author: BECK, Judge:

text:
    522 A.2d 52
    Nancy L. WENRICK, Administratrix of the Estate of Harold Wenrick, Deceased, v. SCHLOEMANN-SIEMAG AKTIENGESELLSCHAFT and Eaton Corporation, Successor-In-Interest by Merger to Cutler-Hammer, Inc. Appeal of EATON CORPORATION Successor-In-Interest by Merger to Cutler-Hammer, Inc. Nancy L. WENRICK, Administratrix of the Estate of Harold Wenrick, Deceased, Appellant, v. SCHLOEMANN-SIEMAG AKTIENGESELLSCHAFT and Eaton Corporation, Successor-In-Interest by Merger to Cutler-Hammer, Inc.
    Superior Court of Pennsylvania.
    Argued March 6, 1986.
    Filed Jan. 7, 1987.
    Reargument Denied March 20, 1987.

      Francis J. Deasey and James L. McKenna, Philadelphia, for Eaton, appellant in No. 1533 and appellee in No. 1668.
    Robert M. Britton and William F. Sullivan, Philadelphia, for Wenrick, appellant in No. 1668 and appellee in No. 1533.
    Robert F. Harchut, Philadelphia, for Schloemann-Siemag, appellee.

      Before CAVANAUGH, BECK and JOHNSON, JJ.
   BECK, Judge:

Harold Wenrick was crushed to death by a component of a large extrusion press which was activated when a fellow worker accidentally tripped the unguarded lever of an electrical limit switch. His widow, Plaintiff Nancy L. Wenrick, brought this action as administratrix of her late husband’s estate and on behalf of herself and her children against Eaton Corporation (“Eaton”), corporate successor of Cutler-Hammer, Inc., the supplier and designer of the electrical control system of the press, and Schloemann-Siemag Ak-tiengesellschaft and Schloemann-Siemag, Inc. (“SMS”), corporate successor of Feller Engineering Co., the manufacturers and. designers of the press. Prior to trial, Plaintiff’s case against SMS was settled for $200,000.

The case came to trial before the Honorable Charles A. Lord of the Court of Common Pleas of Philadelphia County. At the conclusion of the Plaintiff’s case, counsel for Eaton orally moved for a compulsory nonsuit on the three counts pending against Eaton: strict liability, breach of warranty and negligence. Before the trial court had an opportunity to rule on the motion, Plaintiff’s counsel withdrew the breach of warranty claim. Thereafter, the trial court denied the motion for compulsory nonsuit.

At the conclusion of the trial on March 6, 1984, the case was submitted to the jury on special interrogatories. In its answers, the jury found both that the press and the electrical control systems were defective and that the defective conditions were substantial factors in causing Plaintiff’s losses. In addition, the jury also answered interrogatories on a negligence theory with findings that both SMS and Eaton were negligent: SMS in failing to place a guard on the limit switch after the press was delivered to Plaintiff’s employer, and Eaton in failing to warn SMS of the unguarded limit switch. With reference to the findings of negligence, the jury also answered special interrogatories with findings that SMS was 65% negligent and Eaton was 35% negligent. Finally, the jury found that Mr. Wenrick was not contributorily negligent.

The jury then awarded damages to Mrs. Wenrick in the amount of $1,500,000 under the Wrongful Death Act and $25,000 under the Survival Act. This recovery, coupled with the addition by stipulation of $3,222 in funeral expenses, amounted to a total verdict of $1,528,322.

Eaton filed timely post-trial motions, including a motion for judgment n.o.v. On May 20, 1985 a three-judge court en banc, consisting of Judge Lord, the Honorable Joseph P. Braig and the Honorable Lawrence Prattis, denied Eaton’s post-trial motions and entered judgment against Eaton only in the amount of $764,161. The amount of this judgment did not include any damages for delay pursuant to Pa.R. C.P. 238.

Both Eaton and the Plaintiff appealed from the May 20, 1985 Order. On June 12, 1985 the trial court amended its May 20, 1985 Order to add delay damages, thereby increasing the judgment by $287,916.60, for a total judgment of $1,052,077.60.

Eaton, Appellant at No. 1533 Philadelphia, 1985, first argues on appeal that the trial court was deprived of jurisdiction when Eaton attempted to have the case removed to federal court. Eaton also contends that the trial court committed reversible error by admitting expert testimony on the ultimate issue, by refusing to grant a compulsory non-suit and thereafter judgment n.o.v. as to both the strict liability and negligence counts, by improperly charging the jury and in submitting the claims against Eaton to the jury. Apparently, Plaintiff is not pursuing her cross-appeal filed at No. 1668 Philadelphia, 1985 because the trial court added delay damages subsequent to the filing of the cross-appeal.

We reverse the trial court’s denial of Eaton’s Motion for Judgment N.O.V. as to both the strict liability and negligence counts because we find that Eaton was not responsible for the creation of the defect that resulted in Mr. Wenrick’s death.

Initially, however, we will address the fundamental question of jurisdiction that Eaton has raised.

I. JURISDICTION

On March 6, 1984, just prior to closing arguments in the trial of this case, appellant notified the trial court and appellees that it had petitioned the Federal District Court for the Eastern District of Pennsylvania for removal of the case to that court. Normally, the filing of such a petition imposes an automatic stay on any further proceedings in the state court and any proceedings that are conducted in the state court are a nullity until there has been a remand by the federal court. Fischman v. Fischman, 470 F.Supp. 980 (E.D.Pa.1979); 28 U.S.C. § 1446(e). In other words, this federal removal provision has the effect of a statutory stay of further state proceedings. Vendetti v. Schuster, 242 F.Supp. 746, 751 (W.D.Pa.1965).

In response to appellant-Eaton’s removal petition, appellee-Wenrick filed a motion in the District Court requesting, inter alia, that the court declare the petition void ab initio since Eaton had not secured the consent of the co-defendant, SMS, to the removal. With two limited exceptions not applicable to this case, all defendants must join in or consent to removal. Chicago, Rock Island & Pacific Ry. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055 (1900).

In a Memorandum Opinion and Order dated April 16, 1984, Judge VanArtsdalen of the District Court rejected Eaton’s removal petition and remanded the case for further proceedings in the state court. The reason for the rejection of the petition was the failure of appellant to secure SMS’s consent. However, the District Court expressly refused to rule on appellee’s request that the removal petition be declared void ab initio, noting that

[b]ecause no party sought to have the state court proceedings enjoined, and because this court must remand this action for lack of jurisdiction, the question of the effect of removal on the state court proceedings is not properly before this court. That issue is a matter to be determined in the state proceedings on remand.

Memorandum Opinion and Order of VanArtsdalen, J., Wen-rick v. SMS AG, No. 84-1121 (E.D.Pa. April 16, 1984). (R. 1215a n. 2).

Eaton strenuously argues that the removal statute rendered all proceedings in this case in the state court after the filing of the removal petition void. However, Eaton cites no precedent from any federal court sitting in Pennsylvania to support this proposition. The only case that Eaton does cite from such a court is Fischman v. Fischman, supra, but that case presented only the question of the effect of a valid removal on subsequent state court proceedings. It did not present the question raised in this case, namely the effect on state court proceedings of an attempted removal that lacked the necessary jurisdictional requisites. Judge VanArtsdalen specifically held that Eaton’s attempted removal was improvident and without jurisdiction. Memorandum Opinion and Order, supra. (R. 1215a).

We agree with the conclusion of the en banc trial court that the procedure followed by the trial judge in this matter, i.e. continuation of the trial after attempted removal, was proper. In at least two cases, the Supreme Court has indicated that where the attempted removal is invalid, the state court proceedings conducted after the attempted removal may be valid. See Metropolitan Casualty Ins. Co. v. Stevens, 312 U.S. 563, 61 S.Ct. 715, 85 L.Ed. 1044 (1941); Yankaus v. Feltenstein, 244 U.S. 127, 37 S.Ct. 567, 61 L.Ed. 1036 (1917). See and compare Crown Construction Co. v. Newfoundland American Insurance Co., Ltd., 429 Pa. 119, 239 A.2d 452 (1968) (requiring strict compliance with removal statute before jurisdiction of state court will be ousted).

In deciding that the trial court acted properly in bringing the trial of this case to a conclusion despite the filing of the removal petition, we are also influenced by the particular scenario presented by this case. In this regard, we find it noteworthy that despite its argument that the state court proceedings post-removal were void, Eaton itself fully participated in those proceedings until the end of the trial. Moreover, as Judge VanArtsdalen noted, Eaton did not at any time seek to have those proceedings enjoined by the federal court. Finally, because of the improvident timing of the attempted removal immediately prior to closing arguments in this lengthy trial, a decision that the later state court proceedings were void would have the absurd and impractical result of voiding the entire trial. The state court, therefore, was clearly acting within its power in completing the trial after the invalid removal attempt.

II. STRICT LIABILITY: NEGLIGENCE

This accident occurred because one of Mr. Wenrick’s fellow workers accidentally tripped an unguarded limit switch which in turn caused the billet loader of the press to activate. Mr. Wenrick was standing in the path of the billet loader, assisting in making repairs to the press. The press had not been deactivated prior to repair, as it should have been, and Mr. Wenrick was crushed to death.

Of central importance to the legal analysis in this case is the definition of the product and the defect in the product which gave rise to both plaintiff’s strict liability and negligence theories. Once the product and the defect therein are defined, it becomes clear that SMS, not Eaton, was responsible for the defect and, thus, for Mr. Wenrick’s death.

The defective product in this case is the press as a whole and the defect in that product is an unguarded limit switch positioned by a staircase where the switch could easily be inadvertently tripped as it tragically was. In fact, both parties’ briefs describe the defect in precisely this dual manner — an unguarded switch abutting a staircase. Brief for Appellant at p. 26; Brief for Appellee at p. 48. Further, it was this dual defect that caused this accident. As Wen-rick states in her brief, “[i]t was the conjunction of the unguarded limit switch in an unguarded condition and its being mounted on the press next to an entrance-way where it was likely to be tripped that combined to cause Mr. Wenrick’s death.” Brief for Appellee at p. 48.

The record is relatively clear as to the roles Eaton and SMS variously played in the manufacture of the press. Eaton apparently designed and definitely manufactured the electrical system to power the press but its design and manufacture did not include the limit switch or its positioning. It based its design on sequence of operation diagrams and similar specifications SMS provided to Eaton. Eaton did not install the electrical system, but sub-contracted the actual wiring operation. Eaton did visit the location of the press after installation to debug and adjust the electrical system at various times during its initial six months of operation. (R. 860a). Eaton’s electrical system design did not include a direction as to the exact location of the limit switch nor, obviously, did it include any direction as to the placement of the staircase which formed a part of the press itself. Eaton did not manufacture or supply any of the limit switches to be used on the press.

On the other hand, SMS designed, manufactured and installed the press. SMS obtained the unguarded limit switch from a third party and installed it. SMS, not Eaton, designed and built the portion of the press where the switch was, and determined exactly where the switch would be, designed the pit beneath the press and located the steps leading to the pit directly adjacent to the switch. (R. 661a-64a).

We note that in reviewing the record to ascertain these facts, we have remained fully conscious that, as this court has recently stated,

... on appeal from the refusal of the lower court to enter judgment n.o.v., the sole duty of the appellate court is to decide whether there was sufficient evidence to sustain the verdict, granting the verdict winner every favorable inference reasonably to be drawn from the evidence and rejecting all unfavorable testimony and influences [sic].

Walasavage v. Marinelli, 334 Pa.Super. 396, 407, 483 A.2d 509, 514-15 (1984).

As to many of the facts recited above, there was no real dispute between the parties. For example, there is no evidence of record indicating that Eaton played any role in manufacturing, supplying, selling or installing the switch on the press. Wenrick’s own expert not only testified to all these facts, but also testified that SMS, not Eaton, located the switch on the press. (R. 661a-65a). In fact, Wenrick’s own Brief fails to cite to any place in the record where any definite evidence was adduced to show that Eaton was responsible for the choice of the switch, the installation thereof without a guard or the positioning of either the switch or the staircase.

Wenrick’s Brief states that because Eaton participated in the “design”, it “necessarily” had to have participated in the “positioning and obligation to guard that switch.” Brief for Appellee at p. 48. Wenrick provides no record reference to support this “necessary” conclusion. The only true support Wenrick provides for its contention that Eaton positioned the switch is the assertion that Eaton provided the drawings that indicated where the wires had to be placed to wire the limit switches. To support this assertion, Wenrick refers to a portion of the testimony of Eaton’s project engineer assigned to this project. However, Wen-rick’s reference to that testimony is misleadingly selective, since the engineer specifically testified that although Eaton did the drawings showing wire placement, those drawings did not indicate where any of the limit switches themselves were to be located. (R. 866a). The same witness also expressly testified that SMS determined where the limit switches were to be located on the press. (R. 860a). And as previously indicated, Wenrick’s own expert testified that SMS, not Eaton, positioned the switch by the staircase.

Having thus clarified what the evidence reveals as to the respective roles of Eaton and SMS in the manufacture of the true product involved here, i.e. the press, the responsibility for the defect in that product becomes clear. Eaton is the designer and manufacturer of a component part of the product. The component for which Eaton is responsible is the electrical system. Our Supreme Court has held that a component part manufacturer can indeed be held strictly liable when the part it manufactured is defective and causes injury, so long as the component part was not substantially changed after it left the hands of the manufacturer. Burbage v. Boiler Engineering & Supply Co., Inc., 433 Pa. 319, 325, 249 A.2d 563, 566 (1969). See also Orion Insurance Co. v. United Technologies Corp., 502 F.Supp. 173, 178 (E.D.Pa.1980). Liability does not automatically shift to the party who assembles the part into the final product unless in so doing that party substantially changes the part and thereby renders it defective. Id. Our Supreme Court has also recognized that the lack of proper safety devices can constitute a defective design for which recovery under 402a can be had. Bartkewich v. Billinger, 432 Pa. 351, 354, 247 A.2d 603, 605 (1968).

In this case, there was no evidence that the component part that Eaton designed and manufactured, i.e. the electrical wiring system, was defective when it left Eaton’s hands. There is no contention that the system malfunctioned. There is only the contention that the aspect of the design and assembly of the press which placed an unguarded switch next to a staircase was defective. Eaton itself did not participate in that design or assembly.

Although it is the function of the jury to determine if a defect in a product exists, they may only “find a defect where the product left the supplier’s control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for the intended use.” Azzarello v. Black Brothers, 480 Pa. 547, 559, 391 A.2d 1020, 1027 (1978). The electrical system itself did not leave Eaton’s control in a defective condition in either of the aforementioned ways. In fact, it was not even rendered defective when incorporated into the press, since the unguarded switch and the staircase were never part of Eaton’s system. They were parts of the press as a whole, for which SMS is responsible.

Eaton’s lack of responsibility in this case can perhaps best be illustrated by a comparison to another case in which Eaton’s corporate predecessor, Cutler-Hammer, Inc. (“CH”), was properly held liable for the defective design of an electrical control system it provided to Vernon Allsteel (“VA”) for installation in a press VA manufactured. Burnett v. Mackworth G. Rees, Inc., 109 Mich.App. 547, 311 N.W.2d 417 (1981). In that case, a woman’s hand was crushed when a control button fell off the press when she was operating it. The button itself had been manufactured by Mackworth G. Rees, Inc. (“Rees”) and purchased by CH who directed where it was to be placed on the press. VA installed the control button. The court upheld a jury verdict against CH and VA and absolved Rees of liability, stating that Rees had merely supplied a- non-defective off-the-shelf button. In contrast, CH had designed the circuitry to be used in the control button and it was that circuitry that proved to be defective. Id. at 549-559, 311 N.W.2d at 418-22.

The contrast between Burnett and this case is clear. In Burnett, CH’s (Eaton’s) electrical control system had a defective circuitry design and CH had ordered and provided to VA the control button. Here, Eaton’s system had no such defect and Eaton did not provide or locate the switch.

The remaining question is whether Eaton is liable in negligence. Eaton’s liability in negligence can either be premised on its alleged negligent production of a defectively designed product or on its failure to warn SMS of the danger presented by the limit switch as it was positioned after the press was operational. Given the foregoing analysis of the strict liability aspect of this case, Eaton is just as clearly not liable for the negligent production of a defective product. Since Eaton’s product was not defectively designed, it is not liable under either Section 402A or negligence principles.

However, it is clear from a reading of the pleadings and record that Wenrick’s true focus in its negligence claim is the failure of Eaton to warn SMS, after the press was in operation, of the defect in the press resulting from the positioning and unguarded condition of the switch. Admittedly, Wenrick did not clarify this aspect of its negligence theory until after the close of evidence during a conference with the trial judge concerning the charge to the jury. Nevertheless, at that time an exchange between counsel and the trial judge took place in which counsel for Wenrick indicated that the legal basis for this allegation of negligence was Section 324A of the Restatement (Second) of Torts. (R. 903a-12a).

Section 324a states:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Restatement (Second) of Torts 324A (1965). Counsel for Wenrick also cited to Blessing v. United States, 447 F.Supp. 1160 (E.D.Pa.1978) in support of this allegation of negligence. Blessing concerned a negligence claim by an injured press operator against the Occupational Safety and Health Administration. Plaintiff alleged that because OSHA had conducted inspections at his employer’s plant, and allegedly had negligently failed to detect the defect in the press that caused plaintiff’s injury, OSHA was liable to plaintiff. This theory was put forth, at least in part, under Section 324A. Wenrick apparently attempted to fit within the same theory of negligent inspections in this case.

When counsel presented this theory to the trial judge, the judge expressed his doubts as to whether there was any indication in the evidence that Eaton ever undertook to or did inspect the limit switch. Nevertheless, the trial judge stated that Section 324A did appear to set forth the only legal basis for Wenrick’s claim of negligence after the press was operational. Eaton’s counsel duly excepted. (R. 907a-12a).

The trial judge concluded that he “intended to charge negligence in their failure to warn Schloemann [SMS], whether it resulted from the inspection or from their alleged duty as a designer.” (R. 911a). In fact, the court’s rather brief charge to the jury did not make any reference to the specific requirements of Section 324A. The charge was merely a general statement of the law of negligence, although as to Eaton’s negligence the charge did focus entirely on Eaton’s failure to warn SMS, not Wenrick or his employer, of the danger presented by the switch. The only possible legal support for the imposition of liability on Eaton to Wenrick as a result of Eaton’s breach of its alleged duty to warn SMS after the press was operational is Section 324A, which addresses precisely such a three-party situation.

However, as the trial judge made clear at the time Wenrick’s counsel first advanced the Section 324A argument, the record is completely devoid of evidence to show that Eaton ever undertook to inspect the limit switch or any other part of the press, or that Eaton did in fact inspect the switch itself, or that SMS or Wenrick was relying on Eaton to so inspect or that Eaton’s failure to inspect it in any way increased the risk of harm to anyone resulting from the switch. In fact, the record contains only testimony to the contrary.

For example, although Eaton’s project engineer did testify that he was at the press’ location after assembly to debug and adjust the electrical system and saw the unguarded limit switch at that time (R. 860a-62a, 882a-83a), he also testified that it was not Eaton’s responsibility to warn SMS of any danger presented by the switch. (R. 883a-84a). Moreover, the engineer testified that SMS had never consulted Eaton as to the press itself or the position of the switches. (R. 863a).

The only testimony to the contrary is that of Wenrick’s expert, who stated that is his opinion Eaton had a “duty” to warn SMS (R. 624a). From what this supposed duty arose is not indicated.

18] This evidence cannot conceivably be construed as supporting Eaton’s liability under Section 324A. Wenrick did not even meet the minimal requirements of alleging and proving an undertaking by Eaton, a failure to fulfill that undertaking or any causal connection between that alleged failure and Wenrick’s death. See Evans v. Liberty Mutual Insur. Co., 398 F.2d 665 (3d Cir.1968); Isaacson v. Mobil Propane Corp., 315 Pa.Super. 42, 461 A.2d 625 (1983). In consequence, the Section 324A claim obviously must fail.

The Order of May 20, 1985 is reversed and the case is remanded for entry of judgment N.O.Y. in favor of Eaton.

      . This failure to warn theory is to be distinguished from an allegation that Eaton’s product was defective because it left Eaton’s hands with inadequate warnings as to the dangers presented by the product. In Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975), the Supreme Court expressly stated that a product defect is not limited to a design or manufacture defect. The defect can be the lack of adequate warnings or instructions. Id., 462 Pa. at 100, 337 A.2d at 902. Although Wenrick appears not to have seriously contended that Eaton’s product had an inadequate warnings defect at the time of delivery to SMS, we note that any such contention would be meritless. A component part manufacturer should not be burdened with the heavy duty of inquiring into every possible use of their part and warning of every possible danger that might be associated with the integration of their part into the completed product. Frazier v. Materials Transportation Co., 609 F.Supp. 933 (W.D.Pa.1985). This is particularly true here, where SMS itself was an experienced press manufacturer and had sole responsibility for the placement of the switch and staircase. Any design or lack of warnings defects in this case are chargeable to SMS who was responsible for the ultimate design and construction of the press. It was both more practical for and more within the expertise of SMS to incorporate safety devices on the switch and/or to warn of the danger that the unguarded switch presented. Frazier, supra; Verge v. Ford Motor Co., 581 F.2d 384, 387-89 (3d Cir.1978); Taylor v. Paul O. Abbe, Inc., 516 F.2d 145 (3d Cir.1975); Lesnefsky v. Fischer & Porter Co., Inc., 527 F.Supp. 951, 956 (E.D.Pa.1981). Eaton certainly had no duty to put a warning on its electrical system regarding the danger that might be presented if an unguarded switch next to a staircase was placed on the press itself.

      . Interestingly, the engineer also testified that he had no recollection of the staircase to the pit being located adjacent to the switch at the time he was at the press location. (R. 880a).

      . Because we direct that Eaton is entitled to judgment N.O.V., we need not address any of Eaton’s remaining allegations of error.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    522 A.2d 59
    COMMONWEALTH of Pennsylvania v. James F. KUCHAR, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dee. 1, 1986.
    Filed Jan. 14, 1987.
    Reargument Denied March 24, 1987.

      Leonard N. Zito, Bangor, for appellant.
    James P. Gregor, Stroudsburg, for appellee.
    Before TAMILIA, HOFFMAN and HESTER, JJ.
   TAMILIA, Judge:

Appellant, James F. Kuchar, was found guilty by a district magistrate of violating the maximum speed limits and was sentenced to pay a $59 fine in accordance with the provisions of 75 Pa.C.S.A. § 3362. A verdict was not rendered at the conclusion of the February 24, 1986 hearing, but rather, was mailed to appellant on April 16, 1986. Appellant then appealed to the Court of Common Pleas, wherein, after a trial de novo, he was found guilty of violating 75 Pa.C.S.A. § 3362. Appellant then instituted the present appeal.

Appellant raises two issues for our review, both of which pertain to alleged errors in the proceeding before the district magistrate. We note that no allegations have been raised concerning errors in the trial de novo. Appellant first alleges the district magistrate erred in not announcing the verdict and sentence in open court immediately upon the conclusion of the hearing. Furthermore, appellant claims the issuing officer’s failure to specify on the citation the manner in which appellant’s vehicle was timed for the speeding violation deprives appellant of his due process right to notice.

Pennsylvania Rule of Criminal Procedure 90 provides: A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, citation, summons, or warrant, or a defect in the proceedings of this chapter, unless the defendant raises the defect before the conclusion of the summary trial and the defect is prejudicial to the rights of the defendant.

Appellant did not raise either issue during the summary trial. Thus, pursuant to Pa.R.Crim.P. 90, appellant cannot now argue for discharge or dismissal of this action when he failed to properly raise the issues below. Also, it appears the delay in rendering the verdict was at the appellant’s instigation as he submitted points of law to the district justice at the conclusion of the trial, with the request that she review them prior to making her determination. (Ap-pellee’s brief at 2).

Furthermore, we are in full agreement with the lower court’s finding that “the alleged improprieties are of no consequence since the Defendant received a trial de novo in the Court of Common Pleas.” (Slip Op. O’Brien, J., 7/14/86, p. 2). As this Court stated in Commonwealth v. Gussey, 319 Pa.Super. 398, 403-04, 466 A.2d 219, 222 (1983) (quoting Commonwealth v. Virnelson, 212 Pa.Super. 359, 367, 243 A.2d 464, 469 (1968)), “De novo review entails, as the term suggests, full consideration of the case anew. The reviewing body is in effect substituted for the prior decision maker and redecides the case.” Appellant has raised no allegations concerning errors in the trial de novo proceedings, and since we have no basis to review alleged errors in the summary trial, we must affirm judgment of sentence.

Judgment of sentence affirmed.


author: WICKERSHAM, Judge:

text:
    522 A.2d 60
    COMMONWEALTH of Pennsylvania, Appellant, v. John J. WATERS, a/k/a John Waters.
    Superior Court of Pennsylvania.
    Submitted Jan. 13, 1987.
    Filed March 3, 1987.

      Gaele M. Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellee.
    Before CAVANAUGH, WICKERSHAM and McEWEN, JJ.
   WICKERSHAM, Judge:

On April 21, 1984, John J. Waters was arrested and charged with driving under the influence of alcohol in violation of 75 Pa.C.S.A. § 3731. On May 15, 1985 he entered a plea of nolo contendere and was adjudicated guilty. This was his third conviction within seven years, and the Commonwealth argued that subsection 3731(e)(l)(iii) required the imposition of a minimum term of ninety (90) days imprisonment.

Section 3731(e) provides in pertinent part:

(e) Penalty.—
(1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:
(i) not less than 48 consecutive hours.
(ii) not less than 30 days if the person has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.
(iii) not less than 90 days if the person has twice previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.
(iv) not less than one year if the person has three times previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.
(2) Acceptance of Accelerated Rehabilitative Disposition or any other form of preliminary disposition of any charge brought under this section shall be considered a first conviction for the purpose of computing whether a subsequent conviction of a violation of this section shall be considered a second, third, fourth or subsequent conviction.

75 Pa.C.S.A. § 3731(e)(1), (2).

The trial court, however, sentenced appellee to six months probation under the provisions of 35 Pa.S.A. § 780-118(f) which provides:

(f) If, after conviction, the defendant requests probation with treatment or civil commitment for treatment in lieu of criminal punishment the court may appoint a qualified physician to advise the court in writing whether it would be preferable for the purposes of treatment and rehabilitation for him to receive a suspended sentence and probation on the condition that he undergo education and treatment for drug abuse and drug dependency, or to be committed pursuant to the Mental Health and Mental Retardation Act of 1966 for treatment in lieu of criminal punishment, or to receive criminal incarceration. A copy of the physician’s report shall be furnished the court, the defendant and the government attorney. The court shall exercise its discretion whether to accept the physician’s advice.

The Commonwealth has appealed and states the issue before us as:

Where defendant is convicted of driving under the influence of alcohol, may the lower court circumvent the mandatory minimum sentencing provisions of the Drunk Driving Law by sentencing defendant to probation under Section 18 of the Drug Act?

Brief for Appellant at 3.

In Commonwealth v. Sojourner, 513 Pa. 36, 39, 518 A.2d 1145, 1146-1148 (1986), Chief Justice Nix held:

The first question is whether the legislature has authority to remove from the court the right to suspend sentence and impose probation. This Court has long held that establishment of punishment for criminal acts is well within the confines of legislative authority____ For example, we recognized in Commonwealth v. Wright, [508 Pa. 25, 494 A.2d 354 (1985)], that the legislature, in promulgation of the Mandatory Minimum Sentencing Act, 42 Pa.C.S. § 9712(c) “... restricted] the judge’s discretion to be lenient in imposing sentence. When the statute is applicable, the court lacks authority to place a convicted offender on probation or suspend sentence.” ******
Having closely examined the penalty provisions of section 3731, we are satisfied that the aforementioned provisions are clear and free from ambiguity. Section 3731(e)(l)(i) explicitly provides that "... the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment----” (Emphasis added.) 75 Pa.C.S. § 3731(e)(l)(i). The word “shall” as used in a statute is generally regarded as mandatory, i.e., imposing a duty upon the party to whom the statute is directed. We find no basis for a contrary interpretation of the word “shall” in the context of section 3731.
******
Thus, the statute itself explicitly states that the sentences specified are “mandatory.” In addition, the legislature not only has established specific penalties for violators of section 3731, but has provided also a mechanism under section 3731(e)(4) whereby “[t]he Commonwealth has the right to appeal directly to the Superior Court any order of court which imposes a sentence for violation of this section which does not meet the requirements of this section.” In view of the long-standing judicial policy of limiting review of the sentencing discretion in this Commonwealth, the express provision for a direct appeal for the sole purpose of challenging a sentence is a clear expression of this legislative intent to make these minimum provisions mandatory. (Citations and footnotes omitted).

We find untenable appellee’s contention that Section 18 is a statute directed to a specific class of offenders, while Section 3731 is a purportedly general sentencing statute. Section 18 applies to all “non-violent,” drug or alcohol dependent offenders. On the other hand, section 3731 applies specifically to “drunk drivers” — it defines the crime defendant committed and the penalty, a mandatory minimum sentence of imprisonment. The drunk driving Law is hardly a general sentencing provision as appellee contends. A specific, newly enacted statute such as section 3731, applying only to drunk drivers and providing for a mandatory minimum sentence for the specific offense of drunk driving, must be construed to take precedence over Section 18, a more general statute enacted over ten years before section 3731, permitting suspension of sentence and imposition of probation for drug or alcohol dependent offenders, convicted of any non-violent crime. See 1 Pa.C.S.A. §§ 1933, 1936.

Finally, construing Section 18 to be wholly inapplicable to persons convicted of drunk driving pursuant to section 3731 does not result in the repeal of Section 18 by implication, as appellee contends. On the contrary, under such a construction of the two statutes, Section 18 continues to apply in full force and effect to all drug or alcohol dependent, non-violent offenders. It simply does not, and should not, apply to drunk drivers.

Reversed and remanded for resentencing in accordance with this opinion. Jurisdiction is relinquished.

      . The petition requested imprisonment for a minimum of 90 days in accordance with section 3731(e)(l)(iii), which requires imposition of that term where a defendant has twice been convicted of driving under the influence of alcohol within the previous seven years. Section 3731(e)(2) further provides that acceptance of Accelerated Rehabilitative Disposition (ARD) shall be considered a first conviction for purposes of § 3731(e)(l)(ii-iv).
      Defendant was placed in ARD on July 6, 1979 for driving under the influence of alcohol and convicted of driving under the influence of alcohol on October 14, 1980. The Commonwealth notes however, that defendant’s 1979 ARD case may not be equated with a conviction under § 3731(e)(2) for purposes of computing the mandatory minimum penalty pursuant to § 3731(e)(1). Commonwealth v. Frost, 342 Pa.Super. 173, 492 A.2d 448 (1985) (§ 3731(e)(2) applies only to acceptances of ARD after January 14, 1983); Commonwealth v. Godsey, 342 Pa.Super. 24, 492 A.2d 44 (1985) (§ 3731(e)(2) applies prospectively; only ARD cases subsequent to the effective date of the statute — January 14, 1983 — are equivalent to a conviction for purposes of computing the penalty on subsequent convictions). Accordingly, defendant, who had a prior DUI conviction should have been sentenced to a mandatory minimum sentence of at least 30 days imprisonment pursuant to § 3731(e)(1)(h). Commonwealth v. Kopycinski, [353 Pa.Super. 387] 510 A.2d 365 (Pa.Super.1986) (§ 3731(e)(1)(h) is constitutional as it applies to convictions under the old drunk driving law); Commonwealth v. Grady, 337 Pa.Super. 174, 486 A.2d 962 (1986) [1984] (same).
      Brief for Appellant at 6, footnote 5.


author: BECK, Judge: OLSZEWSKI, Judge,

text:
    522 A.2d 63
    COMMONWEALTH of Pennsylvania, Appellant, v. Michael CEPHAS.
    Superior Court of Pennsylvania.
    Argued Sept. 5, 1986.
    Filed March 4, 1987.

      Sarah Vandenbraak, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Jules Epstein, Assistant Public Defender, Philadelphia, for appellee.
    Before WICKERSHAM, OLSZEWSKI and BECK, JJ.
   BECK, Judge:

The Commonwealth appeals an order granting a suppression motion. The court suppressed appellee’s statements after finding that appellee did not knowingly waive his privilege against self-incrimination. We affirm.

Appellee was arrested on October 7, 1983 and charged with rape, indecent assault, indecent exposure, unlawful restraint, terroristic threats, and simple assault. He moved to suppress two statements made to police during custodial interrogation. After a hearing, the motion was granted. The Commonwealth petitioned the court to reconsider. The court vacated its order pending reconsideration. The court denied the petition and reinstated its order granting the motion to suppress. This timely appeal followed.

Initially, we note that we have jurisdiction of this appeal from a pre-trial suppression order because the Commonwealth certified in good faith that the order terminated or substantially handicapped its prosecution. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

Appellee was arrested on the basis of the victim’s description. He was taken to the Sex Crimes Unit of the Philadelphia Police. At the time of his arrest, appellee was a street person living in an alley near his foster family’s home. He had a long history of mental illness and hospitalization for this illness. He had consistently been diagnosed as a schizophrenic. His most recent hospitalization was about two weeks before his arrest after he was seen in a tree near an elementary school screaming at the school children and yelling for the principal to meet his demands.

Appellee was known to the police to be suffering from mental illness. When the arresting officers came to observe the alley where appellee lived, his foster sister begged the officer to find help for appellee and to have him put away somewhere for his mental illness.

Upon his arrival at the Sex Crimes Unit, appellee was interviewed for background information. He was placed in handcuffs in a small detention room. He exhibited bizarre and psychotic behavior. The entire time he was in the detention room, he kicked the walls and the door, and he kept yelling inane comments, including that he was Ed RendelFs son and that he had dinner with Mr. Rendell the night before at Mr. RendelFs home. Mr. Rendell is the former District Attorney of Philadelphia and he is white. Appellee is black.

Appellee was initially interrogated in an office by a detective who knew that appellee suffered from mental illness. ' During this interrogation, appellee acted childishly. He refused to sit unless given a cigarette or soda and cookies. The detective ceased the interrogation and returned appellee to the detention room where appellee continued his bizarre behavior.

Appellee was interrogated again and he continued to display his childlike behavior. He was read the warnings mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and he made incriminating statements. The court found that the interrogating detective knew that a statement was essential to the prosecution of the case. The victim had been unable to make a positive photo identification of appellee after his arrest. The court found that the detective skillfully manipulated appellee through a process of reward and punishment to make the statements.

At the hearing on the motion to suppress, the Commonwealth presented an expert who testified that appellee was capable of understanding his Miranda warnings and that he was capable of knowingly waiving his Fifth Amendment privilege against self-incrimination. Appellee presented two experts who testified to the contrary.

The court found after reviewing this testimony that ap-pellee was incapable of understanding the significance of the Miranda warnings and of making a competent waiver of his right to remain silent or of his right to have counsel present. The court accordingly concluded that the Commonwealth did not meet its burden to show a knowing waiver of the Constitutional right.

The Commonwealth contends that appellee voluntarily chose to speak after receiving Miranda warnings. The court, on the other hand, found that appellee did not voluntarily waive Miranda; it viewed his confession as the product of a deliberate effort on the part of the police detective to exploit appellee’s mental weakness. We need not resolve this dispute. Regardless of whether a waiver of Miranda is voluntary, the Commonwealth must prove by a preponderance of the evidence that the waiver is also knowing and intelligent.

Miranda holds that “[t]he defendant may waive effectuation” of the rights conveyed in the warnings “provided the waiver is made voluntarily, knowingly and intelligently.” The inquiry has two distinct dimensions. First the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that Miranda rights have been waived.

Moran v. Burbine, 475 U.S. 412, —, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410, 421 (1986) (citations omitted). See also Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 1884, 68 L.Ed.2d 378 (1981); Tague v. Louisiana, 444 U.S. 469, 100 S.Ct. 652, 62 L.Ed.2d 622 (1980); Commonwealth v. Scarborough, 491 Pa. 300, 312-313, 421 A.2d 147, 153 (1980); Commonwealth v. Cannon, 453 Pa. 389, 309 A.2d 384 (1973). Moreover, in reviewing an order granting a suppression motion, we are bound by the suppression court’s findings of fact if the findings are supported by competent evidence. Commonwealth v. Hackney, 353 Pa. Super. 552, 510 A.2d 800 (1986).

With these principles in mind, we affirm the suppression court. The court found that appellee suffered from chronic undifferentiated schizophrenia and that this mental illness prevented him from understanding the Miranda warnings. The court also found that appellee was incapable of making a knowing and intelligent waiver of his privilege against self-incrimination. These findings are supported in the record by the testimony of Dr. Berman, appellee’s expert. Dr. Berman based his opinion on a diagnosis of appellee after a personal interview and on appellee’s previous mental health history. Dr. Berman’s qualification as an expert was not challenged. Therefore, there is competent evidence to support the court’s findings. Accordingly, the court correctly concluded that the Commonwealth failed to prove that appellee knowingly and intelligently waived his privilege against self-incrimination. We acknowledge that a Dr. Schwartzmann testified for the Commonwealth and disputed Dr. Berman’s findings. However, this testimony only created a credibility issue. It is exclusively the province of the suppression court to determine the credibility of the witnesses and the weight to be accorded their testimony. Commonwealth v. Neely, 298 Pa.Super. 328, 340-341, 444 A.2d 1199, 1205 (1982), overruled on other grounds, Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983).

Finally, the Commonwealth contends that this case is controlled by Colorado v. Connelly, — U.S. —, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). In Connelly, a mentally ill defendant waived his Miranda rights because he believed that he was compelled to do so by the “voice of God.” Id. at —, 107 S.Ct. at 519, 93 L.Ed.2d at 480. The United States Supreme Court held that under the federal constitution this waiver would not be found to be involuntary in the absence of misconduct on the part of government officials. The Court, however, did not purport to decide whether Connelly’s waiver was knowing and intelligent. See Id. at — n. 4, 107 S.Ct. at 524 n. 4, 93 L.Ed.2d at 487 n. 4 (majority opinion) and at — n. 5, 107 S.Ct. at 525 n. 5, 93 L.Ed.2d at 488 n. 5 (Brennan, J., dissenting). This remains a distinct and independent requirement for the admission of a confession into evidence. See Colorado v. Spring, — U.S. —, —, 107 S.Ct. 851, 857, 93 L.Ed.2d 954 (1987).

In summary, federal law requires that a suppression court undertake a two step inquiry into the validity of a Miranda waiver. The court must first determine whether the waiver was voluntary in the sense of being the result of an intentional choice on the part of a defendant who had not been subject to undue governmental pressure. The court must then focus on cognitive factors to determine if the waiver was knowing and intelligent — i.e. whether the defendant was aware of the nature of the choice that he made by giving up his Miranda rights.

In the case sub judice, the trial court found on the basis of credible evidence that appellee’s confession was not made knowingly because he was incapable of comprehending the meaning of the Miranda warnings at the time he was interrogated. Accordingly, we affirm the suppression order. Cf. State v. Daily, 351 S.E.2d 431 (W.Va.1986) (senile defendant with low intelligence and hearing loss did not knowingly waive Miranda).

Order affirmed.

OLSZEWSKI, J., files a concurring opinion.

OLSZEWSKI, Judge,

concurring:

Though agreeing with the majority’s disposition of this particular case, I write separately to emphasize that this decision is limited to the facts of this case. The majority’s holding does not establish a per se rule that an accused is incapable of waiving his constitutional rights whenever he asserts that he is suffering from a mental illness. Both this Court and our Supreme Court have recognized that the mental or physical deficiencies of an accused are not conclusive evidence of an accused’s inability to waive his constitutional rights. See Commonwealth v. Glover, 488 Pa. 459, 412 A.2d 855 (1980) (there is no per se rule of inability to waive constitutional rights based on mental deficiencies); Commonwealth v. Neely, 298 Pa.Super. 328, 444 A.2d 1199 (1982) (a defendant may be suffering from a mental illness and still be capable of waiving his constitutional rights).

Trial judges, consequently, should be more wary of concluding that an accused is incapable of waiving his constitutional rights merely because he suffers from a mental illness. The trial judge must thoroughly examine all the circumstances surrounding the particular case to determine if the accused made a knowing and intelligent waiver. See Glover, supra.


author: ROBERTS, Judge:

text:
    522 A.2d 66
    Daniel J. STICKNEY and Harold S. Malseed v. CHESTER COUNTY COMMUNICATIONS, LTD. t/d/b/a the Main Line Chronicle and Bryn Mawr Home News, Bernard Kramer, Irvin S. Lieberman, Charles Montgomery Appeal of CHESTER COUNTY COMMUNICATIONS, LTD. t/d/b/a the Main Line Chronicle and Bryn Mawr Home News, Irvin S. Lieberman and Charles Montgomery.
    Superior Court of Pennsylvania.
    Argued June 25, 1986.
    Filed March 4, 1987.

      Samuel E. Klein, Philadelphia, for appellants.
    John M. Gallagher, Jr., Media, for appellees.
    Before OLSZEWSKI, HOFFMAN and ROBERTS, JJ.
   ROBERTS, Judge:

This appeal is from the denial of post-trial motions after a jury verdict in a libel action against Chester County Communications (doing business as The Main Line Chronicle), Irvin S. Lieberman (publisher), and Charles Montgomery (reporter). The jury found that appellees Daniel Stickney and Harold Malseed, both Haverford Township police officers, were defamed in a series of seven articles published in the Chronicle during 1975 and 1976. The articles related to three incidents in which unnecessary force was allegedly used against juveniles. Stickney was involved in all three while Malseed was involved only in one. Verdicts were returned in favor of Stickney in the amount of $100,000 and in favor of Malseed in the amount of $50,000. Appellants contend that the evidence was insufficient to establish that the articles were published with actual malice. We conclude that the record adequately supports the jury’s verdicts, and accordingly we affirm.

On review from a denial of a motion for judgment n.o.v. in a libel action, our task is:

to make an independent examination of the evidence adduced to determine if it was constitutionally sufficient to warrant a finding by the jury of actual malice, and in so doing, the evidence, together with all reasonable inferences therefrom, must be considered in the light most favorable to the verdict winner, here the plaintiff. If it is not sufficient, [the defendant] is entitled to judgment n.o.v.

Sprague v. Walter, 357 Pa.Super. 570, 580-581, 516 A.2d 706, 716-717 (1986), quoting Corabi v. Curtis Publishing Co., 441 Pa. 432, 458, 273 A.2d 899, 912 (1971).

The incident which precipitated the series of articles occurred on February 3, 1975, when Stephen Fischera was observed operating an unlicensed motorcycle on a public roadway. Stickney and Malseed, who were patrolling in an unmarked police van, attempted to stop Fischera. A chase ensued, eventually leading into a residential development from which there was only one exit. Stickney got out of the van to block the exit while Malseed continued to pursue Fischera. A few minutes later, Fischera came around a corner driving the motorcycle directly at Stickney. Fearing for his own safety, Stickney fired a shot at the front tire of the cycle compelling Fischera to stop. When Stickney, Malseed, and two other police officers attempted to take Fischera into custody, a violent struggle followed in which one of the other officers was kicked in the groin. Fischera, attempting to tear away from the officers, fell face-first onto the ground, injuring himself. He was eventually handcuffed, and treated at a hospital. He was subsequently adjudicated delinquent as a result of the foregoing incident.

A second incident concerned the arrest of Joseph Concor-dia. Stickney and another officer were suspended for handcuffing Concordia in violation of a police directive not to handcuff juvenile offenders. The suspensions were later vacated by a Civil Service Board which reviewed the case and found that Concordia’s behavior warranted handcuffs because of the risk of serious injury to the officers.

The third incident involved the accidental shooting of Michael Pedano. Pedano was a passenger in a car which had been stopped by Stickney and other officers because it matched the description of a car which had been used in an armed robbery. With Pedano leaning against the car, Stick-ney attempted to frisk him with one hand while holding his shotgun in the other. Pedano turned and tried to grab Stickney’s pistol from its holster, at which time the shotgun accidentally discharged injuring Pedano in the head.

The series of articles in the Chronicle painted a vastly different picture of these incidents. Headlines referring to the Fischera incident included:

“Police Pair Mash Biker’s Face, Admit Pistol Shot”
“Boy’s Savage Beating Under Investigation”
“Sequel to Savagery of Havertown Police”

The articles consistently referred to the incident as a “brutal beating,” and one article stated that the police officers “smashed in the face of a 17-year-old boy, roughed him up and fired shots.” Similarly, the articles referred to the Concordia incident as a “beating,” and the Pedano incident as a “shotgun shooting and assault.”

Prior to publishing the articles in question, appellants made virtually no attempt to corroborate or contradict the allegations of police brutality. Most notably, none of the officers involved in the Fischera incident were contacted. The only attempt to present a police version of it was the inclusion, in two of the articles, of accounts attributed to Haverford Police Captain Rush. The first article in the series, dated February 12, 1975, cited Captain Rush as stating that:

the injuries the boy received to his face, ... were believed to have occurred when the youth was wrestled to the ground by the policeman and struck his face, on the dirt.

A later article dated January 7, 1976 reported that:

Captain Rush said in an interview that the boy’s injuries apparently occurred when he was wrestled to the ground by a policeman who rubbed his face in the dirt.

These reports were both based on an interview of Rush by appellant Montgomery. Montgomery testified that he understood Rush’s account as being that Fischera’s injuries resulted from an accidental contact with the ground.

Appellants’ decision to report as fact the victims’ allegations of police brutality, without conducting any further investigation, was contrary to their own policy of seeking as much corroboration as possible in articles of this nature. That decision to publish mere allegations as fact was made in spite of appellant Montgomery’s own testimony that (1) Fischera “didn’t sound too swift,” (2) his previous opinion of Stickney was that he “was one of the best cops in the Haverford Township Police Department,” and (3) the fact that Fischera had reportedly apologized to officers at the hospital and admitted that he was wrong.

Appellants also reported that Fischera had suffered welts on the back of his head, which injuries were inconsistent with the police officers’ version of the incident. The report was made without the benefit of any official verification of the injuries Fischera actually sustained. Actually, Fischera suffered no such injuries but rather was wearing a helmet until the time he was placed in a police car.

Appellants also made several allegations of their own in the series of articles. In a March 19, 1975 article, they accused Haverford Township police of filing assault and battery charges against Fischera in retaliation for his allegations of brutality. In January 7, 21 and February 4, 1976 articles they accused the police of “hushing up” the Fisch-era and Pedano incidents. In relation to the Concordia incident, they reported that the officers’ suspensions were vacated as a result of “political influence.” Appellants offered no basis for any of these allegations.

Finally, the Chronicle articles consistently referred to a Police Tactical Unit in which Stickney had been a member, as being better known as the “Gestapo Squad.” Several witnesses, including appellant Lieberman, testified that pri- or to the Chronicle articles, they had never heard of such a nickname for the unit.

[1,21 For a public figure to recover in a libel action, he must establish that the complained of articles were published with “actual malice.” This requires striking a balance between the public’s interest in being informed about public officials and public affairs and the competing interests of those who have been defamed in vindicating their reputations. The standard can be satisfied “only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth.” New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974). See also Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 1965 n. 30, 80 L.Ed.2d 502 (1984).

The term “reckless disregard” cannot be fully encompassed in one infallible definition. In the present case, however, we find several factors which when considered together, present clear and convincing proof that the articles were published with a reckless disregard for the truth.

The first factor which we consider is appellants’ decision to publish the allegations against Stickney and Malseed as fact, without further investigation or corroboration. It is well settled that a publisher’s failure to investigate in itself is insufficient to establish actual malice. Hepps v. Phila delphia Newspapers, Inc., 506 Pa. 304, 321, 485 A.2d 374, 388 (1984), reversed on other grounds 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986).

reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.

St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968).

Here, however, the record establishes more than a simple failure to investigate. The allegations involved were clearly serious enough to warrant some attempt at substantiation, especially in light of appellant Montgomery’s own perception and opinion of both Fischera and Stickney, and the report that Fischera had apologized to the officers and admitted he was wrong. Appellants’ failure to investigate where they had such obvious reasons to doubt Fischera’s veracity and the accuracy of his allegations manifests a reckless disregard for the truth. See St. Amant v. Thompson, supra, 88 S.Ct. at 1326. See also, Kuhn v. Tribune-Republican Publishing Co., 637 P.2d 315, 319 (Colo.1981) and the cases cited therein.

A second factor to be considered is the unexplained distortion of Captain Rush’s account of the Fischera incident. While the presentation in the first article may contain some ambiguity, the January 7, 1976 article leads the reader to conclude that Rush believed that Fischera’s face was intentionally “rubbed” into the dirt. This is in direct conflict with appellant Montgomery’s testimony that Rush stated that the contact occurred accidentally. A jury could reasonably have inferred a reckless disregard for the truth from this distorted publication.

Third, appellants’ accusations of vindictive prosecution in the Fischera incident, of “hush ups” of the Fischera and Pedano incidents, and of “political influence” in the Concor-dia incident, without any factual basis to support them, clearly evidence a reckless disregard for the truth. Similarly, the jury could reasonably have inferred that the references to the Tactical Unit of which Stickney had been a member, as being known as a “Gestapo Squad,” was a calculated falsehood and as such evidence of actual malice. See Cantrell v. Forest City Publishing Co., 419 U.S. 245, 252-3, 95 S.Ct. 465, 470-1, 42 L.Ed.2d 419 (1974).

Review of the entire record presents “clear and convincing proof” that the articles in question were published with a reckless disregard for the truth. Thus the evidence is constitutionally sufficient to support the jury’s finding of actual malice.

Judgments affirmed.

      . Appellees, as officers in the Haverford Township Police Department, were properly deemed to be public officials subject to the actual malice standard. See Dunlap v. Philadelphia Newspapers, Inc., 301 Pa.Super. 475, 448 A.2d 6 (1982); Brophy v. Philadelphia Newspapers, Inc., 281 Pa.Super. 588, 422 A.2d 625 (1980).

      . Appellants also contend that the trial court erred in allowing the introduction of allegedly inadmissible hearsay. At trial, Ethel Kramer was permitted to testify to a conversation she overheard between her husband Bernard Kramer (deceased editor of the Chronicle) and appellant Lieberman prior to the publishing of the first article. She testified that she heard her husband warn Lieberman that the article’s reference to "Gestapo Squad” was “too risky” and that “you can’t use language like Gestapo Squad when you talk about the police.” The statements were offered to evidence Lieberman’s state of mind and not as proof of the matter asserted. Since no assertive or testimonial use was sought to be made of them, they were admissible so far as the hearsay rule is concerned. See 6 Wigmore, Evidence, §§ 1788-90 (1976); Brown, Pennsylvania Evidence, pp. 129-131 (1949).


author: TAMILIA, Judge: WIEAND, Judge,

text:
    522 A.2d 70
    COMMONWEALTH of Pennsylvania v. Randall Barry SAKSEK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 5, 1987.
    Filed March 5, 1987.

      Neis J. Taber, Assistant Public Defender, Reading, for appellant.
    Paul M. Szortyka, Assistant District Attorney, Reading, for Com., appellee.

      Before WIEAND, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

This is an appeal from judgment of sentence following appellant’s conviction in a jury trial of robbery, theft, reckless endangerment and receiving stolen goods.

Testimony indicated that a food store was robbed at gunpoint by a man identified by the store clerk as appellant/Saksek. A car registered to appellant was involved in a high-speed chase shortly after the robbery. Inside the car, which was found abandoned in a creek, were appellant’s wallet and a receipt made out to appellant for a .38 caliber revolver. Witnesses also identified appellant as an individual hitchhiking in Lebanon, Pennsylvania, the night of the robbery. Appellant testified he was drinking and could not recall what happened that day contending his car was stolen.

On appeal five issues are raised. First, appellant contends the court erred in refusing to admit evidence in two instances. Specifically rejected were a defense witness who would testify that he had previously mistaken appellant for another individual and a newspaper article which would indicate that two men were being sought in connection with the robbery.

The admission or exclusion of evidence is within the sound discretion of the trial court and, absent a clear abuse of that discretion, the decision of the court will not be disturbed. Commonwealth v. McCue, 338 Pa.Super. 117, 487 A.2d 880 (1985).

The trial court determined that the offered testimony as to appellant’s resemblance to another person was not relevant because there was no connection between this other person and the crime at issue. The newspaper article was excluded as hearsay. We find no abuse of discretion by the court in these rulings and appellant’s claim of error must be rejected.

The next allegation of error is based upon the trial court’s charge to the jury. Appellant maintains prejudicial error was committed by the court when it stated appellant had been identified by three people when, in fact, only two had positively identified appellant.

When reviewing jury charges, we must read the charge as a whole and the general effect of the charge controls. McCue, supra. In the present case, the court properly charged the jury that they were to be the finder of facts and it was their recollection which was to prevail. There is no basis for a finding of prejudice to appellant based upon the isolated remark of the court that three witnesses had identified appellant.

Next, appellant maintains that the evidence was insufficient to sustain the verdict. We must also reject this argument.

In reviewing a claim based on sufficiency of the evidence, we must review the evidence in a light most favorable to the Commonwealth, with all reasonable inferences therefrom to determine if the evidence was sufficient to sustain a verdict. Commonwealth v. Hamilton, 339 Pa.Super. 1, 488 A.2d 277 (1985); Commonwealth v. Chenet, 473 Pa. 181, 373 A.2d 1107 (1977).

The evidence presented, reviewed under the above-stated standards, was sufficient. The store clerk who testified, identified appellant as the individual who demanded money from her at gunpoint. There was testimony as to a high-speed chase, evidence of appellant’s ownership of both the vehicle found in the creek and of a weapon similar to the one used in the crime. Additional circumstantial evidence was also produced linking appellant to the crime.

Appellant’s claim that the evidence was contradictory and unable to support the verdict goes to the weight of the evidence. Such a claim requires the granting of a new trial only when the verdict is so contrary to the evidence as to shock one’s sense of justice. Commonwealth v. Datesman, 343 Pa.Super. 176, 494 A.2d 413 (1985) citing Commonwealth v. Jensch, 322 Pa.Super. 304, 469 A.2d 632 (1983). This is not such a case and appellant’s claim is without merit.

The final issue raised is a claim that appellant was improperly sentenced under 42 Pa.C.S.A. § 9712(a) contending insufficient evidence was presented at the time of sentencing to indicate the mandatory sentence was applicable. It is also argued that the Commonwealth failed to provide adequate notice that it intended to proceed under the statute.

We find this issue to also be without merit. Under the statute (42 Pa.C.S.A. § 9712(b)), notice is not required prior to conviction but reasonable notice is required of the Commonwealth’s intention to proceed under the section before sentencing. Commonwealth v. Bell, 512 Pa. 334, 516 A.2d 1172 (1986); Commonwealth v. Hess, 348 Pa.Super. 600, 502 A.2d 707 (1985); Commonwealth v. Reagan, 348 Pa.Super. 589, 502 A.2d 702 (1985). Appellant does not contend notice was not given but rather argues notice given three days prior to sentencing was unreasonable. We cannot agree, especially in light of the fact that the information specifically referred to appellant pointing a gun at the store clerk and testimony was given at trial to the same extent. If appellant was truly uninformed of the possibility of the application of the statute and was still unprepared at the sentencing hearing to challenge application of the mandatory sentencing provision, he could have sought a continuation at that time.

The sufficiency of the evidence issue is devoid of merit. The statute specifically provides that the court shall consider evidence from the trial, which in this instance would be sufficient to prove the use of a weapon.

Having found no basis to support the claims of error asserted by appellant, judgment of sentence is affirmed.

Judgment of sentence affirmed.

WIEAND, J., concurs with opinion.

WIEAND, Judge,

concurring:

I concur in the majority’s decision to affirm the judgment of sentence. I write separately only to suggest my disagreement with the majority’s general statement that “[t]he admission or exclusion of evidence is within the sound discretion of the trial court____” Although the same statement appears with increasing frequency in our opinions, I believe it is incorrect. To be sure, much must necessarily be left to the discretion of the court during the course of a trial. However, not all evidentiary rulings are discretionary with the trial court. Many rules of evidence are well established and do not permit a trial judge total discretion in his rulings. These include exclusionary rules whose enforcement cannot be ignored or violated in the trial court’s discretion. Such rules are those, inter alia, which exclude evidence which is hearsay, evidence which has been illegally obtained, evidence which is privileged, and evidence which violates the Dead Man’s Rule. In the instant case, it seems clear that the trial court’s evidentiary rulings were correct. The newspaper article contained hearsay; and the testimony that a witness had on one occasion mistaken appellant for someone else was irrelevant.

In all other respects, I join the majority’s opinion.

      . While Judge Wieand, in his Concurring Opinion, would state a rule of law in regard to trial judge discretion, I do not believe such a pronouncement would aid in the determination of issues of discretion. Trial court discretion is an underpinning of our judicial process and to define that discretion by stating that the trial court has no discretion where the law is fixed, is to state the obvious as the term discretion rules out improper application of the law. It necessarily follows that when the court misapplies the law by ignoring those fixed standards, alluded to by Judge Wieand, to the prejudice of a party, he has abused his discretion.


text:
    522 A.2d 73
    In re William ANGRY, Jr., a Minor. (Two Cases) Appeal of William ANGRY, Sr. by His Guardian Ad Litem, Joseph F. BATTLE, Esq. Appeal of Donald E. WYDRZYNSKI, Esquire, Guardian Ad Litem for Cheryl Guy ANGRY, Biological Mother (Involuntary Relinquishment of Parental Rights).
    Superior Court of Pennsylvania.
    Submitted Jan. 5, 1987.
    Filed March 5, 1987.
    Joseph F. Battle, Jr., Chester, for appellant (at 1427).
    Donald E. Wydrzynski, Media, for appellant (at 2528).

      Roger R. Ullman, Swarthmore, for appellee.
    Before WIEAND, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

This is a consolidated appeal from two Decrees terminating the parental rights of William Angry, Sr. and Cheryl Guy Angry in their child William Angry, Jr.

William Angry, Jr. was born on December 9, 1984 while the mother was an in-patient in the psychiatric unit of Crozer-Chester Medical Center in Delaware County, Pennsylvania. At the time of birth, Children and Youth Services of Delaware County was notified and informed that the child’s father had threatened to kidnap the baby from the hospital nursery. On December 13, 1984, the child was placed in the custody of Children and Youth Services. The record and proceeding in the Juvenile Court are not part of this proceeding, but the testimony at the termination hearing established that the child was adjudicated dependent on January 30, 1985 by reason of neglect and being without proper parental care or control. (N.T. 4/17/86, p. 9). Subsequent review hearings of June 4, 1985 and December 3, 1985 appear to be timely and proper. (N.T. 4/17/86, p. 34).

On December 11, 1985, petitions for termination of parental rights of both parents were filed. A hearing was conducted on April 17, 1986 with final Decrees dated April 21, 1986, entered April 30, 1986, granting the petitions. Appeals by both parties were filed and are consolidated before us.

On appeal, both parents contend that Children and Youth Services failed to prove by clear and convincing evidence that they are incapable of parenting a child at present and the incapacity will not be remedied in the future.

Children and Youth Services contended that termination was proper under 23 Pa.C.S.A. § 2511(a)(2) and (5), which provides:

§ 2511. Grounds for involuntary termination
(a) General rule. — The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

The central thrust of the arguments proposed by both parents is that the evidence presented in support of termination of parental rights was speculative, based on past behavior, and predictive in nature due to the fact that neither parent was permitted an opportunity to have custody of their son. It is their theory that a child cannot be determined to be dependent until the parents have been given custody and then failed in their parental responsibility, and secondly, that permanent removal or termination of parental rights is not permissible until the parents have been assisted with all of the available resources of the children and youth agency and community support systems. While generally true, this concept is not absolute and is inapplicable here.

The doctrine of “prognostic deprivation” was first enunciated by this Court in Matter of DeSavage, 241 Pa.Super. 174, 360 A.2d 237 (1976). In that case, it was held:

The rule of law appellants request us to announce is overly restrictive. The legislature defined “deprived child” in exceedingly broad terms precisely because it is impossible to foresee all the possible factual situations that may arise. Further, the broad definition enables the experienced juvenile court judge to apply his training and compassion to the unique facts of each case. The proposition asserted by appellants would compel the juvenile court judge to place the child in the home of the natural parents to determine whether they are able to render proper care, and ignores the possibility that if the “experiment” proves unsuccessful, the consequences to the child could be seriously detrimental or even fatal. We choose not to force the hand of the juvenile judge. The important interest of the parents are best maintained by applying the strict standard of proof in deprivation cases, not by foreclosing the juvenile court from finding deprivation on the basis of prognostic evidence.

Id., 241 Pa.Superior Ct. at 183-84, 360 A.2d at 241-42. See also In re Adoption of Michael J.C., 506 Pa. 517, 486 A.2d 371 (1984); In the Interest of Black, 273 Pa.Super. 536, 417 A.2d 1178 (1980).

The doctrine of prognostic deprivation is equally applicable to a termination proceeding under 23 Pa.C.S.A. § 2511(a)(2), (5) as it is to a dependency proceeding under the Juvenile Act, 42 Pa.C.S.A. 6301 et seq. The starting point for both types of cases is the same, that is, a judicial finding by clear and convincing evidence that state intervention is required. Juvenile Act, 42 Pa.C.S.A. § 6341(c); Adoption Act, 23 Pa.C.S.A. § 2511. To the extent that the Juvenile Act and the Adoption Act relate to state intervention in parent-child relationship, the Acts may be considered in pari materia. In Re William L., 477 Pa. 322, 383 A.2d 1228 (1978) cert. denied, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978). Involuntary termination of parental rights presupposes a finding by the Juvenile Court that the child is dependent and that, in the best interest of the child and by reasons of “clear necessity”, removal from the parental home is required. Having made that determination on the basis of prognostic evidence when the child has never been in the parents’ custody, as here, a finding of the continuing incapacity of the parents to fulfill the parental role, by clear and convincing evidence, will support involuntary termination of parental rights under section 2511. See also Adoption of Michael J.C., supra.

In a termination proceeding, the court must go one step further than in a dependency hearing under the Juvenile Act: “Any decision to remove the child from his home must be reconciled with the paramount purpose of preserving the unity of the family.” In Re Frank W.D., 315 Pa.Super. 510, 518, 462 A.2d 708, 712 (1983) citing Interest of LaRue, 244 Pa.Super. 218, 366 A.2d 1271 (1976); see 42 Pa.C.S.A. 6301(b)(1). At the point when an involuntary termination of parental rights petition is filed, the petitioner is alleging, and must prove by clear and convincing evidence, that because of the inability or refusal of the parents in the past, present and foreseeably the future, to provide proper parental care, termination of parental rights would best serve the needs and welfare of the child. The shift is away from preserving the unity of the family, which is in concert with the best interest of the child, to acknowledgement that when the unity of the family cannot be preserved, despite the efforts of private county and state assistance and support, the best interest of the child is best served by freeing the child for adoption and providing a home which meets the requirements for proper parental care. See Williams, supra. The alternative is the limbo of perpetual foster care, which is an unstable and unhappy environment for the child and an untenable position for the state. Reflecting this shift in concern is 23 Pa.C.S.A. § 2511(b) Other Considerations. “The court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child.” The official comment to the Adoption Act of 1970 states that the provision 311(2) (forerunner of § 2511(a)(2)) “centers judicial inquiry upon the welfare of the child rather than the fault of the parent.” Joint State Government Commission, Official Comment, Adoption Act (1970).

When reviewing a case of involuntary termination of parental rights, we are limited to determining whether the Decree is supported by clear and convincing competent evidence. Matter of K.L.P., 354 Pa.Super. 241, 511 A.2d 852 (1986); In re Adoption of B.K.W., 348 Pa.Super. 333, 502 A.2d 235 (1985). Absent an abuse of discretion or error of law, the Decree will not be disturbed. K.L.P., supra, citing In re Baby Boy P., 333 Pa.Super. 462, 482 A.2d 660 (1984).

In view of the above considerations, we turn to the proceedings and the matters considered by the trial court.

In support of its claims, Children and Youth Services presented testimony by a social worker and a clinical psychologist. In addition, reports from the Child Guidance and Mental Health Clinic and In-Patient Psychiatry/Crisis Service at Crozer Medical Center were considered along with written reports by the psychologist.

In determining that the best interest of the child would be best served by termination of parental rights, the court reviewed the evidence presented. It was established that both parents had a history of mental illness and were unable to establish living arrangements for themselves, having been evicted from various residences because of their erratic behavior. Attempts at assistance were thwarted by problematic and threatening behavior of both parents. Testimony from the clinical psychologist was to the effect that the parents were not capable of parenting a child at present or in the foreseeable future.

The court noted that the parents had difficulty providing for their own basic needs and it would be inconceivable that they could provide for the child’s needs. Finding that it was unlikely the situation would improve, but rather, probably worsen, the court held that it was in the best interest of the child to be given the opportunity to be adopted so as not to remain in foster care indefinitely.

Testimony elicited concerning the mother established she was in Fairmont Psychiatric Hospital in 1974; in 1977, she was in Crozer Psychiatric Hospital; in 1981, she was in Sacred Heart Psychiatric Hospital, and she was involuntarily committed to Haverford State Hospital until November 1984 when she was again transferred to Crozer Psychiatric Hospital. She had received treatment at Community Services of Human Growth, at Crum Lynne Clinic and at Crozer’s Crisis Service but did not follow through with recommended treatment. She was considered a threat to the safety of the staff and building. (N.T. 4/17/86, p. 15). The mother failed to comply with a court ordered psychological evaluation, which was required before she was permitted to have visitation with the child. In spite of repeated assistance from several community agencies, mother and father have moved and have been evicted frequently because of their violent behavior. Their whereabouts had been unknown to the C.Y.S. for much of the agency’s involvement in the case. The most recent residence visited by the agency social work was found unfit for habitation. It was heated by an old gas oven in the kitchen; it was filthy and in serious disrepair. (N.T. 4/17/86, p. 13).

As to the father’s psychological evaluation and treatment, after initial involvement in the Crum Lynne Clinic program, he refused to attend out-patient therapy. Three child visitations occurred and the therapist recommended no further visitation. Additionally, Mr. Angry became extremely hostile when the case worker and therapist attempted to comfort the crying infant. He also had unrealistic expectations concerning the infant’s ability to walk and talk at six months of age.

The evaluating psychologist, Dr. Roeder, who had direct experience with the parents, as well as exhaustively reviewing their medical and psychological records, testified that both were incapable of parenting presently or in the foreseeable future. He offered testimony that the mother had had numerous diagnoses from psychiatric hospitals and there had been sixteen psychiatric hospitalizations which he could document from the record. (N.T. 4/17/86, p. 42). In addition to a diagnosis of schizophrenia, paranoid type, she was diagnosed as schizophrenia, organic personality disorder, secondary to Huntington’s Chorea. (N.T. 4/17/86, p. 42) . The latter is a degenerative disease with a likelihood of continual decompensation. His opinion was that she could not parent even with all the available support services and her situation would only worsen in the future because of the progressive nature of her disease. (N.T. 4/17/86, p. 43) .

Mr. Angry was diagnosed as paranoid schizophrenia in partial remission. He characterized him as angry, threatening and incapable of child rearing. (N.T. 4/17/86, pp. 46, 47). Under stress, he decompensates and becomes more distraught and at times more psychiatrically disturbed, more paranoid. (N.T. 4/17/86, p. 50). In addition to the testimony, several exhibits were admitted which were detailed reports and evaluations of the parents, which provided much more extensive documentation of their problems, supporting unequivocally the findings of the trial court that the parents could not parent presently or in the foreseeable future.

In reviewing the decision under the standard of review set forth above, we find no basis to disturb the Decrees entered by the distinguished trial judge, President Judge Francis J. Catania. The evidence relied on by the court was competent and clearly established the difficulty both parents were having coping with their own problems. Assistance which was offered failed to produce any hope for a substantial change, which would be necessary to consider placing the child with the parents. There is no abuse of discretion apparent in the court’s determination that termination of parental rights is in the best interest of the child and the Decrees are thus affirmed.

At No. 1427 Philadelphia, 1986, Decree affirmed.

At No. 2528 Philadelphia, 1986, Decree affirmed.


author: WIEAND, Judge:

text:
    522 A.2d 77
    In re the ESTATE OF Ronald A. DODGE, Deceased. Appeal of Tonia K. YODER.
    Superior Court of Pennsylvania.
    Argued Nov. 18, 1986.
    Filed March 4, 1987.

      David B. Keeffe, Sayre, for appellant.
    Before WIEAND, MONTEMURO and JOHNSON, JJ.
   WIEAND, Judge:

The Register of Wills of Bradford County issued letters of administration in the Estate of Ronald A. Dodge, deceased, to Tonia K. Yoder, whose petition averred that she was the widow of the decedent. Deborah Lynn Martin, the mother and natural guardian of the decedent’s son, Ryan Shaw Dodge, filed a petition to revoke the letters which had been granted to Ms. Yoder. She alleged that Ms. Yoder had never been married to the decedent and had no interest in his estate. Following an evidentiary hearing, the Register of Wills found that a common law marriage existed between Yoder and the decedent and denied the petition to revoke the letters of administration previously issued. Martin then appealed to the Orphans’ Court of Bradford County, as permitted by 20 Pa.C.S. § 908(a). The Orphans’ Court refused a request for a hearing de novo and limited its review to the record established before the Register of Wills. The court found that the Register of Wills had abused her discretion, that Ms. Yoder’s evidence was insufficient to prove a common law marriage, and that the letters of administration should be revoked. Yoder appealed from the order revoking her appointment as administratrix.

The statute commits to the Register of Wills, in the first instance, the duty to issue letters of administration. See: 20 Pa.C.S. § 3155(b). On appeal from the Register’s action, where additional evidence is not received, judicial review is confined to a determination of whether the Register abused his or her discretion in the issuance of letters to an administrator. In re Schulz Estate, 392 Pa. 117, 123, 139 A.2d 560, 563 (1958). See also: In re Wertz’ Estate, 6 Pa.D. & C.2d 429 (York 1955). Compare: In re Padelford’s Estate, 189 Pa. 634, 42 A. 287 (1899) (appeal from Register’s grant of letters of administration brought the matter de novo before the orphans’ court).

In the instant case, we agree with the Orphans’ Court that the Register of Wills abused her discretion when she refused to revoke the letters of administration previously granted to Ms. Yoder. The Orphans’ Court concluded that Yoder’s evidence was insufficient to prove a common law marriage with the decedent. We do not necessarily dis-¿gree with the Orphans’ Court’s conclusion. Whether Yo-der will ultimately be able to prove a common law marriage for purposes of establishing a right to inherit, however, is not determinative. It is enough for present purposes that the nature of Yoder’s claim and the equivocal evidence which she offered in support of a common law marriage suggested most strongly that she was not an appropriate person to administer the decedent’s estate.

“Our courts have regarded common law marriage as a fruitful source of fraud and perjury and, thus, the law imposes a heavy burden on one who grounds a claim upon the existence of a common law marriage.” In re Cummings Estate, 330 Pa.Super. 255, 265 n. 3, 479 A.2d 537, 542-543 n. 3 (1984). “This is especially so where the lips of one of the parties to the alleged marriage have been sealed by death____” Id,., citing In re Estate of Gavula, 490 Pa. 535, 540-541, 417 A.2d 168, 171 (1980); In re Manfredi Estate, 399 Pa. 285, 292, 159 A.2d 697, 701 (1960); In re Osterling’s Estate, 323 Pa. 23, 28, 185 A. 790, 792 (1936). When an attempt is made to establish a marriage without the usual formalities, a court is required to examine the purported marriage contract with great scrutiny. In re Estate of Gavula, supra; In re Manfredi Estate, supra.

L3-5] The courts will find a valid common law marriage if there is sufficient evidence to prove that it was the parties’ intent to enter a marriage relationship in praesenti. In re Cummings Estate, supra, 330 Pa.Super. at 263, 479 A.2d at 541. Constant cohabitation of a man and woman together with a general reputation as husband and wife may raise an inference that the parties have contracted a common law marriage. In re Estate of Garges, 474 Pa. 237, 241, 378 A.2d 307, 309 (1977); In re Manfredi Estate, supra, 399 Pa. at 291, 159 A.2d at 700; In re Cummings Estate, supra, 330 Pa.Super. at 263, 479 A.2d at 542. However, an inference of marriage does not arise from cohabitation and reputation where the relationship between a man and a woman was illicit and meretricious at its inception. On the contrary, a relationship which is meretricious at its inception is presumed to continue in like manner during subsequent cohabitation. In re Stauffer Estate, 372 Pa. 537, 539, 94 A.2d 726, 727 (1953); In re Cummings Estate, supra, 330 Pa.Super. at 264, 479 A.2d at 542; Commonwealth ex rel. DeMarco v. DeMarco, 166 Pa.Super. 69, 71, 70 A.2d 384, 386 (1950).

In the instant case, the relationship between Yoder and the decedent was initially meretricious. At that time Yoder was still married to another man. She attempted to show that a change in the meretricious status had occurred following her divorce when, in December, 1982, the decedent offered her a wedding ring. Thereafter, Yoder testified, she and the decedent had referred to themselves as husband and wife. Several other witnesses also said that they had heard the decedent refer to Yoder as his “old lady” and that the two of them were reputed to be husband and wife.

This evidence, however, was sharply contradicted. It was contradicted by hospital records prepared about one month before the decedent’s death. Yoder, when admitted for the purpose of giving birth to a son, told hospital personnel that she was unmarried. When, following Dodge’s death, the funeral director sought information from the family to be placed on the certificate of death, he was told by a member of the decedent’s family in Yoder’s presence that the decedent was single. Yoder did not dissent, her only response being that she and the decedent “had lived together at the farm.” A death certificate was issued thereafter which recited that the decedent was “never married.” Finally, there was evidence that the decedent on various occasions, the last being three days before his death, had told a friend that he and Yoder did not intend to marry.

One who reviews the record of the hearing before the Register of Wills must of necessity conclude that Yoder’s evidence of a civil contract of marriage was inadequate to withstand close judicial scrutiny. Her evidence failed to show either constant cohabitation or a general reputation that she and the decedent had been married. The evidence which she offered, moreover, was sharply contradicted by statements and conduct of Yoder herself. At best, it can be said that her evidence of a common law marriage was inconclusive. Therefore, her claim that she was entitled to receive letters of administration as the widow of the decedent was not clearly established.

A determination regarding appellant’s right to receive letters of administration will not be res judicata with respect to a claim that she is the decedent’s widow for purposes of taking under the intestate laws. In re Reamer’s Estate, 331 Pa. 117, 200 A. 35 (1938); In re Boytor’s Estate, 130 Pa.Super. 591, 198 A. 484 (1938). It follows that appellant may, and most likely will, reassert the existence of a common law marriage in support of her claim to a widow’s intestate share in the decedent’s estate. Such a claim will be adverse and hostile to the interests of other, undisputed heirs of the decedent. The evidence thus far produced, as we have observed, has failed to establish with certainty that appellant, as a result of a common law agreement of marriage, is the widow of the decedent. Under these circumstances, the Orphans’ Court could properly conclude that Ms. Yoder was not a proper person to act as administratrix of the decedent’s estate. Another person, who does not have a disputed claim against the estate, might better serve in a fiduciary capacity to protect, preserve and administer the decedent’s estate for those ultimately determined to be entitled thereto. See: In re Schulz Estate, supra; In re Rafferty Estate, 377 Pa. 304, 105 A.2d 147 (1954); Sharpless’ Estate, 209 Pa. 69, 57 A. 1128 (1904).

Order affirmed.

      . There was also an offer to prove that Yoder had represented herself to be a single woman when she applied for public assistance and that she had never advised the Department of Public Welfare that her status had changed. For reasons which we are unable to comprehend, the Register of Wills refused to receive or consider evidence of admissions made by Yoder in her application for public assistance.