author: BROSKY, Judge.

text:
    672 A.2d 1324
    Bruce MANGUM, Appellant, v. PENNSYLVANIA FINANCIAL RESPONSIBILITY ASSIGNED CLAIMS, Claims Plan and Constitutional State Service Company and Alan C. Newton.
    Superior Court of Pennsylvania.
    Argued Oct. 26, 1995.
    Filed Feb. 9, 1996.
    Reargument Denied April 9, 1996.

      Alan R. Harris, Philadelphia, for appellant.
    Joseph Juliana, Lansdale, for PA Financial & Constitution State Service Company, appellees.
    Marie A. Fritzinger, Philadelphia, for Alan C. Newton, appellee.
    Before McEWEN, SAYLOR and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from the final order of the trial court which granted appellees’ post-trial motions and entered judgment in favor of appellees. For the reasons set forth below, we affirm.

Before addressing appellant’s claims, we will briefly recount the pertinent facts of this case. Appellant, Bruce Mangum, drove a friend’s car in the City of Philadelphia during the early evening hours of March 14, 1990. Appellant traveled in an eastbound direction on Adams/Whittaker Avenue until he reached Roosevelt Boulevard, where he intended to turn northward onto the highway. Appellant proceeded into the intersection and was struck by a vehicle driven by Alan Newton. As a result of the crash, appellant sustained injuries to his knees, shoulder and back which were subsequently treated by his family physician.

Mr. Newton’s vehicle was uninsured at the time of the collision. In addition, appellant neither owned a motor vehicle nor lived with someone who owned a vehicle. Consequently, appellant filed a claim under the Pennsylvania Financial Responsibility Assigned Claims Plan (“ACP”), which denied benefits.

Appellant thereafter instituted suit against the ACP and its designated servicing agent, Constitution State Service Company (“CSSC”). ACP and CSSC joined Alan Newton as an additional defendant. Appellant also commenced a separate tort action against Mr. Newton. The case against appellees, ACP, CSSC and Mr. Newton, was initially tried before a panel of arbitrators, who found for appellant in the sum of $12,-093.95. Appellees timely appealed.

Approximately ten days before trial, appellant requested a continuance because his treating physician, Dr. Fabian, was unavailable to testify due to the acute illness of his parents, who resided in Michigan. Appellant’s motion was denied. A nonjury trial was held following which the trial judge found in favor of appellant and likewise assessed damages in the sum of $12,093.95.

Appellees timely filed post-trial motions. While these motions were pending, the trial judge died and the case was assigned to another judge for disposition. The reviewing court sustained appellees’ post-trial motions and entered judgment in their favor. Appellant timely appealed therefrom.

Appellant presents the following issues for our review: (1) whether the trial judge abused his discretion by denying appellant’s motion for a continuance due to his expert medical witness’ unavailability; and (2) whether the trial court erred in granting appellees’ motion for judgment notwithstanding the verdict. We will address appellant’s claims in reverse order, as we deem his second issue to be dispositive.

When an appellate court reviews the entry of an order granting judgment non obstante veredicto the evidence must be reviewed in the light most favorable to the verdict winner, with the benefit of every reasonable inference being resolved in his favor. Judgment n.o.v. may be entered if the movant is entitled to judgment as a matter of law and/or if the evidence is such that no two reasonable minds could disagree that the verdict would be in favor of the movant.

Boettger v. Miklich, 534 Pa. 581, 585 n. 2, 633 A.2d 1146, 1148 n. 2 (1993) (emphasis in original). Accord Shaw v. Kirschbaum, 439 Pa.Super. 24, 28, 653 A.2d 12, 14 (1994), allocatur denied, 541 Pa. 652, 664 A.2d 542 (1995). We also note that our:

scope of review is limited when examining the decision of a trial court sitting as fact finder---- [T]he findings of a trial court sitting without a jury have the same force and effect on appeal as a jury’s verdict. We will reverse the trial court only if its findings are predicated upon an error of law or are unsupported by competent evidence in the record. On review, it is not within our province to find facts or to substitute our judgment for that of the trial court. Moreover, the trial court is free to believe all, part, or none of the evidence that is presented, to make all credibility determinations, and to resolve any conflicts in the evidence.

Hodges v. Rodriguez, 435 Pa.Super. 360, 366, 645 A.2d 1340, 1343 (1994). Accord Alberici v. Safeguard Mutual Insurance Co., 444 Pa.Super. 351, 356, 664 A.2d 110, 113 (1995). We will evaluate both the trial and reviewing judges’ determinations in accordance with these principles.

Appellant sought benefits pursuant to the assigned claims plan provisions of the Motor Vehicle Financial Responsibility Law (“MVFRL”), 75 Pa.C.S.A. § 1751-§ 1757. The purpose of the assigned claims plan is to provide limited benefits to those individuals who are injured in a motor vehicle-related accident who, through no fault of their own, have no other available source of insurance coverage. Pennsylvania Financial Responsibility Assigned Claims Plan v. English, 541 Pa. 424, 664 A.2d 84, 86 (1995) (hereinafter English). Section 1752 delineates the specific requirements which must be met in order for a person to be eligible for these benefits. See 75 Pa.C.S.A. § 1752(a); English, 541 Pa. at 429-431, 664 A.2d at 87. Except for subsection (a)(6), appellant unquestionably satisfies the remaining eligibility criteria. We will therefore focus our analysis on this provision.

Section 1752(a)(6) provides that a person is eligible to recover benefits from the assigned claims plan if he or she “[i]s otherwise not entitled to receive any first party benefits under section 1711 (relating to required benefits) or 1712 (relating to availability of benefits) applicable to the injury arising from the accident.” 75 Pa.C.S.A. § 1752(a)(6). This section thus prohibits an individual who is entitled to receive first party benefits pursuant to another policy of automobile insurance from recovering under the assigned claims plan. Examples of such insurance would be: (1) a policy covering the claimant as a named insured; (2) a policy insuring the claimant as a spouse, relative, child or member of the household; (3) a policy covering the vehicle which the claimant operated or occupied; or (4) a policy covering another vehicle involved in the accident. See 75 Pa.C.S.A. § 1713(a) (identifying the sources of first party benefits policies and the order of priority in which benefits are paid thereunder).

In the context of this case, appellant did not own a motor vehicle at the time of the accident. N.T. 9/13/93 at 7; Brief of ACP/CSSC at 12. He thus had no obligation to purchase a motor vehicle insurance policy. See English, 541 Pa. at 433-434, 664 A.2d at 89 (occupant of vehicle, who did not herself own a motor vehicle which was required to be registered, had no obligation to purchase motor vehicle insurance and, in fact, could not purchase such insurance). It is also undisputed that appellant did not reside with anyone who owned a vehicle for which a policy could be issued. See N.T. 9/13/93 at 11; Brief of ACP/CSSC at 12. Appellees likewise concede that Mr. Newton was uninsured at the time of the accident. Brief of ACP/CSSC at 12. Consequently, the only other conceivable source of insurance from which appellant could obtain first party benefits is a policy covering Ms. Mobley’s vehicle.

With regard to this issue, appellant was asked at trial whether Ms. Mobley’s vehicle was insured. N.T. 9/13/93 at 36-37 and 63. Appellant responded, “[n]ot that I know of.” Id. at 37 and 63. Appellant also attempted to introduce testimony from Marie Bernard, who was employed by appellant’s trial counsel. Id. at 70. According to appellant’s offer of proof, Ms. Bernard would have testified regarding her correspondence with State Farm Insurance Company (State Farm) which indicated that Ms. Mobley was not insured by State Farm. Id. at 70-73. However, appellee’s counsel objected to the proffered testimony on hearsay grounds. Id. at 70 and 73-74. While the record does not contain an explicit ruling on the objection, it does not appear that Ms. Bernard was called to testify, since appellant’s counsel rested his case immediately after completing his offer of proof. Id. at 74. Appellees introduced no evidence on this subject. Therefore, appellant’s testimony constituted the sole evidence pertaining to the existence of insurance on Ms. Mobley’s vehicle.

Appellant’s response, interpreted in a light most favorable to him as verdict winner, indicated that he knew or believed that the car was uninsured. However, appellant admitted on cross-examination that he had not asked questions regarding the car’s insurance status when he borrowed it. Id. at 63. Appellant’s testimony, viewed as a whole, thus indicated that the car could have been insured under a policy of which he had no knowledge. The proposed testimony of Ms. Bernard, even if it were to be considered, similarly offers little guidance as it only would have disclosed that Ms. Mobley’s car was not insured with State Farm at the time of the accident. Again, this evidence leaves open the possibility that the vehicle could have been covered under a policy issued by a different insurer. We therefore conclude that the evidence introduced at trial was inadequate to prove that Ms. Mobley’s vehicle was in fact uninsured at the time of the collision.

As appellant was seeking to recover benefits from the assigned claims plan, he bore the burden of producing a sufficient quantum of evidence demonstrating that there were no policies of insurance from which he could recover first party benefits. In fulfilling his evidentiary burden, appellant was not obligated to contact every insurer who does business in this state to ascertain the insurance status of Ms. Mobley’s car at the pertinent time. He easily could have satisfied his burden of proof by either deposing Ms. Mobley or calling her as a witness at trial. Appellant did not do so. Instead, he chose to rely upon his own testimony which fell woefully short of establishing by a preponderance of the evidence that Ms. Mobley’s vehicle was uninsured. See, e.g., Robinson v. Pennsylvania Assigned Claims Plan, 16 Pa.D. & C.4th 256, 266-267, 270-271 (C.C.P. Philadelphia 1992) (plaintiff-claimant did not satisfy her burden of proof under section 1752(a)(6) where she failed to present any evidence that the vehicle she test-drove was uninsured; plaintiff did not depose the car dealer/owner of the vehicle, call him as a witness or offer any evidence that she had attempted to locate him to ascertain the insurance status of the vehicle); Zubris v. Pennsylvania Assigned Claims Plan, 321 Pa.Super. 83, 91-92, 467 A.2d 1139, 1143 (1983) (plaintiff did not sustain his burden of proof that he neither knew nor had reason to know of the uninsured status of a vehicle for more than two years after the accident where he made only meager efforts to acquire information regarding the existence and scope of coverage).

Because the evidence presented by appellant is, as a matter of law, insufficient to establish his eligibility to recover any benefits from the ACP, the reviewing court properly granted appellees’ motion for judgment notwithstanding the verdict. Lilley v. Johns-Manville, 408 Pa.Super. 83, 91, 596 A.2d 203, 206 (1991), allocatur denied, 530 Pa. 644, 607 A.2d 254 (1992) (where the evidence is insufficient to sustain the verdict, the remedy granted in civil cases is a judgment notwithstanding the verdict). Finding no error or abuse of discretion, we affirm.

Order and Judgment affirmed.

      . Renee Mobley owned the vehicle driven by appellant. Although the car had a Pennsylvania license plate, the record does not indicate whether it was registered when the accident occurred.

      . $5,093.95 was for appellant's medical expenses. Appellant was also awarded $10,000 for pain and suffering. However, this award was reduced by $3,000 because the arbitrators deemed appellant to have been partially negligent in causing the accident. Appellant was thus accorded $7,000 for his non-medical damages.

      . Our decision renders it unnecessary for us to address the remaining allegation of error involving the denial of appellant’s motion for a continuance. Dr. Fabian’s testimony, if obtained, would have addressed appellant’s injuries and the treatment rendered in connection therewith. His testimony was thus only relevant to the issue of damages. Before the damages question can be reached, appellant’s eligibility to recover benefits must first be shown. As discussed above, appellant - failed to prove that he met the requisite criteria and is ineligible to receive any benefits from the assigned claims plan. The question of whether a continuance should have been granted due to Dr. Fabian’s unavailability is therefore moot.
      We likewise need not address the propriety of the alternative grounds relied upon by the reviewing judge in support of his decision to grant appellees' motion for judgment n.o.v. However, we note that the reviewing judge erred to the extent he attempted to reevaluate the credibility and weight of the evidence relating to the causation of the accident. See Hodges v. Rodriguez and Alberici v. Safeguard Mutual Insurance Co., supra (the findings of a trial court sitting without a jury have the same force and effect as a jury's verdict; a reviewing court may not re-examine the weight and credibility determinations made by the trier-of-fact and substitute its judgment for that of the fact-finder). This error nonetheless does not entitle appellant to any relief. See, e.g., Al Hamilton Contracting Co. v. Cowder, 434 Pa.Super. 491, 496, 644 A.2d 188, 190 (1994) (where a lower court has reached the correct result, its order will be affirmed on appeal if it is correct on any legal ground or theory, regardless of the reason or theory adopted by the trial court).


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    672 A.2d 1328
    COMMONWEALTH of Pennsylvania v. James CAMPION, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 26, 1995.
    Filed Feb. 29, 1996.

      Donald E. Lewis, Meadville, for appellant.
    Patrick M. Carey, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before TAMILIA, FORD ELLIOTT and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the judgment of sentence upon appellant’s conviction of rape, statutory rape, indecent assault, and corruption of minors. We affirm.

The lower court accurately summarized the facts of the case:

The appellant was charged with sexually abusing his ten year old adoptive daughter [C.C.]. [footnote: The natural mother, Michelle Campion, was also charged and later convicted of endangering the welfare of a child and corrupting a minor.] He was tried on May 5, 1992, which ended in a mistrial because of a testimonial reference to his prior incarceration. He was tried again on July 6, 1992, which resulted in his conviction of all charges, but which was later reversed by the appellate court on the finding that [the] trial court improperly excluded the notation in the physician’s report that the victim’s hymen had been intact. (Commonwealth v. Campion, Nos. 1491 & 1518 Pittsburgh 1992, slip op. (Dec. 20, 1994)). On October 12, 1994, the Commonwealth filed a Motion to Declare Witness [C.C.] Unavailable. On October 31, 1994, a hearing was held on the Commonwealth’s motion, and on November 3, 1994, the court granted said motion in its Opinion and Order. On November 8, 1994, the appellant was tried by a jury of his peers and was found guilty of rape, statutory rape, indecent assault and corrupting a minor. On December 6, 1994, the court sentenced the appellant to a period of incarceration of to 5 years on corruption of minors, 10 to 20 years on rape, and 5 to 10 years on statutory rape. The indecent assault charge merged for sentencing, and all sentences ran consecutively.

On the same date the appellant filed a Notice of Appeal____ Trial Court Opinion, March 13, 1995, at 1-2. Appellant raises the following issues on appeal:

1. Whether the court erred factually in determining that C.C. was unavailable for trial, thereby allowing her prior testimony to be introduced in lieu of live testimony?
2. Whether the court’s determination that C.C. was unavailable to testify was legally incorrect?'
3. Whether the trial court erred in refusing appellant’s request for psychological evaluation done by defense witness?
4. Whether the trial court erred by sentencing the defendant to a more severe sentence upon retrial than when he was initially sentenced?
5. Whether the trial court’s sentence, which extended beyond that suggested by the sentencing guidelines for the aggravated range for the crimes for which the defendant was convicted, was vindictive and as such an abuse of discretion of the sentencing court?

We will address these issues in order.

Appellant first contends that the trial court erred, both factually and legally, in determining that the victim was unavailable to testify at trial. The right of a defendant to confront an adverse witness is not absolute and must occasionally give way to considerations of public policy and the necessities of the case. Commonwealth v. Melson, 432 Pa.Super. 1, 637 A.2d 633 (1994), appeal denied, 538 Pa. 633, 647 A.2d 509 (1994). Where the prosecution establishes that a witness is unavailable, hearsay evidence is admissible provided that it is sufficiently reliable. Id. at 9, 637 A.2d at 637. “The test for unavailability is whether the prosecution has made a good faith effort to produce the live testimony of the witness.” Id. at 11, 637 A.2d at 638 (emphasis omitted). “The length to which the prosecution must go to produce the testimony is a question of reasonableness.” Id.

In the instant case, the victim had testified as to the events underlying the charges, in the presence of appellant, on four prior occasions: a preliminary hearing on October 30, 1991; a criminal trial on May 5, 1992 which resulted in mistrial; a criminal trial on July 6, 1992, which on appeal resulted in the award of a new trial; and a hearing on the involuntary termination of appellant’s parental rights. If called to testify in the current prosecution, the victim would have had to testify against the appellant for a fifth time. Because of these circumstances, the Commonwealth filed a motion to have the victim, who was thirteen years old at the time of the instant trial, declared unavailable. In support of its motion, the Commonwealth presented the testimony of a clinical child psychologist, James P. Schierberl, Ph.D. The trial court granted the Commonwealth’s motion, finding as follows:

In this case the Commonwealth, having dealt with the witness on a number of prior occasions, being aware of the nature and severity of the allegations, and having access to her prior history and knowledge of her tender age and tenuous familial and social status, legitimately and reasonably discussed a psychological evaluation with her guardian which resulted in a subsequent referral to Dr. Schierberl. The Commonwealth’s concerns were justified and the Commonwealth was bound to the outcome of the independent evaluation whatever it may have been. So because the lengths to which the prosecution must go to produce the live testimony of a witness is a question of reasonableness, the Court concludes that the Commonwealth has met that standard ....
Wherefore, the Court accepts the testimony of Dr. Schierberl as credible, and his reports which have been admitted into evidence in their entirety, and concludes that the child witness will be severely, significantly, permanently and irreparably emotionally and/or psychologically harmed if forced to testify in this matter against the defendants, her stepfather and natural mother, for a fifth time, and declare her to be legally unavailable. The Commonwealth, therefore, may use a transcript of her prior testimony from either the criminal trial of May 5, 1992 or July 6, 1992 in lieu of live testimony.

Trial court opinion, November 3,1994, at 6-7.

We have reviewed Dr. Schierbel’s reports and his testimony at the hearing on the Commonwealth’s motion, and we find no error in the lower court’s interpretation of the doctor’s findings. Similarly, we find no legal error in the trial court’s determination. The admission and exclusion of evidence is within the sound discretion of the trial judge. Commonwealth v. Jackson, 336 Pa.Super. 609, 486 A.2d 431 (1984). In Commonwealth v. Stasko, 471 Pa. 373, 370 A.2d 350 (1977), the trial court admitted the videotape deposition of an eyewitness to the crime. The witness’ physician had reported that she (the witness) had had numerous abdominal surgeries and opined that the strain of appearing at the trial would greatly aggravate her condition. Id. at 378, 370 A.2d at 352-53. Under these circumstances, the Pennsylvania Supreme Court affirmed the trial court’s admission of the videotaped deposition. Id. at 382, 370 A.2d at 355.

In the instant case, the trial court had before it the testimony of Dr. Schierberl who opined that to require the victim to testify for a fifth time against appellant would push her beyond her capacity to cope, would endanger her personal/social adjustment and would place her at high risk of developing serious behavioral problems. Under Stasko, this was a sufficient basis upon which to find the child/victim unavailable.

We note further that since the filing of the appeal in this case, section 9, Article I of the Pennsylvania Constitution, relating to the rights of an accused in a criminal proceeding, has been amended. No longer does the accused have the right to meet the witnesses “face to face.”. The amended section 9 provides that the accused has the right “to be confronted with the witnesses against him.” Pa. Const. art. I, § 9 (amended 1995). An additional amendment has been added to the text of section 9, as follows:

Notwithstanding the provisions of this section, the General Assembly may by statute provide for the manner of testimony of child victims or child material witnesses in criminal proceedings, including the use of videotaped depositions or testimony by closed-circuit television.

Id. It is apparent that the amendment allows for flexibility in the manner in which an accused is confronted by a child witness, apparently in recognition of the special sensitivities of children in such situations.

The instant case involves a child who was not just a potential witness, but who had been a witness against appellant in three criminal proceedings and one civil action. The child’s testimony from the prior criminal proceedings, including two trials and one preliminary hearing, was available. Such prior testimony, which possessed the guarantees of opportunity to cross-examine and reliability, is admissible when a witness is unavailable. Commonwealth v. Melson, supra. In this case, the trial court did not err or abuse its discretion in determining the child’s unavailability for a fifth round of testimony. Thus, appellant’s first two contentions on appeal must fail.

Appellant’s next argument is that the trial court erred in refusing his request for a continuance to obtain another psychological evaluation of the victim. A trial court has broad discretion to grant or deny a request for continuance, which will not be disturbed on appeal absent an abuse of discretion. Commonwealth v. Sal-Mar Amusements, Inc., 428 Pa.Super. 321, 630 A.2d 1269 (1993). The trial court discussed this issue in its opinion of March 13, 1995, at pages 3-5. We have reviewed appellant’s contentions in light of the certified record, and find no merit to them. The lower court’s opinion on this issue is well-reasoned, and we rely on it for our disposition of this claim.

Appellant next contends that the trial court erred by sentencing him to a more severe sentence on retrial than his original sentence. Appellant also asserts that the sentence imposed, which was beyond the aggravated range of the guidelines, was vindictive and therefore an abuse of discretion by the lower court.’ Appellant’s original sentence, imposed August 20, 1992, was for a total of twelve and one-half to twenty five years: two and one-half years for corruption of minors, and a consecutive term of ten to twenty years for rape. This sentence was vacated by the Superior Court because the panel found error in the trial court’s exclusion of certain evidence at trial. The trial court did not reach the issue raised by the Commonwealth on cross-appeal, ie., whether it was error for the lower court to consider appellant’s conviction for statutory rape merged with his conviction for rape for sentencing purposes. The panel noted, however, that the Pennsylvania Supreme Court has held that forcible rape and statutory rape do not merge into a single offense. Commonwealth v. [James] Campion, Nos. 1491 and 1518 Pgh. 1992, filed December 7, 1992 (mem.), citing Commonwealth v. Hitchcock, 523 Pa. 248, 565 A.2d 1159 (1989). After appellant was re-tried and again convicted, the trial court sentenced him on December 6, 1994, to an aggregate term of seventeen and one-half to thirty-five years: two and one-half years for corruption of minors, ten to twenty years for rape, and five to ten years for statutory rape, with sentences to run consecutively.

Appellant argues, relying on North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), that the due process clause of the Fifth Amendment precluded the trial court from imposing a greater sentence than originally imposed. In Pearce, the United States Supreme Court held that “vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” Id. at 725, 89 S.Ct. at 2081, 23 L.Ed.2d at 669.

In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.

Id. at 725-26, 89 S.Ct. at 2081, 23 L,Ed.2d at 670. Subsequently, the United States Supreme Court clarified the language in Pearce, holding that it “was never intended to describe exhaustively all of the possible circumstances in which a sentence increase could be justified.” Texas v. McCullough, 475 U.S. 134, 141, 106 S.Ct. 976, 980, 89 L.Ed.2d 104, 112 (1986). The presumption of vindictiveness in Pearce may be overcome only by objective information justifying the increased sentence. Id. at 142,106 S.Ct. at 981, 89 L.Ed.2d at 113. The Constitution does not require a judge to ignore objective information justifying the increased sentence. Id.

In the instant case, the trial court provided its reasons for the increase in sentence in its opinion of March 13, 1995, at 7-10. Those reasons include the fact that the lower court had mistakenly found that the rape and statutory rape convictions merged for sentencing purposes. As we have indicated, the Superior Court in the prior appeal noted that these offenses should not have merged for sentencing. The lower court stated its reasons for the increase in sentence at the sentencing hearing of December 6, 1994. N.T. 12/6/94, at 10-11. Certainly, these factors constitute “objective information justifying the increased sentence.” Texas v. McCullough, supra. Thus, the due process clause was not offended by the increased sentence.

Appellant’s last contention is that the sentence imposed, which was greater than the aggravated range of the sentencing guidelines, was erroneous because the reasons stated by the trial court for imposing the sentence were the same factors which are incorporated into the guidelines’ recommended mínimums. Sentencing is a matter vested in the sound discretion of the trial court whose judgment will not be disturbed on appeal absent an abuse of discretion. Commonwealth v. Green, 494 Pa. 406, 431 A.2d 918 (1981); Commonwealth v. Meo, 362 Pa.Super. 328, 524 A.2d 902 (1987), appeal denied, 516 Pa. 632, 533 A.2d 91 (1988). Appellants’ claim challenges the discretionary aspects of his sentence. As such, appellant was required to file a separate statement of the reasons for the allowance of appeal in his appellate brief. Pa.R.A.P., Rule 2119, 42 Pa.C.S.A. Appellant has failed to do so, but appellee has not objected to this defect. Because of this failure to object and because our ability to review the matter is not precluded by appellant’s failure, we will consider the claim.

“While deviation from the guidelines is permitted, the Sentencing Code requires that the court place of record its reasons for such deviation.” Commonwealth v. Byrd, 441 Pa.Super. 351, 356, 657 A.2d 961, 963 (1995) (citations omitted). This requirement is satisfied when the judge states his reasons for the sentence on the record and in the defendant’s presence. Commonwealth v. Munson, 419 Pa.Super. 238, 615 A.2d 343 (1992); Commonwealth v. Dotter, 403 Pa.Super. 507, 589 A.2d 726 (1991), appeal denied, 530 Pa. 639, 607 A.2d 249 (1992).

The trial court, in imposing sentence herein, stated the following on the record:

The Court has considered the Pennsylvania Sentencing Code, the Presentence Report, the Pennsylvania Guidelines on Sentencing. And the Guidelines' on Sentencing for the charge of corruption suggests ranges, standard of zero to 12, aggravated at 12 to 18, and mitigated of nonconfinement.
The charge of rape, there is a mandatory minimum five-year sentence. Also the guidelines recommend standard range sentences of 36 to 60 months, 60 to 75 in the aggravated range, 27 to 36 in mitigated range. Statutory rape, standard range is four to 12, aggravated range is 12 to 18, mitigated range is two to four.
The Court has also considered the statements of defense counsel, the defendant and the attorney for the Commonwealth. Court has considered this defendant’s age, background, character and rehabilitative needs, the nature, circumstances and seriousness of the offenses and the protection of the community as well as the impact of the offenses upon the victim.
The Court would note, first of all, that the acts the defendant is accused of and has been convicted of occurred on more than one occasion over a period of approximately three years. They occurred at the time the defendant was in a caretaker position over his adopted stepdaughter who was of the tender age, ages between six and nine at the time of the offenses.
The acts have left severe, significant and probably permanent emotional and psychological scars upon the victim. And the defendant has shown absolutely, totally and completely no remorse for what he has done. The defendant also has, as the evidence showed during the trial, fled the jurisdiction when he became aware the charges were imminent. He attempted to intimidate, and did, the victim to change her story on at least one occasion. And the defendant obviously is a clear and present danger to the community at the present time.
The Court also finds that under the circumstances any lesser sentence than those imposed by this Court would diminish the seriousness of the offenses that have been committed.

N.T. 12/6/94 at 8-10. We think it is clear that the lower court’s reasons incorporate additional factors other than those already implicit in the sentencing guidelines. Because the lower court stated adequate reasons for deviation from the sentencing guidelines on the record and in the defendant’s presence, we find no abuse of discretion in the sentence imposed.

Judgment of sentence affirmed.

      . Because of the nature of the offenses in the instant case, we will refer to the victim by her initials only.

      . The trial court discussed Dr. Schierberl’s findings in its opinion of November 3, 1994, at pages 3-5. The trial court found, inter alia, that:
      Dr. Schierberl testified consistent with his report, ... that to require the child to testify against her parents in this matter once again would likely push her beyond her coping capacity. Once this breakdown occurred her behavior would become aggressive, oppositional and/or delinquent, leading to disruptions and dysfunctions in her already complex and tenuous extended family relationships. This turmoil would cause a very high risk of family crisis of such acute proportions that the child would either run away or have to be placed out of her family.

        Id. at 4.


author: WIEAND, Judge: OLSZEWSKI, Judge,

text:
    672 A.2d 1335
    Andrea BRUCK, Individually And On Behalf of All Others Similarly Situated, Appellant, v. PENNSYLVANIA NATIONAL INSURANCE COMPANIES, Individually And On Behalf Of All Others Similarly Situated, Appellee.
    Superior Court of Pennsylvania.
    Argued June 21, 1995.
    Filed March 5, 1996.
    Reargument Denied May 1, 1996.

      Edwin P. Smith, Philadelphia, for appellant.
    Andrew J. Gallogly, Philadelphia, for appellee.
    Before CAVANAUGH, WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge:

On January 22, 1991, Andrea Brack made an application to Pennsylvania’s Assigned Risk Plan for motor vehicle insurance in which she selected and paid for the full tort option. Brack’s application recited her occupation to be “student”; and, it is contended, Brack advised that she was a college student who would be traveling regularly between Pennsylvania and New Jersey to attend classes. After Brack’s application had been processed in the normal course, the Plan designated the defendant, Pennsylvania National Insurance Companies (PNI), to issue a policy of insurance to Brack. PNI issued a motor vehicle insurance policy to Brack which reflected her affirmative election of the “full tort option.” While this policy was in effect, on November 2, 1991. Brack’s vehicle was struck in New Jersey by a New Jersey resident. The New Jersey tortfeasor’s insurer denied third party liability to Brack for her alleged soft tissue injuries under New Jersey law. The tortfeasor’s insurer adopted the position that, under New Jersey’s “deemer” statute, a non-resident involved in a New Jersey motor vehicle accident is automatically subject to that state’s tort threshold regardless of the terms of his or her own policy, so long as the non-resident’s automobile insurer is licensed to operate in New Jersey. At all relevant times, PNI was licensed in New Jersey. Brack determined that her injury could not meet New Jersey’s tort threshold; and, therefore, she contends that she is not able to recover the noneconomic damages sustained in the accident from the tortfeasor. See generally: Oswin v. Shaw, 129 N.J. 290, 609 A.2d 415, 427 (1992) (setting forth standard for determining compliance with the tort threshold).

Bruck commenced a class action against PNI on behalf of herself and others similarly situated to recover a portion of the premium paid for the full tort option. She contended that she was entitled to damages due to PNI’s alleged fraudulent misrepresentation that the full tort option form of insurance which she had elected would apply to an accident in New Jersey. Therefore, she believed she would be entitled to “uninsured” motorist coverage under her own policy. On January 18, 1995, prior to ruling on Brack’s motion for certification of class action, the trial court granted summary judgment in favor of PNI. This appeal followed.

Except by special order of the court, no summary judgment may be entered against a putative class until the court has certified or refused to certify the action as a class action. Pa.R.C.P. 1715(a), 42 Pa.C.S. No special order has been issued, and the trial court has not ruled upon Brack’s motion to certify the class. Accordingly, the instant summary judgment entered in favor of Pennsylvania National Insurance Companies and against Andrea Brack does not bind the putative class, but is binding upon the named parties only. Canulli v. Allstate Ins. Co., 315 Pa.Super. 460, 467, 462 A.2d 286, 289 (1983).

Our standard of review is limited to determining whether the trial court committed a clear abuse of discretion or an error of law. Chambers v. Aetna Casualty and Surety Co., 442 Pa.Super. 155, 156, 658 A.2d 1346, 1347 (1995). Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1.035(b), 42 Pa.C.S.

Pennsylvania’s Motor Vehicle Financial Responsibility Law (MVFRL) gives a named insured the right to choose between a “limited tort option” and a “full tort option” form of motor vehicle insurance. A limited tort elector may sue for noneconomic damages if he or she has suffered “serious injury” in an automobile accident. Dodson v. Elvey, 445 Pa.Super. 479, 484, 665 A.2d 1223, 1225 (1995) (en banc). Under the full tort option, selection of which carries a higher premium payable to the insurer, the insured maintains an unrestricted right to seek financial compensation for injuries caused by other drivers. 75 Pa.C.S. § 1705(a). Regardless of an individual’s election, whenever the tortfeasor is operating a motor vehicle registered in another state, the full tort option applies. 75 Pa.C.S. § 1705(d)(l)(ii). The right of recovery, however, is made subject to applicable state tort law. 75 Pa.C.S. § 1705(c). Cf. State Farm Mut. Auto. Ins. Co. v. Krewson, 764 F.Supp. 1012 (1991), aff'd, 953 F.2d 1381 (3rd Cir.1992) (enforcing provision of insurance policy which limited recovery to damages that the insured was legally entitled to collect from the tortfeasor.)

The substantive law of New Jersey, as found in that state’s so-called “deemer” statute, see: N.J.Stat.Ann. § 39:6A-8.1, and N.J.Stat.Ann. § 17:28-1.4, requires that non-resident automobile owners who are insured by insurance companies licensed to operate in New Jersey not be allowed to sue for noneconomic damages, if the insured vehicle is used or operated in New Jersey. Dyszel v. Marks, 6 F.3d 116, 120 (3rd Cir.1993). “This is true whether or not the out-of-state insured has full coverage in his or her home state policy, including coverage for non-eeonomie injuries.” Id. Instantly, it is contended that the deemer statute precludes appellant’s recovery of her noneconomic damages from the tortfeasor despite her election of the full tort option under her Pennsylvania policy because PNI is licensed to operate in New Jersey and the accident occurred in New Jersey.

The issue raised by this appeal is distinguishable from previous cases wherein the Superior Court has held that the deemer statute should be read as an endorsement on the subject Pennsylvania policies. See: Allstate Ins. Co. v. McNichol, 420 Pa.Super. 571, 617 A.2d 333 (1992); Smith v. Firemens Ins. Co. of Newark, N.J., 404 Pa.Super. 93, 590 A.2d 24 (1991). See also: DiOrio v. Nationwide Mut. Ins. Co., 17 F.3d 657 (3rd Cir.1994). Those cases concerned first party benefits and were premised upon a finding that application of the New Jersey law afforded a greater level of coverage than the insured otherwise would have received under the minimum requirements of Pennsylvania’s Motor Vehicle Financial Responsibility Law (MVFRL). See: Smith v. Firemens Ins. Co., supra at 98, 590 A.2d at 27. Instantly, for the first time, we consider whether an insurer who lawfully conducts business in Pennsylvania and New Jersey is required to return a portion of the insurance premium paid by a Pennsylvania policy holder who elected the full tort option. We also consider whether such an insurer commits a fraud upon the policyholder when it fails to notify the policyholder that its status as a New Jersey insurer may cause the policy holder to lose his or her legal right to recover noneconomic damages sustained while operating his or her vehicle in New Jersey.

Appellant theorizes that the producer of record for the Assigned Risk Plan was PNI’s agent, that this agent actually knew that appellant travelled regularly to New Jersey because appellant so advised, and that PNI concealed the fact that it was licensed to do business in New Jersey, thereby causing her to pay premiums for coverage not provided. In support, appellant points to two portions of her policy. First, appellant directs us to the policy’s “Notice to Named Insureds”, which states as follows:

“Full Tort” Option — The laws of the Commonwealth of Pennsylvania also give you the right to choose a form of insurance under which you maintain an unrestricted right for you and the members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses and may also seek financial compensation for pain and suffering and other nonmonetary damages as a result of injuries caused by other drivers.

Second, appellant directs us to the following general provision:

POLICY PERIOD AND TERRITORY
A. This policy applies only to accidents and losses which occur:
1. During the policy period as shown in the Declarations; and
2. Within the policy territory.
B. The policy territory is:
1. The United States of America, its territories or possessions;
2. Puerto Rico; or
3. Canada.
This policy also applies to loss to, or accidents involving, “your covered auto” while being transported between their ports.

Appellant contends that these two portions of the policy, when read together, should mean that appellant, who elected the full tort option, had an unrestricted right to seek financial compensation for injuries caused by another driver in an automobile accident which occurred -within the policy territory, necessarily including New Jersey. We observe, however, that the “full tort option” notice as written is mandated by Pennsylvania’s MVFRL. See: 75 Pa.C.S. § 1705. We find nothing unusual or improper in the crafting of the policy’s territory provision.

Nevertheless, we consider whether appellee fraudulently misrepresented the scope of appellant’s eligibility to sue for noneconomic damages by not revealing the fact that it was licensed to do business in New Jersey. Appellant suggests that an insurance company should make such a fact known, particularly where it is the insurance company’s act of acquiring a New Jersey license to do business which makes the deemer statute operative. At the least, appellant argues, appellee should have done so in this case because she expressed an intent to travel regularly to New Jersey. Appellee suggests that the constitutionality of New Jersey’s deemer statute was hotly contested at the time appellee issued the subject policy to appellant. Appellee frames appellant’s contentions as being erroneously tantamount to requiring appellee to give legal advice to its insured. See generally: Dercoli v. Pennsylvania Nat. Mut. Ins. Co., 520 Pa. 471, 554 A.2d 906 (1989) (insurance company liable to insured for providing incorrect legal advice.).

The elements of a cause of action of fraudulent misrepresentation are: (1) a misrepresentation; (2) the fraudulent utterance of it; (3) an intention that the victim will be induced to act on it; (4) justifiable reliance on it; and (5) damage. See: Moser v. DeSetta, 527 Pa. 157, 163, 589 A.2d 679, 682 (1991); Scaife Co. v. Rockwell-Standard Corp., 446 Pa. 280, 285, 285 A.2d 451, 454 (1971).

“In order for a purchaser to [show] that he was induced by fraud or misrepresentation to enter into a contract, it must be shown that there was a misrepresentation of a past or existing material fact.” Laughlin v. McConnel, 201 Pa.Super. 180, 184, 191 A.2d 921, 924 (1963). The concealment of a material fact can amount to culpable misrepresentation, no less than an intentionally false statement. Moser v. DeSetta, supra; Neuman v. Corn Exchange National Bank & Trust Co., 356 Pa. 442, 451, 51 A.2d 759, 764 (1947); Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 108, 464 A.2d 1243, 1252 (1983); Allstate Ins. Co. v. A.M. Pugh Assoc., Inc., 604 F.Supp. 85, 97 (M.D.Pa.1984).

Even though appellant was unaware of a material fact concerning her policy, there is no basis for finding a fraudulent misrepresentation. “Fraud must be established by clear and satisfactory evidence, as it is never presumed.” Laughlin v. McConnel, supra at 183, 191 A.2d at 923. See also: Moser v. DeSetta, supra; Snell v. Pennsylvania State Examining Board, 490 Pa. 277, 281, 416 A.2d 468, 470 (1980). See also: Fort Washington Resources, Inc. v. Tannen, 858 F.Supp. 455, 459 (E.D.Pa.1994). There is here no evidence that appellee in any way induced appellant to accept its policy by fraudulently causing her to believe that she would not be subject to the deemer statute’s substantive limitations. The evidence was that Bruck applied for a policy of motor vehicle insurance through Pennsylvania’s Assigned Risk Plan. Appellee, as a participating insurer in the Plan, did not seek appellant’s business. Moreover, appellant has shown no evidence that she would have refused to accept a policy from appellee had she known the insurer was licensed in New Jersey. Similarly, there is no evidence that she would have selected a limited tort option had she been made aware of appellee’s license to do business in New Jersey. Given the beneficial ramifications of being subject to New Jersey’s deemer statute, it may well be that appellant would have accepted appellant’s policy in any event. Finally, while appellant elected the full tort option and may have expressed her intention to travel regularly to New Jersey, appellant offers no support for her contention that this combination of alleged facts required appellee to make disclosure of its registration to do business in that state. Accordingly, appellant’s evidence is wholly inadequate to demonstrate that appellee intended to defraud appellant and induced her to act on appellee’s alleged misrepresentation. It may be that appellant, because of the confusion surrounding the validity of New Jersey’s statute, did not understand the full effect of the transaction. Not fully understanding the transaction, however, is not the same as being defrauded. Moser v. DeSetta, supra at 164, 589 A.2d at 682. See also: Gabovitz v. State Auto. Ins. Assoc., 362 Pa.Super. 17, 23, 523 A.2d 403, 406 (1987) (knowledge of the law is equally applicable to both parties.)

Appellant also claims that she is entitled to a refund of a portion of the additional premium paid for the full tort option. The evidence, however, in the form of an uncontradicted affidavit is that PNI had no discretion with regard to setting rates with respect to Assigned Risk policies in Pennsylvania; rates were set by the Plan. Moreover, the laws of Pennsylvania do not require that an elector of the full tort option have an absolute right of recovery; recovery is made subject to applicable state tort law. Instantly, appellant does not dispute that the substantive law of New Jersey, where the accident occurred, prevents her from recovering a noneconomic damage claim against the New Jersey tortfeasor. Thus, while appellant professes surprise by this limitation, she is not entitled to a refund of any portion of the premium which she paid to appellee.

The remaining issue in this case is whether appellee should be estopped from denying that the New Jersey tortfeasor is an “uninsured motorist” for purposes of appellant’s recovery under her own policy. “In the absence of expressly proved fraud, there can be no estoppel based on the acts or conduct of the party sought to be estopped, where they are as consistent with honest purpose and with absence of negligence as with their opposites.” Gabovitz v. State Auto Ins. Ass’n, supra. The record fails to reveal any indication that appellee perpetrated a fraud. Accordingly, appellee’s denial of appellant’s claim for uninsured motorist benefits was proper.

An “uninsured motorist” is a motorist “having no insurance,” Davis v. Government Employees Ins. Co., 500 Pa. 84, 89, 454 A.2d 973, 975 (1982) (emphasis omitted), and there is no dispute that the New Jersey tortfeasor was insured. An immune defendant is not an uninsured defendant. Federal Kemper Ins. Co. v. Wales, 430 Pa.Super. 208, 212, 633 A.2d 1212, 1214 (1993). Therefore, we find no merit in appellant’s contention that appellee should be estopped from denying uninsured motorist coverage to appellant.

In this action, appellant claims that her insurance company is liable to compensate her for noneconomic damages caused by another driver while she was operating her vehicle in New Jersey. Appellant claims that she was unable to recover such damages against the other driver under New Jersey’s “deem-er” statute, which became operative solely because her insurance company was licensed to do business in New Jersey. Appellant contends that the fact of appellee’s status as a New Jersey insurer was wrongful!y concealed from her and that she was illegally caused to pay an additional premium for coverage not provided under her policy. Because we have found no evidence of any fraudulent misrepresentation and no overcharge of premium payable under the policy issued in Pennsylvania, we hold that appellant is not entitled to relief. She is, rather, bound by the substantive tort law of New Jersey. Therefore, we affirm the grant of summary judgment entered by the trial court.

Affirmed.

OLSZEWSKI, J., files a dissenting Opinion.

OLSZEWSKI, Judge,

dissenting:

Since I believe that a genuine issue of material fact exists in this case, I am compelled to dissent. Specifically, I find that appellant, Andrea Brack, has succeeded in establishing a prima facie claim for fraudulent misrepresentation. Accordingly, I would remand this case for trial.

In advancing her claim of fraudulent misrepresentation, appellant places significant reliance on the statements she made in her application to appellee, Pennsylvania National Insurance Companies (PNI), through its agent, the Pennsylvania Assigned Risk Plan. In this application, appellant provided notice to PNI that, while she would be living in Pennsylvania during the policy period, she would continue to attend college in New Jersey and that she would, therefore, be travelling regularly between the two states to attend classes. Appellant claims that PNI’s knowledge of her desire to so travel is sufficient, in light of the provisions of her policy such as her election of the full tort option, to require disclosure by PNI of any facts material to limitations on her coverage in New Jersey.

“The trial court will be overturned on the entry of summary judgment only if there has been an error of law or a clear abuse of discretion.” Anderson v. Moore, 437 Pa.Super. 642, 645, 650 A.2d 1090, 1092 (1994). We note, however, that:

when we review the grant of a motion for summary judgment made under Pa.R.C.P. 1035, our scope of review is well-settled: summary judgment is properly granted where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). Summary judgment should be granted only in the clearest case, where the right is clear and free from doubt. The moving party has the burden of proving that there is no genuine issue of material fact. The record and any inferences therefrom must be viewed in the light most favorable to the nonmoving party, and any doubt must be resolved against the moving party.

Id. (citations omitted) (emphasis added).

Employing this standard, I believe that a genuine issue of material fact exists as to whether appellant’s conduct is indeed tantamount to a finding that she informed PNI of her desire to obtain coverage in New Jersey that is equivalent to that she received for Pennsylvania. Clearly, if appellant requested such coverage, she would be entitled to disclosure by PNI of its licensed status in New Jersey since this fact alone would result in her being unable to obtain the requested coverage. See Moser v. DeSetta, 527 Pa. 157, 163, 589 A.2d 679, 682 (1991) (the concealment of a material fact can amount to culpable misrepresentation no less than does an intentional false statement). The majority fails to understand this argument and, thus, places reliance on the finding that “appellant offers no support for her contention that [the] alleged facts required [PNI] to make disclosure of its registration to do business in [New Jersey].” Majority op. at 30.

I believe that the majority’s holding places the insurer in an unnecessarily advantageous position. I find that individuals who have provided information to an insurer regarding their New Jersey coverage requirements, should not receive inferi- or coverage in that state merely because of the operating status of the insurer without the opportunity to receive information from that insurer which would change their decision to purchase the coverage from it.

Based upon the foregoing, I respectfully dissent.

      . The Pennsylvania Assigned Risk Plan is a private entity which is an unincorporated association of insurers. Professional Ins. Agents Assoc. of Pa., Md., and De., Inc. v. Chronister, 155 Pa.Cmwlth. 652, 663-664, 625 A.2d 1314, 1320 (1993), aff'd sub nom., Professional Ins. Agents Assoc. of Pa., Md., and De., Inc. v. Maleski, 539 Pa. 269, 652 A.2d 293 (1994). It was created to ensure that those individuals who could not obtain insurance through ordinary methods would be able to obtain insurance coverage on reasonable and not unfairly discriminatory terms. Joyner v. Harleysville Ins. Co., 393 Pa.Supef. 386, 391, 574 A.2d 664, 667 (1990).

        . The classification at issue has been held to be constitutional because it is "rationally related to New Jersey's legitimate state interest in establishing an insurance scheme that will compensate economic losses for all individuals injured in automobile accidents without unduly raising the cost of automobile insurance." Dyszel v. Marks, 6 F.3d 116, 119 (3rd Cir.1993).

      . Specifically, appellant claims that PNI should have apprised her of its status as a New Jersey insurer. This fact alone affected appellant's eligibility to recover for noneconomic damages sustained while she was operating her vehicle in New Jersey.


author: CIRILLO, Judge. JOHNSON, Judge,

text:
    672 A.2d 1341
    Sheila J. FORMAN, Executrix of the Estate of Mark Forman, Deceased and Sheila J. Forman In Her Own Right, Appellant, v. Morris ROSSMAN, D.O., Andrew C. Friedman, Regional Internal Medicine Associates, Ltd., Larry Cohen, M.D., Delaware Valley Medical Center, Delaware Valley Radiology, R. Zeit, M.D., and Bensalem Rescue Squad, Inc.
    Superior Court of Pennsylvania.
    Argued Nov. 2, 1995.
    Filed March 12, 1996.

      Eugene D. McGurk, Jr., Philadelphia, for appellant.
    Andrew J. Gallogíy, Philadelphia, for Bensalem Rescue Squad, appellee.
    Wendy B. Kaliner and Amy Snell, Philadelphia, for Delaware Valley Medical Center, Delaware Valley Radiology and Zeit, appellees.

      Before ROWLEY, P.J., and CAVANAUGH, WIEAND, McEWEN, CIRILLO, DEL SOLE, BECK, JOHNSON and HOFFMAN, JJ.

       ROWLEY, P J., did not participate in the consideration or decision of this case.

       CAVANAUGH, J., did not participate in the voting or disposition of this case.

   CIRILLO, Judge.

Sheila J. Forman appeals from an order entered by the Court of Common Pleas of Philadelphia County granting a petition to transfer this medical malpractice action to Bucks County pursuant to Pa.R.C.P. 1006(d)(1). We affirm.

Sheila J. Forman filed a complaint in Philadelphia County seeking to recover damages for injuries that allegedly resulted from several medical providers’ negligent treatment of her husband, Mark Forman (the decedent). After filing its answer, one of the medical providers, Delaware Valley Medical Center, filed a petition to transfer the action to Bucks County based upon the doctrine of forum non conveniens. In its petition, the medical center alleged that Bucks County would be a more convenient forum for this action because all of the parties and a vast majority of witnesses and sources of proof are located in that county. The medical center further averred that trial in Bucks County would be less disruptive to the medical providers’ practices because that county is “more accessible” than Philadelphia County. In addition, the medical center contended that public interest in the speedy resolution of civil litigation would be served by transfer of this action to Bucks County because that court’s docket is less congested than the Philadelphia County docket. In response, Forman filed an answer alleging that several of the medical providers maintain offices in Philadelphia and that the decedent died in Philadelphia. The trial court granted the medical center’s petition to transfer the action. Forman now appeals and asks this court to determine:

[If] the order of transfer entered by the trial court of the Philadelphia Court of Common Pleas [was] improper and unsupported by evidence in the record?

Our standard of review in an appeal from an order granting a transfer based upon the doctrine of forum non conveniens is whether the trial court committed an abuse of discretion. German v. AC & S, Inc., 430 Pa.Super. 497, 635 A.2d 159 (1993), rev’d on other grounds, 540 Pa. 353, 657 A.2d 1234 (1995). A trial judge has great discretion in reviewing petitions to change venue based upon forum non conveniens, on appeal the Superior Court only needs to determine whether the trial judge abused that discretion. McCrory v. Abraham; 441 Pa.Super. 258, 657 A.2d 499 (1995) (citations omitted). “An appellant must show that in reaching a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will.” Id. (citation omitted).

Appellants rely upon Scola v. AC & S, Inc., 540 Pa. 353, 657 A.2d 1234 (1995), to advance the argument that the trial court improperly granted a petition to transfer the venue of this case to Bucks County. In Scola, the party opposing the trial court’s transfer of venue of consolidated asbestos cases claimed that the trial court invoked improper transfer procedures in order to determine that a different venue would be appropriate for the disposition of the cases. On review from this court, the Pennsylvania Supreme Court determined that the trial court not only failed to consider whether the original venue was “oppressive and vexatious,” but, in fact, merely considered the location of the asbestos exposure, the residences of the appellees, and the congestion of the Philadelphia court system when it ordered that the cases be transferred.

The supreme court’s decision in Scola relies primarily on the premise, enunciated in Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827 (1989), that when a defendant petitions for a change of venue, the defendant must “clearly adduce facts that establish such oppressiveness and vexation to a defendant as to be out of all proportion to the plaintiffs convenience.” In sum, the Scola court, found that the trial court’s transfer of venue analysis

failed to articulate a specific basis upon which we may conclude that Appellees have demonstrated that trial in another county would provide easier access to witnesses or other sources of proof. Additionally, we are unable to find any evidence in the record that would allow us to independently reach this conclusion.

Scola, 540 Pa. at 368, 657 A.2d at 1241-42.

It is well established that a plaintiffs choice of forum is not unassailable. Pennsylvania Rule of Civil Procedure 1006 states, in part:

(d)(1) For the convenience of the parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought.

In addition, the legislature has adopted the doctrine of forum non conveniens in order to move a case to a different forum when defendants demonstrate that they fairly and practically deserve a change in the venue of a case. See Pa.R.C.P. 1006(d)(1); 42 Pa.C.S.A.Rule 1006. The law of forum non conveniens states that a plaintiff should not be deprived of his or her choice of forum unless the defendant:

[cjlearly adduces facts that either (1) establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiffs convenience or (2) make a trial in the chosen forum inappropriate because of considerations affecting the court’s own administrative and legal problems.

Incollingo v. McCarron, 416 Pa.Super. 419, 423, 611 A.2d 287, 289 (1992) (citations omitted) (emphasis added); 42 Pa. C.S.A.Rule 1006.

In assessing prong two of the Incollingo test, courts must:

[c]onsider those elements which affect the private interests of the litigants which include: the relative ease of access to sources of proof, availability of compulsory process for attendance of unwilling [witnesses], and the cost of obtaining attendance of unwilling witnesses; possibility of view of the premises if a view would be appropriate to the action and all other practical problems that make trial of a case easy, expeditious and inexpensive.... The court must also consider those elements in which the public has an interest and those include: problems of creating court congestion and imposing jury duty upon people of a community which has no relation to the litigation----

Incollingo at 423, 611 A.2d at 289 (citation omitted) (emphasis added). If the balance of these above factors weighs heavily in the defendant’s favor, then the plaintiffs forum choice may be disturbed. Rini v. N.Y. Central R.R. Co., 429 Pa. 235, 239, 240 A.2d 372, 374 (1968). Additionally, it has been held that the burden on the defendant in proving the necessity of forum non conveniens, due to hardship, must be made on the record. Okkerse, supra (holding that when party seeking transfer substantiates change of venue by merely alleging “hardship,” and where such allegations have been specifically denied in plaintiffs answer, superior court properly reversed grant of motion to transfer case’s venue due to inadequate record upon which to sustain motion). Finally, before a court can order a transfer of venue, the court must determine that “transfer is more convenient for both parties to the action or for the witnesses.” Nicolosi v. Fittin, 434 Pa. 133, 135, 252 A.2d 700, 701 (1969) (emphasis in the original) (emphasis added); Petty v. Suburban General Hospital, 363 Pa.Super. 277, 281, 525 A.2d 1230, 1232 (1987).

In Scola, the supreme court not only determined that the defendants had not proven that trial in the original forum would be “vexatious and oppressive,” but the court also modified the holding of Incollingo, supra. Scola clarified the fact that transfer of a case under the second prong of the forum non conveniens test requires more than a mere showing or allegation that there is heavy congestion in the court system of the original forum. While public concern of court backlogs is undoubtedly one factor in a trial court’s determination of transferring a case, it is not the only factor which would be strong enough to warrant a transfer of venue.

Although a defendant must bear a heavy burden in proving that the doctrine of forum non conveniens should be invoked, the defendants in the case at hand have clearly met this burden. Cf. Rubin v. Lehman, 443 Pa.Super. 1, 660 A.2d 636 (1995) (decided nine days after Scola, reversed transfer of case’s venue because party seeking venue change did not develop support its petition to transfer the case with record evidence which would bear its burden of proving hardship); Keuther v. Snyder, 444 Pa.Super. 468, 664 A.2d 168 (1995) (where appellees did not establish improper venue existed because they failed to adduce facts that established oppressiveness and vexation that were out of proportion to the plaintiffs convenience, trial court’s transfer of case, from Philadelphia County to Bucks County, was reversed and remanded by superior court to give appellees an opportunity to establish facts that litigation in original forum would be oppressive or vexatious). Unlike the Scola defendants who failed to present the court with sufficient evidence to warrant transfer of venue to another county under either prong of the Incollingo test, the present case is factually distinguishable from Scola, and, as a result, warrants a different outcome. Additionally, the defendants in the case at hand do not allege court congestion as the sole factor warranting transfer of the case under prong two of the Incollingo test. Rather, the defendants have stated sufficient public and private interests to support their petition to transfer the venue of the case.

The facts in the case at hand, relevant to a proper determination of whether to transfer venue, are supported by the record and are as follows: the defendants all maintain offices in Bucks County, the sources of proof are located in Bucks County, the plaintiff resides in Bucks County, the plaintiffs decedent resided in Bucks County, the majority of the prospective witnesses are located in Bucks County, decedent received treatment in a Bucks County hospital regularly, and many of the medical care institutions relevant to this case are located in Bucks County. Most important to this medical malpractice case, however, is the fact that all of the alleged improper medical care was administered to plaintiffs deceased husband in Bucks County. No acts of malpractice were alleged to have taken place in Philadelphia County. In fact, the sole connection that this case has to Philadelphia County is the fact that one office of several defendant-doctors was maintained in Philadelphia.

Absent any compelling connection to Philadelphia County, we cannot conclude that the trial judge committed an abuse of discretion in transferring this action to Bucks County based on the doctrine of forum, non conveniens. German supra. The trial court balanced the facts, conducted a lengthy analysis of the relevant factors connecting the case to both counties, considered the convenience of both parties, and determined that a transfer of venue would best serve both the private interests of the parties and the public interests of the citizens and the courts of Philadelphia. Nicolosi, supra. Because the balance of factors weighed heavily in the defendants’ favor, Rini, supra, it was proper for the trial judge to determine that the case should be transferred. Incollingo, supra.

Order affirmed.

JOHNSON, J., files a dissenting opinion, in which McEWEN and DEL SOLE, JJ., join.

JOHNSON, Judge,

dissenting:

Because I find that the medical center has not demonstrated on the record that trial of this matter in Philadelphia County would be oppressive, vexatious, or cause undue hardship, as required by the recent supreme court case of Scola v. AC & S, Inc., 540 Pa. 353, 657 A.2d 1234 (1995), I must respectfully dissent.

Pursuant to Pa.R.C.P. 1006(d)(1), “[f]or the convenience of parties and -witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought.” On appeal from an order granting a petition to transfer, this Court may not disturb such an order absent an abuse of discretion. Rubin v. Lehman, 443 Pa.Super. 1, 3-5, 660 A.2d 636, 638 (1995). “ ‘[I]f the trial court has not held the defendant ] to [the] proper burden or has clearly erred in weighing the factors to be considered, the equivalent of an abuse of discretion has been demonstrated.’ ” Petty v. Suburban Gen. Hosp., 363 Pa.Super. 277, 282, 525 A.2d 1230, 1232-33 (1987), quoting Reyno v. Piper Aircraft Co., 630 F.2d 149, 160 (3d Cir.1980), rev’d on other grounds, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981).

The United States Supreme Court has stated:

Where there are only two parties to a dispute, there is good reason why it should be tried in the plaintiffs home forum if that has been his choice. He should not be deprived of the presumed advantages of his home jurisdiction except upon a clear showing of facts which either (1) establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiffs convenience, which may be shown to be slight or nonexistent, or (2) make trial in the chosen forum inappropriate because of considerations affecting the court’s own administrative and legal problems.

Koster v. Lumbermens Mut. Casualty Co., 330 U.S. 518, 524, 67 S.Ct. 828, 831-32, 91 L.Ed. 1067, 1074 (1947). In 1980, the United States Court of Appeals for the Third Circuit adopted these principles and further explained that “court[s] must balance these private and public interest factors, ‘[b]ut unless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed.’ ” Reyno, supra, at 159, quoting Gulf Oil Co. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055, 1062 (1947). Subsequently, our state courts have adopted the standards set forth in Koster and Reyno and have applied them to cases in which there are more than two parties. Scola, supra; Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827 (1989); Incollingo v. McCarron, 416 Pa.Super. 419, 611 A.2d 287 (1992). “ ‘Thus, the party seeking a change of venue bears a heavy burden in justifying the request, and it has been consistently held that this burden includes the demonstration on the record of the claimed hardships.’ ” Scola, supra, at 367, 657 A.2d at 1241, quoting Okkerse, supra, at 518, 556 A.2d at 832.

In German v. AC & S, Inc., 430 Pa.Super. 497, 635 A.2d 159 (1993), a panel of this Court considered whether the trial court erred in its disposition of twenty-one asbestos-related cases. In eleven of those appeals, we determined that the trial court erred in dismissing the plaintiffs’ complaints and directing them to re-file in New Jersey. In the remaining ten appeals, we considered whether the trial court erred in granting petitions to transfer the actions from Philadelphia County to three neighboring counties. In regard to those ten appeals, we concluded that the trial court had properly transferred the cases. In doing so, we stated that the trial court

considered the various elements affecting the private interests of the parties, including current residence, location of exposure, work history, witness location, and sources of proof. The trial court also considered the public interest factors, the most important of which was increasing court congestion created by ... asbestos cases. The trial court weighed these various factors and determined that the public interest factors weighed heavily in favor of transferring these cases.

Id. at 516-17, 635 A.2d at 169. Because we found no abuse of discretion, we affirmed the order transferring those ten cases. Id. However, four of those ten plaintiffs appealed to our supreme court, arguing that the trial court had failed to accord sufficient deference to their choice of forum. The supreme court agreed, and, in Scola, supra, reversed that portion of German which upheld the transfer of those cases on forum non conveniens grounds. In doing so, the court explained that a party who seeks a change of venue must demonstrate, on the record, that he or she would be unduly burdened or suffer hardship if the trial were to take place in the plaintiffs choice of forum. Id. at 366-68, 657 A.2d at 1241. The court stated that, although factors such as court congestion are relevant to a determination whether to transfer a case, the court must also give deference to the plaintiffs choice of forum. Id. Thus, the court concluded that the trial court abused its discretion in ordering the cases to be transferred “where there [was] no showing on the record by [defendants] as to how trial in Philadelphia County would prove oppressive or vexatious.” Id.

The Majority concludes that the present case is factually distinguishable from Scola because the medical center “ha[s] stated sufficient public and private interests to support [its] petition to transfer the ... case.” Majority op. at 41. I disagree. Here, the trial court granted the medical center’s petition to transfer the action based upon the medical center’s assertions that the parties and a majority of the witnesses and sources of proof are located in Bucks County, and that the alleged negligence giving rise to the action took place in Bucks County. Trial Court Opinion, dated August 29, 1994, at 4. The court further stated that the only connection the action has with Philadelphia County is that some of the medical providers do business there. Id. In addition, the court relied on the fact that Philadelphia County courts have extremely crowded dockets and that trial in Philadelphia County would be inequitable to that county’s residents. Id. at 5. These factors are strikingly similar to those cited by this Court in German, supra, where we affirmed the transfer of ten cases on forum non conveniens grounds. Although this Court found no abuse of discretion in the trial court’s determination, the supreme court, in Scola, reversed our decision. Here, as in Scola, the trial court did not find, nor did the medical center demonstrate, that trial in Philadelphia County would be oppressive, vexatious, or cause the medical center undue hardship. As previously stated, a defendant is required to support his petition to transfer with record evidence. See Scola, supra; Okkerse, supra; Rubin, supra. Although the Majority states that the facts alleged by the medical center are supported by the record, neither the Majority nor the trial court provide citations to any record evidence that supports those allegations. In fact, the medical center did not file affidavits, take depositions, or establish any record evidence whatsoever to support its petition. Scola clearly states that it is an abuse of discretion to grant a petition to transfer an action where there has been no showing on the record that trial in the original forum would prove oppressive or vexatious. Scola, at 366-68, 657 A.2d at 1241. Further, it is the function of this Court “to maintain and effectuate the decisional law of [our supreme court] as faithfully as possible.” Commonwealth v. Dugger, 506 Pa. 537, 545, 486 A.2d 382, 386 (1985). Thus, following the dictates of Scola, I must conclude that the trial court abused its discretion in ordering transfer of this matter, as it failed to hold the medical center to the proper burden. Petty, supra (where court does not hold defendant to proper burden, an abuse of discretion has been demonstrated). See also Keuther v. Snyder, 444 Pa.Super. 468, 664 A.2d 168 (1995) (trial court abused its discretion in transferring the action where it based its determination on defendant’s assertions that the parties, witnesses and evidence were all located in Bucks County, that the accident occurred in Bucks County, that the Philadelphia County courts had extremely crowded dockets, and that allowing the case to proceed in Philadelphia County would be inequitable to residents of that county, because the record was devoid of any mention that trial in Philadelphia County would be oppressive, vexatious, or cause defendants hardship); Rubin, supra, at 7, 660 A.2d at 639 (“the lack of any record regarding private factors clearly serves to negate any meaningful balance of public and private factors to determine if they weigh so strongly in favor of the moving party as to warrant disturbing the plaintiffs choice of forum”).

Based upon the foregoing, I would reverse the order granting the petition to transfer the action and remand this case to the Court of Common Pleas of Philadelphia County. Hence, this dissent.

McEWEN and DEL SOLE, JJ., join.

      . Defendant Bensalem Rescue Squad was the first party to object to plaintiffs choice of forum. The squad filed preliminary objections contending that Bucks County was the only proper venue for the filing of the suit. Before the objections were decided, however, the medical center filed its petition to transfer pursuant to Pa.R.C.P. 1006(d)(1).

      . By way of dicta, I feel that it is important to note that the most recent court reports from Bucks County indicate a one-year backlog before civil cases are tried. The most recent report from Philadelphia County, however, indicates that there was a four-year backlog of such cases. Because we may take judicial notice of these respective backlogs, so long as this is not the sole reason for transferring a case, we find this to be another compelling reason why the case should be transferred to Bucks County. Recognizing this court congestion would ultimately serve to put an end as soon as possible to protracted litigation, i.e., the ultimate goal of all courts. See Rubin v. Lehman, 443 Pa.Super. 1, 15-18, 660 A.2d 636, 644-45 (1995) (Tamilia, J., dissenting opinion).


author:
SAYLOR, Judge:
      DEL SOLE, Judge,

text:
    672 A.2d 1347
    Donna L. FRANKENFIELD, Appellee, v. Jeffrey C. FEESER, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1995.
    Filed March 13, 1996.

      Edward L. Crow, York, for appellant.
    Shawn P. McLaughlin, York, for appellee.
    Before DEL SOLE, SAYLOR and HESTER, JJ.
   SAYLOR, Judge:

Where Mother retains primary custody of the child of her first marriage and desires to remain at home to care for the child of her second marriage, does the trial court abuse its discretion by applying the nurturing parent doctrine to preclude the attribution of an earning capacity to Mother? Father, who sought a reduction in his child support obligation, contends that such a ruling does constitute an abuse of discretion. On the facts of this case, we disagree. Accordingly, we affirm the order entered by the Court of Common Pleas of York County on January 11,1995.

The parties to this appeal, Appellant, Jeffrey C. Feeser (“Father”), and Appellee, Donna L. Frankenfield (“Mother”), are the parents of one child, Kiersten, born March 5, 1988. Father and Mother separated in February of 1992 and eventually divorced, with Mother assuming custody of Kiersten. Mother has remarried, and she and her husband have a child, McKayla, born October 5, 1994. Kiersten remains with Mother and her husband.

Pursuant to an order of court entered November 5, 1992, Father was obligated to pay $70.00 per week toward Kiersten’s support. On August 15, 1994, Father petitioned for a downward modification of his child support obligation. A hearing officer determined that Father’s net monthly income was $1,480.30 and that Mother’s monthly earning capacity was $1,371.33. On the basis of those figures, an order was entered which reduced Father’s support obligation to $56.00 per week. Mother requested a hearing by the trial court, asserting, inter alia, that because she was staying home with her newborn child, the nurturing parent doctrine should be applied to preclude the assignment of an earning capacity to her.

Following a hearing, the trial court agreed, noting that “it would appear from the record before us that the parties ... gave some priority to one of the parents remaining at home with Kiersten, and we will afford [Mother] that opportunity once again with her new child.” Accordingly, the trial court entered an order on January 11, 1995, establishing Father’s support obligation at $76.00 per week.

According to Father, the trial court misapplied the law in applying the nurturing parent doctrine to the facts of the present case. Father contends that the trial court ignored pertinent factors, most importantly Mother’s employment history. At the same time, Father asserts, the trial court “placed entirely too much emphasis” on two factors: 1) the fact that Mother remained at home with Kiersten during the parties’ marriage; and 2) Mother’s desire to stay at home with the child of her second marriage. Father asks, in effect, that we vacate the order of January 11, 1995 and reinstate the order that was based on the hearing officer’s findings.

In reviewing a child support order, our standard of review is narrow: we will not interfere with the trial court’s order absent a clear abuse of discretion, shown by clear and convincing evidence. Hesidenz v. Carbin, 354 Pa.Super. 610, 512 A.2d 707 (1986). “An abuse of discretion is more than an error of judgment. It must be a misapplication of the law or an unreasonable exercise of judgment.” Drawbaugh v. Drawbough, 436 Pa.Super. 57, 59, 647 A.2d 240, 241 (1994), quoting DeNomme v. DeNomme, 375 Pa.Super. 212, 218, 544 A.2d 63, 66 (1988).

It is settled law that both parents are equally responsible for the support of their children. Kelly v. Kelly, 430 Pa.Super. 31, 633 A.2d 218 (1993). The determination of a parent’s ability to provide support is based upon the parent’s earning capacity rather than upon his or her actual earnings. Id.; Hesidenz, supra. However, an exception to this general rule exists in the form of the “nurturing parent doctrine.” First recognized in Commonwealth ex rel. Wasiolek v. Wasiolek, 251 Pa.Super. 108, 380 A.2d 400 (1977), the nurturing parent doctrine holds that

earning capacity cannot always be imputed to a parent who chooses to stay home with a minor child. In appropriate cases, such a nurturing parent may be excused from contributing support payments. A trial court, so holding, must consider the age and maturity of the child, the availability of others who might assist the parent, the adequacy of available financial resources if the parent remains at home, and finally, the parent’s desire to stay home and nurture the minor child.

Hesidenz, 354 Pa.Super. at 616, 512 A.2d at 710.

In the present case, Father concedes that the nurturing parent doctrine is not inapplicable simply because the child to be nurtured is the child of Mother’s second marriage. He contends, however, that in deciding whether to apply the doctrine, the trial court failed to give sufficient weight to Mother’s employment history. Father’s claim, as we understand it, is that where, as here, the child to be nurtured is not the child of the parties and there are no unusual circumstances, such as illness, “the nurturing parent doctrine should not be applied [if] the nurturing parent has a significant work history.”

A similar issue was presented to the Superior Court in Bender v. Bender, 297 Pa.Super. 461, 444 A.2d 124 (1982). The parties were the parents of one child, of whom the father had custody. The mother had had a second child, not by the same father, and sought an indefinite suspension of her support obligation so that she could remain at home to care for the second child. In the belief that application of the nurturing parent doctrine was required under Wasiolek, the trial court granted the mother’s request. The father appealed.

The Superior Court held that Wasiolek did not “establish an absolute rule that an earning capacity can not be imputed to a parent who chooses to stay home with a minor child.” Id., 297 Pa.Super. at 465, 444 A.2d at 126. At the same time, the court declined to adopt the “restrictive interpretation of Wasiolek [urged by the father, who asks] us not to apply the ‘nurturing parent doctrine’ where the child to'be ‘nurtured’ is not the subject of the support order.” Id. Instead of establishing an absolute rule that the doctrine did or did not apply in such a situation, the court remanded the case for an evidentiary hearing, observing that

[i]n addition to [the] factors which are specifically enunciated in Wasiolek, the court on remand may wish to consider the fact that the child to be “nurtured” is not the subject of the support order, although we do not feel that this fact necessarily removes this case from the application of the “nurturing parent doctrine.”

Id., 297 Pa.Super. at 467, 444 A.2d at 126. Although the issue of the mother’s employment history was not specifically addressed by the Superior Court, the summary of the case indicates that she did in fact have such a history.

In Klein v. Sarubin, 324 Pa.Super. 363, 471 A.2d 881 (1984), the father, seeking a decrease in his support obligation, argued on appeal that the trial court had erred in refusing to continue the support hearing until a copy of the most recent income tax return of the mother and her second husband could be obtained. The Superior Court reasoned that the tax return was unnecessary because the mother’s second husband was not required to contribute to the support of the children of her first marriage and because the mother, who was “presently unemployed, and at home caring for the child of her present marriage,” id., 324 Pa.Super. at 367, 471 A.2d at 883, could contribute nothing to the children’s support. The latter fact, the court observed, “was established to the satisfaction of both [the father] and the court.... ” Id., 324 Pa.Super. at 371, 471 A.2d at 885. The fact that the child being nurtured was the child of the mother’s second marriage was apparently not made an issue by the father.

In Butler v. Butler, 339 Pa.Super. 312, 488 A.2d 1141 (1985), the father argued that the trial court had considered the mother’s actual earnings instead of her earning capacity, with the result being the imposition of an excessive support obligation upon him. The mother was receiving public assistance and remaining at home with her three minor children, one from the parties’ marriage and two from her previous marriage. After analyzing the case under Wasiolek, and noting specifically that there were “adequate financial resources available to support the parties’ child without [the mother’s] providing employment income for child support[,]” id., 339 Pa.Super. at 319, 488 A.2d at 1144, the Superior Court concluded that the trial court had not erred in considering the mother’s actual earnings rather than her earning capacity.

In Hesidenz, supra, the mother’s support obligation was at issue in the consolidated appeals of both parties. Ten years after the parties’ divorce, custody of the parties’ two children was transferred from the mother to the father. The mother, a registered nurse, decreased her work load from full-time to part-time after the birth of the first child of her second marriage. On the basis of her diminished wages, she obtained a reduction in her child support obligation, from which the father appealed. When the mother experienced poor health following the birth of another child, she ceased working altogether. She then sought to be relieved of her support obligation, but the trial court agreed only to hold the obligation in abeyance until she was able to return to work. The mother appealed.

On appeal, the father argued that there was insufficient evidence to support the trial court’s findings that the mother was in poor health and that she was entitled to the benefit of the nurturing parent doctrine. The Superior Court found no merit to either claim. Although the father did not argue that the nurturing parent doctrine was inapplicable where it is the child of a second marriage who is being nurtured, the court noted that “we have held that the fact that the child to be nurtured is not the subject of the support order does not necessarily remove the case from the application of the ‘nurturing parent’ doctrine.” Id., 354 Pa.Super. at 616 n. 4, 512 A.2d at 710 n. 4, citing Klein, supra, and Bender, supra. With regard to the mother’s appeal, the Superior Court held that the trial court had abused its discretion in suspending rather than terminating her support obligation.

In Atkinson v. Atkinson, 420 Pa.Super. 146, 616 A.2d 22 (1992), the trial court applied the nurturing parent doctrine to relieve the mother of any obligation to support the child of her first marriage. The father argued on appeal that the trial court had erred in not determining the mother’s earning capacity and imposing upon her a support obligation based on her earning capacity. He maintained that “a mother should be required to pay support for a child of her first marriage who is living with his father even though she is a full-time caretaker for the child of her second marriage.” Id., 420 Pa.Super. at 148, 616 A.2d at 23.

As in Bender, the Superior Court did not take the restrictive approach urged by the father. Instead, the court offered the following analysis:

[The trial court] determined that the issue was not whether the mother was caring for her children as opposed to their children, but whether under the facts of the case what the earning capacity would be. This is the correct analysis under these facts, particularly since there is no evidence of the mother’s earning capacity---- On this record, imputing earning capacity to the mother is a fiction which simply shifts the burden of supporting the wife’s child of the first marriage to her second husband, who has no legal obligation to do so.
The concept of imposing a support Order based on earning potential ... derives from the principle that a person who has a support obligation may not withdraw from income!-] producing endeavors to defeat the right of support to his/her dependents. It has never been the law that a mother who elects to care for her young child is chargeable with voluntary withdrawal from income-producing activity to defeat the right to support her child by a previous marriage.

Id., 420 Pa.Super. at 149, 616 A.2d at 23 (emphasis in original). Having thus analyzed the issue, the court noted the absence in the record of any evidence that the mother had ever worked or that her son, who had lived with her for most of his life, had not had “the benefit of her full-time nurturing.” Id., 420 Pa.Super. at 149, 616 A.2d at 23. The court concluded that without proof of the mother’s income-producing capacity and of the prior practice with regard to caring for the older child, there was no basis upon which to overrule the trial court’s judgment.

In Kelly, supra, the Superior Court considered whether the trial court had abused its discretion by attributing an earning capacity to the mother and, on that basis, requiring her to contribute to the support of the parties’ child, who resided with the father. The mother wished to remain at home with the child of her second marriage. Relying on Atkinson, she argued that the nurturing parent doctrine precluded the trial court from assigning an earning capacity to her. The Superior Court distinguished Atkinson by noting that in that case, unlike in the case before it, the mother had never worked. Accordingly, the Superior Court affirmed the order establishing the mother’s support obligation.

Most recently, in Depp v. Holland, 431 Pa.Super. 209, 636 A.2d 204 (1994), the Superior Court considered whether the trial court had erred in not applying the nurturing parent doctrine to excuse the mother from contributing to the support of the parties’ child. The father had custody of the child; the mother wished to remain at home to care for her second child, born to a different father. After noting that the mother not only had a past work history but had also worked at home, the Superior Court concluded that the particular facts of the case did not warrant the application of the nurturing parent doctrine.

As our review of the case law illustrates, there is no authority for the inflexible requirement proposed by Father, namely, that “since [Mother] has a significant work history, she should have an earning capacity.” To the contrary, while “[a] trial court in determining’ [a parent’s] ability to pay support must primarily focus on earning capacity rather than actual earnings, ... a trial court is free to consider making an exception to this rule whenever a parent chooses to stay at home with a minor child[,]” Singleton v. Waties, 420 Pa.Super. 184, 190, 616 A.2d 644, 647 (1992) (citation omitted), so long as the relevant factors are considered, Hesidenz, supra.

In the present case, it is clear that the trial court considered Mother’s work history, which it summarized in its findings, and weighed this factor in its decision as it was required to do, noting that “[w]e are also to consider past work history....” It is also clear that under the relevant case law the trial court did not abuse its discretion in refusing to accord controlling weight to Mother’s work history, and we thus find no merit to Father’s claim.

Next, Father argues that the trial court placed too great an emphasis upon the fact that Mother had stayed home with Kiersten and wished to do likewise with the young child of her second marriage. It is undisputed that a parent’s desire to stay home with his or her child is not dispositive of the issue. Butler, supra; Bender, supra; Wasiolek, supra. In fact, the trial court acknowledged as much in the present case. Nonetheless, the parent’s desire is a factor to be considered, even where the child to be nurtured is not the child of both parties. See Bender, supra. Furthermore, we note that in Atkinson, supra, the Superior Court suggested that prior practice was a relevant consideration. Thus we conclude that the trial court did not give undue weight to these factors.

Finally, Father contends that the trial court erred in ignoring two additional factors: 1) the adequacy of financial resources if Mother remains at home, and 2) the availability of others who could assist Mother in caring for McKayla. However, Father does not argue that he is unable to support Kiersten in the amount ordered by the trial court. See Bender, supra (“[the father’s] ability to support [the parties’ child] is ... a major factor to be considered in determining whether [the mother] should be permitted to remain at home with [the child of a subsequent relationship]”). Nor did Father offer any evidence regarding the availability of other caregivers. Thus we find no merit to these claims.

In sum, this case required the trial court to apply a general principle, the “nurturing parent doctrine,” to a specific set of facts. Father has failed to demonstrate by clear and convincing evidence that the trial court misapplied the law or unreasonably exercised its judgment in doing so. Therefore, finding no abuse of discretion, we affirm the order of January 11, 1995.

Order affirmed.

DEL SOLE, J., files a concurring statement.

DEL SOLE, Judge,

concurring:

While I believe the Majority has correctly stated and applied the law in this case, I remain of the view that the “nurturing parent doctrine” should only apply where the child being nurtured is the child for whom support is sought. See Atkinson v. Atkinson, 420 Pa.Super. 146, 616 A.2d 22 (1992) (Del Sole, J. dissenting).

      . Although the trial court has not filed an opinion, the reasons for the court’s decision were stated on the record at the conclusion of the hearing and have been restated in the order of January 11, 1995. In this regard, we note that the record includes an order directing Father to file a statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Apparently Father failed to comply with the order, as the record does not contain a Rule 1925(b) statement.

      . The increase from the amount set in 1992 apparently resulted from the assignment to Father of additional monthly earnings from a part-time business. Father has not challenged that aspect of the trial court’s order.

      . "[The mother] made a decision at some point not to return to work after [the second child's] birth.” Id., 297 Pa.Super. at 464, 444 A.2d at 125.

      . The procedural history of the case is complex. We have not discussed it in detail because it is not relevant to the issue before us.

      . Father also argues that although he discouraged Mother from working while the parties were still married, he had mixed motives for doing so, namely, he wanted Mother at home to care for Kiersten and also wished to discourage her extra-marital affair with a co-worker. However, the fact remains that Mother was able to stay at home and care for Kiersten and was encouraged to do so by Father.