text:
    597 A.2d 696
    Murray S. ECKELL, W. Donald Sparks, Arthur Levy, David E. Auerbach, Joseph L. Monte, Jr., Alvin Moses, Ronald J. Klimas and Nicholas A. Emper, T/A Eckell, Sparks, Levy, Auerbach, Monte and Moses, a Partnership, Appellants, v. William B. WILSON.
    Superior Court of Pennsylvania.
    Argued June 11, 1991.
    Filed Oct. 4, 1991.

      Jeffrey A. Less, Philadelphia, for appellants.
    Perry F. DiCola, Media, for appellee.

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

This is an appeal from the order of the Court of Common Pleas of Delaware County granting appellee’s preliminary objections in the nature of a demurrer to appellants’ complaint. We reverse.

Appellants raise four issues for our consideration:

1. Whether a complaint seeking recovery pursuant to an oral agreement can be dismissed for lack of a writing, where that defense is raised on preliminary objections;
2. Whether a complaint, which alleges an oral agreement by a client to compensate a law firm based on the reasonable value of its services, with the final determination of that value to be based in part on whether the firm achieves a favorable result, fails to state a cause of action;
3. Whether a contingency fee agreement for representation in an equitable distribution proceeding, where the client had already obtained a divorce at the time that he retained the law firm, is unenforceable based upon Ethical Consideration 2-20 of the Code of Professional Responsibility or public policy;
4. Whether the lower court’s order granting the demurrer and dismissing the complaint with prejudice should be affirmed on any grounds?

Because we reverse on appellants’ second issue, we need not consider the other issues raised in this proceeding.

Appellants are partners in the Delaware County law firm of Eckell, Sparks, Levy, Auerbach, Monte and Moses. Appellee/client, William Wilson, retained the law firm to represent him in his equitable distribution suit against his former spouse. In their complaint, appellants averred that they entered into a fee arrangement with Wilson whereby Wilson would pay the firm based upon the reasonable value of the services rendered. The arrangement also included a provision for appellee to pay appellants a minimum fee based on hourly rates on account during the pendency of the litigation, with the final fee to be determined at the conclusion of the litigation based upon the reasonable value of their services, based in part on whether a favorable result was achieved. Complaint, paragraph 6. The complaint additionally averred that appellants rendered their professional services and were able to accomplish results favorable to Wilson. Complaint, paragraph 10. The attorneys allege that the settlement between appellee and his wife resulted in a net savings to appellee of at least $3.5 million. Complaint, paragraph 12.

Appellants further alleged that the law firm sent a bill to appellee in the amount of $150,000 at the conclusion of the litigation. This amount represents professional services rendered less amounts appellee already paid the firm. In to to, appellants alleged that appellee owes the firm $121,-498.90. Complaint, paragraphs 13, 14. Appellants also aver that, although the firm has demanded payment, appellee has refused such payment.

We note initially that our standard of review in an appeal from an order sustaining preliminary objections in the nature of a demurrer is the same as that which the trial court employs: all material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for the purposes of review. Kyle v. McNamara & Criste, 506 Pa. 631, 634, 487 A.2d 814, 816 (1985). However, it does not admit conclusions of law. Wicks v. Milzoco Builders, Inc., 503 Pa. 614, 623, 470 A.2d 86, 91 (1983). The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Kyle v. McNamara & Criste, 506 Pa. at 634, 487 A.2d at 816. A demurrer should be sustained only in cases where the plaintiff has clearly failed to state a claim on which relief may be granted. Philmar Mid-Atlantic, Inc. v. York Street Associates II, 389 Pa.Super. 297, 301, 566 A.2d 1253, 1254-55 (1989); Wicks v. Milzoco Builders, Inc., supra. A demurrer should not be sustained if there is any doubt as to whether the complaint adequately states a claim for relief under any theory of law. Id.

Appellants argue that the lower court erred in characterizing the fee arrangement in question as an illegal contingency fee agreement under the now repealed Code of Professional Responsibility. To the contrary, appellee/client argues that although most contingent fees are either calculated based on a formula or provide for a specific sum of money to be paid, this arrangement is also a contingency agreement because it is dependent on the success at trial. The lower court found that the agreement, as alleged, constituted a contingency fee. The trial judge reasoned:

If, as the plaintiffs [appellants] contend, there was an oral agreement which required payment based upon the degree of success encountered during the equitable distribution proceeding, then, by definition, the plaintiffs’ [appellants’] agreement with defendant [appellee] was contingent in nature.

Lower court opinion 12/17/90 at 3. The lower court then concluded that the agreement was void under Pa.R.Civ.P. Rule 202, 42 Pa.C.S.A. (rescinded April 4, 1990, effective July 1, 1990), and Code of Professional Responsibility, Ethical Considerations 2-19, 2-20, 42 Pa.C.S.A. (superseded by Rules of Professional Conduct, 42 Pa.C.S.A., effective April 1, 1988). Rule 202 and Ethical Considerations 2-19 and 2-20 were in effect at the time the purported fee arrangement was made.

Contingency agreements have been defined in various forms. The Pennsylvania Rules of Professional Conduct characterize a contingency fee in the following manner:

A fee may be contingent on the outcome of the matter for which the service is rendered, except in a manner in which a contingent fee is prohibited by paragraph (d) or other law.

Rule of Professional Conduct, Rule 1.5(c), 42 Pa.C.S.A. While caselaw defining a contingency fee is lacking in Pennsylvania, we find it instructive to consider the pronouncements of the Supreme Judicial Court of Massachusetts which has defined a contingent fee agreement between an attorney and client as,

an agreement express, or implied, for legal services ... under which compensation, contingent in whole or in part upon the successful accomplishment or disposition of the subject matter of the agreement, is to be in an amount which either is fixed or is to be determined under a formula____

New England Telephone & Telegraph Company v. Board of Assessors of Boston, 392 Mass. 865, 870-71, 468 N.E.2d 263, 266-67 (1984).

While ostensibly the fee arrangement in the instant case is contingent in nature, a closer analysis leads us to conclude otherwise. We are guided in this decision by the analyses of various courts of our sister states which have previously had occasion to construe the type of agreement at issue here. See, e.g., Muldoon v. West End Chevrolet, 338 Mass. 91, 153 N.E.2d 887 (1958); Marriage of Malec, 205 Ill.App.3d 273, 150 Ill.Dec. 207, 562 N.E.2d 1010 (1990); Salerno v. Salerno, 241 N.J.Super. 536, 575 A.2d 532 (1990); Head v. Head, 66 Md.App. 655, 505 A.2d 868 (1986). For example, in Muldoon, supra, an attorney sought to recover “fair and adequate compensation ” for legal services “and for the results achieved ” in connection with Federal income tax adjustments. The client contended that the fee arrangement was a wholly or partially contingent fee and unlawful under Treasury Department regulations. Muldoon, 338 Mass. at 93, 153 N.E.2d at 889 (emphasis added). The trial court in that case found that the attorney’s clients agreed to pay a retainer fee plus additional compensation for the attorney’s services in an amount that would constitute fair, adequate and just compensation for the services rendered. Id.

The Massachusetts Supreme Judicial Court affirmed on appeal holding:

Such an arrangement is a usual and proper arrangement between lawyer and client and means that the lawyer’s services, if they have any value at all, are to be paid for in some amount in any event and that their fair market value is to be computed, after the services have been rendered, by an appraisal of the services in the light of all relevant circumstances. Certainly, ... the importance, size and difficulty of the matter involved, and the attorney’s success in dealing with them, are among the relevant considerations.

Id. at 95, 153 N.E.2d at 891 (citations omitted, emphasis added).

A more recent Illinois decision also concluded that a fee arrangement which determines the final fee based on the outcome of the case is not a contingency fee. In Marriage of Malec, supra, an attorney and his former partner entered into an agreement with John Malee, the petitioner, to represent Malec in his marriage dissolution. Marriage of Malec, 205 Ill.App.3d at 278, 150 Ill.Dec. at 211, 562 N.E.2d at 1014. The attorneys required a retainer fee and told Malee that the remainder of the fees would be settled, based on performance, at the end of the case. There was no written contract memorializing the agreement. Id. The petitioner/client argued that an enhanced fee or one that is based on results achieved, is a contingent fee. The Illinois court disagreed finding instead that the results obtained in litigation are a factor to be considered as a guide in determining reasonableness of the fee. Id. at 288, 150 Ill.Dec. at 217-18, 562 N.E.2d at 1020-21. The Malee court held that consideration of the reasonableness of a fee after litigation does not convert the fee into a contingency fee. Id. at 1020, 150 Ill.Dec. at 218, 562 N.E.2d at 1021.

A recent New Jersey decision also discussed the type of arrangement at issue here. In Salerno v. Salerno, supra, an attorney entered into a fee arrangement in a domestic action which recited the following:

1. you hereby agree to pay our firm a non-refundable minimum retainer fee of $2,500. The minimum fee will be credited against the legal services and court costs and disbursements in your matter as they accrue. If the services rendered by me are completed in less than — hours, I will retain the full retainer as a minimum fee.
2. The final billing is based on four factors: (1) the basic hourly rate (b) the result accomplished; (c) the amount in controversy; and (d) our experience and ability, all of which will be taken into consideration when the final bill is issued and none of which is solely determinative of the fee.

Id. at 541, 575 A.2d at 535. The New Jersey court held that although there was no rule which prohibited and attorney charge for an hourly rate and also an additional charge for the same service based on other factors, the additional charge resembled a contingent fee. The court therefore found the agreement invalid because the attorney failed to reduce the agreement to a writing and to detail an exact formulation to calculate the additional charge. Id. at 539, 575 A.2d at 534; New Jersey Rule of Professional Conduct, Rule 1.5(d)(1); N.J.Court Rule 1:21-7A.

Finally, in Head v. Head, supra, 66 Md.App. 655, 505 A.2d 868, the Maryland Court of Special Appeals had occasion to review a similar fee arrangement. In that case, appellee/husband petitioned the court for reasonable attorneys fees in defending against his wife’s attack on their antenuptial agreement. Husband’s law firm did not bill him for the additional fee, but looked to the court for a determination. An expert who testified at trial set the fee at $125,000. The trial court adopted this calculation. In a lengthy discussion, the Court of Special Appeals determined that an agreement based upon the reasonable value of the services provided by a lawyer was not a contingency fee. The court reasoned:

[T]he fee was not directly related by percentage or formula to the amount recovered or protected. Additionally, it failed to meet the generally accepted twofold purpose of a contingent fee. Not only could the parties clearly afford to retain the services of counsel on a fixed fee or hourly rate, but the successful resolution of the claim ... would not produce a res out of which the fee could be paid. There could be no res produced. The funds at issue were already in possession. It was the shielding of those funds from appellant’s claim that was at issue.

Id. at 668-69, 505 A.2d at 875.

After carefully considering the facts of the instant case, we agree with the majority of courts which concluded that an agreement which fixes a final fee based on the value of services rendered through the representation is a proper method of fixing a fee and is not a contingent fee in its commonly used meaning. In this situation, the fee is not truly contingent on the outcome of the case because the attorneys are paid regardless of the outcome of the litigation. In essence, they are exacting a fee based on their performance during the course of the litigation. A contingency fee agreement carries a risk that an attorney will not be paid if the outcome of the litigation is unsuccessful. No such risk is found here. Our Rules of Professional Conduct support such a result. The Pennsylvania Rules of Professional Conduct, Rule 1.5 states in pertinent part:

(a) A lawyer shall not enter into a fee arrangement for, charge, or collect an illegal or clearly excessive fee. The factors to be considered in determining the propriety of a fee include the following:
(1) whether the fee is fixed or contingent;
(2) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly;
(3) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(4) the fee customarily charged in the locality for similar legal services;
(5) the amount involved and the results obtained;
(6) the time limitations imposed by the client or by the circumstances;
(7) the nature and the length of the professional relationship with the client; and
(8) the experience, reputation, and ability of the lawyer or lawyers performing the services.

Pa.R.Prof.Conduct, Rule 1.5; Code of Professional Responsibility, DR 2-106(B). We decline to follow the New Jersey court decision in Salerno, supra. While this type of fee arrangement is seemingly characteristic of a contingency agreement, the New Jersey court failed to recognize that the agreement merely seeks a quantum meruit fee based on the reasonable value of the services rendered. We therefore, vacate the order granting appellee’s preliminary objections and reinstate appellant’s complaint.

Order of November 19, 1990 vacated; complaint reinstated. Remanded for proceedings consistent with this memorandum; jurisdiction relinquished.

      . Appellee also argues that appellants sent a letter to appellee confirming the agreement between them. He argues that the parol evidence rule bars appellants from alleging a prior oral agreement which contradicts the terms of the writing. The contents of the writing were attached to the pleadings as part of an affidavit.
      Our standard of review precludes us from analyzing the letter. It is well-settled that a demurrer cannot be a "speaking demurrer" and cannot be used to supply a fact missing in the complaint. Hall v. Goodman, 310 Pa.Super. 465, 477, 456 A.2d 1029, 1035, (1983). An exception exists to allow a defendant to attach a copy of a written agreement where the plaintiff alleges an agreement based on a writing. No exception exists, however, when an oral agreement is alleged. Martin v. Commonwealth, Department of Transportation, 124 Pa. Commw. 625, 629, 556 A.2d 969, 971 (1989). Here, appellants have alleged that the fee agreement was oral. We therefore, cannot consider the affidavit which states the terms of the letter contradicting appellants’ allegation of an oral agreement. An issue of this type is properly raised in a motion for summary judgment.

      . Rule 202 provided that agreements between attorney and client relating to compensation wholly or partly on a contingent basis shall be in writing.

      . Code of Professional Responsibility, Ethical Consideration 2-19 provided "it is usually beneficial to reduce to writing the understanding of the parties regarding the fee, particularly where it is contingent.” Code of Professional Responsibility, Ethical Consideration 2-20 provided that because of the human relationships involved and the unique character of the proceedings, contingent fee arrangements in domestic relation cases are rarely justified. However, the ethical considerations are aspirational in character and represent the objectives toward which every member of the profession should strive. Code of Professional responsibility, Preamble and Preliminary Statement, 42 Pa.C.S.A. (rescinded effective April 1, 1988). They are not mandatory laws.
      The trial judge also found that the conduct of the appellants may have violated Rule of Professional Conduct, Rule 1.5(c), 42 Pa.C.S.A. for failing to set forth a contingency fee agreement in writing. We note that because the purported agreement was entered into, in 1984, while the Code of Professional responsibility was in effect, the Code governs the present case. Rules of Professional Conduct, Publisher’s Note, 42 Pa.C.S.A. (professional misconduct occurring on or before March 31, 1988 is governed by the Code of Professional Responsibility).

      . The Illinois Court of Appeals held that the fee arrangement was not a contingency fee because it was based upon the reasonableness of the services rendered. However, it additionally held that a subsequent agreement between the petitioner and one of the lawyers permitting a $1 million fee if certain particularized results were achieved in the underlying litigation, transformed what was otherwise a legitimate fee arrangement into a contingency fee. Id.

      . Since we find that the arrangement at issue here is not a contingency fee arrangement, it is not subject to Pa.R.Civ.P. Rule 202, 42 Pa.C.S.A. (rescinded), which requires contingent fee agreements be set forth in a writing, or Code of Professional Responsibility, EC 2-20, 42 Pa.C.S.A., which disapproves of contingent fee agreements in domestic relations actions.

      . While the current Rules of Professional Conduct were not in effect at the time of this transaction, the rules are helpful in determining the current state of the law in this Commonwealth. Moreover, we believe that the Rules of Professional Conduct would require the same result. The Rules only require a writing where an attorney enters into a contingency fee agreement with the client. Pa.Rules of Professional Conduct, Rule 1.5(c), 42 Pa.C.S.A.
      However, we alert appellants to the exigency of a writing to confirm the fee arrangement with the client. In this regard, writings avoid misunderstandings regarding the fee and the methods by which it is determined. Pa.Rules of Professional Conduct, Rule 1.5, comment, 42 Pa.C.S.A. (a written statement concerning the fee reduces the possibility of misunderstanding).

      . It is incumbent upon the trial court to determine whether the fee which counsel exacts is reasonable in light of all factors enumerated . in Rule of Professional Responsibility, Rule 1.5, 42 Pa.C.S.A., or in the Code of Professional Conduct DR 2-106, 42 Pa.C.S.A. If the court does not scrutinize the fee under a reasonableness standard, a danger exists that a client may be subject to an attorney's overreaching because the attorney would be permitted to set the fee arbitrarily and unilaterally.


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    597 A.2d 701
    Diane PLOWMAN v. Bradley PLOWMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued July 30, 1991.
    Filed Oct. 7, 1991.

      James Mahood, Pittsburgh, for appellant.
    Robert J. Fall, Pittsburgh, for appellee.
    Before McEWEN, OLSZEWSKI and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the final order of the Court of Common Pleas of Allegheny County granting legal and physical custody of a minor child to appellee/mother, subject to the partial custody of appellant/father. We affirm.

Appellant Bradley Plowman (hereinafter “father”) and appellee Diane Plowman (hereinafter “mother”) were married on May 28, 1983. During the course of the marriage, they had one child, Jason Plowman. On September 13, 1988, mother filed a complaint in divorce against father. In the complaint, she sought custody of Jason. On January 6, 1989, the parties agreed to a custody order which awarded primary physical custody to mother and granted partial physical custody to father.

Later that year, mother filed a petition for modification so that she could move to Gaithersburg, Maryland with Jason to accept employment as a medical assistant. In immediate response, father petitioned the court for a writ of ne exeat to prevent mother from moving to Maryland with the minor child. Judge Kaplan of the Allegheny County Court of Common Pleas Family Division entered an order which denied modification of the custody order as well as father’s petition for writ of ne exeat, and sub silentio allowed mother to relocate to Maryland with Jason. He ordered an expedited custody conciliation hearing if the parties could not agree on a visitation schedule. Judge Kaplan also ordered the court appointed psychologist to consider the change in circumstances in conducting his evaluation of Jason. On June 23, 1989, father filed a petition for modification of custody. On June 27, 1989, the parties entered into an interim order of custody which provided that both parties maintain joint legal custody of Jason while allowing mother primary physical custody of the child in Gaithersburg. Mother and Jason moved to Maryland in July of 1989.

Between that time and the time of the full custody hearing in July, 1990, appellant filed three petitions for special relief alleging that mother failed to adhere to the interim custody order by prohibiting his access to Jason. On July 17, 1990, a full custody hearing was held before Judge Baer of the Allegheny County common pleas court family division. In his opinion, Judge Baer determined that mother displayed a natural ability to parent which made her the ideal primary caretaker for Jason. He found that upon her arrival in Maryland, she enrolled Jason in an excellent school, further indicating her dedication to the child and willingness to make sacrifices for the child. He also found that when mother vacated the marital residence, she prohibited father from seeing the child, with one exception, until establishment of a court order. Although mother abided by the order, she treated it mechanically, disregarding any flexibility to observe the child’s best interests. Mother has generally not made the child available for father’s telephone calls and would not allow the child to visit with father when she is in Pittsburgh unless required by court order.

The trial court also found that father is an understanding and thoughtful person who has a close and supportive relationship with his family. Judge Baer noted that although father had a previous bout of depression and related alcohol and drug problems, he overcame those problems which consequently had no bearing on the Court’s decision. He found that when mother left the marital residence in September, 1988, father’s relationship with Jason was cut off by mother’s unilateral actions until January, 1989. Since then, father remained a part of the child’s life and has done as well as could be expected to establish and maintain his role as a father under difficult circumstances.

Judge Baer gave credence to the opinion of the court appointed psychologist, Dr. Rosenblum, who found that the child’s attachment to mother was stronger than the attachment to his father. Judge Baer concluded that mother has been generally uncooperative and difficult with father’s partial custody and in this regard has not served the child’s best interests. He stated, however, that one parent’s ability to promote a continuing relationship with the other is only one factor to be considered, and in this case, was not a sufficient factor to justify a removal of the child from the mother and an award of primary custody to the father.

Judge Baer subsequently issued an order granting mother physical and legal custody of Jason subject to the partial custody of father. The order was drafted specifically to allow father a continuing relationship with the child father without any interference from mother. This timely appeal followed in which father raises three issues for our review:

1. Did the court err in permitting the mother to move out of the jurisdiction with the minor child without holding a hearing and making a determination of the child’s best interests;
2. Did the court err in failing to adequately consider the mother’s interference with the father’s relationship with the child, her refusal to accommodate a relationship between the father and the child, and the father’s parenting skills in making its determination;
3. Did the court err in excluding evidence offered by the father relating to the job opportunities and salaries for the mother in the Pittsburgh area and in finding that the mother had legally compelling reasons to move?

Before addressing these claims on their merits, however, we must determine whether father’s first issue on appeal is properly before us. Mother has opposed our consideration of the order allowing her to relocate with Jason to Maryland on the grounds that father did not immediately appeal Judge Kaplan’s order under the collateral order doctrine or by certification of the appeal, pursuant to 42 Pa.C.S.A. § 702(b).

The collateral order doctrine allows an appeal of an interlocutory order if certain conditions are met. As this court has set forth previously:

Under [Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) ], an order is considered final and appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost.

Kronz v. Kronz, 393 Pa.Super. 227, 232, 574 A.2d 91, 93-94 (1990)(citation added). Under this test, we find that the order issued by Judge Kaplan in this case was not appeal-able. While father’s right is extremely important and deserves consideration, we do not find that the order was separable from and collateral to the main cause of action. Here, father filed a petition to restrain mother from removing the child from the jurisdiction. The court denied this petition and allowed mother to relocate with the child. In effect, the issue of where the child should live is intertwined with the issue of which parent should maintain custody over the minor child.

We are also unpersuaded by mother’s argument that father could have sought certification to appeal. Certification of an interlocutory appeal is not automatic. A party must obtain certification from the lower court and permission from this court before an appeal may be had. 42 Pa.C.S.A. § 702(b); Pa.R.A.P. Rule 1301, et seq., 42 Pa.C.S.A. Counsel for mother has not provided us with a rule of law, nor has our exhaustive research found one, which prohibits a party from appealing an interlocutory order where that party did not seek certification for interlocutory appeal based on that order. Having determined that the issue raised by father is properly before us, we turn to the merits of father’s appeal.

In his first argument, father avers that Judge Kaplan erred in entering an order allowing mother to relocate with Jason to the Washington D.C. area without holding a hearing to consider the child’s best interests. He alleges that because the full hearing on custody occurred one year later, the court based its decision on the new status quo created after the move. This, he contends, deprived him of due process.

Judge Baer found this issue moot because he held a subsequent evidentiary hearing on the issue of custody. Therefore, a review of Judge Kaplan’s decision would have subverted the court’s ultimate obligation to review the best interests of the child as of the time of the hearing under the facts as they then existed.

This court has previously held:
As a general rule an actual case or controversy must exist at all stages of the judicial process, and a case once “actual” may become moot because of a change in facts____ An exception is made, however, for cases in which the issues are capable of repetition but likely to evade review if the general rule on mootness is applied____ Thus, an action will not be found moot when the challenged action is in its duration too short to permit full litigation and there is a reasonable expectation that the same complaining party will be subject to the same action again____ Where the same party will not be subject to the harm again and the action is not a class action, still, the case will not be found moot if the issues capable of repetition but likely to evade review are “substantial questions,” or “questions of public importance.”

In re Estate of Dorone, 349 Pa.Super. 59, 65, 502 A.2d 1271, 1274 (1985) (citations omitted). Father alleges that he was denied procedural due process since he was not afforded a full evidentiary hearing before the court allowed Jason to relocate in Maryland with his mother. In a case such as this, we could never reach this issue because appellant would necessarily be forced to delay his appeal until a final custody order had been entered. According to the trial court, the issue became irrelevant once final custody was determined. However, the non-custodial parent’s right to a proper determination of whether the custodial parent may move out of the jurisdiction with the minor child is substantial enough to require our consideration of the proper procedures to be implemented at such a juncture. We therefore turn to the merits of father’s appeal.

Due process is a concept incapable of exact definition. Rather, it is a flexible notion which calls for such procedural safeguards as a particular situation demands to ensure fundamental fairness to a potentially aggrieved litigant. Corra v. Coll, 305 Pa.Super. 179, 182, 451 A.2d 480, 482 (1982). The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976). We have previously stated:

The right of a litigant to an in-court presentation of evidence is essential to due process: “In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine witnesses.”

Hall v. Luick, 314 Pa.Super. 460, 463, 461 A.2d 248, 250 (1983) citing Goldberg v. Kelly, 397 U.S. 254, 269, 90 S.Ct. 1011, 1021, 25 L.Ed.2d 287, 300 (1970). We find that due process requires a full evidentiary hearing to be held either before the child is moved from the jurisdiction or within a reasonable time thereafter.

Our decision rests on the substantial rights of parents to maintain a continuing and meaningful relationship with their minor children. However, where the parents disregard the rights of one another, or as here where one parent displays antipathy towards the other, it becomes the responsibility of the court to ensure fairness of both procedure and result in a custody action.

While the best interests of the child are more closely allied with the interest and quality of life of the custodial parent, Gruber v. Gruber, 400 Pa.Super. 174, 183, 583 A.2d 434, 438 (1990), this factor must be balanced against an appreciation of and sensitivity to the mutual interest of the child and the non-custodial parent in maintaining as healthy and loving a relationship as possible. Id. As Judge Beck stated in Gruber:

The task of this court is to sacrifice the non-custodial parent’s interest as little as possible in the face of the competing and often compelling interest of a custodial parent who seeks a better life in another geographical location.

Id. In this context, we note that while the custodial parent has the right to make decisions .concerning his or her welfare and the welfare of the minor children, that parent has a responsibility towards the non-custodial parent to maintain the relationship between the minor children and the non-custodial parent. This may only be accomplished where the court is permitted to decide custody before the minor child is moved from the jurisdiction. In Gruber we developed a three part test to facilitate the trial court’s determination of whether the best interests of a minor child are served by moving outside of the jurisdiction with the custodial parent or remaining in the jurisdiction with the non-custodial parent. We now decide when those interests must be balanced. We find that the same competing interests found in Gruber mandate that the balancing must be made before the child is permitted to move from the jurisdiction, or under exigent circumstances, within a reasonable time thereafter.

We make no requirement for a hearing when the two parents are able to arrive at a mutual decision regarding a minor child’s move from the jurisdiction. In the absence of an agreement, however, the non-custodial parent has a compelling right to be heard as to whether such a move is in the best interests of the minor child. In fact, such a hearing may be his or her last meaningful opportunity to be heard on the question of custody. We therefore hold that where either parent files a petition which raises the issue of whether it is in the best interest of the child to move with the custodial parent outside of the jurisdiction, a hearing must be held either before the move, or under exigent circumstances, within a reasonable time thereafter.

We find that our Rules of Civil Procedure also support this result. The rules provide, in pertinent part:

No judgment may be entered by default or on the pleadings.

Pa.R.Civ.P. Rule 1915.9, 42 Pa.C.S.A. While this rule ostensibly applies to final orders of custody, Rule 1915.9, Explanatory Note, we find it applicable where the result of any order substantially affects the rights of either parent, or the minor children.

In the case sub judice, the court allowed no full evidentiary hearing to be held on whether the best interests of the child were served by allowing him to move with mother to Maryland. Nor is there any indication that Judge Kaplan entertained oral argument on the issue. This was error. The lower court was obligated to entertain a full evidentiary hearing on the issue of modification of custody before allowing even a de facto modification. The trial court here waited over one year before having a full evidentiary hearing on mother’s custody modification petition. During this time period, father’s ability to defend his position eroded because the more time Jason was allowed to stay in Maryland, the more it could be argued that it was in his best interests to remain in Maryland under the new status quo. Given the compelling interests of the noncustodial parent involved here, the court’s delay in holding the evidentiary hearing was unreasonable.

In Gruber, supra, we set forth the following three factors for the trial court to utilize in determining whether a custodial parent shall be permitted to relocate a geographical distance from a non-custodial parent:

1. the potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the child and is not the result of a momentary whim on the part of the custodial parent;
2. the integrity of the motives of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it;
3. the availability of realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent.

Id., 400 Pa.Superior Ct. at 184-85, 583 A.2d at 439. These considerations must then be factored into the ultimate consideration of the court, which is to determine what is in the best interests of the child. See Lee v. Fontine, 406 Pa.Super. 487, 594 A.2d 724 (1991), at _, 594 A.2d at 726 (any judicially determined preconditions may amplify, but do not alter, the best interest standard).

After reviewing the record we find that Judge Kaplan failed to consider the impact of any of these concerns when deciding to allow mother to relocate with Jason. However, we cannot redress this error by eliminating all the proceedings that have occurred until this point. Our review must be based on the best interests of the child at the time of the present hearing. Commonwealth ex rel. Gorto v. Gorto, 298 Pa.Super. 509, 514, 444 A.2d 1299, 1301 (1982) (facts as of the time of hearing are the foundation for determination of the court). In custody proceedings, the paramount concern is the welfare of the children and all considerations, including the rights of the parents, are subordinate to the children’s physical, intellectual, moral spiritual and emotional well being. Constant A. v. Paul C.A., 344 Pa.Super. 49, 65, 496 A.2d 1, 9 (1985). We cannot ignore the last two years of the child’s life in Maryland as though they never occurred. Therefore, we find that the trial court was correct in determining that it would be useless to pass judgment on the prior decision, but could appropriately consider the effect of that decision on the welfare of the minor child.

Father also contends that the lower court failed to adequately consider the mother’s interference with the father’s relationship with the child, her refusal to accommodate a relationship between the father and the child and the father’s parenting skills in making its determination. Implicitly, father argues that the trial court in the custody hearing failed to consider those factors enunciated in Gruber, supra. We disagree.

On appeal, our scope of review is broad in that we are not bound by deductions and inferences drawn by the trial court from the facts found, nor are we required to accept findings which are wholly without support in the record. On the other hand, our broad scope of review does not authorize us to nullify the factfinding function of the trial court in order to substantiate our judgment for that of the trial court. Rather, we are bound by findings supported in the record, and may reject conclusions drawn by the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court.

Lee, at 725. Our review of the record finds that Judge Baer adequately focused on the hostilities between mother and father which caused mother to hinder the relationship between father and the minor child. We find the following discussion of the lower court opinion:

The father has a close and supportive relationship with his family, which has helped the father and supplies a supportive, loving environment for the child. The would also be of benefit to the child and will be of benefit to the child as the child grows____ Between the fall of 1987, when the father returned to the marital residence, and the fall of 1988, when the mother left the marital residence, the father saw the child extensively and developed a good, loving, supportive father-son relationship with the child. When the mother left the home permanently in the fall of 1988, the father’s relationship was cut off by the mother’s unilateral actions until January 1989. Since January of 1989, the father has remained a part of the child’s life and has done as well as could be done to establish and maintain his role as father under difficult circumstances. The father is a good father, who participates actively in the child’s life and has a close and loving relationship with the child.
The mother left the marital residence permanently in the fall of 1988 and prohibited the father from seeing the child, with one exception of four hours for the next hundred days. The mother, after establishment of the court order at the end of that hundred days, abided by that court order by and large; however, the mother has treated the court order mechanically and she has shown no recognition of any need for flexibility to observe the child’s best interests. The mother has generally not made the child available for the father’s telephone calls. The mother concedes candidly that when she is in Pittsburgh, unless she is required by court order to allow the father to see the child, she prohibits the father from seeing the child.
Based upon all of these facts, the Court enters the following conclusions of law. Both mother and father possess good parenting skills and are both equally good parents, who are dedicated to the child.
The mother has generally been uncooperative and difficult with the father’s partial custody and this has not served the child’s best interest; the father would do more to promote partial custody today than the mother. If this court were to decide this case solely on the factor of cooperation between the parents and the variable of which of these parties would be more conscientious in allowing the other to see the child, it would decide this case for the father; but that is only one factor to be considered, and, after reviewing it carefully, it is not a sufficient factor in this case to justify a removal of the child from the mother and awarding of custody of the child to the father.

Judge Baer examined mother’s recalcitrance in hindering father’s access to the minor child and specifically determined that it was not a compelling factor to award physical custody to father. Thus, Judge Baer appropriately drafted a specific custody order to preclude mother from denying father access to Jason. Furthermore, Judge Baer also concluded that mother moved to Maryland for better job opportunities in her chosen profession. We therefore find that Judge Baer adequately addressed the concerns found compelling in Gruber, supra. His conclusions are supported by the record and are reasonable. We will not disturb them on appeal.

Finally, appellant argues that the trial court erred in excluding evidence of job opportunities and salaries in the Pittsburgh area and in finding that the mother had legally compelling reasons to move. After careful review, we find appellant’s argument meritless. A trial court has wide discretion in ruling on the relevancy of evidence, and its rulings thereon will not be reversed absent an abuse of discretion. Dunkle v. West Penn Power Co., 400 Pa.Super. 334, 337, 583 A.2d 814, 815 (1990). Evidence which “tends to establish facts in issue or in some degree advance the inquiry” is relevant. Scullion v. EMECO Industries, Inc., 398 Pa.Super. 294, 301, 580 A.2d 1356, 1360 (1990).

In this case, father attempted to introduce evidence that mother made certain wages between 1982 and 1985. He argues that this evidence tends to prove that she could have obtained employment in the Pittsburgh area instead of relocating to Maryland. We do not dispute that father may inquire into mother’s motives in moving to Maryland. Gruber, supra. Nor do we dispute that mother’s ability to obtain similar employment in Pittsburgh may be relevant to her motives. However, the relationship between the evidence offered here and mother’s present ability to find similar work in Pittsburgh is tenuous at best. Mother had studied to become medical assistant. Therefore, evidence not relating to her job search in that profession would be irrelevant. Moreover, her ability to obtain employment in 1982 does not have any impact on her ability to find employment in 1989. External factors, such as the employment rate, the financial status of the Pittsburgh economy, and mother’s educational achievements after 1982, have an effect on her subsequent job search. We find no abuse of discretion in the trial court’s exclusion of this evidence.

Order affirmed.

McEWEN, J., concurs in the result.

      . We interpret father’s use of the term "hearing” as referring to a full evidentiary hearing on the custody issue to determine whether the move is in the best interests of the child.

      . If a parent decides to move outside of the jurisdiction with the minor child without a consent agreement, or without permission of the court under the circumstances enunciated, the trial court should utilize its contempt powers to force the custodial parent’s compliance.

      . We note that no court can adequately address the contempt both mother and father maintain against one another. Certainly, this discord affects the minor child adversely and is not in his best interests. We advise the parents to set aside their individual preconceived notions and truly consider the best interests of the child, not their own preconceived notions.

      . We note that appellant’s written argument on this point is an attempt to relitigate the issues already addressed by the trial court. This court has consistently held that it is inappropriate for the Superi- or Court to make factual determinations based upon conflicting evidence. Lanard & Axilbund, Inc. v. Mascara, 394 Pa.Super. 251, 259-60, 575 A.2d 615, 619 (1990).


author: FORD ELLIOTT, Judge:

text:
    597 A.2d 709
    Deanna PORTER, Appellant, v. Theodore D. KALAS, His Heirs, Personal Representatives, Successors and Assigns; Steven Takes, His Heirs, Personal Representatives, Successors and Assigns; Ralph Corton, His Heirs, Personal Representatives, Successors and Assigns; D.B.A. Anthony’s Jazz Lounge, its Successors, Assigns and Devisees, and Anthony’s Jazz Lounge, Inc., a PA Corporation doing business as a PA Corporation, its Successors, Assigns, and Devisees.
    Superior Court of Pennsylvania.
    Argued June 20, 1991.
    Filed Oct. 9, 1991.

      Randy L. Rayl, Pittsburgh, for appellant.
    George C. Diamantopulos, Pittsburgh, for appellees.
    Before POPOVICH, JOHNSON and FORD ELLIOTT, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from the order entered September 6, 1990, in the Court of Common Pleas of Allegheny County, denying appellant’s motion for post-trial relief, and confirming the order dated June 7, 1990. The June 7, 1990 order followed a non-jury trial before the Honorable Richard G. Zeleznik, and provided:

(1) That final judgment is entered in favor of the Defendants [/Appellees], and the Plaintiff [/Appellant] is forever barred from asserting any right, title or interest in the subject 3 ft. easement running through Lot 18 known locally as 1304 East Carson Street inconsistent with the expressed reservation in a deed from Jane Carey to Bernard H. Rust in 1862 as recorded in Deed Book Volume 157, at page 585 for a distance of 36 ft., and extended thereafter to a depth of 90 ft. by action and conduct of the predecessors in title of both parties.
(2) That the 8 ft. easement in the deed from Jane Carey to Bernard H. Rust in 1862 and excepted in plaintiff’s chain of title for 84 years thereafter is a valid reservation of use and possession for the benefit of both parties.
(3) That the remote grantors of both parties extended the said easement to a depth of 90 ft. for their mutual benefit and such is a valid extension.

Appellant raises three issues in her appeal from this order of the trial court.

I. Whether an express easement by reservation or grant was created in favor of the defendants’ land to [the] detriment of appellant’s land or did appellees only have a permissive license for use which was revocable by appellant at will?
II. Whether an easement by adverse possession or by necessity was created in favor of appellees to the detriment of appellant or was the use of the property a mere license subject to revocation?
III. Whether the easement was enlarged to include the entire length of appellant’s property including the second floor or was the second floor usage merely a license and subsequently abandoned?

Before addressing the merits of the issues raised by appellant, it is first necessary to thoroughly review the factual background giving rise to this action to quiet title. The subject of the dispute between the parties is a three-foot wide passageway between two adjoining three-story buildings fronting Carson Street in the South Side section of Pittsburgh. Both buildings have entrances opening into this hallway, in addition to regular storefront entrances along Carson Street. Appellant, Deanna Porter, owns the building numbered 1304 Carson Street, and appellees own the adjoining building, numbered 1306 Carson Street.

The present controversy arose in 1988 when appellant first inspected the passageway and discovered that appellees, who operated a lounge, were utilizing the passageway to receive deliveries, and store beer and food products. Appellant notified appellees to cease further use of the passageway. When appellees asserted their right to continue using the passageway, appellant filed an action to quiet title.

Appellant’s building was originally acquired by her parents in 1973, and appellant became sole owner in 1986 by inter-party conveyances and operation of law after the death of her parents. In her quiet title action, appellant maintained that appellees use of the passageway was not pursuant to any easement, but was rather by permissive license which was revocable at will.

Appellees, on the other hand, maintained their right to use the passageway based upon an express reservation in a deed from Jane Carey to Bernhard H. Rust on December 27, 1862. Reference to this reservation in the Carey to Rust deed was expressly spelled out in appellant’s chain of title for eighty-four years, and in appellees’ chain of title for seventy-six years.

The remote grantors of each party entered into an uncomplicated party-wall agreement on July 13, 1870. The buildings were constructed along the party-wall so as to preserve the passageway in an enclosed hallway fashion. Both buildings had side entrances cut into the hallway area. After the construction of each building, the passageway was extended from the original thirty-six feet set forth in the Carey/Rust deed, to a length of ninety feet running the entire length of the second floors of the buildings. This entire ninety foot hallway has been used by appellees for over twenty one years for deliveries and storage.

After considering the testimony of several witnesses, including Henry T. Miklas, Esquire, who reviewed the Carey/Rust deed and traced the easement language through the chain of titles down to the present parties, the trial court concluded that there was an express easement by reservation in appellees favor as to the passageway. Furthermore, the trial court concluded that the remote grantors of both parties extended the easement to a depth of ninety feet for their mutual benefit, and that such an extension was valid. Appellant filed post-trial motions which were subsequently denied by the trial court. This timely appeal followed.

Appellant’s first issue concerns the express easement by reservation in the Carey to Rust deed of 1862. According to appellant, the easement was abandoned in 1870, and therefore appellees’ use of the hallway was a mere license subject to revocation by appellant. Appellees’ position is that the express easement by reservation can be traced through the chains of title to both properties and that the easement is still valid and enforceable. Preliminarily, we note that our scope of review of a final judgment by a trial court sitting without a jury is well defined.

Our appellate role is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in any application of the law. The findings of the trial judge in a non-jury case must be given the same weight and effect on appeal as the verdict of a jury, and the findings will not be disturbed on appeal unless predicated upon errors of law or unsupported by competent evidence in the record. Furthermore, the verdict winner is entitled to have the evidence considered in a light most favorable to himself.

Piccinini v. Teachers Protective Mutual Life, 316 Pa.Super. 519, 524-25, 463 A.2d 1017, 1021 (1983).

The trial court concluded that the express easement by reservation in the Carey to Rust deed is still valid and enforceable against appellant. Our review of the record indicates that this conclusion is supported by competent evidence and is proper, based upon the applicable principles of law. A review of the language in the Carey to Rust deed demonstrates that an easement by reservation was specifically created for the benefit of both parties.

BEGINNING at the north west corner of lot number nine (9) thence West along Carson Street twenty (20) feet, thence south along the other part of lot number 18 ninety (90) feet thence east twenty feet (20) to the line of lot number nine (9) thence along said line north and west end of a Creek house on lot number nine (9) ninety (90) feet to Carson Street the place of beginning. The said Jane Carey reserves the right and privilege of a three (3) feet alley and beginning on the westerly side of the line of lot number nine (9) thence along Carson Street Westerly three (3) feet into lot number eighteen (18) and thence southwardly preserving the same width of three (3) feet thirty six (36) feet on said lot number eighteen (18) and only one story high on that said alley may be over builded and joint with the line of lot No. 9 to the benefit use and comfort of both parties or their successors of said properties ...

(Carey to Rust Deed, December 27, 1862, Deed Book Volume 157, page 85).

Furthermore, the only “expert” testimony presented by either party at trial was the testimony of Henry T. Miklas, Esquire. Mr. Miklas is a real estate lawyer who has searched approximately 2,500 to 3,000 titles during his career. Mr. Miklas performed an extensive search of the two subject properties, focusing in on the language in the Carey to Rust deed wherein the easement by express reservation was created. The easement related to a three foot alleyway and was for the benefit of the properties at 1304 and 1306 East Carson Street. Mr. Miklas testified that he traced the title down for each of these properties and discovered that the express reservation was contained in successive deeds to appellees’ property for seventy-six years and in successive deeds to appellant’s property for eighty-four years. It was also Mr. Miklas’ testimony that in the deeds which did not contain the express reservation language (after 1938 for appellees’ property and after 1946 for appellant’s property), the exception clauses included the easement by reservation expressly recited in the former chains of title to both properties. Thus, based upon the physical evidence of the Carey to Rust deed, itself, and upon the testimony of a real estate lawyer who traced the chain of title in both properties, the trial court was presented with competent evidence from which to conclude that the express easement was still valid.

Based upon the facts presented, the Honorable Richard G. Zeleznik summarized the applicable law and concluded that appellant took title to her property subject to the easement in the hallway. In the words of Judge Zeleznik:

A purchaser of land subject to an exception, restriction, or servitude which appears in the line of title, takes subject to the servitude even without actual knowledge of its existence. The grantee in a deed must search for a conveyance or encumbrance from every prior holder of his title. The record is constructive notice of an easement to a subsequent purchaser. Once having received such constructive notice, the grantees of the land subject to the restriction [appellant] are in no position to question the existence of the easement and her property at 1304 must submit to its burden under the covenant running with the land. A grantee is chargeable with notice of everything affecting his title which could be discovered by an examination of the deeds and records.. Piper v. Mowris, [466 Pa. 89] 351 A.2d 635 (Pa.Supreme Court 1976); Vinso v. Mingo, 162 Pa.Superior 285, 57 [sic] A.2d 583 (1948); Owens v. Holzheid, [335 Pa.Super. 231] 484 A.2d 107 (1984).

(Trial court opinion, September 6, 1990 at 4-5). Clearly, the trial court committed no error of law in reaching the conclusion that appellant was on constructive notice of the easement by reservation in the chain of title to her property, and therefore we will affirm that decision by the trial court.

Appellant’s second issue is closely related to her first. Appellant argues that were this court to agree with her first argument that there is no valid express easement by reservation still in existence, then we should also conclude that there is no easement by either implication or prescription, as well. However, because we have already held that there presently exists a valid express easement by reservation and that appellant is subject to the terms of that express easement, there is no need to address the issues of whether there is an easement by implication or prescription.

Appellant’s third issue concerns the length of the easement. According to appellant, the original express easement by reservation in the Carey to Rust deed, only covered a distance of thirty-six feet and did not include the second floor landing. Thus, appellant maintains that the trial court erred in concluding that the easement extended the entire length of the buildings, ninety feet, and included the second floor landing. While it is true that the original easement was only for a distance of thirty-six feet, that distance has been subsequently lengthened to encompass the entire length of the buildings by way of an easement by implication. An easement by implication exists:

[WJhere an owner of land subjects part of it to an open, visible, permanent, and continuous servitude or easement in favor of another part and then aliens either, the purchaser takes subject to the burden or the benefit as the case may be, and this irrespective of whether or not the easement constituted a necessary right-of-way.

Bums Manufacturing Co. v. Boehm, 467 Pa. 307, 314, 356 A.2d 763, 767 (1976). In the present case, the undisputed testimony of record was that the entire ninety foot hallway in question, including the second floor landing, had been used by the owners and occupants of 1306 East Carson Street for ingress and egress and storage from a period of 1945 till present. Thus, although the original express easement by reservation only called for an easement in the hallway to a distance of thirty-six feet, that distance was subsequently lengthened to ninety feet and included the second floor landing, by means of an easement by implication. Therefore, the order of the trial court was correct in all respects.

Order affirmed. Jurisdiction relinquished.

      . To the extent that Mr. Miklas was able to offer his expertise in assisting the trier of fact in evaluating the various deeds and understanding the language contained therein, then his testimony may be characterized as that of an "expert.” However, to the extent that Mr. Miklas’ testimony offered an opinion as to an ultimate issue of fact, it may not be considered and should be excluded if it would tend to confuse, mislead, or prejudice the trier of fact. Bessemer Stores, Inc. v. Reed Shaw Stenhouse, Inc., 344 Pa.Super. 218, 496 A.2d 762 (1985). It appears from the record that the trial court accorded Mr. Miklas’ testimony the proper weight. Furthermore, there was no objection at trial to Mr. Miklas’ testimony. Thus, while we characterize Mr. Miklas’ testimony as that of an “expert," we do so cautioning that as an expert his opinions would not suffice to resolve ultimate issues of fact.


author: CERCONE, Judge: JOHNSON, Judge,

text:
    597 A.2d 714
    COMMONWEALTH of Pennsylvania v. Kenneth COBB, Appellant.
    Superior Court of Pennsylvania.
    Argued April 2, 1991.
    Filed Oct. 10, 1991.
    Robert A. Berry, Harrisburg, for appellant.

      Kathy G. Wingert, Deputy Dist. Atty., Harrisburg, for Com., appellee.
    Before JOHNSON, HUDOCK and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from a judgment of sentence entered in the Dauphin County Court of Common Pleas. For the reasons that follow, we vacate the judgment of sentence and remand for a new trial.

In this case, the Commonwealth sought to prove that appellant Kenneth Cobb had assaulted Ms. Bonnie M. Rogers. At trial, the alleged victim testified that appellant punched her in the face after she demanded one hundred dollars ($100.00) from him. Ms. Rogers explained that she had previously driven appellant to Philadelphia to obtain drugs in exchange for the aforementioned sum. According to Ms. Rogers, appellant broke her jaw in two places, causing profuse bleeding, severe pain and swelling and necessitating surgery.

On December 12, 1989, a jury found appellant guilty of simple assault. Subsequently, appellant’s post-trial motions were denied and he was sentenced. This appeal followed.

While appellant raises seven issues for our review, we need only address appellant’s claim concerning the lower court’s restricting his cross-examination of a Commonwealth witness because our grant of a new trial based on this issue. Specifically, appellant argues that the lower court erred in refusing to allow him to question the alleged victim about a capias issued for her arrest. Appellant maintains that this evidence was admissible to show the witnesses’ potential bias. We agree.

With regard to such inquiries, our Supreme Court has stated as follows:

whenever a prosecution witness may be biased in favor of the prosecution because of outstanding criminal charges or because of any non-final criminal disposition against him within the same jurisdiction, that possible bias, in fairness, must be made known to the jury. Even if the prosecutor has made no promises, either on the present case or on other pending criminal matters, the witness may hope for favorable treatment from the prosecutor if the witness presently testifies in a way that is helpful to the prosecution. And if that possibility exists, the jury should know about it.
The jury may choose to believe the witness even after it learns of actual promises made or possible promises of leniency which may be made in the future, but the defendant, under the right guaranteed in the Pennsylvania Constitution to confront witnesses against him, must have the opportunity at least to raise some doubt in the mind of the jury as to whether the prosecution witness is biased. It is not for the court to determine whether the ■ cross-examination for bias would affect the jury's determination of the case.

Commonwealth v. Evans, 511 Pa. 214, 224-25, 512 A.2d 626, 631-32 (1986) (footnote omitted). In such an instance, however, the possibility of motive or bias must be more than mere speculation. Commonwealth v. Mines, 321 Pa.Super. 529, 533, 468 A.2d 1115, 1117 (1983). In sum, “[tjhere must be a logical connection between the facts to be proven and the inference to be drawn from the facts.” Commonwealth v. Gay, 369 Pa.Super. 340, 343, 535 A.2d 189, 190 (1988) (citation omitted).

While cross-examining Ms. Rogers, appellant attempted to prove that a warrant had been issued for the witnesses’ arrest in a separate matter. In sum, appellant hoped to show possible bias on the part of Ms. Rogers: under this theory, appellant sought to demonstrate that Ms. Rogers testified in a manner helpful to the prosecution with the hope that she might later receive favorable treatment from the Commonwealth. Accordingly, in light of Evans, supra, and its progeny, we are required to conclude that this evidence was relevant and that the lower court erred in refusing to permit its introduction.

Reversed and remanded for a new trial. Jurisdiction is not retained.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting.

I agree that trial defense counsel was entitled to cross-examine Bonnie M. Rogers, the victim/witness, as to her inconsistent and contradictory statements. I also agree that Rogers could be cross-examined as to whether she was subject to prosecution for the purpose of establishing possible bias due to any outstanding charges. However, I believe that adequate cross-examination occurred on the particular facts of this case and that the error, if any, in limiting cross-examination was harmless. Therefore, I respectfully dissent.

Kenneth Cobb argues, within subsection C of the Argument portion of his Brief, that cross examination of a prosecution witness relevant to charges pending in an attempt to show bias on the part of the witness is permissible under Pennsylvania law. This is clearly correct. Commonwealth v. Hill, 523 Pa. 270, 566 A.2d 252 (1989); Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986). Although Cobb makes reference to “pending charges” against the witness, Rogers, my review of the entire certified record does not confirm what charges, if any, were, in fact, pending against the witness. Apart from the incomplete question put to the witness during cross-examination, which is set forth below, and some undocumented statements by defense counsel during a discussion after the jury had been excused at the end of the first trial day, see Transcript of Proceedings, December 11, 1989, pages 124-126, the only reference in the record to any alleged charges appears in Cobb’s Motion in Arrest of Judgment and for New Trial filed January 19, 1990, wherein Cobb sets forth as one of his assigned reasons:

6. Court erred in failing to allow Defendant to inquire about the victim’s capias, which was withdrawn contemporaneous to trial in this matter, for the purpose of establishing bias.

A critical issue at trial was the credibility of Bonnie Rogers, the victim of the assault and battery. Rogers testified that she had lied in her initial report of the assault against her. When she had detailed the incident both to her mother and to the police, Rogers had not initially implicated Cobb as her assailant, but rather gave a story about an intruder in her apartment. Subsequently, Rogers told another version that implicated Cobb in the assault.

Other Commonwealth witnesses also testified that Rogers had initially told one story which was inconsistent with her testimony at trial. There was no attempt to hide from the jury the clear inconsistencies in Rogers’ stories. With this as backdrop, the following occurred during the cross-examination of Rogers by Nancy E. Goldberg, trial defense counsel:

BY MS. GOLDBERG:
Q. Miss Rogers, is it now true you gave the Harrisburg Police two different stories?
A. Can’t I answer yes and tell why?
Q. You lied, didn’t you?
A. Yes, I lied. I told you I was scared.
Q. You lied to a police officer, correct?
A. Yeah. He isn’t God.
Q. You lied—
MR. RUSSO [Deputy D.A.]: Objection.
THE COURT: We know she told the police two different stories, and we know she originally told her mother some unidentified man assaulted her.
Now, let’s go on to the next area.
BY MS. GOLDBERG:
Q. Isn’t it true that at the time of the incident you had no medical insurance?
A. No, I didn’t.
Q. And you’re living in North Carolina now [?].
A. Yes, I’m living in North Carolina now.
Q. Isn’t it true there is a warrant issued for you—
MR. RUSSO: Objection, Your Honor.
THE COURT: First of all, I don’t see the relevance; and, second of all, I think that is out of line, completely out of line.
MS. GOLDBERG: Your Honor, the relevance would go to her credibility; that she wants favorable treatment from the Commonwealth—
THE COURT: How would that help?
MS. GOLDBERG: That she’s assisting in this case, either pursuant to a plea bargain or—
THE COURT: Well, you can ask her if she has any—
MR. RUSSO: May we approach?
THE COURT: No, no, no.
I’ll sustain the objection.
THE WITNESS: I say it’s none of her—
THE COURT: Hold it, now. We’re getting out of line, here.
I don’t want to know about any other case.
MS. GOLDBERG: Your Honor, for the record, note my objection that I’m not allowed to pursue this line of questioning.
THE COURT: Yes.
Look, we have an aggravated assault. We’re getting into all kinds of things.
All right, let’s go.
BY MS. GOLDBERG:
Q. Are you testifying here today pursuant to some sort of deal with the Commonwealth?
A. No.
Q. You’re testifying here today in expectation of obtaining some favorable treatment from the Commonwealth—
MR. RUSSO: Objection, Your Honor.
A. No. I’m testifying because Kenny did something wrong.
Gee, if he hit you, you would want him to get time, wouldn’t you? My goodness.
THE COURT: All right. That’s it.
THE WITNESS: My God.
BY MS. GOLDBERG:
Q. Isn’t it true after Kenny was arrested you told Tony Cobb, Kenny’s brother, you would drop these charges against Kenny if he’d pay you $600 or get you some cocaine?
A. You know my doctor bill is $9,000? Are you kidding? Would you do that?
Q. Is that true or not?
A. No.
MS. GOLDBERG: Thank you.
I have nothing further.
THE COURT: All right. Redirect.

Transcript of Proceedings, December 11-12, 1989, pages 92-95.

While defense counsel was prevented from asking one question, concerning whether a warrant had been issued for Bonnie Rogers’ arrest, she was indeed permitted to pursue the line of questioning, by inquiring as to whether any deal had been offered to Rogers by the Commonwealth. Defense counsel was also permitted to ask, albeit over the objection of the Deputy District Attorney, whether Rogers was testifying in expectation of obtaining some favorable treatment from the Commonwealth.

Defense counsel further inquired of the witness whether she had offered to drop the criminal charges against Cobb in exchange for $600 or cocaine. Counsel received responses from the witness to all of these questions, all in the presence of the jury. Defense counsel had indicated that her reason for inquiring about the outstanding warrant was to test Rogers’ credibility and to suggest that the witness wanted favorable treatment. Transcript of Proceedings, December 11-12, 1989, page 93. It was after this offer of proof that counsel was indeed permitted to cross-examine concerning any deals with the Commonwealth or any expectation by Rogers of favorable treatment. Id., at page 94.

Nowhere in the record can we determine exactly what conduct by Rogers, if any, may have prompted the issuance of the alleged capias. Trial defense counsel does assert to the trial court, after the conclusion of Rogers’ testimony and at the end of the first day of trial, that there was “the outstanding warrant and that she [Rogers] skipped the state after making bail.” Transcript of Proceedings, December 11-12, 1989, page 124. Attorney Goldberg goes on, however, to apparently inform the court that Rogers was exempt from arrest while in Pennsylvania to testify in the Cobb prosecution. Ms. Goldberg stated to the court:

MS. GOLDBERG: .....
I believe the Commonwealth is going to rely on Section 5965 of the Judicial Code which would exempt her [Rogers] from arrest at this point; however, the fact is she has already been arrested, and she made bail and she left the Commonwealth, and I would like Your Honor to enforce the outstanding capias and have Miss Rogers taken into custody at this time.

Transcript of Proceedings, December 11, 1989, page 125. In response, the Honorable William W. Lipsitt said, in pertinent part:

THE COURT: Anyway, I’m not going to be concerned. If the District Attorney’s Office feels she should be arrested, that’s up to the District Attorney’s Office. Just because she’s a witness against your client does not seem to me to give you the authority to demand she be put in jail.

Id. The court did not accede to defense counsel’s demand that the witness be taken into custody.

The issue before us on this appeal is whether the inability of the defense to ask one specific question concerning the issuance of a capias warrants a new trial, where the record reveals that numerous other questions were asked and answered to place the special interest or credibility of the client before the jury. The cross-examination and recross-examination of this witness, Rogers, spans seventeen pages in the record, Transcript of Proceedings, December 11-12, 1989, pages 84-95, 97-101, and delves into the witness’ medical insurance, her possible deals with the Commonwealth, her expectation of favorable treatment, her false statements to police officers, the implausibility of her second version of what transpired, and her willingness to drop the charges for either cash or cocaine. Two other Commonwealth witnesses testified to the fact that Rogers, the victim, had changed her story. Was the trial court’s sustaining of the single objection to the question concerning whether a capias had been issued of sufficient gravity to compel a new trial, where other relevant questions along the same line were subsequently asked and answered. I would conclude it was not.

I find this case to be similar to Commonwealth v. Sneed, 514 Pa. 597, 526 A.2d 749 (1987), where our Supreme Court refused to find reversible error upon the trial court having sustained an objection to a question on cross-examination as to whether the witness was “really hoping that your bail gets lowered.” In that case, Mr. Justice McDermott, speaking for a unanimous Court, found that the fact relative to the witness’ bail was one with which the jury was familiar through other testimony. Again, in Commonwealth v. Carr, 459 Pa. 262, 328 A.2d 512 (1974), our Supreme Court approved the curtailment of cross-examination aimed at showing bias where the possible bias was otherwise made clear to the jury, thereby rendering any error harmless beyond a reasonable doubt.

As in Sneed and in Carr, I find the record before us establishes that the witness/victim, Bonnie M. Rogers, was exposed to extensive cross-examination and that her inconsistencies and possible bias were, in fact, before the jury. Based upon the entire record, I would find the error, if any, by Judge Lipsitt in sustaining the objection to the single question concerning the unparticularized capias to have been harmless.

Since I also would find the other six issues raised by Cobb to be without merit, I would affirm the judgment of sentence. Accordingly, I respectfully dissent.

      . In his brief, appellant raises the following contentions for our review:
      A. Whether the trial court erred in denying [appellant’s] motion to dismiss based on [the] Commonwealth’s violation of Rule 1100;
      B. whether the trial court erred in denying [appellant’s] motion in limine to prohibit reference[s] to drugs and in making repeated references to drugs;
      C. whether the trial court erred in failing to allow full inquiry into the reasons for the victim’s inconsistent and contradictory statements and [the] victim’s having a capias issued against her;
      D. whether the verdict reached was against the weight of the evidence and contrary to the law;

        E. whether the evidence was insufficient to sustain a verdict;
      F. whether trial judges comments were so prejudicial as to constitute error warranting a new trial;
      G. whether [appellant] was denied effective assistance of counsel.


author: DEL SOLE, Judge:

text:
    597 A.2d 718
    ERIE INDEMNITY COMPANY, Attorneys in Fact for Subscribers to Erie Insurance Exchange, Appellee, v. Gail McGAUGHEY, Appellant.
    Superior Court of Pennsylvania.
    Argued May 14, 1991.
    Decided Oct. 8, 1991.

      Joseph J. May, Erie, for appellant.
    Steven E. Riley, Jr., Erie, for appellee.
    Before CAVANAUGH, DEL SOLE and CERCONE, JJ.
   DEL SOLE, Judge:

This appeal calls into question the trial court’s ruling in favor of Appellee, insurance company, on a Summary Judgment Motion in a declaratory judgment action. The court’s determination that the limits of underinsured motorist coverage on two automobiles insured under one policy could not be “stacked” to exceed the limits of third-party personal injury liability coverage of that policy is before us for review. After an examination of the prior case law in this Commonwealth, the relevant statutes and the purposes behind the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. §§ 1701 et seq. (hereinafter the “MVFRL”), we conclude that the trial court’s decision must be reversed and that underinsurance coverage limits applicable to more than one vehicle may be “stacked” so as to provide coverage in excess of the third-party liability limits of the same policy.

The underlying action was precipitated by an automobile collision in which Appellant, Gail McGaughey, suffered serious personal injuries when her vehicle was struck from behind by another. After settling an action for the policy limits against the driver who struck her, Ms. McGaughey advised her own carrier of her intentions to present a claim for the underinsured motorists benefits of her policy. Ms. McGaughey had in effect a policy of motor vehicle insurance issued by Erie Insurance Exchange, Appellee, which covered two vehicles which she owned. The policy provided bodily injury liability limits of $25,000/$50,000 and underinsured motor vehicle coverage of $25,000/$50,000 applicable to each vehicle per accident. The trial court found that the policy also contained a provision which disallowed the stacking of underinsured motorist benefits. Ms. McGaughey’s parents had a separate policy of insurance with Erie covering four vehicles which they owned. Ms. McGaughey contended that at the time of the accident she was a resident of her parents’ household and thus entitled to benefits under that policy as well.

Erie filed a declaratory judgment action arguing that its policy provisions and section 1736 of the MVFRL, 75 Pa.C.S.A. § 1736, preclude the stacking of underinsurance coverage when such coverage will exceed the third-party liability limits of the same policy. Section 1736 provides:

The [uninsured and underinsured] coverages provided under this subchapter may be offered by insurers in amounts higher than those required by this chapter but may not be greater than the limits of liability specified in the bodily injury liability provision of the insured’s policy.

In considering Appellant’s ability to stack her underinsurance motorist benefits in such a manner that they exceed the third party liability limits of the same policy, the court noted that this legal issue would be applicable to the claims at hand and, in the event arbitrators decided that Ms. McGaughey is covered by her parents’ policy, to that policy as well. In ruling on the Motion for Summary Judgment the trial court determined that the policy provisions, which it interpreted to disallow stacking of underinsured motorist benefits, were not contrary to the provisions of the MVFRL. Relying upon the reasoning of a federal case, Chartan v. Chubb Corporation, 725 F.Supp. 849 (E.D.Pa.1989), the court concluded that stacking underinsured motorist benefits in excess of liability limits would be contrary to the plain language of the MVFRL, violative of the legislative intent behind the statute and contrary to related appellate authority on the subject.

We initially note that the decision relied upon by the trial court, Chartan v. Chubb Corporation, Id. was recently reversed by the United States Court of Appeals for the Third Circuit. Chartan v. Chubb Corporation, 937 F.2d 596 (3rd Cir.1991). Independent of that ruling and guided instead by our prior interpretation of the MVFRL and its purpose, we nevertheless conclude that the trial court erred in ruling that this law limits the amount of underinsured motorist benefits which can be recovered.

The underinsured motorist provisions of the MVFRL and the ability of a claimant to stack such benefits was most recently analyzed by this court in Tallman v. Aetna Casualty and Surety Company, 372 Pa.Super. 593, 539 A.2d 1354 (1988). Therein we held that a provision purporting to prevent stacking of underinsured motorist coverage was void as repugnant to the MVFRL. The Tallman court, while permitting stacking to the extent of damages, was not faced with the question presently before us since there the stacked underinsured motorist coverage was not greater than the liability coverage on the vehicle involved in the accident. However, the rationale provided by the Tallman court is equally applicable to determine whether § 1736 would require a different result by limiting recovery and preventing stacking in excess of the liability coverage.

The Tallman court first examined the policies underlying the predecessors to the MVFRL. It noted the purpose behind the policy allowing for the stacking of uninsured benefits under the Uninsured Motorist Act, 40 Pa.S.A. § 2000, which was stated to be to “provide protection to innocent victims of irresponsible drivers.” Harleysville Mutual Casualty Co. v. Blumling, 429 Pa. 389, 241 A.2d 112 (1968). Also relied upon was a second well recognized justification: to ensure that intended beneficiaries receive multiple coverage when multiple premiums have been paid. See Utica Mutual Insurance Company v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984). The court concluded that these same policies were applicable to the MVFRL and proved useful in interpreting the intent of the legislature.

Finally, the court examined the provisions of the MVFRL. It remarked on the fact that the legislature chose to include uninsured benefits with underinsurance benefits in the same section and neglected to prohibit stacking of benefits when it was well aware that stacking was ruled recoverable under the preceding Act. The fact that such a prohibition was expressly included with regard to first party benefits in § 1717 was deemed by the court to be intentional and provided further support for the conclusion that the stacking of underinsured motorist benefits was contemplated in the MVFRL.

The specific provisions of § 1736 were examined only in relation to a claim made by the appellant which suggested that § 1736 sets forth a formula for a determination of maximum benefits recoverable under underinsurance coverages. The appellant reasoned that such a limitation required that the MVFRL be treated like work-loss benefits under the No-Fault Act which an insurer could elect not to have stacked by means of including such a provision clearly in an insurance contract. See Antonovich v. Allstate Insurance Company, 507 Pa. 68, 488 A.2d 571 (1985). The Tollman court rejected this reasoning and instead held that the MVFRL does not place a ceiling on the amount of underinsurance a victim may recover. The court noted that § 1736 provides that an insured may obtain uninsured and underinsured coverages in amounts equal to, but not greater than, the amount of liability coverage, but this provision does not limit the amount of underinsurance coverage which can be provided. The rationale for such a provision, which was expressed in Wolgemuth v. Harleysville Mutual Insurance Company, 370 Pa.Super. 51, 535 A.2d 1145 (1988) and which is referred to by the Tallman court, is offered by Erie in this case as evidence that stacking to receive benefits in excess of liability limits is not permitted under the MVFRL. The stated rationale for such a provision indicates that it was designed to “prevent an insured from providing greater coverage, via uninsured/underinsured coverages, for himself and his additional insureds than the amount of coverage he provides for others injured through his negligence.” Tallman v. Aetna Casualty and Surety Company, supra, 372 Pa.Super. at 602, 539 A.2d at 1358-1359.

Section 1736 does not directly or impliedly prohibit or restrict the stacking of underinsurance motorist benefits. It does, however, fulfill the stated purpose of ensuring that others injured by an insured’s negligence are afforded coverage equal to the underinsured motorist coverage limits in the insured’s policy. This purpose is not frustrated by allowing the stacking of underinsured motorist benefits which the insured has purchased for more than one vehicle. Section 1736 places a cap on the amount of uninsured and underinsured motorist coverage that can be purchased in a single policy at the policy’s bodily liability coverage limit. Although uninsurance and underinsurance coverage in any one policy cannot exceed the liability coverage of that policy, it does not follow that the coverage purchased for separate vehicles, for which added premiums are paid, cannot be added together by the insured to provide full compensation for the injuries suffered.

Stacking of underinsured motorist coverage to compensate insureds to the extent of their damages is in keeping with the liberal compensatory scheme which the Tallman court relied upon in reaching its decision. Further, it is in accord with the principle of affording those who have paid multiple premiums to receive multiple coverage up to the extent of their damages. Thus, those who purchase coverage for more than one vehicle, and pay additional premiums would be entitled to collect what they had purchased— multiple coverage. Fairness dictates that such coverage, charged by the insurer and paid for by the insured, be available to meet the insured’s needs. Section 1736 cannot be construed to nullify this coverage. As noted by the Tallman court, the legislature which drafted a specific provision prohibiting the stacking of first party liability coverage was well aware that it could expressly prohibit stacking of uninsured and underinsured motorist coverage if it had such an intent; yet, it did not. Our reading of § 1736 does not include any express or implied limitation on stacking.

Further persuasive evidence that the legislature did not intend to limit the stacking of underinsured motorist benefits can be found in the recent amendments to the MVFRL which became effective July 1, 1990. A newly enacted § 1738(a) provides that the “limits of coverage available under this subchapter shall be the sum of the limits for each motor vehicle as to which the injured person is an insured.” Subsection (b) provides for reduced premiums in the event an insured should choose to waive the right to stack coverages. Although this section is inapplicable to the present case, it bolsters the conclusion that the legislature did not intend for § 1736 to limit the stacking of underinsured motorist benefits. The legislature, which has directly addressed stacking in the newly enacted § 1738 in conformity with our interpretation of the MVFRL, did not make any amendments to § 1736. Thus, it appears the legislature did not find the two provisions to be inconsistent.

In view of the express provisions of the MVFRL and the prior cases which have interpreted it to determine its purpose, we conclude that underinsurance motorist coverage limits may be stacked so to provide full recovery for damages sustained by an insured. Section 1736 which regulates the basic, per vehicle limits of insurance sold, has no impact on the established law of this Commonwealth affording insureds the unrestricted stacking of underinsured motorist benefits to the extent of their damages. A policy provision which provides otherwise, and requires payment for additional coverage, is contrary to the intent of the MVFRL and, as stated in Tallman “void as repugnant to and in derogation of the purpose and policy of the MVFRL.” Tallman v. Aetna Casualty and Surety Company, supra, 372 Pa.Super. at 602, 539 A.2d at 1359.

Order awarding Summary Judgment is reversed. Jurisdiction relinquished.

      . In view of our determination that the MVFRL provides for the unrestricted stacking of underinsured motorist benefits, we need not examine the trial court’s conclusion that the policy at issue specifically disallows stacking.