author: TAMILIA, Judge: CAVANAUGH, Judge,

text:
    583 A.2d 1229
    COMMONWEALTH of Pennsylvania, Appellant, v. Aida L. ROSARIO.
    Superior Court of Pennsylvania.
    Submitted Oct. 24, 1990.
    Filed Dec. 19, 1990.

      Joan Weiner, Asst. Dist. Atty., Philadelphia, for Com.
    Helen McCaffrey, Philadelphia, for appellee.
    Before CAVANAUGH, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

This is the Commonwealth’s appeal from a judgment of sentence which departed downward from the sentencing guidelines. Following appellee’s conviction for the knowing possession and intent to distribute cocaine, she was sentenced to eleven and one-half (11V2) to twenty-three (23) months house arrest followed by thirty-six (36) months probation. The sentence stems from appellee’s nonjury conviction of running a cocaine distribution operation out of two row houses in Philadelphia.

On May 7, 1988, Philadelphia police received confidential information that a Hispanic female, known as “Lucy”, was conducting the aforesaid drug operation out of her 2840-2842 North Franklin Street homes. On the same date, undercover officers went to the vicinity of the houses and were approached by a Hispanic male exiting 2840. The unidentified male offered to sell them one-sixteenth of an ounce of cocaine. The unidentified male re-entered the 2842 home and returned with the cocaine and completed the illegal transaction. Based on this information, police executed a valid search warrant and raided appellee’s two row houses at 2840 and 2842 N. Franklin Street; 2840 served as a drug “sales” house, whereas 2842 was appellee’s “stash” house. Inside 2840, police found women’s clothing only, $280 cash on appellee’s bedroom dresser, drug paraphernalia in her bedroom and throughout the house, and 29 grams of cocaine with an estimated street value of $2,900. Drugs were found in dresser drawers reserved solely for the storage of appellee’s clothing, as well as in the kitchen area. The paraphernalia gave her the ability to grind, mix, weigh and package the cocaine for sale.

At trial, appellee introduced evidence attempting to infer that an unidentified man had been staying with her off and on for several months prior to the arrest. Appellee called Ms. Aurora Sosa and Larry Ulloa as defense witnesses. Sosa testified an unidentified man had been living or visiting with the appellee around the time of the search of her house (T.T., 5/31/89, pp. 57, 61). Ulloa stated, without identification or any specification, that a Hispanic male had been seen around the house at that time. Based on these scant assertions, appellee asked the court to go one step beyond and find that this phantom was her paramour, and had constructive possession of her house. On these inferences, the court was asked to infer the drugs and paraphernalia belonged to her unidentified friend. The court rejected this baseless defense and found appellee guilty beyond a reasonable doubt of violating 35 P.S. § 780-113.

Our studied review of the record satisfies us that there is a wealth of evidence to support the trial court’s finding appellee to be in constructive possession of the drugs and paraphernalia as well as to be operating a drug distribution operation out of her two North Franklin Street row homes. See Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983). However, in contradiction to its own rejection of the trial defense, the court imposed a lenient sentence, essentially ignoring the sentencing guidelines. The sentencing court portrayed appellee’s participation in the drug operation as peripheral and characterized her as a wholly submissive spectator to the drug operation carried out by her boyfriend. In making this finding, the court directly contradicted and ignored appellee’s own testimony as set forth in pertinent part below:

THE COURT: Ms. Rosario?
THE DEFENDANT: All I can say about all the trouble I got into, it taught me a lot.
THE COURT: Was he your boyfriend?
THE DEFENDANT: He was a friend of mines.
THE COURT: A close friend?
THE DEFENDANT: Not actually a boyfriend, but we used to see each other from time to time.
MS. MC CAFFREY: She is getting a little confused.
THE COURT: That is all right.
THE COURT: Did he live with you?
THE DEFENDANT: Yes, he was staying with me.
THE COURT: He stayed in the same bedroom with you?
THE DEFENDANT: Yes.
THE COURT: That is where the stuff was found, in the bedroom?
THE DEFENDANT: Yes.
THE COURT: You knew he was selling stuff, am I correct?
THE DEFENDANT: Yes, but—
THE COURT: Don’t lie to me.
THE DEFENDANT: I’m not lying.
THE COURT: You knew he was selling the stuff?
THE DEFENDANT: I worked two jobs. I don’t use drugs.
THE COURT: That is not the question. My question was, you knew he was selling drugs?
THE DEFENDANT: I didn’t know he had it in my house.
THE COURT: Where did you think he had it?
THE DEFENDANT: I thought he wouldn’t dare to do that in my home.
THE COURT: Where would he be doing it at, 2842, the house next door?
THE DEFENDANT: Yes.
THE COURT: Who lived in the house next door?
THE DEFENDANT: His friend.
THE COURT: You knew his friend was selling drugs?
THE DEFENDANT: There is a lot of things I know in the block, but I don’t get involved in that. I didn’t know he was bringing that stuff into my home.

(S.T., 5/31/89, pp. 7-9.) The dialogue showed the appellant to be inconsistent and defensive but established her guilty knowledge of the enterprise.

The judge’s determination must not be disturbed absent a manifest abuse of discretion. Commonwealth v. Edrington, 490 Pa. 251, 416 A.2d 455 (1980). An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence on the record, discretion is abused. Commonwealth v. Jackson, 336 Pa.Super. 609, 627, 486 A.2d 431, 441 (1984).

It is apparent that the legislature has vested broad discretion in the trial court to impose a sentence appropriate to each case which comes before it. It is also apparent the legislature has provided a thorough though not exhaustive outline of considerations to focus the court’s deliberations in choosing an appropriate sentence. It is only where a party can articulate reasons why a particular sentence raises doubts that this scheme as a whole has been compromised that the appellate court should review the manner in which the trial court exercised its discretion. Determination of whether the sentence is “not appropriate,” “clearly unreasonable,” or “unreasonable” must be made with reference to the sentencing code as a whole, not solely with reference to the sentencing guidelines. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); Commonwealth v. Darden, 366 Pa.Super. 597, 531 A.2d 1144 (1987). 42 Pa.C.S. § 9781(d).

Applying the abuse of discretion standard to the instant facts, we find the trial court erred. The evidence of record simply does not support the sentencing court’s finding. As indicated by her testimony, appellee not only denied involvement in the drug operation but also denied full knowledge of the drugs presence in her home. However, by finding appellee guilty of the crimes charged, the court necessarily found appellee to have possessed the cocaine with the requisite intent to distribute. At sentencing, the trial court impermissibly disregarded this adjudicated fact and improperly sentenced appellee to house arrest for a period of time far less than the suggested mitigated minimum time for incarceration. The trial court reasoned appellant had technically possessed the cocaine only by virtue of owning the house in which the drug operation was conducted, and by permitting herself to be ruled by her overbearing, live-in, drug dealing paramour. The sentencing court stated:

The court took into consideration that the defendant’s actions were peripheral, meaning that while she was not involved directly in the selling of the drugs, she was fully cognizant of the fact that drugs were around and she allowed them to be around in her house. The court did not believe that she was involved in the actual selling of drugs.

(Slip Op., Defino, J., 1/22/90, p. 3.)

If the rationale advanced by the sentencing court is correct, then the appellee should not have been convicted of possession with intent to distribute. Even under the sentencing rationale, as an accomplice, the court had, within the sentencing scheme provided by the guidelines, leeway to adjust the sentence in accordance with whether she was a central figure as opposed to one less directly involved. Accepting the sentencing court’s rationale for the imposition of sentence as stated supra, on the one hand requires a finding of guilt when none existed, or punishment, however lenient, for a crime not committed. If the evidence establishes beyond a reasonable doubt the commission of the crime, as it did, then the rationale for sentencing cannot be sustained and is, therefore, unreasonable.

We hold that once a party is found guilty, the adjudicated elements of the offense must be fully considered and cannot be disregarded when fashioning a sentence. Thus, the question of whether or not defendant was an innocent observer to the crimes committed in her house by someone else, was fully, fairly and finally decided against her at the time of trial. The sentencing court is not empowered to rewrite the script and cast defendant as a woman who merely owned a house in which the illegal activities for which she was convicted were actually being perpetrated by someone else. The sentencing court’s findings contradict the adjudicated facts which are necessary to the trial court’s arriving at a basis for its guilty finding. Therefore, the court abused its discretion when it departed below the guideline range and imposed a sentence of HV2 to 23 months house arrest for running a cocaine distributorship. The destructive character of such activity to the well being of society is so well documented as not to require further documentation here. To ignore the provisions established by law for controlling and hopefully deterring such behavior brings the judicial process into question and undermines the confidence of society in the judiciary, while bringing solace and encouragement to the drug peddlers.

Judgment of sentence reversed and case remanded for resentencing within the applicable guideline range.

Jurisdiction relinquished.

Dissenting opinion by CAVANAUGH, J.

CAVANAUGH, Judge,

dissenting.

I must respectfully dissent.

I begin by noting that no brief has been filed on behalf of the appellee. Court records indicate that all efforts of the prothonotary of this court and the Commonwealth to contact appellee’s attorney of record have failed, and apparently the appellee herself is unaware of the whereabouts of her attorney. As such, I can only conclude that counsel has abandoned representation of her client.

In doing so, counsel for the appellee has failed to comply with the requirements regarding withdrawal of counsel as set forth historically in Commonwealth v. Palmer, 455 Pa. 111, 314 A.2d 853 (1974), and no waiver of the right to counsel has been shown, as required by Commonwealth v. Collins, 295 Pa.Super. 380, 383, 441 A.2d 1283, 1284 (1982) (citations omitted).

Additionally, even if this were a collateral appeal which did not involve the strict requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) rehrg. denied at 388 U.S. 924, 87 S.Ct. 2094, 18 L.Ed.2d 1377, we would be required to review counsel's explanation of a no-merit letter if one were submitted. See Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988).

My review of the extraordinary posture of this appeal leads me to conclude that the abandonment of representation of the appellee has worked to her serious prejudice. I would therefore hold that this case must be remanded for the appointment of counsel or to allow appellee to hire new counsel if she is in a position to do so. In so concluding, I note that the Commonwealth in this matter has filed an appeal and even though there is no appellee’s brief, sought and obtained permission to present a “reply brief”. Moreover, it appears to me that the Commonwealth has chosen to couch its appeal in language characterized by an ad hominum attack on the trial judge. The majority result will be particularly devastating to the appellee since she undoubtedly will not learn of the majority’s mandate until she is summoned for resentencing presumably to face a penitentiary sentence now that her county sentence has been vacated as inadequate. Furthermore, I believe the majority’s disposition eradicates the trial judge’s traditional powers of lenity and compassion which our court should reserve for the discretion of the trial judges who have firsthand knowledge of and exposure to convicted defendants.

Secondly, I note that the majority disposition fails to give due deference to the mandates of Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). See also Commonwealth v. Fenton, 388 Pa.Super. 538, 566 A.2d 260 (1989).

Finally, appellate counsel could argue the effect of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), since this is an appeal from the discretionary aspect of sentencing. Our court has not hesitated to dismiss such appeals when they fail to state substantial grounds for consideration of the appeal. See, e.g., Commonwealth v. Blair, 394 Pa.Super. 207, 575 A.2d 593 (1990), and Commonwealth v. Smith, 394 Pa.Super. 164, 575 A.2d 150 (1990).

Since I feel that the majority disposition seriously compromises the appellee’s rights I would remand for a hearing on representation and with directions to provide for counsel under the proper circumstances.

      . The trial court did not specify conditions or restrictions on appellee’s movement, but rather relinquished that duty to the discretion of the probation department's intensive supervision program. The court did find drug treatment with random urine analysis necessary as a condition of the sentence.

      . Neither Sosa nor Ulloa testified that the unidentified man was a boyfriend or lover. The sentencing court made this finding on its own. In fact, Ulloa testified that the man was a renter whereas Sosa stated that she did not "know nothing about [appellee’s] personal life.” (T.T., 3/31/89, p. 61.)

      . With appellant’s prior record score of two and an offense gravity score of "E” for an offense under subsection (a)(30) of the Controlled Substance, Drug, Device and Cosmetic Act and involving over two grams of cocaine (here, 29 grams), the sentencing guidelines Eire as follows: mitigated, 21-27 months; standard, 27-39 months; and aggravated, 39-45 months. 204 Pa.Code Ch. 303, § 303.9.

      . We note that appellee, in apparent satisfaction with the sentence entered in the trial court, did not consider it necessary to file an appellate brief with this Court.


source: Caselaw Access Project

author: HUDOCK, Judge:

license: Public Domain

text:
    583 A.2d 1234
    COMMONWEALTH of Pennsylvania, Appellee, v. Ronald J. LEHR, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 1, 1990.
    Filed Dec. 27, 1990.

      Ronald J. Lehr, pro se.
    William H. Platt, Dist. Atty., Allentown, for Com.
    Before CAVANAUGH, HUDOCK and HESTER, JJ.
   HUDOCK, Judge:

At the conclusion of a jury trial, the appellant was found guilty of homicide by vehicle while under the influence, homicide by vehicle, two counts of driving under the influence, and a related summary offense. Timely filed post-verdict motions were denied and the appellant was sentenced to three to seven years imprisonment for the homicide by vehicle charge; a consecutive sentence of ninety days to twenty-three months was imposed on the driving under the influence charges. A timely filed motion seeking reconsideration of sentence was denied. No direct appeal was taken from the judgment of sentence. Thereafter, the appellant filed a petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541, et seq. Relief was denied after an evidentiary hearing was held on the appellant’s petition. This appeal followed.

Instantly, the appellant presents the following fourteen issues for our review:

1. Defendant was improperly sentenced on both the charge of homicide by vehicle while under the Influence[sic] of Alcohol and consecutive sentence for Driving under the Influence of Alcohol.
2. The court allowed testimony as to the use of Vascar without certification of the police officer and the police officer testified that the higest[sic] speed on his speedometer, when floored, which was relevant.
3. The Court allowed the use of a video sobriety test which included oral testimony to which the defendant had not consented.
4. the[sic] Court improperly admitted evidence concerning the testing by the Laboratory of the defendant!s[sic] blood alcohol content. the[sic] laboratory was not approved until February 1986, after the accident from which stemmed the charges against the defendant.
5. The court improperly allowed expert opinion that the defendant!s[sic] vehicle was the sole cause of the accident, by allowing the expert to testify as he did concerning which vehicle was the sole cause of the accident.
6. Defense Counsel failed to ask the expert about the oil and marks upon the road way[sic] on cross examination.[sic]
7. The Court erred in refusing to allow accident[sic] report to be viewed by the Jury.
8. At the supression [sic] hearing, defense counsel never introduced the mirror and post to show the state of defendant!s[sic] consciousness based on his Injuries[sic].
9. The attorney for the defendant never explained possible sentences or any plea bargain offers to the defendant.
10. Trial counsel failed to interview or call Dr. Rohbach as a witness although requested to do so by the defendant.
11. Defense counse,[sic] although requested, failed to call Llyod[sic] Ohl to testify concerning damages to the vehicle and chacter[sic] of the victim.
12. Defendant was threatened by his own attorney that if Mr. Ohl were called to testify as to the chacaterfsic] of the victim the prosecution would bring in Mrs[.] Miller concerning the defendant!s[sic] drinking habits.
13. Counsel for the defendant failed to file complete post-trial motions.
14. Counsel for the defendant failed to appeal to the Superior Court.

Brief for appellant, at “D”. We begin our analysis with the last issue raised by the appellant, the failure of counsel to appeal his conviction.

To be eligible for relief under the PCRA, the petitioner must plead and prove:

(3) That the allegation of error has not been previously litigated and one of the following applies:
(i) The allegation of error has not been waived.
(ii) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual.
(iii) If the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a State procedural default barring Federal habeas corpus relief.

42 Pa.C.S.A. § 9543(a)(3).

Ordinarily, absent extraordinary circumstances, the failure to file a direct appeal from a judgment of sentence amounts to waiver of any claim which could have been raised in such an appeal, thereby precluding collateral relief. Now, in an attempt to circumvent the consequences of his failure to appeal from the judgment of sentence imposed upon him, the appellant alleges that counsel was ineffective for failing to file and pursue a direct appeal. To successfully avoid a finding of waiver, the appellant “must prove that he requested an appeal and that counsel disregarded the request.” Commonwealth v. Hudson, 336 Pa.Super. 174, 178, 485 A.2d 487, 489 (1984).

At the evidentiary hearing, the appellant testified that following the sentencing proceeding stemming from his motion for reconsideration, he specifically requested counsel to file an appeal. This was contradicted by sentencing counsel who testified that after sentence was imposed, he inquired of the appellant whether or not he wanted to appeal. The appellant replied in the negative. Despite this, sentencing counsel filed a motion seeking reconsideration of sentence which was ultimately denied without a hearing. Subsequent to sentencing, counsel received two letters from the appellant; neither letter requested an appeal. The PCRA court, apparently crediting counsel’s testimony, concluded that “[t]here is simply no basis to fault [counsel].” (PCRA Court opinion, at 10.) Matters of credibility are vested in the sound discretion of the trier of fact, in this case the PCRA court. We will not attempt to re-evaluate such matters on appeal. Thus, because the appellant has failed in meeting his burden of showing that he requested an appeal and that counsel disregarded the request, the issues presented instantly, with the exception of the first issue, are deemed waived.

The first issue raised by the appellant concerns the propriety of his sentence, which we view as concerning the legality of the sentence. The legality of a sentence is a matter which cannot be waived. Indeed, if a person pleads and proves that their sentence resulted from the imposition of a sentence greater than the lawful maximum, they are eligible for relief under the terms of the PCRA. 42 Pa.C. S.A. § 9543(a)(2)(vii). In Commonwealth v. Voshall, 387 Pa.Super. 47, 563 A.2d 936 (1989), allocatur granted, 525 Pa. 599, 575 A.2d 565 (1990), this Court found that the offense of driving under the influence merged with the crime of homicide by vehicle while driving under the influence. In light of this decision, we find the appellant is eligible for post-conviction relief. Accordingly, it is necessary to vacate only the judgment of sentence imposed for driving under the influence (ninety days to twenty-three months).

The order is reversed in part and affirmed in part. The judgment of sentence imposed for driving under the influence only is . vacated. Jurisdiction is relinquished.

      . The appellant’s trial counsel was granted leave to withdraw after post-verdict motions were filed, but prior to the court en banc denying the same. Sentencing counsel was replaced by PCRA counsel. The appellant appears before this Court pro se.

      . Counsel also testified that prior to the sentencing proceeding, he and the appellant discussed the applicable mandatory sentence and the avenues of appeal that would be available following imposition of sentence.


author: KELLY, Judge:

text:
    583 A.2d 1236
    Lisle Ann JACKSON, Appellant, v. Lowell R. CULP, Appellee.
    Superior Court of Pennsylvania.
    Argued April 3, 1990.
    Filed Dec. 27, 1990.

      Gregory H. Chelak, Chambersburg, for appellant.
    John J. Hovan, Tunkhannock, for appellee.
    Before McEWEN, MONTEMUEO and KELLY, JJ.
   KELLY, Judge:

In this case we address procedural issues regarding a pre-1988, unmerged marital settlement agreement (MSA) and the proper mode of enforcement for such an agreement. We find the proceedings in the instant case severally flawed, and vacate the order entered by the trial court.

The facts and procedural history are as follows. Lisle and Lowell were divorced in Wyoming County on August 9, 1984. They had no children. Prior to the divorce, the parties entered a Marital Settlement Agreement (MSA) which provided for distribution of their property and payment of alimony to Lisle. The agreement was signed on March 5, 1984. Lowell failed to make the agreed upon monthly payments beginning August 1985. Lisle then filed a civil contempt petition against Lowell in Wyoming County on July 13, 1989. In response Lowell brought a petition under the Pennsylvania Divorce Code attacking the validity of the Marital Settlement Agreement. The Wyoming County Common Pleas Court treated Lowell’s petition as a petition for modification of a support order. Pursuant to the Divorce Code, 23 P.S. § 507, the trial court denied Lisle any further alimony effective January 1, 1988. Lisle then brought this timely appeal.

Lowell and Lisle entered into a MSA on March 5, 1984 in anticipation of their subsequent divorce. The decree of divorce entered August 9, 1984 incorporated the MSA but did not mention merger. The issue of merger at this juncture was integral to the parties future rights under the MSA and the Divorce Code in existence at that time and, ultimately, to their rights under the Divorce Code as amended in 1988.

In Pennsylvania, a settlement agreement between a husband and wife is governed by the law of contracts unless the agreement itself provides otherwise. Caccavo v. Caccavo, 388 Pa.Super. 459, 565 A.2d 1199 (1989); Sonder v. Sonder, 378 Pa.Super. 474, 549 A.2d 155 (1988); Vankirk v. Vankirk, 336 Pa.Super. 502, 485 A.2d 1194 (1984); Litwack v. Litwack, 289 Pa.Super. 405, 433 A.2d 514 (1981). Hence, when the language of such an agreement is clear and unambiguous, the focus of the interpretation must be upon the terms as manifestly expressed. Caccavo, supra, 565 A.2d at 1202.

Our review of the MSA revealed its language to be clear and unambiguous in unequivocally evincing the parties intent that the “agreement shall survive an action for divorce and decree of divorce and shall forever be binding and conclusive on the parties” and “no modification or waiver of any of the terms hereof shall be valid unless in writing and signed by both parties” (emphasis added) (MSA items 3, 13). Lowell and Lisle’s MSA, by its own terms, was a contract separate and independent of the divorce decree and enforceable under assumpsit and equity principles rather than under the Divorce Code until 1988. The 1988 Amendment to the Divorce Code allows enforcement but not modification of an unmerged MSA under the Code. See 23 P.S. § 401.1(b) and (c). Cf. DeMatteis v. DeMatteis, 399 Pa.Super. 421, 582 A.2d 666 (1990).

We find no anomoly in applying the enforcement procedures provided by the 1988 Amendment to a pre-1988 MSA while refusing to apply other provisions of the Amendment which would involve a change in obligations of the parties. The language of the parties’ MSA specifically provided for a modification procedure but did not specify a particular manner of enforcement. Prior to the 1988 Amendments there was no provision for enforcement of nonmodifiable, unmerged MSA’s under the Divorce Code, and so an action in assumpsit was used as in any other contract action. The 1988 Amendment does not preclude a complaint in assumpsit; it merely facilitates enforcement of the MSA by providing an alternative enforcement vehicle in the form of civil contempt complaint. The amendment neither adds to nor subtracts from the substantive rights of the parties under their MSA; rather, it merely provides an additional procedural vehicle for the enforcement of their respective rights under their MSA.

Originally, when Lowell stopped making payments as required by the MSA, Lisle properly brought a complaint in assumpsit to enforce the contract with Lowell. We do not have the records or even the docket entries from the assumpsit action, which was brought in Lackawanna County. Assuming, arguendo, Lisle’s complaint filed in Wyoming County is an accurate report of the proceedings in Lackawanna County, default judgment was entered against Lowell when he failed to respond to the complaint filed against him pursuant to Pa.R.C.P. 1037. We will assume that entry of judgment in Lackawanna County was procedurally correct. Assuming Lowell failed to comply with the directive of the Lackawanna County court further enforcement action could then have been pursued by Lisle in Lackawanna County. Lisle, however, did not elect to pursue the Lackawanna County judgment further.

Lisle instead brought a complaint in civil contempt against Lowell in Wyoming County pursuant to the powers of enforcement provided in Section 401(b) of the Divorce Code effective February 12, 1988. Under Section 401.1(a), enforcement of a non-merged MSA under the provisions of the Code is permitted “to the same extent as though the agreement had been an order of the court except as provided to the contrary in the agreement." There is no contrary provision in their MSA; accordingly, the original MSA between Lowell and Lisle which specifically provided for modification only by written agreement between the parties could be enforced but not modified under the provisions of the Divorce Code.

Lowell’s response to the civil contempt complaint was to attack the validity of the original MSA under Section 401 of the Divorce Code by seeking invalidation of the agreement and/or termination of his alimony obligation. The issue of the validity of the MSA, however, was decided finally when it was originally incorporated in the divorce decree. Because no appeal asserting fraud or mistake in the execution of the MSA was taken from the divorce decree, the MSA must be deemed to be valid, and the validity of the MSA must be deemed finally determined for purposes of any further proceeding. Sonder, supra, 378 Pa.Superior Ct. 481-483, 549 A.2d at 159 (1988); Litwack, supra, 289 Pa.Superior Ct. 409, 433 A.2d at 516 (1981).

Consequently, the Wyoming County court erred when it treated Lowell’s response to Lisle’s complaint as a petition for modification of a support order. As explained supra, there was no support order in existence; there was only a contract between Lisle and Lowell subject to either judgment and execution as a contract, or special enforcement authorized under the 1988 amendments to the Divorce Code.

The terms of the contract provide for cessation of the agreed upon alimony only on Lisle’s “remarriage.” The trial court stopped Lisle’s support because she was “cohabiting” with a man. That determination, however, necessarily entailed an impermissible modification of the terms of the original MSA. Had Lowell wanted to stop paying alimony if Lisle began to “cohabitate” with another man, that could have been made part of the original MSA. We do not find the term “remarriage” sufficiently ambiguous to embrace “cohabitation”, standing by itself. There must be, at the least, evidence of cohabitation and reputation of marriage to give rise to the presumption that a common law marriage has been entered into. Canute v. Canute, 384 Pa.Super. 60, 557 A.2d 772 (1989). We note that if the “cohabitation” in this case later evolved into a common law marriage, the remarriage clause might then be triggered. As it was not at the time of the proceedings in the trial court, that court was constrained to enforce the MSA as written, and could not properly modify its terms.

Conclusion

Based on the foregoing, the Wyoming County order is Vacated. The case is remanded to Wyoming County for action on Lisle’s petition for civil contempt and enforcement of the MSA as written in accordance with the Divorce Code. Jurisdiction is relinquished.


text:
    583 A. 2d 1239
    COMMONWEALTH of Pennsylvania, Appellee, v. William K. BOWMAN, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 7, 1990.
    Filed Dec. 21, 1990.

      William F. Cercone, Jr., Pittsburgh, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com.
    Before DEL SOLE, BECK and HUDOCK, JJ.
   HUDOCK, Judge:

The Appellant was charged with one count of Accidents Involving Death or Personal Injury, 75 Pa.C.S.A. § 3742(a) and (b)(2), and Duty to Give Information and Render Aid, 75 Pa.C.S.A. § 3744, commonly known as leaving the scene of an accident, and one count of Driving While Operating Privilege is Suspended or Revoked, 75 Pa.C.S.A. § 1543(a) and (b). Appellant proceeded to a trial by jury on the first two charges, and the third charge, being a summary offense, was decided by the trial judge alone. Appellant was convicted of all charges.

In this appeal Appellant raises two issues:

1. Whether the trial court violated the Appellant’s privilege against self-incrimination by reversing a pre-trial ruling excluding any evidence concerning the suspension of the Appellant’s operating privileges; and
2. Whether the trial court erred in denying Appellant’s counsel’s request for a mistrial due to the prosecutor’s question to the Appellant regarding his license suspension.

Because we believe that a mistrial should have been granted when the prosecutor questioned the Appellant regarding prior license suspensions, we reverse the trial court.

The incident giving rise to the charges arose when one Arthur Wolf, while crossing Beers School Road in Moon Township, Allegheny County, was struck by an automobile. Appellant admitted driving the vehicle, but contended that, while he thought he struck a pothole or a bird or animal, he was unaware that he had struck a human being. He acknowledged leaving the scene. At the time of the accident, the Appellant’s operator’s license had been suspended, and initially the court ruled that since the charge of driving while operating privileges were suspended would not be decided by the jury, it would be improper to introduce this fact before the jury. After the Commonwealth rested, however, and before the defense began, the court, sua sponte, announced that it had reconsidered its ruling. The court advised both counsel that the fact that Appellant had no operating privileges at the time of the accident might become relevant as a motive for his fleeing the scene. In spite of this indication by the court that it would reconsider its prior ruling, the defendant took the witness stand and on cross-examination was asked: “Did you know or think that you hit a person?”. Defendant responded: “I did not. I would have stopped. I had no reason to not stop”. (N.T. 118). In view of this answer by Appellant, the court then permitted the prosecutor to inquire about Appellant’s license suspension. The prosecutor, on re-cross examination, went further and asked Appellant: “Would you also consider it, would I be fair in saying it is quite a mistake to have your license suspended eight times since 1981?” (N.T. 155). Counsel for Appellant objected and asked for a mistrial, which was denied. Because of various side-bar discussions, the court directed the court reporter on two occasions to read back the original question regarding these prior license suspensions. Appellant answered: “I am not quite sure if you are accurate on everything you say there. Things are pending on this”. (N.T. 159).

We believe the trial court erred in not granting the mistrial under the circumstances. In its opinion denying post-verdict motions, the court believed that the evidence of Appellant’s guilt was so overwhelming that the question of the prosecutor did not deny him a fair trial. The Commonwealth argues that same position before us.

While the evidence was overwhelming that the Appellant was the driver of the vehicle which struck the victim, and that the vehicle left the scene of the accident, Appellant contended that he was unaware that he struck a human being. In fact, the two witnesses in his vehicle also testified that while they were aware of a loud noise, they, too, were unaware that a person had been struck. Appellant’s credibility as to his knowledge, therefore, was a critical issue in the case.

Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987) allows the introduction of prior convictions of crimen falsi to impeach a witness where the convictions occurred within ten years of the date of the incident, for which the defendant is on trial. Since the offenses of driving under suspension are not crimes of crimen falsi, their introduction into evidence ordinarily would not be permitted. Nor would the prior convictions be admissible under the motive, intent, common scheme, identity, accident or lack of mistake exceptions as noted in Commonwealth v. Brown, 489 Pa. 285, 414 A.2d 70 (1980). While the fact that the Appellant was under suspension at the time of the accident could establish a motive for his fleeing the scene of the accident, the same cannot be said for various other license suspensions since 1981. Any connection is too tenuous. We believe it was error to permit the question and answer, and the trial court and the Commonwealth in this appeal seemed to reluctantly acknowledge that, contending the error, however, was harmless.

We now turn to the question of whether the error was harmless. Pursuant to the teaching of' Commonwealth v. Williams, 524 Pa. 404, 578 A.2d 536 (1990) the burden of proving that the error was harmless is on the Commonwealth.

Error is considered to be harmless where:

(1) The error did not prejudice the defendant or the prejudice was de minimis; or
(2) The erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or
(3) The properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict

Commonwealth v. Williams, at 407, 573 A.2d at 538.

We are unable to say, beyond a reasonable doubt, that the improper questioning regarding eight different license suspensions since 1981 was de minimis. Nor are we able to say that the properly admitted evidence of guilt was so overwhelming that the error could not have contributed to the verdict because here, as In Williams, the properly admitted evidence of guilt was not uncontradicted. the properly admitted evidence of guilt must be uncontradicted for error to be held harmless beyond a reasonable doubt”. Commonwealth v. Williams, at 411, 578 A.2d at 539. The testimony of Appellant, and the witnesses in Ms vehicle, contradicted the circumstantial evidence of the Commonwealth tending to shpw that Appellant knew he had struck a human being.

In view of our disposition of the matter, it is unnecessary to decide the first issue raised by Appellant.

The judgment of sentence is vacated, and the case is remanded for a new trial. Jurisdiction relinquished.


author: WIEAND, Judge:

text:
    583 A.2d 1242
    AMERICAN TRUCK LEASING, INC., American Truck Lines, Inc., Appellants, v. THORNE EQUIPMENT COMPANY, City of Philadelphia, Department of Licenses and Inspections, Joseph A. Tartaglia, Jatco, Inc., Barney Gross and Dorothy Gross, Appellees.
    Superior Court of Pennsylvania.
    Submitted Nov. 7, 1990.
    Filed Jan. 4, 1991.

      Kenneth W. Richmond, Philadelphia, for appellants.
    Jacqueline M. Carolan, Philadelphia, for Thorne Equipment, appellee.
    Norman G. Prajzner, Asst. City Sol., Philadelphia, for City of Philadelphia, appellee.
    Thomas J. Barnes, Philadelphia, for Tartaglia, appellee.
    Dante Mattioni, Philadelphia, for Gross, appellees.
    Before WIEAND, KELLY and CERCONE, JJ.
   WIEAND, Judge:

In this case, the trial court determined as a matter of law that a property owner’s alleged negligence, even if proved, was not a substantial factor in causing the plaintiff’s loss. Therefore, the court sustained preliminary objections in the nature of a demurrer to those counts of the plaintiff’s complaint which asserted liability on the part of the property owner. After careful review, we affirm.

Dorothy Gross was the owner of a vacant building at Nos. 1758-1762 North Front Street, Philadelphia. On June 27, 1988, between 1:30 and 2:30 a.m., a fire started in combustible trash and debris which had been allowed to accumulate on the premises. The fire spread across a narrow street and damaged premises at Nos. 105-109 West Palmer Street, which premises were owned by Joseph A. Tartaglia and occupied for business purposes by JATCO, Inc. The fire burned for more than eight hours before being extinguished. Pursuant to a determination made by the City of Philadelphia, Thorne Equipment was engaged thereafter to demolish a six story elevator shaft on Tartaglia’s land. This elevator shaft, although still standing, had been damaged by the fire. Thorne Equipment began its demolition work on June 28, 1988, but during the course thereof a portion of the elevator shaft fell upon and damaged buildings and vehicles owned by the plaintiffs, American Truck Lines, Inc. and American Truck Leasing, Inc. (American). American thereafter filed a civil action against Thorne Equipment, the City of Philadelphia, Tartaglia, JAT-CO, Inc. and Dorothy Gross. All claims remain undetermined in the trial court except the claim against Dorothy Gross, which has been summarily dismissed.

American alleged in its complaint that Gross had been negligent by allowing combustible trash and debris to accumulate on her property and in otherwise failing to exercise care to prevent the occurrence of a fire. That negligence, if it existed, would be a legal cause of American’s harm only if it could be shown to be a substantial factor in bringing about such harm. Restatement (Second) of Torts § 431. See: Whitner v. Von Hintz, 437 Pa. 448, 263 A.2d 889 (1970); Takach v. B.M. Root Co., 279 Pa.Super. 167, 420 A.2d 1084 (1980). Factors to be considered in determining whether an act is a substantial factor in bringing about harm to another are enumerated in Restatement (Second) of Torts § 433 as follows:

The following considerations are in themselves or in combination with one another important in determining whether the actor’s conduct is a substantial factor in bringing about harm to another:
(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it;
(b) whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible;
(c) lapse of time.

When these considerations are applied to the facts of the instant case, they demonstrate that even if Dorothy Gross had been negligent in allowing combustible trash to accumulate on her property, such accumulation was too far removed factually and chronologically from American’s harm to be a legal cause thereof. Gross’s negligence was passive and harmless until acted upon by an independent force. Moreover, the fire which erupted on her property was extinguished before any harm had occurred to American. The negligence for which she was responsible, if any, was not in active operation at the time when damages were caused to American’s property. Those damages were caused on the day following the fire because of the manner in which the fire weakened elevator shaft was demolished by Thorne Equipment. Because the negligent accumulation of combustible trash was too far removed from the damages to American’s property and because those damages were caused by the intervening act of the demolition contractor, it cannot be said legally or factually that the alleged negligence of Dorothy Gross was a substantial factor in causing harm to American.

In Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977), the Supreme Court held that it was for the jury to determine whether a property owner’s negligence in maintaining his property in a state of disrepair was a substantial factor in causing the harm to a neighbor’s property damaged by fire originating on the original owner’s property. In the instant case, however, American’s property damage was not caused by a spreading fire. It was caused, rather, by the demolition of a fire damaged grain elevator after the fire had been extinguished. This demolition constituted an independent agency. We conclude, therefore, that the trial court correctly determined that Dorothy Gross, as a matter of law, was not legally responsible for appellant’s harm.

Affirmed.


author: PER CURIAM:

text:
    583 A.2d 1244
    Thomas R. HOUCK and Sandra G. Houck, h/w, Appellants, v. SAMUEL GELTMAN & CO., t/a and d/b/a Allen Garden Apartments, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1990.
    Filed Jan. 4, 1991.
    William E. Ford, Allentown, for appellants.
    Janet W. Mason, Philadelphia, for appellee.

      Before WIEANB, KELLY and CERCONE, JJ.
   PER CURIAM:

This is an appeal from an order entering summary judgment in favor of a defendant landowner who allegedly failed to protect his invitee from a dangerous condition existing on adjacent land. After careful review, we affirm.

On June 16, 1986, at or about 12:30 a.m., Thomas R. Houck, an Allentown policeman, responded to a complaint that trespassers were in the swimming pool at Allen Garden Apartments, an apartment complex managed by Samuel Geltman & Company. Upon arrival, Houck observed and pursued several individuals as they ran from the pool and entered a wooded area on adjoining land. When Houck entered the woodland with his flashlight, he tripped and fell down a sharp incline or slope, sustaining injuries to his nose and head. In response to a request for admissions, he conceded that the fall had occurred on adjoining land and not on land owned by the defendant.

A motion for summary judgment may properly be granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). See also: Rybas v. Wapner, 311 Pa.Super. 50, 54, 457 A.2d 108, 109 (1983); Williams v. Pilgrim Life Insurance Co., 306 Pa.Super. 170, 172, 452 A.2d 269, 270 (1982) . In passing upon a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 82-83, 468 A.2d 468, 470 (1983); Zimmerman v. Zimmerman, 322 Pa.Super. 121, 124-125, 469 A.2d 212, 213 (1983) ; Wilk v. Haus, 313 Pa.Super. 479, 482, 460 A.2d 288, 289-290 (1983). It is not part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried. Wilk v. Haus, supra at 482, 460 A.2d at 290; Tom Morello Construction Co. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 334, 421 A.2d 747, 750 (1980). Any doubt must be resolved against the moving party. Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982); First Pennsylvania Bank, N.A. v. Triester, 251 Pa.Super. 372, 378, 380 A.2d 826, 829 (1977).

Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140-141, 476 A.2d 928, 930-931 (1984). In the instant case, the facts are not in dispute. The only issue remaining to be decided, therefore, is whether the trial court properly held that the defendant was entitled to judgment as a matter of law.

“[I]t is well settled that the law imposes no duty upon a possessor of adjacent land to erect fencing or provide warnings so as to deter persons from entering a third party’s property on which there exists a dangerous condition not created or maintained by the landowner and over which the landowner has no control.” Scarborough v. Lewis, 523 Pa. 30, 39, 565 A.2d 122, 126 (1989). See: Heller v. Consolidated Rail Corp., 576 F.Supp. 6 (E.D.Pa.1982), aff'd, 720 F.2d 662 (3d Cir.1983); Cousins v. Yaeger, 394 F.Supp. 595 (E.D.Pa.1975); Lynch v. National Railroad Passenger Corp., 115 Pa.Cmwlth. 474, 540 A.2d 635 (1988), aff'd, 524 Pa. 445, 573 A.2d 1016 (1990); Kearns v. Rollins Outdoor Advertising, Inc., 89 Pa.Cmwlth. 596, 492 A.2d 1204 (1985). It is clear in this case that the defendant-appellee did not create the slope or incline which existed on the neighboring land. The condition, rather, was a natural condition over which appellee had no control. Under these circumstances, there was no duty to enclose defendant’s land by fencing or to warn persons leaving appellee’s land that a slope or incline existed on the adjoining land. Because there was no such duty, appellee was entitled to judgment as a matter of law.

The order entering summary judgment is affirmed.


author: HOFFMAN, Judge:

text:
    583 A.2d 1245
    COMMONWEALTH of Pennsylvania Appellant, v. Carl Eugene HAMME.
    Superior Court of Pennsylvania.
    Argued Oct. 3, 1990.
    Decided Dec. 13, 1990.

      Gerald A. Lord, Asst. Dist. Atty., York, for Com., appellant.
    Harold N. Fitzkee, Jr., York, for appellee.
    Before OLSZEWSKI, BECK and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from an order granting appellee’s motion to quash. Appellant, the Commonwealth, contends that the court below erred in suppressing certain evidence and granting the motion. For the following reasons, we agree, and accordingly, we reverse the order below and remand for trial.

The facts surrounding appellee’s arrest, viewed in the light most favorable to appellee, are as follows. On October 27, 1989, Officer Hinds of the West Manchester Police Department was traveling through West York Borough when he observed a vehicle, driven by appellee, exiting a parking lot. Officer Hinds swerved his patrol car in order to avoid a collision with this vehicle. He then observed appellee back the vehicle into the parking lot, and appellee park the vehicle. Appellee exited his vehicle and headed toward the Overbrook Cafe. Officer Hinds then contacted the West York Borough Police Department, and Officer Strickler of that Department arrived at the scene. Based on information he received from Officer Hinds, Officer Strickler spoke to appellee, who had returned to the parking lot, and appellee admitted to driving the vehicle in question. The officer detected an odor of alcohol on appellee’s breath and administered a field sobriety test to appellee. After appellee failed the test, Officer Strickler arrested him and charged him with driving under the influence of alcohol. See 75 Pa.C.S.A. § 3731.

On January 8, 1990, appellee filed a motion to quash seeking to have the charges against him dismissed. This motion was notable for the narrowness of its scope. Appellee argued that based on the information the arresting officer obtained through his own observations, the officer had no authority to make a warrantless arrest. It was on these grounds alone that appellee requested the charges against him be dismissed. At a hearing on January 25, 1990, the court heard testimony concerning the circumstances leading to appellee’s arrest. The court then entered an order suppressing the evidence because it found that there was no probable cause to arrest appellee. Thereafter, the court granted appellee’s motion to quash. Although the court did not state the reason for the quashal, it apparently concluded that, absent the suppressed evidence, there was no prima facie case against appellee. The Commonwealth’s timely appeal followed.

In its ruling, the court below opined that the information communicated to Officer Striekler by Officer Hinds—that he was forced to swerve in order to avoid a collision—did not establish probable cause to arrest as a matter of law. Subsequently, the court continued, appellee’s failure of the field sobriety test did not justify an arrest. Thus, the court suppressed the evidence gathered by Officer Striekler and granted appellee’s motion to quash.

The Commonwealth contends that the court below improperly concluded, as a matter of law, that the arresting officer’s actions were unlawful. Specifically, the Commonwealth argues that the arresting officer initially had a reasonable suspicion to briefly detain appellee and that said suspicion developed into probable cause during the stop, whereupon he could legally arrest appellee. The evidence resulting from the seizure, therefore, was properly obtained. We agree.

A police officer may stop and briefly detain an individual if the officer has a reasonable suspicion, based on specific and articulable facts, that criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969); Commonwealth v. Espada, 364 Pa.Super. 604, 528 A.2d 968 (1987). Also, we have held that erratic driving provides a sufficient, reasonable basis to support an investigatory stop. Commonwealth v. Lymph, 372 Pa.Super 97, 100-101, 538 A.2d 1368, 1370 (1988) (citations omitted). Moreover, officers who have not witnessed first-hand erratic driving or accidents, but have received information from other officers or citizen witnesses and later personally observed the accused, were held to have sufficient probable cause to make an arrest. See Commonwealth v. Levesque, 469 Pa. 118, 364 A.2d 932 (1976); Commonwealth v. Guerry, 469 Pa. 20, 364 A.2d 700 (1976). See also 75 Pa.C.S.A. § 3731(c) (police officer may make warrantless arrest of person “who the officer has probable cause to believe has violated the provisions of this section, regardless of whether the alleged violation was committed in the presence of such officer”); R. Wasserbly, 1 Pennsylvania Criminal Practice § 6.07 (1981 & Supp.1990); Commonwealth v. Janiak, 368 Pa.Super. 626, 534 A.2d 833 (1987).

In the instant case, Officer Strickler had an articula-' ble and reasonable suspicion so that he could briefly detain appellee based upon Officer Hinds’s report of appellee’s erratic driving. See Commonwealth v. Lymph, supra; Commonwealth v. Levesque, supra. Thus, contrary to the finding by the court below, Officer Strickler had sufficient information to justify an investigatory stop. Once he arrived at the scene, according to the officer’s uncontradicted testimony, appellee approached him whereupon he detected an odor of alcohol on appellee’s breath. See N.T. January 25,1990 at 12. Appellee also admitted to the officer that he had been driving the vehicle in question. We note that there is no evidence that, at this time, appellee was under arrest. It was not until after Officer Strickler conducted field sobriety tests, which appellee failed, that he placed appellee under arrest. At the time of arrest, based on both the initial information he received and his own personal observations, the officer had probable cause to arrest appellee for driving under the influence. See Commonwealth v. Monaghan, 295 Pa.Super. 450, 441 A.2d 1318 (1982) (probable cause exists where officer knew tow-truck driver had operated truck short time before and driver now appeared to be inebriated); Commonwealth v. Benson, 280 Pa.Super. 20, 421 A.2d 383 (1980) (probable cause exists for arrest where police officer called to scene to fill out accident report observed appellant’s stumbling walk and odor of alcohol on breath). Therefore, the court erred in finding that insufficient probable cause existed to make an arrest and in suppressing the fruits of this arrest. Moreover, because the court’s suppression of the evidence was the legal predicate for the court’s order quashing the information, we find that the court also erred in granting appellee’s motion to quash. Accordingly, we reverse the court’s order and remand for trial.

Order reversed and case remanded for trial. Jurisdiction relinquished.

      . Where the Commonwealth appeals the decision of a suppression court, we must consider only the evidence of the defendant's witnesses and so much of the prosecution’s evidence as read in the context of the record as a whole remains uncontradicted. Commonwealth v. Hamlin, 503 Pa. 210, 216, 469 A.2d 137, 139 (1983).

      . We note here that quashal is not an appropriate remedy for an illegal arrest. A person is not a suppressible “fruit” of an illegal arrest. See United States v. Crews, 445 U.S. 463, 474, 100 S.Ct. 1244, 1251, 63 L.Ed.2d 537 (1980); Commonwealth v. Verdekal, 351 Pa.Super. 412, 421, 506 A.2d 415, 419-420 (1986). Thus, the fact that an arrest was unlawful alone in no way implicates the sufficiency of the Commonwealth’s prima facie case and is no basis for quashing an information. See Commonwealth v. Verdekal, supra (“any illegality of detention cannot deprive the government of the opportunity to prove guilt through the introduction of evidence wholly untainted by the police misconduct”).

      . Because the court’s quashal effectively terminated the prosecution, the Commonwealth’s appeal here is proper. See Commonwealth v. Gemelli, 326 Pa.Super. 388, 474 A.2d 294 (1984).

      . The Commonwealth does not argue that quashal of the information was an improper remedy for appellee to seek, based upon an allegedly illegal arrest. Thus, we will confíne our analysis here to the suppression issue.

      . We note that the Commonwealth agrees with the court below that at this point, based solely on the information communicated by Officer Hinds to Officer Strickler, Officer Strickler did not have probable cause to arrest appellee. See Appellant’s Brief at 8.

      . We note that the court suppressed "any evidence then gathered by Officer Strickler,” Trial Court Opinion at 2, but did not specify what evidence it was suppressing sis a result of the supposedly illegal arrest.


author: CIRILLO, President Judge.

text:
    583 A.2d 1248
    In re FREDERICK F. Appeal of ALLEGHENY COUNTY DEPARTMENT OF MENTAL HEALTH/MENTAL RETARDATION/DRUG AND ALCOHOL ABUSE.
    Superior Court of Pennsylvania.
    Argued Oct. 23, 1990.
    Filed Dec. 26, 1990.

      Timothy W. Pawol, Pittsburgh, for appellant.
    Mark Murphy, Pittsburgh, for appellee.
    Before CIRILLO, President Judge, and JOHNSON and MONTGOMERY, JJ.
   CIRILLO, President Judge.

Allegheny County Department of Mental Health/Mental Retardation/Drug and Alcohol Abuse (“MH/MR”) appeals from an order of the juvenile court denying MH/MR’s petition for involuntary civil commitment under Section 4406 of the Mental Health and Mental Retardation Act of 1966 (“MH/MR Act”) and directing MH/MR to provide residential placement for a dependent juvenile who is also mentally retarded and mentally ill, pursuant to Section 6357 of the Juvenile Act. See 42 Pa.C.S. § 6357. We affirm.

The factual and procedural history of the case is as follows. Frederick F., the juvenile in question, is a 16 year old boy suffering from both mild mental retardation, atypical psychosis, and oppositional defiant disorder. As a result of his multiple diagnoses, Frederick F. received both in-patient and out-patient psychiatric treatment and had several out-of-home placements with foster families as well as with private juvenile agencies. In 1986 Frederick F. was adjudicated dependent pursuant to section 6302 of the Juvenile Act. In July of 1988, Frederick F. was involuntarily committed to Mayview State Hospital for treatment of his psychotic behavior. On December 4, 1989, in light of the remission of Frederick F.’s psychosis, MH/MR presented a petition for civil commitment under section 4406 of the MH/MR Act. In an effort to find appropriate placement for Frederick Frederick F. the juvenile court, the Honorable Joseph A. Jaffee presiding, held two hearings. On January 19, 1990, Judge Jaffee entered an order denying the commitment petition and requiring MH/MR to develop and fund “an appropriate community residential placement” for Frederick F.

Following the filing of this appeal by MH/MR a petition to stay the January 19, 1990 order pending appeal was filed by MH/MR and subsequently denied by Judge Jaffee. We affirmed the order denying the stay petition. On May 23, 1990, MH/MR filed a petition for a stay with the Pennsylvania Supreme Court. To date, our supreme court has not disposed of this petition. MH/MR presents two issues on appeal:

1) Whether the juvenile court erred in finding that the petitioner, MH/MR, did not meet the standard for involuntary civil commitment, as set forth in the Mental Health and Mental Retardation Act, 50 P.S. § 4406?
2) Whether the juvenile court exceeded its authority in ordering MH/MR to provide rehabilitation services for Frederick F., an adjudicated dependent juvenile, pursuant to section 6357 of the juvenile act?

With regard to MH/MR’s first issue, the juvenile court found as a matter of fact that MH/MR had not met its burden of proving that the standard for involuntary commitment, pursuant to 50 P.S. § 4406, was met. Our scope of review, therefore, is limited to determining whether the record adequately supports the finding of the trial court. Levy v. First Pennsylvania Bank N.A., 338 Pa.Super. 73, 487 A.2d 857 (1985). The three criteria which must be met in determining whether a mentally retarded person should be involuntarily committed to the Commonwealth are:

(1) The person is impaired in adaptive behavior to a significant degree and is functioning at an intellectual level two standard deviation measurements below the norm as determined by acceptable psychological testing techniques.
(2) The impairment and the resultant disability were manifested before the person’s 18th birthday and are likely to continue for an indefinite period.
(3) The person, because of his retardation, presents a substantial risk of physical injury to himself or physical debilitation as demonstrated by behavior within 30 days of the petition which shows that he is unable to provide for, and is not providing for his most basic need for nourishment, personal and medical care, shelter, self-protection and safety and that provision for such needs is not available and cannot be developed or provided in his own home or in his own community without residential placement.

55 Pa.Code § 6250.11. The only point of disagreement between the parties at the hearings was the final clause of criterion (3) referring to the availability and development of a program fulfilling Frederick F.’s needs in the community. Based upon expert testimony, largely from MH/MR’s own professionals, the juvenile court found that Frederick F.’s needs would best be served by “a residential setting that has a mental retardation component to it.” There was complete agreement among the expert witnesses that the community was the preferred site for Frederick F.’s residential treatment. We note that there was also a consensus of opinion that institutionalization would, in fact, be deleterious to Frederick F.’s mental health. Furthermore, the witnesses generally agreed that Frederick F.’s placement in a state institution was considered inappropriate because such centers are more restrictive than Frederick F.’s needs dictate and placement in a state center would isolate Frederick F. from his family, who continue to maintain a relationship with him.

Nevertheless, MH/MR maintains that it demonstrated that a “406” involuntary commitment was appropriate for Frederick F. First, MH/MR argues that the Commonwealth, not the County, is responsible for long-term residential care of retarded individuals. The true crux of this argument is that MH/MR claims that it has no funds to pay for Frederick F.’s community placement, even though community placement is the preferred treatment method for Frederick F. In its second argument with regard to the “406” commitment criteria, MH/MR contends that a “406” commitment does not necessarily mean that Frederick F. would be institutionalized in a state center, therefore, a “406” commitment is not contrary to Frederick F.’s best interests. We address MH/MR’s arguments seriatim.

With regard to MH/MR’s first argument, it is undeniable that the state bears the responsibility for providing long-term residential care for mentally retarded citizens of the Commonwealth whose needs cannot be met in any other way. See In Re Schmidt, 494 Pa. 86, 98, 429 A.2d 631, 637 (1981) (“In this [Schmidt’s] case the need for institutionalization can neither be prevented or minimized. There is no less restrictive alternative available for the county to provide. The concept of normalization is not a consideration in the placement of Joseph [Schmidt]”). In this case, however, the expert witnesses agree that Frederick F. does not need institutionalization and that institutionalization is, in fact, contrary to Frederick F.’s best interests. In Schmidt, our supreme court further held that the concept of normalization requires that “the least restriction consistent with adequate treatment and required care shall be employed.” Id., 494 Pa. at 96, 429 A.2d at 636. In the case at hand, the evidence before the juvenile court, including virtually all the testimony at the two hearings, completely supports Judge Jaffee’s finding that “a state center ... was far more restrictive than Fred’s [Frederick F.’s] needs dictate.” Juvenile Court Opinion at 2.

MH/MR contends that the state must bear the financial responsibility for Frederick F.’s residential placement and that, therefore, a “406” commitment is appropriate. In support of this position, it relies upon In Re Sauers, 68 Pa.Cmwlth.Ct. 83, 447 A.2d 1132 (1982) (en banc), aff'd, per curiam, 500 Pa. 342, 456 A.2d 987 (1983). Sauers directly addressed the issue, undecided in Schmidt, of which government entity bears the financial burden for the placement of a mentally retarded person. In Sauers, the Commonwealth Court found that the county was responsible for community residential placement for Sauers, a mentally retarded adult, but the funds for such placement were to be allocated by the Commonwealth to the county mental health/mental retardation program which was to develop an appropriate residential program. Id., 68 Pa.Cmwlth.Ct. at 90, 447 A.2d at 1135-36. Sauers does not, therefore, stand for the proposition that the Commonwealth should provide placement for a mentally retarded individual merely because it provides the funds for such placement. Instantly, Judge Jaffee noted, “... although the county is charged with the responsibility for developing a non-institutional placement for Fred [Frederick F.], the Commonwealth pays the cost; ... [a]s a practical matter, all of the MH/MR funds are administered through the County, regardless of their original source.” Juvenile Court Opinion at 5. Furthermore, Sauers is distinguishable from the instant case in that the court was not faced with the issue of the appropriateness of an institutional commitment rather than community placement. The Sauers court decision spoke only in terms of community residential placement. We note further that neither Sauers nor Schmidt dealt with the problem of an adjudicated dependent juvenile, a minor whose health and welfare are legally the responsibility of Allegheny County, not the Commonwealth.

MH/MR contends that the only way Frederick F. can receive appropriate treatment for his mental retardation is through a “406” commitment because it, an Allegheny County agency, does not have the funds necessary to develop a residential program for this child. There are conflicting statements in the record regarding the actual availability of such funds. It appears that the ongoing funding feud between the County and the Commonwealth underlies MH/MR’s actions in this case. Nonetheless, the availability, or unavailability, of funding does not release the County from its obligations and duties as Frederick F.’s guardian. See City of Philadelphia v. Commonwealth, 128 Pa. Cmwlth.Ct. 565, 564 A.2d 271 (1989); In Re Sauers, supra. Judge Jaffee properly found that county agency funding was not part of a “406” commitment consideration.

MH/MR next argues that a “406” commitment does not necessarily mean that Frederick F. will be institutionalized in a state center. MH/MR provides no support for this contention other than its reference to the language of section 4406 and its enabling regulations. While 55 Pa. Code § 6250.11(3) does not refer specifically to institutionalization per se, we note that one of MH/MR’s own witnesses, Ruth Ann Koss, testified that “[a] residential facility is not available as of this hearing, so in lieu of a residential setting, a state center would be the only available placement for him [Frederick F.].” Clearly, the language of the law notwithstanding, Judge Jaffee correctly found that a “406” commitment would result in Frederick F.’s placement in a state institution.

In summary we find that the record is replete with evidence supporting the juvenile court’s factual finding that MH/MR did not meet its burden of proof for a “406” commitment for Frederick F. MH/MR did not provide sufficient evidence that provision for Frederick F.’s needs “is not available and cannot be developed or provided in his own home or community without residential placement.” 55 Pa.Code § 6250.11(3) (emphasis added).

We next address the second issue presented in this action. MH/MR contends that the juvenile court lacked the authority to order MH/MR (or CYS) to provide rehabilitation services under the Juvenile Act.

In support of its contention that the juvenile court could not order the County agencies to provide the services which Frederick F. requires, MH/MR presents three arguments. MH/MR first claims that due to Frederick F.’s mental retardation the juvenile court had to proceed under the MH/MR Act, rather than the Juvenile Act. Next, MH/MR argues that Frederick F.’s dependency status is secondary to his needs as a mentally retarded person and that, therefore, the MH/MR Act is the appropriate vehicle in determining his disposition. Last, MH/MR contends that the juvenile court had to conduct a dispositional hearing pursuant to section 6351 of the Juvenile Act before it could order the county agencies to provide suitable residential placement for Frederick F. in the community. We address these arguments seriatim.

MH/MR first asserts that “where the problem being addressed is mental retardation, the MH/MR Act of 1966 takes precedence and the Court below did not have an option to use the Juvenile Act.” In support of this assertion MH/MR relies upon section 6356 of the Juvenile Act, which states:

If, at a dispositional hearing of a child found to be a delinquent or at any hearing, the evidence indicates that the child may be subject to commitment or detention under the provisions of the act ... known as the “Mental Health and Retardation Act of 1966,” or the act ... known as the “Mental Health Procedures Act” the court shall proceed under the provisions of the appropriate statute.

42 Pa.C.S. § 6356. We do not interpret section 6356 to mean that the MH/MR Act takes precedence over the Juvenile Act. Frederick F. is no less a dependent juvenile because he is mentally retarded or mentally ill. Having found that Frederick F. was not subject to commitment under section 4406 of the MH/MR Act, there was no reason for the juvenile court to proceed under the MH/MR Act. Section 6351 of the Juvenile Act empowers the juvenile court to make any disposition “best suited to the protection and physical, mental, and moral welfare of the child.” 42 Pa.C.S. § 6351(a). We note that the courts of this Commonwealth have consistently found that a court acting pursuant to the Juvenile Act has broad discretionary powers “guided by the overriding principle of acting to provide for the care, protection, and wholesome mental and physical development of children coming within the provisions [of the Juvenile Act].” In re Lowry, 506 Pa. 121, 129-130, 484 A.2d 383, 388 (1984); 42 Pa.C.S. 6301(b). See also Janet D. v. Carros, 240 Pa.Super. 291, 362 A.2d 1060 (1976) (the juvenile court and the child’s custodian share the responsibility of developing and carrying out a plan of treatment which is appropriate to the individualized needs of each child).

Most recently, in In Re Tameka M., 368 Pa.Super. 525, 534 A.2d 782 (1987), aff'd., 525 Pa. 348, 580 A.2d 750 (1990), this court upheld an order of the juvenile court which directed CYS to reimburse the foster parents of an emotionally disturbed dependent juvenile for the child’s attendance at a Montessori pre-school. The child’s behavior had markedly deteriorated in a state pre-school program but dramatically improved in the private Montessori program. CYS argued that the court overstepped the bounds of its authority in ordering CYS to reimburse the foster parents for the dependent child’s special schooling when CYS could not, in turn, be reimbursed by the Commonwealth. We held:

... it is essential that the juvenile court exercise its authority over the dependent child ... so that the child’s best interests are met despite changes in the child’s condition or environment. The juvenile court’s jurisdiction over a dependent child does not end with the entry of an order of disposition ... [b]y finding that the court has the authority to enter the present order, we advance one of the purposes of the [Juvenile] Act, which is to provide for the wholesome mental development of the child.

Tameka M., 368 Pa.Superior Ct. at 541, 534 A.2d at 790.

In Lowry, our supreme court held that a juvenile court has the authority to order the county to fund placements which were not approved by the Commonwealth, but which were clearly in the child’s best interests. In Tameka M., we specifically determined that Lowry applied with equal force to the circumstances in Tameka M. Recently, our supreme court affirmed our application of Lowry to the facts of Tameka M. See In re Tameka M., 525 Pa. at-, 580 A.2d at 753. We see no reason why the rationale underlying Lowry and Tameka M. should not apply to the juvenile court’s order with regard to community placement for Frederick F. The juvenile court’s jurisdiction and its authority over Frederick F. are limited only by his needs and interests. Lowry, supra; Tameka M., supra.

MH/MR’s second argument, that the juvenile court must proceed under the MH/MR Act rather than the Juvenile Act because Frederick F.’s dependency status is secondary to his needs as a mentally retarded person, fails for the very reasons enunciated above. Judge Jaffee found that Frederick F.’s dependency .. if not entirely a result of his mental illness and mental retardation, is inextricably bound up with it.” Juvenile Court Opinion at 7. There is ample evidence in the record to support this finding of fact. The juvenile court must consider the needs of the child as a whole; Frederick F.’s mental health and retardation may not be severed from Ms status as a dependent juvenile for whom the legal custodian, Allegheny County, has “the right and duty to provide for the care, protection, training, and education, and the physical, mental, and moral welfare of the child subject to the conditions and limitations of the order [of the court] ...” 42 Pa.C.S. § 6357. We reiterate that under the Juvenile Act, the court has broad discretionary powers to make a disposition limited only by the caveat that the disposition be “best suited to the protection and physical, mental, and moral welfare of the child” Lowry, 506 Pa. at 124, 484 A.2d at 385 (citing 42 Pa.C.S. § 6351(a)(1)).

In its final argument in support of its contention that the juvenile court lacked the authority to order MH/MR to provide for Frederick F.’s needs in the community, MH/MR contends that the court could not order a disposition under the Juvenile Act without a dispositional hearing, pursuant to 42 Pa.C.S. § 6351. To support this argument, MH/MR places great reliance on the fact that the juvenile court’s disposition in Tameka M., which we affirmed, was made at a dispositional review hearing pursuant to the Juvenile Act, not, as here, at a “406” commitment hearing pursuant to the MH/MR Act. Our independent reading of section 6351(b) does not persuade us of the validity of MH/MR’s argument. Section 6351(b) of the Juvenile Act states:

(b) Required preplacement findings.—Prior to entering any order of disposition under subsection (a) that would remove a dependent child from his home, the court shall enter findings on the record or in the order of court as follows ...

42 Pa.C.S. § 6351(b). The plain meaning of this provision is that the court must make certain findings before removing a dependent child from his home. We further note that as dispositional review hearings are mandated by the Juvenile Act at regular intervals, Frederick F.’s placement will be subject to periodic review, and the disposition made by the juvenile court can be adapted as the child’s needs change. See 42 Pa.C.S. § 6351(e). We are not, therefore, convinced that a formal dispositional hearing had to be conducted by the juvenile court before it could enter the order which is presently at issue. In addressing this issue in Tameka M., our supreme court held:

The Juvenile Court maintains a continuing plenary jurisdiction in dependency cases under 42 P.S. § 6351 ... and has the power to review the circumstances of dependent juveniles ... concerning the condition and needs of the dependent child.

Tameka M., 525 Pa. at --, 580 A.2d at 752. Frederick F. was adjudicated a dependent and removed from his home six years ago. He has been placed in and removed from numerous foster homes and agency placements since that time. The juvenile court, under sections 6351 and 6357 of the Juvenile Act, had the duty as well as the authority to make an appropriate placement for Frederick F. once it determined that a “406” commitment was inappropriate.

In conclusion, we determine that the juvenile court was within its authority in ordering MH/MR to provide appropriate community residential placement for Frederick F. We agree with the juvenile court that Allegheny County cannot foist its responsibility for Frederick F. upon the Commonwealth if the petitioner, MH/MR, is unable to meet required criteria for a “406” commitment for Frederick F. As we have already determined that there was sufficient competent evidence to support Judge Jaffee’s finding that the “406” criteria were not met, we affirm the juvenile court’s order in all respects.

Order affirmed.

      . 50 P.S. § 4406.

      . 42 Pa.C.S. § 6301 et seq. We note that the juvenile court properly held that Allegheny County is the true party in interest in this matter. The Honorable Joseph A. Jaffee, in his opinion in support of his order, held that “fi]f MH/MR, in fact, cannot fund an appropriate placement, C & YS (Children and Youth Services) will be required to do so.” MH/MR and C & YS are both county agencies who share responsibility for Frederick F.’s welfare based upon his status as a dependent juvenile with mental retardation and mental illness problems.

      . 42 Pa.C.S. § 6302.

      . Pursuant to 50 P.S. § 4406, the Commonwealth, rather than the county, is the entity responsible for long-term residential care and placement of the retarded individual.

      . Judge Jaffee further ordered that Frederick F. remain at Mayview State Hospital, pending development of residential placement, for a period not to exceed 180 days. The record indicates that Frederick F. subsequently voluntarily committed himself to Mayview. Frederick F. was later discharged from Mayview and presently lives in a shelter facility operated pursuant to a contract with Allegheny County Children & Youth Services (“CYS”).

      , We note that MH/MR’s brief does not comply with Pa.R.A.P 2116(a) or Pa.R.A.P. 2119(a). Rule 2116(a) requires each point to be set forth in the statement of questions involved. Furthermore, rule 2116(a) states that "[wlhenever possible each question must be followed immediately by an answer stating simply whether it was affirmed, negatived, qualified or not answered by the court ... below." Pa.R. A.P. 2116(a). MH/MR’s brief does not set forth each point of argument, nor does it state the action taken with regard to each question by the trial court. Rule 2119(a) states that "[t]he argument shall be divided into as many parts as there are questions to be argued ...” Pa.R.A.P. 2119(a). Instantly, MH/MR has presented one question and four arguments. We call MH/MR’s attention to the mandatory language of the Pennsylvania Rules of Appellate Procedure and note that future non-compliance may result in dismissal. See Pa.R.A.P. 2101.

      . We will not address MH/MR’s argument with regard to the propriety of the juvenile court’s placement of Frederick F. at Mayview State Hospital as that issue is now moot. Moreover, we will not discuss MH/MR’s contention that the Juvenile Court failed to join the Commonwealth, as an indispensable party, to the commitment proceedings. This issue was not raised in the trial court and is, therefore, waived. See Pa.R.A.P. 302.


text:
    583 A.2d 1254
    Larry H. MOSS and Ruth A. Malefyt, Appellees, v. ELAN MEMORIAL PARK CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 4, 1990.
    Decided Dec. 27, 1990.

      Alice T.K. Corba, Berwick, for appellant.
    Robert Spielman, Wilkes-Barre, for appellees (submitted).
    Before OLSZEWSKI, DEL SOLE and HUDOCK, JJ.
   HUDOCK, Judge:

This is an appeal from the final decree of the court below ordering Appellant to honor and effectuate the terms and conditions of a conveyance, by corporate deed to Appellees, of one hundred fifty four-grave lots in Elan Memorial Park, a cemetery owned by Appellant. We reverse.

In July 1981, Appellees, Ruth A. Malefyt and Larry H. Moss, mother and son, instituted an action in specific performance against Appellant, Elan Memorial Park Corporation (“Elan”), a business incorporated in Pennsylvania, based on their claim that the then-president of the corporation, Anton J. Malefyt, gave them two cemetery lot deeds in January of 1956. The matter proceeded to trial where Appellees produced the deeds, one made out to Larry H. Moss for fifty four-grave lots, and the other made out to Ruth A. George for one hundred four-grave lots. Appellees testified that they had attempted to select specific lots in 1981, after waiting for the lots to appreciate in value, but Appellant refused to honor the deeds. At the conclusion of the hearing, the trial court granted Appellees’ request for relief. Appellant’s timely filed motion for post-trial relief was denied, and this appeal followed.

Initially, we note that the scope of appellate review of a decree in equity is particularly limited. A decree will not be disturbed unless it is unsupported by the evidence or demonstrably capricious. Walton v. Philadelphia Nat. Bank, 376 Pa.Super. 329, 545 A.2d 1383 (1988); Lombardo v. DeMarco, 350 Pa.Super. 490, 504 A.2d 1256 (1985). The test is not whether we would have reached the same result after reviewing the record, but whether the judge’s conclusion can be reasonably drawn from the evidence. Lombardo v. DeMarco, supra. Where the evidence reasonably supports the conclusions reached by the court sitting in equity, we cannot substitute our judgment for that of the court below. Id. Thus, the findings of the chancellor will not be reversed absent an abuse of discretion or an error of law.

Appellant argues that the trial court erred: 1) by using the wrong standard of proof in accepting the two deeds as prima facie valid and in concluding that it had not rebutted the presumption of the validity of the documents; 2) in not considering the gifting away of a major portion of the corporate assets by the president to Appellees as an ultra vires act; 3) in not applying the theory of laches to the entire case; 4) in not addressing the fact that there was no evidence to authenticate the signature on both deeds as that of Anton Malefyt; and 5) in not providing for the perpetual care fund for the grave lots.

The trial court held that the presence on the deeds of Elan’s corporate seal and the signature of Anton J. Malefyt, then president of the corporation, was prima facie evidence of Mr. Malefyt’s authority to execute a legal document on behalf of the corporation. See Prestressed Structures, Inc. v. Bargain City, U.S.A., Inc., 413 Pa. 262, 196 A.2d 338 (1964). Although Appellant introduced evidence in an attempt to rebut the prima facie validity of the deeds, the court below apparently rejected this evidence and concluded that Mr. Malefyt had both actual and apparent authority to make a valid conveyance of deeds to Appellees. Further, the trial court held that Appellees’ reliance upon Mr. Malefyt’s representations that he owned the corporation and otherwise had authority to transfer the deeds was reasonable and in good faith. For the reasons set forth below, we disagree with the trial court’s conclusions.

A thorough review of the record evinces that Appellant presented sufficient evidence to rebut the prima facie validity of the deeds, leading us to conclude that the chancellor abused his discretion. Specifically, Appellant’s evidence demonstrated that the secretary of Elan did not sign either of the two deeds in the space provided for the secretary’s attestation. The deeds at issue were signed only by the then-president, Mr. Malefyt; however, at the time of the alleged gift, January of 1956, Mrs. Malefyt already had in her possession a deed from Elan, which indicated that the business was a Pennsylvania corporation and which was signed by the president and the secretary of Elan, for a four-grave lot which she had purchased prior to 1956. Moreover, at the time when the purported gift was made, Larry Moss questioned Mr. Malefyt, in Mrs. Malefyt’s presence, regarding the validity of the deeds in light of the absence of the secretary’s signature. Although the law does not require that a corporation be limited to any particular form of execution or endorsement of obligations, Prestressed Structures, Inc. v. Bargain City, U.S.A., Inc., supra, the record belies the chancellor’s finding that Appellees could reasonably conclude that Mr. Malefyt could make a gift of corporate property on his own initiative. Thus, the record is wholly inadequate to sustain the chancellor’s conclusion that Appellees’ could reasonably believe that Mr. Malefyt had the authority to transfer the deeds, particularly where this action represented the gifting away of a significant portion of the corporation’s principal asset.

Appellees maintain that any concern that they had over the lack of the secretary’s signature on the deeds was alleviated by Mr. Malefyt’s reassurances to them that he was the owner of Elan, that he was authorized to transfer deeds without the secretary’s signature, and that he had done so in the past. Appellees, and the court below, suggest that Mr. Malefyt’s statements and the transfer of the deeds, with the corporate seal and president’s signature, constituted actual and/or apparent authority to make the gift and that their reliance on these acts and representations was reasonable. This conclusion is not only unsupported by the record, as discussed above, but is equally untenable as a matter of law.

First, Pennsylvania courts have repeatedly held that officers of corporations, even to the extent that they are shareholders of the corporation, are not deemed to be the owners of corporate property. Homestead Borough v. Defense Plant Corp., 356 Pa. 500, 52 A.2d 581 (1947); Meitner v. State Real Estate Commission, 1 Pa.Cmwlth. 426, 275 A.2d 417 (1971). Second, a corporate officer’s scope of authority to act on behalf of the corporation is established by the corporation’s by-laws, or in their absence, by resolution of the board of directors. Lokay v. Lehigh Valley Cooperative Farmers, Inc., 342 Pa.Super. 89, 492 A.2d 405 (1985). Finally, “apparent authority” arises only when a corporation knowingly permits its agent to exercise or assume a certain power or authority, or represents or holds him out as possessing it. Jennings v. Pittsburgh Mercantile Company, 414 Pa. 641, 202 A.2d 51 (1964); Lokay v. Lehigh Valley Cooperative Farmers, Inc., supra. Accordingly, “[a]n agent cannot, simply by his own words, invest himself with apparent authority. Such authority emanates from the actions of the principal and not the agent.” Jennings v. Pittsburgh Mercantile Company, supra, 419 Pa. at 645, 202 A.2d at 54.

At trial, Appellant introduced into evidence its by-laws as well as testimony regarding the minutes of the board of directors meetings prior to and after the time when Mr. Malefyt transferred the deeds. The by-laws do not grant or deny the corporation the right to make gifts; however, generally officers or directors of a corporation cannot give away its assets or property unless authorized by the stockholders. Sayre Land Company v. Borough of Sayre, 384 Pa. 534, 121 A.2d 579 (1956). Instantly, Elan’s by-laws vest the corporate powers of the corporation in the board of directors and specifically authorize the board of directors to conduct, manage and control the affairs and business of the corporation. With this in mind, we note that the uncontradicted testimony on behalf of the corporation regarding the minutes of the board of directors meetings demonstrated that Elan took no action regarding the gift to Appellees. In fact, the testimony revealed that the board had no knowledge whatsoever of Mr. Malefyt’s transfer of the deeds to Appellees.'

Additionally, a fair reading of the record in the instant matter indicates that at the time he gave the deeds to Appellees, Mr. Malefyt stated that it was something he wanted to do for Appellees because he thought they were “nice people.” Such a statement does not even begin to suggest that Mr. Malefyt was acting on behalf of the corporation pursuant to actual or apparent authority. Moreover, Appellees testified that they were “shocked” by the gift and believed that it was “very extravagant.” In this regard, we note that Mrs. Malefyt testified that she had previously worked as a part-time salesperson for the corporation, and at that time, a four-grave lot sold for $850. Accordingly, the value of the gift Appellees received from Mr. Malefyt was, at the very least, worth $52,500.

Finally, Appellant argued during the course of the trial that Mr. Malefyt’s transfer of the deeds to Appellees was contrary to Elan’s corporate purposes. It is undisputed that Elan’s corporate purposes, as amended in 1950, are:

To acquire, improve, manage, own, and utilize lands for cemetery purpose; to enter into contracts for sale of burial rights and all services connected therewith; to propagate, grow and sell flowers, shrubs and trees & plants; to build, own, manage and operate mausoleums, tombs, columbaria and crypts; to erect, own, manage and operate crematories; to engage in the burial or cremation of human remains and all services reasonably connected therewith; to sell, install and otherwise deal in bronze markers and memorials, burial vaults and grave decorations; and to do any and all things incidental to the accomplishment of any of said purposes.

In sum, review of the record leads us to the conclusion that the chancellor’s decision amounted to a clear abuse of discretion which included errors of law. Accordingly, we reverse the final decree entered in the court below.

The decree is vacated. The trial court is directed to issue a decree declaring the deeds held by Appellees to be null and void. Jurisdiction relinquished.

      . Ruth A. George became Ruth A. Malefyt in August of 1956 when she married Anton J. Malefyt. They divorced two years later.

      . Appellant argues that the deeds were improperly entered into evidence in the court below for failure to authenticate the signature of Mr. Malefyt. However, Appellant did not make an objection to the admissibility of the deeds based on the foregoing, but rather on hearsay grounds, which was properly overruled, and therefore we find this argument waived.

      . See discussion infra.

      . Due to our disposition of the matter, we find it unnecessary to discuss Appellant’s remaining issues.


author: TAMILIA, Judge:

text:
    584 A.2d 326
    COMMONWEALTH of Pennsylvania v. Larry SMALLS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 5, 1990.
    Filed Dec. 27, 1990.
    Lee Mandell, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com.

      Before CIRILLO, President Judge, and TAMILIA and CERCONE, JJ.
   TAMILIA, Judge:

The within matter is before this Court on appellant’s appeal from judgment of sentence entered April 17, 1990.

On February 8, 1989, a jury found the appellant guilty of kidnapping (18 Pa.C.S. § 2901(a), robbery (18 Pa.C.S. § 3701(a)), simple assault (18 Pa.C.S. § 2701(a)(3), possession of an instrument of crime (18 Pa.C.S. § 907) and conspiracy (18 Pa.C.S. § 903(a). The court denied the appellant’s boilerplate-fashioned post-verdict motions which the appellant had attempted, unsuccessfully, to supplement with additional, unauthorized post-verdict motions. As such, the court found the issue of improper jury instructions, raised in appellant’s unauthorized post-trial motions, had not been preserved for review. The appellant was sentenced to nine and one-half (9V2) to twenty-four (24) years and his subsequent pro se petition for reconsideration was dismissed as untimely.

Appellant’s sole claim on appeal is that the trial court erred in not charging the jury that the burden of proof is always on the Commonwealth and does not shift when the defense offers evidence.

We agree with the trial court the issue is waived as we find the court properly exercised its discretion in refusing to consider supplemental post-trial motions which were filed without the permission of the court. Pa.R.Crim.P. 1123(a). “As for his allegation that the court erred in its instruction to the jury, as the record bears no indication that he requested permission to file supplemental post-verdict motions, he has failed to preserve this issue as well.” (Slip Op., Guarino, J., 6/21/90, p. 2.) See Commonwealth v. Talley, 456 Pa. 574, 318 A.2d 922 (1974); (Although rules provide a defendant may request leave to file additional reasons for a new trial, this is not a matter of right but rather a matter of discretion with the trial court.) See also Commonwealth v. Smith, 380 Pa.Super. 619, 552 A.2d 1053 (1988); Commonwealth v. Kelly, 365 Pa.Super. 28, 528 A.2d 1346 (1987). Also see Pa.R.C.P. 227.1.

The trial court’s treatment of the matter sub judiee can be distinguished from that in Kurtas v. Kurtas, 521 Pa. 105, 555 A.2d 804 (1989), wherein our Supreme Court held, in a plurality decision, that where a trial court ignores the untimely filing of post-trial motions and lack of compliance with Pa.R.C.P. 227.1 and considers supplemental post-trial motions filed without permission, the issues considered by the trial court are not waived and must be considered by the appellate courts on appeal. Also see Commonwealth v. Hewett, 380 Pa.Super. 334, 551 A.2d 1080 (1988), allocatur denied, 522 Pa. 583, 559 A.2d 526 (1989).

Accordingly, we hold the trial judge, in addition to finding the boilerplate post-trial motions waived for purposes of appeal, correctly found the appellant had waived any more specific issue raised in supplemental post-trial motions, as a request for permission to file such motions was not made and accordingly not granted. Neither this Court nor our Supreme Court has ever taken from the trial judges the discretion to grant or deny permission to file supplemental motions as he or she feels is proper under the individual circumstances of a case.

Judgment of sentence affirmed.