author: ROWLEY, President Judge: DEL SOLE, Judge,

text:
    653 A.2d 21
    Noreen K. GARNEY, Appellant, v. ESTATE OF Leslie HAIN.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1994.
    Filed Jan. 20, 1995.
    Cara A. Boyanowski, Carlisle, for appellant.
    Allen E. Hench, Newport, for appellee.
    Before ROWLEY, President Judge, and CIRILLO and DEL SOLE, JJ.
   ROWLEY, President Judge:

Appellant Noreen K. Garney appeals from an order dismissing her complaint for support filed against the estate of Leslie Hain, the deceased father of her three children. The sole issue raised for our consideration is whether the estate of a deceased parent, under Pennsylvania law, may be required to provide child support in the absence of a support order or contractual agreement. After careful consideration of the legal issue presented, we affirm the order of the trial court.

The trial court’s statement of facts, as stipulated by the parties, is adopted for purposes of our review. Opinion (Oler, J.), filed 1/24/94, at 1-2. We note that the parties were divorced in 1984. Leslie Hain (hereinafter “decedent”) remarried in 1985 and died testate in 1992. No court order for child support or contractual agreement to provide support for the decedent’s three minor children existed at the time of his death. Appellant argues that in spite of a lack of statutory authority, this Court should impose a duty of support upon the estate as a matter of public policy.

Our standard of review in child support matters is whether the trial court abused its discretion by misapplying or overriding existing law, or exercised its judgment in a way which is manifestly unreasonable, or evidences partiality, bias, or ill-will. Ashbaugh v. Ashbaugh, 426 Pa.Super. 589, 595, 627 A.2d 1210, 1213 (1993). A review of the record in this case discloses no abuse of discretion on the part of the trial court. The trial court is correct in observing, as appellant concedes, that the legislature has declined to impose a duty of support on the estate of a divorced parent, and there is no case law to be cited in support of such a duty. Further, we agree with the trial court that it is not the role of the judiciary to legislate changes in the law which our legislature has declined to adopt. The decedent disposed of his property as he wished prior to his death and this disposition is not challenged herein; absent legislative authority to do so, we decline to rewrite the decedent’s will. In re Agostini’s Estate, 311 Pa.Super. 233, 457 A.2d 861 (1983) (testator with children may disinherit one or all; a testator is free to dispose of property as he sees fit).

As we have determined that the trial court correctly applied the law and the record discloses no evidence of partiality, ill-will, or bias, we affirm the trial court’s order dismissing appellant’s petition for support.

Order affirmed.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

I dissent. A parent’s duty to support a minor child is absolute and, therefore, I would hold that where the assets of a deceased parent’s estate could provide support for the deceased’s minor child, even in the absence of any agreement, order or bequest, the funds from the estate should, if necessary, be made available to support the child.

In the present case, following their parents divorce, Appellant’s three children resided with the deceased and his second wife until the time of death. After their father died, their step mother declined to care for these children. Even though the decedent was the children’s custodial parent, he failed to provide for them in his will. Instead, the will directed that his second wife receive his entire estate and only in the event that she die within 60 days of his death, would his estate pass to his children. Appellant, the former wife and natural mother of the children, filed for support against the deceased father’s estate. The trial court dismissed Appellant’s Complaint and this appeal followed.

In 1956, our supreme court acknowledged that “... a father, in the absence of a contract, has no legal obligation to support his children after his death, and is under no legal obligation to leave his children anything by will.” In re Fessman Estate, 386 Pa. 447, 452, 126 A.2d 676, 678 (1956). As divorce has become more prevalent, however, the importance of our child support laws has increased and caused them to undergo significant change. Initially, there was a presumption that the duty to support a minor child rested solely with the child’s father. In Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974), however, our supreme court held that, “[s]uch a presumption is clearly a vestige of the past and incompatible with the present recognition of equality of the sexes.” Id. at 539, 318 A.2d at 326 (1974). From this initial recognition that increasing numbers of women were generating their own incomes, our legislature and courts developed the now well recognized duty that “[t]he responsibility for child support rests equally upon both parents and must be discharged in accordance with their individual capacities and abilities.” Opie v. Richart, 410 Pa.Super. 52, 54, 598 A.2d 1321, 1322 (1991) citing Conway v. Dana, supra, 456 Pa. 536, 318 A.2d 324. In 1989, our supreme court, in response to legislative mandate, developed uniform statewide Support Guidelines designed to aid courts in determining the need for support and the amount of support to be awarded.

The Majority holds that, “... the legislature has declined to impose a duty of support on the estate of a divorced parent, and there is no case law to be cited in support of such a duty. Further, ... it is not the role of the judiciary to legislate changes in the law which our legislature has declined to adopt.” (Majority Opinion at page 43).

I cannot adopt the Majority’s position because I believe that the legislature’s actions must be viewed as a whole. It is evident that the legislature has- increasingly since 1985 expressed a policy designed to provide support for minor children, and enforce that right.

Numerous laws have been enacted to assure that a parent meets his or her child support obligation. For instance, a parent who willfully fails to make support payments can be held in civil contempt and ordered to serve a term of imprisonment of up to six months, receive probation of up to six months and pay a fine of $500.00. 23 Pa.C.S.A. § 4345(a). While courts always had the power to direct wage attachments, current law makes attachment of income routine, rather than elective. 23 Pa.C.S.A. § 4348. In addition to regular support payments, a parent may also be ordered to pay a portion of the child’s medical expenses. 23 Pa.C.S.A. § 4326. The legislature has provided for the collection of support payments from a parent who resides outside of the Commonwealth by enacting The Revised Uniform Reciprocal Enforcement of Support Act which provides for the extradition of a parent back to the state where that parent has been charged criminally for failing to comply with a child support order. 23 Pa.C.S.A. § 4501 et seq. Also, a recently enacted statute directs licensing agencies or authorities, upon a court’s Order, to deny the issuance, or renewal of a license to engage in a “profession, trade or business” where a parent has failed to make support payments. 23 Pa.C.S.A. § 4355. Most interestingly for our purposes, entireties property can be used to enforce a support obligation against a spouse. 23 Pa.C.S.A. § 4361 et seq. Even lottery winnings' are subject to use for payment of support orders. 23 Pa.C.S.A. § 4308. These statutes establish that the law has become increasingly forceful in its efforts to provide for the support of minor children. Furthermore, the legislature has recognized the need for child support to continue until the unemancipated child reaches the age of 18 and recent legislation has directed that parents have a shared responsibility to provide financial support for their child’s post-secondary education. 23 Pa.C.S.A. § 4327. Even the retroactive modification of arrears accumulated when a parent fails to pay an existing order has been prohibited. 23 Pa.C.S.A. § 4352. Finally, while there is no specific statute which states that the duty to support a minor child continues after the death of the parent, unlike Section 3707, 23 Pa. C.S.A., of our spousal support law which specifically states that spousal support shall end upon the death of the payor unless otherwise provided for in a separate agreement or order, there is no child support provision which states that an obligor parent’s duty to support a minor child ends with that parent’s death.

Accordingly, while the legislature has not specifically stated that a deceased parent’s estate will be held responsible for providing support for that parent’s minor child, in light of important societal changes and corresponding changes made in child support laws, we can infer that the legislature intends for the estate of financially able parents to provide support for their children. This is not an attempt to usurp the legislature’s power, but rather, a conclusion reached in recognition of the legislature’s goal to provide for the children of divorced parents. The “law [is] a living system rooted in time, place and circumstance.” L. FRIEDMAN, A HISTORY OF AMERICAN LAW 619 (2d ed. 1985). Much has changed since our supreme court acknowledged in In re Fessman Estate, supra, 386 Pa. 447, 126 A.2d 676, that a father had no duty to support his children after his death. Today, both parents, if financially able, are clearly responsible for the support of their children and the legislature has gone to great lengths to ensure that parents fulfill that obligation. We cannot now ignore the legislature’s efforts. Absent a statute that prohibits the imposition of a duty of support against the estate of a deceased parent, I conclude that the trial court erred in dismissing the Complaint for Support. In determining the extent of any order for support, I would direct trial courts to consider the extent that payments are made to or on behalf of the children from collateral sources like Social Security, pension funds, and insurance. In addition the needs of the current family must be considered in fashioning an award. However, these issues are case related and their determination should await specific cases raising specific questions.

Accordingly, I dissent from the position espoused in the Majority Opinion which permits a deceased parent’s estate to escape responsibility for the support of the deceased’s surviving minor children.


source: Caselaw Access Project

author: JOHNSON, Judge: POPOVICH, Judge,

license: Public Domain

text:
    653 A.2d 24
    COMMONWEALTH of Pennsylvania v. Anthony MOORE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 24, 1994.
    Filed Jan. 20, 1995.

      Jeanette D. Dickerson, Upper Moreland, for appellant.

      Mary M. Killinger, Executive Asst. Dist. Atty., Norristown, for Com., appellee.
    Before POPOVICH, JOHNSON and CERCONE, JJ.
   JOHNSON, Judge:

Anthony Moore appeals from the order denying his petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §. 9541 et seq. We affirm.

On September 21, 1990, while Moore was on parole for an unrelated offense, he was charged with possession of cocaine with intent to deliver, and he was incarcerated. On October 25, 1991, Moore entered into a negotiated guilty plea to the possession charge. Pursuant to the negotiated agreement, Moore was sentenced to a minimum of three and one-half years’ imprisonment, with a retroactive commencement date of September 21, 1990. However, because the conviction for this new offense violated the conditions of Moore’s parole, the Pennsylvania Board of Probation and Parole (the Board) recommitted Moore to prison’ to serve the remainder of his earlier sentence through September 9, 1992. In so doing, the Board changed the effective date of the new sentence from September 21, 1990, to September 9, 1992, to run consecutively to the recommitment.

Moore did not file a direct appeal or a petition to withdraw his guilty plea. Rather, Moore filed a PCRA petition seeking either modification of his sentence so that it would conform to the term imposed following his guilty plea or permission to withdraw his guilty plea. The trial court denied Moore’s petition, and this appeal followed.

On appeal, Moore argues that his counsel was ineffective for failing to advise him that the Board had the authority to require that his sentence for the cocaine offense run consecutively to the recommitment sentence. See Brief for Appellant at 5-6, 8. Further, Moore asserts that counsel’s ineffectiveness caused him to unknowingly enter into the guilty plea. Id. at 7. Therefore, Moore argues, his sentence should be modified in a manner that would afford him the benefit of his bargain, or he should be permitted to withdraw his guilty plea. Nowhere in his brief to this Court does Moore argue that he is entitled to post-conviction relief because of an unlawfully induced guilty plea pursuant to 42 Pa.C.S. § 9543(a)(2)(iii). Rather, he couches his claim solely as one of ineffective assistance of counsel. Id. at 5-8.

Initially, we must determine whether this claim is cognizable under the PCRA because the PCRA limits the types of claims that are cognizable. Commonwealth v. Grier, 410 Pa.Super. 284, 286-87, 599 A.2d 993, 994 (1991). For Moore’s ineffectiveness claim to be cognizable under the PCRA, Moore must plead and prove, by a preponderance of the evidence, that his sentence resulted from “[ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(h). That requirement “constitutes ‘a substantial restriction on the grounds for post-conviction collateral relief in Pennsylvania.’ ” Grier, supra, at 288, 599 A.2d at 995, quoting Commonwealth v. Thomas, 396 Pa.Super. 92, 98, 578 A.2d 422, 425 (1990) (comparing PCRA to its predecessor Post Conviction Hearing Act).

Generally, where a party has “entered a guilty plea, the truth-determining process is not implicated.” Commonwealth v. Shekerko, 432 Pa.Super. 610, 615, 639 A.2d 810, 813 (1994). This is particularly so where a PCRA challenge relates to an accused’s understanding of sentencing. In Grier, supra, 410 Pa.Super. 284, 599 A.2d 993, an appellant who pleaded guilty to two counts of criminal trespass and one count of criminal mischief sought relief under the PCRA. He claimed that his counsel had been ineffective for failing to introduce evidence that might have affected his sentence and for failing to preserve sentencing issues by filing a motion to modify the sentence. The court determined that these claims were not cognizable under the PCRA, finding that Grier did “not explain how [counsel’s] failure undermined the truth-determining process, nor [did he] allege that it prevented a reliable determination as to his guilt or innocence.” Grier, supra, at 289-90, 599 A.2d at 998-99.

In the present case, Moore complains that he was not informed of the authority of the Board to require his sentence for possession to run consecutively to his recommitment for the parole violation. As in Grier, Moore has not alleged that this deficiency adversely affected the truth-determining process. See also Commonwealth v. Wolfe, 398 Pa.Super. 94, 580 A.2d 857 (1990) (claim that counsel was ineffective in formulating arguments relating to sentencing not cognizable under PCRA because claims not related to truth-determining process).

Moreover, “[w]e have interpreted [§ 9543(a)(2)(h) ] to mean that an ineffectiveness claim brought under the PCRA must raise a question of whether an ‘innocent individual’ has been convicted.” Commonwealth v. Tanner, 410 Pa.Super. 398, 406, 600 A.2d 201, 205 (1991), appeal denied, 530 Pa. 654, 608 A.2d 29 (1992). For example, in Commonwealth v. Harvey, 407 Pa.Super. 545, 595 A.2d 1280, appeal denied, 530 Pa. 652, 608 A.2d 28 (1991), the appellant argued that he was entitled to relief under the PCRA because counsel’s ineffectiveness had caused him to plead guilty. Specifically, he alleged that counsel was ineffective for failing to inform him that the charges against him, based on several separate incidents, could be severed upon motion. The court found that the claim was cognizable under the PCRA. It reasoned that “the argument that the jury could have been unduly prejudiced by the sheer number of charges pending before the court at once challenges the truth determining process.” Id. 407 Pa.Super. at 549 n. 2, 595 A.2d at 1283 n. 2. Thus, the ineffectiveness claim was cognizable under the PCRA because the ineffectiveness related to the factfinder’s ability to determine the guilt or innocence of the accused. See also Commonwealth v. Nelson, 393 Pa.Super. 611, 574 A.2d 1107 (1990) (counsel’s ineffectiveness for failing to challenge admissibility of incriminating evidence and then advising appellant to plead guilty undermined the truth-determining process and entitled appellant to relief under the PCRA).

Here, Moore’s understanding of the Board’s sentencing authority could not have aided him in persuading a factfinder of his innocence or guilt. Further, Moore has not alleged that counsel’s failure to inform him of the Board’s sentencing authority related in any way to the truth-determining process that would have occurred absent his plea. Cf Tanner, supra (claim that counsel was ineffective for failing to advise Tanner of his right to take appeal to the Pennsylvania Supreme Court was not cognizable under PCRA because Tanner did not explain how truth-determining process or reliability of determination of guilt was implicated). Accordingly, Moore has failed to plead and prove facts sufficient to support a claim that is cognizable under the PCRA.

Lastly, we note that, had Moore raised a cognizable claim, whether based on ineffective assistance of counsel or an unlawfully induced guilty plea, we would find it to be without merit. Moore contends that he was not informed that the effective date of the bargained-for sentence could be changed by the Board. However, the record does not support this contention. During the guilty-plea colloquy, the following exchange occurred:

[Defense Attorney]: One specific point, Mr. Moore, it’s my understanding that you are on parole in two jurisdictions.
Do you understand that?
[Moore]: Yes, sir.
[Defense Attorney]: And you understand by pleading guilty here today you could be — very well would be in violation of those paroles and you could receive separate consideration and sentences pursuant to your plea today?
[Moore]: Yes, sir.

N.T., Guilty Plea, dated October 25, 1991, at 7. Furthermore, at the conclusion of-the guilty plea hearing, the judge reminded Moore that, “more than likely you will be violated by [Pennsylvania] as well as ... New York. Id. at 24. Therefore, Moore’s contention that he did not know that he could receive separate consideration on sentencing for parole violations is without merit.

Based upon the foregoing, we affirm the denial of Moore’s PCRA petition.

Order affirmed.

POPOVICH, J., files a Dissenting Opinion.

POPOVICH, Judge,

I respectfully dissent from the opinion of the majority which concluded that appellant failed to plead and prove facts sufficient to raise a cognizable claim for relief under the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541, et seq. To the contrary, I am convinced not only that appellant has raised a cognizable PCRA claim, but also that his claim is meritorious. Accordingly, I would reverse the decision of the court below, vacate appellant’s sentence and remand for resentencing in accordance with the provisions of this dissenting opinion.

I certainly agree with the majority that the PCRA limits the types of claims which are eligible for relief. 42 Pa.C.S.A. § 9543; see also, Commonwealth v. Grier, 410 Pa.Super. 284, 286-287, 599 A.2d 993, 994 (1991). Presently, the majority analyzes appellant’s claim strictly under 42 Pa.C.S.A. § 9543(a)(2)(ii), which permits relief when a conviction resulted from, “Ineffective assistance of counsel which, in circumstances of the particular case, so undermine the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” Herein, appellant contends that his guilty plea was not knowing and voluntary because his counsel was ineffective for failing to inform him that his sentence could not run concurrently with any “back-time” from prior sentences, and because the court and the Commonwealth failed to comply with the terms of a plea bargain. Thus, I would find that appellant has raised a cognizable claim pursuant to 42 Pa.C.S.A. § 954(a)(2)(iii) which provides relief from a conviction or sentence which resulted from, “A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused an individual to plead guilty.”

My conclusion concerning appellant’s eligibility for relief under the PCRA is supported by the recent case of Commonwealth v. Shekerko, 432 Pa.Super. 610, 639 A.2d 810 (1994), wherein we reviewed the merits of a claim which was similar to appellant’s pursuant to . 42 Pa.C.S.A. § 9543(a)(2)(ii). Therein, we stated:

Because Shekerko entered a guilty plea, the truth-determining process is not implicated. Thus, we confíne our review to Shekerko’s claim under section 9543(a)(2)(iii), concerning the lawfulness of his guilty plea.

In Shekerko, supra, we found that the petitioner raised a cognizable PCRA claim when he alleged that prior counsel was ineffective for misleading him about the possible maximum range of his sentence. Shekerko, 432 Pa.Super. 615, 639 A.2d at 813, 814. Similarly, I would find that appellant is eligible for PCRA relief since he alleged that his plea was not knowing and voluntary because of counsel’s ineffective stewardship, i.e., failing to advise appellant that he must serve his “back-time” before he could begin to serve his present sentence. Moreover, to the extent that appellant’s PCRA petition directly attacks the validity of his guilty plea by alleging that the Commonwealth and the lower court failed to comply with a plea bargain, appellant’s case is clearly within the ambit of 42 Pa.C.S.A. § 9543(a)(2)(iii), and is remarkably similar to the case of Commonwealth v. Zuber, 466 Pa. 453, 353 A.2d 441 (1976) (post-conviction petition for relief raises cognizable claim where defendant contends his guilty plea was involuntary because of breached plea agreement).

The majority cites Grier, 599 A.2d at 994-995, and Commonwealth v. Wolfe, 398 Pa.Super. 94, 580 A.2d 857 (1990), for the proposition that appellant has not raised a cognizable claim because he merely raised issues regarding his sentencing. However, those cases are inapposite to the present facts. Certainly, appellant seeks a sentence which complies with the alleged plea bargain. However, appellant’s claim does not implicate the discretionary aspects of his sentence from which no PCRA claim would arise, Grier, supra, 410 Pa.Super. 284, 599 A.2d 993, and Wolfe, supra, 398 Pa.Super. 94, 580 A.2d 857, but, rather, appellant’s claim questions the voluntariness of his guilty plea because he did not receive the sentence which he was promised. In this regard, appellant’s claim is on-all-fours with the claim raised in Zuber, supra, 466 Pa. 453, 353 A.2d 441, wherein our Supreme Court ruled upon the merits of the post conviction petition.

Having determined that appellant has raised a cognizable PCRA claim, we must determine whether appellant’s guilty plea was unlawfully induced under circumstances which made it likely that the inducement caused appellant to plead guilty. 42 Pa.C.S.A. § 9543(a)(2)(iii). Appellant complains that he had entered into a plea bargain with the Commonwealth to the effect that, in exchange for his plea, he would be sentenced to a minimum of three and one-half years in a state correctional institution, he would not be transferred to a state prison for thirty days, no fine would be imposed, one charge would be nol prossed, and the effective date of his sentence would be September 21, 1990, the day he was initially incarcerated on the charges sub judice. The record reflects that appellant correctly summarizes his plea agreement, and the lower court stated:

Mr. Moore, you have heard Mr. Hayden [the district attorney] indicate the terms and conditions of your plea, that in exchange for your guilty plea to a violation of the Controlled Substance Act you would receive a negotiated minimum sentence of three and a half years in a State Correctional Institution with credit for time served of your arrest and the Commonwealth would also be waiving the fine. And that would be the extent of the agreement, Mr. Moore.

N.T., 10/25/91, pp. 4-5.

In fact, the lower court accepted appellant’s guilty plea and immediately thereafter imposed a sentence consistent with the plea agreement. N.T., 10/25/91, pp. 23-24. Eventually, however, appellant was informed by the Pennsylvania Board of Probation and Paróle that he had to serve his “back-time” for violating parole before he could begin to serve his sentence of the current convictions. Appellant contends he was never informed that he could not begin serving his present sentence until after serving his “back-time”, and he pleaded guilty-under the mistaken belief that his sentence would begin on September 21, 1991, rather than September 9, 1992, that date on which he completed serving the balance of his prior sentence.

I discern no significant difference between the present case and Zuber, supra. Therein,' Zuber alleged that his plea was involuntarily induced by the Commonwealth’s promise to request the State Board of Parole to permit the his present sentence to run concurrently with appellant’s “back-time”. The court reiterated the terms of Zuber’s plea in open court and imposed sentence. However, pursuant to 61 Pa.S.A. § 331.21a, Zuber was required to serve the remainder of his prior sentence before his new sentence could commence. Accordingly, our Supreme Court held that Zuber’s plea was unlawfully induced by a promise which neither the Commonwealth nor the court could keep. Our high court then remanded the case for resentencing in a manner which would give effect to the plea agreement. Zuber, 466 Pa. 463, 353 A.2d at 446.

Similarly, appellant contends that he believed he would begin to serve his present sentence from the initial date of his incarceration. The Commonwealth agreed to this part of the bargain, and the court sentenced appellant accordingly. Nowhere in the record did appellant’s counsel, the Commonwealth or the court inform appellant that it was legally impossible to serve the sentences concurrently. Consequently, I am convinced that appellant’s plea was involuntarily induced, and I would remand for resentencing.

      . "Back-time” is the common term for the balance of a parole violator’s sentence as originally imposed which must be served prior to the commencement of a newly imposed sentence on unrelated charges. 61 Pa.S.A. § 331.21a.

      . I note that appellant was informed at the time of his plea that his present conviction would result in a violation of his parole. N.T., 10/25/91, pp. 7, 24. However, he was never told how his parole violation would affect his current sentence.


author: DEL SOLE, Judge: WIEAND, Judge,

text:
    653 A.2d 28
    C.T.D., Appellee, v. N.E.E. and M.C.E., Appellants.
    Superior Court of Pennsylvania.
    Argued March 17, 1994.
    Filed Jan. 9, 1995.

      Thomas A. James, Jr., Bloomsburg, for appellants.
    Robert W. Lape, Jr., Roaring Springs, for appellee.
    Before WIEAND, DEL SOLE and HUDOCK, JJ.
   DEL SOLE, Judge:

This appeal raises important issues regarding a putative father’s right to request court ordered blood tests to determine paternity and the rights of the child’s mother and the man who is named as the child’s father on his birth certifícate, to not undergo such testing.

N.E.E. gave birth to a son, B.T., on June 22, 1990 and at that time, chose not to name B.T.’s father. She testified that when B.T. was conceived, she was involved in sexual relationships with three men, M.C.E., C.T.D. and S.M. and while she believed that M.C.E. was B.T.’s biological father, she chose not to name him as such because their relationship was still developing.

N.E.E.’s relationship with M.C.E. continued throughout her pregnancy and she also remained in contact with C.T.D. He accompanied her to the doctor on a couple of occasions, and they exchanged several letters. In one of her letters to him, N.E.E. informed C.T.D. that it was her belief that either he or S.M. was the father of her baby, but that nothing could be determined for sure until the baby was born and blood tests were performed. M.C.E. was not mentioned in the letter.. As her pregnancy progressed, contact between C.T.D. and N.E.E. lessened and eventually ceased following a phone conversation that occurred between them two days after B.T.’s birth. During that conversation, N.E.E. told C.T.D. that the baby was a boy and that she was now with M.C.E. who had been at her side during B.T.’s birth.

After B.T. was born, the relationship between N.E.E. and M. C.E. continued. In June 1991, N.E.E. and B.T. moved in with M.C.E. and his parents and within a few months, M.C.E., N. E.E. and B.T. moved into a home of their own. On December 31, 1991, M.C.E. and N.E.E. married and on March 5, 1992, a new birth certificate was issued for B.T. naming M. C.E. as his father.

On March 24, 1992, N.E.E. received a letter from an attorney representing C.T.D. and S.M. requesting that all parties involved submit to blood testing to determine the identity of B.T.’s biological father. N.E.E. refused to submit to the testing and on June 22, 1992, C.T.D. and S.M. filed a Complaint seeking partial custody and visitation of B.T. and a Petition for Blood Tests. Acting upon an agreement that was purportedly entered into between N.E.E., C.T.D. and S.M., the court entered a Consent Order directing that the parties submit to blood tests. Subsequently, N.E.E. filed a Motion for a Protective Order challenging the veracity of the Consent Order on the grounds that it was improperly granted because N. E.E.’s attorney acted without authority to enter into it on N.E.E.’s behalf and that it was improperly granted without M.C.E.’s joinder and consent. The court granted the Protective Order and an evidentiary hearing was held for the purposes of taking testimony relating to the petition for blood tests. After hearing testimony from the parties, the trial court ordered the tests and this appeal followed.

N.E.E. and M.C.E. argue that the trial court erred in ordering the blood tests. They allege that C.T.D. was es-topped from requesting the tests because his petition was not filed until B.T. was almost two years old. They argue that in the interim they established a family unit and Appellee failed to claim or establish any parental right to B.T. during that time.

Subsection “c” to the Uniform Act on Blood Tests to Determine Paternity, 23 Pa.C.S.A. § 5104 provides as follows:

(c) Authority for test. — In any matter subject to this section in which paternity, parentage or identity of a child is a relevant fact, the court, upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved, may or, upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to the tests, the court may resolve the question of paternity, parentage or identity of a child against the party or enforce its order if the rights of others and the interests of justice so require.

23 Pa.C.S.A. § 5104(c).

This court has held that “[wjhile the Act creates a statutory right to obtain blood testing to determine paternity, the right is not absolute and must be balanced against competing societal/family interests.” McCue v. McCue, 413 Pa.Super. 71, 74, 604 A.2d 738, 739 (1992), allocatur denied, 531 Pa. 655, 613 A.2d 560 (1992) citing Donnelly v. Lindenmuth, 409 Pa.Super. 341, 344, 597 A.2d 1234, 1235 (1991). N.E.E. and M.C.E. argue that C.T.D.’s alleged right to the testing is far outweighed by the fact that they have established a family and that C.T.D. has failed to develop any relationship with B.T. In particular, N.E.E. and M.C.E. rely on 23 Pa.C.S.A. § 5102(b) for the proposition that paternity by estoppel bars C.T.D. from seeking and obtaining the requested testing. It reads as follows:

(b) Determination of paternity. — For purposes of prescribing benefits to children born out of wedlock by, from and through the father, paternity shall be determined by any one of the following ways:
(1) If the parents of a child born out wedlock have married each other.
(2) If, during the lifetime of the child, it is determined by clear and convincing evidence that the father openly holds out the child to be his and either receives thé child into his home or provides support for the child.
(3) If there is dear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.

23 Pa.C.S.A. § 5102(b).

Because N.E.E. and M.C.E. married after B.T.’s birth, there is no presumption that M.C.E. is B.T.’s biological father. See Everett v. Anglemeyer, 425 Pa.Super. 587, 625 A.2d 1252 (1993) and John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990) cert. denied, 498 U.S. 850, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990) (presumption exists that a child is a child of the marriage where the child is born to a married woman). Recognizing that that presumption does not apply to this case, N.E.E. and M.C.E. argue instead that this case should be determined according to the doctrine of paternity by estoppel.

“[PJrinciples of estoppel are peculiarly suited to cases where the child is conceived out of wedlock and no presumptions of paternity apply.” Jefferson v. Perry, 432 Pa.Super. 651, 656, 639 A.2d 830, 833 (1994). “In simplistic terms, the doctrine [of equitable estoppel upon which paternity by estoppel is based] is one of fundamental fairness such that it prevents a party from taking a position that is inconsistent to a position previously taken and thus disadvantageous to the other party.” In re Estate of Simmons-Carton, 434 Pa.Super. 641, 654, 644 A.2d 791, 798 (1994). Paternity by estoppel has been used to prevent an individual who has held himself out to be a child’s father from later seeking blood testing in an effort to prove that he is not the child’s father. In the Matter of Michael Ronald Montenegro, Jr., 365 Pa.Super. 98, 528 A.2d 1381 (1987). Likewise, the doctrine has also been used to prevent a child’s natural mother from successfully seeking blood testing where her objective was to disprove the paternity of the man she previously acknowledged to be the child’s father. McCue v. McCue, supra, 413 Pa.Super. 71; Gulla v. Fitzpatrick, 408 Pa.Super. 269, 596 A.2d 851 (1991) and Seger v. Seger, 377 Pa.Super 391, 547 A.2d 424 (1988).

In the present case, C.T.D. is not seeking to deny that he is B. T.’s father, but rather he wants to establish that he is his father. N.E.E. and M.C.E. argue that under the doctrine of paternity by estoppel, factors such as their marriage, B.T.’s new birth certificate and the fact that M.C.E. has continually held B.T. out as his son, effectively estop C.T.D. from asserting his paternity. We disagree. Paternity by estoppel as discussed above, applies to those situations where “blood tests may well be irrelevant, for the law will not permit a person in [those] situations to challenge the status which he or she has previously accepted.” John M. v. Paula T., 524 Pa. 306, 318, 571 A.2d 1380, 1386-87 (1990) cert. denied, 498 U.S. 850, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990). While it is clear that paternity by estoppel could be applied to preclude either M.C.E. or N.E.E. from challenging M.C.E.’s paternity, we find no support for the argument that their actions can estop C. T.D. from asserting his alleged paternity. Instead, we find that C.T.D.’s failure to act during B.T.’s first two years of life may have effectively estopped him from now raising his claim of paternity.

From 1990 until 1992, C.T.D. had no contact with either mother or child. By his own account, he made no attempt to establish a relationship with B.T. or offer him any financial support. Under these circumstances, we hold that a determination of whether C.T.D. abandoned B.T. is crucial to the disposition of this case. As we have recognized in the Adoption Act, a parent’s rights to a child may be terminated after six months if the court finds that “[t]he parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition [for involuntary termination of parental rights] either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.” 23 Pa.C.S.A. § 2511(a)(1). By analogy, in a case as the one presented here, the trial court should determine if the putative father has failed to timely exert his parental claim. Part of that determination should examine whether N.E.E. and M.C.E. by their actions frustrated C.T.D.’s ability to seek custody or visitation. If there is no evidence that N.E.E. and M.C.E. prevented C.T.D. from visiting the child or that C.T.D. made any attempt to establish paternity for two years, the request for blood tests should be denied. The dissenting author claims that in reaching our decision we have “failed to give adequate consideration to C.T.D.’s right to share in the support and companionship of a child who may be his own.” This criticism is unfounded. We have carefully considered C.T.D.’s rights but we believe that he may have relinquished those rights through his actions. Being a parent is more than a biological function. It requires a commitment to the child which is many times demanding. Therefore, if the court finds that C.T.D. has failed to exercise his parental claim, there is no reason to disturb the familial relationship that has developed between B.T., N.E.E. and M.C.E.

Accordingly, we find it necessary to remand this matter to the trial court for a determination of whether C.T.D.’s actions amounted to an abandonment of his potential paternal responsibilities to the degree that he allowed an uncontested father-child relationship to develop between M.C.E. and B.T. If the trial court finds that C.T.D. abandoned B.T., C.T.D.’s request for blood testing should be denied.

Order reversed and case remanded to the trial court for proceedings consistent with this Opinion. Jurisdiction relinquished.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

I respectfully dissent. There is in this appeal no need to remand for further proceedings. The circumstances which led the trial court to order blood tests to aid it in determining paternity were fully presented by the parties, and there is no need for an additional evidentiary hearing to explore further the issue of estoppel. Indeed, appellants have not requested remand for an evidentiary hearing, and their argument on appeal, as I understand it, is that, in order to preserve a subsequently created family, we should recognize another exception to the legislatively authorized use of blood tests to determine true paternity. After careful review, I would refuse to create an additional exception under the circumstances of this case and would affirm the order of the learned trial court.

A son, B.T., was born to N.E.E. on June 22, 1990. During the possible period of conception, N.E.E. had engaged in sexual relations with three men, M.C.E., C.T.D., and S.M., any of which could have been the father of the child. Because of this uncertainty the child’s birth certificate stated that his father was unknown. Sometime before the child was born, however, a steady relationship developed between the child’s mother and M.C.E., who thereafter participated in prenatal care and was present at the birth of B.T. In June, 1991, N.E.E. and M.C.E. began living together, and, on December 31, 1991, they were married. N.E.E. thereupon took her husband’s last name, and, in March, 1992, husband and, wife had B.T.’s birth certificate amended to reflect that M.C.E. was his father and that the child was to be known by M.C.E.’s last name. Subsequently, a daughter was also born of the marriage of N.E.E. and M.C.E.

Shortly after learning that she was pregnant with B.T., N.E.E. had sent a letter to C.T.D. stating that either he or S.M. was the father of the child. Subsequently, C.T.D. wrote several letters to N.E.E., which she answered. Following the birth of B.T., C.T.D. called N.E.E. by telephone, and during this conversation N.E.E. told C.T.D. of her relationship with M.C.E. There was no further contact between N.E.E. and C.T.D. until March 24, 1992, when N.E.E. received a letter from a lawyer purporting to represent C.T.D. and S.M. and requesting that all parties submit to blood tests to establish the paternity of B.T. N.E.E. and M.C.E. refused to undergo such testing.

On June 22, 1992, C.T.D. filed a complaint seeking partial custody or visitation with the child, B.T. Two days later, a petition for blood tests was filed. Pursuant thereto, counsel for the parties agreed that a consent order should be entered directing that such tests be made, and an order directing blood tests was entered. Subsequently, however, N.E.E. employed other counsel, who moved to set aside the prior order on grounds that counsel had lacked authority to agree to it. M.C.E. was now also joined as a party to the action. Following a hearing, the trial court directed the parties to submit to blood tests. N.E.E. and M.C.E. appealed from this order.

The right to obtain blood testing to determine paternity is provided by the Uniform Act on Blood Tests to Determine Paternity, 23 Pa.C.S. § 5104. The Act provides, in part, as follows:

(c) Authority for test. — In any matter subject to this section in which paternity, parentage or identity of a child is a relevant fact, the court, upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved, may or, upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to the tests, the court may resolve the question of paternity, parentage or identity of a child against the party or enforce its order if the rights of others and the interests of justice so require.

23 Pa.C.S. § 5104(c).

“There is no situation of more monumental importance, or more worthy of due process protection, than the creation of a parent-child relationship.” Corra v. Coll, 305 Pa.Super. 179, 193-194, 451 A.2d 480, 488 (1982). “ ‘While the Act creates a statutory right to obtain blood testing to determine paternity, the right is not absolute and must be balanced against competing societal/family interests.’ ” McCue v. McCue, 413 Pa.Super. 71, 74, 604 A.2d 738, 739 (1992), allocatur denied, 531 Pa. 655, 613 A.2d 560 (1992), quoting Donnelly v. Lindenmuth, 409 Pa.Super. 341, 597 A.2d 1234 (1991). A child has a right to know and be supported, financially and emotionally, by his or her biological father. See: Mastromatteo v. Harkins, 419 Pa.Super. 329, 336, 615 A.2d 390, 394 (1992), allocatur denied, 535 Pa. 648, 633 A.2d 152 (1993); Koleski v. Park, 363 Pa.Super. 22, 30, 525 A.2d 405, 408 (1987). Moreover, a parent’s “right to ‘the companionship, care, custody and management of his or her children’ is an important and legally protectible interest.” Koleski v. Park, supra at 29, 525 A.2d at 408, quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551, 558 (1972). See also: Lassiter v. Department of Social Services of Durham County, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). It is also clear, however, that the Commonwealth has an interest in promoting and preserving the stability of an intact family. See: Everett v. Anglemeyer, 425 Pa.Super. 587, 594, 625 A.2d 1252, 1256 (1993); Coco v. Vandergrift, 416 Pa.Super. 444, 448, 611 A.2d 299, 301 (1992).

In John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990), cert. denied, 498 U.S. 850, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990), the Supreme Court of Pennsylvania held that a third party who stands - outside a marital relationship will not be permitted to challenge a husband’s claim of parentage by requesting blood tests under the Act. In such cases, the Court said, the presumption that the child is the issue of the husband is irrebuttable and conclusive and cannot be rebutted by the results of blood tests. In a concurring opinion by Nix, C.J., joined by a majority of the members of the court, he wrote: “Whatever the interests the putative father may claim, they pale in comparison to the overriding interests of the presumed father, the marital institution and the interests of this Commonwealth in the family unit.” Id. at 322-323, 571 A.2d at 1388.

The decision in John M. v. Paula T., supra, is not on all fours with the instant case. Here, there is no presumption that M.C.E. is the biological father of B.T., for B.T. was not born during coverture. M.C.E. and N.E.E. were not married until after the child had been born.

This also is not a case in which C.T.D. is estopped from asserting paternity. Estoppel is aimed at “achieving fairness between the parents by holding them both to their prior conduct regarding the paternity of the child.” Jefferson v. Perry, 432 Pa.Super. 651, 656, 639 A.2d 830, 833 (1994). Thus, in Matter of Montenegro, 365 Pa.Super. 98, 528 A.2d 1381 (1987), a proceeding to amend the name of the father appearing on a child’s birth certificate, the Superior Court held thát after a father had been designated on the child’s birth certificate, had married the child’s mother and had lived with the child in a family relationship for five years, he was estopped from relying on blood tests to disprove paternity. See also: Wachter v. Ascero, 379 Pa.Super. 618, 550 A.2d 1019 (1988); Manze v. Manze, 362 Pa.Super. 153, 523 A.2d 821 (1987). Similarly, it has been held, a mother will be estopped from attempting to disprove the paternity of a man whom she has held out to be the father of her child. See: Gulla v. Fitzpatrick, 408 Pa.Super. 269, 596 A.2d 851 (1991); Christianson v. Ely, 390 Pa.Super. 398, 568 A.2d 961 (1990); Seger v. Seger, 377 Pa.Super. 391, 547 A.2d 424 (1988). See also: Adoption of Young, 469 Pa. 141, 364 A.2d 1307 (1976); In re Estate of Simmons-Carton, 434 Pa.Super. 641, 644 A.2d 791 (1994).

In the instant case, it may well be that M.C.E. would be estopped from denying paternity of B.T. in an action for B.T.’s support and that N.E.E. would also be estopped from denying M.C.E.’s paternity. However, M.C.E. and N.E.E., by their conduct, cannot cause C.T.D. to be estopped from asserting his alleged paternity. C.T.D. has not taken action or acquiesced in action that is inconsistent with his claim of paternity; and, therefore, he cannot be deemed estopped from asserting his own paternity by the conduct of those whose interest it is to assert otherwise.

In its desire to prevent C.T.D. from challenging N.E.E.’s paternity of B.T., the majority has failed to give adequate consideration to C.T.D.’s right to share in the support and companionship of a child who may be his own. This, as we have observed, the courts have held to be an important and legally protected interest. Indeed, the Supreme Court of the United States has stated that “[w]hen an unwed father demonstrates a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child, his interest in personal contact with his child acquires substantial protection under the Due Process Clause.” Lehr v. Robertson, 463 U.S. 248, 261, 103 S.Ct. 2985, 2993, 77 L.Ed.2d 614, 626 (1983) (citation omitted). Moreover, while B.T. may presently know M.C.E. as his father, he has a right to learn, at an appropriate time, the identity of his biological father. He may also have pecuniary interests, such as rights of support and inheritance which can be enforced if his true father is determined.

The legislature has established that an “action or proceeding ... to establish the paternity of a child born out of wedlock [for support purposes] must be commenced within 18 years of the date of birth of the child.” 23 Pa.C.S. § 4343. In view of this policy, which has been established by the legislature, I cannot accept the majority’s proposition that the biological father of a child born to an unmarried woman can be estopped from asserting paternity merely by failing to act for a period of less than two years. Such a holding, in my judgment, violates fundamental notions of fairness.

Several days after B.T. was born, C.T.D. called N.E.E. to inquire about the child. The two people spoke briefly about B.T.; but N.E.E. told C.T.D. that she “had found somebody else.” N.E.E. subsequently began living with M.C.E., and the two were later married. Under these circumstances, I find it especially difficult to believe that C.T.D. should have acted more quickly and can now be estopped from determining, by blood testing, whether he is the biological father of the child born to N.E.E.

The legislature, when it enacted the Uniform Act on Blood Tests to Determine Paternity, established a clear policy for Pennsylvania. That policy was to sanction the use of blood tests in any proceeding in which the paternity of a child was a relevant fact. 23 Pa.C.S. § 5104(c). In the absence of a policy decision of the Supreme Court to the contrary, the policy established by the statute is determinative. This policy clearly authorizes a trial court to order blood tests where, as here, paternity is a relevant fact. The majority cites no authority, and indeed there is none under the present state of the law, which would preclude the use of blood tests under the facts of this case.

My review leads me to conclude that the trial court, acting pursuant to and in agreement with legislative authority, properly ordered blood tests to assist in determining whether C.T.D. is the biological father of B.T. When it did so, the court did not abuse its discretion. Therefore, I would affirm. Inasmuch as the majority concludes otherwise, I respectfully dissent.

      . S.M. was originally a party but he has since withdrawn.

      . Orders directing that parties submit to blood tests for purposes of determining paternity are appealable. Jones v. Trojak, 535 Pa. 95, 634 A.2d 201 (1993).

      . M.C.E. was not named in this letter as a possible father of the child.

      . S.M. was also a party to this complaint, but he subsequently withdrew.

      . The order is appealable. See: Jones v. Trojak, 535 Pa. 95, 634 A.2d 201 (1993).

      . See: Koleski v. Park, 363 Pa.Super. 22, 30, 525 A.2d 405, 408 (1987).

      . The majority’s citation to 23 Pa.C.S. § 2511(a)(1) is not persuasive. This provision is not analogous to the present circumstances in which actual paternity is very much in doubt.


author: DEL SOLE, Judge:

text:
    653 A.2d 35
    COMMONWEALTH of Pennsylvania v. Joseph James DONNELLY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 14, 1994.
    Filed Jan. 24, 1995.

      Linda F. Gerencser, Asst. Public Defender, Lancaster, for appellant.
    Joseph C. Madenspacher, Dist. Atty., Lancaster, for Com., appellee.
    Before DEL SOLE, BECK and CERCONE, JJ.
   DEL SOLE, Judge:

Joseph James Donnelly appeals from the judgment of sentence entered May 17,1994 following a guilty verdict by a jury for murder in the first degree. 18 Pa.C.S.A. § 2502(a). Since the jurors were deadlocked with regard to the penalty phase of the proceedings, the trial court discharged the jury and imposed a sentence of life imprisonment. This timely appeal was filed. We affirm.

We note that after the verdict was entered, Appellant did not request post-sentencing relief. Under new Rule 1410 of the Pennsylvania Rules of Criminal Procedure, effective for cases where the determination of guilt occurs after January 1, 1994, all requests for relief from the trial court shall be consolidated in a post-sentencing motion. Issues raised before or during trial are considered preserved for appeal whether or not a post-sentencing motion has been filed containing those issues. The trial court, however, upon receipt of the notice of appeal in this case, did not direct Appellant to file a concise statement of the matters complained of on appeal pursuant to Rule of Appellate Procedure 1925(b), and, as a result, the trial court did not file an opinion addressing these matters. We stress that the trial court must comply with Rule 1925 even though the filing of post-sentencing motions is optional. We will consider Appellant’s claims in the interest of judicial economy and since the issues are reviewable in this case without a trial court opinion.

First, Appellant challenges the sufficiency of the evidence. “In reviewing the sufficiency of the evidence, we must determine whether the evidence, and all reasonable inferences deducible therefrom, viewed in the light most favorable to the Commonwealth as verdict-winner are sufficient to establish all the elements of the offense(s) beyond a reasonable doubt.” Commonwealth v. Rollins, 525 Pa. 335, 339, 580 A.2d 744, 746 (1990). We also must determine whether the evidence would allow the trier of fact to find every element of the crimes proven beyond a reasonable doubt. Commonwealth v. Woods, 432 Pa.Super. 428, 638 A.2d 1013 (1994). “[T]he facts and circumstances established by the Commonwealth need not be absolutely incompatible with [the] defendant’s innocence, but the question of any doubt is for the [trier of fact] unless the evidence ‘be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.’” Commonwealth v. Jones, 431 Pa.Super. 475, 478, 636 A.2d 1184, 1186 (1994). The trier of fact is free to believe all, some or none of the evidence in a criminal trial. Woods, supra, 432 Pa.Super. 428.

“A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.” 18 Pa.C.S.A. § 2502(a). The Commonwealth must also establish that a person was unlawfully killed, that the accused did the killing, and that the killing was committed with malice aforethought, in addition to premeditation and deliberation. Commonwealth v. Mitchell, 528 Pa. 546, 599 A.2d 624 (1991). With these statements of the law in mind, we begin our review.

The evidence shows that Appellant was at the victim’s residence at the approximate time that the victim was murdered. Appellant had the type of firearm which was used to kill the victim. Appellant also made statements which were false and inconsistent such as, he sold a gun to a Hispanic, but he did not know the person’s name or address. He also told police that he knew the victim’s name but could not remember him; however, at trial he testified that he partied with the victim and was at his home every day during the summer of 1993. Appellant told police that he rode his bike to New York and then admitted that he took the victim’s car to New York and subsequently travelled under a false name to San Francisco. Fabrication of false and contradictory statements by the accused is evidence from which a jury may infer that they were made with the intent to mislead police and are indicative of guilt. Commonwealth v. Carbone, 524 Pa. 551, 574 A.2d 584, opinion amended on denial of reargument, 526 Pa. 226, 585 A.2d 445 (1990). Consciousness of guilt may also be reasonably inferred from the fact that the accused attempts to elude the police. Commonwealth v. Madison, 501 Pa. 485, 462 A.2d 228 (1983).

Furthermore, in first degree murder cases, Pennsylvania case law has held that premeditation and deliberation is established when there is a conscious purpose to cause death. Commonwealth v. Sattazahn, 428 Pa.Super. 413, 631 A.2d 597 (1993). We also note that:

The cases further hold that the specific intent to kill “can be formulated in a fraction of a second.” A specific intent to kill can be inferred from the circumstances surrounding an unlawful killing. Because a person generally intends the consequences of his act, a specific intent to kill may be inferred from the fact that the accused used a deadly weapon to inflict injury to a vital party of the victim’s body. (Citations omitted).

Id. 428 Pa.Super. at 422, 631 A.2d at 602.

Instantly, Dr. Ross’ autopsy revealed that the victim was shot once in the back of the head and once in the neck while he was lying on his left side. Appellant had the means and the opportunity to kill the victim as he was seen at the victim’s home near the time when the murder took place. In addition, he possessed a firearm similar to the one used to kill the victim, he admitted to stealing the victim’s' car and fleeing the Lancaster area after the murder, and he made inconsistent statements regarding his familiarity with the victim. Viewing these facts in a light most favorable to the verdict winner, we find that the evidence presented is sufficient to establish, beyond a reasonable doubt, all elements of murder in the first degree including the specific intent requirement.

Second, Appellant claims that the trial court erred by admitting into evidence inadmissible hearsay statements made by the victim concerning his intention to confront the defendant. Commonwealth witnesses Eric Hatton and Mark Erb both testified that the victim told them, shortly before the murder, that he intended to confront Appellant about coming to his home too often and was going to tell him to remove his belongings from his home. Defense counsel objected to this testimony as hearsay but the trial court overruled the objection on the basis of the state of mind exception to the hearsay rule.

Our supreme court in Commonwealth v. Riggins, 478 Pa. 222, 386 A.2d 520 (1978), stated that:

The state of mind exception of the hearsay rule is well established ... “We admitted such testimony on the ground that the declarations of the deceased indicated an existing intent or state of mind of the deceased-declarant and, since such declarations were made in a ‘natural manner’ and were material and relevant, their admission could be justified as an exception to the hearsay rule.” While it is true that such evidence will not be received as proof of the conduct of the accused (rather it relates to the state of mind of the declarant) the burden has been traditionally placed upon the accused to request a clarifying instruction----

Riggins, 478 Pa. at 234, 386 A.2d at 526. Similarly, in Commonwealth v. Lowenberg, 481 Pa. 244, 392 A.2d 1274 (1978), the statement of a murdered 82 year old woman, which was offered to establish the intention of the deceased to see the defendant and confront him concerning a financial matter she considered serious, was properly admitted because it came within the state of mind exception to the hearsay rule. The supreme court reasoned that intention, viewed as a state of mind, is a fact and is usually made known verbally or in writing. In many cases, it is impossible to prove intention apart from a separate statement which makes the state of mind exception necessary. This exception is justified because the circumstances under which the declarant’s comment is made suggest that it accurately reflects the declarant’s state of mind and there was an absence of a motive to deceive. Id.

In the present case, Appellant argues that Mark Erb and Eric Hatton’s testimony was presented solely for the truth of the matter asserted. He believes that the statements were to show that he had a confrontation with the victim, and, as a result, he had a motive to kill him. We disagree. The two statements regarding the victim’s intention to confront Appellant were not offered for the sole purpose of showing that a confrontation took place. The statements reveal the victim’s thoughts and also indicate that Appellant did not have a place to stay which is one reason why he was upset. This is corroborated by the testimony of Mark Erb who allowed Appellant to stay with him one night but refused to let him stay any longer. Erb also testified that, during his conversation with Appellant, he expressed his intention to go back to the victim to ask one more time for a place to stay. Karen Bitner also testified that two days before the murder Appellant was very upset and crying because he did not have a place to stay and she would not let him stay with her. Thus, the testimony was relevant and the court did not err by admitting the testimony regarding the victim’s state of mind as an exception to the hearsay rule.

Third, Appellant argues that he should be awarded a new trial on the grounds that the prosecutor made an improper argument to the jury. Appellant complains that the prosecutor distorted two statements by Commonwealth witnesses in his closing argument. On direct examination, Mark Erb was asked about the conversation he had with Appellant when he refused to allow him to stay with him and Appellant mentioned the victim’s name. Erb testified, “Yes; he put that in and he also said he wanted to go back and talk with Lou and ask one more time to, you know. He had to have a place to stay and he thought Lou might still do it for him.” (T.T. 5-11-94 at 519). In closing, the prosecutor rephrased this testimony as, “this defendant told Mark Erb, Lou is my last resort. If it doesn’t work out with Lou, I’m going to New York City. Lou is my last resort.” (T.T. 5-16-94 at 1181).

Detective Arnold testified that Appellant told him that a San Francisco detective mentioned the victim’s name to him, and Appellant told the detective, “I knew that person but now I can’t -remember who that person was.” (T.T. 5-12-94 at 810). In his closing statements, the prosecutor paraphrased this testimony as follows:

The following day, or. one or two or three days later, whatever, at the time Detective Arnold of the Lancaster City Police shows up, the agency actually investigating the murder, he meets with the defendant and the defendant at that time says, you know, the other inspector ran a name by me but I can’t remember the name.
T.T. 5-16-94 at 1189.

“When reviewing averments of prosecutorial misconduct in the form of improper remarks to the jury, the remarks of the prosecutor ‘must be evaluated in the context in which they occurred.’ ” Sattazahn, supra, 428 Pa.Super. 413, 631 A.2d at 609. In general, statements to the jury by the prosecutor do not constitute reversible error unless the unavoidable effect of the comments would be to prejudice the jury, forming in their minds fixed bias or hostility toward the accused so that they could not weigh the evidence in an objective manner and render a trustworthy verdict. Id. The prosecutor, when making closing arguments, is permitted wide latitude and may use reasonable oratorical flair. Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367 (1991).

Read within context, the prosecutor’s statements to the jurors did not have the unavoidable effect of depriving Appellant of a fair trial. Although the prosecutor’s statements were not verbatim, they certainly were not distortions warranting a new trial. The arguments were well within the ambit of fair comment and supported by the evidence.

Judgment of sentence affirmed.


author: PER CURIAM:

text:
    653 A.2d 39
    In re CITIBANK (SOUTH DAKOTA) CREDIT CARD LITIGATION Appeal of CITIBANK (SOUTH DAKOTA), N.A.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1994.
    Filed Jan. 24, 1995.
    Petition for Allowance of Appeal Granted May 31, 1995.

      Christopher R. Lipsett, Washington, DC, for appellant.
    Michael D. Donovan, Haverford & Michael P. Malakoff, Pittsburgh, for Loretta E. Irwin & Scott C. Magaw, participating parties.
    Before ROWLEY, President Judge, and WIEAND and SAYLOR, JJ.
   PER CURIAM:

This is a putative class action to recover from Citibank, a national bank located in South Dakota, certain charges made to holders of credit cards who are residents of Pennsylvania. These charges, it is alleged, are prohibited by the Pennsylvania Goods and Services Installment Sales Act, 69 P.S. §§ 1101-2303, the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §§ 201-1 to 201-9.2, and Pennsylvania common law. Citibank, in turn, filed preliminary objections in the nature of a demurrer to the complaint. It contended that its charges to credit card holders were authorized by Section 85 of the National Bank Act, which allowed national banks to charge “interest at the rate allowed by the laws of the State ... where the bank is located----” Because the charges made by Citibank were allowed by the laws of South Dakota, it was argued, the charges were proper.

The trial court dismissed the bank’s preliminary objections, holding that Section 85 of the National Bank Act was unconstitutional as applied to the facts of this case. The Superior Court thereafter granted Citibank’s petition for special allowance of an appeal from an interlocutory order.

After Citibank’s appeal had been argued, the Superior Court decided Mazaika v. Bank One, Columbus, N.A., 439 Pa.Super. 95, 653 A.2d 640 (1994), in which it held that similar charges were not “interest” and, therefore, were not protected by Section 85 of the National Bank Act and the “exportation doctrine” announced by the United States Supreme Court in Marquette v. First of Omaha Service Corp., 439 U.S. 299, 99 S.Ct. 540, 58 L.Ed.2d 534 (1978).

This Court may affirm the order of the trial court if it was correct for any reason. See: Fennell v. Nationwide Mut. Fire Ins. Co., 412 Pa.Super. 534, 539, 603 A.2d 1064, 1066, allocatur denied, 533 Pa. 600, 617 A.2d 1274 (1992); Williams v. Otis Elevator Co., 409 Pa.Super. 486, 495, 598 A.2d 302, 306 (1991); Arnold v. Logue, 405 Pa.Super. 422, 427, 592 A.2d 735, 737 (1991). Therefore, we affirm the order of the trial court on the basis of the decision in Mazaika v. Bank One, Columbus, N.A., supra, 439 Pa.Super. 95, 653 A.2d 640. Under Mazaika, it is readily apparent that the instant action cannot be terminated summarily in response to preliminary objections.

Order affirmed.

      . By affirming, we express no opinion on the constitutional issues which formed the basis for the trial court’s decision.


author: POPOVICH, Judge:

text:
    653 A.2d 40
    COMMONWEALTH of Pennsylvania, Appellant, v. John Anthony CICCONI, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1994.
    Filed Jan. 25, 1995.

      John F. Cowley, Asst. Dist. Atty., Wellsboro, for Com., appellant.
    Robert W. Kuhl, Public Defender, Lawreneeville, for appellee.
    Before CAVANAUGH, POPOVICH and SAYLOR, JJ.
   POPOVICH, Judge:

This case involves an appeal by the Commonwealth from the order of the Court of Common Pleas of Tioga County granting the appellee/John Anthony Cicconi’s Motion to Quash and Dismiss Criminal Information at No. 427 of 1993. We reverse.

The facts of record are not in dispute and reveal that at approximately 3:30 a.m. on the 14th day of September, 1993, the appellee entered the home of his cousin, Lisa Siebel, and sexually assaulted her. The incident was reported to the Pennsylvania State Police who, after questioning the victim and the appellee, lodged Criminal Information No. 427 of 1993 charging the appellee with rape, involuntary deviate sexual intercourse, aggravated indecent assault and indecent assault.

Trial by jury commenced on January 27, 1993, with the victim recounting the events surrounding the assault. Prior to completion of the trial, the appellee entered a plea of nolo contendere to aggravated indecent assault.' However, before sentencing, the appellee was granted a motion to withdraw his plea on February 22,1994. More specifically, at the February 22nd hearing, the Commonwealth did not oppose the motion to withdraw, but it did make an oral motion seeking to amend the criminal information to add an additional charge of burglary. It was the Commonwealth’s position that: “As a result of the testimony that came to light at the trial, specifically from the [victim’s mother], and in consultation with the Trooper [who investigated the case and questioned both victim and appellee], it came to light that there appeared] to be the basis for the filing of a Burglary charge.” N.T. 2/22/94 at 4.

Appellee’s counsel objected to the proposed amendment on the basis of Pa.R.Crim.P. 229, which prohibits joinder where a different and additional offense is charged. As a further basis for counsel’s objection to joinder, he argued:

“It basically robs my client of the chance for preliminary hearing on that charge and other procedural safeguards. So we would resist the motion. . That has nothing to do with whether it[ — burglary—]should be joined with these [charges at Criminal Information at No. 427 of 1993] or not.”

Id. at 5. The court denied the Commonwealth’s motion to amend. The Commonwealth then filed a new Criminal Information at No. 150 of 1994 charging the appellee with a burglary arising out of the same incident prompting the filing of Criminal Information at No. 427 of 1993.

On the date the appellee was arraigned on the burglary charge, he entered a plea of guilty and was sentenced 12 to 36 months in prison. Thereafter, on April 12, 1994, the appellee filed a motion to quash and dismiss Criminal Information at No. 427 of 1993 for the Commonwealth’s failure to join the charges thereunder with the burglary offense at Criminal Information at No. 150 of 1994. The latter had been disposed of by a guilty plea.

To permit prosecution of the crimes set forth in Criminal Information at No. 427 of 1993, argued the appellee, would be violative of 18 Pa.C.S.A. § 110’s requirement of joinder of cases where the charges filed arise from the same criminal episode. The court agreed and found that all charges (at Nos. 427 and 150) arose from a single incident and “was known or knowable at the time of the commencement of the first trial”. This precluded the Commonwealth from prosecuting the appellee under Criminal Information at No. 427 of 1993, especially given the appellee’s plea to burglary (at No. 150 of 1994) prior to consolidation efforts by the prosecution. This timely appeal followed by the Commonwealth and questions whether the court below erred in granting the appellee’s Motion to Quash and Dismiss the Criminal Information at No. 427 of 1993 on the basis of a violation of 18 Pa.C.S.A. § 110.

The relevant portion of the statutory provision reads as follows:

§ 110. When prosecution barred by former prosecution for different offense
Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is for:
sj«
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecution office at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense.

18 Pa.C.S.A. § 110(l)(ii).

“Section 110 of the Crimes Code requires the Commonwealth to consolidate in a single proceeding all known charges based on the same conduct or arising from the same criminal episode unless the court orders separate trials.” Commonwealth v. Webster, 323 Pa.Super. 164, 470 A.2d 532, 537 (1983). This rule of compulsory joinder is “ ‘intended both to protect a person accused of crimes from governmental harassment by forcing him to undergo successive trials for offenses stemming from the same event, and also, as a matter of judicial administration and economy, to ensure finality without unduly burdening the judicial process by repetitious litigation.’ ” Commonwealth v. Holmes, 480 Pa. 536, 391 A.2d 1015, 1017 (1978), quoting Commonwealth v. Tarver, 467 Pa. 401, 357 A.2d 539, 542 (1976).

No one disputes that the charges set forth in Criminal Information at Nos. 427 of 1993 and 150 of 1994 arose out of a single incident. Rather, it is the Commonwealth’s contention that the appellee waived his right to consolidate under Section 110 when he objected to the amendment of Criminal Information at No. 427 of 1993 to add burglary, or he pleaded guilty to Criminal Information at No. 150 of 1994 (burglary) knowing that the charges listed in Criminal Information at No. 427 of 1993 had yet to be resolved.

On the other hand, the court below and appellee are of the mind that, because the Commonwealth was aware of the burglary by the first trial (regarding Criminal Information at No. 427 of 1993), the failure to seek consolidation of the two Criminal Informations prior to the plea on the burglary charge was fatal and violative of Section 110.

The protection afforded by Section 110 against successive trials or governmental harassment is neutralized if the defendant requests separate trials and obtains a court order to that effect, or if he knowingly acquiesces in what appears to be an advantageous separation. Where such occurs, the defendant cannot later raise an objection claiming the statutory protection from multiple trials. Commonwealth v. Green, 232 Pa.Super. 134, 335 A.2d 493, 497 (1975); see also Commonwealth v. Wallace, 411 Pa.Super. 576, 602 A.2d 345, 349 (1992).

The type of “acquiescence” mentioned in Green sufficient to waive one’s Section 110 rights to consolidation is reflected in Commonwealth v. Carelli, 291 Pa.Super. 502, 436 A.2d 228 (1981), wherein the defendant claimed that he was placed in double jeopardy by having to defend against several traffic violations after pleading guilty to other traffic violations occurring in another municipality but arising out of the same criminal episode. We found that the appellant had twice waived his right to claim double jeopardy by failing to seek consolidation of the charges brought by the two municipalities. More specifically, the defendant deferred the traffic violations in the first municipality and later pleaded guilty in the second municipality without having all the charges consolidated. This type of maneuvering was condemned by this Court as gamesmanship by the defendant. In doing so, this Court quoted language germane to this case; to-wit:

“So long as two prosecutions are pending concurrently, and neither has gone beyond the stage at which joinder would be inappropriate or impermissible, the accused has an adequate remedy for his problem in seeking joinder of the offenses. If the accused does not request that the offenses be joined, it is fair to conclude that he has waived a claim that Section 110 of the Crimes Code has been violated. On the other hand, it is unfair to dismiss charges for serious offenses on the basis of presumed protections which the accused has not lifted a finger to exercise, especially since the accused is often in a better position to know of a potential conflict with Section 110 of the Crimes Code than the Commonwealth. The relatively drastic remedy of Section 110 should only be applied when an accused has not foregone the opportunity of moving to join all offenses in one prosecution. To hold otherwise is simply to foster chicanery by defense counsel.”

291 Pa.Super. at 508-9, 436 A.2d at 232, quoting Commonwealth v. Erisman, 247 Pa.Super. 476, 481-2, 372 A.2d 925 (1977). See also Commonwealth v. Tarver, supra, at 467 Pa. 401, 357 A.2d 539; Commonwealth v. Quackenbush, 314 Pa.Super. 324, 460 A.2d 1162 (1983); Commonwealth v. Bartley, 262 Pa.Super. 390, 396 A.2d 810, 813 (1979), and contrast Commonwealth v. Breitegan, 276 Pa.Super. 181, 187, 419 A.2d 155, 158 (1980).

Instantly, the appellee opposed the appellant’s attempt to amend Criminal Information at No. 427 of 1993, which .would have included burglary and caused all charges to be disposed of at one trial. Next, after the appellant filed a separate Criminal Information at No. 150 of 1994 for burglaiy, the appellee pleads guilty to Criminal Information at No. 150 of 1994, all the while cognizant of the existence of the charges under Criminal Information at No. 427 of 1993, and that both informations dealt with crimes arising out of a single incident.

The appellee, as well as the appellant, could have moved to consolidate the two criminal informations. See Commonwealth v. Quackenbush, supra, 314 Pa.Super. 324, 460 A.2d 1162; Commonwealth v. Carelli, supra, 291 Pa.Super. 502, 436 A.2d 228; Commonwealth v. Green, supra, 232 Pa.Super. 134, 335 A.2d 493. However, the appellee did nothing to avoid the filing of separate criminal informations. On the contrary, the appellee objected'when efforts were made by the Commonwealth to amend the initial criminal information, and, then, pleaded guilty to the charge (burglary) which was the object of the amendment effort by the Commonwealth. We read such conduct by the appellee, albeit not an outward request for separate trials (because the Commonwealth had not filed and the appellee had not objected to a formal consolidation motion), as a knowing acquiescence in what appears to be an advantageous separation by resisting the amendment of Criminal Information at No. 427 of 1993, followed by a plea of guilty to the offense opposed for amendment by the appellee. The appellee’s stated reasons for objecting to the Commonwealth’s effort to amend Criminal Information at No. 427 of 1993, so as to include burglary, consisted of the benefits believed flowing from a “preliminary hearing on that charge and other procedural safeguards.” N.T. 2/22/94 at 5. Yet, at the arraignment stage of the case for burglary the appellee pleaded guilty.

We believe that such procedural maneuvering was motivated by a desire to escape prosecution for rape, involuntary deviate sexual intercourse, aggravated indecent assault and indecent assault via Criminal Information at No. 427 of 1993, which is not the type of protection intended by Section 110. Accordingly, because Section 110 is intended to prevent harassment by the prosecution, our finding that no harassment was perpetrated by the Commonwealth undermines the trial court’s grant of the appellee’s Motion to Quash and Dismiss Criminal Information at No. 427 of 1993. To do otherwise would be to sanction the defendant’s procedural expedient to avoid prosecution. This we will not do.

Order reversed.

      . Section 1.3(d) of the ABA Standards Relating to Joinder and Severance provides:
      (d) Entry of a plea of guilty or nolo contendere to one offense does not bar the subsequent prosecution of a related offense. A defendant may enter a plea of guilty or nolo contendere on the basis of a plea agreement in which the prosecuting attorney agreed to seek or not to oppose dismissal of other related charges or not to prosecute other potential related charges.
      ABA Standards Relating to Joinder and Severance, § 1.3(d) (Approved Draft 1968).
      The commentary to this section of the ABA Standards provides that if the defendant pleads guilty or nolo contendere to one charge, he has "severed the offenses — as far as their disposition is concerned — and is in no position to complain about a subsequent trial of a related offense.” ABA Standards Relating to Joinder and Severance, § 1.3(d) (Commentary), cited in Commonwealth v. Bartley, 262 Pa.Super. 390, 396 A.2d 810, 813 n. 8 (1979).


author: CIRILLO, Judge:

text:
    653 A.2d 44
    Lori GALGON v. Ralph MARTNICK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 19, 1994.
    Filed Jan. 27, 1995.

      Erv D. McLain, Bethlehem, for appellant.
    Angela Uliana-Murphy, Pen Argyl, for appellee.
    Before CIRILLO, OLSZEWSKI and HESTER, JJ.
   CIRILLO, Judge:

Appellant Ralph Martnick (“Obligor”) appeals from an order entered in the Court of Common Pleas of Northampton County, denying his petition to transfer venue from Northampton County to Lehigh County. We affirm.

Obligor and Lori Galgón (“Obligee”) had a child out-of-wedlock on December 29, 1983. Approximately one month after the child’s birth, Obligee filed a petition for support in the Court of Common Pleas of Northampton County, Domestic Relations Section. At the time of the filing, both parties resided in Northampton County.

On March 8, 1984, Obligor acknowledged paternity and the trial court entered on order of support. Over the next several years, the support order was modified upward and downward numerous times. Between 1991 and 1992, Obligor’s whereabouts were unknown, and he was adjudged delinquent in his child support payments. In 1992, after his whereabouts were discovered, Obligor was ordered to appear before the Domestic Relations Section of the Northampton County Court of Common Pleas. Obligor failed to appear and was, hence, found to be in criminal contempt of court. At a mandatory support conference in October of 1992, Obligor became irate at something that the hearing officer said and picked up a computer terminal and threw it against the courtroom wall, damaging the computer equipment. Obligor was again found to be in criminal contempt and a bench warrant was issued for his arrest.

On November 12, 1993, Obligor filed a petition for a change of venue from Northampton County to Lehigh County. At the time of the filing, Obligor alleged that both he and Obligee had been residing in Lehigh County for three years and six years, respectively. Obligor claimed that because his automobile was in disrepair, he would “suffer[ ] hardship by being forced to continue to submit to the jurisdiction of Northampton County.” He also averred in his petition that the Obligee’s use of an attorney paid by Northampton County would deprive Northampton County residents of services they so desperately need. By an order entered on January 12, 1994, the trial court denied Obligor’s petition to change venue. This timely appeal followed. On appeal, Obligor asks this court to consider whether the trial court abused its discretion in denying his petition to transfer.

It is well settled that on review of a trial court’s decision regarding venue, we will not reverse absent an abuse of discretion. Battuello v. Camelback Ski Corp., 409 Pa.Super. 642, 598 A.2d 1027 (1991). This determination, in turn, depends on the facts and circumstances surrounding each case and will not be disturbed if the trial court’s decision is reasonable in light of those facts. Id.

Support matters are generally' governed by Chapter 43 of the Domestic Relations Code (hereinafter referred to as the “Support Code”). 23 Pa.C.S.A. §§ 4301-4355. The procedure to be followed in an action under the Support Code is set forth in Chapter 1910 of the Pennsylvania Rules of Civil Procedure (hereinafter referred to as the “Support Rules”). Pa.R.C.P. 1910.1-.50. In particular, Rule 1910.1 provides that “the rules of this chapter govern all civil actions ... to enforce a duty of support, or an obligation to pay alimony pendente lite.” Pa. R.C.P. 1910.1(a).

While most of the procedural rules governing support actions are now contained in the Support Rules, a few procedural rules can still be found in the Support Code. For example, the procedures to be followed in actions concerning intrastate or intercounty support obligations can be located in either the Revised Uniform Reciprocal Enforcement of Support Act (“RURESA”), 23 Pa.C.S.A. §§ 4501-40, the Support Code, or the Support Rules. RURESA contains provisions relating to certain intrastate matters, where the parties reside in different counties of Pennsylvania. 23 Pa.C.S.A. § 4533. Because both parties in this case presently reside in Lehigh County, RURESA is not applicable. Instead, two provisions of the Support Code and Support Rules apply.

Section 4352 of the Support Code is titled “Continuing jurisdiction over support orders” and provides in pertinent part:

(a) general Rule. — The court making an order of support shall at all times maintain jurisdiction of the matter for the purpose of enforcement of that order ... without limiting the right of the obligee to institute additional proceedings for support in any county in which the obligor resides or in which property of the obligor is situated....
(c) Transfer of action. — Where neither party to the action resides or is employed in the county wherein the support action was filed, the court may transfer the matter to any county wherein either party resides or where the defendant is regularly employed....

23 Pa.C.S.A. § 4352 (emphasis added). In comparison, Support Rule 1910.8 is based on the doctrine of forum non conveniens and provides in relevant part:

(a) For the convenience of the parties and witnesses the court may transfer an action to the appropriate court of any other county where the action could have been brought at the time of the transfer.
(b) If neither party to an action presently resides and the defendant-obligor is not employed in the county where the action is pending or a support order is in effect, the court may transfer the action or order or both to any county where either party resides or where the defendant-obligor is regularly employed.

Pa.R.C.P. 1910.8 (emphasis added). The Explanatory Comment to Rule 1910.8 states that subdivision (b) authorizes the trial court to transfer an action when, with the passage of time, the parties no longer have any contact with the forum county. Pa.R.C.P. 1910.8, Explanatory Comment (citing 23 Pa.C.S.A. § 4352(c)). Pursuant to the Support Code and Support Rules, therefore, an action or order will be transferred to another county only at the discretion of the trial court.

In addition to the transfer rules above, the case law of this Commonwealth is clear that the county which entered the initial support order may retain jurisdiction to enforce that order, even after one or both parties subsequently move out of the county. Bliss v. Bliss, 343 Pa.Super. 17, 20, 493 A.2d 780, 781 (1985) (citing Commonwealth ex rel. Jones v. Jones, 272 Pa.Super. 417, 416 A.2d 526 (1979); Commonwealth ex rel. Fiebig v. Fiebig, 258 Pa.Super. 300, 392 A.2d 804 (1978); Commonwealth v. Peters, 178 Pa.Super. 82, 113 A.2d 327 (1955)). Here, although Obligee and Obligor have resided in Lehigh County for six and three years, respectively, the Court of Common Pleas of Northampton County may, in its discretion, retain jurisdiction to enforce the current support order.

First, Obligor’s allegations of hardship are frivolous. As the trial court noted in its 1925 opinion, the distance between the county seats of Lehigh and Northampton Counties is inconsequential — approximately fifteen miles. The fact that Obligor’s automobile is in disrepair does not preclude him from taking advantage of other modes of transportation. Next, in light of the Obligor’s past avoidance of process and his frequent refusal to fulfill his support obligation, we find that venue is best retained in Northampton County, where the Domestic Relations Section has spent almost ten years on, and has become intensely involved with, enforcing the various support orders. In light of these circumstances, we conclude that the trial court did not abuse its discretion in denying Obligor’s petition to transfer venue. Battuello, supra.

Order affirmed.

      . Generally, orders sustaining venue are appealable as of right only if: (1) the party benefiting from the order files within ten days after the entry of the order a election that the order shall be deemed final, Pa.R.A.P. 311(b)(1); or (2) the trial court states in the order that a substantial issue of venue is presented, Pa.R.A.P. 311 (b)(2). See Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827 (1989).
      Here, neither requirement has been met. Notwithstanding this procedural deficiency, we will address Obligor’s claim on appeal, because the order denying the petition to transfer venue was, for all intents and purposes, final. In fact, all that remains before the trial court is the pending support order.