author: BECK, Judge:

text:
    596 A.2d 851
    Richard B. GULLA, Appellee, v. Maria R. FITZPATRICK, Appellant. Richard B. GULLA, Appellant, v. Maria R. FITZPATRICK, Appellee.
    Superior Court of Pennsylvania.
    Argued April 17, 1991.
    Filed Aug. 29, 1991.

      Lawrence A. Durkin, Scranton, for appellant (at 1411) and appellee (at 2206).
    Stephen A. McBride, Milford, for appellant (at 2206) and appellee (at 1411).
    Before MONTEMURO, BECK and TAMILIA, JJ.
   BECK, Judge:

Although these cross-appeals arise out of a complicated factual and procedural scenario, the issues posed are well-defined and the proper resolution thereof is clear.

The issues on appeal are whether appellant/cross-appellee, Maria Fitzpatrick, is equitably estopped from questioning the paternity of appellee/cross-appellant, Richard Gulla, as to a child born to Ms. Fitzpatrick in March 1988, and whether the custody proceedings involving the child should be transferred to Rhode Island under the Uniform Child Custody Jurisdiction Act, 23 Pa.C.S.A. § 5341 et seq. (Supp. 1991). The trial court found that Ms. Fitzpatrick was equitably estopped and that the proceedings should be transferred. We agree on both counts and affirm.

Fitzpatrick and Gulla met in July 1987. They became sexually intimate around the middle to end of that month and their intimacy continued, albeit sporadically, until the following July. Immediately prior to Fitzpatrick’s involvement with Gulla, she had been sexually involved with another man, Major Drummond, for several months. Her relationship with Major Drummond did not end until June 1987.

On August 15, 1987, Fitzpatrick was diagnosed as being pregnant. Upon learning of her pregnancy, Fitzpatrick informed Gulla that the child was his and simultaneously accepted Gulla’s prior proposal of marriage.

Gulla was extremely pleased at the thought of becoming a father. Throughout Fitzpatrick’s pregnancy, Gulla conducted himself as an attentive expectant father, making plans for the child, attending and paying for Fitzpatrick’s pre-natal doctor’s visits, and otherwise contributing to Fitzpatrick’s support. Fitzpatrick accepted this assistance without objection and responded by treating Gulla as if he were indeed the child’s father. She represented that he was the father to a minister they visited at that time and referred to Gulla as the child’s father in a letter to Gulla written in December 1987.

Although the parties had planned to marry in December 1987, the wedding never took place, apparently due to Fitzpatrick’s vacillation on the subject of marriage. In any event, in early March 1988, Fitzpatrick began experiencing labor pains, substantially prior to her scheduled date of delivery. Gulla accompanied her to the hospital and a few days thereafter, on March 10th, she delivered a baby boy. Hospital records and the birth certificate reflect Gulla as the child’s father. Fitzpatrick participated in the preparation of these documents. With Fitzpatrick’s consent, the child was named Richard Anthony Gulla, after Mr. Gulla whose first name is also Richard.

Toward the end of Fitzpatrick’s pregnancy, Gulla had rented a mobile home for her. He paid the security deposit and at least half of the first month’s rent. He paid for the fuel necessary to fill the home’s heating tank, rented a truck to move Fitzpatrick in and accomplished the move for her. Gulla also paid various hospital bills in connection with Richard’s birth which were not covered by Fitzpatrick’s insurance.

Immediately after Richard was born, Fitzpatrick began residing in the mobile home. Gulla testified that for the first three months of the child’s life, Gulla lived with him and Fitzpatrick and assumed most of the responsibility for caring for the child. Fitzpatrick stated that Gulla was not actually living with her and the child, but did share in caring for the child. Suffice it to say, Gulla was fully involved with all aspects of the child’s life and care. He also contributed to the support of Fitzpatrick and the child by giving Fitzpatrick cash in various amounts from time to time.

Throughout these months, Fitzpatrick continued to assert that Gulla was Richard’s father and accepted Gulla’s support, both financial and otherwise. She raised no doubts on the issue of paternity. In fact, in April 1988 Fitzpatrick executed an affidavit that Gulla was the father, apparently at Gulla’s request.

Since the parties’ relationship was deteriorating, Gulla became concerned over whether he would continue to have a right to have contact with the child. After consulting with a lawyer, in May 1988 Gulla presented Fitzpatrick with a proposed joint custody agreement. Fitzpatrick refused to sign the agreement and, for the first time, asserted that she had doubts as to whether Gulla was Richard’s father. Rather, she expressed the view that Major Drummond might be the child’s father. She stated that she wished to investigate whether this was in fact the case.

Fitzpatrick explained her sudden change of heart regarding the paternity question by testifying that her doubts concerning the child’s paternity first arose at this time because it was then that she consulted with a friend who was an obstetrician about the fact that the child had been born with wrinkled skin. She stated that she had wondered about the reason for the condition of the child’s skin at birth for some time. Fitzpatrick testified that her friend informed her that such skin is an indication of an overdue child. This revelation, according to Fitzpatrick, convinced her that instead of Richard being premature, as she had thought, he was actually overdue. This would indicate that she had conceived Richard before her involvement with Gulla and during her involvement with Drummond. Thus, Fitzpatrick apparently believes that all of her prior conduct in leading Gulla to believe that he was Richard’s father should be disregarded.

Unfortunately for Ms. Fitzpatrick, this saga does not end here. Rather, the record reveals that although Fitzpatrick did continue to investigate the question of Richard’s paternity through consultation with various doctors, throughout this time she continued to accept financial and other support from Gulla. Although Gulla was then living in his own home, where he had prepared and equipped a nursery for the child, he continued to have constant contact with the child. In fact, he frequently cared for the child while Fitzpatrick sought employment or was otherwise occupied, often having custody of the child in the evenings and all weekend, and he arranged for and paid for three different babysitters to care for the child after Fitzpatrick became employed in August.

In mid-August, 1988, Fitzpatrick told Gulla that she had investigated the matter fully and was once again satisfied that he was the child’s father. Fitzpatrick testified that in actuality, she was still not completely convinced of that fact. Despite these alleged lingering doubts, Fitzpatrick filed a complaint for child support against Gulla in the Court of Common Pleas for Pike County on August 22, 1988. Apparently the complaint was a form provided by the Domestic Relations Office. Although Gulla was named as the defendant on the complaint, Fitzpatrick also checked a box on the form indicating that paternity was as yet “undetermined.” Gulla appeared at the support proceedings and indicated his willingness to support the child. He offered an amount of support and Fitzpatrick agreed to accept that amount. On September 12, 1988, a court order of support in the agreed amount was entered.

Fitzpatrick accepted checks from Gulla pursuant to the court order until October, when she ceased cashing any further checks. Coincidentally, it was also in October when Gulla first filed a complaint for custody of Richard. Fitzpatrick responded by asserting that Gulla was not the child’s father. She immediately refused to allow Gulla to take the child in the evenings or on weekends as he previously had and she enrolled the child in a day care center which was instructed not to release the child to Gulla. Nevertheless, Gulla maintained his contact with the child. He called the day care center every day to check on the child and went to the center frequently to visit with Richard during the day.

On November 10, 1988, the trial court entered an Interim Order, based on a stipulation between the parties, providing Gulla with visitation rights. Thereafter, on December 12, 1988, the court ordered the parties and the child to submit to HLA blood testing. The blood tests conclusively excluded Gulla as the biological father of the child. In May 1989, Fitzpatrick sought and received an ex parte order withdrawing the support complaint she had filed in August 1988 and vacating the support order entered in September. Both parties subsequently filed motions for summary judgment on the issue of custody/visitation. Fitzpatrick argued that Gulla had no right to custody or visitation because he was not the child’s biological father. Gulla asserted that Fitzpatrick was both collaterally and equitably estopped from questioning his paternity and that he had developed a constructive paternal relationship with the child that could not now be disturbed.

On August 14, 1989, the trial court granted Fitzpatrick partial summary judgment finding that she was not collaterally estopped and denied summary judgment to Gulla. The court found that the mere issuance of a support order at Fitzpatrick’s request did not estop her as a matter of law from questioning Gulla’s paternity. Thus, the trial court refused to apply those cases which have held that entry of a child support order against a man necessarily includes the determination that the defendant is the child’s father, because otherwise there would be no legal duty of support. Thus, the party who sought the support order is thereafter collaterally estopped from raising the paternity issue, which has already been determined as a matter of law. See, e.g., Commonwealth ex rel. Coburn v. Coburn, 384 Pa.Super. 295, 558 A.2d 548 (1989) (en banc).

As to the remaining issues of equitable estoppel and constructive relationship, however, the court found that a dispute as to the material facts existed and summary judgment was inappropriate. The court ordered hearings on those issues. Gulla appealed to this court. In an unpublished memorandum, we found the order appealed from to be interlocutory and quashed. Gulla then sought allocatur from the Supreme Court. His petition therefor is still pending. •

On the questions of equitable estoppel and constructive relationship, the court held several days of hearings. During the same period, Fitzpatrick sought transfer of the custody proceedings to Rhode Island, where she and the child had relocated in May 1989. The court held decision on that issue until the conclusion of the hearings. On April 19, 1990, the trial court entered the order presently on appeal. In that order, the court found that Fitzpatrick was equitably estopped from challenging Gulla’s paternity, that Gulla had established a constructive parental relationship with the child that merited continuation, and that the actual custody decision should be made by the Rhode Island courts.

We begin with the issue of equitable estoppel. This doctrine, as applied in the context of a paternity dispute, has a long history in Pennsylvania. We have the benefit of a recent description of the doctrine by our Supreme Court. In John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990), the court stated:

We see the Commonwealth/family interests highlighted by the “estoppel” cases. In these cases, it is recognized that, under certain circumstances, a person might be estopped from challenging paternity where that person has by his or her conduct accepted a given person as father of the child..... These estoppel cases indicate that where the principle is operative, blood tests may well be irrelevant, for the law will not permit a person in these situations to challenge the status which he or she has previously accepted.
The General Assembly has codified the principle of “paternity by estoppel” in its Act of June 17, 1971, P.L. 175, No. 17, § 1, as amended by Act of November 26, 1978, P.L. 1216, No. 288 § 1, 48 Pa.Stat.Ann. § 167 (Purdon’s Supp.1989) (hereinafter referred to as “section 167”), which provides:
Children; legitimacy; determination of paternity
(b) For purposes of prescribing benefits to children born out of wedlock by, from and through the father, paternity shall be determined by any one of the following ways:
(1) If the parents of a child born out of wedlock shall have married each other.
(2) If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.
(3) If there is clear and convincing evidence that the man was the father of the child which may include a prior court determination of paternity.

Id., 524 Pa. at 318-19, 571 A.2d at 1386-87 (emphasis in original). See also Wachter v. Ascero, 379 Pa.Super. 618, 550 A.2d 1019 (1988); Manze v. Manze, 362 Pa.Super. 153, 523 A.2d 821 (1987).

The John M. court went on to discuss, with apparent approval, two cases wherein equitable estoppel was held to prevent a parent from questioning paternity. The first, In re Montenegro, 365 Pa.Super. 98, 528 A.2d 1381 (1987), presented the classic situation where equitable estoppel has been applied. Montenegro involved a man who had held a child out as his own and supported the child for some time and then later attempted to disprove his own paternity through blood testing. We refused to allow him to do so, stating that evidence of blood tests to disprove the father’s paternity was inadmissible since paternity had already been established through the father’s conduct. Id., 365 Pa.Superior Ct. at 104, 528 A.2d at 1384.

The other case referred to by the John M. court as an example of a slightly different application of the doctrine of equitable estoppel was the Supreme Court’s own decision in Adoption of Young, 469 Pa. 141, 364 A.2d 1307 (1976). There, the principle was held to operate to bar a mother from questioning the paternity of her son. The mother had held her first husband out as the father of the child. The first husband had been married to the mother when the child was born, lived with them for five months thereafter and then continued to provide financial support for the child, which support was accepted by the mother. After the parties divorced and the mother remarried, she and her second husband sought to terminate the parental rights of the first husband by disproving his paternity. The Supreme Court held the mother estopped from doing so, noting that if the situation were reversed, the court would clearly not allow the first husband to question his own paternity. Thus, the court applied equitable estoppel principles to bar a mother from questioning the paternity of a man who had treated the child as his own because the mother had acquiesced in the man’s conduct and had accepted his support of the child as well.

The propriety of applying equitable estoppel principles to a mother who seeks to disprove the paternity of a man she has held out as the father of her child was expressly established in Seger v. Seger, 377 Pa.Super. 391, 547 A.2d 424 (1988). There, the parties lived together out-of-wedlock. The mother became pregnant during this relationship. She represented to the man that he was the father and they married shortly before the child’s birth. They lived together as a family for four years and then separated. The mother then attempted to disprove the husband’s paternity in order to deny him custody/visitation rights.

This court refused to allow the mother to attempt to disprove the husband’s paternity, stating:

It has been stated in numerous cases that a father is estopped from denying paternity by long delay in raising the issue at law (assuming he was aware of non-paternity) and by his acceptance and support of the child during that time. If a father’s conduct works an estoppel on his assertion of non-paternity in a support matter, there is no principle of law which would prevent the same application to a case, such as here, where the mother informs the father he is responsible for the pregnancy, marries him, assigns paternity to him on the birth certificate, permits him to support the child and assume the parental duties for years, and only upon separation repudiates his paternity.

Id., 377 Pa.Superior Ct. at 397, 547 A.2d at 427.

As these cases reveal, application of the doctrine of equitable estoppel aims at achieving fairness as between the parents by holding them, both mother and father, to their prior conduct regarding the paternity of the child. As has frequently been stated, equitable estoppel acts to prevent an injustice upon the party asserting the doctrine and will even operate to do so between two innocent parties. Thatcher’s Drugs of West Goshen, Inc. v. Consolidated Supermarkets, Inc., 391 Pa.Super. 524, 571 A.2d 490 (1990). However, application of estoppel principles in a case where paternity is at issue also implicates the interests of another person who is completely innocent and whose life will be markedly affected by the outcome of the dispute. That person is, of course, the child. The advisability of applying equitable estoppel in such a case will often be bolstered by the fact that to do so will serve the best interests of the child, who has developed a parent-child relationship with the man who has assumed the responsibilities of fatherhood. As an en banc panel of this court noted in Commonwealth ex rel. Coburn v. Coburn, 384 Pa.Super. 295, 558 A.2d 548 (1989):

... the best interests of the child sometimes require that a non-biological parent or stepparent, who has nurtured the child and developed a loving relationship, must be given custody and/or visitation rights even though his relationship with the natural mother may have ended. The mental well-being of the child dictates the necessity for the relationship to continue____ Such a relationship [between child and non-biological parent] cannot be curtailed simply because of a finding that [the non-biological parent] ... is not in fact the natural father____ In this era of artificial insemination, surrogate parenting and in vitro fertilization, legal rights of a non-biological parent may become fixed by virtue of the parties’ actions and the developmental relationship of the child with the parent. To permit one parent to revoke the parentage of the other parent, once those rights have been legally determined, in the absence of fraud, by invoking a blood test, invites chaos to the child’s emotional well-being and legal status.

Id., 384 Pa.Superior Ct. at 304-05, 558 A.2d at 552-53 (citations omitted).

We agree with the trial court that this is a case where the application of equitable estoppel to prevent Fitzpatrick from questioning the paternity of Gulla is appropriate. Thus, the results of the blood tests indicating that Gulla is not the child’s biological father are irrelevant and Gulla is entitled to be considered the child’s legal father in connection with custody/visitation rights.

The lengthy recitation of Fitzpatrick’s conduct regarding the paternity of this child which we have set forth above reveals that even prior to the birth of this child Fitzpatrick actively led Gulla and the world to believe that he was the child’s father. She never informed Gulla that there was any possibility that the child was anyone else’s. Consistent with this attitude, she accepted Gulla’s assistance and financial support both in paying medical bills associated with her pre-natal care and delivery of the child and with establishing a home for her and the child. After the child’s birth, she continued to lead Gulla to believe he was the father, once again accepting his financial support and allowing him to bond with the child.

Even when Fitzpatrick allegedly began to question the identity of the child’s father, she continued for several months to accept Gulla’s support. She allowed him to care for the child whenever she needed him to, she accepted financial contributions from him, and she allowed him to arrange for and pay for the child’s babysitters once she began to work. Moreover, it was during the period when Fitzpatrick was allegedly questioning Gulla’s paternity that she initiated support proceedings against him. Having obtained a support order against him, she accepted two month’s payments thereunder, once again acting in a manner consistent with the view that Gulla was the child’s father.

At best, Fitzpatrick’s conduct reveals that she felt that she could vacillate in her own feelings about the paternity of this child, raising questions about it from time to time, and yet that she could also continue to accept Gulla’s support and to allow the child and Gulla to develop a parent-child relationship. At worst, Fitzpatrick’s conduct reveals that she had serious doubts about Gulla’s paternity for a long time and yet did not raise those concerns in order to be able to continue to receive Gulla’s support and assistance. In any event, only after Gulla initiated action to secure custody of the child did Fitzpatrick become consistent in her denial of his paternity in order to free herself of any obligations to him.

Whichever way we view Fitzpatrick’s conduct, the results of it are apparent on the face of this record. Gulla has conducted himself as a devoted and involved father. The child has responded accordingly. Witness after witness who had repeatedly observed Gulla with the child testified as to the loving relationship and close bond that has developed between the child and Gulla. Gulla’s expert witness, a psychologist, also confirmed the parent-child relationship that had developed between the child and Gulla.

We cannot allow Fitzpatrick to sever this tie because she has now finally decided, after many months of representing to Gulla and the world that he is the child’s father, that indeed Gulla is not the child’s father. To allow her to do so would not only be grossly unfair to Gulla, who himself has acted in a consistent and responsible manner, but would also be highly destructive to this child’s well-being. The child knows only one father — Gulla. Moreover, there is no one else who has come forward to offer himself as the father of this child. To remove Gulla will not only allow the child’s only known father to be taken away. It will leave the child fatherless.

We recognize, of course, that this case does not present a situation precisely like that found in many of the estoppel cases. This is not a case where the parties were ever married, nor is it a case where the mother has held the man out as the father of the child for a period of years. We do not, however, find these distinctions to be controlling. None of the cases require that the parties have been married, nor would such a requirement be consistent with the theory of equitable estoppel. Indeed, as a panel of this court stated in Scott v. Mershon, 394 Pa.Super. 411, 576 A.2d 67 (1990), principles of estoppel are peculiarly suited to cases where the child was conceived out of wedlock and no presumptions regarding paternity apply. Id,., 394 Pa.Superior Ct. at 418-19, 576 A.2d at 71. Nor do any of the estoppel cases suggest that a party may not be held to be estopped unless that party’s conduct in holding out the other as the father of the child has continued for several years. The number of years or months involved is not determinative. Rather, it is the nature of the conduct and the effect on the father and the child and their relationship that is the proper focus of our attention. Every such case must be decided after a close analysis of all of the facts and circumstances, with the length of time involved being only one circumstance to be considered.

We find no error in the trial court’s determination that Fitzpatrick is equitably estopped from questioning the paternity of Gulla.

We now turn to the second issue posed, i.e. should the determination of the extent of Gulla’s custody/visitation rights be transferred to Rhode Island under the Uniform Child Custody Jurisdiction Act, now codified at 23 Pa.C.S.A. § 5341 et seq. (1991) (the “Act”). The trial court found that transfer was appropriate because the child and his mother have resided in Rhode Island since May 1989 and the determination of what custody arrangement would be in the child’s best interests would be most easily made in that state.

Gulla appeals this determination, arguing that the child’s early life was spent in Pennsylvania, these proceedings have been conducted in this state, and it is here that the evidence as to the child’s care during its first year is most readily available. Alternatively, Gulla argues that New York, where Gulla himself resides, would be a more appropriate forum.

As both parties recognize, the Act would permit the courts of either Rhode Island or this Commonwealth to decide custody in this case. See 23 Pa.C.S.A. § 5344. Therefore, we must decide which of these fora, both having jurisdiction, would be the better of the two.

Section 5348 of the Act, entitled “Inconvenient forum,” states that the following factors, among others, are pertinent to the court’s decision as to whether transfer of the case to another jurisdiction is warranted:

(1) If another state is or recently was the home state of the child.
(2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants.
(3) If substantial evidence concerning the present or future care, protection, training, and personal relationships of the child is more readily available in another state.
(4) If the parties have agreed on another forum which is no less appropriate.
(5) If the exercise of jurisdiction by a court of this Commonwealth would contravene any of the purposes stated in section 5342 (relating to purposes and construction of sub-chapter).

Of course, application of these factors allows the court considerable discretion and will vary greatly depending on the facts of the particular case. See, e.g., Aldridge v. Aldridge, 326 Pa.Super. 49, 473 A.2d 602 (1984). We will not reverse a trial court’s decision to decline jurisdiction absent an abuse of that discretion. In re Adoption of K.S., 399 Pa.Super. 29, 581 A.2d 659 (1990).

In considering these factors in light of the facts of this case, either Rhode Island or Pennsylvania could be viewed as an appropriate forum. Both states have been the child’s home state for substantial periods of time. While Gulla lives in New York, his business is in Pennsylvania and it appears that at least some of his extended family is here as well. On the other hand, Fitzpatrick and her parents live in Rhode Island. Moreover, there is evidence pertinent to the child’s care present in both states. Witnesses who would testify as to Gulla’s parenting and home life are largely in Pennsylvania, although some are in New York, whereas witnesses who could testify as to Fitzpatrick’s parenting and home life over the last two years are in Rhode Island.

Despite this apparent balance between the convenience of the two fora, we find that the presence of the child and his mother in Rhode Island for the past two years tips the balance in favor of that state. As the trial court found, Rhode Island is the state where the child has been for the majority of his young life and where he has lived most recently. It is there that he is enrolled in school, there that his doctor is located, and there that his mother and her parents are located. There is no indication on the record that the mother intends to relocate from Rhode Island in the near future. Moreover, the fact that the courts of this Commonwealth have already had some involvement with this case, and have issued two temporary custody orders based on stipulations of the parties, does not require that we retain jurisdiction. This is only one factor to be considered. Hattoum v. Hattoum, 295 Pa.Super. 169, 441 A.2d 403 (1982). We do not consider it to be determinative in this case, particularly since no Pennsylvania court has ever actually conducted a best interests analysis concerning this child, both interim orders having been entered on stipulation of the parties. Thus, we find that the courts of Rhode Island are best suited to make a determination of the future best interests of this child.

The order of the trial court is affirmed in all respects.

      . Gulla testified that Fitzpatrick had become dissatisfied with the amount of money he had voluntarily been giving her and this motivated the filing of the support complaint.

      . Fitzpatrick contends that her filing of a support complaint against Gulla should be accorded no relevance because on the face of the form complaint, she checked a box indicating that paternity was as yet undetermined. She also contends that no relevance should be attached to the fact that a support order was entered on her complaint because, as we have pointed out in text above, the trial court has decided that she was not collaterally estopped by virtue of having obtained a support order against Gulla.
      We reject both of these arguments. First, the fact that the trial court has decided that the entry of a support order against Gulla does not collaterally estop Fitzpatrick as a matter of law does not mean that we must completely ignore the fact that Fitzpatrick brought a support action against Gulla in deciding the equitable estoppel issue before us now. The trial court's decision that Fitzpatrick is not collaterally estopped, as to which allocatur before the Supreme Court is pending, does not preclude equitable estoppel because these are two distinct legal doctrines. Collateral estoppel precludes a party from raising an argument that has already been finally adjudicated by a court of law. See Commonwealth ex rel. Coburn v. Coburn, 384 Pa.Super. 295, 558 A.2d 548, 551 (1989) (en banc). As applied in paternity actions, the doctrine provides that where a woman secures a child support order against a man, the entry of that order necessarily includes a judicial determination of paternity. Equitable estoppel, on the other hand, refers to estoppel created by a party’s conduct and has nothing to do with a prior judicial determination. Thus, while Fitzpatrick may not be collaterally estopped by the existence of the support order, the fact that she sought and obtained the order and accepted payments under it is certainly one factor relevant to equitable estoppel.

      . Gulla has continued to visit with the child during these proceedings, thus further developing their relationship.

      . We reject the suggestion of New York as a more appropriate forum than Rhode Island without substantial discussion. The child in question has never lived in New York and there are no significant connections between the child and that state. Thus, we deal only with the question of whether this Commonwealth is the preferable forum.


source: Caselaw Access Project

author: KELLY, Judge:

license: Public Domain

text:
    596 A.2d 860
    Dale DICKLER and Judy Kates, Individually and as Representatives on Behalf of all Persons Similarly Situated, Appellees, v. SHEARSON LEHMAN HUTTON, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued May 15, 1991.
    Filed Aug. 30, 1991.

      Daniel T. Futch, Philadelphia, for appellant.
    Lewis Kates, Philadelphia, for appellees.
    Before McEWEN, KELLY and FORD ELLIOTT, JJ.
   KELLY, Judge:

In this opinion we are called upon to determine whether the trial court erred in holding that in Pennsylvania a claim for equitable relief is by law, outside the terms of an arbitration agreement. The trial court held that this class action suit, calling for equitable as well as legal relief, was outside the terms of the arbitration agreement between the appellant, Shearson Lehman Hutton, Inc. [hereinafter “Shearson”], and the appellees [hereinafter the “Dickler Group”]. We find that the broad agreement [hereinafter “Shearson client agreement”] signed by the parties encompasses all controversies, and that federal and Pennsylvania law allows arbitrators to provide all kinds of relief not prohibited by statute. Furthermore we find that this class action, if properly certified, may continue through arbitration on a class-wide basis. We therefore remand to the trial court for class certification proceedings. After this ruling, the trial court must compel arbitration. The Dickler Group may then proceed with the dispute through arbitration either as a class or individually, depending on the result of the class certification proceedings.

The relevant facts and procedural history are as follows. The Dickler Group purchased securities between January, 1989 and June, 1989 from Shearson. On February 15,1990, the Dickler Group brought this action, individually, and as class representatives for all similarly situated, alleging that Shearson failed to deliver the purchased securities or pay stock dividends on the securities despite their requests. The Dickler Group’s original complaint sought recovery for three causes of action: breach of fiduciary duty, breach of contract and tortious conversion.

On April 12, 1990, Shearson filed a motion to stay claims and compel arbitration, citing the Shearson client agreement between the parties. Paragraph 23 of the agreement states:

Any controversy arising out of or relating to my accounts, to transactions with you, your officers, directors, agents and/or employees for me, or to this agreement, or the breach thereof, ... shall be settled by arbitration in accordance with the rules then in effect, of the NASD or the Board of Directors of the NYSE or American Stock Exchange, Inc., as I may elect. If I do not make such election by registered mail addressed to you at your main office within five days after demand by you that I make such election, then you will have the right to elect the arbitration tribunal of your choice. Judgment upon any award rendered by the arbitrators may be entered in any court having jurisdiction thereof.

On May 18, 1990, the Dickler Group filed a response to the motion, and an amended complaint which included a prayer for equitable relief. In its response, the Dickler Group argued that the claims were not arbitrable because of the request for equitable relief. Shearson responded to the Dickler Group’s answer, arguing that the Shearson client agreement was broad enough to address all disputes.

On July 10, 1990, the trial court entered an order denying appellant’s motion to compel arbitration. The trial court ruled that the dispute presented was outside the terms of the Shearson client agreement. The trial court stated that “[t]he [equitable] relief requested cannot be awarded through arbitration.” Tr.Ct.Op. at 3. On August 10, 1990, Shearson filed this appeal.

Shearson raises the following issue for our review:

I. WHETHER THE LANGUAGE OF THE ARBITRATION CLAUSE CONTAINED IN THE SHEARSON CLIENT AGREEMENT REQUIRES ARBITRATION OF CLAIMS ASSERTED BY THE PLAINTIFFS AGAINST SHEARSON LEHMAN HUTTON, INC., INCLUDING CLAIMS FOR EQUITABLE RELIEF?

Appellant-Shearson’s Brief at 3.

Shearson contends that the trial court erred by failing to stay proceedings and compel arbitration. This Court, guided by the deference to arbitration agreements by both federal and Pennsylvania courts and legislatures, finds that the trial court erred by allowing this dispute to bypass the contracted for arbitration process. The trial court failed to defer to the broad directive of the United States Supreme Court which has mandated a standard of enforceability which should have guided the outcome of this case, and to Pennsylvania precedent which suggests that under the most recent legislation, equitable decrees by arbitrators will be enforced by state courts. The trial court, in reaching its conclusion, also gave inadequate attention to the comprehensive nature of the Shearson client agreement.

The standard for enforcing an arbitration agreement is mandated by federal law. The Federal Arbitration Act (FAA) has been interpreted by the Supreme Court as mandating the enforcement of all arbitration agreements which “evidence a transaction involving commerce, unless they are revocable on contractual grounds.” Southland Corp. v. Keating, 465 U.S. 1, 11-12, 104 S.Ct. 852, 858-59, 79 L.Ed.2d 1, 12 (1984). The Court extended this principle of enforceability to the states, noting that if Congress did not intend states to be bound, the limiting language “evidencing] a transaction involving commerce” would have been entirely superfluous. Id.

The Court has consistently reiterated this policy of respecting arbitration agreements. See Mitsubishi Motors v. Soler Chrysler-Plymouth, 473 U.S. 614, 626, 105 S.Ct. 3346, 3354, 87 L.Ed.2d 444, 455 (1985) (“[A]s with any other contract, the parties’ intentions control, but those intentions are generally construed as to issue of arbitrability.”); Dean Witter Reynolds, Inc. v. A. Lamar Byrd, 470 U.S. 213, 219, 105 S.Ct. 1238, 1242, 84 L.Ed.2d 158, 164 (1985) (“The legislative history of the [Federal Arbitration] Act establishes that the purpose behind its passage was to ensure judicial enforcement of privately made agreements to arbitrate.”); Moses H. Cone Hospital v. Mercury Constr., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765, 785 (1983) (“Section 2 [of FAA] is a congressional declaration of a liberal federal policy favoring arbitration agreements, not withstanding any state substantive or procedural policies to the contrary.”); AT & T Technologies v. Communications Workers, 475 U.S. 643, 650, 106 S.Ct. 1415, 1419, 89 L.Ed.2d 648, 656-57 (1986) (“[Tjhere is a presumption of arbitrability in the sense that ‘[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.’ Such a presumption is particularly applicable where the clause is [a] broad ... one.”) (citation omitted).

In establishing this broad federal directive favoring arbitration agreements, the United States Supreme Court reinforced the traditional deference which federal courts have shown towards the remedial power of arbitrators. The Court has emphasized that the arbitration process would only be viable if it could handle all the disputes which could arise under the agreement and only if the arbitrators have a great deal of flexibility in fashioning remedies. See United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424, 1428 (1960).

In Southland Corp. v. Keating, supra, which extended federal enforceability standards to state courts, the Court noted that the Federal Arbitration Act was motivated by a congressional purpose to overcome the rule that courts of equity will not enforce arbitration agreements. The Court noted that the resistance of many state courts was grounded solely in the tradition of English courts jealously maintaining their own jurisdiction. See Southland Corp. v. Keating, supra, 465 U.S. at 13, 104 S.Ct. at 859, 79 L.Ed.2d at 13-14.

The Southland Corp. v. Keating, supra, established a general rule of broad enforceability for arbitration agreements, including a strong suggestion that arbitrators be allowed to dispense equitable relief. While this decision will force many states to reevaluate and reverse their historical disdain for arbitration, Pennsylvania’s policy towards arbitration is entirely consistent with the United States Supreme Court’s holding. In Pennsylvania, our courts’ decisions have been governed by two basic, but hard to reconcile propositions: (1) arbitration agreements are to be strictly construed and ... such agreements should not be extended by implication and (2) when the parties agree to arbitration in a clear and unmistakable manner, then every reasonable effort will be made to favor such agreements. See Emmaus Mun. Auth. v. Eltz, 416 Pa. 123, 125, 204 A.2d 926, 927 (1964); Hassler v. Columbia Gas Transmission Corp., 318 Pa.Super. 302, 307, 464 A.2d 1354, 1356 (1983).

While the admonition against extending by implication the terms of the agreement clearly suggests limits on the interpretation of arbitration agreements, such limits are of small concern in evaluating a contract which employs sweeping, all encompassing language. The Pennsylvania Supreme Court, when confronted with a contract which called for arbitration employing the term “[a]ny controversy ...,” could find no grounds to enjoin such an agreement. The Court suggested that “[bjroader language would be difficult to contrive.” Flightways Corp. v. Keystone Helicopter Corp., 459 Pa. 660, 663, 331 A.2d 184, 185 (1975).

The Shearson client agreement, also beginning with the words “[a]ny controversy ...,” employs even more encompassing language in directing disputes towards arbitration than the agreement interpreted in Flightways, supra. Absent any language in the rest of the sales agreement or proof of the parties’ intent which would limit the plain language of the arbitration clause, it would be virtually impossible to extend its scope by implication.

With no restrictions in the express terms of the Shearson client agreement, this Court is free to interpret the arbitration agreement in accordance with this state’s preference for enforcing arbitration agreements. See Flightways, supra, 459 Pa. at 663, 331 A.2d at 185 (“It has become well established that ‘settlement of disputes by arbitration are no longer deemed contrary to public policy. In fact, our statutes encourage arbitration and with our docket crowded and in some jurisdictions congested arbitration is favored by the courts.’ ”) (citation omitted); Sanitary Sewer Auth. v. Dial Assoc., 367 Pa.Super. 207, 210-11, 532 A.2d 862, 863, 864 (1987) (“In accordance with the general policy favoring the arbitration of contract differences, an order enjoining arbitration of a particular grievance should not be granted unless it can be said with positive assurance that the agreement involved is not susceptible of an interpretation that covers the asserted dispute.”).

While the federal and state policies favoring arbitration provide considerable support for Shearson’s position, no Pennsylvania Court has ruled on the exact issue of whether arbitrators may dispense equitable relief, and in turn have those remedies be enforced by the state courts. However, Shearson’s contention is supported by the language of the 1980 Uniform Arbitration Act, see 42 Pa.C.S.A. §§ 7301 et seq., specifically by Section 7316. This section empowers a trial court to enforce the ruling of an arbitrator, by entering either a judgment or decree in conformity with the arbitrator’s holding. The equitable language of this amendment corrected a judicial inconsistency illustrated by a 1983 case in which an arbitration agreement was contracted for and evaluated under Pennsylvania’s Arbitration Act of 1927. This Court held that the arbitrator was allowed to declare injunctive relief, but because the 1927 Act only allowed for enforcement of judgments, such an injunctive decree could not be enforced by the courts. See Dover v. Philadelphia Housing Authority, 318 Pa.Super. 460, 465 A.2d 644 (1983). We recognized that the result, in Dover, supra, would be different if the contract was evaluated under the 1980 Arbitration Act. Id., 318 Pa.Superior Ct. at 465, n. 9, 465 A.2d 644. This precedent of permitting an arbitrator to issue equitable decrees, in tandem with the 1980 statute mandating the enforcement of these decisions, establishes conclusively the appropriateness of the arbitral forum for deciding issues of equity.

Instantly, the arbitration agreement contains no language which would limit the scope of its jurisdiction beyond those limits mandated by law. Nor has either side produced evidence suggesting the parties intent as to this issue. The Shearson client agreement’s “clear and unmistakable” language is clearly comprehensive enough to allow arbitration proceedings to be used to address this dispute. We find that the arbitration clause in the Shearson client agreement encompasses equitable relief. This finding is entirely consistent both with the scope of the agreement and state and federal law. Therefore, we hold that the trial court erred in refusing to compel arbitration for the claims presented by the Dickler Group.

The Dickler Group, in responding to Shearson’s appellate issue, has raised an additional concern which, if left unaddressed, would detract from the sound policy of favoring arbitration agreements. “The relatively small amount of monetary relief to which each class member would be entitled mandates the conclusion that if each Shearson customer was relegated only to individually proceeding in arbitration, the costs involved would effectively bar most, if not all, from obtaining the relief to which they are entitled and which this class action seeks to achieve.” See Dickler Group’s brief at 7-8.

The Dickler Group’s concern hinges on the premise that each aggrieved individual will have to bring her case separately to an arbitrator. The economics of such proceedings suggest that few, if any, actions will occur, thereby allowing Shearson to discount the burdens of these infrequent arbitrations and continue its allegedly improper policy.

The Dickler Group’s concern, however, may be properly dismissed if the trial court, while compelling arbitration, allows any properly certified class to proceed through arbitration. We agree with the California appellate court which was the first to allow class actions in arbitration proceedings, that “there is no insurmountable obstacle to conducting an arbitration on a class-wide basis. In an appropriate case, such a procedure undoubtedly would be the fairest and most efficient way of resolving the parties’ disputes.” Keating v. Superior Ct. of Alameda County, App., 109 Cal.App.3d 784, 167 Cal.Rptr. 481, 492 (1980) (California state court case allowing class-wide arbitration).

The Pennsylvania Supreme Court has given approval at least to the concept of class action arbitration proceedings, although it has never ruled on the applicability of such procedures when the arbitration agreement does not specifically call for it. The Pennsylvania Supreme Court held that a class action claim before the state’s Board of Arbitration of Claims was proper. The Court cited the Board’s own promulgated rules, which adopted the entire Pennsylvania Rules of Civil Procedure to govern its own proceedings. The Court found that Pa.R.Civ.P. class action rules, see Pa.R.Civ.P. 1701-1716, were included in this adoption. See Stevenson v. Com. Dept. of Revenue, 489 Pa. 1, 4, 413 A.2d 667, 668 (1980).

The Shearson client agreement contains no explicit language, as the agreement in Stevenson, supra, which would dispositively answer whether class action was intended or considered. However, the holding in Stevenson, supra, implies that there is no policy reason so paramount in this state which would preclude class action proceedings from being imposed on an arbitration agreement.

The United States Supreme Court in its Southland Corp. v. Keating, supra, did not rule on the propriety of the California Courts superimposing class-action procedures on the contract arbitration. Because the appellant in that case did not raise its opposition to such proceedings as a federal question, the Court held that it had no jurisdiction to answer the question as a matter of federal law. See Southland Corp. v. Keating, supra, 465 U.S. at 8, 9, 104 S.Ct. at 857-58, 79 L.Ed.2d at 10-11.

Our research has revealed that California is the only state to explicitly allow class-wide arbitration. In affirming the appellate court, the California Supreme Court held:

Controversies involving widely used contracts of adhesion present ideal cases for class adjudication; the contracts are uniform, the same principles of interpretation apply to each contract, and all members of the class will share a common interest in the interpretation of an agreement to which each is a party.

Keating v. Superior Ct. of Alameda County, 31 Cal.3d 584, 183 Cal.Rptr. 360, 375, 645 P.2d 1192, 1206-07 (1982) quoting La Sala v. American Sav. & Loan Assn., 5 Cal.3d 864, 877, 97 Cal.Rptr. 849, 857, 489 P.2d 1113, 1121 (1971).

The California Supreme Court was not willing to excuse the plaintiffs from arbitration in order to reap the benefits of a class action suit, holding that, while these were contracts of adhesion, the agreements were not oppressive and were reasonably to be anticipated in a commercial context. Id. 183 Cal.Rptr. at 364-66, 645 P.2d at 1194-98. Faced with this strong contractual requirement, the Court suggested a procedure for the parties which addressed the interest of both sides.

At least one court has resisted arbitration on a class-wide basis because it detracts from some of the advantages of arbitration. See Harris v. Shearson Hayden Stone, Inc., 82 A.D.2d 87, 441 N.Y.S.2d 70. Judge Bloom, dissenting from the majority opinion in favor of compelling individual arbitration rather than allowing class action proceedings in the courts, nevertheless insisted that “[arbitration does not lend itself to the many subsidiary proceedings incident to an ongoing class action, e.g. determination of whether class action status should be granted, definition of the class, determination of the nature and kind of notice and by whom it should be sent, provision for opting out, etc.” Harris, supra, 441 N.Y.S.2d at 78 (Bloom, J., dissenting). The California Supreme Court acknowledged this same list of obstacles, stressing the need for care and ingenuity in addressing these concerns with a minimum of judicial intrusion and delay. See Keating v. Superior Ct. of Alameda County, 183 Cal.Rptr. 360 at 377, 645 P.2d 1192 at 1209. The California Supreme Court concluded, however, that in the context of arbitration agreements which were part of adhesion contracts, classwide arbitration was a “more efficient and fairer solution” than any alternative. See id. It therefore remanded to the trial court for determination of not only the class certification issues, but also the impact of this form of action and the court supervision it would entail, on the arbitration proceedings. See id. 183 Cal.Rptr. at 377-78, 645 P.2d at 1209-10.

Class-wide arbitration is a different animal than individual arbitration. In addition to the need for a trial court to initially certify the class and to insure that notice is provided for, the trial court will probably have to have final review in order to insure that class representatives adequately provide for absent class members. See Keating v. Superior Ct. of Alameda County, 183 Cal.Rptr. at 377, 645 P.2d at 1209.

In trying to adapt the more cumbersome class action procedure to the supposedly streamlined arbitration proceedings, the trial court, instantly, will have to account for additional complications. Class action rules allow for multiple representatives in cases where individuals feel that the initial representatives are not adequately representing them. An inundation of representatives during arbitration proceedings could hamstring the process through delay and complexity. Disagreement between multiple class representatives could especially complicate the selection of arbitrators. However, to the extent that management of the class becomes too complicated or potentially destructive of the arbitration process, the court may then be justified in not granting certification. See “Classwide Arbitration,” supra, at 799-800.

In making a determination of class certification as a fair and efficient method of adjudicating the controversy, the trial court must consider various criteria, including “whether the particular forum is appropriate for the litigations of the claims of the entire class.” Pa.R.Civ.P. 1708(a)(5). Rule 1708 implies a great deal of discretion for the trial court by not according any specific weight to the listed criteria and by not insisting on the exclusivity of the list. See ABC Sewer Cleaning Co. v. Bell of Pa., 293 Pa.Super. 219, 226-27, 438 A.2d 616, 619 (1981).

The trial court in making its determination regarding class certification must take into account the factors normally relevant to class certification, but also the special nature of arbitration proceedings, including the impact that court intrusion into the proceedings will have. See Keating v. Superior Ct. of Alameda County, 183 Cal.Rptr. at 377, 645 P.2d at 1209-1210. The special characteristics of arbitration may mandate a stricter standard for class certification. However, it should not preclude it.

Instantly, as in Keating v. Superior Ct. of Alameda County, the context of form contracts increases the likelihood that class action considerations would not unduly burden the arbitration process. The arbitrator will simply have to make a contractual interpretation which will apply equally to all members of the class.

In finding that the arbitration agreement, agreed to by Shearson and the Dickler Group, will encompass a class action dispute, this Court is merely giving full weight to the wording of the Shearson client agreement, i.e. “any controversy.” Such a procedural avenue is consistent with this state’s and the national impetus towards allowing all disputes to be decided in arbitration unless the contract specifically says otherwise.

Given the three paths down which this litigation can be directed — compelled individual arbitration, class action in a court of law, or compelled classwide arbitration — the last choice best serves the dual interest of respecting and advancing contractually agreed upon arbitration agreements while allowing individuals who believe they have been wronged to have an economically feasible route to get injunctive relief from large institutions employing adhesion contracts.

The availability of class suits in arbitration proceedings precludes either party from forcing the other to litigate in a position less advantageous than that for which they contracted. Allowing the suit to proceed through the court would defeat the purpose of the arbitration agreement, allowing plaintiffs to escape obligated arbitration in order to be heard in the sympathetic province of a jury trial. Future litigants might feel encouraged to join classes together for this single purpose when they otherwise would have been satisfied with individually litigating their claim.

Compelling individual arbitration would force individuals already straitjacket by an industry-wide practice of arbitration agreements to fight alleged improprieties at an exorbitant economic cost. Individual arbitration would be small deterrent to companies certain that few proceedings will be instituted against them. Because the principles of res judicata and collateral estoppel are not applicable to arbitration proceedings, each plaintiff would be forced to fully litigate his complaint.

In conclusion, the Shearson client agreement’s plain language allows for an interpretation which comports with federal and state policies favoring arbitration. These policies dictate broad arbitral powers, including equitable decrees. As Shearson has contended, this dispute must be resolved in the manner contracted for by the parties. Fairness mandates, however, that the Dickler Group, bound by adhesion form contracts to arbitration agreements, be able to protect their interests by proceeding as a class through arbitration. We therefore reverse the trial court and remand for class certification proceedings. Following this decision, the court must compel arbitration for the class if it has been certified or individually if it has not been certified.

Order reversed and remanded for proceedings consistent with this Opinion.

Jurisdiction relinquished.

      . Shearson has also raised a procedural objection in a footnote in its brief to this Court. See Appellant-Shearson’s Brief at 16. Shearson claims that the Dickler Group violated Pa.R.Civ.P. 1033 by filing its May 18, 1990 amended complaint without "consent of the adverse party or by leave of court.” See Pa.R.Civ.P. 1033. We find that Shearson has waived appellate review of this procedural objection.
      Pa.R.A.P. 2116 mandates that any issue which a party wishes to be considered must be set forth in its 'statement of the questions involved’ portion of its appellate brief. See Pa.R.A.P. 2116(a). Rule 2116(a) instructs that this requirement must “be considered in the highest degree mandatory,” and has been adhered to by this Court. See Federal Kemper Ins. Co. v. Derr, 386 Pa.Super. 382, 391, 563 A.2d 118, 123 (1989).
      Shearson also failed to raise its objection in a proper manner to the trial court. As it has here, Shearson objected to the Dickler Group’s amended complaint in a footnote in its response to the Dickler Group’s answer to Shearson’s motion for order to stay claims. See Shearson’s response to the Dickler Group’s answer to Shearson’s motion, filed 6/6/90 at 3. But see e.g. Pa.R.C.P. 1017(b)(2). However, we find that the trial court did not specifically provide or deny permission to the Dickler Group to amend its complaint. We note that trial courts have discretion to liberally permit amendment of the pleadings. See Shanks v. Alderson, 399 Pa.Super. 485, 491, 582 A.2d 883, 886 (1990); Daley v. J. Wanamaker, Inc., 317 Pa.Super. 348, 358, 464 A.2d 355, 361 (1983).

      . The Keating case was before the Supreme Court on appeal from the California Supreme Court. This case is referred to infra regarding the availability of class action procedures in arbitral forums. While proceeding through the California appellate courts, the case was titled Keating v. Superior Ct. of Alameda County, 109 Cal.App.3d 784, 167 Cal.Rptr. 481 (1980); 31 Cal.3d 584, 183 Cal.Rptr. 360, 645 P.2d 1192 (1982).

      . One District Court went so far as to suggest that “[a]n arbitration panel may grant equitable relief that a Court could not.” Sperry Intern Trade, Inc. v. Government of Israel, 532 F.Supp. 901, 905 (S.D.N.Y.1982).

      . This holding is consistent with the especially expansive presumption of arbitrability employed by the Supreme Court in AT & T Technologies, supra, for broad arbitration clauses.

      . Arbiters because of their limited subpoena power and their lack of reviewability until final order are probably not equipped nor appropriate for the task of class certification. See "Classwide Arbitration: Efficient Adjudication or Procedural Quagmire", U.Va.L.Rev. Vol 67 #4 May 1981 p. 787.

      . Notice will be greatly facilitated by the existence of the very contracts which contain the arbitration agreements. “Classwide Arbitration”, supra, at 804.


author: WIEAND, Judge: OLSZEWSKI, Judge, BROSKY, Judge,

text:
    596 A.2d 867
    KELLY-SPRINGFIELD TIRE COMPANY, Appellant, v. Dominic D’AMBRO and Stradley, Ronon, Stevens & Young, Appellees.
    Superior Court of Pennsylvania.
    Argued April 3, 1991.
    Filed Sept. 6, 1991.

      Francis L. White, Jr., Philadelphia, for appellant.
    David H. Marion, Philadelphia, for appellee.
    Before WIEAND, OLSZEWSKI and BROSKY, JJ.
   WIEAND, Judge:

This appeal requires that we review the averments of an amended complaint to determine whether they are sufficient to state causes of action against a lawyer for wrongful use of civil process and intentional interference with a prospective contractual relationship. After careful review, we conclude that causes of action have been adequately stated; and, therefore, we reverse the order of the trial court which sustained preliminary objections in the nature of a demurrer. Creeger Brick v. Mid-State Bank, 385 Pa.Super. 30, 32-33, 560 A.2d 151, 152 (1989).

A preliminary objection in the nature of a demurrer admits every well-pleaded fact and all inferences reasonably deducible therefrom. McGaha v. Matter, 365 Pa.Super. 6, 8, 528 A.2d 988, 989 (1987); Pike County Hotels, Corp. v. Kiefer, 262 Pa.Super. 126, 133, 396 A.2d 677, 681 (1978). It tests the legal sufficiency of the challenged complaint and will be sustained only in cases where the pleader has clearly failed to state a claim for which relief may be granted. Mudd v. Hoffman Homes for Youths, Inc., 374 Pa.Super. 522, 524, 543 A.2d 1092, 1093 (1988). If there is any doubt as to whether a claim for relief has been stated, the trial court should resolve it in favor of overruling the demurrer. Mull v. Kerstetter, 373 Pa.Super. 228, 229-230, 540 A.2d 951, 951 (1988).

The following facts can be discerned from the amended complaint. By agreement dated January 4, 1988, Kelly-Springfield Tire Company agreed to sell and Dominic D’Ambro agreed to buy a warehouse and thirty acres of land situated on Lee Boulevard in Frazer, Chester County. A consideration of ten million ($10,000,000) dollars was payable on or before April 4, 1988. On April 8, 1988, the closing date was extended to May 5, 1988, in exchange for the agreed payment of an additional eighty thousand ($80,-000) dollars. The transaction was not closed, however, and on May 26, 1988, Kelly-Springfield notified D’Ambro and his lawyers, Stradley, Ronon, Stevens and Young, that the agreement was in default, that a down payment of one hundred thousand ($100,000) dollars would be retained as liquidated damages, and that the additional consideration of eighty thousand ($80,000) dollars was due and owing.

On July 20, 1988, Stradley, Ronon filed an action on behalf of the buyer and caused the same to be listed as lis pendens in Chester County. The suit requested specific performance of the sales agreement and/or money damages. Kelly-Springfield moved to strike the lis pendens, and a hearing thereon was set. On August 3, 1988, two weeks before hearing, the pending action and lis pendens were voluntarily withdrawn.

On the following day, Stradley, Ronon filed a new complaint, containing substantially the same averments, in the United States District Court for the Eastern District of Pennsylvania and again caused the action to be marked lis pendens. This action was finally terminated on November 17, 1988, when the court granted summary judgment in favor of Kelly-Springfield.

The present action by Kelly-Springfield against D’Ambro and Stradley, Ronon followed. The amended complaint now before this Court contains five counts. Three of the five counts are against D’Ambro and assert a breach of contract. The third and fourth counts of the amended complaint are against D’Ambro and Stradley, Ronon and allege causes of action for wrongful use of civil process and intentional interference with prospective contractual relationships. Preliminary objections in the nature of a demurrer to Counts 3 and 4 were filed by Stradley, Ronon and sustained by the trial court.

Wrongful use of civil process is a cause of action which is defined by statute in Pennsylvania. The elements thereof are stated at 42 Pa.C.S. § 8351(a) as follows:

§ 8351. Wrongful use of civil proceedings
(a) Elements of action. — A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings [if]:
(1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and
(2) The proceedings have terminated in favor of the person against whom they are brought.

From this it is apparent that a cause of action for wrongful use of civil proceedings requires a plaintiff to allege and prove the following three elements: (1) that the underlying proceedings were terminated in favor of the plaintiff; (2) that the defendant caused those proceedings to be instituted without probable cause; and (3) that the proceedings were instituted primarily for an improper purpose. Shaffer v. Stewart, 326 Pa.Super. 135, 140, 473 A.2d 1017, 1020 (1984); Junod v. Bader, 312 Pa.Super. 92, 95, 458 A.2d 251, 253 (1983).

A lawyer of record has probable cause for initiating a civil action if he believes “in good faith that his ... initiation ... of a civil cause is not intended to merely harass or maliciously injure the opposite party.” 42 Pa.C.S. § 8352(3). The potential liability of the lawyer is discussed in the comment to Section 674 of the Restatement (Second) of Torts as follows:

“An attorney who initiates a civil proceeding on behalf of his client[,] ... even if he has no probable cause and is convinced that his client’s claim is unfounded, ... is still not liable if he acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim. (See § 676). An attorney is not required or expected to prejudge his client’s claim, and although he is fully aware that its chances of success are comparatively slight, it is his responsibility to present it to the court for adjudication if his client so insists after he has explained to the client the nature of the chances.
If, however, the attorney acts without probable cause for belief in the possibility that the claim will succeed, and for an improper purpose, as, for example, to put pressure upon the person proceeded against in order to compel payment of another claim of his own or solely to harass the person proceeded against by bringing a claim known to be invalid, he is subject to the same liability as any other person.”

In the instant case it is clear that all civil proceedings instituted by Stradley, Ronon were terminated in favor of Kelly-Springfield. Indeed, when one examines the facts surrounding D’Ambro’s default in performing his contract to buy Kelly-Springfield’s warehouse property, it is readily apparent that D’Ambro had no cause of action for specific performance of the contract or for damages resulting from the termination thereof. Our review of the instant complaint for wrongful use of civil process, therefore, must focus upon the sufficiency of averments that Stradley, Ronon acted without probable cause and for an improper purpose.

Paragraph 37 of the Amended Complaint is as follows:

37. Defendants initiated and continued the Chester County and Federal proceedings primarily for a purpose other than that of securing the proper adjudication of D’Ambro’s rights under the Agreement. Defendants initiated and continued the Chester County and Federal proceedings against Kelly with malice, i.e. with the improper motive of blocking Kelly from transferring the property to a third party and of attempting to force Kelly to transfer the property to D’Ambro despite the fact that Defendants knew that D’Ambro had defaulted and had no rights to ownership in the property.

On its face, this would seem to be an adequate averment that Stradley, Ronon acted without probable cause and for an improper purpose. The allegation is not merely that the lawyers acted to obtain a good faith adjudication of D’Ambro’s rights, as appellees argue and the trial court found. Rather, the charge is that, with knowledge that their client had defaulted in his agreement to purchase, the lawyers acted to prevent Kelly-Springfield from selling to a third person and to force Kelly-Springfield to deal with D’Ambro by subjecting the property to encumbering litigation. This is an averment which is sufficient to state a cause of action for wrongful use of civil process.

In addition, the complaint contains averments of fact from which an intent to harass can be inferred. Thus, when the Chester County action was about to be heard, Stradley, Ronon and D’Ambro discontinued the action and started a new action in the federal courts and again caused it to be marked as lis pendens. If this was done without probable cause to bring the underlying action, an intent to harass can be inferred from the facts asserted. This is recognized by Section 679 of the Restatement (Second) of Torts where, in a special application of Section 674, the American Law Institute has stated:

One who repeatedly initiates civil proceedings against another for the same cause of action is subject to liability for the harm caused thereby, if
(a) the proceedings are initiated without probable cause, and primarily for a purpose other than that of securing the proper adjudication of the claim on which the proceedings are based, and
(b) except when they are ex parte, the proceedings have terminated in favor of the person against whom they are brought.

The liability contemplated by this section of the Restatement includes the situation “when the plaintiff in the original action, having brought the action, abandons it and thereafter begins a second or further action for the same cause.” Restatement (Second) of Torts, § 679, comment c.

For the foregoing reasons, we conclude that the averments contained in appellant’s amended complaint are sufficient to state a cause of action against Stradley, Ronon for wrongful use of civil process. Therefore, the trial court erred when it summarily dismissed the complaint. The complaint is sufficient to require Stradley, Ronon to respond, at which time they can properly assert any defense which they may have to the cause of action alleged by Kelly-Springfield.

Appellant has also stated a cause of action against Stradley, Ronon for tortious interference with Kelly-Springfield’s prospective business relations. The elements of such a cause of action were identified in Vintage Homes, Inc. v. Levin, 382 Pa.Super. 146, 554 A.2d 989, allocatur denied, 524 Pa. 622, 571 A.2d 384 (1989), as follows:

(1) a prospective contractual relation;
(2) the purpose or intent to harm the plaintiff by preventing the relation from occurring;
(3) the absence of privilege or justification on the part of the defendant; and
(4) the occasioning of actual damage resulting from the defendant’s conduct.

Id., 382 Pa.Superior Ct. at 155, 554 A.2d at 994, citing Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 208, 412 A.2d 466, 471 (1979). See also: Glenn v. Point Park College, 441 Pa. 474, 479-480, 272 A.2d 895, 898 (1971); Geyer v. Steinbronn, 351 Pa.Super. 536, 552, 506 A.2d 901, 910 (1986).

The trial court found appellant’s amended complaint deficient because it failed to aver a specific prospective contract which was known to Stradley, Ronon and with which appellee intentionally interfered. However, prospective contractual relations are, by definition, not as susceptible of definite, exacting identification as is the case with an existing contract with a specific person. “Anything that is prospective in nature is necessarily uncertain.” Glenn v. Point Park College, supra, 441 Pa. at 480, 272 A.2d at 898. Among the relations protected against intentional interference is the opportunity to sell or buy real property. See: Restatement (Second) of Torts § 766B, comment c.

It is alleged in the instant complaint that at the time Stradley, Ronon filed the initial state court action, Kelly-Springfield had initiated efforts to find a new buyer, and Stradley, Ronon was aware of such efforts. Appellant further averred that potential buyers, including National Life Insurance Co., had expressed interest but had been deterred by the pending legal action commenced by Stradley, Ronon. These averments, we conclude, were sufficient to demonstrate the existence of prospective contractual relations. Neither case law nor Section 766B of the Restatement (Second) of Torts, which purports to define the tort of interference with a prospective contractual relation, requires an averment that the tortfeasor have knowledge of a specific third person whom its conduct prevented from entering a business relation with the plaintiff. See: Breslin v. Vornado, 559 F.Supp. 187 (E.D.Pa.1983).

It also was not fatal to appellant’s cause of action that an agreement for the sale of the warehouse property was ultimately reached with National Life Insurance Company. The complaint contains averments that a resale was unnecessarily delayed by the interference of D’Ambro and Stradley, Ronon and that actual damage was caused thereby. This was sufficient.

Appellee contends that the amended complaint is insufficient because it fails to aver that the alleged interference was improper. The argument is made that any interference with appellant’s efforts to resell the property was incidental to and a necessary consequence of conduct that was otherwise proper. The inquiry to be made by a reviewing court was identified by the Supreme Court in Adler, Barish, Daniels, Levin and Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175 (1978), cert. denied, 442 U.S. 907, 99 S.Ct. 2817, 61 L.Ed.2d 272 (1979), when it quoted from comment b of Section 767 of the Restatement (Second) of Torts as follows:

“Privilege to interfere, or interference not improper. Unlike other intentional torts such as intentional injury to person or property, or defamation, this branch of tort law has not developed a crystallized set of definite rules as to the existence or non-existence of a privilege to act in the manner stated in §§ 766, 766A or 766B. Because of this fact, this Section is expressed in terms of whether the interference is improper or not rather than in terms of a specific privilege to act in the manner specified. The issue in each case is whether the interference is improper or not under the circumstances; whether, upon a consideration of the relative significance of the factors involved, the conduct should be permitted without liability, despite its effect of harm to another.”

Supra, 482 Pa. at 433 n. 17, 393 A.2d at 1184 n. 17 (emphasis added). The factors to be considered in determining whether interference is improper have been identified at Section 767 of the Restatement (Second) of Torts as follows:

§ 767. Factors in Determining Whether Interference is Improper
In determining whether an actor’s conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following factors:
(a) the nature of the actor’s conduct,
(b) the actor’s motive,
(c) the interests of the other with which the actor’s conduct interferes,
(d) the interests sought to be advanced by the actor,
(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,
(f) the proximity or remoteness of the actor’s conduct to the interference and
(g) the relations between the parties.

A lawyer does not act improperly when he or she, in good faith, files a civil action to protect a client’s legitimate interests. Restatement (Second) of Torts, § 773. The averments of the complaint in this case, however, are that Stradley, Ronon did not act in good faith to preserve a legally protected interest of a client but for the purpose of harassing Kelly-Springfield and interfering wrongfully with its efforts to resell the warehouse property. Such an interference is not proper and does not serve to protect a legally recognized interest of the client. We conclude, therefore, that the averments of the complaint are sufficient to state a cause of action for intentional interference with the prospective business relations of Kelly-Springfield.

The order sustaining preliminary objections in the nature of a demurrer to appellant’s amended complaint is reversed, and the case is remanded for further proceedings. Jurisdiction is not retained.

OLSZEWSKI and BROSKY, JJ., file concurring opinions.

OLSZEWSKI, Judge,

concurring:

I concur in the majority’s disposition of this case. I write separately only to emphasize the unique factual posture presented which gives rise to the inference of possible malice necessary to allow the causes of action against an attorney for wrongful use of civil process and interference with a prospective contractual relationship to proceed.

Attorneys, by the nature of their profession, are more susceptible to claims of wrongful use of civil process because they are intimately involved with the majority of litigation which occurs. In recognition of this, the drafters of the Restatement included Comment (d) which provides as follows:

“An attorney who initiates a civil proceeding on behalf of his client or one who takes any steps in the proceeding is not liable if he has probable cause for his actions; and even if he has no probable cause and is convinced that his client’s claim is unfounded, he is still not liable if he acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim. (See § 676). An attorney is not required or expected to prejudge his client’s claim, and although he is fully aware that its chances of success are comparatively slight, it is his responsibility to present it to the court for adjudication if his client so insists after he has explained to the client the nature of the chances.
If, however, the attorney acts without probable cause for belief in the possibility that the claim will succeed, and for an improper purpose, as, for example, to put pressure upon the person proceeded against in order to compel payment of another claim of his own or solely to harass the person proceeded against by bringing a claim known to be invalid, he is subject to the same liability as any other person.”

RESTATEMENT (SECOND) TORTS § 674, Comment (d). Thus, recognition that litigation is the business of attorneys offers a modicum of protection from these types of actions.

This recognition, however, does not offer absolute immunity from a suit based upon wrongful use of civil process. An attorney who misuses the courts to harass another can be liable. Stradley, Ronon argues here that they acted primarily to obtain a proper adjudication of D’Ambro’s claim. This may be true and is not being decided today. The precise issue today is whether the facts, as pled, give rise to a reasonable inference that Stradley, Ronon misused civil process and interfered with a prospective contractual relationship. Creeger Brick v. Mid-State Bank, 385 Pa.Super. 30, 32-33, 560 A.2d 151, 152 (1989). Thus, a careful examination of the facts pled is necessary.

In the case sub judice, Stradley, Ronon filed an action in state court on behalf of their client, D’Ambro, for specific performance of the sales agreement, or, alternatively for monetary damages. That action was also listed as a lis pendens. I would agree with Stradley, Ronon that if this were all that were pled, no cause of action would be stated. No matter how invalid his claim, D’Ambro was entitled to order his attorneys to file the action. The allegations do not end there, however. The pleadings further allege that Stradley, Ronon voluntarily withdrew the state court action after a hearing had been scheduled on the matter; then filed an identical suit in federal court and caused that second action to listed as a lis pendens. Plaintiffs amended complaint, paragraphs 20-27. It is this withdrawal of the state court action, which effectively avoided a hearing on its merits, and the subsequent filing of an identical federal action, which gives rise to a reasonable inference that Stradley, Ronon acted to harass Kelly-Springfield by bringing a claim known to be invalid. The same inference of improper intent supports the cause of action for interference with a prospective contractual relationship.

It may be that Stradley, Ronon was acting primarily to obtain a proper adjudication of D’Ambro’s claim throughout the course of conduct which gave rise to this suit. It is possible that further discovery may indicate that no cause of action lies in this matter, or that the evidence presented will not prove the necessary malice, or that the finder of fact will not draw the inference as outlined above. At this point in the proceedings, however, Stradley, Ronon has admitted all the well-pled facts and Kelly-Springfield is entitled to the benefit of that inference.

BROSKY, Judge,

concurring.

I agree with the majority that the complaint can be read to state a cause of action for wrongful use of civil process, and, therefore join the opinion to the extent of that holding.

An attorney is employed as an agent for purposes of legal representation by the client. He or she acts as the representative of the client and, for the most part, is bound by ethical considerations to do as the client wishes. To impute the motivations of the client to the attorney would be grossly unfair to attorneys everywhere and greatly impede our legal system. Thus, only when the attorney can be legitimately found to be abusing the civil process should he or she be found liable upon a cause of action. As my colleague Judge Olszewski notes in his concurrence, an attorney is quite susceptible to allegations of wrongfully using the civil process because attorneys are charged with the obligation of instituting actions on behalf of their clients. We do not want to see an environment develop that allows an attorney’s motivations to be questioned and a lawsuit filed against the attorney every time a case is lost.

      . The trial court’s order dismissed all counts of the amended complaint against the lawyer. Such an order is final and immediately appealable. U.S. National Bank v. Johnson, 506 Pa. 622, 487 A.2d 809 (1985); Chiricos v. Forest Lakes Council Boy Scouts of America, 391 Pa.Super. 491, 571 A.2d 474 (1990).

      . The causes of action against D’Ambro for breach of contract, wrongful use of civil process and intentional interference with prospective contractual relationships remain undetermined.


author: OLSZEWSKI, Judge:

text:
    596 A.2d 874
    COMMONWEALTH of Pennsylvania v. Clayton HAYES, a/k/a Tyde Porter, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 29, 1991.
    Filed Sept. 10, 1991.

      Mark S. Greenberg, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before OLSZEWSKI, KELLY and BROSKY, JJ.
   OLSZEWSKI, Judge:

This is an appeal nunc pro tunc from the judgment of sentence imposed upon appellant, Clayton Hayes, on April 6, 1988. Following a non-jury trial before the Honorable Legróme D. Davis, appellant was convicted of robbery and conspiracy. Post-trial motions were denied. Appellant was sentenced to concurrent terms of not less than two and one-half W nor more than seven (7) years imprisonment. No direct appeal was filed. Appellant filed a petition for relief under the Post-Conviction Relief Act, 42 Pa.C.S.A. § 9541, et seq. (Purdon’s Supp.1988), and present counsel was appointed. After a hearing, the Honorable James D. McCrudden granted appellant permission to file this appeal nunc pro tunc.

On appeal, appellant claims that the trial court erred in allowing the Commonwealth to impeach its witness with his preliminary hearing notes of testimony and to use those notes as substantive evidence. Appellant further argues that his jury waiver colloquy was defective because he was not told that he is presumed to be innocent, the Commonwealth bears the burden of proving him guilty beyond a reasonable doubt, and the charges of robbery and conspiracy were not defined. We find both contentions to be meritless and affirm the judgment of sentence.

It was adduced at trial that on August 1,1987, at approximately 9:00 p.m., appellant and another man approached Arthur Whaley from behind as he was walking down Point Breeze Avenue in Philadelphia. The two then cornered the victim and punched him on the side of his head. One took his wallet, the other took his watch and then they both fled. Mr. Whaley recognized appellant because he had seen him around the neighborhood during the past six to eight years.

At trial, Mr. Whaley first testified that the other man, not appellant, took both his wallet and his watch. The Commonwealth was then permitted, over appellant’s objection, to introduce Mr. Whaley’s preliminary hearing testimony as substantive evidence. At the preliminary hearing, Mr. Whaley testified that appellant took his wallet and the other man his watch. After being confronted with this testimony, Mr. Whaley conceded that his memory was fresher at the preliminary hearing than at trial and that he could not remember which man took what. He was certain, however, that one man took his wallet and the other took his watch.

Appellant contends that the trial court erred by allowing the Commonwealth to impeach Mr. Whaley, the complainant, with his preliminary hearing testimony and to use that testimony as substantive evidence. This argument finds no support under the current state of Pennsylvania law. In Commonwealth v. Brady, 510 Pa. 123, 131, 507 A.2d 66, 70 (1986), our Supreme Court squarely held that “otherwise admissible prior inconsistent statements of a declarant who is a witness in a judicial proceeding and is available for cross-examination may be used as substantive evidence to prove the truth of the matters asserted therein.” In overruling a line of precedents limiting the use of a non-party witness’s prior inconsistent statements to impeachment, the Court reasoned that a “prior statement can be viewed as possessing superior indicia of reliability as it was rendered at a point in time closer to the event described — usually much closer — when memory will presumably be fresher and opportunity for fabrication lessened.” Id., 510 Pa. at 130, 507 A.2d at 69.

Appellant points out that the prior inconsistent statements allowed to be used as substantive evidence in Brady were given to the police on the same day the event occurred and were corroborated by physical evidence and other testimony. Appellant avers that Mr. Whaley’s uncorroborated preliminary hearing testimony “does not have the same quality of reliability” and thus should not have been admitted. (Appellant’s brief at 5.) We find this attempt to distinguish Brady by questioning the reliability of Mr. Whaley’s preliminary hearing testimony unconvincing.

In Commonwealth v. Mott, 372 Pa.Super. 133, 140-42, 539 A.2d 365, 369 (1988), this Court held a witness’s prior inconsistent statement given at a preliminary hearing to be “equally if not more reliable [than the Brady statement], since it was made close in time to the assault and was given while the declarant was under oath.” Likewise, in Commonwealth v. Harris, 383 Pa.Super. 94, 556 A.2d 445 (1989), this Court permitted a defense counsel to use the prior inconsistent preliminary hearing testimony of a witness as substantive evidence in his closing arguments at trial. “[T]he prior testimony of [the witness] had not only been given at a point closer in time to the event described, but it had been given under oath at a time when the witness had been subjected to cross-examination.” Id. 510 Pa. at 98, 556 A.2d at 446. Consequently, we find preliminary hearing statements to be “rendered under highly reliable circumstances assuring that they were voluntary, knowing, and understanding.” Brady, supra, 510 Pa. at 133, 507 A.2d at 71.

Since Mr. Whaley was both a witness in a judicial proceeding and was available for cross-examination, he met Brady’s two-pronged test for the admission of an out-of-court statement. Commonwealth v. Sopota, 403 Pa.Super. 1, 10, 587 A.2d 805, 809 (1991) (en banc). It has also been established that his preliminary hearing statements were reliable. They were made within two months after the crime, when admittedly his memory was better than at trial. (N.T. 28-30.) Furthermore, unlike the prior inconsistent statements in Brady, Mr. Whaley’s prior testimony was given while he was under oath and subjected to cross-examination. Therefore, Mr. Whaley’s inconsistent preliminary hearing testimony was admissible under Brady both for impeachment and as substantive evidence. Commonwealth v. Patterson, 392 Pa.Super. 331, 572 A.2d 1258 (1990); Commonwealth v. Troy, 381 Pa.Super. 326, 553 A.2d 992 (1989).

Appellant next contends that the jury waiver colloquy was defective because he was not informed of his presumption of innocence, or that the Commonwealth had the burden of proving him guilty beyond a reasonable doubt. Additionally, appellant claims the crimes with which he was charged were not defined for him.

A defendant has the right to waive a jury trial; this waiver must be knowing and intelligent as evidenced by the colloquy. Pa.R.Crim.P. 1101, 42 Pa.C.S.A., Commonwealth v. Williams, 310 Pa.Super. 501, 456 A.2d 1047 (1983). Cases have also interpreted Rule 1101 to require a waiver to be knowing and voluntary. Id. To be valid, the waiver must be an intentional relinquishment or abandonment of a known right or privilege, and the accused must be aware of the “essential protections inherent in a jury trial as well as the consequences attendant upon a relinquishment of those safeguards.” Commonwealth v. Quarles, 310 Pa.Super. 74, 79, 456 A.2d 188, 191 (1983), citing Commonwealth v. Morin, 477 Pa. 80, 383 A.2d 832 (1978). The essential ingredients in a jury trial, which are necessary to understand the significance of the right a defendant is waiving include: the jury will be chosen from members of the community, the verdict will be unanimous, and the accused will be allowed to participate in the selection of the jury panel. Commonwealth v. Lott, 398 Pa.Super. 573, 581 A.2d 612 (1990); Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973). After a thorough review of the colloquy, it is apparent that appellant was apprised of these rights which he acknowledged he understood.

Appellant argues that the colloquy was defective because he was not informed that the Commonwealth had to prove guilt beyond a reasonable doubt. This argument was rejected in Quarles, supra, where the court held that the appellant was informed of the essential ingredients of a jury trial and that the colloquy was not defective for failure to inform the appellant that the jury must find him guilty beyond a reasonable doubt. See also Commonwealth v. Pollard, 288 Pa.Super. 20, 430 A.2d 1192 (1981) (failure to define reasonable doubt did not make jury waiver colloquy defective). Appellant’s allegations were not essential elements which he was required to be apprised of before making a knowing and intelligent waiver. In addition, appellant signed a written waiver which is accorded prima facie validity that appellant was fully aware of his rights. Commonwealth v. Smith, 498 Pa. 661, 450 A.2d 973 (1982). We agree with appellant that a jury trial is a fundamental right of the criminal justice system and that public policy favors jury trials over bench trials (appellant’s brief at 6); however, Pennsylvania law also acknowledges a right to waive a jury trial. As evidenced by the colloquy, appellant effected a knowing and voluntary waiver.

Judgment of sentence affirmed.

      . Appellant’s statement that Mr. Whaley was unable to identify him at trial is clearly refuted by the record (N.T. 14, 27).

      . Appellant also raises an ineffectiveness of counsel claim for failure of trial counsel to apprise him of his jury trial rights. Because we have determined that appellant’s allegations were not jury trial rights, counsel cannot be found to be ineffective for failing to apprise appellant of them.