author: OLSZEWSKI, Judge: TAMILIA, Judge,

text:
    650 A.2d 882
    Anthony SULLIVAN, Appellant, v. Tricia SHAW, Appellee.
    Superior Court of Pennsylvania.
    Submitted July 11, 1994.
    Filed Nov. 14, 1994.

      Anthony Sullivan, pro se.
    Trida Shaw, pro se.
    Before OLSZEWSKI, TAMILIA, and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

Anthony Sullivan is an inmate at the State Correctional Institute in Greensburg, just outside of Pittsburgh. He filed a pro se petition in the Court of Common Pleas of Philadelphia County seeking visitation rights with his daughter, Latifah. The trial court denied the petition because it found that Latifah’s mother has no car and cannot afford to make the trip to Greensburg. It also held that forcing Latifah to travel was not in her best interests. We are constrained to vacate and remand.

Latifah is three years old and was born out-of-wedlock. She resides with her mother in Philadelphia. Although the record does not disclose the nature of Sullivan’s offense, he is eligible for parole in 1998. He began serving his sentence in 1991 at Camp Hill. While he was there, Latifah’s mother took Latifah to visit him at least six times. Now that he has been transferred to Greensburg, however, Latifah’s mother claims that she cannot afford to take Latifah to visit her father. Sullivan then filed this petition, seeking a judicial declaration that he is entitled to visit with Latifah. The trial court scheduled a hearing for July 20, 1993 and ordered that Sullivan be brought to Philadelphia on that date. Sullivan did not appear at the hearing, however, because “the Sheriffs Office did not produce the father, but mother appeared at the hearing.” Trial court opinion at 2. The court then denied Sullivan’s petition in his absence, writing:

In custody and visitation cases, the paramount concern is the best interest of the child. The Court agrees that a determination of where those interests lie can only be made on the basis of a reasonably complete record. Appellant was not brought down to the hearing as Ordered by Judge Tereshko. However, the Court inquired as to the basi[c] ability of the mother to honor a custody order. The Court believes that it is a threshold question for if as here the mother cannot transport the child to the prison and back in a reasonable period of time, to hold an extended hearing would serve no useful purpose.
Even if the mother could financially afford to transport the three year old to this prison, the Court would find that it is not in the child’s best interest to be forced to travel five (5) hours in a vehicle to visit the prisoner for a short period of time and drive five hours home.
The Court believes there is a sufficient record to justify the Court’s decision without the necessity of transporting a prisoner ten (10) hours across the Commonwealth of Pennsylvania.

Trial court opinion at 2-3. Sullivan claims, among other things, that his due process rights were violated by the state’s refusal to take him to the hearing. We disagree, but must nonetheless remand for a fuller hearing.

I.

It is well-established that a parent’s right to have meaningful communication and visitation with his child is a liberty interest protected by the United States Constitution. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Our appellate courts have stated quite clearly that

t has long been against our public policy to limit or destroy the relationship between parent and child.... Every parent has the right to develop a good relationship with the child, and every child has the right to develop a good relationship with both parents.

In re Constance W., 351 Pa.Super. 393, 398, 506 A.2d 405, 408 (1986) (quoting Fatemi v. Fatemi 339 Pa.Super. 590, 597, 489 A.2d 798, 802 (1985)). Thus, “even when sole legal and physical custody is awarded to one parent, Pennsylvania courts scrupulously protect the non-custodial parent’s right to maintain a meaningful parental relationship with his or her child.” Zummo v. Zummo, 394 Pa.Super. 30, 45, 574 A.2d 1130, 1138 (1990).

Since the trial court’s order deprived Sullivan of a protected liberty interest, he had a right to procedural due process, which necessarily includes an opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976). Sullivan argues that he should have been transported across the Commonwealth to attend the visitation hearing in Philadelphia. Since the court system failed to do this, he requests a new hearing where he can be present, or can at least present evidence on his own behalf.

Incarcerated prisoners who petition the court for visitation rights are entitled to a hearing, to notice of this hearing, and to notice of their right to request that they be present at the hearing, by means of a writ of habeas corpus ad testificandum. Vanaman v. Cowgill, 363 Pa.Super. 602, 526 A.2d 1226 (1987). A court need not grant the habeas petition and order the prisoner’s presence, but it may not ignore it either. Rather, the court must weigh the costs of a bring-down against the prisoner’s interests in presenting testimony in person. Salemo v. Salemo, 381 Pa.Super. 632, 634, 554 A.2d 563, 564 (1989) (citing Jerry v. Francisco, 632 F.2d 252 (3d Cir.1980)).

Here, Sullivan had filed a petition for a writ of habeas corpus ad testificandum on July 11, 1993, one day before the original scheduled hearing date. On July 12, Judge Tereshko of the Philadelphia Court of Common Pleas found that there was insufficient time to secure Sullivan’s presence at that hearing, so he ordered that the hearing be rescheduled for July 20, with Sullivan present. When, for no apparent reason, authorities failed to produce Sullivan on July 20, Judge Stephen Levin held the hearing in his absence and denied his petition. The record reveals neither why Judge Tereshko felt that Sullivan’s presence was necessary at the hearing, nor why Sullivan was not brought down as ordered. From the paucity of the record, one might assume that the court below presumed that Sullivan had an absolute right to be present at the hearing. Indeed, a casual reading of Vanaman, supra, conveys this impression.

II.

We question the presumption that bring-down orders should routinely be granted in such cases. “Due process is flexible and calls for such procedural protections as the situation demands.” Mathews, 424 U.S. at 334, 96 S.Ct. at 902. Mathews allows the government to tailor the amount of procedural protection to the situation by balancing the marginal value of additional protections against the marginal costs such additional protections would impose on the government. 424 U.S. at 335, 96 S.Ct. at 903. Prisoners’ claims can be heard without their being removed from prison and physically brought to court. Transporting prisoners across the state imposes a considerable burden upon the Commonwealth. We think this burden will usually outweigh any risk of erroneously depriving prisoners of their legitimate expectations of visitation with their children.

In the present case, Sullivan has not responded to the trial court’s determination that visitation would be impractical and not in Latifah’s best interests. Rather, Sullivan has chosen to press his claim that he must be allowed to get out of his prison cell in Greensburg and be taken to Philadelphia to attend a hearing. We have no idea if Sullivan even has anything to say in response to the trial court’s findings.

We think that a more reasonable approach would be to allow Sullivan to file an informal brief with the trial court where he would offer his solution to the problems of visitation. Perhaps Sullivan could pay for bus tickets and a motel room, or perhaps he has relatives or friends willing to help transport Latifah and her mother across the state. Since frequent ten-hour . round trips would clearly overburden young Latifah, perhaps Sullivan would be willing to propose a reasonable visitation schedule — every few months, or once or twice a year. If Sullivan has anything to offer towards a solution then the trial court could, at its discretion, order that Sullivan be brought down to Philadelphia to work out the details. The trial court could also arrange a visitation plan without having Sullivan brought down, or could dismiss the petition if Sullivan can offer no reasonable means of overcoming the obstacles to visitation.

We think that allowing the trial court to make such a preliminary determination upon the prisoner’s written submission best conserves the Commonwealth’s resources without increasing the risk of erroneous deprivation. As long as prisoners seeking visitation have the opportunity to tell the court how they would marshall their resources to enable visitation, then they have a meaningful opportunity to be heard. Where these resources are most likely lacking, we think that routinely bringing down prisoners to hearings is an exercise in futility. The Commonwealth’s time and money would be better spent on helping arrange and support visitation plans in those cases where visitation has first been shown to be a reasonable and practical option.

III.

Here, however, the trial court did not afford Sullivan even this opportunity to be heard. When Sullivan did not materialize at the hearing, the trial court inquired no further into his absence. The only testimony the court heard was from Latifah’s mother that she lacked the means to drive from Philadelphia to Greensburg. The mother never testified that she did not want to continue visitation with Sullivan or that she thought the trip would be too much for young Latifah; she only stated that she could not make the trip. The trial court decided that this was enough information to determine that Latifah should never make the trip. But the court made this determination without giving Sullivan any opportunity to be heard. Such truncated procedure does not comport with due process.

Indeed, Sullivan requests in his pro se brief that if he is not brought down to Philadelphia, that he at least be given some “opportunity to be heard and to present evidence in his own behalf.” Appellant’s brief at 12. This opportunity could be afforded by allowing Sullivan to submit an informal brief as discussed above. After hearing Sullivan’s side, the trial court could make an informed determination as to whether Sullivan’s presence is necessary at a hearing, or whether a bring-down would serve no useful purpose. In order to best effectuate justice and efficient use of the Commonwealth’s judicial resources, we will vacate both Judge Levin’s order dismissing Sullivan’s petition and also Judge Tereshko’s order requiring his presence at the Philadelphia hearing, and give the parties a chance to start the proceedings anew.

Orders vacated, and case remanded. Jurisdiction is relinquished.

TAMILIA, J., files a dissenting Opinion.

TAMILIA, Judge,

dissenting:

I respectfully but strenuously dissent. I believe the trial court approached this case in the proper sequence, determining first what was in the child’s best interest in assessing the need to proceed further. Once a cogent decision was made that it was not in the child’s best interests to be transported across the state for visitation of limited duration and questionable value, considering the child’s tender age of three years, there was no need to proceed further.

I disagree with the majority that there is a liberty interest which requires appellant’s presence under all circumstances. This presumes that, upon notice, the father is willing and able to be present. It is not uncommon for persons in distant parts of the country, who wish to contest visitation or custody, to be unable to do so personally for lack of funds or available time. Likewise, a parent incarcerated out of state could not expect to be transported to a court in Pennsylvania for a custody or visitation hearing. Undoubtedly, absent any sound basis that would preclude the child’s availability to the father, his right to a hearing to obtain visitation would be enforceable and visitation ordered. However, under these circumstances I believe the trial court must have some leeway to make a predetermination as to the reasonableness of the claim for visitation. What if the child was handicapped or in some manner incapable of long distance travel, or no person was available to transport the child or for any other of a myriad of factually sound reasons visitation was inappropriate? The most striking situation would be the case where a parent had engaged in brutal sexual or physical abuse of the child requiring incarceration of the father. The Custody Act, 23 Pa.C.S. § 5301 et seq., provides explicit directions to consider criminal conduct in determining custody or visitation awards. Among the crimes which are to be considered, including abusive conduct as defined under the Protection From Abuse Act, 23 Pa.C.S. § 6101 et seq., are criminal homicide, kidnapping, unlawful restraint, rape, statutory rape, involuntary deviate sexual intercourse, indecent assault, incest, endangering welfare of children, prostitution and sexual abuse of children, pursuant to section 5303(b). To force the child to endure visitation or to even be present at hearings to test the father’s right, when many of those offenses are implicated, would inflict additional trauma on an already permanently damaged personality. Trial courts should be able to have a predetermination hearing before the process goes further. See Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The incarceration of the father, and his lack of capacity to exercise his rights to the extent of a person not so restrained, must be considered in relationship to the frivolousness of the demand.

Violation of the laws with its resulting confinement subsumes very serious restrictions on the freedom to do many things and to exercise many rights, the least of which is to have a normal relationship with one’s family. If the right to retain that relationship was fundamentally irrevocable, we would require prisons to provide condominium-like resources to enable the family to retain at least a quasi-normal relationship between the inmate and his/her family. Women with children born in prison are separated from them and not all are guaranteed the access that appellant demands here. Nothing could be more important for an appellant incarcerated for murder or any other crime, who elects to defend himself pro se on appeal, than to be present to argue his case in court. This case has been appealed pro se and the appellant is not entitled to be present in court to argue his appeal. Yet we deny this right although the Constitution guarantees every defendant the right to be his own counsel. If the situation were otherwise, the highways and byways of the Commonwealth would be clogged with inmates filing petitions for visitation or regarding other family matters to the extent that the critically burdened sheriffs’ departments and local restraining facilities would face collapse. Prisoners will do anything possible to obtain even a brief respite from the ardors, boredom and pressures of long-term confinement.

The case most frequently cited to clarify due process issues as they relate to state intervention or court and governmental policies relating to hearings and due process is Mathews, supra. The test for purposes of determining the constitutional adequacy of a proceeding in relation to due process generally requires consideration of three distinct factors: 1) the private interest that will be affected by the official action; 2) the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and 3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Another important factor in assessing the impact of official action on the right is the possible length of deprivation of benefits to the individual. While Mathews involved administrative hearings, the circumstances of this case lend themselves to a similar consideration. There, the United States Supreme Court stated:

The judicial model of an evidentiary hearing is neither a required, nor even the most effective method of decision making in all circumstances. The essence of due process is the requirement that ‘a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it.’ All that is necessary is that procedures be tailored, in light of the decision to be made, to ‘the capacities of those who are to be heard,’ to insure that they are given a meaningful opportunity to present their case.

Id. at 348-349, 96 S.Ct. at 909, 47 L.Ed.2d at 41 (citations omitted). This could be accomplished by briefs filed by appellant, as suggested in the majority, and/or appointment of counsel to represent him preliminarily. This process does not rule out subsequent evidentiary hearings and judicial review before the claim becomes final.

The majority cites leading cases which deal with the rights of parents to obtain visitation and custody of their children, all of which are within the context of normal family relationships or in dealings with state agencies attempting to limit the rights of parents who are not incarcerated. The situation of this case is unique and is not within the frame of reference posed in those cases. Indeed, courts in other jurisdictions have considered visitation rights of prisoners and have ruled both ways. See Matter of Marriage of Brewer, 13 Kan.App.2d 44, 760 P.2d 1225 (1988) (visitation denied; father in prison), but see McCurdy v. McCurdy, 173 Ind.App. 437, 363 N.E.2d 1298 (1977) (allowing visitation to a father in prison).

Where it appears that the demand for visitation would unequivocally inflict harm on the child, be impermissible because of the father’s crimes or financially infeasible for the other parent, which can be predetermined in a preliminary proceeding, I believe the demand for presence at a hearing is not one that is invariably required.

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

      . The record also does not disclose why it was necessary to transfer Sullivan to an area which makes visitation with his family difficult. We, of course, cannot question that the transfer was appropriate, but we do wonder whether Sullivan asked the Department of Corrections, through the appropriate procedure, to take his familial circumstances into account in placing him.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    650 A.2d 887
    METROPOLITAN LIFE INSURANCE COMPANY v. LIBERTY CENTER VENTURE v. URBAN REDEVELOPMENT AUTHORITY OF PITTSBURGH and the City of Pittsburgh. Appeal of LIBERTY CENTER VENTURE.
    Superior Court of Pennsylvania.
    Argued Oct. 4, 1994.
    Filed Nov. 23, 1994.

      Marvin A. Fein, Pittsburgh, for appellant.
    Eric A. Schaffer, Pittsburgh, for Metropolitan Life, appellee.
    Before CAVANAUGH, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal from the order of June 15,1993, entered in the Court of Common Pleas of Allegheny County granting the motion for the appointment of a receiver filed by appellee, Metropolitan Life Insurance Company (“MetLife”). Herein, appellant, Liberty Center Venture (“Venture”), contends that the lower court erred in finding that Venture defaulted under the terms of secured payment obligations with MetLife and then improperly allowed for the appointment of a receiver. Upon review, we affirm.

The record reveals that in December of 1986, MetLife and Grant Liberty Development Group Associates (“GLDGA”) created Venture to own and operate a building complex with offices and a hotel located in downtown Pittsburgh. MetLife and GLDGA possessed undivided interests in Venture of 60% and 40% respectively. Additionally, MetLife made a loan to Venture with principal in the amount of $67,000,000.00. Notes were executed to provide for Venture’s repayment obligations. MetLife’s loan to Venture was also secured by a mortgage. The interest payable on the notes for the offices and the hotel was 14)£% and 15% respectively. Further, the terms of the mortgage and security agreement authorized the appointment of a receiver in the event of a default. In September, 1990, Venture began making payments at an interest rate of 10% instead of 14$% and 15%. MetLife refused to accept the payments on the ground that Venture defaulted on its repayment obligations. On March 8, 1991, MetLife instituted a foreclosure action against Venture in the Court of Common Pleas of Allegheny County and sought the appointment of a receiver. Venture maintained that it was not in default because MetLife and GLDGA had agreed to reduce the payments on the notes at an interest rate of 10%.

On October 2,1991, The Honorable Judith L.A. Friedman of the Court of Common Pleas of Allegheny County held a hearing on MetLife’s motion to appoint a receiver. At that time, suit was pending between GLDGA and MetLife in the United States District Court for the Western District of Pennsylvania. GLDGA alleged that MetLife breached a fiduciary duty and breached a contract. On October 8, 1991, Judge Friedman denied MetLife’s motion to appoint a receiver without prejudice. Judge Friedman found that the action pending in federal court also involved the question of whether a default occurred in the tendering of payments at a lower interest rate. Judge Friedman concluded that in the interest of judicial economy, deference should be given to the federal court’s determination of that issue. Thus, the lower court ruled that the viability of MetLife’s motion to appoint a receiver was contingent upon the finding of a default.

Thereafter, in the federal court action, MetLife moved for summary judgment as to each count of GLDGA’s complaint. On January 4, 1993, the Honorable Donald E. Ziegler of the United States District Court for the Western District of Pennsylvania entered an order denying MetLife’s motion for summary judgment as to the breach of fiduciary claims. Judge Ziegler, however, granted MetLife’s motion for summary judgment as to the breach of contract claim. Judge Ziegler found that MetLife did not offer to reduce the interests payable on the notes.

On January 14, 1993, MetLife renewed its motion for appointment of a receiver with the court below and on April 1, 1993, the lower court granted that motion. The lower court determined that the federal court’s decision had collaterally established that Venture was in default of its repayment obligations with MetLife. By order dated June 15, 1993, as modified by order dated June 29, 1993, the court below appointed Grant Street Associates as the receiver. This appeal followed.

Herein, Venture raises the following issues for our review:

1. Whether the Court below erred by finding that a default in a mortgage occurred when it did not allow the property owner to introduce evidence that the alleged default occurred as a result of a breach of fiduciary duty by the lender/partner?
2. Whether the Court below erred by appointing a receiver during the pendency of a foreclosure action and a related federal court action when by its own findings, there were no equitable reasons for appointing a receiver?
3. Whether the Court below erred by not preserving the status quo during the pendency of litigation and by instead ordering the receiver to distribute $10,000,000.00 in assets to the lender?

Appellant’s Brief at 13.

We initially recognize that the lower court’s decision to appoint a receiver will not be reversed absent a clear abuse of discretion. See Bogosian v. Foerderer Tract Committee, Inc., 264 Pa.Super. 84, 89, 399 A.2d 408, 411 (1979) (“abuse of discretion” standard of review applies to trial court’s decision to appoint a receiver). Fervently embracing that standard of review, we proceed in addressing the merits of appellant’s contentions.

First, Venture maintains that the court below improperly precluded it from introducing evidence revealing that the default occurred as a result of MetLife’s breach of fiduciary duty to the partnership. Venture advances the following argument to buttress its claim that the lower court committed an error of law:

[B]y refusing to stay action on the request for a receiver until termination of the federal court proceeding or hearing evidence itself on the breach of fiduciary duty defense, the [lower court] held that a partner/lender in a real estate venture may through wrongful actions, cause the partnership to be in default and then pursue its default remedies under the mortgage. Such an interpretation is a perversion of the entire concept of fiduciary duties.

Appellant’s Brief at 23. MetLife argues, however, that the lower court afforded Venture the opportunity to introduce evidence at the hearing held on October 2, 1991, to support Venture’s argument that the default occurred as a result of MetLife’s breach of fiduciary duty. Indeed, our review of the notes of testimony taken at that hearing reveals that Venture failed to introduce evidence supporting that claim. MetLife also counters Venture’s assertion by directing our Court’s attention to the language provided in Part I, § 5.05 of the mortgage. That section states as follows:

Metropolitan Life Insurance Company, in its capacity as Mortgagee, shall not be deemed to have additional duties or obligations, nor shall its rights be diminished or otherwise adversely affected by reason of Metropolitan Life Insurance Company being, or becoming, a partner of the Mortgagor.

R. 68a. MetLife contends that under principles of contract law, Venture is bound by the aforementioned section of the Mortgage. Additionally, MetLife defends its rights as a mortgagee by maintaining that any alleged breach of fiduciary duty arose subsequent to and apart from the execution of the mortgage.

Under Pennsylvania law, “parties have the right to make their own contract, and it is not the function of a court to rewrite it or to give it a construction in conflict with the. accepted and plain meaning of the language used.” Meeting House Lane, Ltd. v. Melso, 427 Pa.Super. 118, 126, 628 A.2d 854 (1993), citing, Amoco Oil Co. v. Snyder, 505 Pa. 214, 221, 478 A.2d 795, 798 (1984); Hagerty v. William Akers, Jr. Co., 342 Pa. 236, 239, 20 A.2d 317, 318 (1941). “It is, ..., clear that the terms of the mortgage contract cannot be altered or impaired by either the legislature or the courts, and this applies to the remedies, or specific provision for its enforcement, as well as to the obligation to pay the bonded indebtedness.” Philadelphia Trust Co. v. Northumberland County Traction Co., 258 Pa. 152, 167, 101 A. 970, 974-75 (1917). See Galey v. Guffey, 248 Pa. 523, 94 A 238 (1915) (enforcement of provision in mortgage contract that competent parties solemnly and intelligently entered into); First Philadelphia Realty Corp. v. Albany Sav. Bank, 609 F.Supp. 207 (E.D.Pa.1985) (court must give effect to the intent of the parties where terms of mortgage contract are free from ambiguities).

Upon evaluating the language of the mortgage in its totality, see Melso, 427 Pa.Super. at 118, 628 A.2d at 857 (contract must be construed as a whole), we find that the parties clearly and unambiguously intended that MetLife retained rights as a mortgagee irrespective of MetLife’s additional role as a partner to the business arrangement. We are not prepared to disturb the terms of the mortgage which were agreed to by competent parties. Further, we find that Venture’s claim that MetLife breached a fiduciary duty does not nullify MetLife’s rights as a mortgagee since this allegation arose apart from the execution of the mortgage. See Chrysler First Bus. Credit Corp. v. Gourniak, 411 Pa.Super. 259, 601 A.2d 338 (1992) (mortgagors’ allegations of fraudulent misrepresentation and unjust enrichment in mortgage foreclosure action were not part of or incident to the creation of the mortgage, and, thus, could not be asserted against mortgagee). Consequently, we conclude that the lower court did not improperly preclude Venture from introducing evidence in support of its claim that the default occurred as a result of MetLife’s conduct.

Because we find that Venture’s second and third contentions raised herein both challenge the viability of the remedies provided under the mortgage, we address them concurrently. The interest payable on the notes for the offices and the hotel was 14%% and 15% respectively. R. 22b, 48b. Part I, § 2.01 of the mortgage provides that unpaid principal and interest constitute a default. R. 48a. Here, upon the federal court’s finding that MetLife and GLDGA did not agree to lower the interest rate, the court below determined that the federal court’s decision had collaterally established that Venture was in default of its repayment obligations with MetLife. The lower court then recognized the enforceability of Part I, § 3.03(a) of the mortgage. That section expressly states:

If an Event of Default shall have occurred and be continuing, Mortgagee, upon application to a court of competent jurisdiction, shall be entitled, without notice and without regard to the adequacy of any security for the repayment of the indebtedness evidenced by the Note and/or secured by this mortgage or the solvency of any party bound for its payment, to the appointment of a receiver(s) to take possession of and to operate the Property (or any portion thereof) and to collect the Rents and Profits....

R. 52a.

As we noted above, terms of a mortgage agreement are binding on the parties. “Great as are the equity powers of the court, it is yet to be suggested that included in these powers is the power to nullify or impair a legal contract solemnly and intelligently entered into between competent parties.” Galey, 248 Pa. at 528, 94 A. at 240. We find that the terms of the mortgage clearly provide for the appointment of a receiver in the event of a default. Moreover, we reject Venture’s contention that the lower court erred in directing the receiver to remit $10,000,000.00 to MetLife. That amount represented the payments calculated at a ten percent interest rate of which MetLife declined to accept as payments in full. R. 345a-347a. The lower court determined that $10,000,000.00 was in excess of amounts the receiver deemed necessary for ongoing operation of the property. Part I, § 3.03(a) of the mortgage authorizes the receiver to remit to MetLife funds in excess of the amounts needed for the ongoing operation of the mortgaged property. R. 52a-54a. Accordingly, we find that the lower court did not abuse its discretion in enforcing the remedies under the mortgage.

Having scrutinized Venture’s arguments and finding them to lack merit, we, thus, hold that the lower court did not abuse its discretion in granting MetLife’s motion to appoint a receiver.

Order affirmed.

      . At the hearing held on October 2, 1991, Venture offered the testimony of one witness. Rodrigo H. Marques, a representative of one of the managing partners of GLDGA, testified solely in support of Venture's contention that MetLife offered to reduce the interest rate payable on the notes to 10%. Hearing N.T. 10/2/91 at 45.


text:
    650 A.2d 891
    COMMONWEALTH of Pennsylvania, Appellee, v. James FORNICOIA, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 4, 1994.
    Filed Dec. 1, 1994.

      Steven Savor, Jr., Pittsburgh, for appellant.
    Matt Hayes, Asst. Dist. Atty., Erie, for Com., appellee.
    Before CAVANAUGH, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Erie County following appellant’s conviction on a charge of possession of marijuana with intent to deliver. Appellant contends that the trial judge erred when he warned the Commonwealth’s witness of the penalty for perjury and this error prejudiced appellant. After careful review, we agree, vacate the judgment of sentence and grant appellant a new trial.

The record reveals the following facts: On August 14, 1992, William L. Askins, Jr. was arrested for possession of marijuana. Mr. Askins informed law enforcement officers that he had purchased the marijuana on August 12, 1992, at a residence located on 2816 Zimmerman Drive in Erie County. Mr. Askins stated that he was taken to the Zimmerman Drive residence by one Brian Hoffman. He stated that there was “a kid named Jimmy” in the apartment when he obtained the marijuana. Askins later identified “Jimmy” as the defendant. Askins did not receive the marijuana from “Jimmy.” Brian Hoffman went into the apartment and returned with the marijuana which he then gave to Askins.

Erie County law enforcement officers obtained a search warrant for the Zimmerman Drive address based on Mr. Askins’ information. The police executed the warrant and found a triple beam scale and several plastic baggies containing approximately 160 grams of marijuana. The police also confiscated $8,500 in United States currency, various pieces of mail addressed to appellant at the Zimmerman Drive address, a “High Times” magazine article on marijuana harvesting and identification cards with appellant’s photo on them. Appellant was charged with possession of marijuana with the intent to deliver as a result of the search.

The Commonwealth called Askins as a witness at appellant’s trial. Askins initially could not identify appellant as the person who was present at the residence where the marijuana was purchased. At this point, the Commonwealth requested a sidebar because Askins’ testimony was different from statements he had given to the Commonwealth. Apparently, As-kins previously identified appellant as the person from whom the marijuana was purchased.

The trial judge then recessed the jury and warned Askins of the penalty for perjury:

THE COURT: Now, without saying anything, all right, testifying under oath and lying is called perjury. That happens to be a felony offense in the Commonwealth of Pennsylvania. When a witness goes south — -that’s what we call it when they tell the DA one thing and then they come in and they testify different. The judge has an obligation to the tell the witness, if you continue this, you may subject yourself to the charge of perjury which is punishable by ten years imprisonment. The last time someone committed perjury in my courtroom I gave them five to ten.... I have no idea whether you’re lying under oath, but the DA is telling me you told her something different.... However, if you realize the error of your ways and you think you’re lying under oath, you can recant. If you recant you cannot be charged ...

(N.T. 5/17/93 at 56). Appellant’s counsel objected to the judge’s actions and moved for a mistrial. He argued that the proper method for handling the situation was to impeach the witness with a prior inconsistent statement. After the warning by the trial judge, Askins resumed testifying and identified appellant as the person he had seen at the Zimmerman Drive residence.

Appellant testified that, although he lived at the residence where the marijuana was seized, the marijuana was not his. Appellant also testified that Brian Hoffman was his roommate and the marijuana belonged to Hoffman. Moreover, appellant denied knowing or ever meeting William Askins. He stated that he did not know that Hoffman kept marijuana in the apartment because he returned to Pittsburgh on the weekends, and Hoffman had access to the apartment during these absences. Thus, he did not know what use Hoffman made of the apartment during appellant’s absence. Brian Hoffman denied ever living with appellant.

The jury convicted appellant of possession with the intent to distribute marijuana. The court sentenced appellant to be incarcerated for a period of three to twelve months, followed by four years of probation. Upon review, we find that the lower court erred when it warned William Askins about the penalty for perjury and that the error was not harmless.

“In presiding over trial, the court has a paramount duty to maintain its impartiality, as well as a responsibility to respect the dignity of the witnesses.” Commonwealth v. Laws, 474 Pa. 318, 325, 378 A.2d 812, 815 (1977). The court has the power to question a witness and warn the witness of the ramifications of perjury. However, this power should be used with caution. Id. The court’s intrusion into this area can lead to the witness conforming his testimony “to what the witness believes the court expects.” Id. 326, 378 A.2d at 816. The court must not question a witness such that the witness feels pressured to testify in a particular way. Id. In the case at bar, the trial judge’s warnings and questioning of Askins resulted in a change of his testimony after the warnings were given. The trial judge’s warnings and questioning conveyed to Askins that he should testify in a way that was different from the manner in which he was then testifying. Askins changed his testimony so that it was consistent with previous statements given to the Commonwealth.

The Commonwealth argues that the trial judge’s actions did not cause Askins to change his testimony, and that, even after the judge’s comments, Askins could not identify appellant. However, examination of the record shows that, after the judge’s warning, Askins did identify appellant as “Jimmy.” Askins went from a position of having no idea whether appellant was “Jimmy” to identifying him as the person from whom he obtained the marijuana.

We held that similar behavior by a trial judge was erroneous in Commonwealth v. Laws, supra. In Laws, the Commonwealth’s witness’ testimony at defendant’s murder trial differed from his preliminary hearing testimony. At the preliminary hearing, the witness stated that he saw defendant stab the victim. Id. 322, 378 A.2d at 814. At trial, the witness testified that the person who stabbed the victim was not present in the courtroom. Id. The trial judge excused the jury and asked the witness if anything was preventing him from telling the truth at trial. The judge then warned the witness of the consequences of perjury. Id. 324, 378 A.2d at 815. The witness stated that he did not wish to change his trial testimony. However, upon cross-examination by the Commonwealth, when the witness was read his preliminary hearing testimony, he recanted his trial testimony and testified in a manner consistent with his preliminary hearing testimony. Id.

We found that the trial judge’s questioning of the witness and use of perjury warnings pressured the witness to retract his initial trial testimony and adopt the testimony from the prehminary hearing. Id. 326, 378 A.2d at 816. Furthermore, the judge’s behavior left the witness “little doubt as to which testimony the court believed.” Id. The court did not give the witness a chance to explain why his previous testimony differed. We held that the trial judge’s actions were not harmless and reversed the judgment of sentence and granted a new trial. Id. 330, 378 A.2d at 818.

Here, the trial judge questioned Askins about the change in his testimony and warned him of the consequences of perjury. In fact, the trial judge’s threats were even more severe than those used by the trial judge in Laws because the Commonwealth never impeached Askins with his prior statements. In Laws, the witness adhered to his trial testimony until he was impeached with' his preliminary hearing testimony. Thus, the jury was denied the opportunity to judge Askins’ credibility properly. Moreover, the trial judge did not try to determine why Askins’ testimony was changing. Following our reasoning in Laws, there can be little doubt that the trial judge believed the previous statements given to the Commonwealth more than those initially stated at the trial.

Because the trial judge erred, we must determine if this error was harmless. If the error is harmless, the jury’s verdict will stand. The burden is on the Commonwealth to establish, beyond a reasonable doubt, that an error is harmless. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). “[A]n error cannot be held harmless unless the appellate court determines that the error could not have contributed to the verdict.” Id. 409, 383 A.2d at 164. The Commonwealth’s burden will be met if the prejudice from the erroneously admitted evidence is de minimis; the erroneously admitted evidence is merely cumulative of other properly admitted evidence; it is substantially similar in kind and incriminating details to other indisputable, independently obtained, and properly admitted evidence; or if the Commonwealth’s evidence of guilt is overwhelming and, by comparison, the prejudice of error is insignificant. Id. 409-417, 383 A.2d at 164-168.

In the case at bar, the prejudice is more than de minimus. Without Askins’ identification of appellant, the Commonwealth may not have been able to establish constructive possession of the marijuana by appellant. Askins identified appellant as the person present in the apartment at the time when he obtained the marijuana. The Commonwealth had no other witnesses to provide this type of testimony. Askins’ testimony directly contradicted appellant’s allegation that the marijuana belonged to Brian Hoffman and that he did not know the marijuana was in the apartment because of Hoffman’s access to the apartment when appellant was in Pittsburgh.

Honest, fair-minded jurors may not have returned guilty verdicts in the absence of Askins’ testimony. Moreover, the almost identical situation in Laws, supra, was held not to be harmless error. Since the trial judge erred in his warnings to Mr. Askins and the error was not harmless, appellant was prejudiced and is entitled to a new trial.

Judgement of sentence is vacated and the case is remanded for a new trial. Jurisdiction relinquished.

CAVANAUGH, J., concurs in the result.

      . Because we reverse on this ground, we need not address the other questions presented by appellant: 1) The trial court erred in allowing the Commonwealth to infer in its closing argument that mere residence at the apartment where the contraband was found was sufficient to establish constructive possession; and 2) The trial court erred in its charge to the jury.
      Appellant also raises an issue as to whether the evidence was sufficient to sustain his conviction for possession of marijuana with intent to deliver. We have reviewed this claim and find that the evidence was sufficient. However, even though we are reluctant to grant a new trial, we must do so as appellant was prejudiced by the trial judge’s conduct. Without the trial judge’s behavior, the witness’ testimony may have created a reasonable doubt in the jury’s mind.

      . The substance of Askins’ prior statements to the prosecutor is not clear from the record. However, it appears that the prior statements were consistent with the testimony he gave after the perjury warnings.

      . The Commonwealth also contends that there was no harm from the trial judge’s actions because the jury was not present when these comments took place. Laws, supra, tells us that the jury need not be present for the judge's actions to result in prejudicial error. The trial judge’s actions in this case were improper because of the effect they had on Askins’ testimony.


author: MONTGOMERY, Judge:

text:
    650 A.2d 895
    MELLON BANK, N.A., Appellee, v. Josephine K. FABINYI, Appellant, v. Dr. Geza T. FABINYI, A/K/A G.T. Fabinyi, Appellee.
    Superior Court of Pennsylvania.
    Submitted Feb. 1, 1994.
    Filed Dec. 2, 1994.

      Alexander A. Notopoulos, Altoona, for appellant.
    Anthony J. Gerace, Jr., State College, for Mellon Bank.
    Frederick B. Gieg, Jr., Altoona, for Dr. Geza T. Fabinyi.

      Before DEL SOLE, FORD ELLIOTT and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The plaintiff, Mellon Bank, N.A., instituted this action against defendant-appellant Josephine K. Fabinyi, claiming that the defendant was liable for payments to Mellon as a result of her alleged defaults under a motor vehicle lease agreement. Subsequently, after a number of pleadings were filed, which shall be described more fully below, the defendant filed a complaint against appellee Geza T. Fabinyi, to join him as an additional defendant in the case. Thereafter, Geza Fabinyi filed preliminary objections, which resulted in a trial court order dismissing the defendant’s complaint against additional defendant. The instant appeal followed.

It is appropriate to review the detailed procedural history of this case in the trial court. On June 22, 1992, plaintiff Mellon Bank filed a complaint against defendant Josephine K. Fabinyi, which sought damages based upon her alleged default on an automobile lease agreement, which had been assigned to Mellon by an automobile dealer. Mellon claimed that the defendant owed the amount of $12,222.97, plus legal fees and costs, as a result of her breach of contract. The defendant filed preliminary objections which challenged several aspects of the complaint. Without any ruling by the court on the preliminary objections, Mellon filed an amended complaint, adding some allegations which were not included in the original complaint. Defendant Josephine K. Fabinyi then filed preliminary objections to the amended complaint.

On August 13, 1992, eight days after the filing of her preliminary objections to Mellon. Bank’s amended complaint, defendant Josephine K. Fabinyi filed a complaint against additional defendant Dr. Geza T. Fabinyi a/k/a G.T. Fabinyi, to whom she had been married. In this complaint against additional defendant, she attached and made reference to both the complaint and amended complaint which had been filed by Mellon Bank against her, as well as the exhibits to those pleadings, including the purported motor vehicle lease agreement on which Mellon based its claims. She also attached copies of the preliminary objections she had filed as to both the original and the amended complaint. She then alleged, in three separate counts, her claims against the proposed additional defendant. In the first count, she asserted that by the terms of the motor vehicle lease agreement, Geza Fabinyi was jointly and severally liable with her to the plaintiff, on the plaintiffs cause of action. In her second count, she declared that at the time that the motor vehicle lease agreement was entered into, she and Geza Fabinyi were husband and wife, and that they had agreed that she was entitled to use the vehicle leased under the agreement, as a necessity of life. She claimed that Geza Fabinyi agreed to pay all costs of the rental and/or ownership of the said vehicle, as well as the costs of repair and maintenance thereof. Accordingly, in the second count, the defendant maintained that if she was liable to the plaintiff, additional defendant Geza Fabinyi was liable over to her. In the third count, she alleged that prior to entering the lease agreement, she and Geza Fabinyi had a 1988 motor vehicle which Geza Fabinyi had agreed was for her use, with the understanding that he would pay the costs of same. Further, she averred that Geza Fabinyi had negligently damaged the 1988 motor vehicle in January 1989, and had retained all rights to recover damages for the loss and damage to the vehicle. She contended that by reason thereof, Geza Fabinyi was, in effect, the lessor of the 1989 vehicle on which this action is based. She also claimed that her husband had directed her to secure the use of the 1989 vehicle solely for her use, at his cost and expense. Finally, she maintained that either Mellon Bank or Geza Fabinyi had made a recovery of an unknown sum of money from an insurer of the 1988 motor vehicle, but failed to advise her of the recovery and failed to account for that recovery and protect her rights in connection with the cause of action pleaded in the instant case by Mellon Bank. She claimed that all of these purported circumstances made it appropriate that Geza Fabinyi be held liable alone to Mellon, if it was entitled to any judgment in the action. Although it was not in a separate count, a final paragraph of the complaint to join additional defendant asserted a demand that Geza Fabinyi account to the defendant for any recovery of any consideration or benefit which resulted from the loss or damage to the 1988 motor vehicle.

On August 14, 1992, the day after defendant filed her complaint against additional defendant, Mellon Bank filed a second amended complaint. It again named Josephine K. Fabinyi as the only defendant, repeated everything which had been alleged in the original and first amended complaints, and added additional allegations regarding its claim against the defendant. In the second amended complaint, Mellon increased its demand, seeking a recovery in the amount of $18,212.36, plus interest and costs.

On August 21, 1992, defendant filed an answer to plaintifPs second amended complaint, together with a counterclaim. The allegations in the counterclaim are not pertinent to the issues raised on the instant appeal. The answer denied almost all material allegations in the second amended complaint. Of note, however, is that in response to the third count of the second amended complaint, defendant admitted that she signed the name of Geza Fabinyi on the motor vehicle lease agreement, but averred that she did so with his prior knowledge, consent and ratification, as well as with the knowledge of the automobile dealer. She also asserted defenses based upon the matters raised in her complaint against the additional defendant.

On September 8, 1992, additional defendant Geza Fabinyi filed preliminary objections. First, he asserted a demurrer to the first count of the defendant’s complaint against him. He declared that the terms of the motor vehicle lease agreement did not, in and of themselves, make out any cause of action against him, and on that basis, asked that the first count be dismissed. A second demurrer in his preliminary objections stated that the particular luxury motor vehicle involved in this litigation was not a necessity of life under any circumstances, and that his wife had forged his signature and therefore had no action against him. On such grounds, he again requested that Mrs. Fabinyi’s complaint against him be dismissed. Finally, his preliminary objections asserted that allegations in the third count of the complaint against additional defendant, concerning a previous vehicle being wrecked, were scandalous and impertinent, and should be stricken. He maintained that if such allegations were stricken, count three of the complaint against him should be dismissed.

On the same date, September 8, 1992, additional defendant Geza Fabinyi filed a counterclaim against defendant Josephine Fabinyi. In that pleading, he claimed that she filed the action knowing that he had never signed the lease agreement, nor authorized her to do so, so that her efforts to join him in the case as an additional defendant were arbitrary, vexatious, and in bad faith. On that basis, he sought an award of counsel fees against Josephine Fabinyi. It is noteworthy that he did not file any answer, to accompany this counterclaim.

On September 11,1992, the defendant filed an answer to the preliminary objections which Geza Fabinyi had filed in opposition to her complaint against additional defendant. As to the first preliminary objection, she responded that the motor vehicle lease agreement contained the signature of the additional defendant, which made him jointly and severally liable to the plaintiff. As to the second preliminary objection, she raised the contention that it was a speaking demurrer, which could not be substituted for facts pleaded in a responsive pleading. Finally, in opposition to the third part of Geza Fabinyi’s preliminary objections, she raised allegations concerning the value of the 1988 vehicle and credits which should have been given her relating to it.

The defendant also filed an answer to the additional defendant’s counterclaim, and Mellon Bank filed an answer to the defendant’s counterclaim, with new matter. Mrs. Fabinyi subsequently filed an answer to the bank’s new matter.

On October 14, 1992, additional defendant Geza T. Fabinyi filed an affidavit, in which he stated that he did not sign the motor vehicle lease agreement for the 1989 vehicle, and that he had not authorized his wife, Josephine K. Fabinyi, to sign the agreement for him or to act on his behalf.

Faced with this complex group of pleadings, the trial court ruled on Geza Fabinyi’s preliminary objections to the complaint to join him as an additional defendant in the case. In an opinion and order it prepared, the trial court first reviewed all of the relevant pleadings, and then discussed several legal precedents applicable to the consideration of preliminary objections in the nature of a demurrer. The court next noted that Geza Fabinyi had asserted an argument that the purported agreement to provide a 1989 vehicle to his wife, to replace the wrecked 1988 vehicle, was in the nature of a suretyship, and that liability could not be imposed against him because such an agreement had to be in writing under the Statute of Frauds, Act of April 26, 1855, P.L. 308, § 1, 33 P.S. § 3. The court ruled that the Statute of Frauds provided a basis, standing alone, to dismiss the defendant’s complaint against additional defendant. The court explained that because Geza Fabinyi did not gain any benefit from the motor vehicle lease, his relationship to the transaction would have been as a surety. While the court observed that the defendant had alleged that there was an alleged verbal agreement with Dr. Fabinyi, and that he had given her authority to sign the contract on his behalf, the court ruled such an oral agreement between the two could not defeat the Statute of Frauds.

The court further declared that even if it found that the complaint against additional defendant was not barred by the Statute of Frauds, the second and third counts of the complaint against additional defendant would be subject to dismissal on other grounds. In that regard, the court held that the luxury automobile which was the subject of the lease would not have been a necessity of life which the additional defendant would have been required to provide to his wife. As to the third count of the complaint against additional defendant, the court noted, in summary fashion, that the Statute of Frauds and lack of necessity would bar the entire complaint. Finally, the court stated that issues concerning the negligence of Geza Fabinyi in causing damage to the 1988 vehicle, and any insurance proceeds derived therefrom, were possible defenses to the proof of damages which might be offered by the plaintiff bank, but did not support the defendant’s complaint to join additional defendant.

Based on this complex record from the trial court, we must address the contentions raised by the defendant-appellant. Unfortunately, the brief filed on behalf of the defendant on this appeal is poorly organized, and, in several regards, confusing. A great many points are raised in support of the argument that the trial court erred in sustaining the preliminary objections filed by additional defendant-appellee Geza T. Fabinyi. Rather than recite the full scope of the contentions raised by the appellant, it is appropriate to focus on those few we deem meaningful in our disposition of the instant appeal. Further, in doing so, we note that because the trial court order in question was entered prior to March 1, 1994, amended Pa.R.A.P. 341 does not apply to our consideration of the issues presented.

The defendant challenges the trial court’s conclusion that a suretyship relationship existed with regard to her claims that her husband was liable on the lease. She maintains that the rules applicable to the review of preliminary objections mandated that the trial court only consider the pleadings, and that the affidavit filed by her husband was a nullity at this stage of the proceedings.

The analysis of such contentions requires observance of several rules applicable in a court’s consideration of preliminary objections. It is well-established that in the review of preliminary objections, the facts that are well-pleaded, material, and relevant will be considered as true, together with such reasonable inferences as may be drawn from such facts. Santiago v. Pennsylvania National Mutual Casualty Insurance Co., 418 Pa.Super. 178, 183, 613 A.2d 1235, 1238 (1992). In some contexts, when issues of fact are raised by preliminary objections, the trial court may receive evidence by depositions or otherwise. Pa.R.Civ.P. 1028, 42 Pa.C.S.A.; Slota v. The Moorings, Ltd., 343 Pa.Super. 96, 494 A.2d 1 (1985). However, preliminary objections in the nature of a demurrer require the court to resolve the issues solely on the basis of the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by a demurrer. International Union of Operating Engineers, Local No. 66 v. Linesville Construction Company, 457 Pa. 220, 322 A.2d 353 (1974). In order to sustain a demurrer, it is essential that the face of the complaint indicate that its claims may not be sustained and that the law will not permit a recovery. Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976). If there is any doubt, it should be resolved by the overruling of the demurrer. Gekas v. Shapp, Id.

In the instant case, Geza Fabinyi’s preliminary objection to the first count of the additional defendant complaint was a demurrer. Accordingly, the trial court was only free to address the issue of whether that complaint, on its face, failed to assert a cause of action as a matter of law. However, it is clear that the trial court considered factual matters beyond the complaint in finding that the purported lack of any written suretyship agreement justified a dismissal of the defendant’s complaint as a result of the Statute of Frauds. The trial court’s opinion specifically stated that it considered “the surrounding circumstances of the lease agreement” in determining that the Statute of Frauds applied.

We conclude that the trial court erred in considering such matters, which were clearly outside of the face of the defendant’s complaint against additional defendant. Even if the trial court were permitted to consider other evidence, the limited record before the court would not have permitted it to conclude, without doubt, that this case involved a suretyship relationship between Josephine Fabinyi and her spouse, rather than an agreement that they be jointly bound as lessees of the 1989 vehicle. See, First Federal Savings and Loan Assn. of Pittston v. Reggie, 376 Pa.Super. 346, 546 A.2d 62 (1988). Further, although the issue has not been addressed by the trial court or any party, it is conceivable that the lease itself could be argued to be a writing which satisfied the Statute of Frauds, assuming that a fact finder determined that Geza Fabinyi authorized his wife to sign his name to the lease. In any event, such matters may only be considered at some later stage of the proceedings, and not in the context of the demurrer Geza Fabinyi offered in opposition to the first count of the complaint defendant instituted against him. Our review of the face of count one convinces us that the granting of the demurrer was not proper. The complaint merely stated that by reason of the terms of the lease agreement, which included Geza Fabinyi’s purported signature, the proposed additional defendant was jointly and severally liable with the defendant on the lease. A claim is obviously pleaded in that count, and the demurrer should have been rejected.

Although the trial court found that the absence of a written suretyship agreement justified the dismissal of all counts of the complaint against additional defendant, it also offered separate grounds for dismissing the second count of the complaint, in which the defendant claimed that her husband agreed to pay all costs of the vehicle because it was a necessity of life for her. The court rejected this contention, ruling that it could not find this vehicle to be such a necessity. In doing so, the trial court noted that Dr. and Mrs. Fabinyi had been involved in protracted litigation involving their marital difficulties, and that another judge of the same court had ordered the defendant to get rid of the 1989 vehicle to resolve the outstanding monthly financial obligation it created. Thus, the trial court found that the other judge had not deemed the vehicle to be a necessity.

In our view, the additional ground cited by the trial court did not, at this stage of proceedings, justify the dismissal of count two of the complaint against additional defendant. Mrs. Fabinyi averred that she and her husband agreed that the vehicle was to be used by her, as a necessity, and that he would pay all costs associated with it. Setting aside the suretyship issues which may be resolved at later proceedings in this case, the mere conclusion that the vehicle was not a necessity, even if valid, does not resolve the factual issue of whether Dr. Fabinyi entered into an enforceable promise to his wife to pay for the costs of the vehicle. That factual issue could not be resolved on preliminary objections, in light of the absence of any meaningful factual record in the case. While further proceedings in this litigation may well justify the dismissal of that claim, the current record does not support such a resolution in the context of the preliminary objections.

Finally, we address the trial court’s dismissal of the third count of defendant’s complaint. In his preliminary objections, Geza Fabinyi asked that the third count be stricken on the basis that it contained scandalous and impertinent matter. Instead of addressing that issue, the trial court ordered the third count to be dismissed based upon the Statute of Frauds requirements, the determination that the vehicle was not a necessity, and because the defendant wife was not a statutorily protected creditor.

We have already discussed the Statute of Frauds and necessities issues. The record, as it exists, does not permit us to rule on any issue regarding the defendant’s creditor status in the case. The allegations in the third count of the complaint against additional defendant are quite confusing, and a court could conclude that this count includes only scandalous and impertinent matter which fails to state a cognizable ground for relief. However, it is inappropriate that our court resolve that issue for the first time on appeal, especially in light of the failure by any party to adequately address it in the arguments presented on this appeal. Instead, we deem it appropriate that the trial court, after remand, further consider the specific argument raised by Dr. Fabinyi in his preliminary objection to the third count of the additional defendant complaint Mrs. Fabinyi filed in this case.

The order of the trial court dismissing the complaint against additional defendant is reversed and vacated. This case is remanded to the trial court for further proceedings consistent with this opinion. Jurisdiction is relinquished.

      . In that regard, it is noteworthy that while Geza Fabinyi filed an affidavit stating that he never authorized his wife to sign his name to the lease, she filed an answer to Mellon Bank’s second amended complaint in which she averred that she signed her husband’s name on the lease with his knowledge, consent and ratification.

      . The Statute of Frauds requires such a writing to be signed “by the party to be charged therewith or some other person by him authorized." 33 P.S. § 3.


author: SAYLOR, Judge:

text:
    650 A.2d 901
    Frank DATH and Marie Dath, Appellants, v. MARANO TRUCK SALES AND SERVICE, INC. and Marano Truck Rental Corp., Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1994.
    Filed Dec. 5, 1994.

      Brian P. Pincus, Philadelphia, for appellants.
    Glen R. Stuart, Philadelphia, for appellee.
    Before ROWLEY, President Judge, and WIEAND and SAYLOR, JJ.
   SAYLOR, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County, entering judgment in favor of Appellee, Maraño Truck Rental (Maraño). We affirm.

Appellants, Frank and Marie Dath, initiated an action against Maraño alleging that Maraño negligently installed and maintained an overhead radio located in a truck owned by Maraño and leased to Frank Dath’s employer. Specifically, Mr. Dath alleged that while he was driving the truck on September 12, 1988, the overhead radio dislodged from its compartment and hit him on the head, causing him to slam on the brakes. As a result of this incident, Mr. Dath allegedly sustained head injuries and a herniated disc. At trial, Mr. Dath testified that he was aware of the radio’s propensity to fly out of its compartment, and that it had done so on previous occasions. After four days of trial testimony, the jury found that both Mr. Dath and Appellee were causally negligent. In response to special interrogatories, the jury apportioned the negligence as follows: Mr. Dath — 70% and Maraño — 30%; accordingly, a verdict was entered in favor of Maraño. Appellants filed a motion for a new trial which was denied. This timely appeal followed.

On appeal, Appellants allege that the trial court erred in prohibiting their counsel from cross examining and impeaching a witness called during their case in chief, when the witness’ trial testimony was inconsistent with his prior deposition testimony. Appellants assert that this alleged error by the trial court warrants the grant of a new trial.

In reviewing the trial court’s denial of a motion for a new trial, this court must determine whether “the trial court clearly and palpably abused its discretion or committed an error of law which may have controlled the outcome of the case”. Sacks v. Mambu, 429 Pa.Super. 498, 501-02, 632 A.2d 1333, 1334 (1993).

Instantly, Appellants contend that the trial court erred in refusing to allow Appellants to impeach their own witness, Marcel Girard, a Maraño employee, with a prior inconsistent statement. For counsel to cross-examine his own witness on a plea of surprise, the following conditions must be met:

the witness has given testimony which was unexpected, contrary to statements which the witness had made earlier, and harmful to the party calling the witness and beneficial to the opposing side. Commonwealth v. Waller, 498 Pa. 33, 37-39, 444 A.2d 653, 655-57 (1982).

Commonwealth v. Smith, 511 Pa. 343, 353, 513 A.2d 1371, 1376 (1986), cert. denied, Smith v. Pennsylvania, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987).

Thus, the first prong of the test employed in determining whether a party will be permitted to impeach his own witness is that of surprise. Here, Appellants claim that Girard’s testimony was unexpected because it conflicted with his previous statements.

The next requirement is that the witness’ testimony must be inconsistent with a prior statement made by the witness. Girard testified at trial that when the radio was brought into Marano’s garage following the incident it was hanging from its wires, whereas in prior deposition testimony he stated that the radio was in its proper place at such time. Therefore, the trial court correctly noted that “[a]dmittedly, there seems to be a question as to whether Mr. Girard’s trial testimony contradicted his deposition testimony.”

However, Appellants must not only prove surprise and the existence of a prior incopsistent statement; they must also demonstrate that the testimony given by the witness was detrimental to the party calling the witness and beneficial to the opposing party. Harding v. Consolidated Rail Corp., 423 Pa.Super. 208, 620 A.2d 1185 (1993). Here, the substance of Girard’s testimony corroborated Mr. Dath’s testimony and lent credibility to his position. At trial, both Girard and Mr. Dath testified that the radio was hanging from its wires when brought in for repairs immediately following the incident. Therefore, the testimony itself was not detrimental to Appellants and indeed supported their claim.

Appellants assert, however, that the harm was not in the substance of the testimony; rather, they claim that their case was prejudiced because they were denied the opportunity to bring into question the credibility of a Marano employee. The standard enunciated in Smith, supra, clearly refers to harm caused by the testimony itself, and not the effect of being denied an opportunity to discredit a witness. “[Tjhere must be something in the witness’ testimony, which if not disbelieved by the jury will be hurtful or injurious to the party calling him.” Commonwealth v. Waller, 498 Pa. 33, 38, 444 A.2d 653, 656 (1982) (citations omitted). Accordingly, Appellants have failed to demonstrate that they were harmed by the trial court’s ruling.

Finding no abuse of discretion or error of law, we affirm the order of the trial court.

Order affirmed.


author: CAVANAUGH, Judge:

text:
    650 A.2d 903
    Traci McCALL, Appellant v. FORMU-3 INTERNATIONAL, INC., Chugai Boyeki Co., Ltd., Chugai Boyeki, America, Corp., Nippon Kayaku Co., Ltd., Hormel International Corp., George A. Hormel Corp., Ajinomoto USA, Inc., Ajinomoto Co., Inc., P.J. Ann’s Inc., Food Sciences Corp., R-Kane Products, Inc., Formu-3 Weight Loss Center, John Doe Distributor, Jane Doe Distributor, Showa Denko K.K., Showa Denko America Inc.
    Superior Court of Pennsylvania.
    Argued May 24, 1994.
    Filed Dec. 8, 1994.

      John P. Koresky, Philadelphia, for appellant.
    Edward P. Henneberry, Washington, DC, pro hac vice. James E. Burns, Philadelphia, for R-Kane.
    Before CAVANAUGH, CIRILLO and BROSKY, JJ.
   CAVANAUGH, Judge:

Appellant, Traci McCall, appeals from the Order of the Court of Common Pleas of Philadelphia County which sustained the preliminary objections of appellee, Nippon Kayaku Co., Ltd., (“Nippon”) for lack of personal jurisdiction. For the reasons which follow, we affirm.

Appellant, a Pennsylvania resident, instituted this products liability and negligence action claiming physical injuries allegedly suffered as a consequence of her ingestion of L-tryptophan. Appellant alleged that L-tryptophan was manufactured and/or distributed by appellee Nippon. On July 12, 1993, Nippon filed preliminary objections challenging personal jurisdiction in this Commonwealth. A hearing was held on the objections on October 25, 1993 and on November 9, 1993, the court below granted Nippon’s preliminary objections and dismissed appellant’s claims against it. This appeal followed.

Appellant presents three issues for our review:

I. Whether the trial court erred in granting Nippon’s Preliminary Objections and dismissing appellant’s claims for lack of in personam jurisdiction.
II. Whether the trial court erred in finding that appellant failed to prove that minimum contacts existed between Nippon and Pennsylvania.
III. Whether the trial court erred in finding that the exercise of in personam jurisdiction over Nippon, in light of the evidence presented, would fail to satisfy due process.

We first note that “when preliminary objections, if sustained, would result in the dismissal of an action, the objections should be sustained only in cases which are clear and free from doubt. In addition, when deciding a motion to dismiss for lack of personal jurisdiction!,] the court must consider the evidence in the light most favorable to the nonmoving party. However, once the moving party has supported his objection to jurisdiction, the burden of proof shifts to the party asserting jurisdiction.” Rivello v. New Jersey Automobile Full Insurance Underwriting Association, et al, 432 Pa.Super. 336, 638 A.2d 253, 255-256 (1994) (quotations and citations omitted).

Pennsylvania courts may exercise two types of personal jurisdiction over out-of-state defendants, (1) specific jurisdiction (under 42 Pa.C.S.A. § 5322), based upon the specific acts of the defendant which gave rise to the cause of action, and (2) general personal jurisdiction (under 42 Pa. C.S.A. § 5301), based upon a defendant’s general activity within the state. Derman v. Wilair Services, Inc., 404 Pa.Super. 136, 590 A.2d 317 (1991), alloc. denied 529 Pa. 621, 600 A.2d 537 (1991). Even if specific personal jurisdiction does not exist Pennsylvania courts may still be able to exercise general personal jurisdiction if the defendant has carried on a continuous and systematic part of its general business within the Commonwealth. Id. at 147, 590 A.2d at 323.

The question of whether a state may exercise specific jurisdiction over a non-resident defendant must be tested against both the state’s long-arm statute (here 42 Pa.C.S.A. § 5322) and the due process clause of the fourteenth amendment. Filipovich v. J.T. Imports, Inc., 431 Pa.Super. 552, 637 A.2d 314, 316 (1994). “If jurisdiction may be conferred by the state’s long arm statute, a tribunal must next determine whether the defendant has established minimum contacts with the forum state. Finally, it must be established the assertion of in personam jurisdiction would not violate the ‘traditional notions of fair play and substantial justice.’ ” Id., 556, 637 A.2d at 316. (citations omitted). In this case, since the trial court concluded that jurisdiction was authorized by statute, the issue became whether due process requirements were satisfied, i.e., whether the appellee had established minimum contacts with this forum, and whether fair play and substantial justice would not be violated by the assertion of jurisdiction.

Recently, in Kubik v. Letteri, 532 Pa. 10, 614 A.2d 1110 (1992), Pennsylvania’s Supreme Court adopted the flexible approach articulated in Burger King Corporation v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) regarding the determination of whether due process has been satisfied. “The standard which’ must be met by a state in asserting specific personal jurisdiction over a non-resident defendant ... is clear: (1) the non-resident defendant must have sufficient minimum contacts with the forum state and (2) the assertion of in personam jurisdiction must comport with fair play and substantial justice. The determination of whether this standard has been met is not susceptible to any talismanic jurisdictional formula: The facts of each case must always be weighed in determining whether jurisdiction is proper.” (citation omitted). Id. at 17, 614 A.2d at 1114. In Burger King, the Court “held that the determination of whether sufficient minimum contacts exist for the assertion of in personam jurisdiction is based on a finding that the ‘defendant’s conduct and [his] connection with the forum State are such that he should reasonably anticipate being haled into court there.’ ” Kubik at 17, 614 A.2d at 1114, quoting Burger King 471 U.S. at 474, 105 S.Ct. at 2183. “Critical to the analysis of whether a defendant should reasonably anticipate being haled into court in the forum state is the determination that the defendant purposefully directed his activities at residents of the forum and purposefully availed himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protection of its laws.” Random, fortuitous or attenuated contacts will not suffice. Id. at 18, 614 A.2d at 1114.

Even if a non-resident defendant purposefully established minimum contacts with the forum, “in personam jurisdiction may only be asserted over a non-resident defendant when the nature and quality of that defendant’s activities are such as to make it reasonable and fair to require him to conduct his defense in the state.” Id., 17, 614 A.2d at 1114.

In making the determination of whether it is reasonable and fair to require a defendant to conduct his defense in that forum, factors a court should consider include “(1) the burden on the defendant, (2) the forum state’s interest in adjudicating the dispute, (3) the plaintiffs interest in obtaining convenient and effective relief, (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies and (5) the shared interest of the several states in furthering fundamental substantive social policies.” Id., 18, 614 A.2d at 1114.

We turn now to the case before us. In its opinion the trial court stated that appellant had proved that jurisdiction was authorized by statute but had failed to show that due process would not be offended by the assertion of jurisdiction.

We agree with the trial court that this Commonwealth’s long-arm statute, 42 Pa.C.S.A. § 5322(a)(4), applies to plaintiffs claim and authorizes jurisdiction over appellee. The issue therefore becomes whether due process would be offended by the application of specific jurisdiction over the appellee. The first consideration is whether appellee has the requisite minimum contacts with this Commonwealth.

Appellant contends that Nippon, a Japanese corporation whose activities focus on the production and distribution of pharmaceuticals and chemicals, has continuing and sustained contact with this Commonwealth. Appellant cites several examples of this contact including the fact that Nippon has entered into a joint venture with Sartomer Company, Inc., a corporation located in Exton, Pennsylvania. It is also alleged that Nippon, through its liaison, engaged in a series of ongoing contacts, meetings, and opportunities to exchange information with several Pennsylvania companies. Appellant contends that when these contacts are examined along with Nippon’s action of placing L-tryptophan into the stream of commerce, minimum contacts are clearly established.

Our decision today, therefore, is whether minimum contacts with this forum were established when Nippon entered into a joint venture with Sartomer Company, Inc., and had various contacts with companies located within this state. Applying Kubik, supra, the proper inquiry is whether Nippon’s conduct was such that it should reasonably anticipate being haled into court in Pennsylvania. The specific inquiry is whether Nippon purposefully directed its activities at residents of Pennsylvania and purposefully availed itself of the privilege of conducting activities within Pennsylvania, thus invoking the benefits and protection of its laws.

In making this determination we note that none of Nippon’s activities relate, in any way, to the product (L-tryptophan) appellant claims caused her injuries. Appellant avers that the L-tryptophan in the weight-loss products she ingested was provided (in part) by Food Science, Corporation, a New Jersey company. Food Science Corporation obtained the ingredient from an American company known as Chugai Boyeki America who obtained it from Chugai Boyeki Tokyo. It was this last company, Chugai Boyeki Tokyo, who actually purchased it from the manufacturer, Nippon. As pointed out by the appellee, there is no direct chain of distribution between Nippon’s sales of L-tryptophan and any United States company.

Upon review of this record, before finding that jurisdiction is appropriate, we believe that the required “minimum contacts” should have some connection to, at least, the enterprise involved in causing the claimed injury. Here, the alleged injuries were claimed to be caused by L-tryptophan, an ingredient in the weight-loss products consumed by appellant. We specifically' note that appellee apparently never sold L-tryptophan to any United States (let alone Pennsylvania) company; that Nippon did not advertise the product in the U.S.; that no agent of the appellee ever visited the Commonwealth regarding L-tryptophan sales; and that, according to the appellant, the L-tryptophan allegedly manufactured by Nippon went through at least four different enterprises before ending up in the hands of appellant. Even when we examine all of appellee’s contacts with this state (even those completely unrelated to the product L-tryptophan) we note that Nippon has no office here; is not qualified to do business here; and owns no property nor does it maintain a bank account in this state. Under the circumstances presented we find that Nippon’s conduct was not such that it should reasonably anticipate being haled into court here. The activities outlined do not suggest that Nippon “purposefully directed its activities” towards Pennsylvania, thus invoking its benefits and protection. Accordingly, on the record before us, we do not find that minimum contacts were established between Nippon and this Commonwealth.

Although we need not make this determination (having found insufficient minimum contacts) further support for the denial of jurisdiction is found when we consider whether Nippon’s activities are such as to make it reasonable and fair to require it to conduct its defense in Pennsylvania. We have previously outlined some of the factors we must consider, i.e. the burden on the appellee; the interests of the appellant and the forum state; the interests of the interstate judicial system and the shared interests of the several states. Kubik v. Letteri, supra. We find that it is would be unfair to require this appellee to defend a case in this forum where none of the enterprise’s activities which allegedly gave rise to the cause of action occurred.

Even though appellant has not established that this forum has specific jurisdiction over appellee Nippon, the court below could still have exercised general personal jurisdiction if it had been shown that Nippon carried on a continuous and substantial (or systematic) part of its business within this Commonwealth. See: Skinner v. Flymo, Inc., 351 Pa.Super. 234, 505 A.2d 616 (1986).

After review of the record before us, we find that the activities of Nippon, as elaborated in the earlier part of this opinion, do not evidence a “continuous and systematic” doing of business in this Commonwealth. Nippon has no manufacturing facilities, offices, or real or personal property in this state. The contact alleged, i.e., the meetings, visits and the formation of a joint venture with a Pennsylvania corporation, do not evidence, to this court, that Nippon carried on a continuous, systematic (or substantial) part of its business within this state. See: Skinner v. Flymo, supra. Accordingly, Pennsylvania cannot exercise general jurisdiction over it.

Order affirmed.

      . Appellant states that L-tryptophan is a synthetic product manufactured through the use of bacteria and non-natural additives. Appellee, on the other hand, suggests that L-tryptophan is a naturally-occurring, essential amino acid. Without regard to the make-up of the product, both parties agree that it is an ingredient in dietary food products.

      . 42 Pa.C.S.A. § 5322(a)(4), “Bases of personal jurisdiction over persons outside this Commonwealth” provides:

        A tribunal of this Commonwealth may exercise personal jurisdiction over a person ... who acts directly or by an agent, as to a cause of action or other matter arising from such person:
      (4) Causing harm or tortious injury in this Commonwealth by an act or omission outside this Commonwealth.

      . Kayaku Sartomer Company, a Japanese company.

      . 42 Pa.C.S.A. § 5301(a)(2)(iii) provides:
      (a) General rule. — The existence of any of the following relationships between a person and this Commonwealth shall constitute a sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to exercise general personal jurisdiction over such person, or his personal representative in the case of an individual, and to enable such tribunals to render personal orders against such person or representative:
      * * * * * *
      (2) Corporations.—
      i¡¡ ‡ ‡ $
      (iii) The carrying on of a continuous and systematic part of its general business within this Commonwealth.