text:
    594 A.2d 714
    In re A.S., a Minor DOB 02/13/74. Appeal of J.S. and W.S.
    Superior Court of Pennsylvania.
    Argued June 12, 1991.
    Filed July 26, 1991.

      Frederick I. Huganir, Carlisle, for appellants.
    Julie F. McKain, Carlisle, for appellee.
    Ruby D. Weeks, Carlisle, for participating party.
    Before CIRILLO, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

These are consolidated appeals from a June 7, 1990, Order, which found the child, A.S., to be dependent and placing her in foster care, and a December 31, 1990, Order, which affirmed the Master’s finding that it was in the child’s best interest to remain in foster care.

On June 6, 1990, Children and Youth Services (CYS) received custody of sixteen year old A.S., daughter of appellants, on an emergency basis due to a severe conflict between the child and both parents. On June 7, 1990, the parents stipulated to the facts on which the trial court based its dependency finding and the child was placed in foster care. On July 28, 1990, the parents appealed the initial dependency finding of the court and petitioned for a juvenile dependency determination. At a September 6, 1990, hearing, the court found A.S. continued to be dependent and in need of foster care. The parents appealed the June 7, 1990, Order (No. 00636 Harrisburg, 1990).

At the six-month judicial review hearing held December 19, 1990, the Master found, inter alia, it was in A.S.’s best interest to remain in foster care until high school graduation. On December 31, 1990, the trial court entered an Order affirming the Master’s findings. The parents appealed this Order (No. 00069 Harrisburg, 1991). These appeals have been consolidated for our review.

Appellants now argue the following: 1) the trial court’s Order must be vacated because the court adjudicated the child dependent without sufficient evidence of record to meet the “clear and convincing evidence” standard; 2) the parents’ prior counsel was so ineffective that he undermined the truth determining process such that no reliable adjudication of dependency could have taken place; 3) appellants’ right to fundamental fairness and due process was denied by the trial court because its dependency Order was exclusively the product of the Master’s extensive and routine ex parte contact with only one party (appellee) to the multi-party litigation; 4) finally, there is sufficient cause for a rehearing before a judge because the motion for rehearing averred procedural irregularities and averred the Master failed to advise appellants of their right to have the matter heard by a judge.

Appellee, CYS, argues: 1) the trial court was correct in finding the child dependent based on the clear and convincing evidence of the facts stipulated to by the parties; 2) there is no basis to conclude the parents’ first attorney was ineffective in representing the parents and even if counsel was more effective, the child still would have been found dependent and removed from her parents’ care and custody; 3) the parents may not relitigate or appeal the trial court’s finding of dependency when they did not request a ten-day hearing, did not request reconsideration, did not appeal and did nothing until July 23, 1990, well after the appeal period had expired; 4) parents’ rights to due process and fundamental fairness were protected by the trial court; 5) it was not fatal error by the Master in failing to advise parents of their right to object to the review being conducted by the Master.

Court appointed counsel for the child adopts appellee’s arguments in full and adds that under no circumstances does the child want to return to the custody of her mother and father.

Our review of this case begins with a determination of whether the trial court properly exercised its jurisdiction for the purpose of entering an adjudication of dependency; second, whether the disposition was in the best interest of the child and clear necessity required placement of the child out of the home; and third, whether ineffectiveness of counsel so impaired the proceeding that, despite the record, the truth finding process was so impaired as to require reversal.

The thrust of appellants’ complaint is that the Order of adjudication of dependency entered June 7, 1990, and filed June 11, 1990, was invalid as it was based upon insufficient evidence. This Order was based on a stipulation in open court, entered by the parties, based on the extensive factual statement contained in the petition charging dependency filed within 24 hours of the time the child was taken into custody by CYS. The petition contained sufficient facts of the child’s emotional and physical condition, including running away from home because of severe conflicts with her parents to warrant a finding of dependency, if the facts were established. The fact that this finding was based upon stipulation of the parties rather than taking testimony does not diminish the ability of the court to determine the evidence was clear and convincing. However, in the absence of at least some corroborating evidence presented in open court and the agreement as to the facts, the requirement of section 6341 of the Juvenile Act, 42 Pa.C.S. § 6301 et seq., is that the court make an independent determination that the child is dependent. In this case, while the parents were present and represented by counsel, as was the child, neither the child nor parents testified. The stipulation proposed by counsel for CYS went primarily to the Order and agreement by the parties that the Order should be entered. The problem presented by the stipulation as to dependency is that counsel for the parents, Edgar Casper, did not agree to the facts contained in the petition. On page 5 of the record of the hearing of June 7, 1990, in response to Judge Hoffer’s inquiry, Mr. Casper stated:

The stipulation is based on the allegations insofar as they set forth a severe parent-child conflict and the fact that his Honor at this point in time is quite disturbed, and this leads to the stipulation.
Insofar as I must say for the record, Your Honor, and insofar as some of the specific factual allegations go, I must say I can’t agree to them, can’t admit them, but I don’t think any useful purpose would be served in an adversary proceeding style at this point, as long as we are agreed on what is essential and on stipulation which Mrs. Weeks has properly stated.

(T.T., 6/7/90, p. 5.) It is, therefore, not clear that the facts stated in the petition actually formed the basis for the stipulation to enter an Order finding the child dependent, and proceeding forthwith, without further testimony to enter a disposition pursuant to section 6351, Disposition of dependent child. It appears that most of the parties necessary for a proper hearing on the child’s dependency were present in court and, had their testimony been received, a proper adjudication could have been made. The fact the parents were present and remained silent is not necessarily conclusive of their agreement to the adjudication and disposition. What occurred here was consolidation of the shelter hearing and adjudicatory/dispositional hearings into a ten-minute dialogue between the attorneys and the court. While counsel for CYS asserts in her brief that to involve every case in a full hearing would result in overwhelming the court, it is also necessary to assure due process and to permit the parents to have their day in court. A respite between the adjudicatory hearing, properly conducted, and a dispositional hearing sometimes allows for the parties to pull back, gain some perspective and begin the healing process. It is fair to say that the parents were unhappy with the conduct of the proceedings and their apparent helplessness or they would not have obtained new counsel to attempt to reverse the results. Even if stipulations are admissible in dependency cases, which is in question because of language contained in In Interest of Michael Y., 365 Pa.Super. 488, 530 A.2d 115 (1987), the vagueness of this stipulation and the fact no corroborating testimony was taken nor any of the parties heard from, leaves this Court with the belief that this adjudication has not adequately been founded on clear and convincing evidence. A petition is not evidence and inadequate proof based on a dubious stipulation is not the standard of which this Court approves for adjudicating a child dependent.

We, therefore, hold the adjudication of dependency was flawed and, although this adjudication was not appealed in a timely fashion, the subsequent appeal of the dispositional review permitted the issue to be raised on the basis of ineffective counsel. See Matter of J.P., 393 Pa.Super. 1, 573 A.2d 1057 (1990).

The second procedural error that may not pass unnoticed is the failure of the Master to inform the parents they had a right to proceed before a judge. Section 6305, Masters, provides:

(b) Hearings before masters.—The court of common pleas may direct that hearings in any case or class of cases be conducted in the first instance by the master in the manner provided in this chapter. Before commencing the hearing the master shall inform the parties who have appeared that they are entitled to have the matter head by a judge. If a party objects, the hearing shall be conducted by a judge.

This section appears to be mandatory but unless contested in a timely fashion, and not for the first time on appeal, the failure to so instruct is deemed to be waived.

(d) Rehearing before judge.—A rehearing before the judge may be ordered by the judge at any time upon cause shown. Unless a rehearing is ordered, the findings and recommendations become the findings and order of the court when confirmed in writing by the judge.

42 Pa.C.S. § 6305(d). Failure to inform the parties they are entitled to a hearing before a judge is subject to review pursuant to section 6305(d), but is waived if not. raised in a timely fashion pursuant to that section.

Because of our holding we must remand this case for an adjudicatory hearing and dispositional hearing, if required. So that appellants are not unduly exulted by our ruling, we must add that if properly presented evidence conforming to the allegations in the petition is presented in open court, the adjudication should be the same. The parents must understand that a 17-year old child must be controlled by good example, love and respect; discipline alone will not resolve severe conflicts between parent and child. Refusal to cooperate in family counselling and distancing themselves from the child by refusing visitation will harden the antagonisms and make it impossible to obtain a reconciliation.

Since time is of the essence, it is directed that the adjudicatory hearing on the petition be set within 30 days of the return of the record to the court.

We need not, in light of our ruling, pass on issues relating to clear necessity to place the child out of her home and what is in the child’s best interest.

Order of adjudication vacated and case remanded for further proceedings consistent with this Opinion.

Jurisdiction relinquished.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    594 A.2d 717
    Bernard WILSON, Appellant, v. Lydia WILSON.
    Superior Court of Pennsylvania.
    Submitted June 24, 1991.
    Filed July 26, 1991.

      Meg Groff, Bristol, for appellant.
    Karen L. Saraco, Langhorne, for appellee.
    Before OLSZEWSKI, TAMILIA and FORD ELLIOTT, JJ.
   TAMILIA, Judge:

This appeal was taken by a foster father from the Order of the trial judge, dismissing his petition to obtain partial custody or visitation rights because he had no legal standing in relation to the child. The appellant contends that by his actions and intent, once the child was placed in the care of him and his wife, with his consent, the status of in loco parentis was established which entitles him to the rights and duties of a parent. For purposes of review, we detail the findings of the trial court as to the history of this case.

From the pleadings and from the testimony introduced at the hearing on January 24, 1991 the following history is disclosed: Bernard Wilson married Lydia Floyd on February 4, 1983. No children were born of the marriage. In June, 1988, a child was born to Marcia Rene Jaynes in New Mexico. Ms. Jaynes is distantly related to Mrs. Wilson. Ms. Jaynes determined that she was unable to raise her child, and so she placed the child in the physical custody of Mrs. Wilson to be raised. Ms. Jaynes executed a Power of Attorney to Lydia Wilson, the legal effect of which is not being determined. Likewise we do not determine whether the child was placed with Mrs. Wilson for the purpose of ultimate adoption, or merely for interim care, until such time, if ever, as Ms. Jaynes sought to have her child returned to her. However, the child lived with Mr. and Mrs. Wilson from about June 27, 1988, the date appearing on the Power of Attorney, until June 1990, when Mr. and Mrs. Wilson separated, Mrs. Wilson retaining the child. No action was taken to determine the legal status of baby Wilson until October 15, 1990, when Mr. Wilson filed a petition seeking partial custody.
No natural relationship nor any legal relationship has ever been established between Mr. Wilson and baby boy Wilson whereby petitioner has shown a basis for petitioning to this Court for partial custody of the child he views as his son.

(Slip Op., Rufe, J, 3/26/91, pp. 1-2.)

Here, we are dealing with a foster child as to both parents. The distinction between step-parent and foster child when it relates to standing in loco parentis is not a significant one. In loco parentis has been defined as embodying “two ideas; first, the assumption of a parental status, and, second, the discharge of parental duties.” Commonwealth ex rel. Morgan v. Smith, 429 Pa. 561, 565, 241 A.2d 531, 533 (1968). In Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1977), we said:

Pennsylvania courts recognize that a person may “put himself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal adoption----”
“The rights and liabilities arising out of that relation are, as the words imply, exactly the same as between parent and child.”

Id., 250 Pa.Superior Ct. at 172, 378 A.2d at 881-82 (citation omitted).

In Spells, the Court commented in a fashion that is especially appropriate here:

Whether appellant [foster father here] stood in loco parentis to his step[child] is a relevant factor which the lower court should consider. However, it is not apparent in the instant case whether the court did so, because the record before us is inadequate to determine that issue.

Id., 250 Pa.Superior Ct. at 172-73, 378 A.2d at 882.

We must ask ourselves, assuming appellant/foster father is found to be fit, whether the short period of time (less than two years) during which the child was placed with the Wilsons, is sufficient to establish the in loco parentis status. This question may be answered by another question: Is a natural parent any less imbued with the rights and duties of parenthood because the child has been in esse for less than two years? The obvious response is no.

While the appellee is allegedly distantly related to the child by blood, this alone gives her no presumptive right to deny the appellant access to the child. Here, the trial court found neither party had a clear legal right to the custody of the child as the power of attorney (unauthenticated), at best, only permitted Mrs. Wilson to exercise certain legal actions for and on behalf of the child. It provided none of the legal incidents of an adoption and clearly is no substitute for a finding of custody. As such, appellant and appellee stand on shaky but equal footing, and the best interest and general welfare of the child become of primary importance. The only foundation upon which the child’s welfare may be tested in regard to the issues presented by this case is to explore the relationship of in loco parentis, and thereby fix custody in one or the other, with visitation or partial custody in the party not receiving custody. This inquiry must certainly require some contact with the natural mother, either by her direct testimony or by means of depositions which possibly can be obtained through cooperative undertaking between the Domestic Relations Office in Bucks County and its counterpart at the place of mother’s residence in Arizona. Cases such as this leave the child without legally supported roots and the future can only be uncertain and fraught with emotional and legal time bombs.

The Juvenile Act has a provision wherein a child in this situation could possibly be determined to be dependent. 42 Pa.C.S. § 6302, Definitions (child improperly placed for care or adoption). We have experienced the great difficulty which arises when the child and its natural mother are separated at birth by informal arrangement and several years later the mother attempts to regain custody. In Burke v. Pope, 366 Pa.Super. 488, 531 A.2d 782 (1988), we held the trial court improperly imposed the doctrine of psychological bonding and failed to take proper measures to gradually reunite three children with their 30-year old natural mother, but ordered custody to the 61-year old caretaker. However, foster parents may prevail over the natural parent when bonding, behavioral problems and child’s desire weigh heavily in favor of placement with the foster parent. Jones v. Stone, 343 Pa.Super. 416, 495 A.2d 205 (1985). It is better to establish the respective legal rights of the parties as early as possible rather than to place the child in the limbo of unprotected foster care. To this end, the national policy for children in foster care is to focus on permanency planning, whereby every effort is made to rehabilitate the natural parent(s), and failing this in a period of time that does not unduly interfere with the child’s development and sense of belonging, to provide it with a permanent placement. See In Interest of Sweeney, 393 Pa.Super. 437, 574 A.2d 690 (1990).

The trial court’s decision to curtail the hearing without proceeding to hear the appellant’s claim, by dismissing it as being without standing, was premature and leaves the child vulnerable. A proper inquiry should resolve the custody issue, which is certainly necessary for the child’s best interest, and failing to provide a suitable resolution, should involve the Bucks County Children and Youth Services (CYS) to employ its extended resources to properly move toward a permanent determination of the child’s status. Denying the child access to appellant fosters no conceivable benefit to the child at this stage of the proceeding and may deny it one source of support and stability which is in his best interest.

We, therefore, reverse the Order of the trial court and remand for proceedings not inconsistent with this Opinion. The broad inquiry mandated by law in custody proceedings requires the trial court to ascertain the true nature of the natural mother’s placement of the child with the parties here; the fitness of both parties, the basis for determining the in loco parentis status of appellant; who is the primary caretaker, whether it be appellee or her mother; and whether, ultimately, Bucks County CYS should be involved in planning for the child in light of the dubious legal status of placement with the Wilsons.

Order reversed and remanded to the trial court for proceedings consistent with this Opinion.

Jurisdiction relinquished.

      . "Dependent Child”—A child who:
      (2) has been placed for care or adoption in violation of law.

      . The Uniform Child Custody Jurisdiction Act, 23 Pa.C.S. § 5344, Jurisdiction, provides the authority for CYS to investigate "the home of the person to whom custody is awarded [to determine if it is] satisfactory for the welfare of the child." Id. at (a)(5).


author: POPOVICH, Judge:

text:
    594 A.2d 720
    COMMONWEALTH of Pennsylvania, Appellee, v. Marianna B. EDWARDS, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 22, 1991.
    Filed July 29, 1991.

      Robert P. Vincler, Pittsburgh, for appellant.
    Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for the Com., appellee.
    Before TAMILIA, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This is an appeal from an order entered in the Court of Common Pleas of Allegheny County denying the appellant Marianna Edward’s motion to dismiss a harassment charge. We affirm the trial court’s ruling but remand for further proceedings consistent with this Opinion.

Marianna Edwards was charged by summary citation with one count of disorderly conduct and one count of harassment. She pleaded not guilty, whereafter a trial was held before a district justice. Following the trial, Edwards was acquitted of disorderly conduct. The district justice indicated that he would render a verdict regarding the harassment charge within five days. Two days later, the district justice found Edwards guilty of harassment and imposed a fine of $300.00 plus costs of $48.50. A timely notice of appeal was filed with the Court of Common Pleas.

When Edwards appeared for her trial de novo, she presented to the trial court a motion to dismiss, asserting that double jeopardy principles precluded a re-trial on the charges. The trial court denied Edwards’ motion. This appeal followed.

Edwards raises three issues for our consideration:

1. Whether it was reversible error [that] the district justice [did] not announce [the] verdict immediately at the conclusion of trial?
2. Whether the trial court erred as a matter of law in denying [her] motion to dismiss the harassment charge?
3. Whether [Edwards] can be re-tried when she has already been found not guilty of an offense arising out of the same set of facts?

Appellant’s brief, at i.

Edwards first argues that the district justice violated Pa.R.Crim.P. 83(d) and (e) by failing to announce the verdict in open court and by advising her of the verdict and sentence by mail. In support of her contention, Edwards cites Commonwealth v. Adame, 363 Pa.Super. 405, 526 A.2d 408 (1987).

Before we begin our analysis, we note the following. Adame involved a situation distinguishable and much more egregious than the one presented here. In Adame, the Court of Common Pleas committed many post-verdict violations. See also Commonwealth v. Mercalde, 365 Pa.Super. 594, 530 A.2d 469 (1987).

Here, we are asked to resolve an appeal regarding the denial of a motion to dismiss. There has been no appeal de novo on the merits of the harassment charge. The Court of Common Pleas has not made any determinations regarding the substantive aspects of this case.

Also, Adame was decided in 1987. At that time, this Court properly noted: "... it cannot be denied that the general post-verdict rules are applicable to summary cases appealed de novo to the Court of Common Pleas.” Id,., 363 Pa.Superior Ct. at 408, 526 A.2d at 409-410. The Adame court recognized the need to have “hearings, proceedings, sentencings and trials conducted in an open forum and of record.” Id., 363 Pa.Superior Ct. at 409, 526 A.2d at 410.

The above principles hold true today. However, here, Edwards was advised of her appellate rights by mail following a determination by the district justice, not by the Court of Common Pleas. Pa.R.Crim.P. 84, while referring to trials held in the defendant’s absence, nevertheless concludes (in pertinent part):

(d) If the defendant is found guilty, the issuing authority shall impose sentence, and shall notify the defendant of the conviction and sentence by first class mail.

(Pa.R.Crim.P. 84 was amended in February, 1989, to include the above language. The rule became effective July 1, 1989.) The comment to Rule 84 provides as follows:

Paragraphs (a)-(c) of this rule replace previous Rule 64. Paragraph (d), which is derived from previous Rules 64(d) and 65(e), was amended in 1989 to provide notice to the defendant of conviction and sentence after a trial in absentia to alert the defendant that the time for filing an appeal has begun to run.

In light of this provision, we find that Edwards was not prejudiced or, in the alternative, that the district justice did not commit reversible error by notifying Edwards of her conviction via regular mail. It appears that Rule 84(d) was promulgated as a procedural safeguard to insure that an accused is informed of his/her conviction, sentence and appellate rights.

We agree with Edwards that the district justice was in violation of Pa.R.Crim.P. 83. However, even under Adame, and pursuant to our preceding discussion, we find no prejudice to Edwards and no reason to “remand with directions that the trial court enter a finding of guilty or not guilty in accordance with accepted practice in this Commonwealth ____” Adame, 363 Pa.Super. at 410, 526 A.2d at 410.

Pa.R.Crim.P. 83 reads, in pertinent part:

(d) The verdict and sentence, if any, shall be announced in open court immediately upon the conclusion of the trial. [••..]
(e) At the time of sentencing, the issuing authority shall advise the defendant of the right to appeal and trial de novo, and the time within which to exercise that right.

Here, the district justice announced the acquittal for the charge of disorderly conduct in open court. He then reserved decision on the harassment charge and told Edwards that she would be informed of the verdict within five days. Two days later, the district justice reached a verdict of guilty and informed Edwards of the verdict by mail, together with information regarding her sentence and her appellate rights. N.T., May 3, 1990, at 5. While this procedure was not in accordance with the above rules, it would serve no purpose to remand this case for procedural conformity. Edwards was cognizant of her situation. Indeed she filed a timely appeal to the Court of Common Pleas and was in no way prejudiced by the district justice’s procedural deviations. Therefore, on this basis, we dispose of Edward’s first claim. See Commonwealth v. Hurst, 367 Pa.Super. 214, 217, 532 A.2d 865, 867 (1987) (appellant in Hurst was not prejudiced by a procedural misstep).

Edwards’ remaining issues involve the principle of double jeopardy. It appears that Edwards is making two arguments: (a) that she may not be re-tried in the Court of Common Pleas regarding the charge of disorderly conduct and (b) that she may not be re-tried on the charge of harassment because she was acquitted on a related charge arising out of the same transaction.

Pa.R.Crim.P. 83(b) provides, in pertinent part:

If the defendant pleads not guilty, the issuing authority shall try the case in the same manner as trials in criminal cases are conducted in the courts of common pleas when jury trial has been waived, however, in all summary cases arising under the Motor Vehicle Code ... or local traffic ordinances, the law enforcement officer observing the defendant’s alleged offense may, but shall not be required to, appear and testify against the defendant____

Moreover, Pa.R.Crim.P. 86 provides, in pertinent part:

(a) When an appeal is authorized by law in a summary proceeding, including a prosecution for violation of a municipal ordinance which provides for imprisonment upon conviction or upon failure to pay a fine, an appeal shall be perfected by filing a notice of appeal within thirty (30) days after the conviction or other final order from which the appeal is taken. The notice of appeal shall be filed with the officer of the court of common pleas designated to receive such papers.
(f) When a defendant appeals after conviction by an issuing authority in any summary proceeding, upon the filing of the transcript and other papers by the issuing authority, the case shall be heard de novo by the appropriate division of the court of common pleas as the president judge shall direct____
(g) This rule shall provide the exclusive means of appealing from a summary conviction. Courts of common pleas shall not issue writs of certiorari in such cases.

Id. [Emphasis added]. Clearly, the rules contemplate only appeals from convictions, not from acquittals. To allow an appeal from an acquittal certainly would violate double jeopardy principles. Commonwealth, Dept. of Transp. v. Springbrook Transport, Inc., 390 Pa.Super. 308, 568 A.2d 667 (1990).

However, contrary to Edwards’ assertion, this issue is not before us. The trial court denied Edwards’ motion to dismiss the harassment charge. The issue surrounding the harassment conviction is all that we are asked to resolve. See also N.T., May 3, 1990, at 18. Cf id. at 20.

In light of the applicable law, we hold that the trial court properly denied Edwards’ motion to dismiss. There is no reason that Edwards may not be convicted of harassment simply because she was acquitted of disorderly conduct. Commonwealth v. Maute, 336 Pa.Super. 394, 407, 485 A.2d 1138, 1145 (1984) (inconsistent verdicts are permissible if the evidence supports the verdicts). See Commonwealth v. Anderson, 379 Pa.Super. 589, 550 A.2d 807 (1988) (en banc) (accord). Double jeopardy principles are not implicated under these circumstances. Cf. Commonwealth v. Harris, 400 Pa.Super. 12, 582 A.2d 1319 (1990) (en banc). See Commonwealth v. Ryan, 300 Pa.Super. 156, 164, 446 A.2d 277, 281 (1982) (“The double jeopardy clause does not protect against retrial for the same offense if the conviction is set aside through the defendant’s procurement.”); Commonwealth v. Beck, 295 Pa.Super. 154, 160, 441 A.2d 395, 398 (1982) (“... the imposition of a harsher sentence in a trial de novo in the court of common pleas, following a trial in a municipal court, did not constitute double jeopardy.”); Commonwealth v. Possinger, 264 Pa.Super. 332, 399 A.2d 1077 (1979) (accord). See also Commonwealth v. Trill, 374 Pa.Super. 549, 559-61, 543 A.2d 1106, 1111 (1988) (discussing inconsistent verdicts).

Edwards’ appeal to the Court of Common Pleas was perfected in a timely fashion and a trial de novo was scheduled. Edwards states that the filing of the motion to dismiss created “procedural confusion” (Appellant’s brief, at 6), but she does not assert that she intended to relinquish her right to a trial before the Court of Common Pleas. Because she was already before the Court of Common Pleas when she presented her petition to dismiss and because, therefore, she was not afforded the opportunity to be tried anew on the charge of harassment, we remand this case for a trial de novo on that charge consistent with the dictates of this Opinion. Cf N.T., May 3, 1990, at 22-23.

For the foregoing reasons, we affirm the order of the trial court denying Edwards’ motion to dismiss and remand this case for proceedings consistent with this Opinion.

Jurisdiction relinquished.

      . 18 Pa.C.S.A. § 5503.

      . 18 Pa.C.S.A. § 2709(a)(3). .

      . Edwards states that the filing of the motion to dismiss led to "procedural confusion.” Appellant’s brief, at 6. "The motion to dismiss was filed because Magistrate Russo did not rule on one of the charges brought against appellant at the time of trial, but instead mailed his decision to the appellant five days later." Id. Edwards now argues that she was subjected to double jeopardy violations and that the magistrate should have decided her case on the date of the trial. We will discuss these issues, infra.

      . We base our review of the facts upon our reading of the briefs. This Court has not been provided with any notes of testimony from the trial before the district justice. The record that has been certified for appeal contains only the transcript of the proceedings before the Court of Common Pleas. It is the appellant’s responsibility to certify a complete record for purposes of appellate review. See Pa.R.A.P. Ch. 19. In its absence, we rely on the materials properly before us at this time.

      . Naturally, if the trial court finds that the evidence is insufficient to support her conviction, then Edwards’ adjudication of guilt cannot stand. See Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986) (discussing sufficiency of the evidence test).

      . Edwards cites Commonwealth v. Hall, 371 Pa.Super. 333, 538 A.2d 43 (1988) to reinforce her double jeopardy argument. We find that the Hall case actually serves the Commonwealth’s position. In Hall, one of the "principal questions] ... [was] whether the unlawful sale of firearm offense, to which the appellant pleaded guilty in 1986, [could] be construed, for double jeopardy purposes, to be the “same offense” as either burglary, theft or conspiracy so as to preclude the latter's presentment in court.” Id., 371 Pa.Superior Ct. at 338, 538 A.2d at 46. This Court set forth the applicable rules of law, as follows:
      The established test for determining whether offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932):
      The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not____ [Id.]

        It has been stated that if the offenses under scrutiny are the same under this test for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions. Thus, unless “each statute requires proof of an additional fact which the other does not, ... the Double Jeopardy Clause prohibits successive prosecutions as well as cumulative punishment."

        Hall, 371 Pa.Super. at 338-39, 538 A.2d at 46 (citations omitted).
      Here, clearly, one may harass without engaging in disorderly conduct, and vice versa. "A person commits [the summary offense of harassment] when, with intent to harass, annoy or alarm another person: (3) he engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.” 18 Pa.C.S.A. § 2709(3). Comparatively, "[a] person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) engages in fighting or threatening, or in violent or tumultuous behavior; (2) makes unreasonable noise; (3) uses obscene language, or makes an obscene gesture; or (4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor. 18 Pa.C.S.A. § 5503. Cf. Commonwealth v. Walton, 405 Pa.Super. 281, 592 A.2d 335 (1991).

      . Cf. N.T., May 3, 1990, at 10.


text:
    594 A.2d 724
    Tamela (Fontine) LEE v. Joseph FONTINE, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 24, 1991.
    Filed July 30, 1991.
    Thomas E. Scott, Greentown, for appellant.
    Eric M. Levande, Tunkhannock, for appellee.
    Before OLSZEWSKI, TAMILIA and FORD ELLIOTT, JJ.
   TAMILIA, Judge:

This is an appeal from the custody modification Order of February 19, 1991, authorizing appellee/mother to establish residence for herself and the parties’ minor children in the state of Washington. The Order further provided appellant/father shall have partial physical custody of the minor children for the purpose of visitation each summer, commencing one week following the close of school and ending one week prior to the reopening of school, with the costs of transporting the children for the purpose of visitation to be divided equally between the parties.

Appellant now argues the trial court erred in its interpretation and application of the appropriate standard for cases where the primary custodial parent seeks to relocate outside the Commonwealth. We find this argument without merit for several reasons.

It has been held in Pennsylvania that custody and visitation matters are to be decided on the basis of the judicially determined “best interests of the child” standard, on a case by case basis, considering all factors which legitimately have an effect upon the child’s physical, intellectual, moral and spiritual well-being. Zummo v. Zummo, 394 Pa.Super. 30, 574 A.2d 1130 (1990).

On appeal, our scope of review is broad in that we are not bound by deductions and inferences drawn by the trial court from the facts found, nor are we required to accept findings which are wholly without support in the record. On the other hand, our broad scope of review does not authorize us to nullify the factfinding function of the trial court in order to substantiate our judgment for that of the trial court. Rather, we are bound by findings supported in the record, and may reject conclusions drawn by the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court. See Karis v. Karis, 518 Pa. 601, 608, 544 A.2d 1328, 1332 (1988); Lombardo v. Lombardo, 515 Pa. 139, 147-48, 527 A.2d 525, 529 (1987); Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 236-37, 478 A.2d 800, 805-06 (1984).

Id., 394 Pa.Superior Ct. at 54, 574 A.2d at 1142.

Appellant contends a recent decision by a panel of this Court in Gruber v. Gruber, 400 Pa.Super. 174, 583 A.2d 434 (1990), has altered the “best interests” standard to a more specific three-prong test in resolving custody relocation disputes. Gruber set forth the following factors to be considered by the trial court in deciding whether a custodial parent and children shall be permitted to relocate at a geographical distance from a noncustodial parent:

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

Id., 400 Pa.Superior Ct. at 184-85, 583 A.2d at 439. The Gruber Court took pains to assert that “achieving ‘the best interests of the child’ remains the ultimate objective in resolving all child custody and related matters,” but only emphasized “that the best interests of the child are more closely allied with the interests and quality of the custodial parent and cannot, therefore, be determined without reference to those interests.” Id., 400 Pa.Superior Ct. at 183, 583 A.2d at 437-38 (footnote omitted).

While we acknowledge the refinements posited in Gruber in relocation cases, they do not create a new standard and we hasten to stress the polestar of our analysis in this case, just as it was in Gruber and a legion of prior custody cases, remains the best interests of the child, and on that basis we examine the findings of the trial court.

Two specific sections of the custody law as contained in 23 Pa.C.S. § 5301 et seq., govern the court’s decision in this and similar cases.

§ 5301. Declaration of policy
The General Assembly declares that it is the public policy of this Commonwealth, when in the best interest of the child, to assure a reasonable and continuing contact of the child with both parents after a separation or dissolution of the marriage and the sharing of the rights and responsibilities of child rearing by both parents and continuing contact of the child or children with grandparents when a parent is deceased, divorced or separated.

This section must be considered and the court must be satisfied the moving party is not undertaking the move to defeat the declared legislative intent. In removing the child from the normal relational contact with one of the parents and/or grandparents, the sole consideration stated by the legislature is the best interest of the child. Any judicially determined preconditions may amplify, but do not alter, the best interest standard.

Secondly, to assure that a review will be undertaken when a move is contemplated, the statute provides as follows:

§ 5308. Removal of party or child from jurisdiction
If either party intends to or does remove himself or the child from this Commonwealth after a custody order has been made, the court, on its own motion or upon motion of either party, may review the existing custody order.

With these considerations in mind we are prepared to review the actions and disposition of the trial court.

From our thorough examination of the record and the trial court’s able Opinion, reflecting its own analysis of the record and specifying the reasons for its decision, we find no gross abuse of the court’s discretion requiring reversal of its decision. Ashford v. Ashford, 395 Pa.Super. 125, 576 A.2d 1076 (1990). As the trial court stated:

1. The advantages of the move to Washington far outweigh the disadvantages. Both [appellee and her husband] are currently receiving public assistance. In Washington, both will have good jobs. Here, they reside in a public housing project. In Washington, they will have their own home. The quality of the children’s lives will be greatly improved by the move to Washington. The disadvantage, of course, is the reduced contact with their father and other relatives in Pennsylvania. This, however, can be remedied by the extensive summer visitations provided by this court’s order.
2. The motives of Mrs. Lee are without question. The move to Washington has been well thought out and planned for two years. Mr. Fontine’s motivation, however, is less clear. Often, Mr. Fontine will not take the youngest child, Matthew, for visitation. Matthew has cerebral palsy and organic brain disorder. He cannot communicate and requires constant attention. Obviously, Matthew is difficult to handle (N.T. 20). His father has expressed little or no interest in his educational development (N.T. 74-75). Yet, now he says he wants full physical custody of Matthew and the three other children. The court did not view Mr. Fontine’s testimony as either realistic or honest, and was constrained to conclude that he opposes the move to Washington, not from consideration of the best interests of the children, but from self-interest, or to frustrate his ex-wife’s efforts at self-improvement.
3. Realistic, substitute visitation arrangements are available for the three older children. Matthew’s transportation from Washington to Pennsylvania will be difficult unless accompanied by a parent or other adult, due to his disability. But, the extended summer visitation will ensure a continuing, meaningful relationship between the noncustodial parent and the children, and will maintain a relationship with other family members. Mr. Fontine’s [sic] opposes the summer visitation because summer will be his “busy” season, if and when he should obtain employment (N.T. 63). This further serves to underscore the court’s conclusion that his request for primary physical custody of all four children, (one of whom is severely handicapped) is specious. And yet, he will be too busy for them in the summer?

(Slip Op., Vanston, P.J., 3/22/91, pp. 3-4.)

Appellant argues that because of the limited financial resources of the parties, the trial court’s visitation schedule does not “adequately foster an ongoing relationship” between the children and appellant, the noncustodial parent. Appellant argues the great distance involved between Pennsylvania and Washington will make summer travel for the children cost-prohibitive, particularly in light of the special needs of a severely handicapped child. While we empathize with the exigencies of the situation facing the parties in the future, and the resulting need for compromise and flexibility, we cannot alter the physical distance between Pennsylvania and Washington, nor can we say the trial court’s resolution of this issue was not realistic. The custodial parent and the children will be in an improved environment which is most certainly in the children’s best interest.

For the foregoing reasons, we concur with the trial court’s findings, allowing appellee to relocate with her children to Washington.

Order affirmed.

      . We note that although appellant disputes the refinements made by this Court’s decision in Gruber v. Gruber, 400 Pa.Super. 174, 583 A.2d 434 (1990), he offers no support for his allegation that the “best interest” standard has been changed, and eventually concedes the children’s best interests are “still an applicable consideration after the emergence of the three-prong Gruber test____” (Brief of Appellant, p. 16.)


author: BECK, Judge:

text:
    594 A.2d 727
    COMMONWEALTH of Pennsylvania, Appellant, v. Richard Lee ADAMS, Appellee.
    Superior Court of Pennsylvania.
    Argued May 24, 1991.
    Filed July 31, 1991.

      Charles Coleman, Asst. Dist. Atty., Reading, for Com., appellant.
    Lawrence J. Hracho, Reading, for appellee.
    Before WIEAND, BECK and HUDOCK, JJ.
   BECK, Judge:

The issue in this case is whether under Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), the trial court erred in dismissing drunk driving charges against Richard Lee Adams where he had previously pled guilty to the summary offense of reckless driving. The trial court found that double jeopardy barred his subsequent prosecution for drunk driving which arose out of the same incident. We conclude that, under the circumstances of the instant case, the principles announced in Grady v. Corbin do not require dismissal on double jeopardy grounds. Therefore, we reverse.

The relevant facts are not in dispute. In the early morning hours of December 17, 1989, the police officer saw Adams driving his car on the berm of the road. The officer turned his police vehicle around and followed Adams. He saw Adams driving in an erratic manner, unable to stay in his lane of the highway. When the officer pulled him over, Adams exhibited numerous signs of intoxication including the odor of alcohol, slurred speech, slow physical reactions and difficulty in retrieving his license and registration. The officer had Adams perform several field sobriety tests, all of which Adams was unable to complete. Adams was arrested and he consented to a blood alcohol test. The test results indicated a .265 blood alcohol level.

On December 18, 1989, the same officer issued a citation charging Adams with reckless driving. 75 Pa.C.S. § 3714 (Purdon 1977). Adams pled guilty to reckless driving by signing the citation and paying the fine before he received notice that a criminal complaint had also been filed charging him with driving under the influence of alcohol (DUI), 75 Pa.C.S. § 3731(a)(1) and (a)(4) (Purdon 1990). Pretrial motions were heard and trial on the DUI was scheduled. Prior to trial however, Adams filed a petition to dismiss the DUI prosecution on the basis of Grady v. Corbin, supra, which the United States Supreme Court decided on May 29, 1990. Both parties briefed and argued the double jeopardy issue. After a hearing the trial court found that double jeopardy barred the DUI prosecution and ordered it dismissed. It is from this order that the Commonwealth appeals.

In an en banc decision in Commonwealth v. Labelle, 397 Pa.Super. 179, 579 A.2d 1315 (1990), this court applied Grady v. Corbin. In a more recent panel decision, Commonwealth v. Kline, 405 Pa.Super. 412, 592 A.2d 730 (1991), we explained the import of Grady as follows:

In [Grady] the Supreme Court clarified and expanded the inquiry which must be undertaken in order to determine whether successive prosecutions violate the double jeopardy guarantee. It focused on the dangers inherent in multiple prosecutions and stated that the Blockburger [v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ] test, which analyses the statutory elements of the charged offenses to reveal whether they are identical or one is a lesser included offense of the other, is insufficient by itself to protect defendants against the burdens of multiple trials. Therefore, the Court held that even if offenses would pass muster under the Blockburger test, a further inquiry is necessary to assure that the double jeopardy right is not violated. Thus, the Court held that, “the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted____ The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct.”

Commonwealth v. Kline, 405 Pa.Super. at-, 592 A.2d at 732 (footnote and citation omitted; emphasis supplied).

In this case in order to determine whether the prosecution for DUI is barred by Adams’ previous plea of guilty to reckless driving arising out of the same incident, we are required to engage in a two part inquiry. The first part is the Blockburger test. If the offenses at issue either have identical statutory elements or if one is the lesser included offense of the other, subsequent prosecution is barred by double jeopardy. See Grady, 495 U.S. at-, 110 S.Ct. at 2090, 109 L.Ed.2d at 561. If, however, Blockburger alone does not bar the second prosecution, the prosecution may nevertheless be barred if in order to prove essential elements of its subsequent case, the Commonwealth necessarily must prove conduct for which the defendant already has been prosecuted. This second prong of the inquiry was added by Grady and comprises the “same conduct” test.

Application of the Blockburger test does not bar the DUI prosecution in the instant case. In Commonwealth v. Labelle, supra, 397 Pa.Super. at 194, 579 A.2d at 1323, this court specifically found that reckless driving and driving while intoxicated each contain statutory elements which the other does not. In order to prove reckless driving the Commonwealth must establish that the defendant drove his vehicle in careless disregard for the safety of persons or property, an offense which requires no proof of intoxication. Therefore, to prove reckless driving the Commonwealth must show that defendant was driving the vehicle in such a manner as demonstrates the mens rea of careless disregard for the safety of persons or property. In contrast, to prove DUI, the Commonwealth need not establish these elements. Instead, a DUI conviction is based on proof that a person has 1) driven, operated or been in control of a vehicle; while either 2) (a) under the influence of alcohol to the extent that he was incapable of safe driving, or (b) having an amount of alcohol in the blood of .10 percent or greater. See Commonwealth v. Labelle, 397 Pa.Super. at 192, 579 A.2d at 1322.

Since the elements of the crimes are not the same, and one is not a lesser included offense of the other, we conclude Blockburger does not by itself bar subsequent prosecution. Therefore, we must resolve, pursuant to Grady, whether in order to convict appellant of DUI, the Commonwealth must prove the same conduct it would have had to prove to convict appellant of reckless driving. We conclude that because proof of Adams’ reckless driving conduct is not necessary to establish the elements of DUI in this case, double jeopardy will not bar the subsequent prosecution.

At the heart of our resolution of the instant case is the fact that Adams was charged under two subsections of the DUI statute: 75 Pa.C.S. § 3731(a)(1) and (a)(4). Pursuant to section 3731(a)(1) the Commonwealth would have to prove that Adams was intoxicated to a degree which rendered him unable to drive safely. In order to establish the offense charged under that section it is arguable that the Commonwealth would have to prove the entirety of Adams’ conduct which comprised the reckless driving conviction. However, the Commonwealth could prove DUI in this case based entirely on a violation of section 3731(a)(4), in that Adams’ blood alcohol level was significantly higher than .10 and was in fact .265 percent. This fact alone, along with proof that Adams’ was in actual physical control of the vehicle, would suffice to support the essential elements of DUI under section 3731(a)(4).

The distinction we draw here was acknowledged in Grady and stems from its interpretation of the language of the double jeopardy clause. The fifth amendment forbids any person to be subject to twice being placed in jeopardy for the same offense. Essential to double jeopardy jurisprudence is discerning what constitutes the “same offense” for purposes of successive prosecutions. In defining “same offense” the Supreme Court has repeatedly refused to adopt a “same transaction” test which would indeed bar the DUI prosecution here even if the Commonwealth could prove its essential elements without proving the reckless driving conduct, because both charges arise out of a single criminal transaction.

In Grady the Court adopted what it considers to be a meaningful alternative to the same transaction test. Therefore, in Grady, the Court emphasized that double jeopardy would not be offended if the State relied on proving the subsequent charges by establishing conduct which, although part of the same criminal transaction, was not conduct which constituted the offenses for which defendant had already been convicted. The distinction may at times be difficult to ascertain and may require the prosecution to demonstrate the proof upon which it intends to rely in order to escape the double jeopardy bar. Nevertheless, consistent with Grady, we hold that where as here the Commonwealth can establish that the successful prosecution of the subsequent offense does not depend on proof of the conduct which comprised the previous conviction, the double jeopardy clause will not require more.

Finally, the result we reach today was forecast by our decision in Kline, supra. In Kline, the facts were substantially similar to those in the instant case, with one critical distinction. The defendant there was stopped after a police officer observed her car weaving back and forth across the median line of the highway. Prior to DUI charges being filed, Kline pled guilty to failing to drive on the right side of the roadway. Shortly thereafter, a DUI complaint was filed. However, Kline had refused to consent to a blood alcohol test and therefore the blood alcohol content of the defendant was unknown and she was not charged under section 3731(a)(4). Thus in order to establish that defendant was intoxicated to the point of making her incapable of safe driving, as required under subsection (a)(1), the Commonwealth had to stipulate that the evidence on the DUI was dependent on showing that Kline was weaving back and forth across the center line of the roadway. Since that conduct was the entirety of the conduct for which she had already been convicted, the subsequent DUI prosecution in Kline violated the double jeopardy guarantee. We noted, however, “that if Kline had consented to a blood alcohol test and if her blood alcohol content was shown to be 0.10 percent by weight or greater, proof of that fact along with the fact that Kline operated the vehicle would be sufficient to support a conviction for DUI under section 3731(a)(4).” Commonwealth v. Kline, 405 Pa.Super. at-, 592 A.2d at 734. The implication of this reasoning was that under those hypothetical circumstances, the double jeopardy bar would be avoided. Kline’s hypothetical is Adams’ case.

Based upon the foregoing, we conclude that the trial court erred in dismissing the DUI prosecution against Adams. Prosecution for DUI not based upon Adams’ conduct which constituted reckless driving in the first prosecution does not offend double jeopardy.

Order reversed and case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

      . In addition, the reckless driving charge requires proof that defendant was “driving” the vehicle in question, as opposed to the broader requirements of the DUI statute that defendant shall not “drive, operate or be in actual physical control of the movement of any vehicle” while under the influence of alcohol.

      . Section 3731(a)(1) provides:
      (a) Offense defined.—A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
      (1) under the influence of alcohol to a degree which renders the person incapable of safe driving;

      . Section 3731(a)(4) provides:
      (a) Offense defined.—A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
      (4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.


author: WIEAND, Judge:

text:
    594 A.2d 731
    Rosina CINOUSIS and John Cinousis, H/W, Appellants, v. HECHINGER DEPARTMENT STORE, Appellee.
    Superior Court of Pennsylvania.
    Argued May 22, 1991.
    Filed Aug. 2, 1991.
    Steven C. Forman, Philadelphia, for appellants.
    Michael P. Zipfel, Philadelphia, for appellee.
    Before WIEAND, BECK and HUDOCK, JJ.
   WIEAND, Judge:

Rosina and John Cinousis,. residents of New Jersey, filed a civil action in Philadelphia, Pennsylvania, to recover damages for injuries sustained by the wife-plaintiff when she fell in a Hechinger Department Store in Deptford, New Jersey. The defendant, Hechinger Department Store, is a Delaware corporation whose principal place of business is in Landover, Maryland. The defendant also operates stores in Pennsylvania, with at least one store in Philadelphia. Pursuant to 42 Pa.C.S. § 5322(e), the defendant moved to dismiss the action on grounds that Pennsylvania was an inconvenient forum. The trial court agreed and entered an order dismissing the action. Plaintiffs appealed.

The doctrine of forum non conveniens has been codified at 42 Pa.C.S. § 5322(e) as follows:

(e) Inconvenient forum.—When a tribunal finds that in the interest of substantial justice the matter should be heard in another forum, the tribunal may stay or dismiss the matter in whole or in part on any conditions that may be just.

“Forum non conveniens permits a court, exercising its discretion, to refuse to entertain a case even if jurisdictional requirements are met. Since the decision to dismiss is discretionary with the trial court, it is reversible only as an abuse of discretion.” Beatrice Foods Co. v. Proctor and Schwartz, Inc., 309 Pa.Super. 351, 359, 455 A.2d 646, 650 (1982). See also: Rini v. New York Central Railroad Co., 429 Pa. 235, 238, 240 A.2d 372, 373 (1968) (plurality opinion); Plum v. Tampax, Inc., 399 Pa. 553, 560, 160 A.2d 549, 553 (1960); Daugherty v. Inland Tugs Co., 240 Pa.Super. 527, 531, 359 A.2d 465, 467 (1976). In this regard,

[t]he supreme court has described the heavy burden facing the appellant from a discretionary trial court determination: “[I]t is not sufficient to persuade the appellate court that it might have reached a different conclusion if, in the first place, charged with the duty imposed on the court below; it is necessary to go further and show an abuse of the discretionary power.” Mackarus’s Estate, 431 Pa. 585, 596, 246 A.2d 661, 666-67 (1968), quoting Garrett’s Estate, 335 Pa. 287, 292-93, 6 A.2d 858, 860 (1939). If there is any basis for the trial court’s decision, the decision must stand. Id.

Brown v. Delaware Valley Transplant Program, 371 Pa.Super. 583, 586, 538 A.2d 889, 891 (1988).

“It is well within the power of [a trial] court, in the interests of justice, to decline to exercise its jurisdiction where, upon consideration of the parties, the witnesses, the situs of the cause of action and other kindred reasons, the litigation can more appropriately be conducted in another forum.” Plum v. Tampax, Inc., supra, 399 Pa. at 560, 160 A.2d at 552. See: Koster v. (American) Lumbermens Mutual Casualty Co., 330 U.S. 518, 67 S.Ct. 828, 91 L.Ed. 1067 (1947) and Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). See also: Alford v. Philadelphia Coca-Cola Bottling Co., Inc., 366 Pa.Super. 510, 513, 531 A.2d 792, 794 (1987) (“[Ejection 5322(e) applies when a tribunal of this jurisdiction determines that a tribunal in another jurisdiction would offer a more convenient and appropriate situs for the action.”). The factors to be considered in making such a determination have been identified by our Supreme Court as follows:

“c. Factors to be considered. The two most important factors look to the court’s retention of the case. They are (1) that since it is for the plaintiff to choose the place of suit, his choice of a forum should not be disturbed except for weighty reasons, and (2) that the action will not be dismissed in any event unless an alternative forum is available to the plaintiff. Because of the second factor, the suit will be entertained, no matter how inappropriate the forum may be, if defendant cannot be subjected to jurisdiction in other states. The same will be true if plaintiff’s cause of action would elsewhere be barred by the statute of limitations, unless the court is willing to accept defendant’s stipulation that he will not raise this defense in the second state.
“The remaining factors can best be grouped under the two principal interests involved: those of the parties and those of the public. This has been done as follows by Mr. Justice Jackson in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 [67 S.Ct. 839, 843, 91 L.Ed. 1055] (1947):
“ ‘If the combination and weight of factors requisite to given results are difficult to forecast or state, those to be considered are not difficult to name. An interest to be considered, and one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. The court will weigh relative advantages and obstacles to a fair trial. * * *
“ ‘Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. There is an appropriateness, too, in having the trial * * * in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.’
“These two sets of factors are not mutually exclusive but rather supplement each other.”

Plum v. Tampax, Inc., supra, 399 Pa. at 560-562, 160 A.2d at 553, quoting Comment to § 117(e) of Restatement, Second, Conflict of Laws. See also: Rini v. New York Central Railroad Co., supra, 429 Pa. at 238-240, 240 A.2d at 373-374; Brown v. Delaware Valley Transplant Program, supra, 371 Pa.Super. at 586-587, 538 A.2d at 891; Petty v. Suburban General Hospital, 363 Pa.Super. 277, 281-282, 525 A.2d 1230, 1232 (1987).

Applying these factors to the instant case, the trial court concluded that Pennsylvania was an inconvenient forum and that appellant’s cause of action would be more appropriately heard in New Jersey. The trial court found the following factors to be determinative:

The plaintiffs are not residents of Pennsylvania. The pertinent events giving rise to the cause of action occurred outside of Pennsylvania. The relevant medical records of plaintiff’s physician after the alleged accident are located outside of Pennsylvania. The known witnesses reside outside of Pennsylvania and any additional witnesses will most likely reside outside of Pennsylvania. Finally, the plaintiffs have another more convenient forum available to them in New Jersey.

We discern no abuse of discretion in the trial court’s decision.

Because appellants are not residents of Pennsylvania, the interest of this Commonwealth in providing a forum for its residents to litigate their disputes is not implicated. See: Bolanos v. Gulf Oil Corp., 502 F.Supp. 689, 691 (W.D.Pa. 1980), aff'd, 681 F.2d 804 (3d Cir.1982). The fact that the witnesses and documentary evidence are located in New Jersey make it potentially more difficult to try this case in Pennsylvania. Continued proceedings in Pennsylvania also offer the possibility of delay and increased costs in completing a trial. Additionally, because the events at issue in this case occurred in New Jersey, it is likely that the substantive rights of the parties will be determined according to New Jersey law. Under similar circumstances, it has been observed that:

in view of the paucity of contacts that the instant litigation has with the Commonwealth of Pennsylvania, absent compelling reasons, appropriate weight should be given to the desirability of having a Pennsylvania judge interpret and apply the law of another jurisdiction to determine the respective rights and duties of the parties in question. The only discernible contact that this case has with Pennsylvania is the location of plaintiff’s counsel, and we refuse to recognize this as a compelling consideration. In sum, the circumstances presented in the instant case supply the “weighty reasons” necessary to disturb this plaintiffs choice of forum.

Westerby v. Johns-Manville Corp., 32 Pa.D & C.3d 163, 174-175 (Phila.Co.1982) (cited with approval in Alford v. Philadelphia Coca-Cola Bottling Co., Inc., supra). See also: Daugherty v. Inland Tugs Co., supra (trial court abused its discretion by refusing to dismiss lawsuit whose only contact with Pennsylvania was that plaintiffs expert witness resided there); Norman v. Norfolk and Western Railway Co., 228 Pa.Super. 319, 323 A.2d 850 (1974) (same).

In view of the absence of any significant contact between appellant’s cause of action and this Commonwealth, the need to apply the substantive law of New Jersey, and the significant backlog of cases which currently plagues the dockets of the Philadelphia court system, we hold that the trial court did not abuse its discretion when it dismissed appellant’s action in the instant case.

Order affirmed.


text:
    594 A.2d 733
    CURBEE, LTD., t/a Black Angus Inn and George R. James and Elsie D. James and Curtis A. James and Betty Jean James, Appellants, v. Louise RHUBART, Administratrix of the Estate of Douglas Rhubart, Deceased and Mary DeFazio, Administratrix of the Estate of Thomas J. Blair, Deceased, and St. Paul Fire and Marine Insurance Company and Erie Insurance Group and Old Guard Mutual Insurance Company and American Casualty Company, Appellees.
    Superior Court of Pennsylvania.
    Argued April 4, 1991.
    Filed Aug. 5, 1991.

      Henry T. Zale, Pottstown, for appellants.
    Thomas X. McAndrew, Jr., Media, for DeFazio, appellee.
    Donald M. Grimes, Media, for Erie Ins., appellee.
    Phillip J. Meyer, Philadelphia, for American Cas., appellee.
    Before WIEAND, OLSZEWSKI and BROSKY, JJ.
   WIEAND, Judge:

This court has been asked to review a declaratory judgment rendered by a trial court in an action to determine which liability insurance carrier or carriers are required to provide a defense and indemnify their insureds following the supplying of wine to a guest who was subsequently involved in a fatal accident. A recitation of the facts and the policy provisions is essential to an understanding of the issues.

Curtis James and Betty Jean James, husband and wife, are the principal stockholders of Curbee, Ltd., the corporation which owns and operates the Black Angus Inn, a restaurant in Chester County. On April 28, 1986, Betty Jean James hosted a luncheon for employees of the Black Angus in appreciation for their work during the Easter holiday. The luncheon was held at an independent establishment known as the Coventry Tea Room, which did not sell alcoholic beverages. Consequently, Mrs. Curtis brought to the luncheon approximately nine (9) bottles of wine from the stock of the Black Angus, a licensed establishment. This wine was served during the luncheon.

Included among the employees who attended the luncheon and drank wine was Thomas Blair. After the luncheon, he went with several other employees to the Flowing Springs Inn, a tavern, where they consumed additional alcohol. After he had left the Flowing Springs Inn and while driving his car, Blair was involved in a collision with a vehicle operated by Douglas Rhubart. Both drivers died as a result of injuries received in the accident. The administratrices of both estates filed death actions in which Curtis and Betty Jean James and the Black Angus Inn were named as defendants.

After the complaint had been served, Curtis and Betty Jean James and Curbee, Ltd. requested St. Paul Fire and Marine Insurance Co. and Erie Insurance to provide a defense pursuant to policies of insurance in effect at the time of the accident. Curtis and Betty Jean James also requested a defense from American Casualty Company under a homeowner’s policy then in effect. When all insurers declined to afford coverage because of various policy exclusions, Curbee, Ltd. and the Jameses commenced declaratory judgment proceedings to determine issues of coverage. The trial court thereafter entered summary judgments in favor of Erie Insurance and American Casualty Co. on the basis of policy exclusions. The exclusion in the Erie policy, which was a general liability policy, pertained to the distribution, selling or serving of alcoholic beverages. The American Casualty policy contained an exclusion pertaining to a “business pursuit” of the homeowners.

A motion for summary judgment is properly granted when “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. 1035(b). In reviewing an order granting summary judgment, an appellate court examines the record in the light most favorable to the non moving party. Laventhol & Horwath v. Dependable Insurance Associates, Inc., 396 Pa.Super. 553, 558, 579 A.2d 388, 390 (1990); Persik v. Nationwide Mutual Insurance Co., 382 Pa.Super. 29, 31, 554 A.2d 930, 931 (1989), allocatur denied, 522 Pa. 613, 563 A.2d 499 (1989); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140-141, 476 A.2d 928, 930 (1984).

The interpretation of an exclusion in a policy of insurance is a question of law for the court. Jefferson v. State Farm Ins., 380 Pa.Super. 167, 170, 551 A.2d 283, 284 (1988); Adelman v. State Farm Mutual Automobile Insurance Co., 255 Pa.Super. 116, 123, 386 A.2d 535, 538 (1978). An interpretation of an exclusion clause must be based on a reading of the policy in its entirety, giving the words thereof their plain and proper meaning. Great American Insurance Co. v. State Farm Mutual Ins. Co., 412 Pa. 538, 194 A.2d 903 (1963); Jefferson v. State Farm Ins., supra; Monti v. Rockwood Ins. Co., 303 Pa.Super. 473, 476, 450 A.2d 24, 25 (1982). The policies should be read to avoid ambiguities, if possible. The language should not be tortured to create an ambiguity. Jefferson v. State Farm Ins., supra; Monti v. Rockwood Insurance Co., supra. A provision is ambiguous only if reasonably intelligent persons, considering it in the light of the entire policy, can honestly differ as to its meaning. A truly ambiguous term must be construed in favor of the insured. Jefferson v. State Farm Ins., supra; Monti v. Rockwood Insurance Co., supra; Adelman v. State Farm Mutual Auto Ins. Co., supra. See also: Celley v. Mutual Benefit Health and Accident Association, 229 Pa.Super. 475, 481-484, 324 A.2d 430, 435 (1974).

We agree with the trial court that there is no ambiguity in the relevant provisions of the policy issued by Erie Insurance. The Erie policy generally provided indemnification “for damages because of personal injury or property damage for which the law holds anyone we protect responsible if caused by an occurrence covered by [the] policy.” Coverage was excluded, however, with respect to

(6) damages for which anyone we protect may be liable
(a) because of the violation of an ordinance or law pertaining to the business of manufacturing, distributing, selling or serving alcoholic beverages. This exclusion (6)(a) applies only when engaged in the business of manufacturing, distributing, selling or serving alcoholic beverages or if an owner or lessor of any such premises.
(b) as a result of the sale, serving or gift of alcoholic beverages to a minor or to a person under the influence of alcohol or which causes or contributes to the intoxication of any person. This exclusion (6)(b) does not apply to an owner or lessor of premises who is not engaged in the business of manufacturing, distributing, selling or serving of alcoholic beverages.

The intent of the parties as disclosed by this standard exclusion is clear. The Erie policy did not provide coverage to a licensee for liability arising, from providing alcohol for consumption. The insureds evidently understood this exclusion because they procured a separate policy from St. Paul Fire and Marine Ins. Co. which specifically covered liability arising from such activity. It is undisputed that the Black Angus was engaged in the business of selling and serving alcohol and that wine from the restaurant’s inventory was consumed by Blair at the luncheon. It is of no consequence, in interpreting the exclusion, that the alcohol provided by appellants was consumed away from the licensed premises or that it was not directly served by an owner or employee of the restaurant. When the restaurant provided the alcohol for consumption the exclusion was triggered. Its effect was to relieve Erie of an obligation to defend or indemnify appellants under the circumstances alleged in the tort action.

The exclusion in the homeowners policy issued by American Casualty Co. is not so clear. The “business pursuits” exclusion therein is as follows:

1. Coverage E—Personal Liability and Coverage F— Medical Payment to Others do not apply to bodily injury or property damage:
b. arising out of business pursuits of any insured or the rental or holding for rental of any part of any premises by any insured.
This exclusion does not apply to:
(1) activities which are ordinarily incident to non-business pursuits.

The trial court concluded that the employee luncheon was a “business pursuit” because it was intended only for employees, was paid for from the restaurant’s budget, and was for the purpose of expressing appreciation to employees in an effort to promote workplace morale and efficiency. The trial court, however, failed to consider all the language of the exclusion which excepts from application of the exclusion those “activities which are ordinarily incident to non-business pursuits.”

The American Casualty policy provides coverage for those activities which, although they occur while the insured is engaged in a business pursuit, are nevertheless “ordinarily incident to a non business pursuit.” The first paragraph of the exclusion removes from coverage those claims for injury or damage which arise from business pursuits. There is an exception, however, with respect to activities which are normally incident to non-business pursuits. Such activities are covered. “Thus, the inquiry is not whether the insured was engaged in a business pursuit, for the [exception] plainly has reference to accidents that occur in the carrying on of the business, [citations omitted]. Rather, it is whether the particular activity at the time of the accident ... was nevertheless one ordinarily incident to nonbusiness pursuits.” New Jersey Property Liability Guaranty Assoc. v. Brown, 174 N.J.Super. 629, 633, 417 A.2d 117, 119 (1980).

... The entire paragraph [the exclusionary clause], therefore, giving to its components their common and ordinary meaning ... may fairly be read as saying that, as a general proposition, there will be no liability coverage with respect to an insured’s “business pursuits,” but that, as an exception to this broad rule, coverage will be extended to liability which arises, even though connected in some causal manner with the insured’s “business purposes,” out of an act or omission that is ordinarily not associated with or related to the insured’s business pursuits. In other words, to give any meaning at all to the excepting clause, the policy must be read to extend coverage to certain acts or omissions which are not, by their very nature, tainted by being associated with an insured's business pursuits, but which, nevertheless, with respect to the insured’s potential liability arising therefrom, may have been causally related to such business pursuits. [280 F.Supp. at 64-65; citation omitted].

Id. at 633-634, 417 A.2d at 119-120, quoting Gulf Insurance Co. v. Tilley, 280 F.Supp. 60, 64-65 (N.D.Ind.1967), aff'd, 393 F.2d 119 (7th Cir.1968). In short, “[t]he policy covers acts, which by their nature, are not associated with the insured’s business pursuits, but which are causally related to the business activities.” State Farm Fire & Cas. Co. v. Moore, 103 Ill.App.3d 250, 259, 58 Ill.Dec. 609, 613, 430 N.E.2d 641, 645 (1981). See also: 7A Appleman, Insurance Law & Practice § 4501.11.

In the instant case, Betty Jean James was unquestionably engaged in a business pursuit when she entertained the restaurant’s employees at a luncheon at the Coventry Tea Room. By entertaining the employees in this manner, however, she was engaged in an activity which was not a normal part of the restaurant business in which she was engaged. Rather, it was an activity ordinarily incident to a social and non-business pursuit. Such an activity was within the exception to the exclusion; and, therefore, coverage was provided.

The declaratory judgment holding that Erie Insurance is not required to provide a defense is affirmed. The declaratory judgment in favor of American Casualty Company, however, is reversed, and that matter is remanded to the trial court for the entry of a judgment declaring that the homeowner’s policy issued by American Casualty provides coverage to Curtis James and Betty Jean James for the occurrence which is the subject of the death actions in which they have been named parties defendant. Jurisdiction is not retained meanwhile.


author: CIRILLO, Judge:

text:
    594 A.2d 737
    Jeremiah ANDERSON and Linda Anderson, his Wife v. CENTENNIAL HOMES, INC., Appellant.
    Superior Court of Pennsylvania.
    Submitted May 9, 1991.
    Filed Aug. 7, 1991.

      Michael R. Mey, Wilkes-Barre, for appellant.
    Steven D. Gladstone, Tannersville, for appellees.
    Before ROWLEY, President Judge, and CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

Centennial Homes, Inc. (“Centennial”) appeals from an order entered in the Monroe County Court of Common Pleas denying its motion to reinstate its appeal and denying its motion to open a default judgment. We affirm.

On July 17,1989, Jeremiah and Linda Anderson filed an action against Centennial before District Justice Charles P. Eyer. In their complaint, the Andersons claimed that Centennial wrongfully removed trees from their property. A hearing was scheduled for September 1, 1989 at which time judgment was entered against Centennial for failure to appear. See Pa.R.C.P.DJ. 319 B. On September 12, 1989, Centennial filed a notice of appeal to the Monroe County Court of Common Pleas. On September 19, 1989, notice of Centennial’s appeal and rule to file complaint was served upon the district justice and the Andersons. It is unclear from the record if proof of service of the copies of the notice of appeal and rule to file complaint was ever filed with the Monroe County Prothonotary. In any event, on October 3,1989, Centennial’s appeal was stricken for failure to comply with Pennsylvania Rule of Civil Procedure for District Justices 1005B. See Pa.R.C.P.DJ. 1006. Centennial thereafter filed a motion to open judgment or reinstate the appeal. The trial court denied both motions and this timely appeal followed. On appeal, Centennial raises the following issue:

Is the Appellant entitled to have the Judgment entered against it opened and/or have its appeal reinstated?

Centennial argues that although it did not technically comply with Pa.R.C.P.DJ. 1005 B, since the Andersons did receive actual notice of Centennial’s appeal to the court of common pleas and because the Andersons suffered no prejudice, its appeal should be reinstated. Centennial reminds us that Pennsylvania Rule of Civil Procedure 126 allows the trial courts to disregard “any defect or rule of procedure which does not affect the substantial rights of the parties.” Pa.R.C.P. 126.

Centennial concedes that it did not comply with Pa.R.C.P.DJ. 1005 B. Namely, Centennial did not file proof of service of copies of its notice of appeal and rule to file a complaint with the prothonotary of Monroe County within five days after filing its notice of appeal. At the Andersons’ request and pursuant to Pa.R.C.P.DJ. 1006, Centennial’s appeal was stricken for failure to comply with rule 1005 B. Pa.R.C.P.DJ. 1006, however, provides that the “court of common pleas may reinstate the appeal upon good cause shown.” Pa.R.C.P.DJ. 1006 (emphasis added). “Good cause” is not defined in the rules governing district justice proceedings. Black’s Law Dictionary defines good cause as a

[substantial reason, one that affords a legal excuse. Legally sufficient ground or reason. Phrase “good cause” depends upon circumstances of individual case, and finding of its existence lies largely in discretion of officer or court to which decision is committed____“Good cause” is a relative and highly abstract term, and its meaning must be determined not only by verbal context of statute in which term is employed but also by context of action and procedures involved in type of case presented—

Black’s Law Dictionary 623 (5th ed. 1979) (emphasis original citations omitted). While the term good cause may be difficult to define, it is clear that Centennial must proffer some legally sufficient reason for the trial court to reinstate its appeal. We also emphasize that the determination of whether good cause has been demonstrated is trusted to the trial court’s sound discretion. See State Farm Insurance Companies v. Swantner, 406 Pa.Super. 235, 594 A.2d 316 (1991) (en banc) (giving trial court’s broad discretion to determine whether good cause has been demonstrated to compel an insured to submit to an independent medical examination). Centennial, however, offered no explanation to the trial court, or to this court, for its failure to file proof of service of copies of its notice of appeal and rule to file complaint within five days after filing its notice of appeal. Clearly, in attempting to demonstrate good cause for reinstating an appeal, Centennial should explain its reasons, if any, for failing to comply with the provisions which caused the appeal to be stricken. Centennial, rather than attempting to explain its reasons for not complying with rule 1005B, merely claims that since it acted as diligently as possible under the circumstances and since the Andersons’ rights were not substantially affected by its noncompliance, its appeal should be reinstated.

Rule 1006 is discretionary with the trial court and is intended to provide sanctions for failing to act within the prescribed time limits of the relevant rules of procedure. Pa.R.C.P.D.J. 1006, note. Pa.R.C.P. 126, which allows the trial court to disregard procedural errors which do not substantially affect the rights of the parties, is likewise discretionary with the trial court. We remind Centennial that while the trial court may ignore procedural noncompliance, it is not required to do so. See Pa.R.C.P. 126. Here, Centennial, without an explanation, failed to comply with rule 1005 B. We find that simply stating that the instant noncompliance did not substantially affect the rights of the Andersons is not alone sufficient to demonstrate good cause to reinstate the appeal. In short, we cannot find that under the circumstances the trial court abused its discretion when it refused to reinstate Centennial’s appeal. Cf. Friedman v. Lubecki, 362 Pa.Super. 499, 524 A.2d 987 (1987) (discussing good cause for failure to comply with Pa.R.C.P.DJ. 1004 A); Quarato v. Facelifters, 305 Pa.Super. 536, 451 A.2d 777 (1982) (appeal reinstated where appellants essentially complied with Pa.R.C.P.D.J. 1005 B, but failed to attach sender’s receipt to affidavit as required by Pa. R.C.P.D.J. 1001). See also 25 Standard Pennsylvania Practice 2d § 130:166 (1984) (“An appeal from a decision of a district justice which has been stricken should be reinstated only under exceptional circumstances”).

Centennial also claims that the trial court erred in refusing to open the default judgment entered by the district justice. This argument, however, is misplaced. A petition to open a default judgment is initially presented to the court which entered the default judgment. See Deviney v. Lynch, 372 Pa. 570, 94 A.2d 578 (1953); Lance v. Mann, 360 Pa. 26, 60 A.2d 35 (1948); see also 12 Standard Pennsylvania Practice § 71:39 (1983) (unless otherwise provided by statute, it is not within the power of one court to open the judgment of another court). As such, a petition to open judgment is an appeal to that court’s equitable powers. Hanna v. Dey Computer Systems, Inc., 386 Pa.Super. 8, 562 A.2d 327, 328 (1989). Here, the default judgment was entered by the district justice when Centennial failed to appear. See Pa.R.C.P.DJ. 319 B. This judgment was appealed to the Monroe County Court of Common Pleas. A properly executed appeal to a court of common pleas permits a de novo proceeding and, unless the judgment is for the possession of real property, operates as an automatic supersedeas. Pa.R.C.P.DJ. 1008, 1008 B. See 25 Standard Pennsylvania Practice § 130:167 (1984). Consequently, it would seem needless to file a petition to open judgment entered by a district justice when an appeal from that judgment to the court of common pleas results in a de novo proceeding that stays the previous judgment.

Moreover, the relevant rules of procedure governing district justice proceedings do not provide for motions to reconsider judgments entered. See Pa.R.C.P.DJ. 1 et seq. Appealing the district justice judgment to the relevant court of common pleas, not asking the district justice to reconsider its ruling, is the proper method of obtaining review of the judgment. Again, since a properly executed appeal from a judgment entered by a district justice results in a de novo proceeding in the court of common pleas, such motions for reconsideration would be superfluous. Clearly, since the case is tried de novo in the court of common pleas, the effect of reinstating Centennial’s appeal to the court of common pleas is to suspend the effect of the default judgment entered by the district justice. See Pa.R.C.P.DJ. 1007.

Unfortunately, Centennial failed to perfect its right to appeal the district justice judgment, and has failed to demonstrate that the trial court abused its discretion in denying its request to reinstate the appeal. Plainly, if the appeal is stricken the district justice judgment remains final. See Pa.R.C.P.D J. 1008 C (“If an appeal is stricken, ... any supersedeas based on it shall terminate”). Further, if the court of common pleas has declined to reinstate Centennial’s appeal, it has no jurisdiction to entertain petitions to open a judgment which it has declined to review. Here, Centennial, in an apparent effort to pursue all possible avenues of relief, simultaneously argued that its appeal should be reinstated and that the judgment should be opened. However, as stated earlier, we find that where the appeal is not reinstated, a petition to open the judgment which was the subject of the attempted appeal, should not, and indeed cannot, properly be entertained.

Order affirmed.

      . Pa.R.C.P.DJ. 1006 provides:
      Upon failure of the appellant to comply with Rule 1004 A or Rule 1005 B, the prothonotary shall, upon praecipe of the appellee, mark the appeal stricken from the record. The court of common pleas may reinstate the appeal upon good cause shown.
      Pa.R.C.P.DJ. 1006 (emphasis added).

      . We note that an order denying a motion to reinstate an appeal is a final order for purposes of appeal. Jay Dee Department Store v. Penn Gas, 362 Pa.Super. 404, 524 A.2d 940 (1987).


author: McEWEN, Judge:

text:
    594 A.2d 741
    ERIE INSURANCE EXCHANGE, Appellee, v. Barry Scott MASON, Sr., Administrator of the Estate of Barry S. Mason, Jr., Deceased, Appellant.
    Superior Court of Pennsylvania.
    Argued April 18, 1991.
    Filed Aug. 8, 1991.

      John R. Gavin, Oil City, for appellant.
    Peter C. Acker, Sharon, for appellee.
    Before McEWEN, DEL SOLE and FORD ELLIOTT, JJ.
   McEWEN, Judge:

Appellant, in this appeal from an order which (1) denied his motion to compel arbitration, and (2) granted the motion of appellee for judgment on the pleadings in this declaratory judgment action, contends that the trial court committed reversible error when it concluded that it, rather than the arbitrators, had jurisdiction to resolve the instant controversy. We agree and, therefore, vacate the order and remand the case.

Appellant’s decedent, Barry Scott Mason, Jr., died as a result of injuries sustained when the motorcycle he was operating was struck by a truck owned by B & S Oil Company and operated by Kenneth Beals. At the time of the accident, Mason’s motorcycle was uninsured. Mason himself, however, was an insured, by virtue of his status as a member of his stepfather’s residence, under two policies of motor vehicle insurance issued by appellee to Donald Bechtel, Mason’s stepfather. The policies issued to Bechtel by appellee each provided for $25,000 in underinsured motorist coverages. Appellant settled the wrongful death and survival actions he had instituted against the owner/operator of the truck for the limits of the applicable liability coverage and then made a claim against Erie for $50,000 in underinsured benefits. Erie refused payment on the basis that the decedent’s failure to insure his motorcycle precluded his recovery of benefits. Appellant, in accordance with the provisions of the policy issued by appellee, designated his arbitrator. Erie appointed an arbitrator but prior to the selection of the neutral arbitrator, filed the instant declaratory judgment action, requesting that the court determine that appellant’s decedent, as the owner of an uninsured motorcycle, was not entitled to recover underinsured motorist benefits. Appellant responded by filing a motion to compel arbitration, citing the language of the policies which provided that “Disagreement over the legal right to recover damages or the amount of damages will be settled by arbitration.” The trial court denied the motion to compel arbitration and granted appellee’s motion for judgment on the pleadings, concluding that appellant’s decedent’s failure to maintain financial responsibility on a registered motorcycle precluded recovery of underinsured motorist benefits.

Appellant contends that his motion to compel arbitration was improperly denied as a result of the trial court’s misapprehension of the rationale of those cases, beginning with Webb v. United Services Automobile Association, 227 Pa.Super. 508, 323 A.2d 737 (1974), which permit a court to exercise its jurisdiction in a coverage dispute otherwise subject to arbitration, “ ‘where the claimant attacks a particular provision of the clause itself as being contrary to a constitutional, legislative, or administrative mandate, or against public policy or unconscionable.’ ” Azpell v. Old Republic Insurance Co., 526 Pa. 179, 183, 584 A.2d 950, 952 (1991), quoting United Services Automobile Association Appeal, supra 227 Pa.Super. at 516, 323 A.2d at 741. We are constrained to agree with appellant that the instant controversy was required to be submitted to the arbitrators.

The trial court in the instant case was not asked to determine, and in fact did not find, that any provision of the policy issued by appellee was contrary to public policy. Rather, the trial court believed it could properly disregard the parties’ contractual agreement to arbitrate based upon its conclusion that an award of underinsured benefits to appellant, under the circumstances of this case, would be contrary to public policy. This reasoning was specifically rejected by our Supreme Court in Azpell:

In this instance, the Superior Court did not find any contract provision contrary to public policy but rather, held that the award itself was contrary to public policy. This result oriented analysis is exactly the type of review the legislature was attempting to avoid by promulgation of the Uniform Arbitration Act.

Azpell v. Old Republic Insurance Co., supra, 526 Pa. at 184, 584 A.2d at 952 (emphasis supplied).

Appellee, the entity which had drafted the contract of insurance at issue, did not base its claim of entitlement to a declaratory judgment on any allegedly unconstitutional or illegal provision in its policy. Rather, it sought a ruling from the trial court that, solely as a result of appellant’s decedent’s failure to insure his motorcycle, appellee was entitled to deny appellant the underinsured benefits to which he would otherwise be entitled. This was a dispute which was clearly encompassed within the arbitration clause.

As our Supreme Court noted in Brennan v. General Accident Fire & Life Assurance Corp. Ltd., 524 Pa. 542, 574 A.2d 580 (1990):

A review of the language of the arbitration clause reveals that arbitration is mandated whenever the insured and the insurer disagree as to when a party is legally entitled to recover damages. There is no limit to the jurisdiction of the arbitrators over what issues may be submitted and in fact the policy declares that all disputes between the insurance company and the insured will be arbitrated. The instant dispute, in its broadest sense, involves a disagreement as to the amount of damages which Appellant would and could possibly receive under the policy. * * * * * *
Given the broad scope of authority given the arbitrators, we have little difficulty in concluding that the dispute herein is a matter specifically within the scope of the arbitration clause.

Brennan v. General Accident Fire & Life Assurance Corp. Ltd., supra, 524 Pa. at 549, 574 A.2d at 583. See also: Lamar v. Colonial Penn Insurance Co., 396 Pa.Super. 527, 530-31, 578 A.2d 1337, 1339 (1990).

The Declaratory Judgment Act expressly provides that a party is not entitled to declaratory relief with respect to any “proceeding within the exclusion jurisdiction of a tribunal other than a court.” 42 Pa.C.S. § 7541(c)(2). This section has been held applicable to arbitration proceedings, precluding Declaratory Judgment actions with respect to matters within the jurisdiction of the arbitrators. See: Jewelcor, Inc. v. Pre-Fab Panelwall, Inc., 397 Pa.Super. 78, 82-83, 579 A.2d 940, 942 (1990), citing Allstate Insurance Co. v. Taylor, 434 Pa. 21, 252 A.2d 618 (1969). See also: Brennan v. General Accident, Fire & Life Assurance Corp., Ltd., supra, (in which the Supreme Court held that once it has been determined that a substantive dispute is subject to arbitration, the arbitration panel normally has the authority to decide all matters necessary to dispose of the claim, unless the parties have expressly restricted the matters to be submitted to arbitration); Nationwide Mutual Insurance Co. v. Pitts, 400 Pa.Super. 269, 271-73, 583 A.2d 489, 491 (1990) (in which this court held that an issue of whether the insurer was contractually bound to provide underinsured motorist coverage was within the jurisdiction of the arbitration panel); and Lamar v. Colonial Penn Insurance Co., supra, 396 Pa.Superior Ct. at 528-31, 578 A.2d at 1338-39 (in which this court held that a question relating to an insured’s intent to select a higher amount of coverage must be submitted to arbitration).

We are, therefore, required to vacate the order which granted the motion of appellee for judgment on the pleadings and denied appellant’s motion to compel arbitration, and remand for the entry of an order by the trial court dismissing the declaratory judgment action and directing the parties to proceed to arbitration pursuant to the terms of the contract of insurance.

Order vacated. Case remanded. Jurisdiction relinquished.

      . Coincidentally, Erie was also the insurer of the tortfeasor.

      . For cases discussing the applicability of this exception see, e.g.: Marroquin v. Mutual Benefit Insurance Co., 404 Pa.Super. 444, 447, 591 A.2d 290, 292 (1991); Kester v. Erie Insurance Exchange, 399 Pa.Super. 206, 208-09, 582 A.2d 17, 19 (1990); Daley Sand v. West American Insurance Co., 387 Pa.Super. 630, 564 A.2d 965, 969 (1989); Johnson v. The Travelers, 348 Pa.Super. 278, 281-83, 502 A.2d 206, 208 (1985); Wilbert v. Harleysville Mutual Insurance Co., 254 Pa.Super. 217, 385 A.2d 987 (1978).

      . See and compare: Nationwide Mutual Insurance Co. v. Hampton, 935 F.2d 578 (3rd Cir.1991) (Plaintiff, a Pennsylvania resident, was injured while operating his uninsured motorcycle which he had registered in Delaware. After the driver of the other vehicle paid the limits of his liability coverage to plaintiff, plaintiff sought $100,000 in underinsured benefits under his father’s policy. The Third Circuit Court of Appeals found that plaintiff, as the owner of an uninsured motorcycle, was barred from recovering underinsured motorists benefits as a result of application of a household exclusion clause contained in the policy. The court, distinguishing Marroquin, found that in light of the public policy expressed in the MVFRL, the clause was not void as contrary to public policy). Henrich v. Harleysville Insurance Co., 403 Pa.Super. 98, 588 A.2d 50 (1991) (Judgment on the pleadings in favor of insurer based upon plaintiffs ownership of an uninsured vehicle, reversed since 75 Pa.C.S. § 1741 precludes owners of registered but uninsured vehicles from recovering only first party benefits. Since underinsured motorist benefits are not first party benefits, section 1741 does not, as a matter of law, preclude plaintiff from obtaining underinsured motorist benefits. Case remanded for further proceedings).