author: McEWEN, Judge:

text:
    648 A.2d 546
    COMMONWEALTH of Pennsylvania v. William J. COSGROVE, Appellant.
    Superior Court of Pennsylvania.
    Argued April 26, 1994.
    Filed Aug. 25, 1994.
    Reargument Denied Nov. 3, 1994.
    Morey M. Myers, Scranton, for appellant.

      Andrea F. McKenna, Deputy Atty. Gen., Harrisburg, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and HOFFMAN, JJ.
   McEWEN, Judge:

Appellant, William J. Cosgrove, has filed this appeal as of right from the order, entered November 3,1993, which denied, without prejudice, his petition to dismiss the criminal complaint filed against him by the Office of the Attorney General charging him with the offenses of theft by deception, unsworn falsification to authorities, and corrupt organizations. We are constrained, for the reasons set forth hereinafter, to quash this appeal as premature.

Appellant, doing business as the North End Plumbing Company and North End Plumbing, Inc., was charged by criminal complaint dated March 22, 1993, and sworn to by Special Agent Michael Crossin of the Office of the Pennsylvania Attorney General, with 24 counts of theft by deception, and 24 counts of unsworn falsification to authorities, based upon appellant’s request for and receipt of allegedly excessive amounts of reimbursement pursuant to a contract with the Scranton Sewer Authority during the calendar year 1991— AND, AS WELL, A FURTHER COUNT OF CORRUPT ORGANIZATIONS. Appellant was arrested on March 22, 1993, and, on April 15, 1993, 14 days prior to the scheduled preliminary hearing, filed a petition for a rule to show cause why the complaint should not be dismissed or, in the alternative, why a “Goodman” hearing should not be held prior to the preliminary hearing. The trial court granted the rule to show cause and entertained argument by the parties on June 3, 1993, and September 20, 1993.

The distinguished Judge Carlon M. O’Malley, on November 3, 1993, following submission of memoranda by counsel, denied, without prejudice, appellant’s petition to dismiss the criminal complaint, noting, however, that “serious questions are being raised herein relative to the authority of the Attorney General to institute these proceedings”. Appellant, on December 3, 1993, filed an appeal as of right to this Court pursuant to Pa.R.App.P. 313. Appellant also filed, as a pre-' cautionary appeal, a petition for permission to appeal an interlocutory order, aware of the compelling arguments of the Commonwealth in support of their contention that the instant appeal was premature.

Appellant initially contends that this appeal is properly before us as the order of November 3, 1993, is immediately appealable pursuant to Pa.R.App.P. 313. Rule 313 provides:

a) General Rule — An appeal may be taken as of right from a collateral order' of an administrative agency or lower court.
b) Definition — A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.

Pa.R.App.P. 313.

The Commonwealth contends that the instant appeal does not involve a collateral order and, therefore, must await the entry of a final order, and also argues that, even if an interlocutory appeal was permissible pursuant to Pa.R.App.P. 313, the instant appeal, taken from an order entered even before a preliminary hearing has been held, must be quashed as premature. While we agree that appellant must be permitted to challenge, prior to trial, the authority of the Attorney General to proceed in this matter, we are not persuaded that appellant may do so prior to the completion of the preliminary hearing.

Appellant has challenged the authority of the Attorney General to investigate and prosecute the offenses set forth in the criminal complaint, citing Section 205(a)(1) — (8) of the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, No. 164 § 101 et seq., 71 P.S. § 732-205(a)(l)-(8). Appellant concedes that 71 Pa.C.S. § 732-205(a)(2) authorizes the Attorney General to investigate and prosecute criminal charges involving corrupt organizations as provided for in 18 Pa.C.S. § 911, but argues that the charge of violating 18 Pa.C.S. § 911 is contrived and was included in the criminal complaint solely for the purpose of enabling the Attorney General to wrongfully assert jurisdiction over the instant case.

Both the Supreme and Superior Courts have previously reviewed pre-trial challenges to the authority of the Attorney General. The Pennsylvania Supreme Court, in Commonwealth v. Bobitski, 534 Pa. 310, 632 A.2d 1294 (1993), affirmed an order which had granted the pre-trial motion of the defendant to quash three counts of an indictment, arising out of a scheme whereby the defendant, an employee of Thrift Drug, solicited bribes in exchange for awarding construction contracts. The trial court dismissed one count of forgery and two counts of corrupt organizations, leaving for trial five counts of commercial bribery, and one count of tampering with records.

The Supreme Court, in Bobitski, in affirming the lower courts, framed the issue as “whether the Pennsylvania Corrupt Organizations Statute (18 Pa.C.S. § 911) can be applied to an individual who committed a series of criminal acts for his own benefit while employed by a legitimate enterprise, where the Commonwealth concedes that there are no identifiable ties between the individual, the enterprise, and ‘organized crime’.” Id. at 312, 632 A.2d at 1295. The Court in Bobitski expressly rejected the federal courts’ interpretation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq., which does not require “the prosecution to establish a nexus between the individual and/or the enterprise being charged and ‘organized crime’ ”, Id. at 325 n. 2, 632 A.2d at 1296 n. 2. Rather, our Supreme Court specifically there held that the Corrupt Organizations Statute is applicable only to “organized crime ‘as it is commonly understood’ ”. Id. at 314, 632 A.2d at 1296.

Appellant, arguing that the complaint makes no reference to “organized crime” and contending that he has no connection to “organized crime”, contends that he must be permitted to challenge the decision of the Attorney General to charge him with a violation of the Corrupt Organizations Statute, and is entitled to an immediate hearing to develop the factual basis of the jurisdiction of the Attorney General to investigate and prosecute this action., See: Commonwealth v. Goodman, supra.

The decision of appellant to challenge the authority of the Attorney General almost immediately after the filing of the criminal complaint has resulted in a record which contains, in essence, only the complaint and the affidavit of probable cause. The complaint charges appellant with the theft of $174,160.43 as a result of “intentionally creating and reinforcing the false impression that the amount submitted for reimbursement was the actual direct cost for furnishing the materials for emergency Scranton Sewer Authority projects when in fact the amounts submitted were in excess of those costs incurred by the defendant, the President of North End Plumbing, Inc.” and “by intentionally creating and reinforcing a false impression that [appellant], doing business as North End Plumbing Company, had paid prevailing wage rates to employees of North End Plumbing Company on emergency projects for the Scranton Sewer Authority, and requested and received reimbursement for excess amounts as set forth below.” Count 49 of the complaint, which charges appellant with a violation of the Corrupt Organizations statute, provides:

Between January 1, 1991, and December 31, 1991, the Defendant was employed by or associated with an enterprise, to wit, a group of individuals associated in fact although not a legal entity, engaged in commerce and trading as “North End Plumbing Company” or “North End Plumbing Incorporated”, a corporation engaged in commerce, of which the Defendant was President, and the Defendant conducted or participated, directly or indirectly, in the conduct of the enterprise’s affairs through a pattern of racketeering activity as set forth in detail in counts 1-48 above, each of which is within the definition of ‘racketeering activity’ as set forth in 18 Pa.C.S. § 911(h)(1).

Appellant correctly argues that the Superior Court in Commonwealth v. Goodman, supra, sanctioned the pre-trial review by a trial court of the use of the Corrupt Organizations Statute by the Attorney General so as to prevent the wrongful assertion of jurisdiction by the Attorney General. While we agree that the appellate courts have sanctioned the review of the prosecutorial authority of the Attorney General prior to trial, we believe that such review may not properly be invoked until the conclusion of a preliminary hearing.

Our Supreme Court in Commonwealth v. Carsia, 512 Pa. 509, 517 A.2d 956 (1986), affirmed a pre-trial order quashing the information filed against Carsia by the Attorney General, based upon the limitations imposed upon the Office of the Attorney General by the Attorney’s Act. The defendant in Carsia had been held over for trial following a preliminary hearing and, after the filing of the information against him, filed a motion to quash based upon the lack of authority for the Attorney General to prosecute the case. The trial court granted the motion and the Commonwealth appealed. The Supreme Court subsequently affirmed the trial court, holding that “the Attorney General can only investigate and prosecute criminal actions set forth under section 205 of the Act”. Commonwealth v. Carsia, supra at 511, 517 A.2d at 957.

Similarly, the Supreme Court in Commonwealth v. Bobitski, supra, entertained an appeal originally taken by the Commonwealth from a pre-trial motion to quash various counts of an indictment, in particular, charges of corrupt organizations, and affirmed the decision of the trial court to quash those counts of the indictment upon which the Attorney General had relied for authorization to prosecute the action.

The Superior Court in Commonwealth v. Goodman, supra, also affirmed an order which had granted the pre-trial motion of the defendant based upon the absence of any statutory authorization for the Attorney General to investigate or prosecute the case. In Goodman, as in the instant case, “the only justification for the Attorney’s General’s investigation rests on the grant of authority under Section 205(a)(2) which in turn relies on his authority under 18 Pa.C.S. § 911.” This Court, affirming the trial court, reiterated that the primary purpose of the Corrupt Organizations statute is “to prevent the infiltration of legitimate business enterprises by organized crime.” Commonwealth v. Goodman, supra at 420, 500 A.2d at 1126 quoting Commonwealth v. Brady, 470 Pa. 420, 433, 368 A.2d 699, 706 (1977) (footnote omitted). In each of the cases in which this Court or the Supreme Court has reviewed a challenge to the' authority of the Attorney General to investigate or prosecute a case, however, review has been conducted following the conclusion of the preliminary hearing.

Pennsylvania Rule of Criminal Procedure 306 provides that “[ujnless otherwise required in the interests of justice, all pretrial requests for relief shall be included in one omnibus pretrial motion.” Rule 307 provides that the motion is to be filed and served within 30 days after arraignment. The Comment to Rule 306 notes that the types of relief to be requested in the omnibus pre-trial motion include suppression of evidence and requests to quash an indictment or information.

While appellant persuasively argues that the “interests of justice” require that an evidentiary hearing be conducted prior to the preliminary hearing, we believe that the rights of appellant will be adequately protected through the orderly presentation of the issues sought to be raised in this appeal in the omnibus pre-trial motion where the record from the preliminary hearing will be available for the scrutiny of the trial court and, if necessary, the Superior Court.

We, therefore, quash this appeal without prejudice to the right of appellant to file a pre-trial appeal from any adverse determination made by the trial court following proceedings in conformity with Pennsylvania Rule of Criminal Procedure 306.

Appeal quashed. Jurisdiction relinquished.

      . 18 Pa.C.S. § 3922.

      . 18 Pa.C.S. § 4904.

      . 18 Pa.C.S. § 911.

      . Commonwealth v. Goodman, 347 Pa.Super. 403, 500 A.2d 1117 (1985).

      . Commonwealth v. Cosgrove, 436 Pa.Super. 550, 648 A.2d 546 (1994). This petition is pending. See, e.g., Thermo-Guard Inc. v. Cochran, 408 Pa.Super. 54, 59-65, 596 A.2d 188, 191-193 (1991).

      . § 732-205. Criminal prosecutions
      (а) Prosecutions. — The Attorney General shall have the power to prosecute in any county criminal court the following cases:
      (1) Criminal charges against State officials or employees affecting the performance of their public duties or the maintenance of the public trust and criminal charges against persons attempting to influence such State officials or employees or benefit from such influence or attempt to influence.
      (2) Criminal charges involving corrupt organizations as provided for in 18 Pa.C.S. § 911 (relating to corrupt organizations).
      (3) Upon the request of a district attorney who lacks the resources to conduct an adequate investigation or the prosecution of the criminal case or matter or who represents that there is the potential for an actual or apparent conflict of interest on the part of the district attorney or his office.
      (4) The Attorney General may petition the court having jurisdiction over any criminal proceeding to permit the Attorney General to supersede the district attorney in order to prosecute a criminal action or to institute criminal proceedings. Upon the filing of the petition, the president judge shall request the Supreme Court to assign a judge to hear the matter. The judge assigned shall hear the matter within 30 days after appointment and make a determination as to whether to allow supersession within 60 days after the hearing. The district attorney shall be given notice of the hearing and may appear and oppose the granting of the petition. Supersession shall be ordered if the Attorney General established by a preponderance of the evidence that the district attorney has failed or refused to prosecute and such failure or refusal constitutes abuse of discretion.
      (5) When the president judge in the district having jurisdiction of any criminal proceeding has reason to believe that the case is a proper one for the intervention of the Commonwealth, he shall request the Attorney General to represent the Commonwealth in the proceeding and to investigate charges and prosecute the defendant. If the Attorney General agrees that the case is a proper one for intervention, he shall file a petition with the court and proceed as provided in paragraph (4). If the Attorney General determines that the case is not a proper case for intervention, he shall notify the president judge accordingly.
      (б) Criminal charges investigated by and referred to him by a Commonwealth agency arising out of enforcement provisions of the statute charging the agency with a duty to enforce its provision.
      (7) Indictments returned by an investigating grand jury obtained by the Attorney General.
      (8) Criminal charges arising out of activities of the State Medicaid Fraud Control Unit as authorized by Article XIV (relating to fraud and abuse control), act of June 13, 1967 (P.L. 31, No. 21), known as the "Public Welfare Code,” and the Federal law known as the "Medicare-Medicaid Antifraud and Abuse Amendments.”
      71 P.S. § 732-205(a) (footnotes omitted).

      . Appellant explicitly urges that the Attorney General has proceeded in ultra vires fashion, and implicitly suggests that the Attorney General was motivated to do so for ulterior purposes. While it is but misjudgment for a government official to proceed in good faith to an ultra vires exercise of authority, for an official to do so with an ulterior motive is sheer oppression. Such abuse of authority is acknowledged to be a most invidious form of governmental oppression for, as we have seen in the present time, allegations of such misfeasance assisted to effect the extinction of the Pennsylvania Crime Commission. In any event, while there is arguable merit to the claim that the Attorney General has proceeded in ultra vires fashion, there is no evidence in this record of such ulterior personal motive. Moreover, even when the nature and extent of an ultra vires action lends a hue of validity to a claim of ulterior motive, such claims are more typically resolved in the political arena than the judicial forum.

      . The oldest Supreme Court in the land, happily, follows the straight line course of plain meaning and common sense when it holds that racketeers are the target of the Racketeering Act. On the other hand, a portion of the federal judiciary engages in such verbal contortions and intellectual acrobatics as to resemble a Wallenda Family reunion, for only "free fall” holdings enable a federal prosecutor to add a Racketeering Act charge to an indictment of a member of Congress for campaign contribution violations, and permit the Racketeering Act to be the basis for assessment of massive counsel fees against pro-life activists. See: H.J. Inc. v. Northwestern Bell Telephone Company, 492 U.S. 229, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989) (Scalia, J., dissenting). Such an approach inspired the legendary jurisprudential philosopher Justice Michael A. Musmanno to aptly observe:
      It is a matter of philosophical wonderment to me how persons of education will, in order to achieve a certain predetermined effect, attempt to stretch, twist, distend, shrink and manipulate the significance of the simplest language into a meaning bearing no resemblance to the intent of the original words.

        Sullivan v. Carmany, 384 Pa. 486, 489, 121 A.2d 174, 176 (1956). Similarly telling is the echo provided by our eminent colleague Judge John G. Brosky:
      On this note, we caution both the Borough and the Commonwealth that:
      [a]n avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates his duty, he establishes a precedent that will reach to himself.
      T. Paine, Dissertation on First Principles of Government, in Common Sense and Other Political Writings, Thomas Paine 174 (W.F. Adkins ed. 1953) (1776).

        Commonwealth v. Moll, 375 Pa.Super. 147, 154, 543 A.2d 1221, 1225 (1988), allo. denied, 522 Pa. 611, 563 A.2d 497 (1989).

        A fundamental principle of a government of laws is that a citizen may only be subjected to punishment for violation of expressly proscribed conduct, which is to say that a citizen may not be subjected to punishment for conduct which a prosecutor or editor, or even a neighborhood, or even a majority of the citizenry, perceives as offensive or wanting in style or taste or demeanor — nullum crimen sine lege. Many assert that the "free-fall” interpretations of the RICO Act by the federal judiciary violate this primary and essential principle, thereby abandoning such sacred constitutional preclusions as the void-for-vagueness doctrine, and the bans upon ex post facto laws and upon the arbitrary and discriminatory abuse of the police power. The common law, so revered in the early days of the republic, has been replaced throughout the land by criminal codes, since the fashion in which judges relied upon personal views and public whim to fill perceived gaps in the common law inspired an aversion to judge-made law. Moreover, a particular feature of the two horrible totalitarian regimes of this century was the use of the police power to so manipulate the prosecution and judiciary that judge-made law became but further decrees of the dictator. Simply put, there are valid and abundant reservations about "the democratic basis” of judge-made. law. See: WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR„ CRIMINAL LAW, § 2.1 (2d ed. 1986) (a succinct and insightful discussion of this issue). And, of course, since "free fall” interpretation is but a form of judge-made law, the “free fall” interpretation of the RICO Act should trigger serious concern.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    648 A.2d 551
    CONTINENTAL BANK v. ANDREW BUILDING COMPANY, Chester County Industrial Development Authority Appeal of ANDREW BUILDING COMPANY.
    Superior Court of Pennsylvania.
    Argued May 25, 1994.
    Filed Sept. 21, 1994.

      W. Mark Mullineaux, Wayne, for appellant.
    Mark S. Kenney, Philadelphia, for Continental Bank, appellee.
    Before CAVANAUGH, CIRILLO and BROSKY, JJ.
   CIRILLO, Judge:

Appellant Andrew Building Company (“Andrew”) appeals from an order of the Court of Common Pleas of Chester County granting Appellee Continental Bank’s (“Continental”) preliminary objections to Andrew’s new matter and counterclaim to Continental’s complaint in mortgage foreclosure. For the reasons stated below, we quash this appeal.

In 1979, Continental entered into a loan agreement (the “1979 loan”) with the Chester County Industrial Development Authority (“CCIDA”), whereby Continental loaned CCIDA the sum of $8.4 million. This loan was secured by a note and a mortgage on approximately 123 acres of land (the “Premises”) in Chester County. At the same time that this loan agreement was made, CCIDA entered into an Installment Sales Agreement with Andrew, in which CCIDA agreed to sell Andrew the Premises and Andrew promised to make monthly payments to CCIDA of an amount equal to the monthly mortgage payments owed by CCIDA to Continental. Andrew and CCIDA agreed that Andrew would pay the requisite amount to Continental directly.

In addition, Unlimited Suretyship Agreements (“guaranties”) were executed in conjunction with each loan, whereby Andrew became an absolute and unconditional surety. While CCIDA and Andrew are “real owners” of the Premises, CCI-DA is the legal owner, and Andrew is the equitable owner and terre-tenant of the Premises.

In early 1991, Andrew allegedly requested that Continental approve a contract for the sale of a section of the undeveloped portion of the Premises to a developer for $4.8 million (the “Fanning Agreement”). However, Continental never replied. Later, when Andrew anticipated financial difficulty and further requested that Continental establish a “release price” for the commercial portion of the Premises, Continental advised Andrew that it would obtain two appraisals. However, these appraisals were not submitted in time for Andrew to hold its auction on October 15, 1991; Andrew alleges, therefore, that it was forced to cease payments under the Installment Sales Agreement.

As a result of Andrew’s failure to make payments, CCIDA defaulted on the loans and the mortgages. Continental made a demand on CCIDA and Andrew for the full balance due under the loans but no payments were made. Thereafter, Continental instituted two confession of judgment actions in the Court of Common Pleas of Chester County; one against CCIDA on both of its promissory notes, and another against Andrew on both of its guaranties. Andrew petitioned to strike or open the judgments and obtained a stay thereon. Continental then initiated a separate mortgage foreclosure action which is the subject of this appeal.

In response to the complaint in mortgage foreclosure, Andrew filed preliminary objections in which it asserted that Continental was barred from bringing its mortgage foreclosure action because the mortgage, note, and guaranties were merged into the confessed judgments and, therefore, stayed. Judge Sugerman overruled Andrew’s preliminary objections, finding that the mortgage foreclosure action was in rem, whereas the confessed judgments were in personam, and, thus, by law, they could not merge and the stay on the confessed judgments did not bar the mortgage foreclosure action.

Thereafter, in its answer to Continental’s complaint, Andrew included new matter and a counterclaim. Andrew alleged therein that Continental’s claim against Andrew should be eliminated by way of set-off and/or recoupment to reflect damages owed by Continental to Andrew for Continental’s: 1) refusal to establish a release price for the commercial portion of the Premises; 2) failure to authorize a sale price for the undeveloped portion of the Premises; 3) use of confidential information regarding Andrew’s financial situation for its own gain; and 4) negligent and fraudulent misrepresentation that it would provide a release price.

Continental filed preliminary objections to Andrew’s new matter and counterclaim. An order was entered on April 15, 1993 by Judge Sugerman sustaining Continental’s preliminary objections to Andrew’s new matter and counterclaim and striking Andrew’s new matter and counterclaim with prejudice. Andrew appealed to this court from that order.

As an appellate court, we may, sua sponte, determine whether an appeal is properly before this court. Edmonds v. Western Pa. Hosp. Radiology Assoc., 414 Pa.Super. 567, 571, 607 A.2d 1083, 1085 (1992) (citing Gatten v. Merzi, 397 Pa.Super. 148, 579 A.2d 974 (1990) (per curiam)). On May 6, 1992, the Pennsylvania Supreme Court amended Rules 311, 341, and 1311 and approved Rule 313 of the Pennsylvania Rules of Appellate Procedure. Although, initially, these amended and newly adopted rules were to govern all actions which commenced after July 6, 1992, on January 10, 1994, the Supreme Court of Pennsylvania entered another order establishing that the new and amended rules would also to apply to all orders entered on or after March 1, 1994, regardless of the underlying action’s commencement date.

The commencement date of the instant action is July 15, 1992, the date on which Continental filed its complaint in mortgage foreclosure. Pa.R.C.P. 1007. The order from which Andrew is appealing was entered on April 15, 1993. Notwithstanding the entry date of the order, the' July 15, 1992 commencement date clearly places this case within the purview of the new and amended rules of appellate procedure.

Under Pennsylvania law, an appeal may only be taken from an interlocutory order as of right (Pa.R.A.P. 311), from a final order (Pa.R.A.P. 341), from a collateral order (Pa.R.A.P. 313), or from an interlocutory order by permission (Pa.R.A.P. 313, 1311, 42 Pa.C.S.A. § 702(b)). The current case does not fall within the requirements of any of these categories and, therefore, this appeal must be quashed.

Rule 311 lists the following orders as interlocutory orders to which a right of appeal attaches: orders refusing to open, vacate or strike off a judgment; orders confirming or refusing to modify, confirm or dissolve an attachment, custodianship or receivership; orders changing venue or venire in a criminal proceeding; orders granting, continuing, modifying refusing or dissolving injunctions or orders refusing to dissolve or modify injunctions; orders awarding a new trial; orders directing partition; orders sustaining venue or personal or in rem jurisdiction; orders changing venue, transferring the case to another court, or declining to proceed on the basis of forum non conveniens; orders overruling preliminary objections in eminent domain cases; or orders of administrative remand. However, an order sustaining preliminary objections to new matter and counterclaim does not constitute a basis for an interlocutory appeal as of right within this rule.

We must next ascertain whether this order is appeal-able as a final order. As amended, Rule 341 provides in pertinent part:

(a) General Rule. Except as prescribed in subdivisions (d) and (e) of this rule, an appeal may be taken as of right from any final order of an administrative agency or lower court.
(b) Definition of Final Order. A final order is any order that:
(1) disposes of all claims or of all parties; or
(2) any order that is expressly defined as a final order by statute; or
(3) any order entered as a final order pursuant to subsection (c) of this rule.
(c) When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, or third-party claim or when multiple parties are involved, the trial court or other governmental unit may enter a final order as to one or more but fewer than all of the claims or parties only upon an express determination that an immediate appeal would facilitate resolution of the entire case. Such an order becomes appealable when entered. In the absence of such a determination and entry of a final order, any order or other form of decision that adjudicates fewer than all the claims or parties shall not constitute a final order.

Pa.R.A.P. 341 (emphasis added). Amended Rule 341 permits appeals only from orders which dismiss all claims or all parties. See Luiziaga v. Psolka, 432 Pa.Super. 26, 637 A.2d 645 (1994) (order denying intervention was not deemed appeal-able because action remained pending between initial parties); Robert H. McKinney, Jr., Assoc., Inc. v. Albright, 429 Pa.Super. 440, 632 A.2d 937 (1993) (order dismissing one of two defendants was not final and appealable because action remained pending against at least one defendant).

Barring some exception, an appeal as a final order will not lie from an order sustaining preliminary objections to new matter and a counterclaim because all claims have not been dismissed and, therefore, such an order is not a final determination of the initial claim — the complaint which initiated the action remains pending. Luiziaga, 432 Pa.Super. at 27, 637 A.2d at 646; Albright, 429 Pa.Super. at 441, 632 A.2d at 938. But see Edmonds v. Western Pa. Hosp. Radiology Assoc., 414 Pa.Super. 567, 607 A.2d 1083 (1992) (applying former Rule 341 and holding that an order sustaining preliminary objections to complaint was final and appealable even though the order did not dismiss the complaint because the order effectively terminated the proceedings); Commonwealth v. Orsatti, Inc., 448 Pa. 72, 292 A.2d 313 (1972) (applying former Rule 341 and holding that an order sustaining preliminary objections and dismissing a counterclaim is appealable since the defendant was put out of court with respect to the counterclaim, even though the initial action was unresolved and still pending).

The Note following amended Rule 341 provides a partial list of orders which were previously appealable under the old Rule 341, but which are no longer appealable. Among those listed is: “an order dismissing a counterclaim but leaving pending the complaint which initiated the action.” Pa. R.A.P. 341, Note. The present order presents precisely such a situation; the order of the trial court dismissed Andrew’s new matter and counterclaim, but the mortgage foreclosure action, the initial action, remained pending. Accordingly, this order is not appealable as a final order. Pa.R.A.P. 341.

Alternatively, a court may provide an express determination that an order is final pursuant to Pa.R.A.P. 341(c) and thereby allow an immediate appeal of an otherwise unappealable interlocutory order. Albright, 429 Pa.Super. at 441, 632 A.2d at 938 (1993). The trial court did not make an express determination that the order in the case at bar is a Rule 341(c) final order. Pa.R.A.P. 341(c).

Another way in which orders may be appealed is if they constitute a collateral order pursuant to Rule 313. Amended Rule 313 is a codification of existing case law concerning appealable collateral orders, which are defined as: “order[s] separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost.” Pa.R.A.P. 313(b); Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978) (citing Cohen v. Beneficial Ind. Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)). See also Perry N. Blackman v. Alexander Katz, 390 Pa.Super. 257, 568 A.2d 642 (1990); Gatten v. Merzi, 397 Pa.Super. 148, 579 A.2d 974 (1990); Danko Development Corp. v. Econocast Corp., 369 Pa.Super. 120, 534 A.2d 1108 (1987); National Recovery Systems v. Perlman, 367 Pa.Super. 546, 533 A.2d 152 (1987). The instant order does not fall under the purview of this rule because Andrew’s new matter and counterclaim form a separate cause of action which is not so integrated into the claim at issue, i.e., the mortgage foreclosure, that denial of an appeal from the trial court’s order would result in the claimed right being irreparably lost. Pugar, supra.

Alternatively, permission to appeal from an interlocutory order may be granted pursuant to 42 Pa.C.S.A. § 702. Section 702(b) requires the order to contain the trial court’s certification “that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter....” 42 Pa.C.S.A. § 702(b); Pa.R.A.P. 312, 1311. In addition to the language prescribed by Section 702(b) of the Judicial Code, Pa.R.A.P. 1311(b) requires the appellant to file a petition for permission to appeal with the appellate court within thirty (30) days after entry of such order in the trial court. In the case at bar, the trial court’s order does not contain the requisite language pursuant to Section 702(b), nor did Andrew file a petition for permission to appeal; consequently, the order is not appealable under this provision.

The trial court’s order merely sustains Continental’s objections to Andrew’s new matter and counterclaim and prevents Andrew from raising its assertions at this juncture of the litigation. The order does not terminate the initial mortgage foreclosure action nor does it state that it is a final order and immediately appealable pursuant to Rule 341. Additionally, this order is not an interlocutory order appealable as of right. Andrew may make its allegations and contentions asserted in its new matter and counterclaim upon final adjudication of all claims in this action. Hence, this appeal is premature and must be quashed.

Appeal quashed.

      . A second loan was made in 1982 (the "1982 loan") by Continental to CCIDA for $1.4 million and was also secured by a mortgage on the Premises. Again, Andrew contracted with CCIDA to purchase the Premises pursuant to another Installment Sales Agreement, whereby Andrew’s monthly payments were equal to CCIDA's obligation under the 1982 loan, and Andrew paid this amount to Continental directly. However, this loan is not at issue in the instant case.

      . A "terre-tenant" is the actual occupier of the land, as distinguished from the owner out of possession of the land. In Pennsylvania, it also denotes one who purchases land subject to an existing lien of mortgage or judgment against the former owner.

      . The Premises were previously owned by Andrew and then deeded to CCIDA for the purpose of obtaining a loan, and then Andrew was to repurchase the Premises from CCIDA.

      . Andrew’s appeal asserts that its new matter was a valid defense against a mortgage foreclosure claim and that its counterclaim was proper under Pa.R.C.P. 1148 because it arose from the same transaction or occurrence as the mortgage action. Because we find this appeal to be premature, however, we need not address the merits of the appeal.


author: CAVANAUGH, Judge.

text:
    648 A.2d 555
    COMMONWEALTH of Pennsylvania v. Ismael FIGUEROA, Appellant.
    Superior Court of Pennsylvania.
    Argued June 23, 1994.
    Filed Sept. 27, 1994.
    Petition for Allowance of Appeal Denied Jan. 6, 1995.

      Kathleen A. Kerrigan, Newton, for appellant.
    Stephen B. Harris, Asst. Dist. Atty., Warrington, for Com., appellee.

      Before ROWLEY, P.J., and CAVANAUGH and TAMILIA, JJ.
   CAVANAUGH, Judge.

Ismael Figueroa appeals from the judgment of sentence of twenty-three months probation with conditions of psychiatric care and a prohibition against operating a motor vehicle.

Appellant was convicted at a non-jury trial of criminal attempt to lure a child into a motor vehicle. The crime of luring a child into a motor vehicle was enacted as part of the kidnapping chapter of the Crime Code in 1990 as follows:

18 Pa.C.S.A. § 2910

Luring a child into a motor vehicle

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

1990, Feb. 2, P.L. 6, No. 4, § 3, effective in 60 days.

At trial, there was little dispute as to the facts. Katie (age eleven) and Caroline (age 7) Gutekunst live with their parents and brother at 30 Brook Drive, Furlong, PA. On March 18, 1993, they left home to get the bus for school which was starting two hours late because of the aftermath of a severe snowstorm which had affected the area. The bus stop was about 2 blocks away from their home, and, together with a neighbor boy, they proceeded single file and somewhat separated along Brook Drive with Caroline bringing up the rear. She testified that a man in a white car came up to her and asked her name and asked if she wanted a ride to the bus stop. When Caroline refused, the man moved the car forward to Katie who stated that the car had pulled out of a neighbor’s driveway; that the driver stopped and talked to Caroline and then came forward and asked Katie her name and whether she would like a ride to school. She identified appellant in the courtroom as the man who approached her and her sister. After the dual refusals, the car went forward and eventually changed its direction in another driveway and left the area. It is significant to note that the episode was sufficiently disquieting to Caroline that she retained certain characters from appellant’s license plate which she related to her father the next night and which led to appellant’s arrest.

Figueroa’s testimony was that he was in the neighborhood on business and that he offered to give the first child a ride when he saw the child fall in the snow. He also stated that he offered a ride to the other children.

On appeal, appellant attacks the sufficiency of the evidence to support the verdict, and makes constitutional challenges to the statute and to the sentence of the court. We review the insufficiency claim by considering the evidence in a light most favorable to the Commonwealth and accept as true all evidence and reasonable inferences flowing therefrom which, if believed, could support the verdict. Commonwealth v. Rivera, 432 Pa.Super. 88, 637 A.2d 997 (1994).

The trial court read the statute as a strict liability offense which may be breached by violation of its provisions regardless of motive. Appellant’s challenge does not go to the attempt aspect of his conviction, but argues that implicit in the statute is a requirement that there be an intent to harm, and would read Commonwealth v. Adamo, 431 Pa.Super. 529, 637 A.2d 302 (1994) to support this contention. We do not read Adamo, however, to require a showing of an intent to harm. It is true that in that case the offer of the defendant to the child can be seen as an invitation to sexual misconduct, but the court clearly based its affirmance on a strict reading of the language of the statute:

The evidence in this case consisted mainly of the testimony of the intended victim. The intended victim testified that he was approached by Adamo and offered one thousand dollars for one-half hour of work. The intended victim also testified that Adamo would not tell him the kind of work involved unless he accompanied Adamo to Adamo’s car. Thus, the intent of Adamo to lure his planned victim into his car is apparent. By approaching the intended victim and offering one thousand dollars for one-half hour of work, Adamo took a substantial step toward the crime of luring a child into a motor vehicle.

Commonwealth v. Adamo, 431 Pa.Super. at 534-35, 637 A.2d at 305.

Testing appellant’s conduct by the prohibition of the statute, we agree that the evidence is sufficient to support the conviction. The only problematic concept presented by the prohibitory language is that it extends to a person who “lures” a child into a vehicle. Both the trial court here and the Superior Court in Adamo noted the broad definition of this word in our language. See 1 Pa.C.S.A. § 1903; Commonwealth v. Stanley, 498 Pa. 326, 328, 446 A.2d 583 (1982). So understood as an “inducement to gain” it is easy to see that the offer, as viewed by the offeror (whose conduct is under scrutiny), of a ride to school on a day when snow and ice made passage by foot difficult, could be welcomed as a favorable enticement by the pedestrian children. We have held that criminal intent or guilty knowledge is an essential element of a criminal offense, though the legislature may define a crime so that proof of criminal intent or guilty knowledge is unnecessary. In such case, the culpability or mens rea is established by proof that the person acted intentionally, knowingly or recklessly. Commonwealth v. Hogan, 321 Pa.Super. 309, 468 A.2d 493 (1983); Commonwealth v. Cheatham, 419 Pa.Super. 603, 615 A.2d 802 (1992); 18 Pa.C.S.A. § 302 General Requirement of Culpability-

The gravamen of the present crime is luring a child into a motor vehicle. We have stated above that inviting the children into his car with a promise of a ride to school or the bus stop, which appellant here agrees that he did, is sufficient to meet the prohibitions of the statute. This knowing conduct we believe meets the requirement of culpability. 18 Pa.C.S.A. § 302(b)(2). That there may have been no intent to harm is not relevant since this is not a requirement of the act. Children in our society are taught by their parents and teachers that they should never accept a ride from strangers. It is likely that the Gutekunst children in the present instance were acting in response to this training including the act of the seven year old in remembering part of the license number of appellant. It is a perfectly reasonable and efficacious enactment for the legislature to declare that an adult should not, under penalty of law, invite a child (without the parents consent which may be implied) into his car. Viewing this crime as a threshold prophylactic rule for the terrible crime of kidnapping, we conclude that it is a legitimate exercise of the legislature’s discretion, to prohibit persons from offering rides to children under any invitational pretext.

We conclude that the instant crime does not require a showing of intent to harm and that appellant was in knowing violation of the prohibited conduct.

In a similar vein, appellant argues that the statute is constitutionally invalid due to its vagueness and (separately) due to its overbreadth.

Constitutional issues are reviewed subject to certain rubrics. All doubt is to be resolved in favor of constitutionality. Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975); Where a reasonable interpretation would save constitutionality that interpretation should be adopted. Kadash v. City of Williamsport, 19 Pa.Comwlth. 643, 340 A.2d 617 (1975); Commonwealth v. Monumental Properties, 459 Pa. 450, 329 A.2d 812 (1974).

Both the vagueness and overbreadth arguments were asserted and rejected in Adamo, supra. For the reasons stated therein and the reasons stated above, we reject these contentions. See also, Commonwealth v. Roth, 366 Pa.Super. 575, 531 A.2d 1133 (1987).

Appellant’s final issue relates to his sentence and argues that it is unreasonable for the court to prohibit him from operating a motor vehicle during the time of his probation which is twenty-three months. We find that appellant has failed to present a substantial question for our review. Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

The court, in its order of probation, imposed the probation against driving a motor vehicle pursuant to its authority to impose reasonable conditions on a sentence of probation. 42 Pa.C.S.A. § 9754(b) and (c).

The court acted reasonably knowing that appellant was under psychiatric care and may not have been taking his medication.

The court prudently opined:

I will require that you undergo evaluation by an appropriate psychiatric team within two weeks of today’s date, that I be supplied with a copy of their report, and that you comply with any and all treatment recommendations they may make.

I will require that you comply. Because this incident involves the use of an automobile, a condition of that probation is that you shall not drive. You shall not drive. You are not working, the car is the event which causes the most concern.

Let me tell you that one of my concerns is, sir, my concern is that at sometime in the future you again cannot control yourself, either by failure to take medication or so forth, that you again attempt to get someone in your car, and I can make sure you do not if you don’t drive a car. That is better than confinement, sir.

It was also noted that the instant crime occurred a few days after appellant’s discharge from the hospital and that he is subject to manic episodes and may undergo changes in behavior and become hypersexual.

Judgment of sentence affirmed.


author: FORD ELLIOTT, Judge:

text:
    648 A.2d 559
    In re ESTATE OF Mark T. STEVENSON, Deceased. Appeal of Elizabeth STEVENSON, Respondent.
    Superior Court of Pennsylvania.
    Argued Feb. 16, 1994.
    Filed Sept. 30, 1994.
    Gerald T. Ormand, Glassport, for appellant.
    Ralph D. Conrad, Greensburg, for appellee.
    Before CAVANAUGH, HUDOCK, and FORD ELLIOTT, JJ.
   FORD ELLIOTT, Judge:

Appellant comes before us challenging the Decree of the Orphans’ Court Division of the Court of Common Pleas of Westmoreland County. The Decree, dated September 3,1993, and entered September 7, 1993, dismissed appellant’s exceptions to an earlier Opinion and Decree Nisi. The earlier Opinion and Decree Nisi was dated July 1, 1993, and was entered July 2, 1993. The Decree of September 1993 fully incorporated by reference the Decree Nisi of July 1993. The Decree Nisi of July 1993 held that the corpus of a tentative trust of which appellant was the beneficiary was liable to pay those estate expenses that exceeded the estate assets. We affirm.

The factual background is neither complex nor contested. Mark T. Stevenson died intestate August 11, 1991, survived by his wife and administratrix, Karen M. Stevenson, and by his mother, Elizabeth Stevenson, appellant herein. During his lifetime the decedent created several trust bank accounts naming appellant as beneficiary. The sum of these accounts totalled approximately $70,000. Upon the decedent’s death, appellant closed these trust accounts, taking the funds. Appellant filed Pennsylvania Inheritance Tax returns and paid the sums owed.

On October 1, 1992, the administratrix petitioned the court, pursuant to which the court ordered appellant to show cause why the trust accounts should not be made available for the payment of estate expenses. The court eventually issued the decrees now before us ordering that the trust accounts be made available.

Appellant raises a single issue for our review:

Are the proceeds of a settlor decedent’s ‘in trust for’ accounts liable for the payment of the decedent’s estate’s administrative expenses to the extent that they exceed estate assets?

Preliminarily, we must dispose of an issue raised by appellee that the orders appealed from are not final and appealable. Appellee’s theory here is that the lower court’s orders were not sufficiently explicit in stating which estate expenses, and in what amounts, could be charged against the trust accounts. Thus, appellee argues, if we uphold the decrees, the case may again be appealed on the issues of whether certain expenses and amounts were properly charged against the trust accounts. We disagree.

Contrary to appellee’s assertion, the record below indicates to us which expenses may be charged against the trust accounts. Appellee’s Petition for Citation, at paragraph 6, specifically referenced the estate expenses involved here as being those listed on Schedule H of the Pennsylvania Inheritance Tax Return as filed. We note that Schedule H lists aggregate expenses of $17,357.30. These, then, are the expenses that the court allowed to be charged against the trust accounts. The decrees clearly indicate also that these expenses are to be charged to their full amount, to the extent that $17,357.30 exceeds the other assets of the estate. We see no uncertainty as to what expenses or in what amounts may be charged against the trust accounts. We now proceed with our analysis of the main issue presented.

Initially, we note our standard of review:

Our standard of review from a final order of the Orphans’ Court Division requires that we accord the findings of an Orphans’ Court, sitting without a jury, the same weight and effect as the verdict of a jury; we will not disturb those findings absent manifest error; as an appellate court we can modify an Orphans’ Court decree only if the findings upon which the decree rests are not supported by competent or adequate evidence or if there has been an error of law, an abuse of discretion, or a capricious disbelief of competent evidence. Estate of Keefauver, 359 Pa.Super. 336, 518 A.2d 1263 (1986); Estate of Kovalchick, 345 Pa.Super. 229, 498 A.2d 374 (1985); Estate of Gilbert, 343 [342] Pa.Super. 82, 492 A.2d 401 (1985).

In Re Benson, 419 Pa.Super. 582, 584, 615 A.2d 792, 793 (1992). Presently, appellant is not challenging findings of facts, but rather only conclusions of law. In particular, appellant objects to the trial court’s application of § 58 Restatement of Trusts, Second, comment (d) to the instant case. Appellant also argues that the statutory scheme enacted by the legislature to regulate trust accounts, 20 Pa.C.S.A. § 6301 et seq., applies certain aspects of § 58 of the Restatement, but not the matter covered by comment (d), implying that the legislature has rejected comment (d) in so doing.

Since the Restatement of Trusts is so much at issue here, we should iterate the pertinent section, especially as it provides us with a definition of a tentative trust:

[§] 58. TENTATIVE TRUST OF SAVINGS DEPOSIT

Where a person makes a deposit in a savings account in a bank or other savings organization in his own name as trustee for another person intending to reserve a power to withdraw the whole or any part of the deposit at any time during his lifetime and to use as his own whatever he may withdraw, or otherwise to revoke the trust, the intended trust is enforceable by the beneficiary upon the death of the depositor as to any part remaining on deposit on his death if he has not revoked the trust.

d. Creditors of depositor. Although creditors of the settlor cannot reach the trust property merely because he has reserved a power of revocation (see § 330, Comment o), creditors of a person who makes a savings deposit upon a tentative trust can reach his interest, since he has such extensive powers over the deposit as to justify treating him as in substance the unrestricted owner of the deposit. So also, on the death of the depositor if the deposit is needed for the payment of his debts, his creditors can reach it. So also, if it is needed it can be applied to the payment of his funeral expenses and the expenses of the administration of his estate, if he has not sufficient other property which can be applied for these purposes.

Restatement of the Law, Second, Trusts, § 58 and comment (d) (emphasis added).

Initially, we disagree with appellant’s statement at page 11 of her brief that no appellate court in this Commonwealth has ever adopted § 58 of the Restatement of Trusts, Second, as the law of this Commonwealth. Our appellate courts have recognized § 58 as controlling in the Commonwealth on numerous occasions. Our cases generally trace the adoption of the principle enunciated in § 58 to Scanlon’s Estate, 313 Pa. 424, 169 A. 106 (1933). Scanlon’s Estate does not specifically mention § 58, but rather embraces the concept of the tentative trust as espoused by the seminal case, In re Totten, 179 N.Y. 112, 71 N.E. 748 (1904). The earliest recitation to § 58 as authority which we have found occurred in Banca D'Italia & Trust Company v. Giordano, 154 Pa.Super. 452, 36 A.2d 242 (1944). We have observed numerous instances since then where our appellate courts have employed § 58 as authority; see In Re Estate of McFetridge, 472 Pa. 546, 372 A.2d 823 (1977); In Re Pavlinko’s Estate, 399 Pa. 536, 160 A.2d 554 (1960); In Re Rodgers’ Estate, 374 Pa. 246, 97 A.2d 789 (1953); In Re Estate of Agostini, 311 Pa.Super. 233, 457 A.2d 861 (1983); Estate of Vittorio, 290 Pa.Super. 329, 434 A.2d 777 (1981); Krewson Estate, 154 Pa.Super. 509, 36 A.2d 250 (1944). Although not binding upon us, we also observe that courts in other states, in addition to common pleas courts in our own state, have employed § 58 to reach the result whereby tentative trust accounts may be used to satisfy estate expenses that exceed estate assets. See In Re Aybar’s Estate, 203 Misc. 372, 116 N.Y.S.2d 720 (1952); Rodgers Estate, 79 Mont.Co.L.R. 240 (1961); and Currier Estate, 73 Mont.Co. L.R. 250 (1957).

We will allow that we are unable to find any instance in which comment (d) was specifically adopted. However, we note that there is case law precedent that employs the concept of reaching the assets of tentative trust accounts to meet unpaid estate expenses. See In Re Rodgers’ Estate, 374 Pa. 246, 97 A.2d 789 (1953). Although this case preceded the Multiple-Party Accounts legislation which appellant asserts has now prohibited the reaching of such assets, we mention it to belie appellant’s assertion that no Pennsylvania appellate court has ever adopted § 58 of the Restatement of Trusts, Second. Furthermore, we also note that there is at least significant obiter dicta subsequent to the Multiple-Party Accounts legislation that suggests that the concepts employed in In Re Rodgers’ Estate, 374 Pa. 246, 97 A.2d 789 (1953), still hold sway. In Estate of Vittorio, supra, the court wrote,

A tentative trust can be revoked by the depositor at any time prior to death by any clear manifestation of an intention to do so. No particular formalities are necessary to effect a revocation. Restatement of Trusts 2d, § 58, comment c. It may be revoked by a transfer of the deposit; by the terms of the depositor’s will; by the depositor’s unequivocal act or declaration of disaffirmance; or by facts and circumstances resulting in inadequacy of the estate assets to satisfy the testamentary gifts, funeral and administration expenses, taxes and other charges. Rodgers Estate, 374 Pa. 246, 249-50, 97 A.2d 789, 790-91 (1953).

Estate of Vittorio, 290 Pa.Super. at 331-33, 434 A.2d at 779 (emphasis added).

Appellant argues that because the statutory scheme adopted by the legislature to regulate trust accounts makes no provision for the use of such funds to defray estate expenses in the event the assets of the estate are insufficient, then such funds are not available. However, the mere fact that the legislature did not specifically codify comment (d) is not reason to presume that the opposite result was intended. We find nothing in the Multiple-Party Accounts legislation that would prohibit this court from adopting the conceptual framework of comment (d) to allow the reaching of tentative trust assets to satisfy estate expenses that exceed estate assets. This is a view that is shared by at least one other source. In analyzing the then recently enacted Multiple-Party Accounts legislation, the periodical, Fiduciary Review, stated:

The underlying assumption of this section[] is that anyone using a joint or trust account wants the survivor or survivors to have all balances at death. It permits the continued employment of such an account as an informal will. As recognized in subsection (c) it is possible to negate the rights of survivorship. Like a will, it does not defeat the rights of a creditor to collect if assets of the decedent-depositor’s estate are insufficient to pay his claim. Also it may be available for death taxes, administration expenses and statutory claims of a surviving spouse. The omission of Section 6-107 of the Uniform Probate Code[] in Chapter 63 should not be construed as an intention to reach contrary results.

Fiduciary Review, September 1976 at 2-3.

In framing her argument, appellant calls our attention to certain sections of the statutory law governing multiple-party accounts to refute the potential application of comment (d). However, the purpose of these statutes is not to prohibit the estate from reaching these assets to defray debts and costs, but rather to ensure that trust accounts are given full effect as testamentary devises without being subjected to the full rigors by which wills are validated. What the statutes do make clear is that a tentative trust account may substitute for a will in effecting the transfer of property upon the death of the depositor. Such a transfer is still subject to inheritance taxes. Similarly, the estate should be able to petition the court to reach these funds to defray expenses once other assets have been exhausted. Although such funds "will not pass through the estate, they can be made available to it. To hold otherwise would allow wholesale avoidance of the just debts of a decedent by depositor-testators who could maintain the bulk of their estates in the form of tentative trust accounts. This was not the purpose of the Multiple-Party Accounts legislation. Rather, this legislation was enacted to aid banks and other financial institutions in the determination of how, when, and to whom to pay out tentative trust accounts and to determine the property rights among the various parties to multiple-party accounts.

We believe that where the other assets of the estate are insufficient to meet the debts of the decedent’s estate as well as administrative costs, the amounts contained in tentative trusts may be reached for satisfaction of these claims as in accordance with comment (d) of the Restatement of Trusts, Second, § 58.

Before concluding, we note that while we are affirming the decree below, we are remanding because appellee’s brief admits that the attorney’s and personal representative’s fees were miscalculated. On remand the court should amend its decree to reflect the correct amounts as it ascertains them.

Accordingly, the decree below is hereby affirmed, and the case is remanded for amendment as herein described. Jurisdiction relinquished.

      . Our listing is not exhaustive but is intended only as a sampling.

      . We alert the reader to the fact that this opinion recites to two opinions captioned “Rodgers’ Estate." They arise from two wholly separate cases.

      . Rodgers Estate and Currier Estate are perhaps flawed examples. While Rodgers does, in fact, rule that tentative trust accounts may be used to satisfy administration expenses to the extent that the expenses exceed estate assets, it so rules on the basis of Currier as precedent. Currier, however, contains language that seems to indicate that its ruling may be based on a finding by the court that the depositor clearly expressed a desire that his account be used to satisfy burial expenses. See Currier, 73 Mont.Co.L.R. at 252.

      . We note to the extent that Estate of Vittorio, relying upon pre-1976 authority, sets forth that a tentative trust may be revoked by will, its reasoning is inconsistent with 20 Pa.C.S.A. § 6304(d), which was enacted in 1976.

      . 20 Pa.C.S.A. § 6304.

      . § 6-107. [Rights of Creditors],
      No multiple-party account will be effective against an estate of a deceased party to transfer to a survivor sums needed to pay debts, taxes, and expenses of administration, including statutory allowances to the surviving spouse, minor children and dependent children, if other assets of the estate are insufficient. A surviving party, P.O.D. payee, or beneficiary who receives payment from a multiple-party account after the death of a deceased party shall be liable to account to his personal representative for amounts the decedent owned beneficially immediately before his death to the extent necessary to discharge the claims and charges mentioned above remaining unpaid after application of the decedent’s estate. No proceeding to assert this liability shall be commenced unless the personal representative has received a written demand by a surviving spouse, a creditor or' one acting for a minor or dependent child of the decedent, and no proceeding shall be commenced later than two years following the death of the decedent. Sums recovered by the personal representative shall be administered as part of the decedent’s estate. This section shall not affect the right of a financial institution to make payment on multiple-party accounts according to the terms thereof, or make it liable to the estate of a deceased party unless before payment the institution has been served with process in a proceeding by the personal representative.

      . (b) Trust account. — At the death of the trustee or the survivor of two or more trustees, any sum remaining on deposit belongs to the person or persons named as beneficiaries, if surviving, or to the survivor or survivors of them if one or more die before the trustee or last surviving trustee, unless there is clear and convincing evidence of a contrary intent; if two or more beneficiaries survive, there is no right of survivorship in event of death of any beneficiary thereafter unless the terms of the account or deposit agreement expressly provide for survivorship between them.
      (d) Change by will prohibited. — A right of survivorship arising from the express terms of an account or under this section, or a beneficiary designation in a trust account cannot be changed by will.
      20 Pa.C.S.A. § 6304(b) and (d).
      § 6306. Accounts and transfers nontestamentary
      No transfer resulting from the application of section 6304 (relating to right of survivorship) shall be considered as testamentary or subject to Chapter 21 (relating to intestate succession) or Chapter 25 (relating to wills).
      20 Pa.C.S.A. § 6306.

      . Note the official commentary to 20 Pa.C.S.A. § 6306:
      This section is derived from Section 6-106 of the Uniform Probate Code. The Commissioners’ comment to that section states, in part, that:
      The purpose of classifying the transactions contemplated by [this chapter] as nontestamentary is to bolster the explicit statement that their validity as effective modes of transfers at death is not be [sic] determined by the requirements for wills. The section is consistent with [existing law].