author: OLSZEWSKI, Judge:

text:
    556 A.2d 398
    Donna K. DEITRICH, Appellee, v. Ned E. DEITRICH, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 6, 1988.
    Filed March 23, 1989.

      John R. Miller, Jr., State College, for appellant.
    Stephen W. Furst, Bellefonte, for appellee.
    Before CAVANAUGH, OLSZEWSKI and KELLY, jj.
   OLSZEWSKI, Judge:

This is an appeal from an order granting a decree in divorce and incorporating a previously vacated award of equitable distribution of marital property. Appellant maintains that the trial court erred in: (1) failing to dismiss the action, (2) ordering economic issues to be heard apart from divorce issues without hearing on appellee’s praecipe, (3) denying appellant’s motion for bifurcation and rehearing, (4) granting a decree in divorce incorporating the previously vacated equitable distribution order; (5) finding Pa.R.C.P. No. 1920.53(a)(1) inapplicable to the filing of the master’s report; and (6) affirming the master’s report. We affirm.

The parties were married on November 16, 1963, and separated on January 28, 1982, when appellee left the marital home. On June 9, 1982, appellee filed a complaint in divorce, alleging specific fault grounds and that the marriage is irretrievably broken. The complaint also included claims for spousal and child support, determination of custody of the parties’ children, alimony, alimony pendente lite, counsel fees, costs and equitable distribution of marital property. On January 24, 1983, appellee filed a praecipe to list the matter for hearing on issues of equitable distribution, alimony, counsel fees and costs. By order dated March 31, 1983, the trial court directed the parties to appear for hearing on May 10, 1983. A master’s hearing on the economic issues was held on the date designated by the trial court and continued on September 13, 1983, by stipulation of the parties’ counsels. On April 3, 1985, the master filed his report and proposed order recommending that appellee be awarded fifty-five percent of the value of marital property. In addition, the master recommended that appellee have the right to enter a judgment against appellant in the amount of $178,855.41. Exceptions to the master’s report were timely filed. On April 26, 1985, appellant filed an answer to the divorce complaint denying averments of fault and admitting that the marriage is irretrievably broken. In addition, appellant filed a counterclaim praying for divorce on averments of fault by appellee. By orders docketed September 19 and 26, 1985, exceptions were denied and the master’s proposed order was issued. On September 25, 1985, appellee filed a 201(c) affidavit of consent to divorce and a notice of affidavit pursuant to 23 P.S. § 201(d). Thereafter, on October 16, 1985, appellant appealed to this Court. On July 9, 1986, a per curiam order was entered quashing the appeal as interlocutory because a divorce decree had not yet been entered. See Dech v. Dech, 342 Pa.Super. 17, 492 A.2d 41 (1985) (entry of divorce decree is prerequisite to an order for alimony or equitable distribution of martial property). The trial court orders were vacated, and the matter was remanded to the trial court for entry of a divorce decree. On September 30, 1986, appellant filed a motion to dismiss the action by decree of non pros. After hearing on the motion, the trial court ordered appellee to move for entry of final decree in divorce within twenty days of the date of the order or appellee’s action in divorce would be dismissed. Appellee complied with the trial court order, and a final decree in divorce was entered on March 13, 1987. The final decree incorporated the orders, previously vacated by this Court, distributing the parties’ martial assets. Prior to the entry of the final decree and after receipt of the trial court’s order directing appellee to move for entry of a final decree in divorce, appellant filed a petition for bifurcation of divorce and economic issues and rehearing. On March 17, 1987, the trial court denied the petition after hearing on March 10, 1987. Appellant filed this timely appeal.

Appellant first maintains that the trial court erred in denying appellant's motion to dismiss the divorce action.

In Gallagher v. Jewish Hospital Assn., 425 Pa. 112, 113, 228 A.2d 732 [1967], we said: “It is well settled that the question of granting’ a non pros, because of the failure of the plaintiff to prosecute his action within a reasonable time rests within the discretion of the lower court and the exercise of such discretion will not be disturbed on appeal unless there is proof of a manifest abuse thereof. Aldridge v. Great A. & P. Tea Co., 394 Pa. 57, [58], 145 A.2d 695 [1958]; Margolis v. Blecher, 364 Pa. 234, [236], 72 A.2d 127 [1950]; Potter T. & T. Co. v. Frank, 298 Pa. 137, 148 A. 50 [1929].”
The circumstances under which this discretion may properly be exercised by a Court below have often been set forth. A Court may properly enter a judgment of non pros, when a party to the proceeding has shown a want of due diligence in failing to proceed with reasonable promptitude, and there has been no compelling reason for the delay, and the delay has caused some prejudice to the adverse party, such as the death of or unexplained absence of material witnesses. Manson v. First National Bank, 366 Pa. 211, 215, 77 A.2d 399; Alker v. Philadelphia National Bank, 372 Pa. 327, 33, 93 A.2d 699; Hruska v. Gibson, 316 Pa. 518, 519, 175 A. 514.

James Brothers Co. et al. v. Union Banking and Trust Company, 432 Pa. 129, 132, 247 A.2d 587, 589 (1968). “[T]he right to a non pros, may be waivedf, however,] if there is conduct indicating a willingness on defendant's part to try the case on the merits notwithstanding the delay, or if he is a party to, or causes the delay.” Pennsylvania R. Co. v. City of Pittsburgh, 335 Pa. 449, 455, 6 A.2d 907, 912 (1939).

In the case sub judice, the trial court issued the following order:

AND NOW, this 21 day of January, 198[7], it is ordered that Defendant’s Motion to Dismiss is GRANTED.
Plaintiff is ORDERED to move for entry of final divorce decree under 28 Pa.C.S.A. Section 201(d) within twenty (20) days of the date of this Order.
Failure to move for final decree will result in Plaintiff’s divorce action being dismissed.

Although the trial court found circumstances warranting entry of a judgment of non pros, the court, in effect, denied appellant’s motion by permitting appellee to move for entry of a divorce decree within a specified time period. While concluding that the trial court acted within its discretion in allowing entry of a divorce decree in this matter, we base our decision on grounds differing from the trial court’s rationale. See Gerace v. Holmes Protection of Philadelphia, 357 Pa.Super. 467, 471-472, 516 A.2d 354, 357 (1986) (“As an appellate court, we may affirm the lower court by reasoning different than that used by the lower court.”). Instantly, we find that appellant: (1) indicated a willingness to proceed notwithstanding any delay that may be attributable to appellee, and (2) also contributed to any delay by filing a premature appeal to this Court. Appellant indicated his willingness to proceed with the divorce action by taking steps to ensure himself a favorable equitable distribution award. Despite no resolution of the divorce claim, appellant, through counsel and himself, participated in hearings regarding equitable distribution and other economic claims. In addition, appellant filed exceptions to the master’s report and also appealed from the equitable distribution order entered by the trial court prior to the entry of a divorce decree. Given appellant’s course of action, it is apparent that appellant wished to proceed with the divorce action. Without a divorce decree, appellant would be unable to enforce the equitable distribution order. See Dech, supra. Moreover, we note that appellant has permitted appellee to incur expenses in pursuing her equitable distribution claim. See Pennsylvania R. Co., 335 Pa. at 455, 6 A.2d at 912 (“[W]aiver [of right to judgment of non pros ] will more clearly appear where defendant permits plaintiff to incur the expenses of preparation for trial before making any complaint.”).

Appellant also contributed to any delay by filing a premature appeal to this Court. Prior to filing his first notice of appeal, appellant filed an answer to appellee’s complaint, admitting that the marriage is irretrievably broken. Appellee filed an affidavit of consent and Section 201(d) affidavit in September, 1985. In response, no affidavits were filed. Instead, appellant appealed to this Court preventing appellee from proceeding with the divorce until the per curiam order was docketed with the trial court on August 14,1986. In light of this procedural irregularity created by appellant, the entry of the divorce decree was delayed by a period of approximately one year. Consequently, we conclude that appellant waived his right to a judgment of non pros and, accordingly, affirm the trial court’s order effectively denying appellant’s motion.

Appellant next asserts that, contrary to Wolk v. Wolk, 318 Pa.Super. 311, 464 A.2d 1359 (1983), the trial court permitted bifurcation pro forma by conducting a hearing on issues of equitable distribution prior to the entry of a divorce decree. We find appellant misconstrues the concept of “bifurcation” under the Divorce Code and, consequently, find Wolk inapplicable. In Wolk, the trial court entered a divorce decree prior to adjudicating the parties’ property rights. This Court held that the trial court’s decision to bifurcate economic claims from divorce claims should not be made pro forma. Instead, the trial court must “[assemble] adequate information, thoughtfully stud[y] this information, and then [explain its] decision regarding bifurcation ...” Id., 318 Pa.Superior Ct. at 318, 464 A.2d at 1362. Finding that the trial court based its decision to bifurcate upon an accepted practice in Allegheny County rather than exercising its discretionary power, we remanded for a hearing. In reaching our decision, this Court first considered whether the Divorce Code permitted bifurcation, and found that the following language of the Divorce Code and the Pennsylvania Rules of Civil Procedure indicated “a legislative awareness that situations could arise in which a single order would not suffice.” Id., 318 Pa.Superior Ct. at 314, 464 A.2d at 1360:

... In the event that the court is unable for any reason to determine and dispose of the matters provided for in this subsection within 30 days after the master’s report has been filed, it may enter a decree of divorce or annulment ...

Act of April 2, 1980, P.L. 63, No. 26, § 401, 23 P.S. § 401(b) (emphasis added).

(c) The court need not determine all claims at one time but may enter a decree adjudicating a specific claim or claims.

Pa.R.C.P. No. 1920.52(c), adopted June 27, 1980, effective July 1, 1980 (emphasis added). Accordingly, the Wo Ik court found that the legislature’s intent is to permit bifurcation.

It is evident from Wolk and the foregoing provisions that bifurcation of claims under the Divorce Code does not occur until the trial court enters a divorce decree while reserving economic claims for later determination. Instantly, appellant does not argue that the trial court erred in entering an order resolving a specific claim pro forma. Instead, appellant maintains that the trial court erred in failing to conduct a hearing on the consequences of having a master’s hearing on equitable distribution take place prior to an entry of a decree in divorce. No Wolk hearing is required. We, therefore, find no error.

Appellant further maintains that the trial court erred in denying his motion for bifurcation and rehearing. Specifically, appellant argues that: (1) bifurcation of the economic issues from the divorce claim and (2) a rehearing on the economic issues were necessary to avoid the inequities resulting from the delay of the entry of the divorce decree, as found by the trial court. In its opinion regarding appellant’s motion to dismiss, the trial court stated:

By delaying the entry of a final decree in divorce, the Plaintiff has frustrated the Defendant from offering proof of the economic circumstances of the parties at the time the division of property would become effective. The uncontradicted testimony of the Defendant at hearing on this matter has proven that during the period of delay, the property intended to be set apart to him in the distribution has greatly lessened in value; that the real estate has depreciated; that the value of cattle has depreciated; and, that his income has been reduced at least $20,000.00 per year due to declining milk prices. He is saddled by an order for the payment of alimony pendente lite that, by reason of the Court’s prior orders, will not end until the divorce is final. He cannot operate his farm business properly due to the fact that he cannot use the equity in loan transactions; and, cannot otherwise make business decisions while the equitable distribution matter is pending. The testimony of expert witnesses regarding valuation of the farm real estate, cattle and equipment is stale; and, long removed in time from the date of distribution or potential distribution.

Opinion at 4. We find the trial court was correct in denying appellant’s motion. A motion for bifurcation cannot be used as an avenue to relitigate economic issues. To prevent the inequities of which appellant complains, it was necessary to object to appellee’s praecipe. Having made no timely objection, appellant has waived his right to a rehearing.

Appellant next maintains that the trial court erred in finding that Pa.R.C.P. No. 1920.53(a)(1) is inapplicable to this action. Appellant argues that, because the instant case was improperly bifurcated by the trial court, the time constraints specified in Pa.R.C.P. No. 1920.53(a)(1) for the filing of a master’s report in a contested divorce action applies. Again, appellant’s argument is based upon a misunderstanding of the concept of bifurcation. As discussed previously, no bifurcation occurred when the trial court ordered a master to conduct a hearing on equitable distribution. Assuming the trial court did enter a bifurcated divorce decree pro forma and, thereafter, a master’s hearing on economic issues was held, Rule 1920.53(a)(1) would not apply to the subsequent filing of the master’s report. Rule 1920.53(a)(1) reads:

(a) In an action in which the action of divorce or for annulment and any claim which may be joined under the Divorce Code are heard by a master,
(1) the master shall file the record and a transcript of the testimony together with the report and recommendation within twenty days after the hearing in uncontested actions and, in contested action, within thirty days after the receipt of the transcript by the master.

Pa.R.C.P. No. 1920.53(a)(1) (footnote omitted). We note the foregoing language neither explicitly states nor implies that a trial court’s noncompliance with Wolk renders the time constraints of the instant rule applicable. Rule 1920.-53(a)(1) applies when the master actually hears the divorce claim “and any claim which may be joined under the Divorce Code.” In the instant case, the master’s hearing only pertained to the economic issues. The master did not hear the divorce claim. Consequently, Rule 1920.53(a)(1) does not apply.

Finally, appellant maintains that the trial court abused its discretion in affirming the master’s report. After a careful review of the record and testimony presented, we conclude that the trial court properly exercised its discretion in affirming the master’s report.

Order affirmed.

      . 23 P.S. § 201(c) provides:

        (c) It shall be lawful for the court to grant a divorce where a complaint has been filed alleging that the marriage is irretrievably broken and 90 days have elapsed from the date of filing of the complaint and an affidavit has been filed by each of the parties evidencing that each of the parties consents to the divorce.

      . 23 P.S. § 201(d) provides:
      (d)(1) It shall be lawful for the court to grant a divorce where a party has filed a complaint and an affidavit alleging that the parties have lived separate and apart for a period of at least three years, and that the marriage is irretrievably broken, and:
      (i) the respondent does not deny the allegations set forth iri the affidavit; or
      (ii) the respondent denies one or more of the allegations set forth in the affidavit, but after notice and hearing, the court determines that the parties have lived separate and apart for a period of at least three years and that the marriage is irretrievably broken.

      . This appeal is properly before us in light of our decisions in Campbell v. Campbell, 357 Pa.Super. 483, 516 A.2d 363 (1986) (en banc ), and Verdile v. Verdile, 370 Pa.Super. 475, 536 A.2d 1364 (1988).

      . Within the same argument, appellant contends that he was prejudiced by a premature hearing on the economic claims. Appellant fails to list this issue in his Statement of Questions Involved. Consequently, this issue is waived. Pa.R.A.P. 2116. We also find that appellant did not preserve this issue for appellate review by failing to object to appellee’s praecipe. In any event, we note that it is preferable practice to conduct a hearing on economic issues subsequent to or contemporaneous with the hearing on the divorce claim.

      . Bifurcation also occurs when the trial court enters an equitable distribution order without dissolving a parties’ marriage; however, the better practice is to grant a divorce decree prior to the entry of the equitable distribution order. See Dech, 342 Pa.Super. at 22, 492 A.2d at 43 (footnote omitted) (”[T]he entry of a divorce decree is a [Divorce] Code prerequisite to an order for alimony or equitable distribution of marital property.").

      . Appellant also contends that the trial court erred in granting a divorce decree incorporating the previously vacated equitable distribution orders. Despite appellant’s different approach in framing the issues, his argument is the same and will be treated accordingly.

      . We note that several of appellant’s contentions regarding appellant's final argument were not properly preserved for appellate review in that they were either not included or were not precisely set forth in appellant’s exceptions. Consequently, they are waived. Pa.R.C.P. No. 1920.55(a); see LaBuda v. LaBuda, 349 Pa.Super. 524, 537, 503 A.2d 971, 978 (1986) (Superior court will not address issues not covered in exceptions); see Barner v. Barner, 364 Pa.Super. 1, 17, 527 A.2d 122, 130 (1987) (appellant’s argument is waived where appellant’s exception stated mere assertion).


source: Caselaw Access Project

license: Public Domain

text:
    556 A.2d 403
    COMMONWEALTH of Pennsylvania v. Morris WILLIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 26, 1989.
    Filed March 23, 1989.

      Daniel M. Preminger, Philadelphia, for appellant.
    Catherine Marshall, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before BROSKY, McEWEN and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

This is an appeal from judgment of sentence after appellant was convicted by a jury of first degree murder and criminal conspiracy. Appellant presents four issues for our review: (1) whether the evidence was insufficient to establish beyond a reasonable doubt that appellant was either a principal, an accomplice, or a conspirator in Reynolds’ murder; (2) whether the trial court committed reversible error when it allowed the Commonwealth to introduce into evidence the unredacted prior recorded testimony of Francine Williams; (3) whether the trial court committed reversible error when it refused to instruct the jury to consider whether Williams was an accomplice in the murder of Reynolds; and (4) whether a new trial is required because of prosecutorial misconduct during final argument to the jury. For the reasons below, we affirm.

On December 28, 1985, appellant was found guilty by a jury of first degree murder and criminal conspiracy. After a penalty hearing held on December 81, 1985, the jury imposed a life sentence for murder. At the formal sentencing on September 8, 1986, the trial court denied post-trial motions and imposed the life sentence for first degree murder and a ten-to-twenty year consecutive term of imprisonment for criminal conspiracy. On September 17, 1986, after reconsideration, the trial court reduced the prison term for conspiracy to five-to-ten years. This appeal is before us.

Appellant first argues that the evidence was insufficient to support his conviction for first degree murder and conspiracy. The standard for reviewing a sufficiency of the evidence claim is well established:

[Wjhether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt____ The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence ... Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered ... Finally, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to belive all, part or none of the evidence. (Citations omitted.)

Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986), quoting Commonwealth v. Harper, 485 Pa. 572, 576-577, 403 A.2d 536, 538-539 (1979).

The Commonwealth aptly summarizes the evidence presented at trial as follows:

[0]n the evening of August 31, 1983, Craig Murphy, sitting in his black and silver Lincoln Continental at 15th and Clearfield Streets in Philadelphia, told Bernard Williams to take a ride with him. After Murphy made a telephone call in a nearby phone booth, he drove Williams to the Motorcycle Club, a gambling house at Germantown and Hilton Avenues, which both men entered. Williams left the club about thirty minutes later and went to the Mark V lounge across the street____ At approximately 10:30 p.m. that evening, Keith Johnson saw Murphy and co-defendants Rodney Wells, Ford Howard, and Esau Burroughs plotting in the front room of the Motorcycle Club “how they were going up Nicetown to kill this guy Muscles____” Murphy and co-defendant Howard were showing co-defendants Wells and Burroughs their guns. Johnson heard [Howard] state that he was “going up there to kill the [m_____f_____]” and that “he wasn’t going to be playing”.... After witnessing this exchange, Johnson entered another room to gamble, but returned to the room where the co-conspirators were about five minutes later. There, he heard co-defendant Ford Howard repeat how he was going to shoot the victim. Howard, Rodney Wells and Craig Murphy, all armed with guns, then left the club house ... and got into the car____ After they left, Johnson asked co-defendant Burroughs, who had remained at the club, if the cohorts really were going to kill someone and Burroughs confirmed the plan....
Bernard Williams, who was leaving the Mark V lounge at this time, saw Howard, Murphy and Wells as they exited the Motorcycle Club. Murphy told Williams to come with the three men, and Williams, who was uninformed of the murder plan, got in the back seat of the car. During the drive, Williams overheard Murphy speak to Howard about drugs, saying that he had “to take care of business” with the victim and Howard....
Upon arriving at Hubert and Westmoreland Streets, Murphy told Howard and Wells to get out of the car. Murphy backed up the car to Hubert Street, told Williams to get in the front seat, and then walked down the street. Several minutes later, Williams, who had remained in the car, heard three gunshots. Three or four minutes after the shots, Murphy returned to the car without Ford Howard or Rodney Wells____ Williams asked Murphy if he had heard the gunshots, and Murphy responded, “Yeah,” and also confirmed that he had taken “care of [his] business”.... Murphy then drove back to 15th and Clearfield where Williams left the car ....
Officer Leslie Gunter, on patrol in the 2100 block of West Ontario Street between 12:15 and 12:35 a.m. on September 1, 1983, heard what he believed to be four or five firecrackers. Seconds later, the officer received a radio report of gunshots from the playground at 20th and Ontario Streets. Gunter arrived at this location within minutes of receiving the radio call and after searching the area, discovered the victim, James “Muscles” Reynolds, lying on the ground on the side of the playground. The officer saw bullet wounds in the back of the victim’s head and near his left eyebrow ..., and arranged the transportation of the victim to Temple Hospital where he was pronounced dead. While securing the crime scene, Officer Gunter saw defendant Morris Willis and his brother standing on the comer of 20th and Ontario watching the activity____
At about 2:00 a.m., on September 1, 1983, Ford Howard, Rodney Wells and Craig Murphy returned to the Motorcycle Club, kicked open the door and entered, brandishing their .38 guns. Howard announced to Esau Burroughs, who was already at the club, that he had shot the victim in the head, and Rodney Wells confirmed that the victim was dead. Howard then gave Burroughs his .38 firearm. At that point, Murphy ordered them to “get the hell out of there” because police were on Germantown Avenue, and Howard, Wells and Murphy left the club____
Earlier on the night of the shooting, around midnight, defendant, who worked in Craig Murphy's drug distribution operation selling cocaine, telephoned the victim and the victim's wife, Sonia Máckie. Defendant told the victim and Mackie to meet him at the park at 20th and Ontario Streets to speak to Murphy about $800 the drug operation owed the victim. Mackie decided to stay home, however, and the victim went to the playground alone. When defendant arrived at 20th and Ontario, he told the victim to go into the park and wait while defendant got a package from his house. While on his porch steps, defendant heard gunshots, and immediately called Ms. Mackie to tell her that her husband had been shot in the playground. Mackie saw defendant at the park when she went there to verify his telephone call, and later confronted defendant at the police station because she believed he had telephoned the victim to “set him up” to be murdered. Ms. Mackie also testified that Ford Howard subsequently showed her the gun used to kill her husband, admitted that he had been present at the murder, and informed her that Murphy had ordered him to kill her too....
After the police transported the victim to Temple Hospital, defendant arrived soon thereafter and asked Officer Ernnan Hendricks if the victim was “dead.” The officer replied that he did not know the victim's medical status. Defendant subsequently repeated his inquiry, explaining that because there were no police at the murder scene, he had come to the hospital with his questions. Officer Hendricks, who was aware that other officers were indeed present at the crime scene, became suspicious and asked defendant if he would speak to homicide detectives about the matter, and defendant agreed.
Defendant voluntarily made a statement to Detective Joseph Brignola approximately one hour after the murder in which he denied any knowledge of the offense or the identity of the killers, and insisted that he had not “set up” the victim. Although defendant admitted that he owed the victim $800, he claimed that he telephoned the victim a few hours before his death to arrange a meeting so the victim could “test” some of defendant’s cocaine. According to defendant’s statement, he and the victim went to a “shooting gallery” at 20th and Westmoreland Streets to try the cocaine, and afterwards, at the victim’s own suggestion, they went to the playground at 20th and Ontario. Defendant claimed that the victim volunteered to wait in the park while defendant obtained more cocaine from his home nearby. Inside his house, defendant heard the three gunshots which resulted in the victim’s death. Detective Brignola testified that he did not believe defendant’s statement and accused him of lying.
Six or seven hours after his statement to Detective Brignola, defendant announced that he was leaving for California, claiming that he was afraid he too would be killed. Officer Raymond Thomas verified that, after that point, he lost regular contact with defendant (who had acted as an informant for him in the past) for approximately one year. Detective John Cimino testified that in May 1985, he arrested defendant in San Bernardino, California. Subsequently, in November 1985, defendant telephoned Officer Thomas and asked if the officer recalled a conversation with defendant the day after the murder and also inquired about the substance of Officer Crawley’s testimony. Officer Thomas refused to discuss the matters with defendant____
Medical Examiner Dr. Paul G. Hoyle testified that the cause of the victim’s death was seven gunshot wounds, three to the head, four to the trunk and arms, and the manner of death was homicide. Dr. Hoyle’s examination of the victim’s body also revealed no evidence of recent narcotic use, particularly not within the last few hours of his life, contrary to defendant’s statement to the police that the victim had tested some cocaine for him just before his death____

Appellee’s brief at 3-9 (citations and footnotes omitted). It is evident that appellant agreed to participate in the victim’s murder and aided his co-conspirators accomplishing that end. There is sufficient evidence to support the conclusion that appellant telephoned the victim just prior to the killing to lure him to the playground, where the gunmen waited, by promising the return of $800 owed him by Murphy’s drug operation. In addition, the jury could have reasonably inferred that appellant subsequently checked the victim’s medical status at the hospital to determine the success of the murder plan, and then fled the jurisdiction to avoid prosecution. Given the standard of appellate review applicable in appeals from convictions, we find the evidence was sufficient to support appellant’s convictions.

Second, appellant contends that the trial court committed reversible error when it allowed the Commonwealth to introduce into evidence the unredacted prior recorded testimony of Francine Williams. Specifically, appellant maintains that the trial court erred in admitting Francine Williams’ prior recorded testimony because appellant had no opportunity to cross-examine the witness. Francine Williams testified at the first trial of co-defendant Rodney Wells which resulted in a mistrial in June, 1985. In the instant case, after an in camera evidentiary hearing to determine the unavailability of the witness, the trial court permitted Detective Brignola to read the prior recorded testimony to the jury to be considered against Wells. The Commonwealth aptly summarized the prior recorded testimony as follows:

[0]n the night of the murder, which was located directly across from the playground at 20th and Ontario Streets. She saw a man, who resembled co-defendant Rodney Wells, approach defendant’s house next door and ask “where was his brother Morris.” The man then walked back toward the playground. Approximately fifteen minutes later, Ms. Williams saw the victim enter the playground after speaking with defendant. At that point, Williams heard three gunshots from “close by” and additional gunfire when she went inside her sister’s house. During her subsequent police interview, Ms. Williams recounted what she had witnessed and identified a photograph of Rodney Wells as resembling the man who had gone to defendant’s house on the night of the murder. Williams also testified that she was not certain of her identification of Rodney Wells because it was dark and she did not fully see his face on the night of the murder____

Appellee’s brief at 13 (citations omitted).

It is well established that “the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him.” Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923, 926, (1965). Furthermore, in Pennsylvania, 42 Pa.C.S.A. § 5917 provides for the admission of former testimony of a witness in a criminal case provided, inter alia, the defendant was present at the time the former testimony was taken and had an opportunity to examine or cross-examine the witness. Commonwealth v. Galloway, 476 Pa. 332, 336, 382 A.2d 1196, 1198 (1978).

Instantly, the record indicates that Ms. Williams’ testimony was admitted solely against co-defendant Rodney Wells. Immediately following the detective’s reading of Ms. Williams testimony, the trial court instructed the jury as follows:

Ladies and gentlemen of the jury, once again, I want to remind you that this testimony that was read to you by Francine Williams was in a prior proceeding, prior to this trial, and that was a proceeding the Commonwealth versus Rodney Wells.
The other defendants, Ford Howard, Morris Willis and Esau Burroughs were not a part of that proceeding. Therefore, I’m directing you that you consider this evidence or this testimony, of Francine Williams, as to Rodney Williams only. And you must not consider it against Ford Howard, Morris Willis or Esau Burroughs.

N.T., 12/18/85 sit 92. Given these circumstances, we find the trial court did not err in admitting Ms. Williams’ prior testimony. Ms. Williams was not a witness against appellant Consequently, appellant’s constitutional right to confrontation was not violated nor were the statutory requirements of 42 Pa.C.S.A. § 5917 applicable to appellant.

In Bruton [v. U.S., 891 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)], co-defendant Evans’ confession, which implicated Bruton in a robbery, was read to the jury. The trial court, in accord with Delli Paoli v. U.S., 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), admitted the confession unedited and cautioned the jury that Evans’ confession was inadmissible hearsay against Bruton and was to be considered only against Evans. Evans exercised Ms privilege not to testify. The Supreme Court set aside Bruton’s conviction, overruling Belli Paoli because “of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining [Bruton’s] guilt.” 391 U.S. at 126, 88 S.Ct. at 1622. The Court emphasized that Evans’ statement was “powerfully incriminating” as to Bruton since it directly inculpated him in the crime and that Evans’ confession “added substantial, even critical, weight to the Government’s case.” [I]d. at 128, 88 S.Ct. at 1623. The Court thus held that Bruton had been denied his right of confrontation since Evans’ extrajudicial statement inculpating him went to the jury without Bruton having the opportunity to cross-examine Evans.

Commonwealth v. Rawls, 276 Pa.Super. 89, 94, 419 A.2d 109, 111 (1980). In the case sub judice, any references to defendant in Ms. Williams recorded testimony were not “powerfully incriminating” nor added “substantial, even critical, weight” to the Commonwealth’s case. Appellant’s own voluntary statement to the police, which was introduced at trial, essentially corroborates Ms. Williams’ prior recorded testimony. In addition, we do not find Ms. Williams’ tentative identification of Wells as the individual at appellant’s house critical to appellant’s conviction. There was other evidence that established appellant’s complicity in the murder. This evidence included appellant’s telephone call to the victim and his wife to lure them to the playground, and co-defendant Howard’s subsequent admission that they had planned to kill Ms. Mackie as well, had she accompanied the victim as appellant had requested. The prosecutor’s summation further illustrates that Ms. Williams’ identification was not critical to the Commonwealth’s case. The prosecutor referred to Francine Williams’ testimony only to the extent that it implicated co-defendant Wells by placing him near the scene of the crime. No mention was made of Wells’ presence at appellant’s house. Accordingly, we find no confrontation violation occurred.

Third, appellant argues that the trial court committed reversible error when it refused to instruct the jury to consider whether Williams was an accomplice in the murder of Reynolds. This issue was raised by co-defendant, Ford Howard, in Commonwealth v. Howard, 375 Pa.Super. 43, 543 A.2d 1169 (1988). Based upon the same record, this Court concluded that the trial court correctly determined that Williams was not an accomplice to the murder and, accordingly, no error occurred when the trial court refused to so charge the jury. Id., 375 Pa.Superior Ct. at 50, 543 A.2d at 1173. W@ find no reason to reconsider this claim. Accordingly, appellant’s claim is without merit.

Finally, appellant argues that a new trial is required because of prosecutorial misconduct during final argument to the jury. Specifically, appellant maintains that the prosecutor committed misconduct: (1) by referring to the fact that Craig Murphy had already been convicted for his participation in the victim’s murder; and (2) by placing his trial file boxes, which were marked with all five conspirators’ names, in the courtroom. Again, this Court, based upon the same record, addressed these issues in Howard. Regarding the reference to Craig Murphy and other co-conspirators, this Court found that the reference was not “fatally prejudic[al].” With respect to the prosecutor’s use of the trial boxes, this Court agreed with the “conclusion of the trial court that the presence of the box did not so sway the passions of the jury as to have rendered them incapable of weighing the evidence and rendering a true verdict.” Id., 375 Pa.Superior Ct. at 56, 548 A.2d at 1176. We find no basis to reconsider appellant’s contentions. Consequently, appellant is not entitled to a new trial.

Judgment of sentence is affirmed.

      . Appellant’s original appeal was dismissed by this Court for failure to file a Pa.R.A.P. 1925(b) statement pursuant to a trial court order. Represented by new counsel, appellant filed a petition under the Post Conviction Hearing Act, 42 PA.C.S.A. 9541 et seq., alleging trial counsel’s ineffectiveness for failing to file a Rule 1925(b) statement. Thereafter, the trial court granted appellant the right to file the statement nunc pm tunc.

      . Appellant argues that appellant's flight from the jurisdiction does not support an inference of guilt because he did not know he was wanted in connection with the crimes at issue. We disagree.
      When a person commits a crime, knows that he is wanted therefor, and flees or conceals himself, such conduct is evidence of consciousness of guilt, and may form the basis in connection with other proof from which guilt may be inferred.

        Commonwealth v. Osborne, 433 Pa. 297, 302, 249 A.2d 330, 333 (1969) (citation omitted). Instantly, the Commonwealth showed that: (1) after the police transported the victim to the hospital, appellant arrived soon thereafter and asked a police officer if the victim was "dead;” (2) appellant voluntarily made a statement to Detective Brignola who, after the statement was made, accused appellant of lying; (3) six or seven hours after his statement to Detective Brignola, appellant announced that he was leaving for California; and (4) for approximately one year, Officer Raymond Thomas lost regular contact with appellant who had acted as an informant for the officer in the past. This was sufficient evidence from which the jury could reasonably infer that appellant knew he was subject to prosecution and, therefore, fled.

      . Appellant also maintains that the Commonwealth failed to prove that the notes of testimony were authentic. Specifically, appellant maintains that the court stenographer who transcribed Ms. Williams’ testimony was required to testify regarding the content and accuracy of the notes of testimony. We disagree. Ms. Williams’ testimony was transcribed by an official court reporter. Consequently, there was no need to have the reporter testify as to the accuracy of the notes. Commonwealth v. Weitkamp, 255 Pa.Super. 305, 386 A.2d 1014 (1978); Ingram v. Pittsburgh, 346 Pa. 45, 29 A.2d 32 (1942).

      . 42 Pa.C.S.A. § 5917 provides in pertinent part:
      Whenever a person has been examined as a witness, either for the Commonwealth or for the defense, in any criminal proceeding conducted in or before a court of record, and the defendant has been present and has had an opportunity to examine or cross-examine, if such witness afterwards die, or is out of the jurisdiction so that he cannot be effectively served with a subpoena, or if he cannot be found, or if he becomes incompetent to testify for any legally sufficient reason properly proven, notes of his examination shall be competent evidence upon a subsequent trial of the same criminal issue.

      . Appellant contends that the trial court’s final charge contradicted the trial court’s instant instructions. We disagree. In its final instructions, the trial court stated that the jury could consider only the evidence that came from the witness stand. The trial court, however, informed the jurors that this general rule did not apply to the recorded testimony of Francine Williams and, therefore, the jurors could consider Williams’ testimony despite her unavailability to testify. We agree with the Commonwealth that the trial court’s final charge was consistent with its earlier instructions. The jurors were already aware that Ms. Williams’ recorded testimony was admissible only against co-defendant Wells, and the trial court's final instruction advised them only that her testimony could not be considered inferior to the other evidence presented simply because she was not present at trial. See Commonwealth v. Newman, 323 Pa.Super. 394, 401, 470 A.2d 976, 980 (1984) (charge to jury must be read as a whole and will be found adequate if it reflects the law and is sufficient to guide the jury in its deliberations).

      . The prosecutor stated, “One down and four to go.”


author: POPOVICH, Judge:

text:
    556 A.2d 409
    David ARTZT, Appellee, v. Karen ARTZT, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1988.
    Filed March 27, 1989.

      Karen Artzt, in propria persona.
    Robert M. Rosenblum, Stroudsburg, for appellee.
    Before CAVANAUGH, McEWEN and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the order of July 15, 1986, awarding physical custody of the parties’ minor daughter, Jennifer, to the appellee, David Artzt.

Shortly after the entry of the order in question, an appeal was taken by Karen Artzt to this court. However, the substantive issues of the appeal were not addressed by this court. Since the Honorable Harold A. Thomson, Jr., President Judge of the 60th Judicial District, neglected to write an opinion in support of the custody order, we remanded the case to allow the court below to file a comprehensive opinion which would include a thorough analysis of the record, findings of facts and conclusions of law. Artzt v. Artzt, 371 Pa.Super. 637, 534 A.2d 125 (No. 2161 Philadelphia 1986, filed September 21, 1987). Effective appellate review in custody disputes requires that the hearing court file a complete and comprehensive opinion which contains an exhaustive analysis of the record and specific reasons for the court’s ultimate decision. See Harner v. Harner, 330 Pa.Super. 343, 479 A.2d 583 (1984); Berresford v. Berresford, 308 Pa.Super. 278, 454 A.2d 129 (1982). When no such opinion is filed, remand for filing of an opinion by the lower court is mandated. Delbaugh v. Delbaugh, 337 Pa.Super. 587, 487 A.2d 417 (1985); Commonwealth ex rel. Leighann A. v. Leon A., 280 Pa.Super. 249, 421 A.2d 706 (1980).

On March 27, 1987, the Honorable Robert J. Conway, President Judge of the 22nd Judicial District, was appointed to preside specially over this remanded matter. Eventually, on August 3,1988, Judge Conway filed an opinion which stated:

[T]his Court did not begin presiding over the above-captioned matter until March 27th, 1987. It was President Judge Harold A. Thomson, Jr., who issued the July 15th, 1986 Order. Because of that fact, this court cannot provide the Superior Court with any further insight into the above-captioned matter than has already been given herein.
Further, this Court has been unable to locate, at the Pike County Prothonotary’s office, notes of testimony from the June 25th, 1986 hearing, or the report of Dr. Gardner, mentioned in the July 15th Order. For these above reasons, this Court is unable to present the Superi- or Court with a comprehensive analysis of reasons in support of the Court’s Order of July 15th, 1986.
Finally, this Court suggests that the issue of whether the trial court abused its discretion by continuing placement of the minor child in the physical custody of her father beyond the completion of the school year is now moot. The reason being, Jennifer since November 4th, 1987, has been in the legal custody of the Court with physical custody in Northern Tier Diagnostic Center.

Judge Conway went on to note that “this Court [has] recused itself and Senior Judge Donald O’Malley was appointed to handle further proceedings.”

Instantly, we are presented with a situation immeasurably worse than when this appeal first appeared before us over two and one-half years ago. To say the record before us is woefully incomplete is a conservative understatement: large sections of the record are missing; a transcript of the custody hearing of June 25, 1986, upon which the order in question was based, is missing; the one-hundred plus page psychological report of Dr. Gardner is missing; and the comprehensive opinion has not been written. Further, the appellant’s assertion that Judge Conway declared her child dependent and placed her under the legal custody of the court appears substantiated by Judge Conway’s opinion. However, the record is devoid of any evidence of an official dependency adjudication and disposition.

The inherent difficulties in custody matters have been exacerbated by the “revolving door” of judges presiding over this case. The first judge failed to file an opinion in support of the custody order. The second judge, due to the state of the record before him, was unable to comply with our directive to file a comprehensive opinion in support of the custody order. Now, a third judge has been assigned to this case, and, in reality, he too will be unable to provide us with any further insight into this matter without an vastly improved record.

Further, this case is a sorrowful example of a custody suit where the parents have placed their personal differences above the best interests of their child. Even from the minimal record sub judiee, it is abundantly clear that the litigants have continuously used their teenage daughter as a weapon against one another with shameful disregard for the obvious strain placed upon her.

In custody matters, our paramount concern is the best interest and welfare of the child; all other considerations are deemed subordinate to the child’s well-being. Fisher v. Fisher, 870 Pa.Super. 87, 535 A.2d 1163 (1988). To remand this case a second time in order to grant a third judge an opportunity write the first comprehensive opinion in support of this custody order would be fruitless and would not serve the best interest of Jennifer in light of the record before us. In Kozlowski v. Kozlowski, 362 Pa.Super. 516, 524 A.2d 995 (1987), we noted that a two-year old record in a custody action is not “up-to-date” and cannot possibly reflect “what is currently in the children’s best interest.” Clearly, the record before us is similarly stale. Thus, remand to the lower court is our only option since our broad scope of review does not vest this Court with the duty or the privilege of making our own independent custody determination. Lombardo v. Lombardo, 515 Pa. 139, 527 A.2d 525 (1987). Rather than usurp the factfinding function of the lower court, we will remand this case for an evidentiary hearing and entry of a custody order consistent with Jennifer’s best interest.

The record indicates that circumstances have substantially changed since the entry of the order; for example, as we noted earlier, Jennifer presently may be in the legal custody of the court. Further, common sense dictates that the circumstances underlying the custody order must have changed during the two years and seven months which have passed since entry of the disputed order. It is axiomatic that child custody orders are temporary in nature and subject to change if new circumstances affect the welfare of the child. Parker v. MacDonald, 344 Pa.Super. 552, 496 A.2d 1244 (1985). Since circumstances have changed substantially since the entry of the custody order in July of 1986, we will remand this case for a hearing to reconsider the merits of the previous order. Karis v. Karis, 518 Pa. 601, 544 A.2d 1328 (1988); Snarski v. Krincek, 372 Pa.Super. 58, 538 A.2d 1348 (1988); Fatemi v. Fatemi, 339 Pa.Super. 590, 489 A.2d 798 (1985). Given the incomplete state of the record and the changed circumstances of this case, we cannot rule on the substantive issues raised by the appellant. Rather, the only reasonable solution is to remand this custody case for an evidentiary hearing before Judge O’Malley. The custody hearing must be held within twenty days of the court’s receipt of the record, and the custody order must be entered within ninety days thereafter. Pa.R.App.P. Rule 2591(b).

Case remanded for proceedings consistent with this Opinion. Jurisdiction is relinquished.

      . For reasons not revealed in the record before us, the Supreme Court of Pennsylvania approved a Request for Assignment of Judge. The appellant asserts that Judge Thomson recused himself from this case. However, the reasons for Judge Thomson’s recusal do not appear in the record.

      . The reasons for Judge Conway’s recusal do not appear in this record.


author: DEL SOLE, Judge:

text:
    556 A.2d 412
    COCO BROS., INC., Appellant, v. The BOARD OF PUBLIC EDUCATION OF the SCHOOL DISTRICT OF PITTSBURGH, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 29, 1988.
    Filed March 21, 1989.
    James R. Cooney, Pittsburgh, for appellant.
    Marvin A. Fein, Pittsburgh, for appellee.
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

Appellant appeals a trial court order which denied its petition for writ of mandamus. Because of the nature of this appeal, we find it necessary to transfer this case to the Commonwealth Court for resolution.

The applicable section of the Judicial Code establishes the appellate jurisdiction of the Commonwealth Court in cases concerning local government matters. It provides:

§ 762. Appeals from the courts of common pleas
(a) General rule. — Except as provided in subsection (b), the Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in the following cases:
(4) Local government civil and criminal matters.—
(i) All actions or proceedings arising under any municipality, institution district, public school, planning or zoning code ... or where is drawn in question the application, interpretation or enforcement of any:
(a) statute regulating the affairs of political subdivisions, municipality and other local authorities or other public corporations or of the officers, employees or agents thereof, acting in their official capacity;

42 Pa.C.S.A. § 762.

This case, which arose out of a dispute over the renovation of a high school building, meets the above description of those cases which are within the province of the Commonwealth court. Its resolution necessarily calls into question the application, interpretation and enforcement of statutes regulating the affairs of a political subdivision, the school district.

Appellant filed its Petition for Writ of Mandamus Execution in accordance with a procedure mandated by 24 P.S. § 6-611 for satisfying a judgment against a school district. The relevant statutory provision is entitled: “Enforcement of judgments against school districts” and it sets forth the proper procedure for collection of an unpaid judgment obtained against a school district. The trial court refused to grant Appellant’s petition and directed the Prothonotary to mark the judgment against the Board of Public Education as satisfied. This ruling was based upon a conclusion that the procedure used to offset various arbitration awards against each other was proper and authorized by statute at 53 P.S. § 7232. Sections 7232 through 7234 of title 53 provide the procedure for setting off municipal claims against municipal obligations. The definitions found at 53 P.S. § 7231 specifically include school districts within the meaning of the term “political subdivisions”.

Since these statutory provisions, which clearly regulate the affairs of the school district in this matter, are called into question in this appeal, we find it appropriate to transfer this case to the Commonwealth Court for a determination of its merits. See Muncy Area School District v. Gardner, 91 Pa.Commw.Ct. 406, 497 A.2d 683 (1985).

Case transferred to Commonwealth Court.


author: CIRILLO, President Judge:

text:
    556 A.2d 413
    C-RICH CO. v. Charles DAVIS and Conshohocken Construction Company, Inc., Appellants.
    Superior Court of Pennsylvania.
    Argued Jan. 20, 1989.
    Filed March 28, 1989.

      Gary L. Azorsky, Philadelphia, for appellants.
    Marc D. Jonas, Norristown, for appellee.

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

This is an appeal from an order dated May 25, 1988, entered in the Court of Common Pleas of Montgomery County denying the petition of appellants, Charles Davis (Davis) and Conshohocken Construction Company, Inc. (Conshohocken), for leave to amend their petition to open or strike the judgment confessed against them.

The relevant procedural history may be summarized as follows: On December 10, 1987, appellee, C-Rich Company, entered judgment by confession against Davis and Conshohocken. Six days later, appellants filed a petition to strike or open the judgment and thereafter C-Rich filed its answer to the petition. On January 14,1988, the trial court entered an order allowing a maximum of sixty days for the completion of the discovery before the case could be listed for argument. In March, 1988, C-Rich filed an argument praecipe, and Davis and Conshohocken filed a petition to amend their earlier petition in order to include the following additional grounds for opening or striking the judgment entered against them:

(1) Respondent’s attorney was wholly without power or authority to enter his appearance on behalf of petitioners, and thus the judgment was entered invalidly and illegally and is without force or effect;
(2) The judgment was entered without a valid or legal appearance by or on behalf of petitioner Charles Davis, and thus respondent entered judgment in violation of 50 U.S.C.A. ... § 520 by failing to file with the court an affidavit of non-military service;
(3) The complaint in confession of judgment fails to set forth with sufficient specificity the alleged default upon which the judgment is based, in violation of Pa.R.C.P. 2952(e);
(4) The complaint in confession of judgment fails to set forth with sufficient specificity an itemized computation of the amount allegedly due, in violation of Pa.R.C.P. 2952(e);
(5) The warrant of attorney and confession of judgment clauses in the contracts upon which respondent bases its judgment are inconspicuously located in a section of the contracts entitled “Repossession,” conclude a lengthy sentence that appears to concern only instances of repossession, and are thus ambiguous, invalid and unenforceable as a matter of law;
(6) The affidavit of income executed by counsel for respondent and attached to the confession of judgment in the within action is inadequate as a matter of law, for it states only that petitioner Davis “is believed” to have an income in excess of $10,000.00, in violation of the rules of Montgomery County and petitioner’s right to due process of law guaranteed by the Constitution of the United States; and
(7) The entry of judgment by confession against petitioners deprives them of their right to due process of law guaranteed by the 14th Amendment of the Constitution of the United States.

C-Rich then filed an answer to appellants’ petition for leave to amend, and argument on that petition was scheduled. On May 25,1988, the Honorable Anita Brody entered an order dismissing appellants’ petition for leave to amend.

Following the filing of an appeal by Davis and Conshohocken, C-Rich filed a motion to quash the appeal with this court. This motion was denied by our court on August 23, 1988 and the parties were directed to address, in their appellate briefs, the issue of whether an order denying leave to amend a petition to open or strike a confessed judgment constituted a final order, as this question appears to be one of first impression in this Commonwealth.

On appeal, Davis and Conshohocken have asked us to consider the following two issues:

(1) Does an order denying leave to amend a petition to open or strike a confessed judgment constitute a final, appealable order where it results in waiver of the defenses sought to be asserted and thus puts the defendants “out of court” as to those defenses?
(2) Does the denial of leave to amend a petition to open or strike a confessed judgment constitute an abuse of discretion where allowance of the amendment would not delay consideration of the original petition or otherwise cause prejudice to the plaintiff, but denial of the amendment forever forecloses defendants from asserting meritorious defenses to the judgment?

In their first argument, Davis and Conshohocken contend that they sought leave to amend their earlier petition because Pa.R.C.P. 2959(a) requires that they assert all grounds for relief in a single petition and because, if they did not amend the petition and include the seven additional grounds for relief, according to Pa.R.C.P. 2959(c), those additional grounds would be waived. In support of their argument, Davis and Conshohocken rely upon Posternack v. American Casualty Co. of Reading, 421 Pa. 21, 218 A.2d 350 (1966), where the court held that an order denying leave to amend an answer to a complaint to assert affirmative defenses was not interlocutory as it puts the defendant out of court. Id., 421 Pa. at 24, 218 A.2d at 351. They also cite to cases which relied upon Posternack to buttress their position that the order, denying their petition for leave to amend the petition to open or strike the confessed judgment, is appealable. They rely upon cases such as Grota v. LaBoccetta, 425 Pa. 620, 230 A.2d 206 (1967) (where the court held that an order denying leave to amend defendant’s answer to include an affirmative defense, in the form of a release of one of several joint tortfeasors, was not interlocutory), Grim v. Betz, 372 Pa.Super. 614, 539 A.2d 1365 (1988) (where the court stated that because contributory negligence and assumption of the risk are affirmative defenses, and must be pleaded or are otherwise waived, a pretrial order denying defendant’s petition for leave to file an amended answer was a final and appealable order), and Zarnecki v. Shepegi, 367 Pa.Super. 230, 532 A.2d 873 (1987) allocatur denied, 518 Pa. 643, 542 A.2d 1371 (1988) (where the court held that a pretrial order which precluded defendant from presenting a possibly meritorious and complete defense in a mortgage foreclosure action was final and thus appealable).

C-Rich, on the other hand, contends that we must apply the rule set forth in Adcox v. Pennsylvania Manufacturer’s Association Casualty Insurance Company, 419 Pa. 170, 213 A.2d 366 (1965), to the facts in the present case. The court in Adcox held that an order striking an affirmative defense did not have the requisite finality to be an appealable order because the affirmative defense which was precluded by the pre-trial order involved pure questions of law. C-Rich thus argues that the defenses which were precluded by the May 25, 1988 order require no facts to be proven and involve pure questions of law. Moreover, C-Rich states that Davis and Conshohocken have admitted, in their petition for leave to amend, that these defenses involve purely legal questions. C-Rich thus concludes that according to Adcox the order denying appellants’ petition for leave to amend their petition to strike or open judgment is interlocutory.

In their statement of jurisdiction, within their brief, Davis and Conshohocken state that they are bringing this appeal pursuant to 42 Pa.C.S. § 742. Section 742 confers jurisdiction on this court to hear “all appeals from final orders of the court of common pleas. A final order is one which either ends the litigation or disposes of the entire case.” Katz v. Katz, 356 Pa.Super. 461, 465, 514 A.2d 1374, 1376 (1986), appeal denied, 515 Pa. 581, 527 A.2d 542 (1987). According to statutory authority, the order before us is not final.

There is, however, a line of cases, beginning with Adcox, enunciating a rule which has the effect of characterizing certain interlocutory orders as final orders. In Adcox, the court stated that when a pre-trial order precluded the assertion of affirmative defenses, which will be waived unless pleaded, and those defenses involved purely questions of law, an appeal from that order is interlocutory. Adcox, 419 Pa. at 174, 213 A.2d at 368. The following year, the court in Posternack relied upon Adcox but concluded that the pre-trial order in question effectively precluded proof at trial of matters which the trier of fact could have determined in favor of the pleader so as to provide him with a complete defense to the cause of action and held the order to be final and immediately appealable. Posternack, 421 Pa. at 23-24, 218 A.2d at 351.

Most recently, in Hull v. Tolentino, 517 Pa. 328, 536 A.2d 797 (1988), Justice Larsen, writing for our supreme court, clarified the rule set forth in Adcox and explained its ramifications. In Hull, the court addressed the issue of whether a pre-trial order which precludes a party from asserting an affirmative defense is final and appealable. Justice Larson set forth the Adcox/Posternack rule, stating:

This Court set forth in Adcox v. Pennsylvania Manufacturers Association Casualty Insurance Co., 419 Pa. 170, 213 A.2d 366 (1965), the rule that a pre-trial order precluding the assertion of an affirmative defense which raised pure questions of law is interlocutory and therefore unappealable; whereas a pre-trial order precluding the assertion of an affirmative defense which “prevented factual proof of matters which the trier of fact could have determined in favor of the pleader so as to provide him with a complete factual defense,” is final. 419 Pa. at 174, 213 A.2d at 368.

Hull, 517 Pa. at 330, 536 A.2d at 798. The court held that the pre-trial order in Hull was interlocutory because defendant Hull was only precluded from pleading a defense involving a question of law. After the court reached its holding, Justice Larsen stated:

The ramifications of this rule are obvious. If an affirmative defense turns on disputed facts and the trial court errs in precluding the assertion of that defense, the case must be retried if appellate review and a reversal occur after the entry of final judgment. Appellate consideration before trial in this circumstance would obviate the possible expense and burden of two trials. On the other hand, where an affirmative defense involves a question of law, the appellate court can simply apply the law to the outcome of the litigation should it find that the trial court abused its discretion in precluding the assertion of that defense.

Hull, 517 Pa. at 331, 536 A.2d at 798-99.

Because of the unique requirements governing judgments entered by confession, set forth in the Pennsylvania Rules of Civil Procedure, we believe that an appeal from an order denying a petition for leave to amend a petition to open or strike a confessed judgment is similar to the factual scenario dealt with by the courts in Adcox and Posternack.

Pa.R.C.P. 2959 provides, in pertinent part:

(a) Relief from a judgment by confession shall be sought by petition. All grounds for relief, whether to strike off the judgment or to open it, must be asserted in a single petition____
(c) A party waives all defenses and objections which he does not include in his petition or answer.

In addition, Pa.R.C.P. 2960 states:

If a judgment is opened in whole or in part the issues to be tried shall be defined by the complaint if a complaint has been filed, and by the petition, answer and the order of the court opening the judgment. There shall be no further pleadings. The right to a jury trial on the opened judgment shall be deemed waived unless a party files and serves a written demand for jury trial within twenty (20) days after the order opening judgment; but if the issue is referred to compulsory arbitration, Rule 1007.1 shall apply-

We believe that an analysis of the finality of the order denying leave to amend the petition to open or strike the confessed judgment is proper under the Adcox/Posternack rule. Thus we will apply the rule because Pa.R.C.P. 2959(a) and (c) provide that any defense or objections not set forth in the petition to open or strike will be waived. An application of this rule to the seven defenses sought to be included by way of amendment to the petition to open or strike the confessed judgment leads us to conclude that they raise pure questions of law, and that the order is interlocutory. These defenses question whether C-Rich’s attorney had authority to enter his appearance on behalf of Davis and Conshohocken; whether C-Rich entered judgment in violation of 50 U.S.C.App. § 520; whether the complaint complies with Pa.R.C.P. 2952(e); whether the sections of each contract providing for the warrant of attorney and confession of judgment are hidden and thus unenforceable as a matter of law; whether the language in the affidavit of income stating “it is believed” that Davis has an income greater than $10,000 is violative of Montgomery County Rules and the due process clause of the fourteenth amendment to the United States Constitution; and whether the entry of the judgment itself violates the due process clause of the fourteenth amendment. Because we find these defenses involve questions of law, we require that Davis and Conshohocken wait until after the disposition of their original petition to open or strike to file their appeal, if one is necessary.

Further, we believe that our decision today is consistent with the rationale set forth in Hull If the court decides, based upon the original petition to open or strike and the answer thereto, that the judgment should not be opened or stricken, Davis and Conshohocken can appeal, pursuant to Pa.R.A.P. 311(a)(1), from that order denying their petition. On appeal, they will be permitted to raise the unfairness of the denial of their petition for leave to amend, because they have preserved that issue for appellate review by merely filing such a petition. See Hull, supra (where our supreme court stated that after final judgment, an appellate court can then decide whether the trial court erred in striking defendant's amended new matter which asserted an affirmative defense). If, on the other hand, the court grants the original petition filed by Davis and Conshohocken and opens the judgment, Davis and Conshohocken will be permitted to try the issues that are defined by the complaint filed by C-Rich, the original petition, C-Rich’s answer, and the order of the court opening the judgment. See Pa.R.C.P. 2960. While Davis and Conshohocken will not have the benefit of raising the defenses they sought to include by way of amendment if a trial is required under Pa.R.C.P. 2960, they will be permitted to appeal from this judgment and raise the unfairness of the denial of their petition for leave to amend at that time, in the event that the trial results in an adverse judgment.

However, if the court decides to strike the judgment because there was a fatal defect on the face of the record, then the confessed judgment is completely destroyed and the rights of the parties are as if no judgment had ever been entered. See Parliament Industries, Inc. v. William H. Vaughan & Co., 501 Pa. 1, 459 A.2d 720 (1983); Haggerty v. Fetner, 332 Pa.Super. 333, 481 A.2d 641 (1984). See also Rufo v. Bastian Blessing Co., 420 Pa. 416, 218 A.2d 383 (1966). In such a ease, Bavis and Conshohoeken will have received the relief they requested and the issue of the precluded defenses will be moot.

Moreover, we feel strongly about the importance of avoiding piecemeal litigation. As our supreme court stated in Piltzer v. Independence Federal Savings and Loan Ass’n of Philadelphia, 456 Pa. 402, 319 A.2d 677 (1974), “the reason for prohibiting appeals from interlocutory orders is to preclude piecemeal determinations and the consequent protraction of litigation.”

Based on the aforementioned discussion, we quash the appeal before us as interlocutory.

Appeal quashed.

      . Pa.R.C.P. 2959 states, in pertinent part:
      (a) Relief from a judgment by confession shall be sought by petition. All grounds for relief, whether to strike off the judgment or to open it, must be asserted in a single petition. The petition may be filed in the county in which the judgment was originally entered, in any county to which the judgment has been transferred or in any other county in which the sheriff has received a writ of execution directed to him to enforce the judgment.
      (c) A party waives all defenses and objections which he does not include in his petition or answer.

      . In their petition for leave to amend their petition to open or strike, Davis and Conshohocken state:
      10. Each of the above stated grounds for relief constitute legal defenses for which no discovery is necessary or appropriate____

      . Pa.R.A.P. 311(a)(1) provides:
      (a) General Rule. Except as otherwise prescribed by general rule, an appeal may be taken as of right from:
      (1) Affecting Judgments. An order opening, vacating or striking off a judgment, or refusing to open, vacate or strike off a judgment. If orders opening, vacating or striking off a judgment are sought in the alternative, no appeal may be filed until the court has disposed of each claim for relief.

      . For a general discussion of the distinction between opening and striking a judgment entered by confession, see the concurring opinion of Judge Wieand in Malicia v. Proietta Catering & Cocktail Lounge, 270 Pa.Super. 342, 411 A.2d 751 (1979). Judge Wieand states that a motion to strike will not be granted absent a fatal defect on the face of the record. See, e.g., DeFeo v. MacIntyre, 265 Pa.super. 95, 401 A.2d 818 (1979). If a judgment is self-sustaining and regular on its face, it will not be stricken. See, e.g., Solebury National Bank of New Hope v. Cairns, 252 Pa.Super. 45, 380 A.2d 1273 (1977). Once a judgment entered by confession has been stricken by a valid order or vacated, it is entirely destroyed and the rights of the parties are as if no judgment had even been entered. See Rufo v. Bastian Blessing Co., 420 Pa. 416, 218 A.2d 333 (1966).
      On the other hand, a petition to open a confessed judgment is an appeal to the sound discretion of the trial court, must be timely filed and set forth a valid defense. See, e.g., Kardos v. Morris, 470 Pa. 337, 368 A.2d 657 (1977). A confessed judgment will be opened if evidence is produced which would require the issues to be submitted to a jury. See, e.g., M.H. Davis Estate Oil Co., Inc. v. Sure Way Oil Co., Inc., 266 Pa.Super. 64, 403 A.2d 95 (1979).
      Moreover, we emphasize that Pa.R.A.P. 311(a)(1) states that if orders opening or striking off a judgment are sought in the alternative, the court must dispose of each claim before an appeal can be filed. See Pa.R.A.P. 311(a)(1). As such, the trial court must decide whether the judgment against Bavis and Conshohocken should be stricken off and if it is not stricken, the motion to open must be decided prior to the filing of an appeal.


author: HOFFMAN, Judge: POPOVICH, Judge,

text:
    556 A.2d 419
    In re Joseph MITCH Sherry Dean and Martin Dean v. BUCKS COUNTY CHILDREN AND YOUTH SOCIAL SERVICE AGENCY. Appeal of Sherry DEAN and Martin Dean.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1988.
    Filed March 29, 1989.
    Donald B. Swope, York, for appellants.

      Joshua Z. Goldblum, Levittown, for appellee.
    Before MONTEMURO, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the order below dismissing appellants’ petition for custody. The sole issue raised for our review is one of first impression: whether prospective adoptive parents have standing to contest the decision of the legal custodian, a child welfare agency, to remove from their custody a child placed with them for adoption. For the reasons set forth below, we conclude that prospective adoptive parents do have standing to petition for custody and, accordingly, we reverse the order below and remand for proceedings consistent with this Opinion.

The child in question, Joseph Mitch, was born in August, 1974. On July 12, 1983, Joseph was found to be a dependent child and was placed in the temporary legal custody of the Bucks County Children and Youth Social Services Agency [hereinafter “Children and Youth”]. On January 9,1986, in response to a petition by Children and Youth, the parental rights of Joseph’s biological parents were terminated.

Thereafter, on March 21,1986, Children and Youth placed Joseph with appellants, Sherry and Martin Dean, for adoption. This placement was obtained by Children and Youth Services through Welcome House, which acted as an intermediary between appellants and Children and Youth. Prior to Joseph’s placement, appellants had entered into a service agreement with Welcome House. The agreement listed the responsibilities of Welcome House as an intermediary adoption placement service and those of appellants as “prospective adoptive” parents. Appellants also entered into an “Adoptive Placement Agreement” with Children and Youth. Joseph remained with appellants continuously until May 5, 1987, at which time he was admitted to Philhaven Hospital as an inpatient for psychological evaluations. Joseph was admitted by appellants at the behest of Children and Youth.

On June 5, 1987, Children and Youth terminated Joseph’s placement with appellants and notified appellants of the termination by letter. In response, appellants requested a hearing with Children and Youth regarding its decision. This request was rejected.

On July 7, 1987, appellants filed a Petition to Show Cause why Joseph should not be returned to them and the Orphans’ Court entered a rule to show cause upon Children and Youth. On August 28, 1987, the case was transferred to the Juvenil© Court Division of the Court of Common Pleas. Children and Youth then filed an answer to appellants’ petition as well as a motion to dismiss the petition for lack of standing. The parties filed a joint stipulation of facts and separate memoranda of law on their respective positions. On February 26, 1988, the court dismissed the petition based on its determination that appellants lacked standing to petition for a return of custody. This appeal followed.

The reasoning behind the trial court’s ruling was as follows. The court first observed that, although the precise question of prospective adoptive parents’ standing had never been decided, this Court has held that faster parents do not have standing to seek termination of parental rights, see In re Adoption of Crystal D.R., 381 Pa.Super. 501, 480 A.2d 1146 (1984) (construing Adoption Act), adoption, see In re Adoption of S.C.P., 364 Pa.Super. 257, 527 A.2d 1052 (1987) (construing Adoption Act), or custody, see Priester v. Fayette County Children & Youth Services, 354 Pa.Super. 562, 512 A.2d 688 (1986). The court then noted that it was impossible for appellants to adopt Joseph because Children and Youth, as Joseph’s custodian, would first have to consent, and “[i]t is clear on this record that Children & Youth will no longer consent to this adoption.” Trial Court Opinion at 6. Because adoption was an impossibility, the court reasoned that "there is no basis upon which to distinguish between [appellants’] status as previously intended adoptive parents or as foster parents” and thus concluded that appellants lacked standing.

Appellants contend that the trial court erred in equating them with foster parents for purposes of standing. Appellants note that prospective adoptive parents, unlike foster parents, are urged to form long-term emotional bonds with the children placed in their care. Appellants argue that the nature of prospective adoptive placements is sufficient to distinguish them from the foster parents in Priester, and thus they should have standing to seek judicial review of an agency’s decisions regarding custody. We agree.

As a general matter, to resolve an issue of standing, we must determine,

whether the person seeking relief is adversely affected or “aggrieved” in any way by the matter which he seeks to challenge through the judicial process. To have standing, the adversely affected party must allege an immediate, direct and substantial injury.

In re Adoption of B.E.W.G., 355 Pa.Super. 554, 560, 513 A.2d 1061, 1064 (1986) (citation omitted). With specific regard to custody cases, we note that there appears to be a conflict in the case law in this Court concerning the standing of foster parents. In Stapleton v. Dauphin County Child Care Service, 228 Pa.Super. 371, 324 A.2d 562 (1974), we held that foster parents do have standing to protest an agency’s decision to remove a foster child from their home. Id., 228 Pa.Superior Ct. at 380-81, 324 A.2d at 567-68. In Stapleton, as here, the child had been declared dependent, and the child care agency had legal custody of him. In resolving the question of standing, we turned to the Juvenile Act, then located at 11 P.S. § 50-101 et seq. We noted that § 50-302 of the Act provided that a “proceeding” under the Act could be “commenced” by, inter alia,

the filing of a petition as provided in this act. The petition and all other documents in the proceeding shall be entitled “In the interest of_, a minor,” and shall be captioned and docketed as provided by rule of the Supreme Court.

11 P.S. § 50-302 (repealed). 228 Pa.Super. at 378-79, 324 A.2d at 566. Based on this passage, we reasoned that the foster parents’ petition, although incorrectly titled, nevertheless commenced a proceeding. Id., 228 Pa.Superior Ct. at 379, 324 A.2d at 566. The next question was whether the petition had been filed “as provided.” To answer this question, we looked to § 50-314 of the Act, which stated:

A petition, which shall be verified and may be on information and belief, may be brought by any person including a law enforcement officer. It shall set forth plainly:
(1) The facts which bring the child within the jurisdiction of the court and this act, with a statement that it is in the best interest of the child and the public that the proceeding be brought and, if delinquency is alleged, that the child is in need of treatment, supervision, or rehabilitation____

11 P.S. § 50-314 (repealed). Based on this section, we reasoned that “[i]t is difficult to see how standing could have been defined any more broadly. [The foster child] was within the jurisdiction of the court below. The [foster parents] are ‘any persons.’ They therefore had standing to file a petition raising the issue of who should have custody of [the child].” 228 Pa.Super. at 380, 324 A.2d at 567.,

In Priester v. Fayette County Children and Youth Services, 354 Pa.Super. 562, 512 A.2d 683 (1986), a panel of this Court considered the same question presented in Stapleton and reached a different conclusion. The child in Priester had been placed with the foster parents for a period of two years. The agency then had the child transferred to another foster home where his brother resided. The agency denied the appellants’ request for the return of the child. On appeal, the panel held that the foster parents did not have standing to contest the agency’s custody of the child. Id., 354 Pa.Superior Ct. at 566, 512 A.2d at 685. We should note that, in reaching this conclusion, the Priester panel did not make reference either to Stapleton or to the Juvenile Act.

The apparent conflict between Stapleton and Priester would present a difficulty to our resolution of this appeal only if we agreed with the trial court and appellee that, for purposes of standing, prospective adoptive parents are indistinguishable from foster parents. A close reading of the panel’s rationale in Priester, however, convinces us that Priester is a limited exception to the otherwise broad standing provisions in the Juvenile Act, and thus should not control our analysis of the standing of prospective adoptive parents.

Priester recognized the fundamental distinction between foster placement and adoptive placement. In this regard, the panel observed that,

Foster care has been defined as a “‘child welfare service which provides substitute family care for a planned period for a child when his own family cannot care for him for a temporary or extended period, and when adoption is neither desirable nor possible.’ ” Smith v. Organization of Foster Families, 431 U.S. 816, 823, 97 S.Ct. 2094, 2099, 53 L.Ed.2d 14 (1977), citing Child Welfare League of America, Standards for Foster Family Care Service 5 (1959).
The distinctive features of foster care are first, “ ‘that it is care in a family, it is noninstitutional substitute care,’ ” and second, “ ‘that it is for a planned period — either temporary or extended. This is unlike adoptive placement which implies a permanent substitution of one home for another.’ ” 431 U.S. at 824, 97 S.Ct. at 2099, citing A. Kadushin, Child Welfare Services 355 (1967).
(Emphasis in original).
******
The singular focus of our review is one of standing for foster parents who seek to gain custody of a foster child formerly in their care. By its very nature, the foster parent/foster child relationship “ ‘implies a warning against any deep emotional involvement with the child since under the given insecure circumstances this would be judged as excessive.’ ” In re Adoption of Crystal D.R., 331 Pa.Super. 501, 510, 480 A.2d 1146, 1151 (1984), quoting J. Goldstein, A. Freud, and A. Solnit, Beyond the Best Interests of the Child 24 (1973).

354 Pa.Super. at 564-65, 512 A.2d at 684-85. Because foster placement, unlike adoptive placement, is temporary in nature, and because foster parents are forewarned of the temporary nature of the placement, the court concluded that foster parents do not have standing to contest an agency’s custody of a child. Id., 354 Pa.Superior Ct. at 566-67, 512 A.2d at 685.

In light of the rationale detailed above, Priester is perhaps best understood as a policy exception to the Juvenile Act’s standing provisions, premised on the unique nature of foster placement. In other words, Priester stands for the proposition that, because foster parents have neither permanent custody of a child nor an expectation of permanent custody, the legal custodian’s decision regarding who should have possession of the child does not cause the type of direct and substantial injury to foster parents that should be challenged through the judicial process.

A legal custodian’s decision regarding a prospective adoptive parent’s possession of a child, however, causes a very different type of injury. As Priester noted, adoptive placement implies a permanent substitution of one home for another. 354 Pa.Super. at 564, 512 A.2d at 683. Thus, prospective adoptive parents, unlike foster parents, have an expectation of permanent custody which, though it may be contingent upon the agency’s ultimate approval, is nevertheless genuine and reasonable. Because of this expectation of permanency, prospective adoptive parents are encouraged to form emotional bonds with the child from the first day of the placement. By removing the child from the care of the prospective adoptive parents, the agency forecloses the possibility of adoption. In light of the expectation of permanent custody that attends an adoptive placement, an agency’s decision to remove a child constitutes a direct and substantial injury to prospective adoptive parents. Because prospective adoptive parents, unlike foster parents, suffer a direct and substantial injury when an agency removes a child from them, we see no reason in law or policy why we should limit their standing to sue for custody.

We find further support for our conclusion by noting that other jurisdictions have determined that prospective adoptive parents have standing to contest a child care agency’s decision to remove a child from their care. In In re Thomas Joseph, 420 A.2d 85 (R.I.1980), the agency removed the child from prospective adoptive parents after a case worker became concerned with their suitability as adoptive parents. The prospective adoptive parents contested the agency’s decision, and the lower court ordered the agency to return the child to them. On appeal, the agency argued that the prospective adoptive parents lacked standing to contest the removal of the child from their home. In rejecting this argument, the Supreme Court of Rhode Island reasoned as follows:

We have stated many times over the past six years that the proper inquiry in resolving an issue of standing is whether the party seeking judicial review has suffered an “injury in fact,” either economic or otherwise, as a result of the statute or action in dispute.... We have emphasized that the “injury in fact” need not be substantial.... As long as the person seeking judicial review has suffered an injury, he has the requisite personal stake in the outcome of the litigation to confer standing....
In the present case there is no dispute that [the child] was placed with the Pelletiers [the prospective adoptive parents] as a prospective adopted child and that the [agency] subsequently removed Mm from their home. Although the Pelletiers may not have been entitled to the permanent custody of [the child] prior to filing an adoption petition, ... the removal of the child from their care, whieh would have effectively foreclosed the possibility of adoption for them, constituted an injury in fact. Having been thus injured by the [agency’s] action, the Pelletiers had standing to contest the action in the Family Court.

Id. at 88-89 (citations omitted).

The Supreme Court of Utah reached a similar conclusion in In the Interest of A.H., 716 P.2d 284 (Utah 1986). In A.H., the juvenile court ordered the removal of the child from her prospective adoptive parents based upon allegations of mistreatment and neglect. The prospective adoptive parents protested the order, and the juvenile court ordered the cMld care agency to return the child. On appeal, the agency argued that the prospective adoptive parents had no standing to petition for restoration of custody. The Supreme Court of Utah rejected this argument, noting that:

Traditional standing criteria require that the interests of the parties be adverse and that the party “seeking relief have a legally protectable interest in the controversy.” ... Although parents are the only persons with a legally vested interest in the custody of a child, ... a child’s prospective adoptive parents do have a legally protectible interest. Although [the prospective adoptive parents] may not be legally entitled to permanent custody prior to finalization of an adoption petition, the actions of the juvenile court could effectively foreclose the possibility of adoption for them. Therefore, having filed a petition for the adoption of [the child] and having been ordered by the court to pay for her expenses, the [prospective adoptive parents] have a legal interest sufficient to confer standing to petition for restoration of custody.

Id. at 286 (citations omitted).

Turning now to the facts in the instant case, a review of the petition filed by appellants convinces us that they clearly had standing under the Juvenile Act to petition for custody of Joseph. First, it is undisputed that Joseph had been declared dependent, see Stipulation at 1, para. 2, and thus he was within the jurisdiction of the juvenile court below. See 42 Pa.C.S.A. § 6334(1). Moreover, appellants are “any persons”, see id., the petition they filed was properly captioned, see id. § 6321(a)(3), and it stated that it was in the best interest of Joseph that he be returned to them and that they be permitted to proceed with his adoption. See id. § 6334(1). Because appellants had standing to file the custody petition under the terms of the Juvenile Act, and because we have concluded that there is no reason to limit their standing as a matter of policy, we must hold that the trial court erred in dismissing their petition for custody.

For the foregoing reasons, we reverse the order below and remand for proceedings consistent with this Opinion.

Reversed and remanded. Jurisdiction relinquished.

POPOVICH, J. files a dissenting statement.

POPOVICH, Judge,

dissenting:

While I agree that this case should be remanded to the lower court for further proceedings, I respectfully dissent from the majority’s decision that Sherry and Martin Dean have standing to petition for a return of “custody.” The majority states that “a review of the petition filed by the appellants convinces us that they clearly had standing under the Juvenile Act to petition for custody of Joseph[,]” citing 42 Pa.C.S.A. § 6334. However, the majority’s characterization of this case as one of “custody” is clearly erroneous. This is an adoption case and is therefore governed by the Adoption Act, 23 Pa.C.S.A. § 2101 et seq., not the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq. See Matter of Adoption of Sturgeon, 300 Pa.Super. 92, 104, 445 A.2d 1314, 1320 (1982); Com. ex rel. Grimes v. Yack, 289 Pa.Super. 495, 523 n. 22, 433 A.2d 1363, 1378 n. 22 (1981). By ruling that the appellant’s have standing to petition for custody, the majority simply exacerbates an otherwise simple case. When a prospective adoptive parents petitions for custody of the prospective adoptee, the petitioners, in effect, are petitioning for adoption — not for custody. We must not allow petitioners to use the Juvenile Act to circumvent the Adoption Act.

The Adoption Act, § 2701, sets forth the requirements for a petition for adoption. § 2701(7) requires “all consents required by section 2711 (relating to consents necessary to adoption) are attached....” As a pre-requisite to adoption, § 2711(a)(5) requires consent to the adoption by “the guardian of the person of an adoptee....” Following the January 6, 1986, termination the parental rights of J.M.’s biological parents, Bucks County Children and Youth Social Services Agency (“C & YS”) was named as the child’s legal custodian. C & YS’s opposition to this petition demonstrates an unequivocal refusal to consent to a future adoption of J.M. by the appellants. However, the actual legal custody of J.M. is vested in the Commonwealth with C & YS and the court simply acting as the State’s agent. See Sturgeon, 445 A.2d at 1321-22. Thus, the appellant’s only hope for becoming adoptive parents lies in a finding by the lower court, following a full hearing, that C & YS is wrongfully withholding its consent to the adoption. See In re Adoption of E.M.A., 487 Pa. 152, 409 A.2d 10 (1979), appeal dismissed, 449 U.S. 802, 101 S.Ct. 46, 66 L.Ed.2d 6 (1980) (courts have no authority to decree an adoption in absence of statutorily required consents).

Accordingly, I believe the lower court and the majority should have treated the instant petition as one for adoption — not one for custody. Rather than finding that the appellant has standing to petition for custody, I would order the lower court to hold an evidentiary hearing and determine whether C & YS’s refusal to consent to an adoption by the appellants is reasonable.

      . This agreement, which was signed at the time of Joseph’s placement, provided:
      In becoming adoptive parents we understand and agree that:

        1. The child, Joseph Mitch, whom we are taking into our home, is, until final adoption takes place, the ultimate responsibility of the Bucks County Children and Youth Social Services Agency.
      2. We are responsible for all day-to-day decisions regarding Joseph Mitch, and we assume all financial responsibility for him[ ].
      3. The placement period, which is in accordance with Pennsylvania law, extends for a minimum of six months from date of placement. This period which is designed to be of mutual benefit to Joseph Mitch and to us, provides a time to work toward our best possible adjustment, with the help of the social worker.
      If during this time we wish to request Joseph Mitchf’s] removal from our home, we are free to do so, but understand we will not receive reimbursement for any expenses incurred in behalf of Joseph Mitch.
      4. If we need to take Joseph Mitch out of state for any reason during the placement period, we will notify the Agency immediately of the situation.
      5. Supervision of the placement will be provided by Welcome House and periodic reports will be submitted to Bucks County Children and Youth Social Services Agency.

      . The request was rejected based upon 55 Pa.Code § 3700.73(a)(5). Section 3700.73(a)(5) provides:
      (a) Foster parents may appeal the relocation of a child from a foster family home except under the following conditions:
      (5) an investigation of a report of alleged child abuse indicates the need for protective custody removal to protect the child from further serious physical or mental injury, sexual abuse, or serious physical neglect as defined in Chapter 3490 (relating to child protective services — child abuse).
      55 Pa.Code § 3700.73(a)(5) (August 1985).
      We note that, on July 20, 1987, the Cumberland County Child Protective Services had filed a report of "indicated" child abuse against appellants. Appellants filed a timely appeal from this determination with the Department of Public Welfare; this matter was still pending at the time this appeal was filed.

      . Appellants did not timely file a report of intention to adopt, as required by § 2531 of the Adoption Act, apparently because of their attorney’s oversight. See Stipulation at 3-4, para. 12. We note, however, that it is undisputed that Joseph was placed with appellants for "the purpose of adoption.” Id. at 1, para. 4. Thus, this failure should not affect appellants’ status as prospective adoptive parents.

      . The Juvenile Act at issue in Stapleton has been repealed and a new Juvenile Act has been enacted, see 42 Pa.C.S.A. §§ 6301-6355 (effective June 27, 1978). The relevant provisions in the present statute governing both commencement of proceedings, see id. § 6321(a)(3), and the contents of a petition, see id. § 6334, do not differ in any material respect from the corresponding provisions in the former Act.

      . Stapleton was cited with approval in a 1982 case that involved prospective adoptive parents. In Matter of Adoption of Sturgeon, 300 Pa.Super. 92, 445 A.2d 1314 (1982), the young child had been placed in two different adoptive families by an agency with undisputed legal custody of the child. The agency ordered the second family to return the child to the agency; the family refused and petitioned for adoption. On appeal, the agency claimed, inter alia, that their placement agreement with the parents mandated the return of the child on demand. In rejecting this claim, Judge Montemuro, writing for the panel majority, stated:
      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.
      We reiterate at this time that an agreement of this 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.

        Id., 300 Pa.Super. at 107, 445 A.2d at 1321. The majority added that, 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.

        Id. (emphasis added). The majority then concluded that the trial court properly scheduled hearings on the prospective adoptive parents' petition before permitting removal of the child. Id., 300 Pa.Superior Ct. at 108, 445 A.2d at 1322.

      . We note that, because there has already been a dependency determination, this is not a case where the Juvenile Act is being misused as an alternative way to seek custody. See, e.g. Fallaro v. Yeager, 364 Pa.Super. 408, 421, 528 A.2d 222, 228 (1987).

      . We are aware, of course, that appellants cannot finalize an adoption of Joseph without the consent of Children and Youth. See 23 Pa.C.S.A. § 2711(a)(5). Thus, it is unlikely that appellants will be able to obtain relief on their petition. We note, however, that the relative merits of a petition in no way affect a parly’s standing to file it. See Stapleton v. Dauphin County Child Care Service, 228 Pa.Super. at 371, 324 A.2d at 567.

      . I note that resolution of the pending child abuse appeal before the Department of Public Welfare is essential to resolve this issue properly. If the result of that appeal is a finding that child abuse occurred, certainly no one would dispute that C & YS is correctly withholding its consent to the adoption.