author: ROWLEY, President Judge.

text:
    641 A.2d 1189
    Wayne H. BORING and Patricia A. Boring, Appellants v. ERIE INSURANCE GROUP.
    Superior Court of Pennsylvania.
    Submitted Jan. 4, 1994.
    Filed May 13, 1994.

      David J. Weaver, Johnstown, for appellants.
    R. Thomas Strayer, Johnstown, for appellee.

      Before ROWLEY, President Judge, and BECK and JOHNSON, JJ.
   ROWLEY, President Judge.

In this timely appeal from the partial summary judgment entered in favor of appellee, Erie Insurance Group, appellants Wayne H. Boring and Patricia A. Boring raise two issues: 1) Did the trial court err in holding that the outcome of the case was controlled by this Court’s unpublished memorandum decision in Crabbe v. Old Republic Insurance Company, No. 2762 Philadelphia 1991 (filed November 17, 1992)? (2) Did the trial court err in holding that 42 Pa.C.S. § 8371, the insurance bad faith statute, applies solely to motor vehicle insurance? After a careful review of the record and appropriate case law, we vacate the partial summary judgment and remand the case to the trial court.

Preliminarily, we note that appellants’ complaint stated three claims: 1) a violation of 42 Pa.C.S. § 8371, the insurance bad faith statute; 2) breach of contract; and 3) fraud and deceit. The trial court granted summary judgment only on the first of these claims. In Okkerse by Okkerse v. Prudential Property and Casualty Insurance Company, 425 Pa.Super. 396, 399 n. 1, 625 A.2d 663, 665 n. 1 (1993), this Court held that when one count of a multi-count complaint is dismissed and the count dismissed is premised upon a statutory provision — in that case, as here, 42 Pa.C.S. § 8371 — the order is final and appealable under the doctrine set forth in Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983). Accordingly, the order entering partial summary judgment in the present case is final and appealable, and we turn to the merits of appellants’ claims.

Appellants contend that the trial court erred in granting summary judgment on their claim that appellee violated the insurance bad faith statute, 42 Pa.C.S. § 8371. More specifically, appellants argue that the trial court incorrectly interpreted Section 8371 to apply only to motor vehicle insurance, thus refusing to apply the provision to appellants’ homeowner’s insurance policy. In addition, appellants contend that the trial court, when making this determination, erred in holding that this Court’s memorandum decision in Crabbe, supra, was controlling.

The standard of review of an order granting summary judgment is well established. Summary judgment is properly granted 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 a judgment as a matter of law.” Pa.R.C.P. Rule 1035(b). In resolving a motion for summary judgment, the court must examine the entire record in the light most favorable to the non-moving party and resolve any doubt against the moving party. Washington Federal Savings and Loan Association v. Stein, 357 Pa.Super. 281, 288-89, 515 A.2d 980, 981 (1986). The court is not to decide issues of fact but merely to determine whether any such issues exist. Id.

We turn first to appellants’ claim concerning this Court’s decision in Crabbe, supra. In its opinion the trial court stated that “although the Crabbe decision is a slip opinion, it still has a binding [effect] upon this Court” (Trial Court Opinion at 5). This was error. Crabbe is in fact an unreported memorandum decision of this Court and as such has no precedential value. As this Court has explained,

Internal Operating Procedures of the Superior Court of Pennsylvania, Rule 444 B, provides as follows:
444. Unpublished Memoranda Decisions
B. An unpublished memorandum decision shall not be relied upon or cited by a Court or a party in any other action or proceeding, except that such a memorandum decision may be relied upon or cited (1) when it is relevant under the doctrine of law of the case, res judicata, or collateral estoppel, and (2) when the memorandum is relevant to a criminal action or proceeding because it recites issues raised and reasons for a decision affecting the same defendant in a prior action or proceeding. When an unpublished memorandum is relied upon pursuant to this rule, a copy of the memorandum must be furnished to the other party and to the Court.
Superior Court of Pennsylvania, Internal Operating Procedures, implementing Pa.R.A.P. 3501-3517, effective April 1, 1988, as amended. Compare, Superior Court, Notice to the Bar, 598 A.2d 1324: “These memorandum opinions are not to be considered as precedent and cannot be cited for any purpose.”

Commonwealth v. Brezan, 418 Pa.Super. 243, 249, 614 A.2d 252, 253 (1992). In Brezan this Court refused to affirm an order granting a new trial because the order was based solely on an unpublished memorandum decision. In the present case, therefore, this Court’s decision in Crabbe was not binding on the trial court.

. [5] The statutory provision at issue, 42 Pa.C.S. § 8371, is entitled “Actions on insurance policies” and reads as follows: In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:

(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3%.
(2) Award punitive damages against the insurer.
(3) Assess court costs and attorney fees against the insurer.

42 Pa.C.S. § 8371. When construing statutory provisions, this Court must refer to the provisions of the Statutory Construction Act, 1 Pa.C.S. § 1901 et seq. Key Savings and Loan Association v. Louis John Inc., 379 Pa.Super. 226, 232, 549 A.2d 988, 991 (1988), appeal denied, 523 Pa. 632, 564 A.2d 1260 (1989). The sections of that act most relevant to the question before us are the following:

Section 1903. Words and phrases
(a) Words and phrases shall be construed according to rules of grammar and according to their common and approved usage; but technical words and phrases and such others as have acquired a peculiar and appropriate meaning or are defined in this part, shall be construed according to such peculiar and appropriate meaning or definition.

1 Pa.C.S. § 1903(a).

Section 1921. Legislative intent controls
(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.
(b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.

1 Pa.C.S. § 1921(a, b).

We begin by observing that the words of 42 Pa.C.S. § 8371 are unambiguous: the statute states that it applies “[i]n an action arising under an insurance policy” (emphasis added). There is no suggestion that the statute is to be applied only to a particular type of insurance policy. The language of Section 8371 clearly refers to all insurers.

We do not agree that because Section 8371 was enacted as part of Act No. 6, entitled “Motor Vehicle Insurance, Pleadings, Operators of Commercial Vehicles, etc.,” it was intended to address problems in the insurance industry only with respect to motor vehicle insurance. We are asked to infer this limitation from the title and context of the Act. Section 1924 of 1 Pa.C.S. provides, however, that the title, preamble headings, and other divisions of a statute may be considered in the construction but shall not be considered to control. Interpreting Section 1924, the Pennsylvania Supreme Court in Commonwealth v. Magwood, 503 Pa. 169, 176-77, 469 A.2d 115, 119 (1983), held that the title of a statute cannot control the plain words of the statute and that even in cases of ambiguity the title may be considered only to resolve the uncertainty. Accordingly, we do not interpret the title of Section 8371 so as to add a limitation not found in the plain words of the statute.

Furthermore, although many of the provisions of Act 6 do pertain to motor vehicles, other provisions within the same act are not limited to motor vehicles. One section of the act is a general provision concerning certification of pleadings, motions, and other papers, codified at 42 Pa.C.S. § 8355. Another section of the act is an amendment to the Criminal Code concerning corrupt organizations, codified at 18 Pa.C.S. § 911. It is obvious that Act 6 contains a variety of laws, many pertaining only to motor vehicles, some having general application, and others applying to various areas of the law.

We note also that the legislative history of this act proved unenlightening as to the specific application of Section 8371. While much of the discussion in the House and Senate Journals concerned motor vehicle insurance reform, many other topics were discussed as well.

The legislature’s placement of this provision in Title 42 of the Pennsylvania Consolidated Statutes, the Judicial Code, is a further indication that the legislature did not intend to limit the statute’s application to motor vehicle insurance policies. If the legislature had wished to so limit this provision, it would have more likely placed it in Title 75, the Vehicle Code, where other provisions concerning motor vehicle insurance are codified.

Our research has not uncovered any precedential decision in which the appellate courts of this Commonwealth have addressed the issue presented in this appeal. There is, however, considerable federal case law dealing "with the applicability of Section 8371. The trial court in the case before us cited to Beltrami v. Fidelity & Guarantee Insurance Co., Civil Action No. 91-0174, 1993 WL 719629 (M.D.Pa. February 5, 1993), a federal district court decision. Other federal courts have held Section 8371 to be applicable to various kinds of insurance claims, other than motor vehicle insurance. While these federal cases are not controlling or binding on this Court, they are persuasive by their number and variety. See, e.g., Eastern Stainless Corporation v. American Protection Insurance Co., 829 F.Supp. 797 (D.Md.1993) (fire insurance); Coyne v. Allstate Insurance Co., 771 F.Supp. 673 (E.D.Pa.1991) (homeowner’s insurance); MacFarland v. U.S. Fidelity & Guarantee Co., 818 F.Supp. 108 (E.D.Pa.1993) (marine insurance); Margolies v. State Farm Fire and Casualty Co., 810 F.Supp. 637 (E.D.Pa.1992) (fire and casualty insurance); Polselli v. Nationwide Mutual Fire Insurance Co., No. 91-1365, 1992 WL 247271 (E.D.Pa. Sept. 23, 1992) (homeowner’s insurance); Mabel v. Equitable Life Assurance Society of the United States, No. 92-2721, 1992 WL 151781 (E.D.Pa. June 22, 1992) (life insurance).

After analyzing 42 Pa.C.S. § 8371, its plain unambiguous language, its codification, its legislative history, and the existing body of case law, we hold that application of 42 Pa.C.S. § 8371 is not limited to motor vehicle insurance claims. Accordingly, we vacate the partial summary judgment entered in favor of appellee and remand the case to the trial court for further proceedings consistent with this Opinion.

Partial summary judgment vacated. Case remanded to the trial court for further proceedings consistent with this Opinion. Jurisdiction relinquished.

      . Because this proceeding was begun before July 6, 1992, and the order appealed from was entered before March 1, 1994, Pennsylvania Rule of Appellate Procedure 341, as amended, does not apply. Zikria v. Association of Thoracic and Cardiovascular Surgeons, 432 Pa.Super. 248, 251, 637 A.2d 1367, 1369 (1994).

        . Act of 1990, Feb. 7, P.L. 11, No. 6, § 3, effective July 1, 1990.

      . See PA House Journal, p. 724-726, May 1, 1989; p. 2025-2027, December 6, 1989; p. 2141-2153, December 12, 1989; p. 200-228, February 7, 1990. See PA Senate Journal, p. 960-979, June 29, 1989; p. 1701-1710, February 7, 1990.


source: Caselaw Access Project

author:
      POPOVICH, Judge.
      OLSZEWSKI, Judge,

license: Public Domain

text:
    641 A.2d 1193
    SOCIEDAD COMERCIALIZADORA y DE SERVICIOS UNIFRUTTI TRADERS LIMITADA, a/k/a Unifrutti Traders Limitada; Dovex Corporation, Dovex Fruit Company and Unifrutti of America, Inc., Appellees, v. Waldo Francisco Tornel QUIZADA, Valeria Pascual Tornel, Marisol Tornel Pascual, Valeria Tornel Pascual, David Tornel Pasqual, Renta Fruit N.A., Inc. and Importadora y Esportadora Renta-Frut Limitada, Appellants.
    Superior Court of Pennsylvania.
    Argued June 10, 1993.
    Filed Sept. 24, 1993.
    Reargument Granted Dec. 7, 1993.
    Order Granting Application to Discontinue Reargument April 7, 1994.
    Opinion Reinstated April 7, 1994.

      Gerald C. Grimaud, Tunkhannock, for appellants.
    Thomas B. Rutter, Philadelphia, for appellees.
    Before OLSZEWSKI, POPOVICH and CERCONE, JJ.
   POPOVICH, Judge.

This case concerns the appeal of the September 4, 1992, order of the Court of Common Pleas of Philadelphia County denying the dissolution of an injunction by the Defendants/Appellants. We reverse.

From the record certified to this Court, we glean the following pertinent facts: On December 19, 1991, the Plaintiffs filed a complaint in equity seeking the enforcement of an oral agreement to settle a dispute over the price paid by the Plaintiffs for the Defendants’ produce. Specifically, one of the Plaintiffs, Unifrutti of America, Inc. (U.A.), contracted with the Defendants to buy their fruit. The price to be paid was predicated upon what the product was sold for in the United States by U.A. With nonpayment, the Defendants instituted proceedings in Chile (arbitration to recoup monies due) and in the United States (suit to obtain information to be utilized against U.A. in Chile). Common Pleas Court found U.A. in contempt for failing to provide the documents sought by the Defendants. Following this, the Plaintiffs contacted the Defendants to discuss settlement.

Beginning on October 29, 1991, and continuing for 3 days, the Plaintiffs and Defendants where unsuccessful in negotiating a resolution of the dispute. Discussions were reinstated on November 5, 1991, and culminated in a supposedly “firm, final and binding oral settlement agreement” on November 6, 1991. See Plaintiffs’ Complaint, Paragraph 42. Confirmation of the oral agreement reportedly was reduced to letter form by both sides, each acknowledging that settlement had been achieved. Id. at 43 & 44. The agreement was to consist of a fixed dollar amount, a return of Plaintiffs’ documents, the cessation of all litigation, the sealing of all records and the divulging of no information by the Defendants. Id. at 45.

In compliance with the parties’ understanding of the finalized agreement, the court directed that, inter alia, all documents be sealed and impounded. Then the Plaintiffs asserted that the Defendants “failed and refused, without just or valid reason, to execute the necessary documents in order to consummate and effectuate the oral agreement.... ” Id. at 54. To rectify the situation, the Plaintiffs sought an injunction to foreclose the Defendants from disclosing information (e.g., trade secrets) obtained from U.A.

With the approval of the court and their clients, counsel entered into a “Statement of Agreement” whereby no lawsuit would be instituted in advance of the parties appearing in Common Pleas Court, no confidential information in the Defendants’ possession would be disclosed and the proceedings in Chile would be suspended. N.T. 12/19/91 at 3-7.

On the same day the “Statement of Agreement” had been acknowledged in open court, the Plaintiffs filed a complaint in equity to enjoin the Defendants from repudiating the alleged oral settlement agreement. What followed was a response by the Plaintiffs to the Defendants answer and new matter, in which it was averred that a settlement agreement had been reached. See Plaintiffs’ Reply, Paragraphs 66, 73 & 74.

By order dated April 2, 1992, the statute of limitations was tolled pending a final decision by the court in regard to the Plaintiffs’ suit to enforce the settlement agreement, information and/or documents relevant to the case were to be kept confidential absent a lawful subpoena or court order, all proceedings were to be stayed and neither party could commence any action against the other without leave of court.

The Plaintiffs, in answer to the Defendants’ request to dismiss the complaint as violative of public policy, reiterated its earlier assertion that “the parties ... [had] reached a valid and enforceable oral settlement agreement ... which ... Plaintiffs ... sought [to] enforce[ ] by ... Complaint.” Also, the Plaintiffs mentioned that “the core element of the settlement agreement [wa]s a confidentiality requirement which s[ought] to cause Defendants to remain silent....”

In an effort to resolve the existence/enforceability of the oral settlement agreement, the parties met in court on April 13th, 14th and 20th of 1992. At the April 13th proceeding the court heard argument and the Plaintiffs recounted how the Defendants’ “unwillingness” to execute an agreement rendered the preceding negotiations nugatory. N.T. 4/13/92 at 8. Defendants refuted any such agreement. Id. at 15 & 22. Additionally, the Plaintiffs’ counsel stated:

The [Defendants], according to all the evidence, which we all know about, made a settlement of the underlying case through attorneys who were duly authorized to do so, attorneys who suggested the confidentiality aspect of the case, which we have adopted and accepted as our own. After they make the settlement, they want to renege on it.
Then what happens? We have a lawsuit involving the settlement, which is in front of a couple of judges until it gets to [the present (third) judge].

Id. at 17.

On the second day of discussions (April 14th), the Defendants requested a Pa.R.Civ.P. 1531(f) final hearing since they believed the court’s April 2nd order was an injunction involving freedom of speech. The Plaintiffs disputed the applicability of Rule 1531(f), and all consented to start trial the following Monday to resolve the contract question. N.T. 4/14/92 at 6. Nevertheless, the next time the parties were in court (i.e., April 20th), no testimony was proffered. Rather, the only reference to the existence of an agreement came via oral argument by counsel.

The court conceded that the issue to be addressed was whether the parties “consummated” an agreement. N.T. 4/20/92 at 58. To dispose of this controversy, the court thought it wise to “hear” the case to appreciate “the full impact of all the evidence.” Id. at 65. Stated otherwise, the court “prefer[red] to hear the full record as to whether ... the lawyers representing Mr. Tomel did ... have authority ... rather than attempt to address it in the context of [a] speaking motion.” Id. at 66. Plaintiffs’ counsel concurred with the court that it should “hear the evidence”. Id. at 78.

On the other hand, the Defendants wanted to pursue the question of alleged criminal conduct by the Plaintiffs with the United States Attorney’s Office and, if not satisfied, the Pennsylvania Attorney General’s Office regarding the sale of produce. To accommodate the Defendants, the court proposed that the proceedings be continued pending the Defendants’ excursion to the other judicial offices.

Yet, the course to take was still not resolved with the Defendants’ desire to pursue both avenues of recourse: court hearing and the presentment of alleged criminal activity by the Plaintiffs to the United States Attorney’s Office and/or the Pennsylvania Attorney General’s Office. As a result, the court decided to hold the hearing in abeyance and “let the [April 2, 1992,] order stand as is” while the Defendants spoke to the federal and state officials.

The next item appearing in the record is a court order reading:

AND NOW, this 4th day of September, 1992, upon consideration of Defendants’ Motion to Dissolve a Confidentiality Injunctive Order of April 2, 1992 by this Court, Plaintiffs’ response thereto as well as other memoranda and oral argument thereon, it appearing that:
1. The provisions of Pennsylvania Rule of Civil Procedure 1531(f) are inapplicable and, therefore, unenforceable in contractual confidentiality agreements which have been negotiated, accepted and entered into by the parties for the purpose of attempting to reach a claim; and
2. The language of the Order in question was specifically agreed to by Defendants’ counsel in his letter of March 31, 1992 to this Court; it is hereby ORDERED that said Motion is DENIED.

Thereafter, an appeal was perfected and questions, first, whether the April and September 1992 Decrees were restraints upon freedom of expression entitling the Defendants to the remedial benefits of Rule 1531(f), i.e., an expedited hearing within three (3) days of issuance of the injunction or the automatic dissolutionment of the restraining order.

Preceding our inquiry on the applicability of Rule 1531(f) to the case instantly, we deem it prudent to decide whether the parties bound themselves contractually to an oral settlement agreement. The essential elements of the alleged oral settlement agreement appear in the Plaintiffs’ Complaint at Paragraph 45(1) — (8); namely:

(1) Plaintiffs would pay to Defendants an agreed-upon sum of money.
(2) All documents relating to Plaintiffs including, without limitation, the documents unlawfully obtained by Marisol Tornel, all documents related to Plaintiffs in the possession or control of Defendants, the files and notes of Defendants’ attorneys, or any third party — ie., all written information— would be retrieved by Defendants and returned to Plaintiffs or destroyed.
(3) No written information, or any of the contents thereof, would be used or divulged by Defendants to anyone but, instead, all information Defendants had regarding Plaintiffs, both written and oral, would be held in strictest confidence as would the Oral Agreement and the written agreements contemplated thereby.
(4) Mutual general cross releases and covenants not to sue would be exchanged between all Plaintiffs and all Defendants, and Defendants would not counsel or assist any other person, either directly or indirectly, to commence any suit or other proceeding against any Plaintiff.
(5) The Chilean Proceedings would be terminated and the parties would jointly request the arbitrator to hold all arbitration documents as confidential.
(6) The U.S. Proceeding would be terminated, the record thereof sealed, and the contempt citation entered against U.A. and “Dovex” set aside by mutual consent.
(7) Injunctive relief and compensatory, consequential, incidental and punitive damages would be awarded for any breach of the Oral Agreement.
(8) Defendants’ counsel, because of their exposure to the confidential documents, would not be counsel for, or assist in the prosecution of, a claim by any other person against Plaintiffs, and such counsel would be bound by the same confidentiality provisions as would the Defendants.

To resolve the matter at hand, we begin with the observation that there is a strong judicial policy in favor of voluntarily settling lawsuits. Rothman v. Fillette, 503 Pa. 259, 469 A.2d 543, 546 (1983) (Citations omitted); In re Trust of Mintz, 444 Pa. 189, 282 A.2d 295, 299 (1971). The primary reason is that settlement expedites transference of money into the hands of a complainant. A secondary reason is that settlement reduces the burden on and expense of maintaining the courts. Rothman, supra.

Voluntary settlement of civil controversies is in high judicial favor. Judges and lawyers alike strive assiduously to promote amicable adjustments of matters in dispute, as for the most wholesome of reasons they certainly should. When the effort is successful, the parties avoid the expense and delay incidental to litigation of the issues; the court is spared the burdens of a trial and the preparation and proceedings that must forerun it.

Autera v. Robinson, 136 U.S.App.D.C. 216, 419 F.2d 1197, 1199 (1969).

Compromises may take the form of written agreements or oral settlements, both of which are recognized as valid and enforceable. 1 P.L.E. Accords and Compromise § 3 (1986).

Of course, preliminary negotiations do not constitute a contract. “However, if the parties orally agree to all of the terms of a contract between them and mutually expect the imminent drafting of a written contract reflecting their previous understanding, the oral contract may be enforceable.”
An oral settlement agreement may be enforceable and legally binding without a writing. “Where parties have reached an oral agreement, the fact that they intend to reduce the agreement to writing does not prevent enforcement of the oral agreement.”

Kazanjian v. New England Petroleum Corp., 332 Pa.Super. 1, 480 A.2d 1153, 1157 (1984) (Citations omitted). As a corollary to the aforesaid:

If the parties agree upon essential terms and intend them to be binding, “a contract is formed even though they intend to adopt a formal document with additional terms at a later date.” The intent of the parties is a question of fact which must be determined by the factfinder. A reviewing court must defer to the findings of the trier of the facts if they are supported by the evidence.

Johnston v. Johnston, 346 Pa.Super. 427, 499 A.2d 1074, 1076-77 (1985) (Citations omitted; emphasis added). Accord Woodbridge v. Hall, 366 Pa. 46, 76 A.2d 205, 206 (1950) (Equity court had jurisdiction to enforce oral settlement agreement entered into by the parties; the findings of the chancellor were not disturbed on appeal because there was substantial evidence to support it).

At bar, the record is not supportive of the Chancellor’s legal conclusion that Rule 1531(f) is “inapplicable and ... unenforceable in contractual confidentiality agreements which have been negotiated, accepted and entered into by the parties for the purpose of attempting to reach a settlement in the underlying claim; and ... [t]he language of the [April 2, 1992,] Order ... was specifically agreed to by Defendants’ counsel in his letter of March 31, 1992 to this Court [.]” See September 4, 1992, Decree (Emphasis added).

As to the first portion of the Chancellor’s Decree, the record is unclear as to whether the parties (although having “entered into negotiations”) “accepted” an agreement binding themselves to “confidentiality”. In fact, the Defendants’ counsel took no action because of the enjoining affect of the Chancellor’s April 2nd Decree requiring the Defendants to “keep strictly confidential ... each and every fact, document or •writing relevant to, or implicated in, this proceeding....” See also N.T. 4/20/92 at 68-73, 81.

Furthermore, the attorneys argued vigorously and extensively before the Chancellor as to their respective positions regarding the presence or absence of a binding contract. Nevertheless, no testimony was received by the Chancellor to resolve the dispute over mutual assent to the alleged, oral settlement agreement. This was so despite the fact that the Chancellor had indicated that it would be advisable to “hear” the case to appreciate “the full impact of all the evidence.” N.T. 4/20/92 at 65. Instead, the case was continued.

From our review of the facts, the record is devoid of support for the Chancellor’s legal conclusion that “acceptance” had been established with respect to the “contractual confidentiality agreement” so as to bind the Defendants to comply with the September 4th Decree. See Kazanjian, supra.

Likewise, we have scoured the official record and have been unable to locate the referenced March 31, 1992, letter in the Chancellor’s September 4th Decree. As such, we may not affirm a legal conclusion which draws its essence from facts which are not of record.

The appellate courts of Pennsylvania have consistently held that the scope of review of equity matters is limited and the chancellor’s findings of fact will not be disturbed • unless they are unsupported by adequate evidence. The chancellor’s conclusion, being his reasoning from the facts, is reviewable, but only to determine whether or not the conclusion is reasonable, not contrary to law and not an abuse of discretion.

Kazanjian, supra, 332 Pa.Super. at 3, 480 A.2d at 1155 (Citations omitted), and contrast with Woodbridge, supra; Compu Forms Control, Inc. v. Altus Group, Inc., 393 Pa.Super. 294, 574 A.2d 618, 622 (1990); Johnston, supra.

Because we find the Chancellor’s conclusion that the parties had “accepted” the terms of the “contractual confidentiality agreement” to be erroneous and not substantiated by the record, we reverse. Kazanjian, supra.

We find additional support for our reversal in the Defendants’ Rule 1531(f) argument, i.e., the mandatory requirements of Rule 1531(f) were not adhered to with the Chancellor’s failure to conduct a final hearing.

It was not until the second day of negotiations to resolve the dispute (on April 14th) that the Defendants requested a final hearing. There is nothing set forth in Rule 1531(f) or the “Explanatory Comment — 1973” thereafter which precluded the Defendants from seeking a final hearing “at any time after a[n] ... injunction involving freedom of expression [wa]s entered.... ” Id.

The Rule allows for “a final hearing within three (3) days after demand by the defendant.” No time period is set for a defendant to make such a “demand”. Instantly, the Defendants made their “demand” for a final hearing as to the April 2nd injunction on April 14th, which is not at odds with “[t]he basis of the [Rule 1531(f) ] procedure ... to give the defendant the free choice of a prompt final hearing, at any time after a preliminary or special injunction involving freedom of expression is entered----” See “Explanatory Comment— 1973” to Rule 1531 (Emphasis added). Therefore, under the language of the Rule, the Defendants acted properly in seeking a final hearing when they did without violating any procedural format. Id.

At bar, the Defendants requested a 1531(f) hearing on April 14th, yet, with all parties consenting, the final hearing date was set for April 20th. On that date, no testimony was received even though witnesses were present. Rather, the Chancellor continued the final hearing to allow the Defendants to approach federal and state prosecutors for their assessment of possible (criminal) improprieties attributable to the Plaintiffs concerning the contractual dispute which brought the litigants to court.

However, the continuance was issued even though the Defendants were desirous of proceeding with the 1531(f) final hearing. The Chancellor opted to hold the matter in abeyance pending the Defendants’ inquiry of federal and state officials.

Rule 1531(f) and the Explanatory Comment thereto would indicate that the Chancellor’s failure to conduct a hearing was violative of its mandatory requirements; to-wit:

(f)(1) When a preliminary or special injunction involving freedom of expression is issued, either without notice or after notice and hearing, the court shall hold a final hearing within three (3) days after demand by the defendant. A final decree shall be filed in the office of the prothonotary within twenty-four (2)) hours after the close of the hearing. If the final hearing is not held within the three (3) day period, or if the final decree is not filed within twenty-four (24) hours after the close of the hearing, the injunction shall be deemed dissolved.
(3) The trial judge shall file a written memorandum supporting the final decree within five (5) days after it is filed.
Explanatory Comment — 1973
The basis of the procedure is to give the defendant the free choice of a prompt final hearing, at any time after a preliminary or special injunction involving freedom of expression is entered, simply by filing a demand therefor. Upon the filing of the demand, the final hearing must be held within three days. If it is not held, the preliminary or special injunction shall be deemed dissolved.
If the hearing is held, a final decree must be filed within 24 hours after the close of the hearing; if it is not filed, the preliminary or special injunction shall be deemed dissolved.
The defendant always has the option to decline this special procedure and to proceed in due course by preliminary objection or by filing an answer or by discovery or by any other procedural techniques available in the ordinary equity action. It is the defendant who may choose whether to suffer under the preliminary or special injunction for an extended period of his own choice, or to use the new guarantees of a prompt and final disposition of the matter.
If the defendant demands such a final hearing, then all the equity pleading rules and all the equity rules relating to adjudication, decree nisi and exceptions thereto become inapplicable and the case proceeds on the special expedited formula to a final decree.
In order to assure an appropriate record for an appeal, the rule further makes it the mandatory duty of the court to file, within 5 days after the filing of the final decree, a ■ memorandum in support thereof [Emphasis added]

Sub judice, both the time-frame within which the final hearing had to be held and the continuance of the hearing over the Defendants’ wishes to proceed with an evidentiary hearing contravene Rule 1531(f). Even if, arguendo, the Dissent’s reference to a court holiday on April 17th extended the final hearing is correct, we still have the Chancellor’s failure to conduct any final hearing as clearly violative of Rule 1531(f) (“... after demand by the defendant ... [i]f the final hearing is not held ... the injunction shall be deemed dissolved.”) and the Explanatory Note thereto (“Upon the filing of the demand, the final hearing must be held.... If it is not held, the preliminary or special injunction shall be deemed dissolved.”).

Moreover, the Chancellor’s September 4, 1992, Decree, having been issued well after the demand for final hearing being scheduled (for April 20, 1992, but never conducted), runs afoul of the 24-hour requirement. This is the period within which a final decree must be issued to avoid a dissolution of the injunction. See Rule 1531(f) (“... if the final decree is not filed within twenty-four (24) hours after the close of the hearing, the injunction shall be dissolved.”).

Lastly, the Chancellor did not file a written memorandum within five (5) days after the September 4, 1992, Decree in support thereof. See Rule 1531(f)(3); note 9, supra. Therefore, for the reasons herein stated, we reverse the order appealed.

Order reversed; jurisdiction is not retained.

OLSZEWSKI, J., files a dissenting opinion.

OLSZEWSKI, Judge,

dissenting.

It is only after careful study of the majority’s thoughtful opinion that I decide that I cannot join in its disposition. The majority concludes that the trial court improperly denied defendants/appellants’ motion to dissolve an injunction against them. It' thus reverses the order and, as I understand it, effectively dissolves the injunction. Since this course of action grants appellants more relief than they are entitled, I must respectfully dissent.

Whether the trial court improperly denied the petition to dissolve because it improperly found facts upon which the injunction was granted, the issue addressed by the majority, is irrelevant to resolve the issues presented by defendants/appellants. It is undisputed that there has never been a hearing on the merits of the underlying contract in this case. The only relevant question, as I see it, is whether defendants were entitled to a prompt hearing under Rule 1531(f) of the Pennsylvania Rules of Civil Procedure. If they were, the injunction dissolved as a matter of law for want of an actual hearing. On the other hand, if they were not, no prompt hearing was necessary and the'petition to dissolve was properly denied.

The salient facts are amply stated by the majority but deserve brief recitation here. Plaintiffs filed an action against defendants seeking to enforce an oral settlement. Allegedly, defendants, fruit moguls, orally agreed to accept a sum of money in return for their promise to drop existing lawsuits in Chile and the United States, forebear from filing a civil RICO action in the United States, and keep confidential any information surrounding the circumstances which gave rise to the actual and potential actions. On April 2, 1992, defendants agreed to an order enjoining all parties from disclosing any information relevant to the proceeding (in other words, defendants were enjoined from disclosing information which was allegedly subject to the oral settlement). On April 14, defendants demanded a hearing pursuant to Pa.R.C.P. 1531(f), which provides:

When a preliminary or special injunction involving freedom of expression is issued, either without notice or after notice and a hearing, the court shall hold a final hearing within three (3) days after demand by the defendant. A final decree shall be filed in the office of the prothonotary within twenty-four (24) hours after the close of the hearing. If the final hearing is not held within the three (3) day period, or if the final decree is not filed within twenty-four (2k) hours after the close of the hearing, the injunction shall be deemed dissolved.

Pa.R.C.P., Rule 1531(f), 42 Pa.C.S.A. (emphasis added).

Although plaintiffs disputed whether the injunction enjoining defendants necessarily involved “freedom of expression” within the meaning of the Rule, the parties agreed to hold the “demand hearing” on Monday, April 20. That Monday, plaintiffs were prepared to submit evidence and present witnesses (many of whom traveled long distances to attend the hearing)' on the merits of the oral contract issue. Defendants, however, insisted that they were entitled to pursue investigation of plaintiffs’ alleged criminal conduct with the United States Attorney’s office, despite any “confidentiality” provisions in the alleged agreement. Plaintiffs therefore alerted the Court that since an agreement, if any, to keep criminal activity confidential is void as against public policy, a hearing would be best reserved until the criminal matters were resolved. N.T. 4/20/92, at 105-117. The Court agreed, issued a continuance, and ordered a recess until it heard from defendants’ counsel or the United States Attorney’s Office. Id. at 117. After no activity of record for .nearly five months, the court entertained defendants’ petition to dissolve. Defendants argued; as they do on this appeal, that the injunction dissolved as a matter of law under Rule 1531, because the court had not held the mandatory hearing on the April 2 injunction. See N.T. 8/31/92. The court entered its order denying the petition to dissolve on September 4, 1992:

And now, this 4th day of September, 1992, upon consideration of Defendants’ Motion to Dissolve a Confidentiality Injunctive Order of April 2, 1992 by this Court, Plaintiffs’ response thereto, as well as other memoranda and oral argument thereon, it appearing that:
1. The provisions of Pennsylvania Rule of Civil Procedure 1531(f) are inapplicable and, therefore, unenforceable in contractual confidentiality agreements which have been negotiated, accepted and entered into by the parties for the purpose of attempting to reach a settlement in the underlying claim; and
2. The language of the Order in question was specifically agreed to by Defendants’ counsel in his letter of March 31, 1992 to this Court;

it is hereby ordered that said motion is denied.

Under Rule 1531(f), a court must hold a prompt hearing upon demand of an enjoined party if a preliminary injunction “involves freedom of expression” and was issued “without notice or after notice and a hearing.” Pa.R.C.P., Rule 1531(f), 42 Pa.C.S.A. This procedural rule was promulgated by our Supreme Court to ensure that our trial courts exercise “the necessary sensitivity to freedom of expression.” Duggan v. 807 Liberty Ave., Inc., 447 Pa. 281, 288 A.2d 750 (1972).

In order to minimize prior restraints on protected speech and to provide prompt adjudication of First Amendment questions, this Court in 1973 adopted Pa.R.C.P. 1531(f), which provides that when a court issues a preliminary injunction involving freedom of speech, the defendant may demand that a final hearing be held within three days and that a final decree be filed within twenty-four hours after the close of the hearing.

Ranck v. Bonal Enterprises, Inc., 467 Pa. 569, 576, 359 A.2d 748 (1976) (emphasis added).

After reviewing the few cases that discuss the application of the rule, it is apparent that it is designed to prohibit prior restraints of speech where the underlying claim involves a judicial determination of whether the challenged speech is protected by the First Amendment. Duggan, supra (district attorney sought to enjoin movie house from showing allegedly “obscene” movies); Ranch, supra (same); School District of Pittsburgh v. Pittsburgh Federation of Teachers, Local 400, 486 Pa. 365, 406 A.2d 324 (1979) (school district sought injunction against teachers for engaging in allegedly illegal picketing). The rule requires only a showing that the restrained speech involves freedom of expression because “until a final hearing is held, it is not known whether the prohibitions of the preliminary injunction prohibit constitutionally protected freedom of expression.” School District of Pittsburgh, 486 Pa. at 373, 406 A.2d at 327-328. To require proof of the unconstitutionality of the speech in order to preliminarily restrain the speech “put[s] the proverbial cart before the horse.” Id. at 373, 406 A.2d at 328.

Here, the majority “puts the proverbial cart before the horse” because it would require that the trial court make factual findings regarding the existence of the oral contract before the injunction could properly issue. Majority opinion, at 54. It also concludes that the trial court improperly found that the parties did in fact enter into a contract. This begs the question of whether the trial court was required to hold a Rule 1531 prompt “demand hearing” on the merits in the first place. The trial court, as I interpret its order, did not hold factually that a confidentiality agreement was reached in this case. Rather, it held, and I agree, that the underlying claim of this case involves an issue of contact interpretation. It does not involve resolution of whether the First Amendment protects the type of speech in which defendants wish to engage. In other words, the case is one of contractual, not constitutional, proportion. The prompt hearing requirements of Pa. R.C.P.Rule 1531(f) therefore did not apply, and the injunction did not automatically dissolve without a hearing. Duggan, Ranch, School District of Pittsburgh, supra. ,

More importantly, however, the court’s April 2 preliminary injunction was not one that was issued “without notice or after notice and a hearing.” It was issued upon defendants’ consent. Therefore, even if the injunction could properly be regarded as involving “freedom of expression,” I would hold that the entry of a consensual injunction waived defendants’ right to demand a prompt hearing: “The defendant always has the option to decline this special procedure [as set forth in Rule 1531(f) ] and to proceed ... by any other techniques available in the ordinary equity action.” Pa.R.C.P.Rule 1531, Explanatory Comment. It would be anomalous to allow defendants to assure plaintiffs that they would not disclose “confidential” information until the court has reached the merits of the issue in due course, and at the same time allow them to determine when the hearing on the merits will be held. This procedure has incredible potential for abuse. Thus, I would hold that the trial court’s reasons for denying defendants’ petition to dissolve were sound.

Finally, there is nothing in this record to indicate that the trial court did not act with the “necessary sensitivity” toward defendants’ “freedom of expression.” Both the trial court and plaintiffs were ready, willing, and able to finally dispose of the merits of the case on April 20, 1992. When defendants insisted they had every right to disseminate information to the United States Attorney General’s Office despite the existence of any alleged contract, the trial court continued the proceedings until the criminal investigation was completed. As the trial court noted: “Again, it was one of your [defense counsel’s] objections” that kept the hearing from going forward. N.T. 4/20/92 at 110.

Given all of the factors above: defendants’ failure to demonstrate that the underlying dispute implicates the First Amendment, their consent to the preliminary injunction, and defendants’ insistence that they proceed to the United States Attorney’s Office during the pendency of the litigation of the oral contract on the merits, I cannot conclude that the trial court’s failure to hold the final hearing on the merits on April 20 resulted in automatic dissolution of the preliminary injunction. The majority’s disposition — reversal of the denial of the petition to dissolve — allows the defendants to deny the existence of plaintiffs’ lawsuit and disclose information which they very well might have agreed to keep confidential. If this does occur, why should the court ever reach the merits of plaintiffs’ case? I would affirm the order of the trial court and remand for further proceedings.

Accordingly, I respectfully dissent.

ORDER

AND NOW, this 7th day of April, 1994, Appellees’ Application to Discontinue is GRANTED to allow the discontinuance of the application for reargument. Appellees’ Application to Discontinue is DENIED insofar as it requests discontinuance of the appeal. The Opinion of this court entered September 24, 1993 is hereby ordered REINSTATED.

      . Since the September 4th order deals with a refusal to dissolve a confidentiality injunction, albeit interlocutory, it is appealable as of right. See Pa.R.App.P. 311(a)(4).
      We would note, however, because the relief sought by the Plaintiffs was equitable in nature, it would have been the better practice for the Chancellor to have denominated its order as a “Decree”, and if there had been an opinion submitted it would have been proper to label it an "Adjudication”. See Pa.R.Civ.P. 1517; see also note 9, infra.
      Despite the lack of conformity with our Rules of Civil Procedure, we find that, in substance, all necessary elements are present for us to assess the Defendants’ claim. Cf. Kazanjian v. New England Petroleum Corp., 332 Pa.Super. 1, 480 A.2d 1153, 1154 n. 1 (1984).

      . The Defendants consist of Waldo Francisco Tornel Quizada, his wife (Valerie Pascual Tornel), his three children (Marisol Tornel Pascual, Valeria Tornel Pascual and David Tornel Pasqual), and two entities (Renta Fruit N.A., Inc. and Importadora y Exportadora Renta-Fruit Limitado), the former is registered to do business in Philadelphia and has Marisol Tornel Pascual as its sole director and officer, while the latter has its principal place of business in Santiago, Chile.

      . The Plaintiffs consist of the following: Sociedad Comercializadora y De Servicios Unifrutti Traders Limitada, a company doing business in Santiago, Chile; Dovex Corp. and Dovex Fruit Co., both having their principal place of business in the State of Washington; and Unifrutti of America, Inc., which does business in Philadelphia.

      . It would seem that counsel appeared in Common Pleas Court to begin negotiations in an effort to settle matters. The jury room was offered by the court to reach an amicable solution. N.T. 2/3/92 at 10.
      However, there was some question as to the authority of the three Defendants (Waldo, Valerie and Marisol) to act on behalf of the missing Defendants. See note 2, supra. Nonetheless, those present agreed discussions could commence and, if a proposed resolution was attained, what had been consented to would be communicated to the absentee-Defendants. There is no indication of record as to when or how this discussion ended.

      . This pleading appears nowhere in the official record forwarded to this Court. See Pa.R.App.P. 1921.

      . If the parties failed to enter into an agreement, it being the underpinning for the issuance of the injunctive order, no justification would exist to continue the enjoinder.

      . The Defendants did not waive this contention inasmuch as counsel requested the Chancellor to proceed to conduct a hearing on the existence of and authorization for the purported oral settlement agreement. N.T. 4/20/93 at 106-08. No such hearing ever took place; the case was continued.

      . An examination of the reproduced record does not fill this void, save for a notation under "Relevant Docket Entries” at "B” which reads: "March 31, 1992 — [Attorney for the Defendants’] letter to Judge....”
      Even if, arguendo, the letter existed, the crux of the dispute centers upon the Defendants’ denial of entering into an agreement or authorizing anyone on their behalf to consummate the agreement under assault here. Thus, the presence of the March 31st letter would not rebut the Defendants’ assertion of non-entry or not authorizing another as to the alleged agreement. A hearing, at which testimony could have been produced, would have been the preferred route to take to resolve the evidentiary ("credibility”) issue as to the agreement in dispute. This did not occur. Therefore, the matter is not resolvable on appeal with the record before us now.

      . Instantly, we would note that the Chancellor prepared no adjudication as to his findings of fact and conclusions of law. See Pa.R.Civ.P. 1517. He merely relied on the substance of his September 4th Decree to give us insight as to his justification for the action taken. See Memorandum from Chancellor to Prothonotary of Philadelphia County dated October 26, 1992, which reads:
      Please be advised that no Opinion will be filed in the above case, as the reasons for the Order of 9-4-92 are contained in the Order itself. All would have been better served had the Chancellor articulated his factual predicate for his legal conclusions to continue the injunction in effect.

      . In response to the Dissent’s position that a resolution of the Defendants’ entitlement to a Rule 1531(f) final hearing is dispositive of the case, we disagree. Even if we were to hold that the Defendants have presented no claim consistent with a "freedom of expression” label, so as to trigger the insulating effect of Rule 1531(f), we are still left with a determination of whether the September 4, 1992, Decree is subject to affirmance under the Defendants' other (second) appellate claim, i.e., does the absence of an oral agreement undermine the validity of an injunction to enforce a non-existent oral contract?
      Resolution of such a contention, of necessity, requires that we make inquiry of the underpinnings for the September 4, 1992, Decree. We may not ignore the issue under the guise that the absence of a “freedom of expression” claim forecloses the use of Rule 1531 (i)'s expedited hearing procedure. See note 11, infra.
      Accordingly, we have addressed the viability and propriety of the September 4th injunction in the initial portion of this opinion from the angle of the factual basis for its issuance.

      . We would observe that there was no request by any of the parties at any of the proceedings below that the Chancellor take judicial notice of an April 17, 1992, court holiday to extend the three (3) day mandated period within which a final hearing be conducted when demanded by a defendant. Therefore, absent such a request below, it is improper to inject into the record an alleged fact (which renders the April 20, 1992, hearing timely under Rule 1531(f)) not properly raised by either party or the Chancellor. See In Interest of: D.S., 424 Pa.Super. 350, 622 A.2d 954 (1993).
      Further, in response to the Dissent’s conclusion that the Defendants’ freedom of expression claim is unsubstantiated from its review of the record, we would remark that it is somewhat premature to make such a determination in the face of a record which the Dissent concedes is not informative as to all of the matter which is subject to enjoinder by the September 4, 1992, Decree. See Dissenting Opinion at 1203, n. 2.
      At a Rule 1531(f) hearing, had one been held, all parties would have had the opportunity to present evidence and argue the First Amendment claim, after which the Chancellor would have decided what course to pursue in light of such evidence. For the Dissent to argue otherwise, in advance of the Defendants’ presentment of their position on the subject, does an injustice to the litigants.
      Finally, we respond to the Dissent’s statement that:
      ... the Majority "puts the proverbial cart before the horse” because it would require that the trial court make factual findings regarding the existence of the oral contract before the injunction could properly issue.... It also concludes that the trial court improperly found that the parties did in fact enter into a contract. This begs the question of whether the trial court was required to hold a Rule 1531 prompt "demand hearing” on the merits in the first place. The trial court ... did not hold factually that a confidentiality agreement was reached in the case.
      Dissenting Opinion at 1203. We disagree. By our ruling, we in no way hold either expressly or impliedly that the Chancellor had to make “factual findings” with regard to the existence of the oral contract in advance of issuing an injunction. On the contrary, our position is that the September 4th Decree has inextricably intertwined therein a determination by the Chancellor, in support of the injunction of even date, that the litigants had negotiated and accepted the terms of an oral agreement to resolve the dispute. As a result of the acceptance of this oral agreement (which is disputed by the Defendants), the Chancellor concluded that Rule 1531(l)'s final hearing was not required and continued in effect the April 2, 1992, order via the September 4, 1992, Decree.
      It is the Chancellor’s attribution of acceptance to the Defendants, which we read as a predicate for the September 4th Decree, that is the element in the Decree which cannot withstand the light of scrutiny, and we find renders it subject to reversal.
      As our discussion supra makes clear on this point, the premise for the Chancellor’s determination for not finding Rule 1531(f) applicable to the case was the (alleged) entry of a contractual agreement by the parties to resolve the conflict. The Plaintiffs sought enforcement of this agreement by means of an injunction issued by the Chancellor, who held that an agreement to settle had been accepted by the parties from a review of the pleadings and memoranda. This was improper in light of a lack of record evidence to support such a ruling. See discussion supra. Therefore, if the predicate for the September 4th Decree is an "oral contractual agreement,” whose existence is disputed by the Defendants, it should not be permitted to stand in the face of a record not consistent with a Decree using that information as its foundation. Such is what transpired here, and, as a result, renders the September 4th Decree vulnerable to attack.

      . The third day under Rule 1531(f) was Friday April 17, a court holiday. Since all parties agreed to the April 20 hearing date, the next possible court date, the "demand hearing” was timely.
      Although the learned author of the Majority Opinion argues that there is no factual basis for this conclusion in the record, see Majority Opinion at p. 1202, n. 11, we must, most hesitantly, disagree. On April 14, 1991, the following colloquy took place:
      Mr. Rutter [counsel for plaintiffs]: Your Honor, may I suggest that we pickup where we left off yesterday afternoon, which is, I take it, there has now been a demand by the defendants within the meaning of Rule 1531F1 for a final hearing? Without agreeing that this is appropriately within the meaning of the definition of 1531 FI, if we deem the demand made as of today the three day limit for the hearing runs on Friday, which is a court holiday, which means it goes to the next official court day, which means Monday, and I’m prepared to start trial Monday morning at 10 o’clock.
      The Court: Are you prepared?
      Mr. Rutter: Yes, sir. I have contacted my witnesses and they're coming from Colorado, Washington, and Chile, but they will be here by Monday morning.
      It was your inquiry, if I remember, Judge Della Porta, at the end of our conference in chambers yesterday as to why shouldn’t we try the case and Mr. Thall [defendants’ counsel] said he agreed the case should be tried. I've now been able to solve my witness problem, sir. That’s why I report to you.
      The Court: Does it solve a problem?
      Mr. Thall: It solves it to a degree. Just so the record is clear, I did submit yesterday, Your Honor, among the four documents which I did submit was a form order together with a demand for a final hearing under 1531F1, the bases being that under the rule, the order which is now in place, signed by Your Honor on April 2, in our view, is a preliminary or special injunction involving freedom of expression, since the provisions of the order preclude my clients from communicating with anyone about there [sic] claims, other people's claims or pursuing discoveiy, were ready to go on Monday.

      The Court: All right. It would seem to me that to a great extent I think that would best resolve the problem that may exist. We’ll go on with trial Monday morning.
      N.T., 4/14/91 at pp. 4-5 (Reproduced Record, pp. 283-284) (emphasis added). Since both parties agreed to the Monday hearing date, we respectfully disagree that we have “inject[ed] into the record an alleged fact ... not properly raised by either party or the Chancellor.” Majority Opinion, p. 1202, n. 11.

      . Additionally, I must note that my review of the record, while not disclosing the true nature of all of the information which is subject to the injunction, indicates that the "expression” in which defendants wish to engage — exclusive of the criminal accusations, which have already been disclosed to the United States Attorney — hardly amounts to "political speech,” the type of expression to which traditional First Amendment protection attaches. At best, the "expression,” dissemination of information regarding plaintiffs’ conduct and filing a federal civil RICO action against plaintiffs, amounts to an attempt to assert an economic advantage over plaintiffs. I would liken this to “commercial speech,” which gives rise to more limited First Amendment protection. Therefore, the "sensitivity to freedom of expression” embodied by Rule 1531(f) is not truly implicated. Here, if the injunction is dissolved, the information may be disclosed forever, and even if there was an enforceable confidentiality agreement, plaintiffs will lose the benefit of their bargain before any court ever rules on the contract. Therefore, the majority decision allows defendants to subvert the very judicial process they apparently wish to employ for redress in the future.

      . Notably, the record does not indicate that any action has been taken by the United States Attorney in this regard since the April 20 "dissemination.”


author: HESTER, Judge:

text:
    641 A.2d 1204
    COMMONWEALTH of Pennsylvania v. Shawn WALKER, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 3, 1994.
    Filed May 17, 1994.

      John W. Packel, Asst. Public Defender, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for the Com., appellee.
    Before ROWLEY, President Judge, and SAYLOR and HESTER, JJ.
   HESTER, Judge:

Shawn Walker appeals from the April 29, 1993 order entered by the Court of Common Pleas of Philadelphia County denying his writ of certiorari. On September 23, 1992, the Philadelphia Municipal Court denied a motion to suppress filed by appellant, found him guilty of carrying a concealed weapon without a license, and sentenced him to one year of reporting probation plus costs. In his motion to suppress, appellant contended that the concealed weapon which police seized must be suppressed since they unlawfully searched him. He argued that police were not empowered to arrest and search him but only could issue a citation for the summary offense he committed for which they initially stopped him. Consequently, he now argues that the trial court erred in denying his writ of certiorari, and we should reverse his conviction. We affirm.

Our standard of review for the denial of a motion to suppress is clear. In Commonwealth v. Haynes, 395 Pa.Super. 322, 333, 577 A.2d 564, 570 (1990), we stated:

Our responsibility is to “determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.” Commonwealth v. Hubble, 318 Pa.Super. 76, 78, 464 A.2d 1236, 1237 (1983). Additionally, we must consider the prosecution’s evidence and so much of the defendant’s evidence as remain uncontradicted. Commonwealth v. Mancini, 340 Pa.Super. 592, 490 A.2d 1377 (1985). When ruling on suppression motions, the suppression court is required to make findings of fact and conclusions of law as to whether evidence was obtained in violation of the defendant’s constitutional rights (Pa.R.Crim.P. 323(i)).

Bearing this standard in mind, the record reveals the following. On April 24, 1992, Philadelphia Police Officer Anthony McFadden was on duty with a partner in the subway station at 1500 Market Street. He observed appellant leap over the exit turnstyle to gain entrance to the train platform without paying a fare. When appellant realized his act had been noticed by the police officers, he started to leave the platform and attempted to evade them. The officers ordered appellant to stop, and he complied. They then frisked the outside of his clothing for their own protection. Officer McFadden felt a hard object in appellant’s left trouser leg from which he removed a handgun. The gun was fully operational and unlicensed.

Appellant moved to suppress the handgun. He does not contend that the instant stop was illegal; instead, he asserts that the search in this case was unlawful since it involved only a summary offense. Consequently, he argues that the gun which police confiscated should be suppressed as fruit of an unlawful search. See Maryland v. Macon, 472 U.S. 463, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985), United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980) (fruits of unlawful search should be suppressed). In support, he notes that attempted theft of public transit services is graded as a summary offense. Next, he contends that warrantless arrests are authorized only in connection with certain summary offenses.

Appellant argues that police possess limited authority to arrest and search when summary offenses are involved. Unlike felonies and misdemeanors, arrest is permitted in summary offenses only when it is authorized by law. Commonwealth v. Bullers, 410 Pa.Super. 176, 599 A.2d 662 (1991). Appellant further notes that the legislature expressly has authorized arrest in certain summary offenses, such as specified violations of the Motor Vehicle Code and in domestic disturbances. Since the legislature similarly has not authorized arrest for the summary offense of attempted theft of public transit services, which appellant committed, he claims by implication that police-lacked lawful authority to arrest and search him.

Appellant further contends that the Comment to Pa. R.Crim.P. 70 does not apply. It provides that, a warrantless arrest may be effected for a summary offense where violence, threat of imminent violence, or a danger that flight might occur exist, even though a warrantless arrest is not specifically authorized for a particular summary offense. Instantly, appellant asserts that his offense did not involve violence, and he did not flee but stopped as soon as police ordered him to stop. Consequently, he contends police were restricted in this instance merely to issuing a citation. In support, appellant cites Pa.R.Crim.P. 51, which provides that summary cases shall be instituted by issuing a citation unless arrest without a warrant specifically is authorized.

Finally, appellant argues that 18 Pa.C.S. § 3904 does not apply. That section provides, “A law enforcement official shall have the same right of arrest without a warrant for any grade of theft as exists or may hereafter exist in the case of commission of a felony.” Appellant interprets 18 Pa.C.S. § 3904 as applying only in instances where a theft is committed in conjunction with a felony. We disagree and find the Commonwealth’s construction of 18 Pa.C.S. § 3904 is more compelling. The Commonwealth interprets 18 Pa.C.S. § 3904 as authorizing police to arrest without a warrant, in all grades of theft.

We note that appellant’s construction of 18 Pa.C.S. § 3904 is illogical in that it would not add to the power of police to arrest for theft since police already possess the power to arrest without a warrant for thefts committed in conjunction with a felony. Moreover, appellant’s interpretation of 18 Pa.C.S. § 3904 would permit police to arrest without a warrant for felonies they do not observe, but render them unable to arrest for summary thefts they do observe. We find appellant’s construction of 18 Pa.C.S. § 3904 is flawed. See 1 Pa.C.S. § 1903(a) (words of a statute should be construed according to their common and approved usage); Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982) (a court must construe the words of a statute according to their plain meaning).

Instead, we agree with the Commonwealth’s interpretation that 18 Pa.C.S. § 3904 authorizes police to arrest without a warrant in all grades of theft. Our conclusion is buttressed by the recent decision of the Pennsylvania Supreme Court in Commonwealth v. Bullers, 536 Pa. 84, 637 A.2d 1326 (1994), in which the Court noted that 18 Pa.C.S. § 3904 granted police specific authority to arrest without a warrant for thefts, and Commonwealth v. Bullers, 410 Pa.Super. 176, 599 A.2d 662 (1991) (same case), where we stated that the language in 18 Pa.C.S. § 3904 sets no limit on police authority to arrest for thefts without a warrant, irrespective of what grade of theft is involved.

The constitutional requirements for effecting a valid arrest are distinct from the constitutional requirements for a valid search and seizure. Commonwealth v. Westerfer, 294 Pa.Super. 459, 440 A.2d 556 (1982). Hence, the requirements for a valid arrest without a warrant are a matter left to state law. See United States v. Carter, 118 F.Supp. 559 (W.D.Pa. 1954). Accordingly, there is no constitutional prohibition to the legislature providing in 18 Pa.C.S. § 3904 that police may arrest in all cases of theft without a warrant as they are empowered to do in the commission of felonies. Compare Commonwealth v. Gibson, 536 Pa. 123, 638 A.2d 203 (1994) (the Court reversed a summary conviction and held that police could not search an apartment and issue a citation for the summary offense of underage drinking without probable cause to believe that underage drinking was taking place in the apartment).

We conclude that 18 Pa.C.S. § 3904 specifically authorized police to arrest appellant without a warrant after they observed him commit the summary offense of attempted theft of public transit services. Therefore, the subsequent search of appellant was lawful as incident to a valid arrest. See United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Commonwealth v. Ellsworth, 421 Pa. 169, 218 A.2d 249 (1966).

Order affirmed.


author: CIRILLO, Judge:

text:
    641 A.2d 1207
    COMMONWEALTH of Pennsylvania v. Barry G. WENTZEL, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted April 7, 1994.
    Filed May 17, 1994.

      Linda F. Gerencser, Asst. Public Defender, Lancaster, for appellant.
    Bruce A, Roth, Asst. Dist. Atty., Lancaster, for the Com., appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   CIRILLO, Judge:

Barry G. Wentzel, Jr. appeals from a judgment of sentence entered in the Court of Common Pleas of Lancaster County on October 26, 1993. Wentzel argues that the trial court erred in denying his Rule 1100 motion to dismiss. We find Wentzel’s argument without merit and, therefore, affirm.

Rule 1100 requires that a defendant, at liberty on bail, must be brought to trial within 365 days from the date on which the complaint was filed. Pa.R.Crim.P. 1100(a)(3). Subsection (c)(3) of Rule 1100 provides that certain time periods are to be excluded in the calculation of the 365 days, including any delay that results from (i) the unavailability of the defendant or his attorney or (ii) any continuance granted at the request of the defendant or his attorney. Id.

The criminal complaint in this case was filed on March 26, 1991, which established a run date of March 25, 1992. A preliminary hearing was scheduled for May 6, 1991, but was continued upon Wentzel’s request. The preliminary hearing was eventually held on July 29, 1991. The continuance resulted in 84 days of delay, which was attributable to Wentzel and was, therefore, excludable. Thereafter, Wentzel was unavailable when the case was listed for trial on November 18, 1991, and remained unavailable until December 20, 1991, at which time his bail was reinstated. Wentzel’s case was listed for trial September 9, 1992.

Wentzel concedes that as a result of his motion for continuance and his failure to appear for the November 18, 1991 trial, 134 days should be excluded from the determination. As a result of this excludable time, Wentzel contends that the listing of his case on September 9,1992, would be 399 “countable” days from the date of the filing of his complaint.

The Commonwealth asserts that as a result of his failure to appear for the November 18, 1991 trial, an additional 55 days should be excluded from the Rule 1100 computation. As a result, the Commonwealth asserts that the excludable time is 189 days, and, therefore, the listing of Wentzel’s case on September 9, 1992, was 344 “countable” days from the date of the filing of his complaint.

The present dispute, therefore, surrounds the amount of time excludable as a result of Wentzel’s failure to appear for his November 18, 1991, trial date. Wentzel argues that following the reinstatement of bail on December 20, 1991, the next term of court in which his case could have been tried was January 7, 1992. The Commonwealth argues that because of Wentzel’s unavailability in November and December, his case was not placed on the January, 1992 trial list. The Commonwealth asserts that the next time Wentzel’s case could have been listed for trial in the ordinary course of court business was in the March, 1992 term, resulting in 55 additional excludable days. With these 55 additional days, the Commonwealth was required to attach the case for trial by September 30, 1992. In fact, the case was attached for trial September 9, 1992.

The test to be met is whether the Commonwealth’s efforts to bring the defendant to trial were reasonable and pursued with due diligence. Commonwealth v. Koonce, 511 Pa. 452, 460, 515 A.2d 543, 547 (1986). Therefore, in determining whether the trial court erred in denying Wentzel’s Rule 1100 motion to dismiss, the sole question presented to this court is:

Whether the additional 73 day delay is attributable to Wentzel’s failure to appear in court on November 18, 1991, or is attributable to a lack of due diligence on the Commonwealth for failing to attach the case for trial in the January, 1992 term?

Under Rule 1100, the Commonwealth may exclude not just the time that the defendant or his attorney is unavailable for trial, but the entire period of delay that results from such unavailability. Commonwealth v. Gorham, 341 Pa.Super. 499, 491 A.2d 1368 (1985). The Superior Court has further held that “the actual delay caused by the defendant’s unavailability includes the period of time from the date of his unavailability until ‘the earliest practicable trial date....’” Commonwealth v. Armstead, 359 Pa.Super. 88, 92, 518 A.2d 579, 582 (1986) (quoting Commonwealth v. Fisher, 334 Pa.Super. 449, 458, 483 A.2d 537, 541-42 (1984)). “Any delay caused by the unavailability of a defendant is excluded from computation of the Rule 1100 period.” Armstead, 359 Pa.Super. at 91, 518 A.2d at 581.

“Although the standard of due diligence does not require the Commonwealth to exercise every conceivable effort, it does require the Commonwealth to make reasonable efforts.” Commonwealth v. Johnson, 405 Pa.Super. 363, 370, 592 A.2d 706, 709 (1991) (quoting Commonwealth v. McCutcheon, 339 Pa.Super. 8, 14, 488 A.2d 281, 284 (1985)). The test in determining whether the Commonwealth acted with due diligence is one of reasonableness under the circumstances. Commonwealth v. Burke, 344 Pa.Super. 288, 496 A.2d 799 (1985). In light of the foregoing standards, we find that the delay period was not attributable to a lack of due diligence on the Commonwealth’s part.

To support his argument, Wentzel relies on Commonwealth v. Browne, 526 Pa. 83, 584 A.2d 902 (1990). In Browne, the Pennsylvania Supreme Court held that the Commonwealth’s inability to correctly “track” a case and bring it to trial before the running of the Rule 1100 time period was not an exercise of due diligence. However, in Browne, the Defendant was available at the time the court failed to include his case on the upcoming trial list. In the instant case, Wentzel was unavailable at the time of the compilation of the January, 1992 trial list.

The Commonwealth contends that in the ordinary course of court business, the earliest practicable date for Wentzel’s case to be attached for trial was the March, 1992 term. We agree.

On December 20, 1991, when Wentzel became available, the upcoming January trial list had already been compiled and distributed two weeks earlier. To change the trial list, at this point, would not have been practicable for the court. Once a trial list is compiled and distributed, a change in the list requires the court to contact and accommodate numerous attorneys and defendants. Clearly, the Commonwealth’s failure to rearrange the trial list for a defendant who has suddenly made himself available for trial is not a failure to exercise due diligence. Considering all the facts and circumstances in this case the Commonwealth made a reasonable effort. ' See Commonwealth v. Polsky, 493 Pa. 402, 426 A.2d 610 (1981); see also Commonwealth v. Johnson, 305 Pa.Super. 310, 451 A.2d 546 (1982). Thus, the next practicable date in which Wentzel’s case could have been attached for trial was March 2, 1992, the next term for the Lancaster County Court of Common Pleas.

We conclude, therefore, that the time from November 18, 1991 to the next practicable court date on March 2, 1992, is attributable to Wentzel and can be excluded by the Commonwealth for Rule 1100 computation. Armstead, supra. With the exclusion of this time period, the Commonwealth’s attachment of Wentzel’s case for trial on September 9, 1992 properly brings Wentzel for trial within 365 “countable” days under Rule 1100. Pa.R.Crim.P. 1100. Accordingly, there is no merit to Wentzel’s claim.

Judgment of sentence affirmed.

      . Wentzel was charged with Driving Under the Influence of Alcohol, 75 Pa.C.S.A. § 3731(a)(1) and (a)(4), Recklessly Endangering Another Person, 18 Pa.C.S.A. § 2705, Simple Assault, 18 Pa.C.S.A. § 2701(a)(1), and three summary offenses pursuant to the Vehicle Code.

      . In Commonwealth v. Steltz, 522 Pa. 233, 560 A.2d 1390 (1989), the Pennsylvania Supreme Court held that one’s voluntary absence from a day set for trial within Rule 1100 is a waiver of that rule, and one is thereafter estopped from asserting a Rule 1100 violation. However, in Steltz, the defendant appeared before court for the trial call and then clearly left town before the jury selection later that day. In the instant case, it appears from the evidence on the record that there was some confusion as to the November 18, 1991 trial date. Wentzel’s immediate contact with the court after learning about the missed date supports his contention that his failure to appear before court was not voluntary under Steltz.


author: ROWLEY, President Judge:

text:
    641 A.2d 1210
    COMMONWEALTH of Pennsylvania, Appellant, v. Ralph A. YOHE.
    Superior Court of Pennsylvania.
    Submitted Jan. 5, 1994.
    Filed May 17, 1994.

      Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for the Com., appellant.
    Vincent C. Murovich, Jr., Pittsburgh, for appellee.
    Before ROWLEY, President Judge, and BECK and JOHNSON, JJ.
   ROWLEY, President Judge:

The Commonwealth has appealed from a trial court order permitting Ralph A. Yohe (hereinafter “appellee”) leave to appeal his summary speeding conviction to the trial court nunc pro tunc. The Commonwealth contends that the trial court abused its discretion and erred as a matter of law in granting the instant petition because appellee is not entitled to nunc pro tunc relief inasmuch as he has not met his burden of demonstrating that fraud or a breakdown in the judicial system was the cause of his failure to file a timely appeal. Having carefully considered this claim, we vacate the trial court’s order of January 5,1993 and remand this matter to the trial court for an evidentiary hearing.

The facts contained in the record certified to us on appeal are few. Appellee was found guilty of a speeding violation in absentia by District Justice Richard J. Terrick on September 22, 1992. No statutory appeal of this conviction was filed. Then, in December of 1992, appellee allegedly received a notice from the Department of Transportation regarding the status of his driver’s operating license. It does not appear from our review of the record that appellee was represented by counsel until after he received this notice.

On January 5, 1993, Vincent Murovich appeared in open court on behalf of appellee with a petition requesting the trial court to grant appellee leave to appeal nunc pro tunc. The petition was unsigned and did not contain a verification statement. At the time the petition was presented to the court by appellee’s counsel, it was admitted that the petition “might not be as complete as” it should be, but appellee’s counsel then went on to make statements to the court, amounting to additional averments not contained in appellee’s petition, as to the alleged facts and circumstances which had precluded appellee from filing a timely appeal. On the basis of these averments alone, the trial court granted appellee leave to file an appeal nunc pro tunc.

At the time the petition was granted, the Commonwealth made an objection because it had not been given any opportunity to contact the magistrate’s office to ascertain whether a notice of conviction had ever been sent to appellee. The Commonwealth’s exception was noted on the record. On January 19,1993, the Commonwealth filed the instant appeal Thereafter, on July 30, 1993, the trial court filed an “opinion” pursuant to Rule 1925(b) of the Pennsylvania Rules of Civil Procedure which states, in its entirety, as follows:

“[Appellant] petitions this Court for leave to file an appeal Nunc Pro Tunc following a conviction for exceeding the posted speed limit. For the reasons discussed below, we grant the petition.
[Appellee] was cited for speeding in September of 1992. The record reveals that following this, he pleaded not guilty via mail and also included the sum owed for the fine as collateral for a hearing. (H.T. 3).
However, for reasons unknown at this time, [appellee] did not receive timely notice of the magistrate’s hearing and was found guilty in absentia. (H.T. 2).
Two possible explanations for the lack of notice are that either the magistrate failed to send the notice altogether, or that [appellee] did not receive the notice if it was mailed to him.
Irrespective of the true cause, we believe that reasonable doubt exists as to the sufficiency of process by the judicial authority involved.
Hence, we properly grant the petition.”

(Trial Court Opinion, 7/30/98). (emphasis added).

Initially, we note that the allowance of appeal nunc pro tune is within the sound discretion of the trial court, and “our scope of review of a decision of whether to permit an appeal nunc pro tunc is limited to a determination of whether the trial court has abused its discretion or committed an error of law.” Commonwealth v. Nicholas, 405 Pa.Super. 242, 246 n. 3, 592 A.2d 98, 99 n. 3 (1991), appeal denied, 529 Pa. 647, 602 A.2d 858 (1992). “Orders granting or denying [a] petition to appeal nunc pro tunc are reversible [only] in instances where the court abused its discretion or where the court drew an erroneous legal conclusion.” Commonwealth v. Jarema, 404 Pa.Super. 121, 125, 590 A.2d 310, 312 (1991). In this case, the Commonwealth contends that the trial court abused its discretion and erred as a matter of law in granting appellee the right to appeal nunc pro tunc because appellee did not establish his entitlement thereto. We agree.

Rule 86(a) of the Pennsylvania Rules of Criminal Procedure provides that an appeal from a summary conviction must be filed within thirty days from the date of the conviction. Further, as reiterated by this Court in Jarema, supra., “ ‘judicial extensions of time are specifically prohibited by Section 5504 of the Judicial Code, except to relieve fraud or its equivalent.’ ” Id. at 125, 590 A.2d at 312, quoting, Commonwealth v. Liptak, 392 Pa.Super. 468, 472, 573 A.2d 559, 561 (1990), citing, Commonwealth v. Englert, 311 Pa.Super. 78, 81, 457 A.2d 121, 123 (1983).

A party seeking leave to appeal from a summary conviction nunc pro tunc has the burden of demonstrating two things: (1) that the delay in filing his appeal was caused by extraordinary circumstances involving fraud or a wrongful or negligent act of a court official resulting in injury to that party and (2) that upon learning of the existence of the grounds relied upon for nunc pro tunc relief, he acted promptly to seek such relief. Commonwealth v. Liptak, 392 Pa.Super. 468, 573 A.2d 559 (1990).

In this case, appellee’s unsigned and unverified petition averred that:

1. Petitioner was out of the county when the notice from the Department of Transportation was received.
2. Petitioner was required to be out of town to attend to important personal business.
3. Petitioner did not return to his residence until the appeal date had run.

(emphasis added). The Commonwealth argues, and we agree, that this document alone is insufficient to meet appellee’s burden of demonstrating that extraordinary circumstances occasioned his delay in filing an appeal from his summary conviction.

Nevertheless, at the time that appellee’s petition was orally presented to Judge Scheib of the Allegheny County Court of Common Pleas, appellee’s counsel engaged in what amounted to a colloquy -with the court and the assistant district attorney. On the basis of statements made by appellee’s counsel at this colloquy, the trial court granted appellee’s petition for leave to appeal nunc pro tunc on the theory that appellee may not have received notice of his conviction or of his appeal rights.

We are constrained to conclude that the trial court abused its discretion in granting the subject petition on the basis of speculation, rather than on record facts. It was appellee’s burden to create a record establishing his request for leave to appeal nunc pro tunc. At the very least, appellee was required to proffer, and the trial court was obliged to receive, some evidence on the record, before appellee’s petition for leave to appeal nunc pro tunc could be granted.

Because no testimony whatsoever was taken in support of appellee’s petition, and because the petition itself does not supply the facts upon which Judge Scheib relied in granting nunc pro tunc relief, we cannot, in our appellate posture, properly review the record and decide whether or not appellee is entitled to the requested extension of time within which to appeal. We must therefore remand this matter to the trial court for a hearing at which both sides will be given an opportunity to present evidence on the record reflecting on the question of whether appellee was or was not advised both of the guilty verdict reached by the district justice and of his right to appeal that conviction within thirty days.

If the record facts show that appellee was properly advised of his conviction and right to appeal, then, clearly, there was no breakdown of the judicial system and appellee is not entitled to an appeal nunc pro tunc; if, however, the record evidence shows that appellee was not so advised, the court must then decide whether or not it is appropriate to permit appellee leave to file his statutory appeal nunc pro tunc.

Order vacated and case remanded for further proceedings consistent with this decision. Jurisdiction is relinquished.

      . On October 15, 1993, the Commonwealth filed a brief in support of its appeal. We note that appellee did not file a responsive brief with this Court.

      . We note that Liptak has been overruled in part by our Supreme Court in Commonwealth of Pa, Department of Transportation v. Tarnopolski, 533 Pa. 549, 626 A.2d 138 (1993). In Tarnopolski, the Supreme Court stated:
      "In Liptak, the Superior Court interpreted Rule 86(g) to preclude a party from withdrawing a guilty plea to a summary conviction subsequent to sentencing. We do not find Liptak to be an accurate interpretation of Rule 86(g), and to the extent that it stands for the proposition that a defendant cannot withdraw a guilty plea subsequent to sentencing in a summary proceeding, it is expressly overruled.”

        Tarnopolski at 554, 626 A.2d at 141. (emphasis added). The Tarnopolski decision does not change the law contained in Liptak regarding the elements necessary for a petitioner to receive leave to appeal a summary conviction nunc pro tunc.

      . Cf. Commonwealth v. McMillian, 431 Pa.Super. 119, 635 A.2d 1100 (1993) (Dissenting Opinion, J. Beck).


author: OLSZEWSKI, Judge:

text:
    641 A.2d 1213
    In the Matter of ADOPTION OF Sheilia Lynette STEPP and Kathleen Diamond Stepp. Appeal of Yvonne STEPP, Natural Mother. In the Matter of ADOPTION OF Sheilia Lynette STEPP and Kathleen Diamond Stepp. Appeal of Lee ROBERTS, Natural Father.
    Superior Court of Pennsylvania.
    Submitted April 27, 1994.
    Filed May 23, 1994.

      Carmen F. Lugo, Erie, for appellees.
    James E. Beveridge, Erie, for CYS, participating party.
    Before ROWLEY, President Judge, and CIRILLO and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

Yvonne Stepp and Lee Roberts appeal the final decree terminating their parental rights to their natural children, Sheilia and Kathleen Stepp. Although they bring separate appeals from the trial court’s decree, the facts of both parents’ appeals are so intertwined that we may address them together. The trial court thoroughly recounted the parents’ history of involvement with the Erie County Office of Children and Youth Services (CYS) in the opinion accompanying its decree nisi of 7/13/93. Because terminating parental rights is the most drastic exercise of the state’s power to act in loco parentis, and because such decisions are extremely fact sensitive, we note with approval the care and detail of the trial court’s findings of fact. We adopt the trial court’s findings, but will briefly summarize them here.

Ms. Stepp and Mr. Roberts, who are not married, have had seven children together. The eldest child, Tiawana Stepp, was born in 1978; Sheilia and Kathleen were born in 1989 and 1992, respectively. CYS began its involvement with the family in 1983, investigating charges of abuse, neglect, and use of drugs and alcohol. All of the children have been adjudicated dependent, and all have spent time in foster care. Ms. Stepp’s and Mr. Roberts’ parental rights have already been terminated as to their sixth child, Andrew; Sheilia is number five and Kathleen number seven.

In 1990, Ms. Stepp was arrested for prescription fraud. Shortly after leaving the Erie County prison on parole, Ms. Stepp gave birth to Andrew, who tested positive for cocaine. Ms. Stepp entered a drug rehabilitation program, but was dismissed for noncompliance. She repeatedly tested positive for cocaine. Less than a month after being re-incarcerated for this probation violation, Ms. Stepp gave birth to Kathleen, who also showed symptoms of cocaine exposure.

During Ms. Stepp’s incarceration and her attempts to participate in a drug rehabilitation program, Mr. Roberts cared for the children. The four youngest children were briefly placed in foster care while Mr. Roberts made plans to attend truck driving school in Ohio. These plans fizzled, however, and the eldest three of these four children were returned to Mr. Roberts’ care. Visits by CYS showed the children to be inadequately clothed and supervised. Mr. Roberts sometimes had Tiawana stay home from school to care for Sheilia while he “attended to business.” Mr. Roberts eventually moved out of the home, and all the children were placed in foster care.

Two hearings followed at which the six children, and then Kathleen upon her birth, were adjudicated dependent. Neither parent attended either hearing. Mr. Roberts did attend a later placement hearing at which he was ordered to undergo alcohol assessment and treatment. While uncooperative at first, Mr. Roberts now concedes that he has an alcohol problem, but does not consider it serious. Meanwhile, Ms. Stepp successfully completed a drug rehabilitation program. Ms. Stepp then suffered a miscarriage, which she claims caused her to resume her use of cocaine. She refused at least one urine screening, and her parole and probation were revoked. She is now apparently nearing the end of her 18-36 month sentence.

Just before her re-incarceration, Ms. Stepp failed to attend the March, 1993 hearing at which the court directed CYS to file a petition for involuntary termination of parental rights. Mr. Roberts was similarly absent, though both parents received notification. Evaluations of Sheilia and Kathleen showed them both to be developmentally delayed, and in need of physical, social, and/or language development therapy. Neither parent has demonstrated a willingness to provide for the special needs of Sheilia and Kathleen.

Another hearing was held in July of 1993 on the termination petition which the parents did attend. The lower court acknowledged the parents’ sincere desire to regain custody of Sheilia and Kathleen and provide for their needs. The court, however, found clear and convincing evidence that both Sheilia and Kathleen had been removed from their parents’ care and placed with CYS for at least six months, and that the conditions which led to their removal continued to exist, and would not be remedied in a reasonable period of time, despite CYS’s efforts. Therefore, given the parents’ history of neglect and the children’s urgent need for a stable, developmentally appropriate environment, the court entered a decree nisi that Ms. Stepp’s and Mr. Roberts’ parental rights should be terminated pursuant to 23 Pa.C.S.A. § 2511(a)(5). Decree Nisi and Opinion, 7/13/93.

Mr. Roberts filed no exceptions to the decree nisi. Ms. Stepp filed one exception, contending only that the court erred in finding that she had missed more than one urine screening. The court accepted this correction, but since Ms. Stepp did not contest its other findings of fact, the court finalized its decree. Final Decree and Opinion, 7/22/93. These appeals followed.

In reviewing an involuntary termination of parental rights, we must review the record to determine whether the Orphans’ Court decree is supported by competent evidence. In re Matsock, 416 Pa.Super. 520, 611 A.2d 737, 742 (1992). We will not reverse the decision of the Orphans’ Court to terminate parental rights absent an abuse of discretion, error of law, or insufficient evidentiary support for the findings of the Orphans’ Court. In re Shives, 363 Pa.Super. 225, 228-29, 525 A.2d 801, 802 (1987).

In re C.E.H., 429 Pa.Super. 304, 307, 632 A.2d 577, 578-79 (1993). Finding no abuse of discretion, we affirm the lower court’s decision to terminate Ms. Stepp’s and Mr. Roberts’ parental rights to Sheilia and Kathleen.

On appeal, both parents argue that the termination decision was not supported by clear and convincing evidence. We disagree. CYS has been involved with Ms. Stepp’s and Mr. Roberts’ children for ten years. The lower court heard extensive testimony on the history of CYS’s intervention, and the specific problems regarding Sheilia and Kathleen. The lower court has amply documented the basis for its termination decision, and our review of the record supports its conclusions.

Mr. Roberts also argues that he has not demonstrated a deliberate intent to relinquish his parental claim to Sheilia and Kathleen. Such a settled purpose is necessary to terminate parental rights under 23 Pa.C.S.A. § 2511(a)(1), but not under subsection (a)(5). The latter standard allows for termination of parental rights when

[t]he child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

The court specifically framed its conclusions of law ini these terms. Decree Nisi Opinion, 7/13/93 at 12. Neither Mr. Roberts nor Ms. Stepp address this conclusion beyond the simple assertion that the family situation was improving somewhat, and could improve more.

Terminating parental rights is a serious remedial measure, but when the facts of a case clearly and convincingly support its use, then we should not hesitate to impose it. Unnecessary delay can only thwart Sheilia’s and Kathleen’s emotional and psychological development. A considerable body of social scientific evidence supports termination over letting children languish in long-term foster care — only thus can we insure that Sheilia and Kathleen are placed in a stable, nurturing environment early enough to meet their developmental needs. See David J. Herring, Inclusion of the Reasonable Efforts Requirement in Termination of Parental Rights Statutes: Punishing the Child for the Failures of the State Child Welfare System, 54 U.Pitt.L.Rev. 139 (1992); C.E.H., supra, 429 Pa.Super. at 312, 632 A.2d at 581 (Olszewski, J. concurring). The lower court’s decision was well documented, carefully reasoned, and clearly is in the best interests of these children.

Order affirmed.