author: ROWLEY, President Judge:

text:
    598 A.2d 290
    John H. ENGLE, William R. Engle, William C. Engle, t/d/b/a Engle’s Holiday Harbor, a Partnership, and as Representative of a Class, Appellants, v. WEST PENN POWER COMPANY, a Corporation. John H. ENGLE, William R. Engle, William C. Engle, t/d/b/a Engle’s Holiday Harbor, A Partnership, and as Representative of a Class v. WEST PENN POWER COMPANY, a Corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued April 23, 1991.
    Filed Sept. 9, 1991.
    Reargument Denied Nov. 4, 1991.

      Brian W. Ashbaugh, Pittsburgh, for appellant (at 1558) and appellee (at 1449).
    C. James Zeszutek, Pittsburgh, for appellant (at 1449) and appellee (at 1558).
    Before ROWLEY, President Judge, and CAVANAUGH and HESTER, JJ.
   ROWLEY, President Judge:

This action has its origin in the “Election Day Flood” of November 3-6,1985. Appellants John H. Engle, William R. Engle, and William C. Engle, t/d/b/a Engle’s Holiday Harbor, a partnership, brought the action against West Penn Power Company (“West Penn”), owner and operator of the Lake Lynn Dam on the Cheat River in West Virginia, in an attempt to recover for property damage incurred in the flood. The Engles were certified as representatives of a class consisting of all persons or entities who suffered property damage in Pennsylvania between November 3 and 6, 1985, as a result of West Penn’s actions “in obstructing and/or releasing improperly flood waters from the Lake Lynn Dam and/or failing to adequately notify such individuals or entities.”

In their appeal, docketed in this Court at No. 1449 Pittsburgh 1990, from the judgment entered on the jury’s verdict in favor of West Penn, the Engles contend that the trial court erred in admitting evidence of damages incurred by persons located upstream of the Lake Lynn Dam. In its cross-appeal, docketed in this Court at No. 1558 Pittsburgh 1990, West Penn contends that 1) the trial court erred in permitting trial to proceed on a failure to warn theory, and 2) the trial court lacked subject matter jurisdiction, inasmuch as the Federal Power Act places the present action within the exclusive jurisdiction of the federal district courts. For the reasons set forth below, we affirm the judgment entered in favor of West Penn.

An understanding of the Lake Lynn Dam’s location and function is essential to our review. The Cheat River flows north through West Virginia and joins the Monongahela River at Point Marion, Pennsylvania, just north of the Pennsylvania-West Virginia border. The Lake Lynn Dam is located on the Cheat River in West Virginia, several miles south, or upstream, of the point at which the Cheat joins the Monongahela. The Monongahela flows north from Point Marion past Greene and Washington counties to the west and Fayette and Westmoreland counties to the east, eventually combining with the Allegheny River to form the Ohio River at Pittsburgh in Allegheny County. The marina owned by the Engles, the lead plaintiffs in this action, is located in Washington County at the confluence of Ten Mile Creek and the Monongahela River. All of the members of the plaintiff class are persons or entities located north, or downstream, of Lake Lynn Dam; most of the class members are residents of or entities located in Washington County.

The Lake Lynn Dam is a hydroelectric dam. As Dr. James Romualdi, an expert witness for West Penn, explained at trial, it is a “run of the river dam” (N.T. at 669) rather than a flood control dam. Hydroelectric projects such as the Lake Lynn Dam are federally licensed and regulated. As this Court has explained,

Congress created the Federal Power Commission (now the Federal Energy Regulatory Commission [FERC]) to carry out the task of establishing federal regulations over most wholesale transactions of electric and gas utilities engaged in interstate commerce. See Federal Power Act of 1935 (Title II of the Public Utility Act of 1935), 49 Stat. 838-863....

Engle v. West Penn Power Company, 366 Pa.Super. 104, 112, 530 A.2d 913, 917 (1987), alloc. denied, 518 Pa. 626, 541 A.2d 1137 (1988), cert. denied, 488 U.S. 965, 109 S.Ct. 489, 102 L.Ed.2d 527 (1988) (“Engle I”) (citations omitted). Among the regulations issued by the FERC was a requirement, now codified at 18 C.F.R. § 12.20 (1982), that an emergency action plan be prepared for facilities such as the Lake Lynn Dam. As will be discussed in Section I, infra, the adequacy of the warning plan for the Lake Lynn Dam became a central issue in this case.

Between November 3 and 6, 1985, heavy rainfall caused extensive flooding of the Monongahela. In their two-count class action complaint, filed in the Court of Common Pleas of Washington County on November 21, 1985, appellants alleged that their boating and marina business suffered extensive damage as a result of West Penn’s negligence in operating the dam (Count I) or as a result of West Penn’s maintenance of a dangerous instrumentality, i.e., the dam (Count II).

In response, West Penn removed appellants’ action to the United States District Court for the Western District of Pennsylvania, asserting that the Federal Power Act, 16 U.S.C. §§ 803(c) and 825p, conferred exclusive jurisdiction over appellants’ claims on the federal district courts. The Engles then moved to remand the case to the state court. In an order entered March 13, 1986, the federal district court granted the motion to remand, noting in an accompanying opinion that because no federal claims appeared on the face of the Engles’ complaint and there was no basis for concluding that the Engles had sought by “artful pleading” to avoid stating a federal claim, West Penn had failed to carry its burden of establishing federal jurisdiction. The court explained that “[w]hen a plaintiff presents a state law claim and a defendant counters by arguing that federal law preempts the state law on which plaintiff relies, the federal claim appears by way of defense and does not provide an adequate basis for removal.” Engle v. West Penn Power Company, Civil Action No. 85-2924, slip op. at 4 (W.D.Pa. Mar. 13, 1986). The Court added, however, that “[i]n remanding the case, this Court has made no determination on the merits of defendant’s contention that plaintiffs’ claims are within the exclusive jurisdiction of the federal courts and are, therefore, totally preempted by federal law. Defendant is free to raise these questions in the state court.” Id. at 7 n. 3.

After the case was remanded to the Court of Common Pleas, West Penn filed preliminary objections in which it renewed its claim that the Court of Common Pleas lacked subject matter jurisdiction over the Engles’ action. By order and opinion dated August 4, 1986, the trial court dismissed with prejudice West Penn’s preliminary objection as to subject matter jurisdiction. At West Penn’s request the trial court certified the interlocutory order pursuant to 42 Pa.C.S. § 702(b), and West Penn then obtained this Court’s permission to appeal from the order. In its appeal to this Court, West Penn restated its contention that the action was within the exclusive jurisdiction of the federal courts. This Court held, however, that the courts of this Commonwealth have jurisdiction to hear and decide the claims formulated by appellants, Engle I, supra, and the case proceeded in the Court of Common Pleas.

In an order entered October 3, 1988, and amended October 27, 1988, the trial court certified the following plaintiff class:

All individuals or entities who suffered property damage in Pennsylvania between November 3 and November 6, 1985, as the result of the actions of West Penn Power Company, in obstructing and/or releasing improperly flood waters from the Lake Lynn Dam and/or failing to adequately notify such individuals or entities.

In the same order, the trial court stated that the class action would be limited to the following issues:

1. Whether the defendant, West Penn Power Company, during November 1985 was negligent in obstructing and or [sic] releasing improperly flood waters from the Lake Lynn Dam during November 3-6, 1985 and/or in failing to adequately notify the individuals or entities who suffered property damages.
2. Whether the negligent actions, if any, of the West Penn Power Company during the aforesaid period was a proximate cause of property damages suffered by the plaintiffs.
3. Whether the maintenance and operation of the hydroelectric project known as the Lake Lynn Dam, by its [sic] defendant West Penn Power Company, was an abnormally dangerous activity of the defendant, and whether the maintenance of such alleged dangerous instrumentality by the defendant Power Company was a proximate cause of any harm to the plaintiffs.

On September 7, 1988, West Penn filed motions for judgment on the pleadings and for summary judgment. In an order entered August 7, 1989, the trial court denied the motion for judgment on the pleadings and for summary judgment on Count I of the amended complaint, but granted summary judgment in favor of West Penn on Count II, which stated a claim of strict liability resulting from the maintenance of an abnormally dangerous instrumentality.

The case went to trial before a jury in September 1989. At the close of appellants’ case West Penn presented a motion for a compulsory nonsuit, contending, inter alia, that 1) the plaintiffs had failed to present evidence on the issue of the alleged improper release of water from the dam and 2) they had not included in their complaint a cause of action based on West Penn’s alleged failure to warn and had failed to establish that West Penn had a duty to warn. After appellants’ counsel conceded that they had not presented sufficient evidence concerning the alleged improper release of water, the court entered a compulsory nonsuit on that issue and ruled that “the case will continue only on the issue of the alleged failure to warn” (N.T. at 286). The jury’s verdict was that West Penn was negligent but that West Penn’s negligence was not a substantial factor in bringing about the harm suffered by the appellants. Appellants’ post-trial motions were denied by the trial court in an order entered August 28, 1990, judgment was entered on the verdict, and appellants’ timely appeal, as well as West Penn’s cross-appeal, followed.

Ordinarily we would address the issues raised by appellants in their direct appeal before considering the issues raised by West Penn in its cross-appeal. However, in its cross-appeal West Penn renews its contention that the courts of this Commonwealth do not have subject matter jurisdiction over the present action. Because a court may not decide the merits of issues that are not properly before it, see Commonwealth v. Maguigan, 511 Pa. 112, 120-21, 511 A.2d 1327, 1331 (1986), we turn first to an examination of the issues raised in the cross-appeal.

I. CROSS-APPEAL AT NO. 1558 PITTSBURGH 1990

A. Jurisdiction

In its cross-appeal West Penn raises two issues: 1) whether the trial court erred in permitting trial to proceed on a theory of failure to warn, and 2) whether the trial court lacked subject matter jurisdiction over the action. These issues are interrelated in appellant’s argument, which is as follows: In their complaint appellants did not plead a cause of action for failure to warn, nor did they refer to such a cause of action when they sought class certification. In addition, as this Court noted in considering the trial court’s dismissal of West Penn’s preliminary objections,

[n]o assertion is made by the plaintiffs concerning the violation of any federal law, rule, regulation or order, nor is the cause of action brought to enforce any liability or duty created by or to enjoin any violation of any federal law.

Engle I, 366 Pa.Super. at 114-15, 530 A.2d at 918-19.

Nevertheless, West Penn’s argument continues, after appellants realized that they would be unable to prove that West Penn had been negligent in the operation of the dam, they abandoned their negligence action and were permitted to pursue a “failure to warn” theory. The essence of this theory is that under the West Penn Power Emergency Action Plan, which was prepared by West Penn in response to a requirement of the FERC, West Penn assumed a duty to warn and therefore was liable under Section 323 of the Restatement (Second) of Torts for the negligent performance of that duty. By choosing to proceed on this theory, however, appellants brought their action within the exclusive jurisdiction of the federal district courts, since the Federal Power Act, 16 U.S.C. § 825p, states that the federal district courts “shall have exclusive jurisdiction of violations of this chapter or the rules, regulations, and orders thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by, or to enjoin any violation of, this chapter or any rule, regulation, or order thereunder.” Therefore, West Penn contends, “[t]he Engles are in a catch 22; without the Plan, there is no claim; but with the Plan, there is no jurisdiction” (Brief for Appellee at 40).

Appellants contend that the “failure to warn” theory allegedly raised for the first time during trial was in fact the same theory that had been raised in their complaint. They maintain that the FERC required West Penn to develop an Emergency Action Plan to cope with a dam break, not with severe floods unrelated to a failure of the dam, and that they have not challenged the sufficiency of the federally mandated provisions of the Plan. According to appellants, West Penn voluntarily assumed a duty to warn downstream residents of severe floods, and appellants’ “failure to warn” theory is based on West Penn’s alleged breach of that duty.

In order to resolve the issues raised in West Penn’s cross-appeal, we are first required to determine the nature of the failure to warn claim raised by appellants. As West Penn notes, the word “warning” does not appear in appellants’ class action complaint. The only statement that could be construed as a reference to such a claim is the following paragraph in Count I:

24. On or about November 5, 1985, defendant West Penn, without notice and without regard to the safety of individuals and property along the Monongahela River, opened gates of the dam to allow the release of water from the dam’s lake.

(Emphasis added.) Appellants’ amended complaint made no additional references to warnings or notice.

In their motion for class action certification, however, appellants “purport[ed] to represent owners of land and other property who suffered damages as the result of the conduct of West Penn ... in releasing water from Lake Lynn Dam and in failing to properly notify Plaintiffs of its actions” (Motion for Class Action Certification at 1). In addition, they averred that

Defendant West Penn failed to adequately notify residents of Washington County through its failure to include Washington County Emergency Management personnel in the Emergency Action Plan developed by West Penn.

Id. In its response to the motion for class action certification, West Penn asserted that

there is no common question of fact or law concerning West Penn’s operation of the reservoir and/or whether West Penn properly notified any of the purported plaintiffs, because the plaintiffs will not be able to establish that any possible operation of the reservoir or the dam or the failure to warn or any other activity by West Penn was a common element of fact or law in the current situation.

West Penn’s Opposition to Motion for Class Action Certification at 7 (emphasis added). At a hearing held on April 19, 1988, counsel for appellants made the following statement:

At this particular time, Your Honor, we have to show, for class action certification, that there are common questions. The common question is the fact that West Penn Power did nothing about the rise in the gauges at Parsons, and nothing to reduce the level of the lake, had this flood wave coming down, did not give any warning whatsoever to these people.

N.T. at 83 (emphasis added).

Before the trial court ruled on the issue, appellants filed an amended motion for class action certification in which they asserted that a common question of fact was “[w]hether Defendant West Penn failed to notify the residents of Washington County through its failure to include Washington County Emergency Management personnel in the Emergency Action Plan developed by West Penn” (Amended Motion for Class Action Certification at 3) and that a common question of law was whether West Penn had thereby been negligent. A second day of hearings on the motion for class action certification was held on May 19, 1988. At the hearing counsel for West Penn explained that West Penn had filed a motion to strike appellants’ amended motion for class action certification because the motion was in reality a motion to amend the complaint by adding “as an alleged common issue of fact, a failure to warn or notify, which was not contained in Count I of the original complaint ...” (N.T. at 5). After considering appellants’ counsel’s assertion that lack of warning was raised in paragraph 24 of the original complaint, the trial court denied West Penn’s motion to strike the amendment. As noted earlier, one of the issues for which class certification was ultimately granted by the trial court was whether West Penn was negligent “in obstructing and or [sic] releasing improperly flood waters from the Lake Lynn Dam during November 3-6, 1985 and/or in failing to adequately notify the individuals or entities who suffered property damages.”

In their pretrial statement appellants explained their failure to warn claim as follows: In 1979, at the direction of the FERC, West Penn developed an Emergency Action Plan which specified a series of alerts to be given to local community emergency management authorities. “By initiating such a plan, West Penn, as an observer of climatological events and their effect on the Cheat River, placed itself in the position of warning downstream residents” (Pretrial Statement at 5). Although the Plan was based on an engineering study of the downstream effects of a complete failure of the dam, West Penn also used the Plan to alert local community management authorities to serious flood conditions unrelated to a break in the dam. However, the Plan called for West Penn to alert only the Fayette and Greene County authorities, as these were the only possible areas of inundation under the “dam break” analysis. West Penn had never done a study to determine whether the potential inundation areas for a severe flood, unrelated to a dam break, would be the same as those for a dam break; in fact, they would not be the same.

Because West Penn never performed an inundation study for severe floods, Washington County was not included in the Emergency Action Plan. No telephone calls were made to Washington County by West Penn, nor was there any discussion at Lake Lynn Dam about notifying Washington County. West Penn only notified Fayette and Greene Counties during the night of November 4 and 5, 1985.

Pretrial Statement at 8-9. Thus, “West Penn failed to warn the residents of counties other than Fayette and Greene ... because of the failure to include these geographical areas in the Emergency Action Plan” (Pretrial Statement at 10).

West Penn’s motions for judgment on the pleadings and summary judgment led to additional statements concerning appellants’ failure to warn claim. In its brief in support of the motions, West Penn argued that appellants had failed to plead a cause of action for “failure to warn” and that in any event West Penn had no such duty. In their responsive memorandum of law, appellants asserted that “if West Penn had properly developed an appropriate warning plan, downstream residents would have had warning of the imminent flooding” (Plaintiffs’ Memorandum of Law at 14). They explained their claim as follows:

Significantly, West Penn Power’s Warning and Evacuation Plan stated that West Penn Power established itself as an agency which would: “provide an effective public flood warning and evacuation system for use in the event of a severe flood or assumed failure of the Lake Lynn Dam.” Warning and Evacuation Plan [emphasis added by appellants].
Regardless of whether West Penn Power chooses to call its plan a “notification” or “warning” plan, the power company assumed the role of “warning” or “notifying” the public of imminent severe flooding.
Not only have Plaintiffs pleaded a failure to warn case, but genuine issues of fact exist as to whether West Penn properly developed a flood warning plan at all, even though it held its plan out as such to the public. Although West Penn had no idea whether the inundation areas were the same for flooding and dam breaks, the warning system was simply assumed to be the same. Finally, alternative independent grounds based on rainfall were incorporated into the Warning Plan, but West Penn never monitored the rainfall figures at the specified locations.
Genuine issues of fact exist as to whether West Penn adequately notified downstream residents of the Election Day Flood. This issue exists because West Penn’s own plan, designed and held out to warn of severe flooding, was seriously flawed from the outset.

Plaintiffs’ Memorandum of Law at 42-45 (citations omitted).

Prior to trial West Penn filed several motions in limine, one of which asked the trial court to exclude arguments or evidence regarding notification or warning, or the lack thereof. The motion was denied. Before the start of trial the court stated that one of the questions to be decided by the jury would be “whether the defendant ... was negligent in obstructing and/or releasing improperly flood waters from the Lake Lynn Dam during November 3-6, 1985, and/or in failing to adequately notify the individuals or entities which suffered property damages ...” (N.T. at 12).

At trial, as West Penn points out, appellants’ expert witness, Thomas Cahill, offered the opinion that West Penn’s Warning Plan was “totally inadequate in terms of warning” downstream residents (N.T. at 108). Asked for the basis of his opinion, he explained that

the plan, itself, only sets out a very limited area of potential impact, and in fact, they only anticipated based on that dam break situation, impacts going into Greene and Fayette Counties, and in fact, the flood effects carry all the way down into Washington County, and beyond. So they greatly underestimated the areas downstream that would be affected by a flood on the Cheat River.

N.T. at 108. Mr. Cahill acknowledged on cross-examination, however, that he was aware that West Penn’s Emergency Action Plan had been accepted by the FERC and by the Pennsylvania Emergency Management Agency.

At the close of the plaintiffs’ case, as noted earlier, West Penn moved for a compulsory nonsuit. Clarence Crumrine, counsel for West Penn, C. James Zeszutek, counsel for the appellants, and the trial court then engaged in the following discussion:

Mr. Crumrine: As Your Honor knows, there has been much discussion of what duties, if any, were owed by West Penn Power Company. The fact is, under the law of Pennsylvania, there is no duty to warn____ [T]here is no duty to warn absent the plaintiffs proceeding somehow under the Emergency Action Plan, which is back to the final question.
Mr. Zeszutek: If it please the Court, we have been around and around on the failure to adequately notify under the West Penn Power Emergency Action Plan.
The Court: Then the remaining issue is this failure to warn.
Mr. Zeszutek: Failure to warn, under the West Penn Power Emergency Action Plan. Your Honor, the Plan, itself, through the course of the years, it has been shown that West Penn Power undertook to warn people on the river of the Cheat River Basin waters. In essence, it has been the watchdog of the river because of its position on the river.
The Court: It’s not the only watchdog on the river. I mean, there’s a lot of other agencies involved, are there not?
Mr. Zeszutek: Yes, sir, but it does not absolve West Penn Power of the actual knowledge they have as to this actual Emergency Action Plan of 1979 and the revisions where it undertook to notify the public downstream. By taking on that duty, West Penn Power had an obligation under the Restatement, Section 323, and under 323(a) where one undertakes such a duty, they have the duty to carry that particular duty out so as not to increase the harm to those people, the public downstream of Lake Lynn Dam.
The Court: What about the defendant’s claim that you did not properly raise these issues in your pleadings.
Mr. Zeszutek: Your Honor, it was properly raised in the pleadings; it was certified as part of the class question. We have taken—
The Court: Did you allude to these matters in your pretrial statement?
Mr. Zeszutek: Yes, sir. In the pretrial statement and the motion for summary judgment, it was clearly said that West Penn Power failed to warn adequately under its Emergency Action Plan.
The Court: Did you, in your pretrial, question the manner in which the Action Plan had been drawn up?
Mr. Zeszutek: Precisely, yes, sir.
The Court: And had that been responded to by the defendant?
Mr. Zeszutek: They responded to it in the motion for summary judgment in the argument.
The Court: You also discussed in your own pretrial statements that you had properly complied with the duty to warn. Didn’t you raise that? This is no surprise to you, the matter of the failure to warn.
Mr. Crumrine: It’s a surprise to us that this entire case is going off on some warning question.

N.T. at 282-85. The trial court allowed the case to continue on the issue of West Penn’s alleged failure to warn.

Before addressing the merits of West Penn’s jurisdictional challenge, we note that if the question of federal jurisdiction that West Penn now asks us to decide is the same question that was previously presented to and decided by this Court in Engle I, this Court’s decision in Engle I is the law of the case and the matter cannot be reconsidered in this appeal. McCormick v. Columbus Conveyer Company, 522 Pa. 520, 523, 564 A.2d 907, 909 (1989). We conclude, however, that this Court did not confront a “failure to warn” issue in Engle I. It is important to remember that this Court’s previous ruling on subject matter jurisdiction was made at an early stage in the proceedings, when the Court was confronted only with appellants’ complaint and West Penn’s preliminary objections. The complaint, as noted earlier, referred to West Penn’s release of water from the Lake Lynn Dam “without notice,” but there is no mention therein of an alleged “failure to warn” or of a claim based on Section 323 of the Restatement (Second) of Torts. Most importantly, there was no indication at this stage of the proceedings that West Penn’s compliance with a regulation of the FERC would become an issue in the case. Thus, this Court summarized appellants’ claims in general terms:

The two-count complaint sounded in negligence and alleged the defendant’s maintenance of a dangerous instrumentality (the hydro-electric power dam) and the resultant imprudent release of water retained thereby, which, purportedly, was the direct and proximate cause of flooding in the area for which damages in excess of ten thousand dollars were being sought____

Engle I, 366 Pa.Super. at 106, 530 A.2d at 914. The claims stated in the complaint, this Court observed, were grounded "on traditional common law notions of negligence and the alleged maintenance of a dangerous instrumentality....” Id., 366 Pa.Superior Ct. at 114, 530 A.2d at 918. This Court concluded that

[n]o assertion is made by the plaintiffs concerning the violation of any federal law, rule, regulation or order, nor is the cause of action brought to enforce any liability or duty created by or to enjoin any violation of any federal law.

Id., 366 Pa.Superior Ct. at 114-15, 530 A.2d at 918-19. According to West Penn, its compliance with a regulation of the FERC became an issue after appellants realized that they would be unable to succeed on their traditional negligence action. Because no such claim was explicitly presented for this Court’s review in Engle I, the doctrine of law of the case is inapplicable here.

The answers to questions concerning exclusive federal jurisdiction, the United States Supreme Court has held, "depend on the particular claims a suitor makes in a state court — on how he casts his action.” Pan American Petroleum Corporation v. Superior Court of Delaware, 366 U.S. 656, 662, 81 S.Ct. 1303, 1307, 6 L.Ed.2d 584 (1961), cited in Engle I, supra. Our review of the procedural history of the case before us, summarized above, leads us to conclude that appellants have not asserted claims based on violations of the Federal Power Act or of the FERC regulations issued pursuant to the Act, nor do they seek to enforce any liability or duty created thereunder. Instead, they have raised a common law tort claim asserting the negligent performance of a duty — warning downstream residents of severe flood conditions — that was voluntarily assumed by, not statutorily imposed upon, West Penn. Appellants’ expert witness acknowledged that West Penn's Emergency Action Plan had been approved by the FERC; the deficiencies that he perceived in the plan involved the duty to warn that West Penn was alleged to have taken upon itself. Therefore, as the basis of appellants’ claim is not the Federal Power Act or the FERC regulations, but section 323 of the Restatement (Second) of Torts, we conclude that the Court of Common Pleas of Washington County did not lack subject matter jurisdiction over the action.

B. Inadequate Pleading

West Penn also contends that because appellants did not include in their complaint a cause of action for failure to warn, the trial court erred in allowing the case to proceed on such a theory. Because our resolution of appellants’ direct appeal, to which we now turn, is favorable to West Penn, it is not essential that we consider this issue. However, it is evident from our extensive review of the procedural history of the case that West Penn was not surprised by the turn of events now complained of, since a failure to warn claim was clearly stated by appellants as early as the class action certification stage of the proceedings. Accordingly, we conclude that West Penn’s argument is without merit.

II. APPEAL AT NO. 1449 PITTSBURGH 1990

The issue raised by appellants is whether the trial court abused its discretion in permitting West Penn to introduce evidence, in the form of testimony and photographs, of the damage suffered by persons living south, or upstream, of the Lake Lynn Dam. The issue for the jury, appellants point out, was whether West Penn failed to give adequate warning of the impending flood to downstream residents. Therefore, appellants contend, the evidence in question was not relevant to West Penn’s “force of nature” or “vis major*’ defense because the upstream flooding occurred, and its extent was known to West Penn, hours before the flood waters reached the Lake Lynn Dam. Appellants argue that the evidence was also irrelevant because there was no showing that the upstream residents were similarly situated, and therefore were acting under the same circumstances and knowledge, as West Penn or the downstream residents.

In addition, appellants maintain that the introduction of the evidence of upstream damage was unfairly prejudicial because it made the jury aware of the loss of life and extensive devastation suffered upstream and thereby diminished the significance of appellants’ property damage claims in the eyes of the jury. The prejudicial effect of the evidence, appellants claim, is shown by the jury’s “inconsistent” verdict that West Penn was negligent for failing to give adequate warning to downstream residents but that West Penn’s negligence was not a substantial factor in bringing about appellants’ harm. Appellants seek judgment notwithstanding the verdict or a new trial.

In reviewing appellants’ claims, we are mindful of the settled principle that, as a general rule, questions concerning the admissibility of evidence are within the sound discretion of the trial court, and the court’s decision will not be reversed on appeal absent a clear abuse of discretion. Commonwealth v. Cargo, 498 Pa. 5, 15, 444 A.2d 639, 644 (1982); Hatbob v. Brown, 394 Pa.Super. 234, 247, 575 A.2d 607, 613 (1990); Lewis v. Pruitt, 337 Pa.Super. 419, 428, 487 A.2d 16, 20 (1985). We are also guided in our inquiry by the principle that all relevant evidence should be admitted unless a specific rule bars its admission. Commonwealth v. Walzack, 468 Pa. 210, 218, 360 A.2d 914, 918 (1976) [citing 1 Wigmore, Evidence § 9-10 at 289-95 (3d ed. 1940)]; accord In re Adoption of Durham, 320 Pa.Super. 508, 517, 467 A.2d 828, 832 (1983) [citing McCormick, Evidence § 185 at 433 (2d ed. 1972)]. Evidence is relevant if it tends to establish facts at issue, Whistler Sportswear, Inc. v. Rullo, 289 Pa.Super. 230, 243, 433 A.2d 40, 47 (1981), or if it advances the inquiry in some degree and thus has probative value, Commonwealth v. Walzack, supra [citing McCormick, Evidence § 185 at 437-38 (2d ed. 1972)]. Our Supreme Court has held that

[t]he law furnishes no test of relevancy, but tacitly refers it to logic and general experience. Evidence is admissible which tends to make the fact at issue more or less probable or intelligible or to show the origin and history of the transaction between the parties and explain its character.

Gregg v. Fisher, 377 Pa. 445, 454, 105 A.2d 105, 110 (1954) (quoting trial court), quoted in Packel & Poulin, Pennsylvania Evidence § 401 at 121 (1987).

Having reviewed the arguments of the parties and the evidence of record in accordance with the guidelines just stated, we do not agree with appellants that the evidence of upstream damage was irrelevant. In response to appellants’ claims, West Penn raised the affirmative defense of vis major or force of nature (formerly “Act of God”), that is, “the concept of a natural force of such inevitability and irresistibleness that man cannot cope with it, either to predict it, forestall it, or control it when it arrives ... Goldberg v. R. Grier Miller & Sons, Inc., 408 Pa. 1, 8, 182 A.2d 759, 763 (1962), or “an unusual, extraordinary, sudden, and unexpected manifestation of the forces of nature which cannot be prevented by human care, skill or foresight,” Carlson v. A. & P. Corrugated Box Corporation, 364 Pa. 216, 219, 72 A.2d 290, 291 (1950). The relevance of the challenged evidence to West Penn’s forces of nature defense is illustrated by the following exchange between Clarence Crumrine, counsel for West Penn, Paul Tershel, counsel for appellants, and the trial court, which took place when Mr. Crumrine sought to call as a witness Robert Sigler, one of the upstream residents:

Mr. Crumrine: Mr. Sigler is a resident of Albright, West Virginia, and he has two hobbies which are piloting and photography and he combined them, and he has taken pictures all over West Virginia before and immediately after the flood on the Cheat River. He knows something about the flooding and his family home was washed away. He can identify some debris which eventually got to Lake Lynn Dam. He can testify to the terrain and what it’s like since he is a pilot.
The Court: Is this to damage sustained?
Mr. Crumrine: There are pictures of it.
Mr. Tershel: We would object to that as being irrelevant to the issue of whether West Penn failed to warn the people downstream, and that’s the only issue in this case.
Mr. Crumrine: It goes to what used to be an Act of God and is now Forces of Nature, and what happened to Mr. Engle is Forces of Nature.
The Court: Will you have testimony to the effect generally that if warnings were given, all of this damage would have occurred?
Mr. Crumrine: Would you repeat that, Your Honor?
The Court: Generally, whether warnings were given or not, in view of the extent of this flood, that the damage would have been incurred anyway?
Mr. Crumrine: Yes.
The Court: We’ll allow it.

N.T. at 395-96.

As this discussion indicates, a crucial issue was whether the extent of the flood was so great that warnings given by West Penn would not have averted the damage suffered by downstream residents. The evidence of upstream flooding served to expand the jury’s knowledge of the enormity of the flood and thereby advanced the inquiry with regard to this issue. Accordingly, we do not hesitate to conclude that the challenged evidence was relevant.

The Engles also contend that the evidence in question was not admissible because the upstream residents were not similarly situated to the downstream residents, who relied upon warnings from West Penn. It is true that unless a prior accident happened under the same or similar circumstances, evidence of its occurrence will not be admitted. Whitman v. Riddell, 324 Pa.Super. 177, 180-81, 471 A.2d 521, 523 (1984). However, the upstream evidence was not “evidence of an occurrence other than the one at issue” (Brief for Appellants at 17), but rather was evidence of the extent of the “forces of nature” set in motion by the storms of November 3-6, 1985.

Nor do we find merit in appellants’ claim that the evidence, even if relevant, should have been excluded because its prejudicial effect substantially outweighed its probative value. Specifically, appellants object to the numerous photographs of the devastation in upstream communities, as well as to the witnesses’ testimony concerning houses being swept away, logs moving like torpedos, destruction similar to that seen in movies and pictures of the Second World War, and the direct and indirect loss of life as a result of the flooding. According to appellants, the admission of this evidence of upstream devastation served to devalue the seriousness of appellants’ losses in the eyes of the jury.

While the evidence in question undoubtedly provided the jury with graphic descriptions of losses more severe than appellants’, it was admitted for the express purpose of conveying to the jury the enormity of the flood. Any evidence which would establish the existence of a vis major defense would necessarily have to impress upon the jury the scope and severity of the flood in question. Analogously, homicide cases often involve evidence of an extremely unpleasant nature, yet our Supreme Court has held that such evidence is admissible if it would further the inquiry into the defendant’s intent or state of mind. See Commonwealth v. Dollman, 518 Pa. 86, 93, 541 A.2d 319, 321 (1988) (evidence of disposition of victim’s body admissible to prove intent); Commonwealth v. McCutchen, 499 Pa. 597, 602, 454 A.2d 547, 549 (1982) (color slides of victim’s body, showing injuries, admissible for same reason). “The function of the trial court is to balance the alleged prejudicial effect of the evidence against its probative value, and it is not for an appellate court to usurp that function.” Com monwealth v. Dollman, 518 Pa. at 91, 541 A.2d at 321. There is no reason to do so here.

Appellants’ final argument, which is stated as a separate issue in their brief, is that “the irrelevant and prejudicial evidence of upstream damages confused the jury into an inconsistent finding that there was no causal connection between the negligent behavior of West Penn Power and the harm suffered by plaintiffs” (Brief for Appellants at 2). Such a verdict is not inconsistent on its face, however. The following observation of the Third Circuit Court of Appeals, although made in a failure to warn case that was very different from the present one, is nevertheless pertinent to this point:

Ford [the defendant] cannot be held liable on a failure-towam theory merely because a jury concludes that more warnings are needed to remind drivers of the intricacies of standard transmissions. Rather, liability may result only when there is sufficient evidence that additional warnings or reminders may have made a difference.

Conti v. Ford Motor Company, 743 F.2d 195, 199 (3d Cir.1984). In addition, as West Penn points out, appellants did not object to the wording of the jury slip. Finally, we have concluded that the evidence in question was neither irrelevant nor unfairly prejudicial. Accordingly, we conclude that appellants’ final claim does not entitle them to relief.

Judgment affirmed.

      . Section 803(c) states that as a condition of a license granted under the subchapter,
      the licensee shall maintain the project works in a condition of repair adequate for the purposes of navigation and for the efficient operation of said works in the development and transmission of power, shall make all necessary renewals and replacements, shall establish and maintain adequate depreciation reserves for such purposes, shall so maintain and operate said works as not to impair navigation, and shall conform to such rules and regulations as the Commission may from time to time prescribe for the protection of life, health, and property. Each licensee hereunder shall be liable for all damages occasioned to the property of others by the construction, maintenance, or operation of the project works or of the works appurtenant or accessory thereto, constructed under the license, and in no event shall the United States be liable therefor.
      Section 825p states in pertinent part as follows:
      The District Courts of the United States ... shall have exclusive jurisdiction of violations of this chapter or the rules, regulations, and orders thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by, or to enjoin any violation of, this chapter or any rule, regulation, or order thereunder.

      . The trial court’s actual statement was that "[wje’re going to grant the motion for summary judgment insofar as it relates to the failure to properly release waters from Lake Lynn ...” (N.T. at 285-86). In spite of the reference to “summary judgment," it is clear that the court referred to West Penn’s motion for a compulsory nonsuit.

      . § 323. Negligent Performance of Undertaking to Render Services
      One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
      (a) his failure to exercise such care increases the risk of such harm, or
      (b) the harm is suffered because of the other’s reliance upon the undertaking.

      . In its new matter West Penn used the terms "act of God” and “force majeure."

      . To the extent that appellants have intended with this issue to challenge the weight of the evidence, and assuming that such a challenge is cognizable by this Court, we conclude that the trial court has adequately discussed and correctly decided the issue in the opinion of August 28, 1990.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    598 A.2d 302
    Joan WILLIAMS v. OTIS ELEVATOR COMPANY and Philadelphia College of Art. Appeal of OTIS ELEVATOR COMPANY.
    Superior Court of Pennsylvania.
    Submitted April 3, 1991.
    Filed Oct. 8, 1991.

      William V. Coleman, Philadelphia, for appellant.
    Robert A. Gelinas, Philadelphia, for Williams, appellee.
    Cindy J. Baen, Philadelphia, for Philadelphia College of Art, appellee.
    Before WIEAND, OLSZEWSKI and BROSKY, JJ.
   WIEAND, Judge:

Joan Williams fell and sustained injury when, on March 5, 1982, the elevator in which she was riding suddenly lurched as she was exiting on the seventeenth floor of the Philadelphia College of Art (PCA). In a subsequent action against PCA and Otis Elevator Company, which had a contract to maintain the elevator, a jury apportioned negligence as follows: Otis — 55%; PCA — 30%; Williams — 15%. The claim against PCA was subsequently settled, and this aspect of the case is no longer in issue. Post-trial motions filed by Otis, however, were denied, and judgment, including delay damages, was entered against it in the amount of $167,607. On appeal, Otis argues that the evidence was insufficient to show that it was guilty of causal negligence and that the trial court, therefore, should have entered judgment n.o.v. Otis also argues that it is entitled to a new trial because of (1) an improper jury instruction which permitted the jury to find negligence based on res ipsa loquitur as defined in Restatement (Second) of Torts, § 328D, and (2) an erroneous evidentiary ruling by the trial court.

“A judgment n.o.v. may be entered only in a clear case where the facts are such that no two reasonable persons can fail to agree that the verdict is improper.” Lira v. Albert Einstein Medical Center, 384 Pa.Super. 503, 508, 559 A.2d 550, 552 (1989). “In reviewing the sufficiency of the evidence to support the verdict, we view the evidence in the light most favorable to the verdict winner, granting that party the benefit of all reasonable inferences.” Cohen v. Albert Einstein Medical Center, Northern Division, 405 Pa.Super. 392, 398, 592 A.2d 720, 723 (1991), citing Cooper v. Burns, 376 Pa.Super. 276, 280-281, 545 A.2d 935, 937 (1988), allocatur denied, 522 Pa. 619, 563 A.2d 888 (1989). See also: Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 351, 414 A.2d 100, 103 (1980); Reichman v. Wallach, 306 Pa.Super. 177, 184-185, 452 A.2d 501, 505 (1982).

To establish liability on the part of Otis, plaintiff was required to establish by competent evidence that Otis owed to her a duty of care which Otis breached, thereby causing plaintiffs injuries. Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978); Cwiakala v. Paal, 427 Pa. 322, 235 A.2d 145 (1967); Mapp v. Wombucker, 421 Pa. 383, 219 A.2d 681 (1966); Zanine v. Gallagher, 345 Pa.Super. 119, 497 A.2d 1332 (1985). Otis’ duty to plaintiff was defined by its maintenance agreement with PCA. In Evans v. Otis Elevator Co., 403 Pa. 13, 168 A.2d 573 (1961), this duty was defined by the Supreme Court as follows:

The orbit of Otis’ duty to third persons is measured by the nature and scope of [its] contractual undertaking ... and, if, ... Otis undertook to inspect the elevator at regular intervals, and, if the elevator was in a defective or dangerous condition discoverable by reasonable inspection, Otis would be liable to third persons, regardless of any privity of contract, who might be injured by Otis’ failure to properly perform its contractual undertaking of inspection. Such principle finds support in reason, justice and precedent: Dahms v. General Elevator Co., 214 Cal. 733, 7 P.2d 1013 [1932]; Higgins v. Otis Elevator Co., 69 Ga.App. 584, 26 S.E.2d 380 [1943]; Koch v. Otis Elevator Co., 10 App.Div.2d 464, 200 N.Y.S.2d 700 [1960]; Jones v. Otis Elevator Co., 234 N.C. 512, 67 S.E.2d 492 [1951]; Durham v. Warner Elevator Mfg. Co., 166 Ohio St. 31, 139 N.E.2d 10 [1956]; Wolfmeyer v. Otis Elevator Co., (Mo.) 262 S.W.2d 18 [1953]; Banaghan v. Bay State Elevator Co., 340 Mass. 73, 162 N.E.2d 807 [1959]; Delgaudio v. Ingerson, 19 Conn.Supp. 151, 110 A.2d 626 [1954]; Westinghouse Electric Elevator Co. v. Hatcher, 133 F.2d 109 [5th Cir.1943]; Pastorelli v. Associated Engineers, Inc., 176 F.Supp. 159 [D.R.I.1959].

Id., 403 Pa. at 19, 168 A.2d at 576. See also: Bethay v. Philadelphia Housing Authority, 271 Pa.Super. 366, 381-382, 413 A.2d 710, 717 (1979).

Plaintiff-appellee’s fall occurred as she was exiting elevator # 3. This elevator was subject to a maintenance agreement by which Otis had agreed to “regularly and systematically examine, adjust, lubricate as required, and if conditions warrant, repair or replace [certain component parts of the elevator].” Otis also had agreed to provide “call back” service, i.e., to inspect and repair the elevator upon notice from PCA that a problem existed.

The evidence in this case was sufficient to permit a jury to find that Otis had negligently performed its contract to maintain the elevator in a state of good repair. The “call back” maintenance record for elevator # 3 revealed a steadily increasing number of reported problems. Plaintiff then offered the opinion of John Allen, an elevator consultant, that Otis had failed to respond properly to the “call backs” by adequate inspection and repair. Allen said that Otis should have been alerted to an uncorrected defect in the elevator by the number of “call backs” which exceeded the industry average. He opined that the lurching of the elevator was symptomatic of a leveling problem which was caused most likely by a defect in component parts, such as the brushes, brakes or leveling switches, which Otis had specifically agreed to inspect and maintain. This evidence, we conclude, was sufficient to support the plaintiff-appellee’s contention at trial that if Otis had conducted more comprehensive inspections to the repeated “call backs” made by PCA, the source of the leveling defect would have been found and corrected. It was not essential to a recovery that appellee’s evidence point unerringly to the specific defect which caused the elevator to lurch.

Plaintiff-appellee’s evidence that her injuries were caused by appellant’s negligence was also sufficient to support the verdict. William H. Simon, M.D., the orthopedic surgeon who had operated on her knee and who had treated her for back injury, testified as follows:

Q. Now, Doctor, based upon the history obtained from the patient, the results of your physical examination and your review of the various tests that you described, were you able to formulate an opinion based on a reasonable degree of medical certainty as to what the cause of Joan Williams’ complaints were?
A. Yes.
The cause was an injury to her knee and her back sustained when she fell out of an elevator back in ’82, March 5th.

This opinion testimony, given with the requisite degree of certainty, was sufficient to support the verdict. The weight and credibility of Dr. Simon’s testimony were solely for the jury to determine. Melzer v. Witsberger, 505 Pa. 462, 476 n. 9, 480 A.2d 991, 998 n. 9 (1984); Shearer v. Insurance Co. of North America, 397 Pa. 566, 571, 156 A.2d 182, 184 (1959); Standard Pipeline Coating Co., Inc. v. Solomon & Teslovich, Inc., 344 Pa.Super. 367, 377, 496 A.2d 840, 846 (1985); Wilson v. Benjamin, 332 Pa.Super. 211, 221, 481 A.2d 328, 333 (1984).

Section 328D of the Restatement (Second) of Torts, which was adopted by the Supreme Court of Pennsylvania in Gilbert v. Korvette, Inc., 457 Pa. 602, 327 A.2d 94 (1974), provides that

(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when
(a) the event is of a kind which ordinarily does not occur in the absence of negligence;
(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.

This principle has been applied to cases in which machinery has malfunctioned but where there is no evidence to identify the specific reason for such malfunction. See: McGowan v. Devonshire Hall Apartments, 278 Pa.Super. 229, 237-238, 420 A.2d 514, 518 (1980). See also: Carney v. Otis Elevator Co., 370 Pa.Super. 394, 536 A.2d 804 (1988). It was in accordance with this rule that the trial court instructed the jury in the instant case.

Appellant argues that, although the principle of Section 328D may be applicable to the owner of the building, which had exclusive possession of the elevator, it can have no application to the elevator company whose duty was limited to making periodic inspections in accordance with the provisions of the maintenance agreement. The difficulty with this argument is that it has previously been rejected by both the Supreme and Superior Courts. It was first rejected by the Supreme Court in Gilbert v. Korvette, Inc., supra, where a child’s foot had become caught in an escalator and had been pulled into the comb plate. In adopting and applying Section 328D of the Restatement (Second) of Torts as a rule of circumstantial evidence against the elevator company which maintained the escalator, the Court said:

Section 328D not only abrogates formalistic distinctions based on substantive duty, but also eliminates another complication inherent in our prior rules. Formerly, it had been stated in some decisions that “exclusive” management or control by the defendant of the injury-producing instrumentality was a prerequisite to res ipsa loquitur or exclusive control.
The Restatement rule, however, disavows the requirement of exclusive control. A party’s negligence may be inferred when “other responsible causes ... are sufficiently eliminated by the evidence.” Restatement (Second) of Torts § 328D(1)(b) (1965). Exclusive control may eliminate other causes, but the critical inquiry is not control but whether a particular defendant is the responsible cause of the injury. Responsibility, of course, may be shared by two or more defendants. See W. Prosser, Handbook of the Law of Torts § 39, at 221 (4th ed. 1971). Consequently, if responsibility is vested in and shared by two or more parties, each may be subjected to liability under the rule we adopt. See Restatement (Second) of Torts § 328D, comment g, illustration 8 (1965); Annot., 38 A.L.R.2d 905 (1954); 58 Am.Jur.2d Negligence § 503 (1971).

Id., 457 Pa. at 613-615, 327 A.2d at 100-102. Exclusive control is merely one way of proving a defendant’s responsibility. “He may be responsible, and the inference may be drawn against him, where he shares the control with another.” Restatement (Second) of Torts, § 328D, comment g. Thus, the inference may be drawn jointly against the owner of an elevator and the elevator company which maintains the same. Johnson v. Otis Elevator Co., 225 Pa.Super. 500, 502, 311 A.2d 656, 657 (1973). See also: Carney v. Otis Elevator Co., supra; Williams v. Eastern Elevator Co., 254 Pa.Super. 393, 386 A.2d 7 (1978).

Appellant also contends that the trial court’s instruction that the jury could infer negligence from the happening of the accident was improper because the plaintiff-appellee had introduced direct evidence that the elevator company had been negligent in inspecting and maintaining the elevator. There is no merit in this argument.

While it is true that a res ipsa loquitor instruction is not warranted in the face of clear and indubitable proof of negligence, it is also true that a res ipsa loquitor charge is appropriate where the facts of a case lie somewhere in a grey zone “between the case in which the plaintiff brings in no evidence of specific acts of negligence, and therefore must rely on the res ipsa loquitur inference alone, and the case in which the defendant’s negligence ‘can be clearly and indubitably ascertained’ from the plaintiff’s evidence, Farley v. Philadelphia Traction Company, 132 Pa. 58, 18 A. 1090 (1890), and therefore the plaintiff need not rely on the res ipsa loquitur inference at all.” Hollywood Shop, Inc. v. Pa. Gas & Water Co., 270 Pa.Super. 245, 252-53, 411 A.2d 509, 513 (1979).

Smith v. City of Chester, 357 Pa.Super. 24, 29-30, 515 A.2d 303, 306 (1986), appeal dismissed, 517 Pa. 362, 537 A.2d 812 (1988). See also: Weigand v. Pennsylvania Railroad Co., 267 F.2d 281 (3d Cir.1959). Plaintiff’s elevator expert in this case was unable to identify the exact cause of the accident. Under these circumstances, the trial court could properly instruct the jury on circumstantial evidence.

Finally, Otis contends that the trial court committed reversible error when it excluded evidence regarding plaintiff’s real estate holdings and personal income. Otis sought to introduce this evidence to support its contention that plaintiff had not obtained employment because she was economically secure rather than because of any disability. Questions concerning the relevancy of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent a clear abuse of that discretion. Hatbob v. Brown, 394 Pa.Super. 234, 247, 575 A.2d 607, 613 (1990); Leonard by Meyers v. Nichols Homeshield, Inc., 384 Pa.Super. 1, 5, 557 A.2d 743, 745 (1989), allocatur denied, 525 Pa. 584, 575 A.2d 115 (1990); Egelkamp v. Egelkamp, 362 Pa.Super. 269, 274, 524 A.2d 501, 504 (1987). Instantly the trial court concluded that the evidence was arguably relevant but that its “dubious probative value ... [was] substantially outweighed by the prejudice that would accrue.” We conclude that the evidence of plaintiffs real estate holdings, investments and income therefrom was properly excluded because it had no probative value in determining whether plaintiff had sustained injuries which impacted upon her capacity to engage in employment. The issue was whether appellee had been so disabled as to affect adversely her earning capacity and not whether she was in economic need of employment.

Because the evidence was sufficient to support the verdict and because the trial was free of error, the judgment entered on the verdict of the jury must be, as it is,

Affirmed.

      . An appellate court may affirm the trial court for reasons other than those given by the trial court. See: Kline v. Blue Shield of PA, 383 Pa.Super. 347, 351-352, 556 A.2d 1365, 1368 (1989); Jones v. P.M.A. Ins. Co., 343 Pa.Super. 411, 413 n. 1, 495 A.2d 203, 204 n. 1 (1985).


author: ROWLEY, President Judge: CIRILLO, Judge,

text:
    598 A.2d 306
    COMMONWEALTH of Pennsylvania v. Daniel NATION, Appellant.
    Superior Court of Pennsylvania.
    Argued May 8, 1991.
    Filed Oct. 24, 1991.

      Lyn R. Bailey, Asst. Public Defender, Lancaster, for appellant.
    Brian E. Chudzik, Asst. Dist. Atty., Lancaster, for Com.
    Before ROWLEY, President Judge, and CIRILLO and JOHNSON, JJ.
   ROWLEY, President Judge:

This is a timely appeal by Daniel Nation from a judgment of sentence imposed following his conviction of possession with intent to deliver cocaine. Appellant argues that the trial court erred in refusing to suppress evidence as fruit of the poisonous tree. In support of this argument, appellant has presented two issues for our review:

1) whether a search warrant is illegal when, after an arrest on a fugitive warrant, a search warrant is requested that lists as probable cause the facts of the fugitive status of the arrestee, and identifies as items to be searched for, documentation of aliases and movement of the fugitive; and
2) whether the first search warrant was facially deficient since it failed to provide any substantiated basis to believe that the desired documents would be found at the location to be searched.

Having thoroughly reviewed the record and considered the arguments presented, we vacate the judgment of sentence and remand this case for a new trial.

I. FACTUAL HISTORY

The scope of review of a suppression court’s denial of a motion to suppress is firmly established.

The suppression court must make findings of fact and conclusions of law in determining whether evidence was obtained in violation of the defendant’s rights. The burden of proving the admissibility of the evidence lies on the Commonwealth’s shoulders; the standard by which the court determines the legitimacy of the search and seizure, and hence the admissibility of the evidence whose suppression has been moved, is that of the preponderance of the evidence. Pa.R.Crim.P. 328(h). On appeal we must determine whether the record supports the factual findings of the suppression court, as well as determine the reasonability of any inferences and legal conclusions drawn from the court’s findings of fact. Commonwealth v. Goodwin, 460 Pa. 516, 522, 333 A.2d 892, 895 (1975); Commonwealth v. Bundy, 458 Pa. 240, 328 A.2d 517 (1974); Commonwealth v. Sharpe, 449 Pa. 35, 296 A.2d 519 (1972); and see Commonwealth v. Burgwin, 254 Pa. Super. 417, 386 A.2d 19 (1978) (Opinion in Support of Reversal, per Price, J.).
In considering whether the record supports the court’s finding of facts we must restrict ourselves to reviewing the evidence presented by the Commonwealth and so much of the evidence of the defense as, fairly read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. O’Bryant, 479 Pa. 534, 537, 388 A.2d 1059, 1061 (1978); Commonwealth v. Hughes, 477 Pa. 180, 383 A.2d 882 (1978); Commonwealth v. Seibert, 274 Pa.Super. 184; 418 A.2d 357 (1980). In addition, where the suppression court’s findings are amply supported by the record they may not be disturbed on appeal. Commonwealth v. O’Bryant, supra; Commonwealth v. Bundy, supra; Commonwealth v. Seibert, supra.

Commonwealth v. Eliff, 300 Pa.Super. 423, 428-29, 446 A.2d 927, 929-30 (1982). In the instant case, the defense presented no witnesses at the suppression hearing, and the Commonwealth’s evidence remained uncontradicted.

In light of the foregoing standard of review, the facts of the instant case are as follows. In late July, 1989, an unidentified tenant of the Covered Bridge Apartments informed Officer Donald Metzger that a fellow tenant, Herbert Curtis, was wanted by law enforcement authorities in Maryland on a charge of murder. S.T. 1/10/90, at 10-11, 38-39. Officer Metzger, who is a Hempfield Township police officer and a member of the county’s drug task force, contacted the manager of the Covered Bridge Apartments, looked at the lease signed by Curtis, and copied down Curtis’ date of birth. S.T. 1/10/90, at 40.

He ran a computer search for outstanding warrants issued for Herbert Curtis but found none. S.T. 1/10/90, at 87. Officer Metzger spoke again to the unidentified tenant, who informed him that Herbert Curtis also used the last name of “Brown.” Officer Metzger ran a computer search for outstanding warrants issued for a person named Brown who had the date of birth which he copied from the lease. This search revealed that an outstanding warrant had been issued for Daniel Brown, who was wanted for a parole violation following a second degree murder conviction in Maryland. Officer Metzger then telephoned Trooper Johnson of the Maryland State Police, Fugitive Unit, who faxed him a list of Daniel Brown’s aliases along with Daniel Brown’s photograph and fingerprints. S.T. 1/10/90, at 11, 27, 41-42. However, the latter two items were nearly unreadable. S.T. 1/10/90, at 27, 41. Officer Metzger contacted the Lancaster City Police who gave him a photograph and fingerprints of Daniel Brown and told him that Daniel Brown had legally changed his name to Daniel Nation. S.T. 1/10/90, at 41-42.

On August 2, 1989, at 5:14 p.m., Officer Metzger and Detective Walters went to the Covered Bridge apartments. They observed appellant, who was accompanied by a black female, drive into the parking lot in a Mercury Topaz. Appellant’s features were similar to those in the photograph of Daniel Brown. The officers advised appellant that he was wanted as a fugitive from justice by the State of Maryland. The officers asked appellant to go back to the police station with them, and he agreed. At the station, the officers observed that appellant’s fingerprints appeared to match those of Daniel Brown. While in custody, appellant admitted that he was Daniel Nation. S.T. 1/10/90, at 12, 29. Appellant was placed in the Lancaster County jail.

On August 3, 1989, at 2:30 p.m., while appellant was in jail, Officer Metzger obtained search warrant No. F-20921 (“Warrant I”) to search appellant’s apartment for documents verifying appellant’s identity and aliases and/or pertaining to appellant’s movements while he was a fugitive. The affidavit of probable cause for the warrant stated as follows:

# 1 That Daniel Brown also known as Daniel Nation, Daniel Sundel Nation, Gerald Sherrod, Herbert Curtis is wanted by the State of Maryland for Parole Violation and is wanted on a bail forfeiture for failing to appear on charges in the State of Maryland. Daniel Brown has an extensive criminal history that included a conviction for 2nd degree Murder and violations of the Maryland drug laws. Daniel Brown has been wanted by the State of Maryland on warrants) since Feb., 1989. An investigation by the East Hempfield Twp. Police Dept, revealed that Daniel Brown was living at N 2056 Swarr Run Rd., East Hempfield Twp. a unit of the Covered Bridge Apt. complex. Brown rented the Apt. using the name; Herbert Curtis, he indicated that he would reside there with a Terry Cohen, to date nothing is known about Terry Cohen. Daniel Brown was arrested by the affiant and others on 2 Aug., 1989 as he arrived in a vehicle at the Hempfield Twp. Apt. At the time of the arrest Brown had identification in the name; Herbert Curtis.
# 2 Although Brown has admitted his name, and is charged with Fugitive from Justice, it is felt that additional documentation as to his variety of names, and his movements will assist in determining his intent as a fugitive and the extent that he went to remain so.

Affidavit, 8/3/89 (emphasis supplied). Warrant I authorized the police to search for:

Any documentation that tends to affirm the identity of Daniel Brown, also known as Daniel Nation, Daniel Sundel Nation, Gerald Sherrod, Herbert Curtis. Any documentation that tends to show the movements of the above subject while wanted on warrants by the State of Maryland.

Warrant I, 8/3/89.

On August 3, 1989, at 2:45 p.m., Officer Metzger, accompanied by Detectives Walters and Blatt, who are also members of both the Hempfield Township police department and the Lancaster County Drug Task Force, executed Warrant I. They found numerous papers bearing the names of Daniel Nation, Daniel Brown, and Herbert Curtis. S.T. 1/10/90, at 16. While searching a closet, the officers discovered a box containing drug paraphernalia. The officers immediately stopped the search, and while Detectives Walters and Blatt remained at appellant’s apartment, Officer Metzger obtained search warrant No. F-20923 (“Warrant II”) to search appellant’s apartment for controlled substances, drug paraphernalia, and assets related to the sale of drugs. The probable cause belief for Warrant II was as follows:

During the execution of a legal Search Warrant, issued on August 3, 1989 by District Magistrate Richard A. Sheetz, Search Warrant No. F20921, this Officer observed Drug Paraphernalia and items used for the manufacturing of Controlled Substances. This officer was looking for documentation when these items were located. Also observed were two (2) locked safes and two (2) locked money boxes, it is believed that documentation relating to the identity of the person and documentation of Drug Assets and Controlled Substances are in the boxes and safes.

Affidavit 8/3/89. On August 3, 1989, at 4:23 p.m., the officers executed Warrant II and discovered, among other things, $108,934.00 in United States currency, over 1,000 grams of cocaine, a $100.00 counterfeit bill, a .25 caliber handgun, and various drug paraphernalia.

Appellant was arrested and charged with possession with intent to deliver cocaine. He filed a motion to suppress, as fruit of the poisonous tree, the evidence seized pursuant to Warrant II. Following the denial of his suppression motion, appellant was convicted in a non-jury trial of possession with intent to deliver cocaine. Post-trial motions were also denied, and appellant was sentenced to seven to twenty years imprisonment.

II. FUGITIVE STATUS

As a person whose parole was revoked after he left Maryland without the permission of his parole officer, appellant was subject to extradition from Pennsylvania as a fugitive from justice. Commonwealth v. Hendrick, 430 Pa. 575, 578 n. 2, 243 A.2d 438, 439 n. 2 (1968). Under the Uniform Criminal Extradition Act, 42 Pa.C.S.A. § 9121 et seq., appellant had the right to require that his identity as the person named in the extradition requisition be established by the weight of the credible evidence. Commonwealth ex rel. Coades v. Gable, 437 Pa. 553, 264 A.2d 716 (1970); Commonwealth ex rel. Edgar v. Davis, 425 Pa. 133, 136, 228 A.2d 742, 744 (1967). The Commonwealth, as the asylum state, is authorized to investigate demands made by the demanding state. 42 Pa.C.S.A. § 9125. Further, the Commonwealth has the duty to ascertain that the person being held by the Commonwealth is the person charged with the crime in the demanding state. 42 Pa.C.S.A. § 9141. The Commonwealth is also authorized to arrest fugitives prior to requisition. 42 Pa.C.S.A. § 9134.

In the instant case, appellant argues that documents pertaining to one’s status as a fugitive are not evidence of a crime under Rule of Criminal Procedure 2002 such that a search warrant may legally issue. Rule 2002 provides as follows:

Rule 2002. Purpose of Warrant
A search warrant may be issued to search for and to seize:
(a) contraband, the fruits of a crime, or things otherwise criminally possessed; or
(b) property which is or has been used as the means of committing a criminal offense; or
(c) property which constitutes evidence of the commission of a criminal offense.

Appellant contends that documents relating to one’s status as a parole violator or fugitive are not “evidence of the commission of a criminal offense,” because one does not commit a “crime” by being a fugitive or violating parole.

Appellant correctly notes that being a fugitive is not a crime under the Crimes Code. See Commonwealth ex rel Marshall v. Gedney, 456 Pa. 570, 321 A.2d 641 (1974); Commonwealth ex rel. Kelly v. Aytch, 254 Pa.Super. 28, 34-35, 385 A.2d 508, 511 (1978). Appellant’s crime was not in his status as fugitive. Rather, appellant’s status as a fugitive stemmed from his parole violation for the underlying crime of second degree murder. See Commonwealth ex rel. Lattimore v. Gedney, 240 Pa.Super. 226, 233, 363 A.2d 786, 790 (1976) (under Uniform Criminal Extradition Act, accused is imprisoned by reason of offense charged in the demanding state; crime charged is that committed in the demanding state). As the asylum state, the Commonwealth is required to ascertain that the person being extradited is the person charged with the crime in the demanding state. 42 Pa.C.S.A. § 9141; Lattimore supra, 240 Pa.Superior Ct. at 237, 363 A.2d at 792. Evidence of a fugitive’s identity aids the Commonwealth in determining whether the fugitive and the person listed in the demanding papers are one and the same. Identification evidence constitutes evidence of a criminal offense in that it identifies the person held as the person indicted for the underlying criminal offense in the demanding state.

Our inquiry does not end with this conclusion, however. In the instant case, the Commonwealth had sufficient proof of appellant’s identity before Warrant I was issued. The Commonwealth had appellant’s photograph and fingerprints, and appellant had admitted his name. See Commonwealth ex rel. Coades v. Gable, supra, 437 Pa. at 555-56, 264 A.2d at 718 (identification evidence need not establish that the person held perpetrated the alleged crime; it need only establish that the person held is the person indicted); Commonwealth ex rel. Reyes v. Aytch, 246 Pa.Super. 287, 369 A.2d 1325 (1976) (identification evidence, that appellant answered to name, knew birth-date, and fit physical description of person in demanding papers, sufficient). Moreover, Warrant I was not issued so that the Commonwealth could ascertain appellant’s identity. The affidavit supporting Warrant I stated:

# 2 Although Brown has admitted his name, and is charged with Fugitive from Justice, it is felt that additional documentation as to his variety of names, and his movements will assist in determining his intent as a fugitive and the extent that he went to remain so.

Affidavit 8/3/89 (emphasis supplied). Appellant’s “intent as a fugitive” and “the extent that he went to remain so” are not proper objects of a search warrant under Rule 2002 of the Pennsylvania Rules of Criminal Procedure. Accordingly, we are constrained to conclude that Warrant I was illegal. Since Warrant I was illegal, the. police officers’ entry into appellant’s apartment to execute Warrant I was unlawful. The drug paraphernalia observed by the police officers at the time of their unlawful entry formed the sole basis for obtaining Warrant II. Consequently, the evidence seized pursuant to Warrant II should have been suppressed as fruit of the poisonous tree. Appellant’s judgment of sentence must be vacated and a new trial awarded.

Judgment of sentence vacated; case remanded for new trial; jurisdiction relinquished.

CIRILLO, J., filed a dissenting opinion.

CIRILLO, Judge,

dissenting.

I respectfully dissent, and would affirm appellant Daniel Nation’s judgment of sentence.

The majority concludes that Warrant I is illegal, and that therefore the evidence seized pursuant to Warrant II was “fruit of the poisonous tree.” The majority first determines that identification evidence is a proper object of a search warrant. It then concludes that because the Commonwealth had Nation’s fingerprints and an admission of his identity, that Warrant I, which sought additional documentation of Nation’s identification and use of aliases, was not issued for the purpose of ascertaining Nation’s identification and was therefore illegal. I disagree with the latter part of this analysis.

Pursuant to the Uniform Criminal Extradition Act, 42 Pa.C.S. § 9121 et seq., (“the Act”), the Commonwealth must establish the identity of the alleged fugitive by a preponderance of the evidence; this is a necessary prerequisite to extradition. See 42 Pa.C.S. § 9123; see also Commonwealth ex rel. Lattimore v. Gedney, 240 Pa.Super. 226, 234, 363 A.2d 786, 792 (1976) (the Commonwealth must prove, before extradition will be granted, that the person being extradited is the person demanded). Section 9141 of the Act prohibits the Commonwealth from inquiring into the guilt or innocence of the accused as to the crime charged in the demanding state, but specifically allows for inquiry “as it may be involved in identifying the person held as the person charged with the crime.” 42 Pa.C.S. § 9141. See Commonwealth ex rel. Coades v. Gable, 437 Pa. 553, 264 A.2d 716 (1969); Commonwealth ex rel. Colcough v. Aytch, 227 Pa.Super. 527, 323 A.2d 359 (1974). Pennsylvania Rule of Criminal Procedure 2002 provides that a search warrant may be issued to search for and to seize

(a) contraband, the fruits of a crime, or things otherwise criminally possessed; or
(b) property which is or has been used as the means of committing a criminal offense; or
(c) property which constitutes evidence of the commission of a criminal offense.

Pa.R.Crim.P. 2002 (emphasis added). The first part of the majority’s analysis concludes that “[identification evidence constitutes evidence of a criminal offense in that it identifies the person held as the person indicted for the underlying criminal offense in the demanding state.” Majority opinion, p. 8. Therefore, identification evidence sought to support a warrant of extradition under the Act is a proper object of a search warrant under Pa.R.Crim.P. 2002. This is a rational and just interpretation of both the Act and our rules of criminal procedure. Without the investigative tools to acquire evidence to support a warrant of extradition, the Commonwealth is unable to effect the purposes of the Act. In my opinion, the analysis need go no further. The majority, however, extends its inquiry into an evaluation and characterization of the objects sought in Warrant I, concluding that the evidence sought did not fall within Pa.R.Crim.P. 2002(c).

The affidavit supporting Warrant I acknowledges that [although [the defendant] has admitted his name, and is charged with Fugitive from Justice, it is felt that additional documentation as to his variety of names, and his movements will assist in determining his intent as a fugitive and the extent that he went to remain so. (Emphasis supplied).

The warrant authorized the police to search for:

Any documentation that tends to affirm the identity of Daniel Brown, also known as Daniel Nation, Daniel Sundel Nation, Gerald Sherrod, Herbert Curtis. Any documentation that tends to show the movements of the above subject while wanted on warrants by the State of Maryland. (Emphasis supplied).

Essentially, the majority reasons that this “additional documentation” was not evidence of identity and concludes, therefore, that the “additional documentation” was not a proper object of a search warrant under Pa.R.Crim.P. 2002(c). I would find that the police department’s decision to secure additional documentation of Nation’s identification and various aliases does not render the warrant illegal under Pa.R.Crim.P. 2002(c), or contravene the scope of inquiry allowed under section 9141 of the Act. I disagree with the majority’s presupposition that the Commonwealth’s identification evidence on hand renders superfluous additional documentation of his identification and various other aliases.

As the majority notes in its recitation of the facts, Officer Metzger’s computer search revealed outstanding warrants for a person named Herbert Brown, whose birth date was the same as that of Herbert Curtis. An unidentified person informed Officer Metzger that Herbert Curtis also used the alias “Herbert Brown.” A computer search revealed that a “Daniel Brown” was wanted for a parole violation following a murder conviction in Maryland. Officer Metzger obtained a photograph and fingerprints of Daniel Brown from the Lancaster City Police. Officer Metzger was also informed that Daniel Brown had legally changed his name to “Daniel Nation.” While in custody, the defendant admitted that he was Daniel Nation. The additional documentation as to the defendant’s variety of names is, in these circumstances, evidence of identity for purposes of an extradition hearing. See 42 Pa.C.S. § 9141. Such evidence is essential to complete the identification chain from Herbert Curtis, to Herbert Brown, to Daniel Brown, and finally to Daniel Nation. In other words, this information is necessary to establish that Herbert Curtis is the person named in the extradition warrant. See Gable, supra; Gedney, supra; Aytch, supra.

In summary, I would find that the evidence sought under Warrant I was proper under Pa.R.Crim.P. 2002(c) and did not exceed the scope of inquiry under section 9141 of the Act. Accordingly, I would conclude that the evidence seized pursuant to Warrant II was not “fruit of the poisonous tree,” and judgment of sentence should be affirmed.

      . The Federal Rules of Criminal Procedure are not applicable to proceedings involving the extradition and rendition of fugitives. F.R.Crim.P. 54(b)(5), 18 U.S.C.A. (1976). Although the Pennsylvania Rules of Criminal Procedure are inapplicable to juvenile proceedings, domestic relations proceedings, and parole revocation hearings, there is no indication that they are inapplicable to proceedings involving fugitives. See Pa.R.Crim.P. 1, 42 Pa.C.S.A. (1989).

      . Appellant also contends that Warrant I was merely a pretext because, in executing Warrant I, the police officers were actually looking for drugs. The police had investigated appellant in early July of 1989, after receiving an informant’s tip that appellant was a drug dealer. However, the police were unable to gather sufficient information to establish probable cause to arrest appellant. Appellant’s Brief, at 9-10; S.T. 1/10/90, at 36. Since appellant has failed to preserve the “pretext" issue in his post-trial motions and in his statement of questions presented, we are unable to address it. Pa.R.Crim.P. 1123; Pa.R.A.P. 2116(a).

      . Appellant also argues that the evidence seized pursuant to Warrant II should be suppressed as fruit of the poisonous tree because Warrant I failed to provide any substantiated basis to believe that the desired documents would be found at the location to be searched. In light of our conclusion that a new trial is required, we need not address this issue. Nonetheless, we conclude that Warrant I's affidavit established with a fair probability that the objects of the search would be found in appellant’s apartment. See Commonwealth v. Jones, 391 Pa.Super. 292, 570 A.2d 1338 (1990); Commonwealth v. Hutchinson, 290 Pa.Super. 254, 434 A.2d 740 (1981); Commonwealth v. Millard, 273 Pa.Super. 523, 417 A.2d 1171 (1979).


author: BECK, Judge:

text:
    598 A.2d 313
    MONROE COUNTY CHILDREN AND YOUTH SERVICES v. Phyllis J. WERKHEISER, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 15, 1991.
    Filed Oct. 28, 1991.

      Mark L. Newman, Asst. Public Defender, Stroudsburg, for appellant.
    Before ROWLEY, President Judge, and BECK and HESTER, JJ.
   BECK, Judge:

The issue in the instant case is whether a parent whose parental rights have been involuntarily terminated by the trial court remains under an obligation to pay support for those children after the trial court’s final order has been entered and during the pendency of an appeal to this court. Appellant, Phyllis Werkheiser, argues that the trial court’s order terminating her parental rights in her children also terminated her obligation to support them. She argues that since no supersedeas was sought or obtained, the mere filing of an appeal to this court did not act to stay the trial court’s order terminating her rights. Therefore appellant contends that the trial court erred in ordering her to pay arrearages in support for the children between the time that the final order was entered and the time the appeal was decided by this court. We agree and reverse.

The issue before us arises in the following procedural context. Appellant, Phyllis Werkheiser, is the natural mother of four children. After it came to light that the two eldest daughters were being sexually abused by their father, the children were placed in foster care. In January, 1987, the trial court ordered appellant to pay child support in the amount of $40.00 biweekly for the support of two of the children who were with foster care families. After seven years of foster care, Monroe County Children and Youth Services instituted proceedings to terminate appellant’s parental rights. On May 10, 1989, the trial court entered a decree nisi granting CYS’ petition to terminate appellant’s parental rights. Exceptions to the decree nisi were dismissed on August 11, 1989. Appellant took an appeal to this court which was decided on July 27, 1990 and which affirmed the decision of the trial court to terminate appellant’s parental rights.

On October 25, 1990, a hearing was held before the support master to determine what if anything remained of appellant’s support obligations. The master recommended that the support order be suspended as of July 27, 1990, the date this court affirmed the termination order. However, the master recommended that appellant be responsible for support between May 10, 1989, the date the decree nisi terminating her rights was entered and July 27, 1990, the date this court affirmed. The master’s report was adopted by the trial court and the support order entered on October 30, 1990. Appellant filed exceptions to the master’s report, claiming that since her rights as a parent had been involuntarily terminated by the trial court, her obligation to pay support for the children had been extinguished as well. On January 15, 1991, the trial court dismissed appellant’s exceptions to the recommendation of the support master and entered an opinion and order making the October 30 order the final order of the court. Appellant filed the instant appeal.

The single important issue raised for our consideration in this appeal is whether a parent whose parental rights have been terminated by a final order of the lower court remains obligated to pay support during the pendency of an appeal to this court. Appellant’s argument is simple and compelling. She argues that the support obligation derives from the parental status which is terminated when the trial court enters a final, appealable order. Once parental rights have been terminated by a final order, the mere filing of an appeal, without more, neither restores them nor suspends the operation of the court’s order. Therefore, appellant contends, just as her parental rights had been terminated by the trial court’s order, so concomitantly had her obligation to support the children. We agree.

It is undisputed that the obligation to support the children flows from the existence of the relation of parent and child. Since the parties agree that termination of parental rights absolves the parent of her duty to pay support the precise issue is when, in the context of a case wherein a terminated parent appeals the trial court’s order, the termination order can be said to have had this effect. We hold that when a final, appealable order is entered by the trial court terminating appellant’s parental rights, her obligation to pay support is also terminated despite the fact that an appeal was taken, where, as here, no supersedeas was sought or obtained.

The parties have directed us to no authority which has previously addressed this precise issue nor has our research revealed any. Therefore, our conclusion is based on general and fundamental principles of appellate jurisprudence developed in case law, appellate procedural rules and statutes.

The trial judge correctly noted that the final order entered in the instant matter did not terminate appellant’s rights. Rather, his decision to order support arrearages was based upon the proposition that appellant’s “appeal to [this court] effected a supersedeas of the trial court’s order terminating her parental rights.” Based on this conclusion, the trial court reasoned that “the status of parenthood continues until such time as the appeal is decided.” Of course, the next reasonable step was also to find, as the trial court did, that “the obligation of support also continues____”. Since the entire construct of the trial court’s reasoning is premised on the erroneous conclusion that the filing of the appeal alone operates as a supersedeas here, the conclusions based thereon cannot stand.

It is a principle of long standing that: “The right of appeal does not automatically carry with it the right of supersedeas.” Wilkinson v. United Parcel Service, 43 A.2d 414, 416, 158 Pa.Super. 34, 39 (1945). See also Shinn v. Stemler, 159 Pa.Super. 129, 47 A.2d 294 (1946). In fact, this ancient proposition recently was reiterated by our court. In Fiore v. Oakwood Plaza Shopping Center, 401 Pa.Super. 446, 465, 585 A.2d 1012, 1021 (1991) we stated: “The mere filing of an appeal does not automatically function as a supersedeas____”. The Rules of Appellate Procedure detail the processes which parties seeking to effect a supersedeas must undertake in order to obtain one. See Pa.R.A.P. 1701 et seq. Other than in an appeal from an order involving solely the payment of money, as provided in Pa.R.A.P. 1731, an appeal does not automatically operate as a supersedeas unless the party makes proper application either to the lower court or to this court. Even then the application must demonstrate the necessity for the relief requested. See Wilkinson, 158 Pa.Super. at 39, 43 A.2d at 416; Shinn, 159 Pa.Super. at 130, 47 A.2d at 295 (“a supersedeas operates in favor of those who ask for and have done the things necessary to obtain it”); see also Fiore, 401 Pa.Super. at 463-466, 585 A.2d at 1021-1022 (parties must properly apply for and demonstrate the need for supersedeas).

The applicable statutory provision governing whether an appeal operates as a supersedeas is 42 Pa.C.S. § 5105(e) (Purdon 1981) which provides in relevant part: “Supersede-as. — An appeal shall operate as a supersedeas to the extent and upon the conditions provided or prescribed by law.” The extent and conditions are outlined in the case law and appellate rules noted above. Absent compliance with these conditions, no automatic supersedeas of the trial court’s order is accomplished just by filing an appeal.

The trial court properly recognizes that there is no direct authority from which one could conclude that an appeal from an order terminating parental rights operates as an automatic supersedeas. Instead the trial court reaches its conclusion by interpreting the “nature” of the termination proceeding. The trial court reasoned that since a petition for termination of parental rights may only be brought when adoption is contemplated, the involuntary termination proceeding is “merely the initial stage of a two-step proceeding resulting in a decree of adoption”.

Next, the trial court cited the general rule regarding the well-established principle that a trial court may not proceed further in a matter from which an appeal has been taken. Pa.R.A.P. 1701(a). From these two general and distinct notions the trial court concluded that the filing of an appeal here prevented it from proceeding with the adoption phase of the process and that therefore the filing of an appeal acted as a supersedeas which prevented the status of parenthood from terminating until the appeal was finally adjudicated. We analyze this matter differently from the trial court.

In the first instance, an appeal generally operates to divest the trial court of jurisdiction and prevents the trial court from taking any further action in the matter during the pendency of the appeal. However, in our view, one cannot extrapolate from this general principle to a conclusion that therefore the trial court’s final order is a nullity until the appeal is decided. If such were the case the rules providing for the obtaining of a supersedeas would be unnecessary. In fact, just the opposite is the case. The taking of the appeal “freezes” the parties’ status as provided in the trial court’s final order, unless a supersedeas or stay has been obtained. While the trial court cannot act except in enumerated circumstances neither can the parties take any action contrary to the final order from which an appeal has been taken, unless the effect of the order has been superseded as prescribed by the rules. See Pa.R.A.P. 1701(b)(2). Moreover, the fact that an involuntary termination proceeding is undertaken in contemplation of adoption does not require a different result. The final order of the trial court terminates the parental rights of the parent unless and until the order is reversed by this court or the effect of the order is superseded by an order for which a party has properly applied. The trial court is correct in noting that adoption is the ultimate, eventual goal when a custodial agency seeks the termination of parental rights. In re B.E., 474 Pa. 139, 144, 377 A.2d 153, 155 (1977). However, it is also true that “when a child is in the custody of an approved adoption agency, it is not necessary that adoption be imminent before the agency may petition to have a parent’s rights terminated.” In re Burns, 474 Pa. 615, 627, 379 A.2d 535, 541 (1977). Furthermore, no particular adoption plan need be shown before the trial court is permitted to terminate a parent’s rights. Id. In fact, the Supreme Court has noted that one of the purposes of the adoption laws is to allow the agency to proceed with termination proceedings independently of an adoption. Id. Thus, while the agency seeking termination of parental rights must retain as its “continuing concern the eventual placement of a child for adoption”, the lack of actual success or immediacy of adoption will not vitiate the termination proceeding. In re B.E., 474 Pa. at 144 n. 5, 377 A.2d at 155 n. 5 (emphasis added). The fact that the trial court cannot proceed with the adoption process does not, in itself, prevent the termination order from becoming final.

Based on the foregoing discussion, we conclude that the filing of an appeal from the order terminating parental rights did not operate as an automatic supersedeas and that, for determining her parental status for support purposes, mother’s parental rights were terminated when a final, appealable order was entered below. All that remains to be decided is when that event occurred in the context of the instant appeal. The resolution of the question is complicated here by the fact that appellant prematurely filed a notice of appeal from the trial court’s dismissal of the exceptions to the decree nisi. As noted above, and as found by this court in our opinion in In re J. W., 396 Pa.Super. at 385, 578 A.2d at 955, an appeal will not lie from an order denying exceptions to a decree nisi. Therefore, this court caused a per curiam order to be entered in the appeal from the termination proceeding which directed appellant to praecipe for the entry of a final decree in the termination case. Pursuant to that order, a final decree was entered on April 10,1990. Thus, on April 10, 1990, when the final order was entered in the termination case, appellant’s parental rights were terminated for purposes of deciding her obligation to pay support for the children. We conclude that appellant’s status as parent terminated when the final decree was issued on April 10, 1990.

Order reversed and case remanded for recalculation of support arrearages consistent with this opinion. Jurisdiction is relinquished.

      . While criminal charges were pending against the father, he committed suicide. Appellant suffered from schizophrenia for which she was treated as an in-patient at a mental hospital for a period of time. Thereafter, appellant was released and held a variety of short term jobs. She changed residences frequently. In November of 1988, the two older daughters who had been the subject of their father’s abuse confronted their mother with the fact that she had known of the abuse for ten months and had failed to protect her children. When appellant refused to accept any responsibility for the suffering caused, her daughters refused to have any contact with her from that time forward. The other daughter also rejected appellant. Only the youngest child, a boy, continued any visitátion with appellant during the years of foster care. This brief recapitulation of the family’s dissolution is taken from our opinion in In re J. W., 396 Pa.Super. 379, 578 A.2d 952 (1990), in which this court affirmed the termination of appellant’s parental rights.

      . The support order indicates that the child support wajs designated for the two youngest children. The record does not reveal further how support was calculated nor does it indicate what if any support had been provided for the two older daughters until they reached majority.

      . As noted by this court in In re J.W., supra note 1, appellant appealed from the denial of exceptions to the decree nisi. Since the denial of exceptions to a decree nisi is an interlocutory order, the appeal was not properly taken. In response to an order by the Superior Court a final order was entered and the Superior Court decided the matter on the merits. The impact of the premature appeal, both on the prior appeal and in this case, will be discussed infra. While the fact that appellant initially failed to take a proper appeal affects the date on which the termination became a final appealable order, the procedural misstep does not affect the underlying principles upon which we decide the instant case.

      . For purposes of clarity especially in this procedurally anomalous case, we will address the actual dates involved after we discuss the general principles which inform our inquiry.

      . The appellate rules give the trial court the power to proceed in enumerated situations including the authority to take action to preserve the status quo and enforce any order entered in the matter, unless the order has been superseded as prescribed by the appellate rules. See Pa.R.A.P. 1701(b)(1) and (2).