author: POPOVICH, Judge: SPAETH, President Judge,

text:
    473 A.2d 1069
    Miriam BELL, Appellant v. Henry M. BELL.
    Superior Court of Pennsylvania.
    Argued Oct. 11, 1983.
    Filed March 16, 1984.

      Albert Momjian, Philadelphia, for appellant.
    David W. Wood, Jr., West Chester, for appellee.
    Before SPAETH, President Judge, and MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an Order of the Court of Common Pleas of Chester County sustaining appellee’s, Henry M. Bell’s, preliminary objections to appellant’s, Miriam Bell’s, Complaints in Equity and Declaratory Judgment. We affirm.

The court below denied appellant’s request for the issuance of an injunction restraining the appellee from obtaining a divorce in Nevada. Therefore, the sole issue is whether appellee has established such a domicile in Nevada having once lived in Pennsylvania.

In making that inquiry the material to be examined is the record presented, which consists of appellee’s preliminary objections and answer, briefs of counsel, a deposition and interrogatories. See Commonwealth ex rel. Esenwein v. Esenwein, 348 Pa. 455, 35 A.2d 335 (1944), cert. denied, 321 U.S. 782, 64 S.Ct. 639, 88 L.Ed. 1075 (1944). We also note that since the lower court’s Order regarding appellee’s domicile is premised upon record evidence, i.e., no credibility determination or weight to be attached to a witness’ testimony was required inasmuch as no witnesses testified before the trier of fact. Therefore, since the finding of fact (domicile) was simply a deduction from other facts and the ultimate fact in question is purely a result of reasoning, this Court may draw its own inferences and arrive at its own conclusions from the facts as established. In re Estate of McKinley, 461 Pa. 731, 734 n. 1, 337 A.2d 851, 853 n. 1 (1975).

The facts are somewhat unusual, and, as a result, will be recited at some length.

Henry and Miriam Bell were married in December of 1935 in Pennsylvania and lived in various locations throughout the Commonwealth until 1950. Thereafter, between 1950 and 1970, Henry Bell, while on assignment for Gulf Oil Corporation as its oil refinery advisor, lived with his family in Venezuela. During this 20-year hiatus, the Bells retained a mailing address and home in Media, Pennsylvania, until it was sold sometime in 1956 and another was purchased (farmhouse and acreage) in 1959 in Landenberg, Pennsylvania.

It was customary for the Bells to return to Pennsylvania about once a year, for a period ranging from one to two months, to vacation at their home in Media and, later on, in the Landenberg farmhouse. The Bells also acquired two homes in Florida. The first was purchased in 1969 “as a hedge against inflation” and was being rented. The second was ordered built by Mrs. Bell and was “where [they] went when [Henry] took retirement in 1970” from Gulf. However, Henry did not stay retired for long. After two months of living in Florida, he asked for, and received, his former job with Gulf. This time, however, the assignment was in South Korea working for a Gulf subsidiary — Korean Oil Company. Mrs. Bell did not join her husband in Korea until 1972. From 1972 to 1975, the Bell family lived overseas and made periodic visits to the United States by coming to Pennsylvania.

In 1975, Mrs. Bell “returned to the U.S. with [her] daughter to live in the Pennsylvania farm. That was [her] purpose. [Since the original house, a barn and a number of acres were sold, the two] took an apartment the first year while [another] house was being built [on the remaining portion of the farm property.]” Mr. Bell retired from Gulf on July 1, 1975 and joined his family thereafter. All of his belongings were also shipped to the Landenberg address and transferred into the new residence upon completion. Nonetheless, as with his prior trip to Florida, Mr. Bell’s respite was short-lived. Aside from a note found on his daughter’s pillow, Mr. Bell exited the premises “around November 17, 1975,” without a word to his family and went to his former job in Korea.

The next time Mrs. Bell saw her husband “was in April— spring vacation in 1977 ____ He just came to the door.” He remained for a month and discussed retiring to Pennsylvania in the Spring of 1978. When Mr. Bell returned in March of 1978, again on his vacation, he signed up for social security and gave his address as the farmhouse at P.O. Box 113, Landenberg, Pennsylvania. Thereafter, he left for Korea and returned in August of 1978 to retire.

Mr. Bell gave the appearance that he was serious this time. He moved into the Landenberg farmhouse, gave this address to Gulf, his bank (Provident National in Media) and the Pennsylvania Department of Transportation. However, when his attempt to secure a franchise from three fast-food chains proved unsuccessful, he came out of retirement after some 10 weeks and went back to work for Gulfs Korean subsidiary.

After Mr. Bell’s forced retirement from Gulf on June 1, 1980, he returned to Pennsylvania. This time he stayed in a motel during his discussions with his wife concerning their “getting a divorce.” To prove the seriousness of his intentions, Mr. Bell retained counsel. Notwithstanding this tactic, Mrs. Bell refused to acquiesce to “an overall property settlement and ... an uncontested divorce.” As characterized by counsel in his “Brief In Support of Defendant’s Preliminary Objections Nunc Pro Tunc,” “all efforts to settle the question were completely futile.”

The Defendant explained to the Plaintiff his desire to divorce her under the Pennsylvania Divorce Code of 1980 and the Plaintiff replied that she would use every method in her power to prevent that from happening despite the fact that the marriage was obviously on the rocks.
Because the Plaintiff threatened to use the Defendant’s return to Chester County for a three (3) week period during October of 1978 during which time he resided in the same home, albeit not in the same bedroom, with the Plaintiff to hold up the No-Fault Divorce if filed under Section 201(d) of the Divorce Code of 1980, and further because the Plaintiff refused to give her consent to the Divorce Action filed under Section 201(c), the Defendant decided to take up residency in the State of Nevada.

As counsel phrased it, Mr. Bell, “[i]n complete frustration, ... moved to Nevada from the motel room in Chester County and resided in the State of Nevada for the requisite time, during which time he secured counsel in Nevada and filed suit under the laws of that State to terminate his marriage to Miriam Bell.” In particular, Mr. Bell commenced divorce proceedings “at No. 80-8140 in the Second Judicial District Court of the State of Nevada, in and for the County of Washoe, seeking a dissolution of his marriage to Plaintiff alleging, inter alia, that he ha[d] resided in the State of Nevada for the requisite period of time, and, therefore, [was] entitled to a ‘no-fault divorce’.” (See Appellant’s “Complaint in Divorce,” Point 7)

At this stage of the discussion it is appropriate to remark that we have, intertwined into this scenario, documentation in the form of two letters written by Mr. Bell to his wife, copies of which were produced at Mrs. Bell’s deposition and attached to a transcription thereof, casting some light on the husband’s intention regarding his sojourn to Nevada.

Mrs. Bell found the first letter on her kitchen table at the Landenberg home on August 3, 1980 — the date the husband left for Reno, Nevada. It reads:

Miriam.
Enclosed is a check for 780 dollars which is 60% of the money you have spent for U. of Delaware costs.
We are not getting anywhere on the division of property so I think I will go out West and maybe I will have a better chance for the job in Nigeria.
If you want to get another appraisal of this property for comparision [sic] I think it would be a good idea. In any event when you are ready to move out I will move in. Staying in the other house is a little to [sic] rough for me. Also, I don’t want to rent an apartment because I would have to sign a long lease.
I will stay in touch either by phone or letter. (Emphasis added)

The second letter was dated September 1, 1980 (just eight days prior to Mrs. Bell receiving the Nevada complaint in divorce from her husband) and was post-marked from Truckee, California. It provided in relevant part:

Sept. 1, 1980
Dear Miriam
* * * * * *
I have been given the job in Nigeria. Out of 36 people I was selected for the top job which is General manager of the Nigerian pipeline system. I have received all of my shots and taken a medical examination. As soon as the visa to Nigeria is granted I will be required to go. The only aspect of working in Nigeria is that it is a malaria and yellow fever zone. The yellow fever is no problem because the injections make a person immune. The malaria is a different problem and there is no injection to cause immunity.
If and when you move out of the farm house I will have a real estate man try to rent it. I feel that real estate is once again going up and the value of the dollar coming down, so in my opinion a poor time to sell. If I go to Nigeria I will want a house when I come back.
I deposited money for you and Kimie on August 28.
Henry.
(Emphasis added)

There is no evidence to indicate, nor does Mr. Bell assert otherwise, that Mrs. Bell entered an appearance or filed an answer to the Nevada complaint in divorce. Instead, Mrs. Bell filed a Complaint in Equity in the Court of Common Pleas of Chester County on December 23, 1980. Therein, she alleged in relevant part:

6. As a result of the breakdown in negotiations, Defendant is now asserting, in fraud of this court and in an effort to avoid the laws of Pennsylvania, a residence in the State of Nevada.
7. ...
8. Plaintiff is without funds to pursue the Defendant and to establish the foregoing facts in the courts of the State of Nevada and, thus, will suffer irreparable harm and injury if the Defendant is permitted to proceed with the aforedescribed fraudulent course of conduct[ — i.e., securement of a divorce].
9. Plaintiff has no remedy at law.
10. Immediate and irreparable injury will be sustained before notice can be given or a hearing held on this matter.
WHEREFORE, Plaintiff prays this Honorable Court to issue:
A. An ex parte injunction restraining the Defendant, his agents, servants and employees, from commencing or proceeding with any action in the State of Nevada or in any other location other than the Commonwealth of Pennsylvania which would be aimed at obtaining a divorce from the bonds of matrimony until a hearing can be held on this matter;
B. An order that a hearing need not be held within five (5) days after the granting of this ex parte injunction, but may be held after service has been perfected on Defendant;
C. Subsequent to a hearing on this matter, a permanent injunction restraining the Defendant, his agents, servants and employees from commencing or proceeding with any action in the State of Nevada or in any other location other than the Commonwealth of Pennsylvania which would be aimed at obtaining a divorce from the bonds of matrimony.

The Chester court issued a rule returnable on January 23, 1981 (notice of which was given to counsel who represented Mr. Bell in the initial, unsuccessful effort to resolve the marital controversy amicably). On the date stated, the merits of issuing a preliminary injunction were argued, and, thereafter, an Order was entered enjoining and restraining Mr. Bell “from commencing or proceeding with any action in the State of Nevada or in any other location other than the Commonwealth of Pennsylvania which would be aimed at obtaining a divorce from the bonds of matrimony until such time as a hearing can be held on the matter.” (Record No. 4)

The injunction was issued despite counsel for Mr. Bell asserting that the Chester court had “no personal jurisdiction over the Defendant, Henry M. Bell, for th[e] reason that his domicile is now, and at all times relevant to the within matter has been Reno, Nevada.” (Appellee’s “Preliminary Objections,” Point 1)

Of relevance here is the fact that there is no evidence of record to indicate that the Nevada action continued in the face of the preliminary injunction. Although in response to the interrogatory requesting, “The date and place and manner of termination of each marriage,” Mr. Bell answered, “Reno, Nevada, February 13, 1980,” later on during the same session he stated that the date he first arrived in Reno was “August 6, 1980.” This last date is consistent with the other documents produced in the record recounting the facts leading up to the instant appeal. Thus, since we have no Order indicating that Mr. Bell’s divorce was granted of record, it is appropriate to conclude that his Nevada divorce is still pending. Accordingly, we are not confronted with a full faith and credit question regarding a sister state’s divorce decree, which, once granted, is presumptively valid in this jurisdiction. See Esenwein v. Pennsylvania, 325 U.S. 279, 65 S.Ct. 1118, 89 L.Ed. 1608 (1945); Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945); Watson v. Watson, 243 Pa.Super. 23, 364 A.2d 431 (1976). Rather, we must decide if the Chester court’s ruling, sustaining appellee’s preliminary objections, that it “lack[ed] in personam jurisdiction over [Mr. Bell] because his domicile is not in the Commonwealth of Pennsylvania[,]” (Trial Court Opinion at 1), is supported by the evidence (see Lox, Stock and Bagels, Inc. v. Kotten Machine Co. of California, Inc., 261 Pa.Super. 84, 395 A.2d 954 (1978)) so as to permit the appellee-husband the opportunity to proceed, unhindered, to have his Nevada complaint in divorce completed. The burden is on the husband to prove that he has a right to do so.

In Smith v. Smith, 364 Pa. 1, 4, 70 A.2d 630, 632 (1950), a case procedurally similar to the one at bar, our Supreme Court stated:

Under Williams v. North Carolina (No. 1), 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273, a divorce granted by a court of the bona fide domicile of either spouse is valid and must be given full faith and credit. The only ground upon which a divorce decree of another jurisdiction may be attacked is that it was not the bona fide domicile of either spouse. Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366; Commonwealth ex rel. Esenwein v. Esenwein, 348 Pa. 455, 35 A.2d 335. Since equity has no power to restrain a person from obtaining a lawful divorce, it follows that an injunction may only be granted where the spouse has not established a bona fide domicile in the state in which the divorce is sought. Thus the sole issue here is whether defendant has established such a domicile in Florida.

Instantly, as in Smith, the only issue we need to decide is if Mr. Bell has established a domicile in Nevada by “clear and satisfactory proof.” See In re Estate of McKinley, supra.

From the evidence presented to this Court, it cannot be questioned that Mr. Bell was for some years a Pennsylvania domiciliary. That domicile having been shown to exist, it is presumed to continue until another domicile is affirmatively proven. Smith v. Smith, supra.

It must be recognized that some confusion has arisen, and still persists, in the lay mind as to what constitutes domicile, for it is often used synonymously with residence. On this discrepancy, our Supreme Court has spoken:

Not only are residence and domicile employed synonymously and interchangeably but often they are used overlappingly with one word including, with its meaning, a part of the meaning of the other. Thus, the person with a country home and a city home may with grammatic correctness say that he resides at both places. In point of law, however, only one of these places can be his permanent legal residence, that is, his domicile. Because he may (everything else being equal) arbitrarily decide which of these two places he will adopt as his domicile, it is said that residence is a matter of intent. And it is because of this loose generalization (that intention makes residence) that ____ [cause people to] confuse[] intent with declaration of intent. In the law of domicile, intent is the actual state of facts, not what one declares them to be. One may even believe he is expressing intent and yet this expression would not be enough to establish the domicile or permanent abode which makes up legal residence in the law.
* >N * * 4s Jjs
It seems impossible to restrict the terms habitation, residence and domicile to airtight, waterproof compartments. Their meanings seem bound to escape their lexicographical boundaries and mingle with the others since a person’s place of residence may be identical with his domicile, and habitation is always a component part of residence and domicile. However, in strict technical terminology a habitation may be defined as an abode for the moment, residence a tarrying place for some specific purpose of business or pleasure, and domicile the fixed, permanent, final home to which one always intends to return. A person’s civil status is determined by his domicile. Thus a business man may have his family home in the suburbs of a city where he lives with his wife and children. No matter where he travels nor how long he remains away, he always returns to this abode. This is his domicile. For business reasons he may have a residence in the city, even living there for many months of the year. This residence can never become the basis for voting or for candidacy for office. If travelling, he may stay at a hotel, boarding or rooming house. This would be his habitation and, regardless of expression of intention, could never become his legal domicile.
* s}e sjc * j}c %
To accomplish a change of domicile there must be not only the animus to change but the factum as well. There must be an actual transfer of bodily presence from one place to the other. The animus and the factum do not need to be simultaneous, but until they coincide the change of domicile is not effected. In the law a domicile is as deep rooted as a tree and to transfer it from one location to another requires an operation as intensive as the digging up, loading, transportation, and replanting of an elm or maple.
One almost conclusive criterion of domicile is the animus manendi. There must be the intention to remain. (Emphasis in original)

In re Lesker, 377 Pa. 411, 416-419, 105 A.2d 376, 378-379 (1954). Moreover, the term domicile has been defined as:

... the place in which, both in fact and intent, the home of a person is established without any purpose to return to a former home; the place where he lives, in distinction from that where he transacts his business; the place where he chooses to abide, in distinction from that in which he may be for a temporary purpose____

Wallace v. Wallace, 371 Pa. 404, 410, 411, 89 A.2d 769, 771 (1952). As a result of the criteria just cited, it is not surprising to find “that a person’s domicile is increasingly being determined by close scrutiny of his subjective intentions or state of mind as to whether or not he considers a particular place to be his home.” McKenna v. McKenna, 282 Pa.Super. 45, 50, 422 A.2d 668, 670 (1980). This translates into the following:

Intent, being purely subjective, must to a large extent be determined by the acts which are manifestations of that intent. However, it does not follow from that that the acts must all occur simultaneously with the formation of the intent. Such a conclusion would be contrary to human nature. One does not move to a new domicile and immediately change church membership, bank account, operator’s license, and club memberships. Nor does he immediately select a neighborhood, purchase a home and buy furniture. All of those acts require varying degrees of consideration and as a consequence cannot be done hastily nor simultaneously. (Emphasis added)

Wallace v. Wallace, supra, 371 Pa. at 409, 89 A.2d at 771.

Here, Mr. Bell acknowledges that he had a dual purpose in traveling to the West. The first was to obtain a divorce which his wife had prevented him from securing in Pennsylvania. Second, he felt that his chances for obtaining the oil job in Nigeria, with an Oklahoma based company, would be enhanced if he appeared for the interview in person. The job was secured ultimately during appellee’s stay in Nevada between August 6 and September 25, 1980. Thereafter, he took up residence in Lagos, Nigeria and became operations manager of the Oklahoma company’s pipeline for a period of two years.

The fact that Mr. Bell’s motive for going to Nevada may have been to obtain a divorce is relevant only to the extent that it helps clarify his intention regarding his stay in Nevada. His motive for going to Nevada is immaterial if, in fact, he intended to stay there indefinitely. See, e.g., Commonwealth ex rel. McVay v. McVay, 383 Pa. 70, 118 A.2d 144 (1955); Commonwealth ex rel. Lorusso v. Lorusso, 189 Pa.Super. 403, 150 A.2d 370 (1959).

Because “[ijntention is a thought known only to the person who has it[, w]ith our limited ability to extract the thoughts of another against his will, we must rely upon what he says his thoughts are and what his acts indicate his thoughts to be.” Commonwealth ex rel. Lorusso v. Lorusso, supra, 189 Pa.Super. at 410, 150 A.2d at 374. In accordance therewith, we reproduce the oath-given responses of the appellee-husband to the interrogatories posed by the Vice Consul of the United States of America during his stay in Nigeria. For example:

50. Have you within the past two (2) years changed your residence?
To the fiftieth interrogatory, he says: Yes.
51. If so, state:
a. The date of the change
b. The address or addresses at which you resided after your change of residence
c. The purpose or purposes for your change of residence
d. The length of time at which you resided at the address as set forth in (b) above
e. Your intentions whether or not to continue to reside at such addresses or residences upon your return to the United States
To the fifty-first interrogatory, he says: The date of the first change was when I retired from Gulf Oil in June 1980. I went on vacation and also looking for employment. Stayed in motels first in Pennsylvania then in Florida and then back in Pennsylvania once again and then on August 6 went on to establish a residence in Nevada at 1690 Merchant Street, Sparks, Nevada and on September 26 moved to Nigeria establishing a residence in Lagos, Nigeria. Address Williams International Nigeria, Ltd., Post Office Box 1057, Lagos, Nigeria. The length of time at which you resided [at] the addresses set forth in b above. I stayed in Pennsylvania in motels for 53 days during 1980. I stayed in motels in Florida for 21 days in 1980 and I spent 50 days in Sparks, Nevada in 1980 returning again in 1981 and spent an additional 21 days in Sparks, Nevada. Same address. I intend to when my contract is finished in Nigeria to return and live in Nevada.
52. Are there any facts, not already inquired into, upon which you will rely to prove that you are a resident and domiciled within the State of Nevada or any other state?
To the fifty-second interrogatory, he says: Yes, there are other facts.
53. If so, for each such fact, state what the fact consists of and indicate how you contend that fact tends to establish your residence or domicile.
To the fifty-third interrogatory, he says: I have established a bank account because it establishes a business base. Also I have my car stored there for use when I return to Nevada and I use the car yearly 51 days. Also rent an apartment at the same address 1690 Merchant Street and also have a car. My car is registered in the state of Nevada. I carry Nevada insurance. Next I prefer the climate which is dry and it’s beneficial to my health. (Emphasis added)

Also, in the course of responding to the interrogatory numbered 49, which asked if he “ever made any declarations relative to [his] residence or domicile^]” Mr. Bell stated, “Yes.” “The identity of the document was application for employment. The date of the declaration was August 20, 1980. Description of the declaration was to— application for employment. Address at that time was 1690 Merchant Street, Sparks, Nevada.”

As we can readily see from the record cited above, during the short time that Mr. Bell lived in Nevada, he managed to rent, and continues to rent, an apartment at 1690 Merchant Street, Sparks, Nevada. In fact, he “return[ed] again in 1981 and spent ... 21 days in Sparks, Nevada. Same address.” This occurred while he was still employed by the Oklahoma oil company in Nigeria. Additionally, Mr. Bell opened a checking account at the Valley Bank of Nevada, he changed the registration on his 1980 Oldsmobile from Pennsylvania to Nevada in September of 1981, secured Nevada automobile insurance and stored the vehicle in Nevada until his return.

While the principles of law hereinabove set forth are well established, their application to factual circumstances and conditions, as is exemplified by the unusual facts at bar, is often difficult. Nonetheless, we believe that Mr. Bell has established the severance of his domiciliary attachments to Pennsylvania and is a Nevadan for purposes, if he so desires, of seeking a divorce from the bonds of matrimony in that jurisdiction. In other words, he has satisfied his burden of proving by “clear and satisfactory” evidence that he has effectuated a change of domicile to a new locality (Nevada) and the intention of making that his permanent home, albeit it will not be implemented until he completes his contractual obligations overseas. See generally Wallace v. Wallace, supra; McKenna v. McKenna, supra. Such an absence from one’s domicile because of employment is not sufficient to defeat the establishment of a “true, fixed, permanent home and principal establishment. In re Dorrance’s Estate, 309 Pa. 151, 163 A. 303 (1932). After a domicile is acquired, continuance is presumed.” McKenna v. McKenna, supra, 282 Pa.Super. at 48, 422 A.2d at 669.

The wife-appellant points to the letters written by her husband, his retention of a bank account in Media, Pennsylvania, at the Providence National Bank and the presence of a crate of his clothing at the Landenberg home as indicia establishing the continuation of Pennsylvania as Mr. Bell’s domicile. We disagree.

We note that the Media bank account is jointly owned and has been “frozen” by court order pursuant to Mrs. Bell’s institution of her own complaint in divorce “in the Court of Common Pleas, Chester County, Pennsylvania, at No. 287, December Term, 1980.” As for the relevancy of the clothing left behind at the Pennsylvania location by Mr. Bell after his departure, we, as did the trial court, find this element to be “of little moment. That [Mr. Bell] has done without them for so long shows that they are not of particular importance to him.” (Trial Court’s Opinion at 3) Lastly, we find that the letters having been written prior in time to the acts {see supra) which we believe manifest an intention (coupled with physical presence) on the part of Mr. Bell to establish the legitimacy of his domicile in Nevada, the Order of the court below will be sustained.

Order affirmed.

SPAETH, President Judge, files a dissenting opinion.

SPAETH, President Judge,

dissenting:

The issue here is personal jurisdiction. Although the cases are not easily harmonized, cf. Crompton v. Park Ward Motors, Inc., 299 Pa.Super. 40, 445 A.2d 137 (1982) (burden on plaintiff); Whalen v. Walt Disney World Company, 274 Pa.Super. 246, 418 A.2d 389 (1980) (same) with Gulentz v. Fosdick, 320 Pa.Super. 38, 466 A.2d 1049 (1983) (burden on moving party); Holt Hauling & Warehousing Systems, Inc. v. Aronow Roofing Company, 309 Pa.Super. 158, 454 A.2d 1131 (1983) (same), the better view is that once an objection to personal jurisdiction is properly raised, the plaintiff (appellant) bears the burden of proof. In my view, appellant met her burden by establishing that her husband (appellee) had been a Pennsylvania domiciliary until August 1980. Since it is presumed that he continued to be a Pennsylvania domiciliary, In re Estate of McKinley, 461 Pa. 731, 337 A.2d 851 (1975), it was his burden to prove that he became domiciled elsewhere. I am satisfied that he did not meet that burden. I believe that all appellee intended to do in Nevada was to get a divorce. I am quite unpersuaded that he intends, or ever intended, to make his home there. Nothing about his past life justifies such a finding.

The order of the trial court should be reversed.

      . Purely as a matter of interest, we make mention that the interrogatories for both sides were asked by the Vice Consul of the United States at Lagos, Nigeria on October 29, 1981, pursuant to a "Commission” issued by the Chester court ordering the Vice Consul "to examine the said witness [Mr. Bell] upon his oath or solemn affirmation, touching the premises, and reducing his testimony to writing.” (Record No. 17)
      It seems that Mr. Bell secured employment in Nigeria on September 25, 1980, from a Tulsa, Oklahoma oil company (Wills Bros. Energy Service Co.) based overseas, during his residency in Reno, Nevada.

      . We note that even if Mr. Bell brings an ex parte divorce action in Nevada, his wife is not foreclosed from seeking alimony, child support and equitable distribution of marital property under Pennsylvania’s New Divorce Code of 1980. See 23 P.S. § 101 et seq.; Stambaugh v. Stambaugh, 458 Pa. 147, 329 A.2d 483 (1974); Sohmer v. Sohmer, 318 Pa.Super. 500, 465 A.2d 665 (1983), petition for allowance of appeal denied January 20, 1984 [No. 608 E.D. Allocatur Docket 1983].
      Also, we wish to acknowledge our agreement with the trial court that those arguments raised by the appellant for the first time in her concise statement of matters complained of on appeal are waived. See Benson v. Penn Central Transportation Co., 463 Pa. 37, 41, 342 A.2d 393, 395 (1975); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    473 A.2d 1078
    ESTATE OF Ethel SCHWENK, Deceased. Appeal of Frank L. FISHER and Elizabeth S. Wiest, Exceptants.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1983.
    Filed March 16, 1984.
    Petition for Allowance of Appeal Granted July 16, 1984.

      Fred J. Wiest, Jr., Pottsville, for appellants.
    Morris R. Brooke, Philadelphia, for appellee.

      Before SPAETH, President Judge and BROSKY and HOFFMAN, JJ.
   HOFFMAN, Judge:

The sole issue on appeal is whether the trustee’s fees at issue are to be paid out of the principal or the income of a trust created under the testatrix’s will. Because we find that the trustee’s fees were properly charged against the principal, we affirm the order of the court below.

On June 6, 1949, the testatrix, Ethel K. Schwenk, died leaving a will dated August 28, 1947. Testatrix bequeathed her residuary estate to the Girard Trust Company (now, Girard Bank), in trust, to pay the net income to her sister, Gertrude T. Kauffman, for life, and, upon her sister’s death, to distribute the principal, in equal shares, to the surviving children of the sisters of testatrix’s deceased husband. Prior to the execution of the will, Girard had sent a letter dated August 8, 1947, to the testatrix, which provided in relevant part as follows:

Dear Mrs. Schwenk:
Since you have decided to confide to our Company the future administration of your estate affairs, we take this occasion to express our sincere appreciation and to assure you that we will do everything in our power to carry out your wishes faithfully and efficiently.
As our services will extend over a period of years in the future commencing at some now indeterminate date and will of necessity be subject to circumstances and conditions not now foreseeable, we believe that the following arrangement as to compensation is sufficiently flexible to meet changing conditions and will avoid injustice either to your beneficiaries or to ourselves.
To record the understanding between us as to the compensation to be paid us for such services as we may be called upon to render either as Executor of your last Will or as Trustee of any trusts arising thereunder or under any Deed of Trust executed by you, we propose that our compensation shall be in accordance with the “Standard Fee Schedule for Personal Trust Services” adopted by our Board of Managers and in effect at the time when we commence to perform the services referred to above, ...
All Trustee’s fees payable from time to time shall be charged against the principal of the Trust unless you specifically direct otherwise under the heading of “Special Provisions” on the following page, ...
We will appreciate your signing and returning this letter as evidence of your acceptance of this proposal. When thus signed this letter will constitute an agreement between us and authority for your Executors, Trustees and beneficiaries to comply with the terms thereof. A copy is attached for your files.
With many more thanks for your appointment of our Company ACCEPTED:
Cordially yours,
/s/ A.D. Davis,
Vice President
/s/ Ethel K. Schwenk Ethel K. Schwenk

(Emphasis added). There were no specific directions to the contrary noted and the acceptance signed by the testatrix was not dated. Pursuant to this fee agreement, and subsequent to its appointment, Girard administered the trust for almost thirty years, charging its fees against the principal. On December 18, 1979, Gertrude T. Kauffman died, survived by one niece, Elizabeth S. Wiest, and one nephew, Frank L. Fisher (appellants). On August 28, 1980, Girard filed a final trustee’s account and, on November 30, 1980, appellants filed objections to three disbursements from the principal, but then withdrew two objections by stipulation. The remaining objection was to a disbursement of $45,-692.86 for trustee’s fees. Following hearings held on December 3, 1980, and January 9, 1981, the auditing judge, on July 12, 1982, confirmed the account nisi and dismissed the objection. Appellants then filed exceptions to the decree nisi and, on February 22, 1983, the lower court en banc dismissed the exceptions and confirmed the adjudication absolutely, prompting this appeal.

Appellants contend that the testatrix’s will unambiguously directs payment of the trustee’s fees out of the income of the trust and, hence, overrides the letter agreement which directed payment out of the principal. They base their argument on the language of ITEM X of the will, which states:

All the rest, residue and remainder of my estate, real, personal and mixed, of whatsoever nature or kind the same may be, or wheresoever the same may be situate, I give, devise and bequeath to Girard Trust Company, in trust, to hold, invest and reinvest the principal thereof and to collect the interest, income, dividends and rentals therefrom and after the payment of taxes, trustee’s compensation and other proper charges against income, to pay the whole of the net income to my sister Gertrude G. Kauffman, for and during the term of her natural life.

(Emphasis added). The lower court, however, held that a “parenthetical reference” in a testamentary trust to payment of trustee’s compensation out of income does not affect a “contemporaneous” fee agreement which provided that all trustee’s fees shall be charged against the principal.

Section 7185 of the Probate, Estates and Fiduciaries Code upholds the validity of trustee’s fee agreements, providing that:

... — Where the compensation of a fiduciary is expressly prescribed either by provisions of a will or deed of trust or other instrument under which he is acting or by provisions of an agreement between him and the creator of a trust, nothing in this section shall change in any way the rights of any party in interest or of the fiduciary.

20 Pa.C.S.A. § 7185(c) (emphasis added). Additionally, our courts have held that an agreement between a settlor and a trustee fixing the terms of the trustee’s compensation is a valid and enforceable contract, whether contained in the trust instrument itself or covered in a separate writing. In re Duncan Trust, 480 Pa. 608, 614, 391 A.2d 1051, 1055 (1978); In re Estate of Breyer, 475 Pa. 108, 115, 379 A.2d 1305, 1309 (1977); Carnahan Trust, 27 D. & C.2d (Allegheny Co.1962). Here, we find that the fee agreement contained in the letter signed by both parties is valid and enforceable. There was a clear offer and acceptance, and consideration on both sides; i.e., services to be rendered in return for compensation. See League’s Estate, 39 D. & C. 620, 624 (Montgomery Co.1940).

The question then remains: what is the effect of the testatrix’s will on the fee agreement? The rule of will construction is well-established:

“It is, of course, a cardinal rule that a will is to be construed according to the intent of the testator.” ... Where a court feels that it can with reasonable certainty ascertain the intent of the testator through examination of the will itself, the court generally does not look to matters external to that document____ Where, however, a court cannot feel such confidence in distributing the estate by reference to the will only, or where a latent ambiguity is discovered, it is proper and necessary to inquire into the circumstances of the testator at the time of execution of his will and other evidence which bears on intent.

Estate of Taylor, 480 Pa. 488, 494, 391 A.2d 991, 994 (1978) (citations omitted). Accord, Soles Estate, 451 Pa. 568, 571-72, 304 A.2d 97, 99 (1973). In ascertaining testamentary intent, the court examines the language of the will, the scheme of distribution, the circumstances surrounding the execution of the will and other relevant facts. Estate of Sykes, 477 Pa. 254, 257, 383 A.2d 920, 921 (1978); Chambers Estate, 438 Pa. 22, 25, 263 A.2d 746, 748 (1970).

In the instant case, we conclude from an examination of the above-mentioned factors that the testatrix’s intent was to maximize benefits accruing to her sister, the life tenant of the residuary estate. In ITEM IX of the will, testatrix bequeathed all her “jewelry, furniture household furnishing, clothing and personal effects” to her sister. In ITEM XI, testatrix directed that all transfer, inheritance, succession and estate taxes be paid out of the principal so that her sister’s life estate would be left unencumbered. And in ITEM XII, testatrix included a spendthrift provision, thereby protecting her sister’s life estate from creditors. Therefore, as the lower court correctly stated, “What would be more rational than for testatrix to agree that her sister’s income should be increased by authorizing that [the trustee’s] commissions should be withdrawn from principal?” (Lower Court Opinion at 6). Within three weeks of executing the will, testatrix had signed the agreement directing that all trustee’s fees were to be paid out of the principal. Additionally, the Girard accountant testified at the audit hearings that fee agreements, such as the one executed by testatrix, were typically tendered to the customer in connection with estate planning or the preparation of a trust or will. We note that the letter is dated August 8, 1947, and the will is dated twenty days later. The testatrix’s acceptance on the letter, however, is undated and the record does not indicate whether the testatrix signed the agreement before, during or after the execution of the will.

Accordingly, we hold that the contract and the will should be considered contemporaneous writings. We further hold that, consistent with testamentary intent, Girard properly charged its trustee’s fees against the principal pursuant to the express contract. There are few cases-involving the effect of a separate agreement on a will, but they support our determination. In Ford’s Estate: Richard’s Appeal, 185 Pa. 420, 39 A. 1106 (1898), our Supreme Court upheld the validity of an agreement executed by the testator’s children eight months after the testator’s death, which complied with oral statements of intent made by the testator shortly before his death that the children should have only the income of their shares for life. The Court held that the limitations under the agreement were to be regarded as if expressed in the written will. In Sinnott’s Estate, 224 Pa. 333, 73 A. 348 (1909), the Court assumed without discussion that a fee agreement between the testator and the trust company, designating the company as an executor and trustee under the will and setting the trustee’s compensation, was valid even though the agreement was made five years prior to the execution of the testator’s last will. In League’s Estate, supra there was also a five year gap between the contract and the probated will, and the court, construing them together, gave effect to the fee agreement. In Yeager Estate, 69 D. & C. 228 (Philadelphia Co.1949), the decedent’s first will appointed two executor-trustees, but his last will, executed two years later, added a third executor-trustee. The court, in construing the probated will, enforced an agreement contained in a letter sent by the testatrix to the third trustee eight days prior to the execution of the last will which provided that the trustee was to receive the same commission as the other two trustees; the court stated that a “contract to pay commissions in the amounts fixed by decedent is lawful and binding as far as the beneficiaries under testatrix’s will are concerned[.]” Id. at 231. And in Stoddart Estate, 27 D. & C.2d 251 (Philadelphia Co.1962), after the death of the testatrix, the life tenants of the trust created under the will and the trustee agreed to a formula for calculating the trustee’s fees. In rejecting the remaindermen’s argument that they, were not bound by the agreement, the court stated: “Contracts between testator or settlor and the trustee, ..., fixing the amount and manner of payment of compensation for fiduciary services have been considered lawful and binding upon the estate, whether contained in the trust instrument, itself, or covered by collateral agreement.” Id. at 254.

The instant ease presents a new problem in the construction of testamentary trusts and collateral fee agreements because it involves seemingly contradictory directives in the two documents. We find, however, that this contradiction is without substance. First, the contract’s mandate that trustee’s fees are to be charged against the principal is both clearly expressed and consistent with testamentary intent while the will’s directive is merely a parenthetical reference to “trustee’s compensation and other proper charges against income”. Next, appellants do not dispute the amount of trustee’s compensation, which Girard had computed over the thirty-odd years according to the standard fee schedules referred to in the letter agreement, and, hence, cannot assert the total invalidity and inapplicability of the contract. Lastly, we agree with the auditing judge that the language of the will is “somewhat ambiguous” when considered with the rest of the will and the fee agreement. See In re Herr’s Estate, 400 Pa. 90, 92, 161 A.2d 32, 34 (1960) (ambiguity can be created by extrinsic or collateral circumstances); Beisgen Estate, 387 Pa. 425, 431, 128 A.2d 52, 55 (1956) (latent ambiguity can be created by extrinsic or collateral circumstances). Moreover, we find that Girard’s interpretation of the language of ITEM X as an authorization to make the listed charges against the trust income rather than as a directive to make such charges is plausible. ITEM X directs the trustee “to collect the interest, income, dividends and rentals ” (emphasis added) from the residuary estate. However, there is no real estate in the trust and, therefore, Girard would not be able to collect rentals. It is possible that the word “rentals” was inserted in the clause in the event realty was added to the estate prior to the testatrix’s death. Similarly, the directive to pay the net income to testatrix’s sister “after the payment of taxes, trustee’s compensation and other proper charges against income” could be interpreted as merely a provision against the possibility of a change in the fee agreement prior to the testatrix’s death.

In light of our holding that the fee agreement and will are contemporaneous documents which evidence a testamentary intent to charge the trustee’s fees against the trust principal, we must reject appellant’s contention and affirm the order of the court below.

Affirmed.

      . Another plausible explanation for the language in ITEM X is that the drafter of the will used formula phrases for the clause.

        . As we have already noted, testatrix, by ITEM XI of the will, directed that all transfer, inheritance, succession and estate taxes be paid out of the principal.

      . By finding the fee agreement and the will to be contemporaneous consistent documents, we also dispose of appellants’ arguments that: (1) testatrix breached the agreement by failing to deliver to the trustee a will which would provide for payment of trustee’s compensation out of the principal; and, alternatively, (2) trustee was bound by a modified contract when it accepted the will by undertaking its duties thereunder.


author: WATKINS, Judge:

text:
    473 A.2d 1082
    COMMONWEALTH of Pennsylvania v. James BRADLEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 23, 1983.
    Filed March 23, 1984.
    Petition for Allowance of Appeal Denied Aug. 14, 1984.

      Silvio Fausto Modafferi, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before MONTEMURO, WATKINS and HOFFMAN, JJ.
   WATKINS, Judge:

This case is an appeal from a denial of relief under the Post Conviction Hearing Act, 1966, January 25, P.L. (1965) 1580, 19 P.S. 1180-1 et seq.

The defendant, James Bradley, was convicted of third degree murder and possession of an instrument of crime following a trial without a jury. The defendant waived both a jury trial and post-trial motions. New counsel filed a P.C.H.A. petition claiming both waivers were the result of ineffective assistance of counsel. Relief was denied by the court below after a hearing.

The defendant claims on appeal that he was denied constitutionally effective counsel because he was induced to waive a jury trial by counsel’s alleged representations that she was too busy campaigning for office to have time to pick a jury. He also claims counsel’s failure to present post-trial motions amounted to a waiver of issues for appeal, thereby denying him effective assistance of counsel.

The court below found defendant’s testimony at the P.C.H.A. hearing on these issues unworthy of belief. The court noted the extensive colloquy between the trial court and defendant prior to that court’s acceptance of defendant’s waiver of his right to a jury trial. A similarly extensive colloquy was held on the issue of defendant’s waiver of post-trial motions. We have reviewed the record and agree that defendant’s waiver of both a jury trial and post-trial motions was knowingly, voluntarily and intelligently made. See Commonwealth v. Schroth, 458 Pa. 233, 328 A.2d 168 (1974); Commonwealth v. Rinier, 255 Pa.Superior Ct. 166, 386 A.2d 560 (1978).

Trial counsel testified at the P.C.H.A. hearing that she recommended a bench trial because of certain Coroner’s evidence which she and defendant had reviewed and which she felt would be damaging if presented to a jury. We can conclude from this testimony that counsel had some reasonable basis designed to effectuate her client’s interest when she recommended that he waive a jury trial. This fact sufficiently refutes defendant’s claim of ineffective assistance of counsel. See Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth ex rel Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); Commonwealth v. Nero, 250 Pa.Superior Ct. 17, 378 A.2d 430 (1977).

Counsel’s failure to file post-trial motions in this case does not warrant a finding of ineffective assistance. Counsel is not required to pursue motions which have no arguable merit. Commonwealth v. Hubbard, supra. The primary focus of appellant’s argument on this issue is counsel’s failure to renew pre-trial suppression motions. The motion to suppress was litigated for two days prior to trial and was denied. After considering the record of the suppression hearing and the Judge’s detailed decision following that hearing, we are convinced that counsel justifiably concluded that a renewed motion was of no arguable merit. Counsel was, therefore, not ineffective by virtue of her failure to renew the motion through post-trial motions. See Commonwealth v. Davenport, 250 Pa.Superior Ct. 304, 378 A.2d 948 (1977).

As we noted above, the record establishes reasonable grounds for counsel’s advice to defendant. There is no indication that counsel interfered in any way with defendant’s freedom to choose his course of action. Commonwealth v. Hooks, 483 Pa. 40, 394 A.2d 528 (1978). The colloquies adequately demonstrate that defendant’s decisions to waive both a jury trial and post-trial motions were ultimately his own and made knowingly, voluntarily and intelligently.

Order affirmed.


author: WICKERSHAM, Judge:

text:
    473 A.2d 1084
    In re Tammy Lynn MAYNARD, a minor. Appeal of Eugene FALKENBERG.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1984.
    Filed March 30, 1984.
    Petition for Allowance of Appeal Denied July 20, 1984.

      Victor A. Neubaum, Jr., York, for appellant.
    Sharon Eileen Myers, York, for appellee.
    Before WICKERSHAM, DEL SOLE and MONTEMURO, JJ.
   WICKERSHAM, Judge:

On August 9, 1982, appellant Eugene Falkenberg’s parental rights to his daughter, Tammy Lynn, were involuntarily terminated. Appellant filed a petition to vacate the judgment terminating his parental rights on October 7,1982. In the petition, appellant alleged that he had never received notice of the termination hearing. An evidentiary hearing limited to the notice question was held on November 22, 1982. On February 28, 1983, the lower court dismissed appellant’s petition to vacate the judgment. The appellant filed exceptions, but on April 18, 1983, the court dismissed all of the exceptions and made the order final. Appellant filed this timely appeal.

At the time of this proceeding, section 2513(b) of the Adoption Act required that notice of a hearing on a petition to involuntarily terminate the parental rights of another must be sent by certified mail to “the last known address” of the person whose parental rights are to be terminated. In Adoption of Walker, 468 Pa. 165, 360 A.2d 603 (1976), our supreme court held that this requirement of service by mail at the last known address implies a good faith effort to discover the parent’s correct address.

Appellant alleges that appellee Terry Maynard failed to make a good faith effort to send notice of the termination proceeding to him. Appellant asks us to consider the following issue:

Whether Terry Maynard made a “good faith” effort to send notice of the termination hearing to Eugene Falkenberg at his last known address?

Brief for Appellant at 3.

The lower court found that appellee made a good faith effort to send notice to appellant at his last known address. Therefore, the lower court refused to grant appellant’s petition to vacate the judgment terminating his parental rights. We recognize that a refusal to vacate a judgment is a decision within the trial court’s discretion and unless the court abuses that discretion or makes an error of law, we will not disturb the trial court’s ruling. Kennedy v. Black, 492 Pa. 397, 424 A.2d 1250 (1981); Ab v. Continental Imports, 220 Pa.Super. 5, 281 A.2d 646 (1971). We also note that appellant bears the burden of establishing his claim of appellee’s failure to provide him with “good faith” notice in order to obtain the relief sought. See In re Adoption of R.H., 485 Pa. 157, 161, 401 A.2d 341, 343 (1979). Despite these strict standards, we feel we must reverse the lower court ruling because the court erred in its interpretation of the notice requirements of the Adoption Act as applied to the facts of this case.

At the original termination hearing, appellee Terry Dawn Maynard, the natural mother of Tammy Lynn, testified that her attorney sent notice of the termination hearing to appellant at an address in Ocala, Florida. The notice came back “unclaimed.” She further testified that this Florida address was, to the best of her knowledge, appellant’s last known address.

In his petition, appellant averred that he had informed Terry, his estranged wife, that he was going to Florida for a few months to work, but that he could be contacted through his mother or his sister in Colorado at addresses known to appellee. Terry denied these allegations.

At the hearing on November 22, 1982, much conflicting testimony was presented. The gist of appellant’s testimony was that appellee at all times was aware of addresses through which he could be reached. Appellee’s testimony indicated that she had been attempting to contact appellant for quite some time for the purpose of securing child support, but was unable to locate him. We recognize that the lower court found that the testimony presented by appellee was more credible than that presented by appellant. It was within his discretion, as the trier of fact, to assess the credibility of the witnesses.

Nevertheless, there are certain uncontradicted facts in the record that require us to reverse the holding of the lower court. Appellee admitted that a few days prior to the termination hearing she supplied her divorce attorney (an attorney different from the attorney who represented her throughout the termination proceedings) with three addresses other than the Florida address at which appellant might be reached. One of these was appellant’s mother’s old address in Colorado. Notice sent to this address resulted in eventual contact with the father for purposes of the divorce action.

The lower court held that appellee’s failure to attempt to serve notice to appellant through this Colorado address did not indicate bad faith. “The mother [appellee] was merely complying with the request from her divorce proceeding attorney for other possible addresses for the father but does not show that she did not, in good faith, believe that Ocala, Florida was his last known real address where notice could possibly reach him.” Lower ct. op., 4-18-83, at 3. We disagree with the lower court’s analysis of what was legally required of appellee. While appellee may have complied with the literal wording of the Adoption Act when she sent notice to appellant’s “last known address”, the evidence indicates that she did not make a “good faith” effort to discover appellant’s correct address as required by Adoption of Walker, supra.

Appellee knew that her attempts to serve notice on appellant at the Ocala, Florida address had been unsuccessful. She also knew prior to the termination hearing that appellant could possibly be contacted through the Colorado address. Given the overwhelming importance and the finality of a termination of parental rights proceeding, we cannot agree that a failure to attempt to serve appellant at this Colorado address known to appellee was not indicative of bad faith. Appellee knew that the Florida address was not current and she had the means to at least attempt to properly serve appellant through the Colorado address. See Adoption of Walker, supra. Section 2513(b) of the Adoption Act as interpreted in Walker required appellee to attempt to serve appellant at the Colorado address. Therefore, we feel constrained to reverse the ruling of the lower court.

Because of our disposition of appellant’s first issue, we find it unnecessary to address his remaining two issues. The order of the lower court dismissing appellant’s petition to vacate the decree of involuntary termination is reversed. Thus, the judgment of termination is vacated and the lower court is directed to conduct a new evidentiary hearing to determine whether appellant’s parental rights should be terminated.

Order reversed. Jurisdiction is relinquished.

      . Act of October 15, 1980, P.L. 934, No. 163, § 1, 23 Pa.C.S.A. § 2513(b).

      . The section now refers to service by registered mail. This distinction is inapplicable to the instant case.

      . Appellant states the remaining issues as follows:
      2. Whether the decree terminating the parental rights of Eugene Falkenberg should be vacated because it is based on erroneous and incomplete testimony of the mother, Terry Maynard?
      3. Whether the decree terminating the parental rights of Eugene Falkenberg was based on the correct application of the burden of proof in such actions?
      Brief for Appellant at 3.


author: McEWEN, Judge:

text:
    473 A.2d 1087
    Olga J. FRIED v. Robert J. FRIED, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 15, 1983.
    Filed March 30, 1984.
    Petition for Allowance of Appeal Granted Oct. 25, 1984.

      Ronald Katzman, Harrisburg, for appellant.
    Timothy J. O’Connell, Harrisburg, for appellee.
    Before McEWEN, JOHNSON and HESTER, JJ.
   McEWEN, Judge:

Appellant has appealed from an order entered by the Court of Common Pleas of Dauphin County which awarded to appellee the sum of $1,000.00 for interim counsel fees and expenses and $1,250.00 for payment of master’s fees and stenographic costs incurred in this action in divorce. Appellant contends the trial court erred in making an interim award of counsel fees and expenses as well as in providing for an interim award of monies for stenographic costs and master’s fees. While we find no abuse of discretion on the part of the court in the award of counsel fees and expenses, we are constrained to vacate that part of the order which provided an interim award for stenographic costs and master’s fees.

Appellee filed a complaint in divorce in July of 1980, pursuant to the Divorce Code of 1980, alleging that her husband, the appellant herein, wilfully and maliciously deserted and was absent from the marital home, without reasonable cause, for a period of more than one year. In this complaint appellee requested that the court award “reasonable child support, alimony, alimony pendente lite, counsel fees, and equitable distribution of the marital property and payment of costs and expenses.” A special master was appointed pursuant to Pa.R.C.P. 1920.51, who, after a hearing, recommended that the court issue a rule to show cause why appellant should not deposit $1,250.00 with the Prothonotary as payment for the master’s fee and stenographic costs and $1,000.00 as an interim award of counsel fees and expenses. The Court of Common Pleas issued a rule upon appellant on October 14, 1981, and thereafter issued an order directing appellant to pay the above amounts. Appellant undertook the present appeal from that order.

Appellee has challenged the jurisdiction of this court to entertain the present appeal, contending that the order appealed from is not a final, appealable order. This court has, however, held in Sutliff v. Sutliff, 326 Pa.Super. 496, 474 A.2d 599 (1984) that an order denying alimony pendente lite and interim counsel fees is a final appealable order. We are, therefore, contrary to appellee’s contention, possessed of jurisdiction to entertain the instant appeal.

Appellant argues that the trial court erred when it ordered him to pay interim counsel fees and expenses incurred by appellee and contends not only that the amount of the award was incorrect but also that the court is without authority to enter an interim award of this nature. We disagree with both contentions.

The purpose [for the award of alimony pendente lite, counsel fees and expenses] is to promote the fair and impartial administration of justice by enabling the defendant spouse to maintain or defend the principle action in divorce without being placed at a financial disadvantage.

Sutliff v. Sutliff, supra, 326 Pa.Super. at 500, 474 A.2d 599. Accord Remick v. Remick, 310 Pa.Super. 23, 37, 456 A.2d 163, 169 (1983); Jack v. Jack, 253 Pa.Super. 538, 543-544, 385 A.2d 469, 472 (1978); Moore v. Moore, 198 Pa.Super. 349, 353-354, 181 A.2d 714, 716 (1962). Thus, the very purpose of such interim relief would be defeated if we were to accept appellant’s contention that counsel fees and expenses may not be awarded prior to the entry of a final decree in an action in divorce. See Wiegand v. Wiegand, 242 Pa.Super. 170, 176-177, 363 A.2d 1215, 1218 (1976). We, therefore, dismiss this argument as meritless.

As we consider the allegation that the trial court erred in awarding appellee the sum of $1,000.00 for interim counsel fees and expenses, we are guided by the rule enunciated in Jack v. Jack, supra:

No standard is fixed for determination of the amount of counsel fee other than the requirement that it must be reasonable. Consideration must be given to the husband’s ability to pay, the wife’s necessity, and to the extent of her separate estate. See Freedman, Law of Marriage and Divorce, Second Edition, Section 465.
‘How much shall be allowed as alimony and for counsel fees and expenses is a matter of judicial discretion and the validity of the order depends upon the proper exercise of that discretion ... This court will not reverse an order of the court below “except for plain abuse of discretion” ... There are no fixed rules as to the amount to be allowed. It is not to be measured solely by the value of counsel’s services or by the wife’s necessities. “The husband’s ability to pay, the separate estate of the wife, the character, situation and surroundings of the parties are all to be considered in determining a fair and just amount which the husband should pay.” ’

Id. 253 Pa.Super. at 545, 385 A.2d at 473 quoting Shuman v. Shuman, 195 Pa.Super. 155, 157, 170 A.2d 602, 603 (1969). See also Remick v. Remick, supra 310 Pa.Super. at 23, 456 A.2d at 165-166; Moore v. Moore, supra 198 Pa.Super. at 353, 181 A.2d at 716. Our review of the record convinces us that the recommendations of the special master with regard to the aforementioned expenses and counsel fees were based upon more than adequate evidence. Such evidence included (1) a hearing held by the special master at which the parties testified to their respective abilities to bear these expenses; (2) the “income and expense statements” of both appellant and appellee; and (3) the “marital assets” statements submitted by appellant and appellee. We discern no abuse of discretion on the part of the trial court in awarding appellee the amount of $1,000.00 for counsel fees and expenses and, therefore, affirm the award of counsel fees and expenses.

Appellant’s final contention of error is that the Common Pleas Court erred when it ordered him to pay, prior to the final decree, a sum representing the master’s fee and stenographic costs incurred in this divorce action. We agree. Section 401 of the Pennsylvania Divorce Code provides in relevant part:

Section 401. Decree of Court.
(b) ____ The court may order alimony, reasonable counsel fees and expenses pending final disposition of the matters provided for in this subsection and upon final disposition, the court may award costs to the party in whose favor the order or decree shall be entered, or may order that each party shall pay his or her own costs, or may order that costs be divided equitably as it shall appear just and reasonable.

The Supreme Court has promulgated Rules 1920.1 through 1920.92 of the Rules of Civil Procedure, 42 Pa.C.S., governing actions commenced pursuant to the Divorce Code of 1980. Rule 1920.62(a) provides that costs in such actions include master’s fees and stenographic expenses. As Section 401 of the Divorce Code provides for an award of costs only upon final disposition and the Supreme Court has defined costs to include stenographic expenses and master’s fees, we are constrained to vacate that part of the order awarding such costs.

Order affirmed in part and reversed in part. Case remanded. Jurisdiction is relinquished.

      . Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 101 et seq.

        . See Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 201(a)(1).

      . Exceptions, as required by Pa.R.C.P. 1920.55, were filed by appellant. See Carangelo v. Carangelo, 321 Pa.Super. 219, 467 A.2d 1333 (1983).

      . Rule 1920.62. Proceedings by Indigent Parties
      (a) Prior to the commencement of the action, or at any time during its pendency, upon petition of a party averring inability to pay all or part of the costs of the action, the court, upon being satisfied of the truth of the averments of the petition, shall enter an order permitting the party to proceed upon payment of only those costs which the court finds the party able to pay. Costs include master’s fees and stenographic charges. The petition must disclose the party’s full financial condition, including income and property. No filing fee shall be required for the filing of the petition, (emphasis added)

      . While we have concluded that interim awards of costs are not permitted in divorce actions, we note that such awards are provided for in some civil actions. See e.g., 42 Pa.C.S. § 6135; Pa.R.C.P. 217; Pa.R.C.P. 1525.


author: BECK, Judge:

text:
    473 A.2d 1089
    In the Matter of the ADOPTION OF Henry Augustus HUTCHINS, IV. Appeal of Henry Augustus HUTCHINS, III.
    Superior Court of Pennsylvania.
    Argued Sept. 27, 1983.
    Filed March 30, 1984.
    Petition for Allowance of Appeal Granted July 16, 1984.

      James Andrew Pitonyak, Erie, for appellant.
    Stephanie Domitrovich, Erie, for appellee.
    Marilyn Woolery, Erie, for participating party.
    Before BROSKY, McEWEN and BECK, JJ.
   BECK, Judge:

The appellant-natural father (father) appeals an order granting the petition of the appellee-natural mother (mother) for the involuntary termination of the father’s parental rights to the parties’ son. We affirm.

The parties’ son was born on December 8, 1973. Although the parties never married, they sporadically resided together until the summer of 1977. On September 21, 1982, the mother filed a petition to terminate the father’s parental rights. Pursuant to the mother’s petition, a hearing was held on December 1, 1982, in the Orphans’ Court of Erie County. As a result of the testimony presented at the hearing, the court issued a decree terminating the father’s parental rights under Section 2511(a)(1) of the Adoption Act, 23 Pa.C.S.A. § 2511(a)(1). Thereafter, the father filed timely exceptions to the court’s decree. After the father’s exceptions were dismissed and a final decree terminating his parental rights was entered, the father duly filed a notice of appeal questioning solely whether the court’s termination order was based upon clear and convincing evidence.

In accordance with the dictates of Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), “any party in Pennsylvania attempting to terminate parental rights must establish by clear and convincing evidence the existence of grounds for doing so.” Appeal of G.J.A., 304 Pa.Super.Ct. 21, 25, 450 A.2d 80, 82 (1982) (footnote deleted). Moreover, a termination order must rest upon competent evidence and cannot be “ ‘predicated upon capricious disbelief of competent and credible evidence.’ ” In re Adoption of Barnett, 304 Pa.Super.Ct. 514, 521, 450 A.2d 1356, 1360 (1982) (citation omitted); In re Adoption of M.M., 492 Pa. 457, 424 A.2d 1280 (1981). Consequently, in reviewing a challenged termination order, we must ascertain whether the order is supported by clear and convincing, competent evidence.

“[P]arental obligation is a positive duty which requires affirmative performance ... [including] a genuine effort to maintain communication and association with the child____ [P]arental duty requires that a parent ‘exert himself to take and maintain a place of importance in the child’s life.’ ” In re Adoption of R.W.G., 494 Pa. 311, 314-15, 431 A.2d 274, 276 (1981) (citation omitted). Where a “parent by conduct continuing for a period of at least six months ... has ... failed to perform parental duties,” Section 2511(a)(1) of the Adoption Act authorizes the involuntary termination of parental rights.

At the court hearing on the termination petition, both the mother and the father testified that since October of 1977 the father has had no personal contact with their son. Record at 16, 45-48. Additionally, the father admitted that since 1977 he, has neither offered financial support for his son’s care, Record at 60-61, nor attempted communication with his son by telephone or letter. Record at 48 and 57.

The only unrebutted evidence indicating the father’s active interest in his son during the period from October of 1977 to September of 1982 (the date on which the termination petition was filed) is the mother’s statement that in 1978 the father sent their son an Easter basket and at Christmas in 1979 the father sent their son a toy gun set. Record at 7, 10. However, in a case where over a span of seven and one-half years a father had only occasionally sent his son Christmas and birthday cards and had not otherwise tried to establish contacts with his son, the Pennsylvania Supreme Court held that the father’s actions did not constitute “the sort of effort that a parent who wants to maintain a place of importance in a child’s life would make in order to ensure his ability to see the child and protect his parental rights.” In re Adoption of David C., 479 Pa. 1, 11, 387 A.2d 804, 809 (1978); In re Adoption of Oehler, 267 Pa.Super.Ct. 586, 407 A.2d 397 (1979).

Therefore, we hold that the record contains clear and convincing, competent evidence of the father’s failure to perform parental duties for a period well in excess of the six-month statutory limit. But this determination does not end our inquiry because a failure to perform parental obligations does not automatically warrant an involuntary termination of parental rights. In re Adoption of J.A.B., 487 Pa. 79, 408 A.2d 1363 (1979). Rather, the nonperformance of parental duties must be evaluated under the totality of the circumstances confronting the particular parent whose rights are jeopardized, and consideration must be afforded to any excuses proffered to explain the nonperformance. In re D.J.Y., 487 Pa. 125, 408 A.2d 1387 (1979); In re Adoption of J.S.H., 299 Pa.Super.Ct. 90, 445 A.2d 162 (1982). “A parent’s performance must be measured in light of ‘what would be expected of an individual in circumstances in which the parent under examination finds himself.’ ” In re Adoption of B.D.S., 494 Pa. 171, 179, 431 A.2d 203, 207 (1981) (citation omitted).

In the case sub judice the father asserts that his lack of significant contacts with his son stemmed from the mother’s deliberate actions to thwart any such intercommunication. Uncontroverted evidence of record establishes that (1) from the time of the parties’ separation in 1977 until the September 21, 1982, filing of the termination petition, the mother changed residences five times, Record at 5, 8, 10,11, 13; (2) in the latter part of 1980 the mother’s telephone number became unlisted and remained unlisted as of the filing of the termination petition, Record at 12, 24, and (3) the mother would not have voluntarily permitted the father to visit their son, Record at 23.

Nevertheless, “[i]t is clear ... that to safeguard his or her parental rights, a parent may not acquiesce in obstructive behavior by ... the custodial parent. He or she must exhibit ‘reasonable firmness’ in refusing to yield to such obstacles.” In re Adoption of J.S.H., 299 Pa.Super. at 102, 445 A.2d at 168 (Beck, J., concurring); In re Adoption of J.S.M., Jr., 492 Pa. 313, 424 A.2d 878 (1981); In re D.J.Y. In this regard the following uncontested facts appear of record. After the parties’ separation in 1977, the mother and the parties’ sen moved to the home of the mother’s mother (grandmother). Record at 26. In January of 1978 the mother and the parties’ son obtained a separate residence. Record at 8. The mother testified that her new address and telephone number were listed in the telephone directory under her maiden name. Record at 8. In 1979 the mother and the parties’ son moved to a home shared by the mother’s present husband whose name was known to the father. Record at 10, 67-68. The mother’s new address and telephone number were again listed in the telephone directory under the mother’s maiden name. Record at 10, 12. The father admitted that he never consulted the telephone directory in an effort to locate and communicate with his son. Record at 64. Thus, despite the availability of the mother’s addresses and telephone numbers upon perusal of the telephone directory, the father never attempted to telephone, write, or visit his son from 1978 to 1980. Record at 8-12.

Additionally, the father admitted knowing that his niece and his son were in the same school class in 1979. Record at 10, 62. Yet, the father stated that he never asked his son’s teacher for any information about his son. Record at 64.

In the latter part of 1980 the mother, the parties’ son, and the mother’s present husband relocated and acquired an unlisted telephone number to avoid obscene telephone calls which they had started receiving from an undiscovered source. Record at 28, 44. Nevertheless, the location of the parties’ son was readily discernible through minimal inquiries. From the time of the parties’ separation in 1977 until October of 1982, the grandmother lived at one locale which the father visited at least twice after the parties’ separation in order to deliver an Easter basket and a toy gun set to be forwarded to his son. The father and the grandmother also testified that while doing their respective errands, they occasionally chanced to meet each other and talk. Record at 29, 52. However, the father stated that he never asked the grandmother for the mother’s address. Record at 49.

Given the circumstances of this case, we further hold that the record contains clear and convincing, competent evidence of the father’s failure to utilize the resources available to him to persist in attempting to overcome the relatively minimal impediments to the development of a parent-child relationship with his son. In re Adoption of B.D.S.; In re D.J.Y.

Accordingly, we affirm the order of the Orphans’ Court Division of the Court of Common Pleas of Erie County.

      . ‘"While we will not usurp the trial court’s right to assess the credibility of the witnesses appearing before him, we will not condone his ignoring facts which are of record and the credibility of which is not challenged.’ ” In re Adoption of Barnett, 304 Pa.Super.Ct. 514, 521, 450 A.2d 1356, 1360 (1982) (citation omitted). We recognize that the issue of the scope of review to be applied in involuntary termination of parental rights cases is presently before our en banc court in the case of In re James J., No. 2776 Philadelphia, 1981, argued February 11, 1983; however, under either a broad or a narrow scope of review, the result in this case would be the same.

      . The father delivered the Easter basket and toy gun set to the home of his son’s maternal grandmother who then forwarded the gifts to the parties’ son. Therefore, the presentation of these two gifts did not occasion any personal contact between the father and his son.


author: POPOVICH, Judge: WIEAND, Judge,

text:
    473 A.2d 1093
    F. Brian DODSON and Lisa A. Dodson, his wife, Appellants, v. N. JOHN CUNZOLO & ASSOCIATES ARCHITECTURAL CLAY PRODUCTS, INC., a Corporation Capitol Tile Import Co., a Foreign Corporation.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1984.
    Filed March 30, 1984.

      Frederick W. Bode, III, Pittsburgh, for appellants.
    Errol S. Miller, Pittsburgh, for appellees.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the Order of the Court of Common Pleas of Allegheny County (per Judge McGowan) granting a petition to open judgment. We reverse.

On May 26, 1981 plaintiffs-appellants (F. Brian Dodson and Lisa D. Dodson) filed a complaint in assumpsit and trespass against the defendants-appellees (N. John Cunzolo & Associates, Architectural Clay Products, Inc. and Capitol Tile Import Co.). Therein, appellants alleged, in relevant part, that:

2. ... the defendant, N. John Cunzolo ... was employed by the plaintiff[s] as a general contractor to oversee and construct a residence for the plaintiff[s]
* * * * * *
7. ... the defendant, N. John Cunzolo & Associates, subcontracted with Architectural Clay Products, Inc., ... and Capitol Tile Import for the purpose of laying ceramic Italian tile in the foyer, kitchen and bathroom areas.
8. ... the defendant breached its contract with the plaintiff[s] by failing to properly supervise, inspect and employ responsible subcontractors for the completion of the residence____
9. ... the defendant breached its contract with the plaintiff by purchasing defective Italian tile, which failed to meet the specific flooring standards established by the plaintiff[s] and the defendant.
* * * * * *
11. ... as a direct and proximate result of the breach of contract by the defendant, ... the plaintiffs and their residence have sustained damage in that the aforesaid tile cracked and chipped necessitating its removal and replacement.

In the remaining portion of the complaint, the appellants sought recoupment of damages against the general contractor, the subcontractor (Architectural Clay Products, Inc.) and the distributor or seller (Capitol Tile Import Co.) of the purportedly defective tile under theories of strict liability (Section 402(a) of the Restatement (Second) of Torts) and express and implied warranties provided for by the Uniform Commercial Code.

At this point, it requires mentioning that, inasmuch as the petition to open was granted so as to afford “the Defendant, Capitol Tile Import Company, ... permission] to enter a defense[,]” we need only concern ourselves with the facts affecting this party-litigant.

The record discloses that a copy of the complaint was sent “by certified return receipt mail” to the New Jersey based Capitol Tile Import Co., which was signed as having been received by it on June 4, 1981 by “R. Giordano”.

On August 3, 1981, the plaintiffs submitted a praecipe with the prothonotary of Allegheny County requesting that a judgment be entered against Capitol Tile Import Co. “for the defendant’s failure to file an Answer to the plaintiff’s [sic] Complaint or enter an appearance.” Attached to this praecipe was an affidavit of service documenting the fact that, pursuant to Pa.R.Civ.P. 237.1, Capitol Tile Import Co. was sent notice by mail on July 21, 1981 of the plaintiffs’ intention to seek a default judgment. The docket entry reads that on “Aug. 3, 1981, Judgment entered against Capitol Til [sic] Import Co. for failure to answer. Notice mailed 8-3-81, filed.” The next action we see being taken is the filing of a petition by counsel for Capitol Tile Import Co. on October 2,1981 seeking, on equitable grounds, a rule to open. Not disputing the timely receipt of the complaint, the notice of intention to enter judgment or praecipe for judgment, counsel asserted that:

5. Capitol is insured under a certain policy of liability insurance issued by Aetna Casualty and Surety Company (hereinafter referred to as “Aetna”). Pursuant to said policy Aetna may be required to provide Capitol with a defense to the claim of plaintiffs in the within action.
6. As a result of the aforementioned insurance policy Aetna may be required to satisfy a portion of the judgment presently held by plaintiffs.
7. Aetna was first notified of the instant suit on or about August 24, 1981 through written correspondence to its Parsippany, New Jersey branch office, said notice having been received by Aetna 15 days after default judgment was entered.
8. On August 25, 1981 Aetna’s Pittsburgh branch office was notified of the suit pending in Allegheny • County. On this same date Aetna retained counsel. Said counsel immediately contacted plaintiffs’ counsel who informed him that a Judgment by Default had been entered.
9. On August 25, 1981 counsel for Aetna requested the consent of plaintiffs to open the default judgment. Plaintiffs’ counsel advised defendant’s counsel that he would contact plaintiffs with regard to said request. On September 11, 1981, plaintiffs’ counsel informed defense counsel that plaintiffs would not grant said consent, hence this Petition.
10. Defendant Capitol denies that the ceramic tiles in question were defective or that it has breached any express or implied warranties to plaintiffs. Further, defendant believes and therefore avers that it may be entitled to contribution and/or indemnity from the manufacturer of said tile, who it intends to join as a party to this action.

The rule was granted on October 10, 1981 and, thereafter, defendant filed a notice to depose a John Pittenger, claims supervisor for Aetna Casualty & Surety, its insurance carrier.

At the October 29, 1981 deposition, Mr. Pittenger gave a qualified “yes” to the question of whether Aetna was required to provide a defense to Capitol Tile Import Co. for claims made against the insured for product liability. This was so since the witness did not have the policy of insurance before him and it was not written out of the Pittsburgh office. Thus, in making his response, he was relying upon the “claim face sheet,” a document indicating that Capitol Tile Import Co. was covered for product liability suits.

Mr. Pittenger testified that he learned of the instant suit on August 25, 1981 from a Dave Fitzgerald, one of the other supervisors in the Pittsburgh office. Mr. Fitzgerald had left a written note for Pittenger “indicating that [Fitzgerald] had received a call from a supervisor in [the] North Jersey office” who had told him about the suit. After receiving this communique, Mr. Pittenger contacted the law firm representing Capitol Tile Import Co. in Pittsburgh to determine the status of the complaint.

The first either the witness or Mr. Fitzgerald learned of the default judgment was on August 25, after Mr. Pittenger had conversed with counsel for Capitol Tile Import Co. At this time, Mr. Pittenger made a decision to try to open the judgment.

When questioned by counsel for the plaintiffs, the succeeding discourse ensued:

Q ... Mr. Pittenger, do you have any idea why you weren’t contacted prior to August 25, 1981 concerning this lawsuit?
A I would have to give you a qualified answer in that I would assume from the file that our first notice as a carrier was some time between August 21 and August 25. As to why, I have no idea.
Q So, you’re unaware of any reason why?
A No, I am unaware of any reason.
* * * sfc * *
Q Are you aware of the procedures that Capitol Tile uses when they get a complaint in their office — the procedures that they follow?
A I have no knowledge whatsoever.
Q Are you aware of the procedures that they follow when they get a notice — the important notice regarding a default judgment?
A I have no knowledge of that.
Q You are also not aware of whether or not a meritorious defense exists in this case; is that correct?
5¡í Jjt * * * *
A. I don’t think I know enough about the case at this point to give an answer.
(Emphasis added) (N.T. 8 & 9)

Concerning the dates regarding the filing of the notice to take a default judgment and the entry of same, the witness also testified that he was told by counsel for Capitol Tile Import Co. as to when they occurred. He had not acquired such information through company channels, despite the fact that Aetna instructs all those with whom it deals “to promptly report any loss[.]” (N.T. 11) He assumed that an agent would do the same. However, when asked by plaintiffs’ counsel “if [he] ha[d] any idea why they [Capitol] failed to inform [him] of the default judgment,” Mr. Pittenger answered, “I don’t have any idea at all, no.” (N.T. 12)

The scenario continues with the trial court’s entry of an Order dated February 1, 1981, opening the judgment to allow Capitol Tile Import Co. the opportunity to present a defense.

The court found, based upon “oral argument ... the briefs, depositions and affidavit filed” that Capitol Tile Import Co. had met all three prongs necessary to warrant the opening of a default judgment. This appeal followed.

Based on our review of the record evidence, we do not agree that Capitol Tile Import Co. has established either a meritorious defense or that it has presented a reasonable excuse for its failure to enter an appearance or file an answer. Such being the case, we need not embark on a discourse of whether the petition to open was promptly filed. See American Vending Co. v. Brewington, 289 Pa.Super. 25, 432 A.2d 1032 (1981). The fact that it may have been does not outweigh the absence of the other two factors, which we consider has tipped the scales against a finding in favor of Capitol Tile Import Co. See Provident Credit Corp. v. Young, 300 Pa.Super. 117, 446 A.2d 257 (1982).

As to the viability of Capitol Tile Import Co.’s defense to the complaint, we find that it took the form of an “Answer and New Matter,” the truth of which was sworn to in an “affidavit” by Seymour Katz, President and Chief Executive Officer of Capitol, dated March 1, 1982 and filed with the prothonotary on March 8. The problem arises because the trial court granted the petition to open by Order dated February 1, 1982, 29 days prior to the securement of the defense upon which the court asserted it looked to in opening the judgment. We would normally not find this a problem, except that, as is evident from our recounting of the facts supra, there is absolutely no support for an argument that a defense was submitted by the defendant-Capitol Tile Import Co. in any other document to the court, be it in the nature of a brief, pleading or deposition. To do otherwise, would be the equivalent of placing the proverbial “cart before the horse.” Being a court of “conscience,” see Provident Credit Corp. v. Young, supra, we cannot condone such an aberration of the law in light of the facts.

Turning to the last point concerning the “reasonableness” of defendant’s excuse in delaying in filing a petition to open after the default judgment was entered, we have carefully scrutinized the record and conclude that no valid reason has been advanced as to why Capitol Tile Import Co. waited as long as it did to file a petition to open when it had notice of the impending and ultimate default judgment.

Accordingly, the Order of the court below is reversed, and the plaintiffs-appellants are to have judgment entered in their favor as though no petition to open had ever been granted.

WIEAND, J., files a concurring statement.

WIEAND, Judge,

concurring:

I concur in the result. Although Capitol Tile Import Co. alleged a meritorious defense, i.e., that the ceramic tile was not defective, it failed to offer a reasonable excuse for the two months default which enabled appellants to enter a default judgment.