author: FORD ELLIOTT, Judge:

text:
    581 A.2d 665
    John Thomas TROY, Jr., in his own right and as Administrator of the Estate of Jennifer Troy, Deceased and as Father and Next of Friend of John Thomas Troy, III, a Minor, and Marilyn S. Troy v. KAMPGROUNDS OF AMERICA, INC., Frederick L. Madeira; La Deira, Inc.; Agway Petroleum Corporation; Cigna; UBA Fire and Explosion Investigators, Inc.; Emerson Electric Company; and Honeywell, Inc. v. SPEED QUEEN COMPANY, Subsidiary of Raytheon Corporation; A.O. Smith Company; Paul R. Bowers; PAC Industries; Pennsylvania Department of Environmental Resources; William E. Sacra & Associates; and Jerry T. Stahlman v. HAMILTON STANDARD CONTROLS INC., ESSEX FLOW CONTROLS, DIVISION, A DIVISION OF UNITED TECHNOLOGIES, INC. Appeal of Frederick L. MADEIRA and La Deira, Inc., Appellants. John Thomas TROY, Jr., in his own right and as Administrator of the Estate of Jennifer Troy, Deceased and as father and next of friend of John Thomas Troy, III, a minor, and Marilyn S. Troy, Appellants, v. KAMPGROUNDS OF AMERICA, INC.; Frederick L. Madeira; La Deira, Inc.; Agway Petroleum Corporation; Cigna; UBA Fire and Explosion Investigators, Inc.; Emerson Electric Company and Honeywell, Inc. v. SPEED QUEEN COMPANY, Subsidiary of Raytheon Corporation; A.O. Smith Company; Paul R. Bowers; PAC Industries; Pennsylvania Department of Environmental Resources; William E. Sacra & Associates and Jerry T. Stahlman v. HAMILTON STANDARD CONTROLS, ESSEX FLOW CONTROL DIVISION, A DIVISION OF UNITED TECHNOLOGIES, INC.
    Superior Court of Pennsylvania.
    Argued Jan. 18, 1990.
    Filed Oct. 25, 1990.

      Roger T. Shoop, Harrisburg, for appellants (at 176) and for Madeira, appellees (at 192).
    David C. Eaton, Harrisburg, for appellant (at 192) and for Troy, appellee (at 176).
    Dennis L. Platt, Philadelphia, for A.O. Smith, appellee.
    Thomas 0. Malcolm, West Chester, for Honeywell, appellee.
    Robert P. Coleman, Philadelphia, for Speed Queen, appellee.
    Before ROWLEY, FORD ELLIOTT and HOFFMAN, JJ.
   FORD ELLIOTT, Judge:

This is an appeal and a cross-appeal from the grant of summary judgment in an action brought for the death of Jennifer Troy, age 3, the personal injuries of John Thomas Troy, III, age 9, the personal injuries of their parents, Marilyn S. Troy and John Thomas Troy, Jr., and the derivative damages of John Thomas Troy, Jr., which resulted from an explosion and fire in the laundry room of a Kampgrounds of America, Inc. (KOA) campsite located in Dills-burg, Franklin Township, York County, Pennsylvania on Sunday, August 2, 1981. We reverse and remand.

The campground is owned by La Deira, Inc. and operated by its President and chief stockholder Frederick L. Madeira under a franchise agreement with KOA. The laundry room, located in the basement of the campground office building, contained six washing machines and a holding tank for hot water. Propane gas from an outside tank was piped to the three Speed Queen gas dryers and an A.O. Smith gas hot water heater. The propane tank also supplied a gas stove on the second floor of the building.

At the time of the explosion, Marilyn S. Troy, accompanied by her two children, was sorting clothes in the laundry room of the KOA campground, preparing to do the family washing when she saw a “red ball” come from the direction of the dryers. As a result of the explosion and fire, Jennifer Troy received burns over 95% of her body and died two weeks later, Marilyn Troy sustained burns over 80% of her body, and John Troy, III, received burns over 50% of his body. John Troy, Jr., who was returning to the laundry from retrieving his wallet was also injured.

The explosion and the ensuing fire totally destroyed the building. The gas range and some pipe were removed from the site and salvaged by investigators for the campground operator. State Police fire marshalls, investigators for the campground and investigators for Agway, supplier of the propane, had the opportunity to examine the damaged appliances. The building site was leveled and remains of the appliances destroyed on August 5, 1981, the Wednesday following the accident. Because of this, investigators for the Troys as well as the defendants and additional defendants on appeal never had an opportunity to examine either the damaged appliances or the remains of the office building.

On May 11, 1983, a complaint was filed and subsequently amended three times, various additional defendants were also joined. On August 20, 1985, an order was entered granting summary judgment in favor of Emerson Electric and A.O. Smith; summary judgment was also granted in favor of Robertshaw Controls Company, Warren Petroleum Corp. and Hamilton Standard Controls, Inc. Following an appeal, this Court reversed and remanded to allow additional discovery on August 29, 1986, stating that “because of the severe injuries and death, we feel that the ruling denying further discovery was too harsh.” 359 Pa.Super. 635, 515 A.2d 623 (1986), allocatur denied, 515 Pa. 569, 526 A.2d 1191 (1987). On June 7, 1988, A.O. Smith and Emerson Electric filed for summary judgment, Honeywell filed for summary judgment on July 12, 1988, and Speed Queen on September 1, 1988. On February 24, 1989, the order forming the basis of this appeal granted summary judgments to the manufacturer of the dryers, Speed Queen, and to the manufacturer of the hot water heater, A.O. Smith as well as to Honeywell and Emerson Electric, alleged manufacturers of components for these appliances. This appeal followed, the Troys appealing from the grant of summary judgment in favor of Speed Queen and A.O. Smith, and defendants Madeira and La Deira appealing from the grant of summary judgment in favor of Honeywell and Emerson Electric.

In O’Neill v. Checker Motors, 389 Pa.Super. 430, 567 A.2d 680 (1989), we recently reiterated the standard of review for an appeal from the grant of summary judgment:

As an appellate court, we are bound to consider certain principles which dictate when and under what circumstances a trial court may properly enter summary judgment. Goebert v. Ondek, 384 Pa.Super. 100, 108-04, 557 A.2d 1064, 1066 (1989). The trial court must accept as true all well-pleaded facts in the non-moving party’s pleadings, and give to him or to her the benefit of all reasonable inferences to be drawn therefrom
Jefferson v. State Farm Insurance, 380 Pa.Super. 167, 170, 551 A.2d 283, 284 (1988). Summary judgment should not be entered unless the case is clear and free from doubt. Hathi v. Krewstown Park Apartments, 385 Pa. Super. 613, 615, 561 A.2d 1261, 1262 (1989). A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories and admissions on file support the lower court’s conclusion that no genuine issue of material fact exists and that the moving party is entitled judgment as a matter of law. Pa.R.C.P. No. 1035, 42 Pa.C.S.A.; Hatter v. Landsberg, 386 Pa.Super. 438, 440, 563 A.2d 146, 147-48 (1989). See Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 176, 553 A.2d 900, 903 (1989) (entire record before lower court must be thoroughly examined and all doubts as to the existence of a genuine issue of material fact are to be resolved against a grant of summary judgment). We will overturn a trial court’s entry of summary judgment only if there has been an error of law or a clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 318, 549 A.2d 1311, 1313 (1988).

O’Neill, supra, 389 Pa.Super. at 434-435, 567 A.2d at 682.

In the present case, the trial court’s decision is premised on the conclusion that no genuine issue of material fact exists and that the cumulative value of the Troys’ evidence is insufficient to carry their burden “on the subject matter of these motions.” Trial court opinion, at 6. Our thorough review of the record reveals conflict in testimony and controverted issues which appear to us to be material.

The trial court, rather than accepting as true all well-pleaded facts of the non-moving parties and resolving any doubts as to the existence of a genuine issue of material fact against the moving party, did the opposite. The various defendants in the present case have been charged on theories of negligence, product liability and destruction of evidence. Recognizing the malfunction theory of products liability, (malfunction may be inferred from the fact of failure in the absence of abnormal use and reasonable secondary causes), the trial court concluded from the opinion of the Troys’ expert that the Troys would be unable to establish a defective condition. The trial court stated:

[d]espite seven years of extensive discovery, however, no witnesses nor any experts have been able to state with any degree of reasonable certainty that a defect existed in the appliances____

Trial court opinion, at 8.

However, the malfunction theory of products liability does not require the Troys to prove a defective condition.

A plaintiff presents a prima facie case of strict liability by establishing that the product was defective and that the product caused the plaintiff’s injury. In most instances the plaintiff will produce direct evidence of the product’s defective condition. In some instances, however, the plaintiff may not be able to prove the precise nature of the defect, in which case reliance may be had on the “malfunction” theory of product liability. This theory encompasses nothing more than circumstantial evidence of product malfunction. It permits a plaintiff to prove a defect in a product with evidence of the occurrence of a malfunction and with evidence eliminating abnormal use or reasonable secondary causes for the malfunction. It thereby relieves the plaintiff from demonstrating precisely the nature of the defect yet it permits the trier-of-fact to infer one existed from the evidence of the malfunction, of the absence of abnormal use and of the absence of reasonable secondary causes (citations omitted).

Rogers v. Johnson & Johnson Products, Inc., 523 Pa. 176, 182, 565 A.2d 751, 754 (1989). Hence, the trial court erred in holding the plaintiffs to an inappropriate standard to ascertain the existence of a defect in the manufacturing process.

Additionally, the trial court dismissed the January 10, 1989 report of J. Sanford Setchell, P.E., the expert for Madeira and La Deira. Setchell’s report asserts, based on a reasonable degree of engineering and scientific certainty, that the explosion in question was caused by the defective gas pilot light safety valve of the A.O. Smith hot water heater. Spurning Setchell’s report, the trial court reasoned that the negligence of others, particularly the Agway serviceman and the KOA maintenance man or the age of the water heater, may have led to the explosion thereby negating the inference of malfunction defect. Thus the trial court concluded that the Troys were unable to establish the essential element of their cause of action against the appliance and component manufacturers, a defective condition proximately causing injury. The trial court found that there were material issues of fact in dispute concerning the operation and maintenance of the KOA appliances, but that none existed as to the defendants and additional defendant manufacturers of the appliances and their mechanical components.

Reasoning similar to the trial court’s has recently been rejected by the Pennsylvania Supreme Court. In Rogers, supra, such reasoning has been determined to impermissibly encroach upon the province of the jury:

[We cannot agree] ... that a plaintiff who has presented a malfunction case will always be precluded from proceeding upon an alternate theory of negligence. It is altogether possible that a plaintiff’s injury could be caused jointly by a defective product and also by third party negligence so long as the negligence does not constitute a supervening cause of the malfunction. ‘Given the occurrence of a malfunction, the [alleged] negligence assumes legal significance only if it was a superceding cause____ Questions of proximate cause should normally be left to the finder of fact.’ Kuisis [v. Baldwin-Lima Hamilton Corp]., 457 Pa. [321,] 330, 319 A.2d [914,] 920 [(1974) (plurality opinion).]

Rogers, supra, 523 Pa. at 184-185, 565 A.2d at 755.

Significantly, here, the trial court erred in assuming that the negligence theories pleaded against Madeira, La Deira, and KOA were a superceding or supervening cause of injury. The negligence theories advanced against these parties are premised on the failure to take precautions which would have prevented any malfunctions in the appliances from causing an explosion, a concurrent cause rather than a superceding or supervening cause.

Finally, on a motion for summary judgment, the trial court’s task is to determine whether there are controverted issues of fact, not whether the evidence is sufficient to prove the particular facts. Iman v. Hausman, 354 Pa.Super. 458, 512 A.2d 41 (1986). Our supreme court in Rogers, supra, recognized that, as long as the plaintiffs present a case in chief to the jury that is free of secondary causes, the resolution of conflicting evidence is for the jury.

Instantly, in granting summary judgment, the trial court determined the expert testimony upon which the plaintiffs rely to be speculative and mere conjecture.

While the function of summary judgment procedure is to avoid a useless trial, it cannot be used to provide for trial by affidavit or for trial by deposition. 1 Goodrich-Am-ran (2d) § 1035.1 at 455. In Curran v. Philadelphia Newspapers, Inc., 497 Pa. 163, 183, 439 A.2d 652, 662 (1981), the Pennsylvania Supreme Court declared “that trial by testimonial affidavit is prohibited ‘cannot be emphasized too strongly’.”

Moreover, in Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989), the Pennsylvania Supreme Court stated that:

In determining the existence or non-existence of a genuine issue of material fact, courts are bound to adhere to the rule of Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932), which holds that a court may not summarily enter a judgment where the evidence depends upon oral testimony.
“ ‘However clear and indisputable may be the proof when it depends op oral testimony, it is nevertheless the province of the jury to decide, under instructions from the court, as to the law applicable to the facts, and subject to the salutary power of the courts to award a new trial if they should deem the verdict contrary to the weight of the evidence’: Reel v. Elder, 62 Pa. 308.”

Penn Center House, Inc. v. Hoffman, supra, 520 Pa. at 176, 553 A.2d at 903, quoting Nanty-Glo, 309 Pa. 236, 238, 163 A. 523, 524 (1932).

Originally, the Nanty-Glo rule established that testimonial affidavits of the moving party or his witnesses, even if uncontradicted, would not afford a sufficient basis for the entry of a directed verdict, since the credibility of the testimony is still a matter for the jury. 4 Goodrich-Amran (2d) § 1035(b) at 434-35. In Hoffman, the court expanded the Nanty-Glo rule to preclude the trial court from making such determinations of credibility with regard to any party’s oral testimony or testimonial affidavit. The defendant, in Hoffman, in order to support its motion for summary judgment as the moving party, submitted the transcript of the plaintiff’s deposition testimony and a counter-affidavit of its own manager. The supreme court, citing Nanty-Glo, reversed stating that “[a] fair consideration of the pleadings, Hoffman’s testimony and the cross-affidavits reveals that there are genuine issues of fact that must be resolved by a hearing on the merits.” 520 Pa. at 177, 553 A.2d at 903. Although factually distinguishable, the case herein supports the same conclusion. The trial court’s assessment and weighing of the various experts’ testimony during its consideration of motions for summary judgment was inappropriate and premature at this pre-trial proceeding.

Since summary judgment may be entered only in a case that is clear and free from doubt, finding that the defendants, Emerson Electric Company and Honeywell, Inc., and the additional defendants, Speed Queen Company and A.O. Smith Company, have not carried their burden to establish that there are no controverted material issues of fact, and that as moving parties they are entitled to judgment as a matter of law, we conclude the trial court erred in entering summary judgment in favor of these defendants and additional defendants.

In as much as the trial court granted summary judgment to all appellees collectively, and on the same basis, without making individualized determinations as to any particular appellee, we reverse as to all appellees collectively. The appropriateness of summary judgment as to any particular defendant or additional defendant must be left to another day.

Accordingly, for the foregoing reasons, the grant of summary judgment in favor of the defendants, Emerson Electric Company and Honeywell, Inc., and the additional defendants, Speed Queen Company and A.O. Smith, entered February 24, 1989, in the Court of Common Pleas of York County is hereby reversed and the matter is remanded for further proceedings.

Reversed and remanded. Jurisdiction relinquished.

      . The record indicates that the emergency medical personnel at the scene summoned an ambulance for the family dog also burned in the explosion.

      . As a procedural matter, Honeywell and Emerson Electric contend that Appellants, Frederick L. Madeira and La Deira, Inc., having failed to file either an answer or a brief in opposition to the motion for summary judgment lack standing to appeal the grant of summary judgment. Honeywell and Emerson Electric are, in essence, attempting to argue that these appellants were required to respond to the motion for summary judgment. This failure to file documents in response to the motion for summary judgment does not render summary judgment automatic. Knecht v. Citizens & Northern Bank, 364 Pa.Super. 370, 528 A.2d 203 (1984). This Court denied a motion to quash the appeal of Madiera and La Diera without prejudice to raise the issue in their appellate brief on May 9, 1989. Our review of the record reveals this contention to be without merit. The record indicates that the trial court specifically extended the time limit after oral argument to allow the report of Madeira’s and La Deira’s expert, J. Stanford Setchell, P.E., to be submitted to the court and to be considered by the court prior to the summary judgment adjudication. This report was entered of record on January 13, 1988, and mentioned in the trial court opinion.

      . For a general discussion of this concept as basic to the modern analysis of negligence, see Mark F. Grady, "Untaken Precautions,” 18 J.Leg.Studies 139 (1989).


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    581 A.2d 670
    Darlene A. BISHOP and Norman S. Bishop, Appellees, v. Lisa Marie PILLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 10, 1990.
    Filed Oct. 29, 1990.

      William C. Wickkiser, Allentown, for appellant.
    James L. Heidecker, Jr., Allentown, for appellees.
    Before CIRILLO, President Judge, and MONTEMURO and JOHNSON, JJ.
   MONTEMURO, Judge:

This is an appeal from an order of the Court of Common Pleas of Lehigh County granting appellee (“Paternal Grandmother”) visitation with her grandson. Appellant, Lisa Marie Piller (“Mother”), argues that there is no legal relationship between a paternal grandmother of an illegitimate child and the child, therefore, there is no basis for a grant of visitation. The appellant further contends that visitation would not be in the best interests of the child. We disagree and affirm the order of the trial court.

Appellant met Norman Bishop (“Father”) in late 1987 and began dating him in February 1988. She became pregnant in April 1988, and her son, Patrick Jeremy Piller, was born on December 23, 1988. Mother and Father never cohabitated nor planned to be married, however, Father’s name was placed on the birth certificate as Patrick’s father. Additionally, Father’s insurance covered the costs of the birth. N.T., January 10, 1990 at 82. The child has lived with Mother in maternal grandmother’s home since his birth.

There was some evidence that Father has a drug and alcohol problem and that he had been violent towards Mother. N.T. at 85-89. He was incarcerated in May 1989 and is serving a term of 2 to 4 years for aggravated assault on a person who tried to help him while he was attempting to take his own life. N.T. at 29. Before he went to prison, however, he and his mother visited with Patrick and provided some food, formula and clothing. See N.T. at 17-18. The extent of the gifts is unclear, as Mother and Maternal Grandmother disagree with Paternal Grandmother about the amount of the food, etc. N.T. at 66-67, 84. Appellee also donated blood in Mother’s name in case she or the baby needed it and when the child was first born, appellee visited the hospital every day. Thereafter, she tried to visit as much as possible. N.T. at 13, 19-20. Additionally, appellee bought the child shoes (which did not fit), and appellant refused appellee’s offer to buy the child his specialized shoes. N.T. at 19, 36. The trial court found that paternal “grandmother has demonstrated her love and affection for this child by her words and her actions.” Trial Court Opinion, February 21, 1990.

We note that in addition to what appellee and Father did for the child, Mother and Patrick visited Father in Fairview Hospital and in the Carbon County Hospital soon after his incarceration. N.T. at 78, 91. Also, appellant sent Father a Valentine’s Day card from Patrick and her two months after the child was born. There was, then, some attachment between the parents.

On December 13, 1989 the Court of Common Pleas of Lehigh County issued an order granting the paternal grandmother visitation at her home on Sundays from 4:00 p.m. to 6:00 p.m. A hearing was held on January 10, 1990 to determine whether the grandparent of an illegitimate child has rights to visitation. On February 21, 1990 the trial court entered an order confirming custody in Mother and granting visitation to Paternal Grandmother. This appeal by Mother followed.

In reviewing visitation orders, appellate courts are not bound by the trial court’s deductions, inferences and interpretations of evidence. We have independent judgment to consider the merits and to provide an order that is both correct and just. Despite having this broad scope of appellate review, we are mindful that matters of credibility are solely for the trial court’s judgment; only the trial judge can observe demeanor and assess trustworthiness.

Bucci v. Bucci, 351 Pa.Super. 457, 460-61, 506 A.2d 438, 440 (1986) (citing Suroviec v. Mitchell, 347 Pa.Super. 399, 500 A.2d 894 (1985); Commonwealth ex rel. Miller v. Miller, 329 Pa.Super. 248, 478 A.2d 451 (1984)). Because the trial court observed each person involved, we will rely on its assessment of character, interest in the child and ability to care for him.

Mother argues that because father has not filed any acknowledgement of paternity with the Department of Health pursuant to 23 Pa.C.S.A. § 8302 there is no legal relationship between the child and him and therefore no legal relationship between the paternal grandmother and Patrick. The language of the statute, however, is not mandatory in that it provides, “The father of a child born to an unmarried woman may file with the Department of Health----” 23 Pa.C.S.A. § 8302 (emphasis added). In the present case, Father did not file with the Department of Health, but none of the parties are disputing his paternity. Mother placed his name on the birth certificate, and Father did not contest it. N.T. at 101. It would be unfair to acknowledge Father’s paternity for some purposes, such as using his insurance to cover costs, but not others, such as allowing Paternal Grandmother a relationship with her grandson.

Given that all of the parties agree about who the father is, there is no reasonable distinction that can be drawn that would allow Maternal Grandmother more rights than Paternal Grandmother. Certainly they both share the same biological relationship with Patrick, and as far as we can tell, Patrick would benefit greatly by having meaningful contact with both of his grandmothers. We are unwilling to distinguish between the grandparents absent a finding that visitations with one would not be in the child’s best interest.

Title 23 Pa.C.S.A. §§ 5311-5313 provides three instances in which the court should consider visitation for grandparents: (1) when one parent has died; (2) when the parents are separated for six months or more; (3) when the child has lived with the grandparents for a year or more. In each instance, the statute explicitly states that visits must be in the best interest of the child. The trial court posited that appellee could get visitation under the second situation, that the parents had been separated. See 23 Pa.C.S.A. § 5312. The trial court states that it is using the common meaning of the word “separate” taken from the Webster’s Third New International Dictionary; “separation is defined as an act or instance of dividing or an act or instance of parting company.” Trial Court Opinion, February 21, 1990 at 5. This may be strained in that the understanding of the word “separate” when attached to people who are romantically involved is usually applied to the dissolution of a marriage. Mother and Father were never married or even cohabitating. N.T. at 35. Nonetheless, we find the trial court’s usage to be legitimate under the circumstances.

Whether or not the parents were separated is not the most important question, however, because “[t]he guiding polestar in deciding all cases involving a child, including whether grandparent visitation rights should be awarded is the best interests of the child.” Hughes v. Hughes, 316 Pa.Super. 505, 508-09, 463 A.2d 478, 480 (1983). See also Commonwealth ex. rel. Zaffarano v. Genaro, 500 Pa. 256, 261, 455 A.2d 1180, 1182 (1983); Bucci v. Bucci, supra, 351 Pa.Super. at 460, 506 A.2d at 439; Commonwealth ex rel. Miller v. Miller, supra, 329 Pa.Super. at 253, 478 A.2d at 453. In a grandparent visitation case, the grandparent has the burden to prove that it is in the child’s best interest to have “some time” with the grandparent. Bucci, supra, 351 Pa.Super. at 460, 506 A.2d at 440. The burden is lower than in a custody or partial custody situation since the amount of time that the child would be away from his parent is less.

In the present case, appellee has met her burden. She has demonstrated her love for Patrick and her desire to have some relationship with him. The policy in this Commonwealth has been that grandparent visitation is preferred unless there are overriding factors such as intense animosity between the adults involved. See, Bucci, supra,; Suroviec, supra,; Miller, supra. We have also recognized the visitation rights of a father of a child born out of wedlock. See, Commonwealth ex rel. Peterson v. Hayes, 252 Pa.Super. 487, 381 A.2d 1311 (1977). If we recognize the father’s connection to the child and allow him to visit, the next logical extension is to allow the paternal grandparents visitation as well. See generally, F.H. v. K.L.M., 740 P.2d 1006, 1007 (Colo.App. 1987) (paternal grandparents of illegitimate child whose father’s paternity is not questioned have standing to request visitation with child); Matter of Adoption of Donald U, 482 N.Y.S.2d 74, 105 A.D.2d 875 (1984) (paternal grandparent allowed to visit illegitimate child after his adoption went through).

The appellant was unable to produce concrete evidence that there would be any detriment to Patrick from spending time with appellee. Mother and Maternal Grandmother both testified that they did not want appellee to have visitation with Patrick because someday Mother hoped to be married and have more children. They voiced their concern that Patrick would be singled out because he had a different father and grandmother, and that would be confusing. N.T. at 45, 62, 85, and 115-16. This reasoning is not compelling. Mother is not dating anyone let alone engaged or pregnant with another child. Her concern is about a hypothetical event sometime in the future.

Appellant and her mother also expressed concern that after his prison term was over, Father would return to appellee’s home. Appellee, in fact, testified that this would be the case. N.T. at 28. Appellant is worried that Father has a violent personality and that would not be positive for Patrick. Again, this concern is about an event that will take place in the future. Visitation orders, such as the one currently before us, are open orders. If any of the concerns that Mother expressed do occur, she can petition the court to reconsider the order. Likewise, sometime in the future, appellee or Father could do the same. See, e.g., S.H. v. B.L.H., 392 Pa.Super. 137, 572 A.2d 730, 732 n. 1 (1990) (do not need change of circumstances to petition to modify visitation terms of custody order); Martin v. Martin, 386 Pa.Super. 328, 562 A.2d 1389 (1989).

We must compare Mother’s theoretical concerns with the current benefits that Patrick would gain by knowing his grandmother. Having one more adult to love and care for him can not be viewed as against his interests. In Miller, supra, this court stated:

[s]ince the polestar of our analysis is the best interests and welfare of the child, we cannot overlook the ultimate result that grandparent visitation is beneficial for a child’s development in that it establishes family ties which can continue long beyond childhood.

Miller 329 Pa.Super. at 257, 478 A.2d at 455. Fostering strong and healthy family relationships is important for all children, and may be even more so for a child like Patrick who is unable to know his father. His emotional and intellectual development could be enhanced through his growing relationship with both grandmothers. It is inconsequential whether appellee can give Patrick many material objects as long as she is willing to continue her show of love and affection. These things are surely more important for a developing child. Therefore, Paternal Grandmother will be permitted to visit with Patrick pursuant to the lower court order.

Order granting visitation to appellee affirmed.


author: TAMILIA, Judge:

text:
    581 A.2d 674
    Mary NESSA v. Neil NESSA, Appellant.
    Superior Court of Pennsylvania.
    Argued June 7, 1990.
    Decided Oct. 23, 1990.
    Kathryn G. Carlson, Doylestown, for appellant.
    John D. Conroy, Doylestown, for appellee.
    Before CAVANAUGH, TAMILIA and CERCONE, JJ.
   TAMILIA, Judge:

Appellant/husband and appellee/wife were married on March 18, 1966 and two children were born of the marriage, Christopher, age 22 and Catherine, age 16. Following the filing of husband’s complaint in divorce, a property settlement agreement was executed by the parties on April 22, 1983 and incorporated into the divorce decree on May 2, 1983. At the time of their divorce, husband was a pilot for Pan American Airlines (Pan Am) and had additional sources of income. The agreement provided for $1,400 per month unallocated family support payments which were to continue for ten years despite the eventual emancipation of the older child. It was also provided that the payments in the final five years would increase at a fixed rate if husband continued to be employed by Pan Am. Unfortunately, as of August 1, 1989, husband was no longer employed with Pan Am and began receiving retirement disability income due to his suffering from cancer.

Because of the change in circumstances, specifically, husband’s illness and his extraordinary medical expenses, his change in income and his son’s completion of college, husband petitioned the court to modify the support Order. Wife argued the property settlement agreement acted as a bar to the court taking any action to modify the Order. The trial court agreed and denied husband’s petition.

On appeal, husband argues a separate support Order was entered on August 29, 1983, based upon the support terms of the property settlement agreement. While the agreement itself may be non-modifiable, the separate support Order based on the terms of the agreement is modifiable. Husband relies on Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988), and cases following to prove the Order was modifiable regardless of whether or not the support agreement was. Although we agree Sonder is controlling, we reach a different conclusion from husband and affirm the Order of the trial court.

The separate support Order which husband argues is modifiable was a domestic relations office form, signed by the parties, to effectuate the support terms of the property settlement agreement. Husband cannot now claim this support Order was entered separately, pursuant to a new complaint with independent consideration from the agreement, making it modifiable. The Order was entered for the purpose of making the agreed upon payments through the domestic relations office; it was not a new and separate Order. For this reason, the instant case is not virtually identical to Knorr v. Knorr, 380 Pa.Super. 11, 550 A.2d 1338 (1988), as husband claims. In Knorr, the parties entered a marital settlement agreement which provided for husband to pay $200 per month in support until husband gained employment. At that time, the required payment would be determined by the support guidelines of the court of common pleas. Approximately eight months later, wife filed a complaint for support and as a result, the court entered an Order by consent of the parties which provided for support payments of $200 per month which was specifically enforceable by the court’s contempt powers. This Court held that such an Order is modifiable because it had been entered in response to a separate petition by wife and was specifically made enforceable pursuant to the court’s contempt powers.

In the instant case, the property settlement agreement, incorporated into but not merged with the divorce decree, is the actual focus of husband’s petition to modify. His current circumstances are such that he wants to change the agreement. The pertinent sections of the agreement are as follows:

ARTICLE VIII—FAMILY SUPPORT
Pursuant to Section 71(b) of the Internal Revenue Code, the “HUSBAND” shall pay the amount of One Thousand Four Hundred ($1,400.00) Dollars per month as and for family support to the “WIFE” and minor children of the marriage. All payments herein shall be unallocated. Such payments shall be made through the Office of Domestic Relations, Bucks County, Pennsylvania, commencing May 1, 1983 and shall continue until June 1, 1993 for a total of 121 consecutive payments. Thereafter, payments for “WIFE” shall cease. However, at that time, to the extent that the youngest child has not been emancipated, support shall be determined based on the circumstances of the parties and the status of the youngest child in accordance with the law of the Commonwealth of Pennsylvania.
The payment of the One Thousand Four Hundred ($1,400.00) Dollars per month and increases theron [sic] set forth herein shall not be reduced when the oldest child becomes emancipated.
The payment of the One Thousand Four Hundred ($1,400.00) Dollars and increases thereon for the full term provided shall be binding on the heirs of the “HUSBAND” and shall be a lien against his estate in the event of his death, only if the life insurance set forth in Article XII herein, is not in full force and effect at the time of his death, and is available in the full amount of $100,000.00.
Further the $1,400.00 shall remain fixed for five (5) years and shall not be subject to increase. Thereafter if the “HUSBAND” is still employed by Pan American World Airways, support shall increase 5% per year of the preceding year’s payment until the 121 months of payment has been completed.
Pursuant to Internal Revenue Code Section 71, the family support payment shall be included as income on the “WIFE’S” income tax returns beginning in the calendar year 1983. In addition, such payments shall be deemed a deduction on the “HUSBAND’S” income tax return pursuant to Internal Revenue Code Section 215, beginning the same calendar year.
ARTICLE XX—EFFECT OF DIVORCE UPON AGREEMENT
The parties agree that this Agreement shall be made a part of any decree of divorce or dissolution of marriage in this state or any other state of competent jurisdiction and incorporated therein. It is further agreed by and between the parties that in the event “WIFE” or “HUSBAND” obtains a decree in divorce or dissolution of marriage in the Commonwealth of Pennsylvania under the No-Fault Statute, Act 26 of 1980, the parties agree that this Agreement shall be incorporated in the Decree of Divorce or dissolution of marriage in accordance with said Act 26-1980. (Emphasis added.)
ARTICLE XXI—AGREEMENT TO CONTINUE IN EVENT OF DIVORCE
Notwithstanding incorporation of this Agreement in any decree of divorce or dissolution of marriage in this State or any other state of competent jurisdiction, as hereinbefore set forth in Article XX of this Agreement, this Agreement shall not be merged with any such judgment entered herein, but shall remain in full force and effect unless and until it is terminated either by mutual written consent of both parties, or to the extent it is appropriately terminated by the death of either party. The failure of either party to insist upon strict performance of any of the provisions of this Agreement shall not be construed as a waiver of any subsequent default of the same or similar nature. In the event that the marriage of the parties hereto is terminated by divorce, this Agreement shall nevertheless remain in full force and effect, shall continue to have independent legal significance and shall survive such decree or judgment and shall not in any way be affected thereby, except as provided for herein. (Emphasis added.)

In Sonder, supra, husband and wife entered into a property settlement agreement which included provisions for spousal and child support and was expressly made to be incorporated with the divorce decree and not merged therewith. One of the issues we addressed on appeal was the extent to which the agreement survived as a separate, enforceable contract once it was incorporated into the decree.

After explaining that support Orders are enforceable by operation of law because they are created by statute and support agreements are governed by the law of contracts and as such are not modifiable by the court, we stated:

We, therefore, hold that any agreement which speaks of incorporation but rejects merger was intended by the parties not to be brought under the provisions of sections 401, 501(e) and (f) and 503 [of the Divorce Code] for the enforcement of separation agreements. Only by an Order which does not reject merger, or requires court enforcement of the agreement, does it become part of the decree and have the effect of an Order. By renouncing merger and failing to have language in the decree requiring enforcement as a court Order, the contract survives.

Id., 378 Pa.Superior Ct. at 493, 549 A.2d at 165.

In summation, we hold separation or property settlement agreements for support remain as contracts to be enforced at law or in equity unless they are merged into a divorce decree or court Order. Upon merger, they are superseded as contracts and take on all of the attributes of support Orders for purposes of modification and enforcement.
In this case, since there was no merger, the agreement may not be modified or enforced as a court Order. As a contract, it may be enforced only in accordance with the law regulating contracts through proceedings of law or in equity.

Id., 378 Pa.Superior Ct. at 512-13, 549 A.2d at 175.

This Court, in Andursky v. Andursky, 382 Pa.Super. 1, 554 A.2d 571 (1989), applied our ruling in Sonder where the language of the property settlement agreement was similar to the agreement in Sonder. We found the Andursky agreement was a contract, governed by principles of contract law since it was incorporated into but not merged with the divorce decree. The agreement contained a specific provision for incorporation and not merger, therefore, it survived as a contract and was not modifiable by the court.

The language of the agreement in the instant case compels us to affirm the denial of the petition to modify, notwithstanding husband’s unfortunate circumstances. The agreement clearly provides for incorporation and not merger and was intended to have the force and effect of a written contract between the parties, beyond the scope of the divorce decree. The trial court was correct in finding it had no power to modify the agreement.

Order affirmed.

      . The trial court found Sonder was not controlling but relied on a different line of case law to support its ruling that the separation agreement and decree was a bar to husband’s petition to modify.

      . We also hold that this agreement is not affected by the amendment to the Divorce Code, § 401.1(b)(c), added 1988, Feb. 12, P.L. 66, No. 13, as the agreement predated the amendment. The Divorce Code at 23 P.S. § 103 Construction, provides:
      This act shall not affect any marital agreement executed prior to the effective date of this act or any amendment or modification thereto.


author: CAVANAUGH, Judge:

text:
    581 A.2d 677
    Abe PITTS, Appellant, v. PORT EAST PULASKI HIGHWAY, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1990.
    Decided Oct. 26, 1990.
    Petition for Allowance of Appeal Denied April 1, 1991.

      John J. Fonash, III, Philadelphia, for appellant.
    Carl D. Buchholz, Philadelphia, for appellee.
    Before CAVANAUGH, WIEAND and HUDOCK, JJ.
   CAVANAUGH, Judge:

Did the trial court err in denying the appellant’s petition to amend its pleading to designate the defendant as Port East Transfer Co., Inc. instead of Port East Pulaski Highway?

Plaintiff, Abe Pitts, filed suit against Port East Pulaski Highway on January 20, 1984 and claimed damages for personal injuries which he sustained in an accident on July 19, 1983. Plaintiff took a default judgment against the designated defendant and refused a request to open the judgment against Port East Pulaski Highway. Port East Transfer Co., Inc. then moved to open the default judgment. After submission of depositions and memoranda to the court, the Honorable Thomas A. White entered an order on January 17, 1985 which opened the judgment and granted plaintiff twenty days to amend his complaint and name the proper party defendant. Plaintiff did nothing in compliance with the order and finally on September 1, 1989, filed a petition to amend to substitute the name of the intended defendant, Port East Transfer Co., Inc. The denial of this petition by D’Alessandro, J. gave rise to the present appeal.

Initially, we find that appellant’s appeal may properly be considered by us as an appealable order since his suit as it now stands is, and as all parties agree, a suit against a nonentity. As we said in Barr v. General Accident Group Ins. Co., 360 Pa.Super. 334, 520 A.2d 485 (1987) “although appellant would not technically be out of court, the practical result is that he would not be able to seek recovery of damages to which he claims entitlement”, Id., 360 Pa.Superior Ct. at 344, 520 A.2d at 490. See also Gabriel v. O’Hara, 368 Pa.Super. 383, 534 A.2d 488 (1987); Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 348 A.2d 734 (1975) (“The finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications”).

Appellant cites Pa.R.C.P. 1033 and a number of Pennsylvania cases which undisputably stand for the proposition that Pennsylvania courts are liberal in permitting amendments. However, appellant has already received the benefit of this liberal policy granting leave to amend on January 17, 1985. The lower court placed great reliance on the fact that appellant chose to ignore Judge White’s 20-day permissive amendment order and wait until amost 5 years later to present the instant petition to amend and we agree. Our courts have long held that the decision to grant or deny permission to amend is within the discretion of the trial court and will be reversed only upon a showing of abuse of discretion. Cf Junk v. East End Fire Dept., 262 Pa.Super. 473, 396 A.2d 1269 (1978); Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963); Hachick v. Kobelak, 259 Pa.Super. 13, 393 A.2d 692 (1978). Significantly, appellee, Port East Transfer Co., Inc., states that by reason of the failure of appellant to comply with Judge White’s order, they have not been a party to the case during the years the matter was allowed to languish by appellant, and they were unable to conduct discovery or make other trial preparations. Port East Transfer Co., Inc. had no incentive to locate and identify witnesses and that the motion to amend was not filed until the case appeared on the trial list.

We conclude that appellant’s failure to bring the proper party onto the record, despite the court’s order granting him time to do so, supports the trial court’s finding of prejudice and we affirm the order of February 5, 1990 which denied the petition to amend.

Order affirmed.


author: WIEAND, Judge: CIRILLO, President Judge, BROSKY, Judge,

text:
    581 A.2d 929
    COMMONWEALTH of Pennsylvania, Appellant, v. Eric HARVIN, a/k/a Derrick Jones, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 24, 1990.
    Filed Aug. 27, 1990.
    Reargument Denied Nov. 2, 1990.

      Kathy L. Echternach, Asst. Dist. Atty., Thorndale, for Com., appellant.
    Bradley S. Bridge, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and WIEAND and BROSKY, JJ.
   WIEAND, Judge:

The Juvenile Act, at 42 Pa.C.S. § 6302, defines “delinquent act” to exclude “[a] crime committed by a child who has been found guilty in a criminal proceeding for other than a summary offense.” The trial court in this case held the exclusionary language was applicable only to crimes committed by a child after he or she had been found guilty in a criminal proceeding. The Commonwealth contends, however, that the statute must be interpreted to deprive the Juvenile Court of jurisdiction in all juvenile proceedings which are pending at the time when the juvenile is found guilty or pleads guilty in a criminal proceeding. This issue of first impression comes before this Court under the following circumstances.

On March 19, 1987, a juvenile petition was filed in which seventeen year old Eric Harvin was charged with committing a robbery on March 5, 1987. The petition was scheduled for hearing before the Juvenile Court on. April 23, 1987. In the meantime, on April 2, 1987, Harvin entered a plea of guilty to an information charging him with theft, conspiracy and unauthorized use of an automobile in an unrelated matter. The Commonwealth thereafter withdrew the pending juvenile petition and filed an information charging him as an adult. Prior to trial on this robbery charge, Harvin filed a motion to quash the information on grounds that exclusive jurisdiction over the case was vested in the Juvenile Court. The trial court agreed. Therefore, it quashed the information and transferred the case to juvenile court. The Commonwealth has appealed from the trial court’s order.

“Generally, the prosecution of criminal offenses charged to juvenile offenders is within the exclusive jurisdiction of the juvenile court.” Commonwealth v. Leatherbury, 390 Pa.Super. 558, 560, 568 A.2d 1313, 1315 (1990). Excluded from the definition of “delinquent acts,” however, are murder, summary offenses, and crimes committed by children who have been found guilty in other criminal proceedings. 42 Pa.C.S. § 6302. The language which gives rise to the instant appeal was added by an amendment to the Juvenile Act adopted by the legislature on December 11, 1986.

In Barasch v. Pennsylvania Public Utility Commission, 516 Pa. 142, 532 A.2d 325 (1987), aff'd, 488 U.S. 299, 109 S.Ct. 609, 102 L.Ed.2d 646 (1989), the Supreme Court approached the matter of statutory interpretation in the following manner:

It is well settled that the object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the legislature as expressed by the words employed, 1 Pa.C.S. § 1921(a); Commonwealth v. Fish er, 485 Pa. 8, 400 A.2d 1284 (1979); Pennsylvania Human Relations Commission v. Alto-Reste Park Cemetery Ass’n., 453 Pa. 124, 306 A.2d 881 (1973); Clearview Bowling Center, Inc. v. Hanover Borough, 430 Pa. 579, 244 A.2d 20 (1968).
It is fundamental that in ascertaining the legislature’s intent, the plain words of its laws may not be ignored. Stegmaier Estate, 424 Pa. 4, 225 A.2d 566 (1967). A court may not alter, under the guise of interpretation, the express language and intent of the legislature. Commonwealth v. Pope, 455 Pa. 384, 317 A.2d 887 (1974); see Zimmerman v. O’Bannon, 497 Pa. 551, 442 A.2d 674 (1982). Thus, where the words of a statute are clear and free from ambiguity, a court may go no further to determine the legislative intent. Kritz Estate, 387 Pa. 223, 127 A.2d 720 (1956); Rich v. Meadville Park Theatre Corp., 360 Pa. 338, 62 A.2d 1 (1948); Commonwealth ex rel. Smith v. Clark, 331 Pa. 405, 200 A. 41 (1938); see 1 Pa.C.S. § 1921(b), (c). It is only when the words of the statute are not explicit that the intention of the legislature may be ascertained by considering other means of statutory interpretation or construction. Davis v. Sulcowe, 416 Pa. 138, 205 A.2d 89 (1964); Commonwealth v. Chester County Light and Power Co., 339 Pa. 97, 14 A.2d 314 (1940).

Id., 516 Pa. at 155-156, 532 A.2d at 331-332.

Our interpretation of the amendment to the Juvenile Act is in accord with and we adopt the reasoning of the trial court as follows:

[T]he question here is whether it is the intent of the Legislature that once a child has been found guilty in an adult proceeding, all crimes with which the child is charged be automatically prosecuted in an adult court, including crimes committed by the child before the finding of guilt in adult court, or that only those crimes committed by the child after the finding of guilt in adult court be prosecuted in adult court unless the Commonwealth successfully petitions Juvenile Court to transfer such cases to adult court.
This Court believes that a fair construction of the definition of delinquent act in the Juvenile Act in accordance with the rules of grammar and the common and approved usage of the words in such definition compels the conclusion that the Legislature intended that only those crimes committed by a child after the child has been found guilty in an adult proceeding are to be prosecuted in adult court (unless transferred to adult court pursuant to the provisions of 42 Pa.C.S.A. § 6355).
In reaching this conclusion, this Court notes that the definition of delinquent act speaks of a crime “committed” by a child who “has been” found guilty in an adult court. The use of the [words] “has been found guilty” in conjunction with the reference to the “commission” of the crime clearly conveys that only those crimes committed after a defendant “has been found guilty” in adult court are [not] to be characterized as delinquent acts. The Commonwealth would have this Court construe the definition of delinquent act as if it read “a crime committed by a child who has been found guilty [or who is subsequently found guilty] in a criminal proceeding ...” The definition of delinquent act plainly does not read as the Commonwealth would urge this Court to interpret it. If the Legislature had intended that an act which on the date of its commission would be properly categorized as a delinquent act for purposes of the Juvenile Act, could subsequently lose its status as a delinquent act by virtue of circumstances occurring after the commission of the act, one would have expected the Legislature to have expressly so provided.

This interpretation of the statute’s exclusionary language is consistent with the principle of statutory construction that “[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage....” 1 Pa.C.S. § 1903(a). Inasmuch as the intent of section 6302 is to decrease the jurisdiction of the juvenile court, moreover, its provisions must be strictly construed. See: 1 Pa.C.S. § 1928(b)(7). The trial court’s interpretation of the statute is also consistent with the stated legislative intent underlying the enactment of the Juvenile Act. This purpose is stated at 42 Pa.C.S. § 6301(b)(2) as follows:

(b) Purposes.—This chapter shall be interpreted and construed as to effectuate the following purposes:
(2) Consistent with the protection of the public interest, to remove from children committing delinquent acts the consequences of criminal behavior, and to substitute therefor a program of supervision, care and rehabilitation.

Thus, the Supreme Court has observed:

By the new Juvenile Act, the legislature has, in no uncertain terms, made it clear that whenever possible its provisions should control in resolving matters pertaining to juveniles. While the Act envisions instances where its provisions would be inadequate and the more drastic remedies of the criminal court must be employed, it is equally clear that the preference was to treat the juvenile delinquent, whenever possible, in accordance with the procedures specially designed for the juvenile offender. In essence, the Act creates a presumption that the errant juvenile can best be supervised, directed and rehabilitated under its provisions absent evidence to the contrary. It therefore follows that the party raising the objection to the juvenile court’s jurisdiction must shoulder the burden of presenting evidence to establish those facts which would warrant the conclusion that in a given case the provisions of the Act are inappropriate.

Commonwealth v. Greiner, 479 Pa. 364, 370, 388 A.2d 698, 701 (1978) (footnote omitted). See also: Commonwealth v. Rush, 522 Pa. 379, 383-384, 562 A.2d 285, 287 (1989).

The Commonwealth argues that because the juvenile has been found guilty of a criminal offense he is no longer amenable to treatment in the juvenile system. It also contends that it makes no sense to permit the Juvenile Court to continue to exercise jurisdiction in one matter after the juvenile has been convicted of criminal conduct in adult criminal proceedings. The answer to both of these expressed fears is in the provisions of 42 Pa.C.S. § 6355 which permit the Commonwealth to petition for a transfer to criminal court of charges pending in the juvenile court. This will enable the court in pending juvenile matters to determine on a case by case basis whether the juvenile can continue to benefit from the treatment prescribed by the Juvenile Act.

Because the words of the statute are clear and free from ambiguity, a court should not disregard them “under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b). We hold, therefore, that it is only where a finding of guilt in criminal proceedings precedes the commission of an offense by a juvenile that the amendment to 42 Pa.C.S. § 6302 automatically deprives the Juvenile Court of jurisdiction to hear a petition alleging delinquency because of such offense.

The order of the trial court is affirmed.

CIRILLO, President Judge, and

BROSKY, J., file concurring opinions.

CIRILLO, President Judge,

concurring.

I concur in Judge Wieand’s decision to affirm the trial court’s quashal of the complaint against Harvin thereby requiring the Commonwealth to file charges in the juvenile court. However, I can only concur in the result because I agree with the Commonwealth that once a child has been found guilty in a criminal proceeding, no other crimes involving that child, whether committed before or after the finding of guilt, can constitute a “delinquent act.” 42 Pa.C.S. § 6302. In my opinion, both the purpose of the Juvenile Act and the legislative intent behind the 1986 amendments to the Juvenile Act support this interpretation. Therefore, it would have been proper to file a juvenile petition against Harvin and allow the juvenile court to inquire whether Harvin had a prior finding of guilt in a criminal proceeding as of the time he was brought before the juvenile court. If the juvenile court concluded that Harvin did have a prior finding of guilt in a criminal proceeding, the the juvenile court should have ruled that the second crime did not constitute a delinquent act and should have immediately certified Harvin for trial as an adult.

The Juvenile Act, 42 Pa.C.S. § 6301 et seq., applies exclusively in certain situations, including “[proceedings in which a child is alleged to be delinquent or dependent.” 42 Pa.C.S. § 6303(a)(1). A child is not alleged to be delinquent every time he is accused of committing a crime. Murder, summary offenses, and “a crime committed by a child who has been found guilty in a criminal proceeding for other than a summary offense” do not constitute delinquent acts. 42 Pa.C.S. § 6302. Because these crimes are not delinquent acts, the juvenile court is without jurisdiction to hear such cases. 42 Pa.C.S. § 6303. The present controversy requires us to decide whether the finding of “guilt[] in a criminal proceeding” must occur prior to the commission of a second criminal act by a child in order to exclude the second criminal act from within the purview of the term “delinquent act.”

In 1986, as part of House Bill 1498, our legislature amended the definition of a delinquent act. See 42 Pa.C.S. § 6302. This amendment did not increase the jurisdiction of the juvenile court, but instead, created a third exception to those acts deemed to be delinquent. Specifically, “[a] crime committed by a child who has been found guilty in a criminal proceeding for other than a summary offense” is not a delinquent act. 42 Pa.C.S. § 6302. Section 6302 has the effect of excluding certain recidivist offenders from the juvenile justice system. This exclusion is consistent with the general objective sought by the 1986 amendments to the Juvenile Act:

We have experienced over the last decade such a significant increase in criminal activity on the part of children at lower and lower ages with increasing intensity that it justifies treating them as criminals on the criminal side of the court____
I think it is about time that we recognize the need in society for treating those who are children conducting criminal activity with criminal minds repeatedly as a recidivist act in the criminal side....

PA House Journal at 2258 (November 25, 1986) (debate on House Bill 1498). Clearly, the legislature intended that certain juvenile criminals be subject to the adult court system.

A stated purpose of the Juvenile Act is to substitute care, supervision, and rehabilitation for imprisonment of juvenile offenders. 42 Pa.C.S. § 6301(b)(2). However, this strong bent toward rehabilitation must be balanced with the protection of the public interest. Id. Accordingly, I believe that this notion of rehabilitation, and in particular, one’s amenability to rehabilitation and treatment within the juvenile system, is a consideration that must pervade our interpretation of what constitutes a delinquent act. The above quoted legislative statement, when combined with this requirement of amenability to treatment, necessitates that the juvenile justice system be divested of jurisdiction to hear a case involving a repeat juvenile offender who cannot be rehabilitated in the juvenile system. Section 6302, by excluding certain crimes from within the definition of “delinquent act,” deprives the juvenile court of jurisdiction and requires the juvenile court to automatically certify the juvenile for trial in the adult system.

Under section 6302, after a child has been found guilty in one criminal proceeding, subsequent crimes are outside the scope of the term “delinquent act.” See 42 Pa.C.S. § 6302. The finding of guilt in a criminal proceeding is the sole factor which determines whether a second offense constitutes a delinquent act. Thus, the legislature must consider that finding of guilt tantamount to a determination that a juvenile can no longer benefit from the care, supervision, and rehabilitation offered by the juvenile justice system. The finding of guilt itself signals an inability to be rehabilitated within the juvenile system and should be equated with a determination that the child is not amenable to treatment. Therefore, in my opinion, it is irrelevant whether the finding of guilt is made prior to the commission of the second offense or after. Because the focus is on the finding of guilt, not the timing of that finding, it is imperative that the child’s status be evaluated at the time of the delinquency hearing. Cf. Commonwealth ex rel. Kelly v. Aytch, 254 Pa.Super. 28, 34 n. 1, 385 A.2d 508, 510 n. 1 (1978) (whether a defendant is a child as defined by the Juvenile Act affects the jurisdiction of the juvenile court to decide the case “and so must turn on [the defendant’s] present status ... ”). Hence, if at the time the child appears before the juvenile court following the commission of a second crime, the child has been found guilty in a prior criminal proceeding, the juvenile court must find that the second crime does not constitute a delinquent act, regardless of when the finding of guilt was made.

Section 6355, which dictates the procedures utilized when transferring cases from the juvenile court to a criminal proceeding, supports my assertion that the child’s status must be evaluated as of the time he appears before the juvenile court. 42 Pa.C.S. § 6355. Before transferring the case, the juvenile court must find, inter alia, “[t]hat the child is not amenable to treatment, supervision or rehabilitation as a juvenile through available facilities, even though there may not have been a prior adjudication of delinquency.” 42 Pa.C.S. § 6355(a)(4)(iii)(A). Although section 6355 is not explicit, the determination of amenability to treatment, logically, must be made when the child appears before the court, not at the time the child committed the offense. The child’s status at the time of commission of the offense is irrelevant when deciding whether the offender is presently amenable to treatment within the juvenile system. The importance of evaluating a child’s status as of the time he appears before the court is evident in cases where there is a significant lapse of time between the commission of the first offense and the finding of guilt in a criminal proceeding. This lapse of time will occur when, for example, the Commonwealth’s prosecution is delayed because the child evades capture or fails to report pursuant to a bail arrangement.

The majority would have the juvenile court assess the child’s status as of the time he commits the second offense. When interpreting section 6302, we must construe it so as to best effectuate the legislative intent. Commonwealth v. Stewart, 375 Pa.Super. 585, 592, 544 A.2d 1384, 1388 (1988). “Moreover, we are permitted to examine the practical consequences of a particular interpretation.” Id. A practical consequence of the majority’s interpretation will be disparate treatment of similarly situated juvenile offenders, and therefore, should be rejected. 1 Pa.C.S. § 1922(1) (“[t]he General Assembly does not intend a result that is ... unreasonable”). Regardless of whether the finding of guilt in a criminal proceeding is made before or after the commission of the second crime, the child is no longer amenable to treatment within the juvenile system. The legislatively prescribed event that signifies that a child is not amenable exists: a finding of guilt in a criminal proceeding. A juvenile should not be able to escape prosecution as an adult simply because he was able to thwart the Commonwealth’s attempts to prosecute him by remaining at large. Accordingly, to prevent the juvenile court from treating similar juveniles differently, the juvenile court, when determining whether a delinquent act occurred, need only decide whether, at the time of the delinquency hearing, the “child ... has been found guilty in a criminal proceeding____” 42 Pa.C.S. § 6302.

Another practical consequence of the majority’s interpretation will be to allow a juvenile offender who is no longer amenable to treatment within the juvenile system to escape an adult punishment because of the fortuitous circumstance that he committed his second offense prior to being found guilty in a criminal proceeding. Again, I believe that once a juvenile has been found guilty in a criminal proceeding, he is no longer amenable to treatment within the juvenile system, regardless of when that finding is made. Cf Commonwealth v. Romeri, 504 Pa. 124, 138, 470 A.2d 498, 505 (1983) (“it is unrealistic to believe that a youthful offender who the court determines cannot profit from the care, guidance and control aspects of a juvenile proceeding on the murder charge ... would be amenable to such care, guidance and control on the non-murder charges arising from the same criminal transaction”); Commonwealth v. Cessna, 371 Pa.Super. 89, 100, 537 A.2d 834, 839 (1988) (“if rehabilitation cannot be assured during the child’s minority, while subject to the juvenile court jurisdiction, the child has failed to establish he is amenable to juvenile rehabilitation”). The timing of the finding of guilt is irrelevant to determining amenability to treatment, and therefore, should not be the factor dictating which system has jurisdiction.

Additional support for the proposition that the majority’s interpretation of section 6302 is contrary to our legislature’s intent is found in the history of House Bill 1498. The content of House Bill 1498 was originally included in Senate Bill 838. See PA House Journal at 2253 (November 25, 1986). Senate Bill 838, as finally passed by the Senate, excluded from the term delinquent act,

a crime committed by a child subsequent-to-a conviction of-that child—for a felony WHO HAS BEEN FOUND GUILTY in a criminal proceeding.

Senate Bill 838 at 3. Senate Bill 838, when originally proposed, contained language that supports the majority’s interpretation of section 6302. However, the bill passed only after that language had been excised. The Senate specifically considered the majority’s interpretation and rejected it. Judge Brosky, in his concurrence, states his belief that the stricken and added language only addresses the type of crimes that are involved. However, that language also affects the temporal relation of the crime and the finding of guilt. “[A] crime committed ... subsequent to a conviction” is definitely one which occurs after the conviction, whereas “a crime committed by a child who has been found guilty in a criminal proceeding” does not clearly specify when the crime must be committed. In the absence of any subsequent legislative statement to the contrary, I find this history persuasive and interpret section 6302 accordingly.

Like Judge Brosky, I too am concerned that the Commonwealth may abuse the system by unnecessarily delaying the prosecution of the second crime until a finding of guilt as to the first crime can be procured. That potential abuse, however, is an unfortunate by-product of this statute. We have no authority to rewrite the statute and, in effect, legislate. We must rely on the integrity of our District Attorneys to insure that no such abuse occurs. The legislature is aware of the potential abuses and should take whatever action it deems appropriate. For now, however, we must interpret the statute as it is presently written.

In my opinion the trial court correctly decided that it did not have jurisdiction to entertain the action against Harvin. On remand, the juvenile court should determine if Harvin has, as of the time he appears before the court, a prior finding of guilt in a criminal proceeding. If so, the juvenile court must transfer the case back to the adult trial division of the Philadelphia County Court of Common Pleas.

BROSKY, Judge,

concurring:

Although I concur in the result reached by the majority, I write separately to address the following matter. Both the majority and the trial court focus upon the Juvenile Act,, 42 Pa.C.S.A. § 6302, which defines the term “delinquent act”. This case, however, arises under 42 Pa.C.S.A. § 6322 of the Juvenile Act, which governs the transfer of actions from criminal proceedings to the Juvenile Court. § 6322(a) provides:

Except as provided in 75 Pa.C.S. § 6303 (relating to rights and liabilities of minors) or in the event the child is charged with murder or has been found guilty in a criminal proceeding, if it appears to the court in a criminal proceeding that the defendant is a child, this chapter shall immediately become applicable, and the court shall forthwith halt further criminal proceedings and where appropriate, transfer the case to the division or a judge of the court assigned to conduct juvenile hearings, together with a copy of the accusatory pleading and other papers, documents, and transcripts of testimony relating to the case. If it appears to the court in a criminal proceeding charging murder, that the defendant is a child, the case may similarly be transferred and the provisions of this chapter applied. In determining whether to transfer a case charging murder, the court shall apply the criteria in section 6355(a)(4)(iii)(A) (relating to transfer to criminal proceedings). However the child shall be required to show the court that the child is amenable to treatment, supervisions or rehabilitation as a juvenile by meeting the criteria listed in section 6355(a)(4)(iii)(A)____

Under § 6322, it is clear that cases in which the child has been charged with murder or in which the child has been found guilty in a prior criminal proceeding, are excluded from transfer to the Juvenile Court. Further, where the child is charged with murder, he or she has the burden of establishing that transfer to the Juvenile Court is appropriate. In interpreting this provision, the Commonwealth contends that the statute requires that the trial court focus “on the juvenile’s status at the time of the criminal proceeding, [and] not his status at the time the offense is committed.” See Appellant’s Brief at p. 12. For support, the Commonwealth includes an earlier version of the amendment in which certain language was deleted from the final copy. The Commonwealth argues that the fact that some language has been deleted from the proposed amendment lends credence to its interpretation. However, the interpretation posed by the Commonwealth is erroneous.

First, nothing can be inferred from the legislature’s deletion of certain language. The deleted language refers only to convictions for felonies. Therefore, in deleting the proposed language, the legislature may have intended this provision to apply to crimes which are classified as misdemeanors, in addition to those which are classified as felonies. Moreover, the interpretation suggested by the Commonwealth is inconsistent with the language contained in the Official Comment to § 6322.

The Official Comment provides:

Subsection (a): This section, derived from Section 9 of the Uniform Act, authorizes transfers where the defendant is a “child,” see Section 2 [42 Pa.C.S. § 6302]; transfers are mandatory where the child was under the age of 18, and permissive where the child was under 21 but over 18 at the time of the alleged delinquent act. The latter authority [that is, where the child is between the ages of 18 and 21 at the time that the act was committed,] should be exercised by the court only in those cases where to continue the criminal prosecution would be manifestly unjust; the former authority [that is, where the child is under the age of 18 at the time that the act was committed,] requiring the exclusive application of this act, is subject to retransfer proceedings initiated by the district attorney pursuant to Section 28 [42 Pa.C.S. § 6355]. Of course this section does not apply to a criminal prosecution initiated by the transfer proceedings under Section 28 [42 Pa.C.S. § 6355]. [Emphasis added.]

As the official comment makes clear, transfers under § 6322 are mandatory where the child is under the age of 18. More importantly, the comment provides that the court is to look at the time of the commission of the alleged delinquent act as the event which triggers the application of the Juvenile Act. See also the Official Comment to § 6302, which provides that part of the definition of the term “child” was intended to overcome the tendency to delay bringing children into court when the act committed was near age 18 in order to require criminal prosecution after reaching that age.

As applied to this case, it is undisputed that Eric Harvin was seventeen at the time he had committed the robbery on March 5, 1987. At this point in time, Harvin had not been adjudicated guilty in an adult criminal proceeding. Further the record reveals that the Commonwealth waited until Harvin had plead guilty in the adult proceeding before terminating the juvenile petition and instituting proceedings in the adult criminal court. This type of conduct is exactly the kind of behavior which the Juvenile Act was designed to prevent, and which was disapproved of in the Official Comment to § 6302, supra.

Although the Commonwealth persuasively argues that Harvin is not amenable to rehabilitation in the juvenile system, an argument with which I am in whole-hearted agreement, this is unfortunately not a factor which is to be considered in determining whether a criminal case involving a juvenile should be transferred. The Official Comment to § 6322 clearly outlines the proper procedure to be followed in cases of this type. Where the defendant falls within the definition of child, and neither of the exceptions involving a charge of murder or a prior adjudication of guilt are applicable, the case is to be transferred to the Juvenile Court, and upon such transfer, the Commonwealth is free to initiate re-transfer proceedings pursuant to 42 Pa.C.S.A. § 6355. Contrary to what the Commonwealth believes, this will not lead to absurd results, as it is highly unlikely that the Juvenile Court will refuse to re-certify the child to the criminal court, especially where the child has demonstrated, by committing the felony of robbery, that he is not amenable to juvenile treatment or rehabilitation. For these reasons, I believe the order of the trial court must be affirmed.

      . See: Commonwealth v. Pyle, 462 Pa. 613, 342 A.2d 101 (1975).

      . See: In the Interest of Leonardo, 291 Pa.Super. 644, 436 A.2d 685 (1981).

      . 1 Pa.C.S. § 1928(b)(7) provides that provisions of a statute “decreasing the jurisdiction of a court of record” shall be strictly construed.

      . This section provides in pertinent part:
      § 6355. Transfer to criminal proceedings
      (a) General rule.—After a petition has been filed alleging delinquency based on conduct which is designated a crime or public offense under the laws, including local ordinances, of this Commonwealth, the court before hearing the petition on its merits may rule that this chapter is not applicable and that the offense should be prosecuted, and transfer the offense, where appropriate, to the division or a judge of the court assigned to conduct criminal proceedings, for prosecution of the offense if all of the following exist:
      (1) The child was 14 or more years of age at the time of .the alleged conduct.
      (2) A hearing on whether the transfer should be made is held in conformity with this chapter.
      (3) Notice in writing of the time, place, and purpose of the hearing is given to the child and his parents, guardian, or other custodian at least three days before the hearing.
      (4) The court finds:
      (i) that there is a prima facie case that the child committed the delinquent act alleged;
      (ii) that the delinquent act would be considered a felony if committed by an adult; and
      (iii) that there are reasonable grounds to believe all of the following:
      (A) That the child is not amenable to treatment, supervision or rehabilitation as a juvenile through available facilities, even though there may not have been a prior adjudication of delinquency. In determining this the court shall consider the following factors:
      Age.
      Mental capacity.
      Maturity.
      The degree of criminal sophistication exhibited by the child.
      Previous records, if any.

        The nature and extent of any prior delinquent history, including the success or failure of any previous attempts by the Juvenile Court to rehabilitate the child.
      Whether the child can be rehabilitated prior to the expiration of the Juvenile Court jurisdiction.
      Probation or institutional reports, if any.
      The nature and circumstances of the acts for which the transfer is sought.
      Any other relevant factors.
      (B) That the child is not committable to an institution for the mentally retarded or mentally ill.
      (C) That the interests of the community require that the child be placed under legal restraint or discipline or that the offense is one which would carry a sentence of more than three years if committed as an adult.
      42 Pa.C.S. § 6355(a).

      . Underlining, ... and Strikeouts are utilized ... to indicate changes in prior statutory text.
      Language that is added by amendment to existing sections and new sections that are added to existing acts are indicated by underlining____ Strikeout material (including strikeout material that has also been underlined ...) represents earlier revisions of the legislation that have been deleted during the legislative process and prior to final enactment.
      Purdon’s Pennsylvania Legislative Service at III.

      . Delinquent act is defined as “an act designated a crime under the law of this Commonwealth, or of another state if the act occurred in that state, or under Federal law or under local ordinances." 42 Pa.C.S.A. § 6302(1). However, the definition of delinquent act does not include:
      (i) The crime of murder.
      (ii) Summary offenses, unless the child fails comply with a lawful sentence imposed thereunder, in which event notice of such fact shall be certified to the court.
      (iii) A crime committed by a child who has been found guilty in a criminal proceeding for other than a summary offense.
      42 Pa.C.S.A. § 6302(2)(i)—(iii).

      . The amended language to which the Commonwealth refers is found in the definition of delinquent act, clause (2)(iii). The proposed version of clause (2)(iii) read as follows:
      (iii) A crime committed by a child subsequent to a conviction of that child for a felony who has been found guilty in a criminal proceeding.

        See Senate Bill No. 838, Session of 1985, Printer’s No. 2243, as amended June 18, 1986 (emphasis added to language which has been deleted from the final version). The final version of this statute is found in footnote 1, supra.

      . The Official Comments to the Juvenile Act may be used in interpreting the statute. See 1 Pa.C.S.A. § 1939.

      . As noted above, amenability to rehabilitation or other juvenile treatment only becomes relevant in the event that the child is charged with murder, or where the child has been found guilty in an adult criminal proceeding before he committed the subsequent alleged delinquent act.