author: KELLY, Judge:

text:
    551 A.2d 309
    ESTATE OF Albert Walter GOAL, Deceased, Charlotte Ann Hendrickson, Elizabeth Jean Jackson, and Johnnie Mae Bauder, Appellees. Appeal of Elige Jim HOLLIFIELD.
    Superior Court of Pennsylvania.
    Argued Aug. 16, 1988.
    Filed Dec. 8, 1988.
    Petition for Allowance of Appeal Denied May 31, 1989.

      Arthur J. Stewart, Warren, for appellant.
    Sue A. Pfadt, Erie, for appellees.
    Before BROSKY, KELLY and HESTER, JJ.
   KELLY, Judge:

In this appeal, we are called upon to consider whether an adult adoptee qualifies as an “issue” of an adopting parent under the provisions of a will drafted by a testator who died prior to the adoption of the adult adoptee by the testator’s child. We find that the adult adoptee does not. Accordingly, we affirm the final decree of the trial court.

The relevant facts and procedural history may be summarized as follows. Albert Walter Goal (Testator) died August 5, 1954, leaving his testamentary trust under date of May 25, 1950, appointing Warren Bank and Trust Company or its successor as Trustee and Executor of Testator’s Last Will and Testament.

Testator devised and bequeathed, except for a $1,000.00 cash provision, all of his property in trust for the benefit of his children, Helen Uldene Renick and Robert Hamilton Goal (Decedent). Under the terms of the trust, the trustee is directed to pay over and deliver two-thirds (%) of the net income from the trust estate to Helen U. Renick and one-third (Vs) of the net income to Decedent for their respective lives. The trust further directs, after the demise of Helen Renick and Decedent, their respective fractional share of income is to be distributed to the issue of Testator’s two children per stirpes.

On March 3, 1987, Decedent died. He was survived by three natural daughters, Charlotte A. Hendrickson, Elizabeth Jean Jackson and Johnnie Mae Bauder. Decedent was also survived by his adopted son, appellant, adopted on January 30, 1984, when he was forty-one years of age.

On June 26, 1987, appellant filed a petition for declaratory judgment under Section 7535 of the Judicial Code (42 Pa.C.S.A. § 7535) addressing the rights of fiduciaries and other persons in regard to a person interested in the estate of a decedent. A hearing was held before Judge Wolfe on October 26, 1987. On November 30, 1987, Judge Wolfe filed his adjudication and decree nisi which denied appellant his requested relief. Timely exceptions were filed and denied. On December 23, 1987, Judge Wolfe entered his decree absolute. This timely appeal followed.

Our standard of review in this case is well settled. In reviewing findings of the Orphan’s Court, we must accept as true all evidence in the record supporting its findings and all reasonable inferences therefrom. Adoption of S.H., 476 Pa. 608, 383 A.2d 529 (1978). We will uphold its decision so long as it is supported by competent evidence and no abuse of discretion or error of law was committed. Id.

Estate of Matson, 374 Pa.Super. 61, 65-66, 542 A.2d 147, 149 (1988).

Appellant contends that the trial court incorrectly broadened the rule of construction regarding inheritance by adult adoptees announced in In Re Estate of Tafel, 449 Pa. 442, 296 A.2d 797 (1972), so as to exclude him from a share in the trust. Appellant maintains that, pursuant to the rule of construction announced in Tafel, the law presumes that in the absence of any expressed intention to the contrary, a testator intended to treat adopted children in the same manner as natural children. Appellant asserts that the Tafel rule of construction applies regardless of the age of the child adopted. Moreover, appellant argues that the only-exception to the rule is where an adoption of an adult is done in order to frustrate a gift over. Thus, appellant argues, because his adoption did not prevent a gift over but merely lessened the natural children’s share, he is entitled to share in the income from the trust. We disagree.

In Tafel, our Supreme Court addressed the question of an adoptee’s rights of inheritance. A plurality of the Court stated the rule of construction as follows:

This rule does not conflict with any such legislation but simply presumes that a testator, in the absence of any expressed intention in the will to the contrary, intended to treat adopted children in the same manner as natural children and to include in the testamentary words ‘child’ or ‘children’ an adopted child regardless of the date of his or her adoption.

449 Pa. at 453-454, 296 A.2d at 803. (Emphasis in original). Admittedly, this rule would allow appellant to share in the trust income, as there was no clear expression by the testator that adopted children were excluded. Further reading of the plurality decision, however, reveals that the Court limited the application of this presumption to children adopted in minority. The Court stated:

The rule of construction herein announced applies where the adoptee or adoptees at the time of the adoption were minors and not adults and does not apply where an adoptee or adoptees was or were adults at the time of adoption.

449 Pa. at 454, 296 A.2d at 803. (Emphasis added). The Court’s reasoning for excluding adult adoptees is as follows:

By the restriction of this rule of construction to minor adoptions we serve and effectuate the purpose of preventing an adult adoptee or adoptees from being considered a testamentary ‘child’ or ‘children’ where such adoption is undertaken by a person other than the testator to prevent a gift over in default of a natural ‘child’ or ‘children’ and thus, in effect, rewrite the testator’s will. Cf. Holloway Estate, 444 Pa. 624, 281 A.2d 631 (1971).

449 Pa. at 454, 296 A.2d at 803. Thus, in the instant case, the trial court did not unduly broaden the rule announced in Tafel. The rule of construction announced in Tafel applies only where the adoptee at the time of the adoption was a minor and not an adult. Thus, an adult adoptee is not to be treated as a “child” under the terms of a will unless an express provision of the will or a codicil thereto so provides, in the same way that an adoptee of a beneficiary under a will may not be permitted to invade a gift over provision by the fact of adoption.

The facts of Tafel, however, involved children adopted during their minority. Also, the Tafel opinion is not a majority opinion; rather, it is a plurality opinion. Thus, Tafel does not control preeedentially the disposition of the question before us. Mt. Lebanon v. County Board of Elections, 470 Pa. 317, 368 A.2d 648 (1977); In Re Estate of Kauffman, 352 Pa.Super. 1, 506 A.2d 951 (1986).

In In Re Estate of Ketcham, 343 Pa.Super. 534, 495 A.2d 594 (1985), this Court had occasion to construe the language of a will as it applies to a person adopted during majority. The Ketcham case involved two adoptees, one adopted in infancy, the other adopted at the age of fifty-six, both of whom wished to share in the distribution from a testamentary trust made by the mother of the son and daughter by whom the claimants were adopted. There was no express intention in the will regarding adopted children. Applying Tafel, this Court held that the child adopted during her minority should share in the trust.

However, this Court refused to apply the Tafel rule of construction to the adoptee who was adopted during her majority. In Ketcham, this Court found as a fact that initially, the adopting parent declined to adopt the woman when she was informed that the existing law precluded adoptees from inheriting. The adoption was not effectuated until after the parent learned of the change in the existing law which would permit inheritance by adoptees. This Court concluded, therefore, that the sole purpose for the adoption of the woman in her majority was to secure an inheritance. 343 Pa.Superior Ct. at 540, 495 A.2d at 597. This Court refused to permit the daughter to manipulate the mother’s testamentary intent by an expedient adult adoption for the purpose of invading an already existing gift over provision.

In In Re Estate of Kauffman, supra, the rationale for distinguishing between child and adult adoptees was set forth explicitly as follows:

There appear to be two main policy considerations upon which these precedents rely and which must guide this Court in deciding the case before us. First, there is the policy that an adopted child should have the same rights as a natural child. This policy is well documented in the adoption statutes of this Commonwealth. The Adoption Act, 23 Pa.C.S. § 2101 et seq., provides, in pertinent part, that when a court enters an adoption decree, the decree shall direct “that the person proposed to be adopted shall have all the rights of a child and heir of the adopting parent or parents and shall be subject to the duties of a child to him or them.” 23 Pa.C.S. § 2902(a). The Tafel court stated that:
Beginning with the first adoption statute of 1855, on eight occasions whenever the legislature has spoken on the effect of an adoption once decreed, the legislature has expressly, specifically and unequivocally mandated that the adopted person ‘shall have all the rights of a child and heir of' the adoptive parents.
Tafel [449 Pa.] at 447, 296 A.2d 799-800 (footnote omitted) (emphasis in original). This policy of equality is promoted by the inclusion of adoptees within the words ‘children,’ ‘issue,’ etc. See [Estate of] Sykes 477 Pa. [254] at 260, 383 A.2d [920] at 923 [1978]. See also Buzby Estate, 30 Pa.Fiduc. 5 (Orphans’ Court, Philadelphia, 1979).
The second policy which we must consider is that the court will not allow a legatee to ‘rewrite’ a testator’s will after the testator’s death. This was the rationale behind the exclusion of adult adoptees from the Tafel presumption. Tafel [449 Pa.] at 454, 296 A.2d at 803. See Wyman Trust, 23 Pa.Fiduc. 286, 290 (Orphans’ Court, Montgomery County, 1973). In promoting this policy, courts seek to effectuate the intent of the testator as expressed in the will. When an adoption is effectuated because of a parent-child relationship, then it is logical for the court to presume that when no contrary intent is shown, the testator would have wanted the adopted child included in a legacy or bequest to ‘children’. In such a case, the adopted person fits the meaning commonly associated with the word ‘child,’ and is no different from natural siblings except for the biological ties. See Tafel, 449 Pa. 442, 296 A.2d 797 (1972). However, when no parent-child relationship exists, and the adoption is effectuated to secure an inheritance, it would not be logical to presume that the testator would have intended the adoptee to be included. Accordingly, the court in construing the language of the will will exclude such adult adoptees who had no parent-child relationship from sharing in a legacy or bequest to ‘children.’ E.g. Ketcham, 343 Pa.Super. 534, 495 A.2d 594 (1985).

352 Pa.Superior Ct. at 8-9, 506 A.2d at 954-55. (Emphasis added). In Kauffman, this Court found no affirmative evidence in the record which would establish a parent-child relationship existed. While we could not conclude, as in Ketcham, that the sole reason for the adoption was to secure the inheritance, we nonetheless refused to extend the Tafel rule of construction to the facts of that case, absent at least some showing that the adoption of the appellant during her majority was done for reasons other than an attempt to share in the inheritance. This Court held in Kauffman that “without any showing of a parent-child relationship existing during an adoptee’s minority, a person adopted during majority may not be presumptively considered to be a “child” of the adoptive parent when construing the will of a testator who has died and whose will becomes effective prior to the time of the adult adoption.” 352 Pa.Superior Ct. at 10, 506 A.2d at 956.

In the instant case, the trial court found the adoption of appellant at age forty-one was to secure an inheritance for appellant under the trust established by Decedent’s father. (Trial Ct.Op. at 3, 8). The trial court based its finding on the fact that Decedent had not adopted appellant until after he had discussed with Darrell Johnson, the trust officer, the possibility of eliminating one of his natural children from the trust and the possibility of an adopted child sharing in the trust. Appellant’s adoption occurred after Decedent was informed by Mr. Johnson that adopted children can inherit in Pennsylvania with natural children and Decedent could not eliminate one of his children. Thus, the trial court’s conclusion that Decedent’s motive in adopting appellant was to secure him an inheritance is supported by the record.

The record does not reflect any showing that a parent-child relationship had developed during appellant’s minority. Mr. Hollifield, appellant’s natural father, died when appellant was twenty years old. (N.T. 10/26/87 at 15). Appellant did not meet Decedent until he was nineteen years old. (N.T. 10/26/87 at 15). Therefore, the inference could be drawn that appellant and Decedent had not developed a parent-child relationship during appellant’s minority. A thorough review of the record reveals no more than the development of a friendship based upon common interests during the early years of the adoptee’s adult life. Therefore, we hold that the absence of a parent-child relationship during the adoptee’s minority and the evidence which suggests that a primary motive for the adoption was to secure an inheritance under an existing will adequately support the trial court’s conclusion that appellant was not entitled to inherit from the testator who was not the adopting parent and who died before the adoption. See Tafel, supra; Kauffman, supra; Ketcham, supra.

Based upon the foregoing, we conclude that the trial court correctly denied appellant’s petition. Accordingly, we affirm the order of the trial court.

      . The terms for the final distribution of the trust provided that at the time fixed for distribution if there should remain any portion of the trust estate undistributed, the same shall be distributed to Testator’s heirs at law in the manner provided by intestate laws of the Commonwealth of Pennsylvania, then in force.

      . Decedent had previously been married to the mother of his three natural daughters and following her death, in the spring of 1979, Decedent married appellant’s mother, Bernice Hollifield, in the summer of 1979.

      . Indeed, this is the position taken by the legislature in the current section of the Probate, Estates & Fiduciaries Code dealing with adopted children. Specifically, Section 2514 provides in relevant part:
      ... [I]n construing a will making a devise or bequest to a person or persons described by relationship to the testator or to another, any adopted person shall be considered the child of his adopting parent or parents, except that, in construing the will of a testator who is not the adopting parent, an adopted person shall not be considered the child of his adopting parent or parents unless the adoption occurred during the child’s minority or reflected an earlier parent-child relationship that existed during the child's minority.

      20 Pa.C.S.A. § 2514(7). (Emphasis added). While the current statute does not apply in this case, as was the case in Kauffman, it is relevant as to whether the policy of this Commonwealth should be to allow persons adopted during their majority to inherit under the terms of pre-existing wills referring to children, grandchildren, issue and like terms.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    551 A.2d 313
    COMMONWEALTH of Pennsylvania v. Robert WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 11, 1988.
    Filed Dec. 14, 1988.

      Elaine Demasse, Assistant Public Defender, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before TAMILIA, MONTGOMERY and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment of sentence for receiving stolen property. Appellant contends that the suppression court erred in denying his motion to suppress physical evidence. We agree and, accordingly, vacate the judgment of sentence and remand for a new trial.

Appellant was arrested and charged with burglary, theft, receiving stolen property, and criminal and defiant trespass. Prior to trial, appellant moved to suppress a video cassette recorder (“VCR”) and tapes that he had placed on a bench in a bar, and that had been seized by a police officer. The motion was denied, and appellant proceeded to trial before a judge sitting without a jury. On December 28, 1987, appellant was found guilty of receiving stolen property, and was acquitted on the remaining charges. Post-verdict motions were timely filed and denied, and appellant was later sentenced to a two-year term of probation. This timely appeal followed.

The scope of our review of the denial of a motion to suppress is well-established.

An appellate court is bound by the factual findings of the suppression court if they have support in the record. Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977); Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976); Commonwealth v. Iannaccio, 304 Pa. Super. 307, 450 A.2d 694 (1982). However, the suppression court’s order may be reversed if the legal conclusions drawn from the factual findings are in error, Commonwealth v. Jackson, 497 Pa. 591, 442 A.2d 1098 (1982); Commonwealth v. Hall, supra.

Commonwealth v. Anderl, 329 Pa.Super. 69, 74-75, 477 A.2d 1356, 1358-59 (1984).

At the conclusion of the suppression hearing below, the court made the following findings of fact:

First, ... Officer Mock testified that on April 17, 1987, approximately 10:00 p.m. he was on routine patrol in his patrol car travel[l]ing northbound on Baynton Street at or about the intersection with Chelten Avenue.
Secondly, that Officer Mock observed [appellant] walking southbound on Baynton Street carrying a green trash bag containing what appeared to be a VCR.
Third, that Officer Mock observed [appellant] enter a bar located on the corner of Baynton and Chelten Avenue.
Fourth, that Officer Mock entered the bar and found the trash bag, VCR, and eight video tapes located on a bench. He did not observe [appellant] in the bar at that time.
Fifth, that Officer Mock exited the bar and while placing the items in his patrol car, he observed [appellant] exit the bar from a side door.
Sixth, that Officer Mock stopped [appellant] and inquired as to the ownership of the VCR and eight tapes.
Seventh, that [appellant] told Officer Mock he was the owner of the items.
Eighth, that Officer Mock inquired of [appellant] a receipt for the goods in question.
Ninth, that [appellant] failed to produce a receipt. Whereupon he was arrested by Officer Mock.

N.T. December 28, 1987 at 19-20. Based upon these findings, the suppression court concluded, as a matter of law, that “the Officer had probable cause to arrest [appellant]” and “the VCR is admissible evidence in that [appellant] had effectively abandoned it and this was not the result of unlawful police conduct.” Trial Court Opinion at 3.

Appellant asserts that his fourth amendment rights were violated when Officer Mock seized the VCR and tapes without having probable cause to believe that the items were connected with criminal activity. The Commonwealth, however, argues that the trial court properly denied the motion to suppress because appellant had abandoned the VCR and tapes prior to Officer Mock’s seizure. “The Fourth Amendment to the Constitution of the United States ‘protects people from unreasonable government intrusions into their legitimate expectations of privacy.’ ” Commonwealth v. Shaw, 476 Pa. 543, 550, 383 A.2d 496, 499 (1978). See also Commonwealth v. Flewellen, 475 Pa. 442, 446, 380 A.2d 1217, 1219 (1977); Commonwealth v. Rispo, 338 Pa. Super. 225, 230, 487 A.2d 937, 939 (1985). The Commonwealth bears the burden of proving by a preponderance of the evidence that a search or seizure did not violate the fourth amendment. Commonwealth v. Silo, 480 Pa. 15, 21, 389 A.2d 62, 65 (1978). “With few exceptions, the Fourth Amendment requires that law officers obtain a warrant issued by a neutral magistrate before they intrude into a place of privacy.” Commonwealth v. Rispo, supra; Commonwealth v. Morrison, 275 Pa.Super. 454, 457, 418 A.2d 1378, 1379 (1980) (en banc). See also Commonwealth v. Holzer, 480 Pa. 93, 102, 389 A.2d 101, 106 (1978). One such exception to the warrant requirement exists when the property seized has been abandoned. Commonwealth v. Vecchione, 327 Pa.Super. 548, 557, 476 A.2d 403, 407-08 (1984). “[I]t is well-settled that no one has standing to complain of a search of seizure of property that he has voluntarily abandoned.” Commonwealth v. Shoatz, 469 Pa. 545, 553, 366 A.2d 1216, 1220 (1976). In Shoatz, our Supreme Court outlined the test for determining whether an abandonment has occurred:

The theory of abandonment is predicated upon the clear intent of an individual to relinquish control of the property he possesses.
Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts. United States v. Cowan, 2d Cir. 1968, 396 F.2d 83, 87. All relevant circumstances existing at the time of the alleged abandonment should be considered. United States v. Manning, 5th Cir.1971, 440 F.2d 1105, 1111. Police pursuit or the existence of a police investigation does not of itself render abandonment involuntary. See Abel v. United States, supra [362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960) ]; United States v. Edwards, 5th Cir.1971, 441 F.2d 749; Lurie v. Oberhauser, 9th Cir.1970, 431 F.2d 330. The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search. United States v. Edwards, supra, 441 F.2d at 753; cf. Katz v. United States, 1967, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576.

469 Pa. at 553, 366 A.2d at 1219-20 (1976) (quoting United States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973)) (emphasis supplied). See also Commonwealth v. Anderl, 329 Pa.Super. 69, 82-83, 477 A.2d 1356, 1362-63 (1984); 1 W. LaFave, Search and Seizure, § 2.6(b), at 467 (1987) (“The fundamental question is whether the relinquishment occurred under circumstances which indicate [the defendant] retained no justified expectation of privacy in the object.”).

Here, a review of the suppression testimony convinces us that the Commonwealth did not meet its burden of showing that appellant clearly intended to relinquish his reasonable expectation of privacy in the VCR and tapes. Officer Mock was the only witness to testify at the suppression hearing. Officer Mock stated that on the date in question, he was on routine patrol in a marked police car in the Germantown section of Philadelphia. N.T. December 28, 1987 at 2-3. With specific regard to his seizure of the VCR and tapes, the Officer then testified as follows:

BY [the prosecutor]:
Q. How far from [appellant] were you when you first saw him?
A. ... I would say about 15, 20 feet.
Q. Could you describe for the Court exactly what you observed [appellant] doing at that time?
A. I observed him carrying a green trash bag and I could see what appeared to be a VCR sticking out.
Q. And what occurred after you made this observation?
A. He was headed southbound. I was headed northbound. So I had to make a U-turn. I made the U-turn and I was now southbound on Baynton and I observed the male walk into the bar at Baynton and Chelten. ******
Q. Officer, why did you make a U-turn and come back down the other way?
A. Because I thought I saw what appeared to be a VCR that the male was carrying, and I was going to investigate him.
Q. Could you describe for the Court what you observed on your way back down Baynton?
A. I observed the male walk into the bar at Baynton and Chelten.
Q. So what did you do as a result of that?
A. I went into the bar also.
Q. Did you find anything?
A. I found a green trash bag with a VCR and eight tapes in it on the bench inside the bar.
Q. Was that the same bar you had seen [appellant] go into, or not?
A. Yes.
Q. And how soon after you saw [appellant] go into that bar did you find the green trash bag, the VCR and the tapes?
A. Almost immediately.
Q. Were you able to tell whether that was the same items you had seen [appellant] with earlier?
A. It appeared to be, yes.
»fe * * * * #
Q. Now, what did you do with the items you found?
A. Well, I looked for the male, and I couldn’t find him in the bar. So I took the VCR and the tapes out and called for a backup.
[Appellant’s counsel]: I’m sorry. I didn’t hear that. You took the VCR and tapes out?
The Witness: Out of the bar and put them in my patrol car and called for back-up because I was going to search the bar. Then I observed the male come out of the side porch of the bar.

Id. at 3-6.

The difficulty with this case is that there was no testimony regarding the circumstances in the bar at the time appellant left the VCR and tapes. If the record revealed that appellant left the VCR and tapes in a crowded bar, or that he left them in a position where other people then present would have had easy access to them, or that he left the premises or left his possessions unattended for an extended period of time, we could conclude that any expectation of privacy that appellant retained in the items was unreasonable. Conversely, if the record revealed that the bar was deserted, and that appellant left the items unattended for a few minutes while he was in another room, we could conclude that appellant did retain a reasonable expectation of privacy in his possessions. Here, however, the officer did not say how large the bar was, whether it was crowded or deserted, or whether other patrons or employees had easy access to the items. Moreover, the officer did not testify regarding how much time elapsed between his entry into the bar and his seizure of the items, or the extent of his search for appellant. Instead, the officer merely stated that he saw the evidence “almost immediately” after entering the bar, that he “looked for” appellant in the bar but could not find him, and that he then seized the evidence. On this record, we cannot conclude that the Commonwealth proved by a preponderance of the evidence that appellant clearly intended to relinquish his expectation of privacy in the VCR and tapes. See Commonwealth v. Shoatz, supra.

We derive further support for our conclusion from the fact that there is no evidence on this record to suggest that appellant left the VCR and tapes in response to Officer Mock’s investigation. Officer Mock did not state that appellant looked at him or was aware of his presence as he rode by in the police cruiser, nor did he suggest that appellant entered the bar in an attempt to elude him. Indeed, the only actual confrontation between the officer and appellant occurred after the officer had seized the items and put them in the police cruiser. The case is thus distinguishable from the typical case in which abandonment has been found because the defendant attempted to disassociate himself from incriminating evidence by throwing it away upon the lawful approach of police. See, e.g., Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977); Commonwealth v. Bulling, 331 Pa.Super. 84, 480 A.2d 254 (1984); Commonwealth v. Derrick, 322 Pa.Super. 517, 469 A.2d 1111 (1983). See also 1 W. LaFave, Search and Seizure, § 2.6(b), at 466 & nn. 89-48. In the instant case, the most that can be said is that appellant left Ms property unattended for an undetermined period of time.

In summary, we hold that the trial court erred in concluding that appellant abandoned his reasonable expectation of privacy in the VCR and tapes. Because this evidence was seized in violation of appellant’s constitutional rights, it should have been suppressed by the trial court. See Commonwealth v. Johnson, 474 Pa. 512, 520, 379 A.2d 72, 75 (1977); Commonwealth v. Rispo, supra.

For the foregoing reasons, we vacate the judgment of sentence and remand for a new trial

VACATED AND REMANDED. JURISDICTION IS RELINQUISHED.

      . We note that the suppression court’s fact findings are supported by the record, and appellant does not contest these findings.

      . We note that the Commonwealth does not dispute appellant’s claim that the seizure here cannot be upheld based on the officer having probable cause to believe that the VCR and tapes were connected with criminal activity. We may, of course, affirm the suppression order on a ground other than that relied upon by the court below. Thus, if it appeared from the record that Officer Mock had probable cause to believe that the evidence was connected with criminal activity, we could affirm the suppression court on that ground. Here, however, we have reviewed the suppression testimony and we agree with appellant that the officer did not have probable cause to seize the items. At the time the seizure occurred, Officer Mock did not have any information that a crime had been committed. Moreover, as we have noted in the text above, there is no record evidence to suggest that appellant was attempting to flee from the officer, or that he left the VCR and tapes in response to the officer’s investigation. Even assuming that the officer was warranted in concluding that appellant’s conduct was suspicious, we cannot hold that these circumstances are sufficient to provide probable cause to believe that the evidence was connected with criminal activity. Compare Commonwealth v. Mackie, 456 Pa. 372, 320 A.2d 842 (1974) (probable cause to arrest); Commonwealth v. Pincavitch, 206 Pa.Super. 539, 214 A.2d 280 (1965) (same). Cf. Campbell v. United States, 273 A.2d 252, 255 (D.C.App.1971) ("Our often criticized society has not yet deteriorated to the point where we can say that a man who carries openly, on the street, a large household appliance is probably a thief.”).


author: TAMILIA, Judge:

text:
    551 A.2d 317
    Brian YOST v. UNION RAILROAD COMPANY, Appellant. Brian YOST v. CONSOLIDATION COAL COMPANY and Twin Rivers Towing Company v. UNION RAILROAD COMPANY, Appellant. Brian YOST, Appellant, v. UNION RAILROAD COMPANY. Brian YOST, Appellant, v. CONSOLIDATION COAL COMPANY and Twin Rivers Towing Company v. UNION RAILROAD COMPANY.
    Superior Court of Pennsylvania.
    Argued Aug. 30, 1988.
    Filed Nov. 30, 1988.

      Gerald C. Paris, Pittsburgh, for appellant (at 01367PGH87) and appellee (at 00184PGH88).
    Arthur Cutruzzula, Pittsburgh, for appellant (at 00184PGH88) and appellee (at 01367PGH87).
    Before CIRILLO, President Judge, and ROWLEY and TAMILIA, JJ.
   TAMILIA, Judge:

These are consolidated appeals filed by two of three parties in this personal injury action. The first appeal at No. 01367 is by defendant Union Railroad Company (hereinafter “Union Railroad”) from a judgment entered, after a molded verdict and adjustment for payments made by Union Railroad, in the amount of $120,196.62 in favor of the plaintiff Brian Yost (hereinafter Yost). The second appeal at No. 00184 is by Yost from an Order vacating a portion of the judgment in the amount of $20,483.85, which had been previously awarded for delay damages under Pa.R.C.P. 238.

On the night of November 30, 1983, during the course of his employment as a bargeman for Union Railroad, Yost injured his ankle when he slipped and fell on a piece of coal while traversing a narrow gunwale of a barge. As a result of this incident, Yost brought an action under the Jones Act, 46 U.S.C.App. § 688, against Consolidation Coal Company (hereinafter “Consolidation”), the owner of the barge, and Twin Rivers Towing Company (hereinafter “Twin Rivers”), a subsidiary of Consolidation and the charterer of the barge upon which he was injured. The cases were consolidated for trial, which resulted in the jury, finding Union Railroad 100 per cent negligent with no negligence attributable to Yost, Consolidation or Twin Rivers. The trial court molded the verdict by awarding Yost $20,483.85 for Rule 238 delay damages and awarding Union Railroad $1,904.88 as an offset for payments it had made under the Longshoreman and Harbor Workers’ Compensation Act (hereinafter “LHWCA”), 33 U.S.C. § 901 et seq.; the trial court adjusted Union Railroad’s requested offset downward by 40 per cent for attorney’s fees incurred because of the LHWCA claim. The trial court denied Union Railroad’s post-trial motions and judgment for Yost was entered on September 16, 1987 for $120,196.62 from which Union Railroad timely appealed. By a subsequent Order, dated January 5, 1988, accompanying its Opinion disposing of Union Railroad’s post-trial motions, the trial court struck its earlier award of delay damages in the amount of $20,483.85. Yost appealed this Order in a timely manner.

The first issue presented by Union Railroad concerns the jury’s failure to apportion any degree of negligence to Yost, arguing the verdict is contrary to the weight of the evidence and seeking a new trial on this ground.

It is the jury’s responsibility as the finder of fact to determine the facts and we will not overturn their findings absent a showing that the verdict is capricious, against the weight of the evidence and resulted in a miscarriage of justice. Gajkowski v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 515 Pa. 516, 530 A.2d 853 (1987). In determining whether a verdict is against the weight of the evidence, we must consider all of the evidence, and only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice should a new trial be granted. Burch v. Sears, Roebuck and Company, 320 Pa.Super. 444, 467 A.2d 615 (1983); Weaver v. Firestone Tire and Rubber Company, 267 Pa.Super. 548, 407 A.2d 45 (1979). A refusal to grant a new trial on weight of the evidence grounds will not be reversed absent an abuse of discretion. Burch, supra; Yandrick v. Radic, 291 Pa.Super. 75, 435 A.2d 226 (1981).

At the time of the accident, Yost was employed as a bargeman at Union Railroad’s Duquesne Coal Dock, a transfer facility for raw materials. At that facility, barges loaded with coal and other raw materials arrive for unloading to railroad cars for further transportation of the materials to customers. Upon arrival, the loaded barges are placed in the loaded fleet to await transfer by a small tugboat for a large machine known as a continuous unload-er, which uses revolving buckets to scoop the materials out of the barge. Once the unloading process is finished the barge is returned via the tugboat to an empty fleet to await pickup by the owner of the barge.

As a bargeman, Yost worked with the captain or pilot of the tugboat and one other bargeman to tie loaded barges to the tug, move them into place and tie them for access to the continuous unloader, and after unloading retie the empty barges to the tug in order to move them to the empty fleet. The bargeman has to board the barges several times during the course of this process to perform his job. The barge in question was a standard 175 feet long with 25 by 10 foot deck areas at either end and a gunwale, measuring 26V2 inches wide, running the entire length of the barge on both sides. Spaced along the gunwales at the quarter marks and on the end of the decks are steel timberheads, which are approximately 12 inches in diameter and 16 inches high. The timberheads are directly in the center of the gunwales and are used to tie off the steel cables and ropes which hold the barge in place. Bargemen, such as Yost, use the gunwales as a working’ surface and walk along them during the course of their jobs. The gunwales have no toeboards or railings and when a barge is empty it rides approximately ten feet out of the water.

At approximately 8:30 p.m. on the cold evening of November 30, 1983, after completing the task of unhooking the now empty barge, Yost fell while returning along one of the gunwales to the tugboat, which was perpendicular to the barge and “faced up” against it As he was walking back along the gunwale, Yost placed his left foot over the first quarter timberhead, unfortunately coming down on hidden coal debris lying next to the timberhead, causing Yost to slip and fall, and injuring his ankle. The lighting in the area where the fall occurred was such that it cast shadows on the work area. Although Yost testified he did not look at the exact place on which he placed his foot when the fall occurred, he also testified he felt it would not have been safe for him to watch every step he made, but that he was certainly being more careful than if he were just walking down the street. Additionally, testimony indicated no one was hired or had the duty to clean the gunwales or keep them clear of debris, even though spillage was known to occur.

We will not find contributory negligence as a matter of law unless it is clear there is no room for fair and reasonable disagreement as to its existence. Eder v. Lansberry, 459 Pa. 621, 331 A.2d 165 (1975); Skalos v. Higgins, 303 Pa.Super. 107, 449 A.2d 601 (1982); Marinelli v. Montour Railroad Company, 278 Pa.Super. 403, 420 A.2d 603 (1980). We find the jury’s verdict that Yost was not contributorily negligent does not shock our sense of justice under the evidence presented and find no abuse of discretion in the trial court’s refusing to grant a new trial. It is within the jury’s province to determine the reasonableness of each party’s actions and to reconcile conflicting statements. Seewagen v. Vanderkluet, 338 Pa.Super. 534, 488 A.2d 21 (1985). We will not disturb the jury’s finding on this issue.

Next, Union Railroad claims the trial court erred in admitting certain evidence it terms irrelevant and compounded this error by excluding other evidence offered to rebut it. The fundamental consideration in determining the admissibility of evidence is whether the proffered evidence is relevant to the fact sought to be proved. Martin v. Soblotney, 502 Pa. 418, 466 A.2d 1022 (1983). Evidence is relevant if it tends to make a fact at issue more or less probable. Lewis v. Coffing Hoist Division, Duff-Norton Company, Inc., 515 Pa. 334, 528 A.2d 590 (1987); Martin, supra; Carroll v. Kimmel, 362 Pa.Super. 432, 524 A.2d 954 (1987). Absent an abuse of discretion rulings on the admission of evidence will not be reversed. Majdic v. Cincinnati Machine Company, 370 Pa.Super. 611, 537 A.2d 334 (1988); Burch v. Sears, Roebuck and Company, 320 Pa.Super. 444, 467 A.2d 615 (1983).

First, Union Railroad claims testimony by Warren Orr, an employee of Consolidation and former employee of Twin Rivers, concerning the conditions at the Duquesne Coal Dock and how coal was spilled on the gunwales at times other than the night of the accident, was irrelevant. Additionally, Union Railroad claims Orr’s testimony concerning how coal is unloaded at places other than the Duquesne Coal Dock was equally irrelevant and inadmissible. We disagree. Orr’s testimony established he was a river boat captain familiar with Union Railroad’s Duquesne Coal Dock facility. The testimony went to the issue of whether Union Railroad was negligent in failing to maintain the gunwales in a safe condition and whether its methods of operation caused spillage on the gunwales. His testimony regarding other facilities also had bearing on this issue by showing that other facilities avoided the spillage problem by using a different scooping technique. The witness was not testifying about disconnected acts of negligence but, instead, to his observations of Union Railroad’s unloading methods. Such testimony is probative of Union Railroad’s culpability in its unloading procedures on the night in question.

Second, Union Railroad claims the court erred in refusing admission of what it terms “rebuttal” evidence, in the form of its alleged good safety record at the Duquesne Coal Dock. In connection with this ruling, Union Railroad also contends the court erred in refusing the admission of Yost’s employee service record with it. We agree with the trial court that Union Railroad’s past safety record hears no relevance to Yost’s injury and is not probative of the accident that occurred on the night in question. Further, any testimony illicited by Yost’s counsel on cross-examination concerning Union Railroad’s prior safety record at the sites was in response to Union Railroad’s direct examination of its own employee, Mr. Babich. Review of the record discloses that Yost’s own prior service history was fully examined and we find the trial court’s refusal to admit Yost’s actual service record or file was not an abuse of discretion considering the prejudicial nature of a notation contained therein, which referred to Yost’s being fired years before for drinking on the job.

Union Railroad’s next two claims on appeal deal with the trial court’s refusal to instruct the jury as requested. “The failure to give a requested point for charge, which is accurate and applicable, is reversible error if the appellant is prejudiced.” Furey v. Thomas Jefferson University, 325 Pa.Super. 212, 227, 472 A.2d 1083, 1091 (1984); Gombar v. Schaeffer, 202 Pa.Super. 282, 195 A.2d 527 (1963). Whether the jury should be instructed on a given point of law depends upon the facts and issues of the case. Ferrick Excavating and Grading Company v. Senger Trucking Company, 506 Pa. 181, 484 A.2d 744 (1985); Beary v. Container General Corporation, 368 Pa.Super. 61, 533 A.2d 716 (1987). Ultimately, the trial judge is responsible for defining all pertinent questions of law, and all issues which are relevant to pleadings and proof may become the subject of jury instructions. Bucchianeri v. Equitable Gas Company, 341 Pa.Super. 319, 491 A.2d 835 (1985); Perigo v. Deegan, 288 Pa.Super. 93, 431 A.2d 303 (1981).

First, Union Railroad claims the trial court erred in refusing to instruct the jury upon Yost’s duty to mitigate damages by having corrective surgery to stabilize his ankle. When determining damages for personal injuries in Pennsylvania, it is proper for a jury to consider the failure of the plaintiff to undergo surgery or medical treatment that an ordinarily prudent man would have submitted to under the circumstances in an effort to better his condition. Bartunick v. Koch, 404 Pa. 1, 170 A.2d 563 (1961); Potts v. Guthrie, 282 Pa. 200, 127 A. 605 (1925); Martin v. Johns-Manville Corporation, 322 Pa.Super. 348, 469 A.2d 655 (1983); Downs v. Scott, 201 Pa.Super. 278, 191 A.2d 908 (1963); Hilscher v. Ickinger, 194 Pa.Super. 237, 166 A.2d 678 (1960), aff'd, 403 Pa. 596, 170 A.2d 595 (1961). This principle is set forth in the Restatement (Second) of Torts § 918(1) (1979), “one injured by the tort of another is not entitled to recover damages for any harm that he could have avoided by the use of reasonable effort or expenditure after the commission of the tort,” and in comments c and d to that section:

c. Due care and causation. The factors determining whether an injured person has used care to avert the consequences of a tort are in general the same as those that determine whether a person has been guilty of negligent conduct____ He is required to exercise no more than reasonable judgment or fortitude; and, if different courses of action are open to him he is not required, as a condition to obtaining full damages, to choose the course that events later show to have been the best. He is not barred from full recovery by the fact that it would have been reasonable for him to make expenditures or subject himself to pain or risk; it is only when he is unreasonable in refusing or failing to take action to prevent further loss that his damages are curtailed.
d. Pain — Danger. A person injured by another frequently has great latitude in his selection of means to avoid further harm. Thus in an effort to save a limb, he may employ a competent surgeon for an operation that is both expensive and dangerous to life, and if the operation is unsuccessful, the tortfeasor will be required to pay both for the surgeon’s services and for the harm caused by the treatment. On the other hand, it is frequently reasonable for a person threatened by further harm from a tortious act to refuse to subject himself to pain or to a danger of a different kind, which it would be necessary to undergo if the further harm is to be averted. Thus it may not be unreasonable for a person whose leg has been improperly set by a negligent physician to refuse to submit to a rebreaking of the leg, with its attendant pain and doubtful result, for the purpose of straightening the leg. Likewise, a person who has been made deaf by an injury may not be unreasonable in refusing to submit to an operation in which there is a substantial chance of death or further physical impairment. Nevertheless, there are limits to what one may properly refuse. Thus a person who suffers a broken leg is not entitled to damages for permanent disability ensuing because of his obstinate failure to permit his leg to be set by a competent physician.

See Martin, supra; Downs, supra.

Upon careful review of the record and, more importantly, the trial transcript and deposition testimony presented to the jury, we find the jury was presented with sufficient evidence to necessitate instructions on Yost’s duty to mitigate damages through possible corrective surgery. As explained by Yost’s own physician, Dr. Barua, corrective surgery was possible but the possibility of complications existed, such as infection which is inherent in that type of surgery. Dr. Barua testified to a reasonable degree of medical certainty that, barring complications, Yost’s ankle would have been stable if Yost had submitted to the recommended surgery and rehabilitation. Even in his opening statement to the jury, Yost’s counsel stated there would be medical testimony presented concerning Yost’s ability to mitigate damages through a recommended surgical procedure. Additionally, Yost testified he felt surgery might do more harm than good. Under these circumstances it was within the jury’s province to decide whether Yost acted reasonably in deciding not to have the surgical procedure Dr. Barua recommended. For this reason, we are compelled to vacate the judgment entered below and order a new trial as to damages in accordance with this decision.

Similarly, we find merit to Union Railroad’s second claim of trial court error in failing to charge that the jury should not increase or decrease the amount of its verdict by reason of income tax considerations, because the amount awarded is not taxable income to a plaintiff in this type of case. We reverse on that ground also. This action was brought under the Jones Act, which Act enlarges the rule of liability under the maritime law by conferring on seamen or their representatives the rights afforded by the Federal Employers’ Liability Act (hereinafter “FELA”), 45 U.S.C. § 51 et seq., to recover damages resulting from an employer’s negligence. As a general matter, FELA and Jones Act cases are subject to state procedural rales, but the substantive law governing them is federal, with the propriety of jury instructions concerning the measure of damages being an issue of “substance” and determined by federal law. St. Louis Southwestern Railway Company v. Dickerson, 470 U.S. 409, 105 S.Ct. 1347, 84 L.Ed.2d 303 (1985); sec 32 Am.Jur.2d Federal Employers’ Liability and Compensation Acts § 60 (1982). In Norfolk and Western Railway Company v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980), reh’g denied, 445 U.S. 972, 100 S.Ct. 1667, 64 L.Ed.2d 250 (1980), the United States Supreme Court held that the state trial court erred in refusing a brief jury instruction as to the nontaxability of a FELA damage award. The Court recognized the tax consciousness of the American public and concluded that although the law was perfectly clear that the amount of any damages received on account of personal injuries or for wrongful death is not taxable income, it is possible that members of the jury may not be cognizant of such specifics in the law and a simple instruction would not be prejudicial to either party, “but would merely eliminate an area of doubt or speculation that might have an improper impact on the computation of the amount of damages.” Id. at 498, 100 S.Ct. at 760, 62 L.Ed.2d at 696. Accordingly, we find the trial court erred in refusing such an instruction and on remand for a trial on damages, we direct that an instruction consistent with Hep elt be given.

Union Railroad’s remaining claim concerns the trial court’s reduction of the verdict for previous LHWCA payments made by Union Railroad to Yost. Union Railroad paid $3,174.80 to Yost as compensation under the LHWCA and sought to reduce the verdict by that amount after trial. The trial court reduced the verdict by $1,904.88 or 60 per cent of the total amount Union Railroad requested, determining the other 40 per cent was not appropriate as a set off but was instead “reasonably and fairly attributable to attorney’s fees” (Slip Op., McGinley, J., 1/5/88, p. 5). We find the trial court’s refusal to set off the entire amount of LHWCA payments to be reversible error. A liability award under the Jones Act for personal injuries received is appropriately reduced by the amount of benefits paid by the defendant under the LHWCA. Cheuvront v. Pittsburgh & Lake Erie Railroad Company, 477 F.Supp. 193, 197 (W.D. Pa.1979). Such a reduction prevents a windfall or double recovery to the plaintiff and promotes the voluntary payment of LHWCA benefits. In fact, in this case no attorney’s fees were incurred in - collecting LHWCA benefits because Union Railroad voluntarily made the payments prior to Yost obtaining counsel.

The final issue on appeal is Yost’s sole claim for Pa.R.C.P. 238 delay damages, which the trial court first awarded and later vacated after determining Union Railroad “was not responsible for any delay” (Slip Op. at 6). Normally, our grant of a new trial on damages would render moot a claim for Rule 238 delay damages because the essential ingredient in determining any such award, i.e. the jury’s award, becomes unknown until the new trial is completed. However, upon considering recent case law by the United States Supreme Court, we can dispose of Yost’s claim. In Monessen Southwestern Railway Company v. Morgan, 486 U.S. —, 108 S.Ct. 1837, 100 L.Ed.2d 349 (1988), filed subsequent to the parties’ briefs in this appeal, the United States Supreme Court reversed our Pennsylvania Supreme Court, finding the availability of prejudgment interest under Pa.R.C.P. 238, as part of the determination of the proper measure of damages in FELA actions, is a matter of federal law and held that federal law does not authorize awards of prejudgment interest in FELA actions. In reaching this holding, the Court in Morgan detailed the history of FILA and Congress’ failure, either through its original enactment of FELA or subsequent amendments, to expressly dispense with the well-established common law doctrine barring the recovery of prejudgment interest and Congress’ failure to disturb 70 years of consistent judicial interpretation that prejudgment interest is not available under FELA. In light of Morgan, we find Yost’s claim for Rule 288 delay damages is without merit.

As to the appeal at No. 01867 Pittsburgh, 1987, the judgment is affirmed in part and reversed in part; we remand for a new trial as to damages only, consistent with this Opinion. As to the appeal at No. 00184 Pittsburgh, 1988, the Order vacating the award of delay damages is affirmed.

JURISDICTION RELINQUISHED.

      . We note that the proposed instruction in Liepelt simply stated, "your award will not be subject to any income taxes, and you should not consider such taxes in fixing the amount of your award." Liepelt, supra at 492, 100 S.Ct. at 757, 62 L.Ed.2d at 693.


author: POPOVICH, Judge:

text:
    551 A.2d 324
    Joan GULA, Appellant, v. John GULA, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 26, 1988.
    Decided Dec. 7, 1988.

      Bruce E. Cooper, Harrisburg, for appellant.
    Before KELLY, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal from an order entered on February 9, 1988 by the Schuylkill County Court of Common Pleas which dismissed the appellant’s exceptions to the Master’s report and adopted his recommendation that the parties’ 1971 ante-nuptial agreement is valid and enforceable. We affirm.

Herein, the appellant, Joan Gula, alleges that the parties’ ante-nuptial agreement is invalid and unenforceable because: 1) the agreement did not make reasonable provision for her; and 2) the agreement did not make a full and fair disclosure. More specifically, she alleges that the agreement does not disclose the statutory rights created by the Divorce Code of 1980 which she relinquished in the event of a separation or divorce. We find that the agreement made a full and fair disclosure. Consequently, we, too, find that the ante-nuptial agreement is valid and enforceable.

The record reveals that, following an extended relationship during which one child was born and another was conceived, Joan and John Gula married on July 2, 1972. Eventually, the marriage failed, and, on July 20, 1981, the appellant instituted divorce proceedings. Thereafter, the appellee, John Gula, interposed their ante-nuptial agreement as a defense against the appellant’s related claims for equitable distribution and alimony.

The ante-nuptial agreement was signed by the parties on December 21, 1971. The agreement provided, inter alia, that, upon the appellee’s death, the appellant would receive $5000.00 as full satisfaction of all claims, statutory or otherwise, against the appellee’s estate. The agreement specifically stated that a full and fair disclosure of the extent and value of their respective estates and current assets was made. Further, the agreement valued the appellee’s business and personal assets between the sums of $90,000.00 and $130,000.00; however, no itemization of the assets was included as a part of the agreement. The agreement included the following addendum which is the focal point of this appeal:

It is further agreed between HUSBAND and WIFE that in the event that a final decree in divorce is entered at anytime between HUSBAND and WIFE, or if HUSBAND and WIFE become separated, that the rights of each of the parties shall be the same as stated within the Antenuptial Agreement, to which this addendum is attached on the date above mentioned, to wit, five thousand dollars upon the death of HUSBAND to WIFE and nothing from WIFE’S estate.

After a hearing, the Master found that: 1) $5000.00 upon the appellant’s death was not reasonable provision for the appellee, a dependent spouse; and 2) full and fair disclosure of the appellee’s assets had been made. Accordingly, the Master upheld the validity of the ante-nuptial agreement. The lower court agreed that the ante-nuptial agreement was valid and enforceable, and this appeal followed.

Recently, in In re Estate of Geyer, 516 Pa. 492, 533 A.2d 423 (1987) (Plurality), our Supreme Court dealt with the issue of the enforceability of ante-nuptial agreements. The Geyer Court quoted extensively from their lead decision of In re Hillegass Estate, 431 Pa. 144, 244 A.2d 672 (1968), as follows:

(1) An Antenuptial Agreement is presumptively valid and binding upon the parties thereto.
(2) The person seeking to nullify or avoid or circumvent the Agreement has the burden of proving the invalidity of the Agreement by clear and convincing evidence that the deceased spouse at the time of the Agreement made neither (a) a reasonable provision for the intended spouse, nor (b) a full and fair disclosure of his (or her) worth.
(3) In evaluating the reasonableness of the provision for the survivor, such reasonableness must be determined as of the time of the Agreement and not by hindsight. Reasonableness will depend upon the totality of all the facts and circumstance at the time of the Agreement, including (a) the financial worth of the intended husband; (b) the financial status of the intended wife; (c) the age of the parties; (d) the number of children each has; (e) the intelligence of the parties; (f) whether the survivor aided in the accumulation of the wealth of the deceased spouse; and (g) the standard of living which the survivor had before marriage and could reasonably expect to have during marriage.
(4) Full and fair disclosure does not require the disclosure of the exact amount of his or her property.
(5) Even where there is a valid Antenuptial Agreement, this does not prohibit subsequent inter vivos gifts and testamentary bequests to a surviving spouse.

Estate of Geyer, 516 Pa. at 501-502, 533 A.2d at 427, quoting Hillegass Estate, 431 Pa. at 150-151, 244 A.2d at 675-676 (emphasis in original, citations omitted).

After reiterating the well established law regarding ante-nuptial agreements, the Geyer Court expanded the requirements for a “full and fair disclosure.” The Court stated:

We therefore think it is fair and reasonable, as well as sound judicial policy, to require that any agreement which seeks to change the duly enacted public policy of this Commonwealth must be based on nothing less than full and fair disclosure. Such disclosure must include both the general financial pictures of the parties involved, and evidence that the parties are aware of the statutory rights which they are relinquishing.

Estate of Geyer, 533 A.2d at 429-430 (footnote omitted).

The foregoing statement not only appears to require a full and fair disclosure including a complete disclosure of statutory rights but also appears to require a full and fair disclosure regardless of the reasonableness of the provision for the intended spouse. However, such a holding is clearly contrary to the language of Hillegass, supra, which the Geyer Court quoted without reservation. In Simeone v. Simeone, supra, we resolved this apparent conflict as follows:

Accordingly, our interpretation of Geyer is as follows: (1) the concept of “full and fair disclosure” was expanded to include the disclosure of statutory rights; and (2) the Hillegass holding that ante-nuptial agreements are valid in the presence of either full and fair disclosure or a reasonable provision for the intended spouse remains unchanged.

Simeone v. Simeone, supra, 551 A.2d at 223 (emphasis in original).

Instantly, we will assume arguendo that $5000.00 was not reasonable provision for the appellant. Now, we must discuss whether a full and fair disclosure was made. Full and fair disclosure does not require disclosure of the exact amount of the party’s assets; rather, there must be a sufficient disclosure to allow the intended party to make an informed decision concerning the rights which are relinquished pursuant to the agreement. Estate of Geyer, 516 Pa. at 501, 533 A.2d at 427; Kaufmann’s Estate, 404 Pa. 131, 171 A.2d 48 (1961); Nigro v. Nigro, 371 Pa.Superior Ct. at 631, 538 A.2d at 913-914; Nitkiewicz v. Nitkiewicz, 369 Pa.Superior Ct. at 510, 535 A.2d at 667. In the agreement, the appellee disclosed that his assets at the time of the agreement were valued between $90,000.00 and $130,000. The agreement further provided that full disclosure was made by the appellee and that the appellant was invited to examine in detail the appellee’s finances.

Absent evidence to the contrary, we are constrained to hold that the appellee fully and fairly disclosed his worth. Instantly, the appellant bears the burden of proving the invalidity of the agreement by clear and convincing evidence of the appellee’s failure to disclose his worth fully and fairly. Nigro v. Nigro, 371 Pa.Superior Ct. at 631, 538 A.2d at 913, citing Estate of Geyer, 516 Pa. at 501-502, 533 A.2d at 427. The record, however, is void of any evidence which would indicate that the valuation included in the agreement was not accurate. Therefore, we find that the appellee fully and fairly disclosed his financial status,

Now, we turn to the crucial issue of this case, whether the appellee was required to disclose the statutory rights which the appellant relinquished when, in fact, those rights were not created until after the parties entered into the ante-nuptial agreement, The law is clear in Pennsylvania; parties may, through an ante-nuptial or post-nuptial agreement, contract away their statutory rights to alimony and support. Simeone v. Simeone, supra; Nigro v. Nigro, supra; Nitkiewicz v. Nitkiewicz, supra; Laub v. Laub, supra.

Instantly, the appellant claims that a full and fair disclosure did not occur because she was not apprised in the agreement of her statutory rights to alimony and equitable distribution created by the Divorce Code of 1980. Ruling upon similar facts, in Laub v. Laub, supra, we held that the Divorce Code does not affect a marital agreement entered into prior to the effective date of the Divorce Code. In so ruling, we set forth the following discussion:

The agreements were entered into prior to the effective date of the Divorce Code which provides in Section 103:
This Act shall not affect any marital agreement executed prior to the effective date of this act or any amendment or modification thereto.
1980, April 1, P.L. 63, No. 26, § 103, effective in 90 days.
Not only does the Act itself provide that it shall not affect a marital agreement entered into before the effective date of the Act, but the question was addressed in Wolfe v. Wolfe, 341 Pa.Super. 313, 318, 491 A.2d 281, 283 (1985) which held that a valid post-nuptial agreement entered into prior to the effective date of the Divorce Code bars a claim for equitable distribution under the Code. In Wolfe, the wife claimed that the post-nuptial agreement was not complete because she could not waive her right to equitable distribution since the right had not yet come into existence. We quoted from a New York decision in Boss v. Boss, 107 Misc.2d 984, 436 N.Y.S.2d 167 (1981) dealing with a New York statutory provision similar to 23 P.S. § 103 wherein the court stated:
Part of the quid pro quo which one gives up when one enters into a comprehensive agreement such as this is, [sic] the possibility that the law may change in one’s favor. A stable and sure arrangement in the present is preferred to the mere “possibility” of a better result in the future.
Boss v. Boss, 107 Misc.2d 984, 436 N.Y.S.2d 167 (1981). The fact that the instant case involved a pre-marital agreement rather than a post-nuptial agreement is of no material consequence.

Laub v. Laub, 505 A.2d at 292-293.

We reiterate that an ante-nuptial agreement entered into prior to the effective date of the Divorce Code is not affected by the Divorce Code with respect to those statutory rights created after the contract was made. Even in light of our holding in Simeone v. Simeone, supra, and our Supreme Court’s plurality decision in Estate of Geyer, supra, which require disclosure of statutory rights, we hold that parties are not required to disclose those rights which have yet to be created in order to insure the validity of their ante-nuptial agreement. Certainly, want of a disclosure of statutory rights which are not in existence at the time of entering an ante-nuptial agreement does not invalidate an otherwise valid and enforceable agreement. Instantly, we find the parties ante-nuptial agreement is valid and enforceable, despite the fact that the agreement did not disclose her statutory rights pursuant to the Divorce Code of 1980. Consequently, the appellant's claims for equitable distribution and alimony are barred by the anti-nuptial agreement. Order affirmed.

ORDER AFFIRMED.

      . Before reaching the merits of this appeal, we note that the order of February 9, 1988 sub judice is a final appealable order, despite the fact that the appellant filed her appeal prior to entry of a final divorce decree. See e.g. Nigro v. Nigro, 371 Pa.Super. 625, 538 A.2d 910, 912-913 (1988); Laub v. Laub, 351 Pa.Super. 110, 505 A.2d 290 (1986). We further note that, subsequent to the filing of the present appeal, a final divorce decree was entered on September 28, 1988, which granted divorce to the parties and denied ancillary relief to the appellant pursuant to the order of February 9, 1988.

      . We note that both Estate of Geyer, supra, and Hillegass Estate, supra, deal with the application of ante-nuptial agreements upon the death of a spouse. However, both cases have equal application when the triggering mechanism is a separation or divorce when the agreement is actually a post-nuptial contract. See Simeone v. Simeone, 380 Pa.Super. 37, 551 A.2d 219 (1988); Nigro v. Nigro, 371 Pa.Superior Ct. 625, 538 A.2d 910; Nitkiewicz v. Nitkiewicz, 369 Pa.Super. 504, 535 A.2d 664 (1988).

      . For an in depth discussion of how this conclusion was reached, see Simeone v. Simeone, supra, 380 Pa.Superior Ct. at 41-46, 551 A.2d at 221-223.

      . For examples of evaluation of the reasonableness of a provision for an intended spouse, see Simeone v. Simeone, supra, 380 Pa.Superior Ct. at 42-48, 551 A.2d at 222-224; Nigro v. Nigro, 371 Pa.Superior Ct. at 630-631, 538 A.2d at 913; Estate of Geyer, 516 Pa. at 502, 533 A.2d at 428-429; Hillegass Estate, 431 Pa. at 150-152, 244 A.2d at 675-676.

      . In Simeone v. Simeone, supra, we were asked to address the very question now before us, i.e., whether the ante-nuptial agreement is rendered void when the appellant lacked an awareness of the statutory rights she relinquished upon its execution. However, we did not reach the issue since we found that the agreement made reasonable provision for the appellant. Simeone v. Simeone, supra, 380 Pa.Superior Ct. at 48, 551 A.2d at 224.

      . In Laub v. Laub, supra, we pointed to a Montgomery County case as support for our decision, stating:
      In Fox v. Fox, 114 Montgomery County L.R. 145 (1984) the parties entered into an ante-nuptial agreement in which the parties waived rights to alimony pendente lite, counsel fees, costs and support. Both parties agreed that they could dispose of their own property and each waived statutory rights and common law rights in the property of the other. The court held that the agreement was valid and under Section 103 of the Divorce Code with respect to equitable distribution and alimony.

        Laub v. Laub, 505 A.2d at 293.

      . While not reaching the issue before us, this court in Simeone v. Simeone, supra, 380 Pa.Superior Ct. at 46, 551 A.2d at 223, intimated the decision we reach instantly, when we noted, "In Laub, we also held that under Section 103 of the Divorce Code of 1980, agreements entered into prior to the effective date of the act, would not be affected by the act nor any modification or amendment thereto. This is important as appellant claims that she was not informed of her statutory rights; however, it was not until the Divorce Act of 1980 that many of her claims arose."


author: WIEAND, Judge:

text:
    551 A.2d 573
    Marjilou VITO, Appellee, v. Salvatore VITO, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 8, 1988.
    Filed Dec. 13, 1988.
    Reargument Denied Feb. 6, 1989.

      Robert M. Rosenblum, Stroudsburg, for appellant.
    Before WIEAND, McEWEN and MELINSON, JJ.
   WIEAND, Judge:

Salvatore Vito was found guilty of contempt for violating an order entered pursuant to the Protection From Abuse Act of October 7, 1976, P.L. 1090, No. 218, 35 P.S. § 10181 et seq. He was sentenced to serve a six month period of probation upon the following conditions:

1. You shall undergo an inpatient evaluation for drug and alcohol abuse at the Marworth Treatment Center in Waverly, Pennsylvania.
2. You shall refrain from any use of controlled substance or alcohol during the period of this probation. You shall be subject to random urinalysis by the Monroe County Probation Department to verify your compliance with that term of probation.
You are further directed to supply the Monroe County Probation Department with a schedule of your activities each week in advance, and you are to comply with any request they make for random urinalysis.

On direct appeal, Vito argues that the trial court refused to recognize that he was being tried for a criminal offense and accord to him the procedural safeguards accompanying such a proceeding. We are constrained to agree. Therefore, we reverse and remand for a new trial.

The Supreme Court of the United States discussed the difference between civil and criminal contempt in Hicks v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988) and held that the nature of the proceedings must be determined “from an examination of the character of the relief itself.” Id. at —, 108 S.Ct. at 1432, 99 L.Ed.2d at 734.

The Court said:

The question of how a court determines whether to classify the relief imposed in a given proceeding as civil or criminal in nature, for the purposes of applying the Due Process Clause and other provisions of the Constitution, is one of long standing, and its principles have been settled at least in their broad outlines for many decades. When a State’s proceedings are involved, state law provides strong guidance about whether or not the State is exercising its authority “in a nonpunitive, noncriminal manner,” and one who challenges the State’s classification of the relief imposed as “civil” or “criminal” may be required to show “the clearest proof” that it is not correct as a matter of federal law. Allen v. Illinois, 478 U.S. 364, 368-369 [106 S.Ct. 2988, 2992, 92 L.Ed.2d 296] (1986). Nonetheless, if such a challenge is substantiated, then the labels affixed either to the proceeding or to the relief imposed under state law are not controlling and will not be allowed to defeat the applicable protections of federal constitutional law. Ibid. This is particularly so in the codified laws of contempt, where the “civil” and “criminal” labels of the law have become increasingly blurred.
Instead, the critical features are the substance of the proceeding and the character of the relief that the proceeding will afford. “If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court.” Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441 [31 S.Ct. 492, 498, 55 L.Ed. 797] (1911). The character of the relief imposed is thus ascertainable by applying a few straightforward rules. If the relief provided is a sentence of imprisonment, it is remedial if “the defendant stands committed unless and until he performs the affirmative act required by the court’s order,” and is punitive if “the sentence is limited to imprisonment for a definite period.” Id., at 442 [31 S.Ct. at 498]. If the relief provided is a fine, it is remedial when it is paid to the complainant, and punitive when it is paid to the court, though a fine that would be payable to the court is also remedial when the defendant can avoid paying the fine simply by performing the affirmative act required by the court’s order. These distinctions lead up to the fundamental proposition that criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings, including the requirement that the offense be proved beyond a reasonable doubt. See, e.g., Gompers, supra, at 444 [31 S.Ct. at 499]; Michaelson v. United States ex rel. Chicago, St. P., M. & O. R. Co., 266 U.S. 42, 66 [45 S.Ct. 18, 20, 69 L.Ed. 162] (1924).

Id. at---=, 108 S.Ct. at 1429-1430, 99 L.Ed.2d at 731-732 (footnotes omitted).

Pennsylvania courts have also recognized and adhered to this distinction. The case of In re Martorano, 464 Pa. 66, 346 A.2d 22 (1975) provided the Pennsylvania Supreme Court an opportunity to review the distinction; and the Court responded by saying that judicial responses to contumacious behavior are classified

according to the dominant purpose of the court. If the dominant purpose is to prospectively coerce the contemnor to comply with an order of the court, the adjudication of contempt is civil. If, however, the dominant purpose is to punish the contemnor for disobedience of the court’s order or some other contemptuous act, the adjudication of contempt is criminal.
Dominant purpose of coercion or punishment is expressed in the sanction imposed. A civil adjudication of contempt coerces with a conditional or indeterminate sentence of which the contemnor may relieve himself by obeying the court’s order, while a criminal adjudication of contempt punishes with a certain term of imprisonment or a fine which the contemnor is powerless to escape by compliance.
The civil-criminal classification of contempt exists solely for determination of a contemnor’s procedural rights and a court’s sentencing options. Quite simply, a contemnor who will be sentenced to a determinate term of imprisonment or a fixed fine, which he is powerless to escape by purging himself of his contempt, is entitled to the essential procedural safeguards that attend criminal proceedings generally.

Id., 464 Pa. at 78-80, 346 A.2d at 28-29 (citations and footnotes omitted). See also: Fatemi v. Fatemi, 371 Pa.Super. 101, 111-112, 537 A.2d 840, 845 (1988); Colbert v. Gunning, 368 Pa.Super. 28, 31, 533 A.2d 471, 472 (1987); Bruzzi v. Bruzzi, 332 Pa.Super. 346, 351-353, 481 A.2d 648, 651-652 (1984); Grubb v. Grubb, 326 Pa.Super. 218, 222-223, 473 A.2d 1060, 1062 (1984); Kramer v. Kelly, 265 Pa.Super. 58, 63-64, 401 A.2d 799, 801-802 (1979).

In Cipolla v. Cipolla, 264 Pa.Super. 53, 398 A.2d 1053 (1979), the Superior Court diseussed indirect criminal contempt proceedings and described the procedural safeguards to which a defendant is entitled. It said:

Criminal contempt is a crime in every fundamental respect. Codispotti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974); Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968). In re Johnson, 467 Pa. 552, 359 A.2d 739 (1976).
Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both. In the words of Mr. Justice Holmes:
“These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech.” Gompers v. United States, 233 U.S. 604, 610, 34 S.Ct. 693 [695], 58 L.Ed. 1115 (1914).
Criminally contemptuous conduct may violate other provisions of the criminal law; but even when this is not the case convictions for criminal contempt are indistinguishable from ordinary criminal convictions, for their impact on the individual defendant is the same. Indeed, the role of criminal contempt and that of many ordinary criminal laws seem identical — protection of the institutions of our government and enforcement of their mandates.
Bloom, supra, 391 U.S. at 201, 88 S.Ct. at 1481-2. In Michaelson v. U.S. ex rel. Chicago, St. P., M. & O. R. Co., 266 U.S. 42, 66, 45 S.Ct. 18, 20, 69 L.Ed. 162 (1924) the court stated, “[T]he fundamental characteristics of both [crimes and criminal contempts] are the same.”
Recognizing the inherent criminal nature of this type of contempt, the legislature has enshrouded the proceeding with appropriate procedural safeguards. Thus, where one is accused of indirect criminal contempt, he shall enjoy the normal rights as to admission to bail, Judicial Code, Act of July 9, 1976, P.L. 586, No. 142 and amended by Act of April 28, 1978, No. 53 (42 Pa.C.S.A. § 4135); cf. In re Marshall’s Estate, 416 Pa. 64, 204 A.2d 243 (1964); rights to be notified of the accusation and time to prepare a defense, Judicial Code, § 4135, supra; In re Galloway, 480 Pa. 1, 389 A.2d 55, 57 (1978) (Roberts, J., concurring); Commonwealth v. Garrison, 478 Pa. 356, 386 A.2d 971 (1978); and the right to a speedy and public trial by impartial jury, Judicial Code. [Commonwealth v.] Charlett [481 Pa. 22, 391 A.2d 1296, 1298 (1978)] supra, (declaring statutory right to trial by jury in indirect criminal contempt proceeding is also guaranteed by the Sixth Amendment to the U.S. Constitution); Altermose [Construction Co. v. Building and Construction Trades Council of Philadelphia and Vicinity et al., 449 Pa. 194, 296 A.2d 504] supra, (declaring the several mandates of former 17 P.S. § 2047 are but “declaratory of the constitutional guarantees of due process of law”); Commonwealth v. Fletcher, 441 Pa. 28, 269 A.2d 727 (1970). Additionally, the alleged contemnor is entitled to the assistance of counsel, Commonwealth v. Crawford, 466 Pa. 269, 352 A.2d 52 (1976); Commonwealth v. Abrams, 461 Pa. 327, 336 A.2d 308 (1975) and may only be found guilty if every element of the crime is proven beyond a reasonable doubt, In re Johnson, supra, 467 Pa. 552, 359 A.2d 739 (1976). In short, the accused in such a proceeding “is entitled to the essential procedural safeguards that attend criminal proceedings generally.” In re Martorano, 464 Pa. 66, 80, 346 A.2d 22, 29 (1975).

Id., 264 Pa.Superior Ct. at 58-60, 398 A.2d at 1055-1056 (footnotes omitted). See also: Altermose Construction Co. v. Building and Construction Trades Council of Philadelphia and Vicinity et al., 449 Pa. 194, 221, 296 A.2d 504, 519 (1972) (Opinion in Support of Affirmance, Pomeroy, J.), cert. denied, 411 U.S. 932, 93 S.Ct. 1901, 36 L.Ed.2d 392 (1973); Knaus v. Knaus, 387 Pa. 370, 375, 127 A.2d 669, 672 (1956); L & J Equipment Co., Inc. v. United Mine Workers of America, 339 Pa.Super. 51, 56-58, 488 A.2d 303, 306-307 (1985); Schnabel Associates, Inc. v. Building and Construction Trades Council of Philadelphia and Vicinity, AFL-CIO, 338 Pa.Super. 376, 387, 487 A.2d 1327, 1333 (1985); 42 Pa.C.S. § 4136.

In the instant case, appellant was accused of violating a court order entered pursuant to the Pennsylvania Protection from Abuse Act. He was accused via petition filed by his wife, containing averments that he had violated the protection order by acts of domestic violence. This petition was filed consistently with Section 10 of the Protection from Abuse Act which provides that “[u]pon violation of a protection order or a court approved consent agreement the court may hold the defendant in indirect criminal contempt and punish him in accordance with law." 35 P.S. § 10190(a), as amended. In requiring that defendant be found in contempt and punished according to law, it will be observed, the legislature did not in any way attempt to alter or circumvent the rights of a defendant in criminal contempt proceedings.

The trial court, following hearing, found that appellant had violated the court’s order and was in contempt of court. The court thereupon sentenced appellant to probation and imposed the conditions hereinbefore recited. The sentence was not conditional upon appellant’s failure to purge himself of contempt. Appellant was powerless to escape the court’s sentence by compliance with the protection order. As such, it was punitive and not coercive. Because the sentence was punitive and was intended to vindicate the authority of the court, it was criminal in nature and not civil. Such a sentence for contempt cannot properly be imposed unless the defendant has been afforded the protections which the federal and state constitutions require in criminal proceedings.

Despite objections repeatedly made by appellant’s counsel, the trial court refused to acknowledge that the proceedings were criminal in nature and apply constitutional safeguards. Instead, the trial judge announced that the hearing was a “domestic matter” in which he would allow the parties to have their say and then “do something fair and equitable.” When appellant objected to testimony pertaining to acts not alleged in the petition on grounds that there had been no prior notice, the following occurred:

THE COURT: Mr. Anders, stop interrupting the witness.
MR. ANDERS [Appellant’s Counsel]: Your Honor, I want a continuing objection to all this because I had no prior notice of this alleged in the petition. I’m here to defend a criminal proceeding, and now we’re getting into allegations which I have no notice of.
THE COURT: For your information, it is not a criminal proceeding.
MR. ANDERS: It is a criminal proceeding.
THE COURT: One of the consequences of this is your client can be held in indirect criminal contempt.
MR. ANDERS: And my client has the same rights as anyone else in any criminal proceeding, and I have case law on it, your Honor.
THE COURT: Your objection is noted and overruled.

At another point in the proceedings, appellant’s counsel objected to the testimony of the petitioning wife when she attempted to describe an event which, according to her own admission, she had not observed. In response to this objection, the following occurred:

THE COURT: Mr. Anders, just a moment. Let me interrupt a minute. Just a moment. Just a moment. I want to explain everything to these people here.
This is a domestic matter. This matter is of great importance to these two people and I want to hear it and try to do something fair and equitable. I do not want continuous interruptions. If this party has something to say which does not relate things she knows, or she is not competent, you made objections; they were noted. We will not consider them to have great weight, but this constant interrupting is disruptive and I want it to stop.
MR. ANDERS: For the record, as I said before, your Honor believes it is not a criminal proceeding, but my client can be put in jail. She told the Court what happened, and then said she didn’t see it. I think I can have an objection if she testifies to something she didn’t see.
THE COURT: That goes to the weight, Mr. Anders. You’re constantly interrupting, and it’s very offensive to the witness and I instruct you to stop it. You have a continuing objection to any matter she testifies to which is not based on her personal observations, all right? Do you understand that?
MR. ANDERS: No, I don’t, your Honor.
THE COURT: Well, you ought to; so, just be seated.

Appellant argues that the trial court, because of its failure to recognize that it was hearing a criminal matter, applied an improper burden of proof. The law is clear that in criminal contempt proceedings, guilt must be proved beyond a reasonable doubt. Hicks v. Feiock, supra; Cipolla v. Cipolla, supra. Whether the court required something less than proof beyond a reasonable doubt, however, is not certain. The trial court has not disclosed the burden of proof which it applied. It is abundantly clear from the record, however, that the trial court repeatedly misperceived the nature of the proceedings which it was hearing. Under these circumstances, the trial court may well have misperceived also the burden of proof which had to be met before appellant could be found guilty of criminal contempt. In any event, because the trial court failed to understand the nature of the proceedings and thereby failed to accord to appellant the constitutional protections required in criminal proceedings, a new trial is required.

Reversed and remanded for a new trial. Jurisdiction is not retained.

      . The specific questions raised on appeal are stated as follows:

        A. WHETHER THE APPELLANT IS ENTITLED TO A NEW TRIAL SINCE HE WAS DENIED HIS CONSTITUTIONAL DUE PROCESS RIGHT TO A FAIR TRIAL AS GRANTED BY THE CONSTITUTION OF THE UNITED STATES AND THE COMMONWEALTH OF PENNSYLVANIA.
      B. WHETHER THE APPELLANT IS ENTITLED TO A NEW TRIAL SINCE THE TRIAL COURT DENIED HIM HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
      C. WHETHER THE APPELLANT SHOULD BE GRANTED A NEW TRIAL SINCE THE TRIAL COURT APPLIED THE WRONG BURDEN OF PROOF AND THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

      . The order was as follows:
      AND NOW, February 10, 1987, the respondent having specifically denied any wrongdoing, but the parties having agreed to the entry of an Order, it is ordered as follows:
      1. The respondent, Salvatore Vito, is directed to refrain from any physical abuse, harassment or threats thereof toward the petitioner, Marjilou Viot, [sic] and their children.
      2. Exclusive possession of the marital premises at RD 7, Box 7312, Stroudsburg, Pennsylvania is granted to the petitioner, and the respondent shall not enter upon said premises, except for the purpose of picking up or dropping off the children, or upon specific invitation of the petitioner.
      3. This Order shall remain in effect for a period of one year from today's date.
      4. A copy of this Order shall be served upon the Stroud Township Police Department, which shall constitute sufficient warrant for the arrest of the respondent in the event he should violate this Order.

      . The statute provides, however, that there is no right to trial by jury on charges of indirect criminal contempt arising under the Protection from Abuse Act. See: 35 P.S. § 10190(b).

      . A defendant in a criminal contempt proceeding is entitled to "reasonable notice of the specific contempt charges against him.” Commonwealth v. Mayberry, 459 Pa. 91, 106, 327 A.2d 86, 94 (1974).


text:
    551 A.2d 578
    Crystal GREEN, a minor by her parent and natural guardian Charlotte GREEN, and Charlotte Green in her own right, Appellants, v. SEPTA, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 7, 1988.
    Filed Dec. 14, 1988.

      Dale G. Larrimore, Philadelphia, for appellants.
    Before WIEAND, McEWEN and MELINSON, JJ.
   WIEAND, Judge:

Because of injuries sustained by Crystal Green in a fall on subway stairs, a civil action was commenced against SEPTA by Charlotte Green in her own right and on behalf of Crystal, her minor daughter. The action was settled prior to trial and during the discovery stage for the sum of ten thousand ($10,000.00) dollars. A petition was then prepared and presented to the trial court requesting approval of the settlement and directing distribution of the proceeds.

The petition for approval suggested distribution as follows:

The petition for approval suggested distribution as follows:
GROSS SETTLEMENT ....................................$10,000.00
TO: DEUTSCH & LARRIMORE, P.C. (Costs) ............. -123.69
NET RECOVERY ........................................$ 9,876.31
TO: DEUTSCH & LARRIMORE, P.C. (Fee) ............... -3,292.10
Recovery for minor and parent plaintiffs ..................$ 6,584.21
TO: DR. JERRY MURPHY ..............................$ 1,605.00
TO: 7622 MEDICAL CENTER ............................$ 90.00
TO: SHELLYS SURGICAL SUPPLIES ....................$ 399.99
TO: DR. FRANK MONTIQUE ...........................$ 300.00
TO: CRYSTAL GREEN, a minor, to be deposited in a federally insured interest bearing account or savings certificate, to be marked “Not to be withdrawn until said minor attains majority, except as authorized by a further order of this Court.” .............................................$ 4,189.22
The trial court, however, modified the suggested order of distribution and directed that distribution be made as follows:
$10,000.00 ......... gross settlement
-$123.69 ......... costs
-$2,394,99 ......... medical bills
$7,481.32 ......... net recovery
-$2,493.74 ......... To: Deutsch & Larrimore (Fee)
$4,987.58 ......... To: Minor plaintiff and guardian

The effect of the court’s order was to reduce the amount of counsel fees proposed in the petition and thereby increase the amount distributable to and on behalf of the minor plaintiff.

An appeal was filed from this order by the minor plaintiff and her mother. Trial counsel continued to represent them on appeal and argued only that the settlement court had abused its discretion by reducing the amount of counsel fees. Neither the minor plaintiff nor her mother was separately represented before this Court, and SEPTA did not appear or file a brief.

The law is clear that only an aggrieved party can appeal from an order entered by a trial court Pa.R.A.P. 501. To be “aggrieved” a party must have been adversely affected by the decision from which the appeal is to be taken. In re Appeal of Estate of Achey, 86 Pa.Cmwlth. 385, 392-393, 484 A.2d 874, 878 (1984), aff'd., 509 Pa. 163, 501 A.2d 249 (1985) (per curiam); In re Controller’s Report, Year 1972, of Lackawanna County, 37 Pa.Cmwlth. 580, 589, 390 A.2d 1368, 1372 (1978). See also: In the Matter of Harrison Square, Inc., 263 Pa.Super. 324, 327, 397 A.2d 1230, 1231-1232 (1979); Prior v. Borough of Eddystone, 30 Pa.Cmwlth. 536, 538 n. 1, 374 A.2d 981, 982 n. 1 (1977). Generally, a prevailing party is not “aggrieved,” and, therefore, does not have standing to appeal an order which has been entered in his or her favor. See: In re Appeal of Estate of Achey, supra, 86 Pa.Cmwlth. at 394, 484 A.2d at 879; Burchanowski v. County of Lycoming, 32 Pa.Cmwith. 207, 210, 378 A.2d 1025, 1027 (1977).

In the instant case, it is readily apparent that the plaintiffs have not been “aggrieved” by the trial court’s order which reduced the amount of counsel fees payable from the settlement proceeds and increased the amount distributable to the minor plaintiff. Because they have not been aggrieved by the trial court’s order, they do not have standing to appeal therefrom.

The party aggrieved by the trial court’s order is the lawyer who represented the plaintiffs and whose fees were reduced by the trial court. To obtain a review of the trial court’s order reducing counsel fees, it was necessary that counsel file an appeal in his own name. If such an appeal had been filed, the clients would then have been able to obtain other counsel to represent their separate interests.

We will not permit counsel to use an appeal by his clients as a means for advancing his own interest at the expense of his clients whose interests are not separately represented.

APPEAL DISMISSED.

      . Pa.R.C.P. 2039 requires court approval of a minor’s settlement as follows:

        (a) No action to which a minor is a party shall be compromised, settled or discontinued except after approval by the court pursuant to a petition presented by the guardian of the minor.
      (b) When a compromise or settlement has been so approved by the court, or when a judgment has been entered upon a verdict or by agreement, the court, upon petition by the guardian or any party to the action, shall make an order approving or disapproving any agreement entered into by the guardian for the payment of counsel fees and other expenses out of the fund created by the compromise, settlement or judgment; or the court may make such order as it deems proper fixing counsel fees and other proper expenses.