author: KELLY, Judge:

text:
    622 A.2d 954
    In the Interest of D.S. Appeal of D.S., Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 1, 1992.
    Filed March 23, 1993.

      Bradley S. Bridge, Philadelphia, for appellant.
    Joan Weiner, Asst. Dist. Atty., Philadelphia, for Com., participating party.
    Before CAVANAUGH, MCEWEN and KELLY, JJ.
   KELLY, Judge:

In this appeal, we are called upon to determiné whether a juvenile resident of “Cumberland House” was properly adjudicated guilty of aggravated assault under 18 Pa.C.S.A. § 2702(a)(5) for punching a roommate once in the jaw. We hold that there was insufficient evidence to sustain appellant’s conviction of aggravated assault under 18 Pa.C.S.A. § 2702(a)(5). Accordingly, we vacate the adjudication of delinquency based upon aggravated assault.

FACTS AND PROCEDURAL HISTORY

The facts and procedural history of this case may be summarized as follows. Appellant and T.T. both lived at “Cumberland House.” At approximately 7:30 p.m., appellant walked downstairs to the living room, approached T.T., who was watching television, and punched T.T. once in the jaw, knocking him to the ground. T.T. was taken to a medical center the following day, and his jaw was wired shut for the next four weeks.

Appellant was charged with simple assault, aggravated assault, and recklessly endangering another person. At the bench trial, after the parties stipulated to the aforementioned facts, appellant demurred to the charges of aggravated assault and recklessly endangering another person.

Before ruling on appellant’s demurrer, the court asked if Cumberland House was a school for the purpose of satisfying 18 Pa.C.S.A. § 2702(a)(5). Defense counsel stated that, to the best of her knowledge, Cumberland House was not a school and did not fall within the purview of the statute. The Commonwealth requested that the court take judicial notice that Cumberland House was a school. However, unsatisfied that it was a school, the court called a recess to allow the attorneys for both sides to ascertain Cumberland House’s status. The court noted that if appellant could be convicted under 18 Pa.C.S.A. § 2702(a)(5), the parties would not have to argue, nor the court decide, whether appellant’s one punch to the victim’s jaw was an aggravated assault pursuant to 18 Pa.C.S.A. § 2702(a)(1).

After trial reconvened, the Commonwealth requested the court to take judicial notice that Cumberland House was a school, because it was accredited. The court took judicial notice that it was a school, denied appellant’s demurrer to aggravated assault, adjudicated appellant guilty under 18 Pa.C.S.A. § 2702(a)(5) and committed him to the Department of Public Welfare for placement. After appellant timely appealed, the trial court, in its opinion, requested that we remand for a hearing to determine whether Cumberland House is an accredited school.

On appeal, appellant presents the following two issues for our consideration:

1. MUST NOT THE JUVENILE APPELLANT’S AGGRAVATED ASSAULT ADJUDICATION BE REVERSED WHERE AN ELEMENT OF THE OFFENSE WAS NEVER ESTABLISHED; WHERE THE ADJUDICATING COURT TOOK “JUDICIAL NOTICE” OF A DISPUTED FACT OF WHICH ALL PARTIES ACKNOWLEDGED PERSONAL IGNORANCE, AND WHERE THERE IS NO STATEMENT ON THE RECORD BY THE PROSECUTOR OF HOW, WHERE, WHEN, FROM WHOM, OR EVEN WHETHER SHE HAD “ASCERTAINED” THE FACT IN ISSUE DURING A BRIEF RECESS?
2. DID NOT THE EVIDENCE ESTABLISH THAT JUVENILE APPELLANT HAD COMMITTED NO MORE THAN A SIMPLE ASSAULT WHERE AT 7:30 P.M. HE PUNCHED ANOTHER YOUNG MAN ONE TIME IN THE JAW IN THE LIVING ROOM OF CUMBERLAND HOUSE, WHERE THE TWO RESIDED?

Appellant’s Brief at 2.

FACTUAL FINDING OF CUMBERLAND HOUSE AS A SCHOOL

Appellant first argues that the trial court abused its discretion in finding that Cumberland House is a school. He maintains that whether Cumberland House is a school is not a matter of common knowledge, and therefore, is not capable of judicial notice. Moreover, appellant argues, there is no evidence of record to support a finding that Cumberland House is a school for purposes of 18 Pa.C.S.A. § 2702(a)(5).

The Commonwealth argues that the trial court could have taken judicial notice of a fact which is not common knowledge, as long as the fact is capable of accurate and ready verification. The Commonwealth additionally contends that appellant had ample opportunity to rebut the evidence consisting of judicial notice. We cannot agree.

A court may take judicial notice of an indisputable adjudicative fact. Commonwealth ex rel. Duff v. Keenan, 347 Pa. 574, 33 A.2d 244 (1943). A fact is considered indisputable if it “is so well established as to be a matter of common knowledge.” Albert Appeal, 372 Pa. 13, 20, 92 A.2d 663, 666 (1952). See also Haber v. Monroe County Vo-Tech. School, 296 Pa.Super. 54, 60, 442 A.2d 292, 295-96 (1982), quoting Petro v. Kennedy Tp. Bd. Commissioners, 49 Pa.Cmwlth. 305, 311, 411 A.2d 849, 852 (1980) (judicial notice is appropriate if fact is so well-known as not to require supporting evidence). Conversely, a court cannot take judicial notice of a disputed question of fact. Haber, supra. By taking judicial notice of a fact so commonly known, the court avoids the needless formality of introducing evidence to prove an incontestable issue. Sheppard v. Old Heritage Mutual Ins. Co., 492 Pa. 581, 425 A.2d 304 (1980); Haber, supra.

Judicial notice itself does not necessarily establish a fact. Judicial notice of a fact, when correctly taken, constitutes evidence, which like any evidence, may be rebutted. See Commonwealth v. Covert, 322 Pa.Super. 192, 198, 469 A.2d 248, 251 (1983) (“judicial notice should not serve to deny the opposing party the chance to disprove the fact sought to be judicially noticed”). If the evidence derived from judicial notice remains unrebutted, it may support a finding of fact.

The careful use of judicial notice is especially important in criminal cases. A court may judicially notice an indisputable fact even though it establishes an element of a crime. See, e.g., Commonwealth v. Bigelow, 250 Pa.Super. 330, 333 n. 2, 378 A.2d 961, 963 n. 2 (1977), aff'd, 484 Pa. 476, 399 A.2d 392 (1979) (court could have taken judicial notice that Philadelphia is a city of the first class in prosecution for carrying a firearm on a public street in a city of the first class); Commonwealth v. Morgan, 265 Pa.Super. 225, 401 A.2d 1182 (1979) (dicta) (in determining whether an element of possessing an instrument of crime existed, court may take judicial notice that a gun is commonly used for criminal purposes, but may not be able to take judicial notice that certain other instruments are commonly used for criminal purposes). However, when the “fact” is not so well-known within the community as to be indisputable, the court cannot judicially notice it to satisfy an element of a crime. See Commonwealth v. Brose, 412 Pa. 276, 194 A.2d 322 (1963) (whether radar signs were posted on side of road on date appellant was speeding was a fact question to be supported by evidence adduced by the Commonwealth; judicial notice was improper); see also Commonwealth v. Brown, 312 Pa.Super. 383, 458 A.2d 1012 (1983) (judicial notice of situs of milepost 290 on Route 22 was improper because it was not a matter of common knowledge).

Some jurisdictions apply a second basis for allowing judicial notice. For example, Rule 201(b) of the Federal Rules of Evidence provides:

(b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be called in question.

See also Fortunata Giudice and C. William Kraft, The Presently Expanding Concept of Judicial Notice, supra at 532-33 n. 22, quoting Uniform Rule of Evidence 9 (“Facts Which Must or May Be Judicially Noticed”); McCormick on Evidence, supra § 330 (“Facts Capable of Certain Verification”). Pennsylvania courts have not yet officially adopted this second approach. Commonwealth v. Brown, supra at 385 n. 2., 458 A.2d at 1013 n. 2.

Although Pennsylvania courts have not applied a “capable of verification” standard, judicial notice may be employed in somewhat similar, limited circumstances. By statute, a trial court shall treat as evidence a factual proposition that is supported by reference to an appropriate governmental publication. See 45 Pa.C.S.A. § 506 (“The contents of the code, of the permanent supplement thereto, and of the bulletin, shall be judicially noticed.”); Commonwealth v. Denny, 372 Pa.Super. 317, 322-23, 539 A.2d 814, 816 (1987) (to prosecute for speeding violation, Commonwealth must show not only certification of accuracy, but also that the testing facility has been granted official testing status by the Department of Transportation; proof of official testing status may be shown by a letter under seal from the D.O.T. or by “a citation to the Pennsylvania Bulletin which lists the station as an official testing station”). Cf. Commonwealth v. McGinnis, 511 Pa. 520, 515 A.2d 847 (1986) (error for court to take judicial notice that modified breathalizer had been approved by Department of Health where uncontroverted evidence was that instrument had not been approved).

In Commonwealth v. Kittleberger, 420 Pa.Super. 104, 616 A.2d 1 (1992), we recently held that, for the trial court to take judicial notice that a certain type of radar gun was approved by the Pennsylvania Department of Transportation, the Commonwealth must refer to the published approval in the Pennsylvania Bulletin. We explained:

In sustaining its burden of proof, the Commonwealth need not produce a certificate from PennDOT which expressly indicates approval of a particular speed timing device. Rather, the legislature has considerably lessened the Commonwealth’s evidentiary burden of enabling the courts to take judicial notice of the fact that the device has been approved by PennDOT, provided that the approval has been published in the Pennsylvania Bulletin. See 45 Pa.C.S.A. § 506 (providing for judicial notice) and §§ 724-725 (requiring Commonwealth agency regulations to be published in the Pennsylvania Bulletin); 75 Pa.C.S.A. § 3368(d) (requiring PennDOT to classify and approve speed timing devices by regulation).
As applied here, the certified record identified the radar gun used to measure appellant’s speed as a Falcon. N.T. 7/1/91 at 4-5. PennDOT has approved Falcon radar guns for use by the Pennsylvania State Police. 19 Pa.Bull. No. 50, Part I, at 5346 (December 16, 1989). Consequently, the Commonwealth could have established the requisite element of approval in this case merely by asking the lower court to take judicial notice of the fact that the department’s approval of the Falcon radar gun was published in the Pennsylvania Bulletin. 45 Pa.C.S.A. § 506.

Id. at 109, 616 A.2d at 3. In Kittleberger, because the Commonwealth did not request the trial court to take judicial notice of the fact that the approval appeared in the Pennsylvania Bulletin, an element of the offense was not established, even though the approval was actually published. Id. at 108-10, 114-15, 616 A.2d at 3, 6. Moreover, this Court was constrained from taking judicial notice of something that was neither noticed below nor supported by evidence. Id. at 114-15, 616 A.2d at 6.

The mere capability of ready and accurate verification is an insufficient basis for judicial notice. The record must disclose at least some reference to the authoritative source for a court to take judicial notice pursuant to 45 Pa.C.S.A. § 506. Commonwealth v. Kittleberger, supra; Commonwealth v. Denny, supra.

“A court may not support an adjudication of guilt with evidence not part of the trial record.” Commonwealth v. Wasiuta, 280 Pa.Super. 256, 259, 421 A.2d 710, 711 (1980). See also Commonwealth v. Martell, 307 Pa.Super. 1, 5, 452 A.2d 873, 875 (1982), citing id. Accordingly, in reviewing a trial court decision for sufficient evidence, an appellate court must be provided adequate indicia of what evidence the fact finder considered. See Alko Exp. Lines v. Pennsylvania Public Utility Com., 152 Pa.Super. 27, 36, 30 A.2d 440, 444 (1943). See also Wells v. Pittsburgh, Board of Ed., 31 Pa. Cmwlth. 1, 374 A.2d 1009. Therefore, a criminal conviction cannot stand based upon judicial notice of a disputable fact which otherwise lacks evidentiary support. Commonwealth v. Brose, supra; Commonwealth v. Brown, supra. Of course, the prosecutor’s mere recitation of the Commonwealth’s version of the facts does not constitute competent evidence. Commonwealth v. Royster, 524 Pa. 333, 339, 572 A.2d 683, 686 (1990).

Thus, in deciding whether a trial court erred in taking judicial notice, we must determine whether the notice was of an indisputable fact, i.e., one which is so commonly known that it need not be supported with evidence, or one which, according to statute, is noticeable because there is recorded reference to an appropriate governmental publication, such as the Pennsylvania Bulletin. If the finding of fact is wrongly based upon judicial notice, the appellate court must then determine whether the finding was otherwise supported by evidence of record.,

Pursuant to such review, we must determine whether the “fact” that Cumberland House is a school was common knowledge, whether the record includes reference to a government publication which shows that Cumberland House is certified as a school, or whether there was sufficient evidence of record to support a finding that it was a school. At trial, the court detoured the discussion of whether appellant was guilty of aggravated assault pursuant to 18 Pa.C.S.A. § 2702(a)(1) to whether appellant committed an assault under subsection (a)(5). The prosecutor readily requested the court to take judicial notice that Cumberland House was a school. This discussion followed:

THE COURT: I don’t know that it is.
If you can get me some indication that it is, I’ll certainly take notice to the fact.
Is Cumberland House a licensed school, do you know, a CBS?
MS. NUROFF: I don’t know, Your Honor.
THE COURT: What?
MS. NUROFF: I don’t know, Your Honor.
THE COURT: I don’t know, either.
MS. NUROFF: I know that Lower Kensington is, so I would assume that they all operate the same way.
THE COURT: Well, I can’t take judicial notice of an assumption, but I’ll take a short recess.
MS. HARLEY: Thank you.
THE COURT: And, if it is, of course, I will overrule the demurrer on that basis.
We won’t get into the one-punch situation.
(A short recess was taken.)
THE COURT: Alright. My understanding is that the Commonwealth has ascertained that Cumberland House is an accredited school.
I grant the Commonwealth leave to open its case, request [t]he Court to take judicial notice of the fact.
MS. McCARTNEY: Judge, I’m going to object to that.
THE COURT: Well, you can object all you want.
MS. HARLEY: Your Honor, I would request that you take judicial notice that the school is accredited, and, therefore, it comes under the meaning of the statute under Subsection 5.
THE COURT: Notice is taken.
MS. McCARTNEY: I want my objection noted, for the record.
THE COURT: It is.
What do you think she’s doing there?
Alright. Your demurrer’s overruled, on that basis.
MS. McCARTNEY: Your Honor, the defense would rest.

N.T. January 7, 1992 at 8-10.

The foregoing discourse indicates that Cumberland House was not so obviously a school. None of the attorneys even knew whether it was a school. Nor did the trial court know. Therefore, whether it was a school was not common knowledge. Accordingly, judicial notice could not be based upon common knowledge.

Moreover, the Commonwealth opened its case and moved the court to take judicial notice that Cumberland House was a school, without ever referring to an authoritative governmental publication which indicated such certification. Similarly, the trial court judicially noticed the “fact” without mentioning an authoritative source.

Without some reference to a publication which confirmed a governmental agency’s certification of Cumberland House as a “school,” the trial court was not empowered to take judicial notice pursuant to 45 Pa.C.S.A. § 506. Commonwealth v. Kittleberger, supra; Commonwealth v. Denny, supra. Therefore, the trial court erred in taking judicial notice on this basis as well.

Finally, the record does not disclose the basis on which the court found that Cumberland House was a school. Absent some evidentiary foundation, the court erred in finding that it was a school. In our review for sufficient evidence, therefore, we cannot treat as a fact that the assault took place in a school.

SUFFICIENCY OF THE EVIDENCE: 18 PA.C.S.A.

§ 2702(a)(5) (AGGRAVATED ASSAULT FOR ASSAULTING TEACHER, SCHOOL EMPLOYEE, OR STUDENT ACTING IN SPECIFIED ROLE)

Appellant also argues that there was insufficient evidence for the trial court to find him guilty under 18 Pa.C.S.A. § 2702(a)(5). We agree.

Our standard of reviewing a verdict for sufficient evidence is as follows. “On appeal, we must examine the evidence in the light most favorable to the Commonwealth, drawing all reasonable inferences therefrom.” Commonwealth v. Gerulis, 420 Pa.Super. 266, 273, 616 A.2d 686, 689 (1992), quoting Commonwealth v. Berkowitz, 415 Pa.Super. 505, 515, 609 A.2d 1338, 1343 (1992), allocatur granted, 531 Pa. 650, 613 A.2d 556 (1992). The evidence is sufficient to support a verdict if the fact finder “could have reasonably determined from the evidence that all of the necessary elements of the crime were established.” Gerulis, supra, quoting Berkowitz, supra.

The criminal provision at issue is 18 Pa.C.S.A. § 2702(a)(5): § 2702. Aggravated Assault

(a) Offense defined. — A person is guilty of aggravated assault if he:

(5) attempts to cause or intentionally or knowingly causes bodily injury to a teaching staff member, school board member, other employee or student of any elementary or secondary publicly-funded educational institution, any elementary or secondary private school licensed by the Department of Education or any elementary or secondary parochial school while acting in the scope of his or her employment or because of his or her employment relationship to the school.

This Court has appended the words “or while acting in his or her role as a student” to the end of this provision to effectuate the statutory purpose. Commonwealth v. Scott, 376 Pa.Super. 416, 546 A.2d 96 (1988), allocatur denied, 522 Pa. 612, 563 A.2d 497 (1989). Therefore, to be convicted under this subsection, a defendant must have assaulted a victim while that victim was acting in the scope of his or her employment relationship to the school, 18 Pa.C.S.A. § 2702(a)(5), or “in his or her role as a student.” Scott, supra.

In Commonwealth v. Scott, supra, we did not reach the question of whether an assault must occur on school grounds for it to constitute an aggravated assault under section 2702(a)(5). The issue is now ripe for our disposition.

Section 2702(a)(5) focuses on the status of the victim: The only reference to schools is part of a description of the status of the victim, who must be an employee acting in the scope of his or her employment, 18 Pa.C.S.A. § 2702(a)(5), or a student while acting in his or her role as a student, Commonwealth v. Scott, supra at 424, 546 A.2d at 100. The statute itself provides no geographical limit.

In addition to the language of section 2702(a)(5), the texts of the two other statutes which were enacted along with the instant statute further indicate that no geographical limitation was contemplated for the aggravated assault offense. For example, in one companion statute, the same legislature expressly made location an element of the crime of possession of weapons on school property:

§ 912. Possession of weapon on school property.
(b) Offense defined. — A person commits a misdemeanor of the first degree if he possesses a weapon in the buildings of, on the grounds of, or in any conveyance providing transportation to or from any elementary or secondary publicly-funded educational institution, any elementary or secondary private school licensed by the Department of Education or any elementary or secondary parochial school.

18 Pa.C.S.A. § 912(b). Moreover, in another part of the Act of October 16, 1980, P.L. 978 (the “1980 Act”), the legislature added to the anti-obscenity statute, making illegal the display of any obscene explicit sexual materials “... in any business or commercial establishment where minors, as a part of the general public or otherwise, are or will probably be exposed to view all or any part of such materials.” 18 Pa.C.S.A. § 5903(a)(1).

While the companion portions of the 1980 Act each specified geographical location as an element of the offense, the aggravated assault provision did not. This distinction among simultaneously enacted statutes further evidences the legislative intent to protect certain citizens while acting in specific roles, regardless of the situs of an assault. Therefore, the location of the assault is not an element of 18 Pa.C.S.A. § 2702(a)(5).

Although the situs of an assault is not an element of this statute, the location of an assault is probative to the dispositive issue of whether the victim was acting in his or her role as an employee or student. The fact finder should consider all relevant circumstances, including the situs of an attack, in determining whether the victim of an assault was acting in one of the specific roles which our General Assembly has granted special protection. Because the situs of the assault is so interwoven with the status of the victim, the finding of fact that a person was assaulted at a school must be properly supported.

As we held above, the trial court erred in finding that the situs of the assault, Cumberland House, was a school. We must now review the entire trial transcript for any other evidence which may support a finding of guilt under section 2702(a)(5). At appellant’s trial for simple assault, aggravated assault, and recklessly endangering another person, the Commonwealth and appellant stipulated as follows:

MS. HARLEY: Your Honor, if I may, if the Commonwealth were to proceed with live testimony today, the Commonwealth would first call [T.T.], fifteen years old.
Mr. [T.] would state that, back on December 10 of 1991, he was living at Cumberland House, C-U-M-B-E-R-L-AN-D, which is located at 248 West Girard Avenue, here in the city and county of Philadelphia.
He would state that, at that time, defendant, Mr. [S.], was, also, living at Cumberland House.
He would state that, at, approximately, 7:30 p.m., while he was in the living room, watching television, the defendant, Mr. [S.] came into the room. The lights were turned off.
The defendant approached the complaining witness, Mr. [T.], and punched him, one time, with the defendant’s right fist in the complaining witness’ jaw, knocking the complaining witness to the ground.
At that time, assistants came and separated the defendant from the complaining witness.
Mr. [T.] would state that he was taken to Girard Medical Center, the following day; that being, December 11 of 1991.
THE COURT: Taken where?
MS. HARLEY: Girard Medical Center, located at 8th and Girard Streets.
THE COURT: Girard Avenue.
MS. HARLEY: Girard Avenue — excuse me, Your Hon- or — because, when he awakened, on December 11, his face was swollen and sore, and he could not open his mouth.
He would state that he, then, had an operation when he awakened from that. His jaw and entire mouth [were] wired closed.
He would state that the — his—jaw was wired closed for, approximately, four weeks, at which point, he returned to a private doctor, who removed the wires.
Your Honor, additionally, the complaining witness would state that he made no attempt to strike the defendant and said nothing to him.
Additionally, Your Honor, there would have been a stipulation, by and between counsel, as to the medical records.
I would ask that they be marked, Commonwealth Exhibit, C-l, and moved into evidence.
I’d just, if I can.
Counsel has seen them.
(Medical records were marked for identification as, Commonwealth’s Exhibit, C-l).
MS. HARLEY: And, Your Honor, I’d mark—
THE COURT: Pass them up.
MS. HARLEY: —off for you, in which it states that the complaint—
THE COURT: I’ll read it.
MS. HARLEY: Thanks.
(Handed to The Court.)
MS. HARLEY: And, Your Honor, I’ll just note, for the record, that the treating physician was a Dr. Branconaro, B-R-A-N-C-O-N-A-R-O.
THE COURT: Alright. I’m being referred to the Operating Room Record Chart, copy, dated, 12/13/91.
MS. HARLEY: Your Honor, is that accepted in evidence?
THE COURT: You can keep that.
MS. HARLEY: Thank you.
(Commonwealth’s Exhibit, C-l, was admitted into evidence.)
MS. HARLEY: Your Honor, with that testimony, Commonwealth would rest.
MS. McCARTNEY: Judge, the defense would demur to the charges of Aggravated Assault and REAP.

N.T. January 7, 1992 at 3-6.

The trial evidence did not address whether the victim was acting in his role as a student. There was no valid evidence that T.T. was participating in any school related event or that he was even in a school. To the contrary, the stipulation merely established that T.T. was watching television at 7:30 p.m. in the living quarters of Cumberland House. The Commonwealth did not prove that the recipient of the punch was acting in his role as a student. Therefore, appellant is not guilty of aggravated assault under 18 Pa.C.S.A. § 2702(a)(5). Commonwealth v. Scott, supra.

SUFFICIENCY OF THE EVIDENCE: 18 PA.C.S.A.

§ 2702(a)(1) (AGGRAVATED ASSAULT FOR INFLICTING OR ATTEMPTING TO INFLICT SERIOUS BODILY INJURY)

Finally, we must address the Commonwealth’s contention that this Court can either adjudicate appellant delinquent of aggravated assault under section 2702(a)(1) or remand to the trial court for a retrial on that charge. The trial court never decided whether appellant was guilty of aggravated assault for attempting to inflict or actually causing serious bodily injury. 18 Pa.C.S.A. § 2702(a)(1). As stated above, although the Commonwealth may have originally sought to prosecute appellant on that charge, the trial court changed its focus to the 2702(a)(5) issue, explaining that, “we won’t get into the one-punch situation.” N.T. January 7, 1992 at 9. Despite reopening its case for judicial notice purposes, the Commonwealth failed to request an adjudication under section 2702(a)(1). The Commonwealth’s failure to seek an adjudication of aggravated assault under that theory constituted waiver. Accordingly, we cannot grant the Commonwealth’s request for a retrial on charges under section 2702(a)(1). Moreover, the Superior Court is neither empowered nor inclined to “sit as a trial court and try the case de novo.” Commonwealth v. Kittleberger, supra 420 Pa.Super. at 114, 616 A.2d at 6. Therefore, we cannot determine for the first time on appeal whether appellant has committed an aggravated assault under 18 Pa.C.S.A. § 2702(a)(1) where the Commonwealth did not seek an adjudication thereunder and the trial court did not decide the issue.

CONCLUSION

The trial court in this case abused its discretion in concluding that Cumberland House is a school. Cumberland House’s status as a school was not common knowledge, and neither the Commonwealth, as proponent of judicial notice, nor the court, placed on the record reference to an authoritative governmental publication showing state certification of Cumberland House as a school. 45 Pa.C.S.A. § 506. Accordingly, judicial notice was inappropriate. Moreover, there was no trial evidence to support such a finding.

The trial court further erred in concluding that appellant is guilty of aggravated assault pursuant to 18 Pa.C.S.A. § 2702(a)(5). There was no evidence that the recipient of appellant’s punch was acting in his role as a student.

Finally, the Commonwealth’s failure to request an adjudication under 18 Pa.C.S.A. § 2702(a)(1) constituted waiver. Accordingly, we can neither sit as a trial court and determine whether appellant committed aggravated assault pursuant to section 2702(a)(1) nor remand for a retrial.

We must reverse the adjudication of delinquency for aggravated assault, and appellant’s record should so reflect our ruling. However, there was sufficient evidence to find appellant delinquent for simple assault. Accordingly, we reverse the adjudication of delinquency based upon a violation of section 2702(a)(5) and affirm the adjudication of delinquency based upon a violation of section 2701(a)(1) for simple assault.

Order reversed in part and affirmed in part. Jurisdiction relinquished.

CAVANAUGH, J., concurs in the result.

      . § 2702 Aggravated Assault
      (a) offense defined. — A person is guilty of aggravated assault if he:
      (5) attempts to cause or intentionally or knowingly causes bodily injury to a teaching staff member, school board member, other employee or student of any elementary or secondary publicly-funded educational institution, any elementary or secondary private school licensed by the Department of Education or any elementary or secondary parochial school while acting in the scope of his or her employment or because of his or her employment relationship to the school.

      . The court later granted appellant's demurrer to recklessly endangering another person.

      . Appellant concedes that his actions constituted simple assault, 18 Pa.C.S.A. § 2701(a). Accordingly, he seeks a reversal of the adjudication of aggravated assault; he does not seek a reversal of adjudication of delinquency, which is still grounded upon the simple assault.

      . "Adjudicative facts" are "factual matters concerning the parties to an administrative proceeding____” Black’s Law Dictionary 39 (5th ed. 1979).
      Another species of facts figures prominently in discussions of judicial notice which, to continue to employ the terminology coined by Professor K.C. Davis, are denominated “legislative” facts. Judicial notice of these facts occurs when a judge is faced with the task of creating law, by deciding upon the constitutional validity of a statute, or the interpretation of a statute, or the extension or restriction of a common law rule, upon grounds of policy, and the policy is thought to hinge upon social, economic, political or scientific facts.
      McCormick on Evidence, § 328 at 921 (3rd ed. Handbook Series 1984) (footnotes omitted). The difference between adjudicative and legislative facts may be further described as follows:
      The facts of which courts take judicial notice are sometimes classified as either adjudicative or legislative. Adjudicative facts are facts about the particular parties to the controversy, their activities, their property, and their interests. Facts which help answer who did what, when, where, why, how, and with what motive and intent are all adjudicative. It is to these facts that the jury in a jury trial, or the judge in a non-jury trial, applies the existing law. Legislative facts, on the other hand, are used exclusively by the judge when he is developing law and policy. They are used not to discover the facts to which the law will be applied, but rather to discover and develop the law itself. Thus, when the judge is interpreting a statute, or ruling on its constitutionality, or creating new law to bridge gaps in existing doctrines, the facts upon which he relies are termed legislative facts.
      Fortunata Giudice and C. William Kraft, The Presently Expanding Concept of Judicial Notice, 13 Villanova L.Rev. 528, 533 (1968) (footnotes omitted). Pursuant to these principles, the fact which the trial court judicially noticed is an adjudicative fact.

      . In its entirety, Rule 201 provides:
      RULE 201. JUDICIAL NOTICE OF ADJUDICATIVE FACTS
      (a) Scope of Rule. This rule governs only judicial notice of adjudicative facts.
      (b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be called in question.
      (c) When Discretionary. A court may take judicial notice, whether requested or not.
      (d) When Mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.
      (e) Opportunity to Be Heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
      (f) Time of Taking Notice. Judicial notice may be taken at any stage of the proceedings.
      (g) Instructing Jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

      . Ms. Nuroff was not identified as a witness at trial. In his brief, appellant stated that she was a school board representative.

      . Because judicial notice was improper, the burden never shifted to " appellant to rebut the fact judicially noticed.

      . We note that we find no error in the trial court's allowing the Commonwealth to reopen its case to prove what it and the Commonwealth viewed to be an element of the crime (that the situs of the assault was a school). See Commonwealth v. Tharp, 525 Pa. 94, 575 A.2d 557 (1990); Commonwealth v. Mathis, 317 Pa.Super. 226, 463 A.2d 1167 (1983). Likewise, in its reopened case, the Commonwealth is permitted to move the court to take judicial notice of an undisputed fact.

      . In Commonwealth v. Scott, supra, this Court discussed at length the legislative history and intent of the legislature in adding subsection (a)(5). This Court noted that “the statute in question is susceptible to varying interpretations....” Id. at 424, 546 A.2d at 100. In Scott, the appellant argued that the statute did not apply to him because the victim of his assault, a student, was not employed by or in any employment relationship with the school. We found the appellant’s interpretation to be strained and after an examination of the legislative history, held that the legislature intended to protect students even if they were not acting in an employment capacity. Id. at 421, 546 A.2d at 99. We explained that when the legislature included the word "student," it failed to move the modifying phrase "while acting ...” to its proper position, causing it to improperly modify “students.” Utilizing the rule enunciated by our Supreme Court in Commonwealth v. Fisher, 485 Pa. 8, 13, 400 A.2d 1284, 1287 (1979), allowing judicial addition of a phrase to effectuate the intent of the legislature, this Court concluded that § 2702(a)(5) was meant to protect a student from an assault "while [he or she is] acting in his or her role as a student.” In addition to “while [he or she is] acting in the scope of his or her employment,” as the statute originally stated. Id. at 424, 546 A.2d at 100.” [G]iving effect to each and every word of the statute, we therefore assume that our legislature intended to protect all employees of the school district as well as all students.” Id.

      . In Scott, appellant had failed to preserve this issue for appellate review.

      . Subsection (a)(5) of the aggravated assault statute was enacted along with two other pieces of legislation. See Act of October 16, 1980, P.L. 978 [hereinafter "1980 Act”]. The first part of the act sought to curb “the tidal wave of violence which is sweeping our schools,” and the second part empowered district attorneys to arrest and prosecute violators of the Anti-Obscenity Law. Pa.Legislative Journal, Senate, 2081 (September 30, 1980). The instant case involves the first part of the act, which may be further subdivided into two separate statutes: 18 Pa.C.S.A. § 2702(a)(5), the statute at issue, and 18 Pa.C.S.A. § 912, which made an offense the carrying of a weapon on school grounds.

        . This evidence established that appellant at least committed a simple assault. 18 Pa.C.S.A. § 2701(a)(1). Appellant does not contend otherwise.

      . Research of 18 Pa.C.S.A. § 2702(a)(5) and its legislative history leads us to question the breadth of this criminal statute’s applicability. Specifically, we see difficulty in discerning whether this statute would render a student-on-student incident which would otherwise constitute a simple assault under 18 Pa.C.S.A. § 2701(a)(1) an aggravated assault. Recognizing that this specific question is not before the court, we can only call to the attention of the legislature the apparent discrepancy. Cf. Commonwealth v. Scott, supra 376 Pa.Super. at 425, 546 A.2d at 101 (Del Sole, J., dissenting) (“Since [18 Pa.C.S.A. § 2702(a)(5)] is not clearly drawn, I think the best thing that this Court can do is suggest that the General Assembly redraft it in order that it might serve the laudable purpose which its sponsors intended.”).
      On the one hand, the statute applies to a "person” who commits the assault. 18 Pa.C.S.A. § 2702(a). However, the thrust of the legislative history suggests that the legislature sought to make aggravated only a new brand of brazen assaults. For example, Representative Richardson explained:
      Mr. Speaker, this is a vety simple amendment. What it does is it adds the word "student." In the school district of Philadelphia in the sixth district where I live and where my legislative district encompasses, we have a serious problem concerning the fact that a number of people who come from outside the school into the school may not only inflict harm upon any school board employee or a teacher or someone who works for the board would also inflict that same harm upon a student who enters inside the building who is a student of the school. We feel there needs to be some protection to protect the student inside the classroom who attends that school so that he is protected from being beaten upon also inside the school, and I, therefore, Mr. Speaker, ask for an affirmative vote on this amendment.
      Pa.Legislative Journal, House, 422 (February 13, 1980) (emphasis added). The House adopted the amendment. Id.

      The next recorded legislative history arises from the Senate floor. Senator O'Pake stated:
      In recent years, school discipline has evolved from teachers confiscating chewing gum, to relieving their students of knives and guns. School violence is not just a problem in Pennsylvania’s inner-cities, it strikes just as often in our suburban and rural schools; and it is reaching epidemic proportions. In public hearings around the State last year, the Senate Committee on Judiciary heard testimony of teachers suffering serious injuries at the hands of violent students. In the western part of the State, a teacher ordered an unruly student to her office and as a result, the teacher was viciously pushed against the wall breaking her pelvis. In the eastern part of the State, a teacher disciplined a student in a corridor; and the student came back later with a knife and chain and attacked the teacher.
      * # *
      Recent statistics from the Philadelphia Board of Education indicate that the problem is growing steadily. In that district alone, there were 424 assaults on teachers reported last year, an increase of seven per cent, and reported assaults on other students numbered 434, a twenty-six per cent increase. Over 100 murders are committed each year in the nation’s schools.
      Pa.Legislative Journal, Senate, 2082 (September 30, 1980). See also Pa.Legislative Journal, House, 2460 (October 1, 1980) (remarks of Representative O’Donnell) ("... I think we are all concerned about the increasing level of violence in the schools, especially directed at teachers. ...”).

        The legislative intent behind the 1980 legislation, apparently, was to deter a new, brazen brand of violence in schools. The lawmakers were concerned about assaults on teachers by students, about outsiders breaching the schoolhouse walls and attacking students and teachers, and about students coming to school with weaponry inappropriate for legitimate classroom learning. The legislature sought to preserve a feeling of security in teachers from would-be assaulters, in all who learn and work in school from outside wanderers, and in the students and teachers, from armed attacks from the especially violent who resort to knives, nun-chucks, firearms, and other implements "capable of inflicting serious bodily injury.” 18 Pa.C.S.A. § 912. To deter this increasingly rampant degree of violence in the schools, and to protect those who seek to be in schools for scholastic purposes, the legislature provided that offenders would be guilty of new crimes or newly-created aggravated offenses. By enacting 18 Pa.C.S.A. § 2702(a)(5), the legislature took what would ordinarily be a simple assault and made it an aggravated assault under specific circumstances.
      Whether the statute applies to a student-on-student scuffle is not an issue before us. Nonetheless, we perceive a debatable issue arising from an important statute. The General Assembly may preempt any actual debate by elucidating its expressed intent.

      . The "one-punch situation” which the trial court purposefully avoided was the controversial issue of whether one punch constitutes an aggravated assault pursuant to 18 Pa.C.S.A. § 2702(a)(1). Compare Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978) (where Commonwealth did not allege actual serious bodily injury, single punch to nose was insufficient to prove intent element of aggravated assault) with Commonwealth v. Kibe, 258 Pa.Super. 353, 392 A.2d 831 (1978) (single strike to face which fractured nose is sufficient evidence of aggravated assault).

      . We note that, although appellant will remain a "juvenile delinquent” due to his commission of a simple assault, appellant’s discharge for the aggravated assault charge has significant meaning to appellant. See In re Smith, 393 Pa.Super. 39, 47, 573 A.2d 1077, 1080 (1990) (en banc)' (plurality) (juvenile record may substantially affect one’s later treatment in criminal justice system); Commonwealth v. Felix, 372 Pa.Super. 145, 539 A.2d 371 (1988) (staggering juvenile record must be considered in sentencing adult); Commonwealth v. Billett, 370 Pa.Super. 125, 535 A.2d 1182 (1988) (in sentencing adult, court could consider defendant’s prior adjudication of delinquency).


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    622 A.2d 966
    Vanessa SANDERS, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Eastern Casualty Company, t/a Atlas Insurance Agency.
    Superior Court of Pennsylvania.
    Argued Dec. 8, 1992.
    Filed March 26, 1993.

      Joseph V. Restifo, Philadelphia, for appellant.
    Phillip Berger, Philadelphia, for Eastern Cas., appellee.
    Before McEWEN, CIRILLO and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the grant of appellee’s, Eastern Casualty Company t/a Atlas Insurance Agency, motion for summary judgment. Appellant, Vanessa Sanders, raises one issue for our consideration on appeal.

Where in a suit in assumpsit and trespass against an insurance agency for failing to secure the requested automobile insurance coverage for medical expense and wage loss, suit is started about two years and five months after issuance of the policy in question and the accident in question, and the plaintiffs attorney pays the prothonotary the prothonotary’s filing fee and the sheriffs service fee and gives to the prothonotary a copy of the complaint to deliver to the sheriff for service, in accordance with the normal practice in Philadelphia at that time, and the sheriff never effects service on the defendant, are the plaintiffs claims barred by the statute of limitations?

Appellant’s Brief at 2. For the reasons that follow, we reverse and remand as to appellant’s contract claim.

Appellant was the owner of an insurance policy issued by State Farm Mutual Insurance Company through Eastern Casualty Company. Appellant was involved in an automobile accident on May 21, 1985, and incurred medical expenses and lost income in excess of the amounts provided by the State Farm policy. On October 19,1987, appellant filed a complaint in the present action alleging that appellee acted negligently and in breach of contract by not providing the level of insurance which appellant orally requested from appellee. On December 23, 1991, appellee filed a motion for summary judgment based upon appellant’s alleged failure to timely serve process on appellee within the two- year statute of limitations applicable to the negligence claim, and four year statute of limitations period applicable to the breach of contract claim. By order dated April 2, 1992, the trial’ court granted appellee’s motion as to both the negligence and contract claims. This timely appeal followed.

This Court’s scope of review of a grant of summary judgment is plenary. Briggs v. Erie Insurance Group, 406 Pa.Super. 560, 594 A.2d 761 (1991). In reviewing an order granting a motion for summary judgment, we must view the record in the light most favorable to the non-moving party. Dorohovich v. West American Insurance Co., 403 Pa.Super. 412, 589 A.2d 252 (1991). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). Moreover, in summary judgment proceedings, it is not the court’s function to determine the facts, but only to determine if an issue of material fact exists. Godlewski v. Pars Manufacturing Co., 408 Pa.Super. 425, 597 A.2d 106 (1991). Summary judgment is proper only where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the trial court’s conclusion that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989).

In the instant case, appellant presented evidence that a complaint was filed on October 19, 1987 and that appellant paid the prothonotary’s fee of fifty-five dollars as well as the sheriffs fee of sixty dollars to effectuate service. See Trial Court Docket Sheet. Thus, the action was filed within the statutory limitations period for oral contract actions. Appellant also asserted that the prothonotary was provided with the completed sheriff’s service form. The trial court however ruled that appellant had failed to act in good faith to effectuate service.

Plaintiffs are required to make a good faith effort to notify a defendant of a commenced action. Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589, 511 A.2d 757 (1986); Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976). The purpose behind this requirement is “to avoid the situation in which a plaintiff can bring an action, but by not making a good-faith effort to notify a defendant, retain exclusive control over it for a period in excess of that permitted by the statute of limitations.” Lamp, 469 Pa. at 478, 366 A.2d at 899. Thus the Court in Lamp held that a “writ of summons shall remain effective to commence an action only if the plaintiff then refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion.” Id. The Court characterized such unacceptable conduct as follows: “depending upon the process obtaining in a particular county, this can be accomplished by instructing either the prothonotary or the sheriff to hold the writ, by personally retaining the writ and not delivering it to the sheriff for service, or by neglecting to pay the sheriff his fee.” Id. at 472, 366 A.2d at 866.

Thus a plaintiff will fail the good faith requirement when he takes affirmative steps to prevent service on a defendant. Gould v. Nazareth Hosp., 354 Pa.Super. 248, 511 A.2d 855 (1986). However, where a plaintiff complies with the proper local procedural requirements for effecting service, but service is not made on the defendant due to sheriffs error, the plaintiff will be deemed to have acted in good faith. Id. at 252-253, 511 A.2d at 858.

In the instant case, the trial court noted that the sheriff did not make an initial attempt to effectuate service until appellant reinstated the complaint in May of 1990. Trial Court Opinion, 6/25/92 at 4. The trial court concluded from this that appellant had failed to comply with the proper local procedure and hence failed to meet the good faith standard. Id. The trial court reasoned:

Payment of Prothonotary fees does not necessarily establish that plaintiff made a good faith effort to serve Atlas. Plaintiff can fail to enable the sheriff to serve a complaint even if plaintiff has paid the prothonotary to provide the sheriff with the complaint for service. For example, ... [a] plaintiff can simply not deliver the complaint and the Prothonotary’s receipt to the sheriff. In addition, a party can telephone the sheriff and request the sheriff hold a writ or complaint____ Plaintiff may not have specifically taken steps to prevent service, yet plaintiff fails to state whether plaintiff took steps to enable service to Atlas.

Id. at 5.

From the above quoted portion of the trial court’s opinion, it is clear that the learned court failed to apply the proper standard for summary judgment in the instant case. The court did not examine the evidence in the light most favorable to the appellant but on the contrary inferred from the fact that the complaint had not been served by the sheriffs department, that appellant prevented service or failed to take steps to effectuate service. The court thus disregarded appellant’s documented efforts to effectuate service by the filing of the complaint and payment of the proper fees, and discounted appellant’s assertion that the prothonotary was provided a completed sheriffs service form.

Viewing the evidence in the light most favorable to appellant, there is a material question of fact as to whether appellant complied properly with local procedure and an error in the sheriffs department resulted in the failure of service to the appellee, or whether it was appellant’s conduct which caused the failure of service. If appellant did comply with the proper procedure, and the sheriffs error resulted in failure to serve appellee, appellant acted in good faith to effectuate service. Gould, 354 Pa.Super. at 252-253, 511 A.2d at 858. Thus, the trial court erred in granting summary judgment when a material question of fact existed. Accordingly, we reverse and remand to the trial court.

Reversed. Case remanded. Jurisdiction relinquished.

      . In the instant case, appellant provides support for her claim that the trial court erred in its grant of summary judgment as to the contract claim only. Accordingly, this will be the sole issue addressed on appeal.

      . 42 Pa.C.S.A. § 5525(3).

      . This same standard applies to actions initiated by complaint, as in the present case. See Pannill v. Seahorne, 278 Pa.Super. 562, 420 A.2d 684 (1980).


author: CIRILLO, Judge: WIEAND, Judge,

text:
    622 A.2d 969
    Doreen JACKSON, Appellant, v. Richard Lee GARLAND and John Walston and Joyce Walston, his Wife.
    Superior Court of Pennsylvania.
    Submitted Jan. 11, 1993.
    Filed March 29, 1993.

      Robert Shreve, Pittsburgh, for appellant.
    John Walston, pro se.
    Joyce Walston, pro se.
    Richard L. Garland, pro se.
    Before WIEAND, CIRILLO and MONTGOMERY, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Westmoreland County sustaining the preliminary objections of appellees Richard Lee Garland (Garland) and John Walston and Joyce Walston (the Walstons). We affirm.

Appellant Doreen D. Jackson (Jackson) filed a complaint on November 4, 1991 for partial custody of her sister’s minor child, Jaymes Carl Garland. Jaymes was three years-old at the time the complaint was filed. He is the child of Jackson’s sister, Denise C. Sabo, and appellee Garland. Garland is presently incarcerated in North Carolina for killing Sabo, the child’s mother.

Jaymes’s mother was killed on April 13, 1991. On that same date Jaymes’s father was incarcerated. At that time, Jaymes was in the custody of his paternal grandparents pursuant to a de facto custody arrangement. Thereafter, the paternal grandparents filed a complaint against Garland for custody of Jaymes. A consent custody order was entered on September 5, 1991 granting physical custody of Jaymes to the paternal grandparents. The father, though incarcerated, retains legal custody of Jaymes.

On November 4, 1991, Jackson filed a complaint for partial custody of Jaymes. Jackson, the maternal aunt, is married with two children. She alleges that it is in Jaymes’s best interest to maintain a relationship with his deceased mother’s extended family. Jackson seeks only visitation or partial custody in order to “maintain the relationship established during visits made to Pennsylvania by her deceased sister.”

Jackson named Garland and the paternal grandparents as defendants. Garland, as the natural parent and legal custodian of Jaymes, opposed the complaint. Garland determined that “it would not be in the best interest of his son, Jaymes Earl Garland, to have visitation with or be placed in partial custody of Doreen D. Jackson.”

Following the filing of Jackson’s complaint, a preliminary custody conference was scheduled in accordance with Westmoreland County procedure. At the conference, appellees’ counsel raised the affirmative defense of Jackson’s lack of standing. Both parties submitted written memoranda on this issue. The court considered the parties’ arguments and dismissed Jackson’s complaint, stating:

There is no stated public policy to provide a forum for the seeking of partial custody or visitation to the siblings of a deceased parent. Absent a legislative directive and absent any compelling reason to the contrary (such as showing that the child in question had resided with the aunt or uncle seeking partial custody or visitation for a substantial period of time), this Court is unwilling and unable to extend standing to [Jackson].
On appeal, Jackson raises four issues:
1. Whether the trial court erred in determining that appellant’s case should have been dismissed by sustaining appellees’ preliminary objections?
2. Whether the trial court committed an error by relying upon express statutory provisions to determine whether appellant had standing to pursue a partial custody action?
3. Whether the trial court committed an error by not liberally interpreting the custody statutes to grant appellant standing in this situation?
4. Whether the trial court committed an error by relying on case law to decide this issue since there is none controlling due to the unique facts of this case?

Each of these issues presents the same question: does Jackson have standing to sue for partial custody or visitation of her sister’s child?

When reviewing an order granting preliminary objections in the nature of a demurrer, an appellate court applies the same standard employed by the trial court: all material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for the purposes of review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the demurrer. Kyle v. McNamara & Criste, 506 Pa. 631, 633-34, 487 A.2d 814, 815 (1985); Baker v. Magnetic Analysis Corp., 347 Pa.Super. 188, 191-92, 500 A.2d 470, 472 (1985).

The law protects the natural parent’s relationship with his or her child and will not interfere unnecessarily with that relationship, even at the cost of estrangement to the extended family. Freedom of personal choice in matters of family life, and concomitant freedom from unwarranted governmental intrusions, is a fundamental liberty interest protected by the Fourteenth Amendment to the United States Constitution. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Weber v. Weber, 362 Pa.Super. 262, 524 A.2d 498 (1987). The General Assembly has declared:

[I]t is the public policy of this Commonwealth, when in the best interest of the child, to assure reasonable and continuing contact of the child with both parents after a separation or dissolution of the marriage and the sharing of the rights and responsibilities of child rearing by both parents and continuing contact of the child or children with grandparents when a parent is deceased, divorced or separated.

23 Pa.C.S. § 5301. In furtherance of this policy, the legislature has specified limited circumstances in which governmental intrusion into the family is warranted. See 42 Pa.C.S. §§ 6351, 6352 (outlining procedure for initiating dependency proceedings); 23 Pa.C.S. § 2511 (involuntary termination of parental rights); 23 Pa.C.S. § 6301 et seq. (taking an abused child into protective custody); 23 Pa.C.S. §§ 5311-5313 (grandparents visitation); 23 Pa.C.S. § 5301 et seq. (custody and visitation rights between parents in a divorce action). See also Weber, supra (adult daughter whose parents would not allow minor daughter to visit her outside the parents’ home because parents did not approve of adult daughter’s living arrangements lacked standing to bring action for partial custody of minor daughter over objections of parents, in absence of any statutory authority to do so); cf. Gradwell v. Strausser, 416 Pa.Super. 118, 610 A.2d 999 (1992) (grandparents lacked standing to seek legal custody of grandchild from natural parents). The statute makes no provision for ensuring the relationship between the child and a deceased parent’s siblings or extended family. Absent a specific legislative pronouncement to the contrary, this court is powerless to grant standing to the maternal aunt in this case. Compare Weber, supra with Rogers v. Trent, 594 A.2d 32 (Del.Sup.1991) (where maternal great-aunt and uncle had been granted temporary custody subsequent to divorce and thereafter court granted father’s petition for custody, court entertained and granted great-aunt and uncle’s petition for visitation; statutes did not limit entitlement to visitation to parents) and In re Custody of 137 Wis.2d 375, 404 N.W.2d 530 (1987) (great aunt, who had previously been guardian of minor child and had had custody of the minor child for six years was not precluded from seeking visitation despite the fact that the Wisconsin visitation statute provided visitation rights only for parents, grandparents, and great-grandparents; the court stated that “there is a distinction between a request for visitation ab initio from a person who never had custody of the child and a visitation request from a party who held custody under a valid custody order.”).

We reiterate the trial court’s acknowledgment that the application of the law of standing to the facts of this particular case leads to a disturbing result — a child’s father, after killing the child’s mother, has the ability to preclude the minor child from interaction with the mother’s extended family. “The question of standing is rooted in the notion that for a party to maintain a challenge to an official order or action, he must be aggrieved in that his rights have been invaded or infringed.” South Whitehall Township Police Serv. v. South Whitehall Township, 521 Pa. 82, 86-87, 555 A.2d 793, 795 (1989). The law of standing provides that one cannot invoke the jurisdiction of the court to enforce private rights or to maintain a civil action for the enforcement of such rights, unless he or she has, in an individual or representative capacity, some real interest in the cause of action, or a legal right, title or interest in the subject matter or controversy. 3 Standard Pennsylvania Practice § 14:12. We do not question Jackson’s emotional or personal interest in this matter. Nonetheless, the relevant law centers on the concept of legal interest or standing. Because Jackson does not seek legal custody of the child, or assert that the child has resided with her for a year or more or that she assumed in loco parentis status, her case unfortunately slips through one of the voids in the law. Having specifically addressed parents, grandparents, and great-grandparents in the visitation statute, we are presented with the issue of whether the legislature intended to preclude an adult sibling of a deceased parent from seeking visitation rights.

The legislature has provided that if a parent of an unmarried child is deceased,

the parents or grandparents of the deceased parent may be granted reasonable partial custody or visitation rights, or both, to the unmarried child by the court upon a finding that partial custody or visitation rights, or both, would be in the best interest of the child and would not interfere with the parent-child relationship.

23 Pa.C.S. § 5311 (emphasis added). See also 23 Pa.C.S. § 5312 (providing statutory right of action for grandparents or great-grandparents of a child when the child’s parents’ marriage is dissolved or parents are separated). Further, the legislature has provided grandparents or great-grandparents with a statutory right of action for partial custody or visitation when the child has resided with them for a period of one year or more and is subsequently removed by the parents. See 23 Pa.C.S. § 5313.

Applying our rules of construction, in particular the maxim which provides that the expression of one thing is the exclusion of another — “expressio unius est exclusio alterius,” we conclude that the legislature, having expressly granted a right of action for partial custody or visitation to lineal ascendants, intended to restrict it as such. See Strunack v. Ecker, 283 Pa.Super. 585, 424 A.2d 1355, rev’d on other grounds, 496 Pa. 290, 436 A.2d 1187 (1981) (where certain things are specifically designated in a statute, all omissions should be understood as exclusions). This construction furthers the policy of limited intrusion into the family. A change in this policy is beyond our function as an intermediate appellate court and, therefore, we are compelled to affirm the order sustaining preliminary objections and dismissing Jackson’s complaint. See Kyle, supra; see also In re Private Detective License of Keibler Detective Agency, Inc., 279 Pa.Super. 276, 420 A.2d 1331 (1980) (court does not have the power to create additional authority in a statute if the words therein are clear and free from all ambiguity).

Order affirmed.

WIEAND, J., filed a dissenting statement.

WIEAND, Judge,

dissenting:

I respectfully dissent. The majority, in my judgment, confuses the aunt’s standing to file an action for visitation and the substantive right of an aunt to obtain an order of court allowing her to visit the child of her deceased sister. I would hold that she has standing to bring the action and would remand for a determination of her substantive right, if any, to an order allowing visitation under the circumstances of this case.

      . The record in this case is limited and does not disclose the specific crime of which the father was convicted or his term of imprisonment.

      . Although Jackson has captioned her complaint as one for partial custody, she seeks relief in the form of partial custody or visitation. We point out that the terms "partial custody” and "visitation,” though often used interchangeably, each have a distinct legal meaning. Partial custody refers to the right to take possession of a child away from the custodial person for a specified period of time; visitation is the right to visit with a child without physically removing the child from the custodian. 23 Pa.C.S. § 5302.


author: HESTER, Judge:

text:
    622 A.2d 972
    COMMONWEALTH of Pennsylvania v. Charles MOBLEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 25, 1993.
    Filed March 29, 1993.

      Sheryl S. Chernoff, Penn Wynne, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before BECK, TAMILIA and HESTER, JJ.
   HESTER, Judge:

Charles Mobley appeals from the judgment of sentence of twenty-one to seventy-two months imprisonment imposed after he was found guilty at a nonjury trial of possession of a controlled substance with intent to deliver. We affirm.

On February 13, 1991, between 4:30 p.m. and 7:00 p.m., Philadelphia Police Officer Sandra Haines and another female officer were operating undercover on Fernon Street in Philadelphia. Officer Haines’s companion purchased crack cocaine from an unidentified male. The male informed Officer Haines that he did not have any more drugs but that she should wait for another drug dealer, who would be coming shortly. Several minutes later, just as it was about to get dark, appellant arrived in a car.

Officer Haines approached appellant, who asked her what she wanted. Officer Haines replied, “I need four caps,” which means four vials of cocaine. Notes of Testimony, 2/4/92, at 45. At the time, Officer Haines was inches away from appellant’s face. Appellant entered 1919 Fernon Street and returned shortly with four vials of crack cocaine. Appellant was standing three to four steps away from Officer Haines when he sold her the drugs. As the officers were involved in an ongoing narcotics investigation, appellant was not arrested at the time. However, Officer Haines immediately returned to the police station and identified appellant from a photograph.

Based upon these events, police obtained a search warrant for 1919 Fernon Street, which was executed on February 21, 1991. Appellant was not present, but police recovered a motor vehicle owner’s card containing appellant’s name as well as cocaine base and a Colt .45 automatic weapon. The address on the owner’s card was 1919 Fernon Street. An arrest warrant was issued, and appellant was arrested on March 15, 1992, while police were executing a search warrant during an unrelated drug investigation.

Based on this evidence, appellant was convicted of possession of a controlled substance with intent to deliver. This appeal followed imposition of the described sentence. Appellant first claims that Officer Haines’s photographic identification should have been suppressed. In reviewing a trial court’s decision denying the suppression of evidence, we

must consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Kichline, 468 Pa. 265, 280-81, 361 A.2d 282, 290 (1976). If the record supports the factual findings of the suppression court, as well as the legitimacy of the inferences and legal conclusions drawn from those findings, they may not be disturbed on appeal. Commonwealth v. O’Bryant, 479 Pa. 534, 537, 388 A.2d 1059, 1061, cert. denied, 439 U.S. 990, 99 S.Ct. 589, 58 L.Ed.2d 664 (1978). “It is, however, exclusively the province of the suppression court to determine the credibility of the witnesses and the weight to be accorded to their testimony.” Commonwealth v. Neely, 298 Pa.Super. 328, 341, 444 A.2d 1199, 1205 (1982).

Commonwealth v. Mason, 415 Pa.Super. 22, 24-25, 608 A.2d 506, 507 (1992).

In the present case, the record indicates the following. Before Officer Haines began her undercover operation on February 13, 1991, she was shown approximately ten photographs of suspected drug dealers. Although appellant’s first contention is that use of this photographic display was improper, he fails to support the position that the viewing of suspected criminals prior to a criminal investigation is legally infirm.

An identification resulting from a suggestive photographic display is suppressed because use of suggestive displays may result in a witness’s erroneous identification of the defendant based on the display. See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) (use of suggestive photographic display is improper as it may cause witness to err in identification since witness may have had brief opportunity to view suspect and may premise identification on display rather than on criminal event); see also Commonwealth v. Fowler, 466 Pa. 198, 352 A.2d 17 (1976).

In the present case, appellant offers no reason why it should be impermissible for an investigating officer to review suspects before an investigation so that the officer will be able to identify the actors after the events. Further, we cannot agree with appellant’s contention that Officer Haines identified him due to the display, which he does not establish was “suggestive,” rather than based upon her observations. She simply knew appellant prior to their meeting. The fact that she gained this knowledge through her prior review of photographs does not taint the identification. It is ludicrous to suggest that police may not use photographs to become familiar with suspects when they are investigating criminal activity.

Further, we reject appellant’s second contention, which is that Officer Haines’s use of the same photographic display following the drug sale was improper. He bases this claim on the allegation that only appellant’s picture was presented to Haines when she returned to the police station following the drug transaction. This is refuted by the record, which establishes that Officer Haines was shown the same display after the drug sale, and she stated that appellant sold her the drugs. As there is not a scintilla of evidence that Officer Haines identified appellant based on a “suggestive” photographic display rather than her observations, we reject appellant’s contention that the officer’s in-court identification of him must be suppressed.

Appellant next contends that the court improperly restricted his cross-examination of Officer Haines. Specifically, he alleges that he was not permitted to cross-examine the officer about: 1) an alleged inconsistency between her trial and preliminary hearing testimony as to when the drug transaction occurred; 2) how light it was outside at the time of the drug purchase; 3) the length of time that she observed appellant during the transaction; and 4) whether police have the ability to take surveillance photographs of drug transactions.

“The scope and limits of cross-examination are largely within the discretion of the trial court and its actions pertaining thereto will not be reversed in the absence of a clear abuse of its discretion or error of law.” Commonwealth v. Buehl, 510 Pa. 363, 388, 508 A.2d 1167, 1179 (1986); see also Commonwealth v. Fried, 382 Pa.Super. 156, 555 A.2d 119 (1989). In the present case, our review of the record indicates either that trial counsel was able to elicit the information that he sought to reveal during cross-examination and restrictions were properly applied due to the repetitive nature of the cross-examination or that counsel asked an improper question.

First, contrary to his assertion, appellant was permitted to cross-examine Officer Haines about an alleged inconsistency between her preliminary hearing testimony and trial testimony as to when the crime occurred. See N.T., 2/4/92, at 56. Appellant was restricted later, when he attempted to repeat the same, answered question. Id. at 57.

Next, we examine appellant’s claim he was restricted in cross-examining Officer Haines about how dark it was outside when she viewed appellant. First, appellant was not permitted to contradict the officer with a statement she allegedly made during the preliminary hearing indicating that it was dark when the drugs were sold. This restriction, however, was premised upon the fact that the witness’s preliminary hearing testimony was not inconsistent. She never stated that it was dark at the time of the sale either at the preliminary hearing or at trial. She always stated that it was nearly or almost dark. A trial court may curtail questioning if the question does not contradict or “impeach” the relevant testimony. Commonwealth v. Morris, 320 Pa.Super. 139, 466 A.2d 1356 (1983). Thus, this restriction was proper.

As to appellant’s claim that he was not permitted to question the witness about the lighting conditions at the time of the sale, the record indicates that he did not ask the witness about her observations. Instead, he attempted to impeach the witness with a newspaper report about when sunsets occurred in February. The trial court ruled that appellant could not cross-examine the witness with that information but that he could bring out this evidence during his case-in-chief. As the purpose of cross-examination is to impeach a witness, not develop facts, the ruling was proper.

In this case, Officer Haines admittedly was not able to pinpoint precisely when she purchased drugs from appellant. She stated that she began to patrol the area at approximately 4:30 and that she purchased the drugs from appellant when it was almost dark. She said that she thought that she purchased the drugs around 6:30 p.m. or 7:00 p.m. Appellant was permitted to cross-examine her about her imprecision, and no error occurred.

Equally meritless is appellant’s assertion that he was restricted in his questioning of Officer Haines about police ability to take surveillance photographs. He actually was allowed a significant amount of questioning on this issue: [APPELLANT’S COUNSEL]: Q. You did not have a surveillance van out there taking pictures—

THE COURT: You weren’t on a surveillance that night, were you?
THE WITNESS: No, I was not. I was on foot. [APPELLANT’S COUNSEL]: Q. You did not ask to have a surveillance van take photos of anybody that you purchased from, did you?
[DISTRICT ATTORNEY]: Objection.
[OFFICER HAINES]: I had no knowledge of any pictures being taken that night.
[APPELLANT’S COUNSEL]: Q. What a surveillance van is, as the district attorney brought out, is a van that’s got telephoto equipment which can take pictures day and night of individuals out on the street or somewhere else?
A. They have a camera sure, but I can do a surveillance and I would never need a camera.
Q. Right. But the police department does have surveillance equipment?
A. Yes, they do.
Q. And it’s certainly possible to take photos day or night, isn’t it?
[DISTRICT ATTORNEY]: Objection, Judge.
THE COURT: Overruled. Anything is possible. [OFFICER HAINES]: That’s correct. I don’t know of anyone taking any pictures.
[APPELLANT’S COUNSEL]: The narcotics unit does occasionally take photos from surveillance vans, that’s what they’re for, doesn’t it?
A. They do.

N.T., 2/4/92, at 82. His questions were not curtailed until recross examination, when the trial court ruled that enough evidence had been elicited on the point. Id. at 88-84.

The record also indicates that appellant was permitted to question Officer Haines twice about how long she was in contact with appellant on the evening in question. Id. at 70, 75-76. The third time he asked the question, he was restricted. Thus, appellant’s claims regarding cross-examination are meritless.

Appellant’s final contention is that he should have been allowed to present the testimony of the attorney who represented him at the preliminary hearing in order to impeach Officer Haines’s identification skills. Specifically, he alleges Officer Haines confused appellant’s trial counsel with counsel’s partner, who was present at the preliminary hearing. The record contains the following exchange:

[APPELLANT’S COUNSEL]:
Q. I direct your attention to page 7 of the preliminary hearing notes. These lines right here.
A. Yes. It says Mr. McLaughlin. Are you Mr. McLaughlin?
Q. I’m Mr. Newman.
A. It says Mr. McLaughlin here.
Q. Mr. McLaughlin is my partner.

N.T., 2/4/92, at 55-56.

Appellant then requested and was denied the opportunity to have the jury view his counsel’s partner in order to demonstrate that Officer Haines had poor identification skills since she did not distinguish the two men. We affirm the trial court’s ruling. We rely upon the following well-settled standard for guidance on this issue. The admission or exclusion of evidence is within the sound discretion of the trial court; we will not overturn that determination absent an abuse of discretion. Commonwealth v. John, 408 Pa.Super. 234, 596 A.2d 834 (1991). In addition, competent evidence is both relevant and admissible if it logically or reasonably tends to prove or disprove a material fact in issue, tends to make such fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact. Commonwealth v. Davis, 381 Pa.Super. 483, 554 A.2d 104 (1989).

In the present case, the trial court correctly observed in reviewing the above exchange that it was not established that the witness had misidentified either man. Further, the trial court correctly concluded that this matter was entirely collateral or irrelevant to the issues at trial. No error occurred.

Judgment of sentence affirmed.


author: OLSZEWSKI, Judge:

text:
    622 A.2d 977
    Anthony John VENERI, Jr., Appellant, v. Robert F. PAPPANO, Esquire, Appellee.
    Superior Court of Pennsylvania.
    Submitted Jan. 11, 1993.
    Filed April 1, 1993.

      Anthony J. Veneri, pro se.
    Patricia N. Holsten, Media, for appellee.
    Before OLSZEWSKI, TAMILIA and BROSKY, JJ.
   OLSZEWSKI, Judge:

The following is an appeal from Hon. Joseph F. Battle’s order sustaining appellee Pappano’s preliminary objections to Anthony Veneri’s complaint. We affirm.

In 1979, Veneri was convicted of two related robberies and sentenced to twenty-five to fifty years incarceration. After Veneri’s direct appeal rights were exhausted, Veneri began a sojourn along both the state and federal collateral relief avenues. In 1988, Veneri’s PCHA petition was denied by the Delaware County Court of Common Pleas. Although the record does not disclose the nature of Veneri’s claim, and he makes no effort to inform us of it, Pappano, a member of the Delaware County Public Defender’s Office, was assigned to act as Veneri’s appellate counsel. This Court affirmed the trial court’s dismissal of the PCHA petition. Veneri allegedly informed Pappano that he wished to file a petition for allowance of appeal to our Supreme Court. Counsel did not file the petition. Veneri therefore filed the petition pro se.

Veneri then filed this action against Pappano claiming that Pappano was negligent in failing to file the petition for allowance of appeal. The trial court sustained Pappano’s preliminary objection in the form of a demurrer and dismissed the complaint. Veneri appeals this order.

Before addressing the veracity of Veneri’s complaint, we are obliged to comment on Pappano’s contention-that he can avail himself of statutory immunity under the Political Subdivision Tort Claims Act, 42 Pa.C.S.A. § 8541, et seq., as an employee of the Delaware County Public Defender’s Office. He cannot. Our Supreme Court has held that once a public defender is assigned to assist a criminal defendant, his public function ceases and he is subject to civil liability for tortious conduct. Reese v. Danforth, 486 Pa. 479, 406 A.2d 735 (1979). Moreover, this Court has held that although Reese was not decided under the current immunity statutes, its reasoning applies equally to public defenders seeking to avail themselves of immunity under the Political Subdivision Tort Claims Act. Williams v. Office of Public Defender, 402 Pa.Super. 188, 586 A.2d 924 (1990). Thus, Pappano is not immune from civil liability.

Nevertheless, we cannot find that Veneri’s complaint states a cause of action in negligence against Pappano. When considering a ruling on preliminary objections in the form of a demurrer, our standard of review is well settled:

All material facts set forth in the complaint as well as all the inferences reasonably deducible therefrom are admitted as true for the purpose of this review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be in favor of overruling it.

Muhammad v. Strassburger, et al., 526 Pa. 541, 547, 587 A.2d 1346, 1349 (1991), cert. denied, — U.S.-, 112 S.Ct. 196, 116 L.Ed.2d 156 (1991) (quoting Vattimo v. Lower Bucks Hospital, 502 Pa. 241, 243-45, 465 A.2d 1231, 1232-1233 (1983) (citations omitted)).

Veneri’s complaint alleges that Pappano was assigned as appellate counsel and that despite Veneri’s request, Pappano failed to file a petition for allowance of appeal. Veneri alleges that had he not been aware of the law’s intricacies, which he learned through personal teachings at the state prison, he would have been unable seek federal habeas corpus relief as a result of his failure to exhaust state remedies. Veneri prays for the value of his services in filing the pro se petition for allowance of appeal and for $250,000 in compensatory and punitive damages. We find these allegations insufficient to survive a demurrer.

The three elements of a cause of action for professional negligence (or legal malpractice) are (1) the employment of the attorney or other basis for his duty to act as an attorney, (2) the failure of the attorney to exercise ordinary skill and knowledge, and (3) that such negligence was the proximate cause of damage to the plaintiff. Additionally, the plaintiff must be able to establish by a preponderance of the evidence that he or she would have prevailed in the underlying litigation.

Ibn-Sadiika v. Riester, 380 Pa.Super. 397, 403, 551 A.2d 1112, 1115 (1988) (citations omitted). We find that Veneri has simply not alleged sufficient damage.

In a professional malpractice case, “nominal damages, speculative harm, or the threat of future harm, do not provide a basis for a cause of action.” Id. at 403, 551 A.2d at 1115. Here, the only real harm that Veneri claims to have suffered from Pappano’s failure to file the petition is the possibility that he would have lost his right to file for federal habeas relief had Veneri not filed the petition himself. These damages could not be more speculative. Veneri did protect his right to pursue federal habeas relief, and was therefore not damaged by Pappano’s failure to file the petition.

Finally, to the extent that Veneri seeks “compensatory” damages for the reasonable value of the effort it took him to file the petition himself, he has not alleged that he has a chance of prevailing in the underlying litigation, i.e., his federal habeas corpus claims. He does not indicate the nature of his claims or that he is likely to successfully obtain relief by relying on them. His complaint was therefore properly dismissed. Ibn-Sadiika, 380 Pa.Super. at 405, 551 A.2d at 1116 (failure to allege potential success of underlying litigation is fatal to allegation that alleged malpractice “proximately caused” harm).

The order sustaining the demurrer to Veneri’s complaint is affirmed.

      . As of this date, Veneri has filed three PCRA petitions and two petitions each under the PCRA and federal habeas corpus statutes. All of these petitions have been unsuccessful.

      . We note that after this case was submitted to this Court, our Supreme Court redefined the cause of action for malpractice against a criminal defense attorney. In Bailey v. Tucker, — Pa.-, 621 A.2d 108, No. 34 W.D. Appeal Docket 1987 (Pa.Supreme Court, filed 2/26/93), the Court incorporated principles of immunity into the cause of action, making the pleading requirements more rigorous than under the law by which we are addressing the sufficiency of Veneri's complaint here. Under Bailey, a plaintiff must plead and prove: (1) the employment of the attorney, (2) the attorney's reckless and wanton disregard for the defendant’s interests, (3) that the attorney’s conduct proximately caused the plaintiff injury, i.e., "but for” the attorney's conduct the plaintiff would have obtained an acquittal or complete dismissal of the charges, (4) that the plaintiff suffered damages, and (5) that the plaintiff has sought and will win (or has already won) post-trial relief dependent on the attorney’s conduct. Id., at---, 621 A.2d 108.
      Normally, a new judicial decision is applied retroactively to all cases pending on direct appeal unless the decision specifically declares the new ruling to be prospective only. Blackwell v. Commonwealth, State Ethics Commission, 527 Pa. 172, 589 A.2d 1094 (1991). However, the retroactive effect of new judicial decisions is considered on a case-by-case basis, taking into account the purposes of the new rule, reliance on the old rule by the parties, and the effect of administering justice by applying the new rule retroactively. Id.; Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969). We need not decide in this case whether Bailey will be given retroactive effect to complaints filed before February 26, 1993, because our decision rests on our finding that Veneri has not pled sufficient damages, a fatal defect under both Bailey and pre-Bailey law.

      . In fact, as we noted above, Veneri has applied twice for federal habeas relief and both petitions were dismissed.


text:
    622 A.2d 979
    In re B.B. Appeal of M.K.
    Superior Court of Pennsylvania.
    Submitted Jan. 7, 1993.
    Filed April 2, 1993.

      Jay Stillman, Asst. Public Defender, Williamsport, for appellant.
    Ralph W. Thorne, Williamsport, for appellee.
    Charles F. Greevy, III, Williamsport, for participating party.
    Before WIEAND, OLSZEWSKI and HESTER, JJ.
   HESTER, Judge:

This is an appeal from an order declaring B.B. an abused child and her mother, M.K., appellant, the perpetrator of the abuse by omission. M.K.’s paramour, Jason Jean, was named as the likely perpetrator of the abuse. B.B. was one and one-half years old when the abuse occurred. We affirm.

On November 19, 1991, Jason Jean took B.B., born February 13, 1990, to her baby-sitter, Christie Probst, about 9:00 a.m. Mrs. Probst changed B.B.’s diaper one hour later and discovered severe bruising across the child’s buttocks. Unable to reach B.B.’s father, J.B., Probst called the paternal grandparents who then called Lycoming County Children and Youth Services (CYS). Mrs. Probst also called CYS.

Later that afternoon, Linda Bloom, a CYS caseworker, went to the Probst home to view the child’s injuries, and took pictures of the bruised area. Ms. Bloom telephoned M.K. at work, and she immediately came to the Probst home. B.B. thereafter, was examined in the emergency room of a local hospital. The examining physician dated the infliction of the bruises to be between three to seven days prior. Ms. Bloom then ascertained the identities of all persons in whose care B.B. had been during that time and eliminated them as possible caretakers for B.B. As the natural father was away on a hunting trip, Bloom suggested the paternal grandparents act as custodians for B.B. and M.K. agreed. A few days later, B.B. was placed in the care and custody of her father, J.B.

B.B.’s parents never married but had resided together in J.B.’s house until their separation on October 1, 1991. From that date until November 19,1991, B.B. primarily resided with her mother and mother’s paramour, Jason Jean. There was no formal custody agreement or order; the parties alternated physical custody among J.B., the paternal grandparents, the maternal grandmother, and occasionally M.K.’s sisters. M.K. was employed full time, and B.B. went to the home of Christie Probst Monday through Thursday, 9:00 a.m. until 5:00 p.m. On Fridays, she was in the care of another baby-sitter, Althea Alsbaugh.

The following procedural history is relevant. CYS filed a petition to declare B.B. a dependent child on January 9, 1992, under both the Juvenile Act, 42 Pa.C.S. § 6302, and the Child Protective Service Law, 23 Pa.C.S. § 6303. Hearings were held on January 29, February 7, and February 14, 1992. All parties were represented by counsel, including a court-appointed guardian ad litem for B.B. In addition to addressing the dependency action, the hearings addressed mother’s petition for habeas corpus, filed December 13, 1991, by which she sought return of B.B. to her custody, and father’s petition for custody filed December 23, 1991.

Appellant first argues that the evidence was insufficient to establish her as a perpetrator by omission. In support, she contends that the testimony of Dr. Nesbitt, the family physician, established that the bruises on B.B.’s buttocks “could indeed have come from an accident.” Appellant’s brief at 9. Moreover, she asserts that Nesbitt’s testimony establishes that the injuries B.B. sustained obviously resulted from an isolated incident. Appellant argues that the evidence did not establish that she knew of the risk of harm to B.B. and failed to prevent it. We disagree.

First, Dr. Nesbitt’s testimony did not establish that B.B.’s injuries could have resulted from an accident. Dr. Nesbitt had not examined B.B. In fact, Dr. Nesbitt had not seen B.B. for a nine-month period, from April, 1991, until January 13, 1992. Notes of Testimony (“N.T.”), 1/29/92, at 70. If anything, this testimony establishes that appellant did not insure that B.B. received the medical attention prescribed for an infant between the age of one and two.

Moreover, regarding the bruises specifically, Dr. Nesbitt simply viewed the photographs taken on November 19, 1991. Counsel for appellant asked Dr. Nesbitt, “[C]an you determine by looking at the photographs whether it is accidental or an abusive type bruise?” Dr. Nesbitt replied, “I cannot by looking at these photographs say with any degree of certainty whether they’re accidental or inflicted.” Id. at 69. This testimony does not establish, as appellant contends, that the bruises were consistent with an accident. It simply substantiates that Dr. Nesbitt could not tell, one way or the other, with any degree of certainty, how the bruising occurred.

Second, appellant’s argument that even if Nesbitt’s testimony did not establish that the bruising occurred accidentally, it merely was an isolated incident, is troubling. It appears that appellant is contending that one incident of child abuse is not enough; a pattern of abuse or multiple incidents must be shown. This child is to be afforded the protection of the law whether there was one incident of abuse or many.

Dr. Collins, the physician who examined B.B. on November 20, 1991, testified extensively and succinctly about the nature of the injuries. Dr. Collins stated:

Of note, though, with the examination was a pronounced vertical bruising on the child’s buttocks. These were bruises which I would have guessed was possibly five to seven days in age looking at the way the bruising was turning green at the time and the evidence of no broken skin at that time, but there was definitely multiple bruising on the child’s buttocks. It would have been as if a ruler was used to repeatedly beat the child in that area. It was quite frankly something I have never ever seen in my life.

Id. at 54. Collins was asked about his statement that the bruising looked as if it had been made by a ruler. In reply, Dr. Collins stated:

They’re extremely parallel, uniform, straight, they’re, if you really, I have product of 12 years of Catholic education back in the ’50s and ’60s, I know what the ruler looks like when it hits a buttocks. Quite frankly I have no doubt in my mind that it was very similar in appearance.

Id. at 55. Counsel also asked Dr. Collins if the bruises could have resulted if the child had been struck while wearing a diaper. Dr. Collins responded,

I dare say that the buttocks could be covered with a diaper and still suffer that kind of bruising, but the impact of the beating would have to be quite significant if a diaper could provide cushioning and still provide bruising like that, the kid would have to have been hit very, very hard.

Id. The doctor again was asked if the bruises could have resulted accidentally, and he stated, “No, it looks like a beating.” Id. at 56.

Jason Jean, appellant’s paramour, testified that he had struck B.B. with a paint stirrer one month before the incident. He testified that it was done in the presence of appellant, over the child’s diaper, and with appellant’s consent. Appellant confirmed Jean’s testimony. N.T., 2/7/92, at 147. Linda Bloom testified that Mr. Jean told her he disciplined B.B. with a paint stirrer after losing the wooden ruler they used to discipline B.B. Id. at 179; N.T., 1/29/92, at 32, 33. The trial court found this testimony significant.

Appellant, appellant’s paramour, and in fact, everyone who had B.B. in their care during the three to five days preceding November 19, 1991, denied inflicting the bruises or even noticing the bruises on B.B. Based upon the evidence presented, the trial court concluded:

This Court found that the child’s grandmother had changed the child’s diaper on the previous Saturday [November 19 had been a Tuesday] and had not observed the marks. Thereafter the child was in the mother’s custody on Saturday evening when the mother bathed the child and applied cream to the diaper area on Saturday night, n.t. 157. She apparently changed the diaper several times on Sunday, n.t. 146, 157. The mother also admitted she “wiped her all up,” on Sunday night. Again, the mother changed the diaper on the child at least once Monday evening, n.t. 163, after the child had spent all day with her paramour who is the likely perpetrator of the abuse. The testimony was clear that the child’s diaper needed changed five or six times a day. (See, for example,. n.t. 170, 154, 157). Therefore, the mother had to have seen the injuries. The Court concluded that the mother obviously knew of the abuse and knew the abuse had occurred at a time when her paramour would have had custody of the child. The mother also was aware that the child had previously been physically punished by her paramour using a paint stirrer, a flat wooden ruler type tool, to spank the child, n.t. 147, 151, 152. The mother permitted the paramour to have custody of the child all day on Monday. Nevertheless, the mother denied any knowledge that her daughter had suffered any injuries and took no action to have the child examined or treated and did nothing to prevent her paramour from being in a position where he could exercise physical control of the child. Accordingly, the Court finds that the evidence was clear and convincing that the mother, [M.K.], had knowingly failed to protect the child from the injuries and failed to have the child treated for the injuries.

Trial court opinion, 6/23/92, at 8-9.

Our scope of review is dependency cases is well-settled:

The standard of review which this Court employs in cases of dependency is broad. In Re Custody of Neal, 260 Pa.Super. 151, 393 A.2d 1057 (1978). However, the scope of our review is limited in a fundamental manner by our inability to nullify the fact-finding of the lower court. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977). We accord great weight to this function of the hearing judge because he is in the position to observe and rule upon the credibility of the witnesses and the parties who appear before him. In Re Interest of Black, 273 Pa.Super. 536, 417 A.2d 1178 (1980); In Re Kunkle, 265 Pa.Super. 605, 402 A.2d 1037 (1979). Relying upon his unique posture, we will not overrule his findings if they are supported by competent evidence. Commonwealth ex rel. Morales v. Morales, 222 Pa.Super. 373, 294 A.2d 782 (1972).

In re: R.T., 405 Pa.Super. 156, 161, 592 A.2d 55, 57 (1991), quoting In re: Frank W.D., 315 Pa.Super. 510, 517, 462 A.2d 708, 711 (1983). The findings of the trial court are supported by competent evidence and will not be disturbed.

Appellant’s second issue is confusing and unclear. Appellant asserts that the evidence was insufficient to justify removing B.B. from appellant’s home. She contends the evidence is insufficient to support a finding of dependency, then acknowledges that B.B. was not found to be a dependent child. We discussed the sufficiency of the evidence swpra, and will not repeat our discussion. We agree with the trial court that the evidence supported the removal of B.B. from appellant’s home. Appellant asserts that if she had not agreed to place the child in the home of J.B., B.B. would have been placed in a foster home.

The trial court was correct in removing B.B. from appellant’s home and placing her in the home of her father, J.B., without a finding of dependency. In In re Justin S., 375 Pa.Super. 88, 543 A.2d 1192 (1988), this court held that a finding of dependency could not be madé where the noncustodial parent “is ready, willing, and able to provide the child with proper parental care and control, especially when the lower court finds that the child was abused while under the custodial parent’s care and control.” Id., 375 Pa.Super. at 103, 543 A.2d at 1199. The trial court was correct in finding that while B.B. was an abused child, she was not a dependent child since her father was ready, willing, and able to provide her with proper care. See also In re: J.C., 412 Pa.Super. 369, 603 A.2d 627 (1992).

Order affirmed.

      . Due to the nature of the injuries and their location, there also was some concern initially that B.B. had been sexually abused. An examination by an obstetrician/gynecologist on November 20, 1991, determined that there had not been sexual abuse.