author: MONTGOMERY, Judge: POPOVICH, Judge,

text:
    571 A.2d 1055
    Homer M. WAGNER and Robert N. Wagner, v. ESTATE OF Ansley C. RUMMEL, Francis Crays and Agnes Wells, Administrators, Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 18, 1989.
    Filed Feb. 20, 1990.
    Reargument Denied March 28, 1990.

      James G. Callas, Kittanning, for appellants.
    Blair F. Green, Kittanning, for appellees.
    Before McEWEN, POPOVICH and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

Defendant-Appellants filed the instant appeal from an Order of the trial court which granted the Plaintiff-Appellees’ request for specific performance with regard to an agreement providing for the sale of land in Indiana County. The Defendant-Appellants include the Estate of Ansley C. Rummel, deceased, and his daughters, Frances Crays and Agnes Wells, who serve as Administrators of his Estate. The agreement in issue, which will be more fully described below, provided that the Plaintiff-Appellees could purchase some 16 acres of land for the sum of $550.00. After a trial, the Court issued a Decree Nisi, ordering the Appellants to convey the property to the Appellees upon tender of $550.00 by the Appellees. Exceptions to the Decree Nisi were denied by the trial court, and a final order entered thereon. This appeal arises from that Order.

A detailed review of the pleadings filed by the parties is appropriate. On June 26,1986, the Plaintiff-Appellees filed a Complaint for Specific Performance, consisting of eight numbered paragraphs. After identifying the parties, the Complaint recited that the Decedent, Ansley C. Rummel, had owned 16 acres of land in Washington Township, Indiana County. The description of the property was set forth. The Complaint further stated that on March 1, 1979, the Decedent had entered into an agreement with the Plaintiffs wherein he leased the land to them for the purpose of raising and marketing Christmas trees. The Complaint also declared that in the lease agreement, the Decedent had given the Plaintiffs the right to purchase the land upon his death for the total sum of $550.00. In addition, the Complaint stated that the agreement provided that if she survived the Decedent, one Alice Seger should continue to enjoy the right to live in a house on the property until her death, or until she released such right in writing. It was noted in the Complaint that Alice Seger predeceased Mr. Rummel. The Complaint then recited that the Estate and the Administrators had been notified of the Plaintiffs’ request to exercise the option to purchase the property but that the Appellants were not willing to honor the purported option. Finally, the Complaint stated that the Plaintiffs had handled all of the business affairs and other matters of Mr. Rummel for many years prior to his death, and that Mr. Rummel had inserted the amount of $550.00 in the paragraph of the lease agreement which gave the Plaintiffs the option to purchase the property. A copy of the agreement was attached as an exhibit to the Complaint.

On July 21, 1986, the Defendant-Appellants filed an Answer to the Complaint, with New Matter. In that document, responding paragraph by paragraph, they admitted most of the allegations in the Complaint. However, they denied the allegation that the sale price for the property was $550.00. In their Answer, the Appellants asserted that the said sum was written in by a person other than the Decedent. Further, the Appellants maintained that the Plaintiffs did not handle the business affairs of the Decedent prior to his death. In their New Matter, consisting of Paragraphs Nos. 9 and 10, the Appellants averred that the Decedent did not comprehend fully the understanding set forth in the agreement, and that he never appeared before a notary public to have his signature acknowledged. They urged that the court interpret the sum in the Agreement to be $55,000.00, rather than $550.00. All of that was expressed in Paragraph No. 9 under New Matter. In Paragraph No. 10, the Defendants asserted that upon the receipt of $55,000.00, they would execute and deliver a deed to the Plaintiffs.

The Plaintiffs, on August 18, 1986, filed a Reply to New Matter. They denied Paragraph No. 9 of the Defendants’ New Matter, and averred that the Decedent did not see or talk to his daughters, the Defendant Administrators, for approximately 30 years. Further, it was asserted that the Decedent was not on speaking terms with them nor were they in the area when the transaction took place. Paragraph No. 9 of the Plaintiffs’ Reply to New Matter further declared that the Decedent understood the amount and filled in the amount himself at the time he executed the agreement, that he appeared before a notary public, and that the price of $550.00 was correct and not intended to be more than that. Finally, still in Paragraph No. 9, the Plaintiffs asserted that the Decedent at various other times conveyed property to other persons for very small amounts of money. Finally, in Paragraph No. 10, the Plaintiffs denied the allegations of Paragraph No. 10 of the Defendants’ New Matter, and also averred that the deed should be executed and delivered to them upon receipt by the Defendants of the sum of $550.00.

On September 23, 1986, the Defendants filed another document entitled “New Matter”. This document included two additional paragraphs. In Paragraph No. 11, the Defendants asserted that the agreement for the sale of property was obtained by fraud, misrepresentation and/or undue influence on the part of the Plaintiffs. In Paragraph No. 12, the Defendants maintained that the Agreement had never been signed by the Decedent.

The Plaintiffs responded on October 9, 1986, by filing Preliminary Objections to the Defendants’ additional New Matter which had been filed on September 23, 1986. In these Preliminary Objections, the Plaintiffs maintained that Paragraph No. 11, which alleged fraud, misrepresentation and undue influence, had not been averred with sufficient particularity and specificity. With regard to Paragraph No. 12, the Plaintiffs pointed out that after the Defendants had alleged fraud in securing the Agreement, they then maintained that the agreement in question was never signed by the Decedent. The Plaintiffs argued that such affirmative defenses were improper because they were inconsistent.

On May 18, 1987, after considering the Plaintiffs’ Preliminary Objections to the additional New Matter, the trial court issued an Opinion and Order. The court ruled that the averments of fraud, misrepresentation, and undue influence contained in Paragraph No. 11 of the additional New Matter had to be amended to state a more specific claim. The Court found the Plaintiffs’ second objection, regarding the alleged inconsistency between Paragraph Nos. 11 and 12 of the additional New Matter, to be without merit. The court ruled that such inconsistent defenses could be asserted in the alternative.

On June 8, 1987, the Defendants filed a pleading entitled Amended New Matter. This document contained only one paragraph, which was described as “Amended Paragraph 11”. It declared that the sale figure for the property was placed in the agreement after Plaintiff Robert N. Wagner had obtained the signature of the Decedent on the document. Further, it alleged that at the time of the Agreement, the Plaintiff had knowledge that the “defendant” (presumably a reference to the Decedent) did not know how to write a sum of money “... over and above $10.00.”

On June 22, 1987, the Plaintiffs filed a Reply to New Matter, responding to Amended Paragraph No. 11 of the Defendants’ additional New Matter. The Plaintiffs denied the allegations by Defendants, and also averred that the Decedent had placed the figure of $550.00 in the agreement as the option purchase price, and that he did know how to write sums of money over and above $10.00.

The trial commenced on May 13, 1988. On July 20, 1988, the court issued a Decree Nisi, ordering that the Defendants, as Administrators of the Estate of Mr. Rummel, prepare, execute, and deliver to the Plaintiffs a deed for the property, upon payment to them of $550.00 by the Plaintiffs.

On August 2, 1988, the Defendants filed Exceptions to the Order, contending that if the agreement would be enforced it would be unconscionable. In a Reply to the Exceptions, the Plaintiffs denied that the agreement was unconscionable, and also pointed out that the issué of unconscionability had not been raised by the Plaintiffs in pleadings or at the trial. Subsequently, the trial court issued an Opinion and Order denying the Defendants’ Exceptions. The Opinion explained that the issue of unconscionability had never been raised by the Defendants as a defense through preliminary objections, answer, or reply. The trial court concluded that the issue of unconscionability had to be considered to have been waived, pursuant to Pa.R.C.P. 1032. Further, the trial judge determined that unconscionability is similar to other defenses such as estoppel and laches, which are required to be raised as new matter pursuant to Pa.R.C.P. 1030. Thus, the trial court dismissed the Exceptions.

On the instant appeal, the Appellants continue to maintain that the agreement in issue could not properly be enforced by the trial court because it was unconscionable. Further, the Appellants contend that unconscionability is a rule of law which does not have to be pleaded in order to be raised. It is evident that the disposition of this appeal requires that we review the rules applicable to a trial court’s consideration of a request that it order specific performance, and also that we examined the doctrine of unconscionability.

A number of guidelines are well-established with regard to requests that a court order the specific performance of a contractual obligation. A decree of specific performance involves the exercise of the equity power and discretion of the court. Duc v. Struckus, 345 Pa. 65, 26 A.2d 897 (1942). The discretion of the Chancellor must be exercised in a specific performance case in accordance with accepted judicial principles. DiPompeo v. Preston, 385 Pa. 512, 123 A.2d 671 (1956). A decree of specific performance of a contract is not a right, but is a matter of grace, and will not be granted unless the party seeking such relief is clearly entitled to it, and the Chancellor believes justice requires such a decree. Mrahunec v. Fausti, 385 Pa. 64, 121 A.2d 878 (1956). In decreeing or refusing to require specific performance of a contract to convey real property, a great deal depends upon the wise exercise of judicial discretion, in light of all circumstances appearing in the transaction. Quarture v. C.P. Mayer Brick Co., 363 Pa. 349, 69 A.2d 422 (1949). The court of equity should not order specific performance where it appears that hardship or injustice will result to either of the parties. Snyder v. Bowen, 359 Pa.Super. 47, 518 A.2d 558 (1986); Barr v. Deiter, 190 Pa.Super. 454, 154 A.2d 290 (1959). Moreover, specific performance may only be granted where no adequate remedy at law exists. Cimina v. Bronich, 517 Pa. 378, 537 A.2d 1355 (1988).

The trial court in this case made it clear that it did not consider the doctrine of unconscionability because the Defendants failed to affirmatively plead it in preliminary objections or in their Answer or New Matter. Unconscionability is a defensive contractual remedy which serves to relieve a party from an unfair contract or unfair provision of a contract. This basic explanation of the doctrine was recognized by our Court in Germantown Manufacturing Co. v. Rawlinson, 341 Pa.Super. 42, 491 A.2d 138 (1985), a decision which included an excellent, and well-reasoned discussion of unconscionability. One of the most oft-cited statements of the meaning of the doctrine was provided by the United States Court of Appeals for the District of Columbia Circuit in Williams v. Walker-Thomas Furniture Company, 350 F.2d 445, 449 (D.C.Cir.1965): “Unconscionability has generally been recognized to include an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.” This explanation was cited with approval by our own Supreme Court in Witmer v. Exxon Corp., 495 Pa. 540, 434 A.2d 1222 (1981). In Germantown Manufacturing Co. v. Rawlinson, supra, our Court also noted with approval the pronouncement of the Supreme Court of New Jersey, in Kugler v. Romain, 58 N.J. 522, 544, 279 A.2d 640, 642 (1971), regarding the doctrine: “The standard of conduct contemplated by the unconscionability clause is good faith, honesty in fact, and observance of fair dealing.”

As discussed earlier, the trial court in this case explained that it did not consider the issue of unconscionability because it had not been affirmatively pleaded by the Defendants. A recognition of the meaning of the doctrine, and consideration of its proper application, leads us to the conclusion that the trial court failed to adhere to proper standards of equity in its consideration of Plaintiffs’ request for an order compelling specific performance. The Chancellor had a duty to examine whether hardship or injustice would result to the Defendants if the Plaintiffs’ request for specific performance were granted. As we have discussed, the doctrine of unconscionability requires some measure by the court of the fairness of the contract in issue, and an evaluation of whether it was unreasonably favorable to the Plaintiffs. Such concepts could not be ignored in the proper exercise of the trial court’s equity responsibilities in this case, whether or not the Defendants specifically raised unconscionability as an affirmative defense in their pleadings. Quite simply, the Chancellor was not free to ignore issues of fairness and contractual injustice.

In Germantown Manufacturing Co. v. Rawlinson, supra, the appellant sought the reversal of a trial court order which granted the appellee’s petition to open a judgment which had been entered by confession. In affirming the trial court, our Court pointed out that such a petition appeals to the equitable powers of the court. Moreover, and highly relevant to the instant case, we found the doctrine of unconscionability to be applicable, even though the appellee never specifically identified that defense in her argument. The same rationale is applicable in this case.

The record developed in the trial court in this case makes it impossible to ignore significant concerns regarding unconscionability. The only evidence regarding the value of the property was testimony that it was worth $55,000.00 to $60,000.00, roughly 100 times what the Plaintiffs sought to pay for it. Even without such evidence, a price of $550.00 for 16 acres of land, with a home on it, raises immediate questions of fairness, and whether such a price was unreasonably favorable to the Plaintiffs. The agreement had been prepared by the Plaintiffs, who admitted that they handled some business affairs for Mr. Rummel. There was significant testimony in the record to indicate he was unsophisticated at best, if not illiterate, regarding business matters and legal documents. He had to have others make out checks for him and handle other similar tasks. He had little or not schooling. Although the Plaintiffs maintained, in their pleadings, that the Decedent’s daughters, Frances Crays and Agnes Wells, had no contact with him for 30 years, the evidence at trial was uncontradicted that they saw him and attended to his needs with great frequency. They visited him weekly, cleaned his home for him, and handled his personal and business needs. Further, although the Plaintiffs alleged in their pleadings that Mr. Rummel frequently sold property at less than full value, no evidence of such prior conduct was educed. It appears that the trial court ignored all of these factors, which should have been considered in weighing the fairness and justice of the Plaintiffs' request for specific performance. Rather, the Opinion of the trial court indicates its concern was limited to the issues of whether the Decedent signed the document and inserted the $550.00 figure.

In light of these conclusions, it is apparent that we must vacate the Order of the trial court and remand this case to that court for further consideration, with due regard to the doctrine of unconscionability. In fairness to the parties, the court will be required to accept further testimony on the issue of unconscionability.

In remanding the case, we would be remiss if we did not discuss one other factor which should also be addressed by the trial court. We have already pointed out that specific performance of a contract should be denied if there is an adequate remedy at law available. From our review of the record, it appears that the Plaintiffs may have a right to seek a money judgment. In such proceedings at law, questions of unconscionability could also be raised as a defense. Moreover, evidence from competent appraisers and other experts concerning the value of the property could be considered, if appropriate, and the true value of the property could be determined.

However, the resolution of all of these issues and factual questions is appropriately vested in the trial court. A remand of this case will give the Chancellor an opportunity, to evaluate all of the pertinent factors, applying appropriate equitable principles.

The Order of the trial court is vacated, and this case is remanded for further proceedings, consistent with this Opinion. Jurisdiction is relinquished.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

I must dissent from the opinion of the majority. First, I would agree with the learned trial judge that unconscionability must be pleaded as an affirmative defense. Second, assuming that unconscionability need not be pleaded affirmatively, I find that appellants failed to proffer sufficient evidence to support the majority’s conclusion that the agreement was unconscionable.

The majority agrees with appellants that unconscionability is not a defense that needs to be pleaded affirmatively. However, the Pa.R.C.P. 1030 provides:

All affirmative defenses including but not limited to the defenses of accord and satisfaction, arbitration and award, assumption of the risk, consent, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fair comment, fraud, illegality, immunity from suit, impossibility of performance, justification, laches, license, payment, privilege, release, res judicata, statute of frauds, statute of limitations, truth and waiver shall be pleaded in a responsive pleading under the heading “New Matter”. A party may set forth as a new matter any other material facts which are not merely denials of the averments of the preceding pleading, (emphasis added).

Pursuant to Pa.R.C.P. 1032, generally, “[a] party waives all defenses and objections which he does not present either by preliminary objection, answer or reply.”

Rule 1030 does not limit its application to those defenses therein specifically enumerated. Rather, the rule, via the phase “but not limited to”, allows for the inclusion of additional defenses. See e.g., (Fredricks v. Hamm, 45 D.C.2d 687, 104 P.L.J. 298 (1968) (unconscionability is an affirmative defense which must be pleaded); Iorfida v. Mary Robert Realty Co., Inc., 372 Pa.Super. 170, 539 A.2d 383 (1988) (in context of easement actions abandonment is an affirmative defense which must be pleaded). Rule 1030 should apply not only to those equity defenses specifically included in the rule, e.g. estoppel and laches, but also to equity defenses not specifically enumerated, such as unconscionability.

Herein, the majority concluded that unconscionability need not be specifically pleaded. In so doing, the majority relied in part upon the example of Germantown Mfg. Co. v. Rawlinson, supra, stating that “[In Germantown Mfg.,'] we found the doctrine of unconscionability to be applicable, even though the appellee never specifically identified that defense in her argument.” However, while the appellee in Germantown Mfg. did not argue the defense of unconscionability by name, she did aver in her pleadings the elements of unconscionability. 491 A.2d at 145. Thus, appellee did comply with the spirit, if not the letter, of Rule 1030. Instantly, it is undisputed , that appellants did not plead any facts even remotely related to the doctrine of unconscionability and did not raise the issue of unconscionability until post-verdict motions. Moreover, in Germantown Mfg., the discussion of unconscionability is simply dicta as the court therein had already determined that the contract was void because of fraudulent misrepresentation, material misrepresentation, fraud in the factum and duress.

Lastly, assuming the issue of unconscionability was properly before the lower court via appellants’ post-verdict motions, I am convinced that appellants failed to present sufficient evidence to demonstrate unconscionability. First, it is undisputed on appeal that the court below, based upon credible expert testimony, found that the decedent signed the contract and filled in the purchase price.

Second, appellants failed to proffer any credible evidence of the value of the property. The only evidence of the property’s value was the opinion of Agnes Wells, co-administratrix of the estate and beneficiary under the will, who indicated she believed the property was worth $55,000 to $60,000. Cognizant of the rule that owners of property are considered experts when testifying as to the property’s value, Semasek v. Semaselc, 509 Pa. 282, 502 A.2d 109, 112 (1985), I would hold that such evidence of value was inadmissible and the trial court abused its discretion by allowing its admission. Agnes Wells was not the owner of the property, nor does the record show that she possessed any attributes which would qualify her as an expert on real estate valuation.

Third, the majority failed to consider the long standing relationship of the appellees and the decedent. The record indicates that the appellees were leasing the property in dispute as early as 1962, and a prior written lease for the property, dated January 80, 1965, appears of record. The appellees have used the land as a Christmas tree farm continuously to the present. The appellees aided the decedent in his business affairs and money management, including his taxes. Significantly, the decedent’s brother, James Ralph Rummel, testified that the decedent, at one time, was married to the mother of the appellees. Further, the majority neglected to consider a very important aspect of the lease option contract, that being the clause which provided that, if Alice Seger survived the decedent, she would be allowed to reside on the property free of charge until her death.

The majority seems to focus upon the low purchase price of $550 compared to size of the parcel, 16 acres (residence included). One needs only to review the decision in Snow v. Corsica Construction Co., Inc., 459 Pa. 528, 329 A.2d 887 (1974), to recognize the error in the majority’s reasoning. Therein, our Supreme Court stated:

Inadequacy of consideration is not ground for refusing to decree specific performance of a contract to convey real estate, unless there is evidence of fraud or unfairness in the transaction sufficient to make it inequitable to compel performance: Harris v. Tyson, 24 Pa. 347, 360; Graham v. Pancoast, 30 Pa. 89, 97; Cunning's App. 67 Pa. 404; Bowers v. Bennethum, 133 Pa. 306, 19 A. 624; Jackson’s Est. 203 Pa. 33, 52 A. 125 [ (1902) ]. ‘Inadequacy of price, improvidence, surprise, and mere hardship, none of these, nor all combined, furnish an adequate reason for a judicial rescission of a contract. For such action something more is demanded, — such as fraud, mistake or illegality.’ Frey’s Est. 223 Pa. 61, 65, 72 A. 317, 318 [(1909)]. Although relief in equity is a matter of grace only and not of right, and rests in the discretion of the court, to be exercised upon a consideration of all the circumstances of the case, it does not follow that a decree for specific performance must be entered in all cases where the agreement is legally sound and the price adequate, but if the transaction be inequitable or unjust in it self or rendered so by matters subsequently occurring, specific performance may be denied and the parties turried over to their remedy in damages (Rennyson v. Rozell, 106 Pa. 407, 412), and, while no rule applicable to all cases can be announced, it may be said that specific relief will be granted if apparent that, in view of all the circumstances, it will subserve the ends of justice, and will be withheld where, on a like view, it appears hardship or injustice will result to either of the parties. Rennyson v. Rozell, supra; Spotts v. Eisenhauer, 31 Pa.Super. 89, 93. Welsh v. Ford, 282 Pa. 96, 99, 127 A. 431, 432 (1925). See also Payne v. Clark, 409 Pa. 557, 560, 187 A.2d 769, 771 (1963); Oreovecz v. Mexico, 382 Pa. 56, 59, 114 A.2d 126, 128 (1955); Rupniewski v. Miazga, 299 Pa. 190, 192, 149 A. 193, 194-195 (1930).

Snow, 329 A.2d at 888-889.

Thus, even assuming that the evidence of property’s fair market value was properly before the lower court, specific performance cannot be denied absent evidence of fraud, mistake or illegality. No such evidence was presented instantly. As stated by the trial court, “the defense clearly did not offer any credible testimony to show that the agreement was not executed by the decedent, the blanks filled in by him or that he did not understand the agreement.” Opinion and Order of Court filed July 20, 1988. Accordingly, I can find no reason to deny appellees specific performance of this contract for the purchase of real property.

      . This matter was originally appealed to the Commonwealth Court, which transferred it to our Court.

      . Rule 1030 was last amended on December 16, 1983, effective July 1, 1984. In Germantown Mfg. Co. v. Rawlinson, 341 Pa.Super. 42, 491 A.2d 138, 145 n. 4 (March 29, 1985), we noted that "[t]he defense of unconscionability does not yet have the same long-standing historical legitimacy enjoyed by other methods of avoiding a contract such as mistake, duress, fraud and misrepresentation. It is also not yet as clearly defined as these traditional defenses, (citations omitted)." Thus, the reason that unconscionability is not specifically enumerated in Rule 1030 may be traced to the fact that the defense of unconscionability, at the time of last amendment to the rule, had yet to achieve the legitimacy of more traditional defenses.

      . Significantly, appellants’ entire defense was that the purchase price for the property was written in the agreement after the decedent had signed the document because the decedent did not know how to write a sum of money "... over and above $10.00."


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    571 A.2d 1062
    COMMONWEALTH of Pennsylvania v. Stacey ZIMMERMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 19, 1990.
    Filed March 2, 1990.

      Joseph P. Green, Jr., West Chester, for appellant. James Staerk, Asst. Dist. Atty., Norristown, for Com.
    Before OLSZEWSKI, KELLY and JOHNSON, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence entered following appellant’s conviction for theft by receiving stolen property and forgery.

The facts of this case, as summarized by the trial court, are as follows:

Sometime during the last week of June, 1987 Sears Mortgage Corporation check number 82102 was taken from the desk of Susan Harmon who was employed by Sears Mortgage Corporation. During that time, [appellant] was employed by Priority One Transport, a courier service used by Sears Mortgage Corporation, and [appellant] had extensive access to Mrs. Harmon’s desk.
On July 2, 1987 the [appellant] entered the Provident National Bank in Lower Merion Township, Montgomery County, and opened a savings account in the name of Barry J. Allen as well as signed up for a Money Access Card (MAC) to access this account. [Appellant] presented a check to open the savings account in the amount of $44,605.00. The check was number 82102, drawn on Sears Mortgage Corporation and made out to Barry J. Allen. Paul McBroom, a Provident employee, helped [appellant] open this account and testified at trial that [appellant] endorsed the check in his presence, signing the name Barry J. Allen, and signed several other documents needed to open the account. [Appellant] provided the address of 1220 Valley Forge Road, Valley Forge, Pennsylvania, which is the address of Valley Forge Mail Boxes and is a “maildrop” business in Upper Merion Township.
In the last week of June, 1987, [appellant] entered Valley Forge Mail Boxes and inquired regarding the possibility of renting a mailbox. The owner, Eva Johnson, explained the procedure to [appellant] who then departed. On July 6, 1987 [appellant] returned and opened a mailbox in the name of Barry J. Allen. July 6, 1987 was a Monday and was the first business day following a three day weekend to observe Independence Day. The last business day prior to July 6 was Thursday, July 2.
Both Eva Johnson and Paul McBroom testified that they had sufficient opportunity to observe [appellant] and were able to select [appellant’s] picture from a photo array on November 19, 1987. Additionally, each positively identified [appellant] at both the preliminary hearing and trial.
Handwriting analysis was performed by County Detective Cedric McKeever on all questioned signatures of Barry J. Allen. Detective McKeever concluded that he could not compare the known writings of [appellant] with the questioned signatures because in his opinion [appellant] had faked his writing when asked to submit to handwriting exemplars by the Commonwealth.
Procedurally, an information charging Theft by Receiving Stolen Property, Forgery and related offenses was filed against [appellant]. At the preliminary hearing the Commonwealth alleged that the theft, the negotiation of the subject check with Provident Bank, had occurred on July 3, 1987, and that the mail box was opened in furtherance of the theft in the afternoon of July 6, 1987.

Thereafter, then defense counsel, John M. Close, timely filed a Notice of Alibi asserting that alibi testimony would be presented concerning [appellant’s] whereabouts on July 3 and 6, 1987. The notice indicated that testimony would be offered from [appellant’s] wife and possibly other family members and friends and from [appellant’s] employment record and daily log. The notice also stated that:

This alibi defense will show that [appellant] was with his family on July 3, 1987, especially between the hours of 12 Noon and 2 P.M. and further this evidence will show that on July 6, 1987, [appellant] was, between 12:30 and 3 P.M., carrying out his employer’s business and his locations will be shown by presentation of his personal records and his work log and by his employer, Priority One’s testimony.

The above Notice of Alibi, however, did not contain any names or addresses of witnesses as required by Pa.R. Crim.P. 305(C)(1)(a). Because of this deficiency, the prosecutor requested more information regarding the alibi witnesses. Therefore, new defense counsel, Joseph P. Green, Jr., by letter dated August 23, 1988 sent to the Assistant District Attorney a list of three witnesses and their addresses[.]

# iH »!< # * #
By these witnesses defense counsel intended to prove [appellant’s] presence at his home at 419 Penn Lane, Springfield, and the home of [appellant’s] in-laws at 443 West Leamy Avenue, Springfield, Delaware County, Pa. 19604, on July 3, 1987.
The case was scheduled for trial on November 22,1988. However, prior to trial it was discovered that Paul McBroom had incorrectly testified at the preliminary hearing that the transaction with [appellant] at Provident occurred on July 3, 1987. Upon investigation, it was learned that Friday, July 3, 1987 was a bank holiday and that the transaction actually occurred on Thursday, July 2, 1987. This change in incident date was supported by the documents forged by [appellant] which bore this date. Mr. McBroom explained this mistake at trial when he testified that he thought the [appellant] came in on a Friday because of the heavy volume of customers that day. Fridays, McBroom explained, have more customers because it is the end of the work week. This particular work week, however, ended with Thursday, July 2 and this accounted for McBroom’s initial confusion.
Upon learning of the error of the July 8 date, the Commonwealth immediately notified counsel for [appellant] by telephone on November 16, 1988 and by letter dated November 22, 1988 that the incident was newly alleged to have been committed on July 2, [1987]. Defense acknowledged the change of date by letter dated November 16, 1988. Because of the changed incident date, both counsel agreed to a continuance which was granted and the new trial date of January 24, 1989 was scheduled. No further communication occurred between defense counsel and the Assistant District Attorney regarding the alibi witnesses.
On January 24, 1989 the Commonwealth moved to amend the Bills of Information to reflect July 2, 1987 as the Provident Bank incident date. This motion was granted by the [trial court]. Immediately thereafter, defense counsel moved to amend his Notice of Alibi to provide an alibi for July 2, 1987. This Motion was denied by the [trial court] when counsel for [appellant] admitted to notice of the correct date on November 16, 1988 and in light of the fact that [appellant] failed to file a notice of a change in alibi defense any time between November 16, 1988 and January 24, [1989]. Following the suppression hearing, [appellant] proceeded to trial and was convicted of Theft by Receiving Stolen Property, Criminal Attempt at Theft and Forgery.
Following denial of [appellant’s] post verdict motions by [trial court] Order of May 2, 1989, [appellant] was sentenced on May 17, 1989 to six to twenty-three months on the Theft by Receiving Stolen Property conviction and five years probation of the Forgery conviction with the Criminal Attempt at Theft merging.

Trial court opinion, at 2-6. This timely appeal followed.

Appellant presents four issues for our review. Appellant’s first issue is “[w]hether the trial court erred (1) in refusing to permit [appellant] formally to amend his notice of alibi, and thereafter (2) in refusing to permit alibi evidence, when permission to amend was sought immediately after the Commonwealth amended the Information to change the date on which the offense was alleged to have been committed.” Appellant’s second issue is “[w]hether the trial court erred in excluding alibi evidence, notice of which had previously been given, where the witness from whom the evidence was to be elicited was called as a Commonwealth witness.” Appellant’s third and fourth issues are “[w]hether the [trial] Court erred in refusing to hold a hearing out of the presence of the jury to consider whether to exclude scientific evidence[,]” and “[w]hether the [trial] Court erred in admitting scientific evidence purporting to prove consciousness of guilt when the evidence was novel scientific evidence not generally accepted within the relevant scientific community.”

I.

Appellant first contends that “the trial court erred (1) in refusing to permit [appellant] formally to amend his notice of alibi, and thereafter (2) in refusing to permit alibi evidence, when permission to amend was sought immediately after the Commonwealth amended the Information to change the date on which the offense was alleged to have been committed.” Appellant argues that his failure to notify the Commonwealth of his changed alibi defense until the day of trial was not a violation of Pa.R.Crim.P. 305. Alternatively, appellant argues that if Rule 305 was violated, exclusion of all alibi evidence was an inappropriate sanction under the circumstances.

We first consider whether appellant’s failure to notify the Commonwealth before January 24, 1989, of the changes in its proposed alibi defense was a violation of Pa.R.Crim.P. 305. Rule 305(C)(1)(a) requires that:

A defendant who intends to offer the defense of alibi at trial shall ... file of record notice ... specifying intention to claim such defense. Such notice shall contain specific information as to the place or places where the defendant claims to have been at the time of the alleged offense and the names and addresses of witnesses whom the defendant intends to call in support of such claim.

(Emphasis added.) In the instant case, appellant did file notice of alibi defense before trial. While appellant’s initial notice of June 2, 1988 was not sufficiently specific, an amendment filed on August 23, 1988, listing the names and addresses of witnesses who would give alibi testimony for July 3, 1987 gave adequate notice. Appellant’s trial, scheduled for August 30, 1988, was delayed to allow the Commonwealth time to prepare to meet appellant’s late-listed alibi testimony.

Once the Commonwealth notified appellant in November that it intended to prove that appellant deposited the check on July 2, 1987 rather than on July 3, 1987, appellant’s proposed alibi defense concerning July 3 became irrelevant. If appellant intended to offer an alibi defense for July 2, 1987, he was required, pursuant to Pa.R.Crim.P. 305(C)(1)(a) to file a notice of this alibi, containing specific information, within a reasonable time.

There is nothing in the record to indicate that appellant notified the Commonwealth of the specifics of his new alibi defense, or that he even intended to present an alibi for July 2, 1987, until the day of trial. This notice came more than two months after appellant had been notified of the change in the Commonwealth’s case. Appellant’s attempt to file notice of alibi defense on the day of trial was a clear violation of Pa.R.Crim.P. 305.

Having decided that Rule 305 was violated, we next discuss whether the sanctions imposed by the trial court were appropriate under the circumstances.

Pa.R.Crim.P. 305(C)(1)(d) states:

If the defendant fails to file and serve notice of alibi defense ... as required by this rule, or omits any witness from such notice, the court at trial may exclude the testimony of such omitted witness, or may exclude entirely any evidence offered by the defendant for the purpose of proving the defense, except testimony by the defendant, or may grant a continuance to enable the Commonwealth to investigate such evidence, or may make such other order as the interests of justice require.

(Emphasis added.) The sanction imposed by the trial court, preclusion of appellant’s unnoticed alibi evidence, is expressly permitted by the rule. Appellant does not argue that the Rule 305(C)(1)(d) is unconstitutional on its face. Rather, he argues that the trial court’s decision to exclude all alibi evidence was an improper sanction under the circumstances.

The imposition of sanctions for violations of Pa.R. Crim.P. 305 rests in the sole discretion of the trial court. Commonwealth v. Malone, 356 Pa.Super. 281, 514 A.2d 612 (1986); Commonwealth v. Yost, 348 Pa.Super. 297, 502 A.2d 216 (1985) (per curiam). In Commonwealth v. Anthony, 376 Pa.Super. 623, 546 A.2d 1122 (1988), this Court affirmed the exclusion of alibi defense where the defendant had failed to give notice of the defense until the morning of trial. In the instant case, appellant’s counsel was notified 69 days before trial that the Commonwealth would attempt to prove that the check was deposited on July 2, 1987, rather than on July 3, 1987. Appellant waited until the day of trial to give any notice of his intent to present an alibi for July 2. We hold that the trial court did not abuse its discretion in excluding appellant’s proposed alibi testimony.

This finding does not conclude our analysis of this issue. Appellant cites Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988), for the proposition that the trial court was constitutionally required to perform an on-the-record balancing test before imposing sanctions. We read no such requirement into Taylor. We do find that Taylor provides guidance concerning whether the sanction imposed complied with the sixth amendment to the United States Constitution:

A trial judge may certainly insist on an explanation for a party’s failure to comply with a request to identify his or her witnesses in advance of trial. If that explanation reveals that the omission was willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence, it would be entirely consistent with the purposes of the Confrontation Clause simply to exclude the witness’ testimony.

Taylor, supra, 484 U.S. at 415, 108 S.Ct. at 655-656, 98 L.Ed.2d at 814.

Here the trial court did not ask appellant’s counsel to explain his failure to identify his alibi witnesses in advance of trial. The court did, however, confirm that appellant’s counsel had been notified more than two months before trial of the change in the Commonwealth’s case. Transcript of January 24, 1989 Suppression hearing, at 37-38. The court concluded that appellant “had deliberately failed to comply with the mandatory provisions of [Pa.R.Crim.P.] 305 in an attempt to delay an already lengthy litigation.” Trial court opinion, at 10. The record provides ample support for this conclusion, including: (1) appellant’s initial deficient notice of alibi defense; (2) appellant’s late filing of specific information concerning his alibi defense for July 3, and the resulting continuance from August 30, 1988 to November, 1988; (3) the continuance from November, 1988 to January 24, 1989, granted “solely and for the specific reason of allowing [appellant] to reevaluate his alibi position,” and (4) appellant’s attempt to file notice of alibi defense on the day of trial. Trial court opinion, at 9.

The trial court’s exclusion of appellant’s alibi evidence, based on the finding of deliberateness, is entirely consistent with Taylor. We do not find that Escalera v. Coombe, 852 F.2d 45 (2nd Cir.1988), cited by appellant, requires us to remand for fact finding. As appellant states in his brief, Escalera was remanded for the lower court to determine whether appellant’s violation of discovery rules was willful. In the case before us, the trial court specifically found that appellant “deliberately failed to comply with the manijatory provisions of [Pa.R.Crim.P.] 305 in an attempt to delay, an already lengthy litigation.” Trial court opinion, at 10. We hold that this finding satisfies the dictates of Taylor, and that the trial court’s exclusion of appellant’s alibi evidence did not violate appellant’s rights under the sixth amendment to the United States Constitution.

II.

Appellant next argues that “the trial court erred in excluding alibi evidence, notice of which had previously been given, where the witness from whom the evidence was to be elicited was called as a Commonwealth witness.” We begin with the observation that although the excluded evidence was indeed in the nature of an alibi, the trial court excluded the evidence because it was hearsay. The excluded evidence consisted of business records kept by appellant’s employer, Priority One Transport. Appellant sought to introduce these business records, job order tickets, during the cross-examination of a Commonwealth witness.

The trial court admitted the notations on the job order tickets as evidence that telephone calls were received at Priority One Transport on July 6, 1987. The court, however, did not admit the notations as evidence either that the calls were made by appellant, or that appellant had actually been at the locations stated on the tickets. The court based its ruling on the fact that the authenticating witness, Ms. Leslie Testan, was not the same person who received the telephone calls in question.

The admissibility of business records in Pennsylvania courts is controlled by the Uniform Business Records as Evidence Act, 42 Pa.C.S.A. § 6108, which states in part:

A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.

42 Pa.C.S.A. § 6108(b) (emphasis added). The decision whether to admit business records into evidence rests in the discretion of the trial court. Commonwealth v. Morocco, 375 Pa.Super. 367, 544 A.2d 965 (1988), allocatur denied, 520 Pa. 615, 554 A.2d 508 (1989); Thomas v. Allegheny & Eastern Coal Co., 309 Pa.Super. 333, 455 A.2d 637 (1982); 42 Pa.C.S.A. § 6108(b).

In order for business records to be admissible, “it is essential that no lack of trustworthiness appear in the source of information or the method or circumstances of preparation. The factors to be weighed in evaluating the trustworthiness of business records include whether there was either motive or opportunity to prepare an inaccurate record[.]” Ganster v. Western Pennsylvania Water Co., 349 Pa.Super. 561, 568-69, 504 A.2d 186, 190 (1985); accord Commonwealth v. Sullivan, 372 Pa.Super. 88, 538 A.2d 1363 (1988), allocatur denied, 521 Pa. 612, 557 A.2d 343 (1989).

The job order tickets, offered as evidence that the telephone calls received were actually made by appellant, were hearsay within hearsay. In dealing with hearsay within hearsay, or double hearsay, the reliability and trustworthiness of each declarant must be independently established. Commonwealth v. Scott, 503 Pa. 624, 470 A.2d 91 (1983). In this case, appellant did not independently establish the reliability of the recipient’s identification of appellant as the caller. See Commonwealth v. Sullivan, supra.

As proof that appellant was at the locations and times stated on the job order tickets, the evidence represented yet a third level of hearsay, the reliability and trustworthiness of which was certainly open to question. Appellant had the opportunity and possible motive, Ganster, supra, to cause entries to be made on the tickets that did not accurately reflect appellant’s actual whereabouts of July 6, 1987. Questioned by the court, the authenticating witness stated:

THE COURT: Well, what you’re saying, Mrs. Testan, is that the time of delivery depends upon the courier’s call to you and you recording what he said?
THE WITNESS: The number on the page is, yes, determined by the driver.
THE COURT: Because by the nature of the business you’re not there, you don’t know whether what he’s telling you is necessarily the truth.
THE WITNESS: That’s right. The only reason I would have to question it would be if the person that is supposed to be receiving the package would call____ So then
I would question it, otherwise I would take the driver’s word for it.

Transcript of January 24, 1989, at 58. We hold that the trial court did not abuse its discretion in excluding the hearsay contained in the business records as proof that specific telephone calls were made by appellant, or that appellant actually was in the locations stated on the records.

III.

Appellant’s third issue is “[w]hether the [trial] Court erred in refusing to hold a hearing out of the presence of the jury to consider whether to exclude scientific evidence.” We begin observing that this case was heard as a non-jury trial. Appellant’s third issue, therefore, is moot.

IV.

Appellant’s fourth issue is “[w]hether the [trial] Court erred in admitting scientific evidence purporting to prove consciousness of guilt when the evidence was novel scientific evidence not generally accepted within the relevant scientific community.” The evidence appellant objects to is the testimony of a properly qualified handwriting expert who testified for the Commonwealth concerning his examination of documents. The witness’s expertise in examining handwriting was not disputed by appellant.

Appellant objects to the witness’s opinion testimony that appellant had faked a handwriting exemplar in an attempt to hide his true handwriting. The witness based his opinion on his observation of appellant’s unusually slow completion of the exemplar and the witness’s extensive experience in obtaining handwriting exemplars. Appellant objects that this aspect of the witness’s testimony was not based on scientific principles “generally accepted by scientists active in the appropriate scientific communities.” Commonwealth v. Miller, 367 Pa.Super. 359, 365-366, 532 A.2d 1186, 1189 (1987).

We begin our analysis of appellant’s fourth issue by assuming, arguendo, that the witness’s opinion that appellant falsified his handwriting exemplar was not properly qualified scientific evidence under Miller, supra. It is presumed that a judge, sitting as fact finder, is not improperly influenced by evidence which would otherwise be considered prejudicial. Commonwealth v. Brown, 336 Pa.Super. 628, 486 A.2d 441 (1984); Cf. Commonwealth v. Lewis, 314 Pa.Super. 298, 460 A.2d 1149 (1983) (where judge presides at pre-trial suppression hearing, he need not recuse himself as fact finder at trial unless inadmissible evidence of a highly prejudicial nature was presented at the suppression hearing); Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980) (harmless error found where trial judge sitting as fact finder expressly stated that he disregarded evidence of defendant’s criminal record).

We find no evidence of record to overcome the presumption that the judge sitting as fact finder gave the witness’s conclusion proper weight. To the contrary, the trial court specifically states that it did not accept the witness’s disputed conclusion:

the testimony ... that [appellant] exhibited very unusual behavior when giving the exemplar was relevant but that the conclusion that [appellant] had faked [his handwriting] was for this Court to determine based on the witness’ credibility and the foundation laid. It is important to note, as previously discussed, that there was overwhelming evidence against [appellant] indicating that it was [appellant] who opened the bank account with the stolen Sears Mortgage check and who endorsed same, and that it was [appellant] who opened the mail drop box.

Trial court opinion, at 14. The court states further that it “was fully aware of the limited weight to be given” to the witness’s opinion that appellant had falsified the handwriting exemplar. Id. Where, as in this case, the weight of competent evidence clearly supports the verdict, we decline appellant’s invitation to find error. Commonwealth v. Harvey, 514 Pa. 531, 526 A.2d 330 (1987).

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 3925.

      . 18 Pa.C.S.A. § 4101.

      . The trial court opinion states that the incident was newly alleged to have occurred on July 2, 1988. It is clear from the record, however, that July 2, 1987 is the correct date.

      . The trial court opinion states this date as January 24, 1988. It is clear from the record, however, that January 24, 1989 is the correct date.

      . Alternatively, were we to find that appellant’s prior notice of alibi defense was still effective after the Commonwealth gave notice that it intended to prove that appellant deposited the check on July 2, 1987, rather than July 3, 1987, appellant was under a duty, pursuant to Pa.R.Crim.P. 305(D), to promptly notify the Commonwealth or the trial court of his alibi witnesses for July 2. Appellant’s attempt to notify the Commonwealth and the trial court of his new alibi defense on the day of trial, 69 days after the Commonwealth notified him of the change in its proof, was not prompt, and was a violation of Pa.R.Crim.P. 305(D).

      . Appellant notified the Commonwealth and the court of his intent to present alibi testimony for July 2, 1987 at the suppression hearing on the day of trial, January 24, 1989. The Commonwealth notified appellant’s attorney of the change in its case by telephone call on November 16, 1988, followed by letter dated November 22, 1988. In a letter dated November 16, 1988, confirming the change, appellant’s counsel stated “As a result [of the change in the Commonwealth's case] I need to reevaluate whether an alibi defense is availablef.]" The record does not reflect that appellant made any further mention of any alibi defense until the day of trial.

      . While the Commonwealth did not actually move to amend the bills of information until the suppression hearing of January 24, 1989, it is undisputed that appellant received more than two months’ notice of the Commonwealth’s intent. Appellant did not object to the amendment, nor has appellant ever claimed that he was prejudiced thereby.

      . This Court, in Commonwealth v. Fernandez, 333 Pa.Super. 279, 482 A.2d 567 (1984), held Pa.R.Crim.P. 305(C) constitutional on its face and as applied, affirming a trial court’s exclusion of alibi testimony where not proffered until mid-trial.

      . Escalera was heard on remand from the United States Supreme Court "for further consideration in light of Taylor v. Illinois [.]” See Coombe v. Escalera, 484 U.S. 1054, 108 S.Ct. 1004, 98 L.Ed.2d 971 (1988).

      . Appellant sought to introduce notations made on the job order tickets as evidence that appellant had been at specific locations at specific times on July 6, 1987, and that he therefore could not have been opening a "mail drop” at Valley Forge Mail Boxes in Upper Merion Township. The notations on the job order tickets were made at Priority One Transport’s office, based on information received by telephone.

      . Appellant does not attack in this appeal the validity of his waiver of jury trial, nor does he argue that the judge should have recused himself from hearing the trial because he presided at the suppression hearing.


author: BECK, Judge: JOHNSON, Judge, CIRILLO, President Judge,

text:
    571 A.2d 1070
    Nancy PHAROAH, Individually and as Guardian for Anthony Lapes, a Minor v. George A. LAPES, Appellant (Two Cases).
    Superior Court of Pennsylvania.
    Argued Sept. 27, 1989.
    Filed March 1, 1990.

      Donald H. Yost, York, for appellant.
    Susan A. Docktor, Dillsburg, for appellee.

      Before CIRILLO, President Judge, and BECK and JOHNSON, JJ.
   BECK, Judge:

Nancy Pharoah (formerly Nancy Lapes and hereinafter “mother”), filed a petition seeking contribution from George Lapes, the father, for the college education and support of their son Anthony. Since 1981 father has been paying child support for Anthony and a younger child Andrea pursuant to a marital settlement agreement. The agreement contemplated college education for both children. Rather than fixing a specified contribution or constructing a formula by which to do so, the agreement acknowledged each party’s commitment to the post-secondary education of the children and provided that each party would contribute to that education commensurate with his or her then ability to pay. The agreement also provided that if the parties disagreed about the contribution of each parent, either one of them could seek a judicial resolution of the dispute. Such a dispute arose and mother brought the instant support action. The father appeals the order of the support court.

A brief description of the family background is helpful to an understanding of the issues in the case. Appellant and appellee were divorced in 1981 after a sixteen year marriage. Both parties have remarried. The father lives in York, Pennsylvania with his wife and their young son. He is a psychiatrist earning approximately $200,000 a year. The mother lives in Georgia with Anthony and Andrea and her husband. The mother is a former nurse who left her career in favor of full-time parenting. The children maintain a cordial relationship with their natural father and paternal grandparents through correspondence, telephone conversations and visits.

The focus of this dispute is Anthony’s education. He was an outstanding student in high school. He was valedictorian and graduated number one in his class. He received numerous academic and athletic awards both nationally and at home. He excelled in math, history and languages. His athletic achievements included football, basketball and track. As a result of his remarkable record, Anthony was in the enviable position of having to choose between two universities, Georgia Institute of Technology and Massachusetts Institute of Technology (hereinafter Georgia Tech and M.I.T.). Although Georgia Tech offered him a full tuition scholarship, he chose to attend M.I.T. He had formed an ambition to attend M.I.T. early in his high school career. Anthony explained that he consulted with his parents during the course of high school about his college plans. Since no one raised any objection to his applying to M.I.T., he concluded that cost would not be a “major factor” in deciding whether or not to attend. In addition to being an outstanding institution of higher education, M.I.T. also offered Anthony an opportunity to live in an entirely different geographical area.

The trial judge held a three day hearing at which she heard extensive testimony from Anthony, his father and his mother. During the course of lengthy direct and cross examination Anthony testified to his educational accomplishments and aspirations and the reasons behind his decision to attend M.I.T. He gave a detailed accounting and explanation of his living expenses. Further, he described his relationship with his father. The father and mother were also subject to protracted examination on their financial circumstances. Finally, the mother testified in depth about the expenditures she made in raising her children. Based on the testimony at trial as well as on substantial documentary evidence, the trial court fashioned an order requiring appellant to contribute $1715.00 per month towards Anthony’s college support ($20,580.00 per year). The court arrived at this figure after taking into account the numerous merit scholarships Anthony had been awarded and also assessing Anthony’s own ability to earn some money to defray his expenses.

On appeal appellant asserts that: 1) the trial court abused its discretion by obligating appellant to pay the additional costs of tuition at M.I.T. because Georgia Tech had offered Anthony a tuition-free education; 2) the trial court abused its discretion in calculating Anthony’s reasonable living expenses; and 3) the trial court abused its discretion by underestimating the available income of the mother in determining her share of the college support obligation. For the reasons which follow, we affirm.

It is well established that the scope of appellate review in child support cases is very narrow. The appellate court will disturb a trial court’s findings only when the judge has clearly abused his or her discretion. “[A] finding of such abuse is not lightly made and must rest upon a showing of clear and convincing evidence.” Shindel v. Leedom, 350 Pa.Super. 274, 279, 504 A.2d 353, 355-56 (1986) (citations omitted). What constitutes an abuse of discretion is also well settled. It is not “ ‘merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.’ ” Fee v. Fee, 344 Pa.Super. 276, 496 A.2d 793, 794 (1985) (citation omitted). The scope of review in such cases is not altered by the fact that the order is for college support as opposed to support for a minor child. See Bedford v. Bedford, 386 Pa.Super. 349, 563 A.2d 102, 104 (1989); Leonard v. Leonard, 353 Pa.Super. 604, 608, 510 A.2d 827, 829 (1986); Commonwealth ex rel. Larsen v. Larsen, 211 Pa.Super 30, 234 A.2d 18 (1967). Judged by this stringent standard, we find no abuse of discretion.

The obligation of a parent with adequate financial resources to furnish support for a child’s college education is well settled in Pennsylvania. See, e.g., Miller v. Miller, 353 Pa.Super. 194, 509 A.2d 402 (1986); Sutliff v. Sutliff, 339 Pa.Super. 523, 489 A.2d 764 (1985). A court will impose this obligation on a parent only if the burden of college support will not cause undue hardship. Leonard v. Leonard, supra; Bedford v. Bedford, supra. Furthermore, if it can be shown that “a parent can meet the support needs of a college-age child with ease, a court is free to impose a complete obligation.” Miller v. Miller, supra, 509 A.2d at 404. In this regard we note that appellant does not argue that he lacks the financial ability to contribute the ordered amount towards Anthony’s college education, nor could he reasonably do so. The trial court found that appellant’s annual gross earned income for 1986 and 1987 was $202,-358.00 and $190,756.00 respectively and that his reasonable living expenses were approximately $5000.00 per month. Appellant does not dispute the accuracy of these findings nor does he argue that payment of the court ordered college expenses will work any hardship on him, much less “undue hardship”. Rather the gravamen of appellant’s argument is that it was “unreasonable” for the court to order him to contribute toward’s Anthony’s M.I.T. education when Anthony could have received an education elsewhere for less money. Under the circumstances of this case, we find appellant’s argument lacks merit.

It is the father’s contention that his responsibility is limited to an education that is “proper”, “reasonable” or “adequate”. Therefore, he argues that since an education at Georgia Tech would have been “adequate”, he should not have to pay the added expense of sending Anthony to M.I.T. What appellant overlooks in his reasoning is that here, as in any support matter, what is “reasonable” depends upon an assessment of all the circumstances in the case including the intellectual and scholastic achievements and aspirations of the child, the financial resources of the parents, the parties’ station in life and customary standard of living and the child’s relationship with the parent from whom he seeks support. Moreover, and most importantly, the assessment of what constitutes reasonable support in a given case is left to the sound discretion of the trial court.

The principle that the fashioning of an equitable college support order is a matter best handled by the trial court was emphasized in Commonwealth ex rel. Larsen v. Larsen, supra, a case upon which appellant mistakenly relies. At issue in Larsen was “the extent to which a father is obliged ... to support a child attending an expensive private college when an adequate but less expensive education is available elsewhere.” 234 A.2d at 20. The court in Larsen refused to establish an inflexible rule but instead recognized that “[t]he determination of whether such an additional burden should be imposed on the father is a matter for the trial court”. Id. (emphasis added) Further, this court noted:

[T]he court must first ascertain what advantages are offered by the more expensive college in relation to the child’s individual needs, aptitude, ability, and the child’s anticipated vocation. It must then weigh these advantages against the increased hardship that would be imposed on the father to determine whether the additional expense is reasonable under the circumstances. We realize that a judge who sees and hears the witnesses in a case such as this is in a better position than this Court. to decide this problem and our function on appeal, therefore, is merely to determine whether the lower court is chargeable with an abuse of discretion.

Id. at 21. (emphasis added).

In Larsen, the father from whom increased college support payments were sought was a medical doctor who had almost reached retirement age, had a modest income, a fraction of appellant's in the instant case and, therefore, there was a risk that the increased payments might jeopardize his financial security. As has already been noted, the same cannot be said for the appellant in this case whose financial assets are undisputedly substantial. More importantly, the child in Larsen was an average student and the more expensive college he sought to attend was on a par with the state-run university. In contrast, in the instant case, the record amply supports the trial court’s conclusion that Anthony “deserved” the best education possible based upon his considerable academic accomplishments. The record further establishes that Anthony’s decision to attend M.I.T. was based on the reasonable conclusion that it would represent a superior educational experience. This conclusion was reached by assessing the school’s selectivity, its ratings in college handbooks, its course offerings in Anthony’s chosen field of computer science and its national, indeed international reputation. Under these circumstances, we agree with the trial court which balanced all of these factors along with the father’s financial resources and found that the father was required to contribute to his son’s M.I.T. education.

Appellant’s next contention is that the trial court abused its discretion by miscalculating the reasonable living expenses incurred by Anthony at M.I.T. This argument is without merit. The trial court heard ample and detailed testimony from both Anthony and his mother about the amount of money it was necessary for Anthony to spend during his first two years at M.I.T. The record supports the fact that the trial judge tailored the amount of support to Anthony’s realistic needs.

As a separate claim of error, appellant contends that the trial court abused its discretion in determining the reasonable annual transportation expenses for Anthony. The record reveals that Anthony kept a 1973 Volkswagon Rabbit at M.I.T. for his use during the school year. Anthony testified that this vehicle belongs to his stepfather and was given to him for his use at school. He also explained that the car “won’t make it” on a trip between Boston and Georgia and therefore he leaves it at school to use for short trips and to run errands. Anthony further testified that when he is in Georgia he uses another family car, which other family members also use. Anthony’s mother explained that the insurance expense for Anthony covers him on any family car he drives. Therefore, the insurance expense is the same whether Anthony has use of one or two cars. She further explained that the gasoline expenditures she listed as a child-rearing expense are incurred by Anthony alone during his school breaks and during summer vacations when he is home working his summer job. Appellant suggests that to allow for the insurance, maintenance, gas and other expenses for these two vehicles was error by the trial court. We disagree.

The reasonable use to which Anthony put these two vehicles was thoroughly explored in the record and the availability of two cars under these circumstances is not inappropriate for a college-age student whose school is a thousand miles from home. Similarly, the record supports the trial court’s finding that it was proper to include air transportation between Boston and Georgia at the start and end of the school year and for vacations as a reasonable and necessary living expense. Appellant suggests that it would be more reasonable to expect Anthony to drive to and from Georgia and Massachusetts despite unrefuted testimony from both Anthony and his mother that safety considerations dictate against it. We conclude appellant’s allegation of abuse of discretion by the trial court is meritless.

Finally, appellant argues that the trial court failed to calculate correctly the mother’s contribution towards Anthony’s college education. However, the record does not support this claim. The trial court attributed $20,000.00 of annual earning capacity to the mother although, as a homemaker and full-time parent, she had no actual income. Furthermore, the trial court allocated this entire amount as available to meet Anthony’s needs, because the trial court reasoned that the mother’s second husband supported her completely. All parties were subject to rigorous scrutiny through direct and cross examination regarding their incomes and expenditures. The trial court fairly assessed both the mother’s and father’s financial status in determining their respective contributions to Anthony’s college education. We find no abuse of discretion in this regard.

Order affirmed.

JOHNSON, J., files concurring opinion.

CIRILLO, President Judge, files dissenting opinion.

JOHNSON, Judge,

concurring:

I agree with my colleague, Judge Beck, that the Honorable Sheryl Ann Dorney has not committed any abuse of discretion in fashioning an equitable college support order. Because our scope of review is, quite properly, a narrow one, I am reluctant to join Judge Beck’s conclusion that the record before us establishes that attendance at the Massachusetts Institute of Technology (M.I.T.) by Anthony Lapes will result in a “superior educational experience” than if he were to attend the Georgia Institute of Technology (Georgia Tech).

As a reviewing court, we need not independently conclude that Anthony is “deserving” of what he believes to be “the best education possible” in order to affirm the trial court. Where we can confirm that the support award is within the financial means of the parent, which clearly is the case here, and where the trial judge has reasonably applied the principles regarding a parent’s obligation for support, our role is complete once we have ruled out an abuse of discretion.

Judge Dorney has carefully applied the law to the facts in this case. I, therefore, agree that the order of August 5, 1988 must be affirmed.

CIRILLO, President Judge,

dissenting:

Because I feel that under the circumstances of this case George A. Lapes (“father”) should not be forced to finance his son Anthony’s education at the Massachusetts Institute of Technology (“MIT”), I must respectfully dissent.

As the majority notes, Anthony was in the enviable position of having to decide between attending MIT or Georgia Institute of Technology (“Georgia Tech”). Confronted with this decision, Anthony consulted a number of people, including his father. During this brief consultation, Anthony informed his father that he was considering attending MIT, and since his father did not object to the cost of MIT, Anthony concluded that cost was not a major factor. What Anthony did not convey to his father was that Georgia Tech had offered him a full tuition scholarship. Anthony ultimately chose to attend MIT and the instant dispute arose.

The basic test for fashioning an award of support for post-secondary education is well settled:

An award made after majority for contribution to college expenses is made within the discretion of the court. This exercise of discretion is bounded by a judicially promulgated test consisting of two factors: the desire and ability of the child to successfully pursue post-secondary education and the ability of the parents to contribute to that effort without undue hardship.

Milne v. Milne, 383 Pa.Super. 177, 556 A.2d 854, 858 (1989) (citations omitted). The above elements do not exist in a vacuum; when determining an award for college expenses it is necessary for the trial court to weigh and evaluate a number of factors peculiar to each case which are outside the confines of the two tier test. Id. There are myriad cases that have considered factors outside the narrow two tier test when fashioning support awards for college expenses. Id. Further, although a college education is increasingly being viewed as a necessity, the duty to support a college-bound student in his or her majority is a qualified one. Id. Additionally, “we do not believe that the child should have absolute discretion in selecting a college, and thereby unilaterally increasing the father’s support obligation.” Commonwealth ex rel. Larsen v. Larsen, 211 Pa.Super. 30, 33, 234 A.2d 18, 20 (1967).

Instantly, it is undisputed that Anthony has the ability and desire to attend MIT. Moreover, the father does not contest his ability to finance Anthony’s education. The father does, however, argue that he should not be financially responsible for Anthony’s unilateral decision to attend MIT when Anthony did not discuss the cost of college with him, and more significantly, withheld from the father the fact that he was offered a four-year full tuition scholarship at Georgia Tech. If we were confined to the two tier test, our discussion would be at an end since Anthony has the academic proficiency to attend MIT and the father has the financial ability to contribute to that effort without undue hardship. Milne, supra. I refuse, however, to blindly apply this two part analysis.

Initially, it is worth noting that Anthony should be lauded for his academic achievements, and ideally he should be afforded the best education possible based upon these achievements. Our function, however, is not to compel divorced parents to provide the ideal support for their children, rather we only require them to furnish reasonable support. As the majority correctly states, what is an adequate and reasonable support order depends upon an assessment of all the circumstances in a particular case. The inadequacy in the majority’s analysis is that it does not assess the totality of the circumstances with the goal of replicating, as nearly as possible, the decision the intact family would have made. Milne, 383 Pa.Super. at 184, 187, 556 A.2d at 859, 861; see also Horan, Postminority Support for College Education-A Legally Enforceable Obligation in Divorce Proceedings? 20 Fam.L.Q. 589, 607 (1987) (hereinafter Horan)

Courts are traditionally, and for good reason, reluctant to cross the threshold of the family dwelling, for so far as they venture beyond that threshold, they have intruded____ The view that courts should not interfere in family relations is a fine approach, unless by taking it, the court allows greater evil than that which it attempts to prevent.
The objective of the court [in] extending its protection to adult children of divorced parents is to ensure that they are not unjustly deprived of opportunities they would otherwise have had, had their parents not divorced. The role of the courts in this endeavor should be one of substituting its judgment, as nearly as possible, for that of the parents. But this should not be done mechanically or arbitrarily. In essence, the court stands in loco parentis in making such decisions. For that reason, we must put ourselves in the shoes of each parent whose case comes before us. ... it is incumbent upon our judiciary to fashion each decision with the best interests of the whole family in mind.

Milne, 383 Pa.Super. at 186-87, 556 A.2d at 859-860 (footnotes omitted, emphasis added). Essentially, the court is required to assume the responsibility of an intact family. Milne, 383 Pa.Super. at 188, 556 A.2d at 861. When a family is intact, there is a discussion of the financial ramifications of an adult child’s educational preference. Milne, 383 Pa.Super. at 187, 556 A.2d at 860. If an intact family decides, for whatever reason, that they will not bear the burden of sending the adult child to the preferred, albeit more expensive, institution and that child still desires to attend college, he or she is confronted with two alternatives. The child can attend the more costly institution and finance the education on his or her own, or the child can defer to the parents’ decision and enroll in the less expensive college with their financial assistance. What the child of the intact family cannot do is attend the more costly college and subsequently sue his or her parents for the resulting expenses.

When the parents divorce, the mutual discussion of significant family matters may not take place. Often, the non-custodial parent who sees the child only periodically has little input on important decisions. As a result of the divorce and the breakdown of the once-intact family unit with its inherent channels of communication, the welfare of the children becomes the responsibility of the courts. Id. Our goal, as we are called upon to “usurp the natural functions of the family unit[,] ... [is to] assume the responsibility for the decisions that would be normally made entirely internally in a family if it were still intact.” Milne, 383 Pa.Super. at 189, 556 A.2d at 860-861.

I remain mindful that, “[a]ll too often what parents would have done willingly had their relationship not deteriorated must, after the fact, be coerced for the benefit of their children.” Chesonis, 372 Pa.Super. at 117, 538 A.2d at 1379 (Cirillo, P.J., dissenting). More importantly, however, I remain focused on our primary objective which initially prompted courts to interfere in a divorced family’s relationships: to ensure that children of divorced parents are not unjustly deprived of opportunities they would have had if their parents had remained married. Milne, 383 Pa.Super. at 186-87, 556 A.2d at 859. Conversely, our aim has never been to permit the adult children of divorced parents to reap profits that they would not have enjoyed if the family were still intact.

■ In the instant case, the majority notes that the relationship between father and son was “undeniably warm.” Consequently, the father appeared to hold no animosity for Anthony and had no motivation to act vindictively by summarily rejecting Anthony’s decision to attend MIT. When Anthony briefly consulted his father concerning his educational choices he did not inform his father that Georgia Tech had offered him a full tuition scholarship. The father did not discover that Anthony had been offered a full tuition scholarship until these proceedings were initiated. Apparently, the father objected to the cost of MIT before he was aware of the scholarship opportunity presented at Georgia Tech. Further, when one factors the tuition scholarship into the decision, the price of MIT becomes approximately $12,000,00 more than the cost of Georgia Tech, a financial discrepancy that may warrant even the most munificent of parents to refuse to finance a MIT education.

If Anthony’s family were intact, there would have been a mutual discussion of Anthony’s educational opportunities. Here, Anthony did not notify his father that Georgia Tech had offered him a full tuition scholarship; instead he gave his father incomplete information expecting complete financial support. “We strongly believe that children should discuss their post-secondary educational plans with their parents if they desire the parent to contribute toward that goal.” Bedford, 386 Pa.Super. at 358 n. 8, 563 A.2d at 106 n. 8. A vital part of any discussion concerning college education in a time of skyrocketing tuitions necessarily involves a consideration of the relative costs of the institutions.

I do not condone or condemn Mr. Lapes’ reluctance to pay for a MIT education. I do believe, however, that he would have arrived at this decision even if he and Anthony’s mother were not divorced. I reach this conclusion based primarily upon two factors: 1) the father’s relationship with Anthony was warm, and there is no evidence that he harbored any animosity toward Anthony, either before or after Anthony’s decision to attend MIT, and 2) although it was understood that Anthony would attend college, the father had objected to the high cost of a MIT education even before he discovered that Anthony had been offered a full tuition scholarship to Georgia Tech.

The father’s decision not to finance Anthony’s MIT education seems to have been purely an economic one, not done out of spite or bitterness. Therefore, under the circumstances of this case, we are not called upon to coerce a father to do something that he would have done willingly “but for” the deterioration of his marital relationship. Chesonis, 372 Pa.Super. at 113, 538 A.2d at 1379 (Cirillo, P.J., dissenting); see also Parental Support Obligations, 16 Suffolk U.L.Rev. 755, 771. On the contrary, what we are asked to do, and what the majority does, is bestow upon Anthony, at the expense of his father, a benefit he would not have been afforded if his parents had remained married. Accordingly, I respectfully dissent.

      . In fact, the marital settlement agreement provided for continued support payments by the father until each child reached twenty-three years of age or completed four years of post-high school education. The payments were to be seven and one-half (7'/2) percent of the father’s gross earned income for each child.

      . The record established that although the children did not see their father very frequently, they were in regular contact. Periodically, Anthony would visit his father and grandparents in York and played golf with his father on those occasions. Appellant attended Anthony’s high school graduation and also visited him in college twice. Father accompanied son to his fraternity pinning since he had been a member of the same fraternity. Both father and son testified to telephone calls and letters.

      . Among these awards were.: National Honor Society; National Merit Scholar; U.S. Army Reserve National Scholar Athlete Award; 1st Place in Elk’s Most Valuable Student Contest; 1st Place in American High School math exam and several other awards in math, history and science.

      . Anthony applied to M.I.T. for financial assistance but was rejected on the basis of his father’s income. Although Anthony's college education is being subsidized in part by various awards and scholarships, including a National Merit Scholarship, these were awarded on the basis of merit not need.

      . This figure included the child support payments for his daughter, Andrea.

      . It would be ironic indeed if Anthony were made ineligible for financial aid from M.I.T. based on his father’s significant assets and yet was barred from relying on those same assets in seeking reasonable college support from his father. By awarding college support in this and other similar cases, the court attempts to mitigate the negative economic impact divorce has on children. See Maurer v. Maurer, 382 Pa.Super. 468, 555 A.2d 1294, 1297 (1989);

      . In a misguided attempt to rely on this court’s recent decision in Milne v. Milne, 383 Pa.Super. 177, 556 A.2d 854 (1989), appellant argues that Anthony must "accept the consequences” of his decision to attend M.I.T. by depriving him of his father’s support in meeting his expenses there. Appellant’s comparison of this case to Milne is far-fetched. In. Milne the adult child had repudiated his mother in an offensive manner and then sought to impose his college costs on her. Here the relationship between the parties was undeniably warm. Moreover, all Anthony can be said to be guilty of is having the highest possible educational goals. The only "lesson” we would teach by accepting appellant’s argument would be that a child of divorced parents could not reap the benefits of having achieved outstanding academic success if by doing so it would place any additional burden on the non-custodial parent. We refuse to adopt such an approach.

      . Appellant apparently regrets that he was not allowed to take advantage of the windfall which perhaps would have been his had his son elected to attend Georgia Tech. As has been noted by a member of this court, parents bear the primary financial responsibility for their childrens' college education and other sources of financial aid are both secondary and limited. Hopefully, if parents who can amply afford to do so meet their financial responsibilities, more resources will be available for those college-bound students who are in genuine need of aid. See Leonard v. Leonard, supra, concurring statement by Kelly, J., 510 A.2d at 832. In the instant case, appellant has already had his financial obligation reduced by the numerous scholarships and awards his son was able to obtain by his scholarly efforts.

      . It is obvious, therefore, that appellant's contention that the trial court failed to consider appellee’s husband’s contribution to the household is wholly without merit.

      . Appellant contends that the trial court should have included in its calculations of the mother’s financial assets available for Anthony's education the amount of child support being paid to her for Andrea. He further suggests that the mother failed to exercise proper "stewardship" of her previously received child support monies by failing to save more significant amounts of it for the childrens’ college education. We see no support for this contention in the record. On the contrary, the mother’s credible testimony indicated that the childrens’ expenses consistently exceeded the child support payments and that in addition she still had managed to save $4000.00 and $7000.00 for Anthony’s and Andrea’s education respectively. Moreover, we see nothing in the separation agreement or in the testimony which would indicate that the parties in any way contemplated that a portion of the child support amounts paid in the childrens’ minor years would be set aside to pay for college. In fact, the agreement's college support provision belies this interpretation.

      . For example, in Milne, this court looked outside the two tier test and held that an adult child’s willful estrangement from his or her parent excuses that parent from his or her duty to contribute to the child’s educational expenses. In Bedford v. Bedford, 386 Pa.Super. 349, 563 A.2d 102 (1989), we clarified the estrangement necessary to cut off a parent’s duty to contribute to support of the child’s college expenses. See also Sutliff v. Sutliff, 515 Pa. 393, 403, 528 A.2d 1318, 1322 (1987); Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984); Chesonis v. Chesonis, 372 Pa.Super. 113, 538 A.2d 1376 (1988); DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508 (1987); Francis v. Francis, 358 Pa.Super. 391, 517 A.2d 997 (1986); DeVergilius v. DeVergilius, 329 Pa.Super. 434, 478 A.2d 866 (1984); Commonwealth ex rel. Smith v. Smith, 217 Pa.Super. 1, 268 A.2d 161 (1970); Commonwealth ex rel. O’Hey v. McCurdy, 199 Pa.Super. 115, 184 A.2d 291 (1962).

      . Although the father has not contested his ability to pay, it is not inconceivable that the cost of a MIT education may work an undue hardship even upon a parent who has annual earnings of approximately $200,000.00.

      . "The goal of postminority support is not to make wholesale awards of college tuition, but to replicate, as closely as possible the decision the intact family would make.” Horan, 20 Fam.L.Q. at 607. "In essence, by carefully evaluating the most salient factors comprising the family’s total circumstances, the court [Hardisty v. Hardisty, 183 Conn. 253, 439 A.2d 307 (1981) ] attempted to identify the approach which the parties themselves would have taken to educate their child had their marriage not been terminated.” Note, Support Obligations of the Non-Custodial Parent for Private Secondary and College Education: Toward a Uniform and Equitable Resolution, 16 Suffolk U.L. Rev. 755, 767 (1982) (hereinafter Parental Support Obligations).

      . The majority notes that parents who can afford to meet their financial obligations should, so that more resources would be available for those who genuinely need financial assistance. However, the pool of financial resources for the truly needy is equally drained when the intact family, although capable, decides not to finance their child's college education, as when capable divorced parents arrive at this same decision.