author: FORD ELLIOTT, Judge: JOHNSON, Judge,

text:
    620 A.2d 1161
    Lori J. MILLER (Since Remarried—Now Lori J. Detweiler), Appellant, v. Raymond E. MILLER.
    Superior Court of Pennsylvania.
    Argued June 24, 1992.
    Filed Feb. 19, 1993.

      William A. Gross, Doylestown, for appellant.
    Jeffrey M. Williams, New Hope, for appellee.
    Before JOHNSON, FORD ELLIOTT and HOFFMAN, JJ.
   FORD ELLIOTT, Judge:

This appeal is from the trial court’s entry of a marriage settlement agreement as an order of court and the striking of a provision in the agreement which called for binding arbitration in custody disputes.

The parties were married on October 4,1980. Two children were born of the marriage: Janell Miller, born June 30, 1983, and Justin Miller, born February 3, 1989. In May 1989 the parties separated but agreed Father should retain custody of the children. This agreement was reduced to writing on July 6, 1989. On April 4, 1990, the parties were divorced. At the time of the divorce, the parties entered into a Marriage Settlement Agreement which addressed property rights, support, custody, and other intra-family matters. This Marriage Settlement Agreement incorporated a Mediation/Arbitration Agreement signed by the parties. The Mediation/Arbitration Agreement provided that if a dispute, claim, or controversy is not resolved following mediation, resulting in a written agreement between the parties that they agree shall be final and binding upon them and which may be entered as a judgment by any court having competent jurisdiction, then a Board of Arbitrators shall arbitrate and decide all issues and render a written decision. This decision may be entered as a judgment by any court having competent jurisdiction. Father subsequently filed for child support. Mother responded by exercising the options provided by the Mediation/Arbitration agreement and submitted the custody matter to mediation. A mediation session was held in August of 1991 which failed to resolve the issue. The matter was then submitted to arbitration. A panel of three arbitrators decided the custody issue in favor of Mother. Father refused to relinquish custody.

Mother then sought to have the arbitrators’ decision enforced as a court order and filed a Petition to Enter the Marital Settlement Agreement as an order of court. On November 18, 1991, a hearing was held before the Honorable Susan Devlin Scott who entered the parties agreement which incorporated by reference the mediation/arbitration agreement as an order but struck the provisions of the two agreements calling for binding arbitration on the issue of custody and refused to enter the arbitrators’ award of custody. Mother appeals from that order.

On appeal, Mother argues the trial court erred in determining, as a matter of law, that the inclusion of a negotiated child custody non-judicial arbitration proceeding as a part of a marital settlement agreement is void as against public policy.

Citing the general principle of law favoring private nonjudicial mediation and arbitration of disputes, Mother argues that the Uniform Arbitration Act, Act of October 5, 1980, 42 Pa.C.S.A. § 7303 provides for the enforceability of a written agreement to submit a controversy to arbitration. Furthermore, a party who has submitted to a common law arbitration award, pursuant to the Uniform Arbitration Act, is bound thereby unless he can show that he was denied a hearing or that fraud, misconduct, corruption, or other irregularity caused an unjust, inequitable, or unconscionable award to be rendered. 42 Pa.C.S.A. § 7341. Thus, Mother contends since Father cannot claim he was denied a hearing or that fraud, misconduct, or corruption caused an unfair award, the arbitrators’ award of custody must stand.

While we agree generally with Mother’s statement of the law that parties are bound by an arbitration decision unless an arbitrators’ award was gotten by fraud or a party was denied a hearing, our review of relevant case law does not support a determination that courts will be bound by such decisions in custody cases nor that a court’s review will be limited necessarily by the arbitration provisions.

Mother and Father both refer to this court’s decision in Walker v. Walker, 308 Pa.Super. 280, 454 A.2d 130 (1982), for different propositions. In Walker, Husband and Wife executed a separation agreement which provided that both parties were to have joint custody of their two minor children, each parent having equal time with each child, and that Husband was to pay Wife $240 per month for the care, support, and maintenance of their children. The separation agreement also included a provision for the arbitration of any dispute relating to the custody and support provision. Problems developed when the children began to spend more than one-half of their time with their father. Husband paid Wife one-half of the $240 amount, for the month of December 1978, based on the average number of days the children had spent with her. Wife objected and the dispute, as per the separation agreement, was submitted to an arbitrator.

The following month, January 1979, the arbitrator rendered his decision in which he determined Husband should affirmatively encourage the children to spend an equal amount of time with both parents, and Husband should continue to make support payments in the amount of $240. Mother then filed a Petition to Confirm and Enforce the Arbitration Award, and a hearing was held in the Court of Common Pleas of Montgomery County on May 31, 1979. Prior to the hearing Husband filed Preliminary Objections challenging the jurisdiction of the court.

On July 3,1979, the trial court dismissed Husband’s preliminary objections and confirmed the arbitrator’s award and ordered the parties to formulate a schedule for custody per their separation agreement. Husband filed exceptions to the July 3rd order. What followed in Walker was a second trial court order being entered giving custody of the children to Husband which was in direct conflict with the July 3rd order awarding shared custody. On appeal, we were compelled to remand the matter.

Instantly, Mother argues based on Walker that the trial court erred in flatly rejecting the arbitrator’s decision. On the other hand, Father urges us to adhere to the language of the Walker court when it stated:

The court was, of course, not bound by the parties’ agreement with respect to custody. Contracts as to the custody of minor children are always subject to being set aside in the best interests of the child. Commonwealth ex rel. Children’s Society v. Gard, 362 Pa. 85, 66 A.2d 300 (1949); Commonwealth ex rel. Veihdeffer v. Veihdeffer, 235 Pa.Superior Ct. 447, 344 A.2d 613 (1975).

We remanded in Walker for the filing of a comprehensive trial court opinion. While we consider Walker to be instructive, we find that it did not resolve the issue of the enforceability of binding arbitration in a custody matter. What is instructive about Walker is that the court did not strike down the arbitration provision as being void as against public policy. Moreover, there did not appear to be any real issue presented in the Walker case that the arbitrator’s award was not in the best interest of the child on the custody matter.

Instantly, we agree with Mother that arbitration generally is a favored remedy as it permits parties to agree to resolve disputes outside the court system. See Children’s Hospital of Philadelphia v. American Arbitration Association, 231 Pa.Super. 230, 331 A.2d 848 (1974); Mendelson v. Shrager, 432 Pa. 383, 248 A.2d 234 (1968). Courts benefit from reduced congestion and parties benefit by having their disputes resolved in a private forum by self-chosen judges. We acknowledge arbitration has been used more frequently in other jurisdictions as a viable means of resolving domestic disputes that arise under separation agreements. See Comment, “The Enforceability of Arbitration Clauses in North Carolina Separation Agreements,” 15 Wake Forest L.Rev. 487 (1979). We agree that parties should be able to settle their domestic disputes out of court, and if the parties choose to arbitrate their domestic differences they should be permitted to do so. We concur in Mother’s contention that parties who have agreed to arbitrate should be bound by that decision and that arbitration provisions regarding custody are not, as determined by the trial court, void as against public policy. However, and most importantly, we do not agree that in the matter of child custody an arbitration award shall be binding on a court if such award is challenged by one of the parties as not being in the best interests of the child. As such, we decline to hold that the trial court is bound by the narrow scope of review set out in the Uniform Arbitration Act. An arbitration award on the issue of custody is subject to review by a court of competent jurisdiction based upon its responsibility to look to the best interests of the child.

In Witmayer v. Witmayer, 320 Pa.Super. 372, 467 A.2d 371 (1983), this court opined on the effect and importance of private custody agreements:

If informal custody agreements have no force and effect, then parents can engage in self-help, breach an agreement at will, and suffer no detriment. This would discourage orderly private settlements of disputes and potentially expose a child to greater instability, disruption and discord.
The law looks with favor upon resolutions of custody disputes that are settled privately. Warman v. Warman, 294 Pa.Super. 285, 439 A.2d 1203 (1982). It is desirable for divorcing parents to settle their differences without the intervention of the court system wherever possible. There are good reasons why these private agreements serve the best interests of the child:
First, most parents genuinely love their children, and it is reasonable to assume that the children’s welfare is a vital consideration in the parents’ decision to resolve their dispute by agreement. One major reason that parents agree on custody is to spare their children the trauma inherent in an adversarial hearing. Second, parents have a better informational base upon which to make a decision about custody. The adversarial process is an inadequate means to assemble sufficient ‘facts’ to resolve custodial disputes satisfactorily. Third, it is difficult to protect a child from the painful pull of divided loyalties when his parents fail to agree. Parental agreements help to preserve an atmosphere of at least superficial peace between parents and thereby facilitate a much easier and more meaningful future relationship between the child and the non-custodial parent. An unusually sensitive statement of these factors was offered by an Illinois court:
[T]he virtues of parental agreement are strong, and the law appreciates them____ The parents obviously know more about the family than a judge is likely to learn in a short, formal hearing. In a more or less amicable dissolution, the parents’ natural desire to do what is best for their children gives any agreement about custody great weight as an indicator of what is in the best interest of the children. Moreover, amicable settlement of custody arrangements is a good thing in itself, for peace between the parents must benefit the children; and a court will hesitate to tamper with what may be a fragile agreement, worked out only with difficulty.
Sharp, Modification of Agreement—Based Custody Decrees: Unitary or Dual Standard?, 68 Va.L.Rev. 1263, 1280 (1982) (footnotes omitted).
Divorced or separated parents usually differ on questions relating to their children. For those parents to work out a mechanism themselves whereby they resolve those conflicts privately is to be encouraged. Such a mechanism, once forged, may set a pattern for resolution of later disputes as they arise. Such resolutions frequently result in informal agreements. This is not to deny that many divorced or separated parents will not be able to settle their differences without the intervention of the court system. The law should not impede, however, those parents who are able to forge a mechanism for private dispute resolution.

Id. at 379-380, 467 A.2d at 374-375. Other jurisdictions have also looked favorably upon private mediation and arbitration agreements to initially resolve custody disputes. Flaherty v. Flaherty, 97 N.J. 99, 477 A.2d 1257 (N.J.1984); Sheets v. Sheets, 22 A.D.2d 176, 254 N.Y.S.2d 320 (1964). Cf. Nestel v. Nestel, 38 A.D.2d 942, 331 N.Y.S.2d 241 (1972).

While we encourage parties to resolve their disputes amicably and without court intervention, if possible, we cannot ignore our duty to protect the rights and interests of children once called upon to do so. Therefore, while arbitration proceedings in custody disputes are not void as against public policy, the question of the enforceability of arbitration awards in this context is a very different matter. Thus while agreements entered into between parties are binding as between the parties, they may not bind the court once its jurisdiction is invoked. It follows necessarily that an award rendered by an arbitration panel would be subject to the supervisory power of the court in its parens patriae capacity in a proceeding to determine the best interests of the child. It has long been recognized by the courts that it is the Commonwealth who is charged with the duty of protecting the rights and interests of children. In Re: William L., 477 Pa. 322, 383 A.2d 1228 (1978).

Our case law is clear with respect to the authority of courts in consideration of child custody issues. In Mumma v. Mumma, 380 Pa.Super. 18, 550 A.2d 1341 (1988), appeal denied, 524 Pa. 629, 574 A.2d 70 (1989), the trial court declined to follow a shared custody arrangement which had been agreed to by the parties. This court held: “The trial court was not bound by the parties’ agreement with respect to Bo’s [their son] custody. A contract pertaining to the custody of a minor child is always subject to being set aside in the best interest of the child.” Id. 380 A.2d at 22, 550 A.2d at 1343. “No parental agreement, of course, can permanently determine the custody of children.... The best interests of the child determine custody, and a court with proper jurisdiction has power to redetermine the best interest where circumstances change, (citations omitted)” Hattoum v. Hattoum, 295 Pa.Super. 169, 178, 441 A.2d 403, 407 (1982).

In Warman v. Warman, 294 Pa.Super. 285, 304, 439 A.2d 1203, 1213 (1982), this court stated: “A child cannot be a piece of property to be disposed of in a Separation Agreement, In re Rosenthal v. Rosenthal, 103 Pa.Super. 27, 157 A. 342 (1931), although the courts do encourage sensible private solutions to custodial problems where possible.”

We find agreements by parents concerning their children, while encouraged, will always be subject to close scrutiny by a court and are subject to being set aside as courts will not be bound by such agreements. Our supreme court recently addressed the issue of agreements between parents in the context of child support payments. The court stated:

Parties to a divorce action may bargain between themselves and structure their agreement as best serves their interests, Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981). They have no power, however, to bargain away the rights of their children, Sonder v. Sonder, [378 Pa.Super. 474, 549 A.2d 155] supra [1988] Their right to bargain for themselves is their own business. They cannot in that process set a standard that will leave their children short. Their bargain may be eminently fair, give all that the children might require and be enforceable because it is fair. When it gives less than required or less than can be given to provide for the best interest of the children, it falls under the jurisdiction of the court’s wide and necessary powers to provide for that best interest. Id. It is at best advisory to the court and swings on the tides of the necessity that the children be provided. To which the inter se rights of the parties must yield as the occasion requires.

Knorr v. Knorr, 527 Pa. 83, 86, 588 A.2d 503, 505 (1991).

We acknowledge the supreme court had before it a provision of a separation agreement concerning child support payments. However, we consider its determinations of the court’s role in enforcing such agreements equally applicable to custody matters. Hence, we find the trial court was not bound to confirm the arbitration award that was being challenged by Father. The limited review set out in 42 Pa.C.S.A. § 7341 will not bind the court in custody matters. Rather, the trial court must view the decision of the arbitrators in light of the best interests of the child. However, if the court following its review finds that the arbitrators’ award is in the bests interests of the child, the court may adopt the decision as its own.

Accordingly, though we find that the trial court erred in striking the arbitration provisions as being void as against public policy, we agree with the trial court generally on the enforceability of such provisions. We further agree that the trial court was not required to confirm the arbitration award under the constraints of the Uniform Arbitration Act. Thus, the order striking the binding arbitration provision from the Marital Settlement Agreement is vacated. Case remanded for a determination as to whether the decision of the arbitrators is unenforceable as being adverse to the best interests of the children in this action.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting.

The intentions of the trial court, announced from the bench during the hearing on November 18,1991, were never reduced to a formal order of court. The certified record confirms that a hearing on custody was scheduled for December 9, 1991, before the same judge who held the hearing on the Petition to Enter Agreement as Order of Court. The refusal of the trial judge to adopt a provision requiring binding arbitration on the issue of custody does not constitute an abuse of discretion. For all three of these reasons, I must respectfully dissent.

Lori J. Miller, “Mother”, has brought this appeal relying solely on statements made by the distinguished trial judge, the Honorable Susan Devlin Scott, during a hearing on a petition to enter a marital settlement agreement, and related documents, as an order of court. Mother asks us to accept the following declarations by Judge Scott as the “order” we are to review on this appeal:

II. ORDER IN QUESTION
“... the marital settlement agreement, which is P-1 for this record, I will enter as the order of court now.
Section 4 of the marital separation agreement refers to a mediation/arbitration contract, which is P-2 in this record. The provision of P-2 which calls for binding arbitration on the issue of eustody/visitation I find is void against public policy, and anything contrary in P-1 is also to be striken [sic] on the issue of custody.”
TRANSCRIPT OF 11/18/91 HEARING, INCLUDING THE ABOVE-MENTIONED ORDER IS INCLUDED IN THE REPRODUCED RECORD (R 51a).

Brief of Appellant, filed March 16, 1992, p. 2. The intentions of Judge Scott were never reduced to a formal order for her review and approval. A formal order has not been entered on the docket. The docket entries certified to this court contain the following entry:

111891 ORDER ENTERED. DENIED HEARING HELD AND ORDER ENTERED. SEE FILE.

SCOTT/J VOICE/CR

A Civil Court Sheet contained within the certified record includes the following, unsigned handwritten entries:

PI [P-1?] marital separation agreement entered as order of court excluding anything on custody. P2—Binding arbitration on custody—-void against public policy. No counsel fees to be awarded today. P3—Custody agreement will not be enforced by court. P4—Not to be enforced by court. Preliminary objections on custody rescheduled to 12/9/91 10 AM. Only matter before court on custody.

An examination of the entire fifteen page transcript of November 18, 1991, leads this writer to conclude that many things remained to be formalized following the conclusion of the hearing, including a hearing on a separate custody proceeding involving the same parties scheduled for less than a month later. Transcript of Proceedings (N.T.), November 18, 1991, p. 14, R.R. 56a. If we restrict our review to the language of the trial court selected by Mother as the “order” supporting her appeal, we are still faced with indefiniteness.

Although Judge Scott states that she “will enter” the marital settlement agreement “as the order of court now” N.T. p. 9, R.R. 51a, the surrounding colloquy makes clear that portions of both the marital settlement agreement and the mediation/arbitration contract are not to be considered part of the order of court. Not only does Judge Scott find the binding arbitration provisions of the mediation/arbitration contract void as against public policy—and therefore not includible in her order—N.T. p. 9, R.R. 51a; the court goes on to declare that “anything contrary [to public policy] in the marital settlement agreement is also to be stricken on the issue of custody.” Id.

The Petition to Enter Agreement as Order of Court filed September, 16, 1991 prays that the court “enter the parties Agreements as an Order of Court, thereby providing the Court with full jurisdiction to enforce the Agreements as an Order ...” Petition, p. 4 (emphasis added). The hearing transcript establishes that Judge Scott rejected the prayer with respect to both P-3, the Custody Agreement, and P-4, the Minutes—Detweiler/Miller. Judge Scott expressly stated:

THE COURT: ... .And to complete the record, P-3, which is the custody agreement, I will not enforce for the reasons I’ve stated____
THE COURT: P-4 I certainly will not enforce, which is what you asked me to enforce under common law arbitration. And to be consistent, P-3 I am not going to enforce ....

N.T., supra at p. 12, R.R. 54a.

I have found nothing in the record certified to this Court which establishes those portions of P-1 and P-2 which Judge Scott did, in fact, incorporate as an order of court. I find nothing clearly confirming that Judge Scott rejected both P-3 and P-4 as part of any order. Mother does not direct us to any place in the record where the trial court did, finally, enter any documents, or parts of documents, as an order of the court. There is an unsigned, proposed Order of Court attached to the front of the Petition which would have been intended, if and when signed, to accomplish the prayer of Mother in her Petition.

Absent a signed, executed order of court which reduces to a single writing the actions of the hearing court, I would be inclined to reject the appeal as having been taken prior to the entry of an appealable order.

Moreover, Judge Scott, at the same time she declined to adopt binding arbitration on November 18, 1991, set a hearing on the preliminary objections filed to the petition for custody in a related action. That hearing was scheduled for December 9, 1991 at 10:00 a.m. Neither Mother nor Father on this appeal have informed this court of the status of that custody proceeding. Nevertheless, because of the outstanding custody matter, I would be reluctant to give much weight to Mother’s averment in her Petition that:

15. Without the Agreements being entered as an Order of the Court, your Petitioner is without ability to seek relief and restitution for any violation of the Agreements.

Certainly, with regard to the custody of Justin Miller and Janell Miller, the courts of this Commonwealth are always open to consider that question in the context of the best interests of the children, without regard to the existence of any written agreement between the parents.

Finally, I am unable to join with my esteemed colleagues because I discern no error committed by Judge Scott. If it is assumed that Judge Scott’s statements from the bench constitute a reviewable order, all she did was to refuse to incorporate a provision for binding arbitration on the issue of custody into the order which she was prepared to enter. My colleagues do not inform me how this could possibly be either an abuse of discretion or error.

Raymond E. Miller, “Father”, filed an Answer to the Petition to Enter Agreement as Order of Court. There was .no testimony taken at the November 18, 1991 hearing on the Petition and Answer. Under these circumstances, we are required to determine only the relevant issues raised by the petition and answer, accepting as true the pertinent facts set forth in the answer and rejecting those which are alleged in the petition but denied in the answer. University City Savings and Loan Association v. Girard Life Insurance Company of America, 215 Pa.Super. 57, 62, 257 A.2d 92, 95 (1969).

The Mediation/Arbitration Contract, P-2, which Mother petitioned to be entered as an order of the court, contained the following terms and conditions:

... [SJhould a reconciliation not be possible, then the CCS [Christian Conciliation Service] will appoint a group of arbitrators/mediators ... who will mediate and, if necessary, arbitrate the outstanding issues relating to applicable actions: equitable distribution, alimony, alimony pendente lite, support and/or maintenance (child and spousal), custody/visitation, counsel fees, costs and expenses.
... [I]f the domestic dispute ... cannot be resolved and settled ..., then the parties shall submit to the authority of the Board and the dispute ... shall be submitted to the Board for mediation first, and if not successful, then for arbitration. In the event the dispute ... is not resolved after mediation, ... then the Board shall arbitrate and decide all issues in accordance with fair Christian principles ... and shall render a written decision (hereinafter referred to as “Determination”).
The parties agree, in advance, that if the issues cannot be successfully mediated, then both parties will abide by the Determination of the Board. The Determination of the Board shall be final and binding upon the parties, and judgment upon said Determination may be entered by any court having competent jurisdiction.

Petition to Enter Agreement as Order of Court, filed September 16, 1991, Exhibit B, Mediation/Arbitration Contract, pp. 1, 2. (Emphasis added).

Where the “Determination” involved child custody and would have been made by a group of arbitrators appointed by the Christian Conciliation Service of Bucks County, the hearing court refused to entered those provisions which called for binding arbitration as part of any order of court. This is fully consistent with existing law and, in no way, could amount to an abuse of discretion. Any contract pertaining to custody of minor children is always subject to being set aside in the best interest of the child. Mumma v. Mumma, 380 Pa.Super. 18, 22, 550 A.2d 1341, 1343 (1988), appeal denied, 524 Pa. 629, 574 A.2d 70; Walker v. Walker, 308 Pa.Super. 280, 283, 454 A.2d 130, 132 (1982).

The issue before this court is, stated simply, did Judge Scott err when she refused to enter an order which would have purportedly taken away from the court the right to consider the best interest of the children in any forthcoming custody dispute? I agree with my colleagues that an arbitration award cannot be binding on a court, in the matter of child custody, if such award is challenged by one of the parties as not being in the best interests of the child. Majority op., p. 1164. I, however, would go further. I view the obligation of the court to consider, and be responsible for, the best interest of the child at any time the processes and authority of the court are sought to be employed.

Here, Mother sought the power and authority of the court, when she petitioned to have the court approve binding arbitration to finally settle matters involving custody. The trial court had no alternative but to refuse this request. The majority declares that an arbitration award on the issue of custody is subject to review by a court of competent jurisdiction based upon its responsibility to look to the best interests of the child. Majority op., p. 167-69. I could not agree more. It is for precisely this reason that Judge Scott refused to incorporate binding arbitration as a part of any order she would be called upon to sign.

That refusal could not constitute abuse. It is entirely consistent with the law of this state. If this appeal is not to be quashed as having been brought prior to the entry of an appealable order, I would affirm the action of the distinguished trial judge. Accordingly, I must respectfully dissent.

      . Mother presents two issues:
      a. Whether the trial court erred in refusing to enter an Order confirming the August 15, 1991 award of the arbitration board which had been convened at the parties' request; and in finding that, as a matter of public policy, the calling for binding arbitration on the issue of custody/visitation was void.
      b. Whether the trial court erred in entering as an Order the parties’ marital settlement agreement, excluding the portion thereof pertaining to determination of child custody.
      However, in effect, both issues present the same question: the validity and enforceability of binding arbitration provisions in child custody disputes.

      . 42 Pa.C.S.A. § 7303 provides:
      § 7303. Validity of agreement to arbitrate
      A written agreement to subject any existing controversy to arbitration or a provision in a written agreement to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity relating to the validity, enforceability or revocation of any contract.
      1980, Oct. 5, P.L. 693, No. 142, § 501(a), effective in 60 days.

      . 42 Pa.C.S.A. § 7341 provides:
      § 7341. Common law arbitration
      The award of an arbitrator in a nonjudicial arbitration which is not subject to Subchapter A (relating to statutory arbitration) or a similar statute regulating nonjudicial arbitration proceedings is binding and may not be vacated or modified unless it is clearly shown that a party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award.
      1976, July 9, P.L. 586, No. 142, § 2, effective June 27, 1978. As amended 1980, Oct. 5, P.L. 693, no. 142 § 501(a), effective in 60 days.

      . The distinction is addressed by the New York, Supreme Court Appellate Division in Sheets, supra.

      Thus, the best interest of the child is assured protection by this omnipresent judicial check against arbitration awards in custody matters attaining the unassailable finality of awards in other arbitrations. Nor could any such award in a custody matter be given any res judicata consequences against the child, who was not a party to the arbitration. However, such an award would effectively bind the parents of the child to the extent that it settled their disputes, but only insofar as the award did not adversely affect the substantial interest of the child.
      Hence, upon any showing that a provision of an award might be adverse to the best interest of a child, the Court could take such action that was necessary for the best interest of the child. Once the court’s paternal jurisdiction is invoked, it would examine into the matter, de novo, and in doing so could utilize the proof adduced before the arbitration tribunal, could call for new proof, or could employ a combination of both. The Court could then determine what was necessary for the best interest of the child.
      However, the award could not be effectively attacked by a dissatisfied parent merely because it affected the child. Obviously every such award will have that effect. What must be shown to evoke judicial intervention is that the award adversely affects the welfare and best interest of the child—clearly a much narrower issue.

      . We note that the trial court in its opinion stated that it viewed mediation as valuable in that it fosters parental agreement and may even serve to reduce animosity between the parties. It was only the arbitration provision that was struck by the trial court.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    620 A.2d 1169
    COMMONWEALTH of Pennsylvania, Appellee, v. Rhonda Kay CARBAUGH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 19, 1992.
    Filed Feb. 18, 1993.

      Jack W. Connor, Asst. Public Defender, Uniontown, for appellant.
    Alphonse P. Lepore, Jr., Asst. Atty. Gen., Harrisburg, for Com., appellee.
    Before OLSZEWSKI, POPOVICH and MONTGOMERY, JJ.
   OPINION

PER CURIAM:

Appellant, Rhonda Kay Carbaugh, was convicted by a jury of homicide by vehicle while under the influence of alcohol or drugs, homicide by vehicle, driving while under the influence of alcohol, and other various summary offenses. Posttrial motions were filed and denied. Appellant was sentenced to a term of imprisonment of three to seven years for the homicide by vehicle while driving under the influence of alcohol conviction and a consecutive term of six to twelve months imprisonment for the driving while under the influence of alcohol conviction. This direct appeal followed. We affirm the convictions but vacate the judgment of sentence for driving while under the influence.

Appellant raises four issues on appeal: (1) whether the suppression court erred by not suppressing the blood test results; (2) whether the trial court erred by not allowing trial counsel to argue the mandatory sentence for homicide by vehicle while driving under the influence of alcohol; (3) whether the trial court erred by allowing the Commonwealth to introduce hearsay testimony; and (4) whether the sentence was illegal.

On June 8, 1989, appellant was involved in a one car accident. Appellant was driving a truck on S.R. 1003 in Fayette County. Appellant was observed driving at an excessive speed, fishtailing and skidding on the road. A passenger was thrown from the truck and died as a result of head and upper chest trauma. Appellant was subsequently arrested.

Appellant first claims that the suppression court erred by failing to suppress the blood test results. Appellant contends that the results should have been suppressed because 75 Pa.C.S. § 1547(a)(2) is unconstitutional. This section, 75 Pa. C.S. § 1547(a)(2), states that the implied consent law applies to anyone involved in an accident, wherein the operator or passenger of any vehicle involved requires treatment in a hospital or is killed. Appellant is correct in that a panel of this court determined that 75 Pa.C.S. § 1547(a)(2) is unconstitutional. Commonwealth v. Danforth, 395 Pa.Super. 1, 576 A.2d 1013 (1990). The Pennsylvania Supreme Court affirmed that determination in Commonwealth v. Kohl, 532 Pa. 152, 615 A.2d 308 (1992), and held that a blood test based solely on the conditions set forth in 75 Pa.C.S. § 1547(a)(2) is an unreasonable search.

However, the case of Commonwealth v. Ellis, 415 Pa.Super. 220, 608 A.2d 1090 (1992), is more instructive on the present issue. In Ellis, two drivers were involved in an automobile accident and transported to a hospital. The police officer suspected that one of the drivers was intoxicated, not the appellee. The officer asked that the hospital take a blood test of the suspected intoxicated driver. The officer was advised that the blood was already tested and that the driver’s blood alcohol content was above .10. The hospital also advised the officer that the appellee’s blood alcohol content was .256. The officer never asked for this information. The blood tests were suppressed by the trial court and the Commonwealth filed an appeal. A panel of this court determined that because the blood test was taken by the hospital, on their own initiative, it was not violative of the Fourth Amendment in that the necessary government action was absent. Commonwealth v. Ellis, supra.

Presently, the evidence reveals that after the accident on June 8, 1989, appellant was taken to the hospital by a Lifeflight helicopter. The hospital took the blood as part of a routine procedure because appellant was a trauma patient. Officer Allmendinger was not at the hospital, did not request that the hospital take blood for testing and did not go to the hospital to obtain the results. On July 3, 1989, appellant was charged with driving under the influence of alcohol. After these charges were filed, Officer Allmendinger subpoenaed the medical records and ascertained appellant’s blood alcohol content. Therefore, appellant’s rights were not violated by the hospital’s action of taking a blood test and the trial court did not err by failing to suppress the results. Commonwealth v. Ellis, supra.

Appellant next claims that the trial court erred by not allowing trial counsel to state in his closing argument the mandatory penalty for the offense of vehicular homicide, driving while under the influence related. Punishment is a matter solely for the trial court. Commonwealth v. Waters, 334 Pa.Super. 513, 483 A.2d 855 (1984). The jury’s function is to determine guilt or innocence. Commonwealth v. White, 350 Pa.Super. 457, 504 A.2d 930 (1986). The jury is not to know or to consider sentences when deliberating. Commonwealth v. Waters, supra. Appellant contends that the trial court did not have discretion because the sentence was mandatory. However, the fact.that the sentence involved is mandatory is of no consequence. Commonwealth v. White, supra. Therefore, the trial court did not err.

Appellant next claims that the trial court erred by allowing the Commonwealth to introduce the preliminary hearing testimony of Ronnie Pirl, Jr., a deceased witness because it was inadmissible hearsay. The admission of an unavailable witness’s prior recorded preliminary hearing testimony is permitted if the defendant was represented by counsel and had a full opportunity to cross-examine the witness. Commonwealth v. Chestnut, 511 Pa. 169, 512 A.2d 603 (1986); Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 (1980).

Ronnie Pirl, Jr., was a passenger in the vehicle at the time of the accident. Mr. Pirl testified at the preliminary hearing. Appellant was represented by counsel and had a full opportunity to cross-examine Mr. Pirl. Mr. Pirl died after the preliminary hearing. Therefore, his preliminary hearing testimony was admissible at trial and the trial court did not err. Commonwealth v. Chestnut, supra.

Appellant next claims that the trial court imposed illegal sentences because driving under the influence merges with homicide by vehicle while driving under the influence. Appellant is correct in that driving under the influence merges with homicide by vehicle while driving under the influence. Commonwealth v. Voshall, 387 Pa.Super. 47, 563 A.2d 936 (1989), aff'd, 529 Pa. 571, 605 A.2d 1222 (1992). Therefore, the judgment of sentence for driving under the influence must be vacated. Id.

Judgment of sentence at No. 835 of 1989, homicide by vehicle while driving under the influence, is affirmed. Judgment of sentence at No. 835 2/6 of 1989, driving under the influence, is vacated. Jurisdiction is relinquished.


author: JOHNSON, Judge:

text:
    620 A.2d 1172
    In the Interest of: Frank ROY, Appeal of: Robert ROY, Heir at Law of Frank Roy, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 18, 1992.
    Filed Feb. 19, 1993.

      James S. Lederach, Scottsdale, for appellant.
    Gretchen Mundorff, Connellsville, for Donald Roy, participating party.
    Before ROWLEY, President Judge, and JOHNSON and HESTER, JJ.
   JOHNSON, Judge:

Robert Roy appeals from the order which denied his Petition for Disclosure of Confidential Records. We are asked to decide whether an heir can waive the confidentiality provisions of the Mental Health Procedures Act in order to secure documents which might assist in contesting the validity of the decedent’s will. We conclude that the Act must be strictly construed and that the disclosure of documents concerning a person in treatment is prohibited when intended for use outside the course of legal proceedings authorized under the Act. We find no error of law in the denial of the request for disclosure. We affirm.

Appellant Robert Roy (Roy) is one of the surviving sons of Frank V. Roy, deceased. Frank Roy died testate on July 13, 1991. Roy’s brother, Donald Roy, is the named executor under their father’s will and letters testamentary were issued to him. The father, during his lifetime and shortly following the execution of his will in 1986, was the subject of two separate proceedings brought pursuant to the Mental Health Procedures Act, Act 143 of 1976, 50 P.S. §§ 7101 et seq. The one proceeding, filed at No. 1108 of 1986 G.D. in the Fayette County Court of Common Pleas, sought extended involuntary emergency treatment pursuant to Section 302 of the Act, 50 P.S. § 7303. The second proceeding, filed at No. 1227 of 1986 G.D., sought court-ordered involuntary treatment pursuant to Section 304 of the Act, 50 P.S. § 7304.

Roy’s Petition for Disclosure of Confidential Records was filed at both proceedings. Roy alleged that he had filed an appeal from the decree of probate in his father’s estate, believing that, at the time his father executed his will, the father was not of sound mind, capable of disposing of his estate by will for lack of testamentary capacity. He alleged that the will had been executed on May 9, 1986, that the proceedings under the Act had been initiated in June and July of that year, respectively, and that the father had been adjudicated an incompetent by decree dated August 19, 1987.

Roy prayed for permission, along with his counsel, to examine the contents of the files held by the Fayette County Prothonotary at the two docket numbers, in order that he could prepare a petition for the appeal from probate in his father’s estate. He intended to challenge the admission of the purported will to probate on the grounds of his father’s lack of testamentary capacity and/or undue influence. The Honorable William J. Franks denied the petition, citing the confidentiality provisions of the Act, prompting these appeals. We affirm.

Roy posed a single question for our consideration on this appeal:

Whether the heir of a decedent who had been subject to involuntary treatment pursuant to the Mental Health Procedures Act can waive the confidentiality concerning such person required by the Act?

We need only look to the express language of the Act to answer this question. Section 111 of the Act, 50 P.S. § 7111, provides in material part:

§ 7111. Confidentiality of records
All documents concerning persons in treatment shall be kept confidential and, without the person’s written consent, may not be released or their contents disclosed to anyone except:
(1) those engaged in providing treatment for the person;
(2) the county administrator, pursuant to section 110;
(3) a court in the course of legal proceedings authorized by this act; and
(4) pursuant to Federal rules, statutes and regulations governing disclosure of patient information where treatment is undertaken in a Federal agency.
In no event, however, shall privileged communications, whether written or oral, be disclosed to anyone without such written consent. This shall not restrict the collection and analysis of clinical or statistical data by the department, the county administrator or the facility so long as the use and dissemination of such data does not identify individual patients.

The Mental Health Procedures Act is to be strictly construed. Commonwealth v. Moyer, 407 Pa.Super. 336, 340, 595 A.2d 1177, 1179 (1991), alloc. denied, 529 Pa. 656, 604 A.2d 248 (1992). As our learned and distinguished colleague, the Honorable Vincent J. Cirillo, pointed out in Moyer:

A strict construction of Section 7111 reveals that all documents concerning persons in treatment are to be kept confidential and may not be released or disclosed to anyone, absent the patient’s written consent, with certain exceptions ____
The unambiguous language of section 7111(3) leads us to conclude that a patient’s inpatient mental health treatment records may be used by a court only when the legal proceedings being conducted are within the framework of the MHPA, that is, involuntary and voluntary mental health commitment proceedings. We can find no language within the act itself which includes criminal proceedings within the framework of the act, nor can we find any caselaw in the Commonwealth which supports such a proposition.
Furthermore, although no panel of this court has directly addressed the issue of privileged communications under the MHPA, a strict construction of section 7111 leads us to conclude that the first sentence of that section confers a statutory privilege of confidentiality on the patient’s records.

Id. 407 Pa.Super. at 340-341, 595 A.2d at 1179-80 (emphasis in original).

We can paraphrase the cogent analysis by Judge Cirillo in Moyer and observe that there is no language within the Act which includes probate proceedings within the framework of the Act, nor have we been referred to any caselaw to support such a proposition. Based upon our strict construction of the Act, alone, we have no difficulty in finding that Judge Franks did not abuse his discretion nor commit error of law in denying the petition.

In his brief, Roy seeks to argue that, because he is an heir at law of the incompetent, he can waive confidentiality. Roy asserts this on the fallacious premise that heirs represent a decedent’s interest in ascertaining the validity of his own last will and testament. We reject this contention. In Boyd v. Kilmer, 285 Pa. 533, 132 A. 709 (1926), a man conveyed his only property to a neighbor and friend on condition that the neighbor take care of him during the remainder of his life. The man died less than a month later. His surviving daughters sought to have the conveyance cancelled, alleging a fiduciary and confidential relationship between their father and the grantee. At trial, the daughters sought to preclude the testimony of their deceased father’s attorney, the scrivener of the deed, on the basis that the attorney’s testimony would violate the attorney/client privilege, which privilege they, the daughters, would invoke. Our supreme court held that relatives of a deceased client who were not parties to a transaction in which the attorney acted cannot invoke the privilege. The court further held that the right to claim that the communications were privileged was purely personal and did not pass after the client’s death to his relatives, and this is especially so if it appears that their interests were antagonistic to the holder of the privilege and against his deed. Id. at 539-40, 132 A. at 711-12. The court expressly found that the interests of the daughters were adverse to their father and they did not represent him. Id.

In a similar vein, our supreme court has found that where an heir attacks a deed executed by a decedent which is prima facie valid, the heir is regarded as having an interest adverse to the right of the decedent and is therefore precluded from testifying under the Dead Man’s Act. Chambley v. Rumbaugh, 333 Pa. 319, 5 A.2d 171 (1939). It is the transferee who represents the interest of the deceased transferor, and the transferor’s heirs are incompetent to testify against the transfer. Philo v. Rought, 385 Pa. 275, 123 A.2d 168 (1956).

Boyd v. Kilmer, Chambley v. Rumbaugh, and Philo v. Rought, all supra, involve the transfer of real property and the right of an heir to contest the transfer’s validity. The principle is nevertheless valid on the present facts.

Roy urges that he is the heir of his deceased father and therefore he should be permitted to waive the confidentiality provisions of the Mental Health Procedures Act. Even if this were not statutorily prohibited—which it is—Roy could not prevail. The record is clear that the letters testamentary were issued to Roy’s brother, Donald, the named executor. Only Donald could even attempt an argument that he was in a position to give the written consent required under the Act. Since Roy was before the trial court admittedly seeking to overturn the validity of the decedent’s will, he is clearly adverse to the decedent’s interest and could not purport to give any consent for release of the confidential information. His status does not change on this appeal.

The Moyer court instructs us that the privilege we here review is statutory as it relates to the patient’s records. The only exception which might even remotely be applicable on this appeal is subsection 7111(3) which permits release of records to “a court in the course of legal proceedings authorized by this act.” Judge Franks correctly found that the purpose for which Roy desires disclosure—to test the validity of the decedent’s will—is not for a legal proceeding as authorized by the Act.

Since we find that the trial court correctly denied the petition for disclosure of confidential records, we do not consider, nor do we decide, whether Roy has standing to appeal the court orders which were entered in the cases dealing with the involuntary treatment of the deceased father, Frank V. Roy. We note that this panel has previously denied the Motion to Quash filed on behalf of the Estate of Frank V. Roy, Deceased. We point out that the Motion was filed by counsel for the Estate and not by, or on behalf of, the Executor of the Estate. Moreover, the orders from which the appeals have been taken were not entered in the estate proceeding but were entered in the two proceedings previously initiated under the Mental Health Procedures Act. We decline to conclude, as the movant would have us find, that a petition for disclosure of documents at one docket number constitutes a “discovery request” at another, separate docket number.

Finding no merit in the only issue properly before us on these appeals, we affirm the order entered at the two docket numbers, Nos, 1108 and 1227 of 1986, G.D. on December 13, 1991.

Orders AFFIRMED. Jurisdiction relinquished.


author: HUDOCK, Judge.

text:
    620 A.2d 1175
    COMMONWEALTH of Pennsylvania, Appellant, v. Rodney HARRIS, Appellee. (Two Cases) COMMONWEALTH of Pennsylvania, Appellant, v. Albert STORER, Appellee. (Two Cases) COMMONWEALTH of Pennsylvania, Appellant, v. Anthony MILLER, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Howard WOLFE, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Kelly JONES, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1992.
    Filed Feb. 19, 1993.

      Norman Gross, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellant (at 2521, 2522, 2523, 2524, 2770, 2773 and 2021).
    Daniel P. Alva, Philadelphia, for Storer, appellee (at 2523 and 2021).
    John W. Packel, Asst. Public Defender, Philadelphia, for Miller, appellee (at 2524), Wolfe, appellee at (2770), Jones, appellee (at 2773).
    Before McEWEN, DEL SOLE and HUDOCK, JJ.
   HUDOCK, Judge.

In these consolidated appeals, the Commonwealth contends that the trial court was without authority to grant early parole. At issue is the proper interpretation of 42 Pa.C.S. § 9757 (Purdon 1982), 61 Pa.S. § 314 (Purdon 1964), and 61 Pa.S. § 331.17 (Purdon Supp.1992). For the reasons that follow, we vacate the orders granting parole, aggregate the sentences imposed upon the several Appellees, and direct the Parole Board to assume jurisdiction and authority over the parole of each Appellee.

Before deciding the proper interpretation of these sections, we shall briefly discuss the sentencing and parole history of each Appellee.

Rodney Hams

On December 18, 1990, Appellee Harris entered a negotiated plea of guilty to delivery of cocaine and possession with intent to deliver cocaine. The court below, per the Honorable Carolyn Engel Temin, imposed concurrent prison terms of eight to twenty-three months, followed by one year of probation, on each conviction. These sentences were also to run concurrently with a sentence of six to twenty-three months imprisonment previously imposed on Appellee Harris, by the Honorable Pamela Pryor Cohen, for violation of his probation.

On January 23, 1991, Appellee Harris entered a plea of guilty before Judge Cohen to charges of carrying a firearm on a public street, carrying a firearm without a license, and theft by receipt of stolen property, and, on that same date, he was sentenced to a term of four to twenty-three months imprisonment, to be served consecutively to the sentences imposed on December 18, 1990 by Judge Temin. The aggregate maximum of all sentences imposed upon Appellee Harris was, therefore, forty-six months.

On July 15, 1991, Judge Temin granted Appellee Harris immediate parole on both sentences imposed on December 18, 1990, over the written objection of the Commonwealth that she was without authority to do so in light of the fact that Appellee Harris’ aggregate maximum sentence exceeded twenty-four months. Judge Temin denied the Commonwealth’s timely filed motion for reconsideration, without a hearing, on August 14, 1991.

Albert Storer

At the conclusion of a non-jury trial, Judge Temin convicted Appellee Storer of arson, aggravated assault, risking a catastrophe, recklessly endangering another person, and other related crimes. On June 20, 1990, Judge Temin imposed three consecutive sentences of eleven and one-half to twenty-three months imprisonment for the arson, aggravated assault, and risking a catastrophe convictions, and suspended sentences for the remaining crimes. Thus, an aggregate maximum sentence of sixty-nine months was imposed upon Appellee Storer.

On November 21, 1990, Judge Temin granted Appellee Storer parole on the risking a catastrophe conviction. On July 17, 1991, over the Commonwealth’s written objection, Judge Temin paroled Appellee Storer with regard to the aggravated assault conviction. Judge Temin denied, without a hearing, the Commonwealth’s timely filed motion for reconsideration on August 14,1991. On May 1,1992, Judge Temin granted early parole to Appellee Storer on the arson conviction.

Anthony Miller

On June 16, 1987, Appellee Miller entered a negotiated plea of guilty to the charge of aggravated assault. Judge Temin imposed a sentence of time served to twenty-three months imprisonment upon Appellee Miller and immediately placed him on parole. While on parole from this sentence, Appellee Miller was arrested on January 26, 1989, and charged with burglary, criminal trespass, criminal conspiracy, and theft. Judge Ackerman, sitting without a jury, convicted Appellee Miller of all charges. On May 16, 1990, Judge Ackerman sentenced Appellee Miller to eleven and one-half to twenty-three months imprisonment on the burglary charge, and a three year sentence of probation for the conspiracy conviction.

On June 11, 1990, Judge Temin revoked Appellee Miller’s previous grant of parole due to Appellee Miller’s convictions before Judge Ackerman and ordered him to serve the balance of his maximum sentence of twenty-three months that he had not previously served. Judge Temin further ordered that the balance of the maximum sentence be served consecutively to Judge Ackerman’s sentence, resulting in an aggregate maximum sentence of forty-six months.

On June 24, 1991, Appellee Miller filed a pro se petition for early parole with the trial court. The Commonwealth filed a written opposition to the petition. On July 18, 1991, following a hearing, Judge Temin granted Appellee Miller’s petition for early parole, effective immediately, and refused the Commonwealth’s timely motion for stay of her order pending appeal. Judge Temin also denied, without a hearing, the Commonwealth’s timely-filed motion for reconsideration of the parole order on August 14, 1991.

Howard Wolfe

On December 21, 1990, Appellee Wolfe entered a guilty plea before Judge Temin to seven separate burglaries and criminal conspiracies. On February 25, 1991, Judge Temin imposed a prison term of eleven and one-half months to twenty-three months for the first burglary conviction, a consecutive term of six to twenty-three months imprisonment for the second, a consecutive term of six to twenty-three months for the third, a consecutive probationary term of three years for the fourth, and three concurrent terms of three years probation for the remaining convictions. The aggregate maximum sentence was, therefore, sixty-nine months.

On July 13, 1991, the Prison Population Management Unit of the Philadelphia Prisons (PPMU) filed a petition on behalf of Appellee Wolfe for parole. Judge Temin granted the petition on July 24, 1991. On August 6, 1991, she reaffirmed the grant of parole over the objection of the Commonwealth.

Kelly Jones

On October 9, 1990, Appellee Jones entered a plea of guilty to burglary and criminal conspiracy before Judge Temin. Judge Temin thereafter imposed consecutive sentences of imprisonment of eleven and one-half to twenty-three months for the burglary, and six to twenty-three months imprisonment for the conspiracy charge. Thus, Appellee Jones’ maximum aggregate sentence was forty-six months. On July 8, 1991, the PPMU filed a petition for early parole on behalf of Appellee Jones, which the Commonwealth opposed. Judge Temin granted Appellee Jones early parole, effective September 22, 1991.

The Commonwealth contends that the trial court was without authority to grant parole in each case. We agree. In a recent decision by a panel of this Court, it was determined that two county sentences of eight to twenty-three months which were imposed consecutively are required by law to be aggregated and that, because the resultant forty-six month aggregate maximum sentence exceeded two years, exclusive parole power was vested in the state parole board. The panel therefore vacated the trial court’s orders of early parole and ordered the appellee to surrender to the custody of the Superintendent of the Philadelphia Department of Prisons for completion of each of the two eight month minimum sentences. Commonwealth v. Evola, 421 Pa.Super. 595, 618 A.2d 969 (1992).

The facts in Evola sufficiently mirror the sentencing circumstances of Appellees Storer, Wolfe and Jones so as to directly control the disposition of these appeals; each of these Appellees received multiple consecutive county sentences imposed by Judge Temin which, when aggregated, vests exclusive parole jurisdiction with the Pennsylvania Board of Probation and Parole (Board). See also Ambrek v. Clark, 287 F.Supp. 208 (E.D.Pa.1968) (Parole Board had exclusive authority to parole person serving aggregate maximum sentence in excess of two years, even though aggregate was comprised of consecutive maximum sentences of twelve months).

The sentencing history of Appellees Harris and Miller includes parole and/or probation revocations. The interplay of these sentences in the aggregation of sentences for determining parole jurisdiction was not specifically addressed in Evola. Following the rationale in Evola, however, in Appellee Harris’ case, the probation violation was imposed concurrently and does not aggregate with the sentence of Judge Temin on December 18, 1990. But the aggregation of the county sentence previously imposed by Judge Temin and the subsequent county sentence imposed by Judge Cohen gives the Board exclusive parole jurisdiction of him. Thus, we also dispose of the Commonwealth’s appeal as to Appellee Harris on the basis of Evola.

The Commonwealth’s appeal as to Appellee Miller remains. As stated above, the Commonwealth aggregated a county sentence with a term of imprisonment resulting from a county parole violation to arrive at an aggregate maximum sentence exceeding two years. While we find that the rationale of Evola also applies to these sentences, we supplement and reinforce Evola as follows. We also must address the trial court’s request for remand in each of these appeals.

This Court has recently stated:

Under Pennsylvania Law, the authority to parole convicted offenders is split between the common pleas courts and the Pennsylvania Board of Probation and Parole. When an offender is sentenced to a maximum term of imprisonment of less than two years, the common pleas court retains authority to grant and revoke parole; when the maximum term is two years or more, authority to grant parole is vested in the Parole Board.

Commonwealth v. McDermott, 377 Pa.Super. 623, 631, 547 A.2d 1236, 1239 (1988) (parenthetical omitted); See 61 P.S. § 331.17. Therefore, in order to ascertain whether the trial judge has power to parole [a convicted offender], we must consider whether the maximum term of imprisonment imposed on [the convicted offender] is less than two years.

Pennsylvania statutory law provides:

Whenever the court determines that a sentence should be served consecutively to one being then imposed by the court, or to one previously imposed, the court shall indicate the minimum sentence to be served for the total of all offenses with respect to which sentence is imposed. Such minimum shall not exceed one-half of the maximum sentence imposed.

42 Pa.C.S.A. § 9757. Our Commonwealth Court has interpreted this statute to mandate automatic aggregation of sentences once the trial court imposes a consecutive sentence. Gillespie v. Commonwealth Department of Corrections, 106 Pa.Commw. 500, 508, 527 A.2d 1061, 1065 (1987) [alloc. den., 518 Pa. 614, 540 A.2d 535 (1988)]. Commonwealth v. Ford-Bey, 404 Pa.Super. 281, 288, 590 A.2d 782, 783 (1991). Additionally, we note that the trial court’s failure to indicate a total minimum term on the record is not fatal. Gillespie v. Commonwealth, Department of Corrections, supra. Because a minimum sentence may not exceed half of the maximum sentence, 42 Pa.C.S. §§ 9755(b), 9756(b) (Purdon 1982), section 9757, supra, has been interpreted as requiring the aggregation of maximum as well as minimum sentences. Blackwell v. Commonwealth, Pennsylvania Board of Probation and Parole, 36 Pa.Cmwlth. 31, 387 A.2d 506 (1978). An order by the sentencing judge which purports to either grant parole to a person serving a maximum sentence in excess of two years, Tillman v. Commonwealth, Pennsylvania Board of Probation and Parole, 48 Pa.Cmwlth. 325, 409 A.2d 949 (1980) (en banc), or to deny parole to such a person, Commonwealth v. Call, 249 Pa.Super. 511, 378 A.2d 412 (1977) (en banc), is beyond the authority of the sentencing court and is, therefore, a nullity.

The aggregate maximum sentence of each of the several Appellees exceeds two years; therefore, exclusive control over these parole matters should lie with the Pennsylvania Board of Parole. Judge Temin, however, while recognizing the holdings of Gillespie and Fordr-Bey, found them to be distinguishable and concluded that she retained jurisdiction over parole matters in each case. Such a conclusion is in error. The basic premise of Judge Temin’s rationale is that of the two sentences aggregated in both Gillespie and Ford-Bey, one sentence had a maximum exceeding two years. Thus, the trial court reasons that “[i]n the cases that are the subject of the instant appeal, all of the sentences were [county] sentences only. There are no cases interpreting § 9757 to require aggregation of such sentences, and there are substantial reasons to refuse to extend the Ford-Bey holding to sentences under (61 P.S. § 314).” Trial Court Opinion, 12/13/91, at pp. 8-9 (footnote omitted). As stated above, our recent decision in Commonwealth v. Evola, supra, fills the precedential void recognized by Judge Temin. As to parole violation sentences Judge Temin concluded, “There is absolutely no basis in the law for applying § 9757 so as to aggregate the ‘back-time’ part of a county prison sentence with a subsequently imposed sentence so as to change the jurisdiction over reparole.” Trial Court Opinion, 12/13/91, at p. 12.

The powers of the Board with respect to parolees is defined in 61 P.S. § 331.17 (Purdon Supp.1992), which reads as follows:

The board [of Probation and Parole] shall have exclusive power to parole and reparole, commit and recommit for violations of parole, and to discharge from parole all persons heretofore or hereafter sentenced by any court in this Commonwealth to imprisonment in any prison or penal institution thereof, whether the same be a state or county penitentiary, prison or penal institution, as hereinafter provided. It is further provided that the board shall have exclusive power to supervise any person hereafter placed on parole (when sentenced to a maximum period of less than two years) by any judge of a court having criminal jurisdiction, when the court may by special order direct supervision by the board, in which case the parole case shall be known as a special case and the authority of the board with regard thereto shall be the same as herein provided with regard to parole cases within one of the classifications above set forth: Provided, however, That, except for such special cases, the powers and duties herein conferred shall not extend to persons sentenced for a maximum period of less than two years, and nothing herein contained shall prevent any court of this Commonwealth from paroling any person sentenced by it for a maximum period of less than two years: And provided further, That the period of two years herein referred to shall mean the entire continuous term of sentence to which a person is subject, whether the same be by one or more sentences, either to simple imprisonment or to an indeterminate imprisonment at hard labor, as now or hereafter authorized by law to be imposed for criminal offenses. The power of the board to parole shall extend to prisoners sentenced to definite or flat sentences. (Emphasis added).

The above-emphasized language clearly provides for the aggregation of several sentences in order to reach an aggregated maximum which exceeds two years. To read this language, as does the trial court, as requiring that one of the sentences aggregated have as its maximum a two year sentence, in actuality renders aggregation unnecessary. Moreover, such an interpretation violates well-settled rules of statutory construction. By interpreting the section to require that one of the component sentences exceed two years, Judge Temin’s interpretation places an additional condition not present in the clear language of the section. See 1 Pa.C.S. § 1921(b) (Purdon Supp.1992) (when the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit); see also Worley v. Augustine, 310 Pa.Super. 178, 456 A.2d 558 (1983) (courts may not engraft additional terms or conditions upon a statute that the General Assembly has omitted). Further, Judge Temin’s interpretation renders superfluous the above language concerning “one or more sentence.” It is an equally well-settled rule of statutory construction that the General Assembly intends every word in a statute to be given effect and was not intended as mere surplusage. See 1 Pa.C.S. § 1922(2) (Purdon Supp.1992); Commonwealth v. Scott, 376 Pa.Super. 416, 546 A.2d 96 (1988), alloc. den., 522 Pa. 612, 563 A.2d 497 (1989). The above-emphasized language can only be interpreted to mean that any sentences for criminal offenses which are authorized by law shall be aggregated to determine the entire continuous term of imprisonment to which a criminal defendant is sentenced. Thus, pursuant to Section 337.17, county sentences are to be aggregated. Moreover, because parole violators are simply recommitted to serve the balance of their original sentence, there is no reason why the original sentence and the new sentence should not be aggregated. Upon aggregation the trial court loses its authority over the aggregated county sentence. Gillespie v. Commonwealth, Department of Corrections, supra.

We sympathize with, but must reject, Judge Temin’s purported policy reasons for not extending the Ford-Bey holding to aggregate maximum sentences of two years where the constituent offenses are all county parole sentences. The trial court first claims that the Ford-Bey holding applied to county parole sentences would deprive trial judges of flexibility, discretion and responsibility to decide parole matters. Initially, we find that parole considerations are not necessarily components of the sentencing process. See generally, 42 Pa.C.S. § 9721(b) (Purdon 1982). Moreover, the aggregation requirement does not limit the trial court’s discretion. Aggregation is only required when consecutive sentences are imposed; the trial court still enjoys discretion to impose concurrent sentences upon multiple convictions and, therefore, retain parole power.

The trial court also states that the aggregation statute as interpreted by this Court would grant the Parole Board authority over prisoners who may have been sentenced by two different judges on different days to two county parole sentences, even though each judge intended the sentence to be served under their authority in the county prison system. We are not persuaded by this claim. The trial court’s responsibility in sentencing a criminal defendant is to impose the appropriate sentence on that defendant for the convictions presently before the trial court. The trial court is not to be concerned with the subsequent aggregation of future convictions. See Bachman v. Jeffes, 488 F.Supp. 107 (1980) (fact that petitioner’s time in prison may have exceeded that envisioned by sentencing court did-not merit habeas corpus relief).

Finally, the trial court refers to Georgevich v. Court of Common Pleas of Allegheny County, 510 Pa. 285, 507 A.2d 812 (1986). Georgevich is a per curiam order our Supreme Court granting a petition for extraordinary relief and/or assumption of original mandamus jurisdiction, and declaring that Section 314 is applicable to prisoners serving sentences of less than two years imprisonment whether confined to state or county correction facilities. Judge Temin states that the sentencing- court was given power to parole the criminal defendant in Georgevich, even though he was also serving a five to ten year state sentence. There is no mention of this latter sentence in the published per curiam order.

In her opinion, Judge Temin opines that, if this Court should disagree with its interpretation of Section 9757, we should not aggregate the sentences but, rather, remand for resentencing. This we cannot do. The trial court states that if it improperly advised the several Appellees regarding the proper parole authority, all of the guilty pleas accepted are involuntary. Initially, we note that the proper remedy for an involuntary plea is a petition to withdraw the plea and stand trial. While Judge Temin claims that the individual Appellees detrimentally relied on her misapprehension of the law, not one of the Appellees makes such a claim in answer to the present appeal. Judge Temin also fails to observe that Appellee Storer did not enter a plea, but rather was convicted by her in a non-jury trial. As stated above, we find that parole considerations are not a necessary component of the sentencing process. Thus, the trial court’s mistaken belief as to who would control the parole of the several Appellees is of no significance. Furthermore, we note that these cases are before us on appeals by the Commonwealth from the orders granting parole. Appellees did not attack the legality of the sentences, nor could they in these appeals.

In reaching this conclusion, we distinguish the recent opinion of this Court in Commonwealth v. Sutton, 400 Pa.Super. 291, 583 A.2d 500 (1990), alloc. den., 528 Pa. 610, 596 A.2d 156 (1991), and the Pennsylvania Supreme Court opinion relied upon therein, Commonwealth v. Goldhammer, 512 Pa. 587, 517 A.2d 1280 (1986), cert. den’d, 480 U.S. 950, 107 S.Ct. 1613, 94 L.Ed.2d 798 (1987).

In Sutton, a criminal defendant appealed the sentence imposed upon him for aggravated assault, arguing, inter alia, that his sentence was illegal because the sentence imposed on the aggravated assault conviction exceeded the maximum possible sentence for the “more serious” charge of attempted murder. In response to the appeal by the defendant, the Commonwealth conceded that Sutton committed the crime at issue prior to it being upgraded to a first degree felony and, because Sutton was sentenced for a first degree felony, a remand was necessary. The Commonwealth asserted that the sentences on all counts should be vacated and the case remanded for resentencing. Contrarily, Sutton argued that he only appealed the sentence imposed upon him for one count and, therefore, the other counts should not be disturbed. In rejecting Sutton’s position and remanding for complete sentencing, this Court, citing Commonwealth v. Goldhammer, supra, stated, “Any expectation of finality in Appellant’s original sentencing scheme was subverted by the appeal which he filed. Remand for resentencing on the sole count of aggravated assault for the shooting of Officer Corvi would clearly upset the trial court’s ability to effectuate its original sentencing scheme.” Commonwealth v. Sutton, 400 Pa.Super. at 294, 583 A.2d at 502 (footnote omitted).

In Commonwealth v. Goldhammer, supra, this Court reversed the sentences imposed upon Goldhammer by the trial court on the basis that the underlying charges should not have been brought because the statute of limitations had expired. All other sentences were affirmed. The sentence reversed was the only one in which a jail term was imposed. The Commonwealth filed a petition for reargument, requesting this Court to remand the record to the sentencing court for resentencing in light of this Court’s decision. The petition for reargument was denied. Upon granting allocatur, our Supreme Court affirmed this Court’s reversal of the theft convictions, but declined to remand the matter for resentencing, believing that resentencing under these circumstances was barred by the double jeopardy clause. Certiorari was granted by the United States Supreme Court, which remanded the case for reconsideration in light of federal precedent. On remand, our Supreme Court determined that the Commonwealth did not have the power to challenge Goldhammer’s sentence on appeal. Our Supreme Court recognized, however, that it was Goldhammer, himself,

who originally appealed all the judgments of sentence imposed in the trial court. Having done so, Goldhammer voluntarily assumed the risk of all the attending repercussions, including the possibility that the Commonwealth would seek resentencing in the event appellate review resulted in disruption of the original sentencing plan, to wit, reversal of the only jail term imposed. We hold therefore, that where a defendant appeals a judgment of sentence, he accepts the risk that the Commonwealth may seek a remand for resentencing thereon if the disposition in the appellate court upsets the original sentencing scheme of the trial court.

Commonwealth v. Goldhammer, 512 Pa. at 592, 517 A.2d at 1283.

Goldhammer and Sutton, do not stand for the proposition that remand is necessary when the sentencing court claims it misapprehended the law and, therefore, was prevented from implementing a desired sentencing scheme. In both of these cases, the appellate court vacated a component of the sentencing scheme which affected the term of incarceration imposed. Moreover, none of the criminal defendants in the present consolidated cases in any way challenged their sentences. Thus, Goldhammer and Sutton do not require a different disposition. See also Abraham v. Department of Corrections of the Commonwealth of Pennsylvania, 150 Pa.Cmwlth. 81, 615 A.2d 814 (1992) (remand for resentencing not required where the sentencing judge imposed a consecutive sentence but intended that the sentence be served in a county prison, even though mandatory aggregation required the sentence to be served in a state facility).

In Abraham v. Department of Corrections of the Commonwealth of Pennsylvania, the District Attorney of Philadelphia County filed a petition to review, under the original jurisdiction of Commonwealth Court, seeking an order compelling the Commonwealth, Department of Corrections, to aggregate all consecutive sentences of each prisoner, regardless of the designated place of confinement, and to take custody of prisoners in the Philadelphia County Prison whose aggregated maximum sentence of five or more years. The only issue raised by the District Attorney involved the proper place of confinement for these prisoners under 42 Pa.C.S. § 9762 (Purdon 1982). On January 13, 1992, the Honorable David W. Craig, President Judge of the Commonwealth Court, issued a peremptory mandamus order and memorandum which required that all consecutive sentences be aggregated for purposes of determining place of confinement. The Department of Corrections filed a motion to reopen this peremptory mandamus order. This motion was heard before a Commonwealth Court panel. Finding that aggregation was mandatory under § 9757, supra, Commonwealth Court rejected the Commonwealth’s argument against aggregation as well as its request for a remand for resentencing. However, for reasons discussed below, the panel limited which sentences could be aggregated.

Although no question regarding the proper parole authority over the individual prisoners was presented in Abraham, Commonwealth Court nevertheless addressed the issue. Citing to Gillespie, supra, Commonwealth Court found that where a prisoner is already subject to Parole Board authority by reason of an earlier sentence exceeding two years, the trial judge who imposes a subsequent consecutive sentence of less than two years maximum (county sentence) thereby subjects the sentence to aggregation under Section 9757 and also comes under Parole Board authority and is “necessarily aware that he lacks the discretion available and appropriate for a lone sentence of less than two years.” Abraham, at 95, 615 A.2d at 821. However, Commonwealth Court went on to agree with the Commonwealth that, where a county sentence of less than two years maximum stands alone or precedes a state sentence of two or more years, the sentencing court should not be stripped of its discretion to parole by aggregation with subsequent state sentences. Commonwealth Court also held that the aggregation of a parole sentence with a county sentence would result in an illegal sentence.

Decisions of the Commonwealth Court are not binding on this Court and should be followed only when the reasoning contained therein is persuasive. Commonwealth v. McDermott, 377 Pa.Super. 623, 547 A.2d 1236 (1988). Based on our own analysis of the pertinent statutes, as discussed infra, we find that Commonwealth Court’s discussion in Abraham was not only unnecessary but unpersuasive.

Commonwealth Court ignores the plain meaning of the language of Section 331.17 to the effect that the two year sentence may be established by one or more sentences. Like Judge Temin, the court in Abraham, without discussion of the statutory language, imposes a condition where none exists. Additionally, we note that Commonwealth Court did not address the situation where all of the aggregated sentences consist of county sentences. Commonwealth Court would acquiesce in the fact that a sentencing court loses parole power if a subsequent consecutive county sentence is imposed but finds improper .the loss of parole power if a prior county sentence is aggregated with a subsequent state sentence. As stated above, the proper concern of a court at sentencing is to impose what is believed to be the proper sentence that would both punish the crime committed and meet the rehabilitative needs of the defendant. If multiple sentences are to be imposed at that time, the sentencing court can maintain parole power by making the sentences concurrent. However, once another judge sentences that defendant on another conviction, or a “back-time” sentence is imposed due to a parole violation, that original sentencing court cannot expect to continue to exercise parole power. It is not the fact that automatic aggregation upsets the original sentencing court’s intent in sentencing—it is the commission of subsequent crimes which may frustrate the original attempt of the court to rehabilitate the defendant.

In the present consolidated cases early parole was improperly granted to each Appellee. We therefore reverse each order.

Orders reversed. The matters are remanded for proceedings consistent with this opinion.

      . See 35 P.S. § 780-113(16).

      . 18 Pa.C.S. § 6106 and 18 Pa.C.S. § 3925, respectively.

      . 18 Pa.C.S. § 3301, 18 Pa.C.S. § 2702, 18 Pa.C.S. § 3302, and 18 Pa.C.S. § 2705, respectively.

      . 18 Pa.C.S. § 2702.

      . 18 Pa.C.S. § 3502, Pa.C.S. § 3503, 18 Pa.C.S. § 903(a), and 18 Pa.C.S. § 3903, respectively.

      . 18 Pa.C.S. § 3502 and 18 Pa.C.S. § 903(a), respectively.

      . 18 Pa.C.S. § 3502 and 18 Pa.C.S. 903(a), respectively.

      . As shall be discussed infra, Section 9757 and Section 331.17 operate independently of each other. Ambrek was decided prior to the enactment of Section 9757. However, the pertinent section to support the District Court’s conclusion was Section 331.17 which has not changed. Thus we reject the significance attached to the history of Section 9757 as espoused by Judge Temin.

      . On the basis of Evola, we likewise reject Appellees' assertion that Section 9757 was intended only to mandate aggregation of state sentences. This interpretation conflicts with the clear statement in the above statute that the two year period "be by one or more sentence."

      . The power of the court of common pleas to parole those criminal defendants sentenced to an aggregate maximum sentence of less than two years is provided in 61 P.S. § 314 (Purdon 1964):
      The courts of quarter sessions and the courts of oyer and terminer of the several judicial districts of the Commonwealth, and other courts of record having jurisdiction, are authorized, after due hearing, to release on parole any convict confined in the county jail, house of correction, or workhouse of their respective district....
      This section was repealed in so far as it related to persons over whom exclusive jurisdiction to parole was vested upon the Board of Parole by act of 1941, Aug., P.L. 861, § 35.

      . In response to the Commonwealth’s appeal, the Philadelphia Public Defender's Association in a brief filed on behalf of Appellees Miller, Wolfe and Jones, argues that our interpretation of Section 9757 is violative of the constitutional doctrine of separation of powers. Like Judge Temin’s bare assertion that Section 9757 is unconstitutionally vague, we find this constitutional argument largely undeveloped on appeal. Moreover, we find it meritless. The grant of parole is purely an administrative function which does not intervene on the power of the judiciary. See generally, Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 28 A.2d 897 (1942). See also Abraham v. Department of Corrections of the Commonwealth of Pennsylvania, [150] Pa.Cmwlth. [81], 615 A.2d 814 (1992).

      . At issue in Goldhammer was also whether suspended sentences were subject to appellate review. This issue is not involved in the present cases.

      . In a dissent joined by Justice Zappala, Chief Justice Nix points out that, contrary to the majority’s statement, Goldhammer never challenged the sentences imposed upon him.

      . This section reads:
      § 9762. Sentencing proceeding; place of confinement
      All persons sentenced to total or partial confinement for:
      (1) maximum terms of five or more years shall be committed to the Bureau of Correctionfs] for confinement;
      (2) maximum terms of two years or more but less than five years may be committed to the Bureau of Corrections for confinement or may be committed to a county prison within the jurisdiction of the court;
      (3) maximum terms of less than two years shall be committed to a county prison within the jurisdiction of the court except that as facilities become available on dates and in areas designated by the Governor in proclamations declaring the availability of State correctional facilities, such persons may be committed to the Bureau of Correction[s] for confinement.

      . For example, Commonwealth Court reasoned that the aggregation of a consecutive parole sentence, that is, adding the parole sentences to both the aggregated minimum and aggregated maximum, would result in an illegal sentence because the aggregated minimum would be more than one-half of the aggregated maximum and, therefore, violative of the statutory language of Section 9757.
      The aggregation provision of Section 331.17 is completely consistent with, although not dependent upon, the general aggregation statute, which explicitly applies to sentences previously imposed. While Abraham correctly recognizes that § 331.17 contained no language to mitigate the aggregation, the panel of Commonwealth Court errors in thinking that the parole violation sentence upsets the mínimums and máximums originally imposed by the trial court. Aggregation is necessary to establish where the defendant can be incarcerated and who will have jurisdiction over parole. It docs not aggregate the sentence and therefore create a new minimum and maximum. Commonwealth Court apparently reasoned that an order revoking parole and requiring the parole violator to serve his maximum sentence in prison, in effect transforms the minimum sentence into the maximum sentence. It then reasoned that such a sentence cannot be aggregated with another sentence because the resultant aggregate minimum sentence would be more than one-half of the aggregate maximum sentence in violation of Section 9757. This reasoning is flawed. A parole revocation order has no effect on either the minimum or maximum sentence. To the contrary, the order leaves the minimum sentences intact and merely requires the defendant to serve the maximum sentence in custody. If this were not so, all parole revocations would be illegal per se because the post-revocation sentence would always contain a minimum term in excess of one-half of the maximum.