author: KELLY, Judge:

text:
    652 A.2d 936
    T.J.B., Appellee, v. E.C. and Thomas “Doe” and Donna “Doe”. Appeal of Thomas “DOE” and Donna “Doe”, Appellants. In re ADOPTION OF M.J.C., Appellee. Appeal of Thomas “DOE” and Donna “Doe”, the Persons who Filed the Report of Intention to Adopt, and Samuel C. Totaro, Jr., Esquire, Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 4, 1994.
    Filed Jan. 20, 1995.

      Samuel C. Totaro, Bensalem, John S. Thome, Jr., Doylestown, for Thomas “Doe” and Donna “Doe”.
    Michael H. Applebaum, Bensalem, for T.J.B.
    Robert H. Yaroschuk, Doylestown, for M.J.C.
    John S. Thome, Jr., Doylestown, for E.E.C.

      Before ROWLEY, President Judge, and KELLY and CERCONE, JJ.
   KELLY, Judge:

In this appeal we are asked to determine whether the trial court erred in denying appellants’, the pre-adoptive parents’, Thomas Doe’s and Jane Doe’s, petition to involuntarily terminate the appellee’s, the natural father’s, T.J.B.’s, parental rights to M.J.C., a male infant less than six months old, and awarding legal and physical custody of M.J.C. to appellee instead of appellants. We hold that the trial court’s denial of appellants’ petition to involuntarily terminate appellee’s parental rights to M.J.C. and its custody award were correct; M.J.C. shall remain in appellee’s custody. Thus, we affirm.

The factual background and procedural history of this case are as follows. In March 1993, while incarcerated at the Montgomery County Correctional Facility at Eagleville, E.C., M.J.C.’s natural mother, learned that she was pregnant. At that time, E.C. contacted appellee and informed him that she was carrying his child. Appellee denied that he had impregnated E.C. and immediately requested that paternity tests be conducted. This denial of paternity by appellee continued throughout E.C.’s pregnancy.

During the course of the next few months, E.C. made plans to put the child that she was carrying up for adoption. E.C. initially intended to place her child with a married couple whom she met through her sister-in-law. This couple subsequently retained the services of Samuel C. Totaro, Jr., Esquire, to represent them in the adoption process. After a financial dispute erupted between E.C. and the married couple regarding the medical expenses of child birth, E.C. refused to allow that couple to adopt her child. Consequently, Mr. Totaro introduced E.C. to appellants, another couple who wished to adopt her child and E.C. decided that she would allow appellants to adopt her child.

M.J.C. was born on August 13,1993. Thereafter, on August 16, 1993, E.C. consented to M.J.C.’s adoption and M.J.C. was delivered to appellants by Mr. Totaro. M.J.C. resided with appellants for approximately the first six months of his young life. Appellants considered M.J.C. to be their child, despite the fact that only M.J.C.’s natural mother had consented to his adoption.

During the months of July and August, appellee received several letters and phone calls from Mr. Totaro soliciting his consent to ■ appellants’ adoption of M.J.C. Appellee did not respond to Mr. Totaro’s inquiries because he continued to deny that he had impregnated E.C. Appellee refused to contemplate the decision of whether to consent to M.J.C.’s adoption unless he was sure that M.J.C. was his child.

Approximately one month after M.J.C.’s birth, appellee spoke with Mr. Totaro directly for the first time. Appellee continued to deny that he was M.J.C.’s natural father and requested that a paternity test be administered. On September 20, 1993, these tests were conducted, at appellee’s expense, on appellee and E.C.; on September 22, 1993, they were conducted, again at appellee’s expense, on M.J.C. Resultantly, in early November 1993, appellee learned that the paternity tests indicated that he was M.J.C.’s natural father.

By letter dated December 8, 1993, addressed to Mr. Totaro, appellee, through his original counsel in this matter, James Cunilio, Esquire, acknowledged paternity of M.J.C. for the first time. In this letter, appellee also informed appellants and Mr. Totáro that he would like to meet appellants and would not consent to M.J.C.’s adoption unless he could still have some access to M.J.C. Specifically, appellee demanded that an “open adoption” with scheduled visitations be established. Moreover, appellee informed appellants and Mr. Totaro that he would seek custody of M.J.C. within two weeks of the date, of the letter if a visitation schedule was not immediately established. In response to appellee’s December 8, 1993 letter, appellants, through Mr. Totaro, filed petitions with the trial court on December 13, 1993 to involuntarily terminate appellee’s parental rights to M.J.C. and confirm E.C.’s consent to M.J.C.’s adoption. Neither of these petitions were served on appellee or E.C. until February 3, 1994 despite several written correspondences between Mr. Totaro and E.C. and Mr. Totaro and Mr. Cunilio in the later half of the month of December.

On December 14, 1993, the trial court issued a preliminary decree establishing January 9,1994 as the date for the hearing regarding the petitions filed by Mr. Totaro on December 13, 1993 and ordering notice to be given to appellee and E.C. Subsequently, pursuant to Mr. Totaro’s request for a continuance, on December 27, 1993, the trial court issued another preliminary decree. This second decree established February 9, 1994 as the date for the hearing regarding appellants’ December 13, 1993 petitions and again ordered that notice be given to appellee and E.C. No contact occurred between appellants and appellee or appellants and E.C. from December 27, 1993 until January 28, 1994. By letter dated January 28, 1994, appellee, through new counsel, Michael H. Applebaum, Esquire, informed appellants that he would seek custody of M.J.C. The following day, E.C., in a letter addressed to Mr. Totaro, revoked her consent to the adoption of M.J.C. In this letter, E.C. expressed her desire to have M.J.C. placed in the custody of appellee.

A number of events then occurred on January 31, 1994. Appellants, through Mr. Totaro, petitioned the trial court to involuntarily terminate E.C.’s parental rights to M.J.C. Consequently, the trial court issued a preliminary decree establishing February 9, 1994 as the hearing date for appellants’ petition to involuntarily terminate E.C.’s parental rights and ordering notice to be given to appellee and E.C. Appellee, through Mr. Applebaum, filed a complaint for custody of M.J.C. Appellants, through Mr. Totaro, also filed a petition with the trial court to consolidate their petitions to involuntarily terminate appellee’s and E.C.’s parental rights to M.J.C. with appellee’s custody complaint. Finally, the trial court issued an order consolidating appellants’ involuntary termination petitions with appellee’s custody complaint for trial purposes and staying the custody complaint. Prior to the issuance of the orders dated January 31, 1994, neither appellee nor E.C. were notified that appellants, through Mr. Totaro, had filed petitions to involuntarily terminate their parental rights to M.J.C. On February 3, 1994, Linda K. Caraccappa, Esquire, counsel for Mr. Totaro, served the following documents upon appellee’s and E.C.’s counsel: the January 31, 1994 consolidation order; appellant’s consolidation motion; the January 31, 1994 preliminary decree; and appellants’ separate petitions to involuntarily terminate appellee’s and E.C.’s parental rights to M.J.C.

The consolidated hearing took place on February 10, 1994, in which the trial court denied appellants’ petitions to involuntarily terminate the parental rights of appellee and E.C. and awarded custody of M.J.C. to appellee effective February 14, 1994. In compliance with the February 10,1994 order, M.J.C. was delivered to appellee on February 14,1994 and is currently in appellee’s custody. After considering appellants’ post-trial motions, the trial court, on April 15, 1994, entered the February 10, 1994 order as a final decree.

Appellants filed a notice of appeal with this Court from the February 10, 1994 custody order on February 14, 1994. On May 4,1994, appellants filed a notice of appeal with this Court from the April 15, 1994 order entering the February 10, 1994 order denying appellants’ petition to involuntarily terminate the parental rights of appellee and E.C. to M.J.C. as a final decree. Subsequently, these appeals were consolidated by this Court.

In their consolidated appeals, appellants raise the following issues:

WHETHER PRE-ADOPTIVE PARENTS (APPELLANTS HEREIN) HAVE STANDING TO MAINTAIN CUSTODY OF A MINOR CHILD, WHEN THE PREADOPTIVE PARENTS HAD FILED A REPORT OF INTENTION TO ADOPT THE SAID CHILD, AND THE CHILD HAD BEEN IN THEIR SOLE AND EXCLUSIVE PHYSICAL CUSTODY AND CARE FOR ALL BUT THE FIRST THREE (3) DAYS OF HIS LIFE AND FOR WHOM THEY STOOD IN LOCO PARENTIS, AND WHETHER THE LOWER COURT CAN ORDER A TRANSFER OF CUSTODY OF THE SAID CHILD FROM THE SAID PRE-ADOPTIVE PARENTS TO A NATURAL PARENT WITHOUT FIRST CONDUCTING A FULL EVIDENTIARY HEARING ON THE “BEST INTERESTS OF THE CHILD.”

(Appellants’ Superior Court Docket Number 427 Philadelphia 1994 Brief at 6).

SECTION [sic] 23 PA.C.S.A. SECTION 2711(a)(6) OF THE ADOPTION ACT APPLIES TO A NATURAL MOTHER WHO HAS PREVIOUSLY SIGNED A CONSENT, BUT LATER REVOKES IT IN ACCORDANCE WITH 23 PA.C.S. [sic] SECTION 2711(C).
IF A PUTATIVE FATHER KNOWS OF THE BIRTH OF A CHILD, HAS FAILED TO MARRY THE OTHER PARENT, HAS FAILED TO RESIDE WITH THE CHILD, AND DURING THE FOUR MONTHS IMMEDIATELY PRECEDING THE FILING OF THE PETITION TO TERMINATE HIS RIGHTS HAS FAILED TO MAINTAIN SUBSTANTIAL AND CONTINUING CONTACT WITH THE CHILD AND HAS FAILED TO PROVIDE SUBSTANTIAL SUPPORT FOR THE CHILD, HIS PARENTAL RIGHTS SHALL BE TERMINATED UNDER SECTION 2511(a)(B) OF THE ADOPTION ACT.

(Appellants’ Superior Court Docket Number 1688 Philadelphia 1994 Brief at 13 and 19).

Introductorily, we note that, pursuant to a properly filed petition, the trial court may terminate the rights of a parent with regard to a newborn child when the parent:

knows or has reason to know of the child’s birth, does not reside with the child, has not married the child’s other parent, has failed for a period of four months immediately preceding the filing of the petition to make reasonable efforts to maintain substantial and continuing contact with the child and has failed during the same four-month period to provide substantial financial support for the child.

28 Pa.C.S.A. § 2511(a)(6). But, the class of people eligible to file a petition to terminate a parent’s rights to his or her child is limited. A petition to terminate the parental rights of a child under eighteen years of age may only be filed by one of the following people:

(1) Either parent when termination is sought with respect to the other parent.
(2) An agency.
(3) The individual having custody or standing in loco parentis to the child and who has filed a report of intention to adopt required by section 2531 (relating to report of intention to adopt).

23 Pa.C.S.A. § 2512(a)(1) through (3). The status of in loco parentis for purposes of filing a petition to involuntarily terminate the parental rights of a parent to his or her child has been aptly summarized by this Court as follows:

Pennsylvania courts recognize that a person may “put himself in the situation of a lawful parent by assuming the obligations incident, to the parental relationship without going through the formality of a legal adoption. This status, known as ‘in loco parentis’ embodies two ideas; first, the assumption of a parental status, and second, the discharge of parental duties.” Commonwealth ex rel. Morgan v. Smith, 429 Pa. 561, 565, 241 A.2d 531, 533 (1968). “The rights and liabilities arising out of that relation are, as the words imply, exactly the same as between parent and child.”

In re Adoption of J.M.E., 416 Pa.Super. 110, 114, 610 A.2d 995, 997 (1992), allocatur denied, 533 Pa. 612, 618 A.2d 402 (1992) (quoting In re Crystal D.R., 331 Pa.Super. 501, 505, 480 A.2d 1146, 1148 (1984) (citations omitted)).

Instantly, the status of in loco parentis to M.J.C. must be allocated to appellants for the period in which M.J.C. was in their custody. From the time that he was three days old, appellants assumed parental status over and discharged parental duties towards M.J.C. Although appellants did not have the chance to complete the formal process necessary to adopt M.J.C., their relationship with him during the six months that he lived with them was exactly the same as the relationship that exists between parent and child. Appellants expected this relationship to be permanent. Further, appellants filed their report of intent to adopt M.J.C. on August 23, 1993. Therefore, appellants’ ability to file a petition to terminate the parental rights of appellee and E.C. to M.J.C. cannot and was not contested.

Despite properly allowing appellants to petition for the involuntary termination of appellee’s and E.C.’s parental rights to M.J.C., the trial court specifically found that appellants lacked standing to contest custody of M.J.C. Appellants, however, assert their standing to seek custody of M.J.C. for primarily the same reasons that they were allowed to petition for the involuntary termination of the parental rights of appellee and E.C.; they filed a report of intent to adopt M.J.C. and stood in loco parentis to M.J.C. Specifically, appellants assert their standing in loco parentis to M.J.C. because they assumed custody of M.J.C. on August 16, 1993, three days after his birth, until the trial court awarded custody of him to appellee in February 1994. Appellants emphasize that a strong emotional bond developed between themselves and M.J.C. because of the permanency that their relationship was supposed to encompass; appellants claim that they believed that M.J.C. would become their adoptive child. In support of these claims, appellants rely primarily on Mitch v. Bucks County Children & Youth S.S. Agency, 383 Pa.Super. 42, 556 A.2d 419 (1989), allocatur denied, 524 Pa. 621, 571 A.2d 384 (1989).

Although appellants’ in loco parentis status qualifies them to petition to terminate the parental rights of appellee and E.C. to M.J.C., this status does not also necessarily provide them standing to seek custody of M.J.C. The reality of this case is that appellants are not seeking custody of M.J.C.; they want to adopt him. Appellants’ actions evidence this fact. Appellants are attempting to gain parental rights to M.J.C. while excluding his natural parents from contact with him by filing petitions to involuntarily terminate the natural parents’ parental rights to M.J.C. Consequently, the provisions of the Adoption Act must govern the disposition of this case. See Commonwealth ex rel. Grimes v. Yack, 289 Pa.Super. 495, 519-20, 433 A.2d 1363, 1376 (1981) (Adoption Act governs action by pre-adoptive parents who seek custody of infant by attempting to involuntarily terminate the parental rights of natural mother who revoked her consent to the adoption and natural father who never consented to the adoption).

Consent to adopt a child is required of the natural parents of a child who has yet to reach the age of eighteen. 23 Pa.C.S.A. § 2711(a)(3). This consent only remains valid if it is not revoked before the entrance of a decree terminating the natural parents’ parental rights to a child or a decree of adoption. 23 Pa.C.S.A. § 2711(c); 23 Pa.C.S.A. § 2711(d)(1). A long line of Pennsylvania case law establishes that a natural parent’s revocation of his or her consent to adopt can occur at any time prior to the entry of the final adoption decree unless a termination of parental rights has occurred. Commonwealth ex rel. Grimes v. Yack, supra at 521, 433 A.2d at 1377 (citations omitted). Only when an involuntary termination of a parent’s parental rights to a child occurs will the consent of that parent not be required for a valid adoption to occur. 23 Pa.C.S.A. § 2714.

Neither of the natural parents of M.J.C. voluntarily terminated their parental rights to him. Thus, it must be determined whether appellee’s or E.C.’s parental rights to M.J.C. should be terminated involuntarily. The crux of this appeal rests upon the resolution of this involuntary termination of parental rights issue. If appellee or E.C. still possess parental rights to M.J.C., then appellants cannot contest appellee’s custody of his child. This is the reason that appellants aver that appellee’s and E.C.’s parental rights should be terminated under 23 Pa.C.S.A. § 2511(a)(6). Appellants argue that appellee’s and E.C.’s lack of contact with M.J.C. during the six months following his birth requires this Court to terminate the parental rights of appellee and E.C. to M.J.C. despite appellee’s lack of knowledge or proof that M.J.C. was his child for three months after M.J.C.’s birth and E.C.’s revocation of her consent to adopt.

Terminating the parental rights of the natural parent to his child carries with it a constitutional significance because of the importance of the rights involved. In re J.W., 396 Pa.Super. 379, 388, 578 A.2d 952, 957 (1990). Consequently, clear and convincing evidence is necessary to prove the statutory grounds necessary to terminate parental rights. Id. See In re Adoption of J.J., 511 Pa. 590, 593-94, 515 A.2d 883, 885-86 (1986) (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). Clear and convincing evidence in this context, as explained by our Supreme Court, means the following:

... testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.

In re Christopher Stephan Atencio, — Pa. -, 650 A.2d 1064, 1066 (1994); In re J.W., supra at 388, 578 A.2d at 957 (quoting Matter of Sylvester, 521 Pa. 300, 304, 555 A.2d 1202, 1203-04 (1989)). Additionally, our inquiry, when reviewing the trial court’s determination regarding the involuntary termination of parental rights is limited.

When reviewing a decision whether to terminate involuntarily parental rights, our inquiry is limited to whether the decision of the court below was supported by competent evidence ... Absent an abuse of discretion, an error of law or insufficient evidentiary support for the chancellor’s decision, the decree must stand.

In re E.S.M., 424 Pa.Super. 296, 302, 622 A.2d 388, 391 (1993) (citations omitted). See also In re Adoption of Christopher Stephan Atencio, supra.

Instantly, we conclude that the trial court correctly denied appellants’ petition to terminate appellee’s parental rights to M.J.C. To terminate appellee’s parental rights to M.J.C., appellants had to clearly and convincingly prove to the trial court the following: appellee knew or had reason to know of his child’s birth, appellee did not live with M.J.C., appellee and E.C. were not married, and appellee failed to make reasonable efforts to maintain substantial and continuing contacts with his child and has failed to substantially support his child financially for the four months preceding appellants’ filing of the termination petition. If appellants had proven the existence of all of these factors to the trial court by clear, direct, and weighty testimony, then the trial court could have terminated appellee’s parental rights to M.J.C. But, appellants failed to satisfy this burden.

Although appellee knew that M.J.C. was born on August 13, 1993, the record clearly reveals that appellee did not know nor did he acknowledge that he was M.J.C.’s father until after he received the results of the paternity tests in early November 1993. Less than two months after M.J.C.’s birth, appellee made reasonable efforts, at his own expense, to determine whether M.J.C. was in fact his child. Appellee spoke with Mr. Totaro about M.J.C. approximately one month after M.J.C. was born. As a result of this conversation, appellee paid for all the paternity tests necessary to find out if he actually was M.J.C.’s father. These tests were completed before M.J.C. was a month and a half old.

Subsequently, within a month of receiving the results of the paternity tests, appellee, in the letter dated December 8,1993, stated that he would petition for custody of M.J.C. unless appellants consented to a visitation schedule which would allow appellee to have a relationship with his child. In response to this letter, appellants petitioned to involuntarily terminate appellee’s parental rights to M.J.C. on December 13, 1993 without even notifying appellee or his attorney. Thus, 23 Pa.C.S.A. § 2511(a)(6) requires an examination of the four months prior to December 13, 1993. Specifically, we must determine whether appellee made reasonable efforts to maintain continuing and substantial contacts with M.J.C. during the four months between M.J.C.’s birth and the filing of appellants’ petition to involuntarily terminate appellee’s parental rights to M.J.C.

Appellee’s first efforts to maintain continuing and substantial contacts with M.J.C. occurred in September 1993 when he began the process to determine his paternity of M.J.C. Appellee hired an attorney, Mr. Cunilio, to represent him and protect his parental rights to M.J.C. in case it was proven that M.J.C. was his child. Subsequently, appellee paid for all the necessary tests to determine the likelihood of his paternity of M.J.C. These tests were conducted on appellee and E.C. on September 20, 1993 and on M.J.C. on September 22, 1993. Finally, within one month of receiving the results of the paternity tests, appellee expressly stated, via the December 8, 1993 letter, that he wanted to establish a visitation schedule with M.J.C. or he would file for custody. Therefore, we hold that appellee’s actions during the four months prior to the filing of appellants’ petition to involuntarily terminate his parental rights to M.J.C. constituted reasonable efforts to maintain continuing and substantial contacts with M.J.C.

Moreover, actions taken by appellee between the appellants’ filing of their petition to involuntarily terminate his parental rights to M.J.C. on December 13, 1993 until appellee received notice of this petition on or after January 31, 1994 can also be used to show that appellee made reasonable efforts to maintain continuing and substantial contacts with M.J.C. Notice that a petition to terminate a parent’s parental rights to his child has been filed is not required until ten days before the termination hearing. 23 Pa.C.S.A. § 2503(b); 23 Pa. C.S.A. § 2513(b). When determining whether to terminate a parent’s rights to his child under 23 Pa.C.S.A. § 2511(a)(6), the trial court cannot consider the parent’s efforts to remedy the conditions described in the involuntary termination petition “which are first initiated subsequent to the giving of notice of the filing of the petition.” 23 Pa.C.S.A. § 2511(b). Impliedly, this means that a parent’s efforts to assume his parental duties towards his child before receiving notice of the petition to involuntarily terminate his parental rights can be considered by the trial court when ruling upon the petition.

On December 14, 1993, December 27, 1993, and January 31, 1994, the trial court ordered that appellee be notified of the hearing regarding appellants’ petition to involuntarily terminate his parental rights to M.J.C. But, the record reveals that appellee did not receive notice of appellants’ petition to involuntarily terminate his parental rights to M.J.C. until January 31, 1994 at the earliest.

By letter dated January 28, 1994, appellee, through his newly retained counsel, Mr. Applebaum, informed appellants and Mr. Totaro that he intended to seek custody of M.J.C. Thus, less than three months after learning of his paternity of M. J.C. and before being notified of the petition to involuntarily terminate his parental rights to M.J.C., appellee sought custody of his child. Therefore, we conclude that both the actions taken by appellee before being notified of the petition to involuntarily terminate his parental rights to M.J.C. and his actions before this petition was actually filed on December 13, 1993 unequivocally established that the trial court correctly denied appellants’ petition to involuntarily terminate appellee’s parental rights to M.J.C. The competent evidence in this case supported the trial court’s findings that appellee’s parental rights to M.J.C. should not be terminated involuntarily. Moreover, the trial court did not misapply the law or abuse its discretion by failing to involuntarily terminate appellee’s parental rights to M.J.C.

The trial court’s refusal to terminate the parental rights of E.C. was also proper. A hearing must be held to confirm the termination of the parental rights of a natural parent to her child. 23 Pa.C.S.A. § 2503(c); 23 Pa.C.S.A. § 2504(b). A natural mother who consents to the adoption of her child may revoke this consent at any time prior to entrance of a court decree confirming her consent or otherwise terminating her parental rights to her child if she serves a written statement of the revocation of her consent upon the adult to whom she relinquished her consent. 23 Pa.C.S.A. § 2711(c); 23 Pa. C.S.A. § 2711(d)(1). Appellants, however, assert that even though E.C. revoked her consent to the adoption of M.J.C., E.C.’s parental rights to M.J.C. are still subject to involuntary termination.

To consent to the adoption of her child, the natural parent must sign a document which includes the following relevant language:

I understand I may revoke this consent to permanently give up all rights to this child by placing the revocation in writing and serving it upon the agency or adult to whom the child was relinquished.
I understand I may not revoke this consent after a court has entered a decree confirming this consent or otherwise terminating my parental rights to this child. Even if a decree has not been entered terminating my parental rights I may not revoke this consent after a decree of adoption of this child is entered.

23 Pa.C.S.A. § 2711(d)(1). By mandating that a natural parent consenting to the adoption of her child sign a document which provides that she can revoke her consent at any time prior to a court decree confirming her consent or terminating her parental rights to her child, the General Assembly accorded great weight to the natural parent’s ability to revoke her consent before the final determination in the adoption process. Significantly, the General Assembly placed no specific time limit upon the natural parent’s ability to revoke her consent.

Instantly, E.C. revoked her consent before any hearings regarding the custody of M.J.C. occurred. On December 13, 1993, appellants petitioned to confirm E.C.’s consent to the adoption of M.J.C. Before receiving notice of this petition, by letter addressed to Mr. Totaro and dated January 29, 1994, E.C. revoked her consent to the adoption of M.J.C. This revocation occurred prior to any hearing concerning the confirmation of her original consent to the adoption of M.J.C. which would have terminated her parental rights to M.J.C. Therefore, we conclude that E.C.’s revocation complied with both the laws of this Commonwealth and the language stated in the consent to M.J.C.’s adoption document she executed on August 16, 1993, and must be recognized.

Two days after E.C. exercised her specific right to revoke her consent to M.J.C.’s adoption, appellants petitioned to terminate E.C.’s parental rights to M.J.C. pursuant to 23 Pa.C.S.A. § 2511(a)(6). Consequently, we must examine, as we did with appellee, the four months prior to appellants’ filing of this petition to determine whether the termination of E.C.’s parental rights to M.J.C. is merited. Once per month, after M.J.C. was adopted, appellee received letters from Mr. Totaro informing her of M.J.C.’s well-being. More importantly, however, is the fact that E.C. revoked her consent to M.J.C.’s adoption two days before appellants filed their involuntary termination petition. By indicating that she wanted appellee to raise their child, E.C. made a reasonable effort to maintain continuing and substantial contact with M.J.C. At the hearing, E.C. testified that if M.J.C. were with appellee rather than appellants, she would still have some hope of forming a relationship with her child. See N.T. February 10, 1994 at 225. Therefore, the trial court did not abuse its discretion or misapply the law by refusing to involuntarily terminate E.C.’s parental rights because E.C. made reasonable efforts to maintain contact with M.J.C. during the four months prior to appellants’ filing of the petition to involuntarily terminate her parental rights to M.J.C.

Because appellants failed to successfully petition for the involuntary termination of appellee’s and E.C.’s parental rights to M.J.C., the trial court denied appellants standing under the Adoption Act to challenge appellee’s custody of M.J.C. For standing to exist, the party seeking relief must be aggrieved or adversely affected in some way. In re Adoption of B.E.W.G., 355 Pa.Super. 554, 560, 513 A.2d 1061, 1064 (1986); Mitch v. Children & Youth S.S. Agency, supra at 46, 556 A.2d at 421. An immediate, direct, and substantial injury must be alleged for the aggrieved or adversely affected party to possess standing to challenge a matter via the judicial process. In re Adoption of B.E.W.G., supra at 560, 513 A.2d at 1064; Mitch v. Children & Youth S.S. Agency, supra at 46, 556 A.2d at 421. Thus, standing under the Adoption Act requires that the complaining party be aggrieved or adversely affected.

Before a decree of adoption can be entered, a petition for adoption must be accepted by the court. 23 Pa.C.S.A. § 2902(a). All of the consents necessary to adopt a child must be attached to the adoption petition or the petition for adoption must set forth the basis upon which such consents are not required {i.e., the involuntary termination of the parental rights of the natural parent or parents). 23 Pa.C.S.A. § 2701(7). Therefore, for the pre-adoptive parents to be aggrieved or adversely affected by the judicial process when they are attempting to adopt a child under the Adoption Act, the direct, immediate, and substantial injury they must set forth will not exist without their possession of all the consents necessary to complete the adoption petition or a valid basis for which these consents are not required. See Commonwealth ex rel. Grimes v. Yack, supra 289 Pa.Super. 295, 433 A.2d 1363 (no standing under the Adoption Act exists for pre-adoptive parents who seek to gain custody of infant when they fail in their attempt to involuntarily terminate the parental rights of the natural parents).

Appellants are now ineligible to adopt M.J.C. because appellee never consented to M.J.C.’s adoption and E.C. properly revoked her consent. The fact that appellants, as they allege, stood in loco parentis to M.J.C. at one time is irrelevant for purposes of their standing to challenge appellee’s custody of M.J.C. under the Adoption Act. Appellants’ in loco parentis status vis a vis M.J.C. only allowed them to petition for the involuntary termination of appellee’s and E.C.’s parental rights to M.J.C. Once this petition was denied and M.J.C. was delivered to appellee, appellants’ in loco parentis status to M.J.C. ended, along with their ability to adopt him. The Adoption Act does not allow pre-adoptive parents to challenge the natural parents’ ability to have custody of their child when the parental rights of the natural parents have not been terminated and the natural parent’s consent to the adoption has not been given or has been properly revoked. Resultantly, appellants are not aggrieved or adversely affected in any way by the trial court’s award of custody of M.J.C. to appellee. Because appellants are ineligible to adopt M.J.C. and a decree of adoption could not be entered in appellants’ favor, appellants suffer no immediate, direct, or substantial injury resulting from the trial court’s custody award that is correctable by a judicial proceeding. They lack standing to challenge it.

Based upon the foregoing analysis, we affirm the trial court’s denial of appellants’ petition to involuntarily terminate the parental rights of appellee and E.C. to M.J.C. and its award of custody of M.J.C. to appellee.

Orders affirmed.

      . Paternity tests cannot be conducted on a child until after the child is born.

      . By filing this petition, appellants impliedly revoked their earlier petition to confirm E.C.’s consent to M.J.C.'s adoption.

      . This appeal is designated Superior Court Docket Number 427 Philadelphia 1994.

      . This appeal is designated Superior Court Docket Number 1688 Philadelphia 1994.

      . A newborn child is a baby less than six months of age. 23 Pa.C.S.A. § 2102.

      . Besides attempting to involuntarily terminate the parental rights of M.J.C. 's natural parents, appellants relentlessly sought appellee’s consent to their adoption of M.J.C. during the period immediately preceding and after M.J.C.’s birth. Moreover, appellants filed the report of intent to adopt M.J.C. on August 23, 1993. These actions, coupled with the legal steps appellants took after receiving appellee’s December 8, 1993 letter, clearly demonstrate appellants' intent to adopt M.J.C. and not merely gain custody of him.

      . 23 Pa.C.S.A. § 2101 et seq.

      . As already stated, appellee never consented to the adoption of M.J.C. and, on January 29, 1994, E.C. revoked the consent that she had given to the adoption of M.J.C.

      . The legislative history of 23 Pa.C.S.A. § 2511(a)(6) clearly indicates that the General Assembly did not intend to deprive a natural father of his parental rights to his child when he does not, as in this case, know that he has a child. This legislative intent is best exemplified by the following exchange between Ms. Josephs and Mrs. Hagarty approximately six months prior to the passage of the May 22, 1992 amendments to the Adoption Act:
      Ms. JOSEPHS. I want to end this with a number of questions on the grounds for involuntary termination. I have been raising these problems and I want to put it in the form of questions because I am concerned about parents’ rights to their biological children.
      Page 10, line 15, section 2511, subsection (6). Mr. Speaker, it seems to me we could have a hypothetical where a newborn child was born. The father may or may not know of the pregnancy. The father does not reside with the child because the mother does not wish that or the father is not available to be free in choosing his place of residence. He has not married the child’s other parent because the child's other parent does not wish that. He has failed for a period of 4 months immediately preceding the filing of the petition to maintain substantial and continuing contact with the child, perhaps because he does not know there is a child or perhaps because the other parent does not allow him to do it or perhaps because he is in jail or in the military, and he has not managed to support that child within the 4 months preceding the filing of the petition because he does not have the money, because the other parent will not take the money, because he is in jail, because he is in the militaiy.
      Do you not think it is unfair to deprive that father of rights to his natural child?
      Mrs. HAGARTY. Mr. Speaker, that father would not, under any circumstances, be deprived of rights to his natural child. This section makes it clear, number one, that the father must know or have reason to know of the birth of the child. Secondly, case law is abundantly clear that incarceration or other obstacles to parenting a child are clearly not grounds for termination. There are no circumstances as Ms. Josephs has described that would result in a termination of parental rights under this section.
      Statements of Representatives Josephs and Hagarty, 1991 Pa. Legislative Journal — House at 1666. While these statements are not dispositive of legislative intent, we may properly consider them as an aid in ascertaining it. Commonwealth v. Berryman, 437 Pa.Super. 258,-, 649 A.2d 961, 971-72 (citing Commonwealth v. Wilson, 529 Pa. 268, 275 n. 4, 602 A.2d 1290, 1294 n. 4 (1992), cert. denied in Aultman v. Pennsylvania,-U.S.-, 112 S.Ct. 2952, 119 L.Ed.2d 574 (1992)). After all, ascertaining and effectuating legislative intent is the objective of all statutory construction. 1 Pa.C.S.A. § 1921(a); Hodges v. Rodriguez, 435 Pa.Super. 360, 368, 645 A.2d 1340, 1344-45 (1994) (citations omitted).

      . Appellants’ reliance on Mitch v. Children & Youth S.S. Agency, supra, is misplaced. In that case, the appellants, the Deans, sought legal custody of the child they were attempting to adopt from the agency that had taken the child from their home. Although this Court emphasized the expectation of a permanent relationship between the appellants as pre-adoptive parents and the child, Joseph Mitch, we specifically held that pre-adoptive parents "suffer a direct and substantial injury when an agency removes a child from them....” Mitch v. Children & Youth S.S. Agency, supra at 50, 556 A.2d at 423. Thus, it was the fact that the agency, not the natural parents, gained physical and legal custody of the child that allowed the appellants to have standing to contest the child's adoption. Joseph Mitch's natural parents were in no way involved in determining his custody. Moreover, the standing was specifically found to exist under the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq., and not the Adoption Act. Id. at 52, 566 A.2d at 424. Appellants do not and cannot assert their standing based upon the Juvenile Act or any other act beside the Adoption Act.

      . We note that because appellants lack standing, no need exists to determine whether a hearing is necessary to determine the best interests of M.J.C.

      . We note that T.J.B., in his brief, requests counsel fees for this appeal. But, because we do not believe that appellants’ appeal was frivolous or their conduct was dilatory, obdurate, or vexatious, we decline to award counsel fees to T.J.B. See Pa.R.App.P. 2744.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    652 A.2d 948
    FOREST CITY GRANT LIBERTY ASSOCIATES and JLM Grant Liberty Associates, T/A Grant-Liberty Development Group Associates, v. GENRO II, INC., T/A General Roofing Company and Carlisle Tire & Rubber Company, a Corporation, and Carlisle Corporation, T/A Carlisle Syntec Systems and Insurance Company of North America, v. MELLON-STUART COMPANY and Jos. L. Muscarelle, Inc., Individually and D/B/A Mellon-Stuart Company and Jos. L. Muscarelle, Inc., a Joint Venture, Burt Hill Kosar Rittelman Associates and UDA Architects, Individually D/B/A Joint Venture Architects, Baron/Wheeler, Inc., and RMAX, Inc. v. ALLIANCE INSURANCE GROUP, Alliance General Insurance Company and Alliance Syndicate, Inc., Appellants. FOREST CITY GRANT LIBERTY ASSOCIATES and JLM Grant Liberty Associates, T/A Grant-Liberty Development Group Associates, v. GENRO II, INC., T/A General Roofing Company and Carlisle Tire & Rubber Company, A Corporation, and Carlisle Corporation, T/A Carlisle Syntec Systems and Insurance Company of North America v. MELLON-STUART COMPANY and Jos. L. Muscarelle, Inc., Individually and D/B/A Mellon-Stuart Company and Jos. L. Muscarelle, Inc., A Joint Venture, Burt Hill Kosar Rittelman Associates and UDA Architects, Individually D/B/A Joint Venture Architects, Baron/Wheeler, Inc., and RMAX, Inc. v. ALLIANCE INSURANCE GROUP, Alliance General Insurance Company and Alliance Syndicate, Inc. Appeal of RMAX, INC.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1994.
    Filed Jan. 12, 1995.

      Bradley S. Tupi, Pittsburgh, for Alliance Ins. Group, Alliance General Ins. Co. & Alliance Syndicate, Inc.
    Robert J. Cindrich, Pittsburgh, for RMax, Inc.
    Before WIEAND, OLSZEWSKI and KELLY, JJ.
   WIEAND, Judge:

In this dispute over an insurer’s duty to indemnify, the principal issue makes it necessary that we construe a clause in the policy which requires the insured to “cooperate” with the insurer.

When the owners of the Liberty Center discovered defects in the roofing on their several buildings, they commenced an action against Carlisle SynTec Systems, which had designed the several roofs, and General Roofing Company, which had installed the same. Joined as an additional defendant was RMax, Inc., which had supplied foam insulation for the project. It was alleged that the facer sheet on each side of the foam insulation had separated from insulation, a process known as delamination. Alliance Insurance Group was the liability carrier for RMax. At trial, RMax was represented by Terry Cavanaugh, Esquire.

During trial, extended negotiations resulted in a settlement., on February 20, 1991. Based on a report by Robert McNeil, an employee of Carlisle SynTec Systems, it was agreed that at least 27,000 square feet of roofing insulation had delaminated, resulting in damaged roofing. This area, it was agreed, should be repaired for $155,000. Because delamination, once begun, tends to migrate, it was also agreed that if repairs to the roof were found to be necessary in adjacent areas, they would be made at a cost of $7 per square foot. Finally, it was agreed that additional areas, not adjacent to identified areas but which were later discovered to be defective, would only be repaired if RMax agreed that delamination had occurred because of a defect in its product. Before these additional, non-adjacent areas could be repaired, however, the parties were to submit an amendment of the settlement agreement to Alliance. Universal Roofing Company was selected to perform the repairs. Both Alliance and RMax consented to the terms of the settlement.

After the settlement agreement had been approved, McNeil revisited the Liberty Center Complex in May, 1991, and determined that at least 14,085 additional square feet of insulation had delaminated and needed to be repaired. McNeil attributed this increased square footage to the migratory nature of delamination. As a result, McNeil amended his initial report and drawings. A copy of the amended report was submitted to RMax and Alliance.

Prior to the commencement of repairs, Cavanaugh contacted Alliance and suggested that Alliance hire an expert to monitor the work so as to prevent any overreaching on the part of Universal. Alliance rejected this suggestion and said that it would rely upon RMax to inspect the project from time to time. Although RMax agreed to visit the work site on occasion, it did not agree to monitor or supervise the project.

In August, 1991, Universal began work on the hotel roof. It repaired the hotel roof and the roof of the podium in areas which had been identified by McNeil and also in areas adjacent thereto. It also replaced the roof in some areas which had not been damaged by delamination. By the time it completed its work, almost the entire hotel and podium roofs had been replaced, and the cost had exceeded greatly the estimates contained in the McNeil report, which had formed the basis for the agreed settlement.

During the repair process Universal sent periodic invoices to Alliance. Although these invoices did not distinguish between areas identified by the McNeil reports and other areas in which repair work had been done, Alliance paid each invoice without question or objection. In November, 1991, after paying $232,100.93, Alliance became aware that it had paid for roof repairs in areas not contemplated by the McNeil reports.

In December, 1991, McNeil visited the Liberty Center complex for a third time and discovered delamination of an additional 27,964 square feet on the office tower roofs. It was estimated that this additional damage would cost $195,748 to repair. On February 4, 1992, Alliance informed RMax that it would not indemnify it for this work.

RMax agreed with McNeil that the newest delamination had been caused by migration of the original damage and stipulated that it should be repaired pursuant to the settlement agreement. Therefore, after Alliance had refused further indemnification, RMax paid $160,062 to Universal for additional repairs. While performing the repair work, Universal replaced 4,350 square feet of undamaged roof at a cost of $37,750. Because RMax had not assigned a representative to supervise the project, it was unaware of Universal’s continued overreaching.

In a proceeding for declaratory judgment, RMax contended that Alliance was liable for all costs of making roof repairs, as well as counsel fees. Alliance contended, inter alia, that it was excused from liability because of RMax’s failure to cooperate by having its personnel oversee the repair work done by Universal. The trial court held that Alliance was liable for all repairs made pursuant to the settlement agreement and for counsel fees in the amount of $38,908. It was not liable, however, for unnecessary repairs of $37,750 made to the roofs of the office tower, which RMax had already paid and to which it had improperly consented. Both parties appealed.

Generally, where the terms of an insurance contract are ambiguous, they should be construed liberally in favor of the insured and strictly against the insurer. Miller v. Prudential Ins. Co. of Amer., 239 Pa.Super. 467, 472, 362 A.2d 1017, 1020 (1976). Where the policy language is unambiguous, however, words are given their plain and ordinary meaning. Techalloy Co., Inc. v. Reliance Ins. Co., 338 Pa.Super. 1, 7, 487 A.2d 820, 823 (1984).

RMax’s duty to cooperate, as set forth in its policy with Alliance, was as follows:

(4) Insured’s Duties in the Event of Occurrence, Claim or Suit:
(c) The insured shall cooperate with the company and, upon the company’s request, assist in making settlements, in the conduct of suits and in enforcing any right of contribution or indemnity against any person or organization who may be liable to the insured because of injury or damage with respect to which insurance is afforded under this policy; and the insured shall attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses. The insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for first aid to others at the time of the accident.

The purpose of a cooperation clause in an insurance contract is to protect the insurer’s interest and to prevent collusion between the insured and the injured party. 8 Appleman, Insurance Law and Practice § 4741. Although a breach of a duty to cooperate will relieve the insurer from liability under the policy, a failure to cooperate must be substantial and will only serve as a defense where the insurer has suffered prejudice because of the breach. Id. at § 4773. Whether there has been a material breach of an insured’s duty to cooperate is a question for the finder of fact. Cameron v. Berger, 336 Pa. 229, 235, 7 A.2d 293, 296 (1938).

By virtue of a cooperation clause, an insured binds itself to assist the insurer fully in its handling of the claim and agrees to take no action which would vitiate a valid defense. See: United Services Automobile Ass’n v. Morris, 154 Ariz. 113, 117, 741 P.2d 246, 250 (1987). An insured’s duty to cooperate is breached where the insured neglects to disclose information needed by the insurer to prepare a defense, does not aid in securing witnesses, refuses to attend hearings or to appear and testify at trial or otherwise fails to “render all reasonable assistance necessary to the defense of the suit.” 8 Appleman, Insurance Law and Practice § 4774. See also: H.Y. Akers & Sons, Inc. v. St. Louis Fire & Marine Ins. Co., 120 Ga.App. 800, 803-804, 172 S.E.2d 355, 359 (1969).

Despite the broad nature of the duty to cooperate, neither the parties nor our own research has disclosed a case in which a cooperation clause has been construed to include a duty on the part .of the insured to supervise the implementation of an agreement of settlement accepted by the insurer. Such a duty is not within the general purpose of the cooperation clause and is not suggested by the express language thereof.

The trial court also found that RMax had not agreed separately with Alliance to monitor or supervise the repair work being done by Universal. Moreover, even if there had been a discussion regarding the approval of additional work, the evidence was that Alliance’s practice had been to pay Universal’s invoices without inquiry and without requiring prior approval by RMax. Additional areas of delamination, which were adjacent to known areas of damage, were discovered by Universal on a daily basis. The potential for this was known to both Alliance and RMax, as was the potential for overreaching by the contractor. The only way to guarantee that Universal correctly distinguished between damaged and undamaged insulation would have been to assign a qualified expert to monitor the repairs daily. Indeed, Cavanaugh had recommended such a course to Alliance. It was Alliance’s responsibility to pay for the work; and, therefore, it had responsibility for establishing an effective program for monitoring the work. Having failed to do so, it cannot assert the insured’s failure to cooperate as a defense to the obligation assumed pursuant to its settlement agreement.

It is appropriate for a trial court to reduce the recovery-of an injured party by the amount of losses which could have been avoided by the reasonable efforts of the injured party. State Public Sch. Bldg. Authority v. W.M. Anderson Co., 49 Pa.Commw. 420, 423, 410 A.2d 1329, 1331 (1980). Cf.: Dox Planks v. Ohio Farmers Ins. Co., 423 Pa.Super. 311, 318, 621 A.2d 132, 135 (1993), allocatur denied, 536 Pa. 624, 637 A.2d 284 (1993). This duty to mitigate damages prevents the breaching party from being penalized beyond the extent of the damages actually suffered and prevents the injured party from being rewarded for its failure to act. Bafile v. Borough of Muncy, 527 Pa. 25, 31, 588 A.2d 462, 464 (1991). In the fall of 1992, after Alliance had refused to indemnify its insured further, Universal repaired the office tower roof, for which RMax paid the sum of $160,062. Of this total amount, the trial court found, $37,750 was for unnecessary repairs. RMax had paid for these repairs without any attempt to ascertain whether they were within the parameters of the settlement agreement. Therefore, the court refused to require Alliance to pay for these unnecessary repairs. We find no error in the trial court’s handling of this aspect of the case.

Finally, the trial court did not err by applying the combined self-insured retentions from the 1986 and 1987 policies of $75,000. Sufficient competent evidence supports this conclusion. See: Ecksel v. Orleans Constr. Co., 360 Pa.Super. 119, 133, 519 A.2d 1021, 1028 (1987) (trial court’s findings of fact will be sustained where they are supported by competent evidence). However, it does appear that the trial court made a minor mathematical error. The court mistakenly found that RMax had paid $70,033 in attorney’s fees towards its self-insured retention; therefore, the court subtracted $4,967 from RMax’s recovery. However, the stipulation of facts submitted by the parties clearly establishes that RMax paid $70,332.76 toward the self-insured retention and that the court should have subtracted $4,667.24 from RMax’s recovery. This increases the amount of counsel fees recoverable by RMax to $39,208, and we will cause the order of the trial court to be amended accordingly.

As so amended, the order of the trial court is affirmed.

      . The Liberty Center complex consists of three structures: a hotel, an office tower and a podium.


author: CIRILLO, Judge: HOFFMAN, Judge,

text:
    652 A.2d 953
    COMMONWEALTH of Pennsylvania, Appellant, v. Rudolph ALBINO.
    Superior Court of Pennsylvania.
    Argued Jan. 13, 1994.
    Decided Jan. 5, 1995.

      Andrew S. Gibson, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    David Zuckerman, Asst. Public Defender, Philadelphia, for appellee.
    Before CIRILLO, BECK and HOFFMAN, JJ.
   CIRILLO, Judge:

The Commonwealth of Pennsylvania appeals from the order of the Court of Common Pleas of Philadelphia County, granting Rudolph Albino’s motion to suppress 18 vials of crack cocaine. We reverse.

On September 8, 1992, Albino was charged with possession of a controlled substance and possession with intent to deliver a controlled substance. On November 11, 1992, Albino filed an omnibus pre-trial motion to suppress evidence of crack cocaine seized from his person, claiming that the police lacked probable cause to arrest at the time that the search and subsequent seizure occurred. On May 24, 1993, following a suppression hearing, the Honorable Albert John Snite, Jr. granted Albino’s motion to suppress. This appeal followed.

On appeal, the Commonwealth presents the following issue for our review:

Did the police lack probable cause, to arrest, where Officer Meissler observed Albino engage in a surreptitious sale of “small” objects in an area where Officer Meissler had conducted numerous arrests for narcotics offenses?

In reviewing an order granting a motion to suppress evidence, we must determine whether the factual findings of the suppression court are supported by evidence of record. Commonwealth v. Frank, 407 Pa.Super. 500, 502, 595 A.2d 1258, 1259 (1991). In making this determination, we may consider only the evidence of the defendant’s witnesses and so much the Commonwealth’s witnesses as fairly read in the context of the record remains uncontradicted. Commonwealth v. Dennis, 417 Pa.Super. 425, 427, 612 A.2d 1014, 1015 (1992). If the evidence supports the factual findings of the trial court, we are bound by such findings, and we may reverse only if the legal conclusions drawn therefrom are erroneous. Id.

The suppression court made the following factual findings: On September 8, 1992, Officer Gregory Meissler conducted routine surveillance of the corner of Mutter and Cambria Streets in Philadelphia, using a pair of binoculars. At approximately 12:55 p.m., Officer Meissler observed an unidentified Black female approach Albino, who was standing in front of a building on the 2900 block of Mutter Street. As the woman reached Albino’s position, Officer Meissler witnessed Albino reach beneath the waistband of his pants, pull out a purse, remove some “objects” from the purse, and hand those objects to the unknown female in exchange for United States currency. In Officer Meissler’s expert opinion as a trained police officer, the transaction he witnessed involved the sale of controlled substances. Pursuant to this belief, Officer Meissler approached Albino and, after patting him down for weapons, asked him to open his trousers and remove the purse he had hidden there. Upon complying with this request, Officer Meissler examined the contents of the purse and discovered 18 yellow capped vials of crack cocaine and $13.00 in cash. Officer Meissler immediately placed Albino under formal arrest.

In the case at hand, the Commonwealth argues that the trial court erred in suppressing the 18 vials of crack cocaine seized from Albino’s person by Officer Meissler. Specifically, the Commonwealth asserts that Officer Meissler conducted a valid search incident to a lawful arrest, based upon probable cause that Albino committed an illicit sale of narcotics. We agree.

In general, a search conducted without a warrant is presumed unreasonable unless it is undertaken under a recognized exception to the warrant requirement. Commonwealth v. Agnew, 411 Pa.Super. 63, 74, 600 A.2d 1265, 1271 (1991). A search incident to a lawful arrest is one such exception. Id. To be lawful, a warrantless arrest must be supported by probable cause. The standard for determining whether probable cause exists is the “totality of the circumstances” test announced in Illinois v. Gates, 462 U.S. 213,103 S.Ct. 2317, 76 L.Ed.2d 527 (1982). Commonwealth v. Guzman, 417 Pa.Super. 364, 367, 612 A.2d 524, 525 (1992). Probable cause to arrest exists when the facts and circumstances contemporaneous with the arrest would warrant a reasonable person to believe that a crime had been committed and that the suspect had committed it. Id. (citations omitted). Moreover,

[w]hen we examine a particular situation to determine if probable cause exists, we consider all the factors and their total effect, and do not concentrate on each individual element.... We also focus on the circumstances as seen through the eyes of the trained officer, and do not view the situation as an average citizen might.... Finally, we must remember that in dealing with questions of probable cause, we are not dealing with certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act. This is not the same ‘beyond a reasonable doubt’ standard which we apply in determining guilt or innocence at trial. Commonwealth v. Devlin, 221 Pa.Super. 175, 289 A.2d 237 (1972).

Guzman, 417 Pa.Super. at 367-68, 612 A.2d at 525 (emphasis added). See also Agnew, supra; Commonwealth v. Ellis, 354 Pa.Super. 11, 510 A.2d 1253 (1986); Commonwealth v. Simmons, 295 Pa.Super. 72, 440 A.2d 1228 (1982).

Furthermore, when a police officer observes citizens engaged in suspicious transactions on public thoroughfares, the determination of whether probable cause exists is ordinarily a difficult one. Agnew, 411 Pa.Super. at 76, 600 A.2d at 1272. In fact, the Pennsylvania Supreme Court has observed that in such cases “all the circumstances surrounding a transaction between citizens are to be considered in determining whether law enforcement officers have acted arbitrarily or have acted on the basis of probable cause.” Id. (citing Commonwealth v. Lawson, 454 Pa. 23, 27, 309 A.2d 391, 394 (1973)). In making such a determination, the Lawson Court elaborated that:

All of the detailed facts and circumstances must be considered. The time is important; the street location is important; the use of a street for commercial transactions is important; the number of such transactions is important; the place where the items were kept by one of the sellers is important; the movement and manners of the parties are important.
s}« ijs sfc
It is difficult to isolate any one fact or circumstance and assign to it a given weight. If any one of the facts and circumstances, which we have detailed, were missing, the necessary conclusion of probable cause might not be allowable. Every commercial transaction between citizens on a street corner when unidentified property is involved does not give rise to probable cause for an arrest.

Id. (citing Lawson, 454 Pa. at 28-29, 309 A.2d at 394).

Recently, in Commonwealth v. Malson, 434 Pa. Super. 155, 642 A.2d 520 (1994), we had pause to consider whether a police officer had probable cause to arrest an individual, after observing what appeared to be a drug transaction. The facts in Malson were as follows: On September 14, 1991, at approximately 9:15 p.m., Philadelphia Police Officer Michael Copecki conducted surveillance without binoculars in the area of Hieskil and Armat streets. After a few minutes, Officer Copecki saw the defendant David Malson standing outside of a sports bar located on that corner. Several people walked past Malson with no conversation or interaction. A short time later, a black male approached Malson and handed him “something green.” In exchange, Malson removed a small purse from his pants pocket, withdrew an unknown object from the purse, and handed it to the male. The male then exited in a black automobile.

Officer Copecki continued to observe Malson for a brief time, but witnessed no additional suspicious conduct. Officer Copecki was then joined by his partner, Officer Peters, and the two officers placed Malson under arrest. Following the arrest, the police seized a brown change purse containing $41.00 and 18 yellow-tinted vials containing crack cocaine. Officer Copecki, a seven-year veteran on the police force, who had made ten prior narcotics arrests, believed that Malson had sold narcotics to the unknown male. Prior to trial, Malson filed a motion to suppress the seized vials of crack cocaine, claiming that the police lacked the probable cause necessary to arrest him. The suppression court agreed and granted Malson’s motion.

On appeal, we affirmed the suppression court’s order, agreeing that Officer Copecki lacked the necessary quantum of probable cause required to arrest Malson. In reaching this decision, we stated that in order for probable cause to exist, “there must be other facts which, together with a suspicious exchange of unidentified objects, supports a reasonable belief that the exchange is drug related.” Malson, 434 Pa.Super. at 164, 642 A.2d at 524.

In that case, however, we could find no such “other factors.” Officer Copecki witnessed the transaction without the benefit of binoculars and could not positively identify either the currency or the crack cocaine. In addition, the incident occurred at night, Malson withdrew the brown purse from his right pants pocket and not from some more furtive location, and Malson did not attempt to flee when approached by the police. Thus, we concluded that as Malson’s arrest was not supported with probable cause, the subsequent search was improper, and the crack cocaine seized was correctly suppressed by the trial court.

In the instant case, however, we think that there were “other facts” which, combined with the exchange of objects, gave rise to a reasonable belief that the exchange was drug related. Unlike Malson, in the present case, Officer Meissler observed the entire scene through binoculars and was able to positively identify currency changing hands during the transaction. The incident occurred during the day, on the 2900 block of North Mutter Street, where Officer Meissler testified he had made approximately forty previous narcotics arrests. Further, in his five years of experience in that particular district, Officer Meissler had observed more than 100 sales of controlled substances. We believe, therefore, that viewing this scene through the eyes of an experienced police officer, there existed sufficient probable cause to arrest Albino, despite Officer Meissler’s inability to positively identify the object exchanged as a controlled substance. Accordingly, we conclude that the trial court erred in granting Albino’s motion to suppress and in precluding the seized crack cocaine into evidence.

Order reversed.

HOFFMAN, J., files a dissenting opinion.

HOFFMAN, Judge,

dissenting:

“Every commercial transaction between citizens on a street corner does not give rise to probable cause for an arrest.” Commonwealth v. Malson, 434 Pa.Super. 155, 161, 642 A.2d 520, 529 (1994) (quoting Commonwealth v. Lawson, 454 Pa. 23, 28-29, 309 A.2d 391, 394 (1973)). In the instant case, Officer Meissler observed appellant engage in one transaction with another individual. While he observed the exchange of U.S. currency, he admits that he was unable to identify the object exchanged. Officer Meissler had no information that appellant was a known drug dealer, nor was he responding to any citizen complaints of drug activity at that location on September 8, 1992. Moreover, when approached by Officer Meissler, appellant made no attempt to flee and behaved in a compliant manner. Viewing all of the facts and circumstances in their totality, I find that there was not a reasonable basis to support a finding of probable cause to arrest. See Commonwealth v. Greber, 478 Pa. 63, 385 A.2d 1313 (1978) (probable cause to arrest lacking where the officer had no prior information about drug activity, only observed one isolated transaction and could not identify either object exchanged); Commonwealth v. Malson, 434 Pa.Super. at 164, 642 A.2d at 525 (“no citizen may be arrested merely for passing an unidentified item to another citizen on a public street”); Commonwealth v. Agnew, 411 Pa.Super. 63, 74, 600 A.2d 1265 (1991) (no probable cause to arrest where officers unable to identify object exchanged).

Accordingly, for the reasons stated above, I must respectfully dissent.

      . During the suppression hearing there was some controversy as to Officer Meissler's characterization of these objects. On direct examination he described the objects removed from the purse as being “white,” but on cross-examination he testified that he could not tell exactly what these objects were from his vantage point.

      . Officer Meissler is an experienced police officer who, in his five years on the police force, has made more than 40 arrests for crimes involving controlled substances and has, on more than 100 occasions, observed the sale of controlled substances on the very corner on which he observed Albino's transaction.

      . On direct examination at the suppression hearing, Officer Copecki testified that the green object appeared to be U.S. currency. On cross-examination, however, Officer Copecki admitted that the green object could have been something besides money.

      . On cross examination Officer Meissler testified that on the day in question he could not identify the objects exchanged from his vantage point. N.T., May 24, 1993 at 14-17.


author: FORD ELLIOTT, Judge:

text:
    652 A.2d 1330
    In re DEED OF TRUST OF Grant McCARGO Dated December 4, 1929 as Amended, Deceased. John H. Follansbee, III, Laura Follansbee McCall, Melissa Follansbee, Wendy L. Follansbee and Megan Follansbee Smith, Appellants. In re DEED OF TRUST OF Grant McCARGO DATED DECEMBER 4, 1929 AS AMENDED, DECEASED. Elizabeth Bailey Seybolt, Margaret McCargo Seybolt, Meriwether L. Hardie, Charlotte L. Hardie, Page D. McCargo, Richard C. Moses, III, Tarrant G. Moses, Ronson Samuel McCargo Moses, Darian Lee Moses, Remington Morgan Moses, Remington Elizabeth Moses, Christopher Michael Bell, Alphonzo Robert Bell, William Baird Standish, Carolyn Standish Kaemmer, Hannah Margretta Kaemmer, Peter McCargo Standish, III, Christopher R. Standish, Jr., Jessica Richards Standish, Eleanor McCargo Standish, Peyton R. Smith, Jr., Margot F. Smith, Grant B. Smith and Gretchen E. McCall, Appellants. In re DEED OF TRUST OF Grant McCARGO Dated December 4, 1929 as Amended, Deceased. Margaret Meyer Seybolt and Edward B. Meyer, III, Appellants.
    Superior Court of Pennsylvania.
    Argued June 13, 1994.
    Filed Nov. 14, 1994.
    Reargument Denied Jan. 27, 1995.

      Kenneth E. Lewis, Pittsburgh, for Follansbee.
    Andrew W. Forsyth, Jr., Pittsburgh, for Guardian Ad Litem, participating party.
    Guy L. Warman, Pittsburgh, for Grant McCargo, III, Diana McCargo Hardie, Heather Mary McCargo and Thomas Wright McCargo, participating parties.
    Thomas F. Nelson, Pittsburgh, for Peter Standish, William McCargo, David McCargo, Grant McCargo and Marian McCargo Bell, participating parties.
    John J. Lombard, Jr., Philadelphia, for Margaret Seybolt and Edward B. Meyer, III.

      Before KELLY, FORD ELLIOTT and BROSKY, JJ.
   FORD ELLIOTT, Judge:

We review three separate appeals arising from two separate orders of court. The appeals at No. 1560 Pittsburgh 1993 and No. 1609 Pittsburgh 1993 are taken from an order entered September 17, 1993. Although none of the appeals has been consolidated with any other, in the interests of judicial economy, we shall resolve them all together.

These appeals come before us following a declaratory judgment action filed September 15, 1992, in the Orphans’ Court Division of the Court of Common Pleas of Allegheny County. Petitioners therein sought to obtain from the court an interpretation of a deed of trust created by their common ancestor, Grant McCargo, on December 4, 1929. This petition was joined in by David McCargo, the sole surviving child of Grant McCargo, by all but one of the living grandchildren of Grant McCargo, and by all but one branch of the great-grandchildren of Grant McCargo. That branch, consisting of five great-grandchildren born to the now deceased grandchild Margo McCargo Follansbee, took a contrary position to the petitioners. The Follansbee great-grandchildren are our appellants at No. 1560 Pittsburgh 1993.

The dispute below was originally resolved by the Honorable Robert A. Kelly by order and opinion rendered July 21, 1993. Prior to that adjudication the court had appointed a Guardian ad Litem to represent the interests of the minor descendants and a Trustee ad Litem to represent the interests of the unborn and unascertained descendants. The Trustee ad Litem adopted a position in agreement with the petitioners. The Guardian ad Litem agreed with the view of the Follansbee great-grandchildren. The Guardian ad Litem is the representative appellant at No. 1609 Pittsburgh 1993.

Following the original adjudication, exceptions were filed and on September 17, 1993, an en banc panel of the Orphans’ Court Division dismissed all exceptions and ordered that the original July 21,1993 order be entered as a final order. From this order the Follansbee great-grandchildren and the Guardian ad Litem filed their respective appeals.

Subsequent to the order of September 17, 1993, and the taking of appeals therefrom, the court below issued another opinion and order on December 8, 1993, in an apparent effort to clarify the earlier rulings. From this order, the appeal docketed at No. 130 Pittsburgh 1994 was filed. This appeal was brought by another group of great-grandchildren, Edward B. Meyer, III, and Margaret Meyer Seybolt.

In resolving these various appeals, we shall first attend to the matters appealed at No. 1560 Pittsburgh 1993 and No. 1609 Pittsburgh 1993. The issues raised therein all pertain to the same matter' and may be dealt with jointly. We shall thereafter decide the matter raised at No. 130 Pittsburgh 1994. We turn now to the heart of the dispute before us.

Although the various parties have couched the central point of contention in various ways, there is really only one matter of concern instantly; simply, the parties to this appeal ask us to determine what group of persons is included in the term “issue” as it is used in paragraph First (e) of the settlor’s Trust Agreement. Our resolution of this matter will dramatically affect the size of the shares of each of the beneficiaries of the McCargo Trust.

Appellants, the Follansbee great-grandchildren and the Guardian ad Litem, argue that “issue” is employed in its technical sense, including all persons, of multiple generations, who have descended from a common ancestor. In this sense, if a settlor spoke of “the issue of my children” he would implicate all descendants of his children including grandchildren, great-grandchildren, great-great-grandchildren, et cetera.

Appellees, on the other hand, contend that “issue,” as utilized in paragraph First (e), was used by the Settlor in a more limited sense; appellees maintain that “issue,” as used by the settlor, was intended to include only the next generation. In this sense, if a settlor spoke of “the issue of my children,” he would describe only his grandchildren and would not include following generations. The trial court found appellees’ position to be the correct interpretation.

Our resolution of this question must begin with an examination of the language of the Trust Agreement paragraph in question. Because it is helpful to our cause, we reproduce paragraph First (d) in addition to paragraph First (e), the paragraph in question:

(d) [1] On the death of any of my said children leaving lawful issue surviving, such lawful issue shall take, in equal shares if more than one, the share of the income which his, her or their mother or father was receiving at the time of death, until the termination of the trust as hereinafter provided. [2] On the death of any of my said children without lawful issue surviving, the income from this trust estate shall thereafter be paid to my wife and children in equal shares. [3] However, the lawful issue of any deceased child shall take the share the parent would have taken if living.
(e) [1] On the death of the last survivor of my wife and children, the trust shall thereafter continue for a period of twenty-one (21) years for the benefit of the lawful issue of all of my said children, and the income therefrom shall be paid to them in convenient installments, at least quarterly, per capita and not per stirpes. [2] At the expiration of such twenty-one (21) year period the trust shall cease and determine and the corpus and accumulated income be distributed, in equal shares, among the lawful issue of my said children who were receiving income at the time of the termination of the trust. [3] If any of the lawful issue of my said children shall die during the time he or she is receiving income from this trust and be survived by lawful issue, then such latter lawful issue shall take, in equal shares if more than one, the share of the income which his, her or their father or mother was receiving at the time of death, until the termination of the trust as above provided, and on the termination of the trust such latter lawful issue shall take that proportionate part of the corpus of the trust estate equivalent to the proportionate part of the income from the trust which they were receiving at the termination of the trust. [4] If any of the lawful issue of my said children shall die during the time he or she is receiving income from this trust without leaving children surviving, the share of the income which such lawful issue was receiving shall thereafter be distributed equally among all my grandchildren; but if any great-grandchild die during the time he or she is receiving income from the trust, his or her share of the income shall thereafter be paid to his or her brothers and sisters in equal shares, and on failure of such brothers and/or sisters shall be paid to all of my grandchildren in equal shares and the lawful issue of any deceased grandchild per stirpes and not per capita.

Trust Agreement, paragraphs First (d) and First (e) (sentence numbers added).

Our interpretation of the term “issue” is of paramount importance. The last child of Grant McCargo is now deceased, and the operation of paragraph First (e) is imminent. With trust assets currently valued in excess of $50 million and with an annual income of $2 million, the share of even descendants far removed is substantial.

Paragraph First (e) calls for equally divided payments to the beneficiary class for twenty-one years following the death of the last child of the settlor, followed by distribution of the corpus to the beneficiaries according to their current income share. According to appellants’ interpretation, the beneficiary-class of the trust should include, and the income/corpus should be divided equally among, the settlor’s six living grandchildren and those seven great-grandchildren who have survived their deceased grandchildren-parents. Under this scheme appellant Follansbees’ shares would be one-thirteenth each.

Appellees argue, to the contrary, that the beneficiary class includes only the eight grandchildren who survive, or who died but left offspring. Appellees maintain that great-grandchildren only receive a per stirpes share of their deceased grandchild-parent’s original one-eighth share. Under this scheme, the Follansbee appellants would each receive only one-fifth of their mother’s one-eighth share, or one-fortieth. This is substantially diminished from a one-thirteenth share. Thus, having framed the argument and the stakes as best we can, we move on to our analysis.

“It is still hornbook law that the polestar in every trust (and in every will) is the settlor’s (or testator’s) intent and that intent must prevail.” In Re Trust Estate of Pew, 411 Pa. 96, 106, 191 A.2d 399, 405 (1963), overruled in part, on other grounds, Estate of Tyler, 474 Pa. 148, 377 A.2d 157 (1977). Borrowing from our jurisprudence on wills, we may further elaborate:

‘ “It is now hornbook law (1) that the testator’s intent is the polestar and must prevail; and (2) that his intent must be gathered from a consideration of (a) all the language con-i • i • 11 /» p i • *n i i p distribution and (c) the circumstances surrounding him at the time he made his will and (d) the existing facts; and (3) that technical rules or canons of construction should be resorted to only if the language of the will is ambiguous or conflicting, of the testator’s intent is for any reason uncertain: Dinkey Estate, 403 Pa. 179, 168 A.2d 337; Pruner Estate, 400 Pa. 629, 162 A.2d 626; Wanamaker Estate, 399 Pa. 274, 159 A.2d 201; Hope Estate, 398 Pa. 470, 159 A.2d 197.” ’

Estate of Felice, 487 Pa. 342, 351-52, 409 A.2d 382, 386-88 (1979), quoting In re Estate of Lewis, 407 Pa. 518, 520, 180 A.2d 919, 920 (1962).

Upon reading and re-reading both the contested paragraph First (e) of the Trust Agreement, as well as the Trust Agreement in whole, we believe that the language of the document is utterly ambiguous and lends itself to the interpretations espoused by both appellants and appellees. Both interpretations, however, lead to semantical and logical conundrums.

For example, if we interpret “issue” as appellants wish, in its broad or technical sense meaning all succeeding generations, then paragraph First (e), first sentence would appear to grant equal income shares to the fifty-five issue of all of Grant McCargo’s children then living at the time of the death of the last child. We disagree with appellants’ position that this class is restricted to the six surviving grandchildren and seven great-grandchildren whose parents have already died. This seems to be a strained effort to exclude other great-grandchildren and great-great-grandchildren from sharing in the initial income distribution. Nothing in paragraph First (e) limits a broad reading of “issue” to only those descendants receiving income at the time of David McCargo’s death.

Also by this sentence, it appears that the class of beneficiaries would remain open for twenty-one years, allowing for the diminishment of relative income shares as more issue are born. This scheme seems inherently at odds with the remaining provisions of paragraph First (e), which seem to envision a per stirpes distribution to those issue beyond the degree of grandchildren. We also note the apparent interchangeable usage of issue and children by the scrivener, as well as the employment of concepts such as issue survived by lawful issue. None of this supports the idea that the scrivener employed “issue” in its technical sense.

On the other hand, if we accept appellees’ position that “issue” is being used in the very narrow sense of only the immediately following generation, we are faced with another predicament. If the meaning of issue is restricted to the next generation in paragraph First (e), then it must also be so restricted in paragraph First (d), because of a rule of construction that teaches, “words which appear repeatedly in a will are used consistently throughout.” In Re Estate of Hamilton, 454 Pa. 495, 504, 312 A.2d 373, 377 (1973). See also Blackburne’s Estate, 290 Pa. 55, 138 A. 538 (1927). Thus, when child Margaret McCargo Meyer Crane died in 1990, she died without issue, because the only member of the immediately following generation, her son Edward Bailey Meyer II, predeceased her in 1988. Therefore, by operation of paragraph First (d), sentence two, the income share of child Margaret McCargo Meyer Crane should have been given to the sole survivor among her mother and siblings, brother David McCargo. We note that this same scenario occurs with respect to the Follansbee appellants, whose McCargo mother predeceased her father, David McCargo.

Faced with such an intrinsic dichotomy, we conclude that there is simply no way to discern the meaning of “issue,” as it is used in the Trust Agreement, relying solely upon the language of the document itself.

Appellants attempt to maintain that, “[i]t is clear from a reading of the document in its entirety, that the Settlor’s intent was that wherever a distribution to “issue” is called for, descendants will not take concurrently with, a living McCargo parent.” Follansbee appellants’ brief at 27. We do not agree. Our reading of the Trust Agreement leads to no such conclusion. In fact, we read appellants’ suggested analysis, wherein “issue” does not mean issue at all, but includes grandchildren and only seven great-grandchildren, as essentially an “admission” of the ambiguity of the Trust Agreement.

As the trial court did before us, we must look to extrinsic evidence in order to determine the intent of the settlor. Because we are confronted by a manifestly ambiguous document, we may consider such extrinsic evidence. In Re Estate of Pyle, 391 Pa.Super. 244, 570 A.2d 1074 (1990), allocatur denied, Petition of Bannan, 527 Pa. 584, 588 A.2d 507 (1991), Matter of Estate of Pyle, 527 Pa. 588, 588 A.2d 510 (1991). We believe it is quite revealing to examine the settlor’s Will in our attempt to discern his intention as to the meaning of “issue” as used in the Trust Agreement. We observe again that the settlor’s Will was prepared by the same scrivener as prepared the Trust Agreement and that the preparation of both documents was more or less contemporaneous.

The Will of Grant McCargo created a testamentary trust for the benefit of his wife and children quite similar in structure to the inter vivos trust currently under our review. Our attention is drawn to paragraph Fourth (f), which operates in a manner similar to paragraph First (e) of the Trust Agreement:

(f) The distributions of income to my wife, children and grandchildren hereinabove provided for shall continue until the death of the last survivor of my wife, MARY GRAHAM McCARGO, and my children, MARGARET McCARGO MEYER, ELEANOR McCARGO, GRAHAM McCARGO and DAVID McCARGO. On the happening of such event the amounts of principal carried in the separate trust funds above provided for shall be combined into one principal account, and thereafter the same shall be invested and reinvested and the net income therefrom (after taking into consideration payments of income which it may be necessary to make to the surviving widow of either or both of my sons GRAHAM McCARGO and DAVID McCARGO as provided in clauses (d) and (e) above) shall be paid, in convenient instalments at least quarterly, to the surviving lawful issue of my children in equal shares and the children of any deceased lawful issue, such latter children taking, however, in equal shares if more than one, only the share of the income which his, her or their parent would have taken if living. Payments of income shall thus continue until the youngest surviving issue of my children, that is, my youngest surviving grandchild, shall attain the age of twenty-one (21) years, when the trust shall cease and determine, and the principal and accumulated income thereof shall be paid, freed and discharged of the trust, to the surviving lawful issue of my children and the children of any deceased lawful issue in the same proportions in which they were receiving income at the termination of the trust.

Will at 5.

The distributive scheme evinced by the above paragraph describes a distribution very similar to that of the trust created by the Trust Agreement, but in language that is not nearly so ambiguous. The Will demonstrates the clear kitent of the settlor/testator. The Will set up five “mini-trusts” for the benefit of his wife and four children. As each of the children died, the grandchildren, or their children if the grandchildren predeceased, were to succeed to per stirpes shares of the mini-trusts. Upon the death of the last survivor of the mother and children, however, a new distributive scheme was to fall into place.

Upon that event, the mini-trusts were to merge into a greater whole. Then the grandchildren class were directed to move up into per capita income shares rather than their prior per stirpes shares under the mini-trust provisions. In this testamentary trust, the settlor/testator made clear that great-grandchildren and great-great-grandchildren could also succeed to income shares, but only on a per stirpes basis. What Grant McCargo, settlor, failed to make clear, Grant McCargo, testator, made abundantly obvious.

Furthermore, as both the trial court and appellees have pointed out, the Will of Grant McCargo provides, in the third sentence of paragraph Fourth (f), a rather decisive indication of what was meant by the settlor/testator when he employed the term “issue of my children:”

Payments of income shall thus continue until the youngest surviving issue of my children, that is, my youngest surviving grandchild, shall attain the age of twenty-one (21) years, when the trust shall cease and determine, ...

Will at 5 (R.R. 137a) (emphasis added). We can see no more obvious indication than this that when the settlor/testator referred to “issue of any children,” he only included the next generation, his grandchildren, in its meaning. This same interchangeability of language also appears in paragraph First (e) of the Trust Agreement.

Appellant Guardian ad Litem argues that the purpose of this limitation was to avoid violating the Rule Against Perpetuities. While this may be perfectly true, that fact does not detract from this obvious usage of “issue of my children” by the scrivener to refer only to the next generation, the grandchildren of the settlor.

We now turn to consider sundry arguments raised by the various appellants, either alone or in concert. First, appellant Guardian ad Litem argues that when used in a will or trust technical words must be given their technical meaning especially when used by a scrivener learned in probate law. Appellant Guardian ad Litem string cites several cases in support including Grier Estate, 403 Pa. 517, 525, 170 A.2d 545, 549 (1961). While this is a true statement of law, it is also true that where it is apparent that such technical terms have been misused or given a meaning different from their fixed technical sense, effect must be given to the intent of the testator (or settlor) gathered from the writing as a whole. In Re Suttner’s Estate, 348 Pa. 159, 34 A.2d 483 (1943). Grant McCargo repeatedly used the term “issue” in a sense that clearly connoted a meaning more restrictive that the technical sense of the term; that is, he apparently intended “issue” to mean only the next succeeding generation rather than all succeeding generations ad infinitum.

Further, we note that appellant Guardian ad Litem has devoted a large portion of his brief to a discussion of In Re Carnegie’s Estate, 397 Pa. 308, 155 A.2d 349 (1959), and In Re Clark’s Estate, 359 Pa. 411, 59 A.2d 109 (1948). If these two cases stand for any principle, it is that technical words will not be given their technical meaning where settlor or testator has intended a different meaning. In both cases, the narrow technical term “children,” which commonly implies a single generation, was interpreted by the court in the much broader sense of “issue,” multiple succeeding generations, because the court determined that that was, in fact, the testator’s intent. We do likewise here where we decide that the settlor intended “issue” in the narrower sense of “children” (of his children).

Appellants also argue that a trust instrument must be construed so as to give meaning and effect to every word and that a construction which renders any of the words futile or nugatory must be rejected, citing, inter alia, Estate of Rush, 426 Pa.Super. 119, 626 A.2d 602 (1993). We agree that this accurately states the law.

Appellants go on to argue that their interpretation of “issue” as it is used in paragraph First (e) gives meaning to the phrase “per capita and not per stirpes” as it is employed in the first sentence of paragraph First (e) because it reverses the presumption in the law that a gift to a class comprised of individuals from different generations is a gift per stirpes. See In Re Mayhew’s Estate, 307 Pa. 84, 160 A. 724 (1932). Appellant Guardian ad Litem contends that interpreting “issue” in sentence [1] of paragraph First (e) to mean only grandchildren renders “per capita and not per stirpes futile because, as appellant correctly indicates, a gift to grandchildren alone as a class presumes a per capita gift. See In Re Rosengarten’s Estate, 349 Pa. 32, 36 A.2d 310 (1944). Thus, appellant Guardian ad Litem argues, the phrase “per capita and not per stirpes” is superfluous.

Ordinarily, appellants’ argument would have merit. However, appellants have ignored the fact that under paragraph First (d), the Trust Agreement indicated that the grandchildren would receive a per stirpes share prior to the death of the settlor’s last child. Therefore, assuming that “issue” in sentence [1] of paragraph First (e) meant grandchildren only, “per capita and not per stirpes” would still have meaning because it altered the distributive scheme of paragraph First (d), giving grandchildren a per capita share rather than a per stirpes one upon the death of the settlor’s last child.

Our analysis thus far has led us to the conclusion that the order entered September 17, 1993, should be affirmed. This resolves the matters appealed at No. 1560 Pittsburgh 1993 and No. 1609 Pittsburgh 1993. The final matter to which we must attend is the order entered December 8,1993, and appealed at No. 130 Pittsburgh 1994. We believe that this order was improperly entered and must be vacated.

The order of December 8, 1993, was improper on three accounts. It was improper because it was entered more than thirty days beyond the original order. See 42 Pa.C.S.A. § 5505, First Pennsylvania Bank v. National Union Fire Insurance Company, 397 Pa.Super. 612, 619 n. 2, 580 A.2d 799, 803 n. 2 (1990), and Simpson v. Allstate Insurance Company, 350 Pa.Super. 239, 504 A.2d 335 (1986). The order was also improper because it was entered after two appeals had been taken from the original order. See Pa.R.A.P. 1701(a), 42 Pa.C.S.A. Both of these reasons vitiate the jurisdiction of the court below to act. Further, the order was improper because it purported to resolve a matter by declaratory judgment that was not based upon an event certain to occur. (There was no certainty that a great-grandchild would die during the twenty-one-year income period described in paragraph First (e).) “A declaratory judgment must not be employed to determine rights in anticipation of events which may never occur or for consideration of moot cases or as a medium for the rendition of an advisory opinion which may prove to be purely academic.” Gulnac v. South Butler School District, 526 Pa. 483, 488, 587 A.2d 699, 701 (1991); see also In Re Johnson’s Estate, 403 Pa. 476, 171 A.2d 518 (1961). The court should not have attempted to resolve the proper distribution of a great-grandchild’s lapsed share.

Accordingly, the order of September 17, 1993, is hereby affirmed. The order of December 8, 1993, is hereby vacated.

      . We note that two of the three appeals were listed at the same argument number, although they were not consolidated.

      . The trust was made contemporarily with a will dated December 3, 1929. The trust agreement was amended December 25, 1935.

      . David McCargo has since died on March 13, 1993.

      . Grandchild William Standish did not join. We note that the Honorable William Standish currently sits as a judge of the United States District Court for the Western District of Pennsylvania and formerly sat as a judge of the Court of Common Pleas of Allegheny County.

      . On February 15, 1994, the court issued yet another clarifying opinion.

      . Like the Follansbee great-grandchildren, these two great-grandchildren trace their lineage through a deceased grandchild-parent, although they apparently did not join the Follansbee position in the declaratory judgment action.

      . The Follansbees, Margaret Meyer Seybolt, and Edward Bailey Meyer, III.

      . The Restatement (Second) of Property describes the conclusion that is to be drawn from such usage:
      The word 'issue' may be used to denote 'children' of the designated person. The inexpert use of technical language may be evident by the use of the words 'issue' and 'children' interchangeably, justifying the conclusion that only the first lower generation of the designated person is intended to be beneficiaries of the disposition.
      Restatement (Second) of Property, § 25.9, comment d. See also Duckett’s Estate, 214 Pa. 362, 63 A. 830 (1906).

      . Instead, the Orphans’ Court of Allegheny County awarded the income to the surviving grandchildren of Margaret McCargo Meyer Crane after her death in 1990. While we are without the trial court’s opinion from that time, appellants imply that this result could only have been reached by interpreting "issue” as it is employed in paragraph First (d), in its technical, broad sense, to include all descendants of multiple succeeding generations. Appellees argue that an equally likely explanation is that the trial court interpreted the words “deceased child” in paragraph First (d), sentence three to mean any child and not just a child of the settlor. However, there is also nothing to preclude an interpretation that the trial court looked to the overall scheme of distribution as set out by the settlor/testator and preserved the per stirpes shares of the lineal descendants of the settlor/testator’s children.

      . One document was executed December 3, 1929, while the other was executed one day later, December 4, 1929.

      . This is further borne out by earlier provisions of the settlor/testator’s Will wherein he displays a clear intent to provide for the lineal descendants of his children on a per stirpes basis:
      Upon the death of my daughter MARGARET McCARGO MEYER the income from said trust fund shall be distributed equally among her surviving lawful issue and the children of any deceased lawful issue, the latter children taking, in equal shares if more than one, the share of the income which his, her or their parent would have taken if living. Said payments of income shall continue until the change in distribution of income provided for in clause (f) of this paragraph of my will. In the event that my said daughter leaves no children or other lineal descendants to survive her, then on her death the principal of said trust fund shall be divided equally and added to the trusts herein created for my other children, to be administered and distributed in accordance with the terms thereof.
      Will at 2 (from paragraph Fourth (b), emphasis added). Similar provisions were made for each of the testator’s children and said provisions are markedly similar to the anti-lapse provisions of the Trust Agreement, as described in paragraph First (e), sentences three and four.

      . Appellee Guardian ad Litem has questioned the standing of appellants to appeal the order on the basis that they are not aggrieved parties, citing Green by Green v. SEPTA, 380 Pa.Super. 268, 551 A.2d 578 (1988), and referring to Pa.R.C.P. 227.1, 42 Pa.C.S.A. and Pa.R.A.P. 501, 42 Pa.C.S.A. Even assuming a lack of standing to appeal, this court may sua sponte raise matters of lack of jurisdiction. See Weir v. Weir, 428 Pa.Super. 515, 631 A.2d 650 (1993).

      . Although we neither need to, nor actually do resolve the matter of the proper distribution of such a lapsed share, we,note in passing that the resolution of the trial court embodied in the order of December 8, 1993, does appear to be in error. The clear implication of the latter clause of sentence [4] of paragraph First (e) is that it applies only where the great-grandchild dies without issue. We deem this interpretation to flow from foregoing analysis, and to be consistent with the distributive scheme envisioned by the settlor/testator as expressed in both his Trust Agreement and Will.