author: WIEAND, Judge:

text:
    580 A.2d 39
    Ann ROBERSON a/k/a Ann Roberson Davis, Appellant, v. William Scott DAVIS, Appellee.
    Superior Court of Pennsylvania.
    Argued March 28, 1990.
    Filed Sept. 20, 1990.

      Stephen H. Silverman, Jenkintown, for appellant.
    Ronald J. Harper, Philadelphia, for appellee (submitted).
    Before WIEAND, BECK and POPOVICH, JJ.
   WIEAND, Judge:

In this appeal we are called upon to consider the property rights of parties to a meretricious relationship upon termination of their cohabitation.

Ann Roberson and William Scott Davis cohabited from 1975 to November, 1984. Davis was already married; and, therefore, the relationship between Davis and Roberson was at all times meretricious. In 1975, Roberson moved into a residence owned by Davis at 922 East Slocum Street, Philadelphia, where she and Davis lived together until November, 1977. At that time, the parties moved into a home at 1440 Ashbourne Road, which had been purchased by Davis for the sum of one hundred thousand ($100,000.00) dollars. The property was subsequently improved by the addition of a swimming pool. Title to the real estate was at all times vested in Davis.

After Roberson and Davis had terminated their meretricious relationship, Roberson commenced an action in equity to construct a trust or otherwise acquire a one-half interest in the Ashbourne Road property, including the swimming pool. She also requested a transfer of title to a Mercedes vehicle which, allegedly, belonged to her but which was titled in the name of Davis. The trial court, following trial without jury, granted relief with respect to the Mercedes automobile but denied relief as to the real estate and swimming pool. Exceptions were denied, the decree became final, and Roberson appealed.

“The trial judge, sitting in equity as a chancellor, is the ultimate fact-finder.” Fiumara v. Fiumara, 285 Pa.Super. 340, 346, 427 A.2d 667, 670 (1981), quoting Balin v. Pleasure Time, Inc., 243 Pa.Super. 61, 68, 364 A.2d 449, 453 (1976). The scope of review, therefore, is limited. The final decree will not be disturbed unless the chancellor committed an error of law or abused his or her discretion. Sack v. Feinman, 489 Pa. 152, 165-166, 413 A.2d 1059, 1066 (1980), appeal denied after remand, 495 Pa. 100, 432 A.2d 971 (1981); Commonwealth, Dept. of Environmental Resources v. Pa. Power Co., 461 Pa. 675, 337 A.2d 823 (1975). The findings of fact made by the trial court will not be disturbed unless they are unsupported by competent evidence or are demonstrably capricious. Hostetter v. Hoover, 378 Pa.Super. 1, 6, 547 A.2d 1247, 1250 (1988), allocatur denied, 523 Pa. 642, 565 A.2d 1167 (1989), quoting Rosen v. Rittenhouse Towers, 334 Pa.Super. 124, 129, 482 A.2d 1113, 1116 (1984).

In the instant case, the chancellor found that the purchase of the Ashbourne Road property had been financed by proceeds from the sale of Davis’s home on East Slocum Street and moneys borrowed by Davis from Jefferson Bank. The loan was secured by a mortgage on the residence and was being repaid by monthly payments made by Davis, who also paid the costs of maintaining and insuring the real estate. The chancellor rejected a requested finding by Roberson that Davis had agreed, either expressly or by implication, to convey a one-half interest in the real estate to her. The chancellor also rejected appellant’s contention that a partnership or joint venture had been created with respect to such real estate. The chancellor’s findings are supported by the record and are binding upon a reviewing court.

In view of these findings, the chancellor did not err in concluding that Roberson was not entitled to construct a trust with respect to the Ashbourne Road property. “A constructive trust arises where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it.” Denny v. Cavalieri, 297, Pa.Super. 129, 133, 443 A.2d 333, 335 (1982). “Such a trust may arise where there is a breach of confidential relationship by the transferee, or it may arise out of circumstances evidencing fraud, duress, undue influence or mistake.” Id. The controlling factor is not the specific intent between the parties to create a constructive trust but whether imposition of a constructive trust is necessary to prevent unjust enrichment. See: DePaul v. DePaul, 287 Pa.Super. 244, 248, 429 A.2d 1192, 1194 (1981). See also: Stauffer v. Stauffer, 465 Pa. 558, 351 A.2d 236 (1976). One who seeks to construct a trust bears a heavy burden of proof; the evidence must be “clear, direct, precise and convincing.” Masgai v. Masgai, 460 Pa. 453, 460, 333 A.2d 861, 865 (1975), quoting Policarpo v. Policarpo, 410 Pa. 543, 189 A.2d 171 (1963); Wosche v. Kraning, 353 Pa. 481, 483, 46 A.2d 220, 222 (1946). “[U]nless the evidence of the existence óf [a constructive trust] is of the highest probative value, equity should not act to convert an absolute ownership into an estate of lesser quality.” Masgai v. Masgai, supra, 460 Pa. at 460, 333 A.2d at 865, quoting Sechler v. Sechler, 403 Pa. 1, 7, 169 A.2d 78, 81 (1961). Here, there was neither a confidential relationship between the parties nor evidence of fraud or other, circumstances requiring the construction of a trust in order to do equity and avoid unjust enrichment. See: McCall v. Frampton, 99 Misc.2d 159, 415 N.Y.S.2d 752 (1979). Appellant did not become entitled to an interest in Davis’s real estate by virtue of her relationship with him or because, on occasion, she purchased groceries or performed services which benefitted the occupants of the residence. See: Taylor v. Polackwich, 145 Cal.App.3d 1014, 194 Cal.Rptr. 8 (1983); Keene v. Keene, 57 Cal.2d 657, 21 Cal.Rptr. 593, 371 P.2d 329 (1962) (services as housekeeper and cook insufficient to create trust in real estate); Baskett v. Crook, 86 Cal.App.2d 355, 195 P.2d 39 (1948); Smith v. Smith, 108 So.2d 761 (Fla. 1959) (amount contributed in defraying mutual living expenses insufficient to create interest in real estate owned by other cohabitant).

The parties to this action did not enter a marital relationship. The relationship, rather, was meretricious. Consequently, appellant did not acquire a claim to Davis’s real estate by virtue of cohabitation. Knauer v. Knauer, 323 Pa.Super. 206, 228, 470 A.2d 553, 564 (1983). The trial court found that there was no agreement that appellant should have or acquire an interest in Davis’s real estate and neither a partnership nor joint venture with respect thereto. These findings are fully supported. It follows, then, that the chancellor did not abuse his discretion by rejecting appellant’s claim to an interest in Davis’s real estate.

There is no merit in appellant’s argument that the chancellor’s refusal to construct a trust of the real estate was inconsistent with the award of the Mercedes vehicle to her. The circumstances surrounding the real estate and those surrounding the automobile were different. The cost of the automobile had been paid by Roberson, but the vehicle had been titled in Davis as a matter of convenience because Roberson’s credit problems had prevented her from obtaining a loan in her name. Thus, it was Roberson who was the real owner of this vehicle. The title to the real estate, on the other hand, had been placed in Davis’s name because he was the purchaser and bona fide owner thereof.

The swimming pool was placed on the real estate under circumstances which differed from the acquisition of either the car or the real estate. The initial cash involve-meat, the chancellor found, had been a gift by Roberson to Davis. After the pool had been installed, it was Davis who finished making the payments. The chancellor’s findings are supported by competent evidence. In view of these facts, the chancellor did not err in refusing to require that appellant be reimbursed or otherwise compensated for her initial outlays.

Finally, the chancellor did not err when he allowed the appellee-defendant to amend his answer to deny more specifically the averments of appellant’s complaint. A party, by leave of court, may amend his pleading at any time. Pa,„R.C.P. 1033.

Grant of leave to amend is limited only to a consideration of whether or not it might unduly prejudice an adverse party. Sullivan v. Allegheny Ford Truck Sales, Inc., 283 Pa.Super. 351, 423 A.2d 1292 (1980). Prejudice has been defined by this court as “something more than a detriment to the other party, ‘since any amendment almost certainly will be designed to strengthen the legal position of the amending party and correspondingly to weaken the position of the adverse party.’ ” Sands v. Forrest, 290 Pa.Super. 48, 53, 434 A.2d 122, 125 (1981). The decision of the lower court that amendment will be allowed and will not unduly prejudice the adverse party will only be reversed upon a showing of a clear abuse of discretion. Junk v. East End Fire Department, 262 Pa.Super. 473, 396 A.2d 1269 (1978).

Winterhalter v. West Penn Power Co., 355 Pa.Super. 17, 22, 512 A.2d 1187, 1189 (1986). In determining the existence of prejudice, a court may be guided by the teaching of the Pennsylvania Supreme Court in Bata v. Central-Penn National Bank of Philadelphia, 448 Pa. 355, 293 A.2d 343 (1972), cert. denied, 409 U.S. 1108, 93 S.Ct. 910, 34 L.Ed.2d 689 (1973). The Court there said:

All amendments have this in common: they are offered later in time than the pleading which they seek to amend. If the amendment contains allegations which would have been allowed inclusion in the original pleading (the usual case), then the question of prejudice is presented by the time at which it is offered rather than by the substance of what is offered. The possible prejudice, in other words, must stem from the fact that the new allegations are offered late rather than in the original pleading, and not from the fact that the opponent may lose his case on the merits if the pleading is allowed____

Id., 448 Pa. at 380, 293 A.2d at 357 (footnote omitted).

In the instant case, the averments of the complaint had been denied in the answer filed by appellee. Appellant argued, however, that the denials were too general and that the averments of the complaint, therefore, should be deemed admitted. The chancellor rejected appellant’s argument and allowed the answer to be amended to deny more specifically the averments of the complaint. This enabled the chancellor to receive evidence on disputed issues and make a factual determination unfettered by a technical interpretation of the rules of pleading. This was not an abuse of discretion.

The final decree is affirmed.

      . At this time, Roberson owned her own home at 1125 E. Upsal Street, Philadelphia.

      . The evidence was that Davis had purchased the property in order to make a home for his aged mother.

      . There was a factual dispute as to whether appellant lived with Davis continuously or whether she stayed with him, in his home, on weekends. The chancellor found it unnecessary to resolve this issue.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    580 A.2d 42
    COMMONWEALTH of Pennsylvania v. Charles G. MYRTETUS, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 23, 1990.
    Decided Aug. 22, 1990.

      David G. Ennis, Norristown, for appellant.
    Alan M. Rubenstein, Dist. Atty., Doylestown, for Com., appellee.
    Before CAVANAUGH, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

Appellant Charles Myrtetus appeals judgment of sentence entered January 12, 1990, following a jury trial in which appellant was found guilty of driving under the influence, pursuant to being stopped at a formalized roadblock program instituted by the Upper Southampton Township Police Department. Appellant was sentenced to a term of imprisonment of not less than 30 days nor more than 12 months.

On appeal, appellant first challenges the constitutionality of drunk driving roadblocks under both the Pennsylvania and United States Constitutions as unreasonable searches and seizures.

In Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035 (1987), our Supreme Court stated as dicta that a drunken driver roadblock conducted substantially in compliance with suggested guidelines would not be violative of the Pennsylvania Constitution. The Court, however, found that the provisions of section 6308(b) of the Vehicle Code did not authorize the police to conduct such roadblocks. The Court described appropriate guidelines as follows:

[T]he conduct of the roadblock itself can be such that it requires only a momentary stop to allow the police to make a brief but trained observation of a vehicle’s driver, without entailing any physical search of the vehicle or its occupants. To avoid unnecessary surprise to motorists, the existence of a roadblock can be so conducted as to be ascertainable from a reasonable distance or otherwise made knowable in advance. The possibility of arbitrary roadblocks can be significantly curtailed by the institution of certain safeguards. First, the very decision to hold a drunk-driver roadblock, as well as the decision as to its time and place, should be matters reserved for prior administrative approval, thus removing the determination of those matters from the discretion of police officers in the field. In this connection it is essential that the route selected for the roadblock be one which, based on local experience, is likely to be travelled by intoxicated drivers. The time of the roadblock should be governed by the same consideration. Additionally, the question of which vehicles to stop at the roadblock should not be left to the unfettered discretion of police officers at the scene, but instead should be in accordance with objective standards prefixed by administrative decision.

Following the arrests in Tarbert, the legislature amended section 6308(b) to provide:

(b) Authority of police officer. — Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has articulable and reasonable grounds to suspect a violation of this title, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.
As amended 1983, July 22, P.L. 122, No. 32, § 4, imd. effective; 1985, June 19, P.L. 49, No. 20, § 10, effective in 60 days.

75 Pa.C.S. § 6308(b).

In Commonwealth v. Fioretti, 371 Pa.Super. 535, 538 A.2d 570 (1988), this Court was presented with the opportunity to decide a case with the benefit of both the Tarbert guidelines and amended section 6308(b), and found roadblocks established in compliance therewith would be constitutional.

Appellant concedes the roadblock involved instantly was lawful under existing Pennsylvania law, yet still contends the roadblock amounted to an unreasonable search and seizure. We therefore analyze appellant’s claim in light of the recent Supreme Court decision in Michigan Dept. of State Police, et al. v. Sitz, et al., 496 U.S.-, 110 S.Ct. 2481, 110 L.Ed.2d 412.

Sitz presents a nearly identical situation to the case at bar, in that guidelines were created setting forth procedures governing roadblock operations, site selection amJl publicity.

Under the guidelines, checkpoints would be set up at selected sites along state roads. All vehicles passing through a checkpoint would be stopped and their drivers briefly examined for signs of intoxication. In cases where a checkpoint officer detected signs of intoxication, the motorist would be directed to a location out of the traffic flow where an officer would check the motorist’s driver’s license and car registration and, if warranted, conduct further sobriety tests. Should the field tests and the officer’s observations suggest that the driver was intoxicated, an arrest would be made. All other drivers would be permitted to resume their journey immediately.

Id. at-, 110 S.Ct. at 2484.

In deciding Sitz, the Court utilized a balancing analysis set forth in United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), in approving highway checkpoints for detecting illegal aliens. The Martinez-Fuerte balancing test weighed the intrusion of a particular law enforcement practice on the individual’s fourth amendment interests against its promotion of legitimate governmental interests.

As to the government interest in preventing drunken driving, the Court stated, “No one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it.” Sitz, supra 496 U.S. at ——, 110 S.Ct. at 2485.

Conversely, the weight bearing on the other scale- — the measure of the intrusion on motorists stopped briefly at sobriety checkpoints — is slight. We reached a similar conclusion as to the intrusion on motorists subjected to a brief stop at a highway checkpoint for detecting illegal aliens. See [United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) ], supra, at 558 [96 S.Ct. at 3083]. We see virtually no difference between the levels of intrusion on law-abiding motorists from the brief stops necessary to the effectuation of these two types of checkpoints, which to the average motorists would seem identical save for the nature of the questions the checkpoint officers might ask. The trial court and the Court of Appeals, thus, accurately gauged the “objective” intrusion, measured by the duration of the seizure and the intensity of the investigation, as minimal.

Id.

The Court also reiterated its finding in Martinez-Fuerte that the subjective intrusion — the generating of concern or even fright on the part of lawful travelers — is appreciably less in the case of a checkpoint stop because “the motorist can see that other vehicles are being stopped, he can see visible signs of the officers’ authority, and he is much less likely to be frightened or annoyed by the intrusion.” Martinez-Fuerte, supra, 428 U.S. at 558, 96 S.Ct. at 3083. In Sitz, “checkpoints are selected pursuant to the guidelines, and uniformed police officers stop every approaching vehicle. The intrusion resulting from the brief stop át the sobriety checkpoint is for constitutional purposes indistinguishable from the checkpoint stops we upheld in Martinez-Fuerte.” Sitz, supra 496 U.S. at-, 110 S.Ct. at 2487.

Although appellant argues sobriety checkpoints aré an ineffective means of combatting drunken driving, as evidenced by appellant’s being the only person arrested on April 29, 1989, and this ineffectiveness heightens the intrusiveness of the stop, the Supreme Court was not persuaded by this argument in Sitz. The Court defined effectiveness as “the degree to which the seizure advances the public interest.” Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357, 362 (1979).

This passage from [Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357, 362 (1979)] was not meant to transfer from politically accountable officials to the courts the decision as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger. Experts in police science might disagree over which of several methods of apprehending drunken drivers is preferable as an ideal. But for purposes of Fourth Amendment analysis, the choice among such reasonable alternatives remains with the governmental officials who have a unique understanding of, and a responsibility for, limited public resources, including a finite number of police officers.

Sitz, supra 496 U.S. at-, 110 S.Ct. at 2487.

Applying the above state and federal guidelines to the case at bar, we cite with approval a portion of the trial court Opinion dealing with the procedures implemented, leading up to appellant’s arrest.

At the suppression hearing in the instant case, Walter Stevens, Chief of Police of Upper Southamtpon [sic] Township, testified that he decided to institute a roadblock from Friday evening, April 28, 1989, to the early hours of Saturday morning, April 29, 1989, and that it should be located at 939 Street Road. The Chief testified that he had selected the particular location and the time of the roadblock based upon a statistical review of prior DUI incidents and times and places of DUI occurrences. He also stated that the selected roadblock location, time and day of the week were among the highest for DUI arrests as shown by the study.
A press release was prepared and sent to the local newspaper and published on April 23, 1989 announcing that the roadblock checkpoint would be established for 10:00 p.m. on the following Friday. The press release detailed the procedures which would be used in the test-' ing program. * * * * * *
The Chief testified that signs were, in fact, established at the checkpoint, that 17 officers were involved; that every fifth car was stopped; that the area was illuminated by fire truck lights and advance warning signs; that the stops were kept brief; that only very basic questions were asked of each stopped driver; and that if there was no problem, the drivers were immediately released.
# $ >jc * J¡C
Officer Mark Zielinski testified at the suppression hearing that at 1:23 a.m. he was one of about eight or ten officers at the scene, that the defendant was one of the vehicles randomly selected in accordance with the Chiefs every fifth car formula. He noted that the defendant was behind the wheel of a silver Toyota Cressida and was alone. When Zielinski conversed with the defendant, he noted immediately that the defendant had bloodshot eyes, a moderate odor of alcohol and exhibited slurred speech. Believing that he was possibly under the influence of alcohol, he requested the defendant to exit the vehicle and submit to a pre-arrest breath test under § 1547(k) of the Vehicle Code. The reading on the “Alcosensor” equipment, which had been preapproved as a testing device, noted a reading of .11%.
Thereafter, the defendant was advised of the implied consent provisions of § 1547 and escorted to police headquarters where Officer Conaway administered the formal breathalyzer test.
At the conclusion of the suppression hearing, we found that the roadblock guidelines had been followed and refused to suppress. At trial, Officer Conaway testified as to the proper certification of the equipment and his experience over 20 years in operating breath test machines. After a 20 minute waiting period to warm up the equipment, the implied consent advice was again given to the defendant who consented to the test. The test records showed BAC readings of .140% at 1:55 a.m. on the first test and .146% at 1:57 a.m. on the second.

(Slip Op., Kelton, J., 12/14/89, pp. 4-6.)

From our examination of the record, we agree with the trial court that the roadblock program carried out by the Upper Southampton Township Police Department met the constitutional requirements imposed under the Pennsylvania and United States Constitutions, and therefore appellant’s argument is without merit.

Appellant next argues the trial court erred in not admitting into evidence the results of a preliminary breath test where such results are exculpatory and where appellant and not the Commonwealth seeks to offer or elicit the results of the test. Appellant presented expert testimony from a toxicologist that at the time appellant was stopped by the police, his blood alcohol level was below .10 per cent. The toxicologist’s opinion was that alcohol was being rapidly absorbed into appellant’s blood stream, accounting for the increase in the second of two intoximeter tests from .140 per cent to .146 per cent in a period of two minutes. To corroborate appellant’s theory his blood alcohol level was increasing and at the time he was driving it had not yet reached the legal limit of .10 per cent, appellant attempted to introduce the result of the preliminary breath test reading of .11 per cent, obtained seven minutes after appellant was stopped.

The trial court based its decision on a section of the Vehicle Code dealing with chemical testing to determine the alcoholic content of blood. The statute provides in pertinent part:

(k) Prearrest breath test authorized. — A police officer, having reasonable suspicion to believe a person is driving or in actual physical control of the movement of a motor vehicle while under the influence of alcohol, may require that person prior to arrest to submit to a preliminary breath test on a device approved by the Department of Health for this purpose. The sole purpose of this pre liminary breath test is to assist the officer in determining whether or not the person should be placed under arrest The preliminary breath test shall be in addition to any other requirements of this title. No person has any right to expect or demand a preliminary breath test. Refusal to submit to the test shall not be considered for purposes of subsections (b) and (e).

75 Pa.C.S. § 1547(k) (emphasis added).

While appellant concedes the intent of section 1547(k) is to preclude the Commonwealth from using the results from a preliminary breath test to obtain a conviction, but only to determine probable cause to arrest, appellant also argues the statute should not preclude appellant from electing to introduce the test results. However, we find another subsection of section 1547 instructive on this issue.

(c) Test results admissible in evidence. — In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 3731 or any other violation of this title arising out of the same action, the amount of alcohol or controlled substance in the defendant’s blood, as shown by chemical testing of the person’s breath, blood or urine, which tests were conducted by qualified persons using approved equipment, shall be admissible in evidence.
(1) Chemical tests of breath shall be performed on devices approved by the Department of Health using procedures prescribed jointly by regulations of the departments of Health and Transportation. Devices shall have been calibrated and tested for accuracy within a period of time and in a manner specified by regulations of the Departments of Health and Transportation. For purposes of breath testing, a qualified person means a person who has fulfilled the training requirement in the use of the equipment in a training program approved by the Departments of Health and Transportation. A certificate or log showing that a device was calibrated and tested for accuracy and that the device was accurate shall be presumptive evidence of those facts in every proceeding in which a violation of this title is charged.

75 Pa.C.S. § 1547(c) (emphasis added).

In attempting to ascertain the meaning of a statute, we are required to consider the intent of the legislature and are permitted to examine the practical consequences of a particular interpretation. Commonwealth v. Stewart, 375 Pa.Super. 585, 544 A.2d 1384 (1988). We are to presume the legislature did not intend a result that is unreasonable. Commonwealth v. Martorano, 387 Pa.Super. 151, 563 A.2d 1229 (1989).

We agree with the Commonwealth that while the preliminary breath test device in question is an approved device, it is not one which is calibrated and tested for accuracy. The preliminary blood test serves only as an aid to police in determining probable cause for arrest. Appellant or the Commonwealth may introduce into evidence later the results of chemical tests of breath or blood taken after arrest. This evidence is admitted because of its presumptive validity and reliability. No such presumption can be made from the preliminary breath test, nor do we find the legislature intended to create such a presumption. We therefore find no error by the trial court in excluding evidence of the preliminary breath test, and this claim is without merit.

Judgment of sentence affirmed.

      . 75 Pa.C.S. § 3731(a)(4).

      . Michigan Dept. of State Police, et al. v. Sitz, et al., 496 U.S. ——, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), had not yet been decided by the Supreme Court at the time this case was submitted on appeal. Appellant, therefore, did not have the benefit of the Court’s Opinion and in his brief relied on the Michigan Court of Appeals decision which found roadblocks unconstitutional.


text:
    580 A.2d 314
    COMMONWEALTH of Pennsylvania v. Harvey E. SCHAUFFLER, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 11, 1989.
    Filed Jan. 19, 1990.
    Reargument Denied March 23, 1990.
    Petition for Allowance of Appeal Denied Oct. 17, 1990.

      Kingsley A. Jarvis, Norristown, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before WIEAND, TAMILIA and HESTER, JJ.
   WIEAND, Judge:

Harvey E. Schauffler, Jr., a lawyer, was tried nonjury and was found guilty of bribery in official and political matters in violation of 18 Pa.C.S. § 4701(a)(3) and criminal conspiracy in violation of 18 Pa.C.S. § 903(a)(1). He was sentenced the same day to pay a fine of five thousand ($5,000.00) dollars and was placed on probation for concurrent terms of five years each. Post-trial motions were filed within ten days thereafter and were denied one hundred and nine (109) days after sentence had been imposed. Within thirty days after the denial of his post-trial motions, Schauffler filed a direct appeal to the Superior Court.

Because of the unusual procedural course which this action took, we must first determine whether this Court has jurisdiction to hear the appeal. A direct appeal in a criminal matter, as a general rule, may only be taken from the judgment of sentence. Commonwealth v. Hurst, 367 Pa. Super. 214, 532 A.2d 865 (1987); Commonwealth v. Rea gan, 330 Pa.Super. 417, 479 A.2d 621 (1984). Moreover, an appeal must be filed within thirty (30) days after sentence has been imposed. Pa.R.A.P. 903(a). In this case, Schauffler was found guilty on June 10, 1988, and sentence was imposed the same day. Post-trial motions filed within ten days thereafter were not decided until September 12, 1988, and an appeal was filed on September 27, 1988. It is readily apparent that this appeal was not filed within thirty (30) days after sentencing.

We conclude that the appeal was nevertheless proper. The trial court should not have imposed sentence prior to the filing and disposition of defendant’s post-trial motions. The practice followed in this case has been condemned because it is in violation of established procedural law. Commonwealth v. Shinn, 368 Pa.Super. 436, 439 n. 1, 534 A.2d 515, 516 n. 1 (1987); Commonwealth v. Hurst, supra; Commonwealth v. Eliason, 353 Pa.Super. 321, 323, 509 A.2d 1296, 1297 (1986). The proper procedure is to allow the defendant a period of ten days within which to file a motion for post-trial relief and to delay sentencing until the motion, if filed, has been decided. Commonwealth v. Shinn, supra; Commonwealth v. Pringle, 304 Pa.Super. 67, 75 n. 1, 450 A.2d 103, 107 n. 1 (1982). Because the trial court did not follow this procedure, we will not quash the defendant’s appeal but will entertain it and dispose of it on the merits.

Section 4701(a)(3) of the Crimes Code, 18 Pa.C.S. § 4701(a)(3), provides that “a person is guilty of bribery, a felony of the third degree, if he offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another ... any benefit as consideration for a violation of a known legal duty as public servant or party official.”

The evidence, read in a light most favorable to the Commonwealth, showed that appellant was counsel for William Greco, who had been charged with driving while under the influence of alcohol. During a conversation with Ernest Lakovic, the arresting police officer, immediately prior to the preliminary hearing, appellant said that Greco “had a couple thousand dollars to spread around between you and the squire.” Lakovic interpreted this as an offer for a bribe and went to the District Attorney. When Lakovic thereafter met with appellant and his client, Lakovic was wearing a body wire. As soon as Greco handed Lakovic cash in the amount of $1,000.00, police moved in and placed appellant under arrest.

Appellant contends that the evidence failed to show a violation of 18 Pa.C.S. § 4701(a)(3) because Lakovic was merely a witness against him and not a public servant performing a government function. He relies on 18 Pa.C.S. § 4501, which defines public servant as “any officer or employee of government, including members of the General Assembly and judges, and any person participating as juror, advisor, consultant or otherwise, in performing a governmental function; but the term does not include witnesses.” If there was to be a prosecution for offering a bribe to a witness, he contends, it should have been brought under 18 Pa.C.S. § 4952, which makes it a crime to tamper with witnesses.

Officer Lakovic, however, was more than a mere witness. He was also the arresting and prosecuting officer; it was he who had initiated the prosecution by filing a formal complaint and who was responsible for any continuing investigation. These were duties imposed by law. When one thousand dollars was paid to Lakovic, the trier of the facts could find, the money was paid because Lakovic was the arresting officer and in an attempt to influence him in the performance of his official duties as prosecuting officer. As a public servant involved in a criminal action in his official capacity, Lakovic was not divested of his status as a public servant because his duties required that he give testimony against the offender. A witness has been excluded from the definition of “public servant” in order to establish that the role of “witness” does not convert a citizen to a public servant. It was not the intent of the legislature to change the status of a public servant merely because his duties require that he become a witness in a criminal prosecution.

Appellant’s argument that Lakovic had no duty to “continue the prosecution” because, after the prosecution had been commenced, he became merely a witness is lacking in merit. Lakovic’s duties required him not only to testify at the preliminary hearing but to continue investigating the offense as necessary and to provide information to the prosecuting attorney. In Commonwealth v. Clarke, 311 Pa.Super. 446, 457 A.2d 970 (1983), the Superior Court held that the duty of a police officer to perform an investigatory function was a known legal duty. Therefore, to pay a police officer to overlook the after-hour sales of alcohol at a night club was a violation of 18 Pa.C.S. § 4701(a)(3). Cf. Commonwealth v. Taraschi, 327 Pa.Super. 179, 475 A.2d 744 (1984) (conspiracy to bribe local police officers to overlook illegal gambling and zoning violations). It is as much a violation of the bribery section of the statute to offer money to a police officer to discontinue a prosecution as it is to offer money to a police officer to refrain from initiating the prosecution.

We also reject appellant’s argument that there was no quid pro quo or agreed upon exchange for the payment of money to Officer Lakovic. The comment to section 240.1 of the Model Penal Code, the section from which 18 Pa.C.S. § 4701 was derived, observes that the offense does not require a bilateral agreement in which there has been a meeting of the minds. Rather,

“[i]t is sufficient if the actor believes that he has agreed to confer or agreed to accept a benefit for the proscribed purpose, regardless of whether the other party actually accepts the bargain in any contract sense____ The evils of bribery are fully manifested by the actor who believes that he is conferring a benefit in exchange for official action, no matter how the recipient views the transaction____ Each defendant should be judged by what he thought he was doing and what he meant to do, not by how his actions were received by the other party.” (emphasis in original).

Appellant’s reliance on the decision in Commonwealth v. Lynch, 270 Pa.Super. 554, 411 A.2d 1224 (1979) is misplaced. In the first place, the lead opinion in Lynch failed to gather a majority and, therefore, is not precedential. More importantly, Lynch is factually distinguishable from the instant case. There, the defendants were state officers to whom statements had been made that money was available in connection with obtaining an admission to dental school. A guilty finding was reversed on appeal because there had been no evidence that the public officials had “solicited, accepted, or agreed to accept” any money for their efforts on behalf of the applicant. In the instant case, appellant not only offered but also facilitated the actual payment of money to the arresting officer, and the trial court, as the trier of the fact, could find that the money was offered and paid in exchange for an expected “fixing” or termination of the prosecution.

During the taped conversation, appellant first asked Lakovic if he was “wired.” The men then discussed Lakovic’s relationship with the District Attorney and the District Justice and what Lakovic could do to help Greco. Appellant wrote the figure 800 on a pad and held it out to Lakovic, who reminded appellant that he had previously offered a thousand dollars. Appellant then crossed out the figure which he had written and wrote 1000 on the pad. This amount was then paid to Lakovic.

The trial court concluded that this evidence, considered with appellant’s prior remark that his client had money to “spread around,” established inescapably that appellant had offered money for the purpose of inducing Lakovic to violate his duty as a public official in the prosecution of Greco for driving while under the influence of alcohol. There is, in this record, no basis for disturbing the trial court’s finding.

Appellant’s contention that a fatal variance exists between the averments of the information and the Commonwealth’s proof at trial must also fail. A variance between the information and the proof at trial “is not fatal unless it could mislead the defendant at trial, involves an element of surprise prejudicial to the defendant’s efforts to prepare his defense, precludes the defendant from anticipating the prosecution’s proof or impairs a substantial right.” Commonwealth v. Ohle, 503 Pa. 566, 589, 470 A.2d 61, 73 (1983), quoting Commonwealth v. Pope, 455 Pa. 384, 391, 317 A.2d 887, 890 (1974). In the instant case, the first count of the information alleged that appellant

offered, conferred or agreed to confer upon Police Officer Ernest Lakovic, a benefit, namely, $1,000.00, as consideration for recipient’s violation of a known legal duty, namely, continuing the prosecution of William Greco for driving under the influence of alcohol, said recipient acting as a police officer for Elizabeth Township Police Department, in violation of Section 4701(a)(3) of the Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa. C.S. § 4701(a)(3).

The term “continuing” was used in the manner in which a layman would use it, meaning “to be steadfast or constant” in the prosecution and not in the legal sense of delaying by postponement. The Commonwealth’s proof was consistent and not at variance with this averment of the information.

Appellant next contends that he was entrapped by Officer Lakovic. The defense of entrapment is defined at 18 Pa.C.S. § 313, in pertinent part, as follows:

(a) A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by either: (1)____ or (2) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.”
(b) Except as provided in subsection (c) of this section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of evidence that his conduct occurred in response to an entrapment.

This rule adopts an objective standard. It focuses on police conduct and tactics rather than upon a defendant’s predisposition to commit the criminal act. Commonwealth v. Weiskerger, 520 Pa. 305, 554 A.2d 10 (1989); Commonwealth v. Lindenmuth, 381 Pa.Super. 398, 554 A.2d 62 (1989). “In order to succeed on the defense of entrapment, it must be shown that police conduct would have induced an innocent person to commit [the] crime.” Commonwealth v. Wilson, 381 Pa.Super. 253, 258, 553 A.2d 452, 454 (1989), quoting Commonwealth v. Stokes, 264 Pa.Super. 515, 518, 400 A.2d 204, 206 (1979).

In this case, it was appellant who first suggested that his client had money to “spread around,” to which Lakovic replied that appellant “[had] to be kidding” and walked away. At this point in time, Lakovic had done nothing to induce appellant to commit a crime. After Lakovic had related the incident to the District Attorney, he again spoke with appellant and apologized for his earlier conduct. This conduct by a policeman was not outrageous; it was not calculated to induce an innocent person to offer a bribe. “Merely affording opportunities or facilities for the commissionof a crime by one who already [has] the criminal intent to engage in such a crime does not defeat the prosecution.” Commonwealth v. Lee, 262 Pa.Super. 218, 221, 396 A.2d 724, 725 (1978). See also: Commonwealth v. Loccisano, 243 Pa.Super. 522, 366 A.2d 276 (1976). Here, appellant did not establish entrapment as a matter of law. His defense was properly an issue for the trier of the fact, who chose to reject it. The record discloses no basis for disturbing the trial court’s finding.

Finally, appellant argues that his trial counsel was constitutionally ineffective. The law presumes that counsel was effective; and, therefore, the burden is on a convicted defendant to prove that his counsel was ineffective. Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984). In determining the effectiveness of counsel, we examine first the underlying claim to see if it has arguable merit. If so, we next determine whether counsel’s action or failure to act was reasonably calculated to serve his client’s interest. Finally, “even if counsel’s performance is determined to have had no reasonable basis, the defendant must also demonstrate that the ineffectiveness caused actual prejudice to him in the outcome of the proceedings.” Commonwealth v. Sparks, 372 Pa.Super. 463, 465, 539 A.2d 887, 888 (1988). See: Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Appellant contends that counsel’s misunderstanding of the bribery section of the Crimes Code caused him to adopt a strategy by which he attempted to show the absence of an agreement and, therefore, did not attempt to keep the trial court from hearing the taped conversation between Lakovic and himself. There is no substantive merit in this claim. The Commonwealth did not prove the conversation by a transcript of the recorded conversation but by the taped conversation itself. After the taped conversation had been properly identified and authenticated by Lakovic, it became admissible in evidence. It was not excludable under the best evidence rule. Cf. Commonwealth v. Voci, 393 Pa. 404, 143 A.2d 652 (1958); Durkin v. Equine Clinics, Inc., 313 Pa.Super. 75, 459 A.2d 417 (1983).

We also find nothing in counsel’s trial strategy that was so unreasonable as to require a new trial. The Commonwealth’s evidence against appellant was fairly strong, and his counsel cannot be faulted for advancing a technical defense based on a strict interpretation of the bribery and entrapment sections of the Crimes Code. Indeed, appellant is unable to suggest a defense which could reasonably be expected to have been more successful.

Finally, appellant has inserted in his brief a paragraph in which he contends that the trial court erred in disallowing a question asked of Lakovic regarding his receipt of a witness fee for testifying at the preliminary hearing. This issue was not included in appellant’s statement of issues and appears to be an afterthought. In any event, we find no merit therein. The question referred to a collateral matter which the court, in its discretion, could properly exclude. Lakovic’s status as a public servant would not have been altered merely by his receipt of a witness fee for attending the preliminary hearing.

Finding no basis for disturbing the findings of the trial court, the judgment of sentence will be affirmed.

Affirmed.

HESTER, J., did not participate in the consideration or decision of this appeal.


author: KELLY, Judge: TAMILIA, Judge, CERCONE, Judge,

text:
    580 A.2d 320
    Joel BARNDT, Appellee, v. Kathleen Ann BARNDT, Appellant. (Two Cases)
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1989.
    Filed Aug. 30, 1990.

      Amy Ershler, Bloomsburg, for appellant.
    Susan Muse Hill, Bloomsburg, for appellee.
    Before TAMILIA, KELLY and CERCONE, JJ.
   KELLY, Judge:

Appellant, Kathleen Barndt, appeals from an order of the Court of Common Pleas of Columbia County. The order granted primary physical custody of her sons, Michael and Kristopher, to their father, Joel Barndt, thus modifying a prior decree issued in North Dakota which had granted the appellant primary physical custody. While the appeal raises questions of substantive error, the sole issue addressed in this opinion is whether the courts of Pennsylvania had subject matter jurisdiction to hear the modification petition of the appellee.

Initially, we consider whether subject matter jurisdiction exists under Pennsylvania law. We find that this determination would require remand for factual determinations not made by the trial court. We note that the present record appears to demonstrate an absence of subject matter jurisdiction under Pennsylvania law. We find remand unnecessary, however, as the undisputed facts establish that even if subject matter jurisdiction could be asserted under Pennsylvania law, a federal statute nonetheless bars assertion of such jurisdiction under the facts of the instant case. Consequently, we vacate the orders of the trial court, and relinquish jurisdiction of this case to the courts of North Dakota.

FACTS AND PROCEDURAL HISTORY

The relevant facts may be accurately summarized as follows. Joel and Kathleen Barndt were married in 1977 and divorced in 1983. North Dakota had been the marital domicile. During the course of their marriage, Joel adopted Michael, who was Kathleen’s child from a former marriage, and Kristopher was born to the couple. Following the divorce, Kathleen, who had been awarded custody, continued living in North Dakota with the boys. Joel continued to live in North Dakota until December 1985, when he moved into his parents’ home in Pennsylvania. In June 1986, the boys came to Pennsylvania for an extended visit which had been arranged and agreed upon by Joel and Kathleen. In March 1987, Joel refused to return the children as agreed and instead petitioned the Columbia County court for custody which was granted by order entered April 10, 1987. The order did not address the jurisdiction of the court.

Subsequent to this change in custody Kathleen appealed to the North Dakota courts to prevent enforcement of the Pennsylvania decree. While not agreeing with this Commonwealth’s assumption of jurisdiction, North Dakota declined to take action conflicting with that of the Pennsylvania courts.

Finally, in May 1988, Kathleen Barndt was afforded a hearing in Columbia County to determine the best interests of Michael and Kristopher. Her appeal raised the deficiencies in the conduct of the hearing, quality of the evidence gathered and considered, as well as the deficiencies in the opinion of the trial court issued subsequent to the hearing. These substantive issues can not be reached here, as our review of the record reveals that the courts of Pennsylvania lacked subject matter jurisdiction in the initial proceeding modifying the North Dakota decree, and in all subsequent custody proceedings.

I. AUTHORITY TO RAISE SUBJECT MATTER JURISDICTION SUA SPONTE

In order to have the power to determine the right to custody as between litigants, a court must have subject matter jurisdiction over the person of the child. In re Sagan, 261 Pa.Super. 384, 396 A.2d 450 (1978); Commonwealth ex rel. Graham v. Graham, 367 Pa. 553, 80 A.2d 829 (1951). A court has the inherent power to determine on its own motion whether it has the jurisdiction to decide the cause before it. Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943); Harris-Walsh, Inc. v. Dickson City Borough, 420 Pa. 259, 216 A.2d 329 (1966). Therefore, even if a party fails to raise this issue by objection or exception in the court below, it is still the affirmative duty of our Court to consider the issue of subject matter jurisdiction. Cathcart v. Crumlish, 410 Pa. 253, 189 A.2d 243 (1963); Marcus v. Diulus, 242 Pa.Super. 151, 363 A.2d 1205 (1976). Orders of a court which is without proper subject matter jurisdiction are without legal force. Commonwealth v. Miller, 306 Pa.Super. 468, 452 A.2d 820 (1982); Commonwealth v. Boerner, 281 Pa.Super. 505, 422 A.2d 583 (1980).

II. APPLICATION OF PA UCCJA

In determining whether the trial court had subject matter jurisdiction we look first to Pennsylvania law. Unfortunately, because the question of jurisdiction was not addressed in the trial court, factual findings essential to a determination of whether subject matter jurisdiction could be asserted over this case under Pennsylvania law, were not made by the trial court. Though the trial court must make these factual determinations initially, we note that the present record contains no facts upon which jurisdiction could be based under Pennsylvania law.

This case involves an interstate custody dispute. The jurisdictional aspects of such disputes are problematic.

Under Article IV, § 1 of the United States Constitution, each state is required to give full faith and credit to the public acts, records and judicial proceedings of every other state. The codification of this constitutional mandate in 28 U.S.C. § 1738, and its precondition that there be finality of judgment, however, left the full faith and credit clause inapplicable to child custody orders. By necessity, such orders are modifiable in the rendering state when the best interest of the child so require; and therefore, such orders lack the necessary finality for protection under the full faith and credit clause. Kovacs v. Brewer, 356 U.S. 604, 78 S.Ct. 963, 2 L.Ed.2d 1008 (1958); New York ex rel Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947). Additionally, procedural defects may preclude enforcement under the full faith and credit clause of even arguably “final" custody orders. Ford v. Ford, 371 U.S. 187, 83 S.Ct. 273, 9 L.Ed.2d 240 (1962); May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953). The unfortunate result of this lack of recognition and enforcement of decrees of sister states was the constant uprooting and movement of children from state to state in their parents’ efforts to obtain or enforce conflicting custody orders.

In 1977 Pennsylvania became a signatory to the Uniform Child Custody Jurisdiction Act (UCCJA). The purpose of the Act was to provide stability to the home environment and to family relationships by discouraging continuing controversy over child custody and visitation; to avoid jurisdiction disputes; to deter abductions; to avoid relitigation; to promote comity; and to assure that litigation concerning child custody takes place ordinarily in the state in which the child and his family have the closest connection. Commonwealth ex rel. Zaubi v. Zaubi, 275 Pa.Super. 294, 418 A.2d 729 (1980), affirmed 492 Pa. 183, 423 A.2d 333 (1980).

In furtherance of its stated purposes, the UCCJA, as codified in Pennsylvania, (Pa.UCCJA), includes specific provision for situations in which another state has rendered a prior custody order. Under 42 Pa.C.S.A. § 5355, “[i]f a court of another state has made a custody decree, a court of this Commonwealth shall not modify that decree unless: (1) it appears to the court of this Commonwealth that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this subchapter or has declined to assume jurisdiction to modify the decree; and (2) the court of this Commonwealth has jurisdiction” (emphasis added).

The intention of the Pa.UCCJA in creating continuing jurisdiction in the initial decree state was to achieve greater stability of custody decrees, and to avoid forum shopping by insuring that the courts of only one state should have responsibility for the custody of a particular child. It was hoped that this would stabilize the home environment of children of divorced parents. In actual practice, as we see in the present case, continuing jurisdiction has often been ignored with jurisdiction assumed inappropriately by a court of a sister state, thus defeating in large measure the intent of the drafters of the unif orm act.

The provisions of 42 Pa.C.S.A. § 5344(a) set forth the conditions governing the exercise of jurisdiction over an interstate custody dispute under Pennsylvania law. Because the children had resided in Pennsylvania for the past six months, home state status existed to fulfill the requirement of 42 Pa.C.S.A. § 5344(a)(l)(i). We assume that 42 Pa.C.S.A. §§ 5344(a)(3), 5344(a)(4) do not apply. The record reveals that the father’s home was satisfactory for placement under 42 Pa.C.S.A. § 5344(a)(5), Hence, the entire question of whether jurisdiction may be asserted properly under Pennsylvania law, turns upon whether the requirement of 42 Pa.C.S.A. § 5344(a)(2) has been met.

Under 42 Pa.C.S.A. § 5344(a)(2), before a Pennsylvania court may assert jurisdiction it must find first that:

(2) it is in the best interest of the child that a court of this Commonwealth assume jurisdiction because:
(i) the child and his parents, or the child and at least one contestant, have a significant connection with this Commonwealth; and
(ii) there is available in this Commonwealth substantial evidence concerning the present or future care, protection, training, and personal relationships oí the child.

The Commissioners’ notes explaining the applicable section of the model UCCJA in pertinent part provide:

Paragraph (2) perhaps more than any other provision of the Act requires that it be interpreted in the spirit of the legislative purposes expressed in section 1. The paragraph was phrased in general terms in order to be flexible enough to cover many fact situations too diverse to lend themselves to exact description. , But its purpose is to limit jurisdiction rather than to proliferate it. The first clause of the paragraph is important: jurisdiction exists only if it is in the child’s interest, not merely the interest or convenience of the feuding parties, to determine custody in a particular state. The interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be maximum rather than minimum contact with the state.

Uniform Child Custody Jurisdiction Act § 3. (Emphasis added).

Paragraph (2) of the comments refers to what has been adopted as the maximum significant contacts test of 42 Pa.C.S.A. § 5344(a)(2). Courts of this Commonwealth have followed the rationale of the uniform act’s comments in construing the “significant contacts” test as a maximum significant contacts test. Aldridge v. Aldridge, 326 Pa.Super. 49, 473 A.2d 602 (1984) (Kentucky, not Pennsylvania, had proper jurisdiction as that forum would provide the optimum access to relevant evidence on child and family); Commonwealth ex rel Earl R.D. v. Linda H.S., 297 Pa.Super. 78, 443 A.2d 307 (1982) (Vermont had closer connection with child and mother and more substantial evidence was available there than in Pennsylvania). Indeed, Pennsylvania courts have gone so far as to prefer maximum significant contacts over home state status in determining jurisdiction. Bem v. Bem, 316 Pa.Super. 390, 463 A.2d 16 (1983) (significant connections and substantial evidence is sufficient for jurisdiction despite home state jurisdiction elsewhere); Matter of DLS, 278 Pa.Super. 446, 420 A.2d 625 (1980) (separate basis for jurisdiction exists because of Pennsylvania’s strong contacts with both parents and children and the availability of evidence); Joseph E.H. v. Jane E.H., 283 Pa.Super. 109, 423 A.2d 739 (1980) (significant contacts existed despite home state status elsewhere).

Application of the maximum significant contacts test to the facts of record in this case would seem to establish a clear absence of jurisdiction under Pennsylvania law. At the time of the petition the boys had only been in Pennsylvania 9 months, and their father had only been here 15 months. It does not appear that their mother had visited Pennsylvania with them for at least 8 years, as Kristopher (age 8 at the time) had never previously been in Pennsylvania, and had never even met his paternal grandparents. (N.T. at 308). Likewise, Michael (age 11) had not seen the paternal grandparents since before his third birthday. (N.T. at 39).

There was no evidence whatsoever concerning Kathleen’s custodial qualifications available in Pennsylvania. Joel, though raised in Pennsylvania, left at age 18. (N.T. at 9). He had only returned six months prior to the boys’ visit. (N.T. at 7). From the transcript of the hearing, it also appears little could be learned about Joel’s custodial qualifications in Pennsylvania at the time he petitioned for custody in March 1987, as he was unemployed most of the time between December 1985 through March 1987, and lived privately with his elderly parents without any apparent ties to the community which would be probative of his custodial qualifications. (N.T. at 38-39).

In view of the extreme paucity of evidence that was available in this Commonwealth in March of 1987 pertaining to the welfare of the children, the comparatively insignificant length of time spent here by the boys and their father, as opposed to the time spent by them in North Dakota, and the continued residence of the custodial parent in North Dakota, we find insufficient evidence upon which an exercise of jurisdiction could be premised by our courts.

However, because the record is arguably undeveloped in this respect, we would be extremely reluctant to vacate the trial court’s orders and relinquish jurisdiction to the North Dakota courts on this basis alone. Rather, prudence would seem to dictate a remand for a full inquiry and determination of the factual issues pertinent to the application of the maximum contacts test before rendering such a decision. Federal law, however, renders remand unnecessary.

III. APPLICATION OF FEDERAL LAW

The UCCJA’s intent was to create uniformity in the handling of jurisdictional disputes in custody cases. It achieved only limited success, due to the variations in the UCCJA as adopted by each of the states, and the differences in interpretation from court to court within those states. Consequently, there remained wide room for forum shopping, and the flow of children and cases from state to state continued. Federal legislation was finally enacted to bolster the UCCJA, and to enhance uniformity in interpretation and resolution of jurisdictional conflicts involving interstate custody disputes.

In 1980, the United States Congress enacted the Parental Kidnapping Prevention Act (PKPA). The title of the act is misleading and unfortunate, as it was by no means limited to criminal matters relating to kidnapping. Rather, one of the principle purposes of the PKPA was to protect the right of a decree issuing state to exercise exclusive continuing jurisdiction over its child custody orders in certain cases, and to channel custody litigation into the court having continuing jurisdiction by requiring states to give full faith and credit to the custody decrees of states retaining jurisdiction and preventing the issuance of competing decrees. Mark L. v. Jennifer S., 133 Misc.2d 454, 506 N.Y.S.2d 1020 (1986); States ex rel. Valles v. Brown, 97 N.M. 327, 639 P.2d 1181 (1981); Nielsen v. Nielsen, 472 So.2d 133 (La.App.1985). To this end, the PKPA established national standards to determine jurisdiction in interstate custody disputes. Voninski v. Voninski, 661 S.W.2d 872 (Tn.App.1982)

Congress’ intent to limit the states in the assumption of jurisdiction is evident from the relevant text of the statute:

§ 1738A. Full faith and credit given to child custody determinations
(a) The appropriate authorities of every State shall enforce according to its terms, and shall not modify except as provided in subsection (f) of this section, any child custody determination made consistently with the provisions of this section by a court of another State. * * * * * *

(c) A child custody determination made by a court of a State is consistent with the provisions of this section only if—

(1) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met:
(A) such state (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;
(B) (i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection which such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;
(C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse;
(D) (i) it appears that no other State would have jurisdiction under subparagraph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody of a child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or
(E) the court has continuing jurisdiction pursuant to subsection (d) of this section.
(d) The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.
(f) A court of a State may modify a determination of the custody of the same child made by a court of another State, if—
(1) it has jurisdiction to make such a child custody determination; and
(2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.

28 U.S.C. § 1738A. (Emphasis added).

First, the statute provides for recognition and enforcement of all decrees made consistent with the provisions of 28 U.S.C. § 1738A. Under 42 Pa.C.S.A. § 5355, the courts of this Commonwealth were permitted to decide whether the decree complied with “jurisdictional prerequisites substantially in accordance with this act.” The PKPA has eliminated the opportunity for a state to disregard a foreign decree because of differences in the state’s statutory enactment or jurisdictional interpretations of UCCJA provisions. 28 U.S.C. § 1738A(c)(l).

The PKPA also grants a priority to home state jurisdiction in initial custody petitions. Significant connections can only be used as a basis to assume jurisdiction if there is no home state, not as an alternative to the home state. 28 U.S.C. § 1738A(c)(2)(A) and (B).

Finally, and most importantly, the PKPA creates a separate basis for exclusive continuing jurisdiction in the state which issued the original decree. So long as the original decree state continues to have jurisdiction under its own law, and remains the residence of the child or any contes tant, it has exclusive continuing jurisdiction over all future custody actions involving that child. 28 U.S.C. § 1738A(c)(2)(E) and (d). That includes the exclusive right to issue modifications or changes in custody. 28 U.S.C. § 1738A(c)(2)(E), (d) and (f); see also Wheeler v. Buck, 452 So.2d 864 (Ala.Civ.App.1984); Heartfield v. Heartfield, 749 F.2d 1138 (5th Cir.1985); Kumar v. Santa Clara County Superior Court, 32 Cal.3d 689, 186 Cal.Rptr. 772, 652 P.2d 1003 (1982); Bahr v. Bahr, 442 N.Y.S.2d 687, 108 Misc.2d 920, aff. 458 N.Y.S.2d 247, 91 A.D.2d 1010, appeal denied 454 N.E.2d 1310, 60 N.Y.2d 640, 467 N.Y.S.2d 567 (1983); Flannery v. Stephenson, 416 So.2d 1034 (Ala.Civ.App. 1982); Yacco v. Durley, 457 N.Y.S.2d 384, 117 Misc.2d 69 (1982).

In spite of the basic similarities between the PKPA and the Pa.UCCJA provisions, it is apparent from the differences outlined above that there will be situations in which the application of each will yield a different result. In cases of conflict between the two statutes, it is clear that the PKPA must prevail over any contrary laws of the states in the area of recognition and modification of a sister state’s custody decree. See 28 U.S.C. § 1738A; see also In re McBride, 469 So.2d 645 (Ala.Civ.App. 1985); Olivia H. v. John H., 497 N.Y.S.2d 838, 130 Misc.2d 756 (1986); Wheeler v. Buck, supra. Consequently, we cannot make jurisdictional decisions based solely on the Pa.UCCJA, without regard to the PKPA.

Under the PKPA there must be an initial determination of jurisdiction under our own statute, 42 Pa.C.S. § 5344. See 28 U.S.C. § 1738A(c)(l). If jurisdiction properly may be assumed under Pennsylvania law, the Pennsylvania court must then look to jurisdiction prerequisites of 28 U.S.C. § 1738A(c)(2)(A) through (E). See Evans v. Evans, 688 F.Supp. 639 (M.D.Tenn.1987); Serna v. Salazar, 98 N.M. 648, 651 P.2d 1292 (1982). If the court cannot satisfy any one of the PKPA provisions, then the federal statute precludes the Commonwealth’s assumption of jurisdiction, and the petition must be denied for lack of subject matter jurisdiction.

However, even if the Commonwealth can satisfy both § 5344 of Title 42, and the PKPA, it may not automatically assume jurisdiction over the dispute. The existing decree of the sister state must be reviewed for compliance at the time of issuance with the provisions of the PKPA outlining the conditions for jurisdiction. Kumar v. Santa Clara County Superior Court, supra; In re Custody of Thorensen, 46 Wash.App. 493, 730 P.2d 1380 (1987); In re McBride, 469 So.2d 645 (Ala.Civ.App.1985). If the original decree satisfied both PKPA and the laws of the issuing state when entered, then consideration must be given to the possibility that the state which issued the original decree may have exclusive continuing jurisdiction over all custody matters under § 1738A(c)(2)(E) and § 1738A(d) and (f). The decree state must, as of the filing of the petition, no longer have jurisdiction under its own laws, or not satisfy one of the five PKPA jurisdiction conditions in order for this Commonwealth to assert jurisdiction over the dispute.

Should the review of the applicable state law and the PKPA disclose that the decree state still has continuing jurisdiction, the courts of this Commonwealth must refuse to hear the petition and direct the moving party to bring their petition to the courts of the original decree state. Should that state refuse to exercise jurisdiction, then and only then, may the petition be refiled in the courts of this Commonwealth.

In applying the outlined procedure to this case we will assume, arguendo, that Pennsylvania satisfies the first step. Having made this assumption, the propriety of the trial court’s exercise of jurisdiction over this dispute turns on the question of whether North Dakota retained exclusive continuing jurisdiction under Section 1738A(d). If at the time of the order North Dakota satisfied its own state law on jurisdiction (which was its version of the UCCJA) and the PKPA, the decree must be honored in this Commonwealth.

There is absolutely no question that North Dakota had proper subject matter jurisdiction to enter the original decree. Both parents and the children had resided in North Dakota for the preceding five years. Consequently, the decree was not subject to modification in Pennsylvania unless North Dakota, at the time the petition for change in custody was filed in March 1987, had lost continuing jurisdiction over the case.

To determine whether or not continuing jurisdiction exists, we again look to North Dakota law to decide whether it would allow for present jurisdiction and whether one of the 28 U.S.C. § 1738A(c)(2) conditions is met. If both are satisfied, only North Dakota has jurisdiction to entertain the petition for change of its custody decree.

North Dakota’s jurisdictional alternatives are in keeping with the UCCJA. See North Dakota Cent.Code ,§ 14-14-03. North Dakota case law clearly demonstrates that .it would construe North Dakota’s UCCJA so as to permit the assertion of continuing jurisdiction under facts such as presented here.

In Dennis v. Dennis, 366 N.W.2d 474 (N.D.1985), North Dakota issued a custody order in 1981. The children and custodial parent moved to Iowa. Three years later the non-custodial parent, who was still living in North Dakota, petitioned for modification. The North Dakota Supreme Court held that a significant connection with the forum would be sufficient for their continuing jurisdiction under North Dakota law, and to satisfy the continuing jurisdiction of 28 U.S.C. § 1738A(c)(2)(E), which requires only that the state law provide jurisdiction, and the state remain the residence of the child or any party. 28 U.S.C. § 1738A(d). (Emphasis added). Subsequent to Dennis, in Hedstrom v. Berg, 421 N.W.2d 488 (N.D.1988), North Dakota still used significant connections to satisfy their own jurisdiction as mandated by 28 U.S.C. § 1738A(d) when ruling on a noncustodial parent’s right to maintain action in North Dakota after the custodial parent and children relocated.

After reviewing the law in effect at the time of the filing of the March 1987 petition and the current cases, it is apparent that North Dakota would have asserted the authority to exercise jurisdiction over Joel Barndt’s petition under North Dakota law. Kathleen has been at all times, since the entry of the original decree through the filing of this appeal, a resident of North Dakota. There is no reason for us to believe that North Dakota, in interpreting their UCCJA, would provide less protection to a resident custodial parent than they have already provided to resident non-custodial parents. Since North Dakota, at the time of the petition, would have had jurisdiction under its own law and under the PKPA, exclusive continuing jurisdiction remained in North Dakota and the Pennsylvania courts did not have subject matter jurisdiction over this case.

CONCLUSION

Based on the foregoing, we find that the trial court should have refused to entertain the petition for custody modification and should have instructed Joel Barndt to direct his petition to the North Dakota courts. As Pennsylvania was without subject matter jurisdiction to modify the North Dakota decree when the trial court entered its orders relating to this custody dispute, the orders are nullities and must be vacated.

The order of April 10, 1987 and all subsequent orders pertaining to the custody of Michael and Kristopher Barndt entered in the Courts of this Commonwealth are hereby VACATED. Physical and legal custody of Michael and Kristopher still lies with Kathleen Barndt pursuant to the North Dakota decree, therefore, Joel Barndt is obligated to return physical custody of the children to Kathleen Barndt in compliance with the North Dakota custody decree without delay. Any modification of the custody arrangements sought by Joel Barndt must be brought in the Courts of North Dakota.

Orders VACATED, Jurisdiction Relinquished to the Courts of North Dakota.

TAMILIA, J., filed a dissenting opinion.

CERCONE, J., filed a concurring opinion.

TAMILIA, Judge,

dissenting:

While I believe the analysis by the majority is correct up to the point where the Federal Parental Kidnapping Prevention Act (PKPA) is discussed, I respectfully dissent from the majority in its finding the federal law requires relinquishing jurisdiction to North Dakota. The majority has overstated the implications of the Federal Act as to the facts of this case and attributes a fixed immutable jurisdictional override to all interstate (and by implication intrastate) custody actions.

I believe the majority is correct in stating the facts are not so clear that we may reverse the actions of the Columbia County Court in awarding custody to the father and that remand for further hearing on issues relating to significant contacts would clearly be in the children’s best interest. Having found that under the Uniform Child Custody Jurisdiction Act (UCCJA), 42 Pa.C.S. § 5341 et seq., Pennsylvania has at least colorable jurisdiction, and although reluctantly North Dakota has refused to entertain jurisdiction, no reading of the PKPA compels a finding that, despite a failure to address the jurisdictional issue, the PKPA requires this Court to address that issue and find as a matter of law that jurisdiction in Pennsylvania does not exist.

The majority cites no Pennsylvania cases which attribute such omnipotent attributes to the federal law that a per se finding of lack of jurisdiction under the facts of this case is required. The law espoused in other jurisdictions is at best evolving and relatively little assistance has as yet been forthcoming from federal authorities. There are two ways in which federal legislation may impact on causes of actions arising under state laws such as domestic relations law. The first and most intrusive is to preempt state jurisdiction and allow such matters to be tried in federal courts. Domestic relations, particularly divorce and custody matters since they frequently involve interstate parties and legal actions, provides a tempting target for the exercise of expansionistic federal policies. This is almost assuredly an approach which will not be taken as the federal judiciary is overwhelmed and seriously behind in its handling of civil and criminal cases. A recent study by the Federal Judiciary, chaired by Judge Joseph Weis, is recommending a serious reduction in federal jurisdiction in most criminal and some civil areas, thrusting these matters into the arena of the state courts.

The Supreme Court, when it has been called upon to address the issue of federal versus state jurisdiction in family matters, including custody and divorce, has exempted such proceedings from federal jurisdiction. Barber v. Barber, 62 U.S. (21 How.) 582, 16 L.Ed. 226 (1858). Despite the act of Congress giving apparent federal jurisdiction, many authorities and states reviewing this legislation have failed to apply the federal statute in an absolutist manner as would the majority. To do so creates a 180° reversal in the long progression of family law, in which the federal courts have wisely left decisions in family matters to the various state courts. The legislative notes accompanying the PKPA do not indicate a congressional mandate to deviate from that path. H. Clark, The Law of Domestic Relations in the United States (2d ed. 1987), discusses this problem:

If the possible conflicts between the PKPA and the UCCJA are not enough to warm the heart of the most technical of lawyers, there is always the question whether the federal courts have jurisdiction in custody matters by virtue of the PKPA. The “domestic relations exception” to federal jurisdiction is discussed in another section, in which are cited numerous cases in which the federal courts have expressed reluctance to decide custody disputes. The enactment of the PKPA provides another occasion for the debate over the “domestic relations exception”. In addition it raises the question whether the PKPA itself creates federal question jurisdiction over custody disputes as a way of resolving interstate conflicts. Although there is persuasive material in the legislative history of the PKPA to the effect that that Act was not intended to establish federal jurisdiction over jurisdictional conflicts between state courts in custody cases, some courts have held that where a state court has violated the PKPA by refusing to enforce the custody decree of another state court, a federal court has federal question jurisdiction to enjoin that violation and enforce the Act. Due to the obvious impact which the PKPA and UCCJA have upon the merits of custody decisions, the federal courts in these cases, may well have embarked upon a course which will involve them more deeply in the decision of custody conflicts than many judges will find desirable, and than the usual application of the “domestic relations exception” would permit. The extent of federal involvement in these cases could be reduced to some extent by the imposition of a requirement of the exhaustion of state judicial remedies before recourse to the federal courts.

Id. at p. 478 (emphasis added; footnotes 97 and 99 omitted).

This leads to the second basis upon which reliance may be placed on federal law to effect decisions in domestic relations matters. Relying on the supremacy clause of the Federal Constitution, a case can be made that once federal law or courts have spoken in matters relating to rights and procedures cognizable in state courts, federal law preempts the field and must be followed. This, however, is not a given, and to avoid undue stress in relation to state versus federal rights, federal law generally will not supersede state law except where state law has not provided an adequate remedy for protection of rights. This is generally recognized in the area of civil rights and criminal law. The pressure to intercede in civil matters and family matters, such as this case, is far less clear. The PKPA does make it clear that it is a companion act to the UCCJA and does not supersede it. Only when the UCCJA fails to provide for the rights which it intended to protect will the PKPA be applied. Since the federal courts have questionable jurisdiction in implementing the act, we must all proceed with caution in compelling the application of the act to state court jurisdiction under the supremacy clause.

The majority creates a mosaic of interlocking state decisions to reach the conclusion that Pennsylvania either lacked jurisdiction under the UCCJA or that despite jurisdiction arguably being present under that Act, provisions of the PKPA superseded the UCCJA to deny jurisdiction in Pennsylvania and vest it in North Dakota. The reasoning of the majority becomes too attenuated and esoteric in reaching its conclusions. North Dakota, in fact, declined any right it had to exercise jurisdiction, deferring to Pennsylvania. The majority acknowledges the record is inadequate to determine Pennsylvania was without jurisdiction in this case and more testimony is needed to determine whether the factual issue of maximum contacts test was met (Majority Op., at 329-332, 580 A.2d 324-325) but then turns to federal law to reach a different conclusion.

Since the effect of the PKPA is not clear, and federal decisions do not specify how far that law may deviate from the federal exception in domestic relations, we should not be too hasty to reject our previous holdings and in one fell swoop adopt a position which takes us to the furthest reaches of the federal law. A conservative Supreme Court could reasonably expect to limit the federal dominance in this area, which is traditionally relegated to the states. One of the clearest reasons for not applying the PKPA to an interstate case involving modification of an Order entered in a sister state is where the initial state declined to exercise jurisdiction. See UCCJA § 14. Clark addresses this issue in the following manner:

With advent of the UCCJA and the PKPA the analysis of the continuing jurisdiction problem has changed but the uncertainty and unpredictability of result in the case law has not been reduced. Although the problem was recognized by all who dealt with interstate custody, for some unexplained reason it was not explicitly covered by the UCCJA. The crucial section of that Act is section 1460 which provides that the custody decree of another state shall not be modified unless 1) the court of the other state does not presently have jurisdiction substantially in accord with the Act or has declined to exercise jurisdiction to modify, and 2) the court of this state does have jurisdiction. The language of this section must of course be construed with the statutory purposes in mind, particularly those purposes related to the avoidance of the relitigation of custody disputes and to the elimination of continuing controversies over custody. The Commissioners’ Comments to section 14 assert that in order to achieve those purposes petitions for modification must be submitted to the state rendering the initial decree so long as that state meets the requirements for jurisdiction imposed by section 3 of the Act. Unfortunately those requirements are often so difficult to apply to specific situations that the Commissioners’ precepts are not helpful in most instances.

The PKPA does have a provision explicitly defining the extent of continuing jurisdiction, but it just refers to the local law of the state which entered the decree, which of course now means the UCCJA.

Id. at p. 482 (footnotes 51, 52 and 53 omitted).

Despite the fact the federal legislation was enacted to fill the gaps left by the UCJJA, and to overcome its inadequacies, significant problems are suggested by authorities following this legislation which could lead to greater confusion with no greater solutions than before. Clark goes on to say:

The cases decided since the enactment of PKPA exhibit the same ambivalence on the question whether jurisdiction continues after the custodian and the child leave the state. If anything, the injection of the PKPA into the continuing jurisdiction issue has amplified the confusion already evident under the UCCJA. The cases holding that the jurisdiction continues generally are based upon a technical reading of the PKPA. The cases holding that the initial jurisdiction did not continue follow the same pattbrn, although there is sometimes a tendency to make continuing jurisdiction turn on the continuance of the state as the child’s home state, a position which, as has already been stated, is not supported by the. language of the PKPA.

Id. at p. 485 (footnotes omitted).

Finally, I am very concerned that the majority passed over, without serious consideration, the factual aspects of this case to reach the jurisdictional issue when jurisdiction was never raised in the trial court or on appeal. The only issues presented to the trial court were the standard issues in matters of custody, that is, whether or not there was a change of circumstances and what was in the best interest of the children. On appeal, the complete statements of question presented is as follows:

1. The court made its decision who should get custody based on the principle of the best interests of the children.
a. When there is an existing custody order, whether the lower court should first determine if a substantial change in circumstances has occurred since the entry of an existing Order.
b. If the correct standard is best interests of the children, whether the lower court drew the proper inferences from the evidence presented when deciding which parent should get custody.
2. Whether the lower court made a thorough analysis of the evidence on which to base its decision regarding custody.
. 3. Whether the court had a full and complete récord on which to base its decision.

Brief for Appellant at p. 3.

The only request for exercise of North Dakota jurisdiction was to hold an evidentiary hearing to inquire into the fitness of the mother, because relevant witnesses were available in North Dakota and it would not have been cost effective to make such an inquiry in Pennsylvania (Brief for Appellant at pp. 47-48).

The one-year agreement by the mother to have the children reside in Pennsylvania raises serious question as to whether this type of custody case was within the contemplation of the drafters of the PKPA. The majority, in sua sponte injecting the question of jurisdiction and applying the PKPA to this case, in face of the refusal of the North Dakota court to assume jurisdiction and the requirement that the PKPA must follow state law, which would treat such action as a release of jurisdiction, creates an untenable basis for its decision. The PKPA does not apply in this case and its application in such a broad sweeping fashion as proposed by the majority is a dangerous precedent which will require its application in every interstate custody case in Pennsylvania, whether the facts warrant it or not. As such, it will immeasurably increase the complexity, not to mention the confusion which will be injected into these matters, when the most basic approach serves the interest of justice and the needs of the litigants.

I would decide the case on its merits or at most remand for further hearing on the relative fitness of the parents and the best interest of the children since the mother alleges, with some reason, she has had little opportunity to present her witnesses on that issue.

To certify this case to North Dakota under the theory espoused by the majority cannot be justified.

CERCONE, Judge,

concurring:

I agree that the order of the lower court awarding custody to appellee Joel Barndt should be vacated because the lower court lacked subject matter jurisdiction to hear the custody issue presented by this case. While the courts of this Commonwealth generally have jurisdiction in custody matters, where there is a prior order of custody in another state involving the same parties and the same children, the courts of this Commonwealth lack subject matter jurisdiction to modify that decree under both the Uniform Child Custody Jurisdiction Act (UCCJA), enacted in Pennsylvania at 42 Pa.C.S.A. § 5341 et seq., and the federal Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A. To hold otherwise would be to defeat the purposes of both enactments, which include, inter alia, to:

(1) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being.
(4) Discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child.
(5) Deter abductions and other unilateral removals of children undertaken to obtain custody awards.
(6) Avoid relitigation of custody decisions of other states in this Commonwealth insofar as feasible.
(7) Facilitate the enforcement of custody decrees of other states.

42 Pa.C.S.A. § 5342. Accord 28 U.S.C. § 1738A (Congressional Findings and Declaration of Purposes for Parental Kidnapping Prevention Act of 1980).

UCCJA requires that the state of the initial custody decree have exclusive continuing jurisdiction of custody matters involving the original parties and children. See 42 Pa.C.S.A. § 5355; Commonwealth ex rel. Zaubi v. Zaubi, 275 Pa.Super. 294, 418 A.2d 729, aff'd 492 Pa. 183, 423 A.2d 333 (1980). It does not recognize the concept of concurrent state jurisdiction to hear a modification petition. The PKPA clarifies and strengthens the concept of continuing state jurisdiction to modify an original decree, a necessity which arose due to misinterpretations of UCCJA by the adopting states, as well as the existence of “havens” for child snatchers in states which had not enacted UCCJA. The language of PKPA clearly indicates the intent of Congress to require the states to give full faith and credit and not to modify the custody decrees of other states. 28 U.S.C. § 1738A(a).

In the instant case, there is no doubt that the petition for custody filed by Joel Barndt in the Court of Common Pleas of Columbia County in March, 1987 was a petition for modification because a prior award of custody had been made to appellant by order of the courts of North Dakota in May, 1983. It is further clear from the record that Michael and Kristopher Barndt were residing in Pennsylvania in March, 1987 pursuant to the “reasonable visitation” provisions granted to appellee under the North Dakota decree. The Columbia County court’s assertion of its jurisdiction in this situation set up an interstate custody dispute of the type which both UCCJA and PKPA were specifically enacted to prevent. It is extremely unfortunate, although understandable given the confusion this issue has generated in the courts, that the lower court in this case was not more enlightened as to the proper interpretation of the state and federal statutes regulating interstate custody issues. Had the lower court properly applied the concepts and requirements of UCCJA and PKPA in regard to petitions for modification of a valid custody order previously issued in another state, it is probable that this lengthy litigation in Pennsylvania could have been easily avoided along with the resultant heartbreak, uncertainty, and grief which has likely been experienced by the parties, particularly appellant, and the children. At the risk of redundancy, it cannot be too strongly emphasized that the UCCJA and PKPA were enacted to prevent this precise occurrence.

I agree with Judge Kelly that the order of the court of Columbia County of April 10, 1987 and all subsequent orders pertaining to the custody of Michael and Kristopher Barndt must be vacated, and legal custody of the children returned to appellant pursuant to the 1983 North Dakota decree. If Joel Barndt seeks modification of custody under that order, he must do so in the courts of that state.

      . See generally Bodenheimer, Progress Under the Uniform Child Custody Jurisdiction Act and Remaining Problems: Punitive Decrees, Joint Custody and Excessive Modification, 65 Cal.Law Rev. 978 (1977).

      . See Commissioners’ Prefatory Note to the UCCJA.

      . See Bodenheimer, Progress Under the Uniform Child Custody Jurisdiction Action and Remaining Problems: Punitive Decrees, Joint Custody and Excessive Modification, 65 Cal.Law Rev. 978 (1977); Bodenheimer, Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction under the UCCJA, 14 Fam.Law.Q. 203 (1981).

      . Even though not specified, the trial court's action implies jurisdiction was assumed on the basis of the Barndt boys presence in this Commonwealth in excess of the minimum statutory time allowed under 42 Pa.C.S.A. § 5344(a)(1)(h). While it is uncontested that the boys had been present in this Commonwealth long enough to establish home state jurisdiction, as previously explained, it is far from clear that maximum significant contacts existed as required. See 42 Pa.C. S.A. § 5344(a)(2).

      . Joint Hearing before the Subcommittee on Criminal Justice of the Committee on the Judiciary and the Subcommittee on Child and Human Development of the Committee on Labor and Human Resources, U.S. Senate, 96th Cong., 2d Sess. on S. 105 (1980), statement of Congressman Duncan, co-sponsor of the bill, at 19, 20, indicating a desire to keep federal interference in custody to a minimum. See also Coombs, Interstate Child Custody: Jurisdiction, Recognition, and Enforcement, 66 Minn.L.Rev. 711, 825 (1982).

      - UCCJA § 14 reads: “(a) If a court of another state has made a custody decree, a court of this State shall not modify that decree unless (1) it appears to the court of this State that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this Act or has declined to assume jurisdiction to modify the decree and (2) the court of this State has jurisdiction.

       28 U.S.C.A. § 1738A(d) reads as follows: "(d) The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant." Subsection (c)(1) of the section provides: "(c) A child custody determination made by a court of a State is consistent with the provisions of this section only if — (1) such court has jurisdiction under the law of such State;”.
      The modification provision of PKPA is similar to that of the UCCJA. 28 U.S.C.A. § 1738A(f) reads as follows: “(f) A court of a State may modify a determination of the custody of the same child made by a court of another State, if—
      (1) it has jurisdiction to make such a child custody determination; and
      (2) the court of the other State no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such determination.”

      . See Bodenheimer, Interstate Custody: Initial Jurisdiction and Continuing Jurisdiction under the UCCJA, 14 Fam.Law Q. 203, 214-17 (1981).

      . See Note, The Parental Kidnapping Prevention Act — Analysis and Impact on Child Custody Jurisdiction, 27 N.Y.L.Sch.L.Rev. 553, 564-65 (1983).

      . I would find North Dakota’s declination of jurisdiction in August, 1987 to be based on erroneous legal principles, including an over-reliance on Pennsylvania’s misguided assertion of jurisdiction as well as the North Dakota court’s own misinterpretation of UCCJA (enacted in that state). The North Dakota court relied on concepts relevant to the concurrent jurisdiction of two competing states in an initial determination of custody. Such considerations are not relevant to a modification petition except in unusual circumstances. See Bodenheimer, supra note 1. In addition, I would not find it proper for a Pennsylvania court to assert its jurisdiction prior to a declination of jurisdiction by the decree-issuing state, which is what occurred in the instant case. The Columbia County court should have declined jurisdiction and directed appellee to file his petition for modification of custody with the courts of North Dakota.