author: WIEAND, Judge.

text:
    615 A.2d 769
    COMMONWEALTH of Pennsylvania v. Paul L. COLLINGTON, a/k/a Fred Collington, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 16, 1992.
    Filed Nov. 5, 1992.

      James R. Wilson, Asst. Public Defender, Pittsburgh, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before WIEAND, DEL SOLE and HESTER, JJ.
   WIEAND, Judge.

Paul L. Collington was tried non-jury and was found guilty of making terroristic threats and intimidating a witness. On direct appeal from the judgment of sentence thereafter imposed, Collington contends only that the evidence was insufficient to sustain the conviction for intimidating a witness.

Collington had been arrested and was scheduled for trial on charges that he had raped his former fiancee, Carline Green. By letter dated March 11, 1990, postmarked March 12, 1990, and originating from the Allegheny County Prison, Collington wrote to Green. In that letter Collington complained that he had been “set up,” promised that revenge would be taken for an unexplained incident occurring on July 31,1987, and threatened that contracts had been placed on the lives of Green and her family. The letter did not refer specifically to Collington’s trial for rape. The letter arrived at Green’s residence and was hand-delivered to her at the courthouse on March 14, 1990, after she had testified as a Commonwealth witness in the rape trial and at a time when the defense was being present ed. Green recognized Collington’s handwriting on the envelope and delivered it, unopened, to a victim center’s advocate, who referred it to an attorney for the Commonwealth.

The Crimes Code, at 18 Pa.C.S. § 4952, provides in pertinent part as follows:

§ 4952. Intimidation of witnesses or victims
(a) Offense defined. — A person commits an offense if, with the intent to or with the knowledge that his conduct will obstruct, impede, impair, prevent or interfere with the administration of criminal justice, he intimidates or attempts to intimidate any witness or victim to:
(3) Withhold any testimony, information, document or thing relating to the commission of a crime from any law enforcement officer, prosecuting official or judge.

From this it is apparent that actual intimidation of a witness is not an essential element of the crime. The crime is committed if one, with the necessary mens rea, “attempts” to intimidate a witness or victim. Thus, it was not essential to a conviction that Green actually receive the threatening letter before she testified. The letter was written and mailed on the eve of appellant’s trial and before his accuser had given testimony. The trier of the facts, therefore, could find that appellant attempted to intimidate his accuser and that he did so intending or, at least, having knowledge that his conduct was likely to, impede, impair or interfere with the administration of criminal justice.

The fact that the letter did not refer specifically to the rape trial or Green’s testimony therein is also not fatal to the Commonwealth’s case. The contents and timing of the letter, together with the circumstances surrounding the same, were sufficient, if believed, to permit an inference that it had been written and sent for the purpose of intimidating the witness whose testimony was crucial to establish the charge of rape against appellant in the impending trial. The Commonwealth is not required to prove mens rea by direct evidence. Frequently such evidence is not available. In such cases, the Commonwealth may rely on circumstantial evidence.

When the direct and circumstantial evidence is viewed in a light most favorable to the Commonwealth, as we are required to view it, see Commonwealth v. Heidnik, 526 Pa. 458, 463, 587 A.2d 687, 689 (1991), it is patently clear that such evidence was sufficient to support the trial court’s finding that appellant had attempted to intimidate Ms. Green in order to interfere with the prosecution of the criminal charges against him.

Judgment of sentence affirmed.

      . Collington was found not guilty of retaliation.


source: Caselaw Access Project

author: CAVANAUGH, Judge.

license: Public Domain

text:
    615 A.2d 771
    Ken JOHNSON, Appellee, v. Jane HARRIS; the Sunbury Eagles; the Milton Eagles; the Milton Legion Home Association; and Ken Aikey and Delores Aikey, Jointly and Individually and t/d/b/a The Halfway House. Appeal of Jane HARRIS. Ken JOHNSON, Appellant, v. Jane HARRIS; the Sunbury Eagles; the Milton Eagles; the Milton Legion Home Association; and Ken Aikey and Delores Aikey, Jointly and Individually and t/d/b/a The Halfway House.
    Superior Court of Pennsylvania.
    Submitted June 29, 1992.
    Filed Nov. 5, 1992.

      John P. Pietrovito, Williamsport, for Jane Harris.
    Richard J. Callahan, Williamsport, for Ken Johnson.
    Robert A. Seiferth, Williamsport, for the Sunbury Eagles.
    R. Michael Kaar, Milton, for the Milton Eagles.
    Christopher J. Foust, Milton, for the Milton Legion Home Assoc.
    Henry W. Mitchell, Williamsport, for Ken & Dolores Aikey.
    Before CAVANAUGH, OLSZEWSKI and MONTGOMERY, JJ.
   CAVANAUGH, Judge.

This is an appeal from a December 23,1991 order granting summary judgment to the appellees, several establishments which allegedly sold the appellants alcoholic beverages prior to their involvement in a one-vehicle accident. The lower court determined, based on the record properly before it, that no trial worthy issue of material fact existed as to whether the driver of the accident vehicle, Jane Harris, had been served alcohol by the appellees while visibly intoxicated. The Court accordingly found that the appellees could not be found liable under the Pennsylvania Dram Shop Act, 47 Pa.S.A. § 4-493(1), which subjects a purveyor of alcoholic beverages to liability for the injuries caused by persons served while visibly intoxicated. After reviewing the parties’ briefs and the record, we are constrained to agree that summary judgment was appropriately granted in this case. We affirm.

The relevant facts and procedural history are as follows. This case arises out of a one-vehicle accident which occurred at approximately 9:40 p.m. on December 21, 1988. Appellant Jane Harris (“Harris”) was the driver of the vehicle, and appellant Ken Johnson (“Johnson”) was her passenger. Johnson sustained serious injuries in the accident. Harris and Johnson are friends, who prior to the accident, had, on occasion, frequented several different local drinking establishments together. Subsequent to the accident, Johnson commenced a civil action against Harris and various dispensers which had allegedly sold them alcoholic beverages that day, appellees the Sunbury Eagles, the Milton Eagles, the Milton Legion Home Association and Ken Aikey and Delores Aikey, jointly and individually and t/d/b/a The Halfway House. Johnson alleged that the appellees violated the Dram Shop Act, 47 Pa.S.A. § 4-101 et seq., by serving Harris alcohol while she was “visibly intoxicated.”

There was evidence that at approximately noon on December 21, 1988, Harris drove to Johnson’s mother’s house, where Johnson lives, and picked him up. They traveled to the Chestnut Street Inn, where they both had approximately three (3) 12-ounce bottles of Genny Lite beer. Both appellants recalled that there was a bartender and several customers in the Inn, although they do not remember their names. At approximately 1:00 p.m., Harris and Johnson walked to the nearby Sunbury Eagles, where there was a female bartender and a few patrons. Johnson recognized the bartender and several of the patrons, although he did not know their names. At the Sunbury Eagles, they consumed several 16 ounce Genny Lite beers, although their testimony differs as to how many beers. Johnson believes they each had about six (6) to eight (8) beers, while Harris recalls that together they shared three (3) beers, with her consuming one (1). After watching a movie, Harris drove Johnson to another club, the Milton Eagles. Harris stated that the bar was full of people when they left it. Johnson did not notice anything peculiar about her or her driving at that time.

Both Johnson and Harris’ memory is hazy in relation to what occurred subsequently. Johnson remembers being at the Milton Eagles, but does not recall what he did there. He remembers later being at the Milton American Legion, where he gambled and drank beer. Although initially stating he did not remember whether he went to The Halfway House, he later vaguely recalled stopping there. He distinctly remembers that it was his impression that Harris was not intoxicated the night of the accident. Harris recalls being at the Milton Eagles and the Milton American Legion, and having Genny Lite beer at both. She does not remember how much she drank at each place, nor whether she went to The Halfway House that night. She recalls leaving the Milton American Legion sometime after six o’clock.

An affidavit submitted by a bartender at The Halfway House, Delores Aikey, indicates that Johnson and Harris came into the bar at approximately 7:45 p.m. The affidavit states that neither appellant was served alcoholic beverages, and that after Johnson used the bathroom, both left the bar. All parties agree that the accident happened at approximately 9:40 p.m.

This lawsuit originated by a writ of summons filed by Johnson and sent to Harris and the appellees on March 16, 1989. On May 17, 1989, Johnson filed interrogatories and requests for production. On September 16, 1990, Johnson filed his Complaint, which was subsequently answered by the appellees. The appellees filed for summary judgment in June, July and August of 1991. In their motions, all the appellees referred to the deposition testimony of Johnson and Harris as failing to indicate any evidence that Harris was served alcohol while she was visibly intoxicated. Johnson responded on November 26, 1990, by filing the affidavit of Donald K. Weaver, M.D.

The lower court granted appellees’ motions on December 28, 1991. In ruling on the summary judgment motions, the court noted that the only evidence Johnson produced that indicated Harris was visibly intoxicated was an affidavit compiled by Donald K. Weaver, M.D. In pertinent part, it states:

“In reference to ... [this] ... matter, I have reviewed the following documents:
1. The police report;
2. The toxicology report as well as copies of lab tests of Jane Harris from the Geisinger Medical Center from her hospitalization which began December 21,1988. The report indicates a blood level at .226;
3. A copy of the transcript of deposition of Jane Harris taken November 1, 1989;
4. A copy of the deposition of Ken Johnson taken January 30, 1990.
After reviewing the above documents, I have had the following observations:
1. It is probable that the blood alcohol concentration of Jane Harris was 0.226 or higher at the time of the accident and was close to this level at the Halfway House and when she left the Legion in Milton;
2. At the other end of the day, Ms. Harris’ blood alcohol concentration would have been around 0.07 when she began drinking at the Sunbury Eagles.
Ms. Harris’ blood alcohol concentration would have exceeded 0.10% during the time when she was drinking at the Sunbury Eagles and probably would have exceeded 0.15 by the time they left the Sunbury Eagles.
Ms. Harris’ blood alcohol concentration would have been about 0.15% or greater while drinking at the Eagles in Milton and subsequently at the Legion in Milton.
Based on my experience, a person with a blood alcohol content of 0.10% or greater has the following visible signes [sic] of intoxication:
A A decreased capacity for hearing resulting in a person usually speaking louder;
B. Decreased dexterity typically resulting in sudden awkward movements;
C. Motor skills diminished;
D. A person’s reaction time is compromised.
The aforementioned visible signes [sic] of intoxication becomes more pronounced as a person’s blood alcohol concentration is 0.15% or greater. In addition, a person’s speech is typically slurred, awkward movements are more pronounced and sometimes bloodshot eyes are clearly visible.”

The Court declared that in defining a violation of the Dram Shop Act as the dispensation of alcoholic beverages to a person “visibly intoxicated,” the Act stresses what can be seen. See Laukemann v. Commonwealth of Pennsylvania, Pennsylvania Liquor Control Board, 82 Pa.Cmwlth. 502, 475 A.2d 955, 956 (1984). It ruled that Dr. Weaver’s foregoing affidavit, which is based on generalized conclusions about the effects of alcohol on the average person, and not his personal observations of Harris on the day of the accident, was insufficient to create a genuine issue of fact. The court emphasized, moreover, that Johnson testified at his deposition that Harris did not appear visibly intoxicated on the day of the accident. It also stated that Johnson failed to respond to any of the appellees’ interrogatories requesting the names of any witnesses who observed Harris being served alcohol while visibly intoxicated. The court additionally based its ruling on the fact that at oral argument Johnson admitted to having no witnesses who would testify that Harris was visibly intoxicated on the day of the accident.

A motion for summary judgment may be properly granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. 1035(b). See also Liles v. Balmer, 389 Pa.Super. 451, 453, 567 A.2d 691, 692 (1989); Pestalozzi v. Philadelphia Flyers Ltd., 394 Pa.Super. 420, 423, 576 A.2d 72, 73 (1990); Craddock v. Gross, 350 Pa.Super. 575, 577-8, 504 A.2d 1300, 1301 (1986). The ultimate inquiry in deciding a motion for summary judgment is whether the admissible evidence in the record, considered in the light most favorable to the respondent to the motion, fails to establish a prima facie case. Liles, supra, 389 Pa.Super. at 454, 567 A.2d at 692. When a motion for summary judgment is made and supported as provided in Rule 1035, the non-moving party may not rest on the averments made in his pleading. Liles, supra, 389 Pa.Super. at 453, 567 A.2d at 692; Alberici v. Tinari, 374 Pa.Super. 20, 22, 542 A.2d 127, 127-8 (1988); Community Med. Services v. Local 2665, Etc., 292 Pa.Super. 238, 244-5, 437 A.2d 23, 26-7 (1981). Rather, it is his responsibility to show that a genuine issue of fact exists by affidavit or otherwise. Liles, supra, 389 Pa.Super. at 453-4, 567 A.2d at 692; Alberici, supra, 374 Pa.Super. at 22, 542 A.2d at 128; Community Med. Services, supra, 292 Pa.Super. at 244-5, 437 A.2d at 26-7. Summary judgment may be entered only in cases that are clear and free from doubt. McDonald v. Marriott Corp., 388 Pa.Super. 121, 124, 564 A.2d 1296, 1297 (1989). Moreover, the court’s function in summary judgment proceedings is not to determine the facts, but only to determine if a genuine issue of fact exists. Id., 388 Pa.Super. at 124, 564 A.2d at 1297, 1298 (1989). “[A]n order granting a motion for summary judgment will not be reversed unless the court below has committed an error of law or clearly abused its discretion.” Id., 388 Pa.Super. at 125, 564 A.2d at 1298; accord Ackler v. Raymark Indus., Inc., 380 Pa.Super. 183, 185-6, 551 A.2d 291, 292 (1988).

The Pennsylvania Dram Shop Act contains two pertinent provisions:

§ 4-493 Unlawful Act relative to liquor, malt and brewed beverages
******
(1) It shall be unlawful for any licensee or the board, or any employee, servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated ...
******
§ 4-497 Liability of licensee
No licensee shall be liable to third persons on account of damages inflicted upon them off of the licensed premises by customers of the licensee unless the customer who inflicts the damages was sold, furnished or given liquor or malt or brewed beverages by the said licensee or his agent, servant or employee when the said customer was visibly intoxicated.

47 P.S. §§ 4r-493(l) & 4-497. A violation of this statute is deemed negligence per se, and if the violation is the proximate cause of the plaintiffs injuries, then the defendant is held liable. Majors v. Brodhead Motel, 416 Pa. 265, 268, 205 A.2d 873, 875 (1965); McDonald, supra, 388 Pa.Super. at 125, 564 A.2d at 1298; Couts v. Ghion, 281 Pa.Super. 135, 140, 421 A.2d 1184, 1187 (1980) (lead opinion by Hoffman, J.). Thus, in order for an injured plaintiff to recover, the following two things must be proven: (1) that the plaintiff was served alcoholic beverages by a licensee while visibly intoxicated and (2) that this violation of the statute proximately caused the injuries. McDonald, supra, 388 Pa.Super. at 125, 564 A.2d at 1298.

Johnson asserts there is a genuine issue of fact as to Harris being served while she was visibly intoxicated for the following reasons. First, his deposition and Harris’ deposition establishes that Harris was served alcoholic beverages at each of the aforementioned taverns. Second, Dr. Weaver’s affidavit outlines the typically visible signs of intoxication of a persons in relation to their level of blood alcohol concentration, and indicates that the average person would have displayed visible signs of intoxication given Harris’ speculated blood alcohol concentration at all places. Third, in his “Motion to Reconsider,” Johnson submitted an affidavit sworn to by his attorney to the effect that Delores Aikey, a bartender at The Halfway House, could testify that Harris and Johnson were visibly intoxicated when they entered The Halfway House.

Harris makes similar arguments in support of her position, which are as follows. First, she notes that her deposition testimony and Johnson’s indicate that both consumed a significant amount of alcohol on December 21, 1988, between 12:30 p.m. and 9:40 p.m.. Second, she notes that a blood alcohol test given one hour after the accident showed she had a blood alcohol content of 0.226. Third, similar to Johnson, she relies on Dr. Weaver’s affidavit. She avers the evidence in this case equals or exceeds the circumstantial evidence in Couts v. Ghion, 281 Pa.Super. 135, 421 A.2d 1184 (1980), and recommends for our consideration Liles v. Balmer, 389 Pa.Super. 451, 567 A.2d 691 (1989).

We agree in the main with the lower courts’ analysis, and find instructive our sister court’s pronouncements in Laukemann, supra, as to the proper meaning of “visibly intoxicated:”

[ I]n defining the violation as the dispensation of alcoholic beverages to a person “visibly intoxicated,” the statute displays considerable logic in placing stress upon what can be seen. The law does not hold a licensee or its agent responsible on any basis, such as blood alcohol level of a patron, which would not be externally apparent; instead, the law decrees that the alcoholic beverage dispenser shall not provide more alcohol when the signs of intoxication are visible. The practical effect of the law is to insist that the licensee be governed by appearances, rather than by medical diagnoses.

Id., 82 Pa.Cmwlth. at 506, 475 A.2d at 956-57 (emphasis supplied). Accord McDonald, supra, 388 Pa.Super. at 127, 564 A.2d at 1298 (summary judgment properly granted where there was insufficient evidence to go to a jury that plaintiff was visibly intoxicated when served alcoholic beverages). A review of the Record displays that there is nothing to indicate that Harris was served while visibly intoxicated at any of the drinking establishments. Quite the contrary is true. Johnson asserted in his deposition testimony that Harris was not visibly intoxicated the day of the accident. Harris’ deposition testimony avers that she believed she did not display any signs of visible intoxication. Johnson failed to answer any of the appellees’ interrogatories requesting the names of witnesses to Harris’ visible intoxication, and at oral argument admitted to having no witnesses who would testify to Harris’ visible intoxication.

Dr. Weaver’s affidavit is not sufficient to create a genuine issue of fact in light of the foregoing. The affidavit attempts to “relate back,” based on a blood-alcohol level of 0.226 and the depositions of Harris and Johnson, the probable alcohol concentration of Harris at various establishments before the accident, and indicate at those points the visible signs of intoxication that the average person would have. The Pennsylvania Supreme Court has on various occasions discussed the complexity of “relation back” testimony, and has indicated that it should be used guardedly. Commonwealth v. Gonzales, 519 Pa. 116, 546 A.2d 26 (1988); see also, Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992); Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992). We are accordingly wary of an attempt to create a genuine issue of fact as to “visible intoxication” based on medical testimony of what the average person’s reaction might have been assuming Harris’ “probable” blood alcohol concentration. There is no indication that Harris’ reaction to alcohol ingestion correlates with the average person’s. Moreover, Johnson, the complaining party, asserted that Harris did not appear to be intoxicated at any time on the day of the accident. Given that appellants admitted inability at oral argument to produce even one witness to support their position, summary judgment was properly granted.

We believe that the value of Dr. Weaver’s affidavit is even less given that appellants are unable to contest that Harris wasn’t served in The Halfway House. Delores Aikey in her affidavit relates that appellants came into The Halfway House at 7:40 p.m. and left without being served a drink after Johnson used the bathroom. The appellants have not placed in issue that they were even served alcohol by The Halfway House, much less were served while visibly intoxicated. Dr. Weaver’s affidavit makes no assertion that Harris was served at that establishment; Harris’ deposition indicates she does not even remember going to The Halfway House; and Johnson only vaguely remembers being there. Thus, Dr. Weaver’s observations only have relevance to drinking establishments the appellants visited before The Halfway House. Given the dubious nature of “relation back” testimony, this makes his assumptions even more tenuous.

We do not find analogous the cases appellant Harris commends to our attention, Couts v. Ghion, 281 Pa.Super. 135, 421 A.2d 1184 (1980) and Liles v. Balmer, 389 Pa.Super. 451, 567 A.2d 691 (1989).

In Couts, we considered, in the context of a compulsory non-suit, whether it was necessary to have direct eyewitness evidence that a person was visibly intoxicated before a dram shop could be held liable under 47 P.S. § 4-493(1). In that case, a patron of a drinking establishment had a motor vehicle accident after excessive alcohol intake. Although the patron did not produce anyone who observed his visible intoxication before the accident, there were several substantial pieces of circumstantial evidence that indicated he was served in that condition. This circumstantial evidence included the arresting officer’s testimony that after the accident the patron appeared quite visibly intoxicated. Other circumstantial evidence included testimony which established that the appellant consumed a substantial amount of alcohol while at a drinking establishment; that he had driven erratically without using his car’s headlights at night after leaving that establishment; and that his blood alcohol content was tested as 0.12 three hours after the accident. Id., 281 Pa.Super. at 142, 421 A.2d at 1188. In a plurality decision, we declared that this was sufficient circumstantial evidence to go to a jury. Id. We do not find that Dr. Weaver’s rather speculative affidavit, which contradicts the appellant’s deposition testimony, is analogous to the strong circumstantial evidence of visible intoxication in Couts.

Appellant Harris relies on Liles, supra, for the proposition that for summary judgment to be appropriately granted, the appellees must submit an affidavit or a stipulation that Johnson will not be able to produce evidence at trial to support his contentions. We do not read Liles to contradict long-standing summary judgment practice. In Liles, the plaintiff fell off a moped and suffered amnesia after being allegedly chased in front of the defendant’s house by defendant’s dog. Because of her amnesia, appellant could not remember any details concerning the accident. The defendant denied that her dog had ever left the back yard, and moved for summary judgment. This court denied the motion. We noted that a police report had indicated that the fall had taken place because “[a] dog ran out of the yard towards [Mrs. Liles].” Id., 389 Pa.Super. at 455, 567 A.2d at 692. We also noted that the hospital report likewise supported the plaintiffs version. Id. Given the police and hospital reports, we found that the plaintiff very well might be able to support the averments of her complaint at trial. Id. We felt that, given these reports, the party moving for summary judgment had not shown that the plaintiff could not prove her averments at trial. We commented, however, that our ruling might have been different if the defendant had submitted affidavits or a stipulation that indeed displayed there was no genuine issue of fact. Id., 389 Pa.Super. at 456-7, 567 A.2d at 693. Thus, Liles is inapposite, in that the appellees presently have submittéd evidence in their motion for summary judgment indicating, through the appellant’s own words, that no genuine issue of fact exists concerning Harris’ being served while visibly intoxicated.

Before concluding, we address Johnson’s contention that the lower court erred in refusing to review his “Motion to Reconsider.” After the lower court granted summary judgment, Johnson filed this motion. Attached to it was an affidavit, sworn to by his counsel, Richard J. Callahan, which indicates that Delores Aikey could testify that the appellants were visibly intoxicated when they came into The Halfway House. Johnson maintains that the lower court “totally ignored” this Motion, which he feels creates a genuine issue of fact. The lower court did not err by failing to consider Johnson’s “Motion to Reconsider.”

Johnson has not pointed us to any provisions for a “Motion for Reconsideration” in our Rules of Civil Procedure applicable to Orders Granting or Denying Motions for Summary Judgment. Such a motion would appear not to exist, as an order rendering summary judgment is final and immediately appealable. Reifinger v. Holiday Inns, Inc., 315 Pa.Super. 147, 151, 461 A.2d 839, 841 (1983); Lane v. Schacht, 260 Pa.Super. 68, 74, 393 A.2d 1015, 1018 (1978); Husak v. Berkel, 234 Pa.Super. 452, 455 n. 1, 341 A.2d 174, 175 n. 1 (1975).

Assuming that such a Motion (applicable after a Summary Judgment Order) exists, we do not believe that such a motion can be allowed to submit testimonial evidence that could have been submitted before the summary judgment order was issued. According to attorney Callahan’s affidavit, Callahan had knowledge on February 16, 1989, that Mrs. Aikey had apparently witnessed Harris come into The Halfway House visibly intoxicated. This was long before Johnson was served with appellees’ Motions for Summary Judgment and the lower court’s ruling. Thus, there exists a clear lack of diligence in pursuing competent evidence from Mrs. Aikey. We find analogous our rule that additional evidence submitted by a party after trial may only warrant a new trial in limited circumstances, namely, where (1) the evidence was discovered after the trial; (2) the evidence must be such that it could not have been obtained at the trial by reasonable diligence; and (3) the evidence must be such as would likely compel a different result. Ebner v. Ewiak, 335 Pa.Super. 372, 380, 484 A.2d 180, 184-5 (1984); R & S Millwork, Inc. v. Commonwealth, Department of Transportation, 42 Pa.Cmwlth. 624, 828, 401 A.2d 587, 589 (1979). To allow a party to submit evidence that could have been attained with reasonable diligence before the court’s ruling would eviscerate the summary judgment rule. Such a practice encourages deleterious discovery, wastes judicial resources in revisiting the same issues, and discourages parties from treating summary judgment with the gravity it deserves.

In any event, even if we could consider the Callahan affidavit, it provides no clearer picture as to whether appellant Harris was visibly intoxicated while served alcohol at any of the aforementioned drinking establishments. The Callahan affidavit does not contradict Delores Aikey’s prior statement that appellant Harris was not served alcohol at The Halfway House. The affidavit also fails to show that the appellants were visually observed being served while intoxicated at the other establishments. The affidavit merely suggests that appellant Harris may have appeared to be intoxicated at The Halfway House which, given the vague and contradictory testimony of the appellants, provides no indication of her visible intoxication at any of the establishments during earlier hours.

The legal task is not to determine whether, if the appellant’s counsel had been more vigorous during discovery, a genuine issue of fact might have been found to exist in this matter. Rather, the courts are constrained to examine the record to determine the existence of a genuine issue of fact. We find that the record fails to show that there is a genuine issue of fact that Harris was served by any of the appellees while visibly intoxicated, and we conclude that summary judgment was appropriately granted.

Order affirmed.

      . We note the seeming incongruity between appellant Harris' deposition testimony that she was not intoxicated and her claim before us that she was "visibly intoxicated.”

      . Although we base our ruling on other grounds, we note that the appellants ambiguity as to what drinking establishments they visited and as to how much Harris had to drink at these establishments seriously calls into question the weight that should be afforded Dr. Weaver’s affidavit.

      . Of the three judge panel in Couts, one judge wrote the plurality, one judge dissented and one judge concurred in the result. An opinion offered by one member of a three-member panel, with the remaining two judges either dissenting or concurring in the result, is of no precedential value. Commonwealth v. Hurst, 367 Pa.Super. 214, 221, 532 A.2d 865, 869 (1987); Askew by Askew v. Zeller, 361 Pa.Super. 35, 39-40, 521 A.2d 459, 462 (1987). Accordingly, we note for the appellant Harris’ benefit that Couts has no precedential value.
      We feel that it is in the best spirit of our Rules of Professional Responsibility for an advocate to clearly label a plurality decision, either by proper citational form or by otherwise appropriately informing us in some other way of its nonbinding status. See Rules of Professional Responsibility, 42 Pa.C.S.A., EC 7-22 & 7-23. Candor to the tribunal would seem to require nothing less, as it is of the utmost importance for a correct disposition that the court not be 'misled about the precedential nature of a decision. Parenthetically, we note that on at least one occasion, a panel of this court treated Couts v. Ghion as authority. See Speicher v. Reda, 290 Pa.Super. 168, 172, 434 A.2d 183, 185 (1981) (Couts v. Ghion deemed, without comment or analysis of its plurality status, as "very much in point”).

      . Appellant Harris’ reading of Liles would eviscerate summary judgment practice as has been heretofore practiced in this Commonwealth. It would place the burden on the party moving for summary judgment to produce, in addition to evidence showing a genuine issue of fact is nonexistent, evidence which shows that the non-moving party could not possibly rebut the moving party’s showing. Simply put, the tenor of the appellant Harris’ argument is that summary judgment is not appropriately granted until the moving party shows that there is no possible evidence from which the appellant could prove their case at trial.
      We emphatically reject this view. Summary judgment is an adversarial proceeding. Once the moving party produces evidence showing no genuine issue of fact exists, the non-moving party cannot rest on its averments. Liles, supra, 389 Pa.Super. at 453, 567 A.2d at 692; Alberici v. Tinari, supra, 374 Pa.Super. at 22, 542 A.2d at 127-8; Community Med. Services, supra, 292 Pa.Super. at 244-5, 437 A.2d at 26-7. It is the responsibility of the non-moving party, by affidavit or otherwise, to show a genuine issue of fact exists. Liles, supra, 389 Pa.Super. at 453, 567 A.2d at 692; Alberici v. Tinari, supra, 374 Pa.Super. at 22, 542 A.2d at 127-8; Community Med. Services, supra, 292 Pa.Super. at 244-5, 437 A.2d at 26-7. To accept the appellant's argument would negate any responsibility on the non-movant’s part to frame genuine issues for trial.

      . The affidavit states that on February 16, 1989, attorney Callahan spoke with Mrs. Aikey, who told him that the appellants came into The Halfway House intoxicated and that she refused to serve them. It also relates a conversation on or around January 13, 1992, between attorney Callahan and Mrs. Aikey’s attorney which allegedly indicates that she could testify that Harris was visibly intoxicated when she entered The Halfway House.

      . The only observations by Mrs. Aikey that are properly of record are contained in her affidavit of July 22, 1991, which was attached to The Halfway House’s Motion for Summary Judgment. As noted supra, this affidavit does not state that Mrs. Aikey observed Harris to be visibly intoxicated when the appellants entered The Halfway House. Mrs. Aikey avers in the affidavit that Johnson and an unidentified woman came into The Halfway House at approximately 7:45 p.m., Johnson used the men’s room and both left without consuming any alcoholic beverages.


author: OLSZEWSKI, Judge:

text:
    615 A.2d 779
    Ethel ARCHER, Appellant, v. STATE FARM INSURANCE COMPANY, & Pennsylvania Financial Responsibility Assigned Claims Plan & Liberty Mutual Insurance Co. & Lydia Merriweather, Appellees.
    Superior Court of Pennsylvania.
    Submitted Aug. 3, 1992.
    Filed Nov. 5, 1992.

      Neil Leibman, Bala Cynwyd, for appellant.
    Teresa F. Sachs, Philadelphia, for appellees.
    Before OLSZEWSKI, MONTEMURO and CERCONE, JJ.
   OLSZEWSKI, Judge:

Ethel Archer appeals the order entered December 17, 1991, in the Court of Common Pleas of Philadelphia County, granting State Farm Insurance Company’s (State Farm’s) motion for summary judgment. The underlying action arose out of an automobile accident which occurred in Philadelphia on July 8, 1987. We adopt the facts as set forth by the trial court:

Plaintiff [Archer] filed this action against Lydia Merriweather, Liberty Mutual Insurance Company, State Farm Insurance Company, and the Assigned Claims Plan of the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. §§ 1751-57 (Purdon Supp.1991), for injuries sustained in a motor vehicle accident caused by Merriweather. On July 8, 1987, Plaintiff was a passenger in an automobile insured by State Farm which was rear ended by a second automobile driven by Merriweather and insured by Liberty Mutual. Plaintiff seeks underinsured motorist benefits from State Farm because the Liberty Mutual policy limits on Merriweather’s car are inadequate to cover Plaintiffs damages. Judge D’Allessandro dismissed Plaintiffs Complaint against the Assigned Claims Plan after determining that the Plan is not a proper source of benefits where Plaintiff has other insurance policy benefits available to her. 75 Pa.C.S.A. § 1752(a)(6). On August 3, 1989, Plaintiff executed a release in favor of Defendants Liberty Mutual and its insured, Merriweather. Plaintiff, however, failed to notify State Farm of her intention to settle with these Defendants and, in fact, State Farm did not receive notice of the settlement until September 13, 1989. Equally important, State Farm’s September 5, 1989 letter to Plaintiff reveals State Farm’s belief that no release had been executed with Merriweather and State Farm’s immediate concern that its subrogation rights be protected. State Farm never consented to the settlement. State Farm argues that summary judgment is proper here because its subrogation rights were destroyed when Plaintiff executed the release without the consent or knowledge of State Farm, and in violation of the consent-to-settle clause under Endorsement 6895CC of the State Farm policy. Plaintiff argues that she did not execute a general release and because the language of the release explicitly reserves State Farm’s subrogation rights, it is not entitled to summary judgment. The central issue before this Court is whether a genuine issue of material fact exists regarding the failure of Plaintiff to notify and receive the consent of State Farm prior to executing the release with Liberty Mutual and Merriweather. We conclude that no issue exists and State Farm is entitled to judgment as a matter of law. Pa.R.C.P. Rule 1035(b), 42 Pa.C.S.A. (Purdon 1987).

Trial court opinion, 3/10/92, at 1-3; R.R. at 3a-6a.

Archer presents six issues for our review:

Did the lower court fail to consider the fact that appellant preserved the appellee’s subrogation rights in deciding appellees’ motion for summary judgment?
Did the lower court consider the denial of liability by the appellee in making its decision?
Did the lower court fail to consider the equities of the case in making its decision on appellee’s motion?
Did the lower court fail to consider the entire insurance policy in deciding the appellee’s motion?
Did appellee fail to protect its subrogation interest by its failure to join the settling tortfeasor as an additional defendant?
Did the lower court incorrectly find that there were no factual issues?

Initially, we note that this Court will disturb the trial court’s grant of summary judgment only where there has been a clear abuse of discretion or an error of law. Brecher v. Cutler, 396 Pa.Super. 211, 578 A.2d 481 (1990). The motion is properly granted where:

the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.

Pa.R.C.P., Rule 1035(b), 42 Pa.C.S.A. The moving party has the burden of proving the non-existence of any genuine issue of material fact. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). The court must view the record in the light most favorable to the non-moving party, resolving any doubts against the moving party as to the existence of genuine issues of material fact. Id. We find that the trial court’s grant of summary judgment was proper.

Appellant first argues that her settlement with Liberty Mutual did not violate State Farm’s protected rights under the consent to settle clause in their agreement, because she preserved State Farm’s right of subrogation. Accordingly, her argument goes, the obligation of State Farm to provide coverage was not extinguished, and an issue of fact still exists concerning coverage. We disagree. Appellant’s argument is apparently based upon the following passage in the “Release and Settlement of Claim” signed by Archer:

[Archer] hereby releases and forever discharges LYDIA MERRIWEATHER, ROYCE MERRIWEATHER, AND LIBERTY MUTUAL INSURANCE COMPANY and all other persons, firms and corporations from all claims and demands, rights and causes of action of any kind the undersigned now has or hereafter may have on account of or in any way growing out of Personal Injuries existing or which may exist which are known or unknown to me at the present time and Property Damage resulting or to result from an occurrence which happened on or about July 8, 1987 ...

Typed into but apparently not part of the original settlement form is the phrase: “except for claims for underinsurance and first party benefits against Assigned Claims Plan and State Farm Insurance.” See motion for summary judgment of defendant State Farm Insurance Company, 11/7/91, Exhibit C.

For our purposes, the relevant portion of the State Farm Insurance policy states:

OUR RIGHT TO RECOVER PAYMENT
A. If we make payment under this policy and the person to or for whom payment was made has a right to recover damages from another we shall be subrogated to that right. That person shall do: 1.) Whatever is necessary to enable us to exercise our rights; and 2.) Nothing after loss to prejudice them.

State Farm Insurance policy at 13. This contract provision intended to allow State Farm to pursue a cause of action on the insured’s behalf, when State Farm had paid the insured benefits on a claim. This is known as the equitable right of subrogation. 35 P.L.E. § 1 (1961). In this case, Archer entered a settlement which released her claims against the Memweathers and Liberty Mutual Insurance Company. Accordingly, only the Assigned Claims Plan and State Farm remained as potential defendants. State Farm, asserting claims on behalf of Archer, only had a claim against the Assigned Claims Plan. However, Archer’s claim against the Assigned Claims Plan was extinguished when the Court of Common Pleas of Philadelphia County dismissed with prejudice Archer’s complaint against the Plan. See order of Judge D’Allessandro, 8/30/89, unnumbered docket entry. State Farm’s right to pursue recovery through Archer — the right of subrogation — was destroyed. Archer’s attempt to preserve the rights of subrogation in the settlement and release form was completely ineffectual. More importantly, Archer pursued the settlement with Liberty Mutual without notifying State Farm. Archer’s actions in this regard contravened the insurance policy, which stated:

EXCLUSIONS:
A. We do not provide Uninsured/Underinsured Motorist Coverage for bodily injury sustained by any person: ... 2. If that person or the legal representative settles the bodily injury claim without our consent.

State Farm Insurance policy at 9.

Although we have held that a claimant who consummates a settlement agreement without the written consent of the Assigned Claims Plan designee may not recover uninsured, motorist benefits from the designee insurer, Cotton v. Ins. Co. of North America, 344 Pa.Super. 602, 497 A.2d 254 (1985), this Court has not yet addressed the availability of underinsured motorist benefits where the insured settles with a tortfeasor in violation of a consent to settle clause in a private insurance policy. Our holding in Cotton was based upon the Uninsured Motorist Act, which stated in pertinent part:

(e) the coverage required by this section does not apply:
(2) to bodily injury sustained by the insured with respect to which the insured or his representative shall, without the written consent of the insurer, make any settlement with or prosecute to judgment any action against any person who may be legally liable therefore.

40 Pa.S. § 2000(e)(2) (repealed). In Cotton, we noted that the aim of § 2000(e)(2) was “to protect the subrogation rights of the [Assigned Claims Plan].” Cotton, 344 Pa.Super. at 603-04, 497 A.2d at 255.

More recently, we addressed the question of whether an Assigned Claims Plan designee insurer may deny first-party benefits on the basis of a consent to settle clause, where a claimant settles with the tortfeasor without the designee’s consent. Melendez v. Pennsylvania Assigned Claims Plan, 384 Pa.Super. 48, 557 A.2d 767 (1989). In that case, plaintiff filed a complaint against Travelers Insurance Company, the designee of the Assigned Claims Plan, without notifying Travelers that she had executed a release in favor of the tortfeasor. Travelers’ motion for summary judgment was granted because the court found that appellant’s release of the tortfeasor extinguished Travelers’ right to subrogation. Subrogation by the Assigned Claims Plan designee is authorized by the Pennsylvania Financial Responsibility Law:

the Assigned Claims Plan or its assignee is entitled to recover, in accordance with the tort liability law of this Commonwealth, reimbursement for benefits or coverage paid, loss adjustment costs and any other sums paid to an eligible claimant under this chapter.

75 Pa.C.S.A. § 1756.

In Melendez, we compared our reasoning concerning the Financial Responsibility Law with our rationale in Cotton, concerning the Assigned Claims Plan. We concluded that although the language in the two acts was not identical, the purpose of these statutes was to protect the subrogation rights of the insurer. Melendez, 384 Pa.Super. at 50-52, 557 A.2d at 768. We went on to state that:

[ u]nder the relevant caselaw of this Commonwealth dealing with both contractual and statutory insurance subrogation issues, it is clear that where an injured party extinguishes an insurer’s subrogation rights by settling and releasing an alleged tortfeasor, the injured party loses his right to recover from the insurer.

Id., 384 Pa.Super. at 52, 557 A.2d at 769 (citations omitted) (emphasis supplied).

The rationale supporting these decisions is that when an insured nullifies an insurer’s ability to enforce its subrogation rights, by settling with and releasing an alleged tortfeasor, the injured party is no longer entitled to recover from the insurer. See Nagle v. Allstate Ins. Co., 358 Pa.Super. 82, 516 A.2d 1191 (1986); Littlejohn v. Keystone Ins. Co., 353 Pa.Super. 63, 509 A.2d 334 (1986); Bradford v. American Mut. Liab. Ins. Co., 213 Pa.Super. 8, 245 A.2d 478 (1968); Demmery v. Nat’l Union Fire Ins. Co., 210 Pa.Super. 193, 232 A.2d 21 (1967). Significantly, the trial court based its decision in the instant case on our holdings in Bradford and Demmery. These decisions reflect the Commonwealth’s public policy against double recovery. See Rossi v. State Farm, 318 Pa.Super. 386, 465 A.2d 8 (1983) (an injured party cannot recover twice for the same injury, based on the theory that double recovery results in unjust enrichment). Under the circumstances of this case, we can ascertain no prohibition against applying the same rationale to a private insurer’s denial of underinsurance benefits pursuant to the parties’ insurance contract.

We have addressed appellant’s first issue within the contours of the Financial Responsibility Law and the former Uninsured Motorist Act because these laws, as incorporated in the case law relied upon by the trial court, formed the basis of the trial court’s opinion. However, we find that our focus in this case lies more appropriately in an interpretation of the parties’ contract of insurance. Contract interpretation will therefore guide us in determining whether State Farm was entitled to summary judgment as a matter of law. When this Court is asked to review the meaning of a contract, the intent of the parties is paramount, and our goal is to ascertain the parties’ intent as it is manifestly expressed in the agreement itself. Warren v. Greenfield, 407 Pa.Super. 600, 595 A.2d 1308 (1991) (citations omitted). When a written contract is clear and unequivocal, its meaning must be determined by its contents alone. Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982).

The parties’ insurance contract stated that coverage was excluded if the insurer’s consent was not obtained before the insured settled with a tortfeasor. State Farm Insurance policy at 9. The insurance policy also specified that the insurer would be subrogated to the insured’s right to recover damages from a tortfeasor. Id. at 13. Furthermore, the policy contained the following:

CONDITIONS
A. Action Against Company. No action shall he against the company on the part of any eligible person unless such person has fully complied with ah the terms of this coverage.

Id. at 21.

We find that the parties’ intent as manifestly expressed in the insurance contract was clear. The insured was obhgated to notify State Farm before settlement with the tortfeasor. In addition, the insured was obhgated to do “whatever was necessary to enable [State Farm] to exercise their rights” in subrogation.

It is important to highlight that the language of the consent to settle clause in this case is very similar to the statutory language concerning subrogation which this Court has upheld in previous cases. As we noted, the Uninsured Motorist Act provided that “the coverage required by this section does not apply ... to bodily injury sustained by the insured [where] the insured or his representative shall, without the written consent of the insurer, make any settlement with ... any person who may be legally liable therefore.” 40 Pa.S. § 2000(e) (repealed). Similarly, the Financial Responsibility Law reserves the Assigned Claims Plan’s “right to recover ... reimbursement for benefits or coverage paid, ... and any other sums paid to an eligible claimant.” 75 Pa.C.S.A. § 1756. We find that the language utilized by State Farm in the insurance contract in this case had as its aim the same interests that are protected by the statutory language and in caselaw cited above. This fact, coupled with our rationale in Melendez, compels our finding that the consent to settle clause in this case was breached and that summary judgment was proper. Appellant’s first allegation of error is without merit.

Appellant’s second allegation of trial court error is also meritless. Appellant claims that State Farm’s preliminary objections were a denial of liability for the accident which, accordingly, created an issue of disputed fact. Appellant’s reasoning on this point is less than clear. Regardless, we perceive appellant’s tortured argument to be that State Farm’s alleged denial of liability precluded it from relying upon the consent to settle clause in the insurance contract, and that summary judgment was inappropriate. This assertion of error is flatly contradicted by the record. State Farm’s preliminary objections are in the form of a demurrer for: (1) failure to utilize the arbitration procedure mandated by the State Farm insurance policy held by Archer, and (2) a preliminary objection based on lack of capacity to sue, because the State Farm policy held by Archer required that any claim for underinsured motorist benefits was to proceed by arbitration. The focus of the demurrer is that Archer failed to utilize the arbitration procedure required for the resolution of disputed claims under the State Farm policy. State Farm’s preliminary objections in the form of a demurrer were not a denial of its liability, nor did they affect the clear terms of the insurance policy. We hold that they did not, as appellant argues, create a disputed issue of fact which should have precluded summary judgment.

Appellant’s third allegation of error is that the trial court failed to consider the equities of this case when it granted the summary judgment motion. We have noted that subrogation is an equitable doctrine:

the action for subrogation is one based on considerations of equity and good conscience. The goal is to place the burden of the debt upon the person who should bear it. The right of subrogation may be contractually declared or founded in equity, but even if contractually declared, it is to be regarded as based upon and governed by equitable principles. It has often been said that the equitable doctrine of subrogation places the subrogee in the precise position of the one to whose rights and disabilities he is subrogated.

Allstate Insurance Co. v. Clarke, 364 Pa.Super. 196, 201, 527 A.2d 1021, 1023-24 (1987) (citations omitted). In support of the third argument, appellant cites authority in which courts have found it inequitable to allow an insurer to avoid financial responsibility where the insurer’s right of subrogation was violated. These cases, however, do not control the instant case because they involve situations where the insurer was apprised of settlement proceedings before settlement occurred, and thereafter denied coverage. See Roberts v. Fireman’s Ins. Co., 376 Pa. 99, 101 A.2d 747 (1954); Daley-Sand v. West American Ins. Co., 387 Pa.Super. 630, 564 A.2d 965 (1989). In the case at bar, State Farm was never made aware of settlement negotiations and never had an opportunity to preserve its contractual right of subrogation. There is no evidence that the trial court failed to consider the equities in this case. Appellant’s third allegation of trial court error fails.

Appellant’s fourth assertion of error is that the trial court failed to consider the entire insurance policy when it granted summary judgment. In support of this argument, appellant quotes from the State Farm policy as follows:

We do not provide Uninsured/Underinsured Motorist Coverage for bodily injury sustained by any person: ... 2. If that person or the legal representative settles the bodily injury claim without our consent

State Farm Insurance policy at 9.

If we make payment under this policy and the person to or for whom payment was made has a right to recover damages from another we shall be subrogated to that right. That person shall do: 1. Whatever is necessary to enable us to exercise our rights; and 2. Nothing after loss to prejudice them.

Id. at 13. Appellant claims that the insurance contract with State Farm was not breached because appellant did what was necessary to preserve State Farm’s rights of subrogation. We disagree. State Farm had no notice of the settlement or ongoing settlement negotiations through which it could have preserved its contractual right of subrogation. Upon examination of the policy terms, it is clear that the contract was breached. As we stated above, the typewritten addendum to the settlement was an attempt to preserve Archer’s claim against the Assigned Claims Plan. Archer’s complaint against the Plan was dismissed. State Farm’s right of subrogation was extinguished. Accordingly, we find that appellant’s fourth contention of error is meritless.

As a fifth assertion of error, neither presented to nor addressed by the trial court, appellant claims that State Farm should have named Merriweather as an additional defendant in this case, in order to protect its subrogation rights. Appellant’s argument implicitly asks this Court to grant relief, despite that State Farm’s inability to sue was a direct result of Archer’s unilateral settlement with Liberty Mutual and its insured tortfeasor. We remind appellant that a party to a contract may not complain of a breach caused by her own default. Kolbe v. Aegis Ins. Co., 370 Pa.Super. 539, 537 A.2d 7 (1988). As provided for under the State Farm policy, State Farm as the subrogee would have had the same rights as Archer. However, as we have explained in detail above, State Farm’s rights of subrogation against all parties except the Assigned Claims Plan were extinguished in the release executed by Archer in favor of Merriweather and Liberty Mutual. Therefore, we find that appellant’s fifth contention of error is completely without merit.

Appellant’s sixth and final allegation of error is that the trial court incorrectly found that there were no factual issues. We find it unnecessary to address this as a separate issue, because the propriety of summary judgment has been thoroughly demonstrated in the preceding discussion.

Finding no error in the trial court’s disposition of this case, the order granting State Farm’s motion for summary judgment is affirmed. Jurisdiction is relinquished.

CERCONE, J., concurs in the result.

      . These facts are taken from the trial court opinion contained in the record. We caution appellant that the failure to append the trial court’s opinion to her brief violates Pa.R.A.P., Rule 2111, 42 Pa.C.S.A. In addition, the Reproduced Record filed by appellant does not contain the complaint, answer, or the exhibits to the motion for summary judgment. Appellant nonetheless directs the attention of this Court to those pleadings, which include the insurance policy at issue, in support of her arguments. The failure to present this relevant material to the Court via appellant’s reproduced record is a violation of Pa.R.A.P., Rule 2152, 42 Pa.C.S.A., Content and Effect of Reproduced Record, and Pa.R.A.P., Rule 2154, 42 Pa.C.S.A., Designation of Contents of Reproduced Record.

      . On appeal to this Court, Archer pursues underinsured motorist benefits. We note that although the amount of the settlement with Travelers is $50,000.00 (see Motion for Summary Judgment of Defendant State Farm Insurance Company, Exhibit C), there is no evidence on the record of the amount of Archer’s claimed damages.

      . “Under the relevant caselaw of this Commonwealth dealing with both contractual and statutory insurance subrogation ... it is clear that where an injured party extinguishes an insurer's subrogation rights by settling and releasing an alleged tortfeasor, the injured party loses his right to recover from the insurer.” Melendez, 384 Pa.Super. at 52, 557 A.2d at 769.


author: BECK, Judge.

text:
    615 A.2d 786
    Joseph W. BOUDWIN, Appellant, v. Kimberly D. BOUDWIN.
    Superior Court of Pennsylvania.
    Argued August 25, 1992.
    Filed Nov. 6, 1992.

      Mark Momjian, Philadelphia, for appellant.
    Kathleen A. Farrell, Media, for appellee.
    Before BECK, JOHNSON and HOFFMAN, JJ.

      . The record also indicates that Father made some attempt at the Pennsylvania hearing to raise questions about Mother’s treatment of Jesse, in order to base Pennsylvania jurisdiction on Section 5344(a)(3) regarding an "emergency” of abuse or neglect. However, there was no finding that emergency jurisdiction was warranted, and Father did not include this argument in his briefs to this court.

   BECK, Judge.

The question on appeal is the application of the jurisdictional sections of the Uniform Child Custody Jurisdiction Act where the parties have shared physical and legal custody of the child.

This is an appeal from an order of the Court of Common Pleas of Delaware County deferring to the jurisdiction of the Circuit Court of Page County, Virginia in this child custody action. Because jurisdiction properly lies in Virginia, we affirm.

On January 19, 1987, Appellant Joseph W. Boudwin (“Father”) and Appellee Kimberly Dawn Boudwin Sours (“Mother”) were married in Mississippi. As military personnel, they resided at Clark Air Force Base in the Phillipines, where their only child, Jesse, was born on August 11, 1987. On September 22, 1988, Father and Mother separated and signed a Separation Agreement (“the Agreement”) dividing their assets and establishing custody of Jesse. Father and Mother agreed to share legal custody and primary physical custody. Under the Agreement, they would share physical custody on a six month rotating basis until Jesse turned five, at which time the physical custody arrangement would be reconsidered.

In October 1988, Mother returned to the United States with Jesse to begin her first six month period of primary physical custody, in accordance with the Agreement. Mother and Jesse lived in Luray, Page County, Virginia. Thereafter, the Agreement of September 22, 1988 was supplemented on two occasions to reflect changes in the custody arrangement. Because of the deteriorating political situation in the Phillipines, the parties agreed that for the year 1990, Jesse would not be returned to Father in the Phillipines for his scheduled primary physical custody period. Mother would retain primary physical custody until Father left the Phillipines, and then Father would receive primary physical custody for a term equal to that during which Mother had physical custody from May 1990, to make up for the difference.

Pursuant to a Petition for Divorce filed by Father in Delaware County, Pennsylvania on January 31, 1990, and an Affidavit of Agreement of the Mother, a Divorce Decree was granted on July 16,1990. Although Father raised the issue of custody in his Divorce Petition, no custody determination was ever made in that action. The Divorce Decree states that the Delaware County Court “retains jurisdiction over all matters properly raised heretofore.”

Father was separated from the military on May 8,1991, and he returned to his primary domicile in the United States, in Delaware County. Pursuant to the amended Agreement of the parties, Father obtained primary physical custody of Jesse on May 10, 1991, and he was to retain custody for as long as, but not longer than, one year. Mother was to enjoy partial physical custody during that time.

In early June 1991, as agreed, Jesse went to spend a week with his Mother in Virginia. On June 15, 1991, Mother informed Father that she would not be returning Jesse to Pennsylvania pursuant to their Agreement. While Jesse was with his mother, she instituted a custody action in Virginia on June 13, 1991.

After Mother’s refusal to return the child, Father filed a Petition for Custody and a Petition for Special Relief in the Court of Common Pleas of Delaware County and obtained the court’s first Order of June 19, 1991, mandating Jesse’s return to Pennsylvania pursuant to the September 22, 1988 Agreement and the addenda thereto. The court further ordered that pursuant to that Agreement, the Father was to have primary physical custody of the child for not more than one year from May 8, 1991. On June 21, 1991, the Honorable Beverly B. Bowers of the Juvenile and Domestic Relations Court of the Commonwealth of Virginia signed an Order giving full faith and credit to the Delaware County court’s Order of June 19, 1991, and returned Jesse to Father in Pennsylvania.

Mother appealed Judge Bowers’ full faith and credit Order, and this appeal resulted in the July 18, 1991 Order of the Honorable Joshua L. Robinson of the Circuit Court of Page County Virginia. That Order stated that Mother’s allegations in her Custody Petition established a prima facie case that jurisdiction over the child’s custody is in Virginia, and a hearing was scheduled for August 5,1991 on the custody issue. The Pennsylvania court was notified of the scheduled hearing.

The Pennsylvania court then held a hearing on the jurisdictional issue on July 31, 1991. After the hearing, the Pennsylvania court conferenced the matter with Judge Robinson in Virginia. The Pennsylvania court then vacated its order of June 19, 1991, and issued the Order of August 6, 1991, deferring jurisdiction to the Circuit Court of Page County, Virginia. Father’s timely appeal of the August 6, 1991 Order followed.

Father argues on appeal that the Pennsylvania trial court erroneously relinquished jurisdiction over this custody action. We note that when reviewing the trial court’s decision not to exercise jurisdiction in child custody matters, we may reverse only if there has been an abuse of discretion. Joselit v. Joselit, 375 Pa.Super. 203, 544 A.2d 59 (1988). We find no such abuse in this case.

The issue of jurisdiction in child custody matters is addressed in the Uniform Child Custody Jurisdiction Act (“UCCJA”), which has been codified in Pennsylvania at 23 Pa.C.S.A. §§ 5341 et seq. Section 5344 sets forth the various bases for jurisdiction:

(a) General rule. — A court of this Commonwealth which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) this Commonwealth:
(i) is the home state of the child at the time of commencement of the proceeding; or
(ii) had been the home state of the child within six months before the commencement of the proceeding and the child is absent from the Commonwealth because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this Commonwealth;
(2) it is in the best interest of the child that a court of this Commonwealth assume jurisdiction because:
(i) the child and his parents, or the child and at least one contestant, have a significant connection with this Commonwealth; and
(ii) there is available in this Commonwealth substantial evidence concerning the present and future care, protection, training and personal relationships of the child;
(3) the child is physically present in this Commonwealth, and:
(i) the child has been abandoned; or
(ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent;
(4) (i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (1), (2) or (3), or another state has declined to exercise jurisdiction on the ground that this Commonwealth is the more appropriate forum to determine the custody of the child; and
(ii) it is in the best interest of the child that the court assume jurisdiction; or
(5) the child welfare agencies of the counties wherein the contestants for the child live, have made an investigation of the home of the person to whom custody is awarded and have found it to be satisfactory for the welfare of the child.

23 Pa.C.S.A. § 5344.

. It is clear from the language of Section 5344 that UCCJA contemplates situations of concurrent jurisdiction in more than one state. For example, a child may have a “significant connection” to a state other than his “home state” where, as in this case, the parents live in different states, there has been a shared custody arrangement, the child visits his grandparents, attends schools, and is treated by doctors in two different states. The bases for jurisdiction outlined in the statute are alternatives, and the fact that one state is the child’s “home state” does not automatically confer jurisdiction upon that state. See, e.g., Merman v. Merman, 412 Pa.Super. 247, 603 A.2d 201 (1992); Tettis v. Boyum, 317 Pa.Super. 8, 463 A.2d 1056 (1983); Hattoum v. Hattoum, 295 Pa.Super. 169, 441 A.2d 403 (1982). We have held, however, that where concurrent jurisdiction exists, the home state is the preferable forum for disposition of the child custody issue. Warman v. Warman, 294 Pa.Super. 285, 439 A.2d 1203 (1982); Joselit, supra. As a practical matter, and absent any extenuating circumstances, the child’s home state usually is the one with which he or she has the most “significant connection.” Cf. Tettis, supra (where children had lived for over two years with father in Texas, but father was moving to California, children’s “substantial contacts” with mother’s home in Pennsylvania were more compelling for jurisdiction decision than home state inquiry).

Section 5343 of UCCJA defines “home state” as
The state in which the child immediately preceding the time involved lived with his parents, a parent or a person acting as parent, or in an institution, for at least six- consecutive months, and, in the case of a child less than six months old, the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six month or other period. 23 Pa.C.S.A. § 5343.

The trial court properly held that Virginia was Jesse’s “home state” for purposes of a jurisdiction determination. Jesse lived with his mother in Virginia for about a year from May 13, 1990, to May 10, 1991. At that time, Jesse went to live with Father in Pennsylvania. He returned to his mother for a visit on June 9, 1991. At the time mother filed her custody action on June 13, 1991, Jesse was with her in Virginia. Virginia therefore was properly considered Jesse’s home state.

Father asserts that Jesse has sufficient “significant contacts” with Pennsylvania to establish concurrent jurisdiction with Virginia. During the time that Father was in the Phillipines, and Mother had primary physical custody pursuant to the Separation Agreement, she brought Jesse to Pennsylvania to visit his paternal grandparents on a monthly basis. Also, Jesse has received medical care, attended Sunday School and vacation Bible school, and has been enrolled in a preschool in Pennsylvania. Although the trial court did not make a finding that these were “significant contacts” sufficient to establish a basis for jurisdiction under 23 Pa.C.S.A. § 5344(a)(2), such a finding would not alter the disposition of this appeal. Absent circumstances which would make Virginia an inappropriate forum, the Pennsylvania court correctly deferred to the home state’s jurisdiction.

Father argues that Virginia is not the appropriate forum for disposition of the child custody action, and he bases his arguments on two other sections of UCCJA. However, his arguments are not supported by the applicable Pennsylvania law.

Father asserts that he was the first to initiate a custody proceeding when he filed his Complaint in Divorce on January 31, 1990 in Pennsylvania. He essentially argues that the Virginia courts should have declined to exercise jurisdiction in accordance with Section 5347 of UCCJA because a prior “custody proceeding” was already pending in Pennsylvania on June 13, 1991 when Mother filed her custody petition. UCCJA defines “custody proceeding” broadly to include “proceedings in which a custody determination is one of several issues, such as an action in divorce or separation.” 23 Pa. C.S.A. § 5343. Father’s divorce petition included a count for child custody, and he argues that this “first in time” filing confers jurisdiction upon Pennsylvania rather than Virginia.

Father cites several cases which hold that jurisdiction was retained by the state in which a divorce action including a claim for custody was first filed. Levinson v. Levinson, 354 Pa.Super. 407, 512 A.2d 14 (1986); Grun v. Grun, supra; Bem v. Bem, 316 Pa.Super. 390, 463 A.2d 16 (1983), aff'd, 505 Pa. 605, 482 A.2d 1273 (1984). However, each of these cases is distinguishable from this case. In each case, jurisdiction was retained by the state where a custody proceeding that resulted, in an actual custody determination was first filed. UCCJA defines a “custody determination” as “a court decision and court orders and instructions providing for the custody of a child, including visitation rights.” 23 Pa.C.S.A. § 5343. See e.g., Carpenter v. Carpenter, 326 Pa.Super. 570, 474 A.2d 1124 (1984) (custody order was issued by Massachusetts court and Pennsylvania court properly relinquished jurisdiction of later custody action); Zaubi v. Zaubi, 275 Pa.Super. 294, 418 A.2d 729 (1980), aff'd, 492 Pa. 183, 423 A.2d 333 (1980) (Danish custody decree entered prior to filing of Pennsylvania custody action must be credited).

Count II of Father’s Pennsylvania divorce complaint first raised the issue of Jesse’s custody, but no custody determination was ever made by the Pennsylvania court. Although the divorce decree states generally that the Delaware County “Court retains jurisdiction over all matters properly raised heretofore,” the parties were at all times prior to June 1991 “functioning under a custody agreement which they reached between themselves ... [N]o custody determination was made by the Delaware County Common Pleas Court.” Moreover, UCCJA’s priority rule should not be interpreted to “encompass any and all actions filed in this Commonwealth regardless of their antiquity or dormancy.” Zellat v. Zellat, 351 Pa.Super. 623, 506 A.2d 946, 949 (1986). Mother’s Virginia custody action was the first “proceeding” requiring an application of UCCJA, and therefore, it was the first custody proceeding for purposes of establishing jurisdiction under the Act. Id. By contrast, the Pennsylvania divorce decree that was entered in July 1990 made no reference to child custody, and the divorce action is no longer pending. See Levinson v. Levinson, 354 Pa.Super. 407, 512 A.2d 14 (1986) (court’s jurisdiction over a proceeding continues until an appeal of its order has been filed or time for appeal has elapsed).

There was no live custody “proceeding” in Pennsylvania before Mother filed her action in Virginia on June 13, 1991. Therefore, Father’s argument on this point fails.

Next, Father argues that Virginia is an inappropriate forum for the custody determination under Section 5349 of UCCJA, because of Mother’s “wrongful conduct” in refusing to return Jesse to Pennsylvania after his visit to her in Virginia in June 1991. Section 5349 provides in part:

If the petitioner for an initial decree has wrongfully taken the child from another state or has engaged in conduct intending to benefit his position in a custody hearing, the court may decline to exercise jurisdiction if this is just and proper under the circumstances....

23 Pa.C.S.A. § 5349(a). Father’s reliance on this section of UCCJA is misplaced. Its language describes a situation where a trial court should decline jurisdiction rather than assume it, and the argument should have been addressed to the Virginia court, not the Pennsylvania court.

Of course, one of the express purposes of UCCJA is to “deter abductions and other unilateral removals of children undertaken to obtain custody awards.” 23 Pa.C.S.A. § 5342(a)(5). See, e.g., M.D. v. B.D., 336 Pa.Super. 298, 485 A.2d 813 (1984) (Washington custody order will not be recognized by home state Pennsylvania since Mother abducted child and took him to Washington). Although it appears that Mother breached a private custody agreement when she refused to return Jesse to his Father in Pennsylvania, this “abduction” did not necessarily benefit her position in this matter. Virginia already was Jesse’s home state at that time, and her wrongful conduct did not alter this fact. Our holding on this issue should not be misconstrued as approval or even tolerance of Mother’s behavior in this instance. However, her “abduction” of Jesse while he was in his Virginia home probably did not constitute an “abrupt disruption of life so abhorrent to the intent of the Act.” Hattoum, supra, 295 Pa.Super. at 176, 441 A.2d 406 at n. 2.

Therefore, we affirm the trial court’s order deferring jurisdiction of this child custody matter to the Commonwealth of Virginia.

Order affirmed.

JOHNSON, J., concurs in the result.

      . The Delaware County court’s Order of July 16, 1990 states that “it is ORDERED and DECREED that Joseph Willard Boudwin, Plaintiff, and Kimberly Dawn Rothgeb Boudwin, Defendant, are divorced from the bonds of matrimony. This court retains jurisdiction over all matters properly raised heretofore.
      By the Court:
      Robert A. Wright, J. /s/.”

      . It is unclear from the record when Father first learned about the Virginia custody action. In his custody petition filed in Delaware County, on June 19, 1992, Father averred that he did "not have information of any custody proceeding concerning the said child in any court of Pennsylvania or any other state."

      . Had the Delaware County court known of the Virginia action at this time, its Order of June 19, 1991 would have been contrary to the express terms of Section 5347 of the Uniform Child Custody Jurisdiction Act which provides in pertinent part:
      (a) General rule. — A court of this Commonwealth shall not exercise its jurisdiction under this subchapter if, at the time of filing the petition, a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this subchapter, unless the proceeding is stayed by the court of the other state because this Commonwealth is a more appropriate forum or for other reasons____
      Section 5347 describes procedures to be followed by the courts in both states to ensure that proper communication and coordination are preserved. 23 Pa.C.S.A. § 5347. See also, Grun v. Grun, 344 Pa.Super. 432, 496 A.2d 1183 (1985), aff'd, 511 Pa. 374, 514 A.2d 1372 (1986) (Pennsylvania court should have vacated its custody order upon notice that custody action had been earlier filed in Texas).
      Because we hold that the trial court properly deferred jurisdiction to Virginia later in these proceedings, any error on this point is harmless.

      . Father argues that the Pennsylvania court failed to consider that Virginia is an "inconvenient forum” under Section 5348 of UCCJA. That section sets forth factors to be considered by a court which has jurisdiction under Section 5344, but which may otherwise decide to decline such jurisdiction:
      In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose, it may take into account the following factors, among others:
      (1) If another state is or recently was the home state of the child.
      (2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants.
      (3) If substantial evidence concerning the present or future care, protection, training and personal relationships of the child is more readily available in another state.
      (4) If the parties have agreed on another forum which is no less appropriate.
      (5) If the exercise of jurisdiction by a court of this Commonwealth would contravene any of the purposes stated in section 5342 (relating to purposes and construction of the subchapter)____
      Although Father argues that Mother’s wrongful conduct in refusing to return Jesse after visitation in June 1991 should have been considered as contravening UCCJA’s express purpose of deterring "abductions and other unilateral removals of children undertaken to obtain custody awards,” 23 Pa.C.S.A. § 5342(a)(5), it is clear that this "inconvenient forum” argument should have been addressed to the Virginia court which could "decline to exercise its jurisdiction” under Section 5348. Moreover, as is discussed below, Mother’s conduct in this regard did not "benefit” her position in the litigation of the jurisdiction issue.

      . Per curiam Order of the Superior Court of Pennsylvania, dated August 16, 1991, dissolving the temporary stay of the Virginia court Order directing Father to return Jesse to Mother pending the disposition of the custody action.


author: JOHNSON, Judge.

text:
    615 A.2d 792
    In re Edward H. BENSON, Settlor to Meridian Trust Company Substitute for American Bank and Trust Co. of Pa. Appeal of Kurt Ross KENDALL, Travis Edward Kendall, and Carol Lynn Benson Kendall, Appellants.
    Superior Court of Pennsylvania. .
    Argued June 24, 1992.
    Filed Nov. 6, 1992.

      Carol L.B. Kendall, pro se.
    Carl T. Work, Reading, for Meridan Trust Co., participating party.
    Before JOHNSON, FORD ELLIOTT and HOFFMAN, JJ.
   JOHNSON, Judge.

Carol Lynn Benson Kendall (Kendall) appeals from the November 27, 1990, order confirming the account in the above-captioned action issued in the Orphans’ Court of Lancaster County. We affirm.

The underlying facts of this case may be summarized as follows: In November 1980, Edward H. Benson died survived by his wife, Margaret H. Benson, and three children: Steven W. Benson, Scott R. Benson and Kendall. Edward Benson, prior to his death on November 4, 1980, had executed a revocable life insurance trust agreement providing: (1) for his control of the income and principal as long as he lived; (2) at his death, income was to go to his surviving spouse, Margaret; (3) at her death, the principal was to be divided into separate trusts for his then living children, with income and a periodic payment of 2% of the principal going to each child for life; and, (4) at each child’s death, the then remaining principal was to go to an appointee of the child or to his or her issue, if any, or otherwise, to the issue of the settlor.

On July 9, 1985, Margaret H. Benson, the settlor’s spouse, and Scott R. Benson, the adopted son of the settlor, died. On July 25, 1989, the trustees received a “disclaimer” signed by Kendall in which Carol Lynn Benson Kendall purported to disclaim her interest in the income, the 2% periodic payments and the principal of the Scott R. Benson Trust. Notwithstanding that she had been advised by both the trustees and the court that she could not disclaim the principal, Kendall, appearing pro se, filed exceptions to the First and Final Account and the Adjudication of the Scott R. Benson Trust, arguing that she had validly disclaimed her one-half interest in the Scott R. Benson trust in favor of her sons. She also demanded an accounting and the replacement of the trustees. The trial court entered the November 27, 1990, order which, inter alia, confirmed the account and directed the trustees to honor Kendall’s “disclaimer,” allowing Kendall’s interest in the income and the 2% principal of the Scott R. Benson Trust to be paid to her sons. This appeal followed.

Our standard of review from a final order of the Orphans’ Court Division requires that we accord the findings of an Orphans’ Court, sitting without a jury, the same weight and effect as the verdict of a jury; we will not disturb those findings absent manifest error; as an appellate court we can modify an Orphans’ Court decree only if the findings upon which the decree rests are not supported by competent or adequate evidence or if there has been an error of law, an abuse of discretion, or a capricious disbelief of competent evidence. Estate of Keefauver, 359 Pa.Super. 336, 518 A.2d 1263 (1986); Estate of Kovalchick, 345 Pa.Super. 229, 498 A.2d 374 (1985); Estate of Gilbert, 342 Pa.Super. 82, 492 A.2d 401 (1985).

The trustees assert that Kendall’s claim arises from two fundamental misconceptions: (1) that Scott’s share was and remains a separate independent trust, and (2) that she is entitled to one-half the principal of Scott’s share outright. Kendall charges that the stated provisions of the trust instrument have been breached. Brief at 12. She contends that she is entitled to a one-half share of the principal of the Scott R. Benson Trust, including accrued income, and any 2% principal payments which may have been held in escrow. We disagree.

The disputed paragraphs of the trust instrument provide:

C. After my wife’s death (or mine if I survive her) and as soon as there is no living child of mine under twenty-five years of age, the then remaining principal shall be divided into equal shares, so that there will be one share for each child of mine who is then living or then dead, and each such share shall be kept invested as a separate trust and thereafter:
1. During each child’s lifetime:
2. At each child’s death (or at the time for the setting apart of shares in the case of a child who dies before that time), any then-remaining principal of his or her trust shall be paid:
a. ... in default of appointment or insofar as it is not effectual,
b. To his or her then-Kving descendants, per stirpes; or, in default of such descendants,
c. To my then living descendants, per stirpes; (any portion thus accruing to a child for whom principal is then held in trust hereunder to be added to and treated as a part of such principal); or, in default of such descendants,

Turning now to the facts of this case: The settlor’s youngest son Scott was killed at the same time as his mother. Scott’s share was put in escrow by the trustees, while they awaited the outcome of a paternity action to determine whether Scott had any surviving heirs. Since the Florida paternity claimant was found not to be Scott’s surviving heir, Scott was ruled to have died without issue at the same time as his mother. Once it was determined that Scott had died without issue, the trustees returned the escrow amount in the event Scott had surviving heirs and the accumulated interest to the settlor’s trust for distribution to the trusts established for the settlor’s two surviving children.

The distributive scheme of Edward H. Benson established a lifetime trust to provide for the welfare of his wife and himself; he also established a residuary trust from which his wife, if she survived him, was to receive the net income and so much of the principal as thought desirable by the trustee, taldng other available income into account. Upon his wife’s death, with no surviving child under the age of twenty-five, the remaining principal was to be equally divided into shares, with each share then invested as a separate trust. From these equal trusts, once established, the children of the settlor during their lifetime were to receive the net income and an amount equal to 2% of the principal, to be determined at the formation of the individual trusts, quarterly. Upon the death of a surviving child of the settlor, the remaining principal was to be paid to his appointees, his then living descendants per stirpes, to the settlor’s then living descendants per stirpes, or to the settlor’s intestate heirs as provided under the laws of this Commonwealth.

The trustees, however, maintain that according to the settlor’s wishes, as expressed in the provisions of the trust instrument, no child of the settlor had any right to the remaining principal, except upon application to the trustees. Since the trustees had the sole discretion to grant or not to grant such application, the successor trusts, the separate trusts, were also spendthrift trusts. Consequently, the beneficiaries, of which Kendall was one, could not assign or appoint nominees to receive that principal. Borsch Estate, 362 Pa. 581, 67 A.2d 119 (1949).

While it is clear that where a spendthrift trust is in issue, the courts will uphold the spendthrift provisions as a means to enforce the settlor’s right to dispose of his property as he chooses, it is also clear that in the absence of statutory language overriding a trust provision, the trust provision will be enforced. Id. The polestar in every trust is the settlor’s intent and that intent must prevail. In re Pew’s Estate, 411 Pa. 96, 191 A.2d 399 (1963). It is also well-established that “the writing itself must be considered to be the best and controlling evidence of the settlor’s intent.” In re Girard Trust Corn Exchange Bank, 418 Pa. 112, 116, 208 A.2d 857, 859 (1965). Moreover, courts cannot rewrite a settlor’s deed of trust or distort his language or the language of a statute in order to attain what is believed to be beneficial or wise or even what it is believed that the settlor would or should have provided if he possessed a knowledge of all presently existing circumstances. In re Kelsey’s Estate, 393 Pa. 513, 143 A.2d 42 (1958).

Mindful of this standard, we turn to the facts of the present case. Contrary to the argument of the trustees, the settlor provided a scheme of distribution that treated all of his children equally when all of his children were alive and equally when all of his children were dead. The scheme provided that at the death of each child, “the remaining principal of his or her trust shall be paid, in descending order, to: (1) as he or she may appoint by will, (2) to his or her descendents, per stirpes, (3) the settlor’s then living descendants, per stirpes, or (4) the settlor’s intestate heirs.” Trust Instrument, dated 9/30/80 at 5.

The trustees have advanced no reasonable basis for attributing to the settlor’s scheme, the division of the trust corpus made by them on November 27, 1985, following the death of Mrs. Benson. The trustees established a trust for Kendall, a trust for Steven and a share for Scott.

The trust instrument directs that a trust be established “for each child then living or then dead.” The trustees’ claim that, had the paternity action against Scott succeeded, the paternity claimant would have been the beneficiary of this share is specious. It is patent that the paternity claimant would have succeeded to Scott’s trust. The Trustees assertion that Kendall “never had an interest in the principal of Scott’s share because now that the factual situation has been determined by the Court, the whole trust should have been divided into two parts” is incorrect. Brief at 4. The trust instrument provides that the trustees create as many trusts as there are children, either living or dead. Kendall has properly argued that technically the trustees have breached the terms of the trust instrument by creating a “share” for Scott that was not a trust.

The terms of the trust instrument provide “[a]t each child’s death (or at the time for the setting apart of shares in the case of a child who dies before that time), any then remaining principal shall be paid,” (in default of the power of appointment and with no descendants surviving Scott), to the then living descendants of the settlor, per stirpes, with the proviso that “(any portion thus accruing to a child for whom principal is then held in trust hereunder to be added to and treated as a part of such principal).” This proviso, though inartfully drafted, clearly modifies “[t]o my then living descendants, per stirpes.” The trust instrument requires the trust portion of a deceased child to be paid into the trust of a living descendant of the settlor, if such descendant is the beneficiary of a trust under the trust instrument. Kendall is the beneficiary of such a trust, hence the principal due to her from Scott’s trust is added to her trust. Words contained in a deed of trust are to be interpreted according to their usual and generally accepted meaning in the absence of a clear intention to the contrary. Schellentrager v. Tradesmans National Bank & Trust Co., 370 Pa. 501, 88 A.2d 773 (1952). In addition, we may not discard carefully worded language in a trust instrument as meaningless surplusage in construing the trust. In re Ferguson, 354 Pa. 367, 47 A.2d 245, 165 A.L.R. 772 (1946).

In view of this interpretive standard, we are constrained to conclude that the trial court did not err in sustaining the Trustees’ Preliminary Objections and dismissing Kendall’s Exceptions to the Adjudication since the trustees properly added the one-half principal of Scott’s trust to Kendall’s trust as the language of the trust instrument provided. It is, of course, well-settled that we may affirm the order of the trial court on appeal where it is correct on any legal ground or theory, regardless of the reason relied upon by the trial court. Johnson v. Johnson, 410 Pa.Super. 631, 600 A.2d 965 (1991).

Next we address the effect of the “disclaimer.” The trustees contend that the disclaimer filed by Kendall was effective only with respect to the income and the periodic payments from Scott’s share but ineffective with regard to Scott’s principal. Since the trial court recognized the disclaimer to be effective with respect to income and the 2% periodic payments from principal, we address only the effectiveness of the disclaimer with regard to Kendall’s claimed entitlement to one-half of Scott’s trust share. It is clear that the operative paragraph of the trust instrument provides, that, in the event of Scott’s death, given a failure to exercise the power of appointment by Scott, and in default of surviving direct descendants of Scott, the share devolves to the “then-living descendants, per stirpes” of Scott’s father, the settlor. Trust Instrument ¶ C(2)(c). This paragraph also contains the proviso that:

([ A]ny portion thus accruing to a child for whom principal is then held in trust hereunder to be added to and thereafter treated as a part of such principal);

Kendall has conceded that she has principal held in trust pursuant to this trust instrument. Hence the portion of Scott’s trust that accrues to her must be treated as part of her own principal, to be held in trust rather than to be paid to her outright. As a result, payment of this principal to Kendall’s sons as she proposes would be improper or impermissible.

In view of our analysis of the trust instrument, we find it unnecessary to address Kendall’s remaining issues dealing with trustee negligence.

Order Affirmed.