author: CIRILLO, Judge:

text:
    652 A.2d 331
    ESTATE OF Florence Earle COATES, Deceased. Appeal of: PENNSYLVANIA HOSPITAL. ESTATE OF George H. EARLE, Sr., Deceased. Appeal of: PENNSYLVANIA HOSPITAL.
    Superior Court of Pennsylvania.
    Argued Oct. 20, 1994.
    Filed Dec. 23, 1994.

      Ann T. Loftus, Philadelphia, for appellant.
    Edmund P. Butler, Philadelphia, for Adamson and Walton, participating parties.
    Before CIRILLO, OLSZEWSKI and HESTER, JJ.
   CIRILLO, Judge:

Appellant Pennsylvania Hospital (Hospital) appeals from the final decrees dated September 20, 1993 of the Orphan’s Court Division of the Court of Common Pleas of Philadelphia County. We affirm.

Florence Earle Coates (Testatrix) died on April 6, 1927, leaving a will dated September 24, 1926. By her will, Testatrix had her residuary estate placed in trust to pay the net income to her daughter Alice N. Trask (Alice) for life. Upon the death of Alice, the trustee was to pay the income in equal shares to the children of Alice, the survivors and survivor of them, until the death of the last of Testatrix’s grandchildren. Testatrix’s residuary trust further provided that, upon the death of her last surviving grandchild, the income should be paid to her great-grandchildren per stirpes, to continue so long as permitted by the laws of the Commonwealth of Pennsylvania or until the death of such great-grandchildren. Testatrix’s residuary trust then provided that, upon the termination of the trust, the principal was to be divided into two equal shares. One such share was to be paid to Hospital, and the other share was to go to the Pennsylvania Academy of Fine Arts. Thus, Hospital is a remainder beneficiary under the will of Testatrix.

Testatrix was the daughter of George H. Earle, Sr., who died on June 18, 1907, leaving a will dated June, 1905. According to the will of George H. Earle, Sr., a one-fifth share of his residuary estate was held in trust paying the net income to Testatrix for her life, and at her death was subject to her general testamentary power of appointment. Subsequent to Testatrix’s death in 1927, it was determined in a 1939 adjudication of the Philadelphia Orphan’s Court that the residuary provisions of Testatrix’s 1926 will were an exercise of her general testamentary power of appointment under the will of George H. Earle, Sr. As a result, the residuary provisions of Testatrix’s will also govern distribution of the trust under the will of George H. Earle, Sr.

Testatrix’s daughter, Alice N. Trask, died on August 6, 1955, leaving three children: Alice Trask Adamson Mosley, Florence Earle Trask Walton, and Frances D. Trask, all of whom were lives in being on April 6, 1927 (the date of Testatrix’s death). Testatrix’s grandchild, Alice Trask Adam-son Mosley, died on April 30, 1972, leaving a daughter, Alice Adamson Feeney (born 1928). Testatrix’s grandchild, Florence Earle Trask Walton, died on September 10, 1974, and was survived by her children, Florence Walton (born 1930), Charles S. Walton, III (born 1933), and Joseph W. Walton, Jr. (born 1927; died 1977). Testatrix’s last surviving grandchild, Francis D. Trask, died without issue on October 2, 1987. None of the now living great-grandchildren of the Testatrix (Alice Adamson Feeney, Florence Walton, and Charles S. Walton, III), were lives in being at Testatrix’s death in 1927.

Hospital objects to the distribution of income, and the proposed distribution of future income, to Testatrix’s great-grandchildren. Hospital bases this objection on the grounds that the residuary trust under the will of Testatrix, and the trust under the will of George H. Earle, Sr., terminated at the death of Testatrix’s last surviving grandchild because the purported income interests to the great-grandchildren of Testatrix are invalid under the common law rule against perpetuities.

On April 1, 1993, Auditing Judge Theodore A. McKee, now judge of the U.S. Court of Appeals for the Third Circuit, dismissed Hospital’s objections. On April 21, 1993, Hospital filed exceptions to the Auditing Judge’s Amended Adjudications. On September 20, 1993, the Honorable Edmund S. Pawlec, writing for the Orphan’s Court en banc, dismissed Hospital’s exceptions, and confirmed the Amended Adjudications of the Auditing Judge absolutely. Hospital timely filed this present appeal from the Orphan’s Court final decree, and currently raises two issues for our review:

(1) Whether the doctrine of “vertical separability” applies in the instant case to validate estates which would otherwise be invalid under the “possibilities test” of the common law rule against perpetuities?
(2) Whether the retroactive application of the “actualities test” of the statutory rule against perpetuities under 20 Pa.C.S.A. § 6104 is an unconstitutional taking of property without due process of law?

Hospital’s first argument challenges the finding of the Orphan’s Court that the doctrine of “vertical separability” applies to preserve the estates of Testatrix’s great-grandchildren, when these estates would otherwise be invalid under the “possibilities test” of the common law rule against perpetuities. When we review a decision of the Orphan’s Court, our task is to insure that the record is free from legal error. In Re Estate of Lychos, 323 Pa.Super. 74, 470 A.2d 136 (1983); In Re Estate of Dembiec, 321 Pa.Super. 515, 468 A.2d 1107 (1983). We will modify a decree of the Orphan’s Court only if the findings on which it rests are not supported by competent and adequate evidence, or if there has been an error of law, an abuse of discretion, or if they are predicated upon a capricious disbelief of competent and credible evidence. Estate of Kovalchick, 345 Pa.Super. 229, 232-33, 498 A.2d 374, 376 (1985); Estate of Gilbert, 342 Pa.Super. 82, 87, 492 A.2d 401, 404 (1985); Lychos, supra; Dembiec, supra. We are not limited in our review of the legal conclusions that the Orphan’s Court derived from those facts. Dembiec, supra. After carefully examining Hospital’s argument, the record, and the relevant case law, we find Hospital’s argument and analysis facially persuasive, yet ultimately incorrect. The trial court committed no error.

Hospital contends that under the common law rule against perpetuities (the “Rule”), the income interests to Testatrix’s great-grandchildren were invalid. The Rule is generally stated as follows: “No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.” Gray, The Rule Against Perpetuities § 201, at p. 191 (4th ed.1942).

This court recently discussed the evolution of the Rule in the area of class gifts and the trend in Pennsylvania to ameliorate the harsh results of a literal application of the common law Rule. In Re Estate of Weaver, 392 Pa.Super. 312, 320-21, 572 A.2d 1249, 1253-54 (1990). The early common law Rule began with the founding of Pennsylvania and lasted until 1929. During this period, this Commonwealth followed the early common law Rule. Id. This early application of the Rule required use of the “possibilities test” to determine the validity of all future interests. Id. Under the “possibilities test,” a future interest, such as a remainder in a trust to all great-grandchildren, was void if there was even the slightest possibility that the interest might vest beyond the permissible period of a life or lives in being plus twenty-one years. Id. (citing Levin, Section 6101(d) of the Pennsylvania Rule Against Perpetuities: The Validity and Effect to the Retroactive Application of Property and Probate Law Reform, 25 VilLL.Rev. 213 (1980)).

From 1929 to 1947, however, a transition occurred, and a new doctrine called “vertical separability” was introduced. Weaver, supra. The vertical separability doctrine eliminated the harsh effect of the “possibilities test” in certain circumstances. Id. Vertical separability provided that valid remainders could be separated from those that were void so that the valid remainders could still be given effect. Id. Vertical separability can be applied as long as the testator’s plan of distribution is not defeated. In Re Harrah’s Estate, 364 Pa. 451, 462, 72 A.2d 587, 592 (1950).

The final stage, or modern era, of the Rule began in 1947, with the passage of the Intestate, Wills and Estates Act of 1947 (“Estates Act of 1947”). The Estates Act of 1947 replaced the common law Rule’s “possibilities test” with the “actualities test.” 20 Pa.C.S.A. § 6104; Weaver, supra 392 Pa.Super. 312, 572 A.2d 1249. Under the “actualities test” approach, Pennsylvania courts ascertained the validity of future interests by looking to the events which actually had occurred during the period of the common law Rule (a life or lives in being plus twenty-one years), and not by events which could possibly occur during this period. 20 Pa.C.S.A. § 6104; Weaver, supra. The Pennsylvania Supreme Court subsequently interpreted the “actualities test” under the Estates Act of 1947 to be applicable to only those testamentary trusts which were created after January 1, 1948. See Estate of Davis, 449 Pa. 505, 297 A.2d 451 (1972); In Re Lovering’s Estate, 373 Pa. 360, 96 A.2d 104 (1953); In Re Newlin’s Estate, 367 Pa. 527, 80 A.2d 819 (1951). In 1978, however, the legislature amended the statutory rule, by providing for the retroactive application of the statute to “all interests heretofore and hereafter created.” 20 Pa.C.S.A. § 6104(d).

Hospital presently contends that the remainder interest to Testatrix’s great-grandchildren is invalid under the Rule as it was in effect at the time of Testatrix’s death, that is, under the “possibilities test,” which considered possible events rather than actual events to determine the validity of the future interests. Although the “possibilities test” approach was in effect at the time of Testatrix’s death in 1927, the doctrine of vertical separability can be applied to the remainder interests of the Testatrix’s great-grandchildren. In the case of In Re Harrah’s Estate, supra 364 Pa. 451, 72 A.2d 587, our Supreme Court applied vertical separability in 1950 to a will executed in 1890, even though the will was created during the time when the “possibilities test” was in effect.

In Harrah’s Estate, vertical separability was applied to a will which closely resembles Testatrix’s will. In that case, the testamentary trust provided for successive life estates in the trust income to be paid to testator’s son and grandchildren, with the remainder to be distributed to the testator’s great-grandchildren. As in this case, the great-grandchildren’s remainder was challenged as a violation of the “possibilities test” under the Rule. The challenge was that it would have been possible for the testator’s son to have had more children after the testator’s death, and that these after-born children could have subsequently had children born more than twenty-one years after the death of the grandchildren who were lives in being at testator’s death. The court applied the doctrine of vertical separability and held that the remainder to the heirs of the grandchildren, who were alive at the testator’s death, could be separated from the remainder to the heirs of a hypothetically after-born child of the testator’s son. In Re Harrah’s Estate, 364 Pa. at 457-63, 72 A.2d at 590-92. In deciding to apply vertical separability, the court also relied on the fact that it was not defeating the “organic plan of the testator.” Id. at 463, 72 A.2d at 592. Not altering the overall distributive plan of the testator has become a solid requirement before the doctrine of vertical separability can be applied. Weaver, supra; In Re Estate of Morton, 454 Pa. 385, 312 A.2d 26 (1973).

In a recent decision involving a will with a testamentary disposition similar to this case, this court applied vertical separability to separate valid remainders from possibly invalid ones. Weaver, supra 392 Pa.Super. 312, 572 A.2d 1249. In Weaver, the testator provided that trust income was paid to the testator’s widow and his children, then to his grandchildren, with the principal to be distributed to each of the testator’s great-grandchildren upon the death of their beneficiary parent. Weaver, 392 Pa.Super. at 315, 572 A.2d at 1250. As argued in the present case, the objectors in Weaver argued that it could have been possible for the testator’s daughter to have had another child after the testator’s death, and that this child could have subsequently had children born more than twenty-one years after the death of the grandchildren who were lives in being at testator’s death. The court found that the remainder to the testator’s great-grandchildren was valid even though the “possibilities test” was in effect at the time of the testator’s death. Id. at 322-25, 572 A.2d at 1254-56. We reached this result because the remainder could be separated from the hypothetically void remainder and doing so would not have altered the testator’s overall testamentary plan. Id. at 322-25, 330, 572 A.2d at 1254-56, 1258.

The analyses in Harrah’s Estate and Weaver are directly applicable to this case. Similarly, the doctrine of vertical separability is directly applicable to this case. Hospital argues, however, that the doctrine of vertical separability sets up a two-part test, which is not satisfied in this case, thereby precluding application of the doctrine. Hospital claims that for vertical separability to apply, there must first be valid interests under the common law “possibilities test” of the Rule, which are able to be separated from the void interests under the Rule. Only if there are these valid interests, Hospital contends, can we then look to the second step of the doctrine which requires no disruption of the testator’s overall distribution scheme. Hospital claims that the trial court failed to properly apply the first part of this test. The trial court found the remainder interests of Testatrix’s great-grandchildren to be valid interests, and did so by comparing these interests to those which were questioned in Harrah’s Estate. Hospital strongly argues, however, that this case is not controlled by Harrah’s Estate and vertical separability because the remainder interests in the two cases are “critically different.”

In Harrah’s Estate, the testator’s residuary trust provided that the trust pay income to the testator’s son George, for life, then pay one-third of the income to George’s widow for life and two-thirds of the income to George’s children during the life of each child. The trust further provided that, upon the death of any such child (testator’s grandchild), to distribute his or her share of said principal according to the intestate laws of Pennsylvania. George had four children, all of whom were alive at testator’s death, and no children were born to George after testator’s death. When George’s son Julius died, the issue of the Rule arose. Hospital claims that it is this emphasized language, “upon the death of any such child,” which (a) distinguishes Harrah’s Estate from this case, (b) illustrates that the remainder interests to Testatrix’s great-grandchildren- are not valid, which leads to (c) non-compliance with step one of vertical separability which precludes that doctrine’s application in this case.

Specifically, Hospital contends that the above phrase from the will in Harrah’s Estate enabled the remainder interests in that case to vest necessarily within the time period under the Rule. Hospital argues that this was because “[i]n all events, even the possibility George would have another child born after the death of testator, the interests of Julius’ intestate heirs would vest upon Julius’ death and Julius was a life in being. The possibility George could have a child born after the testator’s death could not affect the vesting of the remainder interest to Julius’ intestate heirs.” Hospital focuses on the vesting of the remainder interests to the grandchild’s intestate heirs with the death of each grandchild. Although this manner of vesting was, in fact, true under the facts in Harrah’s Estate, Hospital’s argument infers that this is now a requirement for the application of vertical separability — “This critical fact, that the interests under all possibilities necessarily must vest within the permissible period [under the Rule], is what makes the interests valid, and therefore, separable.” Hospital then goes on to make this the key factor which distinguishes Harrah’s Estate from this case. Hospital argues that, unlike Harrah’s Estate, the remainder interests in this case to Testatrix’s great-grandchildren do not necessarily vest, under the “possibilities test” of the Rule, within the permissible time period. Hospital bases its argument on the language used in Testatrix’s will that income was to be paid to Testatrix’s grandchildren until the death of the survivor of all of her grandchildren, and only then, “upon the death of my last grandchild,” was income to be paid to Testatrix’s great-grandchildren. Hospital argues that only after the death of all of the grandchildren would the great-grandchildren’s remainder interests have vested. It is this difference, Hospital contends, which made the remainder interests in Harrah’s Estate valid and the remainder interests here invalid. Hospital cites no authority for its interpretation that vertical separability, as applied by the court in Harrah’s Estate, requires that the remainder interests must necessarily vest under all possibilities within the permissible time period under the Rule in order for those remainder interests to be valid. Indeed, this interpretation of Harrah’s Estate by Hospital is incorrect.

Although there is a difference between the way the remainder interests in this case vest and the way they vested in Harrah’s Estate, this difference is without consequence. This is because the remainder interests to Testatrix’s great-grandchildren became “fixed ” upon the death of each grandchild, and were therefore valid, even though those interests did not vest upon the death of each grandchild. Since the remainder interests to Testatrix’s great-grandchildren are valid, they can be separated from possibly void interests under vertical separability, even though these interests may not vest in exactly the same way as those in Harrah’s Estate. This is possible because the doctrine of vertical separability provides:

When, on a gift to a class, the number of shares is definitely fixed within the time required by the rule against perpetuities [,] the question of remoteness is to be considered with reference to each share separately.

Gray, Rule Against Perpetuities, supra at 345 (emphasis added), cited with approval in Harrah’s Estate, 364 Pa. at 458, 72 A.2d at 590; Weaver, 392 Pa.Super. at 324, 572 A.2d at 1255. In this case, just as in Harrah’s Estate and Weaver, the great-grandchildren’s shares were definitely fixed within the time required by the Rule. Testatrix’s will provided:

“Upon the death of my last surviving grandchild, I direct the income from the residue of my estate shall be paid to the children of my daughter’s children [Testatrix’s great-grandchildren] then living per stirpes and not per capita, the said children of my daughter’s children to take such share as their parents would have enjoyed if living.... ”

(emphasis added). Testatrix’s great-grandchildren were to take their shares per stirpes. Thus, even though Testatrix’s great-grandchildren were not to receive any income until all grandchildren were deceased, their separate shares became fixed upon the death of each grandchild. This point was explained by the court in Harrah’s Estate as it pointed out that, “where it cannot be ascertained what is the share of each member of the class, the gift is void to all, but when the children of each child form, a separate class [i.e. per stirpes], the share of each class is separately ascertainable. The gifts to. those in the separate class is [sic] valid.” Harrah’s Estate, 364 Pa. at 460, 72 A.2d at 591 (emphasis added) (quoting Albert v. Albert, 68 Md. 352, 12 A. 11 (1888)). In Weaver, this court also emphasized the importance of this fact that the interests of the great-grandchildren were fixed as it decided to apply the doctrine of vertical separability. We held in Weaver that “[u]nder the doctrine [of vertical separability], because [testator’s grandchild] was a life in being at the time of the will’s execution, the remainder to his issue [testator’s great-grandchildren] was valid, and any possibly void remainder interest to after-born children of his mother, which, as in Harrah’s Estate, did not actually occur, was separable.” Weaver, 392 Pa.Super. at 325, 572 A.2d at 1256 (emphasis added).

This analysis is directly applicable to this case. Here, because Testatrix’s grandchildren were lives in being at the time of the will’s execution, the remainder to their issue, Testatrix’s great-grandchildren, was fixed and, therefore, valid. Gray, Rule Against Perpetuities, supra 201 at p. 191 (4th ed. 1942); Harrah’s Estate, supra 364 Pa. 451, 72 A.2d 587; Weaver, supra 392 Pa.Super. 312, 572 A.2d 1249. Consequently, any possibly void remainder interest to after-born children of their (the grandchildren’s) mother, was separable under the doctrine of vertical separability.

The result of this extensive analysis is that the remainder to Testatrix’s great-grandchildren was valid, and is separable from any hypothetically void remainder under the vertical separability doctrine as long as this would not disturb the overall testamentary plan. In the matter before us, it is clear that it was the intent of Testatrix to provide her great-grandchildren with the income from this trust for as long as a period of time as she legally could. All of Testatrix’s great-grandchildren will share in her income if their interests are upheld. None will be excluded. Her testamentary plan of distribution will not be disturbed or altered. Consequently, we find that the doctrine of vertical separability is applicable to preserve the remainder interests of Testatrix’s great-grandchildren. Weaver, supra; Harrah’s Estate, supra. But cf. In Re Morton’s Estate, 454 Pa. 385, 312 Pa. 26 (1973) (declining to apply vertical separability to separate valid remainders from invalid remainders since to do so would exclude eight of eleven remaindermen, thus doing violence to the testator’s testamentary scheme).

In its argument that the remainder interests to Testatrix’s great-grandchildren were void, thereby precluding application of the vertical separability doctrine, Hospital claims that the trial court, in order to find valid interests and reach its conclusion that vertical separability could be used, effectively had to apply the “actualities test” of 20 Pa.C.S.A. § 6104. This claim is without merit since, as discussed above, the great-grandchildren’s interests were valid. Vertical separability applied to preserve these interests, and application of the “actualities test” was not necessary. The vertical separability doctrine does not involve application of the “actualities test.” They are two separate approaches to ameliorating the harsh effects of the Rule. This is evidenced by the fact that vertical separability was adopted in Kern’s Estate in 1929, which was almost two full decades before the “actualities test” was statutorily adopted in 1947 with the passage of the Intestate, Wills and Estates Act. Kern’s Estate, 296 Pa. 348, 145 A. 824 (1929). Indeed, the court in Weaver found that not only was the testator’s intended distribution to his great-grandchildren permissible under the vertical separability doctrine, as described above, but it was also valid under today’s statutorily amended Rule using the retroactive application of the “actualities test.” Weaver, 392 Pa.Super. at 330, 572 A.2d at 1258.

Finally, Hospital claims that, since the trial court “had to apply” the “actualities test” in order to find that the greatgrandchildrens’ interests were valid and thereby applied vertical separability, it has been deprived of a vested property interest without due process of law. More specifically, Hospital argues that if the income of the trust is permitted to be paid to Testatrix’s great-grandchildren by the retroactive application of the “actualities test” under 20 Pa.C.S.A. § 6104(d), then it is deprived of a property interest without due process in violation of the Fourteenth Amendment to the United States Constitution and of Article I, Sections 1 and 9, of the Pennsylvania Constitution. As explained, the arguments which Hospital uses to reach this issue are without merit. Therefore, we do not reach Hospital’s constitutional challenge to the retroactive application of the “actualities test” under Section 6104(d). However, we direct Hospital’s attention to In Re Frank, 480 Pa. 116, 389 A.2d 536 (1978), where our Supreme Court affirmed the trial court’s application in that case of the amended statute making the “actualities test” retroactively applicable “to all interests heretofore or hereafter created.” 20 Pa.C.S.A. § 6104(d). In addition, this court in Weaver recently did the same as it also affirmed the trial court’s retroactive application of the “actualities test” to a remainder created in a 1934 will.

Decrees affirmed.

      . To facilitate an understanding of the distribution scheme involved in this case, a family tree has been attached to the end of this opinion, which indicates the relationships, dates of birth, and dates of death of all relevant parties.

      . The Pennsylvania Academy of Fine Arts and Testatrix’s great-grandchildren reached a settlement as to that one-half share, and such share is, therefore, not at issue in this case.

      . The relevant paragraph of Testatrix’s will reads as follows:
      All the rest, residue and remainder of my estate ... I give ... In Trust ... to pay the net income therefrom to my daughter Alice N. Trask ... and upon the death of my daughter Alice N. Trask, I direct my said Trustee to pay over the aforesaid net income in equal shares to the children of my said daughter the survivors and survivor of them for and during the natural life of my said grand-children and the survivor of them. Upon the death of my last surviving grandchild, I direct the income from the residue of my estate shall be paid to the children of my daughter’s children then living per stirpes and not per capita, the said children of my daughter’s children to take such share as their parents would have enjoyed if living, the trust for the payment of such income to the children of my daughter’s children to continue so long as permitted by the laws of the Commonwealth of Pennsylvania or until the death of such children of my daughter’s children after the death of their parents. Upon the termination of the trust ..., then I direct my said Trustee to divide the principal of the residue of my estate into two equal shares, and to pay and transfer one of said two equal shares to the Pennsylvania Academy of Fine Arts, and the remaining one of the two equal shares to the Pennsylvania Hospital....

      . A "life in being,” as used in the common law and statutory rules against perpetuities, means "the remaining duration of the life of a person who is in existence at the time when the deed or will takes effect.” Black’s Law Dictionary 833 (5th ed. 1979).

      . "Per stirpes” describes the method of dividing an estate "where a class or group of distributees take the share which their deceased would have been entitled to, taking thus by their right of representing such ancestor, and not as so many individuals.” Black’s Law Dictionary 1030 (5th ed. 1979). “Per capita,” on the other hand, describes that method of dividing an estate "by which an equal share is given to each of a number of persons, all of whom stand in equal degree to the decedent, without reference to their stocks or their right of representation.” Id. at 1022.

      . For example, when Alice Trask Adamson Mosely died, in 1972, her daughter’s interest became fixed, although it did not become vested until the last grandchild (Francis D. Trask) died.

      . The Weaver will, which is similar to Testatrix’s will, provided: "Upon the death of my daughter, ... I direct my trustees to pay ... her share of income to her children [testator’s grandchildren] then living and the issue of such of her children [testator’s great-grandchildren], if any, as may have died, in equal shares, per stirpes and not per capita, for and during the life of each of such beneficiaries----” Weaver, supra.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    652 A.2d 338
    COMMONWEALTH of Pennsylvania v. Michael E. TRIAL, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1994.
    Filed Dec. 22, 1994.

      Samuel K. Gates, Hanover, for appellant.
    John W. Thompson, Jr., Asst. Dist. Atty., York, for Com., appellee.
    Before ROWLEY, P.J., and CIRILLO and DEL SOLE, JJ.
   DEL SOLE, Judge:

Appellant takes this appeal from the mandatory sentence imposed after he was convicted in a non-jury trial of Driving Under the Influence. At question is whether the Commonwealth was able to establish the first requirement of the statute that Appellant was a person who was driving, operating “or in actual physical control of the movement of any vehicle.” 75 Pa.C.S.A. § 3731(a). After determining that the facts support the court’s finding of guilt and that no legal error was committed, we affirm the Judgment of Sentence.

At trial the Commonwealth established that a police officer arrived at the scene at 3:31 a.m. in response to a radio communication that a vehicle was blocking the intersection of Perry Avenue. The officer testified that Appellant’s vehicle was in a diagonal position across Perry Avenue, which is a two lane residential road, and that it was positioned in such a manner that it was blocking the normal course of traffic on that roadway. The officer observed that the parking lights were on and an individual was slumped over the wheel with his seat belt engaged. The keys were in the ignition of the automobile and were in an “on” position, however the motor was not running. After several attempts at arousing Appellant, the officer propped him against the car, and sought to determine if he could perform any field sobriety tests. When these could not be completed Appellant was placed under arrest for drunk driving and was advised of his rights. Blood tests were performed at a local hospital at 3:55 a.m., which indicated that the ethanol alcohol content of Appellant’s blood was .340. Appellant made statements to the police revealing that he had left the Racehorse Tavern at 2:30 a.m. and was traveling to his home on Perry Avenue. He indicated that he had been drinking from 4:00 p.m. until 2:00 a.m. and that he had consumed approximately two six packs of beer.

Appellant argues that under the authority of Commonwealth v. Price, 416 Pa.Super. 23, 610 A.2d 488 (1992), the facts did not demonstrate that Appellant was in physical control of the vehicle. He reasons that absent such proof the Commonwealth was unable to establish the corpus delicti of the crime, thus the introduction of Appellant’s statements to the police should have been prohibited. Appellant farther submits that absent his statements the Commonwealth had no evidence of the amount of time Appellant spent in the car and therefore could not relate back Appellant’s blood alcohol content to a time when he actually operated the vehicle.

Each of Appellant’s claims must fail because they are wrongly based on the premise that Commcmwealth v. Price, Id. is applicable to this situation. In Price a trooper received a report of a car being driven recklessly at a certain location. When the trooper arrived in that area he found a vehicle with a flattened tire and broken wheel rim, which rendered the car immobile. The car was not running and the lights were not on and the keys were not in the ignition. The appellant was observed sitting in the driver’s seat and then he was seen leaving the vehicle and opening the trunk. When the trooper observed the appellant’s gait, the trooper went over and spoke to him and came to the conclusion that the appellant was intoxicated. The appellant admitted that the trooper “got me for drunk driving,” but at trial he defended himself by testifying that his girlfriend had been driving before the car broke down, and that she had gone down the road to a friend’s for assistance leaving the appellant with the car. Based upon these facts the court held that “[mjerely possessing keys while seated in a parked car is not adequate to warrant a finding of actual physical control.” Id. at 27, 610 A.2d at 490. The court went on “[tjhere must be some indicia that the intoxicated person, who was seated in the car, had actual physical control of the vehicle.” Id.

The instant case differs significantly. Appellant was not merely seated in a parked car with keys in hand. Instead Appellant was seated in the drivers side of his car which was stopped, with its lights on, across a roadway. Appellant’s seat belt was in place, and the keys were in the ignition in the “on” position. The officer who testified at trial stated that this was the position the keys would remain in the instance where the car is running or where it stalls. N.T. 11/26/94 at 22. In Price, the automobile was inoperable, the lights were off, and the keys were not in the ignition. Thus, while the Price court found that.the facts of that case did not indicate that the person seated in the parked car had physical control of the vehicle, the differing circumstances of this case warrant a different result. The circumstances of this case clearly support the conclusion that Appellant was in actual physical control of his vehicle.

The Price court in reaching its conclusion, made a statement that “[a ]t a very minimum, a parked car should be started and running before a finding of actual physical control can be made.” Price at 27, 610 A.2d at 490. Appellant clings to this statement in hopes of relief, arguing that his parked car was not running, therefore he cannot be found to have control of the vehicle. The problem with this analysis is that Price court was speaking to “parked” cars. ■ Appellant’s car was not parked. It was stopped in the middle of a roadway, obstructing traffic. Although the motor was not running, the keys were in the ignition in such a manner that it is possible that the car stalled. Therefore we do not find the statement found in Price taken in the context of that case, with its reference to “parked” cars, applicable to the case at hand.

When examining all the facts of the present case it is clear that the Commonwealth established Appellant’s physical control of his vehicle. It is equally clear that the proof necessary to establish the corpus delicti of the crime was present and the introduction of Appellant’s statements to the police were properly admitted into evidence. See Commonwealth v. Kasunic, 423 Pa.Super. 112, 620 A.2d 525 (1993); Commonwealth v. DeLeon, 276 Pa.Super. 36, 419 A.2d 82 (1980).

Finally we readily dismiss Appellant’s remaining claim that the Commonwealth failed to meet its burden of proof when it did not offer expert testimony to extrapolate his blood alcohol level to the time he drove the vehicle. First, we note that the record does not reveal that Appellant was convicted of 75 Pa.C.S.A. § 3731(a)(4), driving with a blood alcohol content of .10% or greater. Although Appellant was charged under both § 3731(a)(1), under the influence of alcohol to a degree which renders the person incapable of safe driving, and § 3731(a)(4), the court made a blanket ruling that Appellant was “guilty of driving under the influence of alcohol.” No finding was made of Appellant’s guilt with respect to the charge relating to his blood alcohol content, therefore, consideration of this claim concerning relation back testimony is not necessary.

More importantly however, the Supreme Court of Pennsylvania has just recently ruled that it is not the Commonwealth’s burden to offer expert testimony to relate back the driver’s blood alcohol content to a time when the vehicle was being driven. The Court in Commonwealth v. Yarger, 538 Pa. 329, 648 A.2d 529 (1994) stated:

Upon consideration of this issue, we find no reason to require the Commonwealth to present an expert witness in these matters. We hold that once the Commonwealth has established that the driver’s blood alcohol content reflects an amount above 0.10%, the Commonwealth has made a prima facie case under 75 Pa.C.S. § 3731(a)(4). At this point, the defendant is permitted to introduce expert testimony to rebut the Commonwealth’s prima facie evidence. If the defendant decides to rebut the prima facie evidence against him with expert testimony, then the Commonwealth may present its own expert to refute this testimony.

(538 Pa. at 329--, 648 A.2d 529.)

Based upon the holding in Yarger, Appellant’s final claim must fail.

Judgment of Sentence affirmed.

ROWLEY, President Judge, concurs in the result.


text:
    652 A.2d 341
    COMMONWEALTH of Pennsylvania v. Cindy Lee APPEL, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1994.
    Filed Dec. 22, 1994.

      Cindy L. Appel, appellant, pro se.
    Alison Taylor, Asst. Dist. Atty., Carlisle, for Com., appellee.
    Before ROWLEY, P.J., and CIRILLO and DEL SOLE, JJ.
   DEL SOLE, Judge:

Following a trial de novo, Appellant, Cindy Lee Appel, was found guilty of driving eighty-five miles an hour in a fifty-five mile an hour zone and was convicted of violating 75 Pa.C.S.A. § 3362(a)(2), “Maximum Speed Limits”. Appellant was ordered to pay a fine of $174.00 and subsequently filed this pro se appeal.

For the reasons that follow, we hold that each of Appellant’s claims are without merit and therefore, we affirm the trial court’s Order entering Appellant’s judgment of sentence.

In her first three issues, Appellant asserts that she was wrongfully denied a jury trial, that she was entitled to an investigating grand jury and that the United States Supreme Court had original jurisdiction over this matter.

Without setting forth any support for her position, Appellant argues that because the Commonwealth of Pennsylvania was a party to this action, original jurisdiction to decide this matter rests with the United States Supreme Court. Finding no basis for this argument, we hold that it is wholly without merit.

Secondly, Appellant claims that she was entitled to a jury trial. “The [United States] Constitution requires that one accused of a “serious offense” be given a jury trial.” Commonwealth v. Mayberry, 459 Pa. 91, 97, 327 A.2d 86, 89 (1974) citing Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) [additional citations omitted]. In determining whether an offense is “serious” or “petty” the court looks to the crime and the sentence that could potentially be imposed. “[T]hose crimes carrying more than six months sentence are serious and those carrying less are petty crimes”. Mayberry, 459 Pa. 91, 98, 327 A.2d 86, 89 (1974) citing Codispoti v. Pennsylvania, 418 U.S. 506, 512, 94 S.Ct. 2687, 2691, 41 L.Ed.2d 912 (1974). “If the sentence actually imposed is greater than six months, then the accused must be afforded an opportunity to be tried by jury.” Mayberry, 459 Pa. 91, 99, 327 A.2d 86, 90 (1974).

Appellant committed a summary offense and was ordered to pay a fine. 75 Pa.C.S.A. § 3362(c). Because Appellant’s offense did not carry a penalty of imprisonment, she clearly was not entitled to a jury trial.

Likewise, Appellant’s claim that she was wrongfully denied the services of an investigating grand jury also fails. The Investigating Grand Jury Act provides that either a president judge of a court of common pleas may order that an investigating grand jury be summoned or that counsel for the Commonwealth can petition the president judge of a particular court of common pleas for an order directing that the grand jury be summoned. 42 Pa.C.S.A. 4543(b) and (c). There is no support for Appellant’s bald assertion that she was entitled to request and receive the services of a grand jury.

Appellant also argues that she was denied her right to be represented by counsel. This is a misstatement. In fact, the trial court inquired as to whether Appellant wanted to be represented by counsel. She responded that she wished to be represented by an individual who had accompanied her to court but was not a licensed attorney. The court properly rejected the request.

Another assertion raised by Appellant is that the Commonwealth failed to prove the elements of the crime for which she was charged. In particular, Appellant alleges that the Commonwealth had the burden of proving “act” and “intent”. This argument fails because intent is not an element of the crime for which she was charged and the Commonwealth clearly established beyond a reasonable doubt that she was driving at an excessive speed.

Appellant’s remaining claims are arguably her most ridiculous. As the Commonwealth properly notes, Appellant erroneously (and curiously) cites to a repealed state tax provision 72 P.S. § 3301, repealed November 24, 1992, P.L. 717, No. 108, § 3, for the proposition that the Commonwealth can only accept payment for fines in gold or silver coins. Appellant does not formulate any argument regarding this claim and, therefore, we will not elaborate on it any further.

Lastly, Appellant argues that the gold fringe adorning the American flag displayed in the district justice’s courtroom conferred Admiralty/Maritime jurisdiction. In addition to the fact that this is a preposterous claim, Appellant was afforded a trial do novo and, therefore, matters pertaining to the proceedings before the district magistrate are irrelevant.

By filing the present appeal seeking review of frivolous issues, Appellant has caused this court to waste precious judicial resources. Appellant’s total disregard for the court system as a whole began in the trial court and has carried over to this court. We admonish Appellant for necessitating review of these claims and direct her attention to the many sincere appellants who seek review before this court. Accordingly, pursuant to Pa.R.A.P. Rule 2744, 42 Pa.C.S.A., we award the Commonwealth reasonable attorneys fees and costs and remand this matter to the trial court for a determination of attorneys fees and costs.

' Order entering judgment of sentence affirmed. Case remanded to the trial court for proceedings consistent with this memorandum. Jurisdiction relinquished.

      . Rule 2744. Further Costs. Counsel Fees. Damages for Delay
      In addition to other costs allowable by general rule or Act of Assembly, an appellate court may award as further costs damages as may be just, including
      (1) a reasonable counsel fee and
      (2) damages for delay at the rate of 6% per annum in addition to legal interest,
      if it determines that an appeal is frivolous or taken solely for delay or that the conduct of the participant against whom costs are to be imposed is dilatory, obdurate or vexatious. The appellate court may remand the case to the trial court to determine the amount of damages authorized by this rule.


author: BECK, Judge: JOHNSON, Judge,

text:
    652 A.2d 343
    UNDERHILL COAL MINING COMPANY, Appellant, v. George Alfred HIXON, Ronald Rishel and Rodney VanVoorhis. (Three Cases) Appeal of Ronald RISHEL and Rodney VanVoorhis.
    Superior Court of Pennsylvania.
    Argued Jan. 6, 1994.
    Filed Dec. 22, 1994.

      Carl A. Belin, Jr., Clearfield, for Underhill.
    Toni M. Cherry, Dubois, for VanVoorhis.
    Vernon D. Roof, Ridgway, for Rishel.
    Before BECK, JOHNSON and MONTGOMERY, JJ.
   BECK, Judge:

This appeal raises the issue of whether in a trespass and conversion action a good faith defense is available to bona fide purchasers for value who purchased cut timber from a third party who had converted the timber.

The trial court answered this question in the affirmative, and granted summary judgment to the bona fide purchasers for value. We reverse.

The bona fide purchasers for value are Ronald Rishel and Rodney VanVoorhis. Underhill Coal Mining Company (“Underhill”), the owner of the timbered property, brought an action in trespass and conversion against the purchasers as well as the alleged converter, George Hixon. Underhill alleged that Hixon unlawfully and without permission entered on its property and cut and removed a substantial quantity of timber. Underhill further alleged that Hixon sold at least some of this timber to defendants Rishel and VanVoorhis. Underhill sought recovery of damages for the loss of the value of the unlawfully removed timber and for certain other expenses incurred in connection therewith.

After a period of discovery, Rishel and VanVoorhis filed motions for summary judgment alleging that the pleadings, affidavits and depositions of record established that there was no genuine dispute as to whether Rishel and VanVoorhis acted in good faith and without knowledge that the timber they were purchasing had been unlawfully obtained by Hixon. This, they alleged, provided them with a complete defense as a matter of law. VanVoorhis also asserted that the fact that Underhill had a right to secure an immediate judgment against Hixon, who had admitted to the conversion, barred Underhill from proceeding against Rishel and VanVoorhis.

The trial court entered summary judgment for Rishel and VanVoorhis. In its opinions in support of this ruling, the trial court recognized that under the common law doctrine of conversion a good faith purchaser of converted goods is guilty of conversion himself. However, the court concluded that this principle is in conflict with section 2403 of the Uniform Commercial Code, which states in pertinent part:

(a) Transfer of title. — A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value
(b) Transfer by merchant entrusted with possession of goods. — Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in the ordinary course of business.
(c) Definition of “entrusting”. — “Entrusting” includes any delivery and any acquiescence in retention of possession regardless of any condition expressed between the parties to the delivery or acquiescence and regardless of whether the procurement of the entrusting or the disposition of the goods by the possessor has been such as to be larcenous under the criminal law.

The trial court found that a liberal construction of these subsections of the U.C.C. mandated entry of summary judgment for Rishel and VanVoorhis. First, the court concluded that Hixon had voidable title to the timber and could, therefore, deliver good title to Rishel and VanVoorhis. Second, the court found Hixon was a merchant to whom Underhill had entrusted the timber and that the entrustment enabled Hixon to deliver good title to Rishel and VanVoorhis as buyers in the ordinary course of business. Lastly, the trial court relied on Linwood Harvestore, Inc. v. Cannon, 427 Pa. 434, 235 A.2d 377 (1967), to hold that since Underhill had exercised its option to seek a judgment against Hixon, the original convertor, it was precluded as a matter of law from also seeking a judgment against Rishel and VanVoorhis.

Underhill filed a timely appeal from the orders granting summary judgment for Rishel and VanVoorhis. Rishel and VanVoorhis filed cross-appeals challenging a later ruling by the trial court permitting Underhill to supplement the record by filing a portion of the transcript of a second deposition of Hixon.

We have concluded that the entry of summary judgment in this case was error as a matter of law and that none of the trial court’s reasons for granting summary judgment is valid. Because we have so concluded, and therefore must remand the case for further proceedings, we need not resolve the issue raised by appellees’ cross-appeal, namely, whether the trial court also erred in allowing Underhill to supplement the record after summary judgment had been granted. This issue has been rendered moot as a result of our decision that the entry of summary judgment in this case was error regardless of whether the record is deemed to include or exclude Under-hill’s supplement to the record.

Our standard of review in an appeal from an order granting summary judgment is clear.

Our standard of review mirrors that of the trial court. Summary judgment “shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa. R.C.P. 1035(b). In ruling upon a motion for summary judgment, a court must examine the record in the light most favorable to the non-moving party and any doubts are to be resolved against the moving party. Kryeski v. Schott Glass Technologies, 426 Pa.Super. 105, 626 A.2d 595 (1993).

Oatess v. Norris, 431 Pa.Super. 599, 637 A.2d 627, 629 (1994).

The classic definition of conversion under Pennsylvania law is “the deprivation of another’s right of property in, or use or possession of, a chattel, or other interference therewith, without the owner’s consent and without lawful justification.” Stevenson v. Economy Bank of Ambridge, 413 Pa. 442, 451, 197 A.2d 721, 726 (1964); Bank of Landisburg v. Burruss, 362 Pa.Super. 317, 524 A.2d 896 (1987), allo. denied, 516 Pa. 625, 532 A.2d 436 (1987). Although the exercise of control over the chattel must be intentional, the tort of conversion does not rest on proof of specific intent to commit a wrong. Norriton East Realty Corp. v. Central-Penn National Bank, 435 Pa. 57, 254 A.2d 637 (1969). Equally fundamental is the corollary principle that a good faith purchaser of the goods from the converter is also a converter and must answer in damages to the true owner. First Camden National Bank & Trust Co. v. J.R. Watkins Co., 122 F.2d 826 (3d Cir.1941) (citing Carey v. Bright, 58 Pa. 70 (1868)). As the Supreme Court of Pennsylvania has stated the proposition, “[t]he general rule for chattels is that a bona fide purchaser from a thief gets nothing.” Linwood Harvestore, Inc. v. Cannon, 427 Pa. 434, 235 A.2d 377 (1967).

Thus, if this case were to be decided solely on the basis of the common law of conversion, without regard to any modifications wrought by the U.C.C., Rishel and VanVoorhis would not be entitled to judgment simply because they are good faith purchasers for value. As the U.C.C. expressly states:

Unless displaced by the particular provisions of this title, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause shall supplement its provisions.

13 Pa.Cons.Stat.Ann. § 1103 (1984).

Therefore, the issue is whether Article Two of the U.C.C. provides Rishel and VanVoorhis with a defense they would not otherwise have under our common law.

The trial court found that this defense arose from Section 2403(a) insofar as it states that a bona fide purchaser for value who purchases from a person with voidable title takes good title. “Voidable title” is not a defined phrase. The trial court concluded that Hixon, the original converter, had voidable title to the cut timber, and therefore could convey good title to YanVoorhis and Rishel. The law in Pennsylvania is contrary to the trial court’s interpretation. Pennsylvania law provides that a converter has no title at all, i.e., his title is void, and therefore he can convey nothing to a bona fide purchaser for value. Moreover, since the U.C.C. contains no suggestion that it was intended to alter this legal principle, it is the common law principle that must govern this case.

We find the decision in Petition of Hennessy, 343 Pa.Super. 293, 494 A.2d 853 (1985), instructive on this issue. In Hennessy, a panel of this court construed U.C.C. Section 2403(a) and concluded:

In order to have voidable title, one must obtain goods through the assent of the original owner, but not necessarily acquired good title.

Id. at 298, 494 A.2d at 856. If there has been no such assent, then the title acquired is entirely void and a good faith purchaser takes nothing. Id. Thus, the good faith of the purchaser is in no way a defense to an action for conversion by the true owner if the owner never assented to the obtaining of the goods by the person from whom the good faith purchaser bought them.

Our conclusion is consistent with decisions in other jurisdictions where the interplay between Section 2403(a) and the common law of conversion has been at issue. For example, in Bay Springs Forest Products, Inc. v. Wade, 435 So.2d 690 (Miss.1983), a strikingly factually analogous case, the Supreme Court of Mississippi was asked to decide whether the good faith of purchasers of converted timber was a defense to a conversion action against them. The court opined that since the U.C.C. gave a purchaser only that title which the seller had power to convey, and since the seller was a converter who, under the common law, had no title at all, the purchaser took nothing. Id. at 694 (citing, inter alia, Whitlock v. Hogrefe, 278 Or. 739, 740, 565 P.2d 1092, 1093-94 (1977)). Thus, the good faith of the purchaser was no defense to an action for conversion against him. Id. See also Touch of Class Leasing v. Mercedes-Benz Credit of Canada, Inc., 248 N.J.Super. 426, 591 A.2d 661 (1991) (where goods are not obtained through a transaction of purchase but rather are converted, converter has void title and therefore cannot pass good title to good faith purchaser under U.C.C. § 2403(a)); Suburban Motors, Inc. v. State Farm Mutual Automobile Insur. Co., 218 Cal.App.3d 1354, 268 Cal.Rptr. 16 (1990) (nothing in U.C.C. § 2403(a) permits the transfer of voidable title by a thief; where a thief takes property, without the assent of the owner and not in a transaction of purchase, he has no title and can convey none to a bona fide purchaser).

Rishel and VanVoorhis argue, however, that the policies underlying the U.C.C. argue in favor of a more liberal reading. They also cite to a Pennsylvania case involving negotiable instruments, First National Bank of Blairstown v. Goldberg, 340 Pa. 337, 17 A.2d 377 (1941). They argue that Goldberg stands for the proposition that under the circumstances of this case, the good faith of the purchasers should be a defense to a conversion action.

The purposes and policies underlying the Uniform Commercial Code are clearly stated therein as being:

(1) To simplify, clarify and modernize the law governing commercial transactions.
(2) To permit the continued expansion of commercial practices through custom, usage and agreement of the parties.
(3) To make uniform the law among the various jurisdictions.

13 Pa.Cons.Stat.Ann. § 1102(b).

This statement of purpose and policy does not provide a reason for varying the result in this case. Clearly, subsections (1) and (3) are inapposite. Only subsection (2), relating to the continued expansion of commercial practice through custom and usage, has any possible application. Rishel and VanVoorhis argue that it is the custom for timber buyers to purchase cut timber from merchants without inspecting documents or otherwise ascertaining whether the timber was lawfully obtained by the merchant. On the basis of this custom alone they wish us to decide that the common law of conversion should not apply to them.

We do not accept this argument. Although we agree that a purpose of the U.C.C. is to facilitate the flow of commerce through custom and usage, without legislative direction the policy cannot in itself alter the common law and therefore the interplay between the common law and U.C.C. If the drafters of Article Two of the U.C.C. intended to effect a change in Pennsylvania common law, they could have done so in more specific language. Instead, they have provided only that a person with voidable title, i.e. not a converter, can transfer good title to a good faith purchaser for value, and that a buyer in the ordinary course can take good title from a merchant to whom the goods were “entrusted.” We have concluded that neither of these provisions apply in this case. The protection sought by purchasers in the position of Rishel and VanVoorhis must come from the legislature not the courts. Although the goal of facilitating the flow of commerce through custom and usage is important, it is up to the legislature to enact law that will implement it.

Given this conclusion, we must now proceed to determine whether the trial court was correct in granting summary judgment on the alternate ground that Underhill, the owner of the timber, had “entrusted” it to Hixon, a timber merchant, thereby enabling him to pass good title to Rishel and VanVoorhis as buyers in the ordinary course under Section 2403(b). As we have indicated above, section 2403(c) defines entrusting to mean delivery or acquiescence in retention of possession. Relying on this definition, the trial court here found that the record established that Underhill had entrusted the timber, to Hixon. In the trial court’s words, “[Hixon’s] removal of the timber was uncontested for several months following the notice given to Plaintiff which is sufficient to constitute acquiescence required for the entrustment of goods.”

Summary judgment for Rishel and VanVoorhis based on an entrustment theory is not warranted. At the outset, we reiterate that in deciding a motion for summary judgment a court does not engage in the finding of facts, but rather must determine whether the record reveals that there is no genuine issue as to a material fact. Pa.R.C.P. 1035(b); Kelly by Kelly v. Idees, 427 Pa.Super. 542, 547, 629 A.2d 1002, 1004 (1993). Here, the question of fact is whether Underhill ever delivered the timber to Hixon or acted in a manner indicating acquiescence in Hixon’s retention of possession of the timber. Our thorough review of the record convinces us that there are indeed genuine issues as to these questions of fact in this case.

Hixon testified that Underhill never communicated to him that it considered itself the owner of this timber prior to the time when Hixon cut the timber. He did not testify, however, that he was ever given permission to cut the timber, nor did he state that Underhill ever did anything after the timber was cut to indicate that it acquiesced in Hixon’s retention thereof. Moreover, Underhill’s President, Mr. Palumbo, testified that everyone working in the area knew that the land on which the timber was located belonged to Underhill, that he never gave Hixon permission to cut the timber there, and that he acted quickly to stop the cutting as soon as he received information leading him to believe that Hixon was taking timber that belonged to Underhill. Based on our review, this record reveals a genuine factual issue on the question of entrustment.

Lastly, we deal with the trial court’s conclusion that the principles expressed in Linwood v. Harvestore, supra, preclude Underhill’s suit against Rishel and VanVoorhis as a matter of law. The trial court relied on Linwood for the proposition that because Underhill had exercised its option to seek a judgment against Hixon, the original convertor, Under-hill was barred from recovering a judgment against Rishel and VanVoorhis. We find that the trial court erred in its interpretation and application of the pertinent law.

In Linwood, plaintiff brought replevin actions alleging conversion of certain equipment owned by plaintiff. Plaintiff alleged that a third party had converted his equipment and that it was then purchased by the defendants in the replevin actions. Plaintiff had already recovered a judgment in assumpsit against the alleged third party converter. Defendants sought summary judgment, inter alia, on the ground that plaintiffs recovery of an assumpsit judgment against the original converter constituted a ratification of the converter’s sale of the equipment to the defendants and of their title to the equipment. Id. 427 Pa. at 435-36, 235 A.2d at 379.

Although the Linwood court agreed that there was Pennsylvania precedent that suggested that the plaintiffs mere recovery of an assumpsit judgment against the converter might well be a bar to the replevin actions, it did not render a decision on that question in the case before it. The court held that since the principle that the plaintiffs assumpsit judgment against the converter might bar a later action against the ultimate purchasers would only apply if the purchasers had acted in good faith, and since the record before the court revealed a factual dispute as to the purchasers’ good faith, summary judgment in their favor was inappropriate. Id. at 436-38, 235 A.2d at 379-80.

Clearly Linwood is not controlling in the instant case. First, the Linwood court never actually decided whether simply recovering a judgment against the convertor bars any later action against a good faith purchaser. Moreover, we note that at the time that summary judgment was entered for Rishel and VanVoorhis, Underhill had not yet recovered its judgment against Hixon. The judgment against Hixon was entered several weeks later. Thus, Rishel and VanVoorhis are attempting to justify the entry of summary judgment in their favor by relying on events that had riot yet occurred when summary judgment was entered.

In sum, we find nothing in Linwood or any other Pennsylvania precedent that suggests that summary judgment for Rishel and VanVoorhis was justified merely because Underhill recovered a judgment in conversion and trespass against Hixon some weeks after summary judgment for Rishel and VanVoorhis had already been entered.

The order of the trial court is reversed. The matter is remanded for further proceedings. Jurisdiction is relinquished.

JOHNSON, J., files a concurring statement.

JOHNSON, Judge,

concurring.

I agree with so much of the Opinion written by my distinguished colleague Judge Beck, as reverses the order granting summary judgment. However, I do not read the trial court Opinion as expressly precluding suit based on Linwood Harvestore, Inc. v. Cannon, 427 Pa. 434, 235 A.2d 377 (1967). The trial court stated that it was not appropriate for Underhill Coal Mining Company to seek a judgment against Hixon, having already exercised the option to seek judgments against VanVoorhis and Rishel. I do not find this position to be inconsistent with the narrow holding in Linwood Harvestore, supra.

      . Shortly after the entry of summary judgment from which this appeal is taken, Underhill and Hixon entered into a stipulation and agreed to the entry of judgment against Hixon. The judgment was duly entered by the trial court on June 16, 1993.

      . Although the court states in the prefatory section of its opinions that its orders granted demurrers in favor of Rishel and VanVoorhis, the orders themselves state that summary judgment is granted in favor of these parties. We will analyze this matter in accordance with the actual text of the orders on appeal.

      . The applicability of Article Two of the U.C.C. to sales of timber is not in doubt and neither party disputes that fact. See 13 Pa.Cons.Stat.Ann. § 2107(b).
      We do note, however, that in mid-1994 the Pennsylvania legislature enacted Act No. 1994 — 10, which consists of a new section 8311 to Title 42 of the Pennsylvania Consolidated Statutes entitled “Damages in actions for conversion of timber.” The new act provides that in lieu of all other damages or civil remedies, "a person who cuts or removes the timber of another person without the consent of that person shall be liable to that person in a civil action” for the damages specified in the act. The damages calculations provided by the Act vary according to whether the taking of the timber was deliberate or negligent. Since the new Act did not become effective until mid-April 1994, long after the entry of the summary judgments in this case, it is clearly not applicable to this case. Thus, we need not determine whether the provisions of the Act are substantively relevant to our analysis of the issues raised.

      . In Bank of Landisburg v. Burruss, 362 Pa.Super. at 324, 524 A.2d at 900, this court acknowledged that "Goldberg stands for the principle that when the question of good faith is raised in response to a conversion claim, it is permissible to consider the objectives of the commercial legislation regulating the exchange of the chattel which the defendant is accused of converting.” We have carefully considered this principle but conclude that the substantive provisions of Article Two must prevail. Similarly, in Landisburg, the court analyzed provisions of Article Nine and concluded that the good faith of an auctioneer of livestock is not a defense to a conversion action brought by the holder of a security interest in the livestock.

      . We note that neither Rishel nor VanVoorhis moved for summary judgment on this ground. We find no reference in either motion for summary judgment to the entrustment theory.

      . The trial court's opinions do not contain references to the record in support of its conclusion. Thus, we cannot ascertain what deposition testimony or documentary evidence the court may have relied upon in concluding that there is no genuine issue of fact as to whether Underhill entrusted the converted timber to Hixon. We can only indicate that we have found nothing that would yield a similar conclusion.

      . We note in addition that the law of Pennsylvania actually provides that although a plaintiff may recover judgments against all parties responsible for a given loss, only one satisfaction for that loss may be had. Grossman v. Rosen, 424 Pa.Super. 463, 467, 623 A.2d 1, 3 (1993).


author: TAMILIA, Judge:

text:
    652 A.2d 349
    Howard D. MATHUES, Appellant v. TIM-BAR CORPORATION, Trading as Merchandising Innovations.
    Superior Court of Pennsylvania.
    Argued Nov. 16, 1994.
    Filed Dec. 23, 1994.

      David E. Stern, Blue Bell, for appellant.
    Stephen L. Grose, Harrisburg, for appellee.
    Before CIRILLO, TAMILIA and HOFFMAN, JJ.
   TAMILIA, Judge:

Howard D. Mathues appeals from the September 21, 1993 Order granting the preliminary objections of appellee/TimBar Corporation t/a Merchandising Innovations and granting change of venue to York County, Pennsylvania. The facts have been set forth by the trial court as follows.

On or about June 5, 1989, Plaintiff accepted employment with Defendant, Merchandising Innovations (hereafter known as “MI”). The terms of Plaintiffs employment were set out in two letters from Thomas A. Tegen, Defendant’s then president. None of the negotiations which led to the offer of employment or acceptance were conducted in Montgomery County. Both letters originated from MI in Hanover (York County), Pennsylvania and were mailed to Plaintiff in New Jersey.
A subsequent memo was issued on August 16, 1990 to Plaintiff in New Jersey regarding his commissions. This letter also originated from York County.
Prior to March 1992, MI was a corporation wholly owned by Tim-Bar Corporation. MI, which is now located in Adams County, is now one of five divisions of Tim-Bar. MI has its own officers and different offices than Tim-Bar.
Plaintiffs position at MI was as a salesman. He operated out of his home in New Jersey and visited MI offices in York and Adams Counties. MI never had an office in Montgomery County.
Robert Elicker, General Manager at MI, telephoned Plaintiff at his home on December 22, 1992 to inform him that his employment at MI was terminated.

(Slip Op., Rossanese, J., 4/20/94, pp. 1-2.)

As the result of this termination, on February 12, 1993, appellant instituted a breach of contract action in Montgomery County to recover monies allegedly owed to him for salaries, commissions, expenses, etc., pursuant to the employment agreement. On March 18, 1993, appellee filed preliminary objections alleging that venue was not proper since Montgomery County has no relationship to the controversy between the parties. The trial court granted appellee’s preliminary objections and transferred this case to York County. Appellant thereafter filed the present appeal arguing venue is clearly proper in Montgomery County because he regularly conducted business in that county and transactions occurred in Montgomery County out of which this cause of action arose. In addition, appellant contends appellee has failed to prove York County is the proper venue.

The trial court is vested with discretion in determining whether or not to grant a petition to transfer venue. Shears v. Rigley, 424 Pa.Super. 559, 623 A.2d 821 (1993). The determination depends on the facts of the case and will not be disturbed if the decision is a reasonable one in view of those facts. Battuello v. Camelback Ski Corp., 409 Pa.Super. 642, 598 A.2d 1027 (1991). This Court will not reverse the trial court’s decision unless there exists an abuse of discretion. Id.

Venue in an action against a corporation is governed by Pa.R.C.P. § 2179, which states:

(a) Except as otherwise provided by an Act of Assembly or by subdivision (b) of this rule, a personal action against a corporation or similar entity may be brought in and only in
(1) the county where its registered office or principal place of business is located;
(2) a county where it regularly conducts business;
(3) the county where the causé of action arose; or
(4) a county where a transaction or occurrence took place out of which the cause of action arose.

We find no error in the trial court’s assessment of the evidence relevant to venue in this case or its decision to transfer the action to York County. A review of the record finds the trial court had ample evidence to support its determination appellee did not and does not regularly conduct business in Montgomery County to support a finding of venue pursuant to Pa.R.C.P. § 2179(a)(2). This Court must focus on the nature of the acts the corporation allegedly performs in that county, which must be assessed both as to their quantity and quality. Battuello, supra. The trial court found appellee’s acts in Montgomery County to be isolated and limited. Specifically, the court reviewed numerous invoices and letters which apparently originated from only two or three sales and appeared to be billings of later shipments and solicitation by appellant of sales prospects. The court correctly found these activities lacked the requisite “quantity” to establish regularly conducted business. See Purcell v. Bryn Mawr Hospital, 525 Pa. 237, 243^15, 579 A.2d 1282, 1285 (1990) (quantity means those acts which are so continuous and sufficient to be general or habitual). The court also correctly determined the attempted sales contacts and related activities lacked the requisite “quality” to satisfy the regular contact required by Pa. R.C.P. § 2179(a)(2). Id. at 247-48, 579 A.2d at 1287 (mere solicitation of business in a particular county does not amount to regularly conducting business).

Secondly, we find the trial court did not err in its determination, pursuant to Pa.R.C.P. § 2179(a)(4), that venue was improper since neither the cause of action nor transaction or occurrence out of which the cause of action arose occurred in Montgomery County. Appellant’s complaint alleged breach of contract, however the trial court found that none of the negotiations which led to the offer or acceptance of employment were conducted in Montgomery County. Rather, York County was the proper venue since, inter alia, the two negotiation letters and a subsequent commission structure letter originated from appellee’s principal place of business, which was at the time in York County.

If there is any basis for the trial court’s decision to grant the petition to transfer venue, the decision must stand. Shears, supra. Accordingly, we find the trial court did not abuse its discretion in changing the venue to York County.

Order affirmed.


author: CERCONE, Judge:

text:
    652 A.2d 352
    Neil DORSEY v. Irene FREEMAN, a/k/a Paulette Evans, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 16, 1994.
    Filed Dec. 20, 1994.

      Lorraine M. Bittner, Pittsburgh, for appellant.
    Robert W. Koehler, Pittsburgh, for appellee.
    Before ROWLEY, P.J, and HUDOCK and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal awarding legal and physical custody of a minor child to the natural father and granting liberal visitation rights to the child’s maternal grandmother. We affirm.

Neil Dorsey (father) and Tyra Evans (mother) were never married. When their daughter, Sheira Dorsey, was born in November of 1988, father initially refused to believe that the child was his. However, Mr. Dorsey acknowledged paternity when the child was approximately six months old and thereafter maintained regular contact with his daughter.. Father visited Sheira on a weekly basis until the spring of 1990 when he enlisted in the U.S. Marine Corps. For the next two years, father visited the child when his duty schedule would permit, and enjoyed physical custody for approximately one week during the Christmas holidays and for several weeks during the summer.

Mother was killed in March of 1992, and the maternal grandmother assumed physical custody of Sheira. Father sought, and was granted, immediate leave so that he could return home for his daughter. However, the grandmother refused to part with the child. Father filed a complaint seeking custody on April 23, 1992 naming the maternal grandmother, Irene Freeman, as the defendant. A bitter conflict ensued which involved several motions for contempt, enforcement, and modification of the trial court’s interim order. On October 21, 1993, the Honorable Lee J. Mazur granted legal and physical custody of the child to her father while ordering liberal visitation with the maternal grandmother. Mrs. Freeman timely filed a notice of appeal on November 19, 1993. This case presenta one issue for our consideration: did the lower court err as a matter of law and/or abuse its discretion in granting primary custody to father?

In a custody dispute between a parent and a non-parent, the non-parent bears both the burden of persuasion and the burden of production concerning evidence. Karner v. McMahon, 433 Pa.Super. 290, 299, 640 A.2d 926, 930 (1994). The non-parent’s evidentiary burden is a heavy one as the scales are “tipped hard” in favor of the parent. Id. (quoting In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977)). Although it has sometimes been said that a natural parent possesses a “prima facie right” to custody of his or her child, this cannot be understood as designating a property right in the child. Id. (citing Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980)). Parenthood alone is insufficient to defeat a custody claim raised by a non-parent; the hearing court must remain free to award custody to the person who will most adequately foster the best interests of the child. Id. 433 Pa.Super. at 300, 640 A.2d at 931.

In any custody dispute, whether the case involves two natural parents or a parent and a third party, the court’s overriding concern is always to determine what will serve the best interests of the child. Id. This question may never be subordinated to other considerations such as “fundamental rights and fair play.” Andrews v. Andrews, 411 Pa.Super. 286, 289 n. 2, 601 A.2d 352, 353 n. 2 (1991), aff'd, 533 Pa. 354, 625 A.2d 613 (1993). The custody court has the obligation to weigh all relevant factors that could affect the child’s well being. Id. 411 Pa.Super. at 289, 601 A.2d at 353. In a custody dispute, all other issues are deemed less important than the child’s physical, intellectual, moral, and spiritual well-being. Nonnenman v. Elshimy, 419 Pa.Super. 597, 600, 615 A.2d 799, 801 (1992), appeal denied, 535 Pa. 637, 631 A.2d 1008 (1993); Warren v. Rickabaugh, 410 Pa.Super. 431, 600 A.2d 218 (1991).

[T]he fact that the best interests of the child is the paramount consideration is ... beyond peradventure.... Indeed, even the rights of natural parents are subordinate to the child’s best interest. Constant A. v. Paul C.A., 344 Pa.Super. 49, 496 A.2d 1 (1985).

Karner v. McMahon, 433 Pa.Super. at 301-02, 640 A.2d at 932.

Our scope of review in a child custody case is of the broadest type. McMillen v. McMillen, 529 Pa. 198, 202, 602 A.2d 845, 847 (1992).

[T]he appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it. However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination. Thus, an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court’s factual findings[,] and thus ... represent a gross abuse of discretion.

Id. (citations omitted). Although we are empowered to determine whether the hearing court’s conclusions are supported by competent evidence and whether the court’s conclusions are reasonable in light of its factual findings, on issues of credibility and the weight to be accorded particular evidence, we must defer to the hearing judge. Andrews v. Andrews, 411 Pa.Super. at 289, 601 A.2d at 353. Only where we find that the custody order is “manifestly unreasonable” will we interfere with the lower court’s disposition. Id. at 290, 601 A.2d at 353.

We have carefully considered the parties’ briefs in conjunction with our full review of the certified record. The trial court opinion thoroughly explains the factual basis behind the custody decision. Moreover, we find that the certified record reasonably supports Judge Mazur’s conclusions concerning Sheira’s best interests. As we find no indication that the custody order entered in this case is manifestly unreasonable, we affirm the lower court’s decision on the basis of the trial court opinion filed June 29, 1994 by Judge Mazur.

Order affirmed.