author: TAMILIA, Judge:

text:
    528 A.2d 222
    Katherine FALLARO, Appellant, v. Marie YEAGER Bucks County Children and Youth Social Services Agency.
    Superior Court of Pennsylvania.
    Argued March 25, 1987.
    Filed July 1, 1987.

      William A. Meehan, Jr., Haverford, for appellant.
    Paul W. Rauer, Philadelphia, for appellee.
    Andrew F. Schneider, Schneider and Goldblum, Lang-horne, for amicus curiae Bucks County Children and Youth Social Services Agency.
    Before CAVANAUGH, BROSKY and TAMILIA, JJ.
   TAMILIA, Judge:

This appeal is from an Order directing the Bucks County Children and Youth Agency to take custody of Robert and Michael Rennie, for dispositional purposes, so that a foster home can be found for the children in Bristol, Pennsylvania.

A summary of the facts as found by the lower court indicates that Marie Yeager is the natural mother of the boys, aged seven and five. Katherine Fallaro is the aunt by marriage of Ms. Yaeger.

The boys have lived in the Fallaro home for most of their lives. Initially, Ms. Yeager also lived at the home, but in February of 1984 she moved, along with her sons, to live with Mark Ercolani, who is now her husband. Sometime in June, 1984, the boys were again living with the Fallaro’s, the circumstances of their return being in dispute.

On June 29, 1984, Mrs. Fallaro filed a petition for confirmation of custody and on July 5, 1985, Ms. Yeager filed a petition for custody. The petitions were consolidated and temporary custody was granted to Mrs. Fallaro pending a full hearing. Following two hearings, Mrs. Fallaro was granted temporary custody and Ms. Yeager given visitation rights. An investigation of Yeager’s home was also ordered.

Mrs. Fallaro, on May 21, 1985, filed an emergency petition alleging Mr. Ercolani had sexually abused the children and requesting the visitation rights be vacated. The visitation rights were subsequently suspended pending a hearing, but Yeager was permitted to visit the children at the Fallaro home in the presence of Mrs. Fallaro.

On June 6, 1985, Ms. Yeager filed a petition for contempt and an emergency petition for reconsideration of the temporary Order. A hearing was scheduled, but the parties failed to appear. The matter was subsequently assigned to the judge whose Order is presently at issue and, after numerous continuances, a hearing was held May 15, 1986. An Order was then entered granting Fallaro and Yeager shared legal custody and providing that the boys would continue living with Fallaro, the mother to have unlimited visitation. The court notes in its Opinion that this Order was entered with a view toward reuniting the boys with their mother.

Ms. Yeager filed a petition for contempt on June 11, 1986 alleging Mrs. Fallaro interfered with her visitation rights. Following a hearing on July 10, 1986, the court found Mrs. Fallaro to be in contempt of the May 15, 1986 Order. An Order was entered specifying Ms. Yeager’s rights of visitation and requiring that a third adult be present if they were in the company of Mr. Ercolani. This Order was to be reviewed in sixty days.

A review hearing was conducted on September 10, 1986 following which the court made findings of fact and issued an Order. In the findings of fact, the court stated:

5. Mrs. Fallaro is an inappropriate caretaker for the children because she has demonstrated a longstanding and fixed hositility towards the mother and a preference for the father. This atmosphere is detrimental to the welfare of the children.
6. At this time Mrs. Ercolani [Yeager] is an inappropriate caretaker. Further investigation may prove that she can be an appropriate caretaker.
8. The children are dependent. They are now living on welfare. Their natural father has never supported them, although he is financially able to do so.
9. It is in the best interests of the children that they be placed with a caretaker who is not involved in the disputes between mother and father.
10. Because the mother, who seeks custody of the children and who has been denied visitation by Mrs. Fallaro on her own initiative and in contempt of the orders of this Court, is a resident of Bristol, Pennsylvania, it is in the best interests of the children that they reside in Bristol, Pennsylvania where the mother can have frequent visitation____

Findings of Fact, Forer, J., 9/10/86.

The accompanying Order, which is the subject of the present appeal, provided:

ORDER

The Bucks County Children and Youth Agency is directed to take custody of the children for dispositional purposes in order that an appropriate foster home can be found for the children in Bristol, Pennsylvania. The Bucks County Children and Youth Agency is directed to arrange for placement of the children and to schedule a hearing as soon as possible.
The Philadelphia Sheriffs Office is Ordered to transport the children to Bucks County to be present at the hearing. Counsel, Mr. Meehan and Mr. Rauer, will be notified and see to it that the children are made available.

Order, Forer, J., 9/10/86.

An appeal to the above Order was taken by Mrs. Fallaro and an Amicus Curiae brief filed by the Bucks County Children and Youth Social Services Agency.

The amicus curiae brief raises the issue of whether it was proper for the court to make a finding of dependency in a case brought before it on the issue of custody. We think the court’s action in making such a determination was improper and the Order must be vacated. This conclusion is based on a reading of the statutes involved and a concern for the violation of rights which would occur if such a practice is permitted.

The present matter was before the lower court on cross-petitions for custody. There was no petition for dependency filed, and yet the court, sua sponte, made such a determination. This Court, in In Interest of M.B., 356 Pa.Super. 257, 514 A.2d 599 (1986), disapproved of a lower court making a dependency determination when a petition was filed under the Child Protection Services Law, 11 P.S. § 2201 et seq. In that case, the Court found the allegation of abuse to be unfounded but determined that the child was a dependent under the Juvenile Act, 42 Pa.C.S.A. §§ 6301-6365. As the Court stated in M.B.:

Courts cannot rule on matters not before them. It is, of course, the pleadings which limit the court’s agenda. ‘The pleadings determine the issues in any given case.’ Anflick v. Gruhler, 353 Pa. 470, 472, 46 A.2d 161, 162 (1946). ‘[A] plaintiff cannot file a complaint which avers one cause of action, and be permitted, on the trial, to prove a different cause of action.’ Smith v. County of Allegheny, 397 Pa. 404, 406, 155 A.2d 615, 616 (1959).
The rationale for this rule goes well beyond Nineteenth Century hypertechnical pleading requirements.
The general rule requiring conformity between the allegata and probata is intended to avoid the injuries that would result by confronting a defendant at trial with proof of a cause of action of which he was not put on notice and which he is not prepared to defend.
Computer Print Systems, Inc. v. Lewis, 281 Pa.Super. 240, 248, 422 A.2d 148, 152 (1980).
Due process requires that the litigants receive notice of the issues before the court and an opportunity to present their case in relation to those issues. It is even more eggregious an error when the lack of notice, through variance from the pleadings, is the court’s doing. For when the issue is first stated only in the court’s resolution of it, the unsuspecting party has no opportunity during the proceedings to voice his objections or match his case to the altered issue.

In Interest of M.B., supra, 356 Pa.Superior Ct. at 259-260, 514 A.2d at 600-601.

The Court went on to review the various sections of the statute, specifically discussing 42 Pa.C.S.A. § 6321:

We note Section 6321 is also the first section of Sub-chapter B of the Juvenile Act which is entitled “JURISDICTION AND CUSTODY.” We think it clear from this fact and from our reading of § 6321 that if a proceeding is not commenced by any of the means provided by § 6321, then a court has no jurisdiction to find a child to be dependent.
Thus, aside from the other means provided by § 6321, in order for a court to have jurisdiction to find a child to be dependent, there must be a petition filed under the Juvenile Act which alleges the dependency of the child. Since no such petition was filed in this case, the court below had no jurisdiction to find appellant’s child to be a dependent child.

In Interest of M.B., supra, 356 Pa.Superior Ct. at 261-262, 514 A.2d at 602.

We think the rationale set forth by the Court in In Interest of M.B. is equally applicable to the present case. There are clear distinctions between a custody hearing and a dependency adjudication which must be preserved. A brief review of these differences will illustrate further the necessity of our holding in this case.

In a custody proceeding between the parents, the single question before the court is: what is in the child’s best interest? Custody is awarded according to which parent can demonstrate, by a preponderance of the evidence, that the child’s best interest would be served by placement with him or her. In Re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977); Helsel v. Blair County Children and Youth Services, 359 Pa.Super. 487, 519 A.2d 456 (1986).

The determination and burden of proof change somewhat, if a third person is involved.

When the judge is hearing a dispute between the parents, or a parent, and a third party, the manner of inquiry is more complex. The question still is, What is in the child’s best interest? However, the parties do not start out even; the parents have a “prima right to custody,” which will be forfeited only if “convincing reasons” appear that the child’s best interest will be served by an award to the third party. Thus, even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the parents’ side. What the judge must do, therefore, is first, hear all evidence relevant to the child’s best interest, and then, decide whether the evidence on behalf of the third party is weighty enough to bring the scale up to even, and down on the third party’s side.

Hernandez, supra, 249 Pa.Super. at 286, 376 A.2d at 654. See also Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980).

A further distinction is the manner in which a custody action is to be pursued. This has been clearly established through statute and procedural rules. See 48 P.S. § 92; 42 Pa.C.S.A. § 5341 et seq.; Pa.R.C.P. 1915.1-1915.25.

A dependency determination is completely governed by statute. Initially, the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq., establishes the following purposes:

§ 6301. Short title and purposes of chapter
(a) Short title. — This chapter shall be known and may be cited as the “Juvenile Act.”
(b) Purposes. — This chapter shall be interpreted and construed as to effectuate the following purposes:
(1) To preserve the unity of the family whenever possible and to provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this chapter.
(2) Consistent with the protection of the public interest, to remove from children committing delinquent acts the consequences of criminal behavior, and to substitute therefore a program of supervision, care and rehabilitation.
(3) To achieve the foregoing purposes in a family environment whenever possible, separating the child from parents only when necessary for his welfare or in the interests of public safety.
(4) To provide means through which the provisions of this chapter are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other legal rights recognized and enforced.
1976, July 9, P.L. 586, No. 142, § 2, effective June 27, 1978.

The scope of the act is established in section 6303 wherein it states:

§ 6303. Scope of chapter
(a) General rule. — This chapter shall apply exclusively to the following:
(1) Proceedings in which a child is alleged to be delinquent or dependent.
(2) Transfers under section 6322 (relating to transfer from criminal proceedings).
(3) Proceedings arising under Subchapter E (relating to dispositions affecting other jurisdictions).
(4) Proceedings under the Interstate Compact on Juveniles, as set forth in section 731 of the act of June 13, 1967 (P.L. 31, No. 21), known as the “Public Welfare Code.” ¹
(b) Minor judiciary. — No child shall be detained, committed or sentenced to imprisonment by a district justice or a judge of the minor judiciary.

The specific method of proceeding under the statute is set forth in sections 6321 and 6334 which provide in pertinent part:

§ 6321. Commencement of proceedings
(a) General rule. — A proceeding under this chapter may be commenced:
(3) In other cases by the filing of a petition as provided in this chapter. The petition and all other documents in the proceeding shall be entitled “In the interest of ..., a minor,” and shall be captioned and docketed as provided by general rule.
§ 6334. Petition
A petition, which shall be verified and may be on information and belief, may be brought by any person including a law enforcement officer. It shall set forth plainly:
(1) The facts which bring the child within the jurisdiction of the court and this chapter, with a statement that it is in the best interest of the child and the public that the proceeding be brought and, if delinquency is alleged, that the child is in need of treatment, supervision or rehabilitation.

The procedural aspects are further governed by sections 6336, 6341 and 6351 which provide for the conduct of hearings, the adjudication and disposition of a child found to be dependent. Section 6336 provides:

§ 6336. Conduct of hearings
(a) General rule. — Hearings under this chapter shall be conducted by the court without a jury, in an informal but orderly manner, and separate from other proceedings not included in section 6303 (relating to scope of chapter).
(b) Functions of district attorney. — The district attorney, upon request of the court, shall present the evidence in support of the petition and otherwise conduct the proceedings on behalf of the Commonwealth.
(c) Record. — If requested by the party or ordered by the court the proceedings shall be recorded by appropriate means. If not so recorded, full minutes of the proceedings shall be kept by the court.
(d) Proceeding in camera. — Except in hearings to declare a person in contempt of court, the general public shall be excluded from hearings under this chapter. Only the parties, their counsel, witnesses, and other persons accompanying a party for his assistance, and any other person as the court finds have a proper interest in the proceeding or in the work of the court may be admitted by the court. The court may temporarily exclude the child from the hearing except while allegations of his delinquency are being heard.
1976, July 9, P.L. 586, No. 142, § 2, effective June 27, 1978.

A clear and convincing standard of proof is established in section 6341 which states in pertinent part:

§ 6341. Adjudication
(a) General rule. — After hearing the evidence on the petition the court shall make and file its findings as to whether the child is a dependent child, or if the petition alleges that the child is delinquent, whether the acts ascribed to the child were committed by him. If the court finds that the child is not a dependent child or that the allegations of delinquency have not been established it shall dismiss the petition and order the child discharged from any detention or other restriction theretofore ordered in the proceeding.
(c) Finding of dependency. — If the court finds clear and convincing evidence that the child is dependent, the court shall proceed immediately or at a postponed hearing, which shall occur not later than 20 days after adjudication if the child has been removed from his home, to make a proper disposition of the case.

See also In Interest of Leslie H., 329 Pa.Super. 453, 478 A.2d 876 (1984).

Finally, the alternatives available to the court following a determination of dependency are spelled out in section 6351.

§ 6351. Disposition of dependent child
(a) General rule. — If the child is found to be a dependent child the court may make any of the following orders of disposition best suited to the protection and physical mental, and moral welfare of the child:
(1) Permit the child to remain with his parents, guardian, or other custodian, subject to conditions and limitations as the court prescribes, including supervision as directed by the court for the protection of the child.
(2) Subject to conditions and limitations as the court prescribes transfer temporary legal custody to any of the following:
(i) Any individual resident within or without this Commonwealth who, after study by the probation officer or other person or agency designated by the court, is found by the court to be qualified to receive and care for the child.
(ii) An agency or other private organization licensed or otherwise authorized by law to receive and provide care for the child.
(iii) A public agency authorized by law to receive and provide care for the child.
(3) Without making any of the foregoing orders transfer custody of the child to the juvenile court of another state if authorized by and in accordance with section 6363 (relating to ordering foreign supervision),
(b) Limitation on confinement. — Unless a child found to be dependent is found also to be delinquent he shall not be committed to or confined in an institution or other facility designed or operated for the benefit of delinquent children.

A reading of the statute makes clear the difference between the question to be determined in a dependency hearing and that in a custody hearing.

The statute, in section 6302, defines a dependent child in the following manner:

§ 6302. Definitions
“Dependent child.” A child who:
(1) is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals;
(2) has been placed for care or adoption in violation of law;
(3) has been abandoned by his parents, guardians, or other custodian;
(4) is without a parent, guardian, or legal custodian;
(5) while subject to compulsory school attendance is habitually and without justification truant from school;
(6) has committed a specific act or acts of habitual disobedience of the reasonable and lawful commands of his parent, guardian or other custodian and who is ungovernable and found to be in need of care, treatment or supervision;
(7) is under the age of ten years and has committed a delinquent act;
(8) has been formerly adjudicated dependent, and is under the jurisdiction of the court, subject to its conditions or placements and who commits an act which is defined as ungovernable in paragraph (6); or
(9) has been referred pursuant to section 6323 (relating to informal adjustment), and who commits an act which is defined as ungovernable in paragraph (6).

Thus the court must be convinced by clear and convincing evidence that the child fits into one of the categories established in section 6302 before it can adjudicate the child as dependent. It is only after this determination is made that the application of section 6351 comes into play and the best interest of the child is considered when the court makes a disposition.

One last section to examine is section 6337 which provides a right to counsel. This supports purpose number (4) in section 6301, supra, which establishes the desire of the legislature to ensure a fair hearing and the protection of constitutional rights.

§ 6337. Right to counsel
Except as otherwise provided under this chapter a party is entitled to representation by legal counsel at all stages of any proceedings under this chapter and if he is without financial resources or otherwise unable to employ counsel, to have the court provide counsel for him. If a party appears without counsel the court shall ascertain whether he knows of his right thereto and to be provided with counsel by the court if applicable. The court may continue the proceeding to enable a party to obtain counsel. Counsel must be provided for a child unless his parent, guardian, or custodian is present in court and affirmatively waive it. However, the parent, guardian, or custodian may not waive counsel for a child when their interest may be in conflict with the interest or interests of the child. If the interests of two or more parties may conflict, separate counsel shall be provided for each of them.
1976, July 9, P.L. 586, No. 142, § 2, effective June 27, 1978.

This section has been interpreted to impose a requirement that counsel be appointed in dependency adjudications. In Interest of Theresa E., 287 Pa.Super. 162, 429 A.2d 1150 (1981); Commonwealth ex rel. Grimes v. Yack, 289 Pa.Super. 495, 433 A.2d 1363 (1981).

From this review of the Juvenile Act it is apparent that clear and convincing evidence must be presented to show the child is dependent as defined by the act. “The hearing judge should not ask what are the childs ‘best interests’ but whether the child is presently without proper care and if so, whether such care is immediately available.” In Interest of Theresa E., supra, 287 Pa.Superior Ct. at 178, 429 A.2d at 1158, citing In the Interest of Pernishek, 268 Pa. super. 447, 458, 408 A.2d 872, 877 (1979). In contrast, a custody petition raises the singular issue of what is in the best interest of the child with the standard of proof varying depending upon the parties involved. Hernandez, supra; Ellerbe, supra.

The different questions to be addressed and the distinctive procedural mechanisms designed to adjudicate these issues make it mandatory that a court not be permitted to intermingle custody and dependency determinations. This Court has looked with disfavor on parties who sought to bring proceedings under the Juvenile Act as an alternative way to seek custody. Yack, supra; Theresa E., supra. Likewise, we have stressed the importance of bringing a dependency petition as opposed to a custody action when the forfeiture of parental rights is at issue. Helsel, supra. See also In Interest of M.B., supra.

The lower court here made a dependency determination without the procedural safeguards provided for by the Juvenile Act. A petition for dependency determination was never filed and the parties were proceeding solely on cross-petitions for custody. In addition, the children were not provided with counsel as required by the statute. The rights of all the parties were thus substantially affected by the sua sponte determination of dependency.

In addition, the current thrust of child dependency actions is directed toward permanency planning. Pursuant to Public Law 96-272, June 17, 1980, Adoption Assistance and Child Welfare Act of 1980, the states are mandated to provide numerous services to families and children if they are to be eligible for federal matching funds for those services. Pennsylvania, through the Department of Welfare and the County Children and Youth Services offices, has fully implemented these services. Paramount to compliance is the requirement of due process and an appropriate judicial determination that removal of a child from his home was required. 55 Pa.Code § 3130.71(a). Prior to removal is the requirement that the agency make reasonable effort to prevent removal. 62 P.S. § 701 et seq.; 55 Pa.Code §§ 3130.11, 3130.13, 3130.35-3130.42. The federal and state law requires periodic court monitoring, which is the role of the Juvenile Court, 42 Pa.C.S. § 6351, 55 Pa. Code § 3130.71, and it also involves case plans for services for the child, parents and foster parents (55 Pa.Code § 3130.67) to: (1) improve conditions in the home (§ 3130.-67(6)(7)(8); and (2) facilitate child’s return home or plan for permanent placement (§ 3130.61-67).

Ultimately, the goal is to rehabilitate the family, reunite the child with his family or, after reasonable efforts over an appropriate period of time have failed, to terminate parental rights and free the child for adoption pursuant to the Adoption Act of 1980, Subchapter B Involuntary Termination, 23 Pa.C.S.A. § 2511(a).

Thus it is clearly apparent that with the enormous social and legal implications involved in a finding of dependency, this can only be accomplished through the proceedings in Juvenile Court pursuant to a dependency petition, which calls into play the full panoply of services, safeguards and goals provided by federal and state laws and resources. No matter how well intended the judge may be in a proceeding pursuant to an action for custody, national and state policy will not be followed and the law cannot operate to effectuate that policy.

In an addendum to the Opinion dated November 13, 1986, the lower court recognizes that dependency actions are governed by the Juvenile Act. The court concludes, however, that since the children have been supported by public assistance, they are wards of the state.

Although a formal finding of dependency may not have been made at the time the boys were determined to be in need of public assistance, they were without proper subsistence as required by law, 42 Pa.C.S.A. § 6302(1) (Pur-dons 1981), and, therefore were dependent. This situation has not changed since the boys were placed with Fallaro because she has not provided financial support for them____

Addendum to Opinion dated November 13, 1986, Forer, J., pp. 1-2).

The lower court went on to further justify its actions by stating:

To state that this Court is without jurisdiction to make a finding that the chidlren [sic] are dependent and then transfer custody would create an intolerable situation. Robert and Michael would be forced to remain in Falla-ro’s hostile, unstable home. The Commonwealth has a duty to protect and provide care for minor children. 42 Pa.C.S.A. § 6301(b)(i); see also Davidyan v. Davidyan, 229 Pa.Super. 495, 327 A.2d 139, 142 (1974); Friedman v. Friedman, 224 Pa.Super. 530, 535, 307 A.2d 292 (1973). This Court cannot ignore the fact that Robert and Michael are dependent and that their best interest and welfare require that they be transferred to a neutral, suitable foster home.

Id. at 2-3.

We must reject the court’s rationale for several reasons. First, we think to equate the receipt of welfare payments with a finding of dependency is totally unwarranted. Although a finding that a child is without subsistence would lend support to a determination of dependency, this is not to be construed in such a way so that receipt of public assistance equates with a lack of subsistence. In many instances, parents may be forced to rely upon public assistance as the sole means of support for themselves and their children. To rely on this fact, as the reason for finding a child dependent, could result in thousands of children being declared dependent upon proper petition for that reason alone.

The court’s concern with the welfare of the children is recognized, but we do not think this justifies an otherwise improper action. We agree with the brief of the amicus curiae that to allow such an action would set an undesirable precedent. Courts, when faced with a bitterly contested custody dispute, where the animus of the parties negatively affects the best interest of the children, could place the children in the child welfare system and avoid making the decision. In such instances, the children would be isolated from their families, the agencies burdened with an increased caseload and the ultimate resolution of the problem only postponed.

We hold that the courts must adhere to the procedures developed for resolution of the various problems which arise concerning the welfare of children. There are distinct methods established to determine custody and dependency because different issues are before the court and various interests must be protected. The standards of proof and rights of the parties vary depending upon the type of proceeding. It is clearly improper for a court to bypass the procedures and safeguards established to protect these rights by invoking the “best interest of the child.” Absent a dependency petition, the court is without jurisdiction to make a determination. In Interest of M.B., supra. The Order must thus be vacated and the case remanded. Unless a dependency petition is filed, the court must rule on the custody petitions filed by the parties. Jurisdiction relinquished.

      . A motion for stay was granted by this Court on November 10, 1986.


source: Caselaw Access Project

author: WIEAND, Judge: OLSZEWSKI, Judge,

license: Public Domain

text:
    528 A.2d 230
    COMMONWEALTH of Pennsylvania, Appellant, v. Robert Scott EICHELBERGER, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 20, 1987.
    Filed June 23, 1987.
    R. Scott Cramer, District Attorney, Duncannon, for Com., appellant.

      John B. Mancke, Harrisburg, for appellee.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   WIEAND, Judge:

On September 3, 1983, at or about 6:42 p.m., Robert Scott Eichelberger was operating a motor vehicle southwardly on Route 34, a two lane highway in Perry County. Suddenly and without prior warning, his vehicle crossed the center line into the northbound lane where it struck two vehicles travelling in the opposite direction. The driver of the second northbound vehicle was killed. Eichelberger was charged with involuntary manslaughter, driving while under the influence of alcohol, homicide by vehicle, homicide by vehicle while under the influence of alcohol, and two summary offenses. Following a non-jury trial, Eichelber-ger was found guilty only of homicide by vehicle and the summary offenses. Subsequently, in response to a defense motion for post-trial relief, the trial court arrested judgment on the conviction for homicide by vehicle. From this order arresting judgment, the Commonwealth appealed.

The standard for our review was stated in Commonwealth v. Robinson, 351 Pa.Super. 309, 505 A.2d 997 (1986), as follows:

“In reviewing an appeal from a trial court’s granting of motion in arrest of judgment, we must determine whether the evidence offered by the Commonwealth was legally sufficient to support the verdict. Commonwealth v. Froelich, 458 Pa. 104, 326 A.2d 364 (1974). To reach this determination, we accept all of the evidence and all reasonable inferences therefrom, upon which the fact-finder could have based the verdict; we can affirm the granting of a motion in arrest of judgment if, viewed in that manner, the evidence was nonetheless insufficient in law to find guilt beyond a reasonable doubt as to the crimes charged. Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973). We must view the evidence in the light most favorable to the Commonwealth.
Commonwealth v. Hazlett, 429 Pa. 476, 240 A.2d 555 (1968). Our task is the same whether the finder of fact was a jury or a judge sitting without a jury. Commonwealth v. Meadows, 232 Pa.Super. 292, 331 A.2d 827 (1974) [, aff'd 471 Pa. 201, 369 A.2d 1266 (1977)].”

Id., 351 Pa.Superior Ct. at 311-312, 505 A.2d at 998, quoting Commonwealth v. Nelson, 245 Pa.Super. 33, 36, 369 A.2d 279, 280 (1976), aff'd, 476 Pa. 269, 382 A.2d 715 (1977).

The offense of homicide by vehicle is defined as follows:

Any person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic except section 3731 (relating to driving under influence of alcohol or controlled substance) is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death.

75 Pa.C.S. § 3732. In Commonwealth v. Heck, 341 Pa.Super. 183, 491 A.2d 212 (1985), allocatur granted, 509 Pa. 535, 505 A.2d 251 (1986), a panel of this Court held that the statute could pass constitutional muster only if it were interpreted so as to require for conviction a degree of misconduct which rose to the level of criminal negligence.

When the evidence in the instant case is considered in the light most favorable to the Commonwealth, which won the verdict, it is readily apparent that it was sufficient to support the trial court’s finding that Eichelberger had violated the statutory provisions requiring that he operate his vehicle on the right side of the roadway. See: 75 Pa.C.S. §§ 3301, 3302. The law is uniformly clear, moreover, that driving a vehicle on the wrong side of the roadway is sufficient to permit an inference of criminal negligence. See: Commonwealth v. Wilkinson, 278 Pa.Super. 490, 420 A.2d 647 (1980) (prima facie violation of homicide by vehicle statute established by evidence that car was being driven on wrong side of road); Commonwealth v. Farrell, 208 Pa.Super. 200, 222 A.2d 437 (1966) (evidence that defendant drove truck on wrong side of road through intersection sufficient to prove element of recklessness necessary to sustain finding of involuntary manslaughter); Commonwealth v. Smoker, 204 Pa.Super. 265, 203 A.2d 358 (1964) (operation of vehicle in wrong lane, without visible reason or compulsion to do so, creates inference of recklessness sufficient to sustain conviction for involuntary manslaughter). Cf. Commonwealth v. Setsodi, 303 Pa.Super. 482, 450 A.2d 29 (1982) (defendant’s failure to look for approaching vehicles in opposing lane of traffic prior to making left turn into private driveway may have constituted recklessness or criminal negligence for purposes of establishing prima facie case of involuntary manslaughter).

Eichelberger testified that his vehicle crossed the center line and entered the lane of travel for oncoming vehicles because he had temporarily taken his eyes from the road ahead in order to look in the rear view mirror after hearing a noise behind him. The credibility and weight of this explanation were for the trier of the facts, in this case the trial judge, who could believe some, all, or none of it. So also, it was for the fact finder to determine whether Eichel-berger’s explanation, if believed, was sufficient to rebut the inference of criminal negligence arising from evidence that he had violated the rules of the road by allowing his vehicle to cross the center line of the roadway where it collided with oncoming vehicles. In weighing Eichelberger’s conduct to determine whether he was guilty of criminal negligence, the trier of the facts could also consider Eichelber-ger’s lack of sleep and his consumption of alcohol prior to the accident. When all of this evidence is considered, our conclusion must be that it was sufficient to support the verdict finding Eichelberger guilty of homicide by vehicle.

Because the trial court arrested judgment on the verdict finding Eichelberger guilty of homicide by vehicle, it did not consider the motion for new trial in which Eichelberger contended, for reasons therein stated, that the verdict was contrary to the weight of the evidence. Therefore, we will remand to permit the trial court to consider his motion for new trial.

The order arresting judgment is reversed, and the case is remanded for determination of appellee’s motion for new trial. Jurisdiction is not retained.

OLSZEWSKI, J., files a concurring opinion.

OLSZEWSKI, Judge,

concurring:

Though agreeing with the majority’s disposition of this case, I write separately to additionally note that the trial court acted outside the scope of its authority in granting appellee’s motion to arrest judgment of sentence on the vehicular homicide conviction. In Commonwealth v. Gaither, 355 Pa.Super. 502, 513 A.2d 1034 (1986), this Court stated:

It is clear that a trial judge has no more authority over a verdict in a non-jury trial than he does over a jury verdict. Following the recording of a verdict in a non-jury trial, the trial judge is limited to a consideration of post-verdict motions in arrest of judgment or the granting of a new trial. In a motion for an arrest of judgment, the trial judge cannot alter the verdict based upon a redetermination of credibility or a re-evaluation of the evidence.

Id., 355 Pa.Superior Ct. at 504, 513 A.2d at 1035 (citations omitted) (emphasis added).

In the instant case, the trial judge originally found appel-lee guilty of vehicular homicide in a non-jury trial, but the trial judge subsequently entered an order arresting the judgment of sentence on the vehicular homicide conviction. The trial judge acted improperly since his opinion in support of the order arresting judgment did not provide reasons as to why the facts established at trial were insufficient to support the vehicular homicide conviction. Rather, the trial judge merely re-evaluated the evidence adduced at trial, stating “Defendant’s (appellee’s) temporary inadvertence to the roadway ( ... I was aware of a noise behind be and I looked into my rear view mirror — See Transcript of Trial p. 129) cannot be construed as a conscious disregard of a known risk. The ommission (sic) on Defendant’s part to keep his eye on the highway does not warrant a finding of reckless or grossly negligent conduct.” Trial court opinion at p. 3. The trial judge, therefore, erred in granting appel-lee’s motion in arrest of judgment based on his re-evaluation of the evidence, rather than ascertaining that the evidence adduced at trial was insufficient to support the vehicular homicide conviction.

        . 18 Pa.C.S. § 2504.

      . 75 Pa.C.S. § 3731.

      . 75 Pa.C.S. § 3732.

      . 75 Pa.C.S. § 3735.

      . The summary offenses were (1) driving an unregistered vehicle, in violation of 75 Pa.C.S. § 1301, and (2) meeting a vehicle proceeding in the opposite direction, in violation of 75 Pa.C.S. § 3302.

      . But see: Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980); Commonwealth v. Houtz, 496 Pa. 345, 437 A.2d 385 (1981).

      . Eichelberger testified that he had slept intermittently and not well for four and one-half hours on the previous night. An intoxilyzer test administered to Eichelberger following the accident revealed a blood alcohol content of .09 percent.


text:
    528 A.2d 233
    Candy Sue HARTLEY v. D. Michael HARTLEY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 30, 1987.
    Filed June 30, 1987.

      James Coulter, Butler, for appellant.
    William C. Robinson, Butler, for appellee.
    Before CIRILLO, President Judge, and MONTEMURO and TAMILIA, JJ.
   TAMILIA, Judge:

Appellee/wife brought a petition to modify an earlier spousal and child support award entered against appellant/husband. Husband timely appeals an Order of the lower court which granted modification of the support award. He alleges the lower court erred in failing to credit him for real estate taxes he paid on the marital residence.

A detailed recitation of the facts in this case is necessary in order to understand the issue on appeal. The parties to this action separated in February of 1982. An Order of November 10, 1982, required husband to pay $1200 per month support for wife and three minor children, and $490 per month mortgage on the marital domicile. A modification to the original Order, dated November 7, 1983, continued to place the support obligation on the husband, ordering him to pay $1200 per month for support of wife and two minor children and $490 per month mortgage on the marital domicile. A subsequent modification to the support Order was made on May 6, 1985, requiring husband to pay $1435 per month for the support of wife and two minor children. A divorce Decree was entered December 3, 1985. By a subsequent Order of Court dated February 18, 1986, husband was ordered to pay, retroactive to June 5, 1985, $1600 per month support and maintenance for wife and one minor child. The same Order also stated:

Effective February 13, 1985 and continuing during occupancy of the marital property Candy Sue Hartley shall pay the monthly mortgage installments. In addition it is ordered that Candy Sue Hartley pay the insurance expense, the taxes and the cost of maintenance. The aforementioned expense shall be pro-rated on a calendar year basis in computing the respective obligations for 1985. The said David M. Hartley shall be credited with the expenses he has paid upon producing to Domestic Relations Services receipts evidencing the payments.

(Findings and Order, 2/18/86, p. 6).

Wife filed a motion for post-trial relief on March 4, 1986, requesting among other things, that the court eliminate the provision requiring wife to pay monthly mortgage installments on the marital property and insurance expenses, taxes, and cost of maintenance from February 13, 1985.

On July 11,1986, Senior Judge George P. Kiester, specially presiding, ordered husband to pay, effective June 5, 1985, $1600 each month for support and maintenance of wife and minor child. In addition, the Order stated:

Effective February 13, 1985 and continuing during occupancy of the marital property Candy Sue Hartley shall pay one-half of the monthly mortgage installments. In addition it is ordered that Candy Sue Hartley pay one-half the insurance expenses, one-half the taxes and one-half the cost of maintenance. The aforementioned expense shall be pro-rated on a calendar year basis in computing the respective obligations for 1985. The said David M. Hartley shall be credited with the expenses he has paid upon producing to Domestic Relations Services receipts evidencing the payments.

(Revised Order of Court, 7/11/86, p. 6).

Domestic Relations Services furnished the parties with an accounting filed September 26,1986 as required by the July 11, 1986 Order of Court. This accounting indicated husband owed arrearages amounting to $6,560.26. Husband filed exceptions to this accounting alleging that Domestic Relations had failed to include a credit to him with respect to “all taxes paid by him on the subject premises and included directly or by reference in the prior Order of Court.”

During the proceedings on the exceptions held before Judge Kiester, husband’s counsel stated that the real estate tax payments for which husband now seeks credit were for the tax years 1982 and 1983. These real estate taxes had not previously been paid by either party. Husband paid the 1982 and 1983 taxes in two installments. The first payment, made August 28, 1984, was in the amount of $701.24 and the second payment, made September 20, 1985, was in the amount of $2,171.70. The accuracy of the figures was not disputed. Husband’s counsel argued only that both payments should be credited to husband against his support arrearages. He urged that since no Order prior to the retroactive Order of July 11, 1986 specifically distributed the responsibility of payment of real estate taxes between husband and wife, husband should be credited for his payment. Additionally, husband’s counsel asserted the September 1985 payment post-dated the retroactive Order which was effective February 13, 1985 and, therefore, husband should receive credit for that payment.

In a memorandum filed October 6, 1986, Senior Judge Kiester ruled on the parties’ various exceptions to the accounting, and adjusted the arrearage figure to $7,135.67 instead of $6,560.26. Husband filed this appeal on November 3, 1986 from judgment entered November 3, 1986 in favor of wife.

After careful consideration of the facts presented by this case, this Court must affirm the decision of the lower court.

It is within the discretion of the lower court to determine the amount of a support Order. Costello v. LeNoir, 462 Pa. 36, 337 A.2d 866 (1975); see Shank v. Shank, 298 Pa.Super. 459, 444 A.2d 1274 (1982); see also Commonwealth ex rel. Gerstemeier v. Gerstemeier, 196 Pa.Super. 308, 175 A.2d 105 (1961). Likewise, it is within the discretion of the trial court to determine under all the circumstances what is just and equitable to the child and to the father. Commonwealth ex rel. Silverman v. Silver- man, 180 Pa.Super. 94, 98, 117 A.2d 801, 803 (1955). It is also within the court’s discretion to give only such credit to the father for contributions made in excess of the Order as it deems proper. Id.

Although the original support Order did not specifically designate whether husband or wife was to be responsible for payment of the real estate taxes on the marital property, the Order was before the trial judge for modification on several separate occasions and husband did not raise the issue. Case law indicates that husband could have argued that he be given credit for payments made by him outside the scope of the support Order governing during that time period, and the court could have considered whether credit was to be given against his support arrearages. Upon modification in July of 1986, the trial judge did, in fact, address the matter by issuing a modified Order imposing a pro-rata responsibility retroactive only to February 13, 1985 and not to the 1982, 1983 or 1984 tax years. At the time this Order was under consideration, the lower court did not give husband credit for the tax payments.

As this Court said in Silverman, supra:

The support laws of this Commonwealth were enacted primarily to provide support to those in need of it through compulsory payments by those who should provide it. Although past payments, particularly if they were meant to provide future support, are matters for the court’s consideration in making or amending orders and in punishing contempt, nevertheless the law contemplates that provision shall be made for those in need, at the time they are in need, and those responsible for providing these present needs cannot avoid future liability solely because of past contributions. This is particularly true where children are involved.

Id., 180 Pa.Superior Ct. at 98, 117 A.2d at 803.

This Court recognizes that the role of an appellate court in support proceedings is limited; absent a clear abuse of discretion, we will defer to the Order of the lower court. Scanlon v. Scanlon, 311 Pa.Super. 32, 37, 457 A.2d 98, 101 (1983) (citing Commonwealth ex rel. Vona v. Stickley, 287 Pa.Super. 296, 430 A.2d 293 (1981)). In Scanlon, supra, we said:

A finding of abuse is not lightly made but only upon a showing of clear and convincing evidence____ An abuse of discretion does not necessarily imply a willful abuse, but if, in reaching a conclusion, the law is overridden or misapplied or the judgment exercised is manifestly unreasonable as shown by the evidence or the record, discretion is then abused and it is the duty of the appellate court to correct the error.

Scanlon 311 Pa.Super. at 39, 457 A.2d at 101 (citations omitted).

Finding no such abuse of discretion in this case, we must affirm the judgment of the lower court.

Judgment affirmed.

      . Parties were granted a divorce on December 3, 1985 reserving to wife all claims for support, alimony, and equitable distribution of property. Parties will be designated husband and wife in the Opinion for clarity.

      . Findings of November, 1982, indicate wife was unemployed and husband earned $2,829.67 per month net income.

      . Findings of October 26, 1983, indicate wife was unemployed and husband had net income of $3,352.40 per month.

      . Findings of April 24, 1985, indicate wife was unemployed and husband earned net income of $3,577.00 per month.

      . Findings of February 9, 1986, state that husband had gross income in 1984 of $73,181.13 and net income of $57,919.53. Wife had no income in 1984.

      . Wife, on September 29, 1986, also filed exceptions to the accounting, but the allegations of such exceptions are not relevant to this appeal.

      . See Prescott v. Prescott, 284 Pa.Super. 430, 433, 426 A.2d 123, 125 (1981) (court abused its discretion in completely cancelling all of the arrearages owed), and Melzer v. Witsberger, 505 Pa. 462, 473, 480 A.2d 991, 997 (1984) (a parent may receive credit only for those expenditures which actually satisfy the obligation of reasonable and necessary support).


author: MONTGOMERY, Judge:

text:
    528 A.2d 236
    Patrick Lee CAVANAUGH, Individually and as Class Action Representative, Appellant, v. ALLEGHENY LUDLUM STEEL CORPORATION, Appellee, v. BETZ LABORATORIES, Appellee,
    Superior Court of Pennsylvania.
    Argued March 5, 1987.
    Filed June 29, 1987.

      Seymour Kurland, Philadelphia, for appellant.
    Robert B. Sommer, Pittsburgh, for appellees.
    Before CAVANAUGH, POPOVICH, and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

This is an appeal from an order denying class certification. The Plaintiff-Appellant contends that the lower court abused its discretion in denying a request for a continuance of the class certification hearing date. Further, the Plaintiff contends that the action should have been certified as a class action because sufficient evidence was presented to satisfy the class action requirements of the Pennsylvania Rules of Civil Procedure. After careful review, we conclude that the lower court erred in denying the request for a continuance of the certification hearing under the circumstances of the instant case, and will remand for further consideration by the lower court of whether or not a certification of the case as a class action is appropriate in light of prevailing law.

Briefly stated, the record indicates that in late December, 1985, public authorities advised consumers, including Plaintiff-Appellant Patrick Lee Cavanaugh, not to consume water supplied to their homes through the Tarentum and Brackenridge Water Plants. The warning was allegedly based upon a contamination of the water supply by a chemical known as “Slimicide”. It was alleged in the Complaint that the Defendant-Appellee, Allegheny Ludlum Steel Corporation (hereinafter referred to as “Allegheny”), had discharged the Slimicide from its plant in Brackenridge, Allegheny County, Pennsylvania, into the Allegheny River near the public water intake pipes which led to the two water plants.

The Appellant’s action was instituted as a class action on December 30, 1985, only a few days after the contamination warning. After Allegheny answered the Complaint, it joined Appellee Betz Laboratories, Inc. (hereinafter referred to as “Betz”) as an Additional Defendant. It did so on the basis that Betz, as the manufacturer and seller of the Slimicide product, had breached expressed and implied warranties. Betz did not respond to the Complaint Against Additional Defendant as a result of an open-ended agreement for an extension of time between itself and Allegheny.

Following the filing of this action, the parties engaged in depositions and other discovery. Inter alia, the Plaintiff-Appellant served interrogatories and document requests upon both Allegheny and Betz, seeking information concerning the nature and properties of the chemicals allegedly discharged, as well as the timing and the manner of the discharges. On May 7, 1986, prior to the completion of all discovery, the lower court, sua sponte, issued an order scheduling a hearing for May 23, 1986, concerning the question of whether or not the case should be certified as a class action.

In the days thereafter, the Appellant filed a Petition for Leave to Amend the Complaint, based upon the assertions that new counsel and the Appellant had learned facts which enabled them to formulate other theories of liability against both Allegheny and Betz. The Appellant also filed a notice of the taking of a deposition of a representative of the Pennsylvania Department of Environmental Resources, which had apparently analyzed various samples of the purportedly contaminated water. Further, the Plaintiff filed a Motion for a Continuance of the Class Certification Hearing Date. The continuance was sought on the following grounds: (1) the absence of the Plaintiff on active military reserve duty during much of the time just prior to the scheduled date for the class certification hearing would hamper preparation for the hearing; (2) the pleadings had not yet closed; (3) the Plaintiff desired to file an Amended Complaint which would purportedly clarify the issues raised; (4) the Plaintiff wanted responses to discovery requests, which were then overdue, for use at the certification hearing; and (5) the Plaintiff desired to take several depositions prior to the class certification hearing. Finally, the Plaintiff filed a Motion for Class Certification.

On May 23, 1986, the parties appeared before the lower court. The court granted the Plaintiffs request to amend its Complaint as to Allegheny. However, the court then denied the Plaintiffs motion for a continuance of the class certification hearing and directed the Plaintiff to proceed with his evidence.

The Plaintiff produced the testimony of various witnesses with respect to the contamination of the water supply by the Slimicide, and the discharge of the same by Allegheny. During the course of the hearing, the Plaintiff sought to produce a portion of the deposition of a witness from the Pennsylvania Department of Environmental Resources. However, the lower court excluded such testimony on the grounds that the Defendants had not completed their cross-examination of that witness during the course of depositions which had only been partially completed due to the conflicting schedule of the witness.

At the conclusion of the hearing, the trial court denied the motion for class certification, essentially on the grounds that the Plaintiff had not proven that the water was contaminated, and therefore, had not demonstrated that he had a viable claim. The court stated that in order to make a determination of the existence of common questions of law in fact, and in order to determine whether such common questions predominate, it had to have evidence to show something wrong was done which rendered the water supply contaminated. Thus, the lower court issued an Order denying the certification of the class, and transferred the case to arbitration to proceed as an individual action. The lower court issued another Order allowing the Plaintiff to amend his Complaint only as against Allegheny, but refusing it as to Betz. Allegheny was granted leave to amend its Complaint Against Additional Defendant, and the court noted that the motion to continue the class certification hearing was denied.

Class actions in our Commonwealth are, in significant part, guided by Pa.R.C.P. 1702, 1708 and 1709, which set forth the requirements and criteria for class certification. The appropriate interpretation of such rules and guidelines to be followed in our courts are explained in detail in a number of recent decisions. The Opinion in Janicik v. Prudential Insurance Company of America, 305 Pa.Super. 120, 127, 451 A.2d 451, 454 (1982), which thoroughly discussed the governing concepts which apply to the instant case, stated the following:

A lower court’s decision concerning class certification is a mixed finding of law and fact entitled to “appropriate deference” upon appeal. Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 235, 348 A.2d 734, 739 (1975), on remand, 241 Pa.Superior Ct. 192, 360 A.2d 681 (1976). “Trial courts are vested with broad discretion in determining definition of the class as based on commonality of the issues and the propriety of maintaining the action on behalf of the class”. Klemow v. Time, Inc., 466 Pa. 189, 197, 352 A.2d 12, 16 (1975). Accord, Sharkus v. Blue Cross of Greater Philadelphia, 494 Pa. 336, 342-43, 431 A.2d 883, 886 (1981); ABC Sewer Cleaning Co. v. Bell of Pennsylvania, 293 Pa.Superior Ct. 219, 225 n. 4, 438 A.2d 616, 619 n. 4 (1981). Consequently, a lower court’s order concerning class certification will not be disturbed on appeal unless the court failed to consider the requirements of the rules or abused its discretion in applying them. See, e.g., Sharkus v. Blue Cross of Greater Philadelphia, supra; Klemow v. Time, Inc., supra; Bell v. Beneficial Consumer Discount Co., supra. See also Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030 (5th Cir.1981).

Parties seeking certification have the burden of proof in a class certification proceeding. Klemow v. Time, Inc., supra. However, our courts do not require a strict burden of proof, but instead, observe the policy that decisions in favor of maintaining a class action should be liberally made. Bell v. Beneficial Consumer Discount Co., supra.

In essence, the burden on the class proponent is to establish the five requirements for class certification set forth in Pa.R.C.P. 1702: numerosity, common questions of law or fact, typicality, adequacy of representation, and fairness and efficiency. The class certification hearing is the time when the class proponent must present evidence of the underlying facts from which the court can conclude that these requirements are met. See Janicik v. Prudential Insurance Company of America, supra, where it is also explained that because the five requirements are closely interrelated and overlapping, it is not necessary that the class proponent prove separate facts in support of each, but rather, the burden is to sufficiently establish those underlying facts from which the court can make the necessary conclusions and discretionary determinations. Well-pleaded class action allegations, if admitted by the class opponent, may be considered as evidence at the class certification hearing. Pa.R.C.P. 1706; D’Amelio v. Blue Cross of Lehigh Valley, 347 Pa.Super. 441, 500 A.2d 1137 (1985).

Of particular relevance in the instant case, is the requirement of Pa.R.C.P. 1707 that the class certification hearing not take place until after the pleadings are closed or within thirty days after the last required pleading was due. Thus, we have held that a court may not make the initial class action determination until after the close of the pleadings to ensure that the class proponent is presenting a non-frivolous claim capable of surviving preliminary objections. Janicik v. Prudential Insurance Company of America, supra; see also Falkenhan v. Wise, 282 Pa.Super. 318, 422 A.2d 1135 (1980). Further, this approach is in harmony with the provisions of Pa.R.C.P. 1706 that well-pleaded class action allegations which are admitted may be considered as evidence at the class certification hearing.

It is also pertinent to address the issue of what consideration should be given to the merits of the class proponent’s claim at the time of the class certification proceedings. In Piltzer v. Independence Federal Savings & Loan Association of Philadelphia, 456 Pa. 402, 405, 319 A.2d 677, 678 (1974), the court stated: “Whether a suit should proceed as a class action is independent of the question whether plaintiffs have stated a cause of action or whether they can prevail on the merits.” See also Pincus v. Mutual Assurance Company, 457 Pa. 94, 321 A.2d 906 (1974). In noting the requirement of Pa.R.C.P. 1707(c), that the class certification hearing “shall be limited to the Class Action Allegations”, our Court has referred to the Explanatory Note to Rule 1707:

The hearing is confined to a consideration of the class action allegations and is not concerned with the merits of the controversy or with attacks on the other averments of the complaint. Its only purpose is to decide whether the action shall continue as a class action or as an action with individual parties only. In a sense, it is designed to decide who shall be the parties to the action and nothing more. Viewed in this manner, it is clear that the merits of the action and the right of the plaintiff to recover are to be excluded from consideration, (emphasis added)

Miller v. Federal Kemper Insurance Company, 352 Pa.Super. 581, 585, n. 3, 508 A.2d 1222, 1225, n. 3 (1986).

With all of these concepts in mind, we must examine the issues raised on appeal. First, we address the argument that the lower court abused its discretion in denying the Plaintiff-Appellant’s request for a continuance of the class certification hearing date. As noted earlier, we find merit in this contention.

The record shows that a class certification was not requested by the Plaintiff in this case, but was instead set by the lower court, sua sponte, while the parties were still engaged in discovery. While denying the Plaintiff’s request for a continuance, the lower court did allow the filing of an Amended Complaint. It did so at a time when Betz had not yet responded to the joinder Complaint of Allegheny.

There can be no question in these circumstances that the lower court held the certification hearing in this case before the close of all pleadings, and prior to “thirty (30) days after the last required pleading was due”, in violation of Rule 1707. The Plaintiff’s Amended Complaint had not yet been filed, let alone answered. Allegheny’s Amended Complaint had also not yet been filed.

The conclusion that the court held the certification hearing prematurely in this case is buttressed by the fact that the lower court essentially denied the class certification because Plaintiff had failed to establish evidence regarding whether or not the water was potable at the time of the incidents giving rise to the suit, as is discussed more fully later in this Opinion. The Plaintiff was engaged in discovery efforts, at that time of the certification hearing, clearly designed to disclose evidence on that very point. In such circumstances, the denial of a continuance of the certification hearing was an abuse of the discretion granted the lower court in such proceedings.

It is evident that the lower court’s Order denying a continuance of the class certification hearing, and denying certification of the class, must be vacated, and the case remanded for further proceedings, including the opportunity for additional hearings on the question of class certification. The timing of such hearings must comply with Rule 1707. Moreover, the lower court should address the question of a hearing with the clear policy of our Commonwealth in mind that decisions in favor of maintaining a class action should be liberally made. To that end, and in harmony with Rule 1707(b), we note that court may postpone the hearing pending disposition of any other motions, or for the purpose of permitting discovery with respect to the appropriate class action issues.

Upon remand, it is also important that the lower court be cognizant of the merit we discern in the Appellant’s second argument on this appeal. That contention relates to the lower court’s finding that, in essence, the Plaintiff had not established all aspects of evidence necessary to prove its case on the merits against the DefendantAppellees. Instead of focusing on the Plaintiff’s obligation to establish the factors relevant to class certification, the lower court improperly examined the merits of the litigation itself. In that regard, we find that the lower court erroneously equated the proof required to show a preponderance of common questions of fact or law, with the burden of proof required to prove liability. On the same grounds, the lower court also determined that there was an absence of typicality and predominance. See Pa.R.C.P. 1702(2), (3), and 1708(a)(1). It was obviously erroneous to reach such conclusions on the basis of the lower court’s evaluation of the merits of the Plaintiff’s claims.

In further proceedings in this case, after remand, the lower court should reexamine the questions of commonality, typicality, and predominance, together with all other factors relevant to the question of whether or not the case should be certified as a class action. In doing so, the court should assure that the parties have had a fair opportunity to conclude the pleadings, and to engage in efficient discovery pertaining to the relevant issues.

The Order of the lower court which denied a continuance of the class certification hearing and also denied class certification is hereby vacated, and the case is remanded for further proceedings consistent with this Opinion. Jurisdiction is not retained.

      . On the same grounds, in its Opinion in support of its Order, the lower court determined that the Plaintiff had failed to demonstrate the factors of typicality and predominance.

      . The lower court’s Opinion also addresses the merits of some of the damage claims covered in the Plaintiffs Amended Complaint. Such an issue should not have been considered in the context of the class certification aspects of this litigation. Because we are vacating the lower court’s Order denying certification, there is no need to review the correctness of the lower court's determination on that subject. We merely point out that such issue may only be the properly considered by the lower court at other stages of the litigation.

      . The lower court determined that the criteria of adequate representation, financial resources and the absence of a conflict of interest were met because no contrary evidence was produced to refute the allegations of same by the Plaintiff-Appellant. Further, the lower court found that the requirements of numerosity and manageability had been adequately established by the evidence presented at the certification hearing. However, we want to make clear that the parties are free to advance any position regarding any of the pertinent issues at future hearings before the lower court concerning the question of class certification, and the court is not bound by its initial, premature determinations.


author: DEL SOLE, Judge:

text:
    528 A. 2d 241
    COMMONWEALTH of Pennsylvania v. Dwayne HOOK, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 6, 1986.
    Filed July 10, 1987.

      Daniel M. Preminger, Philadelphia, for appellant.
    Frances G. Gerson, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before McEWEN, DEL SOLE and KELLY, JJ.
   DEL SOLE, Judge:

This is an appeal from the judgment of sentence imposing a two and one half year term of imprisonment for convictions for voluntary manslaughter and possession of an instrument of crime.

Mr. Hook was first convicted of these crimes at a jury trial in November, 1982. He was granted a new trial, however, based on ineffectiveness of trial counsel. This appeal comes to us from his second conviction after a jury trial in November, 1984. Just before the second trial was to begin the prosecution’s chief witness, Lydia Trapp, informed the court that she could no longer remember having witnessed the events she testified about at the Appellant’s first trial. The trial judge found her to be “unavailable” due to memory loss and permitted her testimony from the first trial to be read to the jury. Appellant claims this was error.

The Pennsylvania statute which governs the admissibility of former testimony is 42 Pa.C.S.A. § 5917, which provides that the former testimony of a person who has died, or who cannot be produced for trial or who is legally incompetent, may be admitted at a subsequent trial. The basis for the admission for prior testimony in this case was not this statute, since this statute is intended to govern only those situations where the witness is physically absent or incompetent to testify. Rather the trial court relied on the common law exception to the hearsay rule as set forth in Commonwealth v. Graves, 484 Pa. 29, 398 A.2d 644 (1979), which allows the admission of prior testimony when a. witness becomes unavailable due to memory loss.

In Graves, a Commonwealth witness who had testified against Graves at his first trial, stated at the second trial that he could no longer remember the incidents surrounding the crime. The witness was permitted to read the transcript of the first trial to refresh his recollection; he then testified before the jury but he only remembered part of what he had testified to at the first trial. The trial court in Graves then permitted the witness’s testimony from the first trial to be read to the jury. On appeal, the Supreme Court ruled that this type of memory loss rendered a witness unavailable for purposes of the common law exception. The Court in Graves noted it was extending the holding of Rothrock v. Gallaher, 91 Pa. 108 (1879), which held that a witness who had lost his memory completely due to old age or sickness was unavailable. The witness in Graves suffered from partial memory loss: he had forgotten much what happened on the night of the crime.

In a case following Graves, Commonwealth v. Von Smith, 303 Pa.Super. 534, 450 A.2d 55 (1982), the Commonwealth witnesses stated at the second trial that they could remember none of the events they testified to at the first trial. The trial judge ruled that they were unavailable and therefore their testimony at Von Smith’s first trial was admissable. Our Court affirmed the trial court, noting that total lack of recall presents a more compelling instance to find unavailability than partial lack of recall, as was the factual situation in Graves. Von Smith, 303 Pa.Super. at 540, 450 A.2d at 58.

In Commonwealth v. Sherman, 339 Pa.Super. 138, 488 A.2d 348 (1985) the former testimony was given at a preliminary hearing, where the victim made a positive identification of the Appellant as the man who shot him. Apparently, between the time of the preliminary hearing and the time of trial, the victim received several threats against his life. At trial, he recalled that the Appellant was present when he was shot, but he testified that he had forgotten whether or not the Appellant had a gun. The trial court permitted the admission of the witness’s testimony at the preliminary hearing to be read to the jury, and this Court affirmed, finding this to be a case of unavailability due to partial memory loss governed by Graves. Commonwealth v. Sherman, 339 Pa.Super. at 143, 488 A.2d at 450.

Finally, we have the case of Commonwealth v. Jones, 344 Pa.Super. 420, 496 A.2d 1177 (1985). Here again, a witness testified at trial that he had no recollection of his testimony at the preliminary hearing. The witness was found unavailable and his former testimony was admitted. The Jones court held that when a witness had testified under oath at a preliminary hearing and had been cross-examined by the defendant’s counsel, such testimony is admissible where a witness claims no memory of his former testimony at trial. Jones, 344 Pa.Super. at 431, 496 A.2d at 1192.

In each of these four cases, Graves, Von Smith, Sherman and Jones, a witness gave sworn testimony, subject to cross examination by the defendant, and when called upon to testify at a subsequent trial, claimed to be unable to recall the former testimony. The witnesses were found to be unavailable due to memory loss and their former testimony was admitted into evidence. The witnesses testified at the subsequent trial and were available for cross-examination as to the extent of their memory loss.

The Appellant argues that the instant case differs from Graves and its progeny, because Lydia Trapp was actually recanting her former testimony when she said she had no memory of what happened the night of the crime. He argues that the case is governed by Commonwealth v. Turner, 389 Pa. 239, 133 A.2d 187 (1957), which holds that when a witness recants, his former testimony may not be read to the jury. Having carefully reviewed the record, we cannot say that this was a recantation as occurred in Turner. Here the witness repeatedly stated that she could not remember much that happened on the night of the crime. She did not state, as did the witness in Turner, that she had given false testimony during the first trial. We find that in this case the trial court was correct in finding Lydia Trapp unavailable due to memory loss.

Where we find that there was trial error, however, is in that Lydia Trapp was not called to testify at the second trial. Graves teaches us that a witness who is unavailable due to partial memory loss must be called upon to testify as to the extent of his or her present memory at the subsequent trial and be available for cross-examination by the defendant. This preserves a defendant’s sixth amendment right to confront witnesses against him. In a case such as we have before us, a witness has, in effect, provided two different versions of her observation of the events in question: the earlier version was incriminating; the second was vague. The jury must be allowed to hear both versions, weigh the conflicting evidence and reach its verdict accordingly.

A case such as this one is controlled by Commonwealth v. Graves. A witness who claims loss of memory is unavailable for purposes of the common law exception to the hearsay rule, and his or her former testimony is admissible, provided the defendant had an opportunity to cross examine the witness at the earlier proceeding. The witness’s present testimony should also be admitted. As the Supreme Court noted in Graves:

... This approach has the value of fairness to both „ parties in that the necessary testimony is admitted with the opponent being permitted to cross-examine the witness both as to his asserted lack of memory as well as to his present memory.

Graves, 484 Pa. at 38, 398 A.2d at 649.

When a witness has been declared unavailable due to memory loss the jury must be given an opportunity to perform its function of weighing credibility. The forgetful witness must be called to the stand for the jury to evaluate his or her present testimony.

However, the issue of presenting former testimony without the witness being made available to testify has not been preserved for our review. The Appellant’s counsel objected vigorously to Lydia Trapp’s first trial testimony being read to the jury during the second trial; once the trial judge ruled that it was admissible, there was no request that Ms. Trapp be put on the stand. Furthermore, this issue was not raised in post trial motions or on appeal. We therefore find it has been waived.

Mr. Hook’s second allegation of error is that his sentence is excessive. Mr. Hook was sentenced to 2V2 to 5 years for voluntary manslaughter, and to a concurrent term of 1 to 2 years for possession of an instrument of a crime. Mr. Hook acknowledges that his sentence is within the Sentencing Guidelines but claims that it was excessive because the trial judge did not take into consideration the particular facts of the crime or the particular facts of Mr. Hook’s life.

The transcript of the sentencing hearing shows this claim to be completely without merit. The trial judge knew Mr. Hook well and was familiar with the circumstances of the crime. She set forth the reasons for her sentence clearly. We find no abuse of discretion.

Judgment of sentence affirmed.

      . In these cases governed by the Graves rule, the witnesses have lost recall of some or all of their previous testimony. They have not lost memory of all past events, as might a victim of amnesia or senility, which would be a fact situation controlled by Rothrock v. Gallaher, 91 Pa. 108 (1879).


author: ROWLEY, Judge:

text:
    528 A.2d 244
    COMMONWEALTH of Pennsylvania v. Joyce S. GRANGER, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 13, 1987.
    Filed July 10, 1987.

      Joseph P. Grimes, Philadelphia, for appellant.
    Leonard Deutchman, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and ROWLEY and HOFFMAN, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

We are presented, in this appeal, with the question of whether the conduct of the police in making available to the accused, who is in their custody, the unrequested opportunity to consult with a law student, who everyone mistakenly believes to be a lawyer, invalidates the accused’s subsequent waiver of her Sixth Amendment right to counsel.

This appeal arises from incidents occurring on November 16, 1983. That afternoon, Mrs. Schumacher, a 68 year old woman, was found by her son stabbed, approximately 90 times, to death in their home. The same day, upon conducting an investigation, the Philadelphia Police learned that Charles Schumacher, the victim’s son, had had an association with appellant. Appellant had occasionally solicited sex from Mr. Schumacher. Three weeks prior to the murder of Mrs. Schumacher, appellant had gone to the Schumacher house to solicit sex from Mr. Schumacher. He had declined, but agreed to go to the local speakeasy to purchase beer for her. Appellant was left alone with Mrs. Schumacher. Appellant then took from Mr. Schumacher’s closet a briefcase containing a Magnum .357 firearm and $160. Appellant told Mrs. Schumacher that Mr. Schumacher had asked her to watch the briefcase for him. Appellant then left. Thereafter, when Mr. Schumacher returned home, he notified the police of the theft and appellant was quickly apprehended. Mrs. Schumacher was the only eyewitness to the theft and had given a statement to the police implicating appellant.

On the evening of the murder, two detectives went to appellant’s home where she lived with her mother, Mrs. Granger, and two sisters. At that time, Mrs. Granger had already heard about the Schumacher murder. Mrs. Gran-ger voluntarily admitted the detectives into her home. Appellant was not present then but had stopped home earlier that day. The detectives asked Mrs. Granger to walk through the house. Though the detectives did not have a search warrant, Mrs. Granger consented. In the bedroom which appellant shared with her two sisters, the detectives observed a pair of blood-soaked blue jeans on an ironing board which they confiscated. Mrs. Granger did not object.

The next day, an arrest warrant was issued for appellant’s arrest. She was not located until late in the evening of November 27, 1983, at which time she was arrested. At that time, appellant was seventeen years old. Immediately after her arrest, appellant was placed on a drug maintenance program for three days to ease her withdrawal from methamphetamine addiction.

At the end of the three days, appellant notified the police that she wished to give a statement implicating her boyfriend in an unrelated murder. Appellant was given her Miranda warnings. Thereafter both appellant and her mother signed a form containing her rights. Appellant stated that she did not want an attorney. She then talked with her mother for a short time. Appellant then began telling the police about the unrelated murder.

Suddenly, appellant changed the topic and began talking about the Schumacher murder. The police interrupted appellant and summoned someone from the Defender’s Association office to counsel appellant. Although the police believed the person to be an attorney, he was in fact a law student interning with the Defender’s Association. The student, James Waller, counseled appellant not to speak with the police. After Mr. Waller left, appellant was again given Miranda warnings, again waived her right to counsel, and told the police that while she had been present during the murder, her boyfriend had killed Mrs. Schumacher. Appellant was again advised of her Miranda rights and was then given a lie detector test, which she failed. Upon being confronted with the failure, appellant asked the police to question her again, during which time she told them that she had stabbed the victim, but only once.

Following the denial of a motion to suppress her statements, appellant was tried by a jury and convicted of first degree murder, robbery, and possessing an instrument of crime. Post-trial motions were heard and denied. The trial court imposed a life sentence on the murder bill, with concurrent prison terms of five to ten years and one-half to five years for, respectively, robbery and possessing an instrument of crime. This direct appeal followed. Appellant requests that the verdict be set aside and a new trial granted.

The issue before us revolves around the suppression court’s refusal to suppress appellant’s statements to the police on the evening of November 30 to December 1, 1983. The suppression court determined, inter alia, that appellant knowingly, voluntarily, and intelligently waived her right to counsel prior to making all statements to the police. When reviewing the denial of a motion to suppress, our responsibility is

“to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.” ... In making this determination, this Court will consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.

Commonwealth v. Kichline, 468 Pa. 265, 279, 371 A.2d 282, 290 (1976) [quoting Commonwealth v. Goodwin, 460 Pa. 516, 521, 333 A.2d 892, 895 (1975) ] (citations omitted). With these standards in mind, we have reviewed the record of the suppression hearing and find, per the following analysis, no error by the suppression court.

Appellant specifically contends that because she consulted with a law student rather than with competent counsel, she was denied her constitutional right to effective assistance of counsel. Our review of the record discloses no evidence that appellant ever requested counsel. Appellant argues that her act of consenting to speak with someone who she thought was a lawyer was an invocation of her right to counsel. She concludes, “[c]learly, one cannot waive ones right to counsel, after speaking to one presumed to be counsel but later determined to be a non-attorney.” (Appellant’s Brief, p. 13). Appellant cites no authority, and we know of none, to support this determination.

In Commonwealth v. Hubble, 509 Pa. 497, 504 A.2d 168, cert. denied, — U.S. —, 106 S.Ct. 3272, 91 L.Ed.2d 563 (1986), our Supreme Court addressed the situation where a suspect had ambiguously requested to contact an attorney. Hubble was a suspect in a triple homicide. He was interviewed by the State Troopers on three different occasions. On the second occasion, he was accompanied by his wife who advised him to get a lawyer. Hubble then stated that he wanted a lawyer. He was permitted to place phone calls to his attorney, who was not available, and to his parole officer, who advised him to contact the Public Defender’s office. Hubble did not contact the Public Defender’s office, nor did he request to make further phone calls. The' Trooper then asked Hubble to give a taped statement. Hubble complied. The statement was noninculpatory. Then, as the Hubbles were about to leave, they stated that they wished to talk to each other and were given the opportunity to do so. About 45 minutes later, the Trooper told them that he had information placing Hubble at the scene of the crime. After again conferring with his wife, Hubble gave a taped confession. Prior to each statement, Hubble had been advised of his Miranda rights and had signed a written waiver of those rights.

In its analysis, the Hubble Court first noted the principle enunciated by the United States Supreme Court in Edwardv. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), i.e., once an accused has invoked his right to counsel, interrogation by the authorities must immediately cease. The Court then discussed application of the Edwards rule in a later United States Supreme Court case, Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984). Smith determined that the Edwards rule embodies two distinct inquiries.

First, courts must determine whether the accused actually invoked his right to counsel____ Second, if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.

Id. at 95-96, 105 S.Ct. at 492-93 (citations omitted).

Adopting this approach, the Hubble Court determined that the nature of Hubble’s request for counsel and the circumstances preceding the request were equivocal and thus held that Hubble had not in fact invoked his right to counsel.

As in Hubble, we are concerned in the instant case with the threshold inquiry of the Edwards principle, i.e., whether appellant actually invoked her right to counsel. The record before us reveals that at no time did the police attempt to coerce appellant into waiving her constitutional right to counsel. In fact, it was appellant who initiated the interrogation in the first place. Though appellant requested to speak to the police regarding an unrelated murder, she was given her Miranda warnings as a precaution. Appellant conferred with her mother, who at all important times throughout the evening accompanied appellant. Appellant waived her rights and chose to speak to the police without counsel. When she changed the subject to the Schumacher murder, it was the police who stopped the interrogation and summoned a public defender. Appellant and her mother were left alone in a room. When Mr. Waller arrived, he was sent in to talk to them. Appellant never requested this opportunity. When Mr. Waller left, without speaking to the police, appellant still did not express any desire to have an attorney present even though Mr. Waller had strongly advised her not to speak to the police until counsel was appointed to her. We further note that appellant has had significant prior experience in the criminal system and had on at least one previous occasion, when arrested for prostitution, exercised her right to remain silent.

Under these circumstances, we find no invocation, even ambiguous, of the right to counsel. Appellant’s assertion that her passive consent to the presence of an attorney was a de facto invocation of her right to counsel is clearly without merit. We therefore conclude that appellant’s initial waiver of counsel was intelligent, knowing, and voluntary. Having made an effective waiver, her waiver was not rendered invalid because the police, in a commendable exercise of caution, imposed on her the opportunity to speak with someone mistakenly believed to be an attorney. Thus, we do not cross the Edwards threshold and, accordingly, find no error by the suppression court.

Judgment of sentence affirmed.

HOFFMAN, J., concurs in the result.

      . Appellant raises two other issues: whether the suppression court erred in failing to suppress appellant’s statements as involuntary and not the product of a knowing, voluntary and intentional waiver of constitutional rights; and, whether the accumulative effect of various errors by the trial court denied appellant a fair trial. After a thorough review of the record and due consideration of these issues, we find that the trial court has adequately discussed and correctly decided these issues in its August 29, 1986 opinion. We will, therefore, limit our discussion to appellant's first issue.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: MONTEMURO, Judge:

text:
    528 A.2d 248
    SULLIVAN CONSTRUCTION COMPANY, INC., Appellant, HISTORICAL ARCH STREET DEVELOPMENT ASSOCIATES, Appellee.
    Superior Court of Pennsylvania.
    Argued March 11, 1987.
    Filed July 13, 1987.

      Mark B. Herrera, Philadelphia, for appellant.
    John J. Rendemonti, Devon, for appellee.
    Before CIRILLO, President Judge, and McEWEN and MONTEMURO, JJ.

       President Judge Cirillo, replaced the deceased Justice Roberts.

   MONTEMURO, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County sustaining appellee’s preliminary objections to appellant’s mechanic’s lien claim. The court of common pleas found that appellant had waived its right to file such a claim and, accordingly, struck the lien. We affirm.

On January 31, 1986, appellant Sullivan Construction Company, as general contractor, filed a mechanic’s lien against certain premises owned by appellee, Historical Arch Street Development Associates. Appellant had performed labor and furnished materials pursuant to a contract between the parties. On March 17, 1986, appellant filed a complaint upon the lien. Appellee filed preliminary objections to the complaint and alleged, inter alia, that appellant had signed a waiver of mechanic’s lien dated May 23, 1985. A copy of the waiver was attached to the preliminary objections thereby making it a part of the record. Appellant responded to the preliminary objections and admitted the execution of the waiver. Appellant denied, however, that the waiver was ever delivered to appellee. Appellant asserted that, because there was no delivery of the original of the waiver agreement, “there was never any intent to waive and relinquish all rights to file a mechanic’s lien.” Appellant’s Answer to Preliminary Objections ¶ 9. The court of common pleas, as do we, rejected this argument.

This appeal raises two issues: (1) whether nondelivery of the original of a validly executed waiver of lien renders the waiver invalid and unenforceable; and (2) whether the court of common pleas prematurely struck the mechanic’s lien prior to the taking of depositions.

The Mechanic’s Lien Law of 1963, 49 Pa.S.A. § 1505, provides that:

[a]ny party may preliminarily object to a claim upon a showing of exemption or immunity of the property from lien---- The court shall determine all preliminary objections. If an issue of fact is raised in such objections, the court may take evidence by deposition or otherwise____

See also Mar Ray, Inc. v. Schroeder, 242 Pa.Super. 14, 363 A.2d 1136 (1976) (a waiver of liens issue may be raised preliminarily as long as the waiver is made part of the record).

The party asserting a waiver of liens in order to defeat a claim must clearly prove the existence of the waiver. Clayton v. Lienhard, 312 Pa. 433, 167 A. 321 (1933). Appellee has met its burden by making part of the record a copy of the written waiver of lien, dated May 23, 1985, and signed by the president of appellant company. The waiver conformed to the statutory requirements outlined in 49 Pa.S.A. § 1401, which provides that

[a] contractor ... may waive his right to file a claim by a written instrument signed by him____

We accept, as we must, that appellant executed the waiver of liens but never delivered it. We are not persuaded by appellant’s argument that nondelivery renders a waiver invalid. Appellant has presented no authority to support its argument. The statute, 49 Pa.S.A. § 1401, requires only that the waiver agreement be written and signed by the contractor. The agreement in the case before us conforms to these requirements and is therefore valid. We see no reason to require any other proof of appellant’s intent to waive the right to file a lien.

Having determined that the court correctly found delivery of the waiver agreement to be irrelevant to the issue of the waiver’s validity, we conclude that the court did not act prematurely when it struck the mechanic’s lien. There was no disputed issue of fact upon which to take evidence by deposition or otherwise. See 49 Pa.S.A. § 1505.

Order affirmed.

      . When we review preliminary objections in the nature of a demurrer, we accept as true all of plaintiff-appellant’s well-pleaded facts. Kyle v. McNamara & Criste, 506 Pa. 631, 634, 487 A.2d 814, 816 (1985).

      . On appeal, appellant argues that it “was entitled to prove its allegations and should have been afforded the opportunity to take depositions or other discovery to disclose the underlying fraud and deceit which had given rise to the copy of waiver of liens submitted by [appellee].” Appellant's Brief at 8. However, appellant did not raise the issue of fraud in its answer to preliminary objections. Rather, it merely alleged that the original waiver agreement was executed by it but never delivered. Therefore, appellant asserted, “there was never any intent to waive or relinquish all rights to file a mechanic’s lien.” Answer ¶ 9. Appellant may not raise arguments on appeal that were not set out in either its complaint or in its answer to preliminary objections. See Kenworthy v. Burghart, 241 Pa.Super. 267, 270, 361 A.2d 335, 337 (1976), appeal dismissed, 478 Pa. 20, 385 A.2d 975 (1978). Moreover, averments of fraud must be alleged with particularity. See Pa. R.C.P. 1020(b). Appellant has failed to do this.