author: POPOVICH, Judge:

text:
    631 A.2d 677
    Christi L. GATES, Appellant, v. SERVICEMASTER COMMERCIAL SERVICE, Appellee.
    Superior Court of Pennsylvania.
    Argued June 24, 1993.
    Filed Sept. 28, 1993.

      Girard Rickards, Harrisburg, for appellant.
    Charles O. Beckley, III, Harrisburg, for appellee.
    Before ROWLEY, President Judge, and TAMILIA and POPOVICH, JJ.
   POPOVICH, Judge:

We are asked to review the appeal of an order of the Court of Common Pleas of Dauphin County granting a judgment of non pros against the plaintiff/appellant, Christi L. Gates.

It is well-settled law that the decision to grant a judgment of non pros rests within the discretion of the trial court, and the exercise of such discretion will not be disturbed on appeal absent proof of a manifest abuse thereof. Pennridge Elec. v. Souderton School, 419 Pa.Super. 201, 615 A.2d 95, 98 (1992). We have scrutinized the issues proffered by the appellant. We conclude that no manifest abuse of discretion has transpired here, and, accordingly, we affirm.

This case is governed by Penn Piping, Inc. v. Insurance Company of North America, 529 Pa. 350, 603 A.2d 1006 (1992):

There [our Supreme Court] held that in order for a court to dismiss an action for lack of activity on the docket, it must be shown that (1) a party has shown a want of due diligence in failing to proceed with reasonable promptitude; (2) there is no compelling reason for the delay; and (3) the delay has caused some prejudice to the adverse party, which will be presumed in all cases in which the delay is two years or longer. In cases where the delay was caused by bankruptcy, liquidation or other operation of law, or where the case was delayed awaiting significant developments in the law, there will be a per se determination that a compelling reason for the delay has occurred. Other compelling reasons may be determined on a case-by-case basis.

Streidl v. Community General Hosp., 529 Pa. 360, 603 A.2d 1011, 1012 (1992).

The record discloses that the plaintiff filed a complaint on May 4, 1989, against the defendant/Servicemaster Commercial Service seeking damages (in excess of $2,000) for breach of an oral and written contract of employment entitling her, allegedly, to a 2% commission on her sales. She also alleged that, albeit an “at will” employee, the defendant wrongfully discharged her for having a child out of wedlock, all “contrary to the public interests of th[e] Commonwealth for employers to dismiss employees because of their status as a single parent.” Paragraph 27. On this count, the plaintiff demanded judgment against the defendant in an amount exceeding $5,000.

The defendant filed an answer and new matter on June 26, 1989. A reply to new matter was submitted by the plaintiff on July 19, 1989. The next activity we see in the record is a motion on April U, 1992, for judgment of non pros by the defendant for want of prosecution. Therein, it was averred that, since the July 19th reply to new matter by the plaintiff, [n]o further action occurred in the case until December 10, 1991, when Plaintiff served upon Defendant a Request for Production of Documents.” Paragraph 4.

Further, the defendant asserted that the plaintiff had failed to prosecute her cause with reasonable diligence and without reasonable excuse for the delay, and that it was “prejudiced” because “memories” of the witnesses had diminished due to the delay and the business had been sold “making obtaining the appropriate records difficult.” See also Memorandum in. Support of Motion for Judgment of Non Pros at 4.

Therefore, the defendant sought a non pros under the tripartite test recited in James Brothers Lumber Co. v. Union Banking & Trust of DuBois, 432 Pa. 129, 247 A.2d 587 (1968), which has been re-affirmed in Penn Piping, supra, save for the establishment of a per se rule of prejudice for a 2-year period or longer of unexplained docket inactivity. Pennridge Elec., supra.

In response, the plaintiff filed a brief in opposition to the defendant’s motion for non pros alleging that: ■ (1) the statute of limitations had not run on her cause of action; and (2) the defendant had not demonstrated any prejudice as a result of the delay. In elaboration thereof, the plaintiff wrote in her brief at pages 4-6:

The Plaintiffs Complaint alleges that she was fired by the Defendant on October 31, 1988. (Plaintiffs Complaint, paragraph 10). Because the Plaintiffs lawsuit arises from breaches of contract and wrongful discharge, the cause of action accrued on or about October 31, 1988. Although the count in wrongful discharge is a tort action with a two-year statute of limitations (42 Pa.C.S.A. § 5524), the other two remaining counts are in contract, with a four-year statute of limitations (42 Pa.C.S.A. § 5525). Therefore, at least for the two contract counts, the statute of limitations will not have run on the Plaintiffs causes of action until October 31, 1992. This is significant because the Plaintiff could have waited until October of this year to file her lawsuit ab initio. She would certainly have been within her legal rights to do so. The Defendant alleges in its Brief that “the mere fact that the action is based on events occurring approximately three and one-half years ago and that no action was taken for at least two years is itself prejudicial.” (See Defendant’s Brief, page 4). However, the Legislature has determined that an action of contract may be brought up to four years after the cause of action accrues. Thus, the Legislature has made a decision that a period of three and one-half years is not prejudicial to the Defendant. In light of the statute of limitations on a contract action, the Defendant’s claim of prejudice is simply untenable.
The Defendant also claims to be prejudiced in this action because the ownership of Servicemaster Commercial Service has changed over the past three years. The Defendant has attached an Affidavit to its Motion signed by Charles R. Gibson, Jr., in support of that allegation. The Affidavit indicates that Servicemaster Commercial Service was sold in 1991 and that the former owners have no relations or connection with the present owners. Notably, the Affidavit does not allege on what date in 1991 the ownership was transferred. Furthermore, the fact that the ownership was transferred in 1991 is not dispositive of the issue of whether or not any prejudice accrued to the Defendant. The Defendant had notice of this action at least since May 8, 1989, when the Complaint was served. If in the intervening time documents were lost or destroyed, that is not prejudice that resulted from the delay by the Plaintiff, but the lack of proper security over those documents by the Defendant.

Initially, October 26, 1992, was set to consider the defendant’s motion for judgment of non pros. Thereafter, the hearing was rescheduled for November 25, 1992. At the November 25th hearing, the plaintiff presented no witness(es), believing that the burden of proof was on the defendant to establish prejudice in the delay of the case, and admitted that she had “no explanation for failing to proceed diligently after the last pleading which was ... a reply to New Matter[.]” Trial Court Opinion at 7.

As a result of the plaintiffs inability to rebut Penn Piping’s presumption of prejudice in a case delayed 2 years or longer, the court granted the defendant’s motion for judgment of non pros. A petition to open the judgment of non pros was filed and denied by order dated February 8, 1993. This appeal followed and raises 6 issues for our consideration:

A. DID THE TRIAL COURT ABUSE ITS DISCRETION BY GRANTING A JUDGMENT OF NON PROS AGAINST THE PLAINTIFF, WHEN AT THE TIME THE MOTION WAS FILED, THE STATUTE OF LIMITATIONS HAD NOT YET EXPIRED ON THE PLAINTIFF’S CLAIMS?
B. DID THE TRIAL COURT ABUSE ITS DISCRETION BY GRANTING A JUDGMENT OF NON PROS WHILE THERE WAS AN OUTSTANDING MOTION TO COMPEL THE DEFENDANT TO RESPOND TO THE PLAINTIFF’S DISCOVERY REQUESTS?
C. DID THE TRIAL COURT ERR IN HOLDING THAT THE DEFENDANT DID NOT WAIVE ITS RIGHT TO FURTHER CONSIDERATION OF ITS MOTION BY FAILING TO APPEAR AT ARGUMENT COURT?
D. DID THE TRIAL COURT ABUSE ITS DISCRETION BY GRANTING A JUDGMENT OF NON PROS IN SPITE OF THE FACT THAT THE PLAINTIFF HAD COMPLIED WITH DAUPHIN COUNTY LOCAL RULE 1901 REGARDING THE DISMISSAL OF INACTIVE MATTERS?
E. DID THE TRIAL COURT ABUSE ITS DISCRETION BY SETTING A HEARING ON THE DEFENDANT’S MOTION FOR JUDGMENT OF NON PROS WHEN NEITHER PARTY REQUESTED SAID HEARING AND THE COURT GAVE NO REASON FOR THE HEARING IN ADVANCE.
F. DID THE TRIAL COURT ABUSE ITS DISCRETION BY REFUSING TO CONTINUE THE HEARING UNTIL THE DEFENDANT WAS REQUIRED TO RESPOND TO THE PLAINTIFF’S PENDING DISCOVERY REQUESTS?

Appellant’s Brief at 2.

We have examined each of the plaintiffs claims and find them all to be meritless in the face of the first two prongs of Penn Piping test being satisfied, i.e., lack of due diligence in failing to proceed with reasonable promptitude and no compelling reason for the delay. Moreover, the delay from the date of the reply to new matter filed by the plaintiff (July 19, 1989) and the next activity on the docket being the defendant’s motion for judgment of non pros (April 14, 1992), we have a period of inactivity of over 2 years without explanation by the plaintiff. See Trial Court Opinion at 7. And, the subsequently filed motion to compel discovery by the plaintiff on November 15, 1992, did not break the continuity of unexplained docket inactivity, and, therefore, does not implicate the compelling reasons set forth in Penn Piping, supra, to excuse the delay. See Streidl, supra. Nor do we find the plaintiffs December 10,1991, request for discovery of such a compelling nature as to fall within the list set forth in Penn Piping, supra, to excuse inactivity in a case and lift the onus from the shoulders of the plaintiff to establish a reasonable excuse for delay.

Additionally, we wish to elaborate on the lower court’s denial of the plaintiffs petition to open judgment of non pros despite the fact that the statute of limitations (4 years) had not yet expired on the breach of contract claim at the time the Motion For Judgment Of Non Pros For Want Of Prosecution was filed.

We begin our discussion with a review of Bucci et al. v. Detroit Fire & Marine Ins. Co., 109 Pa.Super. 167, 167 A. 425 (1933), wherein an action upon a contract of insurance for loss by fire was instituted on April 28, 1931, by writ of summons. The plaintiffs failed to comply with a local rule of court requiring that a “statement of claim” be filed within a specified time period. As a result, a judgment of non pros was entered on June 29, 1931.

However, with the plaintiffs’ payment of costs on December 28, 1931, a summons was issued on the same contract of insurance. The defendant insurance company filed a petition to set aside the summons on the ground that the plaintiffs’ second suit was precluded because their initial cause of action had been non prossed. In response, the plaintiffs averred, inter alia, that the one year statute of limitations to bring suit on a contract action had not yet expired and the costs of the initial suit had been paid.

On appeal from the order striking the plaintiffs’ second suit, we characterized the lower court’s order as “in effect holding that the judgment of non pros was a bar to any other proceeding in spite of the fact that the statute of limitations had not expired.” 167 A. at 426. In the process of reversing the lower court’s order striking the judgment of non pros, we wrote:

... the legal effect of the term “non pros.” ... [is a]n abbreviation of non prosequitur, he does not pursue. Where the plaintiff, at any stage of the proceedings, fails to prosecute his action, or any part of it, in due time, the defendant enters non prosequitur, and signs final judgment, and obtains costs against the plaintiff, who is said to be non pros’d. The name non pros, is applied to the judgment so rendered against the plaintiff.
The effect of a judgment of non pros, seems to have been well recognized by the profession as we find a dearth of decisions. In the case of Vought v. Sober, 73 Pa. 49, 51 [ (1873) ], the court held that a judgment of nonsuit rendered by a justice of the peace is no bar to a suit upon the same cause of action and that its only effect was to put an end to the action without concluding the rights of the parties.
In a well-considered opinion by Judge Staake, in the case of Derrickson v. Colonial Trust Co., 35 Pa.Co.Ct.R. 522, and in 17 Pa.Dist.R. 80, interpreting the effect of the judgment of non pros, upon a rule of court of the county of Philadelphia similar to the rule in question, except that the period was twelve months [instead of sixty days], the court held as follows: “Where after the issuance of the writ of summons no statement is filed by the plaintiff within twelve months of a judgment of non pros, has been entered by the prothonotary under Rule 28, the plaintiff may, nevertheless, after paying all the costs of the previous proceedings, commence a new suit for the same cause of action at any time which is not beyond the period allowed by the statute of limitations for the bringing of suits for the injury alleged.” The effect of a judgment of non pros, has usually arisen in cases where the judgment has been entered after the statute of limitations has expired, which is not the present situation. In the case of Kulp v. Lehigh Valley Transit Co., 81 Pa.Super.Ct. 296 [ (1923) ], cited at length in the opinion of the court below, where a judgment of non pros, was entered under a rule of court that unless a statement of plaintiffs cause of action was filed within one year after the issuance of the writ, a judgment of non pros, should be entered by the defendant. The writ was issued on January 10, 1919, for an injury suffered on July 4, 1918, while riding as a guest in an automobile which was struck and wrecked by an electric car of the defendant company. No statement having been filed, judgement of non pros, was entered January 14, 1920. The attorneys for the plaintiff on the 19th day of January, 1920, presented their petition to the court to take off the judgment of non pros. After hearing, the court struck off the judgment of non pros, upon payment of costs, and the Superior Court held that such action was a proper exercise of its discretion. On page 299 of the opinion, the court said, “after the judgment of non pros, was entered, the plaintiff could have paid the costs and brought a new action.” That a judgment of non pros, is not a bar to a subsequent action is further supported by the case of Murphy v. Taylor, 63 Pa.Super.Ct. 85[ (1916) ], and cases therein cited. “Where after a nonsuit [non pros.] has been entered the plaintiff brings a second action against the same defendant for the same cause, within a reasonable time, the court will stay the proceedings until the costs of the first suit are paid; but the proceedings will not be quashed.”
Appellants, by the failure of counsel to file their statement, suffered the penalty of having that particular action non pros’d, which could only be set aside by an order of court, but the legal effect of the non pros, could not prevent the entry of a suit for the same cause of action within the statute of limitations. We do not agree with the court below that to hold otherwise would annul and render useless the rule of court. The penalty suffered by the plaintiffs is the delay in the trial of their cause and the payment of costs incurred, yet if the statute of limitations has not expired the non pros, of the first action cannot prevent the institution of the second suit.

167 A. at 426, 427-28 (Citations omitted; emphasis added). Accord Gordon-Stuart Ltd. v. Allen Shops, Inc., 239 Pa.Super. 35, 361 A.2d 770, 771 (1976).

At first blush, it would appear that Bucci, supra, stands for the proposition that, if a statute of limitations has not run, a plaintiffs cause of- action being non prossed does not preclude a second suit upon the identical cause of action, provided that the costs incurred in the prior lawsuit have been paid by the plaintiff.

However, a close scrutiny of Bucci and its progeny discloses a caveat to filing a second suit on the same cause of action for which a non pros has been entered, i.e., one must still petition the court and satisfy the three-pronged test to open a judgment of non pros: petition to open must be filed timely; a reasonable explanation for the delay must be given; and allegations constituting a meritorious cause of action need to be proffered. As we stated in Bon Homme Richard Restaurants, Inc. v. Three Rivers Bank & Trust Co., 298 Pa.Super. 454, 444 A.2d 1272, 1273 (1982), on this exact point:

Whether the party requests that the original case be reinstated or requests permission to start the same cause of action under a new term and number is evidently not material. What is important is that he shall have cogent reasons for his inactivity, and that the court shall determine whether permission to proceed will be forthcoming. [Emphasis in original]

At bar, we have a unique procedural posture in that prior to granting the defendant’s judgment of non pros, the plaintiff was accorded the opportunity to proffer in court a reason to forestall the entry of non pros for her 2'/¿-year period of inactivity in the case. She was able to provide no reason, let alone a cogent one, for the lack of docket activity during the time in question.

The fact that the statute of limitations had not yet run on the plaintiffs breach of contract claim at the time the defendant’s motion for judgment of non pros was filed is of no moment. The main concern in an action seeking the entry of a judgment of non pros “is simply a dismissal for want of diligent prosecution.” See Gordon-Stuart Ltd., supra. Under Bucci, supra, a non pros may be entered “at any stage of the proceedings.”

The statute of limitations comes into play only in the sense that, if it has not run on the particular cause of action, the plaintiff may seek a reinstatement of the suit with the payment of costs and satisfaction of the tripartite test for opening judgment of non pros. Mazer v. Sargent Electric Co., 407 Pa. 169, 180 A.2d 63 (1962); Bon Homme Richard Restaurants, Inc., supra; Smith v. Southeastern Pennsylvania Transportation Authority, 297 Pa.Super. 267, 443 A.2d 829 (1982); Commonwealth v. Bailey, 278 Pa.Super. 51, 419 A.2d 1351, 1352 (1980); Corcoran v. Fiorentino, 277 Pa.Super. 256, 419 A.2d 759 (1980); Public Welfare v. Flowers, 46 Pa.Cmwlth. 326, 407 A.2d 896, 897 n. 2 (1979); Thompson v. Cortese, 41 Pa.Cmwlth. 174, 398 A.2d 1079, 1082 (1979); cf. Brigham v. Eglin’s of Philadelphia, Inc., 406 Pa. 99, 176 A.2d 404 (1962) (Personal injury accident occurred May, 1958; suit instituted by writ of summons July, 1958; defendant ruled plaintiff to file a complaint August, 1958; plaintiff never filed a complaint; non pros entered December, 1958; petition to remove non pros filed December, 1960; and petition to open denied on grounds that plaintiff did not act with reasonable promptness and there was an absence of compelling equities).

From our assiduous review of the law, we find that, where a judgment of non pros has been granted while a statute of limitations for the cause sued upon has not yet expired, the plaintiff may obtain reinstatement of his/her suit by satisfying each prong of the tripartite test cited supra and paying the costs in the earlier action. Id.

Instantly, the plaintiffs failure to present any reason for the over 2-year delay (docket inactivity) in moving the suit forward runs counter to the per se rule of prejudice adopted by our Supreme Court in Penn Piping, supra, for unexplained docket inactivity for two years or more. See Pennridge Elec., supra; see also Flowers, supra; Thompson, supra.

If the plaintiff had presented a reasonable excuse for her failure to act over two years in moving her suit along the adjudicatory system, under Penn Piping, supra, and Bucci, supra, the defendant’s motion for judgment of non pros would not have been granted. Absent such a response to the court’s query below, (which void has not been explained on appeal) as to her reason(s) for inactivity, we will not overrule the court’s refusal to find merit to the plaintiffs statute of limitations argument as a ground for granting her petition to open judgment of non pros.

Next, we find that the trial court’s opinion to be an adequate response to the plaintiffs appellate claims cited supra at “B”, “D”, “E” & “F”. As for the point asserted under “C” of the plaintiffs allegations, since she had the burden of proof at the hearing on November 25, 1992, to resolve the defendant’s motion for judgment of non pros, she had the obligation to establish her justification for the court not entering a non pros. The absence of the defendant, albeit unbecoming a barrister, did not deflect from the objective of the hearing: For the plaintiff to establish justification for the undue delay (of over 2 years) in prosecuting the case.

For the reasons hereinstated, finding no merit to any of the plaintiffs contentions, we affirm.

Order affirmed.

      . In the interim, a judge other than the one hearing the motion for judgment of non pros granted the plaintiff’s motion to compel discovery on November 16, 1992, against the defendant. It was not complied with.

      . Analogous to the case at bar is a defendant's appeal from a summary conviction before a District Justice to Common Pleas Court for a trial de novo. Even though the defendant may not appear at the de novo hearing, the Commonwealth still has the burden of going forward with the evidence of proving the defendant guilty of the crime(s) charged. Likewise, although the defendant absented itself from the November 25th hearing, the plaintiff had the burden of rebutting the presumption of prejudice for delaying the case for longer than 2 years. Penn Piping, supra. Her failure to do so undermined her case and not the absence of the defendant.

      . Specifically, as for points “B” and "F”, the court below observed that the plaintiff’s discovery motion was filed subsequent to the motion for judgment of non pros "and while action on same was pending.” Therefore, assessment of the motion for judgment of non pros took precedence and stayed any action on the discovery motion until the non pros question was resolved.
      What purpose would be served by permitting discovery to occur when a motion for judgment of non pros might be granted and bring a close to the case? None, we believe. Thus, the court acted properly in not permitting discovery to continue in the face of an outstanding motion for judgment of non pros.
      As for the plaintiff's point "D”, that she was entitled "to rely upon the procedure established in Dauphin County Local Rule 1901 as being the sole method of dismissing a case for being inactive for a period of time,” the court below remarked that Local Rule 1901 (known as the “purge rule”) was a "case management tool” employed by the court to dismiss cases inactive for 2 years or more. Nonetheless, the court found and we agree, Local Rule 1901 did not preclude individual litigants to a suit from asserting their common law right to a reasonably prompt conclusion to a case. Consequently, the presumption afforded by Penn Piping, supra, was not superseded by Local Rule 1901’s method for dismissing inactive cases:
      Pursuant to Dauphin County Local Rule 1901, objections to the dismissal of inactive matters is to be argued at a call of the list. It is the local custom that only the attorneys for the parties are present at the call of the "Purge List”.
      Appellant’s Brief at 15-16 (Emphasis added). It would appear that the plaintiff's complaint focuses upon denying her counsel the ability to argue at the call of the list, as is provided for by Local Rule 1901. We would hold that such a format (to argue against dismissal of a case inactive for over 2 years) was provided to the plaintiff, albeit in the context of a hearing where both witnesses and oral argument could be presented. Accordingly, we fail to discern the logic in the plaintiff’s argument whereby, in essence, she was accorded more of an opportunity to argue against dismissal of her suit at a formal hearing than would have been allowed under Local Rule 1901.
      Lastly, plaintiff’s point "E” contends that it was error for the court to set a hearing to resolve the defendant's motion for judgment of non pros without the request for the same by either party. As the court noted, the hearing was scheduled for the benefit of the plaintiff to avail her the occasion to rebut Penn Piping's presumption of prejudice for cases inactive for 2 years or longer. To have decided the case upon the pleadings alone would have been improper, given that the plaintiff’s opportunity to provide reasons for the inactivity would have been foreclosed. Accordingly, a hearing was to the plaintiff’s advantage to afford her the occasion to give a reasonable excuse for her inactivity. The fact that she was not able to give reasons for her failure to prosecute does not detract from the propriety of scheduling a hearing, albeit sua sponte, by the court.


source: Caselaw Access Project

author: DEL SOLE, Judge.

license: Public Domain

text:
    631 A.2d 684
    Raymond L. WEINMANN, Appellee, v. John F. MEEHAN, Sr., Mary K. Meehan, Executrix and John F. Meehan, Jr., Executor of the Estate of Mary Meehan, Deceased, John F. Meehan, Jr., Mary K. Meehan, Judith Bernicker and Michael Meehan, Appellants.
    Superior Court of Pennsylvania.
    Argued July 1, 1993.
    Filed Sept. 27, 1993.

      Ira P. Tiger, Philadelphia, for appellants.
    David N. Bressler, Blue Bell, for appellee.
    Before DEL SOLE, BECK and HESTER, JJ.
   DEL SOLE, Judge.

This is an appeal from a Judgment entered following an order confirming an arbitration award in favor of Appellee and against Appellants. We affirm.

Necessary to a discussion of the claim presented on appeal is a recitation of the procedural history of the parties’ legal dispute which brought this case before us.

In 1989 Appellee, Raymond L. Weinmann, and Meehan-Weinmann, Inc., suing derivatively through Mr. Weimann, filed a Complaint in Equity. The Complaint named as defendants Meehan-Weinmann Inc., Thomas Hayes and each of the Appellants, with the exception of Michael Meehan. The defendants filed Preliminary Objections asserting that the court lacked jurisdiction because under the terms of a Shareholders Agreement and the Corporate By-Laws disputes were required to be submitted to arbitration under the auspices of the American Arbitration Association. The court sustained the defendant’s preliminary objections and dismissed the Complaint without prejudice to the plaintiffs’ right to assert their claims in arbitration.

In 1990 Appellee, Raymond Weinmann, filed a Demand for Arbitration with the American Arbitration Association naming as respondents those persons listed as defendants in the previous action and Michael Meehan. Two of the respondents, John Meehan Sr. and Meehan-Weinmann, Inc. filed a Counterclaim. An arbitrator was appointed and a hearing was held over a ten day period of time. The arbitrator ruled in favor of Appellee. Following the receipt of a petition to Confirm the Award and a Petition to Vacate or Modify the Award, the court ultimately confirmed the Award and Judgment was entered.

In ruling in Appellee’s favor the court noted that the corporate by-laws directed that the arbitrator’s decision would be final and binding, and that it was the defendants themselves who moved for a dismissal of the equity action by referencing the arbitration clause contained in the corporate by-laws. The court ultimately ruled that Appellants could not show any just reason to require the vacation or modification of the award under the rule requiring a common-law arbitration to be vacated or modified only where there is a clear showing that the losing party was denied a hearing, or that fraud, corruption, or other irregularity caused the issuance of an unjust, inadequate or unconscionable award. In challenging this decision Appellants assert that there was sufficient reason to refuse to confirm the award or to vacate or modify it because the arbitrator exceeded his jurisdiction. Specifically Appellants assert that because they were never shareholders of Meehan-Weinmann, Inc., but rather directors and former directors they could not properly be subject to arbitration where monetary damages were sought and obtained.

We disagree. Appellants, with the exception of one, were each named as defendants in an earlier action. Precisely because they objected to the court’s jurisdiction over them, their preliminary objections were granted. These objections pointed to clauses contained in the corporate by-laws which mandated that disputes be resolved by arbitration. Accepting the Appellants’ position, the court did as they requested and dismissed Appellee’s complaint, without prejudice to his rights to proceed against Appellants in arbitration. It is only after the arbitration action was filed, litigated throughout ten days of hearings and determined adversely to them that Appellants objected and argued that their status with the corporation made the by-laws’ arbitration requirement inapplicable to them and arbitration an inappropriate forum to resolve the instant dispute. We conclude that under these circumstances Appellants are not entitled to the relief they seek.

We find this matter analogous to Hallo v. Flore, 386 Pa.Super. 178, 562 A.2d 856 (1989). Therein the plaintiff filed a complaint and discovery began, an amended complaint and preliminary objections, answers, new matters, cross-claims and counterclaims were filed. A short time before the scheduled pre-trial conference the court was presented for the first time with a motion requesting to have the case transferred to arbitration. The court accepted the plaintiffs argument that the defendant’s untimely request for transfer of the case to arbitration caused delay and prejudice which should result in a waiver of the defendant’s claim to transfer the matter. The court cited Miller v. E.W. Smith Co., 581 F.Supp. 817 (D.C.Pa. 1983) where the defendants waited until discovery was closed and the case was ready for trial before they asserted the application of an arbitration provision in a customer’s contract. The defendants were found in that case to have manifested a clear intent to utilize the judicial process by their actions and the demand for arbitration of the dispute was disallowed.

Although this case does not concern the transfer of a matter to arbitration, we find the logic of the Hallow and Miller cases persuasive in light of the history of this case. While we are not unmindful that questions concerning an arbitrator’s jurisdiction are a proper subject for a court to review, Gaslin, Ins. v. L.G.C. Exports, Inc., 334 Pa.Super. 132, 482 A.2d 1117 (1984), we nevertheless rule that parties by their conduct may assent to have a matter resolved by a particular tribunal.

Appellants succeeded in having the first court action dismissed by arguing that it was properly a matter for arbitration. When arbitration was commenced, no objection was made by the original defendants in the civil action or by the newly named respondent, Michael Meehan. Appellants do not present for our review a transcript of the 10 days of proceedings before the arbitrator, and therefore there is no evidence in the record to show that they objected at any time during the proceedings to resolution of the dispute or any portion of it, by arbitration. We can only conclude that Appellants did not express concern on the record before the arbitrator that matters sought to be litigated were outside the arbitrator’s jurisdiction.

We will not allow Appellants to ask the courts to recognize that a matter be resolved in arbitration, proceed through the arbitration process, without objection, and when receiving an adverse award, object to the resolution of the matter by arbitration. We will not sanction this type of process.

Judgment affirmed.


author: BECK, Judge:

text:
    631 A.2d 1014
    COMMONWEALTH of Pennsylvania, v. Gary BROWN, Appellant.
    Superior Court of Pennsylvania.
    Argued July 21, 1993.
    Filed Sept. 20, 1993.

      Carmen F. Lamancusa, New Castle, for appellant.
    William M. Panella, Dist. Atty., New Castle, for Com., appellee, (submitted)
    Before CAVANAUGH, BECK and CERCONE, JJ.
   BECK, Judge:

This case requires us to decide whether and to what extent a trial court may take judicial notice of a blood testing laboratory’s compliance with the requirements set forth in the Motor Vehicle Code, 75 Pa.C.S.A. § 1547(c). We affirm.

Appellant was stopped by police for investigation of a traffic violation. After speaking with appellant, the officer requested that he perform several field sobriety tests, one of which, the officer testified, appellant failed twice. The officer thereafter transported appellant to a local hospital and requested that his blood be tested for the presence of alcohol. The results of that test were admitted into evidence at trial and formed the basis of appellant’s conviction under 75 Pa. C.S.A. § 3731(a)(4), driving with a blood alcohol level of .10% or above. Appellant claims that the Commonwealth did not lay a proper foundation for admission of the test results.

In any DUI proceeding where blood, breath or urine tests are to be utilized, the Commonwealth is bound by statute to establish the validity of the tests. The law requires that:

In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 3731 or any other violation of this title arising out of the same action, the amount of alcohol or controlled substance in the defendant’s blood, as shown by chemical testing of the person’s breath, blood or urine, which tests were conducted by qualified persons using approved equipment, shall be admissible in evidence.
Jjt * ‡ * Sjc Jft
Chemical tests of blood or urine shall be performed by a clinical laboratory licensed and approved by the Department of Health for this purpose using procedures and equipment prescribed by the Department of Health. For purposes of blood and urine testing, qualified person means an individual who is authorized to perform those chemical tests under the act of September 25,1951 (P.L. 1539 No. 389), known as “The Clinical Laboratory Act.”

75 Pa.C.S.A. § 1547(c)(2).

The Clinical Laboratory Act sets forth a series of rules related to the operation of testing facilities, including minimum education and work experience requirements for the laboratory’s supervisor, permit application requirements, and Department of Health rights of inspection. It also vests in the Department of Health the power to adopt rules and regulations governing testing procedures. See 35 Pa.S.A. § 2151 et seq.

In this case, the Commonwealth offered the results of appellant’s blood test with very little foundational support. After the prosecutor offered the test result as evidence of appellant’s intoxication, appellant objected to its admission because it was not made in compliance with § 1547(c)(2). The prosecutor then asked the court:

[ASSISTANT DISTRICT ATTORNEY]: We’d request that judicial notice be taken that St. Francis is an approved laboratory.
THE COURT: We will take judicial notice that they have been for many years an approved laboratory for these purposes.

Appellant argues that the above exchange was insufficient to sustain the Commonwealth’s burden imposed under the Motor Vehicle Code, 75 Pa.C.S.A. § 1547. In an effort to understand the requirements of the statute and its interpretation by this court, we review those decisions which have focused on this issue. Appellant insists that the case law supports his argument while the Commonwealth argues that the trial court acted properly in finding the proper foundation was laid.

In Commonwealth v. Culp, 378 Pa.Super. 213, 548 A.2d 578 (1988), a panel of this court found that the Commonwealth had failed to sustain its burden of proof under § 1547(c)(2). Culp was a Commonwealth appeal of a trial court’s suppression of blood test results in a DUI case. In his motion to suppress, Culp asserted that the method and equipment used during his blood test did not meet required standards, that the manner of testing was not as specified by law and that he did not voluntarily consent to the test. At the suppression hearing, the Commonwealth asked the court to take judicial notice that the lab was licensed and approved under the Clinical Laboratory Act and offered a reference to the Pennsylvania Bulletin in which the lab was cited as an approved facility. The Commonwealth also offered a letter from the Department of Health which stated that approval of a lab meant that the lab’s procedures, equipment and personnel were qualified as well.

The Culp court ruled that in light of the specifically asserted infirmities in the testing method, personnel and equipment, mere reference to the Pennsylvania Bulletin was insufficient to satisfy the Commonwealth’s burden on the motion to suppress. Because the Commonwealth presented no evidence regarding procedures or personnel qualifications, the court reasoned, it had not met its burden of proof. The court stated that Culp’s specific claims regarding lab procedures and equipment warranted a more detailed response from the Commonwealth. Id. at 219, 548 A.2d at 581.

It would appear then, after Culp, that if the defendant specifically asserts infirmities in the testing methods, personnel or equipment, reference to the Pennsylvania Bulletin is insufficient to prove compliance with § 1547(c)(2). However, a subsequent panel asserted a more general principle and upheld reference to the Pennsylvania Bulletin and judicial notice thereof as sufficient under § 1547(c)(2). In Commonwealth v. Garofalo, 386 Pa.Super. 363, 563 A.2d 109 (1989), the trial court took judicial notice that the hospital in which the blood test was performed was rated as an approved facility in the Pennsylvania Bulletin. “As such,” the court reasoned, “all equipment, personnel, and procedures used are qualified and approved in accordance with § 1547(c)(2) ...” Id. at 369, 563 A.2d at 112.

In the same year that Garofalo was decided, a different panel of this court decided Commonwealth v. Kravontka, 384 Pa.Super. 346, 558 A.2d 865 (1989), another case involving the validity of blood alcohol test results. In Kravontka, the laboratory manager testified that the lab was approved by the Department of Health, and the court took judicial notice of the fact that the hospital was approved to perform blood alcohol analysis pursuant to a reference in the Pennsylvania Bulletin. This court found that the lab manager’s testimony and judicial notice of the Pennsylvania Bulletin citation constituted compliance with § 1547(c)(2) and, therefore, a proper foundation was laid to allow admission of the test results.

Analysis of the above-cited case law does not provide us with a clear understanding of what is necessary to prove compliance with § 1547(c)(2). It appears that some cases, such as Garofalo, permit a Pennsylvania Bulletin reference to satisfy the statute while others, such as Culp, may require more. Our research reveals that, although at first glance the cases appear to be at odds, a closer analysis reveals otherwise. See page 1018, infra.

It is clear that, by statute, the contents of the Pennsylvania Bulletin are to be judicially noticed. 45 Pa.C.S.A. § 506. However, in determining whether judicial notice alone is sufficient to satisfy the basic requirements of § 1547, we examine the process under which the state approves a laboratory for testing purposes. Our inquiry focuses on whether publication in the Pennsylvania Bulletin that a laboratory is approved carries with it sufficient indicia that the test results reported by the laboratory will be reliable.

Under the Clinical Laboratory Act, Pennsylvania’s Department of Health (“the Department”) is vested with authority to promulgate rules with respect to testing procedures and approvals. Pursuant to this authority, the Department has put in place a detailed and thorough program of testing and approving laboratories (“lab” or “labs”) that provide, among other things, blood testing for alcohol content. The Department’s Division of Chemistry and Toxicology handles the testing and approval programs. We have made a thorough review of the Department’s approval process and have studied with interest the documents that are sent regularly to participating labs, including applications and testing questionnaires. We also reviewed the regulations, promulgated by the Department, which govern the approval process.

When a lab desires to be approved, it makes an application to the Department, informing it, among other things, about its equipment, personnel and testing methods. The application requires detailed descriptions of methodology used by the lab and also requires that the lab complete “Laboratory Personnel Qualification Appraisals” for all personnel. Each appraisal sets forth an employee’s educational background, clinical laboratory training, license, certification and registration information, his or her passing of state proficiency examinations and clinical laboratory experience. The appraisals are evaluated by a state reviewer who determines, on an individual basis, whether an employee qualifies for the position stated. The Department’s regulations set forth minimum requirements for education and training of personnel. See 5 Pa.Code §§ 5.21-5.24.

Once an application is received and the lab is considered by the Department to be eligible for state approval by virtue of its methods, machinery and staff, the Department does a series of tests on specimens the lab has analyzed in an effort to determine if the testing procedures and results are correct. In many instances, the Department will send an examiner to the lab to observe procedures, equipment and personnel.

In the event the lab ultimately is approved by the State, it is subjected to continued testing from the Department. Approved labs are required to participate in four surveys per year. In each survey, five specimens are sent to the lab by the state and the lab is required to analyze the specimens and return them to the Department, which then grades the analyses to determine the propriety of the results. Included in the survey is a questionnaire concerning the procedures and equipment utilized by the lab. The lab’s performance in testing the specimens and its answers to the questionnaire are the bases upon which a lab’s approval is maintained or revoked.

All new labs approved for testing and all previously approved labs that maintain approval are then listed by the Department in the Pennsylvania Bulletin; this listing occurs on a semi-annual basis. They are presented in alphabetical order and are listed as approved for serum and plasma analyses (indicated by an S), approved for blood analyses (indicated by a B) and approved for serum, blood and plasma analyses (indicated by an SB).

Our review of the procedures utilized by the Department lead us to the conclusion that publication in the Pennsylvania Bulletin and judicial notice thereof is sufficient to satisfy the requirements of § 1547(c)(2). The Department’s careful and thorough methods serve to insure that test results from an approved facility are valid and reliable. The extensive application process and the rigorous testing methods are designed to allow only those labs with high standards for performance to gain and/or maintain approval.

We note that the purpose of judicial notice is to avoid the formal introduction of evidence of a fact so well known in the jurisdiction that introduction of evidence in support thereof is unnecessary; however, judicial notice does not deny an opposing party the opportunity to disprove the fact sought to be judicially noticed. Commonwealth v. Covert, 322 Pa.Super. 192, 469 A.2d 248, 257 (1983). Therefore, a party who believes that, notwithstanding a lab’s state approval and publication in the Pennsylvania Bulletin, some error in testing occurred, i.e., the improper timing of a test or an equipment malfunction, is free to present evidence of that error to rebut the inference created by judicial notice. See Appeal of Albert, 372 Pa. 13, 22, 92 A.2d 663 (1952); Commonwealth v. Morgan, 265 Pa.Super. 225, 401 A.2d 1182, 1192 (1979).

We believe this is what occurred in the Culp case. There, appellant alleged specific deficiencies in the testing process. The suppression court evaluated the claims and found that their specificity warranted a more detailed response from the Commonwealth than mere reference to the Pennsylvania Bulletin. Therefore, the holding in Culp is not at odds with Garofalo or our decision today. It instead reflects a scenario possible in any case in which blood alcohol tests are offered as evidence: A party may convince the court that even though a lab has state approval, the circumstances surrounding his or her test were such that the results are not reliable. We caution, however, that only specific allegations of testing errors, to which the trial court gives credence, and not general, boilerplate objections to the admission of test results, will mandate more than reference to the Pennsylvania Bulletin. See Culp, supra.

In the instant case, the Commonwealth requested that the trial judge take judicial notice of the fact that St. Francis Hospital was approved to perform blood alcohol analysis. The trial judge, having had previous experience with DUI cases in Lawrence County and familiar with the approved status of the facility, granted the Commonwealth’s request. Appellant claims that the Commonwealth’s failure to cite to the Pennsylvania Bulletin is fatal to admission of the test results.

Neither party has afforded this court the courtesy of citing to the Pennsylvania Bulletin. Our own research reveals that at the time of appellant’s blood test, St. Francis was indeed approved by the Department for blood, serum and plasma analyses. See Pennsylvania Bulletin, Vol. 21 No. 1, January 5, 1991. Further, St. Francis had been approved for many years prior to appellant’s testing date and continues to maintain its approved rating to the present date. In a county the size of Lawrence County, the fact that the major hospital in the area is approved for purposes of blood alcohol testing would likely be a fact well known to the court. The trial court committed no error in judicially noticing this fact. See Commonwealth v. Brown, 312 Pa.Super. 383, 458 A.2d 1012 (1983) (judicial notice intended to avoid proof of fact so well established as to be a matter of common knowledge) See also Commonwealth v. Stumpo, 306 Pa.Super. 447, 452 A.2d 809, 819 (1982) (judge who has intimate, ongoing knowledge of the court calendar should be able to take judicial notice of that knowledge). We advise, however, that in the future, in order to prevent an appeal based on whether a lab is approved, the Commonwealth should cite to the applicable volume and number of the Pennsylvania Bulletin. This simple step will provide a complete record with respect to the Commonwealth’s burden of compliance with § 1547.

Because none of appellant’s allegations of error is meritorious, we affirm the judgment of sentence.

      . Appellant challenged the propriety of the traffic stop at a pre-trial motion to suppress and, after denial of the motion, preserved that challenge for appeal. Our review of the issue leads us to the clear conclusion that the stop was reasonable and lawful in light of what the officer observed and we therefore affirm the ruling of the suppression court. See Commonwealth v. McElroy, — Pa.Super.-, 630 A.2d 35 (1993).

      . Appellant also claims that the copies of his test results, offered by the Commonwealth without the presence of the laboratory's custodian of records, were not properly admitted as required by statute. We disagree. The law permits the use of copies of medical records to be proved as to foundation, identity and authentication without any preliminary testimony, where the records are certified in a manner consistent with the statute. It also permits a health care facility to forward copies of original records to the party serving a subpoena for such records and, where certified by the facility's custodian of records and duly notarized, permits the copies of the records to be offered in court in lieu of the custodian's personal appearance. See generally 42 Pa. C.S.A. §§ 6151 and 6152. Our review of the record convinces us that the Commonwealth satisfied all of the requirements of the statute.

      . Indeed, in Commonwealth v. Leib, 403 Pa.Super. 223, 588 A.2d 922, alloc. denied 528 Pa. 642, 600 A.2d 194 (1991), the court commented on the holding in Culp and stated:
      In Culp, the Commonwealth not only attempted to prove that the laboratory was an approved facility by having the court take judicial notice of the fact ... but also attempted to prove, solely through judicial notice, that a department of health approval necessarily meant that the procedures, personnel and equipment were properly qualified and approved to perform the tests mandated by the Clinical Laboratory Act. The Culp court held ... that judicial notice was proper to show only that the laboratory in question had been approved.

        Id, 403 Pa.Super. at 239, 588 A.2d at 930 n. 8 (citations omitted).
      Whether or not this comment in Leib is a correct statement of the holding in Culp is irrelevant. The comment is dicta and, as such, is not binding on us.

      . An appraisal must be completed for every position in the laboratory, including Director, General Supervisor, Technical Supervisor and Technician.

      . This applies, of course, only to those cases wherein the Commonwealth chooses to rely on the Pennsylvania Bulletin in meeting its burden under § 1547. The Commonwealth is free to present witnesses to testify to the lab’s approval and the adequacy of its methods, procedures, equipment and personnel.


author: TAMILIA, Judge:

text:
    631 A.2d 1019
    In the Interest of J.R.W., Appeal of V.F., Natural Mother. In the Interest of J.R.W., Appeal of A.W., Natural Father.
    Superior Court of Pennsylvania.
    Argued June 24, 1993.
    Filed Sept. 21, 1993.

      Andrew C. Sheely, Public Defender, Shiremanstown, for V.F.
    Bruce J. Warshawsky, Harrisburg, for A.W.
    Michael A. Scherer, Carlisle, for appellee.
    Ruby D. Weeks, Carlisle, for Cumberland County Children and Youth Services, participating party.

      Before ROWLEY, President Judge, and TAMILIA and POPOVICH, JJ.
   TAMILIA, Judge:

This is an appeal by parents, V.F. and A.W., from the Order of August 20,1992, adjudicating the child, J.R.W., a dependent child, issuing a finding of abuse naming either or both parents as perpetrators of such abuse, and awarding care and custody of the child to Cumberland County Children and Youth Services (CYS) for placement in a foster home.

A petition was filed by CYS on or about June 24, 1992, alleging that two-month old J.R.W. was dependent and abused. An emergency shelter hearing was held by the Honorable George E. Hoffer on June 25, 1992, and an Order was entered finding, by clear and convincing evidence, that the child was without proper parental care and control and, therefore, dependent.

A full hearing was held on July 14 and 16,1992. Testimony was given by a neonatologist, Dr. Blutstein, whose exam revealed bruises on J.R.W.’s head and scratches on her face. A spinal tap indicated blood inside her central nervous system, and a CAT scan revealed a serious, life-threatening problem to the left side of her brain. Testimony was also given by Dr. Austin, a board-certified radiologist. After examining J.R.W.’s radiograph, Dr. Austin discovered multiple rib fractures and swelling in the left side of the brain. A third doctor, Dr. Eggli, a board-certified radiologist and assistant professor of radiology and pediatrics, also examined J.R.W.’s x-rays, discovering approximately seventeen fractures in the rib cage and one in the leg, which were in various stages of healing. Her testimony also revealed that J.R.W. had two separate, severe head injuries which occurred on different dates.

A fourth doctor, Dr. Lucking, director of pediatrics and a board-certified member of the Hershey Medical Center staff, detailed J.R.W.’s physical condition as currently undergoing seizures and requiring ventilator support. Also, her brain was swollen and hemorrhaging under her skull.

Further testimony by family members and social workers revealed that the parents provided various, inconsistent reasons for the injuries to J.R.W. The trial court found these stories to be inconsistent with the evidence and medical testimony presented at the hearings.

The trial court determined that J.R.W. was unquestionably an abused child. The testimony and evidence presented indicated J.R.W. had suffered life-threatening injuries while in the care and custody of her parents. The medical evidence established that J.R.W.’s injuries were consistent with child abuse and that she could be classified as a “shaken baby.” Furthermore, although the trial court was unable to determine whether one or both of JRW’s parents were the perpetrators of the abuse, it found that the life-threatening injuries were sustained while in her parents’ care. As such, it found by clear and convincing evidence that J.R.W. was without proper parental care and control and continued the previous Order of June 25, 1992. After the submission of briefs, the trial court issued the Order from which this appeal is taken.

While appellants, A.W. and V.F., do not contest the finding of dependency or the placement of their child out of the home, they appeal the trial court’s finding holding them responsible for the abuse of their daughter. Moreover, in light of the fact that the parents stipulated the child is dependent, they have waived any right to contest the dependency finding before this Court. Appellants present the following issues for our consideration. Initially, appellants argue the Child Protective Services Law, 23 Pa.C.S. § 6301 et seq. (“the Law”), does not provide a means to adjudicate abuse and it is inappropriate to invoke the Juvenile Act, 42 Pa.C.S. § 6301 et seq. (“the Act”), to make such an adjudication because the Act is geared entirely to the reuniting of the family and may not be a basis upon which the finding of abuse by a parent can be made. More simply stated, they contest the ability of the trial court to issue a finding of abuse which names an individual as a perpetrator.

In the alternative, they argue that if the Act affords the Court of Common Pleas jurisdiction to make a finding of abuse, then this may not be established on a prima facie basis but must be established by clear and convincing evidence. The appellants argue there was not clear and convincing evidence that one or the other of the parents caused the serious injuries to the child and, therefore, an abuse finding was not appropriate under the law. The court’s finding that the parents were the abusers, therefore, could not establish the basis for a “founded” report of child abuse. They would have this Court find that the Law, and specifically section 6381(d), Prima facie evidence of abuse, which establishes that abuse may be proven by a standard of prima facie evidence, is not applicable to a finding of abuse under the Act, which requires clear and convincing evidence.

Finally, assuming the Act afforded jurisdiction to make such a finding, the parents allege the trial court abused its discretion by refusing to order independent medical examinations of the child at their request. They allege there were significant questions raised about the source of the injuries as evidenced by the sometimes contradictory statements made by the four CYS experts.

Dealing with these issues in sequence we turn first to the jurisdiction of the Juvenile Court to make a finding of child abuse. Undoubtedly the purpose of the Child Protective Services Law is to bring about quick and effective reporting of suspected child abuse so as to serve as a means for providing protective services competently and to prevent further abuse of the children while providing rehabilitative services for them and the parents. 23 Pa.C.S. § 6302(b). To the degree possible, the Law also is geared to the stabilization of the family where appropriate. The Law does not provide for legal determinations of abuse; it is mainly a vehicle for reporting abuse and bringing quickly into play those services (including court hearings) available through county protective service facilities for the care of the child.

The Act, however, is a procedural act which establishes jurisdiction in the courts to legally intervene and make findings of dependency which, in the context of this case, also includes child abuse. While the primary goal of the Act is to preserve and unite the family, it goes far beyond that opening statement of purpose. 42 Pa.C.S. § 6301(b)(1). The Act also requires the court to remove children from the family environment when necessary for their welfare or in the interest of public safety. In keeping with its purpose, the Act provides a complete procedural vehicle by which children are taken into custody, investigations are made, petitions are filed, hearings are held and remedial work is done to aide the family, to protect the child and, where necessary, to place the child out of the reach of abusive and neglecting parents. The Law and the Act must be read in pari materia.

The Law was created primarily for reporting suspected child abuse, providing the means for doing so and establishing the persons responsible for reporting the abuse under Sub-chapter (B), Reporting Suspected Child Abuse. 23 Pa.C.S. §§ 6311-6319. Subchapter (C), Powers and Duties of Department, provides for the powers and duties of the Department of Welfare. 23 Pa.C.S. §§ 6331-6349. These sections provide for the state-wide network which was required to be established by the Department of Welfare to assure the proper reporting, recording, maintaining of reports, protecting confidentiality of the reports, preparing studies from the data received and assuring that the county agencies perform their function under the Law. Subchapter (D), Organization and Responsibilities of Child Protective Service, provides for the organization and responsibilities of the child protective service agencies, which are the Children and Youth Services of the various counties. Sections 6361 through 6372 provide for the organization of the protective service programs in the local communities and the actual hands-on operation of the services required by the Law. Subchapter (E), Miscellaneous Provisions, consisting of sections 6381 through 6384, provides for Evidence in court proceedings, Guardian[s] ad litem, Education and training and Legislative oversight.

Out of the very detailed and explicit provisions of the Law, two sections are relevant to this inquiry. The first has to do with the relationship of the Act and the Juvenile Court to the Law and its implementation. The Law at section 6315 provides for Taking [a] child into protective custody.

(a) General rule. — A child may be taken into protective custody:
(1) As provided by 42 Pa.C.S. § 6324 (relating to taking into custody).

Subsection (a)(1) refers to the custody provision of the Juvenile Act. Subsections (b) and (d) state:

(b) Duration of custody. — No child may be held in protective custody for more than 24 hours unless the appropriate child protective service is immediately notified that the child has been taken into custody and the child protective service obtains an order from a court of competent jurisdiction permitting the child to be held in custody for a longer period. Each court shall insure that a judge is available 24 hours a day, 365 days a year to accept and decide the actions brought by a child protective service under this subsection within the 24-hour period.
(d) Detention hearing. — In no case shall protective custody under this chapter be maintained longer than 72 hours without a detention hearing. If, at the detention hearing, it is determined that protective custody shall be continued, the child protective service shall within 48 hours file a petition with the court under 42 Pa.C.S. Ch. 63.

Thus, by mandate of the Law, the one and only available resource for custody, change of custody or detention of a child who is suspected of being abused under the Law is the Juvenile Court pursuant to the Juvenile Act. This is so fundamentally necessary to the operation of the Law that the allegations of lack of jurisdiction by the Juvenile Court to make findings of child abuse appear to be totally spurious. Since the Act and the Law must be applied together in the resolution of child abuse complaints under the Law, reference must be made to the definition sections of both the Law and the Act to determine how that finding is interrelated. The Law, pursuant to section 6303, Definitions, states:

“Founded report.” A report made pursuant to this chapter if there has been any judicial adjudication based on a finding that a child who is a subject of the report has been abused.

The definition clearly anticipates that the court will make a finding of abuse and that that finding of abuse is pursuant to definitions that are contained in the Law. Since the Act, under pertinent sections which will be reviewed below, permits hearings for adjudication of dependency, which includes abuse, a more specific definition of abuse, which the court will apply in making such a finding, is established by the Law. The Law defines child abuse as follows:

“Child abuse.” Serious physical or mental injury which is not explained by the available medical history as being accidental, sexual abuse, sexual exploitation or serious physical neglect of a child under 18 years of age if the injury, abuse or neglect has been caused by the acts or omissions of the child’s parents or by a person responsible for the child’s welfare, or any individual residing in the same home as the child, or a paramour of the child’s parent.

Id.

The Legislature intended a detailed and specific definition of abuse to leave no doubt as to the capacity of the trial court, which in this case can only be the Juvenile Court, to make a finding and determination that a child has been abused. In its capacity as a trial judge, the Juvenile Court judge will look and must look to the above definition of child abuse in a case referred by the child protective service agency to the Court under petition for review of dependency when child abuse has been alleged.

To further aide the Juvenile Court in making these determinations, the Legislature deemed it wise and necessary to establish a different evidentiary standard for finding child abuse by a parent or person responsible for the child’s care, one in contrast to the overall standard for determining dependency under the Act. Subchapter (E), Miscellaneous Provisions, is the second relevant subchapter in the Law which is necessary to the resolution of the issues raised by appellants in this case. Pursuant to 23 P.S. § 6381, Evidence in court proceedings, subsection (a), General rule, provides: “In addition to the rules of evidence provided under 42 Pa.C.S. Ch. 63 (relating to juvenile matters), the rules of evidence in this section shall govern in child abuse proceedings in court.” Subsection (b) provides for reports of unavailable persons to overcome hearsay exceptions. Except for privileged communications between a lawyer and a client and between a minister and a penitent, subsection (c) provides a waiver of the privilege of confidential communications between husbands and wives and between professional persons, including, but not limited to, physicians, psychologists and counselors and their patients or clients so that the full extent of the abuse of children who cannot speak for themselves can be divulged in court without hearsay objection. Subsection (d) provides for an attenuated standard of making a legal determination as to the abuser in child abuse cases.

(d) Prima facie evidence of abuse. — Evidence that a child has suffered serious physical injury, sexual abuse or serious physical neglect of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the welfare of the child shall be prima facie evidence of child abuse by the parent or other person responsible for the welfare of the child.

This lessened standard of establishing abuse by the caretakers, coupled with the clear and convincing evidence necessary to find dependency, has been imposed by the Legislature as the standard which the Juvenile Court must apply in deciding abuse cases. Prima facie evidence is not the standard that establishes the child has been abused, which must be established by clear and convincing evidence; it is the standard by which the court determines whom the abuser would be in a given case. There is no conflict, constitutional or otherwise, with the clear and convincing evidence standard imposed by the Act to establish child abuse. The Legislature has determined that the likelihood clearly established abuse has occurred, other than at the hands of the custodian, is so small that prima facie evidence the custodian has caused the injury, either by acts or omissions, is all that is required. We find no defect in this reasoning. Such a standard provides maximum protection for the child victim or other children in the community who might be subject to similar abuse if the alleged abuser was not identified and permitted free access to the victim or other vulnerable children. It is not equivalent to a finding of guilt in a criminal proceeding which could result in deprivation of freedom. Thus the legislature has balanced the needs of society and children for protection against the abuser’s possible patterned behavior and his/her right to freedom unless found guilty beyond a reasonable doubt.

While the court, in its proceeding, must determine by clear and convincing evidence that the child was physically abused, its finding as to the abusers need only be established by prima facie evidence that the abuse normally would not have occurred except by reason of acts or omissions of the caretakers.

The two major sections of the Law referred to above are controlling in this case. It is unquestioned that the Juvenile Court, pursuant to the Law, applied the proper standards for taking into custody, for having a hearing and for acquiring jurisdiction, and, additionally, applied the standard of evidence and proof required to establish both child abuse and identity of the abusers.

The Juvenile Act provides:

§ 6324. Taking into custody
A child may be taken into custody:
(1) Pursuant to an order of the court under this chapter—

Such an Order is provided when the child welfare agency files a petition with the court requesting a hearing on the abuse of the child under the Law. Section 6335, Release or holding of hearing, determines whether the child can or cannot be released upon a hearing within ten days following the filing of a petition. Section 6302 of the Act, Definitions, defines “dependent child” in relevant part as follows:

“Dependent child.” A child who:
(1) is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals[.]

By the doctrine of incorporation, as mandated by the Legislature, the definition of child abuse (the Law, 23 Pa.C.S. § 6303) quoted above is incorporated into this definition of a dependent child. The Act provides:

§ 6341. Adjudication
(a) General rule. — After hearing the evidence on the petition the court shall make and file its findings as to whether the child is a dependent child____ If the court finds that the child is not a dependent child or that the allegations of delinquency have not been established it shall dismiss the petition and order the child discharged from any detention or other restriction theretofore ordered in the proceeding.
(c) Finding of dependency. — If the court finds from clear and convincing evidence that the child is dependent, the court shall proceed immediately or at a postponed hearing, which shall occur not later than 20 days after adjudication if the child has been removed from his home, to make a proper disposition of the case.

Thus, it is clear that under the Act, while incorporating the later additional legislation relating to child abuse provided under the Law, the Juvenile Court has the jurisdiction and the right to adjudicate child abuse and when such an adjudication is made pursuant to the Law, a “founded report” may be lodged with the Department of Welfare determining that the parents are the persons responsible for the abuse.

In summation, the Juvenile Court is the proper and only judicial body which has the capacity to make a determination that a child is abused and to affect a disposition of that child pursuant to the Act in conjunction with the Law. In doing so, that Court also has been given the right, pursuant to the Law, to establish on prima facie evidence whom the likely abusers would be under the circumstances. Thus, the standard of proof applied in determining abuse of the child for purposes of disposing of that finding in relation to placement of the child or supervision of the child is by clear and convincing evidence. By specific act of legislation, a determination as to who the abuser most likely would be is only required to be established by prima facie evidence. It is unquestioned in this case that the child was abused by clear and convincing evidence. Moreover, it is also unquestioned in this case that the prima facie evidence established the primary custodians during the time of the abuse were the parents, the appellants herein. The trial court did not err in making the finding of child abuse and naming the parents as the abusers.

The final issue in this case is whether the parents should have been afforded independent medical experts to evaluate the child. The court acted properly in denying this request because the several experts testified without qualification that this child had been seriously abused. There were some slight differences as to whether the child was shaken or squeezed and the exact manner by which the very serious injuries occurred. There was no question by any of the experts that this child had suffered serious trauma at the hands of the caretakers. Thus, an independent evaluation would have served no purpose but to add a fourth or fifth opinion as to how, precisely, the injuries were caused. Additional medical evaluation would not have changed the result that the injuries were caused by trauma from an external source, that source most likely being the parents.

Order affirmed.

      . Although appellants have filed separate appeals, their claims are virtually identical and will be discussed simultaneously.