author: CIRILLO, President Judge: DEL SOLE, Judge,

text:
    515 A.2d 33
    In re ADOPTION OF K.L.R.F. Appeal of Victoria Red Fox WOODS, Natural Mother.
    Superior Court of Pennsylvania.
    Argued Jan. 30, 1986.
    Filed Sept. 8, 1986.
    Petition for Allowance of Appeal Granted Feb. 24,1987.

      James P. O’Connell, Aliquippa, for appellant.
    Before CIRILLO, President Judge, and DEL SOLE and BECK, JJ.
   CIRILLO, President Judge:

This is an appeal from an order terminating the parental rights of appellant. Appellant is an American Indian. The child involved is also an American Indian. Appellant was the adoptive parent of the child until the hearing court terminated her parental rights. This case is governed by the Federal Indian Child Welfare Act of 1978 (hereinafter “the Act”) and is one of first impression in this state. After careful review of the record in this case and an analysis of the governing federal statute, we agree with appellant that reversal is required.

The Act was designed to promote a two-fold national policy: the protection of the best interests of Indian children, and the promotion of stable and secure Indian tribal entities. 25 U.S.C.A. § 1902. The Act establishes minimum federal standards applicable to child custody proceedings in order to prevent the separation of Indian children from family and tribal heritage. As noted by one of the few courts faced with the task of interpreting the provisions of the Act:

Hearings conducted in 1974 before the Senate Committee on Indian Affairs revealed a pattern of discrimination against American Indians in child welfare and child custody. Testimony indicated that for decades officials had removed a disproportionately large number of Indian children from their homes and reservations, and had placed them in non-Indian homes and that many of the removals were unwarranted because officials showed too little deference to Indian cultural norms and denied due process in child custody proceedings. These practices deprived many children of their tribal and cultural heritage.
To reverse this erosion of Indian family life, Congress enacted the Act. See H.R.Rep. No. 1386, 95th Cong., 2d Sess. 8, reprinted in [1978] U.S.Code Cong. & Ad.News 7530.

Matter of Appeal in Pima County Juvenile Action No. S-903, 130 Ariz. 202, 635 P.2d 187 (App.1981).

The Act is based on the fundamental assumption that it is in the Indian child’s best interest that its relationship to the tribe be protected. Pima, supra; see also Indian Child Welfare Act of 1978: Provisions and Policy, 25 S.O.L.Rev. 98 et seq. (1980).

The Act defines certain procedures to be followed in state court proceedings involving Indian children and, as discussed below, provides a mechanism whereby an Indian parent may withdraw his or her consent to a foster care placement and effect a return of the Indian child. Appellant contends that this statutory mechanism was ignored or misapplied in the instant case and challenges the hearing court’s construction of that portion of the Act. As a corollary, appellant urges that the spirit and intent of the Act were ignored. Appellant also contends that the trial court erred in denying petitions to transfer the case to the tribal court pursuant to 25 U.S.C.A. § 1911(b).

The facts of this case are extremely complex. They may be summarized as follows. Appellee is a Caucasian residing in Beaver County, Pennsylvania, along with the Indian child who is the subject of this action, another Indian child whom she has adopted, and a Caucasian adopted child. Appellant was, until the hearing court terminated her parental rights, the adoptive Indian parent of the child. Appellant and the child are both enrolled as members in the Cheyenne River Sioux Tribe whose reservation is located in South Dakota. The child was born on the reservation in 1979.

Appellee’s first contact with appellant was in 1980 when an Indian child was placed with appellee for purposes of adoption. This adoption was finalized in 1981. Prior to that time appellant contacted appellee to ask her to adopt a second child, who is the subject of the present action. Appellee obtained custody of the child on November 17, 1981, at which time appellant provided her with a written notice that appellant was to have “temporary and complete custody” of the child.

In March, 1982, appellee filed an adoption petition in the Cheyenne River Sioux Tribal Court in South Dakota for the adoption of the child. This petition was withdrawn at the request of appellant. In May, 1982, and again in August, 1982, appellant informed appellee that she wanted appellee to adopt the child. In the fall of 1982, appellee’s attorney mailed consent forms to appellant and the adoptive Indian father of the child. The adoptive Indian father is not a party to this appeal. The father indicated that he would not consent to the adoption. Appellant and the adoptive Indian father were either divorced or separated at this time.

In November, 1982, appellant wrote to appellee stating that she might have to ask that the child be returned, but did not request a return at that time. During November, 1982, appellant indicated to appellee in writing and in a telephone conversation that the reason for her abruptly altered desire with regard to the adoption was that she feared that the adoptive Indian father might obtain custody of the child.

Between November, 1982 and March, 1983, appellant informed appellee on three different occasions that she was planning to come to Pennsylvania to retrieve the child. Each time, she changed her mind and did not make the trip. In February, 1983, appellant indicated in a letter that she still had not decided whether to take the child back. In March, 1983, appellant again stated that she planned to come to Pennsylvania but when asked by appellee’s husband whether she intended to take the child, she responded that she wished to talk with him.

The court found “no direct proof” that appellant traveled to Pittsburgh to claim the child in March, 1983. As stated by the court in a footnote to its opinion:

Although counsel for Respondent states in his brief at p. 2 that V.R.F.W. did travel to Pennsylvania in March, 1983, to get her daughter, we do not believe the evidence is so clear. The only testimony in this regard is that of D.A.E. also stated that it was her opinion that if V.R.F.W. did come to Pittsburgh, she did not leave the airport or call the E.’s attorney; she did leave a message at the E.’s home stating that she was in Pittsburgh. Thus, there is not any direct proof that V.R.F.W. was in Pennsylvania and one can only surmise as to her reason for coming if she did come.

On March 17, appellee and her husband filed an involuntary termination petition in Pennsylvania. On April 12, 1983, appellant executed a revocation of the temporary guardianship. This information was conveyed to appellee’s counsel by letter dated April 18, 1983. On April 19, 1983, appellant filed a petition to transfer the proceedings to the Tribal court. This petition was denied by the Pennsylvania court. Hearings were held on the involuntary termination petition and appellant’s parental rights were terminated by the order of September 11, 1984. Appellant took no part in the termination proceedings although she was represented by counsel.

We begin our analysis by noting that appellant does have standing to rely upon and demand compliance with the provisions of the Act. “Parent” is defined in § 1903(9) as:

[A]ny biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the unwed father where paternity has not been acknowledged or established.

By the statute’s definition of “parent”, appellant, although not the natural parent of the Indian child, is the adoptive parent of the child, and as such qualifies as a parent entitled to seek the protections afforded by. the Act.

We turn next to appellant’s contention that the hearing court ignored or misconstrued certain provisions of the Act which require the return of an Indian child to its parents upon the parents’ withdrawal of consent to a foster care placement. Section 1913(b) provides that:

Any parent or Indian custodian may withdraw consent to a foster care placement under State law at any time and, upon such withdrawal, the child shall be returned to the parent or Indian custodian.
Section 1903(l)(i) defines “foster care placement” as: [A]ny action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated.

(Emphasis added). Appellant executed a revocation of the custodial arrangement on April 12, 1983. This information was conveyed to counsel for appellant on April 18,1983. In holding that § 1913(b) was inapplicable to the facts of the instant case the hearing court stated:

We cannot help but notice that these two provisions are contradictory; one provides that consent can be withdrawn at any time with regard to a foster care placement; and the other just as explicitly states that in a foster care placement, the parent or Indian custodian cannot have the child returned upon demand. We need not resolve this inconsistency in the case before us. However, we note that if § 1903 is in fact what the legislature intended the definition of “foster care placement” to be, then § 1913(b) can be given no effect because a foster care placement by definition precludes the possibility of a parent being entitled to the return of the child upon demand. If § 1903 is construed to be erroneous with regard to the parent’s ability to demand return of the child and § 1913(b) is construed to be a valid provision, § 1913 still would not apply to the instant case because the placement which was made was intended to be permanent; adoption was the ultimate objective. Section 1913(b) applies only to temporary placements.

We construe § 1913(b) as applying to situations such as the instant case, wherein a consensual foster care placement was made in the first place and there is no inherent bar to a withdrawal of the consent. In so doing, we are guided by the presumption that the drafters of the statute did not intend a result that is absurd or impossible of execution, McKinney v. Board of Commissioners of Allegheny County, 488 Pa. 86, 410 A.2d 1238 (1980); and the presumption that the drafters did intend the entire statute to be effective and certain. In re Borough of Lemoyne, 176 Pa.Super. 38, 107 A.2d 149 (1954). Further, statutes enacted to benefit American Indians must be liberally construed with all doubts resolved in favor of the Indian seeking its benefits or protections. Preston v. Heckler, 734 F.2d 1359 (9th Cir.1984); Bryan v. Itasca Co., Minnesota, 426 U.S. 373, 96 S.Ct. 2102, 48 L.Ed.2d 710 (1976). With these principles in mind, we cannot conclude that the drafters of the Act intended § 1903(l)(i) and § 1913(b) to interact in such a way as to nullify the withdrawal of consent provision in § 1913(b). Therefore, we hold that the definitional language in § 1903(l)(i) has no effect upon an Indian parent’s ability to demand a return of the child pursuant to § 1913(b).

We agree with the hearing court that the right to withdraw consent pursuant to § 1913(b) exists only in temporary placement situations. However, we do not agree with that court’s conclusion that the placement in the instant case was permanent simply because adoption may have been, at one time, the “ultimate objective” of the parties. If parental rights have not been terminated, settled Pennsylvania case law establishes that consent to adoption may be withdrawn at any time before the entry of the final decree of adoption. In re Adoption of R.W.B., 485 Pa. 168, 401 A.2d 347 (1979). See also Commonwealth ex rel. Grimes v. Yack, 289 Pa.Super. 495, 433 A.2d 1363 (1981). Therefore, a purely consensual placement is, by necessary implication, merely temporary for the purposes of § 1913(b) until such time as a final decree fixing parental rights and awarding permanent custody is entered.

The facts of this case support our holding that the placement was merely temporary. The hearing court specifically found that appellant, on or about November 17, 1981 “... provided [appellee] with a written notice that [appellees] would have temporary and complete custody of K.L.R.F.” (Emphasis added). The hearing court also found as a fact, that it was appellees’ understanding, based upon conversations with appellant, that the custodial arrangement was to be “temporary” only from the standpoint that upon completion of the adoption proceeding, appellees’ custody would be permanent. This, however, does not change the temporary status of the placement for the purpose of applying § 1913(b) because of the ever present risk that appellant might change her mind at any time and withdraw her consent to the custodial placement, the adoption, or both. Indeed, even if the initial arrangement could be considered “permanent”, and thereby not subject to the mandate of § 1913(b), any such permanence ended during the period between November, 1982 and March, 1983. The hearing court found that during this period appellant informed appellees by letter of her “... abruptly altered desire with regards to the adoption” and also that appellant stated, on three occasions, that she was planning to travel to Pennsylvania to retrieve the child. Obviously, the custodial situation changed rapidly from one of relative stability to one which, at best, was tenuous and temporary during the five months preceding appellees’ involuntary termination action. Adoption was no longer appellant’s ultimate objective.

We hold that § 1913(b) applies to the case herein and, accordingly, that appellant had the right and ability to withdraw her consent to the placement and to effect an immediate return of the child. In so doing, we are mindful of the fact that K.L.R.F. will be uprooted from her home and familiar surroundings. This makes our task all the more difficult. However, the mandate of § 1913(b) is clear, as are the principles and policies underlying the Act itself. The overriding concern of Congress was the maintenance of the family and tribal relationships existing in Indian homes. Matter of Adoption of Baby Boy L., 231 Kan. 199, 643 P.2d 168 (1982). The Act is based upon the fundamental assumption that it is in the Indian child’s best interest that its relationship to the tribe be protected. Matter of Appeal in Pima County Juvenile Action No. S-903, 130 Ariz. 202, 635 P.2d 187 (App.1981). The Act unquestionably provides a higher standard of protection to the rights of Indian parents in termination proceedings. Pima, supra; E.A. v. State, 623 P.2d 1210 (Alas.1981). To promote the purposes of the Act, Congress saw fit to include § 1913(b), which clearly allows Indians to withdraw their consent to a preadoptive or foster placement. This is exactly what appellant did. As stated by the Court in Pima, supra in construing § 1913(c). which grants a similar right of withdrawal:

When an Indian child within the purview of the Act is involved, adoption agencies and prospective adoptive parents must be held to assume the risk that a parent such as appellant might change her mind before the adoption is finalized.

Id. 130 Ariz. 202 at 208, 635 P.2d 187 at 192.

The order terminating appellant’s parental rights is set aside. The case is remanded to the hearing.court with instructions to enter an appropriate order directing appellee to return appellant’s child to appellant.

DEL SOLE, J., files a concurring opinion.

BECK, J., dissents.

DEL SOLE, Judge,

concurring:

I agree with the majority that the custodial arrangement under the facts of this case was temporary for the purposes of applying § 1913(b) and therefore Appellant had the right to withdraw her consent to the placement. The order terminating Appellant’s parental rights must therefore be set aside.

I believe, however, that the refusal of the hearing court to transfer the proceedings to the tribal court pursuant to 25 U.S.C.A. § 1911(b) merits discussion.

Appellant, and subsequently the Cheyenne River Sioux Tribal Court sought transfer of these proceedings to the Tribal Court based on the Indian Child Welfare Act (ICWA) 25 U.S.C.A. § 1901 et seq. The Act states in pertinent part:

Transfer of proceedings; declination by tribal court. In any State court proceeding for ... termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child’s tribe, the court, in the absence of gbod cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe ... upon the petition of either parent or the Indian child’s tribe____

25 U.S.C.A. § 1911(b).

On January 9, 1984, the trial court denied the Appellant’s application for transfer of the proceedings finding good cause to deny transfer and on September 11, 1984, the application of the tribe for transfer was denied for the reasons set forth in the January 9, 1984 order.

I agree with the trial court that what constitutes “good cause to the contrary” has not been definitively established and I have located no Pennsylvania case law interpreting the ICWA. However, other jurisdictions and authority have considered the term. The Arizona Court of Appeals in Matter of Appeal in Pima County, 130 Ariz. 202, 635 P.2d 187 (App.1981) found the trial court should have deferred to tribal jurisdiction as:

Evidence concerning the mother’s fitness as a parent would be more readily available in Montana. Qualified expert witnesses as to whether custody in the mother would likely result in serious emotional or physical damage to the child would also be more accessible as expert witnesses lacking knowledge of the tribal culture and values may not be “qualified” to give an opinion.

Id. at 207, 635 P.2d at 192.

The court further indicated that:

Accessibility to proof would seem to be the principal factor on which state courts could rely to retain jurisdiction. Indian Child Welfare: A Jurisdictional Approach, 21 Ariz.L.Rev. 1123, 1143 (1979). The author points out: (1) If the tribe desires that the case be heard by the tribal court, distance from the reservation in and of itself would not be sufficient “good cause” for the state court to refuse to transfer the proceedings despite the expense, and (2) in most instances an Indian parent will call witnesses residing on the reservation to rebut evidence as to parental unfitness and the state court must make a determination as to which party is most able to bear the expense of producing witnesses in distant courts. The only justification for retention of jurisdiction in Arizona is the presence of the child and the prospective adoptive parents. However, the issue in these termination proceedings is not the fitness of the adoptive parents but rather the unfitness of the parent whose relationship is sought to be severed.

Id. at 206-07, 635 P.2d at 191-192.

But cf. In Interest of J.R.H., 358 N.W.2d 311 (Iowa 1984) (good cause to deny transfer may arise from geographical obstacles).

In the case sub judice the trial court indicated:

Additional help in ascertaining the factors to be included in considering “good cause to the contrary” can be found in 44 Fed.Reg. 24000, 42001 R.G. (i) (1979). Therein, it was stated that good cause would include, but not be limited to the following elements:
1. Whether or not the child’s biological parents were unavailable;
2. Whether or not an Indian custodian has been appointed;
3. How much contact the child has had with the tribe for a significant period of time;
4. Whether or not the child has resided on the reservation for a significant period of time;
5. If the child is over 12 years old, whether he or she has indicated an opposition to the transfer.

(Trial Court Opinion at 9).

Applying these guidelines:

in addition to the fact that there is credible testimony that if the child or the Respondent were to have to travel to South Dakota, the child’s physical and mental health would most likely be seriously impaired, and also considering that the child has had very little conscious association with the tribe and the Indian family during her life, we find there is good cause to retain jurisdiction____

(Trial Court Opinion at 10).

I believe the trial court erred in applying the above listed factors. Those factors constitute an early form of guidelines published by the Secretary of the Interior.

All five criteria that were listed in the earlier version of the guidelines were highly controversial. Comments on the first two criteria were almost unanimously negative— These criteria were criticized as irrelevant and arbitrary____ Although there was some support for the third and fourth criteria, the preponderance of the comment concerning them was critical____
It is recommended that in most cases state court judges not be called upon to determined (sic) whether or not a child’s contacts with a reservation are so limited that a case should not be transferred.

Guidelines for State Courts: Indian Child Custody Proceedings, C. 3. Commentary, 44 Fed.Reg. 67584, 67591 (1979).

The revised Guidelines state:

Determination of Good Cause to the Contrary
(a) Good cause not to transfer the proceeding exists if the Indian child’s tribe does not have a tribal court____
(b) Good cause not to transfer the proceeding may exist if any of the following circumstances exists:
(i) The proceeding was at an advanced stage when the petition to transfer was received and the petitioner did not file the petition promptly after receiving notice of the hearing.
(ii) The Indian child is over twelve years of age and objects to the transfer.
(iii) The evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or the witnesses.
(iv) The parents of a child over five years of age are not available and the child has had little or no contact with the child’s tribe.
(c) Socio-economic conditions and the perceived adequacy of tribal or Bureau of Indian Affairs social services or judicial systems may not be considered in a determination that good cause exists.
(d) The burden of establishing good cause to the contrary shall be on the party opposing the transfer.

Guidelines for State Courts; Indian Child Custody Proceedings, C. 3 Determination of Good Cause to the Contrary, 44 Fed.Reg. 67584, 67591 (1979).

Applying the revised Guidelines to the present case, it is uncontroverted that the tribe has a tribal court; that the proceeding was not at an advanced stage when the petition to transfer was received; the child was under five years of age. Although the child may have had little contact with the tribe, the commentary to the Guidelines, previously mentioned, recommends against state court judges basing a transfer request on a child’s limited tribal contact. The determinative factor under the guidelines therefore would be whether the evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or the witnesses. The trial court indicated that many persons who would be called as witnesses would be from Pennsylvania. However, I agree with the Arizona Court of Appeals that, “the issue in these termination proceedings is not the fitness of the adoptive parents but rather the unfitness of the parents whose relationship is sought to be severed.” Matter of Appeal in Pima County, supra, 130 Ariz. at 207, 635 P.2d at 192. Evidence concerning the parent’s fitness is the relevant inquiry. Transfer of this case to the Tribe pursuant to 25 U.S.C.A. § 1911(b) would have been in my judgment in keeping with the declared policy of Congress “to protect the best interests of Indian children and to promote stability and security of Indian tribes and families ...” 25 U.S.C.A. § 1902. Failure of the hearing court to transfer the proceedings was an abuse of discretion.

      . 25 U.S.C.A. § 1913(b) reads:
      (b) Foster care placement; withdrawal of consent
      Any parent or Indian custodian may withdraw consent to a foster care placement under State law at any time and, upon such withdrawal, the child shall be returned to the parent or Indian custodian.

      . Appellant also raises several other issues, which, in light of our disposition of this issue, are moot and need not be addressed specifically. The issues which we do not address are: (1) whether the hearing court ignored the mandate of 25 U.S.C.A. § 1911(b) by refusing to transfer the proceedings to the tribal court; (2) whether the hearing court ignored 25 U.S.C.A. § 1912(d) by not requiring a showing that appellees took steps to prevent the breakup of the Indian family; (3) whether the hearing court ignored 25 U.S.C.A. § 1912(f) by not requiring the appellees to produce qualified expert witnesses who proved, beyond a reasonable doubt, that serious emotional or physical harm would be done to the child if it was forced to live apart from its tribe; (4) whether appellant’s conduct evidenced a settled purpose of relinquishing her parental claim pursuant to 23 Pa.C.S.A. § 2511(a)(1); and (5) whether 25 U.S.C.A. § 1913(c) affords a basis for appellant’s withdrawal of consent. Although these issues are rendered moot by our holding herein, we note the following for purposes of allocatur. Had our disposition of appellant’s 25 U.S.C.A. § 1913 issue been in favor of appellee instead of appellant, we would have upheld the hearing court’s disposition of all other issues raised and affirmed the order in question on the basis of the hearing court’s scholarly opinion. We part company with the trial court solely on the basis of its disposition of the issue specifically addressed herein.

      . The concurrence would hold that the hearing court erred in refusing to transfer the case to the tribal court. We recognize that the hearing court apparently failed to consider the most recently promulgated guidelines published at 44 Fed.Reg. 67584, 67591 (1979). However, as noted by the concurrence, the guidelines are not binding upon the trial court in its determination of whether "good cause” not to transfer exists. Therefore, under the circumstances present at the time of the petitions, we feel that the court did not abuse its discretion in refusing to transfer the case.

      . Although the Guidelines are not published as regulations and therefore have no binding legislative effect on this court, I find the Department of the Interior’s interpretation of the term "good cause" to be beneficial in considering this matter.


source: Caselaw Access Project

author: ROWLEY, Judge:

license: Public Domain

text:
    515 A.2d 41
    In re ADOPTION OF E.J.W., a minor. Appeal of M.W., natural mother.
    Superior Court of Pennsylvania.
    Argued March 24, 1986.
    Filed Sept. 11, 1986.

      Eileen D. Yacknin, Pittsburgh, for appellant.
    Before ROWLEY, WIEAND and DEL SOLE, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is an appeal from an order of the trial court, sitting en banc, that dismissed the natural mother’s (appellant) exceptions to a prior order which, (1) denied her petition to strike a Report of Intention to Adopt filed by the child’s foster parents (appellees) and (2) denied her motion for summary judgment. Because the orders appealed from are interlocutory, we quash the appeal.

An understanding of the complex procedural history of this case is necessary to a proper understanding of our decision. On November 14, 1983, appellees, who have been providing foster care for the minor child, E.J.W., filed a Report of Intention to Adopt pursuant to the Adoption Act. Appellant, the child’s natural mother, petitioned the trial court to issue a citation to show cause why the report should not be stricken. The citation was issued and appellees filed an answer thereto. Following oral argument, the court dismissed the citation and denied appellant’s motion for summary judgment by order dated February 14, 1985. By the same order, the court stayed all further proceedings in the Orphans’ Court relating to the Report pending a final custody determination concerning the minor in the Family Division of the Court.

On March 14, 1985, appellant, recognizing that the February 14, 1985 order was interlocutory, filed a motion to amend the order dismissing the citation to include a statement from the trial court, pursuant to 42 Pa.C.S. § 702(b), certifying that the order involved a controlling question of law and that an immediate appeal might materially advance the ultimate termination of the matters raised by the dispute. The trial court denied this motion on March 14,1985, but sua sponte granted appellant leave to file exceptions nunc pro tunc to the order of February 14, 1985.

On March 21, 1985, appellant filed exceptions to the February 14, 1985 order. On March 25, 1985, appellees filed exceptions to the March 14,1985 order claiming that it was error for the court to grant leave to file exceptions nunc pro tunc to the February 14, 1985 order when no such relief had been requested. By order dated May 15, 1985, the trial court sitting en banc sustained the exceptions of appellees to the March 14, 1985 order and struck appellant’s exceptions to the February 14, 1985 order. By the same order (May 15, 1985), the court directed appellant to file, within 10 days, a petition for leave to file exceptions nunc pro tunc to the February 14, 1985 order.

On May 28,1985, appellant filed a petition for leave to file exceptions nunc pro tunc to the February 14, 1985 order. Finally, on September 17, 1985, the trial court entered the order from which this appeal is taken. In its order of September 17, 1985, the trial court (1) granted appellant’s petition for leave to file exceptions nunc pro tunc to its previous order of February 14, 1985; (2) affirmed its previous order of May 15, 1985; (3) dismissed appellant’s exception to its previous order of February 14, 1985 [which exceptions had earlier been stricken by its order of May 15, 1985]; (4) stated that its order was a “final order”, and (5) certified the order for an interlocutory appeal pursuant to 42 Pa.C.S. § 702(b).

The most the appellant could have hoped to achieve by the September 17, 1985 order was an affirmance of the February 14,1985 order dismissing her citation and denying summary judgment. Even though the court had previously stricken the only exceptions ever filed by appellant and even though the court has never affirmed its February 14, 1985 order, we will treat the September 17, 1985 order as dismissing properly filed exceptions on the merits and as expressly affirming the February 14, 1985 order.

Appellant has appealed directly from the September 17, 1985 order and in the appeal substantively challenges the February 14, 1985 order. She argues that the trial court should not have dismissed her citation nor denied her motion for summary judgment. In support of her position, appellant contends that the foster parents who filed the Report of Intention to Adopt in this case have no standing to do so. The Adoption Act, 23 Pa.C.S. § 2531(a), provides that a Report of Intention to Adopt must be filed by any person receiving or retaining custody of a child for the purpose or with the intention of adopting a child. The argument continues that because the foster parents do not have legal custody and received physical custody of the child from Children and Youth Services of Allegheny County, whose legal custody of the child remains temporary until a further order from the Family Division of the court is decreed, the foster parents cannot have received the child for the purpose or with the intent of adopting the child. Therefore, she contends, they lack standing to file the Report of Intention to Adopt.

Appellant also argues that appellees lack standing to file the Report of Intention to Adopt because the report was not filed timely. Section 2532 of the Adoption Act requires that the report be filed within 30 days after receipt of the custody or physical care of the child. In this case, appellees have had physical care of the child since 1978, yet did not file the report until 1983.

Finally, appellant argues that because the Adoption Act does not require that notice of the filing of a Report of Intention to Adopt be given to the natural parents, the Act denies them due process under the United States and Pennsylvania Constitutions. Appellant argues that the notice of intent to adopt triggers an investigation into the background of the child and the natural parents. 23 Pa.C.S. § 2535. Where an intermediary agency such as Children and Youth Services is involved, a report of the intermediary must be filed within six months of the filing of the notice of intention to adopt. Appellant also contends that once the notice of intent to adopt is filed, the caretaker adult can petition for the involuntary termination of the parent’s rights. The filing of a notice of intent to adopt, therefore, interferes with the natural parents familial relationship with the child, and thus the parent must receive notice of the report.

We do not reach these issues raised by appellant, however, because the February 14, 1985 order from which appellant has substantively appealed is clearly interlocutory. Although the trial court characterized the February 14, 1985 order as final, the trial court’s assertion cannot transform an interlocutory order into a final order because the finality of an order is determined by its effect.

An order is considered to be final if it terminates the litigation or precludes further action in the trial court. Dash v. Wilap Corporation, 343 Pa.Super. 584, 495 A.2d 950 (1985); Peterson v. Philadelphia Suburban Transportation Co., 435 Pa. 232, 255 A.2d.577 (1969). It is also final and appealable if: 1) it is separable and collateral to the main cause of action; 2) the right involved is too important to be denied review; and 3) the right is of such a nature that if review is postponed until a final judgment the right will be irreparably lost. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); In re Estate of Georgiana, 312 Pa.Super. 339, 458 A.2d 989 (1983).

The effect of an order dismissing a citation to show cause why a Report of Intention to Adopt should be stricken and staying all proceedings in the Orphans’ Court until a final custody determination in the Family Division is made is not final. It puts no one out of court; it does not terminate the litigation; and it establishes the rights or responsibilities of no one. It is only the initial step in the adoption procedure which, on the facts of this case, can terminate unfavorably to appellant only if Children and Youth Services files, in a separate action, a petition to involuntarily terminate appellant’s parental rights, 23 Pa. C.S. § 2511; In re Adoption of Crystal D.R., 331 Pa.Super. 501, 480 A.2d 1146 (1984), and only if appellant’s parental rights are subsequently terminated.

Moreover, the only effect the filing of the Report of Intention to Adopt can possibly have on appellant is for Children and Youth Services to conduct an investigation into appellant’s and her child’s background as part of their required report of an intermediary. 23 Pa.C.S. § 2533. As Children and Youth Services has had custody of the child and has been working with appellant for numerous years to enable her to regain custody of the child, Children and Youth Services undoubtedly already has as much information concerning appellant and the child, or at least the authority to obtain as much information, as an adoption investigation would produce.

Because a foster parent’s filing of a Notice of Intent to Adopt has virtually no effect on the natural parent who, if she does not consent to the adoption, must have her parental rights terminated prior to the adoption in a separate proceeding with its own procedural and substantive protection of rights, we conclude that the right involved in this case is neither so important that review cannot be denied nor so immediate that the right will be lost if review is postponed. Furthermore, appellant herself considered the February 14, 1985 order as interlocutory by requesting the trial court to modify the February order to include a certification statement so that she could petition the Superior Court for permission to take an interlocutory appeal. And the trial court, too, included in the September 17,1985 order a statement certifying the order for an interlocutory appeal. Therefore, the February 14, 1985 order dismissing appellant’s citation as well as the September 17, 1985 order, which we interpret as an affirmation of the February 14, 1985 order, are interlocutory orders.

Following the March 14, 1985 order refusing to modify the February 14, 1985 order to include an interlocutory certification statement, appellant did not petition the Superior Court for review of the trial court’s order in accordance with Chapter 15 of the Rules of Appellate Procedure. [See also, Butler Education Association v. Butler Area School District, 34 Pa.Cmwlth. 143, 146-47, 382 A.2d 1283, 1284-85 (1978) ]. Instead, appellant followed the instructions of the trial court and filed exceptions to the order which exceptions were subsequently stricken and then dismissed. Neither has appellant petitioned this Court for permission to appeal the interlocutory order of September 17, 1985 pursuant to Pa.R.A.P. 1311. Rather, she has attempted to take a direct appeal from the order which clearly is not final. Therefore, we must quash the appeal.

      . 23 Pa.C.S. § 2101 et seq.

      . The information which the investigation must produce is as follows:
      (1) The name and address of the intermediary.
      (2) The name, sex, racial background, age, date and place of birth and religious affiliation of the child.
      (3) The date of the placement of the child with the adopting parent or parents.
      (4) The name, racial background, age, marital status as of the time of birth of the child and during one year prior thereto, and religious affiliation of the parents of the child.
      (5) Identification of proceedings in which any decree of termination of parental rights, or parental rights and duties, with respect to the child was entered.
      (6) The residence of the parents or parent of the child, if there has been no such decree of termination.

        (7) A statement that all consents required by section 2711 (relating to consents necessary to adoption) are attached as exhibits or the basis upon which the consents are not required.
      (8) An itemized accounting of moneys and consideration paid to or received by the intermediary or to or by any other person or persons to the knowledge of the intermediary by reason of the adoption placement.
      (9) A full description and statement of the value of all property owned or possessed by the child.
      (10) A statement that no provision of any statute regulating the interstate placement of children has been violated with respect to the placement of the child.
      (11) If no birth certificate or certificate of registration of birth can be obtained, a statement of the reason therefor.
      (12) A statement that medical history information was obtained and if not obtained, a statement of the reason therefor.
      23 Pa.C.S. § 2533.


text:
    515 A.2d 45
    ALLSTATE INSURANCE COMPANY, Appellant, v. Paul V. KANE.
    Superior Court of Pennsylvania.
    Argued June 26, 1986.
    Filed Sept. 11, 1986.

      Stephen P. McCloskey, Washington, for appellant.
    Edward J. Balzarini, Pittsburgh, for appellee.
    Before ROWLEY, McEWEN and TAMILIA, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is an appeal from a court order denying appellant’s petition to compel rehabilitation involvement under the Pennsylvania No-Fault Motor Vehicle Insurance Act.

The facts in this case are not in dispute. The appellee, Paul Kane, was involved in a two car accident on April 1, 1984. The appellant, Allstate Insurance Company, is the no-fault insurance carrier for appellee. Appellee suffered serious injuries resulting in permanent spastic paraplegia. Since May of 1984 appellee has been receiving rehabilitative treatment and services from Harmarville Rehabilitation Center and will continue to need such medical treatment in the future. In May of 1985, in anticipation of appellee’s expected request for payment of home modification expenses incurred in the construction of a new home, appellant requested of appellee the following, in relevant part:

1) a meeting between Barb Sallo (appellant’s representative) and appellee and his wife;
2) to permit Barb Sallo to obtain follow up information from appellee’s treating physicians at Harmarville, especially regarding home care and special equipment needs;
3) to permit Barb Sallo to attend all Harmarville staff conferences regarding appellee’s treatment, with appropriate input;
4) some documentation of exactly what appellee expected appellant to pay for with respect to home modification, with an itemization and dollar amounts and an explanation of why the modifications were necessary;
5) Barb Sallo’s involvement with the architect and builder with respect to the home modification claim.

Appellee refused the request and in August of 1985 appellant filed a petition to compel rehabilitation involvement under the No-Fault Act, sections 404 and 405. 40 P.S. § 1009.404 and § 1009.405. Argument was heard on the petition at a hearing on October 7,1985. That same day the court entered an order denying the petition. This appeal followed.

Appellant presents a single issue for review: whether sections 404 and 405 of the No-Fault Act permit an insurance carrier to use its own representative to monitor and have limited involvement in the claimant’s expenditures on medical treatment, rehabilitation and home modifications? It appears that there is no case law on this precise subject and that this question is one of the first impression in Pennsylvania.

The Pennsylvania No-Fault Act was adopted in an effort “to establish at reasonable cost to the purchaser of insurance, a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims.” 40 P.S. § 1009.102(b). The sections of the Act in question, 404 and 405, provide that upon application to the court any interested person may present evidence to establish the insurer’s responsibility for the cost of required medical needs the claimant is currently undergoing or will undergo in the future. 40 P.S. §§ 1009.404 and 1009.405. Sections 404 and 405, respectively, establish the cost of a specified procedure or treatment for rehabilitation and the cost of a specified course of rehabilitative occupational training. Id. Section 406 generally provides for sanctions to be administered where the injured person unreasonably refuses to comply with the court ordered treatment or training, issued pursuant to sections 404 and 405. 40 P.S. § 1009.406.

At the outset, appellant agrees that nowhere in the No-Fault Act as a whole or in sections 404 and 405 is there specific language granting it the right to participate in the course of appellee’s rehabilitation. Moreover, appellant is not invoking these sections in order to contest the effectiveness, reasonableness or propriety of appellee’s rehabilitation. In effect, appellant requests this Court to read into sections 404 and 405 an implied right, extending beyond the right to compel a specific course of rehabilitation or training, permitting appellant to become involved in the treatment itself by monitoring and in a limited sense participating in the administration of the rehabilitation and home modifications.

Appellant points to the purpose of the No-Fault Act and the logical implications of sections 404 and 405 to derive their construction of these sections. Appellant argues that since sections 404, 405 and 406 explicitly grant an insurer the right to compel a specific course of rehabilitative treatment or training in accordance with the objective of maintaining a low-cost insurance system, it necessarily follows that within the scope of that right is the authority for appellant’s limited involvement in appellee’s rehabilitation. As further support for this proposition, appellant cites to D. Shrager, The Pennsylvania No-Fault Motor Vehicle Insurance Act, (1983 Supplement), where it is noted that an insurer may also utilize sections 404 and 405 for their own purposes. The insurer may utilize these sections to assert some control over the claimant’s medical treatment, and thereby limit future basic loss benefits, where the insurer believes a particular course of rehabilitation or occupational training will benefit a claimant who is undergoing lengthy treatment without apparent significant improvement. Id. at § 1:7.3. Appellant interprets this comment to mean that the control they are authorized to assert over appellee includes monitoring and involving themselves in the course of appellee’s rehabilitation. We do not agree.

Our review of the No-Fault Act does not convince us that appellant’s confusion follows logically or necessarily. For the claimant’s purposes, sections 404 and 405 are generally invoked where long-term treatment is required and “are in effect back-up and enforcement procedures to provide for rehabilitation particularly in circumstances where the accident victim is financially unable to afford appropriate treatment or, ... [where] the obligor fails to assume responsibility for such treatment.” Shrager, The Pennsylvania No-Fault Motor Vehicle Act (1979), at § 1:7.3. For the insurer’s purposes, sections 404 thru 406 may be used to ensure that the claimant in fact received treatment which will cure him most effectively and thus lessen future loss benefits. In short, the intended purpose and function of these sections is to ensure that appellee receives proper treatment which is promptly paid for. The right to control, even in a limited sense, the administration of appellee’s rehabilitation is not synonomous with or derivable from the right to control the type of treatment appellee receives. We do not read these sections to impliedly grant appellant the right to participate in the administration of the rehabilitative process; that aspect of appellee’s rehabilitation is not statutorily or logically within the scope of the insurer’s function and authority, but rather, it is within the province of the medical profession. Thus, we do not find in the No-Fault Act a sufficient basis for construing sections 404 and 405 in the manner appellant urges.

Appellant further contends that their request for involvement is a limited one and not so farfetched, and this Court should not be unduly prejudiced by the fact that the legislature did not include a specific provision for such involvement since so many important provisions were left out or are in need of clarification by this Court. Appellant asserts that two important objectives would be served by allowing their involvement during the course of appellee’s rehabilitation and home modification rather than after: 1) to facilitate the low-cost objective of the No-Fault Act by permitting the no-fault carrier to have input before the costs are incurred; and 2) to permit the no-fault carrier, one of the two parties to the insurance contract, to provide meaningful input into the rehabilitative process and the home modification project.

For several reasons we find appellant’s argument unpersuasive. The fact that this type of provision is absent in the No-Fault Act is significant because it raises the question of why it was omitted. We think a plausible answer may be that the legislature did not determine that it was necessary. Appellant’s request for only limited involvement is not so desirable or feasible given the very difficult task of defining and determining what “appropriate” input is, or how far “limited” involvement reaches. Thus, it is questionable whether appellant’s involvement, even if economically more efficient, would be more of a hinderance than a help with respect to the primary purpose of ensuring that appellee receives prompt and adequate treatment. Moreover, we are not convinced that appellant’s involvement, in addition to the existing provisions available to them, is medically or economically necessary to achieve the objectives of the No-Fault Act. We must assume that appellant can receive proper and adequate treatment and advice, at a reasonable cost, without appellant’s intervention. Should appellant have any doubts, they can invoke sections 404 and 405 to prove that another type of treatment or training is better. Likewise, if appellant feels the cost of the present treatment is unreasonable, 106 of the No-Fault Act provides an appropriate remedy. 40 P.S. § 1009.106. Thus, we hold that the No-Fault Act does not contain any implied authority for appellant’s involvement in appellee’s rehabilitation and home modifications.

Order affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, § 101 et seq.; 40 P.S. § 1009.101 et seq. (hereinafter cited as the No-Fault Act) (repealed 1984).


text:
    515 A.2d 48
    Barbara KELLY and Richard A. O’Neal, individually and on behalf of all others similarly situated, Appellants, v. COUNTY OF ALLEGHENY and Allegheny County Institution District.
    Superior Court of Pennsylvania.
    Argued March 25, 1986.
    Filed Sept. 15, 1986.

      Michael P. Malakoff, Pittsburgh, for appellants.
    Robert Weinheimer, Pittsburgh, for appellees.
    Before ROWLEY, WIEAND and DEL SOLE, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

In this appeal from an Order denying class certification, a single issue is presented for review: whether class certification may be denied under Pa.R.C.P. 1708(a)(7) solely because the average individual claim is for a small dollar amount where the potential costs and expenses of the litigation are not disproportionate to the total class claims aggregating over $150,000 with interest. Because the record reveals that the trial court abused its discretion in denying certification, we reverse.

Appellants allege that in 1979, 1980 and 1981, the appellees (County) erroneously deducted Social Security contributions from sick pay benefits paid to appellants, employees of the County during the relevant time period. After the error was discovered, the County contracted with CTA, Ltd. to obtain a refund (or credit) of the Social Security payments. The County agreed to pay CTA 25% of the amount collected in exchange for CTA’s services. After CTA recovered the payments, the County refunded to appellants the amounts previously withheld, less the 25% fee paid to CTA.

Appellants filed a class action complaint against the County on behalf of themselves and all others similarly situated to recover the amount deducted by the County from their refund and paid to CTA. They alleged that the County’s payment to CTA constituted a breach of the contract embodied in an Employee Benefit Plan Booklet and summarized in an Employee Benefits Summary Sheet. R.R. 12a-19a. Appellants filed a motion for class certification, Pa. R.C.P. 1710(a), and an evidentiary hearing was held on the motion. Pa. R.C.P. 1707(c). By subsequent order, the trial court denied appellants’ motion. This appeal followed.

In an opinion accompanying its order, the trial court considered the five prerequisites to a class action set forth in rule 1702 and, because appellants sought money damages only, the seven criteria set forth in rule 1708(a). The trial court determined that appellants had satisfied all the requirements for certifying the class except the requirement of 1708(a)(7). That section provides

In determining whether a class action is a fair and efficient method of adjudicating the controversy, the court shall consider among other matters the criteria set forth in subdivisions (a), (b) and (c).
(a) Where monetary recovery alone is sought, the court shall consider
(7) whether it is likely that the amount which may be recovered by individual class members will be so small in relation to the expense and effort of administering the action as not to justify a class action.

The explanatory note following rule 1708 points out that subdivisions (1) to (5) under 1708(a) are taken almost verbatim from federal rule 23, but that subdivisions (6) and (7) are two additional criteria not set forth in the federal rule. The note provides the following additional comments relative to 1708(a)(7).

The second additional criterion permits the court to consider whether the damages which may be recovered by individual class members will be so small in relation to the expense and effort of administering the action as not to justify a class action, with its attendant burdens on the judicial system and judicial manpower.
The Uniform Class Action Act in Sec. 3(a) uses somewhat similar criteria requiring the court to consider whether in view of the complexities of the issues and the expenses of the litigation the claims of the individual class members are insufficient to afford significant relief to the members of the class. This criterion points up a policy question on which opinion between plaintiffs and defendants is sharply divided.
In many consumer class actions the individual amounts may be very small, but the aggregate may be large and maintenance of the class action might have a deterrent effect on future violations by the defendant. Also, if the defendant’s conduct is egregious, compelling refunds, even of inconsequential amounts, may be desirable from a public policy point of view. Perhaps the remedy may be legislative rather than procedural.
When the action is brought for monetary recovery only, the court is to consider all seven of these criteria.

The trial court found that the aggregate amount sought by the potential class would be $141,931 and estimated that the average recovery for an individual class member would be $13.61, subject to adjustment based on several variables. The trial court noted that (a)(7) was significant in the determination of certification because appellants sought only monetary recovery. After noting generally the various costs associated with the maintenance of a class action lawsuit, including the costs of notice, locating the class members, distributing the possible awards, and counsel fees, the court concluded that

Since the amount which the individual class member would recover, if they prevailed, would be trivial, and the cost of prosecuting and defending the claim would be disproportionately large to the size of the claim, and no particular benefits of sufficient quantity or quality would accrue to the class members or the public, we conclude that certification of this action as a class action is not justified.

Trial court’s op. at 10. The court also found that no evidence was presented that the County’s conduct was egregious or that it raised an issue touching on public policy concerns. See Pa. R.C.P. 1708 Explanatory Note—1977, supra.

Appellants argue that the potential costs of the litigation are not disproportionate to the total class claims aggregating over $150,000 with interest and, therefore, the trial court abused its discretion in refusing to certify the action as a class action. They first maintain that (a)(7) does not permit a trial court to refuse to certify a class if the individual claims are small; rather, the rule permits denial of certification only if the anticipated costs of the litigation would be expected to consume most of any possible recovery and public policy would not be served by a class action. Appellants contend that it is the aggregated individual claims that are to be compared with the anticipated costs of the litigation and not the individual claims.

Secondly, appellants argue that there is no evidence of record to indicate that they failed to satisfy (a)(7). By stressing the trial court’s findings that all other requirements for certification have been met, appellants submit that the particulars of their case demonstrate that the costs of prosecuting the action would be minimal. For example, 1) liability can be established with little, if any, discovery and the case could probably be decided on a motion for summary judgment; 2) notice could be avoided, or accomplished at little cost, by posting a notice in County office buildings or enclosing notice in the class members' paychecks (of course, this could only apply to current employees); 3) the members of the class have already been located by the County when they paid their employees their Social Security refund, see Janicik v. Prudential Insurance Co. of America, 305 Pa.Super. 120, 451 A.2d 451 (1982); Haft v. United States Steel Corp., 305 Pa.Super. 109, 451 A.2d 445 (1982), thus reducing the cost of locating class members; 4) the costs of disbursing the amount recovered (i.e., writing checks) would be minimal, and 5) attorneys’ fees could be controlled by the trial court under Pa.R.C.P. 1716.

Appellants also argue that the case would impose little burden on the judicial system and point to the trial court’s determination that the underlying issues were neither many nor complex. Lastly, appellants submit that public policy supports certification because the Commonwealth has a long-standing commitment to the protection of employee wages.

The County argues that the express terms of (a)(7) require the trial court to consider the amounts which may be received by the individual class member, not the aggregate amount claimed. The County agrees with the trial court’s conclusion that the amount sought by the individual class members will be so small in relation to the expense and effort of administering the action as to not justify a class action. As to appellants’ second argument, the County submits that the expenses considered by the trial court do not require proof, but may be assumed by the trial court as a normal and expected component of maintaining a class action.

In Janicik v. Prudential Insurance Co. of America, this Court set forth the applicable standard of review. “A lower court’s decision concerning class certification is a mixed finding of law and fact entitled to ‘appropriate deference’ upon appeal— [A] lower court’s order concerning class certification will not be disturbed on appeal unless the court failed to consider the requirements of the rules or abused its discretion in applying them.” Id. 305 Pa.Super. at 127, 451 A.2d at 454 (citations omitted). In the present case, it is not argued that the trial court failed to consider the applicable rules. The only issue raised on appeal is whether an abuse of discretion occurred when the court applied (a)(7) to the case at bar. We must also bear in mind that it is the “policy of our Commonwealth that ‘decisions in favor of maintaining a class action should be liberally made.’ ... Moreover, courts in class certification proceedings regularly and properly employ reasonable inferences, presumptions, and judicial notice.” Janicik, 305 Pa.Superior Ct. at 128, 451 A.2d at 454 (quoting Bell v. Beneficial Consumer Discount Co., 241 Pa.Super. 192, 205, 360 A.2d 681, 688 (1976) (citations omitted).

Turning to the parties’ arguments, we agree with the County that appellants have incorrectly focused on the aggregate amount which they seek. Pa. R.C.P. 1708(a)(7) states that the trial court is to consider the amount which the individual class members may recover. Thus, the relevant figure is $13.61 and not $141,931. Our inquiry, however, does not end there, for the rule requires the trial court to consider the relation between the amount the individual class members may recover and the expense and effort of administering the action. After having paid appropriate deference to the trial court’s decision, we are compelled to conclude that an abuse of discretion occurred because in this case a consideration of the costs of the lawsuit in relation to the amount individual members stand to recover leads to the conclusion that a class action is justified.

In both Janicik and Haft this Court addressed the issue of whether the party seeking certification had satisfied the requirement of 1708(a)(7). In Janicik, this Court determined that the potential class members sought more than trivial sums and that the cost of notice to the class members would not be disproportionate. Thus, (a)(7) was satisfied. Id. 305 Pa.Super. at 145, 451 A.2d at 463. In Haft, the trial court held that the evidence was insufficient for it to determine whether the individual class members’ recoveries would be too small to justify the costs of the action. Based on the facts of record, this Court rejected the trial court’s conclusion and determined that the potential individual recoveries would be more than de minimis. Id. 305 Pa.Super. at 119, 451 A.2d at 450. As to the potential costs of the lawsuit, the Court noted

All class members are present or former employees of appellee, and thus the costs of identifying and notifying them is unlikely to be unduly burdensome. Accordingly, the amounts which may be recovered by the individual class members will be large enough in relation to the expenses and effort of administering the action as to justify a class action. Pa.R.Civ.P. 1708(a)(7).

Id. The present case is similar to Haft in that all class members are present or former employees of the County. Further, the County located the members of the class when it disbursed the original refund. Thus, the costs of notice and locating the class members would be minimal.

Rule 1708(a)(7) requires that the individual recovery be so small in relation to the expense and effort of administering the action that a class action would not be justified. We do not view the potential recovery by itself. Here, the potential expenses and effort of administering the action are small, thus they would not consume the recovery. This leads us to conclude that a class action would be justified under the facts of the case. In Felger v. First Federal Savings & Loan Association, 3 D. & C.3d 70 (1975) Judge Lyon rejected a de minimus objection to class certification by noting that

this argument overlooks the fact that a common element in most class actions is the existence of a claim too small to warrant action by the individual members.' Individual remedies in such cases would be illusory and the costs involved to the individual plaintiffs would often prevent the claimants from obtaining relief. It is only by joining these small claims together that such parties can obtain redress for collective wrongs which, viewed separately, may appear trivial.

Id. at 87-88.

Accordingly, the trial court’s order denying certification is reversed and the case is remanded to the trial court for further proceedings. Jurisdiction is relinquished.

      . An order denying class certification is final and appealable. Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975).

      . Appellants’ other theories of recovery were dismissed upon preliminary objections by the trial court in separate orders not presently before us.

       The only persons who could benefit from this action as a class action, if the class should prevail, would be counsel for the parties.

      . The County attempts ,to raise several issues of alleged trial court error which appellants sought to respond to in a reply brief. The County asserts that these issues are "intertwined” with the trial court’s determination that the requirements of 1708(a)(7) were not met by appellants. Because the County did not take a cross appeal from the order in question, it cannot raise issues decided adversely to it. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 233 n. 4, 478 A.2d 800, 804 n. 4 (1984); Appeal of Pesante, 82 Pa.Commonw. 242, 476 A.2d 474 (1984). Nor do we find that the County’s issues are intertwined with appellants’ issue.

      . Appellants also argue that the trial court erred in failing to consider dividing the class into sub-classes. We need not consider this argument in light of our disposition of the case.


author: OLSZEWSKI, Judge:

text:
    515 A.2d 52
    Joseph CAP, Appellant, v. K-MART DISCOUNT STORES, INC., K-Mart Store No. 3361, Jeffrey L. Miller, “John Doe” Mechanic, K-Mart Corp., Supervisors and Managers of Jeffrey L. Miller and John Doe, Appellees.
    Superior Court of Pennsylvania.
    Argued April 3, 1986.
    Decided Aug. 8, 1986.
    Reargument Denied Sept. 30, 1986.

      Joseph E. Cap, in propria persona.
    Edward H. McGee, Allentown, for appellees.
    Before McEWEN, OLSZEWSKI, and KELLY, JJ.
   OLSZEWSKI, Judge:

Appellant challenges the lower court determination that his action for malicious prosecution should be dismissed because: (1) the statute of limitations bars the claim, and (2) the complaint does not state a cause of action. Our decision today specifies that the statute of limitations for a malicious prosecution claim begins to run, not on the day of the incident, but at the time a plaintiff is successfully vindicated of the charges against him. Pursuant to this holding, that part of the lower court opinion declaring otherwise is reversed. Our decision also reverses that part of the lower court dismissing the complaint for not stating a cause of action.

The facts, as set out in the complaint, are as follows. On February 11, 1982, appellant took his automobile to K-Mart to have it inspected. When told that it would not pass inspection without certain repairs being done first, appellant disagreed and refused to pay the cost of the inspection, $8.88. Appellant and his vehicle were detained at the K-Mart garage while an employee called the police. Appellant was charged with theft of services for refusing to pay for the inspection. On July 8, 1982, appellant was found guilty by a “justice of the peace.”

Appellant took his case to the Lehigh County Court of Common Pleas. After a de novo hearing, he was found not guilty on March 7, 1983. Appellant filed a pro se complaint on March 6, 1985 raising claims of negligent inspection, false imprisonment, wrongful detention and malicious prosecution. Only the claim of malicious prosecution is presently before us.

We first address the issue concerning the statute of limitations. Specifically, we are called upon to determine when the statute of limitations begins to run in a malicious prosecution case. Appellant argues the run date should be the date the action was terminated in his favor, March 6, 1985, for our purposes. Appellees, however, contend the run date starts the day of the incident resulting in the arrest, which is February 11, 1982 in this case. The lower court agreed; we do not.

The true test in determining when a cause of action arises or accrues is to establish the time when the plaintiff could have first maintained the action to a successful conclusion. 51 Am.Jr.2d, Limitation of Actions Sec. 107 (1970).

See Kapil v. Association of Pennsylvania State Colleges and University Faculties, 504 Pa. 92, 470 A.2d 482 (1983). Since there can be no action until a right of action is complete, Sicola v. First National Bank of Altoona, 404 Pa. 18, 170 A.2d 584 (1961), we must determine when that is for malicious prosecution.

The elements of an action for malicious prosecution are: (1) the proceedings were brought with malice, (2) there was no probable cause, and (3) the proceedings terminated favorably to the accused. Sicola v. First National Bank of Altoona, supra; Lynch v. Johnson, 76 Pa.Commonwealth Ct. 8, 463 A.2d 87 (1983). Until the proceedings are terminated, an accused does not have the right to start a malicious prosecution action. In addition, if convicted, he certainly cannot prove a lack of probable cause. It follows, then, that the right of action is not complete until there is a successful vindication in favor of the accused. It is our holding, therefore, that the statute of limitations for malicious prosecution begins to run on the date the proceedings terminated favorably to the accused. See, Wilkenson v. Ellis, 484 F.Supp. 1072 (E.D.Pa.1980); Kedra v. City of Philadelphia, 454 F.Supp. 652 (E.D.Pa.1978); Sachs v. Levy, 216 F.Supp. 44 (E.D.Pa.1963); Sicola v. First National Bank of Altoona, 404 Pa. 18, 170 A.2d 584 (1961). Appellant’s claim should not have been dismissed on those grounds.

Our next point of inquiry concerns whether the complaint stated a cause of action for malicious prosecution. In reviewing a demurrer, it will be sustained only if it is certain that no recovery can be permitted. Any doubt must be resolved against sustaining the demurrer. Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970). We must accept as true all well-pleaded material facts in the complaint as well as all inferences reasonably deducible therefrom. Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983). But, conclusions of law or unjustified inferences are not to be drawn from the face of the complaint. Buchanan v. Brentwood Federal Savings and Loan Association, 457 Pa. 135, 320 A.2d 117 (1974). Further, in ruling on a demurrer, the court may consider only such matters as arise out of the complaint; it cannot supply a fact missing in the document under scrutiny. Linda Coal and Supply Co. v. Tasa Coal Co., 416 Pa. 97, 204 A.2d 451 (1964).

As set out previously, there are three elements of an action for malicious prosecution: (1) malice, (2) lack of probable cause, and (3) favorable termination. Although ultimately found not guilty, appellant was initially found guilty of the summary offense before a “justice of the peace." The lower court relied upon Lynn v. Smith, 193 F.Supp. 887 (W.D.Pa.1961), which held that a conviction by the justice of the peace in a summary proceeding, even though reversed on appeal, is sufficient proof of cause to defeat an action for malicious prosecution. We do not agree. Appellant’s complaint, therefore, was improperly dismissed.

Order vacated. Remanded. Jurisdiction is relinquished.

KELLY, J., concurred in the result.

      . There is no dispute that the statute of limitations is two years. 42 Pa.C.S.A. Sec. 5524(1) provides:
      The following actions and proceedings must be commenced within two years:
      (1) An action for assault, battery, false arrest, malicious prosecution or malicious abuse of process.


author: CAVANAUGH, Judge:

text:
    515 A.2d 54
    COMMONWEALTH of Pennsylvania v. Sanford BERNSTEIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 21, 1985.
    Filed Sept. 12, 1986.

      John J. O’Brien, West Chester, for appellant.
    James B. Martin, Assistant District Attorney, Allentown, for Commonwealth, appellee.
    Before CAVANAUGH, CERCONE and HOFFMAN, JJ.

      This case was originally submitted to a panel consisting of Judges Cavanaugh, Cercone and Lipez. A final determination was not reached before Judge Lipez retired on June 30, iy86. Thereafter, Judge Hoffman was appointed by President Judge Cirillo to replace Judge Lipez.

   CAVANAUGH, Judge:

Following a jury trial, appellant was convicted of solicitation to murder his wife. Part of the Commonwealth’s case was the testimony of James Coleman. James Coleman testified at trial that Sanford Bernstein made him an offer to kill Bernstein’s wife. After Bernstein’s conviction, Coleman proferred a recantation of his trial testimony asserting that appellant, Bernstein, was only kidding when he made him the offer to kill his wife. This recantation statement was obtained in the offices of appellant’s Philadelphia attorney. Appellant included this in his post-trial motions. Post-trial motions were denied and appellant was sentenced to five to ten years incarceration along with a $25,000.00 fine. Bernstein appealed the denial of his post-trial motions and judgment of sentence. This court vacated the judgment of sentence and remanded the matter for an evidentiary hearing to determine whether the recantation evidence warranted the grant of a new trial. Commonwealth v. Bernstein, 309 Pa.Super. 573, 455 A.2d 1232 (1983). After four evidentiary hearings, the lower court concluded that a new trial was not warranted as “ ... Coleman testified that he did not wish to recant and that his testimony at trial was truthful.” Accordingly, the lower court denied appellant’s request for a new trial and reinstated his judgment of sentence. It is from the denial of appellant’s request for a new trial and reinstatement of his sentence that appellant brings this appeal. Appellant’s brief raises numerous issues on appeal. Appellant argues that his conviction should be reversed and dismissed, or in the alternative, that he be granted a new trial. He also argues that in the event that his convictions are not dismissed by this court, that we remand the matter for a sentencing hearing. We affirm the lower court’s order and reinstatement of his judgment of sentence.

We first note our standard of review. Recantation testimony is considered extremely unreliable. The trial court should deny a new trial unless satisfied that the testimony is true. As an appellate court, we may not disturb the trial court’s decision unless there has been a clear abuse of discretion as it is the trial court’s responsibility to determine the credibility of the recantation. Commonwealth v. Gaddy, 492 Pa. 434, 424 A.2d 1268 (1981); Commonwealth v. Nelson, 484 Pa. 11, 398 A.2d 636 (1979).

Appellant’s first argument alleges that his conviction is unconstitutional as it was procured in violation of the due process clause, the equal protection clause and the Bill of Rights. More specifically, he argues that the lower court failed to resolve the issue of the credibility of Coleman’s recantation and whether it warranted a new trial. We are unpersuaded by this assertion.

A review of the record reveals that the lower court conducted four evidentiary hearings in resolving the issue of Coleman’s credibility. The first evidentiary hearing was adjourned by the court, on its own motion, as the court realized it was without jurisdiction at that time to hold the hearing. Appellant had a petition for allowance of appeal before the Supreme Court of Pennsylvania pending at the time of the first hearing. Therefore, the court adjourned the hearing pending the Supreme Court’s disposition of the petition. However, we note that prior to adjourning the hearing, Coleman was called to the stand where he stated, “on the advice of my attorney, I plead the Fifth.” The court allowed him to plead the Fifth Amendment except with respect to whether the district attorney’s office had threatened him with prosecution for perjury if he testified at the hearing. Coleman replied, “it depends what you constitute [sic] as a threat.” However, he also stated that the warning not to testify, in light of a potential perjury prosecution, may have come from his own attorney. Thus, the hearing ended prematurely with Coleman indicating that he was not willing to testify and would not affirm the truth of his recant.

The second hearing was held a few months later. It was learned at the beginning of the second hearing that, between the first and second hearing, Coleman had contacted the district attorney’s office to “clear this whole mess up.” There, after receiving a promise from the prosecutor that he would not be subject to prosecution if he testified truthfully, he swore to the truthfulness of his original trial testimony. He also revealed at great length the reason for his recant in Philadelphia. In a ninety-five page statement, Coleman detailed how he met with Bernstein on several occasions following his- conviction and was eventually persuaded, with a bribe, to recant his trial testimony. This statement was offered into evidence and became part of the record. While the issue of the credibility of Coleman’s recant appeared to have been resolved—Coleman himself denying its truthfulness—the court ordered another hearing to give appellant’s counsel an opportunity to rebut Coleman’s assertions in the ninety-five page statement. Appellant was absent at the third evidentiary hearing, as he had been absent at the first two, because of health problems. Appellant’s counsel called three witnesses attempting to challenge Coleman’s assertions. In the fourth hearing, appellant also being absent, appellant’s counsel called two witnesses to rebut Coleman’s denial of his recant and affirmation of his trial testimony. Following the testimony of appellant’s witnesses, and arguments from both parties, the court concluded:

We have a case that has been remanded to us by the Superior Court not for the purpose of retrying a jury trial, but to the narrow purpose of hearing the testimony of a witness and determining the credibility of that witness’ testimony for the purpose of deciding whether or not a new trial should be granted to the defendant’s petition. That is the extent of our authority to act as described by the Superior Court.
It is now at least clear to the Court that as the Court indicated in its remarks on the record at a prior time, that the witness taking the Fifth Amendment made the issues very clear because there was no recantation for the Court to consider and, therefore, there is no reason to proceed beyond that. The Court is now convinced that in spite of the fact that immunity has been granted to Mr. Coleman, the issue is equally as clear because once immunity was granted the witness testified in substance that he is not recanting, that he is affirming his testimony and again, there is no issue then of credibility with respect to any recantation. The issue before the Court revolves around the petitioner’s obligation to present to the Court testimony to show that there is a credible recantation in order for the Court to consider whether or not a new trial can be granted.
We are satisfied that in the context of these proceedings where the witness has testified that he is not recanting and that he is affirming his testimony, that the petitioner has not sustained his burden with respect to his motion for new trial and that motion must be dismissed. The Superior Court also said that after the evidentiary hearing if the Court is satisfied that the motion for new trial is not granted, then the bail should be forfeited immediately or terminated immediately is the word of the Superior Court and, of course, that would result in the defendant being remanded to complete the remainder of his term.
This Court being satisfied that there has not been a showing that a new trial should be granted, and having denied the motion of the petitioner/defendant, reinstates the sentence of the Court.

We believe that the record speaks very clearly as to whether the lower court complied with the Superior Court’s mandate. In its attempt to provide a full opportunity to be heard the lower court held four hearings. As has been stated often, “Recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true.” Commonwealth v. Mosteller, 446 Pa. 83, 284 A.2d 786 (1971), quoting Commonwealth v. Scull, 200 Pa.Super. 122, 186 A.2d 854 (1962). Accordingly, after Coleman pled the fifth amendment at the first hearing, and certainly after he denied his recant and reaffirmed his trial testimony at the second hearing, the issue as to the credibility of the recant was resolved. There was no issue as to its credibility as Coleman was either unwilling to affirm it, or had expressly denied it. Accordingly, we believe the trial court adequately complied with the court’s mandate to resolve the issue of the credibility of the recanting witness. Appellant also strenuously argues that the prosecutor acted improperly by taking a statement from Coleman between the first and second hearing. He argues that the prosecutor “ ... intentionally and deliberately misused the witness immunity power ... to influence and manipulate the testimony of the recanting witness, Jimmy H. Coleman.” We are unpersuaded by appellant’s argument.

First of all, we see no impropriety with the prosecutor taking a statement from a witness who has approached him. It was Coleman who contacted the prosecutor to “clear this whole mess up.” Furthermore, Coleman had been a witness for the Commonwealth throughout these proceedings as he was under a Commonwealth subpoena to appear at the remand hearing. There is nothing to suggest that access to the witness by the defendant’s attorney or other representative was improperly impeded by the Commonwealth.

Nor do we find any impropriety with the prosecutor’s promise not to prosecute made in the District Attorney’s office when Coleman gave his statement. We believe the prosecutor’s commitment to Coleman was a legitimate act within his discretion as a prosecutor.

A prosecutor’s decision not to prosecute an individual, and his ability to make such a promise to an individual, is an essential and vital part of our criminal justice system. We recently stated that:

... whether to charge a person with criminal offense depends upon the exercise of prosecutorial discretion. This discretionary power of the district attorney in determining whether prosecution shall be commenced or maintained may well depend on matters of policy wholly separate and apart from the existence of probable cause. For this reason, the courts have been wary of interfering with or attempting to supervise the district attorney in the exercise of his discretion in controlling criminal prosecutions.

In Re: Wood, 333 Pa.Super. 597 at 602, 482 A.2d 1033 at 1036 (1984), quoting U.S. v. Cox, 342 F.2d 167 at 171 (5th Cir.1965), cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965).

We have further held that a court should not interfere with the exercise of prosecutorial discretion unless there has been a gross abuse of discretion. Commonwealth v. Eisemann, 276 Pa.Super. 543, 419 A.2d 591 (1980). We have already clarified what constitutes a gross abuse of discretion. For example, in Commonwealth v. Morris, 267 Pa.Super. 379, 406 A.2d 1091 (1979), we quoted from Shade v. Commonwealth of Pennsylvania, Department of Transportation, 394 F.Supp. 1237 (1975) and stated:

The criminal law is not a computerized system and discretion ... is a necessary and inherent part of the criminal justice system. Prosecutorial discretion in law enforcement ‘is by its very nature exceedingly broad,’ and such discretion is an essential part of the criminal justice system.

Id., 267 Pa.Superior Ct. at 381-382, 406 A.2d at 1092.

In our view, the facts of this ease clearly support judicial deference to the prosecutorial discretion recognized in Shade, supra, and Eisemann, supra. The prosecutor’s decision (and corresponding commitment) not to prosecute was motivated by his desire to obtain truthful testimony from Coleman. The prosecutor’s promise enabled Coleman to testify without fear of otherwise likely prosecution. Furthermore, there is no evidence whatsoever that the prosecutor deliberately used a “suspect class” in his decision not to prosecute. We see no abuse of discretion and no basis to appellant’s characterization of the prosecutor’s actions as prosecutorial misconduct. Nor do we see any basis to his assertion that the prosecutor abused the immunity process. It is clear that a grant of immunity is a judicial function under 42 Pa.C.S.A. § 5947. Under the statute, the prosecuting attorney requests the grant of immunity from the court, and the court issues the order, provided the prosecuting attorney determines that the testimony is necessary for the public interest or the witness refuses to testify for fear of self-incrimination. See 42 Pa.C.S.A. § 5947(a) and (b). Thus, while the prosecutor makes the judgment that a conferral of immunity is necessary, and petitions the court for the grant of immunity, only the court can issue the order. This is exactly what occurred at the second evidentiary hearing: the district attorney determined that Coleman would not testify for fear of self-incrimination; the district attorney then prepared a petition for the grant of immunity, and the court issued the order. Thus, while it is understandable that the appellant objected to the grant of immunity, especially in light of Coleman’s reaffirmation of his trial testimony and denial of his recant, it was in no way improper under the statute. The prosecutor acted within his discretion and under his statutory authority when he made a promise to Coleman and petitioned the court for a grant of immunity. Therefore, we see no merit to appellant’s argument.

Appellant also argues that Coleman’s statement to the prosecutor was unduly influenced by the presence of two “intimidators” which further demonstrates the prosecutor’s bad faith. These two intimidators were allegedly Mr. Heusinger and Mr. Padrone. Both individuals had been employed by Mrs. Bernstein as private security guards. Mr. Padrone was also a police officer in the Allentown area. Michael Holubowsky, a county detective, was also present during the statement. We believe this, like many other issues appellant raises, was a matter of credibility to be determined by the trial judge. It is well established that it is not our function to substitute our judgment for that of the factfinder on factual matters, especially credibility, and accordingly, we will not do so except under the most egregious circumstances. Commonwealth v. Willis, 276 Pa.Super. 13, 419 A.2d 70 (1980). The trial judge is to judge credibility in hearings following recants. See Commonwealth v. Gaddy, supra. The trial judge was able to determine this issue. Furthermore, Coleman had an opportunity to testify outside the presence of the “intimidators” at the evidentiary hearing. Therefore, the “coercion” that allegedly took place in the prosecutor’s office with the presence of the intimidators was not present in the courtroom. As we have already pointed out, Coleman affirmed the truth of the statement given in the prosecution’s office in the evidentiary hearing. We find no abuse of discretion and, therefore, will not reverse the lower court on this issue. Commonwealth v. Hubble, 314 Pa.Super. 99, 460 A.2d 784 (1983).

Appellant’s final argument challenges his sentence as illegal “ ... in violation of almost every principle applicable to the concept of sentencing and sentencing procedures in the Commonwealth of Pennsylvania.” After a thorough study of appellant’s argument and the record, we are convinced that his claims are without merit. Also, we believe that the lower court properly reinstated appellant’s judgment of sentence following its determination that a new trial was not warranted.

Accordingly, we affirm the trial court’s order.

Order affirmed.

      . 42 Pa.C.S.A. § 5947 states in pertinent part:
      § 5947. Immunity of witnesses
      (b) Request and issuance.—The Attorney General or a district attorney may request an immunity order from any judge of a designated court, and that judge shall issue such an order, when in the judgment of the Attorney General or district attorney:
      (1) the testimony or other information from a witness may be necessary to the public interest; and
      (2) a witness has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination.
      42 Pa.C.S.A. § 5947(b).