text:
    445 A.2d 1299
    COMMONWEALTH of Pennsylvania ex rel. Phyllis J. DARLING v. Robert E. DARLING, Appellant.
    Superior Court of Pennsylvania.
    Argued April 13, 1981.
    Filed May 21, 1982.

      Bruno A. Muscatello, Butler, for appellant.
    No appearance entered nor briefs submitted on behalf of appellee.
    Before CAVANAUGH, JOHNSON and SHERTZ, JJ.
   PER CURIAM:

This is an appeal by appellant-husband Robert E. Darling, from an order of support in the amount of $46 per week for his wife, appellee Phyllis J. Darling. Appellant contends that the support order is excessive and based on facts not of record, thereby constituting an abuse of discretion by the lower court. We agree and, accordingly, reverse and remand this case for a new support hearing.

On December 7, 1979, appellee filed a complaint for support against appellant. In her complaint, appellee sought support for herself alone since no children were born of this marriage. A hearing was subsequently held on March 11, 1980, before the Honorable John C. Dillon of the Court of Common Pleas of Butler County.

At the hearing, appellee testified that she was employed at the Butler County Mushroom Farm and earned a net pay of approximately $550 per month. An additional $30 per week was deducted from her salary and put into a credit union savings account. Mrs. Darling further stated that her monthly expenses totaled between $655-$700.

Appellant, employed as a painter at Pullman-Standard, testified that he earned $989 net pay per month. Up until three weeks before the hearing, appellant held a second job at Wayne Sell Trucking Corporation which netted between $200-$430 monthly. Appellant indicated, however, that he had been laid off as a result of work shortage and had no guarantee of re-employment. His monthly expenses were estimated to be $1104.

Following the hearing, the lower court ordered appellant to pay $46 per week for appellee’s support, retroactive to December 7, 1979. In his memorandum opinion accompanying the order, the court explained the support award as follows:

The record indicates that the wife earns approximately $585.00 per month, and that her husband’s earnings at Pullman are approximately $1,000.00 per month. In addition, his second source of earnings yields from $200.00 to $400.00 per month. For the purpose of this proceeding, we use $200.00. In applying the guidelines to this situation, to wit, wife’s income of $600.00 and husband’s income of $1,200.00, we find that $200.00 is the suggested monthly support order. Converting this to a weekly order indicates that $46.00 is an appropriate order.

Our review of the lower court’s order is narrow. In Machen v. Machen, 278 Pa.Super. 135, 137, 420 A.2d 466, 467 (1980), we summarized the applicable standard of review in support matters:

In support proceedings, an appellate court will defer to the lower court, absent a showing of a clear abuse of discretion. Costello v. LeNoir, 462 Pa. 36, 337 A.2d 866 (1975); Weiser v. Weiser, 238 Pa.Super. 488, 362 A.2d 287 (1976) (SPAETH, J. concurring and dissenting opinion). In order to determine whether an abuse of discretion has occurred, we consider whether the lower court has misapplied or overridden existing law, made a manifestly unreasonable judgment, or ruled with partiality, prejudice, bias or ill will. Straub v. Tyahla, 274 Pa.Super. 411, 418 A.2d 472 (1980) (child support) quoting Commonwealth ex rel. Levy v. Levy, 240 Pa.Super. 168, 177, 361 A.2d 781, 785 (1976). Among the principles of existing law that the lower court must apply is the principle that in determining a spouse’s support obligation, the factors to be considered are income, potential earning capacity, and other property and financial resources. Straub v. Tyahla, supra; Commonwealth ex rel. ReDavid v. ReDavid, 251 Pa.Super. 103, 380 A.2d 398 (1977).

We have reviewed the proceedings below and must conclude that the lower court’s judgment, in awarding appellee $46 per week in support from appellant, was “manifestly unreasonable.”

Our reason for so finding is that the court inappropriately considered the $200 obtained from appellant’s second source of earnings in fashioning its support order. There was uncontradicted evidence presented at the support hearing that appellant had been laid off from his second job three weeks earlier. Appellant further testified, without contradiction, that he had no present hope of regaining employment at Wayne Sell Trucking Corporation. While we might ordinarily look askance at such a sudden reduction in earnings, See Weiser v. Weiser, 238 Pa.Super. 488, 362 A.2d 287 (1976), we decline to do so here. There is nothing in the record to indicate that appellant voluntarily relinquished his alternate employment in an attempt to reduce the amount of support owed to appellee. Nor has appellee argued that appellant acted in less than good faith in this regard. Although appellant has, in the past, been able to secure employment in addition to his job at Pullman-Standard, the time for measuring earning power is the time of the hearing, not the past. Lindenfelser v. Lindenfelser, 396 Pa. 530, 535, 153 A.2d 901, 905 (1959); Commonwealth v. Testa, 226 Pa.Super. 585, 587-588, 323 A.2d 199, 200-201 (1974). Thus, the fact that appellant has maintained second jobs in the past, or may do so again at an indeterminable time in the future, should not have been considered by the court in determining appellant’s present support obligation.

Since the lower court improperly calculated appellant’s income to be $1200 per month, its support award was, therefore, excessive. For this reason, we find it necessary to reverse this case and remand for a new support hearing to clarify the financial situations of both parties.

On remand, the court should also make an effort to ascertain facts left either unexplored or undeveloped at the support hearing. For example, it is unspecified whether appellant’s claimed monthly expenses included obligations incurred by himself or with appellee jointly. While a support hearing need not be exhaustive, there must be competent and sufficient information available to the factfinder to enable him or her to fix a reasonable and proper amount for support. The scant record below does not allow for such a determination.

Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

SHERTZ, J., did not participate in the consideration or decision in this case.

      . The lower court indicated in its opinion that it arrived at the $46 per week figure by applying “the guidelines.” We are aware that some counties in our state employ specific guidelines to aid in the determination of appropriate support payments. By finding the instant award excessive, we are not passing any judgment on the usefulness of support guidelines. Rather, we find only that the court, in applying the guidelines, improperly considered appellant’s monthly income to include the $200 formerly received from Wayne Sell Trucking Corporation.

      . Because of our disposition of this case, it is unnecessary to decide whether the court properly made its order retroactive to December 7, 1979.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    445 A.2d 1302
    Carlene STAWIARSKI and John J. Stawiarski, Her Husband v. Richard M. HALL, D. D. S. and Hall Associates, Ltd., A Professional Corporation, Appellants.
    Superior Court of Pennsylvania.
    Argued May 20, 1981.
    Filed May 21, 1982.

      Gail Gratton, Pittsburgh, for appellants.
    Joseph M. Ludwig, Pittsburgh, for appellees.
    Before HESTER, POPOVICH and DiSALLE, JJ.
   PER CURIAM:

Presently before the court is appellants’ appeal from the Order of the lower court dated October 10,1980, wherein the lower court reactivated appellees’ cause of action; and appellees’ motion to quash appellants’ appeal.

We deny appellees’ Motion to Quash Appeal; in addition, we vacate the October 10, 1980 Order of the lower court and reinstate the termination of appellees’ cause of action pursuant to Allegheny County Local Rule 229(e).

Addressing first appellees’ Motion to Quash appellants’ appeal, we conclude that pursuant to Pa.Rules of Appellate Procedure 311(a)(1), appellants have the right to file the instant appeal, sans permission, notwithstanding the interlocutory nature of the appealed-from Order.

Pa.R.A.P. 311, which implements 42 Pa.C.S.A. § 5105(c) (Interlocutory Appeals) provides in relevant part:

Rule 311. Interlocutory appeals as of Right
(1) Affecting judgments. An order opening, vacating or striking off a judgment, or refusing to open, vacate or strike off a judgment.
Amended November 30, 1978, May 16, 1979 and February 27, 1980.

The appealed-from Order constitutes “an order opening, vacating or striking off a judgment. . .”, which judgment terminated appellees’ cause of action by operation of law on May 18, 1979. Thus appellants filed their timely appeal as of right for the reason that neither permission nor leave to file same was required.

Appellants contend that the lower court abused its discretion when it found that appellees had satisfied the “good cause shown” standard set forth below. We agree and therefore vacate the Order of the lower court.

Allegheny County Local Rule 229(e) regarding the termination by operation of law of inactive cases provides:

Any matter pending in the Civil or Family Division in which there has been no activity of record for a period of two (2) years or more shall be terminated automatically by operation of law by reason of inactivity. The first period of two years is to begin on January first, 1973. The matter may be reactivated by the Court upon petition for good cause shown after such notice as the Court shall direct. The filing of a paper after automatic termination under this rule shall not reactivate the terminated matter. (Emphasis added).

Imposing the same three-part “good cause shown” burden on the moving party as is applicable in a proceeding to open a judgment of non pros (Corcoran v. Florentino, 277 Pa.Super. 256, 419 A.2d 759 (1980)), we conclude that the lower court abused its discretion when it reactivated the instant case. The three criteria which must coalesce include: (1) The petition to reactivate must be timely filed; (2) The reason for the delay must be reasonably explained; and (3) The facts constituting grounds for the underlying cause of action must be alleged.

There is no evidence of record which, even when reviewed in a light most favorable to the appellees, satisfies either of the first two criteria; to-wit: That the petition to reactivate was timely filed or that the appellees offered a reasonable explanation for the inactivity in their lawsuit.

Appellees’ action was terminated by operation of law pursuant to Local Rule 229(e) set forth above on May 18, 1979; there being no activity of record for two (2) years. Thereafter, no activity of record occurred until the Fall of 1980—more than one year and four months later—when their petition to reactivate was presented. There is, therefore, nothing of record to support a finding that appellees’ Petition to Reactivate was timely filed.

In addition, appellees offer no legally sufficient explanation to justify the two (2) year period of inactivity (from May 18, 1977 when service of the writs was effectuated, until May 18,1979 when their cause of action was terminated by operation of law). The only allegation which touches upon this issue can be found in paragraph eleven (11) of appellees’ verified Petition wherein it is alleged:

11. The Plaintiffs recently contacted attorney Joseph M. Ludwig, Esquire, with respect to the case, having become exasperated due to the inactivity of the case with their former attorney.

In Dupree v. Lee, 241 Pa.Super. 259, 361 A.2d 331, 335 (1976), this court held:

If counsel’s mistake, oversight, or neglect is to be a reason to vacate a non pros, that mistake, oversight or neglect must be reasonably explained. White v. Alston, 231 Pa.Super. 438, 331 A.2d 765 (1974). As was stated in Hale v. Uhl, 293 Pa. 454, 458, 143 A. 115, 116 (1928), “If for such unsubstantial reasons a salutory rule of court could be set at naught, it would be useless, and a defendant would be unable to protect himself from intolerable delays.” If counsel’s explanation or excuse for his mistake, oversight, or neglect, is reasonable, then the second criteria for opening a non pros will be met and the non pros may be vacated. However, if counsel merely states that he was negligent without offering a reasonable explanation or excuse, we are left with no alternative but to refuse to vacate the non pros. The argument that refusing to vacate a judgment of non pros punishes the plaintiff for his counsel’s negligence is not supported by decisional law when counsel’s negligence is not reasonably explained. There must be some point at which our courts must refuse to accept an attorney’s negligent representation of his client when it interferes with the orderly administration of justice.

(Emphasis added).

It is abundantly clear that an allegation of exasperation with a former attorney, without much more, does not constitute a legally sufficient explanation to justify in excess of two years of record inactivity so as to warrant the reactivation of a proceeding terminated by operation of law.

Appellees’ Motion to Quash Appeal is denied.

The Order of the lower court dated October 10, 1980 is vacated and we reinstate the automatic termination by-operation of law of appellees’ cause of action in accordance with Allegheny County Local Rule 229(e).

DiSALLE, J., did not participate in the consideration or decision of this case.

      . The appealed-from Order provides:
      “ORDER OF COURT
      AND NOW, to-wit, this 10th day of October, 1980, upon presentation and consideration of the within Petition it is hereby ORDERED, ADJUDGED and DECREED that the Plaintiffs are permitted to proceed and that the subject suit is hereby reactivated.
      BY THE COURT,
      /s/ McGowen”

        It also must be noted that appellees erroneously identified their triggering pleading as a “Petition to Reactivate Complaint.” Appellees’ action was initiated on April 18, 1977 by the filing of a Writ of Summons in Assumpsit and Trespass, returnable May 18, 1977. Both appellants were properly served with writs on May 18, 1977. A Complaint has never been filed of record.

      . As authorized by Pa.Rules of Judicial Administration 1901(c) and pursuant to Allegheny County Local Rule 229(3), the class of cases of which this is one, is deemed terminated without further docket entry and excluded from the docket system.


author: PER CURIAM: POPOVICH, Judge,

text:
    445 A.2d 1304
    COMMONWEALTH of Pennsylvania, v. Charles BURKETT and Geraldine Press, Appellants.
    Superior Court of Pennsylvania.
    Submitted Nov. 5, 1981.
    Filed May 21, 1982.

      Paul A. Prince, Pottstown, for appellants.
    Ronald T. Williamson, Assistant District Attorney, Norris-town, for Commonwealth, appellee.
    Before BROSKY, POPOVICH and MONTGOMERY, JJ.
   PER CURIAM:

Following a hearing before a District Justice, appellants Charles Burkett and Geraldine Press were found guilty, respectively, of violating § 1543(a) (driving while under suspension) and § 1575(a) (permitting a violation) of the Pennsylvania Motor Vehicle Code, 75 Pa.C.S.A. §§ 1543(a) and 1575(a). They appealed to the Court of Common Pleas, and, after a hearing de novo, were again found guilty. This direct appeal followed.

The testimony established that, on May 17, 1980, Officer Thomas J. Liott observed Burkett operating a Ford Pinto. Officer Liott testified that he stopped the vehicle because he knew Burkett’s operating privileges had been suspended. As he stopped the vehicle, he observed Burkett switch seats with his passenger, Press. Entered into evidence, over objection, were certifications of Burkett’s records from the Bureau of Traffic Safety. These records indicated that the Bureau had sent Burkett a Notice of Suspension which advised him that the credit toward the suspension would begin when his operator’s license was received by the Bureau. These records also indicated that the Bureau had received his license on November 12, 1979.

Burkett alleges first that the Bureau’s records were inadmissible as hearsay. Under Commonwealth v. Sweet, 232 Pa.Super. 372, 335 A.2d 420 (1975) and Commonwealth v. Slider, 229 Pa.Super. 93, 323 A.2d 376 (1974), these records are admissible under the official statement exception to the hearsay rule.

Burkett also argues that the Commonwealth failed to establish that he had actual notice of the suspension, as required by Commonwealth v. Kane, 460 Pa. 582, 333 A.2d 925 (1975). In Kane, the only evidence presented was that the notice of suspension was mailed. Here, however, there is the additional evidence that Burkett’s license was returned to the Bureau and the testimony that Burkett attempted to conceal his actions by removing himself from the driver’s seat. We find this evidence sufficient to establish that Burkett had actual knowledge that his operating privileges had been suspended.

Appellant Press argues that she was cited under the wrong section of the Vehicle Code. Section 1575 of the Vehicle Code under which she was charged, provides:

(a) General Rule.—No person shall authorize or permit a motor vehicle owned by him or under his control to be driven in violation of any of the provisions of this title. 75 Pa.C.S.A. § 1575.

Press argues that, § 1574 of the Vehicle Code is more appropriate because it specifically pertains to her offense whereas § 1575 is a general provision. Section 1574 provides:

(a) General Rule.—No person shall authorize or permit a motor vehicle owned by him or under his control to be driven upon any highway by any person who is not authorized under this chapter [licensing provisions] or who is not licensed for the type or class of vehicle to be driven. 75 Pa.C.S.A. § 1574.

We must agree. Section 1574 clearly applies to the facts of the instant case. It has long been the law of Pennsylvania that a person cannot be charged under general provisions of a penal code where special provisions are available. Commonwealth v. Bidner, 282 Pa.Super. 100, 422 A.2d 847 (1980); Commonwealth v. Buzak, 197 Pa.Super. 514, 179 A.2d 248 (1962). Therefore, we must reverse the lower court’s ruling that appellant Press was properly charged with violating § 1575.

Affirmed as to appellant Charles Burkett. Reversed and judgment of sentence vacated as to appellant Geraldine Press.

POPOVICH, J., files a dissenting statement.

POPOVICH, Judge,

dissenting:

Contrary to the Majority’s holding, I find that, in examining the facts instantly in light of the specific provisions of the statute in question (75 Pa.C.S.A. §§ 1574 & 1575), appellant-Press was properly charged with violating 75 Pa.C.S.A. § 1575. Therefore, I dissent.


text:
    445 A.2d 1306
    Shirley H. WEINGRAD, Administratrix of the Estate of Richard H. Weingrad, Deceased v. Donald LIPPY and Philadelphia Electric Company, Defendants & Montgomeryville Airport, Inc., Additional Defendants. Appeal of Keith S. ERBSTEIN, Esquire.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1981.
    Filed May 21, 1982.

      James E. Beasley, Philadelphia, for appellant.
    Keith Erbstein, Philadelphia, for Weingrad, appellee.
    Adrian J. Gordon, Philadelphia, for Lippy, appellee.
    Patrick W. Kittredge, Philadelphia, for Philadelphia, appellee.
    Martin Bashoff, Philadelphia, for Montgomeryville, appellee.
    Dianne L. Anderson, Philadelphia, for participating party.
    Before HESTER, McEWEN and SHERTZ, JJ.
   PER CURIAM:

Keith S. Erbstein, Esquire, counsel for the plaintiff in the lower court, has appealed from an Order dated January 27, 1981, entered by the trial court, citing Mr. Erbstein for criminal contempt and fining him $35.00, for his alleged failure to comply with a previous Order of Court.

A jury trial commenced on January 19, 1981 before Judge Bullock. Plaintiff rested her case on Friday, January 23, 1981, following which a conference was held in chambers. During the conference, defense counsel announced that he also rested. The following conversation then ensued:

THE COURT: The case is over. The evidence is all in on the question of liability.
MR. KITTREDGE [defense counsel]: Yes.
THE COURT: I want your points by 9 o’clock in the morning in room 604. Does anyone have their points already done?
MR. KITTREDGE: No, sir. Do you wish me to make sure that it is filed, or will you?
THE COURT: You make sure it is filed.

Following this exchange in chambers, Judge Bullock and counsel then discussed the order of closing speeches to the jury. Counsel for the plaintiff contended that, although the defendant had rested, the defendant “did move for at least the admission of that one exhibit into evidence.” Therefore, counsel for the plaintiff requested that he be permitted to deliver a rebuttal speech to the jury.

The Court listened to both sides of the argument, but decided not to rule on the issue until Monday morning. The Court stated “If I rule that the defendant has offered evidence, and if the defendant wishes to offer more evidence, I will permit that.” The defendant indicated that, if the Court concluded that it had already presented evidence, it might present testimony on Monday, January 26, 1981.

In order to submit points for charge as requested by the Court, appellant worked on Saturday, January 24, 1981. He requested that his secretary come into the office at 8 o’clock a. m. on Monday, January 26, 1981 so that the points could be ready at 9 o’clock. Appellant arrived at Judge Bullock’s chambers at 9 o’clock. At this time, his points were still in the process of being completed and duplicated. He had instructed his secretary to have the points delivered when completed. Shortly after 9 o’clock a. m., the defendant hand-delivered its points for charge. Appellant called his secretary at approximately 9:10 a. m. and instructed her to have the points delivered immediately. At approximately 9:23 a. m., the plaintiff’s points arrived, and were given to Judge Bullock’s secretary. When Court convened on Monday morning, the defendant changed its mind and decided to present evidence. As a result, the charge of the Court was not delivered until Tuesday, January 27, 1981.

On January 26, 1981, Judge Bullock stated the following in chambers:

THE COURT: All right, gentlemen, you will remember the last thing I said on Friday was that 9 o’clock meant 9 o’clock for the points. Mr. Gordon called me before 9 o’clock and said he was not submitting any points. The electric company points were just about on the button. But the plaintiff’s points.did not arrive until 9:23.
Under the circumstances, Mr. Erbstein, I am fining you $35, and I will make that in the form of a written order later today. I told you on Friday afternoon, and explained to you why. As a result I didn’t have a chance to go through your points completely, as I did go through the electric company’s points. Some people don’t seem to listen.

Appellant contends that there is no legal basis for the contempt citation. We agree; and, therefore, reverse.

The power of a Court to impose a summary criminal contempt citation is presently derived from the Act of July 9, 1976, P.L. 586 No. 142, 42 Pa.C.S.A. § 4131, which provides in relevant part:

“The power of the several courts of this Commonwealth to issue attachments and inflict summary punishments for con-tempts of court shall be restricted to the following cases,

II. (2). Disobedience or neglect by officers, parties, jurors or witnesses of, or to the lawful process of the court; . . .

In Commonwealth v. Garrison, 478 Pa. 356, 386 A.2d 971 (1978), the Court enumerated the criteria necessary to support a finding of contempt under this section, as follows:

1. The order or decree must be definite, clear, specific and leave no doubt or uncertainty in the mind of the person to whom it was addressed of the conduct prohibited;
2. The contemnor must have had notice of the specific order or decree;
3. The act constituting the violation must have been volitional; and
4. The contemnor must have acted with wrongful intent.

Appellant argues that the first two criteria did not apply to the instant case, since Judge Bullock’s “request” was not in the form of an “order or decree”, and also because he did not receive any written notice of the specific order or decree. Following the discussion in chambers on Friday, January 23, 1981, Judge Bullock stated in open court: “Gentlemen, 9 o’clock means 9 o’clock for your points to be in chambers 604, so I can go over them.” Therefore, it would appear that Judge Bullock attempted to be clear concerning his directive. However, based upon our decision in this matter, we need not address this issue.

On the basis of our full review of the record, we conclude that the act which constituted the violation was not volitional and that appellant did not act with wrongful intent. In Commonwealth v. Haefner, 470 Pa. 392, 368 A.2d 686, 688 (1977), the Court held: “The mere showing of noncompliance with a court order or misconduct ... is never sufficient, alone, to prove contempt.” We agree with this reasoning, and find it dispositive of the instant case. Obviously, appellant prepared his points for charge prior to 9 o’clock on January 26, 1980. It is undisputed that he requested that his secretary come to work early that morning in order to type them. We cannot agree that appellant willfully caused his points of charge to be delivered to the Court 23 minutes late.

Appellant also argues that, since the lower court did not in fact charge the jury until Tuesday, January 27, 1980, that the contempt citation was unwarranted. We find this argument spurious. In the interest of judicial economy and efficiency, Judge Bullock properly directed that points for charge be delivered to his office at a specific time. If there were evidence to support a finding that appellant failed to timely deliver the points for charge of his own volition, and with wrongful intent, we would not hesitate to affirm the contempt citation.

Order reversed.

SHERTZ, J., did not participate in the consideration or decision of this case.

      . See Commonwealth v. Washington, 466 Pa. 506, 353 A.2d 806 (1976); Commonwealth v. Washington, 470 Pa. 199, 368 A.2d 263 (1977); Commonwealth v. Giordano, 254 Pa.Super. 543, 386 A.2d 83 (1978).


author: JOHNSON, Judge:

text:
    445 A.2d 1308
    Jerome MOOREHEAD, Appellant, v. Milton LOPATIN.
    Superior Court of Pennsylvania.
    Argued April 13, 1982.
    Filed May 28, 1982.

      William R. Haushalter, Pittsburgh, for appellant.
    Alan Frank, Pittsburgh, for appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

Plaintiff appeals from the order of the lower court granting summary judgment based upon the failure of the plaintiff to join, as a necessary party defendant, the defendant’s wife who held title as tenant by the entireties to the subject real estate. Since we believe that, in an action for personal injuries occasioned by the alleged negligent maintenance of real estate by the owner, the joinder of tenants by the entireties who share ownership in the subject property is compulsory, we affirm.

The facts upon which summary judgment was granted are not in dispute. The complaint alleged that on February 4, 1978, plaintiff sustained personal injuries at premises owned by the defendant, Milton Lopatin, which injuries were caused by the latter’s negligence. The complaint was initially filed on January 17, 1980. Six months later, the complaint was reinstated and the individual defendant was served on August 14, 1980.

In his answer and new matter, the defendant averred that the subject real estate had been owned by himself and his wife, as tenants by the entireties, since August 30, 1976, and that a deed showing their joint ownership had been recorded in the county office of the Recorder of Deeds on August 31, 1976. These facts were admitted by the plaintiff in his reply to new matter. At the time of consideration of the defendant’s motion for summary judgment, the defendant’s wife was not named as a party defendant, there had been no attempt to join the wife as a defendant, and the time in which permissive joinder might have occurred had long since passed.

Rule 2227(a) of the Pennsylvania Rules of Civil Procedure relating to Compulsory Joinder, provides, as follows:

(a) Persons having only a joint interest in the subject matter of an action must be joined on the same side as plaintiffs or defendants.

Whether Rule 2227(a) requires the granting of summary judgment in an action brought against a married person, where there exists no timely attempt to join the spouse in a suit in trespass alleging negligent maintenance of real estate held as tenants by the entireties, does not appear to have been previously decided by our appellate courts. Clear guidance as to the correct result to be achieved may be found, however, in Minner v. Pittsburgh, 363 Pa. 199, 69 A.2d 384 (1949).

In Minner, our supreme court considered the argument brought on appeal by two of three devisees of real estate that a judgment entered on a jury verdict against them should be set aside since the third devisee had not been served with the complaint and had, therefore, not been required to defend the action. Each of the defendant-appellants had received a Ve interest in real estate owned by their uncle during his lifetime. The uncle had devised the remaining % interest to a third nephew who was also named as a party defendant but who had not been served. Then trial judge Michael A. Musmanno, Jr. had entered judgment on the verdict against both the original defendant, the City of Pittsburgh, and the additional defendants, the deviseeproperty owners. In rejecting the property owners’ claim that the nonservice of the third property owner resulted in a failure to join an indispensable party, our supreme court declared:

The liability for the negligence complained of having grown out of ownership of real estate held by tenants in common, all three owners were required to be joined. 20 R.C.L. 678, 17. Accordingly, the City named [the three nephews] in its complaint to bring them in as additional defendants. However, [one nephew] was not served, but that fact did not bar proceeding to trial and obtaining a verdict in the City’s favor, for the full amount of the verdict . . . against [two nephews], both of whom were served.1 We are satisfied that no error was committed in refusing the motion of these appellants for a new trial.

363 Pa. at 205, 69 A.2d at 387. (Footnote omitted; emphasis added).

In the instant appeal, the plaintiff was on notice that the property in question was held jointly by virtue of the deed recorded seventeen months before the accident, which deed remained of record at the time the complaint was filed. Though plaintiff could have sought leave to amend his complaint, such amendment would have been to no avail at any time after February 3, 1980, due to the applicable statute of limitations.

Plaintiff attempts to argue, in his brief, that the property in question was under the exclusive possession, maintenance and control of the named defendant only, and that the lawsuit is based upon the failure of the named “spouse in possession to fulfill duties of care to the plaintiff.” We need not consider this argument, inasmuch as the complaint filed contains merely the bare averment that:

2. Defendant is an individual whose residence is unknown, who is the owner of real estate located at 1325 Fifth Avenue, Pittsburgh, Allegheny County, Pennsylvania.

Neither the complaint nor the reply to new matter contain even a suggestion that the plaintiff viewed the defendant as anything other than the owner of the real estate.

The subject matter of this action is the real estate at 1325 Fifth Avenue in the City of Pittsburgh. We are satisfied that the named defendant and his spouse held only a joint interest in the subject real estate at all times material to this action. Cf. Maloney v. Rodgers, 184 Pa.Super. 342, 350, 135 A.2d 88, 92 (1957); Uzarski v. Union National Bank, 152 Pa.Super. 433, 436, 33 A.2d 459, 461 (1943).

Pa.R.C.P. 2227(a) requires dismissal of an action, brought against only one party where there exists no timely attempt to join another necessary party as a defendant. Minner v. Pittsburgh, supra.

Where, as here, the plaintiff seeks to proceed against only one person upon a cause of action involving the alleged negligent maintenance of real estate owned by two parties as tenants by the entireties, and where no attempt has been made to amend the complaint to join the spouse within the period allowed by the applicable statute of limitations, we find no difficulty in holding that summary judgment dismissing the complaint is dictated.

The order granting summary judgment is affirmed.

      . The plaintiff placed the case at issue by his praecipe filed October 14, 1980. Cf. Pa.R.C.P. 1026, Pa.R.C.P. 1033. The motion for summary judgment was not filed until February 13, 1981. Answers to interrogatories directed to plaintiff had been previously filed on January 7, 1981.

      . We note, with disapproval, that the reproduced record contains a copy of the complaint which is at variance with the original filed in this case. In the reproduced record, there is a handwritten interlineation to Paragraph 2 of the complaint, set forth above, which would appear to be an attempt to bolster plaintiffs argument. The propriety of submitting a purported copy of a document which places averments before this court which are not of record is, at least, questionable.

      . Several lower court cases have considered the issue posed here, and have reached an identical result. See, Martier v. Equitable Gas Co., 42 Pa.D. & C.2d 572 (1967) (complaint dismissed where defendant failed to join tenant by entireties of property on which plaintiff sustained injury, and statute of limitations had run); Sampson v. Goodrich, 58 Del.Co.Rep. 63 (1970) (summary judgment granted where plaintiff failed to join tenant by entireties, failed to answer request for admission, and statute of limitations had run); Capodici v. Catalini, 50 Pa.D. & C.2d 714 (1970) (summary judgment granted following amendment to complaint joining tenant by entireties where bar of statute of limitations raised as new matter); Medleycott v. Harris, 60 Pa.D. & C.2d 780 (1973) (preliminary objection raising failure to timely join tenant by entirety as necessary party sustained).


author: MONTEMURO, Judge:

text:
    445 A.2d 1311
    COMMONWEALTH of Pennsylvania v. Joseph DEAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 20, 1981.
    Filed May 28, 1982.

      Richard W. Hoy, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   MONTEMURO, Judge:

The instant case is taken as an appeal from judgment of sentence against appellant, Joseph Dean. Appellant filed post-trial motions which were argued and denied and which presented three issues of alleged error for our review: did the lower court err (1) in denying a motion to suppress identification evidence; (2) in permitting an officer to testify as to identification made at the line-up; (3) in failing to grant mistrial for prosecutional misconduct? We find no error in the record and we affirm the judgment of sentence.

A summary of the testimony reveals the following facts: the complaining witness left her place of employment after 12:30 a. m., walked to her automobile and entered it. Before she could close the door, the appellant appeared and begged her to assist him by giving a “jump” to his disabled vehicle. She assented, and drove at his direction to a dead-end street. There he forced her to engage in oral sex and robbed her of forty-three dollars. Appellant threatened to find the complainant and kill her if she told anyone about the incident; he demanded identification to make his threat credible.

The complainant sought help and reported the facts immediately to a police officer and then to a detective. Eight days later, she recognized the defendant when he entered her place of business while assisting with a delivery of milk. The complainant succeeded in delaying the appellant and his co-worker long enough to allow the police to arrive and make an arrest. Later she selected the appellant as her assailant from a line-up.

The appellant’s first argument is that this line-up was prejudicial and that his motion to suppress should have been granted. Upon review of the record, however, we find that the lower court’s adjudication on motion to suppress is detailed and convincingly presents facts and law that show no prejudice to appellant. His counsel was present and participated in the arrangement of the line-up; the other participants resembled him in size, coloring, and clothing; no suggestive remarks were made by police officers to the complaining witness.

It is clear that the complainant had an opportunity to observe the appellant’s face before and during his sexual assault. Her spontaneous identification of him the next week was untainted by any suggestion by others, as was her reidentification at the line-up and in court. Introduction of identification evidence under more prejudicial circumstances has been held “harmless” in light of valid, unequivocal eyewitness identification. See e.g. Commonwealth v. Hancock, 455 Pa. 583, 317 A.2d 588 (1974).

Appellant’s second allegation of error is that the lower court permitted hearsay testimony by a police officer as to the fact that complainant identified appellant in the line-up. We disagree, and find no error in the lower court’s decision to permit the testimony.

A case in point is that of Commonwealth v. Sanders, 260 Pa.Super. 358, 394 A.2d 591 (1978), in which the court stated in part:

... In a trial for rape, the fact that the woman upon whom the alleged rape was committed made complaints to persons to whom she would naturally complain, is competent evidence.... This would solve the problem presented here, except that the detectives testified not only that the victim made prompt complaint, but they also testified as to whom she identified as the perpetrators....
Here the victim identified her assailants in a police mug shot book .... However, we believe it was not error to permit this testimony. The declarant was present in court and could have been examined by defense counsel and the jury could have observed her demeanor as she answered questions. As Judge Spaeth observed in Commonwealth v. Dugan, (concurring opinion), 252 Pa.Super. 377, 386, 381 A.2d 967 at 971 . . . The principle reason for excluding hearsay is the danger that the declarant’s credibility cannot be assessed. That danger was not present here. . . Id., 260 Pa.Super. at 365-66, 394 A.2d at 594.

We feel that the instant situation corresponds to that in Sanders, supra, and Dugan, supra, and therefore we hold that appellant’s second allegation of error is without merit. The trial court’s discretion in permitting testimony by the officer on the subject of identification at line-up was properly exercised, and presents no appealable issue.

Finally, appellant alleges that behavior by the prosecuting attorney in attempting-to introduce an inadmissible statement should have led to a mistrial. Once again, we disagree and find that the lower court exercised sound discretion.

The circumstances surrounding the motions for mistrial grew out of the following circumstances: the mother of the appellant offered alibi testimony in court which conflicted with her statement given to the detective who interviewed her and her two daughters in her home two weeks after the date of the crime. Her earlier statement might be read to indicate that one daughter, Maureen, was in her home on the night of the crime. In court she stated that Maureen was not there that night. Maureen could not be located at the time of the trial.

There was some confusion as to which woman testified to which statement on the detective’s report. The trial judge forbade testimony as to the content of Maureen’s statement on the grounds that it was hearsay in view of Maureen’s unavailability as a witness. The detective testified, out of jury hearing, that all three women signed the statement, that Maureen claimed to have been there the night of the crime and to have not seen appellant, but that the mother had consistently testified that Maureen was not home that night, despite her signature on the paper containing all three statements.

The first exchange that led to the request for mistrial is reflected in the record as follows:

Q. And this statement which you signed is different from, then, what you told the detective in that regard?
A. Yes.
Q. So that it would be inaccurate to say that your daughter was at home and did not see your son that night?
Defense Attorney: Your Honor, I object.
The Court: That’s argumentative.
Sustained. (N.T. Vol. 5, 81-84)

At sidebar, the court pointed out that the question was not answered, that the district attorney was attempting to “argue to the jury through the witness”, but that she “didn’t get the questions across.” The court offered a curative instruction if desired, but both counsel agreed that none was needed.

Later, the detective gave testimony before the jury and in passing he stated as follows:

A. Well, I read the complete statement that I had taken from them, interviews. (N.T. Vol. 6, 53)

Defense counsel again moved for mistrial on grounds that the officer had been instructed “not to make reference to the statements of other people involved.” (N.T. Vol. 6, 54). The trial judge, however, had already ruled that testimony as to the fact of the interviewing of all three women was admissible, “they talked, all three of them.” It was only the content of the statement of the missing Maureen that was not to be mentioned.

The test to be applied at motion for mistrial is whether improper evidence was admitted at trial, such as would so compromise the fact finder that it would be unable to remain impartial, thereby prejudicing appellant beyond a reasonable doubt. Commonwealth v. Farrell, 265 Pa.Super. 41, 401 A.2d 790 (1979). Careful scrutiny of the actual testimony shows that the hearsay statement of the daughter, Maureen, was never presented to the jury in any form. It could not, therefore, have influenced the impartial judgment of this jury to the appellant’s prejudice. In an excess of caution the court once more offered curative instructions, and again the offer was declined. (N.T. Vol. 6, 54-55). The discretion of the trial judge in refusing mistrial on grounds of admission of improper evidence due to prosecutional misconduct was wisely exercised, and we affirm that decision.

There being no error on the part of the lower court, the judgment of sentence is affirmed.


author: MONTEMURO, Judge: WIEAND, Judge,

text:
    445 A.2d 1314
    In the Matter of the ADOPTION OF David Lynn STURGEON, a Minor. In the Interest of David Lynn STURGEON. Appeals of CLEARFIELD COUNTY CHILDREN AND YOUTH SERVICES and Winfield Scott and Donna Scott.
    Superior Court of Pennsylvania.
    Argued Oct. 15, 1981.
    Filed May 28, 1982.

      Toni M. Cherry, DuBois, for appellants.
    John A. Burkhiser, Oil City, for participating parties.
    Before WIEAND, JOHNSON and MONTEMURO, JJ.
   MONTEMURO, Judge:

This case concerns the adoption of a young child, David Lynn Sturgeon, who has been placed in two different adoptive families by an agency with undisputed legal custody of the child. Certain aspects of the case arose in Clearfield County and other aspects arose in Venango County, so that this court on appeal must deal with a tangled jurisdictional situation as well as with the human tragedy involved. Because the facts are unusual, we shall summarize them briefly, before embarking on a full discussion in the body of this opinion.

Winfield Scott and his wife, Donna Scott, (Scotts) are residents of Clearfield County, Pennsylvania. James L. Beck and his wife, Virginia M. Beck, (Becks) are residents of Venango County, Pennsylvania. The Clearfield County Children and Youth Services (Clearfield Agency) placed David Lynn Sturgeon, (David), the subject of this litigation, with the Scotts for the purpose of adoption. Before the adoption became final in Clearfield County, the Agency removed David from the Scott home and shortly thereafter placed him with the Becks in Venango County, again for the purpose of adoption. The court in Venango County, over the objections of the Clearfield Agency and private counsel for the Scotts, awarded custody of David to the Becks and withheld a decision on the Becks’ adoption petition pending the outcome of this appeal.

For the reasons that follow, we affirm the decision of the Venango County Court of Common Pleas to accept the matter for hearing, to award custody to the Becks, and to dismiss all filings by the Clearfield Agency and the Scotts which would tend to obstruct the future adoption of David by the Becks.

FACTS

David, the subject of this appeal, was born on January 10, 1978, in Clearfield Borough, Clearfield County. His father, David Lynn Easton, and his mother, Donna Louise Sturgeon, were twenty (20) and seventeen (17) years of age respectively at the time of his birth. They were young, single, and apparently not very much in love.

The baby initially resided with his mother, but both parents, on or about March 26, 1979, voluntarily placed David into the care and custody of the Clearfield Agency. On or about the same date, the Clearfield Agency placed the child in a foster home. On July 2,1979, the parents of David filed a Petition for Voluntary Relinquishment of Parental Rights and Duties. The Clearfield Agency joined in said Petition and agreed to accept custody of the child until such time as the child was adopted or otherwise placed. (R.18a-23a) This petition was filed in the Court of Common Pleas of Clearfield County, Pennsylvania, Orphans’ Court Division, and captioned: In re: David Lynn Sturgeon, d.o.b. 1-10-78, Number 1628. (R. 18a). On July 5, 1979, the Honorable John K. Reilly, Jr., President Judge of the Court of Common Pleas of Clearfield County, entered an order awarding temporary custody of the child to the Clearfield Agency pending a final resolution of the Petition which he scheduled for August 29, 1979. On or about July 11, 1979, the Clearfield Agency removed the child from temporary foster care placement and placed him with the Scotts, appellants herein, for the purpose of adoption. Although it is not clear from the record, (R. 25a), both sides agree that the Scotts on or about July 30, 1979, filed a “Report of Intent to Adopt” under the same court term and number as the Petition for Voluntary Relinquishment, supra. On August 29, 1979, Judge Reilly entered a final order forever terminating all parental rights and duties of the natural parents.

On October 31, 1979, the Clearfield Agency, through its caseworker, Ms. S. Jean Camberg, who had arranged for the child’s placement with the Scotts, filed with the court in Clearfield County a “Report of Intermediary,” to which was attached Clearfield Agency’s consent to the proposed adoption by the Scotts (R. 28a-31a). It should be noted here that Ms. S. Jean Camberg resigned her position on the same date she filed the “Report of Intermediary”, and her last home visit with the Scotts was on September 18,1979. (N.T. 155)

At this point, if the usual and normal procedures in an adoption case had taken place, it seems clear that in all likelihood the Scotts would today be the adoptive parents of David. However, events subsequently transpired which gave rise to this litigation and appeal.

On January 4, 1980, after David had been with the Scotts for nearly six months, the Clearfield Agency received a telephone report of suspected child abuse concerning David. Mr. Dennis Caldwell, (Caldwell), a supervisor in the employ of the Clearfield Agency, the next day conducted an investigation of the report of suspected child abuse and presumably an investigation of the Scott home and their suitability to be adoptive parents.

According to his later testimony, Mr. Caldwell became gravely concerned about the placement during his visit to the Scott home. Chiefly, the basis for his concern was that he observed a most unusual lack of physical contact between Mrs. Scott and the two year old she intended to adopt. (N.T. Vol. 1, 78)

On the 8th or 9th of January, he re-visited the Scott home, and this time he interviewed Mr. Scott, Mrs. Scott being at a class she was required to attend as a result of a drunken driving charge. Mr. Scott and David appeared to have a better relationship, but in conversation Mr. Scott admitted to concern over raising the child and over his wife’s inability to “settle down” and he discussed her continuing problems with the use of alcohol and marijuana. The child, again, was largely unsupervised, and although he would sit on Mr. Scott’s lap, he would not hug or kiss him. (N.T. 81a-82a).

Supervisor Caldwell then planned a third visit to the Scott residence on January 15, 1980, this time asking a colleague, Mr. Endress, to help with evaluation. Prior to departure for the Scott home, Mr. Caldwell filed an amended Report of Intermediary with the Clearfield County Court, requesting an additional six months to supervise the placement before scheduling a final adoption. (R. 32a-33a)

Thereafter, he and Mr. Endress spent another two and one-half hours in observation of the situation and reached a determination that the Scotts were not suitable adoptive parents. The child seemed positively averse to Mrs. Scott; . . . “the child would push her away and slap and hit her and kick her and anything a child that age would do that didn’t want to be picked up.” (N.T. Vol. 1, 86) Although Mr. Scott called the boy “my son” and seemed to notice when he wandered, Mrs. Scott seemed to be “unable to give anything to the child”, showed no emotion toward him, felt she couldn’t read to him, and was unwilling to give him crayons for fear he would scribble on the walls. (N.T. Vol. 1, 119-121)

Caldwell and Endress conferred and determined to remove David from the Scott home immediately. He was taken to a hospital for a check-up and placed in the hands of an experienced foster mother for temporary care.

Caldwell’s testimony was that he informed the Scotts that David would be in foster care for ten days pending any legal action which the Scotts might decide to take concerning David’s removal, and that if no such action was taken during the ten (10) day period, the Clearfield Agency would thereupon proceed to locate and place David in another home for purposes of adoption.

Mr. Scott’s testimony stressed his understanding that the removal was based upon the original report of child abuse, which he knew was unfounded. He decided therefore to let the agency take David and “we’ll get it straightened out.” He also states that he was told that he had “no rights” and that “there was nothing we could do about it.” (N.T. Vol. 2, 94)

Mr. Endress’ testimony confirms that of both the supervisor and the adoptive father. He personally told the Scotts what he himself believed to be true: that he thought they probably had no legal right to David because the agency had custody of him, but that they should contact their attorney, and that no move would be made other than foster care for the next ten days. (N.T. Vol. 1, 127-128)

The next day, January 16, 1980, Caldwell personally advised Judge Reilly, the President Judge of the Clearfield County Court of Common Pleas, of David’s removal from the Scott home, his reasons for taking that action, and the Agency’s intention to seek a new adoptive home for David. Judge Reilly told Caldwell to wait ten (10) days, and if no petition was filed by the Scotts during that time, to go ahead and place the child in another adoptive home. (N.T. Vol. 1, 91). No legal papers were filed, however, by the Scotts or the agency, and the court took no official action sua sponte. There appears in the Record a mention of a meeting attended by Judge Reilly and the attorneys for the Scotts and the Clearfield Agency during the ten day period. (N.T. Vol. 1, 92)

On February 2, 1980, no appeal or petition having been filed by the Scotts, Clearfield Agency placed David for adoption with the Becks in Venango County. On the same date, Clearfield Agency and the Becks executed a Placement Agreement and said Agreement provided, inter alia, that “the finalization of this placement hinges on the legal consequences of the previous placement.” (R. 75a)

On March 13, 1980, an Interagency Agreement in Adoption Placement was entered into between Clearfield Agency and Venango County Children and Youth Services (Venango Agency) which provided that the Venango Agency would supervise the adoptive home of the Becks and provide supervisory reports to the Clearfield Agency and notify Clearfield Agency of any changes in the status of the Beck adoptive home. (R. 74a).

On February 7, 1980, the Becks filed a “Notice of Intent to Adopt” in the Court of Common Pleas of Venango County, Orphans’ Court Division, No. 49-1980. It appears from the Record that there was another meeting of counsel with Judge Reilly and supervisor Caldwell, after the Becks’ Intention to Adopt was filed, and the placement of the child outside Clearfield County was discussed. (N.T. Vol. 1, 92-93)

It was not until March 4, 1980, more than six weeks after David had been removed from their custody, that the Scotts filed a Petition to Adopt David in the Court of Clearfield County. (N.T. Vol. 1, 99) The Clearfield Agency responded on March 25, 1980 with Preliminary Objections to that document, stating its belief that as custodian of David it had the power to withhold consent. (R. 41a)

The dockets in both Clearfield and Venango Counties are silent on the events of the next two months, but testimony of supervisor Caldwell disclosed that hearings on the matter were eventually scheduled, with the Scotts and the agency as the opposing parties (N.T. Vol. 1, 95-97). His impression, however, was that this was to be a court determination of the best interests of the child. He did inform the Becks of this in a relaxed informal way by telephone on May 15,1980. On May 22,1980, he visited the Beck household to review the child’s adjustment. (N.T. Vol. 1, 96) It is clear that he was not alarmed by the situation and encouraged the Becks to feel secure in their proposed adoption.

At no time did the Becks receive official notification of the Clearfield proceedings, and their presence, either as a party or as witnesses, was never requested. They continued to feel secure in their belief that the agency’s custody was unquestionable and that the scheduled hearings were a legal formality, to dispose of earlier legal proceedings.

Several hearings were held in Clearfield County on the matter, on dates that do not appear in this record, but apparently not until after the May 22,' 1980 visit of Mr. Caldwell to the Beck home. Notes of Testimony from these hearings were not incorporated into the present Record. These hearings culminated in an Order of the Court of Common Pleas of Clearfield County, dated July 30, 1980, which directed the Clearfield Agency to return physical custody of David to the Scotts for a further supervisory period of six (6) months, at the end of which the Clearfield Court would make a decision on the Petition for Adoption filed by the Scotts more than five (5) months earlier. (R. 87a)

Representatives of the Clearfield agency attempted to comply with the court order. However, the Becks, at this point in time, had had David for only a few days less than six months themselves, and they were not inclined to be as compliant as the Scotts had been when demand for the child was made. They did not respond to Clearfield Agency’s request, and the agency then filed a Petition for Enforcement Order on August 1, 1980. This was followed by a “Decree” issued on the same date by the Clearfield Court, directing the Becks to forthwith deliver physical custody of David to the agency. This was the first official mention of the Becks to appear in the Clearfield Court records, and although the Becks knew by this time that the child was being actively sought, they were on vacation and did not receive service for some days.

Their attorney, however, now filed their Petition for Adoption, dated August 4, 1980, in Venango County, under the same term and number as their Report of Intention to Adopt, the six months waiting period having elapsed.

On August 5, 1980, counsel for the Scotts filed a Petition with the Clearfield Court to have Donald Mitchell (Mitchell), the Administrator of the Clearfield Agency, and Caldwell held in contempt of court for not complying with the Clear-field Court’s Order of July 30, 1980. On the same date, counsel for the Clearfield Agency filed a Petition with the Venango County Court requesting that court to hold a hearing and to direct the Becks to produce David at the hearing, and to show cause why David should not be turned over to the Clearfield Agency, and to direct the Sheriff of Venango County to locate David and turn him over to the Clearfield Agency, or in the alternative, to the Venango Agency pending determination of the legal issues.

It is an interesting feature of this case that the agency which so opposed the adoption by the Scotts in Clearfield County had at this point, under court order, become a vigorous defender of its right to remove the child again and return him to the original pre-adoptive couple. However, testimony in the Venango hearings clearly shows that the agency remained convinced that the best interests of David lay with the Becks. (N.T. Vol. 1, 100, Vol. II, 54)

On August 11, 1980, the Becks filed yet another Petition, this time for custody of David, and the Venango County Court then scheduled a hearing for September 23, 1980 on the Becks’ petitions as well as the Clearfield agency’s petition. On August 26, 1980, counsel for the Scotts filed a Petition to Quash with Venango County, alleging that Venango County lacked jurisdiction to hear the matter. This was incorporated into the scheduled hearing.

The evidentiary hearing began as scheduled on September 23, 1980; the court stated that it would handle the jurisdictional issue and the custody issue and other related matters, but would not rule on adoption at that time. The court was not able to hear all the testimony on September 23, 1980, and continued the proceeding to October 17, 1980.

On September 25, 1980, the Clearfield Agency filed Preliminary Objections to the Becks’ Petition for Custody, together with an Answer and New Matter. On October 8, 1980, the Clearfield Agency, and the Scotts, requested the Venango court to issue a Writ of Habeas Corpus directed to the Becks. The Venango court agreed to hear argument on all these matters, filed subsequent to the first hearing, on October 17, 1980, the date of the continued hearing.

On December 11, 1980, the Venango Court of Common Pleas, Honorable William E. Breene, President Judge, entered the following Order which is the subject of this appeal:

1. The preliminary objections by Clearfield County Children and Youth Services in the nature of a demurrer to the petition for adoption filed by James L. Beck and Virginia M. Beck are dismissed.
2. The petition of Clearfield County Children and Youth Services for custody is refused.
3. The petition of Toni M. Cherry, attorney for Win-field Scott and Donna Scott, to quash for lack of jurisdiction the petition filed by James L. Beck and Virginia M. Beck, is dismissed.
4. The petition for a writ of habeas corpus filed by Winfield Scott and Donna Scott is dismissed.
5. The petition for custody filed by James L. Beck and Virginia M. Beck is granted and the general custody of David Lynn Sturgeon is awarded to James L. Beck and Virginia M. Beck.
6. Hearing on the petition for adoption of David Lynn Sturgeon filed by James L. Beck and Virginia M. Beck shall be deferred pending disposition of an appeal from this order.

This appeal was filed January 8, 1981, and was argued before a panel of this court on October 15, 1981. We note that on that date David was 3% years old and had been in custody of the Becks for twenty-one months.

DISCUSSION

There are, clearly, a number of issues presented for resolution in this matter, the first being a decision as to the area of law into which the case falls. Despite features of the case which resemble a custody issue, the real matter for determination is adoption, and we shall decide the matter under provisions of the Adoption Act, 1 P.S. § 101 to 603, now repealed, Act of July 24, 1970, P.L. 620, No. 208, and appropriate case law.

The term and number of the matter in Clearfield County, Orphans’ Court Division, was begun with a Voluntary Relinquishment, with a Report of Intent to Adopt, and with a Petition to Adopt. Similarly, in the Venango County Orphans’ Court, the first filings under the court term and number were the Report of Intent to Adopt and the Petition to Adopt.

This matter does not closely resemble the “typical” custody matter, in which relatives of a child are contesting for primary control of the child’s person; understanding, however reluctantly, that the opposing party has and will continue to have certain connections with the child. There are no issues of visitation or support. Under custody law it is possible to effect some legal “division” of the child. Like Solomon, however, we face a situation in which division of a child is impossible. Adoption is what is sought, and the award of custody appealed from is admittedly a temporary stopgap, and cannot be the arbiter of the legal issues involved.

The second issue is whether the court of Venango County had the right to accept this case. That breaks into several subdivisions of jurisdiction, venue, and comity.

As to venue, there can be no doubt that both Clearfield and Venango counties have a legitimate claim to decide the subject matter of this adoption.

Section 202 of the Adoption Act states inter alia that proceedings in relinquishment and adoption may be brought in the county where the parents, the adoptee, or the person who files a Report of Intent to Adopt resides, or in which the custodial agency is located. There is nothing implying that more of the listed requisites for venue makes one county more suitable than another: any one connection is sufficient.

The Commonwealth of Pennsylvania has undoubted jurisdiction to decide matters of adoption within its borders, and within that jurisdiction, the legislature may determine venue. When we give full meaning to the statutory language of § 202, we are obliged to conclude that both Clearfield and Venango Counties had jurisdiction and venue to decide this case.

However, we must now examine the facts and law to determine whether Venango County, coming later into possession of the case, was obliged to defer to the jurisdiction of Clearfield County. For the following reasons, we hold that it was not so obliged.

For the reasons discussed above, we do not feel that the Child Custody Law of this Commonwealth is applicable, and therefore the extensive provisions of that statute pertaining to judicial restraint in the face of court action by a sister state are inapplicable. We note, however, that each of these sets of pre-adoptive parents received this child legitimately from the custodial agency, as is usual. Cases in adoption rarely if ever present problems of child-snatching and forum-shopping among parties who know each other and are vulnerable to each other. It is understandable, therefore, that unlike custody law, adoption law does not provide particular safeguards to prevent such behavior. There was, therefore, no special onus on the Venango County court to defer to Clearfield County.

Still, we must examine the laws of this Commonwealth which concern conflicts among courts. A review of this area is set forth in In re Estate of R.L.L., 487 Pa. 223, 409 A.2d 321 (1979). There, the Supreme Court faced a conflict in which one common pleas court had awarded custody to a mother as against a father, and a second court had thereafter awarded guardianship to the paternal grandparents as against the mother. There, too, the court, upon appeal, concluded that jurisdiction and venue was proper in both lower courts, and examined instead the doctrines of “res judicata with its components, merger and bar”, and “its offshoot, collateral estoppel.” Id., 487 Pa. 228, 409 A.2d at 323.

The court concluded that under the facts of Estate of R.L.L., none of the above precepts applied, as they rest upon the final judgment rule. The binding effect of any judgment is only as to the parties to the action or those in privity with a party.

The facts of the instant case are stronger, for the court in Estate of R.L.L. conceded that the grandparents in the second action might have been considered as being in privity with their son, who was defeated in the first action. Here, however, the Becks were not only not parties in the first action but also had interests that were far from identical with those of the Clearfield Agency; additionally, as the most recent custodians of a very young child, they were knowledgable on issues absolutely pertinent to the interests of that child. The Clearfield court was not in a position to deal finally with David’s interests without the testimony of his recent caretakers and reports of his present development.

There was thus no “final judgment” rendered in Clearfield County from which the doctrines of res judicata or collateral estoppel could be asserted to prevent litigation in Venango County, which named different parties to the action and which incorporated up-to-date testimony as to the child’s progress.

Venango County properly decided to hold hearings in depth on the best interests of the child David whose adoption was properly within its jurisdiction and venue, where the order of its sister county was determined between different parties and was not firmly based upon the child’s best interest.

Yet another issue to be disposed of is the claim of the Clearfield Agency that their placement agreement with the Becks mandated the return of the child to them on demand. This court has expressed surprise before when faced with an agency’s assumption that a contractual agreement as to custody of a child remains binding upon the parties.

In Stapleton v. Dauphin County Child Care Service, 228 Pa.Super. 371, 324 A.2d 562 (1974), a child had been placed with foster parents at age one, after a finding of dependency, and remained in the foster home until age five. The foster parents, like the Becks in this instance, had executed an agreement with the agency, and, unlike the Becks, had been receiving support for the child. That case was decided under the Juvenile Court Act, 11 P.S. § 50-101, which is not applicable to the instant facts, as custody of David was not received by the Clearfield Agency on a finding of dependency but after voluntary relinquishment proceedings.

However, there are legal principles that apply equally in both instances.

It has long been settled in this Commonwealth that a child is not a chattel, to be finally disposed of by agreement among parties. The Stapleton court remarked rather sharply that:

One would expect the [agency] to be aware that such a contract is voidable by the courts when the best interests of the child conflict with it. Restatement, Contracts, § 583. Id., 228 Pa.Super. at 381, 324 A.2d 562.

We reiterate at this time that an agreement of this type is voidable. Persons standing in loco parentis to a child are not bound by such an agreement when they sincerely feel that it no longer serves the child’s best interests. Clearly, where foster parents have been held to the right to petition for custody of a child, pre-adoptive parents cannot have less right to protect the interests of the child entrusted to them as a prospective son or daughter and heir.

The law as to adoption in Pennsylvania is well-settled: a child may be adopted if its parents have had their parental rights terminated, either by consent or involuntarily. Once this prior adjudication has been made and the rights of the natural parents are no more, the best interest of the child becomes the criterion by which a court must be guided. See e.g. In re Adoption of Jacono, 426 Pa. 98, 231 A.2d 295 (1967).

In the instant action, the natural parents voluntarily relinquished their rights in the child, and custody was legally in the agency before either set of adoptive parents filed their Intent to Adopt. From the moment that the State, in the guise of the court and the agency, assumed the custody of this child, it also assumed an obligation to exercise its powers in David’s best interests. This was the sole standard for any decision on his adoption, and it is one that should be applied on full facts elicited during hearings in which all pertinent facts are placed before the court.

The Venango Court was therefore correct in scheduling hearings before permitting David’s removal from the Beck household, on the Beck’s petition stating that such a hearing was in David’s best interests, despite the opposition of the Clearfield agency.

This is not to say that the agency does not have important powers vis a vis a child entrusted to its legal custody. The Adoption Act carefully provides for a six month waiting period before finalization of an adoption, in part for the purpose of monitoring the adoptive home. Section 335 specifically demands a court-ordered investigation after the filing of any Report of Intent to Adopt.

Section 321 gives the agency powers of consent to marriage, military service, and major surgery and to exercise authority “as a natural parent.” Section 401 mandates filing of a Report of Intermediary [an agency, where that body has custody] following the filing of Intention to Adopt, and § 411(4) lists the consent of a custodial agency as required for final adoption.

Obviously the legislature intended that the duties and the powers of custodial agencies be taken seriously during the adoption process. The provisions contemplate that occasionally initial placements may not develop well and that monitoring by an agency is necessary to assure the best interests of the child. Where such a situation does come to light, there is an obligation on the court and the agency to act, but to do so in an orderly and informed manner. Neither the Clearfield court nor the Clearfield agency handled the instant matter to assure the best interests of the child.

Apparently informal conferences including the court, the agency, and counsel for the Scotts were held after the first removal of the child, but these are shadowy reflections in the testimony on the Record, and we have no assurance that any balancing was made as to the probable effects of uprooting a child already slow to develop as opposed to the effects likely to result from poor parenting. Nor do we know what support systems might have been mobilized to train the pre-adoptive parents, who were never given their chance to explain their interpretations of hearsay evidence or to confront adverse witnesses. The agency’s appraisal of the situation might or might not have prevailed had the matter been timely argued.

We can never know that now. We do know that David’s future under present conditions is best served by the stability of his present home, and that must be the guide for this court. At the risk of being tedious, we reiterate that the nature of the review mandated at any hearing on adoption is solely that of the best interest of the child who is the focus of the action. Again, we have no record of notes of testimony to review from the Clearfield hearing, but it is an undisputed fact that the new pre-adoptive parents were not served, did not participate, and that David’s present circumstances and development were at most mere hearsay in that court proceeding. The order that resulted from the Clear-field hearings demanded David’s return “forthwith” from his home of the last six months. Not a single line of the order concerns itself with the way in which return would benefit the child.

We must conclude that the Clearfield court at this point accorded the Scotts rights nearly commensurate with those given natural parents before a finding of dependency. Although we sympathize with the shock and confusion of the pre-adoptive parents, as indeed the lower court must have done, they were not entitled at any time to the protections afforded a natural parent and could not acquire such protections prior to final adoption.

The state has a great interest in preserving the family unit, and there is a presumption that the child’s interest, where feasible, is best served by remaining in that family unit. Once that link is severed—here, by voluntary relinquishment—preservation of subsequent family units must take second place to the best interest of the child. The Order of July, 1980 would be quite proper as a response to the legal necessity of intervention by the state to protect a child whose natural parents were too immature, untrained, or ill to give proper parenting. As a decision focused on David’s best interests, however, it is fatally defective.

Thus, when the Becks turned to the court of their own county alleging that David’s best interests lay in his adoption by them, the Venango County Court was correct in its decision to accept the case and to base its conclusions on full participation of all interested parties with a view to discovering the best interests of the child David. There was jurisdiction and venue in that court; there were no considerations of res judicata or collateral estoppel to impede its decision because of a final judgment by a sister court; the law of adoption puts no especial onus upon the courts of common pleas to decline jurisdiction such as is found in the law of custody; the claim of David’s pre-adoptive parents that his best interests lay in adoption by them presented a valid issue for consideration. The Venango court was well within its discretion in accepting and determining the case.

As to the outcome of the case on the merits, we find that the opinion of the Venango Court paid careful attention to David’s interests, first placing the Scotts and the Becks on “equal footing.” The summation of the testimony was thorough and accurate, and the choice in favor of the Becks was fairly and reasonably arrived at, with David’s needs always the primary focus.

Our review of that part of the Opinion will be brief, but we note that the court weighed the opinions of the staff of both the Clearfield and Venango agencies as to the relative parenting abilities of the two couples, and the record fully supports the trial judge’s conclusion that the Becks were superior in this regard. Also seriously considered was the testimony of a clinical psychologist who found that David was already a year behind his chronological age in development and made the informed prediction that any move, even to a perfect new environment, would retard the child’s development another four to six months. Minor factors were Mrs. Beck’s full time presence in the home as opposed to the swing-shift working schedules of the Scotts, and the advantage of an older brother in the Beck household.

Review of the record amply supports the decision of the Venango Court. We affirm all of its orders re David’s interests, and we remand the case back solely for the purpose of concluding the final adoption of the child David Lynn Sturgeon by James and Virginia Beck. We do not retain jurisdiction.

WIEAND, J., files dissenting opinion.

WIEAND, Judge,

dissenting:

This is a difficult and complex case. The decision of the majority has placed commendable emphasis upon the need to achieve promptly that stability which is promised by allowing the child to remain with the Becks in Venango County. I share the majority’s concern for the best interests of the child and am almost persuaded to concur in the majority’s decision.

However, the majority has overlooked the fact that the Court of Common Pleas of Venango County lacked jurisdiction to award custody or decree adoption of this child. David Lynn Sturgeon is a ward of the Court of Common Pleas of Clearfield County. It was the Court in Clearfield County which received and determined the natural parents’ petition to relinquish the child; and it was the Clearfield County Court which, by court order, placed custody of the child in the Clearfield County Children and Youth Services. This agency stood in loco parentis to the child and was responsible for his welfare. The child’s legal residence, therefore, followed the agency and has always been in Clearfield County. His legal residence was not changed to Venango County merely because the Clearfield agency placed him temporarily in the care of persons who resided in Venango County. Under these circumstances the Venango County Court could not properly overrule the Clearfield County court order, remove custody from the Children and Youth Services in Clearfield County and, without its consent, award custody for purposes of adoption to temporary, foster parents in Venango County. See Johnson Adoption Case, 399 Pa. 624, 161 A.2d 358 (1960). See also Commonwealth Child Custody Act of April 28, 1978, P.L. 108, No. 47, 11 P.S. § 2401 et seq.

Accordingly, I would reverse the order of the Court of Common Pleas of Venango County and return custody of David Lynn Sturgeon to the Clearfield County Children and Youth Services. I am confident that the Court of Common Pleas of Clearfield County will, in its determination, be as equally concerned for the best interests of David Lynn Sturgeon as this Court and the Court of Common Pleas of Venango County.

      . We note that this further supervisory period of six months was essentially what was requested in the January 15, 1980 Report of Intermediary filed by the agency shortly before the decision to remove David from the Scott household.

      . The final order of court appealed from in this case is dated December 11, 1980. Section 3 of the Act of 1980, Oct. 15, P.L. 934, No. 163 provides that proceedings in progress might be amended after January 1, 1981 to conform to the new act, but otherwise should be concluded under the provisions at 1 P.S. § 101 to 603. This action was never amended and therefore must be analyzed under former law.

      . Now repealed and re-enacted as part of the Uniform Child Custody Jurisdiction Act of October 5, 1980, P.L. 693, No. 142, § 201(a), 42 Pa.C.S. §§ 5341-5366.


author: JOHNSON, Judge: HESTER, Judge,

text:
    446 A.2d 255
    JOHN GOFFREDO AND SONS, INC. v. S. M. G. CORPORATION, and George E. Yurchinson, The Hanover Insurance Company and John Goffredo and Sons, Inc. Appeal of S. M. G. CORPORATION.
    Superior Court of Pennsylvania.
    Argued March 31, 1981.
    Filed March 5, 1982.
    Reargument Denied June 21, 1982.
    Petition for Allowance of Appeal Denied Dec. 1, 1982.

      Marvin Comisky, Philadelphia, for appellant.
    Domenick P. Sbrocchi, Bangor, for appellees.
    Before CERCONE, President Judge, and HESTER and JOHNSON, JJ.
   JOHNSON, Judge:

This is an appeal from a judgment entered after the denial of exceptions in a nonjury trial.

Appellee (hereinafter referred to as “Contractor”) filed a complaint in assumpsit against Appellant (hereinafter referred to as “Owner”), alleging that Owner owed Contractor the sum of $299,505.17 (later amended to $310,576.10) for construction of a motel and banquet center. The aforesaid amount was allegedly owing in addition to the amount of $1,460,999.90 that Owner had already paid to Contractor. The trial court held that venue was in Northampton County, which was the place where the written contract of December 23, 1968, had been executed.

After a non jury trial that extended over a period of one month, post-trial briefs and arguments were presented to the trial judge. The trial judge died before rendering a decision, and the parties agreed that the court could make a decision based on the record. Approximately one and one-half years after post-trial arguments, the assigned judge filed a decision and verdict granting Contractor the amount of $277,169.06, with interest on $266,098.23 from February 19, 1971.

Owner’s exceptions were dismissed by the court en banc, and judgment was entered on the verdict. Owner appeals from the aforesaid judgment. For the following reasons, we reverse and remand for a new trial.

Because of our decision in this case, we shall discuss only one of the twelve (12) issues that Owner presents for our consideration. Owner questions whether or not the trial judge erred when he allowed Contractor, after the statute of limitations had run, to amend his complaint to assert the existence of a subsequent oral agreement.

Contractor’s complaint alleged that he and Owner contracted on December 23, 1968, to construct the motel and banquet center for the amount of $1,510,000.00. This amount consisted of the guaranteed maximum cost of $1,100,000.00 plus Owner’s requested change orders. The complaint further alleged that the amount of $1,510,000.00 was increased by change orders to a total cost of $1,759,-505.17. Article 6 of the contract of December 23, 1968, provided that the guaranteed maximum cost designated in the contract could be increased or decreased as provided in Article 8 of the contract. Article 8 stated that the “Owner may make Changes in the Work in accordance with Article 12 of the General Conditions. .. . ” Article 12 designated both that the Owner’s changes must be made by utilizing change orders and that such changes do not invalidate the contract. Thus, the change orders did not constitute a waiver of the guaranteed maximum cost provision.

In his motion to amend the complaint, Contractor asserted that the contract of December 23, 1968, had been modified by a subsequent oral agreement between himself and Owner that waived the guaranteed maximum cost provision of the original contract.

Although the right to amend pleadings is to be construed liberally, amendments may not be made if they introduce a new cause of action after the statute of limitations has run. Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 325, 319 A.2d 914, 918 (1974); School District of Shenandoah v. City of Philadelphia, 367 Pa. 180, 191, 79 A.2d 433, 438 (1951); Junk v. East End Fire Department, 262 Pa.Super.Ct. 473, 490, 396 A.2d 1269, 1277 (1978).

The Supreme Court of Pennsylvania has not adopted a comprehensive definition of the term, “cause of action,” but has suggested that the term acquires different meanings in different contexts. Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. at 325 n.7, 319 A.2d at 918 n.7. In the context of amendment of pleadings, we have defined a new cause of action as a “different theory” or “basis for recovery.” See Junk v. East End Fire Department, 262 Pa.Super.Ct. at 490, 396 A.2d at 1277; West Penn Power Co. v. Bethlehem Steel Corp., 236 Pa.Super.Ct. 413, 433, 348 A.2d 144, 156 (1975).

In Junk, the lower court held that a proposed amendment from negligence in operation of a vehicle to negligence in choice of a road would constitute a new cause of action. Since the statute of limitations had run, we affirmed the lower court’s denial of the proposed amendment. 262 Pa.Super.Ct. at 491, 396 A.2d at 1277.

In West Penn Power, the complaint had averred that a specified delivery schedule, to which the parties had allegedly agreed, represented the basis for damages. On the last day of an eight-week trial, the plaintiff proposed an amendment alleging that the time for shipment would have been a “reasonable time” as defined in section 2-309(1) of the Uniform Commercial Code. Even though the statute of limitations had not run, we affirmed the lower court’s denial of the proposed amendment. To change the theory for recovery at the end of trial would have prejudiced the defendant. 236 Pa.Super.Ct. at 434, 348 A.2d at 156.

The amendment in the instant case changed the theory for recovery from the written contract of December 23, 1968, to a subsequent oral agreement that allegedly modified the pleaded contract by waiving a major clause—the guaranteed maximum cost provision. Although the aforesaid amendment was made on the first day of trial, the statute of limitations had run. Thus the motion to amend should have been denied.

The verdict against the Owner was based upon the court’s erroneous conclusion of law, stated in its Decision of January 2, 1980, that, “The contract between contractor and owner ... is a cost plus contract without guaranteed maximum.” Since both the testimony at trial and the resulting verdict were based upon the amendment to the complaint, which alleged the oral agreement waiving the guaranteed maximum clause, a new trial must be granted.

For the foregoing reasons, the order of July 9, 1980, is reversed; and the case is remanded for a new trial.

HESTER, J., files a dissenting statement.

HESTER, Judge,

dissenting:

I respectfully dissent. I would affirm on the adjudication, Opinion and Order of Judge Williams of the court below.