author: CIRILLO, President Judge:

text:
    544 A.2d 54
    COMMONWEALTH of Pennsylvania v. James JONES, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 3, 1988.
    Filed June 8, 1988.

      David S. Shrager, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.
    Before CIRILLO, President Judge, and BECK and POPOVICH, JJ.
   CIRILLO, President Judge:

This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Allegheny County on May 29, 1987.

We note initially that the appellant, James Jones, has challenged the excessiveness of his sentence. He has failed, however, to include in his brief a statement of reasons relied on for appeal as required by Pennsylvania Rule of Appellate Procedure 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Because an appellant who challenges the discretionary aspects of sentence is not entitled to an appeal of right, but is only entitled to a review of his sentence if he has presented a substantial question to this court that his sentence compromises the Sentencing Code as a whole, Tuladziecki, 513 Pa. at 515, 522 A.2d at 20, we are precluded from considering Jones’ appeal. We therefore quash the portion of this appeal dealing with sentencing.

We have disposed of the sentencing question first because we believe Tuladziecki prevents us from examining the merits of the case in attempting to determine whether a substantial question exists. Id., 513 Pa. at 513, 522 A.2d at 19. Having quashed that part of the appeal, we will now examine the merits of this case. James Jones, was married to Carol Yobst for a period of eight years. The couple had problems with their relationship, and Jones moved out of their home and into the home of Linda Beatty. On June 18, 1985, Yobst was in the area of the Beatty house with a friend. Jones, who was driving his truck at the time, saw Ms. Yobst, and stopped to speak with her. They began to argue. Yobst testified that she refused to go with Jones, and that he, at that point, jumped back in the truck and bumped her with it. He then “gunned” the truck, according to Yobst, ran her over with it, and backed up, running her over again. She suffered severe injuries which paralyzed her from the waist down, and confined her to a wheelchair for life.

Jones argues that the trial court improperly allowed the prosecution to examine him on what it claimed was a prior inconsistent statement made during his plea colloquy.

At the time of the plea colloquy, Jones had told the court that he had moved the truck down the alley toward Yobst and bumped her twice before running her down and then backing over her. At trial, Jones testified that his truck had been stopped when Yobst climbed up onto it with a full beer can, and that she then fell and injured herself when he put it in reverse attempting to escape her attack. He testified at trial that he never ran her over.

Jones was charged with criminal attempt to commit homicide, aggravated assault, recklessly endangering another person, and leaving the scene of an accident involving death or personal injury. He was convicted on three of those counts, and acquitted on the count of criminal attempt to commit homicide. His post-trial motions were denied, and he was sentenced to a period of not less than five nor more than ten years incarceration on the aggravated assault count. The court merged the count of recklessly endangering another person into the count of aggravated assault for purposes of sentencing, and did not sentence Jones on the count of leaving the scene of an accident. Jones moved that the court reconsider his sentence. That motion was denied, and Jones then appealed to this court.

Jones argues on appeal that the trial court erred in allowing the assistant district attorney to cross-examine him using his prior plea of nolo contendere, a plea which Jones had been permitted to withdraw. Jones also argues that the trial court erred in not granting a mistrial, or in the alternative, in failing to issue cautionary instructions to the jury after the assistant district attorney questioned a witness on cross-examination about Jones’ silence. Because we agree that the trial court abused its discretion in allowing the prosecution to cross-examine the appellant on the basis of a withdrawn plea of nolo contendere, we reverse the order of the trial court.

It is well-settled in this Commonwealth that rulings on the scope and manner of cross-examination are within the discretion of the trial court whose decisions will be reversed only upon a showing of abuse of discretion. Commonwealth v. Stinnett, 356 Pa.Super. 83, 98, 514 A.2d 154, 162 (1986). Jones argues that using a statement from a plea colloquy where the plea was granted and then later withdrawn is a violation of his fifth amendment right against self-incrimination, made applicable to the states by the fourteenth amendment. He claims that he was compelled to answer the questions put to him by the colloquy judge, who elicited the information concerning the accident from him, in order for his plea to be entered. For this reason, the trial court’s permission to cross-examine him on the prior inconsistent statement made during the colloquy was an abuse of discretion.

After reviewing the case law as it exists in this state, as well as examining applicable federal rules and case law, we are convinced that using statements elicited during a guilty plea colloquy or plea of nolo contendere flies in the face of the fifth amendment. Courts in this Commonwealth have long adhered to the rule that evidence of a guilty plea or a plea of nolo contendere after it has been withdrawn is inadmissible for impeachment purposes or as substantive evidence. In Commonwealth v. Henderson, 217 Pa.Super. 329, 272 A.2d 267 (1970), this court cited with approval the district court case of United States ex rel. Spears v. Rundle, 268 F.Supp. 691 (E.D.Pa.1967). In that case, a clerk of the court had testified that the defendant had previously pled guilty to the charges for which he now stood trial. The trial court had permitted the guilty pleas to be withdrawn. The district court stated, “When the court later permitted the withdrawal of the pleas, it recognized some inadequacies [in the pleas]. To later use this plea against him after a recognition of the inherent weaknesses it contained negates the permission to withdraw which was given in an exercise of the court’s discretion. This lays a trap for the defendant.” Spears, 268 F.Supp. at 698. The court went on to reason that the withdrawal of the plea vitiated the defendant’s waiver of the privilege against self-incrimination. Id. at 699. “The privilege could not be voluntarily or ignorantly waived, and in view of the permission given to withdraw the plea, we find that the plea of guilty did not operate as a waiver. Therefore, it could not be offered into evidence against the [defendant] without infringing his privilege not to incriminate himself ... The use in evidence, therefore, of a prior withdrawn guilty plea violated [defendant’s] constitutional rights guaranteed by the Fifth and Fourteenth Amendments....” Id. at 699.

In Henderson, this court applied the Spears reasoning in an attempt to use a prior guilty plea as impeachment material, rather than as part of the prosecution’s case in chief. We found this to be forbidden by the reasoning in Spears, as well as by the Supreme Court of the United States in Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). We quoted extensively from the Supreme Court's explanation of what a guilty plea is:

A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is in itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences. When one so pleads, he may be held bound. But, on timely application, the court will vacate a plea of guilty shown to have been unfairly obtained or given through ignorance, fear, or inadvertence. Such an application does not involve any question of guilt or innocence. The court, in exercise of its discretion will permit one accused to substitute a plea of not guilty and have a trial if for any reason the granting of the priviledge seems fair and just.

Henderson, 217 Pa.Super. at 331-2, 272 A.2d at 268-269 (quoting Kercheval, 274 U.S. at 223-224, 47 S.Ct. at 583). From that definition, we reasoned that a withdrawn guilty plea was inadmissible in this Commonwealth for impeachment purposes as well as for substantive evidence. Id. 217 Pa.Super. at 332, 272 A.2d at 269.

In this case, we are not faced with the admission of the existence of the plea itself into evidence after it had been withdrawn. We must instead determine whether statements made by defendant during a plea colloquy are admissible against the defendant as impeachment evidence after the plea has been withdrawn. We have been presented with no case directly on point by Jones. We agree, however, with his argument that where a defendant is compelled by a court to answer factual questions in relation to his plea in order for that plea to be accepted by the court, and those statements are later entered into evidence against him once the plea is withdrawn, he has been compelled to incriminate himself. That was the case here.

There is a line of cases closely analogous to this situation. We have held that statements made in connection with offers to plead guilty or nolo contendere are not admissible into evidence if certain criteria are met. In Commonwealth v. Calloway, 313 Pa.Super. 173, 459 A.2d 795 (1983), this court discussed the admissibility of statements made to initiate plea negotiations. After examining Federal Rule of Evidence 410, and Federal Rule of Criminal Procedure 11(e), as well as several federal cases dealing with these issues, we held that statements made in the context of plea negotiations were inadmissible in certain circumstances. Id., 313 Pa.Superior Ct. at 183-5, 459 A.2d at 800-801. According to that court, the logic behind encouraging plea bargaining required that result:

The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called “plea bargaining,” is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.
Disposition of charges after plea discussion is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned.

Id., 313 Pa.Superior Ct. at 184, 459 A.2d at 800. (quoting Santobello v. New York, 404 U.S. 257, 260-61, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971)) (citations omitted).

This Commonwealth has paid deference to any attempt on the part of the accused to truly initiate plea bargaining. If this is so with regard to statements made in an attempt to begin bargaining, the same holds true for those statements made in the course of the plea. In fact, the federal rules which deal with these issues are written in that manner. Federal Rule of Evidence 410 states that:

Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements
Except as otherwise provided in this rule evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
(1) a plea of guilty which was later withdrawn;
(2) a plea of nolo contendere;
(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas;
(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

Fed.R.Evid. 410. We see no reason not to adopt a similar rule here.

We are persuaded by the reasoning of the United States District Court for the Eastern District of New York in United States v. Udeagu, 110 F.R.D. 172 (E.D.N.Y.1986) As that court pointed out, “Evidence of incriminating statements made in connection with a plea of guilty which is later withdrawn may not be used against the defendant as part of the government’s case-in-chief as evidence of his guilt. The reason is clear: the incriminatory admissions make the plea nugatory since conviction would almost surely result from a trial.” Id. at 174. Further, the statements made are not properly used for impeachment purposes either: Rules 410 and 11 introduce another factor into the equation. These rules are designed to encourage unrestrained candor necessary to produce effective plea discussions and pleas. See H.Conf.R.Rep. No. 94-414, 94th Cong., 1st Sess. 10 (1975), U.S.Code Cong. & Admin.News 1975, pp. 674, 714. Id. at 174. The legislative history of Rule 410 indicates that Congress explicitly intended to preclude use of statements made in connection with pleas for impeachment purposes. Here, the plea in our system of jurisprudence, carries over to our state courts as well. We, too, in this Commonwealth seek to encourage plea bargaining for all the benefits outlined by the Supreme Court above. We, too, should be concerned with the effect upon the “unrestrained candor” in the context of pleas which Congress declined to abrogate, and which would be vitiated by our decision that statements, even though they are factual only, and not obviously taken from a plea colloquy, are admissible to impeach the defendant in this Commonwealth. We decline to take such a step.

Because we find that the trial court erred by allowing cross-examination of Jones with factual statements taken from his withdrawn plea colloquy, we will not consider his final contention that either a mistrial should have been granted because the prosecutor questioned a witness about his silence before arrest, or a cautionary instruction should have been immediately given. For these reasons, we reverse the decision of the trial court.

The judgment of sentence is vacated, and a new trial is granted. Jurisdiction is relinquished.

      . In this Commonwealth, a plea of nolo contendere may be utilized to impeach a defendant’s credibility to the same extent as a plea of guilty. See Commonwealth v. Snyder, 408 Pa. 253, 255, 182 A.2d 495, 496 (1962). Further, when a plea of nolo contendere is accepted by the court, it is equivalent in its effect on the case to a plea of guilty. See Eisenberg v. Commonwealth, Department of Public Welfare, 512 Pa. 181, 185, 516 A.2d 333, 335 (1986) (quoting Commonwealth v. Ferguson, 44 Pa.Super. 626, 628 (1910)); (Commonwealth ex rel. Warner v. Warner, 156 Pa.Super. 465, 466-467, 40 A.2d 886, 887 (1945)).

      . The court set out guidelines to determine whether the statements made by an accused were within the context of plea negotiations. Relying on a Fifth Circuit Court of Appeals decision, U.S. v. Robertson, 582 F.2d 1356 (5th Cir.1978), the court held that a statement would only be held to fall within the contours of plea bargaining: (1) if the accused exhibited an actual subjective expectation to negotiate a plea at the time of discussion, and (2) if the accused's expectation was reasonable given the totality of the circumstances. The court further stated that the Commonwealth’s show of interest in participating in such discussions was of primary importance in assessing the defendant’s expectations. Calloway, 313 Pa.Super. at 184-185, 459 A.2d at 800-801. See also Commonwealth v. Wolf, 353 Pa.Super. 483, 510 A.2d 764 (1986) (appellant’s statements properly admissible because Commonwealth had not shown any interest in settling case short of trial).

      . The wording of Fed.R.Crim.P. 11(e) is the same.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    544 A.2d 59
    Stuart Menachem JOSELIT, Appellant, v. Susan Pearl JOSELIT, Appellee.
    Superior Court of Pennsylvania.
    Argued March 9, 1988.
    Filed June 21, 1988.

      Mark A. Momjian, Philadelphia, for appellant.
    Michael J. Barrett, Scranton, for appellee.
    Before ROWLEY, WIEAND and MONTEMURO, JJ.
   WIEAND, Judge:

The issue in this appeal is whether the trial court abused its discretion by refusing to exercise its jurisdiction to hear a custody dispute, notwithstanding the presence of the child in Pennsylvania, which is also the home state of the child, in deference to the courts of New York, where the child’s mother now resides and where the child was temporarily hospitalized for sophisticated treatment.

Stuart Menachem Joselit and Susan Pearl Joselit were married on March 25, 1985 in Bronx County, New York. After their wedding, they moved to Scranton, Pennsylvania, where Stuart had made his home several years before his marriage. On May 21, 1986, Susan gave birth to a son, Ephraim, in Pennsylvania. The infant child developed various medical problems and received treatment at a Pennsylvania hospital. When the infant’s condition worsened, the treating physician in Pennsylvania advised the parents to seek more sophisticated treatment in New'York City. On January 29, 1987, Ephraim, then eight months old, was admitted to Babies Hospital (Columbia Presbyterian Hospital) in Manhattan, New York, for evaluation and treatment. There, the child’s treatment appeared to be impeded by interference not immediately identifiable. Complications developed. As a result of careful investigation by the hospital staff, it was ascertained that the incidents of interference occurred only when the mother was alone with the child. On March 16, 1987, the mother voluntarily committed herself to a New York hospital for psychiatric treatment. Thereafter, Ephraim’s condition improved, and, on March 27, 1987, he was discharged from the hospital. He remained temporarily in New York, however, staying at the home of his paternal grandparents so that he could be near the hospital in the event of additional complications. When his condition had improved sufficiently, he returned with his father to Scranton, Pennsylvania, on July 15, 1987.

Meanwhile, Stuart and Susan Joselit had separated. On May 21, 1987, Stuart commenced the instant action in divorce in Lackawanna County. In the same action, he sought a decree confirming custody of his son. On June 17, 1987, Susan Joselit also commenced an action for divorce, but her action was brought in the Supreme Court of Kings County, New York. She, too, requested custody of the parties’ child.

On July 21, 1987, Susan filed a motion in the Court of Common Pleas of Lackawanna County requesting dismissal of Stuart’s custody action on grounds that the New York Supreme Court was a more appropriate forum. On August 25, 1987, the trial court granted this motion. The court “determined that Pennsylvania [was] the home state for deciding the issue of custody,” but concluded nonetheless that “Kings County, New York [was] the more convenient forum for adjudicating the issue.” Stuart Joselit appealed.

Because Pennsylvania is the child’s home state, it is clear that the courts of this Commonwealth have jurisdiction to hear and decide a dispute regarding his custody. The Uniform Child Custody Jurisdiction Act (U.C.C.J.A.), at 42 Pa.C.S. § 5343, defines the “home state” of the child as

[t]he state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, or in an institution, for at least six consecutive months, and in the case of a child less than six months old the state in which the child lived from birth with any of the persons mentioned.

The U.C.C.J.A., at 42 Pa.C.S. § 5344(a), provides:

(a) General rule. — A court of this Commonwealth which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) this Commonwealth:
(i) is the home state of the child at the time of commencement of the proceeding; or
(ii) had been the home state of the child within six months before commencement of the proceeding and the child is absent from this Commonwealth because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this Commonwealth;

From his birth on May 21, 1986 until January 29, 1987, Ephraim lived with his parents in Scranton. Thereafter, he was admitted to Babies Hospital in New York City, where he remained for approximately two months. Upon discharge from the hospital, Ephraim remained in the New York home of his paternal grandparents until he had recuperated sufficiently to return to Scranton. On July 15, 1987, the child returned to his father’s home in Scranton, Pennsylvania, where he continues to reside. It is clear, therefore, that Pennsylvania is the child’s home state and that the court in Lackawanna County has jurisdiction to hear the dispute regarding the child’s custody.

The Uniform Act, at 42 Pa.C.S. § 5348(a), however, contains the following pertinent provision:

(a) General rule. — A court which has jurisdiction under this subchapter to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum. (Emphasis added.)

In determining whether it is an “inconvenient” forum, a court is directed to “consider if it is in the interest of the child that another state assume jurisdiction.” 42 Pa.C.S. § 5348(c). See also: Commonwealth ex rel. Octaviano v. Dombrowski, 290 Pa.Super. 322, 326, 434 A.2d 774, 776 (1981). In making such a determination, the court should consider the following factors:

(1) If another state is or recently was the home state of the child.
(2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants.
(3) If substantial evidence concerning the present or future care, protection, training, and personal relationships of the child is more readily available in another state.
(4) If the parties have agreed on another forum which is no less appropriate.
(5) If the exercise of jurisdiction by a court of this Commonwealth would contravene any of the purposes stated in section 5342 (relating to purposes and construction of subchapter).

42 Pa.C.S. § 5348(c).

It was in reliance upon these provisions that the trial court declined to exercise its jurisdiction, even though Pennsylvania was the home state of the child. In reviewing the decision of a trial court declining to exercise its jurisdiction under the U.C.C.J.A., we must apply an abuse of discretion standard. The decision of the trial court will not be reversed absent an abuse of discretion. See: Brown v. Brown, 195 Conn. 98, 486 A.2d 1116 (1985); Lustig v. Lustig, 99 Mich.App. 716, 299 N.W.2d 375 (1980); Dennis v. Dennis, 387 N.W.2d 234 (N.D.1980). In defining this standard, the Pennsylvania Supreme Court has said:

When the court has come to a conclusion by the exercise of its discretion, the party complaining of it on appeal has a heavy burden; it is not sufficient to persuade the appellate court that it might have reached a different conclusion if, in the first place, charged with the duty imposed on the court below; it is necessary to go further and show an abuse of the discretionary power. “An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.” Mielcuszny et ux. v. Rosol, 317 Pa. 91, 93, 94, 176 A. 236.

Garrett’s Estate, 335 Pa. 287, 292-293, 6 A.2d 858, 860 (1939). See also: Commonwealth v. Wade, 485 Pa. 453, 467, 402 A.2d 1360, 1367 (1979).

As a general rule, the home state of the child is the preferred forum. This is particularly so where the child has only known one home state. Cf. Warman v. Warman, 294 Pa.Super. 285, 439 A.2d 1203 (1987). The burden, therefore, is on a petitioner who would have a court in the home state decline to exercise its jurisdiction to show that the home state is an inconvenient forum and that another state would be a more appropriate forum. Id., 294 Pa.Superior Ct. at 302, 439 A.2d at 1211. Here, the only connection which the child had with New York was his temporary hospitalization and recuperation in that state. All other contact has been with Pennsylvania. The temporary hospitalization of the child in New York would appear to be an inadequate basis on which a Pennsylvania court should decline to exercise jurisdiction. Therefore, we will examine carefully the reasons given by the trial court for its order.

Initially, the trial court concluded that the child resided in New York during hospitalization and recuperation and that New York, therefore, had become the home state of the child during that period. We are constrained to disagree. The hospitalization in New York was temporary and did not effect a change in the child’s domicile or home state. During this entire period, the child was subject to the control of one or both parents who resided in Scranton, Pennsylvania. The child’s home state did not change merely because of temporary hospitalization in another state.

The trial court also considered it significant that the New York Department of Social Services had ostensibly awarded custody of the child to the father. If this is so, it is a fact which does not appear of record. Appellant’s custody of his son, insofar as can be determined from the record, is because he is the father of the boy and not because custody was awarded by a social agency located in New York.

Moreover, contrary to the trial court’s apparent belief, this case is not controlled by the provisions of 42 Pa.C.S. § 5344(a)(5). This subsection provides as follows:

(a) General rule. — A court of this Commonwealth which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(5) the child welfare agencies of the counties wherein the contestants for the child live, have made an investigation . of the home of the person to whom custody is awarded and have found it to be satisfactory for the welfare of the child.

This provision pertains to the courts of this Commonwealth. In the instant case, moreover, the agency in New York did not make an investigation of the child’s home. This home has always been in Scranton, Pennsylvania, and it is in Scranton where the child continues to live with his father.

The trial court also observed that a substantial amount of medical evidence was located in New York and that it was in New York that the mother received psychiatric treatment. This is correct. However, standing alone it was an inadequate basis' for the trial court’s determination that New York would be a more appropriate forum. The child was born in Pennsylvania, lived his entire life in Pennsylvania, and was initially hospitalized in Pennsylvania. His parents also lived in Pennsylvania until their separation, and his father, with whom the child resides, continues to be domiciled in Pennsylvania. Under these circumstances, Pennsylvania is not rendered an inconvenient forum by virtue of either the child’s temporary hospitalization in New York or his mother’s receipt of psychiatric treatment in New York.

Finally, the trial court found New York a more appropriate forum because the child’s grandparents resided in New York. However, the grandparents are not parties to this litigation, and it does not appear that they are responsible for the child’s care. This Court has held that, under such circumstances, the out-of-state residence of the grandparents is not alone determinative of whether Pennsylvania is an inconvenient forum. See: Commonwealth ex rel. Octaviano v. Dombrowski, supra 290 Pa.Super. at 327, 434 A.2d at 777. The fact that the grandparents lived in New York was not an adequate reason for the trial court’s declining to exercise its jurisdiction.

Similarly, New York was not rendered a more appropriate forum merely because the child’s mother, after she had separated from the child’s father, elected to return to New York. The child remained in Pennsylvania with his father. Pennsylvania, moreover, was the state of marital domicile; and, therefore, it was the state having the greater interest in the marital action of which the custody dispute was a part.

In short, the record in this case establishes unequivocally that Pennsylvania’s contacts with the child and with the child’s immediate family are more substantial than those of New York. We are constrained to conclude, therefore, that the trial court abused its discretion when it determined that Pennsylvania was an inconvenient forum and that New York was a more appropriate forum to decide the custody of Ephraim. Pennsylvania, not New York, is the home state of the child. The child was born in Pennsylvania, lived his entire life in Pennsylvania, and continues to live in Pennsylvania with his father. New York is not a more appropriate forum. It did not become a more appropriate forum merely because the child was temporarily hospitalized in New York to obtain more sophisticated hospital services than were available in Scranton or because his mother, upon separation from her husband, the child’s father, elected to return to New York where her parents, the child’s maternal grandparents, resided. When the trial court declined to exercise its jurisdiction under these circumstances, it abused its discretion.

Reversed and remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.

      . See: Act of April 2, 1980, P.L. 63, No. 26, §§ 301 and 401, as amended, 23 P.S. §§ 301 and 401.

      . Although interlocutory in nature, the trial court’s order is appealable as of right by virtue of Pa.R.A.P. 311(c).

      . Because it is clear that New York is not a more appropriate forum, we find it unnecessary to decide whether New York has jurisdiction to decide the custody of a child who is domiciled in Pennsylvania.


author: JOHNSON, Judge:

text:
    544 A.2d 63
    Linda H. DeNOMME, Appellant, v. Thomas K. DeNOMME, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 23, 1988.
    Filed June 21, 1988.

      Margaret P. Joy, Pittsburgh, for appellant.
    Rosemary Markham, Pittsburgh, for appellee.

      Before McEWEN, DEL SOLE and JOHNSON, JJ.
   JOHNSON, Judge:

This is an action for child support. Appellant Linda H. DeNomme (Wife) appeals from the denial of her exceptions to the hearing officer’s recommendation that appellee Thomas K. DeNomme (Husband) is not obligated to support his ex-stepson. • We affirm.

The parties were married in 1975, separated for the final time in February of 1983 and divorced in April of 1983. This was the second marriage for both. Husband supports a child from his first marriage.' From his marriage with Wife, Husband also has a natural child, David Matthew DeNomme (Matthew), whom he,also supports. James De-Nomme (James), the child whose support is at issue in the present case, is the child of Wife’s previous marriage to James Q. Arthur of Wood County, West Virginia. Wife and Arthur were divorced in 1975. Although Arthur was granted custody of James, Wife retained physical custody of the child and brought him to Pittsburgh, Pennsylvania. Wife was granted custody of James in 1977. N.T., 6/4/82 at 28.

It is undisputed that, during the eight-year marriage, Husband expressly assumed full parental obligation for James, including financial support. James was two years old when the parties married. James was known as James DeNomme at Husband’s insistence. N.T. of 6/4/82 at 40. Husband and Wife sought legal counsel concerning Husband’s adoption of James, but the plan had not reached fruition by the time of the separation.

After the parties’ initial separation, in 1982, the Honorable Lawrence W. Kaplan, in his July 13, 1982 ruling on exceptions to the Hearing Officer’s recommendations for support and alimony pendente lite, found Husband obligated to pay support because he stood in loco parentis to James. Judge Kaplan subsequently granted the parties’ divorce by decree of April 15, 1983. On May 9, 1983 Hearing Officer Beatrice Longo ordered support for both children but also directed Wife to pursue a support action in West Virginia against the natural father. In response to Husband’s exceptions to the recommendations for support, the Honorable William L. Standish ordered, on June 27, 1983, that Husband pay support for both children. Wife initiated an action under the Uniform Reciprocal Enforcement of Support Act, 23 Pa.C.S. §§ 4501 et seq., against the natural father but did not pursue it. Husband’s appeal to this Court was subsequently dismissed for failure to prosecute.

Subsequently, both parties filed petitions for modification of support and for contempt through 1985 and 1986. The 1986 contempt claims were consolidated with the economic claims in the divorce and equitable distribution proceeding before the Honorable R. Stanton Wettick. On September 25, 1986 Judge Wettick filed his opinion and order disposing of all issues before him. He ruled that no prior disposition in the case resolved the issue of whether Husband was permanently obligated to provide support for James.

Judge Wettick then referred Wife’s request for child support for James to the Hearing Officer. Recommendations were filed following a hearing on February 7, 1987 in which it was determined that Husband was not obligated to support James. Husband was to provide alimony and support of $900.00 for Wife and Matthew only, plus two-thirds of the unreimbursed medical, dental and psychological costs for Matthew, not to exceed $100.00 per month. Wife filed exceptions on February 18, 1987 challenging, among other findings, the Hearing Officer’s finding that Husband was not obligated to support James. She argued that prior rulings in the course of the controversy were to the contrary and thus established a law of the case. She also disputed the findings of the Hearing Officer that she had failed to vigorously pursue James’ natural father for support.

Following the filing of exceptions, the trial court dismissed the exceptions by order of April 27, 1987. This appeal followed.

Wife raises these issues on appeal:

1. Whether a stepfather, who voluntarily and expressly assumed the full obligation to support his wife’s natural child of a previous marriage, on which assumption the wife relied by not seeking child support from the child’s natural father, which has resulted in the natural father being permanently released from his support obligation due to laches, stands in loco parentis with respect to the child after the parties’ divorce.
2. Whether McNutt v. McNutt, 344 Pa.Super. 321, 496 A.2d 816 (1985), should be applied retroactively to the instant case, where it was decided after the parties’ divorce and after a lower court ruling that appellee stands in loco parentis with respect to the child.
3. Whether the two prior determinations of the lower court that the stepfather stands in loco parentis are the law of the case and are therefore binding on the lower court.
4. Whether the lower court abused its discretion in approving the Hearing Officer’s recommendations with respect to appellant’s earning capacity, appellee’s earnings, the deviation below the guideline amount, and the award of medical expenses.

Wife’s primary argument is that husband should be equitably estopped to deny his support obligation. She claims that his actions induced her to rely upon him exclusively as the parent of her child and to abandon her claims against the natural father. No Pennsylvania case applies such a doctrine. The general rule is that a stepparent has no legal obligation to support stepchildren. Klein v. Sarubin, 324 Pa.Super. 363, 471 A.2d 881 (1984). It is the natural parent’s absolute duty to do so. Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974). The courts of this Commonwealth have found an exception where the stepparent voluntarily assumes parental status and assumes parental duties; in this, known as the in loco parentis status, “the rights and liabilities arising out of that relation are, as the words imply, exactly the same as between parent and child.” Spells v. Spells, 250 Pa.Super. 168, 172, 378 A.2d 879, 882 (1977) (en banc) (citations omitted).

Because the policy is to encourage gratuitous assumption of responsibility by stepparents, courts are reluctant to extend the duty of support beyond marriage. The general proposition derived from this public policy is that, after divorce, no legal duty rests upon the stepparent. Commonwealth ex rel. McNutt v. McNutt, 344 Pa.Super. 321, 496 A.2d 816 (1985). Courts in other jurisdictions have found an equitable estoppel exception to this general rule where the stepparent’s actions have caused the spouse to abandon her claims against the natural parent, resulting in these claims being barred by law. The New Jersey Supreme Court adopts this rationale in Miller v. Miller, 97 N.J. 154, 478 A.2d 351 (1984). Wife asks that we apply the reasoning in Miller to this case and to impose a support obligation upon Husband.

In Miller, the husband supported his wife’s two daughters from a previous marriage for the course of their seven-year marriage. The wife alleged that the husband had intentionally fostered the girls to rely on him as their natural father to their emotional and financial detriment. The trial court agreed and required him to pay child support. In reversing and remanding, the supreme court emphasized that the equitable estoppel doctrine should be applied with caution so as not to discourage voluntary support of children by a stepparent. Finding insufficient evidence before it to establish the elements of equitable estoppel, the court remanded for an evidentiary hearing, stating the wife’s burden thus:

To prove equitable estoppel, the custodial parent has the burden to establish not only representation of support and reliance but also detriment, i.e., that the children will suffer future financial detriment as a result of the stepparent’s representation or conduct that caused the children to be cut off from their natural parent’s financial support. Matrimonial cases are extremely fact-sensitive because each case involves a unique set of interpersonal relationships. The burden of establishing economic detriment depends on the facts of the particular case.
For example, at the final hearing if the custodial parent demonstrates that he or she (1) does not know the whereabouts of the natural parent; (2) cannot locate the other natural parent; or (3) cannot secure jurisdiction over the natural parent for valid legal reasons, and that the natural parent’s unavailability is due to the actions of the stepparent, a trial court could hold that the stepparent is equitably estopped from denying his or her duty to support the children.

Miller v. Miller, 97 N.J. at 168-69, 478 A.2d at 358-59. We disagree with Wife that application of this test to the facts of the case before us would require us to impose a support obligation upon Husband.

Our standard of review in considering a trial court’s decision in a child support action is clear:

A child support order will not be disturbed unless the trial court committed an abuse of discretion. An abuse of discretion is more than an error of judgment. It must be a misapplication of the law or an unreasonable exercise of judgment.

Scheidemantle v. Senka, 371 Pa.Super. 500, 505, 538 A.2d 552, 555 (1988) (citations omitted). The equitable estoppel issue was argued in the trial court, and Judge Kaplan addressed its merits in his opinion. He rejected Wife’s contention that it was Husband who caused her to abandon her claim against James’ natural father:

[Wife] was at all times free to pursue the support action in West Virginia, and should have done so, especially in light of the fact that she knew where James’ father was living and would have had no difficulty bringing such an action. Thomas should not be penalized for [Wife’s] lack of diligence.

Opinion filed August 26, 1987. After review of the entire record we find no abuse of discretion in the trial court’s ruling. The record discloses that Wife’s actions were at least as instrumental in foreclosing the natural father’s obligations as were Husband’s. Applying the Miller test to the facts of this case would not, therefore, yield an equitable estoppel situation.

It also bears notice that at the time of the hearing following Judge Wettick’s ruling, Wife’s recourse against the natural father was not precluded. The West Virginia Master had not yet made a determination on Wife’s claim for support against him. The determination was therefore not before the Hearing Officer. Nor did notice of the determination reach Judge Kaplan until April 27, the date of his order denying the exceptions. He considered the determination in his opinion, stating that while the court does not agree with the West Virginia Master’s findings, the “court is not in a position to give to [Wife] what she should properly be pursuing through the West Virginia courts of appeal.” Opinion of August 26, 1987. We agree with the trial court. What was presented to Judge Kaplan was a Master’s determination. Wife had yet to exhaust her remedies in the West Virginia court system. The trial court did not abuse its discretion in rejecting Wife’s equitable estoppel argument.

Next Wife claims that the trial court relied improperly on Commonwealth ex rel. McNutt v. McNutt. She argues that McNutt creates new law in the Commonwealth by formulating an absolute rule that ex-stepparents have no support obligation. As new law, she asserts, the holding should not be applied retroactively to the case at bar. Again we disagree with Wife’s argument. First, McNutt creates no such absolute rule. It states the general rule that a stepparent’s support obligation should terminate upon dissolution of marriage. The McNutt court found no basis to depart from the rule on the facts before it. We do not read McNutt to have created a new rule the retroactive application of which would be inappropriate. The trial court in the case before us followed a similar course. The court considered the equitable estoppel exception and found that it did not apply to the facts in this case and thus did not carve out an exception to the general rule. After discussion of the public policy arguments encouraging voluntary support of stepchildren advanced in McNutt, the trial court concluded:

As there was no previous law, statutory or otherwise, that obligated a divorced spouse to continue supporting a child of his former spouse’s previous marriage, this court will not create such a law, especially in light of the arguments made by the McNutt court.

Opinion, 8/26/87 at 8. The trial court did not abuse its discretion in thus applying the established law of the Commonwealth.

Wife's third argument is that prior determinations in the course of the divorce proceedings finding Husband in loco parentis establish a law of the case that cannot be reversed. In disposing of all the post-divorce decree issues, Judge Wettick ruled that the issue of whether Husband would be permanently obligated to support James after divorce was as yet unresolved. The prior rulings ordering support were interim support orders that did not address the post-divorce situation. Opinion of September 15, 1986 at 4-5. We find no abuse of discretion in the trial court’s acceptance of Judge Wettick’s conclusion and explication of his analysis that the interim orders do not establish a law of the case.

Finally, Wife asserts that the lower court abused its discretion in accepting the Hearing Officer’s recommendations for amount of support and medical expenses. As with the decision of whether or not support is required, the matter of the amount of a support order is within the trial court’s discretion, and a reviewing court will not disturb the lower court’s order absent a clear abuse of discretion. Costello v. LeNoir, 462 Pa. 36, 337 A.2d 866 (1975); Hartley v. Hartley, 364 Pa.Super. 430, 528 A.2d 233 (1987). We find no abuse of discretion in Judge Kaplan’s carefully explained adoption of the Hearing Officer’s recommendations.

Finding that Wife’s challenges to the lower court’s determinations fail, we affirm the denial of Wife’s exceptions.

Order affirmed.


author: BECK, Judge:

text:
    544 A.2d 67
    In re the ESTATE OF George TASHJIAN, Deceased. Appeal of Violet TASHJIAN, Widow of George Tashjian, Deceased. For: Trustee for Estate of George Tashjian.
    Superior Court of Pennsylvania.
    Argued Feb. 3, 1988.
    Filed July 5, 1988.

      Thomas J. Beagan, Jr., Media, for appellant.
    Joseph E. Lastowka, Jr., Media, for appellee.
    Before BECK, KELLY and JOHNSON, JJ.
   BECK, Judge:

The issue is whether a trustee should consider the independent financial resources of a beneficiary when determining whether to invade the corpus of a trust fund established for the support and maintenance of the beneficiary. This is an appeal by Violet Tashjian, the widow of George Tashjian, from an order denying exceptions to the dismissal of a petition to invade the principal of a testamentary trust fund. We affirm the order of the trial court.

On August 2, 1983, George Tashjian executed a will. The relevant provisions read as follows:

III. Residue: I give, devise and bequeath all the residue of my estate, of whatever nature and wherever situate, to my Trustee, hereinafter named, IN TRUST, as follows:
A. If my said wife survives me, my Trustee shall pay the net income to my said wife, quarterly, or more frequently, for life. In addition, my Trustee may expend such amounts of principal as my Trustee, in her sole discretion, determines necessary for the support and maintenance of said wife.
B. Upon the death of my said wife, my Trustee shall pay the then remaining balance of the principal of this Trust and any accumulated income to ALICE ZARZA-TIAN and DORIS VAN METER their heirs forever, equally share and share alike.
VII. Executor and Trustee: I appoint ALICE ZARZATIAN of 115 Green Valley Road, Upper Darby, Pennsylvania, Executrix of and Trustee under this Will. I further direct that my said Executrix and Trustee shall not be required to enter bond or furnish securities in any jurisdiction.
X. Disinheritance of Son: I recognize that by this Will I have disinherited my son HAGOP TASHJIAN, also known as JACK TASHJIAN, and it is my specific intention to do so.

George Tashjian died on September 2, 1983. He was survived by his wife Violet and his disinherited son Jack. Prior to the instant litigation, Violet and Jack appealed from a decision of the Register of Wills admitting the will to probate. On April 25, 1985, the parties to the appeal reached an agreement in open court before the Honorable Francis J. Catania of the Court of Common Pleas of Delaware County. Pursuant to this agreement, the appeal was withdrawn with prejudice, and Alice Zarzatian resigned as trustee under the will. The court appointed Michael M. Emuryan, Esq. to serve as trustee in place of Alice Zarzatian.

Mr. Emuryan soon realized that the trust would generate only a modest annual income. He filed a petition in which he requested that the court schedule a hearing in order to determine if a portion of the trust principal should be paid to Mrs. Tashjian. A hearing was held on July 1, 1986. At the hearing, Mr. Emuryan declined to take a position for or against an invasion of the trust principal. He testified as follows:

MR. EMURYAN:

... I have had a chance to meet with the widow, Violet Tashjian, who is represented by Thomas Beagan. The remaindermen, if I can call them that are represented by Joseph Lastowka of our bar. I have met with Mrs. Tashjian with a translator and Tom last year to determine her needs because there’s a provision in the Will which is really the issue today concerning how much I pay, taking against the Will. Taking an amount which may conceivably reduce the estate and affect the remainder interest. Since I can’t really decide the extent of her needs, I have my own ideas. I petitioned for instructions on how I should handle the request for income because there is a provision of the Will which could conceivably be construable to permit invasion.
THE COURT:
All right, what’s the problem? You have a limited amount of income here ...
MR. EMURYAN:
Right.
THE COURT:
And the question is whether or not the trust instrument allows you to invade the principal to take care of her needs and you’re unable to ascertain the extent of her needs, right?
MR. EMURYAN:
Right. I have my own ideas but I don’t want to make the call, sir.

N.T. at 19a-20a and 21a-22a.

The court then sought information concerning Mrs. Tashjian’s financial needs. The parties agreed that Mrs. Tashjian’s annual expenses were approximately $14,000. Counsel for Mrs. Tashjian, however, refused to disclose to the court whether Mrs. Tashjian had any substantial assets at her disposal. He maintained that Mrs. Tashjian was entitled to payments from the trust for her maintenance and support regardless of whether she could pay her expenses from other sources.

On the other hand, counsel for the remaindermen argued that under the decedent’s will, the corpus of the trust should be left intact until Mrs. Tashjian demonstrated that an invasion of the principal was necessary in order for her to pay her expenses. The remaindermen called as a witness Alvin S. Ackerman, Esq., the scrivener of the will, who provided testimony in support of the remaindermen’s interpretation of the trust provision. Counsel for Mrs. Tashjian did not object to this testimony.

On July 2, 1986, the court issued an order denying the petition to invade the principal and directing the trustee to continue to pay Mrs. Tashjian only the trust income. Mrs. Tashjian filed exceptions which were denied on March 17, 1987. On appeal, she contends that the trial court misconstrued her late husband’s will, and that her assets should not be taken into account when determining her eligibility for payments of trust principal. We find that this claim is without merit.

The question of whether a trustee should consider the independent resources of a trust beneficiary has been frequently litigated in Pennsylvania and in other jurisdictions. See generally Annotation, Other Means: Propriety of Considering Beneficiary’s Other Means under Trust Provision Authorizing Invasion of Principal on Behalf of Life Beneficiary, 41 A.L.R.3d 255 (1972). In the majority of cases, Pennsylvania courts have concluded that by establishing a testamentary trust, the testator intended to relieve the beneficiary of the need to pay for living expenses out of her own funds. See, e.g., Greenwald’s Estate, 345 Pa. 119, 26 A.2d 918 (1942); Baylor’s Estate, 249 Pa. 5, 94 A. 442 (1915); Swinson’s Estate, 167 Pa.Super. 293, 74 A.2d 485 (1950); Minnich v. Peoples Trust, Savings and Deposit Co., 29 Pa.Super. 334 (1905). In Demitz’ Estate, 417 Pa. 316, 208 A.2d 280 (1965), the Pennsylvania Supreme Court summarized the case law on this subject by stating that: “Where a trustee has been given discretionary power to invade principal, the general rule is that the existence of an independent estate by a wife is not sufficient justification for a trustee’s refusal to pay principal for her maintenance and support.” 417 Pa. at 320, 208 A.2d at 282. Thus, in the absence of evidence of a contrary intent, an ambiguous trust provision should ordinarily be viewed as authorizing the invasion of trust principal even where the beneficiary has access to substantial income from other sources.

Nevertheless, the general rule described in Demitz’ Estate should not be rigidly or mechanically applied. In any case involving the interpretation of a testamentary trust, the primary goal of the court is to effectuate the intent of the testator. See Pearson’s Estate, 442 Pa. 172, 180, 275 A.2d 336, 339 (1971). Moreover, in order to ascertain testamentary intent, a court must focus first and foremost on the precise wording of the will, and if an ambiguity exists, on the circumstances under which the will was executed. See Taylor’s Estate, 480 Pa. 488, 494, 391 A.2d 991, 994 (1978). Only if the testator’s intent remains uncertain may the court then resort to general rules of construction. Id.

In Lang v. Department of Public Welfare, 515 Pa. 428, 528 A.2d 1335 (1987), the Pennsylvania Supreme Court recently clarified the standard used in determining when a trust beneficiary may compel distribution of trust assets. In Lang, the testator established a trust to pay the costs necessary for the support of his mentally disabled son. The Department of Public Welfare withheld medical assistance payments from the son on the grounds that trust assets were available to pay for the cost of his care at a state mental retardation center. On appeal, the Court held that the trust funds could not be counted as an available resource. In reaching this decision, the Court noted that:

We must ... determine whether a settlor, here the testator, intended that trust assets be used to support a beneficiary, regardless of the availability of other resources, including state assistance. A settlor’s intent must be determined “from all the language within the four corners of the trust instrument, the scheme of distribution and the circumstances surrounding the execution of the trust instrument.” Farmers Trust Co. v. Bashore, 498 Pa. 146, 150, 445 A.2d 492, 494 (1982).

515 Pa. at 441, 442, 528 A.2d at 1342. The Court carefully reviewed the text of the trust, which specifically granted the trustee complete discretion to withhold payments of trust principal, and considered extrinsic evidence concerning the son's receipt of state assistance during the testator’s lifetime. Under these circumstances, the Court concluded that the trust was not designed to pay costs which could be paid from other sources.

As Lang illustrates, the fact that a will establishes a trust for the beneficiary’s support does not create an irrebuttable presumption that all of the beneficiary’s living expenses must be funded from the trust. See also Sea christ’s Estate, 362 Pa. 190, 66 A.2d 836 (1949) (interpreting will as providing that beneficiary must prove dependency before tapping trust principal). In every case where the trust is ambiguous, the court must conduct an individualized inquiry in order to ascertain the intent of the settlor. This case by case approach is consistent with Pennsylvania precedent and reflects the majority rule in other jurisdictions. As one commentator has noted:

It is a question of interpretation whether the beneficiary is entitled to support out of the trust fund even though he has other resources. Where the trustee is directed to pay to the beneficiary or to apply for him so much as is necessary for his maintenance and support, the inference is that the settlor intended that he should receive his support from the trust estate, even though he might have other resources. The settlor may, however, manifest an intention that the trust property should be applied to his support only if and to the extent that he is in actual need, in which case he is not entitled to support out of the trust fund if he has other sufficient resources.

2 A. Scott, The Law of Trusts, § 128.4 at 353-55 (4th ed. 1987). Cf Restatement (Second) of Trusts § 128 comment i (1959) (whether trustee may properly use principal for beneficiary’s support where beneficiary has property of his own depends upon language of trust instrument as interpreted in light of the circumstances).

In the case sub judice, the will is silent as to whether the payments necessary for Mrs. Tashjian’s support should be calculated without reference to her separate estate. However, two factors support the trial court’s conclusion that the extent of her separate estate should be taken into account before the trust corpus is exploited for her benefit.

First, the testator specifically provided that “[M]y Trustee may expend such amounts of principal as my Trustee, in her sole discretion, determines necessary for the support and maintenance of my said wife.” (emphasis added). This reference to the trustee’s sole discretion with respect to the principal is particularly striking when contrasted with the testator’s general statement that “... my Trustee shall pay the net income [of the trust] to my said wife____” The use of an adjective which emphasizes the especially broad or exclusive nature of a trustee’s discretion is evidence that the trustee was granted authority to withhold trust funds from a beneficiary with independent resources. In Lang, the Court emphasized the “complete discretion” conferred upon the trustee by the trust instrument. 515 Pa. at 442, 528 A.2d at 1343. The Court also cited with approval two cases from other jurisdictions in which the trustee’s decision to consider the beneficiary’s resources was approved on account of the “absolute discretion” afforded by the terms of the trust. 515 Pa. at 444, 528 A.2d at 1344 (citing Auchincloss v. City Bank Farmers Trust Co., 136 Conn. 266, 70 A.2d 105 (1949) and In re Watson’s Will, 286 A.D. 950, 142 N.Y.S.2d 731 (1955)).

In the instant case, the will entrusted the trustee with considerable discretion as to the distribution of the trust principal. Since the trustee refused to recommend invasion of the principal, and since the trustee asked the trial court to decide the question, we are reluctant to disturb the trial court’s determination.

Furthermore, as in the Lang case, “[t]he circumstances surrounding the execution of the [the trust] instrument point strongly to testator’s intent to have his trustee consider other resources.” 515 Pa. at 443, 528 A.2d at 1343. At the time the will was written, testator’s widow was seventy-seven years old and could not speak English. Mr. Ackerman, the scrivener of the will, testified that he had known the testator and his wife for twenty-five years, that they had lived in a frugal manner, and that Mrs. Tashjian had no experience handling substantial sums of money. Mr. Ackerman also testified that the testator distrusted his son Jack, whom he disinherited, and that the testator had repeatedly expressed concern that Jack might steal money from Mrs. Tashjian. Finally, Mr. Ackerman noted that he had informed the testator that in addition to any bequest received under the will, and in addition to Social Security benefits, Mrs. Tashjian had a survivorship interest in all property which the couple owned by the entireties; this included bank certificates as well as unencumbered real estate which could be rented to a commercial establishment. This testimony indicates that the testator intended that the trust corpus would serve as a reserve for the widow in the event that her income from other sources proved inadequate to meet her needs.

We conclude that the trial court properly dismissed the petition requesting authorization for the invasion of trust principal. We note, however, that if appellant supplies the trustee with full information on her financial status, the trustee should reconsider whether an invasion of trust principal is appropriate under the terms of the will.

Order affirmed.

      . The parties agree on appeal that the trust yields'' approximately $5000 of income per year.

      . Stoudt v. Department of Public Welfare, 76 Pa.Commw. 576, 464 A.2d 665 (1983), is the only appellate decision cited by the parties in which the trust instrument referred to the trustee’s "sole discretion” concerning the payment of funds to the beneficiary. In Stoudt, the Commonwealth Court held that the trustee was obligated to pay for medical care that would otherwise have been funded by a state assistance program. However, the Stoudt decision was criticized by the Pennsylvania Supreme Court in Lang v. Department of Public Welfare, 515 Pa. at 439-40, 528 A.2d at 1341-42.

      . Appellant contends that the trial court should not have considered extrinsic evidence of testamentary intent. A court may not stray beyond the four corners of the will where the terms of the will are clear and unambiguous. Kelly's Estate, 473 Pa. 48, 373 A.2d 744 (1977). However, if a provision of the will is ambiguous on its face, the court may inquire into the circumstances which surrounded the testator at the time of the will’s execution. See Estate of McKenna, 340 Pa.Super. 105, 489 A.2d 862 (1985); Estate of Schwarzbarth, 320 Pa.Super. 191, 466 A.2d 1382 (1983). The Tashjian will is ambiguous since the "amounts ... necessary for the support and maintenance of my said wife” could refer to the cost of all of the wife’s living expenses, or to the cost of only those living expenses which the wife could not pay from her own independent resources.


author: WIEAND, Judge: DEL SOLE, Judge,

text:
    544 A.2d 72
    COMMONWEALTH of Pennsylvania, Appellant, v. Stephen J. MARKLEY, Appellee.
    Superior Court of Pennsylvania.
    Argued April 28, 1988.
    Filed July 11, 1988.

      Glennis L. Clark, Assistant District Attorney, Allentown, for Com., appellant.
    Diane V. Elliott, Philadelphia, for appellee.
    Before CAVANAUGH, WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

Stephen J. Markley was charged with operating a motor vehicle in Whitehall Township, Lehigh County, on March 19, 1983, while his operating privileges were under suspension for a previous alcohol related incident. This was a summary offense, as defined by 75 Pa.C.S. § 1543(b). Following a hearing before a district justice, Markley was found guilty and was sentenced to pay a fine of one thousand ($1,000) dollars and to undergo imprisonment for a period of ninety (90) days. He then appealed to the Court of Common Pleas of Lehigh County, where he was again found guilty after a trial de novo on October 7, 1983. The trial court deferred sentencing for a period of ten days to allow the filing of post-trial motions; and when such motions were filed on October 17, 1983, sentencing was delayed indefinitely. The notes of testimony were transcribed and filed on April 5, 1984, but neither party thereafter caused defendant’s post-trial motions to be listed for argument. Finally, there having been no activity for more than three years, the Commonwealth, on July 23, 1987, filed a petition and obtained a rule to show cause why the defendant’s post-trial motions should not be dismissed. The trial court heard argument on this motion, at which time the Superior Court’s decision in Commonwealth v. Jannenga, 335 Pa.Super. 77, 483 A.2d 963 (1984), was called to the court’s attention. Thereafter, in reliance on Jannenga, the trial court entered an order dismissing the criminal action and discharging the defendant. The Commonwealth appealed.

Statutes of limitations pertaining to summary motor vehicle offenses have been enacted by the legislature and appear at 42 Pa.C.S. § 5553(a), (b), and (c). Subsection (e) of the same section provides further as follows:

(e) Disposition of proceedings within two years — No proceedings shall be held or action taken pursuant to a summary offense under Title 75 subsequent to two years after the commission of the offense.

The language of 42 Pa.C.S. § 5553(e) was interpreted by this Court in Commonwealth v. Jannenga, supra, to require disposition of summary proceedings in the trial court within two years after the offense. Specifically rejected by the Court was an interpretation which would merely have required the commencement of summary, criminal proceedings within two years.

The procedural posture of the summary proceedings which led to dismissal in Jannenga is on all fours with the procedural posture of the instant case. The defendant’s post-trial motion's, under the procedure in Lehigh County, could have been listed for argument by the Commonwealth as well as by the defendant. Neither party moved to dispose of defendant’s post-trial motions, and a sentence was not imposed within two years of the offense. Because the circumstances of the present case cannot be distinguished from those in Jannenga, we agree with the trial court that Jannenga is controlling.

In Commonwealth v. Stover, 372 Pa.Super. 35, 538 A.2d 1336 (1988), another panel of this Court held that the provisions of 42 Pa.C.S. § 5553(e) must be raised by the defendant in the trial court via post-trial motion or motion to dismiss filed before sentence has been imposed. If not so raised, the limitation of the statute will be deemed to have been waived.

In the instant case, although the defendant did not raise the issue via written motion filed post-trial, the statute was nevertheless called to the attention of the trial court, which, in reliance thereon, dismissed the prosecution and discharged the defendant before sentence had been imposed. Under these circumstances, it cannot be said that the limiting provisions of the statute were waived.

The mischief which is being caused by 42 Pa.C.S. § 5553(e) may suggest to the legislature that the provisions thereof should be repealed or at least amended so as to prevent a dilatory defendant from benefitting from his or her own delay.

Order affirmed.

DEL SOLE, J., files a concurring statement.

DEL SOLE, Judge,

concurring:

I join the disposition of this case and the analysis of the majority in all respects save one. I disagree with the majority that 42 Pa. C.S.A. § 5553(e) is creating mischief. Rather, I believe that the legislature correctly determined that summary offenses should be disposed of at the trial court level within two years from the date of commission.

To claim that the defendant in this case benefited from his own delay ignores the responsibility of the Commonwealth to monitor its cases and to move them forward for disposition before the trial courts. As the majority opinion correctly points “the defendant’s post-trial motions, under the procedure in Lehigh County, could have been listed for argument by the Commonwealth as well as by the defendant.”. To label any delay in the disposition of this case as solely being the responsibility of the defendant ignores the prior statement in the majority’s opinion that the Commonwealth could have listed the matter for disposition.

      . The offense is defined at 75 Pa.C.S. § 1543(b) as follows:
      Any person who drives a motor vehicle on any highway or trafficway of this Commonwealth at a time when their operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) or because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3731 shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.


author: TAMILIA, Judge:

text:
    544 A.2d 448
    Deborah Forney DUNN, Executrix of the Estate of Joseph E. Dunn, Appellant, v. Alene B. DUNN.
    Superior Court of Pennsylvania.
    Argued March 17, 1988.
    Filed June 2, 1988.
    Reargument Denied July 21, 1988.

      Rosanna D. Weissert, Pittsburgh, for appellant.
    Barbara J. Shah, Bethel Park, for appellee.
    Before TAMILIA, POPOVICH and HOFFMAN, JJ.
   TAMILIA, Judge:

Appellant/second wife, executrix of the estate of Joseph Dunn, appeals from a May 4, 1987 Order which denied her motion for post-trial relief and entered the March 16, 1987 Order as a final Order. Facts and procedural history are as follows.

Decedent/husband Joseph Dunn and appellee/first wife Aleñe Dunn were married in June of 1957 and separated in December of 1981. A divorce complaint was filed by decedent-husband on December 20, 1984 and a final Decree in divorce was entered on April 29, 1985. Decedent then married appellant in June of 1985, by whom he had one child. Meanwhile, equitable distribution proceedings with appellee were pending. Decedent was killed in February of 1986 in an industrial accident. The widow, appellant/second wife, as executrix, was substituted by an April 7, 1986 Order in place of her husband in the pending equitable distribution action. Judge Wettick took testimony on equitable distribution in January of 1987 and on March 16, 1987 entered an Order awarding all marital assets to appellee/first wife. Appellant’s motion for post-trial relief was denied by the May 4, 1987 Order in question and this timely appeal followed.

On appeal, appellant/second wife/executrix contends the court abused its discretion by considering her separate assets, in failing to award any part of the equitable estate to the estate of Joseph Dunn, and in failing to fully set forth the valuation of assets and dates of valuation. She further argues that applying equitable distribution criterion to the husband’s estate rendered it insolvent for decedent estate purposes.

Our standard of review is clear. “The court decides matters of alimony, equitable distribution and assessment of fees in its discretion; we do not disturb its decisions on these issues unless it plainly abused that discretion.” Chaney v. Chaney, 343 Pa.Super. 77, 82, 493 A.2d 1382, 1385 (1985).

After a thorough review of appellant’s brief, we reject her contention that the court here committed error. In his March 18, 1987 Memorandum and Order, Judge Wettick specifically states, “We award to the wife the marital residence and the pension benefits. We make this award on the basis of her needs, the length of the marriage, and the parties’ standard of living during the marriage.” Memorandum and Order at p. 2. Again, in his Opinion, Judge Wettick says, “[O]ur equitable distribution award is based on the factors set forth in Section 401(d) of the Divorce Code. The factors that we found to be relevant were the length of the marriage, the first wife’s age, her vocational skills and needs, the needs of the second wife and her child, the first wife’s contributions to the family, the first wife’s limited opportunity for future acquisition of capital assets, the sources of income of the first and the second wife, the value of property set apart to the second wife, the standard of living that the parties established during the marriage, and the economic circumstances of the first wife and the second wife at the time the division of property was to become effective.” Slip Op., Wettick, J., 10/9/87, pp. 7-8. Thus, the court says it basically took into account each of the factors listed in 23 P.S. § 401(d) which are to be considered upon equitable distribution of marital property. Judge Wettick explains his references to the needs of the second wife and her children as follows:

' While the reasonable needs and the other relevant circumstances of the first wife justify this equitable distribution award, we cannot base an equitable distribution award solely upon her reasonable needs and circumstances if the husband’s needs and circumstances justify an award of a portion of the marital property to his dependents. The reasonable needs of the husband include any reasonable needs of his second wife and their child because they looked to him for support at the time of his death.

Slip Op. at 5.

Contrary to appellant’s contention, the decedent’s estate was charged with the obligations of the marital estate as determined by the Divorce Code and its provisions for equitable distribution. These claims, timely filed during the life time of the husband, are not defeated by his death.

We have evaluated each of the claims set forth in appellant’s brief and we are unable to find the court committed an abuse of discretion in its equitable distribution Order. We accordingly affirm that Order.

Order affirmed.