author: CERCONE, Judge.

text:
    665 A.2d 833
    Raymond RAYKOVITZ, Appellant, v. K MART CORPORATION.
    Superior Court of Pennsylvania.
    Argued June 28, 1995.
    Filed Sept. 27, 1995.

      David P. Tomaszewski, Wilkes-Barre, for appellant.
    Joseph G. Ferguson, Wilkes-Barre, for appellee.
    Before ROWLEY, President Judge, and HUDOCK and CERCONE, JJ.
   CERCONE, Judge.

This is a direct appeal from the trial court’s order sustaining appellee’s preliminary objections and dismissing appellant’s complaint. We reverse and remand for further proceedings.

Plaintiff/appellant Raymond Raykovitz initially commenced an action by filing a complaint in the federal district court for the Middle District of Pennsylvania alleging that he was wrongfully discharged by K-Mart Corporation in violation of the public policy of Pennsylvania. Mr. Raykovitz had been collecting part-time Unemployment Compensation from a previous full-time job and working part-time at a K-Mart Corporation retail outlet. The manager of the store for which Mr. Raykovitz worked informed plaintiff that he could either stop collecting Unemployment Compensation or quit his job at K-Mart. Mr. Raykovitz asserted that this ultimatum was delivered because the manager disliked filling out the forms required to document for the Unemployment Bureau how much income Mr. Raykovitz received from K-Mart.

The federal district court dismissed the action for failure to meet the $50,000 amount in controversy requirement. Mr. Raykovitz transferred the matter to the Court of Common Pleas of Luzerne County. K-Mart filed preliminary objections alleging that Mr. Raykovitz’s complaint failed to aver sufficient facts to support a claim for wrongful discharge based on a purported violation of public policy. The Honorable Michael T. Conahan dismissed the complaint for failure to set forth a claim indicating that a wrongful discharge occurred under conditions which clearly violated the public policy of Pennsylvania. The instant timely appeal followed in which appellant presents one issue for our consideration: “Do the actions of K-Mart Corporation, in wrongfully discharging Mr. Raykovitz for exercising his rights under the Unemployment Compensation Law, in violation of the clear mandate of public policy stated therein, form a sufficient basis to state a claim for which relief may be granted?”

The outcome of this case is governed by a recent Superior Court decision which held that an employer may not discharge a part-time or occasional employee for seeking to collect Unemployment Compensation benefits. In Highhouse v. Avery Transportation, 443 Pa.Super. 120, 660 A.2d 1374 (1995), Judge Wieand opined as follows:

Generally, there is no common law cause of action for the discharge of an at-will employee. Exceptions to this rule have been recognized in only the most limited of circumstances, where discharges of at-will employees would threaten clear mandates of public policy.
An employer’s liability for wrongful discharge rests on whether a well-recognized facet of public policy is at stake, a policy which strikes at the heart of a citizen’s social right, duties, and responsibilities. The public policy exception is a narrow one. The basis of this limited, nonstatutory cause of action is an appreciation of the fact that the employer’s interest in running his business efficiently, profitably, and as he sees fit is not absolute; important as. it is, it exists in the context of, and must sometimes yield to, other interests, including the interest of the employee in making a living and the interest of the public in seeing to it that the employer does not act abusively and a proper balance between the employer’s and the employee’s interests is preserved.

Id. at 125, 660 A.2d at 1376-77 (citations and quotations omitted).

The right of an employee to receive unemployment compensation is a benefit granted by the Commonwealth. The Unemployment Compensation Law was enacted to alleviate the hardships attendant upon unemployment. Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of the Commonwealth. Statutory law directs that no agreement by an [employee] to waive, release, or commute his rights to unemployment compensation, or any other rights under the Unemployment Compensation Law, shall be valid. Where a statute of the Commonwealth expresses a public policy designed to alleviate a condition of possible distress among the public or a segment thereof and explicitly proscribes waiver of the benefits of the act, no private agreement, however valid between the parties, can operate as such a waiver.
We hold, therefore, that if the appellee-employer discharged appellant because he had made a claim for unemployment compensation during a period when he was not working and earning income, the discharge will constitute a violation of public policy and will support a tort claim for ■wrongful discharge.

Id. at 126-127, 660 A.2d at 1377-78 (citations and quotations omitted; emphasis in original).

The crucial question presented by a demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Scarpitti v. Weborg, 530 Pa. 366, 369, 609 A.2d 147, 148 (1992). Where doubt exists as to whether the demurrer should be sustained, this doubt should be resolved in favor of overruling it. Id. at 369, 609 A.2d at 148-49. Accord Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, 526 Pa. 541, 547, 587 A.2d 1346, 1349, cert. denied, 502 U.S. 867, 112 S.Ct. 196, 116 L.Ed.2d 156 (1991). In reviewing a demurrer, the receiving court must accept the facts and all reasonable inferences to be drawn therefrom as presented by the party against whom the motion was granted. Gabel v. Cambruzzi, 532 Pa. 584, 588, 616 A.2d 1364, 1367 (1992) (citing Muhammad, supra).

In this case, appellant’s complaint averred that he began working part-time at K-Mart in October of 1988. Simultaneously with this part-time job, appellant worked full-time as the Director of the Child Development Council. However, he was furloughed from the Council position in November of 1991. Although appellant continued working part-time at K-Mart, full-time employment was not available with the corporation. Appellant therefore applied for partial unemployment benefits. This claim required the regular processing of certain forms by employees of K-Mart Corporation.

Appellant further asserts in his complaint that in June of 1992, the Bureau of Employment Security informed him that his unemployment compensation benefits would be terminated because of the availability of full-time work at K-Mart. In response to this notice, appellant met with Mr. James Soucy, the manager of the K-Mart store at which he worked. Mr. Soucy allegedly informed appellant that there was no full-time employment available for him at K-Mart. The manager also explained that K-Mart no longer wished to process the weekly paperwork that was required for part-time employees who were receiving partial unemployment benefits due to their layoff from other full-time work. According to appellant, Mr. Soucy stated that if appellant ceased to receive unemployment compensation benefits, he would be welcome to work for K-Mart on a part-time basis, but that he would be fired if he persisted in claiming such benefits. Appellant continued to receive unemployment compensation accruing from his position as Director of the Child Development Council and, as threatened, K-Mart terminated appellant’s part-time employment. See Complaint at ¶¶ 4-12.

Accepting these averments as true, we find that the complaint demonstrates that K-Mart Corporation dismissed appellant from his part-time job in retaliation after he continued to seek the unemployment compensation to which he was entitled under Pennsylvania law. Interpreting the pleadings in the light most favorable to the non-moving party, it is clear that appellant’s factual averments are sufficient under High-house to make out a prima facie case of wrongful discharge. We therefore conclude that the trial court improperly dismissed the complaint. Accordingly, the complaint must be reinstated and the case must be permitted to proceed.

Order vacated. The case is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.


source: Caselaw Access Project

author: TAMILIA, Judge.

license: Public Domain

text:
    665 A.2d 836
    COMMONWEALTH of Pennsylvania v. Alice ARNOLD, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 19, 1995.
    Filed Oct. 3, 1995.

      Catherine M. Baggiano, Philadelphia, for appellant.
    Vernette Dow, Assistant City Solicitor, Philadelphia, for Commonwealth, appellee.
    Before TAMILIA, POPOVICH and BROSKY, JJ.
   TAMILIA, Judge.

Alice Marsha Arnold appeals from the January 13, 1994 Order granting the petition of the Department of Human Services (DHS) for the involuntary termination of parental rights to appellant’s son, Michael. The facts of this case as set forth in detail by DHS and adopted by the trial court are as follows.

On July 22, 1981, appellant, finding herself homeless, unemployed and lacking the financial resources to provide for Michael, signed a voluntary placement agreement with DHS. On that date, Michael was placed in a DHS foster home. On April 28, 1983, appellant went to DHS and requested that her other son, Dorian, be placed in a foster home because she did not have permanent housing. Appellant also said that she needed an extension to remain in the Salvation Army shelter because she had no family members with whom she could stay. DHS contacted the Salvation Army and obtained an extension for appellant and Dorian to continue residing in the shelter. At that time, appellant was also referred to PEC, a program to address her housing needs. On May 6, 1983, appellant again became homeless and was again referred to PEC by DHS. Appellant then began to reside with her maternal grandmother. Appellant once again found herself homeless and, on May 19,1983, signed a voluntary placement agreement for Dorian. Dorian thereafter was placed in Michael’s foster home. Subsequently, appellant attended a Family Service Plan (FSP) meeting with DHS and assured DHS employees that she would continue to look for housing and visit her children. The stated goal of the Plan, to which appellant agreed, was reunification of the family. On December 2,1983, appellant informed DHS that she preferred to live without her children rather than living in public housing. She also stated that she did not want her maternal grandparents considered as an alternative to foster care placement. Thereafter, appellant remained unemployed and lived at a train station, although DHS provided her with information concerning housing and job training. On February 17, 1984, appellant failed to confirm a scheduled visit with her sons. Despite DHS requests that she resume a regular visitation scheduled with her children, appellant again failed, on April 13, 1984, to confirm a scheduled visit with her sons. Between January, 1985, and January, 1986, appellant visited her children only three times. On August 18,1986, Dorian began living with his father in New Jersey and appellant refused to allow Michael to visit Dorian unless she could supervise the visits. No visits were made. In November, 1986, appellant lost contact with DHS and on December 10,1986, DHS concluded that adoption would best serve Michael’s interests. Resurfacing on February 18, 1987, appellant contacted DHS and objected to the adoption, although she scheduled no visitation with Michael. On August 27, 1987, a DHS employee informed appellant, who was still unemployed, that she was entitled to an attorney to represent her concerning the adoption of Michael. DHS was unable to contact Michael’s father. Between January and June, 1988, appellant did not visit Michael. On September 13, 1988, Michael informed DHS that he was unsure of whether he wanted to be adopted. Between January and June of 1989, appellant contacted Michael only twice by telephone. Between July and December of 1989, appellant appeared at the offices of DHS once, but refused to wait until a DHS social worker was available. Appellant next visited Michael on January 17,1991. On April 8,1992, Michael told DHS that he wished to be adopted. Thereafter, appellant missed an FSP meeting concerning the adoption of Michael. She also failed to appear at scheduled court hearings on May 26 or July 6, 1992. Again DHS was unable to locate Michael’s father. Appellant has been unemployed since at least 1988 and homeless for the great majority of Michael’s life.

On January 13, 1994, a trial was held on DHS’s petition to terminate appellant’s parental rights. The court heard testimony from a social worker and supervisor at DHS and a supervisor from the Child Advocate Unit to the effect that appellant, who lived “a nomadic or homeless existence,” had repeatedly failed, despite the efforts of DHS and the Child Advocate Unit, to plan for Michael’s future or obtain suitable housing in the 13 years since Michael had been placed with DHS. Appellant testified that she did not want her parental rights to be terminated, although she admitted that she had done nothing for the child financially and had let others care for his needs for more than a decade. After recognizing the “sensitive nature of terminating the parental rights of the mother,” the trial court held as follows:

This mother may love her son, but she has done nothing to prevent termination of her parental rights. No obstacles were put in the way to prevent her from maintaining a place of importance in the child’s life. All of DHS’s efforts to help her were futile. She didn’t want their help. As a result, mother failed to provide support, emotionally, physically or financially to this child. No bond has been developed between [this] mother and her son.
After finding clear and convincing evidence to terminate the parental rights of the mother, this court concludes that the needs and welfare of this child will be best served by remaining with his foster parent who can provide the child with what he desires, that is, to be adopted and live permanently in a stable, safe, caring environment.

(Slip Op., Kozay, J., 2/15/95, p. 4.) Appellant now presents this appeal from the termination of her parental rights.

Appellant first claims that the Order of the trial court was improper because she has not “evidenced a continued and irremediable parental incapacity such as would justify a decree of involuntary termination of parental rights.” (Appellant’s brief at 6.) Appellant also claims the Order was not supported by clear and convincing evidence.

When reviewing a decision whether to involuntary terminate parental rights, our inquiry is limited to whether the decision of the court below was supported by competent evidence. In Re Adoption of J.J., 511 Pa. 590, 593-594, 515 A.2d 883, 885-886 (1986); In Re Adoption of M.A.R., 405 Pa.Super. 131, 134-135, 591 A.2d 1133, 1135 (1991). Absent an abuse of discretion, an error of law or insufficient evidentiary support for the chancellor’s decision, the decree must stand. Adoption of M.AR., supra at 134-135, 591 A.2d at 1135. Moreover, in a proceeding to terminate involuntarily a parent’s rights, the burden of proof is upon the party seeking termination to establish by “clear and convincing evidence” the existence of grounds for doing so. In Re E.S.M., 424 Pa.Super. 296, 622 A.2d 388 (1993).

Involuntary termination of the rights of a parent is governed by 23 Pa.C.S. § 2511, which, in pertinent part, states:

(a) General rule. — The rights of a parent in regard to a child may be terminated after a petition is filed on any of the following grounds:
(1) the parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claims to a child or has refused or failed to perform parental duties.
(b) Other considerations. — The court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent.

The statute does not require a showing of both an intention to relinquish parental control and a failure to perform parental duties. Baby Boy A v. Catholic Social Services, 512 Pa. 517, 521-523, 517 A.2d 1244, 1246 (1986); In the Matter of the Adoption of David C., 479 Pa. 1, 387 A.2d 804 (1978).

It is important to note that the statutory six-month requirement is not mechanically applied, and parents who fail to meet their parental obligations for a six-month period do not automatically forfeit their parental rights. In Re Adoption of Hamilton, 379 Pa.Super. 274, 280-281, 549 A.2d 1291, 1294 (1988); In Re Adoption of Ostrowski, 324 Pa.Super. 216, 219, 471 A.2d 541, 543 (1984). Rather, the court must examine the individual circumstances of the case and any explanation offered by the parents to determine if that evidence, in light of the totality of the circumstances, clearly warrants involuntary termination of that parent’s rights. Adoption of Hamilton, supra at 280-281, 549 A.2d at 1294; Adoption of Ostrowski supra at 219, 471 A.2d at 543. In making such a determination the court must consider the barriers to exercising his or her parental rights which the parent faced in deciding whether that parent has abandoned the child. In Re Baby Boy H., 401 Pa.Super. 530, 534-535, 585 A.2d 1054, 1056 (1991). To obtain benefit of this excuse, a parent must exhibit reasonable firmness in attempting to overcome the barriers or obstructive behavior of others; he or she must affirmatively demonstrate love, protection and concern for the child. Baby Boy A., supra at 521-523, 517 A.2d at 1246.

Finally, before termination can be ordered, the court must find that: (1) the child has been removed from parental care for at least six months; (2) the conditions which led to the child’s removal or placement continue to exist; (3) the parents cannot or will not remedy the conditions which led to [the] removal or placement within a reasonable period of time; (4) the services reasonably available to the parents are unlikely to remedy the conditions which led to [the] removal or placement within a reasonable period of time; and (5) termination of parental rights would best serve the needs and welfare of the children. In Re: B.J.R., 397 Pa.Super. 11, 579 A.2d 906 (1990). See also 23 Pa.C.S. § 2511(a)(2) and (a)(5).

Instantly, the record reveals that Michael was removed from appellant’s care and placed in a foster home on July 22, 1981. As we previously discussed, the chronic homelessness and unemployment of appellant led to Michael’s placement in foster care. Throughout the past 14 years, appellant has demonstrated a continued inability or unwillingness to improve her financial or residential condition. In view of this prolonged failure to remedy the conditions which caused appellant’s inability to care for Michael, it is extremely unlikely that she will muster, in the future, the desire or resources to adequately care for Michael.

With regard to the services provided or available to appellant through DHS, our review of the record indicates that appellant was uncooperative and resistant to the agency’s attempts to assist appellant. Moreover, appellant has repeatedly failed to visit Michael on a relatively consistent basis or to attend DHS meetings concerning his best interests. Under these circumstances, it is unlikely that further agency programs or services would be effective in remedying the conditions which led to Michael’s placement.

As to the fifth requirement of In Re: B.J.R., supra, namely, that the termination furthers the best interests of Michael, the record abundantly supports the trial court’s decision. Not only has Michael manifested a desire to be adopted by the parents with whom he has resided since 1981, but we find that his foster home is indeed a “stable, safe, caring environment.” (Slip Op. at 4.) This stands in sharp contrast to the “nomadic or homeless existence” which appellant steadfastly refuses to abandon. Hence, we find that the best interests of Michael are effectively served by the termination of appellant’s parental rights, thus paving the way for his adoption. This conclusion will allow Michael to enjoy the love and stability offered by the only parents he has ever known, in the only home he has ever known. We note that we are not terminating appellant’s rights solely because of her financial or residential status. Rather, our decision is based upon appellant’s disregard of her parental duties. In sum, our review of the record reveals not a shred of evidence that Michael’s “best interests” would be served by preserving appellant’s parental rights.

Finally, we note that in support of her arguments on appeal, appellant states, without offering a single supporting circumstance, that she is now “trying to remedy her financial sitúation in order to be able to eventually provide for the child” (Appellant’s brief at 6), and that she “has always been interested in [Michael’s] welfare.” (Appellant’s brief at 7.)

We have consistently held that “mere renewal of interest and expression of desire for the return of a discarded child do not negate the abandonment____” Baby Boy A, supra at 523-524, 517 A.2d at 1247, quoting In Re In the Matter of J.F., 487 Pa. 115, 124-125, 408 A.2d 1382, 1387 (1979). A parent cannot protect parental rights by merely stating .that she does not wish to have her parental rights terminated. In Re E.S.M., supra. Rather, a parent has an affirmative obligation to act in the child’s best interest. Id. As we stated in Adoption of Hamilton, supra at 274, 549 A.2d at 1291:

To be legally significant, [parent/child] contact must be steady and consistent over a period of time, contribute to the psychological health of the child, and must demonstrate a serious intent on the part of the parent to recultivate a parent-child relationship and must also demonstrate a willingness and capacity to undertake the parental role.

Instantly, despite her claims to the contrary, the record overwhelmingly demonstrates that appellant has not shown a “willingness and capacity” to assume her parental responsibilities.

Based on the foregoing, we affirm the January 13, 1994 Decree terminating appellant’s parental rights.

Decree affirmed.


author: DEL SOLE, Judge:

text:
    665 A.2d 840
    In re ADOPTION OF L.D.S., a Minor. Appeal of L.A.S., Natural Mother.
    Superior Court of Pennsylvania.
    Argued May 25, 1995.
    Filed Oct. 6, 1995.
    Christine Nebel, Butler, for appellant.

      Cathy S. Boyer, Butler, for appellee.
    Daniel E. Houlihan, Zelienople, for Butler County Children & Youth Services, participating party.
    Before WIEAND, DEL SOLE and CERCONE, JJ.
   DEL SOLE, Judge:

L.A.S. appeals from a decree of the Butler County Orphan’s Court granting a petition to involuntarily terminate her parental rights to her three year old daughter, L.D.S.

Appellant presents two issues for our consideration:

I. Did the trial court improperly apply the requisite legal tests in determining whether the parental rights of L.A.S. Appellant, should be terminated?
II. Were several of the findings of fact made by the trial court supported by the evidence?

“Absent an abuse of discretion, an error of law or insufficient evidentiary support for the findings of the Orphan’s Court, an appellate court will not reverse a hearing court’s order to terminate.” In re Shives, 363 Pa.Super. 225, 227-228, 525 A.2d 801, 802 (1987). Upon review of a decree involuntarily terminating parental rights, we are limited to a determination of whether the decision of the Orphan’s Court is supported by competent evidence. In re E.S.M., 424 Pa.Super. 296, 622 A.2d 388 (1993).

Instantly, the trial court found that the Butler County Children and Youth Services established by clear and convincing evidence that Appellant’s parental rights should be terminated pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2) and (5) of the Pennsylvania Adoption Act, which states:

(a) General rule-The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

With respect to Appellant’s first claim, she argues that the trial court improperly found that the requirements of section 2511(a)(1) had been met in order to terminate her parental rights. Appellant states correctly that under 2511(a)(1), the court must find by clear and convincing evidence that the parent, by conduct continuing for a period of at least six months, either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties. Appellant contends that there has never been a six month period where she did not contact the Butler County Children and Youth Services about her daughter.

Appellant emphasizes the trial court’s statement in its Opinion that “the record reflects that the longest continuous period of time that transpired was between Respondent’s July 31, 1991 phone call and her January 6,1992 phone call, a period of approximately five months.” (Trial ct. op. 3-16-94 at 9). Appellant asserts that regardless of this finding, the court misinterpreted section 2511(a)(1) by determining that the six-month requirement had been met.

Even though the trial court acknowledged that only five continuous months transpired between Appellant’s contacts to the Children and Youth Agency, the court also found that over a period of approximately eight months, from May, 1991 to January, 1992 when Appellant was served with the petition to involuntarily terminate her parental rights, Appellant saw her child twice and contacted the Agency two times. The two times that Appellant saw L.D.S. occurred within the first six weeks of the eight month period, and she contacted the Agency by phone in July 1991 and January 1992. The case worker, Cindy Wagner, testified that her records indicated that Appellant called the agency in July 1991 and left a message because the case worker handling the case at the time was not in the office. Appellant did not leave an address or telephone number at that time. Ms. Wagner further testified that during her conversation with Appellant in January 1992, Appellant merely called to inform her that she could not attend the upcoming juvenile court hearing because she would be out of town; Appellant did not inquire about the well-being of L.D.S.

Appellant’s two telephone calls to Children and Youth Services during an eight month period is not sufficient to stop the six month period from running under section 2511(a)(1). As long as Appellant refused or failed to perform her parental duties for six months, the requirements of 2511(a)(1) are met. Our supreme court stated in In re Burns, 474 Pa. 615, 379 A.2d 535 (1977):

Parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child. Thus, this Court has held that the parental obligation is a positive duty which requires affirmative performance. This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child. Because a child needs more than a benefactor, parental duty requires that a parent “exert himself to take and maintain a place of importance in the child’s life.” (Citations omitted).

Id., 474 Pa. at 624-625, 379 A.2d at 540.

For approximately eight months, Appellant failed to fulfill her parental obligations to L.D.S. and this lack of concern for her child is not negated by the two telephone contacts to Children and Youth Services. In In re Adoption of Infant Female F., 488 Pa. 189, 411 A.2d 1202 (1980), the mother signed a petition for voluntary relinquishment of her parental rights, but, when the court learned that she later changed her mind, the petition was denied. Subsequently, a petition for involuntary termination was filed and was granted. Our supreme court affirmed the decision to terminate the mother’s parental rights, despite her one phone call to the Agency during the six month period, based on the court’s findings that mother displayed a settled purpose to relinquish her parental claim and she continuously neglected to provide the child with essential care and subsistence.

Appellant’s two brief phone contacts does not constitute the love, protection, guidance and support that L.D.S. needs. After reviewing Appellant’s claims of error, the record and the applicable law in this case, we conclude that not only was the six month requirement specified at section 2511(a)(1) met in this case, but the requisites of sections (a)(2) and (a)(5) have been satisfied as well. The Honorable Martin J. O’Brien provided a thorough analysis of the issues and the law in this case in his Opinion dated March 16, 1994 and it is supported by competent evidence. Finding no abuse of discretion or error of law, the decree terminating the parental rights of Appellant is affirmed.

Decree affirmed.

      . L.D.S. was placed into custody of the Butler County Children and Youth Services after a fire occurred at the Sailey household on May 7, 1991, killing Appellant's husband and two of her three children. L.D.S. was approximately five months old at the time of the fire and she suffered bums over a significant portion of her body. L.D.S. was initially treated at West Penn Hospital and then placed in protective custody with the Children and Youth Services on May 20, 1991. Due to her angiy, combative state at the scene of the fire, Appellant was involuntarily admitted to the psychiatric unit of Butler Memorial Hospital from May 7, 1991 until May 17, 1991. It was later revealed that she was intoxicated at the time of the fire and Appellant admits to having a problem with alcohol. She was subsequently transferred to Parkside Rehabilitative Unit and she signed herself out of that facility on June 2, 1991.


author: CAVANAUGH, Judge:

text:
    665 A.2d 843
    Donna RYAN, Executrix of the Estate of R. Bruce Ryan, Deceased, and Donna Ryan, In Her Own Right v. GAF CORPORATION, Raymark Industries, Inc., Celotex Corporation, Successor-In-Interest To Philip Carey Manufacturing Company, Philip Carey Corporation, Briggs Manufacturing Company and/or Panacon Corporation, Keene Building Products Corp., Eagle-Picher Industries, Inc., Owens-Corning Fiberglas Corp., Owens-Illinois, Inc., Garlock, Inc., Pittsburgh Corning Corporation, Armstrong World Industries, Inc., Nicolet Industries, Inc., Successor-In-Interest to Keasby & Mattison; Combustion Engineering, Inc., Fibreboard Corporation, Carey-Canada, Inc., Anchor Packing Company, Standard Asbestos Manufacturing and Insulating Company; Flexitallic Gasket Company, General Electric Company Wire and Cable Products Department, and Marmon Group, Inc., Successor-In-Interest to Cerro Wire & Cable Co., Division of Cerro Marmon Co., and The Rockbestos Company, Inc. v. CONTINENTAL WIRE & CABLE CO. and Anaconda Power & Cable Appeal of OWENS-CORNING FIBERGLAS CORPORATION.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1995.
    Filed May 16, 1995.

      Patrick R. Riley, Pittsburgh, for appellant.
    David P. Chervenick, Pittsburgh, for Ryan, appellee.
    Before CAVANAUGH, CIRILLO and SAYLOR, JJ.
   CAVANAUGH, Judge:

Owens-Coming Fiberglas Corporation (“OCF”) appeals from an order which denied its motion for post-trial relief. We remand with instructions.

The procedural history of this case can be summarized as follows. Following a jury trial, a verdict was returned in favor of plaintiffs and against OCF and Owens-Illinois, Inc. Post-verdict motions were filed, but the trial court entered judgment in favor of plaintiffs and against OCF and Owens-Illinois, without first disposing of these motions. Both OCF and Owens-Illinois appealed. On appeal, this Court vacated the trial court’s entry of judgment and remanded for consideration of defendants’ post-verdict motions. Following remand, the trial court denied defendants’ motions, and both OCF and Owens-Illinois appealed. Judgment has not been entered on the jury’s verdict.

Recently, in Johnston the Florist, Inc. v. Tedco Construction Co., 657 A.2d 511 (Pa.Super.1995), this Court, sitting en banc, examined the question of the Court’s authority to address the merits of an appeal, when that appeal has been taken from an order upon which judgment has not been entered. The Court stated:

“Generally, an appeal will only be permitted from a final order unless otherwise permitted by statute or rule of court.” Grove North America v. Arrow Lift [ & Construction Equipment Co., Inc.], 421 Pa.Super. 12, 17, 617 A.2d 369, 371 (1992). An appeal from an order denying post-trial motions is interlocutory. Pa.R.A.P. 301(a), (c) and (d). Thus, it follows that an appeal to this Court can only lie from judgments entered subsequent to the trial court’s disposition of any post-verdict motions, not from an order denying post-trial motions. Davanzo v. Finelli, 293 Pa.Super. 70, 437 A.2d 995 (1981). Because the entry of judgment was considered to be a prerequisite to the exercise of this Court’s jurisdiction, it was long this Court’s policy to quash an appeal from an order upon which judgment had not been entered. See Basalyga v. Hohensee, 431 Pa. 191, 245 A.2d 255 (1968); Enock v. Reifer, 293 Pa.Super. 141, 437 A.2d 1245 (1981); Hassler v. Columbia Gas Transmission Corp., 294 Pa.Super. 86, 439 A.2d 762 (1982); Crosby v. Commonwealth, Dept. of Transp., 378 Pa.Super. 72, 548 A.2d 281 (1988), alloc. den., 522 Pa. 576, 559 A.2d 37 (1989).

Id. at 514. The Court then went on to hold that where our procedural rules require the entry of judgment, such action is a prerequisite to the exercise of judicial review, and that, in the absence of an entry of judgment, there is no authority for this Court to review the merits of an appeal. Id. at 515. Moreover, where the rules require the entry of judgment, and such action has not been taken prior to the filing of an appeal, this Court may take such action as it deems appropriate, including: quashal of the appeal, dismissal of the appeal, or remand of the matter to the lower court so that judgment may be entered. Id. at 515 n. 2; Pa.R.A.P. 902 and comment.

In the present case, as noted supra, judgment was not entered in the lower court, but rather, OCF filed its appeal from the trial court’s order denying OCF’s pos1>trial motions. Thus, OCF was not in compliance with our rules of procedure. Moreover, from our review of the record and the briefs of the parties, it is evident that OCF was aware that entry of judgment was required prior to filing an appeal in this case. As such, we remand this case to the lower court in order that the omitted procedural step, the entry of judgment, may be taken. OCF is directed to enter judgment on the appropriate docket of the lower court within thirty (30) days of this decision, and to forthwith return the record to this Court including certification that judgment has been entered.

Case remanded with instructions. Court and panel jurisdiction retained. )

      . All of the original defendants, except OCF, Owens-Illinois and Keene Building Products Corp., either settled and/or were dismissed from the case prior to trial. The jury entered a verdict in favor of Keene Building Products Corp. and against plaintiffs.

      . Owens-Illinois is no longer an active litigant in this case, as it subsequently withdrew its appeal.


author: ROWLEY, President Judge: HOFFMAN, Judge,

text:
    665 A.2d 1185
    COMMONWEALTH of Pennsylvania v. William FIORE, Appellant.
    Superior Court of Pennsylvania.
    Argued March 22, 1995.
    Filed Sept. 20, 1995.

      Harold Gondelman, Pittsburgh, for appellant.
    John M. Popilock, Deputy Attorney General, Harrisburg, for Commonwealth, appellee.
    Before ROWLEY, President Judge, and KELLY and HOFFMAN, JJ.
   ROWLEY, President Judge:

Appellant, William Fiore, appeals from the trial court’s order of August 18, 1994, denying his petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. At the heart of this appeal is the fact that although appellant’s employee and co-defendant, David Scar-pone, has obtained from the courts of this Commonwealth a reversal of his conviction on the charge of operating a hazardous waste facility without a permit, appellant has failed to obtain the same relief. Such a result, appellant contends, deprives him of the due process of law and the equal protection of the laws and subjects him to cruel and unusual punishment.

Appellant maintains that, under the PCRA, we are empowered to grant the relief that he seeks in the form of a writ of coram nobis. After a careful review of the record and appropriate case law, however, we conclude that the relief sought by appellant is not available from this Court.

Appellant’s argument rests on a complex procedural history. Appellant, owner of Municipal and Industrial Disposal Company (MIDC), a waste disposal facility, was charged with over 150 criminal and environmental law violations under the Solid Waste Management Act (SWMA), 35 P.S. § 6018.101 et seq., and related statutes. Scarpone, appellant’s employee and general manager, was also charged with various violations, including conspiracy, 18 Pa.C.S. § 903, and obstructing the administration of law or other governmental function, 18 Pa. C.S. § 5101. Both individuals were charged with violating 35 P.S. § 6018.401(a), operating a hazardous waste disposal facility without a permit, the offense at issue in this appeal. This offense is a felony of the second degree pursuant to § 6018.606(f).

In February 1986, appellant and Scarpone were jointly tried by a jury in a trial limited to charges against both defendants. Both were found guilty of violating § 6018.401(a), among other charges. In a non-jury trial in July, 1986, appellant was tried on those charges which did not involve Scarpone. This trial also resulted in appellant’s conviction of, inter alia, violating § 6018.401(a). As a result of both trials, appellant was convicted on a total of sixty counts. Post-trial motions were filed and denied.

A single proceeding was held on April 10, 1987, for the imposition of sentence on appellant’s convictions resulting from both trials. Although appellant had been convicted on sixty counts, the trial court sentenced him on only the following three:

Count 1, Trial 1 (violating § 6018.401(a)): two and one-half to five years imprisonment, ten years probation, and a fine of $100,000;
Count 2, Trial 2 (violating § 6018.401(a)): two and one-half to five years imprisonment and ten years probation, to run consecutive to the sentence imposed at Count 1, and a fine of $100,000; and
Count 5, Trial 1 (perjury, 18 Pa.C.S. § 4902): one to two years imprisonment and five years probation, to run consecutive to the previous sentences.

The trial court explained that “I do not mean to minimize the other counts. We feel that this penalty is severe and we therefore direct the Clerk to enter no further penalty on all remaining counts.” Notes of Testimony at 69-70. Appellant filed a motion to modify sentence, which was denied. Appellant then appealed to this Court.

On September 28, 1987, this Court, acting sua sponte and citing the Commonwealth Court’s exclusive jurisdiction over appeals involving criminal proceedings arising from violations of regulatory statutes administered by Commonwealth agencies, 42 Pa.C.S. § 762(a)(2)(ii), transferred appellant’s appeal to the Commonwealth Court. Appellant petitioned the Commonwealth Court to return his appeal to this Court. The Commonwealth Court granted appellant’s petition on February 29, 1988, noting that the facts and issues of the present appeal were closely related to another appeal taken by appellant to this Court.

In an unpublished memorandum decision-filed May 12,1989, this Court affirmed appellant’s judgment of sentence. Commonwealth v. Fiore, 391 Pa.Super. 634, 563 A.2d 189 (1989) 485 Pittsburgh 1988. Noting that appellant had raised 22 issues on appeal, all of which had been addressed by the trial court in a comprehensive opinion, the Court affirmed on the trial court’s opinion. Because appellant had failed to include in his brief a statement pursuant to Pa.R.AP. 2119(f) and the Commonwealth had objected to its omission, the Court also quashed the appeal insofar as it involved the alleged excessiveness of the sentence.

Appellant then petitioned the Supreme Court for allowance of appeal. In an order entered March 13, 1990, the Supreme Court denied the petition (No. 310 W.D. AHoc.Dkt.1989), thereby concluding appellant’s direct appeal.

Meanwhüe, Scarpone appealed to this Court from his judgment of sentence. As was the case with appellant, this Court transferred the appeal sua sponte to the Commonwealth Court. Scarpone did not seek to have the appeal returned to this Court.

In a decision filed on August 5,1991, more than a year after the conclusion of appeHant’s direct appeal, the Commonwealth Court reversed Scarpone’s conviction on the charge of causing and assisting in the operation of a hazardous waste facfiity without a permit, as well as his conviction on the related charge of conspiracy. Scarpone v. Commonwealth, 141 Pa. Commw. 560, 596 A.2d 892 (1991). The Court held that the Department of Environmental Resources had issued a vaHd permit to MIDC, the waste facility in question. The Court reasoned that the alteration of a monitoring pipe, although a clear violation of the condition of the permit, did not result in the operation of a new facility that did not have a permit. Because MIDC had a vaHd permit, the Court held, Scarpone could not be convicted of causing and operating a waste disposal plant without a permit. The Court confirmed Scar-pone’s conviction on the charge of obstructing the administration of law or other governmental function.

Scarpone petitioned the Supreme Court for allowance of appeal in order to challenge the affirmance of his conviction on the obstruction charge. The Commonwealth, seeking to challenge the reversal of Scarpone’s conviction on the permit charge, filed a cross-petition for allowance of appeal. The Supreme Court granted both petitions.

Although appellant’s direct appeal was already concluded, he filed with the Supreme Court an application for extraordinary relief (No. 9 W.D.Misc.Dkt.1992), asking the Court to take jurisdiction of his case pursuant to the Court’s King’s Bench powers, 42 Pa.C.S. § 726, and to consolidate it with Scarpone’s appeal “so that a uniform interpretation in the Commonwealth of the Solid Waste Management Act and the penal provisions thereunder will be obtained.” Application for Extraordinary Relief at 5. The Court denied the application on March 25,1992.

In an opinion filed on December 15, 1993, the Supreme Court affirmed the Commonwealth Court’s decision in Scarpone’s case. Commonwealth v. Scarpone, 535 Pa. 273, 634 A.2d 1109 (1993). The Court explained the situation as follows:

We granted review in this case because of a conflict between the intermediate appellate courts in deciding the permit issue. Scarpone and his co-defendant Fiore were both charged with and found guilty of operating without a permit.
Scarpone took his appeal to the Commonwealth Court and that court found it impossible to conclude that the alteration of the pipe resulted in the operation of a new facility for which no permit had been issued. Although the facility may have acted in breach of the permit it held, the court would not hold that this was tantamount to acting without any permit.
Fiore took his appeal to the Superior Court and raised the issue by way of a sufficiency of the evidence argument. The Superior Court found the evidence sufficient and issued an unpublished memorandum opinion upholding his conviction of operating a hazardous waste facility without a permit. The two courts are clearly in conflict and this leaves the Attorney General’s office ill-advised on how it should proceed in such situations.
We find that the Commonwealth did not make out the crime of operating a waste disposal facility without a permit against Mr. Scarpone under the statute. Simply put, Mr. Scarpone did have a permit. A more appropriate charge may have been brought under alternative provisions of the statute____ [T]he SWMA has specific provisions providing a penalty for violations of the conditions of a permit. Under such circumstances, the Commonwealth must adhere to the legislative scheme in pursuing criminal charges. The alteration of the monitoring pipe here was execrable and constituted a clear violation of the conditions of the permit. But to conclude that the alteration constituted the operation of a new facility without a permit. is a bald fiction we cannot endorse. Penal provisions of a statute must be strictly construed under 1 Pa.C.S. § 1928(b)(1).
We agree with the Commonwealth Court that the statutory language here cannot be stretched to include criminal activities which clearly fall under another statutory section or subsection. The Commonwealth Court was right in . reversing Mr. Scarpone’s conviction of operating without a permit when the facility clearly had one.

Id. at 278-29, 634 A.2d at 1112 (emphasis in original). The Supreme Court affirmed Scarpone’s conviction on the charge of obstructing the administration of law.

On January 27, 1993, appellant filed an “emergency application for extraordinary relief’ (No. 7 W.D.Misc.Dkt.1994) with the Supreme Court. Again he urged the Court to utilize its King’s Bench powers “to correct the anomalous situation of [appellant’s] employee being discharged of criminal conduct under the identical facts and circumstances causing [appellant] to be imprisoned.” Emergency Application for Extraordinary Relief at 9-10. The Supreme Court denied appellant’s emergency application on March 22,1994.

Appellant then filed the petition for post-conviction relief which has led to the present appeal. In his PCRA petition, appellant urged the trial court to vacate the sentences imposed on the charges of operating a hazardous waste facility without a permit because “[w]hat [appellant] is charged with having done is not a crime as decided by the Supreme Court of Pennsylvania on these very facts.” Id. at 6. In an order entered August 18, 1994, the trial court denied appellant’s petition for post-conviction relief. This timely appeal followed.

We turn first to appellant’s contention that the common law remedy of a writ of coram nobis continues to be available under the PCRA and that he is entitled to that remedy. The term “coram nobis” is defined as “in our presence” or “before us,” and “[t]he essence of coram nobis is that it is addressed to the very court which renders the judgment in which injustice is alleged to have been done, in contrast to appeals or review directed to another court....” Black’s Law Dictionary 304-05 (5th ed. 1979). In 1945 this Court explained the nature of the writ as follows:

The writ of error coram nobis is an ancient common law writ, the purpose of which is to bring before a court a judgment previously rendered by it for review or modification, on account of some error of fact and not of law affecting the validity and regularity of the proceedings, and which was not brought into the issue at the trial thereof.

Commonwealth v. Morrison, 158 Pa.Super. 311, 313, 44 A.2d 850, 851 (1945) (citation omitted; emphasis added). This Court suggested that the writ would lie, for example, where the error concerned the status of a party, such as an infant, or where an accused was forced to plead guilty owing to a well-founded fear of mob violence. Id. The Supreme Court has emphasized that the writ of error coram nobis “is a procedural tool whose ‘purpose ... is to correct errors of fact only---Commonwealth v. Mangini, 478 Pa. 147, 163, 386 A.2d 482, 490 (1978), quoting Commonwealth v. Orsino, 197 Pa.Super. 306, 313-14, 178 A.2d 843, 846 (1962). Moreover,

[a] review of the cases in which the writ of coram nobis has been successfully invoked shows that the true rule governing the use of the writ is that one which is aptly expressed in section 94 of Freeman on Judgments, quoted in Sanders v. State, 85 Ind. 318, 44 Am.Rep. 29, 35, as follows: “The writ of error coram nobis is not intended to authorize any court to review and revise its opinions; but only to enable it to recall some adjudication, made while some fact existed which if before the court would have prevented the rendition of the judgment, and which without any fault or negligence of the party was not presented to the court.”

Commonwealth v. Harris, 351 Pa. 325, 329-30, 41 A.2d 688, 691 (1945) (emphasis added). The writ of error coram nobis is generally regarded as an extraordinary remedy. Commonwealth v. Mangini, supra. It is not issued, for example, simply because a witness later recants or changes his or her testimony, for “there would be no finality to any conviction of crime if verdicts and judgments could be thus easily nullified.” Commonwealth v. Mathews, 356 Pa. 100, 102, 51 A.2d 609, 610 (1947), cited in McKnight v. Commonwealth, Department of Transportation, 121 Pa.Commw. 28, 549 A.2d 1356, 1358-59 (1988).

The case law just cited suggests that even if the remedy of coram nobis were available to appellant in the present procedural context, he would nevertheless not qualify for it because the issue that he raises is not a factual one. However, in support of his claim that he is entitled, via his PCRA petition, to the remedy of coram nobis, appellant directs us to the opinions of the Pennsylvania Supreme Court in Commonwealth v. Sheehan, 446 Pa. 35, 285 A.2d 465 (1971), and Commonwealth v. Conner, 462 Pa. 282, 341 A.2d 81 (1975).

In Sheehan, the appellant, while not represented by counsel, pled guilty to a charge of driving while intoxicated and paid a fine of $200. When he was charged with a second such offense five years later and learned that conviction for a second offense would merit a term of imprisonment, he petitioned for relief pursuant to the then-effective Post Conviction Hearing Act (PCHA), predecessor to the PCRA, asserting that his first conviction was invalid because his constitutional right to counsel had been denied. The trial court denied the petition, noting that appellant failed to meet the PCHA’s requirement that, to be eligible for relief, a petitioner must be incarcerated or on probation or parole. This Court affirmed.

On appeal to the Supreme Court, appellant argued that if his claim was not cognizable under the PCHA, his petition should be treated as one for a writ of coram nobis or habeas corpus. The Supreme Court observed that

[t]he intent of the [Post Conviction Hearing] Act ... was not to abolish the common law remedies of habeas corpus or coram nobis, but rather to promulgate an exclusive, well-defined procedure for the presentation of those grievances set forth in the Act by an aggrieved person who is under the duress of punishment, whether in prison or on parole or probation. All claims previously cognizable on a common law writ, in circumstances not covered by the terms of the Act, may still be litigated by means of the common law writ.

Sheehan, 446 Pa. at 39, 285 A.2d at 467 (citations and footnote omitted). After noting the limited scope of coram nobis, the Court took guidance from the Supreme Court of the United States:

[A]fter noting that courts should act by whatever procedural channels appear necessary to do justice when the record makes plain a right to relief, the United States Supreme Court in United States v. Morgan, 346 U.S. 502, 505, [74 S.Ct. 247, 249], 98 L.Ed. 248, 253 (1954)[,] held that, on an allegation of the denial of right to counsel, coram nobis would lie to challenge a conviction, the sentence of which had been fully satisfied. The Court laid particular emphasis on a quotation from 2 Tidd’s Practice (4th Am.Ed.) 1136, 1137, which stated that coram nobis is available to cure errors of fact or process. See [Judge Hoffman’s dissenting opinion in Commonwealth v. Sheehan, 216 Pa.Super. 26, 260 A.2d 496 (1969),] and cases cited therein. Likewise, the Court in Morgan noted that coram nobis as applied in American jurisdictions had not been confined strictly to matters of fact.

Id. at 40, 285 A.2d at 468. Our Supreme Court concluded that appellant’s petition should be treated as a petition for a writ of coram nobis and remanded the case to the trial court for a hearing to determine whether appellant had knowingly waived his right to counsel.

The appellant in Conner sought relief in the form of a writ of coram nobis after his direct appeal from a judgment of sentence for voluntary manslaughter proved unsuccessful. The trial court denied the relief sought. On appeal, the Supreme Court acknowledged that appellant should have sought relief under the PCHA. Nevertheless, because the trial court had considered the merits of appellant’s claims, the Supreme Court decided in the interest of judicial economy to treat the claims as having been raised under the PCHA. In doing so, the Court relied upon its earlier opinion in Sheehan and upon the reasoning of the United States Supreme Court in Morgan, supra, that “courts should act by whatever procedural channels appear necessary to do justice when the record makes plain a right to relief.” Conner, 462 Pa. at 286, 341 A.2d at 83.

This Court subsequently interpreted the Supreme Court’s decision in Sheehan as having “expanded the scope of a writ of coram nobis in Pennsylvania from being restricted to challenges on the validity of a judgment based on facts not previously before the court, to include matters of law.” Commonwealth v. Fay, 294 Pa.Super. 332, 336, 439 A.2d 1227, 1229 (1982). See also Commonwealth v. Bucci, 283 Pa.Super. 125, 423 A.2d 747 (1980) (PCHA did not abrogate common law writs which cover situations not covered by PCHA); Commonwealth v. Mervin, 263 Pa.Super. 498, 398 A.2d 687 (1979) (writ of error coram nobis still exists, but has been supplanted by PCHA except in rarest situation).

Appellant is not proceeding under the PCHA, however, but under its successor statute, the PCRA, which went into effect April 13,1988. This Court en banc has observed that

Commonwealth v. Hayes, 408 Pa.Super. 68, 72, 596 A.2d 195, 197 (1991) (en banc), appeal denied, 529 Pa. 646, 602 A.2d 856 (1992). Accordingly, we are required to decide whether coram nobis survives as an alternative remedy outside of the PCRA

We note, first, a difference in the wording of the sections setting forth the scope of the former and the present statutes. The drafters of the PCHA described its scope as follows:

This subchapter establishes a post conviction procedure for providing relief from convictions obtained and sentences imposed without due process of law. The procedure established in this subchapter shall encompass all common law and statutory procedures for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis. However, nothing in this subchapter limits the availability of remedies in the trial court or on direct appeal.

42 Pa.C.S. § 9542 (repealed) (emphasis added). The drafters of the PCRA chose the following language:

This subchapter provides for an action by which persons convicted of crimes they did not commit or serving unlawful sentences may obtain collateral relief and for an action by which persons can raise claims which are properly a basis for Federal habeas corpus relief. The action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis. This subchapter is not intended to limit the availability of remedies in the trial court or on direct appeal from the judgment of sentence, nor is this subchapter intended to provide a means for raising issues waived in prior proceedings.

42 Pa.C.S. § 9542 (emphasis added).

In Commonwealth v. Hayes, supra, this Court en banc addressed the significance of the change in wording. In that case, as in Sheehan, the defendant filed a petition for post-conviction relief in order to challenge a conviction, the sentence for which had expired, but which had led to a collateral consequence in the form of an increased sentence for a later offense. The eligibility provision of the PCHA had required that a petitioner be “incarcerated in this Commonwealth under a sentence of death or imprisonment or on parole or probation.” 42 Pa.C.S. § 9543(2). Because the appellant was proceeding under the PCRA, however, he was required to be “currently serving a sentence of imprisonment, probation or parole for the crime.... ” 42 Pa.C.S. § 9543(a)(l)(i).

In analyzing this change, the Court first applied two principles of statutory interpretation: 1) general and plain words must be given their common and accepted meaning; and 2) it must be assumed that the drafters of a statute intended every word of it to have effect. The conclusion reached was that “the language changes in the PCRA were deliberately made to confront and alter the collateral criminal consequences rule” and that to interject that rule into the PCRA would mean ignoring “the legislative intent and the plain meaning of the word changes made in the PCRA.” Id. at 76, 596 A.2d at 199 (footnote omitted).

As further support for its conclusion, the Court pointed to the legislature’s decision to declare a petition pursuant to the PCRA “the sole means of obtaining collateral relief----” 42 Pa.C.S. § 9542 (emphasis added). “This statutory language clearly evidences a legislative intent to change the prior decisional law and restrict the scope of collateral post conviction challenges.” Id. at 77, 596 A.2d at 200.

Although this Court en banc was not directly presented in Hayes with the question whether the common law writ of coram nobis survives as a post-conviction remedy outside the PCRA, the conclusion that the writ does not survive follows directly from the Court’s interpretation of the drafters’ intent. If we were to allow appellant to petition for a writ of coram nobis without satisfying the eligibility requirements of the PCRA, we will have created a second means of obtaining collateral relief, thereby contravening the legislative intent that the PCRA be the sole means of obtaining such relief. Accordingly, we conclude that appellant is not eligible for post-conviction relief in any form unless he meets the eligibility requirements set forth in the PCRA.

One such requirement is the obligation to plead and prove by a preponderance of the evidence that the allegation of error has not been previously litigated. 42 Pa.C.S. § 9543(a)(3). Section 9544 explains in pertinent part that “an issue has been previously litigated if ... the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue____” 42 Pa.C.S. § 9544(a)(2).

We agree with the trial court that appellant has failed to meet this requirement. As noted earlier, this Court disposed of the twenty-two issues raised in appellant’s direct appeal by affirming on the trial court’s opinion. The trial court addressed the present issue in the following terms:

The defendant alleges that the evidence was insufficient to prove that he operated a hazardous waste disposal facility without a permit from the [DER] for such disposal facility.
In essence, the defendant contends that he possessed a permit issued by the DER for his waste disposal facility during the time that he altered the groundwater monitoring system ... and, as such, the existence of that permit constitutes an absolute defense to the charges. We find the defendant’s contention unpersuasive.
[T]he defendant’s alterations of the 810 pipe represented such a significant departure from the terms of the existing permit that the operation of the hazardous waste facility was “un-permitted” after the alterations were undertaken by the defendant. Contrary to the defendant’s contention, he did not possess all necessary permits; specifically, he did not possess a permit which allowed the disposal of hazardous waste after the monitoring system was altered. Therefore, we reject the defendant’s contention as incorrect.

Trial Court Opinion, 1/19/88, at 44-48. The Supreme Court declined to allow appellant to appeal from this Court’s decision. Appellant now asks this Court to grant him, in a post-conviction proceeding, the relief that was denied him on direct appeal. It is settled law that an issue litigated on direct appeal cannot be litigated again in a post-conviction proceeding. Commonwealth v. Szuchon, 534 Pa. 483, 486, 633 A.2d 1098, 1099 (1993). Accordingly, appellant is not entitled to relief under the PCRA.

In reaching this result, we have not overlooked the uniqueness of appellant’s situation. Appellant was convicted of operating a waste management facility without a permit, and his conviction was affirmed. His general manager, David Scarpone, was convicted of the same offense, and his conviction was reversed because, the appellate courts concluded, he had a permit. The permit in question was the same, however; it was appellant’s as well as Scarpone’s. Unsurprisingly, appellant views the situation as unjust.

Nevertheless, the crucial fact is that appellant’s direct appeal was no longer pending when the Supreme Court made the ruling which appellant now seeks to have applied to his case. In Commonwealth v. Gillespie, 512 Pa. 349, 516 A.2d 1180 (1986), our Supreme Court considered “whether full retroactivity of a case encompasses a collateral attack on the conviction.” Id. at 354, 516 A.2d at 1181. The Court held that Id. at 355, 516 A.2d at 1183. Accord Commonwealth v. Peterkin, 538 Pa. 455, 649 A.2d 121 (1994); Commonwealth v. Galloway, 433 Pa.Super. 222, 640 A.2d 454 (1994), appeal denied, 538 Pa. 666, 649 A.2d 668 (1994); Commonwealth v. Riggins, 374 Pa.Super. 243, 542 A.2d 1004 (1988), appeal denied, 522 Pa. 583, 559 A.2d 527 (1989); Commonwealth v. Carr, 370 Pa.Super. 1, 535 A.2d 1120 (1987), appeal denied, 518 Pa. 648, 544 A.2d 960 (1988). In Galloway, for example, this Court held that a defendant whose conviction became final when the Supreme Court affirmed his judgment of sentence on September 24, 1981, was not entitled to post-conviction relief based on a ruling set forth in an opinion filed by the Supreme Court on October 19, 1981, barely a month later. We conclude, therefore, that there is no support in the case law of this Commonwealth for the result sought by appellant in this case.

a new rule of law to which we give full retroactive effect, will not be applied to any ease on collateral review unless that decision was handed down during the pendency of an appellant’s direct appeal and the issue was properly preserved there, or ... is non-waivable.

Finally, we note that appellant has presented to the Supreme Court, via two petitions for extraordinary relief, the same issue that he raises here, and that the Supreme Court has denied both petitions without explanation. On this point, the trial court offered the following observation:

This court cannot divine the reason why the Supreme Court has consistently and repeatedly denied extraordinary relief to [appellant] despite its decision in Scarpone. If it is because there must be some finality to these matters, and [because] justice does not require extraordinary relief, then this court concurs.

Trial Court Opinion, 2/17/95, at 8. To this we add the observation that 42 Pa.C.S. § 726, which confers extraordinary jurisdiction on the Supreme Court, does so only “in any matter pending before any court ... of this Commonwealth ...” (emphasis added).

Most importantly, we are cognizant that “[t]he formal purpose of the Superior Court is to maintain and effectuate the decisional law of [the Supreme] Court as faithfully as possible.” Commonwealth v. Dugger, 506 Pa. 537, 545, 486 A.2d 382, 386 (1985). Doing so in this case requires that we affirm the trial court’s order denying appellant’s petition for post-conviction relief.

Order affirmed.

HOFFMAN, J., files a concurring statement.

HOFFMAN, Judge,

concurring:

As appellant’s direct appeal was final when the Supreme Court decided Commonwealth v. Scarpone, 535 Pa. 273, 634 A.2d 1109 (1993), and as his claim had already been previously litigated, I agree with my distinguished colleagues that appellant is not eligible for relief under the PCRA. See 42 Pa.C.S. § 9543(a)(3); Pa.C.S. § 9544; Commonwealth v. DeHart, 539 Pa. 5, 650 A.2d 38 (1994) (issues previously litigated may not be relitigated in PCRA action); Commonwealth v. Gillespie, 512 Pa. 349, 355, 516 A.2d 1180, 1183 (1986) (new rule of law will not be applied retroactively after appellant’s direct appeal is final).

However, I write separately to emphasize that there are circumstances where a departure from the PCRA’s stringent eligibility requirements is appropriate, such as where there are extraordinary circumstances or a miscarriage of justice. See Commonwealth v. Szuchon, 534 Pa. 483, 633 A.2d 1098 (1993) (where a strong prima facie showing is offered to demonstrate that a miscarriage of justice occurred, a subsequent petition for post-conviction relief will be entertained); Commonwealth v. Lyons, 390 Pa.Super. 464, 568 A.2d 1266 (1989) (extraordinary circumstances may overcome petitioner’s failure to raise issue below), appeal denied, 525 Pa. 663, 583 A.2d 792 (1990).

In the instant case, the evidence at trial clearly demonstrated that appellant deliberately altered the groundwater monitoring system, wrongfully discharged hazardous waste into an unnamed tributary of the Youghiogheny River, and lied under oath to the Commonwealth Court. Although appellant is serving a sentence for a conviction based upon evidence which would no longer support a conviction in Pennsylvania, I believe appellant’s conviction was not a miscarriage of justice or an extraordinary circumstance warranting a departure from the provisions of the PCRA.

Accordingly, I concur.

      . § 6018.401. Management of hazardous waste
      (a) No person or municipality ... shall own or operate a hazardous waste storage, treatment or disposal facility unless such person or municipality has first obtained a permit for the storage, treatment and disposal of hazardous waste from the [Djepartment [of Environmental Resources]----
      35 P.S. § 6018.401(a). The Commonwealth proceeded against Scar-pone on a theory of accomplice liability under § 6018.610, which reads in pertinent part as follows:
      It shall be unlawful for any person or municipality to:
      (9) Cause or assist in the violation of any provision of this act, any rule or regulation of the department, any order of the department or any term or condition of any permit.
      35 P.S. § 6018.610(9). See Scarpone v. Commonwealth, 141 Pa. Commw. 560, 596 A.2d 892 (1991), discussed infra.

        . § 6018.606 Criminal penalties
      (f) Any person who stores, transports, treats, or disposes of hazardous waste within the Commonwealth in violation of section 401, or in violation of any order of the department shall be guilty of a felony of the second degree and, upon conviction, shall be sentenced to pay a fine of not less than $2,500 but not more than $100,000 per day for each violation or to imprisonment for not less than two years but not more than ten years, or both.
      35 P.S. § 6018.606(f) (footnote omitted).

      . We note that in appellant’s PCRA petition, to be discussed infra, counsel for appellant states that the petition for allowance of appeal in the present case "was filed with the Supreme Court of Pennsylvania to No. 507 W.D. Allocatur Docket, 1989, which petition was denied on August 1, 1991____” The docket number and date supplied by counsel are incorrect; counsel has confused the petition for allowance of appeal in this case with the petition for allowance of appeal filed by appellant (and denied) in a different appeal.

      . The trial court states that this is appellant’s second collateral attack on his conviction, the first having been a petition for writ of habeas corpus filed on appellant's behalf by Allen Brunwasser, Esq., on July 17, 1989, and denied by the trial court on October 24, 1989. This petition was essentially a challenge to the revocation of appellant’s bond. Even if we were to apply to the present request for post-conviction relief the heightened standard set forth in Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988), for a second or any subsequent such petition, the result in this case would be unchanged.

      . Although the Supreme Court's opinion was not joined in its entirety by a majority of the panel, a majority joined the Court's ruling on the question of retroactivity.

      . Section 726 reads in its entirety as follows:
      Notwithstanding any other provision of law, the Supreme Court may, on its own motion or upon petition of any party, in any matter pending before any court or district justice of this Commonwealth involving an issue of immediate public importance, assume plenary jurisdiction of such matter at any stage thereof and enter a final order or otherwise cause right and justice to be done.
      42 Pa.C.S. § 726.


author: POPOVICH, Judge:

text:
    665 A.2d 1194
    COMMONWEALTH of Pennsylvania v. Quintellis SHARPE, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 3, 1995.
    Filed Sept. 22, 1995.

      Karl Baker, Assistant Public Defender, Philadelphia, for appellant.
    Kathy L. Echternach, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

The appellant, Quintellis Sharpe, appeals the revocation of his probation and parole and the imposition of a judgment of sentence (aggregating 3-15 years imprisonment) for Possessing Instruments of Crime (at Bill No. 1066) and Attempted Burglary (at Bill No. 1068). We reverse.

The facts are undisputed: On February 26, 1991, the appellant entered an open plea of guilty to the offenses cited above and received a sentence of lijé to 23 months incarceration, to be followed by 2 years probation, at Bill No. 1066. An identical sentence was issued at Bill No. 1068, which was ordered to be served concurrently with the previous sentence imposed.

On July 27, 1992, the appellant’s probation and parole were revoked and a “new sentence” was issued by the court directing the appellant to “serve back time” of not less than lijé to 23 months in jail and 2 years consecutive probation (at Bill No. 1066). Also, for violating his probation, the appellant was sentenced (at Bill No. 1068) to 10-23 months in jail, the commencement of which was to be served consecutively to Bill No. 1066.

When the appellant violated his probation and parole a second time, a hearing was conducted on August 15, 1994, following which the court revoked the parole/probation and entered a sentence of 1-5 years imprisonment at Bill No. 1066, which was to be served consecutively to the 2-10-year prison term imposed at Bill No. 1068. This appeal followed and questions the legality of the sentences imposed (at Bill No. 1066) “as ... exceeding] the maximum period of probation (two years)” and (at Bill No. 1068) as violative of the Double Jeopardy provisions of the United States and Pennsylvania Constitutions “because [the] appellant was no longer on probation at the time of the [second] revocation, the probation having been previously revoked and a prison sentence imposed, but where no new period of probation was given[.]” Appellant’s Brief at 3.

We start with the proposition that the legality of a sentence is a non-waivable issue subject to review at any stage of the judicial process or sua sponte by the court. Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281 (1983). To the extent that the Commonwealth avers that the appellant’s claims are not challenges to the legality of the sentence, an examination of such a view proves to be sophomoric.

With regard to the first contention, alleging that the 1-5 years prison term for Possessing Instruments of Crime was illegal as exceeding the initial 2-year probationary term, this Court has ruled in Commonwealth v. Bischof, 420 Pa.Super. 115, 616 A.2d 6 (1992) that violations of one’s parole permits a court to revoke parole and recommit the defendant to jail for a period not exceeding the maximum term under which he was originally sentenced. More specifically, we wrote:

Upon finding that Appellant had violated the terms of his parole, the trial court directed that he serve the unexpired balance of his term, which was twenty-three months on each of two counts, and further directed that the sentences be served consecutively. However, after making the determination that the parole granted on two specific sentences had been violated, the trial court only had authority to recommit Appellant to serve out the balance of the terms from which he had been paroled, which terms were to run concurrently. To change sentences which were originally made to run concurrently to consecutive sentences constitutes an enhancement of sentence, which has certain constitutional implications. Commonwealth v. Hermankevich, 220 Pa.Super. 197, 286 A.2d 644 (1971). The maximum period for which Appellant could be sentenced after revoking the parole set on these charges was limited to the maximum term under which Appellant was originally sentenced because a “modification of a sentence imposed on a criminal defendant which increases the punishment constitute[s] further or double jeopardy.” Commonwealth v. Cole, 222 Pa.Super. 229, 231, 294 A.2d 824, 825 (1972). See also Commonwealth v. Raynes, 349 Pa.Super. 314, 503 A.2d 17 (1986).
This case must be contrasted with those cases where the court revokes a probationary sentence and has the authority to modify the original probationary period by lengthening it and by adding reasonable conditions. Commonwealth v. McBride, 289 Pa.Super. 396, 433 A.2d 509 (1981). This is so because in those cases the order of probation is a conditional order and not a final order for double jeopardy purposes. Commonwealth v. Miller, 358 Pa.Super. 219, 516 A.2d 1263 (1986). However, in the instant case the court sought to modify, not a probationary period, but a fixed sentence. This it cannot do. In general, a sentencing court has jurisdiction to modify a sentence only in the first 30 days after imposition. Commonwealth v. Thomas, 301 Pa.Super. 333, 447 A.2d 994 (1982). Accord Commonwealth v. Martin, 346 Pa.Super. 129, 499 A.2d 344 (1985) (court lacked jurisdiction to modify a sentence, more than 30 days after imposition, so as to run consecutive to another sentence); Commonwealth v. Cooper, 333 Pa.Super. 559, 482 A.2d 1014 (1984). The court’s modification here was untimely. An appropriate order would have recommitted Appellant to serve out the unexpired balance of his sentence, such sentence to run concurrently with each other.

420 Pa.Super. at 122 & n. 1, 616 A.2d at 9-10 & n. 1.

Applying the Bischof rationale to the case at bar, the record indicates that the sentence imposed at Bill No. 1068 on February 26,1991, consisted of an 11% to 23 months incarceration and 2 years consecutive probation, to run concurrently with an identical sentence entered at Bill No. 1066.

On July 8, 1992, a detainer was issued and a hearing conducted on July 27,1992, whereby the appellant’s parole (at Bill No. 1066) and probation (at Bill No. 1068) were revoked. A “new sentence” was issued; to-wit:

[At Bill No. 1068, parole and probation revoked]. Not less than 10 months nor more than 23 months at PICC[.] Credit for time served from 6/30/92. Consecutive to ... [Bill No.] 1066. Will parole into a long term in patient program for drug & alcohol treatment. Detainer ... lifted/ ]
* * * * * *
[At] Bill 1066 — Parole Revoked.
Defendant to serve back time on sentence imposed 2/26/91 (not less than 11 1/2 months nor more than 23 months and two years consecutive probation to run concurrently with CP8903-3766. Receive intensive drug treatment at PICC. Supervised under Drug & Alcohol Unit).... [Emphasis added]

On November 5, 1993, a detainer was issued against the appellant and remained in effect until he was released from the hospital, which occurred on December 16, 1993, for a probation/parole hearing. Such a hearing was held on January 27, 1994, the detainer was lifted and the appellant was “paroled forthwith,” conditional upon the appellant living with his brother, obtaining employment and attending a drug treatment program. With the appellant’s failure to comply with the terms of parole, this conditional sentence was revoked on August 15,1994, and the appellant was sentenced anew: “Two to ten on the burglary, one to five on the PIC.” N.T. 5. The latter was to run consecutively to the former sentence.

With the precepts recited in Bischof, supra, in mind, we hold that the fact that the appellant’s initial sentences were to be served “concurrently” precluded the court, upon revocation of parole, to require that the sentences for the same offenses be served “consecutively.” Not only was the modification untimely (court permitted to alter order within 30 days of entry), but it smacks of and implicates violations of the Double Jeopardy Clause of both the United States and Pennsylvania Constitutions by enlarging the punishment initially imposed. Id. .

Accordingly, we find that the court imposed an illegal sentence when it directed that the punishment phase for each crime committed be served consecutively, instead of merely revoking parole and ordering the balance of the sentences be served “concurrently.” On remand, this error is to be rectified by the court. Id.

Turning to the second assertion of error, i.e., was the issuance of a 2-10-year prison term, imposed as a consequence of violating probation, illegal given that the appellant was not on probation at the time it was revoked.

The Commonwealth concedes that no order of probation existed at Bill No 1068 at the time the court proceeded to revoke the non-existent probation and impose a 2-10-year term of incarceration. In point of fact, the appellant’s probation at Bill No. 1068 was revoked and a sentence of 10-23 months imprisonment was imposed following a revocation hearing held on July 27, 1992. See Docket Entries, Page 2.

The appellant was paroled on January 27, 1994, to the custody of his brother (which never came to fruition and led to a revocation hearing on August 15,1994). Id. at Page I. Yet, we are given little insight as to what transpired between the appellant’s July 27, 1992, revocation of parole/probation and sentencing to a period of imprisonment and his parole, a second time, on January 27, 1994. However, what we can glean from the docket entries and parole revocation hearing on August 15, 1994, is that the appellant was hospitalized, received treatment in both a private and prison hospital before being paroled January 27,1994.

Needless to say, with the revocation of the appellant’s probation at Bill No. 1068 and imposition of a term of imprisonment (10 to 23 months, with credit for time served from 6/30/92), with no accompanying period of probation or subsequent parole being detectable from the record, the court below was without authority to revoke a non-existent probation/parole and impose a sentence of imprisonment (2-10 years) exceeding the initial sentence (11 1/2-23 months incarceration). See Commonwealth v. Quinlan, 433 Pa.Super. 111, 639 A.2d 1235 (1994) and contrast Commonwealth v. Byrd, — Pa.Super.-, 663 A.2d 229 (1995). The more appropriate course would have been, with the appellant's apparent parole (but for which of the two offenses we know not) and subsequent violation thereof, for the court below to recommit the appellant to serve the remaining, unexpired portion of his sentence(s). See Commonwealth v. Mitchell, 429 Pa.Super. 435, 632 A.2d 934 (1993); Bischof, supra.

Judgment of sentence reversed, case remanded for resentencing, and jurisdiction is not retained.

CAVANAUGH, J., concurs in the result.

      . The appellant's Petition to Vacate Illegal Sentence was denied by the court, following which the present appeal was perfected. See Court Opinion, 12/20/94 at 2.

       An exception exists where the trial court discovers that the sentence originally imposed was illegal in which case it may alter the sentence beyond the 30-day period. Commonwealth v. Pastorkovic, 390 Pa.Super. 1, 567 A.2d 1089 (1989). There is no claim here that the original sentence imposed was illegal.

         . We note that at the same proceeding, but prior to the imposition of the sentence just recounted, the court had entered a sentence which it modified to the form presently under review. This action having been taken within the statutorily permitted period to modify an order of court was proper. Commonwealth v. Pastorkovic, 390 Pa.Super. 1, 567 A.2d 1089 (1989).

      . From a reading of the August 15, 1994, transcript it is evident that the court was not impressed with the appellant's excuses for not meeting the terms of parole, e.g., going to a girl’s home instead of the parole-ordered brother's residence. After listening to the appellant's harangue, the court commented during sentencing in response thereto: "So long, pal. * * * I hope the girl was great, pal.” N.T. 5 & 6.

      . The imposition of sentence at Bill No. 1068, which exceeded the initial sentence, took place beyond the 30-day period allowed to modify a legal sentence (rendering the sentencing court without jurisdiction to act) and, as with the initial issue addressed, raises Double Jeopardy questions because of the enhanced punishment (2-10 years versus 11/-23 months imprisonment). See Commonwealth v. Bischof, 420 Pa.Super. 115, 616 A.2d 6 (1992).
      Once the appellant had been sentenced on February 26, 1991, to concurrent sentences of 11/ to 23 months imprisonment (at both Bill Nos. 1066 and 1068), the subsequent two attempts (on July 27, 1992, and August 15, 1994) by the court to impose consecutive terms of imprisonment were nullities and of no force or effect. Id.


author: OLSZEWSKI, Judge:

text:
    665 A.2d 1198
    Julie SEJPAL and Vinod Sejpal and Erica Lynn Sejpal, a Minor, by Julie Sejpal, Her Guardian, Appellants, v. CORSON, MITCHELL, TOMHAVE & McKINLEY, M.D.’S., INC., Hampton Corson, Donald Mitchell, Robert Tomhave, Richard G. McKinley, Donald R. McKinley and Conemaugh Valley Memorial Hospital, Appellees.
    Superior Court of Pennsylvania.
    Submitted July 24, 1995.
    Filed Sept. 25, 1995.

      Joseph E. Hudak, Pittsburgh, for appellants.
    Frank J. Stanek, Altoona, for Corson, Mitchell, Tomhave & McKinley, M.D.’s.
    Heather A. Williams, Hollidaysburg, for Conemaugh Valley Memorial Hospital.
    Thomas F. Halloran, Deputy Attorney General, Pittsburgh, for Commonwealth, participating party.
    Before McEWEN, TAMILIA and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

During a 1989 pregnancy, Julie Sejpal (appellant) sought prenatal and obstetric care from Corson, Mitchell, Tomhave and McKinley, M.D.’s., Inc., and its individual doctors, Hampton Corson, Donald Mitchell, Robert Tomhave, Richard G. McKinley, and Donald R. McKinley (appellees). On August 30, 1989, appellant gave birth to Erica Lynn Sejpal. Immediately after the birth of the child, appellant elected to undergo a sterilization procedure.

In 1992, sometime after finding out that Erica suffered from Down’s Syndrome, appellant and her husband filed a suit against appellees, their medical corporation, and Conemaugh Valley Memorial Hospital. Appellant asserted that appellees negligently failed to conduct proper prenatal testing which would have discovered Erica’s Down’s Syndrome. If the condition had been discovered, appellant could have terminated the pregnancy. Appellant also asserted that the failure to inform her of Erica’s Down’s Syndrome resulted in a lack of informed consent regarding her subsequent sterilization.

By opinion and order dated March 4, 1992, the trial court dismissed the claims that pled “wrongful life” or “wrongful birth” causes of action on the authority of 42 Pa.C.S.A. § 8305. On appeal, this Court affirmed the dismissal, and the Supreme Court denied allowance of appeal. A further appeal for certiorari to the United States Supreme Court was also denied.

Following this set of appeals, the matter returned to the trial court for action on appellant’s remaining claims. Appellees immediately filed a motion for judgment on the pleadings asserting that “[although not expressly stated ... each [remaining] Count is based upon theories of wrongful birth or seeks damages in connection with the birth of Erica Lynn Sejpal.” R.R. at 33a. Hence, appellees argued that the remaining claims were also barred by 42 Pa.C.S.A. § 8305. In response, appellant sought leave of the court to amend her complaint “for purpose of clarification.” R.R. at 51a.

On January 12, 1995, the Honorable F. Joseph Leahey filed an order denying appellant’s request to amend and granting appellees’ motion for judgment on the pleadings. This appeal followed.

Appellant first alleges that the trial court erred in granting appellees’ motion for judgment on the pleadings. “[A] motion [for judgment on the pleadings] is in the nature of a demurrer; all of the opposing party’s well-pleaded allegations are viewed as true but only those facts specifically admitted by him may be considered against him.” Cantwell v. Allegheny County, 506 Pa. 35, 36 n. 1, 483 A.2d 1350, 1351 n. 1 (1984) (quoting Karns v. Tony Vitale Fireworks Corp., 436 Pa. 181, 184, 259 A.2d 687, 688 (1969)).

After reviewing appellant’s allegations, the trial court granted judgment for appellees because it believed that all of appellant’s remaining claims were barred by 42 Pa.C.S.A. § 8305. See trial court opinion, 1/12/95 at 5. Section 8305(a) states, “[t]here shall be no cause of action ... based on a claim that, but for an act or omission of the defendant, a person once conceived would not or should not have been born.” 42 Pa.C.S.A. § 8305(a). Section 8305(b) similarly prohibits actions based on claims that a person should not have been conceived or should have been aborted. 42 Pa. C.S.A. § 8305(b). Because the trial court believed that all of appellant’s remaining claims were “obviously premised on [the] claim that Erica should not have been born,” it applied section 8305 and granted judgment for appellees. Trial court opinion, 1/12/95 at 5. After careful review, we cannot agree with the trial court’s characterization of all of appellant’s remaining claims.

Appellant’s entire complaint was inartfully drafted. Yet, a fair reading reveals allegations of two separate and distinct harms: the “wrongful birth” or “wrongful life” of a Down’s Syndrome child and the performance of a sterilization procedure without informed consent. See Jenkins v. Hospital of the Medical College of Pennsylvania, 535 Pa. 252, 261, 634 A.2d 1099, 1103 (1993) (addressing an appealability issue and holding, on facts identical to those in the instant appeal, that “Ms. Jenkins alleged two different harms: (1) the birth of a child with Down’s Syndrome, and (2) the sterilization performed without her informed consent.”). While the two claims are related in the sense that they both focus on appellees’ failure to inform appellant of Erica’s Down’s Syndrome, only the former is based on an assertion that a person should not have been bom. The latter is a separate claim alleging that, notwithstanding Erica’s birth, appellant would not have been sterilized and would have tried for a second healthy baby if she had known of Erica’s illness. Thus, the trial court erred in finding that section 8305 operated as a bar to appellant’s sterilization/lack of informed consent claims.

Given that the trial court ruled for appellees solely on the basis of section 8305, we must reverse the order in part and remand the case for consideration of the merits of appellant’s lack of informed consent theory of recovery.

Appellant also asserts that the trial court erred by not allowing her to amend her pleading. A motion to amend a pleading is addressed to the sound discretion of the trial court and the trial court’s determination is not to be disturbed on appeal absent an abuse of discretion. E.g., Carringer v. Taylor, 402 Pa.Super. 197, 207, 586 A.2d 928, 933 (1990), appeal denied, 533 Pa. 629, 621 A.2d 576 (1992). In exercising its discretion, a trial court should liberally allow amendments so as to permit cases to be decided on the merits. E.g., Horowitz v. Universal Underwriters, 397 Pa.Super. 473, 480, 580 A.2d 395, 399 (1990), appeal denied, 527 Pa. 610, 590 A.2d 297, 298 (1991). An amendment should not be allowed, however, where it will present an entirely new cause of action or unfairly surprise or prejudice the opposing party. E.g., Carringer, 402 Pa.Super. at 207, 586 A.2d at 933.

In the original complaint, appellant alleged that appellees’ failure to perform required tests during pregnancy which could have detected Erica’s Down’s Syndrome contributed to her lack of informed consent for the sterilization. R.R. at 21a-23a. By her amendment, appellant sought to add to her complaint specific allegations that appellees misled her into believing that Erica was healthy and normal just prior to sterilization. The trial court refused to allow the amended complaint, believing that it pled an entirely new cause of action. We disagree.

Although inartfully pled, appellant’s original complaint did allege that she would not have undergone the sterilization procedure if it were not for appellees’ prenatal failure to discover Erica’s Down’s Syndrome. R.R. at 21a-22a. The theory of this allegation is that if appellant had known that her first child, Erica, suffered from Down’s Syndrome, she would have refused sterilization and tried to have another child. In her amended complaint, appellant alleged that appellees misled her, even after Erica was bom, into believing that her baby was healthy and normal. While appellant’s amendment raises more specific, and arguably more damaging, allegations, it still supports the same theory of recovery: if appellees had informed appellant of Erica’s Down’s Syndrome, she would not have gone through with the sterilization. The trial court correctly points out that the original complaint focuses on appellees’ prenatal failures to detect and inform, while the amendment to the pleadings adds an allegation of post-delivery misrepresentation. We simply do not see how this difference creates a new cause of action, however. Since we find that the amendment to the pleadings did not raise a new cause of action, and since appellees failed to assert any unfair surprise or prejudice, we must conclude that the trial court abused its discretion in refusing to allow the pleadings to be amended.

Finally, appellant asserts that 42 Pa.C.S.A. § 8305 is unconstitutional in that it violates an individual’s fundamental right to make personal procreative decisions. Because of our determination that section 8305 is inapplicable to appellant’s sterilization/lack of informed consent claims, the constitutionality of that statute is no longer an issue in the present appeal and we need not address it further. See Weir v. Weir, 428 Pa.Super. 515, 531, 631 A.2d 650, 658 (1993) (“It is well settled that the appellate courts will not decide constitutional issues unless it is absolutely necessary to do so.”).

In sum, we find that the statutory prohibition against wrongful birth and wrongful life suits does not bar appellant’s separate and distinct action for lack of informed consent regarding her sterilization. Additionally, appellant’s attempted amendment to the pleadings only sought to strengthen the informed consent theory of the case; and under our liberal amendment rules, it should have been allowed. Therefore, we reverse the trial court’s January 12, 1995, order, insofar as it dismissed the sterilization claims and denied appellant’s proposed amendments, and remand for further proceedings consistent with this Opinion.

Reversed in part and remanded. Jurisdiction relinquished.

      . Appellees argue that the informed consent doctrine is inapplicable to the facts of this case. These arguments should be addressed to the trial court on remand.

      . We offer no opinion on the validity of appellant’s theory of recovery on the basis of lack of informed consent. Our present decision simply holds that appellant's claim is not barred by 42 Pa.C.S.A. § 8305.