text:
    632 A.2d 557
    Joseph BRITT, Appellant, v. CHESTNUT HILL COLLEGE and Thomas Earl Klee, Appellees.
    Superior Court of Pennsylvania.
    Argued June 29, 1993.
    Filed Oct. 13, 1993.

      Richard P. Myers, Philadelphia, for appellant.
    Fredrick C. Hanselmann, Philadelphia, for appellees.
    Before DEL SOLE, BECK and HESTER, JJ.
   DEL SOLE, Judge:

This is an appeal from an order granting Appellees’, Chestnut Hill College’s and Thomas Earl Klee’s, preliminary objections to Appellant, Joseph Britt’s, Complaint. We reverse in part, and affirm in part.

The facts underlying this suit, are as follows. Appellant, a detective, enrolled in a Master’s Degree program at Chestnut Hill College in 1987 and expected to graduate in May of 1990. In order to fulfill the requirements for his degree, in June 1989, Appellant enrolled in a required one week course, entitled, “Gender Stereotyping”. The course was taught by Appellee Klee. According to Appellant, as part of a classroom exercise, Appellee Klee directed another student, who Appellant claims was a “known” homosexual, to make physical advances towards Appellant. The student complied by telling Appellant that he was attracted to him and by touching Appellant above the knee. Appellant avers in his Complaint that he rejected the student’s advances and that on the following day, Appellee Klee assigned that same student to serve as a “facilitator” to “deal with Appellant’s anger.” Appellant claims that he then voiced an objection with Appellee Klee suggesting that the exercise was improper. According to Appellant, Appellee Klee then became openly critical of Appellant’s attitude and performance in the class and awarded him a “C” grade for the course.

Appellant claims that Appellee Klee thereafter did everything within his power to sabotage Appellant’s reputation and academic career. He alleges that Appellee Klee arranged to have himself assigned as Appellant’s academic advisor and, after doing so, personally revoked, and successfully persuaded other instructors to revoke, certain pre-approved credits that had been granted to Appellant upon admission to the college. According to Appellant, the revocation of those credits, caused him not to graduate as scheduled in May 1990.

As a result, Appellant initiated a lawsuit against Appellees by filing a six count Complaint setting forth claims of defamation and slander, breach of contract, civil conspiracy, assault and battery, sex discrimination and intentional and malicious infliction of mental distress. In response, Appellees filed preliminary objections. The trial court denied Appellees’ preliminary objections to Appellant’s defamation and slander claims, but granted Appellees’ preliminary objections in the nature of a demurrer to the assault and battery, sex discrimination and intentional infliction of mental distress counts. The court also sustained Appellees’ preliminary objection to the civil conspiracy claim and granted their preliminary objections in the nature of a motion to strike with respect to the breach of contract count. This appeal followed.

Appellant raises the following issues for our consideration.
1. Did the lower court err by granting Defendant’s Preliminary Objections in the nature of a Motion to Strike Plaintiffs complaint, Count 2, for Breach of Contract and tortious interference with contract?
2. Did the lower court err by granting Defendant’s Preliminary Objections in the nature of a demurrer to Plaintiffs complaint, Count 6, for Intentional Infliction of Mental Distress?

Appellant’s brief at 3.

Before discussing Appellant’s claims, it is first necessary to address the appealability of those issues. “An order dismissing some, but not all, counts of a multi-count complaint is generally interlocutory and not immediately appealable.” Meinhart v. Heaster, 424 Pa.Super. 433, 622 A.2d 1380 (1993) citing Holmes v. Lado, 412 Pa.Super. 218, 602 A.2d 1389 (1992), alloc. den., 530 Pa. 660, 609 A.2d 168 (1992) and Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983). However, “if the dismissed count states a cause of action that is separate and distinct from the remaining counts, the order dismissing that count is final and appealable; if the dismissed count merely states an alternate theory of recovery, the order dismissing it is interlocutory and not appealable.” Meinhart, 424 Pa.Super. at 436, 622 A.2d at 1381 citing Motheral v. Burkhart, 400 Pa.Super. 408, 416, 583 A.2d 1180, 1185 (1990) and Praisner, 313 Pa.Super. 332, 459 A.2d 1255 (1983).

In the present case, Appellant’s claim for breach of contract is clearly separate and distinct from Appellant’s remaining claim of defamation. Therefore, the more difficult question to answer is whether Appellant’s claim for the intentional infliction of emotional distress is separate and distinct from the defamation claim. Appellees argue that because Appellant has claimed the same amount of damages for the emotional distress and defamation claims, that they are merely alternate forms of recovery and therefore, the order dismissing the emotional distress claim is interlocutory. We disagree.

The torts in question, are separate and distinct. Furthermore, the nature of the damages suffered by a plaintiff as a result of their commission are not alike. The damages awarded to a plaintiff for defamation are to compensate for loss of reputation and standing in the community, while the damages awarded for intentional infliction of emotional distress are to compensate for the physical and emotional injuries suffered.

In the present case, Appellant has averred these claims separately. While Appellant incorporates the allegations contained in his defamation count in his intentional infliction of emotional distress count, they are not alternate theories of recovery. Appellant is clearly seeking compensation for different injuries. In addition, we note that even though two theories of recovery may have overlapping elements, that alone will not preclude a plaintiff from recovering for both.

After reviewing Appellant’s claims for defamation and intentional infliction of emotional distress, we hold that they are distinctly separate claims for separate harms and that the trial court’s order dismissing Appellant’s claim for intentional infliction of emotional distress is therefore, final and appeal-able. Accordingly, we will now address Appellant’s claims.

Appellant first alleges that the trial court erred in granting Appellees’ Motion to strike Appellant’s breach of contract claim. Pennsylvania Rule of Civil Procedure 1028(a)(2), provides that a party may file preliminary objections to a pleading if it fails to “conform to [a] law or rule of court or” if it includes “scandalous or impertinent matter”. See Pa.R.C.P. No. 1028(a)(2), 42 Pa.C.S.A. In their Preliminary Objections, Appellees alleged that Appellant’s breach of contract claim did not comply with Pa.R.C.P. No. 1019(c), and, therefore, should be stricken from the Complaint. Rule 1019(c) provides as follows:

Rule 1019. Contents of Pleadings, General and Specific Averments
(c) In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of such performance or occurrence shall be made specifically and with particularity.

Pa.R.C.P. No. 1019(c), 42 Pa.C.S.A.

In its Opinion, the trial court did not address Appellees’ preliminary objection to Appellant’s breach of contract claim as it was raised by Appellees, i.e., as not complying with Rule 1019(c). Instead, the trial court held that Appellee college was entitled to revoke the credits in question because Appellant did not have a vested right in receiving a degree.

We disagree with this analysis. After reviewing the averments contained in Appellant’s Complaint, it is clear to this court, that Appellant complied with the requirements of Rule 1019(c). He generally averred that he had “fulfilled the requirements” for his master’s degree and that the college failed to award it to him. Furthermore, we reject the trial court’s holding that, “Chestnut Hill College is entitled to revoke credits previously granted for work performed out of school.” It is apparent to this court that such a holding ignores the fact that an institution may make a contractual obligation to a student which it is not free to later ignore.

The economic reality is that colleges and universities are competing to attract non-traditional age students and many of those institutions have designed programs to cater to them. Through advertising and recruitment campaigns, an increasing number of colleges and universities are promising students who wish to return to school, flexible schedules, evening and weekend classes, and academic credit for life experience. Students, ip turn, attracted by these options, may seek to apply to a particular institution and inquire as to the requirements they will have to meet in order to achieve their degree. Where an individual is induced to enroll in a university or college based upon an award of certain life experience credits, the institution cannot then, after the student’s enrollment, revoke those credits.

We point out that, by reaching this conclusion, we are in no way attempting to interfere with an academic institution’s rights to develop its curriculum and set requirements for a given degree. However, where a college or university promises a student, upon enrollment, a certain amount of life experience credits, the purpose of which is to enable that student, to graduate at an accelerated rate, provided that he or she successfully completes the course chosen, the institution cannot breach its promise. Where a student can prove that such an agreement was made, the university or college cannot revoke the life experience credits.

In the present case, Appellant has averred that upon admission to Appellee college, he was awarded certain life experience credits. Therefore, because we find that Appellant complied with Pa.R.C.P. No. 1019(c), 42 Pa.C.S.A. and that the trial court erroneously based its ruling on the premise that Appellant had failed to state a cause of action for breach of contract because Appellee college was entitled to revoke Appellant’s life experience credits, we reverse the trial court’s order that struck that claim.

Appellant also alleges that the trial court erred in granting Appellee’s preliminary objections in the nature of a demurrer to Appellant’s claim for intentional infliction of emotional distress.

Our court has consistently held that a preliminary objection in the nature of a demurrer should only be granted in cases that are free from doubt.

A preliminary objection in the nature of a demurrer admits every well-pleaded fact and all inferences reasonably deducible therefrom; it tests the legal sufficiency of the challenged complaint and will be sustained only in those cases where the pleader has clearly failed to state a claim for which relief may be granted. If there is any doubt as to whether a claim for relief had been stated, the trial court should resolve it in favor of overruling the demurrer.

Rutherfoord v. Presbyterian-University Hospital, 417 Pa.Super. 316, 612 A.2d 500, 502 (1992), citing Creeger Brick and Bldg. Supply Inc. v. Mid-State Bank and Trust Co., SEDA, 385 Pa.Super. 30, 560 A.2d 151 (1989) [additional citations omitted in original].

The trial court offered the following rationale for sustaining Appellees’ demurrer:

... The class was a learning environment, and in such an atmosphere plaintiff should expect to hear open criticism, exchange of ideas and to expect embarrassment at times. None of the six comments listed in paragraph 22 of the complaint rise to the level of outrageous conduct necessary to maintain a cause of action for intentional infliction of emotional distress.
It is this Court’s responsibility to determine if conduct alleged in the cause of action reaches the requisite level of outrageousness to support such a claim. Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir.1990); Motheral v. Burkhart 400 Pa.Super. 408, 583 A.2d 1180 (1990).
To prevail or claim intentional infliction of emotional distress, plaintiff must be able to demonstrate that defendants, by extreme and outrageous conduct, intentionally or recklessly caused plaintiff severe emotional distress. Andrews, supra; Motheral, supra; Salerno v. Philadelphia Newspapers, Inc., 377 Pa.Super. 83, 546 A.2d 1168 (1988); Jackson v. Sun Oil Co. of Pennsylvania, 361 Pa.Super. 54, 521 A.2d 469 (1987).
Other conduct listed, third party conversations between Klee and other faculty members, likewise could hardly be considered outrageous or an intentional infliction of anything on anyone.
To “deliberately [give] plaintiff a ‘C’ grade for the course”, to not “negotiate grades” with students, and to make sure plaintiff did not achieve degree status before being fully qualified to practice as a counselor all fall short of the outrageous requirement necessary to sustain such a cause of action. Further, the allegation in the nature of a conclusion that these actions were intentionally done to cause mental distress” is not borne out by the facts in the complaint.

Trial Court Opinion dated March 9, 1993, at 5-6.

Intentional infliction of emotional distress is defined in the Restatement (Second) of Torts as follows:

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

Restatement (Second) of Torts, § 46(1).

In addition to requiring that a plaintiff establish that the conduct complained of was outrageous, the Pennsylvania Supreme Court has required that the plaintiff present competent medical evidence to support the claim. In Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988 (1987), our supreme court affirmed this court’s order sustaining a compulsory nonsuit for a claim of intentional infliction of emotional distress. Initially, the court noted that while it had previously acknowledged Section 46, it had never “had occasion to specifically adopt section 46 as the law in Pennsylvania”. Id. With that in mind, the court ultimately held that “if section 46, of the Restatement is to be accepted in this Commonwealth, at the very least, existence of the alleged emotional distress must be supported by competent medical evidence.” Kazatsky, 515 Pa. at 197, 527 A.2d at 988 (1987). Applying that standard to the facts before it, the supreme court sustained the compulsory nonsuit because the record revealed that neither appellant had sought medical treatment and that they failed to support their claim with competent medical evidence.

In the present case, we agree with the trial court’s conclusion that the facts, as set forth by Appellant in his Complaint, are insufficient to support his claim of intentional infliction of emotional distress. Furthermore, from our review of the Complaint, it is apparent that Appellant has failed to allege that Appellees’ conduct caused him to seek medical treatment. Therefore, we affirm the trial court’s order dismissing Appellant’s claim for the intentional infliction of emotional distress.

Order reversed in part, and affirmed in part.

Jurisdiction relinquished.

      . The present action was commenced in June 1991. On July 6, 1992, Rule 341 of the Pennsylvania Rules of Appellate Procedure, 42 Pa. C.S.A. defining “final orders” was amended. In particular, subsection (c) of the rule was added to provide for, under certain circumstances, an immediate appeal from an order dismissing "one or more but fewer than all of the claims” set forth in a complaint. This amendment specifically states however, that it is only to be applied to "actions commenced in a court ... after July 6, 1992.” Therefore, in order to determine the appealability of Appellant's issues, we must rely on case law.

      . This court has held that, "[a] communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Livingston v. Murray, 417 Pa.Super. 202, 612 A.2d 443 (1992), alloc. den., 533 Pa. 601, 617 A.2d 1275 (1992). The tort of intentional infliction of emotional distress however,. focuses on an individual's conduct. "To prevail on a claim of intentional infliction of emotional distress, ... the plaintiff must prove that the defendant, by extreme and outrageous conduct, intentionally or recklessly caused the plaintiff severe emotional distress.” Motheral, 400 Pa.Super. at 408, 583 A.2d at 1180.

      . To the extent that Appellant seeks to argue tortious interference with contract, our review of the record causes us to conclude that no such claim was ever made.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    632 A.2d 562
    Elaine B. PANITZ, M.D., Appellee v. Kenneth W. BEHREND and Barbara Behrend Ernsberger, Individually and T/A Behrend and Ernsberger, Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 1, 1993.
    Filed Oct. 13, 1993.

      Kenneth R. Behrend, Pittsburgh, for appellants.
    Alan S. Gold, Jenkintown, for appellee.
    Before ROWLEY, President Judge, and WIEAND and CIRILLO, JJ.
   WIEAND, Judge:

Elaine B. Panitz, a medical doctor who regularly offers her services as an expert medical witness, was hired by Kenneth W. Behrend, Barbara Behrend Ernsberger and the law firm of Behrend and Ernsberger to give testimony on behalf of clients whom the law firm represented in a personal injury action. When an unfavorable verdict was returned, the lawyers refused to pay the expert witness the balance of the moneys which they allegedly had agreed to pay. Panitz sued to recover these moneys. The law firm thereupon filed an answer to the complaint which contained a counterclaim for damages resulting from the unfavorable verdict. This, it was alleged, had been caused by gross negligence and misrepresentation regarding the substance of Panitz’s testimony at trial. To this counterclaim Panitz filed preliminary objections in the nature of a demurrer. When the trial court sustained the preliminary objections and dismissed the counterclaim, the defendant law firm appealed.

When reviewing an appeal from an order sustaining preliminary objections in the nature of a demurrer to a pleading, we accept as true all well-pleaded facts and all reasonable inferences to be drawn therefrom. The decision of the trial court will be affirmed only if there is no legal theory under which a recovery can be sustained on the facts pleaded. Allegheny County v. Commonwealth, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985); Rutherfoord v. Presbyteriam-University Hospital, 417 Pa.Super. 316, 321-322, 612 A.2d 500, 502-503 (1992).

In the underlying action, the Behrend firm had represented the Charney family whose members, allegedly, had been exposed to formaldehyde in building materials and had sustained formaldehyde sensitization reactions. Panitz was employed to support the alleged cause of action. It was expected that she would be cross-examined about the lack of such sensitization in cigarette smokers who regularly are exposed to much greater concentrations of formaldehyde than were the Charneys. In preparation for trial, Panitz provided the Behrend firm with a transcript of depositions in a prior case in which she had postulated on the lack of sensitization in smokers. Panitz testified at trial, as anticipated, that in her opinion the Charneys’ injuries had been caused by formaldehyde present in building materials. When cross-examined about the lack of sensitization in cigarette smokers, however, Panitz conceded that she could not explain the apparent inconsistency. After trial, Panitz explained that she had come to realize prior to trial that the reasoning upon which she had relied in earlier depositions was inaccurate.

As a general rule there is no civil liability for statements made in the pleadings or during trial or argument of a case so long as the statements are pertinent. Post v. Mendel, 510 Pa. 213, 221, 507 A.2d 351, 355 (1986); Greenberg v. Aetna Ins. Co., 427 Pa. 511, 516, 235 A.2d 576, 577 (1967), cert. denied, Scarselletti v. Aetna Ins. Co., 392 U.S. 907, 88 S.Ct. 2063, 20 L.Ed.2d 1366 (1968); Moses v. McWilliams, 379 Pa.Super. 150, 163, 549 A.2d 950, 956 (1988), allocatur denied, 521 Pa. 631, 558 A.2d 532 (1989); Pelagatti v. Cohen, 370 Pa.Super. 422, 436, 536 A.2d 1337, 1344 (1987), allocatur denied, 519 Pa. 667, 548 A.2d 256 (1988). The privilege, which includes judges, lawyers, litigants and witnesses, had its origin in defamation actions premised upon statements made during legal actions, but it has now been extended to include all tort actions based on statements made during judicial proceedings. Thus, in Clodgo by Clodgo v. Bowman, 411 Pa.Super. 267, 601 A.2d 342 (1992), the judicial or testimonial privilege was held to insulate a court appointed medical expert witness from liability premised upon malpractice. See also: Moses v. McWilliams, supra; Brown v. Delaware Valley Transplant Program, 371 Pa.Super. 583, 538 A.2d 889 (1988). “The form of the cause of action is not relevant to application of the privilege. Regardless of the tort contained in the complaint, if the communication was made in connection with a judicial proceeding and was material and relevant to it, the privilege applies.” Clodgo by Clodgo v. Bowman, supra, 411 Pa.Super. at 273, 601 A.2d at 345. The privilege is equally applicable where the cause of action is stated in terms of misrepresentation or a contractual requirement to exercise due care.

The purpose for the privilege is to preserve the integrity of the judicial process by encouraging full and frank testimony. This was recognized by the Supreme Court of the United States in Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), where the Court said:

“[T]he claims of the individual must yield to the dictates of public policy, which requires that the paths which lead to the ascertainment of truth should be left as free and unobstructed as possible.” Calkins v. Sumner, 13 Wis. 193, 197 (1860). A -witness’ apprehension of subsequent damages liability might induce two forms of self-censorship. First, witnesses might be reluctant to come forward to testify. See Henderson v. Broomhead, supra, 578-579, 157 Eng. Rep., at 968. And once a witness is on the stand, his testimony might be distorted by the fear of subsequent liability. See Barnes v. McCrate, 32 Me. 442, 446-447 (1851)____ A witness who knows that he might be forced to defend a subsequent lawsuit, and perhaps to pay damages, might be inclined to shade his testimony in favor of the potential plaintiff, to magnify uncertainties, and thus to deprive the finder of fact of candid, objective, and undistorted evidence. See Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Colum.L.Rev. 463, 470 (1909).

Id. 460 U.S. at 332-333, 103 S.Ct. at 1114, 75 L.Ed.2d at 103-104. Similarly, the Supreme Court of Pennsylvania, in Binder v. Triangle Publications, Inc., 442 Pa. 319, 275 A.2d 53 (1971), explained:

The reasons for the absolute privilege are well recognized. A judge must be free to administer the law without fear of consequences. This independence would be impaired were he to be in daily apprehension of defamation suits. The privilege is also extended to parties to afford freedom of access to the courts, to witnesses to encourage their complete and unintimidated testimony in court, and to counsel to enable him to best represent his client’s interests.

Binder v. Triangle Publications, Inc., supra at 323-324, 275 A.2d at 56. See also: Moses v. McWilliams, supra, 379 Pa.Super. at 164, 549 A.2d at 957. The privilege, thus, serves the salutary purpose of encouraging witnesses to give frank and truthful testimony. Having testified truthfully in the judicial process, a witness should not thereafter be subjected to civil liability for the testimony which he or she has given.

“[Wjitness immunity should and does extend to pretrial communications. The policy of providing for reasonably unobstructed access to the relevant facts is no less compelling at the pre-trial stage of judicial proceedings.” Moses v. McWilliams, supra 379 Pa.Super. at 166, 549 A.2d at 958. Thus, the privilege is not to be avoided by the disingenuous argument that it was not the in-court testimony that caused the loss but the pre-trial representations about what the in-court testimony would be. The privilege includes all communications “issued in the regular course of judicial proceedings and which are pertinent and material to the redress or relief sought.” Post v. Mendel, supra, 510 Pa. at 221, 507 A.2d at 355 (emphasis omitted). See also: Kahn v. Burman, 673 F.Supp. 210, 213 (E.D.Mich.1987), aff'd, 878 F.2d 1436 (6th Cir.1989); Greenberg v. Aetna Ins. Co., supra at 516, 235 A.2d at 577 (applying privilege to statements in pleadings); Moses v. McWilliams, supra (applying privilege to statements made by witness to attorney during pre-trial conference); Pelagatti v. Cohen, supra, 370 Pa.Super. at 436, 536 A.2d at 1344 (applying privilege to statements in pre-trial affidavits). The “expert’s courtroom testimony is the last act in a long, complex process of evaluation and consultation with the litigant. There is no way to distinguish the testimony from the acts and communications on which it is based.” Bruce v. ByrneStevens & Associates Engineers, Inc., 113 Wash.2d 123, 135, 776 P.2d 666, 672 (1989). See also: Middlesex Concrete Products v. Carteret Ind. Ass’n, 68 N.J.Super. 85, 92,172 A.2d 22, 25 (1961).

There also is no reason for refusing to apply the privilege to friendly experts hired by a party. The policy of encouraging frank and objective testimony, without fear of civil liability therefor, “obtains irrespective of the manner by which the witness comes to court.” Bruce v. Byrne-Stevens & Associates Engineers, Inc., supra, 113 Wash.2d at 129, 776 P.2d at 669. The primary purpose of expert testimony is not to assist one party or another in winning the case but to assist the trier of the facts in understanding complicated matters.

In Bruce v. Byrne-Stevens & Associates Engineers, Inc., supra, a claim was made against an engineering witness on grounds that the expert had negligently miscalculated the cost of restoring lateral support to plaintiff^ land. In dismissing the action, the Supreme Court of Washington held that (1) an expert witness was entitled to the privilege even if he or she had been retained and compensated by a party rather than appointed by the court, and (2) immunity extended not only to in-court testimony but also to acts and communications which had occurred in connection with preparing that testimony. The court reasoned:

While it may be that many expert witnesses are retained with the expectation that they will perform as “hired guns” for their employer, as a matter of law the expert serves the court. The admissibility and scope of the expert’s testimony is a matter within the court’s discretion. Orion Corp. v. State, 103 Wash.2d 441, 462, 693 P.2d 1369 (1985). That admissibility turns primarily on whether the expert’s testimony will be of assistance to the finder of fact. ER 702. The court retains the discretion to question expert witnesses. ER 614(b). The mere fact that the expert is retained and compensated by a party does not change the fact that, as a witness, he is a participant in a judicial proceeding.

Id. 113 Wash.2d at 129-130, 776 P.2d at 669. A contrary holding, the court concluded, would result in a loss of objectivity in expert testimony generally and would discourage anyone who was not a professional witness from testifying. Although an intermediate appellate court in California has held that the privilege should not apply to a “friendly” expert, see: Mattco Forge, Inc. v. Arthur Young & Co., 5 Cal.App.4th 392, 6 Cal.Rptr.2d 781 (1992), and an intermediate appellate court in Arizona has implied in dictum that it would not be inclined to extend the privilege to “friendly” experts, see: Lavit v. Superior Court, 173 Ariz. 96, 839 P.2d 1141 (Ariz.Ct.App.1992), we conclude that the better view is that followed by the Supreme Court of Washington. To allow a party to litigation to contract with an expert witness and thereby obligate the witness to testify only in a manner favorable to the party, on threat of civil liability, would be contrary to public policy. Griffith v. Harris, 17 Wis.2d 255, 116 N.W.2d 133 (1962), cert. denied, 373 U.S. 927, 83 S.Ct. 1530, 10 L.Ed.2d 425 (1963). See also: Curtis v. Wolfe, 160 Ill.App.3d 588, 513 N.E.2d 1139, 112 Ill.Dec. 530 (1987), appeal denied, 118 Ill.2d 542, 520 N.E.2d 384, 117 Ill.Dec. 223 (1988). “Fundamentally, no witness can be required to testify, and no witness should be expected to testify, to anything other than the truth as he [or she] sees it and according to what he [or she] believes it to be. The same is expected of expert witnesses.” Schaffer v. Donegan, 66 Ohio App.3d 528, 538, 585 N.E.2d 854, 860 (1990), jurisdictional motion overruled, 55 Ohio St.3d 722, 564 N.E.2d 500 (1990). An expert witness will not be subjected to civil liability because he or she, in the face of conflicting evidence or during rigorous cross-examination, is persuaded that some or all of his or her opinion testimony has been inaccurate.

Because appellee was immune from civil liability for testimony which she gave, the trial court properly dismissed the counterclaim against her.

Affirmed.


author: CIRILLO, Judge:

text:
    632 A.2d 566
    S & T BANK (Formerly Savings & Trust Company of Pennsylvania) By Assignee Nicholas Dalessio, v. Samuel DALESSIO, Jr., appeal of Rosalie DALESSIO.
    Superior Court of Pennsylvania.
    Argued Aug. 31, 1993.
    Filed Oct. 14, 1993.

      Joseph M. Wymard, Pittsburgh, for appellant.
    Peter V. Marcoline, Jr., Pittsburgh, for S & T Bank, appellee.
    Before ROWLEY, President Judge, and WIEAND and CIRILLO, JJ.
   CIRILLO, Judge:

Rosalie Dalessio (Wife) appeals from an order entered in the Court of Common Pleas of Indiana County denying a petition to set aside a sheriffs sale of seven parcels of real estate and denying exceptions to the sheriffs schedule of distribution. We affirm.

Samuel Dalessio (Husband) and Wife were married on February 12, 1967 and were divorced in 1991. Wife has had possession of the marital residence since the time of the parties’ separation, this residence being one of the properties purchased at the sheriffs sale. During the 1980’s, Husband had obtained numerous loans at the S & T Bank (Bank) to further his business. Wife signed an agreement of guarantee and suretyship with the Bank to guarantee the loans. The loans were consolidated and a note was issued in the amount of $250,000.00. During the same time period, Husband obtained a mortgage and additional loans from the Bank. The Bank relied on the guarantee by Wife in issuing these loans. On March 2, 1990, the Bank filed a complaint in confession of judgment against Husband in the amount of $262,500.00, which included the original amount of the consolidated loan and attorney costs. Several months later, appellee Nicholas Dalessio (Nicholas), who is Husband’s brother, purchased all of the judgments against Husband.

Following this purchase and subsequent assignment of the judgments to Nicholas, Nicholas proceeded with execution. Wife filed a request for special relief requesting a stay of the sheriffs sale. Hearings were held and the trial court found that the real estate in Husband’s name was marital property and, based on Wife’s signature on the agreement of guarantee and suretyship, the debt was also marital debt. Consequently, the court denied Wife’s request for a permanent stay.

After a failed execution due to defects in the sheriff sale proceedings, the sale which is the subject of this appeal was held in November, 1992. Dana Dalessio, daughter of Husband and Wife, appeared on behalf of Wife and participated in the bidding process. Nicholas’s bid of $375,000.00 for all parcels made him the successful bidder.

In December, 1992, Wife filed a petition to set aside the sheriffs sale and requested a jury trial. Additionally, Wife filed exceptions to the proposed schedule of distribution. A hearing was held before the Honorable William T. Martin on both the petition and exceptions. Since there had been prior testimony concerning the values of the properties exposed to sale, transcripts of this testimony were admitted into evidence. Nicholas’s real estate appraiser valued the parcels subject to execution at $365,000.00, while Wife’s appraiser set the total value of the parcels at $657,000.00. The debt owed to Nicholas as of the date of the sheriffs sale, on all liens held by him, was $481,969.00.

The trial court denied Wife’s petition and exceptions, including her request for a jury trial. This appeal followed. The following issues have been raised for our review:

(1) Whether Wife is entitled to a jury trial on the factual issues raised in her petition to set aside a sheriffs sale pursuant to Pa.R.C.P. 3132;
(2) Whether the parcels of property sold for a grossly inadequate price; and,
(3) Whether Wife’s marital interest survives a sheriff’s sale on a judgment that was against Husband only.

The decision to set aside a sheriff’s sale is within the sound discretion of the trial court and the court’s decision will not be reversed on appeal unless there is a clear abuse of such discretion. Fidelity Bank v. Pierson, 437 Pa. 541, 264 A.2d 682 (1970); Continental Bank v. Frank, 343 Pa.Super. 477, 495 A.2d 565 (1985); Bornman v. Gordon, 363 Pa.Super. 607, 527 A.2d 109 (1987), appeal denied, 517 Pa. 620, 538 A.2d 874 (1988). When challenging a sheriffs sale, it has also been held that “he would be a strange student of the law who could conclude that a [court] grossly abused [its] discretion by refusing to do that which would have shocked [the] conscience.” Hettler v. Shephard, 326 Pa. 165, 191 A. 581 (1937); Delaware County Nat’l Bank v. Miller, 303 Pa. 1, 154 A. 19 (1931).

Wife first claims that she is entitled to a jury trial to determine the fair market value of the properties sold at the sheriff’s sale. Wife asserts that the proper procedure here would be to permit a jury to determine the fair market values and then have the court make the legal determination of whether the sheriff sale price was grossly inadequate. We disagree.

As correctly pointed out by Wife, petitions to set aside sheriffs sales are brought pursuant to Pennsylvania Rule of Civil Procedure 3132, which states:

Upon petition of any party in interest before delivery of the personal property of the sheriffs deed to real property, the court may, upon proper cause shown, set aside the sale and order a resale or enter any other order which may be just and proper under the circumstances.

Pa.R.C.P. 3132, 42 Pa.C.S.A.

Nowhere in Rule 3132 is there a reference to the right to a jury trial for matters concerning the setting aside of a sheriffs sale. Thus, we do not agree with Wife’s argument that, under Rule 3132, where important real estate rights are involved, a request for a jury trial cannot be summarily denied. Our research has revealed no statute or case which compels the result sought by Wife.

In further support of her argument, Wife cites Article I, Section 6 of the Pennsylvania Constitution, which states:

Trial by jury shall be as heretofore, and the right remains inviolate.

There are, however, limitations: Where no right to a jury trial existed prior to the adoption of the constitution, no right exists now unless one is specifically created by the legislature. See Pottash v. Albany Oil Co., 274 Pa. 384,118 A. 317 (1922); Grant v. GAF Corp., 415 Pa.Super. 137, 157, 608 A.2d 1047, 1058 (1992). Furthermore, Rule 128(f) of the Pennsylvania Rules of Civil Procedure provides:

In ascertaining the intention of the Supreme Court in promulgation of a rule, the Court may be guided by the following presumptions among others.
(f) that no rule shall be constructed to confer a right to trial by jury where such right does not otherwise exist.

Pa.R.C.P. 128(f), 42 Pa.C.S.A.

In order for Wife to substantiate her claim, she must show that the right to a jury trial on the issue of fair market value determination existed prior to the adoption of the Pennsylvania Constitution, or that the legislature had created such a right. Wife has provided no authority that compels this court to recognize a right to trial by jury for purposes of setting a fair market value on the real estate sold at the sheriffs sale.

Wife next argues that the trial court abused its discretion in determining that the property sale price was adequate. As noted above, before the delivery of the sheriffs deed to real property, the court may, upon the petition of any party in interest and upon a showing of proper cause, set aside the execution sale and order a resale. See Pa.R.C.P. 3132, supra; Goodrich-Amram 2d § 3132:1. The price at which the property is sold at the execution sale may constitute proper cause for setting aside the sale. Goodrich-Amram 2d § 3132:8. Keeping in mind our abuse of discretion standard, Pierson, supra; Frank, supra; Gordon, supra, mere inadequacy of the sale price of real estate is not sufficient to set aside a sheriffs sale. Pierson, 437 Pa. at 544, 264 A.2d at 684; Frank, 343 Pa.Super. at 485, 495 A.2d at 569. Rather, it has long been established that “gross inadequacy” of price is the basis for setting aside such a sale. Frank at 484, 495 A.2d at 568.

Wife complains that the sale price of $375,000.00 was grossly inadequate when compared to her appraiser’s valuation of the seven parcels, which was $657,000.00. We recognize the rather large disparity between the sale price and Wife’s appraiser’s valuation price, however, the sale price is clearly in line with the $365,000.00 value assigned by Nicholas’s appraiser. Thus, the sale price here is within a reasonable, acceptable range as established by the evidence before the trial court. As such, we find no abuse of discretion on the part of the trial court in finding that the price realized at the sheriffs sale was not grossly inadequate when compared to its purported value. Frank, supra. The sale price, when compared with Nicholas’s appraiser’s valuation, certainly does not “shock the conscience.” Shephard, supra; Miller, supra.

Had the court not been presented with evidence other than that given by Wife’s appraiser, a different result may have been warranted; however, given the fact that an acceptable range had been established when both parties’ evidence was considered, the sale price was not so grossly inadequate as to be set aside. See Miners National Bank of Wilkes-Barre v. Bowman, 334 Pa. 534, 6 A.2d 286 (1939) (refusal to set aside execution of sale on ground of inadequate consideration was not abuse of discretion where property worth $10,000.00 was sold for taxes and costs in the amount of $2,250.19 and debtor was obligated to purchaser for amounts under mortgage on property and judgments, especially where debtor made no effort to obtain bidders at sale); J.B. Van Sciver Co. v. Smith, 328 Pa.Super. 487, 477 A.2d 550 (1984) (real estate assessed for tax purposes at $8,700.00 and sold for $6,300.00 at sheriffs sale would not be set aside on grounds that price was grossly inadequate, despite owner’s contention that the property was worth three times the assessed valuation); cf. Capozzi v. Antonoplos, 414 Pa. 565, 201 A.2d 420 (1964) (evidence sustaining finding that $58.30 paid at sheriffs sale for stock asserted by judgment debtor to be worth at least $20,000.00 was grossly inadequate).

In her final issue on appeal, Wife argues that her interest in the property, by virtue of her marriage, gives her status as a “lien holder” and entitles her to distribution from the proceeds of the sheriffs sale. Pennsylvania Rule of Civil Procedure 3136(c) specifies that the sheriff is to attach to the proposed schedule of distribution a list of liens on the real estate subject to execution. The sheriff then makes distribution in accordance with the prepared schedule. Pa.R.C.P. 3136(d), 42 Pa.C.S.A.

While we do not dispute Wife’s ownership interest in the real estate, such ownership interest is not considered to be a lien on the property subject to distribution pursuant to Rule 3136, supra. “As commonly understood, a lien is a charge upon property by which a lien creditor has the right to execute on that property in order to satisfy a debt or other obligation.” Unity Savings Assoc, v. American Urban Sciences, 337 Pa.Super. 470, 474, 487 A.2d 356, 358 (1984). Wife is not a lien creditor. She does not have the right to execute on the property in question; in fact, quite the opposite — her rights must yield to those held by Nicholas, as discussed below. See also Atlantic Finance Corp. v. Kester, 156Pa.Super. 128, 136, 39 A.2d 740, 744 (1944) (one cannot own an article and at the same time have a lien upon it).

The facts of the instant case are analogous to those in Kronz v. Kronz, 393 Pa.Super. 227, 574 A.2d 91 (1990). In Kronz, the husband and wife had obtained a loan secured by a first mortgage on commercial real estate titled jointly. The couple separated shortly thereafter. The mortgage went into default and the lender instituted foreclosure proceedings and recovered a judgment against both husband and wife. The property was scheduled for a sheriffs sale and wife requested that the matrimonial court enjoin the sale. The trial court did so and the Superior Court reversed. This court found that the trial court abused its discretion in enjoining the execution on the mortgaged real estate, reasoning that:

[T]he Divorce Code has not vested in matrimonial courts the power to alter the rights of creditors who are secured by liens on real estate owned by husband and wife as tenants by the entireties... ^
Hs Hs H* H* H« Hs
A court abuses its discretion if, by its order, it impairs the collateral security which a creditor has contracted for in a loan transaction. Here, husband and wife borrowed money and agreed that they would be jointly and severally liable for the repayment thereof. As security for their agreement to repay moneys borrowed, husband and wife created a mortgage interest in favor of the bank in jointly owned commercial real estate. The rights of the mortgagee bank in this real estate were contractual; they did not depend upon a continuing marriage of the mortgagors or upon distribution of the real estate between them upon divorce.

Id. at 233, 234, 574 A.2d at 94, 95 (emphasis added).

Here, Wife admitted signing an Agreement of Guarantee and Suretyship with Bank. When all of the loans and mortgage went into default in 1990, Nicholas purchased all notes for value, at which time they were assigned to him. After several hearings, the trial court found that Nicholas was a bona fide purchaser who stood in the shoes of the Bank. See Order dated March 4, 1992. Using the reasoning set forth in Kronz, the trial court did not have the authority to prevent Nicholas, as a secured creditor, from executing on the marital property of Husband and Wife.

For these reasons, the trial court was correct in denying Wife’s exceptions to the proposed schedule of distribution. Wife’s ownership interest could not constitute a lien for purposes of Rule 3136, supra, nor could the ownership interest be used to alter Nicholas’s right as a secured creditor. Kronz, supra.

In light of the foregoing, we affirm the trial court’s order.

Order affirmed.

      . It is undisputed that the property subject to execution was marital property. See 23 Pa.C.S.A. § 3501(b) ("All real ... property acquired by either party during the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership....”).


author: POPOVICH, Judge:

text:
    632 A.2d 570
    COMMONWEALTH of Pennsylvania, Appellee, v. Walter D. MATTHEWS A/K/A Prise Lin Matthews, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 14, 1993.
    Filed Oct. 22, 1993.

      Mitchell A. Kaufman, Pittsburgh, for appellant.
    Kevin F. McCarthy, Asst. Dist. Atty., Pittsburgh, for the Com., appellee.
    Before KELLY, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Allegheny County, following appellant’s conviction on charges of receiving stolen property and driving while under suspension or revocation. Appellant questions whether the evidence was sufficient to sustain his conviction for receiving stolen property. Upon review, we find that the evidence was not sufficient to support his conviction for receiving stolen property. Accordingly, we vacate his judgment of sentence as to that charge.

“The test of the sufficiency of the evidence in a criminal case is whether, viewing the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth’s favor, there is sufficient evidence to enable the trier of fact to find every element of the [crime] charged beyond a reasonable doubt.” Commonwealth v. Carter, 329 Pa.Super. 490, 495-496, 478 A.2d 1286, 1288 (1984); Commonwealth v. Peduzzi 338 Pa.Super. 551, 555, 488 A.2d 29, 31-32 (1985). Applying that standard, the record reveals the following facts: On January 9, 1992, William Murphy discovered that his home had been burglarized. Among the items taken from his home were the keys to his 1984 Dodge Aries automobile. The car had also been stolen.

On January 13, 1992, at approximately 2:00 a.m., Pittsburgh Police Officer David Bush spotted appellant driving the stolen car and directed appellant to stop the car. Appellant pulled the car to the side of the road. Officer Bush then asked appellant to produce his driver’s license and owner’s registration. Appellant was unable to produce either. The officer then informed appellant that the vehicle had been reported stolen, and appellant seemed surprised by that information. N.T., 8/3/92, p. 17. Appellant told the officer that he obtained the car earlier that evening from “Chuck” at Walsh’s Bar in East Liberty in exchange for two “rocks” of crack cocaine.

At trial, appellant testified that he had rented the car from Charles Lewis in exchange for two “rocks” of crack cocaine which cost $35.00. Appellant stated that he had seen Lewis with the car the day before. Appellant decided to rent the car rather than hire a jitney. He testified that he needed the car to travel to Penn Hill in order to perform a plumbing job at the home of Edward Thorton, and, at the time he was stopped by Officer Bush, he was on his way to return the car to Charles Lewis.

Although appellant did not present any testimony from Charles Lewis or Edward Thorton, the Commonwealth did not offer any rebuttal of appellant’s testimony. It is undisputed that the vehicle showed no physical manifestations of theft, such as signs of forced entry, broken ignition system or obliterated vehicle identification number.

The crime of receiving stolen property is defined as follows: “A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another ■knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.” 18 Pa.C.S.A. § 3925. In order to obtain a conviction for receiving stolen property, the Commonwealth must prove beyond a reasonable doubt that the property was stolen, the defendant was in possession of the property and the defendant knew the property was stolen or had reason to believe the property was stolen. Commonwealth v. Stafford, 424 Pa.Super. 591, 597, 623 A.2d 838, 841 (1993) (en banc) (collecting cases).

Thus, the question before us is whether the Commonwealth established the necessary mens rea, i.e., whether appellant knew or had reason to believe the property was stolen. A permissible inference of guilty knowledge may be drawn from the unexplained possession of recently stolen goods without infringing upon an accused’s right of due process or his right against self-incrimination. Commonwealth v. Williams, 468 Pa. 357, 357, 362 A.2d 244, 248-249 (1976). See also, Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973). However, the mere possession of stolen property is insufficient to permit an inference of guilty knowledge; there must be additional evidence, circumstantial or direct, which would indicate that the defendant knew or had reason to know that the property was stolen. Williams, 468 Pa. at 365-366, 362 A.2d at 248, n. 7.

Instantly, the Commonwealth established that appellant was in possession of a vehicle stolen three days earlier. However, appellant testified that he rented the vehicle from Charles Lewis for two “rocks” of crack cocaine with a value of $35.00. He further testified that he rented the car to travel to Penn Hills to perform a plumbing job at the home of Edward Thorton and that he was on his way to return the car when the officer stopped him. While appellant did not present the testimony of either Lewis or Thorton, the Commonwealth did not offer any evidence which contradicted appellant’s testimony. Moreover, the evidence revealed that appellant was cooperative with the officer, and, most significantly, the automobile did not display any physical signs that it had been stolen.

The facts of this case are almost identical to those of Commonwealth v. Henderson, 451 Pa. 452, 304 A.2d 154 (1973). In Henderson, the defendant was arrested when a police officer observed him driving a vehicle which had been stolen three weeks earlier. The defendant was not able to produce a valid owner’s card. He explained that he had borrowed the car from a person he met earlier in that day named “Richard”. The car did not show any signs that it had been stolen. Therein, our Supreme Court found that the evidence was insufficient to establish the necessary mens rea. The Court noted that except for the fact that the car was stolen there was “little else to support an inference that the defendant had reason to know or knew that the car and plate were stole.” Henderson, 451 Pa. at 457, 304 A.2d at 157.

Many other cases where the evidence was found to be insufficient present similar facts to those before us, including Commonwealth v. Grant, 235 Pa.Super. 357, 341 A.2d 511 (1975) (accused who was driving stolen car which had no physical manifestation of theft claimed he borrowed car from an acquaintance; evidence was insufficient to sustain conviction for receiving stolen property); Commonwealth v. Stufflet, 291 Pa.Super. 516, 436 A.2d 235 (1981) (accused was driving stolen car with no physical manifestation of theft claimed the car was his; evidence was insufficient to sustain conviction for receiving stolen property); Commonwealth v. Williams, 284 Pa.Super. 244, 425 A.2d 795 (1981) (accused driving stolen vehicle with no physical manifestation of theft stopped to ask police for directions; evidence was insufficient to sustain conviction for receiving stolen property). The present case is not similar to those cases where the condition of the vehicle clearly indicated that it had been stolen or where the actions of the accused support the inference that he knew the vehicle was stolen. See, Commonwealth v. Murray, 246 Pa.Super. 422, 371 A.2d 910 (1977) (car driven without ignition key and ignition wires pulled down; accused attempted to flee;when approached by police); Williams, 468 Pa. 357, 362 A.2d 244 (accused attempted to flee scene and offered no explanation for .his possession of stolen vehicle).

In sum, we find that the evidence presented by the Commonwealth was insufficient to establish that appellant knew or had reason to believe that the vehicle in question had been stolen. Appellant was cooperative with the police; the car showed no physical signs that it had been stolen; and, appellant offered an explanation for his possession of the vehicle at trial which was consistent with his statement to police at the time of his arrest. Accordingly, we vacate appellant’s judgment of sentence for receiving stolen property.

Judgment of sentence vacated.

      . We note that appellant has not appealed his judgment of sentence for driving while under suspension or revocation.

      . We recognize that the holding of Henderson, supra, has been modified by that of Williams, supra, since it is now permissible to infer guilty knowledge by the unexplained possession of a recently stolen vehicle. However, we do not find that Williams, supra, mandates that we affirm appellant's conviction. In Williams, supra, the defendant attempted to flee from police and offered no explanation for his possession of the vehicle. Thus, in Williams, supra, it was entirely appropriate to infer the necessary mens rea. However, presently, appellant was cooperative with authorities, seemed surprised when he was informed that the car was stolen, and explained his possession of the vehicle both upon arrest and at trial.


text:
    632 A.2d 573
    COMMONWEALTH OF PENNSYLVANIA v. Antonio GENTILE, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 31, 1993.
    Filed Oct. 20, 1993.
    Jerome Deriso, Pittsburgh, for appellant.
    Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

      Before ROWLEY, President Judge, and WIEAND and CIRILLO, JJ.
   WIEAND, Judge:

Antonio Gentile was tried non-jury and was found guilty of unlawful gambling and criminal conspiracy. Post-trial motions were denied, and Gentile was sentenced to pay a fíne of five thousand ($5,000.00) dollars and serve an aggregate term of probation for two and one-half (2]é) years. On direct appeal from the judgment of sentence, Gentile asserts that the suppression court erred by refusing to suppress evidence seized by police in a search conducted during nighttime hours, when the warrant authorizing the search, by its terms, authorized only a daytime search. After careful review, we affirm the judgment of sentence.

In reviewing the denial of a defendant’s motion to suppress evidence, this Court will

consider only the evidence presented by the prosecution, and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record for the suppression court’s findings, we are bound thereby and may reverse only if the legal conclusions drawn from those facts are in error.

Commonwealth v. Pestinikas, 421 Pa.Super. 371, 390, 617 A.2d 1339, 1349 (1992) (en banc). Determinations of credibility of witnesses, as well as the weight placed upon their testimony, is exclusively [within] the province of the suppression court.” Commonwealth v. Rogers, 419 Pa.Super. 122,137, 615 A.2d 55, 62 (1992).

The facts in the instant case are that, on May 17, 1991, Sergeant William Thomas of the Pittsburgh Police Department presented an application for a search warrant to the Honorable Robert Dauer, seeking authorization from the court to search the second floor of premises located at 4800 Penn Avenue and occupied by appellant and Harry Stein. The warrant was sought on the basis of information that appellant and Stein were there running an illegal gambling operation. The application for search warrant specifically requested a nighttime search. In support of this request, the affidavit of probable cause recited that the gambling activities at the premises started late in the evening, with most of the players arriving after 11:00 p.m. Nevertheless, the warrant which was issued by Judge Dauer specifically authorized a daytime search. Testimony at the suppression hearing by Sergeant Thomas indicated that he inadvertently had completed the wrong pre-printed section of the search warrant by filling in the date in the section provided for daytime searches, rather than in the section provided for nighttime searches. The warrant was issued by Judge Dauer on May 17, 1991 and was executed by police at 12:30 a.m. on May 18, 1991.

The suppression court specifically found that the search had not occurred within the hours specified in the warrant, but nevertheless refused to suppress the evidence seized on grounds that suppression was not an appropriate remedy for a violation of the rules of criminal procedure governing nighttime searches. The court reasoned as follows:

SEARCH WARRANT
COMMONWEALTH OF PENNSYLVANIA COUNTY OF ALLEGHENY SS: CITY OF PITTSBURGH
TO LAW ENFORCEMENT OFFICER: WILLIAM THOMAS WHEREAS, facts have been sworn to or affirmed before me by written affidavits) hereto from which I have found probable cause, I do authorize you to search the following described premises or person: 4800 PENN AVE. WHICH IS A TWO STORY RED BRICK BUILDING FIRST FLOOR OCCUPIED BY RIEMERS LIMOUSINE SERVICE A BLUE DOOR ON PENN AVE. SIDE LEADING TO THE SECOND FLOOR, SECOND FLOOR TO BE SEARCHED
and to seize, secure, inventory, and to make return according to the Pennsylvania Rules of Criminal Procedure, the following items:
GAMBLING DEVICES TO INCLUDE DICE, CARD, MONIES, CHIPS, RECORDS, AND INDICA
COMPLETE ONLY This warrant should be served as soon as practicable, but FOR DAYTIME in no event later than MAY 19 1991. and may be served SEARCHES only during the daytime hours of 6:00 a.m. to 10:00 p.m. COMPLETE ONLY This warrant should be served as soon as practicable, but FOR NIGHTTIME in no event later than _ 19__and may be SEARCHES served at any time during the day or night. CITY OF PITTSBURGH Issued under my hand this 17th day of May MAGISTRATE 1991 at_ 11:20 A.M. o’clock, a.m./p.m. PUBLIC SAFETY BUILDING PITTSBURGH, PA. 15219
SEAL (Time of issuance must be specified).
/s/ Robert E. Dauer
Signature of issuing authority
The rule itself does not provide for suppression as a sanction. We are, therefore, left with the question of whether the search was so unreasonable as to violate the defendants’ constitutional rights. We find in this case that it was not for the following reasons:
(1) The affidavit of probable cause supporting the application for the search warrant indicates that the alleged gambling starts in the late evening and that most of the players arrive after 11:00 p.m.
(2) In the affidavit supporting [the] warrant, the petitioner requests a nighttime search;
(3) Judge Dauer’s initials appear immediately under the paragraph requesting a nighttime search;
(4) The block on the face of the application indicating that a nighttime search is requested is checked.
(5) Sgt. William Thomas of the Pittsburgh Police Department testified that the warrant limited the search to daytime hours contrary to the specific request for a nighttime search because he inadvertently completed the wrong preprinted section of the warrant. While the Commonwealth is bound by the specific language of the warrant, the court finds that it is proper to consider the officer’s testimony in determining whether the violation of the daytime search provision is so unreasonable as to require suppression.
For these reasons, the court concludes that the search ■ occurring shortly after midnight in this matter was not so unreasonable as to violate the defendants’ constitutional rights and warrant suppression.

Pa.R.Crim.P. 2003, which sets forth the requirements for issuance of a search warrant, provides, in pertinent part, that “[n]o search warrant shall authorize a nighttime search unless the affidavits show reasonable cause for such nighttime search.” Pa.R.Crim.P. 2003(c). The Comment to Rule 2003(c) states:

(c) This section imposes a new requirement in Pennsylvania practice. The requirement of a showing of reasonable cause for a nighttime search highlights the traditional doctrine that nighttime intrusion into a citizen’s privacy requires greater justification than an intrusion during normal business hours.

“ ‘Reasonable cause’ for a nighttime search, as distinguished from probable cause to search, means reasons why the search cannot wait until morning.” Commonwealth v. Mourar, 332 Pa.Super. 258, 261, 481 A.2d 352, 353 (1984). See also: Commonwealth v. Baldwin, 253 Pa.Super. 1, 384 A.2d 945 (1978). With respect to nighttime searches, Pa.R.Crim.P. 2005(e) provides further as follows:

Rule 2005. Contents of Search Warrant
Each search warrant shall be signed and sealed by the issuing authority and shall:
(e) Direct that the warrant be served in the daytime unless otherwise authorized on the warrant, PROVIDED THAT, for purposes of the Rules of Chapter 2000, the term “daytime” shall be used to mean the hours of 6 a.m. to 10 p.m.

Pa.R.Crim.P. 2005(e).

In Commonwealth v. Mason, 507 Pa. 396, 490 A.2d 421 (1985), the Supreme Court “rejected] the automatic application of the exclusionary rule to suppress evidence seized pursuant to a search which in some way violates the Pennsylvania Rules of Criminal Procedure relating to the issuance and execution of search warrants.” Id. at 401, 490 A.2d at 423. Instead, the Supreme Court declared that:

[Ejxclusion/suppression of evidence is not an appropriate remedy for every violation of the Pennsylvania Rules of Criminal Procedure concerning searches and seizures. It is only where the violation also implicates fundamental, constitutional concerns, is conducted in bad-faith or has substantially prejudiced the defendant that exclusion may be an appropriate remedy.

Id. at 406-407, 490 A.2d at 426. See also: Commonwealth v. Musi, 486 Pa. 102, 115-116, 404 A.2d 378, 384-385 (1979).

Both the Supreme and Superior Courts have held that suppression of evidence is not mandated where a violation of the rules of criminal procedure governing nighttime searches has occurred. In Commonwealth v. Johnson, 315 Pa.Super. 579, 462 A.2d 743 (1983), the Superior Court determined that a warrant authorizing a nighttime search had violated Pa. R.Crim.P. 2003(c) because the affidavit of probable cause failed to establish reasonable cause to justify a nighttime search. The Court held, however, that a violation of Rule 2003(c) did not per se require suppression of the evidence seized by police. In so holding, the Court reasoned as follows:

[W]hile there is no direct authority regarding the proper remedy to be applied for a violation of Pa.R.Crim.P. 2003(c), our review of those decisions which have considered sanctions to be imposed for analogous violations of the procedural rules lead us to conclude the following: Where a rule represents a codification of Fourth Amendment requirements, e.g., the knock and announce rule, its violation will result in exclusion of evidence. Where, hqwever, the rule goes beyond the requirements of the Fourth Amendment, e.g., verification of inventory rule or rule requiring police to leave a copy of the search warrant and affidavit, its violation will not result in suppression unless (1) there is a particular rule mandating suppression, or (2) the defendant’s constitutional rights have been otherwise violated. We agree with Judge Spaeth’s dissent in Commonwealth v. Ehredt [255 Pa.Super. 84, 386 A.2d 147 (1978) ], supra, which concludes that a violation of Pa.R.Crim.P. 2003(c) fits into the latter category. In our opinion, that rule represents merely the showing which must be made before a nighttime search may be conducted and does not derive from the Fourth Amendment. A technical failure to comply with the rule, therefore, will not result in the exclusion of evidence seized absent a showing that the defendant’s constitutional rights have been otherwise violated by the search.

Id. at 588-589, 462 A.2d at 748 (footnotes omitted). See also: Commonwealth v. Mourar, supra; Commonwealth v. Cason, 328 Pa.Super. 326, 476 A.2d 1353 (1984).

A similar result was reached by the Supreme Court in Commonwealth v. Young, 524 Pa. 373, 572 A.2d 1217 (1990), where a violation of Pa.R.Crim.P. 2005(e) was found not to constitute a basis for the suppression of evidence seized during execution of a search warrant which had been improperly served at night. The Young Court reasoned as follows:

The appellant also contests the legality of this search warrant because it was served at 4:50 a.m. The appellant relies upon Pa.R.Crim.P. 2005(e) for exclusion of the evidence obtained because that rule specifically requires a search warrant be served between 6 a.m. and 10 p.m. Under this rule, searches may be conducted outside the time frame provided, when authorized by the issuing body. Thus this deviation must be considered technical since it has not been alleged such authorization, if requested, would not have been granted. Nor has appellant shown how he was disadvantaged as a result of this violation. A technical violation alone should not justify exclusion of such evidence. See, Commonwealth v. Johnson, 315 Pa.Super. 579, 462 A.2d 743 (1983); Commonwealth v. Mourar, 332 Pa.Super. 258, 481 A.2d 352 (1984). Without the implication of a constitutional right such a violation must be considered harmless error. Commonwealth v. Revtai, 516 Pa. 53, 532 A.2d 1 (1987); Commonwealth v. Mason, 507 Pa. 396, 490 A.2d 421 (1985).

Id. at 387-388, 572 A.2d at 1224 (footnote omitted).

Applying the rationale of the foregoing decisions of the Supreme and Superior Courts, it seems clear that the suppression court did not err by refusing to suppress the evidence of illegal gambling activities seized by police from the premises occupied by appellant and his co-defendant. Although the warrant issued by Judge Dauer authorized a search only during daytime hours, it is clear that the police had requested and had set forth reasonable grounds for the issuance of a nighttime warrant. Moreover, the issuance of a daytime, rather than a nighttime, search warrant was the result of inadvertence on the part of the police officer, rather than a determination by the issuing authority that a nighttime search warrant was not justified under the circumstances. We conclude, under these circumstances, that the violation of procedural rules which occurred in this case did not implicate any constitutional rights. Appellant failed to demonstrate anything more than an inadvertent and technical violation of the rules adopted by the Supreme Court for the issuance and execution of search warrants in this Commonwealth.

The judgment of sentence is affirmed.

      . Gentile was tried jointly with his co-conspirator, Harry James Stein. Stein, who was also convicted of gambling and conspiracy, has appealed to this Court at J. A36020/93; No. 1534 Pittsburgh, 1992.

      . The search warrant issued in this case appears as follows:


author: POPOVICH, Judge: OLSZEWSKI, Judge,

text:
    632 A.2d 577
    In re C.E.H., D.B.P., K.L.P. Appeal of MARY ANN H. In re D.B.P., K.L.P. Appeal of BARRY P., Natural Father.
    Superior Court of Pennsylvania.
    Submitted Aug. 23, 1993.
    Filed Oct. 22, 1993.

      Jay Stillman, Asst. Public Defender, Williamsport, for Mary Ann H., appellant.
    James R. Protasio, Williamsport, for Barry P., appellant. Ralph W. Thorne, Williamsport, for appellee.

      Charles F. Greevy, III, Williamsport, for Lycoming County Children & Youth Services, participating party.
    Before OLSZEWSKI, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal from a decree entered in the Orphans’ Division of the Court of Common Pleas of Lycoming County terminating the parental rights of Mary H., the natural mother, and Barry P., the natural father. We affirm.

Mary H. and Michael Boutwell are the natural parents of Chad H. Appellants, Mary H. and Barry P., are the natural parents of Damien P. and Kassandra P. On February 3, 4, and 5, 1992, hearings were held on the petitions filed by Children and Youth Services (hereinafter “CYS”) to terminate involuntarily appellants’ parental rights with respect to Chad H. , Damien P., and Kassandra P. Following the hearings, the trial court ruled that CYS had established by clear and convincing evidence the grounds for involuntary termination of parental rights set forth in 23 Pa.C.S.A. § 2511(a)(2) and (a)(5). The trial court entered a decree nisi terminating the parental rights of Mary H. and Barry P. On December 4, 1992, the trial court dismissed appellants’ exceptions to each decree nisi. The trial court entered a final decree terminating appellants’ parental rights. Thereafter, Mary H. and Barry P. each filed a timely appeal from the final decree.

(a) General rule. — The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continued to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

In reviewing an involuntary termination of parental rights, we must review the record to determine whether the Orphans’ Court decree is supported by competent evidence. In re Matsock, 416 Pa.Super. 520, 611 A.2d 737, 742 (1992). We will not reverse the decision of the Orphans’ Court to terminate parental rights absent an abuse of discretion, an error of law, or insufficient evidentiary support for the findings of the Orphans’ Court. In re Shives, 363 Pa.Super. 225, 228-229, 525 A.2d 801, 802 (1987). “An abuse of discretion is ‘not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record, discretion is abused.’ ” In re Matsock, 611 A.2d at 742, quoting, Mielcuszny et ux. v. Rosol, 317 Pa. 91, 93,176 A. 236, 237 (1934).

The record reveals CYS’s history with Mary H. and Barry P. On December 11, 1985, Mary H. gave birth to Chad H. At that time, Mary H. was residing with her maternal grandmother. Mary H.’s grandmother provided the primary care for Chad H. In April of 1986, Mary H. moved in with a friend, Janet Yoder. Ms. Yoder cared for Chad H. while Mary H. resided in her home. On April 29, 1986, Mary H. voluntarily contacted CYS, and CYS provided protective supervision, a parent-partner and ongoing PACT Program participation.

Mary H. and Chad H. then moved in with Mary H.’s brother and his wife. The parent-partner, Dixie Halderman, worked with Mary H. and Chad H. while they resided with George H. and Linda H. Linda H. provided the primary care for Chad H. during this period.

Mary H. began a relationship with Barry P. in May of 1986. On July 15, 1986, Mary H. signed an agreement giving primary physical and legal custody to George H. and Linda H. Chad H. remained with George H. and Linda H. until March 4, 1987, when he was returned to Mary H., who was then living with Barry P.

The parent-partner, Dixie Halderman, continued to work with Mary H. and Chad H. Ms. Halderman testified that Mary H. was indifferent to Chad H. and was rough when handling him. N.T., February 3,1992, at 71, 75. Ms. Halderman testified further that Mary H. became angry and frustrated easily when working with CYS and the PACT participants. Id. at 77. CYS recommended that Mary H. and Barry P. receive counseling because Mary H. and Barry P. had physical confrontations. Mary H. and Barry P. made little effort to work on these problems.

On August 15, 1988, Damien P. was born, and thereafter, Mary H. refused to accept CYS’s services on a voluntary basis. On September 4, 1988, CYS closed their involvement with Mary H. and her family. In November of 1988, Damien P. was hospitalized for failure to thrive, and in December of 1988, custody of Damien P. was placed with CYS. Although Chad H. and Damien P. were both adjudicated dependent, Chad H. remained with his mother, while Damien P. was placed in foster care.

On March 29, 1989, a disposition review hearing was held, and the court ruled that Mary H. and Barry P. had failed to meet the goals set by CYS concerning the medical care and home environment for Chad H. The court ordered that Damien P. should remain in foster care and Chad H. could remain at home with Mary H. and Barry P. On September 1, 1989, Chad H. was placed in a foster home pursuant to an emergency court order because the condition of the home of Mary H. and Barry P. was deplorable. Following a review hearing on November 8, 1989, CYS recommended long term placement in foster care.

In December of 1989, Mary H. and Barry P. made progress on correcting the problems in their home, and Chad H. was returned to Mary H. on December 21, 1989. From December of 1989 until April of 1990, Mary H. and Barry P. completed goals set by CYS, and on April 11, 1990, Damien P. was returned to his parents.

On May 1, 1990, Kassandra P. was born, and both mother and daughter were healthy at that time. Parent-partner, Fran Stiber, worked with the family and noted progress made by the parents following the birth of Kassandra P. On July 16, 1990, Mary H. reported to the parent-partner that Kassandra P. had a black right eye. Kassandra P. was taken to a hospital and it was determined that she had suffered a bilateral skull fracture, and subdural hematoma which had occurred two to five days prior to admission of Kassandra P. to the hospital. Mary H. gave various explanations for the injuries suffered by Kassandra P. Mary H. finally admitted that she picked up the baby by the head, squeezed her and shook her until Kassandra P. slipped out of Mary H.’s hands. Kassandra P. then hit a stand and fell to the floor. The incident occurred two days before Mary H. reported it to the parent-partner. On January 23, 1992, Mary H. pleaded guilty to recklessly endangering and causing aggravated assault to her child. Barry P. pleaded “no contest” to charges of endangering the welfare of a child in relation to the injuries suffered by Kassandra P.

As a result of Mary H.’s abuse of Kassandra P., all three children were placed in the emergency custody of CYS on July 17, 1990. Thereafter, CYS filed a petition seeking the termination of the parental rights of Mary H. and Barry P.

Appellants’ sole argument on appeal is that the evidence was insufficient to establish that the conditions which led to the placement of the children would not or could not be remedied within a reasonable period of time with the provision of reasonably available services. Appellants contend that the progress made in the six month period prior to the removal of the children shows that the conditions which led to the placement of the children could be remedied. Additionally, appellants argue that the agency made only a “token” effort to help Mary H. and Barry P. to correct the conditions which led to the placement of the children. ¡

The record shows that appellants had a long history of problems caring for their children. Despite the services offered by CYS, Mary H. and Barry P. were unable to provide their children with adequate care or maintain a clean and healthy environment for their , children. Although appellants made progress during a period in 1990, the children were home for only three months when the severe physical abuse of one child led to the emergency removal of all the children.

Ann O’Brian, a caseworker for CYS, testified about the basis for CYS seeking termination of Mary H.’s and Barry P.’s parental rights. N.T., February 5, 1992, at 187. The first factor that CYS considered was the serious injury to Kassandra'P. Id. Secondly, Damien P. had lived all but six months of his life in foster care, and CYS recommends that when a child has been in foster care for more than a year, it should be determined whether the child’s parents will be able to fulfill their parental obligations to the child. Id. at 187-188. Finally, Ms. O’Brian testified that Mary H. was unable to care for any of her children when they were infants. She further noted that “with each subsequent child the abuse became more severe, more profound, and more life threatening, and based on those factors [CYS] recommended that termination be sought.” Id. at 188.

Following the placement of the three children, a caseworker and a parent-partner visited Mary H. and Barry P. at their home. N.T., February 5, 1992, at 180. Fran Stiber, the parent-partner testified that Mary H. and Barry P. were too busy to work with her on their home environment. N.T., February 3,1992, at 104. Additionally, Mary H. and Barry P. had supervised visits with their children at CYS. Id. Ann O’Brian testified that she supervised these visits and based on her observations she did not believe that Mary H. would be able to care for her children on a full time basis. N.T., February 5, 1992, at 190. After charges were filed against Mary H. and Barry P. for causing Kassandra P.’s injury, Mary H. and Barry P. were not allowed to have any contact with Kassandra P. Id. at 185. Barry P. was also convicted of sexually abusing his niece and was ordered to have no contact with any minor children. N.T., February 5, 1992, at 193.

After reviewing the testimony, we disagree with appellants allegation that CYS made only a “token” effort to help Mary H. and Barry P. correct the conditions that led to the placement of their children. CYS continued to offer services to Mary H. and Barry P. However, Mary H. and Barry P. failed to work with the case-worker and the parent-partner in improving the environment of their home. Mary H. and Barry P. also had problems interacting with the children during visits. N.T., February 3, 1992, at 104-112; N.T., February 5, 1992, at 181, 183-84, 190. CYS attempted to help Mary H. and Barry P. with their family over the course of several years but Mary H. and Barry P. were unable to provide a healthy environment for their children and did not properly care for the children. Therefore, we will not disturb the ruling of trial court.

Final decree affirmed.

OLSZEWSKI, J., files a concurring opinion.

OLSZEWSKI, Judge,

concurring:

I wholeheartedly agree with my colleagues that appellants’ parental rights have been properly terminated in this case. I write separately to note that not only is our decision well supported by the facts of this case, but also by a considerable body of social scientific evidence. See David J. Herring, Inclusion of the Reasonable Efforts Requirement in Termination of Parental Rights Statutes: Punishing the Child for the Failures of the State Child Welfare System, 54 U.Pitt.L.Rev. 139 (1992).

Professor Herring’s article urges agencies such as Children and Youth Services to make efforts to support and rehabilitate parents early on in child welfare cases. All too often, however, children are trapped in long-term foster care while child welfare agencies engage in futile attempts to improve the familial environment. This delay in terminating parental rights and finding a nurturing, stable, permanent placement for the child tends to stunt the child’s emotional and psychological development. The longer the delay, the greater the harm. Professor Herring therefore argues that requiring child welfare agencies to engage in rehabilitative efforts as a condition precedent to terminating parental rights only punishes the child for failures of the child welfare system.

In the present case, the system has by no means failed appellants; CYS has already made commendable efforts to work with appellants and improve their parenting skills. The inefficacy of these efforts supports the termination of appellants’ parental rights. But our primary concern should be the best interests of the child. In deciding whether CYS has made reasonable efforts, we must consider not only the parents’ amenity to rehabilitation, but also the children’s developmental needs. Chad, Damien and Kassandra’s need for a stable, nurturing environment also militates in favor of a prompt termination of parental rights.

      . Michael Boutwell has not appealed the decree terminating his parental rights with respect to Chad H. Mary H. and Barry P. each appealed the decrees terminating their parental rights. These appeals have been consolidated for our review.

      . Sections 2511(a)(2) and (a)(5) provide the following:

      . PACT stands for Parents and Children Together. N.T., February 3, 1992, at 67.


author: HESTER, Judge:

text:
    632 A.2d 581
    Melvin E. SOLL, Appellant, v. Linda Gwen SOLL.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1993.
    Filed Oct. 29, 1993.

      Kenneth J. Benton, Philadelphia, for appellant.
    Thomas Ganiaris, NJ, for appellee.
    Before WIEAND, CIRILLO and HESTER, JJ.
   HESTER, Judge:

Melvin E. Soil appeals from the November 30, 1992 order entered by the Court of Common Pleas of Montgomery County in this support action. Linda Soil, appellee, originally filed an action for support on October 12, 1973. A support order was entered on October 23, 1974. Subsequently, the parties entered into a separation agreement on July 29, 1980 (hereinafter “separation agreement”), in which, inter alia, they stipulated to a consensual increase in the outstanding support order. Appellant asserts the court erred in directing him to pay arrearages and-current support under penalty of being found in contempt. He maintains that since his children now are in their majority, and the separation agreement represented a complete resolution of all disputes between the parties, the court presently lacks subject matter jurisdiction to invoke its contempt powers and to use them to enforce payment of support under the separation agreement. He argues that appellee’s sole remedy, instead, is to sue him under the separation agreement in civil court. We disagree and affirm.

The record reveals the following. The parties were married on July 20, 1969. Two children were born of the marriage: Jacquelyn, born August 15, 1970, and Michael, born April 2, 1973. Appellant is an attorney admitted in this Commonwealth and owns a business which provides him with a comfortable income. Appellee also worked outside the home. The parties separated as of August 3, 1973. Appellee filed a support action on October 12,1973, and a hearing was held on November 7, 1973. A support order was entered on October 23, 1973, which directed appellant to pay unallocated support in the amount of $100 per week. On April 16,1975, a hearing for non-payment of support was scheduled and continued to May 23, 1975. On that date, the court increased the support order to $150 per week. On March 31, 1980, appellee petitioned for increased support. Appellant filed preliminary objections in which he asserted that appellee had adopted another jurisdiction since she had moved to New Jersey. The master found that jurisdiction in Montgomery County, Pennsylvania, remained valid and had not been divested. He ordered the parties to exchange financial information. Appellant then filed exceptions to this finding which were dismissed.

On July 29, 1980, the parties entered into a separation agreement. It included provisions for custody, equitable distribution in a lump-sum payment, medical expenses, life insurance, payment of college expenses, and religious training. It also stated that the agreement would be incorporated in the pending divorce decree. It did not either mention or preclude merger. Finally, paragraph five or the agreement provided for child support, stating:

Child Support. Husband shall pay the sum of One Hundred Sixty ($160.00) Dollars per week for the support of his two (2) minor children. Husband agrees to execute any and all documents required to increase the present Montgomery County Support Order designated as No. 456 July Term, 1973, from One Hundred Fifty ($150.00) Dollars per week, to One Hundred Sixty ($160) Dollars per week. Husband’s obligation for child support shall continue until the last child completes his college education, if pursued at an accredited institution on a full-time basis, marries or is self-supporting, or is otherwise emancipated, whichever shall first occur.

On August 29, 1980, appellant signed his consent to an increased support order in the amount of $160 per week.

On June 8, 1983, the support order sur civil contempt was transferred to Philadelphia County. On May 30, 1988, the Court of Common Pleas of Philadelphia County entered an order vacating the support order without prejudice to enable its transfer to Louisiana, where appellant had relocated. The Philadelphia Domestic Relations file contains a notation made on June 9, 1988, which indicates that transfer of jurisdiction from Montgomery County for the purpose of transferring the support order to Louisiana was declined since appellant no longer was in Louisiana. On November 8,1988, a judge in the family court in Baton Rouge, Louisiana, dismissed the support order since appellant was not living in that jurisdiction. In November, 1988, appellee had the arrearages reduced to judgment.

On November 6,1991, appellant petitioned for a decrease in support based upon changed circumstances, which he subsequently withdrew. On January 15, 1992, appellant filed a petition in Montgomery County to vacate the August 29, 1980 support order on the basis that the court lacked subject matter jurisdiction. On January .16,1992, the master modified the August 29, 1980 order by ordering appellant to pay $1,500 in arrearages forthwith, as well as current support, or to be held in contempt. On July 21, 1992, the master dismissed appellant’s petition to vacate, and appellant filed exceptions. On November 30, 1992, the trial court dismissed appellant’s exceptions and adopted the master’s order. This timely appeal followed.

Appellant first argues that the trial court erred in dismissing his exceptions in which he contended the court lacked subject matter jurisdiction. He asserts that since the children have attained their majority, the court no longer has jurisdiction over their support. He relies upon the recent decision of our Supreme Court in Blue v. Blue, 532 Pa. 521, 616 A.2d 628 (1992), holding that nothing in the Divorce Code suggests that the Legislature intended to obligate parents to support their children past their majority and compel parents to pay for college education expenses. .

This argument lacks merit. First, in the separation agreement, appellant specifically obligated himself to pay for the college expenses of his children as long as they were enrolled in an accredited, post-secondary institution. This independent contractual obligation continues and is not extinguished by Blue v. Blue, supra. Goss v. Timblin, 424 Pa.Super. 216, 622 A.2d 347 (1993) (specific agreement to pay college costs is contractual obligation interpreted on its own terms and is not invalid under the Blue decision).

Moreover, by Act 62, approved July 2,1993, our Legislature overruled the holding in Blue. We have noted that this statute specifically was applied to all support orders in effect. See Hecker v. O’Connell, 427 Pa.Super. 608, 629 A.2d 1036 (1993). Since the instant support order was in effect on that date and one of his children was attending college, appellant’s argument that the court no longer has jurisdiction on this basis is incorrect.

Next, appellant asserts the general proposition that the trial court cannot insert language into a comprehensive agreement where the language is clear and unambiguous. Moreover, he contends that absent language permitting merger, the court may not find ambiguity for the purpose of merger and thereby modify the agreement of the parties or use its contempt powers. He argues that the separation agreement is clear and comprehensive since it addressed custody, lump sum equitable distribution, visitation, health and life insurance, legal fees, and religious training. In this context, he claims the child support provision should be regarded as a term of the contract. He thereby infers that the parties intended to substitute the terms of the agreement for the existing support order. Consequently, he argues that only the separation agreement continues to exist, and it is not enforceable through contempt but only as a contract. In support, appellant relies upon Andursky v. Andursky, 382 Pa.Super. 1, 4, 554 A.2d 571, 573 (1989), where we stated:

In Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988)], our Court recently held that an agreement that speaks of incorporation but rejects merger is not enforceable under the Divorce Code. That is, the remedies of attachment of the person and wage attachment are not permissible when the agreement rejects merger. Id.; Dechter v. Kaskey, 379 Pa.Super. 45, 549 A.2d 588, 590 (1988). Such agreements, however, are governed by the law of contract, and are still enforceable in an action in assumpsit or in equity by specific performance although the remedies for enforcement of support orders are not available. Id., 379 Pa.Super. at 496, 549 A.2d at 165.

Finally, he notes lack of jurisdiction cannot be waived and may be asserted at any time. Andursky v. Andursky, supra. Thus, he concludes that he may assert lack of jurisdiction at any time, and appellee’s sole remedy for for non-payment of support is to sue him for breach of contract. Id.

We disagree. First, we previously found that appellant’s obligation for support continues even though his children are in their majority since his daughter currently is attending college. Thus, the support order continues in existence and is enforceable. Second, the case law relied upon by appellant is distinguishable in that the cases cited involve language specifically precluding merger or do not involve incorporation of a support order which remains in existence. We note that it is possible for support agreements and support orders to exist simultaneously, stand apart, and be enforced separately. See Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1980); Madnick v. Madnick, 339 Pa.Super. 130, 488 A.2d 344 (1985).

Instantly, as found by the trial court, the separation agreement expressly stipulates to modification by the court of a prior support order. The parties did not express an intent for the court to vacate the support order and substitute in its place the support provision set forth in the agreement. Indeed, the agreement referred specifically to the case number and term of the support order which it modified. Thus, the support order remained in effect along with continued subject matter jurisdiction.

In these circumstances, we agree with the trial court that the correct procedure is to determine the intent of the parties to the agreement. See D’Huy v. D’Huy, 390 Pa.Super. 509, 568 A.2d 1289 (1990) (where the court rejected the concept that incorporation automatically meant merger but instead was governed by the intent of the parties). We further agree that in the separation agreement, the parties specifically expressed their intent to include the support order as a term of their agreement. This manifested their intent to have the separation agreement governed by the provisions of the Divorce Code. Subsequent to the execution of this agreement, appellant sought to have the court decrease his support until he withdrew his request. Appellee also requested the court to modify support by increasing it. This supports the inference that both parties assumed that the support order remained in effect and could be modified by the court. In addition, since the agreement incorporated a former support order by reference, this infers that the parties understood that the court would retain jurisdiction. Since the order remains in effect, so did the court’s subject matter jurisdiction. Finally, the agreement itself does not reject merger.

For the foregoing reasons, we conclude that the court had jurisdiction to modify and enforce support by its contempt and attachment powers.

Order affirmed.