author: CIRILLO, Judge: TAMILIA, Judge,

text:
    596 A.2d 877
    Marjorie BENJAMIN v. Harry BENJAMIN, Appellant.
    Superior Court of Pennsylvania.
    Argued June 13, 1991.
    Filed Sept. 20, 1991.
    Ray Depaola, Towanda, for appellant.
    Mark W. Smith, Towanda, for appellee.
    Before CIRILLO, TAMILIA and HESTER, JJ.
   CIRILLO, Judge:

This is an appeal from an order entered in the Court of Common Pleas of Bradford County. We vacate and remand.

Appellant, Harry Benjamin (father), and appellee, Marjorie Benjamin (mother), are the parents of five children. The parties divorced, and on September 10, 1971, father was ordered to pay child support for the parties’ five children in the amount of $60.00 per week. The order was unallocated.

On October 2, 1986, the support order was modified to $40.00 per week for the youngest child, Lisa Benjamin, retroactive to April 3, 1986. After Lisa’s nineteenth birthday, father filed a petition to terminate support. Between the date the original support order was entered in 1971 and the date support was terminated, in June of 1988, father never filed a petition to modify the support order; as each child reached the age of eighteen, father reduced the payments unilaterally, apparently upon advice of counsel.

On November 14 1988, father filed a petition to terminate support. The DRO at that time showed over $9,000.00 due on arrears. The parties were unable to reach an agreement, and the DRO recommended a hearing. Prior to the hearing, on January 20, 1989, father filed a petition to remit arrears. Following a hearing, the master determined that as of May 5, 1989 the amount in arrears totalled $10,055.00. The master also found that the father was notified on two occasions by the Bradford County Domestic Relations Office (“DRO”) that he was required to file a petition to modify the support order in order to reduce his support payment. In addition, the master found that the father could not read, but had his mail read to him. Despite the father’s denial of ever having seen the letters from the DRO, the master concluded that there were no compelling reasons to grant father’s petition to remit arrears.

Father filed exceptions, arguing that the master erred in failing to consider the fact that neither the mother nor the DRO instituted proceedings against him during the seventeen years he was paying support, and therefore the mother’s entitlement to arrears is barred by laches. The trial court entered an order on July 11, 1990 denying father’s exceptions. This appeal followed. Father raises one issue for our review:

Is the appellee and/or the Bradford County Domestic Relations Office guilty of laches for failing to attempt to collect the arrearage until after appellant filed a petition to have his support obligation terminated on or about November 4, 1988, thereby entitling the appellant to a remission of all arrearages in this matter?

Although appellant’s brief makes no mention of the 1988 amendments to 23 Pa.C.S. § 4352, effective March 25, 1988, appellee argues that section 4352(e) of Title 23 is dispositive of this case. We agree that section 4352(e) is applicable. In Jackman v. Pelusi, 379 Pa.Super. 361, 550 A.2d 199 (1988), this court addressed the issue before us today and noted parenthetically that future cases would follow a different approach due to the change in the law as a result of the 1988 amendments. Id., 379 Pa.Superior Ct. at 374-75, 550 A.2d at 206. The court stated that section 4352(e) of Title 23 “has removed this matter from the discretionary powers of the court by prohibiting retroactive modification of arrearages unless there is a pending petition for modification of support.” Jackman, 379 Pa.Super. at 375, 550 A.2d at 206 (citing 23 Pa.C.S. § 4352(e) (emphasis added)). Cf. Mosier v. McCaughtry, 387 Pa.Super. 405, 409 n. 1, 564 A.2d 241, 243 n. 1 (1989) (noting exceptions to the rule that a court has no jurisdiction to modify arrearages accumulated prior to the filing of a petition to modify). Section 4352(e) provides:

(e) Retroactive Modification of Arrears. — No court shall modify or remit any support obligation, on or after the date it is due, except with respect to any period during which there is pending a petition for modification____ However, modification may be applied to an earlier period if the petitioner was precluded from filing a petition for modification by reason of a significant physical or mental disability, misrepresentation of another party or other compelling reason and if the petitioner, when no longer precluded, promptly filed a petition. In the case of an emancipated child, arrears shall not accrue from and after the date of the emancipation of the child for whose support the payment is made.

23 Pa.C.S. § 4352(e) (emphasis added). Thus, the trial court has no jurisdiction to entertain a request for reduction in arrearages for a period during which there is no pending petition for modification, unless of course the circumstances fall within the enumerated exceptions to the statutory requirement, i.e., physical or mental disability, misrepresentation, or “other compelling reason.” 23 Pa.C.S. § 4352(e). Therefore, we must determine whether the circumstances of this case warrant a pardon of the accumulated arrearages despite father’s failure to file a petition for modification.

In the instant case, we are satisfied that compelling reasons exist to allow retroactive modification of arrearages accumulated prior to the filing of a petition for modification. Here, mother failed to pursue enforcement proceedings for seventeen years. During those seventeen years the father diligently paid support for those children who were unemancipated and/or not living with him. Moreover, we find no basis in the record for the master’s conclusion that the father, who cannot read, saw the notices from the DRO or had the notices read to him. Additionally, we have considered the father’s testimony and the master’s finding that the unilateral reduction of the support order was made upon the advice of counsel, and that each time the payment was reduced, DRO was notified of the reason, i.e., a child moved in with the father, or a child reached the age of emancipation. Cf. Nucci v. Nucci, 355 Pa.Super. 549, 513 A.2d 1059 (1986) (ex-husband was not entitled to assert defense of laches against wife’s claim for alimony arrearages where husband was aware of his duty to file request for modification of award, but failed to do so).

We recognize that the father’s unilateral decision to modify a court order is not rendered benign solely because the mother failed to pursue enforcement proceedings for seventeen years. Cf Jackman v. Pelusi, 379 Pa.Super. 361, 367-69, 550 A.2d 199, 202 (1988). However, this is not a case in which an obligor has been derelict on an obligation and thereafter relies solely upon the opposing party’s failure to initiate enforcement proceedings to cancel the debt. After an examination of the circumstances in this case, including the father’s inability to read, his attorney’s erroneous advice, and the fact that the father reduced his payment only after each child reached the age of emancipation, see 23 Pa.C.S. § 4352(e), we conclude that compelling reasons exist to allow modification or remission of arrears. We conclude therefore that the trial court abused its discretion in denying the father’s motion. Mosier, supra.

The order of July 11, 1990 is vacated, and we remand to the trial court with instructions to consider the father’s support obligation in conjunction with each child’s living arrangements and year of emancipation, and to adjust or offset the master’s arrearage determination accordingly. We emphasize that the statute mandates that “[i]n the case of an emancipated child, arrears shall not accrue from and after the date of the emancipation of the child for whose support the payment is made.” 23 Pa.C.S. § 4352(e) (emphasis added).

Vacated and remanded. Jurisdiction relinquished.

Concurring Opinion by TAMILIA, J.

TAMILIA, Judge,

concurring:

I concur in the result and would remand for a review of the payment history of this case and the effect emancipation would have had as to each child at the time the child became emancipated. I would not place much emphasis on the laches theory propounded by the majority because self-help in domestic relations does not create an estoppel nor should it defeat the right of the spouse to support of children. I would allow more freedom in the case of support of spouse alone. My reason for recommending caution in remitting arrears in this case is that pursuant to 23 Pa.C.S. § 4352(d), Arrears as judgments, it is provided:

On or after the date it is due, each and every support obligation shall constitute a judgment against the obligor by operation of law, with the full force, effect and attributes of a judgment of court, including the ability to be enforced, and shall be entitled as a judgment to full faith and credit in this or any other state.

Id. This section, coupled with section 4352(e), Retroactive Modification of arrears, discussed by the majority establishes unequivocally that laches and estoppel are unavailable and only emancipation shall be a defense to arrears — in effect, limiting the accrual of arrears by operation of law from the date of emancipation. The majority has recognized this and it is the sole basis for reconsideration. This, however, does not entirely resolve the issue. In this case, there was an unallocated Order of support in the amount of $60 per week for five children entered in 1971. As circumstances changed with each of the children, the father unilaterally reduced the Order. It goes without question the original $60 per week Order for five children was inadequate to meet their needs. It is, therefore, likely a court review on a petition for reduction would have resulted in no change initially. As the years passed by, with the effect of inflation and likely gradual increase in income, further changes in the number of children covered by the original Order would unlikely have resulted in a reduction and, if requested, could well have resulted in an increase.

Because of these reasons, upon remand I would leave it to the discretion of the trial judge, after review of the income of appellant and needs of the children remaining under the support Order, after each succeeding emancipation, to determine if retroactive reduction is justifiable and, if so, to what extent it is reasonable.

      . The amendment, effective March 25, 1988, is applicable to the instant case. Section 4 of Act 1988, March 25, P.L. 296, No. 35, provides that "the amendments affecting this section shall apply to all support orders under which an arrearage exists on or is accrued after the effective date of this act."


source: Caselaw Access Project

author: POPOVICH, Judge.

license: Public Domain

text:
    596 A.2d 880
    The REALTY GROUP ASSOCIATES, INC., a Pennsylvania Corporation, Appellant, v. Barbara A. DIVOSEVIC and Joseph Dennis Divosevic, Appellees.
    Superior Court of Pennsylvania.
    Argued May 23, 1991.
    Filed Sept. 20, 1991.

      Kathryn L. Simpson, Pittsburgh, for appellant.
    Robert N. Peirce, Jr., Pittsburgh, for appellees.
    Before TAMILIA, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge.

This appeal comes before us following dismissal of plaintiff-appellant’s complaint for failure to state a cause of action upon which relief can be granted. We are asked to review whether the trial judge erred in granting defendant’s preliminary objection to the complaint in the nature of demurrer. We affirm.

On or about April 10, 1989, appellant, The Realty Group Associates, Inc., (“Realty”), negotiated an “exclusive” listing contract with appellees Barbara (“wife”) and Joseph (“husband”) Divosevic for the purpose selling their home. Realty alleges in its Complaint two counts sounding in breach of contract. Specifically, Realty’s action is one for breach of the contract provisions entitling it to a commission. The fee arrangement appearing in bold-faced block type in the “Standard Exclusive Listing Contract” reads as follows:

COMMISSION — THE RATE OF COMMISSION OR FEE FOR THE SALE, LEASE OR MANAGEMENT OF REAL ESTATE IS NEGOTIABLE. THE COMMISSION OR FEE FOR PROFESSIONAL SERVICES UNDER THIS CONTRACT HAS BEEN NEGOTIATED AS FOLLOWS:
IN THE EVENT OF SALE, TRANSFER OR EXCHANGE OF THE PROPERTY LISTED HEREIN BY WHOMSOEVER MADE OR EFFECTED, INCLUDING THE OWNER, OR IF BROKER PROCURES A PURCHASER READY, WILLING AND ABLE TO BUY THE PROPERTY AT THE LISTED PRICE [$349,900] WITHIN THE PERIOD OF TIME THIS CONTRACT IS IN FORCE, THE OWNER AGREES TO PAY THE BROKER A COMMISSION OF SEVEN (7%) OF THE SELLING PRICE.

Plaintiff’s exhibit 1 (emphasis added).

The lower court Opinion accurately recites the factual history of the instant case subsequent to the negotiated agreement for listing (which was to run for one year from April 10, 1989, with a right of termination after 180 days); the relevant facts are as follows:

On or about May 9, 1989, a prospective purchaser named Ronald Dubyak made an offer to purchase the property.
This agreement of sale was communicated to defendant Joseph Divosevic on May 10, 1989 and accepted by him on May 11, 1989.
The agreement was likewise sent to defendant Barbara Divosevic’s attorney, Robert Pierce, on May 10, 1989.
On or about May 23, 1989, Mr. Pierce submitted a counter-offer on behalf of Barbara Divosevic.
On June 2, 1989, the agreement of sale was executed by Barbara Divosevic by amending the agreement of sale to reflect the new price and terms.
In July, 1989, the plaintiffs broker, Joseph Ritchie, communicated to the defendant’s that the buyer was having temporary cash flow problems and wanted to amend the financing terms.
Noting that time was of the essence, Joseph Divosevic’s counsel scheduled a closing date of August 31, 1989 with buyer.
In mid-August, the buyer made a new offer.
On August 28, 1989, Barbara Divosevic’s counsel made a counter-offer. The new terms were accepted by the buyer and incorporated into an agreement of sale which was signed by buyer and Joseph Divosevic and a $20,000 hand money check was given to Joseph Ritchie as per terms of the agreement.
The new closing date was to be October 13, 1989.
The agreement was sent to Barbara Divosevic’s counsel, whereupon this defendant refused to sign the agreement.
On or about September 27, 1989, Joseph Divosevic conveyed by recorded deed his interest in the property to Barbara Divosevic. On October 19, 1989 plaintiff was made aware that Barbara Divosevic was the sole owner of the property and the exclusive listing contract was terminated.

Trial Court Op. at 1-3.

The Complaint at Count I alleges breach of contract between Realty and appellees on grounds that Realty provided a ready, willing and able buyer to purchase the property, and that appellees were in breach of their obligation to pay Realty its commission even though no “sale, transfer or exchange” materialized with respect to this offeror. Count II alleges breach of contract on grounds that husband’s conveyance to wife qualified as a “sale, transfer or exchange” consistent with the terms as found in the above-excerpted provisions of the agreement thereby, alternatively, obligating appellees for the commission fee.

We begin by noting our standard of review from an order, reduced to judgment, dismissing a party’s complaint for failure to state a claim upon which relief can be granted. All properly pleaded facts and inferences reasonably deducible from the complaint are admitted; a preliminary objection in the nature of demurrer should be sustained, and a complaint dismissed, “only in cases which are clear and free from doubt.” Allstate Ins. Co. v. Fioravanti, 451 Pa. 108, 299 A.2d 585, 587 (1973); see also Zubris v. Pennsylvania Assigned Claims Plan, 321 Pa.Super. 83, 467 A.2d 1139, 1143 (1983); see generally 16 Std.Pa.Pract. § 91:61 (1983). An appellate court’s review of this, an issue of law (the facts are admitted), is plenary, for “it must appear with certainty that, upon the facts as averred, the law will not permit recovery by the plaintiff.” Allstate, 451 Pa. at 111, 299 A.2d at 587 (citation omitted).

We need not remain long with appellant’s assignment of error at Count I, as the policy language clearly and unambiguously limits appellees’ obligation for commission payment only: “in the event of a sale, transfer or exchange of the property” or in those situations where the “broker procures a purchaser ready, willing and able to buy the property at the listed price within the period of time this contract is in force____” (emphasis added). Solis-Cohen v. Phoenix Mut. Life Ins. Co., 413 Pa. 633, 198 A.2d 554, 555 (1964) (broker’s entitlement to a commission is determined in accordance with principles of contract law); see also Century 21 Heritage Realty, Inc. v. Bair, 386 Pa.Super. 373, 563 A.2d 114, 116 (1989) (vendor ordinarily becomes liable for a commission where broker supplies a ready, willing and able purchaser); see generally 6 P.L.E., Brokers §§ 78-80 (1958). Neither an agreement for sale of the house, nor a completed sale, transfer or exchange was executed by the parties; nor was the offered price for an amount equal to or greater than the listed price. Thus, with respect to the transaction involving Mr. Ronald Dub-yak, neither conditions precedent necessary to obligate appellees to the payment of a commission were satisfied. Appellant has pleaded insufficient facts to sustain a cause of action on this count.

At Count II, we must ask whether the conveyance from husband to wife pursuant to a Divorce Decree and Merged Property Settlement should be considered a “sale, transfer or exchange” as the terms exists in the listing agreement. In a one-paragraph argument, appellant asserts that “while the order of the Family Division may serve as a defense to the payment of a commission, it does not permit the court to grant a demurrer.” Appellant’s Brief at 14-15. Appellees counter by merely adopting the trial court’s reasoning:

Clearly the placing of the property in the wife’s name was done without the intention of defrauding the plaintiff of a commission. The transaction was made in accordance with a Family Court Order as part of a property settlement. If a commission was to be had, there is no indication that it would not come from the wife. Plaintiff has failed to allege any facts which would support a claim of fraud against the defendants.

Trial Court Op. at 6.

First, it is helpful to recall that at the time of husband’s transfer to wife on September 19, 1989, there remained three weeks left in the contract before which appellees could rightfully terminate. There is, however, no evidence that appellees terminated before October 10, 1989. Thus, wife’s termination by letter dated October 10, 1989, appears well within her rights under the agreement since the listing contract was 180 days old when she exercised this right.

We agree with the trial court’s legal conclusion that appellant pleaded insufficient facts of fraudulent transfer to withstand a demurrer. We feel, however, that on a more fundamental level, the terms as included in the contract prevent appellant’s recovery irrespective of the absence of proof of fraud.

A plain interpretation of the terms of the listing contract fails to suggest the legal conclusion appellant assumes, specifically, that a conveyance between appellees triggers the “sale, transfer or exchange” provisions of the agreement. Read as a whole, we find the agreement unambiguous and subject only to one reasonable interpretation, one which contemplates a “sale, transfer or exchange” to a third party, not between co-owners who are parties to the contract. See Guardian Life Ins. Co. v. Zerance, 505 Pa. 345, 479 A.2d 949, 953 (1984) (where contractual language is unambiguous, and thus subject only to one reasonable interpretation, interpretation is a question of law for the court demanding application of the written word consistent with its plain or customary meaning); see also United States Fidelity & Guar. v. Griggs, 341 Pa.Super. 286, 491 A.2d 267, 269-70 (1985). Significantly, and as the trial judge suggests, it would appear that wife remained obligated under the agreement for the three-week period subsequent to husband’s transfer to wife. Thus, we fail to see how appellant’s reasonable expectations under the contract have been compromised by the intra-party conveyance. Appellant has pleaded insufficient facts from which a cause of action on this count in breach of contract can be sustained.

Judgment affirmed.


author: CERCONE, Judge:

text:
    596 A.2d 883
    Glenn FERGUSON and Mary Ann Ferguson v. LAKELAND MUTUAL INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued May 16, 1991.
    Filed Sept. 20, 1991.

      David H. Acker, New Castle, for appellant.
    Harvey R. Robinson, Freedom, for appellee.
    Before CAVANAUGH, DEL SOLE and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from a judgment entered against appellant Lakeland Mutual Insurance Company. We affirm.

In this case, appellees Glenn and Mary Ann Ferguson sought to collect from a homeowner’s insurance policy from appellant, the insurer, when lightning struck a Lowry C-500 organ inside their mobile home. Appellant, however, disputed the claim and the parties proceeded to court. Subsequently, a jury returned a verdict in favor of appellees and against appellant in the sum of twenty-three thousand three hundred seventeen dollars and forty cents ($23,317.40). After their post-trial motions were denied, appellant filed this appeal.

Central to this controversy is the lower court’s interpretation of the parties’ insurance policy. In this case, the lower court instructed the jury to disregard a provision in the policy which required appellees to either repair or purchase a replacement for the organ prior to receiving the replacement value of the item. In particular, the court found the provision oppressive and unfair since it required appellees to expend a large sum of money prior to a liability determination. Appellant, however, objected to this instruction, arguing that the policy provision was binding and that appellees were only eligible to collect the actual cash value of the organ as provided by the policy. This objection was denied by the lower court.

In a single intertwined argument, appellant now proffers the following three issues:

1. Is a clause in a property insurance policy void as against public policy or void as unconscionable when the clause limits the insurer’s liability to actual cash value of the property unless replacement has been made?
2. Can a court modify a limitation on recovery contained in an insurance contract when the limitation is clear and unambiguous?
3. When an insurance contract contains clear and unambiguous language limiting recovery for property loss to actual cash value unless replacement has been made, can an insured recover full replacement costs when she has neither replaced the property, pleaded that she intends to replace the property, nor testified that she intends to replace the property?

We reject these contentions for the reasons outlined below.

Citing our supreme court’s seminal decision of Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 469 A.2d 563 (1983), appellant argues that the lower court erred in failing to follow “clear and unambiguous” language of the insurance policy. Moreover, appellant claims that the policy limitation is neither void as against public policy nor unconscionable. We disagree.

Reviewing the record, we find that the policy provided as follows:

We agree to extend Coverage C to cover the replacement value of covered personal property.
1. Definition — Replacement value means the cost to repair or replace the property with new property of equivalent kind and quality to the extent practicable, without deduction for depreciation.
3. Our Limit of Liability — We pay the lesser of the following amounts for each covered item:
c. the replacement value of the property as defined in this endorsement.
4. When the replacement value is more than twice the actual cash value of the damaged property, we are not liable for more than the actual cash value of the loss until actual repair or replacement is completed.
5. You may make a claim for the actual cash value amount of the loss before repairs are made or replacement is completed. A claim for an additional amount payable under this provision must be made within 180 days after the loss.

In this case, the parties stipulated to estimate the actual cash value of the organ at five thousand seven hundred dollars ($5,700). Appellees, however, sought a judgment in excess of twenty thousand dollars ($20,000). Since this amount exceeded twice the actual cash value of the organ, appellant argued that the jury could only award appellees the actual cash value of the organ since the insured failed to repair or replace the item prior to receiving the replacement value as required by paragraph 4 of the policy. As noted supra, the court rejected this contention, finding the requirement unconscionable. We agree.

In Standard Venetian Blind, supra, our supreme court declared that “where ... the language of the contract is clear and unambiguous, a court is required to give effect to that language." Id., 508 Pa. at 807, 469 A.2d at 566 (citations omitted). Unfortunately for appellant, however, the court also stated in that seminal case that “in light of the manifest inequality of bargaining power between an insurance company and a purchaser of insurance, a court may on occasion be justified in deviating from the plain language of a contract of insurance.” Id., 503 Pa. at 307, 469 A.3d at 567.

Citing 13 Pa.C.S. § 2302, our supreme court explained in Standard Venetian Blind that a “court may refuse to enforce a contract or any clause of contract if [the] court as a matter of law deems the contract or any clause of the contract to have been unconscionable at the time it was made.” Id., 503 Pa. at 307, 469 A.2d at 567 (quotation marks omitted). Inquiries concerning whether a contract or clause is unconscionable are properly a question of law for the court. Bishop v. Washington, 331 Pa.Super. 387, 399, 480 A.2d 1088, 1094 (1984) (citations omitted). With regard to such inquiries, we also noted in Koval v. Liberty Mutual Insurance Company, 366 Pa.Super. 415, 531 A.2d 487 (1987), as follows:

The test of unconscionability is two-fold. First, one of the parties to the contract must have lacked a meaningful choice about whether to accept the provision in question. Second, the challenged provision must unreasonably favor the other party to the contract.

Id., 366 Pa.Superior Ct. at 423-24, 531 A.2d at 491 (citations and quotation marks omitted).

With regard to the first prong of the Koval test, we have previously noted that “insurance contracts are generally contracts of adhesion ... the parties are usually not of equal bargaining power and the buyer must adhere to the terms of a form contract which are not negotiable.” Bishop, supra, 331 Pa.Superior Ct. at 400, 480 A.2d at 1094 (1984) (citations omitted). Such is the case here.

Next, we find that the second prong of the Koval test is also met: the challenged provision unreasonably favors appellant. Since appellant denied liability, appellees were faced with the unsavory choice of either accepting the lower actual cash value of the organ or expending a large sum of money in replacement costs without a guarantee of reimbursement. In fact, under the terms of the contract, appellees could have only received replacement value in this instance after expending the replacement or repair funds and obtaining a judicial determination concerning liability. Thus, applying the teachings of Standard Venetian Blind and Koval to the instant case, we find the replacement requirement unconscionable despite the clear and unambiguous language of the policy.

Judgment affirmed.

CAVANAUGH, J. dissents.


author: FORD ELLIOTT, Judge:

text:
    596 A.2d 885
    COMMONWEALTH of Pennsylvania v. Richard D. JONES, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 24, 1991.
    Decided Aug. 20, 1991.

      Shelley Stark, Public Defender, Pittsburgh, for appellant.
    Catherine A. Stowe, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

      Before OLSZEWSKI, TAMILIA and FORD ELLIOTT, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from the order entered on August 30, 1990, in the Court of Common Pleas of Allegheny County which denied appellant’s request for post-conviction relief. We affirm.

The procedural history of the instant case was summarized by the PCRA court in the following manner:

On November 12, 1988, a complaint was filed against [appellant] wherein he was accused of one count of Criminal Attempt, 18 Pa.C.S.A. § 901(a), (CC 8900329). On March 30, 1989, another complaint was filed against [appellant] wherein he was accused of fifteen counts of Violation of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-113(a)(12, 30 and 16) as well as one count of Conspiracy, 18 Pa.C.S.A. § 903(a)(1), (CC 8904745).
These two informations were consolidated for trial. On July 5, 1989, [appellant] pled guilty to all of the above-referenced charges. On November 17, 1989, [appellant] was sentenced to consecutive terms of imprisonment of not less than two years or more than five years. In addition, these sentences were set to run consecutively to the sentence imposed by the Honorable James F. Clarke. No direct appeal was taken by [appellant] from the judgment of sentence but on June 15, 1990, [appellant] filed, pro-se, a petition for collateral relief, pursuant to the Post-Conviction Relief Act. On June 26, 1990, the Public Defender of Allegheny County was appointed to represent [appellant].
On July 9, 1990, the Public Defender’s office filed an amendment to [appellant’s] collateral relief petition. [Appellant’s] petition was denied on August 30, 1990 after a hearing was held.

PCRA Opinion, 2/25/90 at 2-3. This appeal follows.

Appellant raises the following issue on appeal:

Did the [PCRA Court] err in failing to permit the filing of a motion to withdraw a guilty plea nunc pro tunc or to modify the sentence.

Appellant’s Brief at 3. More specifically, appellant contends that trial counsel neither filed post-plea and post-sentence motions nor formally withdrew as counsel, denying appellant “the right to zealous advocacy or the protection afforded by formal withdrawal procedures.” For the reasons which follow, we affirm.

On appeal, our scope of review, following the denial of PCRA relief by a trial court, is limited to determining whether the court’s findings were supported by the record and its order otherwise free of legal error. Commonwealth v. Johnson, 347 Pa.Super. 93, 500 A.2d 173, 175 (1985). The findings of the PCRA court will not be disturbed unless they have no support in the record. Id. With respect to issues of credibility, we must defer to determinations made by the PCRA court. Id. We are guided by these restraints in determining the effectiveness of counsel in this case.

With regard to allegations of ineffectiveness for counsel’s failure to challenge a defective guilty plea, this court has noted previously:

Appellant bears the burden of demonstrating ineffectiveness of counsel. He must establish that the claim has arguable merit, that trial counsel had no reasonable basis for failing to raise the issue, and that he was prejudiced thereby.
Moreover, the withdrawal of a guilty plea after sentence is imposed requires that appellant establish prejudice that results in a manifest injustice. Proving manifest injustice requires that appellant show his plea was involuntary or was entered without knowledge of the charge. This heightened burden is necessary to prevent the use of guilty pleas as a sentence-testing device.

Commonwealth v. Harris, 403 Pa.Super. 435, 437, 589 A.2d 264, 264-265 (1991) (citations omitted).

The PCRA court provided the following reasoning for its denial of appellant’s PCRA petition:

The record in this case clearly shows that [appellant’s] allegations are without merit. See, Commonwealth v. Sauter, 389 Pa.Super. 484, 567 A.2d 707 (1989). A complete and thorough guilty plea colloquy was conducted after [appellant] executed the written guilty plea which further advised [appellant] of his rights. Further, a presentence report was ordered and reviewed prior to sentencing. Finally, [appellant] was sentenced at the top end of the standard range of sentencing according to the sentencing guidelines furnished by the Commonwealth although there was ample justification to sentence [appellant] within the aggravated range of sentencing called for by the guidelines.

PCRA opinion, 2/25/90 at 4.

At the time of the PCRA hearing, the trial court determined that appellant’s plea was voluntarily, knowingly, and intelligently made. The PCRA court made the following statement with regard to appellant’s request to withdraw his plea of guilty:

I think it’s absolutely, positively, frivolous. This is his 9th or 10th conviction. He said he entered the plea knowingly, intelligently, he wasn’t under the influence of drugs or alcohol. He was satisfied with a life long friend in Mr. Elash, said he was a fine lawyer, he said he was satisfied with his representation. He doesn’t like the sentence. I gave him a light sentence compared to what he deserved under the circumstances.

Notes of Testimony, 8/30/90 at 15. This court has held that a criminal defendant who elects to plead guilty has a duty to answer questions truthfully. Commonwealth v. Cappelli, 340 Pa.Super. 9, 20-22, 489 A.2d 813, 819 (1985). Appellant cannot now challenge his plea by claiming that he lied previously while under oath. Id.

As stated earlier, appellant contends that trial counsel was ineffective for failing to withdraw the plea. Appellant, however, must persuade the hearing judge that he indeed made a timely request to withdraw his guilty plea. See Commonwealth v. Dockins, 324 Pa.Super. 305, 471 A.2d 851 (1984). In this regard, the PCRA court determined at the hearing that appellant did not meet his burden.

A review of the hearing transcript reveals that appellant testified as to the facts surrounding his claims and appellant’s father verified some of the testimony of appellant. No other witness or evidence was presented.

Appellant contends that he met his burden of production by producing evidence that trial counsel had been asked to file motions to withdraw his guilty plea and to modify his sentence Appellant’s brief at 8. Appellant argues that “the burden of production, although not the burden of persuasion, which remained on [appellant] as petitioner, then shifted to the Commonwealth which came forward with no evidence.” Id. Appellant, therefore, states that the uncontroverted testimony was that counsel was asked to file motions and did not do so.

This court has previously stated,

Whenever an evidentiary hearing on a claim of ineffectiveness is granted, the burdens of production and persuasion remain on the defendant. If the defendant fails to sustain the offer of proof at the evidentiary hearing, the ineffectiveness claim must fail. A failure to sustain an allegation of ineffectiveness may arise from a failure to present evidence at the evidentiary hearing, or from a rejection of the evidence presented in support of the proffer as not credible. See Commonwealth v. Hentosh, 520 Pa. 325, 334, 554 A.2d 20, 24-25 (1989) (defendant failed to present evidence to sustain the proffer); Commonwealth v. Johnson, 355 Pa.Super. 123, 131, 512 A.2d 1242, 1246 (1986) (defendant’s self-serving testimony m support of an arguable ineffectiveness claim was rejected as not credible).

Commonwealth v. Wells, 396 Pa.Super. 70, 79, 578 A.2d 27, 32 (1990) appeal granted 526 Pa. 648, 585 A.2d 468 (1991).

As pointed out by the Commonwealth, John Elash, appellant’s trial counsel, was referred to by the PCRA court on the following three occasions:

THE COURT: Did any one talk to Mike Turzai [assistant District Attorney] or John Elash as to what their notes reflect?

N.T. at 5.

THE COURT: Where is John Elash? John Elash doesn’t determine the sentence.

Id.

THE COURT: Unless Mr. Elash or Mr. Turzai or somebody else in your office [the A.D.A.] Eric Wolshok [another A.D.A.] different people in your office have been in this case, unless you have something else, why, that’s going to stand [denial of the petition].

N.T. at 18.

With the above inquiries, the PCRA court focused on the burden of production. In the instant case, appellant met neither the burden of production nor the burden of persuasion. It was not for the Commonwealth to produce appellant’s trial counsel as a witness when appellant failed to do so. We agree with the Commonwealth that the reasonableness of trial counsel’s actions or inactions is a prong of the ineffective assistance of counsel claim which must be proven and not merely rebutted. Commonwealth v. Wells, supra.

By way of further argument, appellant contends that the trial court cannot properly pass on the merits of issues until “after the defendant has a full, fair and counselled opportunity to present his claims to the court.” Appellant’s brief at 8. Appellant states that the hearing in this case, with its focus on the performance of trial counsel, is “no replacement for the filing of post-verdict motions, briefing and argument which would have been available in 1989.” Id. Finally, appellant states that counsel’s failure to file motions effectively denied him an opportunity for an appeal on the merits of his case.

As we previously set forth the standard for ineffective assistance of counsel claims, we need not do so again. The alleged omission in this case is trial counsel’s failure to file a Motion to Withdraw Guilty Plea. Before withdrawal of a guilty plea on a post-sentence petition, there must be a showing of prejudice on the order of manifest injustice. Commonwealth v. Siers, 318 Pa.Super. 215, 218-19, 464 A.2d 1307, 1309 (1983) see also Commonwealth v. Harris, supra. During the PCRA hearing, there was no mention of prejudice. In this regard, we note as did the Commonwealth that the PCRA court made the following statements:

THE COURT: ... I gave him a light sentence compared to what he deserved under the circumstances;

N.T. at 15.

THE COURT: I never modify a sentence. I told him at the end of the sentencing, the only time I modify it is when there is an error contained in the presentence report, the sentencing guidelines or some after-discovered evidence. I never modify a sentence unless there is an agreement.

N.T. at 14.

In the absence of any evidence as to what trial counsel’s trial strategy may have been or any evidence as to prejudice, we cannot find that the PCRA court abused its discretion in denying the petition. In light of the foregoing, we affirm the order of the PCRA court denying appellant’s request for post-conviction relief.

Order affirmed.

      . We note that this appeal was filed timely on September 28, 1990.

      . As the PCRA court did not do so, we note that at the time of the guilty plea and sentencing appellant was represented by John Elash, Esquire.

      . Hereinafter, references to the transcript of the PCRA hearing held on August 30, 1990, will be abbreviated to '‘N.T." followed by a page number.

      . We note that appellant’s mother spoke briefly in response to a question from the court at the PCRA court.


author: TAMILIA, Judge:

text:
    596 A.2d 1120
    In the Matter of B.R., a Juvenile. Appeal of R.W.R., Father.
    Superior Court of Pennsylvania.
    Submitted June 12, 1991.
    Filed July 15, 1991.
    Reargument Denied Aug. 9, 1991.

      Frederick I. Huganir, Carlisle, for appellant.
    Frances H. Del Duca, Carlisle, for appellee.
    Carol J. Lindsay, Carlisle, for participating party.
    Ruby D. Weeks, Carlisle, for Cumberland County, participating party.
    Before CIRILLO, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

The father of minor, B.R., appeals from the July 25, 1990, Order adjudicating B.R. a dependent child after the court found appellant had sexually abused B.R. and the mother, who refused to believe the allegation, was incapable of protecting the child from possible further abuse. The facts as found by the trial court are set forth below.

On March 9, 1989, Anne Nickels, the director of the Head Start program where 3-V2 year old B.R. was enrolled, reported her suspicions of sexual abuse of B.R. by appellant to the authorities. Ms. Nickels based her suspicions on statements made to her by B.R. as well as her observations of the child’s vaginal area. B.R. was placed in foster care from March 13, 1989 until March 15, 1989, the date of the initial hearing on the allegation of abuse. On March 15, 1989, the court ordered B.R. be returned to her mother’s custody with the stipulation that until the matter was decided, appellant would not be allowed in the home where B.R. resided or at any time be alone with B.R. The court also directed the matter be continued until such time the appellee, Cumberland County Children and Youth Services (hereinafter CYS), arranged for psychological evaluations for appellant, mother and B.R. The psychological/psychiatric evidence was presented at a hearing on August 8, 1989, and, on July 25, 1990, the court adjudicated B.R. dependent, directed CYS to make efforts to return B.R. to the home and to provide protective services and ordered the parents to comply with counseling as directed by CYS.

Appellant argues the evidence was insufficient to sustain findings B.R. was sexually abused and that the parents failed to care for B.R. and continue to be incapable of providing for B.R.’s best interests. Appellant also argues the court’s jurisdiction lapsed when it failed to render an opinion until almost one year after the final hearing on the matter. Initially, we will address the latter issue.

Appellants contend the court failed to render a decision on B.R.’s dependency until “one year, four months and twelve days after the child was originally taken from her parents.” (Appellant’s brief at p. 6.) Such a delay, appellant alleges, forced the family unit to remain in limbo and violated the mandate of the Juvenile Act:

§ 6341. Adjudication
(c) Finding of dependency. — If the court finds from clear and convincing evidence that the child is dependent, the court shall proceed immediately or at a postponed hearing, which shall occur not later than 20 days after adjudication if the child has been removed from his home, to make a proper disposition of the case.

42 Pa.C.S. § 6341(c). The last hearing on this matter was August 8, 1989, and the court rendered a decision approximately one year later on July 25, 1990. A violation of this provision, while unusual and in this case unexplained, does not result in a lapse of the court’s jurisdiction as contended by appellant. The facts reveal B.R. was removed from her home for only two days in March, 1989, pending the March 15, 1989, hearing after which B.R. was returned to the custody of her mother. It is a consequence of the mother’s decision to allow appellant to return to the marital home that forced B.R. to reside with her paternal grandparents. The juvenile court does not lose jurisdiction over a dependent child simply due to the passage of time, particularly where the court has not removed the minor from her parents’ custody and the child’s absence from the home is a result of the custodial parent’s action. The removal from the parents’ home is not, therefore, chargeable to the court. In this instance, however, the court failed to conduct the proceedings in accordance with the spirit, if not the letter, of the Juvenile Act.

The Juvenile Act, contained in Title 42 Pa.C.S., Judiciary and Judicial Procedure, (see In Interest of Smith, 396 Pa.Super. 624, 579 A.2d 889 (1990)), is procedural in nature and when followed, provides an expedient and complete means for serving the needs of dependent and delinquent children. The reason for proceeding in accordance with the Juvenile Act is to empower the court to effectively intervene in applying the extraordinary remedies available to it. First, if the child has been taken into custody, the Juvenile Court must have a shelter/detention hearing within 72 hours and second, a dependency petition must be filed within 24 hours. 42 Pa.C.S. § 6331. If the child remains in custody and is not returned to the parents, a dependency hearing on the petition must be held within 10 days. 42 Pa.C.S. § 6335(a) (reasonable continuations being permitted for an additional 10 days for various reasons, 42 Pa.C.S. § 6335(a)(1),(2)). While the Act is silent as to the time for completing an adjudicatory proceeding, when the child has been returned to the parents it goes without question that a delay of almost one year is unwarranted. The reasons for this are manifest. First, 42 Pa.C.S. § 6301, Short title and purpose of chapter, provides:

(b) Purposes — This chapter shall be interpreted and construed as to effectuate the following purposes:
(1) To preserve the unity of the family whenever possible and to provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this chapter.
(3) To achieve the foregoing purposes in a family environment whenever possible, separating the child from parents only when necessary for his welfare or in the interests of public safety.
(4) To provide means through which the provisions of this chapter are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced.

Id. Here, the failure to enter an adjudicatory Order soon after the hearing of August 8, 1989, rendered any authority of CYS to render assistance pursuant to the Child Protective Service Law, 23 Pa.C.S. § 6301 et seq., subject to legal attack. Beyond a point of emergency intervention, whereby CYS takes the child into protective custody, the CYS function is synchronized with and dependent upon juvenile court Orders. See 23 Pa.C.S. § 6370(a), Service for protection of child at home or in custody, (b) Intervention of court proceedings, and section 6371, Rehabilitative service for child and family.

Thus without an adjudication, due process was lacking for imposition of any of the dispositional alternatives available under the Juvenile Act. 42 Pa.C.S. § 6351. See Interest of Sweeney, 393 Pa.Super. 437, 574 A.2d 690 (1990). Since one of those alternatives was to permit the child to remain with her parents, guardian or other custodian, subject to conditions and limitations as the court prescribes, including supervision as directed by the court for the protection of the child, CYS was powerless to effectively rehabilitate the family as mandated by both the Juvenile Act and Child Protective Service Law. Delay is harmful in dealing with these problems particularly when the child is so young and the family so unifiable. There is nothing the court did on July 25, 1990, that it could not have done or ordered on August 8, 1989. While the delay did not oust the court of its jurisdiction as contended by appellant, it did serve, unaccountably, to increase the likelihood of further family dysfunction and danger of further abuse to the child. Also, without court monitoring and direction, the family was left to its own devices and, to abide by the preliminary court Order forbidding father-child contact, the child was sent by the mother to live with grandparents and the father returned to the home. Had the adjudicatory and dispositional Orders been entered expeditiously, it is likely that the family would have been united by now or a determination made that other dispositional alternatives were required. We find the court did not abuse its discretion in entering the Order of July 25, 1990, but acted within its plenary jurisdiction and power after reviewing the circumstances of the dependent juvenile and receiving testimony from the parents, CYS and other witnesses concerning the condition and needs of B.R. Adjudicating the child dependent complied with section 6341, and the Order of disposition simultaneously entered was best suited to the protection and physical, mental and moral welfare of B.R. See 42 Pa.C.S. § 6351, Disposition of dependent child; In re Tameka M., 368 Pa.Super. 525, 534 A.2d 782 (1987), aff'd, 525 Pa. 348, 580 A.2d 750 (1990).

This Court’s standard of review with regard to appellant’s sufficiency of the evidence arguments is limited to viewing the evidence in the light most favorable to CYS as the verdict winner; our sole duty is to decide whether there was sufficient evidence to sustain the verdict. Fanin v. Cratty, 331 Pa.Super. 326, 480 A.2d 1056 (1984). A finding of dependency must be based on clear and convincing evidence. In re Barclay, 321 Pa.Super. 417, 468 A.2d 778 (1983). The burden of proof in a dependency proceeding is on the petitioner, herein CYS, who must show the juvenile is without proper parental care, and that such care is not immediately available. In re Swope, 391 Pa.Super. 484, 571 A.2d 470 (1990).

Appellant’s argument there was insufficient evidence for the court to find B.R. had been sexually abused is without merit. Barbara Earns, B.R.’s teacher at the Head Start program, testified her suspicions of possible sexual abuse of B.R. by appellant were aroused when, on March 9, 1989, B.R. complained urinating pained her because her father had touched her with his fingernail in her vaginal area (N.T., deposition testimony of Barbara Earns, 3/15/89, pp. 4-5). B.R. also told Earns the appellant had touched her stomach and breast areas and made her lick him and when she did this water went down her throat (Id, at 5-6). Earns’ examination of B.R.’s vaginal area revealed redness and an odor (Id. at 7). Chris Collie, a social worker intern at the Head Start program who was specifically assigned to B.R. in an attempt to help the child socialize, testified on this same day B.R. offered Ms. Collie the tail of a stuffed kitten and told her to suck its tail. When Ms. Collie feigned ignorance, B.R. made a “face with her mouth” and made a sucking noise “like she was sucking a lollipop.” (Id. at 18-19.) When B.R.’s mother was informed of the allegations of abuse, she took B.R. to a hospital emergency room where an examination revealed nonspecific redness and tenderness involving the labia. The examining physician, Mark Bjorklund, M.D., testified B.R. told him her father had touched that area with his fingernail because she had done something wrong (N.T., 3/15/89, pp. 7-8). The court also considered and found credible the testimony of B.R. who testified the appellant hurt her with his fingernail and/or finger on at least two occasions when he touched B.R.’s vaginal area. During these episodes, B.R.’s mother was in the home but not in the room where the assault occurred.

Based on the testimony and evidence of record we find there is sufficient evidence to sustain the trial court’s finding of sexual abuse or exploitation of B.R. by the appellant.

It is imperative that this case face no further delay in receiving the service required under the Child Protective Service Act and the Juvenile Act. We, therefore, instruct that upon return of the record to the trial court, a disposition review hearing be held within 30 days wherein the progress or lack of it may be reviewed by the court and appropriate remedial action be taken. Pursuant to section 6351(e), Disposition review hearings, a child who has been placed outside the home of his parents, guardian or custodian is required to have a dispositional review hearing within six months of removal from the home. Since placement with the grandparents by the mother was ratified by the Order of July 25, 1990, it appears such a hearing is long overdue. It is also recommended to the trial court that this case be time listed to a date certain for any successive reviews, until the case is closed. Experience proves that cases continued generally are lost in the heavy workload of a busy court and overstressed agency. The only practical means of monitoring performance of the agency and to assure the case is not forgotten is by regularly scheduled reviews, with a specifically determined date established for each review. Had adjudicatory and dispositional Orders been expeditiously entered and reviews set for dates certain, we would not be faced with many of the issues presented here.

For the foregoing reasons, we affirm the July 25, 1990, Order adjudicating B.R. dependent.

Order affirmed.


author: ROWLEY, President Judge:

text:
    596 A.2d 1124
    In re ESTATE OF Harold R. SCHMIDT, Deceased. Appeal of SQUARE 106 ASSOCIATES.
    Superior Court of Pennsylvania.
    Argued April 23, 1991.
    Filed Aug. 13, 1991.
    Reargument Denied Oct. 15, 1991.

      Richard B. Tucker, Jr., Pittsburgh, for appellant.
    Edward C. Schmidt, Pittsburgh, for appellee.
    Richard Disalle, Pittsburgh, for participating party.
    Before ROWLEY, President Judge, and CAVANAUGH and HESTER, JJ.
   ROWLEY, President Judge:

This is a timely appeal by Square 106 Associates from the trial court’s order denying its claim against the estate of Harold R. Schmidt. Appellant has raised the following issues for our review:

1) whether the orphans’ court division lacked jurisdiction because appellant never presented a claim in the estate proceeding;
2) whether the orphans’ court division lacked jurisdiction because appellant withdrew all its filings prior to the audit;
3) whether the orphans’ court division abused its discretion in striking appellant’s withdrawal of its claim; and
4) whether, by adjudicating the instant claim, the orphans’ court division denied appellant due process of law and violated the preemption doctrine which arises from Art. VI, cl. 2 of the United States Constitution.

Having carefully reviewed the record and considered the arguments presented, we affirm the order of the trial court.

I. FACTUAL AND PROCEDURAL HISTORY

The complex factual and procedural history of the instant case, insofar as it is relevant to the issue before us, is as follows. On January 17, 1983, Square 106 Associates (“appellant”), a joint venture, leased office space in the District of Columbia to the law firm of Chapman, Duff & Paul. On February 28, 1985, the firm of Chapman, Duff & Paul entered into a “joint venture” with the law firm of Rose, Schmidt, Dixon & Hasley. The joint venture was known as Rose, Schmidt, Chapman, Duff & Hasley. However, relations between the two firms soured, and their joint venture was dissolved. Sometime thereafter, the Rose, Schmidt firm was renamed Rose, Schmidt, Hasley & Di Salle (RSH & DiS). Harold R. Schmidt was a partner in Rose, Schmidt, Dixon & Hasley; Rose, Schmidt, Chapman, Duff & Hasley; and RSH & DiS.

Harold R. Schmidt died on June 10, 1989. His will was admitted to probate in the orphans’ court division of the court of common pleas of Allegheny County, Pennsylvania. The court issued letters testamentary to Barbara N. Schmidt Wickwire on June 16, 1989. On August 7, 1989, appellant filed a claim in the amount of $2,036,398.00 against Harold R. Schmidt’s estate (“Estate”) in the orphans’ court division of the court of common pleas of Allegheny County, Pennsylvania. The claim, which was on a standard, preprinted form issued by the Allegheny County Register of Wills, stated as follows:

Form 93 — O.C. Division

IN THE COURT OF COMMON PLEAS ... OF ... ALLEGHENY COUNTY, PENNSYLVANIA ORPHANS’ COURT DIVISION
IN RE: ESTATE OF HAROLD R. SCHMIDT (Deceased)
NO. 3222 OF 1989
CLAIM
To the Clerk of Orphans’ Court Division:
Index and make proper entry in your official records of the claim of The Square 106 Associates (Claimant) in the amount of $2,036,398.00 against the estate of the above named decedent. This claim is filed under Section 732(b)(2) of the Fiduciaries Act of 1949 as amended. The said decedent, who resided at 154 North Bellfield, Apt. 20, Pittsburg [sic], PA 15213, died on June 10, 1989.
Written notice of this claim was given to J. Mark Munson of Rose, Schmidt, Hasley & DiSalle, counsel, on August 3, 1989.

The amount of appellant’s claim reflected rent allegedly due under appellant’s lease of January 17, 1983, with the Chapman, Duff law firm.

On August 14, 1989, appellant also filed a “complaint for breach” of the same lease in the Superior Court of the District of Columbia against the estate of Harold R. Schmidt; the estate of Michael W. Balfe, a former partner in the joint venture of Rose, Schmidt, Chapman, Duff & Hasley; and all present and former partners of Rose, Schmidt, Chapman, Duff & Hasley.

The Executor of the Estate filed her account on December 1, 1989. Appellant filed objections to the account on January 5, 1990. In a letter dated January 16, 1990, five former partners of Harold R. Schmidt (the “Angel partners”) notified the Estate in a letter, pursuant to 20 Pa.C.S.A. § 3384, of their claims for indemnification and/or contribution against the Estate in the event that appellant prevailed against them in its District of Columbia lawsuit. The letter was written by Stanley R. Geary, Esq, an Angel Partner, and was sent to Richard Di Salle, Esq., counsel for the Estate.

The Executor’s account was called for audit on January 17,1990, at which time appellant filed a petition for continuance of the audit pending resolution of the litigation in the District of Columbia. This petition was denied, but the parties consented to an order which continued the audit pending the return of Judge Schwartz, who was on vacation. At a conciliation conference held with Judge Schwartz on March 6, 1990, appellant again requested that the orphans’ court division stay distribution of the estate pending the disposition of the proceedings in the District of Columbia action. The trial court refused to stay distribution.

On March 14, 1990, appellant filed a notice of withdrawal of its claim. At a conference on March 21, 1990, the Estate requested that the court strike the withdrawal. On March 22, 1990, the court stated that it would strike the withdrawal and order a hearing on the merits of appellant’s claim against the Estate on March 26, 1990. N.T. 3/22/90, at 2. Appellant’s attorney noted his exceptions to the order and informed the court that he was not authorized by appellant to attend the hearing on the merits of appellant’s claim against the Estate.

In a letter dated March 26, 1990, former partners of the decedent, who are currently partners in the law firm of RSH & DiS (“the RSH & DiS partners”) notified counsel for the Estate, pursuant to 20 Pa.C.S.A. § 3384, of their contingent claims for indemnity and/or contribution in the event that appellant prevailed against them in its District of Columbia lawsuit.

Present at the March 26, 1990 hearing on the merits of appellant’s claim against the Estate were counsel for the Estate, counsel for the Angel partners, and counsel for the the RSH & DiS partners. Neither appellant nor its counsel was present. After listening to the uncontradicted testimony of the Estate, the trial court, in an order entered on July 12, 1990, denied appellant’s claim against the Estate. The Order provides as follows:

ORDER OF THE COURT
AND NOW, this 12[th] day of July, 1990, it is ORDERED, ADJUDGED and DECREED that the Claim of Square 106 Associates against the Estate of Harold R. Schmidt, Deceased is denied.

Order, 7/12/90.

Appellant filed exceptions to the order of July 12, 1990. In the exceptions, appellant stated that the orphans’ court division lacked jurisdiction to adjudicate the merits of appellant’s claim. Appellant further contended that the court’s jurisdiction was limited to deciding whether to order immediate distribution of the Estate’s assets or to defer distribution pending the resolution of the litigation in the District of Columbia. On October 2, 1990, the orphans’ court division entered an en banc order dismissing appellant’s exceptions and “affirming” the orders of March 22, 1990 [striking Appellant’s “withdrawal” of its claim] and July 12, 1990. Appellant filed the instant appeal from the order of October 2, 1990.

In this appeal, appellant contends that the trial court abused its discretion in striking the withdrawal of its claim because permitting the withdrawal of appellant’s claim “would have left the Estate available for distribution to the beneficiaries free of all claim of Square 106 to share in the Estate assets.” Appellant’s Brief, at 27.

II. JURISDICTION

A. PRESENTING CLAIM

Appellant first argues that the orphans’ court division lacked jurisdiction over appellant’s claim against the Estate, because appellant never submitted the merits of its claim for the orphans’ court division’s determination. In support of this contention appellant asserts that 1) the document filed on August 7,1989 was merely a notice of the existence of a claim and, as such, did not commence an action; 2) appellant did not present its claim for audit; and 3) the proper forum for addressing the Estate’s liability to appellant was the District of Columbia.

Appellant asserts that the form filed on August 7, 1989 was not a claim against the Estate, but, rather, a notice of the existence of a claim pursuant to 20 Pa.C.S.A. § 3532(b)(2), which provides as follows:

(b) Rights of claimants against distributed property.
(2) Real property. No claimant shall have any claim against real property conveyed by a personal representative in distribution at his own risk pursuant to subsection (a) hereof, unless such claimant, within one year after the decedent’s death, files a written notice of his claim with the clerk. Such claim against real property shall expire at the end of five years after the decedent’s death, unless within that time the personal representative files an account or the claimant files a petition to compel an accounting.

20 Pa.C.S.A. § 3532(b)(2). According to appellant, since the form filed on August 7, 1987 was merely a notice of a claim, it did not commence an action. The issue before this Court is not whether the form filed by appellant commenced a cause of action. Rather, the issue is whether the orphans’ court division had jurisdiction to decide the merits of appellant’s claim against the Estate.

The orphans’ court division of the court of common pleas has jurisdiction over the administration and distribution of a decedent’s estate. Estate of Stephenson, 469 Pa. 128, 364 A.2d 1301 (1976); 20 Pa.C.S.A. §§ 711(1), 762. In the instant case, the claim for $2,036,398.00 against the Estate, which was filed with the orphans’ court division on August 7, 1987, made no mention of the District of Columbia action. Indeed, the District of Columbia action had not yet been instituted when appellant filed its claim with the orphans’ court division. By filing the claim on August 7, 1987, appellant raised a factual issue concerning the distribution of the estate of Harold R. Schmidt. The orphans’ court division of the court of common pleas had jurisdiction to resolve this issue.

Appellant also contends that the orphans’ court division lacked jurisdiction to adjudicate the merits of appellant’s claim because appellant did not present its claim at the audit. The Probate Code provides as follows:

§ 3386. Failure to present claim at audit
If any claimant whose claim is not reported to the court by the personal representative as an admitted claim shall fail to present it at the call for audit or confirmation, he shall not be entitled to receive any share of the real and personal estate distributed pursuant to such audit or confirmation, whether the estate of the decedent be solvent or insolvent.

20 Pa.C.S.A. § 3386. In the instant case, however, appellant did not fail to present its claim at the call for audit by failing to appear. Instead, appellant filed objections to the Estate’s account on January 5, 1990. Appellant also appeared at the call for audit on January 17, 1990, and petitioned the orphans’ court division for a continuance of the audit. When the court refused to continue the audit pending resolution of litigation in other courts, appellant consented to an order which continued the audit pending the return of Judge Schwartz, who was on vacation. Since appellant appeared at the call for audit and consented to a continuance, the orphans’ court division did not err in concluding that it possessed jurisdiction to adjudicate appellant’s claim.

Appellant further contends that the proper forum for addressing the merits of the Estate’s liability to appellant was in the action brought in the District of Columbia. The Probate Code provides for claims which are being litigated in other forums as follows:

§ 3389. Claims subject to litigation in other courts.
When any claim not proved in the orphans’ court division is being litigated in any other division or court, State or Federal, having jurisdiction thereof, the court may make such provision for the distribution or satisfaction of the claim as shall be equitable.

20 Pa.C.S.A. § 3389. Appellant recognizes that, as a claimant against the Estate, it had two options: 1) to prove its claim in the District of Columbia and ask the orphans’ court division to defer distribution {See 20 Pa.C.S.A. § 3389); or 2) to present and seek to prove its claim at the Estate’s audit in the orphans' court division {See 20 Pa.C.S.A. § 3386). Appellant’s Brief, at 10. Appellant acknowledges that, under this second option, a creditor

may ignore the existence of the res and litigate elsewhere any claims he may have against the estate---- His ability to satisfy out of the estate assets any judgment thereby obtained will be eliminated if the estate is distributed in the meantime____

Appellant’s Brief, at 9-10. In the instant case, however, appellant did not ignore the existence of the res. Nor did appellant merely file a request. that the orphans’ court division postpone distribution pending the resolution of the District of Columbia action. Rather, appellant filed a claim against the Estate. Furthermore, at the time when appellant filed its claim against the Estate, no litigation was pending in the District of Columbia. For the foregoing reasons, the orphans’ court division did not abuse its discretion in concluding that appellant had presented a claim over which the orphans’ court division had jurisdiction.

B. WITHDRAWAL

Appellant next contends that the orphans’ court division lacked jurisdiction because appellant withdrew its claim prior to the audit. This contention is without merit, because the orphans’ court division struck appellant’s withdrawal on March 22, 1990. However, appellant asserts that 1) it could withdraw without leave of court and, therefore, the trial court’s action in striking the withdrawal was nugatory; and 2) by not appearing at the hearing, appellant nonsuited its own claim.

1. Leave of Court

Appellant supports its argument, that it could withdraw without leave of the court, and that, therefore, the trial court’s striking of the withdrawal was nugatory, by relying on the case of Haviland v. Fidelity Ins. Trust & Safe Deposit Co., 108 Pa. 236 (1885). In Haviland, a creditor initially presented three claims against an estate. Thereafter, the creditor sought to withdraw one of the claims. The court disallowed the withdrawal and, subsequently, disallowed the claim against the estate. The creditor brought the same claim in a subsequent action at common law against the executor, who filed a demurrer. On appeal, the Court held that the plaintiff could properly withdraw and, therefore, the court’s disallowance of the claim was nugatory and did not affect the instant action. The Court also noted that rules of practice and procedure in the court of common pleas were of no force in the orphans’ court, because the two courts were separate and there were no pleadings in the process of distribution. Id., 108 Pa. at 243. Haviland is distinguishable from the instant case. In Haviland, no action was pending in another forum when the plaintiff withdrew. In the instant case, although appellant sought to withdraw its claim in the orphans’ court division, it was not willing to discontinue its action against the Estate in the District of Columbia. Further, two later cases, unlike Haviland, indicate that the orphans’ court may disallow withdrawal.

In In re Cross’ Estate, 309 Pa. 418, 164 A. 516 (1932), on which the Estate relies, the plaintiffs filed a petition in the orphans’ court for specific performance of an alleged contract. The defendants denied knowledge of the contract and filed a bill for discovery of the contract. A writ was issued, and the writ and bill were served on the plaintiffs, who failed to file an answer. Subsequently, a decree was entered in which the bill was taken as confessed and the proceedings in the orphans’ court were stayed. The plaintiffs filed exceptions to the decree in which they averred that they were not obligated to file an answer to the bill of discovery because they had withdrawn their petition for specific performance. The court denied plaintiffs’ exceptions, and plaintiffs appealed. On appeal the Court held that the trial court did not abuse its discretion in refusing to allow plaintiffs to discontinue their suit.

In Fontana’s Estate, 22 Pa. D. & C. 496 (1934), a creditor brought a claim against the decedent’s estate in the orphans’ court of Philadelphia county, Pennsylvania. While the auditing judge was waiting for the parties’ briefs, he received a telegram stating that the probate court in Rhode Island should take jurisdiction of the creditor’s claim. Subsequently, the creditor filed a petition to withdraw his claim in the orphans’ court of Philadelphia county. The auditing judge, noting that Haviland and Cross were not in harmony, concluded that Haviland expressed the law of fifty years ago, while Cross expressed the law of 1934. In accordance with the decision in Cross, the auditing judge concluded:

[A] claimant who has presented a claim before an auditing judge, whose evidence has been submitted to the auditing judge, may not withdraw his claim without leave of court.

Fontana, at 500. The trial court affirmed the adjudication of the auditing judge, and, citing In re Cross’ Estate, 309 Pa. 418, 164 A. 516 (1932), and Lamb v. Greenhouse, 59 Pa.Super. 329 (1915), held:

[A] claimant against the estate of a decedent has no absolute right to withdraw his claim, especially after a hearing, where such action may prejudice the rights of the estate. Permission to withdraw the claim rests within the sound discretion of the court.

Fontana, at 500. The court reasoned that the estate would have been prejudiced if the auditing judge had allowed the claimant to withdraw his claim.

The vice of claimant’s position is that after he had been fully heard, manifestly realizing the weakness of his case, he concluded again to try his fortune in another State. Again to defend against the claim would require the inconvenience and expense of the estate going into another jurisdiction again to meet the same claimant and the same witnesses. This we consider most unjust and inequitable, especially since the claimant himself, in the first instance selected this forum.

Fontana, at 501. Although Fontana is not binding on this Court, we find its reasoning to be persuasive. In the instant case, as in Cross and Fontana, appellant presented evidence to the orphans’ court before seeking to withdraw. Appellant filed its claim, filed objections to the Estate’s account and audit, and attended a conciliation conference. Accordingly, the determination of whether or not to allow appellant to withdraw was within the discretion of the orphans’ court division.

2. Nonsuit

Appellant also argues that the trial court could not reach the merits of appellant’s claim against the Estate because, by not appearing at the hearing, appellant nonsuited its claim under Rule 230 of the Pennsylvania Rules of Civil Procedure. Under the Rules of Civil Procedure, a party’s “failure to appear when the case is called for trial does not result in a voluntary nonsuit under Rule 230, but rather a nonsuit under Rule 218.” 1 Goodrich-Amram 2d § 230:2 (1991); Farabaugh Chevrolet-Oldsmobile, Inc. v. Covenant Management, Inc., 361 Pa.Super. 234, 522 A.2d 100 (1987). Rule 218 provides as follows:

Rule 218. Party Not Ready When Case is Called for Trial
When a case is called for trial, if without satisfactory excuse a plaintiff is not ready the court may enter a non-suit on motion of the defendant or a non pros on the court’s own motion. If without satisfactory excuse a defendant is not ready, the plaintiff may proceed to trial.

The language of Rule 218 is precatory, as opposed to mandatory, indicating that Rule 218 does not provide the exclusive procedures to be followed when a party is not ready for trial. Also, the word “plaintiff” as used in Rule 218 “should be construed as referring to the moving party whether that party be the plaintiff prosecuting his or her original claim or a defendant prosecuting a counterclaim.” 1 Goodrich-Amram 2d § 218(a):l. In the instant case, appellant, as a claimant against the Estate, stood in the position of a plaintiff.

The orphans’ court division may enter a nonsuit in the same manner as in an action at law. 20 Pa.C.S.A. § 779(a).

§ 779. Nonsuits
(a) In general. The orphans’ court division may enter a nonsuit under the same circumstances, subject to review in the same manner and with the same effect as in an action at law.
(b) Will contest. A nonsuit may be entered against a contestant in a will contest whenever the contestant has the burden of overcoming the presumption of validity arising from due proof of execution as required by law and the contestant has failed to satisfy that burden.
(c) Other cases. In any other case a nonsuit may be entered against a party where the disposition of the case depends on an issue on which that party has the burden of proof and has failed to satisfy that burden.

20 Pa.C.S.A. § 779. The Official Comment to this section states that “the use of nonsuits when appropriate will avoid unnecessary delay in proceedings brought in the orphans’ court division.” 20 Pa.C.S.A. § 779, Official Comment— 1974. In light of the Estate’s failure to request a nonsuit; the orphans’ court division’s interest in judicial economy and avoiding unnecessary delays (See Pa.C.S.A. § 779; Pa. O.C.R. 2.1); and the fact that appellant now contends that the Estate should be made available for distribution to the beneficiaries free of all claim of appellant to share in the Estate assets (Appellant’s Brief, at 27), we conclude that the trial court did not err in adjudicating appellant’s claim instead of entering a nonsuit or a judgment of non pros.

III. STRIKING WITHDRAWAL

Appellant next argues that the orphans’ court division abused its discretion in striking appellant’s withdrawal. In deciding to strike off appellant’s withdrawal, the trial court considered the following factors: 1) appellant’s refusal to withdraw its claim against the Estate in the District of Columbia; 2) the delay in distribution caused by proceedings involving appellant’s claim in the orphans’ court; 3) the interest of the orphans’ court in the prompt distribution of estates; 4) the unjustness to the beneficiary in further delaying distribution; and 5) the inconvenience to the Estate, Angel claimants and RSH & DiS partners in re-litigating appellant’s claim in the District of Columbia. See T.C.Op. 7/12/90, at 2-4, 8-9. The trial court concluded that appellant’s withdrawal would prejudice the Estate, the Angel claimants, and the RSH & DiS partners. T.C.Op. 7/12/ 90, at 4. As noted above, appellant filed its claim on August 7, 1989. Appellant filed objections to the Estate’s accounting and audit, and requested and attended a conciliation hearing. Not until March 14, 1990 did appellant attempt to withdraw its claim. The trial court properly concluded that the Estate would be prejudiced by appellant’s withdrawal. Finding no abuse of discretion, we affirm the trial court’s order striking appellant’s withdrawal.

IV. CONSTITUTIONAL ARGUMENTS

Appellant argues that, by adjudicating the merits of appellant’s claim, the orphans’ court division 1) violated the Preemption Clause of the United States Constitution by depriving appellant of its right to remove the dispute to federal court; and 2) denied appellant due process because appellant was afforded no notice that, by filing a claim, it would become a “claimant” on the merits. Since appellant failed to raise these arguments in its exceptions and, instead, raises them for the first time on appeal, they have been waived. Pa.R.A.P. 302(a); In re Abrams’ Estate, 419 Pa. 92, 98, 213 A.2d 638, 641 (1965); DeMatteis v. DeMatteis, 399 Pa.Super. 421, 435-36, 582 A.2d 666, 673 (1990). Appellant argues that, although these arguments were not raised in its exceptions, they were mentioned in appellant’s brief in support of its exceptions. In the orphans’ court division, “issues not included in exceptions or petitions will not be preserved by virtue of their having been argued in the supporting brief or at oral argument.” In re Trust of Bachman, 338 Pa.Super. 546, 551, 488 A.2d 27, 29 (1985). For the foregoing reasons, the order of the orphans’ court division is affirmed.

We affirm the order of the orphans’ court division rather than the opinion in support thereof.

Upon appellate review we are not bound by the reason or reasons advanced by the court below in support of a judgment or order for it is the judgment or order itself which is the subject of review.

Hader v. Coplay Cement Mgf. Co., 410 Pa. 139, 145, 189 A.2d 271, 274 (1963). See also 17 Std.Pa.Prac.2d § 92:47. At the hearing on the merits of appellant’s claim against the Estate, appellant did not appear and, thus, no evidence was presented to support its claim. The orphans’ court division accordingly entered an order denying appellant’s claim against the Estate. Since appellant’s claim against the Estate was properly denied by the orphans’ court, the order of the orphans’ court is affirmed. The orphans’ court division is free to continue with Estate proceedings, including distribution, free and clear from any claim by appellant against the Estate.

Order affirmed. Case remanded. Jurisdiction relinquished.

      . Various other actions were filed in the orphans’ court division and in the the court of common pleas of Allegheny County and were removed to the United States District Court for the Western District of Pennsylvania. However, these other actions are not relevant to our disposition of the issues before us in this appeal.

      . These former partners are Margaret B. Angel, Stanley R. Geary, R. Henry Moore, Henry Ingram and Thomas C. Reed.

      . § 3384. Notice of claim

        (a) Written notice. Written notice of any claim against a decedent given to the personal representative or his attorney of record before the claim is barred shall toll the statute of limitations.

      . None of the Angel Partners was a partner in the decedent's law firm at the time appellant’s cause of action arose.

      . The court stated: "In the interest of judicial economy, I am going to strike the notice of withdrawal and order the matter to be heard on Monday, March 26, 1990, at 1:30 p.m." N.T. 3/22/90, at 2. However, no written order was filed in the record certified to this Court. Nonetheless, we note that all parties have proceeded as if the order striking the withdrawal had been reduced to writing and filed.

      . In its opinion in support of the order, the court made the following statement: “There was no valid assignment of the Lease to the Venture and, therefore, there is no liability of either the Venture or the Schmidt Estate.” On appeal appellant has not raised, as an issue, the question of whether the trial court erred in its conclusion regarding the validity of the assignment. Appellant’s sole claim in this appeal, though expressed in a variety of ways, is that the trial court erred in entertaining and adjudicating its claim, contrary to its wishes. Therefore, we express no opinion as to the correctness of the decision made by the trial court on the merits of the underlying claim.

      . See also Rule 229(c) of the Pennsylvania Rules of Civil Procedure, which authorizes a trial court to "strike off a discontinuance to protect the rights of any party from unreasonable inconvenience, vexation, harassment, expense, or prejudice." Pa.R.C.P. 229.

      . Also, Orphans’ Court Rule 3.1 states that, except where provided otherwise, pleading and practice in orphans’ court shall conform to pleading and practice in equity. Rule of Civil Procedure 1512 provides that nonsuits in equity are to be entered and reviewed in the same manner as in actions at law. Rules of Civil Procedure 218 and 230-231 refer to nonsuits at law.