author: BECK, Judge: CAVANAUGH, Judge,

text:
    674 A.2d 702
    In the Interest of M.B. Appeal of P.B. and G.B. Adams County Children and Youth Services.
    Superior Court of Pennsylvania.
    Argued Oct. 24, 1995.
    Filed March 22, 1996.

      Debra P. Fourlas, Gettysburg, Tony Sangiamo, York, for appellant.
    David K. James, Gettysburg, for appellee.
    Chester G. Schultz, Gettysburg, for Adams County Children and Youth Services, participating party.
    Before CAVANAUGH, BECK and HESTER, JJ.
   BECK, Judge:

We decide, inter alia, the standard to be used in determining visitation after the trial court has changed the goal of the family service plan from long term foster care to adoption.

This is an appeal by the parents of M.B. from an order of the Court of Common Pleas which continues placement of M.B. in foster care, changes the goal of the family service plan to adoption, excuses Adams County Children and Youth Services (CYS) from reunification efforts and reduces the parents’ visitation to four times a year. Appellants protest the court’s decision to change the family service plan goal to adoption and reduce visitation. We affirm the trial court’s order.

M.B. was born on May 1, 1982, to P.B. and G.B. and is the youngest of three children. P.B., the mother, was diagnosed as mildly mentally retarded and G.B., the father, was diagnosed as borderline intellectual functioning. In 1984, the parents had difficulty providing appropriate care for their three children despite help from social services and community agencies. M.B. was removed from their custody in 1984, adjudicated dependent and placed in foster care. Review hearings have been held every six months. At each review hearing, the court entered findings that the conditions which necessitated placement continued to exist and determined that placement was best for the protection and welfare of M.B.

In 1988, CYS filed petitions involuntarily to terminate the appellants’ parental rights to M.B. and her two brothers. The Court of Common Pleas entered the order. On appeal, the Superior Court reversed finding that the trial court failed to consider the role of the parental bond in the children’s life. In re P.A.B., M.E.B., M.A.B., 391 Pa.Super. 79, 570 A.2d 522 (1990). This court concluded that termination would not serve the children’s needs and welfare, and continued the status quo of foster care for the children. Id. at 528.

Since the Superior Court’s decision five years ago, M.B. has remained in the custody of CYS. Several changes have occurred which prompted CYS to request a change in M.B.’s permanency goal to adoption. Her parents are now separated with no current plans to reconcile and they each have separate visits with M.B. on a monthly basis. M.B. is now thirteen and has been in the same foster home for eight years. The foster parents would like to adopt M.B. and the child wishes to become a permanent member of the foster family; Finally, all parties acknowledge that any future reunification between M.B. and her natural parents is not a practical consideration.

After hearing from expert witnesses for CYS and for the parents, the trial court ordered M.B.’s family service plan goal to change to adoption and reduced the natural parents’ visitation. Appellants’ motion for reconsideration was denied. The parents’ appeal is properly before us. See In re In the Interest of M.B., KB., J.B., L.B., 388 Pa.Super. 381, 565 A.2d 804 (1989), allocatur denied, 527 Pa. 602, 589 A.2d 692 (1990) (order changing the goal of CYS regarding dependent children to adoption is final and appealable).

Our standard of review in a petition to change the goal of the family service plan is the same as in a dependency appeal. We must accept the facts found by the trial court unless the facts are not supported by the record. In the Matter of Luis R., 430 Pa.Super. 518, 635 A.2d 170 (1993), allocatur denied, 538 Pa. 635, 647 A.2d 511 (1994). Although, as a reviewing court we are bound by facts properly found, we are not bound by the trial court’s inferences, deductions and conclusions made from those facts. Id. Based on properly supported facts, we review to determine if the trial court abused its discretion.

We conclude the trial court did not abuse its discretion. The record supports the trial court’s assessment that the present long term foster care plan is contrary to M.B.’s best interest; therefore, the change in the permanency goal to adoption was proper. See In re J.S.W., 438 Pa.Super. 46, 651 A.2d 167 (1994); In Interest of Sweeney, 393 Pa.Super. 437, 574 A.2d 690 (1990), allocatur denied, 526 Pa. 649, 585 A.2d 469 (1991) (best interest of the child standard is proper standard in determining whether placement goal should be changed); In the Interest of M.B., KB., J.B., L.B., supra. This court in In Interest of Sweeney, supra, quoting In re Quick, 384 Pa.Super. 412, 559 A.2d 42 (1989) stated:

Permanency Planning is a concept whereby children are not relegated to the limbo of spending their childhood in foster homes, but instead, dedicated effort is made by the court and the children’s agency to rehabilitate and unite the family in a reasonable time, and failing in this, to free the child for adoption.

To allow M.B. to remain in permanent foster care when trial testimony conclusively reveals that reunification will never occur is not in the child’s best interest. It simply leaves her without the stability of a permanent family.

Appellants argue that this court’s previous holding refusing to terminate parental rights precludes the trial court from changing M.B.’s permanency goal to adoption. In re P.A.B, M.E.B., M.A.B., supra. In this court’s previous decision, we found that breaking the bond between the natural parents and their children would not be in the best interest of the children. Id. Appellants assert that the circumstances have not changed; therefore, the goal cannot be changed. Without holding that a change of circumstance is a predicate to a change in the family service plan goal, we point out that the record establishes substantial changes in circumstances. The following changes have occurred: the bond between M.B. and her parents has weakened; reunification between M.B. and her natural parents is no longer a viable option; visitation or contact with the natural parents has an adverse effect on M.B. and further visitation may have an even greater adverse effect on M.B. M.B. needs the stability of a permanent family; M.B.’s foster parents wish to adopt her and she wishes to become a permanent member of the foster family. In the prior termination proceeding, family reunification had not been ruled out; a bond existed between the children and parents; there was no evidence that visitation had negative consequences on M.B.; and the adoptive option for M.B. was unclear.

In their argument on appeal, appellants confuse- the standard to be employed in a change of goal proceeding with a termination proceeding. In a change of goal proceeding, the trial court must focus on the child and determine the goal in accordance with the child’s best interests. See In Interest of Sweeney, supra (holding court properly applied best interest of child standard when determining whether placement goal should be changed). In a termination proceeding, the focus is on the conduct of the parents. Termination is controlled by the statutory requirements of 23 Pa.C.S. § 2511. Changing the goal to adoption does not terminate the natural parents’ rights, although it is a step in that direction. We point out that the question of termination is not before us.

For the reasons stated above, we conclude the trial court did not abuse its discretion in determining that the permanency goal be changed to adoption.

Appellants have also appealed the reduction of their visitation from a monthly to a quarterly basis. We conclude the trial court did not abuse its discretion. The standard in evaluating frequency of visitation is based on the best interest of the child. In re Long, 313 Pa.Super. 47, 459 A.2d 403 (1983); In re E.F.V., 315 Pa.Super. 246, 461 A.2d 1263 (1983). As a usual rule, parental visitation is not denied except where a grave threat to the child can be shown. The policy underlying the “grave threat” standard reflects the desirability of continuing contact between the parent and the child. It underscores the importance of each parent’s maintaining a meaningful and sustaining relationship with the child. The “grave threat” to the child standard is applied to visitation both where the child is in the custody of a natural parent and where the child is in foster care and in the custody of the state. See also In Interest of Rhine, 310 Pa.Super. 275, 456 A.2d 608 (1983); In re Mary Kathryn T., 427 Pa.Super. 515, 629 A.2d 988 (1993), allocatur denied, 536 Pa. 646, 639 A.2d 32 (1994); In re Damon B., 314 Pa.Super. 391, 460 A.2d 1196 (1983); In re E.F.V., 315 Pa.Super. 246, 461 A.2d 1263 (1983); and In re Miller, 380 Pa.Super. 423, 552 A.2d 261 (1988).

When the child is in foster care, the grave threat standard supports the goal of family reunification as provided in the Juvenile Act. In Interest Rhine, supra. Allowing visitation except in extreme circumstances encourages continued parental interest and contact in order to prepare the child and family for eventual reunification.

However, when the court finds that reunification is no longer the goal, the grave threat standard is not a proper guide, and must be replaced by a standard that recognizes that the natural family is not likely to be a viable entity. It is difficult to draw a bright line as to the necessity or frequency of visitation because the child’s best interests in some cases will require a gradual tapering of visitation and in others a more abrupt termination. There may even be those rare cases where continued, substantial visitation may be appropriate. To determine whether visitation is in the child’s best interest the court may consider all evidence relating to the child’s best interest including but not limited to the following factors: (1) length of separation from natural parents; (2) effect of visitation on the child; (3) the age, sex and health of the child; (4) the emotional relationship between child and parents; (5) the special needs of the child; and (6) the effect on the child’s relationship with the current caregiver, usually the foster parents. Most importantly, the focus must be on the best interests of the child, in light of the fact that the natural family is not likely to be reunited.

Applying these factors to this case, we find no abuse of discretion on the part of the trial court.

Order affirmed.

CAVANAUGH, J., files a dissenting opinion.

CAVANAUGH, Judge,

dissenting.

I believe that the trial court erred in changing Melissa Baker’s permanency plan goal to adoption and in reducing appellant’s visitation rights and, therefore, I respectfully dissent.

The record reveals that appellants, Glenn and Patricia Baker, are loving and affectionate parents. Appellants’ expert witness, Dr. Ray F. Bowen, Ph.D., as well as ACCYS’ expert, Dr. Gregory Powell, Ph.D., testified at the hearing on December 19, 1994 that the parents are bonded and loving to their daughter to the degree that their mental limitations will allow. The new placement goal of adoption, while not final and conclusive in that the trial court may later reconsider its decision and change the goal back to long-term foster care, approves the practical termination of loving parents’ right to maintain a relationship with their daughter. In a case where we held a similar order appealable, we stated, “By allowing CYS to change its goal to adoption, the trial court has decided that CYS has provided adequate services to the parent but that he/she is nonetheless incapable of caring for the child and that, therefore, adoption is the favored disposition. In other words, the trial court order is the decision that allows CYS to give up on the parent.” In re Interest of M.B., 888 Pa.Super. 381, 388, 565 A.2d 804, 808 (1989) (emphasis added).

In rejecting appellants’ argument that this court’s previous holding in In re P.A.B., M.E.B., M.A.B., 391 Pa.Super. 79, 570 A.2d 522 (1990) precludes the trial court from changing the child’s permanency goal to adoption, the majority finds the following circumstances to have changed: • the bond between the child and her parents has weakened; reunification between the child and her natural parents is no longer a viable option; visitation or contact with the natural parents has an adverse effect on the child and further visitation may have an even greater adverse effect on her. I disagree.

First, the record reveals that the status of the bond between appellants and the child remains the same as it was when we considered the termination request in In re P.A.B., supra. In In re P.A.B., supra, we stated that the trial court’s finding that “the parents have consistently displayed a loving and caring attitude toward the children ... and have exhibited the care and love of parents” was supported by uncontested evidence. Id. at 89, 570 A.2d at 527. Because the trial court failed to examine the role of this parental bond in the children’s lives, and since the children benefitted from the relationship with appellants, we reversed the order terminating appellants’ parental rights. As stated above, the evidence in the instant appeal establishes that the parents continue to display a loving and caring attitude toward the child.

Second, Dr. Gregory Powell, Ph.D. testified that the child’s visits with the parents are “detrimental to her identity formation” because each time she sees them, she is reminded that she “is not fully a part of the [foster] family.” Dr. Bowen testified that “the parental visits as ... relationship building should be phased out. However, [the child] is going through a phase of identity where she needs to know ... her biological heritage.” As such, he recommended that the visits be reduced to quarterly. I disagree that this evidence justifies changing the placement goal to adoption and reducing appellants’ visitation rights to four times per year. See In re Damon B., 314 Pa.Super. 391, 393, 460 A.2d 1196, 1197 (1983) (visitation rights reduced to four times per year because visits created stress for child, including nightmares, enuresis, irrational fear of natural mother and expressions of rage in his behavior). Unlike the child in In re Damon, supra, both experts in this case testified that the child was not experiencing any significant emotional or behavorial difficulties.

The majority states that in determining whether visitation should be reduced, the “focus must be on the best interests of the child, in light of the fact that the natural family is not likely to be reunited.” Thus, the majority holds that when reunification is not possible, in this case because of the mental disabilities of the parents, the “grave threats” standard is no longer applicable. Rather, the standard to be utilized is the “best interests” of the .child.

It has long been the law in this Commonwealth that “only when the evidence clearly shows that [parents] are unfit to associate with [their] children should [they] be denied the right to see them.” Commonwealth ex rel. Turner v. Strange, 179 Pa.Super. 83, 86, 115 A.2d 885, 886 (1955). See also In re Damon B., supra; In Interest of Rhine, 310 Pa.Super. 275, 283, 456 A.2d 608, 613 (1983) (“Visitation has been limited or denied only where the parent has been shown to suffer from severe mental or moral deficiencies that constitute a grave threat to the child.”); In re Mary Kathryn T., 427 Pa.Super. 515, 629 A.2d 988 (1993); In re Adoption of Michael, J.C., 326 Pa.Super. 143, 473 A.2d 1021 (1984).

Reducing appellants’ visitation in this case, where there is no evidence of parental unfitness to associate with the child nor of any severe adverse effect upon the child, is contrary to the Juvenile Act’s goal of family preservation. In Interest of Rhine, supra; Interest of Feidler, 392 Pa.Super. 524, 573 A.2d 587 (1990). In addition, since the child is thirteen years old and will be emancipated in less than five years, appellants should be given the opportunity to visit their daughter “in the expectation of their becoming acquainted and to assist the child when [she] shall have arrived at the age of discretion to make [her] own choice.” Commonwealth ex rel. Turner v. Strange, supra at 86, 115 A.2d at 886. As such, I would reverse the trial court’s order changing the placement goal to adoption and reducing appellants’ visitation rights to quarterly.

      . The parents’ expert testified M.B. received no benefit from the monthly visits and that attempting to maintain the parent-child bond may be detrimental.

      . Furthermore, the Court of Common Pleas Juvenile Division has jurisdiction of placement goals while the Orphan’s Court has jurisdiction over termination of parental rights. In Conklin v. Commonwealth Department of Public Welfare, 105 Pa.Cmwlth. 84, 522 A.2d 1207 (1987), the Commonwealth Court referred to this very situation in a footnote stating "CYS could be acting well within its discretion in maintaining as a goal adoption, notwithstanding temporary lack of success with that goal in Orphans’Court.” 522 A.2d at 1210 n. 6. The court went on to state that "an Orphans’ Court judge may certainly refuse to grant a termination petition brought pursuant to a placement goal, but the goal itself may be subject to scrutiny in juvenile court.” Id. See In the Interest of M.B., K.B., J.B., L.B., supra (discussing difference between goal change and termination of parental rights).

      . The Juvenile Act does not contain any guidelines or suggestions for granting or reducing visitation once the child has been adjudicated dependent and removed from his/her natural parents.


source: Caselaw Access Project

author: OLSZEWSKI, Judge: CAVANAUGH, Judge,

license: Public Domain

text:
    674 A.2d 714
    COMMONWEALTH of Pennsylvania, Appellant, v. William Russell DEWAR, Sr., Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 31, 1996.
    Filed April 3, 1996.
    Cavanaugh, J., filed concurring statement.

      Alan B. Cooper, Assistant District Attorney, Hawley, for the Commonwealth, appellant.
    Stacey B. Chelak, Hawley, for appellee.
    Before CAVANAUGH, EAKIN and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

This appeal is from an order of the Court of Common Pleas of Pike County entered April 26, 1995, which granted appellee William Dewar’s pretrial motions to suppress certain oral statements made to police, and oral and wire interceptions made during a police investigation. We affirm in part, and reverse in part.

At appellee’s preliminary hearing, Richard Johnson testified that on April 30, 1992, he sought medical treatment from appellee, a doctor, related to a head injury. Johnson testified that he was given a sedative and left in a darkened room where he subsequently awoke to find appellee performing oral sex upon him. Then, Shawn Wood testified that he was treated by appellee on June 13, 1994, for a head injury. During the examination, appellee allegedly placed his hand upon Wood’s genital area several times. Further, Wood testified that appellee took him to another room with less light to check the pupils of his eyes. During this portion of the examination, appellee again placed his hand upon Wood’s genital area, unzipped Wood’s pants, and placed Wood’s hand upon the doctor’s own penis which had been removed from his pants.

Wood participated in wire and oral interceptions conducted by Pennsylvania State Police on June 14 and June 29, 1994. Wood consented to the taping of two phone conversations with appellee on June 14 and June 29, 1994. In the first phone conversation, Wood and appellee discussed what had happened during his office visit. Then, in the second phone conversation, appellee agreed to meet with Wood that afternoon in appellee’s office. On June 29, 1994, Wood was “wired” by the police to record his meeting with appellee. In that meeting, Wood and appellee again discussed what had happened during the examination. Appellee claimed that the first touch was accidental, but offered no excuse for the remainder of his behavior. Then, appellee offered and Wood accepted $100 in exchange for a promise not to report the crime to the police. Secretly, appellee also recorded this conversation.

Appellee was questioned at his home by police after they recited Miranda warnings to him. He indicated that he did not do anything to Wood, that he did not remember the incident with Johnson, but that he had done “some things to people in his office” in the past. Then, appellee was arrested and charged with one count of involuntary deviate sexual intercourse involving Johnson, three counts of indecent assault involving Wood, and one count of intimidation of witnesses or victims involving Wood. At the preliminary hearing, it was determined that all charges, except for one count of indecent assault, would be bound over for trial.

Then, appellee filed an omnibus pretrial motion to sever the charges by victim against appellee, to suppress all wire and oral interceptions, to suppress the oral statements made by appellee to police, and to dismiss the remaining two counts of indecent assault against appellee. A hearing was held at which the parties initially stipulated that the transcript of the preliminary hearing, which included transcripts of the wire and oral interceptions, would be presented in lieu of additional testimony and exhibits. N.T., 3/9/95 at 3. During the hearing, however, the Commonwealth requested allowance to supplement the record at a later date with “the statements and affidavit required under the Wire Tap Act,” and if necessary, testimony of the people who prepared the documents. Id. at 23-24, 27. Appellee objected, and the trial judge stated that he would decide later whether such other evidence would be made a part of the record. Id. at 26. Consequently, the trial court denied the Commonwealth’s request to reopen the hearing, and granted several of appellee’s pre-trial motions. Accordingly, the trial court granted appellee’s motions for severance of the charges; suppression of the wire interceptions taken on June 14 and June 29, 1994; suppression of the oral interception taken on June 29, 1994; and suppression of the oral statements made by appellee to police. This timely appeal follows.

On appeal, the Commonwealth claims that the trial court erred in (1) suppressing the oral statements made to the police; (2) suppressing the oral interceptions of June 29, 1994; and (3) not reopening the prosecution testimony at the omnibus pre-trial hearing. While we disagree with appellant’s first contention, we agree with its second claim which necessarily renders the third claim moot.

The Commonwealth’s first claim, that the trial court erred in suppressing appellee’s oral statements made to police, fails. The Commonwealth argues that the statements made were not the product of a custodial interrogation; therefore, Miranda rights never attached to appellee and an explicit waiver of such rights was not necessary. Appellant’s brief at 10-11. Where the Commonwealth appeals the adverse decision of a suppression court, we must consider only the evidence of defense witnesses and so much of the prosecution’s evidence as remain uncontradicted. Commonwealth v. Robinson, 518 Pa. 156, 541 A.2d 1387 (1988). If “the evidence supports the factual findings, we are bound by such findings; a reviewing court may only reverse if the legal conclusions drawn therefrom are in error.” Commonwealth v. Fahy, 512 Pa. 298, 309, 516 A.2d 689, 694-695 (1986).

In the instant case, the evidence presented by the Commonwealth does not demonstrate that appellee’s statements were not the product of a custodial interrogation or that appellee effectively waived his Miranda rights once such rights were administered. The only evidence in the record concerning the statements made by appellee to the police is the following:

Q (Appellee’s Attorney): Now, you reference statements that Dr. Dewar made to you.
A (State Police Trooper): Yes.
Q: When were those statements made?
A: The night I went to interview him at his home.
Q: What did Dr. Dewar say?
A: He stated that during the — first of all he stated that he didn’t do anything to Shawn Wood.
Q: Right.
A: I then questioned him about Richard Johnson, and his statement was, “I don’t remember.”
Q: Right.
A: He stated that he had, in fact, done some things to people in his office, most of it happening, I think in Catasaqua and also the fact that it could have happened with Mr. Johnson, but he’s not sure----
Q: When was the statement made?
A: You mean the date, is that what you’re asking?
Q: This happened when Dr. Dewar was arrested, is that correct?
A: No, those statements were before he was arrested.
Q: Before he was arrested?
A: Yes.
Q: Before those statements were made, did you give him his Miranda rights?
A: Yes, I did.
Q: Did you have him sign a form?
A: No, I did not.
Q: Why not?
A: I didn’t have a form.
Q: He was a suspect at that point?
A: Yeah.
Q: Who else was present when these statements were made?
' A: Trooper Joseph Coceo. He also works at Blooming Grove.

N.T., 9/23/94 at 60-62. Miranda rights attach “whenever a person in custody is subjected to either express questioning or its functional equivalent,” ie., interrogation. Commonwealth v. Chacko, 500 Pa. 571, 578-579, 459 A.2d 311, 315 (1983) (citing Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)). Appellee was clearly “interrogated” in the instant case as the questions posed by police to appellee concerned his involvement in the alleged indecent assaults of Wood and involuntary deviate sexual intercourse with Johnson. Id. Moreover, given the scant facts above, we are constrained to conclude that appellee was in “custody” when questioned. While we note that appellee was questioned in his own home before he was arrested, appellee was also the focus of the investigation and questioned in the presence of two police officers. No evidence was offered as to the length of detention or whether appellee’s freedom of movement was restricted. Under the circumstances, given the evidence presented, we cannot find that the trial court erred in concluding that appellee was in “custody” during the police interrogation. Id.; see also Commonwealth v. Whitehead, 427 Pa.Super. 362, 629 A.2d 142 (1993). Hence, appellee’s Miranda rights attached as his responses were the product of a “custodial interrogation.”

While police read to appellee his Miranda rights, however, the Commonwealth failed to present any evidence on the record that he understood and waived such rights. The Commonwealth must demonstrate that the accused explicitly waived his Miranda rights in order for self-incriminating statements made in the course of custodial interrogation to be admissible. Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979); Commonwealth v. Washington, 393 Pa.Super. 132, 138-141, 573 A.2d 1123, 1126-1127, alloc. denied, 526 Pa. 634, 584 A.2d 317 (1990). In the above-quoted passage from the preliminary hearing, we can only determine that the officer read to appellee his Miranda rights. N.T., 9/23/94 at 61. The Commonwealth surprisingly introduced no evidence that appellee manifested an understanding or explicitly waived his rights upon receiving the Miranda warnings. As the Commonwealth failed to meet its burden of proving an explicit waiver of appellee’s Miranda rights, we are bound to uphold the suppression of appellee’s incriminating oral statements made to the officer. Bussey, supra; Washington, supra. See also Commonwealth v. Iacavazzi, 297 Pa.Super. 200, 203-206, 443 A.2d 795, 797-798 (1981).

Appellant’s second contention, that the trial court erred when it granted appellee’s motion to suppress the oral interception taken on June 29, 1994, pursuant to the Wiretapping and Electronic Surveillance Control Act (“the Act”), however, possesses merit as the conversation in question was not within the Act. The Act provides a statutorily created exclusionary rule such that:

any aggrieved person ... may move to suppress the contents of any intercepted wire, electronic or oral communication, or evidence derived there-from, on any of the following grounds:
(1) The communication was unlawfully intercepted.

18 Pa.C.S.A. § 5721(a) (emphasis added). A communication is “unlawfully intercepted” where one “intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communications. ” 18 Pa.C.S.A. § 5703(1) (emphasis added). Accordingly, if the conversation between appellee and Wood on June 29, 1994, were unlawfully intercepted in this manner, then the Commonwealth’s recording of such conversation would be inadmissible. The threshold inquiry in an analysis of whether the conversation was unlawfully intercepted, however, is whether the conversation was subject to the Act, i.e., whether it constituted an “oral communication.” Under the Act, an “oral communication” is defined as:

[a]ny oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation.

18 Pa.C.S.A. § 5702.

In determining whether the conversation between appellee and Wood was an “oral communication,” we are guided by our highest court’s decision in Commonwealth v. Henlen, 522 Pa. 514, 564 A.2d 905 (1989). In Henlen, the defendant, who was being interrogated by a state police officer at a jail (the defendant’s place of work) regarding the alleged theft of an inmate’s property, surreptitiously recorded his conversation with the officer. During the interrogation, the officer took notes while another officer was present. Consequently, the defendant was charged with criminal violation of the Act under 18 Pa.C.S.A. § 5703. Our Supreme Court held that the defendant did not violate the Act because the officer was not justified in expecting that his conversations would not be intercepted under the circumstances, i. e., they were not “oral communications” within the Act. Henlen, supra. The Court opined that there was no such expectation because such interrogations are routinely recorded by the police, the officer took notes at the interview, and because a third party was present. Id. Consequently, the test for an “oral communication” within the Act requires that the person uttering the words have a justifiable expectation that such words are not intercepted, using similar principles employed to determine whether the utterer had an expectation of privacy. Henlen, 522 Pa. at 519, 564 A.2d at 907; Commonwealth v. Louden, 536 Pa. 180, 190-192, 638 A.2d 953, 958-959 (1994); Commonwealth v. McIvor, 448 Pa.Super. 98, —, 670 A.2d 697, 700 (1996) (en banc).

In the instant case, we find that appellee did not have a justifiable expectation, during his conversation with Wood on June 29, 1994, that his words would not be intercepted, placing the conversation outside of the Act. Appellee, himself, recorded his conversation with Wood while the police recorded the same conversation via an electronic recording device placed on Wood’s person. It is not reasonable for appellee to expect that his words would not be electronically intercepted, when he, himself, was intercepting those very same words. Much like Henlen where the other person to the conversation, the police officer, took notes during the interview, appellee, as the “other person” to the recording orchestrated by the police, memorialized his conversation with Wood by recording it himself. Hence, there can be no reasonable expectation of noninterception. Henlen, supra. Further, the instant case is distinguishable from our recent decision in Mclvor. In Mclvor, we held that a conversation taped by a police officer interviewing stopped motorists regarding traffic violations was an “oral communication” within the Act, and affirmed the conviction of the officer under the Act. McIvor, supra. We found that the motorists had no expectation of privacy, but that they did have an justified expectation that their “words would not be electronically seized and carried by the officer.” Id. at —, 670 A.2d at 704. No motorist recorded, or could be expected to record, such words on his or her own initiative. Here, however, appellee could not have justifiably expected that his words would not be “seized” by the police since he recorded such words on his own.

Instantly, we are presented with the rare case: a reasonable expectation of privacy coupled with no comparable expectation of noninterception. See McIvor at —, 670 A.2d at 700 (explaining that “[generally, where there is an expectation of privacy[,] there is also an expectation of noninterception. Such is not always the case”). Appellee, talking to Wood in his office with the door closed, had a reasonable expectation of privacy. See Commonwealth v. Black, 365 Pa.Super. 502, 508-509, 530 A.2d 423, 426-427 (citing O’Connor v. Ortega, 480 U.S. 709, 718-719, 107 S.Ct. 1492, 1498, 94 L.Ed.2d 714, 722 (1987)) (“As with the expectation of privacy in one’s home, such an expectation in one’s place of business is ‘based upon societal expectations that have deep roots in the [Fourth] Amendment.’ ”). Such an expectation, however, is not dispositive of whether the communication in question is an “oral communication” within the Act, i.e., whether the utterer of words had a reasonable expectation of noninterception. McIvor at —, 670 A.2d at 700. A conversation will be held outside of the Act where we cannot find a justified expectation that one’s words will not be electronically recorded. Id.; Henlen, supra; Louden, supra. See also Commonwealth v. Brion, 539 Pa. 256, 258-260, 652 A.2d 287, 288 (1994). Since we hold that appellee did not have a justified expectation that his conversation with Wood on June 29, 1994, would not be intercepted, the Commonwealth’s recording is not an “oral communication” which is subject to the provisions of the Act. Id. Hence, the trial court erred in ordering suppression of this interception. Louden, supra.

Moreover, the final issue, whether the lower court abused its discretion in refusing to reopen the hearing concerning the necessary approval and review under the Act for the interception which is the subject the preceding issue, is rendered moot by our holding that the conversation was outside of the Act. Since such communication was outside of the Act, no hearing is necessary to determine the applicability of the Act to its recording by the police.

For the foregoing reasons, we affirm the portion of the order suppressing the oral statements made by appellee to police, but reverse the portion of the order which suppressed the recording of appellee’s conversation with Wood on June 29,1994.

ORDER AFFIRMED IN PART, REVERSED IN PART.

Concurring Statement by CAVANAUGH, J.

CAVANAUGH, Judge,

concurring:

I join the majority but write separately to further stress that if the June 29, 1994 conversation were an “oral communication” as defined by the Wiretapping and Electronic Surveillance Control Act, suppression of the conversation would be required. The Act specifically sets forth simple requirements (whether the interception be consensual or nonconsensual) necessary for the approval of the interception of communications. These guidelines were apparently not followed by the Commonwealth in this case, thus necessitating a more taxing inquiry into whether the conversation at issue fell within the definition of an “oral communication.” I echo the majority’s caution to the Commonwealth regarding the failure to obtain prior authorization under the Act; and further admonish the Commonwealth that a prior request and approval, in accordance with the Act, should be made before any interception is permitted to take place.

      . Note that the subject of this appeal concerns only the oral interception of June 29, 1994.

      . 18 Pa.C.S.A. § 3123(a)(3).

      . 18 Pa.C.S.A. § 3126(a)(1), (3).

      . 18 Pa.C.S.A. § 4952(a)(1).

      . We note that the trial court implicitly decided that appellee’s responses were the product of a “custodial interrogation” since it suppressed appellee’s statements based upon the Commonwealth’s failure to prove appellee’s waiver and understanding of such rights. Trial court opinion, 9/5/95 at 3.

      . 18 Pa.C.S.A. § 5701 et seq.

      . We caution the Commonwealth in its approach to the instant case. The better approach would have been to obtain the necessary District Attorney (or Attorney General) approval and Superior Court judge review prior to the "wiring” of Wood, and to present such evidence to the suppression court. See 18 Pa. §§ 5704(2)(ii), 5708-5726; Commonwealth v. Brion, 539 Pa. 256, 258, 652 A.2d 287-288 (1994). If it had done so, the admissibility of the recording of the conversation would not have hinged on our determination of whether or not this case is within the Act. In most cases, the Commonwealth cannot rely upon the defendant to record his own words to render a conversation outside the Act. Hence, we strongly suggest that the District Attorney’s Office acts with due diligence, in following the procedures prescribed by the Act, in its prosecution of future cases.

      . We note that, instantly, the Commonwealth has failed to raise the issue of the propriety of suppression of the wire interceptions of June 14 and June 29, 1994 made by the police. Accordingly, such issue has been waived for further appellate review. Pa.R.A.P. 302(a).


author: CAVANAUGH, Judge:

text:
    674 A.2d 720
    Lynn OBERNEDER, Appellee, v. LINK COMPUTER CORP., Key Information Systems, Inc., and Timothy C. Link, Appellants.
    Superior Court of Pennsylvania.
    Submitted Nov. 20, 1995.
    Filed April 9, 1996.

      Stephen D. Wicks, Altoona, for appellants.
    Timothy J. Huber, Lebanon, for appellee.
    Before CAVANAUGH, DEL SOLE and BECK, JJ.
   CAVANAUGH, Judge:

This is an appeal from an order of the Court of Common Pleas of Blair County, which granted appellee Lynn Oberneder’s motion for attorneys’ fees pursuant to § 260.9a(f) of the Pennsylvania Wage Payment and Collection Law [‘WPCL”]. 43 P.S. § 260.1, et seq. Appellants, Link Computer Corp., Key Information Systems, Inc., and Timothy C. Link, argue that since the award of attorneys’ fees under the WPCL is discretionary not mandatory, the trial court erred when it awarded appellee attorneys’ fees as a matter of right.

The procedural history and relevant facts are as follows: Appellee brought suit against appellant for breaching his employment contract and violating the WPCL. Appellee claimed that he was entitled to a commission payment for negotiating the sale of a division of appellant’s company. A jury awarded appellee forty-six-thousand six-hundred dollars ($46,600.00) in compensatory damages. Thereafter, appellee filed a motion seeking an award of attorneys’ fees pursuant to § 260.9a(f) of the WPCL. The trial court issued an order stating “... after a review of the pleadings, briefs, and in accordance with statutory and case law, the plaintiffs motion for counsel fees pursuant to 43 P.S. § 260.9a(f) is granted.” The trial court awarded appellee fourteen thousand dollars ($14,000.00) based upon the applicable fee agreement. Post-trial motions were denied. This appeal followed.

The question appellant presents to us is a matter of simple statutory construction. We must determine whether 43 P.S. § 260.9a(f), which provides for the award of attorneys’ fees, is discretionary or mandatory. If the provision is mandatory, appellants’ claim on appeal would fail because appellee’s favorable verdict below would automatically entitle him to attorneys’ fees as a matter of law. However, if it is discretionary, we must examine the record and decide whether the trial court abused its discretion in awarding attorneys’ fees.

Pennsylvania enacted the WPCL to provide a vehicle for employees to enforce payment of their wages and compensation withheld by their employers. 43 P.S. § 260.1, et seq. One of the civil remedies available to a successful plaintiff is the award of attorneys’ fees:

The court in any action brought under this section shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow costs for reasonable attorneys’ fees of any nature to be paid by the defendant.

43 P.S. § 260.9a(f) (emphasis added). Our research has revealed no Pennsylvania appellate cases that have addressed the implications of the word “shall” used in this provision of the statute. In fact, it appears the statute has generated only scant decisional law in Pennsylvania. See Todora v. Jones & Laughlin Steel Corp., 304 Pa.Super. 213, 219, 450 A.2d 647, 649 (1982).

In cases where the courts have applied the WPCL, they have typically awarded successful plaintiffs attorneys’ fees without deliberative comment. See Barnhart v. Compugraphic Corp., 936 F.2d 131 (3d Cir.1991) (finding that defendant acted in good faith does not preclude award of the amount of attorney’s fees therefore “... case is remanded for a determination of the attorneys’ fees to which Plaintiffs are entitled”); Godwin v. Visiting Nurse Association Home Health Services, 831 F.Supp. 449 (E.D.Pa.1993) affirmed, 39 F.3d 1173 (3rd Cir.1994) (“Under [WPCL] in addition to repayment of back wages, [plaintiff] is entitled to recover ... her reasonable attorney’s fees”); Teamster’s Pension Trust Fund of Philadelphia and Vicinity v. Philadelphia Fruit Exchange, 603 F.Supp. 877 (E.D.Pa.1985) (“... under the WPCL [plaintiffs] are ... entitled to judgment as a matter of law as to the unpaid contributions and reasonable attorney fees under state law”); Yatron v. Lydon, 20 D & C 4th 251 (1993) (“The Plaintiffs are entitled to attorneys’ fees and costs pursuant to 43 P.S. § 260.9a(f).”)

Although these cases do not address the issue of whether thé word “shall” should be interpreted as discretionary or mandatory, their summary inclusion of attorneys’ fees, without mention of any relevant evidence, suggests that an award of attorneys’ fees is viewed as mandatory upon a plaintiffs judgment. Moreover, since none of the aforementioned cases were decided by our Pennsylvania Appellate Courts, we are not bound by their application of this provision. Nevertheless, we find these dispositions persuasive and proceed to analyze § 260.9a(f) to determine the legislator’s intent -with respect to its use of the word “shall” as it relates to the award of attorneys’ fees.

Initially, we note that in Pennsylvania “the term ‘shall’ is generally construed as creating a mandatory duty, and that it has only been in rare cases involving matters of time or form that the word ‘shall’ has been construed as creating only a discretionary or directory duty.” Commonwealth v. Ferguson, 381 Pa.Super. 23, 32, 552 A.2d 1075, 1080 (1988); see also Mamone v. Beltone Hearing Aid Services, Inc., 416 Pa.Super. 555, 611 A.2d 755 (1992); Tyler v. King, 344 Pa.Super. 78, 496 A.2d 16 (1985). When interpreting whether a statute is mandatory or discretionary, we must do so with the goal of ascertaining and giving effect to the intent of the legislature. Id. “[W]e ascertain this intent after reviewing the entire act, its nature, object and purpose, the respective consequences of various constructions of the particular statute, and after determining whether the action allegedly mandated by the statute is the essence of the thing to be done pursuant to it.” King, at 85, 496 A.2d at 19; see also, The Statutory Construction Act of 1972,1 Pa.C.S.A. § 1921(c).

Generally, the underlying purpose of the WPCL is to remove some of the obstacles employees face in litigation by-providing them with a statutory remedy when an employer breaches its contractual obligation to pay wages. 43 P.S. § 260.1. et seq. In essence, the primary goal of the WPCL is to make whole again, employees whose wages were wrongfully withheld by their employers. To assure that employees would be made whole again, the legislature included the provision that the court “shall ... allow costs for reasonable attorneys’ fees ...” in addition to any judgment awarded. 43 P.S. § 260.9a(f).

After considering § 260.9a(f) in the context of the entire statute, keeping in mind the statute’s purpose of protecting employees and the remedial relief it seeks to provide, we conclude that the legislature intended a mandatory award of attorneys’ fees for a plaintiff who prevails on a claim pursued under the Act. This interpretation is consistent with the general import of the statute, and goes to the very “essence” of its goal of making an employee whole again. King, at 85, 496 A.2d at 19. Otherwise, employees who are unjustly deprived of their wages by their employers, may be deterred from filing suit because of burdensome legal costs. See Barnhart, 936 F.2d. at 134. Similarly, employees who do file suit and are successful, would be subjected to payment of a substantial part of their award (which represents earned compensation) as attorneys’ fees. This would clearly undermine the intent of the statute; because employees who are unable to retain their wages will not be made whole. Without an award of attorneys’ fees the end result would be only a partial recovery under the statute. Therefore, under the WPCL, an employee who has prevailed on a claim for past wages due, is entitled to attorneys’ fees as a matter of entitlement.

Although we affirm the Order, we direct that the Order be entered as a judgment below.


author: HUDOCK, Judge: JAMIESON, Judge,

text:
    674 A.2d 723
    WEBB MANUFACTURING COMPANY, Appellant, v. Larry SINOFF and Brad Sinoff, Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 27, 1996.
    Filed April 10, 1996.

      Daniel J. Hetznecker, Merion Station, for appellant.
    Richard S. Glassman, Philadelphia, for Larry Sinoff, appellee.
    Before BECK, HUDOCK and JAMIESON , JJ.

       This decision was reached prior to the retirement of Judge Jamieson.

   HUDOCK, Judge:

Webb Manufacturing Company appeals from the July 5, 1995 order which granted Larry Sinoff and Brad Sinoffs preliminary objections in the nature of a demurrer and dismissed its complaint with prejudice. We reverse.

This case commenced on September 30, 1994 when Webb Manufacturing Company (Webb) filed a complaint alleging that Brad Sinoff and Larry Sinoff (Sinoffs), on behalf of Apple Marketing, entered a contract to purchase goods and services. Webb averred that Sinoffs “in their capacity as principles [sic] of Apple Marketing” guaranteed to pay for the goods and services supplied by Webb in the event that Apple Marketing could not pay for them. Webb further averred that Sinoffs guaranteed the payment for the goods and services to induce Webb to enter such contract. Webb claimed that without Sinoffs’ personal guarantee, it would not have agreed to ship the goods to'Apple Marketing.

On April 7, 1995, Sinoffs filed preliminary objections in the nature of a demurrer claiming that Webb’s claim was barred by the Statute of Frauds, 33 P.S. section 3. Sinoffs also claimed that Webb could not recover against them individually since they conspicuously entered the contract in their capacity as agents of Apple Marketing.

On May 5, 1995, Webb filed an amended complaint raising two additional counts; one averring that Sinoffs were unjustly enriched and one seeking to pierce the corporate veil of Apple Marketing. In response to the amended complaint Sinoffs filed a motion to strike the amended complaint or in the alternative a preliminary objection in the nature of a demurrer. Sinoffs requested the court to strike the amended complaint since it was not timely filed within the required twenty-day period following service of their preliminary objections. See Pa.R.C.P. 1028(c)(1) (party may tile an amended complaint as of course within twenty days after service of preliminary objections). In the alternative Sinoffs requested the court to grant their demurrer based on the failure of Webb to comply with the Statute of Frauds.

On June 2, 1995, a panel of arbitrators found in favor of Webb and awarded it a judgment of $7,103.20 plus interest. Sinoffs appealed this decision to the Court of Common Pleas and on July 5,1995, the trial court sustained Sinoffs’ demurrer and dismissed the complaint with prejudice. The trial court sustained Sinoffs’ preliminary objections on two grounds: (1) Webb’s complaint failed to attach a written guarantee or contract wherein Sinoffs agreed to pay a debt of Apple Marketing as required by the Statute of Frauds, and (2) Webb could not recover against Sinoffs individually since they contracted with Webb as agents of Apple Marketing.

Webb raises two questions for our review: Did the trial court err by sustaining Sinoffs’ demurrer, and should the trial court have addressed the allegations raised in its amended complaint?

When faced with a preliminary objection in the nature of a demurrer, the court must accept as true all well-pleaded facts contained in the plaintiffs complaint along with every reasonable inference which may be drawn therefrom. Al Hamilton Contracting Company v. Cowder, 434 Pa.Super. 491, 495-97, 644 A.2d 188, 190 (1994). A demurrer can only be sustained if the complaint is clearly insufficient to establish the plaintiffs right to relief. Bash v. Bell Telephone Company of Pennsylvania, 411 Pa.Super. 347, 352-54, 601 A.2d 825, 828 (1992).

Applying these standards we must determine whether Webb’s complaint sufficiently pled a viable cause of action against Sinoffs. The trial court concluded that Webb could not recover from Sinoffs in their personal capacity because it “failed to produce any written promise by [Sinoffs] to pay the debt of Apple Marketing[]” and thus failed to meet the requirements of the Statute of Frauds. Trial Court Opinion, 9/26/95, at p. 2. Without evidence that Sinoffs executed a written agreement to personally answer for the debt of Apple Marketing, the trial court concluded that Webb’s breach of contract claim was unenforceable under the Statute of Frauds.

The pertinent provision of the Pennsylvania Statute of Frauds is found at 33 P.S. section 3, which provides in pertinent part:

No action shall be brought ... whereby to charge the defendant, upon any special promise, to answer for the debt or default of another, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him authorized.

33 P.S. § 3.

We have previously explained the purpose of this rule: Promises to pay the debt of another must be in writing for at least two reasons. The first is evidentiary. The second, cautionary.
Like other provisions of the statute [of frauds], the suretyship provision serves an evidentiary function. Indeed, Williston suggested that the circumstance that ‘the promisor has received no benefit from the transaction ... may make perjury more likely, because while in the case of one who has received something the circumstances themselves which are capable of proof show probable liability, in the case of a guaranty nothing but the promise is of evidentiary value.’ Furthermore, though in many instances the surety is paid by the principal for his undertaking, in others the surety’s motivation is purely gratuitous and, ‘as the lack of any benefit received by the guarantor increases the hardship of his being called upon to pay, it also increases the importance of being very sure that he is justly charged.’
In addition to its evidentiary role, the provision serves a cautionary function. By bringing home to the prospective surety the significance of his act, it guards against ill-considered action. Otherwise, he might lightly undertake the engagement, unwisely assuming that there is only a remote possibility that the principal will not perform his duty....
E.A. Farnsworth, Contracts § 6.3 (1982).

Thomas A. Armbruster, Inc. v. Barron, 341 Pa.Super. 409, 412, 491 A.2d 882, 883-84 (1985) (emphasis in original).

The suretyship provision of the Statute of Frauds is a nonwaivable affirmative defense which may serve as the basis for a demurrer and a judgment on the pleadings. Blumer v. Dorfman, 447 Pa. 131, 134-38, 289 A.2d 463, 466-67 (1972).

The suretyship provision of the Statute of Frauds, however, does not apply if the main object of the promisor is to serve his own pecuniary or business purpose. Biller v. Ziegler, 406 Pa.Super. 1, 8-10, 593 A.2d 436, 440 (1991); See Eastern Wood Products Company v. Metz, 370 Pa. 636, 641, 89 A.2d 327, 330 (1952) (Supreme Court adopts exception to suretyship provision of the Statute of Frauds). This exception, known as the “leading object” or “main purpose” rule, “applies whenever a promisor, in order to advance some pecuniary or business purpose of his own, purports to enter into an oral agreement even though that agreement may be in the form of a provision to pay the debt of another.” Biller, 593 A.2d at 440. The Restatement (Second) of Contracts explains the rationale of this exception:

Where the surety-promisor’s main purpose is his own primary or business advantage, the gratuitous or sentimental element often present in suretyship is eliminated, the likelihood of disproportion in the values exchanged between promisor and promisee is reduced, and the commercial context commonly provides evidentiary safeguards. Thus there is less need for cautionary or evidentiary formality than in other cases of suretyship.

Restatement (Second) of Contracts § 116, Comment a; Thomas A. Armbruster, Inc., 491 A.2d at 884.

The trier of fact, who is better able to weigh the evidence and assess the credibility of witnesses, must determine whether a promisor’s main purpose for making a guaranty was to servé his own pecuniary or business ends. Id. Case law in this Commonwealth has not provided a bright line test to determine if the promisor made an oral guarantee for his own pecuniary or business interest. Id. We have previously explained:

The difficult question has been and continues to be: what is the test for determining when the promisor’s promise is basically to benefit himself rather than to benefit and accommodate another? The formulations which have emanated from the many cases are invariably insufficient. Thus, where the promise is labelled an ‘original obligation’ rather than a collateral one, or where the promisor is called a ‘debtor’ rather than a surety, the courts are not supplying workable tests but are merely stating conclusions. The reason for the lack of success in formulating a test is that the question to be answered relates to the purpose, motive, object or desire of the promisor and, therefore, it can only be answered by analyzing the complex of objective manifestations surrounding the making of the promises.
J. Murray, Murray on Contracts § 316 (2d ed. 1974).

Armbruster, Inc., 491 A.2d at 884.

In cases where the promisor is a shareholder or officer of a corporation whose debt he has personally guaranteed, courts consider the percentage of the shareholder/guarantor’s corporate ownership as a significant, although not sole criteria. Id. at 885. For example, in Acme Equipment Company Inc. v. Allegheny Steel Corporation, 207 Pa.Super. 436, 217 A.2d 791 (1966), Rudy Valentino, the President and owner of 25% of Allegheny Steel Corporation, orally guaranteed to Acme Equipment Company that he would pay the debt incurred by Allegheny. Id. 217 A.2d at 792. When Acme attempted to enforce the oral guarantee, the trial court entered a compulsory nonsuit in favor of Valentino since the promise fell within the Statute of Frauds. On appeal, this Court examined whether Valentino made the promise for his own pecuniary interest. We explained:

Although the [Statute of Frauds] does not apply if the main object of the promisor is to serve his own pecuniary or business purpose, ... the statute is not rendered inapplicable merely because a stockholder may indirectly receive some gain when he promises to pay the debt of a corporation. In Bayard v. Pennsylvania Knitting Mills Corp., 290 Pa. 79, 84, 137 A. 910, 912 (1927), the Supreme Court stated: “Ordinarily, the interest which a stockholder has is not individual, for he cannot be held for the corporate debts, and, if a promise to indemnify its creditor is made, the statute of frauds applies. * * * The mere fact that such person is concerned in promoting the financial success of the company is not sufficient to justify the treating of the promise of guaranty as an original undertaking. * * *”

Acme Equipment Co., 217 A.2d at 792.

In Acme, we distinguished Eastern Wood Products Company v. Metz, supra, where the promisor owned 100% of the stock of the corporation whose debt he guaranteed. In that case, we found that the promisor made the oral guarantee to protect and benefit himself as the sole stockholder of the company. Acme, 217 A.2d at 792. In Acme, however, we concluded that Valentino’s 25% ownership in Allegheny in itself did not establish that Valentino’s main purpose in making the oral guarantee was to serve his own pecuniary or business interest. Id.

In the present case the trial court did not consider whether the Sinoffs made the alleged oral guarantee for their own pecuniary or business ends. The court concluded that Webb admitted in paragraph 8 of its complaint that it contracted with Apple Marketing and not Sinoffs in their individual capacity. Paragraph 8 of Webb’s complaint read:

8. [Appellees] Larry Sinoff and Brad Sinoff, in their capacity as principles [sic] of Apple Marketing, guaranteed the above-referenced bill in the event that Apple Marketing did not pay for said goods and/or services as was agreed.

Webb’s Complaint, at p. 2 (emphasis added). The trial court concluded that the “leading object” exception did not apply as a matter of law since Webb averred in paragraph eight that Sinoffs acted in their capacity as principals of Apple Marketing.

Webb asserts that the court placed too much emphasis on the words “in their capacity as principles [sic] of Apple Marketing” found in paragraph eight of its complaint. Webb clarifies that when it referred to Sinoffs as principals, it meant those individuals with authority to act on behalf of Apple. Webb’s Brief, at p. 15. Webb argues that the trial court ignored other averments in its complaint which made it clear that the alleged guarantee made by Sinoffs was “a personal one and amounted to an agent’s agreement to assume liability.” Webb’s Brief, at p. 15.

After examining the complaint in its entirety, we find Webb pled sufficient facts to raise the “leading object” exception to the Statute of Frauds, thus preventing the entry of a demurrer. Webb averred that Sinoffs made the guarantee “in the event that Apple Marketing did not pay for said goods and/or services as was agreed.” Webb’s Complaint, ¶ 8. Webb further averred that: “[Sinoffs] guaranteed the above-referenced bill in order to induce [Appellant] Webb Manufacturing to sell said goods and/or services to Apple Marketing.” Webb’s Complaint, ¶ 9. Cognizant of the standard that a demurrer may only be sustained when it is clear and free from doubt that the law will not permit recovery by the plaintiff upon the facts averred in the complaint, and that all doubts must be resolved against granting the demurrer, we find that the trial court erred in granting Sinoffs’ demurrer. Pekular v. Eich, 355 Pa.Super. 276, 279-81, 513 A.2d 427, 429 (1986), alloc. den., 516 Pa. 635, 533 A.2d 93 (1987). Accepting as true Webb’s averment that it would not have sold Apple Marketing goods and services without Sinoffs’ personal guarantee, Webb asserted sufficient facts to raise the “leading object” exception to the Statute of Frauds. If further facts are adduced when the parties replead or during discovery or at trial which prove that Sinoffs guaranteed Apple Marketing’s debts for their personal benefit, Webb may prevent the lack of a written agreement and the Statute of Frauds from barring its ability to enforce the oral agreement. We find the facts of Grant R. Wright, Inc. v. Haworth Energy Resources, Inc., 337 Pa.Super. 115, 486 A.2d 507 (1984), analogous. In that case the trial court granted a demurrer and dismissed the allegation of personal liability against the appellee-defendant Carl W. Householder, the president of and 52% shareholder in Ha-worth Energy Resources. The appellant-plaintiff supplied coal to Haworth and claimed that Haworth owed it a debt of $36,800. The appellant further averred in Count two of its complaint that Carl Householder, as an agent or broker for Lockport Paperboard Corporation, orally agreed to be personally liable for future coal shipments to Lockport and for Haworth’s present obligations. The trial court found that this alleged oral agreement was a suretyship contract which is unenforceable unless in writing. On appeal, we reversed finding that there was insufficient evidence to determine whether Householder made the guarantee for his personal benefit thus implicating the “leading object” exception to the Statute of Frauds. Id., 486 A.2d at 509. We reasoned:

We feel that the amount of appellee Householder’s financial interest in the Haworth Corporation, coupled with that of his son, requires the further elucidation of the circumstances in this case.
It is entirely possible that no exception to the Statute [of Frauds] can be shown from evidence adduced at trial, but we hold, as did the Pennsylvania Supreme Court in [Blumer v. Dorfman, supra ], that the defense of the Statute, without more, should not have been made the basis for a judgment on the pleadings.

Id. (citations omitted).

This analysis applies to the present case. The trial court should not have dismissed Webb’s complaint with prejudice when there was insufficient evidence as to Sinoffs’ motive in making the alleged oral guarantee to pay Apple Marketing’s debt. We recognize, as we did in Grant R. Wright, Inc. v. Haworth Energy Resources, Inc., supra, that Webb may be unable to prove that the leading object exception applies in this case at the time of trial. However, at this stage of the proceedings, we find that the trial court should not have granted Sinoffs’ demurrer on the basis of the Statute of Frauds when there were sufficient facts pled to raise the defense.

Order reversed. Case remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

JAMIESON, J. files a Concurring Statement.

JAMIESON, Judge,

concurring.

I join in the Opinion authored by Judge Hudock. I write separately only to emphasize the point addressed in footnote one of Judge Hudock’s Opinion, to wit: had the parties and the trial court adhered to Rules 1028 and 1030 of the Pennsylvania Rules of Civil Procedure, a great deal of time and energy would have been conserved. Moreover, the extended analysis utilized by Judge Hudock, which of necessity examines case law dependent upon the resolution of factual questions, amply illustrates the wisdom of requiring affirmative defenses to be pled as new matter; for affirmative defenses generally require a trial court to resolve factual disputes. On the other hand, in filing a demurrer the moving parties agree to accept the factual statements as pleaded. See generally Williams v. Gruntal & Co., 447 Pa.Super. 357, 669 A.2d 387 (1995). In this case, the chosen procedural posture left critical facts unresolved which must now be determined on record.

      . Pa.R.C.P. 1030(a), 42 Pa.C.S.A., provides that the affirmative defense of the Statute of Frauds "shall be pleaded in a responsive pleading under the heading 'New Matter’.” Furthermore, the official "Note” to Pa.R.C.P. 1028(4) specifically states: "The defense of the bar of a statute of frauds or statute of limitations can be asserted only in a responsive pleading as new matter under Rule 1030.” Sinoffs erred by raising the statute of frauds defense in a preliminary objection. They should have raised the defense in new matter and the trial court should have dismissed the preliminary objection in the nature of a demurrer on the grounds that the statute of frauds defense was improperly raised. If the parties adhered to the procedural rules, Sinoffs would have raised the affirmative defense in their new matter. Webb would then have had the opportunity to raise the leading object exception in its reply to new matter. Neither party has raised this procedural error or challenged the trial court's grant of the demurrer on this basis. We will therefore not reverse the trial court’s order on this basis.

        . It is unclear from the record what the Sinoffs’ ownership interest is in Apple Marketing. This evidence is clearly relevant to the trial court’s determination of the parties' main purpose in guaranteeing Apple Marketing’s debt.

      . Because of our disposition of this claim, we do not have to address Webb’s second argument that the trial court should have examined the allegations raised in its amended complaint.


author: POPOVICH, Judge: JOHNSON, Judge,

text:
    674 A.2d 728
    Lee C. LARSON, Appellant, v. Paul DIVEGLIA, Appellee.
    Superior Court of Pennsylvania.
    Submitted Feb. 12, 1996.
    Filed April 10, 1996.

      Anthony J. Zanoni, Hollidaysburg, for appellant.
    Terry W. Despoy, Altoona, for appellee.
    Before POPOVICH, JOHNSON and OLSZEWSKI, JJ.
   POPOVICH, Judge:

In an issue of first impression, we are asked to decide whether a person, not a parent, having undisputed physical custody of a child has standing to petition the court for child support in the absence of a court order granting such custody. We find that such a custodial person does have standing, and, accordingly, we reverse the lower court.

The record indicates that appellant filed a complaint for child support in the Court of Common Pleas of Blair County. In response, appellee filed preliminary objections. The lower court granted appellee’s preliminary objections, thereby dismissing appellant’s complaint, because it determined that appellant did not have standing to institute a support action on behalf of Paul Diveglia, II. The sole issue raised on appeal by appellant is whether the lower court erred in determining that the absence of a court order awarding him legal custody or primary physical custody of Paul Diveglia, II, precluded him from having standing to bring an action for child support. Appellant contends that because he has actual physical custody of the child, i.e., the child resides with him, he has standing to bring an action for child support on behalf of the child. After a careful review of the record, the parties’ briefs and the applicable law, we reverse and remand for proceedings in accordance with the provisions of this opinion.

The record reveals the following facts: Appellee and his ex-wife had one child, Paul Diveglia, II, who was born on November 20, 1984. While appellee and his ex-wife were going through the process of divorce, their child resided primarily with appellant and his wife, Gloria Larson. Ms. Larson is the child’s paternal aunt. As a result of appellee and his ex-wife being unable or unwilling to care for the child, the lower court entered an order on May 5, 1995, whereby temporary legal and physical custody was given to Ms. Larson. Although the lower court was aware that Ms. Larson was married to appellant, it did not specifically include him in the court order. However, the parties do not dispute that the child resides with both Ms. Larson and appellant in their home, and that appellant is the primary wage earner for his family, including the child at issue. The child has resided with Ms. Larson and appellant for approximately five years.

Following the entry of the temporary custody order, Ms. Larson refused to file a complaint for support. In light of the financial expenses incurred by appellant while providing for the child’s needs, he filed a complaint for support against appellee. As discussed previously, appellee filed preliminary objections, and the lower court dismissed appellant’s complaint. Appellant brought this timely appeal challenging the propriety of the lower court’s granting of appellee’s preliminary objections, resulting in dismissal of appellant’s complaint for lack of standing.

To determine whether appellant has standing in this matter, we must first examine Pennsylvania Rule of Civil Procedure 1910.3. Rule 1910.3 provides, in pertinent part, that “[a]n action [for support] shall be brought ... (2) on behalf of a minor child by a person having custody of the minor, without appointment as guardian ad litem,.... ” Pa.R.C.P. 1910.3(2) (emphasis added). “Custody” is defined as “the legal right to keep, control, guard, care for and preserve a child and in-eludes the terms ‘legal custody,’ ‘physical custody,’ and ‘shared custody.’” Pa.R.C.P. 1915.1(b). See Bratton v. Jury, 435 Pa.Super. 110, 644 A.2d 1259 (1994). “Legal custody” is defined as “the legal right to make major decisions affecting the best interests of a minor child, including but not limited to, medical, religious and educational decisions; ----” Pa.R.C.P. 1915.1(b). “Physical custody” is defined as “[t]he actual physical possession and control of a child.” Pa.R.C.P. 1915.1(b).

Appellant admits that it his wife, Ms. Larson, who has “legal custody” of the child. However, he argues that both he and his wife have “physical custody” of the child and, therefore, he has standing to bring a support action on the child’s behalf. We agree.

The particular question in this case regarding appellant’s “physical custody” of the child is one of first impression in the appellate courts of Pennsylvania. However, we have addressed situations similar to this.

In Trosky v. Mann, 398 Pa.Super. 369, 581 A.2d 177 (1990), we considered whether the Children’s Home of Reading (Home) was entitled to receive support from appellant for the time during which his child resided at the Home. In this case, the appellant did not consent to the child staying at the Home and he never signed any documents to that effect. We held that the determination of a parent’s liability for his child’s upbringing, i.e., support, is to be done on a case-by-case basis. Trosky, 581 A.2d at 180. We further held that a parent has a stringent obligation to support his child aged eighteen or less, and, therefore, the Home was entitled to receive support from appellant for the expenses incurred by it in the performance of services for the minor child. Id. We note that the Home did not have “legal custody” of the child, and the child was not staying at the Home pursuant to a court order.

In Bratton v. Jury, 435 Pa.Super. 110, 644 A.2d 1259 (1994), we considered whether appellee, the maternal grandmother who had physical custody of the children at issue, could legally bring a child support action. In this case, Beaufort County Department of Social Services in North Carolina had “legal custody” of the children. However, the Beaufort County Family Court transferred primary physical custody of the children to appellee, who resided in Pennsylvania. Appellant argued that pursuant to Pennsylvania Rule of Civil Procedure 1910.3, only a person who has “legal custody” of a child can bring a support action. We found appellant’s argument to be meritless and held that a person who has primary physical custody of a child has standing to bring a support action on a child’s behalf. Therefore, the maternal grandmother had standing to bring a support action.

In the case at bar, the lower court acknowledged our decision in Bratton but determined that it was distinguishable from the present case. The lower court held that appellant does not have standing in this matter because, unlike the maternal grandmother in Bratton, he does not have “physical custody” of the child pursuant to a court order. In its opinion, the lower court stated that “[pletitioner herein has no court order for custody. Defacto custody can not supercede written and express court orders.” Trial Court Opinion at 3.

Contrary to the lower court’s holding, we find that neither the language of the statute nor any Pennsylvania appellate decision limits the definition of “physical custody” only to those individuals who have physical custody pursuant to a court order. Clearly, the express language of Rules 1910.3(2) and 1915.1(b) indicates that a party has standing to bring an action for child support on behalf of a child if the party has “physical custody,” which the statute defines as “actual physical possession and control of a child.” We find that “physical custody” means literal actual physical possession and control of a child, and, therefore, the manner in which the child came into the non-parent’s physical possession, i.e., without a court order, is not fatal to the finding of standing. We further note that our literal interpretation of the term “physical custody” is supported by the fact that our legislature has expressly indicated that the term “custody” includes both “legal custody” and “physical custody,” thereby indicating that it did not intend to equate “physical custody” with “legal custody” which requires a court order.

Here, it is undisputed by the parties that appellant has actual physical possession and control of the child in this case. That is, it is undisputed that the child resides with appellant and that appellant is the primary wage earner for the child, providing him -with the necessities of life. Therefore, we find that appellant has “physical custody” of the child and has standing to bring a support action on the child’s behalf.

We note that our literal interpretation of “physical custody” is in keeping with the overriding policy of promoting the best interest of the child.

[We have held that] [a]t common law, the duty of a parent to support his child was conditioned upon a parent receiving love, affection and assistance from that child. Contrary to the common law, today, the duty to support a minor child is absolute.... [I]n awarding child support, we must be cognizant of its purpose which is to promote the best interest of the child.

Oeler v. Oeler, 527 Pa. 532, 594 A.2d 649, 651 (1991). In addition, financial support is an obligation shouldered by a parent and accruing to a child. That is, child support is a benefit for the minor child, not for the recipient custodial adult. Id.

As discussed previously, our decision today, which establishes that appellant has standing to bring a support action on the child’s behalf because he has “physical custody,” furthers this overriding policy of promoting the best interest of the child. Moreover, were we to conclude that appellant does not have standing in this case because of the absence of a court order, we would be holding in essence that appellant, the primary wage earner for his family, could not be reimbursed for the necessities of life which he has provided to the child, necessities of life which are the obligation of appellee to his child. See Trosky, supra (holding that it is a parent’s obligation to provide for the reasonable expenses of raising a child).

For all of the foregoing reasons, we reverse and remand for proceedings in accordance with the provisions of this opinion. Jurisdiction relinquished.

JOHNSON, J. files a Dissenting Opinion.

JOHNSON, Judge,

dissenting.

Because I find that Larson has failed to state a cause of action, I would affirm the trial court’s order which granted Diveglia’s preliminary objections and dismissed the complaint for support. Moreover, I conclude that the Majority has inappropriately expanded the definition of standing to include Larson in this case. Thus, I must respectfully dissent.

Initially, I note with disfavor that the complaint filed in the Blair County Court of Common Pleas is void on its face for failing to state a cause of action. The complaint is a computer generated form that Larson, for the most part, left blank. The only portions of the complaint that have been filled in are the plaintiffs address and birth date, and the defendant/father’s address and place of employment. Larson does not ask for support for the minor child in this form, as the space provided for this purpose was completed as “not applicable.” Thus, pursuant to Rule 206.1, I would dismiss this petition for failure to state the material facts which constitute the grounds for relief.

Moreover, because Larson does not have the legal right to care for this child, he is precluded from petitioning any court for an award of child support. The Majority concludes that, because the child lives in his home, Larson has become vested with physical custody. However, I do not see support for this position in the statute. The rule governing who may bring an action for support states that such an action shall be brought “on behalf of a minor child by a person having custody of the minor____” Pa.R.C.P. 1910.3(2). Further, “custody” is defined as “the legal right to keep, control, guard, care for and preserve a child and includes the terms ‘legal custody,’ ‘physical custody,’ and ‘shared custody’[.]” Pa.R.C.P. 1915.1(b) (Emphasis added).

The Majority baldly asserts that Larson has physical custody of the child. However, he cannot have physical custody if he has no legal right to the actual physical possession and control of this child. I emphasize my belief that an individual cannot vest himself with legal rights regarding a child merely by asserting physical control over that child. In the present case, the court has awarded legal custody to the child’s paternal aunt; namely, Larson’s wife. Thus, pursuant to Rule 1910.3(2), she is the only individual with standing to bring an action for support against the child’s father.

Finally, I disagree with the Majority’s reliance upon Bratton v. Jury, 435 Pa.Super. 110, 644 A.2d 1259 (1994), for the proposition that a person who is not a parent has standing to bring an action for child support. In Bratton, Judge Popovich considered whether a maternal grandmother could petition the court for an order of support to be entered against an out-of-state father. In deciding this issue, however, the court merely asserted that “Clearly, appellee has primary physical custody of the children, and, thus, she has standing to bring a support action on the children’s behalf.” 435 Pa.Super. 110, 113, 644 A.2d 1259, 1261 (1994). The Court does not set forth any analysis to support this conclusion, nor is their resolution of this issue supported by citation to authority. Thus, I do not find this decision to be persuasive. Moreover, I fail to find support for the Majority’s decision in Trosky v. Mann, 398 Pa.Super. 369, 581 A.2d 177 (1990). In Trosky, the Court held that a father must be responsible for the necessary expenses that a minor has incurred prior to emancipation. Thus, because Trosky did not deal with the issue of child support, it is distinguishable from the case before us.

Based upon the foregoing, I would affirm the order that granted Diveglia’s preliminary objections and dismissed the complaint for support. Hence, this dissent.

      . We note with disapproval that appellant’s brief does not include a "Statement of Questions Involved” as is required by P.R.A.P. 2116(a). Generally, questions not presented in the "Statement of Questions Involved” are deemed waived. See Harkins v. Calumet Realty Co., 418 Pa.Super. 405, 614 A.2d 699 (1992). However, the issue raised by appellant in the argument section of his appellate brief suggests the specific issue which we are being asked to review. Therefore, appellant’s failure to comply with Rule 2116(a) does not impede our ability to review the issue, and, accordingly, we will address the merits of his appeal. Savoy v. Savoy, 433 Pa.Super. 549, 641 A.2d 596 (1994).


author: CAVANAUGH, Judge: DEL SOLE, Judge,

text:
    674 A.2d 732
    Dianna L. CABLE, Appellee, v. Emmanuel S. ANTHOU, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 20, 1995.
    Filed April 11, 1996.
    Sanford S. Finder, Washington, for appellant.

      Thomas 0. Schmitt, Pittsburgh, for appellee.
    Before CAVANAUGH, DEL SOLE and BECK, JJ.
   CAVANAUGH, Judge:

Emmanuel S. Anthou appeals from the order entered by the Court of Common Pleas of Washington County granting appellee’s motion for the performance of a second paternity test. We reverse and remand.

On December 30, 1993, appellee filed a petition seeking support for her child born out-of-wedlock on November 4, 1993. After appellant denied paternity, the court ordered the parties to undergo an HLA blood test. Before the scheduled testing date, the court changed the method of paternity testing for all local cases from blood extraction to buccal swab DNA sampling pursuant to 23 Pa.C.S.A. § 4343(b). Thus, the parties underwent buccal swab DNA testing, the results of which excluded appellant from paternity.

Thereafter, the court issued a rule to show cause why the support complaint against appellant should not be dismissed. Appellee filed an answer and new matter alleging that buccal swab testing is scientifically flawed. After stating that appellee “offered very little evidence in support of the proposition that the testing is scientifically flawed,” the trial court concluded that “[buccal swab DNA] testing has been accepted by the scientific community.” The court however granted appellee’s motion for a retest for the following reason:

The minimal intrusiveness of the buccal swab collection method relieves the Court of the necessity of applying the DeAngelo [v. Murray, 536 Pa. 206, 638 A.2d 966 (1994) ] test, since the buccal swab does not implicate Fourth Amendment protections. Once the Fourth Amendment protections are eliminated from the subsequent test analysis, the Court finds that [appellee] is entitled to an order requiring [appellant] to submit to subsequent buccal swab DNA paternity testing.

As such, it held that a “subsequent buccal swab test may be ordered without a showing that the latest test was defective.”

Appellant now presents the following issue for our review:

Did the trial court err in ordering a second buccal swab DNA test when there was no evidence that the first test was defective?

Initially, we recognize that buccal swab genetic testing is a new method of paternity testing. Dr. Clifton Harris, associate director of the Department of Paternity Evaluation at Roche Biomedical Laboratories, Inc., testified at the hearing in this matter that Washington County first utilized buccal swab testing in August, 1993, and that it was the first county in Pennsylvania to adopt this testing procedure. After carefully reviewing the testimony of Dr. Harris, we have deduced the following regarding the buccal swab method of paternity testing:

A buccal swab is a cotton covered or Dacron covered wooden stick which is placed between the teeth and the inner cheek lining. The swab is then gently wiped against the surface of the cheek which loosens cells known as buccal epithelial cells. Those cells contain intact DNA which can be tested. The parties being tested each have four swabs collected which are then used to conduct six or seven tests. Each individual test is a genetic marker “system” and each “system” has a certain number of genetic markers contained in it. The DNA samples from both the alleged father and the child are mixed and used as the control standard. The genetic markers, or bands, of the alleged father, mother, child and the mix are then compared. If after testing all of the systems, two of the systems do not pick up the alleged father’s bands in the child’s bands, then the man is considered excluded from paternity.

The relevant statutory section under which the lower court ordered the paternity tests states the following:

§ 4343. Paternity
(c) Genetic tests.—
(1) Upon the request of any party to an action to establish paternity, the court shall require the child and the parties to submit to genetic tests.
(2) Genetic test results indicating a 99% or greater probability that the alleged father is the father of the child shall create a presumption of paternity which may be rebutted only by clear and convincing evidence that the results of the genetic tests are not reliable in that particular case.

23 Pa.C.S.A. § 4343(c)(1), (2).

We must vacate the trial court’s order subjecting appellant to another paternity test because it is contrary to our Supreme Court’s recent decision in DeAngelo v. Murray, 536 Pa. 206, 638 A.2d 966 (1994). The DeAngelo Court held the following:

Additional testing will not be permitted merely on the basis that different tests reach different results. Rather, this Court requires a showing that the latest test administered was defectively performed.

Id. at 210, 638 A.2d at 968. The Supreme Court did not consider the Fourth Amendment interest in reaching its decision, and we do not see the decision as one based on the nature or intrusiveness of the test, but rather one grounded on the reliability of the prior test.

We find that the record sufficiently supports the trial court’s conclusion that appellee “has not introduced any evidence to support her claim that the test was defective.” Appellee merely argues the possibility of human error in that the DNA samples could have been switched. She attempts to prove this by citing cases in which parties alleged that Roche Biomedical Laboratories, Inc., the same lab which conducted the testing in the instant matter, switched samples or mislabeled containers. As the trial court stated, even if appellee had proven that the lab had switched samples in the past, that would not be evidence that the same happened in this case. Furthermore, appellee’s expert witness, Dr. Harris, testified that Roche Biomedical Laboratories performs approximately 50,000 paternity tests every year and that he was aware of only one case in which personnel had mislabeled containers or switched samples. Dr. Harris continued by testifying that buccal swab testing is more accurate in excluding fathers than the HLA blood test. Dr. Harris stated that even if an HLA test was performed and it returned an opposite result, “In light of the DNA testing that has already been done, I’d still have to say that the man is not the father of the child.” Thus, appellee has failed to prove by a preponderance of the evidence that the initial buccal swab DNA test was defective. (See DeAngelo, supra, holding that “the rule requires a showing by a preponderance of the evidence that the results from the last test administered were inaccurate.”)

We need not and do not decide whether the DNA buccal swab test employed herein is entitled to the same constitutional considerations said to attach to blood extraction tests. See Koleski v. Park, 363 Pa.Super. 22, 525 A.2d 405 (1987). If indeed however, the issue becomes one of Fourth Amendment protections, it is logical to observe that while the DNA test is not as invasive or intrusive as a blood test, it has the same potential for psychological harassment particularly when conducted serially without a showing that prior testing was unreliable.

Order reversed. Remanded. Jurisdiction relinquished.

DEL SOLE, J., files concurring and dissenting opinion.

DEL SOLE, Judge,

concurring and dissenting.

While I agree with my esteemed colleagues that the the trial court erred by awarding Appellee an additional buccal swab paternity test without proof by a preponderance of the evidence that the initial test was defective, I must dissent from the Majority’s interpretation of DeAngelo v. Murray, 536 Pa. 206, 638 A.2d 966 (1994).

The Majority states that the Supreme Court did not consider the Fourth Amendment interest in reaching its decision in DeAngelo. DeAngelo cites Koleski v. Park, 363 Pa.Super. 22, 525 A.2d 405 (1987), which stated:

The Fourth Amendment to the Constitution of the United States expressly provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ...” Compulsory administration of a blood test falls within the scope of the Amendment. Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966). The Fourth Amendment’s “proper function is to constrain, not against all intrusions [into the body for blood] as such, but against intrusions which are not justified in the circumstances.” Id., at 768, 86 S.Ct. at 1834. (Footnote omitted).

Koleski, 363 Pa.Super. at 29, 525 A.2d at 408.

Furthermore, we held in Koleski that “constitutional rights implicated in the extraction of blood samples and resolution of questions of paternity require that the moving party show by a preponderance of the evidence that the results of the first tests were inaccurate before a second blood extraction can be ordered.” Id., 525 A.2d at 406. We concluded that requiring a hearing for a determination on the inaccuracy of the first blood test prior to an order for a second blood test extraction protects the parties’ Fourth Amendment rights and limits the potential for harassment. Koleski. This ruling was not premised on the intrusiveness of the procedure, but on the constitutional protection to be secure in one’s person.

Since DeAngelo relied on Koleski, our Supreme Court applied Fourth Amendment protections in setting the standard for when additional paternity tests can be ordered. The court required a showing of defective testing before subjecting someone to another test. Given that standard, I conclude that additional swab samples are constitutionally prohibited and cannot be compelled absent a showing the initial test was inaccurate. Therefore, I concur in the result.

      . While we acknowledge that the DeAngelo Court cites to Koleski v. Park, 363 Pa.Super. 22, 525 A.2d 405 (1987), which held that the "compulsory administration of a blood test falls within the scope of the Fourth Amendment,” we note that the DeAngelo Court does not articulate the Fourth Amendment interest in holding that, before a second test may be administered, it must be proven that the prior test was defectively performed. Furthermore, neither DeAngelo nor Koleski involve the compulsory administration of a buccal swab DNA test, but rather, that of a blood test. Therefore, our Supreme Court has not decided whether the buccal swab test implicates constitutional protections and, as such, we decline at this time to conclude that the additional performance of such tests are constitutionally prohibited.