author: CERCONE, Judge:

text:
    487 A.2d 887
    Andrew N. FARNESE, III and Anna Marie Farnese v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY and City of Philadelphia. Appeal of SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY.
    Superior Court of Pennsylvania.
    Argued June 11, 1984.
    Filed Jan. 16, 1985.
    Petition for Allowance of Appeal Denied May 14, 1985.

      William H. Roberts, Philadelphia, for appellant.
    Fredric L. Goldfein, Philadelphia, for appellees.

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

The plaintiffs, Mr. and Mrs. Farnese, brought suit against the Southeastern Pennsylvania Transportation Authority (hereinafter “SEPTA”) for injuries allegedly suffered while he was a passenger on a SEPTA bus. SEPTA joined the City of Philadelphia (hereinafter “City”) as an additional defendant, averring that the City failed to keep its streets in a state of repair, which precipitated Mr. Farnese’s injuries. At the close of evidence the court directed a verdict in favor of the City. The jury returned a verdict in favor of the plaintiffs and against SEPTA. SEPTA filed post-trial motions which were denied by the court sitting en banc. Having settled with plaintiffs, on appeal SEPTA only pursues its claim that the trial court erred in entering a directed verdict in City’s favor.

The evidence which was submitted to the jury may be briefly summarized in the following manner. The City was reconstructing Chestnut Street for use as its transit-way. The street had been stripped of its asphalt surface, exposing the rough concrete base. A cold patch was applied to raised intersections and man-hole covers resulting in a tapered surface for vehicles to pass over. On the date of the accident, construction was going on and various pieces of construction equipment and supplies were scattered along the transit way.

SEPTA had requested permission from the City to use the construction area for bus traffic and the City granted the request. The SEPTA bus carrying Mr. Farnese was traveling 35 to 40 miles per hour along Chestnut Street, through the construction zone, when it apparently encountered some object or obstacle causing a sudden up and down jolt to the bus. This jolt threw Mr. Farnese up and down on his seat causing him the injuries for which he sued. The exact point of the accident along Chestnut Street was not specified by any party. Likewise, SEPTA did not allege the exact nature of the cause of the jolt to the bus, other than the general conditions of the street. It offered no evidence as to the exact cause of the jolt and the cause was never determined.

The trial court directed a verdict for the City reasoning that since SEPTA had offered no evidence that the transit-way was unsafe for ordinary traffic and SEPTA had failed to allege or show what the bus had struck, it therefore failed to show the City was responsible for such obstacle.

The law is clear that at trial defendant (SEPTA) had the burden of proving by a fair preponderance of the evidence that the additional defendant, the City was negligent and that its negligence was the proximate cause of the accident. Flagiello v. Crilly, 409 Pa. 389, 390, 187 A.2d 289 (1983) (citations omitted). Further, the law is clear that “when a party who has the burden of proof relies upon circumstantial evidence and inferences reasonably deductible therefrom, such evidence, in order to prevail, must be adequate to establish the conclusion sought and must so preponderate in favor of that conclusion as to outweigh in the mind of the fact-finder any other evidence and reasonable inferences therefrom which are inconsistent therewith.” Id., 409 Pa. at 391, 187 A.2d at 290. Proximate causation is a question of law based on policy and immediate or actual causation is a question of fact for the jury. See Flickinger Estate v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973).

The real issue in this case is how much and what kind of circumstantial evidence is sufficient to raise not only the inference of negligence on the part of the City but also to raise the inference of a causal connection between the City’s negligence and the injury which occurred. To prove possibility only or to leave the issue to surmise or conjecture is never sufficient to sustain a verdict. Moyer v. Ford Motor Co., 205 Pa.Super.Ct. 384, 209 A.2d 43 (1965). Where there is no evidence of or the evidence is insufficient to justify an inference of negligence and causation, the court will direct a verdict in favor or the party against whom liability is sought. Lescznski v. Pittsburgh Railways Co., 409 Pa. 102, 185 A.2d 538 (1962).

We agree with the court below that, as a matter of law, SEPTA failed to offer evidence which was sufficient to raise an inference that the negligence of the City was the proximate cause of the injuries incurred by plaintiff. While we acknowledge that questions of negligence and causation are to be resolved by the jury, and not the judge, the question of the sufficiency of the evidence before presenting a question to the jury is clearly within the discretion of the trial judge. In fact, the trial court has a duty to prevent questions from going to the jury which would require it to reach a verdict based on conjecture, surmise, guess or speculation. See, i.e., Lescznski, supra, 409 Pa. at 109, 185 A.2d at 541.

In this case the trial court clearly found that SEPTA had presented insufficient evidence to show that the City’s actions or negligence was the proximate cause of the accident. The court en banc stated:

SEPTA’s contention fails for the reasons that there is nothing in the record to show how or in what way the condition of the transit-way was related to the accident. There is nothing in the record to show just what roadway condition was coupled with improper speed to cause the jolt or impact which caused [plaintiff] to be hurled and thrown out of his seat.

SEPTA offered no specific evidence as to the cause of the jolt. It did not offer its driver as a witness in an attempt to pin point the site of the accident or the specific cause. The general evidence in the record is clearly insufficient to shift the burden of proof to the defendant, City of Philadelphia, for two reasons. With such lack of specificity, there is no basis upon which the City could rebut SEPTA’s claim. A basic rule of due process is that a plaintiff must set forth a prima facie case with sufficient specificity so that the defendant is put on notice as to that against which it must defend. Secondly, as a matter of policy, this court must be careful not to allow any party injured in or around a road construction site to sue the City (or municipality) without requiring that party to set forth a prima facie ease as to how the City’s negligent maintenance of that site causally produced the injury alleged. Construction sites, by their very nature, are less safe than smooth streets; construction sites, however inconvenient, are important and unavoidable necessities in a metropolitan area which must constantly up-grade its streets to accommodate modern traffic needs.

The plaintiff has a two fold burden; that is, it must present evidence that the City was negligent in its supervision of the Chestnut Street construction and that its negligence was causally connected with the accident. The plaintiff has clearly failed to meet the second element of its burden. The plaintiff offered absolutely no evidence as to the second element. The plaintiff asks this court to resort to circumstantial supposition. Appellant asks to be allowed to present the jury with a question of the City’s liability based merely on the fact that the SEPTA bus was travel-ling over an admittedly rough road under construction. Contrary to appellant’s contention, the evidence is not sufficient to allow a jury to reasonably infer that the City’s actions causally created the accident. A party is not entitled to an inference of fact which amounts merely to a guess or conjecture, Flaherty v. Pennsylvania Railroad Co., 426 Pa. 83, 85, 231 A.2d 179, 180 (1967), nor may a jury be permitted to reach its verdict merely on the basis of speculation or conjecture; there must be evidence upon which logically its conclusion may be based. Flagiello v. Crilly, 409 Pa. 389, 187 A.2d 289 (1963) (citations omitted).

This case is very similar to that of Cuthbert v. Philadelphia, 417 Pa. 610, 209 A.2d 261 (1965) in which the Supreme Court reversed the court below and entered a judgment n.o.v. in favor of both defendants. In that case, plaintiff fell and was injured while crossing a public street. At the site where she fell, there were properly maintained railroad tracks and a depression in the street 3 to 4 inches deep and 6-V2 feet in length — which, if it had been the cause of plaintiff’s fall, would admittedly be sufficient to prove that the City’s negligence was the cause of her injury. However, the plaintiff failed to submit evidence which, as a matter of law, was sufficient to prove that the depression and not the tracks was the cause of her fall. The court noted that the case should never have gone to the jury, citing Idlette v. Tracey, 407 Pa. 278, 180 A.2d 37 (1962), and ordered a judgment N.O.V. in favor of both defendants.

Likewise in the instant case, SEPTA has only offered evidence that Chestnut Street was in a state of disrepair during its reconstruction. The only testimony it offered as to the cause of the accident is that given by the plaintiff, Farnese, and two other passengers. None of these witnesses actually looked at the road to see what the bus had struck. They each merely concluded that the bus hit “something in the road.” In all interests of fairness, such testimony is insufficient to form the basis of an inference that the City was negligent in its supervision of the road construction. Such testimony certainly does not meet the test, previously stated, that when relying on circumstantial evidence, that evidence must so preponderate in favor of that conclusion as to outweigh any other evidence and reasonable inferences therefrom which are inconsistent with it. The court below was correct in finding that SEPTA’s circumstantial evidence was insufficient to raise an inference as to the City’s liability and is, therefore, affirmed.

The judgment of the court below is affirmed.


source: Caselaw Access Project

author: McEWEN, Judge:

license: Public Domain

text:
    487 A.2d 891
    COMMONWEALTH of Pennsylvania v. Anthony Edward BRADY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 24, 1984.
    Filed Jan. 18, 1985.

      Christopher J. Foust, Milton, for appellant.

      Anthony J. Rosini, Assistant District Attorney, Sunbury, for Commonwealth, appellee.
    Before McEWEN, BECK and CERCONE, JJ.
   McEWEN, Judge:

This appeal is from the judgment of sentence imposed upon appellant after he was found guilty by a jury of second degree murder, burglary and criminal mischief, and sentenced to: (1) life imprisonment on the charge of second degree murder; (2) a consecutive term of imprisonment of from five years to ten years on the charge of burglary; and (3) a concurrent term of imprisonment of from six months to one year on the charge of criminal mischief. Although appellant submits forty-two issues for our review, we discuss but one claim as it proves to be dispositive: whether the Commonwealth may introduce, as substantive evidence, a prior inconsistent statement uttered by a non-party witness. We are constrained to reverse and remand for a new trial.

After the car in which they were driving was stranded along a desolate road, appellant and a female companion, Tina Traxler, decided to travel the remainder of the distance to their homes on foot. Enroute, they encountered the Wilson Manufacturing Plant and scaled the fence which surrounded it. Once inside the building, the pair separated: Traxler stood in a hallway while appellant entered the company’s lunchroom to pry open a dollar change machine. When a night watchman confronted Traxler and grabbed her by the arm, appellant returned from the lunchroom, began to grapple with the guard and, eventually, stabbed him to death.

The next day, Traxler appeared on her own initiative at the police station and volunteered a statement to the police which implicated appellant in the crimes. However, prior to trial, she substantially recanted this initial account of the incident. Appellant was, nonetheless, found guilty by a jury of second degree murder, burglary and criminal mischief. After his motions for a new trial and in arrest of judgment were denied, he undertook this appeal.

Appellant contends that the trial court erred when it permitted the Commonwealth to introduce as substantive evidence Traxler’s prior inconsistent statement implicating appellant in the homicide. We agree. “It has long been the law in Pennsylvania that prior inconsistent statements of a non-party witness are not admissible as substantive evidence of the truth of the matters asserted therein.” Commonwealth v. McGuire, 302 Pa.Super. 226, 234, 448 A.2d 609, 613 (1982). See also Commonwealth v. Waller, 498 Pa. 33, 39 n. 2, 444 A.2d 653, 656 n. 2 (1982); Commonwealth v. Brown, 302 Pa.Super. 391, 448 A.2d 1097 (1983). During the instant trial, after the Commonwealth had impeached Traxler with her prior inconsistent statement, the court permitted the prosecutor to play a tape to the jury which consisted of the entire initial police interview in which Traxler implicated appellant in the crime. It cannot be doubted that the jury erroneously utilized the prior inconsistent statement as substantive evidence of appellant’s guilt since (1) the statement was educed from the only person who specifically identified appellant as the killer, see Commonwealth v. Floyd, 327 Pa.Super. 569, 476 A.2d 414 (1984), and (2) the trial court did not instruct the jury that this evidence could only be utilized to impeach her testimony. See Commonwealth v. French, 501 Pa. 134, 460 A.2d 725 (1983); Commonwealth v. Floyd, supra.

Our inquiry, therefore, must focus on whether the introduction of this statement as substantive evidence was “harmless error”. Error will be held harmless in a criminal trial only if the reviewing court determines that the error did not affect the jury’s verdict beyond a reasonable doubt. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978); Commonwealth v. Laws, 474 Pa. 318, 378 A.2d 812 (1977). Such a finding may be made if (1) the prejudice from the erroneously admitted evidence is de minimis, (2) the erroneously admitted evidence is merely cumulative of other properly admitted evidence, (3) it is substantially similar in kind and incriminating details to other indisputable, independently obtained, and properly admitted evidence, or (4) if the Commonwealth’s evidence of guilt is overwhelming and, by comparison, the prejudice of the error is insignificant. Commonwealth v. Story, supra 476 Pa. at 409-417, 383 A.2d at 164-168. See also Commonwealth v. Taraschi, 327 Pa.Super. 179, 475 A.2d 744 (1984).

The distinguished Judge Samuel C. Ranck was without the benefit of these recent holdings which compel us to conclude that utilization of the statement at issue resulted in more than mere de minimis prejudice and, indeed, as Judge Ranck notes in his able opinion, the statement was the “chief evidence” of appellant’s guilt. Moreover, it was not cumulative or substantially similar in kind and incriminating details to other, independently obtained, and properly admitted evidence. Thus we must determine whether the Commonwealth’s evidence of guilt is “overwhelming” and whether, by comparison, the prejudice of the error is insignificant. We are guided in this regard by the principles enunciated in Commonwealth v. Story, supra, 476 Pa. at 413, 383 A.2d at 166:

Under this approach, a reviewing court first determines whether the untainted evidence, considered independently of the tainted evidence, overwhelmingly establishes the defendant’s guilt. If ‘honest, fair minded jurors might very well have brought in not guilty verdicts,’ an error cannot be harmless on the basis of overwhelming evidence. Commonwealth v. Davis, 452 Pa. [171] at 181, 305 A.2d [715] at 721, [(1973)], quoting Chapman v. California, 386 U.S. 18, 26, 87 S.Ct. 824, 829, 17 L.Ed.2d 705 (1967). Once the court determines that the evidence of guilt is overwhelming, it then decides if the error was so insignificant by comparison that it could not have contributed to the verdict.

Our study of the record results in the following “uncon-tradicted” evidence of guilt:

1. Blood types on the shirt worn by appellant match those found on the victim’s clothes.
2. Blood of appellant’s type was found on the decedent’s clothes.
3. Appellant was seen carrying a knife on the night of the murder.

We are of the view (1) that the uncontradicted evidence of appellant’s guilt is not “overwhelming”; (2) that the prejudice engendered by the statement elicited from Traxler is not insignificant; and (3) that “honest, fair minded jurors might very well have brought in not guilty verdicts [based solely on the untainted evidence]”. Thus, we are not convinced beyond a reasonable doubt that “the error did not affect the jury’s verdict____” See Commonwealth v. Story, supra.

Since this case must be remanded for a new trial, we will also address appellant’s argument that the trial court erred when it permitted the Commonwealth to impeach its own witness, Traxler, using the prior inconsistent statement which inculpated appellant in the murder. We agree with this assertion in light of the principles enunciated in Commonwealth v. Thomas, 459 Pa. 371, 329 A.2d 277 (1974):

The fundamental rule in this jurisdiction is that it is within the sound discretion of the trial court to decide whether counsel may exercise the right of cross-examination of his own witness. In recent years this Court has announced several principles for the trial courts to follow in the exercise of this discretion. First, before counsel may cross-examine his own witness on a plea of surprise the testimony given by the witness must be unexpected. Commonwealth v. Turner, 389 Pa. 239, 133 A.2d 187 (1957):
“ ‘Generally, to entitle the party calling the witness to relief from the situation caused by the witness’s adverse testimony, it is essential that such party be really surprised by such testimony.’ ... Surprise, in its legal connotation, does not embrace disappointment or a feeling of frustration on the part of the one seeking to have a witness testify otherwise than he has indicated he will do.” Id., 389 Pa. at 253-254, 133 A.2d at 193.
Secondly, the testimony of the witness must be contradictory to statements the witness had made earlier. Thirdly, the testimony must be hurtful or injurious to the party calling the witness and beneficial to the opposing side.
“ ‘Since the purpose of the cross-examination and impeachment is then, to induce the jury to disbelieve the testimony of the witness — there must be something in the witness’ testimony, which if not disbelieved by the jury will be hurtful or injurious to the party calling him. Were it otherwise there could be no occasion to discredit or impeach the witness or to stamp him as unworthy of belief.’ ” Commonwealth v. Turner, 389 Pa. at 254, 133 A.2d at 194.
Fourthly, the scope of the cross-examination may not be excessive.

Id., 459 Pa. at 379-381, 329 A.2d at 280-281 (citations omitted). See also Commonwealth v. Thirkield, 311 Pa.Super. 413, 457 A.2d 954 (1983); Commonwealth v. Waller, supra. The record reveals that the Commonwealth was fully apprised before trial of Traxler’s recantation of her initial statement and, therefore, her more recent version of the incident was not “unexpected”. Thus, it was improper for the Commonwealth to plead surprise.

Judgment of sentence reversed. Case remanded for new trial. Jurisdiction relinquished.

      . After appellant filed a motion to modify his sentence, the sentencing court vacated the judgment of sentence imposed upon him for burglary for the reason that it merged for sentencing purposes with the sentence imposed for second degree murder.

      . "Although a contrary statement appears in Commonwealth v. Loar, 264 Pa.Super. 398, 399 A.2d 1110 (1979) ... this statement has been disapproved by the Supreme Court. ‘[S]uch has never been and is not now the law in this Commonwealth.’ Commonwealth v. Waller, supra 498 Pa. at 39 n. 2, 444 A.2d at 656 n. 2 (1982).’’ Commonwealth v. McGuire, supra 302 Pa.Super. at 234, 448 A.2d at 613 (emphasis deleted).

      . We note that “the burden of establishing that the error was harmless beyond a reasonable doubt rests with the Commonwealth.” Commonwealth v. Story, supra 476 Pa. at 406 n. 11, 383 A.2d at 162 n. 11 (citations omitted).

      . Prior to trial, appellant filed a “Supplemental Application in Support of Omnibus Pretrial Motion” which contained an affidavit, signed by Traxler, wherein she retracted her initial statement to the police.


author: DEL SOLE, Judge: WIEAND, Judge,

text:
    487 A.2d 894
    BRADY CONTRACTING CO., INC., Appellant, v. WEST MANCHESTER TOWNSHIP SEWER AUTHORITY and Columbia Gas of Pennsylvania, Inc. v. COLUMBIA GAS OF PENNSYLVANIA, INC. and C.S. Davidson, Inc.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1984.
    Filed Jan. 18, 1985.

      Jeffrey W. Davis, Harrisburg, for appellant.
    Lillian M. Morgan, York, for West Manchester, appellee.
    Robert J. Brown, York, for Columbia, appellee.
    Nevin Stetler, York, for C.S., appellee.
    Before WICKERSHAM, WIEAND and DEL SOLE, JJ.
   DEL SOLE, Judge:

This is an appeal by Brady Contracting Company, Inc. (Brady) from the trial court’s entry of summary judgment against it and in favor of West Manchester Township Sewer Authority (WMTSA). Because we find that the instant appeal falls within the exclusive appellate jurisdiction of the Commonwealth Court we hereby transfer this appeal to that court for disposition of the issues presented.

The relevant facts are as follows: In April, 1981, a contract was awarded to Brady by WMTSA for the construction of sanitary sewers in Manchester Township. Subsequently, it was revealed that existing underground gas lines of Columbia Gas of Pennsylvania, Inc. (Columbia Gas) were in conflict with the proposed location of the sewer lines. This fact became known after Brady allegedly had been assured by official of Columbia Gas and the civil engineer for WMTSA that the gas lines were located so as not to interfere with the design and location of the sewer lines. Brady then sought additional compensation from WMTSA for delay and increased construction costs resulting from the initial failure to properly locate the existing utility lines. WMTSA responded that Brady was solely responsible for locating the existing utility lines and that accordingly WMTSA was not responsible for any delay or additional costs resulting from a failure to properly locate the lines.

In April, 1982, Brady filed an action in assumpsit and trespass against WMTSA and Columbia Gas seeking damages. Brady’s trespass claim against WMTSA is based on a breach of WMTSA’s alleged duty to properly locate the existing underground utility lines which constituted a dangerous condition for Brady. In August, 1983, WMTSA filed a motion for summary judgment on all counts, specifically arguing that it was immune from suit on the trespass count pursuant to the Political Subdivision Tort Claims Act, 42 Pa.C.S. § 8541, et seq. The trial court agreed and granted summary judgment on the trespass count as well as the other counts for separate reasons. A timely appeal was then filed with this Court.

Although neither party has raised the issue, it is well settled that this Court may sua sponte raise a question as to our jurisdiction in a particular case. See Karpe v. Borough of Stroudsburg, 290 Pa.Super. 559, 434 A.2d 1292 (1981). This Court, by statute, has appellate jurisdiction from final orders of the courts of common pleas except when jurisdiction is vested in the Supreme Court or the Commonwealth Court. 42 Pa.C.S. § 742. In contrast, the appellate jurisdiction of the commonwealth court from final orders of the common pleas courts is limited by statute to certain defined classes of subject matter. 42 Pa.C.S. § 762. One such defined area is set forth in subsection (a)(7):

§ 762. Appeals from courts of common pleas
(a) General rule. Except as provided in subsection (b), the Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in the following cases:
(7) Immunity waiver matters. Matters conducted pursuant to Subchapter C of Chapter 85 (relating to actions against local parties).

42 Pa.C.S. 762(a)(7). Subchapter C of Chapter 85 of the Judicial Code is the Political Subdivision Tort Claims Act, 42 Pa.C.S. 8541, et seq., of which the defense was raised by WMTSA in its motion for summary judgment.

A plain reading of subsection 762(a)(7) reveals that the legislature has vested exclusive appellate jurisdiction in the Commonwealth Court with regard to any tort actions brought against a local agency, which is defined as any government unit other than the Commonwealth government. 42 Pa.C.S. § 8501. The obvious legislative intent in granting such exclusive appellate jurisdiction to the Commonwealth Court is to ensure a uniform interpretation and application of the provisions of the Political Subdivision Tort Claims Act. This jurisdiction also extends to all parties and appears in a case as long as at least one party is a local agency and the case is governed at least in part by Political Subdivision Tort Claims Act.

In the instant case, WMTSA is a local agency under the Political Subdivision Tort Claims Act and it is clear that the trial court applied the provisions of that act thus invoking the appellate jurisdiction of the Commonwealth Court pursuant to 42 Pa.C.S. § 762(a)(7). Since this Court by statute has no appellate jurisdiction when such is exclusively vested in the Commonwealth Court we accordingly transfer the instant appeal to the Commonwealth Court for disposition of the issues presented for review.

Appeal transferred to Commonwealth Court.

WIEAND, J., files dissenting statement.

WIEAND, Judge,

dissenting:

I respectfully dissent. Inasmuch as neither party has objected to the jurisdiction of the Superior Court, its jurisdiction has been perfected. Pa.R.A.P. 741(a). Although we may nevertheless transfer an appeal to the Commonwealth Court (Pa.R.A.P. 752(a)), I believe the parties would be better served in this case if we were to retain jurisdiction and decide the appeal on its merits. This is particularly true where, as here, the appeal also includes a request for appellate review of summary dismissal of a count in appellant’s complaint which is based on breach of contract and which is clearly within the appellate jurisdiction of this Court.

      . Subsection 762(a)(7) of the Judicial Code was amended on December 20, 1982 pursuant to P.L. 1409, No. 326, art. II, § 201, effective in 60 days. The prior language of subsection 762(a)(7) is as follows:

        § 762. Appeals from court of common pleas

      (a) General rule. Except as provided in subsection (b), the Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in the following cases:
      (7). Immunity waiver matters. Matters in which immunity has been waived pursuant to Subchapter C of Chapter 85 (relating to actions against local parties).
      A reading of the above cited prior language of subsection 762(a)(7) reveals that it was much narrower than the present language. Under the prior language the local agency immunity under the Political Subdivision Tort Claims Act, 42 Pa.C.S. 8541, et seq., would have to be waived before the appellate jurisdiction of the Commonwealth court would be invoked. However, under the present language all that is necessary is that a local agency be sued in tort which then invokes Commonwealth Court’s appellate jurisdiction since the case will be governed by the provisions of the Tort Claims Act. Thus, the Commonwealth Court’s appellate jurisdiction in tort actions in which at least one party is a local agency is now exclusive.
      In addition, while the above cited amendment to the Commonwealth Court’s appellate jurisdiction did not become effective until after the instant case was commenced it is still applicable to the instant appeal since the amendment was effective prior to the entry of summary judgment and because the amendment had the procedural effect only of transferring appellate jurisdiction to our sister court and did not enlarge or abolish any substantive rights of the parties to the instant appeal.


author: HOFFMAN, Judge: WICKERSHAM, Judge,

text:
    487 A.2d 897
    COMMONWEALTH of Pennsylvania, Appellant, v. Lewis G. CUMMINGS.
    Superior Court of Pennsylvania.
    Argued April 3, 1984.
    Filed Jan. 18, 1985.

      Francis X. O’Brien, Jr., Chief Counsel, Harrisburg, for Commonwealth, appellant.
    Philip S. Cosentino, Chambersburg, for appellee.
    Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

The sole issue on appeal is whether in a prosecution for driving in excess of the maximum speed limit, the Commonwealth may enter into evidence a photocopy of the certificate of timing device accuracy required by 75 Pa.C.S.A. § 3368(d). We hold that the lower court correctly rejected the evidentiary offer of the photocopy in this case and, accordingly, affirm the order below dismissing the prosecution.

On November 10, 1981, appellee was driving his vehicle on Interstate 81 in Franklin County. Pennsylvania State Trooper Thomas A. Algatt, flying in a state police aircraft and using a stopwatch, timed appellee’s rate of travel over a measured distance of three-tenths (.3) of a mile at 66.2 miles per hour and relayed this information to Trooper David E. Burkholder who was in a chase vehicle on the highway. Trooper Burkholder then issued a citation to appellee, who refused to sign, acknowledging receipt of the citation. Following a January 28, 1982 hearing, appellee was found guilty by the District Justice on February 3, 1982. On appeal, the lower court held a summary hearing on December 16, 1982. At this hearing, the Assistant District Attorney advised the court that a legal issue had been raised regarding the admissibility of the certificate of stopwatch accuracy issued by the appointed testing station on October 19, 1981 pursuant to 75 Pa.C.S.A. § 3368(d). The Commonwealth made an offer of proof that it was prepared to introduce a photographic copy of the certificate. The lower court, upon appellee’s motion, rejected the offer and dismissed the case. This Commonwealth appeal followed.

Section 3368(d) of the Vehicle Code provides that:

... — All mechanical, electrical or electronic devices shall be of a type approved by the department, which shall appoint stations for calibrating and testing the devices and may prescribe regulations as to the manner in which calibrations and tests shall be made. The devices shall have been tested for accuracy within a period of 60 days prior to the alleged violation. A certificate from the station showing that the calibration and test were made within the required period, and that the device was accurate, shall be competent and prima facie evidence of those facts in every proceeding in which a violation of this title is charged.

75 Pa.C.S.A. § 3368(d) (emphasis added). This Court set forth the requirements of § 3368(d) in Commonwealth v. Gernsheimer, 276 Pa.Superior Ct. 418, 419 A.2d 528 (1980), holding that

in prosecuting speeding cases where a radar or other electronic device is used to calibrate a defendant’s speed that in order to introduce the results of such into evidence the Commonwealth must offer a Certificate, certified by the Secretary of Transportation or his designee certifying the agency which performs the tests on the device as an official testing station, and must introduce a Certificate of Electronic Device (radar) Accuracy into evidence. The Certificate of Electronic Device (radar) Accuracy must be signed by the person who performed the tests and the engineer in charge of the testing station, must show that the device was accurate when tested by stating the various speeds at which it was tested and the results thereof, and must show, on its face, that the particular device was tested within sixty (60) days of the date it was used to calibrate the particular defendant’s speed.

Id., 276 Pa.Superior Ct. at 423-24, 419 A.2d at 530. Although the question of the admissibility of a photocopy, instead of the original, of the certificate of accuracy did not arise in Gernsheimer, we note that the entry of the original certificate appears to be common practice. See Commonwealth v. Gussey, 319 Pa.Superior Ct. 398, 466 A.2d 219 (1983); Commonwealth v. Gernsheimer, supra.

The Commonwealth argues, however, that it may enter a photocopy of the required certificate of accuracy under the statutory hearsay exception for business and public records, 42 Pa.C.S.A. § 6109(b). We disagree. Section 6109(b) provides that a photocopy of “any memo, writing, entry, print, representation, or combination thereof, of any act, transaction, occurrence or event” which in the regular course of business has been “recorded, copied or reproduced” may be as admissible in evidence as the original itself. Before the photocopy can be admitted, however, 42 Pa.C.S.A. § 6108(b) requires that the document be authenticated:

... — A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.

(Emphasis added).

In the instant case, we find first that the certificate of accuracy does not qualify as a business or public record under § 6109(b). In Commonwealth v. Gernsheimer, supra, the defendant asserted that the certificate of accuracy should have been inadmissible because it was an official record and did not contain the state seal as required by 42 Pa.C.S.A. § 5328. In rejecting this argument, we stated: “Since 75 Pa.C.S.A. § 3368(d) applies particularly to proofs in speeding cases we hold that it takes preference over the general requirements of the Official Documents Law (42 Pa.C.S.A. 5328) in speeding situations.” 276 Pa.Superior Ct. at 423, 419 A.2d at 530. That rationale applies equally to this case. As the lower court correctly reasoned:

Special legislation was passed to admit the certificate of the testing station. Ordinarily to show that the testing device was accurate, the person who made the test would have to be called to say what he did and what he found. That would be cumbersome. In light of that problem, the leislature permitted the issuance of a certificate. It seems to be no burden or hardship on the Commonwealth to produce the original certificate with the original signature on it. As to admissibility of business records, generally they are not made in contemplation of a law suit. However, these certificates are made with the full knowledge of the Commonwealth that the accuracy of the testing devise [sic] will be called in a trial.

(Lower Court Opinion at 2). Additionally, we note that the Commonwealth’s witness, Trooper Algatt, was unable to properly identify the document sought to be admitted. Al-gatt had never seen the original certificate and therefore could not testify as to whether the photocopy was a true copy of it. (N.T. December 16, 1982 at 3). He could only testify that it was customary for the original certificate to be sent by the approved testing station — in this case, Leit-zel’s Jewelry — to the police headquarters where it would be photostated and copies sent to different stations. Therefore, contrary to the Commonwealth’s contention, the photocopy was not properly authenticated.

Accordingly, the Commonwealth has given us no reason for overturning the lower court’s rejection of the admission of the photocopy in lieu of the original certificate of accuracy.

Affirmed.

WICKERSHAM, J., files a dissenting opinion.

WICKERSHAM, Judge,

dissenting:

I would hold that the lower court incorrectly rejected the evidentiary offer of the photocopy in this case and, accordingly, would reverse the order below dismissing the prosecution.

The court below dismissed the speeding prosecution “because the Commonwealth was not prepared to introduce a certificate of timing device accuracy as required by law.” Lower ct. op. at 3. This conclusion was based upon two separate grounds: (1) the photocopy of the certificate of accuracy was not admissible under 42 Pa.C.S. § 6109(b), and (2) Trooper Algatt could not provide sufficient identification of the document to satisfy 42 Pa.C.S. § 6108(b). I would hold that, on the facts stated, the photocopy was sufficiently identified and was admissible pursuant to 42 Pa.C.S. § 6109.

The sole issue on this appeal is whether the prosecution must fall because a photocopy of a document, rather than the original, was offered to prove an element of the case. There is no question raised about the substance of the document, the certificate of timing accuracy. The testing of the stopwatch was done by Leitzel’s Jewelry, which was designated as an official testing station by the Pennsylvania Department of Transportation, pursuant to 75 Pa.C.S. § 3368(d).

The photocopy of the certificate established that on October 19, 1981, Leitzel’s had tested the stopwatch used to clock appellee. The citation issued to appellee on November 10, 1981 was well within the sixty day testing period prescribed by section 3368(d). No issue has been raised and no suggestion made that the proffered photocopy somehow differed from the original document.

Section 6109 of Title 42 provides, in pertinent part, as follows:

If ... any department or agency of government, in the regular course of business or activity, has kept or recorded any memorandum [or] writing ... of any act, transaction, occurrence or event, and in the regular course of business has caused any or all of the same to be recorded, copied or reproduced____[s]uch reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial ... proceeding, whether the original is in existence or not.

42 Pa.C.S. § 6109(b).

The offer of proof made by the Commonwealth below would have shown the procedure whereby the photocopy of the certificate was received by Trooper Algatt and ultimately produced in court. When an authorized testing station tests and certifies a stopwatch, the certificate of accuracy is sent to the Pennsylvania State Police Bureau of Patrol in Harrisburg. Because any given stopwatch in any aircraft is used to clock speeders in conjunction with many different state police stations or barracks, the Bureau of Patrol sends a photocopy of the certificate of accuracy to each station that needs it. It was in this manner that Trooper Algatt received the photocopy of the document certifying that Leitzel’s had tested the stopwatch on October 19, 1981. The proffered testimony would have clearly satisfied all of the essential requirements for admissibility of the photocopy pursuant to 42 Pa.C.S. § 6109(b).

The only requirement on which an issue exists is that of the identification of the copy. Section 6109(b) allows reproductions to be admitted only “when satisfactorily identified.” I would hold that “satisfactory identification” need not be actual testimony that the copy is a true and correct copy. The procedures in the present case provide an appropriate link between the original document and the photocopy. The procedures showing the legitimacy of the copy were explained to the court below. Absent some suggestion that the document or its contents differed from the original, the document should have been accepted by the court as proof pursuant to 75 Pa.C.S. § 3368(d).

The lower court also reasoned that the document had to be “identified by a qualified witness” pursuant to 42 Pa.C.S. § 6108(b) to be admissible as a business record. Section 6108 creates an exception to the hearsay rule for business records. See Commonwealth v. Visconto, 301 Pa.Super. 543, 448 A.2d 41 (1982). Such a hearsay exception would be superfluous for the certificate of stopwatch accuracy, however, because the Vehicle Code provides a specific hearsay exception for the certificate in section 3368(d). See also Commonwealth v. Gernsheimer, 276 Pa.Super. 418, 419 A.2d 528 (1980) (in speeding prosecution, section 3368(d) takes preference over general requirements of Official Documents Law). Thus, the Commonwealth need not have met the requirements of section 6108(b), which it never invoked.

For these reasons, the order of the trial court dismissing the citation was error. I would accordingly reverse.

      . The issue in Gernsheimer was whether § 3368(d) required that the official state seal appear on the certificate of accuracy. We held that such a seal was not needed for admissibility.

      . In Commonwealth v. Perdok, 411 Pa. 301, 192 A.2d 221 (1963), the Supreme Court approved the admission of the certificate for the limited purpose of proving that the radar apparatus was accurate. However, the Court reversed the speeding conviction on the ground that the document was not admissible to prove the Secretary of Revenue’s approval of the machine unless it fell under the hearsay exceptions for business records or official statements and that, because no foundation had been laid and it was not part of the testing station’s duty to approve the type of radar apparatus used, such exceptions did not apply.


author: HOFFMAN, Judge:

text:
    487 A.2d 901
    In re ESTATE OF George W. GEYER, late of the Borough of Chambersburg, Franklin County, Pennsylvania, Deceased. Appeal of George W. GEYER.
    Superior Court of Pennsylvania.
    Argued Aug. 15, 1984.
    Filed Jan. 18, 1985.
    Petition for Allowance of Appeal Granted Aug. 9, 1985.

      Joseph Roda, Lancaster, for appellant.
    Thomas J. Finucane, Chambersburg, for appellee.
    Before WICKERSHAM, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

The issues on appeal are whether the antenuptial agreement in question was valid and, if so, whether it had been breached. We find that the agreement was enforceable and, accordingly, reverse the order below.

On January 9, 1977, 68-year-old George W. Geyer, II, the decedent, married 56-year-old Rosalie S. Geyer, appellee, in Chambersburg, Pa. Decedent had been previously married twice, and both of his former wives had predeceased him. Appellant, George W. Geyer, III, is decedent’s son from his first marriage and his sole heir. Appellee also had two prior marriages, and the three children born to her first marriage are all married with families and in good financial condition. Decedent died testate at the age of 74 on May 1, 1982. On May 7, 1982, his will dated July 13, 1981 was probated and letters testamentary were issued to appellant as the executor of the estate. The will provides, inter alia, the following:

SECOND. I give, devise and bequeath my home residence at 542 Guilford Avenue, Chambersburg, Pennsylvania, and the sum of Twenty Thousand ($20,000.00) Dollars, to my wife, Rosalie S. Geyer [appellee], in accordance with the terms of our anti-nuptial [sic] agreement dated December 30, 1976.
THIRD. I give, devise and bequeath all the rest, residue and remainder of my estate whatsoever and wheresoever situate, to my son, George W. Geyer, III, [appellant] absolutely, if he is living at the time of my death.

On May 8, decedent’s safe deposit box at his bank was opened by appellant and his attorney in the presence of the bank’s branch manager. Among the contents of the box, they found an antenuptial agreement, which is set forth in its entirety as follows:

ANTE-NUPTIAL AGREEMENT
MADE this 30th day of December, in the year nineteen hundred and seventy-si# (1976);
BETWEEN George W. Geyer, of the Borough of Cham-bersburg, Franklin County, Pennsylvania, FIRST PARTY,
AND
Rosalie Werner, of Greene Township, Franklin County, Pennsylvania, SECOND PARTY.
WHEREAS, the said parties contemplate entering into marital relations with each other and each of the parties has been previously married;
WHEREAS, the first party is possessed of real and personal property, and the ownership and operation of Geyer Lumber & Millwork Co., Inc., the fuel oil business, and Geyer’s Kraft Korner, Inc.;
WHEREAS, the first party has a son, George W. Geyer, III, five grandchildren, and six great grandchildren;
WHEREAS, the second party’s heirs are three children and_grandchildren; and
AND WHEREAS, the parties hereto, both having full knowledge and understanding of the other party’s financial worth and financial position, agree with the other that their existing legal rights or the existing legal rights of their children and heirs shall not be affected by the proposed marriage as herein stated:
NOW, THEREFORE, it is mutually agreed as follows:
1, - That the first party shall, during the continuance of his marriage with the second party, provide a home for the second party and shall use his income to provide reasonable support, maintenance and medical expenses for the second party, and upon the death of the first party if the second party survives him, then the first party will either devise or convey to the second party the residence property, free and clear of all encumbrances, including the household furniture and furnishings less certain items which mil be designated for his child or grandchildren.
2. That upon the death of the first party, the second party surviving him and living with him at the said time as his wife, shall be awarded, given or bequeathed a sum of Twenty Thousand ($20,000.00) Dollars to provide a substantial contribution to her way of living.
3. That the first party agrees with the second party and the second party agrees with the first party that in consideration of the two previous provisions by the first party, the second party will not make any claim to or file an election to any other portion of the first party’s estate.
4. That the first party, in consideration of these agreements, understands and agrees that the second party may dispose of her estate in any way she wishes to do so, either by gift, devise or by will.
5. That it is expressly agreed that by virtue of the said marriage, neither party hereto shall have or acquire any right, title or claim in or to the real or personal estate of the other, except as herein provided, and the estate of each shall descend to and vest in his or her heirs-at-law, legatees or devisees as may be prescribed by his or her last will and testament.
6. That it is expressly agreed that if either party shall mortgage, sell or convey his or her real estate, the other party hereto shall upon request join in any and every mortgage, deed, or other instrument that may be necessary for the eventual transfer of the same.
7. That this agreement is entered into by each party with full knowledge on the part of each of the extent and probable value of all of the property, or estate, of the other, and of all the rights, that but for this agreement, would be conferred by law upon each of them in the property, or estate, of the other, by virtue of the consummation of the said proposed marriage; and it is the express intention and desire of the parties hereto that their respective rights in and to each other’s property, or estate, of whatsoever character the same may be, shall be determined and fixed by this agreement, and not otherwise.
8. That this agreement shall bind the parties hereto, their heirs, executors and assigns.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals, the day and year first above written.
WITNESS:
_ /s/ George W. Geyer (SEAL)
GEORGE W. GEYER
FIRST PARTY
_ _/s/ Rosalie Werner_(SEAL)
ROSALIE WERNER
SECOND PARTY

(Emphasis added). Although there is no evidence as to the identity of the individual who dated the agreement or as to the actual date that decedent and appellee signed the agreement, the lower court concluded that the agreement was executed sometime between December 28,1976, and April 4, 1977, which was the earliest date that the decedent could have placed the agreement in his safe deposit box because the bank’s records disclosed the absence of any entries in the box between May 11, 1976 and April 4, 1977.

On July 2, 1982, appellee filed her election to take against the will. Appellant then filed a petition on July 15 to vacate and set aside the election on the ground that it was contrary to and in violation of the December 30, 1976 antenuptial agreement. Appellee filed an answer denying that she ever entered into or executed the agreement. Following a series of hearings on August 10 and 11, 1982, October 21, 1982, and January 24, 1983, the lower court denied appellant’s petition to vacate in a March 22, 1983 Order and Opinion. Although the court concluded from witnesses’ testimony that appellee was aware of the ante-nuptial agreement and had signed it, it also found that: (1) Decedent had breached the agreement by failing to bequeath to appellee in his will “the household furniture and furnishings” as promised in the agreement; (2) Decedent did not make a reasonable provision for appellee in the antenuptial agreement; and (3) Decedent did not make a full and fair disclosure of his worth to appellee in connection with the antenuptial agreement. This appeal from the March 22, 1983 order followed.

We must first determine whether the antenuptial agreement was a valid contract.

Parties to an Antenuptial Agreement providing for the disposition of their respective estates do not deal at arm’s length, but stand in a relation of mutual confidence and trust that calls for the highest degree of good faith and a reasonable provision for the surviving spouse, or in the absence of such a provision a full and fair disclosure of all pertinent facts and circumstances. Gelb Estate, 425 Pa. 117, 123, 228 A.2d 367; Kaufmann Estate, 404 Pa. 131, 136, 171 A.2d 48; McClellan Estate, 365 Pa. 401, 407, 75 A.2d 595; Whitmer’s Estate, 224 Pa. 413, 73 A. 551.
However, it is too often forgotten that one of the two principal purposes of an Antenuptial Agreement is to change the provisions which the statutory law of Pennsylvania makes for a surviving spouse. Emery Estate, 362 Pa. 142, 147, 66 A.2d 262.
(1) An Antenuptial Agreement is presumptively valid and binding upon the parties thereto.
(2) The person seeking to nullify or avoid or circumvent the Agreement has the burden of proving the invalidity of the Agreement by clear and convincing evidence that the deceased spouse at the time of the Agreement made neither (a) a reasonable provision for the intended spouse, nor (b) a full and fair disclosure of his (or her) worth. Gelb’s Estate, 425 Pa. 123, 228 A.2d 367, supra; Kaufmann’s Estate, 404 Pa. 136, 171 A.2d 48, supra; McClellan’s Estate, 365 Pa. 407, 75 A.2d 595, supra; Emery’s Estate, 362 Pa. 142, 146, 66 A.2d 262, supra; Snyder’s Estate, 375 Pa. 185, 188, 100 A.2d 67.
(3) In evaluating the reasonableness of the provision for the survivor, such reasonableness must be determined as of the time of the Agreement and not by hindsight. Gelb’s Estate, 425 Pa. 123, 228 A.2d 367, supra; Kaufmann’s Estate, 404 Pa. 137, 171 A.2d 48, supra. Reasonableness will depend upon the totality of all the facts and circumstances at the time of the Agreement, including (a) the financial worth of the intended husband; (b) the financial status of the intended wife; (c) the age of the parties; (d) the number of children each has; (e) the intelligence of the parties; (f) whether the survivor aided in the accumulation of the wealth of the deceased spouse; and (g) the standard of living which the survivor had before marriage and could reasonably expect to have during marriage.
(4) Full and fair disclosure does not require the disclosure of the exact amount of his or her property: Kauf-mann Estate, 404 Pa. 136, 171 A.2d 48, supra; Emery Estate, 362 Pa. 146, 66 A.2d 262, supra; Holwig Estate, 348 Pa. 71, 74, 33 A.2d 915; McCready’s Estate, 316 Pa. 246, 255, 175 A. 554.
(5) Even where there is a valid Antenuptial Agreement, this does not prohibit subsequent inter vivos gifts and testamentary bequests to a surviving spouse.

Estate of Friedman, 483 Pa. 614, 626-27, 398 A.2d 615, 621-22 (1978), quoting Hillegass Estate, 431 Pa. 144, 149-51, 244 A.2d 672, 675-76 (1968) (emphasis in original). Accord, In re Estate of Kester, 486 Pa. 349, 353-54, 405 A.2d 1244, 1246 (1979); Harrison Estate, 456 Pa. 356, 359-60, 319 A.2d 5, 6-7 (1974); Ratony Estate, 443 Pa. 454, 460-61, 277 A.2d 791, 794-95 (1971); Perelman Estate, 438 Pa. 112, 114, 263 A.2d 375, 376 (1970); Vallish Estate, 431 Pa. 88, 92, 244 A.2d 745, 747 (1968); Barnhart v. Barnhart, 376 Pa. 44, 53, 101 A.2d 904, 908 (1954). Thus, the validity of an antenuptial agreement depends upon the presence of one of two factors: a reasonable provision for the wife, or, in the absence of such provision, a full and fair disclosure to the wife of the husband’s worth. Kaufmann Estate, 404 Pa. 131, 136, 171 A.2d 48, 136 (1961); Zeigler Estate, 381 Pa. 436, 440, 113 A.2d 271, 273 (1955); Groffs Estate, 341 Pa. 105, 112, 19 A.2d 107, 111 (1941); Belsky v. Belsky, 196 Pa.Superior Ct. 374, 376-77, 175 A.2d 348, 349-50 (1961).

The test of the reasonableness of the provision for the wife is not whether she would receive as much as she would be legally entitled to receive in the absence of the antenuptial agreement, but whether the provision for her is sufficient to enable her to live comfortably after her husband’s death, in substantially the same way as she lived prior to the marriage, considering all the circumstances[.]

Emery Estate, 362 Pa. 142, 147, 66 A.2d 262, 265 (1949) (citations omitted). Accord, McClellan Estate, 365 Pa. 401, 405, 75 A.2d 595, 597 (1950); Groffs Estate, supra 341 Pa. at 110, 19 A.2d at 110.

Here, the relevant facts are as follows: Appellee’s second husband had been a chemical engineer earning approximately $35,000 a year which permitted him and his wife to enjoy a comfortable lifestyle, all of the necessities of life, a social life, and the capability to make investments. After he died of cancer on March 16, 1976, appellee moved from Fairfield, Illinois, to Chambersburg, Pennsylvania, on August 1, 1976, to be close to her sister. She moved into a townhouse which required a monthly rental payment of $175. At that time, appellee had $30,000 in certificates of deposit paying 9% interest per annum which she had purchased from life insurance proceeds on the death of her second husband, a $5,000 second mortgage on the home she had sold in Fair-field, and a $4,000 checking account; she furnished the townhouse with new furniture and some antiques. She was paid $108/week for playing the piano at Schoenberger’s Restaurant and earned $75/week teaching piano to 15 students at $5 per student. She also received a United States Navy Pension in the amount of $125 per month by reason of the death of her second husband which was payable until her death or remarriage.

In mid-October 1976, appellee was hospitalized for several days for alcohol abuse and, while in the Chambersburg Hospital, met the decedent who was a leader and active member of the Chambersburg Chapter of Alcoholics Anonymous. At that time, decedent was a successful businessman with oil, real estate and lumber interests, and a net worth of approximately $600,000. Appellee and decedent saw each other daily, and decedent began talking about marriage within two weeks of their meeting. Appellee told decedent that she did not want to get married because she had the Naval pension for life. Decedent dismissed the argument by offering $20,000 to replace the pension. Ap-pellee also told decedent that she wanted her own home and decedent replied that he would put his home in both their names. On January 4, 1977, appellee agreed to marry the decedent.

During their five-year marriage, decedent never gave appellee the $20,000 nor conveyed his home to her. Appel-lee testified that she spent $10,000 of her own money on clothes and on medico-hospital, automobile and life insurance premiums. Decedent gave her for her own use 75% of all of the rentals ($90-100 month) on a cottage on his property. He also gave her gifts, including expensive items such as a $3,000 electric piano. In 1982, he purchased a used 1980 Oldsmobile Cutlass automobile for appellee for $6,000 in cash plus a trade-in of her automobile. He paid most of her medical expenses and gave her cash for household expenses. When the decedent began receiving social security payments of $760/month, he deposited them in a joint account for their joint use. He also caused her to be covered by the Geyer Lumber and Millwork Company medical insurance program. He encouraged appellee to take courses toward her Bachelor of Arts Degree in Music at Wilson College and paid her tuition. When appellee’s mother came to Chambersburg to live, decedent provided her with a rent-free apartment in an apartment complex that he owned and paid her utility bills.

At the date of decedent’s death, appellee’s assets were $2,000 in a checking account, $2,000 in a savings account, one $15,000 certificate of deposit, and $80 in a joint checking account with the decedent. Other than interest income, her sole independent source of income was $50/week from giving piano lessons to ten students. Subsequent to decedent’s death, appellee received $5,000 from Aetna Life Insurance Company on her husband’s death, the decedent’s “profit-sharing check” of approximately $10,000, a joint income tax refund for overpayment of 1981 taxes in the amount of $7,700, and $9,752.18 from the Hartford Life Insurance Company on a life insurance policy payable on the death of the decedent. In July 1982, appellee became eligible to receive social security as a result of decedent’s earnings, and she received $664 in that month and anticipates receiving a like sum each month for life. Under the antenuptial agreement, she was to receive (1) the decedent’s home at 542 Guilford Avenue, Chambersburg, which had a fair market value of approximately $50,000 as of December 30, 1976; (2) the household furniture and furnishings (less certain specified items) with an estimated value of $10,-173.50; and (3) $20,000 cash. Thus, the total cash value appellee would receive was approximately $80,173.50. Charles J. Schlichter, Jr., a financial planner involved with annuities, investments and life insurance, testified that $20,-000 invested by or for a 56-year-old female in December 1976 in an annuity which provided for the systematic liquidation of the principal and income and with no survivors benefits would provide monthly payments of $128.89 per month to the annuitant for life.

Under these circumstances, we find that the provision in the antenuptial agreement was sufficient to enable appellee to live comfortably after the decedent’s death in substantially the same, if not better, manner than that she enjoyed prior to the marriage. Thus, we hold that appellee has failed to prove by clear and convincing evidence that the provision for her in the antenuptial agreement was unreasonable. See, e.g., Emery Estate, supra; Groffs Estate, supra.

Having found that the provision was reasonable, that conclusion would ordinarily end our inquiry and obviate the need to decide whether there was full and fair disclosure. However, our Supreme Court has stated that “[wjhere the provision made for the wife is grossly disproportionate to the value of the husband’s estate, fraudulent concealment will be presumed and the burden of proof thrown on him to show that full disclosure had been made.” McClellan Estate, supra 365 Pa. at 405, 75 A.2d at 597; Flannery’s Estate, 315 Pa. 576, 580, 173 A. 303, 304 (1934). See also Groff's Estate, supra 341 Pa. at 110, 19 A.2d at 110 (where no provision is made for wife or provision made for her is unreasonably disproportionate to the then means of the intended husband, it raises presumption of designed concealment and throws burden on those alleging the validity of the agreement to show that it was fairly made); Clark’s Estate, 303 Pa. 538, 543, 154 A. 919, 920 (1931) (if provision was unreasonably disproportionate to future husband’s means, it raises presumption of designed concealment and throws burden upon those alleging validity of the agreement to show that it is fair). Here, the antenuptial agreement provided for appellee to receive approximately $80,173.50, or 13.4% of the decedent’s total estate. As of December 30, 1976, the total value of the decedent’s real estate, household goods, securities, coin collection and savings account was $782,385.91, and his total obligations were $188,013.02, leaving him with a net worth of $594,372.89. Assuming, then, that the provision under the agreement can be considered grossly disproportionate to the value of the decedent’s estate, we nevertheless find that there was full disclosure.

First, the antenuptial agreement signed by appellee recited that the parties had “full knowledge and understanding of the other party’s financial worth and financial position.” This provision is prima facie evidence that a full and fair disclosure had been made by the decedent to appellee of his worth. See McClellan Estate, supra 365 Pa. at 406, 75 A.2d at 597. “If one who signs a paper can read and write, and is under no duress when he or she signs it, ‘the law presumes that, under such circumstances, [it is signed] with full knowledge of its contents’: ...” McCready’s Estate, 316 Pa. 246, 255, 175 A. 554, 557 (1934) (citations omitted). See also Emery Estate, supra 362 Pa. at 147, 66 A.2d at 265. Next, the record reveals that prior to December 30, 1976, appellee was aware of the facts that the decedent enjoyed a very comfortable lifestyle, dressed well, lived well, had five or six telephones and four television sets in his home, and had employees from the company do the yard and maintenance work around the home. She had visited the decedent in his home, been shown through it, met his housekeeper and observed its furnishings. She described it as a comfortable home located on a two-acre tract with an in-ground pool, a nice yard, a two-car garage, and a cottage. The decedent had shown her the exterior of the Geyer Lumber and Millwork Company, and told her that that was to go to his son. At that time, she was aware of the Geyer Oil Company trucks, fuel oil business and oil tanks behind the decedent’s home, and understood it to be part of the business which was to stay in the Geyer family. She was also aware of the fact that decedent and/or his family owned real estate where the foundation of an apartment building was being laid. Decedent had also mentioned Geyer Kraft Korner to her but had said that it belonged to his previous wife, who had left it either to the corporation or to their granddaughter.

Although decedent never, as far as we can tell from the record, provided appellee with specific information on the value of his real estate holdings, investments, business, or income, in order for an antenuptial agreement to be valid, it is not necessary that each party have exact knowledge of the worth of the other contracting party. Emery Estate, supra 362 Pa. at 146, 66 A.2d at 264; Holwig Estate, 348 Pa. 71, 75, 33 A.2d 915, 917 (1943); McCready’s Estate, supra 316 Pa. at 253, 175 A. at 556.

We also note that the circumstances surrounding the execution of the antenuptial agreement are rather sketchy. Prior to December 28, 1976, the decedent conferred with his attorney and instructed him as to what he wanted in an antenuptial agreement between the decedent and appellee which the attorney was to prepare. According to a notation on the attorney’s file copy, the decedent picked up the two original unexecuted and undated antenuptial agreements on December 28, 1976, and took them with him for signing. Another notation on the file copy disclosed that as of March 1977, decedent had both existing originals in his possession, and an undated notation stated: “Margery brought them back”. When the agreement was found in decedent’s safe deposit box on May 8,1982, it was dated and signed by both the decedent and appellee. “If there is no evidence of what took place at the execution of the agreement which the appellant seeks to have set aside, it is presumed there was no designed concealment or imposition.” McCready’s Estate, supra, 316 Pa. at 255, 175 A. at 557.

At the time of the execution of the antenuptial agreement in the instant case, appellee was an intelligent 56-year-old woman of some determination as evidenced by her initial refusals to marry decedent despite his persistence and her insistence on the security of a home and a life pension. Under the circumstances of this case, we see no reason to invalidate an antenuptial agreement entered into by parties of mature years with separate children and separate estates where there is no evidence of fraud or wrongdoing. If an elderly person marrying another elderly person is provided, after the spouse’s death, with comfortable support, he or she has no just cause to complain. McCready’s Estate, supra, 316 Pa. at 254-55, 175 A. at 557. See, e.g., Perelman Estate, supra; Zeigler Estate, supra; Emery Estate, supra.

Having concluded that the antenuptial agreement is valid, we must now determine whether decedent breached that agreement. The lower court, in allowing appellee to take against the will, found that there was a breach because decedent failed to bequeath to appellee in his will the household furniture and furnishings as promised in the antenuptial agreement. Appellant argues that the court’s construction of the decedent’s will was erroneous. We agree.

“It is, of course, a cardinal rule that a will is to be construed according to the intent of the testator.” ... Where a court feels that it can with reasonable certainty ascertain the intent of the testator through examination of the will itself, the court generally does not look to matters external to that document____ Where, however, a court cannot feel such confidence in distributing the estate by reference to the will only, or where a latent ambiguity is discovered, it is proper and necessary to inquire into the circumstances of the testator at the time of execution of his will and other evidence which bears on intent.

Estate of Schwenk, 326 Pa.Superior Ct. 253, 258, 473 A.2d 1078, 1080 (1984), quoting Estate of Taylor, 480 Pa. 488, 494, 391 A.2d 991, 994 (1978) (citations omitted). “In ascertaining testamentary intent, the court examines the language of the will, the scheme of distribution, the circumstances surrounding the execution of the will and other relevant facts.” Estate of Schwenk, supra. Accord, Estate of Stewart, 325 Pa.Superior Ct. 545, 552, 473 A.2d 572, 575 (1984); Matter of Estate of Coniglio, 324 Pa.Superior Ct. 527, 538-539, 472 A.2d 205, 211 (1984); Estate of Tower, 323 Pa.Superior Ct. 235, 246, 470 A.2d 568, 574 (1983); Estate of McCredy, 323 Pa.Superior Ct. 268, 285-86, 470 A.2d 585, 594 (1983); In re Estate of Hillegass, 322 Pa.Superior Ct. 139, 144-48, 469 A.2d 221, 224-25 (1983). See also Matter of Estate of Blough, 474 Pa. 177, 185, 378 A.2d 276, 280 (1977). A latent ambiguity exists “[w]here the words of a will are on its face plain, consistent and certain, and where the uncertainty arises from extrinsic facts or circumstances in relation to the property bequeathed.” Thomas Estate, 457 Pa. 546, 551-52, 327 A.2d 31, 34-35 (1974). Once a latent ambiguity is found to exist, “parol evidence is admissible to explain or clarify the ambiguity.” Id.

In the instant case, the plain language of the will states that appellee is to receive the testator’s “home residence” and $20,000 “in accordance with the terms of our antinuptial [sic] agreement dated December 30, 1976.” The antenuptial agreement, however, provides that, upon decedent’s death, appellee is to receive “the residence property, free and clear of all encumbrances, including the household furniture and furnishings less certain items which will be designated for his child or grandchildren” and the $20,000. (Emphasis added). Thus, a latent ambiguity exists as to whether “home residence” includes the household furniture and furnishings. Keeping in mind that the testator’s intent controls, we look to the circumstances surrounding the execution of the will and any other relevant facts.

Sometime prior to July 13, 1981, the decedent conferred with Timothy S. Sponseller, Esq., for the purpose of having the attorney prepare a new will for him. The will was executed by the decedent on July 13,1981, and witnessed by Attorney Sponseller and Betty H. lie. Sponseller testified that he had seen a copy of the December 30, 1976 antenup-tial agreement in the files of the decedent’s former attorney. Appellant testified that Sponseller had shown this copy to him in January of 1982. Thus, the lower court found that the attorney who drafted decedent’s last will had seen and was familiar with the antenuptial agreement within six months of the execution of the will and at least three months prior to decedent’s date of death. On January 11, 1982, appellant wrote to decedent and, inter alia, stated:

Whatever you want for me as your heir, I will of course accept. Your desires as you have expressed them in your will are statements of love and generosity which mean more to me than you can possibly imagine.
The peculiar Pennsylvania law however will not permit it. I have researched that law and what it says simply stated is that:
A) — The surviving spouse can elect to accept the will or take 50% of the estate. Marriage agreements are not relevant.

(Emphasis in original). Appellant apparently had a close relationship with the decedent and regularly discussed business and family matters with him. There was no evidence, however, that the decedent relied upon appellant’s advice concerning a spouse’s right to elect to take against the will in Pennsylvania. Additionally, within one or two weeks of his death, the decedent in appellee’s presence asked appellant to take care of appellee and appellant promised him that he would. Appellant later explained that he promised only to see that, as executor of the decedent’s estate, appellee received everything that the decedent wanted her to have. Three or four days before the decedent’s death on May 1, 1982, the decedent signed a list prepared by appellant and identified as “household furnishings and other items, referred to in the signer’s will, as specified items which are not included with the residence at 542 Guilford Avenue.” The items included on the list are the following:

Sterling Silver — Twelve—6 pc. Place Settings — Wallace— Grand Baroque w/chest
Two Plate Silver — Vegetable Dishes w/Covers
Spode Dishes (Buttercup Pattern) — complete service for twelve including Vegetable Dishes, Platters, Cream and Sugar, et cetera
Steinway Grand Piano — purchased by Margaret D. Geyer
Two Cellos
Antique Sofa
Duncan Phyfe Sofa
Two antique Queen Ann Chairs — purchased by Margaret D. Geyer
Bedroom Suite — Mahogany (left to Margaret D. Geyer as part of her inheritance from her Mother’s estate)
Maple Rocker w/woven seat — from George C. Geyer Estate
Small Rocker w/woven seat — from childhood bedroom of George W. Geyer, II
Grandfather Clock — from George C. Geyer
Doulton Figurines — Male
Copper Washboiler (George C. Geyer Estate)
All Records of George W. Geyer, III (phonograph)
All Antique Crocks and Jugs from 68 South Second Street
Antique Chest from 68 South Second Street.
Oldsmobile Automobile
Geyer (George W. Geyer Family Bible)
German Bibles — Neusbaum Family
Exercycle
Pier Mirror from 68 South Second Street
George W. Geyer Books
Antique Child’s Bed — above Garage

Although the antenuptial agreement does refer to “certain items which will be designated for his child or grandchildren,” there is no reference in the decedent’s will to any such list. The value of those household items listed was appraised at $7,790. Subtracting this amount from the value of all of the inventory of household furniture and furnishings, a total of $17,963.50, the value of those household goods which appellee was to receive was $10,173.50.

Considering the above circumstances, we think it clear that the decedent’s intent was to comply with the December 30, 1976 antenuptial agreement in all respects by bequeathing to appellee his residence at 542 Guilford Avenue, including all the household furniture and furnishings, less those items specified on the list, and $20,000 cash. Therefore, construing the will according to the testator’s intent, we hold that appellee is entitled to receive the home, all the household furniture and furnishings not excluded by the list, and $20,000 in cash. Accordingly, we find no breach and direct the estate to carry out the decedent’s intent to comply fully with the provisions of the antenuptial agreement. See In re Estate of Cummings, 493 Pa. 11, 425 A.2d 340 (1981).

Reversed and remanded for proceedings consistent with this opinion.

Jurisdiction is not retained.

      . On May 1, 1982, the date of the decedent’s death, a spouse taking against the will of a deceased spouse where there was but one child was entitled to receive one-third (*/3) of the decedent’s estate. See 20 Pa.C.S.A. § 2203 (adopted 1978).
      On December 30, 1976, the date of the antenuptial agreement, a surviving spouse taking against the will where there was but one child was entitled to receive fifty percent (50%) of the deceased spouse’s estate. See 20 Pa.C.S.A. § 2508 (repealed 1978).

      . Appellee has not appealed the lower court’s finding that she did, in fact, knowingly sign the antenuptial agreement.

      . The notice of appeal was filed April 11, 1982. The lower court then ordered appellant to file a Pa.R.A.P. 1925(b) statement of the matters complained of on appeal, which appellant did on May 5. On June 9, the court filed a supplemental opinion affirming its March 22, 1983 decision.

      . “The alternative requirement of either full disclosure or reasonable provision is intended to guarantee that the potentially surviving spouse was fairly treated and did not unwittingly abandon valuable statutory rights of inheritance.” Perelman Estate, 438 Pa. 112, 114, 263 A.2d 375, 376 (1970).


text:
    487 A.2d 912
    The PEOPLES NATIONAL BANK OF LEBANON v. Bernard NOBLE and Ada R. Noble, Appellants.
    Superior Court of Pennsylvania.
    Argued Aug. 15, 1984.
    Filed Jan. 18, 1985.

      Philip B. Korb, Philadelphia, for appellants.
    George E. Christianson, Lebanon, for appellee.
    Before WICKERSHAM, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellants contend that the lower court lacked jurisdiction to fix the fair market value of real property sold in an execution proceeding pursuant to the Deficiency Judgment Act, 42 Pa.C.S.A. § 8103(a). We agree and, accordingly, vacate the lower court’s order.

On October 22, 1982, appellee Bank filed a complaint in mortgage foreclosure against appellants seeking to foreclose appellants’ home at 534 Hemlock Lane, Lebanon, Lebanon County. On December 14 appellee filed a praecipe to enter judgment against appellants because appellants failed to answer the complaint; judgment was entered in favor of appellee on the same day in the amount of $134,-654.92. On February 17, 1983, the property was sold to appellee at a sheriff’s sale, and, on February 28, the deed to the property was delivered to appellee. Appellee then filed a “Petition for Judgment Creditor to Fix Fair Market Value of Real Estate Pursuant to Deficiency Judgment Act on May 23, 1983. Following a June 16 hearing, because appellants’ previous counsel failed to enter an appearance until the day of the hearing or file an answer pursuant to § 8103(c) of the Act, the court entered an order, filed June 22, determining as a matter of law that the fair market value of the property as of the date of sale was $130,000. On June 20, appellants filed a petition to strike or set aside the June 16 order, for permission to file an answer nunc pro tunc, and to schedule a new hearing for the purpose of allowing a defense. Appellee filed an answer to this petition on July 11. On July 18, however, instead of proceeding on their petition, appellants filed a notice of appeal from the June 16 order, thus depriving the lower court of jurisdiction to hear the petition. On December 20, 1983, the lower court ordered appellants to file a Pa.R.A.P. 1925(b) concise statement of the matters complained of on appeal, which appellants did on January 3, 1984.

On appeal, appellants contend for the first time that the lower court lacked subject matter jurisdiction to determine the fair market value of their home. We note that the question of the lower court’s jurisdiction may be raised for the first time at the appellate level. Pennsylva nia Human Relations Commission v. Alto-Reste Park Cemetery Association, 453 Pa. 124, 128 n. 4, 306 A.2d 881, 884 n. 4 (1973); Marcus v. Diulus, 242 Pa.Superior Ct. 151, 157, 363 A.2d 1205, 1208 (1976); Appeal of Austerlitz, 63 Pa. Commonwealth Ct. 140, 143, 437 A.2d 804, 805 (1981).

The Deficiency Judgment Act provides that:

Whenever any real property is sold, directly or indirectly, to the judgment creditor in execution proceedings and the price for which such property has been sold is not sufficient to satisfy the amount of the judgment, interest and costs and the judgment creditor seeks to collect the balance due on said judgment, interest and costs, the judgment creditor shall petition the court having jurisdiction to fix the fair market value of the real property sold. The petition shall be filed as a supplementary proceeding in the matter in which the judgment was entered.

42 Pa.C.S.A. § 8103(a) (emphasis added). It is well-settled that a deficiency judgment cannot be obtained in a mortgage foreclosure action. Meco Realty Co. v. Burns, 414 Pa. 495, 497-98, 200 A.2d 869, 871 (1964); McDowell National Bank v. Stupka, 310 Pa.Superior Ct. 143, 146-48, 456 A.2d 540, 542-43 (1983); National Council of the Junior Order of United American Mechanics of the United States of North America v. Zytnick, 221 Pa.Superior Ct. 391, 393-94, 293 A.2d 112, 114 (1972). A judgment in a mortgage foreclosure action is in rem and “imposes no personal liability upon the mortgagors against whom the judgment is obtained.” Meco Realty Co. v. Burns, supra, 414 Pa., at 497-98, 200 A.2d at 871. As we stated in National Council, “mortgagees who proceed by way of mortgage foreclosure and who have bought the property would be able to recover a deficiency only if they obtained a personal judgment and petitioned in that proceeding to fix fair value not later than six months after the sale of the property.” National Council, supra, 221 Pa., at 394, 293 A.2d at 114. Here, because the instant case is a mortgage foreclosure action, we agree with appellants that the court below was without jurisdiction to fix the fair market value of the property sold.

Appellee contends, however, that the judgment in its favor was both in rem and in personam, relying upon Kretschman v. Stoll, 238 Pa.Superior Ct. 51, 352 A.2d 439 (1975), alloc, denied, 238 Pa.Superior Ct. xxxvii. In Kretschman, this Court held that the following prayer for relief requested both in rem relief against the property and in personam relief against the defendants:

Plaintiffs demand judgment against Defendants in the amount of FORTY-FIVE THOUSAND (45,000.00) DOLLARS together with interest and attorney’s commission and for the other interests, costs, charges collectible under the mortgage and for foreclosure and sale of the mortgaged property.

Id., 238 Pa.Superior Ct. at 54-55, 352 A.2d at 441 (emphasis in original). Here, appellee’s prayer for relief requested the following:

WHEREFORE, Plaintiff demands judgment for the aforesaid amounts, together with collection fees, accrued late charges, costs of suit, etc. and for foreclosure and sale of the mortgaged premises.

(Appellee’s Complaint in Mortgage Foreclosure at 5) (emphasis added). At first glance, this prayer does appear similar to the one at issue in Kretschman. For the following reasons, however, we find that appellee obtained only an in rem judgment.

First, appellee’s complaint is captioned “Mortgage Foreclosure;” nowhere therein is a bond upon which a personal judgment can be obtained ever mentioned. Indeed, paragraph 5 states that “[t]he mortgages are in default,” and then paragraph 6 avers that: “In accordance with the terms and conditions of the mortgages, the entire principal balance ... becomes immediately due and payable upon such default.” (Emphasis added). Paragraph 7 further states that appellants were given notice that if they failed to pay the amounts owing “action would be instituted to foreclose on the mortgages.” And the written notice sent by appellee contains this language: “We may also sue you personally for the unpaid principal balance and all other sums due under the mortgage.” (Appellee’s Exhibit A to Complaint in Mortgage Foreclosure) (emphasis added).

Additionally, Kretschman is not “on all fours with the case at bar.” See Appellee’s Brief at 4. Unlike the prayer for relief in that case, the instant prayer failed to ask explicitly for judgment against appellants in addition to asking for foreclosure and sale of the mortgaged property. Kretschman may also be distinguished because not only did the plaintiffs in that case request both a personal judgment and a judgment against the property, but also “both types of relief were granted by order of the lower court.” 238 Pa.Superior Ct. at 55, 352 A.2d at 442. Here, appellee’s praecipe to enter judgment against appellants asked that appellee’s damages include the “Balance of Principal of Mortgage: $99,989.29.” (Emphasis added). There was no mention of any damages on a bond, and the docket entry for the judgment does not indicate that an in personam as well as an in rem judgment was granted in favor of appellee. Thus, there is simply no evidence that the lower court granted both types of relief.

Furthermore, this Court questioned the Kretschman holding in Signal Consumer Discount Co. v. Babuscio, 257 Pa.Superior Ct. 101, 390 A.2d 266 (1978) (en banc). In Signal Consumer, we held that the Pennsylvania Rules of Civil Procedure did not permit a defendant in a mortgage foreclosure action to join in an additional defendant whose purported liability to either the mortgagee or the original defendant was based on a claim in assumpsit. The decision was based, in part, on Rule 1141(a), which provided that “[a]s used in this chapter, ‘action’ means an action at law to foreclose a mortgage upon any estate, leasehold or interest in land but shall not include an action to enforce a personal liability,” and on Rule 1146, which provided that “[t]he plaintiff may state in the complaint two or more grounds for foreclosure but may not state more than one cause of action.” We then concluded: “Read in conjunction with Rule 1141, [Rule 1146] prevents a mortgagee from joining a contractual claim on a mortgage bond to a mortgage foreclosure claim for the judicial sale of the mortgaged property.” Id., 257 Pa.Superior Ct. at 107, 390 A.2d at 269. Regarding Kretschman, the Court stated:

In [Kretschman ], the mortgagees instituted a foreclosure action in which they requested both an in rem judgment against the property and in personam judgment against the mortgagors. After sale of the property, the mortgagees instituted an action under the Deficiency Judgment Act, [then] Act of July 16, 1941, P.L. 400, § 1; 12 P.S. § 2621.1 et seq. The mortgagees secured a deficiency judgment; subsequently, the mortgagors filed a petition to strike this judgment. Our Court affirmed the lower court’s refusal to strike the deficiency judgment, despite the mortgagors’ contention that the mortgagees could not properly obtain both a judgment against the land and an in personam judgment in a mortgage foreclosure action. We held that the mortgagors had not presented this contention in the mortgage foreclosure action and had thus waived their right to present it for our consideration. See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). In dictum, we observed: “It is our opinion that the liberal philosophy of the Rules [of Civil Procedure] which permits various actions to be joined in one complaint extends to actions of mortgage foreclosure and assumpsit. Therefore, while the appellees should have raised their demand for an in rem judgment in one court and for an in personam judgment in another, the failure to do so is not fatal to this case. For purposes of judicial economy, moreover, it is preferable to have all actions based on one set of facts brought at one time and tried together.” Supra, 238 Pa.Super. at 55, n. 1, 352 A.2d at 442 [n. 1].

Id., 257 Pa.Superior Ct. at 107-08 n. 7, 390 A.2d at 269 n. 7 (emphasis added). Thus, we suggested in Signal Consumer that, if the joinder of actions issue had been properly raised in Kretschman, the result in that case may have been otherwise.

“The procedure in connection with the foreclosure of mortgages is purely statutory and the requirements must be strictly followed.” First Federal Savings and Loan Association of Greene County v. Porter, 408 Pa. 236, 244, 183 A.2d 318, 324 (1962), citing Federal Land Bank of Baltimore v. King, 294 Pa. 86, 143 A. 500 (1928). We decline to weaken that procedure by finding that appellee obtained both an in rem and an in personam judgment. Therefore, our conclusion that appellee obtained only an in rem judgment compels us to vacate the order below.

Order vacated.

      . The "aforesaid amounts” referred to above derive from paragraph 8 of the complaint which states that "[t]he amount presently due and owing is $99,570.09..See Pa.R.Civ.P. 1019(g) (“Any part of the pleading may be incorporated by reference in another part of the same pleading or in another pleading in the same action.”).

      . There was an additional mortgage on a property situate in Egg Harbor, Atlantic County, New Jersey.

      . Cf. McDowell National Bank v. Stupka, 310 Pa.Superior Ct. 143, 456 A.2d 540 (1983), where the following prayer for relief was held only to request an in rem judgment:
      Wherefore the plaintiff demands judgment against the defendants, jointly and severally, in the amount of $347,192.30 plus interest from March 3, 1980.

        Id., 310 Pa.Superior Ct. at 149 n. 7, 456 A.2d at 543 n. 7.

      . The en banc panel in Signal Consumer consisted of six of the seven judges who participated in Kretschman. All but one judge joined the Signal Consumer majority.

      . Because of our disposition of this case, we need not address appellant’s other contentions.


text:
    487 A.2d 915
    COMMONWEALTH of Pennsylvania v. Edward Michael KEEFER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1984.
    Filed Jan. 18, 1985.

      Francis M. Socha, Assistant Public Defender, Harrisburg, for appellant.
    Katherene E. Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before SPAETH, President Judge, and CIRILLO and CERCONE, JJ.
   CERCONE, Judge:

After a non-jury trial, Edward Michael Keefer, and a co-defendant were convicted of criminal conspiracy (18 Pa. C.S.A. § 903), possession of methamphetamine and possession with intent to deliver methamphetamine, a Schedule III drug. (35 Pa.C.S.A. § 780-113(a)(16) and (30)). On June 1, 1983, Keefer was sentenced to a period of incarceration of from two (2) to four (4) years.

Appellant argues that the omission of two identifying receipts from the inventory compiled by troopers following the instant search in violation of Pa.R.Crim.P. 2009 should have resulted in their suppression. Additionally, he argues the insufficiency of the evidence to convict him of all of the charges.

Because Rule 2009 does not state a remedy for its violation and because it does not rise to the level of a constitutional rights deprivation, we affirm the trial court’s admission of the omitted receipts. Commonwealth v. DeGeorge, 319 Pa.Superior Ct. 244, 466 A.2d 140 (1983).

In reviewing a case where the sufficiency of the evidence produced is contested, the test is:

“whether accepting as true all of the evidence reviewed in the light most favorable to the Commonwealth, together with all reasonable inferences therefrom, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.” Commonwealth v. Macolino, 503 Pa. 201, 205, 469 A.2d 132, 134 (1983).

This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt. Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977).

Regarded in the light most favorable to the Commonwealth, the evidence presented at appellant’s trial may be summarized briefly. On May 19, 1982, at approximately 2:45 p.m., State troopers executed a search warrant at 3529 Brisbain Street in Paxtang, a northern suburb of Harrisburg. The affidavit alleged that forty-eight hours prior to the warrant’s issuance, a controlled purchase of methamphetamine was made from appellant within the premises to be searched, a two bedroom, one-floor apartment. The troopers found appellant bathing in the bathroom. He was the only person in the apartment, although it was leased to co-defendant Colleen McMullan and one Beth Rhone. Appellant was ordered out of the tub and directed to dress. He proceeded into an adjoining bedroom where he took trousers off the bed and a shirt from the closet doorknob.

Pursuant to the warrant, police seized eighteen packets of methamphetamine and three syringes containing said drug from the bed on which appellant’s trousers had lain. Two briefcases were found in the bedroom. The black one which appellant opened voluntarily contained a valium prescription bearing appellant’s name, syringes, marijuana, identification of appellant, and appellant’s wallet. The green one was unlocked and contained scales, eleven small glassine packets, baggies and a money order indicating appellant as the maker. A receipt from Western Union containing appellant’s name and an address showing the searched premises as his address was found on a dresser in the same bedroom. (It was these two receipts which were the subject of appellant’s first argument.) During the search, appellant gave his address as Susquehanna Street.

As the search continued, appellant’s co-defendant McMul-lan, arrived home. One of the troopers noticed a bulge in her pocket and he asked her to produce what caused it. A box with 19 packets of methamphetamine, packaged substantially in the same way as the twenty-nine recovered from the bedroom, was recovered from her.

One of the troopers who searched the apartment stated that the room into which appellant went contained men’s clothing, and that the other bedroom was apparently shared by the two lessees.

The Commonwealth relied on a theory of constructive possession to substantiate the drug charges. Constructive possession is the ability to exercise a conscious dominion over the illegal substance: the power to control the contraband and the intent to exercise that control. Commonwealth v. Chenet, 473 Pa. 181, 184, 373 A.2d 1107, 1108 (1977). The intent may be inferred from the totality of the circumstances. Commonwealth v. Cash, 240 Pa.Superior Ct. 123, 128, 367 A.2d 726, 729 (1976).

Appellant argues that the Commonwealth did not meet its burden of establishing constructive possession in that it did not link appellant to the clothing found in the bedroom, nor did it in any other way establish appellant’s exclusive control over the bedroom. We disagree. Evidence established that appellant went to the one bedroom which was distinguishable from the other because of the presence of male clothing; indicia of ownership were also found in that bedroom, including receipts, one with the address given as appellant’s, identification, a wallet, briefcases, etc. The circumstances of the seizure of the instant drugs were sufficient to provide an inference that appellant maintained control over the bedroom in which they were seized and, thus, over the drugs.

As for the possession with intent to deliver conviction, appellant argues that the quantity and purity of the methamphetamine, as well as the syringes were consistent with personal use, and not delivery, of the substance. That is true. However, appellant fails to mention the other seized items which unequivocally establish more than just personal use: empty glassine baggies, numerous needles used for injecting drugs, and scales. Moreover, appellant had very recently sold the drug to a police informant. Thus, we find the evidence was sufficient on that conviction.

However, the conspiracy with McMullan to possess with intent to deliver conviction presents a problem. The essence of a criminal conspiracy is a common understanding, no matter how it came into being, that a particular criminal objective be accomplished. Commonwealth v. Plusquellic, 303 Pa.Superior Ct. 1, 449 A.2d 47 (1982). In Commonwealth v. Anderson, 265 Pa.Superior Ct. 494, 501, 402 A.2d 546, 549 (1979), our court, per Hoffman, J., listed circumstances relevant, but insufficient alone, to establish a corrupt confederation:

(1) association between alleged conspirators; (2) knowledge of the commission of a crime; (3) presence at the scene of the crime; and (4) in some situations, participation in the object of the conspiracy collected in Commonwealth v. Plusquellic, supra, 303 Pa.Super., at 5, 449 A.2d at 50.

In the instant case, the Commonwealth relied on the fact that both defendants were found to have similarly packaged methamphetamine in their possession. Moreover, McMullan did admit to leasing the apartment in which appellant was found and in which the drugs were found. However, other facts persuade us that the requisite confederation was not proven at trial.

The “controlled buy” information in the search warrant does not mention McMullan as being present or in any way cooperating with or facilitating appellant’s activities. The drugs and paraphernalia which were found on the premises, except for those on McMullan, were located only in appellant’s bedroom, and not in any common area which could give rise to an inference that appellant acted in concert with the other residents. Evidence established that McMullan occupied a different bedroom from appellant. Two parallel possession charges, rather than a conspiracy to possess with intent to deliver charge are established by the evidence. Our court refused to find a conspiracy between husband and wife in Commonwealth v. Anderson, supra, wherein the informant was told by appellant to hand his money to appellant’s wife, appellant then retrieving the heroin and handing it to the informant in his wife’s presence, and inviting the informant to come back anytime. That appellant-McMullan dwelled in the same apartment is not enough. The evidence just does not connect appellant with McMullan, and we find no corrupt confederation here.

Therefore, judgment of sentence as to criminal conspiracy vacated; as to the remaining convictions, judgment of sentence is affirmed.

      . The Sentencing Court apparently merged the convictions for purposes of sentencing.

      . Our Supreme Court in Commonwealth v. Macolino, supra, quoted Commonwealth v. Gilchrist, 255 Pa.Superior Ct. 252, 386 A.2d 603 (1978) for its insight equally applicable here. The court found the fact that the drugs were found in the bedroom to be of special significance, noting that a bedroom is "a more private place with limited access and usually subject to the exclusive control of the owner or lessee of the premises." Id., 255 Pa.Superior Ct. at 255, 386 A.2d at 605. That appellant’s name was not reported by McMullan as one of the lessees does not alter this principle. (The lease was never produced at trial.)