author: TAMILIA, Judge:

text:
    598 A.2d 63
    SOUTHWEST GERMANTOWN COMMUNITY DEVELOPMENT CORPORATION v. CONCERNED NEIGHBORS OF GERMANTOWN and Neighborhood Activities House Association, a/k/a NAHA, Appellants.
    Superior Court of Pennsylvania.
    Submitted Aug. 28, 1991.
    Filed Oct. 31, 1991.

      Robert S. Robbins, Philadelphia, for appellants.
    Henry I. Langsam, Philadelphia, for appellee.
    Before DEL SOLE, TAMILIA and HOFFMAN, JJ.
   TAMILIA, Judge:

This is an appeal from an Order dated September 17,1990 and docketed December 21, 1990 granting appellee’s, Southwest Germantown Community Development Corporation, motion for summary judgment on the pleadings and entitling appellee to recover from appellants, Concerned Neighbors of Germantown and Neighborhood Activities House Association, the possession of certain real estate.

Appellee, a non-profit corporation, owns property located at 101 West Logan Street, Philadelphia, Pennsylvania. In January, 1979, appellee leased the property to appellants on a rent-free, month-to-month basis. Although there was no writing signifying this transaction, appellants occupied, maintained and made improvements to the property during their time in possession. On June 10, 1988, appellee hand-delivered written notice to appellants to vacate the premises within thirty days. Upon appellants’ failure to do so, appellee filed a landlord and tenant complaint in Municipal Court. On September 19, 1989, the matter was arbitrated and a finding for appellee for possession was entered. On appeal, the trial court granted appellee’s motion for summary judgment. Thereafter, appellants filed a motion for reconsideration. Upon reconsideration, by Order dated December 18, 1990, the trial court reinstated its September 17, 1990 Order for two reasons. First, appellants only defense to appellee’s claim of possession, that a letter from appellee to a third party evidences an intended agreement to transfer title to appellants, was not raised properly in the pleadings and was, therefore, waived. Second, even if the court entertained their defense, appellants failed to establish a basis for a binding agreement that would have transferred the property.

Appellants now argue, based on fairness considerations, they should have been permitted to amend the pleadings in order to properly raise the defenses of an intended sales agreement between the parties, detrimental reliance and equitable estoppel, all of which allegedly have merit.

On review, we are bound to consider certain principles which dictate when and under what circumstances a trial court may properly enter summary judgment. Goebert v. Ondek, 384 Pa.Super. 100, 557 A.2d 1064 (1989). The trial court must accept as true all well-pleaded facts relevant to the issues in the non-moving party’s pleadings and give to him or her the benefit of all reasonable inferences to be drawn therefrom. Jefferson v. State Farm Insurance, 380 Pa.Super. 167, 551 A.2d 283 (1988). We will overturn a trial court’s entry of summary judgment only if there has been an error of law or a clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 549 A.2d 1311 (1988).

Appellants contend they should be allowed to amend the pleadings on remand in order to preserve certain defenses. Specifically, appellants allege the parties intended sales agreement is evidenced by a June 19, 1978 letter from appellee to the Philadelphia Department of Licenses and Inspections which states in pertinent part:

On May 19, 1978, the [appellee] secured title to the property with intent to transfer title to [appellants] upon completion of necessary renovation.

Pennsylvania Rule of Civil Procedure 1032, Waiver of defenses, Exceptions, states defenses (but for exceptions inapplicable here) are waived if the parties do not raise them by answer with new matter, preliminary objections, or reply. Appellants’ answer to the complaint contains no new matter or affirmative defense. Therefore, the trial court did not err in stating appellants waived the defense of an intended sales agreement. Although we agree with appellants, Pa.R.C.P. 1033, Amendment, allows the court to permit parties to amend pleadings, here we will not remand the case to allow appellants to amend their pleadings because the trial court did not abuse its discretion in holding appellants did not provide a valid defense to the complaint.

A contract for the sale of land must be in such form which properly expresses the intention of the parties and must be definite and certain as to all essential terms. Kelly v. Rhodes, 279 Pa.Super. 477, 421 A.2d 299 (1980). Examining the letter in a light most favorable to appellants, we find it fails to evidence a binding sales agreement. Since the letter is not addressed to appellants, no meeting of the minds can be inferred. Also, the letter does not contain any terms such as price or settlement date and it is conditioned upon the completion of necessary renovations. Thus, appellants’ defense fails because the minimum requirements for. the sale of real estate, are absent.

Appellants next contend since they made improvements and maintained the property, and because they enjoyed undisturbed possession of the property for ten years, and because they justifiably relied upon the belief the appellee would some day give them legal title to the property, principles of fairness require appellee should be es-topped from taking possession of the property. In Straup v. The Times Herald, 283 Pa.Super. 58, 423 A.2d 713 (1980), the court specified the situations to which equitable estoppel applies:

“Normally, equitable estoppel referred to a situation in which a party made a false representation to, or knowingly concealed material facts from, another party with the intention that the innocent party should act upon the false representation or concealment. [However, courts often held the doctrine of equitable estoppel to apply even where no false representation or concealment of material facts existed.] The promise was enforceable because the promisee had altered [his] position to [his] detriment in the reasonable belief that the promise would be performed....” Murray on Contracts, pp. 90-91 (Rev.Ed. 1974).

Id., 283 Pa.Superior Ct. at 69-70, 423 A.2d at 719. Here, appellee neither made false representations nor ever promised appellants the property would some day become their own. Even if appellants unreasonably relied upon appellee’s inaction or silence, we fail to see how appellants were prejudiced. They did maintain and make improvements to the property. But since they were in rent-free possession for ten years, it appears appellants actually benefited from the improvements and daily maintenance of the property. Thus, none of the elements of equitable estoppel are present and appellants’ defense must fail.

Finally, appellee claims it is entitled to costs and reasonable attorney fees pursuant to 42 Pa.C.S. § 8355. Section 8355 having been suspended by Rule 1451 of the Pennsylvania Rules of Civil Procedure, effective May 11, 1990, we deny appellee’s request.

In light of the foregoing discussion, we affirm the trial court’s grant of summary judgment.

Order affirmed.

      . Appellee points out appellants’ brief fails to comply with the Pennsylvania Rules of Appellate Procedure in many ways. For example, there is no showing of appellate jurisdiction and no Order from the court below. Pa.R.A.P. 2111(a), 2114, 2115. While we certainly do not condone this noncompliance with the rules, in the interest of judicial economy, we chose to address the issues presented by appellant and decide the case on the merits.


source: Caselaw Access Project

author: KELLY, Judge:

license: Public Domain

text:
    598 A.2d 65
    ESTATE OF Mary C. PEW, Deceased. Appeal of Grace Fleming PAYNE, Appellant.
    Superior Court of Pennsylvania.
    Argued May 15, 1991.
    Decided Oct. 1, 1991.

      Avivah R.Z. Pinski, Philadelphia, for appellant.
    Nina M. Gussack, Philadelphia, for Pew, participating party.
    Before McEWEN, KELLY and FORD ELLIOTT, JJ.
   KELLY, Judge:

In this appeal we are called upon to determine whether the trial court properly permitted the trustees of the Trust Under Deed of Mary C. Pew, Sur Trust for Walter C. Pew to rely upon the blood type information contained in a certified copy of the decedent’s, Walter C. Pew’s, hospital records for a blood transfusion he received in 1987 and the blood type information supplied by the appellant, Grace Fleming Payne, during discovery when making a non-paternity determination, where it has not been alleged that there are any existing samples of the decedent’s blood available for blood type testing. We affirm.

The relevant facts and procedural history are as follows. The appellant was born out of wedlock in Cumberland, Maryland on November 12, 1926. The appellant’s birth certificate states that her mother’s name was Viola Humbertson and her father’s name was Chuck Pew. The appellant attempted for forty-three years to locate her biological father. Her search led her to the decedent, Walter C. Pew, of Bryn Mawr, Pennsylvania. When the appellant attempted to contact Mr. Pew with her belief that he was her biological father, she was informed that Mr. Pew had died several months earlier on March 14, 1989. The appellant demanded a share of the principal of the trust which became distributable upon Walter C. Pew’s death to the decedent’s children. The trustees and the appellant’s counsel agreed to an exchange of basic blood type information in order to expedite a determination of whether the appellant was the daughter of Walter C. Pew.

The appellant supplied a letter from her physician stating that her blood type was AB and a hospital laboratory report stating that the appellant’s mother, Viola Humbertson Raney, had blood type B. The trustees submitted that Water C. Pew had blood type 0, on the basis of his United States Army dog tag from the Second World War and certified 1987 blood transfusion records from Bryn Mawr Hospital. The trustees then informed the appellant that it was their position that she was not the daughter of Walter C. Pew. The trustees also retained a genetics expert, Dr. Laird G. Jackson, who issued a report which stated that on the basis of the different blood types he was 99.9% certain that the appellant was not the daughter of Walter C. Pew. A copy of this report was sent to the appellant. The appellant was then informed by the attorney for Mr. Pew’s estate that there would be an audit of the “Trust under Deed of Mary C. Pew, Sur Trust for the benefit of Water C. Pew on May 7, 1990.”

On May 3, 1990, the appellant, proceeding pro se, filed a claim on the audit of the trust in the Orphans’ Court of Montgomery County. On July 11, 1990, the trial court issued a decree to allow the trustees to proceed with discovery. The appellant promptly responded to the trustees’ interrogatories and request for the production of documents. On August 1, 1990, the trial court issued a decree permitting the appellant to conduct discovery. On August 6, 1990, the trustees filed a motion for summary judgment or in the alternative a petition for determination of non-paternity pursuant to Pennsylvania’s Uniform Act on Blood Test to Determine Paternity, 42 Pa.C.S.A. § 6131 et seq. On August 8, 1990, the trial court issued an order which suspended all discovery and scheduled a hearing on the trustees’ motion for August 20, 1990.

At the hearing, the trustees presented the testimony of Dr. Laird Jackson, a geneticist, who was qualified by the trial court as an expert. Dr. Jackson testified that on basis of the appellant’s blood type (AB), her mother’s blood type (B) and Walter C. Pew’s blood type (O), that it was impossible for Walter C. Pew to have been the appellant’s father. The appellant did not present an expert of her own to refute Dr. Jackson’s testimony. Rather, she rested upon her cross-examination of the trustees’ expert. On August 27, 1990, the trial court entered a final decree which determined that Walter C. Pew was not the appellant’s father, granted summary judgment in favor of the trustees and dismissed the appellant’s claim with prejudice. This timely appeal followed.

On appeal, appellant raises four issues for our review.

I. DID THE HEARING COURT ERR WHEN IT DESIGNATED SOMEONE WHO WAS NOT AN . EXPERT IN PATERNITY BLOOD TESTING AS AN EXPERT UNDER THE UNIFORM ACT FOR BLOOD TESTING TO DETERMINE PATERNITY?
II. DID THE HEARING COURT DENY LITIGANT HER RIGHT TO DUE PROCESS UNDER THE UNIFORM ACT WHEN THERE WAS NO IN-COURT OPPORTUNITY TO CROSS-EXAMINE ANY OF THE PERSONS WHO DID ANY OF THE BLOOD TYPING, OR WHO WERE RESPONSIBLE FOR ANY OF THE ALLEGED BLOOD TYPE RECORDS WHICH CONSTITUTED THE FACTUAL BASIS FOR THE SCIENTIFIC OPINION CREDITED BY THE COURT AS THE DETERMINATIVE FACTOR IN ITS FINDING OF NON-PATERNITY UNDER THE UNIFORM ACT?
III. DID THE HEARING COURT ERR WHEN IT BASED ITS FINDINGS OF NON-PATERNITY SOLELY ON THE OPINION OF A MEDICAL WITNESS WHO RENDERED AN OPINION WITHOUT THE TYPE OF RECORDS WHICH A BLOOD TESTING EXPERT RELIES UPON FOR A DETERMINATION OF EXCLUSION OF PARENTAGE?
IV. DID THE HEARING COURT ERR BY DISMISSING THE CASE, WHEN, CONSIDERING THE RECORD IN THE LIGHT MOST FAVORABLE TO THE NON-MOVING PARTY, THERE WERE ISSUES OF MATERIAL FACT?

Appellant’s Brief at 3.

At the outset, we note that in reviewing orders granting summary judgment, our scope of review is limited. This Court has previously summarized the appropriate standard as follows:

A motion for summary judgment may properly be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In passing upon a motion for summary judgment, the court must examine the record in the light most favorable to the non-moving party. Moreover, it is clear that to survive a motion for summary judgment, the non-moving party may not rely merely upon the controverted allegations of the pleadings, but must set forth specific facts by way of affidavit, or in some other way as provided by the rule, demonstrating that a genuine issue exists.

Larkin v. Metz, 398 Pa.Super. 235, 238-39, 580 A.2d 1150, 1152 (1990); Hartford Mutual Insurance Company v. Moorhead, 396 Pa.Super. 234, 237, 578 A.2d 492, 494 (1990) (citations omitted); Pa.R.C.P. 1035(d). Cognizant of this standard, we turn our attention to the appellant’s appeal.

The appellant contends that the trial court erred in designating Dr. Jackson as an expert under 42 Pa.C.S.A. § 6134. The appellant argues that while Dr. Jackson may be a qualified as a geneticist, he is not qualified as an expert in the examination of blood types as required by the act. Thus, the trial court erred in permitting Dr. Jackson to testify as an expert. We disagree.

The admission of expert testimony is a matter for the discretion of the trial court and will not be remanded, overruled, or disturbed unless there was a clear abuse of discretion. Mitchell v. Randall, 368 Pa.Super. 421, 426-27, 534 A.2d 508, 510 (1987). The purpose for the selection of experts under 42 Pa.C.S.A. § 6134 is the same as the rule for expert testimony; to allow qualified “opinion” testimony in order to explain to the trier a subject matter which is beyond the experience and comprehension of the ordinary laymen. Tyler v. King, 344 Pa.Super. 78, 496 A.2d 16 (1985). Experts in one area of medicine may be found to be qualified to address other areas of specialization where the specialities overlap in practice or where the specialist has had experience in a selected field of medicine. Lira v. Albert Einstein Medical Center, 384 Pa.Super. 503, 559 A.2d 550 (1989), appeal denied, 527 Pa. 635, 592 A.2d 1302 (1991).

Instantly, when Dr. Jackson presented his impressive credentials to the trial court, he stated that he was familiar with the process by which blood typing was done and through his work was personally familiar with and experienced in the analysis of blood types to determine inheritable traits. As the information on the blood types of the appellant, her deceased mother and Walter C. Pew were supplied to him by either the appellant or the trustees, it was not necessary for Dr. Jackson to conduct blood tests to arrive at his conclusion. Moreover, it has not been alleged by the appellant that there are existing blood samples of either Walter C. Pew or the appellant’s mother which would permit Dr. Jackson or any other expert to conduct blood typing tests. Accordingly, because Dr. Jackson was qualified as an expert in a closely related field dealing with heredity and inheritable traits, the trial court properly permitted his expert testimony to the question of whether the appellant was the daughter of Walter C. Pew.

The appellant’s second contention is that she was denied her due process rights under 42 Pa.C.S.A. § 6131 et seq. because she did not have the opportunity to cross-examine the people who had completed the blood typing tests on herself, her mother and Walter C. Pew, upon which Dr. Jackson had relied. The appellant asserts that because of her inability to cross-examine the people who had made the respective blood type determinations, the trial court’s ruling on non-paternity should be overruled, the grant of summary judgment in favor of the trustees should be vacated, and the case should be remanded to permit the appellant to fully cross-examine all these responsible for the blood typing determinations. We disagree.

While the general rule is that an expert may not state a conclusion which is based upon evidence not in the record, Pennsylvania recognizes an exception which permits medical witnesses to express opinion testimony on medical matters based, in part, upon the reports of others which are not in evidence, but which the expert customarily relies upon in practice. Commonwealth v. Thomas, 444 Pa. 436, 445, 282 A.2d 693, 698 (1971); Cooper v. Burns, 376 Pa.Super. 276, 286-87, 545 A.2d 935, 940 (1988), appeal denied, 522 Pa. 619, 563 A.2d 888 (1989). Certified copies of medical records of any health care facility licensed under the laws of this Commonwealth that are susceptible to photostatic reproduction may be proved as to foundation, identity and authenticity without any preliminary testimony provided. The copies are certified by the custodian of the originals. See 42 Pa.C.S.A. § 6151; 42 Pa.C.S.A. § 6152(d).

Instantly, the trustees’ expert, Dr. Jackson, relied upon certified copies of Bryn Mawr Hospital records containing Walter C. Pew’s blood type. The records used by Dr. Jackson were records which a medical expert would customarily rely upon in practice. Accordingly, as the appellant was permitted to fully cross-examine Dr. Jackson, we find no merit to her contention that she was not afforded her due process right to cross-examination under 42 Pa.C.S.A. § 6131 et seq.

Moreover, we find the appellant’s argument regarding the trial court’s failure to permit her to cross-examine those responsible for typing her blood and her mother’s blood wholly specious. The information regarding the testing of her own blood type and her mother’s blood type were under her own control. Any alleged errors in the blood typing could have been brought out if the appellant called the doctor responsible for testing her blood on January 30, 1990 or seeking a certified copy of her mother’s hospital records from the Allegheny Hospital in Cumberland, Maryland. As the appellant pursued neither of these avenues, the trial court properly relied upon the information regarding the respective blood types of the appellant and her mother that the appellant had supplied to the trustees. See Tops Apparel Manufacturing Company v. Rothman, 430 Pa. 583, 244 A.2d 436 (1968) (admissions made in pleadings, stipulations and the like are usually termed “judicial admissions” and as such, cannot be later contradicted by the party who has made them).

The appellant’s third contention is that the trial court erred in making a non-paternity finding based solely on the blood type records provided. The appellant contends that the records used were antiquated and inadequate. Thus, the trial court’s determination of non-paternity based on these records was premature and the case should be remanded for a full hearing with a full opportunity for discovery and to develop testimony on all of the records used for making a determination of paternity.

Claims of paternity made after the lips of the alleged father have been sealed by death must be subjected to the closest scrutiny and can be allowed only on strict proof so that injustice will not be done. Estate of Hoffman, 320 Pa.Super. 113, 466 A.2d 1087 (1983). In order for a child born out of wedlock to establish a right to participate in the distribution of the remainder of a trust to be distributed to the children of the deceased father, the claimant must establish by clear and convincing evidence that she is in fact the daughter of the decedent. 20 Pa.C.S.A. § 2107(c)(3). If a blood sample of the deceased putative father is available for testing, which might conclusively eliminate him as father or be used as some evidence of paternity, it is a relevant factor which should not be withheld from testing in order to facilitate the resolution on the issue of paternity since that form of proof does not compromise any state interests. Estate of Greenwood, 402 Pa.Super. 536, 587 A.2d 749 (1991). However, where a blood sample of the deceased putative father is not available, documentary evidence regarding the decedent’s blood type may be submitted. See Estate of Greenwood, supra, 587 A.2d at 757; Estate of Hoffman, supra, 466 A.2d at 1090; Estate of Blumreich, 84 Wis.2d 545, 560, 267 N.W.2d 870, 877 (1978). ABO blood tests are recognized in Pennsylvania as sufficient to independently prove non-paternity. Commonwealth v. Gromo, 190 Pa.Super. 519, 154 A.2d 417 (1959); Commonwealth v. Coyle, 190 Pa.Super. 509, 154 A.2d 412 (1959).

In the instant case, one of major problems an estate may have in defending against a paternity claim, that information concerning the decedent’s blood which might conclusively eliminate him as the father may not be available, has been averted. The certified records from Bryn Mawr Hospital regarding Walter C. Pew’s blood type came as a result of a blood transfusion he received on October 12, 1987. These certified records, which were neither antiquated nor insufficient, clearly established that Walter C. Pew had type 0 blood. The appellant’s own admission established that she had type AB blood. Accordingly, the ABO test used by the trial court was dispositive as a person with type 0 blood cannot be the father of a child with AB type blood because the type 0 blood putative father has neither an A or B antigen to pass on to his alleged offspring. See Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981) (blood grouping test demonstrates non-paternity when putative father belongs to group 0 and child belongs to group AB).

In her final issue, the appellant contends that the trial court erred in entering summary judgment in favor of the trustees when there were still unresolved issues of material fact regarding various blood types of all of the involved parties. The appellant argues that as the trial court improperly relied upon faulty blood typing information the granting of summary judgment in the trustees’ favor was premature and discovery should have been permitted to proceed. We disagree.

As stated earlier, in order to survive a motion for summary judgment, the non-moving party may not rely merely upon the controverted allegations of the pleadings, but must set forth specific facts by way of affidavit, or some other way as provided by Pa.R.C.P. 1035(d), demonstrating that a genuine issue exists. Larkin v. Metz, supra. Summary judgment may not be had where the moving party relies exclusively upon oral testimony, either through testimonial affidavits or deposition testimony, to establish the absence of a genuine issue of material fact; however, an exception occurs where the moving party supports the motion by using admissions of the opposing party or the opposing party’s own witnesses. Garcia v. Savage, 402 Pa.Super. 324, 586 A.2d 1375 (1991).

Instantly, the appellant offered no evidence which would refute the fact that Walter C. Pew had type O blood, she merely made unsupported assertions concerning the problems of blood typing and inapplicable rare exceptions to the rules of blood typing. The appellant has not alleged that a sample of the decedent’s blood is available for testing to refute the certified hospital records stating that Walter C. Pew had type 0 blood. As the trustees relied not only upon the official records concerning Walter C. Pew’s blood type, but also upon the appellant’s own admissions regarding her own and her mother’s blood types to prove that Walter C. Pew was not the appellant’s father, the trial court properly granted summary judgment in favor of the trustees.

Based upon the foregoing, the final decree determining non-paternity, granting summary judgment in favor of the trustees and dismissing the appellant’s claim with prejudice is affirmed.

Decree AFFIRMED.


author: CERCONE, Judge:

text:
    598 A.2d 71
    COMMONWEALTH of Pennsylvania v. Paul MIGUEL, Appellant.
    Superior Court of Pennsylvania.
    Argued June 11, 1991.
    Decided Oct. 17, 1991.

      Andrew G. Gay, Philadelphia, for appellant.
    Karen A. Braucheau, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before MONTEMURO, BECK and CERCONE, JJ.
   CERCONE, Judge:

This case involves an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County entered after a bench trial at which appellant was convicted of burglary, conspiracy, and criminal trespass. Appellant’s post-trial motions were denied and he was sentenced to a term of incarceration of twelve to twenty-four months and three years probation. After the judgment of sentence was rendered, new counsel for appellant filed a motion for reconsideration. This motion was denied.

Subsequently, on November 11, 1990, appellant filed a motion for new trial and arrest of judgment nunc pro tunc. In this motion, appellant claimed that trial counsel had failed to disclose to him certain crucial information, which made his waiver of jury trial involuntary. Appellant claimed that trial counsel was ineffective for this reason. After hearing, the lower court denied the motion, and this appeal, which was filed in a timely fashion, followed.

The charges on which appellant was convicted arose out of an incident involving the robbery of an elderly housewife by two men claiming to be employed by the city water department. The victim wrote down the license plate of the car in which the men fled. The car was identified as belonging to appellant’s mother. The victim also identified appellant from a police photo array.

Prior to trial, an incident occurred which later formed the basis of appellant’s nunc pro tunc motion for new trial and this subsequent appeal. Immediately before the trial in this case was to begin, the trial judge, the Honorable Pamela Pryor Cohen, called counsel for both parties into her chambers and explained that one of the court officers had received a telephone call from a person unknown to the court. This person claimed that Judge Cohen had been paid $3,700.00 to dismiss the case. The prosecuting attorney then indicated that he had received similar phone calls and had received the same call that another judge had been paid in this case, “and that’s why it was switched to this room.”

N.T.,

8/27/90, at 3. Judge Cohen commented:

I mean I’m not particularly bothered by it [the phone call]. It doesn’t affect my treatment of the case, but I thought I would make both sides aware of it and see if either side does want it sent out to a different room today, we’ll do that. Otherwise we’ll just go ahead and try it here.

Id. at 4. Counsel for appellant then stated that he had to talk to “them” about the phone call and the judge’s offer. He left the chambers, and on his return indicated that he had told “them,” and that “there was no objection to proceeding with you,” referring to Judge Cohen. The case then proceeded to trial. The court engaged appellant in a colloquy in which appellant waived his right to a jury trial.

At the hearing on appellant’s nunc pro tunc motion for new trial and arrest of judgment, appellant testified that his trial counsel did not make known to him what had transpired at the in camera conference with the judge prior to his trial. Appellant indicated that trial counsel made these facts known to him after his conviction. Appellant also testified that if he had known about the phone call prior to trial, he would not have waived his right to a jury trial.

At the same hearing, appellant’s father testified that he was present inside the courtroom prior to his son’s trial. He stated that prior to the commencement of trial, counsel for his son called him outside, and related to him the details of the telephone call to the judge. Appellant’s father indicated that he did not discuss the information conveyed to him by counsel with his son.

On appeal, appellant contends that he did not knowingly, voluntarily, or intelligently waive his right to a trial by jury, because of counsel’s failure to disclose the phone conversation and the judge’s offer to transfer the case to another room. He alleges that he was denied his right to effective assistance of counsel due to trial counsel’s failure to disclose this information to him prior to trial. Appellee, the Commonwealth, contends that since the lower court did not find credible appellant’s testimony at the hearing on his nunc pro tunc motion, that this court is bound by that determination. Appellee also argues that Judge Cohen’s finding was correct that appellant’s failure to call trial counsel as a witness at the hearing on the post-trial motions gave rise to an inference that appellant’s testimony was false concerning counsel’s disclosure to him of the events prior to trial. Finally, the Commonwealth contends that appellant produced no evidence establishing the lower court’s bias.

A defendant may waive his right to a jury trial and elect to be tried by a judge without a jury, with the approval of a judge in the court in which the case is pending. Pa.R.Crim.P., Rule 1101, 42 Pa.C.S.A. “The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver and such colloquy shall appear on the record.” Id. The actual waiver of jury trial is to be in writing, signed by the defendant, the judge, and the defendant’s attorney, and made part of the record. Id. The colloquy conducted by the trial court in connection with a defendant’s waiver of his right to a jury trial must apprise the defendant of these essential elements of a jury trial: that the jury would be selected from members of the community, that the verdict must be unanimous, and that the defendant would be allowed to participate in the selection of the jury. Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973); Commonwealth v. Shablin, 362 Pa.Super. 289, 524 A.2d 511 (1987).

In this case, the lower court conducted an on-the-record colloquy which included the essential elements of a jury trial as required by Commonwealth v. Williams, supra. Appellant also signed a written waiver of jury trial as mandated by Rule 1101. It thus appears that all necessary requirements were met with regard to a knowing and intelligent waiver of jury trial. Appellant contends, however, that we are required to go beyond what is set forth in the colloquy and written waiver to determine the adequacy of his waiver. He cites Commonwealth v. Shablin, supra, in support of this proposition.

Shablin does not require the result which appellant suggests. In that case, the trial court accepted appellant’s waiver of his right to a jury trial without conducting a colloquy as required by Rule 1101. Commonwealth v. Shablin, supra, 362 Pa.Super. at 291, 524 A.2d at 512. The record in Shablin also did not contain a copy of a written and signed waiver of jury trial form. Id., 362 Pa.Superior Ct. at 294, 524 A.2d at 513. The court held that, in these circumstances, it was necessary to go beyond the lack of a colloquy and “examine the circumstances surrounding appellant’s waiver of his right to a jury trial in order to determine whether that waiver was voluntary.” Id. See also Commonwealth v. DeGeorge, 506 Pa. 445, 485 A.2d 1089 (1984) (remand for evidentiary proceedings necessary to determine whether waiver of right to trial by jury was knowing and intelligent where no on-the-record colloquy appeared). The instant case differs from Shablin in that both a written waiver was executed and an on-the-record colloquy was conducted in compliance with Rule 1101, supra. This being the case, it is not necessary for this court to go beyond the record of these proceedings to determine the voluntariness of the waiver, as did the court in Shablin, supra. We conclude, based on the lower court’s adequate colloquy and the presence in the record of an executed written waiver that all necessary requirements of a knowing and voluntary waiver of jury trial were met.

Appellant also contends that his trial counsel was ineffective for allegedly failing to disclose to him the fact of the telephone conversation and other events prior to trial. He argues, citing Commonwealth v. Brown, 329 Pa.Super. 85, 477 A.2d 1364 (1984), and other cases, that counsel is ineffective where he/she fails to request recusal of a trial judge who indicates on the record his willingness to recuse himself. A successful claim of ineffectiveness of counsel requires proof of the following factors: that the course of action followed by counsel was unreasonable, that another meritorious course of action was available, and that the defendant was prejudiced by counsel’s course of conduct. Commonwealth v. Williams, 524 Pa. 218, 570 A.2d 75 (1990); Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Trial counsel is presumed to be effective and a defendant has the burden of proving otherwise. Commonwealth v. Williams, supra, 524 Pa. at 230, 570 A.2d at 81. In the context of a claim of ineffective assistance of counsel, prejudice is determined by an evaluation of whether, “but for the arguably ineffective act or omission, there is a reasonable probability that the result would have been different.” Commonwealth v. Petras, 368 Pa.Super. 372, 376, 534 A.2d 483, 485 (1987).

We will first address whether appellant has established that he was prejudiced by counsel’s actions, since a claim of ineffectiveness of counsel cannot be established without such a finding. See Commonwealth v. March, _ Pa. _, 598 A.2d 961 (1991) (to permit defendant to succeed on claim of ineffectiveness of counsel, court must provide separate finding of prejudice). In the instant case, we have searched appellant’s brief for a statement of his reasons for asserting that he was prejudiced by counsel’s alleged failure to inform him of the telephone conversation and Judge Cohen’s offer. The only such statement we have discovered is the following:

It cannot be denied that had defendant been apprised of the phone call and the recusal offer, he would not have waived his right to a jury trial.
Defendant believes that as a result of the allegations made in the phone call, Judge Cohen may not have been capable of rendering a fair verdict and/or sentence.

Brief for appellant at 11 (emphasis added).

We do not find this vague statement sufficient to support a finding of prejudice relative to an ineffectiveness of counsel claim. It is beyond question that allegations of ineffectiveness of counsel must be stated with specificity. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989); Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981). Abstract allegations and allegations stated in a vacuum are frowned upon and will not support an ineffectiveness claim. Commonwealth v. Durst, supra; Commonwealth v. Brown, 313 Pa.Super. 256, 459 A.2d 837 (1983).

A close look at the incident underlying appellant’s claim of ineffectiveness will reveal why his allegation of prejudice cannot be stated with more specificity. As previously indicated, prior to appellant’s trial, a telephone call was received by a court staff person. The caller, who was unknown to anyone in the court, stated that Judge Cohen had been paid $3,700.00 to dismiss appellant’s case. The prosecuting attorney stated that a similar call had been made to another judge. There was no indication in any of the testimony relative to this incident that appellant was linked in any way with either of these phone calls. The judge herself described the call as “apparently one of several trivial and pointless acts of maliciousness or paranoia.” Opinion of February 8, 1991, at 7. We are at a loss, based on the record before us, to characterize the assertedly prejudicial incident as anything more significant than a “prank” call, with little or no connection to the present case. In the absence of more specific allegations, we cannot discern how this tangential and meaningless telephone message by a person unknown to the court could have possessed such significance that it would have deprived the trial judge of her ability to fairly and impartially decide the legal issues in the case.

In addition to having failed to establish prejudice, appellant has not proved that his ineffectiveness claim possesses arguable merit. In Commonwealth v. Brown, 329 Pa.Super. 85, 477 A.2d 1364 (1984) and Commonwealth v. Nash, 292 Pa.Super. 79, 436 A.2d 1014 (1981), cited by appellant in support of his ineffectiveness claim, the trial judge in each case heard the cases of the respective appellants without a jury. In each case, the trial judge had also heard the appellant’s suppression motion. Prior to trial in each case, the lower court judge offered to recuse himself from presiding at the trial on the basis of the knowledge he had acquired during the suppression hearing. The court in Brown, citing Commonwealth v. Nash, supra, held that

a decision by a defendant that a particular judge try a non-jury case is solely the defendant’s decision and his counsel will not be deemed to be ineffective as long as the defendant makes the decision to remain before a particular judge with full knowledge of that particular judge’s prior involvement coupled with the knowledge that, upon request, he could have another judge hear the case.

Commonwealth v. Brown, supra, 329 Pa.Super. at 93, 477 A.2d at 1368. In Commonwealth v. Fields, 231 Pa.Super. 238, 331 A.2d 494 (1974), the trial judge offered to recuse himself after he inadvertently learned, during the jury waiver colloquy, that appellant had been previously incarcerated in a state penitentiary.

It is clear that the types of knowledge acquired by the trial judges in these cases was far different from and possessed a significantly greater potential for prejudice than did the innocuous phone call of which appellant complains in the instant case. The knowledge acquired by the trial judges in Brown, Nash, and Fields was a potentially prejudicial type of knowledge concerning the defendant himself and the defendant’s participation in, of alleged participation in unlawful activities. No such knowledge was acquired by Judge Cohen in this case. She, in fact, did not acquire any knowledge about appellant in the phone call which is the subject of this litigation, much less any prejudicial knowledge. There is thus no merit to appellant’s claim that trial counsel was required to accept the judge’s offer to transfer the case to another room as this case has no similarity to the situations in which such failure has been presumed to constitute ineffectiveness of counsel.

Having found appellant’s claim of ineffectiveness to be lacking in arguable merit and having also failed to unearth any basis upon which appellant would have been prejudiced by prior counsel’s alleged failure to make known to him the existence of the telephone call regarding Judge Cohen, we must conclude that appellant has failed to establish the existence of all of the essential elements of a valid claim of ineffectiveness of counsel.

Judgment of sentence affirmed.

BECK, J. concurs in the result.

      . Our repeated reference to counsel’s "alleged” failure to make known to appellant the telephone call is based upon the lower court’s finding that appellant's testimony in this regard was not credible. Since prior counsel did not testify at the post-trial motions hearing, and since we are bound by the lower court’s conclusion that she did not find appellant to be credible, we have at most an allegation that counsel did not disclose the information to appellant.


author: HESTER, Judge:

text:
    598 A.2d 76
    In re Dr. Hans M. SYLVESTER Dr. Hans M. Sylvester, Marjorie Szerlip. Appeal of William B. BIRCH and Violet Fagerstrom.
    Superior Court of Pennsylvania.
    Argued Aug. 15, 1991.
    Decided Oct. 23, 1991.

      Cletus P. Lyman, Philadelphia, for appellants.
    Robert M. Diorio, Media, for Szerlip, appellee.
    Before ROWLEY, President Judge, and BECK and HESTER, JJ.
   HESTER, Judge:

This appeal involves the propriety of guardianship proceedings conducted in the Orphans’ Court Division of the Court of Common Pleas of Delaware County. We conclude that the orphans’ court erred by ignoring the dictates of 20 Pa.C.S. § 5604(c)(2), which provides that a principal executing a power of attorney may nominate the guardian of his estate and that the court “shall” appoint the person so nominated as guardian of the estate except for “good cause or disqualification.” Accordingly, we reverse the October 30, 1990 decree appointing Joseph E. Lastowka, Jr., Esquire, guardian of the estate and person of Dr. Hans M. Sylvester, an incompetent, and remand for a hearing consistent with this adjudication.

The record establishes the following. Appellee, County of Delaware Services for the Aging, instituted this action on September 10,1990, by filing a petition for the appointment of a temporary guardian of both the person and estate of Dr. Hans M. Sylvester. The allegations in the petition are as follows. . Dr. Sylvester is a ninety-five-year-old resident of a nursing home in Bryn Mawr. Due to infirmities of old age, he is unable to manage his property or affairs and is liable to dissipate it and/ or become the victim of designing persons.

William Birch and Violet Fagerstrom, appellants, were named by Dr. Sylvester as his attorneys-in-fact in an instrument executed on March 12, 1990, and recorded on June 29, 1990, in the Orphans' Court Division of the Court Of Common Pleas of Philadelphia County. They also are the executors named in his will. The attorneys-in-fact, it is alleged, attempted to “isolate” Dr. Sylvester by instructing nursing home personnel not to allow friends to visit him. Reproduced record (“R.R.”) at 3a. Dr. Sylvester has asked to return to his home, but appellants listed his home for sale.

On August 31, 1990, Doctor Irving S. Wiesner examined the alleged incompetent; a copy of his report is attached to the petition. The report indicates that Dr. Sylvester practiced medicine in Philadelphia until a year prior to institution of the proceedings. He recently fell, injuring his shoulder. This resulted in the nursing home placement. The report also indicates that there “has been some question recently on the improper activity on the part of his former secretary [appellant, Mrs. Fagerstrom,] and a man named [appellant, Mr. Birch,] with whom Dr. Sylvester has had dealings concerning the purchase of art works. Friends of his have complained that he has been hidden from them and the nursing home was given a list of people who could not visit him.” Id. at 6a. The report further states that “Dr. Sylvester’s home has been put up for sale without his knowledge, and there is suspicion that sums of money have been possibly misused.” Id.

Dr. Sylvester told Dr. Wiesner that “[Ms. Fagerstrom] had been very upset about not being mentioned in his will and that he had set up another will approximately five years ago. He is confused as to when power of attorney was given and thinks that it was at the time of the rewriting of the will.” Id. at 7a. In addition, Dr. Sylvester stated that Mr. Birch was his enemy and “ ‘has gotten hold of my secretary. I have quite a bit of money. I noticed he was acting as if [he was] maneuvering himself into position to get that money.’ ” Id. In Dr. Wiesner’s opinion, the alleged incompetent already was the victim of designing persons, and he strongly recommended the appointment of a temporary guardian.

A certified copy of the power of attorney executed by Dr. Sylvester is in the record. It was executed six months prior to the institution of the guardianship proceedings. The document is a durable power of attorney and in it, Dr. Sylvester nominates “VIOLET FAGERSTROM and WILLIAM B. BIRCH, to be my legal guardians, for consideration by the court in any guardianship proceedings.” R.R. at 21a.

Without notice, the orphans’ court issued an order on September 10, 1990, appointing an independent party as temporary guardian for the person and the estate of Dr. Sylvester. On October 8, 1990, appellee filed a petition to adjudicate Dr. Sylvester an incompetent and to appoint a permanent guardian for his estate and person. That same day, the orphans’ court issued a citation for rule to show cause why the doctor should not be adjudicated incompetent and scheduled a hearing on the rule for October 30, 1990. The order directed that notice of the hearing be given to Dr. Sylvester only. This petition contains the following additional allegations relating to appellants. The durable power of attorney was executed when Dr. Sylvester was hospitalized at Germantown Hospital due to injuries suffered in the fall. Appellant Fagerstrom is a “long-time” bookkeeper for the doctor. Id. at 12a. Appellant Birch’s relationship to the doctor is “unknown at this time but it is believed Mr. Birch was a former patient of Dr. Sylvester before Mr. Birch moved to Aetna, New Hampshire ...” Id. at 13a. Within the past two weeks, “it is believed that [appellants] have sold some of Dr. Sylvester’s personal belongings, which include substantially valued antique furniture and expensive paintings.” Id. The temporary guardian informed appellants of the proceedings, and they gave him assurances that they would cooperate and provide any relevant financial information. The temporary guardian also spoke with counsel for appellants, and counsel stated that his clients will provide “any and all” necessary financial information. Id. at 16a.

Appellants filed preliminary objections to the petition seeking appointment of a permanent guardian, contending that the proceedings should have been instituted in Philadelphia County, where Dr. Sylvester resided prior to moving to the nursing home. The preliminary objections also indicate that appellants were appointed as executors of the doctor’s will and as testamentary co-trustees of a trust created in the will. The will is dated October 30, 1988.

The following occurred at the hearing held on October 30, 1990. The orphans’ court first dismissed the objections to jurisdiction. Then, an attorney for Catherine Merkle entered his appearance before the court. Ms. Merkle asked to be considered as guardian, but the orphans’ court summarily dismissed her request. Dr. Wiesner testified as to Dr. Sylvester’s mental condition. Appellee rested, making no attempt to prove the allegations of wrongdoing against appellants.

The orphans’ court then refused to take any further testimony. Appellants first attempted to introduce depositions that they took between the time that they were notified of the incompetency proceedings by the temporary guardian and the hearing, a period of six days. They notified appellee by FAX that they wanted to depose three physicians, including the doctor’s personal physician. Appellee objected to introduction of this evidence by appellants on grounds that it had not been timely notified of the depositions; the orphans’ court sustained the objection.

Next, appellants, who were both present, asked to testify in order to answer the allegations of breach of confidence contained in the petitions and to enable the orphans’ court to consider appointing them as guardians, in accordance with the instructions in the power of attorney. The orphans’ court admitted appellants’ affidavits into evidence as offers of proof as to their proposed testimony, but it refused to allow them to testify. The court then summarily appointed an independent guardian. No testimony was taken as to the allegations of impropriety on the part of the appellants. This appeal followed entry of the final decree dismissing appellants’ exceptions to the decree appointing a permanent guardian of Dr. Sylvester’s estate.

We now will examine what evidence would have been presented by the affidavits and depositions that the orphans’ court refused to consider in making its guardianship appointment. In the 1930s, Dr. Sylvester moved from Germany to Philadelphia, where he lived and practiced medicine for approximately 60 years. He never married. Ms. Fagerstrom was introduced to the doctor in 1972 or 1973, when she became his bookkeeper. She remained in that position until 1990. She would write his checks, maintain account registers, record interest on investments, complete medicare forms, and draft letters. On May 3, 1978, Dr. Sylvester executed a will naming Ms. Fagerstrom co-executor of his estate.

Mr. Birch first met Dr. Sylvester in late 1978 or early 1979, as a patient, and the two became friends. Mr. Birch and his family went with Dr. Sylvester to church occasionally and for picnics on property that Dr. Sylvester owned in the Poconos. Mr. Birch dined with Dr. Sylvester several times each month from 1978 to 1986, when Mr. Birch moved to New Hampshire. Since 1986, Mr. Birch has visited with Dr. Sylvester in Philadelphia approximately every two months. Dr. Sylvester was also the treating physician for Mr. Birch’s wife and three children. Dr. Sylvester first asked Mr. Birch to be an executor of his estate in 1986.

In early October, 1988, Dr. Sylvester fell down the staircase in his house, and on October 9, 1988, he was admitted to Germantown Hospital. While there, Dr. Sylvester was under the supervision of Wallace G. McCune, M.D., who had been Dr. Sylvester’s physician since January 17, 1985. On October 30, 1988, while Dr. Sylvester was still in the hospital, he executed a will naming Ms. Fagerstrom and Mr. Birch as co-executors of his estate. After Dr. Sylvester’s, fall and his return home, Ms. Fagerstrom began to handle all of his affairs. Dr. Sylvester recuperated from his fall and returned to practicing medicine.

On March 5,1990, Dr. Sylvester was admitted to German-town Hospital for prostate surgery and heart problems. After the operation, appellants discussed Dr. Sylvester’s condition and concluded that he needed aid in managing his affairs. They discussed a power of attorney with Dr. McCune, who concurred that Dr. Sylvester should execute a power. Both Ms. Fagerstrom and Dr. McCune discussed a power with Dr. Sylvester, and on March 12, 1990, Dr. Sylvester executed the power of attorney in the presence of Ms. Fagerstrom, Kathleen Merkle, Anneliese Pfeiffer, who is Dr. Sylvester’s housekeeper, and a notary public.

Kathleen Merkle, who appeared at the incompetency hearing and asked to be appointed guardian, and her husband, William, own a health food store near Dr. Sylvester’s house. While Dr. Sylvester was in the hospital, Mrs. Merkle told Ms. Fagerstrom that one of the doctor’s patients needed medicine from the doctor’s office. Mrs. Merkle said she wanted the medicine and a syringe in order to administer the medicine. Mrs. Merkle is not a doctor but insisted that she was capable of administering the medicine. Ms. Fagerstrom refused her entry to Dr. Sylvester’s office. Mrs. Merkle then asked Mr. Birch if she could get the medicine and syringe from Dr. Sylvester’s office, but he also refused.

On March 17, 1990, Dr. McCune discharged Dr. Sylvester to his home on the condition that he receive continual nursing assistance. Some of the doctor’s old patients then started to visit him. Despite Dr. McCune’s advice to stop practicing medicine, Dr. Sylvester continued to prescribe medication for those patients. He would send Mrs. Pfeiffer to the drugstore for the medication and then direct her to deliver it.

In April, 1990, problems arose with Mrs. Merkle. Mrs. Fagerstrom learned from a nurse caring for the doctor that Mrs. Merkle was a regular visitor and that she insisted upon preparing Dr. Sylvester’s food. The nurse also told Ms. Fagerstrom that Mrs. Merkle was ordering the nurses around, antagonizing them, and constantly interfering with their care of Dr. Sylvester. One nurse resigned due to Mrs. Merkle. Mrs. Merkle also attempted to charge $200 a week for her services, which appellants refused to pay after initially paying for three weeks.

Care of Dr. Sylvester also was disrupted by a constant flow of visitors into his house. Many people had keys to the house, including the Merkles, and other people who appellants did not know. Appellants changed the locks on the doors to Dr. Sylvester’s house. The Merkles were upset that they did not have keys to the house and became abusive by ringing the doorbell and yelling at the nurses, even when Dr. Sylvester was asleep.

Appellants also began to experience problems with Ms. Pfeiffer, who was then eighty-six. On one occasion, she gave the doctor medication prescribed to treat a heart beat irregularity, even though he had been given his dosage for the day. She then left the open vial of pills near Dr. Sylvester’s bedside. When a nurse came in to check his blood pressure, the overdose had affected it significantly. Ms. Pfeiffer also was frequently confused and disoriented. Appellants asked her to retire.

Following his prostate surgery, Dr. Sylvester initially made progress physically, and he was mentally alert. However, in early June, Dr. Sylvester’s mind began to deteriorate. Mr. Birch noticed a distinct change in Dr. Sylvester. He was always in bed, seemed disoriented, and his actions were bizarre. On two occasions, Dr. Sylvester left his home in the middle of the night. The first time, he was found sitting on the pavement near his house by two men, who brought him home. The second time, police were involved.

Appellants began to discuss entry into a convalescent home with Dr. Sylvester, who said he would be willing to go. Dr. McCune also came to believe that a nursing home was an appropriate facility due to Dr. Sylvester’s deteriorating condition. Appellants then asked Dr. O. Spurgeon English to examine Dr. Sylvester. Dr. English interviewed Dr. Sylvester for approximately six hours during three visits on June 18, June 21, and June 30, 1990. On the first visit, Dr. English conducted memory tests and determined that Dr. Sylvester’s memory was impaired substantially, although he was not then suffering from paranoid delusions that may accompany senile dementia. The doctor did express some suspicions toward Mr. Birch but refused to elaborate on them.

Dr. Sylvester thought that he was still in the hospital during all three of Dr. English’s visits. Dr. English concluded that Dr. Sylvester should no longer practice medicine. Dr. English also felt that Dr. Sylvester’s condition had deteriorated over the course of the three visits since his memory loss was more pronounced and since he voiced suspicions about someone tampering with his estate by the June 30th visit. Although Dr. Sylvester initially was reluctant to leave his home, Dr. English felt that he may fall there and recommended that he move to a nursing home. On July 16, 1990, Dr. Sylvester entered Bryn Mawr Terrace Nursing home in Delaware County.

Problems continued once Dr. Sylvester entered Bryn Mawr Terrace. Ms. Pfeiffer insisted that she was taking Dr. Sylvester home with her. On at least four occasions, Ms. Pfeiffer was escorting Dr. Sylvester down the hallway to her house when intercepted by nursing home personnel. Other people, including the Merkles and former patients, also told staff that they intended to remove Dr. Sylvester from Bryn Mawr Terrace. Appellants then instructed nursing home staff to prevent these people from seeing Dr. Sylvester. These proceedings were instituted soon thereafter.

We now consider the legal issues raised in this appeal. Appellants first suggest that the Orphans’ Court of Delaware County lacked jurisdiction over the incompetent because at the time proceedings were instituted, he remained domiciled in his home in Philadelphia. See 20 Pa.C.S. § 5512 (guardian of person of estate may be appointed by court of county where the incompetent is domiciled). We disagree as the record establishes that Dr. Sylvester had a fixed intent to live at the nursing home. Dr. English’s deposition indicates that Dr. Sylvester agreed to move to the nursing home. In their affidavits, appellants both state that they each discussed the move with the doctor, that he agreed to move to the nursing home, and that he was happy with the home since moving there. Furthermore, appellants have sold the doctor’s home and furnishings. Thus, the record refutes that the move was not of choice as was the case in Coulter’s Estate, 406 Pa. 402, 178 A.2d 742 (1962), where the Supreme Court ruled that a person who moves into a nursing home due solely to physical necessity has not changed his domicile. Instead, Dr. Sylvester was cognizant of the permanent change of residence, assented to it, and was satisfied with the new arrangements. Accordingly, he changed his legal domicile to the nursing home. See Estate of McKinley, 461 Pa. 731, 337 A.2d 851 (1975) (domicile is place where person has voluntarily fixed his habitation with intent to make it a permanent home).

Appellants next contend that the proceedings for the appointment of the temporary guardian were improper due to a lack of notice and that the decree appointing the temporary guardian was deficient under section 5513 of the Probate, Estates, and Fiduciaries Code (the “Probate Code”), 20 Pa.C.S. § 5513. We agree with the latter argument. As to notice, however, section 5513, which governs appointment of temporary guardians, provides that notice of the appointment of a temporary guardian shall be required “as shall appear to the court to be feasible in the circumstances,” and notice does not have to be given to the persons required to be given notice of permanent guardianship proceedings instituted under section 5511 of the Probate Code. The notice provision of section 5513 has been interpreted by our Supreme Court in Estate of Dorone, 517 Pa. 3, 534 A.2d 452 (1987), where a temporary guardian was appointed for an unconscious patient for the purpose of consenting to blood transfusions. The patient arrived at a hospital unconscious and in immediate need of an operation to save his life. The hospital obtained the consent of the patient’s parents for the operation, but based on their religious beliefs, the parents refused to give permission for necessary blood transfusions. While the patient was on the operating table waiting for the surgical procedure, his physician and the hospital administrator telephoned the orphans’ court and requested the appointment of a temporary guardian under section 5513. The court immediately appointed the hospital administrator temporary guardian for the limited purpose of consenting to the blood transfusions. The incompetent’s parents objected to the proceedings based on the fact that the hearing had been conducted without notice to them or their testimony. The Supreme Court approved of the procedure utilized, concluding that the hearing conducted was sufficient and that notification was properly eliminated under the dictates of section 5513 due to the circumstances.

Applying the reasoning of the Dorone opinion to the facts of this case, we conclude that the orphans’ court properly dispensed with notice of the temporary guardianship proceedings to appellants. Based on the allegations of the petition, Dr. Sylvester’s best interests required the immediate appointment of a temporary guardian. Those allegations presented the orphans’ court with the following facts. Appellants, who were appointed attorneys-in-fact six months previously, allegedly isolated the doctor from his friends and were disposing of his assets in a manner contrary to his wishes. Appellants also were allegedly misappropriating the doctor’s assets. The petition also indicates that the incompetent himself expressed concern that appellants were not acting in his best interests. The orphans’ court, therefore, reasonably dispensed with notice to appellants, as it would have given them the opportunity to take actions with the incompetent’s assets that may have prevented recovery on his behalf if, in fact, misappropriation had occurred. Considering the best interests of the alleged incompetent and. with only the allegations of the petition before it, the orphans’ court decision to appoint a temporary guardian without notice comported with the purpose of section 5513. See Id. (court’s criterion in a guardianship setting is best interests of the incompetent).

However, the orphans’ court’s failure to specify the powers of the temporary guardian in the decree was incorrect and contrary to the express provisions of section 5513. That section provides that a guardian appointed pursuant to the section “shall only have and be subject to such powers, duties and liabilities and serve for such time as the court shall direct in its decree.” In the present case, the decree of the orphans’ court fails to enumerate any powers that the temporary guardian was to have.

Just as section 5513 dispenses with notice when appropriate, so does it provide that the powers of a guardian so appointed be carefully circumscribed. This is necessary because the appointment itself may be based, as in this case, on ex parte communication, and those communications, as was apparently the case here, could be false. The section itself clearly envisions that only those powers that are required by the circumstances necessitating the appointment of the temporary guardian are to be granted in the decree and that the decree must be specific. Thus, in Dorone, since a temporary guardianship was needed only for the purpose of consenting to the blood transfusions, the court gave the temporary guardian the power only to consent to transfusions. In this case, the temporary guardianship was necessitated by allegations that the incompetent’s attorneys-in-fact were abusing their trust. Accordingly, the temporary guardian’s powers should have been expressly limited to an investigation into those allegations. Instead, the guardian “revoked” the power of attorney and assumed control over the incompetent’s assets. Meanwhile, it appears that the allegations against appellants were unfounded. Appellants immediately cooperated when contacted by the temporary guardian, and they offered to provide a full accounting of their administration of the incompetent’s assets.

The temporary guardian in this case completely usurped the function of the attorneys-in-fact, even though subsequent investigation apparently would have revealed that appellants had not misused their positions but instead were acting in the incompetent’s best interest by selling his home and preventing Mrs. Pfeiffer and the Merkles from seeing him. Thus, far from isolating him from friends, appellants, with the agreement of nursing home staff and the incompetent’s personal physician, were not permitting people to see him who were misusing the doctor’s power to prescribe medication, when he was incompetent to exercise that power, and who were attempting to remove him from nursing care that he needed. Appellants were the people in whom Dr. Sylvester entrusted his physical and financial affairs when he was competent to make that decision. The Merkles apparently initiated these guardianship proceedings based on false allegations of misuse of the incompetent’s funds. Dr. Sylvester’s fears about Mr. Birch attempting to obtain his money are apparently unfounded and the result of senile dementia, not fact. Proper investigation into the truth of the allegations would have obviated the need for any further proceedings.

The court further compounded its error by failing to timely notify appellants of the permanent guardianship proceedings and to consider appointing them as permanent guardians. Section 5511, which provides for the appointment of a permanent guardian, does not dispense with notice requirements but clearly provides that notice of the hearing shall be given to the incompetent, to those entitled to share in the incompetent’s estate, and “to such other parties as the court may direct.” See In re Katic, 294 Pa.Super 347, 439 A.2d 1235 (1982) (the court may not dispense with the notice requirements contained in section 5511).

Section 5511 must be read together with section 5604(c)(2) of the Probate Code, which states that if a principal nominates by durable power of attorney the guardian of his estate, the “court shall make its appointment in accordance with the principal’s most recent nomination ... except for good cause or disqualification.” (Emphasis added). As appellants were to be appointed guardians in accordance with the dictates of section 5604(c)(2), they should have been provided sufficient notice of the hearing, and they also should have been provided the opportunity to present all their evidence regarding their actions as powers of attorney. In the absence of proof of good cause or disqualification based on competent evidence at the guardianship hearing, there was no need to appoint an independent party as permanent guardian.

We believe that the orphans’ court in In re Conover, 4 Fid.Rptr.2d 200 (Bucks Co.1984), adopted a sound approach in this area. There, cousins of the alleged incompetent filed a petition for guardianship. The court conducted a full evidentiary hearing and determined that the incompetent had executed a durable power of attorney in favor of a stepsister with whom she had a long relationship! The stepsister testified at length as to her management of the incompetent’s affairs, and the court was satisfied that she had acted wisely, especially in her sale of the incompetent’s home once the incompetent entered a nursing home facility. The court observed that the attorney-in-fact had a complete accounting of the incompetent’s assets, which she did not commingle with personal funds, and was trustworthy. The court then dismissed the guardianship proceedings as unnecessary and allowed the stepsister to continue in her function as power of attorney. See also In re Howard, 9 Fid.Rptr.2d 338 (York Co.1989) (where person executes durable power of attorney, court should construe this as reposing great confidence in nominee, and where nominee is trustworthy, the court should dismiss guardianship proceedings as unnecessary, allowing attorney-in-fact to continue to operate).

In the present case, the record indicates that appellants had a long, close personal relationship with Dr. Sylvester, who had no relatives. Mrs. Fagerstrom had faithfully performed all his bookkeeping for fourteen years and according to her affidavit, with very little remuneration. Mr. Birch was a close personal friend and financial advisor. While competent, Dr. Sylvester placed great confidence and trust in appellants, naming them both executors of his will and then his attomeys-in-fact. There is no indication that that trust was abused. Appellants both immediately responded to the request for financial information and cooperated completely with the temporary guardian. They properly placed Dr. Sylvester’s home and furnishings on the market since he was not going to return from the nursing home. These guardianship proceedings were instituted at the request of people whose conduct was highly questionable and who should not have been seeing Dr. Sylvester. The incompetent’s estate already has been charged $9,183 in guardianship fees, even though a guardianship may not have been warranted if the proceedings had been conducted with the incompetent’s interests in mind and after proper investigation. A person has the right to chose who shall have control over his finances in the event of incompetency without interference by the courts, which should become involved only in circumstances indicating that the incompetent’s interests are not being served. The evidence may establish that that was not the case herein.

Order appointing a permanent guardianship is reversed. Case is remanded for proceeding consistent with this adjudication. Jurisdiction relinquished.

BECK, J., concurs in the result.

      . As the issues in this case relate to the procedural propriety of the proceedings and to whether appellants should have been appointed as guardians, we will not examine in detail the medical evidence relating to Dr. Sylvester’s mental condition. It is clear that the orphans' court determination that the doctor is incompetent is supported by the medical evidence.

      . There are no allegations that the power is invalid.

      . At the incompetency hearing, Mrs. Merkle’s attorney gave her first name as Catherine; however, the affidavits submitted by appellants state that her name is Kathleen.


author: DEL SOLE, Judge:

text:
    598 A.2d 287
    COMMONWEALTH of Pennsylvania v. Robert BARTOLACCI, Appellant.
    Superior Court of Pennsylvania.
    Argued April 16, 1991.
    Filed Sept. 5, 1991.
    Reargument Denied Nov. 4, 1991.

      Thomas J. Schuchert, Pittsburgh, for appellant.
    James R. Gilmore, Asst. Dist. Atty., Pittsburgh, for the Com., appellee.
    Before McEWEN, DEL SOLE and FORD ELLIOTT, JJ.
   DEL SOLE, Judge:

This is a direct appeal from the Judgment of Sentence which directed that Appellant serve the mandatory term of three to six years imprisonment following a jury conviction of Homicide by Vehicle While Under the Influence of Alcohol. Although we dismiss many of the claims made by Appellant on appeal, we find merit to Appellant’s claim that the trial court erred when it excluded relevant evidence of other accidents which occurred at this accident site. Accordingly, we vacate the sentence, reverse the conviction and remand this matter for a new trial.

The accident occurred as a vehicle Appellant was operating exited the Oakland exit of the Parkway and entered Forbes Avenue at approximately 2:10 a.m. Shortly after entering Forbes Avenue, the vehicle collided with a steel pole situated on the curb of the road. A back seat passenger, Ms. Guilbeau, was thrown forward and sustained a head injury which eventually resulted in her death. At trial the Commonwealth offered testimony of Appellant’s consumption of alcoholic beverages prior to the accident, and the results of blood alcohol tests which were later performed at Mercy Hospital.

Appellant presents three issues for our review. He contends that the Commonwealth failed to prove that the death of Ms. Guilbeau was caused by his driving with an blood alcohol level in excess of .10%. In a related vein he submits that the Commonwealth did not establish by competent evidence that his blood alcohol content at the time he was operating the vehicle was .10% or greater. In his last issue he contends that the court abused its discretion and committed an error of law when it failed to permit evidence of other circumstances that the jury could find to be the primary or direct cause of the death in question. Included in the first two issues are numerous subissues which need not be addressed in view of the fact that we determine a new trial must be awarded. However, Appellant does include a question as to whether the blood testing results should have been suppressed based upon a lack of consent. For the reasons expressed in the trial court opinion, we readily dismiss this claim.

The first two issues presented by Appellant call in question the apparent practice of testing blood serum. The Commonwealth in an effort to prove that the Ms. Guilbeau’s death was caused by Appellant driving with a blood alcohol content of .10% or greater offered expert testimony based upon blood tests performed after the accident. It became apparent during cross-examination that the testing of Appellant’s blood was a test performed on serum rather than whole blood. The manager of the toxicology section of the Allegheny County Department of Laboratories testified that serum is acquired after a whole blood sample is centrifuged and the top liquid residue is removed. This witness also testified that when serum blood is tested the results will show a blood alcohol content which can range from between 10 to 20 percent higher than a test performed on whole blood. The statute which addresses blood alcohol content makes it an offense for a person to operate a vehicle while “the amount of alcohol by weight in the blood of the person is 0.10% or greater.” 75 Pa.C.S.A. § 3731(a)(4). The witness testified that a reference to the amount of alcohol in blood by weight refers to whole blood.

While our statutes do not dictate in what form blood must be tested, only evidence of the amount of alcohol by weight in the person’s blood can support a conviction based upon a violation of § 3731. Where a test is performed on blood serum rather than whole blood, the fact finder must be informed of this and must be provided with evidence of the alcohol by weight in the defendant’s blood in order to properly sustain a conviction based upon a violation of § 3731. Evidence offered of a reading based upon a test of blood serum, without conversion, will not suffice.

In this case during cross examination the jury was informed through expert testimony that the blood alcohol test performed on Appellant’s blood serum after the accident yielded a result of .156%. In an effort to determine that the death in this case was a “direct result” of Appellant’s violation of § 3731(a)(4), the Commonwealth’s expert also testified regarding Appellant’s blood alcohol level related back at the time of the accident. The expert took into account what he found to be appropriate amounts for the absorption of alcohol consumed shortly prior to the accident, and arrived at a figure of .138%. The jury was also advised through cross examination of the need to convert this figure to determine the alcohol by weight in Appellant’s blood. The expert opined that a 15% conversion rate would be appropriate. From this testimony the jury was free to conclude that Appellant’s whole blood alcohol content at the time of the accident exceeded .10%. Although the jury was provided information from which to determine Appellant’s blood alcohol level, we caution the Commonwealth that a conviction based upon a violation of § 3731(a)(4). will not be upheld absent clear evidence that the alcohol content in a defendant’s blood is .10% or greater and that evidence of test results based solely on blood serum will not suffice to sustain a conviction.

We turn now to Appellant’s claim that the trial court erred when it refused to admit evidence which he submits was critical to his defense. At trial Appellant sought to admit evidence of other accidents which occurred at the location of this accident and evidence of the subsequent removal of the utility pole which his vehicle struck. Appellant offered this evidence to rebut the Commonwealth’s evidence which was offered to show that the accident and resulting death occurred as a result of his drunk driving. Appellant desired to prove that the dangerous condition of the roadway and the location of the utility pole were the cause of the accident. Guided by the Pennsylvania Supreme Court decision in Commonwealth v. Uhrinek, 518 Pa. 532, 544 A.2d 947 (1988), we agree.

In Uhrinek the trial court excluded evidence of the intoxication of a pedestrian who was struck and killed by a vehicle operated by the appellant. The Supreme court reversed his homicide by vehicle conviction and remanded for a new trial finding that this evidence was relevant to the appellant’s theory of the cause of the accident. The court cited the homicide by vehicle statute. It reads:

Any person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic ... is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death.

75 Pa.C.S.A. § 3732 (emphasis added.)

The Uhrinek court noted that this statute places the burden of proving the causal connection between death and the wrongful act, beyond a reasonable doubt, upon the Commonwealth. “The defendant’s conduct must be a direct and substantial cause of the injury.” Id., 518 Pa. at 540, 544 A.2d at 951. This same burden is placed upon the Commonwealth in proving a violation of 75 Pa.C.S.A. § 3735, which provides:

Any person who unintentionally causes the death of another person as the direct result of a violation of section 3731 (relating to driving under the influence of alcohol or controlled substance) ... is guilty of a felony of the third degree when the violation is the cause of death____

(emphasis added.)

The Uhrinek court concluded that the trial court’s failure to permit the appellant to present this evidence to the jury prevented him from challenging the causal connection between his conduct and the accident. The court stated:

‘An accused has a fundamental right to present defensive evidence so long as such evidence is relevant and not excluded by an established evidentiary rule.’ Once it is determined that the proffered evidence was relevant, due process requires its admission. ‘Even the most myopic interpretation of [Article I, Section 9 of the Pennsylvania Constitution] would necessarily concede the right to offer relevant evidence to challenge a material issue of fact.’ ‘Causation is an issue of fact for the jury.’

Id., 518 Pa. at 542, 544 A.2d at 952 (citations omitted.)

As in Uhrinek, Appellant here sought to have admitted evidence to establish that something other than his violation of the law was the cause the accident and the resulting death. This evidence was of two types. First, he offered evidence of previous accidents which occurred at the site where the utility pole was located to demonstrate that a dangerous condition existed at that location. Appellant also sought to have introduced testimony on the subsequent removal of the utility pole. Appellant states that he intended to offer evidence that the pole was removed “because it had been the site of many previous, similar accidents and was considered by the Pennsylvania Department of Transportation to be a dangerous condition.” Appellant’s Brief at 43. Evidence which could establish the dangerous condition of the roadway and which could account for the “cause” of the accident was clearly relevant in this case. In a criminal trial where the jury has the responsibility of determining the “direct cause” of death in order to decide whether or not to covict the defendant of homicide by vehicle, evidence of other factors which may have been the direct cause of death is clearly appropriate.

Following the lead of Commonwealth v. Uhrinek, supra, we reverse Appellant’s conviction, vacate his Judgment of Sentence and remand this case for a new trial.

Jurisdiction relinquished.

      . See 75 Pa.C.S.A. § 1547(c) and 28 Pa.Code 5.1(v) (defining a "specimen” as “materials derived from the human body regardless of the physical character of such material.”)

      . While evidence of the removal of the pole, alone, would be irrelevant absent testimony as to the reasons for its removal, where it can be demonstrated that the pole was removed because it created a hazard, this testimony is directly relevant to the ultimate determination of the cause of the accident.