text:
    514 A.2d 167
    COMMONWEALTH of Pennsylvania v. Ronald MONROE, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 23, 1986.
    Filed Aug. 22, 1986.

      Robert F. Pappano, Assistant Public Defender, Chester, for appellant.
    Vram Nedurian, Jr., Assistant District Attorney, New-town Square, for Com., appellee.
    Before OLSZEWSKI, CERCONE and HESTER, JJ.
   OLSZEWSKI, Judge:

We affirm, upon the well-reasoned opinion of the Honorable Rita E. Prescott, the judgment of sentence for robbery, theft by receiving stolen property, possession of a firearm without a license, and criminal conspiracy, entered against appellant, Ronald Monroe.

We would only add the case of Commonwealth v. Cooke, 342 Pa.Super. 58, 492 A.2d 63 (1985), as additional support for denial of appellant’s allegation that there was insufficient evidence to sustain the conspiracy conviction. In that case, we reaffirmed our belief that the conduct of the parties and the circumstances surrounding the crime may create a “web of evidence” linking the accused to the alleged conspiracy beyond a reasonable doubt.

Judgment of sentence affirmed.

APPENDIX

COMMONWEALTH OF PENNSYLVANIA

vs.

RONALD MONROE

IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

FILED: March 14, 1986

Jana Nestlerode, Assistant District Attorney, Media, for Com.

Lawrence R. Dworkin, Chester, for defendant.

PRESCOTT, J.

OPINION

On February 15, 1985, the Defendant, Ronald Monroe, was convicted by a jury of Robbery, Theft by Receiving Stolen Property, Possession of a Firearm Without a License and Criminal Conspiracy. By Order dated December 10, 1985, Defendant’s Motions for New Trial and/or Arrest of Judgment were denied. On January 21, 1986, the Defendant was sentenced and on January 30,1986, Defendant filed an appeal with the Superior Court of Pennsylvania, thus necessitating this opinion.

Defendant’s post-trial motions raised the following two issues:

(1) Whether sufficient probable cause existed which would have justified a stop of the Defendant’s vehicle;

(2) Whether the jury verdict as to criminal conspiracy was supported by legally sufficient evidence.

Before addressing the issues raised by Defendant’s post-trial motions, this Court will proceed to review the facts of the case. In many instances the evidence introduced at the suppression hearing was identical to the evidence introduced at trial. Therefore, all the facts of the case will be set forth immediately hereafter and relevant sections of same will be discussed as they apply to the issues raised.

On March 10, 1984, at or about 3:20 A.M., Defendant Monroe drove and parked his car in a parking lot in front of the Acme Supermarket situated at the corner of Baltimore Pike and Bishop Avenue, Upper Darby, Pennsylvania. The passenger in said car, Virgil Barclay, got out and walked back and forth along the front of the store while looking into the store’s glass windows. Barclay then entered the store and pointed a .38 caliber revolver at the cashier and demanded money. The cashier handed Barclay about $100.00 in small bills and Barclay ran out of the store with a bag and a gun in his hands and got into the passenger side of the car in question. Defendant then drove out of the parking lot with the headlights turned off.

Corporal Robert Keates of the Clifton Heights Police Department was on duty at police headquarters at all time relevant hereto. He received a police radio message that the Acme store had just been robbed by two black males who left the scene in a light-colored, full-sized vehicle. Within two minutes of the radio message, Corporal Keates left the police station, entered his police car and proceeded west on Baltimore Pike toward the subject Acme market. While proceeding in the said direction, Corporal Keates received further informátion that the robber was 5'9" tall, black, had no facial hair, was wearing a jacket and had the cash in small bills. After proceeding approximately three-quarters of a mile, Corporal Keates observed the Defendant’s full-sized, light colored vehicle travelling toward him in the opposite direction on Baltimore Pike. Corporal Keates first observed this vehicle at the intersection of Baltimore Pike and Oak Avenue, which intersection is located approximately two blocks from the Acme store which had been robbed. Corporal Keates observed that the driver of the vehicle, the Defendant, was a slender, clean-shaven, black male. As the Defendant’s vehicle approached Keates’ marked police car, he saw the passenger in the Defendant’s vehicle duck down. After the vehicles passed each other, Corporal Keates continued to observe the Defendant’s vehicle and noted that the passenger was still hunched over. At that point, Corporal Keates became suspicious, made a U-turn and followed Defendant’s vehicle. Corporal Keates observed Defendant Monroe bending from side to side as if reaching for or moving something. This unusual behavior while driving further aroused Keates’ suspicion and when he got close enough to see the registration tag on the vehicle, Corporal Keates radioed his intention to stop the car at Baltimore Pike and New Street. Although this particular intersection was still some distance away, Corporal Keates wanted to allow some time for a back-up officer to meet him at said location which he knew to be well lighted and not very isolated.

Corporal Keates eventually stopped the Defendant’s vehicle at the stated location. Upon stopping, the Defendant jumped out of the driver’s side and approached the police car. Corporal Keates told the Defendant to stop and to return to his vehicle. Upon checking that a back-up police officer was coming, Corporal Keates approached the Defendant. During this entire time, the Defendant’s passenger remained hunched over and did not sit up until Keates was at the back corner of Defendant’s vehicle. When Corporal Keates shined his flashlight inside the vehicle, he saw a lot of crinkled up bills on the front seat of the vehicle. Some of the bills were on the driver’s side, some were on the floor and some were on the passenger’s side. Keates also observed the passenger move his hands toward the glove compartment in which a .38 revolver was later found. Both occupants of the vehicle were arrested and Joseph Trojan, the Acme cashier, identified the passenger as the robber.

The first issue raised by Defendant was: Whether sufficient probable cause existed which would have justified a stop of Defendant’s vehicle.

Both the United States and Pennsylvania Constitutions prohibit unreasonable searches and seizures of persons or property. To determine what is a reasonable search, the courts have adopted the standard of probable cause, which has been defined as follows:

“Probable cause to arrest exists if the facts and circumstances within the officer’s knowledge have been gained by reasonably trustworthy means and one sufficient to warrant a man of reasonable caution to believe that the suspect has committed or is committing a crime.” Commonwealth v. Pytak, 278 Pa.Super. 476, 486, 420 A.2d 640, 644 (1980).

The Superior Court of Pennsylvania stated in Pytak, supra, the test for probable cause is a practical one and not an academic exercise. The Court in Pytak explained this principle as follows:

“We are mindful that we should not assess the sufficiency of the officer’s information as legal technicians examining the situation in retrospect, but rather that the concept of probable cause involves dealing with probabilities arising from the practical considerations of everyday life upon which prudent men rely.” Commonwealth v. Pytak, 278 Pa.Superior Ct. 483, 420 A.2d 644.

In summary, the substance of probable cause is a reasonable basis for belief that a suspect has committed or is committing a crime. It is only the probability of criminal activity that is the standard of probable cause. This means less than evidence which would justify conviction, or even a prima facie showing of criminal activity; but more than a mere suspicion. Commonwealth v. Murray, 437 Pa. 326, 263 A.2d 886 (1970); Commonwealth v. Pytak, supra.

In the case at hand, Corporal Keates received information that a robbery had occurred only minutes earlier at the Acme store in question. Within two minutes of receiving that information, Corporal Keates got into his police car and headed for the scene of the robbery. He also knew that the perpetrator of the robbery was a clean-shaven, black male who was travelling in a full-sized, light colored vehicle. Within five minutes of the robbery, Corporal Keates spotted a full-sized, light colored vehicle being operated by a clean-shaven, black male proceeding toward him from the direction of the scene of the robbery. The streets were otherwise deserted and Corporal Keates first observed the subject vehicle at a location only two blocks from the scene of the robbery. As the subject vehicle approached the marked police car, the passenger ducked down and he remained in that position while Corporal Keates followed the said vehicle.

Armed with the foregoing observations and the knowledge he possessed about the vehicle, its’ operator and the location of the robbery, this Court is of the opinion that Corporal Keates had a reasonable basis to believe that the suspects he had observed had committed the robbery and, therefore, probable cause existed to stop the vehicle in question.

In addition to all the foregoing, even if this Court were to assume arguendo that probable cause did not exist to stop the Defendant’s vehicle, then this Court is of the opinion that Corporal Keates lawfully stopped the Defendant’s vehicle for the purpose of conducting a limited investigation. This concept is often referred to as an “immediate response” as has been explained as follows:

“[A] police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest. The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary ... it may be the essence of good police work to adopt an immediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” See, Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972); Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1970).

Under the circumstances presented in the instant case, Corporal Keates acted lawfully in stopping Defendant’s vehicle under the concept of “intermediate response.” Only minutes had elapsed since a clean-shaven, black male had robbed an Acme cashier. The robber was then in the process of fleeing the scene in a full-sized light colored vehicle. The streets were relatively deserted and Corporal Keates spotted a clean-shaven, black male operating a full-sized, light colored vehicle at a location approximately two blocks from the crime scene.

Having stopped the vehicle in question, Corporal Keates observed, in plain view, a lot of bills strewn about the front seat of the car. At that point, Corporal Keates had the right and the duty to search the persons and the vehicle not only as a search incidental to an arrest, but, also to protect himself. See, Commonwealth v. Evans, 314 Pa.Super. 16, 460 A.2d 350 (1983).

The second issue raised by Defendant in his post-trial motions was: Whether the jury verdict as to criminal conspiracy was supported by legally sufficient evidence.

The test for determining the sufficiency of the evidence when a conviction is challenged is: Whether reviewing all of the evidence, together with all reasonable inferences that can be drawn therefrom, in the light most favorable to the Commonwealth, the jury could have reasonably found that each element of the offense charged was supported by the evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984); Commonwealth v. Keblitis, 500 Pa. 321, 456 A.2d 149 (1983). All direct, circumstantial and corrobarative evidence can be considered in testing the sufficiency of the evidence. Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977).

Under existing law in Pennsylvania, the Commonwealth need not prove an explicit or formal agreement in order to establish the existence of a criminal conspiracy. Commonwealth v. Manlin, 270 Pa.Super. 290, 411 A.2d 532 (1979). An agreement may be proved inferentially by showing the relation, conduct or circumstances of the parties, Commonwealth v. Jackson, supra, and, overt acts of alleged co-conspirators are competent proof of a conspiracy. Commonwealth v. Kennedy, 499 Pa. 389, 453 A.2d 927 (1982).

In the opinion of this Court, there was legally sufficient evidence to sustain the Defendant’s conviction for conspiracy to commit robbery. By his own admission, the Defendant had known the robber, Virgil Barclay, for a long period of time. In fact, the two had lived across the street from each other. On the night in question, the Defendant and Barclay had been out drinking together.

John Logan, an Acme employee, was in the subject parking lot, in his car, taking a break at the time of the robbery. Logan observed a car with two black males enter and park in the said lot. Then Logan observed the passenger get out of the car and prior to entering the store, the passenger was observed walking back and forth along the front of the store while looking into the store’s glass windows. Some time later, Logan saw the passenger run out of the store, run in front of Defendant’s car with a bag and a gun in his hands and jump into the passenger side of the car. The driver of the car then drove out of the parking lot with the headlights turned off.

Corporal Keates spotted the Defendant’s vehicle only two blocks from the scene of the crime. Said vehicle was heading toward Keates, and away from the site of the robbery. As Defendant’s vehicle passed the marked police car, Corporal Keates observed the passenger duck down. While following Defendant’s vehicle, Corporal Keates observed the Defendant bending down from side to side as if moving or reaching for something. Upon stopping the car, Corporal Keates saw a lot of bills, in plain view, scattered about the front seat of the car. A .38 caliber revolver was subsequently found in the glove compartment of the car.

In light of the legal authorities cited, as well as the facts and circumstances introduced as evidence in the case, the Defendant’s post-trial motions were denied.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    514 A.2d 172
    Joanne SCHEAFNOCKER v. Fred SCHEAFNOCKER, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 9, 1986.
    Filed Aug. 22, 1986.

      Anthony W. DeBernardo, Jr., Ruffs Dale, for appellant.
    Robert M. Stefanon, Greensburg, for appellee.
    Before CAVANAUGH, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of the Court of Common Pleas of Westmoreland County dismissing Fred Scheafnocker/appellant’s petition for custody of his minor children. We affirm.

The record discloses a course of events reflective of the present day dilemma in which courts from two states find themselves when parents attempt to secure custody of their child(ren) by surreptitious means and then enlist the aid of the state in which removal has been made to approve of the conduct so as to establish permanent custody in one parent and not the other.

Three hearings were conducted to resolve the issue of which State, Pennsylvania or Texas, had subject matter jurisdiction to decide the custody question. An examination of the transcripts produced thereby reveal that two children (Kevin, age 8; Colleen, age 10 at the time of the proceedings below) were born of the 1971 marriage between Joanne and Fred Scheafnocker. The two separated in June of 1978 and were divorced in April of 1983 in Pennsylvania.

Although the children were born in Pennsylvania, the family lived in Ohio from 1972 until the appellant was laid-off by United States Steel Corporation and transferred to Texas to work in 1978. Joanne and the children remained behind, and, in fact, moved to Pennsylvania (where her parents and relations lived) until the appellant could get things settled in Texas. However, the appellant’s work was shortlived (one year) and his unemployment compensation expired thereafter. Nonetheless, the appellant did provide Joanne with some monies to assist in the payment of various expenses, which supplemented the welfare she received and became interspersed with income she was able to generate, at times, from employment.

From June of 1978 — October of 1981, Joanne and the children lived in Allegheny County. In November of 1981— April of 1982, they lived in Westmoreland County, but, because of the mid-year change of address, the school district (Norwin) would not permit the children to complete the last month of the term.

As a result, in April of 1982, the appellant flew to Pennsylvania and drove the children back to Texas to enroll them in a Harris County school until the completion of the semester at the end of May. Joanne then went to Texas in June and returned to Pennsylvania with her son, while the daughter remained with the appellant. However, when Joanne could not get H.U.D. (federal) housing because of a waiting list or unemployment compensation, she and Kevin went back to Texas and the children attended the whole school year (1982-1983) there. During this same period of time, Joanne obtained a temporary job to help support the children because the appellant was unemployed, and so she could “save up enough money to return to Pennsylvania.”

The situation in Texas was such, according to Joanne, that she could no longer remain because the appellant had been living with a girlfriend in the same mobile home where the children were staying. After one week of this arrangement, she moved in with her adopted daughter who was living in the same trailer park, and this afforded her the opportunity to take care of her children after school without having to live with the appellant.

Because Joanne felt that exposure to the appellant’s living conditions were detrimental to the children, she returned to Pennsylvania at the completion of the 1983 school term and left a note to that effect (on June 27) for the appellant. Also, at this time, the divorce proceedings, which had been started in 1981 in Allegheny County, were completed (April, 1983).

For the 1983-1984 school session, Joanne enrolled the children at Hillcrest Elementary School in North Hunting-don, Westmoreland County, on August 30. They attended for one month before the appellant came from Texas on September 29 and removed them from this Commonwealth as they were boarding the school bus. Joanne was notified by the appellant of his actions (a little over an hour later) after he had left this jurisdiction.

On October 4, 1983, Joanne filed a complaint for custody in Westmoreland County (No. 1735 of 1983, C.P.). The appellant was notified and served the same by a Texas constable on October 14, with a hearing date set for November 10. The appellant did not appear on the advice of his out-of-state counsel.

At the November 10 proceeding, Joanne informed the court that earlier that same morning she had been served with a summons to appear in Texas on November 14 for a hearing. Of relevancy here, Joanne recounted that:

a) Kevin and Colleen have an older brother (Martin, 15) and sister (Lisa, 14) from Joanne’s prior marriage.
b) The four children live together and get along well.
c) The children have lived in Westmoreland and Allegheny Counties for the last five years.
d) Colleen is a majorette and Kevin is a drummer in the school band.
e) Kevin and Colleen are involved in community activities, as well as their friends and relatives living in the Westmoreland County area.
f) She (Joanne) is presently employed and better able to support the children — the appellant has been unemployed for the previous two years, he has no benefits and he is not capable of providing medical care because Texas does not have welfare.
g) From 1978 to the present she (Joanne) has provided total support (care) to the children.

Counsel for Joanne also read into the record that the appellant “filed his original Petition [for Custody] in the 310th Judicial District Court in the State of Texas as of the 27th day of October and this would be approximately two weeks after he was served that there was a hearing ... here”.

At the completion of Joanne’s testimony, the court made findings of fact and conclusions of law leading to the award of the children to her, having initially determined that it had subject matter jurisdiction.

Joanne did travel to Texas for the November 14 proceeding, but it was re-scheduled for November 21. As for a motion to quash filed by Joanne, because of the Pennsylvania court’s entry of a custody order, the Texas court refused to honor it because, as stated by Joanne, a signature was missing from the document. The Texas court assumed jurisdiction and decided that the children would stay in Texas until a home-study was done of each of the residences involved.

In an attempt to facilitate the process, Joanne asked the court in Pennsylvania whether it would conduct a home-study of her premises for the Texas court. This was declined. In Joanne’s mind this seemed to delay the matter even longer because of the additional temporary restraining order issued denying her access to the children. Thus, Joanne, not able to cope with not seeing her children, traveled to Texas on January 15,1984 and returned them to Pennsylvania.

The second in a series of hearings was held. This time it was prompted by the appellant’s petition seeking to have the Westmoreland County court strike its November, 1983 order giving custody to Joanne. The appellant claimed:

1) Jurisdiction did not lie in Pennsylvania.
2) Joanne violated the Uniform Child Custody Jurisdiction Act by “not informing th[e] Court fully of the proceeding which was going on and pending in the State of Texas.
3) Fraud was committed on the court as to its obtaining jurisdiction; certain matters testified to were incorrect.
4) Subsequent to the Pennsylvania court’s custody order, “the entire matter was relitigated in the State of Texas, at which time the Court in Texas reviewed th[e Pennsylvania] Court’s Findings of Fact and Conclusions of Law, [its] Order, and then entered an Order of its own awarding custody to [the appellant].”
5) Under the Uniform Child Custody Jurisdiction Act, the Texas court’s action “is a modification of this [Westmoreland County court] Order, that this Court ought to immediately give credence to.”

The appellant’s counsel went on to note that the children were in the Commonwealth, according to Joanne’s testimony at the November hearing, “from May of 1983” until “the action was commenced in October of 1983.” This, the appellant contended, fell short of the six-month requirement necessary to establish home-state jurisdiction in Pennsylvania under the Uniform Child Custody Jurisdiction Act (U.C. C.J.A.). See 42 Pa.C.S. § 5343.

Counsel for the appellant likewise argued that, because Joanne had been served with notice of the Texas action (see Exhibit # 1) at the November 1983 proceeding, the Pennsylvania court was required to stay the proceedings and communicate with the Texas court, as required by signators to the U.C.C.J.A. (of which Pennsylvania and Texas are) under Section 5347(c). In addition, counsel for the appellant produced a Texas decree establishing custody of the children in the appellant, and, as observed by counsel, because this came after the Pennsylvania court’s November 1983 hearing, it constituted a “modification” of the earlier Pennsylvania custody order and should take precedence.

Thereafter, the appellant took the stand and attempted to refute Joanne’s earlier testimony that she had been the sole contributor to the children’s welfare by producing cancelled checks totalling $5,100 to evidence his contribution to the support of the children. On the question of jurisdiction, the appellant admitted being served with a certified mail notice of the Pennsylvania action as to a November hearing, but he stated that this occurred subsequent to the commencement of the Texas cause of action, which papers were submitted before the Harris County court “the following Monday when [he] brought the children back from Pennsylvania down to Texas.”

The appellant recounted the events surrounding the taking of the children between Pennsylvania and Texas from April of 1983 through January of 1984, which was inconsistent with his complaint that the last removal occurred in February of 1984. He also pointed out an error in the pleadings referring to Joanne having knowledge of the Texas decree of “April 1984,” when she took the children in “February of 1984.” He offered that the April 1984 decree really was referring to the November 21, 1983 Show Cause Hearing in Texas, wherein he received custody.

The last of the trio of hearings on the question of jurisdiction took place on August 27, 1984. Both sides were given additional opportunity to present evidence and testify to matters supportive of their respective positions. At the completion of the proceeding, an opinion and order were issued denying the appellant the relief requested. This appeal followed.

The succeeding three issues are raised by the appellant for our consideration:

1) Was Pennsylvania the Home State of the Children so as to Attach Jurisdiction in Pennsylvania?
2) Did the Westmoreland County Court err in not Staying the November 1983 Custody Hearing After Being Made Aware of Simultaneous Proceedings in Texas?
3) Did the Court err in not Granting the Appellant’s Request for Relief and Honoring the Texas Decree?

As for Point # 1, it cannot be denied that at the time Joanne/appellee instituted her custody action in Pennsylvania (October 4, 1983), the children had not been residents “for at least six consecutive months” prior thereto so as to consider Pennsylvania the “home state”, for an initial custody determination, under 42 Pa.C.S. §§ 5343, 5344(a)(1). In fact, the appellant had taken them back to Texas on September 30, 1983. However, “the Act clearly implies that there will be factual situations that will impel a court to accept jurisdiction even when ‘home’ jurisdiction exists elsewhere.” Hattoum v. Hattoum, 295 Pa.Super. 169, 175, 441 A.2d 403, 406 (1982) (Emphasis in original). Herein, the court below found the “substantial contacts”, an alternative basis for securing jurisdiction under Section 5344(a)(2) of the U.C.C.J.A. (see Bem v. Bem, 316 Pa.Super. 390, 463 A.2d 16 (1983)), to be more compelling. (See Lower Court Opinion at 9)

The facts advanced by the appellee to the court below are not to be minimized. For example, the children were born in Pennsylvania and their medical records for treatment of various childhood maladies are present here. The children lived in this Commonwealth for four years prior to changing addresses to Texas, which the appellee thought would be beneficial for the unity of the family. As testified to by the appellee, when she arrived in Texas and found her then husband living with another woman, she decided that she could not live under the same roof and moved in with her daughter from her first marriage, who happened to live in the same trailer park as the appellant. The appellee did not feel that these circumstances were conducive to raising a family. However, she was destitute upon arriving from Pennsylvania, and “so financially [she] had no way of coming back.” Thus, she obtained temporary employment just until she was able to accumulate sufficient income “to return to Pennsylvania.”

The appellee never regarded Texas as her home, as evidenced by the retention of her driver’s license and voting status in Pennsylvania. In fact, she “was unable to vote in Texas, they refused [her] voting because it was not [her] residence.” She is now employed as an insurance trainee here.

Moreover, the children have their maternal grandparents and other relatives in Pennsylvania; the father’s parents live in Ohio; the religious training and religious affiliation has been in Pennsylvania. Consequently, there is available in this Commonwealth substantial evidence concerning the present or future care, protection, training and personal relationships of the children. 42 Pa.C.S. § 5344(a)(2).

The appellant’s second point relates to the claim that the Westmoreland County court was “obligated” to stay the November 10, 1983 custody hearing, having been informed that “Texas had assumed jurisdiction and had issued a restraining order upon [the appellee] precluding her from getting near the children.” (Appellant’s Brief at 4)

The issue raised is to be examined “as of the time the petition for custody is filed”, and not at time the subsequent hearings (on August 3 and 27 of 1983) were conducted to re-evaluate jurisdiction, as was argued by counsel for the appellee below. See Sagan v. Sagan, 261 Pa.Super. 384, 388 n. 1, 396 A.2d 450, 452 n. 1 (1978).

At the time the appellee returned with her children to Pennsylvania in June of 1983, as well as when the appellant removed them back to Texas in September of the same year, there was no custody order in effect. Thus, neither party violated any laws.

Jurisdictional inquiry begins with the appellee’s filing for custody in Pennsylvania on October 4, 1983. The appellant was served with a copy of the same and notified of a November 10 hearing therein by October 15. Likewise, on the date of the hearing, the appellee had been served with a notice that a hearing would be conducted in Texas on November 14. This information was stated in open court to the judge hearing the matter at bar. The appellant’s counsel urges that at this stage the Pennsylvania court was required to halt the proceedings and communicate with the Texas court, in which another proceeding was pending, given the provisions of 42 Pa.C.S. § 5347.

Under subsection (c) of Section 5347, a “stay” shall be issued and communication with the out-of-state court must be had only “[i]f the court is informed during the course of the proceedings that a proceeding concerning the custody of the children] was pending in another state before the court assumed jurisdiction____” (Emphasis added)

Instantly, as already stated, the court below acquired jurisdiction of the case on October 4, whereas the appellant’s affidavit attached to his request for relief by the Texas court was signed by him on October 24. Therefore, the Pennsylvania court, after assuming jurisdiction, was required under subsection (c) of Section 5347 only to “inform” the Texas tribunal of what was transpiring in Pennsylvania “to the end that the issues m[ight] be litigated in the more appropriate forum.” It was not obligated to hold the proceedings in abeyance.

In like fashion, we note that the Texas court failed to issue a “stay” and communicate with the Pennsylvania court once the appellee produced the out-of-state custody order at the November 21, 1983 hearing.

The transcript of the November 21 proceeding discloses that the appellee recounted securing the order in question and remarking about the “significant connections” with Pennsylvania, e.g., friends and relatives in this Commonwealth; living here from 1978-1982; and the nine-month period the children spent in Texas going to school, but never severing their ties here.

It appears that the Texas court was not too disposed to hear the appellee’s motion to strike the appellant’s petition for relief, for when counsel for the appellee objected to the cross-examination of her client as to welfare obtained in Pennsylvania, claiming that this information had been “offered on the motion — the Plea of the jurisdiction only in order to show a significant connection with the children in the state of Pennsylvánia ..the Texas court observed:

Well, counsel, about the only significant connection with any state was the continuous nine months the children resided right here. There had been no prior Orders of the Court prior to that time. Each one had an equal right.

Curiously enough, no mention was made as to the impact of the existing Pennsylvania custody order on the litigation. Except, in the April 1984 order making the appellant the “Temporary Managing Conservator of the children”, the Texas court stated that it had jurisdiction of the case “and that no other court ha[d] continuing jurisdiction of this cause.” Therefore, it would appear that the Texas court decided, as counsel for the appellant framed the action, to modify the Pennsylvania custody order.

As a signator to the U.C.C.J.A., the Texas court was required to find that this Commonwealth did not have jurisdiction “substantially in accordance” with said Act. See 42 Pa.C.S. § 5355(a). Nowhere in the record before us is there any evidence of any such determination. Moreover, since we have already determined that “substantial contacts” existed between the appellee and this Commonwealth the Texas court’s conduct would appear to be at odds with 42 Pa.C.S. § 5344(a)(4). As an aside, we would mention that the appellant neglected/failed to set forth in his petition for a hearing in Texas (sometime after October 24) that there was an action pending in Pennsylvania on the question of custody as required by 42 Pa.C.S. § 5350(c).

The appellant’s counsel’s efforts to minimize this nonfeasance, by averring below that Texas counsel informed the court there of the Pennsylvania proceeding “orally”, caused the court below to observe quite correctly:

Well, either number one it happened as the pleadings show, that Judge Daggett [in Texas] was never advised of the proceedings here and entered the order or, secondly, he was appraised [sic] by your client’s attorney there and just ignored the proceeding.

The latter might be the more rational inference from the recitation of what transpired at the November 21 hearing in Texas, and the subsequent entry of the April 1984 decree by the same court on the ground that no other court appeared to have continuing jurisdiction in the affray.

From what we can gather, both Texas and Pennsylvania had enough of an interest in the litigation to assume jurisdiction of the dispute, e.g., Texas was the “home state” for at least six months prior to the appellee’s abduction of the children to Pennsylvania (42 Pa.C.S. §§ 5343, 5344(a)(1)), and Pennsylvania had “significant connection” with the children and parent seeking relief (Id. at § 5344(a)(2)).

The only downfall appears to have been the failure of either court to communicate with the other, once it was learned (whether it be before, during or after the assumption of jurisdiction) that proceedings had been commenced or papers filed in the other’s state. 42 Pa.C.S. §§ 5342, 5347. This failure to communicate has spawned the instant litigation, which is in direct contravention to the stated purposes of the U.C.C.J.A., e.g., avoid jurisdictional competition and conflict with courts of other states in matters of child custody; promote cooperation with the courts of other states to the end that a custody decree is rendered final; discourage continuing controversies over child custody; avoid relitigation of custody decisions of other states; and facilitate the enforcement of custody decrees of other states. See 42 Pa.C.S. § 5342(a).

Accordingly, inasmuch as Pennsylvania has, at least, an interest in the placement of the children equal to Texas, we see no reason to invalidate the actions of the court below on the question of jurisdiction. In addition, the Commissioners’ Note to Section 6 of the U.C.C.J.A., concerning simultaneous proceedings in other states, reads: “When the courts of more than one state have jurisdiction ... priority in time determines which court will proceed in the action____” Commissioners’ Note, 9 Uniform Laws Annotated at 135 (1979); see also 42 Pa.C.S. § 5347(c). It is undisputed that the appellee filed her custody complaint before the appellant’s submission of his petition in Texas seeking the same relief. As a result, the Pennsylvania court was not required to decline jurisdiction since in October of 1983 there was no other court which was a more appropriate forum. See 42 Pa.C.S. § 5344(a)(4); Matter ofD.L.S., 278 Pa.Super. 446, 450, 420 A.2d 625, 627 (1980). This necessarily renders ineffectual the last of the appellant’s complaints as well.

However, we are not at this time prepared (or asked) to rule on the propriety of the Westmoreland County court’s custody order of November 10, 1983. The reasons become self-evident from a review of the record.

First, the validity of the custody order is not assailed in either of the parties’ briefs, nor is it treated by the court below — it having been observed that the appellant never appealed the initial custody order. Yet, interestingly enough, the court below states in its opinion to us at pages 10-11 that it:

... acquiesced to have a hearing on the father’s Petition to Deliver Custody to him notwithstanding the fact that he raised the same issues he could have argued in the initial custody case filed by the mother. This Court believes this case has been litigated and relitigated with identical results found by this Court.

It would seem, at first blush, that the custody question was permitted to be relitigated despite the appellant’s failure to appeal the matter earlier. This would be proper since a custody order is never permanent but always subject to modification, if circumstances are presented to warrant an alteration in the award. See 42 Pa.C.S. § 5355; Commonwealth ex rel. Zaubi v. Zaubi, 275 Pa.Super. 294, 418 A.2d 729 (1980); Commonwealth ex rel. Tucker v. Salinger, 244 Pa.Super. 1, 366 A.2d 286 (1976); Bertin, Pennsylvania Child Custody — Law Practice, and Procedure, § 1.6.1 (1983).

Nonetheless, at the last two hearings (on August 3 and 27 of 1983), counsel for the appellant restricted, and the court agreed, the questions being asked of the parties solely to a determination of the jurisdictional controversy. In particular, counsel for the appellee was refused the opportunity to present the testimony of a psychologist who would have supposedly testified to some psychological trauma and emotional harm to the children since the initial custody order. As the court below put it, “ ... I’m only interested for the purposes of this particular hearing to consider the issue of jurisdiction.”

We emphasize that the court below did not hold an evidentiary hearing on best interests of the children as to custody because it restricted the proceedings to the question of subject matter jurisdiction as to the initial custody order under U.C.C.J.A. Therefore, we believe that the parties themselves and the court below have restricted the issue on review to one of whether the tribunal below had the authority to act on the October 4, 1983 Complaint in Custody of the appellee/mother.

We find that under the applicable case law and U.C.C. J.A., the court acted properly in deciding the appellee’s complaint, and it need not have deferred to another jurisdiction on a matter rightly before it for review.

Judgment affirmed.

      . Even if we wanted to review the lawfulness of the custody order, we would be hampered in our efforts to do so because the type of objective evidence necessary to assess the best interests and general welfare of the children cannot be acquired exclusively from the parties themselves. In the hearing conducted below, only the children’s parents testified. There was no testimony proffered from disinterested witnesses bearing upon the present capabilities of the parties to provide the children with a stable environment. See Tettis v. Boyum, 317 Pa.Super. 8, 463 A.2d 1056 (1983) for a listing of those matters which an appellate court deems relevant in making its determination as to the propriety of a lower court's custody ruling.
      It is to be emphasized that the court below had the jurisdiction to decide the appellee’s complaint, and it was not divested of such authority by the mere notice that a hearing (the substance of which was never disclosed to the court below) was to take place in Texas subsequent to the deliberations set for inquiry in Pennsylvania. We do not believe that the U.C.C.J.A. requires otherwise.
      We do advise that in the future, in order to effectuate the purposes set forth in the U.C.C.J.A., a spirit of cooperation be manifested to a degree higher than that exhibited during the proceedings involving the case at bar. If this occurs, it is inevitable that duplicative litigation will be minimized or eradicted altogether.


author: MONTEMURO, Judge:

text:
    514 A.2d 179
    COMMONWEALTH of Pennsylvania, Appellant, v. Joseph M. LAGANA, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1983.
    Filed Aug. 25, 1986.

      Steven J. Cooperstein, Assistant District Attorney, Philadelphia, for Com., appellant.
    Donald S. Bronstein, Assistant Public Defender, Philadelphia, for appellee.
    Before MONTEMURO, POPOVICH and HOFFMAN, JJ.
   MONTEMURO, Judge:

This Commonwealth appeal is before us on remand from the Supreme Court of Pennsylvania, Commonwealth v. Lagana, 510 Pa. 477, 509 A.2d 863 (1986).

On the basis of information broadcast over police radio, appellee was arrested on May 11, 1981, and charged with burglary and various firearms offenses. The arrest on the gun charges resulted from a Terry stop during which appellee was frisked and a gun discovered; the later burglary charges stemmed from appellee’s proximity at the time of the arrest to two carrying cases which contained what was determined to be proceeds of a burglary committed on May 10. The weapons and burglary charges were not consolidated, and were made the subjects of two separate suppression motions.

On August 28, 1981, the motion to suppress evidence connected to the burglary charge was heard and granted by the Honorable Nelson A. Diaz. No Commonwealth appeal followed. Instead the burglary charge was nolle prossed.

At the suppression hearing on the firearms charge, the Honorable Eugene H. Clarke, Jr., ruled that by operation of collateral estoppel he was compelled to suppress the subject evidence, the gun, on the basis of Judge Diaz’s findings of fact and conclusions of law. The Commonwealth appealed and this court affirmed. (Per Spaeth, P.J., with Popovich, J. concurring in the result.) The danger represented by a theoretically incorrect result was determined, on balance, to be outweighed by various policy considerations if collateral estoppel was not applied. Specifically, we held that the latent evils of trying defendants with illegally obtained evidence, harassment of accuseds by the Commonwealth, piecemeal prosecutions, and the subversion of a defendant’s reliance on a favorable prior outcome, were more likely to be realized where there were inconsistent (pre-trial) rulings on separate prosecutions arising from a single arrest.

The supreme court disagreed, finding that while “having judges of equal jurisdiction, sitting on the same bench, overruling each other on the same record,” Lagaña, 510 Pa. at 483, 509 A.2d at 866, was to be avoided, of paramount importance was the necessity to neutralize “the potential negative impact of perpetuating an erroneous ruling.” Id. “The solution for this dilemma is to have the ruling of the first suppression hearing incorporated into the record of the second hearing, and to allow review of the first decision on appeal as if it had been entered anew.” Id.

When the supreme court’s explanations are examined, the corrective nature of this procedure becomes apparent.

The first ruling was not appealed because although the validity of the Terry stop was at issue, the Commonwealth believed the court’s decision to have been independently supportable, i.e., affirmance could have been based on the illegality of the warrantless search performed at the police station on the carrying cases. The collateral estoppel ruling was appealed, however, because the only available grounds for invalidating seizure of the gun was the Terry issue. “Thus, the Superior Court would have been required to affirm or reverse the suppression ruling by passing on the correctness of that single issue. We see nothing wrong with permitting review in this type of situation.” Lagana, 510 Pa. at 484, 509 A.2d at 866.

Our mandate, therefore, is to determine whether the decision to suppress evidence of the burglary was properly taken. We first note that,

If police have reasonable suspicion that criminal activity is afoot, they may make a temporary, investigatory stop even though they lack probable cause to make an arrest. Commonwealth v. O’Neal, 321 Pa.Super. 323, 325, 468 A.2d 500, 502 (1983). If the police reasonably believe their safety is in jeopardy, a limited search for weapons is justified. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). If incriminating evidence establishing probable cause for arrest is discovered after the temporary stop, a lawful arrest may then be made. Commonwealth v. Webster, 291 Pa.Super. 271, 276-277, 435 A.2d 1217, 1219-1220 (1981).

Commonwealth v. Capers, 340 Pa.Super. 136, 141, 489 A.2d 879, 881 (1985).

The trial court held that in fact appellee had, without probable cause, and therefore illegally, been arrested rather than subjected to a stop and frisk procedure.

The arresting officer testified that he arrived on the scene in response to a radio bulletin, spotted and approached appellee, frisked him, finding a gun in the process, and placed him under arrest. (N.T. August 28, 1981, at 7). In the officer’s own estimation, appellee was not, from the initial point of the encounter free to go. (N.T. August 28, 1981, at 15). However, “Whether an arrest has occurred depends upon the impression conveyed to the person detained, not upon the officer’s subjective intentions.” Commonwealth v. McManus, 353 Pa.Super. 355, 359, 509 A.2d 1314, 1316 (1986). There must also have been “an act indicating intention to take appellant into custody.” Commonwealth v. Hook, 313 Pa.Super. 1, 4-5, 459 A.2d 379, 381 (1983). Prior to discovery of the gun, no such act was involved here. We therefore find, contrary to the trial court’s conclusion, that appellee was not under arrest until the weapon was found. We further find that the Terry stop to which he was subjected was itself invalid. Because the source for the radio broadcast motivating the stop was never substantiated, because the description it contained was lacking in specifics, and because there was no information linking the individual described with any crime, the quantum of reasonable suspicion necessary even for a temporary stop was absent. Commonwealth v. Anderson, 481 Pa. 292, 392 A.2d 1298 (1978); Commonwealth v. Lapia, 311 Pa.Super. 264, 457 A.2d 877 (1983), rev’d, on other grounds Commonwealth v. Dugger, 506 Pa. 551, 486 A.2d 382 (1985); contra Commonwealth v. Whelton, 319 Pa.Super. 42, 465 A.2d 1043 (1983).

That being so, seizure of the gun was therefore illegal as was the weapons violation arrest. Burglary charges were lodged only as the result of the suspicion aroused while appellee was in (illegal) custody; his inability to identify the carrying cases and their contents, impounded by the police, provoked the investigation which in turn led to his second arrest. The taint of the initial improper act was thus perpetuated, undermining the legitimacy of all that followed. The evidence of both crimes was therefore properly suppressed.

Order affirmed.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . The items seized were binoculars, cameras, costume jewelry, including several watches, and a coin collection.

      . The information broadcast was that a white male, aged 20-25, wearing a yellow raincoat and carrying a gun was present in the vicinity of 9th & Wharton Streets in Philadelphia.

      . The officer testified that it was raining at the time of the stop and that there were 20 to 30 people in the immediate area.


author: CIRILLO, President Judge:

text:
    514 A.2d 182
    Robert R. BEESE and Mary Ann Beese, His Wife, Appellants, v. Bernard CALEHUFF.
    Superior Court of Pennsylvania.
    Argued June 25, 1986.
    Filed Aug. 27, 1986.

      David W. McNulty, Springfield, for appellants.
    Thomas H. Tropp, Media, for appellee.
    Before CIRILLO, President Judge, and WICKERSHAM and KELLY, JJ.
   CIRILLO, President Judge:

This is an appeal from an order of the Court of Common Pleas of Delaware County. We are called upon to determine whether the hearing court erred in declining to exercise jurisdiction over a child custody dispute.

Appellant Mary Ann Beese married appellee Bernard Calehuff in Delaware in 1970. Subsequently, the couple moved to Florida, where Mary Ann gave birth to Gregory Calehuff in 1976. The couple divorced in Florida in 1981. The court which entered the divorce decree found Gregory to be a child “born of this marriage,” and forbade either party from removing Gregory from Florida without the permission of the other party or the court. The couple was nominally granted joint custody, but Mary Ann had primary physical custody, while appellee had liberal visitation rights. Appellant Mary Ann Beese tried to modify the restriction on Gregory’s removal from Florida in 1984, but the requested relief was denied.

Nonetheless, appellant Mary Ann Beese, without the permission of appellee or the Florida court, brought Gregory to Pennsylvania in 1985. The two moved in with appellant Robert Beese, whom Mary Ann married the year after her divorce from appellee. One day after their arrival, appellants filed a petition in Delaware County Common Pleas Court seeking custody of Gregory. Their position as set forth in that petition is that appellant Robert Beese is actually the biological father of Gregory. In this connection, they assert that appellant Mary Ann Beese had no sexual contact with her then husband, appellee, at the time of Gregory’s conception, but was having sexual intercourse with appellant Robert Beese at that time. They also point to blood tests, unavailable at the time of the Florida court proceedings, which indicate a 94 percent likelihood that Robert Beese is Gregory’s father. They further assert that between the time of their marriage and the filing of the petition, Robert was forced to visit Mary Ann and Gregory by flying to Florida on weekends and holidays. In conclusion they justified Gregory’s removal from Florida on the premise that appellee was himself going to remove Gregory from Florida if given the opportunity, and also that in any event the restriction imposed by the Florida court was unconstitutional. These contentions are not pursued on appeal.

Appellee responded to the petition by filing preliminary objections challenging Pennsylvania’s jurisdiction over the matter. The hearing court sustained the preliminary objections, concluding that pursuant to the Uniform Child Custody Jurisdiction Act, 42 Pa.C.S. § 5341 et seq. (hereafter UCCJA), it could not properly assume jurisdiction over the matter. Specifically, the court pointed to Section 5349 of the UCCJA, which dictates that a Pennsylvania court may decline to exercise jurisdiction if a party has violated a custody order from another state. The hearing court characterized appellant Mary Ann Beese’s removal of Gregory from Florida as precisely the type of wrongdoing contemplated by the UCCJA. Appellants now assert that 1) the UCCJA does not forbid Pennsylvania courts from exercising jurisdiction in this instance; and 2) the hearing court erred in not taking new evidence in conjunction with the preliminary objections because certain factual issues are in dispute.

In arguing that jurisdiction properly lies in Pennsylvania, appellants stress that Robert Beese is a lifelong resident of this Commonwealth, and that since starting school here Gregory has fit in well and taken up a host of wide-ranging extracurricular activities. Appellants’ position skirts the real issue, which is whether a violation of the home state’s custody order should preclude Pennsylvania jurisdiction over the matter.

We conclude, as the hearing court did, that appellant Mary Ann Beese’s removal of Gregory from Florida without the permission of appellee or the Florida court precludes her and her current husband from litigating custody in this Commonwealth. Perhaps the blood tests and other factors cited by appellants can serve as a basis for re-opening the matter in Florida. However, it is not within our province to qualitatively weigh appellants’ conduct. There is absolutely no question that Mary Ann Beese knowingly violated an express and specific restriction imposed by the Florida court. It is this simple uncontradicted fact which justifies the hearing court’s decision to decline jurisdiction. Of course, Section 5349 of the UCCJA does provide that violation of a home state custody order will not preclude jurisdiction if the petitioner demonstrates that the custodial household is detrimental to the well being of the child. However, in this instance it is the parent with principal custody of the child who removed him from the home state. Certainly there is nothing before us to demonstrate that the visits with appellee were detrimental to Gregory’s best interests. We thus find the exception in Section 5349 inapplicable entirely.

In Friedenberger v. Friedenberger, 335 Pa.Super. 622, 485 A.2d 68 (1984), a father unilaterally removed his daughter from her home state even though he was aware of custody proceedings which were underway there. The mother immediately obtained a temporary, custody order in the home state, but the father disregarded it and commenced a separate custody proceeding in Pennsylvania in the hope of obtaining a more favorable decision. We refused to allow Pennsylvania to assume jurisdiction because it would defeat the purpose of the UCCJA if a parent could simply remove a child from the home state and start litigation anew in a second state. The UCCJA was created to assure litigation in the proper forum, avoid abductions undertaken to obtain favorable custody awards, and avoid relitigation of matters already decided in other states. The facts in Friedenberger are distinguishable from those in the matter before us, since, as noted supra, it is the parent who was granted primary custody in this case who removed the child from his home state. We also do not know whether this matter was initiated in Pennsylvania as a matter of convenience or because appellants see little hope for success in the Florida court. Nonetheless, the petitioning parent’s clear violation of a custody order of the home state was dispositive in Friedenberger, as it is here. We can find no basis upon which to allow the courts of this Commonwealth to interfere with a matter in which the home state has already assumed jurisdiction.

Insofar as we agree with the hearing court that jurisdiction does not lie in Pennsylvania, it is unnecessary to consider whether the court erred in failing to take new evidence in conjunction with appellee’s preliminary objections; the facts upon which the court relied are not those which appellants claim are still disputed. The order appealed from is affirmed.

AFFIRMED.

      . As defined at 42 Pa.C.S. § 5343, the "home state" is that state in which the child lived with his parents for the six consecutive months immediately preceding the time involved. It is not disputed that Florida is Gregory’s home state.


author: ROBERTS, Judge:

text:
    514 A.2d 184
    Joseph John MOFFITT v. Judith Marie MOFFITT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1986.
    Filed Aug. 28, 1986.

      Samuel F. Feldman, Allentown, for appellant.
    Sandra A. Sernak, Scranton, for appellee.
    Before OLSZEWSKI, HOFFMAN and ROBERTS, JJ.
   ROBERTS, Judge:

This is an appeal from an order dismissing, for lack of jurisdiction, a counterclaim in a custody action. We hold that in the circumstances presented, the Northampton County Court of Common Pleas has jurisdiction to determine the merits of the counterclaim under the Uniform Child Custody Jurisdiction Act, 42 Pa. C.S.A. §§ 5341-5366. Accordingly, we vacate the order dismissing the counterclaim and remand for proceedings consistent with this opinion.

I.

The Uniform Child Custody Jurisdiction Act (hereinafter “UCCJA” or “the Act”) was designed to insure that custody disputes would be heard in the state where the child and his family had the closest connection, to discourage abductions by parents without legal custody of their children, and to promote cooperation between states issuing custody awards, 42 Pa. C.S.A. § 5342, Commonwealth ex rel. Zaubi v. Zaubi, 275 Pa, Super. 294, 300, 418 A.2d 729 (1980), aff'd, 492 Pa. 183, 423 A.2d 333 (1980). Accordingly, § 5344 of the Act provides three bases for the assumption of jurisdiction in a child custody dispute: first, a Pennsylvania court can take jurisdiction if Pennsylvania a) is the child’s home state at the commencement of the proceeding, or b) had been his “home state” within six months of commencement, and one of his parents continues to live in the Commonwealth. Second, a Pennsylvania court has jurisdiction when the child and at least one of the parties contesting custody have a significant connection with Pennsylvania and substantial evidence is available here concerning the child’s present or future care, protection, training and personal relationships. Finally, in a situation not relevant here, a Pennsylvania court has “parens patriae” jurisdiction when a child is abandoned, abused or dependent. See, generally, 42 Pa. C.S.A. § 5344; Rohrer v. Rohrer, 345 Pa. Super. 469, 476, 498 A.2d 919 (1985); Warman v. Warman, 294 Pa. Super. 285, 293, 439 A.2d 1203 (1982).

Moreover, the Act empowers a court to refrain from asserting jurisdiction, even when otherwise properly held, if the party seeking custody has improperly brought the child to Pennsylvania from another state, 42 Pa. C.S.A. § 5349, Commonwealth ex rel. Zaubi v. Zaubi, 492 Pa. 183, 423 A.2d 333 (1980). A court may also decline jurisdiction when it finds that Pennsylvania is an inconvenient forum and another state is a more convenient forum, 42 Pa. C.S.A. § 5348, Commonwealth ex rel. Octaviano v. Dombrowski, 290 Pa. Super. 322, 326, 434 A.2d 774 (1981). The Pennsylvania version of the Act also includes a provision which allocates jurisdiction between and among courts of common pleas in the same manner in which the Act itself confers jurisdiction between and among courts of different states, 42 Pa. G.S.A. § 5364.

II.

The parties to this appeal were divorced by decree entered in Lackawanna County in June, 1984. When the divorce action began, the Lackawanna court ordered that the mother would have custody of their two children, a ten-year-old son and a six-year-old daughter. However, the record indicates that the father took the son to Florida to live while the divorce was pending. After the divorce decree was entered, the son remained with his father in Florida, apparently with the consent of his mother. Meanwhile, the daughter remained in Pennsylvania with her mother. There were no further proceedings in the Lackawanna divorce action to determine custody of the children.

In 1985, the father brought an action for custody in Lackawanna County. The mother and daughter had since moved to Northampton County, a fact which prompted the court to dismiss the action on venue grounds. In May, 1985 the father filed a second action in Northampton County, seeking custody of both children. He later deleted the claim for his son, who continued to live with him in Florida. The mother responded with a counterclaim for the son, to which the father objected on the ground that Pennsylvania lacked jurisdiction under the UCCJA to consider it.

The trial court agreed, reasoning that Florida, not Pennsylvania, was the son’s “home state”. Further, the court held that a finding that another state was the child’s home state precluded the assumption of jurisdiction on any other ground. In any event, the court explained, it lacked jurisdiction under 42 Pa. C.S.A. § 5364, since Northampton County was neither the child’s “home county”, nor were there “significant contacts” with Northampton to compel the exercise of jurisdiction.

III.

On appeal, the mother argues that the Northampton action was in substance a petition for modification of the existing Lackawanna order. Accordingly, she contends that the son’s “home state” within six months of commencement of the Lackawanna divorce proceeding should control. We need not address the difficult question of when this custody action commenced, however, because we hold that the UCCJA contemplates “significant contacts” jurisdiction even when the “home state” is not the forum state. Moreover, assuming without deciding that Pennsylvania was not the child’s home state, we hold that there are significant contacts here and that the dismissal of the counterclaim was error.

The trial court relied on this court’s decision in Tettis v. Boyum, 317 Pa. Super. 8, 463 A.2d 1056 (1983) to support its conclusion that when a state other than Pennsylvania is a child’s “home state”, a Pennsylvania court cannot exercise jurisdiction on a “significant contacts” theory. While language in Tettis suggests that a Pennsylvania court should refrain from assuming jurisdiction when another state is the child’s home state, 317 Pa. Super, at 15, 463 A.2d 1056, the case itself held that the exercise of jurisdiction by Pennsylvania was proper, even though the child’s “home state” was Texas. The court wrote: “ ... while home state jurisdiction is favored as the preferable basis of jurisdiction ..., ‘the Act clearly implies that there will be factual situations that will impel a court to accept jurisdiction even when ‘home’ jurisdiction exists elsewhere’ ”, 317 Pa. Super, at 18 (citations omitted). See also Hattoum v. Hattoum, 295 Pa. Super. 169, 175, 441 A.2d 403 (1982).

The question for resolution thus becomes whether this factual situation is one which impels a court to accept jurisdiction. More precisely, our determination depends on whether an exercise of “significant contacts” jurisdiction substantially furthers the policies underlying the UCCJA.

Clearly, each individual involved in this custody litigation has a significant connection with Pennsylvania. The child’s mother and sister live in Pennsylvania, and the child spent the first several years of his life here. Moreover, the child’s father, who only recently moved to Florida from Pennsylvania, returned here to bring the original custody action. Much of the evidence regarding the “future care, protection and relationships” of the daughter will also be relevant in determining the custody of the son. Even evidence regarding the potential lifestyle of the children in Florida is available in Pennsylvania by virtue of the father’s willingness to bring suit here. Cf. Levin v. Barish, 505 Pa. 514, 522-23, 481 A.2d 1183 (1984) (plaintiff in equity action cannot assert lack of jurisdiction to bar court’s order forcing him to serve as an escrow agent); Henderson v. Delaware River Joint Toll Bridge Commission, 362 Pa. 475, 491, 66 A.2d 843 (1949) (intervening plaintiffs, having voluntarily joined the litigation, not in a position to challenge court’s jurisdiction).

We have no question that the exercise of “significant contacts” jurisdiction substantially furthers the policies underlying the UCCJA. In light of the father’s decision to bring his original custody action here, .disagreement over jurisdiction between our courts and the courts of Florida is unlikely. Moreover, the child and his family clearly are more closely connected with Pennsylvania than with Florida, whose only contact is the father’s and son’s recent move there.

IV.

The trial court also held that regardless of whether there is jurisdiction over the counterclaim in Pennsylvania, there is no jurisdiction in Northampton County. In reaching this conclusion, the trial court relied on 42 Pa. C.S.A. § 5364, which allocates jurisdiction between Pennsylvania counties in the same manner as the UCCJA allocates jurisdiction between states. In this instance, § 5364 limits the exercise of jurisdiction unless the requirements of § 5344(a) are met with respect to the county as well as the state. The trial court reasoned that since the child who is the subject of the counterclaim has never lived in Northampton County, he has no contact there.

Much of the logic which allows the courts of Pennsylvania to exercise jurisdiction over this counterclaim allows Northampton County’s courts to do the same. While it may be desirable that the custody determination be made in counties where the child has lived, “significant contacts” jurisdiction contemplates contacts other than past residence or domicile in the county where jurisdiction is to be exercised. Cf. In re Sagan, 261 Pa. Super. 384, 387-88, 396 A.2d 450 (1978) (pre-UCCJA child custody jurisdiction depends on residence or domicile of child). All that is required is that the child have a “connection” with the county which is “significant”. Here, as we have noted, the child’s mother and sister live in Northampton County, and the father has initiated a related custody action there. Clearly, these contacts are sufficient to warrant the exercise of jurisdiction by Pennsylvania. We hold that they also allow the exercise of jurisdiction by Northampton County.

Order vacated. Remanded for proceedings consistent with this opinion.

Jurisdiction is relinquished.


author: BROSKY, Judge:

text:
    514 A.2d 188
    Ronald GOODRICH and Cynthia Goodrich, Appellants, v. LUZERNE APPAREL MANUFACTURING CORPORATION, formerly known as Luzerne Outerwear Manufacturing Corporation, Shamokin Area Industrial Corporation, Cutler-Hamer, Inc., Eaton Corporation, Dauphin Electrical Supplies Company, Underwriters Laboratories, Inc., Beck Electric Company, H.F. Lenz Co., Westinghouse Electric Corporation, Pennsylvania Power & Light Company, Hayes, Large, Suckling, & Fruth, formerly Rea, Hayes, Large and Suckling, formerly Campbell, Rea, Hayes & Large, formerly Hunter, Campbell, Hayes & Large, Middle Department Inspection Agency, Keystone Inspection Agency, and Ilsco Corporation, v. C.F. KING t/d/b/a C.F. King Contractors, and John F. Miles Company, Inc.
    Superior Court of Pennsylvania.
    Argued April 21, 1986.
    Filed Aug. 28, 1986.

      Edward E. Knauss, IV, Harrisburg, for appellants.
    Robert A. Lerman, York, for Luzerne Apparel, appellee.
    Charles W. Rubendall, II, Harrisburg, for Underwriters, appellee.
    Before: WICKERSHAM, BROSKY and WATKINS, JJ.
   BROSKY, Judge:

This case is before us on appeal from summary judgment entered by the trial court in favor of Underwriters Laboratories, Inc. (hereinafter referred to as UL). There is no argument by appellants that material issues of fact remain unresolved. The sole issues for our consideration are: (1) Whether a party which approved the design of an electrical panel board can be said to have been involved in “performing or furnishing the design, planning, supervision or observation of construction .. .of any improvement to real property” within the meaning of 42 Pa.C.S. § 5536; and (2) Whether that statute applies to designers of products. We find that the trial court correctly applied the statute to this case, and we therefore affirm.

Appellants filed a civil action against numerous defendants, including appellee UL. UL filed a Motion for Summary Judgment, claiming that the action was barred by the statute of limitations, 42 Pa.C.S. § 5536. Section (a) of that statute provides:

(a) General rule. — Except as provided in subsection (b), a civil action or proceeding brought against any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real property must be commenced within 12 years after completion of construction of such improvement to recover damages for:
(1) Any deficiency in the design, planning, supervision or observation of construction or construction of the improvement.
(2) Injury to property, real or personal, arising out of any such deficiency.
(3) Injury to the person or for wrongful death arising out of any such deficiency.
(4) Contribution or indemnity for damages sustained on account of any injury mentioned in paragraph (2) or (3).

The trial court granted the motion for summary judgment, finding that UL’s approval of the design of the panel board was equivalent to designing the panel board, for purposes of the statute. We agree.

There appears to be no dispute that UL is a testing laboratory which determines whether products, including their detailed plans and specifications, comply with minimum safety requirements, or that UL permits manufacturers to use its registered trademark on products which meet UL’s standards. As such, UL is acting as a control on products which a manufacturer is seeking to place in commerce. It serves the same purpose an additional testing site in the manufacturer’s own plant would serve, with the advantage of apprising the public that the product has been approved by a well-known independent laboratory. We see no logical reason to find that the design of a product submitted to UL for approval is completed before such approval is obtained. We find that UL’s approval of the panel board in the case before us comes within the meaning of “performing or furnishing the design” within the scope of the statute.

Appellants concede that their second issue has been decided by a panel of our court in Catanzaro v. Wasco Products, Inc., 339 Pa.Super. 481, 489 A.2d 262 (1985). Appellants submit that that case was incorrectly decided, and they therefore request reconsideration of that decision. This argument is better directed to our court en banc in a motion for reargument, or to the Supreme Court.

In view of the foregoing, we affirm.

      . Issues raised in the "Brief of Defendants, Luzerne And Shamokin, In Support of Appellant’s [sic] Appeal” will not be considered. If these parties were aggrieved by the trial court’s order, they could have appealed separately or could have joined in appellants’ appeal. Pa.R.A.P. 501, 512. Since they did neither, issues raised by them will not be considered.


author: DEL SOLE, Judge:

text:
    514 A.2d 189
    COMMONWEALTH of Pennsylvania, Appellant, v. Jon Otis VANDER WEELE.
    Superior Court of Pennsylvania.
    Argued April 30, 1986.
    Filed Aug. 12, 1986.

      Thomas P. Agresti, Assistant District Attorney, Erie, for appellant Com.
    Raymond Pagliari, Erie, for appellee.
    Before DEL SOLE, MONTEMURO and POPOVICH, JJ.
   DEL SOLE, Judge:

Jon Otis Vander Weele was found guilty after a jury trial of Corruption of Minors and Indecent Assault with respect to his conduct toward his minor step-daughter during the period of December 2, 1983 through February 14, 1984.

Following the filing of post-trial motions, the court en banc entered an Order granting Appellee’s Motion for New Trial. The Court determined the trial court erred, 1) in permitting the Commonwealth to cross-examine character witnesses with regard to guilty pleas entered by Appellee to prior charges of Disorderly Conduct and Criminal Mischief; 2) in its instruction to the jury relating to character evidence; and 3) in determining that records of Children’s Services of Erie County and the Family Crisis Organization enjoy an absolute privilege under 42 Pa.C.S.A. § 5944.

This is an appeal by the Commonwealth pursuant to Pa.R.App.P. 311(a)(5) from the Order granting Appellee’s Motion for New Trial. In support of its’ position, the Commonwealth argues, 1) cross-examination as to witnesses knowledge of Appellee’s prior convictions was proper in light of the specific character trait in issue, that being “moral character” or “moral uprightness”; 2) the trial court properly instructed the jury as to the effect and weight it was to give certain character testimony; and 3) Appellee is not entitled to the results of an in camera inspection by the trial court of certain alleged statements made by the victim to either Children’s Services or the Family Crisis Organization, especially since Appellee never requested such an inspection.

Initially we observe that:

[o]ur standard of review in this case is defined by the Supreme Court's holding in Commonwealth v. White, 482 Pa. 197, 199, 393 A.2d 447, 449 (1978): ‘As with a denial of a motion for new trial, so with the grant of such a motion, our review is limited to ascertaining whether the lower court abused its discretion or committed an error law.’

Commonwealth v. Frazier, 331 Pa.Super. 128, 132-133, 480 A.2d 276, 279 (1984).

“It has long been the law in Pennsylvania that an individual on trial for an offense against the criminal law is permitted to introduce evidence of his good reputation in any respect which has ‘proper relation to the subject matter’ of the charge in issue.” Commonwealth v. Luther, 317 Pa.Super. 41, 49, 463 A.2d 1073, 1077 (1983). The charges in issue, as previously stated, are Corruption of Minors and Indecent Assault. In an effort to introduce evidence of his good reputation, Appellee called three character witnesses and asked that based upon their familiarity with others who know Appellee in the community, “does he have a reputation for moral character or moral uprightness?” to which each essentially responded that Appellee’s reputation for this trait is good. (Trial Transcript at 110, 118, 122-123).

The utilization of character witnesses is not however without attendant risk. “Character witnesses, like any other witnesses, can be subjected to cross-examination and it is the scope of the cross-examination that has been a troublesome area for the courts, commentators and the profession.” Commonwealth v. Scott, 496 Pa. 188, 193, 436 A.2d 607, 610 (1981). Furthermore, “[t]he extent of the cross-examination is within the discretion of the trial judge, who will not be reversed except for a clear abuse of discretion or an error law.” Commonwealth v. Hammond, 308 Pa.Super. 139, 147, 454 A.2d 60, 64 (1982).

It is the scope of cross-examination which forms the basis of the Commonwealth’s first assignment of error. At a sidebar conference, the Commonwealth indicated to the court that Appellee had pled guilty to disorderly conduct and criminal mischief arising out of an incident in which Appellee fired a rifle in the back yard of his home. The Commonwealth further noted that it intended to question character witnesses concerning the convictions. Counsel for Appellee objected on the basis that neither of the convictions go to the character trait involved on direct examination as nothing was asked about nonviolence or law-abiding character. The trial court disagreed and permitted this line of cross-examination.

As a general statement, “[t]he cross-examination of a character witness for the defense regarding the defendant’s prior criminal record is not an abuse or [sic] discretion as the defense opens the door to such an inquiry by placing his reputation at issue in calling such witnesses.” Commonwealth v. Hammond, 308 Pa.Super. at 149, 454 A.2d at 65. There are however limits. For example, until our Supreme Courts decision in Scott, when a defendant:

introduced evidence of his own good character, the Commonwealth could then cross-examine the character witness as to whether or not he or she had ever heard persons in the neighborhood attribute particular offenses to the defendant____ The cross-examination, however, was required to pertain to offenses which related to the character trait vouched for on direct examination____

Commonwealth v. Fawcett, 297 Pa.Super. 379, 385, 443 A.2d 1172, 1175 (1982) (citations omitted).

In Scott however:

the Supreme Court abrogated the rule which permitted character witnesses to be cross-examined regarding arrests even when they pertained to the character trait vouched for on direct examination. By so doing, the court has cast a cloud of doubt on the right to cross-examine a character witness concerning any and all prior, relevant offenses absent a conviction therefor.

Commonwealth v. Fawcett, 297 Pa.Super. at 386, 443 A.2d at 1175.

What has not changed, and is of importance to our resolution of this claim is that, “[ejvidence of good character offered by a defendant in a criminal prosecution must be limited to his general reputation for the particular trait or traits of character involved in the commission of the crime charged____ The cross-examination of such witnesses by the Commonwealth must be limited to the same traits.” Commonwealth v. Luther, 317 Pa.Super. at 49-50, 463 A.2d at 1077. For instance, when a character witness testifies to being familiar with a defendant’s reputation for truthfulness, cross-examination pertaining to a crime of assault is improper. Commonwealth v. Fawcett, 297 Pa. Super. at 384-85, 443 A.2d at 1175. Similarly, there is no relationship between the crimes of Disorderly Conduct and Criminal Mischief and the character trait to which the witnesses testified, that being “moral character” or “moral uprightness”.

The Commonwealth next contends that the trial court properly instructed the jury concerning the effect and weight to be given character evidence. “We begin our analysis by noting that a defendant who produces character testimony of a good reputation in the community is entitled to a jury instruction that character evidence alone may be sufficient to raise reasonable doubt and, thus, justify acquital of the charges.” Commonwealth v. Belmonte, 349 Pa.Super. 1, 20, 502 A.2d 1241, 1251 (1985). “This court has made clear that ‘[i]n a case ... where intent and credibility are decisive factors leading to either acquital or conviction, the accused’s reputation is of paramount importance. Indeed, evidence of good character may, in spite of all evidence to the contrary, raise a reasonable doubt in the minds of the jury.” Commonwealth v. Luther, 317 Pa.Super. at 50, 463 A.2d at 1078. However, “[a] court may use its own language in charging the jury rather than that proposed by counsel if the issue is adequately, accurately and clearly presented.” Commonwealth v. Sisco, 484 Pa. 85, 89, 398 A.2d 955, 957 (1979).

In the case sub judice, the court instructed the jury in the following manner with regard to character evidence:

Now, reputation evidence is substantive evidence and it’s important that you should consider it as such. If you believe the testimony that he does have a good reputation for these elements, it’s possible that that could create a reasonable doubt in your mind as to his guilt. On the other hand, if you determine that the defendant actually did commit these crimes even though he has a good reputation, you can’t say he’s not guilty if you find that he did it, you don’t let him go just because he does have a good reputation.

(Trial Transcript at 165).

As the court en banc found, absent from the above instruction is the requested and necessary charge that character evidence alone may be sufficient to raise a reasonable doubt and thus justify an acquittal.

The Commonwealth’s final claim is not totally without merit. Appellee filed pre-trial motions seeking among other things, permission to inspect records of Children’s Services of Erie County and the Family Crisis Organization. The Commonwealth answered that the requested records are confidential and not discoverable, citing 42 Pa.C.S.A. § 5945.1 as authority. The trial court denied Appellees motion and the court en banc found this to be error. We agree. Our Supreme Court in Commonwealth v. Ritchie, 509 Pa. 357, 363, 502 A.2d 148, 151 (1985), has indicated that the confidentiality provision of the Child Protective Services Law, 11 P.S. § 2215(a) differ from the confidentiality and privilege provision of 42 Pa.C.S. § 5945.1 relating to sexual assault counsellors. The trial court therefore erred in its determination that 42 Pa.C.S. § 5945.1 is dispositive of Appellee’s request for inspection of records. However, we agree with the Commonwealth that in the event of a retrial, it will be for the trial court to determine whether or not Appellee would be entitled to the records in question under 11 P.S. 2215(a) and the in camera inspection requirement set forth in Ritchie, in the event Appellee makes such a request.

Therefore, we affirm the order of the trial court granting Appellee’s Motion for new trial as the trial court has neither abused its discretion nor committed an error of law.

POPOVICH, J. concurs in the result.

      . 18 Pa.C.S.A. § 6301
      (a) Offense defined. — Whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or encourages any such minor in the commission of any crime, or who knowingly assists or encourages such minor in violating his or her parole or any order of court, is guilty of a misdemeanor of the first degree.
      (b) Adjudication of delinquincy unnecessary. — A conviction under the provisions of this section may be had whether or not the jurisdiction of any juvenile court has attached or shall thereafter attach to such minor or whether or not such minor has been adjudicated a delinquent.
      (c) Presumptions. — In trials and hearings upon charges of violating the provisions of this section, knowledge of the minor’s age and of the court’s orders and decrees concerning such minor shall be presumed in the absence of proof to the contrary.
      (d) Mistake as to age.—
      (1) Whenever in this section the criminality of conduct depends upon the corruption of a minor whose actual age is under 16 years, it is no defense that the actor did not know the age of the minor or reasonably believed the minor to be older than 18 years.
      (2) Whenever in this section the criminality of conduct depends upon the corruption of a minor whose actual age is 16 years or more but less than 18 years, it is a defense for the actor to prove by a preponderance of the evidence that he reasonably believed the minor to be 18 years or older.
      1978, July 1, P.L. 573, No. 104, § 1, effective in 60 days.

      . 18 Pa.C.S.A. § 3126

        A person who has indecent contact with another not his spouse, or causes such other to have indecent contact with him is guilty of indecent assault, a misdemeanor of the second degree, if:
      (1) He does so without the consent of the other person;
      (2) He knows that the other person suffers from a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct;
      (3) He knows that the other person is unaware that an indecent contact is being committed;
      (4) He has substantially impaired the other person’s power to appraise or control his or her conduct, by administering or employing without the knowledge of the other drugs, intoxicants or other means for the purpose of preventing resistance; or
      (5) The other person is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over him.
      1972, Dec. 6, P.L. 1482, No. 334, § 1, effective June 6, 1973. As amended 1976, May 18, P.L. 120, No. 53 § 1, effective in 30 days.

      . The specific testimony at issue is as follows:
      Q. I'm going to ask you a couple of questions. First of all, your husband is Frank Abate, the District Justice; is that correct? A. Yes, he is.
      Q. Okay. And he has been privy to these conversations regarding the morality or uprightness of this individual?
      A. Okay.
      Q. Has Frank Abate been involved in any of the discussions over this period of time as to the morality and uprightness of this individual?
      A. We have known Jon.
      Q. My question is yes or no, has he been involved in conversations about his morality and uprightness?
      A. Yes.
      Q. Okay. Thank you. Now, under what circumstances would the topic turn to the morality and uprightness of Jon Vander Weele? What would cause a group of people in the community to talk about that?
      A. Well, different things have come up. I take calls for my husband, being he is a district justice, he receives many calls at home. When he's not there, I take the calls. So I have come into contact with the police; calling for different things they talk to me. Q. Okay.
      A. And will ask me, you know, where he is, can they have this or that.
      Q. On Mr. Vander Weele?
      A. Yes.
      Q. Would one of those times be when Mr. Vander Weele pled guilty to two counts of disorderly conduct and criminal mischief arising out of a firing of a weapon in his back yard, a rifle?
      A. Yes.
      (Trial Transcript at 119-120).
      The following cross-examination of another character witness occurred:

        Q. Mr. Fish, I don’t need to introduce myself to you. We’ve known each other for a while. You represented Mr. Vander Weele on those charges before District Justice Abate regarding — resulting in a plea of disorderly — two disorderly conducts and—
      A. Yes, I did.
      Q. So, sir, you did represent Mr. Vander Weele at the time he pled guilty to those charges; is that correct?
      A. Yes, I did.
      Q. Would that fact had these people that you have discussed the moral uprightness and moral character of this particular individual, would that fact have changed their opinions at all with respect to their conclusions as to his morality, moral character and morality for uprightness?
      A. No.
      (Trial Transcript at 123-124).

      . In 2 Wharton's Criminal Evidence § 426 (2d ed. 1972) the author provides by way of illustration that a character witness may be asked on cross-examination in a prosecution for rape or some other sex crime, about crimes in which the defendant had assaulted or ravished several women, exposed himself to females, been convicted of bastardy, and taken liberties with the prosecutrix’s sister, or molested other females.


text:
    514 A.2d 194
    William EDNEY v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY and John Collington. Appeal of SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY.
    Superior Court of Pennsylvania.
    Argued June 25, 1986.
    Decided Aug. 27, 1986.

      Delores R. Lanier, Philadelphia, for SEPTA, appellant.
    Mark Feinman, Philadelphia, for Edney, appellee.
    Before CIRILLO, President Judge, and WICKERSHAM and KELLY, JJ.
   CIRILLO, President Judge:

This is an appeal from an order entered in the Court of Common Pleas of Philadelphia County denying appellant’s petition to vacate a previous sanction order by which judgment was entered on behalf of appellee. On appeal, appellant contends that, (1) the sanctions imposed by the trial court were overly harsh in that they effectively precluded appellant from entering any defense; and (2) the trial court abused its discretion in entering this type of sanction. We find that the order of December 6, 1985 is not appealable; therefore, we quash the present appeal.

Appellee, William Edney, initiated a major, non-jury trial against appellant, Southeastern Pennsylvania Transportation Authority (SEPTA) and co-defendant, John Collington, driver of an automobile involved in an accident with a trolley owned and operated by SEPTA. Appellee was a passenger on the trolley at the time of the accident. On July 11,1984, appellee forwarded to SEPTA a set of written interrogatories and a request for production of documents.

SEPTA failed to return the answers or respond to the request for the production of documents, and appellee filed a motion with the Court of Common Pleas of Philadelphia County to compel compliance with the discovery order. A copy of the motion was mailed to SEPTA at this time. SEPTA neither complied with, nor objected to this motion.

On November 14, 1984, the Honorable Ethan Allen Doty ordered SEPTA to file full and complete answers to appellee’s interrogatories, and produce the requested documents within twenty days, or suffer appropriate sanctions. Seven months passed with no response from SEPTA. Appellee then filed a motion asking that further sanctions be imposed by the court against SEPTA. A copy of this motion was mailed to SEPTA which again failed to respond. On August 7, 1985, Judge Doty ordered judgment entered on behalf of appellee as sanction against SEPTA for failure to comply with the original court order of November 14, 1984. Judgment was entered on the issue of liability only, with damages to be assessed at arbitration.

SEPTA filed its answers to interrogatories on August 23, 1985. Three days later SEPTA filed additional answers to interrogatories, as well as a crossclaim against co-defendant, John Collington under Pa.R.C.P. 2252(d), and a petition to vacate the order of Judge Doty dated August 7, 1985.

On December 6,1985, the Honorable Alfred J. DiBona Jr. issued an order denying the petition of SEPTA to vacate the order of August 7, 1985, and on February 5, 1986, Judge DiBona issued his opinion affirming his previous order.

The present case falls squarely within this Court’s recent decisions in Simpson v. Allstate Insurance, 350 Pa.Super. 239, 504 A.2d 335 (1986); Livolsi v. Crosby, 334 Pa.Super. 34, 495 A.2d 1384 (1985); Miller Oral Surgery, Inc. v. Dinello, 342 Pa.Super. 577, 493 A.2d 741 (1985). These cases hold that a judgment entered as a sanction for failure to comply with a discovery order is not subject to a petition to open. Rather, a default judgment of this nature is open only to a motion for reconsideration, which motion the trial court must grant, if at all, within thirty days of the judgment. Denial of such a motion is not appealable.

In Miller, we first cited Sims v. Feingold, 329 Pa.Super. 437, 478 A.2d 868 (1984) to establish that an order entering a default judgment as a discovery sanction is interlocutory and not appealable until after damages have been determined.

Appellants cannot obtain appellate review of the trial court’s sanction order under the guise of a petition to open the default judgment entered on the issue of liability. The judgment entered solely on the issue of liability did not terminate the litigation. Therefore, it was interlocutory and unappealable; it will not be rendered final and appealable because the trial court subsequently denied a petition to open it.

Miller Oral Surgery, Inc. v. Dinello, supra, 342 Pa.Superior Ct. at 581, 493 A.2d at 743. We then examined the nature of a default judgment entered by the trial court pursuant to Pa.R.C.P. 4019(c)(3).

A sanction order entering judgment pursuant to Pa.R. C.P. 4019(c)(3) is not subject to a petition to open. There is no authority in the rules for such a petition, and orderly practice suggests that there should be none____ A party may request a court to reconsider a sanction order entering judgment, of course, but neither reconsideration nor refusal to reconsider will transform an interlocutory order into one that is final and appealable.

Id., 342 Pa.Superior Ct. at 581, 493 A.2d at 743. After reaching this determination, we considered the possible application of Pa.R.A.P. 311(a)(1) which lists those interlocutory orders appealable as of right:

This rule [Pa.R.App.P. 311(a)(1) ] does not aid appellants in the instant case. As we have observed the trial court’s sanction order entering judgment on the issue of liability in this case was not properly the subject of a petition to open. Appellants’ petition, therefore, must be treated as a petition to the trial court to reconsider its prior order____ The trial court’s refusal to reconsider its prior order, however, is not appealable.

Id., 342 Pa.Superior Ct. at 581, 493 A.2d at 743-44.

Our rationale in Miller is particularly applicable to the present case. Here, as in Miller, the trial court entered judgment in favor of appellee as a sanction for appellant’s failure to comply with discovery orders. This appeal then purportedly arose from the denial of appellant’s petition to vacate the sanction judgment. However, as stated in Miller, supra, denial of a petition for reconsideration is not appealable. This appeal therefore is not properly taken and must be quashed on that basis.

The issues submitted for our consideration also provide a different basis for this appeal. Should we instead focus our review on the subject of this appeal as stated in the issues raised by SEPTA, we must shift our review to the sanction order of August 7, 1985, entering default judgment in favor of appellee. That judgment, entered pursuant to Pa.R.C.P. 4019(c)(3), determining liability only, constituted a default judgment, interlocutory in nature. A default judgment of this nature is not appealable until judgment has also been entered on the issue of damages. Miller, supra.

Thus, whether this appeal presents for our consideration, either the denial of appellant’s petition for reconsideration, or the validity of the sanction order entering default judgment, we find that the appeal at present is improper and therefore must be quashed. “By quashing the present appeal and refusing to review the propriety of the trial court’s sanction order at this time, we limit to one the number of appeals which can be spawned by the same action.” Miller Oral Surgery, Inc. v. Dinello, supra, 342 Pa.Superior Ct. at 582, 493 A.2d at 744.

Accordingly, the present appeal is quashed.