author: CIRILLO, Judge:

text:
    601 A.2d 1240
    Superior Court of Pennsylvania.
    Argued Dec. 12, 1991.
    Filed Jan. 13, 1992.

      Neil M. Krum, Jenkintown, for appellant.
    Bernard J. McLafferty, Erdenheim, for appellee.
    Before CIRILLO, DEL SOLE and HOFFMAN, JJ.
   CIRILLO, Judge:

Before the court is an appeal from a final order of the Court of Common Pleas of Montgomery County denying exceptions to the recommendation of the conciliator in support and vacating a previous order which required appellee Claire Marino (“mother” or “Claire”) to pay thirty-five per cent (35%) of Robert Marino’s college tuition.

Appellant Robert Marino (“Robert”), a twenty-one year old student at the time of trial, attended community college in Arizona on a part-time basis taking nine credits worth of courses. At the same time Robert worked about twenty hours per week earning approximately $5.00 per hour. Robert’s father, Louis Marino (“Louis”), who instituted this suit pursuant to Pa.R.C.P. 1910.3(4), is a teacher in the Philadelphia School District earning approximately $48,-800.00 per year. Claire works as a registered nurse at Sacred Heart Hospital in Philadelphia garnering approximately $34,400.00 annually.

The trial court found that Robert had commenced his college education at Niagara University where he became involved with drugs and was placed on academic probation. Robert withdrew from Niagara after one and one-half years, and upon returning home, was aided by Claire in obtaining counseling for his drug problem. He then enrolled in Montgomery County Community College (“MCCC”) in the spring semester of 1990 taking four courses at a cost of $636.00. Robert failed two of these courses and withdrew from a third. Robert, however, remained academically eligible to matriculate in Fall 1990 classes at MCCC, and could have lived at home with his mother and, presumably his father. Instead, Robert went to Arizona with his girlfriend and enrolled in Mesa Community College (“Mesa”). He did this despite his mother’s protestations that more affordable and perhaps better community colleges and four-year colleges existed in the Philadelphia area. Claire, however, eventually acquiesced to Robert’s desires and reluctantly agreed to assist Robert with tuition to attend Mesa. She signed a blank check and gave it to Robert, telling him not to exceed $1,500.00 as that was the extent of her checking account balance. Robert nevertheless proceeded to pay for the tuition by filling in the cost which was in excess of $1,700.00. Claire stopped payment on the check when she found out the cost and then deposited $1,500.00 into Robert’s personal checking account. Thereafter, Robert’s father paid a bill of $1,743.00 to cover the amount of tuition. Robert earned a 1.75 grade point on a 4.0 scale for that semester. He then enrolled part-time for nine credits the next semester.

Robert’s father commenced this action by petition. A conciliator made recommendations in support to which Robert, by his father, filed exceptions. A trial de novo was held in the court of common pleas that resulted in the order which is the subject of this appeal. Robert filed a petition for reconsideration. Three days later, subsequent to his counsel’s conversation with the trial judge indicating that there would be no reconsideration, Robert filed this appeal. The trial court did not act on the reconsideration petition.

On appeal, Robert raises two issues for our consideration:

1. Did the court below commit reversible error by finding that appellant Robert J. Marino, a college student, is “emancipated,” with no legal basis for that finding?
2. Did the court below commit reversible error by failing to calculate 1) the reasonable needs of Appellant, a college student, and 2) the abilities of Appellant’s father and his mother (Appellee) to contribute to his needs?

Claire seeks counsel fees pursuant to Pa.R.A.P. 2744 contending that this appeal is frivolous and vexatious.

I

We first must address a procedural irregularity which arose at oral argument on this matter. Upon the conclusion of oral argument, Robert moved to withdraw this appeal. The Internal Operating Procedures of this court state:

After argument or submission of a case on briefs, a petition for discontinuance is referred to the presiding judge of the panel. The panel will determine whether to grant or deny the petition.

This court expressed the standard of review in adult-child support cases as follows:

In addressing these claims of trial court error, we are mindful that our review of the trial court’s support order is limited to a determination of whether the court abused its discretion in fashioning the award. Leonard v. Leonard, 353 Pa.Super. 604, 608, 510 A.2d 827, 829 (1986). An abuse of discretion is not “merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.” Fee v. Fee, 344 Pa.Super. 276, 279, 496 A.2d 793, 794 (1985) (quoting Boni v. Boni, 302 Pa.Super. 102, 109, 448 A.2d 547, 550 (1982)). A finding of abuse is not lightly made and must rest upon a showing of clear and convincing evidence. Shindel v. Leedom, 350 Pa.Super. 274, 279, 504 A.2d 353, 356 (1986).

Bedford v. Bedford, 386 Pa.Super. 349, 353-54, 563 A.2d 102, 104 (1989) (citations omitted).

Robert first contends that the trial court erred in finding that he was emancipated. The importance of the trial court’s decision is clear. “A court shall not order either or both parents to pay for the support of a child if the child is emancipated.” 23 Pa.C.S.A. § 4323(a).

College payments for the child of divorced parents are a form of child support. Commonwealth ex. rel. Ulmer v. Sommerville, 200 Pa.Super. 640, 190 A.2d 182 (1963). However, we have developed a different set of standards to enunciate whether a child is, indeed, entitled to support for college expenses. To this end, before a court may issue an order requiring a parent to pay support for the educational expenses of a child, it must determine that the child is “able and willing to successfully pursue his course of studies,” and the parent has “sufficient estate, earning capacity or income to enable him to pay the order without undue hardship.” 200 Pa.Super. at 643-44, 190 A.2d at 184 (emphasis added). This court has recently expanded the Sommerville two. prong approach by establishing that where a child is unilaterally and willfully estranged from his or her parent, the duty of college support is lost to the child. Milne v. Milne, 383 Pa.Super. 177, 556 A.2d 854 (1989) (en banc) appeal denied 524 Pa. 598, 568 A.2d 1248 (1989); Bedford, supra. We also note that the duty of a parent to support an adult child through college is not as rigorous as the duty of a parent to provide the necessities of life, such as food, clothing and shelter. Lederer v. Lederer, 291 Pa.Super. 22, 435 A.2d 199 (1981). While child support in the form of college tuition is a duty placed upon a parent where the criteria are met, it is clear from the language of 23 Pa.C.S.A. § 4323(a) that we must first determine whether the trial court was correct in finding that Robert was emancipated.

Unfortunately, the definitions sections of the the Domestic Relations Code (“Code”) do not explain or define the concept of emancipation. Thus, it has fallen upon the courts to make up for this deficiency in the Code. Some guidance for resolving this case may be found in 1 Pa. C.S.A. § 1991. Section 1991 defines “adult” as “[a]n individual 21 years of age or over,” and “minor” as “[a]n individual under the age of 21 years.” 1 Pa.C.S.A. § 1991. However, the rules of civil procedure define an adult as one who has reached the age of eighteen. Pa.R.C.P. 76. Perhaps most persuasively, section 5302 of title 23 of the Pennsylvania Consolidated Statutes defines “child” as “[a]ny unemancipated person under 18 years of age.” In Brown v. Brown, 327 Pa.Super. 51, 474 A.2d 1168 (1984), this court stated, “[t]he age of majority, whether 18 or 21, is not one to conjure with in support cases, but it does, absent exceptional circumstances, offer a reliable indicium of the potential autonomy of the child.” 327 Pa.Super. at 54, 474 A.2d at 1169. Thus, at minimum, absent some clear exception to the contrary, a person reaches the age of majority, and necessarily is considered emancipated by act of law, when that person arrives at the age of twenty-one.

A review of the relevant case law has uncovered various exceptions to the general rule where children, after reaching majority, were allowed child support. Courts have made exceptions where the child is physically or mentally disabled to the point where that child is unable to provide for himself or herself. Commonwealth ex rel. Welsh v. Welsh, 222 Pa.Super. 585, 296 A.2d 891 (1972); Verna v. Verna, 288 Pa.Super. 511, 432 A.2d 630 (1981); Commonwealth ex rel. Cann v. Cann, 274 Pa.Super. 274, 418 A.2d 403 (1980). A further exception has been made where an adult child is able and willing to attend college and the parent has the means to contribute towards the expenses without undue hardship. Sommerville, supra. This exception has been extended to provide support for children attending commercial art school, Kopp v. Turley, 359 Pa.Super. 106, 518 A.2d 588 (1986), and post-secondary vocational training, Maurer v. Maurer, 382 Pa.Super. 468, 555 A.2d 1294 (1989) appeal denied 522 Pa. 596, 562 A.2d 320 (1989).

Child support, however, should not be given where the student shows no aptitude, ability or desire to continue with a course of study designed to make that person self-sufficient. Id. We have been reluctant to impose a minimum grade point or proficiency level on students whose support is the result of a post-nuptial agreement. In Schmucker v. Hanna, 377 Pa.Super. 301, 547 A.2d 379 (1988) appeal denied 522 Pa. 577, 559 A.2d 38 (1989), we declined to relieve a father from child support payments for college expenses because there was a post-nuptial agreement between the spouses which delineated that the father would pay for these expenses. Though the decision does not reveal the child’s grade point average, it is clear that the student was not a high level achiever. Applying contract principles, we concluded that if the parties had intended a minimum grade point average to be incorporated in the contract, then they would have explicitly stated that minimum grade point average in the text of the agreement. Id. 377 Pa.Super. at 305, 547 A.2d at 381.

In Commonwealth ex rel. Colligan v. Kass, 225 Pa.Super. 299, 303 A.2d 225 (1973), we also addressed the notion of grades and how they reflect the ability and motivation to learn in the college support context. The Kass court would not allow the child’s poor academic achievement in her freshman year stand as the basis for relinquishing her right to college aid from her father under a property settlement incident to her parents’ divorce. The court stated:

The fact that she did poorly in college in her first year is certainly not unusual nór does it indicate that that she did not have the motivation or ability to pursue higher education. Many freshmen at college, for various reasons, do poorly, then “shape up” after the first year, and become good students ... [Mjost certainly courts should not take over the responsibility of the college authorities and establish arbitrary standards of admission that have to be matched in order for the student to be found “able and willing” to graduate from a course of study at an institution of higher learning.

Id., 225 Pa.Superior Ct. at 302-03, 303 A.2d at 227. The court concluded that the child’s willingness and ability to succeed in college was demonstrated by the college’s acceptance and the child’s attendance at that school. Id.

Kass, however, is readily distinguishable from the instant matter. First, there was a college support agreement which indicates that the parent was aware of the impending costs of his child’s education. In the present case, Claire and Louis had no formal college support agreement. In Kass, the court noted the fine reputations of the four-year college at issue; whereas, in this case the schools at issue are community colleges. Most importantly, though, the child in Kass had one poor year, and the court was not willing to glean from this a lack of motivation on the part of the student. Here, there is a history of poor academic achievement covering numerous semesters at three different schools.

While we find Kass and Schmucker instructive, we are not bound by their dictates as they are factually distinct from this case. However, we shall follow the Kass court’s suggestion and not impose an arbitrary grade point which must be achieved in order to support the ability to successfully complete college requirement of Sommerville. Setting such an average would be unfair and impossible to apply as different schools grade their students on different scales, have widely divergent standards of achievement and varied standards of competitiveness. A far better approach is to evaluate each individual student’s accomplishments and failures within that child’s academic history and then determine if a suitable level of academic achievement was attained. This is reasonable for a court of law sitting in a support matter. As we stated in Milne, supra:

[T]he court stands in loco parentis in making such decisions. For that reason we must put ourselves in the shoes of each parent whose case comes before us. Since each case presents unique individuals and circumstances, it is incumbent upon our judiciary to fashion each decision with the best interests of the family in mind.

383 Pa.Super. at 187, 556 A.2d at 859-60. Acting in loco parentis, we must decide whether a parent of a child, whose academic history reflects the one before the court, would continue to pay for that child’s education.

Thus, it is at this point that we examine Robert’s claim of trial court error in finding emancipation. The trial court found that Robert was emancipated as he “ha[dj attained majority, ha[d] no disabilities, but [was] not taking advantage of the opportunity to acquire advanced training to help prepare him for his future.” To affirm this decision we must find that Robert was not able or willing to pursue his course of studies. The record clearly supports such a finding.

Robert had amassed an abysmal academic record after his bout with drugs at Niagara which forced him into academic probation. Robert then enrolled in MCCC, taking four courses. Of these four courses Robert passed one, failed two and withdrew from the fourth. The next semester, though academically eligible to return to either Niagara or MCCC, Robert enrolled in Mesa where he averaged a 1.75 grade point on a 4.0 scale. He has spent his fourth, fifth and sixth semesters (and during the course of this litigation, his seventh semester) in programs which only offer four semesters of instruction to an individual.

This academic record, replete with failures, withdrawals, academic probation and low scores in general, indicates, at minimum, a lack of commitment and seriousness on Robert’s part to complete his studies. Moreover, Robert’s academic record attests to this court an inability, if not an unwillingness, to successfully complete his educational ventures. We, therefore, find that the trial court’s denial of child support was correct as Robert has failed to show an ability to perform on the college level and a reasonable parent in Claire’s situation would choose not to continue payments for that child’s studies. Thus, by not coming within the college support exception for emancipation and having reached the age of twenty-one, the trial court correctly determined that Robert was emancipated. While this discussion is enough to affirm the trial court, we feel compelled to address certain other indications of Robert’s emancipation.

Case law in the Commonwealth has not been explicitly clear regarding the concept of emancipation. However, two recent decisions have enlightened the bench and bar, to some extent, concerning when a child has become emancipated. In Griffin v. Griffin, 384 Pa.Super. 188, 558 A.2d 75 (1989) appeal denied 524 Pa. 621, 571 A.2d 383 (1989), this court affirmed an order requiring a father to pay college support to a daughter where the daughter herself had given birth to a child. In reaching this decision the court emphasized the fact that the daughter was not married and the fact that she did not leave the family home to live separately. The father argued that his daughter’s age, twenty-one, and her status as the mother of child rendered her ineligible for support. Ultimately, we decided that parenthood alone was not a sufficient reason to conclude that a child was emancipated. Id. 384 Pa.Super. at 199, 558 A.2d at 81.

In Maurer, supra, this court was confronted with a denial of educational aid for a son by the trial court. The son was scheduled for induction into the army, but was released from this commitment because he contracted appendicitis. The son then worked at a garage and enrolled in a program of vocational training in automobiles and preparing the students to start their own small businesses. The trial court declined child support because the son was attending a course of study leading to a bachelors degree. The court first extended the student support to vocational training programs “if the child has the ability and desire to successfully complete the course of studies.” 382 Pa.Super. at 472, 555 A.2d at 1296.

Next the court addressed the notion of emancipation generally. The Maurer court stated:

After a careful analysis of the term and concept of emancipation, once the other requirements are met permitting a child to pursue advanced training, the criterion that is applicable in a support/educational situation is whether the child is dependent upon his parents for support or is independent of such needs ... Emancipation is a question of fact to be determined by the circumstances presented in each case.

382 Pa.Super. at 475, 555 A.2d at 1297-98 (emphasis supplied). Thus, the Maurer decision allows courts to address a range of circumstances in child educational support matters. After reviewing the entire record, we believe that there are many circumstances which lead to the conclusion that Robert is emancipated.

Robert left the Philadelphia area to live in Arizona with his girlfriend. While we have yet to declare a child’s marriage, or quasi-marital relations, a conclusive factor in determining whether a child is emancipated for educational support purposes, we are inclined to consider it a factor to be weighed in the totality of circumstances test suggested by Maurer. We note, however, that the marital status of a minor conclusively determines his or her standing in applying for public assistance. We are constrained to conclude that Robert’s decision to attend community college in Arizona was reached not through consultation and discussion with his parents, but was motivated by his desire to be with his girlfriend. Further, where a person leaves the home of a parent, see Griffin, supra, moves thousands of miles primarily motivated by a desire to live with a girlfriend or boyfriend, we can reasonably conclude that a quasi-marital relationship exists. This relationship does not carry all of the incidents and benefits of marriage, but it does indicate an intention to live and act as an adult. There is testimony to support this conclusion.

Claire was notified of Robert’s decision to go to Arizona after he and his father had decided that Robert could move. Claire told Robert that she did not approve of what he was doing and further explained that she felt a comparable, if not superior, education was attainable in the Philadelphia area at a much lower cost. Louis Marino stated that Robert went out to Arizona to visit his girlfriend because, after determining that he could not go back to Niagara for financial reasons, Robert did not know what else to do. The decision to go to Arizona clearly did not stem from a desire to attend school there. We note that Robert has been diligent in containing the costs of his education in Arizona and is attempting to obtain residency and gain access to Arizona State University. We conclude, however, that these financial concerns were not the primary motivation for Robert’s decision to move to Arizona.

Robert has also expressed a desire to be independent in a letter addressed to “Domestic Relations” which appears as an exhibit from the trial. The letter states in part:

The main reason I wrote this letter is so that I can handle my own financial responsibilities without being put between my parents. I feel as though that if they want to contribute to my financial needs, that they do it as an act of parenthood and not as an act of spite for each other which I feel as though they sometimes do, whether [sic] they know it or not.

This letter clearly indicates Robert’s desire and intention to be financially freed from his parents. The letter also accurately expresses Robert’s wish that any college or other expenses that Claire or Louis decide to make may continue to be made as a gesture of love and parenthood. Though we decide that Robert is emancipated, his parents, of course, may choose to continue to contribute to Robert’s education in any they wish. When a child approaches a parent, with hat in hand, it is the rare parent who would turn away. However, no parent in an intact family is compelled to do so, and we will not require such in the circumstances before us. Nonetheless, we must consider the desires of Robert, who we point out is an adult, in determining whether he is emancipated. Two final considerations which suggest Robert’s emancipation are that Robert is now employed in Arizona as a part-time worker and that he has reached the age of twenty-one.

When we examine the the circumstances before us, we must conclude that Robert is emancipated. He has moved across the country in an effort to be with his girlfriend. Robert expressed an interest in handling his own financial interests separately, and has taken a job to help support himself. We are, therefore, compelled to conclude that Robert is emancipated in light of the circumstances here. Maurer, supra.

A final consideration we are obliged to address is our previous holding that college support payments shall not be ordered after the child’s twenty-third birthday except under exceptional circumstances. DeWalt v. DeWalt, 365 Pa.Super. 280, 289-90, 529 A.2d 508, 513 (1987); see also Brown, 327 Pa.Super. at 55, 474 A.2d at 1170. Dewalt is easily distinguishable from the case before us. First we note, when addressing child support claims in the educational context the goal for the court is to attempt to replicate, as nearly as possible, the decision the intact family would have made. Milne, 383 Pa.Super at 184, 556 A.2d at 861; Pharoah v. Lapes, 391 Pa.Super. 585, 598-99, 571 A.2d 1070, 1077 (1990) (Cirillo, P.J., dissenting); see also Horan, Postminority Support for College Legally Enforceable Obligation in Divorce Proceedings?, 20 Fam. L.Q. 589, 607 (1987). As we concluded above, the oldest a person can be to presume emancipation is twenty-one years. Thus, an intact family may cease to support a child under any other than physical or mental disability, when a child reaches the age of majority. However, in an intact family where a child is on the verge of completing college, parents overwhelmingly provide support to the child because a level of interest and committment in completing and obtaining a degree was displayed. In DeWalt, we stated that, in the usual case, an interested and committed person will have typically had four years to complete a degree when he or she reaches twenty-three. 365 Pa.Super. at 290, 529 A.2d at 513.

In the instant case, Robert has not shown the requisite interest in obtaining a degree to warrant a court order against his mother to provide support for his education. He has reached twenty-one and has made little progress toward completing a degree. Most recently, Robert has spent four semesters in community colleges which do not have bachelors degree programs and has performed terribly in those colleges. He had also demonstrated lackluster performance in his previous stint at Niagara. In DeWalt, we stated:

If [a child] has not demonstrated this committment [to complete a college education] and has failed to take advantage of the opportunity given him, he has waived any right to complain about lack of parental interest.

Id. Robert’s record has confirmed to this court the lack of desire and committment discussed in DeWalt. We therefore find that, although Robert has not reached twenty-three, his failure to show a committment to his education prohibits this court from requiring college support payments on his behalf.

As we stated earlier, the court on support matters sits in loco parentis in order to protect the interests of the children and the remainder of the family. It is important that we ensure that children of divorced parents retain the same rights and entitlements as those children who live in families where the parents are married. This is the job of the court sitting in loco parentis. However, where the relationship between parent and child comes to the point where the parent or child may end the incidents of the family relationship, then the courts are powerless to resolve disputes which arise under these conditions. See Pharoah, 391 Pa.Super. at 599, 571 A.2d at 1077-78 (Cirillo, P.J., dissenting) (child of non-divorced parents may not, after discussion of whether to attend more expensive or less expensive school, attend more expensive school against parent’s wishes and then sue them for the difference in tuition).

It is our hope that this decision will foster better communication between divorced parents and their children in considering college expenses. Such communication would clarify and cause the parents and child to contemplate each other’s rights, responsibilities, duties and privileges.

We recognize and are saddened by the reality that all too often the children are the victims of “friendly fire” between divorced parents. However, discussion about college expenses among the two parents, along with the child, should expose the financial weakness of the child and allow each parent to take better aim at the problem and not at each other at the expense of the children. Such communication may lead to written support agreements where matters such as who pays the college expenses, at what age those expenses expire, any minimum grade point a child must receive in college, as well as numerous other decisions would be delineated. This may prevent painful litigation, and, most importantly, this would allow both parents to realize the warm, uplifting joy one feels upon seeing his or her child take diploma in hand.

Thus, in considering whether a child is emancipated for educational aid support cases, the court should look at all of the circumstances presented by that case. Maurer, supra. Among the circumstances a court should consider are the age of the child, the child’s desire to attend school which may be illustrated by the child’s level of performance during that schooling, whether the child is living in the family home or has moved away, any marital or quasi-marital status the child may be involved in, and the child’s express desires. In the present case, Robert’s school performance, his age, his move to Arizona to be with his girlfriend, and his desire to account for his financial responsibilities indicates that he is emancipated. The trial court, therefore, did not commit an abuse of discretion by declaring Robert emancipated. Bedford, supra.

III

Robert’s second argument is that the trial court erred by failing to calculate his reasonable needs, and the ability of the parents, individually, to contribute to his college expenses. This argument lacks merit. Since we have already determined that the trial court was correct in finding that Robert was emancipated, no support was necessary. Maurer, supra; Sommerville, supra. The trial court was not required to determine Robert’s needs and the parents’ abilities to pay because the court properly concluded that Robert was emancipated for purposes of child support. Therefore, the trial court did not commit an error of law or abuse its discretion. Bedford, supra.

IV

Finally, Claire seeks a reasonable attorney’s fee pursuant to Pennsylvania Rule of Appellate Procedure 2744. A reasonable attorney’s fee may granted where an appeal is frivolous or results from vexatious conduct. Pa. R.A.P. 2744. An appeal is frivolous where it lacks any basis in law or fact. Smith v. Board of Probation and Parole, 524 Pa. 500, 506, 574 A.2d 558, 562 (1990). Simply because an appeal lacks merit does not make it frivolous. Id. We do not find that this appeal resulted from vexatious conduct or that it is frivolous.

Order affirmed. Request for attorney’s fees denied.

DEL SOLE, J., concurs in the result.

      . Robert’s enrollment in Arizona was preceded by completing semesters at various other educational institutions discussed infra.
        Robert contends that he attended community college in Arizona in order to establish residency so that he could pay an ‘‘in-state’’ resident’s tuition at Arizona State University in which he ultimately planned to matriculate.

      . Rule 1910.3(4) provides:
      An action shall be brought by a parent on behalf of a child over eighteen years of age to whom a duty of support is owing, with the written consent of the child.
      Pa.R.C.P. 1910.3(4).

      . Robert enrolled for six credits at Mesa and three credits at Scottsdale Community College. This arrangement allowed Robert to hold down costs by being a part-time student in two institutions, instead of the higher cost of being a full-time student in one school.

      . Rule 2744 provides, in part:
      In addition to other costs allowable by general rule or Act of Assembly, an appellate court may award as further costs damages as may be just, including (1) a reasonable counsel fee ... if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious.
      Pa.R.A.P. 2744

      . The rationale, however, has not been extended to post-college studies. Child support was denied to a twenty-two year old law student in Brown v. Brown, 327 Pa.Super. 51, 474 A.2d 1168 (1984), because the court decided that "college” referred to undergraduate study leading tó a bachelor’s degree. In Colantoni v. Colantoni, 220 Pa.Super. 46, 281 A.2d 662 (1971), we declined to extend the mandate of Sommerville to a child who was a twenty-four year old, married medical student who established residence in West Virginia.

      . Kass arose under a property settlement agreement and, thus, also may be distinguished from cases where the court imposes college support. The Kass court, however, did not decide the issue on contract principles as the Schmucker court had.

      . We do not wish to disparage community colleges as they are fine institutions of higher learning and do provide an important role in preparing prospective students for successful college achievement among other things. However, the colleges at issue in Kass are known for their high admissions standards and academic competitiveness.

      . Induction into the army may be grounds for emancipation.

      . The record indicates that Robert went to Arizona to stay with his girlfriend for a week’s visit. This week visit was prolonged when Robert decided to stay and enroll in community college. It is not clear from the record exactly how long Robert lived with his girlfriend.

      . Section 4321 of the Domestic Relations Code states:
      (1) Married persons are liable for the support of each other according to their respective abilities to support as provided by law.
      23 Pa.C.S. § 4321(1). This section would appear to indicate that married people have become emancipated from their parents as support rights come from the spouses.

      . Section 145.62 of Title 55 of the Pennsylvania Code provides:
      A minor who has never been married or has the marriage annulled, but who remains under the control of the parents is unemancipated whether he lives in the parental household or not.

      . Though it is not a issue properly considered in the totality of circumstances inquiry for emancipation, we cannot dismiss from our discussion Robert’s conduct in taking money offered by his mother to aid in paying tuition. Claire gave Robert a blank check to take to Arizona upon her reluctantly agreeing that she would help him with tuition. Robert, after being told by his mother that she had limited funds available in her checking account, proceeded to enter an amount on the check in excess of the amount Claire had told him she had available. Claire, when told of the potential overdraft, stopped payment on the check and deposited the money in Robert’s savings account, from which Robert could withdraw funds in Arizona. Robert’s conduct certainly illustrates a contempt for acting in a mature and adult fashion which we hope will be remedied by his learning to handle his financial resources in a more mature manner.

      . We choose twenty-one, opposed to eighteen, because the supreme court has not made expressly clear the age of majority for support cases. In Sutliff v. Sutliff, 515 Pa. 393, 528 A.2d 1318 (1987), our supreme court disagreed with our court on the age of majority when our court distinguished in a support case between children above eighteen and those below eighteen. The supreme court stated:
      Superior Court, relying on Pa.R.C.P. 76, incorrectly defined the age of majority as eighteen. The age of majority for substantive purposes in civil matters remains twenty-one. 1 Pa.C.S. § 1991; In re Pincus Estate, 378 Pa. 102, 105 A.2d 82 (1954). However, 23 Pa.C.S. § 4321, enacted in October, 1985, distinguishes between children eighteen years of age and younger and children older than eighteen for purposes of support. We do not believe that 23 Pa.C.S. § 4321 is a departure from the established law of the Commonwealth discussed infra.

        Sutliff, 515 Pa. at 401, 528 A.2d at 1322. From this we infer that the age of majority for substantive purposes is twenty-one.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    601 A.2d 1250
    Michael A. PALMER and Edith E. Palmer, his wife v. John SOLOE and Barbara Soloe, his wife, Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1991.
    Filed Jan. 21, 1992.

      Christopher T. Spadoni, Asst. Public Defender, Bethlehem, for appellants.
    Alfred S. Pierce, Nazareth, for appellees.
    Before JOHNSON, FORD ELLIOTT and HESTER, JJ.
   HESTER, Judge:

The issue presented in this appeal is whether a property owner may unilaterally change the location of a prescriptive easement located on his property. We agree with the trial court that the possessor of land subject to the easement may not change the easement location when the change materially interferes with the easement holders’ use of their easement; we therefore affirm.

The majority of the facts relevant to a determination of this appeal are not contested. The parties stipulated that an easement by prescription consisting of a gravel roadway ranging in width from fifteen to twenty feet exists on property owned by appellants, John and Barbara Soloe. Appellees, Michael A. and Edith E. Palmer, use the easement as access to their farm from Route 611 in Lower Mount Bethel Township, Northampton County. The farm is located northwest of appellants’ property, and the easement is used by heavy farm equipment.

The easement originally was located approximately fifteen feet from appellants’ comer pin, then it curved west and proceeded along the common boundary between the parties’ properties, and ended on property owned by individuals who are not parties to this action. The original configuration provided access to and from Route 611 by the use of a “Y” intersection. Between May and June, 1988, appellants admittedly relocated the easement on their property by moving and reconstructing the gravel road a distance of approximately twenty feet to the north. They also filled in the pre-existing gravel road with dirt and then planted grass and shrubs over it. This action was taken because appellants were experiencing problems with water run off from the road.

The trial court made the following relevant factual findings. First, vehicles exiting onto Route 611 and turning north “were afforded a better view of traffic” where the easement was located originally. Trial court opinion, 12/14/90, at 2. The trial court also concluded that while the new easement can be negotiated by large farm equipment, it is more difficult to negotiate than the old easement as a result of a “sharper turn” to the west. Id. at 3. Finally, the trial court found that none of the witnesses, who included appellees and other easement holders, consented to the relocation. Id. at 5.

Appellees instituted this action seeking the return of the easement to its original location. Appellants brought a counter claim for damages caused when appellees drove farm equipment over grass and shrubbery that was planted on the old easement. A hearing was held on August 15, 1990, and the trial court subsequently entered an order granting appellees their requested relief and denying appellants an award on their counter claim. This appeal followed the final decree entered following denial of appellants’ exceptions to the decree nisi.

Initially, we discuss our standard of reviewing the decision of the equity court.

[O]n appeal we are bound by the chancellor’s findings of fact, particularly if approved by the court en banc, to the same extent as we would be bound by the factual determinations of a jury. The test in either case is whether the findings are adequately supported by the record. The chancellor’s findings are entitled to particular weight in a case in which the credibility of the witnesses must be carefully evaluated, because he has had the opportunity to hear them and to observe their demeanor on the stand. Charles v. Henry, 460 Pa. 673, 334 A.2d 289 (1975).

Stauffer v. Stauffer, 465 Pa. 558, 567, 351 A.2d 236, 240 (1976); accord Weir v. Estate of Ciao, 521 Pa. 491, 556 A.2d 819 (1989) (at bench trial, it is the trial court’s duty to judge credibility and weigh testimony and its findings will not be disturbed absent error of law or abuse of discretion); Fuisz v. Fuisz, 386 Pa.Super. 591, 563 A.2d 540 (1989) (appellate courts are constrained by a narrow standard of review in equity matters and are bound by the trial court’s determination pertaining to the credibility of the witnesses and the weight to be accorded the evidence). Thus, appellate review in these matters is limited to a determination of whether there was an error of law, and the trial court’s conclusions will not be disturbed unless they are not supported by the evidence. Hostetter v. Hoover, 378 Pa.Super. 1, 547 A.2d 1247 (1988).

Two of the trial court’s crucial factual findings are supported by the evidence introduced at the hearing and will not be disturbed. Those are that the new location of the easement renders access more difficult and dangerous and that none of the easement holders who testified at trial consented to relocation of the easement. We only need determine, then, if the trial court made an error of law in concluding that appellants did not have the right to unilaterally change the location of the easement to the detriment of the easement holders.

An easement, once acquired, may not be restricted unreasonably by the possessor of the land subject to the easement. In Taylor v. Heffner, 359 Pa. 157, 164, 58 A.2d 450, 454 (1948), the Supreme Court held that while the property owner has the right to use the easement, it is clear that those rights extend only to using the easement in a manner that is consistent with the rights of the easement holder, and the property owner may not take actions that “completely deny” use of the easement. Thus, the law provides that the possessor of the land subject to the easement may not interfere unreasonably with the easement holder’s use of the easement. See Restatement of Property § 481 (the possessor of land subject to a prescriptive easement may only make such use of the easement as is “not incompatible” with the use authorized by the easement, and the possessor of the land may not “interfere” with the use of the easement).

What constitutes unreasonable interference on the part of the possessor of the land subject to the easement will depend upon consideration of the advantage to him of his desired use of the easement and the disadvantage to the owner of the easement. Restatement of Torts § 481, comment a; see also Flaherty v. DeHaven, 302 Pa.Super. 412, 448 A.2d 1108 (1982), where we held that the location of a right-of-way that is not expressly set forth in a deed may be fixed by subsequent use and acquiescence and that the right-of-way so fixed may not be blocked even when there is another access over the land subject to the right-of-way. This holding was premised on the fact that the alternate access was not as safe as the one that had been used by the holders of the right-of-way.

In the present case, appellants, possessors of the land subject to the easement, completely denied appellees access over the easement. While they tried to make accommodation by opening another right-of-way, it is clear that the relocation nonetheless interfered materially with appellees’ use of their easement. The interference is established by the fact that access to Route 611 is more dangerous at the relocated easement since the view of the road is restricted. In addition, appellees cannot negotiate their heavy farm equipment over the turn of the relocated easement as easily since the “Y” formation is missing. Finally, while we sympathize that appellants have a water run-off problem, the record does not establish that relocation of the easement was the only solution. Other alternatives may have been available that would not have interfered totally with appellees’ use of their easement.

Accordingly, the order of the trial court is affirmed.

      . Appellants suggest that since they testified that everyone consented to the relocation and no one else specifically testified that they did not consent, the trial court was required to conclude that everyone consented to the relocation of the easement. However, the factfinder is permitted to reject a witness's testimony in its entirety, and it is obvious that the trial court did not believe appellants’ testimony that they had unanimous consent to move the easement. Furthermore, the fact that appellees immediately instituted this action seeking return of the easement's location supports the trial court’s finding that they did not consent to the relocation.

      . Appellants allege that the trial court erred in determining that the new easement extends onto land not owned by appellants. They argue that the survey introduced at the hearing conclusively establishes that the new easement is wholly on their land. We will assume that appellants are correct; however, this has no affect on the result in this case. As explained above, supra, appellants were not entitled to change the easement as they did, regardless of whether the easement remained totally on their property.


author: CIRILLO, Judge: HUDOCK, Judge,

text:
    601 A.2d 1253
    COMMONWEALTH of Pennsylvania v. Kevin BEATTY, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 31, 1991.
    Filed Jan. 21, 1992.
    Joseph K. Cottrell, Philadelphia, for appellant.
    Nancy L. Butts, Asst. Dist. Atty., Williamsport, for Com., appellee.
    Before ROWLEY, President Judge, and CAVANAUGH, WIEAND, CIRILLO, OLSZEWSKI, KELLY, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   CIRILLO, Judge:

Appellant Kevin Beatty appeals from a judgment of sentence entered in the Court of Common Pleas of Lycoming County following conviction for violation of 75 Pa.C.S. § 3731 (Driving under influence of alcohol or controlled substance) (DUI). This case presents the following issue on appeal: Whether the enhancement provision of the statutory penalty for section 3731 of the Motor Vehicle Code, 75 Pa.C.S. § 3731(e), was illegally applied by the sentencing court where the court utilized as prior convictions those convictions occurring subsequent to the date of the DUI offense for which the defendant was sentenced?

Section 3731(e) of the Motor Vehicle Code provides:

(e) Penalty.—
(1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:
(i) not less than 48 consecutive hours.
(ii) not less than 30 days if the person has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdiction within the previous seven years.
(iii) not less than 90 days if the person has twice previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.
(iv) not less than one year if the person has three times previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.

75 Pa.C.S. § 3731(e).

Kevin Beatty pled guilty to a Centre County DUI charge on November 6, 1989 and was sentenced on December 5, 1989. He was sentenced to ninety days imprisonment based upon the court’s finding that he had two prior convictions, one in 1983, and another in 1985. See 75 Pa.C.S. § 3731(e)(1)(iii). Beatty was again charged with DUI as a result of an offense occurring on July 9, 1989. On July 5, 1990, Beatty was sentenced for the July 9, 1989 offense. He was sentenced to the mandatory minimum of one year imprisonment, see 75 Pa.C.S. § 3731(e)(1)(iv), as a result of the sentencing court’s determination that at the time of sentencing Beatty had three prior convictions within the previous seven years. Beatty argues that at the time of his July 9, 1989 offense he had not yet been convicted of the Centre County charge; his guilty plea on the Centre County charge was not entered until four months after the July 9, 1989 offense. Therefore, Beatty contends, the court improperly applied subsection (iv) of section 3731(e) (providing penalty enhancement for three prior convictions), instead of subsection (iii) (providing penalty enhancement for two prior convictions).

The sentencing court must focus on a defendant’s status as a recidivist in order to properly apply the penalty enhancement provisions of section 3731(e). We are presented with the question of what point in time a sentencing court must utilize in establishing the defendant’s date of sentencing, or the date of the commission of the offense for which the defendant will be sentenced. This determination is vital to ensure a uniform application of the penalty enhancement provisions.

Here, the sentencing court determined Beatty’s recidivist status as of the date of sentencing. The court relied upon the language in the Pennsylvania Supreme Court’s decision in Commonwealth v. Gretz, 520 Pa. 324, 554 A.2d 19 (1989). In Gretz, our supreme court affirmed by per curiam order this court’s holding that the defendant, who had been convicted of a second DUI offense, could be sentenced as a second offender on the first DUI offense. The supreme court noted that “if, at the time of sentencing, the defendant has previously been convicted, it matters not in what sequence the arrests or other events occurred.” Id., 520 Pa. at 325, 554 A.2d at 20 (emphasis added).

More recently, however, in Commonwealth v. Kimmel, 523 Pa. 107, 565 A.2d 426 (1989), our supreme court held otherwise. The decision in Kimmel, in our estimation, implicitly overrules Gretz.

In Kimmel, our supreme court concluded that the trial court was correct in applying the measurement employed by this court in Commonwealth v. Kearns, 365 Pa.Super. 13, 528 A.2d 992 (1987). In Kearns, the seven-year recidivist period was measured from the date of the first conviction to the date of the second offense. The Kimmel court, interpreting the statutory language of section 3731(e)(1), stated:

In this case, the legislature deliberately used the words “violating” and “conviction” to anchor both ends of the computation. When the term “conviction” is used in a statute, it means “the ascertainment of the guilt of the accused and judgment thereon by the court,” stating our ancient rule in Commonwealth v. Minnich, 250 Pa. 363, 367, 95 A. 565, 567 (1915). “Violating” in the common usage of the term refers to the time when the offensive conduct takes place, and it should not be confused with the point where the judicial process judges a violator to be accountable and then administers its punishment in accordance with due process. We read Section 3731(e)(1)(H) as meaning exactly what it says: a present violation and a previous conviction constitute the look-back period. The plain meaning of the statute affords no other interpretation.

Kimmel, 523 Pa. at 111, 565 A.2d at 428 (emphasis added). See Commonwealth v. Sojourner, 513 Pa. 36, 518 A.2d 1145 (1986); Commonwealth v. Bell, 512 Pa. 334, 516 A.2d 1172 (1986); see also Commonwealth v. Carter, 353 Pa.Super. 203, 509 A.2d 407 (1986) (imposition of mandatory minimum sentence was precluded because previous conviction occurred more than seven years before date of instant offense); cf. Commonwealth v. Dickerson, 404 Pa.Super. 249, 590 A.2d 766 (1991) (conviction for enhancing offense pursuant to 42 Pa.C.S. § 9714(b) must precede the commission of the later offense); Commonwealth v. Wolfe, 349 Pa.Super. 415, 503 A.2d 435, appeal granted, 514 Pa. 617, 521 A.2d 932, (1986), appeal dismissed, 517 Pa. 406, 537 A.2d 1370 (1988) (conviction for enhancing offense pursuant to 42 Pa.C.S. § 9714(b) requires that conviction for enhancing offense antedate commission of principal offense).

We conclude, therefore, that the trial court erred in utilizing the date of sentencing as the “anchor” or “look-back” date for calculating the penalty enhancement under section 3731(e)(1). The import of Kimmel is clear. When determining penalty enhancement under section 3731(e)(1), the sentencing court must utilize the date of the offense for which the defendant is to be sentenced, and determine the number of prior convictions as of that date; “a present violation and a previous conviction constitute the look-back period.” Kimmel, 523 Pa. at 111, 565 A.2d at 428. Only those convictions prior to the offense date and within the seven year look-back period shall be utilized to determine the applicable penalty enhancement. 75 Pa.C.S. § 3731(e)(1).

Judgment of sentence is vacated, and the case is remanded for resentencing in accordance with this decision. Jurisdiction is relinquished.

HUDOCK, J., files a dissenting opinion.

HUDOCK, Judge,

dissenting.

Respectfully, I dissent. I believe the majority has mistakenly applied our Supreme Court's specific holding on the particular facts presented in Commonwealth v. Kimmel, 523 Pa. 107, 565 A.2d 426 (1989), to a substantially different factual pattern presented by the instant appeal. In doing so, the majority has also found that our Supreme Court overruled precedent it had established only eight months earlier.

In Kimmel, supra, the defendant was arrested on December 28, 1986, and charged with Driving Under the Influence, (DUI). Kimmel pled guilty to this charge on May 4, 1987. Kimmel’s record also contained a prior arrest for DUI on November 7, 1979, to which he pled guilty on January 4, 1980. Subsequent to Kimmel’s guilty plea in 1987, the trial court determined that Kimmel was a second offender under 75 Pa.C.S.A. § 3731(e)(1)(H). This Court affirmed in an unpublished memorandum. Commonwealth v. Kimmel, 377 Pa.Super. 653, 541 A.2d 1152 (1988).

Allocatur was granted and our Supreme Court was presented with a factual situation where Kimmel’s first offense occurred on November 7, 1979 and the second offense occurred on December seven years and one month later. Thus, the Supreme Court was faced with the issue of “whether [Kimmel's] record fits ‘within the previous seven years.’ ” Commonwealth v. Kimmel, supra, 523 Pa. at 109, 565 A.2d at 427. In arriving at its conclusion, the Supreme Court noted that this Court had already addressed this problem in Commonwealth v. Kearns, 365 Pa.Super. 13, 528 A.2d 992 (1987). In Kearns, the conviction date for the first DUI offense was August 6, 1979, and the second offense occurred on April 23, six years and eight months later. This Court rejected Ream's argument that the seven year period should be measured from the date of the first offense to the date of the second offense, or from the date of the prior conviction to the date of the present conviction, finding instead that the seven year period was to be measured from the date of the prior conviction to the date of the second offense.

In Kimmel, supra, our Supreme Court, in expressly evaluating the phrase “within the previous seven years,” § 3731(e)(l)(ii), found that the seven year “look-back” period for recidivism is measured “from the date of the prior conviction to the date of the second offense.” Id., 523 Pa. at 109-10, 565 A.2d at 427. Our Supreme Court relied solely on the application of well-settled rules of statutory construction to arrive at this conclusion. In both Kimmel and Kearns, both our Supreme Court and this Court were confronted with factual situations where, depending on the start date and end date of the seven year period, the respective defendant would qualify for sentencing under § 3731(e)(ii). I cannot believe that our Supreme Court, by affirming this Court’s decision in Kimmel, supra, intended such a holding to apply to circumstances in which multiple DUI offenses/convictions occur well within the seven year time period contemplated by the penalty enhancement provisions of § 3731(e). Unlike the majority, I find that other recently established precedent by the Supreme Court requires a different conclusion.

In Commonwealth v. Towns, 356 Pa.Super. 592, 512 A.2d 54 (1986), an unpublished memorandum, Towns was arrested and charged with DUI on October 30, 1984. On December 26, 1984, Towns was again arrested and charged with DUI. Towns was accepted into ARD for the October offense on February 15, 1985. After entering a guilty plea to the second DUI charge on April 8, 1985, Towns was sentenced as a second offender pursuant to § 3731(e)(l)(ii). The sole issue raised on appeal to this Court was whether the trial court erred in invoking § 3731(e)(1)(h) because Towns contended that, at the time of the commission of the December offense, he was not a second offender. Towns premised his argument on the contention that whether one is a recidivist offender under the DUI statute is determined at the time of the commission of the offense, rather than at the time of sentencing. The panel in Towns rejected such an argument as “specious”, and affirmed Towns’ judgment of sentence. Id., memorandum at p. 1. Our Supreme Court affirmed this Court’s decision via a per curiam order. Commonwealth v. Towns, 517 Pa. 389, 537 A.2d 1361 (1988). Thus, under the facts presented in similar to those presented in the instant Supreme Court found that the fact that Towns committed a second DUI violation prior to his conviction on the first offense was not an impediment to sentencing Towns as a second offender.

In Commonwealth v. Gretz, 368 Pa.Super. 94, 533 A.2d 732 (1987), Gretz was first arrested and charged with DUI in Chester County on May 2, 1984. She thereafter was accepted into ARD and, while under the supervision of that program, was arrested and charged with DUI in Bucks County on January 18, 1985. Following Gretz’s guilty plea to the January offense, the Bucks County Court of Common Pleas sentenced Gretz under the first offender provision of the DUI statute, 75 Pa.C.S.A. § 3731(e)(l)(i). Upon learning of this conviction, the district attorney for Chester County requested and obtained Gretz’s removal from the county ARD program. Thereafter, on March 31, 1986, Gretz appeared before the Chester County Court of Common Pleas, pled guilty to the May, 1984, DUI arrest, and was sentenced as a second offender under the recidivist portion of the DUI statute. Thus, although the May 2, 1984 incident occurred before the one in 1985, for sentencing purposes it was treated as a second offense.

This Court reversed the decision of the trial court, finding that Gretz should have been sentenced as a second offender for the 1985 offense and as a first offender for the 1984 offense. More importantly, however, the panel was required to determine whether “one has been previously convicted for purposes of [§ 3731(e)(l)(ii) ] where he is convicted on a subsequent DUI charge prior to sentencing, but after commission of the offense for which he is being sentenced (the principal offense).” Id., 368 Pa.Superior Ct. at 98, 533 A.2d at 734 (emphasis in original). Gretz urged the panel to interpret § 3731(e) in accordance with the principles established by our decisions in Commonwealth v. Wolfe, 349 Pa.Super. 415, 503 A.2d 435 (1986), appeal dismissed, 517 Pa. 406, 537 A.2d 1370 (1988), and Commonwealth v. Mourar, 349 Pa.Super. 583, 504 A.2d 197 (1986), vacated and remanded, 517 Pa. 83, 534 A.2d 1050 (1987). In these cases, this Court interpreted the guidelines promulgated by the Pennsylvania Commission on Sentencing, see 204 Pa.Code § 303.6, reprinted at 42 Pa.C.S.A. § 9721 (Purdon 1982 and Supp.1991), as conforming to the principle that “prior convictions must antedate commission of the principal offense to be eligible for application as sentence enhancers.” Commonwealth v. Gretz, supra, 368 Pa.Super. at 99, 533 A.2d at 734, quoting Commonwealth v. Mourar, supra, 349 Pa.Super. at 592, 504 A.2d at 202 (emphasis in original). The Gretz panel, noting that the enhanced sentencing provision of § 3731(e)(1)(ii) applied to recidivists, applied the holding of Wolfe and Mourar, and held that the mandatory minimum sentence of § 3731(e)(l)(ii) does not apply unless the previous conviction precedes commission of the principal offense.

Allocatur was granted and our Supreme Court, once again via a per curiam order, reversed this Court. In doing so, the Supreme Court, citing to our decision in Commonwealth v. Towns, supra, stated that the panel in Towns rejected the sentencing argument as specious. Moreover, the Supreme Court explicitly stated, “[I]f at the time of sentencing, the defendant has been previously convicted, it matters not in what sequence the arrests or other events occurred.” Commonwealth v. Gretz, 520 Pa. 324, 325, 554 A.2d 19, 20 (1989) (emphasis added).

In the instant appeal, due to the close proximity in which Appellant committed two DUI offenses, his previous conviction on the first offense did not precede the commission of the second offense. Under the Supreme Court holdings of Towns and Gretz, this sequence of events is of no consequence and Appellant was properly sentenced as a second offender. The Supreme Court's discussion in Kimmel does not mention either Towns or Gretz. I, unlike the majority, do not view this omission as expressing an intention by our Supreme Court to overrule the latter cases sub silentio, since the Supreme Court was dealing with a separate and distinct question.

I would affirm the judgment of sentence.

      . 75 Pa.C.S.A. § 3731.

      . As this court stated in Dickerson, supra, our holding is not meant to suggest that the sentencing court cannot consider the fact of the prior offense in fashioning an appropriate sentence. 404 Pa.Super. at 261 n. 5, 590 A.2d at 772 n. 5. " ‘Prior connections, of whatever nature, with law enforcement authorities are unquestionably among the circumstances to be scrutinized [in sentencing].'” Commonwealth v. Wolfe, 349 Pa.Super. 415, 442, 503 A.2d 435, 439 (1986) (quoting Commonwealth v. Lupatsky, 341 Pa.Super. 338, 340, 491 A.2d 845, 847 (1985)).

      . The Supreme Court also cited to Commonwealth v. Perkins, 372 Pa.Super. 30, 538 A.2d 930 (1988). Perkins dealt with the failure to establish the requisite proof of a New York violation as an equivalent offense for the purpose of § 3731(e)(1)(h). Beyond citing to Commonwealth v. Kearns, supra, for well-settled principles of statutory construction, the Perkins court did not engage in any independent interpretation of § 3731(e)(1)(h) because it was not necessary to the case’s disposition.

      . The opinion in Kearns did not list the date on which the first offense was committed. It is obvious, however, that the DUI arrest must have occurred at some time prior to the conviction. Moreover, given Kearn's argument as stated in the opinion, it is proper to assume that the arrest occurred more than seven years before the commission of the second offense.

      . In Kearns, supra, this Court compared § 3731(e)(1)(h) to other sentence enhancer statutes in reaching its conclusion that § 3731(e)(1)(H) should be analyzed in accordance with other sentencing enhancer statutes which have been interpreted to require that the previous conviction precede the commission of the principal offense. See e.g., Commonwealth v. Mourar, 349 Pa.Super. 583, 504 A.2d 197 (1986), vacated and remanded, 517 Pa. 83, 534 A.2d 1050 (1987). This rationale was adopted and applied by another panel of this Court in Commonwealth v. Gretz, 368 Pa.Super. 94, 533 A.2d 732 (1987). However, as shall be seen above, the application of such a rationale to § 3731(e)(1)(h) has been rejected by our Supreme Court.

        . A petition for allocatur was not filed following our decision in Kearns, supra.

      . In a very brief unpublished memorandum, this Court affirmed the trial court's sentencing Kimmel as a second offender, noting that precisely the same issue had been decided in Kearns, supra.

      . In Mourar, our Supreme Court reversed and remanded for resen-tencing in light of its decision in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987). In Sessoms, the Supreme Court invalidated the sentencing guidelines.

      . In the per curiam order, our Supreme Court also explicitly stated that, although the panel decision in Towns was supported by an unpublished memorandum, which itself could not be cited as prece-dential, the per curiam affirmance constituted a binding decision of precedential authority on the question presented and accepted by the Supreme Court for review. It is obvious from reading the per curiam orders, as well as the memorandum and opinion detailed above, that the application of § 373 l(e)(l)(ii) was the sole issue accepted for review by our Supreme Court in Towns and Gretz.


author:
CIRILLO, Judge:
      HUDOCK, Judge,

text:
    601 A.2d 1258
    COMMONWEALTH of Pennsylvania v. John TOBIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 19, 1991.
    Decided Jan. 21, 1992.
    Jay Stillman, Asst. Public Defender, Williamsport, for appellant.
    Nancy L. Butts, Asst. Dist. Atty., Williamsport, for Com.

      Before ROWLEY, President Judge, and CAVANAUGH, WIEAND, CIRILLO, OLSZEWSKI, KELLY, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   CIRILLO, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Lycoming County. Appellant John Tobin was arrested on July 30, 1990 for driving under the influence of alcohol (DUI). 75 Pa.C.S. § 3731. Seven months later, on February 1, 1991, Tobin was again arrested for a DUI offense. On March 18, 1991, Tobin pled guilty to both charges. Tobin was sentenced for both offenses on July 16, 1991. On the first conviction, the sentencing court imposed a sentence of seven days to five months imprisonment; on the second conviction the court imposed a sentence of forty-five days to eighteen months imprisonment. Tobin contends that the latter sentence, which was based upon Tobin’s status as a second offender, see 75 Pa.C.S. § 3731(e)(1)(h), was error.

This court is presented once again with the issue raised in Commonwealth v. Beatty, 411 Pa.Super. 450, 601 A.2d 1253 (1992): Did the sentencing court use the proper method for determining a conviction of a prior offense for purposes of applying the enhancement provisions of 75 Pa.C.S. § 3731(e)? Section 3731(e) of the Motor Vehicle Code provides:

(e) Penalty.—
(1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:
(i) not less than 48 consecutive hours.
(ii) not less than SO days if the person has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.
(iii) not less than 90 days if the person has twice previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.
(iv) not less than one year if the person has three times previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.

75 Pa.C.S. § 3731(e)(1) (emphasis added).

The facts of this case differ slightly from those in Beatty. Nonetheless, the principles espoused in that case apply here with equal vigor. In Beatty, the sentencing court utilized the enhancement provision in section 3731(e)(l)(iv) and sentenced Beatty to a mandatory minimum term of imprisonment of one year for an offense which occurred on July 9, 1989. As of the sentencing date, July 5, 1990, Beatty had committed three offenses prior to the July 9, 1989 offense, but his guilty plea for one of the three offenses was not entered until four months after his July 9, 1989 offense. This court, applying the law as stated by our supreme court in Commonwealth v. Kimmel, 523 Pa. 107, 565 A.2d 426 (1989), held that the sentencing court erred when it used the date of sentencing for the current offense as the “anchor” or “look-back” date for calculating the penalty enhancement under section 3731(e)(1).

When determining penalty enhancement under section 3731(e)(1), the sentencing court must utilize the date of the offense for which the defendant is to be sentenced, and determine the number of prior convictions [] as of that date; “a present violation and a previous conviction constitute the look-back period.”

Commonwealth v. Beatty, 411 Pa.Super. at 454, 601 A.2d at 1255, quoting Commonwealth v. Kimmel, 523 Pa. at 111, 565 A.2d at 428.

Here, Tobin entered his guilty plea to both offenses on March 18, 1991. Thus, his guilty plea to his first offense was not entered until after the commission of his second offense. On the date of his second offense Tobin had no prior conviction under this title. 75 Pa.C.S. § 3731(e). Notwithstanding the fact that Tobin did have a prior offense on the date of his second offense, the language of the penalty enhancement statute is person must have a previous conviction of an offense under this section within the previous seven years in order to be subject to the enhanced mandatory minimum sentences. Id. Consequently, when sentencing Tobin for his second offense, the sentencing court erred when it applied the penalty enhancement provision of section 3731(e)(1)(ii). Kimmel, supra; Beatty, supra.

Due to the fortuitous delay in the entry of his guilty plea on the first offense, the application of the law works in Tobin’s favor, and, at first glance, appears to bestow an unwarranted and unjust benefit. Our General Assembly, however, has unambiguously qualified the recidivist legislation, “deliberately us[ing] the words ‘violating’ and ‘conviction’ to anchor both ends of the computation.” Kimmel, 523 Pa. at 111, 565 A.2d at 428. Moreover, Tobin does not fall within that class of persons for which the enhancement penalty was intended.

It was not intended that the heavier penalty prescribed for the commission of a second offense should descend upon anyone except the incorrigible one, who after being reproved, “still hardeneth his neck.” If the heavier penalty prescribed for the second violation ... is visited upon the one who has not had the benefit of the reproof of a first conviction, then the purpose of the statute is lost.

Commonwealth v. Sutton, 125 Pa.Super. 407, 413, 189 A. 556, 558 (1937) (quoting Morgan v. Commonwealth, 170 Ky. 400, 186 S.W. 132 (1916)). Other recidivist legislation has been interpreted in this manner. See, e.g., Commonwealth v. Eyster, 401 Pa.Super. 477, 585 A.2d 1027 (1991) (en banc) (sentencing court erred in utilizing prior convictions to enhance prior record score, where prior convictions did not precede commission of offense upon which sentence was currently being imposed); Commonwealth v. Dickerson, 404 Pa.Super. 249, 590 A.2d 766 (1991) (for prior conviction to serve as enhancer requiring mandatory minimum sentence for recidivist perpetrators of certain violent crimes, conviction must precede commission of later offense); cf. Commonwealth v. Cozzone, 406 Pa.Super. 42, 593 A.2d 860 (1991) (motorist had prior conviction for driving under the influence of alcohol, within meaning of mandatory minimum sentence provision, where motorist had previously been found guilty of the first offense but was not sentenced on the first conviction until after commission of second offense). As we observed in Dickerson, this principle is the majority rule in the country. 404 Pa.Super. at 258-60, 590 A.2d at 771, citing Annot., 24 A.L.R.2d 1247. See generally 39 Am.Jur.2d Habitual Criminals § 6 (“It is thus generally essential that the alleged conviction shall have preceded the date of the offense for which the increased punishment is sought to be imposed.”)

Accordingly, we hold that the sentencing court erred when it applied the enhancement provision of section 3731(e)(l)(ii) in sentencing Tobin for his second offense. Kimmel, supra; Beatty, supra. “[F]or a prior conviction to serve as an enhancer, ... the conviction must precede the commission of the later offense.” Dickerson, 404 Pa.Super. at 261, 590 A.2d at 772.

For the foregoing reasons, we vacate judgment of sentence and remand for resentencing consistent with this decision. Jurisdiction is relinquished.

HUDOCK, J., files a dissenting statement.

HUDOCK, Judge,

dissenting:

Respectfully, I dissent. See Commonwealth v. Beatty, 411 Pa.Super. 450, 601 A.2d 1253 (Hudock, J., dissenting).

      . The term “convicted" means “found guilty’ and not “found guilty and sentenced.” Commonwealth v. Beasley, 505 Pa. 279, 479 A.2d 460 (1984).

      . As this court stated in Dickerson, our holding is not meant to suggest that the sentencing court, when fashioning an appropriate sentence for the second offense, cannot consider the fact of the prior offense. 404 Pa.Super. at 261 n. 5, 590 A.2d at 772 n. 5. “ ‘Prior connections, of whatever nature, with law enforcement authorities are unquestionably among the circumstances to be scrutinized [in sentencing].”’ Commonwealth v. Wolfe, 349 Pa.Super. 415, 442, 503 A.2d 435, 439 (1986) (quoting Commonwealth Lupatsky, 341 Pa.Super. 338, 340, 491 A.2d 845, 847 (1985)).


text:
    601 A.2d 1261
    COMMONWEALTH of Pennsylvania v. Daniel J. ECK, Appellant. COMMONWEALTH of Pennsylvania v. Michael P. LENKER, Appellant. COMMONWEALTH of Pennsylvania v. June HILL, Appellant. COMMONWEALTH of Pennsylvania v. Eugene KELLY, Appellant. COMMONWEALTH of Pennsylvania v. James FLEMING, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 31, 1991.
    Filed Jan. 21, 1992.

      Joseph K. Cottrell, Philadelphia, for appellants.
    Nancy L. Butts, Asst. Dist. Atty., Williamsport, for Com.
    Before ROWLEY, President Judge, and CAVANAUGH, WIEAND, CIRILLO, OLSZEWSKI, KELLY, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   CIRILLO, Judge:

These five appeals are from judgments of sentence entered in the Court of Common Pleas of Lycoming County following convictions for violation of 75 Pa.C.S. § 3731 (Driving under the influence of alcohol or controlled substance) (DUI). The issue raised in each case is whether the sentencing court used the proper method for determining a conviction of a prior offense for purposes of applying the enhancement provisions of 75 Pa.C.S. § 3731(e). This issue has been addressed by our supreme court in Commonwealth v. Kimmel, 523 Pa. 107, 565 A.2d 426 (1989), and more recently by this court en banc in Commonwealth v. Beatty, 411 Pa.Super. 450, 601 A.2d 1253 (1992) and Com monwealth v. Tobin, 411 Pa.Super. 460, 601 A.2d 1258 (1992).

Section 3731 of the Motor Vehicle Code provides:

(e) Penalty.—
(1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:
(i) not less than 48 consecutive hours.
(ii) not less than 30 days if the person has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.
(iii) not less than 90 days if the person has twice previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.
(iv) not less than one year if the person has three times previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.

75 Pa.C.S. § 3731(e)(1). The facts of these cases are as follows:

APPEAL OF DANIEL ECK

In 1987, Daniel Eck was admitted to the Accelerated Rehabilitative Disposition Program (ARD), see Pa.R.Crim.P. 160-186, in 1987 for his first DUI violation. Eck committed a second DUI offense on April 5, 1989, and a third on April 19, 1989. On July 20, 1989 he committed a fourth DUI offense. In August of 1989, Eck was convicted and sentenced to a minimum term of thirty days imprisonment for his second offense pursuant to 75 Pa.C.S. § 3731(e)(1)(h). Two months later, on October 16,1989, Eck entered guilty pleas for his third and fourth DUI offenses. On March 8, 1990, Eck was sentenced to a minimum of 90 days imprisonment for his third DUI offense, see 75 Pa.C.S. § 3731(e)(l)(iii), and to a minimum term of one year imprisonment on his fourth DUI offense. 75 Pa.C.S. § 3731(e)(l)(iv).

APPEAL OF MICHAEL LENKER

Michael Lenker was convicted of a DUI offense in 1985. Lenker committed a Second DUI offense on July 2,1989 and a third offense on July 3, 1989. On November 30, 1989, Lenker entered a guilty plea for his second offense; on December 5, 1989 he entered a guilty plea for his third offense. In March of 1990 Lenker was sentenced to a minimum term of imprisonment of thirty days for his second DUI offense, 75 Pa.C.S. § 3731(e)(1)(ii), and to a minimum term of ninety days imprisonment for his third DUI offense. 75 Pa.C.S. § 3731(e)(1)(iii).

APPEAL OF JUNE HILL

Appellant June Hill committed her first DUI offense on August 23,1989 and her second DUI offense on October 23, 1989. On February 13, 1990, Hill entered guilty pleas to both charges. On March 28, 1990, Hill was sentenced to forty-eight hours imprisonment for the first conviction, 75 Pa.C.S. § 3731(e)(1)(i), and to a minimum term of thirty days imprisonment for the second offense. 75 Pa.C.S. § 3731(e)(1)(ii).

APPEAL OF EUGENE KELLY

Appellant Eugene Kelly committed his first DUI offense on June 29, 1988 and a second offense on August 28, 1988. He entered guilty pleas to both offenses on January 10, 1989. On January 29, 1990 Kelly was sentenced to forty-eight hours imprisonment for his first offense, 75 Pa.C.S. § 3731(e)(1)(i), and to a minimum of thirty days imprisonment for his second offense. 75 Pa.C.S. § 3731(e)(1)(ii).

APPEAL OF JAMES FLEMING

Appellant James Fleming committed his first DUI offense on June 28, 1989 and a second offense on August 24, 1989. On January 9, 1990, Fleming pled guilty to both offenses. Fleming was sentenced on April 18, 1990 to forty-eight hours imprisonment for the first offense, 75 Pa.C.S. § 3731(e)(1)(i), and to a minimum of thirty days imprisonment for his second offense. 75 Pa.C.S. § 3731(e)(1)(ii).

In each of these cases the sentencing court incorrectly applied the enhancement penalty provisions of 75 Pa.C.S. § 3731(e)(1)(i)-(iv), determining each appellant’s recidivist status as of the date of sentencing rather than the date of the subsequent offense. Appellant Eck was sentenced to a minimum of one year imprisonment for his fourth offense pursuant to section 3731(e)(1)(iv), the enhanced penalty for three prior convictions, although at the time of his fourth offense he had only two prior convictions. Appellant Lenker was sentenced to a minimum of ninety days imprisonment for his third DUI offense pursuant to section 3731(e)(1)(iii), the enhanced penalty for two prior convictions, but had only one prior conviction at the time of his third offense. Appellant Hill was sentenced to a minimum of thirty days imprisonment for his second DUI offense, the enhanced penalty for one prior conviction pursuant to section 3731(e)(1)(ii), but at the time of his second offense he had no prior convictions. Similarly, appellants Kelly and Fleming were sentenced to thirty-day minimum terms of imprisonment for second offenses, and neither Kelly nor Fleming had a prior conviction at the time of the second offense.

Pursuant to our supreme court’s decision in Commonwealth v. Kimmel, 523 Pa. 107, 565 A.2d 426 (1989), recidivist status is determined from the date of the offense for which the person is being sentenced. Our supreme court stated:

“Violating” in the common usage of the term refers to the time when the offensive conduct takes place, and it should not be confused with the point where the judicial process judges a violator to be accountable and then administers its punishment in accordance with due process. We read Section 3731(e)(1) ... as meaning exactly what it says: a present violation and a previous conviction constitute the look-back period. The plain meaning of the statute affords no other interpretation.

Kimmel, 523 Pa. at 111, 565 A.2d at 428 (emphasis added).

Accordingly, the judgments of sentence are vacated and the cases are remanded for resentencing. See Commonwealth v. Beatty, 411 Pa.Super. 450, 601 A.2d 1253 (1992); Commonwealth v. Tobin, 411 Pa.Super. 460, 601 A.2d 1258 (1992). See also Commonwealth v. Cozzone, 406 Pa.Super. 42, 593 A.2d 860 (1991); cf. Commonwealth v. Eyster, 401 Pa.Super. 477, 585 A.2d 1027 (1991) (en banc); Commonwealth v. Dickerson, 404 Pa.Super. 249, 590 A.2d 766 (1991). Jurisdiction is relinquished.

HUDOCK, J., files a dissenting statement.

HUDOCK, Judge,

dissenting:

Respectfully, I dissent. See Commonwealth v. Beatty, 411 Pa.Super. 450, 601 A.2d 1253 (Hudock, J., dissenting).

      . Acceptance into the ARD program constitutes a prior conviction under 75 Pa.C.S. § 3731(e). See Commonwealth v. Becker, 366 Pa.Super. 54, 530 A.2d 888 (1987).

      . As this court stated in Commonwealth v. Dickerson, 404 Pa.Super. 249, 590 A.2d 766 (1991), our holding is not meant to suggest that the sentencing court, when fashioning an appropriate sentence for the second offense, cannot consider the fact of the prior offense. 404 Pa.Super. at 261 n. 5, 590 A.2d at 772 n. 5. '“Prior connections, of whatever nature, with law enforcement authorities are unquestionably among the circumstances to be scrutinized [in sentencing].’" Commonwealth v. Wolfe, 349 Pa.Super. 415, 442, 503 A.2d 435, 439 (1986) (quoting Commonwealth v. Lupatsky, 341 Pa.Super. 338, 340, 491 A.2d 845, 847 (1985)).


author: CAVANAUGH, Judge.

text:
    601 A.2d 1263
    COMMONWEALTH of Pennsylvania v. Luis Anibal MORALES, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 31, 1991.
    Filed Feb. 4, 1992.
    Vincent J. Quinn, Chief Public Defender, Lancaster, for appellant.
    James J. Karl, Asst. Dist. Atty., Lancaster, for Com., appellee.

      Before ROWLEY, President Judge, and CAVANAUGH, WIEAND, CIRILLO, OLSZEWSKI, KELLY, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   CAVANAUGH, Judge.

In this case we are asked to reexamine the issue of whether one may be convicted of criminal solicitation, 18 Pa.C.S.A. § 902, where the person approached would be the victim of the crime and not an accomplice. We ruled in Commonwealth v. Cauto, 369 Pa.Super. 381, 535 A.2d 602 (1987) that it was not necessary that the person who was approached be capable of being held culpable of the underlying crime before the defendant may be found guilty of criminal solicitation. Appellant recognizes that Cauto is controlling authority, but he requests that it be overruled. This we decline to do.

Appellant was found guilty by a jury of criminal solicitation and corruption of minors. He received concurrent sentences of five years probation. The bill of information charged him with the following conduct: “Luis Aníbal Morales did with the intention of promoting or facilitating the commission of a crime, command, encourage, or request another person to engage in specific conduct which would constitute such crime, or an attempt to commit such crime which would establish his complicity in its commission or attempted commission, to wit: actor did request that Christopher Webster, age 14 to engage in deviate sexual intercourse. On two occasions, actor did ask Webster if he wanted a ‘blow job’. Offense occurred in 100 block of Water Street, Lancaster, PA.”

At trial these facts were proven through the testimony of the victim, Christopher Webster. Appellant testified in his own defense that he believed the victim was older than fourteen when he asked him if he wanted to have sex or not.

The argument presented on appeal is that since Webster could not be found guilty of the crime of involuntary deviate sexual intercourse (IDSI) as an accomplice under 18 Pa.C.S.A. § 306, he may not legally be found to have been capable of conduct establishing complicity in the commission of the crime.

The statute defining, criminal solicitation is as follows:

§ 902. Criminal solicitation
(a) Definition of person is guilty of solicitation to commit a crime if with the intent of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct which would constitute such crime or an attempt to commit such crime or which would establish his complicity in its commission or attempted commission.

In Cauto, this court rejected the proposition that the person solicited be liable for either the commission of the underlying crime or for a different crime. 369 Pa.Superior Ct. at 390-91, 535 A.2d at 607. We noted that the solicitation was for the victim’s participation in conduct without which appellant could not have committed IDSI. The Cauto opinion quoted extensively from Commonwealth v. Wilson, 296 Pa.Super. 264, 442 A.2d 760 (1982), which involved arrests for solicitation and prostitution. In Wilson, it was found that offers to engage in sexual conduct for money with undercover police officers were sufficient to support a conviction of criminal solicitation.

Appellant’s reliance on § 306 of the Crimes Code, regarding accomplice liability, does not require a contrary result. Section 306 pertains to those instances in which an individual may be held accountable for the conduct of another as an accomplice. Section 306(f)(1) specifically states that a person is not an accomplice if he is the victim of the offense. This section would have protected Webster from criminal culpability had he accepted appellant’s offer of sex, however, it has no applicability to a determination of appellant’s culpability.

We find the reasoning of Cauto to be sound, and its holding is determinative of the outcome of this case. Appellant would not have been able to commit the crime of IDSI had he not asked Webster to have sex with him. Webster would have been a necessary partner in the commission of the crime of IDSI, and as such, appellant’s proposition to him constituted criminal solicitation.

Judgment of sentence affirmed.

      . Only the conviction of criminal solicitation is before the court on appeal.

      . On appeal, the judgments of sentence for solicitation were affirmed and the convictions for prostitution were vacated. 498 Pa. 529, 447 A.2d 1381 (1982).


author: HUDOCK, Judge:

text:
    601 A.2d 1265
    COMMONWEALTH of Pennsylvania, Appellee, v. Robert USA, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 24, 1991.
    Decided Dec. 17, 1991.

      Gregory H. Chelak, Hawley, for appellant.
    Roseann B. Termini, Asst. Atty. Gen., Harrisburg, for Com., appellee.
    Before DEL SOLE, BECK and HUDOCK, JJ.
   HUDOCK, Judge:

A jury found the Appellant (Usa) guilty of one count each of theft by unlawful taking or disposition, theft by deception, receiving stolen property, and criminal conspiracy. The trial court denied Usa’s post-verdict motions and sentenced him to a term of ten to twenty-three months incarceration and a $5,000.00 fine. On direct appeal, this Court affirmed the judgment of sentence in an unpublished memorandum opinion. 394 Pa.Super. 634, 569 A.2d 1387 (1989) (table). The Supreme Court of Pennsylvania then denied Usa’s petition for allocatur. 525 Pa. 645, 581 A.2d 571 (1990) (table). Usa now appeals the denial of his petition for post-conviction relief, pursuant to the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq., (P.C.R.A.), which petition alleged ineffective assistance of counsel. We affirm.

The facts, as found by the trial court, may be summarized as follows: Mr. Usa owned Roma Trucking, Inc. and was in the business of transporting hazardous waste. In February of 1987, PIE Nationwide Trucking transported nine fifty-five gallon drums of gold cyanide solution, a hazardous waste, to its terminal in Bensalem Township, Bucks County, Pennsylvania. RFE Industries was next in line to transport the shipment from Pennsylvania to their Jersey City operations. In early March of 1987, the local PIE Nationwide Trucking dispatcher received a telephone call from an unidentified person requesting permission to pick up the nine barrels of solution. Usa instructed his employee, New-comb, where to pick up an unmarked truck from Pass Recovery Systems, Inc. with which to pose as RFE employees and receive the drums of gold cyanide from PIE Nationwide Trucking. Usa also told Newcomb to have the third person who would be driving the truck to use the name Gary Gomes when receiving the shipment. For his effort, Newcomb would be paid a couple of hundred dollars. Pass Recovery Systems, Inc. was to use a firm called Abbey Metal Corporation in the process of recovering the gold from the cyanide solution. The value of the gold cyanide solution was $62,300.00.

After loading the drums, Newcomb took the loaded truck back to the site of Pass Recovery Systems, Inc. RFE never received the nine drums from PIE Nationwide Trucking. Newcomb was later identified by an employee of PIE Nationwide Trucking as one of the men in the truck who picked up the gold cyanide shipment. In the interim, the Department of Environmental Resources (DER) was alerted as to the stolen cyanide solution because of its hazardous waste nature. In turn, the DER contacted the Office of the Attorney General for further investigation. About three weeks after the theft, Newcomb was arrested and, through his statement, inculpated Usa. Usa was then lured by police and members of the Attorney General’s Office into Pennsylvania, whereupon he was arrested. Rather than pay $50,000.00 bond, Usa cooperated with the police and made a voluntary, inculpatory statement.

Usa’s counsel raised for the first time in post-verdict motions a challenge to the authority of the Attorney General in bringing and prosecuting the criminal action against Usa. The trial court denied this motion as untimely; this Court affirmed on the same grounds. (Majority opinion at p. 476-477.) Usa claims the untimely challenge amounts to ineffective assistance of counsel because if the Attorney General’s authority had been found lacking, then the information against Usa would have been invalid and, consequently, dismissed.

Claims of ineffectiveness of counsel are subject to a three-part analysis:

First, it must be demonstrated that the underlying claim is of arguable merit. Next, it must be determined whether counsel’s choice of action had some reasonable basis designed to effectuate his client’s interests. Finally, a showing must be made of how counsel’s choice of action prejudiced the client. The law presumes that counsel was effective, so that the burden of establishing ineffectiveness rests squarely upon the defendant.

Commonwealth v. Nelson, 389 Pa.Super. 417, 422, 567 A.2d 673, 676 (1989) (citations omitted). To be eligible for relief under the Post Conviction Relief Act, appellant must show by a preponderance of the evidence that the alleged ineffective assistance which led to conviction or sentence was of the type that “in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(ii); Commonwealth v. Weinder, 395 Pa.Super. 608, 577 A.2d 1364 (1990).

The authority of the Attorney General to institute and prosecute criminal cases is embodied in sections 732-205 and 732-206 of the Commonwealth Attorneys Act. The former section lists eight types of crime which the Attorney General is authorized to prosecute. The prosecution of Usa falls into the sixth crime category of section 732-205, which reads as follows:

(а) Attorney General shall have the power to prosecute in any county criminal court the following cases:
******
(б) Criminal charges investigated by and referred to him by a Commonwealth agency arising out of enforcement provisions of the statute charging the agency with a duty to enforce its provision.

71 P.S. § 732-205(a)(6) (Purdon 1990).

The facts of this case indicate that, two weeks after the theft of the nine drums of gold cyanide solution, Mr. Leonard Tritt, Director of Transportation of the DER, placed a call to Special Agent Henry Heisey of the Office of the Attorney General, Environmental Crime Section. (This section of the Attorney General’s Office was known as the Toxic Waste Investigation and Prosecution Section when the case arose.) The gravamen of the call was that environmental laws of the Commonwealth may have been violated inasmuch as the stolen gold cyanide was a hazardous waste.

Mr. Tritt’s call was not followed up by a written referral from the DER to the Attorney General’s Office. Special Agent Heisey testified, however, that he followed normal procedure and opened a file on Usa; the file would have included a written Complaint and Allegation form. This form indicates the date of the opening of the case, who referred the matter to the Office of the Attorney General, the agents and attorneys assigned to the matter, and a brief synopsis of the complaint. At no time during the course of the proceedings was the Commonwealth able to produce the Attorney General’s file on Usa, including the complaint form.

Usa’s current counsel contends that the referral from Mr. Tritt to Special Agent Heisey was insufficient to meet the requirements of section 732-205(a)(6) and invest the Attorney General with authority to prosecute Usa. The Commonwealth Attorneys Act has been narrowly construed so that members of the Office of the Attorney General do not have general arrest powers. Commonwealth v. Galloway, 525 Pa. 12, 13, 574 A.2d 1045, 1046 (1990). Moreover, that statute is the sole grant of authority to the Attorney General. Galloway, 525 Pa. at —, 574 A.2d at 1048. The statutory language applicable to this situation, however, is not as demanding as Usa contends. While Usa might prefer- that agency referrals must be in writing, section 732-205(a)(6) speaks generally of referrals from a Commonwealth agency to the Attorney General. Neither the statute nor, as conceded by Usa’s attorney (Transcript at p. 44), the case law specifically requires that a referral be in writing. This Court has, furthermore, interpreted section 732-206 of the Commonwealth Attorneys Act as authorizing the Attorney General to investigate any criminal offense which he reasonably believes he has the authority to prosecute under section 732-205 of the Act. 71 P.S. § 732-206(a); Commonwealth v. Goodman, 347 Pa.Super. 403, 406, 500 A.2d 1117, 1119 (1985). If the Attorney General’s authority is challenged, he “should be able to produce evidence which would establish by a preponderance of the evidence that a factual basis existed which supported [the reasonable belief of authority to prosecute].” Goodman, 347 Pa.Superior Ct. at 415, 500 A.2d at 1123. The evidence indicates that a telephone referral was made by Mr. Tritt of the DER to the Attorney General’s Office, thereby effectuating the Attorney General’s authority to investigate under section 732-206, and subsequently prosecute under section 732-205(a)(6).

As for Mr. Tritt’s authority to refer this matter to the Attorney General’s Office, we agree with the P.C.R.A. court’s conclusions. The DER deals with the enforcement of environmental protection in the Commonwealth. Obviously, the carrying and theft, and potentially dangerous relocation, of hazardous waste fall within the rubric of the DER transportation division’s responsibilities. The facts of this case lead us to concur with the P.C.R.A. court’s conclusion that the Attorney General, through the person of Special Agent Heisey, could reasonably believe he was authorized to investigate and prosecute Usa given Mr. Tritt’s verbal referral. Usa’s underlying claim of insufficiency based on a lack of authority is, therefore, without arguable merit.

As trial counsel cannot be deemed ineffective for failing to raise a meritless issue, Commonwealth v. Woods, 394 Pa.Super. 223, 575 A.2d 601 (1990), we need not address the remaining components of an ineffectiveness of counsel claim.

Order affirmed.

      . Usa was charged with these crimes under sections 3921, 3922(a)(1), 3925, and 903 respectively of the Pennsylvania Crimes Code. 18 Pa.C.S. §§ 3921, 3922(a)(1), 3925, 903.

      . Commonwealth Attorneys Act of 1980, October 15, P.L. 950, No. 164, codified at 71 P.S. § 732-101 et seq. (Purdon 1990).