author: PER CURIAM: CIRILLO, President Judge, BROSKY, Judge,

text:
    609 A.2d 821
    Suzanne M. WONDERS v. Steven L. WONDERS, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1990.
    Filed Oct. 23, 1991.
    John C. Howett, Jr., Harrisburg, for appellant.
    Carol J. Lindsay, Carlisle, for appellee.
    Before CIRILLO, President Judge, and JOHNSON and BROSKY, JJ.
   PER CURIAM:

Affirmed.

CIRILLO, President Judge,

concurring and dissenting:

I join in that portion of the Honorable Justin Johnson’s decision which concludes that the trial court did not abuse its discretion when it included Steven L. Wonders’ averaged bonuses in calculating his income available for support. Like my colleague, the Honorable John Brosky, I find that the Melzer issue is properly before this court. Judge Brosky and I, however, differ on the disposition of this issue. It is my opinion that the formula set forth in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), remains viable and is applicable to any support case which falls within the limits of the recently enacted Uniform Support Guidelines. See Pa.R.C.P. 1910.1 et seq.

Husband argues that the trial court abused its discretion when, in fixing the instant support award, it did not apply the Melzer formula in addition to the recently enacted Uniform Support Guidelines. See Pa.R.C.P. 1910.1 et seq. It is readily apparent that the record does not contain a Melzer calculation. Nonetheless, wife argues that the Uniform Support Guidelines have superseded Melzer. Specifically, wife, relying upon Pennsylvania Rule of Civil Procedure 1910.16-3, claims that if the parents’ income is $8,000.00 a month or less the trial court need not utilize the Melzer formula when arriving at an appropriate support award; rather, wife claims, the award should be based solely upon the Uniform Support Guidelines. Therefore, wife maintains that the trial court did not abuse its discretion when it fashioned the instant support award without performing a Melzer calculation.

Recently, this court has, on three occasions, remanded a support matter for a recalculation of the support award when the trial court has failed to perform an on-the-record Melzer calculation. See Coffey v. Coffey, 394 Pa.Super. 194, 575 A.2d 587 (1990); Racciato v. Racciato, 393 Pa.Super. 307, 574 A.2d 625 (1990); Lesko v. Lesko, 392 Pa.Super. 240, 572 A.2d 780 (1990). In Coffey, Racciato and Lesko, this court ordered the trial court to recalculate the support award by applying the Uniform Support Guidelines in harmony with the Melzer formula. Coffey, 394 Pa.Super. at 203, 575 A.2d at 591; Racciato, 393 Pa.Super. at 311, 574 A.2d at 627; Lesko, 392 Pa.Super. at 248, 572 A.2d at 785. Consequently, this court has implicitly stated that the Uniform Support Guidelines do not supersede Melzer, but are to be applied in conjunction with Melzer in arriving at an appropriate support award.

Even more recently, in Marshall v. Marshall, 404 Pa.Super. 628, 591 A.2d 1060 (1991), this court was presented with the question of “whether Melzer must be applied separately or in conjunction with the guidelines or has been repealed by the statutory provisions, 23 P[a.C.]S. § 4322 and whether the guidelines supersede and, in effect, nullify Melzer.” Marshall, 404 Pa.Super. at 634-35, 591 A.2d at 1064. In Marshall, the appellant argued that the trial court erred in not performing an on-the-record Melzer calculation and in relying exclusively upon the support guidelines to fashion an award of support. In an attempt to assign continuing validity to Melzer in light of the recently enacted support guidelines, the court in Marshall stated that neither Melzer nor the guidelines can be ignored when calculating an award of support. Id. 404 Pa.Super. at 639, 591 A.2d at 1066. Specifically, the court in Marshall stated:

Melzer is not to be mechanically applied nor is it superseded by the support guidelines. Rather, it [Melzer ] becomes a standard against which the guideline application in a particular case can be tested. This does not mean that the court must run a Melzer formula and a guideline application in every case. Rather, it means the court may apply the guidelines, but if one of the parties proposes a Melzer calculation that seriously conflicts with the guidelines, the court must be able to explain the difference. Melzer and the guidelines remain viable____ It also means that if the court utilized neither the guidelines nor the Melzer formula, and the resulting support Order does not come within a reasonable degree of conformity with a Melzer calculation, it will be reversed and remanded.

Id. 404 Pa.Super. at 640, 591 A.2d at 1066. The court in Marshall advocates a middle ground by finding that if it is contended that the guideline figure failed to produce a result which is within the reasonable range of what a Melzer calculation would have produced, then the guidelines alone will not prevail. Id. 404 Pa.Super. at 639, 591 A.2d 1060. Marshall also states that if no objection is made to the relevance of Melzer at trial, or upon review, then it is presumed that any claim concerning the applicability of Melzer is waived and the guideline amount will be tested against the internal standard as set forth by the guidelines. Id. 404 Pa.Super. at 640, 591 A.2d 1060. In effect, Marshall attempts to reduce Melzer, our supreme court’s most comprehensive pronouncement on support law, to a measuring stick that may or may not be utilized.

Judge Brosky believes that the guidelines are a “tacit rejection of the current process,” and an implicit rejection of the need to perform a Melzer calculation. Moreover, Judge Brosky reasons that this conclusion is buttressed by the fact that the guidelines were drafted to expedite support hearings without court involvement.

Although Judge Brosky’s view offers a more definitive answer to the instant dilemma than Marshall, I, nonetheless, must disagree. After a studied review of the support guidelines, the statute which authorized their enactment, and the Melzer opinion, I conclude that the guidelines are to be applied in harmony with, and not in substitution of, Melzer.

In Melzer, our supreme court set forth guidelines for the calculation of child support awards. Melzer, 505 Pa. at 472-475, 480 A.2d at 996. See Ryan v. Delong, 371 Pa.Super. 248, 538 A.2d 1 (1987). As we have stated numerous times, Melzer eschewed strict mechanical formulas and endorsed a flexible approach to the determination of child support. Melzer, 505 Pa. at 477-478, 480 A.2d at 999 (Flaherty and Hutchinson, JJ, concurring); Ryan, 371 Pa.Super. at 251, 538 A.2d at 2.

The Melzer court recognized the need to give similar treatment to similarly situated parties. It also acknowledged the importance of an individualized manner based upon an actual quantification of the reasonable needs of the parties and the parental standard of living. The Melzer formula ingeniously achieves all of these seemingly conflicting objectives.

Ryan, 371 Pa.Super. at 252, 538 A.2d at 3. Pursuant to Melzer, this court has required trial courts to calculate the Melzer formula on the record. However, we have permitted the trial court to adjust the resulting support award if deviation from the formula is justified under the circumstances. Ryan, 371 Pa.Super. at 252, 538 A.2d at 2 (quoting Dewalt v. Dewalt, 365 Pa.Super. 280, 285, 529 A.2d 508, 511 (1987)). As such, we have attempted to heed the supreme court’s admonition that the Melzer formula should not be mechanically applied. Ryan, 371 Pa.Super. at 252, 538 A.2d at 2.

Following Melzer, our legislature authorized the enactment of support guidelines by the courts of 'common pleas. See 23 Pa.C.S. § 4322. This statute was enacted in response to a federal mandate arising from the concern that similarly situated children were not being treated similarly. See U.S. Department of Health and Human Services, Development of Guidelines For Establishing and Updating Child Support Orders, 2-3 (1985); Ryan, supra. The former section 4322, which directed the counties to calculate the reasonable needs of the children based upon parental income and assets while allowing for deviations when faced with exceptional circumstances, clearly embodied the concerns of Melzer. Ryan, 371 Pa.Super. at 253, 538 A.2d at 3. It is well settled that “[t]he legislature’s use of statutory language similar to that used in a prior judicial, decision is assumed to constitute legislature approval of that decision.” Id. See In re Lock’s Estate, 431 Pa. 251, 244 A.2d 677 (1968). Former section 4322 and the case law, particularly Melzer, were harmonious. Ryan, supra. See Szillery v. Wheaton, 382 Pa.Super. 394, 400, 555 A.2d 237, 240 (1989) (“Although Section 4322 was promulgated in response to our Supreme Court’s decision in Melzer, Section 4322 has not superseded Melzer ”). Consequently, I do not believe that the legislature intended that the guidelines supersede Melzer.

Recently, section 4322 was amended:

(a) Statewide guideline.—Child and spousal support shall be awarded pursuant to a Statewide guideline as established by general rule by the Supreme Court, so that persons similarly situated shall be treated similarly. The guidelines shall be based upon the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support. In determining the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support, the guideline shall place primary emphasis on the net incomes and earning capacities of the parties, with allowable deviations for unusual needs, extraordinary expenses and other factors, such as the parties’ assets, as warrant special attention. The guideline so developed shall be reviewed at least once every four years.
(b) Rebuttable presumption—There shall be a rebuttable presumption, in any .judicial or expedited process, that the amount of the award which would result from the application of such guideline is the correct amount of support to be awarded. A written finding or specific finding on the record that the application of the guideline would be unjust or inappropriate in a particular case shall be sufficient to rebut the presumption in that case, provided that the finding is based upon criteria established by the Supreme Court by general rule within one year of the effective date of this act.[]

23 Pa.C.S. § 4322 (emphasis added). When comparing section 4322(a) with its predecessor, it is evident that the policies underlying the enactment of the guidelines have remained constant. Specifically, other than authorizing the supreme court to establish the support guidelines and requiring the guidelines to be reviewed every four years, this section has remained substantially the same. See footnote 1, supra. Clearly, section 4322(a) continues to embody the concerns of Melzer; it merely adds that the supreme court, not the individual counties, will have the responsibility of addressing those concerns through the enactment of support guidelines. See Ryan, supra.

Section 4322(b) was also added by the December 20, 1989 amendments. It provides that there shall be a rebuttable presumption that an award entered pursuant to the support guidelines is the correct amount of support to be awarded. 23 Pa.C.S. § 4322(b). While section 4322(b) now assigns a rebuttable presumption to a support award calculated pursuant to the support guidelines, it does not explicitly or implicitly state that Melzer is to be disregarded.

A reading of the comments to the support guidelines reveals that the guidelines are based upon the Income Shares Model developed by the Child Support Guidelines Project of the National Center for State Courts. Pa.R.C.P. 1910.16-1, explanatory comment. The Income Shares Model is premised on the concept that the child should receive the same proportion of parental income that he or she would have received if the parents had remained together. Id. Therefore, although we recognize that the guidelines allow for deviation from the grids or formulas and require the hearing officer or court to consider other relevant factors, see Pa.R.C.P. 1910.16-5(a), a support award entered solely on the basis of the guidelines would be determined primarily by the parents’ income. Melzer, on the other hand, requires that support determinations be based upon a formula which specifically considers the reasonable needs of the children as well as the respective parties’ income available for support. Melzer, supra. As such, Melzer requires an individualized determination, not a support award based upon grids or formulas. Ryan, 371 Pa.Super. at 253, 538 A.2d at 3.

Essentially, wife argues, and Judge Brosky concurs, that the goal of the support guidelines, similar treatment for similarly situated persons, differs from Melzer’s individualized approach to support awards and that therefore Melzer has, in effect, been abandoned. Judge Brosky states that Melzer and the guidelines advocate differing approaches to determining support awards which cannot be harmonized, and also opines that it is difficult to imagine how the process of determining support awards can be simplified if the guidelines are to be used in conjunction with Melzer. Although simplicity is a concern, fairness and justice must be our goal. Moreover, the courts of this Commonwealth had, with varied success, applied the now-replaced county guidelines along with Melzer when determining support awards. In the absence of Melzer calculations, this court has remanded cases to the trial court to place the Melzer formula on the record. More importantly, the guidelines are just that, guidelines; they, by their very nature, cannot be binding. Marshall, supra. As such, they are merely a starting point for the calculation of a support award. See Pa.R.C.P. 1910.16-5(a). The guideline support award must then be harmonized with the Melzer formula to arrive at an appropriate award of support which is reflective of the individual needs of the parties involved. While the guidelines require that the court consider other relevant factors, Pa.R.C.P. 1910.16-5(a), the Melzer formula guarantees that an individualized support award will be entered which will reflect the parties’ particular needs. Thus, I would advocate that the guidelines be utilized as a starting point and that thereafter the Melzer formula be calculated to arrive at an individualized support determination. Cf. Marshall, supra. After this figure is reached, any necessary adjustments can be made. See Ryan, supra. The figure reached after application of the Melzer formula, with adjustments if warranted, would be, in my opinion, the correct amount of support, regardless of what the support award would have been under the guidelines.

I therefore find that the support guidelines’ goal of similar treatment for similarly situated individuals must be harmonized with Melzer’s mandate that each support determination be based upon a considered evaluation of the reasonable needs of the children and the parents’ reasonable expenses and earning capacities. Melzer, supra; DeWalt, supra. This approach strikes a proper balance between the twin goals of similar treatment and particularized support determinations. Ryan, 371 Pa.Super. at 253, 538 A.2d at 3. Moreover, I perceive these goals to be complementary, not contradictory.

The Commonwealth of Pennsylvania is fortunate to boast a diverse population. Consequently, the families of this state necessarily reflect this rich diversity. When these families are intact, the courts and the legislature, absent abuse, are powerless to interfere in the way two parents decide to raise their children. When a family is no longer intact, the state enters the parties’ lives to ensure that children are not unjustly deprived of opportunities they would have had if the family had remained intact. See Pharoah v. Lapes, 391 Pa.Super. 585, 599, 571 A.2d 1070, 1078 (1990) (Cirillo, P.J., dissenting). While the guidelines advance the goal of similar treatment, we would be foolhardy to assume that any objective formula or grid could reflect the manner in which two parents will choose to rear their children. See O’Donnell, Smith v. Smith: No Magic Formula for Determining Child Support Payments of the Noncustodial Parent, 18 Will.L.Rev. 353, 363 (1982). A parent’s standard of living is influenced by, among other things, religious and moral convictions, educational and cultural backgrounds, in addition to his or her level of income. Id. Consequently, we may, in the interests of uniformity and efficiency, utilize formulas and grids, but we cannot ignore the inherent subjectivity of support determinations. See id.

Unlike my colleague, I am not convinced that the guidelines’ alleged tacit rejection and implicit disapproval of Melzer is enough to conclude that Melzer, the seminal authority in support cases, has been superseded. On the contrary, I feel that because the guidelines do not explicitly state that Melzer has been superseded, the Melzer formula remains viable. In sum, in the absence of further guidance from our supreme court or a specific directive from our legislature, I am constrained to conclude that because section 4322 continues to embody the concerns of Melzer, the support guidelines are to be read in harmony with Melzer.

Having determined that the support guidelines have not superseded Melzer, I would also decide that because husband did not withhold information from the trial court or provide inaccurate information, the trial court abused its discretion in not including a Melzer calculation in the record. See Racciato, 393 Pa.Super. at 309, 574 A.2d at 626 (“The calculated Melzer formula must be in the record to insure that an actual dollar figure is determined as to the reasonable needs and expenses of the parents and the children”).

Husband also argues that the trial court abused its discretion by entering a support order which did not allow him to meet his basic needs. Since I would conclude that the trial court abused its discretion when it did not apply the Melzer formula in conjunction with the support guidelines, I cannot determine if, considering the children’s needs and husband’s ability to pay, the support award is confiscatory. Consequently, I would not address this issue and would vacate the award of the trial court and remand the matter for a recalculation of husband’s support obligation.

BROSKY, Judge,

concurring.

I agree with the result reached by the majority and, to that extent, concur generally with the majority memorandum. However, I cannot agree with the majority that appellant’s third issue has been waived.

Appellant alleges that it was error on the part of the trial court to omit a Melzer calculation in the computation of support. The majority finds this challenge waived due to a failure to raise it in an answer to a request for a hearing de novo. However, a hearing de novo is, in essence, a brand new proceeding. Although it may be a wise practice to alert the court of matters that the parties felt were incorrectly done in the underlying proceeding, there is apparently no requirement that one do so. In D’Arciprete v. D'Arciprete, 323 Pa.Super. 430, 470 A.2d 995 (1984), we rejected a party’s argument that the court erred in a de novo hearing in considering the other party’s argument because no exceptions had been taken. We stated that de novo review means “full consideration of the case anew.” The de novo hearing is regarded as a brand new proceeding. Consequently, I cannot agree that appellant’s challenge was waived for failing to raise it in an answer to appellee’s request for a de novo hearing.

Turning to appellant’s third issue, appellant argues that it was an abuse of discretion to exclude a Melzer calculation in determining child support. Appellant argues that despite the court’s application of the statewide support guidelines, there remained a necessity that a Melzer calculation also be conducted. I cannot agree. Rather, I believe that a Melzer calculation is no longer necessary when the statewide guidelines are applicable. I base this statement upon the fact that there are several indications that the legislature and Supreme Court have either rejected or abandoned the Melzer approach for the majority of cases where the joint monthly net income is under $8,000.

The statewide support guidelines allow for a relatively quick determination of an individual’s presumptive support obligation taking into consideration the respective earnings of both parents. It presumptively arrives at a figure which allows for the reasonable needs of the child or children consistent with the abilities of the parents to provide support. In short, it provides a convenient and uniform process to arrive at a figure for support taking into consideration all relevant factors consistent with the Commonwealth’s support policies. In this respect, it accomplishes essentially the same thing that the Melzer formula purports to do. However, to the extent that the statewide support guidelines properly advance the support policies of the Commonwealth, the utility of making dual calculations of support, one under the guidelines and one under Melzer; is greatly diminished. That is, in the best case scenario the two methods would provide approximately the same support obligation. In the worst case scenario the two methods would provide disparate figures, in which case a second dilemma would surface. Presented with two conflicting numbers the parties would be forced to argue which is the more reasonable and the courts will be forced to choose between the competing figures or engage in a process of compromise.

There are several strong logical suggestions that the legislature’s initiation of the statewide support guidelines represents either an abandonment or rejection of the Melzer approach. It appears indisputable that one of the goals meant to be accomplished by passage of the guidelines is the expedition of support claims. The explanatory comments to the guidelines assert that some of the benefits to be derived from implementation of the guidelines are “resolution of support issues without court involvement” and “support hearings in which the factual and legal issues are more clearly defined.” By implying this much, a preference is being stated that the guidelines be used instead of the current process, i.e. Melzer. In contrast, it is difficult to imagine how the process can be simplified or complications minimized if the guidelines are to be used in conjunction with Melzer.

Additional indicia of the legislature’s intent can be found in the recognition that the statewide guidelines were, to a degree, passed upon the initiative of federal legislation which implicitly finds the same difficulty with support processes throughout the country. Under the Child Support Enforcement Amendments of 1984, P.L. 98-378 and 45 CFR 302.56, states are required to develop guidelines for setting amounts of child support awards. The advisory panel servicing this federal legislation indicated that guidelines can materially improve the adequacy of orders, enhance consistent and equitable treatment of litigants and facilitate more efficient adjudication of cases. Thus, the legislature’s initiation of a process, the guidelines, which is rather explicitly grounded upon a dissatisfaction with the- present process of support litigation is, in itself, a form of tacit rejection of the current process. But this tacit rejection does not end at this point, there is further evidence of implicit rejection of the individualized approach to determining support obligations, i.e., Melzer.

The statewide guidelines, as adopted, utilize the Income Shares Model developed by the Child Support Guidelines Project of the National Center for State Courts. As stated in the explanatory comment, “[t]hat Model is predicated on the concept that the child should receive the same proportion of parental income that he or she would have received if the parents lived together.” Although both Melzer and the statewide guidelines have as their objective the provision of an appropriate amount of child support, their approach to reaching the applicable figure is bi-polar. Melzer represents an individualized approach focused first on established needs. The guidelines are a more generalized approach which focuses on available income first. The philosophical approaches to reaching the support figure are not truly capable of harmonizing. Therefore, I believe, the adoption of this income shares approach, coupled with the legislature’s indication that emphasis be placed on the net incomes of the parties, represents an implicit rejection of the so-called reasonable needs approach that Melzer supposedly represents in favor of the income shares/proportionate income approach incorporated in the guidelines. Indeed, section 4322 states support “shall be awarded pursuant to a statewide guideline ... so that persons similarly situated shall be treated similarly.” Clearly this is a stated preference against the individualized approach which Melzer provides. Furthermore, the usage of the word “shall” seems to leave little room for discretionary application. Rather, application of the guidelines appears quite mandatory.

There is further evidence of an intent to have the guidelines control the support determination at Rule 1910.16-5(d), where it is stated “[t]he guidelines contain two stated limitations based upon monthly net income. First, The Chart of Proportionate Expenditures ... states percentages up to a joint monthly net income of $8,000 only. Consequently, if the parties joint monthly net income exceeds this amount, the case is outside the guidelines and the amount of support is to be determined pursuant to existing case law.” This comment strongly suggests that to the extent the monthly net income is $8,000 or less, the amount of support shall be determined by application of the guidelines and that the guidelines will apply instead of the existing caselaw, i.e., Melzer.

I also believe that the Supreme Court’s choice not to perpetuate the Melzer formula in the guidelines presents evidence that a dual calculation is unnecessary. The guidelines, as they appear in the rules of civil procedure, were drafted by the Supreme Court with full knowledge of the Melzer case. Even though the Supreme Court was setting forth a rather divergent approach to establishing a support obligation and using mandatory language such as “shall,” they did not indicate, in the guidelines, that a Melzer calculation should also be conducted. The Court’s failure to indicate a need for conducting a Melzer review along with a guidelines determination, is itself strong evidence that the Supreme Court does not believe that a Melzer calculation is necessary when the guidelines are utilized.

For the above reasons I believe that there has been established a clear preference and policy that support determinations be governed by the guidelines, and the guidelines only, at least when the income of the parties falls within the $8,000 monthly income limitation set forth in the rules. When the available income is outside this limitation the courts shall utilize the existing caselaw to determine a proper support obligation. Although this theory rests soundly upon the above outlined rationale, I believe the above dissertation would be incomplete if I did not address some of the commonly asserted concerns relating to guideline determinations of support.

Critics of guidelines assert them to be too formulated and inflexible to be relied upon to serve an area as important and sensitive as child support. However, I believe these fears are mostly unfounded and unjustified. By definition, the guidelines in consideration here provide a presumptive support obligation which can be rebutted and adjusted. Thus, there remains enough flexibility within the process to fashion an appropriate support obligation depending on the particular circumstances of a given case.

It is indisputable that the guidelines allow for deviation from the figure derived from an application of the grid and requires consideration of other factors. Yet critics seem troubled that if the grid figure is utilized then the support obligation would be determined primarily by the parties income. Despite intimating a philosophical problem with this approach it has never been explained, to my satisfaction, what is so inherently evil or unacceptable about such an approach.

True, Melzer incorporates a specific finding of the child’s reasonable needs. However, the guidelines, by definition, also incorporate a finding of the child’s reasonable needs, albeit a more statistical and generalized finding than under Melzer. By allowing for deviation upon a proper showing, any necessary deviation can be attainable if the parties income allows it. I believe the interests of support litigation can be advanced by clarifying the role of state guidelines and emphasizing the fact that they allow deviation for the circumstances of the particular case.

For the within reasons, I agree that the support order must be affirmed.

      . Marshall was authored by the Honorable Patrick Tamilia, and the two remaining judges on the panel concurred in the result.

      . The courts of common pleas shall develop guidelines for child and spousal support so that persons similarly situated shall be treated similarly. The guidelines shall be based upon the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support. In determining the reasonable needs of the child or spouse seeking support and the ability of the obligor to provide support, the guidelines shall place primary emphasis on the net incomes and earning capacities of the parties, with allowable deviations for unusual needs, extraordinary expenses and other factors, such as the parties’ assets, as warrant special attention.
      23 Pa.C.S. § 4322 (amended effective January 1, 1990).

      . The underlined portions represent the changes that were effected pursuant to the December 20, 1989 amendment.

      . Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984).

      . See, Development of Guidelines for Child Support Orders, Final Report, March 1987, Robert G. Williams, Ph.D., p. 1-6.


source: Caselaw Access Project

author: BECK, Judge: McEWEN, Judge,

license: Public Domain

text:
    609 A.2d 828
    Curtis W. REEVES, Appellant, v. MORELLI-HOSKINS FORD, INC., and Ford Motor Company.
    Superior Court of Pennsylvania.
    Argued Jan. 22, 1992.
    Filed June 16, 1992.

      Joseph L. Higgins, West Chester, for appellant.
    Elizabeth A.C. Venditta, Philadelphia, for appellee.
    Before McEWEN, BECK and KELLY, JJ.
   BECK, Judge:

The issue is whether under the Lemon Law the manufacturer of an allegedly defective car has a duty to refund the full purchase price to the buyer of the car where the car has been repossessed by the bank that financed the purchase of the car as a result of the buyer’s failure to make installment payments.

Appellant Curtis W. Reeves initiated this action against appellees, retailer Morelli-Hoskins Ford, Inc. and manufacturer Ford Motor Company, asserting that he is due a refund under the Pennsylvania Automobile Lemon Law (the “Lemon Law”), 73 P.S. § 1951 et seq. The trial court granted summary judgment in favor of appellees. We affirm.

In May, 1987 appellant Reeves purchased a van from appellee Morelli-Hoskins Ford. Reeves made financing arrangements with Germantown Savings Bank (“GSB”). GSB was noted as a lienholder on the Certificate of Title. In December, 1988 Reeves filed the instant complaint under the Lemon Law. A year later, in December, 1989 Reeves stopped making loan payments to GSB. On June 6, 1990, GSB repossessed the van. Thereafter, pursuant to the installment loan agreement, Morelli-Hoskins Ford repurchased the contract from GSB and took possession of the van.

Appellees filed a motion for summary judgment. They argued that since Reeves was no longer the owner of the vehicle, he was barred from recovery under the Lemon Law. The trial court agreed and granted summary judgment.

On appeal, appellant Reeves contends that the trial court erred in granting appellees’ motion for summary judgment without ruling on the question of law raised by an admission allegedly made by appellees in the course of oral argument on the motion for summary judgment to the effect that they had accepted the return of the subject vehicle after it was repossessed by GSB. Reeves argues that under section 1955 of the Lemon Law this “admission” entitles him to recover the full purchase price.

The standard of appellate review applicable to this case is as follows:

On review of an order granting summary judgment, we must determine whether the moving party has established that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Pa.R.C.P. 1035(b); Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466, 468-69 (1979). In making this determination, we must examine the record in the light most favorable to the non-moving party, who is entitled to the benefit of all reasonable inferences. Pennsylvania Gas & Water Co. v. Nenna & Frain, Inc., 320 Pa.Super. 291, 467 A.2d 330 (1983). All doubts as to the existence of a factual dispute must be resolved in favor of the non-moving party and the entry of summary judgment is appropriate only in the clearest of cases. Thompson Coal, supra.

Mentzer v. Ognibene, 408 Pa.Super. 578, 597 A.2d 604, 607 (1991).

The core of appellant’s argument is section 1955 of the Lemon Law:

§ 1955. Manufacturer’s duty for refund or replacement. If the manufacturer fails to repair or correct a nonconformity after a reasonable number of attempts, the manufacturer shall, at the option of the purchaser, replace the motor vehicle with a comparable motor vehicle of equal value or accept return of the vehicle from the purchaser and refund to the purchaser the full purchase price____

Since this section clearly limits the remedy of returning the vehicle and receiving a refund of the full purchase price to the purchaser of the vehicle, the trial court regarded the determinative question in this case to be whether Reeves retained his status as a purchaser and, therefore, is entitled to a refund of the purchase price. The Lemon Law defines “purchaser” as follows:

§ 1952. Definitions.
“Purchaser.” A person, or his successors or assigns, who has obtained ownership of a new motor vehicle by transfer or purchase or who has entered into an agreement or contract for the purchase of a new motor vehicle which is used or bought for use primarily for personal, family or household purposes.

The trial court concluded that this section limits purchasers entitled to relief under section 1955 of the Lemon Law to persons who retain possession and ownership of the vehicle in question. We agree with this construction.

In Industrial Valley Bank v. Howard, 368 Pa.Super. 263, 533 A.2d 1055 (1987), appeal denied, 520 Pa. 576, 549 A.2d 136 (1988), a panel of this court emphasized that in interpreting the definition of purchaser found in section 1952, courts should be reluctant to extend the definition of “purchaser” to include parties that do not fall within the wording of the statute. We agree. Therefore, reading the definition of “purchaser” to mean only those persons to whom it expressly refers, we find that the definition implies continuing ownership and possession of the vehicle. Turning to section 1955, we find that it expressly grants the remedy of return and refund to a “purchaser.” Thus, construing section 1952 and section 1955 together, we find that only a person who owns and possesses a motor vehicle used primarily for personal, family or household purposes can avail himself of the remedy provided in section 1955. When the car in the instant case was repossessed, appellant lost his status as a “purchaser” and, therefore, cannot recover under section 1955.

In reaching this conclusion, we also find the decision in Ford Motor Company v. Dunsmore, 374 Pa.Super. 303, 542 A.2d 1033 (1988), to be instructive. In Dunsmore, a panel of this court held that the Lemon Law does not permit a buyer of an allegedly defective automobile to discontinue making payments under a financing contract while pursuing Lemon Law remedies. The Dunsmores attempted to utilize the Lemon Law as a defense to a replevin action by the Ford Motor Company. The court held that the Lemon Law is not a defense to a replevin action. In reaching this conclusion, the Dunsmore court emphasized that the legislature had not included a provision allowing the purchaser of an allegedly defective automobile to suspend making payments under a financing arrangement for the automobile. Instead, the legislature provided other remedies for the purchaser of a defective vehicle. For example, the automobile manufacturer must repair or correct certain nonconformities and if the manufacturer fails to do so after a reasonable number of attempts, the manufacturer must either replace the vehicle or accept return of the vehicle and refund the purchase price, less certain allowances. 73 P.S. §§ 1954 & 1955. According to Dunsmore, in not providing for suspension of payments under a financing agreement, the legislature intended that the consumer and not the creditor bear the risk of suffering irreparable harm if the Lemon Law action proves unsuccessful.

The rationale supporting the holding in Dunsmore is equally applicable to the case at hand. Appellant, as well as the Dunsmores, could have maintained their status as purchasers and therefore their right to a remedy under the Lemon Law by making payments on the vehicles as contractually required. See Dunsmore, 374 Pa.Super. at 305-07, 542 A.2d at 1035. The Lemon Law contains no provision allowing relief for those plaintiffs who suspend their loan payments. Any expansion of the definition of purchaser to include those who no longer own or possess their vehicles must be a legislative decision. See Industrial Valley Bank, supra.

Thus, we find that the trial court’s analysis in support of its grant of summary judgment for appellees was correct. However, appellant argues that in this case there is an additional fact of central importance that argues in favor of granting him relief under the Lemon Law despite his loss of possession and ownership of the vehicle. Appellant asserts that during oral argument on appellees’ motion for summary judgment, they admitted that they had accepted the return of the subject vehicle and that the trial court should have addressed the effect of this alleged acceptance of the vehicle on appellant’s rights under the Lemon Law. We disagree.

There is absolutely no support for appellant’s assertion regarding the “admission” by appellees in the certified record before us. There is no transcript of the oral argument at which the alleged admission was made and there is no documentary evidence submitted to the trial court establishing the alleged fact that appellees accepted the return of the vehicle. Moreover, appellees do not concede on appeal that they accepted the return of the vehicle. Although appellee Morelli-Hoskins Ford, Inc. states in its brief that it was required by contract to repurchase the vehicle from GSB after GSB repossessed the vehicle from appellant, they do not concede that they thereby “accepted the return of the vehicle” within the meaning of section 1955. Moreover, there is no indication that the manufacturer, appellee Ford Motor Company, has taken any action regarding the vehicle which could possibly be construed as an acceptance of the return of the vehicle. Since under the express terms of section 1955 it is the manufacturer who must accept return of the vehicle and refund the purchase price to the purchaser, the lack of any record support for appellant’s allegation that the manufacturer accepted the return of the vehicle is crucial.

We can consider only the certified record on appeal and it is the responsibility of the appellant to provide us with a complete record. See Fox v. Gabler, 377 Pa.Super. 341, 547 A.2d 399 (1988); Wiegand v. Wiegand, 363 Pa.Super. 169, 525 A.2d 772 (1987), appeal denied, 517 Pa. 624, 538 A.2d 877 (1987). We certainly cannot reverse the trial court, with whose reasoning we completely agree, based on unsupported allegations of additional facts contained in appellant’s appellate brief.

For the above reasons, we find that the trial court did not err.

Order affirmed.

McEWEN, J., files a dissenting statement.

McEWEN, Judge,

dissenting.

The careful analysis and exceptional expression of the view of the majority will likely reveal dissent as improvident, but I, nonetheless, am compelled to this expression since I cannot agree that the Lemon Law definition of “Purchaser” is restricted to individuals who “retain possession and ownership of the vehicle”. Thus, I would vacate the order granting summary judgment and permit appellant to proceed in the trial court to seek refund of “the full purchase price”. The majority notes that this Court has displayed a reluctance to expand the definition of “Purchaser” to include the “lessee” of a motor vehicle. Industrial Valley Bank v. Howard, 368 Pa.Super. 263, 533 A.2d 1055 (1987) , appeal denied, 520 Pa. 576, 549 A.2d 136 (1988). If this Court is to persist in the reluctant mode, we would here refrain from expanding the legislative definition of “Purchaser” by adding, to the legislative requirement of ownership, a judicial requirement of “continued possession and ownership”. Nor, in my opinion, is a study of this appeal illuminated by the holding of this Court in Ford Motor Credit Co. v. Dunsmore, 374 Pa.Super. 303, 542 A.2d 1033 (1988) , since the manufacturer there was not, as it is here, a party to that litigation, and this Court was there obliged, maeste dictu consumptore, to view Ford Motor Credit Company, the financial institution, as an entity separate and distinct from Ford Motor Company, the manufacturer. This Court need not heed public policy arguments to afford the consumer the right to pursue his claim against this automobile manufacturer but need simply refrain from altering and restricting the definition provided by the legislature. Thus it is that I would vacate the order granting summary judgment.


author: OLSZEWSKI, Judge. JOHNSON, Judge,

text:
    609 A.2d 832
    COMMONWEALTH of Pennsylvania v. Lawrence LINES, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 6, 1992.
    Filed June 19, 1992.

      Glenn A. Zeitz, Philadelphia, for appellant.
    Stephen B. Harris, Asst. Dist. Atty., Warrington, for Com., appellee.
    Before OLSZEWSKI, JOHNSON, and HOFFMAN, JJ.
   OLSZEWSKI, Judge.

This is an appeal from the judgment of sentence rendered on July 19, 1991, by the Court of Common Pleas of Bucks County. Following a jury trial on October 10, 1986, appellant was convicted of first-degree murder, receiving stolen property, and conspiracy to hinder apprehension. Appellant absconded from the courthouse during jury deliberations, and on October 14, 1986 a bench warrant was issued for his arrest. On October 20, 1986, while appellant remained at large, post-trial motions for new trial and in arrest of judgment were filed on appellant’s behalf. In response, the Commonwealth filed a motion to quash these appeals due to appellant’s fugitive status. According to the record and docket entries, the trial court never acted upon the Commonwealth’s motion to quash. Appellant remained a fugitive from justice until December 21, 1986. In February of 1987, appellant retained new counsel who filed additional post-trial motions. After numerous evidentiary hearings, these motions were denied on May 23, 1991. Appellant was sentenced to life imprisonment on July 19, 1991, and this appeal followed.

Appellant presents three issues for our consideration. Appellee Commonwealth, however, proposes the additional argument that the trial court erred by denying its motion to quash appellant’s “appeal” since appellant was a fugitive from justice at the time post-trial motions were filed. The heart of the Commonwealth’s assertion challenges our ability to exercise appellate review of this case. For the reasons below, we quash this appeal; therefore, we will not attend to the merits of appellant’s arguments.

In the present case, the trial judge chose to pospone ruling on appellant’s first set of post-trial motions, and did not respond to the Commonwealth’s motion to quash. Instead, once appellant was returned to custody, the trial court allowed appellant’s new counsel to file additional post-trial motions and later denied these motions on other substantive grounds. Pennsylvania case law indicates that a trial court is without discretion and, therefore, must dismiss a defendant’s post-trial motions as long as a defendant is fugitive. Commonwealth v. Clark, 300 Pa.Super. 315, 318, 446 A.2d 633, 634 (1982), cert. denied, 496 U.S. 942, 110 S.Ct. 3229, 110 L.Ed.2d 675 (1990); Commonwealth v. Albert, 260 Pa.Super. 20, 22, 393 A.2d 991, 992 (1978); Commonwealth v. Boyd, 244 Pa.Super. 98, 100, 366 A.2d 934, 935 (1976). Accordingly, we find that the trial judge erred by failing to act on the Commonwealth’s motion to quash.

With regard to the powers of this Court, case law has evolved which bars appellate review where an appellant has jeopardized his rights by becoming a fugitive. See Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984); Commonwealth v. Luckenbaugh, 356 Pa.Super. 355, 514 A.2d 896 (1986) (Olszewski, J., dissenting), reversed, 520 Pa. 75, 550 A.2d 1317 (1988); Commonwealth v. Jones, No. 193 E.D.1990, — Pa.-, 610 A.2d 439 (1992). In Commonwealth v. Passaro, appellant was a fugitive at the appellate level since he escaped following the filing of his appellate brief, but before oral argument. Passaro, 504 Pa. at 613-614, 476 A.2d at 347-348. Thereafter, the Commonwealth’s motion to quash his appeal was granted. Id. Following his apprehension, appellant filed a petition to reinstate his appeal which was denied. Id. On appeal, appellant did not dispute the propriety of the dismissal of his appeal, but rather asserted his right to appellate reinstatement once apprehended. The Passaro Court acknowledged the right of appeal guaranteed by Article 5, section 9 of the Pennsylvania Constitution, but added that “... the right to appeal is conditioned upon compliance with the procedures established by this Court, and a defendant who deliberately chooses to bypass the orderly procedures afforded one convicted of a crime for challenging his conviction is bound by the consequences of his decision.” Id. Reasoning that appellant had exercised his right of appeal which he then forfeited by escaping, our Supreme Court held that appellant’s petition for reinstatement was properly denied. Id. The Passaro case has become the basis of subsequent decisions concerning the effect of fugitive status upon appellate rights.

In Commonwealth v. Luckenbaugh, a panel of this Court confronted a situation where appellant had escaped after filing a petition for reconsideration of sentence. Luckenbaugh, 356 Pa.Super. at 357 n. 1, 514 A.2d at 897 n. 1. This Court held that the lower court properly dismissed appellant’s petition, but continued to address the merits of the appeal claiming that appellant had returned to the jurisdiction and that challenges to the legality of a sentence could not be waived. Id. In a dissenting opinion, this author relied on the Passaro decision and countered that the appeal should not be reviewed since appellant forfeited his right to appellate review by escaping during the pendency of the petition for reconsideration. Luckenbaugh, at 358, 514 A.2d at 898. This author further stated, “This Court should not indulge in the whims of a petitioner who deliberately acted to avoid its rules.” Id. In line with this dissent, our Supreme Court reversed the Superior Court decision, per curiam, citing Passaro. Commonwealth v. Luckenbaugh, 520 Pa. 75, 550 A.2d 1317 (1988).

Finally, in Commonwealth v. Jones, our Supreme Court recently affirmed this Court’s en banc decision to quash the appeal of an appellant who was a fugitive during the appellate process. Appellant, who was charged with robbery and criminal conspiracy, escaped when jury selection had commenced but had not yet been completed. Jones, — Pa. at -, 610 A.2d at 441. Appellant was tried and convicted, in absentia, pursuant to Pa.R.Crim.P. 1117(a) which provides that “defendant’s absence without cause shall not preclude proceeding with the trial including the return of the verdict.” Jones, at —, 610 A.2d at 441. While appellant remained at large, his post-verdict motions were denied on the merits, he was sentenced, his petition for reconsideration was denied arid a timely notice of appeál was filed. Id. Later, appellant was apprehended while his appeal was pending. Id. The issue before our Supreme Court was whether appellant had forfeited his appellate rights by becoming a fugitive from justice. In response, our Supreme Court held that:

A defendant’s voluntary escape acts as a per se forfeiture of of his rights of appeal, where the defendant is a fugitive at any time after post-trial proceedings commence. Such a forfeiture is irrevocable and continues despite the defendant’s capture or voluntary return to custody. Thus, by choosing to flee from justice, appellant has forever forfeited his right to appeal.

Jones, at-, 610 A.2d at 441 (emphasis added). Instantly, appellant escaped from the courthouse during jury deliberations and remained a fugitive for two months after the filing of his post-trial motions. Accordingly, under the direction of Jones, appellant has “forever forfeited his right to appeal” by electing to become a fugitive after post-trial procedures have begun.

Following the rationale espoused by our Supreme Court in Passaro and subsequently developed in the Luekenbaugh and Jones decisions, we find that we are precluded from reviewing appellant’s arguments and quash appellant’s appeal.

Appeal quashed.

JOHNSON, J., dissents.

JOHNSON, Judge,

dissenting.

I respectfully dissent.

While a jury was deliberating his case, Lawrence Lines absconded from the Bucks County Courthouse. Lines was convicted in absentia of first-degree murder, receiving stolen property, and conspiracy to hinder apprehension. While Lines remained at large, post-trial motions for a new trial and in arrest of judgment were filed on his behalf. In response, the Commonwealth filed a motion to quash those motions on the grounds that Lines had become a fugitive. Lines remained a fugitive until December 21, 1986. Lines obtained new counsel who filed additional post-trial motions on his behalf. On May 23, 1991, after numerous evidentiary hearings, the trial court denied Lines’ post-trial motions. Lines was sentenced to life imprisonment. The trial court never acted upon the Commonwealth’s motion to quash.

The Majority first concludes that, when a defendant is a fugitive, a trial court “is without discretion and, therefore, must dismiss a defendant’s post-trial motions as long as a defendant is fugitive.” Majority Opinion at 440. For this position, the Majority relies upon Commonwealth v. Boyd, 244 Pa.Super. 98, 366 A.2d 934 (1976), Commonwealth v. Albert, 260 Pa.Super. 20, 393 A.2d 991 (1978), and Commonwealth v. Clark, 300 Pa.Super. 315, 446 A.2d 633 (1982), cert. denied, 496 U.S. 942, 110 S.Ct. 3229, 110 L.Ed.2d 675 (1990).

The Majority also concludes that case law “bars appellate review where an appellant has jeopardized his rights by becoming a fugitive.” Majority Opinion at 441. In reaching this conclusion, the Majority relies upon Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984), Commonwealth v. Luckenbaugh, 356 Pa.Super. 355, 514 A.2d 896 (1986), reversed 520 Pa. 75, 550 A.2d 1317 (1988), and Commonwealth v. Jones, 388 Pa.Super. 22, 564 A.2d 983 (1989) affirmed — Pa.-, 610 A.2d 439 (1992) (193 E.D. Appeal Docket 1990, filed May 19, 1992).

I find myself unable to join the Majority Opinion. In my view, the Majority’s propositions go beyond, and may be contrary to, established Pennsylvania law. The cases cited do not stand for either position asserted by the Majority. Having carefully reviewed cases addressing the powers of a court to dismiss or reinstate rights of review in cases involving fugitives, I conclude that a trial court may address the merits of post-trial motions on behalf of a defendant who has returned to the court’s jurisdiction in the exercise of its discretion. Accordingly, I dissent.

In Commonwealth v. Galloway, 460 Pa. 309, 333 A.2d 741 (1975), our Supreme Court held that there is no basis to dismiss an appeal by a defendant who escapes during an appeal but returns to the court’s jurisdiction before a decision is rendered. On the same rationale, that court remanded to the trial court for consideration of post-trial motions originally denied on the basis of the Galloway’s earlier fugitive status even though Galloway had been apprehended prior to that denial. Galloway stands for the proposition that a court is not to dismiss a pending review where a defendant is no longer a fugitive.

In Commonwealth v. Boyd, 244 Pa.Super. 98, 366 A.2d 934 (1976), this court held that a trial court may, in the exercise of its discretion, refuse to reinstate post-trial review where the motions filed on the defendant's behalf were dismissed in his absence. We were not confronted with whether a trial court must dismiss post-trial motions of a defendant. The question before us was whether the trial court’s reinstatement of post-trial review was discretionary; we found it to be so. Hence, I do not subscribe to the Majority’s reliance upon this case as authority for the proposition that the trial court was required to dismiss the pending review.

In Commonwealth v. Albert, 260 Pa.Super. 20, 393 A.2d 991 (1978), the defendant escaped and continued to be a fugitive while his appeal was pending. We quashed that appeal on the basis of the defendant’s continuing fugitive status and stated in dicta that, pursuant to Galloway, review would have been proper had Albert returned to the court’s control prior to the time of disposition. Again, we were not confronted with the question of whether the trial court or this court was compelled to dismiss in the defendant’s absence. Thus, I am also unable to join in the majority’s reliance upon Albert for the proposition that the trial court was compelled to dismiss post-trial motions in the instant case.

In Commonwealth v. Clark, 300 Pa.Super. 315, 446 A.2d 633 (1982), cert. denied, 496 U.S. 942, 110 S.Ct. 3229, 110 L.Ed.2d 675 (1990), we affirmed a trial court’s refusal to reinstate post-trial motions as a proper exercise of discretion. Like Boyd and Albert, Clark may not properly be relied upon for the proposition that the trial court must dismiss pending motions where the defendant continues to be a fugitive. Simply, that issue was not before this court.

Two years after this court decided Clark, our Supreme Court once again addressed the powers of Pennsylvania courts to dismiss cases based upon the defendant’s fugitive status. In Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984), the Court reviewed a decision of this court to quash Passaro’s appeal on the basis that he had escaped while his appeal was pending before this court. Passaro had returned to Pennsylvania following this court’s dismissal of his appeal, and he filed a petition for reinstatement. This court denied that petition.

Passaro appealed to our Supreme Court, contending that his right to appellate review, which is guaranteed by Article 5, section 9 of the Pennsylvania Constitution, could not be waived by escape. Our Supreme Court held that, even though the right of appeal is guaranteed by the Pennsylvania Constitution,

[T]he right to appeal is conditioned upon compliance with the procedures established by this Court, and a defendant who deliberately chooses to bypass the orderly procedures afforded one convicted of a crime for challenging his conviction is bound by the consequences.

Passaro, 504 Pa. at 614, 476 A.2d at 348. The Court held that “[t]he fact that a defendant is subsequently recaptured provides no basis for disturbing an order dismissing his appeal ... [A] defendant who elects to escape from custody forfeits his right to appellate review.” Id., 504 Pa. at 616, 476 A.2d at 349 (emphasis added).

The Passaro court went on to state:

[Passaro] does not challenge the fact that his escape justified the initial quashing of the appeal. Thus the question is not whether he should be stripped of his right of appeal because of his escape, but rather whether his apprehension, which he in no way assisted, should entitle him to rights already forfeited. We can ascertain no reason in logic or any policy which would support such a conclusion.

Id., 504 Pa. at 616-17, 476 A.2d at 349. See also, Commonwealth v. Judge, — Pa.-, 609 A.2d 785 (1992).

As in Boyd and Clark, the issue in Passaro concerned the reinstatement of review already dismissed during and as a result of the defendant’s escape. Each of those cases determined that a defendant is not entitled to have his right of review reinstated where he has escaped.

In Commonwealth v. Luckenbaugh, 356 Pa.Super. 355, 514 A.2d 896 (1986), the defendant had escaped after filing a motion to reconsider sentence on the basis that the sentencing judge had erroneously calculated his prior record score. This court determined that the trial court had properly dismissed the motion to reconsider because the defendant was then a fugitive. Nevertheless, we noted that the defendant had returned to our jurisdiction, and we proceeded to address the merits of the issues presented on the basis that the legality of a sentence could not be waived. Luckenbaugh, 356 Pa.Superior Ct. at 357 n. 1, 514 A.2d 897 n. 1.

The dissenting opinion in Luckenbaugh argued, to my view correctly, that, while the legality of a sentence cannot be waived, under Passaro, a defendant may forfeit any entitlement to review by escaping while that review is pending.

The Supreme Court granted review of the Luckenbaugh decision and reversed in a per curiam one line order:

Order of the Superior Court reversed. See Commonwealth v. Passaro, 504 Pa. 611, 476 A.2d 346 (1984).

Luckenbaugh, 520 Pa. 75, 550 A.2d 1317 (1988).

Finally, in Commonwealth v. Jones, 388 Pa.Super. 22, 564 A.2d 983 (1989), affirmed — Pa.-, 610 A.2d 439 (1992), this court considered whether we are empowered to reinstate post-trial motions which were dismissed by the trial court on the grounds that the defendant was then at large. We determined that, given our Supreme Court’s decisions in Passaro and Luckenbaugh, this court lacks such power. Jones, 388 Pa.Superior Ct. at 31, 564 A.2d at 987.

Having carefully considered Jones, Passaro and Luckenbaugh, I am unable to glean any support for the proposition that an appellate court cannot review an appeal where the defendant was a fugitive prior to appeal where the trial court did not dismiss post-trial motions. Rather, if those cases tell us anything applicable here, it would be that, as an appellate court, we should not interfere with the trial court’s discretionary decision to address a former fugitive’s post-trial motions on the merits.

The cases relied upon by the Majority fail to support either that a trial court must dismiss a defendant’s post-trial motions if the defendant becomes a fugitive, or that this court has no power to hear an appeal from a judgment of sentence rendered against a defendant who was a fugitive prior to appeal where the trial court has not dismissed his post-trial motions. Both of these propositions are required in order to reach the Majority’s conclusion that we are unable to render appellate review of the issues presented.

I reject the Majority’s determination that, because Lines absconded during the proceedings before the trial court, both that court and this court are prohibited from reviewing the merits of Lines’ issues. Instead, I would hold that the trial court’s refusal to act upon the Commonwealth’s motion to dismiss is to be reviewed on an abuse of discretion standard. Cf. Boyd; Clark. As applied to this case, I would conclude that the trial court has not abused that discretion; therefore, I would address Lines’ outstanding issues on the merits. Having considered the arguments which Lines’ presents in his brief, I conclude that these issues would afford him no relief. Accordingly, I would affirm the judgment of sentence.

For the forgoing reasons, I dissent.

      . Appellant was acquitted of robbery.

      . Specifically, appellant asks us to review:

        (1) Whether the attorney for the Commonwealth, in his closing presentation, continuously expressed his personal opinions of the evidence so as to deprive appellant of a fair trial.
      (2) Whether the Commonwealth committed prosecutorial misconduct in failing to disclose exculpatory evidence concerning its star witness, failing to comply with the discovery rules, and failing to correct perjured testimony of the star witness, thus requiring a new trial.
      (3) Whether appellant was denied effective assistance of counsel when defense counsel allowed the admittance of hearsay statements without objection, failed to properly prepare for trial and conduct an independent defense investigation, failed to utilize character witness testimony, and failed to develop and present a coherent and cogent theory of defense.
      Appellant’s brief at 2.

      . The Commonwealth’s motion to quash appellant’s "appeal’’ was, in actuality, an attempt to have appellant’s post-trial motions dismissed due to his fugitive status. At this point in the proceedings, notice of appeal had not yet been lodged.

      . See also, Commonwealth v. Judge, — Pa.-, 609 A.2d 785 (Pa. 1992) (Appellant forfeited his rights to appellate view of any claims of error by escaping from custody two days after sentencing. Since this was a death penalty case, however, our Supreme Court reviewed the sufficiency of the evidence and appellant’s sentence as mandated by 42 Pa.C.S.A. § 9711(h).).


author: TAMILIA, Judge:

text:
    609 A.2d 837
    Patricia Gillies HERCULES v. Arnold F. JONES, Executor of the Estate of Harold C. Terwilliger, Deceased, Robert H. Rogers, Arnold F. Jones and Donna Jones, Individually. Appeal of Arnold F. JONES, Executor of the Estate of Harold C. Terwilliger, Deceased and Arnold F. Jones and Donna Jones, Individually.
    Superior Court of Pennsylvania.
    Argued April 22, 1992.
    Filed June 23, 1992.

      William M. Kern, Clarion, for appellant.
    Terry R. Heeter, Clarion, for Hercules, appellee.
    Before TAMILIA, HUDOCK and HESTER, JJ.
   TAMILIA, Judge:

Arnold F. Jones, executor of the estate of Harold C. Terwilliger, takes this appeal from the October 25, 1991 judgment entered against defendants and in favor of plaintiff/appellee Patricia Gillies Hercules.

In 1968, when in danger of losing their 157-acre farm as a consequence of their failure to meet mortgage obligations, Harold C. Terwilliger and his wife, Zona M. Terwilliger, placed the farm in joint ownership with Richard E. Gillies, Jr., or Patricia Gillies, his wife, in exchange for the Gillies satisfying the mortgage. In 1975, the Terwilligers and Gillies Hercules, whose husband had passed away, entered two option and lease agreements with Mauersburg Coal Company which provided the lessors would receive $E25 for each ton of coal mined from the farm. Mrs. Terwilliger died two years later and Harold resided on the farm until his demise in 1979. Appellee Gillies Hercules has resided in Ohio since 1975.

During the summer of 1978, Mauersburg commenced surface mining operations on the farm and paid all royalties due pursuant to the leases directly to Harold Terwilliger. The amount paid is averred to have been $5,887.37. From September of 1978, when the leases were assigned to Wagner Coal Company, until Terwilliger’s death in 1979, royalties totalling $43,169.87 were likewise paid directly to Terwilliger, who, on April 2,1979, placed appellant Jones’ name on the savings and checking accounts in which the royalties were deposited. At no time did Terwilliger distribute to appellee her share of the royalties, owed as a consequence of her position as co-owner of the property and co-lessor of the lease to mine. In 1979, while attending Terwilliger’s funeral, appellee Gillies Hercules became aware mining on the farm had begun and, on January 18, 1980, made a demand on the estate for one-half of the royalties. Appellee’s demand was unsuccessful because the assets of the estate, which included, in addition to the farm, approximately $9,200 in personal property and a 26-acre tract of land, had been distributed without consideration for her claim. In February, 1982, appellee filed suit in equity demanding, among other things, the executor hold in trust and be enjoined from conveying the proceeds of the estate’s bank accounts. Appellee also demanded $24,528.62 plus interest representing her one-half interest in the royalties.

Sitting without a jury the court found, inter alia, appellee held undivided half interests in the 157-acre farm and the coal leases and was, therefore, entitled to a judgment against the estate for one-half of the royalties together with interest at a rate of six per cent (6%) per annum from the date of each royalty payment, said sum as of June 6, 1991, being $43,149.49. Appellant’s post trial motions were denied and this appeal followed.

Appellant presents eight issues for our consideration, beginning with an allegation the court erred by denying his preliminary objections. Appellant argued appellee should have been precluded from pursuing an action in equity when there was an adequate remedy at law for her to recover what appellant characterized as a mere debt.

This Court’s scope of appellate review in equity matters is narrow and is limited to determining whether findings of fact are supported by competent evidence, whether an error of law has been committed or whether there has been a manifest abuse of discretion. Riecelli v. Forcinito, 407 Pa.Super. 629, 595 A.2d 1322 (1991). In appellee’s prayer for relief she requested not only monetary compensation but also that the executor appellant be precluded from disposing of any of the proceeds from the decedent’s bank accounts and that said proceeds be held for her in trust. We find, because a request for the establishment and enforcement of a constructive trust is a matter within the jurisdiction of a court of equity, appellee would be unable to obtain a full remedy at law and, therefore, the court properly denied appellant’s preliminary objections. See Martino v. Transport Workers’ Union of Phila., 505 Pa. 391, 480 A.2d 242 (1984) (A court of equity has jurisdiction and will afford relief if the statutory or legal remedy is inadequate or if equitable relief is necessary to prevent irreparable harm). See also Peoples-Pittsburgh Trust Co. v. Saupp, 320 Pa. 138, 182 A. 376 (1936) (The mere fact a remedy at law exists is not sufficient to oust equitable jurisdiction; the question is whether the remedy is adequate or complete).

Next, appellant claims the court erred by granting appellee’s application to amend her complaint to add party defendant Donna J. Jones. Appellant also contends Jones’ demurrer at the close of appellee’s case was improperly denied. Appellant contends the motion to add Jones was not verified and appellee failed to state a cause of action against her.

Appellant’s boilerplate allegations will be responded to in an equally curt manner. An application to amend a complaint to add a party defendant pursuant to Pa.R.C.P. 2232(c) is not a pleading and, therefore, need not be verified by the plaintiff. Pa.R.C.P. 2232, Defective Joinder. Change of Parties. The cause of action against the defendant being added as a party defendant is set forth in the complaint and not in the Rule 2232(c) application. Appellant’s allegation the court erred by denying Jones’ demurrer at the close of plaintiff’s case was not preserved for review. Hreha v. Benscoter, 381 Pa.Super. 556, 554 A.2d 525 (1989), appeal denied, 524 Pa. 608, 569 A.2d 1367 (1989).

Next, appellant avers the court erred by ruling Jones’ claim of laches did not bar Hercules from recovering in this action. Appellant’s “argument” states the defense of laches was raised in the pleadings, and laches is defined as “neglect for an unreasonable time under circumstances permitting diligence to do what in law should have been done, and as an implied waiver.” (Appellant’s brief at p. 10.) However, without any argument linking the definition to the facts of this case, this Court is unable to address appellant’s phantom argument and we find the issue to be waived.

Appellant’s fourth argument contends the court erred by finding appellee’s amended complaint was filed in a timely fashion, in alleged contradiction to the Pennsylvania Rules of Civil Procedure. Rule 1028, Preliminary Objections, which governs the disposition of preliminary objections, is relied upon by appellant in support of his argument. Pa.R.C.P. 1028. Appellant argues appellee’s failure to file her amended complaint until one year and seven days after the application to amend was granted violated Rule 1028(e) which requires an amended complaint be filed within sixty (60) days after notice of the Order permitting such filing or within such other time as the court may fix. We hold Rule 1028 does not apply to the amendment of a complaint to join a party defendant pursuant to Pa.R.C.P. 2232(c), supra. Therefore, appellant’s argument is without merit.

The next three issues raised by appellant address the trial court’s conclusion of law the Terwilliger/Gillies deed created a joint tenancy between each married couple (Harold and Zona Terwilliger and Richard and Patricia Gillies), with each married couple holding an undivided one-half interest in the farm by the entireties. The deed conveyed the land in accord with the following language:

H.C. Terwilliger or Zona Terwilliger, his wife, of Clarion Township, or Richard E. Gillies, Jr. or Patricia Gillies, his wife, of 130V2 West Sandusky Avenue, Bellefontaine, Ohio
to the said grantees, or the survivor of them as joint tenants with the right of survivorship in all of the grantees and to the last survivor of them and not as tenants in common ...

The deed has two possible interpretations: 1) joint tenancy with each of the four grantees individually holding an undivided one-quarter interest; or, joint tenancy between the married couples, with each couple holding their undivided half interest as tenants by the entireties. Appellant urges the court adopt the former interpretation which would result in appellant, his wife and appellee each having owned an undivided third interest in the property when the coal leases were signed. (Appellee’s husband had since passed away.) Each joint tenant would, therefore, have been entitled to one-third of the coal royalties, with Zona’s one-third passing to appellant upon her demise. The court’s interpretation, and that suggested by the appellee and adopted by this Court, is alternative number two wherein the Terwilligers and the appellee each owned a one-half interest in the farm when the leases were signed, with each family being entitled to one-half of the coal royalties.

When interpreting instruments of conveyance, the court’s primary objective is to ascertain and effectuate the parties’ intent. Quarry Office Park Associates v. Philadelphia Elec. Co., 394 Pa.Super. 426, 576 A.2d 358 (1990). When the language of the document is free from ambiguity, the intent of the parties must be determined from the language of the deed. Wysinski v. Mazzotta, 325 Pa.Super. 128, 472 A.2d 680 (1984). In the case of ambiguous instruments, intent is determined by the situation and conduct of the parties, surrounding circumstances, the object they had in view and the nature of the subject matter. Rusciolelli v. Smith, 195 Pa.Super. 562, 171 A.2d 802 (1961). Where an uncertainty exists as to applicability of vague or ambiguous language, the court may resort to .extrinsic or parole evidence to explain, but not vary the written word of the deed. Doman v. Brogan, 405 Pa.Super. 254, 592 A.2d 104 (1991). Consideration may also be given to subsequent acts of the parties. Id.

Although arguably the conveying language is somewhat ambiguous, we find the extrinsic evidence supports a finding the two couples each held their half interest as tenants by the entireties as between them, and as joint tenants with the right of survivorship as between the two couples. Hercules testified explaining the circumstances giving rise to the creation of the deed (N.T., 6/6/91, pp. 6-9). In addition, a copy of the inheritance tax appraisement, which was admitted as part of plaintiffs exhibit 12 and is included in the appellee’s reproduced record, listed the farm as being jointly held. The inheritance tax return is more persuasive in light of the fact it was filed by appellant in his capacity as executor of the estate. Also, as reasoned by the trial court:

When making this limited interpretation, [basing an interpretation solely on the deed’s wording] the defendants argue that the Court should place greater weight on the use of the terms “or” and “all of the parties” than on the terms [sic] “his wife.” Even this limited interpretation overlooks the decision of the Supreme Court in [Heatter v. Lucas, 367 Pa. 296, 80 A.2d 749 (1951) ] which reasoned that:
The words ‘his wife’ can not be treated as mere surplusage; they occur in context in the classic form for the creation of a tenancy by the entireties. The significance to the marital status of two of the grantees.
Id., 367 Pa. at [301,] 80 A.2d at 752. Even if the interpretation is limited to the four corners of the Terwilliger Deed, the significance of the term “his wife” is sufficient to support our finding.

(Slip Op., Greiner, J., 9/24/91, p. 7.) We find the trial court did not err and appellant’s argument challenging appellee’s proprietary and monetary interests in the farm and the leases is without merit.

Appellant’s final argument alleges the court erred by imposing a constructive trust on the estate’s savings and checking accounts.

A constructive trust arises when a person holding title to property is subject to an equitable duty to convey it to another on the ground he would be unjustly enriched if he were permitted to retain it. Yoke v. Yoke, 466 Pa. 405, 353 A.2d 417 (1976); Denny v. Cavalieri, 297 Pa.Super. 129, 443 A.2d 333 (1982). The necessity for such a trust may arise from circumstances evidencing fraud, duress, undue influence or mistake. Id. The controlling factor in determining whether a constructive trust should be imposed is whether it is necessary to prevent unjust enrichment. Roberson v. Davis, 397 Pa.Super. 292, 580 A.2d 39 (1990). One who seeks the imposition of a constructive trust must do so by clear, direct, precise and convincing evidence. Id.

Having found appellee held a one-half interest in the coal leases, it follows she is entitled to one-half of those royalties paid to the decedent. To ensure that obligation be satisfied, the court properly constructed a trust precluding the executor from disposing of or otherwise encumbering the savings and checking accounts funds.

Based on the foregoing reasons of law and fact we affirm the October 25, 1991 judgment in favor of Patricia Gillies Hercules.

Judgment affirmed.

      . Appellee’s findings of fact, adopted by the trial court, erroneously aver her one-half share of the royalties, which total $49,057.24, equals $24,527.62. (See Findings of Fact, # 22, 24, 25 and 27.) This minor math error has been corrected by this memorandum.

      . Although appellant alleges a rule violation and an error by the court, he offers no suggested remedy should this Court find error. This Court notes with disfavor this capricious reasoning by appellant or lack thereof is reflected throughout his brief.


author: PER CURIAM:

text:
    609 A.2d 842
    R. Lynn MUELLER, Dennis Buday, Chris Burtner, Thomas Jolly, and Richard McMahon, Appellees, v. Jan ANDERSON and Linda Anderson, his Wife, Appellants.
    Superior Court of Pennsylvania.
    Argued April 7, 1992.
    Filed June 24, 1992.

      Irving M. Green, New Kensington, for appellants.
    Joseph M. Kristofik, Tarentum, for appellees.
    Before CAVANAUGH, DEL SOLE and BROSKY, JJ.
   PER CURIAM:

Jan and Linda Anderson appeal from the trial court order ordering them to pay counsel fees and directing the Sheriff of Westmoreland County to enter their property and remove a pavilion erected by Appellants. Finding no abuse of discretion, we affirm.

On August 10, 1990, a hearing in equity took place, at which time the trial court found Appellants, the defendants in the action, to be in violation of restrictive covenants affecting the River Forest Plan of Lots in Westmoreland County. The offending structure was a three-sided pavilion that Appellants had erected on their lot in the River Forest Plan. The trial court entered an order directing Appellants to remove the structure on or before April 15, 1991, or in the alternative, to incorporate the existing structure into a single family residence built in compliance with the restrictive covenants by that date. Appellants neither removed the pavilion nor exercised the alternative by the date in the order. A contempt hearing was held On July 16, 1991, and the trial court determined that Appellants were unable to demonstrate any disability preventing them from removing the structure. The court found Appellants to be in contempt of the August 1990 order, and then entered the order from which Appellants now appeal.

On appeal from a finding of contempt, this court’s inquiry is limited to an examination of whether the trial ;ourt committed a clear abuse of discretion. Estate of Baehr, 408 Pa.Super. 172, 596 A.2d 803, 805 (1991). A review of the facts reveals that a finding of contempt is indeed the only possibility, given the directives of the order and Appellants’ failure to act according to the order within the prescribed time period. A party may only be held in contempt of a court order when it appears that obedience of the court order is within the power of the party being coerced by such order. Biggan v. Foster Township Zoning Hearing Board, 272 Pa.Super. 513, 416 A.2d 575 (1979). There is no contempt if the alleged contemnor, without fault on his part is unable to comply with the order, and has in good faith attempted to comply. Wetzel v. Suchanek, 373 Pa.Super. 458, 541 A.2d 761 (1988); Grubb v. Grubb, 326 Pa.Super. 218, 473 A.2d 1060 (1984). The order in this case was sufficiently definite to put Appellants on notice of what terms they were violating. Janet D. v. Carros, 240 Pa.Super. 291, 362 A.2d 1060 (1976). Appellants did not choose the second alternative of incorporating the pavilion into a residence. Even assuming that Appellants were unable to construct such residence, they nevertheless failed to comply with the other alternative of simply removing the structure from their lot. Furthermore, Appellants failed to prove either that they were unable to remove the pavilion, or that they had attempted in good faith to remove it. Therefore, based upon the facts in the instant case, we find no abuse of discretion by the trial court and we affirm the order of the trial court which found Appellants to be in contempt.

Order affirmed.


author: WIEAND, Judge:

text:
    609 A.2d 843
    COMMONWEALTH of Pennsylvania v. Raymond SMULSKY, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 23, 1992.
    Filed June 26, 1992.

      Norris E. Gelman, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before ROWLEY, President Judge, WIEAND and MONTGOMERY, JJ.
   WIEAND, Judge:

Raymond Smulsky, having been found guilty of rape, involuntary deviate sexual intercourse and corruption of a five year old, female child, argues on direct appeal that the Commonwealth peremptorily challenged jurors in violation of the holding of the Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). After careful review, we conclude that appellant’s several arguments are lacking in merit.

Appellant was arrested for repeatedly abusing sexually his girlfriend’s five year old daughter. On October 27, 1989, he was tried by jury and was convicted of rape, involuntary deviate sexual intercourse and corruption of a minor. Póst-verdict motions were denied, and, on April 17, 1991, appellant was sentenced to prison for not less than 22V2 years nor more than 45 years. Following denial of a motion to modify the sentence, appellant filed the instant appeal.

Appellant, who is white, contends that during jury selection the prosecutor, over objection, utilized peremptory challenges to exclude blacks from the jury in violation of Batson v. Kentucky, supra. Batson requires that a criminal defendant’s jury be selected without purposeful racial discrimination. Once a defendant presents a prima facie case that such purposeful discrimination has occurred, the burden shifts to the prosecution to supply a legitimate, race-neutral reason for striking a potential juror. See Batson v. Kentucky, supra at 93-94, 106 S.Ct. at 1721, 90 L.Ed.2d at 85-86. See also Commonwealth v. Jones, 525 Pa. 323, 325-326, 580 A.2d 308, 309-310 (1990), cert. denied, — U.S. -, 111 S.Ct. 1009, 112 L.Ed.2d 1092 (1991); Commonwealth v. Weaver, 390 Pa.Super. 434, 437-438, 568 A.2d 1252, 1253 (1989), allocatur denied, 527 Pa. 610, 590 A.2d 297 (1991); Commonwealth v. Dinwiddie, 373 Pa.Super. 596, 600-601, 542 A.2d 102, 104 (1988), aff'd, 529 Pa. 66, 601 A.2d 1216 (1992). The Commonwealth does not meet its burden by stating baldly that its actions involved no racial motive or were done in good faith. Batson v. Kentucky, supra at 98, 106 S.Ct. at 1723-1724, 90 L.Ed.2d at 88. See also Commonwealth v. Dinwiddie, supra, 373 Pa.Superior Ct. at 601, 542 A.2d at 104-105.

Although several blacks served on appellant’s jury, it is clear that the prosecutor exhausted all seven of her peremptory challenges to exclude black venirepersons. Based thereon, the trial court found that defendant had demonstrated a prima facie case of racial discrimination under Batson. The Commonwealth then provided its reasons for excluding the black venirepersons, and the trial court found those reasons to be race-neutral.

Appellant’s presentation of a prima facie case is unchallenged in this appeal. Therefore, we must carefully examine the Commonwealth’s explanations for excluding black persons to determine if there is support for the trial court’s conclusion that those explanations were, in fact, valid and nondiscriminatory. The primary responsibility for assessing the validity of the Commonwealth’s explanations is vested in the trial court, see Commonwealth v. Lloyd, 376 Pa.Super. 188, 197-198, 545 A.2d 890, 894-895 (1988), for

“a finding of intentional discrimination is a finding of fact” entitled to appropriate deference by a reviewing court. Since the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference.

Batson v. Kentucky, supra at 98 n. 21, 106 S.Ct. at 1724 n. 21, 90 L.Ed.2d at 89 n. 21 (citations omitted). See also Commonwealth v. Woodall, 397 Pa.Super. 96, 99, 579 A.2d 948, 950 (1990).

A close examination of the voir dire examination discloses that the Commonwealth peremptorily dismissed three potential black jurors because they were employed as security guards, or because they were related to others who were employed as security guards. After striking one potential black juror for this reason, the prosecutor, Ms. Perlis, explained as follows:

Your Honor, I struck him because he had been a security guard, I mean, in his past. It is my feeling, based on experience that I have had with juries, that security guards are often individuals who were turned down at one time for being not qualified to be police officers and often have some checkered pasts. Also, security guards tend to have seen a great deal of crime and have kind of, I think, a jaundiced view and that is why I struck Mr. Simmons.
I would also like to add on to the record, I had a specific experience in Commonwealth vs. Hester, H-E-ST-E-R, before Judge Halbert, where I allowed a security guard to remain on the jury, and I felt after talking to him after the jury was complete and Judge Halbert was there talking to the jurors that the very nature of his job and his background coincides to make a very unfair juror and I felt that strongly.

We will not disturb the trial court’s finding that the Commonwealth gave a race-neutral explanation for striking those potential jurors who were, or who had relatives who were, security guards. A prosecutor’s peremptory strike explanation need not rise to the level justifying a challenge for cause. Batson v. Kentucky, supra at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88. Here, the trial court judge, who heard the questioning of the potential jurors, the voir dire objections and the explanations of counsel, could properly find that the Commonwealth sincerely believed that those associated with the security guard profession would be biased jurors, resentful and critical of the criminal justice system.

As to another peremptory strike, the Commonwealth stated:

I struck Mr. Pinckney particularly because I felt his hand mannerism was extremely odd. When Your Honor was speaking to him as well as counsel and myself, he didn’t use eye contact and he was using his hands to cover his mouth and head. I felt that was very—I don’t now [sic] how to describe it, but he was not being forthright because of his body language and I felt very uncomfortable while I was watching him answer questions. And that was my essential feeling about him. I felt, also, that he had retired a very long time ago and that he was out of the world in a sense and was not part of what was going on around him. He was rather retired at a very young age, and I thought had not been part of the world for a while. So, I felt very uncomfortable with those two items.

Certainly, the Commonwealth’s belief that a potential juror has been disingenuous and has been detached from the outside world for a prolonged period of time is a legitimate, race-neutral reason for excluding the juror peremptorily. We conclude, therefore, that the trial court did not abuse its discretion when it denied appellant’s objection to this challenge.

Another potential juror was struck peremptorily by the Commonwealth because of his lack of experience with young children. The Commonwealth explained:

I specifically asked Mr. Curry, number one, if he had any brothers or sisters, and he said no. He has no children. He lives with his mother. I felt he had absolutely no children contact and as a result I didn’t feel it was appropriate for him to sit on the jury. Plus, he is very young. Older people, even if they don’t have kids, often have had more contact with children and I felt he wouldn’t be able to really listen to a child with an intelligent view toward the child. I also felt his work history had been somewhat limited. However, I think the main thing was I felt he didn’t have any contact with children.

Counsel then entered into the following exchange:

MR. MATTHEWS [defense counsel]: Judge, juror number nine, who is now being moved in as juror number three, her number is juror number two six seven, has no children. She lives alone in Center City, has lived there for the last seven years, has limited contact with children, and the main difference is that she is a white woman, and juror number eighty-six is a black male. Judge, the thing that Batsun [sic] requires by the Commonwealth is that if they are called to put forth reasons why, and they have not asked during voir dire, that is the purpose of voir dire.
[The prosecutor] did not even ask juror number eighty-six whether or not he had a relationship or contact with children. She asked him if he had any brothers or sisters. She asked him whether or not—-who he lived with, and he said his mother. That is no basis to say that he has no contact with children.
MS. PERLIS [prosecutor]: He said he had no contact with children.
As to two sixty-seven, as I recall, I remember going through a great deal of questioning in my mind which was then questioned by this other counsel as to whether she babysat for nieces and nephews and she said yes and she said that one at a time was enough. So, I felt she had enough children contact, plus she was a nurse. Those two things together made her a good juror.
MR. MATTHEWS: She said she came into no contact with children in nursing. I specifically asked her if she had contact with children because I wanted to know that. That opportunity was offered or made available to the Commonwealth for juror number one eighty-six and she did not follow up on that.

In a case involving child sexual abuse, knowledge and familiarity with children may be a relevant quality, important to the matter at hand. The record supports the Commonwealth’s contention that this potential juror had little contact with children and, because of his age, had less time to develop an understanding of them. The trial court did not abuse its discretion when it allowed the Commonwealth to remove the juror.

Lastly, the Commonwealth struck two jurors because of their past involvement with the criminal justice system. Appellant concedes that the first of these challenges was proper. It involved a black woman whose only son had been convicted of crime and was serving a sentence of incarceration. She had, in fact, expressed unhappiness about her son’s case. The challenge, therefore, was proper.

The second of these challenges was also proper. In this instance, the Commonwealth made use of a peremptory strike to exclude a black venireman because his close friend had been accused of rape. The venireman expressed the belief that the accuser had lied in his friend’s case and that he considered child accusers to be unbelievable as well. The reason given for refusing to allow this juror to sit in a child sex abuse case was both legitimate and race-neutral.

It is apparent, therefore, that the record demonstrates race-neutral, legitimate reasons for the Commonwealth to challenge these black persons by peremptory challenges. The trial court properly exercised its discretion when it denied appellant’s objections thereto.

The judgment of sentence is affirmed.

      . Although appellant is white, he has standing to challenge the exclusion of blacks from his jury. See Powers v. Ohio, — U.S.-,-, 111 S.Ct. 1364, 1373, 113 L.Ed.2d 411, 429 (1991).