author: TAMILIA, Judge:

text:
    514 A.2d 890
    COMMONWEALTH of Pennsylvania v. George E. ARNOLD, Appellant.
    Superior Court of Pennsylvania.
    Argued June 3, 1986.
    Filed Aug. 28, 1986.

      Anne John, Uniontown, for appellant.
    Ewing D. Newcomer, Assistant District Attorney, Union-town, for Com., appellee.
    Before CIRILLO, President Judge, and TAMILIA and POPOVICH, JJ.
   TAMILIA, Judge:

This appeal follows appellant’s conviction, in a non-jury trial, of corrupting the morals of a minor, indecent assault, involuntary deviate sexual intercourse and indecent exposure. Under the provisions of 42 Pa.C.S.A. § 9718/ appellant was sentenced to imprisonment for a term of five to ten years. He was also ordered to pay prosecution costs, $25 to the Crime Victims Compensation Fund and a fine of $500.

The conduct which formed the basis of appellant’s conviction involved sexual contact between a minor child, who resided with her mother, and appellant. The activity extended over a two-year period beginning when the child was six years old.

In November 1984, appellant, accompanied by the child’s mother, met with a caseworker for Children and Youth Services. Appellant made various inculpatory statements to the caseworker concerning his conduct with the child. The caseworker subsequently contacted the Chief of Police of Luzerne Township, Fayette County, pursuant to the mandatory reporting provisions of the Child Protective Service Law (11 P.S. § 2204) The police contacted appellant and placed him under arrest. While in custody and after being given his Miranda warnings, appellant made inculpatory statements to the police.

Appellant initially filed pre-trial motions seeking to have the reporting provision (11 P.S. § 2204) of the Child Protective Services Act, 11 P.S. § 2201 et seq., declared unconstitutional and his statements suppressed. This motion was denied and appellant petitioned to have the matter certified for appeal. The petition was also denied and appellant was subsequently convicted. Following the denial of post-trial motions and sentencing, this appeal was filed wherein appellant seeks to again challenge the constitutionality of the Child Protective Services Law and also the mandatory sentencing provisions of 42 Pa.C.S.A. § 9718.

Appellant contends the trial court erred in not granting his post-trial motions in arrest of the judgment or for a new trial. This is based on the assertion that the Children and Youth Service’s caseworker violated his constitutional rights by not informing him prior to the making of his statements of his Miranda rights or of her obligation to report suspected child abuse. He also maintains the statements made to the police were tainted by the illegality of the initial statements and should have been suppressed. Finally he argues that the mandatory sentencing provision of 42 Pa.C.S.A. § 9718 is unconstitutional in that it inflicts cruel and unusual punishment while denying equal protection.

Our review of the briefs and the record in this case leads us to conclude that appellant’s claims are without merit.

An Order denying a motion to suppress shall be upheld on review if the factual findings of the lower court are supported by the record and the legal conclusions drawn therefrom are not in error. Commonwealth v. Otto, 343 Pa.Super. 457, 464, 495 A.2d 554, 558 (1985) citing Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982); Commonwealth v. Jackson, 497 Pa. 591, 595, 442 A.2d 1098, 1100 (1982).

We agree with the suppression hearing court that no constitutional violation occurred when appellant made the statements to the caseworker and later to the police.

Appellant alleges the lower court erred in failing to grant his motion for suppression by reason of intrusion into his privacy as to confidential statements made to a child welfare worker who subsequently reported them to the police. Appellant claims there is a privilege of confidentiality and privacy as well as a right against self-incrimination which were violated.

The right of privacy in the family setting has never been extended to criminal acts in the family or against or with family members. The pole star cases in recent times on the right to marital privacy are Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) and Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed. 147 (1973). The personal intimacies of marriage, procreation, contraception, child rearing, education and family relationships have been held fundamental by the Supreme Court and hence have been encompassed within a constitutional right of privacy. Id.; Bowers v. Hardwick, — U.S. —, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). In the Concurring Opinion of Justice Goldberg in Griswold, joined by Chief Justice Warren and Justice Brennan, it was stated:

Finally, it should be said of the Court’s holding today, that it in no way interferes with a State’s proper regulation of sexual promiscuity or misconduct. As my Brother Harlan so well stated in his dissenting opinion in Poe v. Ullman, supra, 367 U.S. [497] at 553, 81 S.Ct. [1752] at 1782 [6 L.Ed.2d 989]
‘Adultery, homosexuality and the like are sexual intimacies which the state forbids ... but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected____’

Id. 381 U.S. at 498-99, 85 S.Ct. at 1689, 14 L.Ed.2d at 523-24.

It is inconceivable that incest or sexual abuse of children has ever been considered a “fundamental right” that could fall under the cloak of family intimacies or privacy which enjoy the protection of the constitution. It has been enjoined by every religion, state and body of law in Western civilization from time immemorium. Most recently, the United States Supreme Court, in Bowers, supra, disclaimed that the right to privacy included the right to engage in homosexual activity when prohibited by law and went on to say (Justice White speaking for the court):

Plainly enough, otherwise illegal conduct is not always immunized whenever it occurs in the home. Victimless crimes, such as the possession and use of illegal drugs do not escape the law where they are committed at home. Stanley [v. Georgia, 394 U.S. 557[89 S.Ct. 1243, 22 L.Ed.2d 542] (1969) where the Court held that the First Amendment permits conviction for possessing and reading obscene material in the privacy of ones home] itself recognized that its holding offered no protection for the possession in the home of drugs, firearms, or stolen goods. Id., at 568, n. 11 [89 S.Ct. at 1249, n. 11] And if respondent’s submission is limited to the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road, (emphasis added)

Id. — U.S. at —, 106 S.Ct. at 2846. Since no privilege exists within the home to commit the acts complained of, none can be exerted against the police because of the report submitted by the C.Y.S. social worker, resulting in their questioning of appellant. Pursuant to 11 P.S. § 2201 et seq., the Child Protective Service Law, Children and Youth Service of Fayette County is required to investigate reports of suspected abuse and also under section 2217, each child protective service shall:

(8) Based on the investigation and evaluation conducted pursuant to this act, provide or contract with private or public agencies for the protection of the child in his home whenever possible, and/or those services necessary for adequate care of the child when placed in protective custody. Prior to offering such services to a family, explain that it has no legal authority to compel such family to receive said services, but may inform the family of the obligations and authority of the child protective service to initiate appropriate court proceedings.
(9) In those cases in which an appropriate offer of service is refused and the child protective service determines or if the service for any other appropriate reason determines that the best interests of the child require court action, initiate the appropriate court proceeding.
(10) Assist the court during all stages of the court proceeding in accordance with the purposes of this act.

While this is not a direct mandate on the agency to proceed toward prosecution, it does establish that the agency has the right to initiate court action when it is in the interest of the child to do so. Nothing in the act prevents reports to law enforcement officials when it appears appropriate.

While appellant would have us find that the thrust of the law is treatment of the offender and reporting sexual activity to the police by the C.Y.S. social worker, would have a “chilling effect” on that treatment, the law is clearly from its title and its wording throughout, a “Child Protective Service” law. Nationwide, the difficulty of treating this problem has been recognized and one of the most serious problems has to do with effective treatment of the abuser and the high rate of recidivism, particularly where prosecution is ineffective. A child quickly becomes the focus of guilt and blame from family members when there is outside intervention for its protection and, short of removal of the child, there is great difficulty in producing effective treatment as proof of the sexual activity is gradually subverted. Prosecution or threat of prosecution is the only vehicle for opening the family dynamics to effective treatment and to protect the child and other members of the family from further abuse. The most difficult problem has been to bring about a workable arrangement between prosecution and treatment, long term, for accommodating the twin goals of treatment and punishment. Without prosecution, it is unlikely there would be treatment; surely there would be no deterrence and without treatment there would be much higher recidivism. As stated above (§ 2217(8)), the law cannot compel treatment, yet must assure the protection of the child.

The law, to accomplish the unique requirements of a legal action in which a child, highly vulnerable because of familial pressure, anxiety and harsh defense trial practices, is the primary witness, has been relaxed to assure effective proceedings. In particular, it eliminated any claim of privilege between husband and wife or between any professional person. Section 2222 of the Act provides:

§ 2222. Hearings and evidence
In addition to the rules of evidence provided under the Juvenile Act the following shall govern in child abuse proceedings in juvenile or family court:
(1) Whenever any person required to report under this act is unavailable due to death or removal from the court’s jurisdiction, the written report of such person shall be admissible in evidence in any proceedings arising out of child abuse other than proceedings under the Crimes Code. Any hearsay contained in the reports shall be given such weight, if any, as the court shall determine to be appropriate under all of the circumstances. However, any hearsay contained in a written report shall not of itself be sufficient to support an adjudication based on abuse.
(2) Except for privileged communications between a lawyer and his client and between a minister and his penitent, any confidential communication between husband and wife or between any professional person, including but not limited to physicians, psychologists, counselors, employees of hospitals, clinics, day care centers, and schools and their patients or clients, shall not constitute grounds for excluding evidence at any proceeding regarding child abuse or the cause thereof.
(3) Evidence that a child has suffered serious physical injury, sexual abuse or serious physical neglect of such a nature as would ordinarily not be sustained or exist except by reason by the acts or omissions of the parent or other person responsible for the welfare of such child shall be prima facie evidence of child abuse by the parent or other person responsible for the child’s welfare.
1975, Nov. 26, P.L. 438, No. 124, § 22, imd. effective. (Emphasis added)

Spouses as witnesses against each other, 42 Pa.C.S.A. § 5913, provides that a spouse

... shall not be competent or permitted to testify against each other, except in proceedings for desertion and maintenance, and in any criminal proceeding against either for bodily injury or violence attempted, done or threatened upon the other, or upon the minor children of said husband and wife, or the minor children of either of them, or any minor child in their care and custody____ (Emphasis added)

Appellant further relies on In re B., 482 Pa. 471, 394 A.2d 419 (1978) to secure the right of privacy between himself and the C.Y.S. social worker. In re B. is inapposite as it had to do with the right of a mother who engaged in psychotherapy, to claim personal privilege between patients and their doctors, when her records were subpoenaed by the court to determine her fitness to have her child returned to her in a dependency proceeding. That opinion applies only to the facts of that case as the plurality was for reversal but without a majority deciding that a parents doctor client privilege extended to a parent in a proceeding vis a vis the child.

The issue of confidentiality is not present here as C.Y.S. is not only a treatment agency but is the investigative arm of the statewide system of Child Protective Services. It is clear from the act that depending upon its findings, it has a wide range of responsibility including initiating court action, if necessary (supra). Thus while appellant was on notice from the law that his statements could be used against him in court actions, and he had no privilege of confidentiality in that regard, he had no right to Miranda warnings, as the role of the agency is to protect children and not that of a police agent. There was no compulsion involved in his statements either to the C.Y.S. social worker or the police.

Even in the context of a state or county official receiving an inculpatory statement (Miranda, supra), Miranda warnings are not required. This controversy was fully resolved by Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984), where a probationer on a different charge, admitted an earlier rape and murder, which was then reported to the police resulting in indictment and successful prosecution to conviction. The court, in an Opinion delivered by Justice White, stated:

We conclude, in summary, that since Murphy revealed incriminating information instead of timely asserting his Fifth Amendment privilege, his disclosures were not compelled incriminations. Because he had not been compelled to incriminate himself, Murphy could not successfully invoke the privilege to prevent the information he volunteered to his probation officer from being used against him in a criminal prosecution.

Id. 465 at 440, 104 S.Ct. at 1149, 79 L.Ed.2d at 428. It is also of significance that in the Murphy case, the first admission of the crime was to an Alpha House drug counselor, who reported to the P.O., who, after talking to the appellant, reported it to the police. In this case, since neither the statement to the C.Y.S. worker or the police was compelled, he cannot claim the privilege.

The challenge to the constitutionality of the mandatory sentencing provision of 42 Pa.C.S.A. § 9718 must also fail. The question of whether this section violates the constitutional, prohibition against cruel and unusual punishment was discussed in Commonwealth v. Wildermuth, 347 Pa.Super. 640, 501 A.2d 258 (1985) where the court refused to accept such an assertion. The United States Supreme Court recently reviewed the Pennsylvania Mandatory Sentencing Statute as it related to “a visibly possessed firearm” and affirmed the power of the legislature to enact mandatory minimum sentences. See McMillan v. Pennsylvania, — U.S. —, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). In doing so, the McMillan Court relied heavily on Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) and stated (in Patterson):

... [W]e rejected the claim that whenever a State links the “severity of punishment” to “the presence or absence of an identified fact” the State must prove that fact beyond a reasonable doubt. Id., [432 U.S.] at 214 [97 S.Ct. at 2329]; see also id., at 207 [97 S.Ct. at 2325] (State need not “prove beyond a reasonable doubt every fact, the existence or nonexistence of which it is willing to recognize as an exculpatory or mitigating circumstance affecting the degree of culpability or the severity of the punishment”).

Id. 106 S.Ct. at 2416.

Section 9718(a) of 42 Pa.C.S.A., in providing for a mandatory sentence of five years for the rape of a child under sixteen, does not increase the sentence required by statute nor does it eliminate proof beyond a reasonable doubt of any essential element necessary to convict. Upon proof of the facts of defendants’ and victims’ ages (which can be established at sentencing by a preponderance of the evidence), the requirement of a minimum sentence is fully within the legislative powers in determining the severity of punishment. See McMillan and Patterson, supra.

The claim that such a statute violates due process was also rejected in Wildermuth (also see McMillan and Patterson), thus we conclude that the case is controlling on both the issues raised and requires our rejection of appellant’s arguments.

For the reasons stated herein, the judgment of sentence is hereby affirmed.

Judgment of sentence affirmed.

      . 42 Pa.C.S.A. § 9718 provides:
      § 9718. Sentences for offenses against infant persons
      (a) Mandatory sentence. — A person convicted of the following offenses when the victim is under 16 years of age shall be sentenced to a mandatory term of imprisonment as follows:
      18 Pa.C.S.A. § 2702(a)(1) and (4) (relating to aggravated assault)— not less than two years.
      18 Pa.C.S.A. § 3121 (relating to rape) — not less than five years.
      18 Pa.C.S.A. § 3123 (relating to involuntary deviate sexual intercourse) — not less than five years.
      (b) Eligibility for parole. — Parole shall not be granted until the minimum term of imprisonment has been served. 1982, Dec. 30, P.L. 1472, No. 334, § 1, effective in 60 days.

      . 11 P.S. § 2204, in pertinent part, provides:
      § 2204. Persons required to report suspected child abuse
      (a) Any persons who, in the course of their employment, occupation, or practice of their profession come into contact with children shall report or cause a report to be made in accordance with section 6  when they have reason to believe, on the basis of their medical, professional or other training and experience, that a child coming before them in their professional or official capacity is an abused child.
      (c) Persons required to report under subsection (a) include, but are not limited to, any licensed physician, medical examiner, coroner, dentist, osteopath, optometrist, chiropractor, podiatrist, intern, registered nurse, licensed practical nurse, hospital personnel engaged in the admission, examination, care or treatment of persons, a Christian Science practitioner, school administrator, school teacher, school nurse, social services worker, day care center worker or any other child care or foster care worker, mental health professional, peace officer or law enforcement official. The privileged communication between any professional person required to report and his patient or client shall not apply to situations involving child abuse and shall not constitute grounds for failure to report as required by this act.

      . Miranda v. Arizona, 384 U.S. 471, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author: KELLY, Judge: OLSZEWSKI, Judge,

license: Public Domain

text:
    514 A.2d 896
    COMMONWEALTH of Pennsylvania v. James LUCKENBAUGH, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 1, 1986.
    Filed Sept. 4, 1986.

      Stephen P. Vlossak, Sr., Palmerton, for appellant.
    Richard W. Webb, District Attorney, Palmerton, for Com., appellee.
    Before McEWEN, OLSZEWSKI and KELLY, JJ.
   KELLY, Judge:

Defendant, James Luckenbaugh, appeals from the judgment of sentence imposed by the Court of Common Pleas of Carbon County. On appeal, he claims that the sentencing judge erroneously calculated his prior record score under the Sentencing Guidelines, and thus sentenced him to a longer term than was proper. We agree with appellant’s contention, and vacate the judgment of sentence.

Appellant entered a guilty plea on April 9, 1985 to one count of robbery, alleged to have occurred on November 13, 1984. On June 7, 1985, he was sentenced to serve two to four years in the Carbon County Prison. It is from this sentence which he now appeals, claiming that the sentencing judge erred in using juvenile adjudications in calculating his prior record score.

This Court has previously recognized that “[t]he Sentencing Guidelines impose strict limitations on the use of juvenile adjudications in sentencing for crimes committed as an adult.” Commonwealth v. Bivens, 337 Pa.Super. 216, 218-19, 486 A.2d 984, 985-6 (1984). At the time of appellant’s sentencing, the Guidelines stated that juvenile adjudications could be counted in computing a prior record score when:

[TJhere was an express finding that the adjudication was based on the commission of a felony or one of the weapons misdemeanors listed in subsection (a)(3) where the adjudication occurred on or after the defendant’s ljth birthday.

204 Pa.Code § 303.7(b)(ii) (emphasis added). Appellant alleges that the sentencing court utilized adjudications which occurred before his fourteenth birthday in calculating his prior record score, contrary to the dictates of Section 303.7. We agree.

The appellant was born on July 31, 1966. Although the lower court has not provided us with a sentencing guidelines form, a review of the sentencing transcript reveals that the court considered the following juvenile adjudications in determining that appellant has a prior record score of six:

(1) A juvenile adjudication based upon two counts of theft and two counts burglary, occurring on June 27, 1980, when appellant was thirteen years old;
(2) A juvenile adjudication based upon one count of burglary, occurring on November 15, 1983, when appellant was seventeen years old.

In calculating the prior record score, the sentencing court erred in considering juvenile adjudications which occurred before appellant had reached the age of fourteen. Accordingly, the sentence is vacated and the case is remanded for resentencing in accordance with the Sentencing Guidelines. Jurisdiction is relinquished.

McEWEN, J., joins opinion.

OLSZEWSKI, J., files dissenting opinion.

OLSZEWSKI, Judge,

dissenting:

I disagree with the majority’s decision to vacate sentence and to remand for resentencing. Inasmuch as appellant has forfeited his right to challenge his sentence by escaping from prison during the pendency of his petition for reconsideration, this Court should not review this issue on appeal pursuant to Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984).

Although I generally agree with the rule cited by the majority that a challenge to an illegal sentence cannot be waived, I nevertheless believe that it is inapplicable to the instant case. The “waiver” which our Courts have excused in challenging sentence is the failure, whether through intent or neglect, to preserve the issue for appellate review, i.e., failure to file post-verdict motions, or petition for reconsideration of sentence.

A review of the facts in the instant case reveals that appellant had preserved his right to appellate review when he filed a petition for reconsideration of sentence, hence, he has not waived his right to appeal the legality of his sentence. Nevertheless, he did forfeit his right to have his petition heard when he escaped from prison during the pendency of his petition.

It is well settled that a reviewing court may dismiss a petition under Commonwealth v. Barron, 237 Pa.Super. 369, 352 A.2d 84 (1975), when the petitioner has fled the jurisdiction and control of the court. Moreover, our Supreme Court has recognized that a reviewing court may refuse to reinstate a petition after the defendant has been recaptured. Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984); Commonwealth v. Boyd, 244 Pa.Super. 98, 366 A.2d 934 (1976) (Defendant who becomes a fugitive following his conviction, waives the right to judicial review of his case. If he thereafter returns, it is within the court’s discretion whether or not circumstances justify reinstatement of his post-trial motions or applications.). Consequently, since appellant has jeopardized his right to challenge the legality of his sentence by electing to escape from custody during the pendency of his petition, I would affirm the lower court’s decision to dismiss the petition. This Court should not indulge the whims of a petitioner who deliberately acted to avoid its rules.

      . The Commonwealth argues only that appellant has waived his right to appellate review. Following sentencing, appellant filed a motion for reconsideration. He then escaped from custody. As a result, the lower court dismissed his motion, finding that appellant had forfeited any right to have his claims considered. See Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984). This Court, however, may exercise its discretion and permit review of such claims when the appellant has returned to the jurisdiction. See Commonwealth v. Milligan, 307 Pa.Super. 129, 452 A.2d 1072 (1982); Commonwealth v. Borden, 256 Pa.Super. 125, 389 A.2d 633 (1978). Furthermore, certain claims, such as competence to stand trial, see Commonwealth v. Clark, 300 Pa.Super. 315, 446 A.2d 633 (1982), and a challenge to the legality of a sentence, see Commonwealth v. Padden, 335 Pa.Super. 51, 483 A.2d 950 (1984), cannot be waived. Thus, although the lower court properly dismissed appellant’s motion for reconsideration, we will consider the merits of appellant’s sentencing challenge.

      . Effective January 2, 1986, this Section was amended so as to permit scoring for:
      Each prior offense which resulted in a juvenile adjudication of delinquency where:
      (A) there was an express finding by the juvenile court that the adjudication was for a felony or one of the weapons misdemeanors listed in (a)(3),
      (B) the offense occurred on or after the defendant's 14th birthday, and
      (C) the currently sentenced offense is a felony.
      (Emphasis added).

      . During sentencing, the judge referred to appellant’s juvenile adjudications numerous times. (N.T. 6/17/85, pp. 16-19). The judge then told appellant that he was sentencing him to serve two to four years, "the minimum sentence under the guidelines.” The offense gravity score for robbery, 18 Pa.C.S. § 3701(a)(l)(iv), is either a 5 or a 6, according to 204 Pa.Code § 303.8. Looking to the minimum range section of the sentence range chart, 204 Pa.Code § 303.9, and using the higher offense gravity score of 6, we find that a prior record score of at least 3 must be used to reach the sentence given to appellant, 24 to 48 months. Thus, it is clear that the sentencing judge considered at least one of the juvenile adjudications which occurred before age fourteen in calculating appellant’s prior record score.

      . Appellant also challenges the use of this adjudication, which occurred when he was seventeen years old. He claims that (1) the sentencing commission exceeded its authority in calling for the use of juvenile adjudications in calculating a prior record score; (2) that Section 303.7 is an ex post facto law and is constitutionally defective, since it increases the punishment which a defendant receives for juvenile acts; (3) the sentencing guidelines are in conflict with the juvenile act. These issues are presently being considered by the court en banc in Commonwealth v. Tilghman, 770 Philadelphia 1985. On remand for resentencing, the sentencing court should be guided by our disposition of these issues.


author: CERCONE, Judge:

text:
    514 A.2d 899
    In the Interest of J.S.M., a minor. Appeal of YORK COUNTY CHILDREN AND YOUTH SERVICES.
    Superior Court of Pennsylvania.
    Submitted June 23, 1986.
    Filed Sept. 5, 1986.

      Sheryl A. Dorney, York, for appellant.
    Dorothy Livaditis, York, for appellee.
    Before OLSZEWSKI, CERCONE and HESTER, JJ.
   CERCONE, Judge:

On September 5, 1985, appellant York County Children and Youth Services filed a Petition for Emergency Placement of the above-named minor in the Court of Common Pleas of York County. The court ordered that the minor remain at the Children’s Home of York until appellant could determine the availability of relatives or until a dependency petition would be filed.

On September 12, 1985, the appellant filed an Alleged Dependent Child Petition in the York County court. A hearing was scheduled for October 3, 1985 but it was continued for the purpose of exploring the issue of whether Lancaster County should assume jurisdiction over this case. Apparently no agreement was reached between officials in the two counties.

On November 7, 1985, appellant filed a Petition to Transfer Custody and Jurisdiction from York County to Lancaster County. A hearing was conducted at which time testimony was taken regarding the child’s situation and her family’s ability to provide care and supervision for her. The York County court issued an order directing the minor’s custody be vested in Lancaster County Children and Youth Services and that jurisdiction be transferred to the Juvenile Court of Lancaster County. An attorney for York County Children and Youth Services forwarded a letter to Judge Buckwalter, of Lancaster County court of common pleas, requesting that he direct Lancaster County Children and Youth Services to honor the November 12 court order.

On December 5, 1985, Judge Buckwalter filed a memorandum opinion and order declining to accept transfer of the case from York County, finding the minor’s most recent residence to be in York County and, therefore, holding that proper venue and jurisdiction of the matter rested in York County. It is from this order from which this appeal lies.

The instant case deals with a dependency proceeding initiated pursuant to the Juvenile Act, Act of July 9, 1976, P.L. 586, No. 142, 42 Pa.C.S.A. §§ 6301-6365. To effectuate the purposes of the Act, there are certain instances in which the court of a county within the commonwealth may transfer a juvenile proceeding to another court within the commonwealth. These instances are set forth in section 2 of the Act, 42 Pa.C.S.A. § 6321(c), as follows:

(c) Transfer to another court within this Commonwealth.—
(1) If the child resides in a county of this Commonwealth and the proceeding is commenced in a court of another county, the court, on motion of a party or on its own motion made after the adjudicatory hearing or at any time prior to final disposition, may transfer the proceeding to the county of residence of the child for further action. Like transfers may be made if the residence of the child changes during the proceeding. The proceeding may be transferred if the child has been adjudicated delinquent and other proceedings involving the child are pending in the court of the county of his residence.

A resolution of this case depends on a determination of the location of the minor’s last “residence.” As the term “residence” is not specifically defined for use in the Juvenile Act, it will be construed according to its common and approved usage. See statutory construction act of December 6, 1972, P.L. 1339, No. 290, § 3; 1 Pa.C.S.A. § 1903; Commonwealth v. Roberson, 298 Pa.Superior Ct. 184, 444 A.2d 722 (1982).

“Residence” is defined as, “Personal presence at some place of abode with no present intention of definite and early removal and with purpose to remain for undetermined period, not infrequently, but not necessarily combined with design to stay permanently.” Black’s Law Dictionary 1176 (rev. 5th ed. 1979). “Residence” is compared and distinguished from “domicile” in the following manner,

As “domicile” and “residence” are usually in the same place, they are frequently used as if they had the same meaning, but they are not identical terms, for a person may have two places of residence, as in the city and country, but only one domicile. Residence means living in a particular locality, but domicile means living in that locality with intent to make it a fixed and permanent home. Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one’s domicile. Fuller v. Hofferbert, C.A.Ohio, 204 F.2d 592, 597 [(1953)].

Blacks’s Law Dictionary, id.

In its Order directing that the minor’s custody be vested in Lancaster County Children and Youth Services, the York court reviewed the testimony which had been presented as follows:

Jenny has indicated that she would like to remain here and her mother has indicated in stronger terms she would like jurisdiction to remain in York County____
The sole question in our mind is where jurisdiction properly lies and where Jenny’s best interests can best be served. We are satisfied that those best interests will be served by a transfer of jurisdiction to Lancaster County. We believe that is true because Jenny has been a resident of Lancaster County for virtually all of her life. We note that Jenny was picked up as a run away in the City of New York a few weeks ago, that before that she was living with her father in York County for a period of anywhere from two days to a maximum of three weeks, that before that she had resided with her mother for about three months in Columbia, Lancaster County, Pennsylvania and prior to that, for between three and four years with her maternal grandmother, also in Columbia, Lancaster County, Pennsylvania. Prior to that, she had been in a foster home in Lancaster County, pursuant to the intervention of the Lancaster County agency and this shows essentially that not only her family contacts, but all of her life has been associated with Lancaster County. While it would not be wholely (sic) inappropriate for the York County Agency to assume jurisdiction, we feel that all of the factors that we have discussed and Jenny’s background require that the Lancaster County Children and Youth Services Agency be designated as the appropriate agency for this case.

While the York court may have been correct in determining that the minor had her most significant contacts in Lancaster County, that factor is not dispositive of the question at hand.

The undisputed testimony shows that the minor had resided in York County for at least four months prior to the date the transfer hearing was conducted. For two of those months she was in the custody of the York County Children and Youth Services. The testimony also shows that the minor did not have a residence to return to in Lancaster County. At the hearing, the child advocate asked the minor’s mother, “Do you foresee having Jenny return to your home at any time in the future?”, to which she responded, “Not with the attitude that she has of bringing men into the home when I’m not there, and I can’t be home 24 hours a day. I must work.” Clearly the petitioner failed to show that the minor’s “residence” was in Lancaster County. At most, the appellant showed that the minor had formerly resided in Lancaster County. In reality, the appellant was attempting to create a residence for the minor in Lancaster County by seeking a transfer of responsibility for the child to the Lancaster Children and Youth Services.

While we have no doubt that the York County Children and Youth Services was attempting to provide for what it considered to be the child’s best interest, our analysis must be guided by the statutory provisions for transfer. The statute provides for the residence to be pre-existing in the receiving county. As the appellant has failed to show the existence of such a residence in Lancaster County, its petition must fail.

Accordingly, the order of the Lancaster County Court of Common Pleas is affirmed. The York County Court of Common Pleas is directed to retain jurisdiction of this case and to proceed accordingly.

      . Both York County and Lancaster County have a resident parent. Both parents had indicated an unwillingness or inability to care for the minor.


author: CIRILLO, President Judge:

text:
    514 A.2d 901
    Rodney M. WOLF v. Gail Marie WOLF v. John E. WOLF and Grace V. Wolf. Appeal of Rodney M. WOLF and John E. Wolf and Grace V. Wolf.
    Superior Court of Pennsylvania.
    Argued May 20, 1986.
    Filed Sept. 2, 1986.

      Larry W. Wolf, Hanover, for appellants.
    Walton V. Davis, Gettysburg, for appellee.
    Before CIRILLO, President Judge, and TAMILIA and HESTER, JJ.
   CIRILLO, President Judge:

This is an appeal from an order of the Court of Common Pleas of Adams County which dismissed appellants’ exceptions and adopted the master’s report regarding equitable distribution in bifurcated proceedings in an action for divorce. Judgment was entered upon praecipe in the amount of $6,927.55 in favor of defendant-appellee Gail Raab Wolf and against additional defendants-appellants John and Grace Wolf (hereinafter “parents”), and in favor of defendant-appellee and against plaintiff-appellant Rodney Wolf in the amount of $2,767.58 plus specified items of personalty. This timely appeal followed.

Rodney and Gail became engaged to be married in March 1976. The actual marriage occurred three and one-half years later in October, 1979. During their long engagement, Rodney and Gail both began collecting household items in contemplation of marriage. All of the items purchased prior to marriage subsequently became the property of the marital entity.

In July, 1977, over a year after Rodney and Gail became engaged, Rodney approached his father and informed him that he wished to buy a home but was unable to obtain financing from a bank. Rodney’s parents then purchased the home Rodney and Gail had previously inspected. The parents obtained a mortgage for 100 percent of the purchase price for which they put up their own home as collateral. Rodney and Gail have had exclusive possession of the house since the date of purchase. Though the couple did not move in until after their marriage, both Rodney and Gail did extensive work on the house in preparation for their eventual occupancy.

The couple made a number of substantial and costly improvements to the home both before and after their marriage. Prior to their marriage, they installed new aluminum siding, a well pump, kitchen and bathroom floors, insulation, kitchen cabinets, a suspended ceiling in the master bedroom, and a textured ceiling in the kitchen. After the pair married and moved into the home, they restored the foundation wall in the basement, installed new garage doors and electric door openers, and landscaped the surrounding yard area. The total cost of these improvements was approximately $15,555.00. Both Rodney and Gail contributed to payment of this bill.

In addition to these substantial improvements, Rodney and Gail were also responsible for all expenses associated with the maintenance of the home: mortgage payments, taxes, utilities, insurance, and settlement costs. None of the purchase price nor any expense related to ownership of the property was paid by John and Grace Wolf, Rodney’s parents and the titled owners.

Upon the master’s recommendations, the trial court determined that the facts of this case warranted the imposition of a resulting trust in favor of Rodney and Gail. In addition, the court found that the parents would be unjustly enriched if they were permitted to retain the property without compensating Gail for her contributions to the improvements. Noting that both Gail and Rodney treated the property as their own, the court held that unjust enrichment would occur if the parents were to reap the benefits of the mortgage payments and improvements without reimbursing Gail. We agree; and accordingly, we affirm.

Appellants raise a number of issues on appeal: 1) whether Section 301 of the Divorce Code, 23 P.S. § 301, confers jurisdiction upon a master in divorce to recommend, and the trial court to confirm, a judgment imposing a resulting trust against real estate titled in the name of individuals who are not parties to the divorce action; 2) whether the trial court’s adoption of the master’s findings of fact support a judgment imposing a resulting trust against real estate titled in the name of additional parties; 3) whether the master’s findings of fact adopted by the trial court support a judgment of unjust enrichment against the parents as additional parties; and 4) whether the trial court abused its discretion in compelling Rodney to submit to either of two buy-out options: a) pay Gail 50 percent of the value of all personal property in Rodney’s possession, or b) sell all the personal property and pay Gail one-half of the proceeds.

We will first address the fundamental question of jurisdiction. The parents contend that Section 301 of the Divorce Code does not allow a court hearing a divorce action to hear claims of unjust enrichment or resulting trust against individuals not parties to the divorce. The parents allege that the master clearly exceeded his authority when he recommended the imposition of a resulting trust which radically affected their rights in the real property.

A review of the Rules of Civil Procedure and various sections of the Divorce Code indicates otherwise. Section 301 of the Divorce Code is the jurisdictional provision and it states in pertinent part:

(a) The courts of this Commonwealth ... shall have original jurisdiction in cases of divorce____

23 P.S. § 301. In addition, subsection (a)(5) provides that the court has jurisdiction over “[ajny other matters pertaining to such ... divorce ... authorized by law and which fairly and expeditiously may be determined and disposed of in such action.” 23 P.S. § 301(a)(5) (emphasis added). Based on the fact that Gail’s claims for equitable distribution, resulting trust, and unjust enrichment directly hinged upon determination of the status of the property into which Gail and Rodney moved after their marriage, the matter was closely related to and obviously pertained to the divorce action. The nature of the parents’ interest in the property needed to be resolved so that the property rights of Rodney and Gail could be determined. In addition, the matter was fairly determined in the divorce action. The additional parties, the parents, were free to present evidence and were afforded the same protections as had the claims for resulting trust and unjust enrichment been maintained separately. The parents had the opportunity to be heard and to question Gail.

Rule 1920.34 of the Pennsylvania Rules of Civil Procedure provides additional support. This rule states in pertinent part:

At any state of an action, the court may order the joinder of any additional person who could have joined or been joined in the action and may stay the proceedings in whole or in part until such person has been joined.

Pa.R.C.P. 1920.34 (Joinder of Parties — Divorce or Annulment Actions).

The note to this rule, states: “The joinder of persons other than husband and wife may be essential in claims ... where persons other than the parties have an interest in property which is the subject matter of distribution.” Pa.R. C.P. 1920.34 Note. Most of us do not operate in a vacuum. Therefore, even in divorce actions, which for the most part involve a husband and wife, situations arise when the divorce affects not only the children of the parties but those individuals with whom the parties own real estate or operate a business. Obviously, the rights of these people must be protected. In addition, one spouse may not use the existence of these individuals on the periphery as a shield against fulfillment of his divorce obligation, such as child support, alimony, or equitable distribution.

While it is clear from our reading of the above-cited provisions that Adams County had jurisdiction over the parents as additional parties and was free to determine the claims of unjust enrichment and resulting trust, the question that now arises is whether the master in divorce had the authority to make recommendations concerning such issues. Appellants contend that the master lacks the authority to recommend a judgment imposing a resulting trust against the real estate of additional individuals not parties to the divorce.

We disagree. Rule 1920.51 of the Pennsylvania Rules of Civil Procedure clearly provides:

(a)(1) The court may hear the testimony or, upon its own motion or the motion of either party, may appoint a master with respect to all or any of the matters specified in subdivision (a)(2)(i) to hear the testimony and return the record and transcript of the testimony to the court, together with a report and recommendation.

Pa.R.C.P. 1920.51(a)(1) (emphasis added). This provision obviously allows that all actions for divorce or claims which may be joined with the action for divorce or any aspect of the action or claims may be referred to a master. We have already determined that the unjust enrichment and resulting trust claims were properly before the Adams County court. That court was therefore free to appoint a master to hear testimony on such claims.

Appellants next argue that the findings of fact do not support the imposition of a resulting trust. The parents allege that the doctrine of resulting trusts is founded upon a presumption of the intent of the parties at the time of the transaction in question. The parents argue that it was not their intention nor was any evidence presented to show their intention that Rodney and Gail be the beneficial owners of the property in question. Additionally, they assert that the absence of any written document evidencing this intention is fatal to appellee’s claims.

A review of the master’s findings of fact and the record reveals the propriety of the master’s recommendations and the trial court’s imposition of the resulting trust. The facts of this case present a classic example of resulting trust. The case of Grubb v. Delathauwer, 274 Pa.Super. 511, 418 A.2d 523 (1980) is dispositive.

In that case, the Grubbs had executed an agreement to purchase real estate but were unable to obtain financing. After they were unsuccessful in obtaining financing, the Grubbs turned to the Delathauwers. The Delathauwers, Clara Grubb’s parents, obtained the necessary financing and titled the property in their names. In order to get the mortgage, the Delathauwers used the recently purchased property as collateral and offered another piece of real estate which they owned as collateral security for the loan. The Grubbs paid the closing costs, all mortgage payments, utility payments, and taxes on the property. However, the Delathauwers did pay the sum of $4,200.00 from the proceeds of the sale of another piece of property against the mortgage indebtedness. The Delathauwers never had possession of the property.

When the Delathauwers attempted to sell the property while the Grubbs were living there, the Grubbs initiated an action in equity seeking the imposition of a resulting trust by the parents for their benefit. The trial court ordered that the parents transfer legal title to the Grubbs upon the Grubbs’ repayment of the balance of the $4,200.00 which they owed to the Delathauwers.

On appeal, this Court affirmed the decision of the trial court. We stated that when “a transfer is made to one person and the purchase price is paid by another, a resulting trust arises in favor of the person by whom the purchase price is paid.” Grubb, 274 Pa.Super. at 515, 418 A.2d at 525 (quoting Masgai v. Masgai, 460 Pa. 453, 458, 333 A.2d 861, 864 (1975)). Accord, Restatement (Second) of Trusts § 440 (1959). The Court concluded that the facts taken together provided ample support for the trial court’s determination that the Delathauwers’ financial intervention in the purchase of the property constituted a loan to the Grubbs, and that the Delathauwers held legal title to the property as trustees for the Grubbs.

The similarities between the case sub judice and Grubb compel us to find that the trial court acted properly in the instant case in imposing a resulting trust. The facts clearly indicate that the parents were to acquire title for the. benefit of Rodney and Gail, and to hold that title only until Rodney and Gail were able to stand on their own financially. See, e.g., Nirmaier v. Hamilton, 467 Pa. 355, 356 A.2d 788 (1976).

The parents argue that the present case is distinguishable from Grubb on a number of points: 1) the Grubbs signed a written sales agreement to purchase the real estate prior to going to the Delathauwers for financing; 2) there is no evidence or finding that Rodney and Gail contributed to the settlement costs; and 3) Rodney and Gail were not married at the time of purchase. While these points are valid distinctions, we are not persuaded that they compel removal of the instant case from the dictates of Grubb.

More specifically, on the question of settlement costs, the undisputed testimony of Gail was that Rodney paid the settlement expenses. Additionally, while Gail and Rodney were not married at the time of purchase, they had been engaged to be married for over a year at that time. Clearly, Grubb is controlling in this case.

The parents next argue that the master’s findings do not support an adjudication of unjust enrichment. They assert that Gail failed to prove by clear and convincing evidence her unjust enrichment claim. The parents contend that the master failed to make a finding that they knew Gail was independently contributing to the mortgage payments, taxes, repairs, utilities, and expenses or how much she did contribute if in fact she did.

Essential elements of “unjust enrichment” are benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment for value. Mountain Medical Inc. v. City of Colorado Springs, 43 Colo.App. 391, 608 P.2d 821 (1985). Clearly, the doctrine is applicable in the present case. It would be inequitable to allow the parents to retain the benefits of Gail and Rodney’s work on the home without reimbursing the young pair for their expenses.

The doctrine of unjust enrichment is essentially equitable in nature. In the present case, equity requires us to direct the parents to make restitution to Rodney and Gail in the amount of the benefit conferred upon the parents.

The master was unable to make a determination of exactly how much Gail and Rodney contributed individually to the various improvement expenses, the mortgage payments, taxes, insurance, or utilities because the couple paid cash for the majority of these costs. However, Rodney and Gail were both employed at the time of purchase and throughout the remaining period. Therefore, it was reasonable for the master and the trial judge to conclude that both Gail and Rodney contributed to the payment of the bills on a 50-50 basis. The parents cannot avoid this claim of unjust enrichment by merely claiming that they had no idea Gail was contributing to the maintenance of the house. The parents knew that the mortgage payments, the utility bills, and the taxes on the property were being paid because they, as titled owners, never received notice of default on any of these items. While the parents may not recognize this as a benefit conferred upon them, payment of all the bills associated with home ownership would certainly be viewed by most homeowners as a benefit.

Finally, Rodney contends that the trial court abused its discretion in forcing him to choose between two buy-out options. Rodney asserts that it was error for the master not to make specific findings as to why a division of the property could not be effectuated. He contends that Gail was interested in cash only and that the master acceded to her wishes.

We agree with Rodney that the trial court is required to make specific findings as to why a division of the marital property cannot be effectuated before making or approving a buy-out remedy in dividing property of the parties. Barletta v. Barletta, 506 Pa. 404, 485 A.2d 752 (1984). Therefore, the order of the trial court is reversed and the case is remanded for proceedings consistent with this opinion.

The judgments in favor of both Gail Raab Wolf and Rodney Wolf against John and Grace Wolf on the resulting trust and unjust enrichment claims are affirmed. The judgment of the trial court for equitable distribution of personal property is reversed and remanded to the trial court for specific findings as to why the personal property cannot be divided or why distribution of the household goods and furnishings in kind cannot be accomplished. Jurisdiction relinquished.


author: CAVANAUGH, Judge:

text:
    514 A.2d 906
    Robert HALLIDAY, Executor of the Estate of Isabelle Halliday, Deceased; Robert Halliday, Ind.; and Deborah Halliday, Appellants, v. William R. BELTZ, M.D.; John M. Burks, M.D.; R. Hyman and R. Lukas, Ind. and as Employees of Schopfer and Ginter, Asc.; Schopfer and Ginter, Asc; and the Williamsport Hospital, Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 27, 1986.
    Filed Sept. 2, 1986.

      Robert Vesely, Williamsport, for appellants.
    R. James Reynolds, Jr., Harrisburg, for Beltz, appellee.
    Robert A. Eckenrode, Williamsport, for Burks, appellee.
    Gary Weber, Williamsport, for Schopfer, appellees.
    Before CAVANAUGH, TAMILIA and CERCONE, JJ.
   CAVANAUGH, Judge:

The lower court dismissed appellants’ cause of action for negligent infliction of emotional distress. The court stated in its opinion in support of its order that appellants failed to state a cause of action for negligent infliction of emotional distress in that they did not plead: (1) bodily harm and (2) that they observed the injury to the decedent. Appellant brings this appeal arguing: (1) that the lower court erred in dismissing their complaint and (2) that, in the alternative, the lower court should have allowed the appellants to amend their complaint. For the reasons set forth below, we affirm the lower court’s order.

This appeal arises from a medical malpractice lawsuit. Isabelle Halliday, who was the wife of appellant, Robert Halliday, and the mother of appellant, Deborah Halliday, entered Williamsport Hospital for elective surgery in June of 1984. Complications arose following the surgery which eventually resulted in her death. Robert Halliday, as executor of the Estate of Isabelle Halliday, subsequently filed a lawsuit against several defendants alleging medical malpractice. Later, Robert Halliday, individually, and Deborah Halliday filed an amended complaint asserting claims in their own right for negligent infliction of emotional distress. Appellees filed preliminary objections to this action which the lower court sustained. Appellants appealed from this order.

In order to sustain Preliminary Objections in the nature of a demurrer, it must appear certain that upon the factual averments and all inferences fairly deducible therefrom, the law will not permit recovery by the plaintiff. Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979); Schott v. Westinghouse Electric Corporation, 436 Pa. 279, 259 A.2d 443 (1969). Because we believe that the law of Pennsylvania will not permit recovery by plaintiffs under their factual averments and the inferences deducible therefrom, we affirm the lower court’s decision.

Appellants argue that the lower court erred when it ruled that they could not plead a claim for negligent infliction of emotional distress unless they could show that they had directly witnessed the negligent surgery performed by the appellees and had also suffered physical harm. They assert that a plaintiff need not allege that he viewed the specific negligent acts of a defendant in order to recover for negligent infliction of emotional distress. They further assert that under Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), the plaintiff need not allege that he suffered bodily harm in order to plead a cause of action for negligent infliction of emotional distress.

We disagree with appellant because we believe that no Pennsylvania case, including Sinn, has stated that you need not witness the negligent action in order to recover under negligent infliction of emotional distress. While it is true that in Sinn the Pennsylvania Supreme Court modified the observance of the tort requirement, it is not true that it eliminated the requirement altogether. In Sinn, the court merely replaced the requirement altogether. In Sinn, the court merely replaced the requirement of observation within the “zone of danger” with observation and a foreseeability analysis. That is, a plaintiff could bring a cause of action where, he observed the act, and where his injuries “ ... were of a nature reasonably foreseeable under the circumstances alleged.” Id. 486 Pa. 146, 173, 404 A.2d 672, 686 (1979). Among the “foreseeability” elements as enunciated in Justice Nix’s opinion is whether the emotional impact resulted from the “sensory and contemporaneous observance of the accident, as contrasted with hearing of the accident from another after its occurrence.” 486 Pa. at 170, 404 A.2d at 685.

Also, in Cathcart v. Keene Industrial Insulation, 324 Super. 123, 471 A.2d 493 (1984), we stated that:

The developing case law clearly indicates that a cause of action will not lie for emotional distress negligently caused by a bystander, unless the bystander personally observes an identifiable traumatic incident.

Id., 324 Pa.Superior Ct. at 150, 471 A.2d at 507.

Appellants freely admit that they did not view the actual surgery in this case (Appellant’s brief at 21). While appellants were in the hospital during the operation itself and the post-operative emergency remedial measures, they never viewed any of the actual surgery. We do not believe that appellant’s complaint meets the “sensory and contemporaneous observance of the accident” or the personal observation requirements of Pennsylvania case law. Sinn, supra; Cathcart, supra. Accordingly, we believe appellant’s complaint was deficient with respect to this element.

We recognize that the requirement of averring bodily or physical harm, or a severe physical manifestation of mental distress in a complaint for negligent infliction of emotion distress, is not totally clear in this Commonwealth. In Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), Justice Nix, indicated that “psychic damage” would be sufficient “injury” in this type of cause of action. Id. 486 Pa. at 157, 404 A.2d at 678. In a later case, Yandrick v. Radic, 495 Pa. 243, 433 A.2d 459 (1981), Justice Nix characterized the Sinn holding as one involving a plaintiff who “ ... sustained emotional shock resulting in mental as well as physical injuries to the witnessing plaintiff.” Id. 495 Pa. at 249, 433 A.2d at 462 (emphasis added). This would arguably limit his earlier holding to cases involving physical injuries. Later allied cases would require an averment of physical injury as still necessary. In Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 437 A.2d 1236 (1981), this court adopted § 436 of the Restatement (Second) Torts which states:

If the actor’s conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance alone, without bodily harm or other compensible damage, the actor is not liable for such emotional distress.

In Banyas, Judge Brosky, writing for the majority, stated: “Appellants’ complaint avers no physical harm. We find it does not state a cause of action for negligent infliction of emotional distress [citations omitted].” Id. 293 Pa.Super. at 129, 437 A.2d at 1239. More recently in Cathcart, supra, this court, sitting en banc, held that “unless the plaintiff is able to allege some physical injury or some medically-identifiable effect linked to [the alleged tort], her claim for negligent infliction of emotional distress is not legally cognizable.” 324 Pa.Super. at 152, 471 A.2d at 508. In Cathcart, the plaintiff sought damages for emotional distress caused by her contact with her husband’s clothing, which had been contaminated by asbestos. There, this court again relying on § 436(A) of the Restatement, affirmed the decision of the lower court sustaining the demurrer because the plaintiff could not allege that she had suffered any physical injury. We conclude that the court was correct in dismissing the complaint since appellants did not observe the alleged tortious conduct. While the weight of authority would require an allegation of physical injury, we need not decide this issue in the context of this case.

Appellants also argue that the lower court should have allowed them to amend their complaint. The lower court stated that, under the facts as set forth in appellants’ complaint and as supplemented during argument, appellants could not state a cause of action. Therefore, it would not allow appellants to amend their complaint.

We believe that it would be problematic to allow appellants to amend their complaint at this stage of the case. First, appellants have set forth facts in their briefs which are not part of the record. Appellants would have us allow an additional amendment to their complaint based on facts not part of the record whose accuracy is not verified. We do not believe this is permissible. See, Auman v. Juchniewitz. 312 Pa.Super. 98, 458 A.2d 254 (1983). See also, Pa.R.A.P. 1921.

Secondly, while the right to amend pleadings is to be construed liberally, it is not absolute. Junk v. East End Fire Dept., 262 Pa.Super. 473, 396 A.2d 1269 (1978). We note that this would be appellants’ third Amended Complaint. Seriatim amendments should not be allowed absent a showing of reasonable entitlement to repeated restatements of an alleged cause of action.

Finally, we do not believe, even accepting as true the additional facts appellants present in their briefs, that an amendment would serve a useful purpose. Appellants have admitted facts which make their cause of action defective on its face. Therefore, an amendment would serve no useful purpose even if granted. Searfoss v. School District of White Haven, 397 Pa. 604, 156 A.2d 841 (1959).

Order affirmed.

      . We note that appellee, Beltz, filed a motion to quash this appeal arguing that the lower court’s order was not a final order. Appellee argued that under Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983), appellant could not appeal this order as his count was but an alternate theory of recovery. Praisner held that a party may appeal where some, but not all of his counts, are dismissed provided those counts are a separate cause of recovery. The motion to dismiss this was denied by a vote of the full court which cited Praisner, supra.

      . Justice Nix’s Opinion was joined by Justice Manderino. Then Chief Justice Eagen wrote a concurring opinion while Justice Larsen concurred in the result without writing a separate opinion. Justice Roberts wrote a dissenting opinion which was joined by Justice O’Brien. The plurality of opinions arising from this case may account for some of the uncertainty in this area of tort law.


text:
    514 A.2d 910
    COMMONWEALTH of Pennsylvania v. John F. LEARN, Appellant.
    Superior Court of Pennsylvania.
    Argued June 4, 1986.
    Filed Sept. 2, 1986.
    Bruce L. Getsinger, Erie, for appellant.
    Timothy Lucas, Assistant District Attorney, Erie, for Commonwealth, appellee.

      Before CIRILLO, President Judge, and TAMILIA and POPOVICH, JJ.
   CIRILLO, President Judge:

This is an appeal from an order of the Erie County Court of Common Pleas denying appellant, John F. Learn’s, motion to dismiss on the basis of double jeopardy. Appellant was charged with delivery of a controlled substance (marijuana), possession of a controlled substance and possession with intent to deliver. After a five hour trial, the jury retired for deliberations. It deliberated for a day and one-half and then informed the court that it was deadlocked. Defendant’s counsel specifically requested that the court not grant a mistrial but rather send the jury back for further deliberations with appropriate instructions. The trial judge briefly discussed the matter -with the jury foreman, asked a general question of the remaining jurors and then declared a mistrial. After receiving notice that he would be retried in the court’s next term, Learn filed a motion to dismiss on the basis of double jeopardy which the court subsequently denied. This timely appeal followed.

On appeal, appellant contends that the trial court erred in determining that there was a “manifest necessity” for the declaration of a mistrial on the basis of a deadlocked jury. Appellant argues that the jury only deliberated a relatively short period of time. Additionally, he asserts that the trial court failed to conduct a sufficient colloquy to determine whether it was possible for the jury to reach a verdict.

Due to the recent Supreme Court case, Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986), this appeal is not properly before this Court. The issue in Brady, as framed by the Supreme Court, was whether an interlocutory appeal based on double jeopardy grounds was proper when the trial court specifically determined that the double jeopardy grounds are frivolous.

Prior to Brady, the viability of an interlocutory appeal based on double jeopardy grounds was governed by Com monwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977). The Court in Bolden determined that an interlocutory appeal based on these grounds was proper due to the nature of the double jeopardy right and the need for pre-trial vindication. The Court stated that “the basic purpose of the double jeopardy clause mandates that a defendant who has a meritorious claim have an effective procedural means of vindicating his constitutional right to be spared an unnecessary trial [and] ... to subject an individual to the expense, trauma and rigors incident to a criminal prosecution a second time offends the double jeopardy clause.” Bolden, 472 Pa. at 631-32, 373 A.2d at 104. (Emphasis added). Therefore, the Bolden Court concluded that exceptional circumstances exist to warrant immediate appellate review of a trial court’s denial of a defendant’s motion to dismiss based on double jeopardy grounds.

Pursuant to Brady, the Supreme Court has retreated somewhat from its position as espoused in Bolden. The Brady Court determined that an interlocutory appeal based on double jeopardy grounds is not permissible when the trial court finds that such grounds are frivolous. The Court concluded that under such circumstances the interlocutory appeal is “ ... unwarranted and review must be sought by means of a direct appeal following retrial.” Brady, 510 Pa. 338, 508 A.2d at 287 (emphasis added). The Brady Court reasoned that Bolden, in combination with the automatic stay of proceedings pending on appeal, resulted in indefinite delays of legitimate prosecutions in many cases.

In response to this problem of unnecessary delays, the Brady Court promulgated a new procedure for these types of appeals. If the defendant asserts his right to a double jeopardy claim before the trial court, the court must determine the merits of the claim. If the trial court concludes that the defendant’s claim is “frivolous,” the double jeopardy claim is dismissed and a retrial is permitted. After the trial court considers the motion and makes written findings that the motion is frivolous, the defendant does not have a right to immediate appellate review. However, “absent such a finding [of frivolousness], an appeal may be taken from the denial of the motion.” Brady, supra, 510 Pa. 346, 508 A.2d at 291.

While vitiating the defendant’s right of appeal should the trial court find the double jeopardy claim to be frivolous, the Court allowed for a challenge to the findings of frivolity in the context of a request for a stay from an appellate court. The Court found that “this procedure [will] provide [ ] at least a preliminary review by an appellate judge of the findings of frivolousness prior to trial.” Brady, supra, 510 Pa. at 345, note 4, 508 A.2d at 291, note 4.

If a defendant opts to challenge the finding of frivolousness in the context of a request for a stay from an appellate court, the request will have to be made directly to the Supreme Court. Under Municipal Publications v. Court of Common Pleas of Philadelphia, 507 Pa. 194, 489 A.2d 1286 (1985), the Supreme Court found that when there is no appeal pending before the Superior Court, and the Superior Court’s appellate jurisdiction is not infringed upon by the trial court’s actions, there is no predicate for the Superior Court’s exercise of jurisdiction to issue a writ of prohibition. In Municipal Publications, the Court stated that “the legislature has limited the Superior Court’s original jurisdiction to instances in which an appeal has been lodged in that court and it becomes necessary to mandate or prohibit action by a lower court in aid of the Superior Court’s effective exercise of its appellate jurisdiction.” Municipal Publications, 507 Pa. at 199, 489 A.2d at 1288.

In a request for a stay in the context for which Brady provides, the Superior Court would lack jurisdiction to issue a writ of prohibition. No appeal would be pending before the Court in that situation. Therefore, following the dictates of Municipal Publications, in a request for a stay which arises from a trial court’s determination that a motion to dismiss on grounds of double jeopardy is frivolous, the defendant must go directly to the Supreme Court.

In the case sub judice, appellant’s motion to dismiss on grounds of double jeopardy was denied by the trial court absent any written findings that the motion was frivolous. Therefore, on an initial reading of the case, it would appear that the appeal is properly before this Court and the retrial of Learn should be stayed pending disposition of the appeal. However, since we are a Court of review and not a hearing Court, we must give the trial court the opportunity to make the requisite factual determination of whether the claim is frivolous. Spatz v. Nascone, 283 Pa.Super. 517, 424 A.2d 929 (1981). Employing this approach, we will be complying with the spirit of Brady by disposing of those appeals found to be frivolous and allowing direct appeals in those situations where appropriate.

Accordingly, we remand this case to the trial court for written factual findings on the questions of the merits of this claim of double jeopardy. Jurisdiction is relinquished.

      . While Bolden was a nondecisional opinion, a majority of the members of the Supreme Court subsequently agreed with the proposition espoused in that case regarding the immediate appealability of the denial of a motion to dismiss on double jeopardy grounds. Commonwealth v. Haefner, 473 Pa. 154, 373 A.2d 1094 (1977).

      . Pa.R.A.P. 1701 governs automatic stays. This provision provides in pertinent part that “ ... after an appeal is taken or review of quasijudicial order is sought, the trial court ... may no longer proceed further in the matter.” Pa.R.A.P. 1701(a).


author: WIEAND, Judge: DEL SOLE, Judge,

text:
    514 A.2d 912
    Gerald J. DUNEGAN, Appellant, v. APICO INNS OF GREEN TREE, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued March 25, 1986.
    Filed Sept. 2, 1986.

      Joseph Colavecchi, Clearfield, Stephen L. Dugas, Johns-town, for appellee.
    Before ROWLEY, WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

The sole issue in this appeal is whether a motor inn which provides an area in which its patrons can park their automobiles becomes liable on a theory of implied contract to a patron whose vehicle is stolen by a third person. The trial court held that under the circumstances of the instant case there could be no such liability and entered summary judgment in favor of the owner of the motor inn. We affirm.

On Friday, June 15, 1984, Gerald J. Dunegan, a dentist, together with his wife and two dental assistants, drove to the Green Tree Holiday Inn, a motor inn owned by appellee, Apico Inns of Green Tree, Inc., for the purpose of attending a dental seminar. Upon arrival, Dunegan registered at the front desk. Prominently displayed on the front desk was a sign which said: “We [the inn] are not responsible for damage to or theft from any parked automobile.” After completing his registration, Dunegan parked his vehicle, a 1983 Oldsmobile, on a paved, unfenced lot provided by the inn for parking by its guests. Dunegan paid no separate fee for parking his vehicle, and the motor inn did not issue a claim ticket. In addition, the motor inn did not employ parking lot attendants to supervise the entrances and exits of the parking area. After Dunegan had selected a parking place, he locked the doors to his automobile, retaining the keys, and proceeded to his room. Later that evening or early the next morning, his Oldsmobile was stolen from the lot. When the vehicle was later found, it had been stripped of its parts and was appraised as a total loss.

Dunegan commenced an action against the owner of the motor inn to recover the value of the automobile and its contents. The complaint averred two theories of recovery: 1) breach of a contract of bailment; and 2) negligent breach of an implied contractual duty to prevent the theft of automobiles from the parking lot. The motor inn owner moved for summary judgment. During oral argument thereon, Dunegan abandoned the bailment theory and elected to proceed against the motor inn owner solely on the basis that the owner of the motor inn had negligently breached a duty of care imposed by an implied contract. The trial court entered summary judgment for the owner of the motor inn, holding that there was no implied contract requiring that it safeguard appellant’s automobile against theft by the independent act of a third person. Dunegan appealed.

“Summary judgment ‘shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Morgan v. Johns-Manville Corp., 354 Pa.Super. 58, 61, 511 A 2d 184, 186 (1986) quoting Pa.R.C.P. 1035(b).

The duty of care owed by the operator of a parking lot is determined according to the legal relationship existing between the operator of the lot and an individual who parks his or her automobile there. 38 Am.Jur.2d Garages, and Filling and Parking Stations, § 29. See: Taylor v. Philadelphia Parking Authority, 398 Pa. 9, 11-12,156 A.2d 525, 526-527 (1959); Sparrow v. Airport Parking Co. of America, Inc., 221 Pa.Super. 32, 35-36, 289 A.2d 87, 90 (1972). See also: Lewis v. Ebersole, 244 Ala. 200, 201,12 So.2d 543, 544 (1943). Pennsylvania courts have recognized three types of legal relationships which may be created. The distinguishing factor is the extent to which the parking lot operator has exercised control over the vehicles which have been parked upon its lot. See: Taylor v. Philadelphia Parking Authority, supra; Sparrow v. Airport Parking Co. of America, Inc., supra.

The first relationship recognized by the courts is that of bailor and bailee. It exists “where the garage attendants collect fees, assume control of the cars, park them and move them about within the garage as they find convenient, the keys are left in the cars and tickets are issued as means of identifying cars upon redelivery.” Taylor v. Philadelphia Parking Authority, supra, 398 Pa. at 12, 156 A.2d at 526-527. Where this relationship exists, the lot owner is generally responsible for loss or damage to vehicles under its control. Id., 398 Pa. at 12, 156 A.2d at 527.

The second type of relationship, that of lessor-lessee, exists “where an owner rents space in a parking lot, drives his automobile therein, locks it or not as he chooses, and for all practical purposes retains control thereof.” Id., 398 Pa. at 12, 156 A.2d at 526. Under this relationship, the lessee acquires an interest in a designated place on the lot for a fixed or definite period of time. See: Lewis v. Ebersole, supra at 201, 12 So.2d at 544; Equity Mutual Insurance Co. v. Affiliated Parking, Inc., 448 S.W.2d 909, 914-915 (Mo.App.1969). A lessor of automobile parking privileges “is not [a] bailee of the parked car and consequently is under no duty to guard against loss by theft.” Taylor v. Philadelphia Parking Authority, supra, 398 Pa. at 11, 156 A.2d at 526. See: 9 Williston on Contracts, § 1065 (3d ed. 1967).

The third type of legal relationship which may be created is that of licensor-licensee. See: Sparrow v. Airport Parking Co. of America, Inc., supra, 221 Pa.Superior Ct. at 38-39, 289 A.2d at 91. Unlike a lease, a license does not confer any interest in the parking lot to the automobile owners who park there; rather, it gives them only “the right to use a portion of the lot for the strictly limited purpose of parking their automobiles for a period of time entirely within their own control.” Id., 221 Pa.Superior Ct. at 39, 289 A.2d at 91. See: Equity Mutual Insurance Co. v. Affiliated Parking, Inc., supra. Apart from this distinction, a license is similar to a lease in that it creates no affirmative duty of care on the part of the owner of the parking lot, as licensor, to protect against loss by theft. See: Lewis v. Ebersole, supra; Porter v. Los Angeles Turf Club, Inc., 40 Cal.App.2d 840, 105 P.2d 956 (1940);, Wall v. Airport Parking Co. of Chicago, 88 Ill.App.2d 108, 232 N.E.2d 38 (1967), aff'd, 41 Ill.2d 506, 244 N.E.2d 190 (1969); Broadview Apartments Co. v. Baughman, 30 Md.App. 149, 350 A.2d 707 (1976); McFarland v. C.A.R. Corp., 58 N.J.Su per. 449, 156 A.2d 488 (1959); Ellish v. Airport Parking Co. of America, Inc., 42 A.D.2d 174, 345 N.Y.S.2d 650 (1973), aff'd, 34 N.Y.2d 882, 359 N.Y.S.2d 280 (1974). A duty to protect the licensee’s automobile from theft will arise only if the licensor has undertaken responsibility for safeguarding the vehicle as part of a contractual agreement between the parties. See: Sparrow v. Airport Parking Co. of America, Inc., supra, 221 Pa.Superior Ct. at 39, 289 A.2d at 91. See also: Lewis v. Ebersole, supra at 201, 12 So.2d at 544.

In the instant case, Dunegan did not surrender possession of his automobile to the inn. He retained the keys to his car, and the vehicle was accessible to him throughout his stay. Thus, no bailment was created. Dunegan was granted no more than a privilege to park his vehicle on the lot because of his patronage of the inn. Under these circumstances, the legal relationship existing between the motor inn and Dunegan was that of licensor-licensee.

As a licensor, the owner of the motor inn was under no duty to protect the vehicles of its guests from theft. Appellant argues, however, that the motor inn owed him a duty to safeguard his automobile from theft which arose by implied contract. In support of this assertion, he relies upon the decision of this Court in Sparrow v. Airport Parking Co. of America, supra. This reliance is misplaced.

In Sparrow, the plaintiff’s automobile had been stolen from a public parking lot operated by the defendant. Upon entering the lot, the plaintiff-owner had been issued a claim ticket from an automatic vending machine. The ticket contained the following printed statement: “This ticket must be presented to identify car.” After taking the ticket, the plaintiff selected a parking place, locked the vehicle’s doors, and left with the keys. Although the lot was completely enclosed by a fence and its exits monitored by the defendant’s employees, the plaintiff’s automobile was missing from the lot upon his return eleven days later. The plaintiff commenced an action against the parking lot owner to recover for the loss of his car. He alleged, inter alia, that the defendant had violated the terms of an implied contract existing between the parties which obligated the defendant to exercise care to prevent the theft of his automobile. The trial court entered summary judgment for the operator of the parking lot, and the plaintiff appealed. The Superior Court reversed. In doing so, it noted that a licensor-licensee relationship had existed between the parties when the plaintiffs car was taken from the parking lot. Id., 221 Pa.Superior Ct. at 39, 289 A.2d at 91. The Court observed that a contract had been entered when the plaintiff took the claim ticket from the automatic vending machine. Id. When the owner took the ticket, the Court held, the plaintiff had agreed to pay the posted rate in return for the privilege of parking on the defendant’s lot and the operator of the lot had agreed to exercise care in protecting the vehicle. Id., 221 Pa.Superior Ct. at 39-41, 289 A.2d at 91-92. The Court opined that although there was no written agreement between the parties, the terms of the contract could be implied from the circumstances surrounding its formation. Id. These terms, the Court held, could be found from the following: 1) the lot had been enclosed by a fence; 2) the defendant had maintained a policy requiring the presentation of a claim ticket before any vehicle could be removed from the lot; and 3) the defendant had employed attendants to supervise the exits to the lot twenty-four hours a day. Id., 221 Pa.Superior Ct. at 41, 289 A.2d at 92. From these circumstances, the Court held, there were sufficient facts to permit the trier of the facts to conclude that the defendant had impliedly contracted to protect the plaintiff’s automobile from theft while it remained on the lot. Id.

The circumstances in Sparrow are different than the facts of the instant case. Unlike the plaintiff in Sparrow, Dunegan paid no charge for the privilege of parking on the motor inn’s parking lot. Rather, the privilege of using the lot was accorded gratuitously to him as an incident of his patronage of the motor inn. Thus, in contrast to Sparrow, there existed no “contract” to safeguard the vehicle while it was parked at the motor inn. The absence of an agreement to safeguard appellant’s automobile was confirmed by facts which demonstrated unequivocally that the owner of the motor inn had assumed no responsibility for safeguarding vehicles which had been parked on its lot. Thus, by a sign posted in its lobby, the motor inn had expressly disavowed any liability for the theft of automobiles from its parking lot. Moreover, unlike the parking lot operator in Sparrow, the inn had constructed no fence around its parking area, had not issued any claim checks to guests parking on the lot, and had not employed attendants to monitor the exits.

Appellant has been unable to point to any contractual duty, express or implied, which required the motor inn to safeguard his vehicle against theft by a third person. In the absence thereof, the appellee-owner cannot be held liable for the theft of the dentist’s automobile. Because the motor inn owner was entitled to judgment as a matter of law, the trial court properly entered summary judgment in its favor.

Judgment affirmed.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

I must respectfully dissent from the majority’s determination to reach the issue presented on this appeal.

This is an appeal from an order by the Court of Common Pleas of Clearfield County which states as follows:

Now, this 23rd day of August, 1985, it is the Order of this Court that Defendant’s Motion for Summary Judgment be and is hereby granted and judgment entered in favor of the Defendant and against Plaintiff.

The granting of a Motion for Summary Judgment is governed by Pa.R.Civ.P. 1035. This rule states in pertinent part:

(a) After the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings and any deposition, answers to interrogatories, admissions on file and supporting affidavits.

Id.

While the official docket entries which were forwarded to this Court reveal an Affidavit In Support of Motion For Summary Judgment was filed on August 8, 1985 and An Answer to Motion For Summary Judgment was filed August 15, 1985, the docket entries are silent on the filing of a Motion For Summary Judgment.

So far as we are concerned, the record is “[t]he original papers and exhibits filed in the lower court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court----” Pa.R.A.P. 1921. We have examined these papers, and [appellees] Motion is not among them. Nor, may we add, is there any reference to the Motion in the docket entries. Therefore, we may not consider the Motion. In saying this, we are aware that appellants have printed as part of their Reproduced Record what purports to be [the] Motion____ But a paper not of record may not be made of record simply by reproducing it.

Pittsburgh’s Airport Motel v. Asphalt, 322 Pa.Super. 149, 152, 469 A.2d 226, 228 (1983) (Superior Court unable to consider motion for leave to amend complaint which was not filed in trial court).

Although the trial court opinion states “Defendant has filed a Motion for Summary Judgment____” (Trial Court Opinion at 2), “a fact cannot become of record by virtue of its inclusion in the trial court opinion.” Hatalowich v. Bednarski, 315 Pa.Super. 303, 306, 461 A.2d 1292, 1294 (1983). “Our refusal to formally recognize the existence of a motion in no way indicates that we discredit the word of the trial court____ We are simply constrained from taking cognizance of this motion having been made on the basis of the record before us.” Id.

Pennsylvania Rule of Appellate Procedure 1926 provides, in part:
Correction or Modification of the Record
If any difference arises as to whether the record truly discloses what occurred in the lower court, the difference shall be submitted to and settled by that court after notice to the parties and opportunity for objection, and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident ... the appellate court ... of its own initiative may direct that the omission ... be corrected____
Our appellate courts have, on several occasions, remanded a case for an evidentiary hearing as to whether a motion had been made. Commonwealth v. Harbaugh, 253 Pa.Super. 24, 384 A.2d 957 (1978) (requesting points for charge); Commonwealth v. Walsh, 252 Pa.Super. Ill, 380 A.2d 1307 (1977) (post-verdict motions) Commonwealth v. Hobson, 481 Pa. 526, 393 A.2d 29 (1978) (motion for a change of venue).
In the interests of having this case decided on the basis of an accurate record, we follow that example. We remand the case before us for an evidentiary hearing, finding and potential supplementation to the record on whether or not a motion ... was made by appellee.

Hatalowich v. Bednarski, supra, 315 Pa.Super. at 306, 461 A.2d at 1294.

This court, in fact this very panel, in the case of Commonwealth v. Williams, 357 Pa.Super.-, 516 A.2d 352 (1986) refused to reach the merits of appellant's appeal because the record as certified did not contain notes of testimony from the trial court. I totally agreed with that decision and agree with the principle that if the record as supplied to the Appellate Court is not complete we should decline review.

Therefore, in my view the appropriate decision of this panel of this court at this time would be to either remand for completion of the record or dismiss the appeal for failure to have a complete record.

      . Although the record forwarded to this Court fails to include the defense motion for summary judgment, it is clear that such a motion was filed. Indeed, the plaintiff-appellant filed an answer thereto which is a part of the record. Moreover and in any event, the trial court considered the motion for judgment and thereafter entered summary judgment against the plaintiff-appellant. The plaintiff, therefore, is out of court, and an appeal from the judgment entered by the trial court is properly before this Court. The present state of the record does not create any impediment to meaningful review of the summary judgment or to the rendering of a decision on the issue raised by the appellant.


author: DEL SOLE, Judge:

text:
    514 A.2d 917
    COMMONWEALTH of Pennsylvania v. Richard WILLIAMSON, Appellant.
    Superior Court of Pennsylvania.
    Argued March 26, 1986.
    Filed Sept. 2, 1986.

      Leo M. Kiscaden, Brockway, for appellant.
    Before ROWLEY, WIEAND and DEL SOLE, JJ.
   DEL SOLE, Judge:

APPEAL AT 00875 PITTSBURGH 1985

The sole issue presented by Appellant for our consideration is whether the trial court erred in admitting evidence of Appellant’s blood alcohol content derived from an intoxilyzer test.

Appellant objects to the admission of this evidence on the grounds that at the time the test was administered to him the Departments of Health and Transportation had not promulgated regulations concerning calibration as required by statute; and, because of the lack of regulations, the equipment used was not calibrated prior to Appellant’s test.

Appellant was tested on an intoxilyzer Model 4011-AS on April 9, 1984. As stated by Appellant, at that time the Departments of Health and Transportation had not created regulations for calibration of breath testing equipment. Some nine months later such regulations were created. With regard to the calibration of equipment they provide:

Type A alcohol breath test equipment shall be calibrated annually within 1 year of using the breath test equipment to perform an actual alcohol breath test.

67 Pa.Code § 77.26

Appellant contends the results in his case are inadmissable because the intoxilyzer was not calibrated “before the test at issue”. Appellant’s Brief at 6. The regulations outlined above do not require the calibration testing to be performed 1 year prior to the actual alcohol breath test, but within one year of the test. This provision is in clear contrast with the requirements for accuracy inspections which state:

An accuracy inspection test shall be conducted on Type A alcohol breath test equipment within 30 days prior to using the breath test equipment to perform an actual alcohol breath test.

67 Pa.Code § 77.25

The intoxilyzer used in this case was calibrated within 1 year of the test performed on Appellant. At the suppression hearing the testing officer was questioned by Appellant’s counsel. The officer testified the machine was calibrated on January 5, 1985, following the procedures set forth in the guidelines issued by the Departments of Health and Transportation. (N.T. 3-15-85 at 6.)

Since the intoxilyzer was calibrated within one year of the test performed on Appellant in accordance with the regulations developed by the Departments of Health and Transportation, and as required by statute, 75 Pa.C.S.A. § 1547(c)(1), Appellant is not entitled to the relief requested.

APPEAL AT 00679 PITTSBURGH 1985

The appeal at number 00679 Pittsburgh 1985 is quashed. This appeal was taken from the denial of post-verdict motions, therefore, the trial court had the authority to disregard the filing of the notice of appeal from this interlocutory order and proceed to sentencing. See: Pa.R. A.P., Rules 301,1701(b)(6), 42 Pa.C.S.A.; Commonwealth v. Oliver, 309 Pa.Super. 152, 454 A.2d 1128 (1983).

Appeal at No. 00679 Pittsburgh 1985, quashed.

Appeal at No. 00875 Pittsburgh 1985, affirmed.

ROWLEY, J., dissented.

WIEAND, J., concurs in the result.

      . We are not unmindful that these regulations, in effect, give each calibration test a two year life, the year preceding and the year following the calibration test. . We assume the drafters of the regulations intended this result.


text:
    514 A.2d 919
    COMMONWEALTH of Pennsylvania v. Sean P. BURKE, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 3, 1986.
    Filed Sept. 2, 1986.
    Robert G. Kochems, Assistant Public Defender, Mercer, for appellant.

      James P. Epstein, Assistant District Attorney, Sharon, for Commonwealth, appellee.
    Before ROWLEY, CERCONE and DEL SOLE, JJ.
   DEL SOLE, Judge:

Appellant was placed in an Accelerated Rehabilitative Disposition program (ARD) after having been charged with a violation of 75 Pa.C.S.A. § 3731. Appellant’s participation in the program was supervised by an agent of the Pennsylvania Board of Probation and Parole.

On November 28, 1984, the court received a memo from the Court Administrator indicating Appellant had failed to pay required fees or attend required counselling and driving classes. The court subsequently received a memo from Appellant’s parole agent alleging Appellant’s violation of ARD conditions and requesting the court conduct a hearing on the alleged violations. A revocation hearing was held on December 19, 1984, the court entered an order withdrawing the order which placed Appellant in the ARD program thereby removing Appellant from the program and further ordering the Commonwealth to proceed with the prosecution on the charges which gave rise to Appellant’s admission into ARD. Prior to trial, Appellant filed an Omnibus Pretrial Motion, joined in by the District Attorney, wherein it was asserted that the Appellant was improperly removed from ARD because no petition for removal had been filed by the District Attorney. Following a hearing, the Motion was denied and the Appellant proceeded to trial where he was found guilty. A Motion for New Trial and for Reinstatement of ARD was filed and denied. Sentence was imposed and this appeal ensued.

The Appellant and the Commonwealth contend that a participant can be removed from an ARD program pursuant only to a motion filed by the District Attorney. We agree.

In Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985), the Supreme Court considered whether a person charged with driving while under the influence of alcohol might be admitted into an ARD program over objection by the district attorney. The Court held that ‘no criminal defendant, including a person charged with drunk driving, may move his own admission to ARD.’ Id., 508 Pa. at [312], 495 A.2d at 932. Instead, the Court concluded, the several district attorneys ‘have the sole discretion ... to move for the admission of a defendant into ARD.’ Id., 508 Pa. at [312], 495 A.2d at 932.

Commonwealth v. Brown, 350 Pa.Super. 453, 455, 504 A.2d 927, 928 (1986).

Once an individual is participating in ARD, Pa.R.Crim.P. 184(a) provides:

[i]f the attorney for the Commonwealth files a motion alleging that the defendant during the period of the program has violated a condition thereof, or objects to the defendant’s request for an order of discharge, the judge who entered the order for A.R.D. may issue such process as is necessary to bring the defendant before the Court.

Id.

In the case sub judice, not only did the attorney for the Commonwealth not file a motion pursuant to Pa.R.Crim.P. 184 but rather opposed the scheduling of the revocation hearing based on a petition of a parole agent. Our Supreme Court has held “that the rules of this Court governing ARD, ... are the sole applicable procedure by which a person charged with drunk driving may be admitted to ARD.” Commonwealth v. Lutz, 508 Pa. at 312, 495 A.2d at 936. Similarly, we conclude that the rules of Criminal Procedure governing ARD are the sole applicable procedure by which a person alleged to have violated the conditions of an ARD program may be removed.

Because the issue of whether or not Appellant should have been removed from the ARD program was not properly before the court pursuant to Pa.R.Crim.P. 184, the judgment of sentence is vacated and Appellant’s participation in the ARD program should be reinstated.

Judgment of sentence is vacated and the prior order of October 4, 1984 placing Appellant in the ARD program is reinstated. Jurisdiction relinquished.

ROWLEY, J., dissented.

      . § 3731. Driving under influence of alcohol or controlled substance, (a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
      (1) under the influence of alcohol to a degree which renders the person incapable of safe driving;
      (2) under the influence of any controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as “The Controlled Substance, Drug, Device and Cosmetic Act,” to a degree which renders the person incapable of safe driving; or
      (3) under the combined influence of alcohol and any controlled substance to a degree which renders the person incapable of safe driving; or
      (4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.

      . The trial court has indicated in its Opinion that the issue is moot as Appellant has been re-arrested for unrelated crimes, including drunk driving. Therefore, it is argued that the court could not grant Appellant’s motion for reinstatement of ARD, and were a new trial granted, the District Attorney could not move for pre-trial disposition through ARD due to Appellant’s subsequent behavior. Clearly, "a legal issue can become moot on appeal as a result of an intervening change in the facts of the case, or an intervening change in the applicable law.” Commonwealth v. Smith, 336 Pa.Super. 636, 640, 486 A.2d 445, 448 (1984). We cannot determine the status of the subsequent charges referred to by the trial court. It is possible that the charges could have been dismissed in which event the District Attorney may determine a motion should not be filed seeking Appellant’s removal from ARD. We simply cannot say the issue is moot based on the record before us.