text:
    531 A.2d 509
    Robert W. ANKROM v. Patricia A. ANKROM. Appeal of USX CORPORATION, Formerly United States Steel Corporation.
    Superior Court of Pennsylvania.
    Argued March 17, 1987.
    Filed Sept. 24, 1987.

      James T. Carney, Assistant District Attorney, Pittsburgh, for appellant.
    J. Marie Webb, Waynesburg, Assistant Public Defender, for appellee.
    Before ROWLEY, DEL SOLE and TAMILIA, JJ.
   ROWLEY, Judge:

This appeal presents the issue of whether an employer may collect, by means of a wage attachment, a judgment obtained by it against its employee as restitution for the employer’s satisfaction of a judgment against the employee and in favor of the employee’s former wife for debts unrelated to the employee’s support obligations. We hold that the employer’s judgment cannot be satisfied by a wage attachment order because it does not fall within one of the three exceptions to the statute exempting wages from attachment. 42 Pa.C.S. § 8127.

In February, 1985, following a lengthy history of proceedings in both Pennsylvania and Ohio commencing in the early 1980’s, U.S. Steel Mining Co., Inc. presented a motion to the Greene County Court of Common Pleas to allow it to attach the wages of its employee, Robert Ankrom, appellee, and to hold such payments in escrow in order to create a fund from which it could obtain restitution for an Ohio judgment paid by USX, the Mining Company’s parent corporation, and appellant herein. The judgment which USX paid was a judgment obtained by appellee’s former wife, Patricia Ankrom, against USX in an amount equal to an Ohio judgment which Patricia Ankrom had against appellee. Part of the judgment which Patricia Ankrom had against appellee was for child support, and part of it, as found by the trial court, represented appellee’s obligation “for settlement of marital property” to his former wife. USX contends that by its payment of the judgment against it, it has also satisfied the Ohio judgment in favor of Patricia Ankrom against Robert Ankrom.

Within a few weeks of Judge Grimes being elected and sworn in as President Judge of Greene County, in January, 1986, he ordered a hearing on the pending motion of U.S. Steel Mining Co., Inc. for February 17, 1986. That hearing was continued. On or about March 18, 1986, USX presented a motion to Judge Grimes requesting that two of the trial court’s earlier orders that prohibited the attachment of appellee’s wages be dissolved. An evidentiary hearing was ultimately held on August 14, 1986, following which the trial court entered the following order on August 19, 1986:

AND NOW, this 19th day of August, 1986, the U.S. Steel Mining Company, Inc., a subsidiary of USX, formerly United States Steel Corporation, is authorized to attach the sum of $2,811.21 from the wages of Robert W. Ankrom at a rate of no greater than $400.00 per month with the balance of $12,848.43 hereby entered as a judgment at the above number and term against Robert W. Ankrom.

It is this order from which USX has taken this appeal. The trial court, in entering its order, found that of the amount paid by USX to the former Mrs. Ankrom, only $2,811.21 was for “direct support” and “medical expenses.” The court held that such obligations were payable by attachment of appellee’s wages. The balance of the amount claimed by USX was, according to the trial court, “for settlement of marital property” and as to that amount USX “must be treated no differently than any judgment- debt- or /judgment creditor relationship under Pennsylvania law.”

It is important to note that Robert Ankrom has not appealed from that part of the order entering judgment in the amount of $12,848.43 against him nor from that part of the order authorizing his employer to attach his wages and collect an additional sum up to the amount of $2,811.21. Therefore, we do not have before us and do not decide the propriety of those parts of the order. On the contrary, the only question before us is whether the trial court erred in failing to authorize USX to collect its judgment in the amount of $12,848.43 by attaching Robert Ankrom’s wages.

USX argues that it should be authorized to attach Robert Ankrom’s wages to recover the $12,848.43 because Pennsylvania must give full faith and credit to an Ohio wage attachment order against it obtained by Patricia Ankrom in an effort to obtain satisfaction of her judgment against her former husband. This argument purports to make an issue out of matters entirely irrelevant to the order which has been appealed. The order from which USX has appealed makes no reference to enforcement of Patricia Ankrom’s Ohio judgment against her husband; nor does it authorize Robert Ankrom’s wages to be attached for payment to Patricia Ankrom in satisfaction of her judgment. The August 19, 1986 order also does not involve Patricia Ankrom’s Ohio judgment against USX for a sum equal to her judgment against Robert Ankrom. The August 19, 1986 order entered judgment for U.S. Steel Mining Co., Inc. and against Robert Ankrom. Thus any wage attachment of the $12,848.43 would be to satisfy a Pennsylvania judgment, i.e., the judgment obtained by U.S. Steel Mining Co., Inc. against Robert Ankrom on August 19, 1986. Appellant’s argument that the issue on appeal involves a question of applying the full faith and credit clause of the United States Constitution to an Ohio wage attachment order obtained by Patricia Ankrom for satisfaction of a judgment in favor of Patricia Ankrom and against Robert Ankrom diverts attention from the true nature of the order appealed from. We therefore hold that the full faith and credit clause does not require that appellee’s employer be permitted to attach his wages in order to satisfy its judgment.

As to the question of whether, under Pennsylvania law, USX may obtain satisfaction of its judgment against Robert Ankrom for $12,848.43 by means of a wage attachment, the law, as well as the public policy of Pennsylvania is unmistakeably clear that it cannot.

Pennsylvania law provides:

§ 8127. Personal earnings exempt from process
The wages, salaries and commissions of individuals shall while in the hands of the employer be exempt from any attachment, execution or other process except upon an action or proceeding:
(1) For support.
(2) For board for four weeks or less.
(3) Under the act of August 7, 1963 (P.L. 549, No. 290), referred to as the Pennsylvania Higher Education Assistance Agency Act.

42 Pa.C.S. § 8127.

The terms of this statute leave no doubt that a person’s wages may only be attached with regard to proceedings for one of three purposes: for support, for board for four weeks or less, or for an educational PHEAA loan. From all other types of proceedings to collect on a financial obligation, wages are exempt. In this case, U.S. Steel Mining Co. Inc.’s judgment against Robert Ankrom is not pursuant to the PHEAA Act, nor is it for board. It also is not for support since Robert Ankrom has no obligation to support his employer corporation. If the order which USX appeals had provided that appellant’s wages were to be attached and paid to Patricia Ankrom in satisfaction of Robert Ankrom’s obligation of support to her, this case would be in an entirely different posture. However, the order which has been appealed provides for a judgment in favor of U.S. Steel Mining Co., Inc. As such, the judgment cannot be enforced by a wage attachment under Pennsylvania law.

This conclusion is reinforced by the inherent public policy which supports the legislative determination to allow wage attachments to obtain compliance with one’s support obligations. One of the reasons for allowing wages to be attached to satisfy a support obligation is so that one’s dependents can be provided for to the fullest extent possible by the person who has the obligation to support them. In the absence of the ability to attach a person’s wages to satisfy the person’s support obligations, that person’s dependents would have to pursue more involved and time consuming means of enforcing the judgment for support, and in fact they may be unable to obtain any satisfaction of the judgment for support. The wage exemption statute provides a means by which spouses and children can expeditiously, directly and assuredly obtain the support to which they are entitled and which is esséntial to sustain their daily existence. No such need is presented in this case.

When the enforcement of a judgment for an obligation other than support is in issue, the public policy reasons for allowing wages to be attached have no application. Since the judgment U.S. Steel Mining Co., Inc. has against Robert Ankrom is not one for support, but is in the nature of restitution to a garnishee for the garnishee’s satisfaction of the debtor’s obligation, the public policy reasons for allowing wages to be attached to satisfy support obligations as well as the statutory exception itself are inapplicable. Because the instant case does not fall within one of the exceptions to the statute prohibiting wage attachments, the trial court’s order, to the extent that it does not allow Robert Ankrom’s wages to be attached to recover the $12,848.43, must be affirmed. Order affirmed.

      . The Ohio judgment obtained by Patricia Ankrom against USX was a default judgment imposed as a sanction for USX's failure to comply with a wage attachment order Patricia Ankrom had obtained from the Ohio courts to satisfy her judgment against appellee. According to the trial court’s opinion in this case, USX was provided two opportunities to appear in court to present its defense for failure to comply with the Ohio wage attachment order. However, USX failed to appear for either hearing, and therefore, the default judgment was entered.

      . See page 3 of United States Steel Corporation’s brief filed in the trial court on August 21, 1986.
      No satisfaction of either the Ohio judgment against USX or the Ohio judgment against appellee has been filed in the Pennsylvania proceedings pursuant to the Uniform Enforcement of Foreign Judgments Act. 42 Pa.C.S. § 4306. Patricia Ankrom’s Ohio judgment against appellee purportedly has been filed in Pennsylvania pursuant to the Uniform Enforcement of Foreign Judgments Act, and no party has argued otherwise. Therefore, whether or not there has been adequate compliance with the Act is not an issue before us and we do not address it.

      . During the course of earlier proceedings in the trial court, appellee raised the question of USX’s standing to litigate these matters. Since it was the parent corporation of appellee’s employer, U.S. Steel Mining Company, Inc., the trial court held that both corporations had standing to litigate the issues raised. No appeal was taken from that determination. Given this fact as well as the fact that USX has paid the Ohio judgment, and further that the appellee has not objected to USX’s standing to appeal, we conclude that USX is an "aggrieved party" with standing to appeal under Pa.R.A.P. 501. See: Louden Hill Farm, Inc. v. Milk Control Commission, 420 Pa. 548, 217 A.2d 735 (1966).

      . Even if this case involved a question of giving full faith and credit to an Ohio judgment, the result we would reach would be the same as our conclusion here because we would still have to apply Pennsylvania law to the question of whether the wages could be attached. The general rule is that the law of the forum determines the methods by which a foreign judgment may be enforced. Fire Insurance Co. v. Paste-Ups Unlimited, Inc., 368 F.Supp. 219 (D.C.N.Y.1973).


source: Caselaw Access Project

author: KELLY, Judge:

license: Public Domain

text:
    531 A.2d 513
    COMMONWEALTH of Pennsylvania v. Gerald M. LEVINE, Appellant.
    Superior Court of Pennsylvania.
    Argued May 13, 1987.
    Filed Sept. 23, 1987.

      William F. Manifesto, Pittsburgh, for appellant.
    Andrea F. McKenna, Assistant Deputy Attorney General, for Com., appellee.
    Before WIEAND, KELLY and POPOVICH, JJ.
   KELLY, Judge:

The sole issue raised by this appeal is the surprisingly novel question of whether a sentence of consecutive terms of probation may legally be imposed. Appellant, Gerald M. Levine was convicted of ten counts of violation of the fraud and abuse control section of the Public Welfare Code following entry of an open plea of nolo contendere to the charges. Appellant was sentenced, inter alia, to ten consecutive sentences of five-years probation. We find no merit in appellant’s contention that consecutive terms of probation are illegal, and affirm judgment of sentence.

We set forth the facts, and sentence, as stated by the trial court:

Dr. Levine was a ‘provider’ under the Department of Public Welfare Medical Assistance Program. As such he would, by contract, render dental service to Medical Assistance Recipients. In the instant cases, however, he fraudulently submitted invoices for payment which were not based upon actual and necessary services performed. As part of Defendant’s plea of nolo contendré [sic] he also agreed to restitution to the Office of the Attorney General Medicaid Fraud Control Section in the amount of Two Thousand Eighty-Two ($2,082.48) Dollars and forty-eight cents, and to restitution to the Department of Public Welfare in the amount of Twenty-four Thousand Eight Hundred Eighty-five ($24,885.00) Dollars. This Court then imposed a fine of Ten Thousand ($10,000.00) Dollars, payable to the County of Allegheny and sentenced Defendant to ten five-year probations, each imposed consecutively.

(Trial Ct. Op. at 1).

Appellant’s sole contention raised on appeal concerns the legality of his sentence of ten consecutive five-year probationary terms; in support of this contention, he argues the imposition of consecutive terms of probation is illegal because it is not expressly authorized by any statute. He notes that consecutive sentences of incarceration are specifically authorized by 42 Pa.C.S.A. § 9757, but no comparable authorization exists for probationary terms. He argues further that the sentencing statute, 42 Pa.C.S.A. § 9721, is ambiguous; and that the power to impose consecutive terms cannot be inferred from the sentencing code, “in light of the substantially different purposes served by probation and incarceration.” (Appellant’s brief.at 8). We find no merit in these contentions.

Express statutory authority for sentencing is granted to trial courts by 42 Pa.C.S.A. § 9721, which states in part:

§ 9721. Sentencing generally
(a) General rule. — In determining the sentence to be imposed the court shall, except where a mandatory minimum sentence is otherwise provided by law, consider and select one or more of the following alternatives, and may impose them consecutively or concurrently:
(1) An order of probation.
(2) A determination of guilt without further penalty.
(3) Partial confinement.
(4) Total confinement.
(5) A fine.

(Emphasis added). Section 9754, dealing more specifically with the alternative of probation, states in part:

§ 9754. Order of probation
(a) General rule. — In imposing an order of probation the court shall specify at the time of sentencing the length of any term during which the defendant is to be supervised, which term may not exceed the maximum, term for which the defendant could be confined, and the authority that shall conduct the supervision.

(Emphasis added).

We find that consecutive sentences of probation are expressly authorized by Section 9721. An order of probation is one sentencing alternative which shall be considered by the court, and is an alternative which, as with the other alternatives, may be imposed consecutively or concurrently. The fact that the legislature repeated its authorization for consecutive terms of incarceration in Section 9757 does not negate the clear authorization of consecutive terms of probation in Section 9721. Accordingly, a sentence of probation may be imposed consecutive to another sentence of probation.

Appellant argues nonetheless that Section 9721 is ambiguous because, while it is clear that several of the sentencing alternatives may be applied consecutively, it is unclear whether a single alternative may be applied consecutively. Therefore, appellant argues that this ambiguity must be resolved in favor of the accused. We disagree. The plain meaning of Section 9721 is that, when fashioning an appropriate sentence, the court may decide that any of the sentencing alternatives be imposed consecutively.

Our duty, in construing the statute in the face of challenges such as appellant’s, is to give effect to each section, and consistently construe similar provisions within the statute. 1 Pa.C.S.A. § 1932; Royal Indemnity Co. v. Adams, 309 Pa.Super. 233, 455 A.2d 135 (1983). We note our interpretation is the one consistent with prior interpretation of the statute. The predecessor to Section 9721 was found to be a clear and unambiguous enactment. Commonwealth v. Pierce, 497 Pa. 437, 441 A.2d 1218 (1982). The language utilized by the legislature in the predecessor remains unchanged in the current statute.

The Supreme Court interpreted the predecessor to Section 9721 as authorizing consecutive terms among the sentencing alternatives, i.e. incarceration followed by a consecutive sentence of probation. Commonwealth v. Pierce, supra. Consecutive sentences of incarceration have been deemed authorized for conviction of separate offenses occurring close in time. Commonwealth v. Green, 312 Pa.Super. 265, 458 A.2d 951 (1983). Similarly, pursuant to Section 9721, this Court has allowed imposition of consecutive sentences of incarceration on separate counts of the same indictments. Commonwealth v. Mayo, 273 Pa.Super. 383, 417 A.2d 701 (1980). The language which authorized consecutive sentences of incarceration must also authorize consecutive terms of probation if the language of Section 9721 is to be consistently construed. We find no ambiguity in the statute.

Appellant correctly states that Section 9754 contains the only statutory reference to the permissible length of a probationary term. (Appellant’s brief at 9). The language of Section 9754 acts to restrict the sentencing authorization granted in Section 9721. See 1 Pa.C.S.A. § 1933. This restriction states that the permissible sentence of probation is determined by reference to the maximum period of incarceration; as the maximum period of incarceration is determined by reference to consecutive sentencing, the corresponding maximum period of probation must also be computed by reference to consecutive sentencing. As Section 9754 provides the only express limit on sentencing a defendant to probationary terms, we will not act as a legislature and write other limits into the statute.

Appellant argues his sentence violates public policy considerations as expressed in federal law and cases. We deem appellant’s arguments regarding the comparable federal rule to be inapposite. First, the federal statute, 18 U.S.C.A. § 3651, expressly limits a period of probation imposed to a five year maximum term. Thus, federal cases apply express federal legislative mandate rather than public' policy objectives when limiting terms of probation. Second, our legislature has enacted no such limitation and thus appellant’s argument lacks basis in state law. Despite appellant’s contentions that public policy frowns upon consecutive terms of probation, this Court may not read into either Section 9721 or 9754 a limitation not expressed by the legislature, and not clearly stated by the language of the statute, under the guise of pursuing some alleged but unstated legislative intent. 1 Pa.C.S.A. § 1921(b); Worley v. Augustine, 310 Pa.Super. 178, 456 A.2d 558 (1983); Latella v. Commonwealth, Unemployment Compensation Board of Review, 74 Pa.Cmwlth. 14, 459 A.2d 464 (1983).

Appellant was sentenced to five years probation on each of ten counts of violation of the statute. He faced a potential maximum sentence of seven years incarceration on each of those counts. Thus, appellant’s sentence violates neither Section 9721 nor 9754. Finding no illegality in the imposition of consecutive terms of probation, we affirm.

Judgment of sentence affirmed.

WIEAND, J., joins.

POPOVICH, J., concurs in the result.

      . We need not address appellant’s arguments regarding the strict construction of penal statutes in favor of the accused, as we have found the statute to be unambiguous.

      . We note, had appellant’s sentence been vacated, appellant on remand could be sentenced, legally, to a maximum term of seventy (70) years imprisonment. Commonwealth v. Hunter, 321 Pa.Super. 333, 468 A.2d 505 (1983).


author: CERCONE, Judge:

text:
    531 A.2d 515
    COMMONWEALTH of Pennsylvania v. Robert Clayton RUDD, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 13, 1987.
    Filed Sept. 22, 1987.

      Bruce A. Barrett, Assistant Public Defender, Meadville, for appellant.
    John F. Spataro, Assistant District Attorney, Meadville, for Com., appellee.
    Before BECK, JOHNSON and CERCONE, JJ.
   CERCONE, Judge:

The question before us on appeal is whether a prior juvenile adjudication for driving under the influence of alcohol is a “conviction” for the purpose of mandatory minimum sentence enhancment under section 3731(e)(1) of the Vehicle Code. 75 Pa.C.S.A. § 3731. As an issue of first impression, we conclude that the trial court erred in treating for sentencing purposes appellant’s former adjudication of delinquency as a prior conviction.

The facts in this matter are not in dispute. Appellant was arrested and charged with driving under the influence of alcohol on May 23, 1986. Subsequently, he entered a plea of guilty and was sentenced on September 26, 1986 to a mandatory minimum sentence of thirty (30) days. In determining sentence, the trial court considered a previous adjudication of delinquency for driving under the influence which occurred in 1982 when the appellant was 17 years of age. Appellant’s Petition for Reconsideration of Sentence, urging that his juvenile adjudication not be considered a prior conviction for sentencing purposes, was denied. This timely appeal followed.

The source of our dilemma in this case is section 3731(e)(1) of the Vehicle Code. 75 Pa.C.S.A. § 3731(e)(1). This section, under which appellant was sentenced, provides in relevant part:

(1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment of:
(i) not less than 48 consecutive hours.
(ii) not less than 30 days if the person has previously been convicted of an offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years.

Id. (emphasis added).

The trial court, in sentencing, considered the adjudication of delinquency for driving under the influence of alcohol as an offense for which appellant had “previously been convicted” and therefore sentenced appellant for a term of imprisonment of 30 days rather than a minimum of 48 consecutive hours.

Our analysis of this issue is mindful of the directive that provisions of a penal statute are to be strictly construed. 1 Pa.C.S.A. § 1928(b)(1). Consequent to our common law system of jurisprudence is the use of analogy to apply or construe an ambiguous rule or provision. As employed below, the sentencing court apparently drew a favorable analogy between section 3731(e)(1) and the use of adjudications of delinquency in calculating a prior record score under the Sentencing Guidelines. 42 Pa.C.S.A. § 9721; 204 Pa.Code § 303.7(b). Indeed, section 303.7(b)(l)(ii) specifically provides that juvenile adjudications may be counted in the computation of a prior record score where:

There was an express finding by the juvenile court that the adjudication was for a felony or one of the weapons misdemeanors listed in subsection (a)(3). The offense occurred on or after the defendant’s 14th birthday; and [t]he currently sentenced offense is a felony.

From its reading of section 303.7, the trial court discerned that a conviction in the instant case under section 3731(e)(1), supra, was broad enough to include within its meaning all adjudications of delinquency. We are not, however, as persuaded by this reference to the Sentencing Guidelines. Unlike the Vehicle Code, the Sentencing Guidelines expressly provide for the use of juvenile adjudications as prior convictions in certain instances, supra. Section 303.7 of the Guidelines imposes strict limitations on the use of such adjudications in sentencing for crimes committed when the defendant is an adult. As we stated in Commonwealth v. Bivens, 337 Pa.Super. 216, 486 A.2d 984 (1985),

the Sentencing Commission, when drafting the Guidelines, meant for juvenile adjudications not to be counted in sentencing unless there was no doubt that the juvenile had been adjudicated delinquent for a specific offense that,would be a felony if committed by an adult. Otherwise, the juvenile adjudication may be counted against the adult defendant unfairly.

Id. at 986.

Thus, because of the express and limited nature of section 303.7 of the Guidelines, we cannot base our determination on the basis of the trial court’s finding. Rather, we turn to the terms of the pertinent statute for guidance.

Section 6501 of the Vehicle Code defines a “conviction” as including “a plea of guilty, a plea of nolo contendere, a finding of guilty by a court or unvacated forfeiture of bail or collateral deposited to secure a defendant’s appearance in court.” 75 Pa.C.S.A. § 6501(a). This definition is substantially similar to that contained in the Crimes Code: “There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a judgment, or a plea of guilty accepted by the court.” 18 Pa.C.S.A. § 109(3).

By contrast, an adjudication of delinquency under section 6354 of the Juvenile Act is not considered a criminal conviction:

(a) General rule. — An order of disposition or other adjudication in a proceeding under this chapter is not a conviction of crime and does not impose any civil disability ordinarily resulting from a conviction or operate to disqualify the child in any civil service application or appointment.
(b) Effect in subsequent judicial matters. — The disposition of a child under this chapter may not be used against him in any proceeding in any court other than at a subsequent juvenile hearing, whether before or after reaching majority, except:
(1) in dispositional proceedings after conviction of a felony for the purposes of a presentence investigation and report; or
(2) if relevant, where he has put his reputation or character in issue in a civil matter.

42 Pa.C.S.A. § 6354 (emphasis added). It is apparent, that the Juvenile Act, under which appellant’s charges were disposed of in 1982, draws a distinction between a “conviction” and an “adjudication.” This differentiation, moreover, is consonant with the purpose of the Juvenile Act in removing “from children committing delinquent acts the consequences of criminal behavior.” Id. § 6301(b)(2). See also id. § 6354, Official Comment (“[section 6354(a) ] continues existing policy, the heart of the differentiation of juvenile proceedings from criminal proceedings.”). As we observed in In the Interest of Leonardo, 291 Pa.Super. 644, 436 A.2d 685 (1985):

The purpose of juvenile proceedings is to seek treatment, reformation and rehabilitation, and not to punish. In the Interest of Tasseing H., 281 Pa.Super. 400, 422 A.2d 530 (1980).
While scholars may disagree with respect to the goals of our criminal justice system, there can be no doubt that at least one of the goals is punishment. It is in this criminal respect that the juvenile system differs from the adult criminal system.
The character of juvenile proceedings differs as well. In Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 1785, 44 L.Ed.2d 346 (1975), the Supreme Court recognized that the juvenile court system was designed to provide “[a] distinctive procedure and setting to deal with the problems of youth____”

Id., 291 Pa.Superior Ct. at 648, 436 A.2d at 687. Our Supreme Court has explained this fundamental distinction between juvenile and criminal proceedings: “The proceedings in [Juvenile Court] are not in the nature of a criminal trial but constitute merely a civil inquiry or action looking to the treatment, reformation and rehabilitation of the minor child. Their purpose is not penal but protective____” In re Holmes, 379 Pa. 599, 605, 109 A.2d 523, 525 (1954). See also F. McCarthy, Pennsylvania Juvenile Delinquency Practice and Procedure § 1-8 at 11-12 (1984). Accordingly, the use of prior adjudications of delinquency to enhance sentencing for adult criminal convictions would defeat the purpose of the Juvenile Act.

In light of the stated goal of the Juvenile Act and in the absence of an express inclusion of juvenile delinquency adjudications as convictions by the Vehicle Code, we believe that the trial court erred in including such adjudications for the purpose of sentence enhancement. We are of the opinion that this conclusion is consistent with the intent of the legislature in rehabilitating delinquent juveniles rather than subjecting them to criminal punishment.

Accordingly, the judgment of sentence is vacated. Remanded for resentencing in accordance with this decision. Jurisdiction relinquished.

BECK, J., concurs in the result.

      . This rule, as enunciated by Chief Justice Marshall in United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 5 L.Ed. 37 (1820), "is founded on the tenderness of the law for the rights of individuals, and the plain principle that the power of punishment is vested in the legislature and not the judicial department.” Id. at 79, 5 L.Ed. 37.

      . The lower court concluded that it was unlikely that the legislature sought to exclude juveniles from the recidivist ambit of section 3731(e)(1) as statistics indicate that young drivers as a group are not as safe as more mature drivers and that less onerous treatment of juveniles adjudicated delinquent for driving under the influence would only increase the risk of highway accidents. While we are convinced that the trial court’s position is well-taken, we believe that the expansion of section 3731(e)(1) to include juvenile adjudications in response to this problem is more appropriately the responsibility of the legislature.


author: WATKINS, Judge:

text:
    531 A.2d 518
    Florence G. DALESSANDRO v. Arthur D. DALESSANDRO, Appellant.
    Superior Court of Pennsylvania.
    Argued May 28, 1987.
    Filed Sept. 23, 1987.

      Bruce D. Desfor, Harrisburg, for appellant.
    Joseph F. Sklarosky, Wilkes-Barre, for appellee.
    Before CAVANAUGH, KELLY and WATKINS, JJ.
   WATKINS, Judge:

This case comes to us on appeal from an Order entered December 5, 1986, in the Court of Common Pleas of Luzerne County requiring the appellant, Arthur D. Dalessandro to pay appellee, Florence G. Dalessandro, support in the amount of four hundred ($400.00) dollars per week.

On November 23, 1984, appellee, Florence G. Dalessandro filed a civil complaint in support against the appellant, Arthur D. Dalessandro, in the Court of Common Pleas of Luzerne County. Hearings were held on February 28, March 11, April 15 and April 16, 1986, before the Honorable Frederick Edenharter, specially presiding. After transcription of the record, both parties submitted requests for findings of fact and conclusions of law. On December 1, 1986, Judge Edenharter entered a final order of support in the amount of Four Hundred ($400.00) Dollars per week. This appeal followed.

Appellant presents the following questions for our consideration:

I. When wife (appellee) testified that her needs and lifestyle were modest both before and after separation, did the trial court abuse its discretion by ordering husband to pay spousal support of four hundred dollars ($400.00) per week far in excess of wife’s needs?
II. Whether the court erred as a matter of law by requiring husband to pay spousal support in an amount exceeding one-third of husband’s net monthly income? (Appellant’s brief, p. 3)

With regard to appellant’s second issue, the court specifically found and appellant admits that he received sixty-five thousand dollars ($65,000.00) as his judicial salary and that he received investment income of nine thousand eight hundred twelve dollars and two cents ($9,812.02). Further appellant admits that Gene Lispi Chevrolet, Inc. provides him with a life insurance policy costing the company one hundred twenty dollars ($120.00) per month or fourteen hundred forty dollars ($1440.00) per year. Appellant complains, however, that the trial court did not make a specific finding nor does the record in any way support a finding that appellant received certain other perquisites from Gene Lispi Chevrolet, Inc.

When addressing the earnings, earning capacity and property of the appellant, Judge Edenharter concluded:

... (D)efendant receives a yearly judicial salary of $65,-000. per year along with medical coverage for himself and family. In 1985 he received investment income of $9,812.52. He is provided by Gene Lispi Chevrolet, Inc. with an up-to-date automobile for his personal use, including free maintenance. In addition, defendant is provided with an American Express card, a Gulf gas card, life insurance, and other personal living expenses from Gene Lispi Chevrolet, Inc. Defendant has a 50% interest in David Arthur Dalessandro, Inc. and Gene Lispi Chevrolet, Inc. He is part owner of Maple Development Corporation and holds a Yi interest therein. In addition, he is a Yard owner of 10-15 acres of land in Yatesville, Luzerne County. Defendant continues to live in the former marital residence, the deed to which is now in the name of the son.

(Trial court opinion, January 26, 1987, p. 4)

A review of the record and the briefs indicates that there is much confusion about exactly what was provided to the appellant by Gene Lispi Chevrolet, Inc. Further, the trial court accepted as findings of fact that appellant is a one-fifth owner of the Maple Development Corporation, that he is one-third owner of ten to fifteen acres of land in Luzerne County and that he is a fifty percent owner of David Arthur Dalessandro, Inc. However, the trial court did not indicate, and we are unable to ascertain from the record, what these assets are worth.

Accordingly, we will remand this case to the trial court for a hearing to determine what appellant receives from Gene Lispi Chevrolet as well as the value of the aforementioned assets.

Case is remanded for a hearing. Jurisdiction of the panel is relinquished. Jurisdiction of the Court is retained.

      . Because a support order is based in part on the earning, earning capacity and property of payor as well as the needs of the recipient, the earnings, earning capacity of the recipient, and the needs of the payor, we will not at this time reach the merits of appellant's first claim.


text:
    531 A.2d 520
    Peter J. SOBEL, Ph.D., Appellant v. Levi WINGARD.
    Superior Court of Pennsylvania.
    Submitted June 8, 1987.
    Filed Sept. 23, 1987.

      Peter J. Sobel, in propria persona.
    John D. Snyder, III, West Chester, for appellee.
    Before CIRILLO, President Judge, and TAMILIA and WATKINS, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Court of Common Pleas of Chester County wherein preliminary objections to plaintiffs civil complaint alleging a cause of action in libel and “harassment”, against defendant were sustained thereby terminating plaintiffs lawsuit.

On November 14, 1985, plaintiff was a substitute teacher for the Downington Area School District. The defendant was principal of the district’s high school. Defendant wrote to plaintiff informing plaintiff that his services as a teacher would no longer be required because of problems with “lesson plans”, the taking of attendance, and the preparation of the day’s activities reports. The letter was sent by defendant to plaintiff with copies going to the school’s personnel director and the secondary education director. Plaintiff claimed that the charges mentioned against him in the letter are false and on August 25, 1986, filed a civil action against defendant alleging libel, slander and “severe harassment”.

After defendant filed preliminary objections to the complaint including a demurrer to the Complaint the trial court entered an order on December 12, 1986 sustaining the demurrer. The court held that the Complainant failed to state a cause of action upon which relief could be granted. This appeal followed.

In deciding the issue as to whether a demurrer to a complaint was properly granted, we must accept all well-pleaded material facts alleged in the complaint as well as all inferences reasonably deduced therefrom as true and then decide whether the complaint alleges sufficient facts to permit recovery. Gordon v. Lancaster Osteopathic Hospital Association, Inc., 340 Pa.Superior Ct. 253, 489 A.2d 1364 (1985). Whether a publication is capable of a defamatory meaning is a question of law for the court. Doman v. Rosnen, 246 Pa.Superior Ct. 616, 371 A.2d 1002 (1977).

A publication is defamatory if it tends to harass the reputation of another so as to lower him or her in the estimation of the community or if it tends to deter third persons from associating or dealing with him or her. Corabi v. Curtis Publishing Co., 411 Pa. 432, 273 A.2d 899 (1971). There are two kinds of defamation. Slander occurs by words which are spoken that are defamatory. Solasko v. Paxton, 383 Pa. 419, 119 A.2d 230 (1956). Libel is maliciously written or printed material which tends to blacken a person’s reputation or to expose the person to public hatred, contempt, or ridicule or injure the person in his or her business or profession. Corabi, supra. In order for defamation to occur in either case the defamatory statement must be “published”, that is, communicated to a third person. In our case a letter written by defendant to plaintiff was copied to two other persons. The letter was critical of plaintiff’s performance as a substitute teacher. Because the source of the alleged defamation was the letter the type of defamation with which we are concerned in the instant case is libel and not slander. Thus the trial court was correct in dismissing the slander action.

In determining whether a communication is defamatory, we must be guided by consideration of the expertise and knowledge of those to whom the publication was circulated, and by consideration of the effect it is fairly calculated to produce. Corabi, supra.

In the instant case, defendant states in the letter in question that the Plaintiff left no report for the teacher, did not follow a lesson plan and left the classroom during a test. These statements do not criticize his talents, skills or abilities as a teacher. It comments upon his adherence to administrative policies. The letter does not, in light of its full context and its audience, attribute a lack of skill or ability which would tend to harm him in his profession as a teacher. Furthermore, it welcomes an opportunity for Plaintiff to speak with defendant about these allegations. Moreover, the only other persons who received this notice were the Directors of Personnel and Secondary Education. These persons, in light of their positions and expertise, are persons who can be expected to interpret properly defendant’s remarks. As such, it cannot be held that the remarks harm his reputation so as to lower him in the estimation of the community or deter third persons from associating or dealing with him.

In addition, liability for publication of a defamatory matter may be defeated by a privilege to publish it. Agriss v. Roadway Express, Inc., 334 Pa.Superior Ct. 295, 483 A.2d 456 (1984). An employer has an absolute privilege to publish defamatory matters in notices of employee terminations. DeLuca v. Reader, 227 Pa.Superior Ct. 392, 323 A.2d 309 (1974); Agriss, supra. This absolute privilege was extended in Agriss to include publications of defamatory material in warning letters. Moreover, evaluations of an employee by an employer are deemed to be consented to by the employee. Baker v. Lafayette College, 350 Pa.Superior Ct. 68, 504 A.2d 247 (1986). Consent is an absolute privilege. Baker, supra.

The instant publication is solely related to plaintiff’s employment and his work performance. It is addressed only to him and to limited supervisory personnel. As such it is not capable of defamatory meaning. See Wendler v. DePaul, 346 Pa.Superior Ct. 479, 499 A.2d 1101 (1985).

In Keddie v. Pennsylvania State University, 412 F.Supp. 1264 (M.D.Pa.1976). As in Wendler, supra and Baker, supra the court held that an employer’s evaluative statements of an employee which were critical of the employee’s job performance were not defamatory. Thus, we hold that such statement, read in the context of an employment-related report, are not capable of defamation. For these reasons, we hold that the trial court was also correct when it granted the demurrer to the libel action.

Finally, the trial court was also correct when it granted the demurrer to the “harassment” count alleged in plaintiff’s complaint. In DeAngelo v. Fortney, 357 Pa.Superior Ct. 127, 515 A.2d 594 (1986) we declined to create a new cause of action in tort for “harassment”. For the same reasons discussed at some length in that case we decline to do so in the instant case. Furthermore, plaintiff has not alleged any facts which would tend to show that defendant’s letter had “no legitimate purpose” or was written merely to “annoy” him which are elements of the offense of harassment as set forth in Pennsylvania Crimes Code at 18 Pa.C.S.A. 2709.

Order affirmed.

      . By order dated July 22, 1987, this Court granted appellant’s petition for consolidation joining 628 Phila., 1987 with 91 Phila., 1987. Briefs for the appeal at 628 Phila., 1987 were due thirty (30) days_ from the date of that order. However, no briefs were even filed. Consequently, by Order dated September 10, 1987, the appeal at 628 Phila.,1987 was dismissed.


author: TAMILIA, Judge:

text:
    531 A.2d 782
    Marie Theresa BURKE v. Mary Modesto POPE, Appellant.
    Superior Court of Pennsylvania.
    Argued June 23, 1987.
    Filed Sept. 21, 1987.

      Albert Monjian, Philadelphia, for appellant.
    Joyce A. Monaco, Media, for appellee.
    Before McEWEN, TAMILIA and HOFFMAN, JJ.
   TAMILIA, Judge:

This is an appeal by Mrs. Mary Modesto Pope of a February 10, 1987 Order of the Court of Common Pleas of Delaware County awarding sole custody of her three minor daughters to Dr. Marie Theresa Burke with certain visitation and partial custody rights remaining in Mrs. Pope. Mrs. Pope is the natural mother of the children and contends that the hearing court acted against the best interest and welfare of her daughters by removing them from her custody and placing them with Dr. Burke, an unrelated non-parent, leaving her only visitation and partial custody rights.

This case commenced on March 25, 1985 when Dr. Burke, a former obstetrician-gynecologist, filed a petition seeking custody of Mrs. Pope’s three children, Amanda Marie, Rebecca Ann and Abigail Leigh Pope. On April 23, 1985, Mrs. Pope filed a petition for visitation and partial custody and on April 29, 1985, a response to Dr. Burke’s original petition and a cross-petition for custody. The parties entered into stipulations, eventually adopted as Orders of court, on May 10, 1985 and July 2, 1985, which temporarily placed physical custody of the children with Dr. Burke and allowed Mrs. Pope visitation four hours a weekend on alternate Saturdays and Sundays. On December 12, 1985, Mrs. Pope filed a petition for special relief, pursuant to Pa.R.C.P. 1915.13, requesting modification of the temporary custody Order and requesting an emergency Order for Christmas visitation. On December 18, 1985, the Honorable Howard F. Reed, Jr., ordered that Mrs. Pope have special visitation time with her children on Christmas day, 1985. On January 15, 1986, Dr. Burke filed a response to the December 12, 1985 petition and a cross-petition for special relief pursuant to Pa.R.C.P. 1915.13. On January 27, 1986, Mrs. Pope filed an answer.

In all, five hearings were held before the Honorable John V. Diggins, on January 28, February 27, April 21, June 5 and October 1, 1986. On June 12, 1986, Mrs. Pope filed a motion, pursuant to Pa.R.C.P. 1915.13, requesting entry of a partial custody Order. On June 18, 1986, Judge Diggins entered a temporary Order for partial custody, decreeing that Mrs. Pope have partial custody of her children each weekend from 12:00 noon on Saturday until 5:00 p.m. on Sunday. On August 27, 1986, Mrs. Pope filed a petition for contempt of the partial custody Order. Following the October 1, 1986 hearing, Judge Diggins directed Dr. Burke to comply with the previous temporary Order for partial custody. Finally, after the submission of post-trial briefs, on February 10, 1987, Judge Diggins filed an Opinion and Order awarding sole physical custody to Dr. Burke with visitation and partial custody rights to Mrs. Pope. It is this final Order from which Mrs. Pope timely appeals.

The relationship of the parties began in 1967 when Dr. Burke, then forty-nine years old and a friend of Mrs. Pope’s uncle, met appellant who was only an eleven year old girl. In 1974, at age seventeen, appellant married and subsequently had three children. During the marriage, the Pope family frequently visited at the home of Dr. Burke, who was the mother’s obstetrician-gynecologist. In 1978, after having physically and mentally abused the mother for sometime, the father abandoned his family while Mrs. Pope was pregnant with her third child, leaving her in a serious financial and emotional crises. Dr. Burke responded to this situation by inviting Mrs. Pope and her children to live with her until they could make suitable living arrangements for themselves. The family moved in with Dr. Burke in September, 1978 and she provided financial support for them for the next two years, including approximately two years of college tuition for Mrs. Pope.

The hearing court found that at the end of the first two years, Dr. Burke began to object to Mrs. Pope’s social behavior involving her staying out late at night and occasionally overnight without notice with the result that the family moved to Mrs. Pope’s parents’ home. After approximately five weeks, Dr. Burke invited them back to her home so that the oldest daughter could finish the school year without interruption. Mrs. Pope accepted this offer and the family returned to the Burke home. However, a continuing deterioration of the relationship between Mrs. Pope and Dr. Burke occurred. This involved Dr. Burke’s increasing her influence in the maintenance and care of the children and increasing her objections to alleged improprieties and moral failings of the mother, which eventually culminated in physical altercations between the women and the eventual expulsion by Dr. Burke of the mother from the Burke residence for one night. A few months after this incident, in April, 1982, Mrs. Pope left the Burke residence for the last time and went to New York, for one week, leaving no address or phone number where she could be reached. Just prior to her leaving and upon her return from New York, Mrs. Pope allegedly stated she would not return to the children nor did she want any part of them. The only access Dr. Burke had to the mother was by way of her therapist who arranged a meeting. From that time on the children have resided at the Burke residence away from the mother.

In the fall of 1982, Mrs. Pope was hospitalized for surgery but maintained frequent telephone contact with the children; however, the children were never brought to the hospital to see the mother. During 1983 and 1984, Mrs. Pope, while living with her parents, contends she was trying to raise sufficient funds for the family to get an apartment. During this period, the mother maintained weekly visits with the children as Dr. Burke would permit. In the summer of 1984, Mrs. Pope was hospitalized and returned to her parent’s home. Near the end of 1984, following her recovery from another illness, Mrs. Pope contacted Dr. Burke and told her it was her intention to bring the children to her parents’ home and an agreement resulted between the women that the children would be returned to Mrs. Pope at the end of the current school year in May, 1985. However, before this could take place, Dr. Burke commenced this action by filing a petition for custody on March 25, 1985. Dr. Burke did not deny Mrs. Pope visitation privileges until the spring of 1985 when Mrs. Pope tried to “forcibly” remove the children from Dr. Burke’s babysitter’s home. Subsequently, the lower court modified the existing stipulated visitation Order by entering a temporary partial custody Order, dated June 12, 1986, in favor of Mrs. Pope, which was in effect until the final custody Order, entered on February 10, 1987, from which this appeal arises.

Mrs. Pope argues on appeal that the hearing court abused its discretion and acted against the best interests of the children by concluding that Dr. Burke, a non-parent, met the heavy burden of persuasion that the parents’ prima facie right to custody was forfeited and in determining that sole custody should reside in the non-parent. Further, the mother contends that the court misapplied the law and erred in its determination of material facts.

Our paramount concern in all custody cases is the best interests and permanent welfare of the child or children. Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980); Commonwealth ex rel. Miller v. Miller, 329 Pa.Super. 248, 478 A.2d 451 (1984). Other concerns such as the parent-child relationship should also be considered of importance in determining which custody arrangement is in the child’s best interest. Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980). Traditionally, in reviewing custody cases, appellate courts apply a very broad scope of review, but such review does not allow us to nullify the factfinding functions of the hearing court. Albright, supra; Commonwealth ex rel. Bendrick v. White, 403 Pa. 55, 169 A.2d 69 (1961). Although we are not bound by deductions or inferences made by a trial court from the facts it found existed, when reviewing custody cases, our Supreme Court has held:

[A]n appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support the trial court’s factual conclusions, but may not interfere with those conclusions unless they are unreasonable in light of the trial court’s factual findings [,] ... and, thus, represent a gross abuse of discretion____ (Citations and footnote omitted; emphasis in original.)

Lombardo/Grisor v. Lombardo, 515 Pa. 139, 527 A.2d 525 (1987); Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 237, 478 A.2d 800, 806 (1984); Jones v. Stone, 343 Pa.Super. 416, 495 A.2d 205 (1985); see also Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977).

Upon review of the entire record, we are not satisfied the hearing court’s resolution of the matter is adequate. Here, we have a child custody case involving a dispute between a parent and a non-parent. The proper standard of proof in resolving custody disputes between a parent and a third party was set forth by this Court in In re Custody of Hernandez, 249 Pa.Super. 274, 286, 376 A.2d 648, 654 (1977), and adopted by the Supreme Court in Ellerbe, supra, 490 Pa. at 367-68, 416 A.2d at 513-14, when we stated:

When the judge is hearing a dispute between the parents, or a parent, and a third party, ... [t]he question still is, what is in the child’s best interest? However, the parties do not start out even; the parents have a ‘prima facie right to custody,’ which will be forfeited only if ‘convincing reasons’ appear that the child’s best interest will be served by an award to the third party. Thus, even before proceedings start, the evidentiary scale is tipped, and tipped hard, to the parents’ side. What the judge must do, therefore, is first, hear all evidence relevant to the child’s best interest, and then, decide whether the evidence on behalf of the third party is weighty enough to bring the scale up to even, and down on the third party’s side.

See In re James John M., 333 Pa.Super. 417, 482 A.2d 637 (1984), and Jones, supra (both citing Ellerbe and Hernandez).

In implementing the broad scope of review possessed by an appellate court in a custody case, an en banc panel of our Court in In re Donna W., 325 Pa.Super. 39, 472 A.2d 635 (1984) suggested four stages for examining custody matters: 1) the procedural stage, where the appellate court examines the record to determine whether the trial court has satisfied the procedural requirements necessary to the entry of a custody award; 2) the fact-finding stage, where the appellate court examines the trial court’s findings of fact to determine if they are supported by the record; 3) the conclusion of law stage, where the appellate court determines whether the trial court has committed an error of law; and 4) the inferences and deductions stage, where the appellate court must consider what inferences and deductions to draw from the facts as drawn by the trial court, keeping in mind that the appellate court is not bound by the trial court’s inferences and deductions, only its findings of fact. In re James John M., supra.

After engaging a broad scope of review, and after considering this case with these four stages in mind, we find Dr. Burke has not produced convincing reasons to support the heavy burden placed upon her to overcome the prima facie right to custody in the natural mother, Mrs. Pope. The hearing court based its decision on erroneous legal considerations as well as some findings of fact that are unsupported by the evidence presented below. It is these fallacies in its reasoning that renders the trial court’s final determination at odds with the best interest of the children in this matter. Although we fully acknowledge the time and effort spent by the trial court in rendering its decision, we feel that due to the nature of the third party’s relationship with the children and the circumstances upon which this case arises, our broad scope of review in custody cases must be exercised in this matter.

In its Order and Opinion dated February 10, 1987, the trial court ruled that even though Mrs. Pope is not an unfit mother, the best interests of Amanda, Rebecca, and Abigail would be best served by their being placed in the custody of Dr. Burke, with whom the trial court found they had a strong “psychological bonding.” As Dr. Burke admits (Appellee’s brief, at 16), in rendering this decision the trial court incorrectly found that Mrs. Pope had an inadequate residence, a long distance from the Burke residence, at her parents’ home (Slip Op., Diggins, J., 2/10/87, p. 23); when in fact the record shows that Mrs. Pope has lived by herself in a four-level townhouse, with three bedrooms, two and one-half baths, and playground facilities nearby, since August, 1985 (N.T. 1/28/86, p. 18). Additionally, the trial court found that in the summer of 1982, Mrs. Pope “signed a document granting legal custody of the children to Dr. Burke” (Slip Op. at 11, 8); however, no such agreement was ever submitted in the pleadings or entered during the hearings. The only reference to the alleged document is Dr. Burke’s testimony that she asked Mrs. Pope to give her a “paper” that said Dr. Burke had “responsibility” for the children, with the idea in mind that she could authorize medical assistance for the children when she took them on a trip to Florida (N.T. 4/21/86, pp. 39-40). Without more, the record clearly cannot support a finding that “legal custody” of the children was given to Dr. Burke by the mother at anytime.

In addition to these erroneous findings of fact, we find the trial court committed an error of law in determining the best interest and welfare of the children by weighing too heavily the “psychological bonding” it found existed between the children and Dr. Burke. Our Court has rejected the argument that bonding can be determinative of a child’s best interest. In re Donna W, supra. “While psychiatric considerations may very well be important, they must not be made determinative, for in deciding upon a child’s best interests the court must take many factors into account____,” such as parents’ rights. Id. 325 Pa.Super. at 58, 472 A.2d at 644. As we stated in In re Desiree B., 304 Pa.Super. 461, 468-469, 450 A.2d 1003, 1007 (1982), “The question of bonding should not be the only one or the deciding factor.” (Emphasis in original.)

From a thorough review of the hearing court’s Opinion it is evident that although the court refers to the “best interest” of the child standard we applied in Hernandez, supra, we find it placed undue weight on “psychological bonding,” terming it “the new theory regarding the rights of foster parents versus the biological parents” that Hernandez “pre-dates”. (Slip Op. at 21.) After quoting and referring to an article on the psychological parent doctrine in custody disputes between biological parents and foster parents, the trial court concluded:

The bottom line is that the psychological parent child relationship rather than the biological tie is the crucial factor for the child’s bond to the adult.
The psychological parent doctrine recognizes an exceptional circumstance in which a biological parent’s custody of the child, may be detrimental because the child views another adult as his parent figure. Thus it forms an exception along with unfitness and abandonment to a parent’s right to custody. The crucial question is whether the child has such a firm attachment to the foster parent as a parent figure that removal would be difficult and likely to cause substantial emotional harm and if such philosophers as Goldstein, Freud and Solnit suggest that child custody disputes be governed by the least detrimental available alternative which in this case we find to be sole custody [in the non-parent, Dr. Burke] with visitation rights in the biological Mother.

(Slip Op. at 17-18.) The trial court’s equating the “psychological parent doctrine” with unfitness and abandonment as exceptional factors that can override the parents’ prima facie right to custody derived from Curtis, supra, is contrary to our holdings in In re Donna W., supra, and In re Desiree B., supra.

This undue weight on psychological considerations coupled with erroneous findings of material facts warrant our reversing the hearing court’s award of sole custody in Dr. Burke. It is unnecessary to remand this case to gather further evidence in light of the extensive record compiled from the five hearings held below. Ample opportunity to present testimony has been given both sides and we see no need to supplement the record.

The error which is easily fallen into by an uncritical adoption of the concept of psychological parenting when it rejects the legal concept of “best interest” is that a child out of parental custody may be doomed to placement outside the home without reasonable efforts being made to rekindle the parental bond and to reestablish the psychological parenting in the parents. Time with children is an essential element and the child’s concept of time may not be ignored. A six-month old child placed outside its home, within a period of three to six months, may attach psychologically to the foster parents, which would then, under the doctrine of psychological parenting, mitigate against its return. A two-year old might be snatched by one parent or kidnapped by a stranger and not be located for several years, having established deep psychological attachment to the parenting person. Would we wish to deny return to the rightful parent for that reason? Children who had primary attachment with the parent during the formative years retain those residual attachments despite long separation, especially, as here, when they have been maintained and reinforced by contacts and visits of various duration over the years, despite periodic disruptions. Regardless of what the children might say, they may not feel an attachment to Dr. Burke that is so overwhelming as to preclude resettlement with the mother if properly implemented with guidance and social service support. Child development and interpersonal relationships are too complex and inadequately understood to create an inflexible rule that considers only the child’s immediate condition and avoidance of present trauma to the child as a counterbalance to the parents’ rights. The “least detrimental alternative” relied upon by the trial court, based on the philosophy of Goldstein, Freud and Solnit, controls the determination solely from the child’s point of view. This fault is fatal, for the court cannot ignore the parents’ rights without offending constitutional principles. In fact, the authors, recognizing the legal, constitutional and social deficiencies inherent in the philosophy expounded in Beyond the Best Interest of the Child, followed it by Before the Best Interest of the Child, J. Goldstein, A. Freud and A. Solnit (1979). There, the authors proposed that before a child was removed every reasonable effort be made to retain the child in the parental home by utilization of court and social services to improve parenting and ameliorate deficiencies that might ultimately lead to separation. Thereafter, failing in this effort over a reasonable period of time, separation would be permitted and ultimately, in a carefully structured time sequence, termination of parental rights and adoption by adequate caretakers would be undertaken. The latter proposal has received far more acceptance than the earlier and was timely in that there was a strong national movement toward early intervention and prevention to avoid foster placement and to bring about permanent placement in a relatively short period rather than to have interminable periods of foster placement with the child living his life in the limbo of foster care. This doctrine is endorsed by federal legislation and policy, Adoption Assistance and Child Welfare Act of 1980 (Public Law 96-272, June 17, 1980) and by follow-up state legislation and policy, Involuntary Termination of Parental Rights, 23 Pa.C.S. 2511; 55 Pa.Code § 3130.61 et seq. and § 3140 et seq.

This leads us to conclude a remand is required in this case. As we said in Hernandez, supra, in a dispute between a parent and a third party,

The question still is, ‘What is in the child’s best interest?’ However, the parties do not start out even; the parents have a prima facie right to custody, which will be forfeited only if convincing reasons appear that the child’s best interest will be served by an award to the third party. Thus even before the proceedings start, the evidentiary scale is tipped hard to the parents’ side.

Hernandez, 249 Pa.Super. at 286, 376 A.2d at 654. By adopting the principle of the “psychological parent” and the “least detrimental alternative” and concluding that these doctrines have abrogated the fitness doctrine, and by inference that of the best interest of the child, by implication, if not in fact, the court presumed the children would be best served by remaining with Dr. Burke; the mother was thereby deprived of the heavy weight of the scales in favor of her prima facie right to custody. Had the trial court not viewed the case in this fashion, it is likely it would have given greater weight to testimony in favor of the mother’s improved social and housing status; to the testimony of the neutral psychologist who favored an effort at reconciliation and partial custody to gradually reinvolve the children and mother with each other and to attempt to bring Dr. Burke and the mother together. Instead, the court accepted uncritically the- testimony of the psychiatrist procured by Dr. Burke while rejecting that of the neutral psychologist. In a reversal of what would be expected, the neutral psychologist is considered biased despite interviews and counselling of the children and both adults, whereas the privately procured psychiatrist and psychologist, who never talked to the mother, were afforded credibility.

Had this case been a foster care case dealt with through the juvenile court and an agency, the law and the court would have required and demanded that substantial efforts be made to improve parenting and reunite the children with their mother. See Juvenile Act, 42 Pa.C.S. §§ 6331 et seq.; Child Protective Services Law, 11 P.S. §§ 2201-2224. As a free floating non-directed, non-judicial arrangement, this case provided no such effort. Unless such efforts are undertaken, we will never know if the family can be reunited. Failing to heed the suggestions of the neutral psychologist, the court did not consider a creative plan that could lead to reunification. The trial court treated the mother’s attempt at enforcing a court Order for visitation as harrassing behavior toward Dr. Burke who called the police. The mother received admonishment not to do this again. The trial court ignored the mandate of the Shared Custody Act, 23 Pa.C.S. 5301 et seq., which requires a consideration of which of the parties is most likely to encourage the parental relationship, and while shared custody is not presumed, it must be carefully considered as it applies to the facts of each case and it may not be ignored. We agree with the trial judge that it is not appropriate in this case, but it is not merely a theory which may be ignored.

One other consideration which makes imperative the need to move toward reconciliation of the children and their mother is the relative age of the mother (30) and Dr. Burke (61). The court makes no mention of this fact-and the possible implications to the permanent welfare of the children. Obviously time is on the mother's side and the continuing need for the children and their mother to be together and to sustain each other long after Dr. Burke is gone is a reality. Dr. Burke’s relationship is more akin to that of a grandmother rather than a mother figure. The relationship between her and Mrs. Pope is analogous to that between a mother and wayward daughter which carries over into a struggle for control of grandchildren. Granted, age is irrelevant if adequate care is not present, yet consideration and exploration of this factor is necessary.

The visitation and partial custody ordered in this case was minimal and not conducive to an improvement in the relationship between mother and children. Visitation was limited and placed environmental and emotional restrictions on the children and the mother toward improving their relationship. Formulation of a plan, leading to custody in the mother and minimizing harm to the children with partial custody of increasing duration, accompanied by counselling over a stated period of time, would be desirable and effective. The trial court acknowledges the children profess love for their mother and that the mother is fit. He even hints at an eventual change of custody if conditions warrant.

Dr. Burke has generated strong emotional bonds between the children and herself. A serious and reasonable attempt should be made to lessen these bonds and to increase those with the mother. The mother will never have the opportunity to strengthen her bonds to the children and her capacity to parent if Dr. Burke has total control of all meaningful aspects of the children’s lives and the mother is precluded from involving herself in the process. The obstructionist tendencies of Dr. Burke were pointed out by the jointly-chosen neutral psychological expert Andrew R. Vogel (R. 1140a-41a).

We view this case as similar to that in which an agency is involved in respect to the standards to be employed for consideration of return of the children to a parent who has been found to be fit, when the child has been in foster placement. Under such conditions, a definitive plan would be established to 1) affirmatively move toward reunification as a goal, 2) provide psychological counselling to facilitate this progress, 3) gradually increase partial custody and 4) establish a time frame within which this process will be completed and full custody in the mother established. Six months to one year should be sufficient time to work through this process.

Such a program is difficult and requires effort and cooperation by all parties and monitoring by the court, but it is routinely employed in child welfare cases with substantial success. It is workable here and is directed toward the permanent welfare and best interests of the children, while it does not ignore the present realities and emotional ties between the children and Dr. Burke. The mother will not be permitted an automatic return without establishing her commitment and capacity to perform adequately as a parent. This will become evident from monitoring by treatment personnel. Hopefully the result will include a continuing relationship with Dr. Burke which will not interfere with the relationship between the mother and her children.

The custody and visitation Order is, therefore, vacated and the case remanded for imposition of an Order consistent with this Opinion.

Jurisdiction relinquished.

      . Amanda Marie was born June 8, 1974, Rebecca Ann was born September 25, 1976 and Abigail Leigh was born April 1, 1979, making their respective ages approximately 11, 9 and 6 at the time of the petition for custody and 13, 11 and 8 at the time of this appeal.

        . Under the February 10, 1987 Order, Mrs. Pope has the right to the children every other weekend from 12:00 noon on Saturday until 5:00 p.m. on Sunday, as well as for two weeks, in the summer. During 1987, Mrs. Pope will have the right to the children on Easter, Memorial Day, Fourth of July, Labor Day and Thanksgiving from 9:30 a.m. to 9:00 p.m. and from 12:00 noon on Christmas day until 9:00 p.m. This holiday schedule shall alternate yearly, giving Dr. Burke the children thereafter, except as to Christmas, when Mrs. Pope, on the alternate year, shall have the children from noon on December 24th until noon on December 25th.

      . The importance the trial court placed on this finding is evident from its Opinion:
      This record indicates that the Mother has no separate abode to which the children might be taken but must rely on the fact that, they can be accommodated at her parents’ home while Dr. Burke provides an adequate physical environment. These comparisons must be considered in determining the best interest of the children.
      (Slip Op. at 23.)

      . Incident to this is the hearing court’s insistance that both in a dc facto and a de jure sense Dr. Burke is the equivalent of a “foster parent” and a "surrogate mother" and its determination that to argue differently is meritless (Slip Op. at 23-24). While Dr. Burke may be considered a second or "foster" mother — using the term loosely — in a de facto manner, it is wholly inaccurate to describe her as a "foster mother” in a de jure sense, due to there being no application or compliance with the legal requirements necessary for such a title. At best, Dr. Burke can be thought of as operating in loco parentis during certain periods of the parties relationship.

      . Curtis, The Psychological Parent Doctrine in Custody Disputes Between Foster Parents and Biological Parents, 16 Colum. J.L. & Soc. Probs., 149-192 (1980). See also Beyond the Best Interest of the Child, J. Goldstein, A. Freud and A. Solnit (1973).


author: CIRILLO, President Judge:

text:
    531 A.2d 789
    Arthur J. MATTIA and Sandra Mattia, h/w v. SEARS, ROEBUCK & CO. and Shimano American Corporation. Appeal of SEARS, ROEBUCK & CO.
    Superior Court of Pennsylvania.
    Submitted June 24, 1985.
    Filed Sept. 25, 1987.

      Joseph T. Bodell, Jr., Philadelphia, for appellant.
    Cheryl A. Furey, Philadelphia, for Mattia, appellees.
    Frank A. Luchak, Philadelphia, for Shimano, appellee.
    Before CIRILLO, President Judge, and McEWEN and TAMILIA, JJ.
   CIRILLO, President Judge:

This case concerns a claim for contribution and indemnity by a retailer against a manufacturer for an allegedly defective bicycle which caused injury to the consumer-purchaser. In response to special interrogatories, the jury found that the retailer was negligent but that the product was not defective at the time it left the manufacturer’s control. The trial court instructed the jury that it should consider whether the retailer was entitled to indemnity and contribution based on the law of strict liability. The retailer appealed the court’s refusal to charge that similar relief should also be considered based upon a negligence theory.

The trial court stated that its decision had two basis: (1) the retailer’s complaint failed to set forth sufficient facts to make out a claim for negligence; (2) the retailer failed to introduce evidence at trial to support such a claim.

At common law, there was no right of contribution between joint tortfeasors. See Leflar, Contribution and Indemnity Between Tortfeasors, 81 U.Pa.L.Rev. 130 (1932). Even if two parties were equally responsible for the plaintiff’s injury, one could be held liable for the entire loss while the other went scot free. Id. This inequitable result was universally criticized and eventually was changed via statute. See Prosser, Law of Torts 306-07 (4th ed. 1971); Uniform Contribution Among Tortfeasors Act, 42 Pa.C.S.A. §§ 8321-27.

In Pennsylvania, the statute provides for a right of contribution among joint tortfeasors. 42 PaiC.S.A. § 8324(a). Joint tortfeasors are defined as “two or more persons jointly or severally liable in tort for the same injury to persons or property____” Id. at 8322. Two actors are jointly liable for an injury if their conduct “causes a single harm which cannot be apportioned ... even though' [the actors] may have acted independently.” Capone v. Donovan, 332 Pa.Super. 185, 189, 480 A.2d 1249, 1251 (1984).

Under the Act, joint tortfeasors are entitled to contribution if they have paid more than their pro rata share of this common liability. 42 Pa.C.S.A. § 8324(b). Contribution is' obtainable even if the two defendants are held liable based upon different theories of recovery. Svetz For Svetz v. Land Tool Co., 355 Pa.Super. 230, 238, 513 A.2d 403, 407 (1986); Rabatin v. Columbus Lines, Inc., 790 F.2d 22, 25 (3d Cir.1986).

In Svetz, a trustee ad litem sued in strict liability for damages arising from a fatal motorcycle accident on behalf of a decedent, alleging that a defective helmet had caused the death. The defendant-manufacturer joined as an additional defendant, the tavernkeeper who. had allegedly served alcohol to the decedent prior to the accident, seeking contribution based upon negligence. The trial court dismissed the complaint for contribution, ruling that such a claim does not lie if the theory of recovery differs from the underlying theory of the case. The Superior Court reversed, holding that a defendant held liable based upon strict liability may be entitled to contribution from a negligent third party. The court stated that “the doctrine of contribution is based on equity. Therefore, the Act must be examined with equity in mind.” Svetz, 355 Pa.Super. at 237, 513 A.2d at 407. The court then stated: “It matters not on which theory a tortfeasor has been held responsible for the tort committed against the plaintiff. So long as the party seeking contribution has paid in excess of his or her share of liability, it would be inequitable under the Act to deny that party’s right to contribution from a second tortfeasor who also contributed to the plaintiffs injury.” Id., 355 Pa.Superior Ct. at 238, 513 A.2d at 407.

Thus, the equitable obligation of contribution may be asserted where: (1) the parties combined to produce the plaintiffs injury; (2) the parties are each liable in tort to the plaintiff; and (3) a tortfeasor has discharged the common liability by paying more than his pro rata share.

The right of contribution may be asserted during the original proceeding via joinder of a third-party defendant. See Pa.R.Civ.P. 2252. Or it may be pursued in a separate action brought by a tortfeasor who has previously been held liable to the original plaintiff. National Liberty Life Ins. Co. v. Kling Partnership, 350 Pa.Super. 524, 535, 504 A.2d 1273, 1279 (1986). In the latter instance, the party seeking contribution must stand in the shoes of that original plaintiff and prove that the new defendant was a joint tortfeasor in that his tortious conduct also caused the harm at issue.

Nor does it matter if the statute of limitations on the underlying claim has run so that the plaintiff would be unable to sue the third-party defendant. In a claim for contribution, the statute does not begin to run until the time judgment is entered in favor of the original plaintiff. Hughes v. Pron, 286 Pa.Super. 419, 426, 429 A.2d 9, 12 (1981).

Whether the third-party defendant is brought into the original action or later sued in a separate proceeding, a complaint based upon contribution must conform to the applicable Rules of Civil Procedure. In the complaint, the original defendant must plead sufficient facts to sustain a cause of action against the new defendant. General State Auth. v. Sutter Co., 44 Pa.Commw. 156, 161, 403 A.2d 1022, 1025 (1979). See Pa.R.Civ.P. 1019(a). They may not rely on bald assertions but must plead the material facts necessary to establish their claim. Id. at 160, 403 A.2d at 1024.

At trial, the plaintiff is not entitled to insist on a jury instruction on any claim which has not been properly pleaded. Heymann v. Electric Service Manufacturing Co., 412 Pa. 338, 345, 194 A.2d 429, 432 (1963); Srednich v. Sylak, 343 Pa,. 486, 490, 23 A.2d 333, 335 (1942); Berry v. Friday, 324 Pa.Super. 499, 504, 472 A.2d 191, 193 (1984); Hrivnak v. Perrone, 231 Pa.Super. 151, 154, 331 A.2d 507, 508 (1974); Perigo v. Deegan, 288 Pa.Super. 93, 98, 431 A.2d 303, 305 (1981); Bucchianeri v. Equitable Gas Co., 341 Pa.Super. 319, 327, 491 A.2d 835, 839 (1985).

In this case, appellant’s third party complaint contains insufficient facts to hold appellee liable in negligence. The complaint is dotted with labels such as “negligent” and “defective” but nowhere are the requisite facts pled. Appellant does not even allude to the factual basis for its claim that the product was negligently manufactured. Due to this inadequacy, appellant’s third party complaint did not set forth a claim for negligence and thus, it was not entitled to a jury instruction on that cause of action.

Appellants also claim that the appellees were liable over to them based upon indemnification. Indemnity shifts the entire loss from one defendant to another. Burch v. Sears Roebuck and Co., 320 Pa.Super. 444, 456, 467 A.2d 615, 622 (1983). It is “recognized in cases where community opinion would consider that in justice the responsibility should rest upon one (defendant) rather than the other.” Id., 320 Pa.Superior Ct. at 457, 467 A.2d at 622. In the usual case, “indemnity is available to those who are secondarily or vicariously liable from those who are primarily liable.” Svetz, 355 Pa.Super. at 242, 513 A.2d at 410.

In this case, the jury made a specific determination that the product was not defective when it left the manufacturer’s control. Thus, the manufacturer could not possibly be considered primarily liable.

Based on the foregoing, the Order of the Court of Common Pleas of Philadelphia is affirmed.

      . Based on the discussion below, we need not address this second basis for the trial judge's decision. But we note that our independent review of the record demonstrates that the trial court was correct in its conclusion that appellant did not attempt to prove negligence at trial.


author: MONTEMURO, Judge:

text:
    531 A.2d 792
    Joan ALFORD, Appellant, v. The PHILADELPHIA COCA-COLA BOTTLING CO., INC.
    Superior Court of Pennsylvania.
    Argued June 15, 1987.
    Filed Sept. 29, 1987.

      Alan Starker, Philadelphia, for appellant.
    James P. Bradley, Philadelphia, for appellee.
    Before MONTEMURO, KELLY and CERCONE, JJ.
   MONTEMURO, Judge:

Appellant Joan Alford challenges the dismissal of her action against appellee Philadelphia Coca-Cola Bottling Company, Inc. The sole issue before us is whether the Philadelphia County Court of Common Pleas abused its discretion when it dismissed the action on the ground, of forum non conveniens. Because the court acted prematurely, we reverse and remand for further proceedings.

This dispute arose out of an automobile accident that occurred on December 20, 1985, in Cape May County, New Jersey. An automobile driven by Ms. Alford, a resident of Cape May County, collided with an automobile owned by the Philadelphia Coca-Cola Bottling Company. Greg Baker, an employee of the Bottling Company and also a resident of Cape May County, was driving the Bottling Company automobile at the time. As a result of this mishap, Ms. Alford filed an action in Philadelphia County against the Bottling Company. In response, the Company filed a petition to dismiss the complaint pursuant to 42 Pa.C.S. § 5322(e). Ms. Alford answered the petition, and the trial court decided the issue on petition and answer alone. By order of November 18, 1986, the court granted the petition to dismiss “without prejudice to plaintiffs right to refile in New Jersey and on the condition that defendant corporation shall accept service of plaintiff’s complaint in New Jersey.” This appeal followed.

The parties agree that the courts of Philadelphia County can exercise jurisdiction over Ms. Alford’s action. They also appear to recognize that venue is proper in Philadelphia. Their disagreement focuses upon the doctrine of forum non conveniens, as embodied by section 5322(e) of the Uniform Interstate and International Procedure Act, 42 Pa.C.S. § 5322(e). Section 5322(e) enables a court to dismiss an action, even though jurisdiction and venue are proper, if the court finds that “in the interest of substantial justice the matter should be heard in another forum.” Dismissal under section 5322(e) differs substantially from transfer under Pa.R.C.P. 1006(d). Rule 1006(d)(1) enables the court to transfer an action to another county within the Commonwealth “for the convenience of parties and witnesses.” A Rule 1006(d) transfer does not extinguish the litigation. The plaintiff need not refile his or her action in the transferee county. Instead, the Prothonotary of the transferor county simply forwards to the Prothonotary of the transferee county “copies of the docket entries, process, pleadings, depositions and other papers filed in the action.” Pa.R.C.P. 1006(d)(3). The action thus continues as if the plaintiff had filed it initially in the transferee county. A section 5322(e) dismissal, on the other hand, terminates the litigation in the courts of this Commonwealth. Unlike the intra-jurisdiction transfer of Rule 1006(d), section 5322(e) applies when a tribunal of this jurisdiction determines that a tribunal in another jurisdiction would offer a more convenient and appropriate situs for the action. Because our courts lack authority to transfer cases to the courts of our sister states, dismissal of the action is the only permissible result. See Schachtel v. Bloche, 272 Pa.Super. 32, 414 A.2d 654 (1979); Norman v. Norfolk and Western Railway Co., 228 Pa.Super. 319, 323 A.2d 850 (1974).

Despite the drastic difference in effect between transfer under rule 1006(d) and dismissal under section 5322(e), both remedies derive from the common law doctrine of forum non conveniens. See Petty v. Suburban General Hospital, 363 Pa.Super. 277, 525 A.2d 1230 (1987) (discussing Rule 1006(d) transfer in terms of forum non conveniens); Beatrice Foods Co. v. Proctor & Schwartz, Inc., 309 Pa.Super. 351, 455 A.2d 646 (1982) (discussing section 5322(e) dismissal in terms of forum non conveniens). This court has therefore applied to both interstate and intrastate cases the principles long ago recognized by our supreme court in Plum v. Tampax, Inc., 399 Pa. 553, 160 A.2d 549 (1960). See, e.g., Petty v. Suburban General Hospital, supra (intrastate); Korn v. Marvin Fives Food Equip. Corp., 362 Pa.Super. 559, 524 A.2d 1380 (1987) (intrastate); Beatrice Foods Co. v. Proctor & Schwartz, Inc., supra (interstate); Norman v. Norfolk and Western Railway Co., supra (interstate). In both the interstate context under section 5322(e) and the intrastate context under Rule 1006(d), the doctrine of forum non conveniens serves the same essential purpose. It provides the court with a means of looking beyond technical considerations such as jurisdiction and venue to determine whether litigation in the plaintiffs chosen forum would serve the interests of justice under the particular circumstances. See generally Westerby v. Johns-Manville Corp., 32 D & C 3d 163 (Phila.1982) (excellent and scholarly discussion by Takiff, J.). Thus, our recent discussions of the doctrine under Rule 1006(d) apply with equal force to the present case.

In Petty v. Suburban General Hospital, supra 363 Pa. Super, at 281, 525 A.2d at 1232 (quoting Reyno v. Piper Aircraft Co., 630 F.2d 149, 158 (3d Cir.1980)), we observed that a court should not deprive a plaintiff of his or her chosen forum “unless the defendant clearly adduces facts that ‘either (1) establish such oppressiveness and vexation to a defendant so as to be out of all proportion to plaintiffs convenience ... or (2) make trial in the chosen forum inappropriate because of considerations affecting the court’s own administrative- and legal problems.’ ” These “private and public interest factors” must weigh strongly in favor of the defendant before the court can disturb the plaintiff’s choice of forum. Id. See also Korn v. Marvin Fives Food Equip. Corp., supra. Among the private interests that the court must consider, we included the following:

the relative ease of access to sources of proof, availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if a view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.

Petty, supra, 363 Pa.Super. at 281-282, 525 A.2d at 1232. To this list, we added some of the public interests that also must weigh into the court’s analysis:

problems of creating court congestion and imposing jury duty upon people of a community which has no relation to the litigation; the appropriateness of having the action tried in a forum where the court is familiar with the law that must govern the case, rather than having a court in some other forum step into a quick-sand of conflict of laws problems and foreign law.

Id. See also Plum v. Tampax, Inc., supra. We have viewed the failure to weigh these interests as a reversible abuse of discretion. See Petty, supra; Korn, supra.

The trial court, of course, can determine without supporting evidence such matters of public interest as the possibility of court congestion, the extent of community involvement in the outcome of the litigation and the difficulties of applying foreign law. An informed assessment of the private interests at stake and of the particular circumstances that affect the public interest, however, often requires the court to resolve disputed issues of fact. For example, parties usually disagree about the availability of witnesses and the accessibility of physical evidence. On petitions to transfer pursuant to Rule 1006(d), the parties and the court must resolve all “material issues of disputed fact” through the procedures established by Pa.R.C.P. 209. See Petty, supra; Hosiery Corporation of America v. Rich, 327 Pa.Super. 472, 476 A.2d 50 (1984). Rule 209 provides an efficient means of addressing disputed factual issues that often arise from the exchange of petition and answer. Because a petition to dismiss pursuant to section 5322(e) raises the same kind of fact issues that a petition to transfer raises, the Rule 209 procedures apply equally to both. A section 5322(e) petitioner therefore must either “take depositions on disputed issues of fact” or “order the cause for argument on petition and answer.” Pa.R.C.P. 209(a) and (b). If the petitioner chooses to “order the cause for argument” rather than take depositions, the court will consider as true all responsive allegations of fact in the answer to the petition. If the petitioner fails to pursue either course, his or her opponent may praecipe for a rule requiring the petitioner to show cause why he or she should not comply with the prescribed procedure. Nevertheless, until one of the parties acts pursuant to Rule 209, or until the court on its own initiative has “spurred” the parties to act, the court cannot dispose of the petition on the merits. See Bell v. Jefferson Republican Club, 304 Pa.Super. 157, 450 A.2d 149 (1982); Nigrelli v. Cody, 281 Pa.Super. 156, 421 A.2d 1195 (1980); Getzik v. Spiegel, 280 Pa.Super. 175, 421 A.2d 462 (1980); Maurice Goldstein Co., Inc. v. Margolin, 248 Pa.Super. 162, 374 A.2d 1369 (1977). But cf. Cross v. 50th Ward Ambulance Company, 365 Pa.Super. 74, 528 A.2d 1369 (1987) (court need not proceed under Rule 209 when petition is patently frivolous or inadequate).

In the present case, the Bottling Company’s petition to dismiss, and Ms. Alford’s answer, raised several questions of fact material to the issue of forum non conveniens. The company averred, for example, that all fact witnesses in this case reside in New Jersey, that Ms. Alford received medical care for her injuries primarily in New Jersey and that Ms. Alford would “not suffer any hardship” if required to litigate her claims in New Jersey courts. Ms. Alford denied these and other averments of fact made by the Bottling Company in its petition. The parties, however, failed to act pursuant to Rule 209 to resolve their disagreements. Moreover, the court did nothing to “spur” the parties along. Instead, it decided to dismiss the action on petition and answer alone. We will not permit either the transfer or the dismissal of an action for reasons of forum non conveniens when issues of material fact remain unresolved. See Petty, supra; Korn, supra. A plaintiff’s choice of forum “is entitled to weighty consideration,” and a court should not frustrate that choice lightly. Fox v. Pennsylvania Power & Light Co., 315 Pa.Super. 79, 82, 461 A.2d 805, 806 (1983). We therefore reverse and remand for Rule 209 proceedings on all issues of material fact.

We recognize that in Petty, we simply reversed the order of transfer without remanding for evidentiary proceedings under Rule 209. The procedural posture of the Petty case, however, differs slightly from that of the present case. In Petty, the trial court ordered the petitioner to take depositions on disputed issues of fact. The petitioner responded by taking one deposition, which failed to support the decision to transfer. In the present case, on the other hand, neither the court nor the parties ever put the Rule 209 machinery in motion. Thus, while the petitioner in Petty failed to meet its evidentiary burden even though the court allowed it to do so, the Bottling Company in this case has not had the opportunity to meet its burden.

For the foregoing reasons, we reverse the order dismissing this action and remand for further proceedings. Jurisdiction is relinquished.

      . Some confusion arose in the trial court about whether a party should seek dismissal pursuant to 42 Pa.C.S. § 5322(e) through a petition or through preliminary objections. The Bottling Company captioned its petition as follows: "Petition of defendant ... pursuant to 42 Pa.C.S.A. § 5322(e) to dismiss plaintiff Joan Alford’s complain! nor, in the alternative, preliminary objections to dismiss plaintiff Joan Alford’s complaint." (emphasis added). We recognize no difference between a “petition to dismiss pursuant to 42 Pa.C.S. § 5322(e)" and a "preliminary objection in the form of a petition to dismiss pursuant to 42 Pa.C.S. § 5322(e).” A challenge based on the doctrine of forum non conveniens, unlike a challenge to personal jurisdiction or to propriety of venue, is not waived if the challenger fails to raise it in the form of preliminary objections.

      . Philadelphia County Local Rule of Civil Procedure 140(D) enables the motions judge to order the parties to proceed as required by Rule 209 when the judge determines that the petition and answer present "disputed issues of fact.” We find no evidence in the record that the court in this case invoked its authority under Local Rule 140(D) to "spur” this action along.