author: POPOVICH, Judge.

text:
    625 A.2d 75
    ACCU-WEATHER, INC., Appellant, v. THOMAS BROADCASTING COMPANY, Licensee of Television Station WOAY-TV, Appellee.
    Superior Court of Pennsylvania.
    Argued March 10, 1993.
    Filed May 19, 1993.

      John G. Milakovic, Harrisburg, for appellant.
    Thomas K. Kistler, Bellefonte, for appellee.
    Before CIRILLO, POPOVICH and HESTER, JJ.
   POPOVICH, Judge.

The case involves an appeal of the August 27, 1992, order entering judgment in favor of and granting the Appellee/Defendant’s preliminary objections in the nature of a lack of in personam jurisdiction and dismissing the Appellant/Plaintiffs complaint. We reverse.

In considering a motion to dismiss, this Court is to view as true the allegations in the complaint. However, this general rule does not apply where the movant is challenging in personam jurisdiction. When the Defendant mounts such an attack, the Plaintiff must come forward with sufficient jurisdictional facts by (affidavit, deposition or other) competent evidence to establish the court’s jurisdiction over the Defendant. See Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 66-67 n. 9 (3rd Cir.1984); Atlantic Financial Federal v. Bruno, 698 F.Supp. 568, 569-70 (E.D.Pa. 1988).

Under Pennsylvania’s long-arm statute, 42 Pa.C.S.A. § 5301 et seq. (Supp.1992-93), the manner by which a non-resident defendant/corporation may become subject to the jurisdiction of this Commonwealth’s courts is, as herein relevant, by consent. Id. at § 5301(a)(2)(h).

Accu-Weather, Inc. argues that the Defendant should be subject to jurisdiction in this action because it consented to jurisdiction by way of an Agreement dated August 29, 1989, which provided in relevant part:

6. Acceptance of this Agreement shall occur by Client upon the occurrence of anyone of the following events caused to happen by Client or any of its officers, directors, partners, employees, agents or representatives: (a) proper execution of this Agreement by Chent; (b) acceptance or access of the Service hereunder or any part thereof, or (c) access of the service after the expiration of any trial period stated herein or in separate written correspondence; whichever first occurs. Acceptance of this Agreement by AccuWeather, Inc. shall occur, at its election, upon the occurrence of any of the three events mentioned in the sentence immediately preceding or upon proper execution of this Agreement by Accu-Weather, Inc. No person has the authority to make representations or warranties on behalf of Accu-Weather, Inc. No person has the authority to make representations or warranties on behalf of AccuWeather, Inc. or to bind Accu-Weather, Inc. in any manner except as provided for in this Agreement.
‡ ‡ ‡ ‡ ‡
N. The parties agree to submit to the Pennsylvania Courts only any dispute arising out of this Agreement or related thereto, and consent to the jurisdiction of said Courts and further agree that any and all matters of dispute shall be adjudicated, governed and controlled under and by Pennsylvania law. [Emphasis added]

The Agreement also listed the Defendant as the “client” and the service level to be charged: BAUD RATE, 2400; Hours of service per month, 30; Hourly rate, $49; Monthly fee, $1,470; and Overtime hourly rate, $49.

When the Defendant failed to comply with the terms of the Agreement, the Plaintiff filed a complaint on breach of contract grounds wherein it was alleged that a representative of the Defendant, a West Virginia Corporation, made inquiry whether the Plaintiff could provide and make available to the Defendant “access to Accu-Weather’s weather data base.” Paragraph 3. The Plaintiff forwarded by mail the proposed Agreement, which was followed by a request by the Defendant that the Plaintiff “begin providing service.”

The Plaintiff complied with the Defendant’s request and made its service “available ..., and Defendant accessed the services provided and continued to access the services even after having reasonable opportunity to reject them, and with reason to know that [the Plaintiff] expected the terms of the written contract ... to apply * * * because Accu-Weather indicated same to Defendant ] ... both orally and in letters”, copies of which were attached as Exhibit “B” to the complaint. Paragraphs 9 & 10.

Further, the Plaintiff alleged that no timely notice of termination was received from the Defendant, and. this caused the August 29th Agreement to renew automatically and created the amount of $84,328.40 due and owing the Plaintiff. In reply, the Defendant filed preliminary objections raising, inter alia, a question of personal jurisdiction, one of the grounds being:

The Defendant did not accept the terms of the Agreement ..either by executing it or by unqualifiedly accepting benefits under it and therefore did not consent to jurisdiction of the Pennsylvania Courts---- Paragraph 4.

The court below agreed with the Defendant and, by order dated August 27, 1992, judgment was entered in favor of the Defendant. This appeal followed.

Initially, we need to make mention that the court below based its conclusion of law that no contract existed upon the fact that the Defendant, after receipt of the Plaintiffs Agreement (“offer”) for a two-year period, “made a counteroffer to accept Plaintiffs services for a three-month period.”

It is an accurate statement of the law that a reply to an offer which changes the conditions of the offer is not an acceptance, but a counter-offer. Hedden v. Lupinsky, 405 Pa. 609, 176 A.2d 406, 408 (1962). This counter-offer, so found the court, was not agreed to by the Plaintiff and rendered any agreement unenforceable.

On its face, the court’s conclusion is correct were it not for being premised upon facts unsupported by the record. The Defendant/Appellee concedes as much in its appellate brief at 2. In such a scenario, we are not bound by either the conclusion of law or the facts underlying it. See Commonwealth v. Lagamba, 418 Pa.Super. 1, 613 A.2d 1, 3 (1992). Thus we find meritless the court’s conclusion that no binding contract existed because a counter-offer by the Defendant was never accepted by the Plaintiff However, our inquiry is not at an end.

We next need to address whether the August 29th Agreement (“offer”) is enforceable despite the absence of the Defendant’s execution (“acceptance”) of the document.

It is settled that for an agreement to exist, there must be a “meeting of the minds,” ...; the very essence of an agreement is that the parties mutually assent to the same thing,____ Without such assent there can be no enforcible agreement.... The principle that a contract is not binding unless there is an offer and an acceptance is to ensure that there will be mutual assent____

Hahnemann Med. College & Hosp. of Phila. v. Hubbard, 267 Pa.Super. 436, 406 A.2d 1120, 1122 (1979) (Citations omitted).

Notwithstanding the aforesaid, it is equally well-established that “an offer may be accepted by conduct and what the parties d[o] pursuant to th[e] offer” is germane to show whether the offer is accepted. Gum, Inc. v. Felton, 341 Pa. 96,17 A.2d 386, 389 (1941). Accord Westinghouse Elec. Co. v. Murphy Co., 425 Pa. 166, 228 A.2d 656, 659 (1967); Selig v. Phila. Title Ins. Co., 380 Pa. 264, 111 A.2d 147, 151 (1955); Commander Petroleum Products, Inc. v. Sun Oil Co, 61 Dela. 463, 464 (1973); Borough of Lititz v. McMinn’s Road Materials, Inc., 60 Lanc.L.Rev. 479, 483-84 (1967); Basehore v. Stonecraft Products Co., 3 Lebanon L.J. 138, 144-45 (1951); Mezza v. Beiletti, 28 West.L.J. 211, 213 (1946), rev’d on other grounds, 161 Pa.Super. 213, 53 A.2d 835 (1947); cf. Matter of Schnur Enterprises, Inc., 42 B.R. 202, 205 (Bkrtcy.Pa.1984) (“... agreement for settlement is stated to be the essence of the agreement, it may ... be waived by the conduct of the parties.... ”).

With these precepts in mind, we look to the parties’ “course of conduct” to assess the presence of a contract. Clearly, the following is evident from the record: 1) Prior to the August 29th Agreement, a representative of the Defendant inquired whether the Plaintiff could provide the Defendant with a service making “access to Accu-Weather’s weather data base” available to the Defendant, Complaint, Paragraph 3; 2) In response to the Defendant’s inquiry, the Plaintiff mailed the August 29th Agreement to the Defendant for review (the relevant portions of which were reproduced supra), Complaint, Paragraph 4; 3) The Plaintiff provided and the Defendant had “access[ to] the services ... and continued to access the services” for approximately three months (September, October & November), well beyond any “demo” period refuted by the Plaintiff in its April 12, 1990, letter to the Defendant, Complaint, Exhibit “B”; and 4) No “trial” period is provided for in the August 29th Agreement; and 5) The August 29th Agreement listed specifically that “acceptance or access of the Service” provided by the Plaintiff would constitute one of the means by which “[acceptance of th[e] Agreement” would be accomplished by the Defendant, Complaint, Paragraph 6.

Instantly, we have a “course of conduct”, spanning a three-month period, whereby the Defendant extracted a benefit from the Plaintiff consistent with the terms of the August 29th Agreement. Even the court below acknowledged as much; to-wit:

In August, 1989, Defendant contacted Plaintiff to inquire whether Plaintiff could provide Defendant access to Plaintiffs weather data base. On August 29, 1989, Plaintiff forwarded to Defendant by mail a proposed written agreement, and the service to Defendant by Plaintiff was initiated. Defendant used Plaintiffs service until late September, 1989, then did not use the service again until late November, 1989. Defendant used the service from December, 1989, through half of January, 1990.

Opinion 8/27/92 at 2-3. However, the court below relied, erroneously, upon the absence of the Defendant’s signature in concluding that the Agreement was unenforceable.

In Wilson v. Pennsy Coal Co., 269 Pa. 127, 112 A. 135 (1920), our Supreme Court was confronted with a parol agreement prepared by the Defendant/Appellant subsequent to an earlier written contract. The Defendant sought to alter the written contract by the subsequent understanding which was never signed by the Plaintiff. In refusing to enforce the latter agreement, the Court observed:

Briefly stated, appellant’s contention is that the parol agreement set up in the affidavit of defense constituted a legally binding contract between the parties, notwithstanding the failure of the plaintiff to execute the papers evidencing the contract. This states the only question in the case. The contention of appellant overlooks a well-recognized rule of law. Nowhere is this rule better or more concisely stated than in Maitland v. Wilcox, 17 Pa. 231, by Lewis, J. It is there said:
“An arrangement of terms, in contemplation of a written contract, is not a perfect agreement upon which an action can be maintained. To produce this effect, it must be shorn, by the acts or declarations of the parties, that they intended the agreement to be operative before execution, and without regard to the writing. This principle is peculiarly applicable to the case before us, where the lease proposed would not have been valid without writing.”
Quite as much can be said here. Not only does the affidavit show conclusively that in making the parol agreement the parties had in contemplation the subsequent reduction of the terms to writing, but there is neither act nor declaration of either party alleged showing an intention that the agreement should be operative before execution, and without regard to the writing.

269 Pa. at 129-30, 112 A. at 136 (Emphasis added).

Unlike Wilson, albeit the Defendant here did not sign the August 29th Agreement, we have a document which declares on its face an intention that the Agreement would “be operative before execution” with the acceptance of/access to a benefit (service) offered and provided by the Plaintiff to the Defendant, which “course of dealing” would be considered the equivalent of embracing the binding effect of the document as if executed.

Because acceptance of a contract may be manifested by one’s “course of dealings” with the other party, see West inghouse Elec. Co., supra; Selig, supra; Felton, supra, the Defendant had a duty to speak when confronted with a document providing, unequivocally, that receipt of the Plaintiffs services would be tantamount to assenting to the binding nature of the August 29th Agreement. Compare Deolalikar v. Murlas Commodities, Inc., 602 F.Supp. 12, 16 (E.D.Pa.1984); Felton, supra; Indiana Mfg. Co. v. Hayes, 155 Pa. 160, 26 A. 6 (1893); Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 450 A.2d 36, 39 (1982); Continental Bank v. Brodsky, 225 Pa.Super. 426, 311 A.2d 676, 678 (1973); Borough of Lititz, supra; Mezzo, supra. Its failure to do so is detrimental to the defense of in personam jurisdiction.

“It is well-settled that a court’s jurisdiction over the person may be conferred by consent or agreement.” Commonwealth ex rel. Rothman v. Rothman, 209 Pa.Super. 180, 184, 223 A.2d 919, 922 (1966). “It must be recognized that jurisdiction of the subject matter cannot be conferred upon a court by agreement, — contra as to jurisdiction of the person____” Schleifer v. Zoning Bd. of Adjustments, 374 Pa. 277, 280, 97 A.2d 782, 784 (1953).
It is also well-settled that parties to a contract may agree in advance to submit to the jurisdiction of a given court, and provide for the appointment of an agent to receive process. National Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964); Restatement, Judgments, § 18 and comments c and d (1942); Restatement 2d, conflict of Laws, § 32 and comments e and f (1969).

Brodsky, supra, 225 Pa.Super. at 429, 311 A.2d at 677; contrast Atlantic Financial Federal v. Bruno, supra, 698 F.Supp. at 570-71.

The August 29th Agreement detailed the courts of Pennsylvania as the situs for resolving any dispute regarding the contractual relationship between the parties. Once we conclude, as we do, that the Agreement is efficacious and not eviscerated by the absence of the Defendant’s “formalized” execution of the documents, the conduct engaged by the Defendant was sufficient to obligate it to the terms of the Agreement and the jurisdiction of this Commonwealth. To the extent that the court below held to the contrary, it is reversed and the case is remanded for a continuation of the case through the judicial process.

Order reversed, case remanded and jurisdiction is relinquished.

      . The Appellee/Defendant consists of Thomas Broadcasting Co., licensee of television station WOAY-TV of Oakhill, West Virginia.

      . The Appellant/Plaintiff is Accu-Weather, Inc. of Centre County, Pa.

      . We respond to the Plaintiff’s contention that the failure by the Defendant to affix its signature to a verification or affidavit to the preliminary objections constitutes an admission by the Defendant to all of the averments in the complaint. This assertion is waived for the Plaintiff's failure to raise it, initially, in the court below. See Pa. R.App.P. 302(a).

      . As to the discrepancy in dates as to when the Defendant accessed the Plaintiff’s service, be it October-November of 1989 or November of 1989-January of 1990, the fact remains that the Defendant had the benefit of the Plaintiff’s service by availing itself of the same as contemplated by the August 29th Agreement, i.e ., conduct which we find triggered the binding effect of the Agreement.


source: Caselaw Access Project

author: CERCONE, Judge.

license: Public Domain

text:
    625 A.2d 80
    COMMONWEALTH of Pennsylvania v. Robert L. MORGAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 19, 1993.
    Filed May 19, 1993.

      Shelley Stark, Asst. Public Defender, Pittsburgh, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and CERCONE, JJ.
   CERCONE, Judge.

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Allegheny County, dated June 17, 1992, after appellant was convicted of one count of aggravated assault and one count of reckless endangerment. We affirm.

The facts which gave rise to the charges in this case were aptly stated by the trial judge as follows:

On February 20,1991, a group of individuals was situated at the corner of Fourth Street and Camp Avenue, located in Braddock. The group was attempting to secure a ride to a party. The victim, Clayton Coleman, stopped at the intersection in a pick-up truck, and was approached by members of the group for a ride to the party. The [appellant], in an automobile, pulled up behind the victim’s truck and hollered to the victim to move his vehicle. The victim moved his truck to allow the [appellant] to pass, but the [appellant] got out of his vehicle displaying a gun and fired at least one warning shot into the air. He then approached the victim and shot him in the groin.

Lower Court opinion, filed 9/9/92 at 1-2.

The Honorable Walter R. Little conducted a non-jury trial on April 29, 1992 and found appellant guilty of both counts. Appellant filed post-trial motions which the trial court denied. On May 6,1992, the Commonwealth filed notice of its intention to seek the mandatory minimum sentence for committing a crime with a firearm, pursuant to 42 Pa.C.S.A. § 9712. At the sentencing hearing, the trial judge sentenced appellant to a term of incarceration of seven and one-half (7jé) to fifteen (15) years. Appellant filed a motion to modify sentence. The trial judge denied the motion and this timely appeal followed.

Appellant raises the following three issues for our review:

1. did the lower court err in imposing sentence based oh incorrect guidelines sentence ranges;
2. did the lower court err in imposing the mandatory sentence provisions of 42 Pa.C.S.A. § 9712 and [the deadly weapon enhancement of] 204 Pa.Code [§] 303.4;
3. did the Commonwealth fail to disprove beyond a reasonable doubt that Mr. Morgan [appellant] acted in justifiable self-defense?

Because the appropriate relief on appellant’s third issue would require an arrest of judgment, we shall consider it first.

Appellant contends that the Commonwealth failed to sustain its burden of disproving his affirmative defense of self-defense. Such a claim, in essence, is a challenge to the 'sufficiency of the evidence. It is well settled that when sufficiency of the evidence claims are raised, “an appellate court must review the evidence presented and all reasonable inferences drawn therefrom in a light most favorable to the verdict winner and determine whether on the record there is a sufficient basis to support the challenged conviction.” Commonwealth v. Madison, 501 Pa. 485, 490, 462 A.2d 228, 231 (1983) (citations omitted). The proper application of this test requires us to evaluate the entire trial record and all evidence actually received in the aggregate, and not as fragments isolated from the totality of the evidence. Commonwealth v. Harper, 485 Pa. 572, 576, 403 A.2d 536, 538 (1979). See also Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986) (explicating appropriate application of standard of review set forth in Harper, supra). This standard means that we must view the evidence in the light most favorable to the Commonwealth as the verdict winner, and drawing all proper inferences favorable to the Commonwealth, determine if the trier of fact could reasonably have concluded that all of the elements of the crime were established beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa. 134, 143, 555 A.2d 818, 823 (1989). We note that the trier of fact is free to believe all, part, or none of the evidence presented, Griscavage, 512 Pa. at 546, 517 A.2d at 1259, and that “the Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence.” Commonwealth v. Harper, 485 Pa. at 576, 403 A.2d at 538.

With regard to the defense of self-defense, we have held: [W]here an accused raises the defense of self-defense under 18 Pa.C.S.A. § 505, the burden is on the Commonwealth to prove beyond a reasonable doubt that the [criminal act] was not a justifiable act of self-defense. The Commonwealth sustains its burden of disproving self defense if it establishes at least one of the following: 1) the accused did not reasonably believe that he was in danger of death or serious bodily injury; or 2) the accused provoked the use of force; or 3) the accused had a duty to retreat and the retreat was possible with complete safety.

Commonwealth v. McClain, 402 Pa.Super. 636, 641, 587 A.2d 798, 801 (1991), allocatur denied, 528 Pa. 636, 598 A.2d 993 (1991) (emphasis in original).

In the present case, taking the evidence in a light most favorable to the Commonwealth as the verdict winner, we find that the Commonwealth more than sufficiently disproved appellant’s defense of self-defense. The testimony of three of the Commonwealth witnesses, including the testimony of the victim, Clayton Coleman, demonstrates that appellant was in a car which pulled behind a car driven by Coleman. Coleman had stopped his vehicle in the middle of Fourth Street to talk with acquaintances who were watching a fire in the area. The driver of the car in which appellant was a passenger honked for Coleman to pull to the side of the road. Coleman complied. At this juncture, appellant exited the car and fired a gun in the air. Appellant then approached Coleman, hit him in the face, and shot him in the groin.

Appellant testified that he thought Coleman was brandishing a gun and shot Coleman before Coleman had an opportunity to shoot him. Notwithstanding this evidence, however, the trial judge, sitting as the trier of fact, was free to- accept all, some or none of the evidence presented. Griscavage, supra. Moreover, the trial judge concluded that had appellant remained in his car, instead of provoking a confrontation, the shooting would never have occurred. We therefore conclude that the trial judge properly found that appellant was not acting is self-defense.

Appellant’s next two claims question the trial court’s sentencing scheme. He contends that the trial court erred by miscalculating the pertinent sentencing guideline ranges, and by applying the mandatory minimum sentence along with the deadly weapon enhancement. He does not contend that the sentence meted out to him by the trial court is illegal. Rather, appellant challenges the discretionary aspects of his sentence. Appellant has included in his brief a separate statement detailing his averments that a substantial question exists regarding the appropriateness of the sentence imposed under the Sentencing Code as required by the Pennsylvania Rules of Appellate Procedure. See 42 Pa.C.S.A. § 9781(b); Pa.R.A.P., Rule 2119(f), 42 Pa.C.S.A.; Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). We may therefore proceed to ascertain whether appellant has raised a substantial question for our review.

The determination of whether a particular issue constitutes a substantial question must be evaluated on a case by case basis. Commonwealth v. Losch, 369 Pa.Super. 192, 201 n. 7, 535 A.2d 115, 119 n. 7 (1987). “However, we will be inclined to allow an appeal where an appellant advances a colorable argument that the trial judge’s actions were: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.” Id. Further, an allegation that the sentencing court erroneously applied the Sentencing Guidelines presents a substantial question. 42 Pa.C.S.A. § 9781(c)(1); Commonwealth v. Scullin, 414 Pa.Super. 442, 447, 607 A.2d 750, 752 (1992). Here, appellant contends that the sentencing court erroneously utilized an incorrect calculation of the suggested sentence ranges under the guidelines, and by applying the deadly weapons enhancement in the guidelines along with a mandatory sentence. We therefore find that appellant has presented substantial questions for our review and we may proceed to address the merits of his claims.

Appellant first maintains that the trial judge incorrectly ascertained the sentencing ranges in the sentencing guidelines. The trial judge conceded that the sentencing ranges enunciated at the sentencing hearing were incorrect. He claims, however, that he had already relied on the Commonwealth’s proper calculations in the sentencing form it prepared. We have reviewed that sentencing form and find that its calculations were, in fact, correct. We therefore find no error in the trial court’s reliance on the Commonwealth’s calculations, despite the erroneous rendition of the sentencing ranges at the hearing.

Next, appellant argues that the trial judge erred in applying the Mandatory Minimum Sentence, pursuant to 42 Pa.C.S.A. § 9712 and the deadly weapon enhancement. In the present case, the trial judge sentenced appellant to a term of imprisonment of ninety (90) to one hundred eighty (180) months. The trial judge applied the deadly weapon enhancement to the sentencing ranges, as follows:

Standard Range: 84-114 months
Aggravated Range: 102-136 months
Mitigated Range: 66-96 months

Thus, the sentence fell within the standard range of sentencing and comported with the mandatory minimum sentence. Relying on this court’s decision in Commonwealth v. Grimmitt, 354 Pa.Super. 463, 512 A.2d 43 (1986), appellant contends that it was error to apply the deadly weapon- enhancement in this case where the mandatory minimum sentence was sought. In Grimmitt, the defendant pled guilty to two counts of robbery in which his cohort pointed a pistol at the victim. Although the Commonwealth sought to apply the mandatory minimum under section 9712, the sentencing court sentenced Grimmitt to a term of imprisonment of eleven and one-half (lijé) to twenty-three (23) months. The Commonwealth appealed and we reversed. We held that consistent with our decision in Commonwealth v. Williams, 353 Pa.Super. 312, 509 A.2d 1292 (1986), the mandatory minimum sentence was applicable to cases involving accomplices who did not visibly possess firearms. Thus, we held that Grimmitt should have received a minimum sentence of five years imprisonment. Grimmitt, 354 Pa.Super. at 465, 512 A.2d at 44.

The Commonwealth also alleged, however, that the trial court erred in failing to apply the deadly weapon enhancement section of the sentencing guidelines. As to that point, we held:

Since defendant is to receive a mandatory five year minimum sentence under section 9712, he should not be sentenced to an additional twelve to twenty-four months confinement under the deadly weapon enhancement section of the sentencing guidelines, which applies to defendants sentenced pursuant to the guidelines.

Id. at 466, 512 A.2d at 45.

Because we directed the trial court in Grimmitt not to impose an additional twelve to twenty-four months onto the mandatory minimum sentence, appellant in the case sub judice argues that the trial court erred by applying both the mandatory minimum sentence as well as the deadly weapons enhancement. We do not interpret the decision in Grimmitt as broadly as appellant, however.

We find pertinent language from the commentary to the sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing germane to our holding. The sentencing commission discussed how mandatory sentences are to be applied with the sentencing guidelines:

Most of the mandatory sentencing statutes explicitly state that the guidelines do not supersede the mandatory minimum sentencing provisions, while other mandatory sentencing statutes do not include such language. The law seems to be the same whether the mandatory statute includes this provision or not: in all cases subject to a mandatory sentencing law, the court has no power to sentence below the mandatory minimum notwithstanding any guidelines provision.
However, the court must consider the guidelines whenever the guidelines suggest a longer sentence than the mandatory minimum required.
A guideline sentence form is required for all cases that are subject to a mandatory minimum sentence law, regardless of whether the guidelines suggest a sentence above or below the minimum sentence required by the mandatory law. Where the guidelines suggest a longer sentence than the mandatory minimum law, and the court chooses to impose the mandatory minimum sentence, reasons for departure must be given.

Pa.C.Sent.3d Section V (August 1, 1988) (emphasis added). The commentary concerning statutorily mandated sentences provides:

When a required mandatory minimum sentence is required by statute, one or more of the ranges that would normally be correct may include sentence suggestions that are shorter than the mandatory minimum sentence. In such cases, the suggested guidelines ranges are those parts of the standard, mitigated, or aggravated ranges which are equal to or above the shortest length of confinement allowed by law. If no part of the aggravated range is longer than the mandatory minimum sentence, then the mandatory minimum is the guidelines sentence recommendation.

Pa.C.Sent.3d § 303.9(b) (August 1, 1988). In reconciling the mandatory minimum sentence for crimes committed with firearms and the deadly weapon enhancement, we recognize that the deadly weapons enhancement applies solely to the sentencing guideline calculation. It is not to be utilized with a mandatory sentence. It only enhances the suggested sentences found in the sentencing guidelines. In contrast, the mandatory minimum sentence for crimes committed with firearms is the shortest sentence possible for such crimes, notwithstanding sentencing guideline ranges which may be lower. The sentencing court has no discretion in refusing to apply either the mandatory minimum sentence or the deadly weapons enhancement. See 42 Pa.C.S.A. § 9712(c) (the trial court has no authority to impose a lesser sentence than that provided in section 9712(a)); Commonwealth v. Cornish, 403 Pa.Super. 492, 589 A.2d 718 (1991) (sentencing court may not disregard the deadly weapon enhancement in determining the appropriate guidelines sentencing ranges). Since the trial court must consider both the mandatory minimum sentence and the deadly weapons enhancement in fashioning sentence, we are compelled to find that our decision in Grimmitt cannot be interpreted so broadly as to exclude consideration of one where both are applicable. We therefore interpret our decision in Grimmitt, supra, as prohibiting the trial court from tacking the deadly weapons enhancement onto the mandatory minimum sentence itself. Rather, in accordance with the sentencing guidelines, the trial court must add the deadly weapons enhancement to the appropriate sentencing ranges to ascertain whether the sentence should be higher than the mandatory minimum.

In the ease sub judice, the trial judge sentenced appellant in accordance with the sentencing guidelines after accounting for the deadly weapon enhancement. He did not, as this court held was error in Grimmitt, tack the deadly weapon enhancement onto the mandatory minimum sentence of five years. We therefore find that the sentence imposed on appellant was appropriate.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 2702(a)(1).

      . Id. § 2705.

      . Appellant also contends that trial counsel was ineffective for failing to preserve his first two issues for our review. Notwithstanding, the trial judge considered these claims in his opinion to this court. Therefore the issues are properly before us. See Commonwealth v. Moore, 389 Pa.Super. 473, 567 A.2d 701 (1989) (where the trial court considered an amended post-trial motion on the merits of the issue without granting permission for the defendant to file nunc pro tunc, the issue was not waived).

      . Section 9712 states in pertinent part:
      (a) Mandatory sentence. — Any person who is convicted in any court of this Commonwealth of ... aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault), ... shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.
      * # # $ % #
      (c) Authority of court in sentencing. — There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentenced provided in this section.
      42 Pa.C.S.A. § 9712.

      . When calculating the sentencing ranges, the sentencing guidelines mandate the following procedure:
      When the court determines that the defendant possessed a deadly weapon, as defined in 18 Pa.C.S.A. § 2301 (relating to definitions), during the commission of the current conviction offense; at least 12 months and up to 24 months confinement shall be added to the guideline sentence range which would otherwise have been applicable.
      204 Pa.Code § 303.4, 42 Pa.C.S.A. § 9721.

      . The decision in Grimmitt did not explain how the sentencing guidelines factored into the trial court’s sentence. What is certain, however, is that the trial judge sentenced Grimmitt to a term substantially below the minimum sentence required by section 9712.


author: Opinion PER CURIAM:

text:
    625 A.2d 642
    Rose HILL and Williard Hill, Appellees, v. Nancy DIVECCHIO, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 12, 1991.
    Filed Feb. 12, 1993.
    Reargument Denied April 26, 1993.

      Victor E. Vouga, Butler, for appellant.
    Before ROWLEY, President Judge, and KELLY and CERCONE, JJ.
   Opinion PER CURIAM:

In this opinion we are called upon to determine whether the trial court properly found that a grandmother and step-grandfather have standing under 23 Pa.C.S.A. § 5312 of the Custody and Grandparents Visitation Act to maintain an action for partial custody and visitation where the child’s custodial parent, who is the daughter and step-daughter of the parties bringing the action, had chosen not to allow her child to visit with the natural grandmother and step-grandfather. Following a hearing, the trial court awarded the natural grandmother and step-grandfather visitation rights. We affirm the trial court’s order awarding visitation rights in favor of the natural grandmother, but reverse the order as it pertains to the step-grandfather.

The relevant facts and procedural history are as follows. The mother lived with her mother and step-father until she married in 1981, at age 23. The mother and her husband (the father) separated and shortly thereafter, the mother discovered that she was pregnant. The mother and father reconciled briefly. The child was born on March 7, 1985. The mother and father obtained a divorce in November of 1985. In April of 1986, the mother and the child moved to the grandmother’s and step-grandfather’s home and remained there until February of 1987. From February, 1987, until June, 1989, the grandparents had little contact with the child.

On June 13, 1989, the grandmother and step-grandfather filed a petition, in a custody action commenced by the father, seeking grand-parental partial custody. A custody counselor held hearings and recommended that the grandmother and step-grandfather be awarded partial physical custody of the child. On December 3, 1990, the trial court issued an order adopting the custody counselor’s recommendations. The mother filed exceptions to the findings and recommendations of the custody counselor and requested a hearing de novo.

In her status conference statement, the mother challenged the trial court’s order. The mother argued that 23 Pa.C.S.A. § 5312 was unconstitutional. The mother also argued that the trial court erred in applying 23 Pa.C.S.A. § 5312 to the facts of this case. In her discussion of legal issues presented, the mother challenged the step-grandfather’s standing to bring suit. The trial judge issued an order granting a hearing to be held on February 20, 1991. The trial court also awarded the grandmother and step-grandfather visitation with the child pending the outcome of the litigation.

On February 20, 1991, the trial court received evidence presented by the grandmother, step-grandfather and the mother. The child also testified. However, the trial court refused to address the issue of the constitutionality of 23 Pa.C.S.A. § 5312 due to the mother’s failure to comply with Pa.R.Civ.P. 235 which requires a party to give notice to the Attorney General of Pennsylvania of a constitutional attack on a statute and file proof of giving such notice. After the close of evidence, that same day, the trial court determined that both the grandmother and step-grandfather had standing pursuant to 23 Pa.C.S.A. § 5312 and issued an order granting them partial custody. ■ This timely appeal followed.

On appeal, the mother raises the following issues for our review:

I. WHETHER 23 Pa.C.S. § 5312 VIOLATES THE FOURTEENTH AMENDMENTS [sic] PROTECTION OF PARENTAL RIGHTS AS IT INTRUDES INTO THE PROTECTED AREA OF THE FAMILY WITHOUT A SHOWING OF A “COMPELLING STATE INTEREST.”
II. WHETHER THE “BEST INTEREST OF THE CHILD” STANDARD MUST BE APPLIED WITHIN CONSTITUTIONAL CONFINES.
III. WHETHER 23 Pa.C.S. § 5312 UNCONSTITUTIONALLY SHIFTS THE BURDEN OF PROOF TO THE DEFENDANT.
IV. WHETHER 23 Pa.C.S. § 5312 VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT AND DISCRIMINATES AGAINST SINGLE, DIVORCED PARENTS.

Mother’s Brief at 6.

At the outset, we must determine whether we are compelled to outrightly deny the mother’s appeal due to her direct disobedience of the trial court’s order instructing her to deliver the child for visitation to the grandmother and step-grandfather. The mother’s direct disobedience of the trial court’s order forced the grandmother and step-grandfather to institute contempt proceedings. When the mother failed to appear at the contempt hearing, the trial court was compelled to issue a bench warrant for her arrest which is still outstanding at this time.

An order issued by a court with jurisdiction over the subject matter and the person must be obeyed by the parties until it is reversed by orderly and proper proceedings. Philadelphia M.T. Assn. v. International Long. Assn., 453 Pa. 43, 49-50, 308 A.2d 98, 102 (1973); Hutchison by Hutchison v. Luddy, 417 Pa.Super. 93, 115, 611 A.2d 1280, 1292 (1992). Generally, where the disobedience of a court order is a flagrant one and where the appellant has been held in contempt or given an opportunity to present an excuse for the disobedience and the excuse is not acceptable, then a denial of an appeal should follow. Commonwealth ex rel. Beemer v. Beemer, 200 Pa.Super. 103, 107, 188 A.2d 475, 477 (1962). However, the Superior Court is not compelled to sua sponte quash an appeal when the appellant is in contempt of the trial court’s order if a discussion of the merits of the case would provide edification to both bench and bar. Fatemi v. Fatemi, 371 Pa.Super. 101, 107, 537 A.2d 840, 843 (1988).

Instantly, as a threshold step, we must resolve the subject matter jurisdiction issue of whether the grandmother and step-grandfather had standing to assert a cause of action under 23 Pa.C.S.A. § 5312 against their own daughter or stepdaughter before we may proceed to the merits of the mother’s appeal. The resolution of this issue has significant importance to both bench and bar. It is of particular importance, in light of the fact that all prior discussions of similar issues by this Court have maintained that an action cannot be asserted by a grandparent against his or her own son or daughter. See Herron v. Seizak, 321 Pa.Super. 466, 468 A.2d 803 (1983) (grandparents lack standing where both parents are present and object to visitation); Gradwell v. Strausser, 416 Pa.Super. 118, 610 A.2d 999 (1992) (maintaining that the statutory rights created under 23 Pa.C.S.A. § 5311 through 5313 provide a means for grandparents or great-grandparents, on the noncustodial side, to guard against potential estrangement). Thus, we will permit the appeal to proceed despite the mother’s contemptuous disobedience of the trial court’s February 20, 1991 order and first consider whether the trial court had subject matter jurisdiction to entertain the grandmother’s and step-grandfather’s petition for visitation and/or partial custody.

As a general matter, the question of standing is distinguishable from that of subject matter jurisdiction. However, under some statutes, the issue of standing becomes interwoven with that of subject matter jurisdiction. When a statute creating a cause of action includes the designation of who may sue, then standing becomes a jurisdictional prerequisite to an action. See, e.g., Sutton v. Miller, 405 Pa.Super. 213, 222-23, 592 A.2d 83, 87-88 (1991) (where statute creating cause of action specifies that only a “plaintiff in possession” may sue to compel an adverse party to commence an action of ejectment, plaintiffs possession of property becomes jurisdictional prerequisite to bringing action). See also Maxson v. McElhinney, 370 Pa. 622, 88 A.2d 747 (1952); 3 Pa.Std.Prac. § 14:11 (when a statute creates a cause of action, the person or persons so designated are the only proper plaintiffs).

The statute in the instant case, 23 Pa.C.S.A. § 5312 (hereinafter “Grandparents Visitation Act”), both creates a cause of action and designates the parties who may bring suit under its provisions. In reading the language of the statute, we keep in mind the basic tenet of statutory construction which requires a court to construe the words of a statute according to their plain meaning. 1 Pa.C.S.A. § 1903(a); Commonwealth v. Stanley, 498 Pa. 326, 335, 446 A.2d 583, 587 (1982) ; Fireman’s Fund Insurance Co. v. Nationwide Mutual Insurance Co., 317 Pa.Super. 497, 502, 464 A.2d 431, 434 (1983) . When the words of a statute are unambiguous, they are not to be disregarded under the pretext of pursuing the spirit of the statute. 1 Pa.C.S.A. § 1921(a). Keeping these principles in mind, we will now review the Grandparents Visitation Act, which contains the following pertinent language:

In all proceedings for dissolution, subsequent to the commencement of the proceeding and continuing thereafter or when parents have been separated for six months or more, the court may, upon application of the parent or grandparent of a party, grant reasonable partial custody, visitation rights, or both, to the unmarried child if it finds that visitation rights or partial custody, or both, would be in the best interest of the child and would not interfere with the parent-child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the party and the child prior to the application.

23 Pa.C.S.A. § 5312.

Previous decisions of this court interpreting the Grandparents Visitation Act would indicate ostensibly that only the parents of the non-custodial parent have standing to bring suit for visitation or partial custody under the Grandparents Visitation Act. Upon closer inspection, however, these cases are readily distinguishable from the instant situation. In Herron v. Seizak, supra, grandparents filed an action seeking visitation with their grandchild under the provisions of section 5312. This court opined that the Grandparent Visitation Act gives grandparents a right to seek partial custody or visitation in situations in which:

one parent was unable to see that her parents had a chance to get to know their grandchild. The interference by the court [in the parent’s decision whether the child would see the grandparent or not] was justified by the absence of that parent, who if she were present, could assure access of the child to the grandparent.

Herron v. Seizak, 321 Pa.Super. at 470, 468 A.2d at 805. Although this statement seemingly limits standing to the parents of the non-custodial parent, the facts in Herron are distinguishable from those in the present case.

First, the grandchild in Herron resided with both parents, who were not divorced or involved in dissolution proceedings, a prerequisite of maintaining an action under the plain language of 23 Pa.C.S.A. § 5312. Reiterating the requirements of the Grandparents Visitation Act, we stated:

The [Act] provides visitation rights to grandparents upon a finding by the court that visitation would be in the best interests of the child. The Act provides this right only in three circumstances: (1) when a parent is deceased; (2) when parents’ marriage is dissolved; and (3) when the child has resided with the grandparents for a period of 12 months or more.

Herron v. Seizak, 321 Pa.Super. at 469, 468 A.2d at 805. Accordingly, we held that the grandparents had not stated a cause of action upon which relief could be granted:

[Appellants in the instant appeal would have the court direct parents, both of whom have chosen not to have their children visit the grandparents, to permit such visitation. Nothing in the statutory law legitimizes such an intrusion by the courts into family life.

Id. at 470, 468 A.2d at 805 (emphasis added). Therefore, because (1) both parents were alive; (2) the parents were not involved in dissolution proceedings; and (3) the child has not resided with the grandparents for more than one year, the plain language of the statute clearly and unambiguously precluded the action. Thus, any discussion in Herron of the statute’s intent or spirit was purely dicta.

Likewise, our recent holding in Gradwell v. Strausser, supra, fails to resolve the question before us. In that case, the maternal grandparents sought legal custody of their grandchild and brought suit under the similar provisions of 23 Pa.C.S.A. § 5313. At the time the action was commenced, the child resided with her paternal grandfather, Luther Strausser (Luke), pursuant to a temporary court order. However, legal custody remained with her parents. The parents filed an answer and new matter requesting both legal and physical custody. Throughout the duration of the action, the parents were not divorced or involved in dissolution proceedings. After a hearing, the trial court vacated its prior temporary order and entered a new order temporarily transferring legal and physical custody of the child to her parents. Subsequently, the maternal grandparents and Luke filed a motion requesting that “testimony be taken and that the agency rendering family counseling to the parties report on the parents’ status.” Id. 416 Pa.Super. at 122, 610 A.2d at 1001. Following a conference, the trial court granted the parents’ motion to dismiss the proceedings.

Both the maternal grandparents and Luke appealed the trial court’s order. Confusing the requirements to maintain an action for custody with those for partial visitation or partial custody, Luke argued that he had overcome the natural parents’ prima facie right to custody because, pursuant to 23 Pa.C.S.A. § 5313, he resided with the child for close to two years, a prerequisite for maintaining an action under § 5313. Initially, we reviewed the “intent” of the Grandparents Visitation Act by stating:

[T]he statutory rights created under section[s] 5311-5313 provide a means for grandparents or great-grandparents on the non-custodial side to guard against potential estrangement ... that might occur after one parent dies, or after the parents separate or divorce and custody of the child is with one parent.

Gradwell v. Strausser, 416 Pa.Super. at 128, 610 A.2d at 1004. However, we declined to address whether Luke met the statutory requirements to seek relief under its provisions. In this regard, we stated:

The [Grandparents Visitation Act], however, speaks to partial custody or visitation; it does not provide a right of action for custody. We find, therefore, that section 5313 is not applicable to the matter before us. The complaint, though captioned “Complaint for Visitation,” sought physical and legal custody in the prayer for relief. The trial judge disposed of this matter as a custody dispute, and consequently the appellants have argued the case on appeal as such.

Id. (emphasis in original). In light of the foregoing, we held that the trial court properly concluded that the grandparents had no standing to seek custody of the child, and affirmed the order of the trial court. Because we did not resolve the issues presented under the Grandparents Visitation Act in Gradwell, our discussion of the purpose and spirit of the Act was purely dicta and has no bearing on the matter presently before us.

Our review of the language of 23 Pa.C.S.A. § 5312 convinces us that it is both clear and unambiguous. The “grandparents” of a child whose parents are divorced or involved in dissolution proceedings may maintain an action for partial visitation or partial custody. The legislature did not limit standing to the parents of only the non-custodial parent. Because we are not free to disregard the plain language of the statute in order to pursue its spirit, we conclude that the grandmother in the instant case has standing to pursue visitation or partial custody under section 5312. However, the unambiguous words of the statute which state “upon application of the parent or grandparent of a party” preclude the mother’s step-father, the child’s step-grandfather, from .asserting a cause of action for visitation and/or partial custody in conjunction with the child’s natural grandmother and he must be dismissed as a party to this lawsuit. See Sharah’s Estate, 49 Pa.C.C. 649, 68 P.L.J. 757 (1920) (where step-children are of the blood of the husband, who had no estate to distribute, they do not come within the class of next of kin to the wife and would not be entitled to any share in the distribution of her estate); In re Estate of Humphrey, 254 F.Supp. 33 (1966), reversed sub. nom., Humphrey v. Tolson, 384 F.2d 987 (D.C.Cir.1966) (under District of Columbia statute abolishing common-law distinction between kindred of whole and half blood, a step-child may inherit from a step-parent who dies intestate); Estate of Davis, 107 Cal.App.3d 93, 165 Cal.Rptr. 543 (1980) (where decedent was survived by issue, his unadopted step-children were not entitled to share in his intestate estate); In re O’Connor’s Will, 140 Misc. 757, 251 N.Y.S. 686 (1931) (daughter of testatrix’s deceased step-son held not “interested” in estate, hence not “necessary” or “proper party” in probate of will).

Next, we will proceed to consider the four issues raised by the mother questioning the constitutionality of 23 Pa.C.S.A. § 5312. These issues were first raised in the exceptions she filed on December 17, 1990 to the recommendations of the custody counselor in conjunction with her request for a hearing de novo before the trial court. Upon consideration of the mother’s exceptions, the trial court directed that a status conference be held on January 4, 1991. The issue of the constitutionality of 23 Pa.C.S.A. § 5312 was once again raised by the mother in her status conference statement filed with the trial court on January 4, 1991. However, the record indicates that the mother never filed Pa.R.Civ.P. 235 notice with the Attorney General’s Office alerting it to the fact that she intended to question the constitutionality of 23 Pa.C.S.A. § 5312 at the hearing de novo. Because of the mother’s failure to comply with Pa.R.Civ.P. 235, the trial court refused to address the mother’s constitutional challenges to 23 Pa. C.S.A. § 5312.

An appellate court will not consider a challenge to the constitutionality of a statute if the issue has not been raised in the court below or if no notice has been given to the Attorney General. In re Adoption of Christopher P., 480 Pa. 79, 389 A.2d 94 (1978). The proper method to attack the constitutionality of a statute in a civil case is to plead the issue and give notice to the Attorney General as required by Pa.R.Civ.P. 235. Irrera v. Southeastern Pennsylvania Transp. Authority, 231 Pa.Super. 508, 331 A.2d 705 (1974). The trial court’s refusal to address a constitutional issue is proper where there is no indication in the record of compliance with Pa.R.Civ.P. 235 requiring notice to the Attorney General where the litigant raises the issue of the constitutionality of a statute. Hummer v. Board of School Directors, 101 Pa.Cmwlth. 16, 18, 515 A.2d 359, 361 (1986). If the litigant raising the constitutionality of a statute fails to notify the Attorney General pursuant to Pa.R.Civ.P. 235 and Pa.R.A.P. 521, the claim is barred. Kepple v. Fairman Drilling Co., 532 Pa. 304, 312-314, 615 A.2d 1298, 1303 (1992); Faust v. Messinger, 345 Pa.Super. 155, 159, 497 A.2d 1351, 1353 (1985). See also Petition of City of Clairton, 139 Pa.Cmwlth. 354, 357, 590 A.2d 838, 840 (1991), citing Butler v. Rolling Hill Hospital, 382 Pa.Super. 330, 555 A.2d 205 (1989), allocatur denied, 522 Pa. 623, 564 A.2d 915 (1989).

Instantly, the mother initially failed to apprise the Attorney General’s Office pursuant to Pa.R.Civ.P. 235 of her planned challenges to the constitutionality of 23 Pa.C.S.A. § 5312, first upon the filing of her exceptions to the custody counselor’s recommendations and then before the commencement of the hearing de novo on February 20, 1991. Therefore, the trial court properly refused to address these improperly raised constitutional claims. See Keiserman v. Springfield Twp., 99 Montg. 312 (1975) (the question of the constitutionality of a statute may not be determined unless proper notice is given to the attorney general); Speece v. Lebanon Parking Authority, 65 Pa.D. & C.2d 408 (1974) (an act of the General Assembly ought never be pitted in combat with the constitution unless manifestly necessary and all procedural steps thereto properly taken).

On appeal, the mother has attempted to resurrect her procedurally flawed constitutional challenges to 23 Pa.C.S.A. § 5312 by belatedly giving notice to the Attorney General’s Office pursuant to Pa.R.A.P. 521 after the trial court refused to address her constitutional challenges to the statute. This we cannot permit.

This is not a case where the constitutional challenges to the statute arose in the middle of the trial and the Attorney General’s Office was promptly notified of the constitutional challenges to the statute upon the filing of the appeal pursuant to Pa.R.A.P. 521. See Commonwealth ex rel. Stein v. Stein, 487 Pa. 1, 406 A.2d 1381 (1979) (plurality); Dranzo v. Winterhalter, 395 Pa.Super. 578, 577 A.2d 1349 (1990). Here, the mother initially pled her planned challenges to the constitutionality of 23 Pa.C.S.A. § 5312 in both her exceptions to the custody counselor’s recommendations and in her status conference statement to the trial court before the hearing de novo. Accordingly, the mother had ample opportunity to comply with Pa.R.Civ.P. 235 and alert the Attorney General’s Office to her planned constitutional challenges before the hearing de novo occurred. Thus, the mother’s failure to comply with Pa.R.Civ.P. 235 will not be excused by a belated notice filing under Pa.R.App.R. 521(a), and we are constrained to find her constitutional challenges to 23 Pa.C.S.A. § 5312 waived on appeal. See Wynnewood Civic Ass’n v. Board of Adjustment, 406 Pa. 413, 179 A.2d 649 (1962) (a question not properly raised in the court will not be considered on appeal even though the question to be raised involves a constitutional issue). See also Corabi v. Curtis Publishing Co., 437 Pa. 143, 262 A.2d 665 (1970); Brunswick Corp. v. Key Enterprises Inc., 431 Pa. 15, 244 A.2d 658 (1968) (questions raised by appellant which were not properly raised in the court below will not be considered on appeal).

Based upon the foregoing analysis, the trial court’s order awarding partial custody and visitation rights to the grandmother is affirmed; however, the trial court’s order as it pertains to the step-grandfather is reversed as the step-grandfather lacked standing under 23 Pa.C.S.A. § 5312 to be a party to this lawsuit.

Order affirmed in part and reversed in part.

      . The father left Pennsylvania and returned to his family in Nevada.

      . On June 26, 1985, the father filed a complaint seeking partial custody or visitation. On August 16, 1985, the trial court entered an order awarding the father partial custody. The father resides in Las Vegas, Nevada. His custody rights are not in dispute.

      . It is well-settled that the question of subject matter jurisdiction may be raised at any time, by any party, or by the court sua sponte. Barndt v. Barndt, 397 Pa.Super. 321, 325, 580 A.2d 320, 322 (1990).

      . Section 5313 provides:
      If an unmarried child has resided with his grandparents or great-grandparents for a period of twelve months or more and is subsequently removed from the home by his parents, the grandparents or great-grandparents may petition the court for an order granting them reasonable partial custody or visitation rights, or both, to the child. The court shall grant the petition if it finds that visitation rights
      425 Pa.Super.Ct.Reports~14

        would be in the best interest of the child and would not interfere with the parent-child relationship.
      23 Pa.C.S.A. § 5313.

      .. Pa.R.Civ.P. 235. Notice to Attorney General. Constitutionality of Statute
      In any proceeding in a court subject to these rules in which an Act of Assembly is alleged to be unconstitutional and the Commonwealth is not a party, the party raising the question of constitutionality shall promptly give notice thereof by registered mail to the Attorney General of Pennsylvania together with a copy of the pleading or other portion of the record raising the issue and shall file proof of the giving of the notice. The Attorney General may intervene as a party or may be heard without the necessity of intervention. The court in its discretion may stay the proceedings pending the giving of the notice and a reasonable opportunity to the Attorney General to respond thereto. If the circumstances of the case require the court may proceed without prior notice in which event notice shall be given as soon as possible; or the court may proceed without waiting action by the Attorney General in response to a notice.

        Note: By definition Rule 76, registered mail includes certified mail. Amended March 11, 1991, effective July 1, 1991.

        . Pa.R.A.P. 521(a). Notice to Attorney General of Challenge to Constitutionality of Statute.
      (a) Notice. It shall be the duty of a party who draws in question the constitutionality of any statute in any matter in an appellate court to which the Commonwealth or any officer thereof, acting in his official capacity, is not a party, upon the filing of the record, or as soon thereafter as the question is raised in the appellate court, to give immediate notice in writing to the Attorney General of Pennsylvania of the existence of the question; together with a copy of the pleadings or other portion of the record raising the issue, and to file proof of service of such notice.