author: ROWLEY, President Judge.

text:
    612 A.2d 1048
    Carl A. LINDSTROM and Virginia K. Lindstrom, husband and wife, Appellants, v. PENNSWOOD VILLAGE.
    Superior Court of Pennsylvania.
    Argued April 21, 1992.
    Filed Aug. 4, 1992.

      Jonathan E. Rich, Newton, for appellants.
    John P. Diefenderfer, Newton, for appellee.
    Before ROWLEY, P.J., and MONTEMURO and POPOVICH, JJ.
   ROWLEY, President Judge.

In this appeal from the August 27,1991, order sustaining the preliminary objections of appellee Pennswood Village, appellants Carl A. Lindstrom and Virginia K. Lindstrom, husband and wife, contend that the trial court erred in dismissing all but one of their causes of action, and granting leave to amend within thirty days as to the remaining claim. After a careful review of the record and the law, we disagree with appellants. Accordingly, we affirm the order sustaining appellee’s demurrer in this case.

This action was commenced on April 4, 1991, when appellants filed a complaint against appellee Pennswood Village, a nonprofit continuing care facility for individuals over the age of sixty-five, based on five causes of action. Those claims were as follows: (I) breach of contract, (II) breach of implied warranty, (III) constructive eviction, (IV) violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law, and (V) intentionally tortious conduct. Appellee filed preliminary objections on April 23, 1991, in the nature of a demurrer and motion for more specific pleading.

By order entered August 27, 1991, the trial court granted appellee’s demurrer as to counts I through IV of the complaint because it found that those counts of the complaint failed to state a cause of action upon which relief could be granted. The trial court sustained appellee’s preliminary objection to the count V, as pleaded, but granted appellants thirty days to amend. Appellants did not amend count V, choosing instead to file this timely appeal.

The issues raised by appellants concern whether the trial court erred in the following five respects: (1) in' holding that appellants did not properly plead causes of action for breach of express and implied contract provisions, (2) in holding that appellants did not properly plead a cause of action for constructive eviction, (3) in holding that appellants did not properly plead a violation of the Pennsylvania Code, Title 28, § 201.29, the Patient’s Bill of Rights, (4) in holding that appellants did not properly plead a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, and finally, (5) in holding that appellants did not plead their breach of implied warranty claim with sufficient specificity.

Initially we note our standard of review. As is our function upon an appeal from a decision of the trial court sustaining preliminary objections in the nature of a demurrer, we must accept as true every relevant fact sufficiently averred in the plaintiffs’ complaint together with every inference favorable to the non-moving party which is fairly deducible therefrom. Ganassi v. Buchanan Ingersoll, P.C., 373 Pa.Super. 9, 11, 540 A.2d 272, 273 (1988.) With these standards in mind, we turn to an examination of the record.

The complaint reveals that on or about December 1,1989, appellants executed a contract with appellee. This agreement was a thirty-two page document entitled “Pennswood Village Residence with Life Care Agreement,” which provided that in consideration for the payment of an initial entry fee, plus a monthly maintenance fee, appellants would be entitled to extensive lifetime benefits, including housing, food, and health care. Importantly, the Residence with Life Care Agreement specifies that the document does not create a landlord/tenant relationship and that the appellants were contracting primarily for services. Further, the document clearly states that it, together with certain specified supplementary documents, constitute the entire agreement between appellants and appellee.

Appellee’s premises include resident apartments, a library, a craft center, a gift shop, a coffee shop, recreational facilities, guest housing, and two special care facilities: (1) Woolman House, which is a skilled nursing unit designed for residents who are ill or injured and need round-the-clock medical supervision, and (2) Barclay House, which is a personal care unit designed to assist residents in independent living. Shortly after signing the Residence with Life Care Agreement, appellants moved into a two-bedroom unit within appellee’s premises.

After moving into the community, appellant Virginia K. Lindstrom (hereinafter “wife”) began volunteering her services in the Woolman Center as part of a program whereby residents could feed other residents of the facility who were so elderly or disabled that they could no longer care for themselves. From April of 1990 to in or about September 13, 1990, appellant wife assisted two female residents with eating their evening meals. While acting in this volunteer capacity, appellant wife was disturbed that some of the food on the trays which were served to Woolman patients was inappropriate and/or difficult to swallow without excessive chewing. Specifically, appellant wife objected to the fact that the food on the patients’ trays was fibrous and needed to be cut in order for the patients to swallow it. And further, she objected that their evening meal was “heavy.” Finally, she questioned the wisdom of serving these patients tomato or grapefruit juice as she believed it caused them “gastric reactions.”

Appellant wife notified the nursing and dietary staff of her concerns on several occasions. It should be noted that nothing appears of record to suggest that the intended recipients of the food ever complained to appellant wife, nor that she was voicing these concerns at their request. No change was made in the diets of the two patients as a result of appellant wife’s contacts with the nursing and dietary staff.

Finally, outraged at the inattention of the staff to her concerns, appellant wife called on appellee’s clinical dietician with notes of her observations. She informed the dietician that she was prepared to take these concerns to state and federal government officials if no change was made in the diet of her patients.

Approximately six days later, appellee’s executive director and an associate requested a meeting with appellant wife. Appellant wife contends that during the course of the meeting, she was subjected to “raised voices” with “abusive tone and language” in which she was told that “she could only continue to volunteer so long as she expressed no opinions or criticisms” concerning the types of foods served to Woolman patients. The meeting ended after approximately one and one-quarter hours, whereupon appellee’s executive director told appellant wife that “[he] did not want to have th[e] meeting again.”

Nevertheless, approximately one week after the September 19 meeting, appellant wife submitted a written memorandum to appellee criticizing the diet designed by the clinical dietician for the two patients. Consequently, appellant wife was no longer permitted to feed her regular patients, but was permitted to feed other patients under the close supervision of the nursing staff.

Appellants contend that “as a consequence of all the foregoing [events], [they] realized that [appellee] was incapable and/or unwilling to fulfill the obligations and representations made by it to them,” such that appellee is liable to them for damages under the theories delineated above. They argue that the trial court erred in concluding that all of their causes of action were improperly pled and in dismissing their claims with leave granted to amend the tort claim. We find appellants’ contentions completely lacking in merit.

The breach of contract claim must fail because no claim has been stated which could entitle appellants to relief. In their complaint, appellants aver that appellee has breached express warranties in two separate documents. First, appellants argue that the trial court erred in dismissing their claim that appellee breached the Residence with Life Care Agreement, as follows: (1) by failing to provide appellants with a residential community which fosters independent living for men and women sixty-five years of age and older, (2) by failing to provide an environment whereby appellants enjoyed the right to occupy and use appellee’s living accommodations, and (3) by failing to provide adequate resident health care, nursing care and dietary services. Our careful review of the record reveals nothing which suggests that appellee precluded appellants from the right to live independently or from the right to occupy their living accommodations. The record is equally devoid of the slightest suggestion that appellee has neglected a significant health care or dietary need of any resident.

Secondly, appellants argue the trial court erred in dismissing their claim that appellee did not honor a general list of policies entitled “Resident/Patient’s Rights,” which was expressed in the Resident’s Guide Book. This book was given to appellants either upon or shortly before their arrival at the community. It is a voluminous reference manual which details all facets of life at the community— how to do laundry, how to use the meal plans, how to send and receive mail, etc. Appellants claim that this guide book is incorporated into the agreement and that by failing to honor the rights delineated therein, appellees have breached their agreement. We disagree because the Residence with Life Care Agreement specifically provides otherwise, as follows:

9. Entire Agreement and Assignability — This Agreement, including the General Conditions and any specified Addenda, constitutes the entire agreement between the Community and the Resident. This agreement may not be assigned by the Resident to another person.
10. Documents Made a Part of the Residence With Life Care Agreement — This agreement includes the Priority Application for Residence with Life Care Agreement; Resident’s Financial Information Form; Medical Record Part I and Medical Record Part II; and the report of the physical examination by a Pennswood physician. These documents are hereby incorporated by reference. Knowing that the Community relies on the Resident’s statements made therein, the Resident warrants that all such statements are true and complete.

When the words of a contract are unequivocal, they speak for themselves, and a meaning other than that expressed cannot be given to them. This Court will not rewrite the contract or give it a construction that conflicts with the plain, ordinary, and accepted meaning of the words used. Warren v. Greenfield, 407 Pa.Super. 600, 607, 595 A.2d 1308, 1312 (1991). Therefore, the trial court was correct in concluding that appellants have not stated a cause of action based on a breach of the express provisions of the contract between appellants and appellee in this case.

Next, appellants argue that the trial court erroneously concluded that appellee failed to properly plead an implied warranty of habitability and its breach. We find no merit in this claim. The concept of an implied warranty of habitability is only applicable to residential leases. The agreement at issue in this case is not a residential lease. General Condition 111(D)(2) unequivocally states that “[n]othing contained in th[e] agreement shall be construed to create the relationship of landlord and tenant between the Community and the Resident. A Resident’s rights are primarily for services, and include a right of occupancy subject to all the terms and conditions of their agreement.” We therefore conclude that the trial court correctly sustained appellee’s demurrer as to appellants’ cause of action based on the breach of an implied warranty. Similarly, we conclude that the trial court properly sustained appellee’s demurrer as to appellants’ constructive eviction claim. The lack of a residential lease precludes application of the constructive eviction concept to this case.

The third issue raised by appellants is whether the trial court erred in holding that appellants failed to properly plead violations of the Pennsylvania Code, Title 28, § 201.-29. That section is entitled “Patient rights,” and provides that the governing body of a regulated health care facility is required to establish and adhere to written policies regarding the rights and responsibilities of patients. The record reveals that appellee has complied with this requirement in that appellee’s Resident Guide Book contains a section entitled “Patient/Resident’s Rights” which mirrors the rights specified in § 201.299.

In the complaint, appellants aver that appellee’s executive director spoke to appellant wife in an “abusive tone” and with “abusive language.” However, no instances of “abuse” within the meaning of § 201.29 were specified. On the contrary, the complaint itself reveals that, despite the considerable disturbance her complaints caused appellee’s staff, appellant wife was given a second chance to feed her regular patients on the condition that she refrain from further disruptive behavior. Because appellant wife found it impossible to so restrain herself, the record indicates that appellee removed appellant wife from the care of her original patients but allowed her to feed other patients under the supervision of the nursing staff. Appellee did not completely preclude appellant wife from further volunteer work. Consequently, we conclude, as did the trial court, that despite appellants’ contentions to the contrary, appellee did not violate appellant wife’s rights under § 201.29 to be free from abuse and to associate and communicate privately with persons of choice.

The fourth issue which we must address is whether the trial court was erroneous in holding that appellants did not properly plead a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq. Appellants themselves acknowledge that the Pennsylvania Unfair Trade Practices and Consumer Protection Law is aimed at “fraud prevention.” Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 457-459, 329 A.2d 812, 815-816 (1974). Rule 1019(b) of the Pennsylvania Rules of Civil Procedure provides, in pertinent part, that “[a]verments of fraud or mistake shall be averred with particularity.” Nevertheless, in contravention of Rule 1019(b), appellants have failed to specify the particular facts upon which they rely in bringing their claim under 73 P.S. § 201-1 et seq. We therefore conclude, as did the trial court, that appellants have failed to properly plead a claim pursuant to the Pennsylvania Unfair Trade Practices and Consumer Protection Law.

And finally, we need not address appellants’ contention that the trial court erred by finding that the complaint “completely lacked specificity” as to the alleged breach of an implied warranty of habitability inasmuch as we conclude that where there is not a residential lease, there can be no implied warranty of habitability.

Accordingly, we affirm the trial court order sustaining appellee’s demurrer.

Order affirmed.

      . We note that even if a warranty of habitability had been implied in the agreement, appellants have failed to plead that the defect was of a nature and kind which would prevent the use of the dwelling for its intended purpose of habitation. Pugh v. Holmes, 486 Pa. 272, 289, 405 A.2d 897, 905 (1979).

      . Further, appellants have failed to plead the requisite elements of a constructive eviction. To constitute a constructive eviction, the interference by a landlord with the possession of his tenant or with the tenant’s enjoyment of the demised premises must be of a substantial nature and so injurious to the tenant as to deprive him of the beneficial enjoyment of the demised premises, to which the tenant yields, abandoning possession within a reasonable time. Kuriger v. Cramer, 345 Pa.Super. 595, 609, 498 A.2d 1331, 1336 (1985). Nothing in the record suggests that appellee interfered with appellants’ possession of their accommodations within appellee’s community in a substantially injurious manner.

      . However, as we have noted in footnote one, even if there were an implied warranty of habitability in the Residence with Life Care Agreement, appellants’ claim would fail because they did not plead any physical defect in the premises of such a nature and kind that they were prevented from using their living accommodations in appellee’s community for its intended purpose of habitation.


source: Caselaw Access Project

author: DEL SOLE, Judge: McEWEN, Judge,

license: Public Domain

text:
    612 A.2d 1053
    COMMONWEALTH of Pennsylvania v. Timothy LITTLE, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 18, 1992.
    Filed Aug. 13, 1992.

      David Crowley, Bellafonte, for appellant.
    J. Karen Arnold, Asst. Dist. Atty., Bellafonte, for Com., appellee.
    Before McEWEN, DEL SOLE and HOFFMAN, JJ.
   DEL SOLE, Judge:

Appellant, Timothy Little, entered a guilty plea to theft and was sentenced to thirty days to twenty-three and one-half months incarceration with no credit for time served. This sentence was later modified to give Appellant credit for twenty days time served. When Appellant was arrested for these charges he was already in custody in a different county on different charges. Appellant claims the trial court erred in not giving him credit for all pre-sentence custody even though the custody was in a different county where he was being held on different charges. We agree and vacate the Judgment of Sentence and remand the matter for a recalculation of sentence.

The facts of this case are undisputed. On January 23, 1991, Appellant was arrested and charged with theft, receiving stolen property, conspiracy, and retail theft in connection with an incident occurring in September, 1990, in State College, Pa. Bail was set on these charges at six thousand dollars, and Appellant did not post the bail.

At the time of his arrest, Appellant was already incarcerated and awaiting trial on a number of criminal complaints in Allegheny County Prison, having failed to post bail on that County’s charges. At all times at which he was temporarily transferred to Centre County for proceedings on Centre County charges, he was subject to detainer by Allegheny County to return to his incarceration there awaiting trial on that County’s charges.

On April 8, 1991, Appellant pled guilty in Centre County to theft and was sentenced to thirty days to twenty-three and one-half months incarceration in Centre County Prison, with no credit for time served. At that time, counsel for Appellant requested that the court permit credit for all time spent incarcerated from January 23, 1991, to April 8, 1991, even though Appellant’s principal place of incarceration during that period was Allegheny County. This request was denied.

Appellant then filed a motion to modify the court’s sentence, again seeking credit for this seventy-five day period. The court modified the sentence to afford Appellant credit for twenty days time served, reflecting the time periods in which Appellant was placed in the Centre County Prison awaiting various legal proceedings in Centre County.

Appellant’s Allegheny County charges were not disposed of at the time of his sentencing in Centre County, and those charges were subsequently nol prossed.

On appeal Appellant contends that the trial court erred in not granting him credit for time served while he was in custody at the Allegheny County Jail. In response the Commonwealth refers to the position taken by the trial court which denied Appellant the requested relief on the basis that a defendant may not receive credit for time served prior to sentencing when he is incarcerated on wholly unrelated charges. The Commonwealth maintains that Appellant’s incarceration in Allegheny County was not attributable to the Centre County charges and therefore he was not due any credit for time served in Allegheny County-

The legislature has set forth provisions dictating the manner in which credit for time served is to be computed. See 42 Pa.C.S.A. § 9760. Subsection (1) directs the court to issue credit as follows:

Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which such a charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal.

42 Pa.C.S.A. § 9760(1).

Applying this section and referencing Commonwealth ex rel. Bleecher v. Rundle, 207 Pa.Super. 443, 217 A.2d 772 (1966), the Commonwealth suggests that Appellant cannot be credited for the period of imprisonment he spent in Allegheny County because that custody was not attributable to the Centre County charges. The Bleecher court in considering whether to credit an appellant in Montgomery County for time spent in Delaware County prison when he was later acquitted of the Delaware County charges, held that “the period of imprisonment in one county is credited only against the charges there, even though there are charges pending in other counties or states.” Id., 207 Pa.Superior Ct. at 448-49, 217 A.2d at 776. The court ruled that an appellant’s “subsequent acquittal does not negate the fact that the imprisonment in Delaware County was not ‘on the offense’ for which appellant was sentenced in Montgomery County.

However, in Lantzy v. Commonwealth, 44 Pa.Commw. 396, 403 A.2d 1069 (1979) it was found that the principle of Bleecher v. Rundle, supra, is to apply only absent the applicability of 18 Pa.C.S. § 1360(4). Now codified under 42 Pa.C.S.A. § 9760(4), it provides:

If the defendant is arrested on one charge and later prosecuted on another charge growing out of an act or acts that occurred prior to his arrest, credit against the maximum term and any minimum term of any sentence resulting from such prosecution shall be given for all time spent in custody under the former charge that has not been credited against another sentence.

It is undisputed that Appellant was confined in Allegheny County on unrelated matters when he was arrested for the Centre County crimes he was alleged to have committed prior to his Allegheny County confinement. The trial court acknowledges that prior to sentencing on the Centre County charges he was not given credit in Allegheny County for the time spent in their facility and, in fact, the Allegheny County charges were subsequently nol prossed. Under these circumstances we find the provisions of § 9760(4) applicable and conclude the trial court erred in not crediting Appellant for the time served in the Allegheny County prison, since Allegheny County did not credit him for this period of confinement prior to the imposition of the Centre County sentence.

By our ruling we do not conclude, as suggested by the Commonwealth, that a defendant can be credited for the entire length of time spent in a different jurisdiction on unrelated charges for which credit was not issued. Rather we conclude that by reading § 9760(4) together with the provisions of § 9760(1), a defendant will be issued credit for the period of time confined in a different jurisdiction, which has not been credited, and which can be attributed to the pending criminal charges. By this statement we hold that Appellant must be given credit for the time spent in Allegheny County, following the date of his arrest on the Centre County charges, (January 23,1991), until the date he was sentenced on the Centre County charges (April 8,1991).

The trial court has already credited Appellant with 20 days time served, reflecting the time period during which his was placed in the Centre County Prison awaiting Centre County legal proceedings, however, Appellant is entitled to credit for the remaining period of time. Accordingly, we vacate the Judgment of Sentence and remand this matter to the trial court for a recomputation of sentence in accordance with our directive. Jurisdiction relinquished.

McEWEN, J., files a dissenting statement.

McEWEN, Judge,

dissenting:

While the author of the majority view provides a most persuasive expression, I am obliged to respectfully dissent since the sequence of the events of the instant case do not, in my view, match the conditions precedent prescribed in 42 Pa.C.S. § 9760(4). Thus, I would affirm the judgment of sentence imposed by the distinguished Judge David E. Grine.

      . We note that although Appellant has included in his brief a statement of Reasons for Allowance of Appeal, Appellant’s challenge to the trial court’s failure to award credit for time served prior to sentencing involves the legality of sentence. Commonwealth v. Hollawell, 413 Pa.Super. 42, 604 A.2d 723 (1992). A claim challenging the legality of a sentence is appealable as of right. Id.

      . This section was transferred from 18 Pa.C.S.A. § 1360, which was enacted on December 30, 1974 and became effective in 90 days. See 1980, Oct. 5, P.L. 693, No. 142, § 401(a).

      . Our ruling is in keeping with the statement made by this court in a footnote in Commonwealth v. Frank, 263 Pa.Super. 452, 398 A.2d 663 (1979). Therein it was noted:
      Should appellant’s sentence be reinstated, credit must be given for the time he has spent in custody as a result of the crimes he committed on August 24, 1974. Although convicted first in Chester County, appellant was sentenced first in Lancaster County. The sentence he ultimately received in Chester County was made consecutive to the Lancaster sentence. Under these circumstances, credit against this Lancaster sentence must be given from the date of his initial incarceration under the terms of 18 Pa.C.S.A. § 1360(4) (Supp.1978-79) See also Pa.R.Crim.P. 1406. It should be observed that this calculation will not allow appellant double credit for the time he served prior to his sentencing in Lancaster County. Once credit is given against his Lancaster County sentence under 18 Pa.C.S.A. § 1360(4), the time appellant has served in custody is no longer ‘a result of the charges that arose in Chester County within the meaning of subsection (1) of that provision, and thus cannot be credited against the sentence he received there.

        Commonwealth v. Frank, 263 Pa.Super. 452, 398 A.2d 663, 675, ftn. 10 (1979).


author: TAMILIA, Judge:

text:
    612 A.2d 1056
    COMMONWEALTH of Pennsylvania v. Charles TWILLEY, Appellant.
    Superior Court of Pennsylvania.
    Argued July 15, 1992.
    Filed Sept. 2, 1992.

      Aaron C. Finestone, Philadelphia, for appellant.
    Joan Weiner, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CIRILLO, TAMILIA and POPOVICH, JJ.
   TAMILIA, Judge:

Charles Twilley takes this appeal from the judgment of sentence imposed October 9, 1991. Appellant was found guilty in a jury trial of aggravated assault and criminal conspiracy and subsequently sentenced to a total term of four (4) to eight (8) years imprisonment. The charges arose from an incident after a high school dance in Philadelphia in which the victim was viciously attacked and beaten with a baseball bat by three men as the victim came to the defense of two boys accosted by a gang of youths. The victim suffered a collapsed lung and multiple hemorrhages, brain contusions, broken ribs and skull fractures as a result of the attack. His attackers escaped in a black jeep-like truck, and appellant was later arrested as the driver of the getaway vehicle.

On appeal, appellant, who is white, first argues the trial court erred in denying his motion to strike the jury panel on the basis that the Commonwealth used all seven of its peremptory challenges against black venirepersons, thus creating a jury panel which was constituted in a racially discriminatory fashion.

In the case of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court placed the initial burden on the defendant to establish a prima facie case of purposeful discrimination in selection of the jury. A prima facie case of discrimination consists of three elements: 1) the defendant’s membership in a cognizable racial group; 2) the prosecutor’s use of peremptory strikes to exclude members of that group; and 3) an inference arising under the totality of the circumstances that the prosecutor used the strikes to exclude venirepersons on account of their race. Batson, supra; Commonwealth v. Jackson, 386 Pa.Super. 29, 562 A.2d 338 (1989) (en banc), allocatur denied, 525 Pa. 631, 578 A.2d 926 (1990) . Once the defendant makes a prima facie showing, the burden shifts to the prosecution to come forward with a neutral explanation for challenging the disputed jurors. Batson, supra, 476 U.S. at 96-97, 106 S.Ct. at 1722-23, 90 L.Ed.2d at 87-88. Although Batson dealt with the exclusion of black jurors from a case involving a black defendant, the Supreme Court recently extended the protections of Batson to any case where the defendant makes a prima facie showing of discrimination, whether or not the defendant and the prospective jurors share racial identity. Powers v. Ohio, 499 U.S.-, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) . Moreover, the fact that one or more blacks (or any race) ultimately may be empaneled is not dispositive of the issue of discrimination.

As noted by Mr. Justice Marshall, the resulting presence of two blacks on a jury by itself in no way insulates the empanelment of that jury from an inference of discrimination. Batson v. Kentucky, 476 U.S. 79, 93-94, 106 S.Ct. 1712, 1727-28, 90 L.Ed.2d 69 (1986) (Marshall, J., concurring). Additionally, in Powers v. Ohio, 499 U.S. -, -, 111 S.Ct. 1364, 1371, 113 L.Ed.2d 411, 426 (1991). Justice Kennedy, speaking on behalf of the majority, observed that “A prosecutor’s wrongful exclusion of a juror by a race-based peremptory challenge is a constitutional violation committed in open court at the outset of the proceedings. The overt wrong, often apparent to the entire jury panel, casts doubt over the obligation of the parties, the jury and indeed the court to adhere to the law throughout the trial of the cause.” (Emphasis added). Apparently, therefore, the improper exclusion of a single juror based upon race, is sufficient to “taint” the proceedings and the number of members of his race that survives to remain on the jury is irrelevant for purposes of legitimizing the selection process and the ultimate empanelment.

Commonwealth v. Dinwiddie, 529 Pa. 66, 72 n. 10, 601 A.2d 1216, 1219 n. 10 (1992).

Turning to the case before us, we note that the venire consisted of 38 persons, of whom 24 were white, 13 were black and 1 was Hispanic. The jury chosen consisted of 9 whites and 3 blacks. The venire was conducted in several rounds, and after the second round appellant asked the district attorney to place on the record his reasons for striking two black venirepersons. At that time, 19 venirepersons had been examined, of whom 13 were white, 5 were black and 1 Hispanic. Of the 5 blacks, 1 was seated as a juror, 2 were excused by the trial court and 2 were rejected with peremptory strikes by the Commonwealth. The court, after in camera discussion with counsel for both parties, stated that at that point in the proceedings it was premature for the Commonwealth to defend its selection process, and deferred a decision on the issue until the conclusion of jury selection (N.T., 6/18/91, p. 109). Voir dire resumed and after several more rounds, a jury of 9 whites and 3 blacks was selected. Therefore, of the thirteen black venirepersons, three were excused by the court, three were seated as jurors and the remaining seven were rejected by the Commonwealth through peremptory challenges.

The following day, the trial court held a hearing on the issue and stated initially that the Commonwealth’s exercise of all seven of its peremptory challenges against black venirepersons

at least raises the issue or makes it ripe enough for the Commonwealth at this point in time to justify its ... exercise of all seven challenges, and the issue, obviously, is one of whether or not the explanations given by the Commonwealth as to each of those black persons stricken by the Commonwealth were race neutral.

(N.T., 6/19/91, p. 4.) The prosecutor explained the basis of his objection to each of the seven stricken black venirepersons, after which the trial court discussed the applicable case law, analyzed the circumstances of each of the rejected venirepersons and ultimately concluded there was no indication that the peremptory strikes were racially motivated (Id., 62-73).

Appellant argues “the explanations offered by the prosecutor for his strikes were so transparent that he failed to rebut the prima facie case of discrimination” (Brief of Appellant at 24). After sedulous review of the record, we cannot agree.

Racial discrimination in selection of jurors harms not only the accused whose life or liberty they are summoned to try. Competence to serve as a juror ultimately depends on an assessment of individual qualifications and ability impartially to consider evidence presented at a trial.
The harm from discriminatory jury selection extends beyond that inflicted on thé defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice. Discrimination within the judicial system is most pernicious because it is “a stimulant to that race prejudice which is an impediment to securing to [black citizens] that equal justice which the law aims to secure to all others.”

Batson, supra, 476 U.S. at 87-88, 106 S.Ct. at 1718, 90 L.Ed.2d at 81-82.

This Court must, therefore, balance the overwhelming desire that our judicial system not only be fair, but also appear to be fair, against our tradition of avoiding tampering with those decisions best made by the trial court, absent a manifest abuse of the court’s discretion. Nowhere is that precept more important than in the instant case. Here, the trial court conducted a thorough hearing the day after voir dire was completed, analyzing each of the individuals stricken by the Commonwealth, as well as the prosecutor’s reasons therefor. The trial court indicated it was troubled by some of the peremptory strikes, but nevertheless concluded under the totality of the circumstances the prosecutor’s explanations were reasonable and nonpretextual. “Since the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference.” Batson at 98 n. 21, 106 S.Ct. at 1724 n. 21, 90 L.Ed.2d at 89 n. 21; See Jackson, supra.

As the trial court was in the best position to make the initial determination of whether discrimination occurred in jury selection, and as this Court with the clear vision of hindsight is unable to discern any abuse of discretion by the trial court, we find this claim without merit.

Appellant next argues the trial court erred in denying the defense motion for a mistrial when, during cross-examination, a Commonwealth witness referred to a prior Philadelphia crime in which a teenager, who, like the victim here was the son of a police officer, was beaten to death with a baseball bat by a gang of youths. This claim is without merit, as is appellant’s final claim, and we cite with approval a portion of the trial court Opinion addressing these issues.

As a general rule, the decision whether to declare a mistrial in a criminal prosecution rests within the sound discretion of the Trial Court and will not be reversed on appeal absent an abuse of discretion. Commonwealth v. Nelson, 389 Pa.Super. 417, 567, A.2d 673, 679 (1989); Commonwealth v. Kubiac, 379 Pa.Super. 402, 550 A.2d 219, 223, appeal denied 522 Pa. 611, 563 A.2d 496 (1988). Furthermore, “it is settled that not every irrelevant or unwise remark made in the course of a trial by a witness warrants the granting of a new trial.” Commonwealth v. Axe, 285 Pa.Super. 289, 427 A.2d 227, 230 (1981). Rather, a new trial is only required when the remark is so prejudicial in its nature or substance or manner of delivery that it may reasonably be said to have deprived the defendant of a fair and impartial trial. Id. citing Commonwealth v. Hales, 384 Pa. 153, 119 A.2d 520 (1981) [(1956)]; See also Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673 (1973).
In the case at bar, Commonwealth witness, James Hughes, while on cross-examination, made reference to “a boy killed during the summer months in Port Richmond with a bat.” (N.T., 6/20/91, p. 130). This remark was in reference to the Sean Dailey case, a highly publicized case where a policeman’s son was beaten to death with a baseball bat. At no time, however, did the witness state the actual name of the case nor did he mention that the victim in this case was the son of a police officer, too. Furthermore, immediately after the comment was made defense counsel objected and the Trial Judge had the remark stricken from the record and instructed the jury to disregard the remark in that it had nothing to do with the case at hand. (N.T. 6/20/91, p. 130).
Since the witness did not give the specific name of the case he was referring to, and since the fact that the victim was the son of a police officer did not come out at trial, it cannot be said that the defendant was so prejudiced by the remark to warrant a new trial. See Commonwealth v. Axe, supra; Commonwealth v. Goosby, supra. Furthermore, this Court gave an immediate cautionary instruction to the jury to disregard the remark which cured any possible prejudice which may have occured [sic].
Lastly, the defendant contends that the Trial Court erred in denying his Motion for a Mistrial presented during the closing argument of the Commonwealth when the prosecutor made use of a baseball bat and a forty-ounce bottle of beer in a brown paper bag as props, neither of which had been introduced as an exhibit.
As stated previously, the decision whether to declare a mistrial in a criminal prosecution rests within the sound discretion of the Trial Court and will not be reversed on appeal absent an abuse of discretion. Commonwealth v. Nelson, supra.
In the case at bar, it is undisputed that the victim was hit in the head with a baseball bat, thereby sustaining serious bodily injury. Both of the Commonwealth’s eyewitnesses, Colleen Schmitt and John Hughes, testified that they observed the defendant with a wooden bat in his hand. [See N.T., Collen Schmitt, 6/19/91, p. 52] [See also N.T., John Hughes, 6/20/91, pp. 109, 112, 122]. It was the defendant himself who put the issue of the bat into question by testifying that he was not holding a bat in his hand, but rather, was holding a forty-ounce bottle of beer in a brown paper bag. [N.T., 6/21/91, pp. 514-516] The defendant testified that the beer he was holding was approximately twelve inches in length where a baseball bat is closer to thirty-six inches. [N.T., 6/21/91, pp. 515-516] The defendant further testified that Commonwealth witness, John Hughes, was wrong when he said he saw the defendant with a bat in his hand. [N.T., 6/21/91, p. 515]
In his closing argument, the prosecutor held up a standard size bat and a forty-ounce beer in a brown paper bag for the jury to compare. [N.T., 6/24/91, p. 617]. At that time defense counsel objected to the use of these items since they were not admitted in evidence as exhibits. [N.T., 6/24/91, p. 617] A hearing was then held in the Trial Judge’s anteroom to determine whether the prosecutor could use these props in his closing argument to the jury. The Trial Judge concluded that since there was testimony concerning these two items, and their respective sizes, there was nothing so prejudicial in showing the jury these items as to warrant a mistrial. [N.T., 6/24/91, p. 621] See Commonwealth v. Williams, 95 Dauph. 401, affirmed 458 Pa. 319, 326 A.2d 300 (1973) [ (1974) ]. However, the Trial Judge did restrict the prosecutor from showing both items to the jury at the same time. [N.T., 6/24/91, p. 622]
Since the Trial Judge is in the best position to determine the appropriate remedy, his decision will not be reversed absent an abuse of discretion. Commonwealth v. Jones, [501] Pa. [162], 460 A.2d 739q, 741 (1983).

(Slip Op., Jones, II, J., 3/6/92, pp. 5-9.)

For the foregoing reasons, we affirm the judgment of sentence imposed in this case.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 2702.

      . Id, § 903.

      . The trial judge, who is black, noted at the hearing his sensitivity to the issue and “as an admonition, indicate[d] to all concerned that this Court takes this kind of allegation very, very seriously, and will ... do whatever is appropriate ... to make sure that every defendant, regardless of color, receives a fair and impartial trial consistent with Batson v. Kentucky [476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ]” (N.T., 6/19/91, pp. 67, 73).


author: CIRILLO, Judge: DEL SOLE, Judge,

text:
    612 A.2d 1060
    Robin V. McKEOWN, v. Thomas G. McKEOWN, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 29, 1992.
    Filed Sept. 8, 1992.
    Arthur L. Zulick, Stroudsburg, for appellant.
    John P. Lawler, Stroudsburg, for appellee.
    Before CIRILLO, DEL SOLE and KELLY, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Monroe County denying a petition to terminate spousal support. We reverse.

Thomas McKeown (husband) and Robin McKeown (wife) were married in 1980 and separated in 1987. There were no children born of the marriage. Divorce proceedings commenced in 1987. Wife sought spousal support while the divorce was pending. Subsequently, the trial court ordered husband to pay spousal support to wife. The spousal support order was modified on February 6, 1990. The modification required husband to pay his wife $100.00 per week for spousal support, to maintain his wife’s medical insurance, and to pay the mortgage, taxes, and insurance on both residences the parties owned.

On September 6, 1990, the trial court entered a final decree in divorce, divorcing the parties from the bonds of matrimony and distributing the property under an order of equitable distribution. Husband appealed the equitable distribution order.

Pending resolution of the appeal, husband petitioned the trial court to terminate his spousal support payments effective the date of the divorce decree. The trial court denied husband’s petition to terminate spousal support stating:

AND NOW this 13th day of May, 1991, upon consideration of the rationale of the Superior Court expressed in Ritter v. Ritter, 359 Pa.Super. 12, 518 A.2d 319 (1986) that “spousal support and alimony pendente lite are indistinguishable in the context of the divorce action” and the holding of the Court in Ponthus v. Ponthus, 70 Pa.Super. 39 (1918) and it appearing that the Defendant has not complied with the prior Order of this Court for equitable distribution and has not sought a supersedeas of said Order, the Petition of Defendant Thomas G. McKeown for termination of spousal support and the Rule heretofore issued thereon are dismissed.

Thereupon, husband filed this timely appeal. Husband now presents one issue for our consideration: did the trial court err in refusing to terminate the order of spousal support as of the date of the parties’ divorce?

In reviewing spousal support orders, this court may not disturb the decision of the trial court unless there has been a clear abuse of discretion. Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983). An abuse of discretion is more than a mere error in judgment. Discretion is abused only when the law is misapplied or overridden or the judgment exércised is manifestly unreasonable. Lesko v. Lesko, 392 Pa.Super. 240, 242, 572 A.2d 780, 782 (1990) (citations omitted).

Husband claims that the trial court erred in dismissing his petition to terminate spousal support because the duty to provide spousal support ceases when the marriage is dissolved. In support of its denial of the petition to terminate spousal support at the time of the divorce decree, the trial court correctly quoted Ritter, supra. The Ritter court stated, “(s)pousal support and alimony pendente lite are indistinguishable in the context of a divorce action.” 359 Pa.Super. at 16, 518 A.2d at 321 (1986). However, a year later in Levine v. Levine, 360 Pa.Super. 297, 520 A.2d 466 (1987), this court explained:

Ritter, however, is limited to the procedural issue of the appealability of an order for spousal support where the wife requested either spousal support or alimony pendente lite in her answer to the husband’s divorce complaint for support or alimony pendente lite, (citations omitted.)

Levine, 360 Pa.Super. at 302, 520 A.2d at 468. The present case is an appeal from an order dismissing the exceptions of both parties to a master’s report and ordering husband to pay spousal support. Thus, this case is distinguishable from Ritter.

The trial court also cites Ponthus v. Ponthus, 70 Pa.Super. 39 (1918), which has lost its relevance due to the enactment of the Divorce Code of 1980. Prior to the Divorce Code, the divorce decree itself was appealed. The Divorce Code now allows parties to agree to the entry of a no-fault divorce. Generally, in a bifurcated divorce, it is not the divorce itself which is contested, but the economic issues.

A dependent spouse may receive both spousal support and alimony pendente lite. Although both awards are temporary in nature, spousal support and alimony pendente lite are separate and distinct creations of the law. Krakovsky v. Krakovsky, 400 Pa.Super. 260, 583 A.2d 485 (1990). Spousal support provides living expenses for a dependent spouse prior to the resolution of the divorce. Levine, supra; Fexa v. Fexa, 396 Pa.Super. 481, 578 A.2d 1314 (1990). The duty to pay spousal support stems from the marital relationship itself and terminates upon the dissolution of the marriage. Levine, supra; Fexa, supra. On the other hand, alimony pendente lite is awarded for the period between the entry of the divorce decree and the distribution of the marital property. The purpose of alimony pendente lite is to preserve economic equality between the parties pending the resolution of equitable division, thereby allowing the dependent spouse to maintain or defend the divorce action. Krakovsky, supra.

Upon entry of a divorce decree, a trial court may convert a spousal support order into an alimony pendente lite order. Because a conversion from spousal support to alimony pendente lite is not merely a formal change but a substantive alteration, it is not automatic and the party seeking alimony pendente lite must specifically apply for it. Krakovsky, supra; Levine, supra. When a party applies for alimony pendente lite, the trial court must determine whether or not a spouse is entitled to this type of award. In making its determination, the trial court must understand that the circumstances of the parties are subject to change throughout the dissolution of the marriage and the accompanying property division and, therefore, take this into consideration. Levine, supra.

Here, wife did not apply for alimony pendente lite and, therefore, the trial court never had the opportunity to consider whether there were any changes in the parties’ circumstances. Thus, the trial court never made the requisite determination as to whether wife was entitled to alimony pendente lite. Levine, supra. Accordingly, we find that the trial court misapplied the law and thereby abused its discretion when it ordered husband to pay spousal support after termination of the marriage. Lesko, supra; Remick, supra. Wife failed to apply to have the award of spousal support converted into alimony pendente lite. The parties are now divorced and husband’s obligation to provide spousal support is terminated. We, therefore, reverse the trial court order denying husband’s petition to terminate spousal support.

Order reversed.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting.

I respectfully dissent from the majority’s opinion. Although I agree that our case law distinguishes between spousal support and alimony pendente lite, and that conversion from support to alimony pendente lite is not automatic, I disagree with the majority’s conclusion that because Wife failed to apply for alimony pendente lite, the trial court never had the opportunity to determine whether Wife was entitled to this award. Rather, I believe that under the facts of this case, the trial court did determine that Wife was entitled to alimony pendente lite in the amount of $100.00 per week because the circumstances of the parties had not changed. Furthermore, I would hold that our case law supports the trial court’s actions in retroactively converting spousal support to alimony pendente lite despite the failure of the dependent spouse to file an application for alimony pendente lite.

In Purdue v. Purdue, 398 Pa.Super 228, 580 A.2d 1146 (1990), a support order was entered requiring Husband to pay support for his wife and minor child. Then the parties were divorced in a bifurcated divorce action, and years later the trial court, in considering the economic claims for equitable distribution, entertained Husband’s claim that his support award should be reduced retroactive to the time of wife’s remarriage. Husband was not notified of Wife’s remarriage at the time it occurred. The trial court refused to credit Husband in the equitable distribution award with the amount of support payments retroactive to the time of Wife’s remarriage, commenting that support awards automatically convert to alimony pendente lite at the issuance of a divorce decree, and alimony pendente lite does not necessarily terminate because of a party’s remarriage. DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871 (1987).

This court reversed the trial court, holding in accordance with Levine v. Levine, 360 Pa.Super. 297, 520 A.2d 466 (1990), that spousal support does not automatically convert to alimony pendente lite, and remanding to the trial court for a determination of whether Wife was entitled to an award of alimony pendente lite following the divorce. We held:

[b]ecause in this case we are uncertain whether the court meant for wife to receive alimony pendente lite following the divorce, and because the effect of remarriage and husband’s claim of lack of knowledge concerning the remarriage were not examined by the trial court, we conclude that a remand is in order.

Thus, we held in Purdue that the trial court may not assume that spousal support continues under a different name as alimony pendente after a divorce has been entered and prior to consideration of the economic claims of the parties, without determining the spouse’s entitlement to alimony pendente lite and the amount of that entitlement. We did not hold, however, that the trial court is precluded from deciding retroactively that the spouse was entitled to alimony pendente lite after the divorce is entered, rather we remanded so that the trial court could make its determination.

Similarly in Krakovsky v. Krakovsky, 400 Pa.Super. 260, 583 A.2d 485 (1990), we vacated ah order of equitable distribution when the trial court erroneously used a modified support order to serve three separate purposes, spousal support, alimony pendente lite, and arrearages on the modified support order as replacement for an alimony award. We stated that spousal support arises from the marital relationship and is designed to assure a reasonable living allowance to the dependent spouse, while alimony pendente lite is awarded to sustain the dependent spouse on a basis of equality with the other spouse while maintaining or defending the divorce action. Id., 400 Pa.Super. at 266-267, 583 A.2d 485. However, we then remanded to the trial court for it's “ultimate decision on the issues of alimony pendente lite and alimony”, Id., 400 Pa.Super at 269, 583 A.2d 485. Therefore, the trial court was not precluded from retroactively changing the award of support into an award of alimony pendente lite if the trial court determined the party was eligible for alimony pendente lite in the amount ordered. We remanded for the trial court to make this decision although the dependent spouse did not apply to the court for alimony pendente lite at the time of the final decree in divorce.

Our concern in both these cases was that the trial court consider the discrete purposes for spousal support and alimony pendente lite, and recognize that the circumstances of parties are subject to change throughout each of the steps of the dissolution of a marriage and accompanying property settlement. Id., 400 Pa.Super. at 267-268, 583 A.2d 485.

In the instant case, I would find that the trial court in dismissing the petition to terminate spousal support, and, in effect, retroactively changing it to alimony pendente lite, addressed the concerns we raised in Krakovsky and Purdue. Here, the divorce decree and the equitable distribution order were simultaneous, but because Husband appealed only from the order of distribution, the divorce became effective although no distribution took place. Therefore, throughout these stages of the dissolution of the marriage, the circumstances of the parties remained the same. The court, in dismissing Appellant’s petition to terminate spousal support, and stating that spousal support and alimony pendente lite are indistinguishable when Husband did not comply with the prior equitable distribution order of the court, recognized that the circumstances of the parties had not changed because of the divorce decree. In order to sustain the dependent spouse on a basis of equality with the other spouse while litigating the divorce action, Id,, 400 Pa.Super at 267, 583 A.2d 485, it was necessary to maintain the status quo by maintaining the order in the same amount.

23 Pa.C.S.A. § 3323(f) states in pertinent part that, “[i]n all matrimonial causes, the court shall have full equity power and jurisdiction ... to effectuate the purpose of this part and may grant such other relief or remedy as equity and justice require against either party ...” We held in Cheng v. Cheng, 347 Pa.Super. 515, 500 A.2d 1175 (1985), that one of the purposes of this “part”, or one of the policies of the Divorce Code, is to, “[ejffectuate economic justice between parties who are divorced ... and insure a fair and just determination of their property rights.” 23 Pa.C.S.A. § 3102(a)(6).

I would find that the trial court’s action in dismissing Husband’s petition to terminate spousal support fulfills the policies of the Code, and did not constitute an abuse of discretion. Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983).

      . Act of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 101 et seq. (repealed); Act of December 19, 1990, P.L. 1240, No. 206, 23 Pa.C.S. § 3101 et seq.

      . Here, distribution should have occurred after the order of equitable distribution was filed because Husband failed to file a supersedeas and post bond staying the enforcement of the order. However, because wife did not seek enforcement of the order prior to the time this court issued a memorandum opinion vacating the order, we find that the original order of distribution is unenforceable.

        However, it should be noted that the situation we face here would be the same had Husband filed a supersedeas, because in both cases distribution would not have occurred, and would have to be postponed until a new distribution order was fashioned by the trial court.


author: CERCONE, Judge.

text:
    612 A.2d 1064
    Ralph R. FLOWERS v. Carol A. FLOWERS, Appellant.
    Superior Court of Pennsylvania.
    Argued April 2, 1992.
    Filed Sept. 8, 1992.

      Lee D. Moses, Pittsburgh, for appellant.
    Robert D. Clark, New Castle, for appellee.
    Before KELLY, FORD ELLIOTT and CERCONE, JJ.
   CERCONE, Judge.

This is an appeal from the trial court’s denial of appellant’s petition to vacate a divorce decree. For the reasons set forth below, we affirm.

The parties to the instant action were married in 1954. Plaintiff/appellee, Ralph R. Flowers, instituted divorce proceedings by filing a complaint on August 24, 1988 alleging both indignities and irretrievable breakdown of the marriage. This complaint was served on defendant/appellant, Carol A. Flowers, by certified mail. The parties stipulated to the fact that appellant was served with a copy of the complaint in August of 1988. Two years later, appellee filed an affidavit averring that he and the appellant had been living separate and apart for at least three years and that the marriage was irretrievably broken. See 23 Pa. C.S.A. § 3301(d) (Grounds for divorce; Irretrievable breakdown of marriage). A copy of this affidavit was served on appellant by certified mail and she acknowledged receipt on August 30, 1990. The certified record indicates that appellant made no response to the affidavit. On October 5,1990, the trial court entered a decree divorcing the parties but retaining jurisdiction over any claims raised prior to entry of the decree which had not yet been resolved.

Newly retained counsel for appellant entered his appearance on December 21, 1990. Appellant’s prior counsel had never formally entered an appearance or filed any documents on behalf of his client. On January 29, 1991, new counsel petitioned the lower court to vacate the divorce decree and permit appellant to file a counterclaim to appellee’s divorce complaint. The trial court issued a rule on appellee and conducted a hearing on the matter in May of 1991. At that time the parties stipulated inter alia to the following facts: the 1988 complaint in divorce included a request for equitable distribution of the marital assets; the appellant never filed any documents with the court until the 1991 motion to vacate the decree; the equitable distribution issues were still before the court; and neither party had ever asked for a bifurcation of the proceedings. By an order docketed August 22, 1991, the trial court denied appellant’s petition to vacate the divorce decree. She filed a notice of appeal to this court on September 17, 1991 which raises one issue: whether a fatal defect apparent on the face of the record exists in a bifurcated divorce when no motion was ever made to bifurcate, no notice was given of a right to bifurcate, and the trial court failed to review the advantages and disadvantages of the bifurcation.

Before we can reach the substantive claim raised by appellant, however, we must first determine whether appellant has filed a timely appeal from a final order. These questions are jurisdictional and may be raised sua sponte by an appellate court. See Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985); Lower Lake Dock v. Messinger Bearing, 395 Pa.Super. 456, 577 A.2d 631 (1990). The finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications. Gordon v. Gordon, 293 Pa.Super. 491, 498, 439 A.2d 683, 686 (1981), aff'd, 498 Pa. 570, 449 A.2d 1378 (1982). “[I]n deciding whether an order is ‘final,’ one must do more than ask only whether the appellant is ‘out of court’; one must also ask whether, even if the appellant is still in court, the order is in its ‘practical aspects’ sufficiently final to make it appealable.” Id. 293 Pa.Super. at 499-500, 439 A.2d at 687 (citations omitted). It is clear that denial of a motion to vacate a divorce decree is a “final order” because it effectively puts a defendant “out of court” on both the question of the right of the former spouses to remarry or their right to make an effective will which designates a third party as legatee regarding their interests in property originally held by the entireties. See Pa.R.A.P., Rule 341(a), 42 Pa.C.S. (final orders generally).

This is not the end of our initial inquiry, however. The instant case presents a further procedural difficulty in that this court has not previously decided whether it is proper to appeal immediately from an order denying a petition to open or vacate a divorce decree, or whether it is necessary first to file exceptions or post-trial motions. Unfortunately, there is no rule of civil or appellate procedure which mandates the proper action following the trial court’s denial of a petition to open or vacate a divorce decree. Fashioning new rules is a function within the exclusive jurisdiction of the Pennsylvania Supreme Court. See, e.g., Commonwealth v. Mason, 507 Pa. 396, 402, 490 A.2d 421, 423-24 (1985), quoting Commonwealth v. Walls, 255 Pa.Super. 1, 5, 386 A.2d 105, 106-07 (1978) (general supervisory and administrative authority over all the courts is vested solely in the Supreme Court of Pennsylvania which alone may promulgate a new procedural rule or amend a present rule). In the absence of a specific Rule of Civil Procedure directing such action, we decline to complicate the procedural hurdles facing an aggrieved party in a divorce action by forcing him or her to engage in the equivalent of post-trial practice after the denial of a motion to open or vacate a divorce decree. We therefore conclude that the instant appeal is properly before us since appellant timely filed her notice of appeal after the trial court declined to open the decree. Having reached this determination, we turn to a consideration of appellant’s substantive claim.

The thrust of appellant’s argument is that because no motion to bifurcate was filed, she received no notice that bifurcation was a possibility. In consequence, she lost the benefit of the interim support she had been receiving and never had an opportunity to file a claim for alimony or alimony pendente lite. Appellant urges us to find that this constitutes a fatal defect apparent on the face of the record requiring us to vacate the divorce decree.

As the trial court has correctly explained, appellant’s motion to vacate the divorce decree is governed by 23 Pa.C.S. § 3332 which provides as follows:

Opening or vacating decrees
A motion to open a decree of divorce or annulment may be made only within the period limited by 42 Pa.C.S. § 5505 (relating to modification of orders) and not thereafter. The motion may lie where it is alleged that the decree was procured by intrinsic fraud or that there is new evidence relating to the cause of action which will sustain the attack upon its validity. A motion to vacate a decree or strike a judgment alleged to be void because of extrinsic fraud, lack of jurisdiction over the subject matter or a fatal defect apparent upon the face of the record must be made within five years after entry of the final decree. Intrinsic fraud relates to a matter adjudicated by the judgment, including perjury and false testimony, whereas extrinsic fraud relates to matters collateral to the judgment which have the consequence of precluding a fair hearing or presentation of one side of the case.

23 Pa.C.S. § 3332. In order to comply with 42 Pa.C.S. § 5505, appellant was required to file her motion to vacate within thirty (30) days after the entry of the divorce decree. She did not act within this time period. The trial court thus lacked jurisdiction to grant her petition absent an allegation of extrinsic fraud, lack of jurisdiction over the subject matter, or a fatal defect apparent on the face of the record.

We note that appellant has never argued that the lower court lacked subject matter jurisdiction to issue the divorce decree. In all other respects, we find that the opinion prepared by the Honorable Glenn McCracken, Jr., President Judge of Lawrence County, has correctly and succinctly analyzed appellant’s claim. We therefore adopt the following extract from the trial court as our own and we affirm on that basis:

Although the [appellant] acknowledges in her brief that the basis for vacating a divorce decree is extrinsic fraud or a fatal defect on the record, she does not indicate anywhere [in her brief] where such fraud occurred or what defect exists. Her argument, rather, is based on the equitable nature of divorce proceedings and the policy of the Divorce Code to effectuate economic justice between the parties. But none of this indicates why a court should exercise its equitable powers to vacate an earlier decree when the moving party had ample opportunity earlier in the proceedings [to object]. Nor do the cases cited in the [appellant’s] brief support her position. Both Foley v. Foley, 392 Pa.Super. 9, 572 A.2d 6 (1990) and Masciulli v. Masciulli, 194 Pa.Super. 646, 169 A.2d 562 (1961) were cases in which extrinsic fraud required the vacating of a divorce decree, while Levine v. Levine, 360 Pa.Super. 297, 520 A.2d 466 (1987) involved the distinction between spousal support and alimony pendente lite, but said nothing about when a divorce decree should be vacated. Finally, Wolk v. Wolk, 318 Pa.Super. 311, 464 A.2d 1359 (1983) enunciates the standards to be followed in considering a motion to bifurcate, but it does not indicate that a decree should be vacated when no such motion was ever filed.
This is a case in which the [appellant] had ample notice of every procedural step taken by the plaintiff. She had an adequate opportunity to ask for a bifurcation of the proceedings or to file a claim for economic relief, but never did so. Having waived her rights in this regard, and not having shown the type of fraud or defect on the record that would justify the extraordinary relief she seeks, she is not entitled to it. Ratarsky v. Ratarsky, 383 Pa.Super. 445, 557 A.2d 23 (1988), [aff'd, 525 Pa. 497, 581 A.2d 1377 (1990) ]; Tanis v. Tanis, 206 Pa.Super. 213, 213 A.2d 102 (1965). A party who never filed a counterclaim or any other type of pleading despite having notice and the opportunity to be heard cannot now complain that her rights are in jeopardy____ No basis for vacating the divorce decree having been shown, the motion will be denied.

Trial court opinion filed August 23, 1991 at 3-4. Because appellant has not advanced an argument which could justify a finding of extrinsic fraud, lack of jurisdiction over the subject matter, or a fatal defect apparent on the face of the record within the meaning of 23 Pa.C.S. § 3332, we conclude that the trial court properly denied appellant’s petition to vacate the divorce decree.

Order affirmed.

      . The certified record also contains a return receipt signed by appellant acknowledging service on August 26, 1988.

      . We note, as did the trial court, that the economic claims which concern appellant are still before the trial court. The equitable arguments raised on appeal are still viable and may be advanced in the equitable distribution hearing as a basis for awarding a larger share of the marital property to appellant.


text:
    612 A.2d 1067
    COMMONWEALTH of Pennsylvania v. Marlin FOUSE, Appellant.
    Superior Court of Pennsylvania.
    Argued May 19, 1992.
    Filed Sept. 8, 1992.

      Louis J. Kober, II, Greensburg, for appellant.
    Rita D. Hathaway, Asst. Dist. Atty., Greensburg, for Com., appellee.
    Before ROWLEY, P.J., and MONTEMURO and HESTER, JJ.
   ROWLEY, President Judge.

In this appeal from the judgment of sentence entered in the Court of Common Pleas of Westmoreland County, appellant Marlin Fouse raises the following issues: (1) whether the statute proscribing incest is applicable to a situation involving oral and anal intercourse between a father and his sons; (2) whether the statute proscribing incest is unconstitutionally vague as applied to the present case; (3) whether the prosecutor committed misconduct in her opening and closing statements; (4) whether appellant is entitled to a new trial on the basis of an irrelevant and unduly prejudicial remark by a defense witness; (5) whether appellant was denied due process when his wife testified as a witness for the Commonwealth; and (6) whether the cumulative effect of these errors warrants the granting of a new trial in the interests of justice and due process. After reviewing the record and considering the arguments of the parties, we affirm the judgment of sentence.

On April 12, 1990, appellant was charged with two counts of incest, two counts of involuntary deviate sexual intercourse, two counts of corruption of minors, and two counts of indecent assault. These charges arose from allegations that appellant and his wife had engaged in sexual activities with two of their sons. A jury trial commenced on April 29, 1991. On May 1, 1991, the jury found appellant guilty on all counts. After denying appellant’s post-verdict motions, the trial court sentenced him to an aggregate term of imprisonment of twenty-six to fifty-two years. This timely appeal was then filed.

In his first two issues, appellant challenges the application of the incest statute to his case. First, he contends that the statute does not apply to a situation involving oral and anal intercourse between a father and his sons. For the following reasons, we conclude that appellant was properly convicted under the incest statute.

The statute in effect when the crimes at issue were committed provides the following:

A person is guilty of incest, a misdemeanor of the first degree, if he knowingly marries or cohabits or has sexual intercourse with an ancestor or descendant, a brother or sister of the whole or half blood or an uncle, aunt, nephew or niece of the whole blood. The relationships referred to in this section include blood relationships without regard to legitimacy, and relationship of parent and child by adoption.

18 Pa.C.S. § 4302. In Commonwealth v. Rodriquez, 343 Pa.Super. 486, 495 A.2d 569 (1985), this Court noted, in dicta, that a sexual assault by an uncle against his nephew appeared to fall within the incest statute. Id., 343 Pa.Superior Ct. at 493-94 n. 3, 495 A.2d at 573 n. 3. Because this dicta is not controlling, we will consider appellant’s arguments against application of the incest statute to the present situation.

In his first argument in support of his position, appellant asserts that the purpose of the incest statute is to prevent genetic defects in the offspring which may result from incestuous sexual relations. Therefore, appellant argues, because the activity at issue cannot possibly result in offspring, the purpose of the incest statute is not furthered by applying it to the present situation.

Although the prevention of genetic defects is one rationale underlying the incest statute, this Court has recognized other purposes it serves as well. Specifically, “[t]he incest statute protects children from parental or familial sexual abuse and lessens the chance of genetic defects while promoting the solidarity of the family unit.” Commonwealth v. White, 341 Pa.Super. 261, 267, 491 A.2d 252, 255 (1985). In a situation involving a father and his sons, there is no chance that genetically-defective children will result from the incestuous activity. Nonetheless, the other two interests, namely, protection of the children and promotion of the solidarity of the family, are no less important in the present situation than in a situation involving family members of the opposite sex.

Furthermore, the incest statute applies equally to adoptive relationships and blood relationships. If the only purpose of the incest statute is to protect against genetic defects, the incest statute would not apply to relationships formed through adoption.

In further support of his position, appellant also contends that because the term “sexual intercourse” is not defined in the incest statute, the statute may be limited to only vaginal intercourse. Therefore, appellant would not be guilty of incest because he engaged in oral and anal, but not vaginal, intercourse.

Appellant recognizes that sexual intercourse is defined in the Crimes Code to include oral and anal intercourse. However, he contends that because that definition is located in Chapter 31 of the Crimes Code, titled “Sexual Offenses,” it does not apply to the incest statute, which appears in Chapter 43 of the Crimes Code, titled “Offenses Against the Family.” Where, as here, the legislature has defined a term in one chapter of the Crimes Code, we decline to conclude that the legislature intended for a different definition to apply where the same term is used in another chapter. Although incest is included in the chapter setting forth offenses against the family, the portion of the statute at issue here also involves sexual offenses. Accordingly, we conclude that the definition of sexual intercourse for purposes of the sexual offenses is equally applicable to the crime of incest.

In addressing this argument, the trial court also relied on the principles of construction set forth in section 105 of the Crimes Code. That section provides:

The provisions of this title shall be construed according to the fair import of their terms but when the language is susceptible of differing constructions it shall be interpreted to further the general purposes stated in this title and the special purposes of the particular provision involved____

18 Pa.C.S. § 105. Applying this principle, the trial court determined that incest includes anal and oral intercourse between a father and his sons for the following reasons, with which we agree:

First of all, the definition of sexual intercourse found in Webster’s Ninth New Collegiate Dictionary, (1987), in-eludes ‘intercourse involving genital contact between individuals other than the penetration of the vagina by the penis.’
Furthermore, as has been previously stated,, the purposes of the statute prohibiting incest, as construed by the Superior Court, are not only genetic integrity but also to protect children from parental sexual abuse and to promote the family unit. Therefore the Court should give to a statute a construction that would promote all of the purposes of the statute. Such a construction requires that this Court find that the crime of incest, as defined in Chapter 43 of the Crimes Code, includes anal and oral intercourse between a father and his sons.

Trial Court Opinion (Caruso, J.), 10/9/91, at 3-4.

In addition, we will not presume that the legislature intended an absurd result in enacting a statute. Such results would occur if we were to accept appellant’s position. For example, a mother who engaged in vaginal intercourse with her son would be guilty of incest, while a father who engaged in anal intercourse with his son would not be. Similarly, a father who engaged in vaginal intercourse with his daughter would be guilty of incest, but a father who engaged in anal intercourse with his son would not be. Clearly, appellant’s proposed interpretation of the statute would result in illogical, as well as arbitrary and discriminatory, results.

For the above reasons, we conclude that the incest statute applies to the present situation. Accordingly, appellant was properly convicted under that statute.

In a related issue, appellant contends that the incest statute is unconstitutionally vague as applied to this case. He asserts that “the statute does not give fair warning as to what types of sexual intercourse constitute the crime of Incest.” Appellant’s Brief at 15. In considering a vagueness challenge, we apply the following standards:

In order to pass constitutional muster ‘a criminal statute must give reasonable notice of the conduct which it proscribes to a person charged with violating its interdiction.’ In addition, the statute must provide a standard for law enforcement officials so as to prevent arbitrary and discriminatory enforcement. However, the constitutional requirement of notice does not serve to ‘invalidate every statute which could have been drafted with greater precision,’ and statutes under attack are not ‘to be tested against paradigms of legislative draftsmanship.’

Commonwealth v. Tavares, 382 Pa.Super. 317, 324-25, 555 A.2d 199, 202-03 (1989) (citations omitted), allocatur denied, 524 Pa. 619, 571 A.2d 382 (1989). As discussed above, “[i]t is ... very reasonable to believe that the definition [of sexual intercourse] found in Chapter 31 is equally applicable to the crime of Incest in Chapter 43.” Trial Court Opinion at 5. We conclude that appellant had fair notice that his acts of engaging in oral and anal intercourse with his sons violated the incest statute.

Moreover, we disagree with appellant that “[i]f the statute is not struck down, there will be some people prosecuted for Incest, while others who engage in the same conduct will escape arrest. There will be arbitrary enforcement.” Appellant’s Brief at 19. Appellant does not explain, and we fail to comprehend, why there will be arbitrary enforcement of the incest statute. In fact, the incest statute at issue became effective in 1973. If there has been arbitrary enforcement, it was incumbent upon appellant to demonstrate that arbitrariness. See Commonwealth v. Westcott, 362 Pa.Super. 176, 196, 523 A.2d 1140, 1150 (1987) (statute is presumed to be constitutional and burden of disproving presumption belongs to defendant), allocatur denied, 516 Pa. 640, 533 A.2d 712 (1987).

Appellant next sets forth three allegations of error committed during trial which he asserts warrant a new trial. First, he argues that the prosecutor committed misconduct in both her opening and closing statements. Second, he contends that he is entitled to a new trial because of an irrelevant and unduly prejudicial statement made by a defense witness. Third, he asserts that he was denied due process by the use of his wife’s testimony at trial in that she was given substantial incentive to commit perjury. Because these issues have been thoroughly discussed by Judge Caruso in his opinion, we affirm the judgment of sentence on the basis of that opinion. Trial Court Opinion at 6-17.

Finally, appellant contends that he should be awarded a new trial because of the cumulative effect of the above errors. The trial court has discretion to order a new trial where each individual error can be cured by cautionary instructions, but the cumulative effect of such errors deprives the defendant of a fair and impartial trial. Commonwealth v. Kramer, 389 Pa.Super. 136, 566 A.2d 882 (1989). After thoroughly reviewing the record, we conclude that in the present case, appellant was not deprived of a fair and impartial trial. Accordingly, neither the individual errors he sets forth nor the cumulative effect of these asserted errors warrants a new trial.

Judgment of sentence affirmed.

      . We note that this conclusion does not conflict with the rule of strict construction of penal statutes as that rule "does not mandate that the words of a criminal statute be relegated to their narrowest meaning permissible." Commonwealth v. Westcott, 362 Pa.Super. 176, 194, 523 A.2d 1140, 1149 (1987), allocatur denied, 516 Pa. 640, 533 A.2d 712 (1987).

      . Appellant apparently argued in the trial court that evidence of arbitrariness is shown by the fact that his wife was not charged with incest. See Trial Court Opinion at 6. The trial court appropriately discussed this assertion in its opinion. Id.

      . Emphasizing various statements, appellant contends that the prosecutor expressed her personal belief in his guilt and attempted to inflame the passions of the jurors.

      . During cross-examination of the victims’ brother, the prosecutor asked whether he remembered appellant beating the victims, to which the witness responded, "I remember incidents with Lisa [appellant’s daughter], all right." Notes of Testimony, 5/1/91, at 223-24.

      . Appellant’s wife was offered a plea bargain by the assistant district attorney who was initially handling her case. Pursuant to that bargain, she would be sentenced only to a term of probation if she would enter a rehabilitation program for sex offenders. Subsequently, the wife’s case was assigned to a different assistant district attorney who withdrew the plea offer. At the time of appellant’s trial, his wife's case was still pending.


author: OLSZEWSKI, Judge:

text:
    612 A.2d 1071
    Gloria JACKSON and Samuel Colter, Appellants, v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued May 12, 1992.
    Filed Sept. 9, 1992.

      Kenneth W. Richmond, Philadelphia, for appellants.
    David M. McCormick, Philadelphia, for appellee.
    Before WIEAND, OLSZEWSKI and KELLY, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the judgment of the Philadelphia Court of Common Pleas entered August 30, 1990. The orders which resulted in this judgment confirmed an order of arbitrators and struck appellant’s amended petition to vacate the award of arbitrators. A discussion of the case follows.

The trial court adequately summarized the facts of this case in its opinion.

Plaintiffs Gloria Jackson and Samuel Colter were injured in an automobile accident on November 22, 1985. At the time of the accident, Jackson was driving the car and Colter was a passenger. The vehicle was owned by Jackson and was insured by the Defendant, Government Employees Insurance Company (GEICO). The case proceeded before an Arbitration Panel which included Donald J. Klein, Esquire, John J. Coffey, Esquire and Ronald Segal, Esquire. By letter of September 20, 1989, Mr. Klein informed all parties that the panel found in favor of Jackson and Colter in the amount of $25,000 each. The letter also indicated that Mr. Segal dissented in the Award. Plaintiffs have petitioned this court to vacate the said Award.

Trial court opinion, D’Alessandro, J., dated August 3, 1990. The trial court by orders dated May 3, 1990, confirmed the award of arbitrators and struck appellants’ amended petition to vacate the award of arbitrators.

We begin by noting that the arbitration in this case was governed by the provisions of the Uniform Arbitration Act [hereinafter “Act”]. 42 Pa.C.S.A. Sections 7301-7320 (Purdon’s 1981).

Appellants have presented four questions for our consideration. First, appellants argue that the neutral arbitrator’s disregard of certain medical testimony constituted a denial of their right to due process of law. Second, appellants argue that they should be allowed to take depositions of the arbitrators to determine the actions of the neutral arbitrator. Third, appellants argue that their amended petition to vacate the award of arbitrators should not have been stricken as untimely. Fourth, appellants argue that because the award of arbitrators did not comply with the requirements of 42 Pa.C.S.A. Section 7310(a), the award was invalid. We take up the case below.

We will first address appellants' fourth argument. Appellants’ fourth argument is that because the award of arbitrators did not comply with the requirements of 42 Pa.C.S.A. Section 7310(a), the award was invalid. We agree.

§ 7310. Award of Arbitrators
(a) General rule. — The award of arbitrators shall be in writing and signed by the arbitrators joining in the award. The arbitrators shall deliver a copy of the award to each party personally or by registered or certified mail, or as prescribed in the agreement to arbitrate.

42 Pa.C.S.A. Section 7310(a) (Purdon’s 1982) (emphasis added).

In this case, the award was signed only by one of the arbitrators. This is insufficient in two respects. First, the award does not comply with the mandate of 42 Pa.C.S.A. Section 7310(a). Second, the award does not reflect a majority because it indicates only a single vote in favor of the award. In Goeller v. Liberty Mutual Insurance, 523 Pa. 541, 568 A.2d 176 (1990), the Pennsylvania Supreme Court decided this same issue. The court in Goeller found that an award of arbitrators that was signed by only a single arbitrator was a nullity. Goeller, 523 Pa. at 543-545, 568 A.2d at 177. The question addressed by the Supreme Court in Goeller was whether there was an arbitration award in the first place. Id. The Supreme Court concluded that due to the failure to comply with the statutory requirement, there was no award under the Act. The Supreme Court further concluded that because the parties agreed to be bound by the Act, there was no award under their agreement. Id.

We are bound by the rulings of our Supreme Court. In this case the parties agreed to arbitration under the Act. The failure to comply with the requirements of 42 Pa.C.S.A. Section 7310(a) rendered the award a nullity. The trial court struck appellants’ petition to vacate the award based upon the time limitation of 42 Pa.C.S.A. Section 7314(b). The trial court found that appellants’ failure to comply with the time limitation for filing a petition to vacate waived appellants’ challenge to the validity of the award. The trial court erred in this regard. There was no award entered in this case to vacate. The time limitation of 42 Pa.C.S.A. Section 7314(b), therefore, did not apply. We find it necessary to remand this case with direction that the trial court direct that a proper award be entered.

Appellants’ third argument is that the trial court should not have struck their amended petition to vacate the award of arbitrators as untimely. We agree. For the reasons set forth above, we have found that there was no award in this case. The trial court should have directed the entry of a proper award, regardless of the timing of appellants’ petition.

Appellants’ first and second issues are related in that they deal with appellants’ claim that the arbitration was not impartial. Appellants’ first argument is that the arbitration was not fair and impartial and, therefore, the award should have been vacated. The trial court did not agree. The trial court found that there was no indication of record that the arbitration was not fair. We agree. Appellants’ argument in this regard is based upon statements allegedly made by one of the arbitrators at the arbitration hearing. These statements are not of record in this matter and, accordingly, they will not be considered in this Court’s decision. It is not the duty of the court to preserve matters for appellate review. Since appellants have failed to preserve the basis of this argument in the record, appellants are entitled to no relief.

Appellants’ second issue is that the trial court erred by failing to order depositions of two of the arbitrators, which depositions would allegedly support appellants’ contentions that the arbitration was not fair and impartial. Initially we note that appellants had the duty under Pa. R.Civ.P. 209 to proceed with depositions on any disputed issues of fact or face the possibility that after hearing and the issuance of a rule absolute, the matter would be decided on the basis of the petition and answer. In this case appellants chose to file a petition requesting leave of court to depose two of the arbitrators. The trial court denied the petition for leave to depose the arbitrators. The trial court’s reason for denying the petition was that the depositions would be an improper invasion of the process of deliberation. The real issue here is whether an arbitrator’s affidavit or testimony can be used to attack an award of arbitrators.

The general rule is that an arbitrator’s affidavit or testimony cannot be used to impeach an award of arbitrators. Annotation, Admissibility of Affidavit or Testimony of Arbitrator to Impeach or Explain Award, 80 A.L.R.3d 155 Sections 2(a), 3, 4, 5 (1977). Our research has revealed no caselaw in this Commonwealth directly answering whether, a party can take the deposition or affidavit of an arbitrator in order to impeach an award of arbitrators. The general rule that an arbitrator’s testimony cannot be used to impeach the award is expressed in Patriotic Order v. Hartford Insurance, 305 Pa. 107, 157 A. 259 (1931). Patriotic Order contains little explanation of the rationale for application of the rule. The one thing that is clear from Patriotic Order is that the Supreme Court recognized the confusion and lack of finality that would be introduced by allowing such challenges. We find that this is a sufficient basis for applying the general rule. Arbitration is by its very nature a remedy that can be selected by parties or imposed by law for the purpose of providing an expeditious resolution to a dispute. Allowing challenges to the deliberation process would override all limitations on the review of arbitration awards. See 42 Pa.C.S.A. Sections 7313, 7314, 7315, 7341 (Pardon’s 1981). Arbitration would be transformed from a method of dispute resolution into another pretrial formality. This would clearly be inappropriate. We find that because taking the deposition or affidavit of an arbitrator will not lead to the production of admissible evidence, the trial court properly denied appellants’ petition for leave of court to depose the arbitrators.

For the reasons set forth above, we reverse and remand in part, and affirm in part. The trial court is specifically ordered to direct the entry of a proper arbitration award.

Judgment reversed and remanded in part, affirmed in part. Jurisdiction relinquished.

KELLY, J., concurs in the result.

      . We note here that in a case involving arbitration under the Act, the only appropriate inquiry is whether the award of arbitrators was the result of "evident partiality,” 42 Pa.C.S.A. Section 7314(a)(l)(ii) (Purdon’s 1981), or "it is clearly shown that a party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of tin unjust, inequitable or unconscionable award." 42 Pa.C.S.A. Section 7341 (Purdon’s 1981) (common law arbitration standard made applicable as a basis to vacate a statutory arbitration award by 42 Pa.C.S.A. Section 7314(a)(l)(i) (Purdon’s 1981)).

      . We note here that appellants’ specific allegations of bias appear to center around allegations of bias on the part of the neutral arbitrator. Appellants raise three broad allegations of bias, none of which are supported in the record. First, appellants argue that the neutral arbitrator did not reveal his past contact with one of the medical experts. Second, appellants argue that the neutral arbitrator summarily dismissed competent medical testimony. Third, appellants argue that the actions of the arbitrator appointed by the defense and the neutral arbitrator effectively excluded appellants’ arbitrator from the deliberations. As was stated above, these bald assertions are completely unsupported in the record.


author: KELLY, Judge.

text:
    612 A.2d 1075
    Bruce C. MORAN, Appellee, v. Glyndia R. MORAN, Appellant.
    Superior Court of Pennsylvania.
    Argued June 3, 1992.
    Filed Aug. 25, 1992.

      Robert Glessner, York, for appellant.
    Andrew B. Brown, York, for appellee.
    Before MONTEMURO, KELLY and CERCONE, JJ.
   KELLY, Judge.

In this appeal, we are called upon to determine whether the trial court properly held that an “agreement” made during a “conciliation conference” between the parents was binding upon them, thus adopting the conciliator’s proposed order which granted partial physical custody of the couple’s infant daughter to the father. We find that the trial court erroneously treated the conciliator’s proposed order as a final order, and therefore, committed reversible error by not granting a hearing after receiving letters from the mother and the infant’s doctors indicating that the proposed custody arrangement reached at the “conciliation conference” would adversely affect the infant by interfering with her breast-feeding schedule. Thus, we vacate the trial court’s order and remand for a hearing on the issue of whether the partial physical custody arrangement would adversely interfere with the infant’s breast-feeding schedule.

The relevant facts and procedural history are as follows. Glyndia R. Moran (hereinafter the mother) and Bruce R. Moran (hereinafter the father) are the natural parents of Megan Marie Moran (hereinafter the child), who was born on August 24, 1991. The father filed a complaint for custody on September 17, 1991. The parties, with counsel, appeared before a court-appointed conciliator on October 3, 1991, at which time mother and father submitted conference memoranda. At the conference, the parties came to an agreement and the conciliator drafted a proposed order memorializing the agreement. However, on the next day, via a letter, the mother notified the conciliator, the father’s counsel, and the court that the agreement was rescinded. The mother supplemented her letter, dated October 4, 1991, with letters from two medical doctors. The doctors’ letters indicated that the child may be adversely affected as a result of the proposed order’s custody arrangement because the child was being breast-fed by the mother. For this reason, the mother asked in her letter for a hearing. The father countered with a letter, dated October 8, 1991, that addressed the breast-feeding issue. In this letter, the father reminded the judge of another breast-feeding case in which she ruled in favor of the father.

On October 16, 1991, the court adopted an order that encompassed the parties’ agreement at the conciliation conference. However, the court made no reference to the letters of the two doctors, mother or father. The October 16, 1991 order stated as follows:

At the Conciliation Conference the parties reached an agreement and an Order shall be entered as follows: ******
Partial custody rights of the Father are as follows.
(1) Every other weekend from Friday at 5:00 P.M. until Sunday at 5:00 P.M. However, this alternating weekend schedule shall be phased in. Beginning with the weekend of October 4, 1991, Father shall exercise visitation from Saturday at 9:00 A.M. until Saturday at 6:00 P.M. during the month of October. For all alternating weekends during the month of November, Father shall exercise visitation from Friday at 5:00 P.M. until Saturday at 6:00 P.M. In December the full weekend visitation shall go into effect from Friday at 5:00 P.M. until Sunday at 5:00 P.M.
(2) Beginning in December, 1991, on Tuesday and Thursday evenings each week from 5:00 P.M. until 7:00 P.M. The evening visitation shall extend as the child grows older to a later hour in the evening as is appropriate for her normal bedtime hour.
(3) Up to six (6) weeks during the summer provided that at least thirty (30) days written notice shall be provided to Mother, and the parties shall agree as to when the six weeks shall be exercised.
(4) Father’s rights of visitation on holidays shall alternate with the holidays of Thanksgiving, New Year’s Day, Memorial Day, Fourth of July and Labor Day. The visitation shall be exercised from 9:00 A.M. until 6:00 P.M.; provided, however, that if the holiday falls on a Monday subsequent to Father’s visitation, his weekend visitation shall extend until Monday at 6:00 P.M. The alternating holidays shall begin with Father’s visitation on Thanksgiving, 1991 and alternate thereafter.
(5) Father shall have visitation on Father’s Day and Mother shall have visitation on Mother’s Day irrespective of when Father’s weekend visitation occurs.
(6) Regarding the Christmas holiday, Father shall always have visitation from noon Christmas Day until noon on December 26. The remainder of the Christmas holiday shall be split as the parties may agree.
(7) Father shall have the child at least two or three hours on the child’s birthday.
(8) Any other times as the parties may agree.
We recognize that Mother is presently breast-feeding the child. However, we believe that appropriate measures can be taken by the Mother so as not to interrupt the child’s feeding schedule.
* * * * * *

This timely appeal followed.

On appeal, the mother raises the following issues for our review:

I. WHETHER THE COURT ABUSED ITS DISCRETION IN FINDING THAT THE VISITATION SCHEDULE TO WHICH THE PARTIES “AGREED” DID NOT INTERFERE WITH MOTHER’S BREASTFEEDING REGIMEN AFTER MOTHER PRESENTED LETTERS FROM TWO DOCTORS SAYING IT DID INTERFERE, WITHOUT HOLDING A HEARING ON THIS ISSUE?
II. WHETHER THE “AGREEMENT” OF THE PARTIES AT A “CONCILIATION CONFERENCE” IS BINDING IF ONE PARTY SEEKS TO WITHDRAW FROM THE AGREEMENT FOR GOOD CAUSE SHOWN BEFORE THE ENTRY OF THE FINAL ORDER?

Mother’s Brief at 5.

The mother argues that the court erred in calling the mother’s and doctors’ letters an “inappropriate and improper method of trying to vacate the order ex parte." We agree.

As the mother correctly asserts, conciliators do not issue orders; they merely summarize and propose orders.

Following the conclusion of each conference, the conciliator shall prepare a conciliator’s summary together with a proposed order encompassing the agreement of the parties, to be submitted to the court for entry as an Order. If no final agreement has been achieved, a summary of the items as set forth in this rule shall be submitted to the Court, (mother’s emphasis)

York County Local Rule 1915.3(b)(9). Thus, the trial court erred in treating the alleged agreement of the parties at the conciliation conference as if it were a final order. Moreover, no final agreement had been achieved. The mother submitted letters to the court, father’s counsel, and the conciliator the day after the conference and prior to the trial court’s issuance of a final order. In doing so, the mother properly sought to raise the breast-feeding issue before a final order was entered. The court should have granted a hearing because the agreement was not binding upon the court. See Daniel K.D. v. Jan M.H., 301 Pa.Super. 36, 39, 446 A.2d 1323, 1324 (1982).

Moreover, the mother was correct in noting that the communication was not ex parte. Black’s Law Dictionary 5th ed. at pg. 517 defines “ex parte ” as “on one side only ... without notice to, or contestation by, any person adversely interested.” The father’s letter, dated October 8, 1991, clearly shows notice of the breast-feeding issue and the contestation thereof.

In conclusion, the court erred in calling the mother’s and doctors’ letters an “inappropriate and improper method of trying to vacate the order ex parte.” The communications were not ex parte because all relevant parties were notified of the communications. Moreover, at the time the letters were sent to the trial court, no final order had been entered, as conciliators do not have authority to issue final orders.

Based upon the foregoing, the trial court’s order is vacated and the case is remanded for a hearing on the issue of whether visitation schedule would interfere with the child’s breast-feeding schedule. Jurisdiction is relinquished.

      . Although we have remanded this case for a hearing on the breastfeeding issue, the need for this hearing may already have been rendered moot if the allegations, raised at oral argument, that the child is no longer breast-feeding, prove to be true.