author: OLSZEWSKI, Judge:

text:
    537 A.2d 829
    WIDENER UNIVERSITY, Appellant, v. FRED S. JAMES & CO., INC.; and Marsh & McClennan, Inc.; and American Casualty Co. of Reading, Pennsylvania; Commercial Union Insurance Company; Insurance Company of North America; and Reliance Insurance Company, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 6, 1987.
    Filed Jan. 7, 1988.
    Reargument Denied Feb. 26, 1988.

      Rocco P. Imperatrice, III and Francis J. Leto, Media, for Widener, appellant.
    Robert J. Hoelscher, Philadelphia, for James, appellee.
    John Gerstein, Washington, for American Casualty, appellee.
    Edward Connelly, Philadelphia, for Commercial, appellee.
    Neil Clain, Philadelphia, for Insurance Co., appellee.
    Lisa Passnate, Philadelphia, for Reliance, appellee.

      Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the order of the trial court denying plaintiff/appellant’s motion for summary judgment and granting summary judgment in favor of all defendants/appellees. For the reasons stated below we affirm the trial court’s order.

This case arose in the following manner. Appellant, Widener University (Widener), brought a civil action in the Court of Common Pleas, Delaware County, against defendants American Casualty Company of Reading, Pennsylvania (American Casualty) and insurance brokers, Fred S. James & Co., Inc. and Marsh and McClennan, Inc. Widener alleged that American Casualty breached a contract of insurance by failing to reimburse Widener for legal fees and expenses incurred by Widener in defense of litigation commenced by the former dean of Widener’s Delaware Law School against Widener, Delaware Law School, and several of their respective officers and trustees.

Widener alleged, alternatively, that the defendant brokers were liable to Widener for reimbursement of the legal fees and expenses for improper performance of, or failure to perform, their obligations to Widener as its insurance brokers.

American Casualty joined as additional defendants Commercial Union Insurance Company (Commercial Union), Insurance Company of North America (INA), Reliance Insurance Company (Reliance) and St. Paul Fire and Marine Insurance Company. American Casualty alleged that the additional defendants were either solely liable to Widener for reimbursement of legal fees and expenses, or liable to American Casualty for contribution for any amounts which American Casualty might be compelled to pay Widener.

Following motions and cross-motions for summary judgment, an order was entered by the trial court granting summary judgment in favor of all defendants and against Widener. Widener now appeals. The complexity of this case requires that we deal with each defendant separately; however, we note at the outset our standard of review in an appeal from an order granting a motion for summary judgment.

When reviewing the granting of summary judgment:

The court must accept as true all well-pleaded facts in the non-moving party’s pleadings and give the non-moving party the benefit of all reasonable inferences to be drawn therefrom. In order to uphold a grant of summary judgment, the record must demonstrate both an absence of genuine issues of material fact and an entitlement to judgment as a matter of law.

Craig Coal Mining Co. v. Romani, 355 Pa.Super. 296, 298-99, 513 A.2d 437, 438 (1986), appeal granted 514 Pa. 624, 522 A.2d 50 (1987) (quoting Chicarella v. Passant, 343 Pa.Super. 330, 340, 494 A.2d 1109, 1114 (1985).

American Casualty

The issues to be determined with respect to appellee, American Casualty, are: (1) whether American Casualty was contractually obligated to reimburse Widener for defense costs incurred in connection with the four “Avins” lawsuits; and (2) whether American Casualty is estopped from refusing to reimburse Widener’s defense costs.

The resolution to the first issue requires a determination as to whether the American Casualty insurance policy provided only “excess” coverage in this case. Our review of the record reveals that there is no genuine issue of material fact to be tried in this instance; therefore, we proceed to a discussion of whether American Casualty is entitled to judgment as a matter of law.

American Casualty supplied Widener with a board of education liability policy which provided insurance for the directors, officers and trustees of Widener for claims made against them for any breach or neglect in the discharge of their duty or

any actual or alleged errors or misstatement or misleading statement or act or omission or neglect or breach of duty by the Assureds in the discharge of their duties, individually or collectively, or any matter claimed against them solely by reason of their being or having been Assureds during [the] policy period.

American Casualty policy, paragraph III(c).

This coverage of wrongful acts as defined above extended to:

any amount which [Widener is] legally obligated to pay ... for a claim or claims made against [Widener] for a Wrongful Act and shall include but not be limited to damages, judgments, settlements and costs, cost of investigation and defense of legal actions ... claims or proceedings and appeals therefrom ...

American Casualty policy, paragraph III, as modified in Liberalization Endorsement (emphasis added).

In addition, the policy obligated Widener to select and retain legal counsel of its own choosing. Further, the American Casualty policy, under an endorsement which amended paragraph IV(b)(l) of the policy, expressly excluded the following:

(b) The insurer shall not be liable to make any payment for loss in connection with any claim against the Assureds, and/or the School District

(1) which is insured by another policy or policies except in respect of any excess over and above the amount or amounts of such other policy or policies

(Emphasis added.).

Commercial Union, INA and Reliance issued general liability policies which provided occurrence coverage for personal injury. The definition of personal injury included defamation. The general liability policies provided that the insurers shall have the right and duty to defend any suit against the insured on account of such personal injury.

American Casualty contends that its policy was “in excess of policies issued by Reliance, INA and Commercial Union and that American Casualty had no defense obligations to Widener until exhaustion of coverage under the ‘primary’ coverage of Reliance, INA and Commercial Union Policies.” Widener, in challenging the trial court’s finding that American Casualty was an “excess” insurer, asserts that “other or double insurance exists only where there are two or more insurance policies covering the same interest, same subject matter and against the same risk.” Blue Anchor Overall Co., Inc. v. Pennsylvania Lumbermens Mutual Insurance Co., 385 Pa. 394, 398, 123 A.2d 413, 415 (1956). Widener asserts that the coverage provided by the American Casualty policy is fundamentally different from the general liability policies.

A careful review of Blue Anchor reveals that it does not compel the conclusion that American Casualty was not an “excess” insurer. Blue Anchor dealt with a situation where the defendant’s insurance policy was the only one which insured against the risk of loss at issue in that case. In the case at hand, it is undisputed that each of the four underlying suits contained one or more allegations that fell potentially within the scope of coverage afforded by the “duty-to-defend” policies issued by Commercial Union, Reliance and/or INA. In Pennsylvania, an insurer with a “duty to defend” must provide a complete defense on behalf of its insured so long as even one allegation of the complaint falls potentially within the scope of the coverage of the insured’s policy. Cadwallader v. New Amsterdam Casualty Co., 396 Pa. 582, 152 A.2d 484 (1959); Brugnoli v. United National Insurance Co., 284 Pa.Super. 511, 426 A.2d 164 (1981), clarified 284 Pa.Super. 520, 434 A.2d 105 (1981). Therefore, the loss for which Widener is seeking reimbursement from American Casualty, its defense costs, is also covered by the general liability policies and Widener’s express provision excluding payment for a loss which is insured by another policy, must be given effect.

Widener argues alternatively that, in the event we find American Casualty to be an “excess” insurer, the “other insurance” clause constitutes an escape clause and, therefore, cannot be given effect. See Insurance Company of North America v. Continental Casualty Co., 575 F.2d 1070 (3rd Cir.1978) (escape clauses generally in disfavor with the courts). Widener’s argument is premised on its contention that American Casualty has a “duty to defend.” Pacific Indemnity Co. v. Linn, et al., 590 F.Supp. 643 (E.D.Pa.1984), aff'd 766 F.2d 754 (3rd Cir.1985) (the duty to defend is unaffected by “other” insurance clause). Widener’s argument is fallacious. American Casualty has no “duty to defend” in this case. See King Aluminum Corp. v. William Hyndman III Insurance Agency, Inc., 370 F.Supp. 621 (E.D.Pa.1974) (no duty to defend where policy does not state one). Furthermore, American Casualty’s “excess” clause cannot be construed as an “escape” clause. See Insurance Company of North America v. Continental Casualty Co., supra (“escape” clause provides that the company invoking it is relieved from any obligation to the insured if other coverage is available). See also Liberty Mutual Insurance Co. v. Pacific Indemnity Co., 579 F.Supp. 140 (W.D.Pa.1984) (escape clause held to exist where policy provided it afforded no coverage in the event the insured has other insurance). As the language in American Casualty’s policy provides simply that American Casualty is liable for amounts in excess of that covered by other policies, we conclude that American Casualty’s “excess” provision should not be struck down as an “escape” clause, but must be given its intended effect.

We now turn to the issue of whether American Casualty is estopped from refusing to reimburse Widener’s defense costs. To seek relief under the doctrine of promissory estoppel, plaintiffs must plead all facts necessary to support such a claim in their complaint. See DiSante v. Russ Financial Co., 251 Pa.Super. 184, 380 A.2d 439 (1977); Lakenau Hospital v. Madway, 410 Pa. 268, 189 A.2d 592 (1963). We have reviewed appellant’s complaint in this matter and have found that the necessary facts have not been pleaded. Therefore, this claim is not properly before this Court and we will not undertake a review of it.

Reliance, INA, Commercial Union

Widener contends that summary judgment should not have been granted in favor of Reliance, INA and Commercial Union because of the existence of genuine issues of material fact. It is not disputed that the general liability policies issued by Reliance, INA and Commercial Union provided coverage for one or more of the “Avins” actions and that the terms of these policies imposed upon the insurers a duty to defend in the underlying actions. Widener, however, asserts that the issues of fact pertain to whether: (1) the defense tendered was adequate; (2) entries of counsels’ appearances were untimely; and (3) Widener refused the defense tendered. Widener makes these assertions in the face of its prior statements that: (1) it never timely notified the other carriers of certain of the “Avins” actions in question (appellant’s brief at 32); and (2) had American Casualty informed Widener that it would not reimburse for the costs of defense, Widener would have allowed its other carriers to assume its defense (appellant’s brief at 32).

We have reviewed the record and are satisfied that no genuine issue of material fact exists with respect to the three areas asserted by Widener to be in dispute. The question remains, however, whether appellees were entitled to judgment as a matter of law.

Appellees contend that the duty to defend is not triggered until the insured requests the carrier to defend it. Hartford Accident and Indemnity Co. v. Gulf Insurance Co., 776 F.2d 1380 (7th Cir.1985). As was already stated the fact that Widener never timely notified appellees of certain of the “Avins” actions is not disputed. Late notice, however, is not sufficient to relieve an insurer of its duty to defend when it is otherwise reasonably alerted of an action to which its duty would extend. Philadelphia Electric Co. v. Aetna Casualty and Surety Co., 335 Pa.Super. 410, 484 A.2d 768 (1984). In the present case, however, not only was Widener’s notice to appellees untimely but Widener failed to request appellees to provide a defense and refused counsel that appellees nevertheless appointed. Therefore, we find that judgment in favor of Commercial Union, INA, and Reliance was proper.

Fred S. James, Inc. and Marsh and McClennan, Inc.

Widener appeals the trial court’s order granting summary-judgment in favor of its insurance brokers. Widener contends that in the event the insurance carriers are found not to be liable to Widener because of late notice of the underlying lawsuits, then Widener would have a viable claim against its brokers for their failure to provide such notice.

Our affirmance of the trial court’s grant of summary judgment in favor of the insurance brokers rested upon finding that American Casualty was an “excess carrier and that not only was the notice to the general liability carriers late, but Widener failed to request a defense and refused counsel that was appointed. The alleged failure of the insurance brokers to notify the carriers of the underlying lawsuits was not the linchpin of our affirmance of the trial court. In fact, in view of Widener’s later actions in this regard, any failure of the brokers to notify the carriers of the lawsuits would appear to be harmless.

We, therefore, affirm the order of the trial court granting summary judgment in favor of all appellees.

      . Suit was originally brought against CNA Insurance Companies. The parties agreed to amend the action to substitute American Casualty Company of Reading, Pennsylvania as a party defendant. American Casualty is, apparently, one of the CNA group of companies. (Plaintiffs motion for summary judgment, p. 3).

      . Widener is seeking reimbursement for legal fees totalling $859,-765.83 in the following actions:

        Avins v. Widener, Civil Action No. 76-222 (D.Del.)

        Avins v. Hannum, Civil Action No. 79-89 (E.D.Pa.)

        Avins v. Hannum, Civil Action No. 79-2089 (E.D.Pa.)

        Avins v. Dixson, Civil Action No. 81-1248 (E.D.Pa.)

      . A voluntary discontinuance was entered against St. Paul Fire and Marine Insurance Company.

      . One type of policy, the occurrence policy, keys upon when that conduct [conduct giving rise to liability] occurs during the policy period, the insurer has a duty to indemnify and defend the insured regardless of when the claim against the insured is made----the other type of policy, the claims-made policy, keys upon when the claim was asserted against the insured. If it is made against the insured during the policy period, the insurer has to perform under the contract regardless of when the conduct giving rise to the claim occurred.

      . All of the "Avins" actions contained, inter alia, allegations of defamation.

      ; See Responses of additional defendants to requests for admissions propounded by American Casualty. Each of the additional defendants admitted that the following law suits contained one or more allegations that fell potentially within the scope of coverage afforded by their policies:
      INA: Nos. 79-89, 81-1248, 79-2089.
      Commercial Union: Nos. 79-89, 79-2089, 76-222, 81-1248.
      Reliance: No. 81-1248.

      . Furthermore, we are of the opinion that any facts relating to whether: (1) the defense tendered was adequate; (2) entries of counsels’ appearances were untimely are not material in view of Widener’s implied admission that it refused to allow the other carriers to assume its defense.

      . There is evidence that at least one of the insurers learned of the "Avins” actions through other sources. (Reliance brief at 5).

      . Commercial Union appointed counsel who entered his appearance on behalf of Widener in actions Nos. 79-89, 79-2089, 81-1248 (R. at 1340a-1347a).
      INA appointed counsel who entered his appearance on behalf of Widener in action No. 79-89 (R. at 1787a).

        Reliance prepared a non-waiver agreement and transmitted it to Widener with a letter indicating the law firm to which Reliance had assigned the lawsuit (R. at 1543a).
      Duty to defend insurer has right to defend litigation and to select counsel. See AC & S, Inc. v. Aetna Casualty and Surety Co., 764 F.2d 968 (3rd Cir.1985); if insured refuses duty-to-defend insurer's offer of counsel, the duty-to-defend insurer has no obligation to the insured in connection with the defense of the claim. Ezell v. Hayes Oil Field Construction Co., 693 F.2d 489 (5th Cir.1982), cert. denied, Hayes Oil Field Construction Co. v. United States Fidelity and Guaranty Co., 464 U.S. 818, 104 S.Ct. 79, 78 L.Ed.2d 90 (1983).


source: Caselaw Access Project

license: Public Domain

text:
    537 A.2d 834
    COMMONWEALTH of Pennsylvania v. Anthony Lee CESSNA, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 3, 1987.
    Filed Feb. 1, 1988.

      Joseph M. Farrell, Palmyra, for appellant.
    John E. Feather, Jr., Assistant District Attorney, Lebanon, for Com., appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence imposed after appellant was found guilty of first-degree murder. On appeal, appellant challenges the sufficiency of the evidence and claims that the trial court erred in (1) admitting appellant’s oral and written statements made to police prior to preliminary arraignment; (2) refusing to permit appellant to cross-examine the wife of the victim as to possible motives; (3) refusing to strike testimony of appellant’s former girlfriend concerning the contents of letters written by appellant; and (4) not transferring the case to juvenile court. We find that all of appellant’s contentions lack merit and, accordingly, affirm the decision of the trial court.

In the early morning of October 8, 1985, the victim, Richard Neidig, was shot in the head and killed while sleeping in his trailer. After discovering the body shortly after 8:00 a.m. on the same day, Joann Neidig, wife of the victim, called the Pennsylvania State Police, who arrived at approximately 8:30 a.m. and began investigation. At 11:30 a.m. Mrs. Neidig and appellant, who is Mrs. Neidig’s son and stepson of the victim, signed a consent form permitting the troopers to search the trailer. After the search, appellant and his mother were transported to police barracks for interviews. Appellant’s interview commenced at 4:00 p.m., and he was placed under arrest at 4:55 p.m. At 10:45 p.m., appellant was preliminarily arraigned.

Appellant was formally arraigned on November 6, 1985. Pretrial motions requesting suppression of appellant’s confession and transfer of the case to juvenile court were filed and denied. Trial by jury commenced on April 7, 1986; during trial, however, appellant entered into a plea agreement with the district attorney whereby he pleaded guilty to a general charge of murder. On April 18, 1986, after a degree of guilt hearing, the trial court entered a verdict of guilty of murder in the first degree. On February 2, 1987, appellant was sentenced to life imprisonment. This appeal followed.

Appellant first challenges the sufficiency of the evidence to support the premeditation element of first-degree murder. Specifically, appellant contends that his voluntary ingestion of LSD prior to the murder negated the specific intent necessary to sustain a first-degree murder conviction. We note, preliminarily, that in reviewing the sufficiency of the evidence, we must view all the evidence, together with the reasonable inferences gleaned therefrom, in the light most favorable to the verdict winner. Commonwealth v. Hamilton, 339 Pa.Super. 1, 488 A.2d 277 (1985). The appropriate test is whether the evidence, when viewed in this light, is sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984).

It is well settled that evidence of a drugged condition, if believed, may operate to negate the intent necessary for a conviction of murder in the first degree. 18 Pa.C.S.A. § 308; Commonwealth v. Stark, 363 Pa.Super. 356, 526 A.2d 383 (1987). A defendant, however, must have been so overwhelmed by the drug to the point of losing his faculties so as to be incapable of forming a specific intent to kill. See id., 363 Pa.Superior Ct. at 364, 526 A.2d at 387. Our Supreme Court has declared that evidence of a drugged condition is submitted for consideration to the fact finder, who determines the validity of the claim. Commonwealth v. Fairell, 476 Pa. 128, 381 A.2d 1258 (1977). The trier of fact may believe any, all, or none of the testimony offered at trial. Commonwealth v. Verdekal, 351 Pa.Super. 412, 506 A.2d 415 (1986).

In the instant case, regarding appellant’s alleged ingestion of LSD, the appellant testified that he bought the LSD at an unidentified truck stop from someone he did not know. Additionally, appellant never mentioned his LSD experience until at least ten days after after his arrest when appellant’s prior counsel found marijuana in appellant’s bedroom and asked him if he had taken drugs at the time of the shooting. Also, in the night of the shooting, appellant, while allegedly under the influence of LSD, found the keys to his stepfather’s car, took the murder weapon and an extra set of clothes to a friend’s house, and acted like “the same Tony [his friend] had always known.” Trial transcript at 46.

The trial court, considering the foregoing, acted within its discretion as fact finder and discounted appellant’s testimony of drug use and concluded on the basis of the remaining evidence that when appellant “fired the rifle at Richard Neidig’s head, he did so with a specific intent to kill.” Opinion at 8. We agree that there is sufficient evidence in the record to contradict appellant’s assertion that he was so drugged at the time of the shooting that he could not have formed the requisite specific intent. We also agree that there was sufficient evidence to establish that appellant shot his stepfather willfully, deliberately, and with premeditation. Commonwealth v. Moore, 473 Pa. 169, 373 A.2d 1101 (1977). As the Commonwealth’s brief aptly sets forth:

The Commonwealth presented testimony from Nannette Beahm, who was the [appellant’s] girlfriend until the day of the shooting. The [appellant] had complained to her about his stepfather, that he didn’t treat the [appellant] like a son and didn’t love him. During the month before the shooting, the [appellant] told her about four times that he was going to “get a silencer gun and shoot him (Neidig) while he was sleeping and put him in his car and then go to a mountain and throw him in the side of a ditch in this mountain.” (N.T. Trial, pp. 14-15.) The [appellant] asked her not to tell anyone of his plans. (Id., p. 16.) The Commonwealth also presented testimony from Gary Mull, who said that, two or three times during the month before the shooting, the [appellant] told Mull that he was going to “plug” his [step]father____ In his statement [which was read to the court], the [appellant] said that he took his [step]dad’s 30-06 rifle about two days before the shooting and hid it in his closet with the intention of shooting his [step]dad at a later time. He also said he had taken a live 30-06 bullet from the kitchen china closet. He waited until everyone was asleep, went to his [step]dad’s room, and sat there with the gun for about ten minutes. He brought the gun up to shoot, but it did not go off because it was not cocked. He cocked the gun, put the barrel a foot to a foot-and-a-half from his [step]dad’s head, and fired. He turned on the light and saw that the bullet had mangled the whole top of his dad’s head____

Appellee’s brief at 3-4. We are satisfied that the Commonwealth presented sufficient evidence to convict appellant of first-degree murder.

Next, appellant complains that the trial court erred in not suppressing written and oral statements made by appellant prior to his preliminary arraignment because he was not arraigned within six hours of his arrest. Appellant asserts that he was arrested either at 11:30 a.m., when police searched his trailer, or 2:50 p.m., when he was taken to police headquarters. Thus, appellant concludes, since the preliminary arraignment took place at 10:45 p.m., the introduction of his statements elicited in the interim violated Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977).

Our Supreme Court has utilized the following test for determining whether an arrest has occurred:

We have defined an arrest as any act that indicates an intention to take the person into custody and subjects him to the actual control and will of the person making the arrest.

Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), citing Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963).

Further, we have declared that:

[t]he determination of when an arrest occurs depends on an evaluation of all the surrounding circumstances, [citation omitted] ... [T]he question of when an arrest occurs is determined by an objective standard, namely, the reasonable impression conveyed to the person subjected to seizure or detention rather than the subjective view of such person or of the arresting officer. [Citation omitted] ...

Commonwealth v. Romeri, 314 Pa.Super. 279, 460 A.2d 1139 (1983).

Instantly, appellant claims that he was in custody at 11:30 because a police officer searching the trailer told appellant to “stick around.” At trial, however, the officer testified that he did not remember telling appellant to remain in the trailer. In fact, appellant walked to a neighbor’s house for a sandwich and was gone one-half hour. Further, appellant testified:

[W]hen one of the officers asked us to get our jackets on or whatever we wanted to go out in the yard and stay there to stay out of the way of inside the house so they could carry on their investigation, that we would be just in the way if we were in the house.

Trial transcript at 136.

At 2:30, when the officers had finished processing the crime scene, they asked appellant and his mother to accompany them to the barracks for questioning. On the way to the barracks, the officers stopped at a convenience store which appellant entered alone. Even at the barracks, appellant was not under supervision, was able to move about, and was never told that he could not leave. Trial transcript at 23. It was only at the conclusion of the interview that appellant was readvised of his rights and was not free to leave.

The instant circumstances, when scrutinized according to the standard delineated supra, support the trial court’s finding that appellant was not under arrest until 4:55 p.m. Appellant was arraigned within six hours of arrest and, therefore, the statements made during the interim were properly admitted at trial.

Appellant also urges that the trial court erred in sustaining the Commonwealth’s objection when appellant tried to cross-examine Joann Neidig as to possible motives on her part for the killing. It is well established that the trial court has broad discretion in ruling on the parameters of cross-examination, and those rulings will not be reversed absent a clear abuse of discretion or error of law. Commonwealth v. Shirey, 333 Pa.Super. 85, 481 A.2d 1314 (1984), citing Commonwealth v. Greene, 469 Pa. 399, 366 A.2d 234 (1976). Ordinarily, cross-examination of an adverse witness is limited to subjects pursued on direct examination, with few exceptions. Commonwealth v. Lore, 338 Pa.Super. 42, 487 A.2d 841 (1984), citing Commonwealth v. Katsafanas, 318 Pa.Super. 143, 464 A.2d 1270 (1983); Com monwealth v. Ervin, 262 Pa.Super. 322, 396 A.2d 776 (1978).

Cross-examination may be used to test a witness’s story, to impeach credibility, and to probe a witness’s motive for testifying. Commonwealth v. Butler, 367 Pa.Super. 453, 533 A.2d 105 (1987) citing Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Appellant, however, wanted to question Mrs. Neidig about motives for doing the killing rather than motives for testifying. The subject of inquiry was clearly beyond the scope of direct and outside permissible impeachment inquiry. The trial court, therefore, did not abuse its discretion in refusing to permit the testimony. We note that appellant did not exercise his prerogative to call Mrs. Neidig as a defense witness and cross-examine her in this regard.

Next, appellant contends that the testimony of Sharon Hollowell as to the contents of letters written by appellant violated the best-evidence rule. We have defined the best-evidence rule as requiring the production of the original writing to prove the contents of that writing, unless a sufficient reason for not producing it is shown. Commonwealth v. Byers, 320 Pa.Super. 223, 467 A.2d 9 (1983), citing McCormick on Evidence 559 et seq. (2d ed. 1972). If, as a practical matter, the document cannot be produced because it is lost or destroyed, production of the original is excused and other evidence of the contents becomes admissible. McCormick, supra, at § 237. It is within the discretion of the trial court, based on proof of destruction, to determine whether production of the original document is feasible. Id.; cf. Commonwealth v. Reicherter, 317 Pa.Super. 256, 463 A.2d 1183 (1983).

In the present case, Ms. Hollowell testified that appellant confessed to the murder in letters written to her, but she had thrown the letters away and as a result could not produce them in court. We acknowledge that because she was testifying about the contents of several writings, the best-evidence rule applies. We find, however, that the testimony presented established sufficient excuse for the failure to produce the original. Therefore, the trial court did not abuse its discretion on permitting secondary evidence as to the contents of the letters.

Finally, appellant urges that the trial court erred in not transferring the case to juvenile court. The Juvenile Act, applicable to this claim, provides as follows:

(a) General rule— ... If it appears to the court in a criminal procedure charging murder, that the defendant is a child, the case may [] be transferred [to juvenile court] and the provisions of [the Juvenile Act] applied. (Emphasis supplied.)

42 Pa.C.S.A. § 6322(a).

Eegarding transfer to juvenile court, we have declared: From the language of the act, it is clear that transfer from the criminal court in murder cases is not a matter of right and the determination of whether the interests of the state and society require prosecution of murder on an indictment is left to the sound discretion of the common pleas court. Commonwealth v. Pyle, [462 Pa. 613, 342 A.2d 101 (1975) ].

If appellant is to prevail he must show a gross abuse of the broad discretion of the hearing judge who refused the transfer application. Such abuse may not merely be an error of judgment, but must be a misapplication of the law or an exercise of manifestly unreasonable judgment based upon partiality, prejudice or ill will.

Commonwealth v. Brown, 332 Pa.Super. 35, 40, 480 A.2d 1171, 1174 (1984) [citations omitted].

Commonwealth v. Zoller, 345 Pa.Super. 350, 355, 498 A.2d 436, 439 (1985).

Appellant, as a juvenile, has the burden of proving that he belongs in a juvenile setting by showing his need and amenability to the program of supervision, care and rehabilitation which he would receive as a juvenile. Pyle, supra, 462 Pa. at 622-23, 342 A.2d at 106. In the present case, as in Pyle, appellant based his transfer request on the need for psychiatric treatment. Determination of whether an juvenile is amenable to the juvenile system is to be made after careful scrutiny of the individual’s personal make-up, previous history, and the nature and circumstances of the alleged homicide. Id., 462 Pa. at 622 n. 13, 342 A.2d at 106 n. 13; see also Commonwealth v. Brown, 332 Pa.Super. 35, 480 A.2d 1171 (1984).

In this regard, appellant presented the testimony of a psychiatrist who indicated that appellant had emotional damage from which appellant could recover with proper treatment. Pretrial transcript at 83-85. In considering psychiatric testimony, however, if rehabilitation could not be assured during the child’s minority while subject to the juvenile court jurisdiction, the child has failed to establish that he was amenable to juvenile rehabilitation. Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980).

Instantly, the trial court determined:

... Defendant (age 17, born September 6,1986) presented evidence he was anxious, depressed, suffered from an adjustment disorder and was amenable to treatment. However, the trial court found the crime to be premeditated and in all of its contacts with Defendant, noted a lack of contrition and penitence. Defendant’s expert, Dr. Cary, stated that if the killing was premeditated, Defendant would more likely be a danger to society in the future. Dr. Cary could not assure the Court the proposed treatments would rehabilitate Defendant by the end of the treatment schedule or his 21st birthday anniversary, the benchmark for this standard. Even more important, Defendant did not prove to the satisfaction of the trial Court the existence of a juvenile facility which would accept him.

Opinion at 10.

We find no abuse of discretion by the trial court in denying appellant’s transfer to juvenile court.

The judgment of the trial court is affirmed.

      . Davenport declared that when an accused is not arraigned within six hours after arrest, any declaration from the accused to police officers after arrest but before arraignment is inadmissible evidence.

        . We note that, in any event, the admission of the inculpatory statements was proper. In Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987), our Supreme Court modified Davenport, declaring:
      The \Davenport\ rule has been applied on a mechanical basis to violations which bear no relationship to the statement obtained and has shielded the guilty for no reason relevant to the individual circumstances of their case. [Citations omitted.] ... If the statement is obtained within the six hour period, absent coercion or other illegality, it is not obtained in violation of the rights of an accused and should be admissible. In keeping with the underlying objectives of the rule, only statements obtained after the six hour period has run should be suppressed on the basis of Davenport.

        Id., 514 Pa. at 405-06, 525 A.2d at 1182-83. The circumstances surrounding appellant’s statements were by no means coercive. Additionally, the utterances occurred well within the six hour period no matter when the arrest is deemed to have taken place. Therefore, the statements would have been admissible in any of the possible time frames.

      . Our Supreme Court has declared that a party may call and cross-examine a witness "when it is believed that the interest of truth and justice so require.” Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986) (quoting Commonwealth v. Waller, 498 Pa. 33, 39, 444 A.2d 653, 656-57 (1982)).


author:
CIRILLO, President Judge:
      TAMILIA, Judge,

text:
    537 A.2d 840
    Jalal FATEMI, Appellant, v. Linda L. Brodbeck FATEMI now by Change of Name Linda L. Brodbeck.
    Superior Court of Pennsylvania.
    Argued Sept. 21, 1987.
    Filed Feb. 12, 1988.

      Thomas S. Cometa, Wilkes-Barre, for appellant.
    Anthony J. Martino, Bangor, for appellee.
    Before CIRILLO, President Judge, and TAMILIA and BECK, JJ.
   CIRILLO, President Judge:

This is an appeal from various orders entered in the Court of Common Pleas, Luzerne County following hearings on an emergency contempt petition. We affirm the court’s order, as modified.

Appellant, Dr. Jalal Fatemi, is the natural father of two young boys, who are the subject of the instant custody dispute. Appellee, Linda Brodbeck, formerly Mrs. Fatemi, is the natural mother of the children.

Pursuant to an order dated June 24, 1986, Linda Brodbeck was granted partial custody of the children, consisting of every other weekend, five weeks during the summer, and various holidays. The order contained various other provisions, including the following: “As security to insure compliance with this Order, the deeds presently being held by this Court, and the lis pendens filed against such real estate [appellant’s], shall continue in full force and effect.”

On one weekend when the children were to be with their mother, appellee was unable to determine their whereabouts. Appellee subsequently filed a petition to hold appellant in contempt. A rule to show cause was issued on September 5, 1986. The rule ordered appellant to show cause why he should not be held in contempt, and why the children should not be removed from his custody and placed in the custody of their natural mother. Appellant was ordered to appear for the hearing set for September 8,1986. Service of the petition and rule was made upon counsel of record. Dr. Fatemi did not appear for the September 8 hearing, but was represented by counsel. At the hearing, Dr. Fatemi’s counsel pointed out that it was his understanding that the lis pendens was against Dr. Fatemi’s bare tract of land, and not against his house. Counsel also claimed that appellant had not been properly served pursuant to the applicable rules of court. The court subsequently granted appellee’s request that the court issue a lis pendens “against the home as security for Dr. Fatemi under the court rules.” The court then instructed counsel to take the appropriate steps to record this fact. The court scheduled another hearing, and ordered Dr. Fatemi to appear. Counsel informed the court that appellant’s last known address was in Birmingham, Alabama.

The second hearing was held on September 19, 1986. Dr. Fatemi again did not appear. Counsel informed the court that Dr. Fatemi had fled the jurisdiction for his native country, Iran, and had taken the children with him. Counsel also informed the court that he had verbally advised Dr. Fatemi on two occasions of the proceedings to be held on September 19. Thereafter, appellant’s counsel again objected to the notice procedure. Despite these objections, the court proceeded to hear the merits of the case. At the conclusion of the hearing the court issued several orders, from which appellant takes this appeal.

Appellant raises the following five issues on appeal:

(1) Did the hearing judge abuse his discretion or commit an error of law when he issued a number of court orders against appellant who had not been served as required by Pa.R.C.P. 1915.12(a), (b), (c), and (d);

(2) Did the hearing judge abuse his discretion or commit an error of law when he held appellant in criminal contempt when appellant, at no time, appeared personally in or about the court;

(3) Did the hearing judge abuse his discretion or commit an error of law when he fined appellant the sum of $25,000, when appellant, at no time, was served in conformity with the applicable rules of procedure;

(4) Did the hearing judge abuse his discretion or commit an error of law when he ordered that a lis pendens be placed against all of appellant’s real estate which included his home which he had listed with a Realtor; and,

(5) Did the hearing judge abuse his discretion or commit an error of law when he changed court ordered legal custody from appellant to appellee, without conducting a hearing with appellant present to determine whether or not the change in custody of the children would be in their best interests and permanent welfare.

We observe at the outset that this court could properly quash this appeal. We have previously held that where a parent has violated a custody order and the contempt is found to be flagrant, appeal may be denied. In Commonwealth ex rel. Beemer v. Beemer, 200 Pa.Super. 103, 188 A.2d 475 (1962), this court quashed an appeal where the mother violated the custody order, was adjudged to be in contempt of court, and then appealed. We stated there:

The question raised by this motion to quash is of great importance. There are a rash of modern instances where court orders are disobeyed with impunity and respect for the law and the courts thereby weakened. It seems, therefore, that it is the duty of the appellate courts to see to it that every assistance is extended to the courts of the Commonwealth so that orders are meticulously carried out as otherwise the dignity of the judiciary, the majesty of the law and its enforcement are clearly undermined.

Id., 200 Pa.Superior Ct. at 106, 188 A.2d at 476; see also National Union of Marine Cooks v. Arnold, 348 U.S. 37, 75 S.Ct. 92, 99 L.Ed. 46 (1954) (denial to one who has disobeyed a trial court’s order of his statutory right to appeal violates neither the Fourteenth Amendment’s guarantee of equal protection of the laws nor its guarantee of due process of law).

We acknowledge the familiar tone of the facts this case. For this reason, and for the edification of the bench and bar, we address the merits of this case.

I

With respect to Dr. Fatemi’s first argument, we point out that, contrary to his contention, the notice of the order to appear does comply with the form set forth in Pa.R.C.P. 1915.12(a). In addition, appellee’s petition does allege facts, pursuant to Pa.R.C.P. 1915.12(b), which constitute willful failure to comply with the custody order. Appellant argues that since the custody order mentions nothing about obtaining the court’s permission to change his (and the children’s) residence, he is not in contempt, and therefore appellee has not complied with Rule 1915.12(b). This argument, however, ignores the language and purpose of the custody order.

The order provides that the mother has partial custody according to a specific schedule. In addition, the order states: “Neither party ... shall engage in any conduct which would serve to undermine the relationship of the children with either parent.” Appellant’s decision to retreat to Iran has not only violated the custody schedule, but has blatantly interfered with what the order attempted to preserve — the children’s relationships with each parent. Appellant’s actions have flagrantly undermined the mother/children relationship.

Dr. Fatemi also claims appellee failed to comply with Pa.R.C.P. 1915.12(c). Rule 1915.12(c) provides:

The petition shall be served upon the respondent by personal service or regular mail. ... If the respondent fails to appear [at the hearing], the court shall continue the hearing and may order personal service of the petition and notice of a new hearing date by the sheriff or may issue a bench warrant for production of the respondent in court and not for imprisonment.

Appellant’s counsel objected several times to the court’s decision to proceed with the hearing despite the language in Rule 1915.12(c) which provides that the hearing be continued if respondent fails to appear. At the conclusion of the hearing, the court ordered:

There will be an additional hearing on the motion and the rule, and Dr. Fatemi is ordered to appear in Courtroom No. J, Luzerne County Courthouse, at Friday, September 19, 1986, at 10:00 a.m., ... to receive further evidence on the emergency petition of Linda L. Brodbeck Fatemi, ... and the Rule to Show Cause issued on said petition [which states] as follows: Why he, Dr. Fatemi, should not be held in contempt of the Court Order of June 24th, 1986; further Rule to Show Cause why an additional weekend of partial custody should not be granted to the Petitioner; and, further a Rule to Show Cause why the children should not be removed from the custody of the father and placed in the custody of their natural mother. [Emphasis added]

When questioned by appellant’s counsel as to how service was to be made, the court stated:

Counsel for Dr. Fatemi shall notify him verbally and in writing of the hearing. Counsel for the mother shall notify the Defendant by regular mail and also by certified and/or registered mail, return receipt requested, and also shall deliver to the Sheriff of Luzerne County, who shall deliver to the appropriate sheriff or other proper authority for serving legal documents in Birmingham, Alabama, a notice of the hearing including purposes set forth herein[.]

The court further instructed appellee’s counsel to prepare the notice pursuant to Rule 1915.12 so as to avoid further technical problems.

It appears that the technical requirements of Rule 1915.-12 were in fact not met inasmuch as the rule and petition were originally served upon appellant’s attorneys by regular mail, and not served upon appellant himself. Obviously, this was done because appellant's whereabouts were unknown. In addition, we note that Dr. Fatemi received actual notice of the September 8 hearing on September 5 by way of a telephone conversation with his attorney. During that conversation, Dr. Fatemi told counsel that he would let him know whether he would be at the hearing.

Based on the unusual circumstances of the case, the court allowed the proceeding to continue in an effort to ascertain Dr. Fatemi’s whereabouts and to formulate a proper method of service for the continued hearing, scheduled for September 19. In particular, the court noted its concern with the welfare of the children.

We remind appellant that our rules of procedure are to be liberally construed so as to secure a “just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.” Pa.R.C.P. 126. Under the circumstances presented in this case, we are unable to find that the trial court committed an error of law or abused its discretion in proceeding with the hearing. Moreover, in light of appellant’s actual notice of the hearing, and the court’s scheduling of a second hearing, we are unable to conclude that Dr. Fatemi’s “substantial rights” were affected in any way.

Dr. Fatemi also claims the trial court’s order failed to comply with Pa.R.C.P. 1915.12(d). Rule 1915.12(d) provides: “After hearing, an order committing a respondent to jail for contempt of a custody, partial custody or visitation order shall specify the condition which must be fulfilled to obtain release of the respondent.” This claim is meritless. The court’s order clearly stated: “The condition of release from imprisonment, is that he shall deliver the children to the mother.”

II

As noted above, Dr. Fatemi failed to appear at the September 19 hearing, contrary to the court’s order of September 8, 1986. The court found Dr. Fatemi had “willfully, deliberately, flagrantly, and by conduct which the Court under the circumstances considers outrageous, failed to appear at [the] hearing, despite numerous notices to him of the time, place, and date and purpose of the hearing.” On appellee’s motion, a bench warrant for the arrest of Dr, Fatemi was issued pursuant to Pa.R.C.P. 1910.13. The court further ordered that appellant be committed to the Luzerne County Prison upon his apprehension, and “when he is committed, the Court to be notified, and another hearing will be set. The condition of release from imprisonment, is that he shall deliver the children to the mother.”

The transcript of the proceeding reveals that the court was, to some degree, uncertain as to the characterization of the contempt order, noting finally that it was criminal contempt. Appellant argues on appeal that since he did not personally appear before the court at any time, it was error for the court to find him in criminal contempt.

The Pennsylvania Supreme Court has comprehensively explained the difference between civil and criminal contempt in the case of In re Martorano, 464 Pa. 66, 346 A.2d 22 (1975). The distinction between civil and criminal contempt is not determined by any particular act; rather, it is determined by the dominant purpose of the judicial response to contumacious behavior. Id., 464 Pa. at 77-78, 346 A.2d at 27-28. If the dominant purpose of the court is to prospectively coerce the contemnor to comply with an order of the court, the contempt is civil. If, however, “the dominant purpose of the court is to punish the contemnor for disobedience of the court’s order ... the adjudication of contempt is criminal.” Id., 464 Pa. at 78, 346 A.2d at 28.

When the court’s dominant purpose is to coerce, the appropriate civil contempt penalty is “a conditional or indeterminate sentence of which the contemnor may relieve himself by obeying the court’s order, while a criminal adjudication of contempt punishes with a certain term of imprisonment or a fine which the contemnor is powerless to escape by compliance.” Id., 464 Pa. at 79, 346 A.2d at 28 (citing Shillitani v. United States, 384 U.S. 364, 368-70, 86 S.Ct. 1531, 1534-35, 16 L.Ed.2d 622 (1966)). The distinction exists solely to determine what procedural rights the contemnor has and what penalties are available for the court to impose. Moreover, “a contemnor who will be sentenced to a determinate term of imprisonment or a fixed fine, which he is powerless to escape by purging himself of his contempt, is entitled to the essential procedural safeguards that attend criminal proceedings generally.” Martorano, 464 Pa. at 80, 346 A.2d at 29; see also Barrett v. Barrett, 470 Pa. 253, 262, 368 A.2d 616, 620 (1977) (crucial question to determine civil contempt is whether one has present ability to comply with conditions set by court to purge himself of contempt). In addition, our supreme court has set forth five factors whose presence often indicates civil contempt: (1) where the complainant is a private person as opposed to the government; (2) where the proceeding is a continuation of an original injunction as opposed to a separate and independent action; (3) where holding the defendant in contempt provides relief to a private party; (4) where the complainant primarily benefits from the relief requested; and (5) “where the acts of contempt complained of are primarily civil in character and do not of themselves constitute crimes or conduct by the defendant so contumelious that the court is impelled to act on its own motion.” Knaus v. Knaus, 387 Pa. 370, 378, 127 A.2d 669, 673 (1956). The existence of these factors, however, is not dispositive. “Even where the same facts might give rise to criminal as well as civil contempt, each has its own distinct procedural rights; the two may not be casually commingled.” Barrett, 470 Pa. at 253, 368 A.2d at 619.

Plainly, it may be argued that the facts of the case before us might have given rise to either criminal or civil contempt. The distinguishing factor here is that Dr. Fatemi holds “the key to the jailhouse door.” Bruzzi v. Bruzzi, 332 Pa. Super. 346, 481 A.2d 648 (1984); see also Brocker v. Brocker, 429 Pa. 513, 241 A.2d 336, (1968), cert. denied, 393 U.S. 1081, 89 S.Ct. 857, 21 L.Ed.2d 773 (1969) (where the act of contempt complained of is a refusal to do some act ordered primarily for the benefit of a private party, proceedings to enforce compliance with a decree of court are civil in nature). Our review of the proceedings reveals that the purpose of the order to some extent was to vindicate the authority and dignity of the court. However, the dominant purpose was to coerce appellant into abiding by the order and releasing the children to their mother. We thus conclude the court’s label of criminal contempt was inappropriate where the court was conditioning punitive measures (commitment to county prison) on appellant’s failure to comply with the court’s orders (release of children to appellee). See Neshaminy Water Resources Auth. v. Del-Aware Unlimited, Inc., 332 Pa.Super. 461, 481 A.2d 879 (1984) (confinement for civil contempt must impose a condition that the contemnor is capable of performing which has the effect of purging the contemnor of contempt). We therefore modify the trial court’s order to correct this error. See 42 Pa.C.S. § 706 (appellate court may modify any order brought before it for review).

Ill

Appellant also claims on appeal that the court erred or abused its discretion in fining him $25,000 when he was not served in conformity with the applicable rules of court. The order states:

The Court further imposes a fine of $25,000.00 on Jalal Fatemi and that fund to be used for the purpose of locating the children and Jalal Fatemi and returning all of them to the jurisdiction of this Court. Any unused portion of that sum shall go equally to each of the children and placed in an appropriate account, for their general welfare, including, but not limited to food, clothing, shelter, education, medical attention or other necessities of life.

Each court is the exclusive judge of contempts against its process, and on appeal its action will be reversed only when a plain abuse of discretion occurs. Id., 332 Pa.Superior Ct. at 469, 481 A.2d at 883. The trial judge entered this order at the conclusion of the second hearing on September 19. Our discussion in Part I above reveals that Dr. Fatemi was in fact properly served with notice of this second hearing according to the applicable rules of court. In addition, we point out that a court may impose an unconditional fine upon the contemnor in order to encourage future compliance for the benefit of the injured party. Schnabel Assoc. v. Building & Constr. Trades Council, 338 Pa.Super. 376, 487 A.2d 1327 (1985); see also Brocker v. Brocker, 429 Pa. 513, 241 A.2d 336 (1968), cert. denied, 393 U.S. 1081, 89 S.Ct. 857, 21 L.Ed.2d 773 (1968) (a court may, in a proceeding for civil contempt, impose the remedial punishment of a fine payable to an aggrieved litigant as compensation for the special damage he or she may have sustained by reason of the contumacious conduct of the offender). Accordingly, we find no abuse of discretion.

IV

Appellant next claims that the court erred or abused its discretion in ordering a lis pendens be placed against his home. A lis pendens does not establish an actual lien on the property. What it does is give notice to third persons that any interest they may acquire in the property pending the litigation will be subject to the result of the action. See Goodrich-Amram 2d § 1504(a). Dr. Fatemi claims the court had no authority to proceed without him and without giving him an opportunity to be heard. This argument is meritless. Appellant was given an opportunity to be heard but made himself unavailable to the court and disregarded the court’s order to appear. We find the court’s order of special relief was appropriate under the circumstances. See Pa.R.C.P. 1915.13.

V

Finally, Dr. Fatemi claims the hearing court erred or abused its discretion in transferring legal custody of the children to appellee without conducting a hearing with appellant present to determine whether change in custody was in the best interests of the children. Although seemingly lost in this tangle of contempt and procedural discussion, the paramount consideration in this case, as in all child custody disputes, is the best interests and welfare of the children. Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980); Burke v. Pope, 366 Pa.Super. 488, 531 A.2d 782 (1987).

The scope of review in a child custody case is broad and, though it requires this court to accept the trial court’s findings of fact unless they are unsupported by the evidence, it allows the reviewing court to draw its own inferences and deductions from the facts as the trial court has found them. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 295, 368 A.2d 635, 637 (1977); see also In re Donna W., 325 Pa.Super. 39, 472 A.2d 635 (1984) (en banc) (broad scope of review in custody case, as distinguished from abuse of discretion standard, is essential if the appellate court is to fulfill its responsibility to children).

In Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984), our supreme court directed that appellate review in custody cases be confined to the following principles:

[0]ur law has long recognized that the scope of review of an appellate court reviewing a custody matter is of the broadest type ... Thus, an appellate court is not bound by deductions or inferences made by a trial court from the facts found; ... nor must a reviewing court accept a finding which has no competent evidence to support it ... However ... this broader power of review was never intended to mean that an appelate court is free to nullify the factfinding function of the hearing judge ... [but, instead, is to remain] within the proper bounds of its review and [base a decision] upon its own independent deductions and inferences from the facts as found by the hearing judge.

Robinson, 505 Pa. at 236, 478 A.2d at 805-06 (citations omitted).

The Robinson court concluded that appellate review does require this court to determine whether the trial judge’s conclusions are supported by the factual findings, but warned that this court may not interfere with those conclusions “unless they are unreasonable in light of the trial court’s factual findings. Bohachevsky v. Sembrot, 368 Pa. 228, 81 A.2d 554 (1951); and, thus, represent a gross abuse of discretion, Carson.” Id., 505 Pa. at 237, 478 A.2d at 806.

We are somewhat hindered at the outset without the benefit of a trial court opinion. However, under the circumstances of this case, remand for the filing of an opinion would be both inappropriate and meaningless. We find the record otherwise sufficient to enable us to render effective appellate review. See Commonwealth ex rel. Husack v. Husack, 273 Pa.Super. 192, 417 A.2d 233 (1979); see also Pa.R.A.P. 1925(a) (“if the reasons for the order do not already appear of record,” the trial judge is required to “file of record at least a brief statement, in the form of an opinion, of the reasons for the order ... or shall specify in writing the place in the record where such reasons may be found.”).

As we have noted above, this court is bound to accept the trial court’s findings of fact, providing, of course, that these findings are supported by the evidence. Robinson, 505 Pa. at 236-37, 478 A.2d at 806; see also In re Donna W., 325 Pa. Super, at 39-41, 472 A.2d at 635. The court found that taking the children to Iran, “with such turmoil, unrest, civil disorder, military acts of warfare, and such, ... evidenced a total disregard for the welfare of the children” and placed their lives in danger. The court took judicial notice of the fact that Iran and Iraq have been in open conflict for many years. Generally, matters of history, if sufficiently notorious to be the subject of general knowledge, will be judicially noticed. See In re Estate of Belemecich, 411 Pa. 506, 192 A.2d 740 (1963), reversed on other grounds, Consul General of Yugoslavia at Pittsburgh v. Pennsylvania, 375 U.S. 395, 84 S.Ct. 452, 11 L.Ed.2d 411 (1964).

The court also found Dr. Fatemi’s actions indicated a “personal and selfish motive to satisfy his own desires contrary to the welfare of the children,” and that his conduct cleárly displayed a desire to have the children deprived of the care, comfort, love and affection of their mother. Moreover, the court found that Dr. Fatemi’s claim that he moved with the children to Alabama for the purpose of locating himself at an appropriate hospital “was obviously a fictitious excuse” resulting not from his effort to improve his surgical skills, but from his effort to destroy the mother/children relationship.

Based on our review, we conclude the trial court’s findings are fully supported by the evidence in the record. The fact that these children are the focus of adult conflict is extremely troublesome, and this situation is regrettable and not easily resolved. However, our concern here today is not with conflict between parents or countries, but with the safety and welfare of these children. Their need for continuity of relationships, surroundings and environmental influence is essential to their normal growth and development. See J. Goldstein, A. Freud, & A. Solnit, Beyond the Best Interests of the Child (1973). It is important in a child’s life that he or she have a “stable relationship with an established parental figure and a known physical environment.” Gerber v. Gerber, 337 Pa.Super. 580, 586, 487 A.2d 413, 416 (1985).

Based on our review, we conclude that the children’s safety and stability justifies an order transferring custody to the mother, with the father’s visitation schedule to be determined when he appears before the court. An arrangement that maintains as full a relationship as possible between the children and both parents, or at least allows for such, is in the children’s best interests. Dr. Fatemi cannot effectively eliminate the mother from the children’s lives.

We recognize the possibility that our decision today may further frustrate Dr. Fatemi and dissuade him from returning to the United States. We remind him, however, and appellee, that the children are the victims here, and will continue to be for as long as this conflict endures.

Affirmed, as modified.

TAMILIA, J., concurs with an opinion.

TAMILIA, Judge,

concurring:

I concur in the result. While I agree with the majority’s disposition, I take issue with its reliance on In re Donna W., 325 Pa.Super. 37, 472 A.2d 635 (1984) (broad scope of review in custody case as distinguished from abuse of discretion standard is essential if the appellate court is to fill its responsibility to children.) I believe the scope of review applied in Donna W. and its genre have been repudiated by the Pennsylvania Supreme Court in Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984) and Lombardo v. Lombardo, 515 Pa. 139, 527 A.2d 525 (1987). See Fatemi v. Fatemi, 339 Pa.Super. 590, 489 A.2d 798 (1985) (Concurring and Dissenting Opinion by Tamilia, J.).

I would also hold that snatching of his child, in derogation of a custody Order, is prohibited under the Uniform Child Custody Jurisdiction Act, 42 Pa.C.S.A. § 5341 et seq., and the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A, and appellant is technically a fugitive. This is particularly so in view of the fact that by violating the conditions of the custody Order, appellant is subject to prosecution for violating 18 Pa.C.S. § 2904, Interference with Custody of Children. As such, he should have no right to appeal, as would be our finding in a criminal case.

To permit him to appeal and for the Court to consider the case on the merits is to give him a windfall. Under these circumstances, he need not abide by the law and face the court in an open and fair adversary proceeding while maintaining the benefit of a full appellate review, which might resolve some procedural defect in his favor relieving him of the sanctions imposed and ignoring his flouting of the law.

This is particularly of great concern to this Court as the issues relating to custody and partial custody were fully litigated in the trial court and in this Court on appeal. See Fatemi, supra. In the earlier proceeding, the mother had appealed a custody Order in favor of the father and for less restrictive partial custody. While the majority of the panel directed a lessening of the partial custody restrictions, the Order in favor of appellant prevailed. This was in spite of the fact that while the mother had custody, the father had taken the children to Iran from April 1980 to December 1980, without informing the mother. The children were returned only after the mother met with appellant in Switzerland and agreed to give him full custody with daily visitation rights to the mother in the father’s home. The appellant appears determined to be a law unto himself in regard to the custody of his children and should be dealt with accordingly.

I have no quarrel with the result achieved by the majority but believe the message would be stronger to appellant and his ilk that by child snatching and becoming a fugitive, they forfeit the benefits of the appellate procedure and have waived any right to appeal. A party, who absconds to a foreign country with children who are totally beyond the reach of American justice and who are impervious to diplomatic pressures, should not also have the succor of appellate review. Denying appeal fixes the judgment of the lower court and provides the only remedy available to the wronged person, that is a climate for negotiation whereby to gain relief from heavy sanctions and to regain the benefits of our society, he must repudiate his vicious and destructive self-help approach and accede to reasonable and acceptable standards of conduct.


author: DEL SOLE, Judge: OLSZEWSKI, Judge,

text:
    537 A.2d 849
    Conchetta Lydia LAZARO, Appellant, v. AETNA CASUALTY AND SURETY COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued April 29, 1987.
    Filed Jan. 22, 1988.

      JoAnna H. Flum, Philadelphia, for appellant.
    Keith Grumbine, Pittsburgh, for appellee.
    Before OLSZEWSKI, DEL SOLE and BECK, JJ.
   DEL SOLE, Judge:

This is an appeal from a judgement which denied Appellant’s claim for work-loss benefits and attorney’s fees under the Pennsylvania No-fault Motor Vehicle Insurance Act (No-fault Act). The significant issue is whether Appellant’s entitlement to work-loss benefits will be determined pursuant to the Pennsylvania No-fault Act, or the No-fault Act of the State of New York. For the reasons which follow, we reverse.

Appellant was injured in a motor vehicle accident which occurred in Pennsylvania. At the time of her accident, Appellant was a resident of the state of New York. The unfortunate circumstances are stated in the following short order.

Appellant had been standing beside her automobile which was parked on the berm completely off the main travelled portion of U.S. Route 209 when she was struck by the dislodged tire and rim of a passing tractor trailer. The force of the impact threw her approximately 25 feet into the air, rendered her unconscious and caused her to suffer serious and permanent injuries. She has been unable to work since the accident.

At the time of the occurrence, Appellant was a named insured under a no-fault policy of insurance issued by Appellee, Aetna Casualty & Surety Co., in the State of New York. Appellee provided medical and hospital benefits, but denied Appellant’s application for work-loss benefits since one month prior to sustaining her injuries, Appellant lost her job as a waitress when the restaurant where she worked ceased doing business. The case proceeded to arbitration in the Court of Common Pleas of Philadelphia County and the arbitrators found in favor of Appellant. A timely appeal of this award was made by Appellee and the case proceeded to trial on a case stated basis. The trial court entered a judgment in favor of Appellee and this appeal followed.

Initially, we note that this appeal presents no conflict of laws question. See Hahn v. Liberty Mutual Ins. Co., 336 Pa.Super. 329, 485 A.2d 830 (1984). Our legislature has expressly incorporated a conflict of laws provision into the Pennsylvania No-fault Act which reads:

(c) Applicable law.—
(1) The basic loss benefits available to any victim or to any survivor of a deceased victim shall be determined pursuant to the provisions of the state no-fault plan for motor vehicle insurance in effect in the state of domicile of the victim on the date when the motor vehicle accident resulting in injury occurs. If there is no such state no-fault plan in effect or if the victim is not domiciled in any state, then basic loss benefits available to any victim shall be determined pursuant to the provisions of the state no-fault plan for motor vehicle insurance, if any, in effect in the state in which the accident resulting in injury occurs.

40 P.S. § 1009.110(c)(1) (emphasis added by the majority).

Turning to the relevant New York No-fault statute, N.Y. Consol.Stat., Book 27, Insurance Law, § 672(5) provides:

[Ejvery owner’s policy of liability insurance issued in satisfaction of articles six or eight of the vehicle and traffic law shall also provide, where a motor vehicle covered by such policy is used or operated in any state or in any Canadian province, insurance coverage for such motor vehicle at least in the minimum amount required for such vehicle by the laws of such other state or Canadian province.

Furthermore, Section 60.1(e) of the New York Insurance Department Regulations provides:

[A] provision that when a motor vehicle is used or operated in any other state or Canadian province as policy currently in effect or hereafter issued shall provide at least the minimum amount and kind of coverage which is required in such cases under the laws of such other jurisdiction. Any policy not containing such provision shall nevertheless be deemed to provide such coverage or benefits to the extent that a New York insured carries additional coverage under an automobile or motor vehicle policy of a resident of the jurisdiction on wherein an injury occurs.

11 NYCRR 60.1(e) (emphasis added by the majority).

Finally, we note the Out-of-State Insurance Endorsement provision of Appellant’s policy which reads:

[I]t is agreed that, subject to all the provisions of the policy except where modified herein, the following provision is added:
If under the provisions of the motor vehicle financial responsibility law or the motor vehicle compulsory insurance law or any similar law of any state or province, a non-resident is required to maintain insurance with respect to the operation or use of a motor vehicle in such state or province and such insurance requirements are greater than the insurance provided by the policy, the limits of the company’s liability and the kinds of coverage afforded by the policy shall be set forth in such law, in lieu of the insurance otherwise provided by the policy, but only to the extent required by such law and only with respect to the operation or use of a motor vehicle in such state or province; provided that the insurance under this provision shall be reduced to the extent that there is other valid and collectible insurance under this or any other motor vehicle insurance policy. In no event shall any person be entitled to receive duplicate payments for the same elements of loss. (Emphasis added).

From the foregoing, our review is focused on whether Appellant is entitled to work-loss benefits under the Pennsylvania No-fault Act. Pennsylvania law will permit a recovery for such a claim since it need only be supported by the showing of a loss of earning capacity. See Freeze v. Donegal Mutual Insurance Co., 504 Pa. 218, 470 A.2d 958 (1983). On the other hand, if the substantive law of New York is applicable to this action, Appellant is not entitled to work loss benefits as she did not suffer any actual wage loss. See Nationwide Mutual Insurance Co. v. Ward, 113 Misc.2d 867, 450 N.Y.S.2d 147 (1982).

The applicable law of the Commonwealth leads us to consider the case law of New York for an informed interpretation of 27 N.Y. Insurance Law § 672(5). The resulting question becomes how broad or narrow will our interpretation be of the “kinds of coverage” provision in Appellant’s policy.

Appellee maintains the case of Allstate Insurance Co. v. Walsh, 115 Misc.2d 907, 454 N.Y.S.2d 774 (1982), aff’d 99 A.D.2d 987, 472 N.Y.S.2d 867 (First Department) is controlling in this matter. Specifically, Appellee claims the reasoning of Allstate is more consistent with the clear statutory language of New York’s no-fault laws. In Allstate, the New York Court ruled that Section 672(5) and the Insurance Regulations promulgated pursuant to that statute “do not create substantive additional coverage for accidents which occur in a sister state.” Id., 115 Misc.2d at 913, 454 N.Y.S.2d at 778.

However, we note the opposite position taken on this matter by the same New York court, but a different division, which held that New York residents, under these same facts, are to be provided with both the minimum amount and kind of coverage required by the state in which the vehicle is travelling at the time of the accident. Allcity Ins. Co. v. Williams, 120 A.D.2d 1, 506 N.Y.S.2d 974 (Second Department 1986).

Appellant maintains she is entitled to both the minimum amount and kinds of coverage provided by Pennsylvania law. Specifically, Appellant relies on the language of Section 60.1(e) of the New York Insurance Department Regulations and the “Out-of-State Endorsement” clause contained in her insurance policy to bolster her contention that she is entitled to recover work-loss benefits.

Preliminarily, we are well served to consider the following language of the Allcity court with respect to the authority of the Superintendent of Insurance:

The authority of the Superintendent of Insurance to promulgate such a regulation rests not only upon his general power to interpret the provisions of the Insurance Law (Insurance Law § 301(c)) but also upon his specific power to define the contents of a mandatory policy (Vehicle and Traffic Law § 311[4][a]). Such administrative regulations have the force and effect of law and are to be enforced by the courts unless arbitrary (Molina v. Games Mgt. Servs., 58 N.Y.2d 523, 529, 462 N.Y.S.2d 615, 449 N.E.2d 395 [(1983)]).

Id. 506 N.Y.S.2d at 976.

The clarity of this passage regarding the authority of the Superintendent of Insurance causes us to adopt the reasoning of the Allcity court. Moreover, we believe the principles at work in Allstate are inconsistent with the law set forth by this court in Hahn, supra. Parenthetically, we note that the Allstate and Allcity courts were presented with identical factual and legal questions and yet the end results are antithetical.

In Hahn, we began our analysis with a review of Country-Wide Insurance Co. v. Rodriguez,, 55 N.Y.2d 162, 448 N.Y.S.2d 135, 433 N.E.2d 118, cert. denied, 457 U.S. 1118, 102 S.Ct. 2930, 73 L.Ed.2d 1330. Louis Padilla, a New York resident insured under a policy issued in New York, was operating his vehicle in North Carolina when he was involved in an accident in which his passenger, Rodriguez, was injured. The liability limit of Padilla’s policy was $10,000.00 for injuries to any individual. Rodriguez brought suit against Padilla and eventually recovered a judgment far in excess of the liability limit imposed by New York. On appeal, Country-Wide Insurance sought a declaration that the limit of its obligation was to pay $10,000.00 towards the satisfaction of the judgment and not $15,-000.00, the minimum insurance limit generally provided for injury to one person under North Carolina’s compulsory statutory scheme. On review, the Court of Appeals held the insurer was obligated under the insured’s out-of-state endorsement provision of his policy and Section 672(5) of New York’s insurance laws, to pay $15,000.00 towards the satisfaction of the judgment under North Carolina’s compulsory scheme and not $10,000.00 under the New York no-fault Act since the benefits in North Carolina were higher.

We concluded our analysis in Hahn by adopting the rationale of Wierbinski v. State Farm Auto. Ins. Co., 477 F.Supp. 659 (W.D.Pa.1979) as precedent for the Commonwealth. In Wierbinski, a New York domiciliary owned an automobile insured under a policy of no-fault insurance issued in New York. The New York domiciliary was subsequently injured in a one-car accident in Pennsylvania. After examining the New York No-fault Act, the Wierbinski Court concluded that the only logical interpretation of Section 672(5) was that it raises the limits of liability and the kinds of coverage afforded by a New York owner’s policy to a level consistent with any higher requirements of a no-fault state in which an accident occurs. The result in this case was an award of unlimited medical benefits provided by the Pennsylvania No-fault Act.

In the instant case, we are not faced with a question of extending liability coverage. The facts of this appeal bring Appellant’s claim under the “kinds of coverage” rubric which, Appellee argues, should be analyzed with an eye toward the same narrow interpretations reached by the Allstate court. We reject Appellee’s argument and choose, instead, to adopt the position of the Allcity court.

In Allcity, supra, the insured sought to recover under an uninsured motorist endorsement of a New York automobile policy for a hit-and-run accident which occurred in New Jersey. Simply stated, the New Jersey uninsured motorist endorsement clause did not include a physical contact requirement for hit-and-run accidents while the alternative was true for the same provision in New York. Quoting from the Allcity Opinion:

[T]he real question is whether New Jersey insurance requirements must be read into the Williams (insured) policy. New York’s Insurance Law § 5103(e) directs that every required policy of automobile liability insurance provide benefits at least in the minimum amount prescribed by the law of any state in which the vehicle is operated. Supplementing the statutory language is a regulation of the Superintendent of Insurance which mandates that every such policy shall provide “at least the minimum amount and kind of coverage which is required” for such vehicle in any other state and that any policy which does not include a provision to this effect shall be deemed to so provide (11 NYCRR 60.1[e]; emphasis supplied). The issue is whether these directive import into Williams’ New York insurance policy the uninsured motorist coverage required of vehicles registered in New Jersey, thereby permitting him to recover under his policy regardless of physical contact.

Id. 506 N.Y.S.2d at 975-76.

As a result, the Allcity court held that the New York insurance policy was required to comply with New Jersey law thus eliminating the need for a showing of physical contact before a recovery for a hit-and-run accident may be allowed.

Clearly, the Allstate court would have rejected the Allcity rationale by characterizing its holding as providing “substantive additional coverage” since it secures redress for an otherwise unavailable claim under New York law. Yet, the Allcity court was not constrained to follow Allstate’s narrow view of the “kinds of coverage” provision.

In this light, we reject the application of Allstate which is neither the most recent statement of the law on this issue, nor is it consistent with the law set forth in Hahn, supra. Instead, we adopt the rationale of the Allcity court and reverse the judgment of the trial court.

Similarly, we find that Appellant has not been precluded from receiving attorney’s fees under Section 1009.-107(1) of the Pennsylvania No-fault Act which provides:

[I]f any overdue No-fault benefits are paid by the obligor after receipt by the obligor of notice of representation of a claimant in connection with a claim or action for the payment of No-fault benefits, a reasonable attorneys’ fee (based on actual time extended) shall be paid by the obligor to such attorney.

Section 1009.106(a)(2) defines benefits which are overdue as those not paid “within 30 days after the receipt by the obligor of each submission of reasonable proof.” This Section further provides that “an obligor who rejects a claim for basic loss benefits shall give to the claimant written notice of the rejection promptly, but in no event more than thirty days after the receipt of reasonable proof of the loss.” See 40 P.S. § 1009.106(a)(5).

In the instant case, Appellant’s application for No-fault benefits, documentation proving loss, and a calculation of work-loss benefits, were sent to Appellee on February 25, 1982. Nearly four months elapsed before Appellee informed Appellant of its decision to deny payment for work-loss benefits. The language of the relevant Sections of the no-fault Act would lead us to conclude that attorney’s fees in this matter are appropriate.

Judgment reversed. Case remanded for further proceedings. Jurisdiction relinquished.

OLSZEWSKI, Judge,

dissenting:

I respectfully dissent from the majority’s decision to adhere to a broad interpretation of the “kinds of coverage” provision found in appellant’s policy. While the majority adopts the rationale of the New York Supreme Court’s decision in Allcity Ins. Co. v. Williams, 120 A.D.2d 1, 506 N.Y.S.2d 974 (2d Department 1986), I find the New York Supreme Court’s decision in Allstate Ins. Co. v. Walsh, 115 Misc.2d 907, 454 N.Y.S.2d 774 (1982), aff'd 99 A.D.2d 987, 472 N.Y.S.2d 867 (1st Department 1984), to be more persuasive. In both cases, the New York Supreme Court addressed the identical issue which is now before our Court, but the First Department and Second Department of that same New York Court reached opposite conclusions on this issue.

In Allstate, respondents, New York residents, were passengers in an insured vehicle which was forced off a road in New Jersey by another vehicle. While there was no physical contact between the vehicles, the insured vehicle was forced down an embankment causing injuries to the respondents. The insurance policy in question was issued in New York by Allstate. Claims were made to Allstate pursuant to the New York No-fault Act under the provisions for hit and run accidents. Allstate, however, denied coverage because New York’s No-fault Act required physical contact between the vehicles to qualify as a hit and run accident. Respondents brought suit, arguing that because New Jersey’s No-fault Act allowed coverage for hit and run accidents without physical contact, Allstate was obligated to provide coverage pursuant to section 672(5) of New York’s No-fault Act. The New York court, however, found in favor of Allstate.

In interpreting section 672(5), the New York court drew a distinction between cases brought under section 672(5) where the issue was whether the sister state’s minimum dollar amount of coverage should be provided and cases brought under section 672(5) where the issue was whether the sister state’s coverage should be provided when the issuing state would provide no coverage. The New York court explained:

This court is of the opinion that both subdivision 5 of section 672 of the Insurance Law and section 60.1(e) of the Insurance Department Regulations do not create substantive additional coverage for accidents which occur in a sister State.... The minimum amount of coverage does not denote what is covered but rather the extent of liability in terms of the dollar limitation____ In this instance, respondents seek to expand upon this concept by asserting that any “kind” of coverage afforded in a sister State should be ipso facto the controlling coverage if the accident occurred in that State and the coverage in that State is more comprehensive. This is not what was intended by the Legislature when it enacted subdivision 5 of section 672. Rather, the Legislature has endeavored to afford the same minimum amount of liability as would be imposed in a sister State if that State’s minimum is greater than New York’s.

115 Misc.2d at 913, 454 N.Y.S.2d at 778-79.

Similarly, in the instant case, appellant is seeking “substantive additional coverage” by seeking benefits under Pennsylvania’s No-fault Act which would not be recoverable in any amount under New York’s No-fault Act. I agree with the New York court that section 672(5) does not allow coverage based on a sister state’s no-fault act where the New York No-fault Act specifically precludes that type of coverage. I, consequently, would find that “it is more equitable to provide each person with the coverage he/she expected and paid premiums for in his/her state of domicile than to impose Pennsylvania law upon him/her merely for being injured while traveling through the state.” Wierbinski v. State Farm Mutual Automobile Ins. Co., 477 F.Supp. 659 (W.D.Pa.1979). Accordingly, I would find that the trial court correctly concluded that Pennsylvania law was not applicable pursuant to section 672(5) of New York’s No-fault Act. In addition, since I would find that appellant is not entitled to work-loss benefits under Pennsylvania’s No-fault Act, appellant would thus be precluded from attorney’s fees under section 1009.107 of the Pennsylvania Act. See 40 P.S. § 1009.107(1).

I, therefore, would affirm the order of the trial court.

      . Act of July 19, 1974, P.L. 489, No. 176, Sec. 101, et seq., 40 P.S. § 1009.101 et seq., repealed, Act of February 12, 1984, P.L. 26, No. 11, Sec. 8(a), effective October 1, 1984. At the time of the motor vehicle accident in question, the now repealed No-fault Act was still in effect.


author: JOHNSON, Judge:

text:
    537 A.2d 854
    In the Interest of Ramon RODRIQUEZ. Appeal of Ramon RODRIQUEZ.
    Superior Court of Pennsylvania.
    Argued Dec. 18, 1987.
    Filed Feb. 17, 1988.

      Peter Rosalsky, Assistant Public Defender, for appellant.
    JoAnn Verrier, Assistant District Attorney, Philadelphia, for Com., appellee.

      Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, ROWLEY, McEWEN, OLSZEWSKI, MONTEMURO, POPOVICH and JOHNSON, JJ.
   JOHNSON, Judge:

Following a hearing appellant was adjudicated delinquent based on charges of criminal mischief and criminal conspiracy. The charges were based on appellant’s participation in the spray-painting of graffiti on the wall of a building. Appellant was placed on probation on the conditions that he attend school, remove the graffiti under the supervision of an anti-graffiti program, speak at meetings on behalf of the program and perform 100 hours of “scrub time” with the program. The order of adjudication of delinquency and commitment was reduced to judgment. From that judgment appellant appeals to this court raising one issue:

WAS NOT THE EVIDENCE, WHICH ESTABLISHED THAT APPELLANT SPRAY-PAINTED GRAFFITI ON THE OUTSIDE WALL OF A BUILDING, INSUFFICIENT TO SUSTAIN THE ADJUDICATION FOR CRIMINAL MISCHIEF AND CONSPIRACY TO COMMIT CRIMINAL MISCHIEF INASMUCH AS SUCH EVIDENCE DID NOT ESTABLISH THAT APPELLANT TAMPERED WITH “TANGIBLE PROPERTY” AS REQUIRED BY THE STATUTE?

Finding no merit to the argument we affirm.

The thrust of appellant’s argument is that the statutory provision defining criminal mischief proscribes tampering with the tangible property of another. Appellant argues, based on Commonwealth v. Lezinsky, 264 Pa.Super. 476, 400 A.2d 184 (1979) and Commonwealth v. Williams, 299 Pa.Super. 278, 445 A.2d 753 (1982) that tangible property is limited to personal property and does not include real property. He contends that the wall of a building does not qualify as tangible property. We find tangible property, as that phrase is used in the criminal mischief statute, includes both real and personal property. To the extent that Lezin sky and Williams find to the contrary, they are expressly overruled.

Criminal mischief is defined at 18 Pa.C.S. § 3304 as follows:

§ 3304. Criminal Mischief
(a) Offense Defined. — A person is guilty of criminal mischief if he:
(1) damages tangible property of another intentionally, recklessly, or by negligence in the employment of fire, explosives, or other dangerous means listed in section 3302(a) of this title (relating to causing or risking catastrophe);
(2) intentionally or recklessly tampers with tangible property of another so as to endanger person or property; or
(3) intentionally or recklessly causes another to suffer pecuniary loss by deception or threat.

18 Pa.C.S. § 3304(a). While the statute uses the words tangible property, it does not define them. In advancing his definition of the words, appellant directs our attention to two Superior Court Opinions which discuss the meaning of tangible property as it is used in the criminal mischief statute.

In Commonwealth v. Lezinsky, 264 Pa.Super. 476, 400 A.2d 184 (1979) the appellant was convicted of arson, criminal conspiracy and criminal mischief. He was sentenced to two concurrent terms of five to ten years on the arson and conspiracy convictions with a consecutive two to five years on the criminal mischief conviction. The convictions were based on appellant’s participation in the ignition of a barn with the resultant destruction of the barn and livestock. On appeal the court vacated all sentences, as well as the conviction for criminal mischief. The court reasoned that the ignition of the barn constituted a single act or transaction. Although it could be the basis of the various charges, as between the criminal mischief and arson charges it could be the basis of only one sentence. In reaching this conclusion the court reviewed the trial judge’s analysis stating:

The trial judge’s opinion rejected defendant’s argument that the charge of criminal mischief should “fall” because it “merges” into the arson charge as a “lesser included offense of the crime of arson.” For this purpose he pointed out correctly that criminal mischief, under the Crimes Code contains two elements not included in arson, specifically criminal mischief involves (1) “tangible property”, (personal property) rather than a “building or occupied structure” (real property); and (2) intentional, reckless, or negligent acts, whereas arson does not include negligence.

264 Pa.Super. at 479, 400 A.2d at 186.

This language was followed in Commonwealth v. Williams, 299 Pa.Super. 278, 445 A.2d 753 (1982). Williams was convicted of arson based on a fire at a foundry where he worked. On appeal Williams contended that the trial court erred in refusing to give a jury charge on criminal mischief as a lesser included offense of arson. The Superi- or Court concluded that criminal mischief is not a lesser included offense of arson because all of the elements of criminal mischief are not included in arson. The court stated:

Criminal mischief contains two elements not included in arson. First, criminal mischief involves “tangible property”, while arson involves a “building or occupied structure”. In Commonwealth v. Lezinsky, 264 Pa.Super. 476, 479, 400 A.2d 184, 186 (1979), the court indicated that “tangible property” is limited to personal property, while arson involves real property. Second, criminal mischief involves an intentional, reckless or negligent act, while arson does not include negligent conduct.

Williams, 299 Pa.Super. at 281, 445 A.2d at 755 (emphasis in original). Thus, in analyzing the question of lesser included offense the Williams court relied on the Lezinsky definition of tangible property as being limited to personal property, and not including a building or occupied structure. Such a definition of the words is contrary to the plain meaning of the statutory language and, as we have stated, insofar as Williams and Lezinsky stand for such a definition they are overruled.

The Statutory Construction Act of 1972, 1 Pa.C.S. § 1501 et seq., provides that:

(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.
(b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.

1 Pa.C.S. § 1921(a) and (b). Similarly the Statutory Construction Act provides that:

(a) Words and phrases shall be construed according to rules of grammar and according to their common and approved usage; but technical words and phrases and such others as have acquired a peculiar and appropriate meaning or are defined in this part, shall be construed according to such peculiar and appropriate meaning or definition.

1 Pa.C.S. § 1903(a). Thus this Court’s duty is to give effect to the obvious meaning of clear and unambiguous statutory language. Commonwealth v. Patchett, 284 Pa.Super. 252, 425 A.2d 798 (1981). We must construe the statutory language according to its plain meaning. Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982).

In order to ascertain the meaning of the words tangible property we turn to Black’s Law Dictionary which defines tangible property as:

All property which is touchable and has real existence (physical) whether it is real or personal.

Black’s Law Dictionary 1096 (5th ed. 1979). Similarly the Pennsylvania Law Encyclopedia explains that:

With relation to its quality, property is also classified as tangible or intangible. Tangible property has been defined as that which may be felt or touched. It must necessarily be corporeal, and may be either real or personal. Intangible property, on the other hand, is incorporeal. It includes interests represented by papers such as deeds, bonds, and corporate stocks.

30 Pennsylvania Law Encyclopedia Property § 1 (1960) (footnotes omitted). Finally, American Jurisprudence, Second Edition, discusses tangible property in its definition of corporeal property and states:

In its usual accepted sense, however, corporeal property is that which is palpable or tangible and is material and physical in its nature.

63A Am.Jur.2d Property § 11 (1984) (footnote omitted). Furthermore:

Corporeal property, having regard to its immovable or movable nature and character, is classified as real and personal, or as movable and immovable.

Id. § 10 (footnotes omitted).

We find that the words tangible property as they are used in the criminal mischief statute are clear and free from all ambiguity. According to their common and approved usage the words tangible property include both real and personal property. As applied to the facts of this case the words certainly include the wall of a building. We find no merit to appellant’s argument that, as a matter of law, his act of spray-painting graffiti on the outside of a building wall does not violate the criminal mischief statute. Since a building wall is tangible property, the evidence was sufficient to support the adjudication. As this is the same basis for his contention that the evidence was insufficient to sustain the conspiracy adjudication, that argument likewise fails.

We thus affirm the adjudication of delinquency, commitment and disposition.

Judgment affirmed.