text:
    624 A.2d 171
    COMMONWEALTH of Pennsylvania, Appellant, v. Ernest WILLIAMS, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1998.
    Filed April 29, 1993.

      Stuart B. Suss, Asst. Dist. Atty., West Chester, for Com., appellant.
    William A. Ehrlich, Asst. Public Defender, Wyomissing, for appellee.
    Before OLSZEWSKI, TAMILIA and FORD ELLIOTT, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the order entered by the Honorable Thomas G. Gavin on July 31, 1992, in the Chester County Court of Common Pleas. The trial court granted defendant Ernest Williams’ [“Williams”], petition for habeas corpus relief because it found that the Commonwealth failed to establish a prima facie case against Williams. Accordingly, the charges against Williams were dismissed and he was released from custody.

Early in the evening of July 21, 1992, Officer Wilson [“Wilson”] of the East Whiteland Township police witnessed Williams purchase a six-pack of beer, get into his tractor trailer cab, drive it to a parking lot and park. The officer then continued on his patrol. Later, Wilson returned to the parking lot and witnessed Williams drink two bottles of beer. Wilson again left the area and continued on his patrol. At approximately 8:00 p.m., Wilson saw Williams driving his cab on Malin Road approaching Route 30 and stopped him. After administering an Alca Sensor test which revealed Williams’ blood alcohol level to be 0.07%, Wilson arrested Williams for driving a commercial motor vehicle while under the influence of alcohol or a controlled substance, 75 Pa.C.S.A. § 3731(i). Thereafter; Williams was transported to Paoli Memorial Hospital where blood was taken which again registered an alcohol content of 0.07%.

A criminal complaint was filed charging Williams with violating § 3731(i), 75 Pa.C.S.A., as well as the summary offense of operating a commercial motor vehicle with alcohol in his system in contravention of 75 Pa.C.S.A. § 1612. Following a preliminary hearing, the district magistrate found that a prima facie case existed for the charges. Thereafter, Williams filed a petition for writ of habeas corpus, challenging the magistrate’s finding of a prima facie case. Following a stipulated fact hearing held on Williams’ petition, the trial court entered the July 31st order, dismissing the charges against Williams. The Commonwealth filed this timely appeal.

On appeal, the Commonwealth presents one issue for our review: whether it established a prima facie case against Williams for violating 75 Pa.C.S.A. § 3731(i). Section 3731(i) states:

A person shall not drive, operate or be in physical control of the movement of any commercial vehicle while:
(1) under the influence of alcohol;
(2) under the influence of any controlled substance as defined in section 1603 (relating to definitions);
(3) under the combined influence of alcohol and any controlled substance; or
(4) the amount of alcohol by weight in the person’s blood is 0.04% or more.

75 Pa.C.S.A. § 3731(i). Because Williams was driving his tractor trailer cab with a blood alcohol content level of .07%, the district magistrate found that the Commonwealth established a prima facie case for a § 3731(i)(4) violation. The trial court, however, found that Williams’ tractor trailer cab did not come within the purview of the statute and therefore granted Williams’ petition. We disagree.

The title of § 3731(i) refers to driving a commercial motor vehicle. The text of the statute, however, only refers to driving a commercial vehicle. While the legislature defined “commercial motor vehicle,” they did not define “commercial vehicle.” Therefore, we are presented with a question of statutory construction. Specifically, we must determine the intended meaning of “commercial vehicle,” and whether Williams’ tractor trailer cab falls within that meaning.

Section 3731 is a penal statute. The standards which we are to employ in this situation are well-settled.

An Act of Assembly which imposes penal sanctions for violation of its provisions must be strictly construed. 1 Pa.C.S. § 1928; Commonwealth v. Hill, 481 Pa. 37, 391 A.2d 1303 (1978). “However, strict construction does not require that the words of a criminal statute be given their narrowest meaning or that the legislature’s evident intent be disregarded.” Commonwealth v. Gordon, 511 Pa. 481, 486-88, 515 A.2d 558, 561 (1986). In attempting to ascertain the meaning of the statute, we are required to consider the intent of the legislature and are permitted to examine the practical consequences of a particular interpretation. Commonwealth v. Stewart, 375 Pa.Super. 585, 544 A.2d 1384 (1988). We are to presume the legislature did not intend a result that is absurd or unreasonable. Commonwealth v. Martorano, 387 Pa.Super. 151, 563 A.2d 1229 (1989).

Commonwealth v. Nemberg, 402 Pa.Super. 411, 413, 587 A.2d 317, 318 (1991). We find that to give commercial vehicle any other meaning than commercial motor vehicle, as defined by the legislature, would disregard the legislature’s intent and would work an absurd result.

The Commonwealth argues that the legislature intended “commercial vehicle” to have the same meaning as that of commercial motor vehicle because: (1) the statute preceding 75 Pa.C.S.A. § 3731(i) used the term commercial vehicle and defined it virtually the same way as commercial motor vehicle and (2) the title of the section uses the term commercial motor vehicle. We agree. Section 1921(c)(5) of the Statutory Construction Act, 1 Pa.C.S.A., provides that we may consider former laws on similar subjects in ascertaining legislative intent. We can also use section headings as an aid in construction. 1 Pa.C.S.A. § 1924.

In Chapter 16 of the Vehicles Code, Commercial Drivers, the legislature defines the term commercial motor vehicle.

“Commercial Motor Vehicle.” A motor vehicle designed or used to transport passengers or property:
(1) if the vehicle has a gross vehicle weight rating of 26,001 or more pounds or such lesser rating as the department shall adopt under the provisions of section 6103(c) (relating to promulgation of rules and regulations by department), as determined by Federal regulation and published by the department as a notice in the Pennsylvania Bulletin;
(2) if the vehicle is designed to transport 16 or more passengers, including the driver;
(3) if the vehicle is a school bus; or
(4) if the vehicle is transporting hazardous materials and is required to be placarded in accordance with department regulations.
The term does not include an implement of husbandry, or any motor home or recreational trailer operated solely for personal use, or motorized construction equipment, including, but not limited to, motorscrapers, backhoes, motorgraders, compactors, excavators, tractors, trenchers and bulldozers.

75 Pa.C.S.A. § 1603. A virtually identical meaning was given to the statutory predecessor .of § 3731(i). Section 3731.1, “Operators of commercial vehicles,” prohibited commercial drivers from operating their vehicles if they had a blood alcohol content of 0.04% or greater. The former section defined commercial vehicle as:

(1) A vehicle with a gross vehicle weight rating of 26,001 or more pounds.
(2) A combination of vehicles with a gross combination weight rating of 26,001 or more pounds, including the gross vehicle weight rating of the towed unit or units.
(3) A vehicle which is designed to transport 16 or more passengers, including the driver.
(4) A vehicle which is transporting hazardous material and
which is required to be placarded for hazardous materials. 75 Pa.C.S.A. § 3731.1 (repealed May 30, 1990).

The only difference between the two definitions is that § 3731.1 omits school bus and the note excluding certain vehicles. Although § 3731.1 used the term “commercial vehicle,” the legislature defined it the same as “commercial-motor vehicle” in § 1603. Given the similarity of the predecessor statute and § 1603, we find that the legislature intended to define commercial vehicle in § 3731(i) the same way as commercial motor vehicle in § 1603.

Moreover, the phrase commercial motor vehicle is part of the section. The section heading reads “Driving a commercial motor vehicle while under the influence of alcohol or a controlled substance.” This is further evidence that the legislature intended the abbreviated term “commercial vehicle” to have the same meaning as “commercial motor vehicle.”

Having decided that commercial vehicle should be defined as the legislature set out in § 1603, our inquiry is still incomplete. We must decide whether Williams’ cab is a commercial motor vehicle. We find that it is.

Williams argues that the cab alone, however, is not a commercial motor vehicle because: (1) the driver often operates it in a non-commercial manner; (2) the cab, without the trailer can only engage in limited commercial activity; and (3) the cab is not as dangerous as the tractor trailer. We reject Williams’ arguments.

From the definition of commercial motor vehicle, we see that the legislature’s focus was not the use of the vehicle. See 75 Pa.C.S.A. § 1603. Its concern was the size of the vehicle and the vehicle’s contents. Included in this definition are massive trucks, school buses, and vehicles which can transport more than 16 people or carry hazardous materials. Id. Thus, the legislature’s concern was with the potential hazard that is posed from such vehicles being driven on our roadways. We therefore reject Williams’ argument that we should find that his cab was not a commercial vehicle because he was using it as a personal mode of transportation.

It is undisputed that Williams’ tractor trailer had the necessary gross weight rating of more than 26,001 pounds to be considered a commercial motor vehicle. Gross vehicle weight rating is “the value specified on the Federal weight certification label by the manufacturer as the loaded weight of a single vehicle.” 75 Pa.C.S.A. § 102. Thus, the legislature was not concerned with the actual weight of the tractor trailer or the cab alone. Rather, it classified as commercial motor vehicles those vehicles which manufacturers rate as potentially weighing more than 26,001 pounds. According to §§ 102 and 1603, any vehicle which, when loaded, weighs more than 26,001 pounds is a commercial motor vehicle. Since Williams’ tractor trailer has a vehicle gross weight rating of over 26,001 pounds, it is a commercial motor vehicle. Whether the tractor is connected to the cab or not is irrelevant. Any other holding regarding the definition of “commercial motor vehicle” would disregard the classification system established by the General Assembly.

Such a holding would also disregard the purpose behind regulating commercial motor vehicles. Our legislature stated that the purpose of the Uniform Commercial Driver’s License Act is to reduce or prevent commercial motor vehicle accidents, fatalities and injuries. 75 Pa.C.S.A. § 1602. Similarly, § 3731(i) is a legislative attempt to reduce and prevent the potentially disastrous accidents involving massive vehicles. The General Assembly prohibits the driving of any vehicle when a person’s blood alcohol content is 0.10% or greater. 75 Pa.C.S.A. § 3731(a). For commercial motor vehicles, the standards are even more rigorous because of the greater danger posed by a driver operating a large vehicle while under the influence of alcohol or controlled substances. 75 Pa.C.S.A. § 3731(i).

Given the purpose of the regulation of commercial motor vehicle drivers and the classification system for commercial motor vehicles, it is obvious that the Commonwealth made out a pñma facie case that Williams violated § 3731(i) when he drove his tractor trailer cab with a blood alcohol level of 0.07%. Whether the trailer was attached to the tractor is irrelevant. The cab alone is still a monstrous vehicle with the potential to cause severe, and perhaps irreparable, human and property damage if part of an accident. Because of this, we can not in good faith, find that Williams did not violate § 3731(i). Thus, the Commonwealth established a prima facie case against Williams.

For the reasons set forth above, we reverse the trial court’s order granting Williams’ petition for writ of habeas corpus. Jurisdiction relinquished.


source: Caselaw Access Project

author:
FORD ELLIOTT, Judge:
      McEWEN, Judge,

license: Public Domain

text:
    624 A.2d 175
    Roberta RUSSELL, Appellant, v. Raymond E. HUBICZ, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1992.
    Filed April 29, 1993.

      Ronald P. McCall, Sharon, for appellant.
    George H. Rowley, Greenville, for appellee.
    Before McEWEN, FORD ELLIOTT and MONTGOMERY, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from the judgment entered in appellee’s favor according to the jury’s verdict on February 19, 1992, in the Court of Common Pleas of Mercer County. We affirm.

On December 19, 1986, two vehicles driven by Roberta Russell, appellant, and Raymond Hubicz, appellee, were involved in a collision. The accident occurred at the intersection of Sharon-New Castle Road and Mercer Avenue, Mercer County, as appellant was attempting to make a left turn. At the time of the accident, Janice Stokes and Thomas Russell were passengers in appellant’s vehicle. ■

Following the accident, Roberta Russell filed suit against Raymond Hubicz, alleging that he was negligent in operating his vehicle and that his negligence caused the accident. At trial, Roberta Russell offered the testimony of both passengers in her vehicle during her case-in-chief. Both Janice Stokes and Thomas Russell testified favorably to Roberta Russell, indicating that at all times she was driving carefully and cautiously. However, on cross-examination, Stokes was confronted with allegations of negligence on the part of Roberta Russell contained in a complaint she had previously sworn out against Russell. Furthermore, on cross-examination of Thomas Russell, there were questions concerning a prior felony conviction which called into question his veracity. Appellant’s counsel objected to both lines of questioning but was overruled in each instance.

At the conclusion of the trial, the jury found Hubicz to be only 35% negligent and Russell to be 65% negligent. Appellant filed post-verdict motions challenging the trial court’s rulings on her objections to the cross-examinations of Stokes and Russell. The trial court subsequently denied the post-trial motions. This timely appeal followed.

Appellant presently raises three issues for our consideration.

I. Whether the trial court erred in permitting the defendant to cross-examine the plaintiffs witness with regard to her complaint in civil action, filed against the [plaintiff] as to conclusions of law contained therein relating to the ultimate issue of the case (i.e., which party was negligent and caused the accident) and as to portions of the complaint which were neither made nor adopted by the witness?
II. Whether the trial court erred in refusing to allow the introduction into evidence of other portions of the complaint in civil action of the plaintiffs witness dealing with allegations of fact and her allegations of negligence against defendant which were consistent with her testimony on direct examination, for purposes of rehabilitation?
III. Whether the trial court erred in allowing the defendant to cross-examine a witness of plaintiff about his prior criminal record without first ascertaining the specific crime or crimes he might have committed, the date of the crime, whether it was committed as a juvenile or an adult, and without balancing the probative value of the evidence against its prejudicial effect upon the jury and whether the court erred in placing the burden of showing the inadmissibility of that evidence upon the [plaintiff]?

We shall address appellant’s issues in the order presented.

Appellant’s first issue concerns the cross-examination of one of her witnesses, Janice Stokes. During trial, Janice Stokes testified as a witness on behalf of appellant. At the time of the accident, Mrs. Stokes was a passenger in the front seat of appellant’s vehicle. Mrs. Stokes testified, during direct examination, that appellant saw the Hubicz vehicle when it was a considerable distance from the intersection; that when appellant started her turn, the Hubicz vehicle was not close enough to be a threat; and that appellant, at all times, was moving slowly.

Prior to offering such testimony, Mrs. Stokes had, herself, filed suit against both Russell and Hubicz to recover damages for injuries she received as a result of the accident. On cross-examination, counsel for Hubicz confronted Mrs. Stokes with the allegations of the complaint she had filed. Specifically, Mrs. Stokes was questioned regarding the allegations in her complaint against Russell, which directly contradicted her testimony on direct examination. In particular, Mrs. Stokes was asked about the allegations in her complaint that Russell was negligent in failing to keep a sharp lookout; that Russell was negligent in failing to observe the presence and proximity of the Hubicz vehicle; that Russell was negligent in turning when the Hubicz vehicle was so close as to constitute a hazard; that Russell was negligent in turning her vehicle when it could not be done safely; and that Russell drove at an excessive rate of speed.

Appellant maintains that the trial court erred in permitting appellee’s attorney to reference the allegations from Mrs. Stokes’ complaint, when cross-examining her. According to appellant, the line of questioning was improper since the allegations referenced from the witness’s complaint related to her opinion on the ultimate issues of the case; who was negligent; and what caused the accident. In support of her argument, appellant cites to case law holding that, as a general rule,, a witness is not permitted to express an opinion as to the ultimate issue of a ease. See Taylor v. Fardink, 231 Pa.Super. 259, 331 A.2d 797 (1974). Appellant also expresses concern that the allegations from Mrs. Stokes’ complaint, which were read into testimony, amount to legal conclusions, which should not have been presented to the jury.

We agree with appellant’s statement of the law that generally, a witness is not permitted to express an opinion as to the ultimate issue of the case. However, the allegations introduced during cross-examination were not introduced as evidence on the ultimate issue of liability. Rather, the allegations were introduced for the limited purpose of impeaching Mrs. Stokes to the extent that she had testified on direct examination that appellant had operated her vehicle in a careful, cautious, and prudent manner. In fact, immediately following cross-examination, the trial judge instructed the jury as to the limited purpose for which the statements in the prior complaint were to be considered. The trial court instructed the jury that counsel for appellee had a right to attack the credibility of a witness by showing prior inconsistent statements. However, as the trial court noted in its instructions, the prior inconsistent statements were not necessarily true regarding the issue of fault and should not be considered in such a manner.

A similar issue was previously addressed by our supreme court in Monaco v. Gula, 407 Pa. 522, 180 A.2d 893 (1962). Monaco involved a two-vehicle accident wherein a passenger in the lead vehicle was injured when the vehicle in which she was riding was rear-ended. Passenger filed suit against the driver of the second vehicle. The driver of the second vehicle, in turn, filed an additional defendant complaint against the driver of the vehicle that plaintiff was occupying. In the additional defendant complaint, the driver of the second vehicle alleged that the driver of the lead vehicle caused the accident by making a sudden stop without warning. Prior to trial, the driver of the second vehicle withdrew his additional defendant complaint.

At trial on the original complaint, the driver of the second vehicle testified, contrary to the allegations in the withdrawn complaint, that the accident was caused solely by the slippery condition of the highway. An attempt was made to introduce the allegations from the withdrawn complaint, but the trial court ruled that the prior statements were inadmissible. On appeal, the supreme court reversed the decision of the trial court, holding:

[T]hat a prior statement made by a party to a suit which contradicts the testimony of that party at trial as to the cause of an accident is admissible in evidence. Not only is the statement substantive evidence of the matter under inquiry, and, therefore, worthy of the jury’s consideration, but, in addition, it may be used to impeach the credibility of the party, and, toward this end, opposing counsel may cross-examine the party on the allegations contained therein.

Id. at 524, 180 A.2d at 894.

Presently, we are not confronted with the prior statements of a party to a suit, but rather a witness. Thus, we would not conclude that the prior statement in this instance is substantive evidence of the matter under inquiry. The jury did not reach such a conclusion either. However, according to Monaco such prior statements should be permitted for the purpose of impeachment, which is precisely what occurred in this instance.

Appellant is in no position to complain that the allegations from Mrs. Stokes’ complaint should not have been admitted because they offer opinion as to the ultimate legal issue in the case; when, on direct examination, counsel for appellant elicited favorable opinion testimony from this same witness on the ultimate issue of liability. The cross-examination was only permitted to counter assertions as to appellant’s care and conduct in operating her vehicle offered by this witness during direct examination.

Professor Wigmore addressed the concerns presently raised by appellant as follows:

The usual answer of some courts is that the declaration should be excluded because it is mere opinion. This is unsound, (1) because the declaration is not offered as testimony, and therefore the opinion rule has no application, and (2) because the declaration in its opinion aspect is not concerned, and is of importance only so far as it contains by implication some contradictory assertion of fact. In short, the only proper inquiry can be, ‘Is there within the broad statement of opinion on the general question some implied assertion of fact inconsistent with the other assertion made on the stand?’ If there is, it ought to be received, whether or not it is clothed in or associated with an expression of opinion.

Wigmore on Evidence, Vol. III A (4th ed.), § 1041, at 1052 (1986).

Thus, while the allegations of the Stokes’ complaint contain a mixture of factual and legal assertions, so too did her testimony on direct examination. To the extent that this caused some inconsistency in her assertion of facts, the inconsistency needed to be brought to the jury’s attention so it could properly assess credibility.

Appellant’s second issue is closely related to the first. According to appellant, the trial court erred in refusing to allow her to read the portions of Stokes’ complaint to the'jury, concerning Hubicz’s alleged negligence. Appellant maintains that once Stokes was impeached with part of her complaint, the remainder should have been admitted to meet the cross-examination and for purposes of rehabilitating the witness.

Appellant’s argument fails for two reasons. First, it is well-settled law in this Commonwealth that prior consistent statements of a witness are only admissible under two specific circumstances: (1) where it is alleged that the in-court testimony has been recently fabricated, or (2) where it is alleged that the witness is testifying from corrupt motives. See Baldino v. Castcmga, 308 Pa.Super. 506, 454 A.2d 1012 (1982). Neither of these circumstances are present in this instance. Accordingly, the trial court exercised sound discretion in disallowing the prior consistent statements in Stokes’ complaint in an attempt to rehabilitate her.

The second, and more basic, reason for disallowing the allegations of the Stokes’ complaint regarding Hubicz’s alleged negligence, is that such portions of the complaint had absolutely nothing to do with the subject matter upon which Stokes was impeached during cross-examination. On direct, Mrs. Stokes testified that appellant was operating her vehicle safely and Hubicz was not. On cross-examination, Stokes was impeached with prior inconsistent statement regarding appellant’s conduct. The allegations in Stokes’ complaint that appellant sought to introduce on re-direct examination had absolutely nothing to do with appellant’s conduct in operating her vehicle. Thus, there is no possible way that these allegations could have rehabilitated Stokes’ testimony as to appellant’s conduct. At most, the allegations would have merely been cumulative as to Stokes’ unchallenged direct testimony about Hubicz’s conduct. Accordingly, admissibility of this evidence was properly denied.

The final issue raised by appellant concerns the trial court’s decision to admit into evidence the prior conviction of one of appellant’s witnesses. At trial, appellant offered the testimony of her son, Thomas Russell, who was a passenger in her vehicle at the time of the accident. On cross-examination, the court permitted counsel for appellee to question Mr. Russell as to his prior criminal history. Appellant asserts that this was an error on the trial court’s part.

In support of this argument, appellant refers us to Carlson Mining Co. v. Titan Coal Co., Inc., 343 Pa.Super. 364, 494 A.2d 1127 (1985), as the seminal case announcing the test to be used in determining the admissibility of prior criminal convictions to impeach a witness in a civil action. In Carlson Mining Co., this court was confronted with a challenge to the admissibility of evidence that a party in a civil action had previously been convicted of conspiracy to transport stolen goods in interstate commerce. In addressing the issue, this court recognized that Pennsylvania permitted the use of prior convictions to impeach witness credibility in criminal cases but acknowledged that Pennsylvania lacked any hard and fast rule as to the admissibility of prior convictions for impeachment purposes in a civil case. In setting out the rationale for the general rule on admissibility, we stated as follows:

Evidence of proof of prior convictions to impeach witness veracity is a subset of character evidence generally. The underlying rationale for allowing impeachment by showing prior convictions is that a person who has demonstrated his contempt for social constraints by committing crimes is less reluctant to lie under oath than persons who have not been convicted of committing crimes.

Id. at 368, 494 A.2d at 1129 (footnotes omitted).

Accepting that such impeachment evidence is generally admissible, the court looked to its application in the context of a criminal prosecution in Pennsylvania. In particular, this court looked to the decisions in Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978); and Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), for guidance. However, for our purposes today it is important to examine the context in which these cases were decided.

Both Roots and Bighum involved the use of prior convictions to impeach a defendant who testifies in his own behalf at trial, and both decisions recognized that the prejudice which can inure to a defendant under such circumstances required the creation of a different rule on admissibility in such cases. As set out in Roots:

The right of an accused to testify as a witness in his own behalf is a fundamental tenet of American Jurisprudence. It is equally established that witnesses may be impeached by an opposing party. The introduction before the trier of fact of a prior conviction of the witness has long been recognized as an approved method of challenging credibility. Finally, all of our legal principles must conform to our evolving concept of fairness. These precepts are beyond dispute and do not require the citation of authority. The difficulty arises when we are called upon to accommodate the sometimes competing interests sought to be accomplished by these various principles.
It would be naive to conclude that a lay finder of fact is capable of eradicating the prejudice which results from the knowledge of a witness’s prior criminal record. Even the most conscientious and dedicated juror’s objectivity will be, at least unconsciously, colored by such knowledge. Furthermore, there is serious question as to the true probative value of a prior conviction on the veracity of a witness. It has also been suggested that the rule is based more on tradition than tested behavioral analysis. These concerns are magnified where the question is whether the accused who seeks to testify on his own behalf may properly have his credibility attacked because of a prior conviction. Knowledge that his past convictions will be revealed to the jury, if he testifies, may well foreclose his only opportunity to present his version of the occurrence. In any event the serious potential of this evidence for unfairly influencing the jury on the issue of guilt is inescapable.

Roots 482 Pa. at 35-36, 393 A.2d at 365 (footnotes omitted).

Because of the competing interests involved in utilizing such impeachment evidence in a criminal case, the Bighum and Roots decisions rejected a per se rule of admissibility and instead fashioned specific criteria for the use of impeachment evidence against a criminal defendant. The Bighum court observed the federal courts in resolving the issue. The federal courts had begun to move away from the general rule of per se admissibility of prior criminal convictions for crimen falsi crimes. In particular, the Bighum court looked to a federal district court decision in Luck v. United States, 348 F.2d 763 (1965), as a model for fashioning a rule in Pennsylvania for addressing the question of admissibility of evidence of prior convictions when cross-examining a defendant in a criminal trial. Specifically, in Luck, the federal district court noted that when confronted with a question of admitting this type of evidence, trial courts should move away from a per se rule of admissibility based on the nature of the prior crime. Rather, trial courts should start to consider and weigh various factors including: the age and nature of the prior crimes; the length of the criminal record; the age and circumstances of the defendant; probative value versus prejudicial effect. Luck at 769. The Bighum court agreed with the Luck approach and felt it should be utilized as well in Pennsylvania. Nevertheless, due to an incomplete record, the court in Bighum was unable to engage in a meaningful analysis of these various factors.

However, several years later, in Roots, supra, our supreme court was able to utilize this multi-factor analysis. The Roots court recognized that this approach was a departure from the prior, general principle of admitting evidence of any prior convictions, for impeachment purposes, of crimes involving dishonesty or falsehood.

Thus the Bighum rule represented a significant change in the former practice as to the admission of prior convictions for impeachment purposes. First, it restricted the offenses which could be used for impeachment to crimes involving dishonesty or false statement. Equally as important, Big-hum rejected a per se rule of admissibility even where the prior crime involved dishonesty or false statement. This was a clear departure from the prior practice that permitted the introduction of a prior conviction for any felony and embraced a per se rule of admissibility.

Roots 482 Pa. at 38-39, 393 A.2d at 366-67 (footnote omitted) (emphasis in original). The supreme court adopted this new analysis and, in situations involving the impeachment of criminal defendants, applied this test in determining the admissibility of prior convictions.

In turn, when deciding Carlson Mining Co., this court specifically looked to federal cases and determined that there was no distinction drawn in their treatment of the issue in criminal and civil cases. The federal courts in civil cases had adopted the then applicable Luck standards. Therefore, it was decided that we should apply the same approach in Pennsylvania; and Carlson adopted the Bighum/Roots approach in civil cases in determining the admissibility of a prior conviction for purposes of impeaching a witness.

Drawing from the federal cases, we conclude that the same standard should be used in a civil action to determine whether a conviction should be used to impeach as in a criminal action. Accordingly, the court below correctly used the test enunciated in Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), and Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978).

Carlson Mining Co. 343 Pa.Super. at 371, 494 A.2d at 1131.

Instantly, it is the trial court’s failure to utilize the Big-hum/Roots multifactor test that is alleged as error by appellant.

Interestingly, at the same time this court was adopting the Bighum/Roots rule for evaluating the impeachment of witnesses in civil actions, there was a recognition of a change in the federal rules back to per se admission of prior convictions involving crimes of falsehood or dishonesty.

The federal judicial system has modified its rule since Luck and Gordon [v. U.S., 383 F.2d 936] to permit always the use of crimes of dishonesty and falsehood (crimen falsi), but leaves the matter to the trial court’s discretion where the crime is serious, but does not involve dishonesty or falsehood, F.R.E. 609(a).

Carlson Mining Co. at 370, n. 8, 494 A.2d at 1130, n. 8.

Some ten years after its announcement of the Big-hum/Roots standard, the Pennsylvania Supreme Court revisited the application of that standard by the courts of this Commonwealth and deemed it to be unworkable.

In Bighum and Roots this Court attempted to accommodate the needs of the Commonwealth to fully expose witnesses to the view of the jury, while at the same time protecting the defendant from a finding of guilt based solely on a prior history. It was the obvious desire of the Court to provide some objective criteria for determining the admissibility of prior convictions. However, that criteria has proven less than exact, and has done more to engender appeals than to guide courts and litigants. Therefore, the time has come to revise Bighum and Roots in favor of more concrete guidelines for the admission of prior conviction evidence.

Commonwealth v. Randall, infra 515 Pa. at 414, 528 A.2d at 1328.

In Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987) (Dissenting Opinions by Chief Justice Nix and Justice Zappala), the court found the revised federal rules to be persuasive and abrogated the Bighum/Roots standard in favor of a modified per se rule of admissibility of crimen falsi prior convictions.

Therefore, while we do not adopt the federal rule per se we do modify our current rule to the following extent: evidence of prior convictions can be introduced for the purpose of impeaching the credibility of a witness if the conviction was for an offense involving dishonesty or false statement, and the date of the conviction or the last day of confinement is within ten years of the trial date. If a period greater than ten years has expired the presiding judge must determine whether the value of the evidence substantially outweighs its prejudicial effect.

Id. at 415, 528 A.2d at 1329. Thus, in Pennsylvania, the current test for admissibility of prior convictions to impeach a criminal defendant is: (1) was the conviction for an offense involving dishonesty or false statement and (2) is the prior conviction less than ten years old. If both of these conditions are met, then impeachment by prior criminal offense is automatically allowed. If either of these conditions is unmet, then the court must balance the probative value of the impeachment evidence against its prejudicial effect.

Heretofore, this new test has not been formally adopted in a civil case. Appellant urges us not to do so instantly. However, we believe that logic and reasoning dictate that we now formally adopt the Randall rule in cases involving the impeachment of witnesses in civil actions. There are two reasons for our decision.

First, the original rule addressing the impeachment of witnesses in civil cases using prior criminal convictions, was expressly adopted from two criminal cases: Bighum, supra, and Roots, supra. It was the rule developed from these cases which became the rule applicable in civil cases. The Big-hum/Roots rule has now been modified by Randall. Accordingly, it is only fitting to correspondingly modify the rule in civil cases as well.

Second, the modification of the Bighum/Roots rule, in Randall, merely reflects a change in the federal rules returning the impeachment practice involving a criminal defendant to the prior practice of allowing admission of prior crimen falsi convictions to impeach any witness. As this was originally the general rule in our Commonwealth in all cases, and Randall has once again placed the criminal/defendant within the ambit of the original rule, it is logical to bring the civil/witness within its scope as well. See Commonwealth v. Williams, 371 Pa.Super. 509, 538 A.2d 557 (1988).

Since we formally adopt the Randall rule as setting forth the guidelines for impeaching a witness in a civil case with evidence of a prior conviction, we are only left to apply the rule to see if the evidence was properly admitted in this instance.

Mr. Russell’s prior conviction did involve an offense constituting a crimen falsi. Mr. Russell was convicted of stealing an automobile. Also, the conviction was less than ten years old. Mr. Russell was convicted on July 17, 1984. The trial in the case sub judice occurred in March 1991. Accordingly, the modified test from Randall was satisfied and the evidence properly admitted. Furthermore, it bears noting that the trial court gave a cautionary instruction as to the limited use of such evidence, immediately following cross-examination.

In sum, because we find appellant’s three issues lacking in merit, we affirm the judgment entered in appellee’s favor.

Judgment affirmed. Jurisdiction relinquished.

McEWEN, J., files a concurring statement.

McEWEN, Judge,

concurring:

The expression of position by the author of the majority view is, as her colleagues have come to expect, most perceptive and, ¿s well, persuasive. Thus it is that I rush to concur in the decision of the majority to affirm the judgment entered by the trial court in favor of appellee. I differ, however, with the declaration of the majority that the Randall rule should replace the Bighum/Roots standard for the admission of evidence of a prior conviction for purposes of impeachment of a witness.

It strikes me that our esteemed colleague, Judge Peter Paul Olszewski, in Carlson Min. Co. v. Titan Coal Co., Inc., 343 Pa.Super. 364, 494 A.2d 1127 (1985), expressed quite valid and abundant basis for . reliance upon the discretion of the trial court to fairly balance in a civil proceeding the prejudicial/probative factors of the prior conviction of the witness. Moreover, I am not ready to accede to the federal system such presumption of enlightenment as to confer upon that system a lead role in the establishment of evidentiary principles. Since, in my view, the hues of factors and issues attendant a civil proceeding differ in essence and number from the focus of a criminal proceeding, I am compelled to the conclusion that the decision upon the admissibility of such evidence in a civil proceeding is more soundly left to the instincts and discretion of the trial judge than to an inflexible and rigid rule.

Nonetheless, since the decision of the trial court to admit the evidence of the prior conviction of the witness in the instant case did not compose such prejudice to appellant as to require a new trial, I concur in the decision of my eminent colleagues to affirm the judgment in favor of appellee.

      . Specifically, Stokes had alleged in her complaint that Hubicz was negligent: 1) in failing to keep a sharp lookout; 2) in failing to observe the presence and proximity of defendant Russell's automobile on the roadway; 3) in driving his vehicle at a speed greater than was reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing; 4) in operating his vehicle at a speed greater than would permit him to bring his vehicle to a stop within the assured clear distance ahead; 5) in failing to operate his vehicle at a safe and appropriate speed when approaching and crossing an intersection and when special hazards exist with respect to other traffic; 6) in violating 75 Pa.C.S.A. § 3361; and 7) in causing or permitting his vehicle to strike the Russell vehicle.

      . Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987) (dissenting opinions by Chief Justice Nix and Justice Zappala).

      . Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), and Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978).


author: CIRILLO, Judge:

text:
    624 A.2d 188
    Frank A. SCHMIDT, v. Gloria A. KRUG, Appellant.
    Superior Court of Pennsylvania.
    Argued March 11, 1993.
    Filed April 30, 1993.

      John J. Mooney, III, Hanover and Judith K. Morris, Dobbs Ferry, N.Y., for appellant.
    Christian J. Ness, York, for appellee.
    Before CIRILLO, POPOVICH and HESTER, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of York County. We affirm.

Appellant Gloria A. Krug (Wife) and appellee Frank A. Schmidt (Husband) were married on August 1, 1985. The marriage, the third for both parties, lasted for three years and nine months; the parties never consummated the marriage. During the parties’ marriage, Wife was stationed at the Willow Grove Naval Air Station during the week. She returned to the marital home on weekends. While Wife pursued her military career, Husband took responsibility for the domestic duties.

Wife is 59 years old and in good health. Husband is 65 years old and in poor health, suffering from high blood pressure, diabetes, and arthritis.

Husband filed a complaint in divorce on June 8, 1989. The trial court entered a divorce decree on November 16, 1989, and retained jurisdiction over the economic claims.

A master’s hearing was held in September and November of 1990. The master valued the marital assets at $63,582.91, and recommended that the assets be distributed equally so that each party would receive assets in the amount of $31,791.45.

Both parties filed exceptions to the master’s report and recommendation. Husband’s petition to dismiss Wife’s exceptions was granted, and Husband withdrew his own exceptions. The trial court, thereafter, entered the master’s report and recommendation as a final order. An appeal was taken to Superior Court. While on appeal, the trial court issued an amended memorandum and this court remanded the case. On July 7, 1992, the Honorable Michael J. Brillhart entered an order and opinion dismissing all but one of Wife’s exceptions. This appeal followed. Wife raises the following claims for our review:

1. Whether the court erred in determining the date of separation to be April, 1989, when testimony established that husband believed the parties were separated in November, 1988 and the parties had severed financial ties in January, 1988 and no affection existed after November of 1988?
2. Whether the court erred in failing to consider rental value on the marital home that husband solely occupied at least from separation until May of 1990?.
3. Whether the court erred in failing to account for the depreciation in value of the marital home when testimony indicated and husband acknowledged the destruction and neglect of the premises?
4. Whether the court erred in concluding two properties to be marital property, when the parties agreed that these properties were to be separate property of wife, and in the alternative, if these properties are marital, failed to correctly find that the properties resulted in a loss as opposed to net equity increase in marital property, when an actual loss occurred?

Wife argues that the date of separation was November, 1988, and not April of 1989 as determined by the court. The Divorce Code defines “separate and apart” as follows: “Complete cessation of any and all cohabitation, whether living in the same residence or not.” 23 Pa.C.S. § 3103. In Thomas v. Thomas, 335 Pa.Super. 41, 483 A.2d 945 (1984), this court held that “cohabitation” means “the mutual assumption of those rights and duties attendant to the relationship of husband and wife.” Id. at 47, 483 A.2d at 948.

Thus, the gravamen of the phrase “separate and apart” becomes the existence of separate lives not separate roofs (citations omitted). This position follows the trend of Pennsylvania case law in which a common residence is not a bar to showing that the parties live separate and apart ...

Flynn v. Flynn, 341 Pa.Super. 76, 81, 491 A.2d 156,159 (1985). Compare Mackey v. Mackey, 376 Pa.Super. 146, 545 A.2d 362 (1988) (where parties had private living quarters, no public social life together, and had ceased sexual relations, the parties lived “separate and apart” despite the fact that they resided in the same house) with Britton v. Britton, 400 Pa.Super. 43, 582 A.2d 1335 (1990) (where parties jointly purchased a townhouse, shared a joint checking account, had a social life as husband and wife, shared the same bedroom and resumed sexual relations, the court found the parties were not living “separate and apart”).

Here, the trial court determined the date of separation was April of 1989 based upon the finding that the parties had engaged in activities that they had engaged in during the marriage up until that time. The parties continued investing in real estate. Although the property purchased in November or December of 1988 was titled solely in Wife’s name, Husband participated not only in the selection and negotiation of the property, but also undertook renovation and improvement of the property. Additionally, Wife purchased a U.S. Savings Bond in February of 1989 and listed Husband as beneficiary. Further, as late as March of 1989, Wife continued using the joint checking account. Based upon these incidents, the court determined that in April of 1989, when Wife handed Husband “papers” for a separation, the parties became separated. The record supports this finding and, therefore, we find no abuse of discretion. Mackey, supra.

Next, Wife argues that the court failed to consider rental value on the marital home that Husband solely occupied for thirteen months, from the date of separation until May of 1990. Wife argues that she is entitled to the rental value.

In assessing the propriety of an equitable distribution award, our standard of review is whether the trial court, by misapplication of the law or failure to follow proper legal procedure, abused its discretion. Johnson v. Johnson, 365 Pa.Super. 409, 529 A.2d 1123 (1987). The law provides that the party out of possession of the marital home must be compensated in some manner for his or her rights and interests in the property. See Gee v. Gee, 314 Pa.Super. 31, 460 A.2d 358, (1983). A prerequisite to the application of this rule of law is the finding that one party is in exclusive possession of the marital home. Gruver v. Gruver, 372 Pa.Super. 194, 539 A.2d 395 (1988).

Here, during the separation period, Wife continued the pattern established during the marriage, returning to the home on weekends after spending the week in officers’ quarters. Although Husband physically retained exclusive possession of the marital home during the week, this did not alter the previously established arrangement. Wife continued to have access to the property during separation and, therefore, her claim of exclusive possession is negated. This finding is supported in the record and we find no abuse of discretion. Johnson, supra.

In her third claim, Wife argues that the court, in its equitable distribution order, failed to account for the depreciation in the value of the home due to Husband’s neglect and lack of maintenance. At the time of separation, the marital home was valued at $155,000.00; the increase in value during the marriage was $45,000.00. At the time of the master’s hearing on the economic claims, the property value had declined in value, to $135,000.00.

Pursuant to section 3502(a) of the Divorce Code, the trial court, in fashioning an equitable distribution order, must consider all relevant factors including, inter alia, the “contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, ...” 23 Pa.C.S. § 3502(a)(7). Wife’s claim that the property depreciated in value due to Husband’s inattention is meritless. The duty to maintain the premises is a.joint obligation. The trial court determined that any depreciation that occurred in this case was attributable to both parties, and that Husband was not solely responsible. This finding is supported in the record and we find no abuse of discretion. Winters v. Winters, 355 Pa.Super. 64, 512 A.2d 1211 (1986).

In her final claim, Wife argues that the trial court’s conclusion that the marital interest in two rental properties, the West Princess Street property (marital interest of $13,-447.31), and the East Cottage Place property (marital interest of $3,703.43), should onot have been included in the marital estate. Wife argues that these properties were purchased after separation, and that Husband expressly refused an offer to become financially involved in these investments. In the alternative, Wife argues that even if the properties are a part of the marital estate, the court erred in attributing a marital interest, or equity, to either of the properties. Wife maintains that no rents were collected and that she incurred losses in excess of $20,000.00. Further, Wife contends that she paid all property expenses, including mortgage, taxes, insurance and utilities. Wife concludes, therefore, that the court’s determination of an equity interest ignores the economic realities of these ventures.

“Marital property” is “all property acquired by either party during the marriage, ...” 23 Pa.C.S. § 3501(a). The presumption of marital property is rebuttable, and property may be established as separate by a preponderance of the evidence. See 23 Pa.C.S. § 3501(b); Sutliff v. Sutliff 518 Pa. 378, 543 A.2d 534 (1988); Braderman v. Braderman, 339 Pa.Super. 185, 488 A.2d 613 (1985). Additionally, assets acquired after separation through the use of marital assets are marital property. See Gioia v. Gioia, 382 Pa.Super. 538, 555 A.2d 1330 (1989); see also Sutliff v. Sutliff, 361 Pa.Super. 504, 522 A.2d 1144, (permitting tracing of assets) rev’d on other grounds, 518 Pa. 378, 543 A.2d 534 (1988).

It is the function of the court to determine whether a property right has been acquired during marriage and whether equity warrants its inclusion in the . marital estate. Flynn v. Flynn, 341 Pa.Super. 76, 491 A.2d 156, 159 (1985). If the asset is deemed includable in the marital estate, the allocation of that interest must be consistent with the legislative intent, to effectuate economic justice between the parties. 23 Pa.C.S. § 3102(a)(6).

Whether the interest is marital property or separate property for purposes of distribution of the marital estate is a matter within the sound discretion of the trial court. Ruth v. Ruth, 316 Pa.Super. 282, 462 A.2d 1351 (1983). Here, the master found that although the properties were purchased in Wife’s name, both parties undertook renovations with funds borrowed during the marriage, or with funds earned or received during the marriage. The master also found that the evidence was “altogether inadequate to determine that any ascertainable part of these funds were [Wife’s] or [Husband’s] premarital funds.” The trial court determined that the source of the funds spent on the rental properties was a credibility issue. Thus, the court deferred to the master on this issue. See McBride v. McBride, 335 Pa.Super. 296, 298, 484 A.2d 141, 142 (1984) (although a master’s report is advisory only, when adopted by the trial court it is to be given the fullest consideration by this court, particularly on the issue of credibility of witnesses). We find no abuse of discretion. Ruth, supra.

Order affirmed.


author: HUDOCK, Judge:

text:
    624 A.2d 187
    Thomas W. HOERST and Barbara Hoerst, Appellees, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Appellant. (Two Cases)
    Superior Court of Pennsylvania.
    Argued March 3, 1993.
    Filed April 28, 1993.

      Brian D. Boyle, Philadelphia, for appellant.
    Bernard M. Gross and Lee Albert, Philadelphia, for appellees.
    Before CAVANAUGH, BECK and HUDOCK, JJ.
   HUDOCK, Judge:

Appellant (Prudential) labels its appeals as from the order granting Appellees’ (The Hoersts’) petition to confirm the arbitrators’ award and from the order confirming the award. We note that these are not final appealable orders; however, judgment was entered on July 1, 1992, in favor of The Hoersts in the amount of $83,000, which was the amount awarded by the panel of arbitrators. We will, therefore, consider this appeal as having been taken from the entry of that judgment. We affirm.

The facts as summarized by the trial court are as follows:

Plaintiff Thomas [W.] Hoerst initiated a claim for Uninsured Motorist Benefits (UMI) against defendant Prudential Property & Casualty Insurance Company for injuries sustained in an automobile accident which occurred on November 28, 1990. An Uninsured Motorist Arbitration Hearing was held on March 24, 1992. At that hearing, the plaintiff introduced into evidence the Declarations Page for the applicable insurance policy showing Bodily Injury Coverage of $50,000 and Uninsured Motorist Coverage of $25,000. The policy covered two cars.
The Arbitration Panel entered an award on March 25, 1992, for $83,000 against defendant Prudential Property & Casualty Insurance Company. The panel held that the Uninsured Motorist Coverage was in fact not $25,000 but rather equal to the Bodily Injury Coverage of $50,000. per car.

Trial Court Opinion at pp. 1-2.

Prudential raises the following issues in its appeal:

1. Whether, under the applicable policy of automobile insurance, Prudential Property and Casualty Insurance Company is entitled to a jury trial on all issues since the award of the Uninsured Motorist arbitration panel exceeded the limits required under the Motor Vehicle Financial Responsibility Law [MVFRL]; and
2. Whether the award of the Uninsured Motorist Arbitration Panel must be vacated or modified since it is contrary to Administrative mandate and violates the Public Policy.

Appellant’s Brief at p. 3.

Both parties agree that this case is governed by the rules of common law arbitration. Therefore, our standard of review is quite narrow. “[A] common law arbitration [award] is reviewable only for fraud, misconduct, or some type of irregularity which caused the arbitrators to issue an unjust, inequitable, and unconscionable award.” Brennan v. General Acc. Fire & Life, 524 Pa. 542, 548, 574 A.2d 580, 583 (1990) (quoting Wingate Construction Co. v. Schweizer Dipple, Inc., 419 Pa. 74, 213 A.2d 275 (1965)).

The arbitration clause in question here reads as follows: If we and a covered person disagree on policy coverages or amounts payable, either party may make a written demand for arbitration. In this event, each party will select an arbitrator. The two arbitrators will select a third. If they cannot agree on the third arbitrator within 30 days, either may request that selection be made by a judge of a court having jurisdiction. Each party will pay the expenses it incurs and share the expenses of the third arbitrator equally. Unless both parties agree otherwise, arbitration will take place in the county and state in which the covered person lives. Local rules of law as to procedure and evidence will apply. A decision agreed to by two arbitrators will be binding if the award does not exceed the limits required under the Financial Responsibility Law of Pennsylvania.
If an arbitration award exceeds those limits, either party has a right to trial on all issues in a court of competent jurisdiction. This right must be exercised within 30 days of the award. Each party will pay their own expenses.

Essentially, Prudential makes two separate arguments. First, it argues that the arbitrators erred in determining that The Hoersts had stacked uninsured motorist coverage equal to $100,000. Prudential attempts to argue this based on factual and legal grounds concerning legislative mandate and public policy. We find Prudential’s arguments in this regard unpersuasive because it is essentially arguing whether, and in what amount, The Hoersts are entitled to uninsured motorist coverage. These are matters within the jurisdiction of the arbitrators under the contract language cited above. Our Supreme Court has held that there is no limit to the jurisdiction of the arbitrators on issues submitted. Brennan, supra. Issues properly submitted for consideration by the arbitrators are within their discretion to decide; they are the “final judges of law and fact and their award will not be disturbed for mistake of either.” Brennan, supra 524 Pa. at 550, 574 A.2d at 583. That does not end our inquiry, however, beeause Prudential also asserts that under its policy it may request a trial de novo if the award exceeds the minimum financial responsibility required under the MVFRL.

The issue of whether Prudential may now seek a trial de novo was not and could not have come before the arbitrators, because it only came into effect after the arbitrators’ award. Prudential raised this issue, however, in its petition to vacate the arbitrators’ award. Although the trial court did not address this issue in its opinion, the court did deny the petition to vacate, and we assume that it did so on all grounds before it.

Prudential claims that the language of its arbitration clause entitles it to a trial de novo. The Insurance Commissioner is empowered to approve uninsured motorist coverage provisions. See Prudential Property and Casualty Insurance Co. v. Muir, 99 Pa.Cmwlth. 620, 513 A.2d 1129 (1986), alloc. den., 514 Pa. 637, 522 A.2d 1106 (1987). In fact, Muir also involved Prudential Property and Casualty Insurance Company, the present Appellant, and although the arbitration clause at issue in Muir was not reprinted in that opinion, we find that the reasoning in Muir is sound. We, therefore, adopt it in our case. The Commonwealth Court stated that the company could not modify or delete the arbitration clause required by the Insurance Department regulations. After examining Prudential’s clause in our present case, and the Insurance Department regulations issued concerning required provisions in Pennsylvania insurance policies, we find that the additional language in Prudential’s policy purporting to entitle it to a trial de novo improperly modifies those regulations and is, therefore, void.

31 Pa.Code § 63.2 (1979) states:

(a) The extent of the coverage which shall be offered as “Uninsured Motorists Coverage” shall be at least that coverage contained in the sample form attached hereto as Exhibit C and made a part of this section, which is the National standard form for this insurance. [Emphasis added.]

Therefore, the sample form contains provisions which are the-minimum required coverages. In Exhibit C, Conditions, 8. Arbitration, of the sample form, the following language appears:

Such [covered person] and the company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this endorsement.
The provision, in Prudential’s policy, reads:
A decision-agreed to by two arbitrators will be binding if the award does not exceed the limits required under the Financial Responsibility Law of Pennsylvania.
If an arbitration award exceeds those limits, either party has a right to trial on all issues in a court of competent jurisdiction.

Appellant’s Policy, Arbitration Clause. This language clearly destroys the finality and binding nature of the arbitrators’ decision, and therefore provides less than the minimum coverage as mandated in the regulations. Consequently, Prudential’s policy provision with regard to the language not contained in the Insurance Department’s regulations is void, and will not be enforced.

Judgments affirmed.

CAVANAUGH, J., notes his dissent.

      . For purposes of this discussion, the term "coverage” refers to the concept of insurance itself and not to any specific dollar amounts which individual insurance companies may negotiate with customers.


author: POPOVICH, Judge: McEWEN, Judge,

text:
    624 A.2d 190
    William MARBLE and Shirley Marble, H/W v. FRED HILL & SON v. LOUISVILLE LADDER COMPANY. Appeal of LOUISVILLE LADDER COMPANY.
    Superior Court of Pennsylvania.
    Argued Jan. 27, 1993.
    Filed May 5, 1993.

      Donald J. Sweeney, Philadelphia, for appellant.
    Barry L. Gross, Newtown, for appellee.
    Before McEWEN, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Bucks County, entered on April 27,1992, whereby the lower court granted appellees’'motion for reconsideration and reinstated its order of May 13, 1991, which denied appellant the opportunity to amend its new matter and assert the affirmative defense of the statute of limitations. Finding the order in question to be interlocutory, we quash this appeal and remand for trial.

Instantly, we review a record replete with procedural missteps, and a summary of the relevant procedural history is warranted. On May 8,1991, appellant filed a motion to amend its answer and new matter so that it could affirmatively plead the defense of the statute of limitations. Following argument, leave to amend was denied on May 13, 1991. Later that same day, appellant filed a notice of appeal from the order of May 13, 1991, which denied its request for leave to amend. On May 14, 1991, appellant made an oral motion for reconsideration which was denied. The case was then continued pending the appeal.

On May 17, 1991, appellant withdrew, pursuant to Pa. R.App.P. 1701(b)(3), its appeal from the order of May 13,1991, but filed a second notice of appeal. This second appeal was taken from the court’s order of May 14, 1991, which denied his motion for reconsideration. The court directed that appellant file a concise statement of matters complained of on appeal, and appellant complied, alleging it was error to deny it leave to amend its new matter. On December 2, 1991, the lower court entered its opinion pursuant to Pa.R.App.P,. 1925, wherein it stated: “Upon review and reconsideration, this Court agrees that its orders of May 13 and May 14, 1991 should be reversed thereby allowing Additional Defendant/Appellant Louisville Ladder the opportunity to amend its New matter and assert the Statute of Limitations as an affirmative defense.”

The record was then sent to the Superior Court on December 5, 1991. However, appellant, apparently believing the court’s Rule 1925 opinion granted it leave to amend, again praeciped to withdraw its appeal. Appellant also filed an amended answer and new matter pleading the defense of the statute of limitations on December 6, 1991. Appellees responded to the new matter on December 10, 1991. Shortly thereafter, on December 18,1991, the appeal was discontinued by this Court because of appellant’s second praecipe to withdraw appeal.

On December 31,1991, appellees filed a motion for reconsideration of the trial court’s “opinion” of December 2, 1991, which the parties believed to be an “order” granting appellant’s motion for leave to amend. Appellant responded to the motion for reconsideration. Following another hearing, the lower court granted the motion for reconsideration and reinstated its order of May 13, 1991, once again denying appellant’s request for leave to amend its complaint to include the affirmative defense of the statute of limitations.

Notice of appeal was again filed, and appellant filed a second statement of matters complained of on appeal, in which it alleged it was error to deny it leave to amend its new matter. In the Rule 1925 opinion sub judice, the lower court tersely states, “Please be advised that, upon review of Appellant’s Statement of Matters Complained of, it does not appear that a written opinion is necessary. This Court stands on the record.”

Herein, appellant contends that the lower court erred in its order of April 27, 1991, when it denied it leave to amend its new matter to include the affirmative defense of the statute of limitations. Before we can address the merits of the issues raised by appellant, we must first determine whether an order which denies a defendant leave to amend its new matter to include the affirmative defense of the statute of limitations is a final, appealable order.

The law is clear that a “pre-trial order precluding the assertion of an affirmative defense which ‘prevented factual proof of matters which the trier of fact could have determined in favor of the pleader so as to provide him with a complete factual defense,’ ” is “final” and thus, “appealable.” Mineo v. Tancini, 517 Pa. 335, 338, 536 A.2d 1323, 1324 (1988), quoting Hull v. Tolentino, 517 Pa. 328, 330, 536 A.2d 797, 798 (1988). See also, Postemack v. American Cas. Co. of Reading, 421 Pa. 21, 218 A.2d 350 (1966) (pre-trial order denying leave to amend answer to include affirmative defense of res judicata was final and appealable).

If the affirmative defense turns on disputed facts and the trial court errs in precluding the assertion of that defense, the case must be retried if appellate review and a reversal occur after the entry of final judgment. Appellate consideration before trial in this circumstance would obviate the possible expense and burden of two trials. On the other hand, where an affirmative defense involves a question of law, the appellate court can simply apply the law to the outcome of the litigation should, it find that the trial court abused its discretion in precluding the assertion of that defense.

Hull, 536 A.2d at 798-799.

“Whether the statute of limitations has run on a claim is usually a question of law for the judge; however, at times, a factual determination by the jury may be required.” Cathcart v. Keene Indus. Insulation, 324 Pa.Super. 123, 140, 471 A.2d 493, 502 (1984), citing Smith v. Bell Telephone Co., 397 Pa. 134, 142, 153 A.2d 477, 48.1 (1959). Instantly, there is no factual dispute relative to the defense of statute of limitations. Appellee, William Marble, was injured on February 27, 1985, when he fell from a ladder allegedly manufactured by appellant. It was not until May 28, 1987, that the original defendant filed a writ of summons joining three potential manufacturers, including appellant. Defendant Fred Hill and Son filed a complaint joining appellant on June 30, 1987. This is not a “discovery” rule case. See, Cathcart, supra (“discovery rule” case). Thus, we find that under the circumstances of the case sub judice, the affirmative defense of statute of limitations simply involves a question of law which may be resolved after final judgment is entered without the need for a second trial. Accordingly, we hold that the order in question is interlocutory, and we quash this appeal. Cf., Hull, supra But see, Joyce v. Safeguard Mut. Ins. Co., 362 Pa.Super. 522, 524 A.2d 1362 (1987) (refusal to grant leave to file new matter asserting affirmative defense of statute of limitations was final and appealable decision), reversed on other grounds, 517 Pa. 488, 539 A.2d 340 (1988).

Appellant also contends that the lower court lacked jurisdiction to grant appellees’ motion for reconsideration of the lower court’s opinion of December 2, 1991, wherein the lower court concluded it had erred in denying appellant’s request for leave to amend. However, we find that the court did possess the requisite jurisdiction to rule upon appellees’ motion for reconsideration. As we have previously found herein, an order which denied appellant leave to amend its new matter to include the affirmative defense of the statute of limitations is interlocutory and nonappealable. Thus, appellant’s first, second and third notices of appeal from similar orders were all premature, since they were from interlocutory nonappealable orders. The statute which limits the time for reconsideration of orders to 30 days after their entry, 42 Pa.C.S.A. § 5505, applies only to appealable orders. Hutchinson v. Luddy, 417 Pa.Super. 93, 108, 611 A.2d 1280, 1288 (1992); Daywalt v. Montgomery Hospital, 393 Pa.Super. 118, 122-123, 573 A.2d 1116, 1118 (1990). Accordingly, neither party was precluded from filing a motion for reconsideration of any of the court’s orders relating to the amendment of appellee’s new matter, since those orders were interlocutory. See Hutchinson, supra; Daywalt, supra. Further, the court was not precluded from reconsidering those orders. Atlantic Richfield Co. v. J.J. White, 302 Pa.Super. 276, 448 A.2d 634 (1982) (court has inherent power to reconsider its own rulings). See also Pa.R.App.P. 1701(b)(6) (“After an appeal is taken ..., the trial court ... may: (6) Proceed further in any matter in which a nonappealable interlocutory order has been entered, notwithstanding the filing of a notice of appeal____”).

In sum, we find that the order of April 27, 1991, which denied appellant’s motion for leave to amend its new matter to plead the affirmative defense of the statute of limitations is interlocutory and nonappealable. Accordingly, we quash this appeal and remand for trial.

Interlocutory appeal quashed. Case remanded for trial.

McEWEN, J., files a dissenting statement.

McEWEN, Judge,

dissenting:

While the Opinion of the majority reflects a careful analysis and precise rationale, I am compelled to the view that appellant, Louisville Ladder Company, by reason of the decision of this Court in Horowitz v. Universal Underwriters Ins. Co., 397 Pa.Super. 473, 580 A.2d 395 (1990), should have been permitted to amend its new matter to assert the statute of limitations as an affirmative offense.

      . Contrary to the lower court’s assertion, we find that the record — one full of procedural errors, exacerbated by the lack of guidance from the lower court — is insufficient to explain the lower court’s equivocation on the issue of whether leave to amend should have been granted. A written opinion should have been filed by the court below to illuminate an otherwise clouded decision.

      . Although Mineo, supra, was a plurality decision, all participating justices agreed that the order denying the petitioner leave to amend its new matter to include the affirmative defense of settlement was final and appealable.

      . We note that no petition for permission to appeal an interlocutory order was filed instantly. See Pa.R.App.P. 312, 1311-1323.

      . We note that appellant erroneously confused the lower court's Rule 1925 opinion with an order granting it leave to amend. A Rule 1925 opinion is authored by the lower court for the sole purpose of explaining its reasoning for the decision in question. Pa.R.App.P. 1925. In fact, a review of the lower court’s Rule 1925 opinion reveals that its purpose was to advise this Court that its orders of May 13 and 14, 1991, "should be reversed.” It did not actually grant appellant leave to amend. Consequently, appellant filed its amended new matter without actual permission to do so. Accordingly, appellant must withdraw his amended new matter.
      Moreover, even if we were to assume that appellant was correct that an order denying leave to amend is final and appealable, it could not prevail. Once appellant filed its appeal from the "final” order of May 14, 1991, the trial court was divested of jurisdiction. Pa.R.App.P. 1701(a). Therefore, the lower court could not grant appellant’s request while the appeal was pending. By withdrawing its appeal of that "final” order, the order of May 14, 1991, became absolute, and appellant's failure to pursue that appeal would have forever foreclosed review of the lower court’s decision to deny its request for leave to amend its new matter. Daywalt, 573 A.2d at 1118; 42 Pa.C.S.A. § 5505. Thus, if we were to find that, under the circumstances of this case, an order denying leave to amend to plead the affirmative defense of the statute of limitations to be final, appellant would not only be prohibited from amending its new matter, but also appellate review of that issue after final judgment would be foreclosed. However, given the fact that we have determined such an order to be interlocutory, review of the order can occur after final judgment.


author: POPOVICH, Judge:

text:
    624 A.2d 193
    Elba ROSADO and Julio Carrasquillo, Appellants, v. Soledad DIAZ, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 18, 1993.
    Filed May 5, 1993.

      Michele A. Goldfarb, Philadelphia, for appellants.
    Soledad Diaz, appellee, pro se.
    Before BECK, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

The Plaintiff/Appellant, Elba Rosado, appeals the order of the Court of Common Pleas of Philadelphia County, Family Division, dismissing her complaint for custody of the minor-child Bill Omar Carrasquillo. We vacate and remand with directions.

The facts of record disclose that the Plaintiff filed a complaint for custody on May 8, 1992, which alleged that the natural father of the child was in prison, that the relationship of the Plaintiff to the child was that of a “friend”, that the Plaintiff “had sole custody of the child since birth”, that the child was then five years of age and the Plaintiff wanted “sole” custody of the child. The natural mother, the Defendant/Appellee Soledad Diaz, filed a similar custody petition.

On August 14, 1992, a hearing was conducted wherein the court was advised that the Plaintiff was:

the de facto stepmother of the child. She lives with the child’s father and has raised the child since the child was a small infant in the last six years.

N.T. 4: With this disclosure, the court ruled that the Plaintiff had no standing to bring a custody action absent an initial declaration that the child was dependent, and it cited Gradwell v. Strausser, 416 Pa.Super. 118, 610 A.2d 999 (1992), in support of its determination that “third parties[, as the Plaintiff,] have no standing absent a finding of dependency.” N.T. 5.

Counsel for the Plaintiff attempted to produce evidence that his client had raised the child since birth and that the Defendant had never “met the child, except when he was a tiny infant.” N.T. 4 and 8. The court refused to accept any testimony on the ground that the Defendant/natural parent had a “prima facie right to custody” and the Plaintiff “lack[ed] a legal basis to claim custody equal to that of the parent.... ”

It was the Defendant’s contention that her mother had given the child to the natural father because of her use of drugs. She then claimed that the drug problem had been rectified and this turn of events entitled her to possession of her son by way of the grant of her petition for custody. To refute this, the Plaintiff offered to prove that the child had been in her possession “since he was two months old”, and witnesses were available to testify to such a fact, as well as access to kindergarten and immunization records and photographs to establish that the child had lived with the Plaintiff and the natural father his entire life. N.T. 10.

The court refused to hear testimony on the custody question. It believed that a “dependency action” was the vehicle by which the Plaintiff (having no “standing” equal to that of the natural mother/Defendant) would have to proceed to obtain custody of the child. As a result, the Plaintiffs complaint was denied, but the Defendant was granted custody of the child. This appeal ensued and necessitates the resolution of the claim: Did the court err in finding that the Plaintiff had no “standing” to institute a custody proceeding, and that her only recourse was the institution of a dependency action?

Initially, we find that the Plaintiffs living arrangement with the natural father warrants categorizing her as a “third party” (versus a “parent”) in this litigation. Consequently, the law dictates that the appropriate manner for a “third party” to obtain child custody is through a dependency proceeding. 42 Pa.C.S. § 6301; Helsel v. Blair County Children and Youth Services, 359 Pa.Super. 487, 519 A.2d 456 (1986). The reason for such an approach by third parties is that:

Absent a prima facie right to custody, a third party lacks standing to seek custody as against the natural parent. If [the courts] were to grant standing to third parties under these circumstances,
a parent’s prima facie right to custody could thus be challenged without a clear and convincing showing that the child is not receiving proper parental care. This is not appropriate when the party seeking custody lacks a legal basis to claim custody equal with that of a parent. It is an unacceptable means of circumventing the procedures established to determine the necessity of forfeiting parental rights.

Gradwell, supra, 416 Pa.Super. at 123, 610 A.2d at 1002 (Citations omitted). The exception to this third-party-lack-ofstánding-preclusion is proof that such a “party stands in loco parentis, that is, where he or she has ‘assumed obligations incident to the parental relationship.’ ” Id. (Citations omitted).

In resolving this “loco parentis” issue, the courts of this Commonwealth have looked favorably upon and have not minimized the “stability” factor between the child and the third party. For example, this Court in Commonwealth ex rel. Bankert v. Children’s Services, 224 Pa.Super. 556, 307 A.2d 411 (1973), found the evidence insufficient to justify awarding custody to Child Services and reversed the trial court’s order doing so. As herein relevant, we wrote on the question of a child’s best interests that:

Of extreme significance in this conclusion is the fact that Charlene has been in the care and custody of appellants throughout her development from an infant of three weeks to a child of nine years. After such a period of time, a child “becomes strongly attached to those who stand in parental relationship to it and who have tenderly cared for it. Its bonds of affection have become so strong that to sunder them suddenly may result not only in the child’s unhappiness, but also in its physical injury____ Nothing could be more cruel than the forceable separation of the child from either its real or foster parents by whom it has been lovingly cared for and to whom it is bound by strong ties of affection.” Commonwealth ex rel. Children’s Aid Society v. Gard, supra, [362 Pa.] at 97, 66 A.2d at 306. “The emotional disturbance to a child that would threaten from its being removed summarily and permanently from familiar and agreeable surroundings and associations, incident to the only parental control and supervision it has ever known could have a very harmful effect on the child’s whole life.” Davies Adoption Case, 353 Pa. 579, 588, 46 A.2d 252, 257 (1945). These factors are especially strong in this case in which the child considers the appellant her parents. The continuous custody of Charlene with appellants for all but the first three weeks of her life, and the emotionally devastating effects which could result from a forced separation are matters which should be seriously weighed in determining the child’s best interests.

224 Pa.Super. at 560, 307 A.2d at 414. Similarly, in Commonwealth ex rel. Kraus v. Kraus, 185 Pa.Super. 167, 138 A.2d 225 (1958), we reversed a lower court’s order awarding custody of the child (Leroy) to his natural mother (Susan) and discounting the positive efforts of the child’s stepmother (Audrey) in raising the child. On these points, we stated:

The lower court also erred in expressly disregarding the important circumstance that Audrey has lovingly cared for Leroy as the only mother he has known since he was fourteen months old. In Davies Adoption Case, 353 Pa. 579, 46 A.2d 252, 257, which involved a four-year-old child, Mr. Justice (now Mr. Chief Justice) Jones said: “The emotional disturbance to a child that would threaten from its being removed summarily and permanently from familiar and agreeable surroundings and associations, incident to the only parental control and supervision it has ever know, could have a very harmful effect an [sic] the child’s whole life. Fortunately, the law’s regard for a child’s welfare does not admit of any such injury or harm.being done it”. In Commonwealth ex rel. Children’s Aid Society v. Gard, 362 Pa. 85, 66 A.2d 300, 306, the child in question had been in a foster home for approximately four years, having been placed there when she was five months old. The following excerpt from the opinion of Mr. Chief Justice Maxey, awarding custody to the foster parents, is particularly applicable to the present factual situation: “A child of two years of age or under will form new attachments quickly if treated kindly by those into whose care it is given. In that respect it resembles a young tree whose roots have not yet taken deep hold in the nourishing earth, but when a child is much beyond the age of two years, it becomes strongly attached to those who stand in parental relationship to it and who have tenderly cared for it. Its bonds of affection have become so strong that to sunder them suddenly may result not only in the child’s unhappiness, but also in its physical injury. Nothing could be more cruel than the forceable separation of a child from either its real or foster parents by whom it has been lovingly cared for and to whom it is bound by strong ties of affection”.

185 Pa.Super. at 172, 138 A.2d at 228-29.

In addition, in this Commonwealth courts have looked to the problem of “separation trauma” and “bonding” between the child and third party in making an assessment of the “best interests of the child” in custody matters. See, e.g., Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157, 160 (1980); Seger v. Seger, 377 Pa.Super. 391, 547 A.2d 424, 427 (1988).

Instantly, we find that the trial court erred in failing to take testimony on the question of the Plaintiffs “in loco parentis” status: raising the child for all but two months of his six years of existence. This would have allowed the court to determine the level and quality of the Plaintiffs involvement in raising the child.

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

Commonwealth ex rel. Morgan v. Smith, 429 Pa. 561, 241 A.2d 531, 533 (1968).

Based on a full record, the court would be able to make an informed decision on the Plaintiffs third party status to determine whether she had risen to the level of “loco parentis”. Instead, the court summarily dismissed the Plaintiffs complaint for custody without taking evidence in support of her allegations that she raised the child since birth and of the natural father’s imprisonment, the commencement date of which would have disclosed whether the Plaintiff had sole custody of the child during this period of incarceration. See Gradwell, supra, 416 Pa.Super. at 125, 610 A.2d at 1003.

Absent inquiry into the Plaintiffs third party status, i.e., did she engage in conduct entitling her to “in loco parentis” status, we have no basis on which to conclude that the Plaintiff is merely a third party lacking standing to seek custody, except by means of a dependency proceeding. Cf. Stapleton v. Dauphin County Child Care Service, 228 Pa.Super. 371, 324 A.2d 562 (1974).

If the Plaintiff would have been able to establish herself as one “in loco parentis” with the child, she need not pursue custody via the dependency route. She may utilize, as she did below initially, a complaint in custody to establish the best interests of the child. See Gradwell, supra, 416 Pa.Super. at 123-25, 610 A.2d at 1002-03 (Citations omitted).

Therefore, because of the error of the court below in prohibiting the Plaintiff from presenting evidence on the issue of “in loco parentis”, the case must be remanded for a full hearing on this subject. See In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977), and contrast with Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307, 318 (1976).

Order vacated, case remanded for a procedendo, and jurisdiction is not retained.

      . Although the name of Julio Carrasquillo, the natural father of the child, appears in the case caption as a party-Plaintiff, he is not a party to this appeal.
      The father is presently incarcerated and is not a party to this custody action.

      . By per curiam order of this Court dated August 20, 1992, the court’s order awarding custody of the child to the Defendant was permanently stayed pending appellate review.

      . As stated in In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977), there are three types of interested parties in a child custody dispute: 1) parent versus parent; 2) parent(s) and a third party; and 3) parent(s) and the state. Out of these choices, the Plaintiff falls into the second category of disputants. Id.


author: JOHNSON, Judge.

text:
    624 A.2d 197
    Annetta CARNEY v. Elmer J. DAHLMANN, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1993.
    Filed April 26, 1993.

      Alex E. Echard, Mt. Pleasant, for appellant.
    Henry Á. Hudson, Jr., Greensburg, for appellee.
    Before ROWLEY, President Judge, and JOHNSON and MONTGOMERY, JJ.
   JOHNSON, Judge.

Elmer J. Dahlmann appeals from the order of the trial court which denies his preliminary objections in the nature of a motion to dismiss the support action brought by Annetta Carney for lack of personal jurisdiction and improper venue. This appeal, although from an interlocutory order, has been certified to this Court as one presenting a substantial question of law. We affirm.

The parties to this action, formerly husband and wife, resided during their marriage in Westmoreland County, Pennsylvania, and were divorced in Westmoreland County by decree on July 26, 1988. Carney and the minor child for whom support is requested continue to reside in Westmoreland County. Dahlmann currently lives in Orlando, Florida, where he has been a resident since 1986.

Carney originally filed a support action in Westmoreland County in 1986. The Domestic Relations Office in that county converted Carney’s action from a local case into an action under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), 23 Pa.C.S. § 4501 et seq. A child support order requiring Dahlmann to pay Carney the sum of $25.00 per week was then entered in the Circuit Court in Osceola County, Florida in 1987.

In 1991, Carney attempted to convert the RURESA action into a local action and requested modification of the Florida support order. The trial court entered the requested modification to the Florida support order on April 26, 1991. Dahlmann contested the jurisdiction of the court to modify the Florida support order. The trial court thereafter vacated the local modification order, but granted Carney leave to institute a new action for support in Westmoreland County. Carney then filed the present action for support.

. Dahlmann filed preliminary objections in the nature of a motion to dismiss to the present action claiming that the Westmoreland County court had no personal jurisdiction over him and that venue was improper since there was an existing support order in effect in Florida. Dahlmann’s preliminary objections were dismissed, giving rise to this appeal. Dahlmann presents three issues for our review:

1. Whether the Pennsylvania court lacks personal jurisdiction over Dahlmann because he is a Florida resident.
2. Whether venue in Westmoreland County, Pennsylvania is improper in light of the support order under RURESA which was entered by the Florida court.
3. Whether Florida law must be applied by the Pennsylvania court in resolving the support action between the parties in this case.

First, Dahlmann claims that the trial court lacks personal jurisdiction over him since he has been a Florida resident since 1986. We disagree.

The Due Process clause of the Fourteenth Amendment operates as a limitation on the jurisdiction of state courts to enter judgments affecting the rights or interests of nonresident defendants. Kulko v. California Superior Court, 436 U.S. 84, 91, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132, 140 (1978). The standard for determining whether personal jurisdiction is proper was articulated by the Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945). There, the Court stated:

Due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.

Id. These constitutional requirements have been incorporated into the law of Pennsylvania at 42 Pa.C.S. § 5322(b). The standard regarding minimum contacts is one of reasonableness. Baronti v. Baronti 381 Pa.Super. 134, 136, 552 A.2d 1131, 1132 (1989). There must be sufficient connection between the defendant in a case and the forum state as to make it fair to require defense of the action in the forum; an essential criterion in all cases is whether the quality and nature of the defendant’s activity is such that it is reasonable and fair to require him to conduct his defense in the forum state. Id.

In Baronti supra, the father, who voluntarily abandoned Pennsylvania to take up residence in another state, contested the jurisdiction of the Pennsylvania courts to impose child support obligations upon him. In that case, we held that it was fair and reasonable for a father to be required to defend a support action in Pennsylvania where the forum was the site of the former marital and family residence and was where the mother and children continued to reside. Baronti, at 138, 552 A.2d at 1133.

We find the same rationale applies in the present case. Here, the parties were married and lived during the marriage in Pennsylvania. Carney and her children continued to reside in Pennsylvania after the parties divorced. Dahlmann voluntarily relocated to Florida but remained subject to ongoing support obligations to his children in Pennsylvania. We find these contacts to meet the standard required under the constitution and Pennsylvania law. Therefore, we conclude that the trial court properly found that it had personal jurisdiction over Dahlmann in this action.

Second, Dahlmann asserts that venue in the Westmoreland County court is improper. We disagree.

Venue in support actions is controlled by Pa.R.C.P. 1910.2 which states:

Rule 1910.2. Venue
An action may be brought in any county in which
(1) the defendant resides, or
(2) the defendant is regularly employed, or
(3) the plaintiff resides and that county is the county in which the last family domicile was located and in which the plaintiff has continued to reside.

The trial court concluded that Pa.R.C.P. 1910.2(3) permitted Carney to sustain venue for the support action in Westmoreland County. This conclusion was proper.

Dahlmann contends that any support action against him must be brought under RURESA since he is not currently a resident of Pennsylvania, and further, that the present action is improper in light of the existing support order by the Florida court. We disagree. The explanatory note to Pa. R.C.P. 1910.2 supports the trial court’s conclusion that Carney need not proceed under RURESA and may sustain venue in Westmoreland County. That explanatory note states in pertinent part:

Subparagraph .(3), ... alters the intercounty statutory provision where the county of the plaintiffs residence is also the county of the last family domicile and the plaintiff has continued to reside in that county. In such case, the matter will be heard in the county of the plaintiffs residence, and defendant must return there to defend the action. If the plaintiffs county of residence is not the county of the last family domicile or plaintiff has not continued to reside there, then the intercounty provision of the Civil Procedural Support Law or RURESA 1968 will continue to govern the procedure.

Thus, under Rule 1910.2(3), Carney may maintain the present action in Westmoreland County because that county was the location of the last family domicile and because Carney has continued to reside there, since the time of the divorce, with the minor child for whom she seeks support. See also Bem v. Bem, 316 Pa.Super. 390, 463 A.2d 16 (1983), aff'd, 505 Pa. 605, 482 A.2d 1273 (1984). Contrary to Dahlmann’s contentions, it is only when the plaintiff in a support action resides in a county other than that of the last family domicile that the plaintiff must proceed under RURESA.

We also find no merit in Dahlmann’s claim that the Florida order under RURESA precludes the present action. The language of RURESA, as adopted in this Commonwealth, specifically rejects Dahlmann’s proposition. The pertinent part of RURESA at 23 Pa.C.S. § 4503, states:

§ 4503. Remedies additional to those now existing
The Remedies provided in this chapter [RURESA] are in addition to and not in substitution for any other remedies.

This Court has previously endorsed the conclusion that RURESA does not provide a party seeking support with an exclusive remedy. Commonwealth ex rel. McClelland v. McClelland, 303 Pa.Super. 540, 450 A.2d 58 (1982). In that case, we stated, “... the Uniform Act [RURESA] did not intend an order of support entered in one state to act as a bar to the entry of an order in another state having jurisdiction. Id. at 547-548, 450 A.2d at 62. We further held that a support order made by a court of this Commonwealth is not nullified by a support order made by a court of another state regardless of the priority of the issuance of the orders. Id. Further, any amount paid pursuant to the support order of a court of another state shall be credited against any amounts accruing under any support order of a court of this Commonwealth. Id.

The holding in McClelland was reflected in the rationale of the trial court in the case before us. Here, the trial court conceded that it was without the jurisdiction to modify the Florida order but that Carney was not prohibited under either RURESA or Rule 1910.2 from seeking a separate support order in Pennsylvania, provided that Dahlmann is given credit for any amounts paid under the existing Florida order. We, therefore, conclude that Dahlmann’s claim of improper venue must fail.

Third, Dahlmann contends that even if jurisdiction and venue are vested in the Westmoreland County court, the trial court must apply Florida law in resolving any support obligation dispute. After a review of the record, we find that this issue is being raised for the first time on appeal. As such, we are constrained to conclude that Dahlmann’s third issue is waived for the purposes of appellate review. See Pa.R.A.P. 302(a); Kenworthy v. Burghart, 241 Pa.Super. 267, 361 A.2d 335 (1976), appeal dismissed, 478 Pa. 20, 385 A.2d 975 (1978).

Accordingly, because we find jurisdiction and venue to be properly vested in the trial court, we affirm.

Order Affirmed.