author: ROWLEY, Judge:

text:
    582 A.2d 1380
    William SEATON, Appellant, v. EAST WINDSOR SPEEDWAY, INC., Joseph Scarmadella, Lindy Vicari, Ken Brightbill, David Sharman, and John Does.
    Superior Court of Pennsylvania.
    Submitted Oct. 9, 1990.
    Filed Dec. 7, 1990.

      Kevin J. Kelleher, Bethlehem, for appellant.
    Gail L. O’Neal, Harrisburg, for East Windsor & Yicari, appellees.
    Bernard R. Gerber, Reading, for Brightbill, appellee.
    David M. Kozloff, Wyomissing, for Sharman & Does, appellees.
    Before ROWLEY, BECK and BROSKY, JJ.
   ROWLEY, Judge:

On June 27, 1980, appellant, William Seaton, a member of the pit crew for race car driver David Kelley, was injured when a race car driven by Ken Brightbill crashed into a guardrail. Prior to entering the pit, appellant had signed a Release and Waiver of Liability and Indemnity Agreement (“Release”). Appellant commenced a civil action against East Windsor Speedway, Inc., the corporation owning the racetrack; Joseph Scarmadella, a promoter of the East Windsor Raceway; Lindy Vicari; David Sharman, the owner of the car that crashed; Ken Brightbill, the driver of the car that crashed; and various John Does, seeking damages for personal injuries he suffered as a result of the crash. Appellee, Lindy Vicari, filed an answer containing new matter and alleged that the Release which appellant had signed released Vicari of all liability. Appellant replied to the new matter claiming that he had not read the release nor understood what he was signing. Vicari filed a motion for summary judgment, arguing that appellant could not, as a matter of law, establish a prima facie case against Vicari. The trial court granted summary judgment in favor of Vicari, and appellant filed the instant appeal.

Upon review of an order granting a motion for summary judgment, we view the evidence and all inferences reasonably drawn therefrom in a light most favorable to the non-moving party. Hower v. Whitmak Assoc., 371 Pa.Super. 443, 445, 538 A.2d 524, 525 (1988), alloc. denied, 522 Pa. 584, 585, 559 A.2d 527, 528 (1989). A trial court’s order granting summary judgment will not be reversed unless the trial court has committed an error of law or a clear abuse of discretion. Ackler v. Raymark Indus., Inc., 380 Pa.Super. 183, 185, 551 A.2d 291, 292 (1988). In the instant case, appellant alleges that the trial court abused its discretion and committed an error of law in granting the motion for summary judgment, because a genuine issue remains as to a material fact. Having carefully reviewed the record and considered the arguments of counsel, we affirm.

Appellant argues that granting the motion for summary judgment was improper because whether he knowingly and voluntarily signed the release is a question of fact for the jury. Appellant further contends that the release violates public policy and therefore is ineffective and unenforceable. We address this latter argument first.

Appellant’s argument, that the Release violates public policy, is without merit. Contracts against liability, although not favored by courts, violate public policy only when they involve a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals. Leidy v. Deseret Enterprises, Inc., 252 Pa.Super. 162, 167-68, 381 A.2d 164, 167 (1977) (citations omitted). The Release in the instant case involves not a matter of public interest but, rather, a private agreement between individuals. Moreover, courts of this Commonwealth have upheld releases similar to the one signed by appellant as not violating this Commonwealth’s public policy.

An agreement exculpating the sponsor of the race and the owner of the track does not contravene public policy. It is a contract between individuals pertaining to their private affairs and does not impair generally the rights of members of the public.

Valeo v. Pocono Intern. Raceway, Inc., 347 Pa.Super. 230, 500 A.2d 492 (1985). See also, Talbert v. Lincoln Speedway, 33 Pa.D. & C. 3d 111 (1984); Grbac v. Reading Fair Co., Inc., 521 F.Supp. 1351, 1355 (W.D.Pa.1981), aff'd, 688 F.2d 215 (3d Cir.1982). The Release in the instant case does not violate public policy.

Appellant also contends that whether he knowingly and voluntarily signed the release is a question of fact for the jury. This contention is likewise without merit. Appellant signed the release voluntarily. He was not compelled to sign it, but rather chose to sign it in order to go into the pit. He did not depend upon working at the racetrack for his livelihood. In fact, he worked full-time at Coplay Cement. (Appellant’s Deposition, 5/8/89 at 7).

Appellant also knowingly signed the release. Appellant admits that he signed the Release.

“I signed this. I don’t know what they had up here, though. I never read that, never did. All the years I’ve been going to the races, I never read that.”

(Appellant’s Deposition, 5/8/89 at 46). Appellant further testified that he had signed similar pieces of paper without reading them at every race where he worked in the pit. (Appellant’s Deposition 5/8/89 at 47). Appellant contends, however, that he was not told he was signing a release, but rather believed he was signing a sign up sheet to get into the pit.

In the absence of fraud or a relation of trust and confidence between the parties, a releasor can ordinarily not avoid the effect of a release upon the ground that at the time he signed the paper he did not read it or know its contents, but relied on what another said about it.

66 Am.Jur.2d Release § 15 (1973). Further, the bold-typed letters “Release and Waiver of Liability and Indemnity Agreement” at the top of the sheet quickly notify the signer that the paper is, in fact, a release.

Appellant also argues that, due to the long line of people behind him, he did not have time to read the Release. “His explanation that he did not read it does not, in the absence of fraud or a confidential relationship, extricate him from its operation.” Talbert, at 114. See also, 66 Am.Jur.2d Release § 15 (1973); Ackler v. Raymark Indus., Inc., 380 Pa.Super. 183, 190, 551 A.2d 291, 294-95 (1988); Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 469 A.2d 563 (1983). Appellant, unlike the plaintiff in Talbert, makes no allegation that the Release was folded or otherwise hidden so as to constitute fraud.

Relying on Zimmer v. Mitchell and Ness, 253 Pa.Super. 474, 478, 385 A.2d 437, 439 (1978) (exculpatory agreements are valid if they do not violate public policy, are between individuals and relate to their private affairs, and each party is a free bargaining agent), aff'd., 490 Pa. 428, 416 A.2d 1010 (1980), the trial court correctly concluded that the Release in the instant case was executed voluntarily and was valid and binding on appellant. Since appellant was bound by the terms of the Release, the trial court properly granted summary judgment in favor of Lindy Vicari.

Summary judgment affirmed.

      . "RELEASE AND WAIVER OF LIABILITY AND INDEMNITY AGREEMENT
      IN CONSIDERATION of being permitted to enter for any purpose any RESTRICTED AREA (herein defined as including but not limited to the racing surface, pit areas, infield, burn out area, approach area, shut down area, and all walkways, concessions and other areas appurtenant to an area where any activity related to the event shall take place), or being permitted to compete, officiate, observe, work for, or for any purpose participate in any way in the event, EACH OF THE UNDERSIGNED, for himself, his personal representatives, heirs, and next of kin, acknowledges, agrees and represents that he has, or will immediately upon entering any of such restricted areas, and will continuously thereafter, inspect such restricted areas and all portions thereof which he enters and with which he comes in contact, and he does further warrant that his entry upon such restricted area or areas and his participation, if any, in the event constitutes an acknowledgement that he has inspected such restricted area and that he finds and accepts the same as being safe and reasonably suited for the purposes of his use, and he further agrees and warrants that if, at any time, he is in or about restricted areas and he feels anything to be unsafe, he will immediately advise the officials of such and will leave the restricted areas:
      1. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the promoter, participants, racing association, sanctioning organization or any subdivision thereof, track operator, track owner, officials, car owners, drivers, pit crews, any persons in any restricted area, promoters, sponsors, advertisers, owners and lessees of premises used to conduct the event and each of them, their officers and employees, all for the purposes herein referred to as "releasees”, from all liability to the undersigned, his personal representatives, assigns, heirs and next of kin for any and all loss or damage, and any claim or demands therefor on account of injury to the person or property or resulting in death of the undersigned, whether caused by the negligence of the releasees or otherwise while the undersigned is in or upon the restricted area, and/or, competing, officiating in, observing, working for, or for any purpose participating in the event;
      2. HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD HARMLESS the releasees and each of them from any loss, liability, damage, or cost they may incur due to the presence of the undersigned in or upon the restricted area or in any way competing, officiating, observing, or working for, or for any purpose participating in the event and whether caused by the negligence of the releasees or otherwise.
      3. HEREBY ASSUMES FULL RESPONSIBILITY FOR AND RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE due to the negligence of releasees or otherwise while in or upon the restricted area and/or while competing, officiating, observing, or working for or for any purpose participating in the event.
      EACH OF THE UNDERSIGNED expressly acknowledges and agrees that the activities of the event are very dangerous and involve the risk of serious injury and/or death and/or property damage. EACH OF THE UNDERSIGNED further expressly agrees that the foregoing release, waiver, and indemnity agreement is intended to be as broad and inclusive as is permitted by the law of the Province or State in which the event is conducted and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect.
      THE UNDERSIGNED HAS READ AND VOLUNTARILY SIGNS THE RELEASE AND WAIVER OF LIABILITY AND INDEMNITY AGREEMENT, and further agrees that no oral representations, statements or inducements apart from the foregoing written agreement have been made.”

      . In his complaint, appellant alleged that Vicari was the "owner, operator, promoter, lessor, lessee, and/or agent of the Defendant, East Windsor Speedway, Inc.” (Appellant’s complaint, at 2). In his answer, new matter and crossclaim, Vicari denied that he had been the "owner, operator, promoter, lessor, lessee, and/or agent of the defendant, East Windsor Speedway, Inc.” and claimed that he had “acted only as a President and employee of Racing Sanctioning Corporation of America.” Whether or not Vicari had been a promoter was a matter of dispute in appellant’s and Vicari’s depositions.

      . Appellant was not a novice at attending races. Appellant’s deposition clearly indicates that appellant had worked in the pit for eight years prior to the accident (Appellant’s Deposition, 5/8/89 at 30), had witnessed many accidents including five "real bad ones” (Appellant’s Deposition, 5/8/89 at 40), and had seen both cars (Appellant’s Deposition, 5/8/89 at 40) and parts of cars (Appellant’s Deposition, 5/8/89 at 41) leave the track. Appellant testified that accidents occurred nearly every time a heat race was run (Appellant’s Deposition, 5/8/89 at 44) and every third or fourth feature (Appellant’s Deposition, 5/8/89 at 44).


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    582 A.2d 1384
    Sylvia BUTLER, Appellant, v. ROLLING HILL HOSPITAL and Maria Limberakis, D.O., K. Niki Cole, M.D.
    Superior Court of Pennsylvania.
    Argued Oct. 24, 1990.
    Filed Dec. 10, 1990.

      Susan M. Hammann, Havertown, for appellant.
    James B. Jordan, Philadelphia, for Rolling Hills, appellees.
    Before CAVANAUGH, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

This is an appeal from a December 30, 1989 Order granting appellee/Rolling Hill Hospital’s motion for summary judgment. The relevant facts are appellant had a laparoscopic tubal ligation performed on November 19, 1981 for the purpose of preventing further pregnancies. Thereafter, appellant became pregnant and delivered a healthy, albeit unwanted, baby boy on May 8, 1984. Appellant instituted a cause of action against Rolling Hill Hospital and K. Niki Cole, M.D., for failure to properly perform a tubal ligation. The suit also alleged negligence on the part of Maria Limberakis, D.O., for failure to properly diagnose appellant’s pregnancy in time for her to obtain a legal abortion.

On January 13, 1988, Limberakis filed a motion for summary judgment on her own behalf which was granted. Appeal was taken and this Court affirmed in Butler v. Rolling Hill Hospital [Butler I], 382 Pa.Super. 330, 555 A.2d 205 (1989). We held that appellant’s cause of action in “seeking damages from Dr. Limberakis on the theory that, but for Dr. Limberakis’ failure to diagnose appellant as being pregnant, appellant would have been able to legally abort the child and would have been able to avoid bearing an unplanned child” was barred by 42 Pa.C.S. § 8305. Section 8305 expressly provides that there is no cause of action “based on a claim that, but for an act ... of the defendant, a person once conceived would not or should not have been born ... [or] aborted.” Id. This Commonwealth’s Supreme Court denied allowance of appeal in Butler v. Rolling Hill Hospital, 522 Pa. 623, 564 A.2d 915 (1989). On December 30, 1989, appellee Rolling Hill Hospital filed a motion for summary judgment. The trial court, applying the “but for” analysis of Butler I, granted summary judgment.

In the case sub judice, appellant alleges negligence, breach of contract and breach of warranties on the part of Rolling Hill Hospital and Dr. K. Niki Cole, M.D. The damages which appellant seeks are for the severe anxiety related to the pregnancy, expenses for medical care and treatment, pain and suffering and incapacity related to pregnancy, loss of earnings and earning capacity as well as the future financial expense of rearing the unwanted child.

The requested damages in this suit are identical to those requested in Mason v. Western Pennsylvania Hospital, 499 Pa. 484, 453 A.2d 974 (1982). Our Supreme Court, in a case factually on point, recognized this limited cause of action stating:

I. The Superior Court properly determined that the complaint alleges facts which, if proven, would entitle the plaintiff to relief under basic principles of the law of contract and tort. The alleged breach of warranties and negligent performance of the sterilization operation are asserted to be a direct cause of Mrs. Mason’s pregnancy. It follows, therefore, that the costs associated with the pregnancy and delivery would be within both the contemplation of the parties to an express or implied warranty and the range of reasonably foreseeable consequences of the negligent performance of the surgical procedure. See Speck v. Finegold, 497 Pa. 77, 439 A.2d 110 (1981). Thus, if the plaintiff sustains her burden of proof, she is entitled to recover all medical expenses and lost wages related to pre-natal care, delivery, and post-natal care, as well as compensation for pain and suffering incurred during the pre-natal through post-natal periods.
II. In addition to these costs associated with pregnancy and childbirth, the complaint seeks to recover alleged damages for emotional distress and the expenses of raising the child until the “age of maturity.” We agree with the majority of the Superior Court and the majority of jurisdictions which have considered the issue that the financial and emotional costs of raising ,a healthy child are not compensable. In light of this Commonwealth’s public policy, which recognizes the paramount importance of the family to society, we conclude that the benefits of joy, companionship, and affection which a normal, healthy child can provide must be deemed as a matter of law to outweigh the costs of raising that child. As was stated twenty-five years ago by the Court of Common Pleas of Lycoming County,
“Many people would be willing to support this child were they given the right of custody and adoption, but according to plaintiff’s statement, plaintiff does not want such. He wants to have the child and wants the doctor to support it. In our opinion to allow such damages would be against public policy.”

Shaheen v. Knight, 11 Pa.D. & C.2d 41, 46 (1957). Mason, supra, 499 Pa. at 486-87, 453 A.2d at 975-76 (footnotes omitted).

As in Hatter v. Landsberg, 386 Pa.Super. 438, 563 A.2d 146, 150 (1989), with exception of the claim for the future financial expenses of rearing the unwanted child, we find the appellants properly pleaded and alleged facts which establish a cause of action falling squarely within the Supreme Court’s holding in Mason.

In addition, we find the trial court to have erred in its application of Butler I to the case sub judice. The parties and issues presented in Butler I are different than those presented here. In Butler I, appellant sued her physician for failing to diagnose her pregnancy alleging “but for” this neglect, appellant would have been able to seek a legal abortion. Said cause of action is specifically prohibited by the clear mandate of 42 Pa.C.S. § 8305(a).

Here, there is a different theory of recovery. Appellant seeks damages from different parties flowing from an unsuccessful tubal ligation and laparoscopic procedure. The trial court held that 42 Pa.C.S. § 8305 Actions for wrongful births and wrongful life, bars this cause of action. This section provides:

§ 8305. Actions for wrongful birth and wrongful life
(a) Wrongful birth.—There shall be no cause of action or award of damages on behalf of any person based on a claim that, but for an act or omission of the defendant, a person once conceived would not or should not have been born. Nothing contained in this subsection shall be construed to prohibit any cause of action or award of damages for the wrongful death of a woman, or on account of physical injury suffered by a woman or a child, as a result of an attempted abortion. Nothing contained in this subsection shall be construed to provide a defense against any proceeding charging a health care practitioner with intentional misrepresentation under the act of October 5, 1978 (P.L. 1109, No. 261), known as the Osteopathic Medical Practice Act, the act of December 20, 1985 (P.L. 457, No. 112), known as the Medical Practice Act of 1985, or any other act regulating the professional practices of health care practitioners.
(b) Wrongful life.—There shall be no cause of action on behalf of any person based on a claim of that person that, but for an act or omission of the defendant, the person would not have been conceived or, once conceived, would or should have been aborted.
(c) Conception.—A person shall be deemed to be conceived at the moment of fertilization.

In Hatter, supra, we held that section 8305 does not bar this action nor does it bar damages for appellant’s own pain and suffering, medical expenses and wage loss resulting from an improperly performed contraceptive procedure. Id., 386 Pa.Superior Ct. at 445-47, 563 A.2d at 150-51.

In reversing the trial court and recognizing this cause of action, we state that nothing in this Opinion changes or amends the statutory and case law which bar appellant’s recovery for costs associated with raising and rearing the unwanted child. A person is not damaged when rewarded with the benefit of a healthy child.

Order reversed and case remanded for trial in accordance with this Opinion.

Jurisdiction relinquished.

      . We point out that in grappling with this divisive issue, five members of the Supreme Court agreed with part I with two dissenting opinions. Four members of the court agreed with the holding of part II with two dissenting opinions.


author: JOHNSON, Judge:

text:
    582 A.2d 1386
    In re Change of Name of Zachary Thomas Andrew GRIMES To Zachary Thomas Andrew Grimes Palaia. Appeal of David GRIMES.
    Superior Court of Pennsylvania.
    Argued Oct. 30, 1990.
    Filed Dec. 17, 1990.

      Samuel H. Pond, Philadelphia, for appellant.
    Stuart P. Winneg, Philadelphia, for participating party.
    Before McEWEN, MONTEMURO and JOHNSON, JJ.
   JOHNSON, Judge:

This is an appeal from the Decree for Change of Name issued on February 28, 1990 and docketed on March 30, 199d. We affirm.

Jane Palaia (Mother) and David Grimes (Father) were married in May of 1982. They separated in August of 1983. The child in question, Zachary Thomas Andrew PalaiaGrimes (Zachary), was born on May 17, 1984. By order of October 3, 1986 Mother received primary custody of Zachary and Father received partial custody. About the same period Father was ordered to pay support and provide medical coverage for Zachary, for which Father fell in arrears. Finally a wage attachment was issued against Father on December 18, 1989; at the time of the hearing Father was apparently current with his payments. N.T., February 15, 1990 at 5. Mother and Father divorced in 1987, after which Mother married Glen Palaia. Zachary has always lived with his Mother and Glen. Mother and Glen have had two children, and Mother is again pregnant.

On December 22, 1989 Mother, on behalf of Zachary, filed a Petition for Change of Name with the Court of Common Pleas. Mother’s petition explained that Zachary resides with Mother, Glen and his two younger step-siblings and that he perceives, rightfully, that he is part of this family. Therefore, the difference between his surname, Grimes, and that of the rest of the family, Palaia, causes Zachary undue distress and confusion. Mother recognized the bond between Zachary and Father and asked, on behalf of Zachary, that his surname be changed to Grimes-Palaia. Father objected to the name change on the basis that he, the biological father, takes an active part in Zachary’s life. Following argument, the court granted the petition on February 28, 1990, with one modification. Instead of changing the name to Grimes-Palaia, the court changed the name to Palaia-Grimes, to which Mother consented. As the court explained at the hearing, he did so to relieve Father’s distress; in this way, Father’s name is still last. This order was docketed, along with the trial court’s opinion, on March 30, 1990. The court explained his decision:

This change will serve the best interest of the minor, which is the sole criteria on which the Court’s decision can rest. It will provide him with a sense of true family relationship with his step-father and half brothers while confirming his relationship with his father and his paternal relatives. It will reinforce the minor’s relationship with his half brothers all of whom live with their mother and Mr. Palaia.....
We note the affection which the natural father has for his son and we respect as legitimate his desire to maintain his name to that of his son. This order does not abridge that respect in any fundamental sense.

Opinion, Samuel M. Lehrer, J., February 28, 1990. On March 30, 1990, the day the order was docketed, Father filed a notice of appeal to this court.

On appeal Father alleges that the trial court abused its discretion by changing Zachary’s name when there was evidence that Father was supporting the child, had partial custody and was not guilty of misconduct, and where there was no evidence that the name change was in Zachary’s best interests. Husband’s arguments fail. First, contrary to his assertion, the court heard evidence at the hearing of February 15, 1990, at which both Mother and Father testified. Father, though not the parent with primary custody, has standing to contest a name change petition. Petition of Schidlmeier by Koslof 344 Pa.Super. 562, 496 A.2d 1249 (1985). Nevertheless, the child’s best interests unquestionably must control a proceeding for a name change, in which the court must carefully evaluate all the relevant factual circumstances to determine if the petitioning parent has established that the change is in the child’s best interests. Id., 344 Pa.Super. at 569-570, 496 A.2d at 1253.

The trial court has wide discretion in granting or refusing a name change, and our scope of review is limited to the question of whether the evidence is sufficient to support the decision reached by the court. In re Richie by Boehm, 387 Pa.Super. 401, 564 A.2d 239 (1989). Father suggests that the court abused its discretion by disregarding Father’s role in Zachary’s life. To the contrary, the court took Father’s role into consideration, recognizing the parent/child bond.

At the hearing, Mother testified that, because Zachary’s surname is different from that of the family, he feels left out. Mother explained that Zachary became aware of his name discrepancy when he entered nursery school: “If he ever got lost or anything he would have to ask for Jane Palaia (Mother) and he didn’t have my last name. And that’s when he started to express his wishes.” N.T., February 15, 1990 at at 10-11. Mother repeatedly told the court that she respected Father’s bond with Zachary, thus her proposal for a hyphenated name. Father offered no evidence that the name change would not be in Zachary’s best interests, or that it would impair his relationship with Zachary. Rather, he attempted to inject irrelevant testimony having to do with his dissatisfaction with the custody/visitation arrangement.

Father offers no authority, nor do we find any, in support of his position that simply because he pays support and has not been guilty of misconduct, Zachary’s name may not be changed. Courts take these factors into consideration in determining the child’s best interests, and in a given factual situation one of these considerations may be dispositive of a child’s best interests, see Petition of Christjohn, 286 Pa.Super. 112, 428 A.2d 597 (1981) (name change granted), but in no case has a court decided that a name may not be changed because the father pays support and has committed no misconduct. Nor is Zachary’s young age grounds in itself to deny a name change if it is otherwise in Zachary’s best interests. Id.

After careful consideration, we conclude that the court committed no abuse of discretion in deciding that Zachary’s best interests required a surname change from “Grimes” to “Palaia-Grimes.”

Order affirmed.


author: HOFFMAN, Judge:

text:
    583 A.2d 1
    COMMONWEALTH of Pennsylvania v. Timothy MOORE, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 3, 1990.
    Filed Dec. 3, 1990.
    Petition for Allowance of Appeal Denied May 9, 1991.

      Robert B. Evanick, Public Defender, York, for appellant.
    Gerald A. Lord, Asst. Dist. Atty., York, for Com., appellee.
    Before OLSZEWSKI, BECK and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment of sentence for involuntary manslaughter. Appellant raises two claims regarding the discretionary aspects of the sentence. We affirm.

On October 4, 1987, appellant was arrested and charged with criminal homicide in connection with the shooting death of Richard Joseph Sconfienza. On October 20, 1988, following a jury trial, appellant was convicted of involuntary manslaughter. Timely post-verdict motions were filed and denied, and on April 24, 1989 appellant was sentenced to a term of imprisonment of one-to-two years. Appellant filed a Motion to Reconsider Sentence on May 4, 1989 which was denied. This timely appeal from the judgment of sentence followed.

Appellant raises two claims concerning the discretionary aspects of the sentence imposed. We note preliminarily that because appellant does not challenge the legality of his sentence, his right to appeal is governed by 42 Pa.C.S.A. § 9781(b). The requirements of Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) therefore apply. Appellant has failed to include in his brief “a concise statement of the reasons relied upon for allowance of appeal” as required by Rule 2119(f) and Tuladziecki. However, in Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (en banc), this Court held that an appellant's failure to comply with Rule 2119(f) and Tuladziecki is a waivable procedural violation where appellee has failed to object. Id., 367 Pa.Superior Ct. at 519, 533 A.2d at 138; see also Commonwealth v. Hall, 382 Pa.Super. 6, 554 A.2d 919 (1989). Here, the Commonwealth has failed to object to the defect in appellant’s brief. Accordingly, we may proceed to “determine, in [our] own discretion, whether there is a substantial issue requiring [us] to review the discretionary aspects of the sentence imposed by the trial court.” Commonwealth v. Krum, supra 367 Pa.Super. at 519, 533 A.2d at 138.

Appellant first argues that the trial court abused its discretion because it abdicated its sentencing responsibility by adopting the recommendations of the Probation Department in imposing sentence. Specifically, appellant objects to the fact that the trial court ordered that the pre-sentence report be submitted with a standard sentencing recommendation prepared by the Probation Department.

Pennsylvania has a system of indeterminate sentencing, which implicitly adopts the philosophy of individualized sentencing. See Commonwealth v. Devers, 519 Pa. 88, 91-92, 546 A.2d 12, 13 (1988); see also Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). The trial judge is given broad discretion within this system to determine the proper sentence to impose. See Commonwealth v. Devers, supra; Commonwealth v. Martin, supra. We have emphasized that a trial court must not delegate its sentencing decision to any person or group. See Commonwealth v. Bastone, 321 Pa.Super. 232, 237-38, 467 A.2d 1339, 1342 (1983); see also Commonwealth v. Knighton, 490 Pa. 16, 415 A.2d 9 (1980). Instead, “sentencing must result both from a consideration [by the trial judge] of the nature and circumstances of the crime as well as the character of the defendant.” Commonwealth v. Devers, supra 519 Pa. at 92, 546 A.2d at 13. A claim that the court abdicated its sentencing function raises a colorable argument that the sentence imposed was an abuse of discretion. Accordingly, appellant’s claim presents a substantial question for our review, and we grant allowance of appeal as to this issue.

On the merits, after carefully reviewing the record, we are convinced that the trial court did not abdicate its sentencing responsibility to the Probation Department in the instant case. Initially, we should note that in the past this Court has emphasized that there is no reason for a probation office to make a sentencing recommendation. See Commonwealth v. Bastone, supra 321 Pa.Super. at 238, 467 A.2d at 1342. However, the fact that this Court does not look with favor upon the probation office recommending sentences does not mean that they are prohibited from doing so. Our central concern is to insure that the trial judge remains the final arbiter of the sentence imposed; the trial judge must not relinquish this responsibility to any other person or group. Here, it is apparent that the trial judge employed the sentencing recommendation of the Probation Department as but one of many factors it considered in sentencing appellant. For example, during the sentencing hearing, the court noted that the “Probation Department doesn’t impose the sentence. The Court imposes the sentence.” N.T. March 20, 1989 at 2. Furthermore, at the same hearing, the court noted that “[i]t’s still the Court that has to impose sentence, no matter what the Probation Department recommends or doesn’t recommend. And I have no problem with either following or deviating from their recommendation. I feel it is my function to impose sentence.” Id. at 3. Finally, during the hearing on appellant’s petition to reconsider sentence, the court stated:

... [0]n behalf of the Court, [the Probation Department] conduces] these presentence investigations, they give us all of the information that they gather during the course of the investigation, they make recommendations which we may accept or modify or reject as we see fit; and the fact that we accept the recommendation in a fairly high percentage of the cases means simply one of a number of things, that we have confidence in their recommendations, that we would have reached the same conclusion based upon an independent investigation, or most likely that in sentencing a Defendant we are constrained by the ranges of sentences that are set forth in the Crimes Code, and even more particularly in the sentencing guidelines that all of us have to adhere to.

N.T. May 22, 1989 at 24.

These statements indicate that the trial judge did not delegate his sentencing responsibility to the Probation Department. Accordingly, appellant’s first argument is merit-less.

Appellant’s next sentencing claim is that the trial court erred in ordering him to submit to a pre-sentence interview. Appellant argues that he should not be the source of the information that was used in sentencing him, and, to prevent that from occurring, he should be allowed to exercise his fifth amendment right not to incriminate himself. Appellant misconstrues the scope of the fifth amendment privilege.

The fifth amendment privilege against self-incrimination protects any individual from being officially coerced to give testimonial evidence which would be incriminating in the sense of furnishing “a link in the chain of evidence needed to prosecute.” See 3 W. LaFave & J. Israel, Criminal Procedure § 23.4 at 26 (1984) (quoting Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951)). In Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983), the Supreme Court of Pennsylvania found that “the privilege against self-incrimination in its pure form has no direct application to a determination of the proper sentence to be imposed____” Id., 502 Pa. at 499, 467 A.2d at 300. In so holding, that Court reasoned that the “sentencing phase” of the trial has a different purpose than the “guilt phase.” Id.

Here, the trial court directed, over counsel’s objection, that appellant cooperate with the Probation Department so that they would be able to prepare a presentence report. Even if we were to assume that the court’s order amounted to compulsion, we fail to see how the information appellant revealed incriminated him in any way.

Mr. Moore, I don't know very much about you, and before I impose sentence in a case like this, I want to have a presentence investigation, and a presentence report. I think it’s to your benefit that the Court have all the information available to it, or that can reasonably be made available to it.
And while I understand your attorney’s position, and he has expressed this to me in the past, he has expressed it to me in this case, I want a presentence investigation before I impose sentence. And I don’t intend to deviate at this point from the method that we use to have a presentence report placed before the Court before sentence is actually delivered.
I hereby direct that you cooperate with the Probation Department, that you talk to the Probation Officer for the purpose of having a presentence report prepared____

We are aware that there are certain circumstances in which a defendant’s fifth amendment right may be burdened indirectly if he is compelled to divulge information that could incriminate him. Cf. Commonwealth v. Allen, 340 Pa.Super. 189, 489 A.2d 906 (1985). In this case, however, such a situation is not presented. Appellant therefore has failed to show that his constitutional rights were violated or that he was prejudiced by this procedure. Accordingly, we conclude that the trial court did not err in ordering appellant to submit to a presentence interview.

For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . Appellant also contends that (1) the evidence was insufficient to support the verdict because the Commonwealth failed to disprove his self-defense claim; and (2) the trial court erred in failing to give a cautionary instruction following a prejudicial argument offered by the Commonwealth. The trial court has adequately addressed and properly disposed of these contentions in its opinion. With regard to appellant’s second contention, we note also that rulings on allegedly prejudicial comments are within the trial court's discretion, and our review is limited to determining whether the trial court abused that discretion. See Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968). We have reviewed the record with this standard in mind, and determined that no such abuse of discretion occurred.

      . In light of the central importance of pre-sentence reports, see Commonwealth v. Devers, supra, we are satisfied that this claim, which calls into question the method for preparing the presentence report, presents a substantial question for our review.

      . At sentencing the trial judge expressed his reasoning for directing appellant to cooperate with the Probation Department as follows:


author: WIEAND, Judge: HUDOCK, Judge,

text:
    583 A.2d 4
    Lisa M. VINCLER, Appellee, v. Robert P. VINCLER, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 16, 1990.
    Filed Dec. 10, 1990.

      Gregory Whitney, Pittsburgh, for appellant.
    June S. Schulberg, Pittsburgh, for appellee.
    Before ROWLEY, WIEAND and HUDOCK, JJ.
   WIEAND, Judge:

In this appeal we are asked to review a trial court order which dismissed a petition to strike or open a judgment which had been confessed pursuant to the terms of a property settlement agreement. The principal issue is whether the judgment confessed was authorized by the parties’ agreement.

In anticipation of divorce, Robert P. Vincler and Lisa M. Vincler, husband and wife, entered into a written agreement which purported to settle all support and property claims between the parties. Included in the agreement was a provision requiring husband to pay alimony for thirty (30) months at the rate of fifteen hundred ($1,500.00) dollars per month. Paragraph 10 provided further as follows:

In the event of any default of his obligations, Husband hereby authorizes any attorney to confess judgment against him in any jurisdiction which is proper. This confession of judgment is not to be considered as an exclusive remedy, but shall be used in addition to any and all other available remedies under the law.

When husband failed to make the first three payments, wife caused judgment to be confessed against husband for four thousand, five hundred ($4,500.00) dollars. When husband also failed to make the fourth payment, wife caused judgment to be confessed against husband for forty thousand, five hundred ($40,500.00) dollars, the entire remaining balance owed as alimony during the thirty (30) month period. A motion to strike/open the judgment was filed and depositions were taken. The trial court denied all relief. This prompted husband’s appeal to this Court.

“Where the instrument contains a warrant of attorney to confess judgment, the warrant must be definite, clear and explicit.” 11 Std.Pa.Prac., Judgments by Confession, § 67:16. See: Solazo v. Boyle, 365 Pa. 586, 588, 76 A.2d 179, 180 (1950); Beers v. Fallen Timber Coal Co., 307 Pa. 261, 264, 161 A. 409, 410 (1932). A judgment by confession “is not to be foisted upon anyone by implication or by a nonspecific reference.” 11 Std.Pa.Prac., Judgments by Confession, § 67.16. See: Centennial Bank v. Germantown-Stevens Academy, 277 Pa.Super. 134, 137, 419 A.2d 698, 699 (1980). A warrant of attorney to confess judgment must be strictly construed and must be exercised in strict accordance with its terms. Kline v. Marianne Germantown Corp., 438 Pa. 41, 45, 263 A.2d 362, 364 (1970). “If the confessed judgment includes an item not authorized in the warrant, the judgment is void in its entirety and must be stricken.” 11 Std.Pa.Prac., Judgments by Confession, § 67:16. See: W.E. Heller & Co. v. Lombard Corp., 423 Pa. 333, 223 A.2d 716 (1966); Housing Mortgage Corp. v. Tower Development & Investment Corp., 402 Pa. 388, 167 A.2d 146 (1961).

The agreement in the instant case contains no acceleration clause. The warrant of attorney authorizes a confession of judgment against appellant “in the event of any default of his obligations.” The warrant does not specifically define the amount for which judgment is to be entered in the event of default. Whether judgment is to be entered for the amount which is in default or for the full amount of the alimony to be paid during the thirty month period does not appear. When the warrant to confess judgment is strictly construed, however, it is clear that there is no authority to confess judgment for an amount in excess of the actual default. Indeed, a close examination of the agreement in its entirety, with specific reference to the language of paragraph ten, suggests that the parties intended the authority to confess judgment to be limited to the amount of husband’s default.

We conclude, therefore, that when the wife-appellee caused judgment to be confessed in the amount of $40,-500.00, the full amount of alimony to be paid by husband over the course of future months, she exceeded the authority contained in the warrant of attorney. As such, the confession of judgment was unauthorized, and the judgment should have been stricken. It was defective on its face.

The order of the trial court is reversed, and the judgment is stricken.

HUDOCK, J., files a dissenting statement.

HUDOCK, Judge,

dissenting:

Respectfully, I dissent and would affirm on the basis of the trial court’s opinion.

      . Husband has not challenged the propriety of this judgment.


author: CERCONE, Judge:

text:
    583 A.2d 5
    Gerald P. McKEE, t/a Capital Resource Associates v. Lewis P. MOON, Jr., and J.W. Moon, Inc. Appeal of Lewis P. MOON, Jr.
    Superior Court of Pennsylvania.
    Submitted Sept. 17, 1990.
    Filed Dec. 10, 1990.
    Harold DeWalt, Easton, for appellant.
    Ralph J. Bellafatto, Easton, for appellee.

      Before McEWEN, DEL SOLE and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the learned court’s final order finding appellant, Lewis P. Moon, Jr., individually liable for the unpaid balance of ten thousand one hundred twenty-six dollars and twenty-five cents ($10,126.25) to the above-captioned appellee, Gerald P. McKee, for work performed by McKee for J.W. Moon, Inc. At the time this case arose, appellant was president of J.W. Moon, Inc., hereinafter “the corporation.” For the reasons set forth below, we affirm.

The sole question to be resolved is whether paragraph five (5) contained in the contract between McKee and the corporation, placed responsibility upon Lewis P. Moon, Jr. president of the corporation, as an individual and not as a corporate officer for payment of the sum McKee claims is due as a remaining balance for work performed by him for the corporation. Paragraph five (5) reads as follows:

The person executing this Agreement on behalf of the Client represents that he or she has full authority to do so and guarantees the payment by Client to Agent of all the fees and expenses described above. The parties further agree that this Agreement shall not be altered or amended without written consent of both parties hereto.

The evidence at trial discloses that at the time the contract was prepared, appellee’s counsel explained the agreement to appellant paragraph by paragraph and word for word to make certain that appellant understood the significance of his personal and individual responsibility in the event his corporate “client” defaulted in payment for work performed by McKee. Appellant denies paragraph five (5) is to be construed as McKee’s counsel asserted at trial. The appellant also contends that he signed the agreement as an agent of the corporation and not as an individual grantor.

As the learned trial court, in this non-jury case, stated: In view of the language of paragraph 5, the failure of Mr. Moon to execute the contract in his individual as well as his representative capacity is not vital to the [appellee’s] claim. This case is governed by the well established principle of law that an individual acting as an agent for a disclosed principle is not personally liable on a contract between the principle and a third party unless the agent specifically agrees to assume liability. Vernon D. Cox and Company, Inc. v. Giles, 267 Pa.Super. 411, [415,] 406 A.2d 1107, 1110 (1979).

See also Pennsylvania Gas & Water Co. v. Nenna & Grain, Inc., 320 Pa.Super. 291, 467 A.2d 330 (1983) (person contracting as agent is personally liable where he makes contract in his own name or voluntarily incurs personal responsibility); Kiska v. Rosen, 181 Pa.Super. 506, 124 A.2d 468 (1956) (person who contracts as agent will be personally liable where he makes the contract in his own name or voluntarily incurs personal responsibility, either expressed or implied). After listening to the extensive testimony of the witnesses pertaining to the understanding and meaning of paragraph five (5), and judging its credibility, and upon examining the language of the paragraph in this contract, the learned lower court correctly found that appellant specifically agreed to assume individual responsibility for payment of the claimed sum.

Judgment affirmed.


author: HESTER, Judge:

text:
    583 A.2d 428
    COMMONWEALTH of Pennsylvania v. William LONG a/k/a William A. Long, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 25, 1990.
    Filed Oct. 26, 1990.
    Reargument Denied Jan. 4, 1991.
    Petition for Allowance of Appeal Granted April 8, 1991.

      Stanton D. Levenson, Pittsburgh, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before CIRILLO, President Judge, and POPOVICH and HESTER, JJ.
   HESTER, Judge:

This is an appeal by William Long from the judgment of sentence of ninety days imprisonment imposed after the trial court found him in civil contempt for failing to testify at the murder and conspiracy trial of Curtis Brandon. Appellant invoked his fifth amendment privilege against self-incrimination, which the trial court determined did not apply since appellant could not have been incriminated as a result of the testimony that was being sought at the Brandon trial. The trial court’s conclusion rests primarily on the fact that appellant had testified and had been convicted at his own murder trial stemming from the same murder as the one for which Brandon was being tried. The issue presented is whether appellant properly invoked his fifth amendment privilege under the circumstances presented in this appeal. We conclude that he did not and affirm.

The material facts are not in dispute. Appellant was convicted of third degree murder on May 3, 1989, for his participation in the August 20, 1988 shooting death of Jonathon Bailey. He was acquitted of conspiracy. He was sentenced, and we affirmed on direct appeal. Commonwealth v. Long, 397 Pa.Super. 140, 579 A.2d 970 (1990). At his own trial, appellant testified about the circumstances of the homicide, and during his own direct appeal, appellant related the following as a correct summary of the events surrounding the shooting:

In the early morning hours of August 20, 1989, Appellant received a telephone call from his mother-in-law, Alberta Houston, informing him that his 20-year-old niece, Stephanie had been raped. After receiving this phone call, he woke up his daughter, told her that Stephanie had been raped, telephoned his wife Judy Long at the V.A. Hospital where she worked as a registered nurse, told her what happened, and then proceeded with his daughter to his mother-in-law’s house. Appellant arrived there at 9:30 a.m. to find his mother-in-law “hysterical”.
Meanwhile, Judy Long had driven to Magee Women’s Hospital to get Stephanie and take her to Judy’s mother’s house where Stephanie lived. When Judy met Stephanie at the hospital, Stephanie was crying and “devastated.” Judy and Stephanie arrived at Stephanie’s home at around 10:30 a.m. Stephanie was clothed in a bathrobe and still appeared “very hysterical.” She immediately took a shower, and Judy returned to work.
About a half an hour later, Stephanie told Appellant that she had been raped. Appellant asked her if she knew who raped her. She said Jonathon Bailey from Homewood (whom Appellant had not known previously) and described the car he was driving. She also told Appellant that Bailey had threatened her that he didn’t care who she had told because if she told anyone and they said anything to him he would “f_ them up and he would f_her up too, and that if she put him in jail, that he was going to kill her when he got out.”
About half an hour later, Appellant went to a local bar on Lincoln Avenue, had a beer and then went to Home-wood to get some information on Jonathon Bailey. Appellant visited the Homewood Field (also known as Willie Stargell Field) at around 3:00 p.m. Through his investigation, Appellant learned that Bailey would be at Home-wood Field at approximately 6:00 p.m. to attend football practice for a semi-professional team called the East End Raiders. At around 4:00 p.m., Appellant picked up his wife at work and drove to his mother-in-law’s house to get his mother-in-law and Stephanie so Stephanie could report the rape to the Monroeville police. After taking Appellant home at 5:00 p.m., Judy Long, her mother and Stephanie proceeded to the Monroeville police station where Stephanie made her report.
Meanwhile, at around 5:30 p.m., Appellant thought that, since Stephanie was pressing charges against Bailey, he should try to talk to him. Appellant then walked to Homewood Field in search of Bailey. He had a gun for self-protection. When Appellant arrived at the field around 6:00 p.m., he shot basketball for a while and made some inquiries about Bailey. A short time later, Appellant saw his brothers, Dusty and Michael, at the field. Since Appellant had no idea that his brothers would be there, he asked them, “What are you guys doing here?”. They said they had “run into a friend” of Appellant’s who told them he would be at the Homewood Field. His brothers asked him what was going on, to which the Appellant replied, “I came up here to see this guy about Stephanie.” Michael asked if he was all right, and Appellant said, “Yes, I’m all right, you guys don’t have to stick around.” They said they would wait around anyway.
Five minutes later, a man in a silver gray Chrysler pulled up and parked the car. When he got out, Appellant] called, “Hey, Jonathon.” Bailey turned around and replied, “What?” Appellant said, “I want to talk to you about Stephanie.” Bailey responded, “Stephanie who?”. Appellant said, “Stephanie, the girl you raped.” Bailey retorted, “F_you and Stephanie, I don’t want to hear that sh__” At that point, Baile[y] walked across the street and started conversing with a Mr. Eackles. Appellant pursued Bailey to let him know that Stephanie had gone to the police to press charges against him and that if Bailey harmed her, he would have to answer to him. As Appellant approached Bailey and Eackles, Bailey got into Eackles’ car with Mrs. Eackles. Appellant then told Bailey, “Now are you going to get out, man, are you going to get out of the mother f_car and talk to me like a man, or do you just like to take pussy?” Angered by Appellant’s words, Bailey kicked at Appellant and then grabbed a pipe and hit Appellant on the arm as Appellant reached for Bailey’s legs. Appellant backed up several feet from the car and Bailey came out, exclaiming: “You want to see me, mother f_, you want to see me.” Appellant pulled out the pistol and fired two shots into the ground in an attempt to stop Bailey. Simultaneously, Dusty Long had come from across the street and hit Bailey in the back with a piece of wood as he grabbed Bailey by the shirt. Bailey then broke loose from Dusty, tearing his shirt, and started running away. Appellant chased him. Bailey ran over the wall and through the courtyard. Appellant yelled, “Stop, man, if this is what you want, stop, mother f__” As Bailey ran onto the field, Appellant fired his gun from about 124 feet away and hit Bailey in the back, causing him to fall to the ground. Appellant immediately ran up to Bailey. He felt scared for doing something he had not intended to do. Realizing that Bailey was hurt, Appellant turned and ran off the field. Appellant did not see what happened to Bailey after his departure.

Id., 397 Pa.Super. at 144-145, 579 A.2d at 971-72.

Subsequent to his conviction, appellant was subpoenaed to testify at the trial of Curtis Brandon by Brandon’s attorney. On June 3, 1989, appellant was adjudged in civil contempt for failing to testify in accordance with that subpoena. At the June 2, 1989 hearing, it was established that in his offer of proof, Brandon’s attorney stated that he subpoenaed appellant to testify about the same events which appellant had discussed during his own trial, and the attorney stated that he wanted the testimony to be consistent with appellant’s testimony at his own trial since that testimony failed to implicate Brandon. When appellant invoked his fifth amendment privilege against self-incrimination, the trial court stated that the privilege no longer existed under the circumstances and instructed him to testify. Appellant nonetheless refused five times to testify, and when he invoked the privilege a sixth time, the trial court warned him that he would be subject to contempt under 42 Pa.C.S. § 4132 if he did not testify. Appellant continued to refuse to testify. He was adjudged in contempt and sentenced at the June 3, 1989 hearing to a term of imprisonment of ninety days. This appeal followed.

The sole issue presented on appeal is whether appellant properly invoked his fifth amendment privilege against self-incrimination under the circumstances presented. The trial court, in concluding that the privilege did not apply, reasoned that the answers to the questions that would have been asked him in the second trial could not have incriminated him since he already had testified and had been convicted for his participation in the events. The trial court rejected as illusory the claims advanced by appellant as possible incriminatory consequences of testifying at Brandon’s trial. Those claims are that: 1) since he was in the process of appealing his own conviction and may have obtained reversal, he could be incriminated by testifying at Brandon’s trial in that the testimony might have been used against him at his own retrial; and 2) he may have been subjected to cross-examination at Brandon’s trial by the Commonwealth with prior inconsistent statements that he gave in his presentence report; and 3) he could have been subjected to perjury prosecution since his testimony at the Brandon trial would have been inconsistent with that of other witnesses. We concur with the trial court’s conclusion that these are not sufficient allegations to warrant application of the privilege in this case.

We first discuss the parameters of the fifth amendment privilege against self-incrimination. When an individual is called to testify in a judicial proceeding, he is not excused from answering questions merely by declaring that the answers would be self-incriminating. The trial court must determine if silence is justified, and illusory claims must be rejected. On the other hand, however, for the court to properly overrule the claim of privilege “it must be perfectly clear from a careful consideration of all circumstances that the witness is mistaken in the apprehension of self-incrimination and the answers demanded cannot possibly have such tendency.” Commonwealth v. Carrera, 424 Pa. 551, 553-4, 227 A.2d 627, 629 (1967) (emphasis in original); see also Commonwealth v. McGrogan, 523 Pa. 614, 568 A.2d 924 (1990); Commonwealth v. Strickler, 481 Pa. 579, 393 A.2d 313 (1978).

In most cases decided in this Commonwealth, the application of the privilege has been clear in that either the witness was involved in the criminal episode and could invoke the privilege, see, e.g., Commonwealth v. Carrera, supra, Commonwealth v. Allen, 501 Pa. 525, 462 A.2d 624 (1983), and Commonwealth v. Neary, 355 Pa.Super. 92, 512 A.2d 1226 (1986), or the witness was not involved in the criminal episode and the claim of self-incrimination was illusory. See Commonwealth v. Rolon, 486 Pa. 573, 406 A.2d 1039 (1979), and Commonwealth v. Yabor, 376 Pa.Super. 356, 546 A.2d 67 (1988). Thus, it is clear that if a witness is involved in the crime, he may invoke the privilege because his testimony may be used to convict him. However, it also is clear that the incrimination must be criminal in nature and that undesirable or unpleasant, but noncriminal, consequences from testimony is not protected by the fifth amendment. Hoffman v. United States, 341 U.S. 479, 485-86, 71 S.Ct. 814, 817-18, 95 L.Ed. 1118 (1951).

In Commonwealth v. Yabor, supra, the victim of a shooting refused to testify at the perpetrator’s trial because the victim subsequently assaulted the perpetrator and was being prosecuted for that assault. The victim of the shooting believed that the perpetrator would not testify against him in the assault trial if the victim did not testify against the perpetrator in the trial relating to the shooting incident. We concluded that the victim’s testimony about the shooting could not possibly subject him to criminal prosecution and that noncriminal but injurious consequences from testimony was not protected under the fifth amendment.

In the case at issue, appellant was tried and convicted for Bailey’s murder. More importantly, however, appellant testified himself that he shot the fleeing victim in the back and identified who helped him murder Bailey. Further, he was subpoenaed by the defense at Brandon’s trial and asked to testify consistently with his trial testimony. We therefore will examine cases where the defendant asserting the privilege has been prosecuted successfully for the crime and determine whether they uphold application of the privilege under the circumstances presented.

In Commonwealth v. Strickler, supra, the court considered whether a defendant could invoke the fifth amendment privilege against self-incrimination when called to testify at the trial of his accomplice. The defendant was subpoenaed to testify by the Commonwealth about a robbery to which he previously had pled guilty. The supreme court noted that normally, entry of a guilty plea operates as a waiver of the fifth amendment privilege against self-incrimination. However, the court recognized that a guilty plea may be overturned on collateral attack through post-conviction proceedings. It further did not reject outright the defendant’s position that his testimony at his accomplice’s trial could have been used against him if he successfully withdrew his guilty plea and the Commonwealth decided to try him. It concluded that such a possibility, however, was remote.

The court thus refused to adopt a per se rule that the privilege either could or could not be invoked once the defendant has pled guilty. It determined that whether the defendant could invoke the privilege following entry of a guilty plea must be decided on a case by case basis by the trial court based on the facts and information available to the trial court when the privilege was invoked. Under the circumstances presented in Strickler, the court upheld the trial court’s refusal to allow the defendant to invoke the privilege and thus upheld the trial court’s adjudication of contempt.

A key factor in the Strickler court’s decision was the following. The defendant had served his sentence in prison and had pled guilty to receiving stolen property. Thus, it would have been unlikely that the defendant actually would seek to withdraw his guilty plea and face a trial on charges of robbery, conspiracy, and receiving stolen property when he' had completed his sentence on the receiving-stolen-property charge. This analysis compels us to look to the realities of the situation presented and acknowledge what may be a false claim of incriminatory possibilities.

In the present case, although appellant did not plead guilty to the criminal charges, he was convicted of the crime. As in cases involving guilty pleas, the ordinary rule is that once an individual is convicted of a crime, the privilege against self-incrimination no longér exists as to that crime. Reina v. United States, 364 U.S. 507, 518, 81 S.Ct. 260, 264, 5 L.Ed.2d 249 (1960). Thus, appellant’s claim of privilege rests on the same possibilities as the court discussed in Strickler. In the present case, as in Strickler, we defer to the trial court’s application of the facts to the law, and we reject this fifth amendment claim as illusory based on the following important factors: 1) appellant testified at his own trial; 2) his testimony was self-incriminatory and established his guilt to the charges of which he was convicted; and 3) he was subpoenaed at his accomplice’s trial by his accomplice in order to testify consistently with his testimony at his own trial.

Essentially, appellant had implicated himself in the Bailey shooting by his own testimony. He could not have incriminated himself any further by testifying for Brandon. If appellant had not testified in this manner at his own trial, his claim of self-incrimination may not be illusory since any testimony he offered at his accomplice’s trial would have incriminated him when he had not done so at his own trial. The reality here, then, is that appellant incriminated himself at his own trial by admitting to actions constituting murder. He was not subjecting himself to any possibility of further criminal prosecution. Therefore, the trial court was correct in rejecting application of the privilege.

This analysis is consistent with federal cases discussing the concept. In United States v. Rodriquez, 706 F.2d 31 (2d Cir.1983), for example, the second circuit noted that once a defendant pleads guilty, he can be compelled to testify as to the crime to which he pled guilty. Only if the witness is still subject to prosecution for other crimes, which his testimony may reveal, does the privilege still remain. Accord United States v. Pardo, 636 F.2d 535 (D.C.Cir.1980); United States v. Yurasovich, 580 F.2d 1212 (3rd Cir.1978). In the present case, appellant’s testimony at Brandon’s trial would not have subjected him to prosecution for crimes other than the one for which he stood convicted, based partially on his own testimony.

Appellant next submits that he could have been subjected to penalty for perjury for his testimony at Brandon ’s trial in the event he had testified at that proceeding. His contention, then, is that he should be allowed to invoke the fifth amendment privilege against self-incrimination because he would have lied at Brandon’s trial and therefore later could be tried for perjury. The federal courts have examined whether a possible prosecution for perjury may support invocation of the fifth amendment privilege against self-incrimination. They have rejected categorically the suggestion that a witness may claim the privilege out of fear that he will be prosecuted for perjury for what he is about to say. See United States v. Tindle, 808 F.2d 319, 325 (4th Cir.1986); United States v. Partin, 552 F.2d 621, 632 (5th Cir.1977); see also In re Grand Jury Proceedings, 819 F.2d 981 (11th Cir.1987). The fifth amendment is not a sword to condone perjury; it is a shield to prevent an individual from subjecting himself to criminal prosecution based on his own testimony. Thus, we reject appellant’s claims of self-incrimination premised upon possible cross-examination with prior inconsistent statements and possible implementation of perjury charges based on the fact that his testimony at Brandon’s trial would have been inconsistent with the testimony of other witnesses.

Accordingly, the judgment of sentence is affirmed.

      . The trial court specifically determined that the proceeding was for civil and not criminal contempt. Notes of Testimony, 6/3/89, at 4.

      . On appeal, appellant relies upon the supreme court’s decision in Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977). However, the portion of Rodgers that discusses this issue was joined only by two justices. Further, even if Rodgers could have been considered precedential prior to Strickler, which has a five judge majority, the Strickler court made clear that Rodgers was no longer controlling on this issue.

      . We note that the fact that appellant did testify at his own trial does not operate as a waiver of his privilege against self-incrimination. Commonwealth v. Hall, 523 Pa. 75, 565 A.2d 144 (1989).

      . The trial court's duty to determine the applicability of the privilege has been reaffirmed in subsequent case law. See Commonwealth v. McGrogan, supra; see also 42 Pa.C.S. § 5941(a), although this determination must be supported by a reasoned application of the facts to the claim of privilege. Commonwealth v. Rolon, supra.


author: BECK, Judge:

text:
    583 A.2d 434
    Peggy L. GRUBER, Appellant, v. Kenneth E. GRUBER, Jr., Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 4, 1990.
    Filed Dec. 3, 1990.

      Michael A. Goldber, Lancaster, for appellant.
    George E. Christianson, Lebanon, for appellee.
    Before OLSZEWSKI, BECK and HOFFMAN, JJ.
   BECK, Judge:

The issue in this case is the standard to be applied by a trial court in determining under what circumstances a parent who has primary physical custody may relocate outside the jurisdiction of the court.

Appellant, Peggy Gruber (mother), appeals from the trial court’s order denying her permission to move out of the state with her children and conditioning her continued retention of primary physical and legal custody of her children on her remaining in Pennsylvania. For the reasons which follow, we affirm in part, reverse in part and remand for proceedings consistent with this opinion.

Appellant Mother and appellee Kenneth Gruber, Jr. (father) were married in 1980. They have three children: Jason, age 4; Stephanie, age 2; and an infant born after this appeal was filed. The parties separated in November, 1989. On November 15, 1989, the court issued an order that gave legal and primary physical custody to mother and gave father visitation on alternate weekends and numerous, specified holidays. This order reflected a custody agreement between the parties.

After the parties separated, mother and children continued to live in the house which she rented from father’s parents. Pursuant to an order entered together with the above-mentioned custody order, father was paying mother $475.00 a month in child support and $150.00 a month in spousal support. Father visited the children approximately as often as the visitation schedule allowed.

During one of his visits with the children on New Year’s eve, 1989, father argued with mother and allegedly shoved and hit her in the shoulder. The parties’ small children witnessed the conflict. Mother was pregnant at the time. A few days later, as a result of the recent clash and also because of continued threats to her safety, mother petitioned the court for a protection from abuse order. The parties agreed by stipulation that father would refrain from any manner of abuse in the future. However, the stipulation did not restrict father’s visitation with the children except to the extent that it imposed a notice requirement and also prescribed that the visits would take place in father’s parents’ nearby apartment. Mother became increasingly depressed and isolated in her surroundings. Her deteriorating psychological state was the result of many factors including the confrontations with her husband, a perceived animosity from her in-laws, a lack of emotional support in the absence of friends or family, and anxiety about having to move from her apartment which no longer was going to be available to her through her in-laws. As a result appellant decided that the best alternative for herself and the children would be to relocate to an area where she would have family and support nearby and where she could conclude her pregnancy and begin caring for her children in a more stress-free and promising environment. Appellant’s brother and sister-in-law in Illinois invited her and the children to live with them in their home and, in addition, offered to support them until she became self-sufficient.

Father learned of mother’s intentions to leave Pennsylvania. On January 30, 1990 he petitioned the trial court for issuance of a writ ne exeat seeking to prevent mother from removing the children from the state. Two weeks later, mother petitioned the trial court for modification of the visitation order “so as to accommodate [mother’s] permanent return to Illinois with her two minor children”.

A hearing was held on the two petitions on February 26, 1990 before the Honorable G. Thomas Gates. At the hearing both mother and father testified regarding the potential impact of the move. Mother explained that her brother had offered her and the children a home, support and help with future employment. She testified that her brother was her closest relative and that other relatives were at even greater geographical distances. She emphasized that she had no friends in the area and felt exceedingly isolated. Her understanding was that she had to vacate her current living arrangements in the near future and was unable to afford alternate housing. Although she acknowledged that appellee had offered to permit her to stay in their former marital residence, she hesitated because it was in an unfinished condition, was very expensive to maintain and was, once again, extremely isolated. Mother also testified that she recently had been treated for depression and she offered the testimony of Dr. Terry Tressler, her obstetrician. Dr. Tressler noted that appellant was under considerable stress as a result of her current family situation and stated that he thought the anxiety would have an unquantifiable yet real negative impact on her pregnancy. He opined that a move into a positive, supportive environment would lessen her tension and be beneficial to her health.

Father testified that he had been employed for over three years at the flight facility at Indiantown Gap as a helicopter mechanic and was entitled to thirty days off a year. He also is a member of the Pennsylvania National Guard which requires him to be on duty two weeks every summer. He stated that after he learned of mother’s intention to leave the state with the children he concluded that, rather than have her relocate, he wanted custody of the children. Barring that, father stated a preference for splitting custody arrangements so that he would have the children during the school year and mother would have partial custody during the summer months. He stated further, in response to questioning, that should he have the children in the summertime, his parents would be able to care for them while he fulfilled his military obligations with the National Guard.

In an effort to convince the trial court to alter the formerly agreed upon custody arrangements, father testified that mother had, in his opinion, attempted to isolate the children from his parents and other family members and that her housekeeping and caregiving capabilities were inadequate. On his behalf, father called his sister and brother, both of whom testified that mother .had tended to keep the children from fully participating in family events and from playing with their cousins. Father’s sister also stated that mother’s housekeeping was below par. In response, mother stated that her home had gotten markedly tidier since father had moved out. She further stated that she tended to avoid her brother-in-law’s children as playmates for her own children because they had dissimilar child rearing approaches and she felt that the contact did not benefit her children. We note that Dr. Tressler described the children as seemingly happy, well-adjusted and well-behaved.

Following the hearing, the trial court issued an order which again awarded legal and primary custody of the children to their mother and visitation rights for the father. However, the trial court ordered further that “the children shall not be removed from the jurisdiction of this Court. Should the mother move from the Commonwealth of Pennsylvania, the children shall remain in legal and primary custody of the father during the school year and with the mother during the summer vacation months of June, July and August.”

Mother appealed to this court and challenges, the trial court’s refusal to modify the custody arrangements so as to allow her to move to Illinois and retain primary custody of the children. The trial court justified its conclusion by explaining that “the best interests] of the children are paramount to either parties’ desires”. The trial court apparently found that the children’s interests could be served only by remaining in “an environment where they have access to both parents”. The trial court noted that “[mother] can start her life over in another state, but the children’s lives will not be disrupted in the process”. We find that the trial court erred in so ruling and we reverse that aspect of the trial court’s order.

In the instant “relocation” case, this court once again is faced with resolving a conflict with deep and almost irreconcilable competing interests at stake. Our task is to formulate a solution which recognizes and attempts to serve the crucial interests involved without creating excessive hardship. Until now, our court has articulated a standard for resolving “relocation” conflicts which states simply that the best interests of the child governs the result. See, e.g., Clapper v. Clapper, 396 Pa.Super. 49, 578 A.2d 17 (1990); Lozinak v. Lozinak, 390 Pa.Super. 597, 569 A.2d 353 (1990). While we do not dispute that achieving “the best interests of the child” remains the ultimate objective in resolving all child custody and related matters, we believe that the standard must be given more specific and instructive content to address, in particular, “relocation” disputes. Unless more direction is provided, the trial court is left without adequate guidance and of necessity may decide these cases on impressionistic and intuitive grounds. Such an approach does not do justice to the critical concerns at stake in “relocation” cases nor does it provide for uniform, evenhanded, and predictable dispute resolution.

At the outset we note that our research has failed to reveal a consistent, universally accepted approach to the question of when a custodial parent may relocate out-of-state over the objection of the non-custodial parent. In fact, the opposite is true. Across the country, applicable standards remain distressingly disparate. Despite the disparity, however, a few guiding principles emerge from several well-reasoned cases which we have carefully examined in fashioning a standard by which our courts can resolve relocation disputes.

In what we view as an insightful and helpful caveat regarding the context within which relocation cases must be assessed, the court in Helentjaris v. Sudano, 194 N.J.Super. 220, 230, 476 A.2d 828, 833 (1984), observed:

[I]t is obvious that for the child the fact of the divorce becomes the predicate of his subsequent relationship with both parents and that relationship can never be the same as it would have been had the marriage remained intact. Adjustments and accommodations must be made as a result of the divorce, the whole point of which was to permit each parent to go his or her own way. Within reason, both parties must be permitted to do so, and the child’s best interests must be served within that context. Consequently, the Helentjaris court cautioned against a

futile “judicial insistence on maintaining a wholly unrealistic simulation of unity”. Id. at 229, 476 A.2d at 832.

After divorce, out of the single family two new family units are created; the one in which the parent has primary physical custody of the children and the other in which the parent has partial custody of the children. In terms of the best interests of the child the primary physical custody family must be viewed as the family central and most important to the child’s best interests.

It is in that family that the day-to-day routine and the day-to-day emotional interaction between parent and child are established. These myriad and ordinary contacts forge the child’s character, psychological health, and value system. While the family of the non-custodial parent is important to the child, the nature of that relationship is necessarily different and less intense and not as formative and influential as the other.

In determining the best interests of the child we must, therefore, focus on the primary custodial family. “[W]hat is advantageous to the unit as a whole, to each of its members individually and to the way they relate to each other and function together is obviously in the best interests of the children.” D’Onofrio, 144 N.J.Super. at --- -—, 365 A.2d at 29-30. See also DeCamp v. Hein, supra; Simon v. Simon, 435 So.2d 941, 942 (Fla.Dist.Ct.App.1983).

Therefore, our analysis begins with the recognition that divorce causes irrevocable changes in parent-child relationships. Further, we emphasize that the best interests of the child are more closely allied with the interests and quality of life of the custodial parent and cannot, therefore, be determined without reference to those interests. In the context of relocation cases this principle translates into an understanding that when relocation is likely to result in a substantially enhanced quality of life for a custodial parent, often the child’s best interests will be indirectly but genuinely served.

On the other hand, this court is fully appreciative of and sensitive to the mutual interest of the child and the non-custodial parent in maintaining as healthy and loving a relationship as possible. Indeed, we have characterized this interest emphatically as follows: “Every parent has the right to develop a good relationship with the child, and every child has the right to develop a good relationship with both parents.” Pamela J.K. v. Roger D.J., 277 Pa.Super. 579, 593, 419 A.2d 1301, 1309 (1980). The task of this court is to sacrifice the non-custodial parent’s interest as little as possible in the face of the competing and often compelling interest of a custodial parent who seeks a better life in another geographical location.

Thus, in every relocation dispute the following interests must be accommodated as nearly as possible: the custodial parent’s desire to exercise autonomy over basic decisions that will directly affect his or her life and that of the children; a child’s strong interest in maintaining and developing a meaningful relationship with the non-custodial parent; the interest of the non-custodial parent in sharing in the love and rearing of his or her children; and, finally, the state’s interest in protecting the best interests of the children. Keeping these interests in mind, we have developed a standard to accommodate those often conflicting interests. We do so with a knowledge that there can be no black letter formula that easily resolves each case and with the profound appreciation that no resolution can eliminate all disruptions for both parents and children affected by relocation after divorce.

In order to decide whether a custodial parent and children shall be permitted to relocate at a geographical distance from a non-custodial parent, a trial court must consider the following factors. First, the court must assess the potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the children and is not the result of a momentary whim on the part of the custodial parent. In considering the prospective advantages to the move, a court shall not limit itself solely to enhanced economic opportunities for the custodial parent but must also assess other possible benefits of the relocation. For instance, relocation may be motivated by a desire to return to a network of family or friends, or to pursue educational opportunities, or to seek an improved physical environment in which to live and raise children. Clearly, these examples are not intended to be exhaustive nor will each be applicable in every case. We emphasize, however, that courts are not free to ignore or discount non-economic factors which are likely to contribute to the well-being and general happiness of the custodial parent and the children. Ordinarily, when the move will significantly improve the general quality of life for the custodial parent, indirect benefits flow to the children with whom they reside.

Next, the court must establish the integrity of the motives of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it. The court must assure itself that the move is not motivated simply by a desire to frustrate the visitation rights of the non-custodial parent or to impede the development of a healthy, loving relationship between the child and the non-custodial parent. An aspect of this determination is the degree to which the court can be confident that the custodial spouse will comply cooperatively with alternate visitation arrangements which the move may necessitate. Likewise, the court must consider the motives of the non-custodial parent in resisting relocation and decide whether the resistance is inspired by motives other than a legitimate desire to continue and deepen the parent-child relationship.

Finally, the court must consider the availability of realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent. We recognize that, in many cases, former weekly visitation may have to give way to an altered schedule which allows for less frequent but more extended contact between parent and child. However, the necessity of shifting visitation arrangements to account for geographical distances will not defeat a move which has been shown to offer real advantages to the custodial parent and the children. We agree with the court in D’Onofrio, which stressed:

The court should not insist that the advantages of the move be sacrificed and the opportunity for a better and more comfortable life style for the [custodial parent] and children be forfeited solely to maintain weekly visitation by the [non-custodial parent] where reasonable alternative visitation is available and where the advantages of the move are substantial.

D’Onofrio, 144 N.J.Super. at-, 365 A.2d at 30. See also DeCamp v. Hein, 541 So.2d 708, 712 (Fla.App. 4 Dist.1989); Auge v. Auge, 334 N.W.2d 393, 398 (Minn. 1983) (relocation should not be disallowed solely to maintain the existing visitation patterns).

When a custodial parent seeks to relocate at a geographical distance and the non-custodial parent challenges the move, the custodial parent has the initial burden of showing that the move is likely to significantly improve the quality of life for that parent and the children. In addition, each parent has the burden of establishing the integrity of his or her motives in either desiring to move or seeking to prevent it. The custodial parent must convince the court that the move is not sought for whimsical or vindictive reasons. Likewise, the non-custodial parent must show that resistance to the move stems from concern for the children and his or her relationship to them. The court must then consider the third factor discussed above, namely the feasibility of creating substitute visitation arrangements to ensure a continuing, meaningful relationship between the children and the non-custodial parent. Once again, we reiterate that a move sought to secure substantial advantage for the custodial parent and children will not be disallowed simply because visitation cannot continue in the existing pattern. Sensitive case-by-case balancing is required to ensure that all interests are treated as equitably as possible.

Having enunciated the standard, we turn to the facts of the instant case and conclude that mother should be permitted to relocate to Illinois with her children and infant. In our view, the trial court impermissibly either ignored or underestimated the pertinent factors which mother produced to establish that the move would substantially enhance the quality of her life and that of her children. As a result the trial court abused its discretion in denying her permission to move with the children. The record showed that mother considered herself to be living in an alien environment, surrounded by people she knew solely through her now-estranged husband. She had no close friends in the area and no family. Whatever support she may have received from her in-laws prior to the dissolution of the marriage apparently no longer existed for her after the marriage failed. Mother experienced considerable feelings of loneliness and anxiety due to her isolation from friends and family in what was obviously a time of crisis. Her living arrangements were about to expire, leaving her with no desirable alternatives. She was unemployed and had little hope of becoming immediately self-supporting given the responsibilities of a new baby and two small children. Her relationship with appellee was marred by frequent confrontations, at least some of which occurred in front of the children. Appellant’s doctor verified that she was being treated for depression and that the stress she was experiencing was likely to have a negative effect on her health.

In contrast to her situation in Pennsylvania, the contemplated move to Illinois offers the mother the opportunity to approach the future and raise the children surrounded and supported by family and friends. Her brother and his wife have offered to have her and the children live with them in their home. They have promised financial support for the present and aid in securing employment in the future. The move apparently would place her closer to where she grew up and would allow her to re-establish a network of friends from her past, with whom she has kept in touch. Finally, the move would allow her to escape the turmoil and troubled confrontations with her estranged husband.

In light of the foregoing, we conclude the mother more than met her burden of establishing that the proposed move would significantly and directly improve the quality of life for herself and therefore her children. We stress that we consider the children’s well-being and best interests inextricably joined to the health and happiness of the custodial parent. We think it is indisputable, under the circumstances of this case, that appellant’s ability to be an effective parent to her children is seriously undermined by the difficulty and unhappiness of her life in Pennsylvania. Conversely, there is no question that the move to Illinois is likely substantially to promote the well-being of the mother and, consequently make her a more effective, superior parent. We think it is fundamental that the best interests of the children cannot, in this case, be severed from the interests of the mother with whom they live and upon whose mental well-being they primarily depend.

With respect to the integrity of the motives of the parties in seeking and resisting the move, the record reveals no evidence whatsoever that either party is acting with illegitimate purposes. Appellant’s desire to move clearly is motivated by the need for security, support and solace from family and friends. She is not seeking to deny father access to the children nor did she evidence any recalcitrance in allowing father to exercise his visitation rights. In fact, both mother and father stated that she permitted father access to the children as often as the visitation order permitted.

Finally, there does not appear to be any overly burdensome impediment to a revised, realistic visitation schedule which adequately could foster a continuing relationship between father and the children. Father testified to an annual leave time of thirty days from his job. He further testified that his parents could help him with child care in the event he had partial custody of the children during times when he had to work. Father appears to have an extensive and seemingly close family nearby to help him during times when he might assume the role of primary caregiver. No doubt father would prefer to retain the status quo and achieve easier, more frequent access to his children. However, weighing this factor, as we must, against the demonstrated substantial advantages of the proposed move for mother and children, we cannot say that the shifting of the accustomed visitation arrangements warrants depriving mother and the children of the benefits of the move.

Plainly, the resolution of relocation cases such as the instant one involves imperfect and often painful solutions. We realize that modified visitation arrangements frequently will not appease a parent who feels that he or she is losing the children when the other parent decides to leave the area. However, we believe that the realities of life for a divorced, custodial parent and for the children residing in that home compel the balance we have struck today. We seek simply to allow the custodial parent, upon whom the principal burden and responsibility of child rearing falls, the liberty and autonomy to make decisions for the future of his or her family. On the other hand, this freedom cannot be exercised so as to impose too burdensome an expense on the relationship between the children and the other parent. It is hoped that the test we announce today will allow for rational and equitable solutions to this difficult problem.

In conclusion, our disposition is as follows. We affirm the trial court’s award of primary legal and physical custody to the mother. We reverse the trial court insofar as it denied mother permission to relocate to Illinois and still retain primary custody of the children. Further, we remand to the trial court with instructions to enter an order granting appellant permission to move with the children to Illinois. In addition, we instruct the trial court to conduct whatever proceedings it deems necessary to determine a revised visitation schedule under the new circumstances which will maximize contact between the children and their father.

Order affirmed in part, reversed in part and remanded for proceedings consistent with this opinion.

      . Appellant was several months pregnant at the time of the hearing in the trial court and when her appeal to this court was taken. The birth of the third child was confirmed at oral argument.

      . Originally, father believed that mother intended to relocate to Texas because that is where mother’s father resides. Although mother apparently viewed a move to Texas to be with her father as an initial option, ultimately she decided that her brother’s offer to provide a home for her in Illinois was the better alternative.

      . We note that her current arrangements were costing mother $550.00 a month for room and board and that this amount apparently came out of a total of $625.00 in income she received monthly from spousal and child support.

      . Father does not challenge this aspect of the trial court’s order. As long as mother remains in Pennsylvania, father appears to agree with the trial court that mother is the best, suitable primary custodian for the children.

      . See D’Onofrio v. D’Onofrio, 144 N.J.Super. 200, 365 A.2d 27 (Ch. Div.), aff’d, 144 N.J.Super. 352, 365 A.2d 716 (App.Div.1976); Hale v. Hale, 12 Mass.App.Ct. 812, 429 N.E.2d 340 (1981); Auge v. Auge, 334 N.W.2d 393 (Minn.1983); Cooper v. Cooper, 99 N.J. 42, 491 A.2d 606 (1984); Holder v. Polanski, 111 NJ. 344, 544 A.2d 852 (1988); In re Marriage of Zamarripa-Gesundheit, 175 Ill.App.3d 184, 124 Ill.Dec. 799, 529 N.E.2d 780 (1988); DeCamp v. Hein, 541 So.2d 708 (Fla.App. 4 Dist.1989).

      . We do not address the situation in which the parents share physical custody of the child and each has an equal amount of time with the child. However, where appropriate the standards set forth as to relocation as advanced in this opinion should apply.

      . As the court observed in Cooper v. Cooper, 99 N.J. 42, 53-55, 491 A.2d 606, 612 (1984):
      "The realities of the situation after divorce compel the realization that the child’s quality of life and style of life are provided by the custodial parent. That the interests of the child tire closely interwoven with those of the custodial parent is consistent with psychological studies of children of divorced or separated parents____ [C]hildren of all ages ‘were in trouble’ when the home parent-child relationship was affected by stress on the home-parent, such as ‘loneliness and discouragement’.”
      (citations omitted).

      . See cases cited in footnote 5.

      . However, we caution courts not to equate a former spouse’s desire to escape from unpleasant confrontations with the non-custodial parent or from the turmoil which may result from a failed marriage with a desire to defeat visitation rights. Although a custodial parent legitimately may wish to leave what he or she considers a hostile environment for a more supportive one, that parent may remain committed to maintaining a strong relationship between the children and the non-custodial parent.

      . See footnote 7, supra.

      . See In re Marriage of Burgham, 86 Ill.App.3d 341, 345-46, 41 Ill.Dec. 691, 408 N.E.2d 37, 40 (1980), in which the court noted: “[G]ranting [relocation] would likely benefit the child by making the custodian a happier, better adjusted parent than would be the case if the custodian's freedom of movement was more restrained.”

      . Mother admitted that she was somewhat nervous about father’s reaction should the trial court permit the move, because she testified that father had repeatedly threatened to "take the kids and run away with them" if she left Pennsylvania. Father denies ever making such an across-the-board threat and insists he made the statement only out of a fear that mother might disappear with the children without informing him of her whereabouts. In any event, mother testified specifically that she had no intention of keeping the children and their father apart and that her desire to move was prompted only by a need to "start my own life over again".