author: CERCONE, Judge.

text:
    625 A.2d 678
    COMMONWEALTH of Pennsylvania, Appellant v. Nathaniel BURNSIDE.
    Superior Court of Pennsylvania.
    Argued March 30, 1993.
    Filed May 20, 1993.

      Michael Erlich, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Carol S. Weinman, Philadelphia, for appellee.
    Before TAMILIA, POPOVICH and CERCONE, JJ.
   CERCONE, Judge.

This is an interlocutory appeal as of right from an order suppressing contraband seized from appellee, Nathaniel Burnside, at the time of his arrest. The appeal is properly before this court because the Commonwealth has certified that suppression of the physical evidence substantially handicaps the prosecution of this case. See Pa.R.A.P., Rule 311(d), 42 Pa.C.S. (Commonwealth Appeals as of Right in Criminal Cases). For the reasons set forth below, we reverse.

On January 11, 1992, at approximately 10:15 p.m., a uniformed Philadelphia police officer observed appellee, who was standing in the brightly lit doorway to a store, and holding a handful of “small, blue plastic packets” of the type the experienced officer knew commonly contained cocaine packaged for the retail market. This sighting occurred in an area in which the police officer had conducted numerous arrests for drug offenses. Based on his knowledge and experience, the officer concluded that appellee’s packets probably contained narcotics. The officer and his partner, both in uniform, decided to investigate the situation further. However, as soon as appellee noticed the police presence, he shoved the packets into his jacket and stepped backward into the store. See N.T. 7/21/92 at 5-10, 14-17, 19-25.

Police Officer Norman followed appellee into the store and brought him outside. Officer Albert Jones thereupon conducted a pat down search of appellee which disclosed sixty-nine (69) blue-tinted packets and two (2) clear plastic packets, all containing a “white powdery substance” which later proved to be cocaine. At that time, appellee also possessed one hundred twenty-one dollars ($121) in United States currency. Id. at 11-12, 25-27. Appellee was subsequently charged with knowingly possessing a controlled substance and possession of a controlled substance with intent to deliver. The prosecution properly notified appellee that, under 18 Pa.C.S. § 7508(a)(3)(i), he would be subject to a mandatory minimum term of imprisonment for trafficking in a quantity of cocaine in excess of two grams. See Notice of Drug Mandatory Minimum Sentence filed 3/13/92 (docket entry D-l).

On July 21, 1992, a hearing was conducted before the Honorable Steven R. Geroff on appellee’s motion to suppress physical evidence. Although appellee presented no witnesses, Police Officer Jones testified on behalf of the Commonwealth. The suppression court ultimately concluded that the police officers had no probable cause to arrest appellee, and that there were no surrounding circumstances to justify a Terry stop. See trial court opinion at 3-5.

After the lower court entered the suppression order, the Commonwealth, appellant in this case, perfected an appeal to this court. Appellant has raised the following issues for our review:

I. The lower court erred by concluding that [the] police lacked probable cause to arrest where an officer observed [appellee] displaying blue plastic packets, used for storing and selling cocaine, in an area where the officer had conducted numerous arrests for narcotics offenses, and where, immediately upon sighting the officer, [appellee] concealed the packets and walked away.
II. The lower court erred by concluding that [the] police lacked even reasonable suspicion to stop [appellee] where an officer observed [appellee] displaying blue plastic packets used for storing and selling cocaine in an area where the officer had conducted numerous arrests for narcotics offenses, and immediately upon sighting the officer, [appellee] concealed the packets and walked away.

Before considering these claims, we must first set forth the proper standard which governs review of a suppression order.

Without question, it is the province of the suppression court to make findings of fact and conclusions of law as to whether evidence was obtained in violation of an accused’s constitutional rights. Commonwealth v. Tuck, 322 Pa.Super. 328, 332, 469 A.2d 644, 646 (1983). An appellate court must first ascertain whether the record supports the factual findings of the suppression court, and then determine the reasonableness of the inferences and legal conclusions drawn therefrom. Commonwealth v. Oglialoro, 377 Pa.Super. 317, 318, 547 A.2d 387, 387 (1988) aff'd, 525 Pa. 250, 579 A.2d 1288 (1990). In reviewing an appeal taken by the Commonwealth from a suppression order,

we must consider only the evidence of the defendant’s witnesses and so much of the Commonwealth evidence that, read in the context of the record as a whole, remains uncontradicted. Furthermore, our scope of appellate review is limited primarily to questions of law. We are bound by the suppression court’s findings of fact if those findings are supported by the record. Factual findings wholly lacking in evidence, however, may be rejected.

Commonwealth v. Bennett, 412 Pa.Super. 603, 606, 604 A.2d 276, 277 (1992) (citations omitted).

The Commonwealth initially contends that the police had probable cause to effectuate a warrantless arrest based on the officers’ observation of appellant and his conduct. Under Pennsylvania law,

[pjrobable cause exists if the facts and circumstances within the knowledge of the police officer at the time of the arrest are sufficient to justify a person of reasonable caution in believing the suspect has committed or is committing a crime. In determining whether probable cause existed in a particular situation a court will look not just at one or two individual factors, but will consider the “totality of the circumstances” as they appeared to the arresting officer:
When 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 [persons] act.
Commonwealth v. Simmons, 295 Pa.Super. 72, 83, 440 A.2d 1228, 1234 (1982)____ It is only the probability, and not a prima facie showing of criminal activity that is the standard of probable cause for a warrantless arrest. Probable cause exists when criminality is one reasonable inference; it need not be the only, or even the most likely inference. As Courts of this Commonwealth have repeatedly emphasized, determinations of probable cause must be based on common-sense non-technical analysis.

Commonwealth v. Quiles, 422 Pa.Super. 153, 167, 619 A.2d 291, 298 (1993) (en banc) (quoting Commonwealth v. Simmons quoting Commonwealth v. Kazior, 269 Pa.Super. 518, 522, 410 A.2d 822, 824 (1979) (other citations omitted, emphasis added)).

As this court recently recognized, while a particular type of container may have lawful purposes, the circumstances under which a trained narcotics detective views its use may be tantamount to a view of actual contraband. Commonwealth v. Mallory, 418 Pa.Super. 614, 618, 614 A.2d 1174, 1177 (1992), allocatur denied, — Pa. -, 621 A.2d 578 (1993). The uncontradicted evidence presented by the Commonwealth in the instant case shows that Officer Jones was on patrol in an area with which he was closely acquainted and which he knew to be the scene of prior drug transactions. Officer Jones had been assigned to that locale for over five years and had personally effectuated between thirty and forty arrests for drug trafficking. From a distance of only ten feet, this experienced officer observed appellee holding a handful of the exact type of packets used by local narcotics dealers when selling cocaine. The officer’s suspicions as to the probable contents of the packets displayed by appellee were bolstered when appellee immediately concealed the packets and vacated his street location upon sighting the police patrol car. Officer Jones concluded that appellee’s display of what appeared to be retail packages of a narcotic coupled with appellee’s furtive movements supported the conclusion that appellee was in possession of contraband in violation of Pennsylvania’s drug laws. See N.T. 7/21/92 at 5-25.

As in Mallory, supra, we find that the sum of these facts “painted a picture of probable cause”. allowing the police to arrest the appellee. See id. 418 Pa.Super. at 623, 614 A.2d at 1179. Tó rule otherwise would be to take a “myopic view of the facts and render a decision totally devoid of commonsensical inferences to be drawn by trained police officers with regard to drug activity.” Id. We therefore hold that, under the totality of the circumstances in this case, the actions of the police were proper. Because we find that the appellee’s arrest was based upon probable cause, the subsequent search incident to arrest was lawful. Thus, it was error for the lower court to grant appellee’s motion to suppress.

Order reversed.

      . Officer Jones had been present when the contents of such packets, seized in numerous previous arrests, were tested. All were found to contain cocaine. See N.T. 7/21/92 at 8-9.

      . Having reached this conclusion, there is no need to discuss the Commonwealth’s second claim of error regarding the validity of the alleged Terry stop.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    625 A.2d 682
    Regina HERA and Judith Rosenthall, Executors of the Estate of Evelyn Hill, Appellants, v. Albert R. McCORMICK, Sr., Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1993.
    Filed May 21, 1993.

      John B. Dunn, Stroudsburg, for appellants.
    Robert M. Rosenblum, Stroudsburg, for appellee.
    Before OLSZEWSKI, TAMILIA and FORD ELLIOTT, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the order entered against Regina Hera and Judith Rosenthall, executors of the Estate of Evelyn P. Hill [“appellants”], with regard to approximately $102,-038.41 in assets allegedly belonging to the estate. Appellants argue- that there was insufficient evidence to support the trial court’s finding that appellee Albert McCormick, Sr. [“McCormick”] had received the funds from decedent as a valid inter vivos gift. After a lengthy and careful review of the record, we agree with appellants and remand for a new trial.

McCormick was a friend of Evelyn Hill’s late husband who was permitted to live in one of Hill’s tenant homes. Eventually McCormick moved in with Hill and another individual, Harry Rhodes, and began helping Hill with her business and personal affairs. It is not clear from the record, however, when McCormick first took up residence with Hill and Rhodes. In the final months before her death, Hill suffered from various illnesses including stage 4 breast carcinoma for which she was receiving radiation therapy. Hill required the assistance of Home Health Services of Monroe County to maintain a functioning colostomy and meet her hygiene needs. At times she would pull off her colostomy bag, refuse to eat, and become totally uncooperative. (R.R. 363a.) She also suffered from hallucinations. McCormick assisted Hill in bathing and eating. He also took her shopping and made arrangements to obtain home health aides to assist with her care. Rhodes helped with various household chores.

Early in April of 1991, McCormick and appellant Hera took a power of attorney executed by Hill, to United Penn Bank and redeemed $30,000.00 worth of Hill’s certificates of deposit [“certificates”]. The power-of-attorney was executed on March 21, 1991, and issued jointly between Hera and McCormick. McCormick used $10,000.00 of the proceeds of this transaction to purchase a car for himself, and gave $20,000.00 to Hera. (R.R. 298a-299a.) All of the subsequent transactions were performed by McCormick alone, acting as attorney-in-fact, allegedly under the authority of a power of attorney executed in his name alone. These transactions included, inter alia, the following.

Between May 7 and May 9, of 1991, shortly before Hill’s death, McCormick redeemed four certificates from United Penn Bank: No. 2401355 in the amount of $2,173.06; No. 2401324 in the amount of $14,208.81; No. 2419302 in the amount of $10,279.62; and No. 2442293 in the amount of $16,194.08. He also withdrew $2,572.56 from one of Hill’s savings accounts at the same bank. (R.R. 141a.) From Third National Bank, McCormick cashed two certificates: No. A049697 in the amount of $25,800.00 and No. A049807 in the amount of $6,500.00. (R.R. 146a-156a.) McCormick testified that the certificates were given to him some time in early February, at which time Hill stated, “I gave enough people money. You cash them.” (R.R. 76a.) He later testified that Hill signed the certificates and gave them to him in the later part of April, 1991. Additionally, McCormick closed several of Hill’s bank accounts and wrote checks to pay off debts for Rhodes and himself.

One of the certificates, worth $10,279.62, was signed over to a man named Mr. Davenport to pay off a $5,000.00 debt which McCormick allegedly owed. Davenport returned the balance of the proceeds from the certificate to McCormick. At the initial hearing on November 14, 1991, McCormick testified that he invested approximately $25,000.00 to $27,000.00 in proceeds from Hill’s certificates with a man named Ron Soja to start a mortgage company. McCormick gave his son, Albert McCormick, Jr., a $1,000.00 draft from Hill’s checking account at First National Bank of Palmerton as a belated Christmas gift. McCormick also wrote checks against Hill’s accounts to pay off additional debts and to make personal loans to his friends. McCormick used another certifícate to pay off Rhodes’ bills since Hill allegedly did not want Rhodes to have to work anymore. (R.R. 258a.) Two certificates from Third National Bank of Stroudsburg were rolled over and reissued in McCormick’s name and his son’s name, Albert McCormick, Jr. (R.R. 153a.)

Hill died on May 18, 1991, at the age of 83 leaving a will dated February 27, 1991, which named appellants, Regina Hera, Hill’s long-time personal friend, , and Judith Rosenthall, her niece, as co-executors of her estate. Appellants initiated this action against McCormick on October 29, 1991, alleging that he improperly transferred the $102,038.41 in estate assets to himself by asserting undue influence over Hill. They sought to have the assets returned to the estate. The trial court entered an order granting preliminary relief and ordering McCormick to file an accounting. (R.R. 57a-58a.) Following preliminary hearings, the court granted further relief enjoining McCormick from utilizing funds, proceeds or property, allegedly the property of Hill’s estate. After a full and final hearing on May 11, 1992, however, the court determined that McCormick had received the certificates from Hill as a valid inter vivos gift and the temporary injunction was dissolved. No specific findings were made with regard to the proceeds received from Hill’s checking and savings accounts. Post-trial motions were filed and denied. This timely appeal followed.

At the outset, we note that in reviewing a decree in equity, we are bound to accept the chancellor’s findings of fact. Volunteer Fire Company v. Hilltop Oil Company, 412 Pa.Super. 140, 602 A.2d 1348 (1992). “The chancellor’s findings are entitled to particular weight in a case in which the credibility of the witnesses must be carefully evaluated, because he has the opportunity to hear them and observe their demeanor on the stand.” Id. at 145, 602 A.2d at 1351. Thus, our review is limited to a determination of whether there was an error of law and whether the chancellor’s factual findings are supported by sufficient evidence. Id.

Appellants present eight challenges to the lower court’s findings, five of which are corollaries to one central issue. We have thus divided appellants’ argument into three basic issues: (I) did McCormick receive a valid inter vivos gift of certain certificates of deposit, saving accounts and checking accounts from Hill; (II) did a confidential relationship exist between Hill and McCormick, shifting the burden to McCormick to prove the validity of the gifts; and, (III) should the record have been opened to admit newly discovered evidence of fraud allegedly committed by McCormick on Hill’s estate. We address each issue in turn.

I.

Appellants argue that the evidence did not support the lower court’s finding that Hill made inter vivos gifts of her certificates and the proceeds of her checking and savings accounts to McCormick. The prerequisite elements necessary to prove a valid inter vivos gift are donative intent and delivery. Estate of Korn, 332 Pa.Super. 154, 480 A.2d 1233 (1984). Initially, the burden is on the alleged donee to prove a gift inter vivos by clear, precise and convincing evidence. In re Pappas Estate, 428 Pa. 540, 239 A.2d 298 (1968). Once prima facie evidence of a gift is established, a presumption of validity arises and the burden shifts to the contestant to rebut this presumption by clear, precise and convincing evidence. Id. As discussed below, a presumptively valid gift may be rebutted by establishing that donor and donee had a confidential relationship at the time the alleged gift was made. Banko v. Malanecki, 499 Pa. 92, 451 A.2d 1008 (1982); In re Estate of Clark, 467 Pa. 628, 359 A.2d 777 (1976).

A. Delivery

Our resolution of this matter commences with the question of whether there was adequate delivery. An actual or constructive delivery must not only divest donor of all dominion and control over the property, but also must invest donee with complete control over the subject matter of the gift. In re Estate of Evans, 467 Pa. 336, 356 A.2d 778 (1976). Appellants argue that Hill never divested herself of dominion and control of the certificates, despite her endorsement and transfer to McCormick, because they were non-negotiable and non-transferable. In its second opinion, the lower court conceded (contrary to its former findings) that “[a] power of attorney is necessary because the [certificates] are payable to Evelyn Hill and not to the order of Evelyn Hill. Therefore an endorsement alone is not sufficient to complete delivery.” Trial court opinion at 10; see 13 Pa.C.S.A. § 3104. Nevertheless, the lower court sustained the validity of the gifts since it determined that Hill gave McCormick a power of attorney designating him to act alone as attorney-in-fact [“sole power”] and effect delivery of the gifts.

Appellants aver that the evidence was insufficient to prove that the sole power existed or that the terms permitted McCormick’s transactions. We agree. The only evidence regarding powers of attorney introduced at trial were powers issued jointly to Rosenthall and Hera and to McCormick and Hera. Since there was no designation provided in the joint power indicating whether McCormick or Hera could act separately, both signatures were clearly required to act in accordance with § 5602 of the Pennsylvania Code. Section 5602 provides:

(b) Appointment of attorney in fact and successor attorney. A principal may provide for:
(1) The appointment of more than one attorney-in-fact, who shall act jointly, severally or in any other combination that the principal may designate, but if there is no such designation, such attorneys shall act jointly.

20 Pa.C.S.A. § 5602. Thus, the existence of the sole power was crucial to establishing that McCormick had access to the proceeds and could complete delivery. Evans, supra; Brown v. Brown, 330 Pa.Super. 324, 479 A.2d 573 (1984) (must prove actuál or constructive delivery during lifetime of the donor for valid inter vivos gift).

Neither McCormick nor the three banks where the challenged transactions occurred produced documentation of the sole power at trial. Over appellants’ objection, the court allowed McCormick and Eunice Weber, a branch manager of First National Bank of Palmerton, to testify regarding the sole power and its contents. Weber testified that the bank had misplaced the document and had unsuccessfully attempted to locate it. (R.R. 238a.) Weber also stated that she had personally reviewed the missing power and was certain that it designated McCormick to act alone, and authorized him to withdraw funds from Hill’s bank accounts and redeem the certificates. (R.R. 229a, 238a.) Appellants objected to the admission of this testimony on the basis that there was inadequate proof of the document to satisfy the best evidence rule.

The best evidence rule provides that original writings must be produced to prove the terms of the document where they are material to the issue at hand, unless the original is shown through sufficient evidence to be unavailable through no fault of the proponent. Warren v. Mosites Construction Co., 253 Pa.Super. 395, 385 A.2d 397 (1978); Panko v. Alessi, 362 Pa.Super. 384, 524 A.2d 930 (1987). “It is within the discretion of the trial court, based on proof of destruction, to determine whether production of the original document is feasible.” Commonwealth v. Cessna, 371 Pa.Super. 89, 98, 537 A.2d 834, 838 (1988). Where the document cannot be produced because it is lost or destroyed, production of the original is excused and other evidence becomes admissible. Id. Application of the rule is limited to those situations where the contents of the document are at issue and must be proved to make a case or provide a defense. Hamill-Quinlan, Inc. v. Fisher, 404 Pa.Super. 482, 591 A.2d 309 (1991); Warren, supra.

McCormick’s defense is that he completed delivery of the gifts through the use of the sole power. The contents of the document are therefore clearly at issue. Absent a legitimate reason, McCormick was required to produce the original document purporting to establish the sole power. Since we find that McCormick’s justification for failing to produce the original document is wholly inadequate under the accepted parameters ‘ of the best evidence rule, we must necessarily conclude that the evidence was insufficient to establish the sole power.

To justify the admission of secondary evidence of the contents of an allegedly lost instrument, it must be shown that a bona fide, diligent, and thorough search was made in places where the instrument is likely to be found. Packel & Poulin, Pennsylvania Evidence, § 53:14 (citing In re Greggerson’s Estate, 344 Pa. 498, 25 A.2d 711 (1942); Hacker v. Price, 166 Pa.Super. 404, 71 A.2d 851 (1950)). Here, not even a copy of the power was offered to prove that McCormick was authorized to conduct all of the transactions. The branch manager from the bank who had seen the sole power testified that it is standard procedure to make a photocopy of the power and send the original to the main branch. However, the only photocopy in her files was the joint power. We also note that no effort was made to subpoena a copy of the document from Hill’s former attorney, Krawitz, who drafted the joint powers, Hill’s will, and who allegedly prepared the sole power. Accordingly, we find that the trial court abused its discretion in allowing testimonial evidence of the sole power in the absence of an adequate justification for failure to provide even a copy of the original.

Even assuming the secondary evidence of the sole power was admissible under the best evidence rule, we find the evidence presented was insufficient to prove delivery. As appellants argue, the specific terms or specific powers given by the sole power could have been very broad or limited pursuant to 20 Pa.C.S.A. §§ 5602 and 5603. There was no evidence as to whether the power authorized McCormick to make substantial gifts to himself and others. An attorney-in-fact may be specifically empowered “to make gifts” or only “to make limited gifts.” 20 Pa.C.S.A. § 5602. Moreover, although we do not question the trial court’s credibility determination regarding the fact that Weber read the sole power sometime in early February, we find that the testimony was inadequate to prove the existence of the sole power at the time the transactions were completed. This is especially true in light of Hill’s execution of two joint powers within approximately the same time period, one which revoked all former powers previously executed. There is simply no basis for finding that sole power was in effect at the time the disputed transactions were made. We will not sustain the delivery of a gift justified solely on the existence of a sole power-of-attorney, when the proof of the sole power and its contents is utterly insufficient.

B. Donative Intent

With respect to the evidence proffered to prove Hill’s donative intent, appellants argue that the court disregarded the Dead Man’s Rule, codified at 42 Pa.C.S.A. § 5930, in allowing McCormick to testify about his conversations with Hill regarding the gifts. According to the Dead Man’s Rule or Dead Man’s Statute, surviving parties who have an interest which is adverse to decedent’s estate are disqualified from testifying as to any transaction or event which occurred before decedent’s death. Matthew's Estate, 431 Pa. 616, 246 A.2d 412 (1968). Where, as in this case, there is an issue regarding the validity of an inter vivos gift, the court may not admit statements of decedent absent independent testimony establishing prima facie evidence of donative intent and delivery. Friedeman v. Kinnen, 452 Pa. 365, 305 A.2d 3 (1973). If the alleged donee fails to establish prima facie evidence of a gift or transfer by independent testimony before he takes the stand, he is not competent to testify. Id. The purpose of this rule “is to prevent the injustice which would result from permitting a surviving party to testify favorably to himself and adversely to the interest of the decedent when the representative of the decedent would be hampered in attempting to refute the testimony by reason of the decedent.” In re Estate of Cecchine, 336 Pa.Super. 111, 117, 485 A.2d 454, 458 (1984).

The trial court ruled that the Dead Man’s Rule did not render McCormick incompetent to testify because “prior to [McCormick’s] testimony regarding the statements of the decedent, there was testimony of both donative intent and delivery.” Trial court opinion at 10-11. This “independent” testimony relied on by the trial court included McCormick’s own assertion that Hill signed the certificates and gave them to him, that Hill gave him a sole power, and that he cared for Hill. The trial court’s reasoning in this regard reflects a misapprehension of the Dead Man’s Rule. According to the Rule, “a surviving party is not permitted to testify as to any relevant matters occurring before the decedent’s death, even though they be independent matters or facts which in no way can be regarded as transactions with, or communications by, the decedent.” Cecchine, at 117, 485 A.2d at 458 (emphasis added). Thus, McCormick was not simply precluded from testifying in regard to Hill’s alleged statements of donative intent.

Nevertheless, McCormick’s testimony did not violate the Dead Man’s Rule. There are a number of exceptions to the Rule, both statutory and at common law. One statutory exception applies where the proponent of a decedent’s estate calls the challenged witness to testify against his own interest. Section 5932 of the Pennsylvania Code states:

Any person who-is incompetent under section 5930 (relating to surviving party as a witness, in case of death, mental incapacity, etc.) by reason of interest may nevertheless be called to testify against his own interest, and in that event he shall become a fully competent witness for either party.

42 Pa.C.S.A. § 5932. The rationale for this exception is that it would be unfair to allow a party to call the challenged witness for the party’s benefit and then exclude the witness as to unfavorable testimony. Packel & Poulin, Pennsylvania Evidence § 601.5 (1987) (citing Gallagher v. Rogan, 330 Pa. 545, 199 A. 168 (1938)). Instantly, appellants called McCormick and asked him questions regarding events which occurred before Hill’s death and were adverse to McCormick’s interests. When the proponents of the estate initiate such testimony from the challenged witness, any objection to the witness’s testimony is effectively waived. Accordingly, under the exception, McCormick became fully competent for both parties as to all matters. See Packel & Poulin, supra at § 601.5.

Notwithstanding McCormick’s properly admissible testimony which the trial court chose to believe, we still find that the evidence was insufficient to prove donative intent. The trial court concluded that donative intent was proven by the following: Hill gave McCormick a sole power of attorney, Hill signed the certificates and gave them to McCormick and McCormick cared for Hill on a daily basis until her death. Appellants contend that these findings alone do not establish donative intent. We agree.

As noted above, it was McCormick’s initial burden to establish donative intent by clear and convincing evidence. Our Supreme Court has defined clear and convincing as follows:

the witnesses must be found to be credible, that the facts to which they testify are distinctly remembered and the details thereof narrated exactly and in due order, and that their testimony is so clear, weighty, and convincing as to enable the jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.

In re Estate of Fickert, 461 Pa. 653, 658, 337 A.2d 592, 594 (1975).

McCormick testified that Hill first gave him the certificates in February of 1991 for “safe-keeping” because there were visiting nurses in the house. (R.R. 313a.) At this point he stated that Hill had not endorsed the certificates. Next, McCormick testified that Hill endorsed the certificates in March of 1991. (R.R. 299a). He later testified, however, that the certificates were not endorsed until April. (R.R. 314a.) McCormick was also unable to designate the precise date that he received the sole power. Additionally, our review of the record reveals that McCormick failed to proffer evidence of Hill’s donative intent for each and every transaction he performed.

For the foregoing reasons, we conclude that McCormick failed establish a prima facie case of a gift inter vivos, since there was no clear and convincing evidence of donative intent and delivery. The burden should therefore not have shifted to appellants to rebut the validity of the gifts.

II.

Turning to appellants’ second argument, we must determine whether the lower court abused its discretion or committed an error of law in holding that no confidential relationship existed between Hill and McCormick. For the purposes of this discussion, we shall assume that McCormick offered sufficient evidence to establish a prima facie case of donative intent and delivery.

A confidential relationship exists where the circumstances “make it certain that the parties did not deal on equal terms; where, on the one side there is an overmastering influence, or on the other, weakness, dependence or trust, justifiably reposed.” Weir v. Ciao, 521 Pa. 491, 504, 556 A.2d 819, 825 (1989). The burden is initially on the party seeking to set aside a transaction to prove that a confidential relationship existed between the parties. Thomas v. Seaman, 451 Pa. 347, 304 A.2d 134 (1973). “[W]here undue influence and incompetency do not appear and the relationship between the parties is not one ordinarily known as confidential in law, the evidence to sustain a confidential relationship must be certain, it cannot arise from suspicion or from infrequent or unrelated acts.” Weir, supra 556 A.2d at 825. If it is established that a confidential relationship existed at the time the alleged gift was made, the burden shifts to the donee to show that the alleged gift was free of any taint of undue influence or deception. Id.; Banko, supra.

Appellants argue that the inter vivos transfers should be set aside because Hill was incompetent. Specifically, they aver that Hill was mentally confused and in a weakened state during the months preceding her death when all of the disputed transactions occurred, and the burden should have been placed on McCormick to prove the gifts were a free, voluntary and intelligent act. During this time, McCormick brought Hill to the Pocono Medical Center where she was examined by Dr. William Ryan. McCormick told Dr. Ryan that Hill was suffering from hallucinations. Apparently, Hill had indicated that she had been flown in a blimp and was talking to imaginary persons. (R.R. 177a-178a.) Dr. Ryan testified that Hill was “confused” during her hospital stay. (R.R. 179a.) Hill was discharged four days later after refusing to undergo a neurological evaluation. The discharge summary included the diagnosis: “dementia, alzheimer’s type.” (R.R. at 182a.)

Additionally, Margaret Schland-Horan, an employee of Visiting Nurses of Monroe County, testified that she had personal contact with Hill in the months following her discharge from the hospital and prior to her death. Schland-Horan testified that Hill was unable to answer questions correctly, at times appeared “delusional,” and often saw warriors in the room. (R.R. 202a-203a.) She also testified that Hill stated that her dogs would help around the house by fetching washcloths and towels. (R.R. 204a.) Hill also threw her colostomy bag, and other items, at the visiting nurses. (R.R. 206a.)

Nevertheless, the trial court found that appellants had failed to prove that McCormick had an overmastering influence or a superior position over Hill. Rather, the court found that there was sufficient evidence to support the conclusion that Hill was a strong-willed and independent individual. First, Felicity Gearhart, a friend of McCormick’s who helped care for Hill, testified that Hill was very much aware of her basic needs, always made sense in her conversations, had no difficulty communicating, and always knew the day of the week. (R.R. 271a-272a.) Second, Louise Metzger stated that Hill collected money at bingo games during February, March and April of 1991 and was “really dedicated and competent.” (R.R. 266a.) Third, Harry Rhodes, who resided with Hill prior to her death, testified that in May of 1991, Hill had no trouble communicating and knew where she was and what she was doing. ' (R.R. 284a-286a.) Finally, McCormick testified that Hill experienced hallucinations during radiation treatments; however, her medication was gradually reduced, and she was no longer hallucinating at the time she gave him the certificates. (R.R. 303a-304a.) Accordingly, there was sufficient evidence to support the trial court’s findings with respect to Hill’s competency and we will not disturb this finding.

Our review of the law in this area, however, indicates that demonstrating the incompetency of the decedent constitutes only one way of demonstrating the existence of a confidential relationship. For example, a confidential relationship may be established by proof that the alleged donee possessed a power of attorney over a decedent’s assets. As Justice Roberts stated in Foster v. Schmitt, 429 Pa. 102, 239 A.2d 471 (1968):

[I]f there be any clearer indicia of a confidential relationship than the giving by one person to another of a power of attorney over the former’s entire life savings, this Court has yet to see such indicia.

Id. at 108, 239 A.2d at 474. This is particularly true, when the alleged donee is shown to have spent a great deal of time with decedent or assisted in decedent’s care. For example, in Foster, the Court noted that the alleged donee was a constant companion of decedent and administered practically all of decedent’s personal and business affairs during the waning years of decedent’s life. Similarly, in In re Estate of Keiper v. Moll, 308 Pa.Super. 82, 454 A.2d 31 (1982), a confidential relationship was established where the son-in-law had been given a power of attorney over decedent’s assets, decedent had recently lost his wife, was terminally ill from cancer and unable to care for himself, and was growing mentally weaker. As in this case, there was no finding in Keiper that decedent was incompetent. Rather, the court found that decedent had reposed trust in his son-in-law and “could easily have assumed his affairs would be administered with his best interest in mind.” Cf., In re Estate of Ziel, 467 Pa. 531, 359 A.2d 728 (1976) (alleged donee’s power of attorney over estate of decedent insufficient to establish confidential relationship where it was clear the power was executed only for the convenience of alleged donor).

Assuming that McCormick can establish sufficient evidence on remand of the sole power-of-attorney, the circumstances surrounding the relationship between Hill and McCormick would unequivocally establish a confidential relationship. According to McCormick and the branch manager of Palmer-ton National Bank, the sole power gave him broad authority over Hill’s life savings. Sufficient proof of the sole power, coupled with the fact that Hill was ailing from cancer, diagnosed with dementia, alzheimer’s type, and depended upon McCormick for her care, would operate to shift the burden to McCormick to prove the gifts were fair and free from suspicion. As Judge Hoffman noted in Keiper, “[transactions by which a decedent shortly before his death practically strips, himself of all his available property are naturally regarded with suspicion, and are to be scrutinized with a keen and somewhat incredulous eye.” Id. 308 Pa.Super. at 87-88, 454 A.2d at 34 (citing Wise’s Estate, 182 Pa. 168, 37 A. 936 (1897)).

Based upon the record before us, we are unable to sustain the trial court’s ruling that McCormick’s receipt of Hill’s assets was accomplished pursuant to a valid inter vivos gift. Accordingly, we are convinced a new trial is warranted.

III.

In their final argument, appellants assert that the trial court should have permitted them to open the record to admit additional evidence of McCormick’s alleged fraud against Hill’s estate. Specifically, appellants alleged that McCormick used Hill’s Sears charge card after her death to purchase $1,045.04 worth of items for his personal use. We need not address this issue, however, since we remand for a new trial.

Reversed and remanded for further proceeding consistent with this opinion. Jurisdiction relinquished.

      . McCormick testified that he wrote checks against Hill’s bank accounts from First National Bank of Palmerton in the amount of $750.00 to his son and $700.00 to a Joseph McDonald on May 5, 1991; $1,254.00 to McDonald and .$500.00 to Ron Soja on May 7, 1991; and $1,000.00 to his son on May 9, 1991; and $3,647.17 to pay off his debt to Regency Consumer Discount on May 15, 1991. All of these checks were signed by McCormick with the designation "POA.” (R.R. 248a-253a.)

      . Hill’s will specifically bequeathed $6,000.00 to Hera, and gave the residuary of her estate to Rosenthall and Hera in equal shares. (R.R. at 20a.) Additionally, the will provided that McCormick and Rhodes could remain in her home rent free for so long as it remained unsold.

      . The trial court suggests in its opinion that appellants failed to present any evidence negating the existence of the sole power. It suggested that since appellants argued that the sole power never existed, they could have called Attorney Krawitz to prove that he did not draft the alleged document. We note that it was not appellants’ burden to disprove the validity of the gifts before McCormick established his prima facie case.

      . Section 5602 enumerates specific quoted language which may- be included by a principal to authorize the attorney-in-fact to perform certain acts. Our Supreme Court has recently rejected the notion that the quoted language is required to authorize these acts. Estate of Reifsneider, 531 Pa. 19, 610 A.2d 958 (1992). Rather, the Court stated:
      [Gjeneral language can "show a similar intent on the part of the principal” to empower' the attorney-in-fact to do one or more of the listed things if the general language, according to its common usage, would be understood as encompassing such power or powers.

        Id. at 26, 610 A.2d at 962 (emphasis in original); contra Reifsneider,dissenting opinion by Nix, C.J. (specific language or "other language showing a similar intent” required to authorize acts enumerated in § 5602). In any event, it appears that Hill’s intent to allow McCormick to make gifts would have to be apparent from the instrument.

      . Section 5930 states in pertinent part:
      Except as otherwise provided in this subchapter, in any civil action of proceeding, where any parly to a thing or contract in action is dead ... and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record who represents his interest in the subject in controversy, neither any surviving or remaining party to such a thing or contract, nor any other person whose interest shall be adverse to the said right of such deceased ... party, shall be a competent witness to any matter occurring before the death of the said party.
      42 Pa.C.S.A. § 5930.


author: TAMILIA, Judge. JOHNSON, Judge,

text:
    625 A.2d 692
    David Stephen SAWKO v. Lynne SAWKO, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 15, 1992.
    Filed May 21, 1993.

      David C. Martin, Jr., Pittsburgh, for appellant.
    Robert L. Garber, Pittsburgh, for appellee.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   TAMILIA, Judge.

Lynne Sawko takes this appeal from the August 1, 1990 Order denying her petition for custody modification, establishing a schedule of partial custody during November, 1990, and scheduling a hearing on November 21, 1990, establishing custody and partial custody of the parties’ minor child Stephen Ray Sawko, born March 31, 1986. The parties were married on October 5, 1985 and lived in Florida until October, 1987, when mother left father and returned with- Stephen to her family home in Allegheny County. Father remained in Florida and continues to reside there with his mother. In this appeal, mother presents two issues for our review:

1. Did the trial court abuse its discretion in declining to modify the existing custody Order in favor of mother following an automobile accident in which father, appellee David Sawko, was injured and the child had been a passenger in the vehicle?
2. Did the trial court err in failing to presume culpability for civil purposes after father invoked his fifth amendment right not to incriminate himself concerning whether he had been drinking or had possession of alcohol immediately prior to the accident?

Mother filed a petition for modification of custody on May 30, 1990, alleging, inter alia, that on May 20, 1990 in Florida, father “drank a sufficient amount of alcohol to become physically intoxicated and drove his truck while the minor child was a passenger in that truck. While he was driving that truck, [father] ran the truck into a telephone pole, causing injuries to [father]” severe enough that he was hospitalized for five days. Hearing was held on the petition on July 30, 1990, and the only witness called was father, who was examined as on cross-examination. On advice of counsel, father declined to answer certain questions surrounding the automobile accident, asserting his right not to incriminate himself.

At the conclusion of the hearing, the trial court left primary custody of Stephen in father, but increased mother’s partial custody rights and scheduled a six-month review hearing on the April 24, 1990 custody Order for November 21, 1990. Mother took a timely appeal from the Order of August 1,1990. On November 19, 1990, the trial court continued generally the six-month review hearing on the basis that jurisdiction in the matter had been vested in this Court by virtue of mother’s appeal.

As an initial matter, we' note that our paramount concern and the “polestar of our analysis in this case, ... and a legion of prior custody cases, [is] the best interests of the child.... ” Lee v. Fontine, 406 Pa.Super. 487, 489-490, 594 A.2d 724, 726 (1991) (footnote omitted). The “best interests” standard, decided on a case-by-case basis, considers all factors which legitimately have an effect upon the child’s physical, intellectual, moral and spiritual well-being. Id. at 488, 594 A.2d at 725.

On appeal, our scope of review is broad in that we are not bound by deductions and inferences drawn by the trial court from the facts found, nor are we required to accept findings which are wholly without support in the record. On the other hand, our broad scope of review does not authorize us to nullify the fact-finding function of the trial court in order to substitute our judgment for that of the trial court. Rather, we are bound by findings supported in the record, and may reject conclusions drawn by the trial court only if they involve an error of law, or are unreasonable in light of the sustainable findings of the trial court.

Zummo v. Zummo, 394 Pa.Super. 30, 54, 574 A.2d 1130, 1142 (1990) (citations omitted).

For this reason, it is of little moment to the Court that mother failed to raise before the trial court the second issue she now raises on appeal, that “an adverse inference should have been granted” that father had consumed alcohol, that alcohol was in father’s automobile and that father was under the influence of alcohol at the time of the automobile accident. Ordinarily, this claim would be waived. Pa.R.A.P. 302(a); 2117(c). However, inasmuch as the custody Order and finding of the trial court, which ignored the adverse inference, could not be known to the mother until the Order was entered, waiver is not implicated. The mere mechanical constraint or procedural defect simply is not applicable. See Andrews v. Andrews, 411 Pa.Super. 286, 601 A.2d 352 (1991). The mother raised the issue the first time it became relevant, which was as an issue on appeal and as error on the part of the trial court. We cannot ignore the fact that contrary to most legal proceedings, there are no post-trial motions in custody cases and appeals must be taken from the final court Order. Obviously, if post-trial motions had been possible, such a charge of error would have been relevant at that time and would have preserved the issue for appeal. This situation is clearly distinguishable from Hill v. Hill, 422 Pa.Super. 533, 619 A.2d 1086 (1993), where the court refused to permit counsel to question the child, without objection by counsel, and raised for the first time on appeal, or Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1985), where the Supreme Court reprimanded this Court for sua sponte raising issues not raised in the trial court, reaffirming the doctrine of waiver as applicable to custody cases. Waiver most certainly applies in situations where an objection is in order and not properly made. It does not apply, as here, where an inference could be derived by action or nonaction of one of the parties, and the trial court, in its findings and Order, failed or refused to draw it. The latter may be charged as error .on appeal whether or not counsel specifically requested such a finding during trial.

Turning to the central issue in this appeal, we must determine whether the trial court abused its discretion in declining to modify the existing custody Order in favor of mother as a result of matters alleged in her petition for modification. The Crimes Code states: “A parent, guardian, or 'other person supervising the welfare of a child under 18 years of age commits a misdemeanor of the first degree if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.” 18 Pa.C.S. § 4304. This section is to be given meaning by reference to the common sense of the community and the broad protective purposes for which the section was enacted. Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228 (1984). Pursuant to 23 Pa.C.S. § 5303(b), Consideration of criminal conviction, where a parent who has pled guilty or no contest to a number of offenses, including 18 Pa.C.S. § 4304, the court is required to determine that the parent does not pose a threat of harm to the child before making an Order of custody, partial custody or visitation to that parent.

In this case, father testified at the July 30, 1990 hearing that he had paid a fine of $52.00 in Florida in connection with the automobile accident on a charge of careless driving. (N.T., 7/30/90, p. 12.) Fla.Stat.Ann. § 316.1925 (West 1990). Father was not charged with driving under the influence, Fla.Stat.Ann. § 316.193, or with possession of open containers of alcoholic beverages, Fla.Stat.Ann. § 316.1936. As a result, father invoked his fifth amendment right against self-incrimination.

The United States Supreme Court recently held:

[T]he Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charges in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted---- The critical inquiry is what conduct the state will prove, not the evidence the state will use to prove that conduct.

Grady v. Corbin, 495 U.S. 508, 521, 110 S.Ct. 2084, 2093, 109 L.Ed.2d 548, 564 (1990). Careless driving, however, is not a lesser included offense of the more serious charge of driving while intoxicated. Massey v. City of Gainesville, 296 So.2d 64 (Fla.Dist.Ct.App.1974). Therefore, father was not immunized from further prosecution and his fifth amendment claim was a valid one.

We include this discussion not because of our interest in any charges which were filed against father or may have been filed subsequently, but to state facts which we find should have compelled the trial court to further inquiry. This Court cannot conceive the trial court not pursuing father’s behavior further if it involved sexual abuse or assaultive behavior involving the child. A single act may trigger a review of a custody Order and may be sufficient to modify or reverse the original custody Order where it is so threatening to the child’s physical, psychological or moral well-being as to be required in the best interest of the child. No case law beyond the law of common sense need be cited for this proposition. While father refused to testify as to drinking or having alcohol in his vehicle, there was a stipulation that at the time of the collision there was alcohol in his system and a beer can and one one-ounce container of alcohol in the vehicle (N.T., pp. 14-15). Nevertheless, the trial court would not pursue father’s fitness to retain custody of Stephen.

Moreover, we do not find father’s invocation of his fifth amendment privilege acted as a bar to further exploration of this issue. While a defendant in a civil case may invoke the privilege of the fifth amendment against self-incrimination, and invocation of the privilege may not be used against him in any way in a subsequent criminal prosecution, the trial court in a civil case may draw any adverse inference which is reasonable from the assertion of the privilege. Crozer-Chester Medical Center v. May, 366 Pa.Super. 265, 531 A.2d 2 (1987); U.S. Steel and Carnegie Pension Fund v. Decatur, 364 Pa.Super. 294, 528 A.2d 165 (1987). The analogy to this custody case is inescapable. '

The fact that the father, at the custody hearing leading to the Order of April 24, 1990 awarding him custody, testified he had not used alcohol or drugs since October H, 1987, yet on May 20, 1990, five days after gaining physical custody, was involved in the single car accident with alcohol in his blood, alone requires a complete reevaluation of the father’s lifestyle and his ability to safely parent the child. Inescapably, the failure of the court to find some adverse inference from the stipulation and facts surrounding the father’s drinking, coupled with a motor vehicle accident, was a failure of the trial court to provide the full and comprehensive hearing required by the law in custody cases.

It appears that at the subsequent hearing to modify the custody Order, the trial court, five months later in August, 1990, relied on the evidence of the April, 1990, custody hearing which was weighed heavily in favor of the father due to psychological and sociological reports. The court ignored the father’s subsequent conduct, despite the life-threatening consequences of that behavior. The least the court should have derived from this behavior was the questionable reliability of the father’s testimony concerning his drinking habits and the belief that the father’s involvement in Narcotics Anonymous assured his abjuration of drags and alcohol.

This single incident was sufficient to shift the scales as to parental fitness in favor of the mother and to require the father to come forward with evidence of his fitness to overcome the serious lapse demonstrated by his crash, while involved with alcohol, with the child in the car. The test as to best interest when two parents are involved is evaluated on a scale that is initially weighed equally as to each parent, and when that scale is tipped in favor of one of the parents, the other must come forward with evidence to reverse the balance. In the Interest of Coast, 385 Pa.Super. 450, 561 A.2d 762 (1989).

Much seems to be made of the more desirable environment in Port Orange, Florida, as compared to Duquesne, Pennsylvania. While this might be true, the possibility of becoming an inhabitant of a cemetery in Port Orange carries little preferment over being alive in Duquesne.

It is disturbing that the record in this case, for whatever reason, only reached this Court in April, 1992, and the review hearing of November, 1990, was never held because an appeal had been taken. That review hearing could have been conducted if a motion to quash had been timely presented because the Order of August, 1990, was, in effect, interlocutory. Custody cases are badly served by such unwarranted delays. The resolution left to this Court is, in effect, a non-resolution since time alone (more than two and one-half years) renders the appeal of August, 1990, moot and the relief requested by appellant (change of custody to mother) impractical. We, therefore, remand this case for a full hearing as to the present circumstances and require appellee father to testify concerning his use of alcohol/drags from the time of the accident up to the present. Time has eliminated any likelihood that he can be further prosecuted for his actions in May, 1990, since the statute of limitations is two years. Fla.Stat.Ann. § 775.-15(2)(c).

We wish to reiterate that in determining child custody, the trial court may inquire into the best interests of the child irrespective of whether a substantial change in circumstances has been demonstrated. Altus-Baumhor v. Baumhor, 407 Pa.Super. 276, 595 A.2d 1147 (1991). This inquiry should have overridden father’s invocation of this fifth amendment privilege. It was in Stephen Sawko’s best interest to conduct a new hearing after father’s dangerous conduct came to light.

Case remanded for proceedings consistent with this Opinion.

Jurisdiction relinquished.

Dissenting Opinion by JOHNSON, J.

JOHNSON, Judge,

dissenting:

I agree with my distinguished colleagues that the order of August 1, 1990, from which Lynne Sawko (Mother) attempts to appeal is interlocutory. Clearly, the appeal should be dismissed. The majority declares, however, that established principles of waiver must be swept aside as “mere mechanical constraints or procedural defects” in order to force the trial court to hold still another hearing and to “require appellee father to testify.” Since I am unaware of any authority to support either of these propositions, and since my colleagues have not provided any, I must dissent.

It is incumbent upon this Court to determine whether an appeal is properly before it. Parker v. MacDonald, 344 Pa.Super. 552, 557, 496 A.2d 1244, 1247 (1985). The current posture of this case leads me to conclude that this appeal is interlocutory and should be dismissed. The very able trial judge, the Honorable Max Baer, presided over a full, two-day custody hearing on April 18 and 19, 1990, involving fifteen witnesses. The complaint was brought originally by David Sawko (Father) to secure custody of the parties’ son, Stephen Ray Sawko (Child), then age 3.

On April 20, 1990, Judge Baer entered extensive findings of fact and conclusions of law on the record in open court. Transcript of Custody Hearing, April 20, 1990, pages 689-714, Transcript of Findings of Fact and Conclusions of Law, April 20, 1990, pages 2-26. The findings and conclusions supported a typed and filed Order of Court dated April 24, 1990, granting Father legal and physical custody, and granting Mother liberal partial custody. No appeal was taken from that Order.

Less than five weeks later, Mother presented a Petition for Modification alleging that an intoxicated Father had been involved in an automobile accident in Florida while Child was a passenger in Father’s vehicle. A scheduled hearing followed, at which Mother was not prevented from introducing whatever evidence might support a change in the recent custody order. On August 1, 1990, Judge Baer denied relief on the Petition for Modification but did schedule an additional review hearing for November 21, 1990. Rather than awaiting this scheduled hearing, Mother took an appeal from the August 1, 1990, order of court.

In Parker v. MacDonald, supra, the challenged order disposed of the parties’ rights to custody during a period between November, 1984 and July, 1985 and thereafter, unless and until a petition for re-examination of custody would be filed by one of the parties. 344 Pa.Super. at 558, 496 A.2d at 1247. We there concluded that the order had sufficient aspects of finality to be appealable. Id. In the case presently before us, no appeal was taken from the custody order entered on April 24, 1990, and a six-month review was already scheduled prior to the attempted appeal from the August 1, 1990 order. That latter order did nothing more than deny modification of the existing order entered less than five weeks before. On these facts, I would conclude that the appeal is interlocutory and should be dismissed. Edmonds v. Western Pennsylvania Radiology Association, 414 Pa.Super. 567, 607 A.2d 1083 (1992); Williams v. Thornton, 395 Pa.Super. 276, 577 A.2d 215 (1990). The order denying modification does not put Mother out of court and is, therefore, not final. Ratz v. Ratz, 359 Pa.Super. 8, 10, 518 A.2d 317, 318 (1986) (order denying mother’s motion to dismiss for lack of subject matter jurisdiction father’s petition for custody not a “final order” for appeal purposes).

To the extent that my colleagues agree that this appeal is interlocutory, supra at 458-59,1 readily join with them. I can also agree that the delay in this case is “disturbing”. Mother can share the blame for this delay in that her counsel failed to order the complete transcripts at the time the appeal was taken in 1990. See Pa.R.A.P. 1911(a). Although Mother did finally order and pay for the necessary transcripts sometime subsequent to our order of May 31, 1991, the trial court was not notified that the transcripts had been filed until late March 1992, when Judge Baer discovered their filing while dealing with unrelated matters. Counsel for both parties agreed to the cancellation of the scheduled November 21, 1990, hearing in a telephone conference with Judge Baer. Supplemental Opinion, Baer, J., April 16,1992, page 3. Finally, this Court can share the blame inasmuch as the appeal was argued on October 15,1992, and has been with this panel since that date.

Although an interlocutory appeal should be dismissed without more, my colleagues have addressed the contentions raised on appeal. Even if the appeal were properly before this Court, the result should not change. Mother is not entitled to any relief beyond that already granted by Judge Baer.

Neither of the two issues which Mother brings before us on appeal warrants the relief my colleagues would grant. The first issue, as set forth by Mother, is:

1. Did Judge Baer abuse his discretion in declining to modify the existing custody order in favor of Mother, following a one-car automobile accident in which David Stephen Sawko, Father, was injured and Child had been a passenger in the vehicle?

The majority has not addressed this first issue directly. I have found no abuse of discretion by Judge Baer in declining to modify the existing custody order on the skimpy evidence presented by Mother. In cases of existing custody orders, the party seeking to modify that award must meet the burden of proving a substantial change of circumstances which would justify the change. Parker v. MacDonald, supra, 344 Pa.Super. at 559, 496 A.2d at 1247. Clearly, the testimony of Father admitting that he was injured in an automobile accident where empty containers of alcohol were found, without any evidence on the record of injury or adverse impact upon Child, is insufficient to support a change in custody. The majority seems to accept this conclusion. Thus, we are in agreement that the first issue raised by Mother is without merit, since the party charged with the responsibility of establishing a basis for change of custody has failed to meet that burden.

The Petition for Modification of Custody alleged that on May 20, 1990, Father:

drank a sufficient amount of alcohol to become physically intoxicated and drove his truck while the minor child was a passenger in that truck. While he was driving that truck, [Father] ran the truck into a telephone pole, causing injuries to [Father] severe enough that [Father] has had to be hospitalized from May 20th for an expected week and a half.

Petition for Modification of Order of Court, filed May 30,1990, ¶ 3, pp. 1-2. At the hearing held on the Petition, on July 30, 1990, the only witness called by Mother to support her Petition was Father, who was examined as and for cross-examination. On advice of counsel, Father declined to answer certain questions surrounding the vehicle accident, relying upon his right not to incriminate himself. Mother offered no further testimony or evidence on the issue. More importantly, Mother offered no testimony whatsoever concerning any impact, adverse or otherwise, that the incident may have had on the child.

At the conclusion of the hearing, Judge Baer declined to modify the custody order, which had been entered three months before, in the manner that Mother had requested. While leaving primary custody with Father, the hearing court did increase the liberal partial custody rights of Mother and scheduled a six-month review hearing on the earlier custody order for November 21, 1990. Mother took an appeal from the order entered August 1, 1990. That appeal prompted Judge Baer, following telephonic conference with counsel for both parties, to enter an order continuing, generally, the six-month review on the basis that jurisdiction had been vested in this Court by virtue of the appeal. Order, Baer, J., November 19, 1990, filed November 20, 1990.

As Judge Baer has succinctly asserted in his Rule 1925 Opinion:

The gravamen of Mother’s Petition for Modification is that Father’s automobile accident with Child present, and while Father was allegedly intoxicated requires that this Court reverse its decision made after a full two day hearing, and award Mother custody.

Supplemental Opinion, Baer, J., April 16, 1992, page 4.

It is clear that in matters of custody and visitation, the ultimate consideration of the court is a determination of what is in the best interests of the child. Such a determination, made on a case-by-case basis, must be premised upon consideration of “all factors which legitimately have an effect upon the child’s physical, intellectual, moral and spiritual well-being.” Lee v. Fontine, 406 Pa.Super. 487, 488, 594 A.2d 724, 725 (1991), citing Zummo v. Zummo, 394 Pa.Super. 30, 574 A.2d 1130 (1990). In Stolarick v. Novak, 401 Pa.Super. 171, 584 A.2d 1034 (1991), we reiterated our scope of review as defined in Mumma v. Mumma, 380 Pa.Super. 18, 21, 550 A.2d 1341, 1343 (1988), as follows:

In reviewing a custody order, we are not bound by findings of fact made by the trial court which are unsupported in the record, nor are we bound by the court’s inferences drawn from the facts. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 294-95, 368 A.2d 635, 637 (1977). However, on issues of credibility and weight of the evidence, we defer to the findings of the trial judge, who has had the opportunity to observe the proceedings and the demeanor of the witnesses. Id. at 295, 368 A.2d at 637. Only where we find that the custody order is “manifestly unreasonable as shown by the evidence of record ...” will an appellate court •interfere with the trial court’s determination.

See also Karis v. Karis, 518 Pa. 601, 544 A.2d 1328 (1988); Andrews v. Andrews, 411 Pa.Super. 286, 601 A.2d 352 (1991).

On this appeal, we are looking at something more than a single, brief hearing at which Father testified as to events which occurred on one afternoon. As Judge Baer suggests in footnote 4 of his Supplemental Opinion, this Court must take into consideration all of the facts leading up to the trial court’s initial order of April 24, 1990. The many factors underlying that decision, when placed in context, help to explain why the trial court declined to reverse the April 24th order on July 30th, but was prepared to undergo a timely, thorough six-month review the following November.

From our review of the many pleadings and depositions filed in this case, it seems clear that Judge Baer was faced with a serious, complex situation. Both parents had been involved in substance abuse during their marriage and had engaged in various counseling programs to deal with these problems. The trial court acted promptly to review the allegations advanced by Mother and to afford both parties their rights. No evidence was offered, nor was any alleged in the Petition for Modification, to suggest that the minor child who is the subject of this custody dispute was physically injured as a result of the vehicle accident. Mother has not offered any testimony as to the adverse impact upon the minor child as a result of this incident.

I would not say that one incident in which the child was not injured should result in a change of custody without any evidence as to the impact upon the child’s best interest. Here, the record is devoid of any testimony subsequent to April 20, 1990, on this issue.

The original custody order of April 24, 1990, did not prompt an appeal. We have no reason to question the determination made, at that time, by the distinguished hearing court judge. Following my review of the record developed subsequent to that order, I conclude that Judge Baer did not abuse his discretion when he declined to reverse the earlier order but, instead, scheduled a six-month review hearing.

On the second issue, I wish to distance myself from my colleagues as far as jurisprudentially possible. Mother argues, in her second issue, that “an adverse inference should have been granted” that Father had consumed alcohol, that alcohol was in Father’s automobile, and that Father was under the influence of alcohol at the time of the collision. This issue is meritless.

Mother does not inform us, anywhere in her Brief, as to either the stage in the proceedings before the trial court where this issue was raised or the manner in which Mother raised this question. Pa.R.A.P. 2117(c). Mother never made any request, either formal or informal, for such an inference at any time during the hearing nor did Mother expressly request this specific finding of fact. To the extent that the failure to draw a specific inference was not brought to the trial court’s attention at any time prior to the taking of the appeal, I would be constrained to find the issue waived. Pa.R.A.P. 302(a); Hill v. Hill, 422 Pa.Super. 533, 619 A.2d 1086, 1088 (1993).

My colleagues state that “inasmuch as the custody Order and finding of the trial court, which ignored the adverse inference, could not be known to the mother until the Order was entered, waiver is not implicated.” Supra at 694. The majority goes on to state: “The mother raised the issue the first time it became relevant, which was as an issue on appeal and as error on the part of the trial court.” Id. I am unaware of any existing case law to support either of these propositions and my colleagues have not set forth any precedent on the issue. A hearing court is neither obligated nor expected to draw inferences that are not advanced by the party seeking such inference to be drawn. The failure to produce evidence raises a permissible inference, not a mandatory inference or presumption. Peugeot Motors of America, Inc. v. Stout, 310 Pa.Super. 412, 420, 456 A.2d 1002, 1006 (1983); Raffaele v. Andrews, 197 Pa.Super. 368, 371, 178 A.2d 847, 849 (1962); Packel and Poulin, Pennsylvania Evidence (1987), § 419, page 249.

If Mother did not supply evidence sufficient to meet her burden of proof on the question of changed circumstances and adverse impact upon Child, any possible adverse inference created by Father’s failure to testify as completely as Mother might have liked will not supply it for him. Fitzpatrick v. Philadelphia Newspapers, Inc., 389 Pa.Super. 438, 445, 567 A.2d 684, 688 (1989), appeal denied, 525 Pa. 618, 577 A.2d 890 (1990). Even if we assume that Mother was entitled to an adverse inference and that, as a result, Mother and her witnesses should be regarded as credible, we are still required to determine whether the evidence supplied by Mother constituted clear and convincing evidence that. Child had been materially and adversely affected by Father’s conduct and the best interests of Child required a departure from the recently-entered custody order from which no appeal had been taken. Id. Moreover, given Mother’s failure to come forward with any evidence whatsoever except the testimony of Father while on cross-examination, counsel for Father may well have been satisfied that Mother had not met her burden of proof in establishing grounds for change of custody and that, therefore, Father had no burden to meet. Under these circumstances, no presumption or inference could arise from Father’s failure to either call witnesses or testify further. Raffaele v. Andrews, supra, 197 Pa.Super. at 371, 178 A.2d at 849.

My colleagues seemingly would require the trial judge to step down from his position as neutral arbiter and, simply on the basis that one of the parties has engaged in admittedly improper conduct, assume the role of advocate for purposes of proving Mother’s case. I do not understand why it is Judge Baer’s “fault” if the record in this case is absolutely devoid of any evidence concerning any impacts upon the child subsequent to the full and careful hearing conducted in April 1990. Well established principles of appellate review require an intermediate appellate court to refrain from advancing issues not properly developed by the parties on appeal. I decline to join such a facile effort to abolish the proper relationship between our conscientious, hard-working trial courts and this intermediate appellate court. See Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1985).

Neither Mother nor my colleagues cite to any case law which would require, or strongly support, the result Mother seeks. This is so even assuming that the inference as to Father’s inebriated state at the time of the accident were drawn. One should not read Judge Baer’s Supplemental Opinion, filed April 16, 1992, as rejecting the inferences which Mother would submit so much as it declines to follow her requested conclusions.

Without evidence of a harmful effect on the child, a parent’s past conduct should have little weight in making a custody-decision. Michael T.L. v. Marilyn J.L., 363 Pa.Super. 42, 49, 525 A.2d 414, 418 (1987); Bresnock v. Bresnock, 346 Pa.Super. 563, 573, 500 A.2d 91, 96 (1985); In re Custody of Pearce, 310 Pa.Super. 254, 259, 456 A.2d 597, 600 (1983). See and compare Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 140-141, 360 A.2d 587, 589-90 (1976) with In re Wesley J.K., 299 Pa.Super. 504, 509 n. 4, 445 A.2d 1243, 1245 n. 4 (1982). Changes that do not have an impact on the child are irrelevant. Snarski v. Krincek, 372 Pa.Super. 58, 69-70, 538 A.2d 1348, 1354 (1988).

In the case now before us, Mother sought to secure a modification of custody relying solely on testimony from the mouth of Father. The record of the July 30,1990, conciliation hearing contains no evidence whatsoever as to the effect, if any, that Father’s drinking had upon Child. The majority on this appeal does not even attempt to posit actual harmful effect on Child but instead insists that Father’s limited testimony:

... was sufficient to shift the scales as to parental fitness in favor of mother and to require the father to come forward with evidence of his fitness to overcome the serious lapse demonstrated by his crash, while involved with alcohol, with the child in the car.

Majority opinion, page 458.

My colleagues make no mention of the Findings of Fact entered on the record by Judge Baer on April 20, 1990, in support of the custody order of April 24, 1990, from which no appeal was taken. With respect to the fitness of Mother, Judge Baer found the following:

As to the mother, I found that she is more laid back, more relaxed which is not necessarily bad but in this context has caused her to not be sufficiently focused upon her life and her children’s life and in comparison with the father makes it clear to me that her home is not as well suited for this child.
The mother was abused by her boyfriend George Savinda, this necessitating x-rays to her nose while George Savinda was staying with her and the children. Mother stabbed George Savinda during a major argument.
Tom Shipley, mother’s current boyfriend, has been forced to file or has chosen to file criminal harassment charges of some sort against George Savinda.
Mother was found liable on a bad check charge brought by one of her landlords.
Generally, and I will continue to specify in the sense of work and home, since the split of mother and father in 1987, mother’s life has been unstable, somewhat chaotic, and the Court finds that the excuses and the justifications are simply not convincing.
Mother has stayed nights at her boyfriend’s home, Tom Shipley, with the children sleeping on the couch. Mother’s testimony is they could have slept in a bed. This Court does not believe that it is appropriate for a six and three-year-old to sleep over at a boyfriend’s house with the mother.
Mother’s work moves, unlike father’s, have been forced. She was fired from K-Mart. It was certainly unplanned. It was unscheduled. She has gone to work for Laidlaw, and I hope she does well with them, has had one report of improper or of warning because of three tardies in a year and a half.
The same is true of mother’s moves as contrasted to father’s moves. They have been reactive. She has not controlled them, and they have been part of her difficulties in this case. She moved from 22 South Sixth Street because, according to her testimony, the landlord asked for money once a month rather than twice a month, and she could not have cash for it. I found that excuse to be unsatisfactory and incredible. It is the same amount of money. With any kind of planning and support, mother should not have been forced to make that move.
Four months later, mother moved from 222 West Grant Street because it was a poor environment for the kids. The evaluator had said so, and she recognized it. Between five and ten months later, mother moved from Turtle Creek to her mother’s house.
The discrepancies between when she actually moved and when she gave her lease up because Turtle Creek was too expensive, surely she knew five months before that it would be too expensive or should have known.
Mother’s moving into her mother’s house was very recent before this hearing. Depending upon when she actually moved, some time between October of 1989 and February of 1990. The timing leaves some doubt as to the sincerity of the move, whether or not it was for the children or for the mother or to prepare for the court hearing.
Both mother and maternal grandmother testified that when mother’s finances got better, she would move again. Maternal grandmother discussed it, and while mother was free to stay, there was no evidence on this record that mother would stay. There is no evidence on this record that convinces this Court based upon everything that it has heard and seen that when mother moves again that this cycle of job difficulty and moves it not going to begin again. The Court finds this very detrimental to the children.
Despite mother’s difficult financial circumstances which this Court empathizes and sympathizes with, the maternal grandmother and grandfather charge her $250 in rent. This does not evidence the kind of support this Court would like to see from the grandparents and is specifically contrasted with the support the paternal grandmother has given. This is not meant of [sic] criticism of the maternal grandmother. These are the facts.
Despite mother’s problem with a bad check and a suit before the District Justice, the maternal grandmother’s testimony was that was mother’s problem. She would not get involved.
Again, I have the same comment in the sense of the maternal grandmother’s commitment to helping. The maternal grandmother’s testimony was that they had a very large family in Pittsburgh, most of it centered in the Mon Valley where mother has lived and where maternal grandmother has lived their whole life, yet the evidence is absolutely bare that the mother’s family has done anything whatsoever to help this mother and to support the mother.
So, in short, in comparing the family units, the Court finds that the father’s family unit has been more willing, more able to provide the kind of stability necessary or in the best interest of the child.
With all of that in mind, the Court makes the following conclusions of law. Some of what I have said are conclusions of law. I recognize some of these are findings of fact. Those are somewhat intermingled in these kinds of cases, particularly when an opinion is delivered from the bench.
The Court did not find all of mother’s testimony to be credible or believable. The Court did find all of father’s testimony to be credible and believable.
The Court finds that the mother and maternal grandmother both find the maternal grandmother’s residence to be temporary, without a cut-off date, but nevertheless with the contemplation that when finances improve, mother -will move again. The Court finds that when' mother moves again, based upon all the evidence before this Court and the review of the credibility of the people, that the precipitant instability which has been the problem will continue to be the problem, and this is not in the children’s best interest.
The Court finds that mother’s history as recited herein regarding her work is also similar to her home moves, and there was no evidence that mother has taken steps to improve her financial situation, that she will stay with this job, and if she does that the job will be anything more than part time, that it will provide her with sufficient funds to get housing, to be stable, to have the kind of continuous living conditions, arrangements that are necessary and appropriate for the raising of this child.
The Court also finds that mother’s instability is not by design but is the result of this unstable and chaotic living situation and work situation which has plagued her at least since October of 1987.
The Court finds that the evidence of the support that will be provided by the paternal grandmother is far superior to the support that the maternal grandmother is willing to provide and that this is an important factor in comparing the overall situations.
Although not a particularly important factor and not the focus of the inquiry, this Court finds that the Port Orange area and its attendant facilities are somewhat superior to that available in Duquesne, Pennsylvania.
In short, the Court is going to enter an order that custody in this case be awarded to the father with partial custody to the mother.

Transcript of Custody Hearing, April 18, 19, 20, 1990, pages 697-706; Transcript of Findings of Fact and Conclusions of Law, April 20, 1990, pages 9-18.

From these findings and conclusions, the inference is reasonable that Judge Baer was not free to treat the prayer for relief brought by Mother less than five weeks later in a vacuum, as my colleagues seemingly suggest. The majority criticizes Judge Baer for “not pursuing father’s behavior further” and not engaging in “further inquiry.” Neither of these criticisms are found in Mother’s Brief, perhaps because there is no law to support them.

I cannot accept the rather novel assertion of my colleagues — unsupported by citation to any authority — that the single incident of the car accident “was sufficient to shift the scales as to the parental fitness in favor of the mother and to require father to come forward with evidence of his fitness.” Supra at 695. This simply is not the law as I understand it. Even if a substantial change were demonstrated, both parents share equally the burden of establishing with which parent the child’s interests would best be served. Parker v. MacDonald, supra, 344 Pa.Super. at 559, 496 A.2d at 1247.

Judge Baer had found as fact that Mother’s home was not as well suited as Father’s for the child. Mother’s life was unstable, somewhat chaotic and the excuses submitted by Mother were not convincing. Judge Baer found a lack of sincerity in Mother’s move into her mother’s house just prior to the April 1990, hearing and found that the cycle of job difficulty and moves very detrimental to the children, including Child here involved. Judge Baer found Father’s family unit “more willing, more able to provide the kind of stability necessary or in the best interest of the child.” Judge Baer concluded that the support that would be provided by the paternal grandmother is “far superior” to the support that the maternal grandmother is willing to provide and that this is an important factor in comparing the overall situation. See Transcript of Custody Hearing, April 18, 19, 20, 1990, pages 697-706; Transcript of Findings of Fact and Conclusions of Law, April 20, 1990, pages 9-18, supra.

These facts and conclusions led to Judge Baer’s unappealed custody order of April 24, 1990. The trial court did not abuse its discretion when, barely three months later, it declined to modify the recently entered child custody order in the face of an upcoming six-month review. My colleagues admit that their decision is, in effect, a “non-resolution”. Yet they would find error in the trial court for not shouldering Mother’s burden to put forth her case and come forward with whatever evidence Mother believed would warrant a modification of custody. In suggesting that either this court, or the trial court, can “require appellee father to testify”, the majority raises constitutional issues that are neither appropriate nor necessary for the proper resolution of this appeal.

The order from which the appeal was taken denied a change in custody. My colleagues, by remanding without reversing that order, impliedly concede that Judge Baer did not abuse his discretion when he denied Mother relief on her skimpy evidence. Of course, had Mother presented sufficient evidence to warrant a change of custody, no further trial court hearing proceedings would be necessary.

I believe that this appeal should be summarily dismissed as being brought from an interlocutory order not appealable as of right. Pa.R.A.P. 311, 341. The chief contention raised by Mother on this appeal was never presented to the trial court and is therefore waived. Nothing advanced by Mother at time of argument or in her Brief warrants relief. Were this appeal not dismissed, I would conclude that Judge Baer properly followed both law and procedure and that the August 1, 1990 order should be affirmed. Hence, this dissent.


author: TAMILIA, Judge.

text:
    625 A.2d 703
    PINE TOWNSHIP WATER COMPANY, INC., a Corporation, Appellant, v. FELMONT OIL CORPORATION, a Corporation, Consolidated Gas Supply Corporation, a Corporation, and Delta Drilling Company, a Corporation.
    Superior Court of Pennsylvania.
    Argued April 27, 1993.
    Filed May 25, 1993.

      George A. Conti, Jr., Greensburg, for appellant.
    David C. Serene, Indiana, for appellees.

      Before ROWLEY, President Judge, TAMILIA and BROSKY, JJ.
   TAMILIA, Judge.

Pine Township Water Company appeals from the November 5, 1992 Order denying its petition to open the June 3, 1992 judgment of non pros entered as a consequence of its delay and lack of diligence in prosecuting the Township’s complaint in trespass against the appellees, Freemont Oil Company (Freemont), Consolidated Gas Supply Company (Consolidated) and Delta Drilling Company (Delta).

Appellant argues the defendants’ petition for non pros was precluded by Pa.R.J.A. 1901 which dictates, inter alia, a motion to terminate suit on the basis of inactivity shall be entered by the tribunal. Appellant avers the Court of Common Pleas of Indiana County adopted a local rule and practice, in accordance with Rule 1901, whereby the prothonotary would list for termination all cases without docket activity for two or more years and the court would then enter an Order stating all such cases would be terminated by judgment of non pros “unless appropriate action is taken by a party or parties in each case to reinstate the case.” (Appellant’s brief at p. 8.) It is appellant’s contention, pursuant to Rule 1901, a petition for non pros can be made only by court initiative. In the alternative, appellant argues judgment of non pros was improper because the requisite two-year period of inactivity had not passed, and appellees failed to allege prejudice.

Appellant has presented this Court with no authority to support its argument that pursuant to Pa.R. J.A. 1901 a motion for a judgment of non pros may be made exclusively by the hearing tribunal. To the contrary, the note following the Rule contemplates a party may move to seek dismissal of a stale action.

Note

The general policy set forth in Subdivision (a) is based on an administrative consideration, not substantive or procedural standards applicable to speedy trials in either civil or criminal cases. This rule is intended to supplement, not to modify or abrogate, procedural rules or substantive decisions involving the rights of defendants in criminal cases to a speedy disposition of charges. It is intended to foster elimination of stale cases from the judicial system where the parties have failed to proceed and which are carried as open matters because of the failure on the part of any party to seek dismissal or otherwise to bring the matter to a conclusion.

Pa.R.J.A. 1901, Note. Moreover,.support for the proposition a party may move for judgment non pros was expressed by our Supreme Court in Streidl v. Community General Hospital, 529 Pa. 360, 603 A.2d 1011 (1992):

It does not matter whether the Prothonotary notifies the party of its intent to terminate the case, or whether the non-delaying party petitions for dismissal; the same standards apply.

Id. at 362 n. 2, 603 A.2d at 1012 n. 2. Accordingly, we find appellant’s first argument devoid of merit.

The denial of a petition to open and/or strike judgment of non pros is subject to an abuse of discretion standard of review. Sklar v. Harleysville Insurance Co., 526 Pa. 617, 587 A.2d 1386 (1991); Martin v. Grandview Hospital, 373 Pa.Super. 369, 541 A.2d 361 (1988). In order to open a non pros judgment three factors must be satisfied: 1) the petition to open must be promptly filed; 2) the delay must be reasonably explained; and 3) facts must be shown to exist which support a cause of action. Id. Pa.R.C.P. 3051. There is no disagreement appellant’s petition to open judgment was timely filed. However, we must also address whether the inordinate amount of docket inactivity has been reasonably explained.

Appellant does not proffer an explanation for its failure to move forward, but instead avers the requisite two-year period after which judgment non pros can be entered had not passed. Because of the nature of this appeal, the specific facts of this case are immaterial while the procedural history is critical to appellant’s argument and we adopt as our own the trial court’s statement of the facts which follows:

The facts of this case indicate that on June 27, 1979, Plaintiff filed a Praecipe for Writ of Summons in Trespass, followed by a Complaint against Defendants on February 2, 1982. Prior to Plaintiffs filing Praecipe to Remove Case from Termination List on December 24, 1990, the last docket activity of any kind on this matter occurred when Plaintiff, on June 6, 1988, filed the Deposition of James F. Cawley, C.P.A.. Thus, prior to the Plaintiffs December of 1990 Praecipe, the last activity to occur in this matter happened when Plaintiff filed the Deposition of June 6,1988.

(Slip Op., Ruddock, J., 6/8/92, pp. 1-2.) The record thereafter indicates that on May 7, 1992, more than sixteen months after appellant’s December 24, 1990 praecipe to remove the case from the termination list, appellees petitioned for judgment non pros. Appellant argues non pros was erroneously entered because its December 24, 1990 praecipe began “a new two (2) year clock” and, therefore, the requisite two-year time period had not expired as of the appellees’ May 7, 1992 petition for non pros. We disagree.

In order to dismiss a case for lack of activity the movant must show 1) a party has failed to diligently proceed with reasonable promptitude; 2) there was no compelling reason for the delay; and 3) the delay has caused some prejudice to the adverse party, which will be presumed in actions in which the delay exceeds two years. Streidl, supra. These standards apply whether the motion is made by a party or by the court, sua sponte. Id. Moreover, it is the responsibility of the plaintiff to move a case forward. Penn Piping, Inc. v. INA, 529 Pa. 350, 603 A.2d 1006 (1992); Pennridge Elec. v. Souderton School, 419 Pa.Super. 201, 615 A.2d 95 (1992). Appellant’s December 24, 1990 petition was neither substantive in nature nor exemplary of the type of positive docket activity contemplated by this Court in Penn Piping. Accordingly, we agree with the trial court appellant’s praecipe did not preclude an entry of a judgment non pros based on inactivity exceeding two years.

Finally, appellant contends appellees’ failure to allege prejudice in their petition for non pros is fatal. However, because of our finding there was no docket activity for a time period exceeding two years, prejudice will be presumed and need not be averred or proven by the movant. See Penn Piping, supra.

Based on the foregoing discussion, we affirm the November 5, 1992 Order denying appellant’s petition to open judgment.

Order affirmed.

ROWLEY, P.J., concurs in the result.

      . RULE 1901. PROMPT DISPOSITION OF MATTERS; TERMINATION OF INACTIVE CASES
      (a) General Policy. It is the policy of the unified judicial system to bring each pending matter to a final conclusion as promptly as possible consistently with the character of the matter and the resources of the system. Where a matter has been inactive for an unreasonable period of time, the tribunal, on its own motion, shall enter an appropriate order terminating the matter,
      (b) Primary Responsibility for Implementation of Policy.
      (1) Each court of common pleas is primarily responsible for the implementation of the policy expressed in subdivision (a) of this rule and is directed to make local rules of court for such purposes applicable to the court to the community court or district justices of the peace of the judicial district.
      (2) the Philadelphia Municipal Court and the Traffic Court of Philadelphia are each directed to make rules of court for such purposes applicable to their respective courts.
      (c) Minimum Standards. Before any order terminating a matter on the ground of unreasonable inactivity is entered, the parties shall be given at least 30 days’ written notice of opportunity for hearing on such proposed termination, which notice shall be given:
      (1) In person or by mail to the last address of record of the parties or their counsel of record and setting forth a brief identification of the matter to be terminated; or
      (2) By publication in the manner provided by rule of court in the legal newspaper designated by rule of court for the publication of legal notices in any case where notice by mail cannot be given or has been returned undelivered or where the docket of the matter shows no evidence of activity during the previous two years. Any matter terminated after notice by publication pursuant to this paragraph may be reinstated by the court after dismissal upon written application for good cause shown.
      Pa.RJ.A. 1901.

      . We note with disfavor appellant’s failure to provide this Court with the complete Indiana County rule he alleges is applicable to the disposition of this case. Moreover, our review of Indiana locad rules failed to disclose support for appellant’s position.