author: POPOVICH, Judge.

text:
    616 A.2d 17
    Theresa SMITH, Appellee, v. Ronald MITCHELL d/b/a Beer Mart, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 2, 1992.
    Filed Nov. 10, 1992.

      Robert S. Teti, West Chester, for appellant.
    Robert P. Brendza, Downingtown, for appellee.
    Before CIRILLO, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge.

We are asked to review the judgment entered January 28, 1992, in favor of the plaintiff, Theresa Smith, and against the defendant, Ronald Mitchell, d/b/a Beer Mart. We affirm.

The facts evidence that on July 13, 1976, Rudolph Tavani (now deceased) and Ronald Mitchell entered into an agreement whereby Tavani loaned $30,000.00 to Mitchell, repayment of which was to be made over a 15-year period at a rate of $360 the first of each month.

Mitchell paid $47,160.00 (in 131 payments) before ceasing to honor the July 13,1976, loan agreement. As a result, Theresa Smith, the sole beneficiary of her mother’s estate following her father’s, Mr. Tavani’s, death, instituted suit to collect the balance claimed owed under the loan agreement, i.e., $13,-907.51. In an answer with new matter, Mitchell alleged that the July 13th agreement was entered into by mutual mistake in that the monthly payments incorrectly included an interest rate of 12% instead of the intended 8.75% orally agreed to by the parties at the inception of the agreement.

It was Mitchell’s position that he had repaid the amount borrowed from Tavani when calculated at the intended 8.75% rate of interest over 15 years. Further, he urged that the interest rate charged was usurious under 41 P.S. § 101 et seq and he was entitled to reimbursement in the amount of triple the excess paid in interest over the legal rate of 6%. Id. at § 502.

The dispute was heard initially by a panel of three arbitrators and resulted in an award in favor of the plaintiff'Smith. At a de novo bench trial, the defendant/Mitchell conceded borrowing money from Tavani and executing the July 13th note evidencing the terms and conditions of the loan agreement. Mitchell also admitted making monthly payments to the Tavani family, the money for which was drawn from his business account since the loan was used to enlarge his beer distributorship.

At the completion of the trial, the court found for the plaintiff in the amount of $16,626.43, and the order was reduced ultimately to judgment.

It is Mitchell’s contention that the money advanced by Tavani was in the nature of a “personal” loan and, as such, was subject to the maximum lawful rate of interest chargeable under the law of 6% per annum. Consequently, he assigns the trial court with the commission of error (as a matter of law) in holding that the transaction was a “business” loan and excepted from the 6% rate of interest.

If there is anything well-established in the law it is the regulation of the rate of interest is a subject within the police power of the State, and this is especially true in the case of loans because the business of making such loans profoundly affects the social life of the community. See Equitable Credit & Discount Co. v. Geier, 342 Pa. 445, 21 A.2d 53, 58 (1941).

It is elementary that the subject of the maximum amount to be charged by persons or corporations subject to the jurisdiction of a state for the use of money loaned within the jurisdiction of the state is one within the police power of such state. The power to regulate existing, the details of the legislation and the exceptions proper to be made rest primarily within the discretion of the state legislature, and “unless such regulations are so unreasonable and extravagant as to interfere with property and personal rights of citizens, unnecessarily and arbitrarily, they are within the power of the state____”

Griffin v. Connecticut, 218 U.S. 563, 569, 31 S.Ct. 132, 133, 54 L.Ed. 1151 (1910), quoting Watson v. Maryland, 218 U.S. 173, 30 S.Ct. 644, 646, 54 L.Ed. 987 (1910).

At common law the taking of any interest whatever was illegal, and the right to charge it, being a privilege granted by statute, is subject to legislative control. Commonwealth v. Puder, 261 Pa. 129, 137, 104 A. 505, 507 (1918). In this Commonwealth, the collection of interest is controlled by the Usury Law, which designates the Secretary of Banking to prescribe regulations to carry out the purposes of the Act. 41 P.S. § 601. Some of the purposes to be achieved are set forth in the Historical and Statutory Notes following the “Definitions” portion of 41 P.S. § 101 and reads:

An Act regulating agreement for the loan or use of money; establishing a maximum lawful interest rate in the Commonwealth; providing for a legal rate of interest; detailing exceptions to the maximum lawful interest rate for ... business loans in excess of ten thousand dollars[.]

See also 41 P.S. §§ 201, 202. The exceptions to maximum legal rate of interest (6%) for loans of $50,000.00 or less is detailed in Section 301, which reads in relevant part:

(f) The maximum lawful rate of interest set forth in this section and in Article II of this act [41 P.S. §§ 201 and 202] shall not apply to ... (v) business loans the principal amount of which is in excess of ten thousand dollars ($10,-000).

The Act of January 30, 1974, P.L. 13, No. 6, as amended, October 5, 1978, P.L. 1127, No. 264, § 2, 41 P.S. § 301(f) (1992) (Emphasis added).

To effectuate the intention of the Usury Law, the Legislature has imbued the Secretary of Banking with the authority to prescribe regulations toward that end. In compliance therewith, the Secretary of Banking has promulgated regulations appearing in Chapter 7 of the Pennsylvania Code, wherein the scope of the Chapter is explained as encompassing “the establishment of lawful interest rates for various types of transactions.” 10 Pa.Code § 7.1. And, in the “Definitions” portion, “business loans” is defined; to-wit:

Business loans — for the purposes of the act shall mean extensions of credit where the funds are to be utilized in a business enterprise and where the following conditions exist:
(i) the borrower exercises actual control over the managerial decisions of the enterprise in which funds are to be utilized.
(ii) the borrower signs an affidavit under penalty of perjury setting forth the intended use of proceeds.

10 Pa.Code § 7.2(i)(ii).

Generally, the rules and regulations of an administrative agency are subject to the same principles of construction that apply to construing statutes. Gaibis v. Werner Continental, Inc., 565 F.Supp. 1538, 1548 (W.D.Pa.1983). In other words, the plain language of the regulations and the ordinary meanings of the words therein are the starting points in construing the regulations and will be determinative unless there is an apparent ambiguity or expression of legislative intent to the contrary. Bread Political Action Committee v. Federal Election Commission, 455 U.S. 577, 580, 102 S.Ct. 1235, 1237, 71 L.Ed.2d 432 (1982); 1 P.L.E. Administrative Law & Procedure, § 54 (1986).

Further, it is a well-known rule of statutory construction that sections of a statute or regulations must be construed with reference to the entire section or statute. See Westmoreland Manor v. Com. Dept. of Public Welfare, 91 Pa.Cmwlth. 155, 496 A.2d 1282, 1286 (1985); see also Dept. of Public Welfare v. Woolf, 276 Pa.Super. 433, 419 A.2d 535, 537-38 (1980) (“In interpreting a statute, it must be construed as an integral part of the whole structure affected and not a separate matter housing an independent meaning of its own.”). Thus, the “affidavit” provision of 10 Pa.Code § 7.2(h) must not be read out of context.

As recounted supra, the purpose of the Usury Law is to set forth the legal rate of interest in this Commonwealth and to detail exceptions to the maximum lawful rate for, inter alia, business loans in excess of ten thousand dollars. Additionally, as we read the Usury Law, its thrust is to protect the citizenry of this Commonwealth from being exploited at the hands of unscrupulous individuals seeking to circumvent the law at the expense of unsuspecting borrowers who may have no other avenue to secure financial backing for a, for example, business venture. The facts at bar are far from such a scenario; to-wit:

1) Appellant was the sole proprietor of a business seeking a source of revenue to expand his operation;
2) Tavani offered to loan a fixed amount to the appellant to achieve his objective under a written agreement which contained clear and unequivocal terms relating to repayment;
3) Appellant accepted the terms of the loan without question, as evidenced by his faithful payment of the amount stipulated to for approximately eleven (11) years; and
4) Appellant voiced his objections to the rate of interest only after Tavani had died by alleging mutual mistake with regard to the rate of interest charged on the loan.

Under the conditions herein stated, we deem it appropriate to look to principles of equity to ameliorate a resolution of the dispute. In doing so, we make reference to the observations in Daset Mining Corp. v. Industrial Fuels Corp., 326 Pa.Super. 14, 473 A.2d 584 (1984), with regard to the application of equity in determining interest as an element of damages; to-wit:

... in contracts concerning payment of a sum of money, which bear an interest rate higher or lower than the legal rate; if the parties do not contract that it shall be the rate after the debt becomes due; then, the interest rate fixed by law attaches for the detention of the principal sum. ******
A review of the case law reveals that the trend of the courts has been to take an equitable approach in determining interest as an element of damages. See, E.I. DuPont de Nemours & Co. v. Lyles & Lang Construction Co., 219 F.2d 328 (4th Cir.1955) (interest to be awarded not at legal rate, but at rate plaintiff would have had to pay upon loan of similar amount in view of state money market); Davis Cattle Co. v. Great Western Sugar Co., 544 F.2d 436 (10th Cir.1976) (interest awarded at 11.5% per annum, not statutory rate of 6%); Peterson v. Crown Financial Corp., 553 F.Supp. 114 (E.D.Pa.1982) (interest awarded at rate of 2]é% above prime rate); Nedd v. United Mine Workers of America, 488 F.Supp. 1208 (M.D.Pa.1980) (no interest awarded where union did not benefit from breach of trust)----
The Pennsylvania courts have also ádopted this approach, and in equity cases, the award and rate of interest allowed is at the discretion of the chancellor. Sack v. Feinman, 489 Pa. 152, 413 A.2d 1059 (1980) ...; Our Supreme Court in Murray Hill Estates, Inc. v. Bastin, 442 Pa. 405, 410, 276 A.2d 542, 545 (1971), stated as follows:
An examination of the cases dealing with the charge and allowance of interest will disclose many difficulties, but the decided trend of courts of law and courts of equity has been “to break away from hard and fast rules and charge and allow interest in accordance with principles of equity, in order to accomplish justice in each particular case”.
* * * Unless a case be found, which is a conclusive precedent, the safest and at the same time the fairest way for a court is to decide questions pertaining to interest according to a plain and simple consideration of justice and fair dealing.

quoting McDermott v. McDermott, 130 Pa.Super. 127, 130, 196 A. 889, 890 (1938).

326 Pa.Super. at 36-37, 473 A.2d at 595-96 (Citations omitted; emphasis added).

Consistent with Daset Mining Corp., supra, we find that, despite the absence of a formal compliance with the affidavit criterion at 10 Pa.Code § 7.2(h), the objective sought to be satisfied with the use of an “affidavit” — confirmation by oath or affirmation of the party making a written declaration — has been obviated by the appellant’s admission in court to the intended purpose for which the money was loaned. N.T. 10/1/90 at 26. Moreover, as noted by the trial court on this point:

In the case at hand, there is no doubt that the loan qualifies as a business loan.... Both parties to the loan understood that the loan was to be used to expand Defendant[/Mitchell’s] beverage business. Defendant repaid the loan using business checks and he testified that he used the money exclusively for business purposes (N.T. p. 7, 25, 26). Additioanlly [sic ], since the business was Defendant’s own, there is no question that he had actual control over managerial decisions of the business.
Finally, we came to the final condition in the definition concerning an affidavit [as appears in 10 Pa.Code § 7.2(h) ]. This Court finds that such an affidavit is important only in cases where the use of the loan monies is ambiguous or unclear or where one party claims the loan was not for business purposes.
In the situation such as here, where all knew that the money was to be, and in fact was, used in Defendant’s business, it would be absurd to hold that the loan was not a business loan. Therefore, an affidavit in such a case as this would be an unnecessary formality.

Trial Court Opinion at 4. We agree and look to the trial court’s logic as a supplement to our own determination to affirm the judgment appealed.

We find that, given the particular facts of this case, the absence of the signing of an “affidavit” by the appellant-borrower, as called for by 10 Pa.Code § 7.2(h), is not fatal to the enforceability of the contract. Rather, in deciding the question of interest to be paid, a plain and simple consideration of justice and fair dealing compel that the appellant be required to repay the principal and interest due under the July 13, 1976, contract. See Daset Mining Corp., supra.

Judgment affirmed.

      . The entire loan agreement consisted of the following:
      Thriftway Beverage Co.
      West Chester, Penna.
      Attention: Mr. Ron Mitchell
      As per our verbal agreement, this will confirm the basis for entering. into a Loan Agreement, with Rudy Tavani, in the amount of $30,000.
      AMOUNT OF LOAN $30,000
      PAYABLE $360.00 per month
      LENGTH OF LOAN 15 year period
      Payments are to be made the first of each month, payable to Rudy Tavani.
      /s/Ronald Mitchell
      RON MITCHELL
      CC: R. Tavani
      R. Mitchell
      7/13/76

      . The Act of January 30, 1974, P.L. 13, No. 6, as amended April 6, 1979, P.L. 15, No. 4, § 1, 41 P.S. § 101 et seq. (1992) (hereinafter referred to as the Usury Law).

      . See note 2, supra.

      . The provisions of Chapter 7 were issued under the Act of January 30, 1974, P.L. 13, No. 6, as amended April 6, 1979, P.L. 15, No. 4, § 1, 41 P.S. § 101 et seq.

      . See Black's Law Dictionary 54 (5th ed. 1979).


source: Caselaw Access Project

author: TAMILIA, Judge. DEL SOLE, Judge,

license: Public Domain

text:
    616 A.2d 22
    Daniel Kris ATKINSON, Appellant v. Maria Dolores ATKINSON now Maria Dolores Sprester.
    Superior Court of Pennsylvania.
    Submitted Feb. 10, 1992.
    Filed Nov. 10, 1992.

      Earl S. Cohen, Pittsburgh, for appellant.
    Maria Dolores Sprester, pro se.
    Before DEL SOLE, TAMILIA and HESTER, JJ.
   TAMILIA, Judge.

Christopher Atkinson, who was 12 years of age at the time of the Order in question, lived with his mother, appellee/defendant, who was the primary caretaker from birth until August, 1990. Custody was awarded to the father by court Order, apparently resulting from the child’s wishes but against those of the mother (T.T., 7/23/91, p. 5). Appellee remarried after divorcing appellant and had two children from the second marriage, the first being deceased. Her second child was born in 1989 and was one and one-half years of age at the time of the Order in question. After receiving testimony that appellee remained in the home to take care of her child, the court determined that she had zero support obligation for Christopher as she was unemployed and assuming full-time care for her son. Appellant maintains this was error as the court was required to establish appellee’s earning potential and to frame a reasonable support Order based on this potential. Appellant maintains that a mother should be required to pay support for a child of her first marriage who is living with his father even though she is a full-time caretaker for the child of her second marriage. Appellant would impute a minimal $300 per month earning to appellee, which would suggest an Order pursuant to state-wide support guidelines of $59 per month. Appellant’s supporting argument for this issue is that the support burden must be shared equally by the parents and a father would be required to have an income amount imputed to him if he remarried and had a child for whom he was caring for full-time.

The trial court, while finding the issue a troubling one, relied upon the nurturing parent doctrine whereby, in appropriate cases, the earning capacity of a parent who chooses to stay home with young children need not be considered, citing Hesidenz v. Carbin, 354 Pa.Super. 610, 512 A.2d 707 (1986); Butler v. Butler; 339 Pa.Super. 312, 488 A.2d 1141 (1985). Apparently there is no problem with the rule when the mother is caring for the children of the marriage. It is when the mother is caring for her children of a second marriage that the conflict arises. Judge Blahovic determined that the issue was not whether the mother was caring for her children as opposed to their children, but whether under the facts of the case what the earning capacity would be. This is the correct analysis under these facts, particularly since there is no evidence of the mother’s earning capacity based on her work record or employability. On this record imputing earning capacity to the mother is a fiction which simply shifts the burden of supporting the wife’s child of the first marriage to her second husband, who has no legal obligation to do so.

The concept of imposing a support Order based on earning potential is of long standing in support law and derives from the principle that a person who has a support obligation may not withdraw from income producing endeavors to defeat the right of support to his/her dependents. It has never been the law that a mother who elects to care for her young child is chargeable with voluntary withdrawal from income-producing activity to defeat the right to support her child by a previous marriage.

The record in this case is totally devoid of any evidence that the mother ever worked, or that her son, who lived most of his life with her before electing to go with his father, did not have the benefit of her full-time nurturing. Without proof of her income-producing capacity and the prior practice as to the older child, this Court has no basis upon which to overrule the judgment of the trial court. If the appellant is attempting to create social policy based on the realities of today’s family structure and the Equal Rights Amendment, it is misguided at best and anti-family at worst. To place a value on appellant’s homemaking and nurturing duties which can be assessed against her husband, thereby establishing a support amount by virtue of his savings to create a third-party beneficiary in the child with the father, is so convoluted as to render support evaluations speculative and conjectural.

The appellant also ignores the exceptional burden women carry in our society for child rearing and nurturing in alleging that they should not be treated differently than husbands and fathers in the nurturing parent application. Unquestionably, some fathers will fall within the ambit of the nurturing parent doctrine when it comes to applying it to support duties for prior families. Mothers, however, by every measure and study that addresses this issue, are far and away more deeply involved and effected by the nurturing requirement than fathers and without question are generally impoverished by separation and divorce when children are involved. To attempt to restructure the nurturing parent doctrine as detailed in the appellant’s brief will simply add to an already lopsided and unbalanced burden on women caring for children. It is another destructive step in a culture which appears bent on destroying family stability. It also will increase the pressure on women with second families to abort pregnancies and to abandon children, or to give up on second marriages with children when the stress of either going to work or forcing the second husband to support her children by a prior marriage becomes unbearable.

The Order of the trial court is affirmed.

DEL SOLE, J., dissents.

DEL SOLE, Judge,

dissenting.

Daniel Kris Atkinson and Maria Dolores Sprester are the parents of Kristopher Robin Atkinson. Mr. Atkinson received custody of Kristopher in 1990, after the parties agreed to a consent custody order. At the time of the order, Mr. Atkinson had remarried and has two step-children who reside with him and his second wife. Mrs. Sprester married Gary Lee Sprester in 1989 and the couple has a son. Mrs. Sprester is not employed and cares for her son at home. She has no physical condition to prevent her from working. Mr. Atkinson seeks support from Mrs. Sprester. Based on the facts, the hearing Officer determined that Mrs. Sprester was unable to work because she desired to remain with her young child and had established no earning capacity. Accordingly, the Hearing Officer entered a “zero” support order. Mr. Atkinson sought trial court review and a de novo hearing was held. The trial court denied relief and entered an order stating that the “zero” support order was to remain in full force and effect. This appeal followed.

When reviewing an order of support, this court will not reverse the decision of the trial court absent an abuse of discretion. Machen v. Machen, 278 Pa.Super. 135, 420 A.2d 466 (1980). It is also well established that both parents are equally responsible to support their children. DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871 (1987). In determining a parent’s ability to provide support, the focus is on earning capacity rather than on the parent’s actual earnings. Akers v. Akers, 373 Pa.Super. 1, 540 A.2d 269 (1988). Among the factors to be considered in evaluating a parent’s support obligation are the parent’s income, potential earning power, and the nature and extent of property and financial resources. Commonwealth ex rel. ReDavid v. ReDavid, 251 Pa.Super. 103, 380 A.2d 398 (1977). The trial court must also consider, however, that a parent may not be penalized for having remained in the home for the purpose of nurturing young children instead of securing work outside of the home. Rock v. Rock, 385 Pa.Super. 126, 560 A.2d 199 (1989). This exception, which held that earning capacity cannot always be imputed to the “nurturing parent” who chooses to stay home with a minor child, was first pronounced in Commonwealth ex rel. Wasiolek v. Wasiolek, 251 Pa.Super. 108, 380 A.2d 400 (1977). In Wasiolek we held that earning capacity cannot always be attributed to a parent who chooses to stay home with a minor child, and that in deciding whether to excuse the nurturing parent from any support obligation for that child, the trial court is to consider the child’s age and maturity, the availability of others to assist the parent, the adequacy of available financial resources if the parent remains at home, and the parent’s desire to stay at home and nurture the child. Hesidenz v. Carbin, 354 Pa.Super. 610, 616, 512 A.2d 707, 710 (1986).

We did not establish an absolute rule in Wasiolek, however, that an earning capacity cannot be imputed to a nurturing parent who chooses to stay at home rather than work outside of the home. Rather, we held that the nurturing parent’s perception that the welfare of the child is served by having a parent at home is not dispositive, but is merely one factor to be considered by the trial court in making its determination whether to excuse the parent from contributing support. See Bender v. Bender, 297 Pa.Super. 461, 444 A.2d 124 (1982). In Bender, we held that the fact that the “nurtured” child was not the subject of the support order nor the child of the father could be considered by the trial court, but did not necessarily remove the case from Wasiolek’s “nurturing parent” exception. Bender at 467, 444 A.2d at 126. However, we did not exempt the “nurturing parent” from possible support obligations particularly where the “nurtured” child is not the subject of the support order.

In the instant case, the trial court concluded that Mrs. Sprester had not established an earning capacity because she chose to remain at home to care for her young child. Unfortunately, this conclusion ignores the economic reality that exists in her present family situation. While her remaining at home may prevent her from engaging in paid employment, it is of economic value to her present family unit. A determination of that value should have been made by the trial court. The fact that the Sprester family is being spared the expense of having to pay for child care is relevant in determining Mrs. Sprester’s earning capacity. A portion of that value should inure to the benefit of the child who is not in her custody. Therefore, the value of Mrs. Sprester’s nurturing parent services to her family unit should have been considered by the trial court in determining he¡r support obligation. A non-custodial parent should not escápe child support solely because a new family unit is established and additional children require care. To hold otherwise would be contrary to the general support law of this Commonwealth which requires parents to support their children from prior relationships. I seriously doubt that the Majority would .allow a father, who remarries and starts a new family, to remain at home with his children and claim the nurturing parent exception to avoid supporting children from a prior marriage.

Contrary to the position expressed by the Majority, requiring all parents to be responsible financially for their children is not “another destructive step in a culture which appears bent on destroying family stability.” Rather, it is a realistic attempt to insure that both parents have a responsibility to their children. Being a parent is a demanding vocation that requires personal and financial sacrifice. By choosing not to allow a parent to escape child support obligations because of the existence of a new family we are recognizing the needs of children to the love, support, and sacrifice of both parents.

I believe that courts must look beyond a nurturing parent claim, particularly where the nurtured child is not the one for whom support is sought, to determine a parties support obligation. In arriving at this determination, courts should consider the financial condition of the family, the nurturing needs being met, the ability of the obligor parent to engage in employment, the economic value of the nurturing parent’s service to the family unit, and any other factors that may enhance this determination.

Therefore, I dissent.


author: CIRILLO, Judge.

text:
    616 A.2d 26
    COMMONWEALTH of Pennsylvania v. Vincent SZARKO, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 3, 1992.
    Filed Nov. 12, 1992.

      Ronald Ervais, Philadelphia, for appellant.
    John K. McDonald, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CIRILLO, POPOVICH and HOFFMAN, JJ.
   CIRILLO, Judge.

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Philadelphia County. We affirm.

Appellant Vincent Szarko was tried before the Honorable Russell M. Nigro and convicted of statutory rape, indecent exposure, indecent assault, and corruption a minor. The victim, Szarko’s stepdaughter, had been subjected to Szarko’s sexual abuse for approximately two years. Following the denial of post-trial motions, Szarko was sentenced to a term of imprisonment of one to two years. This appeal followed. Szarko raises the following issues for our review:

1. Did the quashing of the subpoena issued to Judge Edward R. Summer deny the defendant access to exculpatory evidence?
2. Did the granting of the Commonwealth’s motion in hmine which limited the right of the defendant to question the credibility of the complainant, cause prejudice to the defendant in that:
it prevented the introduction of evidence that the complainant had made similar allegations against other males?
it prevented the defendant from responding to the closing argument of the prosecutor, who raised the issue as to how the complainant would know of the physical components of ejaculation if not from the defendant?
3. Did the trial court improperly admit into evidence documents and statements, which had not been supplied to the defendant pursuant to this discovery request, including:
the failure to advise the defendant of the exact or even approximate dates of the alleged occurrences? the acceptance of testimony of alleged prior occurrences, even after a court of equal jurisdiction had previously heard the allegations?
4. Did the trial court err in sentencing the defendant for a period in excess of the “guidelines” without the required contemporaneous written statement?
5. Did the offenses for which the defendant was sentenced merge?
6. Was there any evidence of a consensual sexual relationship between the defendant and the complainant, sufficient to support the verdict?

The trial court has properly disposed of issues one, two, three, and six. We, therefore, rely upon the trial court’s opinion, affirming its resolution of those claims.

In issue four, Szarko asserts that the sentencing court erred in sentencing him outside the guidelines without the required contemporaneous statement. This argument is meritless. The Sentencing Code provides in part:

In every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed. In every case where the court imposes a sentence outside the sentencing guidelines ... the court shall pro vide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines.

42 Pa.C.S. § 9721(b) (emphasis added). A sentencing court need only consider the guidelines prior to sentencing; if the court chooses to sentence outside the guidelines, it must then explain the reasons for this deviation. Id. See Commonwealth v. Wright, 411 Pa.Super. 111, 600 A.2d 1289 (1991). See also Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). Contrary to Szarko’s claim on appeal, however, the court did sentence within the guidelines. Statutory rape is a felony of the second degree, carrying an offense gravity score of six. According to the guidelines, the minimum term of confinement in the standard range is 4-12 months. The court sentenced Szarko to one to two years imprisonment; the minimum term, one year, is within the standard range. Szarko’s claim, therefore, is factually baseless.

With respect to issue five, Szarko claims that the offenses of corruption of the morals of a minor and statutory rape should have merged for sentencing purposes. The trial court, in its opinion, stated that it agreed with Szarko’s argument and recommended that this court vacate the sentence it had imposed for corruption of minors. See Commonwealth v. Fetzner, 372 Pa.Super. 469, 539 A.2d 890 (1988).

“The doctrine of merger has been invoked to limit duplicitous sentencing where one crime ‘necessarily involves’ the other, Commonwealth v. Nelson, 452 Pa. 275, 305 A.2d 369 (1973); Commonwealth ex rel. Moszynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941) or where a defendant committed what in effect amounts to a single criminal act, Commonwealth v. Crocker, 280 Pa.Super. 470, 421 A.2d 818 (1980).” Commonwealth v. Sayko, 511 Pa. 610, 614, 515 A.2d 894, 896 (1986).

In Fetzner, supra, this court stated: “Our Court has consistently held that a conviction for corruption of a minor is a lesser included offense and is therefore merged into a statutory rape conviction where the jury finds a defendant guilty on both [charges].’ ” Fetzner, 372 Pa.Super. at 479, 539 A.2d at 894 (citations omitted). There, the information clearly indicated that the appellant had been charged -with corrupting a minor “because he allegedly engaged in sexual intercourse with the minor victim.” Id. at 480, 539 A.2d at 895. Here, the sexual abuse spanned a two year period and comprised more than one criminal act. The appellant engaged in acts tending to corrupt the morals of a minor other than the actual act of sexual intercourse, the latter specifically proscribed by the statutory rape statute. 18 Pa.C.S. § 3122. Thus, Szarko and the trial court have misapprehended the applicability of Fetzner to the instant case. Applying the Supreme Court’s rationale in Sayko, supra, the offenses of statutory rape and corruption of minors do not merge for sentencing purposes.

Judgment of sentence affirmed. A copy of the trial court’s opinion is attached for purposes of allocatur.

APPENDIX

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY

FIRST DISTRICT OF PENNSYLVANIA

CRIMINAL TRIAL DIVISION

April Term, 1990

Numbers 0023 — 0029

Commonwealth v. Vincent Szarko OPINION

(Filed Nov. 7, 1991)

NIGRO J.

On November 13, 1990, following a trial before this Court sitting without a jury, the defendant was convicted of Statutory Rape, Indecent Exposure, Indecent Assault, and Corrupting A Minor. Post Verdict Motions were argued and denied on February 1, 1991. On that same date, the defendant was sentenced to not less than one year nor more than two years of incarceration.

The evidence adduced at trial was that over a period of years the defendant had subjected his stepdaughter, Leanne Kersch, to sexual advances. The victim testified that the first time the defendant had touched her was the week before Christmas in 1987 when the defendant had fondled her breasts and vagina. (N.T. 11/8/90, pp. 6, 12). The defendant continued to fondle the complainant on a regular basis for several months.

The victim, who at the time was eleven years of age, memorialized these events in her diary. The victim’s brother, Michael, discovered the diary and showed it to his mother, Lilly Szarko. The victim’s mother confronted her regarding the contents of the diary. The victim confirmed that what she had written in the diary was true. Lilly Szarko confronted the defendant who denied that Leanne’s allegations were true. Lilly Szarko then then told the child, Leanne, to tell her if any incidents occurred again. (N.T. 11/8/90, 22-24).

Thereafter, Leanne received an orientation about child abuse that was given to her sixth grade class at school. The speaker was Philadelphia Police Officer Beverly Parker. After the lecture was given to her class, Leanne wrote a note to the officer which read:

Dear Offercer (sic) Parker,
My dad sexually abuses me I told my mom the first time but she said if it happens agean (sic), tell her but I am scared. What should I do.
Leanne Kersch
(N.T. 11/9/90, p. 7).

As a result of Leanne’s letter, Officer Parker notified the school counselor, the school principal, and the child’s mother. Subsequently, Leanne was removed from her home and placed through the Department of Human Services. In December, 1988, Leanne was permitted to move in with Nancy and Bill Hifferty, friends of the family, with whom she stayed until August of 1989. At that time, with the approval of the Honorable Edward R. Summers, Leanne was permitted to return home on the condition that locks be installed on the door of her bedroom and the bathroom, and that the defendant would not be permitted to be alone with her under any circumstances. (N.T. 11/8/90, pp. 28 — 31)

Soon after Leanne returned home the defendant began engaging in sexual activity with her. She testified that although she had private conversations with Judge Summers she did not reveal what was occurring because she did not want to be removed from her home again. (N.T. 11/8/90, p. 64).

Leanne testified that about three weeks into the school term the defendant knocked on her bedroom door, entered, naked from the waist down, undressed her, and then inserted his penis into her vagina. (N.T. 11/8/90, pp. 37-41). The defendant told Leanne that he was having sex with her because he “didn’t get nothing off my mother.” (N.T. 11/8/90, p. 46). In a subsequent incident, the defendant put his penis in the complainant’s mouth and ejaculated. (N.T. 11/8/90, pp. 44-45).

Of the issues raised on appeal by the defendant, two relate to rulings made by other judges of equal jurisdiction. They are: whether the subpoena issued to the Honorable Edward R. Summers to testify was improperly quashed; and, whether the Commonwealth’s Motion In Limine to prevent cross-examination of the complainant regarding her allegations of rape against another male was improperly granted. These issues, however, were decided by judges of equal jurisdiction. Hence, this Court was bound by their rulings. Commonwealth v. Eck [272 Pa.Super. 406], 416 A.2d 520 (Pa.Super.1979); Reifinger v. Holiday Inns, Inc. [315 Pa.Super. 147], 461 A.2d 839 (Pa.Super.1983).

With regard to the issues and rulings of this Court, first, the defendant alleges that the verdicts were clearly against the weight of the evidence. The law is clear that when a court is faced with a challenge based upon the weight of the evidence it must determine whether “the verdict was so contrary to the evidence as to shock one’s sense of justice and make the award of a new trial imperative.” Commonwealth v. Farquharson [467 Pa. 50], 354 A.2d 545, 550 (Pa.1976); Commonwealth v. Jenkins [396 Pa.Super. 395], 578 A.2d 960, 962 (Pa.Super.1990); Commonwealth v. Hunter [381 Pa.Super. 606], 554 A.2d 550, 555 (Pa.Super.1989). Credibility determinations are within the sole province of the trier of fact who is free to believe all, part, or none of the testimony presented. Commonwealth v. Rodgers [500 Pa. 405], 456 A.2d 1352 (Pa.1983); Commonwealth v. Rivers [383 Pa.Super. 409], 557 A.2d 5 (Pa.Super.1989), allocatur denied [523 Pa. 648] 567 A.2d 652 (Pa.1989). Moreover, such credibility findings should not be disturbed on appeal. Commonwealth v. Wallace [522 Pa. 297], 561 A.2d 719 (Pa.1989); Commonwealth v. Garcia [370 Pa.Super. 132], 535 A.2d 1186 (Pa.Super.1988), allocatur denied, [519 Pa. 652] 546 A.2d 67 [57] (Pa.1988); Commonwealth v. Whiteman [336 Pa.Super. 120] 485 A.2d 459 (Pa.Super.1984).

In the instant matter, the trier of fact, after hearing all the evidence, found the testimony of the complainant to be credible in part. This Court rejected the testimony of the defendant who categorically denied engaging in any sexual activities with the victim. As such, the verdict was not so contrary to the evidence of record that it is shocking to one’s sense of justice.

Next, the defendant complains that this Court overruled a court of equal jurisdiction when it found the defendant guilty of statutory rape, which he alleges is contrary to the decision of the Honorable Edward R. Summers, who had allegedly “determined that the family was dysfunctional” and had allegedly “ordered the Department of Health and Human Services not to make any further references to the sexual allegations.” Stated differently, the defendant is arguing that, based upon double jeopardy principles the family court ruling acts as a bar to his subsequent criminal prosecution, assuming, arguendo, that Judge Summers’ rulings were what the defendant states them to be. This argument is without merit.

The weakness in the defendant’s argument is that the family court proceedings to which he refers are essentially civil in nature. A prior criminal proceeding is a prerequisite. Absent from the instant matter are any prior criminal proceedings, hence, double jeopardy does not attach. Commonwealth v. Allen [506 Pa. 500], 486 A.2d 363 (Pa.1984).

Next, defendant complains that that the Commonwealth’s response to defense argument that the complainant lied was improper and prejudicial. More specifically, the defendant challenges the Commonwealth’s response that the defense offered no motive for the complainant to lie to support that contention. Defendant proffers that the complainant’s motive to lie was to have the defendant removed from the house. He argues that he was prohibited from exploring the same by the pre-trial ruling that he could not question the complainant regarding her allegations of sexual activities with her aunt’s boyfriend. However, the defendant argument is fatally flawed inasmuch as the complainant’s allegations against her aunt’s boyfriend bear no relevance to her motive to have the defendant removed from her house. Rather, this is merely another attempt by the defendant to introduce irrelevant evidence of bad character.

Also, defendant claims that the Commonwealth, in its closing argument, raised the question as to how else could the complainant be able to describe ejaculation unless it was from the actions of the defendant. Defendant alleges that since he was prohibited from discussing the complainant’s other sexual conduct or activities this argument was prejudicial. However, the complainant’s conduct which the defendant was prohibited from introducing occurred years subsequent to the acts which the defendant perpetrated upon the victim. The statements, by the victim, were given years before the sexual conduct which the defendant was trying to introduce. The Commonwealth made this argument with regard to the consistency in the victim’s statements.

Furthermore, this Court heard the case as the trier of fact sitting without a jury. Although this Court permitted the respective attorneys to present argument, it decided this case solely upon the evidence introduced at trial. This Court did not give undue weight to, nor was it improperly influenced by, the arguments of counsel.

The law recognizes that concerns with safeguarding the finder of fact from forming bias and hostility toward defendants, such that the evidence could not be weighed and true verdict rendered, by protecting against improper remarks of prosecution, are lessened, if not eliminated, where the trial judge sits as the finder of fact. Our Supreme Court, in Commonwealth v. Harvey [514 Pa. 531], 526 A.2d 330, 330 (Pa.1987), recognized that the training and experience of jurists better equips them to render a verdict based on the relevant and competent evidence introduced at trial and disregard inadmissible evidence and other improper elements. This Court rendered a verdict in the instant matter based on the evidence introduced at trial and independent of the argument of the Commonwealth.

The defendant next argues that testimony and evidence of sexual conduct on the part of the defendant was improperly admitted as it related to prior police contact. Furthermore, the defendant complains that he was not provided notice of the Commonwealth’s intent to introduce said evidence. Specifically, the defendant complains about the introduction of sexual acts which the defendant perpetrated upon the victim in 1987 and 1988. The bills of informations charge a time period of “9/12/89 and on divers dates thereinafter up to and including 3/12/90.”

At trial, the defendant objected to the Commonwealth’s attempt to introduce evidence of the defendant’s conduct toward the complainant in 1987 stating that said evidence was beyond the indictment. (N.T. 11/8/90, p. 8). The Commonwealth responded that it was introducing the aforementioned testimony to establish a long progressive series of events. This Court permitted the testimony limited to that purpose.

Generally, evidence of other crimes committed by a defendant are inadmissible because of the prejudice it would create in the minds of jurors. Commonwealth v. Bradley [243 Pa.Super. 208], 364 A.2d 944 (Pa.Super.1976). However, evidence of crimes not charged in the information on which the defendant is being tried may be introduced in certain limited circumstances. Commonwealth v. Fuller [479 Pa. 353], 388 A.2d 693 (Pa.1978). In this regard, evidence of prior sexual encounters by the defendant upon the victim is admissible if it is one of a series of continuing events. Commonwealth v. Rodriguez [343 Pa.Super. 486], 495 A.2d 569 (Pa.Super.1985).

In the instant matter, the complainant testified that in December of 1987, a few weeks before Christmas, the defendant began rubbing her vagina. (N.T. 11/8/90, pp. 12-13). She testified that the defendant would rub her breasts and vagina on almost a daily basis until she told Officer Parker. (N.T. 11/8/90, pp. 20-21). Officer Parker testified that the complainant told her of the defendant’s actions on November 29, 1988. (N.T. 11/9/90, p. 5). The victim testified that she was removed from her home at that time by the Department of Human Services and did not return home until August, 1989. The child testified that about three weeks into the school term the defendant knocked on her bedroom door, entered, naked from the waist down, undressed her, and then inserted his penis into her vagina. N.T. 11/8/90, pp. 37-41). The defendant told the child that he was having sex with her because he “didn’t get nothing off my mother.” (N.T. 11/8/90, p. 46). She stated that the defendant would engage in such conduct with her on an every other day basis. In a subsequent incident, the defendant put his penis in the complainant’s mouth and ejaculated. (N.T. 11/8/90, pp. 44-45).

Here, the testimony regarding the defendant’s continued fondling of the complainant’s breasts and vagina was clearly admissible to establish a continuing course of conduct on the part of the defendant which temporarily ceased only when the child was removed from home by the Department of Human Services. However, when she was permitted to return home, not only did the defendant’s conduct resume, it had escalated to include sexual intercourse. Therefore, testimony relating to the defendant’s prior acts with the complainant were properly admitted under the aforementioned authority.

Without any allegation of prejudice, defendant complains that this Court permitted the testimony of Pamela Gaskins who purported to testify from the records of the Department of Human Services. The defendant misconstrues the import of Ms. Gaskin’s testimony, and consequently his argument is without merit.

At trial, Pamela Gaskins, the social worker charged with the care of Leanne Kersch’s well-being, testified as to her placement of the child in various homes so that she would be safe from the defendant’s sexual advances. Gaskins further testified that after the child had been placed in various homes she was finally permitted to return to her own home where her mother and the defendant had resided. Gaskins testified that the child returned to her home on September 20, 1989. Gas-kins testified that she checked her records which reflected the aforementioned date. The defendant did not object to this testimony at trial. Rather, the defendant now raises a multitude of alleged errors, none of which impacted upon the ultimate issue in this case: Did the defendant engage in unlawful sex with the complainant? After receiving a fair trial before this Court, this ultimate issue was resolved against the defendant. As such, his claims of error are frivolous.

Next, defendant complains that the Commonwealth failed to provide the defendant with the dates alleged by the complainant, the oral statements made by the complainant, or a copy of the exhibit which was a note written by the complainant to Officer Parker of the DARE unit. To the contrary, defendant was properly notified of the criminal charges he had to meet. While it is true that an accused must be reasonably apprised of the date of the crime charged against him, See Commonwealth v. Devlin [460 Pa. 508], 333 A.2d 888 (Pa.1975); Commonwealth v. Levy [146 Pa.Super. 564], 23 A.2d 97 (Pa.Super.1941), that does not mean that the Commonwealth is required to establish the exact date of an offense in all cases. Rather, the rights of an accused must be considered against “the nature of the crime and the age and condition of the victim.” Commonwealth v. Devlin, supra.

Hence, where, as here, the crime is a continuing one and is obviously less susceptible to being dated within a reasonable degree of certainty, especially where the victim is a child, the courts have not required the Commonwealth to establish the dates of each occurrence. Commonwealth v. Groff [378 Pa.Super. 353], 548 A.2d 1237 (Pa.Super.1988); Commonwealth v. Volk [298 Pa.Super. 294], 444 A.2d 1182 (Pa.Super.1982); Commonwealth v. Niemetz [282 Pa.Super. 431], 422 A.2d 1369 (Pa.Super.1980). Thus, where an accused complains of the Commonwealth’s failure to establish the crime with certainty, the courts have allowed the Commonwealth a reasonable measure of flexibility when faced with the special difficulties involved in ascertaining the dates of assaults upon young children.

In the present matter, the defendant was apprised of, through the bills of information, the period of time during which the acts were alleged to have occurred. The charged acts were perpetrated upon the victim when she was between the ages of twelve and thirteen. The charged acts were alleged to have occurred over a six month period from 9/1/89 to 3/12/90. Balancing the length of the period of time alleged in the bills of information and the age of the child victim, the dates provided to the defendant were within the reasonable measure of flexibility allowed to the Commonwealth in child molestation cases. A corollary is that if the Commonwealth does not have to allege a specific date in the bills of information, nor does it have to prove a specific date at trial, then it necessarily follows that the Commonwealth does not have to provide the defendant with a specific date or dates through discovery. Therefore, the defendant’s challenge fails.

Defendant complains that he was not provided with the oral statements of the complainant. Also, he complains that he was not provided with a copy of the note written by the complainant to Police Officer Parker. However, these requested items were the subject of a pre-trial discovery motion made by the defendant. As such, this Court, again, will not overrule the ruling of another court of equal jurisdiction. Commonwealth v. Eck [272 Pa.Super. 406], 416 A.2d 520 (Pa.Super.1979); Reifinger v. Holiday Inns, Inc. [315 Pa.Super. 147], 461 A.2d 839 (Pa.Super.1983).

Next, defendant argues that the Court erred in permitting hearsay testimony of Officer Parker. He does not state specifically what testimony he alleges was improperly admitted. However, defendant failed to object at trial to any testimony which he considered to be hearsay and thus faded to preserve this issue for appeal. Pa.R.Crim.P. 1119(b); Commonwealth v. Martinez [475 Pa. 331], 380 A.2d 747 (Pa.1977).

Defendant’s next argument, that this Court exceeded the “Aggravated Range maximum under the Sentencing Guideline,” is predicated upon incorrect premises: the Sentencing Guidelines provide recommended maximum sentences; and the defendant was given an “Aggravated Range” sentence or greater. First, the Sentencing Guidelines provide recommended minimum, not maximum, sentences which a court considers in fashioning a sentence. Secondly, this Court sentenced the defendant within the standard range of the guidelines contrary to the defendant’s assertion that the sentence imposed exceeded the aggravated range. The defendant was sentenced to 1 to 2 years of incarceration. The offense gravity score for Statutory Rape is 6. The defendant’s prior record was calculated as zero. The sentencing guidelines provide for a recommended 4-12 month period of incarceration in the standard range for a “6 — 0” combination. Therefore, the defendant’s argument fails inasmuch as this Court gave the defendant a standard range sentence.

Although the defendant failed to offer any objection at sentencing, he claims on appeal that the conviction for Corrupting the Morals of a Minor merges with the conviction for Statutory Rape. However, since the claim goes to the legality of the sentence it cannot be waived by failing to raise it in the court below. Commonwealth v. Campbell [351 Pa.Super. 56], 505 A.2d 262 (Pa.Super.1986).

Turning to the merits of the defendant’s claim, a review of the applicable case law reveals that in order to determine if separate statutory offenses merge, the court must examine whether the crimes arose out of the same criminal act, transaction, or episode and also that the statutes defining the crimes charged were directed to substantially the same harm or evil. Commonwealth v. Williams [344 Pa.Super. 108], 496 A.2d 31 (Pa.Super.1985) (en banc). Our Courts have consistently held that a conviction for corruption of a minor is a lesser included offense and merges into a statutory rape conviction where the defendant is found guilty of both offenses. Commonwealth v. Fetzner [372 Pa.Super. 469], 539 A.2d 890 (Pa.Super.1988); Commonwealth v. Stafford [307 Pa.Super. 278], 453 A.2d 351 (Pa.Super.1982); Commonwealth v. Reidenbaugh [266 Pa.Super. 315], 404 A.2d 697 (Pa.Super.1978); Commonwealth v. Cox [209 Pa.Super. 457], 228 A.2d 30 (Pa.Super.1967). With such being the state of the law, and this appeal representing the first time either the Commomvealth or the defendant has brought the issue to this Court’s attention, it is clear that the conviction for Corrupting the Morals of a Minor merges with his conviction of Statutory Rape for sentencing purposes. As such, it is recommended that the Superior Court vacate the defendant sentence for Corrupting the Morals of a Minor since the matter was not presented to this Court until it no longer had jurisdiction.

In his next three matters complained of on appeal the defendant, in essence, challenges the sufficiency of the evidence on the offenses of Statutory Rape, Indecent Assault, and Indecent Exposure. The defendant argues that the verdicts are inconsistent with each other.

First, the defendant argues that there was no evidence to support his conviction for Statutory Rape, as neither the complainant nor the defendant testified of any sexual conduct by consent. The defendant’s argument appears to imply that the burden of proof is on the Commonwealth to prove consent. However, the law is clear that “[t]he absence, existence, or effectiveness of the victim’s consent is immaterial to the crime of statutory rape.” Commonwealth v. Rhodes [510 Pa. 537], 510 A.2d 1217 (Pa.1986). The defendant’s guilt of this crime of Statutory Rape was established by the proven elements that he was older than eighteen years and that he engaged in sexual intercourse with a victim who was younger than fourteen years. The defendant was 38 years old at the time of the incident and the child victim was thirteen. She testified that the defendant had vaginally penetrated her with his penis. Hence, there was sufficient evidence presented at trial to sustain the defendant’s conviction for Statutory Rape.

Next, the defendant apparently complains that the verdicts of guilty on the charges of Indecent Assault and Indecent Exposure are inconsistent with the verdicts of guilty on the Statutory Rape charge and not guilty on the Rape charge. The defendant claims that the trier of fact had determined that the conduct was with consent and the respective statutes for Indecent Assault and Indecent Exposure imply that those offenses are committed without consent. This argument is without merit.

It is well recognized that consistency in criminal verdicts is not required. Inconsistent verdicts are proper so long as the evidence is sufficient to support the convictions that the trier of fact has returned. Commonwealth v. Trill [374 Pa.Super. 549], 543 A.2d 1106 (Pa.Super.1988); Commonwealth v. Graves [310 Pa.Super. 184], 456 A.2d 561 (Pa.Super.1983).

Here, there is clearly sufficient evidence to support the defendant’s convictions on the charges of Indecent Assault and Indecent Exposure. The complainant testified that the defendant entered her room naked from the waist down. She testified that the defendant threw her on the bed, pulled off her underwear, placed his body upon hers, and subsequently inserted his penis into her vagina. (N.T. 11/8/90, pp. 37-38). Viewing the record in the light most favorable to the Commonwealth, this evidence if believed was sufficient to support the defendant’s convictions for Indecent Assault and Indecent Exposure. Hence, his challenge must be denied.

BY THE COURT:

(s) Russell M. Nigro

RUSSELL M. NIGRO, J.

      . Similar to the requirement that a court state its reasons for the sentence imposed, see Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), the Sentencing Code also requires the court to state its reasons for deviating from the guidelines if in fact the court chooses to do that. We emphasize that the court has the discretion to sentence outside the guidelines, but if it does so, the court "shall" explain "the reason or reasons for the deviation from the guidelines.” 42 Pa.C.S. § 9721(b). The explanation is not a discretionary matter. See Commonwealth v. Wright, supra.


author:
WIEAND, Judge: OLSZEWSKI, J.,
      OLSZEWSKI,

text:
    616 A.2d 34
    Rupert G. WILSON and Johanah Wilson, h/w, Appellants, v. John H. ANDERSON and Philadelphia Newspaper, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued May 12, 1992.
    Filed Nov. 16, 1992.

      Paul M. Perlstein, Philadelphia, for appellants.
    Mark T. Riley, Philadelphia, for appellees.
    Before WIEAND, OLSZEWSKI and KELLY, JJ.
   WIEAND, Judge:

In this appeal from the judgment entered on a defense verdict, the plaintiff contends that the trial court committed error when, sua sponte, it examined him about his failure to use a seat belt and thereafter gave prejudicial instructions regarding such failure. We are constrained to agree. Therefore, we reverse and remand for a new trial.

On March 27, 1986, a vehicle driven by Rupert G. Wilson collided with a truck owned by Philadelphia Newspapers, Inc. and driven by John Anderson at 22nd Street and Lehigh Avenue in Philadelphia. Wilson sued for personal injuries allegedly caused by the accident. He testified at trial that while he was edging around a stopped bus, the Anderson truck passed him from behind and struck the left front bumper of his vehicle. Anderson testified, however, that while he was moving in his lane, Wilson’s vehicle suddenly and without warning left its lane in such a manner that the Wilson vehicle scraped the right rear side of the truck. The jury returned a verdict in favor of the defendants. A motion for new trial was denied, and judgment was entered on the verdict.

In reviewing an order denying a new trial, that order will not be disturbed unless the trial court committed a clear abuse of discretion or error of law which may have affected the outcome of the case. Cashdollar v. Mercy Hosp., 406 Pa.Super. 606, 614, 595 A.2d 70, 74 (1991); Eck v. Powermatic Houdaille, 364 Pa.Super. 178, 188, 527 A.2d 1012, 1017 (1987); Robinson v. City of Philadelphia, 329 Pa.Super. 139, 144, 478 A.2d 1, 3 (1984).

By statute in Pennsylvania, the driver of a vehicle is required to “wear a properly adjusted and fastened safety seat belt system.” 75 Pa.C.S. § 4581(a)(2). Another subsection of the same statute, however, provides: “In no event shall a violation or alleged violation of this subchapter be used as evidence in a trial of any civil action; nor shall any jury in a civil action be instructed that any conduct did constitute or could be interpreted by them to constitute a violation of this subchapter....” 75 Pa.C.S. § 4581(e).

In the instant case, the seat belt issue was introduced by the trial court when it sua sponte examined the husband-plaintiff as follows:

THE COURT: ... Did you have a shoulder strap on?
THE WITNESS: I used it for a few weeks.
THE COURT: But did you have it on this day?
THE WITNESS: No, I did not.
MR. ROSENBERG [plaintiff-appellants’ counsel]: Your Honor, may we have a sidebar, please?
THE COURT: Objection denied and your other motion is denied.
MR. ROSENBERG: Thank you, your Honor.
THE COURT: (Addressing the witness) Will you take a look at this, and you have a shoulder strap there, don’t you? You have a shoulder strap?
THE WITNESS: If I may ask, what are you referring to? THE COURT: Right here.
THE WITNESS: Oh, you are talking about the—
THE COURT: The shoulder strap.
THE WITNESS: There is one in the car, yes.
THE COURT: There is one in the car. All right, thank you.

Later, the trial court instructed the jury as follows:

What is negligence? The legal term negligence, otherwise known as carelessness is the absence of ordinary care, which a reasonably prudent person would exercise in the circumstances here presented. Negligent conduct may consist either of an act or an ommission [sic] to act when there is a duty to do so. In other words, negligence is a failure to do something which a reasonably careful person would do or the doing of something, which a reasonably careful person would not do in light of all the surrounding circumstances established by the evidence in this case. It is for you to determine how a reasonably careful person would act under the circumstances.
Ladies and gentlemen, the plaintiff had a shoulder strap in his car. You can see it from the photograph, but the plaintiff did not use the shoulder strap.
MR. ROSENBERG [plaintiff-appellants’ counsel]: Your Honor, I’ll have to object. Excuse me, I have to object to this.
THE COURT: Just a minute.
MR. ROSENBERG: Thank you, your Honor.
THE COURT: Mr. Rosenberg, I’ll take notice of your objection, but you will have to hear what I have to say.
The law says that you should wear your shoulder strap, but the law goes further and says that in a civil action you cannot consider the failure or lack of using your shoulder strap. It says that in the very book that I have.
In no event shall a violation or alleged violation of this subchapter be used as evidence in a trial of any civil action. So I have to instruct you that no matter what the act says on this side of the page, this side of the page says you cannot consider it. So that is what I am telling you.

The trial court’s injection of the seat belt issue was in direct violation of the statute. Unfortunately, the court’s jury instructions compounded the error. Immediately after correctly defining negligence and telling the jury that it should determine “how a reasonably careful person would act under the circumstances,” the court reminded the jury that the plaintiff had a shoulder strap in the car which he did not use. Later, the court repeated the statutory requirement that the plaintiff wear a shoulder strap, but then, for the first time, told the jury “that in a civil action you cannot consider the failure or lack of using your shoulder strap. It says that in the very book that I have.”

This, at best, was confusing to the jury. At worst, it was clear error and a violation of the statute. The failure of the plaintiff to wear a seat belt was not for the jury to hear. After the court had improperly injected the seat belt issue and then told the jury that the law required the plaintiff to wear a seat belt, it was both too late and too little to tell the jury that the law says that the failure to wear a seat belt cannot be considered in a civil action.

It is correct, as the defendant-appellees argue, that an appellate court must review the trial court’s jury instructions in their entirety and that error will not be founded upon an isolated excerpt taken out of context. Cashdollar v. Mercy Hosp., 406 Pa.Super. 606, 614, 595 A.2d 70, 74 (1991); Noble C. Quandel Co. v. Slough Flooring, Inc., 384 Pa.Super. 236, 240, 558 A.2d 99, 101 (1989). It is also true that a trial judge has wide latitude in his or her choice of language when charging a jury, provided always that the court fully and adequately conveys the applicable law. Seewagen v. Vanderkluet, 338 Pa.Super. 534, 545, 488 A.2d 21, 26 (1985); Pratt v. Stein, 298 Pa.Super. 92, 142, 444 A.2d 674, 700 (1982). A court’s instructions must adequately and accurately state the law and provide the jury with a guide during its deliberations. Brill v. Systems Resources, Inc., 405 Pa.Super. 603, 605-606, 592 A.2d 1377, 1378 (1991). Therefore, a court’s instructions should be clear and not confusing. It is error to give contradictory instructions, for a jury, having the right to believe all the court’s instructions to be correct statements of the law, may as readily follow the erroneous instruction as the correct one. We hold, therefore, that it was error for the trial court to tell the jury in one breath that it might consider a fact made irrelevant and prejudicial by statute and, in the next, that the law, in the judge’s book, says the jury must not consider the irrelevant and prejudicial fact. One can only ask, if the law says the failure to use an available seat belt is not to be considered, why the trial court so emphatically directed the jury’s attention to it.

Because the verdict in this case may well have been a consequence of the trial court’s erroneous introduction of improper evidence and its subsequent failure, during jury instructions, to repair the damage already caused by such evidence, a new trial is warranted.

Order reversed. Case remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

OLSZEWSKI, J.,

files a dissenting statement.

OLSZEWSKI,

Judge, dissenting.

I respectfully dissent. Upon examination of the testimony and the jury charge in this case as a whole, I find that there was no prejudice, bias, or pre-judgment suffered by appellant. The passages to which appellant directs this Court are part of an approximately ninety-page transcript. Even if any of the trial judge’s comments could have caused a misunderstanding, they were insignificant and outweighed by the remainder of the testimony which was fairly and clearly elicited by counsel for both parties. I find no abuse of discretion on the part of the trial court in this case. Accordingly, I would affirm.

      . Because a new trial is necessary, we do not decide whether the trial court also committed reversible error when it cross-examined the plaintiff-appellant about the fact that he consulted a lawyer before being examined by a physician. We observe, however, that a trial judge is not required to be a passive observer.
      " 'It is well settled that a trial court always has the right, and sometimes even the duty to interrogate witnesses, in order to clarify evidence,’ or to elicit new information that is necessary to ensure a fair trial. Commonwealth v. Hodge, 246 Pa.Superior Ct. 71, 79, 369 A.2d 815, 819 (1977). A new trial is required, therefore, only when the trial judge’s questioning amounts to an abuse of discretion. Commonwealth v. Elmore, 241 Pa.Superior Ct. 470, 476, 362 A.2d 348, 351 (1976). Because a charge of this nature is of the most serious type, however, " ‘the record must clearly show prejudice, bias, capricious disbelief or prejudgment’ ” before an abuse of discretion will be found. Kenworthy v. Burghart, 241 Pa.Superior Ct. 267, 271-72, 361 A.2d 335, 338 (1976).”

        Fleck v. Durawood Inc., 365 Pa.Super. 123, 128, 529 A.2d 3, 5-6 (1987), quoting Pratt v. Stein, 298 Pa.Super. 92, 117, 444 A.2d 674, 687 (1982). See also: Reimer v. Tien, 356 Pa.Super. 192, 202, 514 A.2d 566, 571 (1986).


author: HOFFMAN, Judge.

text:
    616 A.2d 37
    TANGLWOOD LAKES COMMUNITY ASSOCIATION v. Marion LASKOWSKI and Maria Laskowski, His Wife v. S.U. HOME BUILDERS, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 27, 1992.
    Filed Nov. 16, 1992.

      Peter C. Paul, Philadelphia, for S.U. Home Builders, appellant.
    Wieslaw T. Niemoczynski, Stroudsburg, for Laskowski, appellees.
    Before BECK, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge.

This is an appeal from a January 16, 1992 order denying appellant, S.U. Home Builders, Inc., post-trial relief. Appellant presents one issue on appeal:

Was the lower court divested of jurisdiction over the subject matter which is under appeal to the Superior Court?

Appellant’s brief at 3. For the reasons that follow, we affirm.

This appeal stems from a dispute arising from the construction of a home in Tanglwood Lakes, on property which was subject to the rules of the Tanglwood Lakes Community Association [hereinafter “Tanglwood”], appellee in the instant case. Appellant was hired by Marion and Maria Laskowski, also appellees in the current action, to construct a home. Appellant’s attempted construction of the home rendered the lot unsuitable for residential construction for a period of a least four years. Two separate actions were then filed in the Court of Common Pleas of Pike County.

In the first action, the Laskowskis brought suit against appellant seeking a release of the balance of a construction fund which was held in escrow, recovery of other money paid to appellant, and funds to cover the cost of restoring the property to its previous condition. In the second action, Tanglwood, brought suit against the Laskowskis. Tanglwood claimed that although construction was begun on the lot, it was not completed within the time allowed for construction within the Tanglwood Lake community. Tanglwood sought either completion of construction or the return of the lot to its previous undisturbed condition.

The cases were joined for trial on March 13, 1991. Thereafter, Tanglwood and the Laskowskis entered into a stipulation wherein the Laskowskis agreed that they would either complete construction or restore the lot to its original condition. The case then proceeded to trial on the issues involving the Laskowskis and appellant.

On June 10, 1991, the court entered an order directing that appellant refund all monies paid by the Laskowskis, and that the money paid into the construction escrow account be returned to the Laskowskis. The trial court further held that appellant would be responsible for payment of the cost of restoring the property to its pre-construction condition. Appellant’s post-trial motions were denied and appellant subsequently appealed the verdict to the Superior Court in September, 1991.

On September 17,1991, Tanglwood filed a motion seeking to hold both appellant and the Laskowskis in contempt for failure to restore the property to its original condition. On October 31, 1991, the court entered an order directing that the lot be restored to its previous condition by the Laskowskis within thirty days, and that appellant comply in all other respects with the court’s June 10, 1991 order within thirty days. Appellant filed post-trial motions with respect to the October 31 order. On January 16, 1992, the trial court denied appellant’s motion for post-trial relief. The court also directed appellant to pay upon demand the costs incurred for restoration of the lot, to return all funds paid by the Laskowskis, and to release the money in the escrow account, or face fines of one hundred dollars a day for each day of noncompliance. This timely appeal followed.

Appellant argues that the trial court in this case did not have the power to enforce its January 16, 1992 order as there is an appeal in progress in this case. To support this contention appellant cites Pa.R.A.P. 1701(a) which states:

General Rule. Except as otherwise prescribed by these rules, after an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may no longer proceed further in the matter.

Appellant also states the well known proposition that once an appeal is taken, “the trial court is divested of jurisdiction over the subject matter until further order of the appellate court reinstating jurisdiction.” Ingram v. Dovertown Estates, Inc., 307 Pa.Super. 22, 26, 452 A.2d 884, 886 (1982) (citing Bartle v. Bartle, 304 Pa.Super. 348, 450 A.2d 715 (1982)). While the above-stated characterizations of the law are accurate, they are inapposite to the question at hand.

Pa.R.A.P. 1701(b)(2) states that the trial court has the power to “enforce any order entered in the matter, unless the effect of the order has been superseded as prescribed in this chapter.” We have previously noted in discussing the effect of Rule 1701(b) that: “trial court possess inherent power to enforce their orders and decrees by imposing sanctions for failure to comply with their orders. Rouse Philadelphia Inc. v. Ad Hoc ’78, 274 Pa.Super. 54, 71, 417 A.2d 1248, 1257 (1979), cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980). This power is retained even after an appeal is filed, absent supersedeas.” Travitsky v. Travitsky, 369 Pa.Super. 65, 71, 534 A.2d 1081, 1084 (1987) (citing Pa.R.A.P. 1701(b)(2)). In the instant case appellant made no effort to comply with Chapter 17 of the Rules of Appellate Procedure. Appellant never sought supersedeas or a stay to the court’s original order in any court. Thus the trial court could properly enforce its order against appellant by imposing sanctions for lack of compliance. Accordingly, we affirm the trial court’s order.

Affirmed.

JOHNSON, J. concurs in the result.


author: ROWLEY, President Judge:

text:
    616 A.2d 641
    In the Interest of Joseph WOODFORD. Appeal of Joseph WOODFORD.
    Superior Court of Pennsylvania.
    Submitted March 28, 1992.
    Filed Sept. 14, 1992.
    Reargument Denied Nov. 25, 1992.

      John W. Packel, Asst. Public Defender, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Comm., participating party.
    Before ROWLEY, President Judge, and WIEAND and MONTGOMERY, JJ.
   ROWLEY, President Judge:

Joseph Woodford appeals from an order of disposition following his adjudication of delinquency based on his conviction for attempted theft and resisting arrest. The only issue presented for our consideration is whether appellant’s conviction for resisting arrest is sufficiently supported by the evidence. After a detailed review of the record and the law, we now reverse.

Appellant’s conviction arose out of his April 29, 1991, attempt to break into a car owned by a Philadelphia policeman. An eyewitness to the attempt testified that she had seen appellant and another boy in a car which she knew belonged to her neighbor, Officer Marone. She alerted Officer Mar-one’s wife to her observations and then proceeded to the corner, where she was met by a policewoman. Simultaneously, as he emerged from his shower, Officer Marone happened to look out an upstairs window. He witnessed appellant, whom he recognized as a neighbor boy, leaving his parked car.

Officer Marone hurriedly dressed in layman’s clothing, grabbed his gun, and went out to the car. A quick inspection revealed that although the car’s glove box had been rifled, nothing was missing. It was at this point that Officer Marone noticed the presence of the eyewitness and the female officer at the scene. He did not converse with the officer. Instead, despite the availability of an on-duty police officer in uniform, Officer Marone determined to arrest appellant himself. To that end, Marone proceeded alone to appellant’s home. He found appellant standing with several other people on his own front porch. The female police officer arrived at appellant’s home shortly thereafter.

Although he was not on duty nor in uniform, Officer Marone approached appellant and said, “I’m locking you up for breaking into my car. I’m a cop.” There is no evidence of record that Officer Marone displayed a badge or any type of identification evidencing himself as a public servant. Appellant ascended the steps to his house in flight and Officer Marone grabbed appellant by the jacket, punched him in the face, and tried to pull him down the steps. At that point, three other people witnessing the incident jumped into the fray in an unsuccessful effort to pull Officer Marone away from appellant. Even the female officer unsuccessfully tried to pull Officer Marone away from appellant.

As Officer Marone tenaciously hung on to appellant, appellant’s mother emerged from the house and pulled her son out of Officer Marone’s grasp and into their home, slamming the door. At that moment, back-up police units arrived and Officer Marone told them he had just been “jumped.” As Marone was relating his version of the details surrounding the incident, appellant came to the front door and laughed. It was at this point, while several on-duty police officers in uniform looked on, that Officer Marone charged up the steps into appellant’s home, seizing appellant in a fit of rage. Appellant was then handcuffed by a uniformed police officer and was subsequently transported to the police station without further incident.

On June 3, 1991, appellant was adjudicated delinquent by reason of attempted theft and resisting arrest, and was sentenced to probation after denial of his post-verdict motion. Whereupon, appellant filed this timely appeal.

On appeal, appellant contends that his conviction for resisting arrest must be reversed because the Commonwealth’s evidence was insufficient to present a prima facie case that appellant resisted arrest within the meaning of 18 Pa.C.S.A. § 5104. In addressing this claim, we apply the following standard of review:

“In reviewing appellant’s challenge to the sufficiency of the evidence we must determine whether, viewing all the evidence admitted at [the adjudication], together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense[s] charged w[ere] supported by the evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.”

Commonwealth v. Akers, 392 Pa.Super. 170, 181, 572 A.2d 746, 751 (1990), allocatur denied, 526 Pa. 627, 584 A.2d 310 (1990).

Having applied this standard, we are constrained to conclude that the Commonwealth’s evidence was not sufficient to support appellant’s conviction for resisting arrest. In order to sustain a conviction for resisting arrest, the Commonwealth must prove that a defendant, intending to prevent a public servant from effecting a lawful arrest, created a substantial risk of bodily injury to the public servant or another, or that the defendant employed a means of resistance which justified or required substantial force to overcome the resistance. 18 Pa.C.S.A. § 5104. In the instant case, we conclude that appellant’s conviction cannot stand because the Commonwealth did not present sufficient evidence that appellant created a substantial risk of bodily injury to Officer Marone or anyone else.

In arriving at this conclusion, we carefully reviewed the body of law existing on this issue and found no legal authority for the Commonwealth’s position that by attempting to flee, appellant somehow compelled Officer Marone to hit him in the face, thereby subjecting Officer Marone to the substantial risk that appellant’s friends and relatives would “jump” him in an effort to protect appellant from further assault. It appears rather obvious that the only person who created a “substantial risk of injury” to himself and/or others in the instant case was Officer Marone.

It is well-settled in this Commonwealth that where the circumstances of a suspect’s flight exposes a pursuing officer or anyone else to a substantial risk of injury, a conviction for resisting arrest is proper. Section 5104 does not require evidence of serious bodily injury, nor does it require actual injury. Merely exposing another to the risk of such injury is sufficient to sustain a conviction under Section 5104. Commonwealth v. Lyons, 382 Pa.Super. 438, 448, 555 A.2d 920, 925 (1989). However, it is equally well-established that a suspect’s mere flight to escape arrest does not violate § 5104, Commonwealth v. Anderjack, 271 Pa.Super. 334, 339, 413 A.2d 693, 696 (1979).

In Lyons, prior to being arrested for alleged parole violations, in order to evade arrest, the suspect fled twice from county probation officers. The third arrest attempt was successful only after the suspect led four police officers into a violent struggle in the midst of a frigid creek with a slippery bottom and swift current. To effect the arrest, all four officers were needed to overcome the suspect’s determination as he kicked and struggled to get away. When he was finally captured, the suspect went completely limp, refusing to walk. Together, the four officers had to carry him up to the river bank, where he was handcuffed.

In that case, appellant argued that the Commonwealth had not presented sufficient evidence to prove beyond a reasonable doubt that he resisted arrest because it’s only evidence was that appellant fled from the officers attempting to effectuate his arrest. This Court disagreed and held that under the rather extreme circumstances of that case, appellant’s flight had created a substantial risk that, considering the omnipresent danger presented by a creek’s uneven, slippery bottom and rapid current, one or more of the officers needed to capture appellant could have incurred bodily injury as a result of being led into the freezing waters.

The facts in the instant case are much different than those in Lyons. Officer Marone was not deliberately led into an inherently dangerous situation by appellant, but rather, created a dangerous situation for himself when he chose to vent his personal anger by attacking appellant in the presence of a group of appellant’s friends and relatives.

Accordingly, we reverse the order of disposition entered following appellant’s adjudication of delinquency based on his conviction for resisting arrest.

Conviction finding appellant guilty of resisting arrest is reversed. In all other respects, the trial court’s adjudication and order of disposition is affirmed.

WIEAND, J., concurs in the result.

      . In this appeal, appellant does not challenge the sufficiency of the evidence for his conviction of attempted theft.

      . Appellant also argues that because Officer Marone did not display any outward signs of police authority, appellant was unaware that Officer Marone was, in fact, a public servant and therefore, appellant lacked the requisite intent to prevent a public servant from effecting a lawful arrest. Because we find that the Commonwealth did not prove beyond a reasonable doubt that appellant created a substantial risk of bodily injury to Officer Marone or anyone else, we do not reach the question of whether or not the Commonwealth adequately proved that appellant knowingly intended to interfere with a public servant's duties.


author: DEL SOLE, Judge:

text:
    616 A.2d 644
    Marcia SINGLETON, Appellee, v. Wendell M. WATIES, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued June 3, 1992.
    Filed Sept. 23, 1992.
    Reargument Denied Dec. 4, 1992.

      Carol Waties, Philadelphia, for appellant.
    Marcia Singleton, pro se.
    Before CAVANAUGH, DEL SOLE and BECK, JJ.
   DEL SOLE, Judge:

In a previous appeal to this court, Appellant sought review of a trial court order directing support for a child born in 1989 to Appellee. The parties had never married, and after Appellee filed a complaint in support and Appellant acknowledged paternity, the court held a hearing. Because Appellee was not present at the hearing, but rather was represented by the District Attorney’s office since she was receiving public assistance, the court ordered the matter remanded to the trial court for a full evidentiary hearing. The trial court was directed to conduct a proceeding in which both parties would have an opportunity to present evidence and thereafter to enter an appropriate support order. Following the hearing, the court entered an order of support in the same amount previously ordered. Appellant takes this appeal from the second order of support.

Appellant makes numerous claims on appeal. Among them are initial challenges to the manner in which the trial court conducted its hearing, received evidence and formulated its order of support.

Appellant submits that the court erred when it accepted evidence of Appellee’s income and expenses but refused to again take testimony on his living expenses and when it improperly used the guideline amount to formulate the order of support, ignoring the parties income and expenses. He further claims that he should have been permitted to introduce testimony received at an earlier hearing that Appellee’s parents, with whom she and the child live, provide her with some assistance and that he should have been allowed more extensive cross-examination of Appellee’s father.

In Young v. Muthersbaugh, 415 Pa.Super. 591, 609 A.2d 1381 (1992), this court examined the impact of the en banc decision rendered in Ball v. Minnick, 414 Pa.Super. 242, 606 A.2d 1181, on a trial court’s obligations to conduct Melzer analysis or render support decisions based upon income and expenses. The court in Young stated: “Following Ball, a Melzer analysis is no longer necessary or required in guideline cases and any cases previously decided that permit a Melzer [v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984) ] analysis in a guidelines case have been overruled. Trial courts should depart above the guidelines only when unique needs of the child are involved. Further, departures below the guidelines are permitted only when the obligor can establish unique financial needs.” Young v. Muthersbaugh, supra, 415 Pa.Super. at 597, 609 A.2d at 1384.

Based upon these earlier decisions we can readily dismiss Appellants claim that the trial court wrongly failed to utilize a Melzer analysis and ignored the parties expenses. We also find no error with the court refusal to hear evidence of Appellant’s living expenses in the second support hearing since Appellant does not claim that these expenses were extraordinary, which would permit a departure from the guidelines.

Appellant’s claims regarding his limited ability to question witnesses concerning aid received by Appellee from her parents, likewise have no merit. The trial court heard testimony that Appellee and child reside with Appellee’s parents, but the court refused to permit Appellant extensive cross-examination and to admit testimony received at an earlier hearing on the subject. We find no abuse of discretion on the part of the trial court and we echo its statement that “to impute income to Appellee based on the gifts and contributions Marissa receives from her maternal grandparents would effectively expand the burden of responsibility for support to include the grandparents as well as the parents.” Trial court opinion at 10. With respect to the trial court’s ruling limiting Appellant’s questioning of Appellee’s father as to whether Appellee is attending college we note that Appellee was questioned concerning this subject. She indicated that the student loans listed on her income and expense statement were incurred back when she attending college from 1981 to 1984. She also replied that she is not currently attending any institution of higher learning, such as college. (N.T. 10/2/91 at 21.) The court accepted this testimony, which Appellant did not refute, and we find no abuse of discretion by the trial court in its refusal to permit Appellant to question Appellee’s father on this same issue.

We turn now to the more troubling matter of whether the trial court erred in failing to impute an income to Appellee and in stating, as termed by Appellant, “categorically that a mother is not required to seek or engage in employment until a child is five years old.”

The trial court in its opinion did state that it “lacked authority” to order Appellee to seek employment, citing the requirements for public assistance which exempt from work a parent who personally provides care for a child under the age of six. 55 Pa.Code § 165.23(b)(2)(iv). We agree with Appellant that the trial court wrongly assumed that it did not have the power to impute income to Appellee because of the public assistance laws. The requirements for public assistance eligibility are completely unrelated to matters of support and the ability of a trial court to impute income to a parent. However we must note that the trial court’s comments in this regard followed its discussion of whether it would be appropriate to impute an income to the mother of this child under the circumstances of this case, which the court refused to do. The court latter stated that “even if it had agreed with appellant’s argument” it perceived itself to be bound by the laws governing public assistance. Because the trial court’s misperception of its authority was only considered by it as an alternative means of disposing of Appellant’s claim, we will go further and examine the ultimate question of whether the trial court erred in refusing to impute an income to mother in spite of her previous education and work experience.

Appellant points to the fact that Appellee is a college educated woman who was employed with the School District of Philadelphia prior to taking a maternity leave due to the birth of their daughter. Appellee stated that during the first two years of her maternity leave she retained her seniority within the district. She is able to stay on maternity leave for another two years after which time, if she chooses to return to this work, she will be hired before other applicants to fill a vacancy if one should exist. N.T. 10/2/92 at 21. Appellee’s net pay during the period of employment with the school district was approximately $350 bi-weekly. Id. at 22. Pointing to these facts, Appellant argues that the trial court erred in listing Appellee’s income as $0 and not imputing a monetary figure of support based upon Appellee’s earning potential. He contends that the trial court’s failure to take such action caused it to be presumed that he, as the child’s father, must accept the principle burden of support for the child and thus resulted in a confiscatory and punitive award.

It is true that both parents have an equal responsibility to support their children, and the extent of their support obligation is determined by their earning capacity and ability. DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871 (1987). A trial court in determining the parents ability to pay support must primarily focus on earning capacity rather than actual earnings. Rock v. Rock, 385 Pa.Super. 126, 560 A.2d 199 (1989). However, a trial court is free to consider making an exception to this rule whenever a parent chooses to stay at home with a minor child. In Hesidenz v. Carbin, 354 Pa.Super. 610, 512 A.2d 707, 710 (1986) this court stated: “In appropriate cases, such a nurturing parent may be excused from contributing support payments.” Among the proper considerations are “the age and maturity of the child, the availability of others who might assist the parent, the adequacy of available financial resources if the parent remains at home, and finally, the parent’s desire to stay home and nurture the minor child.” Id.

In the instant case the trial court concluded that it would be inappropriate to impute an income to Appellee who wished to stay out of the workforce to care for the parties 2)6 year old child. The trial court supplied the following rationale for its decision:

“... the court was confronted with the fact that the child at issue, Marissa, is in ill health and that appellee is her primary caretaker. Since her birth in 1989, Marissa has suffered from asthma and numerous food allergies. (N.T. p.54). She has been hospitalized twice and sees doctors almost monthly regarding her maladies. (N.T., p.55). In light of the child’s poor health, this court believes that it is reasonable and, certainly, in her best interest and welfare for her mother to stay at home to provide care for her. Due to the circumstances, this court believes that it would have been unconscionable to impute earning capacity to appellee and order her to seek employment.

Trial court opinion at 6.

The trial court reasoned that it could not ignore the substantial nonmonetary contributions made by Appellee for the care of Marissa. In view of the fact that this court will not reverse a decision of a trial court regarding an order of support absent an abuse of discretion, Rock v. Rock, supra, and that the trial court has provided sound rationale for its decision not to impute an earning capacity on Appellee and ultimately formulated an award -within the guidelines, we reject Appellant’s claims of error. We do, however, remind Appellant that orders of support are reviewable and modifiable when, and if, the parties circumstances change or the child’s needs, as related to her age and health, alter through time.

Appellants remaining two claims can be readily dismissed. First he asserts that the trial court erred in holding him “solely responsible for all arrears allegedly due and owing to the department of public welfare.” More specifically he contends that he should not be solely responsible based upon Appellees “unreasonable, immature and unrealistic decision to quit her job and impoverish herself and the child.” Appellant’s Brief at 19. For the reasons expressed above in considering Appellant’s claims regarding the court’s failure to impute an income to Appellee, we reject this challenge. Subsumed within this issue is a statement by Appellant that the department of public welfare did not provide evidence of Appellee’s eligibility for public assistance and the amount of arrears owed. Because we find no evidence of such a complaint before the trial court, we deem the matter waived.

Lastly Appellant asks us to consider whether the trial court erred when it refused to hear testimony on the issue of granting Appellant an income tax deduction by listing Marissa as his dependant. Appellant sought to have this issue resolved by the trial court in the October 2, 1991 hearing which was ordered upon remand by the Superior Court from the earlier appeal of the first support award. In making his request Appellant though his counsel advised the court:

The last thing, Your Honor, regarding the issue that I believe Your Honor can decide, would be an order granting my client the right to obtain credit, which I don’t think has been raised. Well, it came up before in front of Judge Kozay. Your honor hadn’t decided that issue, because I don’t believe it had been raised before.

N.T. 10/2/91 at 62.

The trial court refused to consider the matter because it interpreted its directions from the Superior Court to require it to hold a hearing solely on the matter of child support. However, our review of the record indicates that this matter of the tax deduction was ruled on by Judge Kozay in July 31, 1991 hearing on a Petition for Injunctive Relief filed by Appellant. At the conclusion of a hearing at which both parties and their counsel were present, the court directed Appellee to sign an IRS form 83-32 which would allow Appellant tó claim Marissa as a dependant despite the fact that Appellee is the custodial parent. The court further order Appellant to split any tax refund he receives with Appellee. The transcript indicates that Appellee signed the form in the presence of the court.

Although this court is at a loss to explain the rationale for requiring Appellant to split the refund he may receive, questions regarding this matter are not a proper subject for this appeal. Appellant filed a Motion for reconsideration of the July 31st order, which was denied. No appeal was taken. Nevertheless, the matter was not undecided at the time of the October 2nd hearing, as it may have appeared to the court from the statements made by Appellant’s counsel. Because the record indicates that this matter was resolved in front of Judge Kozay on July 31, 1991, it was not an appropriate question to be decided by the trial court and is certainly not a matter available for our review.

For the above reasons, we affirm the order of the trial court.