author: WIEAND, Judge: CAVANAUGH, Judge,

text:
    610 A.2d 979
    Lucille HAMMEL and Joseph Hammel, her husband, Appellants, v. Dara Lyn CHRISTIAN, Appellee, v. Mary Theresa HAMMEL, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 14, 1992.
    Filed May 29, 1992.
    Reargument Denied July 29, 1992.

      Samuel Cordes, Pittsburgh, for appellants.
    John E. Kunz, Pittsburgh, for Christian, appellee.
    Before CAVANAUGH, WIEAND and HESTER, JJ.
   WIEAND, Judge:

On April 25, 1985, at or about 6:45 p.m., vehicles driven by Dara Lyn Christian and Mary Theresa Hammel, now DeClaudio, came into collision at the intersection of Brownsville Road and Sixth Avenue in the Township of South Park, Allegheny County. The intersection was controlled by a traffic light. Injured as a result of the collision was Lucille E. Hammel, a passenger in the vehicle operated by her daughter, Mary Theresa. Lucille Hammel and her husband, Joseph, commenced a civil action against Dara Lyn Christian, who caused Mary Theresa DeClaudio to be joined as an additional defendant. At trial, the jury found that only Mary Theresa DeClaudio, the additional defendant, had been negligent in causing the accident and awarded damages of fifty-five thousand ($55,000.00) dollars to the wife-plaintiff. Post-trial motions were denied, judgment was entered on the verdict, and the plaintiffs appealed.

The trial court did not err when it denied appellants’ motion for judgment n.o.v. “A judgment n.o.v. may be entered only in a clear case where the facts are such that no two reasonable persons can fail to agree that the verdict is improper.” Lira v. Albert Einstein Medical Center; 384 Pa.Super. 503, 508, 559 A.2d 550, 552 (1989), allocatur denied, 527 Pa. 635, 592 A.2d 1302 (1990). See: Fleck v. Durawood, Inc., 365 Pa.Super. 123, 127, 529 A.2d 3, 5 (1987). In ruling upon a plaintiff’s motion for judgment n.o.v., moreover, a trial court is required to consider the evidence, as well as all reasonable inferences therefrom, in the light most favorable to the defendant who won the verdict. Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 351, 414 A.2d 100,103 (1980); Lira v. Albert Einstein Medical Center, supra at 508, 559 A.2d at 552.

In the instant case, there was evidence that the additional defendant, while driving on a four lane road, had attempted to make a left turn across two lanes of approaching traffic at a time when her vision was partially obstructed by other vehicles and without first ascertaining that the curb lane was free of traffic moving into the intersection with a green light. Under these circumstances, a jury could reasonably find that it had been the additional defendant who was one hundred (100%) percent at fault in causing a collision with a vehicle which had been operated by the defendant in the curb lane.

Jeanine Reese Schultz, a witness, was residing outside Pennsylvania and was unwilling to testify on plaintiffs’ behalf. At the scene of the accident, according to the testimony of the wife-plaintiff and her daughter, the witness had told them that Ms. Christian was speeding. Testimony of this statement was received in evidence. However, the trial court disallowed testimony regarding a similar statement made by the witness to an investigating police officer fifteen (15) to eighteen (18) minutes after the accident. The trial court also excluded evidence of a statement made by the witness to a private investigator almost five months after the accident. Appellants contend that the exclusion of these statements was error.

Hearsay is an out of court statement offered to prove the truth of the matter asserted. Hreha v. Benscoter, 381 Pa.Super. 556, 565, 554 A.2d 525, 529 (1989); Spotts v. Reidell, 345 Pa.Super. 37, 42, 497 A.2d 630, . 633 (1985). Hearsay evidence is inadmissible, primarily because out of court statements “are not generally made under conditions in which they may be subjected to testing by cross-examination.” Packel and Poulin, Pennsylvania Evidence § 802. See: Carney v. Pennsylvania R.R. Co., 428 Pa. 489, 240 A.2d 71 (1968); Commonwealth v. Joraskie, 360 Pa.Super. 97, 100, 519 A.2d 1010, 1011 (1987). The res gestae or excited utterance exception to the hearsay exclusion was defined by the Supreme Court of Pennsylvania in Allen v. Mack, 345 Pa. 407, 28 A.2d 783 (1942), as

a spontaneous declaration by a person whose mind has been suddenly made subject to an over-powering emotion caused by some unexpected and shocking occurrence, which that person has just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties. In a res gestae declaration the exciting event speaks through the impulsive words of a participant or onlooker. It is in a psychological sense a part of the act itself. The apparent condition of the declarant’s mind when the declaration is made is the test of the latter’s admissibility as a part of the res gestae. To make the declaration admissible the state of the declarant’s mind as induced by the shock of the occurrence must be such as to integrate his spontaneous declaration exclusively with the occurrence itself.

Id., 345 Pa. at 410, 28 A.2d at 784-785. In Commonwealth v. Sanford, 397 Pa.Super. 581, 580 A.2d 784 (1990), allocatur denied, 527 Pa. 586, 588 A.2d 508 (1991), the Superior Court explained further as follows:

In considering the facts of particular cases where this issue has been raised, the courts have considered: 1) whether the declarant, in fact, witnessed the startling event; 2) the time that elapsed between the startling event and the declaration; 3) whether the statement was in narrative form (inadmissible); and, 4) whether the declarant spoke to others before making the statement, or had the opportunity to do so.

Id., 397 Pa.Superior Ct. at 589, 580 A.2d at 788. Time, therefore, is an important factor.

If the statement occurs while the exciting event is still in progress, courts have little difficulty finding that the excitement prompted the statement. But as the time between the event and the statement increases, so does the reluctance to find the statement an excited utterance____ Perhaps an accurate rule of thumb might be that where the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process.

Packel and Poulin, Pennsylvania Evidence, § 803.2, at p. 569, quoting McCormick, Evidence, § 297 at p. 856 (3d ed. 1984).

In the instant case, the trial court held that a statement made by the witness to an investigating police officer fifteen (15) to eighteen (18) minutes after the accident and after the witness had earlier spoken to two of the parties involved in the accident was not shown to have been induced by the shock of seeing the accident. We find no error in this evidentiary ruling. In Haas v. Kasnot, 371 Pa. 580, 92 A.2d 171 (1952), a statement made to a police officer two or three minutes after the accident was excluded because it was not shown to be an “emotional, impulsive outburst made under the spell of excitement or shock caused by the occurrence to which [the statement] relate[d] and uttered before the process of the intellect [had] had opportunity to come into play.” Id., 371 Pa. at 583-584, 92 A.2d at 173.

The statement made by the witness to a private investigator almost five months after the accident was also subject to exclusion as hearsay; it was not admissible as past recollection recorded. Before the content of a writing becomes admissible under the hearsay exception for past recollection recorded, the proponent must show that the following four requirements have been met:

“1) the witness must have had firsthand knowledge of the event; 2) the written statement must be an original memorandum made at or near the time of the event and while the witness had a clear and accurate memory of it; 3) the witness must lack a present recollection of the event, and 4) the witness must vouch for the accuracy of the written memorandum.”

Commonwealth v. Cooley, 484 Pa. 14, 21, 398 A.2d 637, 641 (1979), quoting McCormick, Evidence, § 299 at p. 712 (2d Ed.1972). In the instant case, the statement was not made at or near the time of the accident, and the witness refused to vouch for the accuracy of the written statement allegedly made to plaintiffs’ private investigator. When her depositions were taken in Ohio, she professed to lack any recollection of the accident and either could not or would not vouch for the accuracy of the statement produced by the plaintiffs. Indeed, she said she didn’t remember giving the statement. Under these circumstances, the trial court did not err when it held that the written statement allegedly made to the private investigator was hearsay and inadmissible.

Prior to trial, the plaintiffs settled their claim against their daughter, the additional defendant, and executed a joint tortfeasor’s release. As a part of that release, plaintiffs agreed that at trial they would not present any evidence against their daughter, Mary Theresa Hammel DeClaudio. At trial, the wife-plaintiff was cross-examined about this agreement. Appellants contend that this was error. We disagree.

The agreement not to present evidence against her daughter was relevant to attack the credibility of the wife-plaintiff’s version of the accident. A review of the record discloses that the jury was never told that the plaintiffs’ claim against the additional defendant had been settled. Moreover, although the language of the release was shown to the wife-plaintiff, the release was not given to the jury to examine, and it was identified in the testimony merely as “this document which you and your husband signed.” The true nature of the document was not at any time divulged to the jury. The trial court, under these circumstances, did not commit error or abuse its discretion by allowing the witness to be cross-examined about her agreement not to give testimony against the additional defendant.

Appellants argue that such cross-examination was in violation of statutory law, adopted at 42 Pa.C.S. § 6141(c), which provides that a settlement or payment of a claim is not admissible in evidence. As previously discussed, the settlement agreement was not admitted as evidence, and its existence was never revealed to the jury. Hence the prohibition in § 6141(c) was never violated. The statute does not render inadmissible those statements which are made during settlement negotiations when the statements are otherwise admissible as admissions or declarations against interest or when they are relevant to aid a jury in assessing the credibility of testimony given by a party. See: Rochester Machine Corp. v. Mulach Steel Corp., 498 Pa. 545, 551, 449 A.2d 1366, 1369 (1982); Mannella v. City of Pittsburgh, 334 Pa. 396, 403, 6 A.2d 70, 73 (1939); Rabinowitz v. Silverman, 223 Pa. 139, 144, 72 A. 378, 380 (1909). In such cases, a trial court is only required to exclude reference to the compromise, while allowing the jury to hear the statements. Packel and Poulin, Pennsylvania Evidence, § 408 at p. 200 (1987). See: Rabinowitz v. Silverman, supra.

Finally, appellants argue that the trial court erred when it disallowed cross-examination of the defendant regarding ownership of the vehicle which she had been driving at the time of the accident. In fact, the vehicle was owned by Kimberly Clark Corporation, the employer of defendant’s father, to whom use of the vehicle had been entrusted. The trial court ruled that this evidence was irrelevant. Appellants appear to concede the substantive irrelevancy of the legal ownership of the car but contend that it should have been allowed to contradict the defendant who, when asked whose car she was driving, replied, “my father’s.”

“[T]he scope and limits of cross-examination are within the trial court’s discretion, and the court’s rulings thereon will not be reversed in the absence of a clear abuse of discretion or an error of law.” Kearns by Kearns v. DeHaas, 377 Pa.Super. 200, 205, 546 A.2d 1226, 1228-1229 (1988), allocatur denied, 522 Pa. 584, 559 A.2d 527 (1989), quoting Kemp v. Qualls, 326 Pa.Super. 319, 324, 473 A.2d 1369, 1371 (1984). A trial court will not be reversed where it exercises its discretion to limit cross-examination regarding collateral matters. Chiorazzi v. Commonwealth, Dept. of Highways, 411 Pa. 397, 400, 192 A.2d 400, 401 (1963); Kearns by Kearns v. DeHaas, supra, 377 Pa.Superior Ct. at 205, 546 A.2d at 1229. In the instant case, the trial court did not err when it refused to permit the defendant to be cross-examined about the ownership of the vehicle which she was driving at the time of the accident and the agreement between her father and Kimberly Clark Corporation regarding the use of such vehicle. In Papa v. Pittsburgh Penn-Center Corporation, 421 Pa. 228, 218 A.2d 783 (1966), the Supreme Court adopted the opinion of the trial court which had held, in part, as follows:

The law is clear in Pennsylvania that a witness may not be contradicted on matters not germane to the issue involved: Commonwealth v. Burdell, 380 Pa. 43, 51, 110 A.2d 193; Zubrod v. Kuhn, 357 Pa. 200, 203, 53 A.2d 604; Commonwealth v. Petrillo, 341 Pa. 209, 19 A.2d 288. In Commonwealth v. Petrillo, 341 Pa. at 223, 19 A.2d at 295, the Court stated:
“There seems to be considerable misunderstanding on the rules of evidence relating to the contradiction of witnesses. No witness can be contradicted on everything he testifies to in order to ‘test his credibility’. The pivotal issues in a trial cannot be ‘side-tracked’ for the determination of whether or not a witness lied in making a statement about something which has no relationship to the case on trial. The purpose of trials is not to determine the ratings of witnesses for general veracity. A witness can be contradicted only on matters germane to the issue trying. There is no rule more firmly established than this: ‘No contradiction shall be permitted on collateral matters.’ ” (Emphasis in the original).

In the same case, 341 Pa. at 224, 19 A.2d at 295 the Court quoted from Wigmore on Evidence, 3rd ed., Vol. 3, Section 1003 as follows:

“The only true test [of ‘collateralness’] is * * * ‘Could the fact, as to which error is predicated, have been shown in evidence" for any purpose independently of the contradiction?’ ”

421 Pa. at 229, 218 A.2d at 789. Judged by this standard, it seems clear that the ownership of the vehicle being driven by the defendant and the agreement between her father and Kimberly Clark were collateral matters. To have allowed cross-examination regarding such matters would have served to divert the jury’s attention from the relevant issues of fault in this accident, while serving no proper purpose.

The case was well tried before an able and experienced trial judge who committed neither trial error nor abuse of discretion. The judgment entered on the jury’s verdict, therefore, must be, as it is,

Affirmed.

CAVANAUGH, J., files a concurring opinion.

CAVANAUGH, Judge,

concurring:

I join in the majority’s disposition of all issues with the exception of whether it was proper for the lower court to permit the original defendant’s counsel to cross-examine plaintiff Lucille Hammel with a discrete portion of a joint tortfeasor release. I agree with the majority that the trial court did not err in allowing such cross-examination. However, I believe that the majority’s rationale is erroneous insofar as it relies for support on cases which interpret the common law rule for offer of compromise instead of cases which interpret 42 Pa.C.S.A. § 6141, the law which governs completed compromise agreements. See Part I, infra. In Part II, infra, I present my own rationale for permitting the cross-examination of plaintiff Lucille Hammell. The lower court was presented during trial with a provision in a joint tortfeasor release which appeared to require that the plaintiffs not to give testimony against the additional defendant. This provision could easily be seen as a direct attempt to frustrate the administration of justice. I would hold that the lower court committed no abuse of discretion, after not being convinced that the provision was innocuous after a lengthy side bar, in allowing limited cross examination.

I.

The majority’s analysis fails to acknowledge that our Commonwealth appears to treat differently admissions revealed during the course of negotiating a settlement agreement and information contained in a settlement agreement. I submit we are faced with the latter, not the former, as plaintiff Lucille Hammel was cross-examined based on a provision in a settlement agreement. I also submit that the rule which states admissions made during the course of settlement negotiations are admissible at trial, if it continues to have vitality, is not applicable to admissions appearing in a settlement agreement. The former is a rule derived from the common law, as opposed to the latter, which is governed by an explicit statutory provision, 42 Pa.C.S.A. § 6141.

The admissibility into evidence of a settlement agreement is governed by 42 Pa.C.S.A. § 6141. It reads in pertinent part as follows:

§ 6141. Effect of certain settlements.
(a) Personal injuries. — Settlement with or any payment made to an injured person or to others on behalf of such injured person with the permission of such injured person or to anyone entitled to recover damages on account of injury or death of such person shall not constitute an admission of liability by the person making the payment or on whose behalf this payment was made, unless the parties to such settlement or payment agree to the contrary.
(b) Damages to property. — Settlement with or any payment made to a person or on his behalf to others for damages to or destruction of property shall not constitute an admission of liability by the person making the payment or on whose behalf the payment was made, unless the parties to such settlement or payment agree to the contrary.
(c) Admissibility in evidence. — Except in an action in which final settlement and release has been pleaded as a complete defense, any settlement or payment referred to in subsections (a) and (b) shall not be admissible in evidence on the trial of any matter.

This Court is no stranger to articulating the breadth of the above section. On numerous prior occasions we have opined on a request by counsel to utilize settlement agreements to show bias, prejudice or interest. On all of these occasions we have pronounced that the section is a formidable bar to counsel who wish to so utilize a settlement agreement. On at least two occasions we have characterized the protection of this section as relatively ‘inflexible.’ Wilkerson v. Allied Van Lines, Inc., 360 Pa.Super. 523, 534, 521 A.2d 25, 31 (1987) appeal dismissed, 518 Pa. 61, 540 A.2d 268 (1988); Weingrad v. Philadelphia Elec. Co., 324 Pa.Super. 16, 20 n. 3, 471 A.2d 100, 103 n. 3 (1984). On another occasion we have declared that “[i]t is axiomatic that the settlement agreement among the settling tortfeasors could not be admitted or used for any purpose during the trial of this matter.” Cipriani v. Sun Pipe Line Co., 393 Pa.Super. 471, 481, 574 A.2d 706, 711-2 (1990). Most recently, we have addressed whether a version of the so-called “Mary Carter Agreement,” a secret settlement agreement which realigns the interests of a co-defendant with a plaintiff in a heavy-handed fashion, was admissible. Hatfield v. Continental Imports, Inc., 396 Pa.Super. 309, 578 A.2d 530, 532 (1990), alloc. granted 527 Pa. 601, 589 A.2d 691 (1991). We found that such was not the case, as elaborated below.

A “Mary Carter Agreement” derives its name from the Florida decision Booth v. Mary Carter Paint Co., 202 So.2d 8 (Fla.App.1967). It is a secret agreement between a plaintiff and a co-defendant which gives the co-defendant incentive to support the plaintiffs case. The classic formulation is that the defendant agrees to remain in the action and will pay to the plaintiff a set amount regardless of the action’s outcome, but the defendant’s own liability will be diminished proportionally by increasing the liability of the other co-defendants. In Hatfield, we held that even if the pertinent agreement was a “Mary Carter Agreement,” “the express mandate of § 6141(c) prohibits admission of such an agreement.” Id., 396 Pa.Superior Ct. at 312, 578 A.2d at 531.

Given our, if anything, rigid adherence to a broad interpretation of the statute’s scope, the majority opinion is puzzling. The tenor of the majority’s argument is that an admission contained in a settlement agreement may be used for cross-examination to display bias or prejudice of a witness. The Majority takes no notice of our pronouncements in Hatfield, Cipriani, Wilkerson, and Weingrad. The majority opinion instead looks to the analysis set forth in part II of Rochester Machine Corp. v. Mulach Steel Corp., 498 Pa. 545, 551, 449 A.2d 1366, 1369 (1982) for authority. This is troublesome, as this section indicates it was reaffirming the validity of the common law rule of an offer to compromise. Rochester, supra, at 551, 449 A.2d at 1369. Thus, the majority looks to the common law rule of an Offer to compromise to interpret a statutory provision which appears to be a different rule. The common law rule of an offer to compromise allows the admission of distinct admissions of fact made during the course of negotiation. Rochester, supra, 498 Pa. at 556, 449 A.2d at 1371. Section 6141, however, as our broad pronouncements in Hatfield et al. indicate, would keep admissions and declarations against interest appearing in a settlement agreement confidential.

II.

I would dispose of this issue differently. The conduct of trial is within the discretion of the trial judge. Kearns v. Clark, 343 Pa.Super. 30, 40, 493 A.2d 1358,1363 (1985); see also, Air Products and Chemicals, Inc. v. Johnson, 296 Pa.Super. 405, 433, 442 A.2d 1114, 1129 (1982). Moreover, the scope and limits of cross-examination are within the trial court’s discretion, and will not be reversed absent an abuse of discretion or an error of law. Kemp v. Qualls, 326 Pa.Super. 319, 324, 473 A.2d 1369,1371 (1984); see also, Gatling v. Rothman, 267 Pa.Super. 566, 571, 407 A.2d 387, 389 (1979). The facts sub judice differ in nature, not in degree, from those in our decisions in Hatfield, Cipriani, Wilkerson, and Weingrad. As the Majority notes, the joint tortfeasor release contains a provision which easily lends to the interpretation, that as part of the agreement, the plaintiffs agreed not to give testimony against the additional defendant. The provision reads: “[t]his Release expressly includes ... the express agreement of the Plaintiffs, LUCILLE E. HAMMEL and JOSEPH HAMMEL, her husband, not to present any evidence against MARY THERESA HAMMEL.” (emphasis in original). This provision conflicts with legislative enactments designed to ensure that a party receives justice by providing the trier of fact with an honest picture of events. Pursuant to 42 Pa.C.S.A. § 5941(a), the original defendant had a right to compel the plaintiff to testify as to her recollection of the accident. This testimony was subject to the penalties for perjury. See 18 Pa.C.S.A. § 4902. Accordingly, I would treat it void ab initia, and thus not entitled to the protection afforded by 42 Pa.C.S.A. § 6141. The legislature has indicated that, in interpreting the intention of the General Assembly in the enactment of a statute, there exists the presumption that the Assembly did not intend a result that is absurd or unreasonable, or that it intended to favor a private interest over a public interest. 1 Pa.C.S.A. § 1922(1) & (5). The Assembly in enacting § 6141 obviously wished to give incentive for the extrajudicial resolution of disputes, as opposed to protection, under the guise of settlement, for attempts to violate the integrity of our legal system.

§ 5941. Persons who may be compelled to testify (a) General rule. — Except defendants actually upon trial in a criminal proceeding, any competent witness may be compelled to testify in any matter, civil or criminal; but he may not be compelled to answer any question which, in the opinion of the trial judge, would tend to incriminate him; nor may the neglect or refusal of any defendant, actually upon trial in a criminal proceeding, to offer himself as a witness, be treated as creating any presumption against him, or be adversely referred to by court or counsel during the trial.

A settlement agreement is a contract. Although courts will enforce a wide range and variety of contracts, there are certain things considered unenforceable. Inter alia, we will not enforce contracts for sex, contracts to commit crime, contracts to commit usury, and contracts to subvert justice. A contract to suppress evidence has traditionally been considered unenforceable:

It is quite as objectionable for the suppression of evidence, by paying witnesses to leave the state or otherwise, as . to bargain for its production, and any bargain having this for its object is invalid.

14 S. Williston, A Treatise on the Law of Contracts, § 1716 (3rd Ed.1972) (footnote omitted).

At trial, the lower court conducted a very lengthy side bar concerning the ability of the original defendant to use the offending provision to cross-examine the witness. After not being satisfied by plaintiffs’ and additional defendant’s arguments that the provision was innocuous, it determined that the provision could be utilized to cross-examination. The lower court allowed the following two questions to be asked: (1) Was plaintiff Lucille Hammel’s signature on the document? and (2) Whether, in the document, it says that she and her husband expressly agree not to present any evidence against Mary Theresa Hammel? The lower court allowed these questions under the express condition that the document was not to be referred to as a release. It is pertinent to note that both plaintiffs’ counsel and additional defendant’s counsel denied any knowledge that this provision was contained in the joint tortfeasor release. Neither gave the lower court a satisfactory explanation as to why the language appears in the agreement, and on appeal a satisfactory explanation is still lacking. Faced with the failure of counsel to explain the presence of this language in the provision, I would hold that the lower court did not abuse its inherent discretion in allowing a discrete portion of the agreement to be used to impeach the witness. Although admittedly we have interpreted the language in 42 Pa.C.S.A. § 6141 broadly, it would be unreasonable to stretch its protection to a contractual provision that would be unenforceable due to illegality.

      . The jury awarded no damages to the husband-plaintiff.

      . Kimberly Clark had been named as a defendant in plaintiffs complaint, but a motion for summary judgment in its favor had been granted pre-trial by agreement of the parties.

      . The opinion of the trial court appears at 38 Pa.D. & C.2d 756.

      . The majority cites three cases for the above mentioned rule: Rochester Machine Corp. v. Mulach Steel Corp., 498 Pa. 545, 551, 449 A.2d 1366, 1369 (1982); Manella v. City of Pittsburgh, 334 Pa. 396, 403, 6 A.2d 70, 73 (1939); Rabinowitz v. Silverman, 223 Pa. 139, 144, 72 A. 378, 380 (1909). In Rochester, only two justices affirmed on the basis of the above mentioned rule, three others preferring to affirm on narrower grounds while one justice concurred in the result and one dissented. Although I would adhere to this time-honored (though much questioned) rule until specific indication from our Supreme Court articulating a different rule, the votes in Rochester may indicate discomfort with the rule.

      . I note that the Majority has not asserted there exists a parallel between the way settlement agreements are handled under the Federal Rules of Evidence and under 42 Pa.C.S.A. § 6141. Under the F.R.E. 408, although evidence relating to underlying liability is inadmissible, the rule does not exclude evidence offered for any other purpose, such as proving bias or prejudice. See F.R.E. 408; Louisell and Mueller, Federal Evidence, § 172 at 292. Most courts, however, consider using a settlement agreement for cross-examination purposes to be more prejudicial than probative and under F.R.E. 403 will not admit them. See Louisell and Mueller at 293.

      . No mention is made of 42 Pa.C.S.A. § 6141 in Rochester. This section became effective on 6/27/78. If an Offer to Compromise was governed by § 6141, surely the Supreme Court in Rochester would have indicated this.
      I also note that the majority’s reliance on Rochester may be seen as slightly troubling as only two Justices joined in Part II, and no case in our Commonwealth has subsequently reaffirmed the validity of this rule. However, as the dissenting and concurring Justices made no explicit attempt to question the vitality of the common law rule of an offer to compromise, it remains the law.

      . The policy rationale behind the common law rule for Offer to Compromise appears to differ from the policy embodied in § 6141. The policy behind the common law rule is centered around giving the trier of fact broad access to relevant, non-prejudicial information which would be pertinent to its decision. Cf. Rochester, supra, 498 Pa. at 553, 449 A.2d at 1369-70; Arthur v. James, 28 Pa. 236 (1857). See also, Packel and Poulin, Pennsylvania Evidence, § 408 at 200. However, the policy behind 42 Pa.C.S.A. § 6141 apparently is that the expeditious and extrajudicial settlement of disputes is to be encouraged by holding the completed settlement agreement confidential. Cf. Hatfield, Cipriani, Wilkerson, and Weingrad supra. See also Packel and Poulin, Pennsylvania Evidence, § 408.1 at 201-2.

      . 42 Pa.C.S.A. § 5941(a) reads as follows:


source: Caselaw Access Project

author:
      BROSKY, Judge.
      TAMILIA, Judge,

license: Public Domain

text:
    610 A.2d 988
    William J. VILES, Jr., v. Potjarin Sew Yong VILES, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 28, 1992.
    Filed June 3, 1992.

      Frank L. Kroto, Jr., Erie, for appellant.
    Mary M. Isabella, Pittsburgh, for appellee.
    Before TAMILIA, HUDOCK and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the final order of the trial court which provided for equitable distribution, alimony and counsel fees. Appellant presents the following issues for our review: (1) whether the trial court erred in awarding all liquid assets to appellee and all non-liquid assets to appellant; (2) whether the trial court erred in refusing to award appellant alimony for a period in excess of eighteen months; (3) whether the trial court erred in failing to consider appellant’s reliance upon a letter in which appellee had promised that he would provide for the continuation of appellant’s lifestyle for the duration of her life. For the reasons set forth below, we affirm the equitable distribution order.

Before addressing the merits of appellant’s claims, it is necessary to recount the relevant history of these acrimonious and unnecessarily protracted divorce proceedings. Appellant, Potjarin Sew Yong Viles, and appellee, William Viles, were married in Bangkok, Thailand in December, 1968. One child, Cynthia Viles, was born during the marriage and is now an adult. Throughout the course of their marriage, the parties enjoyed an affluent lifestyle, residing in various Southeast Asian countries, as well as in southern California and Pennsylvania.

In 1983-1984, the parties instituted divorce proceedings while they were domiciled in California. During the pendency of the California divorce action, appellee’s employment required him to transfer to Erie, Pennsylvania where he moved with his daughter. The California divorce action was later discontinued upon mutual agreement of the parties as they attempted a reconciliation. Consequently, appellant joined her husband and daughter in Pennsylvania. The reconciliation was unfortunately unsuccessful and appellee instituted Pennsylvania divorce proceedings in 1986.

The equitable distribution matters were ultimately bifurcated from the divorce action and a divorce decree was entered on November 13, 1990. After numerous hearings and extensive out-of-state discovery proceedings, the master filed his report on November 13, 1990. Appellant filed timely exceptions and supplemental exceptions nunc pro tunc to the master’s recommendations. The trial court reviewed all of the exceptions and affirmed the master’s recommended distribution of marital property. However, the trial court extended the time period in which appellant was to receive alimony and further awarded counsel fees to appellant. Following entry of the court’s final order on April 8,1991 both parties filed timely notices of appeal with this court.

As a preliminary matter, we are compelled to discuss appellant’s violations of our rules of appellate procedure. We begin with a review of the jurisdictional statement which asserts that jurisdiction is conferred upon this court pursuant to 17 Pa.C.S.A. § 211.302. Appellant’s jurisdictional statement is erroneous because the statute referenced therein does not exist. We presume that appellant intended to cite 17 P.S. § 211.302 which did in fact vest jurisdiction over certain classes of appeals in this court. However, the Judiciary Act Repealer Act expressly repealed this statutory provision almost fourteen years ago. 42 Pa.C.S.A. § 20002(a)[1443]. Although 17 P.S. § 211.302 has been repealed, the contents of this statute were substantially reenacted by the Judiciary Act of July 9, 1976, P.L. 586, No. 142, § 2, effective June 27,1978 and are now codified in the Judicial Code, 42 Pa.C.S.A. § 742. See 42 Pa.C.S.A. § 742, historical note. Because it is clear that the equitable distribution order in this case was properly appealable under § 742 of the Judicial Code, we may exercise jurisdiction over this appeal.

In addition to her defective jurisdictional statement, we note that appellant has failed to comply with Pa. R.A.P., Rules 2111(a)(8) and (b), 42 Pa.C.S.A., which require a copy of the lower court opinion to be attached to appellant’s brief. Although the opinions of the lower court and the master’s recommendations are contained in the certified record and have been further supplied to this court by appellee, we remind appellant that it was her responsibility, not that of the opposing party, to provide this court with the appropriate lower court opinions. Appellant has also failed to adhere to the requisites of Rules 2117(a) and (b) (identifying contents and format of appellant’s statement of the case and providing that all argument is to be excluded therefrom). The statement of the case is not in the form specified by the rule and it improperly contains argument. Moreover, this rule requires that the statement of facts must be a closely condensed chronological statement in narrative form. Pa. R.A.P., Rule 2117(a)(4), 42 Pa.C.S.A. (emphasis added). By way of contrast, appellant’s statement covers more than ten pages, an amount which we note is greater than the entire argument section of appellant’s brief. Finally, appellant’s concluding statement violates Rule 2111(a)(7) in that her conclusion is not “short,” and it improperly inserts argument regarding unsubstantiated allegations of ethnic prejudice perpetrated by the lower court. Because none of the above violations insurmountably impedes our ability to review the issues raised by appellant, we shall overlook the procedural irregularities in appellant’s brief and proceed to reach the merits of this appeal.

Appellant first attacks the trial court’s equitable distribution scheme. Before addressing this claim, we note that

[o]ur scope of review in equitable distribution matters is limited. It is well established that absent an abuse of discretion on the part of the trial court, we will not reverse an award of equitable distribution. [In addition,] [w]hen reviewing the record of the proceedings, we are guided by the fact that trial courts have broad equitable powers to effectuate [economic] justice and we will find an abuse of discretion only if the trial court misapplied the law or failed to follow proper legal procedures. [Further,] [t]he finder of fact is entitled to weigh the evidence presented and assess its credibility. The fact finder is free to believe all, part, or none of the evidence and the Superior Court will not disturb the credibility determinations of the court below.

Murphy v. Murphy, 410 Pa.Super. 146, 157-58, 599 A.2d 647, 653 (1991) (citations omitted). See also Lyons v. Lyons, 401 Pa.Super. 271, 276, 585 A.2d 42, 45 (1991) and Zollars v. Zollars, 397 Pa.Super. 204, 207-208, 579 A.2d 1328, 1330 (1990), allocatur denied, 527 Pa. 603, 589 A.2d 693 (1991) (for similar considerations). We will evaluate appellant’s arguments and the equitable distribution scheme adopted by the trial court in accordance with these principles.

The master identified the parties’ marital property and assigned valuations thereto as follows:

California property Arizona property Erie property GTE pension GTE savings plan Erie furnishings California furnishings Decorator items Husband’s jewelry Wife’s jewelry Gun collection Gold coins United Services Gold Share Funds 167,000.00 30.000. 00 58.000. 00 110,833.00 70.348.00 24.140.00 21.600.00 6,000.00 2.650.00 30.000. 00 16,125.00 2.500.00 6,000.00

Master’s Report, dated November 13, 1990, at 16-17. The total value of the above items was calculated to be $545,-196.00. Id. at 17. After evaluating all relevant statutory factors, the master concluded that the marital estate was to be apportioned in a 58/42 ratio, with appellant receiving the larger share of the marital assets. Id. at 12-16. To effectuate this distributional scheme, the master awarded the California and Arizona real estate, the California and Erie home furnishings, the decorator items, and appellant’s jewelry to appellant. Id. at 17. The balance of the marital assets, to-wit, the GTE pension, GTE savings plan, gun collection, coins and gold share funds, were awarded to appellee. Id. at 17-18.

The Erie real property was to be sold with the proceeds divided between appellant and appellee in accordance with the proposed 58/42 distribution ratio. Id. at 17-19. Appellant neither challenges the master’s classification of the above marital assets nor the values attributed to each. Rather, appellant contends that the distribution scheme, as a whole, is unfair because: (1) appellee has allegedly concealed marital assets; (2) appellee earns approximately $100,000.00 per year while appellant earns nothing; and (3) it does not permit her to experience the same standard of living which she had during the parties’ marriage. Appellant also suggests that the equitable distribution scheme is improper because she received only “non-liquid” assets while appellee received all of the “liquid” assets. These arguments will be addressed seriatim.

With respect to the allegedly hidden assets, this issue was addressed ad nauseum at the master’s hearings. We have sedulously examined each page of the voluminous hearing transcripts, as well as the parties’ exhibits, and we are thoroughly convinced that appellee has not concealed any marital assets. As revealed by the hearings and the relevant exhibits, the marital assets which had been in the possession of appellee’s mother while appellee worked overseas were ultimately relinquished to the parties upon their return to the United States and were used by the parties to purchase other marital assets in California and Erie. Master’s Report, at 11-12. Despite having numerous opportunities, appellant failed to demonstrate that the allegedly concealed items actually exist or that they were improperly appropriated by appellee. Id. We therefore find appellant's unsubstantiated and repeated allegations on this subject to be frivolous and wholly lacking in merit.

As for the parties’ respective earning capacities, these factors were expressly taken into account by the master, as evidenced by his recommendation that appellant was to receive the greater share of the marital estate. Id. at 13,16 and 20. The trial court likewise considered these factors and concluded that the master’s proposed distribution was fair and reasonable under the circumstances present in this case. Trial Court Opinion, filed April 8, 1991, at 4. Because the record indicates that the trial court considered the parties’ respective earning capacities, the trial court did not abuse its discretion on this basis.

Appellant’s third contention similarly affords her no relief. Appellant does not refer us to any authority, nor are we aware of any, which mandates the imposition of an equitable distribution scheme that enables a spouse to possess the same standard of living after the divorce that he or she had prior to the divorce. Rather, the Divorce Code only requires the division of marital property in a manner which effectuates economic justice. 23 Pa.C.S.A. § 3102(a)(6) and § 3502(a). Based on our review of the certified record, the trial court’s method of distribution sufficiently achieves the goals of the Divorce Code, and the fact that appellant may or may not be able continue the same luxury lifestyle which she enjoyed during the marriage does not constitute a misapplication of law or abuse of discretion by the trial court.

Appellant’s final claim regarding the equitable distribution order is that the trial court abused its discretion in awarding her all of the allegedly “non-liquid” assets. We find appellant’s argument on this subject to be misplaced. A review of the proposed distribution reveals that neither of the parties truly received “liquid” or cash assets. With the exception of his pension and tax-deferred savings plan, none of appellee’s property is in cash form. Further, appellee’s pension and savings plan are not “liquid” to the extent that appellee cannot sell or transfer these assets. Moreover, appellee’s entitlement to receive his pension or savings is contingent upon his date of retirement. Under these circumstances, appellant’s contention that she received assets of lesser liquidity than appellee is without merit.

Appellant’s second allegation of error relates to the award of alimony. In evaluating questions of this type, our standard of review is limited to a determination of whether the trial court abused its discretion. Edelstein v. Edelstein, 399 Pa.Super. 536, 540, 582 A.2d 1074, 1076 (1990), allocatur denied, 528 Pa. 611, 596 A.2d 157 (1991). We will examine the trial court’s decision in accordance with this standard.

In this case, the master initially recommended that appellant receive alimony in the sum of $1,000.00 per month for a period of six (6) months. The trial court extended this award for an additional year, thus awarding appellant $1,000.00 per month for eighteen (18) months. Trial Court Opinion, filed April 8, 1991, at 5; Trial Court Order, dated April 8,1991, at paragraph 6. Although appellant contends that the trial court failed to consider certain factors in fashioning the alimony award, she chooses to ignore other evidence which necessarily affects her entitlement to alimony and appellee’s ability to pay it.

During the equitable distribution/alimony pendente lite hearings, it was revealed that appellant had received the following property: three “trust deeds” which had a combined worth of $48,924.00; a federal income tax refund in the amount of $6,800.00; and three hundred (300) shares of GTE stock which appellant sold for more than $10,000. N.T. 8/22/88-8/24/88 at 283-284, 286, 287 and 288. Although appellant testified that some of these funds were utilized to preserve the marital property, she also admitted that she: (1) bought a $4,000.00 fur coat; (2) spent $10,-000.00 in Hong Kong and Thailand for custom-made clothing; (3) purchased $2,000.00 in sterling silver and/or silver plate; (4) paid for several trips to Thailand for both herself and her daughter; and (5) that she financed two trips around the United States, including airfare from Thailand, for two members of her family. Id. at 301, 328, 329-332, 335, 352, 353-354 and N.T. 10/19/88 at 79-81. Appellant additionally arranged, by forging appellee’s signature, for the mortgage payments on the California property to be reduced to a minimal amount while she received the excess funds. N.T. 9/5/89 at 74-76. Appellant further disposed of some of the Erie furnishings, her automobile and various pieces of jewelry without appellee’s knowledge or consent. N.T. 6/28/89 at 87-101. Moreover, appellant's actions in prolonging these proceedings has resulted in the dissipation of assets to the extent that appellee was required to pay appellant $5,000.00 for her counsel fees, his own legal fees which exceeded $25,000.00, exclusive of the fees associated with this appeal, and all of the costs of these proceedings which are approximately $17,000.00.

In addition to dissipating or misappropriating marital assets, appellant has provided this court with a myopic and distorted view of the parties’ respective incomes and assets in support of her alimony claim. First, as noted above, appellant repeatedly insists that appellee has hidden assets, which as the record demonstrated, are nonexistent. Appellant similarly argues that appellee has annual earnings in excess of $100,000.00, when in fact his reported income was $85,667.00. N.T. 9/24/90 at 16. Appellant also directs our attention to appellee’s inheritance from his mother’s estate, a factor which was expressly taken into account by the trial court in extending appellant’s alimony. Trial Court Opinion, filed April 8, 1991, at 5. However, appellant disregards her own inheritance in the form of an undisclosed amount of realty which is located in Thailand. N.T. 8/22/88-8/24/88 at 197-198. Appellant further fails to consider the fact that appellee has been solely responsible for the support of the parties’ daughter throughout the pendency of these proceedings, and that he has continued to finance his daughter’s college education. N.T. 6/1/88 at 6-7; N.T. 9/24/90 at 42-43. Moreover, as discussed above, appellee has expended a substantial amount in legal costs, in addition to the alimony pendente lite and other court-ordered payments to appellant, all of which have necessarily drained appellee of some of his alleged assets. When all of the above circumstances are taken into consideration, along with appellant’s educational level, age, health, and the distribution of the marital property, we are unable to agree with appellant that the trial court abused its discretion by refusing to either award appellant a greater amount of alimony or extend the period in which appellant is to receive the alimony.

The third issue raised by appellant relates to an alleged letter from appellee that was sent to appellant’s parents prior to the parties’ marriage. Although a copy of this letter was accepted as an exhibit by the master, the letter is written in oriental characters which this court lacks the ability to correctly translate. However, we note that an alleged translation of the letter, which was apparently performed by appellant, was also accepted by the master and is attached to the letter. Neither the translation nor the letter were certified for accuracy and authenticity. Assuming, for the purpose of our review, that the translation of the letter is accurate and that the letter itself is authentic, we decline to adopt appellant’s suggestion that the letter should be enforced as a pre-nuptial agreement.

We initially observe that the letter does not contain any of the typical elements of a contract, let alone a pre-marital agreement, as it is not signed by both of the parties, does not recite the consideration given in exchange for the agreement, and does not purport to delineate the parties’ respective rights and responsibilities as to property, alimony and/or spousal support or counsel fees in the event that the marriage is terminated. See Hamilton v. Hamilton, 404 Pa.Super. 533, 535, 591 A.2d 720, 721 (1991) (as an example of a pre-marital agreement). Further, the letter was written to appellant’s parents, not appellant. Thus, any promises contained in the letter were made directly to appellant’s parents rather than appellant. Appellant does not contend that she detrimentally relied upon the alleged promises made to her parents nor does she assert that the letter induced her to marry appellant.

More importantly, the letter is devoid of any promise to support appellant for the duration of her life regardless of the parties’ marital status. The letter similarly does not promise that appellee will support appellant in the same type of luxurious lifestyle which previously had been supplied by appellant’s parents. Instead, the letter merely expresses appellee’s intent to make appellant happy and that he desired the approval of appellant’s parents. Such a broad statement simply cannot be construed as a specific agreement to provide any support to appellant, let alone a continuation of her luxurious lifestyle, after the parties’ divorce. Accordingly, the trial court did not abuse its discretion in failing to enforce the letter as a pre-marital agreement.

In sum, we have thoroughly evaluated appellant’s allegations of error in light of the certified record. In conducting this review, we find that appellant has failed to establish that the trial court abused its discretion or misapplied the law in entering the equitable distribution and alimony award. We therefore affirm the order of the lower court.

Order affirmed.

TAMILIA, J., files a concurring and dissenting opinion.

TAMILIA, Judge,

concurring and dissenting.

I concur in so much of the Opinion of the majority which affirms the award of equitable distribution by the trial court. I agree with the appellant that much of the award to her is in fixed assets and thereby limits its utility in providing for her present and immediate foreseeable needs.

Under the circumstances of this case, however, a different division of property is hard to conceive without creating greater hardship on both parties.

I strongly differ in the affirmance of the trial court’s award of alimony in the amount of $1,000 per month for eighteen months. The trial court recognized the award of $1,000 for six months by the Master was totally inadequate and increased the time the award was to run to eighteen months. Under the facts of this case, the award was arbitrary and failed to consider the lifestyle of the parties, the deficits of the wife which could be longstanding if not permanent and provided no direction or guidance whereby the wife could become self-supporting. Merely alleging that the wife has a foreign language skill which might be saleable as a translator does not establish the potential or availability of employment in that regard. While the supporting spouse has no obligation to see that dependent spouse’s lifestyle remains unchanged from that enjoyed during marriage once the divorce decree has been entered, Fexa v. Fexa, 396 Pa.Super. 481, 578 A.2d 1314 (1990), the new emphasis of the Divorce Code in assuring economic justice must consider the needs of a spouse of twenty years who is foreign born with language impediments and no work skills. She may not be abandoned in eighteen months and must be given sufficient assistance and rehabilitation to cause her to be self-supporting if possible. This case requires that alimony be awarded of unlimited duration. Pacella v. Pacella, 342 Pa.Super. 178, 492 A.2d 707 (1985); Hodge v. Hodge, 337 Pa,Super. 151, 486 A.2d 951 (1984). The law as to permanent alimony was substantially changed in 1988 to fulfill the underlying thrust of the code to provide economic justice by mandating that the true need of the spouse be considered rather than impose a limited award to permit the spouse to obtain employment or develop an employable skill. 23 P.S. § 501(c), pursuant to the act of 1980, provided:

(c) Unless the ability of the party seeking the alimony to provide for his or her reasonable needs through employment is substantially diminished by reason of age, physical, mental or emotional condition, custody of minor children, or other compelling impediment to gainful employment, the court in ordering alimony shall limit the duration of the order to a period of time which is reasonable for the purpose of allowing the party seeking alimony to meet his or her reasonable needs by:
(1) obtaining appropriate employment; or
(2) developing an appropriate employable skill.

This section was generally taken to mean (erroneously) that alimony should be time limited and rehabilitative with little consideration given to the true need of the spouse resulting in the general impoverishment of women and enrichment of men resulting from such an application.

The 1988 amendment to the Divorce Code, now contained at 23 Pa.C.S. § 3701(c), provides:

(c) Duration. — The court in ordering alimony shall determine the duration of the order, which may be for a definite or an indefinite period of time which is reasonable under the circumstances.

This shift from a rehabilitative mode to one of need and fundamental justice requires that when there is no evidence that rehabilitation will occur in the foreseeable future, an award indefinite in time is most appropriate. The court’s statement, pursuant to section (d), Statement of reasons, for the limited award does not meet the test for denial of an indefinite award. Finding that appellant could work as an interpreter because of her skill in the Thai language, without consideration of the demand for such a skill or her equally necessary skill in English required to make it a viable option, simply avoided the requirement of the act.

An indefinite Order will assure some security to the appellant in attempting to reorder her life. The amount of the Order is not so great that she would be encouraged to do nothing to advance herself. The court, under section (e), Modification and termination, has sufficient control over the duration of the Order to make necessary changes as circumstances allow. I would remand with direction to the trial court to make the duration of the Order indefinite and explore further the appellant’s potential for becoming self-sufficient.

      . In 1988, appellee was transferred to St. Petersburg, Florida where he now resides. Appellant, however, remained in the parties’ Erie residence.

      . Appellee filed appeals docketed at Nos. 00917 and 01432 Pittsburgh 1991; appellant filed a cross-appeal that was docketed at No. 00918 Pittsburgh 1991. The appeals instituted by appellee were later discontinued, and therefore, only appellant’s appeal docketed at No. 00918 is currently before this court. After appellant’s notice of appeal had been filed, appellant’s trial counsel, David Hunter, Esq., sought permission to withdraw from his representation of appellant. Counsel's petition was granted and appellant was instructed to obtain new counsel or proceed pro se. Appellant subsequently obtained new appellate counsel, Mary Margaret Isabella, Esq., who has entered her appearance and acted on appellant's behalf. In addition, we observe that appellant filed a motion to proceed on the original record. Appellant’s motion was dismissed as moot by this court in a per curiam order entered September 20, 1991. Appellant renewed her motion to proceed on the original record, and appellee filed a motion to quash appellant’s second motion. By per curiam order entered October 28, 1991, this court granted appellant’s motion to proceed on the original record and denied appellee’s motion to quash.

        . Appellee discusses these violations in his brief and has requested that we quash the appeal on this basis. Appellee’s Brief, at 12-14. Although we agree with appellee that the violations are egregious and inexcusable, we decline to quash the appeal because the errors do not substantially hamper our ability to engage in effective and meaningful appellate review. See Williamson v. Williamson, 402 Pa.Super. 276, 289, 586 A.2d 967, 973 (1991) (in which we declined to dismiss the appeal because of procedural defects).

      . The master was cognizant of the fact that two of the parties’ parcels of real property are encumbered by mortgages and/or other debts.

        Consequently, the master assigned net rather than gross values to these particular properties.

      . The value of appellee’s pension was calculated using the immediate offset method. Appellant’s Exhibit MM (actuarial report prepared by Randall Luzader).

      . The trust deeds were actually second or third mortgages on real property held by the parties in California. The trust deeds were valued at $15,015.00, $10,374.00 and $22,535.00 respectively. N.T. 8/22/88-8/24/88 at 283-284 and 287.

      . At the time of these hearings, the tenant of the California property paid approximately $1,100.00 per month. The rental receipts were then applied by the bank towards the reduction of the mortgage debt. Appellant, however, had the mortgage payments reduced to approximately $150.00 per month for a six-month period. Thus, appellant received the balance of approximately $950.00 per month while the reduction was in effect.
      At a subsequent hearing, it was later revealed that the rental payments on the California property had been increased to approximately $1,400 per month. N.T. 9/24/90 at 8-9. Out of these funds, $1,150 was applied to reduce the mortgage while the remaining $250.00 was placed in a separate account listed under the name of appellant’s sister. Id. at 9 and 86. It thus appears that appellant has access to the additional funds which have been accruing in this account.

      . The trial court and the master directed appellant to reimburse appellee for approximately $9,000.00 of these costs. Trial Court Order, dated April 8, 1991, at paragraph 5(f).

      . Although appellant indicated that it was not the custom in oriental families to sell their property, the fact that appellant owns the land and the value thereof, which appellant did not provide to the court, must nevertheless be considered as one of the elements in determining appellant’s entitlement to alimony. 23 Pa.C.S.A. § 3701(b)(4).

      . The alleged translation, appears as follows:
      Dear Mr. and Mrs. Kwok:
      Please forgive me in writing this letter to you for such an importance matter. Because I cannot speak neither Thai nor Chinesel My name is William J. Viles, Jr., 38 years old American. I’m a publishing manager at GTE Directory Co. in Honolulu. I’ve been working in this co. for 11 yrs. My future is excellent. I’m writing this letter to ask for your approval to mary Sewyong. Kindly do not worry as her happiness is my only concern I’ll not cause her any sorrow, but only happiness. Her wishes is my command. I sincerely hope that you’ll approve our marriage, and am looking forward to hearing from you soon.
      Respectfully,
      /s/ William J. Viles, Jr.
      Appellant’s Exhibit 50A (translation).


author: HESTER, Judge:

text:
    610 A.2d 995
    In re ADOPTION Of J.M.E. a/k/a A.K.E. Appeal of M. and P.Y.
    Superior Court of Pennsylvania.
    Submitted March 12, 1992.
    Filed June 3, 1992.
    Reargument Denied Aug. 4, 1992.

      Thomas L. Kearney, York, for appellant.
    Scott A. Beaverson, York, for appellee.
    John G. Bergdoll, York, for R.C.E. and B.M.F., participating parties.
    Before POPOVICH, HUDOCK and HESTER, JJ.
   HESTER, Judge:

Maynard and Patricia Yost instituted this action by filing, on February 7, 1990, a report of intention to adopt J.M.E. a/k/a A.K.E. (hereinafter Albert), the natural son of Kathy K., and a petition to involuntarily terminate the parental rights of Kathy K. Albert, born June 25, 1988, has been raised by the Yosts since he was six weeks old. He now is nearly four years old. Appellee B.M.F. (hereinafter Bonnie), Albert’s maternal aunt, and appellee R.C.E. (hereinafter Robert), the child’s maternal grandfather, filed preliminary objections asserting that the Yosts lacked standing to file a petition for termination of parental rights. A hearing was held on April 10, 1991, following which the trial court granted the preliminary objections and dismissed the Yosts’ petition to terminate parental rights and petition to adopt on August 21, 1991. This appeal followed.

The trial court, while not citing case law in support, determined that the Yosts lacked standing to maintain their petition to terminate parental rights. Specifically, the court concluded that the Yosts did not stand in loco parentis to the child. We are constrained to disagree and reverse.

Initially, we examine our scope of review. “When sustaining a preliminary objection would result in dismissal of an action, the objection should be sustained only in cases which are free from doubt.” Engle v. Engle, 412 Pa.Super. 425, 430, 603 A.2d 654, 657 (1992). Further, we review the evidence in the light most favorable to the non-moving party. Id.

The following background information is essential to an understanding of the present controversy. Kathy K. is the mentally ill daughter of eighty-year-old appellee Robert and sister of appellee Bonnie. On June 25, 1988, Kathy K. gave birth to her third child, Albert, in Louisiana. The identity of Albert’s father is not known. In May, 1988, Charity Hospital in New Orleans contacted Bonnie and informed her that Kathy K. was a patient there, that she was pregnant and due to give birth in mid-June, and that she “was in denial of her pregnancy.” Notes of Testimony (“N.T.”), 4/10/91, at 52. When Albert was born, Bonnie flew to New Orleans, took custody of Albert, and flew back to York, Pennsylvania.

For the first six weeks of his life, Albert was cared for by Bonnie and a friend. When the friend became unavailable, Bonnie, who is employed and the custodial parent of her own four children, consulted her father, Robert, concerning arrangements for Albert’s care. Robert already was raising Kathy K.’s older son, while Kathy K.’s brother, Richard, was raising Kathy K.’s daughter. Robert suggested that they contact appellants about raising Albert, as the Yosts previously had offered to help him with the older children before Albert was born. Id. at 7, 57. All of the parties live within walking distance of each other. Id. at 50-51, 66. Appellants agreed to raise Albert, who began residing with them when he was six weeks old. As stated above, Albert is now almost four years old. He has resided with appellants continuously and calls them “mom” and “dad.” Id. at 75.

Our focus of inquiry in this case is on the language of § 2512(a) of the Adoption Act, 23 P.C.S. §§ 2101 et seq. That section sets forth who may file a petition for involuntary termination of parental rights.

§ 2512. Petition for involuntary termination (a) Who may file. — A petition to terminate parental rights with respect to a child under the age of 18 years may be filed by any of the following:
(1) Either parent when termination is sought with respect to the other parent.
(2) An agency.
(3) The individual having custody or standing in loco parentis to the child and who has filed a report of intention to adopt required by section 2531 (relating to report of intention to adopt).

23 P.C.S. § 2512(a). It is clear that neither subsection (1) or (2) apply instantly. As to subsection (3), we previously have held that custody, as that term is used in § 2512(a), refers to legal custody, not merely physical custody. In re Adoption of J.F., 392 Pa.Super. 39, 572 A.2d 223 (1990). Testimony at the April 10, 1991 hearing established that Kathy K., Albert’s natural mother, had transferred legal custody to Bonnie in August, 1988. N.T., 4/10/91, at 62-63. Thus, the first part of § 2512(a)(3) is inapplicable to appellants. Therefore, the focus for the trial court, and our inquiry now, is whether appellants have standing in loco parentis.

The trial court determined that appellants, in effect, were foster parents who therefore lacked standing to maintain the petition to terminate parental rights. This determination by the trial court is an obvious, sub silentio reliance upon our decision in In re Adoption of Crystal D.R., 331 Pa.Super. 501, 480 A.2d 1146 (1984). In that case, we held that foster parents, who have been awarded physical custody of a child by an agency which has obtained legal custody of the child, do not have standing to petition to terminate the rights of the natural parents of the child. We believe Crystal D.R. is distinguishable from the present case. There, we examined the following relevant language in Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1977):

Pennsylvania courts recognize that a person may “put himself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal adoption. This status, known as ‘in loco parentis’ embodies two ideas; first, the assumption of a parental status, and second, the discharge of parental duties.” Commonwealth ex rel. Morgan v. Smith, 429 Pa. 561, 565, 241 A.2d 531, 533 (1968). “The rights and liabilities arising out of that relation are, as the words imply, exactly the same as between parent and child.”

In re Crystal D.R., supra, 331 Pa.Super. at 505, 480 A.2d at 1148 (citations omitted). We stated in Crystal D.R. that while foster parents are concerned with a child’s day-to-day needs by virtue of having physical custody of the child, “it does not follow from this fact that they thereby assume a status of in loco parentis to the child, distinguished by ‘rights and liabilities ... exactly the same as between parent and child.’ ” Id.

In analyzing whether foster parents stand in loco parentis to the foster child for purposes of 23 P.C.S. § 2512, this court noted the significant role assumed by the agency which places the child. We stated that it is impractical for an agency to care for a child, thus it transfers physical custody to foster parents, while remaining responsible for the care of the child. Moreover, we noted that the agency could regain physical custody and terminate the foster parent's relationship to the child whenever the child’s interests require it to do so. Thus, we examined the division of responsibility for the child’s welfare among three parties: the child’s natural parents, the agency, and the foster parents. We found significant the fact that the agency supervises the performance of the foster parents: 1) by approving the foster home, 35 Pa.Code § 3130.39; 2) by arranging payment for the foster parents for providing care for the child, 42 Pa.C.S. § 6306; 62 P.S. § 704.1; 3) by enforcing regulations governing the child’s health, safety, and discipline, 35 Pa.Code §§ 3700.51, 3700.67, and 3700.63; and 4) in appropriate circumstances, by removing the child from the foster home, 35 Pa.Code § 3700.73. We concluded that the Legislature could not have intended to include foster parents when it provided in 23 P.C.S. § 2512(a) that an individual standing in loco parentis to the child could file a petition to terminate parental rights to the child. Rather, we concluded that the relationship of the foster parents to the child “is a subordinate relationship, supervised by the agency, and in turn by the court, responsible for placing the child.” In re Crystal D.R., supra, 331 Pa.Super. at 511, 480 A.2d at 1151-52.

A review of the notes of testimony from the April 10, 1991 hearing compels the conclusion, contrary to appellees’ urging, that appellants are not foster parents of Albert, as that term was used by this court in In re Crystal D.R., supra. Rather, appellants’ designation as “foster parents” simply was a term of art used by appellees. N.T., 4/10/91, at 59. Regardless of how appellants are described by appellees, we must focus upon how appellants function in relation to Albert.

When appellees approached appellants in August, 1988, Albert was a six-week-old infant. They asked appellants to raise the child “until he’s grown,” stated that appellants were to be “his parents,” and that Albert was to call appellants “mom” and “dad.” N.T., 4/10/91, at 9, 74. While Albert does visit appellees, appellants retained the right to grant or decline visitation based upon their schedule. Id. at 13, 81. Appellees never paid appellants for raising Albert, although Bonnie testified that she bought baby food and juice a few times. Id. at 13, 82.

Most significant, however, is appellees’ intent that the placement of Albert with appellants was to be permanent. Mrs. Yost testified that Bonnie stated that Albert never would be removed from their custody and that they should raise Albert “until he’s grown.” Id. at 9, 11, 20. Bonnie herself testified that she told appellants that they were to raise Albert, and she acknowledged that appellants would thereby make decisions on his behalf. Id. at 74-75. Appellants have raised Albert in their religion, even though appellees and their families are Quakers and appellants are not. Id. at 13, 28, 58. Appellants vacationed in California with Albert in 1990 and did not seek anyone’s permission to do so. Id. at 15.

It is clear that appellants are not foster parents as that term was used in In re Crystal D.R., supra. There is no agency responsible for Albert’s care, no agency approved appellants’ home, no agency enforces regulations pertinent to Albert’s health, safety, and discipline, and no agency is ready to remove Albert from appellants’ home. While testimony established that appellees and certain others have referred to appellants as Albert’s foster parents, we agree with the trial court that this fact is of no moment “because of the not universally familiar technical meaning of that term.” Trial court opinion, 11/15/91, at 2.

In In re Adoption of S.C.P., 364 Pa.Super. 257, 527 A.2d 1052 (1987), we considered whether former foster parents had standing to seek adoption of their former foster child without the written consent of the child welfare agency which served as that child’s legal custodian. Again, that case involved foster parents as that term was used in Crystal D.R. Moreover, this court found it significant that the foster parents in Adoption of S.C.P. “knew that they were embarking on a temporary relationship,” and because of this, they “should not be permitted to circumvent the ephemeral expectations upon which the foster parent concept was designed.” In re Adoption of S.C.P., supra, 364 Pa.Super. at 261, 527 A.2d at 1054; see also Priester v. Fayette County Children and Youth Services, 354 Pa.Super. 562, 565, 512 A.2d 683, 684 (1986) (“By its very nature, the foster parent/foster child relationship ‘implies a warning against any deep emotional involvement with the child since under the given insecure circumstances this would be judged excessive.’ ”). The intent of the parties herein, again, is in marked contrast to the expectations present in a foster parent relationship as presented in S.C.P. In the instant case, all parties intended that Albert’s placement with appellants would be permanent; indeed, the expectation clearly is that the Yosts are to be the only “parents” Albert would ever know.

We believe it is clear, then, that appellants are not foster parents as that term has been used in relevant case law and that under the particular facts of this case, appellants stand in loco parentis to Albert for purposes of 23 Pa.C.S. § 2512. We believe that the instant situation is precisely what the legislature contemplated when it included the phrase “in loco parentis” in the statute. We further note that it is presumed that every word of a statute is intended for some purpose and accordingly must be given effect. 1 Pa.C.S. § 1921; Commonwealth v. Lobiondo, 501 Pa. 599, 462 A.2d 662 (1983).

We believe this case has subtle similarities to Wilson v. Wilson, 406 Pa.Super. 473, 594 A.2d 717 (1991), although we acknowledge that there also are significant differences. In Wilson, an appeal was taken from an order dismissing Mr. Wilson’s petition for partial custody of a child, of no blood relation, who had been placed in his care before he and his wife separated. In that case, the natural mother, who was a distant relative of Mrs. Willson, gave the Wilsons the child to raise. Dismissal was premised on the fact that Mr. Wilson had no legal standing in relation to the child. The following language, while not controlling due to the differing nature of the cases, is instructive:

The trial court’s decision to curtail the hearing without proceeding to hear [Mr. Wilson’s] claim, by dismissing it as being without standing, was premature and leaves the child vulnerable____
The broad inquiry mandated by law in custody proceedings requires the trial court to ascertain the true nature of the natural mother’s placement of the child with the parties here; the fitness of both parties, the basis for determining the in loco parentis status of [Mr. Wilson]; who is the primary caretaker, whether it be appellee or her mother; and whether, ultimately, Bucks County CYS should be involved in planning for the child in light of the dubious legal status of the placement with the Wilsons.

Id., 406 Pa.Super. at 477-478, 594 A.2d at 719-720 (footnote omitted).

Thus, we conclude that appellants stand in loco parentis to Albert for the purpose of maintaining their petition to terminate the parental rights of his natural mother. We note that our decision in no way affects the merits of whether the petition should be granted. Mitch v. Bucks County Children & Youth Services, 383 Pa.Super. 42, 52 n. 7, 556 A.2d 419, 424 n. 7 (1989) (emphasis in original) (citation omitted) (“the relative merits of a petition in no way affect a party’s standing to file it”).

Order reversed and remanded for proceedings consistent with this opinion.

      . Both parties testified that appellants have a medical assistance card for Albert. N.T., 4/10/91, at 16-17.


author: CIRILLO, Judge: McEWEN, Judge,

text:
    610 A.2d 999
    Thomas GRADWELL and Emma Gradwell, Luther T. Strausser, Appellants, v. Luther D. STRAUSSER and Emma A. Strausser.
    Superior Court of Pennsylvania.
    Argued April 8, 1992.
    Filed June 3, 1992.

      Chester C. Corse, Jr., Pottsville, for appellants.
    K. Tucker Landon, Pottsville, for appellee.
    Before McEWEN, CIRILLO and CERCONE, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Schuylkill County dismissing Appellants’ complaint for custody. We affirm.

Appellants, Thomas Gradwell and his wife, Emma Grad-well, the maternal grandparents (“grandparents”) of Lynn Anne Strausser, sought legal custody of Lynn Anne, presently age 15. The grandparents instituted this action against Luther D. Strausser and Emma A. Strausser, Lynn Anne’s natural parents. The parents filed an answer with new matter, requesting legal and physical custody of Lynn Anne.

At the time this action was commenced, physical custody of the Lynn Anne was with the paternal grandfather, Luther T. Strausser (“Luke”). Legal custody was with the parents. The parents also had the right to partial custody and visitation. This custody arrangement was pursuant to a temporary court order entered on August 2, 1990.

On August 29, 1990, following a hearing, the court entered a second temporary order vacating the prior order and transferring legal and physical custody of Lynn Anne to her parents pending further court action. On February 19, 1991, the grandparents and Luke filed a motion requesting that testimony be taken and that the agency rendering family counseling to the parties report on the parents’ status. See 23 Pa.C.S. § 5305. A conference was held, and on September 10, 1991 the court entered an order granting the parents’ motion to dismiss the proceedings. This appeal followed. Appellants, the maternal grandparents, and Luke, the paternal grandfather, raise the following issues:

1. Do maternal and paternal grandparents have standing to institute a civil action seeking custody, partial custody, or visitation with a minor child?
2. Did the trial court err in denying paternal grandfather partial custody or visitation with the minor child where the grandfather and stood in loco parentis to the minor and they had lived together for over a twelve month period?
3. Assuming but not conceding the trial court’s ruling on standing is correct, did the trial court err in not transferring this matter to the juvenile section of the court?

Persons other than natural parents are “third parties” for purposes of custody disputes. In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977). See also Commonwealth ex rel. Witherspoon v. Witherspoon, 252 Pa.Super. 589, 384 A.2d 936 (1978). “Although the best interest of the child remains of paramount concern, the parent has ‘a prima facie right to custody,’ which will be forfeited only if ‘convincing reasons’ appear that the child’s best interest will be served by an award to the third party____the evidentiary scale is tipped, and tipped hard, to the parents’ side[.]” Hernandez, 249 Pa.Super. at 286, 376 A.2d at 654. The courts have noted the distinction between non-related third parties and related third parties, but have declined to draw a distinction in the burden of proof to each. Id., 249 Pa.Superior Ct. at 287, 376 A.2d at 654. See also Commonwealth ex rel. Patricia L.F. v. Malbert J.F., 278 Pa.Super. 343, 420 A.2d 572 (1980).

Absent a prima facie right to custody, a third party lacks standing to seek custody as against the natural parents. Helsel v. Blair County Children and Youth Services, 359 Pa.Super. 487, 519 A.2d 456 (1986). If we were to grant standing to third parties under these circumstances,

a parent’s prima facie right to custody could thus be challenged without a clear and convincing showing that the child is not receiving proper parental care. This is not appropriate when the party seeking custody lacks a legal basis to claim custody equal with that of a parent. It is an unacceptable means of circumventing the procedures established to determine the necessity of forfeiting parental rights.

Id., 249 Pa.Superior Ct. at 496, 519 A.2d at 460. See also Weber v. Weber, 362 Pa.Super. 262, 524 A.2d 498 (1987); Herron v. Seizak, 321 Pa.Super. 466, 468 A.2d 803 (1983).

The appropriate manner for a third party to challenge child custody is through dependency proceedings, set forth in the Judicial Code. See 42 Pa.C.S. § 6301 et seq.; Helsel, supra. It is only after a child is found dependent that a court will engage in custody proceedings where the standard is the best interests of the child. Helsel, supra; see also Bishop v. Piller, 399 Pa.Super. 52, 581 A.2d 670 (1990). Prior to that, the burden is on the party seeking to take the child from the parents to show by clear and convincing evidence that the child is dependent. 42 Pa.C.S. § 6341(c); Helsel, supra. See also Ellerbe v. Hooks, 490 Pa. 363, 367, 416 A.2d 512, 513 (1980); Commonwealth ex rel. Kraus v. Kraus, 185 Pa.Super. 167, 170, 138 A.2d 225, 226-27 (1958); cf. In re Miller, 380 Pa.Super. 423, 552 A.2d 261 (1988) (under Juvenile Act, child may be adjudicated dependent when it is established by clear and convincing evidence that child is without proper parental care and such care is not immediately available). Unless the parents’ prima facie right to custody is successfully overcome, this court cannot confer standing on third parties to interfere with the parent/child relationship. See 42 Pa.C.S. §§ 6301 et seq.

In Palmer v. Tokarek, 279 Pa.Super. 458, 421 A.2d 289 (1980), this court affirmed an award of custody to a father in a contest with the maternal grandparents. The child’s parents were divorced. The father was awarded custody despite the fact that his seven-year old son had lived almost his entire life with the maternal grandparents, had been well cared for by them and wished to remain with them. The trial court had stated in its opinion that “if the parties stood in equal position” it would have awarded custody to grandparents. Id., 279 Pa.Superior Ct. at 465, 421 A.2d at 293.

Palmer graphically illustrates the rationale supporting the exacting standard of proof. The courts, in order to promote and protect the policy of protecting the parent/child relationship, will hesitate to interfere absent clear evidence that the child’s welfare so demands. Only then may the courts intrude upon the parents’ natural and primary right to rear and care for their child. Cf Snarski v. Krincek, 372 Pa.Super. 58, 538 A.2d 1348 (1988) (parents divorced; child lived with maternal grandparents and mother for six and one-half of his eight years; after mother died, father sought custody; the court awarded custody to the maternal grandparents, subject to father’s right to partial custody).

A third party has been permitted to maintain an action where that party stands in loco parentis, that is, where he or she has “assumed obligations incident to the parental relationship.” See, e.g., Commonwealth ex rel. Patricia L.F. v. Malbert J.F., 278 Pa.Super. 343, 420 A.2d 572 (1980); Commonwealth ex rel. Gorto v. Gorto, 298 Pa.Super. 509, 444 A.2d 1299 (1982); Jones v. Stone, 343 Pa.Super. 416, 495 A.2d 205 (1985); Burke v. Pope, 366 Pa.Super. 488, 531 A.2d 782 (1987). The rights and obligations arising out of that relationship are exactly the same as between parent and child. Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1977).

Luke argues that he should be permitted to maintain this action because he stands in loco parentis with respect to Lynn Anne. Specifically, Luke contends that he has resided with Lynn Anne for a length of time and, therefore, he has overcome the natural parents’ prima facie right to custody. We disagree.

The phrase “in loco parentis” refers to a person who puts himself in the situation of assuming the obligations incident to the parental relationship without going through the formality of a legal adoption. The status of “in loco parentis” embodies two ideas: first, the assumption of a parental status, and second, the discharge of parental duties.

Commonwealth ex rel. Morgan v. Smith, 429 Pa. 561, 565, 241 A.2d 531, 533 (1968). The trial court found that Luke had resided with Lynn Anne and her parents for almost two years. Thereafter, Lynn Anne resided with Luke, without her parents, for a period of three months. Lynn Anne and Luke evidently had a very warm and caring relationship. Lynn Anne stated that she preferred Luke’s supervision over that of her parents, and stated that she would rather live with her grandparents than with her parents. Lynn Anne characterized her parents as more rigid in their discipline than Luke or her maternal grandparents.

The level of discipline is doubtless a strong consideration to a child in determining a preference. This is especially true during adolescent years when the child experiments with independence from his or her parents. A child’s stated preference to live with a grandparent, however, cannot outweigh the parents’ prima facie right to custody. Palmer, supra. Without more, a child’s preference and the fact that the child and grandparent resided together for a period of time is insufficient to support a finding that Luke stood in loco parentis and has overcome the parents’ prima facie right to custody. A third party cannot place himself in loco parentis status in defiance of the parents’ wishes and the parent/child relationship.

Sections 5311, 5312 and 5313 of the Domestic Relations Code provide grandparents or great-grandparents with a right of action for partial custody or visitation under certain circumstances — when a parent is deceased, 23 Pa. C.S. § 5311, when the parents are separated or divorced, 23 Pa.C.S. § 5312, or when a child has resided with his or her grandparents for a period of twelve months or more and is thereafter removed by the parents, 23 Pa.C.S. § 5313. Under these conditions, the grandparents may petition for an order granting reasonable partial custody or visitation rights, or both. “The court shall grant the petition if it finds that [partial custody or] visitation rights would be in the best interest of the child and would not interfere with the parent-child relationship.” Id. See Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 328, 421 A.2d 157, 161 (1980); see also Altus-Baumhor v. Baumhor, 407 Pa.Super. 276, 595 A.2d 1147 (1991).

Luke maintains that he has acquired in loco parentis status and has overcome the parents’ prima facie right to custody because he has met the statutory period of residing with his granddaughter. 23 Pa.C.S. § 5313. This argument confuses the status of in loco parentis, which may enable a third party to maintain a custody action, with section 5313 of the Domestic Relations Code, which pertains to partial custody or visitation rights of grandparents and great-grandparents.

Section 5313 provides:
If an unmarried child has resided with his grandparents or great-grandparents for a period of 12 months or more and is subsequently removed from the home by his parents, the grandparents or great-grandparents may petition the court for an order granting them reasonable partial custody or visitation rights, or both, to the child. The court shall grant the petition if it finds that visitation rights would be in the best interest of the child and would not interfere with the parent-child relationship.

23 Pa.C.S. § 5313.

Luke misapprehends both the purpose and application of the statute. Section 5313 does not contemplate overcoming the parents’ prima facie right to custody or providing a presumption of in loco parentis status. The statute provides a right of action only for partial custody or visitation under certain circumstances. The legislature intended to assure “continuing contact of the child or children with grandparents when a parent is deceased, divorced, or separated.” 23 Pa.C.S. § 5301. The statute was enacted to protect against estrangement that might occur after one parent dies, or after the parents separate or divorce and custody of the child is with one parent, or after the child has lived with the grandparents for a significant period of time and is removed by the parents. See, e.g., Commonwealth ex rel. Zaffarano v. Genaro, 500 Pa. 256, 455 A.2d 1180 (1983) (mother deceased); Bucci v. Bucci, 351 Pa.Super. 457, 506 A.2d 438 (1986) (father serving prison term; court stated marriage was “dissolved” and granted paternal grandparents’ petition for visitation); Suroviec v. Mitchell, 347 Pa.Super. 399, 500 A.2d 894 (1985) (children had resided with maternal grandparents for three years before mother’s death; grandparents petition for visitation granted); Palmer v. Tokarek, 279 Pa.Super. 458, 421 A.2d 289 (1980) (parents divorced); Johnson v. Pinder, 217 Pa.Super. 180, 269 A.2d 511 (1970) (mother deceased); Commonwealth ex rel. Insalaco v. Delconte, 201 Pa.Super. 354, 192 A.2d 750 (1963) (mother deceased); Commonwealth ex rel. Sabath v. Mendelson, 187 Pa.Super. 73, 143 A.2d 665 (1958) (mother deceased).

The statutory rights created under section 5311-5313 provide a means for grandparents or great-grandparents on the non-custodial side to guard against potential estrangement. The statute, however, speaks to partial custody or visitation; it does not provide a right of action for custody. We find, therefore, that section 5313 is not applicable to the matter before us. The complaint, though captioned “Complaint for Visitation,” sought physical and legal custody in the prayer for relief. The trial judge disposed of this matter as a custody dispute, and consequently the appellants have argued the case on appeal as such.

Unless dependency proceedings are initiated, 42 Pa.C.S. §§ 6351, 6352, or the parents rights are involuntarily terminated, 23 Pa.C.S. § 2511, or the child is abused, 23 Pa.C.S. § 6301 et seq., or the grandparents are seeking partial custody or visitation rights and meet the statutory requirements of 23Pa.C.S. §§ 5311-5313, we are powerless to interfere with this intact family. Cf Herron v. Seizak, 321 Pa.Super. 466, 470, 468 A.2d 803, 805 (1983) (“[A]ppellants ... would have the court direct parents, both of whom have chosen not to have their children visit the grandparents, to permit such visitation. Nothing in the case or statutory law legitimizes such an intrusion by the courts into family life.”).

In Herron, supra, the court interpreted the predecessor act to section 5313, the Custody and Grandparents Visitation Act, in a visitation matter. In Herron, both parents were alive, the parents were not separated or divorced, and they lived together with the child. The court stated:

The “Custody and Grandparents Visitation Act” provides visitation rights to grandparents upon a finding by the court that visitation would be in the best interests of the child. The Act provides this right only in three circumstances: (1) when a parent is deceased; (2) when parents’ marriage is dissolved; and (3) when the child has resided with grandparents for a period of twelve months or more.

Herron, 321 Pa.Super. at 469, 468 A.2d at 805. The court held that grandparents do not have standing to seek partial custody or visitation, over the parents’ objection, unless they come within the purview of the Grandparents Visitation Act. Further, a court has no power to order grandparent visitation where both parents are alive, reside together with the child, and object to visitation. Id., 321 Pa.Superior Ct. at 468, 468 A.2d at 804; see also Weber v. Weber, 362 Pa.Super. 262, 524 A.2d 498 (1987) (absent statutory authority, an adult sister does not have standing to bring an action for partial custody of a minor child over the objections of the minor child’s parents).

As we noted above, the trial court disposed of this case as a custody matter. The court properly determined that the appellants had no standing to seek custody of the child, and we therefore affirm the trial court’s order. It does not appear, however, that the matters of partial custody or visitation were addressed, despite the captioning of the appellants’ complaint. In our estimation, further proceedings under section 5313 would prove fruitless, and it would therefore be in the child’s best interest to resolve these matters by amicable agreement.

Order dismissing complaint affirmed.

McEWEN, J., files a dissenting statement.

McEWEN, Judge,

dissenting:

While the author of the majority Opinion has provided a persuasive expression of view, I am compelled to a differing, conclusion. Since Lynn Anne was not in the physical custody of her parents, but in the physical custody of her paternal grandfather, appellant Luther T. Strausser, on July 23, 1990, the date when her maternal grandparents, appellants Thomas and Emma Gradwell, instituted this action, and since appellant Luther T. Strausser retained physical custody of Lynn Anne pursuant to court orders of July 23, 1990, and August 2, 1990, I am not persuaded that appellants lacked standing. See: Snarski v. Krincek, 372 Pa.Super. 58, 538 A.2d 1348 (1988). Thus, I would remand the case to the trial court for the conduct of such proceedings as will enable the trial court to determine what custody arrangement will now serve the best interest of Lynn Anne.

      . The court ordered the plaintiffs to join Luther as a party to the action. See Pa.RX.P. 1915.6. Rule 1915.6 incorporates the provision of the Uniform Child Custody Jurisdiction Act, 42 Pa.C.S. § 5351, which requires a person not a party who has physical custody of the child to be joined as a party and notified of the pending action.

      . Section 5305 of the Domestic Relations Code provides that the court may require the parents to attend counseling sessions prior to a custody determination. 23 Pa.C.S. § 5305.

      . The prior law, The Custody and Grandparents Visitation Act, Act of November 5, 1981, P.L. 322, No. 115 § 2; 23 P.S. § 1001 et seq., was repealed and essentially reenacted in the Domestic Relations Code, 23 Pa.C.S. §§ 5301 et seq.

      . The terms "partial custody” and “visitation” are often used interchangeably. Each term, however, has a distinct legal meaning. See 23 Pa.C.S. § 5302. Partial custody refers to the right to take possession of a child away from the custodial person for a specified period of time; visitation is the right to visit with a child without physically removing the child from the custodian. Id.; Commonwealth ex rel. Zaffarano v. Genaro, 500 Pa. 256, 259, 455 A.2d 1180, 1182 (1983); Scott v. Scott, 240 Pa.Super. 65, 368 A.2d 288 (1976) (Spaeth, J., concurring). See also Note, Visitation Rights of a Grandparent Over the Objection of a Parent; The Best Interest of the Child, 15 J.Fam.L. 51 (1976-77).

      . Although not stated in the declared purpose of this chapter of the Domestic Relation Code, we do not construe this statement to preclude a grandparent or great-grandparent from seeking relief under section 5313 in a situation, like the one before us, where the parents are both alive, and are neither separate nor divorced. See note 6, infra; cf. Bucci v. Bucci, 351 Pa.Super. 457, 506 A.2d 438 (1986) (father serving a prison sentence).

      . We note that our research has revealed no cases in which section 5313 or its predecessor, 23 P.S. § 1014, has been applied where the. parents are both alive and they are neither separated nor divorced. See Bishop v. Piller, 399 Pa.Super. 52, 581 A.2d 670 (1990); Snarski v. Krincek, 372 Pa.Super. 58, 538 A.2d 1348 (1988); Suroviec, supra; Ferencak v. Moore, 300 Pa.Super. 28, 445 A.2d 1282 (1982). Cf. Bucci v. Bucci, 351 Pa.Super. 457, 506 A.2d 438 (1986); Obviously, the likelihood of potential estrangement in the grandparent/grandchild relationship is decreased under these circumstances, and increased where one parent dies or if the parents separate or divorce.

      . The trial court found that Luke had not met the statutory time period under section 5313.