author: LIPEZ, Judge:

text:
    464 A.2d 411
    COMMONWEALTH of Pennsylvania v. Charles Edward WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 20, 1982.
    Filed July 29, 1983.
    Petition for Allowance of Appeal Denied Dec. 14, 1983.

      Jeffrey Schmehl, Assistant Public Defender, Reading, for appellant.
    George C. Yatron, District Attorney, Reading, for Com., appellee.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   LIPEZ, Judge:

Appellant Charles Edward Williams was convicted by a jury of rape, 18 Pa.C.S. § 3121, indecent assault, 18 Pa.C.S. § 3126, simple assault, 18 Pa.C.S. § 2701, and recklessly endangering another person, 18 Pa.C.S. § 2705. The charges arose from an incident in which, according to the Commonwealth’s evidence, appellant grabbed a fourteen-year-old girl who had been walking along a city street with a friend. He forced the girl at knifepoint into an abandoned house, where he raped her, then ran away. Based on a description given to police by the victim and her companion, appellant was arrested in a nearby bar after police had spotted him running away from the area where the rape had occurred and had seen him run into the bar. He was put into a police car and brought to the victim and her friend, both of whom identified him as the attacker. Appellant was then taken to police headquarters, where his clothes and other personal belongings were taken by police before he was put into a cell. A search warrant was secured for seizure of body samples from appellant, and these samples were taken at about 10:30 that night. Analysis of the clothing and body samples indicated that appellant could have committed the rape.

Appellant makes eight arguments for reversal of his conviction. The first four of these, which we shall address together, are general claims that the verdict is contrary to the law, the evidence, and the weight of the evidence and that the evidence is insufficient to sustain the verdict. We find them to be without merit.

In considering challenges to the weight and sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict winner—in this case, the Commonwealth. Commonwealth v. Cropper, 463 Pa. 529, 345 A.2d 645 (1975). The test to be employed in resolving these challenges is whether, accepting as true all the evidence, direct and circumstantial, which could properly have been the basis for the jury’s verdict, a finder of fact could reasonably have found that all the elements of the crimes had been proven beyond a reasonable doubt. Commonwealth v. Cheatham, 429 Pa. 198, 239 A.2d 293 (1968); Commonwealth v. Richbourg, 260 Pa.Super.Ct. 438, 394 A.2d 1007 (1978). Here, the Commonwealth’s evidence showed that the victim had been raped by a black man wearing dark pants, a dark jacket, a scarf and a print shirt. Appellant, who was subsequently identified by an eyewitness as the attacker,. was apprehended by police shortly after the rape only a few blocks from the house where the incident occurred, wearing only dark pants and a tee shirt. A brown jacket, a print shirt and an orange scarf were found discarded in various alleys near the scene of the incident. Tests performed on the victim revealed the presence of seminal fluid in her vagina, and tests performed on her underclothes showed that the semen was of blood type A, appellant’s blood type. Tests performed on appellant’s clothing revealed the presence of pubic hairs which exactly matched those of the victim. Although neither the victim nor the eyewitness could identify him positively at trial, there was testimony establishing that appellant was the man who had been identified as the rapist at the time of the incident, and showing that drastic changes in his hairstyle and facial hair might account for the difficulty in making the in-court identification.

Viewed as a whole, we think that the Commonwealth’s evidence, presented by credible eyewitnesses and experts, was sufficient to establish beyond a reasonable doubt all the elements of the crimes charged. We therefore find the verdict to be entirely in accordance with the law and the evidence, and reject appellant’s first four claims.

His remaining four claims are: (1) the court erred in refusing to suppress the identification of appellant by The victim’s companion and the physical evidence seized from appellant; (2) that the court erred in denying appellant’s petition to dismiss under Pennsylvania Rule of Criminal Procedure 1100; (3) that the court erred in ordering appellant to try on articles of clothing in the presence of the jury; and (4) that the court erred in admitting a blue print shirt and a knife into evidence. We reject all of these arguments and affirm the judgment of sentence.

I

Appellant’s first contention is that the court erred in denying his motion to suppress physical evidence seized from him and testimony as to the identification by the victim’s companion of appellant as the attacker. In considering such claims, we must determine whether the evidence supports the court’s factual findings and whether the legal conclusions drawn from those findings were legitimate. This determination is made considering only the evidence of the prosecution’s witnesses and so much of the defense evidence as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976); Commonwealth v. Hunt, 280 Pa.Super.Ct. 205, 421 A.2d 684 (1980). Findings supported by the record and legitimate legal conclusions drawn therefrom will not be disturbed. Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977).

A.

Appellant first argues that both the identification and the physical evidence should be suppressed because they flowed from his arrest, which he claims was made without probable cause. We find that because the police did have probable cause to arrest appellant, the arrest was legal and this argument for suppression must fail.

The standard to be used in assessing whether there was probable cause for a given arrest was set forth by this court in Commonwealth v. Jones, 271 Pa.Super.Ct. 528, 532, 414 A.2d 379, 381 (1979):

Probable cause to arrest existed if, at the time appellant was detained by the police, the facts and circumstances known to them and of which they had reasonably trustworthy information, were sufficient to warrant a prudent man in believing that appellant had committed the ... [crime]. Commonwealth v. Powers, 484 Pa. 198, 201, 398 A.2d 1013, 1014 (1979). The test is not one of certainties but one of probabilities dealing with considerations of everyday life. Commonwealth v. Dickerson, 468 Pa. 599, 605, 364 A.2d 677, 681 (1976). The facts known must be viewed from the vantage point of a prudent, reasonable, cautious police officer on the scene at the time of the arrest guided by his experience and training. Commonwealth v. Tolbert, 235 Pa.Super.Ct. 227, 230, 341 A.2d 198, 200 (1975).

Here, an eyewitness described the rapist to police as a black man with a mustache. Shortly after this description was broadcast, a police officer saw a man fitting this description running across a field near the scene of the incident. The man ran in front of the police car, stumbled when he saw it, then shouted that a girl needed help and pointed in the direction of the rape scene. The officer ordered the man to approach the police car, but he disregarded the order and continued to run away from the area where the rape had occurred. The police officer was unable to pursue him because construction made the road impassable, but he broadcast a further description of the individual, saying that he wore dark pants, a blue print shirt, and no jacket despite the winter temperatures. Another officer spotted a man fitting this description running a few blocks away, on the other side of the construction area. Upon seeing the police officer, the man stopped short and ran into a bar. The policeman followed him into the bar and arrested him there. The arrest occurred within approximately five minutes of the first report of the incident and only a few blocks away from the house where the rape had occurred. We think that the fact that appellant fit the description given by the victim and the eyewitness, taken together with appellant’s suspicious behavior in ignoring police orders to stop, his repeated attempts to escape or hide from police and the proximity of these events in both time and place to the rape justified the police in arresting him. We therefore find that there was probable cause for the arrest, and that neither the identification nor the physical evidence need be suppressed as fruits of that arrest.

B.

Appellant argues further that even if the arrest was valid, the identification should be suppressed. The record shows that the identification occurred about twenty-five minutes after the rape. Appellant was transported in a police car to an area near thát where the initial attack occurred. He was taken from the car, and stood near the car under a streetlight when the witness, standing on the sidewalk, was asked if he were the man who had attacked her friend. She answered that he was. Appellant contends that the fact that he was in police custody at the time of the identification was so suggestive as to render the witness’ identification of him as the assailant inadmissible. We disagree.

The standard to be used in determining the admissibility of identifications pursuant to “show-ups” like the one in this case is whether, viewing the totality of the circumstances, the identification was reliable even though the confrontation was suggestive. Manson v. Brathwaite, 432 U.S. 98, 106, 97 S.Ct. 2243, 2249, 53 L.Ed.2d 140 (1977). In dealing with such on-the-scene identifications, our courts have recognized that “the close proximity in time and place to the actual offense so enhances the reliability as to outweigh the prejudice” in most cases. Commonwealth v. Mackey, 447 Pa. 32, 36, 288 A.2d 778, 780 (1972). The factors to be considered in weighing reliability “include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of [her] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” Manson v. Brathwaite, supra, 432 U.S. at 114, 97 S.Ct. at 2253. Here, the witness was able to observe appellant at close range, although only for a brief time, on a lighted street. This view occurred under circumstances likely to increase her degree of attention and to impress the criminal’s face upon her memory. Although her description of the assailant was only general, she displayed absolute .certainty that appellant was the assailant when she confronted him, and this confrontation occurred within half an hour of the time of the crime. In light of these facts, the suggestiveness of appellant’s being brought to the scene in a police car and in police custody is insufficient to outweigh the reliability of the identification. Accordingly, we hold that testimony regarding the identification was properly admitted.

c.

Appellant also contends that the physical evidence seized from him after his arrest should have been suppressed on three grounds: first, that articles of clothing taken from him were not listed on the Receipt/Inventory of the search warrant; second, that the search warrant to obtain body samples was issued without probable cause; and third, that the search was conducted after 10:00 p.m. without authorization for a nighttime search. We reject all three of these arguments.

Appellant’s first ground for suppressing the physical evidence is meritless. The record is clear that the clothing taken from appellant was seized, not in connection with the search warrant, but as part of the processing procedures in connection with appellant’s arrest. The Pennsylvania Rules of Criminal Procedure require only that property seized pursuant to a search warrant be listed on the inventory, Pa.R.Crim.P. 2009, and it is therefore clear that the omission of appellant’s clothing from the inventory was proper. Appellant has not argued that seizure of the clothing as part of post-arrest processing was improper. Hence, we find no basis for disturbing the lower court’s admission of the clothing into evidence.

Appellant also argues that body samples (hair, pubic hair, blood and semen) obtained from him should have been suppressed because they were secured pursuant to a warrant issued without probable cause. He claims that because the probable cause affidavit failed to state by whom the identification which linked him to the crime was made, it was insufficient as a matter of law to justify issuance of the warrant. The warrant’s probable cause affidavit stated:

[A]t about 6:55 p.m. this date, police received a report of a black male accosting a 14 year old girl .... Arriving police immediately determined that a 14 year old girl had just been raped ... and the suspect was a black male. Within about 5 minutes, a suspect was arrested in close proximity to the crime scene and subsequently identified as the rapist. This individual was the above named Charles Edward Williams [appellant here].

In order to serve as the basis for issuance of a valid search warrant, the probable cause affidavit must set forth facts which give the issuing authority a basis for making an independent judgment that probable cause for the search exists. Commonwealth v. Luddy, 281 Pa.Super.Ct. 541, 422 A.2d 601 (1980) cert. denied, 454 U.S. 825, 102 S.Ct. 114, 70 L.Ed.2d 99 (1981). Where the statement recites facts outside the personal knowledge of the police affiant, the affidavit must set forth sufficient underlying circumstances to enable the issuing authority to judge not only the validity of the informer’s information, but also the reliability of the informer. Commonwealth v. Frazier, 269 Pa.Super.Ct. 527, 410 A.2d 826 (1979); see also Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). These affidavits must be read in a sympathetic, commonsense manner, with due regard for the hectic conditions under which they are often prepared, however. Commonwealth v. Luddy, supra. Here, it is true that the person identifying appellant as the rapist is not named and that no detail is given as to the reliability of that person or his or her basis for making the identification. However, reading the affidavit as a whole, as we must, Commonwealth v. Luddy, supra, we think that the fair implication of the statement is that the identification was made either by the victim or an eyewitness. Since an identification by either would be sufficiently reliable to serve as the basis for a finding of probable cause, we hold that the warrant was properly granted and that the evidence obtained pursuant to it was properly admitted.

Appellant argues further, however, that because the warrant did not authorize a nighttime search and the search was conducted after 10:00 p.m., the samples obtained pursuant to the warrant must be suppressed. Appellant’s argument is based on a misreading of Pennsylvania Rule of Criminal Procedure 2005(a), however. That rule requires that, unless otherwise authorized, the warrant must be served before 10:00 p.m. Here, although the Receipt/Inventory indicates that the search was completed after 10:00, there was testimony to the effect that appellant was taken to the hospital and served with the warrant shortly before 10:00. As there is thus support in the record for the trial court’s finding that the warrant was served before 10:00 in accordance with the rule, we will not disturb it. In light of that finding, we find appellant’s claim to be without merit, and hold that the body samples were properly admitted.

II

Appellant’s second claim is that the Commonwealth failed to exercise due diligence in bringing him to trial within the 180-day time limit of Pennsylvania Rule of Criminal Procedure 1100 and therefore that the Commonwealth’s petition to extend the time for trial was erroneously granted.

The lower court made the following findings, all of which are supported by the record. Appellant’s case had been listed for trial during the last week of jury trials before expiration of the 180 days. On the first two days of that week, however, defense counsel was engaged in trial of another matter and was unavailable for appellant’s case. Accordingly, the case was listed for Wednesday of the trial week. The prosecution then informed the court that one of its expert witnesses would be unavailable on Wednesday and Thursday because he had to testify in another case in federal court. Both appellant and the prosecution were ready to proceed with the trial on the Friday of trial week, but the case could not be commenced because the trial was expected to last more than one day and scheduling conflicts and vacations would prevent any of the county’s five judges from hearing the case during the following week.

Appellant contends that because the prosecution did not have all of its witnesses available for the entire trial week and because the case was not scheduled for the Friday of trial week, due diligence was not exercised by the Commonwealth and his case should have been dismissed. We disagree. “The test in determining whether the Commonwealth acted with due diligence is one of reasonableness under the circumstances.” Commonwealth v. Wroten, 305 Pa.Super.Ct. 340, 345, 451 A.2d 678, 681 (1982). Here, the Commonwealth was prepared to go to trial at the beginning of the trial week which preceded the Rule 1100 run date. It was defense counsel’s unavailability which delayed the trial until Wednesday of that week, when a key Commonwealth witness was unavailable.

When witnesses become unavailable toward the end of the Rule 1100 time period—whether through vacation, illness, or other reasons not within the Commonwealth’s control—the Commonwealth is prevented from commencing trial within the requisite period despite its due diligence and an extension of time is warranted.

Commonwealth v. Sinor, 264 Pa.Super.Ct. 178, 183 n. 5, 399 A.2d 724, 727-28 n. 5 (1979); see also Commonwealth v. Williams, 310 Pa.Super.Ct. 501, 507-08, 456 A.2d 1047, 1050 (1983) Commonwealth v. Sharp, 287 Pa.Super.Ct. 314, 317, 430 A.2d 302, 304 (1981). The fact that the witness in this case was required to testify elsewhere on two of the available trial dates was certainly a reason for his absence beyond the Commonwealth’s control, and we agree with the trial court that the resulting delay was not due to any lack of diligence on the part of the prosecution.

Nor do we find failure to commence trial on the last day of the trial week to be a failure of due diligence on the part of the Commonwealth. The record indicates that although judges and courtrooms were available on that day, appellant’s trial was expected to last for three days, thus extending into the following week. During that week, two of the county’s five judges were unavailable due to vacations. The remaining three judges were scheduled to hear other matters throughout the week. Such judicial delay justifies an extension of time if the Commonwealth is ready to proceed. Commonwealth v. Wroten, supra 305 Pa.Super.Ct. at 345, 451 A.2d at 681. We therefore hold that the Commonwealth’s petition to extend the time for trial was properly granted.

Ill

Appellant’s third contention is that the court erred in ordering him, in the jury’s presence, to try on a shirt and jacket found near the scene of the crime. Our review of claims like this is limited, for it is well established that the trial court has wide discretion to permit experiments and demonstrations of this type. See, e.g. Commonwealth v. Laniewski, 427 Pa. 455, 235 A.2d 136 (1967). Appellant relies on Commonwealth v. Benaglio, 254 Pa.Super.Ct. 100, 385 A.2d 544 (1978), in claiming that the potential prejudice of trying on the clothing outweighed the demonstration’s probative value and hence that the trial court abused its discretion in allowing such a demonstration to proceed. The court considered Benaglio in its opinion denying appellant’s motion for new trial, however, and found it to be distinguishable. We think that it decided correctly.

Benaglio was a robbery case in which the defense .attempted to cast doubt on the victim’s identification of defendant as one of the robbers by pointing out that defendant customarily wore glasses while the robber, who wore a nylon stocking over his face during the incident, wore no glasses. In an attempt to explain this discrepancy, the prosecution requested that defendant put a stocking over his head in the courtroom, to show that it would be more confortable to remove his glasses before putting on the mask. On appeal, this court found that although this demonstration had probative value, that value was outweighed by potential prejudice to defendant due to the fact that the demonstration was likely to lead the jury to speculate as to the ease of identifying defendant when he wore the mask. Here, however, appellant concedes that the test had probative value and the only prejudice alleged is that the test would “create an indelible impression in the jury’s mind.” Brief for Appellant at 26. We do not think that this experiment was so inflammatory as to prevent the jury from recognizing that fit alone did not prove ownership of the clothing or from giving the evidence its proper weight. Moreover, there was no danger here like that in Benaglio that the evidence would be likely to cause the jury to engage in impermissible speculation as to other issues critical to the resolution of the case. As the possibilities for prejudice to appellant are much less here than in Benaglio and the probative value of the experiment is conceded, we believe that the experiment was properly permitted.

IV

Appellant’s final contention is that the court erred in admitting into evidence a knife and a blue checked shirt because no positive link was established between appellant and the challenged evidence. The record reveals, however, that although witnesses could not positively identify the exhibits as the shirt worn or the knife used by the criminal, the items in question were similar to those used and they were found in the street along the route which appellant took as he ran away from the crime scene and into the bar where he was arrested. We agree with the trial court that these facts are sufficient to establish the relevance and hence the admissibility of the two exhibits. The fact that they could not be identified positively as those involved in the crime went to the weight of the evidence and was properly left to consideration by the jury.

Judgment of sentence affirmed.

      . The victim’s identification was suppressed by agreement of the parties.

      . As this appeal was filed prior to the decision of this court en banc in Commonwealth v. Holmes, 315 Pa.Super.Ct. 256, 461 A.2d 1268 (1983), we will consider the merits of these claims despite the fact that they were made in boilerplate pleadings.

      . Appellant argues that since the trial was estimated to last several days, the Commonwealth could have proceeded with the trial and called' the expert witness on Friday, when he was once more available. While it is true that the Commonwealth could have done this, the record reveals that a three-day trial was merely an estimate and that the witness had stated only that he would probably be available on Friday. In light of the uncertainties as to the length of the trial and the availability of the witness even if the trial were to last three days, we believe that the Commonwealth acted reasonably in postponing the trial. "[D]ue diligence does not demand a perfect diligence and punctilious care, but rather a reasonable effort." Commonwealth v. Polsky, 493 Pa. 402, 407, 426 A.2d 610, 613 (1981).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    464 A.2d 419
    In re Termination of Parental Rights of F.L.D. in the Minor, M.A.D. Appeal of F.L.D.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1983.
    Filed July 29, 1983.

      Clarence A. Crumrine, Washington, for appellant.
    Eric J. Held, Washington, for appellees.
    Frank Carl Roney, Jr., Canonsburg, for participating party-
    Before POPOVICH, MONTGOMERY and VAN der VOORT, JJ.
   PER CURIAM:

This is an appeal by F.L.D., natural father of M.A.D.,' from an order terminating his parental rights under 23 Pa.C.S.A. § 2511(a)(1). Appellant raises the following issues in this appeal: (1) the trial court’s decision is not based on clear and convincing evidence; (2) § 2511(a)(1) is unconstitutionally vague; and (3) § 2511(a)(1) permits an unconstitutional state intrusion into the parent-child relationship. We disagree and affirm.

M.A.D., born May 21, 1972, is the only child of the marriage between appellant and K.D.G., the petitioner herein. Appellant and K.D.G. separated approximately a year after M.A.D.’s birth and were divorced on October 7, 1975. K.D.G. has had continuous custody of M.A.D. since his birth. In 1978, K.D.G. married C.G., who desires to adopt the child.

From the time of separation until February 1976, appellant visited his son frequently and made support payments of $15.00 per week. Since K.D.G. was receiving public assistance, these support payments were turned over to the welfare agency. In February 1976, the support payments stopped. When K.D.G. questioned appellant about support, he told her he had quit his job and had no money. Appellant testified to telephone conversations with K.D.G. in February and June of 1976, although K.D.G. recalled only the conversation in June. She did, however, admit that she refused appellant’s oral request for visitation. Among the reasons K.D.G. felt justified her refusing visitation were that appellant told her he had quit his job and was living in a “store-front” church in a rather undesirable neighborhood and that since appellant was taking the child from New Jersey (where K.D.G. lived) to Pennsylvania (where appellant lived), she was afraid she might have trouble getting the child back. From June 1976 until the initiation of the present proceedings in August 1980, neither K.D.G. nor M.A.D. had any direct contact with appellant. Appellant did, apparently, attempt to enforce visitation through the courts because K.D.G. received notice of a hearing in December 1977 and an informal conference in July 1978. She did not attend either and nothing further was forthcoming from the court. After F.L.D. received notice of the instant proceeding, he deposited $3,885.00 with his attorney, claiming that he had paid $15.00 per week support into an “escrow” fund kept at his residence because he could not locate K.D.G.

Appellant testified that he had no intention of abandoning his parental rights and that K.D.G. had told him several times that she would find a new father for M.A.D. Appellant also presented the testimony of a clinical psychologist who concluded that F.L.D.’s personality traits were such that when he was rebuffed in his requests for visitation, he ceased making attempts to see his son. He further testified that appellant had not, psychologically, abandoned M.A.D.

Because of the recent decisions in Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) and In re: Adoption of M.E.T, 313 Pa.Super. 316, 459 A.2d 1247 (1983), we find it necessary to address the issue of the proper standard of proof even though neither party contends that the trial judge used an incorrect standard. In Santosky, the United States Supreme Court held that the grounds for terminating parental rights had to.be proven by clear and convincing evidence rather than by a preponderance of the evidence. In M.E.T., our court en banc stated that the “effect of the Santosky decision was to raise the burden of proof required in involuntary termination of parental rights cases from a ‘preponderance of the evidence’ to ‘clear and convincing evidence.’” M.E.T. held, therefore, that any case where parental rights were terminated using the preponderance of the evidence standard which was pending on appeal at the time Santosky was filed would be remanded for further proceedings in light of Santosky. The reason for remanding, rather than having the appellate court review the record in light of the new standard, is because the standard affects the way the evidence is weighed by the factfinder, that is, the trial court. In the instant case, the trial court made clear that it weighed the evidence under the clear and convincing standard. Indeed, the trial court specifically considered Santosky and determined that it “approves the Pennsylvania standards of clear and convincing evidence, In re William L., supra, and has no impact on our disposition ...” (OP. p. 30) We note, as well, that the Santosky opinion also cites In re William L., 477 Pa. 322, 383 A.2d 1228 (1978) to support its conclusion that Pennsylvania requires clear and convincing evidence to support a decree terminating parental rights. It is clear, therefore, that the standards of Santosky have already been met in this case and that remand would serve no purpose.

Turning now to the issues raised by appellant, he first argues that there is insufficient evidence to support the decree terminating his parental rights. He contends that this case is one where -“obstructive behavior on the part of the custodial parent [was] aimed at thwarting the other parent’s maintenance of a parental relationship.” In re Adoption of B.D.S., 494 Pa. 171, 431 A.2d 203 (1981). The only evidence of anything even approaching obstructive behavior on the part of K.D.G. is the testimony that she told him she did not want him to visit M.A.D. Although K.D.G. may not have encouraged visitation, in the words of the trial judge, she “did not deny him access to the child, did not refuse any proferred gifts, cards, support or acknowledgments of love and concern, for none was forthcoming.” (Op. p. 11) Also, although appellant argues that he could not locate K.D.G. and M.A.D., there is no evidence of any proferred cards, gifts, support, etc., during the period from June 1976 to February 1978 when appellant knew where K.D.G. and M.A.D. were residing. Nor is there any evidence that appellant ever attempted to locate K.D.G. and M.A.D. after they moved to Pennsylvania in 1978. See, In re Adoption of McCray, 460 Pa. 210, 331 A.2d 652 (1975). The minimal contacts appellant had with M.A.D., as detailed above, certainly do not constitute a course of conduct aimed at maintaining the parental relationship, In re D.J.Y., 487 Pa. 125, 408 A.2d 1387 (1979), nor do they affirmatively demonstrate the love, protection and support M.A.D. is entitled to from his father, In re Farabelli, 460 Pa. 423, 333 A.2d 846 (1975). Rather, it appears that appellant had no interest in his son at all and would likely not have demanded or attempted to see his son again were it not for the instant petition. See, In re Adoption of Orwick, 464 Pa. 549, 347 A.2d 677 (1975). Under these circumstances, we have no hesitation in concluding that there was clear' and convincing evidence to support the trial court’s finding that appellant had evidenced a settled purpose to relinquish his parental rights and failed or refused to perform his parental duties as required by 23 Pa.C.S.A. § 2511(a)(1).

Secondarily, appellant complains that the trial court failed to consider the needs and welfare of the child as directed by 23 Pa.C.S.A. § 2511(b). The record belies this claim. Indeed, not only did the trial court hear such evidence and treat this issue in his opinion, but the evidence had to be admitted over appellant’s objection. (R. 75a-81a).

Appellant’s first constitutional claim is that the words “refused or failed to perform parental duties” contained in 23 Pa.C.S.A. § 2511(a)(1) are unconstitutionally vague. In the instant case, however, the trial court found,- and we agree, that appellant’s parental rights could be terminated under the alternative grounds that he evidenced a settled purpose to relinquish those rights. Appellant does not argue that that portion of the statute is vague. Since we have affirmed the trial court’s finding on the basis of settled purpose to relinquish parental rights, and that finding alone is sufficient to affirm the order, Matter of Adoption of David C., 479 Pa. 1, 387 A.2d 804 (1978), we need not concern ourselves with whether a portion of the statute containing a different basis for terminating parental rights is or is not constitutionally vague. Weber v. Lynch, 237 Pa.Super. 48, 346 A.2d 363 (1975).

Finally, appellant complains that the statute under which his parental rights were terminated is an unconstitutional intrusion by the state into the parent-child relationship. Appellant contends that the child has been well cared for and that the state has not shown that the failure to terminate appellant’s parental rights would result in any physical or emotional harm to the child. He claims, therefore, that the state has no compelling interest that would justify infringing on the parent-child relationship. Initially, we must note, as did the trial court, that we find it hard to believe that “after this hiatus of almost five years, there exists a parent-child relationship that can be continued.”. (Op. p. 26) Practically speaking, terminating appellant’s parental rights and permitting C.G. to adopt M.A.D. will not disrupt any family unit but rather will recognize the family unit that already exists. See, Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978).

As a matter of constitutional law, a parent’s rights are not beyond regulation, even as against a First Amendment claim. Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944). As parens patriae, the state may limit the power of the parent if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens. Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). In accordance with this principle, the state has a legitimate interest in enforcing financial support for children, even through criminal proceedings, Jones v. Helms, 452 U.S. 412, 101 S.Ct. 2434, 69 L.Ed.2d 118 (1981), and in providing for the “care, protection, and wholesome mental and physical development of children” who are adjudicated dependent or delinquent. 42 Pa.C.S.A. § 6301.

In the instant case, there are further state interests involved because this case would not have arisen were it not for C.G.’s desire to adopt M.A.D. In re B.E., 474 Pa. 139, 377 A.2d 153 (1977). In such a case, there is an interest in ensuring future material needs (an adopted child inherits in the same manner as a natural child, 20 Pa.C.S.A. § 2108) as well as present support (a step-parent is not obligated to support stepchildren) Marter v. Ross, 294 Pa.Super. 241, 439 A.2d 1181 (1982).

Finally, we note that this is not a case where the state has disrupted an on-going parent-child relationship as it can do under the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq. Rather, it is a case where appellant, by his own choice, has abdicated his responsibilities as a parent. The state’s role in terminating his parental rights is to formally recognize that which has already occurred. Quilloin v. Walcott, supra. We think that these interests sufficiently justify the state’s limited role in terminating appellant’s parental rights.

Affirmed.

      . Grounds for involuntary termination
      (a) General rule.—The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
      (1) The parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties. 23 Pa.C.S.A. § 2511(a)(1).

      . Two 115.00 support payments were made at approximately this same time.

      . We note with some skepticism appellant’s claim that he could not locate K.D.G. during this period. The evidence is undisputed that K.D.G. and M.A.D. lived in the same apartment from February 1974 until March 1978 when K.D.G. married C.G. In addition, there is no evidence whatsoever that appellant attempted to locate K.D.G. after she moved from the apartment. In fact, appellant testified that he did not contact her parents to ascertain her address because they "had something to do" with the initial separation. However, appellant had visited M.A.D. at their home for nine months following the initial separation.

      . We note as well that M.E.T. does not require that new hearings be held. Such a decision is left to the discretion of the trial court. If the trial court is convinced that new evidentiary hearings are not required, it need only reconsider its prior findings in light of the clear and convincing standard. In the instant case, this would be an exercise in futility since the trial court has already considered the evidence under the clear and convincing standard.


author: HESTER, Judge:

text:
    464 A.2d 423
    Debora Jean CADY v. Bonnie Lou WEBER and Albert T. Weber, Appellants.
    Superior Court of Pennsylvania.
    Argued June 8, 1983.
    Filed Aug. 5, 1983.

      Robert F. Hawk, Assistant District Attorney, Butler, for appellants.
    Marilyn Horan-Reeder, Butler, for appellee.
    Before CERCONE, P.J., and SPAETH and HESTER, JJ.
   HESTER, Judge:

This case centers on a struggle for the custody of two minor children, Jonathan Daniel Weber, born April 27, 1976, and Dale Evan Cady, born August 13, 1977. The contestants are the children’s natural mother, appellee herein, and appellants, who are the maternal grandparents of the children.

Jonathan and Dale have resided with appellants almost since birth. Appellee was seventeen when she gave birth to Jonathan; Dale was born sixteen months later. During this time period, appellee and her children resided with her parents on a sporadic basis. Shortly before Dale’s birth, she married her present husband. Dale immediately developed serious medical problems, necessitating lengthy hospital stays. Appellee remained with her infant while her older child was cared for by appellants. In July of 1978, appellee and her husband moved to Nevada to seek employment. Until such time as she and her husband resolved some marital problems and were settled into their new life, appellee decided to leave her children with appellants. To that end, she signed a formal agreement transferring legal custody of Jonathan and Dale to her parents. When appellee thereafter requested the return of her children approximately four months later, appellants refused to surrender custody. Habeas corpus proceedings were instituted, and evidentiary hearings were held on March 5 and March 10, 1982. On April 7, 1982, the lower court entered an Order awarding custody to appellee. It is from this Order that appellants have perfected this appeal.

Appellants argue that the opinion of the lower court lacked a comprehensive and thorough analysis of the record and failed to include specific reasons for its decision. Thus, they contend that the Order of Court in its present form is unenforceable. Specifically, they assert that the lower court failed to comply with Pa.R.C.P. No. 1915.10(a), which states in pertinent part:

“In contested actions for custody and partial custody, the court shall ... include the reasons for its decision, which ... may be in narrative form, and shall make an appropriate order, which shall be a final order for purposes of appeal.”
Adopted December 10, 1981, effective July 1, 1982.

Appellee avers that Rule 1915.10(a) only became effective subsequent to the date of the lower court opinion herein, which was filed on April 7, 1982. Consequently, the trial judge was not bound to follow the mandate of that rule. Rather, according to appellee, at that time the trial court need only comply with Pa.R.A.P. No. 1925, which provides:

“(a) General rule. Upon receipt of the notice of appeal the judge who entered the order appealed from, if the reasons for the order do not already appear of record, shall forthwith file of record at least a brief statement, in the form of an opinion, of the reasons for the order, or for the rulings or other matters complained of, or shall specify in writing the place in the record where such reasons may be found.”

Thus, appellee contends that the trial court’s three page opinion satisfied the requirements extant at that time, and failure to adhere to Rule 1915.10(a) does not warrant any grant of relief.

While Rule 1915.10(a) may not have been in effect at the time the lower court rendered its opinion, appellee is laboring under the false impression that, prior to the enactment of this rule, a judge hearing a custody matter was not required to state the reasons for his or her decision in any great detail. In fact, this court has long required the lower courts to provide us with a complete record and a comprehensive opinion which contains a thorough analysis of the record and specific reasons for its ultimate decision. Robert H.H. v. May L.H., 293 Pa.Super. 431, 439 A.2d 187 (1981); Ray v. Ray, 293 Pa.Super. 216, 438 A.2d 614 (1981); In re Arnold, 286 Pa.Super. 171, 428 A.2d 627 (1981); Commonwealth ex rel. C.A.F. v. M.R.F., 281 Pa.Super. 258, 422 A.2d 157 (1980); Commonwealth ex rel. Gulas v. Gulas, 254 Pa.Super. 516, 386 A.2d 69 (1978); Common wealth ex rel. Schwarz v. Schwarz, 252 Pa.Super. 95, 380 A.2d 1299 (1977); Commonwealth ex rel. Grillo v. Shuster, 226 Pa.Super. 229, 312 A.2d 58 (1973). “The lower court’s opinion must address the testimony and the law; it must indicate the grounds for selecting the particular findings, and the reasoning process by which the judge reached his ultimate conclusion.” Commonwealth ex rel. Newcomer v. King, 301 Pa.Super. 239, 245, 447 A.2d 630, 633 (1982). Only thus can we determine that the findings of the hearing judge are supported by competent evidence. In re Arnold, supra; Jones v. Floyd, 276 Pa.Super. 76, 419 A.2d 102 (1980).

Appellee alternately contends that such a requirement pertains only to final appealable orders. Herein, appellee characterizes the Order of April 7, 1982, as an initial decision which renders, any appeal therefrom interlocutory. The lower court, in its opinion, ordered additional studies to be compiled of the children during visits in the parties’ respective homes. The judge directed that those reports be forwarded to him, upon their completion, for further consideration. In the interim, custody of the children was to remain with appellants, except for a six-week visit to appellee. Appellee asserts that the only proper appeal would be from the order which the trial judge intended to enter after studying the additional reports.

Our assessment of the lower court’s opinion leads us to conclude that a final award of custody was, in fact, entered. The Order stated:

“AND NOW, this 7th day of April, 1982, upon hearing commenced on March 5, 1982, the Court finds that the best interest of the minor children would be served by eventually transferring custody of the children to their natural mother.”

Although the hearing judge may not have intended for custody of the children to change hands immediately, it is clear that any period of transition, no matter how formulated, would eventually result in the children joining their natural mother. In support of our view, we note that the court referred to its future order as “concerning implementation of the transfer of custody.” (Emphasis added). The decision to award custody to the mother was firmly resolved; all that remained indefinite was the means of accomplishing that goal. Speculation in that regard merely evinced a judicious concern for reducing the traumatic impact inherent in any change of custody. It did not render the Order of Court any less definite. As such, the Order is a final order for purposes of appeal. The instant appeal is therefore timely and proper, and entails the need for a comprehensive opinion such as outlined above.

In the case at bar, we are compelled to agree with appellants that the opinion of the lower court is simply inadequate to provide us with sufficient assurance that all of the salient facts were given due consideration and weight. We do not base this conclusion merely on the apparent brevity of the opinion. An opinion may be concise and still comply with the mandate of this court, as long as it contains reference to the evidence, states the court’s reasoning and not simply conclusions, and analyzes the demeanor and credibility of those witnesses upon whose testimony the court relied. Commonwealth ex rel. Debeary v. Debeary, 310 Pa.Super. 137, 456 A.2d 221 (1983).

The opinion under question falls far short of the desired depth of detail and analysis. It contains only a skeletal recital of appellee’s background and current situation. No mention is made of the environment proffered by appellants. Ten witnesses, including the parties, testified at the hearings, with the transcript of their combined testimony comprising 254 pages. Yet not one word is written in evaluation of the demeanor and credibility of any of the witnesses. While the trial judge did make reference to a report from the Nevada State Welfare Division, he did not mention the extent of involvement of the Children’s Services of Butler County and its recommendations concerning the children’s continued stay in appellants’ household. The trial judge also' failed to address- appellee’s capability to provide for the two children who are the subject of this appeal in light of the two additional children that she has since borne to her husband.

We therefore hold, as we did in In re Arnold, supra, that our review of the lower court decision without benefit of a more thorough analysis by the hearing judge would serve neither the best interests of the children, our paramount concern, nor the Commonwealth. Sandra L.H. v. Joseph M.H., 298 Pa.Super. 409, 444 A.2d 1241 (1982).

This case is remanded for entry of a full opinion, which should include discussion of the character and fitness of the parties, their respective homes, and their abilities to provide for the children, both emotionally and financially. Kessler v. Gregory, 271 Pa.Super. 121, 412 A.2d 605 (1979). Moreover, the court should examine the children’s lives and their history in determining what decision would be in their best interests. Commonwealth ex rel. McKee v. Reitz, 193 Pa.Super. 125, 163 A.2d 908 (1960). Finally, in weighing the evidence, the hearing judge should be guided by the recognized standard for the adjudication of disputes between a parent and a third party:

“the parties do not start out even; the parents have 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 the third party. Thus, even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the parents’ side. What the judge must do, therefore, is first, hear all evidence relevant to the child’s best interest, and then, decide whether the evidence on behalf of the third party is weighty enough to bring the scale up to even, and down on the third party’s side.”

In re Hernandez, 249 Pa.Super. 274, 286, 376 A.2d 648, 654 (1977) (footnote omitted).

Case is remanded and jurisdiction is retained.

      . Pa.R.C.P. No. 1915.10 was amended by Order of the Supreme Court on November 8, 1982. At that time, paragraph (a), which contained the requirement that a court hearing custody matter "shall include the reasons for its decision” in its order, was deleted. The new Rule 1915.10 became effective January 1, 1983, and was made applicable to all actions pending at that time. In spite of the fact that paragraph (a) was deleted, an Explanatory Note—1981, which addressed that section, was nonetheless retained. Therein, the Supreme Court continued to observe that, if an action is appealed to the Superior Court, the trial judge must file a complete and comprehensive opinion wherein an exhaustive analysis of the record and specific reasons for the court’s decision can be found. Although the Supreme Court chose to formally extinguish that requirement from the rules, this Court has continued to urge the filing of comprehensive and analytical opinions by lower courts handling custody matters. See Commonwealth ex rel. Debeary v. Debeary, 310 Pa.Super. 137, 456 A.2d 221 (1983). Just as we did before Rule 1915.10(a) was promulgated, we will continue to require a comprehensive inquiry below. Only by doing so can we review the exercise of the weighty responsibility with which the trial judge is charged in seeking to determine the best interests of a child.

      . This second order was never entered because the effect of the instant appeal was to stay all proceedings below. Pa.R.A.P. No. 1701(a).

      . Although we characterize the lower court Order as final, we do not wish to preclude the trial judge from compiling additional evidence if he views the record as deficient in certain areas. We are equally anxious that the record, as well as the opinion, be as complete as possible. The trial judge may wish to order psychological testing of the children in light of the problems experienced by Jonathan which were touched upon in the home study report compiled by the Nevada State Welfare Division. See Commonwealth ex rel. Newcomer v. King, 301 Pa.Super. 239, 447 A.2d 630 (1982).

      . In light of our holding that the lower court opinion cannot serve as a basis for appellate review, we will not address appellants’ alternate issue that the lower court erred in granting custody of the minor subjects to appellee.


author: BROSKY, Judge:

text:
    464 A.2d 428
    In re Gertrude ANDERSON, Vernon Slater Anderson, Jr., and Dolly Melina Anderson. Appeal of Dolly Parkinson ANDERSON. In re Gertrude ANDERSON, Vernon Slater Anderson, Jr., and Dolly Melina Anderson. Appeal of Vernon Slater ANDERSON, Sr.
    Superior Court of Pennsylvania.
    Argued Feb. 24, 1983.
    Filed Aug. 5, 1983.

      Robert D. Berryman, Waynesburg, for Dolly Parkinson Anderson, appellant (at No. 216) and participating party (at No. 217).
    Mary Kardos Pruss, Waynesburg, for Vernon Slater Anderson, Sr., appellant (at No. 217) and participating party (at No. 216).
    John W. Hardisty, Waynesburg, for appellees.
    R. Wallace Maxwell, for Children and Youth, participating party.
    Before SPAETH, BROSKY and MONTEMURO, JJ.
   BROSKY, Judge:

This appeal is from an order terminating parental rights. The father and mother each argue in separate appeals that the requisite showing was not made. We disagree and accordingly affirm.

Procedural History

In February of 1975, the two older children of the family were placed in foster care with Children and Youth Services of Greene County, Pennsylvania. They were returned to their parents in May and June of 1976. In October of 1979, all three children were placed in foster care and remain there until the present.

In July, 1980, a Petition for Involuntary Termination of Parental Rights was filed by Children and Youth Services requesting that the rights of the parents be terminated under the Adoption Act of 1970 in effect at that time.

(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent; or ...

1 P.S. § 311.

Hearings were held on this petition and on October 21, 1980 the Court granted the petition, terminating the parental rights of the parents. Exceptions were filed and dismissed in February of 1982. This appeal followed.

Evidentiary Burden

In March of 1982, the United States Supreme Court issued a landmark decision in the termination of parental rights area. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). It declared, as a matter of federal constitutional law, that in cases of this type the state must establish the relevant conditions by “clear and convincing” evidence. Id. at 768, 102 S.Ct. at 1402, 71 L.Ed.2d at 616.

In In re Adoption of M.E.T., 313 Pa.Super. 316, 459 A.2d 1247 (1983), this Court held that the Santosky standard applied to cases which were on appeal when Santosky came down; and that those cases should be remanded for a hearing utilizing the new standard. The case before us was decided before Santosky appeared and was on appeal when that decision was made public. Thus, it could come within the M.E.T. remand requirement.

However, while Santosky and M.E.T. do apply to the case before us, remand is not required here. This is because the court below used an evidentiary standard at least equal to the one mandated by Santosky. As indicated by its opinion, the evidentiary standard used by that court was “clear, competent and compelling.” As a matter of legal construction, looking to the plain meaning of the words, “compelling” evidence is at least as stringent a requirement as “convincing” evidence. Santosky’s requirement was met here and we can go on to consider the case on its merits.

Scope of Review

It is our understanding of the current state of the law that the appellate court has two functions in a case of this type. First, we must determine whether the court below committed an abuse of discretion in its findings of fact. Second, we must evaluate, using a broad scope of review, the inferences and legal conclusions drawn from those facts. In re Adoption of J.A.B., 487 Pa. 79, 408 A.2d 1363 (1979); Robert H.H. v. May L.H., 293 Pa.Super. 431, 439 A.2d 187 (1982) (Brosky, J.); Commonwealth ex rel. Berman v. Berman, 289 Pa.Super. 91, 432 A.2d 1066 (1981).

This Court has recently heard en banc the case of In re Adoption of James J., Nos. 2776 and 2793 Philadelphia, 1981, in order to clarify this issue. It is not necessary for us to postpone our examination of this casé pending the filing of an opinion in James J. Using the broad scope of review as to inferences and legal conclusions, we affirm the decision of the court below. Consequently, even if the proper scope of review is found to be a narrower one, we would also have affirmed using it. Appellants will not be heard to complain about receiving the benefit of the broad scope of review of the order below adverse to them. Appellee also cannot protest, since the decision is in its favor.

Intelligence Quotient

We note that the record in this case includes the intelligence quotient (I.Q.) of each of the natural parents. The proper approach is to be taken with regard to this data is given in a 1955 opinion of this Commonwealth’s Supreme Court.

It is a serious matter for the long arm of the state to reach into a home and snatch a child from its mother. It is a power which a government dedicated to freedom for the individual should exercise with extreme care, and only where the evidence clearly establishes its necessity...
A child cannot be declared “neglected” merely because his condition might be improved by changing his parents. The welfare of many children might be served by taking them from their homes and placing them in what the officials consider a better home. But the Juvenile Court Law was not intended to provide a procedure to take the children of the poor and give them to the rich, nor to take the children of the illiterate and give them to the educated, nor to take the children of the crude and give them to the cultured, nor to take the children of the weak and sickly and give them to the strong and healthy.

Rinker Appeal, 180 Pa.Super. 143 at 148, 117 A.2d 780 at 783 (1955).

The score of parents on an intelligence test is not a relevant factor in the decision-making process involved in a termination of parental rights case. It is the demonstrated willingness and ability of the parents to perform, at a minimal level, their parental duties that is dispositive. Nothing else is pertinent to the court’s enquiry.

Of course, it is possible that a parent of limited intelligence may, as a consequence, encounter difficulties in fulfilling his role as a parent. However, it is to be strongly emphasized that a parent must not be doubly handicapped for his intellectual handicap through court recognition of it. We repeat that any detriment he may have in this area is simply not pertinent. If, on the other hand, that detriment is reflected in an incapacity to properly protect his child’s physical and emotional welfare—it is that behavior which must be looked to. Equality under the law demands no less.

It is a basic premise of the law of parental termination that the best interests of the child cannot be examined until after the court is satisfied that the parent cannot, and will not, be able to be a proper parent to his children. Perhaps a child might have greater advantages if he were raised in a home with foster or adopted parents of normal or high intelligence. But the state cannot intrude into the sacred sphere of the family unit and sever parent/child ties on that basis.

There is no indication that the court below gave any impermissible weight to the I.Q. information. Not only was it not referred to in that court’s opinion, but there was other, ample information on which he could base his decision. On the facts of this case it is regrettably clear that the natural parents have not and will not be able to provide a home and family environment of at least a consistently minimal level.

Facts

The record provides evidence that the children usually lived in substandard, unhealthy, dangerous and unsanitary conditions; that the children were on occasion physically abused by both parents; that the mother was emotionally unstable, violent and unable to cope with the stresses of everyday living; that the children were often left in the care of an alcoholic grandmother while she was in an intoxicated state; that the family moved 23 times over a five-year period, creating an unstable home environment for the family; that the mother had numerous extramarital affairs; that the father only intermittently lived with the family; that three adult male relatives of the mother lived at various times with the family, grew marijuana and threatened social workers with guns; and that the father was exceptionally passive and unable to deal with the responsibilities of being a father. Finally, the family has been under the supervision of Children and Youth Services over a period of five years. While the parents have, from time to time, made partially successful efforts at improving the situation, these efforts have always been only temporary and preceded backsliding into the former unsatisfactory conditions. This pattern also applies to the parents’ involvement in a plan designed to improve their situation sufficiently for the eventual return of the children from foster care.

We do not lightly conclude that the termination of parental rights is warranted here. The relationship between parents and their children is most intimate. It is a sacrosanct bond and can only be severed upon the most clear and convincing showing of necessity. That necessity is present here and it compels us to perform our duty. The state’s interest in protecting the children in this family prevails here over the interests of the children and the parents in preserving their family ties.

Conclusion

We find that the court below properly concluded that the termination of parental rights was necessary given the facts before it. Consequently, we affirm the order terminating the parental rights of both the father and the mother.

      . The court below derived this standard from the opinion of Justice Roberts in In re Adoption of R.I., 468 Pa. 287, 361 A.2d 294 (1976).

      . It is, of course, desirable, if at all possible, to give cases of this type expeditious treatment on appeal.

      . We do not place any particular emphasis on any one of the above listed conditions. It is their cumulative impact upon the children that concerns us.


author: ROWLEY, Judge:

text:
    464 A.2d 431
    FIREMAN’S FUND INSURANCE COMPANY, Appellant, v. NATIONWIDE MUTUAL INSURANCE COMPANY and Ernest Clark.
    Superior Court of Pennsylvania.
    Argued May 4, 1982.
    Filed Aug. 5, 1983.

      Michael D. Gallagher, Philadelphia, for appellant.
    James C. Haggerty, Philadelphia, for. appellees.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   ROWLEY, Judge:

This is an appeal from an order of the trial court granting summary judgment in favor of Nationwide Mutual Insurance Company (hereinafter “Nationwide” or “appellee”) and against Fireman’s Fund Insurance Company (hereinafter “Fireman’s” or “appellant”). For the reasons set forth more fully below, we reverse.

On September 23, 1977, Ernest Clark, then 22 years of age, was involved in a single car motor vehicle accident while riding as a passenger in a car owned and operated by one Ward Ellison. The accident rendered Ernest Clark a quadriplegic. Clark neither owned an automobile nor was he the named insured in any policy of automobile insurance at the time of the accident. However, Ernest’s father, Leroy Clark, was the named insured in a policy of automobile insurance issued by Appellant Fireman’s. This policy’s coverage applied to two motor vehicles owned by Leroy Clark. Moreover, living in the same household with the other two Clarks was William Clark, Ernest’s brother. William Clark was the named insured in a policy of automobile insurance issued by Appellee Nationwide. This policy applied to the single motor vehicle owned by William Clark.

Ernest Clark first asserted his claim for basic loss benefits against Fireman’s as if that insurer were wholly responsible for the payment of those benefits in accordance with § 204(b) of the No-Fault Act, Act of July 19, 1974, P.L. 489, No. 176, Art. II, Sec. 204(b), 40 P.S. § 1009.204(b). Fireman’s paid the claim and then demanded contribution pro rata from Nationwide for one-half of the total claim. It made this demand based upon the number of involved obligors, in this instance two, and the principle that each should bear the burden equally. Nationwide resisted, paying instead only one-third of the claim as reimbursement to Fireman’s, basing this apportionment of liability on the number of insured vehicles and the difference in premiums paid to obtain coverage for them.

This difference in interpretation as to their responsibility under § 204(b) of the No-Fault Act led Fireman’s to file a petition on June 2, 1980, seeking a declaratory judgment in its favor pursuant to the Declaratory Judgments Act, Act of July 9, 1976, P.L. 586, No. 142, Sec. 2, 42 Pa.C.S.A. § 7531 et seq. On February 13, 1981, Fireman’s filed a motion for summary judgment. By an order dated September 18, 1981, the Honorable Edward Rosenwald denied the motion and held that Fireman’s was entitled to receive reimbursement for only one-third of the benefits it paid to Ernest Clark. Fireman’s then filed a notice of appeal to this court. At that time, the trial court’s docket indicated only that the motion for summary judgment was denied. It is clear that such an order is not appealable. Husak v. Berkel, Inc., 234 Pa.Super. 452, 341 A.2d 174 (1975); Sultan v. Sentry Insurance Co., 220 Pa.Super. 372, 283 A.2d 869 (1971). Thereafter, on July 15, 1982, pursuant to Pa.R.A.P. No. 301 summary judgment in favor of Nationwide was entered and it was docketed on August 2, 1982. With the appeal now properly before us, we proceed to consider the issues on the merits.

Appellant’s action is brought under § 204(b) of the Act “to recover contribution pro rata” from appellee for basic loss benefits paid to Ernest Clark. It is necessary, therefore, that we first construe the language of that provision. When interpreting a statute, our first step is to “ascertain and effectuate the intention of the General Assembly,” giving full effect to each provision of the statute if at all possible. 1 Pa.C.S.A. §§ 1921(a), 1922(2). See also Allstate Ins. Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980). The General Assembly is presumed not to have intended a result which is absurd or unreasonable. 1 Pa.C. S.A. § 1922(3). The words and phrases used in any legislation are to be construed “according to their common meaning and accepted usage,” with technical words being given their technical meaning. Id. § 1903(a). With these principles in mind, it is appropriate to examine the pertinent statutory language.

Section 204 of the Act provides:

§ 204 Source of basic restoration benefits

(a) Applicable security.—The security for the payment of basic loss benefits to an injury to:
(1) an employee, or to the spouse or other relative of any employee residing in the same household as the employee, if the accident resulting in injury occurs while the victim or deceased victim is driving or occupying a motor vehicle furnished by such employee’s employer, is the security for the payment of basic loss benefits covering such motor vehicle or, if none, any other security applicable to such victim;
(2) an insured is the security under which the victim or deceased victim is insured;
(3) the driver or other occupant of a motor vehicle, involved in an accident resulting in injury who is not an insured is the security covering such vehicle;
(4) an individual who is not an insured or the driver or other occupant of a motor vehicle involved in an accident resulting in injury is the security covering any motor vehicle involved in such accident. For purposes of this paragraph, a parked and unoccupied motor vehicle is not a motor vehicle involved in an accident, unless it was parked so as to cause unreasonable risk of injury; and
(5) any other individual is the applicable assigned claims plan.
(b) Multiple sources of equal property.—If two or more obligations to pay basic loss benefits apply equally to an injury under the priorities set forth in subsection (a) of this section, the obligor against whom a claim is asserted first shall process and pay the claim as if wholly responsible. Such obligor is thereafter entitled to recover contribution pro rata from any other such obligor for the basic loss benefits paid and for the costs of processing the claim. If contribution is sought among obligors responsible under paragraph (4) of subsection (a) of this section proration shall be based on the number of involved motor vehicles. (Emphasis supplied.)

None of the operative language contained in subsection (b) has been explicitly defined by the legislature. However, each insurer agrees that it has an “obligation to pay.” In accordance with § 111(b) of the No-Fault Act, each company has “provid[ed] security for the payment of basic loss benefits” to Ernest Clark who qualifies as an insured under each policy.

Moreover, there is no dispute that these two insurers’ obligations to pay “apply equally ... under the priorities” contained in subsection (a). That subsection describes the source of “applicable security” for the payment of benefits. It establishes a system of priorities between obligors in terms of the factual situation in which the claimant’s injury took place. Unless a victim brings himself or herself within the fact pattern set forth in the first priority, he or she must move on to the subsequent priorities until the proper “source” from which to claim the basic loss benefits is ascertained. In the case before us, only one priority applies, namely § 204(a)(2) and it applies to the policy issued by each carrier. The obligations of Fireman’s Fund and Nationwide to pay basic loss benefits to Ernest Clark thus arise under the identical priority provision of § 204(a). Furthermore, in the absence of either policy, the other insurer would be required to assume the entire burden of providing basic loss benefits to Ernest Clark. Finally, there is no claim that either of these policies provides only some type of limited coverage to be utilized only when other collectible insurance is exhausted, whether that coverage be “secondary,” “excess,” “umbrella,” or of some other form. Because the obligations of these insurers arise under the same level of priority, because both of these policies provide the same type of insurance coverage and because there is no logical method by which we may call upon one insurer to fulfill its contractual obligation to make the required benefits payments up to the limits of its policy before requiring the other insurer to do the same, the obligations of each of the parties to pay basic loss benefits is deemed to “apply equally.” So much, apparently, is neither contested nor contradicted.

The parties do differ, however, when giving content to the statutory direction contained in § 204(b) that, when two or more obligations to pay such benefits are equally applicable, “the obligor against whom a claim is asserted first ... is thereafter entitled to recover contribution pro rata from any other such obligor____” (Emphasis supplied.) On the one hand, Nationwide argues that it is “inequitable” for Fireman’s to receive two premiums and yet to be required to pay the same share of benefits as Nationwide which received but one. Fireman’s, on the other hand, argues that proration should be made on the basis of the number of involved obligors, regardless of the amount of premiums obtained. The trial court held that Nationwide was correct and apportioned the liability one-third to Nationwide and two-thirds to Fireman’s. The term “contribution pro rata” has not been defined by the General Assembly. However, that term has an accepted and technical meaning in the insurance industry and in insurance law. It is appropriate, therefore, to look to the meaning ascribed to such terms.

I. Premium Method of Proration

Three basic methods of proration have been identified. There are three basic methods of proration. The majority rule ... prorates liability according to the limits contained in each policy. The next, which is seldom followed, prorates on the basis of the premiums paid to each insurer. Finally, there is a minority but growing number of courts which prorate the loss equally up to the limits of the lower policy____
Carriers Insurance Co. v. American Policyholders Ins. Co., 404 A.2d 216, 221 (Me.1979).
See also: 7A Am.Jur.2d, Automobile Insurance §§ 432 et seq.; 16 Couch on Insurance 2d, Chapter 62, “Contribution and Apportionment.”

Because the method of proration adopted by the trial court in this case and urged upon us by Nationwide is founded on an assumed difference in the amount of premiums received by each obligor, it seems appropriate to analyze the so-called premium method of proration. One case in which the premium method of proration was utilized is Insurance Company of Texas v. Employers Liability Assurance Corp., 163 F.Supp. 143 (S.D.Cal.1958). At the time that case was decided, California followed (and still does) the majority rule of policy-limits apportionment. In that case, however, one insurer had issued a policy with limits far in excess of those contained in a rather small second policy covering the same risk. - The loss sustained was small enough to be within the limits of the smaller policy. Had the court followed the policy-limits formula, the issuer of the larger of the two policies would have been required to pay for almost the entire loss. The court recognized that once minimum insurance coverage is established, large increases in the limits of coverage may be added at relatively low cost. The court implicitly recognized that requiring the larger-limit insurer to pay for the entire loss would not begin to approximate either the actual contractual obligation undertaken by the insurers or the benefits received by the insurers. The court thus found it more “equitable” to require the insurers to prorate the loss based upon the ratio of their respective premiums in relation to the entire amount of premiums paid. Id. at 147. The court intimated that in almost all other circumstances, it would have applied the majority rule.

Premium-based proration has been subjected to extensive criticism in courts at both the Federal and State levels. Mission Insurance Co. v. Allendale Mutual Insurance Co., 95 Wash.2d 464, 626 P.2d 505 (1981); Carriers Insur ance Co. v. American Policyholders’ Ins. Co., supra; Ryder Truck Rental, Inc. v. Schapiro & Whitehouse, Inc., 259 Md. 354, 269 A.2d 826 (1970); State Farm Mutual Automobile Insurance Co. v. Travelers Indemnity Co., 433 F.2d 311 (10th Cir.1970); State Farm Mutual Automobile Ins. Co. v. General Mutual Ins. Co., 282 Ala. 212, 210 So.2d 688 (1968); Ruan Transport Corporation v. Truck Rentals, Inc., 278 F.Supp. 692 (D.Colo.1968); Continental Casualty Co. v. Travelers Insurance Co., 84 Ill.App.2d 200, 228 N.E.2d 141 (1967); Nationwide Mutual Insurance Co. v. State Farm Mutual Automobile Ins. Co., 209 F.Supp. 83 (N.D.W.Va.1962); Cosmopolitan Mutual Insurance Co. v. Continental Casualty Co., 28 N.J. 554, 147 A.2d 529 (1959). See also: Concurrent Coverage in Automobile Liability Insurance, 65 Columbia L.R. 319, 330-331 (1965). The fundamental defect in this approach to proration is that included in a given premium are a multitude of “sub-premiums” intended to pay for each of the many risks covered by the policy. Unless the risks covered by each policy are identical and the premiums assessed in the identical manner, it is difficult if not impossible to untangle the premiums paid and ascertain exactly how much is paid to cover any one risk. If, because it is too complicated, this unscrambling is not done, apportioning liability on the basis of the premiums comports with neither the obligation undertaken by the obligor nor the benefit received by it in exchange for providing insurance coverage. Liability thus ceases to bear any relationship to the contract and, instead, has only facile application to recommend it.

This criticism may be applied in the instant case. Ernest Clark is an insured under the single policy of insurance issued by Fireman’s to Leroy Clark, Ernest’s father. Nationwide argues that Fireman’s received “two personal injury premiums.” However, there is nothing in the record before us which indicates that Fireman’s received a greater amount of money than did Nationwide to cover the risk involved in this case, i.e. the risk of bodily injury to Ernest Clark while riding in the car of a third party. The bulk of any additional premium payments made to Fireman’s for the coverage provided for the second car listed on the policy was presumably for the purpose of providing benefits when covered persons were injured while riding in that car. Unless and until there is a showing that Fireman’s did, in fact, receive twice the amount in premiums for the risk involved in providing coverage to Ernest Clark, under the facts of this case, apportioning liability on the basis of premiums would impose upon Fireman’s an obligation to pay benefits in excess of any demonstrated proportionate benefit Fireman’s received. Additionally, even if Fireman’s did receive a higher premium, the additional money was collected by Fireman’s in anticipation of being required to pay out basic loss benefits twice as often because of having two insured cars on the road instead of one. The fact that more premiums are received does not provide an appropriate basis for requiring each payment for loss to be twice as large. Moreover, the risk that Ernest would be injured in a car operated by a third party is exactly the same with regard to both policies. Because all things appear to be equal with regard to this accident, this victim and these insurers, there is no basis in the record for imposing unequal burdens on the carriers.

Another difficulty with utilizing a method of proration in this case that is based on a difference in premiums received is that the record does not disclose what difference, if any, there is in the premiums actually received by each of the obligors for the personal injury protection (PIP) benefits provided for the claimant under each policy. Nationwide’s policy is not included in the reproduced record and there is no evidence concerning the amount of coverage provided or premium received for work loss or replacement services loss. Although Fireman’s policy is included in the reproduced record, it does not include the PIP endorsement. However, it appears from the “Declarations” sheet that “Statutory” protection is provided. Unfortunately, the amount of premium charged is undecipherable. Thus, the crucial finding that Fireman’s collected two premiums to Nationwide’s one is not supported by the record before us and, at the very least, summary judgment on this point is inappropriate.

Moreover, Fireman’s presents a cogent argument based on the maxim “inclusio unius est exclusio alterius”. The last sentence of § 204(b) specifically states that the “number of involved motor vehicles” is the method of proration to be used, but only when the injury occurs under the priority established by § 204(a)(4). That priority applies when an uninsured individual is injured while not occupying a motor vehicle as either driver or passenger. It is apparent, therefore, that the legislature knew of the availability of this method of proration and consciously limited its use to only one of the five factual situations contained in subsection (a). Because the legislature failed to impose this system of proration across the board, it is apparent that some other system of proration was intended by the legislature to apply to cases coming within the scope of § 204(a)(2). We conclude that it is impossible to determine the meaning of “contribution pro rata” by reference to the statute alone and that its meaning should not be determined by referring to terms which could have been written into the statute' but were not. Therefore, we hold that in calculating the amount of an obligor’s liability for contribution pro rata under § 204(a)(2) and (b) of the Act neither the so-called “premium method” nor the “involved motor vehicles” method shall be utilized.

II. Policy-Limits Method of Proration

Resolution of this case depends, rather, upon the language of the policies in question and an examination of the law of insurance prior to the enactment of the No-Fault Act and the effect, if any, passage of that Act may have had upon that law. In Vrabel v. Scholler, 369 Pa. 235, 242-243, 85 A.2d 858, 861 (1952) (Vrabel I), appeal after remand, 372 Pa. 578, 94 A-2d 748 (1953) (Vrabel II), the Pennsylvania Supreme Court stated:

In the absence of contrary modifying provisions in a statute, the liability of an insurer and the extent of the loss under a policy of automobile liability insurance must be determined, measured, and limited by the terms of the contract. (Emphasis supplied.)

Where the insurance policies did not themselves expressly specify the method of proration, the Supreme Court held that liability was to be apportioned under the so-called majority rule or the “policy limits” method of proration. Compare Vrabel II, supra, with Carriers Ins. Co. v. American Policyholders’ Ins. Co., 404 A.2d at 221-222.

In the case before us, Fireman’s and Nationwide have both argued for a decision based solely on a construction of the statute. However, there is no indication in either the Act itself nor the legislative history that either insurer is correct in its interpretation of the Act. As noted above, the Act itself contains no definition of either “contribution” or “pro rata.” At least on its face, therefore, § 204(b) of the No-Fault Act is not in this regard a “contrary modifying provision[] in a statute” within the meaning of Vrabel I. Moreover, the legislative history of the Act contains no reference to § 204(b). See D. Shrager, ed., The Pennsylvania No-Fault Motor Vehicle Insurance Act (1979), Appendix B. “Legislative History,” 311-501. Likewise, although proposed Federal no-fault legislation contained an almost identical provision, S. 354, 93d Cong., 2d Sess. § 205(b), contained in Shrager, Pennsylvania No-Fault Act, supra, Appendix C, at 536, the legislative history of the proposed Federal statute is also barren of any enlightening explanation of the proration system envisioned. See National No-Fault Motor Vehicle Insurance Act: Report of the Senate Committee on Commerce on S. 354, S.Rep. 382, 93d Cong., 1st Sess. (1973) at p. 65; No-Fault Insurance: Hearings on S. 354 Before the Senate Committee on the Judiciary, 93d Cong., 1st and 2d Sess. (1973-1974). Similar or identical language contained in other bills proposed in Congress which could have served as a guide to the General Assembly also received no meaningful comment or explanation. See e.g., No-Fault Motor Vehicle Insurance: Hearings on H.Coon.Res. 16, H.R. 10, H.R. 1400, H.R. 1680, H.R. 2162, H.R. 13714, H.R. 15789, and S. 354 (and identical bills) Before the Subcommittee on Commerce and Finance of the House Committee on Interstate and Foreign Commerce, 93d Cong., 2d Sess. (1974); See also Automobile Insurance Reform and Cost Savings: Hearings on S. 945, S. 946, S. 976, and S.Con. Res. 23 Before the Senate Committee on Commerce (Parts I-V), 92d Cong., 1st Sess. (1971). Because there is no evident intent on the part of the General Assembly to alter the law prevailing at the time the No-Fault Act was passed, we conclude that the legislature’s use of current accepted and technical insurance vocabulary indicates that the General Assembly was informed with regard to the law with respect to proration and it determined that that facet of the law was not to be changed. It is our conclusion, therefore, that the No-Fault Act is not such a “modifying statute” as that spoken of in Vrabel I.

Because the statute does not compel the use of any particular method of proration, we should look to the contracts of insurance to determine if the parties have allocated the burden of prorátion therein. The policy issued by Fireman’s states in pertinent part:

If there is other automobile medical payments insurance ... the Company [Fireman’s] shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible automobile medical payments insurance.
(Repro. Record, 15a, “Conditions: 16. Other Insurance, Part II.”)

While the limit of liability stated in the declaration will be required to yield to contrary modifying provisions in the No-Fault Act, the model Basic Personal Injury Protection Endorsement, Section I: Condition H, promulgated by the Commissioner of Insurance at 31 Pa.Code § 66.102(e), specifically shows that a clause such as the one quoted above is still deemed appropriate. The model pro rata clause states:

In no case shall the Company be liable for a greater proportion of any loss than this policy’s limit of liability bears to the sum of all limits of liability of all applicable insurance and self-insurance'.

We are not informed, however, of the pertinent language contained in the policy issued by Nationwide or in the PIP endorsement to Fireman’s policy. It may be that both policies contain language similar to that in the model clause prescribed by the Commissioner. If so, that language should be followed. If there is a conflict between the language of the policies, that conflict should first be resolved in the trial court by reference to the language contained in the policies. If the clauses are irreconcilable, they should be disregarded as mutually repugnant and the common law rule of Vrabel I and Vrabel II applied, i.e. the policy-limits ratio. If that common law rule is to be altered, it should be done only after careful consideration and reflection, with due regard for the uniformity, coherence, simplicity and certainty of the No-Fault system of insurance desired by the legislature. See, e.g., Mission Insurance Co. v. Allendale Mutual Insurance Co., supra; Carriers Insurance Co. v. American Policyholders’ Ins. Co., supra; Ryder Truck Rental, Inc. v. Schapiro & Whitehouse, Inc., supra; State Farm Mutual Automobile Insurance Co. v. Travelers Indemnity Co., supra; Ruan Transport Corporation v. Truck Rentals, Inc., supra; Continental Casualty Co. v. Travelers Insurance Co., supra; Nationwide Mutual Insurance Co. v. State Farm Mutual Automobile Ins. Co., supra; and Cosmopolitan Mutual Ins. Co. v. Continental Casualty Co., supra.

In any event, this case is not yet ripe for summary judgment because there is as yet no showing that either party “is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035. We therefore reverse the order of the trial court granting summary judgment in favor of Appellee Nationwide and remand this case for further proceedings not inconsistent with this opinion.

Jurisdiction is not retained.

      . Neither party has objected to this procedure and we intimate no view as to its propriety. We note, however, that while neither this court nor the Pennsylvania Supreme Court has decided whether summary judgment is appropriate in a declaratory judgment action, the Commonwealth Court has decided the issue in the affirmative. See: Pennsylvania Public Utility Commission Bar Association v. Thornburgh, 62 Pa.Cmwlth. 88, 434 A.2d 1327 (1981); Laspino v. Rizzo, 40 Pa.Cmwlth. 625, 398 A.2d 1069 (1979); Commonwealth of Pennsylva

        nia v. Frantz Advertising, Inc., 23 Pa.Cmwlth. 526, 353 A.2d 492 (1978); Commonwealth of Pennsylvania v. Chesney, 11 Pa.Cmwlth. 379, 315 A.2d 675 (1974). We also note that summary judgment may be entered in favor of the non-moving party and against the moving party. See: Port Authority of Allegheny County v. Flaherty, 6 Pa. Cmwlth. 135, 293 A.2d 152 (1972); 2 Goodrich-Amram 2d, § 1035(b)(6), 2B Anderson Pennsylvania Civil Practice, § 1034.24(b).

      . Under § 103 of the No-Fault Act, 40 P.S. § 1009.103, insurers such as Fireman’s Fund and Nationwide must write their contracts of insurance to cover:
      [R]elative[s] of a named insured, a minor in the custody of a named insured, and a minor in the custody of a relative of a named insured if—
      (i) not identified by name as an insured in any other contract of basic restoration insurance complying with this act; and
      (ii) in residence in the same household with a named insured.
      An individual is in residence in the same household if he usually makes his home in the same family unit____
      There is no dispute that Ernest Clark is a relative of both his father and brother and that he is usually "in residence” in a "family unit" with both of them.

      . Under the No-Fault Act, no limit may be placed upon the medical expenses for which an insurer must reimburse an automobile accident victim. 40 P.S. §§ 1009.103, 1009.201 and 1009.202(a). Furthermore, under the Act, each policy must provide for minimum amounts of work loss and replacement services loss. Id. § 1009.202(b) and (c). We are uninformed whether the policy issued by Nationwide exceeds these mínimums; the policy issued by Fireman’s apparently does not. (Repro.Record, 7a.)

      . See, supra, n. 2.