author: CIRILLO, Judge:

text:
    603 A.2d 602
    George N. HILL, Jr. v. TRAILMOBILE, INC., Blue Line Transfer Co., Central Hydraulic Co., Milwaukee Cylinder, a Versa/Tek Co., Broomall Truck Repair Co., and Robert Carl Company. Appeal of TRAILMOBILE, INC.
    Superior Court of Pennsylvania.
    Argued Dec. 11, 1991.
    Filed Feb. 19, 1992.

      R. Bruce Morrison, Philadelphia, for appellant.
    Robert M. Ruzzi, Philadelphia, for Milwaukee Cylinder, appellee.
    Henry P. Stonelake, Philadelphia, for Robert Carl Co., appellee.
    Before CIRILLO, DEL SOLE and MONTEMURO, JJ.
   CIRILLO, Judge:

This is an appeal from an order entered in the Court of Common Pleas of Delaware County. We affirm.

This cause of action in tort arises from personal injuries sustained by George H. Hill, Jr. on February 29,1984 when a truck trailer he was unloading suddenly shifted and threw him backward onto the floor of the trailer. Hill injured his lower back and head and sustained internal injuries to the groin area which resulted in chronic back pain and ultimately the loss of one testicle. The accident occurred when an allegedly defective power gear in a hydraulic lift, which was used to raise the trailer to the level of the loading platform, failed and caused the hydraulic lift to collapse. In May of 1985 Hill filed an action in strict liability against Blue Line Transfer Company (“Blue Line”), the company which had hired him to drive the trailer, and appellant Trailmobile, Inc. (“Trailmobile”), the manufacturer of the trailer.

Trailmobile and Blue Line cross-claimed, each asserting that the other was liable for Hill’s injuries. Thereafter, Trailmobile and Blue Line entered into a stipulation and agreement to join as additional defendants the companies responsible for the design, manufacture and sale of the allegedly defective power gear. Pursuant to their agreement, in January of 1986 Blue Line and Trailmobile joined Central Hydraulic Company, the manufacturer of the defective power gear, and Milwaukee Cylinder, which had purchased Central Hydraulic, as additional defendants. In August of 1986, Blue Line and Trailmobile also joined the Broomall Truck Repair Company, which had been responsible for servicing the trailer, and the following November they joined Carl Young Company (“Carl Young”), the liquidators in the sale of Central Hydraulic.

In August of 1987, more than two years after Hill filed his complaint, Blue Line and Trailmobile petitioned the trial court for leave to join W.T. Young & Co., the parent company of the then-defunct Central Hydraulic, as the final additional defendant. Plaintiff Hill objected to the proposed joinder as unfair and prejudicial to him. Citing the four additional defendants already joined and the massive discovery requests their joinder had entailed, Hill argued that granting another joinder would create an unreasonable and burdensome delay in resolving his claim. Moreover, Hill contended, the requested joinder would not promote judicial economy because the asserted liability of W.T. Young & Co. was based on an entirely different factual background and involved separate and distinct legal issues from those raised in his complaint. The trial court denied the requested joinder, “[d]ue to the running of the statute of limitations and the long delay in Hill having his claim pursued.” (Trial court opinion, page 5). See Kovalesky v. Esther Williams Swimming Pools, 345 Pa.Super. 95, 105, 497 A.2d 661, 666 (1985) (The rules pertaining to joinder are “an attempt to provide a means to simplify and expedite the disposition of matters involving numerous parties ... without subjecting the original plaintiff to unreasonable delay in the prosecution of his portion of the litigation.”)

Blue Line and Broomall Truck Repair Company settled with Hill through a joint-tortfeasor release, thereby eliminating themselves as parties to the suit. The remaining three companies, Trailmobile, Milwaukee Cylinder and Carl Young also entered into a joint tortfeasor release prior to trial, with each defendant paying Hill $76,666.66. However, the companies agreed to proceed to trial to have the court determine which of the three of them alone was responsible to Hill for the injuries caused by the defective power gear.

In preparation for trial the three defendants entered into an Agreement and Stipulation of Case Stated, and in March of 1991 the trial court heard argument on the indemnification issue. The court found in favor of Milwaukee Cylinder and Carl Young Company, and ordered Trailmobile to pay each company $76,666.67. After its post-trial motions were filed and denied, Trailmobile filed this timely appeal.

Trailmobile presents one issue for our review:

Whether the Court below erred in concluding that the lessor of a truck trailer which contained a latently defective component part was not entitled to indemnification from the product line successor to the manufacturer of that component part?

In Pennsylvania, when one company sells or transfers all of its assets to another company, the purchasing or receiving company is not responsible for the debts and liabilities of the selling company simply because it acquired the seller’s property. Husak v. Berkel, 234 Pa.Super. 452, 457, 341 A.2d 174, 176-77 (1975). In order to hold the acquiring, or successor, company responsible for the seller’s liabilities one of the following must be established: 1) the purchaser expressly or impliedly agreed to assume the obligations; 2) the transaction amounted to a consolidation or merger; 3) the purchasing corporation was merely a continuation of the selling corporation; 4) the transaction was fraudulently entered into to escape liability; and 5) the transfer was without adequate consideration and no provisions were made for creditors of the selling corporation. Id. See also Simmers v. American Cyanamid, 394 Pa.Super. 464, 576 A.2d 376 (1990).

Unjust decisions often resulted when the limited exceptions could not provide relief for plaintiffs suing successor corporations in strict liability for personal injuries caused by defective products. Therefore, in 1981 this court adopted the product-line exception to successor liability which provides that:

Where one corporation acquires all or substantially all the manufacturing assets of another corporation, even if exclusively for cash, and undertakes essentially the same manufacturing operation as the selling corporation, the purchasing corporation is strictly liable for injuries caused by defects in units of the same product line, even if previously manufactured and distributed by the selling corporation or its predecessor.

Dawejko v. Jorgensen Steel Company, 290 Pa.Super. 15, 23, 434 A.2d 106, 110 (1981), quoting Ramirez v. Amsted Industries, Inc., 86 N.J. 332, 431 A.2d 811 (1981).

Prior to adoption of the product-line exception, courts throughout the country had provided relief for plaintiffs injured by a product manufactured by a predecessor corporation by expanding or extending one of the five recognized exceptions. However, such extension of the “continuation” exception was generally restricted to situations in which there was only one corporation after the transfer and there was also a common identity of officers, directors, and stock between the selling and purchasing corporations. Id., 290 Pa.Superior Ct. at 19, 434 A.2d at 107-08. Plaintiffs injured by products manufactured by predecessor corporations purchased by multiple corporations, or which shared no identity of corporate structure were, unfortunately, left without a remedy in strict liability. Even the expansion of the “continuation” exception to include successor corporations which were in a business of a similar nature failed to provide adequate relief. Id.

In becoming one of the few states to adopt the product-line exception to successor liability, this court explained its change in philosophy as “an attempt to implement the ‘social policies underlying strict products liability.’ ” Id., 290 Pa.Superior Ct. at 26, 434 A.2d at 111, quoting Ramirez v. Amsted Industries, Inc., 86 N.J. 332, 358, 431 A.2d 811, 825 (1981). The court explained that strict tort liability for manufacturers of defective products rests on the proposition that

“ ‘the cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business.’ ” ... Thus, “the paramount policy to be promoted by the rule is the protection of otherwise defenseless victims of manufacturing defects and the spreading throughout society of the cost of compensating them.” (citations omitted).

Id., 290 Pa.Superior Ct. at 22, 434 A.2d at 109 (emphasis added).

In adopting the product-line exception to successor liability for the Commonwealth, the court was particularly concerned that the underlying policy considerations which prompted adoption of the exception be understood and used as a guideline in its application. The court also stated that the product-line exception to the general rule of no liability for successor corporations may only be applied when the following three circumstances have each been established:

(1) the virtual destruction of the plaintiff’s remedies against the original manufacturer caused by the successor’s acquisition of the business, (2) the successor’s ability to assume the original manufacturer’s risk-spreading rule, and (3) the fairness of requiring the successor to assume a responsibility for defective products that was a burden necessarily attached to the original manufacturer’s good will being employed by the successor in the continued operation of the business.

Dawejko, 290 Pa.Super. at 22, 434 A.2d at 109, quoting Ray v. Alad Corp., 19 Cal.3d 22, 136 Cal.Rptr. 574, 560 P.2d 3 (1977). The court continued to explain that “[w]e also believe it better not to phrase the new exception too tightly. Given its philosophical origin, it should be phrased in general terms, so that in any particular case the court may consider whether it is just to impose liability on the successor corporation.” Id., 290 Pa. Superior Ct. at 26, 434 A.2d at 111 (emphasis added).

Original defendant Trailmobile is now asking this court to extend the product-line exception to successor liability to apply for the first time to defendants. This we are unwilling to do. The product-line exception is a remedy which was created to afford relief to plaintiffs, victims of manufacturing defects who, due to the sale or transfer of the manufacturing corporation, otherwise would have no avenue of redress for injuries caused by defective products. Dawejko, supra. Trailmobile’s effort to obtain indemnification from co-defendants through the product-line exception subverts the policy considerations that prompted adoption of the rule. See Dawejko, supra. In addition, the record reveals that Trailmobile failed to join W.T. Young, Inc., parent company of the now-defunct Central Hydraulic, and the entity responsible for all liabilities of Central Hydraulic, as an additional defendant on a timely basis. As a result of its own failure to act, Trailmobile was barred from seeking indemnification from W.T. Young, Inc. in this particular cause of action. Consequently, there is no unjust result to compel an extension of the plaintiff’s exception to successor liability. Id. Neither are we inclined to add additional exceptions to the rule of no liability for product-line successors when the defendant has alternative avenues of redress.

Trailmobile's efforts to extend the product-line exception in this case is particularly inappropriate. In Dawejko, the plaintiff’s only remedy was against the corporation that manufactured the “Mansaver” lifting machine, or its successor. Here, plaintiff Hill had causes of action in strict liability against multiple defendants. Similarly, Trailmobile has several co-defendants from which it may seek indemnification. Thus Trailmobile cannot even satisfy the first element — the virtual destruction of the plaintiff’s [or, as suggested, defendant’s] remedies against the original manufacturer — of the underlying requirement for the application of the product-line exception. Dawejko, supra. Moreover, neither Carl Young Company nor Milwaukee Cylinder, the co-defendants from which Trailmobile is seeking indemnification, can properly be considered a successor corporation to Central Hydraulic.

In analyzing the relationship between Central Hydraulic and Carl Young Company, we find that Carl Young does not fit the criteria of a successor corporation. Carl Young is not a manufacturing company; it is the liquidation company Central Hydraulic contacted to sell its assets after Central Hydraulic’s own negotiations with Milwaukee Cylinder failed. Carl Young purchased the assets of Central Hydraulic for resale, and held title to them only sufficiently long to locate a qualified buyer, which turned out to be Milwaukee Cylinder. Milwaukee Cylinder then purchased the assets of Central Hydraulic from Carl Young. Carl Young Company never “undertook] essentially the same manufacturing operation as the selling corporation,” which is a prerequisite to successor liability. Dawejko, supra. Therefore, even if we were to extend the application of the product-line exception to defendants, Trailmobile would be unable to proceed under that theory of law. Carl Young Company is not a product-line successor to Milwaukee Cylinder.

Conversely, after applying the Ramirez definition of successor corporation adopted in Dawejko, supra, we conclude that Milwaukee Cylinder is, in fact, a product line successor to Central Hydraulic. The record reveals that Milwaukee Cylinder did acquire substantially all of the manufacturing assets — the stock on hand, equipment, patents, licenses, and so forth — of Central Hydraulic. Milwaukee Cylinder manufactured and sold power gears, under the trade name “Power Gear,” in addition to selling the remaining inventory of “Power Gear” that was included in the purchase of Central Hydraulic. Moreover, Milwaukee Cylinder satisfies two of the three Ray prerequisites adopted by the Dawejko court. As an ongoing enterprise Milwaukee Cylinder is able to adopt Central Hydraulic’s risk-spreading rule, and Milwaukee Cylinder’s press releases advertising their assumption of the “Power Gear” product line indicates the fairness of imposing liability upon Milwaukee Cylinder. However, Milwaukee Cylinder’s purchase of Central Hydraulic did not virtually destroy the plaintiff’s remedies against the original manufacturer, Dawejko, supra. W.T. Young & Co. expressly assumed all the liabilities of its subsidiary, Central Hydraulic, in the estoppel certificate. See footnote three, supra.

Although contracts eliminating or severely restricting the liability of a purchasing corporation are disfavored in the law of Pennsylvania, Dilks v. Flohr Chevrolet, 411 Pa. 425, 192 A.2d 682 (1963), they are nevertheless valid if they: 1) are construed strictly, 2) spell out with great particularity the intention of the parties, 3) are construed against the party seeking immunity from liability, and 4) the burden of establishing immunity from liability is upon the party asserting it. Husak, supra. We have thoroughly reviewed the Estoppel Certificate and find that under the Dilks criteria the agreement is sufficiently particular to relieve Milwaukee Cylinder of liability for defective products manufactured by Central Hydraulic. Trailmobile’s remedy for indemnification was to join W.T. Young & Co. as an additional defendant. Trailmobile failed to do so on a timely basis. Trailmobile cannot now be heard to complain when its own failure to promptly obtain discovery from Milwaukee Cylinder created a delay in learning of the Estoppel Certificate. Under the circumstances we do not find it just to impose liability on the successor corporation. Dawejko, supra.

We affirm the order of the Court of Common Pleas of Delaware County.

Order affirmed.

      . “Power Gear” is the trade name originally used by the Central Hydraulic Company and now used by Milwaukee Cylinder to describe a line of hydraulically powered products used primarily to adjust a vehicle’s height. The power gear in question was manufactured by Central Hydraulic sometime prior to 1981.

      . Hill was suing in strict liability for the personal injuries he sustained. If Trailmobile had been permitted to join W.T. Young & Co., Trailmobile would have sued for indemnification under the estoppel agreement W.T. Young & Co. signed as a condition of the sale of Central Hydraulics to Milwaukee Cylinder. See footnote 6, infra.

      . The statute of limitations for personal injury actions is two years. See 42 Pa.C.S.A. § 5524. The statute of limitations began to run on February 29, 1984, the date Hill was injured. On June 12, 1987, fifteen months after the statute of limitations had expired, Trailmobile petitioned the trial court to join additional defendant W.T. Young & Co.
      Pennsylvania Rule of Civil Procedure 2255 provides:
      (a) The procedure, including pleadings, between the party joining an additional defendant and the additional defendant shall be the same as though the party joining the additional defendant were a plaintiff and the additional defendant were a defendant, (emphasis added).

        Thus Trailmobile, as the party seeking to join additional defendant W.T. Young & Co., was bound by the two year statute of limitations applicable to plaintiffs. See Goodrich Amram 2d § 2255(a):3.

      . The Stipulation and Agreement on Case Stated provides:
      13. In the event that it is determined that Trailmobile lacks standing to advocate and recover on the “product line" exception to the general rule on successor liability, then judgment is to be entered in favor of Milwaukee Cylinder and Robert Carl Company and against Trailmobile, requiring Trailmobile to reimburse Milwaukee Cylinder and Robert Carl Company for Seventy-Six Thousand Six Hundred Sixty-Six [Dollars] and Sixty-Six Cents ($76,666.66) without interest, (emphasis added)
      However, in its opinion the trial court stated:
      "The remaining defendants, Trailmobile, Robert Carl Company and Milwaukee Cylinder entered into a final settlement with Hill for his injuries with each paying $72,000.00. The terms of the settlement agreement provided that the three defendants reserved their rights to have the Court determine which of them was liable to Hill for the defective power gear manufactured and sold by Central Hydraulics Company.” (emphasis added)
      As the court's order utilized the $76,666.66 figure, we can only surmise that the $72,000.00 referred to in the opinion is a typographical error.

      . Paragraph ten of the Stipulation and Agreement on Case Stated provides:
      10. The parties further agree that Pennsylvania law is applicable to and dispositive of the successor liability issues to be determined by the trial and appellate courts in this case stated proceeding, and that, for the purposes of this case, that law includes the product-line exception adopted in Dawejko [v. Jorgensen Steel Co., 290 Pa.Super. 15, 434 A.2d 106].

      . Paragraph three of the “Estoppel Certifícate” provides:
      3. The undersigned will pay, discharge or otherwise satisfy, on a timely basis, all liabilities of Central Hydraulics, including, but not limited to warranty and product liability claims, and hereby hold Milwaukee Cylinder and Carl Co. harmless for any liability, cost or damage arising out of such liabilities or claims. The undersigned have no claims against Milwaukee Cylinder.


source: Caselaw Access Project

author: HOFFMAN, Judge: FORD ELLIOTT, Judge,

license: Public Domain

text:
    603 A.2d 608
    COMMONWEALTH of Pennsylvania v. William EVANS, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1991.
    Filed Feb. 19, 1992.
    Frank J. Madey, Asst. Public Defender, Allentown, for appellant.
    Jacquelyn C. Paradis, Asst. Dist. Atty., Allentown, for Com., appellee.

      Before CAVANAUGH, FORD ELLIOTT and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from judgment of sentence for rape, involuntary deviate sexual intercourse, incest, and terroristic threats. Appellant contends that the trial court erred in allowing expert testimony about Child Sexual Abuse Accommodation Syndrome. After reviewing the record, the parties’ briefs and arguments, we are compelled to vacate the judgment of sentence and remand the matter for a new trial.

In October, 1986, appellant was arrested and charged with various offenses allegedly involving sexual acts with his step-child and his own two children. On September 18, 1987, following a jury trial, he was convicted of rape (three counts), involuntary deviate sexual intercourse (three counts), incest (two counts), and terroristic threats (three counts). Appellant’s motion for a new trial was denied on January 25, 1991, and on March 21, 1991, appellant was sentenced to a period of incarceration of not-less-than-fifty-five-years-nor-more-than-one-hundred-ten-years in a state correctional facility. This timely appeal followed.

This case arose out of incidents that are alleged to have occurred in appellant’s home from June 1982 to August 1983. The Commonwealth presented the testimony of three children, ages thirteen, ten, and seven, indicating that they had been sexually abused by appellant during the period in question. On cross-examination, appellant’s counsel revealed several inconsistencies in the children’s testimony and the fact that there was a delay of nearly four years before the disclosure of the incidents of abuse.

Appellant presents two issues for our review. In his first issue, appellant contends that the trial court erred in allowing the expert testimony of Detective Carol Bennis of the Allentown Police Department, who testified as to a general definition of the stages of Child Sexual Abuse Accommodation Syndrome.

Detective Bennis of the Allentown Police Department’s Child Sexual Abuse division testified on behalf of the Commonwealth. Over appellant’s objection, the trial court qualified her as an expert in the area of child sexual abuse. Detective Bennis’s testimony in her capacity as an expert included a description of the five stages that constitute Child Sexual Abuse Accommodation Syndrome. These stages include (1) secrecy, (2) helplessness, (3) entrapment and accommodation, (4) delayed conflicting unconvincing testimony, and (5) retraction. N.T., September 17, 1987, at 61-68. Detective Bennis testified that these stages were defined by Dr. Roland Summit, an associate professor of psychiatry at UCLA Medical Center. In her description of the secrecy stage, the detective explained that disclosure of the abuse often does not occur until the child is an adolescent. Id,., at 74. Furthermore, she acknowledged that when a young child reports the abuse, it may be as a result of a change in that child’s lifestyle or circumstances. Id.

Detective Bennis also testified regarding the signs she had been trained to look for in a child who is a victim of sexual abuse. These signs include sexually acting out, unusual fears, nightmares, failing in school or sometimes doing excessively well, poor socialization, and suicidal behavior. Id. at 58-60. The detective then testified as to her observations of the children during the investigation of the case. According to the detective, during interviews of the three children, one child stuttered, another crawled under the table, and the third child seemed very depressed. Id. at 76-78. It is this testimony regarding the Child Sexual Abuse Accommodation Syndrome and Detective Bennis’s observations of the children that appellant contends the trial court improperly allowed. We agree.

“[A]dmission or exclusion of expert testimony is within the sound discretion of the trial court ... [and] will not be reversed absent a clear abuse of discretion.” Commonwealth v. McNeely, 368 Pa.Super. 517, 520, 534 A.2d 778, 779 (1987). Furthermore, it is well-established that an expert witness may not offer testimony which concerns the issue of a witness’ credibility because that testimony improperly encroaches upon the jury’s function. Kozack v. Struth, 515 Pa. 554, 562, 531 A.2d 420, 424 (1987); Commonwealth v. Seese, 512 Pa. 439, 443, 517 A.2d 920, 922 (1986); Commonwealth v. O’Searo, 466 Pa. 224, 229, 352 A.2d 30, 32 (1976).

The trial court relied on Commonwealth v. Baldwin, 348 Pa.Super. 368, 502 A.2d 253 (1985) to permit the testimony at issue. Baldwin held that behavioral and psychological characteristics of child sexual abuse victims are proper subjects for expert testimony. Specifically, this court in Baldwin approved the admission of testimony regarding the effects of an incestuous relationship on a victim’s self-esteem, the psychological forces which cause the victim to keep the incest a secret for a long time, and the reason that victims are often unable to recall exact dates or times or describe specific incidents in detail. Id., 348 Pa.Superior Ct. at 373-74, 502 A.2d at 255-56. The Baldwin court reasoned that the reaction and behavior of a victim are not matters of common knowledge and experience, and that expert testimony on such subjects did not encroach upon the jury’s function so long as the expert did not render an opinion on the accuracy of the victim’s testimony. Id., 348 Pa.Superior Ct. at 376-77, 502 A.2d at 257.

The Baldwin holding has been increasingly eroded by subsequent opinions of this court and our Supreme Court, both of which have disapproved of the use of expert testimony that presumes to pass directly on the veracity of witnesses. In Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986) and again in Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988), our Supreme Court held that it was error for the trial court to admit expert testimony that young children usually do not fabricate stories of sexual abuse, because such testimony encroached upon the province of the jury. Relying on the rationale of Seese, the Supreme Court later held that testimony about a related syndrome, rape trauma syndrome (RTS), was impermissible where the psychiatrist testified that the rape victim suffered from RTS and the evidence was offered to “downplay the victim’s repeated failures to identify appellant within weeks of the crimes and bolster her identification after four years.” Commonwealth v. Gallagher, 519 Pa. 291, 293, 547 A.2d 355, 356 (1988).

This court further extended the Seese, Davis, and Gallagher holdings in a number of cases. First, in Commonwealth v. Emge, 381 Pa.Super. 139, 553 A.2d 74 (1988), a three-member panel of this court held that “testimony which matches up the behavior of known victims of child sexual abuse with that of an alleged victim can serve no purpose other than to bolster the credibility of the alleged victim, and this purpose is patently prohibited.” Id., 381 Pa.Superior Ct. at 144, 533 A.2d at 76 (citing Commonwealth v. Rounds, 518 Pa. 204, 207 n. 4, 542 A.2d 997, 999 n. 4 (1988), Davis, supra, and Seese, supra). The Emge court found “no distinction between expert testimony as to what a sex abuse victim might say and testimony ... as to how an abuse victim might behave.” 381 Pa.Super. at 145, 553 A.2d at 76.

Subsequently, in Commonwealth v. Dunkle, 385 Pa.Super. 317, 561 A.2d 5 (1989), aff'd in part, rev’d in part, — Pa.-, 602 A.2d 830 (1992), this court held that the trial court improperly admitted expert testimony concerning the dynamics of interfamily sexual abuse and behavior patterns of the child-victim. Id., 385 Pa.Superior Ct. at 324-25, 561 A.2d at 8-9. In Dunkle, the court determined that the victim delayed reporting the incident and failed to recall certain details of the incident. The expert testimony offered to explain these deficiencies was found only to improperly bolster her credibility. Id.

Thereafter, a majority of this court, sitting en banc, held that “expert testimony regarding the behavior patterns of the victims of child sexual abuse is inadmissible when offered to explain the conduct of the witness/victim in a case, as it tends to bolster the victim’s testimony and so withdraw the issue of witness credibility from the jury.” Commonwealth v. Garcia, 403 Pa.Super. 280, 290, 588 A.2d 951, 956 (1991). In so holding, the court overruled our decisions in Commonwealth v. Pearsall, 368 Pa.Super. 327, 534 A.2d 106 (1987) (expert opinion regarding general behavior and psychological characteristics of child sexual abuse victims is permitted providing expert does not directly opine as to victim’s veracity), appeal denied, 524 Pa. 596, 568 A.2d 1246 (1989); Commonwealth v. Thek, 376 Pa.Super. 390, 546 A.2d 83 (1988) (only expert testimony regarding victim’s credibility should be prohibited); and Commonwealth v. Cepull, 390 Pa.Super. 167, 568 A.2d 247 (1990) (generally allowing testimony as to Rape Trauma Syndrome in dicta), appeal denied, 525 Pa. 624, 578 A.2d 411 (1990). Garcia, supra, 403 Pa.Super. at 289 n. 9, 588 A.2d at 955 n. 9. The majority rejected any distinction between the admission of expert testimony outlining a victim profile and diagnosing the victim as qualifying as a member of the profile. Id., 403 Pa.Superior Ct. at 288-89 n. 7, 588 A.2d at 955 n. 7.

Most recently, the Supreme Court in Commonwealth v. Dunkle, — Pa. -, 602 A.2d 830 (1992) [Dunkle //] addressed the issue presented here. Relying on numerous treatises on the subject of child sexual abuse, the court reasoned that the behavior patterns frequently associated with Child Sexual Abuse Accommodation Syndrome are not necessarily unique to sexually abused children, but are also “common to children whose parents divorce and to psychologically abused children.” Id., — Pa. at-, 602 A.2d 830. The court then determined that “the testimony about the uniformity of behaviors exhibited by sexually abused children is not ‘sufficiently established to have gained general acceptance in the particular field in which it belongs.’ ” Id., — Pa. at-, 602 A.2d 830 (citing Commonwealth v. Nazarovitch, 496 Pa. 97, 101, 436 A.2d 170, 172 (1981)). Thus, the court held that “[pjermitting an expert to testify about an unsupportable behavioral profile and then introducing testimony to show that the witness acted in conformance with such a profile is an erroneous method of obtaining a conviction.” Id., — Pa. at-, 602 A.2d 830. In addition, the court held that the trial court erred in permitting an expert to explain why sexually abused children may not recall certain details of the assault and why they may delay reporting the incident. Such explanations, the court determined, “are easily understood by lay people and do not require expert analysis.” Id., — Pa. at-, 602 A.2d 830.

Here, we find that the testimony of Detective Bennis was offered to bolster the victims’/witnesses’ credibility and is, therefore, impermissible under Dunkle II and Garcia. As in Garcia, the victims delayed in reporting the offense and were inconsistent as to other details. 403 Pa.Super. at 288, 588 A.2d at 954. Throughout the trial, defense counsel pointed out that the children did not immediately report the abuse. Although the Commonwealth asserts that the detective never expressed an opinion regarding whether or not she believed the children were telling the truth nor did she render an opinion that, because certain factors were present, the children must have been abused, we can find that such testimony was offered only to account for the above deficiencies. In addition, the detective indirectly compared the victims’ behavior with that of known victims of child sexual abuse. See Dunkle II, supra.

Thus, in accordance with the above-cited case law, we must find Detective Bennis’s testimony was proffered solely to enhance the witnesses’ credibility, an impermissible purpose. Consequently, we are constrained to follow Dunkle II, and must vacate judgment of sentence and remand for a new trial.

Judgment of sentence vacated. New trial granted. Jurisdiction relinquished.

FORD ELLIOTT, J., files a dissenting statement.

FORD ELLIOTT, Judge,

dissenting:

As the majority very properly decides, the use of expert testimony on the dynamics of the Sexual Abuse Accommodation Syndrome has been rendered wholly inadmissible in this Commonwealth by the recent decision of our supreme court in Commonwealth v. Dunkle, — Pa.-, 602 A.2d 830 (1992). Therefore, I agree that based on Dunkle an error occurred below. However, having carefully reviewed all of the evidence and testimony presented to the jury in this case, I would find any error to be harmless. The evidence of guilt against appellant including the testimony of the two older children and the other lay witnesses, was overwhelming. In determining that expert testimony on sexual abuse is inadmissible in Dunkle, Justice Cappy relied upon the common sense of all jurors to know that children may delay in reporting abuse and also omit details and contradict themselves and, therefore, such expert testimony is unnecessary. In reviewing the record herein, I would agree that such testimony was unnecessary and merely cumulative. Therefore, it seems to me to be wholly unnecessary, and perhaps the real injustice in this case, to subject these three children to a retrial and a reliving of the terror and violence which has already affected a significant part of their young lives. Can it be doubted since the trial of this case occurred almost five years ago, that the memories of both the children and the other witnesses as to details and dates has been eroded further by time.

      . 18 Pa.C.S.A. § 3121.

      . 18 Pa.C.S.A. § 3123.

      . 18 Pa.C.S.A. § 4302.

      . 18 Pa.C.S.A. § 2706.

      . Appellant was previously charged with and convicted of the commission of related crimes in another county. However, that conviction was overturned by this court for reasons identical to those stated herein. (No. 00158 PHL 91, filed January 7, 1992).

      . The eldest child disclosed the abuse in August of 1986. N.T., September 16, 1987, at 86. Similarly, the other two children did not report the abuse until foster parents with whom they were placed discovered unusual behavior which prompted them to suspect that the children had been abused.

      . The Commonwealth contends that this issue has been waived because it was not specifically raised in written post-trial motions and because it was based upon a theory different from that which was presented to the court below. We disagree.
      In appellant's motion for a new trial, he claimed that “the Court erred in allowing Detective Sgt. Carol Bennis testify as an expert on the Child Sexual Abuse Accommodation Syndrome.’’ Motion for New Trial, 9/25/87, at 2. At trial, appellant objected to the testimony of Detective Bennis on the grounds that she was not qualified as an expert and that her testimony was improper under Commonwealth v. Gallagher. N.T., 9/17/87, at 56-57. We find that these assertions sufficiently preserved for our review the issue of the propriety of the trial court's allowance of the detective’s testimony.

      . Because of our disposition of the first issue, we need not reach appellant’s remaining contention.


author: HESTER, Judge:

text:
    603 A.2d 612
    COMMONWEALTH of Pennsylvania v. Gary HALLOCK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 9, 1991.
    Filed Feb. 19, 1992.

      Marjorie D. Barlow, Asst. Public Defender, Scranton, for appellant.
    Andrew Jarbola, Asst. Dist. Atty., Scranton, for Com., appellee.
    Before BECK, POPOVICH and HESTER, JJ.
   HESTER, Judge:

Gary Hallock appeals from the judgment of sentence of thirty-six to seventy-two years imprisonment imposed following his plea of guilty to seven charges of involuntary deviate sexual intercourse. We conclude that the sentence is not cruel and unusual punishment under the eighth amendment to the United States Constitution and that the sentencing court did not abuse its discretion in imposing the sentence. We affirm.

The record indicates that appellant was charged with the following sexual offenses against children. In June, 1990, appellant performed oral sex on twelve-year-old Thomas P. Between July, 1990, and September, 1990, on four occasions, appellant performed either involuntary deviate sexual intercourse or oral sex on ten-year-old Brian H. On September 27, 1990, appellant indecently assaulted eleven-year-old Jason P. In the fall of 1986, appellant performed oral sex on fourteen-year-old Richard W. and fourteen-year-old William W. Between July, 1990, and September, 1990, appellant performed oral sex on Robert P., who was thirteen. Between July, 1990, and September, 1990, appellant performed oral sex on fifteen-year-old Steven P. In 1989 or 1990, appellant engaged in oral and anal intercourse with Tina H., his profoundly retarded fifteen-year-old daughter.

Appellant was a religious instructor at the Salvation Army in Scranton and assaulted the young children who attended his classes. The complaints indicate that in some cases, appellant would assault the children almost every time that they attended his class. When questioned by police about the charges, appellant not only admitted to molesting the children in question but also admitted that over the preceding nineteen years, he molested approximately thirty-five children between the ages of four and fourteen years of age.

On March 1,1991, appellant pled guilty to seven counts of involuntary deviate sexual intercourse, a first-degree felony, which carries a maximum penalty of twenty years imprisonment. In exchange, the Commonwealth agreed to nol pros the remaining charges. The guilty plea colloquy contains the following exchange between the trial court and appellant:

Q. Is there anything else that you think the District Attorney has agreed to in return for your pleading guilty to these eight counts?
A. Not that I know of.
THE COURT: Pardon?
MS. BARLOW: Your Honor, I believe the District Attorney is not going to request the mandatory minimum sentence. That is part of the plea agreement.
THE COURT: Is that right?
MS. CORBETT: Yes, your Honor.
THE COURT: Not request what?
MS. BARLOW: Not request the mandatory minimum sentence.
MS. CORBETT: The District Attorney has to specifically request the mandatory minimum for sexual offense cases, your Honor, and we are foregoing that. However, that’s the extent of the plea with regard to sentencing. We’ve not agreed to concurrent sentencing or anything other than that. We would stand—
THE COURT: Pardon me, what’s the mandatory minimum sentence?
MS. CORBETT: Five years on — if requested by the District Attorney there can be five years on each of the sex offense cases. The involuntary deviate sexual intercourse cases.
BY THE COURT:
Q. What does that mean to you, Mr. Hallock?
A. That means that the judge has the right to sentence me as he will without going by the minimum guidelines specified.
THE COURT: Mrs. Barlow, what does it mean to you?
MS. BARLOW: Basically, your Honor, it means that although the District Attorney is not going to request the mandatory minimum sentence of five years on the each of the seven counts of involuntary deviate sexual intercourse, however, we do know that the Judge has discretion as to whatever sentence he wishes to impose. BY THE COURT:
Q. Well, Mr. Hallock, you understand that I’m not a party to that agreement?
A. Yes; I do.
Q. I’m not bound by it. Do you understand that?
A. Yes.
Q. Do you understand that the charges that you’re pleading guilty to could result in your incarceration up to H5 years?
A. Yes, sir.

Notes of Testimony (“N.T.”), 3/1/91, at 14-16.

At sentencing, the court imposed thirty-six to seventy-two years imprisonment. The sentencing transcript indicates that the sentencing court had the benefit of a pre-sentence report. N.T., 6/19/91, at 4, 7. It also indicates that the sentencing court attempted to exercise compassion but determined that the needs of society and the heinous nature of the crimes warranted imposition of a severe sentence:

THE COURT: But these children, the emotional grief that you have caused these children and God knows how long they’re going to suffer from it and their families. Do you just ignore that? The adverse impacts on a program that you were involved in with the Salvation Army, one of the finest institutions in this country. I don’t know what adverse effect you’ve had on that program because of your conduct, because you were put in a position where you were going to be around children and then for you to tell the probation officer that you did it assuming that you had the consent of these children. Mr. Hallock, those children had to be terrified. You didn’t have any consent. You think these children are sick, too? But you never sought any help and there were all kind of clues that you had to have been aware of that you needed some help. Your wife, obviously, tried to help you. She stayed with you after two incidents, didn’t she?
THE DEFENDANT: Yes, sir.
THE COURT: I really have great difficulty showing any compassion. You showed absolutely no compassion for these little boys. One of them was your nephew. Your 15 year old daughter — it’s absolutely inconceivable to me that you would do something like that. I’m sorry, Mr. Hallock, I can’t show you any compassion. I have a much greater responsibility to the community. I do hope you get some help. I do hope that there is a program at Farview and if there is the State Bureau of Corrections will, I’m sure, see to it that you get whatever help is available. You have got to want to help yourself, though, and I don’t think you did. I don’t think you did when this was going on. I’m repulsed. Anything else you would like to say?

Id., at 14-16.

In this appeal, appellant argues both that his sentence was manifestly excessive and that it violates the eighth amendment to the Unites States Constitution. Appellant first alleges that the sentence imposed is manifestly excessive as it is unreasonable and outside the guidelines. This issue relates to the discretionary aspects of sentencing. As required by Pa.R.A.P. 2119(f) and the dictates of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), appellant has included in his brief a separate statement of reasons relied upon for this appeal.

We proceed to consider whether the statement demonstrates that a substantial question that the sentence imposed is inappropriate under the Sentencing Code exists. 42 Pa.C.S. § 9781(b). This determination must be made on a case-by-case basis. Commonwealth v. Semuta, 386 Pa.Super. 254, 562 A.2d 894 (1989). The requirement that an appellant delineate the reasons relied upon for allowance of appeal has the effect of limiting any challenges to the trial court’s evaluation of the factors impinging on the sentencing decision “to exceptional cases.” Commonwealth v. Tuladziecki, supra, 513 Pa. at 513, 522 A.2d at 20.

We have discussed the types of allegations that must be raised in order to establish that there is a substantial question that the sentence imposed is inappropriate under the Sentencing Code, thus allowing us to review that sentence. In Commonwealth v. Losch, 369 Pa.Super. 192, 201 n. 7, 535 A.2d 115, 119 n. 7 (1987), we stated:

[W]hat constitutes a “substantial question” under section 9781(b) must be evaluated on a case by case basis. However, we will be inclined to allow an appeal where an appellant advances a colorable argument that the trial judge’s actions were: 1) inconsistent with a specific provision of the Sentencing Code; or 2) contrary to the fundamental norms which underlie the sentencing process.

See also Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989)(en banc).

We have held that an allegation that a sentence is outside the guidelines and is unreasonable raises a substantial question under Tuladziecki Commonwealth v. McClendon, 403 Pa.Super. 467, 589 A.2d 706 (1991); 42 Pa.C.S. § 9781(c)(3). We therefore address the merits of appellant’s claim. He first contends that it was “inappropriate for the Trial Court to make an upward departure from the guidelines, without stating on the record, any aggravating circumstances which justified such an upward departure.” Appellant’s brief at 7-8. However, our review of the record indicates that the trial court did indicate why it was deviating from the guidelines. As quoted supra, the sentencing court made it plain that it was sentencing outside the guidelines based upon the grave consequences of appellant’s actions on his victims, the fact that appellant utilized his position as a religious instructor to gain access to his victims, and the continuing nature of appellant’s crimes.

Next, appellant submits that it was improper for the trial court to disregard the following factors during sentencing: 1) for the majority of appellant’s life, he did not commit crimes; 2) he had a stable employment history; 3) he lost his family as a result of these criminal prosecutions; 4) his problems will be cured by counseling and treatment; 5) appellant was remorseful; and 6) appellant assisted police by confessing to other offenses so that his other victims may receive counseling.

As to the first allegation, we believe that it is ludicrous for appellant to suggest that he did not commit crimes prior to the ones charged in the indictment. Appellant admitted to sexually abusing children for his entire adult life; he merely was not caught prior to this time. As to the alleged curability of his disease, the record does not establish that proper treatment will cure appellant. At most, the record establishes that appellant hopes that treatment would cure him.

As to the trial court’s alleged failure to consider appellant’s remorsefulness, cooperation with police, employment history, and loss of family, we note the following. The sentencing court had and considered the pre-sentence report prepared for appellant. N.T., 6/19/91, at 7. Where pre-sentence reports exist, we must

presume that the sentencing judge was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors. A pre-sentence report constitutes the record and speaks for itself. In order to dispel any lingering doubt as to our intention of engaging in an effort of legal purification, we state clearly that sentences are under no compulsion to employ checklists or any extended or systematic definitions of their punishment procedure. Having been fully informed by the pre-sentence report, the sentencing court’s discretion should not be disturbed. This is particularly true, we repeat, in those circumstances where it can be demonstrated that the judge had any degree of awareness of the sentencing considerations, and there we will presume also that the weighing process took place in a meaningful fashion. It would be foolish, indeed, to take the position that if a court is in possession of the facts, it will fail to apply them to the case at hand.

Commonwealth v. Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988). Since the sentencing court in this case did have a pre-sentence report, we must presume that it did consider the factors outlined by appellant and that the sentence imposed was not based solely on the gravity of the offense. Thus, the fact that the sentencing court did not state expressly that it considered each of these factors does not warrant reversal. See Commonwealth v. Gibson, 385 Pa.Super. 571, 561 A.2d 1240 (1989) (the rule of law announced in Devers overrules the prior precedent in the sentencing area which required the sentencing court to delineate on the record its consideration of each factor which must be applied in sentencing).

We acknowledge that appellant’s sentence is lengthy. However, in a recent decision, we upheld a sentencing court’s imposition of a fifty to one hundred year term of imprisonment on a pedophile. We noted the following:

It is beyond question that the sentencing function is a matter vested in the sound discretion of the trial court whose judgment will not be disturbed by an appellate court in the absence of an abuse of discretion. Commonwealth v. Green, 494 Pa. 406, 431 A.2d 918 (1981); Commonwealth v. Meo, 362 Pa.Super. 328, 524 A.2d 902 (1987) , allocatur denied 516 Pa. 632, 533 A.2d 91 (1988) ____ When reviewing sentencing matters, we must accord the sentencing court great weight as it is in the best position to view the defendant’s character, displays of remorse, defiance or indifference, and the overall effect and nature of the crime. Commonwealth v. Fries, 362 Pa.Super. 163, 523 A.2d 1134 (1987), allocatur denied 515 Pa. 619, 531 A.2d 427 (1987).

Commonwealth v. Jones, 1991 WL 271438 (No. 2647 Philadelphia 1990, filed December 23, 1991, slip opinion at 7). In Jones, we held that the sentencing court basically has “unfettered discretion in sentencing.” Id. Thus, we are not permitted to alter the sentence solely on grounds that appellant considers it excessive.

Appellant also contends that his sentence is unconstitutional. Relying solely upon Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), appellant argues that his term of imprisonment is so excessive as to constitute cruel and unusual punishment. We disagree. In So lem, the Supreme Court held that under certain circumstances, a jail sentence may violate the eighth amendment. There, the defendant was sentenced under a recidivist statute to life imprisonment, without parole, based upon his conviction of negotiating a check for one hundred dollars with insufficient funds to cover the check. His prior crimes were nonviolent burglaries. The Supreme Court held that the eighth amendment requires that a sentence be proportionate to the crime committed and that when determining whether a sentence is so disproportionate as to constitute cruel and unusual punishment, the following test is to be employed:

In sum, a court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.

Id., 463 U.S. at 292, 103 S.Ct. at 3011, 77 L.Ed.2d at 650.

In this case, the first factor, the gravity of the offense, weighs against appellant. Appellant sexually molested seven children, with grave consequences to them for the remainder of their lives. Further, by utilizing his position as a religious counselor to gain access to the victims, he repeatedly molested them. His crimes and the consequences both to the victims and society are grave, and they call for appropriate punishment.

As to the second factor, while appellant suggests that his sentence was more harsh than that imposed for more severe crimes, we disagree. Involuntary deviate sexual intercourse is a first degree felony. Rape and third degree murder also are classified as first degree felonies. Appellant’s criminal actions are more heinous than either rape or third degree murder. Rape involves an adult victim, and appellant’s victims were children. Third degree murder is an unintentional killing. Appellant’s acts were insidious and intentional. Thus, appellant’s sentence is not disproportionate to the sentences imposed for other, even less reprehensible criminal behavior. Finally, appellant does not attempt to establish that other jurisdictions treat involuntary deviate sexual intercourse on a child more leniently than does this Commonwealth. Thus, appellant’s constitutional challenge to his sentence fails.

In accordance with the foregoing, the judgment of sentence is affirmed.


author: WIEAND, Judge:

text:
    603 A.2d 618
    RESOLUTION TRUST CORPORATION, as Receiver For First Federal Savings & Loan Association of Pittsburgh v. URBAN REDEVELOPMENT AUTHORITY OF PITTSBURGH and Verex Assurance, Inc. Appeal of VEREX ASSURANCE, INC.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1991.
    Filed Feb. 14, 1992.

      Jeffrey T. Morris, Pittsburgh, for appellant.
    John Lucas, Pittsburgh, for Resolution Trust Corp., appellee.
    Scott D. Cessar, Pittsburgh, for Urban Redevelopment, appellee.
    Before WIEAND, CIRILLO and MONTGOMERY, JJ.
   WIEAND, Judge:

May the corporate insurer of a mortgage rescind its contract of guaranty after it has been determined that a material misrepresentation was made by the borrower and repeated by the lender in its application for insurance coverage? The trial court held that such a misrepresentation did not constitute a defense to the lender’s claim and entered partial summary judgment against the insurer of the debt. For the reasons which follow, we reverse.

In order to help alleviate economic blight and promote economic development in the City of Pittsburgh, the Urban Redevelopment Authority of Pittsburgh (U.R.A.) instituted a program to assist persons of low income in the financing, acquisition, construction and rehabilitation of residential housing located in certain targeted areas in the City of Pittsburgh. In 1982, First Federal Savings & Loan Association of Pittsburgh entered into an agreement with the U.R.A. by the terms of which First Federal became a participating lender in the U.R.A. program. Under this program, participating lenders, such as First Federal, were required to maintain both pool mortgage insurance and primary mortgage insurance for each loan. This insurance was intended to protect the mortgage holder, U.R.A., in the event of default by the borrower.

On May 11, 1983, Deborah D. Foster made application to First Federal for a loan under the U.R.A. program in the amount of $50,000 for the purchase and rehabilitation of a house in Pittsburgh. The loan application was completed by a representative of First Federal during an interview with Foster and was signed by Foster. In addition to questions concerning outstanding judgments and prior foreclosure actions, Foster was asked: “Is any part of the down payment borrowed?” Foster replied in the negative, and her answer was recorded on the application by representatives of First Federal who prepared it. The application, therefore, reflected that Foster would make a down payment of three thousand ($3,000) dollars and that no part thereof consisted of borrowed funds. This application was approved by U.R.A., and the same information appeared in First Federal’s application to Verex Assurance Company (Verex) for pool and primary mortgage insurance. Verex approved the application and issued certificates insuring the Foster loan in the amount of fifty thousand ($50,000) dollars. The loan and the mortgage securing the loan were thereafter assigned to the U.R.A.

When Foster promptly defaulted on the loan, a claim was made against Verex in the amount of $86,507.54. Gregg Henning, a Verex claims representative, contacted Deborah Foster by telephone and discussed with her the real estate transaction which had spawned the mortgage loan. He reported that Foster told him she had borrowed three thousand ($3,000) dollars from Equibank to make the down payment. Verex thereafter gave notice to U.R.A. that it intended to rescind its certificate of insurance because of the misrepresentation which Foster had made on the loan application. U.R.A. requested that First Federal repurchase the Foster loan. First Federal then filed an action for declaratory judgment against Verex to obtain an adjudication of its rights against the insurer. In response to a motion by First Federal, the trial court entered a partial summary judgment which precluded Verex from asserting Foster’s alleged fraud ás a defense to First Federal’s claim.

As a general rule, an appeal will lie only from a final order unless an interlocutory appeal is permitted by statute or rule. Fried v. Fried, 509 Pa. 89, 93, 501 A.2d 211, 213 (1985); Motkeral v. Burkhart, 400 Pa.Super. 408, 414, 583 A.2d 1180, 1183 (1990). The Supreme Court has defined a final order as one which ends the litigation or disposes of the entire case. Conversely, an order is interlocutory and not final unless it effectively puts a litigant “out of court.” T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 337, 372 A.2d 721, 724 (1977). This standard of finality, however, has been subjected to exceptions.

In Postemack v. American Casualty Company of Reading, 421 Pa. 21, 218 A.2d 350 (1966), an action was brought to recover a fire loss from the defendant-insurer. During the pendency of the action, the defendant-insurer filed a petition requesting leave to amend its answer to include as new matter the defenses of res judicata and collateral estoppel because of an action by plaintiff to recover the same loss from a different insurer. In denying a motion to quash an appeal from this order, the Supreme Court said: “The order involved effectively precludes proof at trial of what might possibly be a complete defense to the cause sued upon. As to this defense, at least, the order appealed from puts the defendant ‘out of court’. It is, therefore, an appealable order.” Id., 421 Pa. at 24, 218 A.2d at 351.

Posternack was followed by Grota v. LaBoccetta, 425 Pa. 620, 230 A.2d 206 (1967). There, the Supreme Court found final a trial court order which had denied defendants leave to amend their pleading to include the affirmative defense of release. The Grota court said:

[T]he plaintiff submits that the appeal is out of order and should be quashed on the basis that the order to which objection was made was merely interlocutory. We cannot accept this argument. The defense sought to be injected by the amendment was an affirmative one and thus had to be pleaded, on the risk otherwise that it might be deemed to have been waived. Therefore, when the Court held that the amendment was not pleadable, the petitioners were, on that feature of the case, put out of court. From this it inevitably followed that the order below became final and appealable.

Id., 425 Pa. at 623, 230 A.2d at 207 (emphasis added). See also: Higgs v. New York Fire Ins. Co., 176 Pa.Super. 310, 106 A.2d 860 (1954).

The Supreme Court had an opportunity to overrule Posternack and Grota in Bruno v. Elitzky, 515 Pa. 47, 526 A.2d 781 (1987), but elected not to do so. Instead, the Court sought to distinguish Posternack and Grota. In Bruno, the order being appealed was a sanction order which had stricken new matter contained in defendant’s new matter. The Supreme Court held the order interlocutory and not immediately appealable. Writing in dissent, Justice Hutchinson observed that, as in Posternack and Grota, the trial court’s order had deprived the defendant finally of the opportunity to assert an affirmative defense. With respect to this dissent, the majority observed via footnote as follows:

Mr. Justice Hutchinson has entered a dissent groping with the viability of Grota v. LaBoccetta, 425 Pa. 620, 230 A.2d 206 (1967), which dealt with the substantive merits of an affirmative defense. By contrast, disposition of the case under review is based on the issue of a sanction order for failure to respond to interrogatories.
This qualitative difference clearly distinguishes the two cases.

Id. 515 Pa. at 50 n. 1, 526 A.2d at 782 n. 1 (emphasis added).

The incongruity of these decisions was noted and commented upon by the Commonwealth Court in Commonwealth, Department of Transportation v. Kmetz, 129 Pa. Cmwlth.Ct. 97, 564 A.2d 1040 (1989) where the Court observed:

In other words, there is no longer a requirement that an order put a defendant out of court before that order is final and appealable. Rather, after Postemack and Grota, appellate review is proper if one of the defendant’s defenses is put out of court. But the determination of finality does not end there. Bruno requires that the determination also include inquiry into how the defense was put out of court. Accordingly, even though two orders may have identical impact upon a defendant’s ability to prove an affirmative defense at time of trial, an order striking untimely new matter is final but an order striking new matter as a discovery sanction is interlocutory. This standard is incongruous.

Id., 129 Pa.Cmwlth.Ct. at 103, 564 A.2d at 1043 (emphasis in original).

Although we are reluctant to entertain appeals from orders which do not decide actions fully and finally, Posternack and Grota, having never been overruled, constitute the law as it presently exists in this Commonwealth. Pursuant to these rulings, the order entered by the trial court in the instant case is appealable, for the effect of the order is to determine finally that fraudulent misrepresentations made by the borrower may not be asserted as a defense in this action to impose liability on the insurer pursuant to its contract.

A motion for summary judgment may be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that no genuine issue as to any material fact exists and that the moving party is entitled to judgment as a matter of law. Davis v. Pennzoil Co., 438 Pa. 194, 264 A.2d 597 (1970).

It is the general rule in Pennsylvania that, in order to rescind an insurance policy based on a fraudulent representation, “the insurer has the burden of proving that the statements made by an applicant on the application were false and material and that the applicant must have known that the statements were false and made them in bad faith.” Piccinini v. Teachers Protective Mut. Life Ins. Co., 316 Pa.Super. 519, 528, 463 A.2d 1017, 1023 (1983). See also: Lynch v. Metropolitan Life Insurance Company, 427 Pa. 418, 235 A.2d 406 (1967); Travellers Ins. Co. v. Heppenstall Co., 360 Pa. 433, 61 A.2d 809 (1948); Bailey v. Pacific Mutual Life Insurance of California, 336 Pa. 62, 6 A.2d 770 (1939); Evans v. Pennsylvania Mutual Life Insurance Co. of Philadelphia, 322 Pa. 547, 186 A. 133 (1936); A.G. Allebach, Inc. v. Hurley, 373 Pa.Super. 41, 540 A.2d 289 (1988); McCloskey v. New York Life Insurance Company, 292 Pa.Super. 1, 436 A.2d 690 (1981); Underwood v. Prudential Insurance Company of America, 241 Pa.Super. 27, 359 A.2d 422 (1976).

Whether Foster fraudulently misrepresented the source of the money used to make her down payment is a question of fact to be determined by the fact finder upon a trial of the cause. At the present stage of the proceedings, the issue cannot be determined conclusively. The trial court concluded, however, that even if Foster’s misrepresentation had been fraudulent, Verex could not for that reason rescind its contract of insurance. The court’s ruling was based upon its determination that First Federal was innocent of any fraud and could not be charged therewith. For the reasons which follow, we conclude that the trial court erred.

Although this precise issue has not been decided previously by the appellate courts of this Commonwealth, those courts which have considered it have uniformly held that a policy guaranteeing a mortgage loan can be rescinded on the basis of a misrepresentation made by the mortgagor as to his or her financial circumstances, even though the mortgagee-lending institution did not have actual knowledge of the misrepresentation, where the misrepresentation was material and was submitted by the lending institution with its application for insurance. See: Firstier Mortgage Company v. Investors Mortgage Insurance Co., 930 F.2d 1508 (10th Cir.1991); Verex Assurance, Inc. v. John Hanson Savings and Loan, Inc., 816 F.2d 1296 (9th Cir.1987); Twin City Bank v. Verex Assurance, Inc., 733 F.Supp. 67 (E.D.Ark.1990); TCF Mortgage Corporation v. Verex Assurance, Inc., 709 F.Supp. 164 (D.Minn.1989); In re Epic Mortgage Insurance Litigation, 701 F.Supp. 1192 (E.D.Va. 1988); Mountain Security Savings Bank v. United Guaranty Residential Ins. Co., 678 F.Supp. 610 (W.D.Va.1987); United Guarantee Residential Insurance Corp. of North Carolina v. American Pioneer Savings Bank, 655 F.Supp. 165 (S.D.Fla.1987). In such cases, the insurance carrier has no duty to investigate the accuracy of the facts as set forth in the application, and the good faith or lack of knowledge of the misrepresentations by the mortgagee-lending institution is irrelevant. Twin City Bank v. Verex Assurance, Inc., supra. This is as it should be, for the mortgagee-lending institution is in a better position to ascertain the truth of the borrower’s representations than the mortgage insurance carrier which has no direct dealings with the borrower.

In some of the cases considered by the courts, the policy of mortgage insurance contained a provision that the insurer relied totally on the information supplied by the insured mortgagee and that facts submitted to it were to be deemed representations by the insured mortgagee. See, e.g.: United Guarantee Residential Insurance Corp. of North Carolina v. American Pioneer Savings Bank, supra; In re Epic Mortgage Insurance Litigation, supra; Mountain Security Savings Bank v. United Guaranty Residential Insurance Co., supra. A similar policy provision has not been pleaded in the instant case. Instead, Verex has pleaded and produced evidence that because of the nature of the tripartite relationship existing among borrower, lender and insurer, it is the custom in the trade for the parties to understand that the insurer relies upon representations made by the lender even though the basis therefor may have originated in statements made orally or in writing by the borrower. It is understood throughout the industry, appellant argues, that if the information received by the mortgage insurer is not accurate and complete, there is no coverage. This enables the mortgage insurance to be purchased for a lower premium than if a charge had to be made to verify information submitted by the lender to the insurer. In re Epic Mortgage Insurance Litigation, supra at 1238.

Whether Verex’s assertion of a custom in the trade is factually correct is not presently before us. Suffice it to say that it cannot be decided as a matter of law. We conclude, therefore, that Yerex must be given an opportunity to present its defense upon a trial of the cause. A jury could find that a misrepresentation regarding the borrower’s credit and cash equity was material to the insurer’s determination of the probability of repayment. See: Verex Assurance, Inc. v. John Hanson Savings and Loan, Inc., supra. If this information were false, therefore, appellant may well be entitled to rescind its policy providing mortgage guaranty insurance. Under such circumstances, appellant’s right of rescission would not be defeated merely because the insured lender was unaware that the information which it had supplied to the insurer was false.

Reversed and remanded for additional proceedings consistent with this opinion. Jurisdiction is not retained.

      . First Federal has since been acquired by the Resolution Trust Corporation which has been substituted as the named plaintiff in this case.

      . During deposition testimony, Foster later said she had borrowed only five hundred ($500) dollars of the down payment.


author: ROWLEY, President Judge:

text:
    603 A.2d 622
    In re ADOPTION OF C.M.W. Appeal of B.L.K. (Two Cases).
    Superior Court of Pennsylvania.
    Argued Aug. 15, 1991.
    Filed Feb. 24, 1992.
    Samuel C. Totaro, Jr., Trevose, for appellant.

      Richard A. James, Media, for Ward, participating party.
    Stephanie H. Klein, Wallingford, for guardian ad litem, participating party.
    Before ROWLEY, President Judge, and BECK and HESTER, JJ.
   ROWLEY, President Judge:

B.L.K. appeals from the Final Decree terminating his parental rights and terminating his visitation rights with respect to his minor child, C.M.W. After reviewing the record, we vacate the Final Decree.

On November 7, 1988, V.W., C.M.W.’s natural mother, filed a petition for adoption of C.M.W. by V.W.’s husband and for involuntary termination of appellant’s parental rights. On October 31, 1989, the Orphans’ Court entered a Decree terminating appellant’s parental rights. Appellant filed a petition for reconsideration of the Decree and a stay of the proceedings, which was denied by the Orphans’ Court.

Appellant filed an appeal from the Decree of October 31, 1989. However, that appeal was discontinued so that the Orphans’ Court could consider appellant’s exceptions to the Decree. On December 24, 1990, after considering appellant’s exceptions, the Orphans’ Court entered an order denying the exceptions. On January 14, 1991, appellant filed an appeal from this order at No. 239 Philadelphia 1991. On January 23,1991, the Orphans’ Court entered an amended order denying appellant’s exceptions and additionally terminating visitation rights which had previously been granted to appellant. Appellant filed a timely appeal from this order at No. 392 Philadelphia 1991.

This Court initially quashed the appeals because final decrees had not been entered. However, on December 16, 1991, we granted appellant’s petition for reconsideration and vacated the judgment quashing the appeals. We now reach the merits of appellant’s arguments.

The record and the parties’ briefs reveal the following set of occurrences: C.M.W. was born on March 4, 1986. Although appellant and V.W. were not married, they had lived together for approximately a year before their daughter's birth. Appellant’s daughter from his previous marriage also lived with them. Appellant has total custody of this daughter.

In June, 1986, V.W. moved from the apartment she had shared with appellant to her cousin’s home. After this separation, appellant regularly visited C.M.W.

In November, 1986, V.W. obtained a support order which required appellant to pay $25 a week in child support. In 1987, V.W. became disturbed by appellant’s requests to spend more time with his daughter. In an attempt to control his visitation, she filed a complaint to confirm custody. On March 5, 1987, a hearing on this complaint was held. The hearing officer recommended that the parties undergo counseling. Both parties began attending counseling sessions. However, in May, 1987, V.W. walked out of a session and refused to return because she felt that the counselor was trying to coerce her into agreeing to overnight visitation, to which she was opposed.

On June 14,1987, appellant was to visit with his daughter at his apartment, but this visitation did not occur. V.W. contends that she brought her daughter to appellant’s apartment and knocked continuously for five minutes, but that appellant did not answer the door. Appellant, on the other hand, asserts that he was home all day and that V.W. did not come.

In September, 1987, V.W. married her present husband and moved to Delaware County. Although she notified the domestic relations office through which she received child support of her change in address, she did not notify the post office. Moreover, she did not tell appellant that she was moving to another address, under a different name, and taking their daughter with her.

In November, 1987, appellant called the home of V.W.’s cousin and learned that V.W. had married and moved. Appellant first spoke with V.W.’s cousin’s son who told him that V.W. had moved to the West Chester area, but that he did not know the specific address or phone number. Appellant later spoke with V.W.’s cousin who refused to provide him with V.W.’s new name or address.

Appellant testified that he attempted to locate V.W.’s new name or address through various sources. He stated that he went to the domestic relations office, but that they would not provide him with the information he sought. He also stated that he drove past V.W.’s cousin’s home a few times to see if V.W.’s car was there. Appellant’s father, a constable, also attempted to trace V.W.’s address through license plates. Appellant also testified that he contacted mutual friends in an attempt to locate V.W. Finally, on advice of counsel, appellant stopped paying child support so that V.W. would file a contempt petition pursuant to which he would discover her address. However, appellant’s tax refund check was intercepted, and V.W. had no need to file a contempt petition. Appellant then contacted the IRS in an attempt to locate V.W., but the IRS would not provide him with the information.

In February, 1988, V.W. and her husband filed a petition for adoption in the Buck’s County Orphans’ Court seeking to terminate appellant’s parental rights. A hearing was scheduled for July 5, 1988. However, V.W. withdrew the petition before the hearing.

On July 27,1988, appellant filed a petition for visitation in Delaware County. A hearing on the petition was scheduled for November 9, 1988. On November 7, 1988, V.W. filed the present petition for adoption and involuntary termination of parental rights in Delaware County. At the hearing on the visitation petition, the trial court granted appellant weekly visitation.

From November, 1988 through January, 1989, appellant visited with his daughter one day a week. Because appellant lived an hour’s drive from his daughter, he would travel two hours in the morning to pick her up and take her back to his home, and another two hours in the evening to take his daughter to her home and return to his home.

In January, 1989, appellant was involved in two accidents. In one, he fell off a curb and tore ligaments in his leg. Then, he was involved in an automobile accident while driving to visit his daughter. His foot was placed in a cast and he was given codeine for the pain. While he was taking the medication, he was not allowed to drive.

According to the log which V.W. began keeping after the court granted visitation rights to appellant, appellant did not visit his daughter again until February 11,1989. Appellant visited with his daughter weekly until April 1, 1989. He missed his April 1 and April 8 visits, but did visit on April 15.

In June, 1989, appellant filed a contempt petition against V.W. alleging that he was not able to see his daughter in accordance with the visitation schedule. He also filed a petition for modification of the visitation order, requesting expanded visitation. He testified that he filed this petition after his father drove him to his daughter’s home for his visit because he was on medication due to a problem he had with his arm, and no one answered the door. V.W., on the other hand, testified and noted in her log that she was home all day and appellant did not show up. Appellant did not see his daughter again until September 23, 1989, but he did send her a gift in August. He also testified that he called repeatedly between May and September, but that V.W. would not allow him to speak to his daughter. V.W. testified that he did not call during this time period.

On September 22, 1989, a hearing was scheduled on the contempt petition. However, before the hearing began, V.W. agreed to the entry of an order allowing appellant expanded visitation. Therefore, appellant withdrew the petition. Appellant visited with his daughter for the first time since April, 1989 on September 23, 1989. Three weeks later, the hearing on the present petition to terminate appellant’s rights was conducted.

In reviewing a termination of parental rights case, we apply the following principles:

Parental rights may not be terminated in the absence of evidence which is clear and convincing. In Pennsylvania, courts applying this standard have required that the evidence be ‘so clear, direct, weighty, and convincing as to enable the [factfinder] to come to a clear conviction without hesitancy, of the truth of the precise facts in issue.’
Our scope of review in termination of parental rights cases is limited to a determination of whether the decision is supported by competent evidence. If our comprehensive review of the record does not reveal an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court’s findings, the order must stand.

In re J.G.J., Jr., 367 Pa.Super. 425, 428-29, 532 A.2d 1218, 1220 (1987) (citations omitted).

In determining that V.W. had met her burden of proving by clear and convincing evidence that appellant’s parental rights should be terminated, the trial court concluded that during a period from June, 1987 to July, 1988, appellant did not see his daughter. See Trial Court Opinion, 3/21/91, at 3. The court further concluded that appellant’s excuses with respect to the non-performance of his parental rights during this period were unacceptable. Id. at 5. Finally, the trial court determined that appellant’s post-abandonment conduct was not sufficient to show that he desired to re-establish a relationship with C.M.W. Id. at 6. After reviewing the record, we conclude that the trial court abused its discretion in finding that V.W. proved by clear and convincing evidence that appellant evidenced a settled purpose of relinquishing his parental rights.

It is undisputed that V.W. relocated her daughter without informing appellant of their new address or her new name. Under the circumstances of the present case, it would be patently unfair to overlook V.W.’s conduct in this matter and to penalize appellant for failing to see his daughter when V.W. took her to another county without informing appellant of her whereabouts. This is especially true considering the opposition which V.W. had previously shown to appellant’s attempts to expand his visitation with C.M.W.

Appellant testified to various steps he took in order to locate C.M.W. after V.W. relocated. Although V.W. expressed skepticism that appellant actually took these measures, she offered no evidence that he did not. Furthermore, the trial court did not find that appellant did not take these measures. The trial court determined that the measures were not sufficient because appellant could have filed a petition for visitation “and somehow effected] service by use of the offices of the Domestic Relations Department.” Trial Court Opinion at 3. Assuming that appellant could have served a petition upon V.W. without knowing her address, a proposition which appellant disputes, see Appellant’s Brief at 26, the fact that he could have taken some additional measure, in addition to the steps that he already took, does not reveal an intent to relinquish his parental rights. “Where a parent makes reasonable attempts to overcome obstacles created by the party seeking to terminate parental right, ‘a mere showing that the [parent] could conceivably have pursued legal action more promptly cannot justify termination of parental rights.’ ” In re J.G.J., Jr., supra, 367 Pa.Superior Ct. at 434, 532 A.2d at 1223 (emphasis added) (quoting In re D.J.Y., 487 Pa. 125, 132, 408 A.2d 1387, 1390 (1979)). The record reveals that appellant did in fact make reasonable attempts to locate his daughter. Accordingly, we conclude that the trial court erred in determining that appellant’s attempts to locate his daughter after V.W. relocated with her were not sufficient.

Appellant first became aware of his daughter’s whereabouts in February, 1988, when V.W. filed a petition to terminate his parental rights. Appellant did not see his daughter until November. However, he did attend a hearing in May and he did file a petition for visitation in July, after V.W. withdrew her petition. Although appellant did not see his daughter during this period, it is clear that he was not relinquishing his rights. Rather, he contested V.W.’s petition to terminate his rights, and he filed his own petition seeking visitation. Furthermore, once his petition was granted, appellant began visiting with his daughter weekly. Although these visits became irregular in January, 1989, appellant did visit with his daughter until April, 1989. Between April and September, appellant did not see his daughter. However, he did file a contempt petition in June, 1989, alleging that V.W. disregarded the visitation schedule. V.W. denied this allegation, but the trial court made no factual findings as to the credibility of the witnesses.

Appellant also contends that medical difficulties kept him from making the two hour trip to his daughter’s home. Again, the trial court did not determine that appellant was untruthful; it merely found his excuses unacceptable. However, “[a] parent’s performance must be measured in light of ‘what would be expected of an individual in circumstances in which the parent under examination finds himself.’ ” In re Adoption of B.D.S., 494 Pa. 171, 179, 431 A.2d 203, 207 (1981) (quoting In re Adoption of David C., 479 Pa. 1, 14, 387 A.2d 804, 810 (1978)). Although we do not condone appellant’s failure on some occasions to inform V.W. that he would not be visiting with his daughter, we also do not believe that appellant could reasonably have been expected to make the two-hour trip to his daughter’s home while he was taking medication which could affect his driving. Therefore, we believe that the trial court erred by finding appellant’s explanations unacceptable.

In addition, the record shows that appellant has not been completely diligent about paying his child support. However, while a factor to be considered, a failure to pay child support is not, in and of itself, sufficient to find an intent to abandon. In re Adoption of McAhren, 460 Pa. 63, 331 A.2d 419 (1975). In discussing the amount of support appellant paid, the trial court stated that “the total he paid in support, other than an IRS intercept, appears to be $109 in 1987, and $330 in 1988.” Trial Court Opinion at 4. Apparently, while recognizing the fact that appellant’s IRS check had been intercepted, the trial court chose to disregard it in computing the amount of support which appellant paid. Although an intercept is not a voluntary payment, it nonetheless constitutes support and should not have been disregarded. Because appellant was required to pay support in the amount of $25 a week, $848, the amount of the intercepted check, constituted a large portion of his obligation. The trial court erred in discounting it.

Furthermore, the trial court incorrectly stated that appellant did not pay any support in 1989. The record clearly indicates, through the testimony of V.W. herself, that as of the hearing date, appellant had paid $565 in support. While this was not the total amount owed, it must be, and should have been, considered in the determination of whether appellant’s rights should be terminated.

Finally, the record shows that during the period at issue, appellant had been injured and was on disability. Furthermore, he has total custody of another daughter whom he must support. While these factors do not excuse appellant from supporting C.M.W. as ordered, they should have been considered before his parental rights were completely terminated.

It is clear from the record that appellant has not been a model parent. However, the record also shows that he has not shown an intent to relinquish his parental rights nor has he failed to perform his parental duties to such an extent that termination is warranted. As counsel for C.M.W. stated in her brief,

[Appellant] is not a perfect parent. But this Court cannot sanction termination of the rights of imperfect parents. It can only intervene where the parent has shown a clear intent to relinquish his rights---- [A]bsent compelling reasons, this Court cannot permit such an intrusion into [C.’s] rights. [C.] has [the] right to know her father with all his flaws.

Brief of C.M.W. at 19-20. Furthermore, V.W., proponent of the termination of appellant’s rights, has not been completely faultless with respect to the difficulties present in this case. For the above reasons, we reverse the orders terminating appellant’s parental and visitation rights.

Orders reversed.

      . The actual decree signed by the Orphans’ Court is merely titled "Decree." It is not specified as a decree nisi or final decree. In the docket entries, the decree is titled “Final Decree." Apparently, the court and the parties agreed to treat the decree as a decree nisi so that the court could consider appellant’s exceptions.

      . See 23 Pa.C.S. § 2511(a)(1).

      . We note that the trial court chose to disregard the recommendations of counsel appointed for C.M.W. and the court-appointed psychologist, both of whom recommended that appellant’s rights not be terminated.