author: WIEAND, Judge:

text:
    639 A.2d 1215
    Sarah MAXWELL, Appellant, v. Charles KEAS and Patricia Keas, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1994.
    Filed April 7, 1994.
    Reargument and Reconsideration Denied June 17, 1994. .

      Karen L. Saraco, Langhorne, for appellant.
    Leigh A.J. Ellis, Harrisburg, for appellees.
    Before WIEAND, OLSZEWSKI and POPOVICH, JJ.
   WIEAND, Judge:

While Charles and Patricia Keas were away from their home and on vacation, their 19 year old daughter, Kimberly, received a nocturnal visit from Kenneth Maxwell. Kimberly and Kenneth entertained themselves by consuming alcoholic beverages found on a shelf in the Keas’s home. After they had consumed an undetermined amount of alcohol, Kimberly became angry, obtained a knife from the kitchen and stabbed Kenneth in the chest and abdomen, causing him to bleed to death.

Sarah Maxwell, the administratrix of Kenneth’s estate, filed an action against Charles and Patricia Keas in which she alleged that the defendants had been negligent in failing to prevent their daughter from gaining access to alcohol when they knew or should have known that she was addicted to it. After the pleadings had been closed and discovery completed, the defendants moved for summary judgment. The trial court granted it, and plaintiff appealed. We affirm.

“A motion for summary judgment may be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law.” Kerns v. Methodist Hospital, 393 Pa.Super. 533, 536, 574 A.2d 1068, 1069 (1990). In determining whether summary judgment was properly granted, a reviewing court will examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. E.J.M. v. Archdiocese of Philadelphia, 424 Pa.Super. 449, 453, 622 A.2d 1388, 1390 (1993).

Liability cannot be imposed upon the defendantappellees merely because they are the parents of Kimberly. Condel v. Savo, 350 Pa. 350, 39 A.2d 51 (1944); In re Weiner, 176 Pa.Super. 255, 106 A.2d 915 (1954). Similarly, they are not liable merely because Kenneth met his death in their home while they were on vacation. Martinelli v. Peters, 413 Pa. 472, 198 A.2d 530 (1964). In order to impose liability upon the defendant-appellees, it must be shown that there existed a duty which they owed to appellant’s decedent and that this duty was breached and caused the decedent’s death. As the Supreme Court observed in Orner v. Mallick, 515 Pa. 132, 527 A.2d 521 (1987), a plaintiff must show:

the existence of a duty or obligation recognized by law; a failure on the part of the defendant to conform to that duty, or a breach thereof; a causal connection between the defendant’s breach and the resulting injury; and actual loss or damage suffered by the complainant.

Orner v. Mallick, supra at 135, 527 A.2d at 523. See also: Morena v. South Hills Health System, 501 Pa. 634, 642 n. 5, 462 A.2d 680, 684 n. 5 (1983). Where there is no duty of care, there can be no negligence. Zanine v. Gallagher, 345 Pa.Super. 119, 123, 497 A.2d 1332, 1334 (1985). The existence of a duty is predicated upon the relationship between the parties at a specific point in time; “if the parties are strangers, the scope of the duty not to place others at risk is limited to those risks which are reasonably foreseeable.” Burman v. Golay and Co., Inc., 420 Pa.Super. 209, 214, 616 A.2d 657, 659 (1992), allocatur denied, 533 Pa. 648, 624 A.2d 108 (1993). See also: Zanine v. Gallagher, supra at 123, 497 A.2d at 1334.

Here, there is no basis for imposing upon appellants a duty owed to an unanticipated visitor of their daughter, an adult person living in their home. Not only did they have no reason to anticipate the decedent’s presence in their home, but, in fact, Kimberly had been told that she was not to have visitors in the home while her parents were on vacation. The absence of a duty owed to Maxwell was not altered by virtue of the fact that the parents kept alcoholic beverages in their home.

Appellant argues, however, that appellees were social hosts and, therefore, liable for injuries inflicted by their daughter after she had illegally consumed alcoholic beverages which they kept in their home. Appellant relies on Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983) and its progeny. In Congini, the minor had been served alcoholic beverages by his employer at a Christmas party, became intoxicated and, after leaving the party, drove his vehicle into collision with another vehicle on a public highway. Reasoning that the employer was a social host, the Court held that the employer was “negligent per se in serving alcohol to the point of intoxication to a person less than twenty-one years of age, and ... liable for injuries proximately [caused by] the minor’s intoxication.” Congini v. Portersville Valve Co., supra at 162-163, 470 A.2d at 518 (footnotes omitted). In Orner v. Mallick, supra, the social host doctrine was applied where the defendant host had provided alcoholic beverages which she knew would be consumed by minors at a graduation party for her daughter.

However, in Alumni Ass’n, Delta Zeta Zeta of Lambda Chi Alpha Fraternity v. Sullivan, 524 Pa. 356, 572 A.2d 1209 (1990), where an 18 year old college student had openly consumed alcohol during a party hosted by the Kappa Chapter of Sigma Chi Fraternity, the Court held that neither the university nor the national fraternity could be held hable for fire damage caused by the student. Neither the university nor the national fraternity had actual knowledge that alcohol was being furnished to a minor. The “knowingly furnished” standard for social host liability, the Court said, “requires actual knowledge on the part of the social host as opposed to imputed knowledge imposed as a result of the relationship.” Id. at 364, 572 A.2d at 1212. The Court explained:

[T]here are no allegations that either the fraternity or the University was involved in the planning of these events or the serving, supplying, or purchasing of liquor. The fact that the functions were held on property which arguably was owned by [the fraternity] is of no consequence in light of [its] detachment from the events in question. Appellees’ conduct is insufficient to establish them as social hosts for the purpose of finding potential liability.

Id. at 364, 572 A.2d at 1213 (emphasis added).

Other jurisdictions have placed similar limitations on the potential liability of a social host. In Kellogg v. Ohler, 825 P.2d 1346 (Okla.1992), Larry Stogsdill, a minor, became intoxicated while visiting a home owned by James and Marion Ohler but occupied only by their son, Doug, and his friend, Robert Gross. After leaving the Ohler home, Stogsdill was involved in an automobile accident which caused the death of one person and seriously injured another. In affirming a summary judgment entered in favor of the homeowners, the Oklahoma Supreme Court said:

In order to be considered a social host, some degree of control is necessary. In Solberg v. Johnson, 306 Or. 484, 760 P.2d 867, 870 (1988), the Oregon Supreme Court defined a social host as “one who receives guests, whether friends or associates, in a social or commercial setting, in which the host serves or directs the serving of alcohol to guests.”
It is undisputed that the parents lived in Alabama, did not invite anyone to their Oklahoma home and did not furnish any alcohol to Stogsdill. In fact, both parents stated that they did not know of the gathering until much later. They had absolutely no control over the alcohol served nor the people who consumed it. As a matter of law the parents were not social hosts.

Id. 825 P.2d at 1348 (citations omitted). See also: Forrest v. Lorrigan, 833 P.2d 873 (Colo.App.1992).

In the instant case, the home owners were in Aruba on vacation. They did not receive or invite Maxwell into their home. Indeed, they had no reason even to anticipate his presence. They did not furnish alcohol for his consumption or authorize their adult daughter to do it on their behalf. On the contrary, the use of alcohol by their daughter and her furnishing alcohol to Maxwell were unauthorized and without the consent of the homeowners. In fact, Kimberly was not allowed to consume her parents’ alcohol and had been so instructed. It follows, under the circumstances of this case, that the parents cannot be deemed social hosts for purposes of imposing vicarious liability upon them.

Appellants also contend that the homeowners were negligent because they took inadequate precautions to prevent their daughter from invading their supply of alcoholic beverages and imbibing illegally in view of her alleged affinity for alcohol. Kimberly, however, was an adult person; and, therefore, a duty cannot readily be imposed upon her parents to provide continuous supervision and control over her daily conduct. This is especially so where, as here, there was no history of violent behavior or reason to anticipate such conduct.

In Alioto v. Marnell, 402 Mass. 36, 520 N.E.2d 1284 (1988), Michael Marnell, age 19, had held a party for fellow employees in the home of his parents. The parents knew he had a history of under age drinking and driving while under the influence of alcohol and that he intended to serve alcoholic beverages at the party. Therefore, they conditioned their consent to the party on Michael’s promise that he would not drive his car during or after the party. Michael consumed alcoholic beverages during his party and thereafter, while operating his car in an intoxicated condition, collided with another vehicle, killing the driver. An action was commenced against Michael’s parents on the grounds that they were negligent in failing to supervise the party hosted by Michael in their home; in failing to prevent Michael, a minor for purposes of consuming alcohol, from obtaining and consuming alcoholic beverages at the party; and in failing to prevent Michael from driving while under the influence of alcohol. In affirming the trial court’s grant of summary judgment in favor of the defendant-parents, the court stated as follows:

This is not a case involving social host liability____ Here, there were assertions that the defendants knew or should have known of their son’s propensity to drink and drive, because he previously had been involved in incidents involving drinking, and had lost his driver’s license for operating a motor vehicle while under the influence of alcohol____ [H]owever, at the time of this incident, Michael Marnell, although below the legal drinking age, was not a minor, but an adult. See G.L. c. 4, § 7, Forty-eighth & Fiftieth (1986 ed.) (defining the terms “Minor” and “Adult”). He had graduated from high school some seventeen months earlier, had been working full-time for at least fourteen months, and was in all relevant aspects emancipated from his parents. The fortuity of his living in their home does not create a duty where none otherwise exists; nor does their status as parents, without more, impose on the defendants the duty to supervise and control their emancipated adult son. See DePasquale v. Dello Russo, 349 Mass. 655, 659, 212 N.E.2d 237 (1965); Smith v. Jordan, 211 Mass. 269, 270, 97 N.E. 761 (1912).

Id. at 39, 520 N.E.2d at 1285-1286.

Similarly, in Reinert v. Dolezel, 147 Mich.App. 149, 383 N.W.2d 148 (1985), the court concluded that the defendant-parents were not negligent for failing to prevent their 18 year old son from consuming alcoholic beverages in their home. There, five young adults, each being at least 18 years of age save one, had purchased alcoholic beverages and consumed them in the home of David and Joan Dolezel. When the youths later decided to go to the home of another friend, two of the young adults decided to ride with David Dolezel, Jr.. During the drive, Dolezel’s car failed to negotiate a curve and crashed, as a result of which one passenger died and another was injured. An action was commenced against the Dolezel parents on the basis that they negligently had permitted minors to consume alcohol in their home. In finding that no such cause of action existed, the court stated:

Although plaintiff refers to the young people involved in this case as “minors”, they were not____ A person who is 18 years of age is deemed to be an adult of legal age for all purposes whatsoever and shall have the same duties, liabilities, responsibilities, rights and legal capacity as persons heretofore acquired at 21 years of age, notwithstanding any other provision of law to the contrary. These people were not minors; they were adults who were not old enough to drink alcoholic beverages legally. Any duty the parents had to supervise their child’s conduct ended when that child became an adult. To make homeowners civilly liable for illegal activity being conducted by adults in their home, of which the homeowners have no part, would be to break new ground in Michigan jurisprudence. The problem of teenagers who drink and drive is a serious one. But we know of no jurisdiction which imposes a duty upon homeowners to stop adults from illegally drinking in their home....
There is no duty to control the conduct of a third party so as to prevent him from causing physical harm to another unless a special relationship exists____ Parents are under a duty to exercise reasonable care to control their minor child, but this duty ends when the child becomes an adult, and that happens in Michigan at age 18.

Id. at 157, 383 N.W.2d at 151 (citations omitted).

Under the general principle of law set forth in Section 315 of the Restatement (Second) of Torts, there is no duty to control the conduct of a third person so as to prevent him or her from causing physical harm to another in the absence of a special relationship between the actor and the third person. In this case, the trial court properly concluded that there was no special relationship between the homeowners and either their daughter or her guest which was sufficient'to impose upon the homeowners a duty to control the conduct of their daughter so as to prevent her from killing her guest during an angry frenzy.

The order entering summary judgment is affirmed.

      . Kimberly’s 75 year old grandmother, who was also at home, had already retired for the night.

      . There was deposition testimony that both persons had been drinking before Kenneth arrived at the Keas’s home.

      . Kimberly entered a plea of guilty to murder of the third degree and is now serving a sentence of imprisonment.


source: Caselaw Access Project

author: ROWLEY, President Judge:

license: Public Domain

text:
    639 A.2d 1219
    Dennis J. WILSON, Administrator of the Estate of Suzanne Wilson, Deceased, for and on behalf of the Estate of Suzanne Wilson, Deceased, and on Behalf of the Next of Kin of Suzanne Wilson, Deceased, Appellant, v. Edwin S. KREMER, M.D., Raymond A. Halt, M.D., and Saint Vincent Health Center.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1993.
    Filed April 7, 1994.

      Thomas L. Cooper, Pittsburgh, for appellant.
    Francis J. Klemensic, Erie, for Kremer, appellee.
    Before ROWLEY, President Judge, and JOHNSON and BROSKY, JJ.
   ROWLEY, President Judge:

Dennis J. Wilson (hereinafter “appellant”) has filed this timely appeal from the trial court’s order granting a demurrer in favor of Edwin S. Kremer, Raymond A. Halt, and Saint Vincent Health Center (hereinafter “appellees”) as to the wrongful death claim pled in appellant’s second amended complaint. The issue before us is whether, or not the cause of action filed by appellant’s decedent for personal injuries can be amended to include a claim for wrongful death because she died before resolution of that suit? We are constrained to conclude, as did the trial court that it may not be so amended. We therefore affirm.

As stated by the trial court in its well-reasoned opinion:

On May 19, 1991, Suzanne and Dennis J. Wilson filed a complaint against [appellees] alleging negligence in their diagnosis and treatment of Mrs. Wilson for carcinoma of the right breast. Thereafter, appellees filed preliminary objections to the complaint which resulted in an order for more specific pleadings. The order directing a more specific pleading was issued on March 30, 1992. Seven months later, in October of 1992, plaintiffs filed an amended complaint. Preliminary objections were filed against the amended complaint on the basis that Mrs. Wilson passed away in April of 1992, and therefore, she lacked the requisite capacity to sue. Prior to argument on the second set of preliminary objections, [appellant] filed a second amended complaint. The second amended complaint named [appellant] as the Administrator of the Estate of Suzanne Wilson, for an[d] on behalf of the decedent’s estate, and as next of kin of the decedent plaintiff. The second amended complaint sets forth causes of action under the Survival Act and the Wrongful Death Act, 42 Pa.C.S.A. § 8802 and § 8301, respectively. A third set of preliminary objections were filed on the basis that the second amended complaint failed to conform to Pa.R.C.P. 2201, et seq, a cause of action under the Survival Act was barred by the applicable statute of limitations, and a cause of action under the Wrongful Death statute was barred by the decedent’s lifetime action. Argument was held before th[e trial] court on May 3, 1993.

(Trial Court Opinion, 6/28/93, p. 2). The trial court then granted appellees’ preliminary objections in the nature of a demurrer as to appellant’s wrongful death claim because the decedent had brought a suit for personal injuries against appellees during her lifetime.

Initially, we note that in reviewing an order sustaining preliminary objections in the nature of a demurrer, “we must accept as true every relevant fact sufficiently averred in the [appellant’s] complaint together with every inference favorable to the non-moving party which is fairly deducible therefrom.” Ganassi v. Buchanan Ingersoll, P.C., 373 Pa.Super. 9, 11, 540 A.2d 272, 273 (1988). “The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible____ “Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.” McMullin v. Dallago, 353 Pa.Super. 527, 530, 510 A.2d 787, 789 (1986).

Section 8301 of Title 42 deals with wrongful death actions, and provides in pertinent part, as follows:

(a) General rule. — An action may be brought, under procedures prescribed by general rules, to recover damages for the death of an individual caused by the wrongful death or neglect or unlawful violence or negligence of another if no action for damages was brought by the injured individual during his lifetime.

42 Pa.C.S.A. § 8301(a). (emphasis added).

Furthermore:

[c]ourts have strictly construed this statute to mean that if a suit for personal injuries is brought by the person injured during his lifetime, no other action of any kind is maintainable even though he subsequently dies of his injuries. Pezzulli v. D'Ambrosia, 344 Pa. 643, 26 A.2d 659 (1942). We believe this law is controlling and that the current action must be dismissed. Id. at 602.

Dauer v. Armstrong World Industries, 390 Pa.Super. 586, 589, 568 A.2d 1327, 1329 (1990). (emphasis added).

Appellant strenuously contends that the wrongful death statute is inapplicable to the facts of the instant case because its aim is “... to prevent the injustice of calling upon a defendant to respond twice in damages for the same negligent act.” Dauer, supra, at 590, 568 A.2d at 1329. Appellant claims that appellees are not being called upon twice to pay damages for one negligent act in the instant case because the original plaintiff died before she could recover damages from appellees. Thus, appellant urges us to conclude that he should be permitted to amend the complaint to include a wrongful death action.

Contrary to appellant’s arguments, however, we must reiterate that, pursuant to the plain meaning of the subject statute, “§ 8301 does not permit a plaintiff to proceed in an action for wrongful death against parties who were defendants in the decedent’s lifetime action for damages.” Id. In the instant case, appellees were defendants in the decedent’s lifetime action for damages, and thus appellant is precluded from proceeding against them in a wrongful death cause of action. Although appellant makes a compelling policy argument in support of his contention, it is to the General Assembly of Pennsylvania that he must look for relief from what is a clear and unambiguous statement of Legislative intent. Therefore, we affirm the trial court’s order dismissing the wrongful death claim from appellant’s complaint.

Order affirmed.

      . However, the trial court overruled appellee's preliminary objections as to the survival action. In so doing, it concluded, quite properly, that "[t]he substitution of Mr. Wilson as the decedent’s personal representative cured the defect of the amended complaint. The substitution merely allows for the continuation of the cause of action which accrued prior to Mrs. Wilson’s death.” (Trial Court Opinion, 6/28/93, p. 3). We find this to be proper pursuant to 42 Pa.C.S.A. § 8302 and this Court’s recent en banc decision in Baumgart v. Keene Building Products Corp., 430 Pa.Super. 162, 633 A.2d 1189 (1993).
      In Baumgart, we stated that: “[i]f a person is injured by the act of another, a cause of action may accrue to the injured person. His or her death thereafter does not abate the cause of action. Pursuant to 42 Pa.C.S.A. § 8302, the cause of action survives the death of the injured person and continues in the decedent's personal representative. The damages recoverable are measured by the pecuniary loss occasioned to the injured person, and therefore his or her estate, by the negligent act which caused death.” Id., 430 Pa.Super. at 166, 633 A.2d at 1191. In the instant case, Mrs. Wilson’s cause of action, sounding in negligence, brought against appellees before her death will continue in her absence with appellant as her personal representative.

      . See also Walker v. Roney, 407 Pa.Super. 620, 595 A.2d 1318 (1991), appeal denied, 529 Pa. 658, 604 A.2d 250 (1992), where this court concluded, after comparing the language utilized in sections 8301 and 8302, that "the legislature intended to bar wrongful death claims where the decedent filed a lifetime action, but did not intend such a bar to operate against survival actions.” Id., 407 Pa.Super. at 623, 595 A.2d at 1320.


author: TAMILIA, Judge:

text:
    639 A.2d 1222
    COMMONWEALTH of Pennsylvania, v. David Richard McCLINTOCK a/k/a David McClintock a/k/a David R. McClintock, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 28, 1994.
    Filed April 7, 1994.

      Shelley Stark, Public Defender, Pittsburgh, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before OLSZEWSKI, TAMILIA and POPOVICH, JJ.
   TAMILIA, Judge:

David R. McClintock appeals from the October 13, 1992, fifty-seven (57) to one hundred fourteen (114) month judgment of sentence imposed after he was found guilty, nonjury, of one count each of luring a child into a motor vehicle and interfering with child custody and two counts of criminal attempt to lure a child into his vehicle. The charges stemmed from appellant’s repeated attempts to abduct young, black children walking to and from school.

Appellant argues the evidence presented was insufficient to support his convictions of attempting to lure victims Charles Ransom and Keva Johnson into his car. Appellant contends his hand motions toward the children, which he characterized as “waves”, did not constitute the “substantial step” necessary toward the commission of the crime of attempting to lure the children into his ear.

When reviewing a challenge to the sufficiency of the evidence, this Court must “accept all evidence and all reasonable inferences therefrom, upon which the fact-finder could have based the verdict, in order to determine whether the Commonwealth’s evidence was legally sufficient to support the verdict.” Commonwealth v. Cody, 401 Pa.Super. 85, 88, 584 A.2d 992, 993 (1991). The Commonwealth may meet its burden by proving every element of the crime(s), beyond a reasonable doubt, by means of direct or circumstantial evidence, provided it links the defendant to the crime beyond a reasonable doubt. See Commonwealth v. Williams, 532 Pa. 265, 615 A.2d 716 (1992); Commonwealth v. McCullum, 529 Pa. 117, 602 A.2d 313 (1992). The two elements necessary to sustain a conviction for the crime of attempt are intent to commit a crime and any act constituting a substantial step toward completion of the offense. Commonwealth v. Henley, 504 Pa. 408, 474 A.2d 1115 (1984); Commonwealth v. Edwards, 399 Pa.Super. 545, 582 A.2d 1078 (1990), appeal denied, 529 Pa. 640, 600 A.2d 1258 (1991). The relatively recently enacted crime of luring a child into one’s vehicle is defined as:

A person who lures a child into a motor vehicle without the consent, express or implied, of the child’s parent or guardian, unless the circumstances reasonably indicate that the child is in need of assistance, commits a misdemeanor of the first degree.

18 Pa.C.S. § 2910. Finally, the determination of the credibility of a witness is within the sole province of the fact-finder who may believe none, some or all of the testimony, and whose credibility determination will not be disturbed on appeal absent a clear abuse of discretion or error of law. Commonwealth v. Melvin, 392 Pa.Super. 224, 572 A.2d 773 (1990).

Charles Ransom, the son of a police officer and 12 years old at the time of the incident, testified he was walking to school with a friend, Victor Johnson, when he noticed a brown vehicle with a beige vinyl roof drive past them repeatedly. He stated he got a good look at the driver and described him as a white male, in his 40’s, with brown hair, gray at the temples and brown eyes. As he and Johnson stood outside their school, the boys saw the same car and driver ride up and down the street, four or five more times. At one point the car stopped at the curb, approximately ten feet from Ransom, the boy leaned to look into the car and the driver waived or motioned three or four times for him to “come here.” At this point, the boys walked swiftly into the school, informed school authorities of what had transpired and the police were called. Having been schooled by his father regarding what to do in just such a situation, Ransom had memorized the license plate number and provided the police with that information as well as a description of the car and an identification of the driver.

The other child, Keva Johnson, also then age 12, testified appellant accosted her in much the same way he stalked Charles Ransom. Johnson testified that as she was walking to her bus stop, she noticed appellant very slowly driving his car around the block. She was able to make this identification because for months prior to this day she had seen appellant driving near the route she took from home to her bus stop. On this day, as she approached the bus stop, she noticed appellant staring at her and, when he caught her eye, appellant stopped his car ten feet away and motioned for Keva to “come here.” Johnson testified she ran away quickly but “he chased after [her]” until she encountered some school friends and her bus arrived (N.T., 3-26, 27-92, p. 201). Like Ransom, Johnson reported the incident to school authorities and police and was able to identify appellant and his vehicle.

The trial judge found the children’s testimony credible. We have no basis to rule otherwise. The testimony and evidence presented, both direct and circumstantial, were sufficient upon which to find appellant guilty of attempting to lure Ransom and Johnson into his vehicle.

Next, appellant contends the evidence was also insufficient to sustain his conviction for interference with the custody of Brandon Bennett. Appellant bases his argument on the facts eight year old Brandon was in his car only momentarily and appellant is not a member of the class to which the statute is directed (estranged parents). We address this issue bearing in mind the standard of review set forth supra.

Brandon Bennett testified he was walking to school when a brown car stopped next to him and the driver, the appellant, asked him where a certain store was located. Brandon told appellant, but he insisted Brandon get into the car and show him where the store was located. Unfortunately Brandon complied, but fortuitously a grandmother, who escorted her grandchildren to school daily, recognized appellant’s car as a suspicious vehicle she had observed repeatedly over the previous two weeks cruising the streets near the elementary school. While driving from a shopping trip, she witnessed Brandon’s attempted abduction and blew her horn relentlessly until appellant reached over to the passenger door and opened it so Brandon could get out. Brandon identified appellant as the driver of the car. The time Brandon was in appellant’s car was estimated to be between one and five minutes.

An individual will be found guilty of interfering with child custody if he "... knowingly or recklessly takes or entices any child under the age of 18 years from the custody of its parent, guardian or other lawful custodian, when he has no privilege to do so.” 18 Pa.C.S. § 2904. While recognizing this statute was enacted with a focus toward parental kidnapping, see Commonwealth v. Rodgers, 410 Pa.Super. 341, 599 A.2d 1329 (1991), we find it is not beyond the trial court’s scope of authority or ours to extend the purview of this statute to protect children from unlawful taking by individuals who are not necessarily their parents, custodians or guardians. See Id., citing Commonwealth v. Thrush, 23 D. & C.3d 302 (1980) (Uncle found guilty of interference with the custody of his niece whom he took from school on the pretense of a doctor appointment). Moreover, the wording of the statute itself clearly supports the contention its scope was designed to extend to actors other than parents.

(b) Defenses. — It is a defense that:
(1) the actor believed that his action was necessary to preserve the child from danger to its welfare; or
(2) the child, being at the time not less than 14 years old, was taken away at its own instigation without enticement and without purpose to commit a criminal offense with or against the child; or
(3) the actor is the child’s parent or guardian or other lawful custodian and is not acting contrary to an order entered by a court of competent jurisdiction.
(c) Grading. — The offense is a misdemeanor of the second degree unless the actor, not being a parent or person in equivalent relation to the child, acted with knowledge that his conduct would cause serious alarm for the safety of the child, or in reckless disregard of a likelihood of causing such alarm, in which case the offense is a misdemeanor of the first degree.

18 Pa.C.S. § 2904(b), (c) (emphasis added). The underlined clauses definitively indicate, by specifically referring to actors other than parents, the statute was to include in its scope perpetrators other than disgruntled parents. The evidence supports the trial court’s finding “... while [the statute] was designed to ensure the protection of parents and children from the interference by third parties, whether related or not, it was not envisioned to protect a kidnapper.” (Slip Op., Cashman, J., 9/24/93, p. 15.) On this basis, we find appellant’s argument challenging his conviction for interfering with child custody devoid of merit.

Appellant’s next two issues challenge evidentiary rulings made by the trial court. First, appellant contends the court erred by admitting photographs of his car without first requiring the Commonwealth to establish the pictures indeed depicted the appellant’s vehicle. Secondly, appellant alleges impermissible hearsay testimony was allowed to establish the license plate number recited by the victims was registered to the appellant.

A judge has broad discretion concerning the conduct of a trial and particularly with regard to the admission or exclusion of evidence. Commonwealth v. Davis, 394 Pa.Super. 591, 576 A.2d 1005 (1990). Generally, evidence is admissible if it is relevant, i.e., it must tend to prove or disprove a material fact in issue, tend to make such a fact more or less probable, or afford the basis or support for a reasonable inference regarding the existence of a material fact. Commonwealth v. Dietterick, 429 Pa.Super. 180, 631 A.2d 1347 (1993); Commonwealth v. Ingram, 404 Pa.Super. 560, 591 A.2d 734 (1991). This standard applies equally to the admissibility of photographs. Commonwealth v. Dennis, 313 Pa.Super. 415, 460 A.2d 255 (1983). A photo must, however, be verified by either the person who took it or one sufficiently knowledgeable to testify the picture accurately represents the object depicted as it existed at the time of the event in question. Commonwealth v. Long, 425 Pa.Super. 170, 624 A.2d 200 (1993). Finally, the admissibility of photographs is a matter within the discretion of the trial court whose decision will not be disturbed absent an abuse of discretion. Id.

Detective Frank Varlotta testified that during the course of his investigation of the appellant, he confirmed a license plate number provided to him by one of the victims as that belonging to the appellant and thereafter photographed appellant’s car for the purpose of having the victims and witnesses identify the car as the one used in the commission of the crimes. These photos were subsequently shown to the victims who testified the car in the pictures looked like the one driven by the man who had accosted them. Victim Charles Ransom also verified the vehicle’s license plate. The trial court found this testimony sufficient to authenticate the photos, and we find no basis upon which to rule the court abused its discretion. The photos did not buttress inconsistent witness testimony as alleged by appellant, but rather served as circumstantial evidence which, when combined with direct evidence, tended to identify appellant as the driver of the car at the time of the incidents. By reviewing the cumulative testimony of Detective Varlotta as well as the record in its entirety, we find the reliability and authenticity of the photos were established and the trial court did not err by allowing their admission into evidence.

Allowing Detective Varlotta to testify the license plate identified by the victims was registered to appellant “stated the obvious and was in no way prejudicial to McClintock.” (Slip Op. at 9.) The admission of this hearsay evidence was evaluated, in context, by the fact-finder along with all other evidence of record and found not to be reversible error.

Lastly, appellant argues the statute luring a child into a motor vehicle, set forth above, is constitutionally unsound as it does not adequately and fairly apprise an individual of prohibited conduct and can, because of its vagueness, be arbitrarily and discriminatorily enforced. In particular, appellant challenges the precision of the word “lure” and alleges it is fraught with ambiguity because it is not statutorily defined.

A criminal statute must be sufficiently certain and definite to inform the accused of the acts it intends to prohibit and the penalties which will be imposed should the statute be violated. Commonwealth v. Boyle, 533 Pa. 360, 625 A.2d 616 (1993). A statute may be unconstitutionally vague, and therefore void, if it describes conduct in terms so ambiguous persons of reasonable intelligence might differ as to what is actually prohibited, Commonwealth v. Stein, 519 Pa. 137, 546 A.2d 36 (1988), cert. denied, 490 U.S. 1046, 109 S.Ct. 1953, 104 L.Ed.2d 422 (1989), Commonwealth v. Smallhoover, 389 Pa.Super 575, 567 A.2d 1055 (1989). A statute which fails to give a person of ordinary intelligence fair notice his contemplated conduct is forbidden or is so indefinite as to encourage arbitrary and erratic arrests and convictions is void for vagueness as a matter of due process. Stein, supra. Vagueness is a matter of law to be determined from the face of the statute itself. Id.

“The conduct [the statute] has proscribed is specific in nature and identifies for any observer the interests that the Commonwealth is seeking to protect” (Slip Op. at 17). Further, appellant answers his own challenge to the word “lure” by equating it with “the power to attract or entice” (appellant’s brief at p. 29). Resorting to standard dictionaries for definition of words in common usage without unique legal connotations is common practice. In Webster’s Ninth New College Dictionary, Merriam-Webster Inc., Publishers Copyright 1984, “lure” is described at page 710: “Lure implies a drawing into danger, evil or difficulty, through attracting and deceiving.” No more specific legal definition could be applied to the wording of this statute and such an understanding of the term is universally accepted. Lastly, the statute contains a clearly ascertainable standard which does not even peripherally implicate rights protected by the first amendment. Appellant’s conduct fell squarely within proscribed behavior which the legislature sought to prevent and punish. Accordingly, appellant’s constitutional challenge is without merit.

Having found each of appellant’s arguments devoid of merit, we affirm the judgement of sentence imposed October 13, 1992.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 2910.

      . Id., § 2904.

      . Id., § 901.

      . Appellant was charged at three separate complaints with crimes against children, demonstrating a common scheme, plan or pattern. Accordingly, the Commonwealth's motion to consolidate the cases for trial was granted.

      . Appellant does not admit in his brief he was the driver to whom the children referred and, therefore, does not argue in the first person but rather the third person.

      . The record indicates Varlotta or someone with the Sex Assault section of the Pittsburgh City Police Department took the actual photos of the car.


author: HESTER, Judge:

text:
    639 A.2d 1227
    Kathleen GRUNDE and Arno Grunde, v. Denise HUFF, M.D., Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 29, 1993.
    Filed April 7, 1994.

      Kevin H. Wright, Plymouth Meeting, for appellant.
    Henry B. Fitzpatrick, Philadelphia, for appellee.
    Before BECK, TAMILIA and HESTER, JJ.
   HESTER, Judge:

The conduct in this case demonstrates the type of legal maneuvering which suggests to the public that lawyers are akin to combat infantrymen operating in a battle zone engaging in hand-to-hand combat. From the filing of this lawsuit and its eleventh hour discontinuance, to the scheduling of discovery and the refusal to accommodate reasonable requests, to the conduct of the attorneys at the deposition of the defendant, the key word here is unprofessional. As an aid to understanding the issues, we have set forth an extensive narrative of the facts and procedural history. For the reasons which follow, we reverse.

On September 1, 1990, plaintiff-appellee Kathleen Grunde sought medical treatment from defendant-appellant Dr. Denise Huff of Pediatric Medical Associates for appellee’s then seventeen-month-old daughter, Eileen. Dr. Huff described the child’s left leg as extremely bruised and swollen from the foot to the knee. In fact, the color was so bad the doctor was concerned about the vascular supply to the leg. Since Dr. Huff immediately recognized that the child’s leg was severely fractured by looking at it, she referred Mrs. Grunde to Children’s Hospital in Philadelphia. An orthopedic surgeon at Children’s Hospital diagnosed a “crush” fracture to the fibula and tibia at the growth plate.

In her deposition, Dr. Huff stated that Mrs. Grunde, uncertain as to how the injury happened, opined that the child may have caught her leg between the crib bars. Dr. Huff also stated that Mrs. Grunde told a nurse at Pediatric Medical Associates that she had dropped the child at Sesame Place. The orthopedic surgeon at Children’s Hospital told Dr. Huff that Mrs. Grunde had stated that the child may have been injured on a ride at Sesame Place. Based on the differing explanations for this young child’s severe injury, Dr. Huff concluded that she was obligated to report the child’s injury pursuant to the Child Protective Services Law, 23 Pa.C.S. § 6311, which she did on September 11, 1990.

Notwithstanding 23 Pa.C.S. § 6318, the child’s parents, Kathleen and Arno Grunde, appellees, hereinafter referred to as parents, filed a complaint on December 17, 1990, against Dr. Huff asserting causes of action for defamation, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence. The complaint was served on Dr. Huff on January 3,1991. On January 21,1991, parents served a notice of deposition upon Dr. Huff which was scheduled for January 29, 1991. On January 23, 1991, parents’ counsel received a letter from counsel for Dr. Huff stating that Dr. Huff would not attend the deposition on January 29 for the following reasons: 1) the notice of deposition had been served fewer than thirty days following the service of the complaint, thus leave of court was required pursuant to Pa.R.C.P. 4007.-2(b), 2) five business days notice was not reasonable notice as required by Pa.R.C.P. 4007.1(a), and 3) counsel was listed on the jury trial list at that time and likely would be engaged in a jury trial.

Parents’ counsel wasted no time in firing back a letter the following day in which he responded that leave of court to take Dr. Huff’s deposition was not required since Dr. Huff had served interrogatories on the plaintiffs; therefore, they had “otherwise sought discovery” thereby negating the requirement of obtaining leave of court. Counsel stated that he would “expect your client to be present for the deposition at the appointed time and place____” Reproduced Record (“R.R.”) at 9a.

Notwithstanding Dr. Huff’s notice that she could not be present for the deposition on the scheduled day, parents’ counsel allegedly spent twelve hours preparing for the deposition and attended at the appointed date and time, waiting for three hours. Then, the next day, parents filed a petition for contempt and to compel attendance at deposition in which they requested that a fine be imposed and sanctions awarded in the form of counsel fees “for the time reasonably expended by counsel” and that Dr. Huff be ordered to appear for her deposition at a time and place convenient to plaintiffs within twenty days of entry of the order. R.R. at 14a. The court denied the petition on March 20, 1991.

Parents filed a petition for reconsideration or for a hearing on March 25, 1991. On July 22, 1991, the trial court filed the following order:

AND NOW, this 19th day of July, 1991, upon consideration of Plaintiffs’ Petition for Reconsideration or For a Hearing, it is hereby ORDERED and DECREED that the Court’s March 20, 1991 Order is vacated, and that Defendant Denise Huff, M.D. is to submit to a deposition at a time and place convenient to plaintiffs not later than twenty (20) days from the date hereof, to pay a fine in the amount of $5,000.00 and to pay reasonable expenses, including counsel fees, incurred by plaintiffs as a result of her failure and the failure of the custodian of records to attend their January 29, 1991 deposition.

R.R. at 85a. By order dated August 5, 1991, and filed August 14, 1991, upon learning that Dr. Huffs deposition had taken place and upon being informed that the July 19, 1991 order mistakenly had omitted the word “or,” the Honorable Anthony Semeraro corrected the July 19, 1991 order as follows: “not later than twenty (20) days from the date hereof, or to pay a fine in the amount of $5,000,00.” The August 14, 1991 order also noted that Dr. Huffs appearance at deposition had been satisfied.

Parents filed a petition to confirm amount of counsel fees on August 2, 1991, requesting fees in the amount of $8,660.00 for the failure of Dr. Huff and the custodian of records to attend the January 29, 1991 deposition, and Dr. Huff replied. A hearing was held before Judge Semeraro on September 17, 1991, at which time the trial court directed the parties to file briefs. On May 27, 1992, another judge, the Honorable Kenneth A. Clouse, entered an order pursuant to the July 19,1991 order and granted counsel fees to parents in the amount of $4,425.00 representing eighteen hours of legal work at $175.00 per hour and 10.2 hours at $125.00 per hour. Trial court opinion, 9/2/93 at 4.

On July 1, 1992, parents filed another petition for contempt alleging that Dr. Huff had failed to comply with the court’s order of May 27, 1992, by refusing to pay counsel fees. Dr. Huff responded, but the court never ruled upon the matter.

A pretrial conference was held the week before trial was to begin. At the call of the list the following week, on May 3, 1993, counsel for Dr. Huff learned that unbeknownst to him, parents had filed a praecipe to discontinue without prejudice on April 27, 1993. On May 17, 1993, counsel for Dr. Huff twice wrote to the trial court requesting that an order terminating the litigation be entered since the praecipe to discontinue was not a final order, and he wished to file an appeal. R.R. at 162a-65a. In those letters, counsel suggested that the court utilize May 3, 1993, the date counsel attended the call of the list and was informed by the trial court that parents had praeciped to discontinue. While waiting for the requested order, appellant attempted to file a notice of appeal on June 1, 1993, but it allegedly was refused by the Office of Judicial Support because no final order had been entered on the docket. Therefore, on June 10,1993, defendant-appellant filed a praecipe for an adverse order. Finally, on that day, in response to counsel’s praecipe, the court entered the following order:

AND NOW, this 10th day of June, 1993, upon consideration of the Praecipe of plaintiffs’ attorney to discontinue the above-captioned matter, and any response thereto, that request is granted and the Office of Judicial Support shall enter an Order dated May 3,1993, indicating the matter has been discontinued.

Dr. Huff filed a notice of appeal the following day.

The trial court asserts that the appeal to this court should be quashed as untimely. Unfortunately, the court’s reasons are unclear. On one hand, the court declares that the “entry” date of an order, not the “issuance” date is the pivotal date for purposes of calculating the timeliness of an appeal. In support, it cites Leckey v. Aetna Casualty and Surety Co., 404 Pa.Super. 323, 590 A.2d 1255 (1991). Our review of that case supports the timeliness of the appeal in the instant case, not the reverse. In Leckey, the plaintiff perfected her appeal on the thirty-first day following the trial court’s June 1, 1990 order. However, while the court “issued” the order on June 1, the prothonotary did not “enter” it on the docket until June 4, 1990. Thus, we held that June 4, 1990, was “the pivotal time-frame looked to in this jurisdiction to calculate the timeliness of an appeal.” Id., 404 Pa.Super. at 329, 590 A.2d at 1258. Applying Leckey to the facts of this case, the relevant date obviously is June 10, 1993, not May 3, 1993. Any other result would be unjust. See also Clinger v. Tilley, 423 Pa.Super. 121, 620 A.2d 529 (1993) (date on which order is entered is date on which the order is filed with the prothonotary).

On the other hand, the trial court follows its citation to Leckey with the following statement: “An appeal of a contempt order will be quashed as untimely, where it has been filed more than thirty (30) days after the order was entered.” Trial court opinion, 9/2/93, at 6. If, by that statement, the trial court is suggesting either that the July 19, 1991 order awarding counsel fees for Dr. Huffs failure to attend the January 29, 1991 deposition, or the May 27, 1992 order confirming fees in the amount of $4,425.00 is the order from which the appeal should lie, again the court is mistaken. In West v. Andersen, 426 Pa.Super. 127, 626 A.2d 606 (1993), we addressed whether the appeal from an order awarding counsel fees to the defendant for the failure of the plaintiffs to be deposed is a final order. We quashed the appeal and held that the order of counsel fees was not a final, appealable order as it was completely collateral to the underlying medical malpractice action, and litigation on the action would continue after the discovery sanction. West clearly is on all fours with the present case. Thus, we hold that the instant appeal is timely.

Appellant raises issues questioning the propriety, severity, and appropriateness of the orders awarding attorney fees. We note initially that the imposition and choice of sanctions for noncompliance with discovery under Pa.R.C.P. 4019 is within the discretion of the trial court. The rule requires the court to select a punishment that fits the crime. Weist v. Atlantic Richfield Company, 374 Pa.Super. 405, 543 A.2d 142 (1988). Thus, we review the. award for an abuse of discretion.

As stated above, parents filed a petition for contempt in which they requested sanctions. Clearly, there was no order entered holding Dr. Huff in contempt nor, in our view, could there have been. Our review of the record makes clear that parents sought sanctions pursuant to Pa.R.C.P. 4019. Without a doubt, the trial court failed to consider the necessary factors when a discovery sanction is imposed. Pride Contracting, Inc. v. Biehn Construction, Inc., 381 Pa.Super. 155, 553 A.2d 82 (1989).

We discussed these factors in Steinfurth v. LaManna, 404 Pa.Super. 384, 389, 590 A.2d 1286, 1288-89 (1991) (citations omitted):

We first examine the party’s failure in light of the prejudice caused to the opposing party and whether the prejudice can be cured. A second factor to be examined in reviewing a sanction is the defaulting party’s willfulness or bad faith in failing to comply with the discovery order, i.e., the merits of their excuse. Third, we consider the number of discovery violations. Repeated discovery abuses are disapproved. Finally, as noted above, the importance of the precluded evidence in light of the failure must be considered.

In the present case, all factors militate against the imposition of the sanction. There was no failure to comply with previous orders. In fact, in this instance there was no order compelling the deposition. Further, there was no showing of willfulness or bad faith. Finally, parents suffered no prejudice.

The timing of the scheduling of this deposition and the refusal to make accommodations when this case was in its initial stages militate against the imposition of sanctions. The complaint had just been served on the defendant on January 3, 1991, and service was docketed on January 11, 1991. The notice of deposition was forwarded on January 21,1991, which was a federal holiday, the celebration of Martin Luther King Day, for a deposition scheduled five business days later. Counsel for Dr. Huff replied that his client was not given reasonable notice of the deposition pursuant to Pa.R.C.P. 4007.1. Moreover, counsel asserted that he believed, in reliance upon Pa.R.C.P. 4007.2, that a deposition scheduled within thirty days of service of the complaint, under the circumstances, required leave of court. Finally, counsel for Dr. Huff noted that he believed he would be involved in a jury trial on the date noticed. Unbelievably, after learning this, parents’ counsel spent twelve hours preparing for the deposition and appeared at the appointed time and waited three hours.

We believe that Steinfurth requires that we reverse the imposition of sanctions in this case. Moreover, the trial court’s imposition of counsel fees without violation of a court order was an abuse of discretion in light of the mandatory balancing of prejudice which should have been conducted by the trial court before imposing sanctions.

Order awarding counsel fees is reversed.

      . 23 Pa.C.S. § 6311 provides, in pertinent part,
      (a) General rule. — Persons who, in the course of their employment, occupation or practice of their profession, come into contact with children shall report or cause a report to be made ... when they have reason to believe, on the basis of their medical, professional or other training and experience, that a child coming before them in their professional or official capacity is an abused child.
      (b) Enumeration of persons required to report. — Persons required to report under subsection (a) include, but are not limited to, any licensed physician____

      . 23 Pa.C.S. § 6318 provides, in pertinent part,
      § 6318. Immunity from liability
      (a) General rule. — A person ... participating in good faith in the making of a report ... shall have immunity from any civil or criminal liability that might otherwise result by reason of those actions.

      . The comment to Rule 4019, in stating that the 1978 amendments to the rule deleted the word "willfully” in subdivision (a), notes that willfulness remains a factor in determining the extent of the sanction but no longer is an essential condition precedent to the power to impose a sanction.


author: SAYLOR, Judge: WIEAND, Judge,

text:
    639 A.2d 1231
    Carol H. McGETTIGAN, Appellee, v. James E. McGETTIGAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 18, 1994.
    Filed April 8, 1994.

      Edwin M. Matzkin, Philadelphia, for appellant.
    Sue N. Lang, Levittown, for appellee (Submitted).
    Before WIEAND, HUDOCK and SAYLOR, JJ.
   SAYLOR, Judge:

This appeal involves an award of the costs of a daughter’s postsecondary education against a divorced parent and requires us to apply the provisions of Act No. 62 of 1993, which became effective on July 2, 1993.

James McGettigan (“Father”) has appealed from an Order of the Court of Common Pleas of Bucks County dated July 14, 1993, which required him to pay $131.00 per week for the support of his daughter, Danielle (“Daughter”), toward the costs of her postsecondary education. Father appeals such order, contending that the court abused its discretion in awarding postsecondary educational costs due to the estrangement between Father and Daughter and, in the alternative, contending that the trial court abused its discretion in fixing the level of support payable to Daughter.

In Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992), the Supreme Court overruled a line of Superior Court cases which had held that under certain circumstances an order of support could be entered against a parent for the support of a child attending college. The Supreme Court held that the common law duty of a parent to support a child ceases when the child reaches eighteen years of age or graduates from high school, whichever occurs later. Since no legal duty to provide college educational support had at that time been imposed by our legislature, the Supreme Court declined to create such a duty, believing that “the more prudent course is to await guidance from that body....” 532 Pa. at 529, 616 A.2d at 632.

In response to the Blue case and its invitation, the Pennsylvania legislature enacted 23 Pa.C.S. § 4327 as a part of Act No. 62 of 1993, P.L. 431, effective July 2, 1993 (“the statute”). Section 4327 provides as follows:

Where applicable under this section, a court may order either or both parents who are separated, divorced, unmarried or otherwise subject to an existing support obligation to provide equitably for educational costs of their child whether an application for this support is made before or after the child has reached 18 years of age. The responsibility to provide for postseeondary educational expenses is a shared responsibility between both parents. The duty of a parent to provide a postseeondary education for a child is not as exacting a requirement as the duty to provide food, clothing and shelter for a child of tender years unable to support himself. This authority shall extend to postseeondary education, including periods of undergraduate or vocational education after the child graduates from high school. An award for postseeondary educational costs may be entered only after the child or student has made reasonable efforts to apply for scholarships, grants and work-study assistance.

In its preamble to Act No. 62, the legislature indicated that it intended, in enacting 23 Pa.C.S. § 4327, “to codify the decision of the Superior Court in the case of Ulmer v. Sommerville, 200 Pa.Super. 640, 190 A.2d 182 (1963) and the subsequent line of cases interpreting Ulmer prior to the decision of the Pennsylvania Supreme Court in Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992), decided on November 13, 1992.”

The statute, by its terms, is applicable to all support orders entered since November 12, 1992, 23 Pa.C.S. § 4327(i)(1), and all actions for support pending upon its effective date. 23 Pa.C.S. § 4327(i)(2). Thus, the statute is applicable to this proceeding, since the order appealed from was entered on July 14, 1993.

The statute provides that in making an award for the costs of a postseeondary education, the court shall first calculate educational costs, which are defined to be “tuition, fees, books, room, board and other educational materials.” 23 Pa.C.S. § 4327(j). The court shall next deduct from the educational costs all grants and scholarships awarded to the student. 23 Pa.C.S. § 4327(d). However, an award for postsecondary educational costs may be entered only after the child or student has made reasonable efforts to apply for scholarships, grants and work-study assistance. 23 Pa.C.S. § 4327(a).

After calculating educational costs, and deducting grants and scholarships, the court may then order either or both parents to pay all or part of the remaining educational costs of their child. In making such an award,°the court is directed by the statute to consider all relevant factors which appear “reasonable, equitable and necessary,” including the following:

1. The financial resources of both parents.
2. The financial resources of the student.
3. The receipt of educational loans and other financial assistance by the student.
4. The ability, willingness and desire of the student to pursue and complete the course of study.
5. Any willful estrangement between parent and student caused by the student after attaining majority.
6. The ability of the student to contribute to the student’s expenses through gainful employment. The student’s history of employment is material under this paragraph.
7. Any other relevant factors.

23 Pa.C.S. § 4327(e).

The statute further provides that support for educational costs shall not be ordered if: (1) undue financial hardship would result to the parent; (2) the educational costs would be a contribution for postcollege graduate educational costs; (3) the order would extend support for the student beyond the student’s twenty-third birthday, absent exceptional circumstances. 23 Pa.C.S. § 4327(f).

Turning now to the issues raised by Father in this appeal, we adopt as our standard of review of orders entered pursuant to the statute, one of an abuse of discretion, taking our lead from the Supreme Court in its Blue decision. Although the Blue case found no common law duty to provide postsecondary educational support, it indicated that the “scope of review in a typical support matter is whether the trial court has abused its discretion” and indicated that

[e]ven though this appeal does not present a typical support matter, we see no reason for adopting a different scope of review. In essence, we are reviewing an order requiring a parent to provide support, albeit not monthly support but rather educational support. Therefore, an abuse of discretion is the appropriate standard of review.

Blue v. Blue, 532 Pa. at 525-526, 616 A.2d at 631 (citations omitted).

Father first contends that the estrangement between himself and his daughter terminated his support obligation and barred any award for postsecondary educational costs. The testimony indicates that Father and Daughter had a heated argument when Daughter was 12 years old. During the argument Daughter stated that she no longer wanted to see Father, and as a result Father has had minimal communications with Daughter since that time.

Relying upon Bedford v. Bedford, 386 Pa.Super. 349, 563 A.2d 102 (1989), the trial court found that Father had an affirmative duty to attempt to redevelop a relationship with his daughter. The court held that since Father had not made a concerted and good faith effort to establish and develop a relationship with Daughter, the estrangement would not act to bar Father’s duty to pay support toward Daughter’s college education. Under the statute, the relevant inquiry is whether there has been “any willful estrangement between parent and student caused by the student after attaining majority,” (emphasis added) 23 Pa.C.S. § 4327(e)(5). On the basis of the record we find no such estrangement and thus hold that the trial court did not abuse its discretion in this regard.

Secondly, Father argues that even if estrangement is no bar, the trial court’s failure to properly explain and support the actual amount of the award, and the underlying computations, constituted an abuse of discretion. As we have previously noted, the Blue case, decided on November .13, 1992, determined that there was no common law duty for a parent to provide postsecondary educational support for a child. Thus, the only authority for the entry of the trial court’s July 14, 1993, order was the statute. However, the trial court, in its opinion of September 22, 1993, in support of the order, made no mention of the statute. Based on the record before us, we are unable to ascertain whether the trial court took into account all of the statutory criteria since it failed to make findings in accordance with the statute to support the award.

Regarding the amount of the award, the trial court made the following findings in its opinion:

At the hearings, the parties presented testimony as to their incomes and the educational expenses of Daughter. After considering that evidence, we found that Father earned 68% of the parties’ income ($3,266 of the parties’ total monthly income of $4,774). We also found that Daughter required $950 per month in support. However, rather than require Father to pay 68% of Daughter’s needs, in the interest of fairness and under the facts of this case, we thought it more equitable to only require Father to provide 60% of those needs. We, therefore, found that Father should pay $570 per month as support for Daughter, or $131 per week. That level is not too high and Father should not complain.

The figures upon which the court based its award are set forth in the exhibit to the court’s original order of July 14, 1993, as follows:

Order based on the following 1991 monthly incomes and expenses:
1. Father’s income — $3,266 (68% of total)
2. Mother’s income — $1,508 (32% of total)
3. Child’s minimal living expenses — $712
4. Child’s college expenses — $892
5. Child’s independent resources — $154
Calculation: Using 60% instead of 68% of Father’s contribution:
$712 + $392 =$1,104 (total expenses)
-154 (independent resources)
$950 (expenses allocated
x.6 between parents)
$570 divided by 4.33 = $131/week (father’s contribution)

The court’s determination that Daughter required $950.00 per month in support was thus apparently based on two components: the child’s “minimal living expenses” and the child’s “college expenses.” As previously noted, the statute defines educational costs as expenses for “tuition, fees, books, room, board and other educational materials” 23 Pa.C.S. § 4327(j). We are unable to ascertain from the record whether the $392.00 designated by the trial court as college expenses was limited to the statutory items. Nor are we able to determine how the trial court arrived at the figure of $712.00 for “minimal living expenses” or what this figure encompasses. In this regard, we note that the only reference in the statute to a student’s “living expenses” is in Section 4327(g) which provides that: “A parent’s obligation to contribute toward the educational costs of a student shall not include payments to the other parent for the student’s living expenses at home unless the student resides at home with the other parent and commutes to school.”

The court made no finding regarding the existence of any grants or scholarships awarded to Daughter, although the statute provides that such amount, if any, shall be deducted from the educational costs. Additionally, the trial court failed to make a determination as to whether Daughter made reasonable efforts to apply for scholarships, grants and work-study assistance, when this finding is mandated by the statute as a condition precedent to the entry of an award for postsecondary educational costs.

Even though the trial court’s order refers to the student’s “independent resources” in the amount of $154.00 a month, the court made no determination regarding Daughter’s receipt of educational loans and other financial assistance (§ 4327(e)(3)), or the ability of Daughter to contribute to her expenses through gainful employment (§ 4327(e)(6)). While the court made findings regarding the income of both parents, it made no findings with respect to the financial resources of the parents or the financial resources of the student which could include savings and investments in addition to income.

Therefore, we vacate the order and remand this case to the trial court for the opportunity to make findings consistent with this opinion.

VACATED AND REMANDED. JURISDICTION RELINQUISHED.

WIEAND, J. files a dissenting opinion.

WIEAND, Judge,

dissenting:

I respectfully dissent. It is clear to me that the estrangement between father and daughter was the result of the daughter’s conduct, which has continued until the present time. In this day and age when charges of harassment are not uncommon, it is difficult to fault this father for failing to be more assertive in attempting to reverse his daughter’s adamant decree that she never wanted to see him again and that he should stay away. This is particularly so where appellant’s attempts to contact his daughter by telephone, to send her gifts, to extend invitations for travel and to social events were all summarily rejected by the daughter. Indeed, even after making the present claim for educational assistance, the daughter has made no attempt to contact her father and has refused to speak with him.

Under these circumstances, I would hold that it was an abuse of discretion for the trial court to require appellant to contribute to the cost of his daughter’s college education. See: Milne v. Milne, 383 Pa.Super. 177, 556 A.2d 854 (1989) and 23 Pa.C.S. § 4327(e)(5). I would reverse the order of the trial court. Appellant has fulfilled his parental obligation to this willfully estranged daughter.

      . The court’s order of July 14, 1993, subsequently amended by order of August 11, 1993, was retroactive to July 8, 1991, and suspended as of November 13, 1993.

      . In Ulmer v. Sommerville, 200 Pa.Super. 640, 190 A.2d 182 (1963), the Superior Court held that "the law of this Commonwealth requires a father, under certain circumstances, to support a child while attending college,” even without any specific agreement to do so. 200 Pa.Super. at 643, 190 A.2d. at 184. This holding was refined in subsequent cases. See, e.g., Brake v. Brake, 271 Pa.Super. 314, 413 A.2d 422 (1979) (a support order may be entered against a parent for child’s college education, even in the absence of an agreement to support the child past the age of eighteen, as long as this obligation would not result in undue hardship to the parent); Miller v. Miller, 353 Pa.Super. 194, 509 A.2d 402 (1986) (the independent resources of a college age child may be considered in determining the child’s need for support); Lederer v. Lederer, 291 Pa.Super. 22, 435 A.2d 199 (1981) (factors to be considered in awarding college education support are whether the child is able and willing to successfully pursue his course of studies, the adequacy of the income of the child, and whether the parent has sufficient estate, earning capacity or income to provide for the education without undue hardship). In Blue v. Blue, the Supreme Court determined that "in each instance, the Superior Court assumed that a legal obligation existed and molded a remedy in response to that obligation.” 532 Pa. at 528, 616 A.2d at 631.

      . Portions of the statute contain many of the concepts, and in some instances are taken almost verbatim, from Ulmer v. Sommerville and its progeny. Cf., e.g., "[t]he duty of a parent to provide a college education for a child is not as exacting a requirement as the duty to provide food, clothing and shelter for a child of tender years unable to support himself,” Id., 200 Pa.Super. at 644, 190 A.2d at 184, with "[t]he duty of a parent to provide a postseeondary education for a child is not as exacting a requirement as the duty to provide food, clothing and shelter for a child of tender years unable to support himself.” 23 Pa.C.S. § 4327(a).

      . The statute defines postseeondary education as "an educational or vocational program provided at a college, university or other postsecondary vocational, secretarial, business or technical school.” 23 Pa. C.S. § 4327Q).

      . The exhibit to the Court’s order of July 14, 1993 contains the following statement: "This Order is entered without prejudice to the rights of either party with respect to Act 63 (sic) of 1993.” We are unable to determine from the record what the court meant by this statement.