author: HOFFMAN, Judge:

text:
    483 A.2d 912
    Daniel B. MILLER and Laura A. Miller, Park G. Hoffman and Ruth A. Hoffman v. C.P. CENTERS, INC., and Andrew M. Pipa, Jr., Oscar E. Kehler, William P. Zurick, Clyde Fry, and John M. O’Brien, Partners in the firm t/d/b/a Host Hills Associates, a limited partnership, Appellants.
    Superior Court of Pennsylvania.
    Argued April 4, 1984.
    Filed Oct. 26, 1984.

      Randolph M. Baker, Harrisburg, for appellants.
    William A. Fetterhoff, Harrisburg, for appellees.
    Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellants contend that (1) appellees’ claim is barred by the doctrine of laches, (2) the lower court did not apply the appropriate legal standard when it found appellants liable for damage to appellees’ property, and (3) the lower court erred in making certain aspects of the damage award. We disagree and, accordingly, affirm the order of the court below.

Appellants, C.P. Centers and Host Hills Associates, are successors-in-interest to the Chambers Ridge apartment development in Swatara Township, Dauphin County. In 1971, Chambers Hills, a limited partnership, began developing the apartment complex in two sections. The first section was completed in 1972, but the second section was abandoned, unfinished, two years later. C.P. Centers took possession of the second section as mortgagee and completed it in 1976. Host Hills Associates purchased the first section from the original owner and the second section from C.P. Centers upon its completion. A line of tennis courts was added in 1980. This apartment complext is situated at a higher elevation than appellees’ property.

In October, 1978, appellees, the Millers and the Hoff-mans, brought a complaint in law and equity alleging that the development of appellants’ property had increased surface water runoff, resulting in erosion, silt deposits and flooding, and depleted the water table causing damage to a spring-fed pond on the Hoffmans’ property. On May 14, 1982, the lower court entered a decree nisi enjoining appellants from discharging unreasonable quantities of surface waters and silt onto appellees’ lands, awarding damages to appellees for silt removal and erosion repair, and compensating the Hoffmans for the installation of a well and pump to replenish their pond in the event that remedial measures did not reestablish the flow of the underground spring within a reasonable time. Exceptions to the decree nisi were denied and a final order was entered on October 29, 1982. This appeal followed.

Appellants contend first that appellees’ cause of action is barred by the doctrine of laches. In Wilson v. King of Prussia Enterprises, Inc., 422 Pa. 128, 221 A.2d 123 (1966) our Supreme Court stated:

The application of the equitable doctrine of laches does not depend upon the fact that a certain definite time has elapsed since the cause of action accrued, but whether, under the circumstances of the particular case, the complaining party is guilty of a want of due diligence in failing to institute his action to another’s prejudice. The question of laches is factual and to be determined by an examination of the circumstances.

Id., 422 Pa. at 133, 221 A.2d at 126 (citations omitted). Here, we find no lack of due diligence on appellees’ part. Construction of the apartment complex began in 1971 and continued through 1976, causing a gradual increase in runoff as construction progressed. Once the runoff began noticeably to damage their property, appellees brought the problem to the attention of Swatara Township authorities. They also sought to remedy the problem by contacting Dauphin County Water Conservation, the Department of Environmental Resources and the original contractor, and by negotiating with appellants. In 1978, after these avenues of relief proved unsuccessful, appellees filed the instant suit. Because appellees did not sit on their rights but, instead, diligently pursued their remedies in response to a continuous, increasing injury, we hold that their cause of action is not barred by laches.

Appellants next contend that liability for damage from surface waters may not be imposed upon the owner of higher land unless that landowner “is guilty of negligence which causes unnecessary damage to the servient owner, or where, by an artificial channel, he collects and discharges surface waters in a body or precipitates them in greatly increased quantities upon his neighbor.” Chamberlin v. Ciaffoni, 373 Pa. 430, 437, 96 A.2d 140, 143 (1953). Therefore, because appellees did not prove that appellants were negligent, and because appellants utilized a natural watercourse to discharge surface waters, appellants argue that they are not liable for the damage to appellees’ property. We disagree.

In Westbury Realty Corp. v. Lancaster Shopping Center, 396 Pa. 383, 152 A.2d 669 (1959), developers' of a shopping center were held liable for damage resulting from increased surface water runoff. There, our Supreme Court noted that, when legal concepts of water flow were developed, extensive urban development of rural lands was not contemplated. Consequently, the Court devised a new approach to situations in which urban development of rural lands covered significant portions of natural soil with nonporous materials and buildings, thereby preventing natural seepage and increasing the flow of surface waters. In such a case, the Court held that the development was “an artificial use of the land for which the developers must make the proper accommodation so as not to place the burden of the increased flow on the servient tenement.” Id., 396 Pa. at 389, 152 A.2d at 672. The Court also observed that where surface water is unreasonably or unnecessarily changed in quantity or quality, the lower property owner suffers a legal injury. Id., 396 Pa. at 387, 152 A.2d at 672, citing Lucas v. Ford, 363 Pa. 153, 156, 69 A.2d 114, 116 (1949).

Similarly, in the instant case, appellants’ apartment development constitutes an “artificial use”. The development covers a significant portion of its twenty-five acres with impermeable buildings and pavement, thereby preventing natural seepage and increasing the flow of surface waters from the development by 214 to 353 per cent. (N.T. April 6, 1981 at 6-7). In addition, as in Westbury, trial testimony indicated that the increased runoff could have been predicted and prevented. (N.T. April 6, 1981 at 14-16). We therefore hold that the lower court reasonably found that appellants had unreasonably and unnecessarily changed the quantity of surface water flowing over appellees’ property.

Finally, appellants challenge certain aspects of the damages awarded to appellees. They initially challenge the award of damages for removing silt from the channel of the natural watercourse, through which the majority of the surface waters from appellants’ property drains. This challenge is based upon a statement by appellees’ expert witness that “I honestly don’t see that [cleaning the channel] would make a great improvement to the property.” (N.T. October 29, 1980 at 55). The measure of damages for injury to property is the cost of repairs where that injury is repairable; however, where the injury is characterized as permanent, the measure of damages becomes the decline in the fair market value of the property. Rabe v. Shoenberger Coal Co., 213 Pa. 252, 62 A. 854 (1906); Wade v. S.J. Groves & Sons Co., 283 Pa.Superior Ct. 464, 424 A.2d 902 (1981). In the instant case, the lower court, sitting without a jury, had to judge the credibility of the witnesses and weigh their testimony. Courts v. Campbell, 245 Pa.Superior Ct. 326, 369 A.2d 425 (1976). As the factfinder, it was the judge’s prerogative to believe part of a witness’ testimony and find him mistaken as to the other part. Walker v. Martin, 214 Pa.Superior Ct. 287, 257 A.2d 619 (1969). The statement cited by appellants contradicts substantial other testimony by the same expert to the effect that silt in the channel had damaged appellees’ property and that its removal would diminish the potential for flooding caused by increased runoff. (N.T. October 29, 1980 at 18-19, 22-24, 52-55, 57-58). On these facts, the lower court reasonably resolved the conflicting testimony and found that the presence of silt in the channel had damaged appellees’ property and should be remedied.

Appellants also challenge the award to the Hoffmans for the installation of a well and pump to replenish their pond. Appellants argue that Pennsylvania law does not impose liability for non-negligent interference with subsurface waters such as the spring in this case. We find the case of subsurface waters analogous to that of surface waters. As our Supreme Court noted in Westbury Realty Corp. v. Lancaster Shopping Center, supra, new attitudes must be developed toward land uses, such as large shopping complexes and apartment developments in rural areas, which were not contemplated when our legal concepts of water flow were developed. As a consequence, the standard of liability enunciated in Westbury has been extended to subsurface waters. See Keim v. Tyson, 53 Westmoreland County L.J. 25 (1971) (servient landowner may recover damages and seek equitable relief for an unnecessary change in volume of subsurface waters). Reduction of seepage caused by covering natural soil with impermeable surfaces not only increases surface water runoff, but also prevents recharge of the ground water table. Here, the development of appellants’ property nearly extinguished the flow of the spring feeding the Hoffmans’ pond. As we noted previously, this result could have been predicted and prevented. Accordingly, we find that the Hoffmans suffered a legal injury when appellants unreasonably and unnecessarily interfered with the flow of the spring feeding the Hoffmans’ pond. Because testimony at trial indicated that the damage was remediable, N.T. October 29, 1980 at 24, we hold that the award of damages for the installation of a well and pump to replenish the pond was proper.

For the reasons expressed above, we affirm the order of the lower court.

Affirmed.

      . In Westbury, because the developers demurred to plaintiff's complaint, the court accepted as true the plaintiff's allegation that the runoff could have been prevented.

      . Appellants incorrectly state in their brief that the lower court awarded $3,025.00 to the Millers and $7,260.00 to the Hoffmans for the cleaning of the stream channel. In fact, only a portion of those sums were awarded for that purpose; the remainder of the award was made for erosion repair and grading.


source: Caselaw Access Project

license: Public Domain

text:
    483 A.2d 916
    COMMONWEALTH of Pennsylvania v. John CRAWFORD, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted May 24, 1984.
    Filed Oct. 26, 1984.

      Kenneth R. Dixon, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before DEL SOLE, MONTEMURO and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the evidence was insufficient to support his convictions for aggravated assault, resisting arrest, and riot. We find the appellant’s challenges to be without merit and, accordingly, affirm the judgment of sentence.

In connection with a December 12, 1981 disturbance outside a bar, appellant was arrested and charged with simple and aggravated assault, recklessly endangering another person, resisting arrest, hindering apprehension, riot, failure to disperse, disorderly conduct, and criminal conspiracy. Jury trial commenced on June 4, 1982, and on June 8 appellant was found guilty of disorderly conduct, failure to disperse, riot, resisting arrest, and three counts each of simple and aggravated assault; he was acquitted on the conspiracy charge. Post-verdict motions were timely filed and denied. On December 1, 1982, appellant was sentenced to a term of two-and-one-half-to-seven years imprisonment for riot, with all other sentences to run concurrently. Appellant’s petition for reconsideration was denied on January 6, 1983, prompting this appeal.

In determining whether the evidence is sufficient to support a conviction, we accept as true all the evidence, and the reasonable inferences therefrom, upon which the fact-finder could have based its verdict and then ask whether that evidence, viewed in a light most favorable to the Commonwealth, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Pagan, 315 Pa. Superior Ct. 7, 8, 461 A.2d 321, 322 (1983).

So viewed, the facts are as follows: In the early morning hours of December 12, 1981, Policeman Edward McBride observed a “large disturbance” involving twelve or more people in the 2800 block of Oxford Street, Philadelphia. The officer testified that one-half of the members of the group were screaming and hollering at the other half. He thereupon called for backup units and ordered the crowd to disperse. McBride left the scene briefly, but, upon his return, he saw appellant struggling with Officers Arthur Williams and Joseph Arrison. Williams had attempted to arrest appellant for disorderly conduct after appellant said to him, “Fuck you, you motherfuckers. I’m tired of your shit, too.” When appellant asked Williams what he was doing, someone from behind grabbed Williams, and two others jumped Arrison. Appellant then turned about and punched Arrison in the eye. McBride came to the assistance of the other two officers, grabbed appellant, and pushed him into the front seat of a police van. Appellant bit McBride on the left hand while another (unidentified) person hit him on the head causing McBride to black out. A fourth policeman sustained some contusions and a sprained ankle when he tried to assist in appellant’s arrest.

Appellant argues that the evidence was insufficient to support his convictions for aggravated assault and resisting arrest because his arrest for disorderly conduct was illegal. See 18 Pa.C.S.A. §§ 2702(a)(3) (lawful arrest is element of aggravated assault offense) and 5104 (lawful arrest is element of resisting arrest). The Commonwealth asserts, however, that probable cause existed to arrest appellant for disorderly conduct. “A. person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: ... uses obscene language, or makes an obscene gesture____” Id. § 5503(a).

The crux of appellant’s argument is that (1) the evidence of the obscenities shouted at Officer Williams was, standing alone, insufficient to support the crime of disorderly conduct, or (2) alternatively, should the evidence be found sufficient, appellant’s First Amendment rights would be violated. This claim has already been thoroughly discussed and rejected elsewhere. See Commonwealth v. Pringle, 304 Pa. Superior Ct. 67, 450 A.2d 103 (1983). In Pringle, we stated: “[I]t is well-settled in our Commonwealth that one may be convicted of disorderly conduct for engaging in the activity of shouting profane names and insults at police officers on a public street while the officers attempt to carry out their lawful duties.” Id,., 304 Pa.Superior Ct. at 71-72, 450 A.2d at 105-06. Here the police officers were lawfully dispersing an unruly crowd and were subjected to appellant’s epithets. Such conduct would support an arrest for disorderly conduct. Accordingly, having found the arrest lawful, we hold that the evidence was sufficient to sustain his convictions for aggravated assault and resisting arrest.

Appellant next contends that the evidence was insufficient to support his conviction for riot because mere presence without proof of encouragement is not enough, citing Commonwealth v. Reeves, 255 Pa. Superior Ct. 409, 387 A.2d 877 (1978). “A person is guilty of riot, a felony of the third degree, if he participates with two or more others in a course of disorderly conduct: ... with intent to prevent or coerce official action____” 18 Pa.C.S.A. § 5501(2). The essential element of a riot is group action. Commonwealth v. McGavin, 305 Pa.Superior Ct. 528, 532 n. 4, 451 A.2d 773, 775 n. 4 (1982). Here, we agree with the trial judge that group action was “manifested by the action of others in coming to the assistance of [appellant] during the arrest.” (Lower Court Opinion at 5).

Furthermore, appellant’s reliance on Reeves is misplaced. In that case, we did not hold that encouragement is a necessary element of a riot conviction, but held only that something more than mere presence alone is necessary. 255 Pa. Superior Ct. at 415, 387 A.2d at 881. In Reeves, the only evidence of the defendants’ participation in a riot were pictures demonstrating their presence at the scene. “[T]here [was] no proof that [the defendants] either engaged in or encouraged the violence____” Id. (emphasis added). Here, the Commonwealth produced evidence of appellant’s violent participation, and, therefore, we find the evidence sufficient to support his conviction for riot.

Affirmed.

      . The hindering apprehension charge was nolle prossed. Demurrers were sustained to the charges of recklessly endangering another person and one count each of simple and aggravated assault.

      . Although appellant's post-verdict motions were of the so-called "boilerplate" variety, they were filed well before the effective date of Commonwealth v. Holmes, 315 Pa. Superior Ct. 256, 461 A.2d 1268 (1983), which held that counsel must specify in the motions why a verdict was against the weight of the evidence or in what respect the evidence was insufficient. Therefore, we will address appellant’s sufficiency arguments.

      . Simple assault merged into aggravated assault for sentencing purposes, and the failure to disperse and disorderly conduct sentences were suspended.


text:
    483 A.2d 919
    In the Matter of the ESTATE OF J. William KREBS. Appeal of Delores M. GEBHART.
    Superior Court of Pennsylvania.
    Argued April 4, 1984.
    Filed Oct. 26, 1984.

      Larry W. Wolf, Hanover, for appellant.
    Keith R. Nonemaker, Hanover, for Trustee, participating party.
    Michael E. Dows, Hanover, for Minor Children, participating party.
    Bartholomew J. DeLuca, Jr., Harrisburg, for 3rd Contingent, participating party.
    Daniel M. Frey, Hanover, for Hanover & Trust, participating party.
    Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

The issues on appeal are (1) whether the settlor evidenced an intention to accumulate the income in one trust and (2) whether his purpose for a second trust has become impractical or impossible of fulfillment. For the reasons set forth below, we reverse in part and affirm in part.

On March 7, 1964, the settlor created an inter vivos trust known as the “J. William Krebs Trust No. 2,” (Trust No. 2) which authorized appellee, the Bank of Hanover and Trust Company, as trustee to “pay over and distribute the income and principal” in the amount of $5,000 annually (beginning January, 1965) to appellant, the settlor’s daughter. The trust provides that, upon appellant’s death, the “Trust Estate” is to be divided into equal shares and distributed among appellant’s surviving children, with sub-shares going to the issue of any deceased children. These shares are to be paid to the children or their issue upon their reaching the age of twenty-one; until such time, they are to be held in trust. In the event that appellant, her children, and their issue should all die before the trust is “exhausted,” the trust principal is to be divided equally between two other trusts, not here in question, created by the settlor. If either or both of those trusts are no longer in existence at the time of distribution, those shares which were to be distributed to them are to be divided equally among several charitable beneficiaries.

On March 1, 1968, approximately four years later, the settlor created- the “J. William Krebs Trust No. 5,” (Trust No. 5) which authorized a $2,500 annual payment to appellant “[fjrom and after January 1 of the calendar year next succeeding the year in which the ‘J. WILLIAM KREBS Trust No. 2’ shall have been terminated____” (Emphasis added). These payments, which are to continue for the life of appellant, are to be made from the trust income or, if the income proves insufficient, from the principal. Upon appellant’s death, the “Trust Estate” is to be divided into equal shares among appellant’s children, with each child taking upon reaching twenty-one years of age. Unlike Trust No. 2, however, the settlor did not make any provision for contingent remainders.

On August 13, 1981, appellant filed a petition in the orphans’ court below seeking an order directing appellee to pay to her the earned and undistributed income of Trust No. 2 for the years 1976 to 1980, a sum of $18,696.23, and all income earned thereafter. The petition also sought to terminate Trust No. 5 on the ground that its purpose had become impossible or impractical of fulfillment and to direct that the proceeds therefrom be paid to appellant or that other appropriate relief be given. Appellant’s eight children joined in the petition; a guardian ad litem consented to the joinder for three of the children who were under age twenty-one. A trustee ad litem was appointed for any unborn and unascertained remainder beneficiaries, and notice of the petition was given to the Attorney General of the Commonwealth on behalf of the contingent charitable remainder beneficiaries under Trust No. 2. Appellee, along with the trustee ad litem and the Attorney General, opposed the petition. On June 9, 1982, the lower court entered a decree nisi denying the relief requested by appellant; however, the court did modify the language of Trust No. 5 to provide that payments thereunder would begin after Trust No. 2 was “exhausted” rather than “terminated.” Exceptions were timely filed and denied, and the decree nisi was entered as final on February 17, 1983. Appellant was granted leave to proceed in forma pauperis, and this appeal followed.

We must first determine whether appellant is entitled to the excess accumulated income of Trust No. 2. In interpreting a trust instrument, “[t]he intent of the settlor, if not contrary to law, must prevail.” Matter of Tracy, 464 Pa. 300, 304, 346 A.2d 750, 752 (1975) (footnote omitted).

[This intent] is to be determined from all the language within the four corners of the trust instrument, the scheme of distribution and the circumstances surrounding the execution of the instrument. Only if a settlor’s intent cannot be ascertained with reasonable certainty will a court apply canons of construction, to attribute a reasonable intention to the settlor in the circumstances.

Farmers Trust Co. v. Bashore, 498 Pa. 146, 150, 445 A.2d 492, 494 (1982). “[U]nless a settlor clearly demonstrate^] his intent to accumulate income, trust income in excess of specified payments [is] to be distributed to income beneficiaries.” Stephens v. Lewistown Trust Co., 481 Pa. 194, 199, 392 A.2d 313, 316 (1978) (emphasis added). Before a court can find an intent on the settlor’s part to accumulate income, “[t]he implications relied upon for that purpose should at least be so persuasive as to leave no doubt of the settlor’s intent in such regard.” McKeown Trust, 384 Pa. 79, 85, 119 A.2d 76, 78 (1956) (emphasis added). “All income, after payment of expenses properly chargeable to it, shall be paid and delivered to the tenant or retained by him, if already in his possession, or held for accumulation, where legally so directed by the terms of the transaction by which the principal was established____” 20 Pa.C.S.A. § 8103(c) (emphasis added); see also Restatement (Second) of Trusts § 233(l)(a) comment p (1959).

In McKeown Trust, supra, the settlor created an irrevocable trust with herself as the primary beneficiary. She was to receive $150 a month, payable out of income and, if necessary, principal. Finding no express intent on her part to accumulate income, our Supreme Court held that the excess income was to be distributed to her. In so holding, the Court found the following factors to be important: (1) the settlor feared that the trust would be depleted, thereby forcing her to authorize invasions of the principal; (2) the remaindermen, her children, were not yet born and, thus, there was little reason to accumulate income; and (3) the remainderman were to receive “ 'the remaining corpus’— not a corpus augmented by accumulations of income.” 384 Pa. at 83, 119 A.2d at 77-78.

In Stephens v. Lewistown Trust Co., supra, the trust provided that its beneficiaries, the settlor’s children, would receive quarterly payments of $300, payable out of income and principal, which were to continue until their full shares of income and principal (one-third to each of his three children) was fully paid. In holding that the beneficiaries were entitled to distribution of the accumulated income, our Supreme Court was impressed with several factors: (1) in several provisions of his will, the settlor indicated a desire to make available all of the benefits of the trust to the named beneficiaries, including a provision that payments be made out of the corpus, if necessary; (2) there was no express intent to accumulate income; and (3) the settlor did not provide for any remainder interest, thus depriving no named beneficiary of any benefits. 481 Pa. at 199-200, 392 A.2d at 316.

And in In re Grater’s Estate, 1 Pa.Fiduc.2d 101 (Ct.C.P. Allegheny County 1981), the trust provided that the settlor’s nephew was to receive $200 a month, payable from principal, if necessary; such payments were to continue until the principal was reduced to $10,000, at which time the nephew would receive the balance of the principal. The court relied on McKeown and Stephens to find that, because there was no clear intent on the settlor’s part to accumulate income, the nephew was entitled to the excess. Although a contingent charitable remainder was to receive the principal if the nephew died during the life of the trust or before the decedent, the trust said nothing about the remainder taking the principal and accumulated income. The court also found that the settlor was primarily concerned with insuring that the nephew was paid his monthly amount.

Similarly, in the instant case, the settlor has not manifested any clear intent to accumulate income. In Trust No. 2, he expressly authorized that payments to appellant were to be made out of the “income and principal.” (Emphasis added). As the lower court found, his fear that Trust No. 2 would be depleted caused him to create Trust No. 5. See Lower Court Adjudication at 11. Under these circumstances, we find that the settlor did not intend to accumulate income.

Appellees emphasize the fact that payments to appellant under Trust No. 2 were limited to $5,000. We note, however, that the beneficiary payments in Stephens, McKeown, and Grater’s Estate were all for stated amounts. Furthermore, “a settlor’s specification of periodic payments of specified sums establishes only minimum, not maximum, limits for distribution of trust income.” Stephens, 481 Pa. at 200, 392 A.2d at 317 (citations omitted). Nor should the instant settlor’s provision for remainders in Trust No. 2 demand a contrary result because there were also remainders provided for in the McKeown and Grater’s Estate trusts. In any event, contrary to appellees’ contention that the intent behind the remainder provisions must have been to accumulate income, we find an equally strong inference that the settlor simply wanted to provide for distribution of the remaining principal in the event that the trust did not exhaust. Appellees further argue that the settlor’s use of the words “Trust Estate,” rather than “remaining corpus,” see McKeown, supra, in referring to what is to be distributed upon appellant’s death, indicates an intent on the settlor’s part to accumulate income. While the words “Trust Estate” could arguably refer to both principal and income, they could also mean “whatever remains.” Thus, finding no clear intent on the settlor’s part to accumulate trust income, we accordingly reverse that part of the lower court’s order denying appellant’s petition for payment of the excess income.

We next turn to the question of whether the purpose of Trust No. 5 has become impractical or impossible of fulfillment. Appellant sought to terminate Trust No. 5 under 20 Pa.C.S.A. § 6102(a), which states, in pertinent part, that:

The court having jurisdiction of a trust heretofore or hereafter created, regardless of any spendthrift or similar provision therein, in its discretion may terminate such trust in whole or in part, or make an allowance from principal to one or more beneficiaries provided the court after hearing is satisfied that the original purpose of the conveyor cannot be carried out or is impractical of fulfillment and that the termination, partial termination, or allowance more nearly approximates the intention of the conveyor, and notice is given to all parties in interest or to their duly appointed fiduciaries.

A trust will be terminated “where the impossibility ... is such that there is no sufficient reason for continuing the trust____” IV A. Scott, The Law of Trusts § 335 at 2650 (1967); see also Day Estate, 455 Pa. 610, 613-15, 317 A.2d 648, 650-51 (1974). Here, the parties apparently concur with the lower court’s finding that the purpose of Trust No. 5 was to provide a source of income for appellant in the event that Trust No. 2 became exhausted of funds. See Lower Court Adjudication at 10-11. Otherwise, if the word “terminated” in Trust No. 5 were read literally, appellant could never receive the annual $2,500 payments because they would begin when Trust No. 2 ended, that is, upon appellant’s death. We agree with this construction. Although Trust No. 2 may not now appear to be in danger of exhaustion, this does not mean that its fulfillment has become impractical or impossible, clearly, because Trust No. 5 was meant to be a “fallback” trust created for appellant’s benefit, the settlor must have contemplated that it might not be necessary should Trust No. 2 prove sufficient to provide for appellant’s needs during her lifetime. In that event, the proceeds would be distributed to the remaindermen, the settlor’s grandchildren, upon appellant’s death as provided for in the trust. Accordingly, we affirm the lower court’s denial of appellant’s petition to terminate Trust No. 5 on impossibility grounds.

Lastly, because we interpret the word “terminated” in Trust No. 5 to mean “exhausted,” we find that the lower court’s modification of the trust language was unnecessary and, accordingly, reverse that part of the order below. The lower court based its action “on the authority of” 20 Pa.C. S.A. § 6102(a), which provides for particularized remedies if the purpose of the settlor “cannot be carried out or is impractical of fulfillment.” See Lower Court Adjudication at 13. However, because we have rejected the impractieality argument, it follows that § 6102(a) is inapplicable. “Words are to be interpreted according to their usual and generally accepted meaning in the absence of a clear intent to the contrary.” Schellentrager v. Tradesmens National Bank and Trust Co., 370 Pa. 501, 504, 88 A.2d 773, 774 (1952) (emphasis added). Here, a clear intent that the settlor meant the word “terminated” to mean “exhausted” was shown. Therefore, we have interpreted the trust according to the intent of the settlor and find it unnecessary to reach the question of whether it was within the lower court’s power to modify the trust language.

Reversed in part and affirmed in part.

Remanded for proceedings consistent with this opinion.

Jurisdiction is not retained.

      . “The intention of the settlor at the time of the creation of the trust may ... be shown by facts occurring after [the time of the creation of the trust] to the extent that evidence of such facts is admissible to show such intention under the rules of evidence.” Restatement (Second) of Trusts § 4 comment a (1959).

      . The Attorney General and the trustee ad litem also oppose appellant’s request for relief, but the latter proceeded without filing a brief.

      . Appellees also contend that the trust’s "no anticipation” clause is evidence of the settlor’s intent to accumulate income. We find this contention meritless. Paragraph 5 of Trust No. 2 states, in part, that ”[b]eneficiaries of this trust shall have no power of anticipation, alienation or assignment o/ any income so to be paid to them....” (Emphasis added). The clause’s purpose is to protect the trust fund from creditors of the beneficiaries; it says nothing about income accumulation. Appellees' contention merely begs the question of what income is to be paid to the appellant-beneficiary.

      . The settlor died on November 9, 1970, leaving one-third of the residue of his estate to Trust No. 2. The market value of the trust as of January 1, 1981 was $118,704.07; it was originally created in the amount of $12,000, and the settlor increased that amount to $38,000 during his lifetime. As of February 28, 1981, Trust No. 5 was valued at $27,185.90.


text:
    483 A.2d 924
    Thomas J. DUDASH v. PALMYRA BOROUGH AUTHORITY, Glace & Glace, Inc., Westland Industries, Inc. and Condor Construction Company. Appeal of GLACE & GLACE, INC. Thomas J. DUDASH v. PALMYRA BOROUGH AUTHORITY. GLACE & GLACE, INC. v. WESTLAND INDUSTRIES, INC. and Condor Construction Company. Appeal of WESTLAND INDUSTRIES, INC. Thomas J. DUDASH v. PALMYRA BOROUGH AUTHORITY, Glace & Glace, Inc., Westland Industries, Inc. and Condor Contractors, Inc. Appeal of GLACE & GLACE, INC. Thomas DUDASH v. PALMYRA BOROUGH AUTHORITY. GLACE & GLACE, INC. v. WESTLAND INDUSTRIES, INC. and Condor Construction Company. Appeal of WESTLAND INDUSTRIES, INC.
    Superior Court of Pennsylvania.
    Argued April 3, 1984.
    Filed Oct. 26, 1984.

      Richard A. Bausher, Reading, for appellant (at Nos. 229 and 275) and for appellee (at Nos. 238 and 280).
    John B. Mancke, Harrisburg, for appellant (at Nos. 238 and 280) and for appellee (at Nos. 229 and 275).
    Joel D. Smith, Lancaster, for Palmyra, appellee.
    Before WICKERSHAM, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

These are appeals from the lower court’s June 7, 1983 Order and June 27, 1983 amended Order entering judgment on the pleadings in appellee’s favor and against appellants. We reverse.

On February 21, 1973, appellee Palmyra Borough Authority (Palmyra), a municipal authority, employed appellant Glace & Glace, Inc. (Glace) as a consulting engineer to prepare the plans and specifications for extensions to the sanitary sewage system in the Borough of Palmyra, Lebanon County, Pennsylvania. Pursuant to the employment agreement, Glace also agreed to be responsible for supervising the construction work. On March 2, 1977, Palmyra entered into a contract with appellant Westland Industries, Inc. (Westland), an independent contractor, for the construction of the extensions and additions. Under this agreement, Westland was permitted to award work to a subcontractor without Palmyra’s written approval when the value of the work to be awarded was less than 50% of the contract price and also agreed to indemnify Palmyra for any losses or injuries caused by the negligence of Westland, its subcontractor or employees. On March 16, Westland, subcontracted part of the excavation and construction work to Condor Construction Co. (Condor), a sewage contractor.

On April 11, 1977, Thomas J. Dudash, a Condor employee, was injured when a sanitary sewer trench in which he was working collapsed. Dudash filed a December 1, 1978 trespass action against Palmyra and Glace, alleging their negligence and that the construction site was under their control. In its April 20, 1979 answer, Palmyra asserted new matter and a cross-complaint against Glace, alleging that if Palmyra was found liable, then Glace was liable for breach of its contractual duty to supervise the construction work. Also, in April of 1979, Palmyra joined both Westland and Condor as additional defendants and filed a complaint in trespass and assumpsit against them. Upon Palmyra’s motions, the lower court issued rules to show cause (1) on November 12, 1980, why partial summary judgment should not have been entered in Palmyra’s favor and against Dudash; (2) on November 2, 1982, why judgment on the pleadings should not be entered in Palmyra’s favor and against Westland; and (3) on November 5, 1982, why judgment on the pleadings should not be entered in favor of Palmyra and against Glace.

On June 7, 1983, the lower court, per Order and Opinion, directed the Prothonotary to enter (1) judgment in Palmyra’s favor and against Dudash and (2) judgment on the pleadings in Palmyra’s favor and against Westland and Glace. Glace and Westland appealed that order on June 28 and July 5, respectively. On June 20, 1983, Dudash filed a motion for reconsideration because Palmyra’s motion had requested only a partial summary judgment against Du-dash.

On June 27, 1983, the lower court issued an amended Order directing the Prothonotary to enter (1) partial summary judgment in Palmyra’s favor and against Dudash on all claims made by Dudash against Palmyra arising under § 411 of the Restatement (Second) of Torts and (2) judgment on the pleadings in Palmyra’s favor and against Westland and Glace. Glace and Westland filed timely appeals from the amended Order. Dudash, in turn, filed a motion to quash the appeals on the ground that the lower court’s orders were interlocutory. All four appeals and the motion to quash are presently before this Court.

We must first determine whether the lower court’s orders entering judgment on the pleadings in Palmyra’s favor and against Glace and Westland are final and appeala-ble. An appeal may be taken as of right from any final order of a lower court. Pa.R.A.P. 341(a). A final order is usually one which ends the litigation or, alternatively, disposes of the entire case. Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978); Praisner v. Stocker, 313 Pa.Superior Ct. 332, 336-338, 459 A.2d 1255, 1258 (1983). An order is interlocutory and not final unless it effectively puts the litigant “out of court”. Praisner v. Stocker, supra. “An order does not put ‘a party out of court’ unless it precludes proof of facts at trial, which if determined in favor of the pleader would provide him with a complete defense to the action.” Ventura v. Skylark Motel, Inc., 431 Pa. 459, 463, 246 A.2d 353, 355 (1968). “In ascertaining whether an order is final, we will look beyond the technical effect of the order and apply practical considerations in light of the order’s ramifications.” Freeze v. Donegal Mutual Ins. Co., 301 Pa.Superior Ct. 344, 447 A.2d 999 (1982).

Here, the entry of partial summary judgment in Palmyra’s favor and against Dudash does not put Dudash “out of court” and therefore, in this respect, the amended order is interlocutory and nonappealable. See Praisner v. Stocker, supra (appeal will not lie from an order granting partial summary judgment). However, the entry of judgment on • the pleadings in Palmyra’s favor and against Westland and Glace does effectively put Westland and Glace “out of court” because it precludes them from ever receiving a favorable verdict in this case. Therefore, we hold that the lower court’s order and amended order are final and appealable by Westland and Glace. Accordingly, the motion to quash is denied.

On the merits, appellants Westland and Glace contend that the entry of judgment on the pleadings in appellee Palmyra’s favor was improper. They argue the following: In its original order, the lower court erroneously granted full summary judgment for Palmyra and against Dudash. Then, because the court believed Palmyra could not be liable on any theory, it also granted judgment on the pleadings in Palmyra’s favor and against Westland and Glace without considering any basis of liability on their part. When the court amended its order to grant only partial summary judgment against Dudash on § 411 claims, it failed to also amend the entry of judgment on the pleadings against Westland and Glace in consideration of Palmyra’s possible liability under § 416 of the Restatement (Second) of Torts.

“Judgment on the pleadings is appropriate only where no material facts are in dispute.” Pennsylvania Association of State Mental Hospital Physicians, Inc. v. State Employees’ Retirement Board, 484 Pa. 313, 320 n. 11, 399 A.2d 93, 96 n. 11 (1979).

Under Pa.R.C.P. 1034, a motion for judgment on the pleadings may be granted in cases which are so free from doubt that a trial would clearly be a fruitless exercise. Such a motion is in the nature of a demurrer; all of the opposing party’s well-pleaded allegations are viewed as true but only those facts specifically admitted by him may be considered against him____ Unlike a motion for summary judgment, the power of the court tó enter a judgment on the pleadings is further circumscribed by the requirement that the court consider only the pleadings themselves and any documents properly attached thereto.

Thomas Merton Center v. Rockwell International Corp., 280 Pa.Superior Ct. 213, 215-16, 421 A.2d 688, 689 (1980), quoting Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 378, 224 A.2d 174, 178 (1966), cert. denied, 386 U.S. 1007, 87 S.Ct. 1348, 18 L.Ed.2d 433 (1967) (footnote and citations omitted). See also Keil v. Good, 467 Pa. 317, 319, 356 A.2d 768, 769 (1976); North Star Coal Co. v. Waverly Oil Works Co., 447 Pa. 241, 246, 288 A.2d 768, 771 (1972).

In the instant case, the lower court’s rationale for granting judgment on the pleadings against Glace in the original Order was as follows:

The disposition of the Authority’s [Palmyra’s] motion for summary judgment against Dudash obviates the required analysis of the Authority’s motion for judgment on the pleadings against Glace. In that we have determined that there can be no liability imposed on the Authority under the provisions of Chapter 15 of the Restatement (Second) of Torts (1965), and under the terms of the agreement between the Authority and Glace, dated February 21, 1973, Glace agreed to supervise the construction, there can be no liability on the part of the Authority and in favor of Glace. Likewise, it is unnecessary to determine the question of indemnity which the Authority claims Glace would be responsible for since we have determined that the Authority cannot be held liable for any damages for Dudash.

(Lower Court Opinion, June 7, 1983 at 11). Similarly, the lower court’s rationale for granting judgment on the pleadings against Westland in the original Order was as follows:

Inasmuch as we have held that the Authority [Palmyra] cannot be held liable to Dudash we can perceive of no legal basis for retaining the Authority as a party in the proceeding under any theory. We have held that the Authority cannot be held liable for negligently causing injuries to Dudash, thus, there is no reason to maintain the Authority as a party in this proceeding. This issue Westland contends is open is whether the indemnification agreement requires Westland to indemnify the Authority for the Authority’s own negligence. We do not suppose for a moment that Westland takes the position that the Authority was negligent in hiring Westland. Such a contention is neither pleaded nor argued. The reason is rather obvious, it is absurd.

(Lower Court Opinion, June 7, 1983 at 11-12). It is clear that, upon amendment of the Order to grant only partial summary judgment for Palmyra and against Dudash, the lower court’s reasons for entering judgment on the pleadings against Westland and Glace no longer applied. Although Palmyra can no longer be held liable for Dudash’s § 411 claims, it may still be liable for § 416 claims. Section 411 of the Restatement (Second) of Torts provides that:

An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor
(a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or
(b) to perform any duty which the employer owes to third persons.

Restatement (Second) of Torts § 411 (1965) (emphasis added). Here, the lower court held as a matter of law that there can be no recovery against Palmyra under § 411 because Dudash was an employee of subcontractor Condor and therefore not a “third person”. (Lower Court Opinion, June 7, 1983 at 10). Section 416 of the Restatement provides that:

One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer provided for such precautions in the contract or otherwise.

Restatement (Second) of Torts § 416 (1965) (emphasis added). Section 416 was adopted by Pennsylvania in Philadelphia Electric Company v. Julian, 425 Pa. 217, 228 A.2d 669 (1967). Here, we note that § 416 liability may extend to any “others” and find that there was a possible basis of liability on Palmyra’s part under § 416. See Heath v. Huth Engineers, Inc., 279 Pa.Superior Ct. 90, 420 A.2d 758 (1980) (sewer authority found liable under § 416 for death of sewer construction contractor’s employee who was killed when the trench in which he was working collapsed); McDonough v. United States Steel Corp., 228 Pa.Superior Ct. 268, 324 A.2d 542 (1974) (steel company found liable for death of independent contractor’s employee who was killed when his earth-moving machine overturned because work posed peculiar risks for which special precautions should have been taken). In light of the above-emphasized language of § 416, the fact that Westland and Glace agreed to, respectively, indemnify Palmyra and supervise the construction work is not dispositive. See McDonough v. United States Steel Corp., supra, 228 Pa.Superior Ct. at 274 n. 4, 324 A.2d at 545 n. 4 (“Section [416] renders irrelevant contract provisions placing the responsibility for all necessary safety precautions on the independent contractor. Appellant’s right of indemnity against contractor by virtue of a contract is not involved herein.”).

Consequently, because Palmyra is still a party in these proceedings, we hold that entering judgment on the pleadings against Westland and Glace was error because unanswered questions regarding Glace’s agreement to supervise and Westland’s agreement to indemnify would still need to be resolved within the framework of Dudash’s § 416 claims against Palmyra.

Accordingly, we reverse the lower court’s amended Order and remand for proceedings consistent with this opinion.

Reversed and remanded.

Jurisdiction is not retained.

       The amended Order, entered June 27, 1983, was not accompanied by an opinion. Although Pa.R.A.P. 1925(a) requires that the judge who enters the order appealed from file a brief statement of reasons for the order if such reasons do not appear on record, we find it unnecessary to remand for such an opinion.


author: CERCONE, Judge:

text:
    483 A.2d 929
    Lynne BLINKOFF, Appellant, v. Barry BLINKOFF.
    Superior Court of Pennsylvania.
    Argued July 24, 1984.
    Filed Oct. 26, 1984.

      William P. James, Philadelphia, for appellant.
    Catherine M. Baggiano, Philadelphia, for appellee.
    Before CIRILLO, MONTEMURO and CERCONE, JJ.
   CERCONE, Judge:

This appeal on jurisdictional grounds only, is from an order which modified appellee-father’s visitations and rejected his request that appellant-mother be held in contempt for violation of a visitation order. Because we find that the trial court was without jurisdiction to modify the pre-exist-ing order, we reverse.

A review of the history of this case is necessary. The parties were married in 1970; three children were born to them: Jason, born June 21, 1971, and Saul and Rena, twins born November 7, 1972. The couple and Jason lived in Philadelphia until the middle of 1972, when they moved to Cherry Hill, New Jersey. In 1976 appellant-mother moved with the three children back to Philadelphia. A decree in divorce was entered by a New Jersey court on May 25, 1976.

On November 21, 1978, appellant-mother sought child support from their father in the Court of Common Pleas of Philadelphia County and an order was entered for support.

On January 5, 1981, appellant-mother, after her marriage to Aaron Lantz, moved with the children to Woodmere, Long Island, New York. On March 4, 1982, appellee-father filed a petition with the Philadelphia court seeking child visitation and an order was entered on June 18, 1982 on visitation. On December 24, 1982, the father filed a petition to hold the mother in contempt for failure to abide by the visitation order.

Then, on September 19, 1983, at a pre-trial conference, the mother challenged the jurisdiction of the Pennsylvania courts to rule on the subject of visitation. The court requested that the parties outline their respective positions in letters directed to the court. On November 15, 1983, the court wrote to counsel that it had decided “under the totality of the circumstances” that it had jurisdiction to decide the contempt and visitation issues. A hearing was scheduled for November 23, 1983, at which time the mother renewed her objections to the court’s jurisdiction by notifying the court that written preliminary objections would be filed. An interim visitation schedule was agreed to by the parties.

The court declined the mother’s request for a hearing on the jurisdiction issue and entered an order on December 20, 1983, to-wit:

“AND NOW, this 20th day of December, 1983, the issue of jurisdiction of this Court having already been decided based upon a review of the record as agreed by counsel for both parties we find that the preliminary objections of plaintiff, Lynn Blinkoff (now Lantz) to this Court’s jurisdiction are moot.
Further, upon consideration of all other facts and circumstances, we find said preliminary objections to be untimely and without merit.
Accordingly, it is hereby ORDERED and DECREED that said preliminary objections be and are hereby Overruled. The hearing fixed for January 4, 1984 shall proceed as scheduled.

The parties next appeared before the trial court on February 22, 1984, for a hearing on the father’s petition for contempt and the mother’s petition to increase support. Counsel for the mother again objected to the court’s jurisdiction and informed the court that, inasmuch as there existed disputed issues of fact and a material change of circumstances, an evidentiary hearing was necessary on the question of jurisdiction. The court then agreed to receive testimony on the question of jurisdiction in a reconsideration of its December 20, 1983 order. The parties presented testimony and on March 19, 1984, the court issued an order reaffirming its earlier order dismissing appellant’s jurisdictional objections. In addition, the court found that the mother was not in contempt of the earlier visitation order and in that same order modified the father’s visitation. The mother now appeals only the court’s assertion of jurisdiction in this matter.

Initially we must confront appellee’s petition to quash this appeal as untimely. He asserts that the appeal should have been taken from the December 20, 1983, order by which the trial court found the mother’s preliminary objections on the basis of jurisdiction were “moot,” “untimely,” and “without merit”. He cites Provident National Bank v. Rooklin, 250 Pa.Superior Ct. 194, 378 A.2d 893 (1977), in which this court stated the rule regarding petitions for reconsideration and their inability to toll the period within which an appeal should be taken. See Pa.R.A.P. 1701(b)(3). However, appellee does not address the non-appealability of the dismissal of preliminary objections. Matter of Phillips, 471 Pa. 289, 370 A.2d 307 (1977). It would have been premature for appellant to have appealed the denial of her preliminary objections relating to subject matter jurisdiction prior to a determination by the trial court of the merits of the visitation petition. Moreover, challenges to subject matter jurisdiction may never be considered as waived. Marcus v. Diulus, 242 Pa.Superior Ct. 151, 363 A.2d 1205 (1976). Thus, given the peculiar circumstances of this case, the appeal was timely as from the trial court’s order of March 19, 1984, and it shall be considered on the merits.

The Uniform Child Custody Jurisdiction Act, 42 Pa.C.S.A. § 5341, et seq., governs this case. The general purposes of the Act include, at § 5342(a)(3), to:

Assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training and personal relationships is most readily available, and that courts of this Commonwealth decline the exercise of jurisdiction when the child and his family have a closer connection with another state.

Appellant argues that the underlying course of events in this case has deprived the Pennsylvania courts of subject matter jurisdiction and that the courts of New York should preside over the visitation problems of the parties.

The Act provides three major bases for jurisdiction. Section 5344 provides that a court of this Commonwealth has jurisdiction to make a child custody determination by initial or modification decree if, inter alia, § 5344(a)(1) this Commonwealth is the home state of the child at the time the proceeding was commenced. “Home state” is defined as the state in which the child immediately preceding the time involved lived with his or her parents for at least six consecutive months. In this case, it appears that Pennsylvania may not be considered “home state” since the children had moved to Long Island fourteen months prior to the father’s filing of a petition for shared custody/visitation on March 4, 1982. Section 5344(a)(3) is not relevant to our consideration.

However, as the mother argues, § 5344(a)(2) supplies another basis for jurisdiction, and it is within these parameters that the mother urges that New York is now the proper jurisdictional forum.

(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 of the child;

This jurisdictional basis has been described as premised on “significant contacts” among the various parties to the custody action and the locale in which the action has been brought. Hattoum v. Hattoum, 295 Pa.Superior Ct. 169, 174, 441 A.2d 403, 405 (1982).

The evidence elicited at the hearing established that the children and mother, having moved from Pennsylvania, have lived in Woodmere, Long Island, New York since January 5, 1981. The father has not lived in Pennsylvania since 1972 and his connection with this state is centered in the fact that approximately half of his working hours as a medical doctor are spent here. The children do attend a summer camp in the Pocono Mountains in Pennsylvania and they visit the mother’s parents and other relatives who live near Philadelphia in Pennsylvania. The father also points out that Jason was to celebrate his bar mitzvah in a Philadelphia synagogue this year and that he has taken Rena to an eye doctor in Philadelphia.

However these contacts with Pennsylvania are overshadowed by the extent to which the children have become relocated in their new community in the state of New York. And it is the best interest of the children involved that is paramount in any custody issue. Tettis v. Boyum, 317 Pa.Superior Ct. 8, 463 A.2d 1056 (1983). Jurisdiction founded upon the “significant contacts” principle, among parties to a custody action cannot be assumed without it first appearing that no other state could have assumed jurisdiction under the prerequisites substantially in accordance with the Pennsylvania statute. Id.

The children themselves consider Woodmere their home now, as the in-chambers interview reveals. They attend synagogue and school there, including Hebrew school three days a week. All of the children’s friends are in New York. They participate in sports and take music lessons in their New York neighborhood. This court’s review of the record leads to the conclusion that nearly all of the children’s major involvements are centered in the state of New York now, despite the assertions of the father. Not only do the children lack a significant connection with Pennsylvania, but the evidence concerning their present or future care, protection, training, and personal relationships in this Commonwealth is meager. Thus, the requirements of the Uniform Child Custody Jurisdiction Act have not been satisfied and Pennsylvania does not possess subject-matter jurisdiction over this dispute.

Under these circumstances, we hold that the trial court properly ruled on the father’s contempt petition under its enforcement jurisdiction, but that it did not possess subject-matter jurisdiction to modify the existing visitation order. Accordingly, the order of the court is reversed as to that modification. Jurisdiction is not retained.

      . The definition of “custody determination," 42 Pa.C.S.A. § 5343, includes within it that pertaining to visitation rights, as in this case.

      . Regardless of our decision on the court’s power to modify the existing visitation order, as our court has had occasion to state recently, ”[t]here can be no question that courts have the inherent power to enforce compliance with their lawful orders through civil contempt.” Commonwealth ex rel. Taylor v. Taylor, 332 Pa.Superior Ct. 67, 480 A.2d 1188 (1984). (citations omitted.) Thus, the trial court had the power to decide the contempt issue on the part of the mother, as part of its enforcement jurisdiction.

      . We believe that a full determination of the best interests of the children in this case should be commenced, as needed, in New York, the state with proper jurisdiction, to modify the June 18, 1982 order concerning visitation.
      Our decision today does not affect the jurisdiction of the trial court regarding issues of child support which may be pending. Commonwealth ex rel. Jones v. Jones, 272 Pa.Superior Ct. 417, 416 A.2d 526 (1979).


author: PER CURIAM:

text:
    483 A.2d 933
    COMMONWEALTH of Pennsylvania, Appellant v. Victor M. SNYDER, Steven Clampers, Michael Marino, Vic Snyder, Inc.
    Superior Court of Pennsylvania.
    Submitted May 4, 1984.
    Filed Oct. 26, 1984.

      Sandra L. Elias, Deputy District Attorney, Media, for Commonwealth, appellant.
    Joseph M. Fioravanti, Media, for Snyder, etc., appellees.
    Frank J. Marcone, Media, for Clampers, appellee.
    Before CIRILLO, DEL SOLE and POPOVICH, JJ.
   PER CURIAM:

A grand jury investigation into the business practices of the plumbing concern Vic Snyder, Incorporated, led to the filing of criminal charges against the corporation and several of its employees. The defendants were charged with theft by deception, deceptive business practices, and conspiracy.

After preliminary hearings, appellee Vic Snyder, Inc. was held for trial on four counts of each offense under the corporate liability provisions of the Crimes Code, 18 Pa.C.S. § 307(a); appellee Vic Snyder, owner and president of the corporation, was held on two counts of each offense; appel-lee Michael Marino on one count of each; and appellee Steven Clampers one count of each.

Appellees petitioned for writs of habeas corpus in the Court of Common Pleas of Delaware County. After reviewing the preliminary hearing records, the court granted the requested relief as to all counts against the corporation, Snyder, and Marino, and as to the conspiracy count against Clampers. The Commonwealth appeals the grants of habeas corpus relief, having admitted it would have no additional evidence to present against the defendants were rehearings to be granted.

The question for determination by this Court, following a review of the record from the court below, is to determine whether the evidence received at the preliminary hearing presented sufficient probable cause to believe that the appellees committed the offenses for which they are charged. The quantity and quality of evidence presented there “should be such that if presented at trial in court, and accepted as true, the judge wold be warranted in allowing the case to go to the jury.” Commonwealth ex rel. Scolio v. Hess, 149 Pa.Super. 371, 27 A.2d 705 (1942). The Commonwealth’s burden at a preliminary hearing is to establish at least prima facie that a crime has been committed and that the accused is the one who committed it. Commonwealth v. Mullen, 460 Pa. 336, 333 A.2d 755 (1975). This means that at a preliminary hearing, the Commonwealth must show the presence of every element necessary to constitute each offense charged and the defendant’s complicity in each offense. Proof beyond a reasonable doubt is not required, nor is the criterion to show that proof beyond a reasonable doubt is possible if the matter is returned for trial. However, proof, which would justify a trial judge submitting the case to the jury at the trial of the case, is required. Inferences reasonably drawn from the evidence of record which would support a verdict of guilty are to be given effect, Commonwealth v. Rodgers, 235 Pa.Super. 106, 340 A.2d 550 (1975), and the evidence must be read in the light most favorable to the Commonwealth’s case. Commonwealth v. Zeringo, 214 Pa.Super. 300, 257 A.2d 692 (1969). Prosecutorial suspicion and conjecture are not evidence and are unacceptable as evidence.

Our function is to take the facts proven by the Commonwealth at the preliminary hearing and to determine whether the sum of those facts fits within the statutory definition of the types of conduct declared by the Pennsylvania legislature in the Crimes Code to be illegal conduct. If the proven facts fit the definition of the offenses with which the appellees are charged, then a

prima facie case was made out as to such offense or offenses. If the facts do not fit the statutory definitions of the offenses charged against the appellees, then the appellees are entitled to be discharged.

Commonwealth v. Lynch, 270 Pa.Super. 554, 581-82, 411 A.2d 1224, 1238-39 (1979), modified in Commonwealth v. Wojdak, 502 Pa. 359, 466 A.2d 991 (1983). Accord, Commonwealth v. Gray, 322 Pa.Super. 37, 469 A.2d 169 (1983); Commonwealth v. Rick, 244 Pa.Super. 33, 366 A.2d 302 (1976). See also Commonwealth v. Davis, 308 Pa.Super. 204, 454 A.2d 92 (1982) (allocatur refused, Feb. 28, 1983).

We turn to an examination of the evidence in this case, which revolves around four separate business transactions between Vic Snyder, Inc. and members of the general public.

I. Randolph Transaction

In December of 1979, Alphonso Randolph of Parkside, Pa. called Vic Snyder, Inc. to repair a leak in his ceiling. The corporation dispatched salesman Alfred Rossino to the Randolph home. Although Rossino had no plumbing expertise, he represented himself to Randolph as a “master plumber,” and told Randolph that, among other things, his “curb trap” needed to be replaced. Randolph entered into a contract under which the work would be done for $1850, to be paid in' installments.

The next day, John Sciblo, a subcontractor, and several other workmen began work on the Randolph job. When Sciblo exposed the old curb trap he could see water flowing through it, which indicated that it was functioning properly. He telephoned Vic Snyder, Inc., and informed them that the curb trap was working, but was told by an unidentified person to replace the curb trap anyway.

That evening Rossino returned to have Mr. Randolph complete bank forms in connection with the financing arrangement. Randolph stated that he was dissatisfied because there was still a leak in his ceiling and the price was too high. Randolph indicated that he might not sign the financing papers. Rossino then told Randolph that the work was not completed and asked what Randolph thought would be a fair price. Randolph responded with the figure of $1000. Rossino, after a telephone call to his “boss,” redrafted the contract with a renegotiated price of $1200. The following day workmen from Vic Snyder, Inc. returned to the site and finally remedied the leak.

Subsequently, Detective William Hannum spoke with Rossino about the Randolph job. Rossino recalled the job as the one where he had sold a curb trap the customer didn’t need. Rossino also told Hannum that he had picked the contract price “out of the air.”

Based on this evidence, the district judge bound the corporate defendant and Vic Snyder individually over for trial. Rossino also was held for trial, but was later discharged based on the running of the statute of limitations. He is not a party to this appeal.

The Commonwealth’s theory of the case is that Rossino’s actions violated sections 3922 and 4107 of the Crimes Code, relating to theft by deception and deceptive business practices; that Vic Snyder can be held as an accomplice and conspirator to Rossino’s actions; and that the corporation can be held vicariously liable for the actions of Snyder as a high managerial agent of the corporation. See 18 Pa.C.S. § 307(a)(3), (f).

We will accept for the moment that the Commonwealth proved that Rossino, fobbing himself off as a “master plumber,” intentionally deceived Randolph into buying an unneeded curb trap and memorialized the sale in a false or misleading written contract, and that this conduct constituted theft by deception and deceptive business practices under the Crimes Code. The Commonwealth’s case against Snyder and the corporation, however, necessarily depends upon proof that Snyder was an accomplice or a conspirator to the actions of Rossino alleged to be illegal.

The Crimes Code defines an accomplice as follows:

A person is an accomplice of another person in the commission of an offense if:
(1) with the intent of promoting or facilitating the commission of the offense, he:
(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other person in planning or committing it.

18 Pa.C.S. § 306(c)(1).

The elements of a conspiracy are set out at id. § 903(a):

(a) Definition of conspiracy. — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

We find an inadequate basis in the Commonwealth’s evidence to establish any complicity on the part of Snyder sufficient to hold him as an accomplice or conspirator to Rossino’s actions. There is no direct evidence whatsoever of Snyder’s involvement in the Randolph deal. The Commonwealth maintains, however, that the circumstantial evidence of two telephone calls placed to Vic Snyder, Inc., sufficiently links Snyder to Rossino’s deceptive machinations. The evidence of the first such call showed only that some unidentified person at Vic Snyder, Inc. told Sciblo to replace the curb trap even though it was functioning properly. In the absence of any evidence as to who the person was we cannot infer that it was Snyder. It may just as well have been Rossino. The second call, purportedly from Rossino to his “boss,” led to the contract renegotiation. However, once again the identity of the “boss” remained unproven. If Rossino’s “boss” was indeed on the other end of the line, and supposing it was Snyder, his apparent approval of a lowering of the contract price was entirely consistent with the lawful activity of renegotiating a contract with a dissatisfied customer, and provides only the scantest basis to infer that Snyder knew about or sanctioned replacement of the properly functioning curb trap.

In sum, the Commonwealth’s evidence against Snyder and the corporation in the Randolph case consisted entirely of speculative inferences, which are insufficient to establish a prima facie case. Commonwealth v. Prado, 481 Pa. 485, 393 A.2d 8 (1978). We must uphold the Court of Common Pleas in dismissing the charges against Vic Snyder and the corporate defendant in the Randolph affair.

II. Davis Transaction

In December of 1981 Eva Davis was experiencing a problem with her backyard patio drain. Raw sewage was backing up out of the drain onto the patio. She called a plumber, who could not unclog the drain. She then called Vic Snyder, Inc., which sent appellee Michael Marino to assess the problem.

Marino told Howard Davis, Eva Davis’s son, that a new sewer line from the house to the sewer main was needed. Marino paced off the distance from the house to the street, and determined that fifty feet of cast iron sewer pipe would be needed to complete the job. Marino and Howard then executed a contract for the work to be done for $1500.

With a backhoe, several workmen attempted to locate the Davises’ sewer line. After searching for two or three hours, they finally struck the line, which they discovered did not run fifty feet to the sewer main, but instead ran only two or three feet to the neighbor’s property line where it connected with a common pipe leading to the sewer main. Consequently, repairing the Davises’ pipe required only two to three feet of pipe rather than the fifty feet called for in the contract.

Anthony Tomczak, a plumber on the job, called Vic Snyder, Inc., to inform the office that the contract could not be performed as specified. Marino was sent back to the job site. Upon arriving and being apprised of the situation, Marino told Tomczak that he (Marino) would have to talk to Snyder, and left to make a phone call. When Marino returned he told Tomczak to connect the Davises’ line to the common pipe, but not to tell the Davises about the changed circumstances.

After examining the area of excavation, Howard Davis determined that fifty feet of pipe had not been laid. He later confronted Marino with his discovery and requested a reduction in the contract price. Marino refused to lower the price, justifying his refusal by declaring that labor and equipment costs accounted for most of the contract price.

The district justice found prima facie cases of theft by deception, deceptive business practices, and conspiracy against Marino and the corporation, but dismissed charges against Vic Snyder. Before us is the propriety of the trial court’s order overturning the finding of a prima facie case against Marino and the corporation.

With regard to the charges of theft by deception and deceptive business practices against Marino, we are constrained to disagree with the court’s conclusion that a prima facie case was not shown.

Theft by deception is defined at 18 Pa.C.S. § 3922(a):

(a) Offense defined. — A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally:
(1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;
(2) prevents another from acquiring information which would affect his judgment of a transaction; or
(3) fails to correct a false impression which the deceiver previously created or reinforced____

The statute defining deceptive business practices states, in pertinent part:

(a) Offense defined. — A person commits a misdemean- or of the second degree if, in the course of business, he:
(2) sells, offers or exposes for sale, or delivers less than the represented quantity of any commodity or service;
(6) makes a false or misleading written statement for the purpose of obtaining property or credit____

Id. § 4107.

It is true, as the trial court noted, that before excavation began Marino was in no better position than the Davises to know that their sewer line did not run all the way to the street. Thus, Marino is not chargeable with intentional deception for originally contracting with the Davises to lay fifty feet of pipe.

However, there is ample evidence that once Marino became aware that the job required only two to three feet of pipe rather than fifty, he actively tried to conceal this information from the Davises. Thus, he instructed Tomc-zak to go ahead with the work without notifying the Davis-es of the changed specifications. Only after Howard Davis, acting on his own information, requested a reduction in the contract price due to the discrepancy between the work contracted for and that completed did Marino admit to using less pipe than the contract specified. Only then did Marino attempt to justify his earlier failure to inform the Davises of the changed conditions, by maintaining that labor and equipment costs accounted for the bulk of the contract price anyhow.

The trial court placed great reliance on the factual accuracy of Marino’s belated representations to the Davises. Thus, the court accepted as fact that labor and equipment costs were the major components of the contract price, and the cost of the pipe but a “minimal” component. We question the court’s reliance on these representations, as there is no substantial evidence in the record that would allow the court with any precision to compare the costs of pipe, labor, and equipment used on the Davis job. Moreover, it stands to reason that had the workmen had to install fifty feet of pipe rather than three, the task would have consumed a proportionately greater amount of time, labor, and equipment.

In our view, Marino’s attempt to conceal the changed conditions from the Davises bespeaks, at least on prima facie consideration, the dishonesty and deceitful intent necessary to support a conviction for theft by deception. See Commonwealth v. Schomaker, 501 Pa. 404, 461 A.2d 1220 (1983); Commonwealth v. Posavek, 278 Pa.Super. 265, 420 A.2d 532 (1980). “Concealment of an act, which, owing to the circumstances, may or may not be criminal, has always been regarded as evidence that the act was criminal.” Buckley v. Massachusetts Bonding & Insurance Co., 113 Wash. 13, 26, 192 P. 924, 929 (1920).

Moreover, Marino’s attempt at concealment was precipitated when plumber Tomczak halted work to inform headquarters that the contract could not be performed as specified. The circumstances surrounding the attempted deception belie a finding that the difference between the job done and the job contracted for was inconsequential. The record on the contrary supports an inference that Marino augmented the payment received from the Davises by falsely representing to them that they had gotten work of equal value to that contemplated in the contract.

We hold the evidence sufficient to show prima facie that Marino committed theft by deception by intentionally fostering a false impression that the work done by his company was the same in extent or value as that contracted for. See 18 Pa.C.S. § 3922(a)(l)-(3). We also find sufficient prima facie evidence to show that Marino engaged in deceptive business practices by delivering less than the bargained-for quantity of goods or services to the Davises, and by representing in writing that the greater quantity had been provided. See id. § 4107(a)(2), (6).

However, we agree with the trial court that there was not enough evidence to link Vic Snyder, Incorporated to criminal activity in the Davis transaction, nor to link Marino with an alleged conspiracy with the corporation.

The Commonwealth’s evidence against the corporation, and against Marino on the conspiracy count, consists of the unadorned testimony that Marino telephoned Vic Snyder before acting in regard to the Davis matter. The Commonwealth would have us infer that because Vic Snyder was intimately involved in the day-to-day operations of Vic Snyder, Inc., he must have directed, or at least known about, the deception practiced upon the Davises. The Commonwealth concludes that the corporation may be held vicariously liable for the part of Snyder, its president, in the Davis affair. See id. § 307(a)(3).

Suffice it to say that the Commonwealth’s evidence implicating Snyder in the Davis transaction rises barely above the level of innuendo, and falls well below the level necessary to prove a prima facie case. Cf. Commonwealth v. Wojdak, 502 Pa. 359, 466 A.2d 991 (1983); Commonwealth v. Daubner, 288 Pa.Super. 47, 431 A.2d 280 (1981). Therefore, on the Davis matter, we uphold the grants of habeas corpus to the corporation and to Marino on the conspiracy count.

III. Eckert Transaction

The drain in the kitchen sink of Mr. and Mrs. Ernest H. Eckert of Ardmore had been clogging continually for years. The efforts of two separate plumbers had been ineffectual in fixing the drain. In March of 1982 the Eckerts contacted Vic Snyder, Inc. about the problem. The company sent professional drain cleaner Daniel Hitchner to the Eckert abode, but after an hour and a half of work Hitchner too failed to clear the drain, and recommended that the Eckerts solicit the opinion of a plumbing contractor.

Later, appellee Steven Clampers of Vic Snyder, Inc., visited the Eckert home unsummoned and surveyed the situation. Clampers told the Eckerts that exploratory work would have to be done to locate and examine the kitchen drain pipe, and the parties contracted for Vic Snyder, Inc. to do the job for $650.

In order to find the source of the problem with the drain pipe, workmen had to tear up part of a double-thick concrete floor in the Eckerts’ basement. The excavation exposed a ten-foot length of pipe that had disintegrated. Although little more than this ten feet of pipe was visible, Clampers told Mr. Eckert that the pipe was “gone,” indicating, according to Eckert’s testimony, that the entire length of kitchen drain pipe, some thirty-five feet, was defective and had to be replaced.

Eckert then signed a contract calling for Vic Snyder, Inc., to replace the drain pipe for a fee of $14,250, less a 10% senior citizen’s discount (although, as Eckert told Clampers, he was not a senior citizen). Eckert later testified that although he thought the contract price was outrageous, he felt compelled to sign at the time because his kitchen sink was nonfunctional, his basement was all dug up and a terrible stench emanating from it, and he figured that Vic Snyder, Inc. had started the job and had to complete it. A plumbing expert called by the Commonwealth at the preliminary hearing testified to the effect that the price charged Mr. Eckert was well over double the fair price for the job, including profit.

After the rotted section of pipe had been exposed, Daniel Hitchner, the drain cleaner, was called in again to clean out the remainder of the line. He ran a cable through the line and was able to effect a clear passage; in addition, he ran water at high pressure through the line for fifteen minutes without congestion. From this he concluded, as he later testified, that the unexposed portion of the line was in perfect condition.

A few days after Hitchner had cleaned the drain pipe which was to be replaced, he was on the job site at the Eckert home when he was called to the telephone to talk to Vic Snyder. Snyder told Hitchner to do whatever Clampers said with regard to cleaning the drains there. Shortly thereafter, Clampers instructed Hitchner to clean all the drains in the Eckert house to “make the price bigger.” Hitchner left the Eckert job without cleaning all the drains as Clampers had instructed him.

Subsequently, in the course of the investigation into the business practices of Vic Snyder, Inc., Detective William Hannum was told by Vic Snyder that he personally had set the price on the Eckert job. Also during the course of the investigation, Snyder called a meeting for employees who had been involved in the Eckert affair. He contacted Daniel Hitchner about attending the meeting, and asked Hitch-ner what he was going to say to the investigating authorities. Hitchner replied that he was going to tell the truth, including the fact Clampers had told him to clean all the Eckerts’ drains to inflate the price. Snyder then remonstrated Hitchner not to tell the authorities what Clampers had said. Hitchner insisted he would tell the truth and refused to come to the meeting. Later that same day, Snyder telephoned Hitchner, who was on a house call, and fired him.

The district justice found a prima facie case of theft by deception, deceptive business practices, and conspiracy against both Clampers and the corporation in connection with the Eckert job. The trial court granted habeas corpus on all charges against the corporation, and on the conspiracy charge against Clampers.

All counts against the corporation are premised on its vicarious liability for the acts of Vic Snyder. The Crimes Code, at 18 Pa.C.S. § 307(a)(3), provides:

Liability of organizations and certain related persons (a) Corporations generally. — A corporation may be convicted of the commission of an offense if:
(3) the commission of the offense was authorized, requested, commanded, performed or recklessly tolerated by the board of directors or by a high managerial agent acting in behalf of the corporation within the scope of his office or employment.

Snyder’s status as “high managerial agent” of the corporation is undisputed. The Commonwealth’s case against the corporation thus depends on a sufficient showing that Snyder “authorized, requested, commanded, performed or recklessly tolerated” the commission of theft by deception of deceptive business practices against the Eckerts.

On the conspiracy counts, it was the Commonwealth’s burden to establish a collusive agreement to commit the offenses of theft by deception or deceptive business practices. See 18 Pa.C.S. 903(a); Commonwealth v. Olds, 322 Pa.Super. 442, 469 A.2d 1072 (1983); Commonwealth v. Graves, 316 Pa.Super. 484, 463 A.2d 467 (1983). Shared criminal intent is a sine qua non of the crime of conspiracy. Commonwealth v. Schomaker, supra; Commonwealth v. Horner, 497 Pa. 565, 442 A.2d 682 (1982); see also Commonwealth v. Ruffin, 317 Pa.Super. 126, 463 A.2d 1117 (1983).

Proof of a conspiratorial agreement between Snyder and Clampers to commit the subject offenses necessarily would prove that Snyder at the very least “recklessly tolerated” the offenses. Thus, a finding that there was sufficient proof of a conspiracy would require us to reinstate not only the conspiracy count against Clampers, but also all charges lodged against the corporation on the theory of vicarious liability. The conspiracy alleged in this particular case is one to commit the crimes of theft by deception and deceptive business practices, both of which require a showing of fraudulent intent. Commonwealth v. Maleno, 267 Pa.Super. 560, 407 A.2d 51 (1979). We thus examine the words, conduct, and attendant circumstances of the alleged conspirators for evidence of an intent to defraud the Eckerts. See Commonwealth v. Posavek, supra.

The acts of Clampers tending to establish his fraudulent intent were that he falsely represented to the Eckerts that their entire kitchen drain was “gone,” when in fact only a portion of the line was defective; and that he attempted to pad the contract with make-work (superfluous drain cleaning). The fact finder could infer from these acts that the Eckerts were intentionally misled as to the necessity, amount, or value of the work they received. See 18 Pa.C.S. § 3922(a); id. § 4107(a)(2); Commonwealth v. Joy, 253 Pa.Super. 177, 384 A.2d 1288 (1978) (false representations as to necessity or value of work done supported conviction for theft by deception). In addition, Clampers’s deceptive representations to the Eckerts were memorialized in a written contract, on the basis of which the corporation obtained payment or credit. See 18 Pa.C.S. § 4107(a)(6). There was sufficient evidence of Clampers’s intent to commit theft by deception and deceptive business practices even though much of the work done for the Eckerts was legitimate and therefore some portion of the payment obtained from them was not based on fraud. See Commonwealth v. Bentley, 302 Pa.Super. 264, 448 A.2d 628 (1982).

The evidence of Snyder’s complicity in the culpable acts of Clampers is entirely circumstantial. Nevertheless, due to the inchoate nature of a conspiracy, direct evidence of an explicit agreement is seldom attainable; thus a conspiracy ordinarily must be inferred from the relation, conduct, and circumstances of the parties, and may be proven by circumstantial evidence alone. Commonwealth v. Derr, 501 Pa. 446, 462 A.3d 208 (1983); Commonwealth v. Kennedy, 499 Pa. 389, 453 A.3d 927 (1982); Commonwealth v. Dolfi, 483 Pa. 266, 396 A.2d 635 (1979); Commonwealth v. Davis, 312 Pa.Super. 85, 458 A.2d 248 (1983); Commonwealth v. Davenport, 307 Pa.Super. 102, 452 A.2d 1058 (1982); Commonwealth v. Tumminello, 292 Pa.Super. 381, 437 A.2d 435 (1981).

In the light of these principles, outlines of a conspiratorial agreement between Snyder and Clampers begin to emerge. Snyder set the contract price of $14,250, exorbitant for the work done at the Eckert home. Although the Commonwealth did not allege that it was criminal merely to overcharge the Eckerts, we must consider the fact that the job was overpriced in conjunction with the circumstantial evidence showing Snyder’s imprimatur on the very aspects of the transaction as to which Clampers deceived the Ec-kerts. Snyder, who kept in frequent telephone contact with the job site, on one call specifically ordered a hesitant workman to replace the entire kitchen drain line, N.T. 3/2/83 at 192; on another he told Daniel Hitchner to do whatever Clampers instructed with regard to cleaning the drains, whereupon Clampers instructed Hitchner to run all the drains again to enhance the price, id. at 194. Where the conduct of the parties indicates they were acting in concert with a corrupt purpose in view, the existence of a conspiracy may properly be inferred. Commonwealth v. Esposito, 236 Pa.Super. 127, 344 A.2d 655 (1975); Commonwealth v. Schwartz, 210 Pa.Super. 360, 233 A.2d 904 (1967), aff'd, 432 Pa. 522, 248 A.2d 506 (1968), cert. denied, 398 U.S. 957, 90 S.Ct. 2161, 26 L.Ed.2d 541 (1970). Although the contract price had already been established by the time Snyder actively confirmed Clampers’s orders, the totality of the circumstances suggests that Snyder and Clampers were still trying to account for a contract price that they both knew to be far out of proportion to the work actually needed at the Eckert home.

We also cannot ignore what transpired after the investigation of Snyder’s business had begun. On the day when employees of Vic Snyder, Inc. were to appear at an interview with investigating detectives, Snyder called a meeting of those involved in the Eckert transaction to “get the story straight” about what would be said to the detectives. N.T. 3/2/83 at 160. When Daniel Hitchner declined to attend the meeting, Snyder asked Hitchner what he was going to tell the investigators; Hitchner informed Snyder that he was going to tell the truth, that Clampers had told him to clean all the Eckerts’ drains to make the price bigger; Snyder told Hitchner he could not divulge Clampers’s spurious rationale for cleaning the drains; later that day, when Hitchner had not come to the meeting, Snyder fired him. In crimes involving fraudulent intent, subsequent statements and conduct of the accused revealing a culpable state of mind are often relevant to establish the requisite mens rea at the time of the alleged criminal acts. United States v. Stoehr, 196 F.2d 276 (3rd Cir.), cert. denied, 344 U.S. 826, 73 S.Ct. 28, 97 L.Ed. 643 (1952). “Acts, conduct, and declarations on the part of the accused showing a desire or disposition to conceal the crime or the results of the crime are generally admissible against him, provided there is other evidence of his participation in the crime.” 22A C.J.S. Criminal Law § 624 (1961). A conspiracy may be proven by subsequent acts if those acts support an inference of prior agreement. Commonwealth v. Stephens, 231 Pa.Super. 481, 331 A.2d 719 (1974); Commonwealth v. Kelson, 134 Pa.Super. 132, 3 A.2d 933 (1939). Here Snyder’s subsequent acts tend to prove that a corrupt confederation formed to implement criminal activity at the Eckert residence was now being turned to the purpose of concealing that activity.

We are mindful that mere grounds for suspicion and conjecture are insufficient bases for a finding of probable cause. Commonwealth v. Wojdak, supra. When the Commonwealth relies on circumstantial proof to establish an inference, the test is whether the fact to be inferred, here a corrupt agreement between Snyder and Clampers, is “more likely than not” to flow from the facts proven. Id.; Commonwealth v. McFarland, 452 Pa. 435, 308 A.2d 592 (1973). After a careful study of the evidence, we find sufficient probable cause to believe more likely than not that Snyder and Clampers were in collusion to commit the crimes of theft by deception and deceptive business practices. Thus, the conspiracy count against Clampers and all counts against Vic Snyder, Inc., must be reinstated in the Eckert case.

IV. Emmens Transaction

In April of 1982, Calvin Emmens was having serious problems with a drain in his home. Every time a toilet was flushed, the water would back up into the kitchen sink. Emmens unsuccessfully tried home remedies for the problem, then engaged an emergency drain cleaning service. The drain cleaners were able to clear the line temporarily, but a few days later sewage was backing up again. After cleaning the line a second time, the cleaners suggested to Emmens that the stack pipe in his basement might be broken. Emmens then called Vic Snyder, Inc., in on the problem. A representative of the corporation came to the house, made an inspection, and informed Emmens that the stack pipe was rotted or broken. The pipe was encased in concrete to a height of about five feet, and the concrete had to be chipped away for the pipe to be replaced. Emmens agreed to pay $500 to have the work done.

Before replacing the pipe, the corporation dispatched Daniel Hitchner to the Emmens residence to see if he could clean the line. When Hitchner arrived, the basement floor of the Emmens house was covered with raw sewage. With a plumber’s snake, Hitchner effectuated a clear passage through the drain. He telephoned Vic Snyder, Inc., and told Vic Snyder personally that the line was clear and the stack pipe operational. Nevertheless, Snyder sent plumbers to the Emmens residence to remove and replace the stack pipe.

The Commonwealth theorizes that since the stack pipe was embedded in concrete and hence inaccessible to physical examination, the representation to Emmens that it was defective must have been unfounded. Snyder’s decision to go ahead with replacement of the pipe after Hitchner had told him it was functional establishes, the Commonwealth argues, a prima facie case of theft by deception and deceptive business practices against Snyder and the corporation.

The Commonwealth relies heavily on the opinion of Daniel Hitchner to establish that the pipe did not in fact need to be replaced. Hitchner, who was not a plumber, arrived at his opinion based on the fact that he had been able to clear the whole line and had found no defects in it. However, the line had been cleaned before by another drain cleaner and the solution had proved only temporarily effective. The first drain cleaner was of the opinion that the stack pipe was broken, and told Mr. Emmens it would probably have to be replaced. The Commonwealth points out that the first drain cleaner did not have a plumber’s snake long enough to plumb the entire line as Hitchner did, and contends that Hitchner’s assessment of the pipe’s condition is therefore entitled to greater weight. However, we find it more significant that once the corporation replaced the stack pipe, the problems Mr. Emmens had had with sewage backing up into his sink ceased. Essentially the evidence discloses a difference of opinion as to the source of Mr. Emmen’s difficulties with his plumbing. We are unable to conclude with any certainty from this evidence that Emmens was the victim of false or deceptive representations. Therefore, a prima facie case that the crimes were committed was not made out, and we must uphold the decision of the trial court dismissing the charges against Snyder and the corporation.

The orders appealed from the Court of Common Pleas of Delaware County, granting habeas corpus relief to the appellees, are affirmed in part and reversed in part in accordance with the mandates of this opinion.


text:
    483 A.2d 943
    JAY DEE CONTRACTORS, INC., and Fireman’s Fund Insurance Companies v. NATIONAL MINE SERVICE CO., INC. successor in interest to Greensburg Manufacturing Company, A Corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued June 19, 1984.
    Filed Oct. 26, 1984.
    Petition for Allowance of Appeal Granted July 15, 1985.

      Robert L. Frantz, Pittsburgh, for appellant.
    Bernard J. McAuley, Pittsburgh, for appellees.
    Before TAMILIA, JOHNSON and MONTGOMERY, JJ.
   PER CURIAM:

Appellant, National Mine Service Co., Inc., takes this appeal from the order of the court of common pleas dismissing appellant’s petition, in which appellant asked that appel-lee-plaintiffs’ complaint be stricken for failure to prosecute the case, pursuant to Allegheny County Rule of Civil Procedure, Rule 229(e). The hearing court denied appellant’s petition, finding the local rule to be in conflict with Pa.R. J.A. 1901 and thus invalid. Because the present appeal is from a nonappealable, interlocutory order, it must be quashed and, therefore, we do not reach the merits.

It is a well established rule of law that an appeal will lie only from final orders, unless expressly permitted by statute. William H. O’Brien & Son v. Virginia Mansions Apartments, Inc., 277 Pa.Super. 568, 419 A.2d 1295 (1980). In Basalyga v. Hohensee, 431 Pa. 191, 245 A.2d 255 (1968), the supreme court ruled that the denial of a motion to dismiss, made on the ground that plaintiff failed to prosecute his case with diligence, was an interlocutory order and not appealable. Similarly, in William H. O’Brien & Son, Inc. v. Virginia Mansions Apartments, Inc., supra, we quashed as interlocutory an appeal taken from an order of the trial court en banc dismissing defendant’s exceptions to the denial of defendant’s petition for non pros. Both of these cases are on point with the appeal now before us. Appellant’s appeal, being from the denial of a motion to strike for failure to prosecute the case, is based upon an interlocutory order. As such, it must be quashed.

Were we to reach the merits, we would be hard pressed to conclude that a conflict exists between Allegheny County Rule of Civil Procedure, Rule 229(e) and Pa.R.J.A. 1901. Cf. Stringer v. Kaytes, 286 Pa.Super. 551, 555, 429 A.2d 660, 662 (1981) (local rule’s silence as to any notice requirement does not place it in conflict with Pa.R.C.P. 236). See also Austin v. SEPTA, 304 Pa.Super. 56, 450 A.2d 98 (1982); Corcoran v. Fiorentino, 277 Pa.Super. 256, 419 A.2d 759 (1980). It would also appear to us that the question of due process vis-a-vis dismissals for failure to prosecute was adequately addressed in Link v. Wabash Railroad Company, 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) (district court may dismiss complaint for failure to prosecute even without affording notice of its intention to do so or providing an adversary hearing before acting). From the record before us, appellees’ case was automatically terminated under Rule 229(e) before appellees filed their complaint. Nevertheless, while we sympathize with the desire of appellant to secure a declaratory judgment on the termination of this case, we do not find the order from which this appeal was taken to be a final one and therefore we are without jurisdiction to hear it. See Toll v. Toll, 293 Pa.Super. 549, 439 A.2d 712 (1981), aff'd 498 Pa. 536, 448 A.2d 1379 (1982).

Appeal quashed.