author:
      KELLY, Judge:
      CIRILLO, President BROSKY, Judge,

text:
    525 A.2d 788
    ESTATE OF Sandra L. OSBORNE, Deceased. Appeal of Margaret FAULKNER.
    Superior Court of Pennsylvania.
    Argued May 12, 1986.
    Filed May 12, 1987.

      M. Maley Peterson, Philadelphia, for appellant.
    Before CERILLO, President Judge, and CAVANAUGH, McEWEN, BROSKY, DEL SOLE, BECK, TAMILIA, KELLY and JOHNSON, JJ.
   KELLY, Judge:

In this case of first impression, we are called upon to determine whether the Orphans’ Court division of the Courts of Common Pleas may direct the Register of Wills to issue letters of administration to an individual selected by the Orphans’ Court. We hold that, upon finding that the Register abused its discretion in choosing an administrator, the Orphans' Court may determine the proper individual to act as administrator, and direct the Register to issue letters of administration to that individual.

This case involves an appeal from an Order directing the Register of Wills to revoke a previous grant of letters of administration and to issue letters to the Dauphin Deposit Bank and Trust Company (Bank). Appellant argues that the power to select an administrator lies within the exclusive jurisdiction of the Register, and that the court was without jurisdiction to direct the Register to issue letters to an individual selected by the court. Alternatively, she contends that the court erred in its choice of the trust company as the new administrator; in appellant’s view, she should have been chosen. We disagree with appellant’s contentions, and hold that the court below acted within its power in directing the issuance of letters of administration to a particular party. Further, we find that the court below did not abuse its discretion in ordering the issuance of letters to the Bank. Accordingly, we affirm.

The decedent, Sandra Osborne, was divorced from her husband, appellee Leroy Osborne. She died intestate on June 16, 1984. Upon Sandra’s death, however, Leroy applied to the Register of Wills for letters of administration for Sandra’s estate. The Register granted Leroy’s application. Appellant, Sandra’s mother, petitioned the Orphans’ Court division of the Court of Common Pleas to revoke the letters issued to Leroy. After a hearing on this issue, the court directed the Register to revoke the letters. The court further ordered the Register to issue letters of administration to the Bank as a neutral third party. Appellant does not challenge the revocation of the letters from Leroy Osborne; she had requested the revocation. Instead, she appeals the portion of the order which issues the letters of administration to the Bank.

In order to more readily understand the issues presented in this case, it is necessary to review the applicable statutes and the routine procedures pertaining to the issuance of letters of administration. The jurisdiction of both the Register of Wills and the Orphans’ Court division of the Courts of Common Pleas is outlined in Title 20, entitled Decedents, Estates and Fiduciaries. Section 711 of Title 20, governing the “[mjandatory exercise of jurisdiction through orphans’ court division in general,” provides in pertinent part:

... [T]he jurisdiction of the court of common pleas over the following shall be exercised through its orphans’ court division:
******
(12) Fiduciaries. The appointment, control, settlement of the accounts of, removal and discharge of, and allowance to and allocation of compensation among, all fiduciaries of estates and trusts, jurisdiction of which is exercised through the Orphans’ Court division, except that the register shall continue to grant letters testamentary and of administration to personal representatives as heretofore.

(Emphasis added). Regarding the jurisdiction of the Register of Wills, 20 Pa.C.S.A. § 901 provides:

Within the county for which he has been elected or appointed, the register shall have jurisdiction of the probate of wills, the grant of letters to a personal representative, and any other matter as provided by law.

(Emphasis added).

Under typical procedure, an application is submitted to the Register requesting the grant of letters of administration. The order of priority for individuals entitled to a grant of letters is set forth by statute. 20 Pa.C.S.A. § 3155 states in relevant part:

§ 3155. Persons entitled
(b) Letters of administration. — Letters of administration shall be granted by the register, in such form as the case shall require to one or more of those hereinafter mentioned and, except for good cause, in the following order:
(1) Those entitled to the residuary estate under the will.
(2) The surviving spouse.
(3) Those entitled under the intestate law as the register, in his discretion, shall judge will best administer the estate, giving preference, however, according to the sizes of the shares of those in this class.
(4) The principal creditors of the decedent at the time of his death.
(5) Other fit persons.
(6) If anyone of the foregoing shall renounce his right to letters of administration, the register, in his discretion, may appoint a nominee of the person so renouncing in preference to the persons set forth in any succeeding clause.

(Emphasis added).

When an interested party wishes to object to the grant of letters to the petitioner, he may file a caveat. 20 Pa.C.S.A. § 907 provides:

§ 907. Certification of records to court
Whenever a caveat shall be filed or a dispute shall rise before the register concerning ... the grant of letters ... he may certify, or the court upon petition of any party in interest may direct the register at any stage of the proceedings to certify, the entire record to the court, which shall proceed to a determination of the issue in dispute.

(Emphasis added). Thus, when a dispute arises regarding the Register’s choice for the grant of letters, an interested party may either file a caveat with the Register or petition the Orphans’ Court division for the matter to be transferred to the Orphans’ Court for resolution.

Alternatively, an aggrieved party may appeal the Register’s decision to the Orphans’ Court division of the Court of Common Pleas. 20 Pa.C.S.A. § 908 provides in pertinent part:

§ 908. Appeals
(a) When allowed. — Any party in interest who is aggrieved by a decree of the register, or a fiduciary whose estate or trust is so aggrieved, may appeal therefrom to the court within one year of the decree ...

Upon the filing of an appeal, and after entry of security, the Register normally transmits the record to the Orphans’ Court. There, a petition is presented on the motion list for the award of a citation, directing all parties in interest to show cause why the appeal should not be sustained and the decree of the Register set aside. See 1 Remick’s Orphans’ Court Practice, § 4.06, 201 (1979).

The final relevant statutory provision, 20 Pa.C.S.A. § 3183, authorizes the Orphans’ Court division to consider revocation sua sponte of letters of administration previously granted by the Register. Section 3183 provides:

§ 3183. Procedure for and effect of removal
The court on its own motion may, and on the petition of any party in interest alleging adequate grounds for removal shall, order the personal representative to appear and show cause why he should not be removed, or, when necessary to protect the rights of creditors or parties in interest, may summarily remove him. Upon removal, the court may direct the grant of new letters testamentary or of administration by the register to the person entitled____ Any personal representative summarily removed under the provisions of this section may apply, by petition, to have the decree of removal vacated and to be reinstated, and, if the court shall vacate the decree of removal and reinstate him, it shall thereupon make any orders which may be appropriate to accomplish the reinstatement.

(Emphasis added).

Having recited the relevant statutory provisions and the procedure surrounding the granting of letters, we now consider the issues presented in the instant case.

I.

Appellant first contends that the Orphans' Court division acted beyond its jurisdiction in directing the Register to issue letters of administration to the Bank. Appellant concedes that, upon removal of the case to the Orphans’ Court division, the court had the authority to revoke the letters which were previously granted by the Register. According to appellant, however, after revoking the letters, the Orphans’ Court must remand the matter to the Register, who will then entertain new applications for letters of administration. Appellant claims that the selection of a proper administrator is within the exclusive jurisdiction of the Register of Wills. Although we agree that the original selection of an administrator is normally a task within the jurisdiction of the Register, we hold that, upon a finding by the Orphans’ Court that the Register has abused its discretion in the selection of the original administrator, the Orphans’ Court may review the evidence presented, revoke the letters, and direct the Register to issue letters to the individual whom the court finds to be entitled to administer the estate.

Appellant cites several sections of Title 20 in support of her contention that only the Register of Wills may select the individual to whom letters of administration shall be issued. Appellant first cites Section 901, supra, which states that “the register shall have jurisdiction of ... the grant of letters.” Appellant contends that the authority of the Register alone to select the individuals to whom letters of administration shall be issued is confirmed in Section 711(12), which defines the jurisdiction of the Orphans’ Court as including “[t]he appointment, ... removal, and discharge of ... all fiduciaries ..., except that the register shall continue to grant letters ... of administration.”

We agree that, as set forth by statute, the selection of the person to whom the initial grant of letters is to be made is normally within the exclusive province of the Register. Upon review of the statutes pertaining to removal of the case to the Orphans’ Court, however, we conclude that the court may, upon such removal, review the evidence to determine whether the Register abused its discretion, and if necessary, revoke the letters and direct the Register to issue letters to the individual whom the court finds is entitled. Two sections of Title 20 lead us to this conclusion. First, Section 907, supra, states that whenever a dispute arises before the Register concerning the grant of letters, either the Register or the court may certify the “entire record to the court, which shall proceed to a determination of the issue in dispute.” No language of limitation is used to describe the authority of the Orphans’ Court upon removal of the case from the Register; rather, the statute refers generally to “a dispute” regarding the grant of letters and allows the Orphans’ Court to determine “the issue in dispute.”

The second statute which leads us to conclude that the court may determine the individual who is entitled to the grant of letters is 20 Pa.C.S.A. § 3183, set forth supra. Section 3183, entitled “Procedure for and effect of removal,” states that “[u]pon removal, the court may direct the grant of new letters ... by the Register to the person entitled.” Appellant contends that this section authorizes the Orphans’ Court division to direct the Register to remove a personal representative and to grant new letters of administration to the individual whom the Register determines is entitled. We disagree with this construction of the statute.

The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the legislature. Young v. Young, 507 Pa. 40, 488 A.2d 264 (1985); Patton v. Republic Steel Corp., 342 Pa.Super. 101, 492 A.2d 411 (1985); 1 Pa.C.S.A. § 1921(a). When the words of a statute are ambiguous or susceptible to more than one interpretation, the intention of the General Assembly may be ascertained by considering the object to be obtained by a statute and the consequences of a particular interpretation; the court must presume that the legislature does not intend a result that is absurd or unreasonable. Zimmerman v. O’Bannon, 497 Pa. 551, 556, 442 A.2d 674, 677 (1982); Goodman v. Kennedy, 459 Pa. 313, 328, 329 A.2d 224, 232 (1974); Fireman’s Fund Ins. v. Nationwide Mut. Ins., 317 Pa.Super. 497, 502, 464 A.2d 431, 434 (1983); 1 Pa.C.S.A. §§ 1921(c)(6), 1922(1).

The statute in question, 20 Pa.C.S.A. § 3183, is certainly not free from ambiguity; the words “the court may direct the grant of new letters by the Register to the person entitled” may be interpreted as permitting the court to direct the Register to issue letters to either the person whom the Register finds to be entitled or to the person whom the court finds to be entitled. We find that the obvious purpose of the section is to provide a higher forum for resolution of disputes arising from the grant of letters; this forum shall determine whether error has been committed by the Register in its grant of letters. Following appellant’s reasoning, the court, after gathering all the evidence and concluding that the Register erred in its choice of administrator, would have the power only to revoke the letters, and would then be required to remand the matter back to the Register. The Register would then reconsider the application, re-gather the evidence, and choose another administrator. We cannot agree that the legislature would intend such an unreasonable result; such a circular procedure would involve a needless waste of judicial and administrative time and expense. We therefore reject appellant’s contention in favor of the more reasonable construction. See e.g. Yeager Unemployment Compensation Case, 196 Pa.Super. 162, 172, 173 A.2d 802, 807 (1961) (proposed construction of statute rejected because “it would create an insurmountable administrative obstacle....”).

The conclusion which we reach today — that upon removal of the case to the Orphans’ Court division, the court may direct the Register to issue letters of administration to the individual whom the court finds entitled — is in accordance with construction given the predecessors to the statutes at issue in the instant case. In In Re Neidig, 183 Pa. 492, 38 A. 1033 (1898), the Register of Wills issued letters of administration to an individual who was nominated by the alleged next-of-kin of the decedent. The actual next-of-kin then petitioned to have the letters revoked and issued to their nominee. The Orphans’ Court division considered the question and found that the Register had erred; the court revoked the previously issued letters and directed the Register to issue letters to the nominee of the next-of-kin. On appeal, the Supreme Court affirmed, stating:

... [T]he learned judge found the facts as now conceded to be correct, viz: ‘That the Ocker family are the next of kin, and the letters issued to Mr. Rupley were improvidently granted.’ etc., and he accordingly vacated said letters. He might have stopped there and left to the register of mils the granting of letters to one or more of the next of kin, but clearly he was not bound to do so. It was doubtless evident to him, as it is to us, that the questions that might again arise before that officer had not only been prejudged, but were erroneously decided by him. Owing to the manner in which the case appears to have been heard and disposed of by the register, those questions were brought before the court below. It was therefore entirely proper to incorporate in the decree the order that letters be issued by the register to the nominee of the next of kin, etc.

(Emphasis added). 183 Pa. at 498, 38 A. 1033.

In Padelford’s Estate, 189 Pa. 634, 42 A. 287 (1899), the Register had rejected the three claimants and selected a disinterested party for the grant of letters of administration d.b.n.c.t.a. One of the claimants then appealed to the Orphans’ Court division of the Philadelphia County Court of Common Pleas. The Orphans’ Court found that the Register had erred in its choice of administrator; the court reversed the Register and directed that letters be issued to a bank. On appeal, the Pennsylvania Supreme Court affirmed, stating:

The power of the orphans’ court to correct such errors of the register by vacating the letters granted by him and directing him to issue letters to another cannot be doubted.

189 Pa. at 738, 42 A. 287. Several more recent common pleas cases are in accord. See e.g. In Re Estate of Mullen, 120 P.L.J. 320 (1972); Kiker Estate, 10 Pa. D & C 2d 674 (1957). Thus, we conclude that the Orphans’ Court had the authority, upon finding that the Register abused its discretion in its choice of administrator, to revoke the letters of administration and direct the Register to issue letters to the proper individual.

II.

Appellant alternatively claims that, even if the court had the authority to choose an administrator, the court erred in directing the Register to issue letters of administration to the Bank; appellant believes that she should have been chosen.

The Register initially granted the application of the decedent’s ex-husband, Leroy Osborne. The appellant, who is the mother of the decedent, then attempted to file a petition for revocation with the Register; the Register directed her to file the petition with the Orphans’ Court. In considering whether the letters of administration previously granted to Leroy Osborne should be revoked, the court took notice of the marital settlement agreement entered between the decedent and Osborne. Paragraph 11 of the agreement provided in part:

11. Husband does hereby remise, release, quitclaim, and forever discharge Wife, or the estate of Wife, from any and every claim ..., whether arising out of any formal contract, ... or under the Intestate Laws or the right to take against the Wife’s Will____

The agreement was incorporated by reference into the divorce decree, which was not challenged. Based upon this agreement and the fact that Osborne owed support arrears payable to the estate of the decedent, the Orphans’ Court concluded that he was not a proper choice to stand in a fiduciary position as administrator of the estate. See In Re Estate of Dobson, 490 Pa. 476, 417 A.2d 138 (1980); Rafferty Estate, 377 Pa. 304, 105 A.2d 147 (1954).

The statutory provision for the order of priority in choosing an administrator is 20 Pa.C.S.A. § 3155(b), set forth in full, supra. The relevant portion of that section provides, that, except for good cause, letters of administration are to be granted in the following order:

* * * * * *
(3) Those entitled under the intestate law as the register, in his discretion, shall judge will best administer the estate, giving preference, however, according to the sizes of the shares of those in this class.
(4) The principal creditors of the decedent at the time of his death.
(5) Other fit persons.

Under the intestacy laws, the entire estate will pass in equal parts to the two children of the decedent. See 20 Pa.C.S.A. § 2103. Thus, the appellant, who is not entitled under the intestate law to any portion of the estate, falls into the fifth category, “other fit persons,” along with the Bank. With this observation in mind, we must determine whether the court erred in choosing the Bank to act as administrator rather than appellant.

In Schulz Estate, 392 Pa. 117, 122, 139 A.2d 560, 562-3 (1958), our Supreme Court stated:

Antagonism and unfriendly feelings between the applicant for letters of administration and other members of the class may be sufficient to constitute a disqualification. In Friese’s Estate, 317 Pa. 86, 89, 90, 176 A. 225, we said: Tn addition to the fact that she is required to have an actual interest in the estate, she may be further disqualified by being unfit to administer. Among these disqualifications are insolvency, non-residence, conviction of crime, claim of interest hostile to the estate, unfriendly feeling between the parties, dissatisfaction and antagonism between the widow and the children.... See also Warner’s Estate, 207 Pa. 580, 584, 57 A. 35; Levan’s Appeal, 112 Pa. 294, 298, 3 A. 804; Hassinger’s Appeal, 10 Pa. 454; Ellmaker’s Estate, 4 Watts 34; Welch’s Appeal, 1 Pennypacker 9.’

(Emphasis in original). See also Rafferty Estate, 377 Pa. 304, 306, 105 A.2d 147, 148 (1954) (“[t]he personal interest of a fiduciary being in conflict with that of the estate and the unfriendly feelings between the heirs constitute sufficient cause for removal” of an administrator).

In Schulz Estate, supra, the Register issued letters of administration d.b.n.c.ta. to a disinterested party, denying the petitions of the potential heirs. One of the petitioners appealed, and the Supreme Court affirmed:

The Register, in appointing C.F. Witmer, a stranger, recognized that the appellant was clearly antagonistic to and on an unfriendly basis with the appellees, and vice versa. This antagonism has been the source of the extensive litigation between the parties and clearly constitutes a disqualification under the circumstances not only of appellant but also of the entire class of residuary legatees, all of whom have taken part in some manner or other in such litigation. Appellant’s argument that such antagonism has not been shown is without merit. The entire record of this estate, including the record before the various courts, was admitted into evidence and, even if it were not, we could take judicial notice thereof. Appellant’s antagonism and unfriendly feelings toward appellees clearly disqualified her for appointment as the administrator.

392 Pa. at 122-123, 139 A.2d at 563.

In the instant case, the court below concluded that, “[r]eal or fancied, there is considerable tension between the decedent’s mother and the appointed administrator.” (Lower court opinion at 3). In reaching this conclusion, the court considered the fact that appellant retained custody of her grandchildren after her daughter’s death until the court awarded custody to Osborne, the natural father. Furthermore, the record shows that appellant filed a motion for preliminary injunction in an unsuccessful attempt to prevent the distribution of certain life insurance proceeds to Osborne. The antagonism between Osborne, who is the guardian of the decedent’s children, and the appellant, which is evidenced by the past litigation, clearly disqualified appellant from acting as administrator. The lower court therefore properly selected the Bank, a competent and disinterested party, to act as administrator of the estate.

Accordingly, the order directing the Register to issue letters of administration to the Dauphin Deposit Bank and Trust Company is affirmed.

CIRILLO, President Judge, files a dissenting opinion in which DEL SOLE, J., joins.

BROSKY, J., files a dissenting opinion.

CIRILLO, President

Judge, dissenting:

I respectfully dissent.

The Register of Wills has the statutorily granted power to determine who may properly receive letters of administration. There is no legal justification, statutory or otherwise, for the courts to usurp this power. The majority’s contrary conclusion compels me to dissent.

As the majority recognizes, 20 Pa.C.S. § 901 provides that “The register shall have jurisdiction of ... the grant of letters____” Moreover, 20 Pa.C.S. § 711(12) defines the jurisdiction of the Orphans’ Court as including “[t]he appointment, removal, and discharge of ... all fiduciaries of estates ... except that the register shall continue to grant letters testamentary and of administration____” (emphasis added). As the basis for its decision, however, the majority relies on a misinterpretation of two separate statutes, 20 Pa.C.S. §§ 907 and 3183.

Section 907 provides that when a dispute arises before the register concerning the grant of letters, the register, or the court upon petition, may certify the entire record and then the court “shall proceed to a determination of the issue in dispute.” Section 3183 states that upon removal of a personal representative, “the court may direct the grant of new letters ... by the register to the person entitled____” In this case of first impression, the majority interprets these statutes to vest the courts with the authority to force the register to issue letters to the individual that the court deems worthy. This, the majority reasons, effectuates the intent of the legislature.

In my view, the reasonable intent of the legislature was to have the court remand the matter back to the register, if the court determined that the register erred in issuing letters to an administrator. This statutory construction would not, as the majority suggests, lead to an unnecessary waste of judicial resources. Conversely, remanding the matter would enable the register to perform his duties without the court encroaching upon the province of the register’s statutorily granted powers. It would require less time and expense for the court to allow the register to do his job, in accord with the court’s proceedings, as opposed to the court doing itself what the register is mandated to do.

The limited standard of review that applies to this case was enunciated by the Pennsylvania Supreme Court in Schulz Estate, 392 Pa. 117, 139 A.2d 560 (1958). After stating the law that the Register of Wills has the initial duty to grant letters of administration, our Supreme Court held that “[o]n appeal from his action judicial review is confined to a determination whether the Register of Wills has abused his discretion in the appointment of an administrator.” Schulz, 392 Pa. at 123, 139 A.2d at 563 (citing Phillip’s Estate, 293 Pa. 351, 143 A. 9 (1928); McMurray’s Estate, 256 Pa. 233, 100 A. 798 (1917)). See also Lizenkon Estate, 455 Pa. 604, 316 A.2d 894 (1974) (affirming trial court’s vacation of decree by register and authorizing register to entertain a petition for the appointment of a neutral administrator).

I recognize, as does the majority in footnote 9, that the issue now before us is not identical to the precise issue presented in Schulz. Nonetheless, a fair and reasonable reading of Schulz indicates that the limitations on judicial review promulgated in that case apply with equal force to support my position in the case now before us.

In sum, I think it was incorrect for the majority to expand the scope of judicial review and usurp the function of the Register of Wills. Accordingly, I cannot join the majority’s opinion.

DEL SOLE, J., joins.

BROSKY, Judge,

dissenting:

I am unable to join in the well-reasoned opinion of the majority because my examination of the record and the decisional law of this Commonwealth leads me to conclude that we have no appealable issues before us.

As I see it, the Order of October 23, 1984, is not a final order, and the final sentence therein so states that “[j]urisdiction is retained.” This implicates the filing of post-trial motions pursuant to Pa.R.C.P. 227.1 and the entry of a final order after disposition thereof. The record before us discloses the filing of no such motion or order.

Pa.R.C.P. 227.1 provides:

Rule 227.1. Post-Trial Relief
(a) After trial and upon the written Motion for Post-Trial Relief filed by any party, the court may
(1) order a new trial as to all or any of the issues; or
(2) direct the entry of judgment in favor of any party; or
(3) remove a nonsuit; or
(4) affirm, modify or change the decision or decree nisi; or
(5) enter any other appropriate order.
(b) Post-trial relief may not be granted unless the grounds therefor,
(1) if then available, were raised in pre-trial proceedings or by motion, objection, point for charge, request for findings of fact or conclusions of law, offer of proof or other appropriate method at trial; and
Note: If no objection is made, error which could have been corrected in pre-trial proceedings or during trial by timely objection may not constitute a ground for post-trial relief.
(2) are specified in the motion. The motion shall state how the grounds were asserted in pre-trial proceedings or at trial. Grounds not specified are deemed, waived unless leave is granted upon cause shown to specify additional grounds.
(c) Post-trial motions shall be filed within ten days after
(1) verdict, discharge of the jury because of inability to agree, or nonsuit in the case of a jury trial; or
(2) notice of nonsuit or the filing of the decision or adjudication in the case of a trial without jury or equity trial.
If a party has filed a timely post-trial motion, any other party may file a post-trial motion within ten days after the filing of the first post-trial motion.
(d) A motion for post-trial relief shall specify the relief requested and may request relief in the alternative. Separate reasons shall be set forth for each type of relief sought.
(e) If a new trial and the entry of judgment are sought in the alternative, the court shall dispose of both requests. If the court directs the entry of judgment, it shall also rule on the request for a new trial by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the request for a new trial.
(f) The party filing a post-trial motion shall serve a copy promptly upon every other party to the action and deliver a copy to the trial judge.

(Emphasis supplied).

Neither the instant record nor the docket entries before us indicate the filing of any post-trial motion. Thus, I would be constrained to find the issues addressed by the majority waived. Szakmeister v. Szakmeister, 344 Pa.Super. 465, 496 A.2d 1199 (1985); see also Hanik v. Pennsylvania Power Co., 308 Pa.Super. 352, 454 A.2d 572 (1982) (under former Pa.R.C.P. 1518, governing post-trial relief following an equity trial, rescinded and now replaced by present Rule 227.1, matters not addressed in exceptions [now post-trial motions under Rule 227.1] are deemed waived). Alternatively, I would be constrained to quash the instant appeal for lack of a final order in the instant record. Szakmeister, supra (appeal quashed where final order not entered on docket after failure to file post-trial motion).

I do not agree with the rationale set embraced by the majority in endnote 1 and reiterate my position that we have no appealable issues before us.

The majority’s reliance on Estate of Kotz, 486 Pa. 444, 406 A.2d 524 (1979), that Supreme Court Rule of Orphans’ Court 3.1, conforming equity practice to that of the local Court of Common Pleas, Pa.R.C.P. 1501, providing that equity proceedings shall follow the rules of procedure relating to civil actions, and Pa.R.C.P. 227.1, regarding post-trial relief, are not general rules applicable to the instant order in question is misplaced.

First, Kotz never mentions Pa.R.C.P. 1501, but, rather, it discusses Pa.R.C.P. 1518 which concerned post-trial relief following an equity proceeding. This Rule was rescinded effective January 1, 1984, and the note following indication of this rescission refers to Pa.R.C.P. 227.1, which Kotz, again, does not mention because the latter rule became effective after the decision in Kotz. Secondly, and more to the point of my disagreement with the majority, the order appealed from in Kotz was considered by that court to be a final appealable one, thus obviating the necessity for the filing of exceptions.

The majority, in endnote 1, states that Lebanon County Local Rule of Orphans’ Court 7.1 A does not, by its very terms, require the filing of exceptions to orders or decrees because no act of assembly, general rule or special order exists expressly conferring that right. Lebanon County Local Orphans’ Court Rule 7.1a provides:

No exceptions shall be filed to orders or decrees entered in proceedings unless the right to except thereto is expressly conferred by act of assembly, by general rule, or by special order of court, and decrees other than those to which exceptions are so allowed to be taken, shall be final and definitive.

(Emphasis supplied).

“General Rule” is defined in the Judicial Code (42 Pa.C. S.A. §§ 101 et seq.) as follows:

“General rule.” A rule or order promulgated by the governing authority.

42 Pa.C.S.A. § 102. In turn, the Judicial Code assigns the following definition to “Governing Authority:”

“Governing authority.”
(1) The Supreme Court; or
(2) any agency or unit of the unified judicial system exercising a power or performing a duty pursuant to section 1721 (relating to delegation of powers).

Id.

Section 1721 of the Judicial Code (42 Pa.C.S.A. § 1721), referred to above, empowers the Pennsylvania Supreme Court to delegate supervisory and administrative powers to any unit of the unified judicial system. This delegation authority is derived from Article V, Schedule § 1 of the Pennsylvania Constitution which, in turn, is rooted in the ancient King’s Bench Power. See 42 Pa.C.S.A. § 502. The unified judicial system includes the Court of Common Pleas of this Commonwealth. Pa. Const. art. V, § 1; 42 Pa.C.S.A. § 301(4). Administrative powers of a governing authority, which includes within the latter term the unified judicial system {see 42 Pa.C.S.A. § 102, supra, relating to definitions), encompass the power to prescribe and modify general rules for the “[p]ractice, procedure and conduct of all courts ... if such rules are consistent with the Constitution of Pennsylvania and neither abridge, enlarge nor modify the substantive rights of any litigant____” 42 Pa.C. S.A. § 1722(a)(1); Pa. Const, art. V, § 10(c).

Thus, the gravamen of my quarrel does not lie with the power of the various Common Pleas Courts to enact local rules of court. Rather, I question the majority’s interpretation of Local Rule 7.1A. Instantly, the majority interprets Local Orphans’ Court Rule 7.1A as disallowing the filing of exceptions because no statutes, general rules or orders exist otherwise to allow the filing of exceptions (Majority Op., pp. 203-204, n. 1). Such a reading of this rule would, in my view, exalt a local rule of Court over rules having statewide applicability in civil actions and issued pursuant to directive of the Pennsylvania Supreme Court.

Orphans’ Court Rule 7, adopted by Order of the Pennsylvania Supreme Court on November 24, 1975, effective January 1, 1976, provides:

Rule 7. Exceptions

7.1 Exceptions
Exceptions shall be filed at such place and time, shall be in such form, copies thereof served and disposition made thereof as local rules shall prescribe.

(Emphasis added).

I cannot glean, from my reading of this Rule of statewide applicability, any language which would permit a court of common pleas to adopt a local rule denying a litigant the right to file exceptions from non-final orders or decrees of that court. Rather, Rule 7 states that “[ejxceptions shall be filed ...” and leaves to the discretion of the common pleas court the procedure for filing and disposition thereof. It does not, as the majority contends in endnote 1, vest in a court of common pleas the discretion to consider whether or not the filing of exceptions shall be permitted to non-final Orphans’ Court orders and decrees. The interpretation cast upon Lebanon County Orphans’ Court Rule 7.1A by the majority would render it inconsistent with the directive of Article V, § 10(c) of the Pennsylvania Constitution and 42 Pa.C.S.A. § 1722(a)(1) that rules may be enacted by a governing authority only if such rules are consistent with the Constitution of Pennsylvania and with the Pennsylvania Rules of Civil Procedure, as well. Such inconsistent local rules are deemed invalid. Byard F. Brogan, Inc. v. Holmes Elec. Protective Co., 501 Pa. 234, 460 A.2d 1093 (1983); Sporkin v. Affinito, 326 Pa.Super. 481, 474 A.2d 343 (1984); Pa.R.C.P. 239(b) (“Local rules shall not be inconsistent with any general rule of the Supreme Court or any Act of Assembly.”; emphasis supplied); Supreme Court Rule of Orphans’ Court 1.2. The Comment following subsection (b) of Pa.R.C.P. 239 states that the language contained therein is in furtherance of the policy “that a general rule of civil procedure normally preempts the subject covered [by the local rule].”

Moreover, 42 Pa.C.S.A. § 323 grants the courts of this Commonwealth the power to adopt rules of court “except as otherwise prescribed by general rules....” This aforequoted phrase was interpreted by the Brogan court to require consistency of local rules of court with the Pennsylvania Rules of Civil Procedure. In this context, I note with interest the qualifying language in Lebanon County Orphans’ Court Rule 7.1A which states that the filing of exceptions is permissible if the right is expressly conferred by general rule, etc., to be essentially identical in import and meaning with the exception carved out in § 323’s grant of authority to courts to adopt local rules.

Thus, applying the rationale of the Brogan court to the instant matter, I would conclude, unlike the majority here, that the qualifying language in Lebanon County Orphans Court Rule 7.1 A, supra, directs the filing of exceptions and, in so doing, defers to a higher promulgating authority of general rules of civil procedure, specifically, the Pennsylvania Supreme Court’s adoption of Pa.R.C.P. 227.1, supra, regarding the filing of post-trial motions, Supreme Court Rule of Orphans’ Court 7, providing for the filing of exceptions to non-final orders and decrees of the Orphans’ Court, and Supreme Court Rule of Orphans Court 3.1, conforming local Orphans’ Court procedure to equity practice. To read Lebanon County Orphans’ Court Rule 7.1 A in any other light would, in my view, render that rule inconsistent with the Pennsylvania Rules of Civil Procedure, Byard F. Brogan, Inc., supra; Sporkin v. Affinito, supra, the Pennsylvania Constitution, art. V, § 10(c), supra, and 42 Pa.C.S.A. § 1722(a)(1), supra.

      . The appellant properly filed a direct appeal to this Court without first filing exceptions in the court below. Rule 7.1 of the Pennsylvania Orphans’ Court Rules, entitled "Exceptions,” provides that exceptions shall be filed as local rules prescribe. The applicable Lebanon County Local Rule, Orphans’ Court Rule 7.1 A provides:

        No exceptions shall be filed to orders or decrees entered in proceedings unless the right to except thereto is expressly conferred by act of assembly, by general rule, or by special order; and all decrees other than those to which exceptions are so allowed to be taken, shall be final and definitive.
      (Emphasis added). No special statutes, general rules of court or special orders exist which confer the right to file exceptions to an order appointing an administrator; thus, the appellant acted properly in filing a direct appeal. In Estate of Kotz, 486 Pa. 444, 406 A.2d 524 (1979), our Supreme Court construed a local rule which is virtually identical to Lebanon County Local Rule 7.1 A. The court held that neither Pennsylvania Orphans’ Court Rule 3.1 ("Except where otherwise provided ... the pleading and practice [in Orphans’ Court] shall conform to the pleading and practice in equity in the local court of Common Pleas”) nor Pennsylvania Rules of Civil Procedure 1501 (equity practice shall conform to procedures in civil actions) and 1518 (precursor of Pa.R.Civ.P. 227.1 which provided that, in civil proceedings, issues not raised in exceptions are waived if no exceptions are filed) are "general rules” applicable to the type of order appealed from; the court observed that to require filing of post-trial motions in such a case would frustrate the Supreme Court’s mandate in Orphans’ Court Rule 3.1 that local rules should govern Orphans’ Court matters. As the applicable local rule in the instant case states that exceptions shall not normally be filed to orders entered by the Orphans’ Court, the appellants acted correctly in filing a direct appeal.
      The dissent authored by my learned brother Brosky points out that the final sentence of the order appealed from states, "[¡Jurisdiction is retained." According to the dissent, this statement demonstrates that the trial court anticipated the filing of exceptions before entry of a final, appealable order. I disagree with this reasoning. The orphans’ court may have intended to retain supervisory powers over any future problems which might arise in the administration of the estate. Furthermore, even if the lower court does anticipate the filing of exceptions, I would not deem this fact dispositive of the question whether exceptions should properly or necessarily be filed in a given case.

      . For the reasons set forth in Part II, supra, the Orphans’ Court found that the Register abused its discretion in issuing letters of administration to Osborne. Neither appellant nor appellee have appealed from the order revoking the letters issued to Osborne.

      . 20 Pa.C.S.A. § 908(b) provides that "[t]he court ... may require a surety bond to be filed by anyone appealing from a decree of the register conditioned for the payment of any costs or charges that may be decreed against him.”

      . Although the procedure employed for removal of the case to the Orphans’ Court was not the normal procedure envisioned by the statute, we do not believe that this procedural irregularity is of any great importance. Appellant states that when she attempted to file her petition for revocation of letters with the Register, she was directed to proceed to the Orphans’ Court. She then filed her petition and rule with the Orphans’ Court, requesting that the letters issued to Osborne be revoked and that she be appointed administrator. It does not appear that the record was at any time formally certified by the Register to the Orphans’ Court. However, the procedure followed was substantially similar to that which is authorized by 20 Pa.C.S.A. § 907, set forth supra, allowing the Register to transfer a case to the Orphans’ Court when a caveat is filed or a dispute arises regarding the grant of letters.

      . See 20 Pa.C.S.A. § 3183, supra.

      . Under the procedure set forth in 20 Pa.C.S.A. § 907, supra, it is conceivable that the Register could certify a case to the Orphans’ Court when a dispute arises, without first granting letters of administration. In such a case, the Orphans’ Court would be in the position of directing the initial grant of letters of administration. We do not today determine whether the Orphans’ Court would be acting within its power under those circumstances.

      . Letters of administration are defined as a "formal document issued by probate court appointing one an administrator of an estate.” Black’s Law Dictionary 814 (5th ed. 1979). Letters of administration d.b.n.c.ta. ("de bonis non cum testamento annexo”) are defined by Black’s as a “document issued by a probate court to one who is thereby authorized to administer estate in place of named executor in accordance with will of testator.” Id; see also T. Atkinson, Handbook of the Law of Wills, at 5 (2d ed. 1953).

      . Although the Supreme Court in In Re Neidig and Padelford's Estate, supra, construed an early predecessor of the current statute (Act, 1832 March 15, P.L. 135, repealed in part by the Register of Wills Act of 1917, Act 191, P.L. 415), the reasoning applied in these cases is equally persuasive in interpretation of the current statute.

      . Schulz Estate, 392 Pa. 117, 139 A.2d 560 (1958), cited by appellant, is not inconsistent with our holding today. The Supreme Court in Schulz stated:
      The statute commits to the Register of Wills, in the first instance, the duty to grant letters of administration and in the performance of that duty the Register acts in a judicial capacity.
      (Emphasis added). 392 Pa. at 123, 139 A.2d at 563. Appellant points out that the Schulz Court went on to state that "[o]n appeal from his [the Register of Wills] action judicial review is confined to a determination whether the Register of Wills has abused his discretion in the appointment of an administrator.” Schulz, 392 Pa. at 123, 139 A.2d at 563. However, the Court in Schulz was not addressing the issue which is now before us: whether, upon finding that the Register has erred in its choice of administrator, the Orphans’ Court may set aside the appointment and direct the issuance of letters to the qualified individual. Instead, the Schulz Court utilized this language in setting forth the often-stated standard of review which must be followed when reviewing an action of the Register of Wills. For appellant to take this statement out of context is absurd: certainly, even appellant would concede that the statute clearly authorizes the Orphans’ Court to take certain affirmative actions upon determining that the Register erred in its choice of administrator. See e.g. 20 Pa.C.S.A. § 3183, set forth supra. (The court ... may ... summarily remove him [the personal representative]).

      . In her brief, appellant raises a third issue: "Should the Register of Wills have given notice to and secured a renunciation from [appellant] before granting letters of administration to the decedent’s ex-husband?” Appellant claims that the Register acted improperly when he granted letters of administration without notice to appellant, and that as a result, appellant was unable to make application for letters. Even if the Register in fact failed to give notice to appellant, we fail to see how appellant was prejudiced. In her petition seeking revocation of the letters issued to Osborne, appellant requested that the Orphans’ Court appoint her as administrator. The court considered and properly rejected this request, as discussed infra.

      . Both the custody petition and the motion for preliminary injunction were made a part of the official record in the case at bar.

      . See generally Walsh v. Tate, 444 Pa. 229, 237-38, 282 A.2d 284, 288 (1971) (discussing 1968 amendment to Pennsylvania Constitution removing constitutional status formerly accorded the Philadelphia Register of Wills).

      . Although the appeal was filed from the order of October 3, 1984, that order was subsequently amended on October 23, 1984, to reflect the reference to the administrator-bank as “Administrator D.B.N.” In all other respects, the order of October 23,1984, is the same as the one entered October 3, 1984, and the appeal was docketed well within the 30-day period allowed from October 23, 1984.

      . Throughout this dissent, I refer to "exceptions" because the Rules which I discuss employ that terminology. That term, of course, is now embraced in the phrase “post-trial relief.” See Pa.R.C.P. 227.1, supra.

      . It seems evident that the need for this qualifying language would be obviated if the intent of the drafters of Lebanon County Local Orphans’ Court Rule 7.1A were to disallow the filing of exceptions. Since I conclude in my discussion, supra in text, that this disallowance is constitutionally and legislatively impermissible, this language is necessary to bring the Rule in conformity with the law of this Commonwealth.

      . This Rule provides:
      1.2. Local Rules
      The Orphans’ Court of the several judicial districts of this Commonwealth may adopt local rules regulating practice and procedure, but such rules shall not be inconsistent with any rule adopted by the Supreme Court of this Commonwealth or any Act of Assembly regulating the practice and procedure in the Orphans' Courts of this Commonwealth.

      (Emphasis supplied).


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
      525 A.2d 801
    In re Adoption by Eric G. SHIVES and Linda S. Shives. Appeal of Harry G. PECK, Father of Alan G. Peck.
    Superior Court of Pennsylvania.
    Argued Feb. 19, 1987.
    Filed May 12, 1987.

      Dewayne T. Newman, Everett, for appellant.
    James M. Schall, McConnellsburg, for Shives, appellees.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   WIEAND, Judge:

This is an appeal from an order which, at the request of a divorced mother, terminated the parental rights of the natural father, thus making it possible for the mother’s second husband to adopt the child.

Linda S. Shives, mother and appellee herein, and Harry G. Peck, father-appellant, were divorced in 1983. Alan Peck, who had been born of the marriage on September 27, 1980, resided with his mother, to whom custody had been awarded as part of the divorce decree. An agreement between the parties provided that Harry Peck could visit his son only at the mother’s residence until Alan attained the age of five years. In May, 1984, Linda married Eric Shives, and the new marriage partners, together with Alan, took up residence in Harrisonville, Fulton County, Pennsylvania. Father continued to pay support for his son, in the amount of thirty-three ($33) dollars per month, until April 19, 1985, when mother declined to accept further support. However, father has had no personal or physical contact with his son since September 27, 1983, the date of Alan’s third birthday.

On November 21, 1985, mother filed a petition, pursuant to the Adoption Act, 23 Pa.C.S. § 2101 et seq., to terminate involuntarily father’s parental rights. A hearing was held on January 1, 1986, at which time the Orphans’ Court determined that for a period of six (6) months father had failed to perform parental duties and had evidenced a settled purpose to relinquish his parental claim to Alan. The court's decision to terminate involuntarily father’s parental rights was based upon a finding that the father had failed to make reasonable efforts either to contact his son or to maintain a parent-child relationship for a period in excess of that provided by the statute. From the order terminating his parental rights, father appealed. His principal arguments are that (1) mother-appellee acted by design to prevent his maintaining á relationship with his son in order to effect a termination of his parental rights; and (2) the absence of visitation, in view of the continued support which he contributed to his son, did not alone warrant a termination of his parental rights.

Parental rights may be terminated if a “parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.” 23 Pa.C.S. § 2511(a)(1). A “court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child.” 23 Pa.C.S. § 2511(b).

Parental rights may not be terminated in the absence of evidence which is clear and convincing. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). See: In re T.R., 502 Pa. 165, 166, 465 A.2d 642, 642-643 (1983); In re K.L.P., 354 Pa.Super. 241, 246, 511 A.2d 852, 854 (1986); In re Adoption of Hutchins, 326 Pa.Super. 276, 279, 473 A.2d 1089, 1091 (1984); In re Adoption of Sabrina, 325 Pa.Super. 17, 22, 472 A.2d 624, 626 (1984); In re Adoption of Ostrowski, 324 Pa.Super. 216, 218-219, 471 A.2d 541, 542 (1984); 25 Std.Pa.Prac.2d § 126:598. This principle requires evidence which is “so clear, direct, weighty, and convincing as to enable the [factfinder] to come to a clear conviction without hesitancy, of the truth of the precise facts in issue.” In re Adoption of James J., 332 Pa.Super. 486, 493, 481 A.2d 892, 896 (1984).

Our scope of review in a termination case is limited to a determination of whether the decision to terminate is supported by competent evidence. In re Adoption of Faith M., 509 Pa. 238, 240, 501 A.2d 1105, 1106 (1985); In re Adoption of N.A.G., 324 Pa.Super. 345, 348, 471 A.2d 871, 873 (1984) . Absent an abuse of discretion, an error of law or insufficient evidentiary support for the findings of the Orphans’ Court, an appellate court will not reverse a hearing court’s order to terminate. In re Adoption of G.T.M., 506 Pa. 44, 46, 483 A.2d 1355, 1356 (1984); In re Stickler, 356 Pa.Super. 56, 58, 514 A.2d 140, 141 (1986); In re Baby Boy Allen, 337 Pa.Super. 133, 135, 486 A.2d 517, 518 (1984); Lookabill v. Moreland, 336 Pa.Super. 520, 523, 485 A.2d 1204, 1205 (1984).

In In re Burns, 474 Pa. 615, 379 A.2d 535 (1977), the Supreme Court stated:

There is no simple or easy definition of parental duties. Parental duty is best understood in relation to the needs of a child. A child needs love, protection, guidance, and support. These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child. Thus, this court has held that the parental obligation is a positive duty which requires affirmative performance.
This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child.
Because a child needs more than a benefactor, parental duty requires that a parent ‘exert himself to take and maintain a place of importance in the child’s life’.

Id., 474 Pa. at 624-625, 379 A.2d at 540 (citations omitted). In re Stickler, supra, 356 Pa.Superior Ct. at 59-60, 514 A.2d at 142; In re Adoption of Baby Boy J., 354 Pa.Super. 575, 579, 512 A.2d 689, 692 (1986); In re Adoption of Hutchins, supra; In re Adoption of N.A.G., supra 324 Pa.Super. at 349, 471 A.2d at 874; 25 Std.Pa.Prac.2d § 126:599. Therefore, it is not enough to contribute to the support of a child as required by court order. A parent is required to exert a sincere and genuine effort to maintain a parent-child relationship; the parent must use all available resources to preserve the parental relationship and must exercise “reasonable firmness” in resisting obstacles placed in the path of maintaining the parent-child relationship. In re J.L.Z., 492 Pa. 7, 10, 421 A.2d 1064, 1065 (1980); In re Baby Boy P., 333 Pa.Super. 462, 469, 482.A.2d 660, 664 (1984).

The law recognizes, however, that there are situations in which a custodial parent has deliberately created obstacles and has by devious means erected barriers intended to impede free communication and regular association between a noncustodial parent and his or her child. Therefore, it is incumbent upon a court, before it terminates the rights of a noncustodial parent, to consider carefully the noncustodial parent’s explanation, if any, for his or her apparent neglect. Only where the totality of the circumstances demonstrates clearly and convincingly that a parent has refused or failed to perform parental duties for a minimum period of six months may an order be entered terminating parental rights. In re Santelia, 318 Pa.Super. 413, 417, 465 A.2d 21, 23 (1983). The pertinent inquiry is not the degree of success a parent may have had in reaching the child, but whether, under the circumstances, the parent has utilized all available resources to preserve the parent-child relationship. In re Adoption of Faith M., supra 509 Pa. at 245, 501 A.2d at 1108.

It is uncontroverted in the case sub judice that father did not have personal or even verbal contact with his son for a period in excess of six months. During that period, he did not write, telephone or see his son, and he did not send birthday or Christmas gifts. Although father explains that he did not know the address or telephone number of the home at which his son was residing, there is other evidence which supports the hearing court’s finding that father failed to utilize available resources, such as the telephone directory, to find his son. Although father testified that he had driven around Harrisonville in the hope of seeing his son, he concedes that he did not make inquiry of persons who could have been expected to know the address at which the son was living with his mother.

Father also contends that mother created impediments intended to thwart his efforts to maintain a parental relationship with his son. However, the trial court found that mother had not acted to impede visits by father, and that impediments otherwise arising could have been overcome by reasonable resolve. In fact, the court found, father had acquiesced in the separate existence of his son and had waited passively for a more convenient time to perform parental duties. It was small wonder, then, that Alan did not know appellant as his father and, instead, reserved that appellation for his stepfather.

Parental rights are not preserved, it has been held, by waiting for a more suitable or convenient time to perform one’s parental responsibilities while others provide the child with his or her immediate physical and emotional needs. See: In re Smith’s Adoption, 412 Pa. 501, 505, 194 A.2d 919, 922 (1963); In re Adoption of Sabrina, supra 325 Pa.Super. at 27, 472 A.2d at 629. Rather, a noncustodial parent must make an affirmative effort to exert himself or herself to take a place of importance in a child’s life. In re Adoption of J.S.M., Jr., 492 Pa. 313, 317, 424 A.2d 878, 880 (1981). “Parental duty does not require the impossible, but may encompass that which is difficult and demanding. A parent may not yield to every problem, but must act affirmatively, with good faith interest and effort, to maintain the parent-child relationship to the best of his or her ability, even in difficult circumstances.” In re Burns, supra 474 Pa. at 626, 379 A.2d at 541; In re Sabrina, supra.

It may well be, as father suggests, that the differences between divorced spouses tend to create an atmosphere which does not encourage visitations by one parent in the home of the other parent. The record in the instant case, however, fails to disclose impediments rendering impossible, or even excessively difficult, the performance by father of those parental duties which are usually associated with a father-son relationship. The difficulty in visiting his son was not such as would excuse father’s total failure to communicate with him for more than six months while others fulfilled parental responsibilities to the boy. Father’s disassociation with his son, the Orphans’ Court could find, was voluntary and in default of his parental obligations. Therefore, the Orphans’ Court did not abuse its discretion when it found that father had failed to perform parental responsibilities for more than six months and concluded that the best interests of the boy would be served by terminating appellant’s parental rights.

Order affirmed.

      . The record demonstrates that the support order pursuant to which father paid support was terminated at mother’s request; however, father continued to pay support for some time thereafter. Upon mother’s continued declination of support and due to financial difficulties, father eventually ceased making support payments.

      . Eric Shives filed a petition to adopt Alan upon the termination of father's parental rights.

      . Mother filed a petition to dismiss the appeal on April 14, 1986, contending that as no post-trial motions had been filed, all issues were waived. That petition was denied on August 28, 1986.

      . Although maintaining medical insurance coverage for his son under a work related plan, father did not provide mother with information essential to claiming the benefits of that insurance for Alan.


author: CIRILLO, President Judge:

text:
    525 A.2d 804
    COMMONWEALTH of Pennsylvania v. Andy AYERS, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 3, 1986.
    Filed May 14, 1987.

      Jack E. Reagle, Public Defender, Sharpsville, for appellant.
    Martha J. Duvall, Assistant District Attorney, Coudersport, for Com., appellee.
    Before CIRILLO, President Judge and ROWLEY and POPOVICH, JJ.
   CIRILLO, President Judge:

This is an appeal by permission of the court from an interlocutory order in the Court of Common Pleas of Potter County denying the Commonwealth’s motion to admit the appellant into the Accelerated Rehabilitative Disposition (“ARD”) program. We affirm.

Appellant, Andy Ayers, was charged with corruption of a minor, indecent assault, harassment and furnishing liquor to a minor. Ayers persuaded the 14 year old victim to come to a beer party at 5:30 a.m. However, when she arrived she discovered the party had ended and only Ayers was present. He allegedly provided her with alcohol and stopped her when she attempted to leave. He then struck her and ripped off her top clothing, exposing her breasts. Ayers then threatened to beat her further if she did not do as he wanted. He allowed her to choose between his ejaculating inside of her or over her breasts. He felt her breasts and made her masturbate him. Ayers then masturbated himself and climaxed over the victim’s breasts. He also reached inside her pants to feel her vagina.

After Ayers’ arrest, the district attorney signed a motion proposing his admission into ARD. The Commonwealth alleged that the defendant was twenty years of age, separated from his wife, gainfully employed and that the crime was his first offense. The court held a hearing on the petition at which the district attorney stated that the victim is reluctant to testify and that her parents do not want her to testify. The trial court refused to admit Ayers into the program, citing the violent nature of his heinous and disgusting crime as the basis for its decision. Ayers then appealed to this court.

Appellant presents a single issue for our review: whether a trial court may reject a Commonwealth motion to admit a defendant into the ARD program.

In Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985), our Supreme Court held that a court cannot ordinarily admit a defendant into an ARD program unless the district attorney submits the case for ARD consideration. Id., 508 Pa. at 309, 495 A.2d at 935. The Court held that the decision whether to submit a case for ARD “rests in the sound discretion of the district attorney.” Id. A trial court may not object if the Commonwealth refuses to submit a case unless the district attorney has abused his discretion by refusing to submit an individual because of his race or religion or some other obviously prohibited consideration. Id. The Court held that a trial judge may not overrule the district attorney and force him to submit a case to ARD for any reason related to the protection of society or the likelihood of a successful rehabilitation. Id. The Court, per Justice Flaherty, stated that “the attorney for the Commonwealth must be free to submit a case or not submit it for ARD consideration based on his view of what is most beneficial for society and the offender.” Id.

Appellant, Ayers, and the Commonwealth urge us to extend the holding of Lutz. They argue that Lutz requires that admission to ARD must be at the sole discretion of the Commonwealth and that a trial court must admit to the program anyone recommended by the district attorney absent an abuse of discretion. We disagree. The only issue determined in Lutz was whether a trial court can choose to admit someone to ARD who has not been recommended by the district attorney. The case did not deal with a court’s authority to reject persons who the district attorney has recommended. These situations are completely dissimilar. Therefore, Lutz is inapplicable to the matter before us.

The Lutz Court based its decision on two separate grounds. The Court reasoned that whether to charge someone with a crime is ordinarily a matter of prosecutorial discretion. A motion to admit a defendant into ARD is actually a decision by the district attorney not to charge that individual. Therefore, whether to make such a motion is within the prosecutor’s discretion.

The Court also noted that the Rules of Criminal Procedure support this same result. Rule 175 states that “the attorney for the Commonwealth, upon his own motion ... may move that the case be considered for accelerated rehabilitative disposition.” The rules expressly provide that only the district attorney may initiate the ARD process. The judiciary is not afforded any role in this process until the Commonwealth has made the initial motion. The facts of the case are then presented to a judge at a hearing. See Pa.R.Crim.P. 179(b). That hearing is the first time the judicial system is implicated in the ARD process. Therefore, a plain reading of the applicable rules as well as traditional notions of prosecutorial discretion support the decision of the Lutz Court.

Neither of these considerations apply in the instant matter. When a prosecutor decides whether to move for a defendant’s admission to ARD, he has fulfilled his charging function. Judicial consideration of the motion does not begin until the prosecutor’s decision has already been made. Thus, the court’s ensuing disposition of the motion does not interfere with the district attorney’s historical right to autonomously decide what charges should be brought.

The plain language of the Rules also makes it clear that our judges are not to serve as mere rubber stamps approving all Commonwealth motions for admission to the program. Though the Rules exclude the courts from any role in the initiation of ARD proceedings, they provide the judiciary with significant responsibilities once those proceedings are underway.

The Rules clearly state that the judge is the final arbiter as to who enters ARD. Rule 179 states in pertinent part:

After learning the facts of the case, if the judge believes that it warrants accelerated rehabilitative disposition, he shall order the stenographer to reopen the record and he shall state to the parties the conditions of the program.

Pa.R.Crim.P. 179(c)

The important language is: “if the judge believes that it warrants accelerated rehabilitative disposition.” There is no mention of the district attorney or any other representative of the Commonwealth. The decision is left entirely up to the judge’s discretion. Therefore, the policies underlying the Lutz decision do not support a similar result in this case. In fact, considerations of historical spheres of responsibility and the plain language of the Rules leads us to conclude that the trial judge is required to interpose his judgment into the ARD process once it has been initiated by the district attorney.

The Rules also state that any victims of the charged offense must be notified of the Commonwealth’s application to place the defendant in ARD. The victim is entitled to be present during the hearing which the court must hold on the motion for admission. See Pa.R.Crim.P. 177, 178. The judge is directed to hear from the Commonwealth, the defendant, and any victim who is present.

Appellant claims that this hearing should only be a meaningless formality. Ayers argues that based on Lutz, a judge may reject the Commonwealth’s motion only if the district attorney based his decision on race, religion or some other obviously prohibited consideration. Appellant asserts that the court may not consider the need to protect society from the alleged criminal or the likelihood of a defendant’s success in rehabilitation. If this is so, why does the Rule direct that the victim should be present to testify? Is the victim to testify about the defendant’s religious convictions or social characteristics? Such a contention is plainly absurd. The victim may testify only to facts as to which he or she is aware. That is, the nature of the alleged crime. This factor is only relevant to the proposed motion if the court may consider the need to protect society from the defendant. Consideration of this factor is traditionally the trial court’s responsibility just as charging decisions are traditionally within the prerogative of the district attorney.

It is apparent that the ARD program was intended to provide an alternative to incarceration for non-violent offenders with rehabilitative potential. When interpreting a statute, we must construe its provisions as a whole and seek to apply the underlying legislative purpose. Bertera’s Hopewell Foodland, Inc. v. Masters, 428 Pa. 20, 236 A.2d 197 (1967), appeal dismissed, 390 U.S. 597, 88 S.Ct. 1261, 20 L.Ed.2d 158 (1968); Causer v. Mandarino, 338 Pa.Super. 564, 488 A.2d 36 (1985). The comments to Rule 177 approvingly quote the letter used in Philadelphia County to inform victims of their right to appear at the ARD hearing. The letter states, “the Supreme Court of Pennsylvania adopted a Rule authorizing the courts of this county to institute a unique program for non-violent offenders.” The letter also states that in order to qualify for the program, a defendant must “not be accused of a crime of serious violence.” Id. ARD should only be available to persons who are not a threat to society.

As the Lutz court ruled, the Commonwealth is free to submit a case or not, based on its view of what is beneficial to society. Lutz 508 Pa. at 309, 495 A.2d at 935. However, once the case is submitted, the trial court is free to reject it based upon its view of what is beneficial to the community. In this case, the trial court considered the nature of Ayers’ reprehensible crime and properly rejected the ARD motion. If Ayers is guilty he is a threat to society and should suffer the consequences of his degenerate behavior.

Ayers points to Commonwealth v. Burdge, 345 Pa.Super. 187, 497 A.2d 1367 (1985), as support for his claim that a trial court must approve a Commonwealth motion for admission into ARD absent an abuse of discretion. In Burdge, a panel of this court held that court-established admission criteria for ARD intruded upon the prerogatives of the district attorney and therefore were invalid under the Rules of Criminal Procedure. Id., 345 Pa.Superior Ct. at 190, 497 A.2d at 1368-69. Ayers argues that the Burdge court in effect held that a trial court may not interfere with the entire ARD process except in extraordinary circumstances. We must reject this assertion.

Prior to Burdge, the Court of Common Pleas of Hunting-don County had established rigid criteria governing entrance to the county’s ARD program. Id., 345 Pa.Superior Ct. at 189, 497 A.2d at 1368. The Burdge court described the criteria as “formulaic” and “inflexible.” The court recognized that the rules controlling ARD require trial courts to consider each case on an “individual basis.” Id. Therefore, the criteria were invalid because they violated the “theory [of] individualized sentencing.” Id.

The criteria also intruded upon the district attorney’s authority because they discouraged the Commonwealth from proposing the admission of any defendant who could not meet the relevant requirements. As Lutz held, the Rules provide that the district attorney may move for the admission of any defendant he chooses into ARD. The Huntingdon County rules were invalid because they circumscribed this discretion by rendering it meaningless. A trial court’s obligation in the ARD process is to consider each case on an individual basis to determine if “it warrants accelerated rehabilitative disposition____” See Pa.R. Crim.P. 179(c). The trial court may not promulgate general rules which interfere with the prosecutor’s discretion.

In this case, the trial court issued no rules of universal applicability. It considered the individual circumstances of the defendant and the nature of his crime. The court then decided that ARD was not warranted. In making its decision the court acted in the best interests of the community which it serves. This is the traditional role which our courts have proudly fulfilled.

Based on the foregoing, the order of the Court of Common Pleas of Potter County is affirmed.

POPOVICH, J., concurs in result.

      . It has been pointed out that the Lutz Court, per Justice Flaherty, stated that if a "case is submitted for ARD, the court must approve the defendant’s admission.” Lutz, 508 Pa. at 303, 495 A.2d at 931. Because Lutz did not concern a case submitted by the prosecution and rejected by the trial court, this remark is dicta and not binding as precedent. See Deemer v. Oros, 362 Pa.Super. 124, 128, 523 A.2d 806, 808 (1987). However, even if this statement were not dicta, we would be unsure of its meaning. We believe it is reasonable to assume that Justice Flaherty meant the court must approve the defendant if he is qualified under the statutory criteria. This interpretation is buttressed by the Lutz Court’s later discussion of prosecutorial discretion. The court stated that "the Commonwealth must be free to submit a case ... for ARD consideration....” Lutz 508 Pa. at 310, 495 A.2d at 935 (emphasis added). If the prosecutor’s decision was final, the case would not be subject to consideration.


author: BROSKY, Judge:

text:
    525 A.2d 808
    COMMONWEALTH of Pennsylvania v. Frank TRPUTEC, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 16, 1986.
    Filed May 11, 1987.
    Reargument Denied Aug. 7, 1987.

      Michael J. Healey, Pittsburgh, for appellant.
    Andrea F. McKenna, Harrisburg, for Com., appellee.
    Before BROSKY, DEL SOLE and JOHNSON, JJ.
   BROSKY, Judge:

This is an appeal from a judgment of sentence entered against appellant after being convicted in a jury trial on one count each of criminal solicitation to commit murder and criminal conspiracy to commit murder. The appellant has raised eleven issues, included among them is the issue of whether the Office of the State Attorney General lacked authority to prosecute this case. Because we find that the Attorney General lacked the requisite authority to prosecute the case we vacate the judgment of sentence.

Appellant was implicated in criminal activity by one Ron Arnold who was arrested in 1984 by Pennsylvania State Police and charged with 18 counts pertaining to four stolen tractor-trailers. As a result of that arrest, Arnold entered into a plea agreement in which he pled guilty to four counts of receiving stolen property. In addition to the crimes charged, Arnold admitted to the police his involvement in other crimes including the theft of some 40 tractor-trailer units, alteration of vehicle titles and arson. As to his part of the plea agreement, Arnold agreed to cooperate with the Attorney General in the prosecution of criminal activities of which he had knowledge. Arnold cooperated in these investigations in the hope that his sentence would be shortened and had been told that any cooperation he rendered would be brought to the attention of the sentencing judge, although he had received no promises that the Attorney General would make specific sentence recommendations.

One of the crimes in which Arnold admitted an involvement was an arson at F & H Equipment, a truck repair shop, located in Beaver County and owned by Frank Trputec. At the request of Francis H. Grolemund, a criminal investigator with the Pennsylvania State Police, Arnold arranged a meeting with Trputec. The purpose of this meeting was to discuss the fire at F & H Equipment. To elicit information about the arson which had occurred in 1981 Arnold introduced the name of Bill Hilton into the conversation. Hilton had worked with Trputec to set the fire. The basis of Arnold’s fabrication was that he was growing fearful that Hilton would talk about the fire as the police were reopening their investigation of the arson.

The initial meeting between Arnold and Trputec took place July 24, 1985. Arnold voluntarily consented to the recording of the meeting. The conversation between the two men was recorded by means of a recording device concealed on Arnold and monitored from a remote location by Trooper Grolemund.

After initial small talk, Arnold told Trputec that he feared Hilton was talking or would soon talk to the police about the arson at F & H Equipment. Arnold asked Trputec what Trputec would say if the police came to him and said that Hilton had admitted starting the fire. Shortly after this question by Arnold, Trputec raised the prospect of having Hilton “erased.” Later taped conversations fleshed out the details of the contemplated agreement whereby, for $10,-000, Trputec would have Hilton killed. The taped conversations and testimony of Arnold and Trooper Grolemund comprised the bulk of the Commonwealth’s case.

An information was prepared and signed by the District Attorney of Lawrence County, William Panella. Some time later Mr. Panella was contacted by the Attorney General’s office and informed of other charges pending against the appellant in neighboring counties which were being handled by the Attorney General’s office. Mr. Panella was asked if he had any objection to the Attorney General’s office handling the prosecution in Lawrence County. Mr. Panella indicated he did not object and was further asked if he would write a letter to the Attorney General’s office requesting that they handle the prosecution. This was done and the office of the Attorney General prosecuted the defendant for the conviction appealed from.

As noted in this court’s en banc decision in Commonwealth v. Carsia, 341 Pa.Super. 232, 491 A.2d 237 (1985), the scope of the Attorney General’s authority and power has been subjected to a storied history of treatment by both the legislature and the judiciary of this Commonwealth. However, that decision, as affirmed by our Supreme Court, firmly established that the Commonwealth’s Attorney’s Act, 71 P.S. § 732-205, is the current source of the Attorney General’s authority and that the Attorney General possesses no greater power to prosecute criminal matters than that prescribed by section 205 of the act. Commonwealth v. Carsia, 512 Pa. 509, 517 A.2d 956 (1986). In so doing, this court and our Supreme Court have reversed an earlier trend in decisional case law which had extended great power to the Attorney General to prosecute such cases. A most positive statement to this effect was made by our Supreme Court in Commonwealth v. Schab, 477 Pa. 55, 61, 383 A.2d 819, 822 (1978):

We no longer adhere to this view. Simply because the Attorney General had the common law power to replace his own deputies does not justify the conclusion that he now has the same right to supersede an elected District Attorney, an officer unknown to the common law. It would be incongruous to place the district attorney in the position of being responsible to the electorate for the performance of his duties while actual control over his performance was, in effect, the Attorney General. To countenance such a separation of accountability and control undermines self-government and promotes centralization of law enforcement — precisely the approach rejected in Pennsylvania by statute in 1850 and constitutionally in 1974. (citations omitted).

The Commonwealth and the trial court have cited section 205(a)(3) of the Act for the authority of the Attorney General to prosecute this case. 71 P.S. § 732-205(a)(3) states:

(a) The Attorney General shall have the power to prosecute in any county criminal court the following cases:
(3) Upon the request of a district attorney who lacks the resources to conduct an adequate investigation or the prosecution of the criminal case or matter or who represents that there is the potential for an actual or apparent conflict of interest on the part of the district attorney or his office.

A request was made, in the form of a written letter, by the District Attorney to the Attorney General’s office. However, the request would not seem to cite a reason encompassed in the Act allowing the Attorney General to assume prosecution; and, although we do not find the wording of the District Attorney’s letter dispositive of the issue before us, certainly the content of that letter cannot be ignored and raises immediate concern over the existence or presence of circumstances sufficient to allow the Attorney General to prosecute this case.

The District Attorney’s letter states that because charges were pending against appellant in other counties, which the Attorney General’s office was handling, the charges in Lawrence County could be handled “in the most practical manner” by the Attorney General’s office. The statutory provisions cited allow the Attorney General to prosecute upon request of the District Attorney if there is a potential for a conflict of interest, or if the District Attorney lacks the resources to conduct an adequate investigation or prosecution of the case. At no time in the hearings, arguments or briefs has it been argued or alleged that there exists a potential for a conflict of interest. Rather, the Attorney General argues now that the District Attorney’s request is tantamount to an indication that he lacked the resources to adequately investigate and prosecute the case. Upon reviewing the record we cannot agree with this proposition.

William Panella testified in pre-trial hearings on how and why this case came to be prosecuted by the Attorney General’s office. He indicated that he had no investigative staff and that his office routinely worked with law enforcement agencies in prosecuting their cases. Mr. Panella’s testimony indicated that, generally speaking, all criminal investigation in Lawrence County was performed by an appropriate police agency. After charges were filed by the police, attorneys from the District Attorney’s office met with arresting and investigating officers and other witnesses to exchange information for the preparing of criminal complaints and for eventual prosecution. In the present case, the Commonwealth’s case had been built prior to the Attorney General’s office assuming the prosecution. Furthermore, Trooper Grolemund testified that although he contacted the Attorney General’s office to receive approval for intercepting conversations of Mr. Arnold with appellant, and although he received some advice from their office, the investigation of this matter was a “complete state police case.”

Additional testimony revealed that the Lawrence County District Attorney’s Office was comprised of Mr. Panella and nine Assistant District Attorneys, five being full time and four part time. None of the testimony indicated that Mr. Panella’s office would have had difficulty in trying the case. To the contrary, Mr. Panella testified that usually all of the criminal work is completed within the first week of the two week criminal jury term commonly scheduled in Lawrence County. In fact, all indications are that if Mr. Panella had not been contacted by the Attorney General’s office, the District Attorney’s office would have proceeded to prosecute appellant without objection. It further appears that Mr. Panella simply assented to the Attorney General’s request to prosecute the case. Unfortunately, we cannot find that such factors bestow authority in the Attorney General to prosecute the case under 71 P.S. § 732-205(a)(3). A request by the District Attorney’s office without one of the enumerated circumstances being present will not suffice.

In reaching this decision we are mindful not to require a District Attorney to mirror the statutory language, or, as appellee has characterized it, to use “magic words”, in its request to the Attorney General to handle a prosecution. However, we are equally mindful not to extend plenary power to that office to step into and assume a prosecution of criminal matters, especially when this court sitting en banc and our Supreme Court have recently indicated the impropriety of authorizing such power. In the present case we would be straining our imaginations to hold that the circumstances presented to the court are sufficient under 71 P.S. § 732-205(a)(3) to grant power to the Attorney General to prosecute the case. As the Attorney General was without authority to prosecute appellant below, the judgment of sentence must be vacated.

Judgment of sentence vacated, case remanded for a new trial by the District Attorney of Lawrence County.

      . As we find this issue dispositive of the instant appeal, we express no opinion as to the merits of appellant’s remaining issues.

      . See, in accord, this court’s en banc decision in Commonwealth v. Goodman, 347 Pa.Super. 403, 500 A.2d 1117 (1985).

      . The full text of the written request is as follows:
      Dear Mr. Claus: Charges of criminal solicitation and criminal conspiracy have been filed against Frank Trputec for conduct by him in Lawrence County. We have become aware, however, that this defendant is also accused of conduct in other counties. Because of the multi-county scope of this prosecution and the fact that your office has been asked to handle the related prosecutions in Mercer County and Crawford County, we believe that the prosecution of the charges in Lawrence County could be handled in the most practical manner by your office. Therefore, by this letter, we are requesting that your office handle the prosecution of Mr. Trputec on the charges in Lawrence County. Do not hesitate to contact our office if we may be of any assistance to you in this prosecution. Very truly yours, William M. Panella, District Attorney.

      . In this regard, we find the following quote from our opinion in Commonwealth v. Goodman, 347 Pa.Super. 403, 500 A.2d 1117 (1985), is equally appropriate here by simply substituting the word “prosecution” for investigation:

        "More importantly, the record also reveals that at no time was there any representation by either law enforcement office that the district attorney *lack[ed] the resources to conduct an adequate investigation,’ or that there was a ‘potential for an actual or apparent conflict of interest on the part of the district attorney or his office.’ Id. We, therefore, reject the Commonwealth’s argument that there was any substitution under section 205, by agreement or request, which permitted the Attorney General to investigate.”

      . The present case differs somewhat from both Carsia and Goodman, discussed supra, in that both of those cases found the trial court granting the requested relief prior to the trial taking place. In Carsia, the appellee had filed a petition to quash the information filed by the Attorney General, which was granted. In Goodman, the appellee had filed a motion to suppress evidence produced as a result of the Attorney General’s investigation which was also granted. The Attorney General had filed the complaint against Goodman then subsequently decided that the office lacked a basis for prosecuting the case and "turned the case over” to the Allegheny County District Attorney’s Office which assumed the prosecution. Goodman then filed the motion to supress. In the present case, the information was filed by the District Attorney of Lawrence County but then the prosecution was "turned over” to the Attorney General. Unlike the situation in Carsia and Goodman, Trputec’s pre-trial request for relief was denied by the trial court.
      As the information in this case was filed by the proper agency, we see no reason to quash it. However, as we find that the Attorney General lacked the authority to prosecute the case, we see no alternative but to vacate the judgment of sentence.