author: CIRILLO, Judge:

text:
    635 A.2d 1062
    COMMONWEALTH of Pennsylvania v. Joel R. DAVIS. In re Petition to Intervene by WJAC, INC.
    Superior Court of Pennsylvania.
    Argued Sept. 1, 1993.
    Filed Dec. 20, 1993.

      Michael L. Stibich, Johnstown, for appellant.
    Before ROWLEY, President Judge, and WIEAND and CIRILLO, JJ.
   CIRILLO, Judge:

WJAC, Incorporated (WJAC) appeals from an order entered in the Court of Common Pleas of Jefferson County prohibiting the broadcasting and/or photographing of all Pennsylvania criminal judicial proceedings and maintaining possession of WJAC’s confiscated video tape. After an extensive review of the record, rules of this Commonwealth, case law and applicable constitutional provisions, we affirm the trial court’s order.

The underlying facts of this case are not in dispute. Radio personality Joel R. Davis (defendant) was tried for criminal homicide, inter alia, before a jury. Due to the high level of community interest in the case, a jury was impaneled after five and one-half days and 103 voir dire examinations. Thereafter, the jurors were sequestered.

During the second day of trial, and at the request of both the District Attorney and the defendant’s attorney, the proceedings were moved from the courthouse to the alleged crime scene, the victim’s residence.. See Pa.R.Crim.P. 1112. The proceedings were moved to enable the jury to receive the investigating officer’s testimony as to what he found at the crime scene.

Prior to departing to the crime scene, certain members of the print and radio broadcast media inquired as to whether they would be permitted to take pictures during the jury viewing. Although no formal order was issued, the record indicates that the Honorable Edwin L. Snyder directed from the bench that no pictures would be permitted of the jury, the defendant, or court personnel.

On behalf of WJAC, freelance photographer David Setree went to the crime scene to videotape the proceedings. Shortly after he arrived at the scene, both the Clerk of Courts and a member of the print media informed Mr. Setree of Judge Snyder’s order. Despite this information, Mr. Setree continued to film the events. He filmed the jurors as they departed from their vehicles and as they received instructions from Judge Snyder. After being apprised of Mr. Setree’s conduct, Judge Snyder directed that the videotape be confiscated.

Judge Snyder granted WJAC’s petition to intervene, which challenged the directive and subsequent seizure of the videotape. After a hearing, Judge Snyder issued an order affirming the propriety of the directive and maintaining possession of the tape. Four months later, Judge Snyder granted WJAC’s petition for leave to appeal nunc pro tunc. On appeal, WJAC raises two questions for our consideration:

(1) Whether the photography of criminal judicial proceedings is prohibited in Pennsylvania no matter where the proceedings are held?
(2) Whether the order of the trial court prohibiting the photography of criminal judicial proceedings held outside the courtroom and its environs and the enforcement of that order violates WJAC’s First Amendment rights of news-gathering and communication?

I. AMBIT OF RULE 328

Rule 328 of the Pennsylvania Rules of Criminal Procedure is the focal point of this appeal. In pertinent part, Rule 328 provides:

The taking of photographs in the courtroom or its environs or radio or television broadcasting from the courtroom or its environs during the progress of or in connection with any judicial proceedings ... is prohibited. The environs of the courtroom is defined as the area immediately surrounding the entrances and exits to the courtroom.

(emphasis added).

WJAC contends that Judge Snyder’s directive and confiscation of its videotape exceeded the scope of Rule 328 and, therefore, interfered with its First Amendment right of newsgathering. Specifically, WJAC asserts that the jury viewing at the alleged crime scene is not covered by Rule 328 in that the viewing did not take place within the “courtroom or its environs.” We disagree. As Judge Snyder aptly stated in his opinion, “if photography of judicial proceedings in criminal cases is prohibited in the courtroom and its environs, then likewise photography of such proceedings should not be permitted wherever they must be held.”

In support of its contention that the facts of this case are not covered by Rule 328, WJAC reasons that because Rule 1112 permits jury viewings, the Pennsylvania Supreme Court would have specifically included these jury viewings in Rule 328 had they so intended. We disagree, however, and find that Judge Snyder’s order was in accordance with Rule 328.

What is considered a “court” in the legal sense is a question of law that may have practical importance where, as in this case, the applicability of a statute or rule referring to a court or to a proceeding before a court is at issue. The common law defined court as a place where justice is judicially administered. 20 Am.Jur.2d Courts § 1 (1965). The modern conception of a court, however, refers more to a governmental institution rather than to a place. Id. “More than the place where judicial functions are performed, a court is part of the government consisting of one person or several persons called upon and authorized to administer justice.” 20 Am.Jur.2d Courts § 36 (1965).

The United States Supreme Court has stated that “the courtroom in Anglo-American jurisprudence is more than a location with seats for a judge, jury, witnesses, defendant, prosecutor, defense counsel and public observers.” Estes v. Texas, 381 U.S. 532, 561, 85 S.Ct. 1628, 1642, 14 L.Ed.2d 543 (1965) (Warren, C.J., concurring). The Supreme Court of Pennsylvania referred to a court as that which, “when in session, is present in every part of the place set apart for its own use, and for the use of its officers, jurors and witnesses; and misbehavior anywhere in such place is misbehavior in the presence of the court.” In Re Mack, 386 Pa. 251, 126 A.2d 679 (1956) (quoting Ex parte Savin, 131 U.S. 267, 277, 9 S.Ct. 699, 702, 33 L.Ed. 150 (1889)).

Although courts are thought to comprise only organizations of a permanent nature, history has shown that a court may be created for a specified period of time or for the duration of a specified event. Even if one were to narrowly view the meaning of a court as a place or physical plant, that interpretation cannot be limited to a four-walled room in a courthouse. One reference defines a court as “a space which is uncovered, but which may be partly or wholly inclosed by buildings or walls.” Black’s Law Dictionary 318 (5th ed. 1979) (emphasis added). Instantly, Judge Snyder ordered that the police officer’s testimony be given at the alleged crime scene. Therefore, the “uncovered” front lawn of the crime scene where the jury viewing took place is just as much a court as is the four-walled budding from which Judge Snyder issued his directive.

In conclusion, we find that, for all intents and purposes, the alleged crime scene where the jury viewing took place became, temporarily, the “courtroom.” Therefore, Judge Snyder correctly interpreted and applied Rule 328 to the facts before him. “If a judge may, for the purpose of maintaining order and decorum, control the taking of pictures in his own courtroom, it can hardly be successfully argued that his power stops when one closes the courtroom door.” Tribune Review Publishing Co. v. Thomas, 254 F.2d 883, 885 (3d Cir.1958).

II. Constitutional Claim,

WJAC does not challenge the constitutionality of Rule 328; rather, it contends that Judge Snyder’s extension of the Rule beyond the “courtroom or its environs” is an impermissible time, place and manner restriction of its constitutionally protected rights. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). Notwithstanding the question of whether Judge Snyder’s order was authorized by Rule 328, we find that his order prohibiting photography of the jurors, the defendant, and the court personnel during the jury viewing is not an unreasonable time, place and manner restriction.

WJAC cites federal precedent for the proposition that “a time, place and manner restriction may be placed on otherwise constitutionally protected conduct if such restriction is reasonable, necessitated by a significant governmental interest, and narrowly tailored to promote that interest.” (WJAC’s Brief at p. 14). Regarding the facts of this case, WJAC contends that because the jury viewing was conducted outside, its photographing or videotaping neither disrupted the proceedings, nor impaired any rights of the participants. In addition, WJAC contends that its videotaping did not affect any significant governmental interests. We cannot agree.

Specifically, WJAC argues that no “particularized concerns about the jurors” are at stake in this case. It bases its belief on the fact that all of the proceedings were open to the public — jury selection, the trial, sentencing, and the jurors’ names were a matter of public record. In addition, WJAC contends that its conduct had no chance of “mak[ingj the jurors celebrities,” as it (Mr. Setree) was positioned over 160 feet away from the viewing. It asserts that “[djistance alone may well have eliminated any interference.” (WJAC’s Brief at p. 20). Last, WJAC argues that a juror’s right to personal privacy, alone, is not a significant governmental interest necessitating the prohibition in question. In our view, WJAC has ignored the extraordinary effects of cameras on judicial proceedings.

The United States Supreme Court has held that the First and Fourteenth Amendments to the United States Constitution protect the right of the press and the public to attend criminal trial proceedings. See Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Richmond, supra; U.S. Const. amend. I; U.S. Const, amend XIV, § 1; see also Commonwealth v. Fenstermaker, 515 Pa. 501, 504 n. 1, 530 A.2d 414, 416 (1987) (holding that access rights of the news media, and of the general public, are identical in scope). This right, however, is not unqualified. The First Amendment does not guarantee the media a right of access to information greater than that of the general public. See, e.g., Houchins v. KQED, Inc., 438 U.S. 1, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978); Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978); Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); McMullan v. Wohlgemuth, 453 Pa. 147, 308 A.2d 888 (1973) (relying on Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965); New York Times v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (Stewart, J., concurring)). More specifically, there is no United States Supreme Court case or Pennsylvania case which suggests that this right of access includes a right to televise, record, or otherwise broadcast judicial proceedings.

To the contrary, the Supreme Court has indicated that the First Amendment does not guarantee a positive right to televise or broadcast criminal judicial proceedings. In Estes, Justice Harlan, in concurrence, opined that:

No constitutional provision guarantees a right to televise trials ... Once beyond the confines of the courthouse, a news-gathering agency may publicize, within wide limits, what its representatives have heard and seen in the courtroom. But the line is drawn at the courthouse door; and within, a reporter’s constitutional rights are no greater than those of any other member of the public.

381 U.S. 532, 588-89, 85 S.Ct. 1628, 1662-63 (1965) (Harlan, J., concurring); see also Nixon, supra; Tribune Review Publishing Co. v. Thomas, 254 F.2d 883 (3d Cir.1958); In re Mack, supra.

The denial of the right of access must be necessitated by a compelling governmental interest and narrowly tailored to serve that interest. Globe, 457 U.S. at 606-07, 102 S.Ct. at 2620. However, limitations on the right of access that resemble time, place, and manner restrictions on protected speech are not subjected to strict scrutiny. Id. at 606 n. 17, 102 S.Ct. at 2620 n. 17; Richmond, 448 U.S. at 581, n. 18, 100 S.Ct. at 2829 n. 18; United States v. Hastings, 695 F.2d 1278, 1282 (11th Cir.1983).

Judge Snyder’s directive in this case. fits the latter description. Rule 328 of the Pennsylvania Rules of Criminal Procedure, as it was applied to the case at hand, did not prohibit the public or the media from attending and observing the jury viewing; rather, it merely imposed a restriction on the manner by which the media, or persons generally, could gather the news. Judge Snyder’s order, therefore, merely limited the right of access. Globe, supra.

A time, place, and manner restriction of the right to access judicial proceedings is constitutional if it is reasonable, if it promotes significant governmental interests, and if it does not unwarrantedly abridge opportunities for communication of thought. Richmond, supra. In Richmond, the Court held that, “[j]ust as a government may impose reasonable time, place, and manner restrictions upon the use of its streets in the interest of such objectives as the free flow of traffic ... so may a trial judge in the interest of the fair administration of justice, impose reasonable limitations on the access to a trial.” 448 U.S. at 581 n. 18 (citations omitted); see also Young v. American Mini Theatres Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976).

Having defined the applicable level of scrutiny, we now weigh the countervailing governmental interests at stake. First, we address those interests which tend to favor the prohibition of media coverage of all judicial proceedings. Then, we will set forth those interests which tend to favor unrestricted or uninhibited television access to judicial proceedings.

Initially, we note that Judge Snyder’s ban will not be examined in the context of the defendant’s Sixth Amendment right to a fair trial because the defendant has expressly waived all such objections. See Note 5, supra. This opinion will, however, speak to the fundamental notion of fairness as it relates to the government’s and the court’s interest in the administration of justice.

A. Reasons to Prohibit the Media Coverage of Judicial Proceedings

Preliminarily, we note that the primary concern of our court system is to ascertain the truth. Contrary to WJAC’s contention that advancements in media equipment have eliminated many of the concerns articulated by Judge Snyder, experience teaches us that there are many situations in which undetectable subtleties can result in an unfair trial. Notwithstanding the open and obvious dangers that the media presents, we must be aware of, as Justice William O. Douglas once wrote, “the insiduous influences which it puts to work in the administration of justice.” Douglas, The Public Trial and the Free Press, 33 Rocky MtL.Rev. 1 (1960).

1. Potential Impact on Jurors

“The potential impact of television [media coverage, generally] on the jurors is perhaps of the greatest significance.” Estes, 381 U.S. at 545, 85 S.Ct. at 1634. The Court in Estes noted that although a jury is likely to be sequestered in high profile criminal trials, like the instant case, the jury will still enter the jury box knowing that they will be the subjects of great publicity and attention. Id.

Where pretrial publicity of all kinds has created intense public feeling which is aggravated by the telecasting or picturing of the trial the televised jurors cannot help but feel the pressures of knowing that friends and neighbors have their eyes upon them ... [and, thus, the jurors] may well be led ‘not to hold the balance nice, clear and true between the State and the accused.’

Id. (citation omitted from original). “It is easier for eight or nine elderly men to feel their way towards unanimity if they are not compelled to conduct their converging maneuvers under the microscopes and telescopes of the press, but are permitted to shuffle about a little in slippers.” Herbert Albert Laurens Fisher, An International Experiment (1921). This knowledge of public sentiment, therefore, may impact the jurors’ decisions.

Next, the knowledge that the trial is being televised may diminish the jury’s attentiveness. Estes, 381 at 546, 85 S.Ct. at 1634; see also Joseph F. Flynn, Prejudicial Publicity in Criminal Trials: Bringing Sheppard v. Maxwell into the Nineties, 27 New Eng.L.Rev. 857 (1993); Nancy T. Gardner, Cameras in the Courtroom: Guidelines for State Criminal Trials, 84 Mich.L.Rev. 475 (1985). “Human nature being what it is, not only will a juror’s eyes be fixed on the camera, but also his mind will be preoccupied with the telecasting rather than with the testimony.” Estes, 381 U.S. at 546, 85 S.Ct. at 1634; see also Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S.Ct. 1507, 1522-23, 16 L.Ed.2d 600 (1966) (“Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused.”). Finally, with media coverage of judicial proceedings, new trials would be rendered pointless as potential jurors will often have seen and heard the original trial, or portions thereof, when it was broadcasted.

In this case, the psychological effects of the camera on the jurors are readily apparent. The record indicates that Mr. Setree arrived at the scene of the jury viewing just prior to the arrival of the jurors. Upon the jurors arrival, Mr. Setree commenced filming them as they exited their automobiles. Aware of this fact, one of the jurors refused to leave his or her automobile until Mr. Setree ceased videotaping. This episode, alone, demonstrates the powerful influence of the camera.

2. Potential Impact on Witnesses

The knowledge that the proceedings are being filmed may have various consequences on the quality of testimony given at trial. Some witnesses “may be demoralized and frightened, some cocky and given to overstatement; memories may falter, as with anyone speaking publicly, and [the] accuracy of statements] may be severely undermined.” Estes, 381 U.S. at 547, 85 S.Ct. at 1635; see also United States v. Kerley, 753 F.2d 617, 622 (7th Cir.1985) (“Even in an era of lightweight, silent, unobtrusive television cameras, there is a sense that the knowledge of being televised might cause the ... witnesses to be distracted — whether by embarrassment, self-consciousness, anxiety or desire to ‘star.’ ”).

The psychological effects of distractions on witnesses have been considered a serious enough threat to the fair administration of justice to justify excluding spectators from the courtroom during the testimony of particular witnesses. Specifieally, courts have prohibited public attendance in order to protect witnesses against possible reprisal, and to prevent embarrassment and emotional disturbance to witnesses. See People v. Hagan, 24 N.Y.2d 395, 300 N.Y.S.2d 835, 248 N.E.2d 588 (1969) (spectators excluded due to witness’ fear of reprisal for testifying against alleged murderers of Malcolm X); State v. Smith, 123 Ariz. 243, 599 P.2d 199 (1979) (excluding spectators during a rape victim’s testimony) and; State v. Santos, 122 R.I. 799, 413 A.2d 58 (1980) (excluding spectators while witness testified to details of a sexual assault). If these concerns justify excluding the public and print media, they certainly justify banning the television medium, where the risk of inhibiting complete and honest testimony is even greater. See, e.g., Hagan, supra (excluding the electronic media because of the fear of reprisals against witnesses).

3. Personal Privacy Interests

WJAC asserts that the actions of Mr. Setree did not interfere with the personal privacy of any trial participant as Mr. Setree was positioned approximately 160 feet away from the viewing. In addition, WJAC contends that no privacy rights were violated because, prior to the incident in question, many of the juror’s names were already made public. We disagree •with WJAC’s reasoning and conclusions because, due to the pervasiveness of television coverage, the publication of names are different than the telecasting of faces.

Opponents of broadcasting judicial proceedings argue that the privacy interests of trial participants, are more easily threatened by the broadcast than by the print media. See Cotsirilos & Jenner, Cameras in the Courtroom — An Opposing View, 111. Trial Law.J. at 24 (Fall-Winter 1982) (television coverage magnifies the trauma of crime victims); Note, Televised Trials: Constitutional Constraints, Practical Implications, and State Expiramentation, 9 Loy.U.Chi.L.J. 910, 918 (1978) (“The camera’s unique ubiquitousness dictates a reconsideration of conventional notions of privacy when evaluating that medium’s impact on a judicial proceeding.”). The theory that television is a more pervasive medium than newsprint has been substantiated by studies conducted on the subject. In fact, a 1981 survey indicates that while 98% of American homes have a television set, only 54% of Americans purchase morning and/or evening newspapers. Note, Television in the Courtroom — -Limited Benefits, Vital Risks?, 3 Comm. 35, 41 (1981). With these statistics in mind, the psychological effects of broadcasting on jurors and other trial participants become even more evident.

4. Burden on Trial Judges

The presence of television during judicial proceedings places additional responsibilities on the trial judge. Estes, 381 U.S. at 548, 85 S.Ct. at 1635. For example, cameras burden judges by making it more difficult to empanel an impartial jury in the event of a new trial, by requiring larger jury panels, and by increasing the necessity of marshals and the sequestration of jurors. See Judicial Conference Ad Hoc Committee on Cameras in the Courtroom, Report to the Chief Justice of the United States and Members of the Judicial Conference of the United States (1984). These burdens serve to frustrate the trial judge’s primary task of seeing that the accused receives a fair trial.

5. Impact on the Defendant

The effects of broadcasting judicial proceedings on the defendant must not be overlooked. The camera may prejudice the defendant by affecting his or her disposition and testimony at trial. “The inevitable close-ups of his gestures and expressions during the ordeal of his trial might well transgress his personal sensibilities, his dignity, and his ability to concentrate on the proceedings before him.... ” Estes, 381 U.S. at 549, 85 S.Ct. at 1636. In addition, television coverage might deprive a defendant of his or her right to effective counsel. Not only may the broadcasting serve to distract counsel, but may also tempt lawyers, judges, jurors and witnesses to play to the public audience. Id.

In summary, the broadcasting and/or filming of judicial proceedings may have profound effects on the jurors, the witnesses, the attorneys, the judge, and on the truth-determining function of the court itself. In light of these considerations, we find that filming or recording the participants to a court proceeding, while they are engrossed in the determination of matters of tremendous import, is repugnant to the high standard of judicial decorum to which our courts are accustomed.

B. Reasons for Allowing Uninhibited Television Access

We now turn to the competing interests which arguably favor permitting media coverage of judicial proceedings. Some assert that the First Amendment values which support public trials also support televised trials.

Three First Amendment philosophies have been set forth by the United States Supreme Court concerning the right of access. First, the right of access to criminal trials fosters public confidence in the fairness of the criminal justice system. Press-Enterprise, 464 U.S. at 507-08, 104 S.Ct. at 822-28; Globe, 457 U.S. at 606, 102 S.Ct. at 2620; Gannett Co. v. DePasquale, 443 U.S. 368, 382, 99 S.Ct. 2898, 2907, 61 L.Ed.2d 608 (1979). Although the number of seats in courtrooms are limited, the sure knowledge that anyone is free to attend gives assurance that a fair trial will be conducted.

Second, the right of access also aids in the public oversight of the judiciary. “Public access to criminal trials permits the public to participate in and serve as a check upon the judicial process — an essential component in our structure of self-government.” Globe, 457 U.S. at 606, 102 S.Ct. at 2620 (citations omitted); see also Justice Potter Stewart, Address at Yale Law School (Nov. 2, 1974), in 26 Hastings L.J. 631, 634 (1975) (“The primary purpose of the constitutional guarantee of a free press was ... to create a fourth institution outside Government as an additional check on the three official branches.”).

Finally, some assert that the right of access serves as a “community therapeutic value.” Press-Enterprise, 464 U.S. at 508-09, 104 S.Ct. at 823-24 (quoting Richmond Newspapers, 448 U.S. at 570, 100 S.Ct. at 2824). Criminal acts often provoke public outrage and the desire to retaliate. Opening the trials, therefore, may abate some of this hostility by showing the public that justice is being served.

After considering the aforementioned interests, we find that televising judicial proceedings would not further any of these First Amendment concerns. As noted above, the right of access to criminal trials promotes public confidence in the criminal justice system. Press-Enterprise, supra. This public confidence is attributable to the openness of the trials— their availability to public scrutiny. However, we cannot see any enhancement of this confidence by permitting television coverage of the proceedings. Similarly, we do not believe that a live recordation would enhance either the function of public trials as a check on judicial abuses, or as a truth-finding function. To the contrary, the Supreme Court has held that, “[t]he use of television ,.. cannot be said to contribute to [the truth determining process] ... [But] [r]ather its use amounts to the injection of an irrelevant factor into court proceedings.” Estes, 381 U.S. at 544, 85 S.Ct. at 1633.

Because Rule 328 of the Pennsylvania Rules of Criminal Procedure, and Judge Snyder’s application thereof, did not violate WJAC’s right of access and did not prohibit it from communicating to the public any of what its reporters observed, the application of the Rule was simply a limitation on the right of access. Globe, supra; Richmond, supra. We find, therefore, that Judge Snyder’s directive was a time, place and manner restriction which should not be subjected to strict scrutiny, but should be upheld as reasonable. Globe, supra; Richmond, supra. In light of the important governmental and institutional interests articulated above, Rule 328, generally, and as applied to the facts of this case, is a reasonable time, place and manner restriction, and is constitutional.

Order affirmed.

WIEAND, J., concurred in the result.

      . Pa.R.Crim.P. 1111(a) provides that "[t]he trial judge may, in his discretion, order sequestration of trial jurors in the interests of justice.” See also Pa.R.Crim.P. 326 (special orders governing widely publicized or sensational cases).

      . "The trial judge may in his discretion order a view by the jury.” Pa.R.Crim.P. 1112.

      . The record shows that no representative of WJAC was present at the issuance of Judge Snyder's directive.

      . In fact, the record shows that Mr. Setree telephoned a superior at WJAC’s newsroom and told him of the restriction before he recommenced filming. Whether Mr. Setree resumed filming at the direction of his superior, or on his own accord, is not evidenced in the record and is not at issue in this appeal.

      . The filing of a motion to intervene in a criminal case by the news media has long been recognized by this Commonwealth as an appropriate means of raising assertions of public rights of access to information regarding criminal case proceedings. Capital Cities Media, Inc. v. Toole, 506 Pa. 12, 22-23, 483 A.2d 1339, 1344 (1984).

      . The Commonwealth, via District Attorney Mark A. Wallisch, filed a stipulation consenting to WJAC’s petition. However, neither the Commonwealth nor the defendant of the underlying case submitted briefs to this court pursuant to this appeal and did not participate in oral argument.

      . The official Comment to Rule 328 provides that Rule 328 is not to be interpreted as precluding the use of recording devices for the preservation of testimony as permitted by the Rules.

      . For example, occupying powers established temporary courts in Germany and Japan after World War II. 20 Am.Jur.2d Courts § 1 (1965).


source: Caselaw Access Project

author: CIRILLO, Judge.

license: Public Domain

text:
    635 A.2d 1070
    Betty GREEN, Appellant, v. Lawrence VINGLAS and Walter P. Vinglas and Chrissy Reed A/K/A Christine Reed A/K/A Christina Reed and Donald Mento A/K/A Don Mento C/O Niagra Plastic and Martin Lecomte President St. Pietro Di Roma Italian Society and St. Pietro Di Roma Italian Society.
    Superior Court of Pennsylvania.
    Argued Oct. 19, 1993.
    Filed Dec. 20, 1993.
    Eric G. Zajac, Philadelphia, for appellant.

      Kevin D. Persio, Ebensburg, for Vinglas & Mentó, appellees.
    J. Michael Dorezas, Hollidaysburg, for Reed & Lecomte, appellees.
    Before CIRILLO, FORD ELLIOTT and CERCONE, JJ.
   CIRILLO, Judge.

Betty Green appeals from a judgment entered in the Court of Common Pleas of Cambria County sustaining appellees’ preliminary objections in the nature of a demurrer and dismissing Green’s action with prejudice. We affirm.

The instant action arose from an incident that occurred at the St. Pietro Di Roma Italian Society (Italian Society), one of the appellees in this case. On the evening of January 24, 1990, Green, while at the Italian Society, was allegedly injured as a result of an altercation between four individuals — Lawrence Vinglas, Walter Vinglas, waitress Chrissy Reed, and the Italian Society’s steward, Don Mentó — all of whom are appellees. Nearly two years later, on January 22, 1992, Green’s counsel filed a praecipe for writ of summons (writ) in Blair County. For reasons set forth below, the writ was not served on appellees within the requisite thirty day period. See Pa.R.C.P. 401. A complaint was then filed on July 24, 1992 and was served on all but two of the appellees. The writ was reissued on October 6, 1992, and duly served. By agreement of the parties, venue was transferred from Blair County to Cambria County, since all of the appellees reside in Cambria County.

Appellees filed preliminary objections, asserting that Green’s complaint should be dismissed with prejudice because the statute of limitations had expired before Green’s lawsuit was commenced. The trial court agreed and dismissed Green’s action with prejudice.

The facts leading up to the dismissal are as follows. Green asserts that she made a good faith effort to have the writ served by instructing the Blair County Prothonotary to have the sheriff serve it as quickly as possible. Along with the writ, Green gave the Prothonotary a check in the amount of $50.00 for filing. As instructed, the Blair County Prothonotary forwarded the writ to the Sheriff’s Office in Blair County. Apparently, in cases where service is to be made outside of Blair County, also called “deputized service,” the standard local practice is to advance the costs required for service of the writ. (Affidavit of Pat Imler, clerk at Blair County Sheriffs Office). In her affidavit, Green’s counsel avers that the costs were not advanced to the Cambria County Sheriff because she did not realize that appellees were located in Cambria County rather than Blair County; she was not aware that deputized service was necessary. Green’s counsel further contends that she never received a phone call from anyone at the Blair County Sheriffs Office or anyone in the Blair County Prothonotary’s Office notifying her of the additional fees required for service of the writ to Cambria County. As a result, the writ was not delivered to the Cambria County Sheriff and service was not effectuated before the statute of limitations had run.

Green appeals from the trial court’s decision to dismiss the action and raises the following issue for our review:

Whether appellant, after attempting in good faith to toll the statute of limitations and preserve her cause of action, should be denied her only remedy at law due to a clerical error beyond her control?

The trial court determined that Green “failed to meet her burden of good faith compliance” pursuant to the landmark case of Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976). Since all parties, along with the trial court, look to the Lamp decision to support their respective positions, we will examine Lamp and its progeny within the confines of the instant set of facts.

In Lamp, just days before the expiration of the two-year statute of limitations, plaintiffs attorney filed a praecipe for a writ of summons against the defendants for personal injuries sustained in an accident. Instead of delivering the writ to the sheriff for service, however, the plaintiff instructed the prothonotary to “issue and hold” the writ. In other words, no service was effectuated. A praecipe for reissuance of the writ, along with service, was made at a much later date. The defendants filed preliminary objections claiming that the original writ was a nullity due to plaintiffs “issue and hold” instructions and was, therefore, barred by the statute of limitations.

The Pennsylvania Supreme Court held that, pursuant to what is now Pa.R.C.P. 401(b)(5), when the writ was reissued, plaintiffs action was not barred by the statute of limitations. This, however, was not the end of the Court’s decision. In deciding whether the “issue and hold” instructions rendered the original filing ineffective, the Court set forth the following rule:

[W]e rule that henceforth, i.e., in actions instituted subsequent to the date of this decision, a writ of summons shall remain effective to commence an action only if the plaintiff then refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion---- [A] plaintiff should comply with local practice as to the delivery of the writ to the sheriff for service. If under local practice it is the prothonotary who both prepares the writ and delivers it to the sheriff, the plaintiff shall have done all that is required of him when he files the praecipe for the writ; the commencement of the action shall not be affected by the failure of the writ to reach the sheriff’s office where the plaintiff is not responsible for that failure. Otherwise, the plaintiff shall be responsible for prompt delivery of the writ to the sheriff for service.

Lamp, 469 Pa. at 478-79, 366 A.2d at 889. See also Rosenberg v. Nicholson, 408 Pa.Super. 502, 506, 597 A.2d 145, 147 (1991), appeal denied, 530 Pa. 633, 606 A.2d 903 (1992); Leidich v. Franklin, 394 Pa.Super. 302, 308, 575 A.2d 914, 917 (1990), appeal denied, 526 Pa. 636, 584 A.2d 319 (1990); Feher By Feher v. Altman, 357 Pa.Super. 50, 53, 515 A.2d 317, 319 (1986), appeal denied, 515 Pa. 622, 531 A.2d 430 (1987); Gould v. Nazareth Hospital, 354 Pa.Super. 248, 251, 511 A.2d 855, 857 (1986); Watts v. Owens-Corning Fiberglas Corp., 353 Pa.Super. 267, 270, 509 A.2d 1268, 1270 (1986), appeal denied, 514 Pa. 632, 522 A.2d 559 (1987).

In support of this ruling, the Lamp court espoused this rationale:

[TJhere is too much potential for abuse in a rule which permits a plaintiff to keep an action alive without proper notice to a defendant merely by filing a praecipe for a writ of summons and then having the writ reissued in a timely fashion without attempting to effectuate service. In addition, we find that such a rule is inconsistent with the policy underlying statutes of limitation of avoiding stale claims, and with that underlying our court rules of making the process of justice as speedy and efficient as possible---Our purpose is to avoid the situation in which a plaintiff can bring an action, but, by not making a good-faith effort to notify a defendant, retain exclusive control over it for a period in excess of that permitted by the statute of limitations.

Lamp, 469 Pa. at 477-78, 366 A.2d at 888-89 (footnotes omitted); see also Rosenberg, supra; Leidich, supra; Feher, supra; Gould, supra; Watts, supra.

“[O]ne’s ‘good faith’ effort to notify a defendant of the institution of a lawsuit is to be assessed on a case-by-case basis[.]” Leidich, 394 Pa.Super. at 311, 575 A.2d at 918. While there is no mechanical approach to apply in determining what constitutes a good faith effort to effectuate service, it is the plaintiff who has the burden of showing that his/her efforts were reasonable. Rosenberg, 408 Pa.Super. at 506, 597 A.2d at 147. “At a minimum, the good faith requirement in [Lamp ] mandates compliance with the Pennsylvania Rules of Civil Procedure and, importantly, local practice.” Feher, 357 Pa.Super. at 54, 515 A.2d at 319; see Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589, 511 A.2d 757 (1986). Depending upon the process in a particular county, stalling the legal machinery can be accomplished “by instructing either the prothonotary or the sheriff to hold the writ, by personally retaining the writ and not delivering it to the sheriff for service, or by neglecting to pay the sheriff his fee.” Farinacci 510 Pa. at 593-94, 511 A.2d at 759 (quoting Lamp, 469 Pa. at 472, 366 A.2d at 886).

Were we to look only at the Lamp decision itself, it would appear that Green has not engaged in the evils that Lamp was seeking to prevent when she unwittingly failed to pre-pay the sheriff’s office for deputized service. This was obviously an unintended delay. Clearly, the effect of Lamp should not be to punish those who make a good faith effort to comply with the local rules. When we look at the cases decided subsequent to Lamp, however, it appears as though Green has not met her burden of proving that she made a good faith effort to comply with local practice.

In Weiss v. Equibank, 313 Pa.Super. 446, 460 A.2d 271 (1983), for instance, plaintiffs filed a writ on the last day before the running of the statute. They failed, however, to give directions to the sheriff for service or to pay for the costs of service, as required by the local rules. In affirming the dismissal of plaintiffs’ case, this court stated:

First, neglecting to pay the sheriffs fee was one of the examples given by the supreme court [in Lamp v. Heyman ], of methods used by plaintiffs to delay service of the writ. Second, simple neglect or mistake is an example of failing to fulfill the responsibility of plaintiff or his counsel to see to it that the requirements for service are carried out. Untoward circumstances, such as a third person preventing delivery to the sheriff of the writ, may except a plaintiff from the rule of Lamp, but the facts of this case do not warrant such an exception.

Weiss, 313 Pa.Super. at 455, 460 A.2d at 275 (citations omitted); accord Watts, 353 Pa.Super. at 270, 509 A.2d at 1270.

Rosenberg, supra, echoed the rationale set forth in Weiss. There, it was determined that simple neglect regarding service requirements “may be sufficient to bring the rule in Lamp to bear[;] [t]hus, conduct that is unintentional that works to delay the defendant’s notice of the action may constitute a lack of good faith on the part of the plaintiff.” Rosenberg, 408 Pa.Super. at 510, 597 A.2d at 148. In Rosenberg, the appellant twice attempted to serve appellee at an incorrect address. In finding a lack of good faith on the part of the appellant, this court upheld the dismissal of appellant’s complaint, as the statute of limitations had run.

In Feher, supra, another analogous case, it was determined that good faith compliance with the local practice in Beaver County required paying the prothonotary’s filing fee, giving the sheriff written instructions for service, and prepaying the sheriff for service. Plaintiff failed to give instructions to the sheriff and failed to prepay the sheriff for service. In finding that the plaintiff did not meet his burden of good faith in attempting to have the writ served, we stated:

Thus, although appellant’s counsel did not actively attempt to thwart service of the writ, he also did not take any affirmative action to see that the writ was served and to put the defendant on notice that an action had been filed against him. In failing to prepay the sheriff or give the sheriff instructions for service of the original writ, appellants’ counsel failed to comply with local practice and thereby failed to demonstrate an affirmative good faith effort to provide notice to defendant.

Feher, 357 Pa.Super. at 56, 515 A.2d at 320. See also Farinacci, supra (where plaintiff neglected to deliver requisite instructions and payment to sheriff, and failed to provide an explanation for counsel’s inadvertence, Pennsylvania Supreme Court was constrained to hold that dismissing plaintiffs action was proper).

In light of the foregoing case law, Green’s attempt to categorize the failure to effectuate sendee as “a clerical error beyond her control” is inaccurate. Rather, judging from the cases finding noncompliance with Lamp, Green did not meet her burden of good faith when she filed the writ two days before the statute of limitations expired and neglected to advance the necessary costs for deputized service as required by local practice. Furthermore, appellees were not notified of the action until approximately seven months after the statute of limitations had expired.

In conclusion, we find no abuse of discretion on the part of the trial court in dismissing the instant action. The complaint and reissued writ, without benefit of the original writ tolling the statute of limitations, was not effective, thus, the action was not preserved.

Judgment affirmed.

      . Rule 401. Time for Service. Reissuance, Reinstatement and Substitution of Original Process. Copies for Service
      (a) Original process shall be served within the Commonwealth within thirty days after the issuance of the writ or the filing of the complaint.
      if: ><s H* # Sfc N*
      Pa.R.C.P. 401(a), 42 Pa.C.S.A.

      . Pennsylvania Rule of Civil Procedure 400(d) provides:
      If service is to be made by the sheriff in a county other than the county in which the action was commenced, the sheriff of the county where service may be made shall be deputized for that purpose by the sheriff of the county where the action was commenced.
      42 Pa.C.S.A. § 400(d).

      . We can find no Blair County local rule which specifically addresses the practice of deputized service, thus, we must look to affidavits in order to determine the county's "local practice.”

      . • It is undisputed that the applicable statute of limitations governing this action is two years. See 42 Pa.C.S.A. § 5524.

      . We note that where noncompliance with Lamp is alleged, an abuse of discretion standard of review applies. See Farinacci v. Beaver County Indus. Development, 510 Pa. 589, 511 A.2d 757 (1986).

      . A writ may be defined as follows:
      [A] written precept tunning in the name of the state, issuing from a court of justice and sealed with its seal, addressed to the officer of the law or directly to a person whose action the court desires to command, either as the commencement of the suit or other proceedings or as incidental to its progress, and requiring performance of a specific act, or giving authority and commission to have it done. Any writ is process, the two terms being interchangeable. Indeed, any means of acquiring jurisdiction is properly denominated 'process.'

        Standard Pennsylvania Practice, Vol. 2, § 10:1.
      Additionally,
      [t]he principal object or purpose of original process is to give to the party to whom it is addressed, or the party to be notified, notice of the proceedings against him, so that he may properly prepare himself to answer the claim or charge.

        Id. at § 10:3.

      . Rule 401. Time for Service. Reissuance, Reinstatement and Substitution of Original Process. Copies for Service
      (b)(5) If an action is commenced by writ of summons and a complaint is thereafter filed, the plaintiff instead of reissuing the writ may treat the complaint as alternative original process and as the equivalent for all purposes of a reissued writ, reissued as of the date of the filing of the complaint. Thereafter the writ may be reissued, or the complaint may be reinstated as the equivalent of a reissuance of the writ, and the plaintiff may use either the reissued writ or the reinstated complaint as alternative original process.
      Pa.R.C.P. 401(b)(5), 42 Pa.C.S.A.


text:
    635 A.2d 1074
    Luther C. GREEN and Cecelia D. Green, v. Carroll Bradford SNEERINGER, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 5, 1993.
    Filed Dec. 23, 1993.
    Application for Reargument or Reconsideration Denied Feb. 25, 1994.

      Charles H. Field, Gettysburg, for appellant.
    Walton V. Davis, Gettysburg, for appellees.
    Before CIRILLO, HUDOCK and CERCONE, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Adams County denying appellant Carroll Bradford Sneeringer (Father) visitation with his son. We affirm.

Father was convicted of first-degree murder. The victim, Father’s girlfriend, was the mother of their two year old child. Following his conviction, Father was sentenced to life imprisonment.

The child is currently in the custody of Luther and Cecilia Green, the child’s maternal aunt and uncle. Father, under the circumstances, did not oppose custody. He did, however, seek visitation rights. The maternal aunt and uncle opposed Father’s petition for visitation. Following a hearing, the trial court denied Father’s request.

In its ruling, the court acknowledged that it had accepted Father’s offer of proof with respect to the testimony of Bernard Yannetti, Warden of Adams County Prison. The court accepted the following: (1) that Father was entitled to one visit per week; and (2) that if the Warden agreed, these visits could be contact visits. The court determined, however, that it was not in the child’s best interests to allow visitation.

In his appeal, Father presents three issues:

Whether the hearing afforded Father sufficient due process when deciding his visitation rights?
Whether a court can deny a parent visitation solely because of a homicide conviction?
Whether the hearing judge applied the correct legal standard to decide a parent’s visitation rights?

“The law protects the natural parent’s relationship with his or her child and will not interfere unnecessarily with that relationship[.]” Jackson v. Garland, 424 Pa.Super. 378, 622 A.2d 969 (1993). The General Assembly has declared:

[I]t is the public policy of this Commonwealth, when in the best interest of the child, to assure reasonable and continuing contact of the child with both parents after a separation or dissolution of the marriage----

23 Pa.C.S. § 5301. See Commonwealth ex rel. Lotz v. Lotz, 188 Pa.Super. 241, 246, 146 A.2d 362, 364 (1958) (it is against public policy to destroy the relationship of parent to child).

In his Pa.R.A.P. 1925(a) opinion the Honorable Oscar F. Spicer concluded that he did not find “mandatory trips to the prison to be in the child’s best interest.” Father argues that the trial court did not utilize the correct standard. Father contends that the correct standard is whether the parent poses a grave threat to the child, not whether visitation is in the best interest of the child.

This court has previously stated:

The best interest standard has long been the the guiding principle in determining custody cases. [ ] In dealing with visitation rights, however, the stricter “grave threat” standard has long prevailed.
Only when the evidence clearly shows that a [parent] is unfit to associate with [his or her] children should [he or she] be denied the right to see them.

In re Damon B., 314 Pa.Super. 391, 394, 460 A.2d 1196, 1198 (1983) (quoting Commonwealth ex rel. Turner v. Strange, 179 Pa.Super. 83, 115 A.2d 885 (1955) (citations omitted)).

Here, it is not entirely clear what standard the trial court utilized; it is clear, however, that the court was presented with the “grave threat” standard and with case law and arguments to that effect. It is also clear that the trial judge concluded his opinion with a statement that visitation would be detrimental to the child’s best interests.

In Damon B., this court was presented with a similar argument. There, the the trial court had reduced the mother’s visitation. On appeal the mother claimed that a parent’s right to visitation can be limited or denied only if the parent possesses severe mental or moral deficiencies that constitute a grave threat to the welfare of the child. Damon B., 314 Pa.Super. at 394, 460 A.2d at 1198. Mother contended that the trial court’s use of the “best interests” standard was incorrect and that the trial court’s specific finding of a lack of evidence substantiating moral or mental deficiencies precluded limitation or reduction of her visitation. Defining the standard, this court stated:

[W]e agree that the best interest standard is inappropriate. This error, however, does not necessarily require that we reverse the order reducing visitation, since we may affirm an order for reasons other than those given by the trial court.

Damon B., 314 Pa.Super. at 395, 460 A.2d at 1198 (citing Weber v. Lynch, 237 Pa.Super. 48, 346 A.2d 363 (1975) and In re King’s Estate, 183 Pa.Super. 190, 130 A.2d 245 (1957)). The court pointed out that the case before it was one of those “rare instances” in which it has “approved restricting or temporarily-suspending visitation even though there has been no showing of such severe mental or moral deficiencies in the parent as would constitute a grave threat to the child’s welfare.” Damon B., 314 Pa.Super. at 395, 460 A.2d at 1198.

Although not the precise situation here, we find Damon B. analogous to the extent that the court’s error in incorporating the “best interest” standard, of itself, does not necessarily require that we reverse or remand. We take this opportunity to emphasize that, although the best' interest of the child is always our overriding concern, the appropriate standard to apply when presented with the issue of parental visitation is whether the parent suffers from mental or moral deficiencies which pose a grave threat to the child. Id.; Commonwealth ex rel. Peterson v. Hayes, 252 Pa.Super. 487, 381 A.2d 1311 (1977).

In this case, however, as we have noted above, the court was presented with the correct standard and with arguments to that effect. The court’s brief opinion in this case makes a general reference to the child’s best interests in the last sentence: “Under the circumstances, the undersigned did not find mandatory trips to the prison to be in the child’s best interest.” Although it appears that the court utilized both standards and found it unnecessary to hear evidence of the father’s relationship with his child, we are unable to conclude that either of these deviations requires reversal or remand in this case. See Hughes v. Hughes, 316 Pa.Super. 505, 463 A.2d 478 (1983) (court utilized both standards, finding that father’s act of shooting the child’s mother while the child was in her arms and his constant abuse toward the mother confirmed the father’s moral deficiency and concluding that the trial court did not err in finding father unfit for visitation and that visitation would not be in the child’s best interest); see also Commonwealth ex rel. Sorace v. Sorace, 236 Pa.Super. 42, 344 A.2d 553 (1975) (father may not be denied visitation rights with children unless such visits will be detrimental to the best interests of the children; fact that father was living with woman in extramarital relationship did not amount to severe moral deficiency constituting a grave threat to the welfare of the children).

Furthermore, unlike the trial court in Damon B., which specifically found a lack of evidence substantiating the parent’s mental or moral deficiencies, the trial court here was presented with the stipulation of a first-degree murder conviction. Though the court did not expressly state as much in its opinion, we find, for the reasons that follow, that this was sufficient evidence substantiating the father’s moral deficiency.

Where a father engages in the premeditated killing of the mother of his infant child, a fortiori he possesses a moral deficiency constituting a grave threat to the child. Although the circumstances of the killing and the father’s conviction of first-degree murder are not a part of this record, we are unable to escape the obvious suggestion that the father’s actions indicate a complete disregard for the child’s welfare. Barring criminal acts committed upon the child, we can think of no action in which a parent could engage posing a graver threat to a child’s welfare than killing the other parent. In one grim swoop, the father has deprived his child of both parents’ guidance and support. We find, therefore, that father’s first-degree murder conviction for the killing of a child’s mother is, in itself, evidence of severe mental or moral deficiencies in the parent as would constitute a grave threat to the child’s welfare. Damon B., supra. The court’s refusal to hear evidence of the preexisting relationship between father and son is, therefore, of no consequence. See Sorace, supra (parent should seldom be denied right to visit with his child, but when severe mental or moral deficiency constitutes threat to child’s welfare, visitation rights may be denied to parent who manifests such condition); Scarlett v. Scarlett, 257 Pa.Super. 468, 390 A.2d 1331 (1978) (visitation may be limited or denied in a custody case only where a parent has been shown to suffer from severe mental or moral deficiencies that constitute a grave threat to the child); cf. In re Constance W., 351 Pa.Super. 393, 506 A.2d 405 (1986) (trial court’s order forbidding a father to see his child for a year was held to be unreasonable where the record failed to show that the father’s “impulsive and somewhat irrational behavior” had any harmful effect upon the child).

Order affirmed.

      . Visitation, as distinguished from partial custody, is "the right to visit a child, but does not include the right to remove the child from the custodial person’s control.” See Pa.RX.P. 1915.1.

      . This court, in an order dated April 3, 1993, denied Father’s petition for relief pending appeal.

      . We note that the Hughes court made reference to the best interests of child when passing upon the question of whether the father’s visitation would have posed a grave threat to the child. After applying the grave threat standard, the Hughes court concluded: “The court below did not err in finding appellant-father to be unfit for visitations with the child and that such visitations would be contrary to the child’s best interests.” Hughes, 316 Pa.Super. at 508, 463 A.2d at 479. Similarly, in Sorace, supra, the court made reference to both standards, using the best interests of the child as the general standard, and utilizing the grave threat standard as the test for determining when a limitation or restriction in parental visitation is required. It approaches an exercise in semantics, however, to argue that a statement to the effect that our overriding concern is the best interests of the child precludes a proper consideration of the grave threat standard. The two standards, though distinct, are related. In any event, we believe that the Damon B. court has clarified this matter.


author: TAMILIA, Judge: WIEAND, Judge,

text:
    635 A.2d 1077
    Karen Lynne BAINES, Appellant, v. Bobby Joe WILLIAMS.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1993.
    Filed Dec. 20, 1993.

      Joseph S. Britton, Langhorne, for appellant.
    Before WIEAND, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

This is an appeal from the Order of the Court of Common Pleas of Bucks County of March 4, 1993 remanding the custody matter of appellant, Karen Lynne Baines, to the Circuit Court of Morgan County, Alabama, for further proceedings. The underlying custody complaint filed by appellant sought primary physical custody of the parties’ three minor children, Bobby Williams, 6, Billy Williams, 5, and Amie Baines, 3. Hearing in the matter was held on February 23, 1993 before the Honorable John J. Rufe. Appellee, Bobby Joe Williams, was not present at the hearing. Thereafter, the trial court declined to exercise jurisdiction and entered the above Order.

A recital of the factual and procedural history of this case appearing of record is necessary to resolution of the issues. Appellant is a native of Pennsylvania and lived in Bucks County continuously from the time of her birth in 1956 until June, 1984. The parties met in Texas in 1984, and in the summer of 1986 moved to Birmingham, Alabama. Bobby Williams was born in Texas, and Billy Williams and Amie Baines were born in Alabama. From the time of the birth of the children, appellant was their primary caretaker. During the last two years of the parties’ relationship, appellee was unemployed and had little involvement in the care of the children. On August 30, 1992, appellant informed appellee that she wanted to separate and that she was returning to Pennsylvania with the children. Appellee then grabbed appellant by the hair and, in front of the children, put her head through a wall. Appellee put the children in his truck and when appellant attempted to talk him out of his action, he grabbed her by her ponytail and dragged her around the driveway. As he drove away, appellee told appellant she would never see the children again. Subsequently, appellant left Alabama, returning to Pennsylvania on September 6,1992. Prior to leaving Alabama, appellant filed a complaint in divorce on September 2, 1992, alleging a common law marriage existed between the parties.

Between September 6, 1992 and November 11, 1992, the parties spoke to each other one time on the telephone, but appellee would not allow appellant to speak to her children. On November 11, 1992, appellant received a telephone call from appellee’s sister, Sharon Chambers. Ms. Chambers informed appellant that the children had been with her most of the time since August 30, 1992, and that appellee had recently deposited them with her, informing her that he would return in two or three weeks. Ms. Chambers did not know appellee’s whereabouts or the date of his return, and she asked appellant if she would come to Alabama to retrieve the children. Appellant immediately drove to Alabama with her parents and picked up the children. At that time, the children were wearing dirty clothes with holes in them, and Billy was not wearing any underwear. All of the children had head lice, and they had no other clothing. Appellant also discovered that the oldest child, Bobby, was not attending school on a regular basis.

Appellant filed a complaint for custody in Bucks County on December 9, 1992. On January 19, 1993, appellee filed a motion to dismiss for lack of jurisdiction. In his motion to dismiss, appellee alleged appellant left Alabama in direct violation of a court Order entered by the Honorable C. Bennett McRae of the Circuit Court of Morgan County, Alabama, on September 8, 1992, a copy of which appellee appended to his motion. The Order, which apparently resulted from a motion by appellee for immediate temporary custody, prohibited either party from removing the children from the state of Alabama without the express written authority of the court. Appellee’s petition to dismiss also had appended to it a summons by the sheriff indicating that appellant had been personally served with a copy of the court Order on September 11, 1992. On February 22, 1993, appellee’s Alabama counsel faxed the Court of Common Pleas a copy of another purported Order from the Circuit Court of Morgan County. This Order, entered February 1, 1993, set a contempt hearing date for February 22, 1993 in Alabama for appellant, and awarded temporary custody of the children to appellee.

On the basis of the foregoing, the Court of Common Pleas stated:

The Uniform Child Custody Jurisdiction Act specifically prohibits this Court from assuming jurisdiction under these circumstances. The Act states:
A court of this Commonwealth shall not exercise its jurisdiction under this subchapter if, at the time of filing the petition, a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this subchapter, unless the proceeding is stayed by the court of the other state because this Commonwealth is a more appropriate forum or for other reasons. 23 Pa.C.S.A. Section 5447 [sic].

(Slip Op., Rufe, J., 3/4/93, p. 3.)

We agree with the trial court that this case is governed by the Uniform Child Custody Jurisdiction Act (“UCCJA”), which has been codified in Pennsylvania at 23 Pa.C.S. §§ 5341 et seq. When reviewing a trial court’s decision not to exercise jurisdiction under the terms of the UCCJA, we will not reverse the trial court’s decision unless we find an abuse of discretion. Merman v. Merman, 412 Pa.Super. 247, 603 A.2d 201 (1992). Upon our review of the abbreviated record, we find that the trial court did not possess sufficient evidence to decline jurisdiction, and we remand for further proceedings to determine where proper jurisdiction exists.

As stated in the UCCJA, the general purposes of the Act are to:

(1) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being.
(2) Promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child.
(3) Assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training and personal relationships is most readily available, and that courts of this Commonwealth decline the exercise of jurisdiction when the child and his family have a closer connection with another state.
(4) Discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child.
(5) Deter abductions and other unilateral removals of children undertaken to obtain custody awards.
(6) Avoid relitigation of custody decisions of other states in this Commonwealth insofar as feasible.
(7) Facilitate the enforcement of custody decrees of other states.
(8) Promote and expand the exchange of information and other forms of mutual assistance between the courts of this Commonwealth and those of other states concerned with the same child.

23 Pa.C.S. § 5342(a). The UCCJA reflects the accepted view in all child custody determinations that the paramount concern is the best interests of the child. Ashford v. Ashford, 395 Pa.Super. 125, 576 A.2d 1076 (1990).

Jurisdiction of custody matters is conferred upon competent courts of the Commonwealth under the UCCJA if:

(1) this Commonwealth:
(i) is the home state of the child at the time of commencement of the proceeding; or
(ii) had been the home state of the child within six months before commencement of the proceeding and the child is absent from this Commonwealth because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this Commonwealth;
(2) it is in the best interest of the child that a court of this Commonwealth assume jurisdiction because:
(i) the child and his parents, or the child and at least one contestant, have a significant connection with this Commonwealth; and
(ii) there is available in this Commonwealth substantial evidence concerning the present or future care, protection, training and personal relationships of the child;
(3) the child is physically present in this Commonwealth, and:
(i) the child has been abandoned; or
(ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent;
(4) (i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (1), (2) or (3), or another state has declined to exercise jurisdiction on the ground that this Commonwealth is the more appropriate forum to determine the custody of the child; and
(ii) it is in the best interest of the child that the court assume jurisdiction; or
(5) the child welfare agencies of the counties wherein the contestants for the child live, have made an investigation of the home of the person to whom custody is awarded and have found it to be satisfactory for the welfare of the child.

23 Pa.C.S. § 5344(a). Under section 5344, then, jurisdiction under the UCCJA may be based on home state jurisdiction, “significant contacts” or parens patriae jurisdiction. Simpkins v. Disney, 416 Pa.Super. 243, 610 A.2d 1062 (1992).

Home state, for purposes of the UCCJA, is defined as “the state in which the child immediately preceding the time involved lived with his parents, a parent or a person acting as a parent, or in an institution, for at least six (6) consecutive months ...” 23 Pa.C.S.A. § 5343. The UCCJA definition of home state is used solely to determine whether a specific state can assert jurisdiction under the theory that it is the home state.

Merman, supra 412 Pa.Super. at 252, 603 A.2d at 203-204.

The determination of a child’s home state, however, does not automatically confer jurisdiction upon that state. Boudwin v. Boudwin, 419 Pa.Super. 570, 615 A.2d 786 (1992). In Tettis v. Boyum, 317 Pa.Super. 8, 463 A.2d 1056 (1983), this Court affirmed the decision of the trial court in finding the children’s “substantial contacts” with mother’s home in Pennsylvania were more compelling in determining jurisdiction than a home state inquiry even though the children had lived for several years in Texas with father immediately prior to the proceedings. Further, jurisdiction only exists if it is in the child’s best interest, not merely the interest of convenience of the parties. Aldridge v. Aldridge, 326 Pa.Super. 49, 473 A.2d 602 (1984). The interest of the child is served by the forum with optimum access to relevant evidence about the child and family. Id.

In this case, were our analysis limited solely to a determination of the children’s home state, we would be constrained to find jurisdiction exists in Alabama. Under either a “significant contacts” or parens patriae analysis, however, the evidence, though somewhat meager, indicates Pennsylvania properly may- be conferred with jurisdiction.

Appellant testified at the February 23, 1993 hearing that she was born and reared in Bucks County and that she has extensive numbers of family members living there, including her parents, two brothers, and various aunts, uncles and cousins. She further testified that she and her children are currently residing with her divorced brother and his two children, ages 7 and 11, in a six-bedroom, two-bathroom house in Levittown, Bucks County. As part of her living arrangement with her brother, appellant takes care of the house and the children while her brother works. Appellant’s son Bobby attends school in Bucks County and is doing well. Appellant further testified that all the children are thriving in Bucks County, are clean, well-fed, properly clothed, have many young relatives and neighborhood friends with whom to play, and have no desire to return to Alabama. Appellant also testified to her intention to remain in Bucks County.

By contrast, appellant testified to the conditions of the children’s environment in Alabama, which was the antithesis of that found in Pennsylvania. Although appellee did not testify at the hearing, and appellant presented no testimony other than her own, such testimony nevertheless constitutes the record before us and, with regard to the children’s bést interests is disconcerting, to say the least. Interestingly, at the conclusion of the hearing, the trial court stated: “I will review the Uniform Child Custody Jurisdiction Act and in accordance with that act correspond or otherwise communicate with Judge McRae in Alabama before I make a decision.” (N.T., 2/23/92, p. 44.) Our examination of the record, however, discloses no such communication, and the trial court does not indicate in its Opinion and Order that it had any contact with the court in Alabama. This, despite the fact that appellant had filed a complaint in divorce in Alabama, and that appellee’s motion to dismiss indicated that he had filed a motion for immediate temporary custody in Alabama, all of which the trial court was aware.

The UCCJA provides for a situation such as this as follows:

(c) Stay; communication with other court.- — If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction, it shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with section 5360 (relating to hearings and studies in another state; orders to appear) through 5363 (relating to request for court records of another state). If a court of this Commonwealth has made a custody decree before being informed of a pending proceeding in a court of another state, it shall immediately inform that court of the fact. If the court is informed that a proceeding was commenced in another state after it assumed jurisdiction, it shall likewise inform the other court to the end that the issues may be litigated in the more appropriate forum.

23 Pa.C.S. § 5347(c).

The UCCJA also specifies the court’s power where a custody decree of another state exists:

(b) Restriction on modification of foreign decree. — Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody. If the petitioner has violated any other provision of a custody decree of another state, the court may decline to exercise its jurisdiction unless the petitioner can show that conditions in the custodial household are physically or emotionally harmful to the child, the burden of proof being on the petitioner requesting the court to take jurisdiction.

23 Pa.C.S. § 5349(b) (emphasis added).

We conclude from the limited record before us that the violent manner in which appellee initially obtained custody of the children and secreted them from appellant, his subsequent abandonment of them for several weeks at a time, and the children’s resultant physical and emotional condition, requiring appellant to return to Alabama as soon as she became aware of their plight, established appellant’s burden of proof for the Court of Common Pleas of Bucks County to exercise jurisdiction in this ease. However, we also recognize the due process rights of appellee, and while we do not elevate them over the best interest of the children, we find both to be served better by amplification in further proceedings before the trial court. This is especially so given the contradiction between appellant’s allegation that she was never served with a summons in connection with appellee’s motion for immediate temporary custody, and was unaware of any custody proceedings in Alabama beyond her divorce complaint, and the copy of the summons indicating a deputy sheriff in Alabama personally served her with appellee’s motion on September 11, 1992.

We therefore direct the trial court, on remand, if it has not already done so, to communicate with the Circuit Court in Alabama, and set forth in the record the content and results of that communication. If necessary, the trial court may adduce further testimony from witnesses in Alabama, and may request that the Circuit Court hold a similar hearing or forward transcripts of any hearing held or social study prepared. 23 Pa.C.S. §§ 5359, 5360.

We fail to see how surrendering jurisdiction to Alabama without a significant inquiry into the matters appearing of record will be in the best interest of the children or advance the cause of justice.

Order reversed and remanded for proceedings consistent with this Opinion.

Jurisdiction relinquished.

WIEAND, J., dissents.

WIEAND, Judge,

dissenting.

I respectfully dissent. The trial court’s order transferring this custody proceeding to Alabama, where the parties had resided with their children prior to separation and where custody proceedings were pending, was correct and in accordance with the mandate of the Uniform Child Custody Jurisdiction Act, 23 Pa.C.S. §§ 5341 et seq. Therefore, I would affirm the order of the trial court.

      . Appellant’s other child, Justin Rylak, is not a subject of this matter.

      . The UCCJA has been adopted in Alabama. Alabama Code 1975, §§ 30-3-20 to 30-3-44. Nevertheless, the UCCJA is not a “reciprocal” law and is in full operation in each state regardless of its enactment in other states. Hattoum v. Hattoum, 295 Pa.Super. 169, 441 A.2d 403 (1982).


author: POPOVICH, Judge:

text:
    635 A.2d 1082
    Marion TORCHIA, Individually and Guardian on Behalf of Robin Ann Torchia, Debra Jean Torchia and Mark Torchia, Appellant, v. KEYSTONE FOODS CORPORATION, T/A M & M Restaurant Supply Company, Bankers Life Company and Phoenix Mutual Life Insurance Co., Appellee, (Three Cases).
    Superior Court of Pennsylvania.
    Argued Oct. 6, 1993.
    Filed Dec. 23, 1993.

      David S.T. Jenkins, Media, for appellant.
    Howard A. Rosenthal, Philadelphia, for Keystone Foods, appellee.
    Robert S. Davis, Philadelphia, for Bankers Life, appellee.
    Robert A. Carpenter, Jr., Media, for Phoenix Mut., appellee.
    Before POPOVICH, JOHNSON and HOFFMAN, JJ.
   POPOVICH, Judge:

This appeal is from the summary judgment entered by the Court of Common Pleas of Delaware County in favor of appellees. Herein, we are presented with appellants’ claim to life insurance proceeds. The decedent had agreed to maintain appellants as the beneficiaries of his group life insurance policies. However, unbeknownst to appellants, the decedent changed his beneficiary designation. Appellants now seek to recover the life insurance proceeds from the insurers and the decedent’s employer, having already obtained a judgment for the full amount of the policy’s coverage from the named beneficiary. We affirm the entry of summary judgment against appellants.

Herein, appellant presents the following questions:

Since the children of Joseph Torchia and Marion Torchia are beneficiaries of the contracts which are the Postnuptial Agreement and the group life insurance policies, are the children not third party creditor beneficiaries to the Post-nuptial Agreement since there was consideration given in the Postnuptial Agreement and is the Postnuptial Agreement and the group life insurance policies enforceable against the employer and insurers?
Since this is a contract dispute, and the Postnuptial Agreement and the group life insurance policy bind the insurer and employer, to which the children of Joseph Torchia and Marion Torchia are the third party beneficiaries of the group life insurance policies is not the applicable limitation of action on a contractual theory six years imposed by 42 Pa.Cons.Stat. § 5527(2) or 42 Pa.Cons.Stat. § 5527(6)?
Are not the Defendant-Appellees barred from denying liability under the doctrine of collateral estoppel since the Postnuptial Agreement was found to be contractually binding on the group life insurance policies in the case of Torchia v. Torchia, 71 Del.Co. 257 (C.C.P.Del.Co.1984) and Torchia v. Torchia, [346 Pa.Super. 229] 499 A.2d 581 (Pa.Super.1985)?
In the presence of a latent ambiguity in a contract, which in the case at bar is a Postnuptial Agreement, is it not the court’s duty to look beyond the contract to the exigent circumstances surrounding the formation of the contract to ascertain the intent of the parties to the contract?

Appellant’s Brief, p. 2.

Recently, in Grant v. GAF Corp., 415 Pa.Super. 137, 148-49, 608 A.2d 1047, 1053 (1992), we reviewed the standards to be applied when reviewing an entry of summary judgment. Therein, we stated:

When reviewing the grant of summary judgment, this court will reverse only if there has been an error of law or an abuse of discretion. Jones v. Keystone Ins. Co., 364 Pa.Super. 318, 528 A.2d 177 (1987), alloc. denied, 518 Pa. 613, 540 A.2d 535 (1988). Where the pleadings, depositions, answers to interrogatories and admissions filed show no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. Hedlund Manuf. Co. v. Wiser, Stapler & Spivak, 517 Pa. 522, 539 A.2d 357 (1988).

With the afore-stated standard of review in mind, we will first summarize the applicable facts: On April 10, 1978, Joseph Torchia began his employment with M & M Restaurant Supply Company, an unincorporated division of appellee Keystone Foods Corporation. At the time of his employment, Joseph Torchia was issued a certificate of group life insurance by appellee Phoenix Mutual Life Insurance Company, at Keystone’s direction, for the face amount of $34,000.00. Initially, Joseph Torchia named his first wife, appellant Marion Torchia, as the beneficiary of the policy.

On February 9, 1979, as a part of their divorce proceedings, Marion Torchia and Joseph Torchia entered into a property, support and custody agreement whereby Joseph “agree[d] that he will maintain his children as beneficiaries of all insurance policies that he presently owns.” Shortly thereafter, the parties were divorced.

Joseph Torchia then remarried, and, on November 30, 1979, he changed the beneficiary on his Phoenix life insurance policy to his second wife Kathleen M. Torchia. Several years later, on September 12, 1982, Joseph’s employer provided him with another group life insurance policy issued by Banker’s Life Company which had a face value of $10,000.00. Joseph again designated his second wife, Kathleen Torchia, as beneficiary.

On November 5, 1982, Joseph Torchia died. Upon Joseph’s death, Kathleen Torchia retained the services of Attorney Richard C. Tinucci. On November 30, 1982, Attorney Tinucci wrote Joseph’s employer and informed Keystone Foods that Joseph had entered into a separation agreement which required him to maintain his children as beneficiaries on all life insurance policies which he owned as of February 9, 1979. Attorney Tinucci then requested information concerning any such insurance policies of which Keystone or M & M Restaurant Supply were aware. Attorney Tinucci also sent a copy of his correspondence to Attorney William J. Kelly who represented Joseph’s children, appellants Robin, Debra and Mark Torchia. By letter dated December 15,1982, Attorney Tinucci sent a copy of the separation agreement to Bernard Eizen, Esquire, who was counsel for Keystone Foods and its subdivision M & M Restaurant Supply. Therein, he again inquired about any life insurance policies which Joseph may have owned as of February 9,1979. Again, a copy of the letter was sent to William Kelly, Esquire.

On December 22, 1982, Attorney Eizen advised Attorney Tinucci by letter with a copy sent to Attorney Kelly, that Joseph owned no life insurance through their company, but that “[t]he company maintains a plan of group term life insurance, pursuant to which Mr. Torchia held a certificate of group insurance.” He also advised that Kathleen M. Torchia was the named beneficiary, and, absent any agreement between Kathleen and appellants to the contrary, Keystone would direct its insurer to pay the benefits to Kathleen, in accordance with the group life insurance plan.

In response to Attorney Eizen’s letter, on December 28, 1982, Attorney Tinucci requested that the insurance proceeds be paid directly to his client Kathleen Torchia. The following day, Attorney Eizen informed Attorneys Tinucci and Kelly that the proceeds would be distributed according to the group life plan.

By letter dated January 3, 1983, William Kelly, Esquire, objected to Keystone’s planned distribution of the proceeds on the grounds that Joseph had no right to change his named beneficiaries. He requested that the insurance companies refrain from issuing the proceeds until the claim was resolved with Kathleen Torchia. However, on January 3, 1983, Keystone Foods forwarded to Kathleen Torchia insurance proceeds in the amount of $44,378.34, and, on January 4, 1983, Kathleen negotiated the checks for the insurance benefits.

We note that neither Joseph’s employer nor the insurance companies were informed of the existence of the property settlement agreement until Kathleen’s counsel sent a copy of the agreement to Keystone’s legal counsel following Joseph’s death. We further note that the children’s legal counsel failed to object to the disbursement of the proceeds until January 3, 1993, the date they were actually disbursed and nearly two months after the death of Joseph.

Subsequently, Marion Torchia, as parent and guardian of her minor children, commenced an equity action against Kathleen Torchia to recover the sum of $44,000.00, plus interest. At trial, Marion Torchia and her children prevailed and were awarded $44,000.00, plus interest. On appeal, we affirmed stating, “a contract not to change the beneficiary of a policy of life insurance, entered into by the insured and his designated beneficiary for valuable consideration, is binding as between the insured, or his volunteer, and the contractually determined beneficiary and will be enforced in equity.” Torchia v. Torchia, 346 Pa.Super. 229, 233-35, 499 A.2d 581, 583 (1985). See also, Hundertmark v. Hundertmark, 372 Pa. 138, 93 A.2d 856 (1952); Visnik v. Mance, 326 Pa. 399, 402, 191 A. 127, 129 (1937). Therein, we reasoned that Joseph’s children had an equitable interest superior to that of Kathleen in the proceeds of the policies. The children’s interest had been vested by their father’s agreement, and, therefore, it would be unjust to permit Kathleen Torchia to retain the proceeds in preference to the children, even though she was a passive and innocent party. Torchia, 499 A.2d at 584.

After the prior litigation was complete, Marion Torchia and her children were able to recover approximately $20,000.00 from Kathleen Torchia. Appellants filed the present civil suit on March 7, 1988, over five years after Joseph’s death and the distribution of the insurance funds. Herein, they seek to collect the remaining $24,000.00, plus interest from Joseph’s employer and its insurance companies. Appellants contend that Keystone, Phoenix Mutual Life Insurance and Banker’s Life breached the terms of the group life insurance contracts. Appellants further contend that they are third party beneficiaries of the group life insurance policy and, thus, entitled to enforce the terms of the life insurance policies, as modified by the Torchia’s property settlement agreement. The lower court, however, agreed with appellees’ characterization of this suit as a tort, rather than contract, action. It granted summary judgment on the basis that the suit was not brought with the two-year statute of limitations applicable to tort actions. 42 Pa.C.S.A. § 5524. This appeal followed.

We turn now to the issue of whether appellants are third party beneficiaries to the group life insurance policies such that they are permitted to enforce those insurance contracts. Our resolution of this issue will likewise resolve the issue of whether the lower court applied the correct statute of limitations, i.e., the six-year written contract or two-year tort limitation period.

In Scarpitti v. Weborg, 530 Pa. 366, 372-73, 609 A.2d 147, 150-151 (1992), our Supreme Court defined a third party beneficiary as follows:

Accordingly, we hold that a party becomes a third party beneficiary only where both parties to the contract express an intention to benefit the third party in the contract itself, Spires[ v. Hanover Fire Insurance Co.], supra [364 Pa. 52, 70 A.2d 828 (1950) (plurality opinion) ], unless, the circumstances are so compelling that recognition of the beneficiary’s right is appropriate to effectuate the intention of the parties, and the performance satisfies an obligation of the promisee to pay money to the beneficiary or the circumstances indicate that the promisee intends to give the beneficiary the benefit to the promised performance. Guy[ v. Liederbach], supra [501 Pa. 47, 459 A.2d 744 (1983)].

See also, Manning v. Aetna Casualty & Surety Co., 353 Pa.Super. 139, 141-44, 509 A.2d 374, 375-376 (1986).

Clearly, appellants are not third party beneficiaries of the group life insurance contract. Neither Keystone Foods nor its insurers intended the contract to benefit Joseph’s children. Rather, the parties to the contract, i.e., Joseph, Keystone and the insurers, expressly intended Kathleen Torchia to be the third party beneficiary of the group life insurance policy. In fact, Keystone and the insurers were never notified of the Torchia’s property settlement agreement until well after Joseph’s death, and appellants did not object to the payment of the funds to Kathleen Torchia until the same day as the funds were disbursed.

Appellants, more precisely Joseph’s children, correctly contend that they were intended third party beneficiaries of their parent’s property settlement agreement Scarpitti, supra. Further, they correctly note that we have previously determined that they were entitled to the proceeds from the insurance policies. See, Torchia, supra. However, in their prior suit, we did not determine that they were third party beneficiaries to the insurance contracts. In Torchia, supra, their suit was in equity, and we determined that Kathleen Torchia was unjustly enriched by her receipt of the insurance proceeds, since appellants were third party beneficiaries to their parent’s property settlement agreement.

Instantly, we conclude there is no contractual relationship or obligation between appellees and appellants. Consequently, appellants’ cause of action cannot be based in assumpsit, but rather must sound in trespass. Appellants complain that the lower court should have applied the limitations period for written contracts as encompassed by the catch-all, six-year statute of limitations set forth in 42 Pa.C.S.A. § 5527. However, it is clear that appellants’ cause of action is actually for either tortious interference with contract rights or negligence related to the payment of funds to Kathleen Torchia. Thus, the two-year statute of limitations as set forth in 42 Pa.C.S.A. § 5524(3) applies. See, Bender v. McIlhatten, 360 Pa.Super. 168, 520 A.2d 37 (1987), appeal denied, 515 Pa. 571, 527 A.2d 533 (42 Pa.C.S.A. § 5524(3) governs tortious interference with contract rights); Mazzanti v. Merck and Co., 770 F.2d 34, 35 (3rd Cir.1985). Since appellants failed to file this suit until more than five years after the insurers distributed the insurance proceeds to Kathleen Torchia, we agree with the lower court that the present action is barred by the statute of limitations.

Therefore, we find that the lower court properly entered summary judgment in this action since there is no genuine issue of material fact, and appellees are entitled to judgment as a matter of law. Accordingly, we affirm.

Summary judgment affirmed.

      . We note that William Kelly, Esquire, no longer represents appellants.

      . Appellees argued that appellants had no contractual relationship with them. Therefore, the only possible grounds for their claims is that appellees in some way tortiously interfered with execution of the post-nuptial property settlement agreement or that appellees were negligent in paying the named beneficiary on the policy.

      . We will not address appellants' remaining issues, i.e., appellees are collaterally estopped by our prior decision in Torchia, supra, from denying liability under the terms of the insurance contract and that the Torchia’s property settlement agreement contains a latent ambiguity which should be resolved in the children’s favor. Presentment of those issues presume a timely cause of action has been filed. However, appellants have not filed their suit in a timely manner, and, consequently, those issues are not properly before us.