author: WIEAND, Judge:

text:
    458 A.2d 976
    COMMONWEALTH of Pennsylvania ex rel. Annie P. NIXON v. Earl S. NIXON, Sr., Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 19, 1982.
    Filed March 31, 1983.

      Claire D. Newman, Philadelphia, for appellant.
    William F. Coyle, Philadelphia, for appellee.
    David Carl Mullins, Philadelphia, for Paul Nixon, participating party.
    Before WIEAND, BECK and MONTEMURO, JJ.
   WIEAND, Judge:

. The appeal in the instant case is from a multi-faceted order entered in a support action. Unfortunately, the record is inadequate to permit appellate review.

The facts which are ascertainable from the record disclose that Earl Nixon, Sr., appellant, and Annie P. Nixon, appellee, were married in Philadelphia in 1953. A son, Earl, Jr., was born on October 20, 1953. The marriage fell upon hard times, and the parties separated in 1957. On August 12, 1959, an agreed support order was entered which directed appellant to pay $60 bi-weekly for the support of his wife and son. Later in 1959, appellee moved with her son to Houston, Texas, where she continues to reside. Some time after Earl, Jr. had attained his 18th birthday, appellant unilaterally discontinued making payments of support. On December 13, 1967, appellee gave birth to a second son in Houston. She named him Paul Vance Nixon. She did not immediately ask the court to increase the order to include support for the new child. However, at some time thereafter, which cannot be ascertained precisely from the record, appellee filed a request for an increase in the monthly allotment which she had been receiving from the Veterans’ Administration. This appears to have been filed in 1971, for in January, 1972, appellant acknowledged in writing that Paul was his dependent. The record does not disclose, however, whether the request for increase was ever granted. In 1975, appellee filed a new request that the Veterans’ Administration find Paul to be appellant’s dependent and increase the allotment which appellee was receiving. Appellant contested appellee’s request and contended that Paul was not his child. The Veterans’ Administration, relying upon the presumption that a child born during wedlock is legitimate, increased appellee’s allotment. Appellant did not appeal.

On September 26, 1977, appellee filed a petition in the courts of Philadelphia to increase the order of support. When her counsel discovered that Paul had never been included in the order, he filed an amended petition to include him in the order of support. He also filed a petition to have arrearages under the prior order reduced to judgment. On June 8, 1978, after a hearing on the petition to reduce arrearages to judgment, the Honorable Gregory Lagakos entered an order granting appellant a credit against arrearages of $6,070 without prejudice to his right to claim additional credits.

The petition for increase was heard by the Honorable Edward E. Rosenberg, who took testimony on the issues of paternity, support and arrearages. Blood grouping tests demonstrated conclusively that appellant was not the natural father of Paul. Nevertheless, the court found that appellant was a parent by estoppel. The court also concluded that the results of the blood test could not be used to show that appellee had been guilty of adultery. Therefore, the following order was entered:

AND NOW, this 30th day of July 1979, after hearing and testimony, the following order is made:
(1) The husband shall be required to make payments through the Court for the support of his wife and minor child, Paul in the sum of $65.00 a week thereby amending the order of August 12, 1959. The said order for support shall be allocated as follows:
(a) Forty-Five dollars a week for the support of Paul (b) Twenty dollars a week for the support of the wife.
(2) The Court finds that the father is entitled to credits on account of the arrears on the support order for direct payments made to the mother which included support for the child, Paul. The Court hereby allows the father total credits in the amount of Three Thousand Two Hundred and Thirty-Five Dollars ($3,235.) against the outstanding arrears on the order.
(3) The Petition to Reduce Arrears to Judgment is granted, after due credit for direct payments noted in Paragraph # 2, is given.
By the Court,
E. Rosenberg, J.

The court made no findings of fact, and the record does not disclose how the amount of the credit was determined. A notice of appeal^ was filed on August 29, 1979; and on August 31, 1979, pursuant to Pa.R.A.P. 1925(b), appellant filed a concise statement of matters complained of on appeal. An opinion was filed by the hearing court on November 20, 1981. See: Nixon v. Nixon, 6 Phila. 373 (1981).

Appellant asserts as error (1) the hearing court’s determination that he was estopped from denying paternity; (2) the hearing court’s refusal to credit the amount of veterans’ benefits received by Mrs. Nixon against the arrearages on the 1959 support order; and (3) the court’s refusal to consider the blood grouping tests, which established that appellant was not the father of Paul Vance Nixon, as evidence of adultery by Mrs. Nixon. He also contends that the support order was excessive and that there was insufficient evidence to establish that Mrs. Nixon was unable to work because of disability.

Despite the order granting appellee’s petition for judgment, no judgment has ever been entered on the docket. In the absence of a judgment, this Court lacks jurisdiction to hear an appeal from this portion of the order. “A lower court’s direction to enter a specified order, unaccompanied by actual entry of the specified order on the docket, is interlocutory and not appealable and must be reduced to judgment and docketed before an appeal can be taken.” Friedman v. Kasser, 293 Pa.Super. 294, 295, 438 A.2d 1001, 1002 (1981). Accord: Hartigan v. Clark, 401 Pa. 594, 602, 165 A.2d 647, 651 (1960); Coren v. DiDomenico, 291 Pa.Super. 331, 332-333 & n. 2, 435 A.2d 1252, 1253 & n. 2 (1981); Crawford v. Manhattan Life Insurance Company of New York, 207 Pa.Super. 161, 215 A.2d 299 (1965); Pa.R.A.P. 301(c). “ ‘Such an order does not become appealable until, “on praecipe of any party,” Pa.R.A.P. 301(d), it is “reduced to judgment and docketed,” Pa.R.A.P. 301(c).’ ” Coren v. DiDomenico, supra 291 Pa.Super. at 332-333, 435 A.2d at 1253, quoting Unterberger v. Life Assurance Company of Pennsylvania, 286 Pa.Super. 469, 470, 429 A.2d 34, 35 (1981). Accord: Whitfield v. Farrior, 291 Pa.Super. 220, 221, 435 A.2d 877, 878 (1981); Karpe v. Borough of Stroudsburg, 290 Pa.Super. 559, 561, 434 A.2d 1292, 1293 (1981); Gadbois v. Leb-Co Builders, Inc., 290 Pa.Super. 523, 525, 434 A.2d 1267, 1268 (1981). The requirement that judgment be docketed is jurisdictional and may be raised sua sponte. Davanzo v. Finelli, 293 Pa.Super. 70, 72, 437 A.2d 995, 996 (1981); Karpe v. Borough of Stroudsburg, supra 290 Pa.Super. at 561, 434 A.2d at 1293; Lashner v. Redevelopment Authority of the City of Philadelphia, 286 Pa.Super. 549, 551 n. 1, 429 A.2d 659, 660 n. 1 (1981); Penstan Supply, Inc. v. Hay, 283 Pa.Super. 558, 560, 424 A.2d 950, 951 (1981).

Appellant’s further arguments that the trial court erroneously ruled that he was estopped from denying paternity of Paul, that results of the blood grouping tests were incompetent to show appellee’s adultery, and that appellee was entitled to support in the amount ordered, were not raised in the trial court via exceptions to the order of July 30, 1979.

Failure to file exceptions to a support order entered between June 27, 1978 and July 23, 1981 has been held to be a waiver of all objections. See: Commonwealth ex rel. White v. White, 303 Pa.Super. 329, 449 A.2d 712 (1982); Bickley v. Bickley, 301 Pa.Super. 396, 399, 447 A.2d 1025, 1027 (1982); Commonwealth v. Bankert, 295 Pa.Super. 423, 441 A.2d 1304 (1982); Overs v. Overs, 294 Pa.Super. 191, 192 n. 1, 439 A.2d 815, 816 n. 1 (1982). The duration of the procedural rule requiring exceptions to orders of support has been short. During its brief life it caused both confusion and mischief. Fortunately, it has now been abrogated by the Supreme Court’s adoption of a contrary Rule of Civil Procedure.

Prior to June 27, 1978, the law was clear. In Commonwealth v. McAlaine, 193 Pa.Super. 27, 163 A.2d 711 (1960), this Court had held specifically that an appeal must be taken within the time allowed from the order of support, saying “ ‘[i]t has never been the practice to have such judgment reviewed by the court en banc before taking an appeal____’” Id., 193 Pa.Superior at 29, 163 A.2d at 713 quoting Pittsburgh v. Ruffner, 134 Pa.Super. 192, 197, 4 A.2d 224, 226 (1938). On April 28, 1978, the legislature caused Section 5 of the Pennsylvania Civil Procedural Support Law of July 13, 1953, P.L. 431, No. 95, to be amended by the Act of April 28, 1978, P.L. 106, No. 46, formerly 62 P.S. § 2043.35(f), to provide as follows:

“An action commenced under this act shall be a civil action in accordance with the Rules of Civil Procedure. Where the paternity of a child born out of wedlock is disputed, the determination of paternity shall be by the court without a jury unless either party demands trial by jury. The trial, whether or not a trial by jury is demanded, shall be a civil action and there shall be no right to a criminal trial on the issue of paternity. The burden of proof shall be by a preponderance of the evidence.”

At the time of this amendment, rules of civil procedure had not been adopted for specific application to support actions. Nevertheless, in Paul v. Paul, 281 Pa.Super. 202, 421 A.2d 1219 (1980), a panel of this Court concluded, “there is no question but that exceptions must be filed to a support order in order to preserve objections for appeal.” Id., 281 Pa.Superior at 210 n. 11, 421 A.2d at 1223 n. 11.

Rules of Civil Procedure in actions for support were adopted by the Supreme Court on April 23, 1981 and became effective on July 22, 1981. They clearly overruled Paul v. Paul, supra, and provided that exceptions are not to be filed from a final support order. See: Pa.R.C.P. 1910.ll(k) and Pa.R.C.P. 1910.12(g). However, in claims involving paternity a different procedure is to be followed. Pa.R.C.P. 1910.15 follows the procedure previously adopted by Pa.R.C.P. 1920.52 for paternity actions joined with an action for divorce. It provides, inter alia, that where a nonjury trial has resulted in a finding of paternity, the defendant may file exceptions thereto. If the exceptions are dismissed, the court is then required to enter an interlocutory order finding paternity. Pa.R.C.P. 1910.15(d)(2). This order is not an appealable order. Pa.R.C.P. 1910.15(f). See also: Commonwealth ex rel. Wright v. Lacy, 291 Pa.Super. 185, 435 A.2d 630 (1981). After a final finding of paternity has been made, it is followed by proceedings to determine the amount of the final support order. Pa.R.C.P. 1910.15(e). It is from this final support order, to which exceptions are not permitted, that the appeal must be taken. Pa.R.C.P. 1910.15(f). Such an appeal brings to the Superior Court for review not only the amount of the support order but also the proceedings to determine paternity.

The order from which the instant appeal was taken was entered on July 30, 1979. At that time, Paul v. Paul, supra, had not been decided, but the Act of April 28, 1978 had been adopted. After this appeal was filed, the trial court did not file its statement of reasons, as required by Pa.R.A.P. 1925(a), until November 20, 1981.

The order of support was final and not interlocutory, for by directing appellant to pay $65 per week for the support of a wife and child, the order decided all issues pending between the parties and ended the litigation. See, e.g. Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978); Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 404, 319 A.2d 677, 678 (1974); Gerber v. Weinstock, 308 Pa.Super. 11, 14, 453 A.2d 1043, 1045 (1982); Foulke v. Lavelle, 308 Pa.Super. 131, 135, 454 A.2d 56, 58 (1982); Bracken v. Bracken, 294 Pa.Super. 371, 373, 439 A.2d 1247, 1247-1248 (1982); Tunstall v. Penn Federal Savings and Loan Association, 287 Pa.Super. 511, 514, 430 A.2d 1007, 1009 (1981); Mitchell v. Center City Cadillac, 287 Pa.Super. 350, 353, 430 A.2d 321, 322 (1981). Therefore, an appeal was proper.

15] The distinction between a waiver of objections by failing to file exceptions and the lack of a final order is an important one, for it determines not only the jurisdiction of this Court but also the proper disposition of the appeal. Where this Court determines that all objections to an order have been waived by failure to file exceptions, we must affirm the order of the trial court. See: Estate v. Kotz, 486 Pa. 444, 406 A.2d 524 (1979); Commonwealth ex rel. White v. White, supra 303 Pa.Super. at 331, 449 A.2d at 714; In re Wilson, 303 Pa.Super. 326, 449 A.2d 711 (1982); Commonwealth v. Bankert, supra; Knisely v. Knisely, 295 Pa.Super. 240, 441 A.2d 438 (1982); Litt v. Rolling Hill Hospital, 293 Pa.Super. 97, 98 n. 1, 437 A.2d 1008, 1009 n. 1 (1981); Pa.R.C.P. 1038(d). However, where a premature appeal has been taken, i.e., where an appeal has been filed from an interlocutory and non-appealable order, we are required to quash the appeal, for we have no jurisdiction to entertain it. See: Rodgers v. Yodock, 309 Pa.Super. 154, 454 A.2d 1129 (1983); R.B. Equipment Company v. Williams, Shields, Snyder & Goas, 304 Pa.Super. 31, 450 A.2d 85 (1982); Miller v. Jackson, 299 Pa.Super. 86, 89, 445 A.2d 160, 161-162 (1982); Swift v. Milner, 296 Pa.Super. 463, 465-466, 442 A.2d 1144, 1145-1146 (1982); Mitchell v. Center City Cadillac, supra 287 Pa.Super. at 353-354, 430 A.2d at 322; Hall v. Lee, 285 Pa.Super. 542, 544, 428 A.2d 178, 179 (1981). See also: 42 Pa.C.S. § 742.

The failure to file exceptions in the instant case did not affect the finality of the order. It was not a jurisdictional defect. However, the failure to file exceptions did constitute a waiver and failed to preserve any issues for appellate review. See: Estate of Kotz, supra 486 Pa. at 447, 406 A.2d at 526; Commonwealth ex rel. White v. White, supra 303 Pa.Super. at 331, 449 A.2d at 714; Commonwealth v. Bankert, supra; Overs v. Overs, supra 294 Pa.Super. at 192 n. 1, 439 A.2d at 816 n. 1. See also: Canada Dry Bottling Co. v. Mertz, 264 Pa.Super. 480, 484, 400 A.2d 186, 188 (1979).

Where there has been a failure to file exceptions, this Court may, where the interests of justice and fairness require it, remand for the filing of exceptions nunc pro tunc. See: Jones v. State Automobile Insurance Association, 309 Pa.Super. 477, 455 A.2d 710 (1983). This is consistent with the provisions of Pa.R.C.P. 126 which authorize a court at every stage of a civil action to disregard an error or defect of procedure if it “does not affect the substantial rights of the parties.” Pa.R.C.P. 126 “not only expresses the reasons why our rules are to be liberally construed—to ensure that justice is accorded the parties to a lawsuit—but also permits us to disregard procedural errors which do not affect substantial rights.” Pomerantz v. Goldstein, 479 Pa. 175, 179, 387 A.2d 1280, 1282 (1978). See also: Esso Standard Oil Co. v. Taylor, 399 Pa. 324, 329, 159 A.2d 692, 695 (1960); McKay v. Beatty, 348 Pa. 286, 286-287, 35 A.2d 264, 265 (1944); Haney v. Sabia, 59 Pa.Cmwlth. 123, 127, 428 A.2d 1041, 1043 (1981); Lewis v. Erie Insurance Exchange, 281 Pa.Super. 193, 199, 421 A.2d 1214, 1217 (1980); Briga v. Ken-Tuck Signs, Inc., 279 Pa.Super. 537, 538-539, 421 A.2d 329, 330 (1980); General Mills, Inc. v. Snavely, 203 Pa.Super. 162, 167, 199 A.2d 540, 543 (1964). “[Tjhere is abundant authority in support of the view that rules of court are but a means to accomplish the ends of justice, and that the court has the power to modify, suspend, or rescind its own rules whenever justice requires it and no party is prejudiced thereby.” Werts v. Luzerne Borough Authority, 15 Pa.Cmwlth. 631, 634, 329 A.2d 335, 336 (1974). See also: Pa.R.A.P. 105; Pa.R.C.P. 248.

Thus, “[i]n certain cases, justice may require that courts permit litigants an opportunity to mold their positions to meet changes in or clarification of the law that occur during the pendency of appellate proceedings.” Jones v. State Automobile Insurance Association, supra 309 Pa. Super. at 483, 455 A.2d at 713 (emphasis supplied). The appellant in Jones had commenced an action for no-fault benefits by petition and rule prior to this Court’s decision in Floczak v. National Mutual Insurance Company, 289 Pa.Super. 438, 433 A.2d 885 (1981). The petition was dismissed and appellant filed an appeal in this Court without first filing exceptions to the order in the court below. This Court, recognizing the considerable confusion that existed prior to the decision in Floczak and the absence of any express rule of civil procedure requiring exceptions to be filed to an order dismissing a petition, remanded the case for the filing of exceptions nunc pro tunc. Indeed, it has always been within the discretion of a court “to allow exceptions under Rule 1038(d) to be filed out of time in a case where the particular circumstances indicate that there are good and sufficient reasons for so doing.” E.J. McAleer & Co., Inc. v. Iceland Products, Inc., 475 Pa. 610, 614, 381 A.2d 441, 443 (1977) (footnote omitted). Accord: Builders of Sanitary Sewers, Inc. v. Tamaqua Borough Authority, 307 Pa.Super. 459, 462, 453 A.2d 674, 676 (1982). Cf. Stokes v. Thiemann, 296 Pa.Super. 112, 442 A.2d 322 (1982).

We are able to discern no valid reason for refusing to apply the rationale of these precedents to the instant case. On July 30, 1979, when the final support order was entered, there had been no judicial pronouncement which specifically required the filing of exceptions to a final order of support. Moreover, prior decisions had held unequivocally that proper practice did not permit the filing of exceptions to a support order before taking an appeal therefrom. Commonwealth v. McAlaine, supra. The opinion in Paul v. Paul, supra, was not filed until September 19, 1980, more than a year after the order appealed from in the instant case. Whether Paul v. Paul, supra, changed procedural law or merely interpreted the Act of April 28, 1978 may be left for future scholars to debate. In fact, it was the first judicial pronouncement that exceptions would be required before appeals would be accepted from support orders. It was a procedural requirement which lasted less than three years before it was abrogated expressly by Supreme Court rule.

The appeal in the instant case was filed at least a year prior to the Paul decision. It has raised issues of difficulty and complexity. To refuse to hear it is to foreclose forever appellate review of an order which requires appellant to support a son who, according to the evidence, is not his and a wife who, by deduction from the evidence, has been guilty of adultery. One can imagine very few situations in which fairness and justice cry out more loudly for leave to file exceptions nunc pro tunc than the facts of the instant case.

Therefore, the case is remanded to the trial court to permit appellant, within ten days after notice of the filing of this decision, to file exceptions nunc pro tunc to the support order of July 30, 1979. Jurisdiction is not retained. The appeal from the order directing that judgment be entered for arrearages is quashed.

      . The trial court made no finding, and the record does not enable us to ascertain precisely when appellant stopped paying the order.

      . No transcript of these hearings is included in the record before this court. It appears, however, that the credit was allowed in recognition of Earl, Jr.’s attaining majority.

      . Rule 301(c) of the Pennsylvania Rules of Appellate Procedure provides:

        “A direction by the lower court that a specified judgment, sentence or other order shall be entered, unaccompanied by actual entry of the specified order in the docket, or a direction that a verdict of a jury be recorded or entered, or an order denying a motion for a new trial, does not constitute an appealable order. Any such order shall be reduced to judgment and docketed before an appeal is taken.” (Emphasis supplied.)

      . The entry of judgment will not remedy the inadequate record which exists in this case. An order remitting arrearages or granting credit must be based upon evidence and findings which will enable a reviewing court to determine the amount, source and reasons for credits given or arrearages remitted. Where a record is inadequate to permit appellate review this Court will remand and may require that an additional hearing be held. See and compare: Commonwealth v. Doranzo, 309 Pa.Super. 473, 455 A.2d 708 (1983); Seidel v. Great Factory Store, 291 Pa.Super. 255, 259, 435 A.2d 896, 898 (1981); Jackson v. Richards 5 & 10 Inc., 289 Pa.Super. 445, 459, 433 A.2d 888, 896 (1981); Mansfield v. Lopez, 288 Pa.Super. 567, 432 A.2d 1016 (1981); Witherow v. Witherow, 288 Pa.Super. 519, 521 n. 1, 432 A.2d 634, 635 n. 1 (1981); Commonwealth ex rel. Swank v. Swank, 266 Pa.Super. 94, 403 A.2d 109 (1979). It would not be amiss for the parties to correct the inadequacy of the present record before any further appeal is taken.

      . This section was repealed by 42 Pa.C.S. § 20002(a), but 42 Pa.C.S. § 6704(f) is a substantial re-enactment thereof.

      . Pa.R.A.P. 105 provides:
      (a) Liberal construction and modification of rules. These rules shall be liberally construed to secure the just, speedy and inexpensive determination of every matter to which they are applicable. In the interest of expediting decision, or for other good cause shown, an appellate court may, except as otherwise provided in Subdivision (b) of this rule, disregard the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction.
      (b) Enlargement of time. An appellate court for good cause shown may upon application enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time; but the court may not enlarge the time for filing a notice of appeal, a petition for allowance of appeal, a petition for permission to appeal, or a petition for review.

      . Pa.R.C.P. 248 provides:
      Rule 248. Modification of Time
      The time prescribed by any rule of civil procedure for the doing of any act may be extended or shortened by written agreement of the parties or by order of court.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    458 A.2d 983
    B.F. TATTERSON v. KOPPERS COMPANY, INC., a Corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1982.
    Filed March 31, 1983.

      John Edward Beard, III, Pittsburgh, for appellant.
    Michael J. Seymour, Pittsburgh, submitted a brief on behalf of appellee.
    Before CERCONE, President Judge, and SPAETH, CAVANAUGH, WICKERSHAM, BROSKY, BECK and JOHNSON, JJ.
   JOHNSON, Judge:

This appeal presents the question whether or not the exhaustion doctrine should be applied in this Commonwealth to disputes involving the administration of a company-sponsored retirement plan established under the Employment Retirement Income Security Act of 1974 (ERISA). Specifically, we here consider whether a former employee who claims he is not receiving the amount of retirement benefits to which he believes himself to be entitled under the employer’s retirement plan must appeal the denial of his request for further benefits to the employer’s pension committee before filing an action against the employer in the courts, when the claims procedure of the retirement plan provides that any person whose application is denied may file a request to the pension committee for a review of the decision, and where the claims procedure provides for review by the same company-controlled committee which initially denied the claim.

B.F. Tatterson, appellee, a retired salaried employee of defendant Koppers Company, Inc. [Koppers], brought this action in assumpsit to recover retirement benefits allegedly due him under Koppers’ retirement plan. Koppers filed preliminary objections arguing that the court of common pleas lacked subject matter jurisdiction over this controversy inasmuch as federal law requires the exhaustion of the remedies established by the plan before suit may be entertained. The trial court overruled Koppers' objection, and Koppers appealed to this court.

As explained hereinafter, we hold that the exhaustion doctrine applies in Pennsylvania to claims for benefits under employee benefit plans governed by ERISA and that the court of common pleas erred in assuming subject matter jurisdiction over this controversy. We therefore reverse the trial court’s order.

The Koppers retirement plan provides salaried employees of Koppers and its subsidiaries with retirement benefits based primarily upon the employee’s salary and years of service. The plan is funded by Koppers and is administered by a pension committee which consists of at least three officers, directors or employees of Koppers, appointed by the board of directors to serve at the board’s pleasure. The pension committee is concededly a named fiduciary within the meaning of section 402(a) of ERISA, 29 U.S.C. § 1102(a).

The Koppers plan provides the following claims procedure:

1. All applications for benefits under the Retirement Plan of Koppers Company, Inc. and subsidiaries For Salaried Employees (“Plan”) shall be filed with the Pension Committee.... Applications for benefits must be in writing on the forms prescribed by the Pension Committee and must be signed by the participant____ Each application shall be acted upon and approved or disapproved by the Pension Committee within 60 days following its receipt by the Company. In the event any application for benefits is denied, in whole or in part, the Pension Committee shall notify the applicant in writing of such denial and of his right to a review by the Pension Committee and shall set forth in a manner calculated to be understood by the applicant, specific reasons for such denial, specific references to pertinent plan provisions on which the denial is based, a description of any additional material or information necessary for the applicant to perfect his application, an explanation of why such material or information is necessary, and an explanation of the plan’s review procedure.
2. Any person ... whose application for benefits is denied in whole or in part may file a request to the Pension Committee for a review of the decision by submitting to the Pension Committee within one year after receiving written notice from the Pension Committee of the denial of his claim a written statement:
(a) Requesting a review of his application for benefits by the Pension Committee;
(b) Setting forth all of the grounds upon which the request for review is based and any facts in support thereof; and
(c) Setting forth any issues or comments which the applicant deems pertinent to his application.
The Pension Committee shall meet at least bi-monthly to consider requests for review of applications for benefits and shall act upon each application within 60 days after receipt of the applicant’s request for review.
3. The Pension Committee shall make a full and fair review of each such application____ On the basis of its review, the Pension Committee shall make an independent determination of the applicant’s eligibility for benefits under the plan. The decision of the Pension Committee on any application for benefits shall be final and conclusive upon all persons if supported by substantial evidence in the record.
4. In the event an application is denied in whole or in part, the Pension Committee shall give written notice of its decision to the applicant setting forth in a manner calculated to be understood by the applicant the specific reasons for such denial and specific references to the pertinent plan provisions on which its decision was based.
5. The Pension Committee shall give the plan participants notice of the specific address where claims and requests for review are to be filed.

The court of common pleas ruled that the word “may” in paragraph 2 gave the claimant the choice between appealing either to the committee or directly to the courts.

We shall consider first the statute which governs rights and obligations under private welfare and pension plans such as the Koppers plan. ERISA specifically provides that it applies to any employee benefit plan if the plan is established or maintained by any employer engaged in commerce or in any industry or activity affecting commerce. 29 U.S.C. § 1003(a)(1). ERISA also provides that it supersedes any and all state laws insofar as they may relate to any such employee benefit plan. 29 U.S.C. § 1144(a). ERISA provides further that a claims procedure be established within the structure of such benefit plans. 29 U.S.C. § 1133. And although ERISA authorizes civil actions in either federal or state court to recover benefits due, 29 U.S.C. § 1132(a), (e)(1), the courts in different jurisdictions, see infra, have required that plan claims procedures be exhausted before suit may be brought in the courts. The rationale for this requirement has been ably explained in an opinion by the United States Court of Appeals for the Ninth Circuit, in a case brought by a union member against the trustees of a union pension trust. In Amato v. Bernard, 618 F.2d 559 (9th Cir.1980), the court said:

It is true that the text of ERISA nowhere mentions the exhaustion doctrine. The question therefore may be raised as to whether Congress intended to grant the authority to the courts to apply that doctrine in suits arising under ERISA____ [W]e conclude from both the legislative history and the text of ERISA that Congress did intend to grant such authority to the courts, and that sound policy requires the application of the exhaustion doctrine in suits under the Act.
We note first that in enacting ERISA, Congress “intended that a body of Federal substantive law will be developed by the courts to deal with issues involving rights and obligations under private welfare and pension plans”____ Second, the legislative history of ERISA forges an explicit link between suits under ERISA and suits under section 301 of the LMRA____ [A]ll actions under ERISA to enforce benefit rights under a covered plan or to recover benefits under the plan, whether brought in federal or state courts, “are to be regarded as arising under the laws of the United States in similar fashion to those brought under section 301 of the Labor-Management Relations Act of 1947.” But the federal courts have long fashioned federal common law under § 301 of the LMRA ...; and part of that law has been that where administrative remedies are available they must usually be exhausted by an aggrieved party before his § 301 complaint will be heard____ The legislative history of ERISA thus clearly suggests that’ Congress intended to grant authority to the courts to apply the exhaustion requirement in suits arising under the Act.
Third, ERISA itself requires covered benefit plans to provide administrative remedies for persons whose claims for benefits have been denied____ It also permits the Secretary of Labor to prescribe regulations governing such administrative remedies, ... and the Secretary has done so____ [T]he institution of such administrative claim-resolution procedures was apparently intended by Congress to help reduce the number of frivolous lawsuits under ERISA; to promote the consistent treatment of claims for benefits; to provide a nonadversarial method of claims settlement; and to minimize the costs of claims settlement for all concerned. It would certainly be anomalous if the same good reasons that presumably led Congress and the Secretary to require covered plans to provide administrative remedies for aggrieved claimants did not lead the courts to see that those remedies are regularly used. Moreover, the trustees of covered benefit plans are granted broad fiduciary rights and responsibilities under ERISA, ... and implementation of the exhaustion requirement will enhance their ability to expertly and efficiently manage their funds by preventing premature judicial intervention in their decision-making processes. The text of ERISA and the policies underlying that text, far from suggesting that Congress intended to abrogate the exhaustion requirement in the case of suits under ERISA or that sound policy would counsel its abrogation by the courts, suggest just the opposite.
Finally, a primary reason for the exhaustion requirement, here as elsewhere, is that prior fully considered actions by pension plan trustees interpreting their plans and perhaps also further refining and defining the problem in given cases, may well assist the courts when they are called upon to resolve the controversies____
In sum, we conclude that the federal courts have the authority to enforce the exhaustion requirement in suits under ERISA, and that as a matter of sound policy they should usually do so.

Amato v. Bernard, 618 F.2d at 566-68 (footnotes and citations omitted). See also Challenger v. Local Union No. 1 of the International Bridge, Structural and Ornamental Ironworkers, 619 F.2d 645 (7th Cir.1980); Kross v. Western Electric Co., Inc., 534 F.Supp. 251 (N.D.Ill.1982); Wolf v. National Shopmen Pension Fund, 512 F.Supp. 1182 (E.D.Pa.1981); Scheider v. United States Steel Corp., 486 F.Supp. 211 (W.D.Pa.1980); Lucas v. Warner & Swasey Co., 475 F.Supp. 1071 (E.D.Pa.1979); Taylor v. Bakery and Confectionary Union and Industry International Welfare Fund, 455 F.Supp. 816 (E.D.N.C.1978).

We see no reason why the courts of Pennsylvania should hold any differently. Indeed, assuming that the above rationale is the correct interpretation of Congressional intent, we have no choice, in view of the pre-emption language of section 514 of ERISA. We therefore adopt the rationale so clearly put forth by the court in Amato v. Bernard as the rationale for our holding that the exhaustion doctrine applies in Pennsylvania to claims for benefits under employee benefit plans governed by ERISA.

Against the backdrop of this case law we are presented with the argument that the word “may” appearing in paragraph 2 of the Koppers plan claims procedure gives a claimant the choice between exhausting the plan’s remedies or proceeding directly to court. The trial court found that the language did not make clear that the plan intended to require an applicant to request committee reconsideration as a prerequisite to court review.

We disagree. If the word “may” were replaced by “shall” or “must” or “should”, could this not mean that any person denied a pension had to request review whether he wished to or not? When the entire procedure is read, it is clear that it is telling the participant that he must submit his initial application in writing. If this is denied, the denial must also be in writing, and the claimant must be notified of his “right to a review by the Pension Committee.” Paragraph 2 then tells the participant that the way to request review, if he wants review, is to submit a written statement following certain guidelines. Paragraph 5 tells the participant that the pension committee will tell him where “claims and requests for review are to be filed.” In other words, the plan, as required by ERISA, 29 U.S.C. § 1133, tells the participant that he has the right to appeal to the committee if he wishes, and if he does so wish, how he is to proceed.

In view of the congressional command that claims procedures be provided for, 29 U.S.C. § 1133, and that the Koppers plan claims procedure appears to be in obedience to that command, we disagree with the trial court that the word “may” is to be interpreted as giving the claimant a choice between following the plan’s claims procedure or suing the plan in court. We believe that the interpretation which we have given of the word “may” is compatible with the general understanding in the different courts that claims procedures provided by ERISA plans must be exhausted before civil actions are brought in the courts. We do not believe that the use of the word “may” in the Koppers plan is intended, or should be permitted, to create an exception to the usual rule requiring exhaustion of plan procedure.

The trial court’s second reason for not requiring exhaustion of the plan’s procedures was that the pension committee, being controlled by Koppers’ board of directors, could not be expected to rule differently the second time, and that the judicial deference accorded to the decisions of independent bodies considering grievances and other labor disputes should not be accorded to the decisions of a company-controlled committee.

It is true that a participant claiming benefits under a plan need not exhaust the plan’s remedies where the effort to follow these procedures would be futile. Glover v. St. Louis-San Francisco Railway Co., 393 U.S. 324, 89 S.Ct. 548, 21 L.Ed.2d 519 (1969) (exhaustion of contractual or administrative remedies could be by-passed by black railwaymen alleging that racial discrimination by the union and the railroad caused denial of promotion and frustrated their attempts to present grievances to the union and to the railroad). A second exception is the situation where a claimant is wrongfully denied meaningful access to the plan’s procedures, Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) (employee who can prove that the union as bargaining agent breached its duty of fair representation, e.g., by not processing a grievance against the employer, may bring an action against the employer without exhausting grievance procedures).

The case before us does not fit into either of these exceptions. We decline to rule that review by a company-controlled committee is per se futile. The committee is statutorily bound as a fiduciary to discharge its duties solely in the interest of the participants and beneficiaries of the plan. 29 U.S.C. § 1104. The committee is also bound by the language of the plan to conduct a “full and fair review” of the claim and to make an “independent determination.” Paragraph 3. ERISA provides penalties, including personal liability, for breach of these fiduciary duties. 29 U.S.C. § 1109.

In the absence, therefore, of any factual allegations indicating that an attempt to seek review of the committee’s initial denial of benefits under the Kopper’s plan would be futile, we hold that participants in retirement plans who are claiming benefits under those plans must exhaust the claims procedure provided for in the plan as mandated by ERISA before bringing civil actions in our courts, and that neither the word “may” in the procedure, nor the fact that the pension committee serves at the pleasure of the board of directors, countermands this rule.

In his attempt to by-pass the plan’s review procedure, appellee argues that he is not seeking relief from the pension committee but from the corporation, in an action in assumpsit for breach of the corporation’s agreement to pay him a pension in an amount determined under the terms of the plan to a 36V2 year retired employee. He compares his situation to the situation in Shaw v. Westinghouse Electric Corp., 276 Pa.Super. 220, 419 A.2d 175 (1980). In Shaw, this court held that the court of common pleas did have jurisdiction over the claimant’s pension and disability benefits claims because the action was not a claim for benefits, but rather a dispute over his employment contract. The claimant was alleging that the corporation had paid him less salary and fewer bonuses than it had promised to pay and that as a result he was receiving fewer benefits under the plans than he would have received had he been paid as promised. This claim was an action only indirectly affecting the employee benefit plans and thus not governed by ERISA, and therefore not subject to the exhaustion of remedies doctrine.

The instant claim, however, contrary to appellee’s argument, relates directly to the Koppers plan. Although appellee claims to be suing Koppers for breach of contract, he asserts in his complaint:

4. That since his retirement Plaintiff has been receiving the sum of $534.43 each month from Defendant’s retirement plan plus cost of living increases.
5. That Plaintiff selected option one of the Defendant’s retirement plan and has calculated his retirement benefits based upon his years of service and salary and finds he should be receiving $909.02 per month plus cost of living increases....
6. That Plaintiff has made demand upon the Defendant to pay the proper amount under the terms of the plan which Defendant refuses to do in breach of the terms of the said plan.
7. That as a result of Defendant’s refusal the Plaintiff has lost to date the sum of $5,993.44 plus cost of living increases and continues to be damaged with each monthly payment.

This claim is precisely an action “to recover benefits due to him under the terms of [the] plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan,” 29 U.S.C. § 1132(a)(1)(B). The claim is therefore within the embrace of ERISA and to be pursued in adherence to the rule requiring exhaustion of the plan’s claims procedure. We view the Shaw case to be totally inapposite to appellee’s claim.

We note that the claims procedure in the Koppers plan requires that an appeal from the initial denial of benefits be submitted to the pension committee in writing within one year after receipt of notice by the claimant of the adverse decision. In this case appellee, in 1979, elected to file his suit in assumpsit rather than to file a written request with the pension committee for a review of that denial. At oral argument this court was advised by Koppers’ able counsel that the company would not seek to impose any limitation upon appellee’s right of appeal before the pension committee as a result of the delay occasioned by appellee’s premature attempt to seek judicial review.

The right of the appellee, B.F. Tatterson, to pursue his claim under the Koppers plan claims procedure shall remain the same as existed immediately prior to the filing of the complaint in the within case.

The order of the trial court is reversed with directions that the trial court dismiss the complaint for lack of subject matter jurisdiction.

      . 29 U.S.C. § 1001 et seq. (1976 & Supp.).

      . Appeal was taken pursuant to Section 1 of the Act of March 5, 1925, P.L. 23, 12 P.S. § 672, repealed by the Act of April 28, 1978, P.L. 202, No. 53, § 2(a), effective June 27, 1980.

      . Section 514, 29 U.S.C. § 1144, provides in pertinent part:
      § 1144. Other Laws
      Supersedure ...
      (a) Except as provided in subsection (b) of this section, the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title. This section shall take effect on January 1, 1975.

        See generally Lukus v. Westinghouse Electric Corp., 276 Pa.Super. 232, 241-59, 419 A.2d 431, 436-45 (1980), where this court, per Spaeth J., discussed the extent of the ERISA pre-emption language with respect to the Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 951 et seq.

      . Compare Pennsylvania Rule of Appellate Procedure 501, 42 Pa.C.S.A. (Pamp.1982):
      Rule 501. Any Aggrieved Party May Appeal
      Except where the right of appeal is enlarged by statute, any party who is aggrieved by an appealable order, or a fiduciary whose estate or trust is so aggrieved, may appeal therefrom.

      . Another part of the trial court’s rationale for its decision not to require exhaustion of the plan’s claims procedure was that the exhaustion doctrine means "inherent delays.” On the contrary, the Koppers plan contains specific limitations on the time the committee may take to render a decision. And slowness of the procedure is not one of the accepted escape hatches out of the exhaustion doctrine unless, as in the Vaca or Glover cases, infra, there is a deliberate blocking of the claimant’s access to grievance or claim review procedures.


author: MONTEMURO, Judge:

text:
    458 A.2d 989
    In re ESTATE OF Joseph F. GEORGIANA, Deceased. Appeal of Joseph F. GEORGIANA, Jr., and Lawrence S. Georgiana.
    Superior Court of Pennsylvania.
    Argued May 20, 1982.
    Filed March 31, 1983.
    Petition for Allowance of Appeal Granted Sept. 27, 1983.

      Roslyn M. Litman, Pittsburgh, for appellants.
    Ira B. Coldren, Jr., Uniontown, for Gallatin Bank, participating party.
    Carl W. Brueck, Jr., Pittsburgh, for Campbell, participating party.
    Before ROWLEY, MONTEMURO and VAN der VOORT, JJ.
   MONTEMURO, Judge:

On August 11, 1981, the Orphans Court of Fayette County (per the Honorable Charles G. Sweet, President Judge, sitting by special designation) entered an order dismissing exceptions to a previous order denying a petition for removal of executor and appointment of a successor. The petition had been filed by Joseph F. Georgiana, Jr. and Lawrence S. Georgiana, residual legatees and the appellants herein, seeking removal óf Gallatin National Bank as executor of the estate of their deceased father, Joseph F. Georgiana, Sr. The appellants contended that the executor bank should be removed because of multiple breaches of its fiduciary duty, including: (1) loss, waste and mismanagement of estate assets; (2) refusal to collect estate assets; (3) engaging in profitable self-dealing; (4) hostility to certain of the residual legatees; and (5) general incompetence. The lower court found there was insufficient “misconduct or ineptitude or hostility to justify the severe action of removing the corporate fiduciary.”

Before addressing the merits of the appeal we find it necessary to resolve a preliminary question of jurisdiction raised by appellee, Gallatin National Bank [Bank]. The Bank contends that the present appeal should be quashed as interlocutory because the order of the court below was not a final order.

In Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978), our Supreme Court succinctly set forth the standard by which Pennsylvania appellate courts determine whether or not an appeal is from a final order.

It is, of course, well settled that an appeal will lie only from a final order unless otherwise permitted by statute. See, e.g., T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977); Caplan v. Keystone Weaving Mill, 431 Pa. 407, 246 A.2d 384 (1968); Stadler v. Mt. Oliver Borough, 373 Pa. 316, 95 A.2d 776 (1953). A final order is one which usually ends the litigation, or alternatively, disposes of the entire case. Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 404, 319 A.2d 677, 678 (1974). In determining what constitutes a final order we have followed the approach of Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), in that we look to “a practical rather than technical construction” of an order. In Cohen, the Supreme Court of the United States carved out an exception to the final judgment rule for situations where postponement of appeal until after final judgment might result in irreparable loss of the right asserted. Under Cohen, an order is considered final and appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost. Id. at 546, 59 S.Ct. at 1226, 93 L.Ed. at 536.

Id., 483 Pa. at 72-73, 394 A.2d 544-545.

In the present case, the order of the court below did not “[end] the litigation, or alternatively, [dispose] of the entire case.” There has been no final account of distribution of the estate. If we were required to be strictly technical we would have to find that the lower court’s order was not final. However, Pugar recognizes the exception carved out by the United States Supreme Court in Cohen v. Beneficial Industrial Loan Corporation, supra, for that small class of decisions “which fully determines claims of rights separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Industrial Loan Corporation, supra 337 U.S. at 546, 69 S.Ct. at 1226, 93 L.Ed. at 1536.

Applying the Cohen analysis herein leads us to the conclusion that an order granting or denying removal of an executor is a final order which may be appealed to this court. First, it is an order which finally determines a claimed right; i.e. the right of a beneficiary or beneficiaries to a competent and trustworthy executor who will carefully and faithfully carry out the intentions of the testator and also use its best efforts to maximize and fairly distribute the estate to the devisees and legatees. By denying the petition the lower court has made a determination that this right has not been infringed, just as an order granting the petition would, of course, indicate an opposite conclusion. Such a determination is not the end of the litigation since it is part of the administration, accounting and distribution of the decedent’s estate. It is, however, a separate and collateral order in that the executor, while performing an important administrative and fiduciary function, can be replaced by another party. The administration of the estate, while delayed, would continue.

Second, the right is one which is too important to be denied review. Neither party contends anything to the contrary. When the assets of an estate are subject to possible harm or diminution because of acts or omissions of an executor the courts are the appropriate forum to decide what action is necessary to remedy that harm. While the trial courts, because of the experience acquired in handling estate cases, are eminently capable of deciding questions of removal, such questions involve serious issues bearing upon the property in question, the reputation of the executor and also the interest of the state in assuring orderly administration and in properly ascertaining and collecting revenues. We find these issues important enough to merit appellate review.

Third, in many, if not all, cases the right will be irreparably lost if review is deferred. Appellee Bank argues that any loss due to its acts or omissions can be remedied by levying a surcharge pursuant to 20 Pa.C.S.A. § 3501.1 and thus immediate review is not necessary. While this may be true in the case of a solvent corporate fiduciary, it may not be true where the executor is an insolvent or financially unstable corporation, or an individual. In the latter event, deferral of review may mean that the assets of the estate will be dissipated or destroyed in the interim. Thus, the right would be lost because surcharge would be nothing more than a hollow remedy.

We find that an order denying a petition for removal of an executor is a final order proper for appellate review. We note that appellate courts in Pennsylvania have decided appeals from orders denying petitions for removal, but without addressing the jurisdictional issue. In Re Estate of Pitone, 489 Pa. 60, 413 A.2d 1012 (1980); Estate of Hamill, 487 Pa. 592, 410 A.2d 770 (1980); Estate of Halper, 487 Pa. 408, 409 A.2d 415 (1980); cf. In Re Estate of Croessant, 482 Pa. 188, 393 A.2d 443 (1978) (citing In Re Crawford’s Estate, 340 Pa. 187, 16 A.2d 521 (1940) (lower court order removing trustee subject to appellate review)). The action taken by the courts in these cases clearly indicates that the question involved is of sufficient importance to necessitate immediate appellate review.

Before discussing the merits of the case, a recitation of some of the relevant facts would be appropriate. Joseph F. Georgiana died leaving a will which divided his estate equally between his sons, Joseph F. Georgiana, Jr. and Lawrence S. Georgiana, and a business associate, Loretta Campbell. Appellee Gallatin National Bank was named as executor. The decedent’s widow, Barbara Georgiana, gave notice of her right of election pursuant to 20 Pa.C.S.A. § 2508(a). She eventually settled her claim against the estate for $200,000.00.

The decedent’s estate consisted primarily of stock in four closely held corporations, including: (1) New Venetian Corporation, in which the decedent held a majority interest and Loretta Campbell held a minority interest, through which they operated the Venetian Restaurant and the Gourmet Shoppe; (2) Georgiana Realty Co., in which the decedent held a fifty (50%) per cent interest and his brother, Samuel Georgiana held a fifty (50%) per cent interest, through which they owned and managed real estate in the Union-town area; (3) Fayette Frozen Foods, in which the decedent held a minority interest, decedent’s sons held a minority interest and decedent’s brother held a majority interest, a wholesale food distributor; and (4) Fayette Leasing Co., principally owned by decedent’s sons, with decedent holding a minority interest, which leased vehicles to Fayette Frozen Foods.

In the early stages of administration the parties proceeded relatively amicably. They agreed that Loretta Campbell would purchase from the estate the decedent’s stock in New Venetian Corporation, and that the decedent’s sons would likewise purchase the stock in Fayette Frozen Foods. The sale of Fayette Frozen Foods was, in fact, consumated, but the sale of New Venetian Corporation was not, because of a fire which destroyed the restaurant, the corporation’s principal asset.

Relations between the parties quickly deteriorated. Charges and countercharges were exchanged which led to legal proceedings and inevitably delayed the administration of the estate. The charges most pertinent to the present appeal can be delineated into three categories. One, that the appellee Bank was guilty of waste, mismanagement and ineptitude in collecting and preserving the assets of the estate. Two, that the appellee Bank favored the interests of Loretta Campbell over the interests of the other beneficiaries (decedent’s sons), and over the interests of the estate itself. Three, that the appellee Bank engaged in profitable self-dealing.

In the first category, appellants allege that the Bank failed or refused to collect assets of the estate including a Forty-Seven Thousand ($47,000.00) Dollar debt owed to decedent by New Venetian Corporation, Five Hundred (500) Shares of Stock of the New Venetian Corporation claimed to be a gift from the decedent by Loretta Campbell, a checking account, called the “Venetian Restaurant—Banquet Account” containing over Eighty-Three Thousand ($83,000.00) Dollars, and Fifty-Five Thousand ($55,000.00) Dollars in Municipal Bonds taken by Loretta Campbell from a safety deposit box after the death of the decedent. Appellants also allege that the Bank negligently allowed an estate asset (Gourmet Shoppe) to fall into disrepair, and that they negligently allowed Loretta Campbell to use over Twenty-Eight Thousand ($28,000.00) Dollars of New Venetian Corporation funds for her personal use. This amount was over and above the Banquet Account.

The appellants’ basis for their allegations of favoritism should be obvious from the above recitation. However, they allege further that the appellee Bank favored Loretta Campbell in judicial proceedings during the course of the administration. They charge that, although the Bank filed petitions to recover assets of estate (for the Banquet Account, the Municipal Bonds, and other funds of the New Venetian Corporation), it did so as a mere perfunctory gesture to minimally accommodate a court order, and that the Bank took no further action on the petitions. They further charge that the Bank opposed their (decedent’s sons’) petition to take distribution in kind merely to harass them.

Finally, they charge the executor misrepresented to the court at a hearing on December 17,1979 that a codicil of the decedent’s will was never delivered to the executor and was invalid.

The third category of alleged misconduct is that the Bank improperly engaged in profitable self-dealing. The charge stems from loans in the amount of $175,000.00, made by the Bank to the estate to pay off tax liabilities and other debts at high interest rates (12%-19.5%). At the same time the Bank had invested in its own certificates of deposit Two Hundred and Twenty Thousand ($220,000.00), belonging to the estate, which was earning a lower rate of interest (8%-15.5%). Appellants allege that the Bank’s profits from these transactions exceeded Ten Thousand ($10,000.00) Dollars. They further allege that the Bank was negligent in allowing the insurance proceeds to remain uninvested for over two months.

While by no means complete the above is representative of the complaints which the appellants have against the executor, and is the bulwark of their grounds for seeking its removal from its fiduciary position.

The grounds for removal of a personal representative set forth in the P.E.F. Code, Act of June 30, 1972, P.L. 508, No. 164 § 2, eff. July 1, 1972, 20 Pa.C.S.A. § 3182:

§ 3182. Grounds for removal
The court shall have exclusive power to remove a personal representative when he:
(1) is wasting or mismanaging the estate, is or is likely to become insolvent, or has failed to perform any duty imposed by law; or
(2) has been adjudged a lunatic, a habitual drunkard, or a weakminded person; or
(3) has become incompetent to discharge the duties of his office because of sickness or physical or mental incapacity and his incompetency is likely to continue to the injury of the estate; or
(4) has removed from the Commonwealth or has ceased to have known place of residence therein, without furnishing such security or additional security as the court shall direct; or
(5) when, for any other reason, the interests of the estate are likely to be jeopardized by his continuance in office.

This provision was construed by our Supreme Court in In Re Estate of Pitone, 489 Pa. 60, 413 A.2d 1012 (1980):

... Removal of the personal representative is largely within the discretion of the Orphans’ Court. Thus our present inquiry is whether the court below abused its discretion. Beichner Estate, 432 Pa. 150, 247 A.2d 779 (1968).
The removal of a fiduciary is a drastic action which should be taken only when the estate is endangered and intervention is necessary to protect the property of the estate. Scientific Living, Inc. v. Hohensee, 440 Pa. 280, 295, 270 A.2d 216, 224 (1970). Particularly drastic is the removal of the executrix chosen by the testator, since her appointment represents an expression of trust and confidence in her. In Re Estate of Lux, 450 Pa. 256, 389 A.2d 1053 (1978).

Id., 489 Pa. at 68, 413 A.2d at 1016.

Under the above standard we find that the court below has not abused its discretion. Several factors influence our decision. First, if we were to remove the Bank as executor at this point it would necessitate the appointment of a successor. It would take several months for a successor to adequately familiarize himself with the voluminous records of the decedent, his corporations and of the judicial proceedings to date. Even after assimilating this material, it would take time to devise and implement the proper strategy to wind up the estate. We find such a delay to be unacceptable, especially in light of the already lengthy proceedings which have consumed more than six years.

Second, many of the appellants’ allegations are unsupported in the record. We are unable to review that which has not been decided or that which is mere allegation and which has not been subjected to the test of an evidentiary hearing and judicial determination. The record before us, including the transcript of the hearing on the removal petition, the transcript of the hearing on the petition to take distribution in kind, the numerous depositions, petitions and other documents reveal instances of action and inaction by the Bank. .Yet we do not think they rise to a level which mandates removal of the executor. At this time there are no less than four petitions pending before the lower court, filed by the executor, seeking recovery of estate assets. In addition, there are numerous exceptions to the Executor’s Partial Account filed by both the appellants and by Lorretta Campbell. These matters have not been decided by the court below. While so many unproven and unresolved matters are pending, the drastic remedy of removal of the executor would be completely inappropriate. We find no abuse of discretion, and therefore affirm the order of the court below.

Order affirmed.

       Section 302 of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, 17 P.S. § 211.302, since superseded by Judicial Code § 742 (effective June 27, 1978), provides:
      "The Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas, regardless of the nature of the controversy or the amount involved, except such classes of appeals as are by any provision of this chapter within the exclusive jurisdiction of the Supreme Court or the Commonwealth Court.” (Emphasis supplied)

      . We do not intimate in any way that the Executor herein is insolvent or financially unstable. We are speaking only in the general sense.

      . In 1978, the Gourmet Shoppe ceased operations and was closed. There was no inspection of the premises for a period in excess of six months. Subsequent inspection revealed interior damage from lack of heat and ventilation. Repairs cost $3230.00, which was paid from the assets of the New Venetian Corporation.

      . On September 12, 1979, the lower court, per the Honorable Fred C. Adams, ordered, inter alia, the executor to investigate and recover assets of the estate which may not have been brought into the estate.

      . The amount in question represented the proceeds recovered from the insurance company after the fire which destroyed the Venetian Restaurant.


author: HOFFMAN, Judge:

text:
    458 A.2d 994
    COMMONWEALTH of Pennsylvania v. Edward Miller QUARTMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 18, 1983.
    Filed March 31, 1983.
    Petition for Allowance of Appeal Denied July 20, 1983.

      James Robert Protasio, Assistant Public Defender, Williamsport, for appellant.
    Kenneth D. Brown, District Attorney, Williamsport, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY, and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that he was denied his constitutional right to confront witnesses and that the lower court erred in failing to charge the jury that appellant was prohibited by the Rape Shield Law from introducing evidence of the victim’s prior sexual relations. We find no merit in these contentions and, accordingly, affirm the judgment of sentence.

Shortly after an encounter with a fellow inmate at Lycoming County prison, appellant was charged with rape, involuntary deviate sexual intercourse, simple assault and terroristic threats. At a pre-trial hearing on July 14, 1981, the lower court, pursuant to the Pennsylvania Rape Shield Act, found appellant’s proposed evidence of the victim’s-prior sexual relations with other inmates inadmissible for the purposes of impeaching the victim’s credibility and implying consent between the victim and appellant. On July 31, 1981, a jury found appellant guilty on all counts. After the denial of post-verdict motions, appellant was sentenced to a term of three-to-six years imprisonment. This appeal followed.

Appellant contends first that the lower court’s excluding evidence of the victim’s prior sexual relations constituted a denial of his Sixth amendment right to confrontation, an issue of first impression in this Commonwealth. The Pennsylvania Rape Shield Law provides that

Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.

18 Pa.C.S.A. § 3104(a). Rape Shield laws have evolved in many jurisdictions from criticism of a criminal justice system that is “overly solicitious in protecting the interests of the alleged ... perpetrator, to the virtual exclusion of the [victim’s] sensibilities and legal rights.” Commonwealth v. Strube, 274 Pa.Superior Ct. 199, 204, 418 A.2d 365, 367 (1979), cert. den. Strube v. Pennsylvania, 449 U.S. 992, 101 S.Ct. 527, 66 L.Ed.2d 288 (1980). The Strube court, addressing itself to the Pennsylvania Shield Law, noted the legislature’s recognition of the limited probative value of the often sordid details of a victim’s prior sexual history and emphasized the legislature’s concern in rape trials over the “travesty of presenting a noisome stream of defense witnesses testifying to the sexual propensities ... of the complaining witness.” Id., 274 Pa.Superior at 207, 418 A.2d at 369. A clear directive of the Pennsylvania legislature would be ignored if testimony of a victim’s prior relations is permitted, as the victims would be “exposed to the harassment of inquiry into their sexual behavior and to the likelihood of a jury biased against them and for the perpetrator of the alleged crime.” Commonwealth v. Majorana, 299 Pa.Superior Ct. 211, 218, 445 A.2d 529, 532 (1982). The sixth amendment to the United States Constitution applied to the States through the Fourteenth amendment, and Article 1 § 9 of the Pennsylvania Constitution guarantee the right of confrontation to the accused. The sixth amendment right to confrontation, in addition to guaranteeing a right to cross-examine witnesses, guarantees a right to the accused to present witnesses in his behalf. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). The fundamental right to confront witnesses often gives way, however, to certain evidentiary principles. The exclusion of hearsay evidence, for instance, is premised on the idea that such statements often lack the relevancy necessary to outweigh their questionable truthfulness and potential prejudice. In the same way, prejudicial and irrelevant opinion and reputation evidence is often excluded. These varied evidentiary exclusions do not deny an accused his right to a fair trial as his need for the evidence is outweighed by considerations of truth and relevancy. Similarly, there is no constitutional right of the accused in a rape case to introduce evidence that is prejudicial, inflammatory and irrelevant. See generally, Commonwealth v. Strube, supra. As with other evidentiary rules, the state’s interest must be balanced against the fundamental right of the accused to a fair trial. Here, the state’s interest in shielding the complainant from undue harassment in a rape prosecution must be balanced against appellant’s right to confront his accuser by presenting evidence of the complainant’s prior sexual conduct. Appellant’s sole purpose in introducing evidence of the victim’s alleged prior sexual relations with others was to create an inference for the jury connecting the victim’s purported consent on earlier occasions with his consent to relations with appellant. “A rape victim’s previous sexual conduct with other persons has very little probative value about [his] consent to intercourse with a particular person at a particular time.” State v. Green, 260 S.E.2d 257, 261 (W.Va., 1979). Evidence of a rape victim’s prior relations with other persons is generally only slightly relevant to the issue of consent with the accused and absent extraordinary circumstances fails to shift the balance between the state’s interest in shielding the rape victim and the defendant’s right to confrontation in favor of the defendant. See generally, 1 A.L.R.4th 283 (1980); see State v. Green, supra (evidence of previous sexual relations of little probative value to issue of consent with accused); Smith v. Commonwealth, 566 S.W.2d 181 (Ky.App., 1978) (exclusion of testimony of prior sexual relations constitutional and valid exercise by the legislature); People v. Khan, 80 Mich.App. 605, 264 N.W.2d 360 (1978) (“no logical inference can fairly be drawn from complainant’s sexual background which would shed light on the issue of consensual sex with defendant”); State v. Ryan, 157 N.J.Super. 121, 384 A.2d 570 (1978) (Rape shield does not violate defendant’s right to confrontation—prior relations neither relevant nor material); In Interest of Nichols, 2 Kan.App.2d 431, 580 P.2d 1370 (1978) (sixth amendment does not permit the introduction of all evidence, rather, it subjects the evidence to a relevancy threshold); People v. Blackburn, 56 Cal.App.3d 685, 128 Cal.Rptr. 864 (1976) (Limited exclusion of victim’s past sexual conduct to prove consent “no more deprives a defendant of a fair trial than do the rules of evidence barring hearsay____”).

We recognize that situations may exist where “the defendant’s valued right to meet the prosecution’s case with proof that he is indeed innocent,” outweighs “state interests, as embodied in particular statutory standards applied in specific factual contexts.” V. Berger, Man’s Trial, Woman’s Tribulation: Rape Cases in the Courtroom, supra at 55. In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the defendant challenged the constitutionality of the Alaska Juvenile Shield Law restricting exposure of a juvenile’s record. The defendant, charged with burglary, wanted to demonstrate that the crucial identification witness, a juvenile whom he was not allowed to cross-examine, testified against him and identified him out of fear of his own juvenile probation. In this situation, the Court determined that the accused’s right to confrontation prevailed over the state’s interest in safeguarding a juvenile’s record. Although Davis involved the constitutionality of a statutory shield law, the present case does not involve the exclusion of evidence necessary to establish the bias of a prosecution witness, a witness’s motive to testify falsely, or a witness’s ulterior motive. See People v. Blackburn, supra. The need to cross-examine the juvenile about his own involvement with the law and his potential bias, addressed a critical inquiry, not an irrelevant issue. See Shockley v. State, 585 S.W.2d 645 (Tenn.Cr.App.1978) (court erred in excluding testimony as to who caused the complainant’s pregnancy—embarrassment to complainant outweighed by injustice to appellant’s inability to present defense); People v. Mandel, 61 App.Div.2d 563, 403 N.Y.S.2d 63 (1978), rev’d 48 N.Y.2d 952, 425 N.Y.S.2d 63, 401 N.E.2d 185, cert. den. and app. dism’d Mandel v. New York, 446 U.S. 949, 100 S.Ct. 2913, 64 L.Ed.2d 805 (1980), reh. den. 448 U.S. 908, 100 S.Ct. 3051, 65 L.Ed.2d 1138 (1980) (evidence of prior sexual relations offered not primarily to demean or harass victim, but to demonstrate credibility, mental and emotional condition and ability to perceive and recall past events); State v. Jalo, 27 Or.App. 845, 557 P.2d 1359 (1976) (where evidence of prior relations offered to show motive to falsely accuse defendant, Davis v. Alaska compels a different conclusion because defendant’s constitutional right to confrontation to show an ulterior motive is infringed upon).

In the instant case, appellant was denied the right to present testimony of three fellow inmates concerning their prior sexual relations with the victim, in order to substantiate appellant’s claims that the victim consented. Appellant sought to introduce the evidence solely to imply consent, the precise use of the evidence the legislature sought to preclude. Because appellant has offered no special circumstances to outweigh the state interest in shielding the rape victim from this marginally relevant evidence, we find § 3104 constitutional in this situation.

Appellant contends also that the lower court erred in its jury charge. More specifically, appellant argues that the jury should have been made aware that the Rape Shield Law prevented appellant from introducing evidence of the complainant’s prior sexual relations with others. We find this contention patently meritless. . “As a general rule the trial judge should instruct the jury on the law applicable to the facts of the case before it and should charge only on those points and issues which arise out of the evidence and arguments presented.” Commonwealth v. Schaller, 493 Pa. 426, 430, 426 A.2d 1090, 1092 (1981). The trial judge must clarify the issues so that the jury clearly understands the questions to be resolved. Commonwealth v. Meas, 415 Pa. 41, 45, 202 A.2d 74, 76 (1964). We cannot hold that the evidence excluded by the Rape Shield Law should have been presented to the jury in such a backhanded manner. To inform the jury of the existence of evidence of the complainant’s prior sexual history would cause the same harm as the introduction of the evidence itself. Because the jury might infer that the complainant’s sexual relations with others are indicative of his consent to activity with appellant in this situation, this charge would circumvent the exclusion designed to protect against that very harm. The lower court properly refused to charge the jury on this issue.

We find appellant’s contentions with regard to the Rape Shield Law without merit and, accordingly, affirm the judgment of sentence.

Judgment of sentence affirmed.

      . We disagree with the lower court’s determination and the Commonwealth’s contention that appellant has waived this claim by failing to raise it at any time prior to this appeal. In appellant’s motion for a pre-trial conference, paragraphs 5 and 6 specifically state:
      ¶ 5 It is anticipated that the Commonwealth will argue that [testimony of the victim’s prior sexual relations] would be inadmissible pursuant to the Pennsylvania Rape Shield Law.
      ¶ 6 The Defendant would contend that the Rape Shield Law is unconstitutional in that it deprives him of his rights under due process and the right to confront witnesses.
      Furthermore, appellant’s post-verdict motions specifically allege that "This Honorable Court erred in refusing to allow the Defendant to introduce testimony of prior sexual relations between the victim and other inmates ...” Finally, the constitutional issue was fully briefed by both the Commonwealth and appellant at post-verdict motions. We find the issue sufficiently preserved for post-trial and appellate review.

      . Although “rape shield” laws were primarily intended to exclude evidence with a "highly traumatic and embarassing effect” on the female victim, Commonwealth v. Strobe, 274 Pa.Superior Ct. 199, 207, 418 A.2d 365, 369 (1979) cert. den. Strube v. Pennsylvania, 449 U.S. 992, 101 S.Ct. 527, 66 L.Ed.2d 288 (1980), the definition of rape has changed so that both men and women are now potential victims. While the difficulty in determining if a particular jurisdiction’s- law permits “the accused to introduce proof of the male victim’s sexual background (that is, homosexual activities) in order to show he agreed to relations and therefor was not illegally assaulted” has been noted, V. Berger, Man’s Trial, Woman’s Tribulation: Rape Cases in the Courtroom, 77 Colum.L.R. 1, 50 (noting the lack of decisions on this issue because of few official complaints and the fact that many forced homosexual acts occur in prison), we interpret the Pennsylvania sexual offense statutes to afford a male rape victim the same evidentiary privileges afforded a female. Rape is committed in Pennsylvania when a person "engages in sexual intercourse with another person not his spouse
      (1) by forcible compulsion; (2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution; (3) who is unconscious; or (4) who is so mentally deranged or deficient that such person is incapable of consent.
      18 Pa.C.S.A. § 3121. Section 3101 of the Crimes Code defines "Sexual intercourse" in the following manner: “In addition to its ordinary meaning, includes intercourse per os or per anus, with some penetration however, slight; emission is not required.” "Deviate sexual intercourse” is defined as “sexual intercourse per os or per anus between human beings who are not husband and wife and any form of sexual intercourse with an animal.” 18 Pa.C.S.A. § 3101. Because the Pennsylvania sexual offense provisions are clearly gender neutral, we conclude that any evidentiary exclusions established to aid victims of those crimes are equally applicable to both male and female victims.

      . Commonwealth v. Strube, supra upheld the constitutionality of § 3104(b) of the Rape Shield Act which details the evidentiary proceedings that must be followed by a defendant who proposes to offer evidence of the alleged victim’s past sexual conduct pursuant to § 3104(a). The court determined that the disclosure requirements did not violate the appellant’s due process rights.

      . Two other United States Supreme Court cases have placed the right to confrontation paramount to the state’s interests. See Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (murder defendant denied fair trial because state’s hearsay and voucher rules denied him the opportunity to demonstrate that another man had confessed to the crime); United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (balanced the President’s executive privilege against the Watergate defendants’ right to confrontation).

      . Appellant’s reliance on Commonwealth v. Duncan, 279 Pa.Superior Ct. 395, 421 A.2d 257 (1980), is misplaced. In Duncan, despite the panel’s inability to decide the constitutionality of § 3104(a) because the issue had been waived, the court, in dicta, clearly questioned its constitutionality. The defendant sought to introduce evidence of the victim’s prior sexual relations with a third person to demonstrate that the victim, angry because the defendant caught her with the third person, and informed her cousin who told her mother, had fabricated the charges against him. As noted by the Duncan court, if such evidence had been admitted, the defendant may have been exculpated. The defendant’s need for the evidence in Duncan was closer to Davis v. Alaska, where the balance between the state’s shield and the accused’s rights shifted in favor of the fundamental right to confrontation because the testimony was offered on an issue of critical importance.

      . For additional examples of balancing the fundamental right to confront witnesses and the state's interest in shielding the rape victim, see V. Berger, Man’s Trial, Woman's Tribulation: Rape Cases in the Courtroom) supra; J. Tanford and A. Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U. of P.L.R. 544 (January 1980).

      . Appellant’s contention that the testimony is relevant because the victim’s credibility is at issue circumvents the actual question. First, a testifying victim’s credibility is always at issue in a rape case. Second, appellant relies on the victim’s alleged statement to the Williamsport police to challenge the victim’s credibility. This statement was never elicited at trial. We therefore find it appropriate to address appellant’s argument as a challenge to the constitutionality of § 3104(a).


author: CERCONE, President Judge:

text:
    458 A.2d 999
    COMMONWEALTH of Pennsylvania v. Bruce ASBURY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 13, 1983.
    Filed April 8, 1983.

      Terrence P. Cavanaugh, Erie, for appellant.
    James R. Dailey, Erie, for Commonwealth, appellee.
    Before CERCONE, President Judge, and POPOVICH and VAN der VOORT, JJ.
   CERCONE, President Judge:

Appellant, Bruce Asbury takes this direct appeal from the judgment of sentence imposed by the Court of Common Pleas of Erie County on December 29, 1981 following his conviction by a jury of three (3) counts of possession of a controlled substance and three (3) counts of possession with intent to deliver a controlled substance. Appellant now asserts that the Commonwealth failed to adduce sufficient evidence to prove that he possessed the Schedule IV drugs, Prazepam and Chlordiacepoxide, with the intent to deliver them to another party. We agree.

The facts and procedural history relevant to the case sub judice are as follows: On January 7, 1981, two inmates housed in Cell Number Seven, in a section of the Erie County Prison known as the B Range, were taken to a local hospital for treatment of illnesses which were subsequently diagnosed as drug overdoses. Endeavoring to arrest the use of illicit drugs by inmates, prison officials ordered guards to conduct a cell-by-cell search of the B Range and its occupants for contraband. During the course of this investigatory “shakedown,” Officers Ken Brown and David Kelly inspected Cell Number Six which was occupied by appellant and his cellmate, Charles Toliver. Discovering no contraband in the cell itself, the guards then subjected appellant and Toliver to a strip search. An inspection of appellant’s clothing yielded a small tobacco tin secreted in the heel of appellant’s left tennis shoe which he was wearing immediately prior to the search. The tin contained one hundred seven (107) pills, three of which were conspicuously labelled as aspirin. Analysis performed on the remaining pills by the Pennsylvania State Police Crimes Laboratory established that thirty-two (32) of the seized tablets constituted controlled substances under Schedule IV of the Act.

As a consequence of the discovery of these prohibited substances in appellant’s shoe, appellant was charged by information with: (1) possession with intent to deliver one (1) capsule of Flurazepam; (2) possession with intent to deliver seventeen (17) capsules of Chlordiacepoxide; (3) possession with intent to deliver fourteen (14) capsules of Prazepam; (4) possession of Flurazepam; (5) possession of Chlordiacepoxide; and (6) possession of Prazepam. Appellant proceeded to a trial by jury on May 20, 1981 and, on that same afternoon, was found guilty of all charges.

Appellant’s post-verdict motions were filed on May 28, 1981. Following oral argument on these motions, the lower court issued an order, dated December 3, 1981, arresting judgment with respect to appellant’s conviction under Count One of the information for possession with intent to deliver one capsule of Flurazepam, but denying the requested relief as to Counts Two through Six.

On December 29, 1981, appellant was sentenced to concurrent terms of one and óne-half (IV2) to three (3) years incarceration for his convictions under Counts Two and Three of possession with intent to deliver Chlordiacepoxide and Prazepam. For his remaining convictions of simple possession of Flurazepam, Chlordiacepoxide, and Prazepam under Counts Four through Six, he was sentenced to three terms of imprisonment, each of a duration of six (6) to twelve (12) months, and each to be served concurrently to those sentences prescribed under Counts Two and Three. Motions to Modify and Reconsider Sentence were filed, argued and ultimately denied by the lower court on January 21, 1982.

As always, in measuring the sufficiency of evidence forming the basis of a criminal conviction, the reviewing court must inquire whether—accepting as true all the evidence upon which a jury could properly have based its verdict, together with all reasonable inferences therefrom— such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Waller, 498 Pa. 33, 444 A.2d 653 (1982); Commonwealth v. Gray, 297 Pa.Superior Ct. 123, 443 A.2d 330 (1982). The evidence, of necessity, is to be viewed in the light most favorable to the Commonwealth, the verdict winner. Commonwealth v. Edwards, 493 Pa. 281, 426 A.2d 550 (1981); and Commonwealth v. Johnson, 273 Pa.Superior Ct. 14, 416 A.2d 1065 (1979). Oft-cited, however, is the principle that “[although the Commonwealth does not have to establish guilt to a mathematical certainty, guilt must be proven and may not rest on mere suspicion and surmise.” Commonwealth v. Rodriguez, 296 Pa.Superior Ct. 349, 351, 442 A.2d 803, 804 (1982). See also Commonwealth v. Roscioli, 454 Pa. 59, 62, 309 A.2d 396, 398 (1973); and Commonwealth v. Reed, 276 Pa.Superior Ct. 467, 469, 419 A.2d 552, 553-554 (1980). Our review of the evidence commensurate with these fundamental precepts leads us to conclude that the Commonwealth failed to prove beyond a reasonable doubt that appellant possessed fourteen (14) Prazepam tablets and seventeen (17) Chlordiacepoxide tablets with the concomitant intent to deliver them to others.

Appellant’s convictions for possession with intent to deliver controlled substances rest entirely upon evidence that (a) two inmates housed in Cell Number Seven of the Erie County Prison were treated for drug overdoses on January 7, 1981; (b) a “shakedown” operation conducted by prison guards on the same afternoon, which included Appellant’s Cell Number Six, resulted in the discovery of a tobacco tin hidden in appellant’s shoe that contained 107 capsules of drugs, only 32 of which qualify as Schedule IV controlled substances; (c) appellant’s cellmate, Charles To-liver, appeared “drowsy” to investigating officer Brown, and was later found to have consumed a relatively large dosage of an unnamed drug. Although these facts are certainly relevant to the question of whether appellant was the supplier from whom Toliver and the two hospitalized inmates procured their drugs, they are, standing alone, insufficient as a matter of law to prove that appellant possessed the Prazepam and Chlordiacepoxide capsules with a concurrent intent to distribute them.

In its Opinion, the lower court lends considerable weight to the quantity of the pills found in the tobacco tin, positing that the mere possession of thirty two pills is reflective of an intent to deliver. We cannot concur in this judgment. It is true that in previous cases, our Courts have ruled that the possession of large amounts of illicit drugs, under certain circumstances, may justifiably suggest an inference of an intent to deliver. However, these cases are factually distinguishable from the case at bar insofar as they upheld convictions which were grounded upon the possession of quantities of drugs far in excess of that possessed by the instant appellant. Expert testimony on the matter of whether possession of thirty-two dosage units of a prohibited substance is consistent with personal use or is reflective of an intent to deliver would have proved helpful. However, the Commonwealth declined to afford such a benefit, and in the absence of such testimony, we are unable to conclude that it was reasonable to infer an intent to deliver on the part of appellant merely by virtue of his possession of such a small quantity of drugs. Moreover, we regard as equally untenable the position adopted by the lower court that appellant's lawful possession of over seventy capsules of a prescribed drug, when viewed in conjunction with his unlawful possession of Prazepam and Chordiacepoxide, gives rise to an inference of an intent to deliver. Without the assistance of testimony which tends to prove some nexus between the possession of the prescription drug, the possession of the controlled substances, and a resulting intent to distribute the controlled substances, we accord no persuasive force to appellant’s possession of the prescription drugs which, to our knowledge, were never identified at trial.

The lower court also regards as persuasive the fact that three inmates in the B Range, including appellant’s cellmate, required medical treatment for drug-related illnesses on the same day that prison guards discovered in appellant’s shoe the tobacco tin containing illicit drugs. We disagree since the record discloses that the Commonwealth made no attempt at trial to link appellant’s possession of the contraband with the inmate overdose cases. Moreover, assuming arguendo that these facts, taken together, suggest that at some point in the past appellant may have delivered controlled substances to other prisoners, they can in no way be said to reflect an intent to deliver relative to the particular drug capsules seized by prison authorities from the tobacco tin. The inference that appellant intended to deliver these drugs, under the circumstances cited by the lower court, does not fairly spring from the evidence at trial but rather is the product of an exercise in speculation.

Because we find that the Commonwealth’s case with respect to the charge of possession with intent to deliver falls far short of the quantum of proof required to sustain such a conviction, the judgment of sentence entered for Counts Two and Three is reversed and appellant discharged with judgment of sentence affirmed as to Counts Four through Six.

Reversed and appellant discharged as to Counts Two and Three. Jurisdiction relinquished.

      . Controlled Substance, Drug, Device and Cosmetic Act of April 14, 1972, P.L. 233 No. 64 (hereinafter referred to as "the Act") § 13(a)(16), as amended 35 P.S. § 780-113(a)(16) (Supp.1982-1983).

      . Id. at § 13(a)(30), 35 P.S. § 780-113(a)(30).

      . Id. at § 104(4), 35 P.S. § 780-104(4).

      . See e.g. Commonwealth v. Chamberlain, 277 Pa.Superior Ct. 503, 419 A.2d 1261 (1980) (nine pounds of marijuana); Commonwealth v. Rambo, 250 Pa.Superior Ct. 314, 378 A.2d 953 (1977), reversed on other grounds, 488 Pa. 334, 412 A.2d 535 (1980) (over ten pounds of hashish having a street value of $15,000); Commonwealth v. Harris, 241 Pa.Superior Ct. 7, 359 A.2d 407 (1976) (sixteen half-spoons of heroin, two measuring spoons and a small scale); Commonwealth v. Wright, 234 Pa.Superior Ct. 83, 339 A.2d 103 (1975) (twenty-five packets of heroin).