text:
    589 A.2d 1147
    COMMONWEALTH of Pennsylvania, Appellee, v. Steven M. TRUNZO, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1990.
    Filed April 23, 1991.

      Joseph E. Buckley, Jr., Brookville, for appellant.
    Timothy P. Morris, Asst. Dist. Atty., Reynoldsville, for Com., appellee.
    Before ROWLEY, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This case involves an appeal from the order of June 28, 1990, sentencing the defendant/appellant (Steven M. Tranzo) to ninety days probation for underage drinking (18 Pa.C.S. § 6308(a)). We affirm.

The facts, viewed in a light most favorable to the verdict-winner, reveal that Officer Kevin C. Bickle, of the Brooks-ville Borough Police Department, received a radio call at approximately 12:10 a.m. to proceed to the Days Inn to investigate a “problem”. Officer Bickle came to the conclusion that the matter involved underage drinking. He “assumed” this was the problem since he had been to the inn on “numerous other occasions just like this”, and “normally with that kind of information at that time on Sunday, it has something to do with underage drinking.”

Upon arriving at the scene, Officer Bickle interviewed those present, one of whom was the appellant. In the course of his investigation, the officer learned that the appellant was nineteen years old. Additionally, in questioning the appellant, the officer detected an “odor” of alcohol on the appellant’s breath, and, moreover, obtained an admission to drinking two Coors Light beers.

Based on Officer Bickle’s “training and experience” (eleven years on the police force), and the believability that there was “possibly” other alcohol somewhere in the vehicle, he conducted a search of the interior of the appellant’s vehicle. At that time, the appellant was standing outside of the vehicle and to the rear portion of the driver’s side, the door to which had remained open since the police’s arrival.

When no alcoholic beverages were found inside the vehicle, Officer Bickle asked, but was refused initially, to search the vehicle’s trunk. After the officer explained to the appellant that a warrant could be obtained to conduct the search, during which time his vehicle would be impounded, the appellant “finally opened the trunk”, and the police discovered eight bottles of Coors Light. The beer was seized and the appellant was issued a citation for underage drinking.

After the completion of the Commonwealth’s case, counsel for the appellant asked the trial court to “reconsider” the denial of his motion to suppress. It appears that counsel for the appellant had not filed a formal omnibus pre-trial motion and attempted to argue orally his suppression claim prior to the commencement of the bench trial. The court denied the motion since it had not been raised timely, i.e., during the time-span between the hearing before the District Justice and thé trial de novo before Common Pleas Court.

Nonetheless, thereafter, the trial court permitted counsel for the appellant to present testimony to refute the Commonwealth’s version of the case. This took place through the testimony of Steven M. Tranzo.

Tranzo recounted telling the constable his age and denying he consumed any alcohol. When he refused to open the trunk of his vehicle, the police were summoned. With their arrival, the appellant again refused, repeatedly, to open the trunk to his automobile, even with the officer’s threatened use of force, impoundment of his vehicle and the securement of a warrant if consent were not given to search the vehicle.

The appellant’s version presented the police as individuals who “pulled” his car keys from his hand to open the trunk and wherein bottles of Coors Light were located and confiscated. With this recovery, the appellant tells of being asked by Officer Bickle whether he “drank two beers,” to which he answered, “Yes”.

At the close of the case, counsel for the appellant argued that the warrantless search was improper in the absence of exigent circumstances and the use of coercion by the police to secure entry into the trunk. Moreover, counsel argued that the police lacked even “reasonable suspicion” that a crime had been committed and that the appellant had committed it.

Counsel for the Commonwealth retorted that consent to search had been established and was not vitiated by alleged “threats” against the appellant, the latter of which was the product of “incredible” testimony by the accused. Further, counsel for the Commonwealth stated that the police acted properly given the (1) odor of alcohol, (2) admission, (3) knowledge by the police of the appellant’s age, (4) knowledge by the police that one under twenty-one is prohibited from consuming alcohol, and (5) awareness that the appellant drove to Days Inn.

The trial court refrained from ruling on the legality of the warrantless search because this was reflective of a “possession” of alcohol charge and the appellant had been cited for “consumption” of alcohol. As a result, the trial court concerned itself with focusing on the officer’s testimony that he smelled alcohol on the appellant’s breath, and, consequently, found him guilty of underage drinking in violation of Section 6308(a).

Post-trial motions were filed and denied by an order dated May 2, 1990. In an accompanying opinion, the trial court wrote that it “may have erred” in holding the appellant guilty of violating Section 6308(a) based upon the police’s testimony that he smelled alcohol on the appellant’s breath where the Commonwealth failed to establish that the beverage consumed contained 0.50% (or more) of alcohol by volume. Likewise, the trial court considered the voluntariness of the appellant’s admission to drinking to be “somewhat suspect”.

Nevertheless, the trial court held that the police had probable cause to search the trunk, notwithstanding the appellant’s statement to the contrary, and the contents found therein constituted a violation of Section 6308(a). Probable cause to search was premised upon: (1) the odor of alcohol on the appellant’s breath, (2) the fact that the appellant was nineteen years of age, (3) the fact that the appellant’s car door was open when the police arrived at the scene, and (4) the officer’s experience that the area was a known drinking site for underage individuals.

With regard to sentencing, this was imposed on June 6, 1990, and directed that the appellant be placed on probation for six months, pay the cost of prosecution, pay the sum of $150.00 for the use of Jefferson County, and the appellant was required to (“shall”) participate in and complete successfully a Juvenile/Adolescent Alcohol Intervention Program at Gateway Clinic. Thereafter, by order dated June 28, 1990, the court amended the period of probation (“sentencing”) to extend for only a period of ninety days. This appeal followed from the entry of the June 28, 1990, order.

The first issue posed claims that the trial court erred in convicting the appellant of “consuming” alcoholic beverages, in violation of Section 6308(a), “based solely on the citing officer’s testimony that he allegedly detected the odor of alcoholic beverages on [the appellant’s] breath.” More specifically, counsel for the appellant contends that the “key” factor in justifying a reversal of the appellant’s conviction is the Commonwealth’s failure to present evidence that the appellant “consumed beverages that contained at least 0.50% alcohol by volume,” a requirement, the satisfaction of which is, necessary to establish a contravention of Section 6308(a).

Before addressing the appellant’s challenge to the sufficiency of the evidence, we need to dispose of the second question proffered, i.e., whether the warrantless search of the vehicle, from which was seized eight Coors Light beers and looked to by the trial court as the basis for the Section 6308(a) violation, was permissible?

There is no indication that the search was effectuated incidental to an arrest, or justified by exigent circumstances or was consensual, so as to dispense with the securement of a warrant. See State v. Spellman, 153 Conn. 65, 212 A.2d 413 (1965); 45 Am.Jur.2d, Intoxicating Liquors, §§ 469, 470 (1969). Consequently, it needs to be decided whether Officer Bickle had probable cause to believe that a summary offense was being committed in his presence. No authority justifies an arrest without a warrant for a summary offense committed beyond the presence of an arresting officer in the absence of a statute giving that right. See Miles v. Com., Dept. of Trans., 8 Pa.Cmwlth. 544, 304 A.2d 704, 707 (1973).

The offense for which the appellant was charged with committing and ultimately convicted, a violation of Section 6308(a), is a summary offense. The method by which proceedings for a summary offense can be instituted are governed by Pa.R.Crim.P. 51, which provides:

Rule 51. MEANS OF INSTITUTING PROCEEDINGS IN SUMMARY CASES
Criminal proceedings in summary cases shall be instituted either by:
(a) issuing a citation to the defendant; or
(b) filing a citation; or
(c) filing a complaint; or
(d) arresting without a warrant when arrest is specifically authorized by law.

Accordingly, the only permissible arrest without a warrant for a non-traffic summary offense occurs where the arrest “is specifically authorized by law.” Additionally, in the Comment to Pa.R.Crim.P. 70, in discussing procedures to follow in summary cases when a defendant is arrested without a warrant,

It is intended that these proceedings will be instituted by arrest only in exceptional circumstances such as those involving violence, or the imminent threat of violence, or those involving a danger that the defendant will flee.

At bar, the police issued the appellant a citation for underage drinking because the appellant had “admitted drinking two (2) Coors Light beers” and was in “possession” of eight Coors Light beers while under the age of 21. Thus, the issuance of the citation, versus arresting the appellant, was the correct procedure to follow. See Commonwealth v. Shillingford, 231 Pa.Super. 407, 332 A.2d 824 (1975), Commonwealth v. Pincavitch, 206 Pa.Super. 539, 214 A.2d 280 (1965), and contrast with United States v. Crutchfield, 418 F.Supp. 701 (W.D.Pa.1976). No evidence of violence, the threat of violence or the appellant fleeing discounted the need to resort to an arrest of the accused. See Comment to Rule 70. Therefore, the question we need to resolve is under what circumstances can police conduct a warrantless search of a vehicle incident to a summary offense.

Albeit it is true that the general practice in nontraffic summary cases is to issue a citation and not arrest, see Shillingford, supra; Pincavitch, supra; Rules 51 and 70, this does not prohibit the conducting of a warrantless search of a vehicle where police have probable cause to believe that evidence of a crime is concealed within the vehicle. See, e.g., Commonwealth v. Jenkins, 401 Pa.Super. 580, 585 A.2d 1078 (1991); State v. Spellman, supra. The fact that the vehicle may be impounded does not curtail the police’s right to conduct the warrantless search.

More to the point, in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the United States Supreme Court recited the conditions under which a warrantless search of an automobile would be tolerated; viz.:

In terms of the circumstances justifying a warrantless search, the Court has long distinguished between an automobile and a home or office. In Carroll v. United States, 267 U.S. 132 [45 S.Ct. 280, 69 L.Ed. 543] (1925), the issue was the admissibility in evidence of contraband liquor seized in a warrantless search of a car on the highway. After surveying the law from the time of the adoption of the Fourth Amendment onward, the Court held that automobiles and other conveyances may be searched without a warrant in circumstances that would not justify the search without a warrant of a house or an office, provided that there is probable cause to believe that the car contains articles that the officers are entitled to seize. The Court expressed its holding as follows:
“We have made a somewhat extended reference to these statutes to show that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.
“Having thus established that contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant, we come now to consider under what circumstances such search may be made. * * * [Tjhose lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official, authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise ____
“The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported.” 267 U.S. at 153-154, 155-156 [45 S.Ct. at 285-286].

The Court also noted that the search of an auto on probable cause proceeds on a theory wholly different from that justifying the search incident to an arrest:

“The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.” 267 U.S. at 158-159 [45 S.Ct. at 287],

399 U.S. at 48-49, 90 S.Ct. at 1979-1980. To the same effect see Commonwealth v. Shaffer, 447 Pa. 91, 104, 288 A.2d 727, 735 (1972), wherein it was written:

As we recently stated in Commonwealth v. Dussell, 439 Pa. 392, 266 A.2d 659 (1970), the stopping of an automobile or the arrest of the driver of a motor vehicle for an ordinary traffic offense does not without more, permit a warrantless search of the vehicle. To justify such a search, even though a movable vehicle is involved, an officer must have independent probable cause to believe that a felony has been committed by the occupants of the vehicle, or that it has been used in the furtherance of the commission of a felony, or the officer must have a basis for believing that evidence of a crime is concealed within the vehicle, or that there are weapons therein which are accessible to the occupants. See Commonwealth v. Dussell, supra, and authorities cited therein.

Quoting Commonwealth v. Lewis, 442 Pa. 98, 101, 275 A.2d 51, 52 (1971) (Emphasis deleted). Accord Commonwealth v. Bailey, 376 Pa.Super. 291, 296, 545 A.2d 942, 944 (1988).

What is to be garnered from the Chambers line of cases is the precept that where facts show that the police had probable cause to believe that evidence of a crime is located within the lawfully stopped vehicle, this same probable cause transcends the stop to “justiffy] the search of every part of the vehicle and its contents that may conceal the object of the search.” Jenkins, supra, 401 Pa.Super. at 590, 585 A.2d at 1083, quoting United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572 (1982).

In adherence with the law just recited, we find that Officer Bickle had a “basis for believing that evidence of a crime (a Section 6308(a) violation) was concealed within the vehicle.” For example, the officer received a call from Constable Willis Bish that he “had a problem” and the police were “needed ... at the inn.” Officer Bickle had been to Days Inn on numerous occasions on similar calls. Therefore, given the time (12:00 a.m.), day (Sunday) and information relayed (“a problem” needed attending), he “assumed” that the problem had “something to do with underage drinking.” Once at the site, Officer Bickle questioned the appellant and ascertained his age (19), as well as detecting an “odor” of alcohol on the youth’s breath. The appellant also was observed standing next to the driver’s side of a vehicle which had its door open.

Thus, looking at all of the circumstances in a commonsense ¿million and through the eyes of a “trained and expei . ' cod” officer, we hold that Officer Bickle’s “assumption” escalated to “reasonable” grounds upon the completion of his investigation. As such, the police acted properly in securing access to the appellant’s vehicle and retrieving the beer.

Having concluded that the police acted lawfully in entering the trunk of the appellant’s vehicle, we may now turn to the issue of whether the evidence presented was sufficient to convict the appellant of violating Section 6308(a); it reads:

A person commits a summary offense if he, being less than 21 years of age, attempts to purchase, purchases, consumes, possesses or knowingly and intentionally transports any liquor or malt or brewed beverages, as defined in section 6310.6 (relating to definitions).

As amended 1988, March 25, P.L. 262, No. 31, § 10, effective in 60 days, 18 Pa.C.S. § 6308(a) (Supp.1990).

It is the appellant’s contention that absent proof from the Commonwealth that the beverage he consumed contained at least 0.50% of alcohol by volume, as referred to in 18 Pa.C.S. § 6310.6,

... the prosecution clearly did not meet its burden of proof beyond a reasonable doubt under Section 6308(a). In other words, in order for odor on one’s breath alone to be sufficient to convict defendant, said odor would have to equate to a percentage of alcohol by volume in the amount of 0.50% (or more). The prosecution presented no evidence to that effect. Rather, the prosecution based its case on “evidence” which the trial court refrained from considering in its ultimate decision.

Appellant’s Brief at 6-7 (Emphasis in original).

Although the trial court admitted that it may have erred in finding the appellant guilty of Section 6308(a) solely upon Officer Bickle’s testimony of smelling alcohol on his breath, see Trial Court Opinion at 6; N.T. 38, the entire opinion of the trial court needs to be read to appreciate that this same fact was viewed in tandem with other evidence in validating the warrantless search of the appellant’s vehicle. For example, on the last page of the trial court’s opinion, mention is made of the officer detecting the odor of alcoholic beverages on the appellant’s breath and looking to it as.a factor in upholding' the warrantless search. It is not that the trial court discounted totally the efficacy of the odor of alcohol. On the contrary, it merely utilized it in conjunction with the other evidence before the officer in deciding the search question.

The trial court had before it testimony indicating an odor of alcohol on the appellant’s breath and the seizure of eight Coors Light beers from his vehicle, both elements of which we find sufficient to sustain the appellant’s conviction for contravening Section 6308(a). See Commonwealth v. Weller, 399 Pa.Super. 168, 581 A.2d 1390 (1990), which affirmed the judgment of sentence for the misdemeanor of furnishing alcohol to a minor. 18 Pa.C.S. § 6310.1.

The evidence at trial was that the appellant had purchased two cases of Coors beer for two minors. The beer was presented as an exhibit at trial.

It was the appellant’s argument that the Commonwealth failed to prove every element of a Section 6310.1 violation when no evidence was offered concerning the alcoholic content of the Coors beer. In dismissing the appellant’s claim, the Weller Court wrote:

In the case before us, the record indicates that not only did the minors testify that appellant furnished beer to them, but an investigating state police trooper also testified that he obtained from the minors seven cans of beer which appellant had given them. Additionally, these seven cans of Coors beer were presented as an exhibit at trial. Had the seven cans of beer been properly offered and received into evidence at trial, then the sufficiency of the evidence presented could not be questioned, as we take judicial notice of the fact that Coors Lite [sic ] beer is a malt or brewed beverage satisfying the statutory definition.
More recently, in Commonwealth v. Tau Kappa Epsilon,[ ] 385 Pa.Super. 247, 560 A.2d 786 (1989), we concluded that the Commonwealth’s evidence was sufficient to support the jury’s finding that appellants served malt or brewed beverages to minors in violation of § 493(1) of the Liquor Code. In that case, appellants, fraternities at Penn State University, were found guilty of furnishing beer to minors in violation of § 493(a) of the Liquor Code. As part of an investigation, members of the State College Bureau of Police Services made visits to fraternity houses during social functions and observed beer being served to minors. The investigators testified at trial to that effect, in addition to the testimony of the minors. We distinguished the holding in [Commonwealth v.] Erney, [212 Pa.Super. 174, 239 A.2d 818 (1968)] on the basis of this additional testimony of the investigating officers and held that the Commonwealth was not required to perform a chemical test to establish the exact alcohol content of the beer. The testimony of the minors in conjunction with that of the investigating officers was sufficient to support the jury’s conclusion that appellant furnished malt or brewed beverages to minors____

399 Pa.Super. at 171-172, 581 A.2d at 1391. See also In Re: ABC, A Juvenile, 12 Adams County L.J. 142 (1971), Commonwealth v. Boyer, 63 Lanc.L.Rev. 51 (1970), aff’d 219 Pa.Super. 756, 281 A.2d 349 (1971) and contrast with In Re Kauffman, 215 Pa.Super. 110, 257 A.2d 313 (1969).

In light of Weller and Tau Kappa Epsilon, the prosecution need not have produced a chemical test of the beer seized from the appellant’s vehicle and reading 0.50% or more to constitute a violation of Section 6308(a). The testimony of Officer Bickle, indicating the detection of an odor of alcohol emanating from the appellant, and the seizing of Coors Light beer from the appellant’s vehicle contemporaneously thereto constitute sufficient evidence to affirm the appellant’s conviction and order entering judgment of sentence for violating Section 6308(a).

Order affirmed.

MONTGOMERY, J., concurs in the result.

      . It appears that a constable contacted Officer Bickle by radio and informed the police "he needed [them] at the inn."

      . To the extent that the trial court found the appellant’s "admission” to consuming alcohol "suspect”, it could be read as a "re-assessment” of credibility, giving the conflicting versions offered by the officer and the appellant on the "admission” issue, after a verdict of guilty had been entered. N.T. 39. This type of post-verdict credibility re-evaluation is not favored in the law. Cf. Commonwealth v. Stark, 526 Pa. 1, 584 A.2d 289 (1990).
      The court's decision finding the appellant guilty of underage drinking because of the "odor” of alcohol detected by Officer Bickle, of necessity, discounted the "admission” in reaching its decision. N.T. 38. Perforce, the matter was closed and could not have been resurrected in a post-verdict context. Stark, supra. Accordingly, we do not look to this disputed evidence in our assessment of the case.

      . As is well known, the judgment in a criminal case is the sentence and not the conviction; final judgment in a criminal case means sentence. See Commonwealth v. Smith, 322 Pa.Super. 389, 469 A.2d 676, 679 (1983). To the extent that the appeal is from an order, as compared to the judgment of sentence imposed, we find the misnomer to be a procedural defect not impacting upon the jurisdiction of this Court to entertain the appeal. See, e.g., Dalkiewicz v. Redevelopment Authority of Luzerne County, 403 Pa.Super. 244, 588 A.2d 932, 933 n. 1 (1991); Commonwealth v. Gussey, 319 Pa.Super. 398, 466 A.2d 219, 220 n. 1 (1983). Thus, we see no need to remand for the entry of a formal judgment of sentence to rectify the misnomer attached to the appeal taken by the appellant. However, we would advise the parties and the court alike to be conscious of the need to comply with the Rules of Criminal Procedure to avoid a disregard for the form in which a case is to proceed through the judicial process. Id.
      For edification purposes, given counsel for the appellant’s admitted “confusion" as to whether he could have filed a formal omnibus pretrial motion to suppress in Common Pleas Court, as compared to raising it orally at pre-trial following the District Justice’s finding the appellant guilty of the summary offense of underage drinking, we would point out that since Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981) (en banc), it has been the practice in this Commonwealth that:
      “once an appeal is taken to the Court of Common Pleas [from a summary conviction], ... all general provisions of the criminal rules become applicable to the trial de novo unless specifically made inapplicable [e.g., Rules 1100 and 316].’’ Id., 288 Pa.Superior Ct. at 294 & n. 5, 431 A.2d at 1054 & n. 5. Accord Commonwealth v. Pringle, 304 Pa.Super. 67, 450 A.2d 103 (1982); Comment to 1982 edition of Pa.R.Crim.P. 67 (“Upon appeal from a summary judgment and after a finding of guilty at a trial de novo in the court of common pleas, Rule 1123 is intended to require post-verdict motions in the common pleas court”).

        Gussey, supra, 319 Pa.Super. at 402 n. 3, 466 A.2d at 221 n. 3.

      . The intrusiveness sought to be minimized by opting to impound a motorist's vehicle is no more effective than by pursuing to search the same vehicle without the benefit of a warrant. Each circumstance has its level of invasion of one’s privacy. In both instances, we need to be concerned with determining whether sufficient probable cause exists to justify the intrusion. See Commonwealth v. Bailey, 376 Pa.Super. 291, 545 A.2d 942 (1988). Furthermore, the right of the police to conduct a warrantless search of an automobile, even where the impoundment of the vehicle could have taken place while a warrant was being obtained, is not precluded since “immobilization has been held to be an alternative, not a requirement." Commonwealth v. Baker, 518 Pa. 145, 541 A.2d 1381, 1383 (1988).
      And, the fact that the offense believed to have been committed, underage drinking, was a summary offense does not render inapposite the probable cause standard to believe that the law was being or had been violated because a "summary” offense is considered a "crime" for which the panoply of punishments (imprisonment, fine and/or probation) attach. See Interest of Golden, 243 Pa.Super. 267, 365 A.2d 157 (1976).

      . The trial court did not rule upon the voluntariness of the appellant’s opening of the trunk to the vehicle, which the police testified occurred after the accused was advised that the vehicle would be impounded until a search warrant could be obtained if the trunk were not opened.
      The appellant testified that the key was removed forcibly from his hand by the police and used to enter the trunk. We need not resolve this credibility issue since it is not within our bailiwick to do so. Rather, we deem it sufficient to find that the police had probable cause to believe that the trunk contained contraband. See Chambers v. Maroney, 399 U.S. 42, 48-49, 90 S.Ct. 1975, 1979-1980, 26 L.Ed.2d 419 (1970). Accordingly, the search was proper.

      . The predecessor to the present statute read:
      § 6308. Purchase, consumption, possession or transportation of intoxicating beverages

        A person commits a summary offense if he, being less than 21 years of age, attempts to purchase, purchases, consumes, possesses or transports any alcohol, liquor or malt or brewed beverages.
      18 Pa.C.S. § 6308 (1983) (amended in 1988).

      . Section 6310.6 defines malt or brewed beverages as:
      Any beer, lager beer, ale, porter or similar fermented malt beverage containing 0.50% or more of alcohol by volume, by whatever name such beverage may be called.

      . Since the "admission” of the appellant to consuming alcohol was not considered by the trial court in establishing the validity of the search of the appellant’s vehicle, we may not rely upon it in assessing the sufficiency of the evidence question. See note 2, supra.

      . This writer filed a dissenting opinion in Tau Kappa Epsilon, supra, in which I expressed the view, which did not garner a majority vote, that the criminal nature of the charge necessitated that proof of the alcoholic content of the beer was a condition precedent to sustaining any conviction under the Liquor Code.
      The position espoused by the majority in Tau Kappa Epsilon, and endorsed by Weller, supra, is the law until altered by our Supreme Court. Accordingly, precedent having been established, this Court will adhere to the rulings enunciated under Weller and Tau Kappa Epsilon, the latter of which has been granted allocatur by the Pennsylvania Supreme Court. See 525 Pa. 581, 575 A.2d 112 (1990).

      . We would note, as an aside, that Section 6308(a) proscribes the “possession” of alcoholic beverages by one under 21 years of age. Instantly, with the seizure of the Coors Light beer from the appellant’s vehicle, it would have been proper to uphold the appellant’s conviction for either being in actual possession of the beer or having exercised a conscious dominion or control over the beverage. Cf. Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727, 735 (1972). This could have occurred, notwithstanding the appellant’s and the Commonwealth’s reference in their respective briefs that “consumption" of the beer is being challenged on appeal. The trial court merely stated that, premised on the seizure of the beer by the police from the appellant’s vehicle, it found that a contravention of Section 6308(a) had occurred. This could just as likely be read to endorse a "possession” charge under Section 6308(a) against the appellant. In either instance, the conviction and judgment of sentence should stand.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    589 A.2d 1155
    Rebecca A. KELLY, a minor, by her parents and natural guardians, Jodie L. KELLY and David L. Kelly; and Jodie L. Kelly and David L. Kelly, in their own right, v. LUTHERAN CHURCH IN AMERICA, a corporation; the Central Pennsylvania Synod of the Lutheran Church in America, a corporation; St. Luke’s Evangelical Lutheran Church; St. John’s Evangelical Lutheran Church of Black Township; and Sanner & Hauger Cemetery Association, Inc., a/k/a Sanner Cemetery Association; Norman B. Hay; Wilber Z. Snyder; David T. Snyder; Dale Hauger; Harry Romesberg; and Nevin Hay. Appeal of ST. LUKE’S EVANGELICAL LUTHERAN CHURCH (Three Cases). Appeal of ST. LUKE’S EVANGELICAL LUTHERAN CHURCH OF BLACK TOWNSHIP. Rebecca A. KELLY, a minor, by her parents and natural guardians, Jodie L. KELLY and David L. Kelly; and Jodie L. Kelly and David L. Kelly, in their own right, Appellants, v. LUTHERAN CHURCH IN AMERICA, a corporation; the Central Pennsylvania Synod of the Lutheran Church in America, a corporation; St. Luke’s Evangelical Lutheran Church; St. John’s Evangelical Lutheran Church of Black Township; and Sanner & Hauger Cemetery Association, Inc., a/k/a Sanner Cemetery Association; Norman B. Hay; Wilber Z. Snyder; David T. Snyder; Dale Hauger; Harry Romesberg; and Nevin Hay, Appellees. Appeal of Harry ROMESBERG.
    Superior Court of Pennsylvania.
    Argued Oct. 17, 1990.
    Filed April 12, 1991.

      Anita B. Folino, Pittsburgh, for appellant (at No. 432) and for Kelly, appellees (at Nos. 429, 430, 431 and 551).
    Michael L. Magulick, Pittsburgh, for Lutheran Church, appellee.
    Richard L. McMillan, Pittsburgh, for Cent. Pa. Synod of the Lutheran Church, appellee.
    Before ROWLEY, WIEAND and FORD ELLIOTT, JJ.
   WIEAND, Judge:

In this action to recover damages for personal injuries sustained by a child when a cemetery tombstone fell on her, the trial court entered summary judgment in favor of two defendants, the Lutheran Church in America (LCA) and the Central Pennsylvania Synod of the Lutheran Church in America (the Synod). In this appeal by the plaintiffs and several other defendants, it is contended that LCA and the Synod, as parent bodies, were subject to liability for the alleged negligent maintenance of the offending church cemetery. After careful review, we agree with the trial court that LCA and the Synod had no right to control the manner in which the cemetery was maintained and affirm the court’s order entering summary judgment.

The case arose out of an accident which occurred on October 24, 1984, on property known as the “Sanner Cemetery.” Rebecca Kelly, a minor, sustained injuries when a tombstone fell on her while she was playing in the cemetery. Thereafter, her parents, David and Jodie Kelly, filed an action to recover damages as a result of their daughter’s injuries. The defendants named in the action included: the Sanner and Hauger Cemetery Association (Cemetery Association); six named members of the Cemetery Association ; St. John’s Evangelical Lutheran Church (St. John’s); St. Luke’s Evangelical Lutheran Church (St. Luke’s); the Central Pennsylvania Synod of the Lutheran Church in America (Synod); and the Lutheran Church in America (LCA). The basis for the claim was the alleged negligent maintenance of the cemetery. The claim against the Synod and the LCA was founded upon a contention that they had acquired a right to own, possess, and control the cemetery property upon the closing of St. John’s Church in 1971 by virtue of language in their respective constitutions. The trial court determined as a matter of law, however, that St. John’s had not “closed” but had merged with St. Luke’s and that neither the Synod nor the LCA had any ownership interest in the cemetery property.

The LCA is a nationwide hierarchical religious denomination incorporated under the laws of Minnesota. It is divided into thirty-three (33) synods, each of which is a separate, nonprofit corporation having its own constitution and bylaws. The LCA grants each synod wide discretionary powers and some specific duties which include the care of member congregations. Each member congregation is a separate entity which also has its own constitution and bylaws. Affiliation with the LCA is voluntary, but membership requires a congregation to abide by the direction of the synod and the LCA. Under the LCA constitution, member congregations retain authority to control and maintain their own property. “The governance of the LCA and its synods and the member congregations is provided in the constitution or bylaws of the LCA, the several synods and the local congregations.” Roth v. May, 98 Pa.Commw. 104, 106, 510 A.2d 908, 909 (1986).

St. John’s and St. Luke’s are member congregations of the Central Pennsylvania Synod of the LCA. The record shows that St. John’s owned, possessed and maintained the land on which the cemetery is situated in Black Township, Somerset County, Pennsylvania, since approximately 1906. At a meeting of St. John’s church council on April 19, 1949, trustees of a cemetery association were appointed for the purpose of caring for and maintaining the cemetery. The cemetery association was incorporated in 1959 as the “Sanner and Hauger Cemetery Association.”

Services and other church functions were held at St. John’s until 1971, when a majority of the congregation voted to merge with the neighboring congregation of St. Luke’s. Upon merger of the two congregations, the assets of St. John’s were transferred to the new church, which became known as St. Luke’s. The church building previously occupied by the congregation at St. John’s was dismantled and sold. Proceeds from the sale were used to purchase a marker located in the cemetery which reads “In Memory of St. John’s Lutheran Evangelical Church, 1845— 1971.” In 1981, the Cemetery Association filed an affidavit of possession and a claim of adverse possession to the cemetery. No order has been entered on this claim. It was in 1984 that Rebecca Kelly, while playing in the cemetery, sustained an injury which resulted in the current action. The subject of our review is the ownership of the cemetery.

Summary judgment may properly be entered only if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. 1035(b). The moving party has the burden of persuading the court that no genuine issues exist as to the material facts. Summary judgment may be entered only where the case is free from doubt. Hower v. Whitmak Associates, 371 Pa.Super. 443, 445, 538 A.2d 524, 525, allocatur denied, 522 Pa. 584, 559 A.2d 527 (1988). In passing upon a motion for summary judgment, moreover, a court must examine the record in the light most favorable to the non-moving party. Any doubt must be resolved against the moving party. French v. United Parcel Service, 377 Pa.Super. 366, 371, 547 A.2d 411, 414 (1988); Thorsen v. Iron and Glass Bank, 328 Pa.Super 135, 140-141, 476 A.2d 928, 930 (1984); Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982).

Laventhol & Horwath v. Dependable Ins. Associates Inc., 396 Pa.Super. 553, 558, 579 A.2d 388, 390 (1990). See also: Cobaugh v. Klick-Lewis, Inc., 385 Pa.Super. 587, 561 A.2d 1248 (1989). To succeed on their motions for summary judgment in this case, the Synod and LCA were required to show that there was no dispute as to the facts and that they were entitled to judgments as a matter of law. See: Laventhol & Horwath v. Dependable Ins. Associates Inc., supra, 396 Pa.Superior Ct. at 554, 579 A.2d at 388; Amabile v. Auto Kleen Car Wash, 249 Pa.Super. 240, 245, 376 A.2d 247, 249 (1977).

In order to predicate liability against the Synod and the LCA, evidence was necessary to show that these two hierarchical church entities had the right to control the mannér in which cemetery property was maintained. This required evidence of “either (1) an actual transfer of property from the congregation to the hierarchical church body or (2) clear and unambiguous documentary evidence or conduct on the part of the congregation evincing an intent to create a trust in favor of the hierarchical church body.” Orthodox Church of America v. Pavuk, 114 Pa.Commw. 176, 181, 538 A.2d 632, 634 (1988), allocatur denied, 519 Pa. 669, 548 A.2d 258 (1988). See also: Mikilak v. Orthodox Church in America, 99 Pa.Commw. 264, 513 A.2d 541 (1986), allocatur denied, 515 Pa. 602, 528 A.2d 958 (1987). The claim against LCA and the Synod is based upon the contention that St. John’s closed its doors and that its assets thereupon passed to the Synod and the LCA. It is based upon the general rule of law that a congregation belonging to a hierarchical membership cannot sever itself from the parent body without forfeiting its assets. See: Western Pennsylvania Conference of the United Methodist Church v. Everson Evangelical Church, 454 Pa. 434, 312 A.2d 35 (1973). However, this rule of law is not without exceptions. Thus, the local congregation and the parent church body may agree that the local church property is to remain subject to ownership and control by the local congregation. The general rule has no application, moreover, where two congregations of the same hierarchical body join by merger. In cases of merger, title to congregational assets passes to the surviving corporation. In the instant case, it is clear that St. John’s did not forfeit title to its assets to the parent bodies. St. John’s and St. Luke’s were joined by merger into one congregation under the name and style of St. Luke’s, and title to the assets of St. John’s passed to the surviving congregation.

Appellants contend that the lower court erred when it concluded that St. John’s had merged with St. Luke’s. They contend that there is evidence sufficient to permit a jury determination that St. John’s, in fact, had closed and ceased to exist. Therefore, they argue, title to the assets of St. John’s, including the cemetery, passed to the Synod and the LCA. We reject this argument.

Article VI, § 8 of the Constitution of the LCA provides as follows:

A synod may declare a congregation within its jurisdiction defunct if such congregation has disbanded, or if it has ceased to maintain religious services according to the tenets and usages of the Lutheran Church, or if its membership has so diminished in numbers or financial strength as to render it impracticable for such congregation to fulfill the purposes for which it was organized, or to protect its property from waste and deterioration. In such case, or if a congregation departs from membership in this church without the consent of a convention of the synod, all property of the congregation, real, personal and mixed, shall vest in the synod, its successors or assigns.

The constitution for the Central Pennsylvania Synod and the Approved Constitution for the Congregations of the LCA contain substantially similar provisions.

Article VI, § 11 of the LCA’s Constitution provides:

The executive body of the synod to which the affected congregation belongs shall be charged exclusively with the responsibility to make all determinations, whether of a secular, doctrinal or ecclesiastical nature, relevant to the administration of Sections 7 and 8 of this article, and its decision shall be final subject only to the right of appeal to a convention of the synod.

In this case, it is undisputed that neither the Synod nor the LCA ever exercised actual control over the cemetery property. There also has never been a determination by the Synod that either St. John’s or St. Luke’s was defunct. The LCA’s Constitution enumerates circumstances which act as conditions precedent to any action taken by the Synod to declare a congregation defunct. The language thereof indicates that a Synod’s declaration of dysfunction is a specific prerequisite to the vesting of any property rights in the Synod or the LCA. Cf. Trinity Lutheran Evangelical Church v. May, 112 Pa.Commw. 557, 537 A.2d 38 (1988) (declaration of dysfunction by synod is prerequisite to vesting of property rights in synod). Moreover, neither congregation has done anything which would necessitate discipline by the Synod or cause the Synod to assume control of its property. In the absence of such a condition precedent, which would lead to a declaration of dysfunction, property rights cannot vest in the Synod or the LCA.

The record is clear that the merger of the congregations of St. John’s and St. Luke’s took place in 1971 after a merger had been voted upon favorably by both congregations and approved by the Synod. It is recorded im records of the Synod as a merger of congregations. The fact of merger established by the documents forming a part of the hierarchical records is not altered by deposition testimony by a pastor of St. Luke’s and several officers of the cemetery association who referred to a “closing” of St. John’s in 1971. Although St. John’s closed its doors and discontinued services in 1971, it did so because its members had joined by merger with St. Luke’s. Under these circumstances, the title to its assets, as well as the duty of maintaining them, passed to St. Luke’s and not to the Synod or LCA.

Because St. John’s did not sever its relationship with the Synod or LCA, but merged with another Lutheran Church of the same synod, its assets were not forfeited to a parent body but passed to the surviving congregation by merger. It is the surviving body which controlled those assets on the date of the minor plaintiff’s unfortunate accident and to which claimants must look for damages in the event negligent maintenance of the cemetery is found to be related causally to such injuries.

The summary judgment entered in favor of the Lutheran Church in America and the Central Pennsylvania Synod of the Lutheran Church in America is affirmed.

      . Although the Sanner and Hauger Cemetery Association did not appeal from the order, the individual members of the association did join in the appeal.

      . Article Nine, section III, item 4 of the Central Pennsylvania Synod constitution provides:
      Any congregation, belonging to the Synod, which has disbanded, or which in the opinion of the Executive Board has ceased or failed to maintain religious worship or services according to the tenets and usages of the Lutheran Church, or whose membership has so diminished in numbers or financial strength as to render it impossible or impracticable for such congregation to fulfill the purposes for which it was organized to protect its property from waste and deterioration, shall be deemed by the synod to be defunct, and the synod ... shall take charge and control of the property of said congregation to hold, manage and convey the same in behalf of the synod.
      Article VI, § 8 of the Approved Constitution for the Congregations of the LCA provides:
      If this congregation a) disbands, b) ceases or fails to maintain religious worship or services according to the tenets and usages of the Lutheran church, c) departs from membership in the Lutheran Church in America without the consent of the synod, or d) so decreases in numbers or financial strength as to render it impracticable for the congregation to fulfill the purposes for which it was organized or to protect its assets from waste and deterioration, the synod to which the (name of congregation) belongs shall have the right to take charge and control of all property of the congregation and thereafter to hold, manage and convey the same at the discretion of the synod.

      . It is not necessary to our decision to determine whether the cemetery association is an independent body or remains subject to control by St. Luke’s, the surviving church congregation. In either event, the right to control the manner in which the cemetery is maintained has not been vested in the Synod or LCA.


author: CAVANAUGH, Judge:

text:
    589 A.2d 1160
    Nina JOHNSON, Appellee, v. Russell DIESINGER, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1990.
    Filed April 24, 1991.

      Frederick C. Horn, Lansdale, for appellant.
    Neil Hurowitz, King of Prussia, for appellee.
    Before CAVANAUGH, OLSZEWSKI and FORD ELLIOTT, JJ.
   CAVANAUGH, Judge:

Russell Diesinger, the father of two girls, ages 4 and 6 at the time of trial (6 and 8 now), appeals from an order granting partial custody rights to the children’s maternal grandmother pursuant to 23 Pa.C.S.A. § 5311. The statute provides visitation or partial custody to grandparents after the death of the child’s parent. Because we feel the extent and frequency of custody granted by the trial court are excessive and amount to an abuse of discretion, we vacate and remand for further proceedings consistent with this opinion.

Appellee, the maternal grandmother, testified that before her daughter’s death, she and her husband shared a close relationship with her daughter and appellant. She characterized her relationship with her grandchildren as “very, very close.” Her entire testimony regarding her relationship with her grandchildren before the final illness of her daughter was:

I was there with [appellant] to bring them home from the hospital. I was there for their christening. I came down for their birthdays. [My husband] and I drove down to be with them Christmas Day.

She also testified that at various times when her daughter was hospitalized with cancer she moved into the home of appellant and her daughter pursuant to her daughter’s wishes. She cared for the children and the household on several occasions during the seven months before her daughter’s death and then continuously for approximately five months afterward while appellant was mourning for his wife. Thereafter appellee moved back into her own home and for a time appellant allowed visits to continue. Once appellant met a woman and planned to remarry, relations with appellee turned sour. Appellant began either refusing or limiting visitation and finally told appellee not to visit until after the wedding. Appellee brought this action for partial custody.

The trial court granted primary physical custody to appellant with the following partial custody rights in appellee:

One weekend a month during the months of February, March, May, June, September and October.
Every Labor Day extended weekend.
Every Christmas school vacation from 12/27 until 12/31.
Three consecutive week-days of every Easter/Spring school vacation.
The Friday through Sunday following Thanksgiving each year.
Three weeks during the school summer vacation each year.

By our calculations, during a typical year with a total number of 172 school-free days, the order requires them to be with their grandmother 46 days or approximately one fourth of the children’s free time. We find that based on the uncontroverted facts established at trial the partial custody granted was excessive and overly burdensome.

The statute authorizing grand-parental visitation rights provides the following:

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. The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application.

23 Pa.C.S.A. § 5311.

Appellant asserts that the trial court failed to consider the best interests of the children and that the visitation schedule interferes with the parent-child relationship. We agree.

This court has stated that the Custody and Grandparents Visitation Act did not alter the present state of the law, but merely codified law which had evolved through various appellate decisions dealing with grandparents’ rights in seeking visitation and/or custody. The guiding polestar remains the best interests of the child. Hughes v. Hughes, 316 Pa.Super. 505, 463 A.2d 478 (1983). In reviewing child custody contests, an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support the trial court’s factual conclusion, and may not interfere with those conclusions unless they are unreasonable in light of the trial court’s factual findings, and thus, represent a gross abuse of discretion. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984). This court’s scope of review is broad and requires an independent examination of the evidence before reaching its conclusion. We need not accept a finding of fact which has no competent evidence to support it. Bury v. Bury, 312 Pa.Super. 393, 458 A.2d 1017 (1983). Normally in matters such as the hours of a visitation, great deference should be given to the hearing judge, who was in a better position than the appellate court to assess the particular circumstances. However to fulfill its own responsibility an appellate court should not accept a finding that is not supported by, or is contradicted by the record. Id.

After reviewing the record as a whole,” we feel the court lost sight of the polestar in any dispute over custody—the best interest of the children. During the hearing the trial court stated:

The problem I have is who is really at fault. That’s where this case is going to rise and that’s where this case is going to fall. I have warned everyone. (N.T. p. 84).

During cross-examination appellant, when asked if appellee should have contact with the children, responded:

I think she should have contact with the children. I would like it to be that it didn’t interfere with what we are trying to do in building a family, sir.
THE COURT: Why does it have to interfere? ...
THE WITNESS: Your Honor, the children have five school days off for Christmas. You gave her five school days.
THE COURT: She hasn’t seen the children, that’s why. I was trying to get the message across that she’s got the right to see these children____ If in fact I do come down with an order that’s going to grant Christmas, it’s not going to be five days ... (N.T. p. 180).
I want to tell you something. If I was to have known that she was going "to make these other things, I would have said to her, look, if you want to make them for our daughters, make them for the others—I wouldn’t have gone out and got new ones____ I wouldn’t have made a big deal out of the second one. (N.T. p. 184).

Then during the direct examination of appellant’s wife, with respect to the costumes the court stated:

Why can’t you do something else? Why can’t you just say I’ll do something else? You knew this was already established. I’ll make a big deal out of Thanksgiving. You come in here and tell me you have the same interests. I’ve got the same interests—never mind. You’ll never understand. I’m beating a dead horse. (N.T. p. 192).

A thorough reading of the transcript and the trial court’s 46 page opinion leaves one with the impression that the court arrived at the conclusion that appellant is unworthy and that appellee, as a more worthy grandparent, is entitled to extensive custody. The court attempts to reward appellee by allowing her more time with the children. This is improper. The substantial rights of the parties that must be considered here and which are of paramount importance are the best interests of the children, not the interests of the litigants. Heddings v. Steele, 344 Pa.Super. 399, 496 A.2d 1166 (1985), affirmed, 514 Pa. 569, 526 A.2d 349 (1987). The trial court appeared to be primarily concerned not with the best interest of the children but with finding the origins of the discord between the litigants. In an action such as this the children are not a prize to be awarded to the winner, they are the person whose interests must be protected.

The court failed to consider evidence presented by appellant regarding the children’s best interests. The record discloses that the order requires appellee to make long distance trips to pick up the children as appellee lives 215 miles from appellant. The round trip requires between eight and ten hours driving time. Many times appellee will be returning to her home with the children at 10:00 PM after being on the road since noon. Appellant’s expert witness recommended against the children spending two day weekends with their grandmother because of the distance. Although the court accepts the expert’s testimony on other points, this recommendation is not addressed in its opinion. We find that the frequency of the visits ordered by the trial court given the long distance appellee must travel with the children, four to five hours each way over a forty-eight hour period, to be unreasonable.

Appellant’s expert also recommended, because of the traumatic loss of their mother at a young age, that the children spend no more than one week at a time away from appellant and his wife. The court’s opinion fails to address this recommendation as well and the order allows for up to three consecutive weeks of custody in the summer. The very substantial amount of time the order provides for appellee with the children is more in line with shared custody awarded in a divorce action than partial custody awarded a grandparent. See, Suroviec v. Mitchell, 347 Pa.Super. 399, 500 A.2d 894 (1985) (Maternal grandparents with whom children lived for three years before mother’s death, allowed to visit with children five hours on third Sunday each month). Even in a custody dispute between the natural parents the distance between the parents’ homes may preclude week-end visits. See, Fisher v. Fisher, 370 Pa.Super. 87, 535 A.2d 1163 (1988). There is no question that appellee provided much needed love and support at a turbulent time in the children’s lives. But the purpose of the Act is not to replace a mother with a grandmother as the primary caregiver but to continue a healthy relationship if to do so is in the child’s best interest.

As we said above, the polestar of any child custody dispute is to reach a decision which serves the best interests of the child. The factors to be considered include the child’s physical, intellectual, emotional and spiritual well-being. Beers v. Beers, 342 Pa.Super. 465, 493 A.2d 116 (1985). Nowhere in its extensive opinion does the court perform this detailed, child-centered, analysis as required by the statute.

In a dispute between a parent and a third party, including a relative such as a grandparent, the parent has a prima facie right to custody which will be forfeited only if convincing reasons appear that the child’s best interest will be served by an award to a third party____ As the amount of time requested moves the visit further from a visit and closer to custody, the reasons offered in support of the request must become correspondingly more convincing.

Commonwealth ex rel. Zaffarano v. Genaro, 500 Pa. 256, 455 A.2d 1180 (1983), (adopting language from Commonwealth ex rel. Williams v. Miller, 254 Pa.Super 227, 385 A.2d 992 (1978)), also Bishop v. Piller, 399 Pa.Super. 52, 581 A.2d 670 (1990) (Paternal grandmother sought visitation rights with child). The amount of time granted appellee by this order necessitates a substantial showing that the custody is in the best interests of the children. We feel that given the animosity between the parties here and the great distance between their homes, appellee has not sustained the burden required for the extensive partial custody rights granted her.

The trial court noted on the record that despite the animosity between the litigants, the children seem to be happy and healthy. See, Fatemi v. Fatemi, 339 Pa.Super. 590, 489 A.2d 798 (1985) (Father’s actions in removing children to Iran without mother’s knowledge and later to Bermuda in order to thwart mother’s custody rights did not warrant loss of custody where children were thriving in his care). Our Supreme Court has recognized that the rivalry between parents and grandparents for a child’s affection can be devastating. The appropriate inquiry when animosity exists is not where to place the blame but rather how does it affect the best interests of the children. Zaffarano, Supra, (petition for partial custody denied where it was not in child’s best interest to be placed in cross-fire between father and grandparents). By focusing on where to place the blame for the discord, the trial court lost sight of the function it is charged with performing. We conclude therefor, that the trial court committed reversible error by failing to take into consideration how this discord affects the children and how it interferes with the parent-child relationship.

On remand the court should address the animosity between the parties involved and how it affects the best interest of the children and the parent-child relationship. The court should also address the distance between the parties’ homes, the testimony of appellant’s expert and the limited contact appellee had with the children before her daughter’s death. The court must state the facts supporting its determination with respect to the best interest of the children. Furthermore, when performing the analysis, the court must not impose its own moral standard on the litigants. We must keep in mind that the parents in any custody dispute have a prima facie right to uninterrupted custody and the more time awarded to the grandparent the more convincing the evidence must be that the award is in the best interest of the children.

Order vacated and case remanded for proceedings consistent with this opinion.

      . We point out the following instances where the trial court’s conclusions are not supported by the record.
      A) The court concluded that the practice of hand making Halloween costumes was enjoyed by the petitioner before the death of the children’s mother. (Opinion p. 33). The record shows that it was actually the decedent who made the children’s costumes.
      B) The court concluded that the appellant’s current wife is the primary source of this conflict and that appellee currently holds no ill will toward appellant or his wife. At trial, the court stated on the record, ‘‘[Y]ou both look at each other and you both take the most negative position you can take from the standpoint that the other person does. Now in the beginning, I don’t believe that was true of Mrs. Johnson, but she’s that way now too.”
      C) The court opined that from the birth of the children onward, Mrs. Johnson was an active participant in the events of their lives. Holidays, vacations, and important milestones all were shared. (Opinion p. 36). Petitioner testified only that she was there at the children’s births, christenings, birthdays and Christmas.
      D) In its opinion the court states that appellant refuses to give appellee "appropriate credit for raising her daughter, Shirley, into the wonderful woman that he had married____” The record shows however, that when asked, "Don’t you think Mrs. Johnson deserves some credit for raising Shirley properly?” appellant responded in the affirmative. N.T. p. 168.
      These instances tend to indicate a certain slant placed on the facts by the court that We need not adopt.

      . The order appealed from granted five days custody each Christmas.

      . Appellee attempted to continue the tradition, formerly practiced by her daughter, of making Halloween costumes for the children. Appellant’s new wife also wished to carry on the tradition. The court erroneously concludes that appellee and not her daughter shared this tradition with the children.

      . The custody order provides that the children will be with appellee the long weekend after every Thanksgiving.

      . The trial court stated:
      There can be no accurate measurement of the overwhelming importance of petitioner to the lives of Laura and Katherine Diesinger during this period, [just after the death of their mother.] She not only shared a large amount of time with the children, but it was time when they were most dependant. It is difficult to envision any grandparent being more involved with their grandchildren than was petitioner. Nor can this court conceive of a person more worthy of receiving the panoply of rights contained in [the Act]. (Opinion p. 37).
      and:
      Moreover, her efforts on behalf of the children during the months of their mother’s sickness and death and their father’s subsequent depression bordered on the heroic. (Opinion p. 30).

      . The record shows that appellee has a daughter two and one half hours away from appellant where custody may sometimes occur. The order does not specify the use of this site but leaves the question of location to the better judgment of appellee.

      . Appellant also asserts that it was an abuse of discretion to: limit his telephone access to the children during weekends with appellee, refuse to consider testimony regarding personal hygiene and upbringing, refuse to hear additional testimony relating statements made by appellee against appellant in the presence of the children. Because we find, based on the record presented, that the weekend visits are contrary to the best interests of the children, we need not address the telephone issue. As personal hygiene and upbringing are integral to the best interests of the children, these factors should be discussed by the court. Finally based on the finding that the children were coached by appellant, the court was justified in denying appellant’s request for an additional evidentiary hearing where to grant such a hearing would place pressures on the children recognized as devastating by the Zaffarano court.

      . The trial court must never impose its own moral code upon the litigants in a custody dispute, rather it must determine how the interests of the children will be best served. McAnallen v. McAnallen,
        300 Pa.Super. 406, 446 A.2d 918 (1982). Here the trial court at various times stated references to his own childhood and the important role his grandparents played. The childhood memories of the court do not enter into the fact-specific best interest determination. The court must state the facts of record upon which the best interest determination is based.


author: BROSKY, Judge. CIRILLO, President Judge,

text:
    589 A.2d 1165
    Catherine A. CARRETTI, Appellant, v. Scott SCHWANGER, David P. Moyer, and Moyer’s Truck Service, Inc.
    Superior Court of Pennsylvania.
    Argued Dec. 11, 1990.
    Decided April 29, 1991.

      David W. Knauer, Mechanicsburg, for appellant.
    Stephen E. Geduldig, Harrisburg, for appellees.
    Before CIRILLO, President Judge, and JOHNSON and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from a judgment denying appellant’s post trial motions after her trial on an action against appellees ended in a non-suit. Appellant raises three numbered issues asserting that the granting of appellee’s non-suit constituted the overruling of another judge on the same issue, that the granting of a non-suit denied appellant a jury determination and that the evidence was sufficient to allow the case to go to the jury. We vacate and remand for a new trial.

Appellant was employed by appellee Moyer’s Truck Service in a clerical capacity. Her job duties consisted of answering the phone, setting up appointments, bookkeeping and payroll. Her hours were from 8:00 A.M. to 5:00 P.M. with a one hour lunch and she was obligated to punch a time clock at the beginning and end of each day and at lunch time. Although her duties did not include picking up lunches for the other employees, she often would do so when she went out to lunch and, occasionally, the other employees would do the same when they went out to lunch. Appellant was injured in a motor vehicle collision which occurred while she was riding with a company employee in a company vehicle to a McDonald’s restaurant.

As lunch approached on the day of the accident she told the boss and other employees that she was going to McDonald’s and asked the other employees if they wanted her to bring back food for them. Appellant testified that the other employees gave her money to cover the food items they wanted. However, appellee Moyer indicated in deposition that he gave appellant money and asked her to pick up sandwiches for the guys. Moyer also told her she could have a ride with another employee, Scott Schwanger, as he had to pick up some parts anyway. Appellant punched out as she left for McDonald’s with Schwanger. On the way to McDonald’s the vehicle appellant was riding in and being driven by Schwanger was involved in an accident.

Appellant indicated at trial, in a suit seeking damages for injuries sustained, that she rarely was asked to run errands for work and that virtually all of her responsibilities required her presence in the office. Appellee Moyer did not testify at trial. However, portions of his deposition were read into evidence by appellant. At the close of her case, counsel for appellee moved for a non-suit arguing that the injury was sustained in the course of her employment and that therefore, the Workmen’s Compensation Act provided immunity to the employer and fellow employee. This motion was granted and appellant’s action was dismissed. Post trial motions were filed but denied. This appeal followed.

Although the only factual contention where the testimony appears to be at odds is whether appellant’s fellow employees gave appellant money for their lunches or whether appellee Moyer gave her the money, there are nuánces in characterization that are very relevant to the determination of the issue in question. We would note, however, that with regard to the granting of a non-suit, it would have been erroneous for the trial court to grant the non-suit unless the benefit of the doubt were given to appellee on all key factual issues, including whether the employees gave her the money. The trial court was not sitting as . fact finder and it would constitute an usurpation of the jury’s function to decide these facts against appellee on a mid-trial motion. In any event, based upon the evidence available to the trial court when the non-suit was granted, we must conclude that it was erroneous to grant the motion.

The trial court summarizes the evidence and indicates that appellant went for lunch at the “request” of Moyer. Although, the usage of the word “request” is not qualified or explained by the trial court, nor are we capable of ascertaining the connotation of that word held by the trial court, it is clear that Moyer did not request appellant to go for lunch in the sense that she was obligated by her position to do so. Moyer’s deposition testimony indicates that appellant told Moyer she was going for lunch and Moyer responded that Scott was going for parts, he then gave her money and said “why don’t you pick up sandwiches for the rest of the employees and ride with Scott.” This suggestion appears to have been motivated by the fact that “she was going to take her own car.” Moyer was then asked “[s]o that was basically a matter of courtesy then, that wasn’t a job function of hers? She wasn’t assigned to go get lunch?” To which he responded, “No. No, she wasn’t.” At a different point in the deposition Moyer indicated that he didn’t regularly buy lunch for his employees, but that once in a while he did it to keep up morale. The whole of the testimony reveals that appellant indicated she was going to lunch at McDonald’s and voluntarily offered to pick up food for the other employees. Appellee Moyer then offered her a ride with a fellow employee during which she was injured. We cannot conclude that this evidence dictates a finding that she was injured in the course of her employment so as to be covered under the Workmen’s Compensation Act.

The general rule provides that employees are on their own time at lunch and an off-premises injury is not sustained in the course of one’s employment. However, there are exceptions to this rule and the determination of whether or not appellant was in the course of her employment when she was injured revolves around whether she was actually engaged in the furtherance of her employer’s affairs at that time. Tatrai v. Presbyterian University Hospital, 497 Pa. 247, 439 A.2d 1162 (1982). Despite the fact that such a phrase could be given a very broad reading, a review of certain cases makes clear that this requirement means a direct or immediate furtherance of the business affairs of the employer. A mere indirect or incidental benefit to the employer will not satisfy the standard. For instance, in Tatrai an employee at the hospital became ill and was directed to go to the emergency room for treatment. While being treated she was injured. The hospital argued, as does the employer here, that the employee had been injured in the course of her employment. One argument advanced in support of this position was that it was necessary for the hospital to have healthy employees so that they could properly perform their functions and treat patients. Thus, her treatment was an action in furtherance of the employer’s affairs. Although this argument has possible theoretic merit, our Supreme Court was unconvinced by this argument calling such benefit an indirect one.

Similarly, in Workmen’s Compensation Appeal Board v. Hickory Farms of Ohio, 28 Pa.Cmwlth. 30, 367 A.2d 730 (1976), the Commonwealth Court considered a case where an employee was injured while taking work home at the time she was injured. In denying compensation for the accident, the court stated that the act in which the employee was engaged when injured must be done by order of the employer, and not simply for the convenience of the employee. The court noted that the employer never requested that the claimant take the work home with her, rather, she took the work home because she wished to spend the majority of the next day at home.

Drawing upon these decisions we believe it was error to grant the non-suit. Although appellant agreed to bring sandwiches back from lunch, engaging in this task can hardly be thought of as “in furtherance of the employer’s affairs” as outlined in the above decisions. It was not the duty or regular custom of the employer to provide lunch for the employees; nor were special circumstances established that necessitated that lunch be brought in that day to further the affairs of the employer. Appellant was clearly not ordered/requested to go for sandwiches, she was on her own time when she went and indicated she was going to the restaurant in any event. Furthermore, the act of getting sandwiches would provide, at best, only an indirect or incidental benefit to the employer, and the provision of a ride by appellee Moyer was done primarily for appellant’s convenience. These facts do not turn an essentially personal trip into a “business” one. Compare this case with the situation found in Speight v. Burens, 371 Pa.Super. 478, 538 A.2d 542 (1988). There an employee went to lunch with his employer to discuss certain work problems and other work projects. On the way back from lunch the employee was injured in a motor vehicle collision. We found there that the lunch was a business lunch and the employee was engaged in activity in furtherance of his employer’s affairs. The purpose of discussing work problems and projects was construed by us as providing a direct benefit to the employer. The same cannot be said here.

For the above reasons, we cannot conclude that the evidence established that appellant was engaged in activity in furtherance of her employer’s affairs when she sustained the injuries in question. As such, the Workmen’s Compensation Act does not provide an immunity from suit and the non-suit was erroneously granted. Appellant’s post trial motion should have been granted.

Judgment vacated. Case remanded for a new trial.

CIRILLO, President Judge, files a dissenting opinion.

CIRILLO, President Judge,

dissenting:

Since I believe that the appellant, Catherine A. Caretti, was acting in furtherance of her employer’s business or affairs when she was injured, I would affirm the trial court’s decision. Hence, I dissent.

The appellant was employed by Moyer’s Truck Service. Her duties were primarily clerical and were performed on the employer’s premises. The appellant clearly was not required to obtain lunches for other employees, yet, on occasion the appellant would get lunch for the other employees.

On the date of the accident, appellant had informed her employer and the other employees that she was going to a McDonald’s restaurant. The appellant asked her fellow employees if they wanted anything from McDonald’s. While the appellant claims that the other employees gave her money to pay for their lunches, the employer maintains that he gave the appellant money to buy lunch for the other employees. The employer also told the appellant that she could ride to McDonald’s with another employee, Scott Schwanger, who had to leave the premises to get parts for the employer. Before leaving her place of employment, the appellant punched out. On the way to McDonald’s, the company owned vehicle driven by Schwanger was involved in an accident and the appellant was injured.

The appellant filed suit against her employer seeking damages for her injuries sustained in the accident. The case proceeded to trial, and at the close of the appellant’s case, the employer moved for a compulsory nonsuit, see Pa.R.C.P. 230.1, stating that since appellant’s injuries were sustained in the course of her employment, the Workmen’s Compensation Act (“Act”) provided the exclusive remedy and that consequently her common law action was barred. See 77 P.S. §§ 411, 481(a). The trial court granted the employer’s motion for a nonsuit, post-trial motions were denied and this timely appeal followed. On appeal, the appellant essentially argues that the trial court erred in granting the employer’s motion for a nonsuit.

A motion for a compulsory nonsuit permits a defendant to test the sufficiency of a plaintiff’s evidence. Storm v. Golden, 371 Pa.Super. 368, 373, 538 A.2d 61, 63 (1988). “A court may grant a compulsory nonsuit if ‘the jury, viewing all the evidence and all reasonable inferences arising from it, in the light most favorable to the plaintiff, could not reasonably conclude that the elements of a cause of action have been established.’ ” Brock v. Owens, 367 Pa.Super. 324, 328, 532 A.2d 1168, 1170 (1987) (quoting Mazza v. Mattiace, 284 Pa.Super. 273, 277, 425 A.2d 809, 811-812 (1981)). The grant of a compulsory nonsuit will be affirmed on appeal only where it is inconceivable, after viewing all the evidence in the light most favorable to the plaintiff, that the controlling issue could be determined in plaintiffs favor. Stevens v. Commonwealth Department of Transportation, 89 Pa.Commw. 309, 311, 492 A.2d 490, 492 (1985).

The Act provides the exclusive remedy for an individual whose injuries fall within the purview of the Act. 77 P.S. § 481(a); Speight v. Burens, 371 Pa.Super. 478, 480, 538 A.2d 542. 543 (1988). An employee’s injury is compensable under Act if the injury arises “in the course of his [or her] employment.” 77 P.S. § 411(1). “The term ‘injury arising in the course of employment’ shall include all other injuries sustained while the employee is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer’s premises or elsewhere ...” 77 P.S. § 411(1). See Speight, supra. Thus, for an employee’s injury to be compensable under the Act the employee must demonstrate that the injury “arose in the course of his [or her] employment and that it was causally connected with his [or her] work.” Speight, 371 Pa.Super. at 483, 538 A.2d at 544. Whether an injury arose in the course of one’s employment is a question of law to be determined on the basis of the applicable facts. Id. Further, the courts have clearly stated that the term “course of employment,” as used in the Act, shall receive a liberal construction. Id. See Epler v. North American Rockwell Corp., 482 Pa. 391, 393 A.2d 1163 (1978); Mann v. City of Philadelphia, 128 Pa. Commw. 499, 563 A.2d 1284 (1989).

Here, the appellant was an employee whose functions, most often, required her presence in the office. Consequently, she was a “stationary employee,” not a “travelling employee.” The course of employment for a “travelling employee” is broader than that of a “stationary employee”. Speight, 371 Pa.Super. at 483, 538 A.2d at 544. There is a presumption that the “travelling employee” was engaged in the furtherance of his or her employer’s business at the time the injury occurred. Id. However, where as here, the employee works primarily at the business site the phrase “course of employment” is narrowly interpreted. Id.

In such cases the general rule is that a trip away from the employer’s premises is unrelated to the employer’s business, and an injury occurring during that time period is not sustained “in the course of employment” within the meaning of the [Act].

Id. See also 82 Am Jur 2d § 272 (1976). In Peccon v. Francis Market, 207 Pa.Super. 36, 215 A.2d 261 (1965), the employee of a local market was injured when she tripped and fell on a public sidewalk during her lunch period for which she was not paid. This court denied the employee workmen’s compensation benefits stating:

[W]hen claimant left her employer’s premises, with the express or implied consent of her employer, and selected her own place to lunch, her employment ceased and she was on a personal mission which had no relation to the business in which her employer was engaged. From the time of her departure until her return to her place of employment, she was not “in the course of employment” as contemplated by the Compensation Act. Her status was not affected whether she selected her own lunch hour or whether she had a fixed time for lunch. Her leaving the premises was a matter that was purely personal and bore no relation to the duties which she was required to perform.

Peccon, 207 Pa.Super. at 39, 215 A.2d at 262-263. In Speight, the employee was injured while returning from lunch with his employer. Speight, 371 Pa.Super. at 484, 538 A.2d at 545. While at lunch, Speight discussed business with his employer. Id. Consequently, this court found that the employee’s injuries which occurred while returning from this business lunch arose “in the course of employment,” and that the employee’s common law action against his employer was barred by the Act. Id.

In Peccon, it was fairly clear that the employee was on a purely personal venture, unrelated to her employment. Conversely, in Speight it was equally clear that the employee, who was injured while returning from a business luncheon with his employer, was engaging in the furtherance of the employer’s business or affairs. Instantly, we are faced with a more difficult set of circumstances. Nonetheless, we must determine whether the employee’s trip to McDonald’s was in furtherance of her employer’s affairs, or was a purely personal venture unrelated to her employment. See Speight, supra; Peccon, supra. The majority concludes that the facts of this case did not turn an essentially personal trip into a "business” one. I disagree.

Initially, we, in accordance with our standard of review, must assume that the employees gave the appellant their own money to purchase lunch. Further, it is clear that the employee “punched out” before she left with Schwanger and that consequently she was not being paid during her lunch hour. It is also apparent that purchasing the other employees’ lunches was not part of the appellant’s job. However, appellant, on this occasion, was getting lunch for the remaining employees while those employees continued to work. Further, the appellant, at the employer’s suggestion, rode to McDonald’s in a company owned vehicle with another employee while that employee was on a business errand.

Consequently, my review of the record in the requisite light reveals that the circumstances surrounding the employee’s trip to McDonald’s had both personal and business attributes. Because we are required to give the Act a liberal construction, Speight, supra, I conclude that the appellant was acting in furtherance of the employer’s affairs while, at her employer’s suggestion, she was riding in a company owned vehicle to obtain lunch for herself and the other employees who remained on the work premises. Therefore, I would affirm the trial court’s decision to grant the employer’s motion for a nonsuit.

      . Appellant’s statement of questions involved is as follows:
      I. Did the trial judge err when he overruled the decision of Judge Dowling denying the Defendants’ motion for summary judgment based solely on the Workmen’s Compensation Act and granted the Defendant’s motion for nonsuit based solely on the Workmen's Compensation Act?
      II. Did the trial judge err when he granted the Defendants’ motion for nonsuit thereby depriving the Plaintiff of the jury trial she had demanded?
      III. Did the evidence entitle the Plaintiff to go to the jury?


author: MONTEMURO, Judge:

text:
    590 A.2d 9
    PENNSYLVANIA ACADEMY OF FINE ARTS, v. Thelma GRANT, Trustee of Residuary Trust Under the Will of Max Grant, Deceased, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 9, 1991.
    Filed March 21, 1991.
    Reargument Denied May 21, 1991.

      Jeffrey R. Lerman, Philadelphia, for appellant.
    Miles H. Shore, Philadelphia, for appellee.
    Before WIEAND, MONTEMURO and HESTER, JJ.
   MONTEMURO, Judge:

This is an appeal from an Order granting appellee’s motion for summary judgment in a landlord tenant action.

Appellee is the lessee and appellant the lessor of a certain piece of property in Center City Philadelphia used as a parking lot. On January 30, 1989, the lease, which was to expire on July 31, 1989, was assigned by the then tenant, Mellon Bank (East) N.A., to appellee as successor in interest. The lease contained an option to purchase clause which specified that it was to be exercised at least six months prior to the expiration date. A letter dated January 30, 1989, the same day as the assignment of the lease, and containing the necessary deposit check to notify appellant of appellee’s intent to exercise the option, was mailed the following day, January 31, postage prepaid, certified mail, return receipt requested. On February 28, appellant responded, returning the check on grounds that because she had received no communication concerning exercise of the option until February 3, 1989, she considered the notice invalid. Appellee brought suit to enforce the lease, and appellant raised as defenses the timeliness of the notice, as well as allegations of environmental violations and tax irregularities in breach of the lease. Appellee successfully moved for summary judgment, and this appeal followed.

The standard enunciated by Pa.R.C.P. 1035, establishes that summary judgment is properly granted, “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.”

In passing upon a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party ... It is not part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. Any doubt must be resolved against the moving party ... The court, in ruling on a motion for summary judgment, must ignore controverted facts contained in the pleadings ... The court must restrict its review to the material authorized by Rule 1035 to be filed in support of and in opposition to the motion for summary judgment and only those allegations in the pleadings that are uncontroverted.

Washington Federal Savings and Loan v. Stein, 357 Pa.Super. 286, 289, 515 A.2d 980 (1986) (citations omitted) (emphasis in original).

The material fact advanced here about which appellant first claims controversy is appellee’s notice of its intention to exercise the purchase option. Appellant argues that because the notice was received five months and twenty eight days rather than six months prior to expiration of the lease, as is specified in the the lease’s language, there is a material issue of fact as to whether notice was timely. The thrust of the issue is whether notice became effective upon mailing or upon receipt.

The trial court found that there was no provision in the lease document to indicate when notice became effective; the one section germane to the issue specified only the method of giving notice. Citing the Restatement (Second) of Contracts, § 63 Comment F, Williston on Contracts, § 83 3rd ed. 1951, and 1A Corbin on Contracts § 264 (1963), the trial court found the general rule to be that the exercise of a leasehold option is effective upon receipt in the absence of a contrary intent expressed by the parties.

Despite these findings, however, the trial court then held that the general rule notwithstanding, the instant case was governed by Chanoff v. Fiala, 440 Pa. 424, 271 A.2d 285 (1970). There our supreme court held that exercise of an option was timely, and the seller bound thereby where the buyer’s check was mailed the day before expiration of the option period, even though it was not received until after the initial offer expired. Although Chanoff differs in several respects from the instant case, none of these divergences are relied upon in the Supreme Court’s rationale for its ruling. Specifically, there had been a course of dealing between the parties which would seem to indicate less than scrupulous attention to deadlines on appellant’s part, the notice was mailed the day before the expiration date of the option, and the deposit check had been placed in appellant’s account. Nevertheless, the Court based its decision on the “mailbox rule,” stating:

In the instant case, buyer mailed to seller a check for $10,000 on the day before the offer was due to expire. This was a timely acceptance: “ ‘Where the use of the mails as a means of acceptance is authorized or implied from the surrounding circumstances, the acceptance is complete by posting the letter in normal mail channels, without more. Restatement, Contracts § 66; 1 Williston, Contracts, § 83 (3rd ed. 1957).’ ” Falconer v. Mazess, 403 Pa. 165, 168-169, 168 A.2d 558, 559 (961) (footnote omitted) (quoting Meierdierck v. Miller, 394 Pa. 484, 487, 147 A.2d 406, 408 (1959). Accord Warner v. Bedell Co., 278 Pa. 576, 578, 123 A. 490, 491 (1924) (dealing with an option). “Indeed it is clear that use of the mails was at least impliedly authorized in this case; a paragraph of the agreement specifically provides that all notices are to be sent by registered mail____”

Chanoff v. Fiala, 440 Pa. 424, 428, 271 A.2d 285, 287 (1970).

Despite the fact that the exercise of an options contract is considered effective only upon receipt, see, Murray on Contracts, §§ 43(B), 47(C) (3rd. ed. 1990) and authorities cited therein, the law in this Commonwealth is directed by the Supreme Court whose only pronouncement on the matter we have in Chanoff. We are therefore constrained to agree with the trial court that the notice mailed on January 31, 1989 constitutes an effective exercise of the purchase option.

Appellant also alleges that material issues of fact relating to other breaches of the lease agreement prevent enforcement of the option. The allegations relate to the existence of a ten thousand gallon underground gasoline tank on the premises which appellant contends is in breach of the lease provisions pertaining to environmental safety by violating both federal and local environmental regulations. She asserts too that contrary to the terms of the lease, appellee is delinquent in its payment of City use and occupancy taxes.

The trial court found that appellant had presented no proof of any legal action concerning the alleged environmental problem, only that there is a potential liability which may never materialize. Similarly, the court found that any tax irregularities concerned taxes levied on a previous tenant, not appellee, and that in any event they represented no liability to appellant as landlord. In fact, the only material presented in support of these allegations were affidavits signed by appellant herself accusing appellee of the purported breaches, and an affidavit from an attorney whose information consisted of hearsay provided by third parties.

Pa.R.C.P. 1035(d) states:
... Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matter stated therein.

The affidavits offered by appellant are disqualified in every respect, and therefore demonstrate no material breach of the lease as to either the environmental regulations or the tax irregularities. Nor, as a result, were there any disputed material facts before the court.

Order affirmed.

      . Section 801 reads in pertinent part as follows:

        Notices. All notices hereunder shall be in writing and shall be delivered or mailed by certified mail or registered mail.

      . The tank was installed by appellee’s predecessor in interest, Mellon Bank.