author: WIEAND, Judge:

text:
    550 A.2d 1341
    Sally O. MUMMA, now Sally O. Songster, Appellee, v. Robert M. MUMMA, II, Appellant.
    Superior Court of Pennsylvania.
    Argued June 14, 1988.
    Filed Nov. 29, 1988.
    Reargument Denied Jan. 17, 1989.

      Richard B. Wickersham, Harrisburg, for appellant.
    Donald Byrne Hoyt, York, for appellee.
    Before CIRILLO, President Judge, and WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

Sally 0. Songster, appellee, and Robert M. Mumma, II, appellant, are the parents of Robert Mumma, III, who was bom May 12, 1982 and who is known by his parents as “Bo.” The trial court awarded primary custody of Bo to his mother during the school year, with alternating weekends to be spent with his father. During the summer, however, Bo was to divide his weeks on an alternating basis between both parents. His father has appealed from the trial court’s order. After careful review, we affirm.

The parties to this action were married in 1977 and separated in April, 1983. Pursuant to the terms of a property settlement agreement, the parents shared custody of their son, who moved from parent to parent on a weekly basis. On July 10,1985, the appellant-father filed a petition asking the court to confirm joint custody. This was followed, on July 25, 1986, by the mother-appellee’s petition for custody. Following a pre-hearing conference before a court-appointed master, a temporary order was entered awarding primary custody to the mother-appellee. Thereafter, the court held extensive hearings which produced the order from which the father appealed. He has raised two issues for appellate review as follows:

I. DOES THE COURT ORDER OF JULY 2, 1987 REPRESENT THE BEST INTERESTS OF THE CHILD BO IN THE DIVISION OF PARENTAL TIME BETWEEN THE MOTHER AND FATHER?
II. IS IT PROPER FOR COUNSEL FOR THE MOTHER TO SERVE IN SUCH CAPACITY, WHILE AT THE SAME TIME HOLDING A POSITION AS PRE-HEARING OFFICER OR MASTER IN THE YORK COUNTY COMMON PLEAS COURT, DOMESTIC RELATIONS DIVISION.

In an appeal of a child custody determination made by a trial court, the paramount concern must be the best interest of the child. In reviewing a custody order, we are not bound by findings of fact made by the trial court which are unsupported in the record, nor are we bound by the court’s inferences drawn from the facts. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 294-295, 368 A.2d 635, 637 (1977). However, on issues of credibility and weight of the evidence, we defer to the findings of the trial judge, who has had the opportunity to observe the proceedings and the demeanor of the witnesses. Id., 470 Pa. at 295, 368 A.2d at 637. Only where we find that the custody order is “manifestly unreasonable as shown by the evidence of record ...” will an appellate court interfere with the trial court’s determination. Murphey v. Hatala, 350 Pa.Super. 433, 439, 504 A.2d 917, 920 (1986), appeal denied, 516 Pa. 634, 533 A.2d 93 (1987), citing Mielcuszny v. Rosol, 317 Pa. 91, 176 A. 236 (1934); Commonwealth ex rel. Berman v. Berman, 289 Pa.Super. 91, 432 A.2d 1066 (1981). Therefore, unless the trial court’s ruling represents a gross abuse of discretion, we will not interfere with its order awarding custody. Commonwealth ex rel. Rainford v. Cirillo, 222 Pa.Super. 591, 597-598, 296 A.2d 838, 841 (1972), quoted in Lombardo v. Lombardo, 515 Pa. 139, 148, 527 A.2d 525, 529 (1987).

In support of his contention that the trial court abused its discretion, appellant argues that (1) in the absence of a showing of changed circumstances, the court should have based its order on the shared custody agreement of the parties; and (2) the court’s order contravened the policy against destroying the relationship between parent and child. Appellee counters by arguing that (1) the prior, shared custody agreement no longer represents Bo’s best interests because now he has started school, and (2) the lack of cooperation between the parties has destroyed the beneficial effects otherwise obtainable by a shared custody arrangement.

We reject appellant’s argument that the trial court abused its discretion when it declined to follow the shared custody arrangement to which the parties had earlier agreed. The trial court was not bound by the parties’ agreement with respect to Bo’s custody. A contract pertaining to the custody of a minor child is always subject to being set aside in the best interest of the child. Walker v. Walker, 308 Pa.Super. 280, 283, 454 A.2d 130, 132 (1982). See: Commonwealth ex rel. Children’s Aid Society v. Gard, 362 Pa. 85, 66 A.2d 300 (1949). See also: Supko v. Monoskey, 314 Pa.Super. 469, 461 A.2d 253 (1983). To set aside a private agreement regarding the custody of a child, it is not necessary that a court find a change of circumstances. Such an agreement, although entitled to be considered, must always give way where the best interests of the child suggest an alternate custody arrangement.

It is correct, as appellant argues, that the policy of the courts in this Commonwealth is to preserve and not interfere with the relationship between parent and child. See: Commonwealth ex. rel Newcomer v. King, 301 Pa.Super. 239, 447 A.2d 630 (1982); Pamela J.K. v. Roger D.J., 277 Pa.Super. 579, 419 A.2d 1301 (1980). This policy, however, does not dictate that physical custody of the child be divided equally between parents. Other considerations are also important. In the instant case, the trial court found that both parents were fit to care for the child, that the living accommodations were adequate in both situations, and that the parties were both involved in new marriages which would be beneficial to the child. It found further, however, that the previous arrangement of transferring custody from one parent to the other on a weekly basis had become unworkable because of the hostility and lack of cooperation between the parties. The court also found that the inability of the parties to cooperate in the shared custody arrangement had become detrimental to the child. As being illustrative of this fact, the court cited an incident in which the local police had been called to effect a custody exchange between the parties. Two psychologists testified that it would be in Bo’s best interest during the school year to be in the primary custody of a single parent so that he would have the stability and predictability of a “home base” from which he could leave each morning and return each afternoon. Thus, there was evidence which fully supported the trial court’s determination that shared custody on an equal, rotating basis would not be in the best interest of the child.

In deciding that the appellee-mother should have primary custody, the trial court determined that although Bo had developed a close relationship with both parents, it had been his mother who had been the primary, nurturing parent and who had been most available to meet Bo’s immediate physical needs. His father, on the other hand, because of more frequent absences from the home, had been less available to provide day to day care. Although both parents were fit custodians, the trial court concluded that Bo’s mother, who was unemployed, would better be able to provide the daily, hands-on care which the child required. The trial court’s consideration of the best interests of the child was careful and thorough, and we are unable to find therein any abuse of discretion that would warrant an appellate court’s interference.

Appellant also objects to the fact that appellee was represented in these proceedings by an attorney who is a court-appointed, pre-hearing custody officer and who, in other cases, has acted in this quasi-judicial role. Although conceding that there was no actual impropriety, appellant suggests that counsel’s representation of appellee created an appearance of impropriety.

This is a troubling issue. Although in some counties of Pennsylvania the practice of family law by a domestic relations hearing officer is prohibited by local rule, this practice is not uniformly followed in all counties. In York County, we are advised, the practice is to allow pre-hearing custody. officers to continue to handle custody actions.

The Civil Procedural Rules Committee has submitted to the Supreme Court of Pennsylvania a proposed rule which would prohibit a hearing officer who is. a lawyer from practicing family law. Specifically, proposed R.C.P. 1910.-11(a)(2) would provide:

(2) A hearing officer who is a lawyer shall not practice family law. For the purpose of this rule, family law includes the following matters: support; custody, partial custody or visitation of minor children; divorce or annulment of marriage; and protection from abuse.

17 Pa.Bull. 38, p. 3737 (September 19, 1987). This proposed rule, however, was not published until after hearings in this matter had been completed, and the Supreme Court has not, as of this writing, adopted the same. Thus, it cannot be said that appellee’s counsel violated an established rule of court or practice which is uniformly followed in this Commonwealth.

The order in the instant case was not based upon or affected by the pre-hearing conference held before another court appointed officer. Instead, it was based upon evidence produced during four and one-half days of hearings before the trial court. The trial judge, moreover, has stated that his decision was made independently of any recommendation made by the pre-hearing officer. We conclude, therefore, that there is no basis in this case for requiring new hearings before the same or a different trial judge.

ORDER AFFIRMED.

      . A psychologist called by appellant recommended a continuation of shared custody.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    550 A.2d 1345
    COMMONWEALTH of Pennsylvania v. Norman WHALEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 11, 1988.
    Filed Dec. 6, 1988.
    George H. Newman, Philadelphia, for appellant.
    Donna G. Zueker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before TAMILIA, MONTGOMERY and HOFFMAN, JJ.
   TAMILIA, Judge:

This appeal is from a denial of a PCHA petition and involves PCHA counsel’s motion to withdraw on the grounds that the appeal is frivolous. Following an initial Order from the panel granting counsel’s petition to withdraw, but remanding for appointment of new counsel, we now affirm that portion of our September 6, 1988 Order which granted counsel’s petition to withdraw but reverse that portion remanding for appointment of new counsel to proceed with appellant’s appeal on his post-conviction relief action.

The area of collateral appeals in criminal actions has recently undergone substantial review by the United States Supreme Court, the Pennsylvania Supreme Court and our own Court.

In Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), the United States Supreme Court reversed the judgment of the Pennsylvania Superior Court which had required an Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), type procedure for withdrawal of counsel and appointment of new counsel. The Supreme Court held: 1) the Superior Court improperly relied on the United States Constitution to extend Anders procedures to post-conviction proceedings; 2) the state law providing indigent prisoners the right to assistance of counsel in collateral post-conviction proceedings did not require the full panoply of protection guaranteed to a first appeal as of right; and 3) the accused is entitled under state law only to an independent review of the record by competent counsel and a concurrence by the court that the appeal is frivolous. This holding, along with the holdings in Commonwealth v. Turner, infra, were recently affirmed by our own Court on remand from the United States Supreme Court in Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988).

Following the United States Supreme Court, our Supreme Court, in Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), an Opinion by Justice Flaherty, recently stated that Anders, supra, and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981) do not apply to collateral appeals. Once counsel determines the appeal is frivolous and when the PCHA/PCRA court concurs, the petition may proceed pro se or by privately retained counsel or not at all.

Here, the matter considered on direct appeal was the failure of the Commonwealth to produce bed sheets which were evidence in the rape charge of which appellant was convicted. The Superior Court, on direct appeal in an Opinion by then President Judge William F. Cercone, affirmed the judgment of sentence finding sufficient evidence to support the non-jury guilty verdict and determining appellant was not denied any due process rights. Commonwealth v. Whaley, 290 Pa.Super. 97, 434 A.2d 147 (1981), allocatur denied. The PCHA claim again involves the unavailability of the bed sheets, and after a full evidentiary hearing, the PCHA court determined the proceeding was without merit as having been finally adjudicated pursuant to 42 Pa.C.S.A. § 9544(a)(2) When an issue is finally litigated or waived. Present counsel (not trial counsel or PCHA counsel) agrees and petitions to withdraw.

The issue appellant now seeks to present to this Court has been finally litigated, and in Commonwealth v. Bobby Joe Lawson, 519 Pa. 504, 549 A.2d 107 (1988), the Pennsylvania Supreme Court recently closed the door to multiple post-conviction relief appeals. “A repetitive or serial petition may be entertained only for the purpose of avoiding a demonstrated miscarriage of justice, which no civilized society can tolerate.” Id., 519 Pa. at 513-514, 549 A.2d 107. While this case is not one of multiple PCHA appeals, the same rationale applies to pursuance of PCHA appeals when the identical issue has been resolved on direct appeal.

For the above stated reasons, in accordance with Finley, Turner and Lawson, counsels, George Newman, petition to withdraw is granted and appellant must proceed pro se, with private counsel or not at all.

      . Were we to direct the appointment of new counsel, we would, in effect, be finding current counsel to somehow have been ineffective. The new provisions enacted by the General Assembly for the Post Conviction Relief Act, Act of April 13, 1988, 42 Pa.C.S.A. i 9543(a)(2)(ii) provide that a petitioner seeking relief on a claim of ineffective assistance of counsel must plead and prove that counsel's stewardship "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” Id. Such is not the case here.


author: MELINSON, Judge:

text:
    550 A.2d 1346
    Josephine J. ROACH and Thomas Roach, her husband, Appellants, v. PORT AUTHORITY OF ALLEGHENY COUNTY and State Farm Insurance Companies.
    Superior Court of Pennsylvania.
    Argued June 30,
    Filed Nov. 29, 1988.

      John M. Silvestri, Pittsburgh, for appellants.
    Frank M. Gianola, Pittsburgh, for appellees.
    Before BROSKY, JOHNSON and MELINSON, JJ.
   MELINSON, Judge:

This is an appeal from an Order of the Court of Common Pleas of Allegheny County granting, without Leave to Appellant to Amend, the Appellee’s (State Farm Insurance Companies’) preliminary objection in the nature of a demurrer.

Appellants, Josephine J. Roach and Thomas Roach, her husband, filed a two-count Complaint which named the Port Authority of Allegheny County (hereinafter “PAT”) and State Farm Insurance Companies (hereinafter “State Farm”) as Defendants.

To determine whether a preliminary objection in the nature of a demurrer was properly granted, this Court must accept as true all properly pleaded material facts, and reasonable inferences therefrom, set forth by the opposing party. Stein v. Richardson, 302 Pa.Super. 124, 448 A.2d 558 (1982); Sun Oil Co. Of Pennsylvania v. Bellone, 292 Pa.Super. 341, 437 A.2d 415 (1981), citing Trost v. Clover, 234 Pa.Super. 255, 338 A.2d 630 (1975). We must confine our analysis to the complaint and decide whether there have been pleaded sufficient facts to permit recovery if said facts are ultimately proven. Gordon v. Lancaster Osteopathic Hospital Association, Inc., 340 Pa.Super. 253, 489 A.2d 1364 (1985).

In addition, leave to amend a complaint lies within the discretion of the trial court unless the amended pleading has been filed within ten days of the filing of the preliminary objections. Pa.R.Civ.P. 1028(c), 42 Pa.Cons.Stat.Ann. Division 85 of Amalgamated Transit Union v. Port Authority of Allegheny County, 71 Pa.Cmwlth. 600, 455 A.2d 1265 (1983). Also, the right to amend the pleadings should not be withheld where some reasonable possibility exists that the amendment can be accomplished successfully. Post v. Mendel, 510 Pa. 213, 507 A.2d 351 (1986); Otto v. American Mutual Insurance Co., 482 Pa. 202, 205, 393 A.2d 450, 451 (1978); Division 85 of Amalgamated Transit Union, 455 A.2d at 1267. However, “the decision to grant or deny leave to amend is within the sound discretion of the trial court, and will not be reversed absent a clear abuse of discretion.” Feingold v. Hill, 360 Pa.Super. 539, 550, 521 A.2d 33, 39 (1987), citing Junk v. East End Fire Department, 262 Pa.Super. 473, 490, 396 A.2d 1269, 1277 (1978). Leave to amend will be withheld where the initial pleadings reveal that the prima facie elements of the claim cannot be established and that the complaint’s defects are so substantial that amendment is not likely to cure them. Feingold, 360 Pa.Super. at 550, 521 A.2d at 39, citing Spain v. Vicente, 315 Pa.Super. 135, 142-43, 461 A.2d 833, 837 (1983).

The pleadings reveal the following facts: On March 18, 1987, Josephine Roach (hereinafter “Mrs. Roach”), was a passenger on a bus owned and operated by PAT. While she was riding on the bus, Roach was injured as a result of a fight which took place between two other PAT bus passengers. The Roaches alleged in the first count that PAT was negligent in allowing the two people who were fighting to enter the bus, and in not preventing the fight which caused Mrs. Roach’s injuries. In this appeal, we are not asked to determine the rights of the Roaches against PAT with respect to the liability of PAT for their alleged negligence; therefore, we shall not address this issue.

In the second count, the Roaches alleged that State Farm was unreasonable in denying an insurance claim for reimbursement of medical bills incurred by the Roaches due to the injuries sustained by Mrs. Roach. Mrs. Roach was insured under an automobile insurance policy issued by State Farm. As a result of her injuries, Mrs. Roach filed a claim with State Farm under her policy. State Farm denied her claim contending that the injuries sustained by her did not arise out of “the maintenance or use of a motor vehicle” as is required for payment of first party benefits under both the insurance policy issued to Mr. Roach and the Pennsylvania Motor Vehicle Financial Responsibility Law.

After denial of Mrs. Roach’s claim, the Roaches filed suit in the court below naming both PAT and State Farm as defendants. Subsequently, State Farm filed preliminary objections in the nature of a demurrer and misjoinder of a cause of action. State Farm admitted all the properly pleaded facts in filing its preliminary objection. However, State Farm denied that the injuries sustained by Mrs. Roach were a result of the maintenance or use of a motor vehicle within the meaning of the Pennsylvania Motor Vehicle Financial Responsibility Law. Further, State Farm contends that it rightfully denied Mrs. Roach’s claim; therefore, the Roaches failed to state a cause of action against State Farm upon which relief may be granted.

The learned trial judge, the Honorable Bernard L. McGinley, granted State Farm’s preliminary objection in the nature of a demurrer without leave to Mrs. Roach to amend. It is from that Order that Appellants filed this timely appeal.

This case presents us with the issue of whether a public transportation passenger who is injured as the result of a fight between two other passengers, sustained injuries arising out of the maintenance and use of a motor vehicle. This court recently examined the definition of “maintenance and use of a motor vehicle,” as used in the Pennsylvania Motor Vehicle Financial Responsibility Law, in the case of Alvarino v. Allstate Insurance Company, 370 Pa.Super. 563, 537 A.2d 18 (1988). There, the court held that injuries caused as a result of a dog’s biting a passenger in a van did not arise from the use of the van and, therefore, did not have to be within the coverage of the motor vehicle policy covering the van pursuant to the Pennsylvania Motor Vehicle Financial Responsibility Law. The court further stated that “the mere fact that a motor vehicle is the place where injuries are sustained is insufficient to establish a causal connection between the use of the vehicle and the injuries so as to require payment of first party benefits.” Alvarino, 370 Pa.Superior Ct. at 568, 537 A.2d at 21. In the instant case, Roach was injured as a result of a fight between two other bus passengers. The bus was merely the place in which the injuries occurred; therefore, the trial court properly sustained State Farm's preliminary objection.

In order to interpret a statute of this Commonwealth we must observe the rules set forth in Chapter 19 of Title 1 Pa.Cons.Stat.Ann. and construe the words of the statute according to their plain meaning, Commonwealth v. Sojourner, 513 Pa. 36, 518 A.2d 1145 (1986); Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982). Furthermore, the object of all interpretation of statutes is to ascertain and effectuate the legislative intent. 1 Pa.Cons.Stat.Ann. § 1921. When the words are not explicit such intent may be determined by considering, among other matters, “the former law, if any, including other statutes upon the same or similar subjects.” Pa.Cons.Stat.Ann. tit. 1, § 1921(c)(5).

The General Assembly of this Commonwealth enacted the Pennsylvania Motor Vehicle Financial Responsibility Law on February 12, 1984, repealing the Pennsylvania No-Fault Motor Vehicle Insurance Act (hereinafter “No-Fault Act”). Under the No-Fault Act, the victim of an injury-producing accident which occurred in this Commonwealth was entitled to receive basic loss benefits. “It is clear that the No-Fault Act was never intended to be a general liability insurance which would cover all injuries, no matter how remotely connected with the use or maintenance of a motor vehicle, but [was] intended to cover most motor vehicle accidents.” Glad v. State Farm Mutual Insurance Company, 336 Pa.Super. 196, 200, 485 A.2d 499, 501 (1984), quoting Camacho v. Nationwide Insurance Co., 314 Pa. Super. 21, at 23, 460 A.2d 353, at 354 (1983).

The No-Fault Act defined a “victim” as “an individual who suffers injury arising out of the maintenance or use of a motor vehicle ...” Under the Act “maintenance or use of a motor vehicle” meant “maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into, or alighting from it.” Pa.Cons.Stat.Ann. tit. 40, § 1009.103. Repealed. 1984, Feb. 12, P.L. 26, No. 11, Section 8(a), effective Oct. 1, 1984. See also, Schweitzer v. Aetna Life and Casualty Co., 306 Pa.Super. 300, 452 A.2d 735 (1982).

Furthermore, we have consistently distinguished between those injuries that the legislature intended to be compensated exclusively by No-Fault, and those that were to be left to other remedies, by requiring a causal connection between the injury and the “maintenance and use of a motor vehicle.” Cerrato v. Holy Redeemer Hospital, 342 Pa.Super. 551, 555, 493 A.2d 728, 730 (1985); Crawford v. Allstate Insurance Co., 305 Pa.Super. 167, 451 A.2d 474 (1982); compare, Glad, 336 Pa.Super. 196, 485 A.2d 499 (1984) (intentional act which has no connection with a motor vehicle accident other than that the injured party was operating a motor vehicle prior to his death held insufficient) with Spisak v. Nationwide Mutual Insurance 329 Pa.Super. 483, 478 A.2d 891 (1984) (motorist in parked car who died of carbon monoxide poisoning allowed to recover under No-Fault).

In the case of Erie Insurance Exchange v. Eisenhuth, 305 Pa.Super. 571, 451 A.2d 1024 (1982), this court held that No-Fault Insurance did not cover a passenger of a vehicle who was shot by a police officer in pursuit of that vehicle. There the court reasoned that “the cause of [the] injuries was a gunshot, not his being a passenger in [the] automobile.” Id. 305 Pa.Super. at 574, 451 A.2d at 1025. This is quite similar factually to the case at bar. Here, Mrs. Roach was injured as a result of two individuals engaging one another in a fight while riding on public transportation. The fact that Mrs. Roach was on a bus was incidental to her injuries. Her injuries were caused by two men fighting, not the maintenance or use of a motor vehicle. The causal connection need not rise to the level of proximate causation; however, some connection must exist between the motor vehicle and the victim’s injuries. This connection must be more than mere happenstance. See Schweitzer, 306 Pa.Super. 300, 303, 452 A.2d 735, 737 (1982). We, therefore, fail to find the requisite causal link between the injury and the use of a motor vehicle; hence, we find no requirement of coverage under the Pennsylvania Motor Vehicle Financial Responsibility Law.

The Roaches ask us to expand the parameters of the “maintenance and use” concept of the Pennsylvania Motor Vehicle Financial Responsibility Law by including within that concept the internal operating procedures of a public transit authority. The appellants ask that we include in the ambit of the “maintenance and use” concept “the procedures for maintaining the safety of passengers, procedures for maintaining order or discipline on a bus, and procedures for quelling disturbances which occur on a bus.” We believe that this was not the intent of the legislature.

The purpose of the No-Fault Act was “to establish at reasonable cost ..., a statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims____” Cerrato, 342 Pa.Super. 551, at 554, 493 A.2d 728, at 730 (1985) (emphasis in original), quoting Pa.Stat. Ann. tit. 40, § 1009.102(b). At a time which some would call an insurance crisis in the Commonwealth, the Legislature enacted the Pennsylvania Motor Vehicle Financial Responsibility Law. It was enacted as a means of insurance reform and as an attempt to decrease or at least stabilize individual automobile insurance rates across the Commonwealth, Vol. 1 House Journal No. 10, p 166 (1984) (statement of Rep. DeVerter). Additionally, it was intended to insure that the approximately 1.2 million non-insured drivers in the Commonwealth would be provided with insurance. Vol. 1 Senate Journal No. 4, p 1583 (1984) (statements by-Sen. Rhoades). If we were to expand the applicability of the “maintenance and use” concept, as the appellants suggest, we believe the result would be both inconsistent with and contrary to the intended goals of the Legislature. The implications of such a pronouncement would have a far-reaching and profound effect upon this Commonwealth.

The mere fact that the bus is the site where the injuries were sustained does not establish the requisite causal connection between the “maintenance and use of a motor vehicle” and the injuries. Accordingly, we hold that a bus passenger who is injured as a result of a fight between two other passengers is not entitled to insurance coverage under the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law.

In the case at bar, the trial judge granted State Farm’s preliminary objection in the nature of a demurrer stating there was “no allegation that the injuries were caused by the use or maintenance of the vehicle under the facts as alleged[.] Mrs. Roach is not within the parameters of protection set forth in the legislation and the contract of insurance.” (Trial Court Opinion at 2). Thus, we find that, accepting as true the facts properly pleaded by Mr. and Mrs. Roach, there were insufficient facts, even if ultimately proven, to permit recovery. Accordingly, the trial court properly granted State Farm’s preliminary objection in the nature of a demurrer.

Since the trial court properly sustained the preliminary objection, and the initial pleadings reveal that the defects of the complaint are so substantial that they are not likely to be cured by amendment, and that the prima facie elements of the claim cannot be established, we find that the leave to amend was properly withheld.

The Order of the trial court is affirmed.

      . The State Farm Policy provides in pertinent part:
      SECTION II — FIRST PARTY COVERAGES
      MEDICAL PAYMENTS — COVERAGE C
      What We Pay
      We will pay for bodily injury to an insured arising out of the
      maintenance or use of a motor vehicle____
      (Appellant’s Insurance Policy at 8-9.) (emphasis added)

      . Pa.Cons.Stat.Ann. tit. 75, §§ 1701-1798 (Purdon 1987 Supp.) Section 1711 provides in pertinent part:
      Section 1711. Required Benefits
      An insurer issuing or delivering liability insurance policies covering any motor vehicle ... shall include coverage providing a medical benefit ... with respect to injury arising out of the maintenance or use of a motor vehicle____ (emphasis added)

      . Pa.Cons.Stat.Ann. Section 1903(a) provides in pertinent part Section 1903. Words and phrases
      (a) Words and phrases shall be construed according to rules of grammar and according to their common and approved usage; but ... such others as have acquired a peculiar and appropriate meaning ... shall be construed according to such peculiar and appropriate meaning or definition.

      . Pa.Cons.Stat.Ann. tit 40 § 1009.101 et seq. Repealed. 1984, Feb. 12, P.L. 26, No. 11, Section 8(a), effective Oct. 1, 1984.

      . Id. at Section 1009.201(a)


author: BROSKY, Judge:

text:
    551 A.2d 219
    Catherine E. Walsh SIMEONE, Appellant, v. Frederick A. SIMEONE.
    Superior Court of Pennsylvania.
    Argued Sept. 1, 1988.
    Filed Oct. 26, 1988.
    Reargument Denied Dec. 22, 1988.

      Leonard Dubin, Philadelphia, for appellant.
    Robert I. Whitelaw, Philadelphia, for appellee.
    Before CAVANAUGH, BROSKY and MONTEMURO, JJ.
   BROSKY, Judge:

This is an appeal from the Order of the Court of Common Pleas of Philadelphia County denying appellant’s Exceptions to the Recommendation by the Master that the 1975 antenuptial agreement is valid and enforceable, and is a bar to appellant’s receipt of alimony pendente lite.

Appellant presents the following issues for our review: (1) whether the antenuptial agreement is rendered void when appellant lacked an awareness of the statutory rights she relinquished upon its execution; (2) whether the ante-nuptial agreement is void when appellant lacked independent counsel and alleges that the agreement was signed under duress; (3) whether there was an adequate financial disclosure to ensure the validity of the antenuptial agreement; and (4) whether the antenuptial agreement was superceded by the parties’ handwritten separation agreement dated February 1, 1982.

The trial court answered these questions in the negative. We now affirm the trial court’s decision.

Catherine E. Walsh Simeone (“Appellant”) and Dr. Frederick A. Simeone (“Appellee”) were married on October 4, 1975. The day before they were to marry, appellant signed an antenuptial agreement prepared by appellee’s attorney, limiting appellant’s alimony in the event of divorce to $25,-000.00, payable in the amount of $200.00 per week. The parties separated in February of 1982. Subsequent to their separation, the parties executed a handwritten separation agreement, providing temporary support for appellant and the parties’ only child, Christina, now age eleven. In July of 1984, appellee reduced his payments to appellant to cover child support expenses only, and appellant filed a Complaint for support.

A Master’s hearing was held, and the Master found that the separation agreement did not supercede the provisions of the antenuptial agreement with respect to appellant’s right to alimony pendente lite. The Master fixed appellee’s child support obligations at $1,627.00 per month. The Master’s Report was filed on April 1, 1985, and later became an Order of the Court. No Exceptions were filed to the Master’s Report. On April 3, 1985, appellant filed a Petition seeking alimony pendente lite. A Master was appointed, and a Master’s hearing was held to determine the issues of the validity of the antenuptial agreement and appellant’s right to alimony pendente lite based upon her potential income and expenses. The Master found that the parties’ antenuptial agreement was valid and binding, and that appellant was not entitled to alimony pendente lite. Appellant filed Exceptions, which were dismissed by the trial court. Appellant has appealed.

Appellant contends, first, that the antenuptial agreement is void because she was not aware of the statutory rights which she relinquished when she executed it. She claims that the attorney who drafted the agreement represented only appellee, and never discussed or explained the contents of the agreement with her before she signed It.

In In Re Estate of Geyer, 516 Pa. 492, 533 A.2d 423 (1987) the Pennsylvania Supreme Court dealt with the issue of the enforceability of an antenuptial agreement. There, the court began by reiterating the already-established law in this area. In doing so, the court quoted extensively from In re Hillegass Estate, 481 Pa. 144, 244 A.2d 672 (1968), which was the leading decision in this Commonwealth concerning the interpretation of antenuptial agreements.

The pertinent language quoted by the Geyer court is as follows:

Parties to an antenuptial Agreement providing for the disposition of their respective estates do not deal at arm’s length, but stand in a relation of mutual confidence and trust that calls for the highest degree of good faith and a reasonable provision for the surviving spouse, or in the absence of such a provision a full and fair disclosure of all pertinent facts and circumstances.

Id., 431 Pa. at 149, 244 A.2d at 675.

After announcing these standards the Court set forth the following principles.

(1) An Antenuptial Agreement is presumptively valid and binding upon the parties thereto.
(2) The person seeking to nullify or avoid or circumvent the Agreement has the burden of proving the invalidity of the Agreement by clear and convincing evidence that the deceased spouse at the time of the Agreement made neither (a) a reasonable provision for the intend ed spouse, nor (b) a full and fair disclosure of his (or her) worth, (emphasis in original).

Geyer, supra, 516 Pa. at 501, 533 A.2d at 427. The court then went on to explain the burden of proof as follows:

The burden in the case was on Mrs. Geyer to demonstrate by clear and convincing evidence that the agreement did not make reasonable provision for her, and that it was entered into without full and fair disclosure by the decedent.

Id., 516 Pa. at 502, 533 A.2d at 427.

Had the Supreme Court stopped there, the holding would be clear: antenuptial agreements are valid as long as there is either a reasonable provision for the intended spouse or full and fair disclosure of assets. Confusion arises, however, by the court’s use of the following language:

That public policy, a token of the solemnity of the matrimonial union, requires no less than a condition that any agreement surrendering the right of a spouse to elect against the will must be made under full knowledge of that right.
We therefore think it is fair and reasonable, as well as sound judicial policy, to require that any agreement which seeks to change the duly enacted public policy of this Commonwealth must be based on nothing less than full and fair disclosure. Such disclosure must include both the general financial pictures of the parties involved, and evidence that the parties are aware of the statutory rights which they are relinquishing.

Id., 516 Pa. at 506, 533 A.2d at 429-30.

Not only does this appear to add a new requirement on to the concept of “full and fair disclosure” — that being the full and fair disclosure of statutory rights — but it would also appear to require full and fair disclosure regardless of the reasonableness of the provision for the intended spouse, a holding which would run contrary to the language initially used by the court when quoting Hillegass, supra.

To try to resolve this confusion, we turn first to the Dissenting Opinion by Chief Justice Nix. There, he states:

The Opinion Announcing the Judgment of the Court would make full and fair disclosure a requirement in every antenuptial agreement. This new disclosure would require not only a general statement of the financial resources of the parties, but also would require that the complaining party must have been made “aware of the statutory rights which [he or she is] relinquishing.” Slip op. at 429.

Geyer, supra, 516 Pa. at 430, 533 A.2d at 430. Because we can find no language to the contrary, we must agree that the Supreme Court has, indeed, expanded the concept of full and fair disclosure to encompass, not only disclosure of assets, but also, disclosure of statutory rights.

The dissent by the Chief Justice, however, goes on to state that the majority is making full and fair disclosure a requirement even in the presence of a reasonable provision. Chief Justice Nix states it thusly:

Under present law, full and fair disclosure is not required until it is first determined by a reviewing court that the provision for the surviving spouse under the antenuptial agreement was not adequate.
Today the Opinion Announcing the Judgment of the Court would place the burden upon the proponent of the agreement to establish its validity by demonstrating that the disclosure requirement has been met, regardless of the adequacy of the provision being made of the surviving spouse.

Id., 516 Pa. at 508, 533 A.2d at 430-31. We however, disagree. As noted earlier, the majority in Geyer first set forth the rules announced in Hillegass as still being controlling, and later spoke of full disclosure. Thus, we must reconcile these seemingly divergent stands.

As pointed out by appellee, it was only after the Court found that there had not been a reasonable provision made for the dependent spouse, that they had to address the issue of disclosure.

We interpret Geyer this way based upon additional language used by the Supreme Court which states:

Antenuptial agreements which are knowingly and intentionally executed should not be abrogated. Unreasonable conditions qr cqnsequenees may prove that an agreement was not knowingly entered into; but absent that lack of knowledge the surviving party should be required to live with the bargain. Nonetheless, in order to enforce such an agreement a court should be convinced that the agreement in question was in fact made knowingly and intentionally.

Id., 516 Pa. at 429, 533 A.2d at 429. As evidenced by this passage, it is only where unreasonable conditions exist that the lack of knowledge becomes important. Further, where the court talks about “enforeingfing] such an agreement” (emphasis added), taken in context, we interpret this to mean an agreement in which the provisions for the spouse were unreasonable. Additionally, when the Supreme Court spoke of “agreements] which seek to change duly enacted public policy” supra at 221, we believe that this is a reference to agreements in which unreasonable provisions are given to a spouse, thereby contravening the public policy of fairness.

Accordingly, our interpretation of Geyer is as follows: (1) the concept of “full and fair disclosure” was expanded to include the disclosure of statutory rights; ■ and (2) the Hillegass holding that antenuptial agreements are valid in the presence of either full and fair disclosure or a reasonable provision for the intended spouse remains unchanged. Thus, we will analyze appellant’s claims in light of this interpretation.

We will begin our analysis by looking first at the reasonableness of the provisions made for appellant in the antenuptial agreement. In Hillegass, supra, the Pennsylvania Supreme Court set forth the standard to be used in evaluating reasonableness.

In evaluating the reasonableness of the provision for the survivor, such reasonableness must be determined as of the time of the Agreement and not by hindsight. Reasonableness will depend upon the totality of all the facts and circumstance at the time of the Agreement, including (a) the financial worth of the intended husband; (b) the financial status of the intended wife; (c) the age of the parties; (d) the number of children each has; (e) the intelligence of the parties; (f) whether the survivor aided in the accumulation of the wealth of the deceased spouse; and (g) the standard of living which the survivor had before marriage and could reasonably expect to have during marriage.

Id. 431 Pa. at 150-151, 244 A.2d at 675-676 (emphasis in original). In Geyer, supra, the court held, “(I)n reviewing the issue we are guided by the principle that the adequacy of the agreement’s provisions is to be measured by the terms of the agreement itself, not by events which occurred subsequent to it.” Id., 516 Pa. at 503, 533 A.2d at 428. Furthermore, reasonableness will depend upon the totality of all the facts and circumstances at the time of the agreement, and not by hindsight. See In re Kester’s Estate, 486 Pa. 349, 405 A.2d 1244 (1979).

It is true that this concept of reasonableness is viewed somewhat differently in other states. In Posner v. Posner, 233 So.2d 381 (Supreme Court of Florida, 1970), the court upheld an antenuptial agreement; however, the court went on to state that, with regard to the provision limiting alimony, it would permit the alimony to be changed upon a showing of changed circumstances. In McHugh v. McHugh, 181 Conn. 482, 436 A.2d 8 (1980), the court stated that an antenuptial contract may be invalid where the parties’ circumstances changed greatly between the time of the execution of the agreement and the parties’ separation. Likewise, in Newman v. Newman, 653 P.2d 728 (1982), the Supreme Court of Colorado, although acknowledging that the parties to an antenuptial agreement are, indeed, free to enter into a contract, also recognized that health and employability of the spouses may change during marriage, so as to render unconscionable an antenuptial agreement. A more stringent stand was taken in In Re Marriage of Winegard, 278 N.W.2d 505 (1979) when the Supreme Court of Iowa held that parties cannot limit alimony in an ante-nuptial agreement.

Such is not the case in Pennsylvania. In Laub v. Laub, 351 Pa.Super. 110, 505 A.2d 290 (1986), this court upheld an antenuptial agreement in which the parties relinquished their rights to alimony and support. In Laub, we also held that under Section 103 of the Divorce Code of 1980, agreements entered into prior to the effective date of the act, would not be affected by the act nor any modification or amendment thereto. This is important as appellant claims that she was not informed of her statutory rights; however, it was not until the Divorce Act of 1980 that many of her rights arose.

The trial court, in its opinion, analyzed this case in light of the Hillegass factors for reasonableness as follows:

Dr. Simeone’s assets set forth in the agreement as itemized on schedule A attached thereto, are valued at approximately $300,000. Included in the assets is the automobile collection of 17 cars with an approximate value of $200,000, and the balance of the assets were $83,550 plus the automobile literature valued on the schedule at approximately $20,000-50,000. The defendant also inserted his approximate net income for 1974 at $84,000 and 1975 of $90,000.
It is noteworthy that defendant testified that at the time of execution he owned only 4 of the 17 automobiles listed on schedule A. The other automobiles were owned by his mother, who inherited the cars from her husband, who died in 1971 (1/13/86, NT 10-18). This fact was known by plaintiff.
Furthermore, at the time of execution of the agreement, plaintiff was a 23-year-old registered nurse, while defendant was a 39-year-old neurosurgeon. Paragraph 2 provided for the plaintiff to inherit $100,000 of defendant’s assets in the event of his death if the parties were living together as husband and wife. Even assuming that defendant owned all of the automobiles, plaintiff would receive at least Vs of defendant’s estate, which is equivalent to her statutory share subject to the provisions of the PEF Code upon election. See 20 Pa.CS § 2203. If the 13 cars are excluded from the computation, plaintiff’s share would exceed 50% of defendant’s estate. Accordingly, the provision for plaintiff upon defendant’s death is reasonable.
The support provision of the agreement in the event of divorce or separation give the plaintiff an allowance of $200 weekly, not to exceed $25,000. The Master found, as previously indicated, that plaintiff was a 23-year-old RN who was not working at the time of execution of the agreement due to injuries sustained in a motor vehicle accident. The defendant was a 39-year-old neurosurgeon who earned approximately $84,000 in 1974 and $90,-000 in 1975. Neither party had any children from previous marriages. The record discloses that plaintiff prior to marriage worked as an RN and supported herself. Accordingly, upon separation or divorce the plaintiff would receive $200 weekly for 125 weeks, placing her in a better position that she would have been prior to the parties’ marriage. See Emery Estate [362 Pa. 142], 66 A.2d 262, 265 (Pa.1949).
In 1975, when the agreement was executed there was no post-divorce alimony in Pennsylvania. Despite defendant’s significant earnings in later years, such earnings are not relevant to the determination of reasonableness of the support provision at the time of execution of the agreement. See Geyer Estate, supra [533 A.2d], at 428; Hillegass Estate, supra [244 A.2d] at 674. 1975 is the relevant time period to determine reasonableness. The Master found, and the court concurs, that the provisions for plaintiff in the event of death and divorce are reasonable within the guidelines of the appellate decisions interpreting prenuptial agreements. Furthermore, plaintiff has not presented clear and convincing evidence demonstrating that the provisions for her were not reasonable.

Finding no error in the trial court's analysis, we agree that the provisions for appellant were reasonable. Having found the antenuptial agreement to have made reasonable provision for appellant, we need not consider the issue regarding her statutory rights. (See Discussion of Geyer, supra.)

We turn now to appellant’s second contention regarding the lack of counsel. Our resolution of this issue ties in with our previous discussion regarding appellant’s statutory rights. We will, however, go further. This court recently addressed a similar issue in Nigro v. Nigro, 371 Pa.Super. 625, 538 A.2d 910 (1988). The court found that when an antenuptial agreement makes reasonable provisions for a spouse, or contains full and fair disclosure, the court can find that a spouse who later contests the agreement “knowingly and voluntarily” waived her right to independent counsel, particularly when that spouse actively participated in formulating the provisions of the agreement. This implies that there is a right to independent counsel which is not absolute, and can be waived.

Here, the Master, on the basis of credibility, specifically found, and the trial court agreed, that appellant had full knowledge of the fact that an agreement was being drawn up, had participated in conversations regarding the agreement, and had participated in the process of preparing the agreement. Appellee testified that he and appellant discussed the particulars of this antenuptial agreement, and that appellee had his attorney insert several changes in the agreement that were more favorable to appellant, at her request. Having known about the agreement for several months prior to the parties’ wedding, appellant could have consulted with independent counsel prior to signing the agreement. Thus, even if appellant were not aware of the actual provisions of the agreement, having known that an agreement was a probability, it became a matter for appellant to protect her interests. It is true that in Nigro, id., it was specifically found that the appellant-wife had knowingly and voluntarily waived her right to counsel by actively participating in the formulation of the agreement. While no such definitive finding may have been made here, we are nonetheless faced with a situation where the credible evidence shows that appellant did have an opportunity to seek counsel should she have so chosen. Therefore, unless appellant can prove either that the agreement did not reasonably provide for her and that appellee did not make a full and fair disclosure of his worth to her, the agreement will not be invalidated merely because appellant was not represented by independent counsel. Since appellant has not proved that the agreement was unreasonable appellant’s lack of independent counsel is not dispositive.

Appellant also contends that the antenuptial agreement was signed under duress, and should therefore be void. She submits that duress can void an agreement even in the absence of threats of actual bodily harm, where a party is not “free to consult with counsel.” Carrier v. William Penn Broadcasting Corp., 426 Pa. 427, 431, 233 A.2d 519, 521 (1967), quoting, Smith v. Lenchner, 204 Pa.Super. 500, 504, 205 A.2d 626, 628 (1964). Appellant also claims that she was presented with the agreement for the first time on the eve of her wedding, and she did not understand her rights, and only signed the agreement because she believed that her wedding would not go forward unless she did so. She asserts that these facts constitute duress.

Several witnesses, however, testified that there were discussions of the antenuptial agreement between the parties long before the eve of the wedding, and the Master did not find appellant’s claims with regard to this matter to be credible. Appellant’s mother also testified that when appellant returned to her mother’s home on the evening prior to the wedding, she made no mention of the antenuptial agreement. While we admit that appellee’s timing in this regard may leave something to be desired, we believe that the Master did not abuse his discretion in not finding that the agreement was executed under duress.

Appellant asserts next that the antenuptial agreement is void because it was predicated upon insufficient financial disclosures. She claims that contrary to appellee’s representations that his assets were valued at $300,000.00, mostly attributed to his antique car collection, her expert determined that the car collection, alone, was worth almost $400,000.00.

The Master specifically found that appellant’s expert was not credible, and concluded that there was a full and fair disclosure of appellee’s assets to appellant in the antenuptial agreement. Furthermore, in Geyer, supra, the Pennsylvania Supreme Court determined that:

The law is well settled that disclosure between parties need not be exact. Nevertheless disclosure must be “full and fair.” [Citation omitted]. Disclosure may be imprecise only to the extent that it does not obscure the general financial resources of the parties.

Geyer, supra, 516 Pa. 502, 533 A.2d at 427. Considering the fact that appellee disclosed the value of not only the four cars he owned, but also the value of the cars his mother owned, which he expects to inherit upon her death, he did not obscure his financial position.

Appellant’s final assertion is that the antenuptial agreement was superceded by the parties’ handwritten separation agreement dated February 1, 1982. She contends that this agreement required appellee to “pay to support” her, and that this agreement would be “superceded by future agreements after advice of counsel.” Appellant insists that this separation agreement clearly supercedes the antenuptial agreement, and that appellee’s conduct, in paying more than the $25,000.00 specified in the antenuptial agreement, evinces his acknowledgement of his obligation to do so. Z & L Lumber of Atlasburg v. Nordquist, 348 Pa.Super. 580, 502 A.2d 697 (1985).

The Master found that the parties’ separation agreement was executed only to memorialise the date of separation, to set the date at which appellee could move back into the marital residence, and to fix temporary support for appellant and the parties’ minor child while the parties’ living arrangements were being settled. The trial court found that the separation agreement did not supercede the provisions in the antenuptial agreement. It is well settled that this court will defer to the order of the trial court, absent a clear abuse of discretion. Commonwealth ex rel. Vona v. Stickley, 287 Pa.Super. 296, 430 A.2d 293 (1981). There has been no such abuse of discretion.

Finding no abuse of discretion, we affirm the order in question.

ORDER AFFIRMED.

MONTEMURO, J., concurs in the result.

       We note that the Superior Court read Hillegass as requiring an antenuptial agreement to make reasonable provision and to be entered into after full and fair disclosure. This was a misreading of Hillegass which provides that an agreement can survive if either (but not necessarily both) of these requirements is satisfied. See In re Estate of Kester, 486 Pa. 349, 353 n. 4, 405 A.2d 1244, 1246 n. 4 (1979).

      . As stated earlier, Mrs. Geyer had to prove both for, under Hillegass, had reasonable provision been made, the one prong for validity of the antenuptial agreement would have been met. Likewise, had there been full disclosure, there would have been no need to discuss reasonableness. But, in order to prove invalidity, both "prongs" must be absent.

      . We note that although Hillegass dealt with an estate as opposed to a divorce for the purpose of establishing the standards for reasonableness, we find this distinction not to warrant a different holding.

      . A Master's Report in Pennsylvania, although advisory, is to be given the fullest consideration, particularly on the issue of credibility of witnesses. Herwig v. Herwig, 279 Pa.Super. 65, 420 A.2d 746, 748 (1980); Fiorilli v. Fiorilli, 202 Pa.Super. 529, 198 A.2d 369, 370 (1964). This is because the Master has the opportunity to observe and assess the behavior and demeanor of the parties. Herwig, supra, 420 A.2d at 748; Fiorilli, supra, 198 A.2d at 370.


author: CIRILLO, President Judge:

text:
    551 A.2d 226
    Glenn C. KEPPLE and Nora G. Kepple, his Wife, Appellants, v. FAIRMAN DRILLING COMPANY, a Partnership.
    Superior Court of Pennsylvania.
    Argued Sept. 1, 1988.
    Filed Nov. 2, 1988.
    Reargument Denied Dec. 29, 1988.

      George A. Conti, Jr., Greensburg, for appellants.
    Anthony W. DeBernardo, Jr., Greensburg, for appellee.
    Before CIRILLO, President Judge, and TAMILIA and HESTER, JJ.
   CIRILLO, President Judge:

This is an appeal from a judgment entered by the Court of Common Pleas of Westmoreland County in favor of appellee Fairman Drilling Company and against the appellants, Glenn C. and Nora G. Kepple, and from an order requiring an audit and accounting of royalties owed by Fairman Drilling Company to the Kepples and others.

The appellants, the Kepples, leased gas and oil rights which they believed to be attached to twenty five acres owned by them to Fairman Drilling Company in August of 1978. They had acquired the property from Cecelia and Florence Burkley in 1971, subject to “conveyances of mineral rights as set forth in prior instruments of record or apparent on the ground.” The Kepples were unaware of the fact that the mineral rights to the Burkley land, including the parcel which they had purchased, were subject to a previous lease held by Peoples Natural Gas Company [Peoples Natural Gas] entered into by the Burkleys in May of 1957. The lease was to run for ten years, but included a provision which stated that it would continue in effect after that ten year period for as long as that land, or any portion of it, or any other land with which it had been pooled or unitized, was being explored for gas or oil by Peoples Natural Gas, was being used to hold gas or oil in storage, or was being used to produce gas or oil by that company. In 1964, the Burkley property was unitized with another tract of land owned by Rose E. White where a deep gas well had been drilled [the White well]. A shallow gas well [the Burkley well] was later drilled in 1978 on the remaining Burkley property after a series of conveyances which included the conveyance to the Kepples.

Fairman entered onto the Kepple property, and began operations. At this point, Peoples Natural Gas informed Fairman that it, in fact, held the interest in the oil and gas rights to the Kepple property. The two companies then negotiated a “farm out” agreement, which permitted Fair-man to drill two shallow gas wells on the Kepple property, and provided that Peoples Natural Gas would buy the gas produced by those wells.

Peoples Natural Gas then wrote to the Kepples and informed them that it was in possession of a title report which indicated that the Kepples possessed a twenty-five percent interest in the lease of the mineral rights from the Burkleys to Peoples Natural Gas. It stated that it would pay the Kepples proportionate royalties from the Burkley well and from the White well. The company indicated that the proportion of the royalty owing to the Kepples from shallow wells amounted to 41.7585% (this included the Burkley well), while the proportion of the royalty from deep wells (in this case, the White well was the only deep well) was 6.8776%. Peoples Natural Gas also informed Fairman that the Kepples were to receive 41.7585% of the royalty from any shallow wells. Fairman has consistently paid into an escrow account 41.7585% of the total royalties from the two shallow wells it has drilled. The total royalty from those two wells purportedly equals one-eighth of the value of the gas extracted from those wells.

Two lawsuits were filed, one in equity by Robert Briemont, seeking an accounting and a determination of the royalties owed to the Burkley assignees, and one in assumpsit by the Kepples, claiming that they were owed the full one-eighth royalty for all gas removed from their property. These suits were consolidated and heard before the Honorable Charles H. Loughran, sitting without a jury. The judge made extensive findings of fact, and held that Fairman owed a proportionate amount of the royalty from the wells on the Kepple property to various persons, including the Burkley assignees, and that the Kepples were not entitled to the full one-eighth royalty from those wells. The judge then ordered an audit and an accounting to determine the proper payments to each party.

The Kepples filed a motion for post-trial relief requesting that the order of the court be reversed, consolidated with exceptions to the trial court’s findings of fact. The motion and exceptions were denied. After judgment was entered on the verdict in the assumpsit claim, the Kepples appealed to this court.

The Kepples claim on appeal that they were denied due process of law and that the trial court abused its discretion in failing to include in its findings of fact relevant and material evidence. They also argue that the trial court erred in holding that Fairman was not estopped from denying that the lease from the Kepples to Fairman purportedly conveying an interest in oil and gas rights was a valid lease. Lastly, the Kepples complain that the trial court erred in relying on the proportionate reduction clause and the warranty clause in its determination that the doctrine of estoppel was inapplicable. Because we find that there is no merit to any of the arguments raised by the Kepples, we affirm the orders of the trial court.

The Kepples argue that the trial court failed to include findings of fact suggested by them which they insist would go to prove their claim of estoppel. They argue that Fairman, as their tenant, could not question their title, as his landlords, in the oil and gas rights appurtenant to their property. Because the court failed to include in its findings any fact which would go to the estoppel issue, the Kepples insist that they were denied due process of law and a fair trial. They complain that “[h]alf of the evidence presented was not reduced to findings of fact nor considered by the trial court.” For this reason, according to the Kepples, the findings of fact are not supported by the evidence.

The findings of fact of a trial court sitting without a jury are accorded the same weight and effect on appeal as the verdict of a jury. Those findings will not be disturbed on appeal unless they are unsupported by competent evidence, or are predicated on an error of law. Cover v. Cushing Capital Corp., 344 Pa.Super. 593, 598, 497 A.2d 249, 252 (1985); Piccinini v. Teachers Protective Mutual Life Insurance Co., 316 Pa.Super. 519, 524, 463 A.2d 1017, 1021 (1983).

The Kepples do not argue that the findings of fact made by the trial court did not arise from competent evidence. Indeed, an examination of the record indicates that they are supported by facts of record. The Kepples argue instead that the trial court should have included certain findings of fact which would have tended to prove their estoppel argument. Pennsylvania Rule of Civil Procedure 1516 states in part that “[n]o requests for findings of fact and conclusions of law may be submitted except by leave of court. The requests may be treated by the court as suggestions." Pa.R.Civ.F. 1516 (emphasis added). The clear language of the rule states that proposed findings of fact may be treated as suggestions by the trial court. The trial court in this case decided not to accept the findings of fact as offered by the Kepples, and found no need to include findings concerning “the actions of Peoples [Natural Gas] vis-a-vis the owners, the Peoples [Natural Gas] and Fairman title reports, Fairman’s actions under the Drilling Agreement, the Fairman payments to Kepple[,] and the Kepple title report,” because it had determined that estoppel was not an issue in the case.

The decision not to accept the Kepples’ proposed findings of fact was well within the discretion of the trial court. A mere error of judgment does not rise to abuse of discretion; it is only where the trial court, in reaching its conclusion, has overridden or misapplied the law, or where the judgment is manifestly unreasonable, or the result of prejudice, partiality, bias, or ill will illustrated by the record, that it will be found to have abused its discretion. In re Estate of Cornell, 336 Pa.Super. 594, 596-97, 486 A.2d 424, 425 (1985), rev’d on other grounds, 511 Pa. 475, 515 A.2d 555 (1986). That is not the case here. It was perfectly reasonable for the court to eliminate facts it found were not pertinent to the disposition of the case. The trial court could only have abused its discretion if it misapplied the law, and the doctrine of estoppel was in fact applicable.

This is, in effect, what the Kepples argue to us in all the issues they present to us for appeal. Because we agree with the trial court that an estoppel argument was inapplicable in this case, we find that the trial court committed no error of law in excluding those facts which, ostensibly, would have tended to prove that argument.

The Kepples argue that the trial court erred in finding the doctrine of estoppel arising out of landlord/tenant law inapplicable in this case. The trial court held that the Kepples’ promise to convey full interest in the oil and gas rights appurtenant to their property was consideration for Fairman’s promise to pay a full one-eighth royalty to them. The court then held that that consideration had failed because of the prior existing lease from the Burkleys to Peoples Natural Gas. Therefore, Fairman was excused from the promise to pay the full royalty. The Kepples contend that Fairman should not have been permitted to raise the invalidity of the oil and gas lease based on the prior lease because Fairman, as a tenant, was estopped from questioning the title of its landlords, the Kepples. They argue that principles of landlord/tenant law should apply to a situation involving an oil and gas lease and cite Silvis v. Peoples Natural Gas Co., 386 Pa. 453, 126 A.2d 706 (1956), Hamilton v. Pittock, 158 Pa. 457, 27 A. 1079 (1893), Babcock Lumber Company v. Allison, 136 Pa.Super. 353, 7 A.2d 374 (1939), and MacDonald v. O’Neil, 21 Pa.Super. 364 (1902), in support of their arguments.

A close examination of these cases indicates that they do not directly support the Kepples’ contentions. Any support the Kepples may have gleaned from these eases comes only from dicta. See Silvis, 386 Pa. at 460-461, 126 A.2d at 709 (court did not reach issue of whether doctrine of estoppel applied because it found no landlord/tenant relationship existed under facts of case); Hamilton, 158 Pa. at 458, 27 A. at 1080-81 (court upheld jury charge which stated that title dispute between two branches of one family was not in issue, and that question for jury to decide was whether or not the well in question was on land included in one of the leases); MacDonald, 21 Pa.Super. at 366 (court did not specifically apply estoppel doctrine in holding of the case, but only used it to suggest an alternative basis for disposition). The one ease cited by the Kepples which directly applies the landlord/tenant principle that a tenant is es-topped from denying the title of his/her landlord is distinguishable from the situation before us. In Babcock Lumber Co. v. Allison, supra, the court did not apply that rule to an oil and gas lease, but rather to a lease agreement for a group of buildings. Babcock Lumber Co., 136 Pa.Super. at 358, 7 A.2d at 376. The Kepples have failed to cite us any persuasive authority why this estoppel doctrine should apply in a case involving the lease, not of buildings, but of gas and oil rights. We find more persuasive those cases from other jurisdictions which hold that, in such situations, the law of landlord/tenant should not apply.

In Arkansas Louisiana Gas Co. v. Evans, 232 Ark. 495, 338 S.W.2d 666 (1960), the appellee, Evans, bought a void tax title, and thereafter executed a lease of the mineral rights to appellant Arkansas Louisiana Gas Company. Arkansas Louisiana in turn assigned one-half its interest to Arkansas Oklahoma Gas Company, which, in turn, assigned its interest to Stephens Production Company. At the expiration of that lease, Evans again leased the rights to Arkansas Louisiana and Stephens. That lease contained a proportionate reduction clause. Arkansas Louisiana also held a lease from the real owner of the property. Arkansas Louisiana refused to pay the royalty owed to Evans, claiming that his lease was invalid. Evans argued that he was entitled to the full royalty from the appellants for his interest regardless of the invalid lease, and that the appellants, as his tenants, were estopped from questioning his title.

The Arkansas court rejected the argument that landlord/tenant law should apply in situations which involved the lease of mineral rights, distinguishing the rationale behind estopping a tenant from questioning a landlord’s title from the purpose served in permitting the mineral lessee to question the title of his or her lessor. In a landlord/tenant situation, according to the court, the tenant is estopped from questioning the landlord’s title because he or she is only concerned with possession, and as long as that is undisturbed, the tenant has no complaint. Further, the tenant, in taking a lease, undertakes to deliver the premises back intact. Therefore, for the tenant to question title would be a breach of good faith on his or her part. The court reasoned that if, however, the tenant had an option to buy, he or she would be permitted to question title. The court then found that a lessee under a lease of mineral rights was more in the position of a purchaser under a sales. agreement than that of a tenant under a lease:

A mineral lessee is unquestionably more in the position of a purchaser than in that of a mere occupant of the land. By our law, an oil and gas lease conveys to the lessee an interest in the land____ Unlike an ordinary tenant, a mineral lessee is not concerned with possession alone. He does not merely undertake ... “to preserve the possession of the landlord and redeliver it.” Instead, both parties to the lease intend and hope that the lessee will redeliver the premises only after the oil, gas, coal, or other minerals have been removed with payment of royalties to the lessor. Thus the lessee is a purchaser as well as an occupant, and in this situation considerations of good faith and fair dealing require that the lessor have good title to the minerals for which he is receiving a royalty.

Id. at 499-500, 388 S.W.2d 669. See also Cross v. Lowrey, — Ala. ——, 404 So.2d 645, 647-48 (1981) (adopting the Evans rationale, and holding that landlord/tenant law is inapplicable to the lease of mineral rights).

We find the rationale of the Arkansas court to be persuasive, and adopt it in our determination of the ease before us. Because the lessee is a purchaser of the mineral rights, as well as an occupant of the land, we find that the rationale behind the estoppel doctrine of landlord/tenant law serves no purpose here. No considerations of good faith and fair dealing are destroyed when the lessee of a mineral lease questions the lessor’s title.

Further, we agree with the trial court and with the Evans court that the inclusion of a proportionate reduction clause in the lease agreement would support this determination. “The proportionate reduction clause or lesser interest clause is inserted in an oil and gas lease for the lessee’s protection in case it is later found that the lease covers a smaller interest in the minerals than the lessee believed it was leasing.” R. Hemmingway, Law of Oil and Gas § 7.8 (2d ed. 1988). The existence of such a clause permits the lessee to reduce the royalty and rental payments to correspond to the interest actually owned by the lessor. Id.; 8A W. Sommers, The Law of Oil and Gas § 609.2 (Flittie Supp.1987). Clearly, the presence of such a clause in a lease agreement implies that the title of the lessor is not inviolate. “[I]f there is a failure of the lessor’s title he is entitled only to a proportionate interest in the rents and royalties and ... the lessee is not estopped from taking leases from adverse claimants on the theory that a lessee cannot deny his landlord’s title.” Sommers, supra at § 609.2. Under a lease containing a proportionate reduction clause, that title may be questioned, and payments reduced accordingly.

The agreement between Fairman and the Kepples included a proportionate reduction clause. That clause stated:

If gas only is found, second party agrees to pay at the rate of one-eighth (Vs) of the gross proceeds at the prevailing market rate at the mouth of the well per annum payable quarterly, for the product of each well while the same is being used off the premises and marketed, and any interest in said gas heretofore conveyed or reserved shall be paid for proportionately out of said amount of gas royalty.

(emphasis added). The Kepples argue that the proportionate reduction clause is not applicable to a situation where, as here, the total interest is owned by the lessor, but is subject to a prior lease. They argue that this was the case in Watson v. Manual, 467 So.2d 15 (La.App.1985), and on those facts, the Louisiana court found the proportionate reduction clause inapplicable. In view of our discussion, supra, we must reject the contention that the proportionate reduction clause is inapplicable in this situation, and we find that the Kepples’ construction of the Watson case is somewhat oversimplified.

In Watson, the Watsons had leased mineral rights to Shell Oil Company under an agreement which provided that the lease could be extended in the event of pooling. After a period during which the lease would have expired had pooling not occurred, the Watsons leased the mineral rights to Mineral Exchange, for which Manuel was an agent. Mineral Exchange issued a draft as a bonus on that lease, containing language which provided thirty days for a title search. During that time, Mineral Exchange became aware of the prior lease and refused to pay the bonus. At trial, there was testimony which indicated that a portion of the tract leased to Mineral Exchange could have been included in any of four pooling units under the Shell lease.

The appellate court concluded that the only way in which that issue could have been determined conclusively was to survey the ground, and that the burden of conducting such a survey was on the Watsons. It therefore reversed the decision of the trial court granting judgment for the Watsons, and dismissed the suit. Watson, 467 So.2d at 16. The Watsons had also argued, however, that they were in any case entitled to a proportionate royalty and rent from Mineral Exchange due to the proportionate reduction clause in the lease agreement. The court stated that since the clause provided that the payments would be reduced proportionately if “lessor owns less than the entire undivided interest in all or any portion of the lands or mineral rights relating thereto ...” and since there was no question of undivided ownership in that case, the clause was inapplicable. Id. at 17.

Unlike the Watsons, the Kepples did not have an undivided interest in the mineral rights relating to their land. In the case before us, the Burkleys originally leased the oil and gas rights in question to Peoples Natural Gas. The conveyance of property to the Kepples was subject to all conveyances of mineral rights through prior leases, and was, in fact, subject to the Peoples Natural Gas lease. The interest owned by the Kepples was merely a portion of the interest in the oil and gas rights attached to the pooled land. The Kepples acquired their land and any appurtenant mineral rights after the pooling. In the Watson case, Shell Oil also pooled the land in which it held an interest, but the Watsons had owned that land and the interests in it prior to the pooling. Unlike the Kepples, the Watsons did not obtain a lesser interest in the mineral rights attaching land because of the pooling. Because the interest in the mineral right owned by the Kepples devolved to them after the pooling, their interest was never undivided.

In any case, Watson is not persuasive precedent, and we decline to follow it. We agree with the trial court that the proportionate reduction clause is applicable in this case, and that it tends to show that title could in fact be questioned by the lessee, Fairman Drilling Company.

We find therefore, that the trial court did not err in holding that the doctrine of estoppel was inapplicable here, and that therefore there was no error in the trial court’s determination that facts which would ostensibly show estoppel were therefore irrelevant.

AFFIRMED.

      . Although all deeds, conveyances, leases and agreements in the chain of title of the mineral rights had been recorded, and although the Kepples had had a title search done, they seem to have been unaware of the fact that the prior lease to Peoples Natural Gas was continuing under its pooling provision.

      . Cecelia Burkley died in August of 1978, and her estate was devised by will to her sister, Florence. In 1983, Florence assigned all her interest in the property subject to the lease with Peoples Natural Gas, and all royalties due from that lease, to George, Robert, and Francis Bricmont, Rose Quallich, and Jean Cherry.

      . The Kepples also cite Southern Oil & Gas, Inc. v. Hall, 485 So.2d 1066 (Miss.1985), however, this case involved a determination by the chancellor that both parties had acted under a mutual mistake in assuming the interest in question was not subject to a pre-existing lease. The appellate court determined that the chancellor had not erred in fashioning the remedy. Id. at 1067-68. We do not see the relevance of this holding to the present case.

      . The Kepples have not argued to us that the proportionate reduction clause should not have been applied to reduce their royalty, but rather that it was inapplicable to bolster the trial court’s finding that the estoppel doctrine was not applicable here. We do recognize, however, that the Kepples’ entire argument goes to a question of whether the court improperly divided the full one-eighth royalty. In that context, the argument that the proportionate reduction clause is invalid under these facts should be addressed. We find that Watson v. Manuel, discussed infra, supports the conclusion that the royalty was properly divided.


text:
    551 A.2d 232
    COMMONWEALTH of Pennsylvania, v. William Arthur MARCH, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 31, 1988.
    Filed Nov. 23, 1988.
    Reargument Denied Jan. 4, 1989.

      S. Lee Ruslander, West Chester, for appellant.
    Thomas J. Wagner, Phoenixville, Assistant District Attorney, for Com., appellee.
    Before CAVANAUGH, BROSKY and MONTEMURO, JJ.
   BROSKY, Judge:

This is an appeal from the judgment of sentence entered on May 29, 1987.

Appellant was convicted in a jury trial on four counts of corruption of minors, 18 Pa.C.S. § 6301(a), and sentenced to four consecutive three (3) to twenty-three (23) month terms of imprisonment. Appellant filed neither post-verdict motions, a motion for reconsideration of sentence, nor an appeal. After retaining new counsel, however, he did file a petition pursuant to the Post Conviction Hearing Act (“PCHA”), 42 Pa.C.S. § 9541, et seq., alleging various instances of trial counsel’s ineffectiveness. After an evidentiary hearing, the PCHA court found ineffective representation as to sentencing only. Appellant was thus resentenced to four concurrent eleven and one-half (IIV2) to twenty-three (23) month terms of imprisonment, and to the payment of restitution to the victim, with the amount to be determined at a future hearing.

Appellant now raises six assignments of error below, five of which cite trial counsel as ineffective. Appellant contends that trial counsel was ineffective: (1) in failing to file a motion to quash the corruption counts, which were added to the information after the preliminary hearing without leave of court; (2) in failing to request a bill of particulars specifying the conduct alleged to have corrupted the victim’s morals; (3) in failing to object to certain portions of the prosecutor’s closing pertaining to the corruption charges; (4) in failing to submit points for charge, and to take exception to the court’s charge, pertaining to corruption of minors; and (5) in failing to file a motion in arrest of judgment based on the failure of the Commonwealth to prove corruption. Additionally, appellant assigns error to the sentencing court for its failure, upon resentencing: (a) to place reasons on the record in support of the second sentence; (b) to hold a hearing prior to the imposition of restitution; and (c) to permit the filing of a second motion for reconsideration of sentence.

Upon consideration of the record and the briefs of counsel, we find merit in appellant’s second contention of ineffectiveness, with respect to the failure to obtain a bill of particulars, and, accordingly, we vacate and remand for a new trial on the four charges of corruption of minors.

The victim testified to the following facts at the preliminary hearing, and again at trial: The victim had been the girlfriend of appellant’s son for four years, and was seventeen (17) at the time of the incidents from which the charges derived. She made weekly visits to appellant’s home to pick up produce for her family.

During the victim’s weekly visit on September 18, 1984, appellant allegedly forced her to the floor, forcibly fondled, kissed, and performed oral sex upon her. After this alleged attack, the victim left immediately with her produce.

The victim again went to appellant’s home, despite the September 18 incident, on October 16, November 20, and December 11 of 1984. On these dates, appellant allegedly, again, forcibly fondled and kissed her; additionally, he forcibly performed two more acts of oral sex upon her, and raped her twice. As in the first incident, the victim left with her produce, after appellant loaded the produce into her car.

Appellant was arrested on February 27, 1985, and charged in the criminal complaint with two counts of rape, two counts of deviate sexual intercourse, and four counts of indecent assault. After a preliminary hearing, and the waiver by appellant of a formal arraignment, the information was prepared, approved, and filed. It contained, however, four new charges, setting forth in the general language of the statute only, that appellant had corrupted the morals of a minor in each of the four incidents. Appellant never received another preliminary hearing on the new charges, and the charges were added without leave of court. Despite this, appellant’s trial counsel did not file a motion to quash the information. He also did not request a bill of particulars to determine if there were any specific factual allegations, apart from those already contained in the other counts, upon which the Commonwealth intended to base its corruption case.

At trial, appellant testified in his own defense that he had never had sexual intercourse, forcibly or otherwise, with the victim, but had engaged in some consensual oral sex with the victim. As a result, in closing to the jury, the prosecution argued that, even if the jury found the Commonwealth’s evidence to be too incredible, they nevertheless had to find appellant guilty of corruption if they “only believe(d) what this defendant told” them. The jury acquitted appellant on the rape, involuntary deviate sexual intercourse, and indecent assault counts, but found appellant guilty on all four corruption counts.

No post-trial motions were filed, and appellant was sentenced to serve consecutive terms of three (3) to twenty-three (23) months imprisonment on each corruption count Neither a motion for reconsideration, nor an appeal from the judgment of sentence, was filed.

New counsel was hired, and a PCHA (Post Conviction Hearing Act) petition, alleging several grounds on which trial counsel was ineffective, was filed on March 31, 1986. On May 15, 1986, an evidentiary hearing on appellant’s PCHA petition was held. The PCHA court found merit to appellant’s ineffectiveness claim with respect to his sentence only. As a result, on May 1, 1987, appellant’s PCHA petition was denied on all other grounds, but reconsideration of appellant’s sentence was expressly granted, and, on May 29, 1987, the judgment of sentence now appealed from was entered.

As we are reversing on the basis of appellant’s second contention of ineffectiveness, pertaining to the failure of trial counsel to request a bill of particulars, we shall be limiting our discussion to that contention, and to contention (1) only insofar as appellant’s attack upon the information bears relevance to the bill of particulars question.

The standard of review for ineffectiveness claims is firmly settled. A defendant may not prevail upon a claim of ineffectiveness unless he is able to demonstrate that: (1) the issue underlying the ineffectiveness claim is of arguable merit; and (2) the course of action chosen by counsel had no reasonable basis, independent of hindsight, in the promotion of defendant’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Furthermore, assuming the defendant is able to meet this two-pronged test, he must then be able to demonstrate that the claimed ineffectiveness so prejudiced his defense that he did not receive a fair trial. Commonwealth v. Pierce, 345 Pa.Super. 324, 498 A.2d 423 (1985), aff’d 515 Pa. 153, 527 A.2d 973 (1987).

As a starting point, we accept as true the Commonwealth’s position that contention (1), concerning trial counsel’s failure to attempt to quash the information as defective, is without merit. Even presuming that the information could have been quashed, there would have been nothing to prevent the Commonwealth from rearresting appellant on the corruption charges, and, in point of fact, trial counsel testified at the PCHA evidentiary hearing that this is the precise reason he did not file a motion to quash. (N.T., May 15, 1986, pp. 56-57.)

Contention (2), however, pertaining to counsel’s failure to request a bill of particulars as to the added corruption counts, presents an entirely different area of inquiry.

A motion for a bill of particulars does not question the sufficiency of an indictment or information, but, rather assumes its validity. It does not become part of the indictment or information, and therefore can neither remedy a defective indictment or information, nor render an indictment or information good on its face demurrable. Commonwealth v. Dimmig, 310 Pa.Super. 92, 456 A.2d 198, 201 (1983); Commonwealth v. Hershman, 171 Pa.Super. 134, 90 A.2d 314, 317 (1952), aff'd 374 Pa. 311, 97 A.2d 77 (1953). The function of a bill of particulars, rather, is to give notice to the accused of the offenses charged in order to permit him to prepare a defense, avoid surprise, and be placed on notice as to any restrictions upon the Commonwealth’s proof. Dimmig, supra; see also Commonwealth v. Bartman, 240 Pa.Super. 495, 367 A.2d 1121, 1127 (1976) (en banc), and Commonwealth v. Simione, 447 Pa. 473, 291 A.2d 764, 766 (1972).

Where the bill of particulars is broader than the actual evidence at trial, there is no error; conversely, however, where the bill of particulars specifically limits proof to be adduced at trial to specific acts, the Commonwealth is not permitted to obtain a conviction on the offense charged by proof of acts other than those specified in the bill. See Dimmig, supra (broad bill of particulars listing several narcotics transactions permitted Commonwealth to present evidence on only one of those specified transactions); also see Simione, supra (where bill of particulars gave notice that charge was sale of drugs, and proof at trial showed distribution and not sale, evidence was inadmissible and judgment of sentence was reversed for failure to prove sale).

Of equal significance, with respect to the actual charge levied against appellant, it has been held that, where an accused is charged with corruption by one act, and the Commonwealth does not prove that act, but proves some other act, a conviction for corruption based upon the other act cannot stand. Commonwealth v. Davison, 243 Pa.Super. 12, 364 A.2d 425, 430 (1976) (en banc); Commonwealth v. Lambert, 226 Pa.Super. 41, 313 A.2d 300, 301 (1973) (en banc).

Turning to the matter sub judice, then, trial counsel gave the following testimony on cross-examination at the evidentiary hearing, pertaining to his failure to request a bill of particulars:

“BY MR. RUSLANDER:
“Q. Mr. Beggs, did you consider whether you should file a bill of particulars in this case?
“A. No.
“Q. What is the function of, as you understand it, a bill of particulars?
“A. Basically an offer of proof.
“Q. Is it not a way of preventing surprise at trial and limiting the Commonwealth’s evidence?
“A. Certainly.
“Q. When the — when you first became aware of the charge of corrupting being added to this information, did you specifically explain to Mr. March what was the basis as you understood it for the four specific counts?
“A. I don’t know if I did it immediately upon receiving the information back from the D.A. but yes, I did explain it to him.
“Q. Would you tell me, please, what did you tell him concerning the four counts of corrupting as to what specific acts were being relied upon by the Commonwealth to prove those cases?
“A. Those same acts that were used to be — or were being used for the other four counts.
“Q. Would that be — would I be correct in stating that in your opinion that consisted of two counts of forcible rape and two counts of forced involuntary deviate sexual intercourse?
“A. Yes.
“Q. Did you at any time in your mind think that the charges included consensual acts between Mr. March and the victim?
“A. What charges?
“Q. The corrupting the morals?
“A. I’m not sure I understand your question, Mr. Ruslander.
“Q. Did you at any time feel that the basis of the charge of corrupting the morals was consensual sexual activity between Mr. March and the victim?
“A. I don’t know really whether I did or not. But I would probably say yes, I did, and that would be specifically the oral sex.
“Q. Mr. March had informed you, had he not, that he had engaged in one act of oral sex with this young lady?
“A. Yes.
“Q. He was consistent with that from day one, was he not?
“A. No.
“Q. The three counts — well, what was the basis of the other three counts, Mr. Beggs, in your mind, other than the one act of oral intercourse which Mr. March testified to, what were the basis of the other three counts charging the corrupting the morals?
“A. In my mind? The other three incidents, the one specifically dealing with the oral sex and the two dealing with the alleged rape.
“Q. Did you explain that to Mr. March?
“A. Yes.
“Q. Did you ever attempt to verify that or confirm that with Mr. Green?
“A. No.
“Q. Did you realize that there existed a principal of law that if the basis of a corrupting of the morals charge was set forth on the information or alleged in a bill of information that an acquittal of the specific charge required an acquittal on the corrupting charge?
“THE COURT: What case?
“MR. RUSLANBER: Commonwealth versus Lambert, 226 Pa.Super. 41, Commonwealth versus Simione, SIMIONE, 291 Atlantic 2nd 764. Commonwealth v. Davison, 243 Pa.Super. 12. That’s set forth on page two of the brief.
“Q. Were you aware of that principal of law?
“A. If that principal of law is as you just stated it I was unaware of it.
* * sic * * #
“Q. As you sit here today knowing that the jury found Mr. March not guilty of the first eight counts of that information which eight counts charge the specific sexual offenses that he was alleged to have committed would you not have filed a motion for bill of particulars to find out the basis of the corrupting charges, knowing that if the jury acquited [sic] him of the underlying charges that they would have had to acquit him on the corrupting charges?
“A. Knowing what I know today would I have done?
“Q. Yes. Knowing that principal of law?
“A. Yes. If that is the principal of law, yes.
* sj< * sj« * m
“Q. You knew in your case that they had not set forth any specific acts, did you?
“A. There were many specific acts, Mr. Ruslander.
“Q. Excuse me, in the corrupting charges?
“A. No, no specific.
sfc 4* * sis % *
“Q. What protection did Mr. March have by your trial strategy of not filing for a bill of particulars when you had — when he admitted kissing this girl? What protection did he have at trial that the jury would not find that he corrupted the morals of this victim because he was 39 and she was 17 by engaging in french kissing?
“A. None if he needed that protection.
“Q. Would you agree with me that at this point we don’t know whether or not he needed that protection?
“A. Not knowing exactly what the jury found I’ll agree with that, yes.
“Q. But you would agree, will you not, that they could have relied on any act — that they found in the testimony, that they felt corrupted or tended to corrupt, is that correct?
“A. Yes.
“Q. Did you advise your client prior to trial that if he admitted french kissing or petting consensually with the victim that he could be found guilty of corrupting the morals on those counts?
"A. With respect to petting or french kissing.
“THE COURT: I think we’re going to have to be a little more specific. I hate to be too nitty gritty but what do you mean by petting?
“BY MR. RUSLANDER:
“Q. Did you advise Mr. March that if he admitted that he consensually fondled the breasts of the victim that he could be found guilty of corrupting the morals?
“A. I don’t know whether 1 advised him of that or not, Mr. Ruslander.
“Q. You would agree with me, would you not, that there would have been no need to advise him of that if you were correct in your assumption that the charges were based on what was originally charged against Mr. March?
“A. My assumption was based on two acts of intercourse and two acts of oral sex.
“Q. And you do agree with me now that there is no sure answer that your assumptions were correct?
“A. Absolutely.”

(N.T., May 15, 1986, pp. 80-89). (Emphasis supplied.)

We believe this testimony, taken in conjunction with the above-cited law, establishes trial counsel’s ineffectiveness.

With respect to the merit underlying appellant’s contention that a bill of particulars should have been sought, the applicable law establishes that, had the Commonwealth alleged in the bill that the corrupting acts with which appellant was being charged were rape, involuntary deviate sexual intercourse, and indecent assault, all of which involve the element of force, or lack of consent, the Commonwealth could not have obtained a conviction upon proof of consensual sexual behavior. An acquittal upon the first eight counts would have mandated an acquittal on the corruption counts.

The Commonwealth attempts to circumvent this point of law by noting that: (1) it is only speculative that the Commonwealth would have specified nonconsensual acts as the bases for the corruption charges, which would have put appellant in the same posture; and (2) appellant was under an obligation to testify truthfully, and, therefore, had to admit to consensual acts with the victim. These arguments, however, ignore a crucial point. Had appellant been placed on notice, by a bill of particulars, that the Commonwealth would be attempting to prove corruption on the basis of any sexual interaction whatsoever, appellant was under no obligation whatsoever to testify, and could have elected to maintain silence, taking his chances that the victim would be totally disbelieved. While the Commonwealth suggests that such a course of action would have been “ludicrous”, we disagree. Clearly, the jury’s verdict of acquittal on the first eight counts is indicative that the victim’s credibility was considered to be suspect. Without appellant’s tantamount confession of guilt on the stand, it is entirely possible that the jury might have disregarded the victim’s story in its entirety.

However, appellant did not have the opportunity to make a knowing and intelligent decision as to whether to testify.

Moreover, we cannot deem counsel’s “strategy” to have been reasonable. Despite his understanding that a consensual act could provide the basis for a corruption conviction, he did not request a bill of particulars, and cannot remember if he advised appellant that his own admission of consensual behavior could constitute corruption of a minor. Counsel’s basis for the failure to request a bill was not, by his own admission, a knowing and informed selection of “strategy”, as he was in complete ignorance of the law pertaining to the limitations placed upon the Commonwealth’s evidence by a specific bill of particulars in a corruption of minors context. He further admitted that, had he been aware of the principle of law concerned, he would have requested a bill, and that his failure to do so left his client unprotected at trial.

Finally, it cannot be seriously averred that counsel’s unreasonable failure to obtain a bill did not deprive appellant of a fair trial. Had the Commonwealth specified non-consensual acts as the basis for the corruption charges, appellant’s own testimony would not have harmed him, and an acquittal on the first eight counts would have mandated acquittal on the corruption counts. Conversely, had the Commonwealth given a bill that permitted evidence of consensual behavior to convict appellant of corruption, appellant could have made an informed, intelligent decision as to whether to invoke his privilege not to give incriminating evidence against himself. In either case, appellant was severely prejudiced at trial.

In light of the foregoing, we deem trial counsel to have , been ineffective. We vacate the judgment of sentence, and remand for a new trial on the corruption charges only. Jurisdiction is relinquished.

      . This petition was filed prior to the 1988 amendments to the ¡Post Conviction Hearing Act, now the Post Conviction Relief Act ("PCRA”).

      . The added counts each read as follows:
      MISDEMEANOR OF THE FIRST DEGREE: Corruption of Minors that on or about (date) 1984, the defendant above named in the County aforesaid and within the jurisdiction of this Court, did being the age of years and upwards, corrupt or tend to corrupt the morals of a child under age of 18 years or aided, abetted, enticed or encouraged a minor in the commission of any crime.
      Citation: 18 C.P.S.A., Section 6301(a).
      This language is almost identical to that of the cited statutory section:
      § 6301. Corruption of minors
      (a) Offense defined. — Whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or encourages any such minor in the commission of any crime, or who knowingly assists or encourages such minor in violating his or her parole or any order of court, is guilty of a misdemeanor of the first degree.

      . See 18 Pa.C.S. §§ 3121, 3123, 3126.

      . We note that today’s decision is reached with some misgivings, as it would appear that appellant did engage in corrupting acts with the victim, by his own admission. Under the 1988 amendments, appellant would not be eligible for relief, as innocence of the crime charged is a prerequisite to relief. See 42 Pa.C.S. § 9542, as amended, effective April 13, 1988. We commend the legislature, and are hopeful that today’s result will not have to be reached in future cases.