author: KELLY, Judge:

text:
    664 A.2d 139
    Renee A. BLACKMAN, Appellant, v. FEDERAL REALTY INVESTMENT TRUST and Venice Construction Company, Suku Chatarjee and Mohammed Islam, Appellees, v. ARLEN PROPERTY INVESTORS, Appellee.
    Superior Court of Pennsylvania.
    Argued June 8, 1995.
    Filed Aug. 24, 1995.

      Michael J. McCaney, Jr., Plymouth Meeting, for appellant.
    Michael J. Olley, Havertown, for Venice Const., Suku Chatarjee & Mohammed Islam, appellees.
    Before McEWEN, TAMILIA and KELLY, JJ.
   KELLY, Judge:

In this opinion we are called upon to determine whether summary judgment may be entered against a plaintiff in a personal injury action where a question of fact remains as to whether a defendant landowner who possesses an easement across a parking lot where the injury occurred may be considered a “possessor of land” with a duty owing to persons injured on that portion of the lot. Based on the following reasoning, we hold that whether a party is a “possessor of land” with a duty owing to invitees is a fact question which precludes summary judgment. Accordingly, we reverse the order of the trial court and remand for further proceedings consistent with this opinion.

The relevant facts and procedural history of this ease as set forth by the trial court opinion are as follows:

Plaintiff injured her ankle when she tripped and fell in the parking lot outside the Northeast Shopping Center on October 9, 1990. Plaintiff claimed that her fall was the result of a hole or other defect in the asphalt of the parking lot. Plaintiffs fall occurred near The Hydra Diner, an establishment located in the center of the parking lot.
Plaintiff brought suit against Venice Construction, the owner of the building in which diner is located, and against Suku Chaterjee and Mohammed Islam, the lessees of the building and the operators of The Hydra Diner.
After investigation the claim, these defendants determined that the portion of the parking lot where plaintiff had fallen was owned by Arlen Property Investors. Defendants filed a joinder complaint against additional defendant Arlen Property Investors on December 23, 1992. Significantly, plaintiff never joined Arlen as a defendant in the underlying action.
On May 18, 1994, defendants Venice Construction, Chatarjee, and Islam filed a motion for summary judgment. Based on the plaintiffs deposition testimony, defendants’ motion suggested that the spot plaintiff fell was actually on the property of additional defendant Arlen Property Investors, thirty-seven feet from the border of the lot owned by Venice Construction. Consequently, these defendants argued that they were entitled to summary judgment. Plaintiffs response affirmed the defendants’ version of the details surrounding the plaintiffs fall. However, plaintiff argued that the defendants were in possession of the parking lot where the plaintiff fell, and thus liable for her injuries. Plaintiff based her argument on language found in Venice Construction’s deed to the property. This language provided that the property owned by defendant Venice Construction would be guaranteed an easement for ingress, egress, and parking across the parking lot owned by additional defendant Arlen. The deed also gave Arlen the right to collect a share of the cost of maintenance of Arlen’s parking lot from Venice Construction. Plaintiff argued that although her fall did not occur on Venice Construction’s property, Venice and its lessees were hable as a result of the easement and the duty to contribute to Arlen’s costs. In response, the defendants noted that Arlen specifically agreed in the deed to undertake responsibility for maintenance of the parking lot. Venice’s responsibility concerning the parking lot was limited to paying a share of Arlen’s maintenance costs.

Trial Court Opinion, 2/1/95, at 1-2.

The appellant raises the following issue for our review: WHERE A LANDOWNER HAS EASEMENT RIGHTS AND A DUTY TO CONTRIBUTE TO THE MAINTENANCE OF AN ADJACENT PARKING LOT WHERE AN ACCIDENT CAUSING INJURIES HAS TAKEN PLACE, IS THE ISSUE OF WHETHER SUCH LANDOWNER IS A POSSESSOR OF LAND A QUESTION OF FACT FOR A JURY?

Appellant’s Brief at 4.

Appellant argues that the question of whether the holder of an easement is a “possessor” of land is a question for the finder of fact. Specifically, appellant asserts that to affirm the trial court’s order would contradict a decision by this Court in a previous case, Leichter v. Eastern Realty Company, 358 Pa.Super. 189, 516 A.2d 1247 (1986). Thus, appellant concludes that summary judgment is not warranted here and seeks reversal of the trial court’s order so that the issue of possession may go forth to the finder of fact. We agree.

The relevant elements necessary to permit summary judgment are as follows:

First, the pleadings, depositions, answers to interrogatories, admissions on file, together with any affidavits, must demonstrate that there exists no genuine issue of fact. Second, the moving party must be entitled to judgment as a matter of law. The moving party has the burden of proving that no genuine issue of material fact exists. However, the non-moving party may not rest upon averments contained in its pleadings; the non-moving party must demonstrate that there is a genuine issue for trial. The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Finally, an entry of summary judgment is granted only in cases where the right is clear and free of doubt. We reverse an entry of summary judgment when the trial court commits an error of law or abuses its discretion.

Accu-Weather, Inc. v. Prospect Communications, Inc., 435 Pa.Super. 93, 98-99, 644 A.2d 1251, 1254 (1994) (footnote and citations omitted).

A party is subject to liability for physical harm caused to an invitee if: he knows of or reasonably should have known of the condition and the condition involves an unreasonable risk of harm, he should expect that the invitees will not realize it or will fail to protect themselves against it, and the party fails to exercise reasonable care to protect the invitees against the danger. Restatement (Second) of Torts § 343 (1965). This section of the Restatement has been adopted by the Pennsylvania courts. See Palenscar v. Michael J. Bobb, Inc., 439 Pa. 101, 266 A.2d 478 (1970); Bowman v. Fretts & Leeper Construction Company, 227 Pa.Super. 347, 322 A.2d 719 (1974).

In order for the party to be liable, it must first be a “possessor” of land. In order for a party to be a “possessor” of land, it must fit one of the following descriptions: it must be in occupation of the land with the intent to control it, it must have been in occupation of the land with intent to control it if no other party has done so subsequently, or it is entitled to immediate occupation if neither of the other alternatives apply. Restatement (Second) of Torts § 328E (1965). The question of whether a party is a “possessor” of land is a determination to be made by the trier of fact. Leichter v. Eastern Realty Company, 358 Pa.Super. 189, 193, 516 A.2d 1247, 1249 (1986). In order for an easement holder to be considered a “possessor” of land, the holder must possess sufficient occupation and control over the land. See Leichter v. Eastern Realty Co., supra at 196, 516 A.2d at 1251 (Kelly, J., concurring). This factual determination is based upon the resolution of two issues: whether the party holds an easement, and, if so, the manner in which the party exercises the prerogatives of that easement. Id. at 194-95, 516 A.2d at 1250. Only after this determination is made can the more crucial inquiry of whether the “possessor” owes a duty of care be reached. Id.

Instantly, the deed contained in the record shows that Venice held an easement for ingress, egress, and parking for its business invitees. (Plaintiffs Memorandum in Opposition to Motion for Summary Judgment of Venice, Exhibit D, at D242115). The deed also states that Venice is responsible for contributing a portion of the costs of maintenance when requested by Arlen. {Id. at D242117). Therefore, it is obvious that Venice holds an easement; the question as to how Venice exercised the prerogative of the easement in order to be deemed a “possessor of land” or not, still remains unanswered and, as stated above, is a question for the jury. Leichter v. Eastern Realty Co., supra at 193, 516 A.2d at 1249. Because a material issue of fact remained, the trial judge made an error of law in granting summary judgment.

Based on the foregoing analysis, we hold that the trial court incorrectly entered summary judgment. Accordingly, the judgment of the trial court granting defendant’s motion for summary judgment is reversed.

Judgment reversed.

      . The existence of this factual issue will, of course, not prevent the trial court from determining whether the evidence to be presented will be sufficient to withstand a motion for nonsuit. See Leichter v. Eastern Realty Co., supra at 195, 516 A.2d at 1250.


source: Caselaw Access Project

author: KELLY, Judge.

license: Public Domain

text:
    664 A.2d 142
    In re ESTATE OF Gerald J. INTER. Appeal of Thomas W. INTER and Richard J. Inter, Co-Executors of the Estate of Jean M. Inter, Appellants.
    Superior Court of Pennsylvania.
    Argued April 25, 1995.
    Filed Aug. 25, 1995.

      Bernard J. Hessley, Warren, for appellants.
    H. Robert Hampson, Warren, for Maxine Inter, participating party.
    Before DEL SOLE, KELLY and BROSKY, JJ.
   KELLY, Judge.

In this appeal, we are called upon to determine whether the Orphans’ Court of Warren County properly permitted the decedent’s widow, appellee, Maxine Inter, the right to elect to take against two bank accounts which decedent created before his marriage to appellee where the banks accounts were to be held in trust for the decedent’s mother, Jean Inter. Pursuant to 20 Pa.C.S.A. § 2203(a)(3), a surviving spouse has the right to an elective share of one-third of any property conveyed by decedent during his lifetime that the decedent had a power, at the time of his death, to either revoke the conveyance or to consume, invade, or dispose of the principal for his own benefit. Thus, we affirm.

The relevant facts and procedural history are as follows. Gerald J. Inter died on January 23, 1988, testate, leaving his farm to his wife and the residue of his estate to his mother, Jean M. Inter. The estate consisted of the farm which was bequeathed to the executrix, two other properties, various shares of stock, farm equipment, a pickup truck, a premium and accrued interest refunded from a life insurance policy issued by Monarch Insurance, and various other funds and income. The decedent also owned several bank accounts, both checking and savings. The disposition of two of these accounts are at issue in this appeal. These two bank accounts were opened in 1983 by decedent at the Seaman’s Bank before his marriage to appellee, Maxine Inter, and were established to be held in trust for Jean Inter. The record reflects that decedent maintained control over the accounts and withdrew and added funds to the checking account but never added or withdrew any funds from the savings account after making the initial deposit in 1983. The record further reflects that appellant and appellee agree that the Seaman’s Bank accounts were tentative trusts rather than joint accounts.

A petition to probate the will was filed and on February 3, 1988, appellee, the widow of the deceased, was appointed executrix. Letters testamentary were duly issued and on February 24, 1988, appellee filed a notice of intention to take against the will. On December 4, 1992, appellee filed a First and Final Account and subsequently, the Honorable Robert L. Wolfe, Senior Judge, appointed Maureen A. Flynn to serve as the court hearing officer to consider appellants’ objections to the First and Final account. The hearing officer conducted two record hearings, one on June 16,1993 and another on July 26, 1993. On February 9, 1994, the hearing officer filed her report and recommendations to which appellants filed twelve exceptions on February 28, 1994. Subsequently, the exceptions were argued before the Honorable Robert L. Wolfe, Senior Judge, who issued an adjudication and decree nisi on May 19, 1994. On June 7, 1994, appellants filed exceptions to the adjudication and decree nisi. Following argument on September 6, 1994, Judge Wolfe issued an order absolutely dismissing the majority of the exceptions. This timely appeal followed.

On appeal, appellants raise five issues for our review:

1. ARE FUNDS HELD IN TWO JOINT ACCOUNTS IN THE NAME OF DECEDENT AND HIS MOTHER BOTH ESTABLISHED BEFORE DECEDENT’S MARRIAGE SUBJECT TO THE WIDOW’S ELECTION?
2. ARE THE EXECUTRIX/WIDOW AND HER ATTORNEY ENTITLED TO A FEE BASED SOLELY ON A PERCENTAGE OF THE ESTATE ASSETS?
.3. IS THE EXECUTRIX/WIDOW ENTITLED TO CLAIM AS AN ASSET OF THE ESTATE SUBJECT TO HER WIDOW’S ELECTION THE REFUND OF A LIFE INSURANCE PREMIUM PLUS THE INTEREST ON A POLICY DISHONORED BY THE INSURER BECAUSE OF DECEDENT’S MISREPRESENTATION ON THE APPLICATION WHERE THE BENEFICIARY WAS THE DECEDENT’S MOTHER AND THE POLICY WAS ISSUED BEFORE DECEDENT’S MARRIAGE?
4. IS THE EXECUTRIX/WIDOW SUBJECT TO A SURCHARGE FOR HER FAILURE TO ACCOUNT TO THE ESTATE FOR ASSETS HAVING VALUE INCLUDING TWO MOTOR VEHICLES, FARM ANIMALS AND TIMBER?
5. IS THE ESTATE CHARGEABLE FOR EXPENSES FOR FEED BILLS, AUTOMOBILE INSURANCE, MORTGAGE PAYMENTS, CREDIT CARD ANNUAL FEES AND UTILITY BILLS INCURRED FOR MAINTAINING THE EXECUTRIX/WIDOW IN DECEDENT’S FARM HOME OCCUPIED BY THE EXECUTRIX/WIDOW WHO CLAIMED THE FARM AS PART OF HER ELECTIVE SHARE OF THE ESTATE?

Appellants’ Brief at 2.

As an appellate court, we review the findings and conclusions of the orphans’ court as follows.

The findings of a judge of the orphans’ court division, sitting without a jury, must be accorded the same weight and effect as the verdict of a jury, and will not be reversed by an appellate court in the absence of an abuse of discretion or a lack of evidentiary support. In re Estate of Cornell, 336 Pa.Super. 594, [597], 486 A.2d 424, 425 (1984).
This rule is particularly applicable “to findings of fact which are predicated upon the credibility of the witnesses, whom the judge has had the opportunity to hear and observe, and upon the weight given to their testimony.” Herwood v. Herwood, 461 Pa. 322, 336 A.2d 306 (1975). In reviewing the Orphans’ Court’s findings, our task is to ensure that the record is free from legal error and to determine if the Orphans’ Court’s findings are supported by competent and adequate evidence and are not predicated upon capricious disbelief of competent and credible evidence. In re: Estate of Damario, 488 Pa. 434, 412 A.2d 842 (1980). However, we are not limited when we review the legal conclusions that Orphans’ Court has derived from those facts. In re: Ischy Trust, 490 Pa. 71, 415 A.2d 37 (1980).
In re Estate of Dembiec, 321 Pa.Super. 515, 519-520, 468 A.2d 1107, 1110 (1983).

Estate of Gilbert, 342 Pa.Super. 82, 87-88, 492 A.2d 401, 404 (1985).

After reviewing the record, the briefs of the parties, the applicable law, and the opinion of the orphans’ court, it is our determination that the appellants’ issues two through five are without merit. The May 19, 1994 adjudication opinion authored by the Honorable Robert L. Wolfe, Senior Judge, comprehensively discusses and properly disposes of the appelfonts’ issues two through five. Therefore, we affirm on the basis of the May 19, 1994 opinion as to these issues.

In the first issue on appeal, appellants assert that the orphans’ court erred in holding that the checking and savings accounts established at Seaman’s Bank were subject tó the widow’s election. Appellants do not dispute that the Seaman’s bank accounts were trust accounts rather than joint accounts. Appellants predicate their argument on the fact that decedent created and conveyed the tentative trust accounts prior to decedent’s marriage to appellee. Accordingly, because decedent never revoked the tentative trusts, 20 Pa.C.S.A. § 2203(a) precludes appellee from electing against the tentative trust accounts. After a careful review of the record, in light of Pennsylvania law, we disagree. Therefore, we affirm the ruling of the orphans’ court as to appellants’ first issue on appeal.

A tentative trust is created when,

a person makes a deposit in a savings account in a bank or other savings organization in his own name as trustee for another person intending to reserve a power to withdraw the whole or any part of the deposit at any time during his lifetime and to use as his own whatever he may withdraw, or otherwise to revoke the trust, the intended trust is enforceable by the beneficiary upon the death of the depositor as to any part remaining on deposit on his death if he has not revoked the trust.

Restatement of the Law (Second) of Trusts § 58 (1974). The theory of tentative trusts was “enunciated in an effort to retain for the depositor complete control of the fund during his life and yet secure to the beneficiary any balance ... at the death of the depositor.” Scanlon’s Estate, 313 Pa. 424, 427, 169 A. 106, 108 (1933). A tentative trust is revocable by the (depositor) prior to his death by “any clear manifestation of an intention to do so.” In re Estate of Stevenson, 436 Pa.Super. 576, 581, 648 A.2d 559, 561 (1994) (quoting Estate of Vittorio, 290 Pa.Super. 329, 331, 434 A.2d 777, 779 (1981)). Tentative trusts do not constitute part of a decedent’s estate; rather, the funds pass directly to the named beneficiary. In re Estate of McFetridge, 472 Pa. 546, 372 A.2d 823 (1977).

A tentative trust often had the effect of precluding a surviving spouse’s right to inherit the deceased spouse’s estate. The depositor of the tentative trust retained control of the assets during his lifetime and subsequently was able to leave the money to a third party. In re Schwartz’ Estate, 449 Pa. 112, 295 A.2d 600 (1972). The obvious philosophy of Section 11 of the Estate Acts of 1947 is to prevent a husband from indirectly disinheriting his wife through an inter vivos transfer while retaining control over the use and enjoyment of the property during his lifetime. Montague Estate, 403 Pa. 558, 170 A.2d 103 (1961). Accordingly, 20 P.S. § 301.11 and its successor 20 Pa.C.S.A. § 6111 were enacted to ensure that the surviving spouse would not be disinherited through a tentative trust. Section 6111 reads as follows:

(a) In general. — A conveyance of assets by a person who retains a power of appointment by will, or a power of revocation or consumption over the principal thereof, shall, at the election of his surviving spouse, be treated as a testamentary disposition so far as the surviving spouse is concerned to the extent to which the power has been reserved, but the right of the surviving spouse shall be subject to the rights of any income beneficiary whose interest in income becomes vested in enjoyment prior to the death of the conveyor. The provisions of this subsection shall not apply to any contract of life insurance purchased by a decedent, whether payable in trust or otherwise, nor to employee death benefits described in section 6108 of this code (relating to designation of beneficiaries of insurance or employee death benefits not testamentary), whether payable in trust or otherwise.
(b) Determination of share. — The spouse may elect to take against any such conveyance and shall be entitled to one-third thereof if the conveyor is survived by more than one child, or by one or more children and the issue of a deceased child or children, or by the issue of more than one deceased child, and in all other circumstances one-half thereof.
(c) Election against other conveyances. — A spouse electing under this section also must elect to take against the will, if he is a beneficiary thereunder, and against all other conveyances within the scope of subsection (a) of this section of which he is a beneficiary.
(d) Procedure. — The election to treat a conveyance as testamentary shall be made in the same manner as an election to take against the will. If there is a will, such election shall be made within the same time limitations as an election to take against the will. If there is no will, such, election shall be made within one year of the conveyor’s death, and the orphans’ court division, on application of the surviving spouse made within such period, may extend the time for making the election. It can be made only if there has been no forfeiture of the right to make an election. The court having jurisdiction of the deceased conveyor’s estate shall determine the rights of the surviving spouse in the property included in the conveyance.

20 Pa.C.S.A. § 6111 (emphasis added).

Because 20 P.S. § 301.11 and its recodification as 20 Pa.C.S.A. § 6111 were enacted to prevent a spouse from defrauding the surviving spouse of his or her marital rights and to confirm a long existing public policy of Pennsylvania to protect a surviving spouse’s rights, see Montague Estate, supra, at 558, 170 A.2d 103; In re Behan’s Estate, 399 Pa. 314, 160 A.2d 209 (1960); In re Pengelly’s Estate, 374 Pa. 358, 97 A.2d 844 (1953), a surviving spouse had the right to elect against a tentative trust. In re Kuestner’s Estate, 72 Pa. D. & C.2d 372 (1976).

In 1978, however, 20 Pa.C.S.A. § 6111 was repealed and 20 Pa.C.S.A. § 2203 was enacted. Chapter 22 pertains to the elective rights of a surviving spouse and reads in pertinent part as follows:

(a) Property subject to election. — When a married person domiciled in this Commonwealth dies, his surviving spouse has a right to an elective share of one-third of the following property:
(3) Property conveyed by the decedent during his lifetime to the extent that the decedent at the time of his death had a po'wer to revoke the conveyance or to conswme, invade or dispose of the principal for his own benefit.

20 Pa.C.S.A. § 2203 (emphasis added).

The official comment to Chapter 22 suggests that the Pennsylvania legislature attempted to consolidate the spousal election provisions which were dispersed throughout the Estates Code. The official comment further indicates that the changes implemented by Chapter 22 were primarily intended to broaden the property subject to a surviving spouse’s election. Therefore, although the legislature repealed 20 Pa.C.S.A. § 6111, the law pertaining to tentative trusts and spousal election was not altered in any significant way because 20 Pa.C.S.A. § 6111 was recodified within Chapter 22 as indicated by 20 Pa.C.S.A. § 2203(a)(3). This is supported by the official comment to 20 Pa.C.S.A. § 2203 which states that (a)(3) of § 2203 pertains to revocable transfers and was intended to conform with current Pennsylvania law. Thus, to conclude that a surviving spouse could not elect against a tentative trust would contradict the legislature’s intent.

Despite the fact that 20 Pa.C.S.A. § 2203 was enacted in 1978, in 1984 this Court in the case of the Estate of Korn, infra, stated that the proceeds of a deferred compensation plan were not subject to the surviving spouse’s election. Estate of Korn, 332 Pa.Super. 154, 164, 480 A.2d 1233, 1238 (1984). In reaching this decision, the Court stated that because the decedent had the power to revoke the designation of the beneficiaries to the compensation plan proceeds at any time prior to death, the designation was not a conveyance as defined by 20 Pa.C.S.A. § 2201. Id. at 164, 480 A.2d at 1238. The Court concluded that the decedent’s designation of beneficiaries was not a conveyance because it did not create an inter vivos or testamentary interest. Estate of Korn, supra at 164, 480 A.2d at 1238. This ruling, however, does not pertain to tentative trusts because the power involved in establishing a trust creates a future interest whereas decedent in Estate of Korn, supra, had only the power to designate a beneficiary. See id.

Moreover, the case at bar is distinguishable from Estate of Korn, supra, because decedent had the power to revoke Jean Inter’s interest in the two accounts whereas decedent in Korn had only the power to revoke a designation of beneficiaries rather than an actual interest. Accordingly, we hold that Estate of Korn, supra is not controlling in the area of tentative trusts.

Instantly, there is no question that decedent created a tentative trust. The decedent deposited his own funds in two accounts, a savings account and a checking account, to be held in trust for Jean Inter. The record reflects that these two accounts were not joint accounts but were trust accounts. See N.T. 7/26/93 at 32. The trust accounts were never revoked because the decedent did not manifest a clear intention to revoke. The passbooks to the trust accounts were in decedent’s home and therefore, remained in his possession until the time of death.

Pursuant to 20 Pa.C.S.A. § 2203(a)(3), appellee may elect against the tentative trust established by decedent. Decedent’s two accounts were property which was conveyed by the decedent during his lifetime. Decedent conveyed the two accounts to Jean Inter when he created a testamentary interest in the accounts for her. However, this conveyance was revocable by decedent as evidenced by the fact that both accounts were maintained by decedent and he had the power to dispose of the funds if he chose to do so. Furthermore, decedent had the ability to consume the principal of the two accounts which he did when he withdrew funds from the checking account. Hence, appellants’ assertion that appellee may not elect against the two accounts established by decedent is without merit.

In concluding that appellee has the right to elect against the two Seaman’s Bank accounts, we do not intend to suggest that the elective rights of a surviving spouse entirely supercede a beneficiary’s right to the balance of the trust. As this Court noted in a recent decision, “a tentative trust account may substitute for a will in effecting the transfer of property.” In re Estate of Stevenson, supra at 583, 648 A.2d at 562. Therefore, while appellee is entitled to her elective share of one-third of the balance remaining in the two Seaman’s Bank accounts, numbers 1-50001006 and 1C171009, Jean Inter’s estate is entitled to the two-thirds of each account.

Based on the foregoing, we conclude that the trial court properly held that appellee could elect against the two Seaman’s Bank accounts which were established by decedent in trust for Jean Inter. Additionally, the trial court properly disposed of the other issues raised by appellants in its opinion. Accordingly, the order of the Orphans’ Court is affirmed.

Order affirmed.

      . Appellants are the co-executors of their mother’s estate, Jean M. Inter, Deceased.

      . As Judge Wolfe properly noted, the exceptions filed on February 28, 1994 and those filed on June 7, 1994 were substantially the same, and therefore, the court did not repeat its adjudication of May 19, 1994.

      . Judge Wolfe granted in part appellants’ seventh exception. The court ordered the executrix to include the $1,500.00 she received for the "downed timber" as an asset of the estate.

      . Appellants’ second issue is addressed on pages eleven through fourteen of the trial court’s opinion; the third issue is disposed of on pages two through four; the fourth issue is addressed on page fifteen; and appellants’ final issue is discussed on pages ten and eleven.
      Moreover, regarding issue three, the returned premium and accrued interest on the Monarch life insurance policy, it is well-settled law in Pennsylvania that where premiums are returned, the right of recovery is vested in the person who paid them (the insured) or his assigns, and not in the designated beneficiary of the policy. See Fidelity-Philadelphia Trust Co. v. Bankers Life Ins. Co. of Nebraska, 370 Pa. 513, 88 A.2d 710 (1952); Infantino v. Quaker City Fire and Marine Ins. Co., 159 Pa.Super. 454, 48 A.2d 77 (1946).

      . Pursuant to 20 Pa.C.S.A. § 2201, a conveyance is “an act by which it is intended to create an interest in real or personal property whether the act is intended to have inter vivos or testamentary operation.” 20 Pa.C.S.A. § 2201.


author: TAMILIA, Judge:

text:
    664 A.2d 148
    Lorraine KELLY and James Kelly, H/W, Appellants v. METHODIST HOSPITAL and Joseph DeMichele, M.D. and John Doe # 1-10.
    Superior Court of Pennsylvania.
    Argued June 7, 1995.
    Filed Aug. 28, 1995.

      James H. Pickering, Jr., Philadelphia, for appellants.
    J. Michael Doyle, Philadelphia, for Methodist Hospital, appellee.
    Before McEWEN, TAMILIA and KELLY, JJ.
   TAMILIA, Judge:

This appeal follows the March 30, 1994 Order granting the Application for a Determination of Finality pursuant to Pa.R.A.P. 341 filed by James and Lorraine Kelly (appellants). The application was filed after the trial court granted the preliminary objections of Methodist Hospital (appellee) to certain paragraphs in appellants’ complaint.

On March 19, 1992, appellant-wife, Mrs. Kelly, underwent gallbladder surgery, performed by appellee-Dr. DeMichele, at appellee-Methodist Hospital. On August 30, 1993, appellants filed a medical malpractice action against appellees alleging various injuries to Mrs. Kelly’s heptic, bile and biliary ducts. The complaint alleged the following with regard to Methodist Hospital:

39. Pursuant to rule 15 of its Rules and Regulations for the Department of Surgery, Methodist required that patients must provide written informed consent before any surgical procedure (except in an emergency). Methodist prepared and/or adopted a specific form for the written consent titled “Consent to Surgical Procedures & Operations & Blood Transfusions.” Methodist did not establish, formulate, adopt or enforce any adequate rules, practices or policies to ensure that the physicians fully explain the potential risks involved in a particular operation and identify the possible complications.
40. Defendant Methodist was careless and negligent both generally and in the following respects:
c. Faffing to properly monitor and supervise the actions and conduct of physicians and patients concerning the process of obtaining the patient’s informed consent for surgical procedures;
d. Faffing to establish sufficient guidelines, policies, practices, or procedures to reasonably and properly set forth the nature and scope of the substantive information that should be disclosed by a physician to a patient at Methodist prior to the physician obtaining the informed consent of the patient for a surgical procedure;
e. Failing to provide adequate rules, procedures, guidelines or other information to implement Rule 15 of the Methodist Department of Surgery Rules and Regulations which requires that the patient be informed of “all the risks” of a surgical procedure.

(Appellants’ Complaint at 11-12.)

On September 24, 1993, appellees responded to these paragraphs by filing preliminary objections in the nature of a demurrer asserting that a hospital owes no duty to a patient regarding informed consent. The trial court agreed and by Order dated October 29, 1993 struck paragraphs 39, 40(c), (d) and (e) from appellants’ complaint. Thereafter, appellants’ motion for reconsideration was denied and the trial court deemed its Order final pursuant to Pa.R.A.P. 341(c). This appeal followed.

In considering preliminary objections in the nature of a demurrer, we must examine the complaint to determine whether it sets forth a cause of action which, if proved, would entitle a party to the relief sought; if such is the case, the demurrer may not be sustained, but if the complaint fails to set forth a cause of action, preliminary objections in the nature of a demurrer are properly sustained. Doe v. Dyer Goode, 389 Pa.Super. 151, 566 A.2d 889 (1989), alloc. denied, 527 Pa. 587, 588 A.2d 509 (1990); Rose v. Wissinger, 294 Pa.Super. 265, 439 A.2d 1193 (1982).

On appeal, appellants argue strenuously and at great length that they are not attempting to impose upon a hospital the duty of obtaining informed consent from patients. Rather, they claim the stricken paragraphs set forth a cause of action for corporate negligence based on the hospital’s failure to promulgate relevant “policies, practices or procedures” relating to informed consent. (Appellants’ Brief at 19.)

I. The Doctrine of Informed Consent
The appellate courts of this Commonwealth have historically interpreted the doctrine of informed consent as applying only to the surgeons who perform operations without first securing the informed consent of the patient. In determining whether the patient’s consent to a surgical operation was “informed,” one must consider whether the physician disclosed to the patient all of the facts, risks, and alternatives, which a reasonable person would deem significant in making a decision to undergo the recommended procedure. An operation performed without the patient’s informed consent constitutes a battery upon the patient, thus making the physician or physicians liable for any injuries regardless of whether the surgery was negligently performed.
Under normal circumstances only the physician who performs the operation on the patient has the duty of obtaining the patient’s informed consent. Therefore, Dr. Clough, who only performed the appellant’s pre-surgery physical examination, and Nurse Lockerman, who is not a physician, were under no duty to obtain the appellant’s informed consent to the operation.

Shaw v. Kirschbaum, 439 Pa.Super. 24, 653 A.2d 12 (1994) (citations omitted), quoting Foflygen v. Zemel, 420 Pa.Super. 18, 615 A.2d 1345 (1992), alloc. denied, 535 Pa. 619, 629 A.2d 1380 (1992).

Instantly, appellants sought to plead and prove that Methodist Hospital was negligent in failing to “ensure that physidans fully explain the potential risks,” (Appellants’ Complaint, Paragraph 39), and in failing to “set forth the nature and scope of the substantive information that should be disclosed” (Appellants’ Complaint, Paragraph 40(d)). Despite appellants’ vigorous denials, these paragraphs clearly attempt to impose upon a hospital duties which are every bit as extensive as the duty to obtain informed consent. Thus, appellants are attempting to assert an informed consent cause of action based on negligence. Such a theory does not constitute a viable cause of action in Pennsylvania.

As an intermediate appellate court, this Court is obligated to follow the precedent set down by our Supreme Court. In Gray v. Grunnagle [423 Pa. 144, 223 A.2d 663 (1966)], and Smith v. Yohe [412 Pa. 94, 194 A.2d 167 (1963)], our Supreme Court held that the patient’s consent is a prerequisite to a surgical operation and an operation without the patient’s consent is a battery. Recently, the Supreme Court has re-affirmed this long-standing precedent in Moure v. Raeuchle [529 Pa. 394, 604 A.2d 1003 (1992)]. Moreover, there have been numerous decisions of this Court, both panel and en banc, which have applied the rule set forth in Gray v. Grunnagle, supra, at 144, 223 A.2d 663, and Smith v. Yohe, supra, at 94, 194 A.2d 167 to informed consent cases. Levenson v. Souser [384 Pa.Super. 132, 557 A.2d 1081 (1989)]; Doe v. Dyer-Goode [389 Pa.Super. 151, 566 A.2d 889 (1989)]; Sagala v. Tavares [367 Pa.Super. 573, 533 A.2d 165 (1987)]; Sauro v. Shea, 257 Pa.Super. 87, 390 A.2d 259 (1978); Cooper v. Roberts, 220 Pa.Super. 260, 286 A.2d 647 (1971). Thus, we are compelled to analyze informed consent cases under a battery theory until and unless our Supreme Court decides to recognize an informed consent cause of action grounded in negligence. Levenson v. Souser, supra, at 132, 557 A.2d 1081.

Shaw, supra at 31, 653 A.2d at 15, quoting Foflygen, supra at 34, 615 A.2d at 1353.

With this in mind, we distinguish the case cited by appellants as the basis of their “corporate negligence” claim, Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991). In Thompson, a case not involving informed consent, our Supreme Court held a hospital owes the following duties to its patients:

(a) A duty to use reasonable care in the maintenance of safe and adequate facilities and equipment;
(b) A duty to select and retain only competent physicians;
(c) A duty to oversee all persons who practice medicine within its walls as to patient care; and
(d) A duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients.

Id. at 339, 591 A.2d at 707.

Since “we are compelled to analyze informed consent cases under a battery theory until and unless our Supreme Court decides to recognize an informed consent cause of action grounded in negligence,” Shaw, supra; Levenson, supra, at 132, 557 A.2d 1081, we decline appellants’ invitation to extend the negligence principles contemplated by Thompson to the case sub judice. The propriety of our conclusion is further buttressed by the fact both Shaw and Foflygen post-date Thompson. Lastly, in Friter v. Iolab, 414 Pa.Super. 622, 607 A.2d 1111 (1992), a case discussing Thompson, we noted, “[o]ur research failed to uncover any Pennsylvania authority for imposing an independent duty on a non-physician to obtain a patient’s informed consent.” Friter, supra at 627, 607 A.2d at 1113.

Beyond our conclusion Pennsylvania law does not recognize the cause of action asserted by appellants, we find compelling reasons for not imposing upon hospitals the duty of obtaining informed consent. It is the surgeon and not the hospital who has the education, training and experience necessary to advise each patient of risks associated with the proposed surgery. Likewise, by virtue of his relationship with the patient, the physician is in the best position to know the patient’s medical history and to evaluate and explain the risks of a particular operation in light of the particular medical history. Appellants’ attempt to impose upon a hospital the duty not only to “ensure” that physicians obtain informed consent but also to draft the “substantive information to be disclosed”, ignores these unique aspects of the physician-patient relationship. Moreover, we are unable to conceive of how a hospital could draft, in laundry-list fashion, “the substantive information to be disclosed” for each surgery as it relates to each patient. Thus, the approach suggested by appellants would prove not only improvident but unworkable as well.

We also reject appellants’ claim Methodist Hospital’s adoption of a regulation requiring that physicians obtain informed consent “constituted a voluntary assumption of the duty to have rules and regulations to ensure that there was an informed consent.” (Appellants’ Reply Brief at 7.) It is highly unlikely the hospital, in adopting its rule requiring that a written consent form be signed, intended to assume a duty greater than that imposed by law. The rule merely sought to increase the likelihood physicians would obtain informed consent. It was not intended to shift the burden of obtaining informed consent from the physician to the hospital nor does it obligate the hospital to guarantee a patient tenders informed consent.

Finally, we note that every jurisdiction which has considered the issue presented here has declined to impose upon hospitals the general duty to obtain informed consent. See e.g. Johnson v. Sears, Roebuck and Co., 113 N.M. 736, 832 P.2d 797 (Ct.App.1992), cert. denied, 113 N.M. 744, 832 P.2d 1223 (1992); Petriello v. Kalman, 215 Conn. 377, 576 A.2d 474 (1990) (rejecting appellants’ “corporate negligence” claim); Goss v. Oklahoma Blood Inst., 856 P.2d 998 (Okla.Ct.App. 1990); Howell v. Spokane & Inland Empire Blood Bank, 114 Wash.2d 42, 785 P.2d 815 (1990) (rejecting appellant’s “corporate negligence” claim); Kershaw v. Reichert, 445 N.W.2d 16 (N.D.1989); Krane v. St. Anthony Hosp. Systems, 738 P.2d 75 (Colo.Ct.App.1987) (hospital assumes no duty by adopting standardized consent form); Pauscher v. Iowa Methodist Med. Ctr., 408 N.W.2d 355 (Iowa 1987); Lincoln v. Gupta, 142 Mich.App. 615, 370 N.W.2d 312 (1985); Pickle v. Curns, 106 Ill.App.3d 734, 62 Ill.Dec. 79, 435 N.E.2d 877 (1982); Cross v. Trapp, 170 W.Va. 459, 294 S.E.2d 446 (1982).

Based on the foregoing, we find that paragraphs 39, 40(c), (d) and (e) of appellants’ complaint fail to state a cause of action. Therefore, they were properly stricken by the trial court’s Order of October 29, 1993.

Order affirmed.


author: TAMILIA, Judge.

text:
    664 A.2d 151
    COMMONWEALTH of Pennsylvania v. Patrick EISENFELDER, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 24, 1995.
    Filed Aug. 28, 1995.

      Jenny Steinen, Assistant Public Defender, West Chester, for appellant.
    Stuart B. Suss, Assistant District Attorney, West Chester, for the Commonwealth, appellee.
    Before McEWEN, TAMILIA and OLSZEWSKI, JJ.
   TAMILIA, Judge.

Patrick Eisenfelder, age 18, takes this appeal from the February 21, 1995 judgment of sentence entered following a bench trial in which he was found guilty of possession of marijuana, possession with intent to deliver and possession of drug paraphernalia. Immediately following trial, appellant was sentenced to serve two (2) years’ probation. The charges stem from the following findings as set forth by the Suppression Court.

Officer Scott Alexander of the East Brandywine-Wallace Township’s Police Department, was on “routine patrol” in Wallace Township. He was in uniform, and in a marked car. The time was 12:33 a.m., and Officer Alexander was proceeding down Chalfont Road in Wallace Township pursuant to his duty to promote peace and good order among the law-abiding citizens of East Brandywine and Wallace Townships. As Chalfont Road approaches Marsh Creek Lake, one passes from Wallace Township into a small parking lot in Upper Uwchlan Township. Officer Alexander was not sworn to uphold the law in Upper Uwchlan Township. Nevertheless, it was the custom of Wallace Township Officers to proceed into the small parking lot for the purpose of turning around and proceeding back out Chalfont Road.
While making this maneuver, Officer Alexander espied the Ford Escort. He was aware that Marsh Creek State Park was closed to visitors after dark, except for fishermen, and in keeping with what was apparently a long standing practice on his part, he decided to go up to the Ford Escort and see whether the occupants were fishing or not, and if not, to ask them courteously to leave.
As he approached the Escort, the driver’s side window was rolled down, the driver threw something from the car, and the window was rolled up again. Officer Alexander went to the driver’s side, and the window was rolled down again. Officer Alexander was immediately smitten with the overwhelming and distinctive odor of marijuana.
At some point, for his own safety, Officer Alexander asked the occupants to step from the car and keep their hands out of their pockets where he could see them. The occupants complied. Officer Alexander then went to his car and called in back-up both from his own township and from Upper Uwchlan Township. When the Upper Uwchlan Officers arrived, they placed the occupants of the Ford Escort under formal arrest. Patrick Eisenfelder was one of these occupants.

(Slip Op., Wood, J., 1/18/95, pp. 1-3.)

On appeal to this Court, appellant argues his motion to suppress should have been granted as the police officer did not have authority to enforce a summary violation of park rules outside of his primary jurisdiction. The detention, therefore, was illegal, and the evidence seized should have been suppressed.

The relevant statute at issue is set forth, in pertinent part, as follows:

(a) General rule. — Any duly employed municipal police officer who is within this Commonwealth, but beyond the territorial limits of his primary jurisdiction, shall have the power and authority to enforce the laws of this Commonwealth or otherwise perform the functions of that office as if enforcing those laws or performing those functions within the territorial limits of his primary jurisdiction in the following cases:
(5) Where the officer is on official business and views an offense, or has probable cause to believe that an offense has been committed, and makes a reasonable effort to identify himself as a police officer and which offense is a felony, misdemeanor, breach of the peace or other act which presents an immediate clear and present danger to persons or property.

42 Pa.C.S. § 8953(a)(5).

This Act is not among those statutes which must be strictly construed under the rules of statutory construction, but instead is subject to liberal construction to effectuate its objectives and to promote justice. Commonwealth v. McHugh, 413 Pa.Super. 572, 605 A.2d 1265 (1992). Specifically, one of the principle objectives to be obtained by this Act is to promote public safety while maintaining jurisdictional police lines. Commonwealth v. Merchant, 528 Pa. 161, 595 A.2d 1135 (1991). However, as our Supreme Court stated in Mer chant, “the General Assembly recognized that constructing impenetrable jurisdictional walls benefitted only the criminals hidden in their shadows.” Id. at 169, 595 A.2d at 1139.

We find the actions of the police officer in stopping and detaining appellant were authorized under section (a)(5) of the Act. In accordance with the Act, the officer was on “official business,” had probable cause that an offense had been committed and made a reasonable effort to identify himself as a police officer. In addition, the officer did not arrest appellant but merely detained him until the neighboring township police arrived. Appellant claims, however, the reason for the officer’s stop (a possible violation of state park regulations, which is a summary offense), is not an “offense which is a felony, misdemeanor, breach of the peace or other act which presents an immediate clear and present danger to persons or property.” Id.

While the facts reveal the officer originally stopped to investigate a potential violation of park regulations (a summary offense), he, in fact, detained appellant as the result of personally viewing him committing a misdemeanor, which clearly is within the parameters of the Act. The officer testified it is customary for the department to check parked cars after the park is closed (N.T., 1/12/95, p. 8). As he approached the car, he saw an object tossed out the window and as the driver rolled the window down, “smoke actually came from within the car [that smelled] like marijuana.” Id. at 9. This testimony provides sufficient evidence that the officer had probable cause to believe a misdemeanor had been committed, regardless of the purpose of his initial stop.

Moreover, were we to rule in appellant’s favor, our decision would greatly inhibit the future efforts of our Commonwealth’s law enforcement officials. As an illustration, our research reveals that North Park, which is located in Allegheny County, encompasses no less than three townships. For those officers, while on local patrol, to in effect ignore any park violations which occur across the non-delineated boundary lines because they are not of a predetermined magnitude or danger to other people leads to an absurd conclusion. Taking our analysis further, Allegheny County has 130 municipalities and almost as many police departments. The boundaries of the municipalities, hilly terrain, rivers and the confoluted roads makes it virtually impossible to effectively patrol most municipalities without crossing municipal boundaries. Public interest requires flexibility in pursuing criminals and investigating suspicious activity within the view of properly empowered police officers. Criminal activity does not respect municipal borders and to require police to curtail their actions in the face of observed suspicious or actual criminal behavior is to impose an unreasonable burden on the police and endow the criminal with an incredible advantage. Logic and sound legal principles dictate that an officer, while enforcing a summary offense across a township line in a park, is also empowered to act upon additional violations which he may witness after making the investigatory stop. There is no limitation on the number of scenarios whereby a stop for a summary offense could result in the discovery of far more serious criminal activities such as assaults, robberies, rapes or homicides. The stop for a summary offense cannot result in the suppression of the more serious criminal activity thereafter discovered, and we will not find otherwise just because there was a minor incursion across a municipal boundary.

We must construe this Act liberally to effectuate its objectives and promote justice. McHugh, supra, at 413 Pa.Super. 572, 605 A.2d 1265. Any other interpretation of the Act, given the facts presented, would not be in keeping with the legislative intent of the Act as espoused by our Supreme Court in Merchant. This holding also conforms to the aims described by this Court in Commonwealth v. Ebersole, 342 Pa.Super. 151, 492 A.2d 436 (1985), which, inter alia, are to promote a cohesive working relationship among municipal police departments. Id. at 153-55, 492 A.2d at 438. Accordingly, we find the officer did not violate the Act in stopping and detaining appellant until the proper authorities arrived, and the trial court did not err in denying appellant’s motion to suppress the evidence.

Judgment of sentence affirmed.

McEWEN, J., concurs in the result.

      . 35 P.S. § 780-113(a)(16).

      . Id., § 780-113(a)(30).

      . Id., § 780-113(a)(32).


author: POPOVICH, Judge: JOHNSON, Judge,

text:
    664 A.2d 154
    COMMONWEALTH of Pennsylvania, Appellant v. Emilio LOPEZ, Appellee.
    Superior Court of Pennsylvania.
    Argued June 15, 1995.
    Filed Aug. 29, 1995.

      Robin Godfrey, Assistant District Attorney, Philadelphia, for the Commonwealth, appellant.
    Gerald B. Ingram, Philadelphia, for appellee.
    Before POPOVICH, JOHNSON and HOFFMAN, JJ.
   POPOVICH, Judge:

The Commonwealth appeals the order of the Court of Common Pleas of Philadelphia County granting the motion to suppress of the defendant/appellee, Emilio Lopez. We reverse.

The suppression court made the following factual findings: At approximately 9:30 p.m. on the 30th of October, 1992, Philadelphia police officers Robert Fetters and Alberto Rodriquez were in an unmarked vehicle and observed a black male hand currency to a Hispanic male (later identified as Aponte) on the northeast corner of 7th and Butler Streets in exchange for an unidentified item. This prompted the police to locate themselves 30 to 40 feet from Aponte to witness a second black male exchange U.S. currency for a clear plastic vial produced from Aponte’s pocket.

Within minutes, Aponte made a hand-motion to the defendant situated 40 feet away on the south side of the street. The defendant reacted by opening the trunk to a 1979 white Cutlass and removing a tied-up plastic bag, approximately 2 inches in diameter, from its interior before handing the object to Aponte, who placed it on the bumper of a vehicle situated next to where he stood.

At this point, having observed these events at a distance of 30-50 feet, the police called for back-up to stop and detain the defendant and Aponte. Within minutes, the police exited their vehicle, approached the defendant standing next to the opened trunk of the 1979 Cutlass and “detained” him while Officer Fetters looked in the trunk and saw clear plastic bags on the floor of the vehicle containing vials with blue caps believed to hold crack cocaine.

The defendant was placed under arrest while Fetters’ partner retrieved a clear plastic bag from the vehicle next to Aponte, which was found to contain 18 clear plastic vials. In all, the police confiscated 5 bundles from the trunk, each containing 24 capsules. The defendant filed a motion to suppress the evidence seized “alleging that there was no probable cause to arrest and no probable cause to search or to seize.” The court agreed.

On appeal, the Commonwealth argues that the police either had probable cause to arrest, or, in the alternative, were legitimately in a place where they were allowed to be and observed a controlled substance in “plain view” warranting its seizure and the defendant’s subsequent arrest therefore.

Before embarking on an analysis of the Commonwealth’s arguments, we need to place some matters in perspective, one being the standard of review in matters of suppression (the weight to be given conclusions of law at odds with findings of fact) and the other being the scope of review in probable cause to search or arrest cases. Both topics were discussed by this Court in Commonwealth v. Albino, 438 Pa.Super. 562, 652 A.2d 953, 954 & 955 (1995); to-wit:

In reviewing an order granting a motion to suppress evidence, we must determine whether the factual findings of the suppression court are supported by evidence of record. In making this determination, we may consider only the evidence of the defendant’s witnesses and so much the Commonwealth’s witnesses as fairly read in the context of the record remains uncontradicted. If the evidence supports the factual findings of the trial court, we are bound by such findings, and we may reverse only if the legal conclusions drawn therefrom are erroneous.
[w]hen we examine a particular situation to determine if probable cause exists, we consider all the factors and their total effect, and do not concentrate on each individual element____ We also focus on the circumstances as seen through the eyes of the trained officer, and do not view the situation as an average citizen might.... Finally, we must remember that in dealing with questions of probable cause, we are not dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act. This is not the same ‘beyond a reasonable doubt’ standard which we apply in determining guilt or innocence at trial. [Emphasis in original; citations omitted]

Here, the suppression court found as a fact that the police, at a distance of 30-50 feet, observed Aponte engage in two transactions and both instances netted Aponte U.S. currency, while the latter exchange saw a transfer of a clear plastic vial for cash. This was followed by the defendant being directed by Aponte to cross the street but not before the defendant removed a tied-up plastic bag, approximately 2 inches in diameter, from the trunk of a vehicle and carry it to Aponte.

In addition, consistent with the precepts recited in Albino allowing for consideration of “so much of the Commonwealth’s witnesses [evidence] as fairly read in the context of the record remains uncontradicted, ” and viewing all of the evidence through the eyes of a trained policeman, we note that Officer Fetters opined that the exchanges involving Aponte and the two unknown males were “transaction^] of U.S. currency for crack cocaine.” N.T. 9/22/94 at 6. This was predicated upon the officer’s 7 years experience in this area, which was known “basically [as] a high drug-trafficking area” and a location where he had made prior drug arrests. Id. at 13.

The suppression court’s own findings of fact indicate that, after Aponte had engaged in two exchanges for cash (one for an unidentified item and the second for a clear plastic vial), the defendant reacted to Aponte’s hand-gesture by opening the trunk of a vehicle, removing a plastic bag, walking to Aponte and “hand[ing him] a tied-up bag, approximately two inches in diameter.” Court Opinion, 11/3/94 at 1 & 2; Findings of Fact Nos. 3, 4 & 7.

All of the police observations were made at a distance of 30 feet when the defendant transferred the plastic bag to Aponte, but the defendant was 50 feet from the police when he entered the trunk area and removed what Officer Fetters indicated was “a clear plastic bag” containing several vials with a white substance believed to be “crack cocaine.” N.T. 9/22/94 at 7-8.

The suppression court thought it “unreasonable to believe a balled up plastic bag would have been identifiable in the dark” given the distance (approximately 30-50 feet) between the police and the defendant. Court Opinion, 11/3/94 at 4-5. Yet, the court found as a fact that, at the same 40-50 foot distance and time, Aponte gave a black male a clear plastic vial for U.S. currency (Finding of Fact No. 3) and police observed the defendant walk toward Aponte and hand him “a tied-up bag, approximately two inches in diameter.” (Finding of Fact No. 7)

Albeit in matters of credibility the court, as the initial arbiter of believability, is to be given deference in this area, we are to accord a suppression court’s findings of fact credence if and when supported by the record. See Albino, supra; Commonwealth v. Jenkins, 401 Pa.Super. 580, 585 A.2d 1078, 1083 n. 4 (1991); cf. Commonwealth v. Stadtfeld, — Pa.Super.-, 665 A.2d 487, 491-492 (1995) (Appellate court not bound by the conclusions of law of the lower court absent evidence in support of the same).

Further, the court’s holding that the police lacked probable cause to conduct a warrantless arrest of the defendant and subsequent search of the trunk of his vehicle was tainted has its origin in the disbelief of the police’s “observation of] an exchange of a balled-up two inch plastic bag, between two unidentified Hispanic males[ — defendant and Aponte — ], with their naked eye in the dark.” Court Opinion, 11/3/94 at 4.

However, when Findings of Fact No. 3 (Aponte received U.S. currency from black male), No. 4 (Aponte exchanged clear plastic vial for U.S. currency from another black male) and No. 7 (Aponte received “a tied-up bag, approximately two inches in diameter” from the defendant) are at odds with the Conclusion of Law (holding that no probable cause to stop, arrest and search existed), we, as an appellate court, are not bound by such a conclusion. See Albino, supra; Jenkins, supra; see also Stadtfeld supra.

From our review of the entire record and uncontradicted testimony of the Commonwealth’s witnesses, we find that, although the police did not have probable cause to arrest the defendant prior to observing what was believed to be crack cocaine in the trunk of the 1979 white Cutlass, the police were presented with enough articulable facts to believe that criminal activity was afoot to “detain” the defendant consistent with a Terry stop and maintain the status quo while investigating further the circumstances to either dispel or confirm the presence of criminal activity. “ ‘[TJhere is no necessity that the police suspect that the person is armed and dangerous before a valid investigatory stop limited solely to questioning can be performed.’ All that need be shown is ‘a reasonable suspicion that criminal activity is afoot.’” Commonwealth v. Dennis, 289 Pa.Super. 305, 433 A.2d 79, 81 (1981).

Here, once the police had reached the defendant they “detained” him. As the defendant was situated next to the open trunk of the 1979 Cutlass, where the police had a legitimate right to be, they observed (as any member of the passing public could see) the content of the trunk and a “plain view” detection of several clear plastic bags. As articulated by Officer Fetters, he saw:

... a large clear plastic bag which contained five smaller sandwich-size bags. Each of the smaller bags had clear plastic vials with blue caps on them, all containing an off-white chunky substance. [The officer] believed this to be crack cocaine.

N.T. 9/22/94 at 9; see Jenkins, supra, at 580, 585 A.2d 1078 (Where the police are where they have a right to be, they need not avert their eyes from criminal activity viewable by the public at large).

Preceding the police’s approach and detention of the defendant, they observed what they believed were two drug transactions (conceded by the suppression court to be “more than enough probable cause for Aponte’s arrest,” see N.T. 9/22/94 at 34). Next, the defendant was observed removing a plastic bag from the trunk of a vehicle after receiving a hand-motion from Aponte. Then “[pjolice observed defendant walk to where Aponte was standing and hand Aponte a tied-up bag, approximately two inches in diameter.” Court Opinion, 11/3/94 at 2, Finding of Fact No. 7.

All of the aforementioned must be woven into a picture which contains as its backdrop knowledge by the 7-year veteran Officer Fetters that the area was .a high drug-trafficking location, and drug arrests had been made by the officer in the same area. Thus, it is this Court’s conclusion the police had observed enough facts to justify a “stop” of the defendant. See Dennis, supra (citing cases). Once the incriminating evidence (crack cocaine) had been sighted by the police, who had an unobstructed, plain view of the content of the trunk, the circle of probable cause had been completed and warranted the defendant’s arrest and subsequent seizure of the drugs.

To the extent that the suppression court’s conclusion of law (absence of probable cause to seize or arrest) is predicated upon findings of fact that would indicate the contrary, or at least a suspicion of criminal activity justifying a stop, we are not bound by legal conclusions drawn by the court below. As recited earlier, we hold that the police had reasonable suspension to believe that criminal activity was extant, the presence of which justified the defendant’s restraint and subsequent detection of drugs in “plain view” leading to probable cause to arrest the defendant. To the extent that the court’s ruling is at odds with the facts and permissible legal conclusions to be drawn therefrom, we reverse.

Order reversed.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

Because I find no error in the suppression court’s determination that the officers lacked probable cause to arrest Emilio Lopez, I must respectfully dissent.

This Court has stated that “an exchange of some unknown items between citizens in a public place, even a place known to be frequented by drug traffickers, does not, without more, establish probable cause to arrest those citizens.” Commonwealth v. Malson, 434 Pa.Super. 155, 161, 642 A.2d 520, 523 (1994). In the present case, at the suppression hearing, Officer Fetters testified that he and another officer were “working burglary detail” at 9:30 p.m. on October 30, 1992. He further testified that, while seated in an unmarked vehicle approximately 40 feet away from a man later identified as Aponte, he observed Aponte engage in two suspicious transactions with unidentified males. Subsequently, Officer Fetters observed Lopez reach into the trunk of a car, retrieve a “tied-up” plastic baggie that measured approximately two inches in diameter, cross the street, and hand it to Aponte. He made this observation in the dark, without the use of binoculars. Officer Fetters observed no exchange of currency between Lopez and Aponte. Although Officer Fetters observed an exchange of currency between Aponte and each of the two unidentified males, those exchanges cannot be used to form probable cause as to Lopez. See Commonwealth v. Kearney, 411 Pa.Super. 274, 279, 601 A.2d 346, 348 (1992) (although reasonable suspicion existed, officers had no probable cause to arrest appellant without a warrant where appellant was standing next to a person who officers believed was engaged in selling drugs). Further, the officer had no information that Lopez was a known drug dealer, nor was he responding to any citizen complaints concerning drug activity at that location on that date. In addition, Officer Fetters testified that, although he had worked in the area for seven years and made numerous narcotics arrests there, he had never seen Aponte or Lopez prior to this occasion. Moreover, there is no indication in the record that Lopez acted in a suspicious manner or attempted to flee when the officers approached him. Finally, Officer Fetters had no information that the vehicle involved had been used for the distribution of narcotics.

Based upon these facts, the suppression court determined that the officers did not have probable cause to arrest Lopez. Accordingly, the court concluded that the officers’ search of the trunk was illegal. See also In Interest of J.H., 424 Pa.Super. 224, 229, 622 A.2d 351, 354 (1993) (“[W]here probable cause to arrest does not exist, any evidence seized in a search incident to arrest must be suppressed.”). Because I find no error in the trial court’s conclusion, I would affirm the order that granted Lopez’ motion to suppress. Cf. Commonwealth v. Malson, supra, at 155, 642 A.2d 520 (no probable cause to arrest where an officer witnessed two men exchange unidentified objects at 9:00 p.m. from a distance of 50 feet away without binoculars); Commonwealth v. Agnew, 411 Pa.Super. 63, 600 A.2d 1265 (1991) (no probable cause to arrest where an officer could not identify objects exchanged and had no prior information or reason to believe that appellant would be engaging in a drug transaction).

      . The Commonwealth, in its statement of jurisdiction, certifies that the suppression order substantially handicaps or effectively terminates its prosecution of the case. This permits appellate review of the suppression order. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


author: CIRILLO, Judge:

text:
    664 A.2d 159
    Irene BIDDLE and Betty McConahy Executrices of the Estate of Eugene P. Kensinger, Late of Duncansville, Blair County, Pennsylvania, Deceased, Appellants, v. Shirley JOHNSONBAUGH and Donald E. Hileman.
    Superior Court of Pennsylvania.
    Argued June 13, 1995.
    Filed Aug. 29, 1995.

      T. Dean Lower, Hollidaysburg, for appellants.
    Steven P. Passarello, Hollidaysburg, for Shirley Johnsonbaugh, appellee.
    Before CIRILLO, FORD, ELLIOTT and HESTER, JJ.
   CIRILLO, Judge:

Irene Biddle and Betty McConahy, executrices of the estate of Eugene P. Kensinger, deceased, appeal from the order entered in the Court of Common Pleas of Blair County, denying their motion to remove a compulsory nonsuit. We affirm.

In May of 1984, Donald Hileman and Shirley Johnsonbaugh, brother and sister respectively, entered into an oral agreement with their mother and stepfather, Mr. and Mrs. Eugene P. Kensinger. The agreement provided that Johnsonbaugh and Hileman would “provide for” and “take care of’ Mr. and Mrs. Kensinger for the rest of their lives and not put Mrs. Kensinger in a nursing home. In return, Mr. and Mrs. Kensinger would deed their $70,000.00 house and lot to Johnsonbaugh and Hileman. At the time the agreement was entered into, Mr. and Mrs. Kensinger’s health had been deteriorating. Mr. and Mrs. Kensinger subsequently performed in full by deeding their property over to Hileman and Johnsonbaugh on May 8, 1984, wherein they each received an undivided one-half interest.

At the time the agreement was entered into, Hileman was living in California and Johnsonbaugh resided in the Kensinger’s immediate area. In September, 1984, with Hileman’s and Johnsonbaugh’s affirmative participation, Johnsonbaugh’s son and daughter-in law entered into a separate agreement with Mr. and Mrs. Hileman, whereby they agreed to move into the house and take care of the Kensinger’s in return for some personal items after they died. This agreement, however, is not at issue. Mrs. Kensinger subsequently passed away in October, 1984.

Eugene Kensinger died in 1987, and on April 4, 1990, Irene Biddle and Betty McConahy, his sisters and executrices of his estate, filed a complaint seeking damages for violation of a close and confidential relationship or breach of contract against Johnsonbaugh and Hileman. They also alleged that Johnsonbaugh and Hileman failed to perform on the oral agreement discussed above. Testimony was heard in the case on September 29 and 30, 1994. At the conclusion of Biddle and McConahy’s case, opposing counsel for Johnsonbaugh orally moved for a compulsory nonsuit pursuant to Pennsylvania Rule of Civil Procedure 230.1. By an order dated September 30, 1994, the Honorable Hiram E. Carpenter granted the motion for compulsory nonsuit as to both Hileman and Johnsonbaugh.

Biddle and McConahy, pursuant to Pennsylvania Rule of Civil Procedure 227.1(c), filed a post-trial motion to remove the compulsory nonsuit, which was subsequently denied. They then filed a notice of appeal to this court. On appeal, McConahy and Biddle present two questions for this court to review:

(1) Did the Plaintiffs introduce sufficient evidence, on a Motion for Compulsory Nonsuit, to show that the Defendants took advantage of a close and confidential relationship with the Kensingers when they entered into an agreement to convey their $70,000.00 property?
(2) Did the Plaintiffs introduce sufficient evidence, on a Motion for Compulsory Nonsuit, to show that Defendants failed to perform and fulfill their obligation to the Kensingers under the agreement in a manner that was reasonably expected from the conveyance of a property worth $70,-000.00?

An appeal does not lie from the entry of a judgment of compulsory nonsuit, but rather from a refusal to take it off; this rule applies to actions in both law and equity. Steiner v. Lurie, 308 Pa.Super. 295, 296, 454 A.2d 138 (1982). Here, Biddle and McConahy properly filed their notice of appeal from the order denying their motion to remove the compulsory nonsuit.

The standard of review regarding the propriety of entry of compulsory nonsuit is that it is proper only if the factfinder, viewing all the evidence in favor of the plaintiff, could not reasonably conclude that the essential elements of a cause of action have been established. Orner v. Mallick, 432 Pa.Super. 580, 584, 639 A.2d. 491, 492 (1994); see also American States Ins. Co. v. Maryland Casualty Co., 427 Pa.Super. 170, 628 A.2d 880 (1993). Furthermore, a judge or jury cannot be permitted to reach a decision on the basis of speculation or conjecture. Cruet v. Certain-Teed Co., 432 Pa.Super. 554, 557, 639 A.2d 478, 479 (1994).

Biddle and McConahy first contend that Hileman and Johnsonbaugh took advantage of a close and confidential relationship with Mr. and Mrs. Kensinger by allegedly inducing them to enter into the agreement to convey their $70,-000.00 property. The trial court did not determine the existence of this relationship, and Biddle and McConahy rely on Hileman’s statement at trial that a close and confidential relationship did, in fact, exist. This statement alone, however, is not sufficient to meet their burden of proof.

A contract may be set aside or rescinded if it can be proven that, at the time of formation of the agreement, the parties did not bargain at arm’s length. Frowen v. Blank, 493 Pa. 137, 145, 425 A.2d 412, 416 (1981); see also Ruggieri v. West Forum Corp., 444 Pa. 175, 282 A.2d 304 (1971); Young v. Kaye, 443 Pa. 335, 279 A.2d 759 (1971); Iron Worker’s Savings & Loan Assoc. v. IWS, Inc., 424 Pa.Super. 255, 622 A.2d 367 (1993). One way to show that the parties’ did not bargain at arms’ length is to demonstrate that the parties were engaged in a confidential relationship at the execution of the agreement. Frowen, 493 Pa. at 145, 425 A.2d at 416; see generally 17 C.J.S. Contracts § 184 (1963).

A confidential relationship is any relationship existing between parties to a transaction wherein one of the parties is bound to act with the utmost good faith for the benefit of the other party and can take no advantage to himself from his acts relating to the interest of the other party. In Re Estate of Mihm, 345 Pa.Super. 1, 7, 497 A.2d 612, 615 (1985). “[A] confidential relationship is not limited to any particular association of parties but exists wherever one occupies toward another such a position of advisor or counsellor as reasonably to inspire confidence that he will act in good faith for the other’s interest.” Brooks v. Conston, 356 Pa. 69, 76, 51 A.2d 684, 688 (1945). On one side of a transaction, there is an overpowering influence and, on the other, a weakness, dependence or trust. Frowen, 493 Pa. at 145, 425 A.2d at 416.

A confidential relationship is deemed to exist as a matter of law between a trustee and cestui que trust, guardian and ward, attorney and client, and principal and agent. Mihm, 345 Pa.Super. at 8. 497 A.2d at 615. In other cases, however, as between parent and child or brother and sister, the existence of a confidential relationship is a question of fact to be established by the evidence. Id. (citing Null’s Estate, 302 Pa. 64, 153 A. 137 (1930)). The mere existence of kinship, however, does not give rise to a confidential relationship, but is a factor to be considered. Id.

Once a confidential relationship is found to exist, the law presumes the transaction voidable. At that point, the party seeking to sustain the validity of the transaction must affirmatively demonstrate that the contract or transaction was “fair, conscientious and beyond the reach of suspicion.” Leedom v. Palmer, 274 Pa. 22, 25, 117 A. 410, 411 (1922); see also Frowen, 493 Pa. at 148, 425 A.2d at 418; Ruggieri, 444 Pa. at 180, 282 A.2d at 307; Iron Worker’s, 424 Pa.Super. at 270, 622 A.2d at 375. More precisely, the proponent of the contract must prove by clear and convincing evidence “that the contract was free, voluntary and an independent act of the other party, entered into with an understanding and knowledge of its nature, terms and consequences----” Kees v. Green, 365 Pa. 368, 375, 75 A.2d 602, 605 (1950).

This analysis was employed by the Pennsylvania Supreme Court in Frowen v. Blank, supra, at 137, 425 A.2d 412. There, Blanche Frowen executed an agreement to sell to J. Marshall Blank her seventy acre farm for the sum of $15,-000.00. At the time of the sale, Mr. Blank paid to Ms. Frowen $500.00. The agreement provided that Mr. Blank was to pay the balance of the purchase price, $14,500.00, no later than one year following the death of Ms. Frowen. Interest computed at the rate of five percent per annum was to be paid quarterly on the unpaid balance. Frowen, 493 Pa. at 141, 425 A.2d at 414.

Approximately five years after the execution of the agreement of sale, Ms. Frowen filed an action in equity, seeking the rescission of the contract. The trial court determined that no confidential relationship had been established. This court affirmed the trial court’s decision, and the Supreme Court granted review to determine, inter alia, whether the record established a confidential relationship between Ms. Frowen and Mr. Blank. Id. at 141-43, 425 A.2d at 414-15.

After reviewing the record, the Court found that a confidential relationship existed between the parties. In so finding, the Court placed great emphasis on the following facts and circumstances. At the time of the transaction, Ms. Frowen was eighty-six years old, suffered from a loss of hearing and sight, had no more than two or three years of formal education and little knowledge of business matters, and had been living alone on her farm when Mr. Blank and his wife purchased the property adjoining Ms. Frowen’s property. After the Blanks moved onto their adjoining property, the parties immediately developed a close social relationship. Regarding the sale of the farm, Ms. Frowen did not discuss the agreement of sale with anyone other than Mr. Blank and his attorney. At the time of the sale, the market value of the farm was approximately $35,000.00. Id. at 146-48, 425 A.2d at 417-18.

The facts in Frowen are clearly distinguishable from those presented in this case. Here, Biddle and McConahy failed to offer sufficient evidence to support the finding of a close and confidential relationship. Although Mr. and Mrs. Kensingers’ health had been deteriorating at the time the agreement was entered into, there is no evidence that they were not fully capable of understanding their actions and consequences. In addition, there is nothing in the record which supports a finding that the Kensingers were so weak and frail that Hileman and Johnsonbaugh took advantage of them and induced them to enter into the agreement.

As Judge Carpenter pointed out in his opinion, “just because the Kensingers’ were old and ill, does not mean that they lose their right to engage in a transaction with their children.” Because Biddle and McConahy failed to offer sufficient evidence to prove the existence of a close and confidential relationship, it was unnecessary for them to affirmatively demonstrate that the agreement was fair and beyond the reach of suspicion. Frowen, supra, at 137, 425 A.2d 412. We find, therefore, that the oral agreement between the Kensingers and Hileman and Johnsonbaugh cannot be rescinded based on a breach of a confidential relationship. Frowen, supra; Brooks, supra, at 356 Pa. 69, 51 A.2d 684.

Biddle and McConahy additionally contend that Hileman and Johnsonbaugh failed to perform their obligations under the agreement in a manner that was reasonably expected. Under ordinary contract law, contracts are enforceable when parties reach mutual agreement, exchange consideration and have set forth terms of their bargain with sufficient clarity. First Home Savings Bank v. Nernberg, 436 Pa.Super. 377, 386, 648 A.2d. 9, 14 (1994). Additionally, an agreement is definite if it indicates that parties intended to make a contract and if there is an appropriate basis upon which a court can fashion a remedy. Id. Moreover, when the language of the contract is clear and unequivocal, courts interpret the meaning by its content. Id.

Applying these elements to the instant case, it is clear that an enforceable agreement existed between the parties. Judge Carpenter stated that an agreement did exist, but that the issue was whether or not the agreement was breached by Hileman and Johnsonbaugh.

Biddle and McConahy contend that Hileman and Johnsonbaugh failed to provide for Mr. and Mrs. Kensinger in a way that was reasonably expected by them. They offer no evidence, however, which supports this contention. When Mr. and Mrs. Kensinger entered into the agreement, they wanted to be “provided for” and “taken care of’ the rest of their days. Nothing in the record shows that this did not occur. To the contrary, Biddle and McConahy provided evidence that Mr. and Mrs. Kensinger received visitors and there was always someone there taking care of them. There was no evidence presented that Mr. and Mrs. Kensinger were being neglected or abused, or that they were not cared for or fed.

Biddle and McConahy placed extreme emphasis on the fact that Hileman and Johnsonbaugh were not the ones actually providing these services. However, we agree with the trial court that the agreement did not require the personal services of Hileman and Johnsonbaugh. The agreement merely stated that Mr. and Mrs. Kensinger would be “provided for” and “taken care” of and that Mrs. Kensinger would not be put into a nursing home. All of these provisions were satisfied. Nothing in the agreement, or actions of the parties reveal that in order for Mr. and Mrs. Kensinger to be provided for, Hileman and Johnsonbaugh had to be present every day. Mr. and Mrs. Kensinger knew at the time the agreement was executed that Hileman was returning to California where he lived, and that Johnsonbaugh would be working every day. It is also clear that Johnsonbaugh’s son and daughter-in-law were to take care of Mr. and Mrs. Kensinger in Hileman and Johnsonbaugh’s absence pursuant to the separate agreement.

We conclude, therefore, that Biddle and McConahy failed to establish the essential elements of their cause of action, and we agree with the trial court that their motion for removal of the compulsory nonsuit was properly denied. Orner, supra, at 432 Pa.Super. 580, 639 A.2d 491.

Order affirmed.

      . Confidential relationship, as used throughout this opinion, is distinguishable from undue influence. While the two terms are sometimes used interchangeably, the latter is used mostly in will contests, and the former is employed most often in contract disputes. Furthermore, one can be in a confidential relationship without exerting undue influence, just as undue influence can be exerted by one not in a confidential relationship. In Re Estate of Treitinger, 440 Pa. 616, 622, 269 A.2d 497, 499 (1970); Brooks, 356 Pa. at 76-77, 51 A.2d at 688.


author: POPOVICH, Judge:

text:
    664 A.2d 164
    In the Interest of Q.J.R., a Minor. Appeal of D.R.
    Superior Court of Pennsylvania.
    Argued June 15, 1995.
    Filed Aug. 29, 1995.
    Reargument Denied Oct. 27, 1995.

      Sylvia Hahn, Scranton, for appellant.
    Ronald J. Worobey, Dunmore, (submitted) for appellee.
    Before POPOVICH, JOHNSON and HOFFMAN, JJ.
   POPOVICH, Judge:

We are asked to review the order of the Court of Common Pleas of Lackawanna County, Orphans’ Court Division, terminating the parental rights of the appellant, D.R. We affirm.

The record indicates that the removal of the appellant’s three children, the youngest of whom (Q.J.R., born July 16, 1989) is the object of this appeal, by the police from the appellant’s household prompted a hearing and resultant order dated July 23, 1990, placing the siblings in the custody of Lackawanna County Children and Youth Services (CYS).

The award of custody to CYS was premised upon the inability of the police to locate the appellant on the day the children were removed from her residence, her usage of drugs interfered with her parenting, the children being left with an inappropriate caretaker and dressed inadequately, as well as the appellant not providing a proper supply of food for the children.

Four hearings were held, spanning August of 1990 through February of 1992, at which the CYS caseworker assigned to assist the appellant reported that she was not cooperating, was inconsistent with child visitation, had little understanding of the children’s needs or how to care for them.

Further, over the two-year period in which CYS had sought as its goal to reunite the family, the appellant had enrolled in three drug programs, but she failed to complete any. And, when the appellant ceased her visitation of the children in May of 1992, without proffering any reason as to why or her whereabouts, CYS scheduled a hearing for August 7,1992. At that time, the goal of CYS changed from one of “placement” to “adoption” of Q.J.R. because he needed a permanent living arrangement and his developmental delays (having been born a “crack” baby) addressed.

In January of 1993, CYS filed a petition seeking to terminate involuntarily the parental rights of the appellant to the minor-child, Q.J.R. Four hearings were held (between June 30, 1993, and March 11, 1994) before a Hearing Master entered findings of fact and conclusions of law recommending that termination would serve the “best interests” of the child, and the appellant exhibited a “settled purpose” to relinquish her parental claim for a period of at least six months or failed to perform parental duties for the same period. See 23 Pa.C.S.A. § 2511(a)(1). The appellant’s exceptions were denied by the court which adopted the Master’s recommendation and terminated the appellant’s parental rights to Q.J.R. This appeal followed and raises five issues for our review which, when distilled, argue against the termination order as unwarranted under the particular facts of this case when viewed against the backdrop of the applicable law. We disagree.

In this jurisdiction, to terminate parental rights involuntarily, a petitioner must establish the statutory elements by at least clear and convincing evidence. Santosky v. Kramer 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Adoption of Sabrina, 325 Pa.Super. 17, 472 A.2d 624, 626 (1984). The statutory basis for termination in the present case was 23 Pa.C.S.A. § 2511(a)(1), which provides:

§ 2511. Grounds for involuntary termination (a) General rule. — The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(1) The parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.

A “court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child.” 23 Pa.C.S.A. § 2511(b). Further, our cases are clear that:

A child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child. Thus, this court has held that the parental obligation is a positive duty which requires affirmative performance.
This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child.
Because a child needs more than a benefactor, parental duty requires that a parent ‘exert himself to take and maintain a place of importance in the child’s life.’.

In re Burns, 474 Pa. 615, 379, A.2d 535, 540 (1977) (Citations omitted). Therefore, it is not enough to contribute to the support of a child as required by a court order. A parent is required to exert a sincere and genuine effort to maintain a parent-child relationship; the parent must use all available resources to preserve the parental relationship and must exercise “reasonable firmness” in resisting obstacles placed in the path of maintaining the parent-child relationship. In re J.L.Z., 492 Pa. 7, 421 A.2d 1064, 1065 (1980); In re Baby Boy P., 333 Pa.Super. 462, 482 A.2d 660, 664 (1984). This means that a parent can no longer claim relief from the responsibility of parenthood due to an inability to fulfill that function. The child, in the meantime, will grow and will need nurturing, care, attention and stability if it is not to suffer irreversible damage from neglect however occasioned. In re Adoption of Michael J.C., 506 Pa. 517, 486 A.2d 371 (1984); Matter of K.L.P., 354 Pa.Super. 241, 511 A.2d 852, 854 (1986).

The appellant would have this Court find that her drug addiction was an impediment to carrying out her parental duties for a period of six months immediately preceding the involuntary termination of her parental rights to Q.J.R. Also, she argues that her individual effort to deal with her drug addiction is reflective of her continuing desire to be a party of Q. J.R.’s life and should be rewarded by voiding the termination order. The appellant’s argument, however, dissipates under the light of scrutiny.

To start with, Q.J.R. and his siblings were placed in the custody of CYS after the appellant neglected to perform essential parenting skills: inadequate food; inappropriate clothing; inappropriate caretaker; and absenting herself from the home. Further, once Q.J.R. was removed from the appellant’s care (July 23, 1990) until a hearing on August 7, 1992 (wherein the goal of CYS was changed to adoption), the appellant had visited the child on sixteen occasions. Even then, some of the visits started late and ended early because of the appellant’s tardiness. Additionally, there was “minimal cooperation” during the visits and the “contacts were not all that wonderful,” so testified the CYS caseworker assigned to oversee the case.

Next, it is to be noted that six-month review hearings were scheduled to assess the appellant’s progress in parenting and combating addiction from August 17, 1990, until August 7, 1992. At the hearings, the CYS caseworker reported that the appellant had been “discharged for non-compliance” from three drug and alcohol treatment programs, often showing “minimal involvement” in the treatment process. Also, the appellant never wanted CYS’ help in finding appropriate housing, even though this resulted in the appellant staying with her mother, who likewise suffered from a severe drug and alcohol addiction.

Lastly, after May 7, 1992, the appellant maintained no contact with Q.J.R. in any fashion whatsoever. It was not until CYS filed its petition seeking involuntary termination in January of 1993 that the appellant contacted CYS to note her objection to the termination. At no time did the appellant inquire as to QJ.R.’s health or welfare, nor were any gifts, cards or phone calls received from the appellant for the child. It was the appellant’s contention that she left the Scranton area and travelled to Philadelphia and located a drug treatment program (“One Day At A Time”) that satisfied her need for intense supervision, something she claims she was not receiving with the “out-patient” drug treatment programs in Lackawanna County.

The appellant testified that the Philadelphia program ranged from six to twelve months, the first two of which required a total “black-out” of relatives and family members to focus on oneself and not be distracted by matters which may have contributed to the addiction and risk the likelihood of non-recuperation. As a result, the appellant elected to keep her whereabouts a secret from CYS and her immediate family for almost fourteen months. Except, as noted earlier, after receiving notice of the petition to terminate, the appellant phoned CYS to advise that she was in Philadelphia, but she neglected to state the purpose of her stay or where she could be reached. No inquiry was made of Q.J.R. The appellant merely indicted that she objected to the petition to terminate and the goal of adoption.

At no time during the appellant’s hiatus from the Scranton area did she communicate with CYS regarding QJ.R.’s welfare, nor was any symbol (gifts or cards) of familial concern forwarded by the appellant to CYS for Q.J.R.’s benefit. This lack of concern was also evidenced by the appellant’s admission that she was unaware of the name of Q.J.R.’s attending physician or the school district which oversaw his education.

It is true that where obstacles are raised as a barrier to a parent interacting with his/her child, the court will keep an open ear to listen to the efforts expended to hurdle the obstructions to parental bonding and performance of parental duties in rearing children. See In re Shives, 363 Pa.Super. 225, 525 A.2d 801, 803 (1987). Stated otherwise:

... [I]t is incumbent upon a court, before it terminates the rights of a noncustodial parent, to consider carefully the noncustodial parent’s explanation, if any, for his or her apparent neglect. Only where the totality of the circumstances demonstrates clearly and convincingly that a parent has refused or failed to perform parental duties for a minimum period of six months may an order be entered terminating parental rights. In re Santelia, 318 Pa.Super. 413, 417, 465 A.2d 21, 23 (1983). The pertinent inquiry is not the degree of success a parent may have had in reaching the child, but whether, under the circumstances, the parent has utilized all available resources to preserve the parent-child relationship. In re Adoption of Faith M., supra 509 Pa. at 245, 501 A.3d at 1108.

Id. at 230, 525 A.2d at 803.

It is uncontroverted in this case that the appellant did not have a personal or even verbal contact with her son for a period covering almost fourteen months. During this same period, the appellant did not write, telephone or see her son. In explanation, the appellant offers her drug addiction as an insurmountable obstacle she has been attempting to hurdle as justification or excuse for cessation of parental responsibilities for the six-month statutory period required as a prerequisite to termination. If we condone such an apparent cavalier reason, we would fail to take into account the totality of the circumstances attendant to the appellant’s efforts in making strides toward becoming a vital part of her child’s life. In re Adoption of Ostrowski, 324 Pa.Super. 216, 471 A.2d 541 (1984).

We will not ascribe some talismanic quality to the appellant’s efforts to rid herself of an insidious drug addiction, especially in light of the fact that the appellant was dismissed from three drug treatment programs for non-compliance with their rules and regulations, and then absconding without notice to Philadelphia to seek treatment all the while never extending the courtesy to advise CYS or maintain contact with Q.J.R. during her fourteen-month odyssey to Philadelphia. This type of behavior is reflective of immaturity, self-centeredness and a character devoid of concern for the health and welfare of her child, Q.J.R.

The appellant admitted that her main concern was to overcome her addiction, never giving any consideration to the impact of her absence or lack of communication upon the child. Even the spiritual director at “One Day At A Time” indicated that it was merely recommending that admittees to the program not interact with their family members if they were a cause of or contributed to the drug addiction. First, there is no indication that the minor-child Q.J.R. either caused or contributed to the appellant’s drug problem, nor is there any proof that indirect communication (either by letters or cards) with the child would have had a deleterious effect upon the appellant’s efforts to control her addiction. Second, the effort expended by the appellant to contact CYS in Scranton to advise it of her whereabouts would have been minimal and reflective of a concern for her child had her presence been required for emergency purposes. She chose to distance herself from Q.J.R. for an inordinate period of time without advising anyone of her whereabouts or intentions regarding Q.J.R. This behavior would not be condoned in any parent, and it will not be sanctioned in someone dealing with a chemical dependency. The avenues available for the appellant to pursue in seeking to control her addiction did not justify distancing herself from Q.J.R. without notifying the authorities (CYS) where she could be contacted or merely the purpose of her absence. This cannot be condoned under the guise of seeking drug rehabilitation.

We find that the appellant’s overall behavior, encompassing more than three years, is not indicative of one seeking to carryout her parental responsibilities. The appellant still had a responsibility to play an active and meaningful role in her child’s life. She appears to have left that obligation at the steps of the Philadelphia drug treatment door. Such behavior was not appropriate in this case and merely added to the justification found by the Master and affirmed by the court in terminating the appellant’s rights to the minor-child, Q.J.R. No argument has been proffered to hold otherwise.

Order affirmed.

JOHNSON, J., concurs in the result of this opinion.

      . The two oldest children (Quintín and Quintasia) were fathered by one other than T.J.Y., Q.J.R.’s father.