author: HUDOCK, Judge: McEWEN, Judge,

text:
    590 A.2d 310
    COMMONWEALTH of Pennsylvania, Appellee, v. John JAREMA, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 17, 1991.
    Filed April 26, 1991.

      Martha Sperling, Doylestown, for appellant.
    Alan M. Rubenstein, Dist. Atty., Doylestown, for Com., appellee.

      Before McEWEN, KELLY and HUDOCK, JJ.
   HUDOCK, Judge:

Appellant appeals from an order denying his petition to appeal, nunc pro tunc, two summary convictions to the Court of Common Pleas. We reverse and remand.

Each of Appellant’s convictions were for driving a motor vehicle while his operator’s license was under suspension. 75 Pa.C.S.A. § 1543(a). No appeals were taken within thirty days as required by Pa.R.Crim.P. 86. In due time, Appellant received notice from the Pennsylvania Department of Transportation that his operating privileges would be further suspended due to these convictions. He then filed the aforementioned petition, the basis of which was an alleged breakdown in the court’s operations. Specifically, Appellant asserted that the district justice failed to inform him of his right to appeal or the thirty day period within which to do so. A hearing was convened on Appellant’s petition, at which time Appellant testified that he was unrepresented by counsel at his trial before the district justice. Appellant also testified that the district justice did not advise him of his right to appeal for trial de novo. Appellant testified that he first became aware that he might have such a right after receiving notices of suspension from the Department of Transportation which advised him of his right to appeal the Department’s action. Thereafter, Appellant sought legal advice. Following Appellant’s testimony and argument by counsel, the court denied the petition.

In its opinion supporting its order, the court correctly stated the applicable law regarding appeals from summary convictions:

The law is clear that an appeal must be filed within thirty (30) days after entry of the order from which the appeal is taken. That applies to appeals from summary convictions. The only exception is where there are circumstances such as ineffectiveness of counsel, fraud, or a breakdown in the court’s operations. Commonwealth v. Smith, 348 Pa. Superior Ct. [sic] 10, 501 A.2d 273 (1985) and Commonwealth v. Englert, 311 Pa. Superior Ct. [sic] 78, 457 A.2d 121 (1983).

Trial court Opinion, at 2. In applying this standard to Appellant’s asserted basis for relief, the court concluded: “We do not deem this dereliction, even if it occurred, to be either fraud or a breakdown in court operations.” Id. Upon review, we are constrained to find the trial court erred.

The Rules of Criminal Procedure mandate that the issuing authority advise the defendant of his right of appeal and the time within which to exercise that right. Pa. R.Crim.P. 83(e). The Official Comment to the rule indicates the constitutional underpinnings of the paragraph by stating: “Paragraph (e) is included in the rule in light of North v. Russell, 427 U.S. 328[, 96 S.Ct. 2709, 49 L.Ed.2d 534] (1976).” In North v. Russell, the majority “assume[d] that police court judges in Kentucky recognize their obligation to inform all convicted defendants ... of their unconditional right to a trial de novo and of the necessity that an appeal be filed within 30 days in order to implement that right.” Id. at 335, 96 S.Ct. at 2712, citing, Ky.Rule Crim.Proc. 12.04.

In Pennsylvania, appeals from convictions for summary offenses, including motor vehicle violations, are governed by Pa.R.Crim.P. 86. “Rule 86(g) provides that [an appeal to the court of common pleas] is the exclusive means of challenging a summary conviction.” Commonwealth v. Bassion, 390 Pa.Super. 564, 566-68, 568 A.2d 1316, 1318 (1990). (Emphasis in original; footnote omitted.) There are no preconditions or qualifying criteria which must be met before the right to appeal a summary conviction attaches. It is an unqualified right. See, e.g., id., 390 Pa.Superior Ct. at 568-569 n. 3, 568 A.2d at 1318, n. 3 (a right to appeal to the court of common pleas exists even for one who pleads guilty to a summary offense.) Ordinarily, the consequence of failing to file an appeal within the prescribed time period is waiver of all issues which could have been raised in such an appeal. The right to appeal for trial de novo is emasculated if a defendant is not informed of his or her right to appeal and how to perfect such an appeal.

Cases involving Pa.R.Crim.P. 1123, relating to post verdict motions, are instructive since the filing of post verdict motions is the initial step in appellate review. For example, in Commonwealth v. Cruice, 297 Pa.Super. 1, 442 A.2d 1183 (1982), this Court applied Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981) (en banc), and found that the appellant’s appeal would have been barred by his failure to file post verdict motions but for the fact that the trial court failed to inform the appellant of his right to file such motions, the time within which such motions could be filed and the consequences of his failure to file such motions. See also, Commonwealth v. Bradley, 381 Pa.Super. 528, 554 A.2d 127 (1989) (plurality); Commonwealth v. Cox, 319 Pa.Super. 194, 465 A.2d 1296 (1983).

The allowance of an appeal nunc pro tunc lies, in the first instance, in the sound discretion of the court below. Perin v. Gochnauer, 173 Pa.Super. 609, 98 A.2d 755 (1953). See also, Commonwealth, Dept. of Transportation v. Rick, 75 Pa.Cmwlth. 514, 462 A.2d 902 (1983) (orders granting or denying petition to appeal nunc pro tunc are reversible in instances where the court abused its discretion or where the court drew an erroneous legal conclusion.) As the trial court recognized, an appeal from summary conviction must be commenced within thirty days after entry of the order from which the appeal is taken. Commonwealth v. Bassion, supra; Pa.R.Crim.P. 86. Additionally, “judicial extensions of time are specifically prohibited by Section 5504 of the Judicial Code, except to relieve fraud or its equivalent.” Commonwealth v. Liptak, 392 Pa.Super. 468, 472, 573 A.2d 559, 561 (1990), citing, Commonwealth v. Englert, supra.

Where the party seeking leave to appeal nunc pro tunc demonstrates that the delay in ... filing the appeal was precipitated by extraordinary circumstances involving fraud or a wrongful or negligent act of a court official resulting in injury to that party, the court may allow enlargement of the time for appeal or appeal nunc pro tunc.

Commonwealth v. Liptak, 392 Pa.Superior Ct. at 472, 573 A.2d at 561. (Citations omitted.) In Commonwealth v. Bassion, supra, this Court opined “that the giving of incorrect and inaccurate information to an accused by the District Justice or his or her staff may, if established, constitute a breakdown in the court’s operation that warrants the allowance of an appeal, nunc pro tunc.” Id., 390 Pa.Superior Ct. at 570, 568 A.2d at 1319.

Instantly, the court denied Appellant’s petition without deciding whether or not he was fully apprised of his right to appeal. “Clearly, a district justice ... is a ‘court official’ whose fraudulent, wrongful or negligent conduct causing injury to a party would, unquestionably, implicate the integrity of the judicial system. In such a situation, there would be little hesitation to conclude that a breakdown in the court’s operation had occurred.” Id., 392 Pa.Superior Ct. at 473, 573 A.2d at 561. Thus, we conclude that the court erred in deciding it was immaterial whether or not the district justice advised Appellant of his right to appeal the summary convictions for a trial de novo.

Accordingly, we remand to the trial court for a determination of whether the district justice complied with the mandate of Pa.R.Crim.P. 83(e). If the court finds Appellant was not fully advised of his appellate rights as discussed above, it must then determine whether it is appropriate to permit an appeal nunc pro tunc. If the court finds that Appellant was properly and fully advised of his right to appeal by the district justice in compliance with Rule 83(e), the court shall reimpose its order denying Appellant’s petition.

Order reversed. Case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

McEWEN, J., files a dissenting statement.

McEWEN, Judge,

dissenting.

While the opinion of the majority is a compelling expression of view, I am obliged to dissent for I would affirm the order denying the petition of appellant to undertake nunc pro tunc appeal.

      . At the hearing on his petition for permission to appeal nunc pro tunc, Appellant testified that the district justice adjudged him guilty at the conclusion of a hearing on one of the citations. Appellant further testified that he pled guilty to the second citation after being advised to do so by the district justice in an effort to save time since he (the district justice) would find him guilty on the second citation.

      . We repeat the words of caution announced in Commonwealth v. Bassion, supra, that Appellant will be obliged to also prove that [he] acted promptly upon learning of the district justice’s alleged error. See also, Commonwealth v. Liptak, supra.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    590 A.2d 313
    B.O., Appellant, v. C.O., Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 26, 1991.
    Filed April 26, 1991.

      Gregory S. Fox, Public Defender, Ellwood City, for appellee.
    Robert D. Clark, New Castle, for appellant.
    Before DEL SOLE, FORD ELLIOTT and BROSKY, JJ.
   DEL SOLE, Judge:

Brandon was born to B.O., who was unmarried, on January 10, 1989. Subsequently, Appellee here, C.O., signed an acknowledgment of paternity on January 25, 1989, admitting that he was the father of Brandon. He then entered into a support agreement before a domestic relations officer of the Lawrence County Court on June 30, 1989. This agreement subsequently served as the basis of a support order which was entered on July 5, 1989.

Next, on August 15, 1989, C.O. filed a dual pleading entitled Petition for Court Ordered Blood Tests and Petition for Appeal from Agreement for Support. He premised his request for relief upon a statement in the petition in which he relates that “he has cause to believe that he is not the father of Brandon.” However, before the court ruled on this petition and pursuant to a voluntary agreement, B.O., Brandon, and C.O., submitted themselves to genetic testing. The paternity evaluation report concluded that C.O., was excluded as the biological father of Brandon because he lacked the genetic markers, Kidd a and HLA A30, B7 which are present in Brandon, but absent in the mother, B.O. C.O. was also excluded by the Rh and MNSs systems.

It should be noted that C.O. has not established a parental relationship with Brandon. He terminated his association with B.O. prior to Brandon’s birth, and remained out of touch until he was contacted by Domestic Relations to discuss the paternity of the child. He filed his petition just seven months after the birth of the child, and during that time he had little or no contact with either B.O. or Brandon. B.O.’s letters to C.O. entered as exhibits at trial, attest to the fact that C.O. consistently refused to meet with her or visit Brandon after the petition contesting paternity was filed.

C.O. is a man of limited intelligence and scanty education. He only finished the eighth grade in school, and his mother stated at trial that he is not fully able to read and understand items. He did not fill in the answers on the acknowledgment of paternity form himself, the domestic relations officer did it for him, and stated at trial that he could not remember what happened at the meeting at the domestic relations office when the form was signed. His mother has taken care of him for his twenty-six years, and both his mother and B.O. acknowledged at trial that he was easily influenced by others.

The trial court ruled that the support order should be set aside because the original acknowledgment of paternity and the resulting support order were the product of fraud. We affirm this result.

We have stated that an order for support of a child necessarily determines the issue of paternity. Absent an appeal taken directly from that order, or the showing of fraud, the aggrieved party is foreclosed from challenging this determination. Wachter v. Ascero, 379 Pa.Super. 618, 550 A.2d 1019 (1988). It is only when the overriding equities favor the putative father, that we may overturn a duty of support assumed by that parent. See, Commonwealth ex rel. Gonzalez v. Andreas, 245 Pa.Super. 307, 312, 369 A.2d 416 (1976).

It is the settled policy of the law, which looks to the well being of the child, that a parent may not challenge the paternity of a child once the father has acknowledged such paternity. This acknowledgment can be manifested by conduct of the putative father, in assuming the role of father in relationship to the child, Commonwealth ex rel. Coburn v. Coburn, 384 Pa.Super. 295, 558 A.2d 548 (1988), Seger v. Seger, 377 Pa.Super. 391, 547 A.2d 424 (1988), Wachter, supra, and by the formal recognition of his duty to support the child, often through compliance with a court order, such as a support or custody order. Commonwealth ex rel. Palchinski v. Palchinski, 253 Pa.Super. 171, 384 A.2d 1285 (1978); R.J.K. v. B.L., 279 Pa.Super. 71, 420 A.2d 749 (1980); Schultz v. Connelly, 378 Pa.Super. 98, 548 A.2d 294 (1988); Gonzalez, supra. This holds true whether the child was born in or out of wedlock, although in the case of marriage the evidence must also overcome the presumption of legitimacy arising in favor of children born to married women, which is a particularly strong and well-established policy of this Commonwealth. Manfredi Estate, 399 Pa. 285, 289, 159 A.2d 697, 699 (1960), Connell v. Connell, 329 Pa.Super. 1, 6, 477 A.2d 872, 875 (1984); Burston v. Dodson, 257 Pa.Super. 1, 13, 390 A.2d 216, 222 (1978); Commonwealth v. Fletcher, 202 Pa.Super. 65, 195 A.2d 177 (1963).

When an allegation of fraud is injected in a case, the whole tone and tenor of the matter changes. It opens the door to overturning settled issues and policies of the law. See, New York State Electric and Gas v. Westinghouse, 387 Pa.Super. 537, 553, 564 A.2d 919 (1989). Consequently, we must be careful to narrow that opening, carefully scrutinize such claims, and avoid generalized and unsupported allegations. Fraud or intent to defraud must be proved by evidence that is clear, precise and convincing. Snell v. Pennsylvania, 490 Pa. 277, 281, 416 A.2d 468, 470 (1980); Id. We require that fraud be averred with particularity, Pa.R.C.P. 1019(b), recognizing that fraud is a claim that is easily made. Id. This is especially true in cases of this nature, where, as a rule, a father who finds he is not the biological parent of a child he has claimed as his issue will feel he has been manipulated and deceived.

Having said that fraud must be a narrow exception to the settled law of this Commonwealth which supports the finality of an acknowledgment of paternity, we find, in the special circumstances present here, the acknowledgment of paternity by C.O. was a result of fraud as defined in the case law of this Commonwealth.

In the case, Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 108, 464 A.2d 1243 (1983), quoting Scaife Co. v. Rockwell-Standard. Corp., 446 Pa. 280, 285, 285 A.2d 451, 454 (1971), the court held that the elements of fraud are: (1) a misrepresentation, (2) a fraudulent utterance thereof, (3) an intention by the maker that the recipient will thereby be induced to act, (4) justifiable reliance by the recipient upon the misrepresentation, and (5) damage to the recipient as the proximate result. An examination of the elements as they relate to the case sub judice will demonstrate that the support order should be set aside.

The testimony reveals that B.O. falsely represented to C.O. that he was the father of Brandon, and that she had not “slept with anyone else within the last five years.” She repeated this last statement not only in two letters sent to C.O., but at trial, despite the fact that the test results completely excluded C.O. as the father. Therefore, there was a misrepresentation, and the first element is satisfied.

Next we must consider whether B.O. made these representations with the requisite intent or scienter, thus constituting a fraudulent utterance. Our Supreme Court has stated in this regard that, “it is well settled that fraud is proved when it shown that the false representation was made knowingly, or in conscious ignorance of the truth, or recklessly without caring whether it be true or false.” Warren Balderston Co. v. Integrity Trust Co., 314 Pa. 58, 170 A. 282 (1934), quoted in, Delahanty, supra, 318 Pa.Super. at 108, 464 A.2d 1243.

We can not say that B.O.’s representation that C.O. was Brandon’s father, was made knowingly or in conscious ignorance of the truth. Prior to Brandon’s conception, B.O. was engaging in sexual relations with C.O., and thus we cannot conclude that she knew he was not the father at the time she made the representations concerning his paternity. However, as much can not be said of her second statement. Short of her having an inability to recall having had sexual intercourse with a man during the period of conception, of which there is no evidence or allegation, she must have known that her representation that she had been faithful to C.O. for five years prior to conception was false. Thus we find that B.O. uttered a fraudulent statement when she claimed such faithfulness, thus satisfying the second element of this analysis.

Next, we find that Appellant intended that this misrepresentation would cause C.O. to acknowledge paternity, thereby inducing him to stay with her and live as a family. The letters and trial testimony clearly show that Appellant wanted C.O. to marry her and live with her, and she wanted him very much to acknowledge and support her baby. There can be no question that the misrepresentations were made as an inducement for him to acknowledge Brandon as his son, and assume his financial obligation to support him.

Next we must determine if C.O. justifiably relied on Appellant’s misrepresentations. Relative to this issue the Pennsylvania Supreme Court has held that the character, intelligence, experience, age and mental and physical condition of the parties must be considered. Emery v. Third National Bank of Pittsburgh, 314 Pa. 544, 547, 171 A. 881 (1934). Cf., Beeman v. Calvert Fire Insurance Co., 173 Pa.Super. 20, 94 A.2d 90 (1953), (a release was declared fraudulent in the context of the Appellant’s physical and mental condition, where the adjuster approached the victim of the accident to sign a release just three days after he had been released from the hospital and while he was still incapacitated); In Accord, Siskin v. Cohen, 363 Pa. 580, 584, 70 A.2d 293 (1950), (recission of a contract for purchase of a bar was granted on the basis of fraud; purchaser was unfamiliar with the business and was working under the “handicap of inexperience.”)

In this case, the record shows that C.O. was a man of limited intelligence and limited experience in the world. He always lived with his mother who took care of him, and had never before had a serious girlfriend. He was also known to be subject to the influence of others, and overly trusting. It would not be reasonable to expect C.O. to question Appellant’s representations concerning his paternity. When the means of obtaining information is not equal between the parties involved, either through lack of access to such information or because of the physical or mental incapacity of the party relying on the misrepresentations, such investigation is not required. Siskin v. Cohen, supra., 70 A.2d at 295. Here, Appellant’s access to the information concerning whom she was having sexual relations with and whether she was faithful to C.O. was far greater than C.O.’s. Furthermore, C.O.’s emotional and mental capacity to assess Appellant’s representations was limited. Thus, we hold that his reliance on Appellant’s misrepresentations when he acknowledged paternity was reasonable. (Cf., Gonzalez v. Andreas, supra., 245 Pa.Super. at 313, 369 A.2d 416, where Appellant, of normal intelligence and experience, knew that his wife had previously borne two illegitimate children. He, therefore, did not reasonably rely on her representations when he had both sufficient capacity and reason to question the paternity of the child before he decided to acknowledge paternity.)

Finally, we find that C.O. suffered damages as a proximate result of his reliance on Appellant’s misrepresentations. The damages are evident, as he committed himself to provide support payments for a period that could exceed eighteen years, even though he is not the father. Therefore, we find that C.O.’s acknowledgment of paternity was a result of fraud.

Apart from the inequity of fraudulent misrepresentation, the equitable considerations in this case overwhelmingly favor the father. In the cases in which this court has refused to reopen the question of paternity, even when such biological paternity was ruled out, the child was already several years old and the putative father was known to the child as a parent. Wachter, supra.; Coburn, supra.; Gonzalez, supra. We have said that parental relationships can be established constructively, and that such relationships and the duties associated with these relationships merit judicial recognition and enforcement, even if there is no biological relationship. Wachter, supra, 379 Pa.Super. at 622, 550 A.2d 1019. Further, Judge Spaeth has stated in his concurrence to Gonzalez, supra, 245 Pa.Super. at 320, 369 A.2d 416, “that a supposed parent should not indefinitely be permitted to upset a child’s settled sense of family.” But here the child has had no settled sense of family. Paternity proceedings were started when the child was seven months old. Brandon has never known C.O. as his father, as he has never been present in the mother’s home where any such relationship might have been established.

Given that there will be no disruption of the child’s sense of family, as none was ever established, and given that we have found that Appellant’s acknowledgment of paternity was induced by fraudulent misrepresentations, we affirm the order of the trial court vacating the order for support entered against C.O. Jurisdiction relinquished.

      . Although, this analysis has been used frequently in cases in which fraud is alleged, see, Westinghouse, supra., 387 Pa.Super. at 554, 564 A.2d 919; Silverman v. Bell Savings and Loan Association, 367 Pa.Super. 464, 470, 533 A.2d 110 (1987); Woodward v. Dietrich, 378 Pa.Super. 111, 124, 548 A.2d 301 (1988), the second element of this test, "a fraudulent utterance thereof,” presents certain problems. It uses the word fraudulent as part of its definition of fraud. This circular reasoning is equivalent to providing a definition for defamation as a statement which is defamatory.
      However, we will treat this second element of the Delahanty analysis as referring to the intent or scienter required for an utterance to be considered fraudulent. This intent has been characterized as knowing or reckless, and applies when the maker of the utterance knows or believes that the matter is not as he or she represents it to be, does not have the confidence in the accuracy of the representation that is stated or implied, or knows that there is not the basis for the representation that is . stated or implied. Restatement of Torts 2d, Section 526; Woodward, supra., 378 Pa.Super. at 126, n. 5, 548 A.2d 301.


author: HOFFMAN, Judge: BECK, Judge,

text:
    590 A.2d 317
    Deborah S. DERMAN, Co-Executrix of the Estates of Bernard and Beverly Derman, Deceased and Benjamin Solin, Executor of the Estates of Marvin and Sophia Meyer, Deceased, Appellants, v. WILAIR SERVICES, INC.
    Superior Court of Pennsylvania.
    Argued March 5, 1991.
    Filed April 26, 1991.

      Arthur A. Wolk, Philadelphia, for appellants.
    Mary B. Stein, Philadelphia, for appellee.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from a July 30, 1990 order sustaining the preliminary objections of appellee, Wilair Services Inc. (“Wilair”), and dismissing appellants’ complaint for lack of jurisdiction. Appellants, Deborah Derman and Benjamin Solin, argue that the court erred in sustaining appellee’s preliminary objections because (1) appellee has sufficient minimum contacts with Pennsylvania; and (2) appellee conducted an ongoing and systematic course of business in Pennsylvania. We affirm.

The facts underlying this appeal, summarized by the trial court, are as follows.

On March 23, 1988, Flying Musketeers of Rochester, Inc. purchased a Beechcraft C24R Sierra single engine aircraft. Flying Musketeers, Inc., is partially owned by Plaintiffs’ decedents, Bernard Derman and Marvin Meyer. The Defendant, Wilair Services, Inc., (“Wilair”) is an aviation fixed base operator which provides maintenance and ground services to aircraft. Wilair’s only facility is in Rochester, New York.
Prior to the purchase of the aircraft, Beechcraft issued Service Bulletin 2217 requiring the replacement of the auxiliary fuel pump due to deterioration of certain carbon vanes that could clog the aircraft fuel system. The fuel pump was to be replaced within twenty five flight hours. Plaintiffs’ decedents were unaware of this service bulletin.

Following the purchase, Plaintiffs’ decedents experienced power losses and engine roughness in the aircraft on at least four occasions. They brought these problems to the attention of Wilair after each such occurrence. Wilair performed maintenance on the aircraft on such occasions including the cleaning of foreign materials from various engine and fuel system components. All such work was performed exclusively at Wilair’s facility in Rochester, New York.

Plaintiffs alleged that Wilair knew of the service bulletin and yet that Wilair never alerted Plaintiffs’ decedents of [sic] the service bulletin and never repaired the auxiliary fuel pump. Plaintiffs further alleged that it was precisely the same auxiliary fuel pump problem of which the service bulletin warned that caused the fatal crash of the aircraft.

That crash occurred on October 20, 1988 as the aircraft was nearing the completion of a flight from Rochester, New York to Wings Field in Blue Bell, Montgomery County. As Plaintiff Deborah Derman, the daughter of Plaintiffs’ decedents, waited for Plaintiffs’ decedents to land at Wings Field, the aircraft suffered an alleged partial or complete engine failure. Plaintiffs alleged that this failure was the result of clogging and restriction of fuel flow by foreign materials migrating from the auxiliary fuel pump. Plaintiffs further allege that these factors caused the plane to crash on a field near the airport at Wings Field and that such factors were created by the negligence of Wilair. All four persons on board the plane burned to death in the post impact fire. Plaintiffs’ complaint was filed on May 11, 1989, setting forth causes of action based on defendant’s false representations, negligence, and breach of warranty, as well as a claim for punitive damages based on defendant’s willful, wanton, and grossly negligent misconduct. Defendant subsequently filed preliminary objections to Plaintiffs’ complaint, contending that this Court lacks personal jurisdiction over it.

Trial Court Opinion, October 2, 1990 at 2-3. Appellee’s preliminary objections were filed on June 23, 1989, and appellants filed their response to those objections on July 13, 1989. On July 30, 1989, the trial court granted appellee’s preliminary objections. This timely appeal followed.

On appeal, appellants argue that the trial court erred in sustaining appellee’s preliminary objections because Pennsylvania courts may properly exercise personal jurisdiction over appellee. Our standard of review of the granting of preliminary objections is well-settled:

When preliminary objections, if sustained, would result in the dismissal of an action, such objections should be sustained only in cases which are clear and free from doubt____ Moreover, when deciding a motion to dismiss for lack of personal jurisdiction, the court must consider the evidence in the light most favorable to the non-moving party.

Kenneth H. Oaks, Ltd. v. Josephson, 390 Pa.Super. 103, 105, 568 A.2d 215, 216 (1989) (citations omitted); see also Delaware Valley Underwriting v. Williams & Sapp, 359 Pa.Super. 368, 373, 518 A.2d 1280, 1282 (1986). We also note that, once the defendant properly raises the issue of jurisdiction, the plaintiff has the burden of proving that jurisdiction is proper. Whalen v. Disney World Co., 274 Pa.Super 246, 252 n. 3, 418 A.2d 389, 392 n. 3 (1980).

Specifically, appellants argue that appellee has sufficient minimum contacts with Pennsylvania to allow the Commonwealth’s courts to properly exercise jurisdiction under the Long Arm Statute, 42 Pa.C.S.A. § 5322 et seq. Alternatively, appellants argue that jurisdiction is proper because appellee has conducted a “continuous and systematic” part of its business in Pennsylvania in accordance with the “general jurisdiction” provision contained in 42 Pa.C.S.A. § 5301. Before we evaluate the merits of appellant’s claims, we should clearly delineate the circumstances under which each of these jurisdictional provisions apply.

I. BASES FOR PERSONAL JURISDICTION

There are two types of personal jurisdiction that Pennsylvania courts may exercise over out-of-state defendants:

Jurisdiction over a non-resident defendant may be based either upon the specific acts of the defendant which gave rise to the cause of action, or upon the defendant’s general activity within the forum state. In order for a Pennsylvania court to assert specific jurisdiction, the cause of action must arise out of the defendant’s activities within the Commonwealth. General jurisdiction, on the other hand, exists regardless of whether the cause of action is related to the defendant’s activities in this Commonwealth as long as the defendant’s activities are “continuous and substantial.”

Skinner v. Flymo, 351 Pa.Super. 234, 239, 505 A.2d 616, 619 (1986) (emphasis in original) (citations omitted). We shall discuss these bases for jurisdiction, seriatim.

A. In Personam Jurisdiction and 42 Pa.C.S.A. § 5322

Specific or in personam jurisdiction over non-resident defendants alleged to have caused injuries to persons in Pennsylvania is conferred upon Pennsylvania courts by the provisions of the Long Arm Statute. Generally speaking, the Long Arm Statute gives Pennsylvania courts the authority to exercise in personam jurisdiction over nonresident defendants based on the defendant’s specific acts within the Commonwealth which gave rise to the cause of action. See Skinner v. Flymo, supra. The section of the Long Arm Statute which appellant claims is applicable to this case is 42 Pa.C.S.A. § 5322(a)(4), which provides that:

(a) General Rule.—A tribunal of this Commonwealth may exercise personal jurisdiction over a person (or the personal representative of a deceased individual who would be subject to jurisdiction under this subsection if not deceased) who acts directly or by an agent, as to a cause of action or other matter arising from such person:
(4) Causing harm or tortious injury in this Commonwealth by an act or omission outside this Commonwealth.

Id. Satisfaction of the provisions of the Long Arm Statute alone is not sufficient to allow Pennsylvania courts to exercise jurisdiction over non-resident defendants, however. Appellants must also show that our courts’ exercise of jurisdiction under the Long Arm Statute conforms with federal Constitutional requirements of due process. See 42 Pa.C.S.A. § 5322(b). Section 5322(b) provides:

In addition to the provisions of subsection (a) the jurisdiction of the tribunals of this Commonwealth shall extend to all persons who are not within the scope of section 5301 (relating to persons) to the fullest extent allowed under the Constitution of the United States and may be based on the most minimum contact with this Commonwealth allowed under the Constitution of the United States.

Id. See Hewitt v. Eichelman’s Subaru, Inc., 341 Pa.Super. 589, 592, 492 A.2d 23, 24 (1985) (court’s power to exercise in personam jurisdiction over non-resident defendant turns upon two considerations: (1) jurisdiction must be conferred by state long-arm statute, and, (2) the exercise of jurisdiction under statute must meet constitutional standards of due process); see also Kenny v. Alexson, 495 Pa. 107, 117, 432 A.2d 974, 980 (1981). The Due Process Clause of the fourteenth Amendment of the United States Constitution permits personal jurisdiction over a defendant in any state with which the defendant has certain minimum contacts such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). This minimum contacts analysis is the controlling consideration in determining whether our courts may properly exercise jurisdiction over a non-resident defendant. Kenny v. Alexson, supra (citing McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957)). A discussion of the standard Pennsylvania courts apply in determining whether the requisite minimum contacts exist follows.

THE UNITED FARM TEST

The most recent expression of our Supreme Court concerning the level of minimum contacts necessary to support an exercise of in personam jurisdiction is contained in United Farm Bureau Mut. Ins. Co. v. United States Fidelity and Guar. Co., 501 Pa. 646, 462 A.2d 1300 (1983). In United Farm, six justices of our Supreme Court employed a flexible approach to resolving the question of whether sufficient minimum contacts exist to satisfy the Due Process Clause. The lead opinion, authored by JUSTICE HUTCHINSON, described the test as follows:

[T]he “minimum contacts" test is the measure of “all assertions of state-court jurisdiction." [Shaffer v. Heitner ] 433 U.S. at [186] 212, 97 S.Ct. [2569] at 2581 [53 L.Ed.2d 683 (1977) ]. Those “minimum contacts" involve the connections between the defendant, the forum and the litigation. Id. at 207, 97 S.Ct. at 2581.
World Wide Volkswagen [v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) ] clarified the policy concerns which underlie the “minimum contacts" test:
It protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to insure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.
444 U.S. at 292, 100 S.Ct. at 564. The concern for preventing inconvenient litigation, referred to in terms of “reasonableness” or “fairness,” requires that the
defendant’s contacts with the forum State be such that maintenance of the suit “does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, supra. [326 U.S.] at 316 [66 S.Ct. at 158] quoting Milliken v. Meyer, 311 U.S. 457, 463 [61 S.Ct. 339, 342, 85 L.Ed. 278 (1940) ].

501 Pa. at 655-656, 462 A.2d at 1305. On the question of foreseeability, the lead opinion further noted that:

World Wide Volkswagen, while recognizing the relevance of foreseeability of suit by aggrieved parties in the forum state as a factor in due process analysis, reiterated that foreseeability alone has never been a sufficient benchmark for personal jurisdiction, and that the required foreseeability is
not the mere likelihood that a product will find its way to a forum State. Rather it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.
444 U.S. at 297, 100 S.Ct. at 567. This “foreseeability” relates to a corporation’s “purposefully availing itself of the privilege of conducting activities within the forum state,” Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958) so that a defendant has “clear notice that it is subject to suit there” and can “structure [its] primary conduct with some minimum assurance as to where that conduct will and will not render it liable to suit.” 444 U.S. at 297, 100 S.Ct. at 567.

Id. 501 Pa. at 657, 462 A.2d at 1305. Finally, the lead opinion noted that:

This minimum contacts analysis “is not susceptible of mechanical application, [but requires that] the facts of each case must be weighed to determine whether the requisite ‘affiliating circumstances’ are present.” Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978).

Id. 501 Pa. at 658, 462 A.2d at 1306. Thus, a determination of whether the Commonwealth’s exercise of jurisdiction comports with due process involves examining the connection between the defendant, the forum and the litigation. This examination is conducted in order to (1) determine whether the exercise of jurisdiction would subject the defendant to the burden of litigating in a distant or inconvenient forum, and (2) insure that the Commonwealth does not reach out beyond the limits imposed on it as a coequal sovereign in a federal system.

This analysis requires us to evaluate the defendant’s relationship with the Commonwealth in order to determine whether he purposefully availed himself of the privilege of conducting business within the Commonwealth. If, based on that evaluation, it appears that the defendant should have reasonably anticipated being haled into court here, then we may properly exercise jurisdiction if that exercise is in keeping with notions of fair play and substantial justice. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Skinner v. Flymo, Inc., 351 Pa.Super. 234, 505 A.2d 616 (1986).

Our opinion in Skinner v. Flymo, Inc., supra, also provides insight into the level of contact between a defendant and the Commonwealth necessary to support an exercise of jurisdiction:

[T]he Supreme Court [of the United States] has provided some broad guidelines which may be applied on a case by case basis to determine the sufficiency of a defendant’s contacts with the forum state.
Random, fortuitous or attenuated contacts between a defendant and the forum state will not support an exercise of jurisdiction. [Burger King Corp. v. Rudzewicz ] [471 U.S. at 475], 105 S.Ct. at 2183, 85 L.Ed.2d at 542; Keeton v. Hustler Magazine, Inc., supra, 465 U.S. [770] at 774, 104 S.Ct. [1473] at 1478, 79 L.Ed.2d [790] at 797 [(1984) ]; World Wide Volkswagen Corp. v. Woodson, supra, 444 U.S. at 299, 100 S.Ct. at 568, 62 L.Ed.2d at 502. Jurisdiction is only proper “where the contacts proximately result from action by the defendant himself which create a ‘substantial connection’ with the forum state.” Burger King Corp. v. Rudzewicz, supra, 471 U.S. at 475, 105 S.Ct. at 2184, 85 L.Ed.2d at 542 (emphasis in original). See: McGee v. International Life Insurance Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223, 226 (1957). Unilateral activity in the forum state by others having a relationship with a nonresident defendant cannot satisfy the requirement that a defendant have minimum contacts with a forum state. Burger King Corp. v. Rudzewicz, supra, 471 U.S. at 475, 105 S.Ct. at 2183, 85 L.Ed.2d at 542; Helicopteros Nacionales de Columbia [Colombia], S.A. v. Hall, supra, 466 U.S. [408] at 416-17, 104 S.Ct. [1868] at 1873, 80 L.Ed.2d [404] at 412 [(1984) ] World Wide Volkswagen Corp. v. Woodson, supra, 444 U.S. at 298, 100 S.Ct. at 567, 62 L.Ed.2d at 502; Slota v. Moorings, Ltd., supra. 343 U.S. [Pa.Super. 96] at 102-03, [sic] 494 A.2d [1] at 4. [(1985)].

Id. 351 Pa.Super. at 241-242, 505 A.2d at 620 (emphasis in original). See also United Farm, supra (insufficient contacts for in personam jurisdiction where defendant had no formal contacts with Pennsylvania); Kenny v. Alexson, 495 Pa. 107, 432 A.2d 974 (1981) (acceptance of check drawn on out-of-state bank insufficient to constitute minimum contacts with that state to support exercise of in personam jurisdiction); Slota v. Moorings, Ltd., 343 Pa.Super. 96, 494 A.2d 1 (1985) (insufficient contacts for in personam jurisdiction where defendant employed no agents residing or performing services in Pennsylvania, defendant never purchased advertising in Pennsylvania, defendant’s promotional materials appeared only in national publications, defendant’s only place of business was outside of Pennsylvania, defendant was neither registered nor licensed to do business in Pennsylvania, defendant never maintained bank account in Pennsylvania and defendant never entered into contract requiring performance in Pennsylvania); Jacobs v. Lakewood Aircraft Serv., Inc., 493 F.Supp. 46 (E.D.Pa. 1980) (insufficient contacts for in personam jurisdiction where defendant aircraft maintenance company’s only connection with aircraft was in New Jersey, defendant had only advertised once in Pennsylvania, and defendant did only small amount (less than 2.5%) of its total business with Pennsylvania residents).

B. General Jurisdiction and § 5301

If in personam jurisdiction does not exist, Pennsylvania courts may still exercise general personal jurisdiction over non-resident defendants. In contrast to traditional in personam jurisdiction analysis, general personal jurisdiction is based upon the defendant’s general activity within the forum state. See Skinner v. Flymo, supra 351 Pa.Super. at 239, 505 A.2d at 619. Authority to exercise general jurisdiction over non-resident defendants is conferred upon Pennsylvania courts by 42 Pa.C.S.A. § 5301, which provides, in relevant part:

The existence of any of the following relationships between a person and this Commonwealth shall constitute a sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to exercise general personal jurisdiction over such person, or his personal representative in the case of an individual, and to enable such tribunals to render personal orders against such person or representative:
******
(2) Corporations.—
******
(iii) The carrying on of a continuous or systematic part of its general business within this Commonwealth.

Id. General jurisdiction exists regardless of whether the cause of action is related to the defendant’s activities in Pennsylvania, as long as the defendant’s activities are “continuous and substantial.” Bork v. Mills, 458 Pa. 228, 231-232, 329 A.2d 247, 249 (1974); Skinner v. Flymo, Inc., supra 351 Pa.Super. at 239, 505 A.2d at 619; see also Slota v. Moorings, Ltd., supra; Whalen v. Walt Disney World, supra. Although there is no statutory framework by which courts may determine whether a non-resident corporate defendant has conducted a “continuous and systematic” part of its business in the Commonwealth, we note that Pennsylvania courts have identified some situations that failed to meet the standards of Section 5301(a)(2)(ii). See Bork v. Mills, supra (facts insufficient to support exercise of jurisdiction where appellant failed to allege that appellee’s business activities in Pennsylvania were “continuous and substantial”); Kenny v. Alexson Equipment Co., supra (no “continuous and substantial” contact with Commonwealth where defendant’s product was transported to Pennsylvania eleven months after sale and defendant received check drawn on Pennsylvania bank); Skinner v. Flymo, Inc., supra (no “continuous and substantial” business connection with Pennsylvania where defendant not incorporated in Pennsylvania, defendant incurred no taxes in Pennsylvania, defendant did not advertise or maintain offices in Pennsylvania, defendant had no officers or employees in Pennsylvania); Slota v. Moorings, supra (no “continuous and substantial” business contact with Pennsylvania where defendant employed no agents in Pennsylvania, had no mailing address, bank account or telephone listing in Pennsylvania, did no advertising or solicitation in Pennsylvania, defendant’s only advertising appeared in national publications, and defendant was neither assessed nor paid tax in Pennsylvania); Renold Power Transmission v. Cunningham Bearing, 640 F.Supp. 24 (M.D.Pa.1985) (no “continuous and systematic” contact with Pennsylvania where defendant did not earn significant part of its revenues from dealings in Pennsylvania, defendant did not advertise extensively in Pennsylvania and defendant did not regularly solicit business in Pennsylvania).

With the above-mentioned standards in mind, we turn to an evaluation of appellants’ claims.

II. APPELLANTS’ CLAIMS

A. In Personam Jurisdiction.

Appellants first argue that the trial court erred in sustaining appellee’s preliminary objections because appellee has sufficient minimum contacts with Pennsylvania to allow this Commonwealth’s courts to properly exercise in personam jurisdiction under the Long Arm Statute. We cannot agree.

The record reveals the following facts. The aircraft which crashed was owned by decedents, who were residents of New York. See R.R. at 3a. Appellee is incorporated in New York State. Id. at 174a-176a. Appellee’s offices are located in Rochester, New York. Id. at 177a. The allegedly negligent maintenance was performed at appellee’s maintenance facility, which is located in New York State. See R.R. at 229a-234a. Furthermore, although appellee has sent its employees to perform work in Pennsylvania on two occasions, id. at 133a-134a, 313a-314a, appellee has no employees who reside or are based in Pennsylvania. Id. at 180a. Appellee neither advertises in Pennsylvania nor maintains a mailing address or telephone listing in Pennsylvania. Id. at 178a, 179-180a. Appellee has no bank accounts in Pennsylvania. Id. at 181a. Appellee’s only advertisements appear in a national publication, the World Aviation Directory. Id. at 178a, 319a. Appellee does a small portion of its total business (approximately 1.5%) with residents of Pennsylvania, id. at 162a, and has sent billings to those customers. See Lower Court Opinion at 4. The record also shows that only approximately .296% of the money appellee has paid vendors for parts since it began transacting business in January of 1987 was paid to Pennsylvania vendors. See R.R. at 162a.

Even viewed in the light most favorable to appellants, these tenuous contacts convince us that appellee has not purposefully availed itself of the privilege of conducting business in the Commonwealth of Pennsylvania. Thus, appellee could not have reasonably anticipated being haled into Pennsylvania court, and our courts may not exercise in personam jurisdiction over appellee under 42 Pa.C.S.A. § 5322. See United Farm Bureau Mut. Ins. Co. v. United States Fidelity and Guar. Co., supra; Kenny v. Alexson, supra; Skinner v. Flymo, Inc., supra; Slota v. Moorings, Ltd., supra; Jacobs v. Lakewood Aircraft Serv., Inc., supra.

B. General Jurisdiction.

Appellants also argue that general jurisdiction is proper because appellee has conducted a “continuous and systematic” part of its business in Pennsylvania in accordance with 42 Pa.C.S.A. § 5301. However, as noted above, appellee’s contacts with Pennsylvania are minimal. Appellee is not incorporated in Pennsylvania, has not advertised in Pennsylvania, maintains no offices in Pennsylvania, and has paid no taxes in Pennsylvania. Appellee’s only contact with Pennsylvania is the small amount of business it does with Pennsylvania residents. Thus, appellee’s contact with Pennsylvania cannot be said to be “continuous and substantial” for purposes of 42 Pa.C.S.A. § 5301(a)(2)(iii), and Pennsylvania courts may not exercise general jurisdiction over appellee. See Bork v. Mills, supra; Kenny v. Alexson Equip. Co., supra; Skinner v. Flymo, Inc., supra; Slota v. Moorings, supra.

In summary, we conclude that Pennsylvania courts are without the authority to exercise in personam or general jurisdiction over appellee. Thus, the trial court did not err in sustaining appellee’s preliminary objections. See Kenneth H. Oaks, Ltd. v. Josephson, supra.

For the foregoing reasons, we affirm the order below.

Order affirmed.

BECK, J., joins and files a Concurring Statement.

BECK, Judge,

concurring:

I join in Judge Hoffman’s Opinion which completely addresses the issues raised in this case. I also note that I still conclude the Pennsylvania Supreme Court has not renounced the three-pronged jurisdictional analysis enunciated in Proctor & Schwartz, Inc. v. Cleveland Lumber Co., 228 Pa.Super. 12, 19, 323 A.2d 11, 15 (1974). See Eastern Continuous Forms v. Island Business Forms, 355 Pa.Super. 352, 513 A.2d 466 (1986) (Beck, J., concurring).

      . Prior to the United Farm decision, in response to Pennsylvania’s enactment of the original Long Arm Statute in 1973, this Court had adopted a three-pronged test for determining whether minimum contacts exist. In Proctor & Schwartz, Inc. v. Cleveland Lumber Co., 228 Pa.Super. 12, 323 A.2d 11 (1974), we noted:
      First, the defendant must have purposefully availed itself of the privilege of acting within the forum state thus invoking the benefits and protections of its laws____ Secondly, the cause of action must arise from defendant’s activities within the forum state____ Lastly, the acts of the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over it reasonable.

        Id., 228 Pa.Superior Ct. at 19, 323 A.2d at 15. However, in United Farm, only JUSTICE (now CHIEF JUSTICE) NIX, in a separate concurring opinion, stated that he would use the three pronged test.

      . The lead opinion was authored by JUSTICE HUTCHINSON, and joined in by JUSTICES ROBERTS and FLAHERTY. As noted in footnote 1, supra, JUSTICE (now CHIEF JUSTICE) NIX filed a concurring opinion restating his view that Pennsylvania courts should go on using the three-pronged test. JUSTICE McDERMOTT, joined by JUSTICE LARSEN and JUSTICE ZAPALA, dissented. The dissent stated that it would "take a broader view of the concept of in personam jurisdiction and focus not merely on “contacts, but on whether the particular exercise of jurisdiction offends ‘traditional notions of fair play and substantial justice.’ ” United Farm, supra, 501 Pa. at 661, 462 A.2d at 1308. The dissent would apply a broader reasonableness test than the majority in determining whether jurisdiction is proper. It therefore appears that six of the seven United Farm Justices would employ a reasonableness test in evaluating questions of personal jurisdiction. Cf. Skinner v. Flymo, supra, 351 Pa.Super. at 241 n. 1, 505 A.2d at 620 n. 1.

      . Although the "continuous and substantial” language of Bork and its progeny deviates slightly from the “continuous and systematic” language of the statute, there is no conflict between the cases and the statute, which express the same concept. Gulentz v. Fosdick, 320 Pa.Super. 38, 48, 466 A.2d 1049, 1054 (1983).


author:
HESTER, Judge:
      MONTEMURO, Judge,

text:
    590 A.2d 325
    COMMONWEALTH of Pennsylvania v. Jose HERNANDEZ, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 8, 1991.
    Filed April 29, 1991.

      Joseph J. Marinaro, Philadelphia, for appellant.
    Kathy Echternach, Philadelphia, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before WIEAND, MONTEMURO and HESTER, JJ.
   HESTER, Judge:

Jose Hernandez appeals the January 25, 1990 judgment of sentence of two consecutive terms of life imprisonment imposed following his jury conviction of the first degree murders of four members of his family. Appellant raises numerous allegations of error by the trial court and argues that they require the grant of a new trial. We disagree; accordingly, we affirm the judgment of sentence imposed by the trial court.

The record reveals the following. Appellant’s next door neighbor, Jerome Moses, testified that on March 14, 1988, he heard loud scuffling noises between 4:00 and 6:00 a.m. in the Hernandez apartment. As these noises continued, he heard Carmen Hernandez, appellant’s stepmother, say three times, “I love you.” He then heard three or four popping noises that sounded like a cap gun. Subsequently, Mr. Moses did not hear any more voices, but he did hear dragging sounds and noises resembling objects being replaced. He then heard somebody leave the apartment. When he looked out of the window, he saw one man get into the Hernandez family van. Mr. Moses originally thought that the man was appellant’s father, since the individual was wearing Mr. Hernandez’s jacket and since only the father drove the van. Once he learned that the father was dead, the witness then concluded that the man must have been appellant.

During the next week, friends, neighbors, and relatives became concerned about the Hernandez family since they had not been seen and since both of their vehicles were not in their normal parking places. Telephone calls to the apartment were not answered. Meanwhile, appellant decided to stay at his girlfriend’s house, and he told her mother that he was alone since his family suddenly left without telling him or taking him with them. However, the family had not told anyone about these travel plans. Appellant attended school regularly during the week, took his girlfriend on a shopping spree, and moved a VCR and other valuable items out of his family’s apartment and into his girlfriend’s house. His girlfriend commented on numerous deep scratches on appellant’s chest which he explained had been inflicted during a recent robbery.

Eventually, appellant was questioned in school by his parent’s friends and relatives concerning his family’s whereabouts. He escorted them back to the apartment and allowed them to enter. When asked about blood stains on the sofa, appellant replied that the stains were Carmen’s blood. When questioned about why the bathroom door was locked, the fan on, and a towel under the door, he had no explanation. Appellant fled when the bathroom door was broken down and the bodies of his father, stepmother, and two younger brothers were found in the bathtub. The bodies were encased in plastic bags and covered with towels. It was determined that both parents had been shot in the back of the head, one brother had been asphyxiated with a plastic bag over his head, and another brother had his skull crushed.

Appellant fled Pennsylvania in his father’s Honda. He reached Florida and then headed west through Tennessee. Tennessee State Troopers Richard Austin and Joel Deal observed appellant’s Honda parked in a rest stop. Several hours later, the officers observed appellant’s Honda parked in the same place at the rest stop. Trooper Austin watched appellant get out of his automobile, stretch, and put on a long coat. Since the weather was warm, Trooper Austin became suspicious. He ran a computer check on appellant’s. license plate number which revealed that appellant was wanted in Pennsylvania in connection with multiple homicides, that the occupant of the Honda matched the description of the suspect, and that appellant was presumed armed and dangerous. The troopers returned to the rest stop, surprised appellant in the restaurant, and arrested him.

The troopers then asked for appellant’s license and identification. Police retrieved these items after appellant indicated that they were in his wallet in his back pocket. When the troopers requested the keys to the Honda, appellant indicated they were in his coat pocket. Trooper Deal reached in and took the keys and handed them to Trooper Austin. Trooper Austin inspected the car, unlocked it, and retrieved a letter sitting on the car seat in plain view. The letter was written by appellant, and in it, he informed his girlfriend that he had killed his family, was proud of it, and felt better. The troopers then locked the car, made arrangements to have it towed, read appellant his Miranda rights, and transported him to the nearest police station.

At trial, appellant alleged that he killed his father in self-defense and that his father continually abused him. He claimed his father was angry that appellant’s stepmother again became pregnant and that his father frequently threatened to leave her or to kill the whole family. In fact, appellant alleged that his father was jealous and suspected him of impregnating his stepmother. Appellant produced witnesses who substantiated that his father beat him, was having marital discord, and had been seen by one of them threatening appellant by putting a gun to his head. Appellant’s specific defense to the charges of first degree murder was that his father had returned home in a drunken rage and forced appellant to kill the others. His father then made him clean the apartment. Later, in the car, his father again threatened him, but appellant was able to shoot his father. Appellant argued that the evidence supported this version of events since the blood-stained seats in the car matched only his father’s blood type. The Commonwealth refuted this evidence by proving that the barrel of the murder weapon contained only the blood type which matched his stepmother, but not his father. Thus, appellant’s stepmother rather than his father was the last one to be shot with that gun.

Appellant first argues that the trial court erred in denying his motion to suppress the letter to appellant’s girlfriend on the basis that it was seized as a consequence of an improper warrantless search. Appellant contends that his apparent consent to the search was made under duress, and moreover, he never was provided with any alternative to impoundment. This was despite the fact that his automobile was not illegally parked or obstructing traffic, and he could have made alternate arrangements to having it impounded. In addition, he argues that the objective acts of the police indicate that their search of the automobile was investigatory rather than an inventory search to protect its contents. For example, the police seized only the letter and did not complete a thorough inventory until later. Furthermore, no exigent circumstances existed, and thus, the search violated his fourth amendment rights against unreasonable search and seizures. In support, appellant cites Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19, L.Ed.2d 576 (1967) (exclusionary rule precludes use of evidence obtained through an illegal search).

We begin by noting that the legality of the search of appellant’s automobile is controlled by Tennessee law since that is where the search occurred. See Commonwealth v. Harris, 491 Pa. 402, 421 A.2d 199 (1980) (validity of search is governed by the law of the state where the search took place). We note that in State v. Jacumin, 778 S.W.2d 430 (Tenn.1989), the Supreme Court of Tennessee retained the two-prong test for probable cause for a search based on source of knowledge of criminal activity and the reliability of the knowledge, as espoused by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). In so doing, Tennessee failed to adopt the totality of circumstances test set forth by the Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Finally, Tennessee has approved impoundment and inventory searches of automobiles only in circumstances set forth in written procedures pursuant to which police must demonstrate that there was no feasible alternative to their safeguarding the automobile, such as the owner making alternate arrangements or leaving the automobile where it was parked and locking it. See Drinkard v. State, 584 S.W.2d 650 (Tenn.1979).

Our standard of review for suppression issues is clear. In Commonwealth v. Bruner, 388 Pa.Super. 82, 89, 564 A.2d 1277, 1281 (1989), we recently stated:

In reviewing a suppression court’s denial of a motion to suppress, the appellate court’s responsibility is to determine whether the record supports the factual findings of the suppression court and the legitimacy of the inferences and legal conclusions drawn from those findings. Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264, 1271 (1989). In making this determination, the reviewing court “will consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.” Id., 521 Pa. at 438, 555 A.2d at 1271-72, quoting Commonwealth v. Kichline, 468 Pa. 265, 280-81, 861 A.2d 282, 290 (1976).

Instantly, evidence adduced at the suppression hearing revealed that the troopers followed the written regulations authorizing impoundment. It would not have been reasonable to assume that appellant, who was from Pennsylvania and had been placed under arrest for four homicides, could have made viable alternate arrangements or could have left the vehicle unattended in a privately-owned area for a lengthy period. Also, the troopers conducted only a quick preliminary check for valuables prior to towing the vehicle, and the letter was in plain view. Consequently, we conclude that the suppression court properly denied appellant’s motion to suppress.

Finally, it is beyond question that appellant’s automobile would have been searched thoroughly after his arrest. The Supreme Court has upheld the introduction of evidence seized improperly where it can be established that it would have been discovered inevitably through an independent and uncorrupted source. The Supreme Court stated:

It seems to us, however, that reseizure of tangible evidence already seized is no more impossible than rediscovery of intangible evidence already discovered. The independent source doctrine does not rest upon such metaphysical analysis, but upon the policy that, while the government should not profit from its illegal activity, neither should it be placed in a worse position than it would otherwise have occupied. So long as a later, lawful seizure is genuinely independent of an earlier, tainted one ... there is no reason why the independent source doctrine should not apply.
The ultimate question, therefore, is whether the search pursuant to a warrant was in fact a genuinely independent source of the information and tangible evidence at issue here. This would not have been the case if the agent’s decision to seek the warrant was prompted by what they had seen during the initial entry, or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant.

Murray v. United States, 487 U.S. 533, 542, 108 S.Ct. 2529, 2535-36, 101 L.Ed.2d 472, 483-84 (1988) (footnote omitted). In the present case, we conclude that whatever the legitimacy of the original search, appellant’s letter ultimately would have been discovered independently pursuant to an inventory search following appellant’s arrest for murder and regardless of the earlier search. Therefore, the letter properly was admitted. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).

Next, appellant contends that the trial court erred in admitting color photographs of the bodies and photographs of his stepmother and brothers when they were alive. Appellant claims that these photographs were cumulative, not necessary to depict any facts at issue to the jury, and were inflammatory. Our standard of review is clear. Decisions regarding the admissibility of photographs are committed to the sound discretion of the trial judge and will not be reversed absent a showing that the trial court abused its discretion. Commonwealth v. Liddick, 471 Pa. 523, 370 A.2d 729 (1977); Commonwealth v. Petrakovich, 459 Pa. 511, 329 A.2d 844 (1974). “[I]t is not for an appellate court to usurp the function of the trial court to balance the alleged prejudicial effect of the evidence against its probative value.” Commonwealth v. O’Shea, 523 Pa. 384, 400, 567 A.2d 1023, 1030 (1989). In determining the admissibility of photographic evidence, the trial court first must determine whether the pictures are inflammatory. Commonwealth v. Young, 524 Pa. 373, 572 A.2d 1217 (1990); Commonwealth v. Liddick, supra. If they are not inflammatory, they are admissible, provided that they are relevant and can assist the jury in understanding the facts. Even if the photographs are inflammatory, they are admissible if their evidentiary value clearly outweighs the likelihood that they will inflame the passions of the jurors.

Instantly, we agree with the trial court’s reasoning that the challenged photographs of the bodies and the apartment were not inflammatory in that the wounds were not illustrated graphically. Furthermore, the photographs were relevant to explain the extent to which appellant meticulously cleaned the scene of the crime and how he attempted to hide the bodies of his victims. This bears not only on appellant’s subsequent plan to evade the consequences of his acts but also on his own consciousness of guilt. See Commonwealth v. Duffey, 519 Pa. 348, 548 A.2d 1178 (1988) (photographs of victim and murder scene properly admitted to show the victim’s injuries and to help the jury understand the murder scene).

Nor do we find that the admission of photographs of appellant’s stepmother and brothers while alive constitutes error. The record demonstrates that admission of these photographs was not accompanied by the highly irrelevant and emotional testimony about the life the victims led, their character, reputation, or the loss that surviving relatives suffered, which are the bases upon which our supreme court overruled the admission of similar photographs in Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978) (two photographs of victim with handicapped daughter embellished widow’s testimony regarding his character and her loss). Also, the photographs were not sent out with the jury, and the jurors were instructed that the verdict must be based on the evidence, not passion or prejudice. Accordingly, the admission at worst was harmless. Commonwealth v. Mehmeti, 501 Pa. 589, 462 A.2d 657 (1983) (admission of wedding picture of victim at son’s wedding was harmless where testimony was limited to identification and did not include a recitation of the victim’s life).

Appellant’s next argument is that counsel was ineffective for failing to object to improper closing argument by the prosecutor in which she appealed to the jury’s emotion and referred to matters not in evidence. See Commonwealth v. Watts, 488 Pa. 214, 412 A.2d 474 (1980) (unwarranted failure to object to inflammatory closing remarks by prosecutor constituted ineffective assistance of counsel and warranted the grant of a new trial). In reviewing appellant’s claims of trial counsel’s ineffectiveness, we are guided by a well-established standard, set forth by the supreme court in Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988):

There are three elements to a valid claim of ineffective assistance. We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission which was designed to effectuate his client’s interest. If he did, our inquiry ends. If not, the appellant will be granted relief if he also demonstrates that counsel’s improper course of conduct worked to his prejudice, i.e., had an adverse effect upon the outcome of the proceedings. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

Id. 518 Pa. at 83, 541 A.2d at 318. Furthermore, counsel is presumed to be effective, and the appellant has the burden of proof in this respect. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985); Commonwealth v. Grabowski, 378 Pa.Super. 454, 549 A.2d 145 (1988).

Our review of the record indicates that appellant’s underlying argument lacks merit. Appellant contends that the following remarks were improper and biased the jury against him by inflaming their passions and referring to matters not of record:

You should be angry because you shouldn’t treat a case where four people are dead as cavalier as [appellant and his counsel appear to] or is it that they didn’t have their act together? Now, Ladies and Gentlemen, you think about that and you consider the fact that perhaps the defendant couldn’t figure out, maybe he was thinking in his mind how am I going to explain this letter. Because he had to come up with it at that point.
Why is it that they couldn’t tell you who had killed [his father,] Catalino? Because the defendant hadn’t come up with the little story that he gave you from that witness stand.

Notes of Testimony, 6/5/89 at 42-43. Appellant complains that not only does this argument improperly appeal to the jurors’ emotions, but the prosecutor also improperly encouraged the jury to consider the prosecutor’s impression of appellant’s impassive demeanor throughout the trial when she stated that it demonstrated his apparent lack of remorse.

Comments by the prosecutor do not constitute reversible error unless the “unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility towards the defendant so that they could not weigh the evidence objectively and render a true verdict.” Commonwealth v. Anderson, 501 Pa. 275, 282, 461 A.2d 208, 211 (1983). We conclude from our review of the record that the remarks were not prejudicial but merely were arguments based on the evidence. Further, the trial court instructed the jurors that they should disregard the prosecutor’s remarks concerning appellant’s demeanor and consider only their own observations of him on the witness stand. As a result, we do not find unavoidable prejudice, especially when appellant’s demeanor as observed by the jury is a proper consideration. See Commonwealth v. Parente, 294 Pa.Super. 446, 440 A.2d 549 (1982) (prosecutor properly commented on appellant’s demeanor on the witness stand which readily was apparent to the jurors); Commonwealth v. Sparks, 351 Pa.Super. 320, 505 A.2d 1002 (1986) (demeanor is a relevant factor that the jury may consider in assessing a witness’s credibility).

Appellant next argues that the trial court’s instruction regarding the use of character evidence was incorrect and misleading to the jury. He contends that the charge was confusing, overemphasized the Commonwealth’s cross-examination, and negated the impact of the good character testimony. In support of this assertion, appellant argues that he is entitled to a clear instruction that community reputation in and of itself is enough to raise a reasonable doubt. Commonwealth v. Neely, 522 Pa. 236, 561 A.2d 1 (1989); Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1975). Appellant declares that this instruction was mandated because the primary duty of a trial judge in charging a jury is to clarify the issues so that a jury may understand the questions to be resolved. Commonwealth v. Litman, 276 Pa.Super. 114, 419 A.2d 121 (1980). The pertinent portion of the instruction at issue reads as follows:

The Assistant District Attorney called witnesses who testified that the defendant had taken a gun to school on one or two occasions and questioned some of the witnesses as to their knowledge about the gun. You may use the Commonwealth’s evidence about the gun for one purpose only. That is to help you judge whether the defense’s character witnesses are really familiar with the defendant’s reputation and whether in their testimony they gave you an accurate description of his reputation. The law recognizes that a person of good character is not likely to commit a crime which is contrary to his nature. Evidence of good character may by itself raise a reasonable doubt of guilt and justify a verdict of not guilty. You must weigh and consider the evidence of good character along with the other evidence in the case and if on all of the evidence you have a reasonable doubt of the defendant’s guilt you must find him not guilty.

Notes of Testimony, 6/5/89, at 91 (emphasis added).

Viewed in its context as a whole, we do not agree that this instruction is confusing or overemphasizes the Commonwealth’s cross-examination of the character witnesses regarding the gun. It is well-settled that in reviewing a challenge to the jury charge, the charge must be viewed as a whole. Commonwealth v. Grove, 363 Pa.Super. 328, 526 A.2d 369 (1987). The trial court correctly limited the Commonwealth’s cross-examination of appellant’s character witnesses to whether they knew that appellant carried a gun to school. The court instructed the jury that it was to consider this testimony only for the purpose of weighing the accuracy of the character witness testimony concerning appellant’s reputation in the community. Furthermore, the instruction clearly comports with the requirements of Neely.

Appellant’s final argument is that the court erred in denying his request to charge the jury that the possibility that another person committed these crimes is sufficient to raise a reasonable doubt as to his guilt. This instruction request was based on appellant’s allegation that his father made him kill the others and then he killed his father. It is well-settled that a trial judge is not required to accept a requested jury instruction verbatim, even if it is legally correct, as long as the relevant point of law adequately is presented to the jury. Commonwealth v. Smith, 511 Pa. 343, 513 A.2d 1371 (1986). Instantly, the court instructed the jury that the Commonwealth did not have any burden to exclude the possibility that others committed the crime; however, such a possibility could be considered as raising reasonable doubt. It then instructed the jury that if it did not believe the possibility that someone else committed the crimes, it was to find appellant guilty. Although this is not the precise language that appellant requested, we find that it adequately and correctly conveyed the point that the possibility that someone else committed the crimes could raise a reasonable doubt as to appellant’s guilt. “Where the charge properly covers the requested point, it is not error for the trial court to refuse to give additional instructions.” Commonwealth v. Grove, supra.

Judgment of sentence affirmed.

MONTEMURO, J., files a concurring opinion.

WIEAND, J., joins in the majority opinion and the concurring opinion.

MONTEMURO, Judge,

concurring.

While I agree with the analysis and conclusions reached by the majority, I feel it is important to recognize and address appellant’s challenge to the validity of the Tennessee search warrant.

Appellant seeks to assert that his Fourth Amendment rights were violated as the search warrant, issued two (2) days after his arrest on March 26, 1988, was not supported by probable cause. Based upon this allegation, appellant concludes that all evidence seized from his automobile pursuant to the warrant should have been suppressed. This contention is without merit.

Initially, the law to be utilized in determining the validity of a search warrant, and our consequent standard of review on appeal, is governed by Tennessee law. As set forth by the Tennessee Supreme Court,

[t]he Fourth Amendment warrant requirement mandates a probable cause determination made by a neutral and detached magistrate. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 396, 92 L.Ed. 436 (1948). Where the determination is made by such a magistrate, it is entitled to “great deference” by a reviewing court. The reviewing court’s standard is whether the magistrate had a substantial basis for concluding that a search warrant would uncover evidence of wrongdoing, (citations omitted).

State v. Jacumin, 778 S.W.2d 430, 432 (Tenn.1989) (emphasis added). “ ‘[I]n passing on the validity of a warrant, the reviewing court may consider only the information brought to the magistrate’s attention.’ ” Id., citing Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 1511 n. 1, 12 L.Ed.2d 723 (1964) (emphasis in original). And this information is to be contained in an affidavit of probable cause. See Id., citing Tenn.R.Crim.P., Rule 41(c). See also Blackburn v. Fox, 200 Tenn. 227, 292 S.W.2d 21 (1956) (It is from the contents of the affidavit for search warrant that the magistrate determines the existence of probable cause). With these principles in mind, it must be determined whether the issuing magistrate had a substantial basis for concluding that there was probable cause.

As stated by the Court of Appeals for the Sixth Circuit in United States v. Acklen, 690 F.2d 70 (6th Cir.1982), the test for probable cause is

... whether “the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief’ that certain items are the fruits, instrumentalities, or evidence of crime and that these items are presently to be found at a certain place.

United States v. Acklen, 690 F.2d 70, 73 (6th Cir.1982), citing Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949) (emphasis added). The recitation of facts set forth in the affidavit must provide a nexus between the crime and the automobile to be searched so that one can reasonably conclude that the evidence is in the place sought to be searched. State v. Longstreet, 619 S.W.2d 97, 99 (Tenn.1981), citing Whitley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 565-566, [91 S.Ct. 1031, 1035-1036, 28 L.Ed.2d 306] (1971).

In the instant case, the Statement of Probable Cause, attached to the Affidavit, alleges the following facts:

1) On March 21, 1988, at approximately 9:35 a.m., the bodies of four (4) people were discovered in Philadelphia, Pennsylvania;
2) These bodies were the father, step-mother and two (2) step-brothers of Jose Enrique Hernandez (appellant herein);
3) Jose Enrique Hernandez was seen going in and out of the house in which the bodies were discovered the entire week of March 14, 1988 thru March 21,1988, the date the bodies were found;
4) Based upon this information, a Pennsylvania Arrest Warrant was obtained for Jose Enrique Hernandez, alleging four (4) counts of murder;
5) On March 24, 1988, at approximately 1:30 a.m., Jose Enrique Hernandez was taken into custody by Tennessee State Trooper Deal, after Trooper Deal observed Hernandez acting suspiciously while resting at Reed’s Truck Stop in Dickson County, Tennessee;
6) Due to Hernandez’s suspicious behavior, Trooper Deal entered the license plate on Hernandez’ automobile and found out that the occupant of the vehicle was wanted on four (4) counts of murder;
7) Based on the above information, plus the fact that the evidence sought [i.e. blood samples, or bloody clothing/rags, .22 caliber ammunition (affiant knows that the murder weapon used was a .22 caliber pistol), or any notes, writing, or papers in relation to the four murders on or about March 14, 1988] was not found in the Philadelphia residence of the victims, the affiant believed there was probable cause to search the automobile which Hernandez was driving.

See “Affidavit and Search Warrant for Evidence of Crime” and “Statement of Probable Cause” attached thereto. After reviewing these facts and circumstances, it is not unreasonable to conclude that the items sought, since not present in appellant’s home in Philadelphia, might be present in the car which appellant utilized to drive from Pennsylvania into Tennessee. See United States v. Hatfield, 599 F.2d 759, 762 (6th Cir.1979), citing United States v. Hodge, 539 F.2d 898, 903 (6th Cir.1976), quoting Brinegar, supra 338 U.S. at 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (“In dealing with probable cause ... as the very name implies, we deal with probabilities.”) Given the facts of the Affidavit, and as commonsense dictates that there was a probability that the items might be in the automobile, the magistrate had a substantial basis for issuing the search warrant. See Id. at 762, citing United States v. Ventresca, 380 U.S. 102, 108-09, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965) (Where a recitation of the underlying circumstances in the affidavit are detailed, and where the magistrate has found probable cause, the courts should not interpret the validity of a warrant other than by a commonsense analysis.) Therefore, appellant’s assertion that his Fourth Amendment rights were violated is without merit.

WIEAND, J., joins.

      . See Majority Opinion, infra, p. 158, citing Commonwealth v. Harris, 491 Pa. 402, 421 A.2d 199 (1980) (The validity of the search of appellant’s automobile is controlled by Tennessee law.)

      . To the extent that appellant relies on State v. Jacumin, supra, for the test for probable cause, he is incorrect. In Jacumin, the basis of the affidavit of probable cause was information provided by a confidential informant. In determining whether there was probable cause, the Tennessee Supreme Court utilized the two-prong test as espoused in Aguilar v. Texas, supra and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) to determine the credibility and veracity of the information provided by the confidential informant in support of probable cause. The facts and circumstances of the instant appeal mandate a different test as all information provided in the affidavit was pursuant to police investigation. Therefore, we utilize the standard as set forth in Acklen, supra.