author: BROSKY, Judge:

text:
    510 A.2d 815
    In re ESTATE OF Agnes JAKIELLA, Deceased. Appeal of Sophie GOLBA and Jane Kwiat, Contestants.
    Superior Court of Pennsylvania.
    Argued Feb. 18, 1986.
    Filed June 10, 1986.
    Petition for Allowance of Appeal Denied Nov. 4,1986.

      Charles W. Garbett, Ellwood City, for appellants.
    Irving M. Portnoy, Pittsburgh, for appellee.
    Before BROSKY, OLSZEWSKI and POPOVICH, JJ.
   BROSKY, Judge:

This is an appeal from the order making final the decree of the Orphans’ Court of Lawrence County which gave full force and effect to the last Will and Testament of Agnes Jakiella dated August 7, 1974. Appellants raise two issues for our determination: (1) whether appellee (proponent of the 1974 Will) stood in a position of trust and confidence with the testatrix at the time the 1974 Will was executed thus rendering the trial court’s order erroneous; and (2) whether the case should be remanded for more detailed factual findings concerning the testatrix’s ability to speak and understand English.

We have carefully reviewed the record and briefs submitted by counsel and after our own independent analysis of applicable law, we find no abuse of discretion by the trial court. Accordingly, we affirm the order.

At the outset we note that our scope of review in a case of the instant nature is extremely limited. As this Court stated in Estate of Bankovich, 344 Pa.Super. 520, 522-23, 496 A.2d 1227, 1229 (1985):

Our review in [a will contest] is limited to determining whether the findings of fact approved by the court en banc rest on legally competent and sufficient evidence, and whether an error of law has been made or an abuse of discretion committed. It is not our task to try the case anew. The rule is particularly applicable ‘to findings of fact which are predicated upon the credibility of the witnesses, whom the judge has had the opportunity to hear and observe, and upon the weight given to their testimony.’ (citations omitted).

Additionally, we note that the trial court was similarly restricted in its scope of review when it heard the exceptions to the Decree Nisi and reargument on the final decree.

The testatrix was an immigrant from Poland who resided on a farm near New Castle, Pennsylvania. At the time of her death in 1977, the testatrix was survived by three children, appellants (two married daughters), and appellee, her son.

Testatrix had lived on the farm with another son, Joseph, until Joseph’s death in May, 1972. Prior to his death, Joseph had handled all of his mother’s financial affairs. Shortly after Joseph’s death, the testatrix executed the Will offered by appellants in this case which was dated June 17, 1972. That Will divided the testatrix’s estate equally among her three surviving children.

In October 1972, appellee assumed his deceased brother’s responsibilities toward his mother and began managing the testatrix’s finances, as well as providing her with the other care she had received from Joseph. Although the testatrix continued to live alone, appellee would spend considerable time with her every day. Appellee continued to discharge his caretaker responsibilities until the testatrix’s death.

In 1974, an attorney visited the testatrix for the purposes of drafting a new Will. During the attorney’s second meeting with the testatrix, a new Will was executed which gave each of her married daughters (appellants) $1,000.00 and left the “rest, residue and remainder” of her property to appellee. The subsequent Will is the Will now probated and the subject of this appeal. The attorney also prepared, at the testatrix’s direction, a power of attorney appointing appellee her attorney-in-fact.

Although this later Will was originally accepted for probate, appellants contested the Will and the trial court entered a Decree Nisi which revoked the later Will and reinstated the prior Will of 1972. Appellee then filed timely exceptions to the decree and, after a thorough examination of the record and after hearing arguments thereon, the trial court reversed its decision and stated that as a matter of law there was insufficient evidence to establish that the later Will was the product of undue influence. Therefore, the trial court reversed its Decree Nisi and gave full force and effect to the 1974 Will. After reargument, that order was made final and became the subject matter of this appeal.

Appellants first contend that the evidence presented at trial showed that appellee stood in a position of trust and confidence with the testatrix at the time the second Will was executed. The burden of proving undue influence is on the contestants since a presumption of validity arises once a Will is probated. In re Estate of Clark, 461 Pa. 52, 334 A.2d 628 (1975).

To meet this burden, contestants must establish by clear and convincing evidence that: (1) the testator was of weakened intellect when the Will was executed; (2) there was a person in a confidential relationship with the testator; and (3) the person in the confidential relationship receives a substantial benefit under the Will. Once met, the burden shifts to the proponent of the Will to show the absence of undue influence. Estate of Ross, 316 Pa.Super. 36, 462 A.2d 780 (1983).

The trial court found that there was sufficient evidence to prove the first factor outlined in Ross, but held that there was a lack of clear and convincing evidence to establish a confidential relationship at the time the Will was drafted or at any reasonable time thereafter. We agree.

Our Supreme Court has defined the clear and convincing standard as follows:

“[T]he witnesses must be found to be credible, that the facts to which they testify are distinctly remembered and the details thereof narrated exactly and in due order, and that their testimony is so clear, direct, weighty, and convincing as to enable the jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.”

In Re Estate of Fickert, 461 Pa. 653, 658, 337 A.2d 592, 594 (1975) quoting In La Rocca Trust, 411 Pa. 633, 640, 192 A.2d 409, 413 (1963).

For purposes of voiding a Will on the ground of undue influence, a confidential relationship exists whenever circumstances make it certain that the parties did not deal on equal terms but that on one side there was an over-mastering influence, and on the other, dependence or trust, justifiably reposed. Estate of Ross, supra. Appellee’s parent-child relationship with the testatrix does not per se justify recognition of a confidential relationship. Thompson Will, 387 Pa. 82, 126 A.2d 740 (1956). Rather, the existence of a confidential relationship between a parent and child must be established by the evidence, In Re Estate of Mikm, 345 Pa.Super. 1, 497 A.2d 612 (1985).

Neither does appellant’s appointment as the testatrix’s attorney-in-fact necessitate a finding of a confidential relationship. The record in this case reveals that it was the testatrix who desired to appoint appellee as her attorney-in-fact: thus, the testatrix’s grant of her power of attorney to appellee does not support a confidential relationship. See, In Re Estate of Ziel, 467 Pa. 531, 359 A.2d 728 (1976) (power of attorney created at testator’s insistence and for his convenience did not give rise to confidential relationship).

Further, the record reveals that, contrary to appellants’ assertions, appellee did not restrict the testatrix’s access to the outside world until more than 15 months after the Will was executed and appellee testified that his actions were at the testatrix’s directions. Since the trial court based its original finding of a confidential relationship on appellee’s restricting outside visitors, the trial court was compelled to reverse its decision when a reexamination of the record revealed that appellee’s actions were too remote in time to bear on his relationship with the testatrix at the time the Will was drafted. Testimony as to the relationship between the testator and proponent must pertain to the point in time when the Will was executed to be relevant. In re Kirkander, 326 Pa.Super. 380, 474 A.2d 290 (1984); Estate of Bryner, 464 Pa. 10, 345 A.2d 706 (1975). Thus, the trial court correctly found that its original determination was made in error.

Finally, there is no other evidence in the record that appellee took advantage of, or had an over-mastering influence over the testatrix at the time the Will was drafted. Accordingly, we find no abuse of discretion by the trial court in finding as a matter of law that appellants failed to meet their burden of proving a confidential relationship by clear and convincing evidence.

Appellant’s second issue as to the testatrix’s ability to understand English is directed toward the credibility of the appellee’s witnesses. The subscribing witnesses to the testatrix’s Will both testified that the testatrix appeared in good health and was able to understand the provisions of the Will at the time of execution. Further, the scrivener testified that the testatrix was adamant in her distribution wishes, and appellee was not present during the discussions with the testatrix. See, In re Estate of Agostini, 311 Pa.Super. 233, 457 A.2d 861 (1983) (where proponent was not present during Will discussions and decedent’s intentions were emphatic no undue influence was shown). The trial court was aware of the weight to be accorded the testimony of the subscribing witnesses and determined that the testatrix did understand the provisions of her will.

While the record reveals that appellants produced testimony from many witnesses, some of who disclaimed the testatrix’s ability to speak and understand English, “[i]t is not our task to try the case anew. Credibility of the witnesses is for the hearing judge who has heard and seen them____” Estate of Ziel, supra, 467 Pa. at 537, 359 A.2d at 731. As this court recently stated in Shepley v. Dobbin, 351 Pa.Super. 182, 505 A.2d 327 (1986), “Particularly where, as in this instance, the evidence is contradictory, the chancellor’s findings deserve even greater weight, since it is he who must necessarily pass on the credibility of witnesses.” 351 Pa.Superior Ct. at 185-186, 505 A.2d at 329.

After careful review, we find that the evidence in the record supports the finding of the trial court. We find no abuse of discretion in the trial court’s holding.

Order affirmed.

      . The Honorable Francis X. Caiazza presided over every proceeding in this case. Thus, when he heard exceptions to the Decree Nisi and reargument on the final decree, he was acting as a court en banc and was subject to the same scope of review which constrains this Court. Estate of Cooper, 351 Pa.Super. 482, 506 A.2d 451 (1986).


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    510 A.2d 819
    J. Warren MATSON, Bert Collins, Harry Ingram and Mary Ann Miaczynski v. HOUSING AUTHORITY OF the CITY OF PITTSBURGH, Appellant.
    Superior Court of Pennsylvania.
    Argued April 15, 1986.
    Decided June 2, 1986.

      David B. Washington, Pittsburgh, for appellant.
    Barbara M. Wolvovitz, Pittsburgh, for Matson, appellee.
    Henry L. Miller, Pittsburgh, for Collins, appellees.
    Before TAMILIA, KELLY and MONTGOMERY, JJ.
   TAMILIA, Judge:

This is an appeal from a final judgment entered against appellant, Housing Authority of the City of Pittsburgh (hereinafter HACP) ordering payment for accrued vacation and sick leave to appellees.

Appellant, HACP, is a housing authority created in accordance with the Housing Authorities Act (35 P.S. § 1541 et seq.). Appellees, Matson, Ingram, Collins and Miaczynski, were employed respectively by the appellant from September 1942, February 1942, February 1948 and March 1957.

This action was commenced on December 29, 1977 when appellees served appellant with a Writ of Summons in Assumpsit. It was not until May 1980, following appellant’s Praecipe for Rule to File Complaint, that a complaint was filed by appellees as former employees of appellant, HACP, to recover payment for accumulated sick and vacation leave to which an answer and new matter were filed by appellant. On October 28, 1981, appellee filed a motion for summary judgment alleging appellant was collaterally es-topped from relitigating issues resolved in Housing Authority of Pittsburgh v. Konrad C. Dorsch, et al. at G.D. 75-3399 et seq. The Court en banc granted appellee’s motion for summary judgment on April 26, 1981, and appellant appealed to the Superior Court. On March 23, 1984, in Matson et al. v. Housing Authority 326 Pa.Super. *109, 473 A.2d 632 (1984), the Superior Court reversed the granting of summary judgment because the record was inadequate and the appellee’s argument was based on dicta in Dorsch, supra. After remand, the case was submitted to the lower court on a stipulation of facts as a case stated. After argument, the lower court entered judgments for the appellees. The lower court denied appellant’s exceptions on July 8, 1985, and appellant appealed to this Court.

During the period of employment in issue, the board of directors of the HACP implemented personnel policies which governed the terms of employment including vacation and sick leave of all non-union employees of the HACP. The appellees were made aware of the terms of successive personnel policies by distribution of copies or through office meetings. The 1970 personnel policy provided for the accumulation of vacation leave based on years of employment over a five year period, unlimited accumulation of sick leave and payment at the time of termination of employment for sick leave accrued during the last ten years of employment. The appellees were aware that it was the custom and practice of appellant to pay its employees, at the time of resignation, for accumulated vacation leave in the amount permitted by the terms of their employment. On November 30, 1971, the HACP board of directors adopted a new personnel policy, effective January 1, 1972, which eliminated payment for unused sick leave when employment was terminated and limited the accumulation and carryover of vacation time. All appellees submitted their resignations of employment prior to January 1, 1972.

During this period of time appellant had entered into a series of Annual Contributions Contracts with the U.S. Department of Housing and Urban Development (hereinafter HUD) and was the recipient of federal funds. The HUD Handbook 7401, dated March 1971, provided that:

b. Carryover of Leave. If public practice in the locality includes a limitation on the amount of accrued unused sick or annual leave that may be carried over as a balance at the end of any year, the local agency shall adopt a comparable limitation. If pertinent public practice does not include such limitations, the local agency may provide for a cumulative maximum carryover of 30 days of unused annual leave at the beginning of any leave year. Unlimited sick leave may be accrued.
c. Unallowable Leave Payments. In the absence of conclusive evidence of pertinent local public practice to the contrary, the local agency policy shall not provide for:
(1) Payments for unused sick leave and compensatory leave.
(2) Payments for unused annual leave except upon separation of an employee from the local agency. Payments upon separation shall be based on the amount of annual leave carried over at the beginning of the current year plus the amount of annual leave earned and unused during the current year to the date of separation.
In his appeal, appellant has alleged the following issues:
1) Whether the personnel policy of 1970 was contrary to HUD regulations, when implemented after March 1971;
2) Whether the HACP can be required to expend funds contrary to HUD regulations and directives;
3) Whether the court erred in finding that the Housing Authority has non-federal funds from which to pay appellee’s claims.

Initially, appellant contends the personnel policy of 1970 was contrary to and violated HUD regulations which were implemented after March of 1971. Appellant points out that a HUD audit of 1972 concluded the personnel policy of 1970 was not comparable to local public personnel policy and the policy provided for cash payments for unused sick and vacation leave in excess of HUD regulations. We believe and the lower court correctly held, that HACP is bound under contract and estoppel principles by its personnel policy authorizing payments for unused vacation and sick leave for employees who terminated their employment prior to January 1, 1972. Any alleged conflict with HUD regulations is irrelevant to the vested rights acquired by these employees in their contract with HACP. See Catania v. Commonwealth State Employees’ Retirement Board, 498 Pa. 684, 450 A.2d 1342 (1982), on return 71 Pa.Cmwlth. 393, 455 A.2d 1250 (1983).

In this regard, appellant contends the HUD regulations bind the Authority because they supplement those contained in the annual contributions contract and are mandatory upon the appellant, however, it ignores the fact that the appellant had the authority to execute contracts necessary to exercise the power of the Authority. (35 P.S. § 1550(w))

The personnel policy of 1970 constituted a binding part of appellee’s employment contract with appellant, and the appellant is estopped to deny its authority to implement the personnel policy of 1970. Equitable estoppel can be applied to a governmental agency to preclude the agency from depriving a person of a reasonable expectation when such agency knew or should have known that such person would rely upon the representation of the agency. Commonwealth Department of Environmental Resources v. Dixon Contracting, 80 Pa.Commw. 438, 471 A.2d 934 (1984). If the appellant failed to comply with federal regulations, it should not be permitted to benefit by its own mistake to the detriment of its innocent employees. See Albright v. City of Shamokin, 277 Pa.Super. 344, 419 A.2d 1176 (1980). The parties have stipulated that the 1970 personnel policy provided for the payment of accumulated sick leave, appellees were aware of the custom and practice of appellant to pay for earned but unused vacation leave at the time of their resignation, and the 1972 personnel policy was implemented prospectively to provide long-term HACP employees with an opportunity to receive the benefits they had earned under the prior existing policy if they chose to terminate their employment prior to December 31, 1971. (R. part II pp. 5-7) After review of the record, it is apparent that appellees relied on the personnel policies of appellant to their detriment. This conclusion also addresses appellant’s argument on reliance in part four of its argument which we also find has no merit.

Appellant also alleges that the doctrine of preemption applies because the Housing Authority’s action, which is permitted under state law, is prohibited under federal law. The United States Supreme Court has stated:

... state law may be preempted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law fitting within that field is preempted. If Congress has not entirely displaced state regulation over the matter in question, state law is still preempted to the extent it actually conflicts with federal law. That is when it is impossible to comply with both state and federal law, or when state law stands as an obstacle to the accomplishment of the full purposes of the objectives of Congress.

Silkwood v. Kerr-McGee Corporation, 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984).

Here, Congress has vested in local public housing agencies the maximum amount of responsibility in administration of their housing programs. (42 U.S.C. § 1437). The personnel policy of 1970 provided greater vacation and sick leave benefits than HUD regulations. The lower court correctly resolved any potential conflict with federal law by concluding that federal regulations controlled the use of federal funds and appellant had other non-federal funds from which to satisfy their contractual obligations to appellees. Thus, we find there is no preemption problem.

Lastly, appellant contends the lower court erred in finding that appellant had non-federal funds to pay appellees claim. Paragraphs 15, 45, 46 and 48 of the parties’ stipulation clearly indicate appellant had non-federal funds to pay these claims at the time of appellees’ resignations. (R. part II, pp. 6, 13, 14 and 105a). After review of the record and the arguments of counsel, we conclude that the lower court’s finding is supported by the stipulation.

Finding no error in the reasoning or findings of the lower court, we affirm the judgment of the court below.

Judgment affirmed.


author: CAVANAUGH, Judge:

text:
    510 A.2d 822
    Mary Jane McGEE, Appellant, v. Edward H. FEEGE and Hayes & Feege PC and Charles W. Craven and Francis E. Marshall and Anthony P. Tinari and Marshall Dennehey & Warner and Travelers Insurance Company and Harry C. Shayhorn, Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 21, 1986.
    Filed June 9, 1986.

      Paul Shalita, Philadelphia, for appellant.
    Steven L. Sugarman, Paoli, for Feege, appellee.
    Lois A. Wood, Philadelphia, for Tinari, appellee.
    Curtis P. Cheyney, III, Philadelphia, for Travelers, appellee.
    Before CAVANAUGH, OLSZEWSKI and TAMILIA, JJ.
   CAVANAUGH, Judge:

The roots of this case go back many years. Appellant, Mary Jane McGee, was injured in 1968 and claimed workmen’s compensation. The employer agreed to pay compensation at the rate of $60.00 per week for an indefinite period of time and in 1970 petitioned to terminate the agreement. The referee denied termination of the agreement and the Workmen’s Compensation Appeal Board vacated the referee’s order. Subsequently, new testimony was taken before the referee who then suspended the agreement. The Workmen’s Compensation Appeal Board affirmed the suspension and the Commonwealth Court affirmed the Board’s order. An appeal was taken to the Supreme Court which reversed the Commonwealth Court’s affirmance of the Workmen’s Compensation Appeal Board’s order and remanded the matter to the Board for further proceedings. McGee v. L.F. Grammes & Sons, Inc., 477 Pa. 143, 383 A.2d 864 (1978). Subsequently, the Board directed that compensation be continued pursuant to the compensation agreement and the insurer filed a Petition for Clarification which the Supreme Court denied in McGee v. L.F. Grammes & Sons, Inc., 485 Pa. 643, 403 A.2d 573 (1979). Appellant was paid the compensation she was entitled to on July 18, 1979 with the appropriate interest.

In October, 1979 the appellant instituted an action in trespass against several lawyers, two law firms, a workmen’s compensation referee and Travelers Insurance Company. The appellant alleged that she was maliciously deprived of her property from March 23, 1978 to April 23, 1979. (Paragraph 18 of the complaint). In 1985 the court below granted the defendants’ motion for summary judgment and the plaintiff below has appealed to this court.

The court below determined that the plaintiff alleged that the defendants below (appellees herein) had committed the torts of abuse of process and malicious use of process and that in both torts a seizure of property must be established. Since it was clear from the affidavits, depositions and interrogatories on file that no seizure of property occurred, summary judgment was entered in favor of all appellees.

In order for the appellant to prevail under either the theory of abuse of process or malicious use of civil process, she must establish that she was deprived of her property or was arrested. Blumenfeld v. R.M. Shoemaker, 286 Pa.Super. 540, 429 A.2d 654 (1981). There is a distinction between abuse of process and malicious use of process. Ace v. Argonaut Insurance Company, 307 Pa.Super. 200, 202-3, 452 A.2d 1384, 1385 (1982) points out that:

Decisions in this state and in other jurisdictions have drawn a distinction between actions for abuse of legal process and those for malicious prosecution, which, when founded on civil prosecutions, are usually described as malicious use of civil process. The gist of an action for abuse of process is the improper use of process after it has been issued, that is, a perversion of it: Mayer v. Walter, 64 Pa. 283 [1870]; annotation, 80 A.L.R. 581. ‘An abuse is where the party employs it for some unlawful object, not the purpose which it is intended by the law to effect; in other words, a perversion of it. * * * On the other hand, legal process, civil or criminal, may be maliciously used so as to give rise to a cause of action where no object is contemplated * * * other than its proper effect and execution.’ Mayer v. Walter, supra, 64 Pa. page 285; Johnson v. Land Title B. & T. Co., 329 Pa. 241, 242, 198 A.23 [1938]. Malicious use of civil process has to do with the wrongful initiation of such process, while abuse of civil process is concerned with a perversion of a process after it is issued. All the analogies of an action for a malicious arrest belong to an action for malicious use of civil process. (Emphasis added)

While the distinction between abuse of process and malicious use of civil process are important, they are not germane in this case as under either theory, the appellant must establish that her property was seized or that she was arrested. There is no contention or indication that appellant was arrested so that the essential requirement is that her property was seized. With respect to seizure of the appellant’s property, she contended in her complaint that she was “deprived of her property from March 23, 1978 [the date of the first Supreme Court opinion] to April 23, and thereafter.” In her brief to this court the appellant contends that seizure arose from the following “undisputed facts”:

On October 30, 1978, based on a final order of the Workman’s Compensation Appeal Board (made final by order of the Supreme Court entered March 23, 1978), McGee took judgment against Travelers and issued execution. By the issuance of execution, McGee came into “possession/ownership” of the attached property, to the extent of her interest, and but for the Defendants’ malicious actions involving the judicial process which followed, would have collected the full proceeds due her. (Emphasis added)

The facts concerning the alleged seizure are not in dispute and the court below properly concluded as a matter of law that they did not constitute a seizure of property. The fact that the appellant issued execution against Traveler’s following judgment in the appellant’s favor, did not constitute a seizure of her property. The judgment was paid in full with the appropriate interest. In Blumenfeld v. Shoemaker, supra, it was held that the indexing of a lis pendens against the plaintiff’s property did not establish a lien against the property, and even though it temporarily clouded title it did not constitute seizure of property. In Triester v. 191 Tenants Association, 272 Pa.Super. 271, 415 A.2d 698 (1979) the owners of an apartment building alleged that there had been a seizure of their property by a tenants association whose action in equity resulted in their loss of ownership in the property, their inability to attract condominium purchasers as a result of a cloud on title and loss of rental income as a consequence of a rent strike by the tenants. We held that there was a failure to allege sufficient seizure to constitute a cause of action as the tenants’ losses were incidental. “In determining what is a sufficient seizure for purposes of an action for malicious use of process, it is necessary to distinguish between those losses that result from a direct seizure resulting from the suit, and those that are mere indirect or incidental losses that may be associated with any legal proceeding.” Triester v. 191 Tenants Association, 272 Pa.Super. at 281, 415 A.2d at 703. See also Norcross v. Otis Brothers & Co., 152 Pa. 481, 25 A. 575 (1893) which held that there was no seizure of property by the defendants’ instructions to a third party not to pay a sum of money to the plaintiffs because the money was the subject of a dispute between the plaintiff and the defendant. In Norcross, supra, Otis Brothers & Company had a claim against the Norcross brothers for installation of elevators at a courthouse in Allegheny County. Allegheny County owed money to the Norcross brothers resulting from construction of the courthouse. Otis Brothers gave notice to Allegheny County not to pay the Norcross brothers the amount admittedly owed to the Norcrosses and they had to sue Allegheny County to recover the debt. An action for malicious abuse of civil process was then brought by the Norcrosses against Otis on the basis of the alleged wrongful notice that was given. The Supreme Court held that the action would not lie as there was no abuse of civil process since only a notice had been given which had no legal effect. The court stated at 152 Pa. 487, 25 A. at 576:

It had not the effect of an attachment to tie up the fund, and had the money been attached by legal proceed ings, it would be difficult to see how the plaintiff in the attachment could be mulcted in damages because of the failure of his attachment. That the action did not operate as a legal restraint upon the fund in question is shown by the fact that Norcross Brothers immediately brought suit against the county and recovered. Their loss was the delay of payment which was compensated by interest. (Emphasis added)

The similarity in our case and Norcross v. Otis Brother & Company, supra, is that there was a delay in paying, but eventually payment was made plus interest.

The appellant argues at page 335 of its brief: “The issue in this case may be succinctly stated: Does interference with execution on final judgment, by malicious abuse of court process constitute deprivation of the judgment creditor’s property?” It is not the abuse of process that constitutes the necessary seizure of the property, it is rather the seizure of property that is a prerequisite to establishing abuse of process. In this case, all that the appellees did was to resist execution on their property.

The appellant also relies on Adelman v. Rosenbaum, 133 Pa.Super.Ct. 386, 3 A.2d 15 (1938) to support her contention that opposing execution constitutes a deprivation of property. Adelman involved an action for malicious abuse of legal process against an attorney who allegedly ordered a levy upon the plaintiffs’ household goods knowing the plaintiffs were not the execution defendants named in the suit. This court found that the facts supported the finding of malice on the part of the attorney. The case, however, does not go into the issue of what constitutes seizure of property and does not support the claim that opposing execution constitutes seizure of property.

The appellant also argues that although malicious use of process requires a seizure of property, the tort of abuse of process does not require seizure. Under the law of Pennsylvania, as it existed at the time of the cause of action in this case, a seizure of property was required for both the tort of abuse of process and malicious use of process. Blumenfeld v. R.M. Shoemaker, supra; Ace v. Argonaut Insurance Company, supra.

There was a delay of some nine months in paying the judgment in this case, but appellant was compensated with the payment of interest. The legal proceedings surrounding the attempted execution by appellant did not amount to seizure of her property. The money owed to the appellant did not become her property until it was paid to her.

Entry of summary judgment is proper under Pa.R.C.P. 1035 when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Thorsen v. Iron & Glass Bank, 328 Pa.Super. 135, 476 A.2d 928 (1984). In considering a motion for summary judgment the court must view the evidence in the light most favorable to the non-moving party and enter judgment only if the case is clear and free from doubt. Berardi v. Johns-Manville Corp., 334 Pa.Super. 36, 482 A.2d 1067 (1984); Acker v. Palena, 260 Pa.Super. 214, 393 A.2d 1230 (1978). The court below properly determined as a matter of law that no property of the appellant had been seized and summary judgment was properly entered for the appellees.

Judgment affirmed.

      . In McGee v. L.F. Grammes & Sons, Inc., 485 Pa. at 645, 403 A.2d at 574, Footnote 1, the court stated:
      1. This record presents a despicable example of a blatant misuse of the legal process to avoid payment of a legal obligation.

      . In Blumenfeld v. R.M. Shoemaker, 286 Pa.Super. 543-4, 429 A.2d 656, Judge Hoffman discussed the two causes of action in footnote 3 as follows:
      3. Although litigants frequently alternatively plead causes of action for abuse of process and malicious use of process, our courts have attempted to distinguish the two causes of action.
      The elements of the cause of action for malicious use of process are: the initiation of legal proceedings by the defendant, without probable cause, resulting in the arrest of the plaintiff or the seizure of his property, and ultimately terminating favorably to the plaintiff. See, e.g., Publix Drug Co. v. Breyer Ice Cream Co., [347 Pa. 346, 32 A.2d 413 (1943)] supra. Comparably, if a plaintiff is arrested or his property seized through the use of legal process, and the use of such process is not that for which it has been designed, the plaintiff has stated a cause of action for abuse of process notwithstanding his failure to establish prior termination or the absence of probable cause. See, e.g., Mayer v. Walter, 64 Pa. (14 Smith) 283, 286 (1870). See generally Restatement (Second) of Torts §§ 677, 682 (1977); W. Prosser, Handbook on the Law of Torts §§ 120-121 (4th ed.1971). Consequently, under Pennsylvania law, arrest of the person or seizure of his property is a necessary element of both causes of action. See, e.g., Publix Drug Co. v. Breyer Ice Cream Co., supra; Mayer v. Walter, supra; Shannon v. Barrett, 65 Pa.D. & C.2d 446 (C.P.Delaware Co. 1974). Because appellee Blumenfeld clearly was not arrested, appellees’ contention focuses upon the seizure of property requirement.

      . The Act of December 19, 1980, P.L. 1296, No. 232, 42 Pa.C.S. § 8351(b) deals with wrongful use of civil proceedings and provides:
      (b) Arrest or seizure of person or property not required. — The arrest or seizure of the person or property of the plaintiff shall not be a necessary element for an action brought pursuant to this subchapter.
      Section 2 of the Act provides that it “shall take effect in 60 days and shall be applicable to causes of action accruing thereafter.” (Emphasis added.) The cause of action in the instant case arose prior to October, 1979, and the Act does not apply. "The law of this Commonwealth prior to the passage of the Act of December 19, 1980, P.L. 1296, No. 232 (codified at 42 Pa.C.S.A. §§ 8351-54), required that a plaintiff prove an arrest of the person or seizure of property in order to state a cause of action for either malicious use of process or abuse of process." Ace v. Argonaut Insurance Co., 307 Pa.Super. at 203, 452 A.2d at 1385. While the requirement of either arrest or seizure is eliminated from malicious use of civil process, one or the other must still be present for abuse of process.

      . In Triester v. 191 Tenants Association, supra, the tenants association commenced an action in equity against Treister, et al., and judgment on the pleadings was entered on behalf of Triester, et al., and the case dismissed.

      . In the brief filed on behalf of appellant it is alleged:

        This case represents direct authority that a wrongful levy constitutes a seizure of property, and it constitutes the only appellate word' in Pennsylvania on this subject.16 If this be the law, it follows logically that the reverse is also the law; i.e., interference with a proper levy also constitutes a deprivation of property because in the same sense, it represents loss of dominion over property to which the execution creditor is clearly and presently entitled.
      (Appellants’ brief page 38; Emphasis in original)
      We agree that a wrongful levy may constitute a seizure of property. In this case, the appellees did not wrongfully seek to attach the appellant’s property. The appellees sought to protect their property from attachment by legal process and this simply does not constitute seizure of the appellant’s property.


author: OLSZEWSKI, Judge: KELLY, Judge,

text:
    510 A.2d 827
    Carl J. LEONARD, Appellant, v. Susan LEONARD, for and on Behalf of Lynn LEONARD, Appellee.
    Superior Court of Pennsylvania.
    Argued April 1, 1986.
    Filed June 20, 1986.

      Gifford Cappellini, Wilkes-Barre, for appellant.
    Christopher P. Decker, Wilkes-Barre, for appellee.
    Before McEWEN, OLSZEWSKI and KELLY, JJ.
   OLSZEWSKI, Judge:

Appellant challenges the award entered as the result of the master’s recommendation providing reimbursement for the past college expenses of the parties’ daughter, Lynn, and contribution for further expenses incurred. The issues concern two areas: the settlement agreement signed by Lynn’s parents, and the financial support imposed upon appellant in connection with Lynn’s college education. Because we find no error in the award determination, we affirm the lower court’s order.

Susan and Carl Leonard were married in 1974. Thereafter, Carl adopted Joseph and Lynn, Susan’s two children by a previous marriage. Carl filed for divorce in 1983; soon after, the parties entered into a settlement agreement. In 1984, he left the marital home but continues to pay the mortgage and taxes on the property. Carl is presently on the furloughed list with the D & H Railroad and collects $125 per week unemployment compensation, but occasionally works on a “called as needed” basis. Susan is employed as a legal secretary with a salary of approximately $14,800 annual gross. Both children reside with Susan.

Lynn Leonard is a 19 year old sophomore at Ursinus College. She financed her freshman year through school loans, grants, scholarships and help from her mother. It is undisputed that her father contributed no financial assistance outside of birthday and graduation gifts. It is also undisputed that absent enforcement of the lower court’s support award, appellant would not contribute to Lynn’s sophomore year expenses and these would be satisfied once again through loans, grants, scholarships and help from her mother.

Axiomatic to our discussion is paragraph 7 of the settlement agreement, captioned College Education. Substantively, Carl agreed to pay the undergraduate educational loans for both Joseph and Lynn subject to certain limitations. First, his total share could not exceed $2,500 per year per child. Next, this obligation cannot be for more than four years of education. Third, Carl’s share will be determined in accordance with the child’s grade point average (GPA). The higher the average, the greater the payments assumed by appellant. Analogous to this provision is the restriction that Carl will have no repayment obligation should the G.P.A. fall below 2.0. In this instance, the child will be responsible for the full amount of the loan.

The entire settlement agreement is presently being challenged by Susan in an equity action before the Luzerne County Court of Common Pleas. As such, the validity of this provision does not concern us. With regard to this contract, it has long been the rule in this jurisdiction that parents cannot bargain away the right of support for their children despite the validity and legality of the contract. Oman v. Oman, 333 Pa.Super. 356, 482 A.2d 606 (1984); Commonwealth ex rel. Snively v. Snively, 206 Pa.Super. 278, 212 A.2d 905 (1965); Commonwealth ex rel. Rossi v. Rossi, 161 Pa.Super. 86, 53 A.2d 887 (1947). Notwithstanding this rule, however, we note with great interest that paragraph 7 of the settlement agreement concerns the prospective payments of loans. We find that the issue sub júdice, current contributions for college expenses, is independent of any future obligation.

The next question for our review is the propriety of the award order. Our Court is required to defer to the court below and will not interfere with its determination absent a clear abuse of discretion. Commonwealth ex rel. Cochran v. Cochran, 339 Pa.Super. 602, 489 A.2d 804 (1985); Commonwealth ex rel. Scanlon v. Scanlon, 311 Pa.Super. 32, 457 A.2d 98 (1983); Commonwealth ex rel. Grossman v. Grossman, 188 Pa.Super. 236, 146 A.2d 315 (1958). We must decide if the order can be supported on any grounds and whether there was sufficient evidence on the record to do so. Commonwealth ex rel. Leider v. Leider, 335 Pa.Super. 249, 484 A.2d 117 (1984). At all times, we must keep in mind that a finding of abuse of discretion is not lightly made. Commonwealth ex rel. Leider v. Leider, supra. On the other hand, the discretion to be exercised has been described as a “wide discretion.” Boni v. Boni, 302 Pa.Super. 102, 448 A.2d 547 (1982).

The obligation of support does not fall on the shoulders of just one parent. See Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974). Since the adoption of the Equal Rights Amendment to the Pennsylvania Constitution, support has become a shared responsibility between both mother and father. Conway v. Dana, supra; Commonwealth ex rel. Buonocore v. Buonocore, 235 Pa.Super. 66, 340 A.2d 579 (1975). This does not mean, however, that each parent must contribute equal amounts. See Momjian, Family Law and the Pennsylvania Equal Rights Amendment, 25 Vill. L.R. 677 (1979-1980). The monetary support paid by each is to be discharged in accordance with their capacity and ability. Conway v. Dana, supra.

That support obligations include a college education is not new. Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa.Super. 640, 190 A.2d 182 (1963), quoted the Court in Commonwealth v. Gilmore, 97 Pa.Superior Ct. 303 (1929), when stating “(t)he law, apart from statute has come to recognize that paternal duty involves, in addition to provision for mere physical needs, such instruction and education as may be necessary to fit the child reasonably to support itself and to be an element of strength, rather than one of weakness, in the social fabric of the state.” The Ulmer v. Sommerville Court went on to hold that child support could, under certain circumstances, be extended to include a college education. See also, Curtis v. Curtis, 326 Pa.Super. 40, 473 A.2d 597 (1984). This Court realizes that Ulmer v. Sommerville qualified its holding in the following manner:

The duty of a parent to provide a college education for a child is not as exacting a requirement as the duty to provide food, clothing and shelter for a child of tender years unable to support himself. It is a natural law that a parent spare no personal sacrifice to feed and protect his offspring. Therefore, beyond the barest necessities, a father should be required to sacrifice personal comfort in order to provide the necessities of a child too young to support himself. The same exacting requirement should not be demanded of a father to provide a college education for a child able to support himself.
We are not suggesting that a father should be required to support a child in college only when the father’s income or estate is such that he could do so without making any personal sacrifices. Most parents who send a child to college sacrifice to do so. No mathematical rule can be formulated to determine how extensive the hardship upon a father must be before it will excuse him from supporting a child in college. It must be a matter of judgment in a field where the judgments of sincere and advised men differ materially.

Commonwealth ex rel. Ulmer v. Sommerville, supra, 200 Pa.Super. at 644, 190 A.2d at 184.

There are two major considerations that must be addressed before awarding a child college financial assistance. First, the child must maintain grades sufficient to remain in college and must be willing to continue. Commonwealth ex rel. Grossman v. Grossman, 188 Pa.Super. 236, 146 A.2d 315 (1958). Second, the parent from whom support is sought must have sufficient estate, earning capacity or income to enable him to pay the order without undue hardship. Commonwealth ex rel. Ulmer v. Sommerville, supra; Curtis v. Curtis, supra.

The second requirement has. been the subject of some discussion in previous instances. In conjunction with that consideration the principles have been thoroughly set forth in Commonwealth ex rel. Hagerty v. Eyster, 286 Pa.Super. 562, 429 A.2d 665 (1981).

It is well established in evaluating a parent’s support obligation the lower courts should consider the parent’s income (or potential earning power if there is a disparity between that figure and actual income) and the full nature and extent of the parent’s property interests and financial resources. Commonwealth ex rel. ReDavid v. ReDavid, 251 Pa.Super. 103, 380 A.2d 398 (1977); and see Commonwealth ex rel. Gitman v. Gitman, 428 Pa. 387, 237 A.2d 181 (1967); Shuster v. Shuster, 226 Pa.Super. 542, 323 A.2d 760 (1974); Shaffer v. Shaffer, 175 Pa.Super. 100, 103 A.2d 430 (1954). The parent’s stock holdings, and other investments, at their market value, are among the factors the lower court should consider. Commonwealth ex rel. ReDavid v. ReDavid, supra. And see Commonwealth ex rel. Gitman v. Gitman, supra; Commonwealth ex rel. Gutzeit v. Gutzeit, 200 Pa.Super. 401, 189 A.2d 324 (1963). Quite naturally, the court should consider a parent’s income, from whatever source; included in income should be monies received from the rental of real estate, but that “income” must reflect actual available financial resources and not the oft time fictional financial picture which develops as the result of depreciation deductions taken against rental income as permitted by the federal income tax laws. Commonwealth ex rel. ReDavid v. ReDavid, supra; Commonwealth v. Turnblacer, 183 Pa.Super. 41, 128 A.2d 177 (1956); Commonwealth ex rel. Rankin v. Rankin, 170 Pa.Super. 570, 87 A.2d 799 (1952). Otherwise put, “cash flow” ought to be considered and not federally taxed income. See Commonwealth ex rel. Hauptfuhrer v. Hauptfuhrer, 266 Pa.Super. 301, 310 A.2d 672 (1973). The court must also consider the parent’s interest in jointly held assets, but it may not consider the entire value of joint property as the parent’s. Commonwealth ex rel. Gitman v. Gitman, supra.

Commonwealth ex rel. Hagerty v. Eyster, supra, 286 Pa.Super. at 568-569, 429 A.2d at 668-669.

Our next step is to apply the above principles to the pertinent facts of the case before us. The record easily satisfies the first element. Lynn is a full-time biology major with a first semester average of 80.68 and a second semester average of 84. (R.R.182). In addition, she has received a merit scholarship to be applied towards her tuition. (Master’s Report, p. 18). It is also clear that not only did she intend to return to Ursinus but she also planned on taking a course over the summer. We therefore have no doubt that part one is met.

After a careful review, we find that the second element is also sufficiently satisfied. Carl admitted several detrimental factors: that contributing to Lynn’s college education was an undue hardship only because all assets were frozen; that he volunteered to be placed on furlough because he did not want to commute to the D & H Railroad’s new location; the determination of the extent of his assets; and that he paid no support for Lynn.

We agree with the master and the lower court that appellant could be making over $30,000 should he choose to do so and that it is the earning capacity that we must consider. Commonwealth ex rel. Hagerty v. Eyster, supra. In addition, appellant receives income from six rental properties, five of them multi-family dwellings. It is immaterial that his tax forms show a loss on those properties as a result of tax breaks and depreciation allowances. Commonwealth ex rel. Hagerty v. Eyster, supra. Furthermore, appellant’s list of additional income is extensive. He receives significant sums of interest income as well as tax refunds. He has several IRA accounts and also has access to a money market account and a mutual fund account, all of which he did- not know the value. Clearly, appellant has the means to help his daughter through college.

Last is appellant’s argument that Susan must also contribute to Lynn’s college education. Appellant specifically disagrees with the following statement taken from the lower court: “There is no need to force the mother to recognize her responsibilities to her child.” (page 3 of lower court opinion). This statement, however, was taken out of context. The court observed that Lynn did not bring an action against her mother since her mother has been providing financial assistance to her. Therefore, since her mother has already recognized her responsibility of support, the court need not force her to do so.

Once again, in light of the record, we agree with the lower court. Susan has continually aided her daughter’s quest for a college education. She contributed basic spending money for laundry, books, lab fees and parties. In addition, she assumed the expense of transportation from West Wyoming to Ursinus College and back. As such, it is error for appellant to argue that Susan does not support Lynn.

Order affirmed.

KELLY, J., files concurring statement.

KELLY, Judge,

concurring:

I concur, and would add to the majority’s analysis as follows. The appellant argued that the award was excessive in that the Court failed to consider that his daughter was receiving financial assistance in the form of grants and loans which significantly reduced her real financial need.

In Miller v. Miller, 353 Pa.Super. 194, 197, 509 A.2d 402, 404 (1986) this Court stated:

It is well established that a parent who has sufficient assets and earning capability to furnish support without undue hardship for a child’s college education is charged with a duty to do so. Sutliff v. Sutliff, 339 Pa.Super. 523, 489 A.2d 764 (1985). It is concommitantly true that independent resources of a college age child may be considered in determining the child’s need for support. Id., citing Devergilius v. Devergilius, 329 Pa.Super. 434, 478 A.2d 866 (1984). See also Commonwealth ex rel Platt v. Platt, 227 Pa.Super. 423, 323 A.2d 29 (1974). That is not to say that a child must always contribute as much as possible to the payment of his or her educational expenses. Clearly, if a parent can meet the support needs of a college-age child with ease, a court is free to impose a complete obligation.

353 Pa.Superior Ct. at 197-98, 509 A.2d at 404. (Emphasis added).

Likewise, in Commonwealth ex rel. Hanerkam v. Hanerkam, 221 Pa.Super. 182, 289 A.2d 742 (1972), this Court stated:

The potential availability to students of loans, grants, or self-help by part-time or summer employment does not negate the duty of the parent but does merit cognizance thereof when a serious question of undue hardship is presented.

221 Pa.Superior Ct. at 186, 289 A.2d at 744. (Emphasis added).

However, in the instant case, the appellant has failed to establish any undue hardship caused by the support order. To the contrary, the appellant has ample assets and earning capacity to shoulder the minimal burden imposed.

It should be emphasized that parents bear the primary financial responsibility for their children’s reasonable college expenses. College grants and student loans are secondary sources of financial aid, which are intended to assist those students whose parents cannot afford to bear the full cost of their children’s college expenses.

Moreover, governmental and private sources of financial aid are not unlimited. Real need of those dependant on financial aid already greatly exceeds the available resources. Consequently, this Court must not allow a parent, who can afford to meet his financial responsibilities, to shift his burden to secondary sources of financial aid. To do so would reward the appellant’s failure to meet his legal obligations and would, in the aggregate, deny truly needy students access to limited resources.

      . There was some reference in the record and master’s report that appellant is once again living in the marital home. This, however, has no bearing on the issues at hand.

      . The master’s hearing was on May 25, 1985. At that time Lynn was eighteen and had finished her freshman year at Ursinus. Also, at that time she had every intention of continuing her education.

      . Equity action filed to No. 4-E of 1985.

      . These circumstances are discussed infra.

      . This is based on a 100% scale.

      . The assets of the parties were frozen in December 1984 by order of the court. A subsequent court order in May 1985 before the master’s hearing lifted this freeze, thereby making the assets available.

      . There was considerable testimony as to appellant’s reasons for not making the approximately one and one-half hour drive. It is not necessary for us to go into a great discussion of those reasons.

      . It should be noted that it was incumbent upon the appellant to establish “undue hardship." Though I have no doubt as to the adequacy of his financial resources, I would add that his failure to provide adequate disclosure regarding the value of significant financial assets precludes a finding of undue hardship in any case.

      . The Master indicated that the appellant’s failure to support his daughter resulted in the daughter having to accumulate three thousand five hundred dollars ($3,500.00) in debt each year to pursue her education. If there is undue hardship in this case it is that imposed on the daughter by her father, the appellant.
      The Master also indicated that she was only receiving college grants because of the destitute situation her father, the appellant, has placed her in. (Master's Report and Recommendation at 24).


author: POPOVICH, Judge: MONTEMURO, Judge,

text:
    510 A.2d 1235
    COMMONWEALTH of Pennsylvania v. Clinton DUDLEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1985.
    Filed June 5, 1986.
    Reargument Denied July 2, 1986.

      Harold J. Funt, Allentown, for appellant.
    John J. Walden, Assistant District Attorney, Norristown, for Com., appellee.
    Before CIRILLO, MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence which was imposed upon appellant, Clinton Dudley, after he was convicted by a jury of rape, simple assault, and indecent assault. We must reverse and remand for a new trial for the reasons herein given.

Appellant raises the following issues: (1) whether the trial court erred in refusing to allow testimony regarding the victim’s psychiatric history; (2) whether the trial court abused its discretion in denying defense counsel’s motion to excuse a juror and/or to grant a new trial; (3) whether the trial court erred in permitting the prosecution to present testimony regarding appellant’s extradition from the state of Ohio; (4) whether reversible error was committed when the prosecutor elicited information regarding the use of the National Crime Information Center; (5) whether the trial court erred in allowing the prosecution to present a police detective on rebuttal; (6) whether the trial court erred in denying appellant’s request for the missing witness instruction; and, (7) whether the sentence was excessive because the trial court failed to give due consideration to the evidence which was presented on appellant’s behalf. Appellant contends that trial counsel was ineffective for: (1) failing to cross-examine the victim regarding the fact that she had been under the care of a psychiatrist within seven (7) months of the date of trial when he knew that the nature of her mental derangement was connected directly with the subject of the litigation and when he further knew that impeachment of her credibility was vital to the appellant’s defense; (2) for failing to suppress evidence introduced by the prosecution regarding a statement attributed to appellant that he “hated whites”; (3) for failing to object to the prosecution’s rebuttal witness and for waiving appellant’s right to raise the issue in post-verdict motions; (4) for failing to object to a prejudicial remark which was made by the prosecutor and for waiving appellant’s right to raise the issue in postverdict motions; (5) for failing to question a detective and/or the appellant properly about an unidentified detective who was present in the squad room when the appellant was interrogated which permitted the trial court to rule against appellant on the missing witness instruction; (6) for failing to object prior to trial to the validity of the information because the information contained only a rubber-stamped facsimile of the signature of the district attorney; (7) for failing to object to the prosecution’s motion to amend the information by adding a charge of indecent assault; and (8) for failing to advise the appellant that he was under no legal requirement to take the witness stand and to testify at trial.

Because we find that the trial court abused its discretion in refusing to allow testimony regarding the victim’s psychiatric history, we must grant appellant a new trial.

The record sets forth the following scenario: viduals discussed the possibilities of a magazine sale, the conversation turned to a more personal nature with appellant agreeing to return later that day to the victim’s home. Although appellant did not call, he did arrive at the victim’s apartment at 11:30 p.m. Appellant took off his coat and the parties engaged in further conversation.

On the afternoon of August 9, 1980, appellant, a licensed “door to door” magazine salesman, knocked at the residence of the victim, Priscilla Cumberland. After the indi-

At this point, the facts are in dispute. According to the victim, the appellant led her into the bedroom and raped her. On the other hand, the appellant contends that the victim consented to the sexual intercourse, and that the victim became upset when appellant refused to give her money upon the appellant’s departure.

There were no other eyewitnesses to the crime. The physical evidence which was introduced at trial established that semen was present on the victim’s sheets and on the victim’s sexual organs. However, there was no evidence of trauma on the victim’s sexual organs. Also, the evidence indicated that there was a cut which measured one centimeter in length on the victim’s lip.

Both before and during the trial, defense counsel sought to review the records of Muhlenberg Medical Center and Allentown Hospital because the victim had been hospitalized at these institutions for psychiatric treatment within a few months of the incident. The victim had been treated at Muhlenberg Medical Center from October 18, 1980 through November 11, 1980 and at Allentown Hospital one month after the incident.

The trial court deferred a ruling on defense counsel’s access to the hospital records until the time of trial. However, at the trial, defense counsel stated that a psychiatrist should be called “for an in camera hearing to determine the relevancy of the records and whether or not there was— well, two things — whether or not she would be competent and whether or not her state of mind [which was] related to her psychiatric condition would be relevant to what happened on the date in question”. Trial Transcript at 10.

The trial court eventually ruled that defense counsel could not introduce the testimony of the psychiatrist who treated the victim after the incident.

The trial court concluded that the psychiatric testimony “would really serve no purpose other than to blacken the reputation of the victim.” Trial Transcript at 305. In its opinion, the trial court stated that “[t]he defense did not allege, nor does the record reflect, that the victim in this case ever denied having received psychiatric treatment in the past or denied ever having exhibited “seductive behavior [at the hospital]”. Trial Court’s Opinion at 4. The appellant contends that the victim’s periods of hospitalization were relevant and admissible in this case. We agree.

This Court recognizes that “treatment in a mental hospital within seven months of the date of trial is near enough to raise a question for the jury as to the effect of the mental disorder on [a witness’s] credibility”. Commonwealth v. Chuck, 227 Pa.Super. 612, 323 A.2d 123 (1974), petition for allowance of appeal denied July 22, 1974. Accord Commonwealth v. Duffy, 238 Pa.Super. 161, 175, 353 A.2d 50, 57 (1975), petition for allowance of appeal denied May 21, 1976. We also have said that “the fact that the witness was mentally competent to testify does not mean that evidence as to his mental disability should be excluded”. Id.

The guidelines which we have set forth in examining this issue have been summarized in the following manner:

The crucial determination that a trial judge must make in ruling on the admissibility of evidence of a witness’s mental instability is whether it is related to the subject of the litigation or whether it affects the testimonial ability of the witness so as to impeach him.[*] The evidence can be said to affect the credibility of a witness when it shows that his mental disorganization in some way impaired his capacity to observe the event at the time of its occurrence, to communicate his observations accurately and truthfully at trial, or to maintain a clear recollection in the meantime. See Commonwealth v. Repyneck, 181 Pa.Super. 630, 124 A.2d 693, allocatur refused, 181 Pa.Super. xxiv (1956).

Commonwealth v. Butler, 232 Pa.Super. 283, 287, 331 A.2d 678, 680 (1974). (Footnote included).

According to the testimony which was produced at an evidentiary hearing, the victim had hallucinations and had suffered a psychotic episode approximately two months after the incident and approximately six months before the trial. According to the psychiatrist, the victim “has an hysterical personality which means when she gets overwhelmed or needs more attention, and [sic] she does have childish attention-seeking behavior ... then she has fainting spells”. N.T. 10/10/84 at 21-22.

Because the victim’s hospitalizations occurred within seven months of the trial and also because the victim’s mental instability “shows that [her] mental disorganization in some way impaired [her] capacity to observe the event at the time of its occurrence, to communicate [her] observations accurately and truthfully at trial, or to maintain a clear recollection in the meantime, this evidence was relevant and should have been admitted at trial.” Commonwealth v. Butler, 232 Pa.Super. at 287, 331 A.2d at 680.

Also, because impeachment of the victim’s testimony was vital to the appellant’s defense, the victim’s recent periods of hospitalization were relevant. Commonwealth v. Towber, 190 Pa.Super. 93, 97, 152 A.2d 917, 920 (1959). The record also indicates that the victim was hospitalized and/or treated at the emergency room at Muhlenberg and Allentown Hospitals on other occasions during 1978 and 1984. On remand, the trial court should determine whether these periods of hospitalization are admissible in view of the guidelines which have been set forth in Commonwealth v. Butler, Id.

Appellant also contends that there were specific instances during her hospitalization in which the victim exhibited seductive behavior. This issue appears to be moot because the record establishes that there were no specific instances in which the victim acted overtly familiar with the male patients. See Commonwealth v. Thomas, 346 Pa.Super. 11, 498 A.2d 1345 (1985).

Accordingly, the judgment of sentence is reversed and a new trial is granted.

MONTEMURO, J., files a dissenting opinion.

MONTEMURO, Judge,

dissenting:

I dissent. Commonwealth v. Butler, 232 Pa.Super. 283, 331 A.2d 678 (1974), upon which the majority relies heavily for its conclusion, also requires that to inject at least a semblance of relevancy into its admission, testimony with regard to a witness’ psychiatric history contain some specific indication that an illness existed at the time of and somehow influenced the events of the date in question. Here there is none; the treatment, occurring subsequent to the rape, could as well have been necessitated by the attack as causally connected to it. In fact the psychiatrist, whose evidence the majority find so vital, at the ineffectiveness of counsel hearing directly contradicted the offer of proof for her putative trial testimony. There is no reason to reverse on this basis, and, since the majority somewhat quixotically finds the issue moot, the necessity for remand is obviated.

I would accordingly affirm.

      . The dissenting opinion of Montemuro, J. overlooks the fact that there are two aspects to the claim which appellant raises. The first aspect of the issue is whether the fact that the victim was hospitalized at all within seven months of the trial is relevant to the issue of the witness’s credibility. The second aspect of the issue is whether certain "sexual” behavior which occurred during a period of hospitalization should have been admitted.
      The second aspect of this issue appears to be moot and is more akin to an argument under the Rape Shield Law. 18 Pa.C.S.A. § 3104. See Commonwealth v. Majorana, 503 Pa. 602, 470 A.2d 80 (1983).
      However, we find that the fact that the witness was hospitalized for hallucinations recently near the time of the trial and the incident in question raised enough of an issue for the jury to consider in examining a witness’s credibility.
      Additionally, the dissenting opinion seems to overlook the fact that on remand, the trial court will be given an opportunity to examine whether the witness's period of hospitalization which occurred in 1978, which was two (2) years before the incident in question, should be admissible.

      ] Pennsylvania’s position on the introduction of evidence of mental imbalance to discredit a witness who is admittedly competent to testify was first stated in dicta in Commonwealth v. Kosh, 305 Pa. 146, 157 A. 479 (1931): “Mere mental derangement on some matter not connected with the subject of the litigation and not affecting the testimonial ability of the witness is not even to be considered by the jury in determining the credibility of the witness.” Id.., 305 Pa. at 156, 157 A. 482-483.
      This statement was later reaffirmed as the general rule in Commonwealth v. Towber, 190 Pa.Super. 93, 152 A.2d 917 (1959). Despite the recognition of a general rule of inadmissibility where the mental unsoundness is unrelated to the matter at hand, this Court in Towber went on to find reversible error where evidence of a psychopathic mental disorder requiring commitment 7 months prior to a burglary trial, offered to impeach an important witness, was refused.


author: BROSKY, Judge: TAMILIA, Judge,

text:
    510 A.2d 1239
    Walter F. RIESS, Jr., Appellant v. Theresa DE LUCA.
    Superior Court of Pennsylvania.
    Argued June 4, 1985.
    Filed June 6, 1986.

      Richard A. Mitchell, Media, for appellant.
    Heather K. Douglass, Drexel Hill, for appellee.
    Before WICKERSHAM, BROSKY and TAMILIA, JJ.
   BROSKY, Judge:

This appeal is from the order requiring appellee to place $10 a week into a bank account for the educational needs of the parties’ two minor children. Appellant contends that: (1) the trial court erred in refusing to follow the guidelines for support that have been set forth by the Pennsylvania Supreme Court; (2) the trial court erred in questioning appellant’s candor and finding that appellant was attempting to punish appellee for exercising her right of visitation; (3) the record contains ex parte documents prejudicial to appellant. We agree with appellant’s first contention and, accordingly, vacate the order of the trial court and remand this case for a recalculation of the parties’ support obligations.

The parties to this action were married in January of 1970. Two children were born of this marriage, Jacquelyn, born July 29, 1971, and Michelle Lynn, born September 7, 1974. The parties were divorced in September of 1981, at which time they both resided in New Jersey. Prior to the entry of the divorce decree, the Superior Court of Burlington County, New Jersey, had issued an order awarding custody of the children to appellant. As part of the divorce decree, the New Jersey court ordered appellee to put $10 per week into a bank account for the educational needs of the children.

Subsequently, the parties moved to Pennsylvania and, in June of 1982, appellant filed a support action in Philadelphia County. This action was dismissed for reasons not revealed by the record.

On March 2, 1984, appellant filed a complaint for support in Delaware County. A hearing was then held before a master who recommended the entry of a support order in the amount of $65 per week. Following entry of the recommended order, appellee filed a timely appeal, and a hearing de novo was held before the trial court on June 13, 1984. Subsequently, appellee petitioned for a rehearing in order to have the opportunity to introduce additional evidence in light of the Supreme Court’s opinion in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). A rehearing was held on November 1, 1984 and, on December 19, 1984, the lower court entered an order requiring appellee to pay $10 per week into a bank account for the educational needs of the children. This appeal timely followed.

Appellant first argues that the court below erred in refusing to follow the guidelines set forth in Melzer, supra, for the calculation of a parent’s support obligation. We agree.

In Melzer, our Supreme Court set forth uniform guidelines for the calculation of child support. It held that in making such a calculation, the hearing court must determine: (1) the reasonable expense of raising the children involved; and (2) the respective abilities of the parents to support their children. After it has made these determinations, the court is to calculate each parent’s total support obligation in accordance with the formula set forth in Melzer. Finally, once each parent’s total support obligation has been defined, the hearing court must determine what portion of that obligation may be offset by support provided directly to the children. The total support obligation may be offset only by such voluntary expenditures as actually satisfy the obligation of reasonable and necessary support. Id. Although the figure thus arrived at for the amount of support which must be satisfied by way of support payments to the other parent is not required by Melzer to be mechanically adhered to by the hearing court, it must be determined and used by the court as a framework for its decision.

In the instant case, the court below made none of the determinations mandated by Melzer. We must summarily reject appellee’s argument that the hearing court did, in fact, apply Melzer, but that its statement that “we are convinced that the Respondent [appellee] is paying her fair share towards the support of the children” was equivalent to a finding that she had no ability to pay any amount in addition to the amounts she was already paying. We are hardly persuaded that the hearing court’s conclusory statement that appellee was paying her fair share was equivalent to a finding that her income available for support, as defined in Melzer, was zero. Moreover, appellee’s argument flies in the face of the trial court’s express statement in its opinion that:

We are not unmindful of the recent Superior [sic] Court decision of Melzer vs Witsberger, 480 A.2d 991, [505] Pa. [462] (1984). However, we do not feel that the rationale is approximate [sic] here. First, there [sic] is a Petition for an increase in support as there curently exists a New Jersey Court Order which is being obeyed. Secondly, the rationale of Melzer, supra, would not take into consideration the $35.00 per week that the mother currently contributes, nor would it include the $10.00 per week Order currently being paid.[]

Since the court below did not follow the dictates of Melzer, we will remand this case for the court to make determinations necessary to an application of the Melzer formula, to determine whether and by how much the support obligation arrived at by that formula should be offset by appellee’s voluntary contributions, and to use the amount of support thus arrived at as a framework for its decision. It is so ordered.

Order vacated and case remanded for proceedings consistent with this Opinion.

TAMILIA, J., files a concurring opinion.

TAMILIA, Judge,

concurring:

I concur in the result, agreeing that the court failed to follow the guidelines established in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984). Although a remand is appropriate, in light of the lower court’s failure to understand the applicability of Melzer to the present facts, I think it would be instructive to both fully explain our application of the Melzer guidelines to the specifics of this case and discuss the resolution of problem areas where they arise.

The premise on which a determination of support obligation rests is that parents must share, based on, inter alia, their respective resources, the expenses of raising their children. Melzer, supra. The obvious difficulty lies in examining all pertinent factors to arrive at a number appropriate and equitable to payor/parent and to the child.

In this support proceeding, the only amounts that have been established of record, upon which there can be a determination as to the father’s ability to pay, according to the Melzer guidelines, are gross income of $43,000 yearly and net income of $1,989 monthly. The income of appellant’s wife ($5,200 per year net), must likewise be considered, providing a gross income of $48,200 upon which to calculate support as to the father’s share. The amount of $27,000 has been established as the mother’s gross income for support purposes.

Support obligations are not, however, based on gross income, but must be determined from income available for support, which is the net income less the reasonable living expenses of the parents.

Another fact which must be established is the needs of the children. Failing to establish a dollar amount for the childrens’ needs, any attempt to apply the Melzer formula would be fruitless, and the final determination of the respective support obligations would be without a rational basis. In this case, the needs, as expressed by the father’s figures, amounted to $222 per week. I believe the figure of $222 to be somewhat inflated. The share attributed to a ten year old and a thirteen year old for the mortgage payment ($92.30 per week), utilities ($13.45 per week), automobile ($20 per week), appear out of line with the portion which would be actually consumed by the children. However, the parties agreed this was a reasonable estimate of the needs of the children and because of the substantial income available to the parties and their standard of living, I would accept that figure.

A calculation of the support contribution from the mother, if she has the ability to pay, should be based on reasonable extrapolation of the $222 amount. A $143.83 monthly expenditure for the children, alleged by the mother/appellee, was regarded by the court as her fair share of their maintenance, given the disparity in the parties’ incomes. In addition the mother alleged an amount of $40 per month for gifts for the children and a $10 per week contribution to an educational fund based on a New Jersey Court Order. The mother’s testimony indicated she contributed this amount primarily during the period of six weeks partial custody during the summer and on weekly visitations.

The $143.83 and $40 per month for gifts paid by appellee, which is in effect a voluntary contribution along with the $10 per week to the educational fund, do not meet the requirement that the custodial parent have a predictable and consistent flow of (supplementary) revenue. The determination necessary concerning the offset of $143.83 and $40 expended monthly for the children, is whether these expenditures actually provide for necessaries. The lower court failed to make this finding. While Melzer does acknowledge that a portion of a parent’s support obligation may be satisfied by the provision of support directly to the children, here, the total contribution by appellee would be provided on a direct basis. The trial court abused its discretion in finding that expenditures of this type totally satisfied appellee’s support obligation.

Although appellee claims that the dispersion of these sums is necessary at least in part because of appellant’s derelictions in his care of the children, the question of if, or how well he is meeting their needs is one to be resolved in a custody proceeding.

With respect to the weekly payment of $10 for the educational needs of the children ordered by the New Jersey Court, it is apparent that the trial judge was honoring the intention of the New Jersey court. However, since both parties now reside in Pennsylvania, New Jersey has no further interest in or control over these matters. Further, it is preferable that the money be readily available for the children’s immediate use, as such accumulations as the Order contemplates are, like appellee’s other “children’s expenses”, not an acceptable substitute for support.

It is axiomatic that a support award must be neither confiscatory nor punitive, Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974); Sutliff v. Sutliff, 339 Pa.Super. 523, 489 A.2d 764 (1985); Shapera v. Levitt, 260 Pa.Super. 447, 394 A.2d 1011 (1978), and that allowance for reasonable living expenses must not be overlooked. Melzer supra. On the income established on the record in court, applying the Melzer formula to obtain the ratio each parent should contribute, I would conclude the following.

The yearly net income of the father is $23,868 as established from the figure of $1,989 per month testified to on the record (incorrectly stated as bi-weekly which would have provided a net income of $51,714, the amount erroneously concluded by the trial judge). Adding his wife’s net income of $5,200, I derive a total net income of $29,068. The second wife’s income is included as she appears to be voluntarily contributing to the household expenses, and on balance, appellant is paying the major share of those expenses. See Roberts v. Bockin, 315 Pa.Super. 52, 461 A.2d 630 (1983); Astillero v. Shotwell, 294 Pa.Super. 222, 439 A.2d 831 (1982).

The yearly net income of the mother, allowing one-third for deductions from a gross salary of $27,000, equals $18,-000. From the expense statements provided in evidence by the parties, excluding any expenses attributable to the children from both statements and disallowing amounts that are discretionary and appearing to be excessive ($150 for father per month — $245 for mother per month), the father’s monthly expenses (including those for his present wife) total $1,095, the mother’s, $1,072.

For the father subtracting $1,095 from his net income of $2,422 per month leaves $1,327 available for support. Subtracting $1,072 from $1,500 net income of the mother, leaves $428 available for support. Applying the Melzer guidelines, I arrive at an equation as follows:

For the appellee’s child support obligation:

$428 (M) $428(M) + $ 1327(F) (needs $222 weekly) $ 54.14

For the appellant’s obligation:

$1327 (F) $428(M) + $ 1327(F) (needs $222 weekly) $167.86

The Melzer case does not require mechanical adherence to the formula and although it is a basic guide, there are other considerations which cannot be ignored. In this case, while the appellant's wife’s income should be considered in determining the amount available to maintain that household, Melzer, supra, where, as here it has been included in toto, some consideration must be given to the fact that she is not legally responsible for the children’s support. Common wealth ex rel. Hagerty v. Eyster, 286 Pa.Super. 562, 429 A.2d 665 (1981); Cf. Roberts and Astillero, supra. Also, the mother’s expenses are virtually equal to those of the father and it appears she can exercise greater frugality without sacrificing her standard of living thereby permitting her to share to a greater extent in the support of her children. For these reasons, while the strict formula would require that she contribute $54 per week to her childrens’ support, I believe a more just and reasonable contribution would be $60 per week. The amount of $85 per week suggested by appellant is based on gross income without consideration of the appellant’s wife’s income and the respective expenses of the parties and is legally unsustainable. I recognize that six weeks partial custody during the summer will shift the burden considerably to support the children during that period, while certain underlying expenses continue unabated with the father. I would, therefore, set the order at $30 per week for the six week period.

I think this application of the Melzer guidelines to the facts of the present case should assist the lower court in its understanding of the process to be employed when dealing with a petition for support. Flexibility exists in the final formulation of the support Order where factors relevant to the case at hand are evaluated to determine if adjustments should be made to the support obligation as calculated under the Melzer formula.

I think it is also important to note the enactment of H.B. 98 as amended on October 8, 1985 effective January 6, 1986, which amended Title 23 Pa.C.S.A., specifically adding § 4322 which provides:

§ 4322. Support guidelines.
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, 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.

On remand I would instruct the lower court that it should incorporate the considerations set forth in the. statute along with the Melzer guidelines in formulating its support Order.

The bench and bar should also be alerted to the passage of this legislation and the necessity of its incorporation into support proceedings. The impact of the new legislation on Melzer will only become apparent after the courts have had an opportunity to develop the guidelines called for in the statute and apply them to specific situations.

      . While we believe Melzer would apply to the instant case even if the order of the New Jersey court were considered to be a support order, our review of the record indicates that there is not sufficient support in the record for a finding that the New Jersey order requiring appellee to put $10 per week into a bank account for the educational needs of the children was, in fact, an order which determined the support obligations of the parties. We would also reiterate the point that Melzer does allow credit to be given for a parent’s voluntary contributions as long as those expenditures satisfy the obligation of reasonable and necessary support. We note that the trial court made no findings as to whether appellee’s expenditures satisfied this criterion.

      . In determining appellant’s ability to support his children, i.e., his net income less his reasonable living expenses, the trial court should be aware that its finding that appellant earns $43,000 a year and its finding that appellant earns $1,989 every two weeks are inconsistent.

      . In light of our disposition, we do not believe it is necessary to address issues (2) and (3). However, as to issue (2), it would appear that the trial court made a proper credibility determination.

      . The Melzer formula provides:
      A s* amount available to parent A; B = amount available to parent B
      A , total support m kind actual support ~r" — ~ X support needs = — .1 . — , ,. c , A h B obligation oi A contribution obligation or A
      B , total support in kind _ actual support A -í B X suPPori nee s obligation of B contribution obligation of B

      . Appellant Reduced
      Car expense $150 to $100 = $ 50
      Entertainment $100 to $ 50 = $ 50
      Gifts — Miscellaneous $150 to $100 = $ 50
      Total $150
      Appellee Reduced
      Legal fees $200 to $100 = $100
      Car repairs $120 to $ 50 = $ 70
      House repairs $ 43 to $ 18 = $ 25
      Food/supplies $260 to $210 = $ 50
      Total $245

      . This order is actually only §4.31 per week more than appellee alleges she is presently paying for the children if we consider the §143 monthly (in-kind support), §40 monthly (gifts) and §10 weekly (educational fund). This averages §52.23 per week, whereas our order comes to §56.54 on an average weekly basis.


author: PER CURIAM:

text:
    510 A.2d 1244
    COMMONWEALTH of Pennsylvania v. Kevin DREW, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 5, 1986.
    Filed June 12, 1986.

      Francis E. Gleeson, Jr., Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before MONTEMURO, HOFFMAN and HESTER, JJ.
   PER CURIAM:

This is a direct appeal from judgment of sentence for robbery and related offenses. We must quash the appeal, for appellant’s brief is in almost total noncompliance with the rules related to form and content of appellate briefs.

Pennsylvania Rule of Appellate Procedure 2101 states that if the defects in the brief of the appellant are substantial, the appeal may be quashed. In this instance, the defects are indeed substantial. Appellant’s counsel has made no serious attempt to comply with the following Pennsylvania Rules of Appellate Procedure:

2111(a) Brief of the Appellant — General rule
2114 Statement of Jurisdiction
2115 Order in Question
2116 Statement of Questions Involved
2117 Statement of the Case
2118 Summary of the Argument
2119(a) Argument — General rule
2119(b) Citations of authorities
2119(c) Reference to record
2119(d) Synopsis of evidence
2174(a) Table of contents
2174(b) Table of citations

As in Commonwealth v. Taylor, 306 Pa.Super. 1, 2, 451 A.2d 1360, 1361 (1982), the defects “are not mere matters of form or taste, [but] are the complete absence of those material sections of the brief which facilitate appellate review,” so that “we find our ability to conduct appellate review severely impaired.” As we stated in Commonwealth v. Sanford, 299 Pa.Super. 64, 67, 445 A.2d 149, 150 (1982), “We decline to become appellant’s counsel. When issues are not properly raised and developed in briefs, when the briefs are wholly inadequate to present specific issues for review, a court will not consider the merits thereof.” In this instance, the total inadequacy of appellant’s brief prevents us from ascertaining whether there is any possible merit to his appeal.

Pursuant to Pa.R.A.P. 2101, we have not hesitated to quash appeals for substantial noncompliance with these requirements. Commonwealth v. Jones, 329 Pa.Super. 20, 477 A.2d 882 (1984); Commonwealth v. Davis, 309 Pa.Super. 506, 455 A.2d 725 (1983); A.M. Skier Agency, Inc. v. Pocono Futures, Inc., 308 Pa.Super. 481, 454 A.2d 637 (1982); Commonwealth v. Taylor, supra; Commonwealth v. Sanford, supra; Commonwealth v. Gigli, 287 Pa.Super. 347, 430 A.2d 319 (1981); Commonwealth v. Holcomb, 261 Pa.Super. 532, 396 A.2d 29 (1978); Commonwealth v. Wyant, 254 Pa.Super. 464, 386 A.2d 43 (1978). See also Commonwealth v. Jackson, 494 Pa. 457, 459 n. 1, 431 A.2d 944, 945 n. 1 (1981); Big Knob Volunteer Fire Co. v. Lowe & Moyer Garage, Inc., 338 Pa.Super. 257, 260 n. 1, 487 A.2d 953, 955 n. 1 (1985); Commonwealth v. Stoppie, 337 Pa.Super. 235, 486 A.2d 994 (1984); Commonwealth v. Colon, 317 Pa.Super. 412, 464 A.2d 388 (1983); Commonwealth v. Casner, 315 Pa.Super. 12, 17 n. 2, 461 A.2d 324, 326 n. 2 (1983); Ewing v. Oliver Realty, Inc., 305 Pa.Super. 486, 491 n. 2, 451 A.2d 751, 754 n. 2 (1982); In re Wilson, 303 Pa. Super. 326, 328 n. 2, 449 A.2d 711, 712 n. 2 (1982); Commonwealth v. Gates, 295 Pa.Super. 213, 215 n. 2, 441 A.2d 425, 426 n. 2 (1982); Commonwealth v. Rose, 265 Pa.Super. 159, 166 n. 6, 401 A.2d 1148, 1152 n. 6 (1979); Wicker v. Civil Service Comm’n, 74 Pa.Cmwlth. 548, 460 A.2d 407 (1983).

Appeal quashed.


author: OLSZEWSKI, Judge:

text:
    510 A.2d 1246
    VENDALE COAL COMPANY, INC., Appellant, v. VOTO MANUFACTURING SALES COMPANY, Bethlehem Steel Corporation, Pittsburgh Contractors Equipment Company and Clark Equipment Company, Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 18, 1986.
    Filed June 11, 1986.

      Daniel R. Gigler, Pittsburgh, for appellant.
    Howard W. White, Jr., Franklin, for Bethlehem Steel, appellee.
    Eric N. Anderson, Pittsburgh, for Clark Equipment, appellee.
    John H. Smith, Pittsburgh, for Pittsburgh Contractors, appellee.
    Before BROSKY, OLSZEWSKI and POPOVICH, JJ.
   OLSZEWSKI, Judge:

This matter is before this Court on appeal from an order of the lower court granting appellees’ motions for summary judgment and certifying the issues raised below as appeal-able pursuant to 42 Pa.C.S.A. Sec. 702(b). The relevant events giving rise to this appeal occurred on two separate occasions. On September 29, 1979 and later on March 9, 1980, appellant Vendale Coal Company, Inc., which is involved in surface mining operations, was operating its drag-line when the boom cable snapped causing damages in excess of $69,000 to the component parts of the dragline. Consequently, appellant commenced two separate lawsuits against each of the four appellees; however, these actions were later consolidated for trial. In Counts I and II of its complaint, appellant stated causes of action for breach of implied warranties of merchantability and fitness for a particular purpose while Counts III and IV, respectively, stated claims for strict liability and negligence. Essentially, appellant alleged that the dragline, manufactured by Clark Equipment Company and distributed by Pittsburgh Contractors Equipment Company, was defectively designed and that this design caused the wire cable to break prematurely. In addition, appellant alleged that the wire cable used in the dragline operation, which was manufactured by Bethlehem Steel Corporation and distributed by Voto Manufacturing Sales Company, was defective. As a result of this defect, the cable broke causing a substantial amount of damage to the dragline.

In response to appellee Pittsburgh Contractors’ motion for summary judgment, the trial court found that Counts I and II of the complaint did not set forth a cause of action since the implied warranties were expressly excluded from the purchase agreement for the sale of the dragline. The court further held that Count III did not set forth a cause of action since appellant, acting as a commercial buyer, was not entitled to recover economic losses through tort claims. This order granting summary judgment in favor of appellee Pittsburgh Contractors was entered on March 15, 1985. Contrary to the arguments of the remaining appellees, a review of the record reveals that no other judgment, similar to the one outlined above, was entered on the record with respect to these parties. Consequently, our decision in this case is only applicable to appellant and appellee Pittsburgh Contractors. See Pa.R.App.P. 301. On April 10, 1985, following appellant’s request, the trial court certified the present appeal from the interlocutory orders pursuant to 42 Pa.C.S.A.Sec. 702(b). The notice of appeal was filed on May 2, 1985.

On procedural grounds, the appeal was challenged for the following reasons: (1) the appeal is untimely since more than thirty days has elapsed from the entry of the original orders granting summary judgment on March 15, 1985 and, (2) even if the appeal period should begin to run from April 10, 1985, appellant, nevertheless, did not file a petition for permission to appeal this order with the Appellate Court pursuant to Pa.R.App.P. 1311(b). We are compelled to agree.

It is well settled that the mere certification of an issue by the lower court under section 702 will not alone establish jurisdiction with our Court in a given case. Gellar v. Chambers, 292 Pa.Super. 324, 437 A.2d 406 (1981); See Commonwealth v. Pfender, 280 Pa.Super. 417, 421 A.2d 791 (1980); Commonwealth v. Wills, 328 Pa.Super. 342, 476 A.2d 1362 (1984). A necessary procedural step, not taken by appellant in the instant case, to perfect this appeal is found under Rule 1311(b) of the Pennsylvania Rules of Appellate Procedure. This rule in pertinent part provides:

(b) Petition for permission to appeal. Permission to appeal from an interlocutory order containing the statement prescribed by 42 Pa.C.S.A. Sec. 702(b) may be sought by filing a petition for permission to appeal with the prothonotary of the appellate court within 30 days after entry of such order in the lower court or other government unit with proof of service on all other parties to the matter in the lower court or other government unit and on the government unit or clerk of the lower courts, who shall file the petition of record in such lower court____

Since appellant in the instant case has failed to file a petition with our Court seeking permission to appeal from the interlocutory order, we may not entertain this appeal. Consequently, we have no choice but to quash the instant appeal.

Appeal is quashed. Jurisdiction is relinquished.

      . Our Court has stated that in the case of an appeal from an interlocutory order, the thirty day appeal period under Pa.R.App.P. 903 should not begin to run until the lower court certifies an otherwise unappealable interlocutory order as appealable as of right under Pa.R.App.P. 311(b)(2). Martin v. Gerner, 332 Pa.Super. 507, 481 A.2d 903 (1984). If we were to adopt this reasoning in the instant case, we must necessarily conclude that the instant appeal, which was taken by permission pursuant to 42 Pa.C.S.A. Sec. 702(b) and not as of right, was timely filed on May 2, 1985 from the order of April 10, 1985 certifying the interlocutory appeal.