author: POPOVICH, Judge:

text:
    553 A.2d 464
    Alma L. HAIRSTON, Appellee, v. Harold B. HAIRSTON, Appellant.
    Superior Court of Pennsylvania.
    Jan. 23, 1989.

      Edwin P. Smith, Philadelphia, for appellant.
    R. Stuart Jenkins, Philadelphia, for appellee.
    Before CAVANAUGH, TAMILIA and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the final decree of the Philadelphia Court of Common Pleas, dated May 31, 1988, which distributed the proceeds realized from the partition sale of the parties’ real estate and the rents derived from that property. Since the final decree was entered in violation of the Act of May 10, 1927, as amended, 68 Pa.S.A. § 501 et seq., we reverse and remand for an evidentiary hearing and adjudication in accordance with the guidelines of this opinion.

Instantly, the appellant, Harold Hairston, questions: 1) whether the lower court misinterpreted the comments of counsel at oral argument to be an agreement that the appellee was entitled to one-half of the rental income; 2) whether the appellee is entitled to any portion of the rental income, especially that income derived prior to their divorce; 3) whether the lower court erred in ascribing a rental income value for periods when the apartment was vacant; 4) whether the lower court, incorrectly calculated the credits due the appellant; and 5) whether the lower court erroneously based its findings upon evidence which was not properly made a part of the record.

The record reveals the following facts: During their marriage, the parties purchased the property in question on June 16, 1970. The property is a duplex apartment building, of which one side served as the marital abode. On August 26, 1970, the appellee left the marital home, and, on November 20, 1973, the appellant was granted a divorce. The appellant continued to live in one of the apartments until August of 1977, charging himself rent equal to that collected for the adjoining apartment.

In August of 1976, the appellee filed the present action for partition of marital property in accordance with the Act of May 10, 1927, P.L. 88.4, as amended in 1949, 68 Pa.S.A. § 501 et seq. In addition to her request for a statutory partition of the property, the appellee requested an accounting of the rents from August 26, 1970, the time of the parties' separation, until the time of the sale. The appellant then answered the complaint, alleging the appellee was not entitled to any rental income and counterclaiming for a sum of money equal to the mortgage payments, interest, taxes, maintenance, enhancements and other expenses associated with the property.

On January 30, 1979, the parties stipulated that the property in question was held by the parties as tenants in common and requested appointment of a Master to conduct a partition sale. The stipulation further stated that the property should be partitioned in accordance with Rules 1551-1574 of the Pennsylvania Rules of Civil Procedure. On March 22, 1979, a master was duly appointed for the express purpose of selling the property in accordance with 68 Pa.S.A. § 501 et seq. Eventually, in December of 1986, the property was sold for net proceeds of $44,406.06, after payment of the master’s fee and the appraiser’s fee.

On August 7,1987, the trial court entered an adjudication and decree nisi ordering the proceeds divided equally between the parties in strict accordance with 68 Pa.S.A. § 503, citing Lykiardopoulos v. Lykiardopoulos, 453 Pa. 290, 309 A.2d 548 (1973). Both parties filed for post-trial relief. The appellee argued that the trial court erred in refusing to apply the provisions of Rule 1551 et seq., since she sought both statutory and equitable relief in her original complaint. Thus, she was entitled to her share of the partition proceeds plus one-half of the net rental value from August, 1970, until November, 1986. Likewise, the appellant argued the trial court erroneously refused to grant equitable relief since the appellee had originally requested both statutory and equitable relief and he had counterclaimed in equity for relief. Thus, he was entitled to his share of the partition proceeds plus all claimed credits which benefited the real estate. Both parties based their equitable claims upon Rule 1570.

After a hearing on the post-trial motions, the trial court entered the supplemental opinion and final decree which are the subjects of this appeal. Therein, the trial court affirmed its earlier adjudication and decree nisi. However, the trial court found: "[Cjounsel for both parties agreed that rental value should be awarded to the [appellee], subject to deduction for expenditures by the [appellant] for mortgage (both principal and interest), taxes, insurance and improvements that enhance the value of the property.” (Trial Ct.Op., p. 2) The court further found: “The only significant point of contention was whether rental value should be calculated according to the amounts actually received by [appellant], or according to ‘fair rental value’ as determined by the [appellee]’s expert witness.” (Trial Ct. Op., p. 2) Because of its finding of an agreement, the trial court, in spite of its prior decision, determined that the appellee was entitled to one-half of the actual rental income from the time of the parties’ separation until the date of sale, plus one-half of the fair market rental value for the periods of time during-which the property laid vacant. The court also determined that the appellant was entitled to only those credits to which the parties agreed, including mortgage payments, taxes, insurance and improvements which enhanced the property’s value.

For the following reasons, we reverse the decision of the trial court and remand for entry of an order in strict accordance with 68 Pa.S.A. § 501 et seq. As previously stated, the appellee, in her original complaint, requested a partition in accordance with the Act of May 10, 1927, as amended. § 503 of the Act, in pertinent part, reads:

§ 503. Division of proceeds; liens; record of divorce decree; payments into court
The proceed of any sale had under the provisions of this act, after the payment of the expenses thereof, shall be equally divided between the parties, subject, however, to the deduction therefrom of the amount of any lien entered of record jointly against both of the respective parties, * * * and the amount of any liens entered of record against either of such parties, * * *

1927, May 10, P.L. 884, § 3; 1949, May 17, P.L. 1394, § 1. However, the parties now wish the property to be partitioned in accordance with the Rules of Civil Procedure 1551-1574 in order to allow the court to set off their recoveries by the rental income and expenditures. Under the Rules of Civil Procedure, Rule 1570 would apply to the present case:

Rule 1570. Adjudication and Decree
(a) The adjudication shall include findings of fact as follows:
* * * # # *
(4) the mortgage, liens and other encumbrances of charges which affect the whole or any part of the property and the amount due thereon;
(5) the credit which should be allowed or the charge which should be made, in favor of or against any party because of use and occupancy of the property, taxes, rents or other amounts paid, services rendered, liabilities incurred or benefits derived in connection therewith or therefrom;

Adopted April 26, 1955, effective November 1, 1955.

The lead case dealing with partitions pursuant to 68 Pa.C.S.A. § 501 et seq., is Lykiardopoulos v. Lykiardopoulos, 453 Pa. 290, 309 A.2d 548 (1973). In Lykiardopoulos, supra, our Supreme Court stated:

The statutory language is clear — only liens of record may be deducted from the proceeds of the partition sale. * * * The Act of May 27, 1927, as amended, which converts a tenancy by the entireties into a tenancy in common after a divorce and permits either party to partition the property, is in derogation of the common law and must be strictly construed. * * * The statute provides for the payment of record liens out of the proceeds of the partition sale and they are the only charges permissible.

Lykiardopoulos, 309 A.2d at 551 (citations omitted).

Therefore, only liens of record may be deducted from partition sale proceeds when the partition proceedings are brought pursuant to the Act of May 10, 1927, and those are the only charges against the proceeds permissible. See also Marinello v. Marinello, 354 Pa.Super. 471, 477, 512 A.2d 635, 639 (1986); Augelletta v. Fox, 278 Pa.Super. 1, 3-4, 419 A.2d 1325, 1326 (1980); Olivieri v. Olivieri, 364 A.2d at 365; Shoup v. Shoup, 469 Pa. 165, 364 A.2d 1319 (1976).

However, we note that in Lohmiller v. Weidenbaugh, 503 Pa. 329, 469 A.2d 578 (1983), our Supreme Court relaxed the strict interpretation of 68 Pa.S.A. § 501 et seq., and, as argued by the parties, seemingly overruled Lykiardopoulos, supra. However, in Lohmiller, supra, the court did not directly address the issue presently before us and did not expressly overrule Lykiardopoulos, supra. In fact, Lykiardopoulos, supra, has been cited as good law as recently as 1986 in Marinello, supra.

Briefly, the facts of Lohmiller, supra, are: The husband petitioned pursuant to 68 Pa.S.A. § 501 et seq., for partition of a 40% interest held by the husband and wife as tenants by the entireties in a 170 acre farm. The husband’s mother held the remaining 60% interest in the farm. The wife sought dismissal of the action by filing a preliminary objection that challenged the husband’s failure to join the co-tenant, his mother, as an indispensable party. The court dismissed the wife’s objection and ordered the 40% interest partitioned. The wife appealed, and this court affirmed. See Lohmiller v. Weidenbaugh, 302 Pa.Super. 174, 448 A.2d 583 (1982).

The wife then appealed to our Supreme Court which reversed, stating:

While the Act provides a complete remedy for the partition of property formerly held by the entireties, it is neither the sole nor exclusive remedy, (footnote omitted) Equitable partition pursuant to Pa.R.Civ.P. 1551-1574 is another means for the partition of property formerly held by the entireties, (footnote omitted) The Superior Court’s holding that Pa.R.Civ.P. 1551-1574 are inapplicable to the present case [filed pursuant to 68 P.S. § 501 et seq. ] disregards the established principles of statutory construction. Since the Act and Pa.R.Civ.P. 1551-74 relate to the same subject matter, the partition of property, the two provisions must be read in pari materia so that effect can be given to both. Pa.Stat.Ann. tit. 1, § 1932 (Purdon Supp.1983); Girard School District v. Pittenger, 481 Pa. 91, 392 A.2d 261 (1978).

Lohmiller, 469 A.2d at 580.

The Court then, applying that logic to the facts, clarified the holding of the case as follows:

When the Act and Pa.R.Civ.P. 1551-1574 are construed together, it is apparent that while a former husband may initiate an action for the partition of property formerly held by the entireties pursuant to the Act, all other co-tenants must be joined as defendants pursuant to Pa.R.Civ.P. 1553. This construction presents no conflict between the provisions and gives them both effect. Furthermore, it is obvious that appellant’s interest in the farm would be worth far less if only 40% of a co-tenant’s interest in the farm is sold, rather than the entire farm. Who would bid a fair market price to be a minority co-tenant with a stranger majority co-tenant? Moreover any successful bidder could petition the court to partition the whole property and thus accomplish that which appellee has sought to avoid. The law should never provide such a tortured route to the inevitable. It is this very result that Pa.R.Civ.P. 1553 prevents. The lower court erred in dismissing appellant’s preliminary objection.

Lohmiller, 469 A.2d at 580-581.

For our purposes, the crucial statement is “This construction presents no conflict between the provisions and gives them both effect.” Lohmiller, 469 A.2d at 580. Clearly, the provisions of Act of May 10, 1927 and Rules 1551-1574 can be read in pari materia only to the extent that they do not conflict. See City of York v. Reihart, 475 Pa. 151, 155-156, 379 A.2d 1328, 1330 (1977). Unlike the situation in Lohmiller, supra, the instant circumstances present a situation where the provisions of 68 Pa.S.A. § 501 et seq., and Rule 1570 are in direct conflict. 68 Pa.S.A. § 503 states unambiguously that only liens of record may be deducted from the partition proceeds, while Rule 1570 allows numerous expenses to be set off against the proceeds. Since the original complaint was filed pursuant to the Act of May 10, 1927, as amended, we are constrained to find that the trial court could not award rental income to the appellee nor award expense credits to the appellant, notwithstanding Rule 1570(a)(5) and the agreement between the parties.

In conclusion, we hold that the lower court must strictly follow the provisions of the Act of May 10, 1927, as amended, and divide the proceeds equally subject to deduction therefrom of the amount of any liens of record. The appellee’s claim for rental income and the appellant’s claim for expense credits must be brought in a separate action. We recognize the parties frustration with our decision; after all, it is entirely sensible to adjudicate all these claims in one action. However, the present action was filed pursuant to 68 Pa.S.A. § 501 et seq., and the parties can only raise those claims cognizable under the Act of May 10, 1927, as amended. Accordingly, we reverse and remand for final disposition of this action after an evidentiary hearing to determine if any liens of record exist.

REVERSE AND REMAND. Jurisdiction relinquished.

      . He also claimed entitlement to paid real estate taxes and water and sewer charges since such charges become liens upon the real estate when assessed, citing 53 Pa.S.A. § 7102, 7103 and 7106.

      . Here, we note that the trial court erred in its determination of the gross rental value. During the seventeen years which the appellant managed the property, "there were occasional periods when one or the other apartment was unoccupied and during those periods [appellant] ascribed no rental value for the vacant unit." (Trial Court Op., p. 4) The trial court determined that rental value of $6377.50 should be ascribed to those vacant periods. However, no evidence of fraud or misdealing on the part of the appellant appears in the record. The record indicates that the appellant in fact made every effort to fulfill his fiduciary duty to rent the property during the period in question. Obviously, apartments can not always be rented despite the good faith efforts of the party in possession. Thus, by ascribing rental value for the vacant periods, the trial court in effect unjustly enriched the appellee at the appellant's expense of $3,188.75.

      . We note that the appellant in Lykiardopoulos, supra, wanted to charge her unliquidated and unrecorded support claims against the appellee’s share, while instantly all charges relate directly to the property subject to partition. However, the cases consistently hold that no set off of any kind will be allowed against the partition proceeds. See Olivieri v. Olivieri, 242 Pa.Super. 457, 364 A.2d 361 (1976).

      . Moreover, we find that the record does not support the trial court’s finding of an agreement. On appeal, we will not disturb the findings of the trial court which are adequately supported by the record. Stauffer v. Stauffer, 465 Pa. 558, 566, 351 A.2d 236, 240 (1976); Simon v. Simon, 286 Pa.Super. 403, 405, 429 A.2d 1, 2 (1981). While it is true that, at the hearing on their post-trial motions, the parties agreed that the appellant was entitled to credit toward property expenses, the parties did not expressly agree what expenses were included in the credits. Similarly, the parties agreed that valuation of the rental property was an issue. However, nowhere in the record does the appellant expressly agree that the appellee is entitled to one-half of all rental proceeds from the partitioned property. Clearly, the trial court's conclusion is contrary to the appellant’s position throughout over ten years of litigation.


source: Caselaw Access Project

author: BROSKY, Judge: CERCONE, Judge,

license: Public Domain

text:
    553 A.2d 973
    Deborah Sue SHOCKLEY, Appellant, v. HARLEYSVILLE MUTUAL INS. CO. v. TORNETTA PONTIAC, Intervenor. Deborah Sue SHOCKLEY v. HARLEYSVILLE MUTUAL INS. CO. v. TORNETTA PONTIAC, Intervenor, Appellant.
    Superior Court of Pennsylvania.
    Argued March 3, 1988.
    Filed Dec. 23, 1988.
    Reargument Denied Feb. 28, 1989.

      Charles A.J. Halpin, III, Philadelphia, for appellant (at 1418) and appellee (at 1670).
    Peter J. Mooney, Philadelphia, for appellant (at 1670) and appellee (at 1418).
    Manfred Farber, Philadelphia, for appellee.

      Before BROSKY, BECK and CERCONE, JJ.
   BROSKY, Judge:

This is a consolidated appeal from an order denying appellant, Deborah Sue Shockley’s, and cross-appellant, Tornetta Pontiac’s, requested post-trial relief. Appellant Shockley sought recovery under an auto insurance policy issued by appellee, Harleysville Mutual Insurance Company, when the vehicle she had purchased from appellee/ cross-appellant Tornetta Pontiac was destroyed in a fire.

At issue is, (1) whether appellant held an insurable interest in the vehicle where it had been stolen from its original owner but was purchased in good faith from Tornetta; (2) whether appellant’s recovery from Tornetta for breach of warranty of title affects her ability to recover from appellee on the insurance policy. Tornetta argues, on cross-appeal, that it is entitled to subrogate itself to insurance proceeds received by appellant by virtue of paying appellant for her loss pursuant to the breach of warranty of title suit. We reverse the order appealed from to the extent it denies appellant Shockley’s requested relief.

The facts relevant to our discussion are: appellant purchased a vehicle from Tornetta Pontiac and purchased insurance coverage for the vehicle from appellee Harleysville. Sometime later the vehicle was completely destroyed in a fire. Upon investigation of the accident police discovered that the vehicle had been stolen from the original purchaser and eventually sold to Tornetta through a dealer exchange. A false title and vehicle identification plate had facilitated the seemingly legitimate sale of the vehicle.

Appellant sued Tornetta, claiming damages in theories of tort and breach of warranty of title, and subsequently obtained a default judgment. In settlement of the judgment, appellant received cash and satisfaction of her outstanding liability on the purchase. The settlement to appellant completely covered her loss. Appellant subsequently sued appellee Harleysville after appellee refused to pay her for the fire damage. Appellant sought payment under the insurance contract and Tornetta intervened seeking subrogation of any insurance proceeds. The trial court denied both appellant and Tornetta, although it awarded appellant the sum she had paid for the insurance coverage.

Appellant’s ability to recover under the insurance contract is first predicated upon there being a valid contract of insurance. This in turn, among other things, depends upon appellant having an “insurable interest” in the vehicle. We must agree with the trial court that appellant possessed such an interest. In Luchansky v. Farmers Fire Insurance Company, 357 Pa.Super. 136, 515 A.2d 598 (1986), a panel of this court recited the generally accepted rule that anyone who will derive pecuniary benefit or gain from the preservation or continued existence of the property or who will suffer pecuniary loss from its destruction has an insurable interest. It is also sufficient if the individual has a reasonable expectation of benefit from preservation of the property. Having perfect legal title is not necessary. Clearly under this authority appellant had an insurable interest in the vehicle.

To all parties involved, and up until the vehicle was discovered to be a stolen vehicle, the transactions of purchasing the vehicle and insurance coverage on it were indistinguishable from any other purchase transactions. Appellant paid valuable consideration for the vehicle and stood to suffer the normal consequences should it be destroyed. The loss of its use and the dilemma of replacing it or its services. The fact that it had been stolen from its original owner affected appellant’s right of possession and enjoyment only with regard to the true owner as her title as a bona fide purchaser for value was superior to all but the true owner’s. Had the stolen nature of the vehicle remained undiscovered, appellant presumably would have continued using the vehicle and making payments on it. Furthermore, upon its destruction, we must assume, the appellee would have paid its value to appellant pursuant to the terms of the insurance contract. Consequently, we conclude that a bona fide purchaser of a stolen vehicle has an insurable interest in that vehicle. Having concluded that appellant had an insurable interest in the stolen vehicle and thus had a valid contract of insurance we must determine whether there were grounds to relieve the insurer of its obligation under the contract.

The essence of an insurance contract is that the insurer, for the appropriate premium payment, will compensate the insured for a covered loss upon its occurrence. If there is an existing and valid contract of insurance the insurer’s obligation is triggered by the occurrence of a loss of the type covered under the policy. There is no doubt that the loss in question here, a fire loss, is of the type contemplated in, and thus covered under the policy. Consequently, appellee had an obligation to pay for the fire loss upon its occurrence under the terms of the insurance contract, unless, however, one of the terms of the contract excuses them from payment. Appellee points to the subrogation provision of the insurance contract to excuse its obligation to pay. However, proper application of the principle of subrogation will not excuse that obligation.

The principles of subrogation will allow an insurer who has indemnified an insured for a loss to recover payments made to the insured by the party responsible for that loss to the same extent or amount that the insurer has paid the insured. A logical extension of this principle will relieve the insurer of its obligation to indemnify a loss, in cases where the insured has recovered from the responsible party prior to the insurer’s payment, to the extent and amount that monies have already been paid to the insured for that loss. In both cases the insured must recover for the same loss for which the insurer is being asked to pay or has already paid the insured. Allstate Insurance Company v. Clarke, 864 Pa.Super. 196, 527 A.2d 1021 (1987).

In this case, appellee is being called upon to pay for a fire loss and has a right to avoid payment to the extent that appellant has received any payments for that fire loss. Appellee, as an insurer, is not entitled to cite payments to the appellant, as the insured, for losses other than the fire loss to avoid payment of its obligation under the contract, nor would appellee be entitled to subrogate itself and assert a claim to payments by others to the appellant for a loss other than that for which the appellee has paid the appellant. Clarke, supra. In other words, although the insurer may “stand in the shoes of the insured” upon paying a claim, it does so only to the extent and with regard to the loss it covered. The insurer does not magically acquire every conceivable right of the insured by virtue of meeting its contractual obligation. As appellee is being asked to pay for a fire loss the subrogation right relates to monies received by appellant for a fire loss. Clearly, the monies received by appellant from Tornetta do not relate to Tornetta’s liability for the fire damage, but instead, for a breach of warranty of title.

Consequently, there are no grounds for appellee to be subrogated to the proceeds of appellant’s breach of warranty of title action against Tornetta. However, upon appellee’s payment to appellant for the fire damage, appellee will acquire subrogation rights as to that payment and if the individual(s) responsible for the fire damage is ascertained, the right to recover against him would belong to appellee. In contrast, and quite ironically, if appellee’s logic is utilized and the individual responsible for the fire damage is found, he or she would be immune from liability to appellant or appellee for the fire damage because appellant has already been compensated from Tornetta.

We have further reason to find appellee’s subrogation argument unconvincing. Additional to the fact that appellant’s recovery was for a different loss than that being claimed under the insurance contract is the fact that the recovery was for a loss that appellee apparently did not even extend coverage for. For appellee to make a convincing argument on subrogation principles it follows that not only should appellee have either paid appellant for the same loss she has independently recovered for, or that appellee is being requested by appellant to pay for such a loss, but also that appellee should have provided coverage for the type of loss appellant has been successful in recovering for as well. We hardly believe that appellee would have provided any kind of coverage had appellant suffered a loss related to a lack of good title. For instance, had the stolen nature of appellant’s vehicle been discovered and the vehicle repossessed by its owner, appellant would have suffered a title related loss. Had appellee paid for this loss then it would have had an equitable right or subrogation right to monies received from appellant’s breach of warranty of title action against Tornetta. We are rather skeptical that appellee would have paid such a claim by appellant. We further suspect that appellee would have vehemently argued that coverage did not apply for such a loss under the policy. An affirmance would not only allow a subrogation right of sorts against monies received by appellant for a loss different than that which appellee is being asked to cover, it would also allow subrogation against monies received by appellant for a loss the type of which appellee had not even extended any insurance coverage to appellant for. This contravenes the entire concept of subrogation.

Undoubtedly, the particular facts of this case are making an appropriate disposition and analysis difficult as they are quite unusual. For instance, one must question whether Tornetta, at the time of appellant’s suit, was legally obligated to appellant to the extent appellant recovered in settlement. Tornetta essentially paid the full value of the automobile to appellant. Inasmuch as the greatest extent of appellant’s loss was related to the fire, with which Tornetta had no connection, as opposed to a breach of warranty of title, it is questionable whether Tornetta was legally liable to appellant, at that time, for the full value of the vehicle. Tornetta would not have been liable to appellant had the car been passed with good title and then destroyed by fire due to no fault of Tornetta’s. Consequently, when the stolen vehicle is purchased and then destroyed by fire, Tornetta would not seem to be liable for that loss either as it was, in reality, a loss caused by a fire not a loss caused by a deficiency of title. In contrast, if appellant were forced to pay the value of the vehicle to the true owner, the fire then being simply an event which leads to the discovery that the vehicle was stolen, appellant would have suffered a title related loss for which Tornetta would be liable. The point of this discussion is that it is not at all clear whether Tornetta was legally liable to pay the sum it in fact paid to appellant, at least under circumstances present at that time. The fact that appellant, through good fortune or some sort of legal bargaining prowess, gained a settlement to which possibly she was not legally entitled will not obviate appellee’s contractual obligation to appellant.

Another interesting question and potential problem in a case like this, although to this point not an issue here, relates to the priority of claims to the insurance proceeds. That is, assuming appellant is successful in recovering against appellee, does the true owner of the vehicle have a claim to the insurance proceeds, and if so is this claim superior to that of appellant’s; or alternatively, can appellant be held liable to that extent to the true owner of the stolen automobile?

Appellant, as a bona fide purchaser of the stolen vehicle, held a title or right of possession in the vehicle superior to all but the true owner. It seems clear that, had it been discovered that the vehicle was stolen prior to its destruction, the rightful owner would have had a right to replevin or otherwise repossess the vehicle. See, Petition of Hennessy, 343 Pa.Super. 293, 494 A.2d 853 (1985); Justice v. Fabey, 541 F.Supp. 1019 (E.D.Pa.1982). It is less clear whether, where as here, the vehicle is destroyed, the rightful owner has a right to insurance proceeds directly traceable to, and in replacement of, the vehicle, or whether the rightful owner could recover a sum representing the vehicle’s fair market value from the bona fide purchaser. Of course, if such is the case, then appellant would experience a “double recovery” only if the rightful owner, Aetna Casualty, in this case, by virtue of paying the original owner upon its theft, chose not to pursue this course of action. Even this, like Tornetta’s possible overpayment to appellant, would be a matter of good fortune for appellant rather than something which would relieve appellee of its obligation to pay under the insurance contract.

It must be remembered that appellee is in the business of insuring against loss. It accepted a premium from appellant in exchange for a promise to indemnity her upon the occurrence of certain losses. The premium it charged was ostensibly set in accordance with prior claim history and corresponded with the risk appellee was assuming. The stolen nature of the vehicle did not change the risks involved or insured against, and should not affect appellant’s rights with respect to appellee.

We conclude appellee was erroneously relieved of its contractual obligation to indemnify. We have also reviewed Tornetta’s claim for subrogation of the insurance proceeds but find no merit in it.

Accordingly, we reverse the order appealed from to the extent it denies appellant’s requested relief. We also reverse the award to appellant of a sum representing her premium payment to Harleysville. The order is affirmed with regard to denying Tornetta’s claim for subrogation.

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

CERCONE, Judge,

concurring and dissenting:

I am in complete agreement with the majority that a bona fide purchaser for value of a stolen automobile has an insurable interest in the vehicle. I also agree with the majority that the purpose of an insurance contract requires an insurer who has accepted a premium and agreed to cover a particular risk to compensate an insured for a covered loss upon its occurrence. However, I must respectfully disagree with the determination by the majority that where such an insured sustains a single loss, she is entitled to a double recovery.

Reduced to fundamentals, property insurance is an agreement to indemnify against economic loss in a case where property is damaged or destroyed. Commonwealth ex rel. Schnader v. Fidelity Land Value Assur. Co., 312 Pa. 425, 167 A. 300 (1933); First Nat. Bank of Jessup v. Cappellini, 149 Pa.Super. 14, 26 A.2d 119 (1942). A policy of fire insurance is a contract of indemnity which does not pertain to the property as such, but rather covers the interest of the insured in the property. In re Gorman’s Estate, 321 Pa. 292, 295, 184 A. 86, 87 (1936). See Spires v. Hanover Fire Insurance Co., 364 Pa. 52, 70 A.2d 828 (1950), overruled on other grounds by Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983). The object of the property insurance contract is not to provide a gain for the insured, but only to compensate him for an economic loss. Insurance Co. of North America v. Alberstadt, 383 Pa. 556, 119 A.2d 83 (1956). Thus, where there is no economic loss by virtue of recoupment against a third party, there is no right to an additional recovery against the insurance company. The fact that an insurance carrier may be in an apparently strong financial position and able to absorb a loss, does not justify creating liabilities. Rothman v. Fillette, 503 Pa. 259, 469 A.2d 543 (1983).

In the instant ease, the extent of the economic detriment suffered by appellant was contested. Therefore, the learned lower court was correct in admitting into evidence the monies received by appellant from Tornetta Pontiac in full recovery of her losses. The search for the truth of an issue requires that if evidence is logically probative, it should be received unless there is some distinct ground for refusing to hear it. See Clark v. Essex Wire Corp., 361 Pa. 60, 63 A.2d 35 (1949). A trial court’s paramount concern is to allow a jury to hear all evidence relevant to the issue being decided, excluding only that evidence which is unduly prejudicial. Payments from the tortfeasor to the injured party may, as a general rule, be shown in mitigation or reduction of any recovery. Christy v. Darr, 78 Pa.Commw. 354, 467 A.2d 1362 (1983). Appellant’s loss was directly at issue in the instant case, and any evidence presented relevant to that issue was admissible.

It is well settled that the ultimate measure of compensatory recovery is not affected by the form of action in which a plaintiff seeks his remedy. Hetzel v. Baltimore & Ohio Railroad Co., 169 U.S. 26, 18 S.Ct. 255, 42 L.Ed. 648 (1898). Although a plaintiff may select a form of action when more than one is appropriate to the facts, he cannot, by so doing, change the measure of his recovery from that fixed by the settled law as flowing from the same facts. Although plaintiff may sue in two separate causes of action, he may only obtain one recovery for a single loss and this is so even though the recovery sought is against two different persons. See Rossi v. State Farm Auto. Ins. Co., 318 Pa.Super. 386, 465 A.2d 8 (1983). Evidence which bears on any material issue is relevant even though it also bears on a non-material issue. In the case of Orlando v. Herco, Inc., 351 Pa.Super. 144, 505 A.2d 308 (1986), evidence relating to the manner of preparation of allegedly unmerchantable food was challenged as irrelevant to an action for breach of warranty of merchantability. The plaintiff argued that the evidence related only to negligence, which was not an issue in the case and, therefore, should have been excluded. This court rejected plaintiff’s argument because the evidence pertained to a material issue, that being whether the food was fit for human consumption.

In the case sub judice, appellant argues that evidence of her recovery against Tornetta Pontiac is irrelevant because that recovery was based on tort and not on contract. Such reasoning is not valid because the important issue in the case was the precise extent of appellant’s economic loss through the destruction of her car. The judge, sitting as a jury, properly heard evidence on this matter and properly held appellant was not entitled to double recovery for a single loss.

For the above reasons, I would affirm the lower court.

      . Although there appears to be no cases in Pennsylvania answering this question, the case of Duncan v. State Farm Fire and Casualty Co., Tenn., 587 S.W.2d 375 (1979), suggests liability may attach to the bona fide purchaser. When considering the question of insurability of a stolen vehicle, the Tennessee Supreme Court stated:

        Clearly, such a purchaser stands to benefit from the continued existence of such a vehicle because of the continued availability of its use to him unless and until the true owner reclaims it; and, he runs the risk of pecuniary loss by its destruction not only because of the loss of its use, but also because, as a constructive bailee of the property, he may incur liability to the true owner for the value of the vehicle, in the event the true owner makes a claim for its return and he is unable to make delivery because it is destroyed.

      . The two preceding sections of the opinion, we would hope, illustrate the fact that, contrary to appellee’s assertions otherwise, there have indeed been two distinctly different losses. One loss could be traced to the theft of the vehicle, the other to its destruction by fire. Both occurrences can be shown to have resulted in an economic loss, although the bearer of the loss could conceivably change or vary depending on how the various parties proceed.
      When a vehicle is stolen the owner suffers an economic loss due to the loss of use. Unless the vehicle is recovered in substantially the same condition as it was when stolen, and before being resold for value, there will remain a loss even if the loss is shifted to another by virtue of an insurance contract or other forms of compensation or indemnification. The same can be said to occur when the vehicle is destroyed. In such circumstances, there is a loss of use without possibility of recovery. When a vehicle is stolen then later destroyed, two economic losses occur (assuming value was given by the subsequent purchaser). This is because two individuals have paid value for the use of the vehicle and both are subsequently deprived of the use. The original owner suffers a loss of use as does the later purchaser. Again, the losses may shift depending upon subsequent events, but there will remain two losses, or, perhaps alternatively stated, a double loss.
      In the present case, a definite economic loss was experienced when the vehicle was stolen. Although the original owner was compensated by his insurer the loss did not disappear, it was merely shifted to the insurer. (Nor would the loss have disappeared had the vehicle been recovered in good condition from appellant, it would have merely been shifted to her.) The loss traceable to the fire was, apparently, born by Tornetta and shifted to NADE, the dealer’s exchange from which Tornetta purchased the vehicle, and possibly shifted again to an insurer of NADE’s. Regardless of how we realign the responsibility of bearing the losses, the fact will remain that two losses occurred. The best case scenario would align the losses with the parties who could be said to have, perhaps more than the others, assumed that risk of loss.
      In the present case there was what could be called a loss related to a theft and/or a defective title and a loss caused by a fire. Anytime an individual purchases an item he could be thought of as assuming a risk of bad title. An individual can reduce that risk, ostensibly, by receiving a warranty of title and further by purchasing from an individual or entity which will likely be able to honor the warranty. This title-theft related loss, therefore, in a best case scenario, should be borne by NADE or their privies since somewhere in that custodial chain the vehicle was acquired with, and passed on with, defective title and because the stolen vehicle was later discovered, albeit in an unusable state, a circumstance which normally would enable the vehicle owner to recover. The fire loss was assumed, in a sense, by appellant but, of course, was shifted to appellee by virtue of purchasing insurance coverage.


author: DEL SOLE, Judge: CAVANAUGH, Judge,

text:
    553 A.2d 979
    In re T.D. Appeal of D.D., Natural Mother of T.D., a Minor Child. Appeal of T.D.
    Superior Court of Pennsylvania.
    Argued April 26, 1988.
    Filed Dec. 29, 1988.

      Marian C. Nowell, Philadelphia, for D.D., appellant.
    Samuel B. Magdovitz, Philadelphia, for T.D., appellant.
    M. Robin Maddix, Philadelphia, for appellee.
    Before CAVANAUGH, WIEAND and DEL SOLE, JJ.
   DEL SOLE, Judge:

This is an appeal from an order adjudicating the Appellant minor to be dependent. We reverse.

The facts as developed on the record are the following. Appellant T.D., a female minor, was born in 1976. Appellant D.D. is the child’s mother. During the course of her young life, T.D. has been the victim of two sexual assaults, the first occurring at the age of three and the second occurring at the age of eight. She has also suffered through the accidental death of a younger sister. At a detention hearing held on June 20, 1986, the court observed that there was a need for some supervision on the part of the Department of Human Services (DHS). However, finding that the circumstances did not warrant removing the child from the custody of her mother, the court concluded that Services to Children in their own Home (SCOH) would be the appropriate alternative:

... [Tjhere is a clear need for some SCOH services based upon what this court has heard ... We can make this a DHS referral at this stage of the game. DHS will supervise. The child will be returned to the natural mother ... In the mind of this Court that parent has been reluctant to provide such, and, in view of that, the Court believes that this child is at risk. In view of the effects of the kind of risk — that is to say, this risk has the potential of interfering with the child’s full life — it is better off to have this issue addressed in this sense of if it does not exist, there would be no need for continued therapy. On the other hand, if it does exist, there is a need to commence therapy as soon as possible. In the mind of this Court the risk is of such a nature as to require that it be addressed as soon as possible.

(N.T. 6/20/86 at 48-49)

Thereafter in January of 1987, an adjudicatory hearing was held at which time the court heard testimony from various witnesses, including T.D.’s principal, a schoolteacher, and several individuals associated with the DHS. Evidence adduced at the hearing indicated that Appellant mother had failed to fully comply with the SCOH requirement of regular therapy visits for T.D. In addition, both the principal and teacher testified concerning various behavioral problems which the child had manifested at school, noting that this constituted a serious departure from T.D.’s previous conduct. Finally, the court was able to question Appellant mother following examination by counsel. At the conclusion of testimony and closing arguments, the court made the following observations:

Therefore, this Court is going to adjudicate this young lady to be dependent, and the Court will follow through with requiring supervision on the part of the Department of Human Services. However, the Court believes there is a clear and present threat of injury to this youngster and the injury is of such a serious nature — that is to say, although it may not be conspicuous, the Court believes mental illness exists and that mental illness may not be clear and conspicuous to those who may be in close contact. On the other hand, the effects of sexual assault are indelible and, therefore, have to be addressed as soon as possible.

(N.T. 1/6/87 at 116-117).

In accordance with the above, the court made an adjudication of dependency and ordered that SCOH services be continued. The appellants have taken an appeal therefrom.

The following issues have been presented for our consideration:

1) Did the lower court err in denying Appellants’ Motion to Dismiss the original petition because it stated only allegations of abuse rejected at the detention hearing and failed to allege facts which would support a finding that the child was without proper parental care or control?
2) Did the lower court err in denying Appellants’ Motion to Dismiss the Amended Petition because the only new ground alleged was that Ms. D. failed to cooperate with Children and Youth agency supervision without alleging that the child was harmed thereby?
3) Did the lower court violate the procedural requirements of the Juvenile Act and Appellants’ due process rights when it based its finding of dependency upon the child’s alleged need for therapy concerning prior incidents of sexual abuse even though that ground had not been stated in the original petition or the amended petition?
4) Did the lower court err in adjudicating the child dependent?
A. Did the lower court err in finding the petitioner presented clear and convincing evidence that the child was without proper parental care or control?
B. Did the lower court err in finding that the petitioner proved at the adjudicatory hearing that the child suffered from “post-rape syndrome”?

After a comprehensive review of the record and controlling authority, we reverse the trial court’s adjudication of T.D. as a dependent child. We hold that such interference in this family is unwarranted because the Commonwealth has failed to show by the requisite clear and convincing evidence that T.D. is without “proper parental care and control, subsistence, education as required by law, or other care or control necessary for [her] physical, mental or emotional health, or morals.” 42 Pa.C.S.A. § 6302 et. seq.; In Interest of Theresa E., 287 Pa.Super. 162, 172, 429 A.2d 1150, 1155 (1981); See, 42 Pa.C.S.A. § 6341(c).

Our court has stated that it is “a very serious matter indeed to allege that a child is a dependent child and thereby invite the intervention of agencies of the state into a parent’s care of that child.” In Interest of Theresa E., supra, 287 Pa.Super at 171, 429 A.2d at 1155. In this decision to intervene the State must balance its interest in protecting and caring for minor children against its interest in protecting and caring for one of our most important institutions, the family. In this regard, this court has frequently cited the following policy statement:

On the one hand, the State has an interest in requiring parents to respect the duty they owe their children. On the other hand, in requiring that respect, the State must be cautious not to intrude upon the family to the point of weakening it as one of our most important institutions. The way to resolve this problem is to impose restraints upon the State, not to prevent its officials from reacting to a child’s plight, but to prevent them from overreacting. No doubt one official will be sensitive and wise, but another will be a self-righteous prig; and that is the one we must guard against, for backed by the State, his power may overwhelm any parent. In the Interest of LaRue, 244 Pa.Super. 218, 225-26, 366 A.2d 1271, 1274-75 (1976), cited in, In Re Custody of Frank, 283 Pa.Super. 229, 237-38, 423 A.2d 1229 (1980).

Because a finding that a child is without proper parental care is very serious, perhaps coloring the child’s future attitude toward and relationship with a parent, the court must base its decision on clear and convincing evidence of parental failure to care for the child and whether such care is immediately available. In Re Barclay, 321 Pa.Super. 417, 422, 468 A.2d 778, 781 (1983); In Re Custody of Frank, supra. 283 Pa.Super. at 240, 423 A.2d 1229.

Our standard of review in cases of dependency is broad. In Re Frank W.D., 315 Pa.Super. 510, 517, 462 A.2d 708 (1983). We must find clear and convincing evidence in the record that T.D. was without proper parental care and control. The trial court bases its finding of dependency on the mother’s failure to fully comply with the SCOH requirement of regular therapy visits for T.D. The trial court held that the child was “at risk” to develop depression and other mental problems because of the sexual abuse she had experienced, and therefore therapy and counselling were required. (Trial Court Opinion at 9-10).

In contrast to the trial court’s view, our review of the record leads us to believe that these conclusions are based on a very shaky evidentiary edifice. This edifice is built on conjecture and on subjective reactions to heinous incidents of sexual abuse of a young child, which happened outside the control of the mother, instead of the required comprehensive and penetrating inquiry into the circumstances of T.D.’s home life, and the ability of the mother to care for her child. In Re Custody of Frank, 283 Pa.Super. 229, 244-45, 423 A.2d 1229 (1980); In Interest of H.B., 293 Pa.Super. 109, 115-16, 437 A.2d 1229 (1981).

For instance, the testimony of Mr. Sherwood Nichols, a family therapist with Hall Mercer in Philadelphia, was introduced to establish the need for therapy concerning rape trauma syndrome. Mr. Nichols’ contact with T.D. and her mother was minimal, he only saw her twice, and although he was aware of the incidents of sexual abuse, he stated that the primary issue for the therapy was grief over the accidental death of T.D.’s younger sister. He states that his conclusion that “T.D. would benefit from some kind of counselling” was based on the testimony that he had heard at the trial. (N.T. at 67-70, 1/6/87). He had not personally observed any harmful psychological effects from the incidents of sexual abuse (N.T. at 73, 1/6/87), and in fact, had decided at the intake interview to concentrate on the issue of grief, although aware of the abuse. Clearly, his evidence lacks serious merit in regard to whether there was any apparent necessity for counselling pertaining to the sexual abuse.

Next, there is testimony from Mr. Ingo Schamber who, as an employee of the Department of Human Services, had “case management” responsibilities in T.D.’s case. Mr. Schamber had absolutely no personal conduct with T.D., and yet testified to the need for therapy in this case while admitting that not every case of sexual abuse results in an ongoing need for some sort of therapy. (N.T. at 34, 1/6/87). Thus, of these two witnesses, one admittedly had no personal contact with T.D. and the other based his opinion on in-court testimony.

Apart from Mr. Erskine Hicks, who counselled T.D.’s mother, not T.D. herself, no other expert witnesses testified. Thus the trial court relied on the expertise of two witnesses, neither of whom is a psychologist or psychiatrist, to show that T.D. was “at risk” of potentially serious psychological harm because of the mother’s failure to take T.D. to counselling. On this proof it can not be said that the requisite showing of harm resulting from the absence of proper parental care or control necessary for mental or emotional health has been made. In re Custody of Frank, 283 Pa.Super. 229, 239, 423 A.2d 1229 (1980).

This Court has urged the trial courts to make a comprehensive and searching inquiry in these cases. It may not find a child dependent absent clear and convincing evidence which has has been defined as testimony that is direct and unambiguous as to enable the trier of fact to come to a sure determination. In re Frank W.D., 315 Pa.Super. 510, 462 A.2d 708 (1983). Far from a comprehensive and searching inquiry, we have precious little evidence of the parenting ability of T.D.’s mother: no reports of home visits, nor professional evaluations of the home environment. While the record shows testimony from one teacher and a principal concerning disturbing trends in T.D.’s behavior, we lack evidence from involved professionals, which is normally generated by a comprehensive inquiry, not only of T.D.’s psychological condition but of the home situation and the mother’s ability to care for her child.

Such information is necessary in determining dependency. For instance, in In re Breisch, 290 Pa.Super. 404, 434 A.2d 815 (1981), a case in which the child was found dependant because of the parent’s failure to provide therapy for her son’s severe speech disability, a full picture of the child’s problems as well as the home environment was developed. Speech pathologists periodically evaluated the child’s speech development; there was a Home Visitor reporting on her attempts to teach parenting skills to this parent of a child (like T.D.) with special needs, and testimony from caseworkers who visited the home regularly and reported on a chaotic and harmful home life.

This court has stated that proper parental care, “is that care which (1) is geared to the particularized needs of the child and (2) at a minimum is likely to prevent serious injury to the child.” In Interest of Pernishek, 268 Pa.Super. 447, 458, 408 A.2d 872, 878 (1979). Here we lack clear evidence of the child’s particularized needs and of the particular harm against which T.D. needs protection. The court has the power to order home visits while the dependency action is pending, and in fact is encouraged to do so as part of its obligation to make a comprehensive inquiry. However, in failing to offer that information on the record, the Commonwealth has not proved the existence of either particularized needs or a particular harm to be guarded against.

Under the Act, a court may not declare dependency and order state supervision solely because it would be in the child’s best interest to have therapy. Much more must be shown. The Legislature has sought to achieve the proper balance between a parent and the State by requiring that a specifically high quality of proof be forthcoming. In re Custody of Frank, 283 Pa.Super. 229, 241, 423 A.2d 1229 (1980). As such proof was not forthcoming in this case, we reverse the trial court’s finding of dependency.

ORDER REVERSED. JURISDICTION RELINQUISHED.

CAVANAUGH, J. files a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

This is an appeal from an order entered in the Court of Common Pleas of Philadelphia County, adjudicating the appellant minor to be dependent. I disagree with the majority’s disposition of this matter and would instead affirm the decision of the court below.

I accept the majority’s statement of the facts and issues raised in this case and would adopt them as part of my dissent.

The Juvenile Act defines a dependent child in pertinent part as one who “is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals;” 42 Pa.C.S.A. § 6302(1) (Definition of “Dependent Child”) It is beyond peradventure that a finding of dependency must be supported by clear and convincing evidence. Matter of Yeager, 309 Pa.Super. 491, 495, 455 A.2d 717, 719 (1983). (citations omitted). See also Fallaro v. Yeager, 364 Pa.Super. 408, 420, 528 A.2d 222, 228 (1987) (“[T]he court must be convinced by clear and convincing evidence that the child fits into one of the categories established in section 6302 before it can adjudicate the child as dependent.”) Clear and convincing evidence may be defined as “testimony that is so direct and unambiguous as to enable the trier of fact to come to a sure determination, without conjecture, of the truth of the exact facts at issue.” In Re Frank W.D., 315 Pa.Super. 510, 516, 462 A.2d 708, 711 (1983). Moreover, the standard to be applied in determining whether a child is dependent is not “best interests”, rather, it must be shown that the child is “presently without proper parental care and, if so, whether such care is immediately available.” In Re Barclay, 321 Pa.Super. 417, 422, 468 A.2d 778, 781 (1983) (quoting In the Interest of Pernishek, 268 Pa.Super. 447, 458, 408 A.2d 872, 877-878 (1979)). Finally, interference with the rights of a legal custodian will not be sanctioned in the absence of an adjudication of dependency. See 42 Pa.C.S.A. § 6341(a). As noted therein:

§ 6341. Adjudication

(a) General rule. — After hearing the evidence on the petition the court shall make and file its findings as to whether the child is a dependent child, or if the petition alleges that the child is delinquent, whether the acts ascribed to the child were committed by him. If the court finds that the child is not a dependent child or that the allegations of delinquency have not been established it shall dismiss the petition and order the child discharged from any detention or other restriction theretofore ordered in the proceeding.

(emphasis added)

The appellants first contend that the lower court erred in failing to dismiss the original dependency petition filed by the DHS since it failed to allege facts which establish that T.D. was without proper parental care or control. However, a review of the petition reveals the fallacy of such an assertion. Following the detention hearing, the DHS filed a petition which included allegations that the child had been sexually abused on two separate occasions, that her mother had refused to cooperate with the Department, and that there was evidence of physical abuse on D.D.’s part. The petition, which was filed on September 17, 1986, went on to state that the child had not received medical treatment for an eye injury which she had sustained. Subsequent to the filing of the dependency petition and pursuant to the court’s direction, amendments were filed in which the DHS again alleged that appellant mother had failed to comply with the required therapy schedule. I consider the foregoing to be sufficient grounds in support of the finding that D.D. failed to provide “proper parental care or control” in violation of 42 Pa.C.S.A. § 6302. Even if it could be said that the original petition was incomplete, the amendments clearly allege a pattern of conduct on the part of appellant mother that was detrimental to her child. I do not believe we can allow retrospective procedural imperfections to defeat the court’s obligation to provide a sound remédy for the demonstrated needs of a child.

At both the detention and adjudicatory hearings there was ample evidence to suggest that T.D. was emotionally disturbed and manifested such disturbances through unacceptable conduct. Whereas the child had previously had a reputation for being a pleasant little girl who consistently maintained an excellent academic record, the testimony indicated that she had suffered a significant change in behavior. In one incident, T.D. reacted violently to a normal reprimand from the principal of her school. In another incident, she demonstrated bizarre behavior by walking down a hallway in the company of a schoolfriend with a piece of paper held over her buttocks. Witnesses who had been recognized as experts in the area of sexual abuse indicated that T.D. would benefit from therapy. Mr. Inigo Schamber, a DHS supervisor who had been involved in the case, observed that, “Based on the history of this case, the Department would recommend that [T.D.] be adjudicated dependent and that she have DHS supervision and therapy provided with Hall Mercer, and that mother cooperate with SCOH services.” (N.T. 1/6/87 at 28) Although Mr. Schamber admitted that he had never had any personal contact with appellant minor, it was noted that he was involved in over one hundred cases of child abuse (specifically rape or sexual abuse) as either a worker or a supervisor with the Department. Sherwood Nichols, a family therapist who holds a Bachelor’s Degree in psychology and a Master’s Degree in counseling, testified that he had experienced some difficulty in setting up appointments to meet with appellant mother, noting that “I believe that she was working or something to that effect, or she just didn’t schedule an appointment.” (N.T. 1/6/87 at 69) The witness voiced an opinion that T.D. would benefit from “some kind of counselling”, adding that this was based on testimony “and some of the things that I have learned since being here.” (N.T. 1/6/87 at 70).

This court has defined rape trauma syndrome in the following manner:

Rape trauma syndrome is one kind of post-traumatic stress disorder. The essential feature of post-traumatic stress disorder is the development of characteristic symptoms after a psychologically traumatic incident that is usually beyond the range of ordinary human experience. Those symptoms typically involve re-experiencing the traumatic incident, numbing the responsiveness to, or lessened involvement with, the external world, and a variety of autonomic, dysphoric or cognitive symptoms.

Commonwealth v. Pickford, 370 Pa.Super. 444, 450 n. 2, 536 A.2d 1348, 1351 n. 2 (1987) (citations omitted). From the foregoing it is apparent that rape trauma syndrome has received some recognition in this Commonwealth. Moreover, while there is a divergence of opinion as to the admissibility of testimony regarding the syndrome in various situations. See Commonwealth v. Gallagher, 353 Pa. Super. 426, 510 A.2d 735 (1986) (Cavanaugh J., dissenting) vacated and remanded 519 Pa. 291, 547 A.2d 355 (1988), we are concerned herein with the issue of whether such a condition exists and could conceivably pose a threat to the victim if left untreated. From the testimony submitted at the adjudicatory hearing, it is my belief that therapy is warranted in the case sub judice. This being so, appellant mother’s failure to avail T.D. of professional counseling constitutes a threat to the child as contemplated by the Juvenile Act. Accordingly, I- would conclude that both the original and amended dependency petitions allege sufficient facts in support of the finding that D.D. failed to provide proper parental care and control to her child. Furthermore, it was not necessary that the petition allege that D.D.’s failure to cooperate harmed her daughter. Where there was evidence to demonstrate that services which would have been beneficial were not administered to T.D., the lower court was justified in concluding that the child was suffering some degree of harm. In light of the above, I find no merit in the appellants’ first and second claims.

Appellants next contend that they were denied due process insofar as the original and amended petitions did not contain the allegation that therapy was needed in connection with the incidents of sexual abuse. This claim is totally devoid of merit. Both petitions indicate that T.D. was the victim of sexual abuse. Both petitions note that appellant mother failed to cooperate with the DHS. While the first petition was primarily concerned with allegations of physical abuse on D.D.’s part, the amended petition contains the following language:

On November 5, 1986 following an in-chambers discussion of DHS’s recommendations regarding [T.D.’s] need for counseling following two rapes and the death of a sibling, Judge Braxton ordered [D.D.] to cooperate with SCOH services and to attend therapy sessions.
Since November 5, 1986, [D.D.] has failed to cooperate with Judge Braxton’s Order. [D.D.] kept one (1) appointment with the SCOH worker, Mr. Hicks. The one appointment was on November 19. At the November 19 meeting [D.D.] was cooperative but alluded to the fact that her counsel had let her to believe that she did not need to cooperate fully because the Court’s order was going to be appealed.

As this court noted in In Interest of M.B., 356 Pa.Super. 257, 514 A.2d 599 (1986), affirmed 517 Pa. 459, 538 A.2d 495 (1988), “Due process requires that the litigants receive notice of the issues before the court and an opportunity to present their case in relation to those issues.” Id., 356 Pa.Super. at 260, 514 A.2d at 601. Since I believe that the appellants were adequately apprised of the issues in question, I would find that their claim cannot be sustained on these facts.

The appellants’ final claim is a two-part challenge to the lower court’s adjudication of dependency. For the reasons discussed in regard to the appellants’ first and second claims, I would conclude that the lower court appropriately determined that T.D. should be adjudicated a dependent. In light of the foregoing, there is no merit to this claim.

      . Subsequent to the detention hearing of June 20, 1986, but prior to the adjudicatory hearing of January 6, 1987, two additional hearings were held on November 5, 1986 and December 12, 1986. At the November 5th proceeding, both T.D. and D.D. were given an opportunity to testify, and counsel for appellant-mother made a motion to dismiss on the grounds that there were "insufficient factual allegations before the court to invoke the court’s jurisdiction ...” (N.T. 11/5/86 at 8) In response to the allegations of lack of jurisdiction, the court provided for the filing of the amendments, stating as follows: "What this court is going to do is allow the County time to file the appropriate petitions ..." (N.T. 11/5/86 at 9). The December 12, hearing dealt with a motion for reconsideration which was ultimately denied, and the matter was rescheduled for a dispositional hearing. In addition, counsel for the DHS withdrew a motion to quash that had been filed previously. Although it would appear that the November 5th hearing had been listed as an adjudicatory hearing and testimony from the appellants was heard at that time, we will refer to the January 6, 1987 hearing as the actual adjudicatory proceeding since most of the testimonial evidence was provided on that date.

      . We have omitted mention of the various other grounds on which a child could be adjudicated dependent pursuant to 42 Pa.C.S.A. § 6302 as none are applicable in the case at bar.

        . According to Soledad Gillespie, principal of the school attended by T.D.

        ... [T.D.] was essentially a child who loved school and loved learning and took great pride in being one of the brightest in the class. She still, obviously, has that intelligence and could excel should she be able to bring all of her energy to bear on it; but [T.D.] began to be more resistant and become angry at which is the normal correction of all youngsters in group situations.
      (N.T. 1/6/87 at 52)

      . "It is clear that the only purpose of the expert testimony was to enhance the credibility of the victim____ Such testimony would invest the opinions of experts with an unwarranted appearance of authority on the subject of credibility, which is within the facility of the ordinary juror to assess. We therefore hold that expert testimony on rape trauma syndrome should not have been admitted in the trial of this case." 519 Pa. at 297, 547 A.2d at 358-359. Gallagher dealt with the identification of a rapist by his victim, and the rape trauma syndrome testimony was used to explain how the victim was able to identify her assailant four years after the attack. In the present case, we are concerned not with the issues of identification and credibility, but rather with the emotional and psychological condition of the victim as this pertains to appropriate treatment.

      . At the detention hearing on June 20, 1986, a social worker initially assigned to the case noted that during a conversation with D.D. the latter admitted that she beat the child. The following exchange occurred on direct examination:
      ... Mother said, "Yes, I beat her and I am going to beat her again,” which would be that night.
      Q. Did she indicate to you why she had beaten the child?
      A. Mother said [T.D.] tried to hit her Friday morning, that [T.D.], quote, Raised her hand to me.
      Q. The mother responded by saying what?
      A. That she punched her, beat her for raising her hand.
      (N.T. 6/20/86 at 18-19).
      The lower court’s reluctance to remove T.D. from her home would indicate that the court’s adjudication of dependency was motivated more by concerns over the psychological harm caused by the sexual abuse than by the allegations of physical abuse.


author:
WIEAND, Judge:
      POPOVICH, Judge, MELINSON, Judge,

text:
    553 A.2d 986
    COMMONWEALTH of Pennsylvania v. Robin S. ROXBERRY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 19, 1988.
    Filed Dec. 30, 1988.
    Reargument Denied Feb. 24, 1989.

      Donald D. Doerr, Jr., Butler, for appellant.
    Robert F. Hawk, Assistant District Attorney, Butler, for Com., appellee.
    Before WIEAND, POPOVICH and MELINSON, JJ.
   WIEAND, Judge:

This appeal is from an order dismissing a P.C.H.A. petition after hearing.

Robin S. Roxberry, having been tried by jury, was found guilty of kidnapping, rape, involuntary deviate sexual intercourse, robbery, and theft. He was sentenced to serve a term of imprisonment for not less than 13V2 years nor more than 27 years. The Superior Court affirmed the judgment of sentence, and the Supreme Court denied further appeal. Roxberry then filed a P.C.H.A. petition in which he alleged that trial counsel had rendered ineffective assistance. Counsel was appointed to represent Roxberry, and an evidentiary hearing was held. Post-conviction relief, however, was denied.

In this appeal from the order denying P.C.H.A. relief, Roxberry argues that trial counsel was ineffective for failing to present adequately an alibi defense. Specifically, he contends that trial counsel failed to advise the prosecution that the defense intended to present an alibi defense, failed to move for a continuance of the trial when an alibi witness failed to appear, and failed to request a specific jury instruction on the alibi defense.

There are three elements to a valid claim of ineffective assistance. We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client’s interest. If he did, our inquiry ends. If not, the appellant will be granted relief if he also demonstrates that counsel’s improper course of conduct worked to his prejudice, i.e., had an adverse effect upon the outcome of the proceedings. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988).

Appellant was not prejudiced by trial counsel’s failure to give written notice of an alibi defense as required by Pa.R.Crim.P. 305C(l)(a). Defense counsel had orally notified the prosecuting attorney that an alibi defense would be presented, and the prosecuting attorney had agreed that he would not object because of the absence of written notice.

A subpoena had been issued for a disinterested, alibi witness, but on the day of trial the witness failed to appear. Appellant now argues that trial counsel was ineffective because he failed to move for a continuance of the trial. This argument, however, is not properly before this Court. The issue was not raised in appellant’s P.C.H.A. petition, was not argued at the evidentiary hearing, and was not considered by the P.C.H.A. court. Therefore, it has been waived. Although defense counsel testified at the P.C.H.A. hearing that he had suggested a motion for continuance to appellant when the witness failed to appear and that appellant had vetoed the suggestion, the failure to request a continuance was not alleged to be an instance of ineffectiveness until appellant filed a brief in this Court.

Appellant’s defense at trial was that the victim had mistakenly identified him as her assailant. He said that, contrary to the victim’s testimony, he had been bearded at the time when the offense had been committed. Two witnesses corroborated this testimony. Appellant also testified that on the night when the victim had been kidnapped and raped he had been drinking in a bar with a friend until the bar closed, after which he had gone to his friend’s home. The trial court instructed the jury on this issue as follows:

The critical question for you to decide is whether or not the defendant was the actor in the event that took place between eleven p.m. and one a.m. on the ninth and tenth of January. In behalf of the Commonwealth you have the testimony of [the victim] particularly as to the description of the assailant, the composite she put together of her assailant and the photo identification which is Commonwealth’s Exhibit 2.
In behalf of the defendant he states that he was not in the area but drinking beer at The Keg from eight p.m. until closing on the night in question; that he was bearded at the time of the incident. In his behalf his mother-in-law and commonlaw wife testified that he was bearded.
Your task is to consider all the evidence and to make a determination.

The trial court did not instruct the jury regarding the defendant’s alibi defense, and counsel did not request such an instruction. Appellant argues on appeal, as he did before the P.C.H.A. court, that trial counsel was ineffective because he failed to request an instruction on the alibi defense.

The law regarding the defense of alibi and the duty of a trial court to instruct a jury thereon are well established in this Commonwealth. “Alibi is a defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party.” Commonwealth v. Whiting, 409 Pa. 492, 498, 187 A.2d 563, 566 (1963).

A defendant is entitled to an alibi instruction when evidence of alibi, as defined above, has been introduced. Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959); Commonwealth v. Van Wright, 249 Pa.Super. 451, 378 A.2d 382 (1977). Although an alibi defense is generally presented with accompanying alibi witnesses or other evidence placing the defendant at a place other than the scene of the crime at the time of its commission, the testimony of the accused may, by itself, be sufficient to raise an alibi defense and entitle him to an appropriate jury instruction. See People v. Jones, 47 Ill.2d 135, 265 N.E.2d 125 (1970); State v. Yager, 416 S.W.2d 170 (Mo. 1967); Henderson v. State, 207 Ga. 206, 60 S.E.2d 345 (1950). See also, Commonwealth v. Bonomo, supra (defendant has no burden of proving alibi); Commonwealth v. Van Wright, supra (defendant not entitled to an alibi instruction unless, viewing the evidence in the light most favorable to the defendant, there is some testimony in the record, introduced by either the defense or the Commonwealth, raising the possibility of an alibi defense).

Commonwealth v. Pounds, 490 Pa. 621, 631-632, 417 A.2d 597, 602 (1980).

Where an alibi defense is presented, the trial court must instruct the jury that it should acquit if the alibi evidence, even if not wholly believed, raises a reasonable doubt as to the presence of the defendant at the scene of the crime when the offense was committed.

Commonwealth v. Brunner, 341 Pa.Super. 64, 69-70, 491 A.2d 150, 152-153 (1985). See also: Commonwealth v. Pounds, supra 490 Pa. at 633-634, 417 A.2d at 603.

These principles are basic. The failure to give a specific alibi instruction, if preserved, is fundamental error requiring a new trial. Commonwealth v. Pounds, supra. The “instruction is necessary due to the danger that the failure to prove the defense will be taken by the jury as a sign of the defendant’s guilt.” Id., 490 Pa. at 633-634, 417 A.2d at 603. General instructions on the Commonwealth’s burden of proving each element of a crime beyond a reasonable doubt are not an adequate substitute for a specific alibi instruction. Commonwealth v. Brunner, supra 341 Pa.Super. at 70, 491 A.2d at 153. See: Commonwealth v. Pounds, supra 490 Pa. at 634, 417 A.2d at 603. “Similarly, a general charge on assessing the credibility of witnesses will not suffice.” Commonwealth v. Brunner, supra. See: Commonwealth v. Van Wright, 249 Pa.Super. 451, 458, 378 A.2d 382, 386 (1977).

In Commonwealth v. Brunner, supra, trial counsel failed to request an alibi instruction after introducing an alibi defense. When the court also failed to give the required instruction, counsel failed to object or otherwise call the omission to the trial judge’s attention. The Superi- or Court held that trial counsel’s assistance had been constitutionally ineffective.

In the instant case, counsel was asked about his dereliction. He replied that he probably had failed to make a request for the required instruction because the disinterested alibi witness had failed to appear. As the Pounds court made clear, however, an alibi instruction is necessary even if the testimony of the defendant is the only evidence of alibi.

The Commonwealth argues that defense counsel’s decision was reasonable because if counsel had requested an alibi instruction the prosecution would have requested the court to instruct the jury that an adverse inference could be drawn from the failure of the alibi witness to appear. We reject this argument. The availability of an adverse inference instruction because of the witness’s failure to appear was not dependent upon whether the court instructed the jury on the alibi defense. In this case, moreover, such an instruction would have been inappropriate. The witness, in fact, had been subpoenaed and had failed to appear. This was adequate explanation for the defense’s failure to call the witness. The witness, in short, was unavailable. To have instructed the jury that it could infer that the witness’s testimony would not have supported appellant’s alibi defense under these circumstances would have been inappropriate.

Appellant was entitled to an alibi instruction. The decided cases uniformly require a trial judge to give such an instruction. The instruction is necessary so that a failure of the jury to believe the alibi testimony will not be translated into a finding of guilt. When the trial court failed to give the required instruction, defense counsel had a duty to call the omission to the court’s attention. By remaining silent and failing to request an instruction on this basic principle, counsel deprived appellant of an important right. His omission, as all the decided cases recognize, was a fundamental error which may have influenced the jury’s verdict to appellant’s prejudice.

The order of the trial court is reversed; the judgment of sentence is vacated; and the case is remanded for a new trial.

MELINSON, J., files a concurring statement.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

Having reviewed the record, I respectfully dissent from the majority’s conclusions that the appellant was entitled to an alibi instruction, moreover I disagree that the instruction given herein did not qualify as an “alibi instruction.”

First, I believe that the majority ignores the definition of an alibi defense after it correctly defines it in accordance with Commonwealth v. Whiting, 409 Pa. 492, 187 A.2d 563 (1963). “Alibi is a defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party.” (emphasis added) Whiting, 409 Pa. at 498, 187 A.2d at 566; See also Commonwealth v. Pound, 490 Pa. 621, 631, 417 A.2d 597, 602 (1980); Commonwealth v. Wade, 501 Pa. 331, 333, 461 A.2d 613, 614 (1983).

Instantly, the victim testified that, at approximately 11:00 p.m., she was walking to the AM-PM Mini Mart on Jefferson Street in Butler, Pennsylvania, when the appellant robbed her at gun-point. Unsatisfied with the amount of his ill-gotten proceeds, he decided to rape the victim. Forcing the victim into an alley, he then made the victim take off her clothes and perform oral sex upon him. Thereafter, the victim was raped several more times. She testified that her ordeal lasted nearly two hours and ended upon her release at approximately 1:00 a.m. (N.T., pp. 7-19).

At trial, the appellant testified that he was at The Keg on the evening in question from approximately 8:30 p.m. until closing time at the bar, approximately 1:00 a.m. The appellant further testified that he was in the company of Larry Lawson the entire evening. However, Mr. Lawson, though subpoenaed, did not appear to testify. Significantly, The Keg is located less than one-half a mile from the AM-PM Mini Mart on Jefferson. (N.T., pp. 90-92).

The appellant’s testimony is not an alibi. Clearly, the appellant was not so far removed from the scene of the series of rapes as to “render it impossible for him to be the guilty party.” The appellant was within a few city blocks of the crime scene. Even if the appellant was in The Keg at 10:45 p.m., he could have easily left the bar, robbed, raped and released the victim before 12:45 a.m., and then returned to the bar prior to its 1:00 a.m. closing time. As stated by Justice Larsen in his dissenting opinion in Pound, supra, “If two persons are in a house and one is found dead in the bedroom, the jury should not be instructed on the alibi defense merely because the other claimed that he never left the kitchen.” Pound, 417 A.2d at 604 (dissent). Similar to Justice Larsen’s analysis of the Pound facts, I read the appellant’s testimony as no more than a general denial of guilt. Consequently, I dissent based on my conclusion that the appellant was not entitled to a jury instruction on the alibi defense.

Secondly, even, arguendo, accepting the majority’s assumption that the appellant’s testimony amounted to an alibi, it creates a distinction where there is no difference between the charge of the trial court and the Pennsylvania Standard Jury Instruction on the subject of alibis. That instruction reads as follows:

Obviously the defendant cannot be guilty unless he was at the scene of the alleged crime. The defendant has offered evidence to show that he was not present at the scene but rather was at ( ). You should consider this evidence along with all the other evidence in the case in determining whether the Commonwealth has met its burden of proving beyond reasonable doubt that a crime was committed and that the defendant himself committed (or took part in committing) it. The defendant’s evidence that he was not present, either by itself or together with other evidence, may be sufficient to raise a reasonable doubt of his guilt in your minds. If you have a reasonable doubt of the defendant’s guilt you must find him not guilty.

Here, the trial court did, in fact take special note of the appellant’s testimony:

The critical question for you to decide is whether or not the defendant was the actor in the event that took place between eleven p.m. and one a.m. on the ninth and tenth of January. In behalf of the Commonwealth you have the testimony of Phyllis Weirich particularly as to the description of the assailant, the composite she put together of her assailant and the photo identification which is Commonwealth’s Exhibit 2.
In behalf of the defendant he states that he was not in the area but drinking beer at The Keg from eight p.m. until closing on the night in question; that he was bearded at the time of the incident. In his behalf his mother-in-law and commonlaw wife testified that he was bearded.

(N.T., pp. 122-123)

Immediately thereafter, the trial court went on to charge on presumption of innocence and reasonable doubt. Thus, it is clear to this writer that the trial court did indeed emphasize and elucidate the focal point of the testimonial conflicts.

When the standard charge is read juxtaposed to the actual charge of the court, one can discern precious little difference, certainly none that rises to the level of reversible error. See, Commonwealth v. Johnson, 336 Pa.Super. 1, 485 A.2d 397 (1984) (Pa.S.J.I. on alibi defense satisfies Pound). Finding that the trial court’s charge in this uncomplicated case that encompassed just over one hundred (100) testimonial pages was precise and elucidating, I dissent from the majority’s conclusion to the contrary.

MELINSON, Judge,

concurring:

It is with reluctance that I concur. This conclusion is necessitated by the case of Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980), cited by my distinguished colleague, Judge Wieand. Our Supreme Court in Pounds stated that “the testimony of the accused may, by itself, be sufficient to raise an alibi defense and entitle him to an appropriate jury instruction.” Pounds, 490 Pa. at 632, 417 A.2d 597 (emphasis added). I would be less hesitant in concurring with the result in the case at bar had the Supreme Court used the mandatory language “shall” or “must” in lieu of the discretionary term “may” in its pronouncement in Pounds.

I further note that in the cases Commonwealth v. Brunner, 341 Pa.Super. 64, 491 A.2d 150 (1985), and Commonwealth v. Van Wright, 249 Pa.Super. 451, 378 A.2d 382 (1977), also cited by Judge Wieand, there was alibi testimony other than that of the defendants. At bar, the alibi witness failed to appear, leaving the defendant's alibi testimony standing alone.

Nevertheless, I am constrained to follow Pounds because the Supreme Court of this Commonwealth required an alibi instruction in that case, where there was substantial evidence of guilt, and where the defendant was the lone alibi witness. I believe, however, that the disposition of Pounds may be construed as being inconsistent with another Supreme Court directive, namely, that “an appellate evaluation of the charge must be based on an examination of it as a whole to determine whether it was fair or prejudicial.” Commonwealth v. Ohle, 503 Pa. 566, 470 A.2d 61 (1983); see also Commonwealth v. Klinger, 369 Pa.Super. 526, 535 A.2d 1060 (1987). In considering this directive, this court has stated that “we may not predicate a finding of error upon isolated excerpts of the charge as it is the general effect of the charge that controls.” Klinger, 369 Pa.Super. at 540, 535 A.2d 1060. Thus, this court has found that a jury charge was proper where the trial court failed to include in its charge a reference to the defendant’s presumption of innocence, because the court told the jury that the burden was on the Commonwealth to prove every element of the crime beyond a reasonable doubt. Klinger, 369 Pa.Super. at 540-541, 535 A.2d 1060.

I believe that the alibi charge necessitated by the Pounds Court is one that should be highly recommended for utilization by the trial courts of this Commonwealth when faced with an alibi defense; however, the failure to give the alibi instruction set forth in Pounds should not be reversible error if, read in its entirety, the charge was proper. Furthermore, I would prefer to permit the trial judge to exercise his or her discretion regarding the alibi charge, especially in cases in which the defendant is the only alibi witness; nevertheless, it appears that Pounds prohibits that alternative. Applying the law as set forth in Pounds to the charge in the case at bar, I am compelled to concur with Judge Wieand.

      . The P.C.H.A. court found that appellant had not told defense counsel of the existence of an alibi witness until shortly before trial and after an omnibus pre-trial motion had already been filed.

      . Appellant’s testimony was that the possibility of a motion for continuance had been discussed but that he "basically” left the decision up to counsel.

      . At the commencement of the P.C.H.A. hearing, appellant's counsel said to the court:
      As I have set forth in my brief, the petition alleges two grounds for this relief. First that trial counsel was ineffective in failing to give the prosecution notice of Petitioner’s defense to certain alibi defense. Second, that trial counsel was ineffective in failing to assess the general charge of credibility of witnesses and failing to insist upon an alibi instruction.