author: DEL SOLE, Judge: WIEAND, Judge,

text:
    506 A.2d 928
    Alita K. SERGI v. Edward SERGI, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 29, 1985.
    Filed March 12, 1986.

      Henry A. Hudson, Jr., Greensburg, for appellant.
    Paula Hopkins, Pittsburgh, for appellee.
    Before WIEAND, DEL SOLE and HESTER, JJ.
   DEL SOLE, Judge:

Appellant and Appellee were married on December 19, 1974 and a divorce granted on September 21, 1983. The present matter came before the Honorable Lawrence W. Kaplan for hearing on the issue of equitable distribution, being the only remaining claim in the parties’ divorce action. A hearing was held on January 9, 1985 at which time the court set down in narrative form findings and recommendations for distribution and indicated a decree nisi would be entered. The decree nisi was filed January 30, 1985. Following arguments on Appellant’s exceptions and Appellee’s petition for post-trial relief, the court entered a final order dismissing Appellant’s exceptions, granting in part and denying in part Appellee’s petition for post-trial relief and thereby amending the decree nisi. The decree nisi as amended and made final by the trial court’s order was subsequently reduced to the judgment from which this appeal is taken.

Appellant questions: 1) whether the trial court used the proper value of the parties’ real estate in decreeing equitable distribution; 2) whether the trial court properly-considered the Appellant’s age, income and financial station in life when dividing the marital property; and 3) whether the trial court was procedurally correct in entering its final decree.

Initially, we note that “(a)n appellate court will reverse an order determining equitable distribution of marital property only for an abuse of discretion by the trial court.” Baraff v. Baraff 338 Pa.Super. 203, 210, 487 A.2d 925, 929 (1985). “Under this standard, we do not usurp the hearing court’s duty as fact finder. Rather, we apply the legislative guidelines of the Divorce Code to the record to determine whether or not the hearing court has abused its discretion.” Barnhart v. Barnhart, 343 Pa.Super. 234, 237, 494 A.2d 443, 444 (1985); Semasek v. Semasek, 331 Pa.Super. 1, 6, 479 A.2d 1047, 1050 (1984). “An abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence ... However, an abuse of discretion will be found by this Court if the trial court failed to follow proper legal procedure or misapplied the law.” Braderman v. Braderman, 339 Pa.Super. 185, 190, 488 A.2d 613, 615 (1985). Considering this standard of review, we shall address the issues seriatim.

The thrust of Appellant’s first claim is that the trial court erred in selecting the date of trial value for the jointly owned marital residence as opposed to the date of separation for purposes of equitable distribution. The importance to the parties as to which valuation date is ultimately selected becomes apparent when it is realized that the home was acquired for $36,000, valued at the date of separation at $50,000 and at the date of the equitable distribution hearing at $63,000 (R.R.4).

We begin our analysis by turning to the Divorce Code of 1980 for guidance. Section 403(b) states “(b)oth parties shall submit to the court an inventory and appraisement of all property owned or possessed at the time action was commenced.” This direction to the parties does not however dictate a specific date for valuation to be used by the court when finally dividing the property. Appellant directs our attention to § 401(e)(4) in support of the proposition that valuation should occur as of the date of separation. Section 401(e)(4) reads:

(e) For purposes of this chapter only, “marital property” means all property acquired by either party during the marriage except:
(4) Property acquired after separation until the date of divorce ...

Reliance on this section of the Divorce Code in support of Appellant’s position is ill-founded. This language indicates the date at which property is no longer to be included for purposes of equitable distribution. This is distinct from the date which a court could use for valuation purposes of property that is determined to be marital and thus subject to equitable distribution.

In support of their respective positions, both parties rely upon this Court’s decision in King v. King, 332 Pa.Super. 526, 481 A.2d 913 (1984). In King, we reviewed the valuation of a pension for purposes of equitable distribution. More recently, we addressed the related issue of the valuation of retirement benefits in Braderman supra. We recommended in King and Braderman that such plans should be valued as of the date of the hearing. Braderman supra, 488 A.2d at 619. After the present value is determined it was pointed out that it is then necessary to calculate that portion of the present value that was earned during the marriage. Braderman supra.

As has already been mentioned, the drafters of the Divorce Code have provided that the parties are to submit to the court an initial valuation of their property at the time the action is commenced. To mandate that a trial court be limited to effecting an equitable distribution based only on this valuation information could result in a distribution based on stale financial data. This would hardly be in keeping with the overall declared policy of the Commonwealth which is to:

(e)ffectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability of the parties and insure a fair and just determination and settlement of their property rights.

23 P.S. § 102(a)(6) emphasis added.

Likewise, to require a trial court to value property as of the date of separation may also result in the use of stale financial data and subsequent inequitable distribution of marital property. An excellent example of the inequality that could result from such a requirement has been provided by the Honorable Eugene B. Strassburger, III, Court of Common Pleas of Allegheny County, Family Division. Judge Strassburger suggests:

Suppose at separation in 1975, Husband and Wife own both Blackacre and Whiteacre, each worth $100,000.00. At the date of trial in 1982, Whiteacre is worth $50,000.00 but Blackacre has increased in value to $300,000.00. If date of separation values were used, I could award Black-acre to one party and Whiteacre to the other on a 50-50 split. Yet Blackacre is today worth six times what White-acre is worth.

It is similarly possible to imagine a situation in which it would be inequitable to value marital property either, at the date the action is commenced, or the date of hearing. This Court recently encountered such a factual situation in Barnhart supra wherein we found the trial court erred in failing to include the value of husband’s pension as marital property even though it was no longer in existence at the time the divorce complaint was filed. Id., 494 A.2d' at 446. If the valuation date were restricted to either the date the action was commenced or the date of hearing, our determination that the pension is subject to equitable distribution as marital property would be meaningless. In such a situation, the date of separation would obviously be an appropriate valuation date. We noted that failure to include the pension “would completely nullify the protection of the marital property distribution provisions of the code since it would mean that any property acquired during marriage and subject to equitable distribution could be removed from such distribution by a spouse merely consuming it after separation and before the divorce.” Id. Failure to permit a trial court to value marital property at the time of separation could result in allowing a spouse to reduce the value of marital property through unbridled consumption.

Since equitable results will most likely flow from providing the court with the most recent information available, it is persuasively argued that this would occur by valuing marital property as of the date of the equitable distribution hearing. However, as the above discussion indicates, such is not always the case. Therefore, we do not attempt at this time to establish a valuation to be used in every situation. To recognize a specific valuation date as a matter of law would deprive the trial court of the necessary discretion required to effectuate economic justice.

In the present case, the marital residence was valued at the date of separation at $50,000 and at the date of the equitable distribution hearing at $63,000. (R.R.) The parties net equity was found to be $22,765 at the time of separation and $39,500 (rounded off) as of the date of the hearing. For purposes of distribution, the trial court valued the marital property of the parties in the residence to be $39,500 (R.R. 235). The court was fully cognizant that in utilizing the date of trial value, the value represented an increase that was due to both general market factors and expenditures by the husband since separation. Such considerations led to the court refusing to grant the Appellee a rental value for the husbands occupancy between separation and trial. With respect to this concern the court stated:

Wife has requested a rental value in regard to the premises which have been occupied by husband for the past four and a half years. Generally we would give considerable thought to this but for the fact that we are considering the day of trial value of this property and that the resulting appreciation also inures to her benefit.
The husband has been under the obligation to pay the mortgage, which has been paid down approximately $3,700 since separation, upon which the taxes, upkeep and general maintenance have been his responsibility.
It has been our general approach not to grant a fair rental for the reasons indicated, although I will admit that on occasion, where there has been a long period of separation and a long continuous use of the premises by one party to the exclusion of the other, that perhaps some fair return should be placed on the investment value of the nonoccupant’s capital. We do not, though, find it appropriate in this particular case.

(R.R. 228-229).

While the Appellee may be thought of as having received the benefit of property appreciation occasioned by Appellant’s efforts, Appellant received the benefit of occupying the residence from the date of separation to the date of hearing, a period of approximately four and a half years, without having to account to Appellee for a rental value. It cannot be said that the trial court abused its discretion in valuing the property at the date of hearing given the facts of this case.

Appellant next contends that while the trial court mentioned the disparity of income, age and financial station in life of the parties, it failed to take cognizance thereof and divided the marital property without regard to it. It is further asserted in this regard that the trial court failed to properly consider the parties’ contributions which could be traced to their premarital funds.

The court found that prior to marriage, each owned an automobile which after marriage was subsequently traded for another. Both parties were awarded the respective vehicles taken by them and these items were not further considered as they were found to have little value. In addition to the marital residence, previously discussed, the court determined that a joint Dollar Bank account in the amount of $13,000 although involving premarital cash had become a marital asset. (R.R. 230). Premarital cash consisted of savings accounts. The Appellant’s account totaled $9,557.48 and the Appellee’s $4,056.32. (R.R. 224). These cash assets were found to have been transmuted into marital property over time. Discussing the premarital cash the court stated:

It has been my approach, where we have definable premarital cash and where the marriage has not been of a long duration, to give some credit to the respective parties for these premarital cash assets, but not necessarily the entire amount.
I look upon these credits as being more or less a disappearing credit, depending upon the length of the marriage. If the parties have been married a long time, perhaps there is no credit whatsoever. But in this case, the parties had been married five and a half years, and I feel that they are each entitled to some credit for their premarital cash ...

(R.R. 230-231).

The parties were given credit for the premarital cash in the amount of $2,000 to the Appellee and $5,000 to Appellant leaving Appellant a $3,000 credit. (R.R. 231).

While Appellant argues that Appellee only contributed $2,000 in cash and $2,000 went for the car she left the marriage with, testimony on this point was contested. Appellee testified her premarital cash consisted of $4,000 and was blended into the joint account after marriage. (R.R. 63). While Appellant may disagree with Appellee as to the amount of premarital cash she contributed to their joint account the court did not abuse its discretion in apparently believing Appellee’s version of the facts. “In reviewing the trial court’s determination, we must keep in mind that the court was free to accept or reject the parties’ testimony.” Baraff supra, 487 A.2d at 929. Having determined that the premarital cash had been transmuted into marital property, the court was under no obligation to return the full value of the premarital cash to the parties prior to working an equitable distribution.

Prior to distributing the marital property, the trial court indicated “that an equal distribution would be used as a starting point, and thereafter the factors provided under Section 401 D of the divorce code would be applied to determine if there should be any deviation from the recommended initial distribution of 50-50.” (R.R. 232).

The court then engaged in an extensive review of the factors which influenced its distribution plan. It was pointed out that this was a relatively short marriage without children. (R.R. 232). Further:

There is considerable difference in age between the parties ... Given the fact that they are both gainfully employed and hopefully appear to be in good health, this age differential should not enter into consideration in this particular case. Both seem to be maintaining the station in life consistent with that which they enjoyed prior to their marriage, and during their marriage, more importantly, and we received no evidence to indicate that they are having any difficulty in making ends meet.

(R.R. 233).

The court then indicated:

While there was discussion about contribution by one party to the other for educational purposes, that certainly would not be appropriate in this case since the education was obtained while both parties continued to work, and it can’t be said with any certainty that husband was any more responsible for wife’s education than she herself was.
Their contribution to the marriage during the marriage was substantially equal ...
Based upon these factors, the Court would be hard pressed to find any reason to deviate from the standard which is generally followed, which is that an equal distribution will generally be equitable. And we would make such a finding in this particular case.

(R.R. 233-234).

The marital assets were found to total $56,190 and consisted of the following: residence $39,500; furniture/appliances $2,000; Mellon account with interest $1,690; Dollar account $13,000. (R.R. 235). Half the assets therefor came to $28,095. Appellant received the residence, and furniture/appliances giving him a total of $41,500. Appellee received the bank accounts for a total of $14,790. Appellant was given his $3,000 credit for premarital assets contributed, plus an additional $190 as the result to his obligation to pay marital debts. To bring the Appellee to the figure representing half the marital assets, Appellant was found to owe Appellee a balance of $10,215. (R.R. 235).

It is true that “(t)he concept of equitable distribution is not an equal division of marital property.” Semasek, supra, 331 Pa.Super. at 11, 479 A.2d 1952. “(A)n equitable division often will not be even; the essence of the concept of an equitable division is that ‘after considering all relevant factors/ the court may ‘deem() just’ a division that awards one of the parties more than half, perhaps the lion’s share of the property.” Platek v. Platek, 309 Pa.Super. 16, 24, 454 A.2d 1059, 1063 (1982). While Appellant may disagree with the weight the court chose to accord to the parties ages, incomes, and educations, the record indicates that consideration was given to the factors provided in § 401(d) of the Divorce Code. On previous occasion, this Court has stated:

We note that there is no simple formula by which to divide marital property. The method of distribution derives from the facts of the individual case. The list of factors of 401(d) serves as a guideline for consideration, although the list is neither exhaustive nor specific as to the weight to be given the various factors. Thus, the court has flexibility of method and concomitantly assumes responsibility in rendering its decisions.

Semasek, supra, 331 Pa.Super. at 11, 479 A.2d at 1052.

While another court may choose to give different weight to the factors of § 401(d), it is apparent that the trial court considered these factors in its determination. Since the record fails to reflect an abuse of discretion on the part of the trial court, its decision must stand with respect to the weight accorded the factors of § 401(d).

Finally, Appellant claims the trial court was procedurally incorrect in modifying its decree entered at trial with a later Decree Nisi. Initially it appears that Appellant confuses the court’s announcing its decision on record with the entry of a decree. However, we have reviewed Appellants Exceptions to Order Or Decree of Equitable Distribution filed January 21, 1985 as well as his Exceptions to Order Or Decree of Equitable Distribution filed February 11, 1985 and find he has failed to preserve this issue of review. See, Sutliff v. Sutliff, 326 Pa.Super. 496, 502, 474 A.2d 599, 602 (1984).

Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

WIEAND, J., files a concurring opinion.

WIEAND, Judge,

concurring:

The issue in this appeal is whether marital property, for purposes of making equitable distribution between the spouses, should be valued as of the date of separation or as of the date of hearing before the court. This is a difficult issue. The values of most family investments, whether in the form of real estate, a family business, securities, a pension fund, an automobile or a bank account, fluctuate between the date of separation and the date of making equitable distribution. Frequently they will increase in value because of personal effort or capital expenditures made by one of the spouses. In other instances, the value of marital property may increase or decrease solely because of market conditions. Decisions by the courts of other jurisdictions as to a valuation date are not uniform. See: Annot., 34 A.L.R.4th 63 (1984). In Pennsylvania, the Divorce Code of April 2, 1980, P.L. 63, No. 26, 23 P.S. § 101 et seq. does not provide an unequivocal answer. Nevertheless, it must be consulted.

Section 401(e) of the Divorce Code provides that for purposes of making distribution, “ ‘marital property’ means all property acquired by either party during marriage except ... (4) [pjroperty acquired after separation until the date of divorce____” If “increased value” is to be deemed “property acquired after separation,” then it would seem that an increase in value after separation should not be subject to equitable distribution. Such a rule seems to be consistent with Pa.R.C.P. 1920.33(a) which directs each party to a divorce action to file, “[wjithin sixty days after service of a pleading or petition containing a claim for ... distribution of property[,]” an inventory and appraisement of property.

I would hold, on the basis of Section 401(e)(4) of the Divorce Code, that in the absence of extraordinary circumstances, the date for evaluating marital property is the date on which the parties separate. In most instances this will achieve a fair result. The use of the date of separation, moreover, will encourage a prompt settlement of property rights between the spouses. It will also have the advantage of allowing the parties to get on with their separate lives as quickly as possible without being required to calculate the effect of each expenditure of time or capital upon a later decree of distribution. Even in protracted divorce actions, the parties’ economic endeavors following separation will not be hampered unnecessarily by fears that they will be robbed of the benefits of their own endeavors by a future decree of court.

Nevertheless, there will be circumstances in which it will be inequitable to place a value on marital property as of the date of separation and make distribution according to such a value. In those situations the Divorce Code vests sufficient discretion in the trial court to achieve a fair and equitable result. In making distribution a court is required to consider “all relevant factors including: ... (5) The opportunity of each party for future acquisitions of capital assets and income. (6) The sources of incomes of both parties[.] ... (8) The value of the property set apart to each party____ (10) The economic circumstances of each party at the time the division of property is to become effective.” 23 P.S. § 401(d). In making distribution, therefore, a court may, where necessary to achieve equity, take into consideration events which have occurred and which have affected the value of marital property following separation.

The instant facts present one of those exceptional cases. The marital home which is the subject of dispute in the instant case was owned by husband and wife as tenants by the entireties, having been purchased during the marriage for $36,000.00. On the date of separation it had a value of $50,000.00, and on the date of hearing, it was appraised at $63,000.00. The parties had an equity in the home of $22,765.00 at the time of separation, but this equity had increased by the time of hearing to approximately $39,-500.00. Following separation, the property was occupied by appellant, who, during the four years intervening prior to the hearing, made monthly mortgage payments which contributed to the increased equity in the home. The trial court accepted the value at the time of hearing and divided the equity of $39,500 equally between the parties. Because the court determined that the rental value of the property occupied by appellant and the contributions to capital which he had made were roughly equal, the court did not specifically compute or divide the rental value of the home or the mortgage payments or improvements made. Under these circumstances, I agree with the majority that the trial court did not abuse its discretion by making distribution according to the value of the dwelling house on the date of the equitable distribution hearing.

      . 23 P.S. § 101 et seq.

      . This is in accord with Pa.R.C.P. 1920.33(a) which states in part: Within sixty days after service of a pleading or petition containing a claim for determination and distribution of property under Section 401 of the Divorce Code, each party shall file an inventory and appraisement of all property owned or possessed at the time the action was commenced and all property transferred within the preceding three years. The inventory and appraisement shall set forth:
      1) All marital property in which either or both have a legal or equitable interest individually or with any other person at the date of filing the complaint and the name of such other person;
      2) the date each asset was acquired, the cost, if purchased, or the value at time of acquisition if not purchased;
      3) a description of all property in which a spouse has a legal or equitable interest which is claimed to be excluded from marital property and the basis for such exclusion, and
      4) the value of each asset as of the date the action was commenced and the amount, nature and effective date of any outstanding lien and the name and address of the holder of the lien."

      . Treasure v. Treasure, No. 246 (Allegheny Ct.C.P., October 1980), 130 P.L.J. 389 (1982).

      . 23 P.S. § 401(d) states:
      (d) In a proceeding for divorce or annulment, the court shall, upon request of either party, equitably divide, distribute or assign the marital property between the parties without regard to marital misconduct in such proportions as the court deems just after considering all relevant factors including:
      (1) The length of the marriage.
      (2) Any prior marriage of either party.
      (3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.

        (4) The contribution by one party to the education, training, or increased earning power of the other party.
      (5) The opportunity of each party for future acquisitions of captital assets and income.
      (6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits.
      (7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
      (8) The value of the property set apart to each party.
      (9) The standard of living of the parties established during the marriage.
      (10) The economic circumstances of each party at the time the division of property is to become effective.

      . Compare: Anthony v. Anthony, — Pa.Super.-, — A.2d-(J. E1008/85; filed ).

      . In an appropriate case, the resolution of these matters by approximation might be questioned. In the instant appeal, however, this aspect of the court’s computation has not been challenged.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    506 A.2d 936
    COMMONWEALTH of Pennsylvania, v. Robert E. DOUGHERTY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 18, 1985.
    Filed March 20, 1986.

      William P. Wismer, Media, for appellant.
    Ann Osborne, Assistant District Attorney, Media, for Com., appellee.
    Before CIRILLO, MONTEMURO and POPOVICH, JJ.
   CIRILLO, Judge:

This is an appeal by Robert E. Dougherty from a judgment of sentence of the Court of Common Pleas of Philadelphia County. A jury found appellant guilty of driving under the influence of alcohol. Post-trial motions were denied and appellant was ordered to serve a term of imprisonment of not less than forty-eight hours nor more than twenty-three months and three weeks, pay a fine of $750.00, and pay costs of prosecution.

The manner in which appellant has presented his questions for our review is itself a source of some confusion and must be considered preliminarily.

In the “questions presented” portion of his brief, appellant challenges the weight and sufficiency of the evidence, and separately urges trial court error in not instructing the jury on an alleged inherent unreliability of the breathalyzer. However, in the body of his argument, appellant argues that trial counsel was ineffective for not preserving these issues.

Clearly, the weight, sufficiency, and jury charge issues are waived, for as appellant concedes, his counsel did not preserve them for appellate review.

Issues which are neither orally argued nor briefed in post-trial motions are abandoned. Commonwealth v. Man igault, 501 Pa. 506, 462 A.2d 239 (1983); Commonwealth v. Urbina, 290 Pa.Super. 117, 434 A.2d 157 (1981). Furthermore, we reiterate our holding in Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983). “Boilerplate” attacks on the verdict, such as those contained in appellant’s post-trial motions, and again in the first and second questions presented in appellant’s brief are:

... inadequate to preserve any issues for appellate review. Post-verdict motions now must allege in what particular respect(s) the evidence was insufficient to prove the elements of the crime(s), or in what particular respect(s) the weight of the evidence was such that the verdict should be overturned and a new trial granted.

Commonwealth v. Whiteman, 336 Pa.Super. 120, 126, 485 A.2d 459, 462-63 (1984), citing Commonwealth v. Holmes, supra.

Thus, as concerns these claims, appellant’s only option on appeal is to allege the ineffectiveness of his trial counsel for not preserving the substantive claims. However, ineffective assistance is not one of the “questions presented”. Rather, it is only discussed as an element of the substantive claims which we have already deemed waived. Nonetheless, we deign to consider the ineffective assistance of counsel claims. We are able to glean from appellant’s inartfully drafted brief, his mistaken belief that an ineffective assistance claim revives those substantive claims which counsel is allegedly ineffective for failing to preserve. This explains appellant’s failure to include the ineffective assistance claims in his “questions presented”, as well as his inclusion of the waived issues in that portion of his brief.

Beyond the ineffective assistance of counsel claims, appellant also contends that he was denied an adequate preliminary hearing because the Commonwealth failed to produce at the hearing, a certificate of accuracy for the breath test machine, a log showing the results at calibration tests performed upon the machine, and testimony that appellant had been observed for twenty minutes prior to administration of the breath test. Appellant urges that the failure of the district justice to require the production of these evidentiary items rendered the test results inadmissible for the purpose of the hearing, as lacking the proper foundation. Appellant argues that the practical effect was the denial of an adequate preliminary hearing.

Finally, appellant challenges the constitutionality of the Pennsylvania Driving Under the Influence Statute, 75 Pa. C.S. § 3731. . Appellant argues that the Statute: (1) denies him the right to due process of law by providing the district attorney with unreviewable and excessive discretion over acceptance into the Accelerated Rehabilitation Disposition (ARD) Program; (2) violates the doctrine of separation of powers by prohibiting district justices from reducing or modifying charges brought pursuant to 75 Pa.C.S. 1371; and (3) impermissibly exacts a penalty for the exercise of a constitutional right by “coercing” accuseds to accept disposition pursuant to the ARD program rather then seek a trial by jury.

We turn first to appellant’s ineffectiveness of counsel claims. In considering a claim of ineffectiveness of counsel, this Court utilizes a three-component analysis. First, it is necessary to determine whether the issues not preserved were of arguable merit. Commonwealth v. Wilkerson, 490 Pa. 296, 416 A.2d 477 (1980). If the issues were of arguable merit, we then consider whether the course chosen by trial counsel had some reasonable basis designed to effectuate his client’s interests. Commonwealth v. Manigault, 501 Pa. 506, 462 A.2d 239 (1983); Commonwealth v. Burton, 491 Pa. 13, 417 A.2d 611 (1980); Commonwealth v. Cotton, 338 Pa.Super. 20, 487 A.2d 830 (1984) . Finally, no basis for reversal exists if trial counsel’s actions were not prejudicial to the defendant. See Commonwealth v. Pierce, 345 Pa.Super. 324, 498 A.2d 423 (1985) (en banc); Commonwealth v. Byers, 349 Pa.Super. 162, 502 A.2d 1324 (1986). Counsel will not be considered ineffective for failing to preserve a baseless claim. Commonwealth v. Giknis, 491 Pa. 215, 420 A.2d 419 (1980); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Appellant’s initial claim of ineffectiveness is that trial counsel failed to preserve for review a post-trial motion that the evidence was insufficient to sustain the jury’s verdict of guilty. After careful review of the record, we conclude this issue was void of merit, and that trial counsel was not ineffective for failing to preserve it for review.

The evidence, read in the light most favorable to the verdict winner, reveals that appellant was observed by Haverford Township Police as he was operating a motor vehicle that was swerving from side to side. Upon stopping appellant’s vehicle, an officer noticed the odor of alcohol and an accumulation of alcoholic beverage containers inside the vehicle. Appellant had difficulty walking and standing upright without placing his hand upon his vehicle. Appellant experienced difficulty in performing on-site sobriety tests. Accordingly, we find the evidence sufficient to support appellant’s conviction for driving under the influence. See Commonwealth v. Slout, 288 Pa.Super. 471, 432 A.2d 609 (1981); Commonwealth v. Richardson, 307 Pa.Super. 191, 452 A.2d 1379 (1982); Commonwealth v. Whiteman, 336 Pa.Super. 120, 485 A.2d 459 (1984).

Appellant also challenges the sufficiency of the evidence by attacking the reliability and relevance of the test results. However, as in Commonwealth v. Whiteman, supra:

The breathalyzer results were merely proof of the punch. Appellant’s argument, directed in essence to the weight and admissibility of one particular piece of evidence merits no consideration in an assessment of the evidence. See generally Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977).

Id. 336 Pa.Super. at 128, 485 A.2d at 463-65.

Inasmuch as appellant’s sufficiency arguments are void of arguable merit, we hold that his trial counsel was not ineffective for failing to preserve them for review. Commonwealth v. Wilkerson, 490 Pa. 296, 416 A.2d 477 (1980).

Appellant’s second claim of ineffectiveness is based upon trial counsel’s failure to preserve for review a post-trial motfion that the verdict was against the weight of the evidence. We conclude that this issue was also meritless and;, therefore, that trial counsel was not ineffective. For relief to be- granted on the ground that a verdict was against the weight of the evidence, the record must reflect that the verdict was so contrary to the evidence produced at trial as to shock one’s sense of ¡justice and to make the awárd of a new trial imperative. Commonwealth v. Mitchell, 319 Pa.Super. 170, 465 A.2d 1284 (1983). We are convinced that the evidence produced at trial in this case fully supports the verdict rendered by the jury.

Appellant’s final ineffectiveness claim concerns trial counsel’s failure to file requested! points for charge regarding an alleged “inherent unreliability” of the breath-test machine. In sum, appellant argués that the machine exhibited a standard testing deviation in excess of that allowed by 67 Pa. Code Ch. 77.6(b)(2)(h), and that trial counsel was ineffective for (1) failing to submit a written request for a jury charge to that effect, and (2) failing to preserve this issue for review. We are convinced that the trial court properly disposed of appellant’s “unreliability” argument as lacking merit, particularly since it presupposes that the accuracy of the machine must be measured to ten thousandths of a percent, in the face of a statute indicating only measurements in thousandths. Regardless, the deviation urgjed by appellant would not have brought his reading witjiin the legal limit. Inasmuch as the argument in support of such a jury charge is without merit, trial counsel was not ineffective for failing to submit same, and was not ineffective for failing to preserve the issue for review.

We next consider appellant’s contentions regarding the adequacy of his preliminary hearing. In essence, appellant argues that the Commonwealth failed to establish a prima facie case at the hearing and that he was wrongfully held for trial on the basis of inadmissible evidence. Appellant urges a failure of the Commonwealth to lay a proper foundation for the admissibility of the test results by not showing adherence to the accuracy testing procedures set forth in 75 Pa.C.S. § 1547(c)(1). However, our examination of the record shows that the Commonwealth clearly established a prima facie case at the hearing without documenting the accuracy of the machine. The preliminary hearing testimony of the arresting officer indicates that he observed (1) appellant’s vehicle swerving and stopping for no apparent reason, (2) the smell of alcohol upon stopping appellant’s vehicle, (3) numerous alcoholic beverage containers in appellant’s vehicle, and (4) the actions of appellant himself as he inadequately performed field sobriety tests. Appellant’s contention that he was denied an adequate preliminary hearing is without merit because the Commonwealth was successful in establishing a prima facie case at the preliminary hearing even without documenting the accuracy of the breath-test results. Furthermore, even if the Commonwealth had not done so, our Supreme Court has stated that:

[I]f in fact it is determined at trial that the evidence of the Commonwealth is sufficient to be submitted to the jury, then any deficiency in the presentation before the district justice would have been harmless ...

Commonwealth v. Hess, 489 Pa. 580, 590, 414 A.2d 1043, 1048 (1980); see also Commonwealth v. Rineer, 310 Pa.Super. 241, 456 A.2d 591 (1983).

Finally, we consider appellant’s three challenges to the constitutionality of 75 Pa.C.S. § 3731. First, appellant contends that 75 Pa.C.S. § 3731 denies the right to due process of law by providing prosecutors with unreviewable, excessive discretion in that an accused is presented to the court for acceptance into the ARD program only upon motion of the district attorney. This very contention was recently considered by our Supreme Court in Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985), wherein the Court explicitly stated:

We conclude, therefore, that district attorneys, under the rules promulgated by this Court, have the sole discretion in any criminal case, including drunk driving cases, to move for the admission of a defendant into ARD.

Id., 508 Pa. at 306, 495 A.2d at 932 (emphasis in original).

Moreover, the Court in Lutz stated that such discretion is not limited by the mandatory sentencing provisions of the Motor Vehicle Code:

The argument is that failure of the district attorney to submit a case for ARD, in the context of mandatory sentencing, amounts to an unconstitutional exercise of the judicial power to sentence. Such an argument fails to acknowledge, however, that ARD is a pre-trial disposition, and that sentencing is a post-trial disposition of the case. Moreover, the failure of a Commonwealth attorney to submit a case for ARD does not, in itself, impose a sentence any more than the exercise of prosecutorial discretion in deciding to prosecute the case in the first instance imposes a sentence.

Id., 508 Pa. at 306, 495 A.2d at 932-33 (emphasis in original).

Therefore, in view of the Court’s decision in Lutz, it is clear that appellant’s first constitutional challenge must fail.

Appellant next contends that the statute violates the separation of powers doctrine by prohibiting district justices from reducing or modifying charges brought under 75 Pa.C.S. § 3731. Section 3731(f) states that the district justice “shall not reduce or modify the original charges.” In Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293 (1985), our Court held that the statutory prohibition against reduction or modification of drunk driving charges by district justices is not unconstitutional as a violation of separation of powers in view of the fact that it simply prohibits reduction or modification of the original charges, and does not prohibit dismissal if a prima facie case is not established. Appellant’s second constitutional challenge falls for the reasons stated in Hernandez, supra.

Appellant’s final constitutional challenge is that minimum sentencing for first time drunk driving offenders, provided by 75 Pa.C.S. § 3731(e)(l)(i), is unconstitutional as it will inevitably coerce defendants to accept an ARD disposition rather than face mandatory incarceration if convicted. Therefore, in appellant’s view, the mandatory minimum sentence provision unconstitutionally exacts a penalty for the exercise of the right to a jury trial. We begin by noting that “[T]he selection of the [mandatory sentence], being a legislative determination, carries a strong presumption of validity, and of constitutionality.” Commonwealth v. Middleton, 320 Pa.Super. 533, 467 A.2d 841 (1983).

We are in agreement with the opinion expressed by the trial court that a defendant’s penalty for violation of 75 Pa.C.S. § 3731 results not from his own decision to include himself or to refrain from participation in ARD, when that option is available. Rather, any penalty imposed results from his conviction for the offense charged. Accordingly, we hold that absent a suggestion of fraud, mistake, bad faith, or other inappropriate conduct, the mandatory sentence provided pursuant to 75 Pa.C.S. § 3731 is not a violation of an accused’s right to trial by jury.

Order affirmed.

POPOVICH, J., concurs in result.


author: ROBERTS, Judge:

text:
    506 A.2d 941
    COMMONWEALTH of Pennsylvania v. Susan Marian KITCHENER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 10, 1985.
    Filed March 24, 1986.

      John P. Lawler, Stroudsburg, for appellant.
    James F. Marsh, District Attorney, Stroudsburg, for Commonwealth, appellee.

      Before WIEAND, CERCONE and ROBERTS, JJ.
   ROBERTS, Judge:

Appellant Susan Marian Kitchener and her co-defendant Kevin Michael Donahue, in a non-jury trial, each were found guilty of criminal conspiracy, 18 Pa.C.S.A. § 903(a), possession of a controlled substance, 35 P.S. § 780-113(a)(16), and possession of a controlled substance with intent to deliver, 35 P.S. § 780-113(a)(30). Concluding that Kitchener’s arrest was proper, that the Commonwealth presented evidence sufficient to prove guilt beyond a reasonable doubt, and that no abuse of discretion accompanied sentencing, we affirm the judgment of sentence.

An arrest warrant was issued for Donahue, a fugitive from justice in the State of New Jersey, and executed at the couple’s residence at about noon on July 6, 1983. After announcing their presence and then hearing running footsteps, the police immediately entered the home. The period from announcement until entry was approximately 10 seconds. While securing the residence, one of the officers found in plain view a small amount of marijuana in an ashtray in the living room. Based upon this discovery, a search warrant was issued to investigate the entire residence for illegal drugs and drug paraphernalia. The search warrant was executed about two hours after Donahue’s arrest. From this search, the police found, under the bed where defendants were discovered, a mason jar with 327.7 grams of metamphetamine and a briefcase containing syringes, 78.8 grams of metamphetamine, and Kitchener’s automobile registration card. Also found was a plastic bag with 20.3 grams of metamphetamine located in the freezer compartment of the refrigerator and 54 milligrams of cocaine and an indeterminate amount of marijuana located under a living room chair. Subsequent to this discovery, Kitchener also was arrested.

Absent exigent circumstances, a police officer executing a warrant must give notice of his identity and announce his purpose prior to entering a private residence. Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971). Additionally, again absent exigent circumstances, even where the police comply with the “knock and announce” requirements, forcible entry into the premises will not be permitted until the occupants are first given an opportunity to voluntarily surrender the premises. Id., 442 Pa. at 561, 277 A.2d at 163. Here, Kitchener asserts the ten second lapse between the time the police announced their identity and purpose and their subsequent forcible entry into the residence was not long enough to pass constitutional muster under DeMichel, supra. See Pa.R. Crim.P. 2007(a). But, as we conclude that exigent circumstances were present, Kitchener’s claim is meritless.

In Commonwealth v. Eliff, 300 Pa.Super. 423, 446 A.2d 927 (1982), this court set forth alternative tests to determine whether exigent circumstances exist. The first test, as initially proposed in Dorman v. United States, 435 F.2d 385 (D.C.Cir.1970), lists a number of factors to be examined. Among the factors considered by the Dorman court were: (1) the gravity of the offense, (2) whether the suspect is reasonably believed to be armed, (3) the degree to which probable cause exists beyond minimum warrant requirements, (4) whether there is strong reason to believe the suspect is in the premises to be entered, (5) the likelihood of the suspect’s escape, (6) whether the opportunity for peaceable entry was offered, and (7) the time of entry. Id. at 392-393 as cited in Eliff, supra, 300 Pa.Super. at 439, 446 A.2d at 935. The alternative test, as set forth in United States v. Flickinger, 573 F.2d 1349 (9th Cir.), cert. denied, 439 U.S. 836, 99 S.Ct. 119, 58 L.Ed.2d 132 (1978), adopts a more flexible “totality of the circumstances” approach. See Eliff, supra, 300 Pa.Super. at 439-40, 446 A.2d at 935.

Under either standard, we see no basis for disturbing the finding of exigent circumstances by both the suppression and post-verdict courts. This daytime entry was made into the residence of a man with a history for violence and a propensity for fleeing from police. The investigating officers were aware that Donahue’s record included arrests for several violent crimes including attempted murder, aggravated assault, and assault with a deadly weapon. A fugitive warrant for his arrest, issued by the State of New Jersey, was based in part on Donahue’s possession of a handgun in his car. Further, as was noted at the suppression hearing, Donahue was reputed to be “a person who liked guns, machine guns, in particular.”

When, after announcing their identity and purpose, the police heard running footsteps within the residence, strong reason existed to believe that Donahue was attempting either to escape or to arm himself. Clearly, given all that had come into the knowledge of the police prior to execution of the arrest warrant, forcible entry into the residence was justified by exigent circumstances. See, e.g., Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982) (exigent circumstances exist where potential harm and peril to police safety are present); Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246 (1982) (where there are indications that a suspect is fleeing, exigent circumstances are found). At this instance, the requirements of the “knock and announce” rule became inapplicable. See Stanley, supra; Norris, supra.

Kitchener next contends that the Commonwealth failed to introduce sufficient evidence to sustain a guilty verdict on each of the three counts. She maintains that no evidence was presented which uniquely linked her to the controlled substances. Yet, her claim is not supported by the record.

As to the counts of possession, since the controlled substances were not found on the persons of either Kitchener or Donahue, the Commonwealth needs to prove “constructive possession,” i.e. conscious dominion over the contraband. See Commonwealth v. Chenet, 473 Pa. 181, 184, 373 A.2d 1107, 1108 (1977); Commonwealth v. Fortune, 456 Pa. 365, 368-69, 318 A.2d 327, 328 (1974). This burden of proof may be met by showing joint possession by defendants. “Possession of an illegal substance need not be exclusive; two or more can possess the same drug at the same time.” Commonwealth v. Macolino, 503 Pa. 201, 209-10, 469 A.2d 132, 136 (1983).

Circumstantial evidence may serve to sustain a conviction on the conspiracy charge. “A conspiracy may be proven inferentially by showing the relation, conduct, or circumstances of the parties, and the overt acts of alleged co*conspirators are competent as proof that a criminal confederation has in fact been formed.” Commonwealth v. Kennedy, 499 Pa. 389, 395, 453 A.2d 927, 930 (1982) (citations omitted).

In our review of Kitchener’s sufficiency arguments, we must view the evidence in the light most favorable to the Commonwealth. The test is whether the trier of fact could reasonably have found all the elements of the crime to have been established beyond a reasonable doubt. See Commonwealth v. Eckert, 244 Pa.Super. 424, 428, 368 A.2d 794, 796 (1976).

Here, the evidence clearly supports the finding that Kitchener was in joint constructive possession of the controlled substances. The drugs were found in a dwelling where Kitchener and Donahue were the sole adult residents. This contraband was located in places which would be peculiarly within the access and knowledge of the residents. Surely, it was reasonable for the fact finder to conclude that Kitchener knowingly or intentionally possessed controlled substances. See 35 P.S. § 780-113(a)(16). Metamphetamine was discovered in a mason jar and in a briefcase under the bed where defendants were found. Notably, the briefcase also contained Kitchener’s automobile registration card. Further, the locating of contraband in the freezer and under a living room chair, areas peculiarly within the control of Kitchener and Donahue, lends additional support for the conclusion that each defendant intended to jointly possess the substances. See Commonwealth v. DeCampli, 243 Pa.Super. 69, 364 A.2d 454 (1976) (contraband found in places peculiarly within control of the accused provides proof of intent to exercise control); Commonwealth v. Gilchrist, 255 Pa.Super. 252, 386 A.2d 603 (1978) (elements of joint constructive possession may be inferred from a totality of the circumstances). Similarly, it was reasonable for the fact finder to determine that Kitchener possessed the contraband with the intent to deliver. See 35 P.S. § 780-113(a)(30). The search of the residence uncovered over 400 grams of metamphetamine together with a briefcase containing syringes. Based upon the quantity of contraband and the presence of paraphernalia used in drug trafficking, the inference of possession with intent to deliver was a reasonable one. See Commonwealth v. Bagley, 296 Pa.Super. 43, 442 A.2d 287 (1982); Commonwealth v. Santiago, 462 Pa. 216, 340 A.2d 440 (1975). It must be concluded that sufficient evidence was presented to sustain a finding of guilt beyond a reasonable doubt for both possessory offenses.

Additionally, these same circumstances support a finding of conspiracy. Under 18 Pa.C.S.A. § 903(a), a person is guilty of conspiracy with another person if the two agree to commit a crime. The existence of an agreement may be proven through an examination of the “relations, conduct, circumstances and overt acts” of the parties. See Commonwealth v. Finnegan, 280 Pa.Super. 584, 599, 421 A.2d 1086, 1093 (1980); see also Commonwealth v. Dolfi, 483 Pa. 266, 396 A.2d 635 (1979). This record establishes that Kitchener and Donahue, being the sole adult residents of a home, stored large quantities of contraband in areas which were peculiarly within their knowledge and access. These circumstances establish that the unlawful possession only could have come about through the joint conduct of the co-defendants. In light of the proof provided, it was not unreasonable for the fact finder to infer that Kitchener and Donahue agreed to possess the drugs. There is no basis for disturbing the trial court’s finding that sufficient evidence existed to sustain the conspiracy conviction.

Lastly, Kitchener claims that the trial court abused its discretion by harshly sentencing her to the same term of imprisonment as her co-defendant Donahue. She notes that Donahue has an extensive criminal history while she has had “little involvement” with the law. Further, Kitchener points to her status as a mother and sole means of support for two children.

Sentencing is a function which falls within the discretion of the trial court. On appeal, a sentence may not be disturbed unless it “exceeds the statutorily prescribed limits or is so manifestly excessive as to constitute too severe a punishment.” Commonwealth v. Wrona, 442 Pa. 201, 206, 275 A.2d 78, 80-81 (1971) (citation omitted). Here, neither condition is satisfied.

Kitchener was sentenced to eleven and one-half to twenty-three months imprisonment. Based upon her conviction for conspiracy, possession, and possession with intent to deliver, the imposed sentence was clearly within the statutorily prescribed limits. 42 Pa.C.S.A. § 9721. Additionally, the transcript of sentencing reveals that each of Kitchener’s allegedly mitigating claims was argued before the court. However, the court rejected these claims for two principal reasons. First, it was noted that the quantity of drugs found on the premises exceeded that which would be for personal use. Second, and related to the amount possessed, the court emphasized the serious problem of bedroom communities becoming warehouses and manufacturing places for the drug industry. Recognizing that Kitchener has a “relatively clean record,” the court regarded the gravity of the crime and the danger it posed to society as justifying the sentence.

This sentence is not “so clearly excessive” as to constitute too severe a punishment. See Commonwealth v. Hollerbush, 298 Pa.Super. 397, 407, 444 A.2d 1235, 1240 (1982). On the face of this record, the sentencing court’s rejection of Kitchener’s assertions of mitigating circumstances was neither an error of law nor an abuse of discretion. See Commonwealth v. Herberg, 306 Pa.Super. 245, 452 A.2d 536 (1982); Hollerbush, supra.

Judgment of sentence affirmed.

      . Kitchener claims that she was arrested during the execution of the arrest warrant for Donahue. Asserting that no probable cause existed at that time for an arrest, Kitchener maintains that the subsequent search was illegal. However, the record establishes that she was not arrested until after the execution of the search warrant, some two hours later. Kitchener was able to move freely about the premises. She prepared a meal for Donahue and cared for her children. At no time was she told that she could not leave the residence. Accordingly, as Kitchener could hold no “reasonable impression” that she was being restrained or deprived of her liberty, no arrest took place during the execution of Donahue’s arrest warrant. See Commonwealth v. Benson, 280 Pa.Super. 20, 27, 421 A.2d 383, 386-87 (1980) citing Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978); Commonwealth v. Richards, 458 Pa. 455, 327 A.2d 63 (1974). Kitchener’s lack of probable cause claim is of no consequence as no arrest occurred until after the search.


text:
    506 A.2d 946
    David ZELLAT, Appellant, v. Ruby ZELLAT, a/k/a/ Ruby McBride a/k/a Rubye Zellat.
    Superior Court of Pennsylvania.
    Argued Dec. 18, 1985.
    Filed March 27, 1986.

      Moira Dunworth, Philadelphia, for appellant.
    Before CIRILLO, MONTEMURO and POPOVICH, JJ.
   CIRILLO, Judge:

This child custody action was initiated by appellant, a Pennsylvania resident, for the custody of his daughter Jessica. Jessica’s residence has been with her Tennessee resident mother since October 1, 1983.

The trial court found no basis for the assumption of jurisdiction and it sustained appellee-mother’s preliminary objection to jurisdiction and dismissed appellant-father’s complaint for custody and visitation. We affirm.

Jessica Rae Zellat was born on January 8, 1980 of the marriage of David and Ruby Zellat. The appellee filed a divorce complaint containing a request for custody in Philadelphia Common Pleas Court on July 31, 1981. On September 26, 1983, the mother filed a report of child abuse with the Pennsylvania Department of Public Welfare. The department investigated the report and issued its own report on November 28, 1983 indicating that the child had been abused while in the care of one of the parents. The report did not indicate which parent inflicted the abuse. On October 1, 1983, the child was removed from Philadelphia by her mother and taken to Tennessee, where mother and child continued to live until the time of this appeal. On February 9, 1984, a Tennessee court issued an order restraining the father from any contact with the child. The father appeared before the Tennessee court to contest the restraining order which was subsequently dismissed. By an order dated August 1, 1984, the Tennessee court granted appellant limited visitation rights under the supervision of the Tennessee Department of Human Services pending further review by the court. The Tennessee court reissued the restraining order on October 18, 1984 based on a detailed assessment of the case by a clinical psychologist appointed by the Tennessee Department of Human Services. This order provided for possible future review by the Tennessee court but precluded any contact between appellant and the child.

On July 17, 1984, appellant filed a complaint in the Court of Common Pleas of Philadelphia County for custody, partial custody, or visitation. Appellee filed a petition to dismiss the complaint, alleging that the Pennsylvania court did not have jurisdiction over the custody action and that Tennessee had previously exercised jurisdiction. The trial court dismissed appellant’s complaint following a jurisdictional hearing. This appeal followed.

Appellant raises three issues for our determination: 1) whether the 1981 filing of a complaint for divorce and custody by appellee-wife in Pennsylvania may serve as the basis for the exercise of “home state” jurisdiction by a Pennsylvania court in a subsequent proceeding instituted by appellant-husband to gain custody of a child who has been absent from Pennsylvania for over six months; 2) whether the State of Tennessee is the appropriate forum to decide the issue of child custody; and 3) whether the Tennessee court exercised jurisdiction over the custody proceeding for the purposes of the Uniform Child Custody Jurisdiction Act (UCCJA) by issuing restraining and other orders regarding visitation.

The Uniform Child Custody Jurisdiction Act, 42 Pa.C.S. § 5341 et seq., governs our determination of the issues raised by appellant. The general purposes of the Act mandate:

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

42 Pa.C.S. § 5342(a)(3). See also Aldridge v. Aldridge, 326 Pa.Super. 49, 473 A.2d 602 (1984); Commonwealth ex rel. Earl R.D. v. Linde H.S., 297 Pa.Super. 78, 443 A.2d 307 (1982); Zaubi v. Zaubi, 275 Pa.Super. 294, 418 A.2d 729 (1980).

Section 5344(a) of the Act provides the basis for “home state” and “best interests” jurisdiction over interstate custody disputes:

(a) General rule. — A court of this Commonwealth which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) this Commonwealth:
(i) is the home state of the child at the time of commencement of the proceeding; or
(ii) had been the home state of the child within six months before commencement of the proceeding and the child is absent from this Commonwealth because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this Commonwealth; (2) it is in the best interest of the child that a court of this Commonwealth assume jurisdiction because:
(i) the child and his parents, or the child and at least one contestant, have a significant connection with this Commonwealth; and
(ii) there is available in this Commonwealth substantial evidence concerning the present or future care, protection, training, and personal relationships of the child ...

“Home state” is defined in § 5343 of the Act as “the state in which the child immediately preceding the time involved lived with his parents ... for at least six consecutive months____”

Appellant first contends that the trial court erred in declining to exercise home state jurisdiction. He argues that the trial court mistakenly considered July 17, 1984 as the “commencement of the proceeding” for the purpose of determining the existence of home state jurisdiction under Section 5344(a)(1). Appellant urges that July 31, 1981, the date that appellee filed her complaint for divorce and custody in Pennsylvania, should be the operative date for determining home state jurisdiction.

We do not agree with appellant’s construction of the language in § 5344(a)(1). First, we are guided by the presumption that the legislature does not intend a result that is absurd or unreasonable. 46 Pa.C.S. § 552(1). It would be absurd to construe the words “the proceeding” so as to encompass any and all actions filed in this Commonwealth regardless of their antiquity or dormancy. In the instant case, appellant points to “the proceeding” initiated by another party some three years prior to his own institution of a proceeding designed to secure custody of the child. The record before us does not indicate, and appellant does not argue, that he or anyone else ever pursued or defended appellee’s 1981 action. Appellant is the only party who has initiated a “proceeding” requiring an application of the Act. Second, our holding that the operative event for the purpose of computing the six-month period under § 5344(a) is “the proceeding” initiated by the party urging an exercise of jurisdiction under the Act is further supported by the purpose of the Act itself. This purpose would not be served by construing § 5344(a)(1) so as to confer “home state” jurisdiction upon any state in which a complaint containing a claim for custody happens to have been filed in the years prior to the initiation of a subsequent action requiring the application of the UCCJA. Accordingly, we hold that the “proceeding” from which the six-month period in § 5344(a) is computed, is the proceeding in which jurisdiction is first sought under the provisions of the Act.

The trial court determined that, in any event, Pennsylvania was an inappropriate forum for disposition of the underlying matter. Thus, assuming arguendo that a basis for home state jurisdiction did exist, any error in declining to assume such jurisdiction was harmless. Pennsylvania courts may decline to exercise § 5344(a) jurisdiction based on the doctrine of forum non conveniens even when a basis for an exercise of jurisdiction clearly exists. Aldridge v. Aldridge, 326 Pa.Super. 49, 473 A.2d 602 (1984).

Appellant next contends the trial court erroneously concluded that the Tennessee court had previously exercised jurisdiction over the matter. However, a careful examination of the record reveals that the Tennessee court issued a series of orders culminating in the placement of the child in the exclusive possession and control of the appellee. The Tennessee court order of October 18, 1984 provided for “further hearings” on the matter. Thus, the Tennessee court did exercise its jurisdiction to render a “custody determination” as defined by the Act at § 5343:

Custody determination. A court decision and court orders and instructions providing for the custody of a child, including visitation rights; the term does not include a decision relating to child support or any other monetary obligation of any person.

Appellant also alleges that under the circumstances the child’s best interests would be served by Pennsylvania’s assumption of jurisdiction pursuant to § 5344(a)(2). We do not agree. The trial court based its refusal to assume “best interests” jurisdiction on the following factors:

Nor can we say that it is in the best interests of the child that we assume jurisdiction. At the time of the hearing before this Court in March 1985, mother and child had been residing in Tennessee for more than 17 months. Further, that Court had issued three orders and had at least two hearings (one hearing with the father present or represented by counsel) and continues to maintain jurisdiction of this case. They have appointed the Tennessee Department of Human Services to supervise this matter, have provided for evaluation by the Tennessee Children and Youth Services and have made provisions for further review by their own Court.

Trial court opinion at p. 2.

On the basis of the above factors we agree with the trial court that under all the circumstances, Tennessee was the appropriate forum to decide the issue of child custody. Tennessee qualified as the child’s “home state” at the time appellant filed his complaint because the child had resided there for more than six consecutive months. § 5348(c)(1). It had a close connection with the child and its mother. § 5348(c)(2). Substantial evidence concerning the child’s “care, protection, training and personal relationships” existed in Tennessee including ongoing supervision and a detailed psychological assessment provided by the Tennessee Department of Human Services. § 5348(c)(3). Finally, and most importantly, the exercise of jurisdiction by Pennsylvania would contravene one of the primary purposes of the Act, § 5348(c)(5), see supra § 5344(a)(3).

We affirm the decision of the trial court with respect to its determination that Pennsylvania should not assume jurisdiction and that Tennessee was a more appropriate forum.

Order affirmed.

      . 42 Pa.C.S. § 5348 provides in relevant part:
      (a) General rule. — A court which has jurisdiction under this sub-chapter to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.
      (b) Moving party. — A finding of inconvenient forum may be made upon the court’s own motion or upon motion of a party or a guardian ad litem or other representative of the child.
      (c) Factors to be considered. — In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
      (1) If another state is or recently was the home state of the child.
      (2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants.
      (3) If substantial evidence concerning the present or future care, protection, training, and personal relationships of the child is more readily available in another state.

        (4) If the parties have agreed on another forum which is no less appropriate.
      (5) If the exercise of jurisdiction by a court of this Commonwealth would contravene any of the purposes stated in section 5342 (relating to purposes and construction of sub-chapter).
      (d) Communication with other court. — Before determining whether to decline or retain jurisdiction the court may communicate with a court of another state and exchange information pertinent to the assumption of jurisdiction by either court with a view to assuring that jurisdiction will be exercised by the more appropriate court and that a forum will be available to the parties.
      (e) Disposition. — If the court finds that it is an inconvenient forum and that a court of another state is a more appropriate forum it may dismiss the proceedings, or it may stay the proceedings upon condition that a custody proceeding be promptly commenced in another named state or upon any other conditions which may be just and proper, including the condition that a moving party stipulate his consent and submission to the jurisdiction of the other forum.
      (h) Notice of disposition. — Upon dismissal or stay of proceedings under this section the court shall inform the court found to be the more appropriate forum of this fact, or if the court which would have jurisdiction in the other state is not certainly known, shall transmit the information to the court administrator or other appropriate official of the state for forwarding to the appropriate court.


author: JOHNSON, Judge:

text:
    506 A.2d 951
    In re ESTATE OF Frank S. KAUFFMAN, Deceased. Appeal of Charlynn Jeanne TORRENCE.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1985.
    Decided March 20, 1986.

      Henry C. Herchenroether, Jr., Pittsburgh, for appellant.
    Before BECK, JOHNSON and MONTGOMERY, JJ.
   JOHNSON, Judge:

This case presents the question of whether a person, who was adopted while an adult, qualifies as a “child” of the adopting parent, when construing the will of a testator who is not the adopting parent.

The appellant in this case was 35 years old when she was adopted by Ruth S. Kauffman Torrence [Ruth]. There is nothing in the record indicating that a parent-child relationship existed between Ruth and the appellant either during her minority or majority. Ruth received income for life from a trust established by the will of her father, Frank S. Kauffman. Upon Ruth’s death, the remainder was to go to her children. If she left no children, then it was to be divided among other specified legatees. The Orphans’ Court en banc affirmed the Decree of the auditing judge who held that appellant was not entitled to share in the estate of Frank S. Kauffman. The auditing judge found that, because appellant was adopted as an adult and during her minority had no parent-child relationship with Ruth, appellant was not considered to be the child of Ruth for the purpose of construing Frank S. Kauffman’s will.

Appellant argues that she qualifies as Ruth’s “child” for the purposes of construing the will and should receive the trust remainder. We disagree, and therefore affirm.

In determining the question presented in this case, we look first for any controlling statutory language. Ruth’s father, the testator, died in 1951. The law in effect at the date of death governs the construction of the testator’s will. In re Estate of Linn, 435 Pa. 598, 258 A.2d 645 (1969). More specifically, an adopted child’s rights of inheritance are determined by the statute in effect at the time inheritance becomes effective, i.e., the date of the testator’s death. In re Estate of Tower, 463 Pa. 93, 343 A.2d 671 (1975). In the case under consideration, the statute in effect in 1951 was the Wills Act of 1947, P.L. 89, 20 P.S. § 180.14(6). This statute provided that:

In construing a will making a devise or bequest to a person or persons described by relationship to the testator or to another, any person adopted before the death of the testator shall be considered the child of his adopting parent or parents and not the child of his natural parents: Provided, That if a natural parent shall have married the adopting parent before the testator’s death, the adopted person shall also be considered the child of such natural parent.

Id. Appellant was adopted after the testator’s death. The statute, thus, does not resolve the question.

We now turn to relevant case law. The Pennsylvania Supreme Court has stated:

“It is, of course, a cardinal rule that a will is to be construed according to the intent of the testator.” Hamilton Estate, 454 Pa. 495, 498, 312 A.2d 373, 374 (1973); accord, Blough Estate, 474 Pa. 177, 378 A.2d 276 (1977); Hill Estate, 432 Pa. 269, 247 A.2d 606 (1968). . . . The intent of a testator must appear with reasonable certainty, such that there can be little doubt of his intent. If, from the language of the document, the scheme of distribution, and the relevant facts and circumstances, a court cannot determine a testator’s intent with reasonable certainty, it must resort to canons of construction. E.g., Schappell Estate, 424 Pa. 390, 227 A.2d 651 (1967); Houston Estate, 414 Pa. 579, 201 A.2d 592 (1964).

Estate of Sykes, 477 Pa. 254, 257-58, 383 A.2d 920, 921 (1978) (footnote omitted). In the instant case, the testator’s will does not disclose, with reasonable certainty, his intent as to the inclusion of adult adoptees in the definition of “children”. Neither the language of the will, the scheme of distribution, nor the relevant facts and circumstances help us to ascertain the intent of the testator. Accordingly, we resort to canons of construction to supply the testator’s likely intent. Id.

In Tafel Estate, 449 Pa. 442, 296 A.2d 797 (1972), our supreme court addressed the question of an adoptee’s rights of inheritance. A plurality of the court stated the rule of construction that a court:

presumes that a testator, in the absence of any expressed intention in the will to the contrary, intended to treat adopted children in the same manner as natural children and to include in the testamentary words “child” or “children” an adopted child regardless of the date of his or her adoption.

Id., 449 Pa. at 453-54, 296 A.2d at 803 (emphasis in original).

The court also stated that:

The rule of construction herein announced applies where the adoptee or adoptees at the time of adoption were minors and not adults and does not apply where an adoptee or adoptees was or were adults at the time of adoption. By the restriction of this rule of construction to minor adoptions we serve and effectuate the purpose of preventing an adult adoptee or adoptees from being considered a testamentary “child” or “children” where such adoption is undertaken by a person other than the testator to prevent a gift over in default of a natural “child” or “children” and thus, in effect, rewrite the testator’s will.

Id,., 449 Pa. at 454, 296 A.2d at 803 (citation omitted).

The facts of Tafel involve children adopted during their minority. Also, the Tafel opinion is not a majority opinion; rather, it is a plurality opinion. Thus, Tafel in and of itself does not decide the question before us. Mt. Lebanon v. County Board of Elections, 470 Pa. 317, 368 A.2d 648 (1977).

However, a majority of the Pennsylvania Supreme Court followed the rationale of Tafel in Estate of Sykes, 477 Pa. 254, 383 A.2d 920 (1978). In Sykes, the court applied the canon of construction that, absent an expressed contrary intent, there is a presumption that a testator intends the term “issue” to include children by adoption. Id., 477 Pa. at 260, 383 A.2d at 923. The Sykes court noted that the children involved in the Sykes case were minors when adopted and the court did not determine whether the presumption also applies when an adoption occurs after minority. Id. at n. 4. After Sykes, the law of Pennsylvania is that a court presumes that a testator, absent contrary expressed intent, intends to include children adopted during their minority when he uses the words “issue” and “children”. See, e.g., In re Estate of DeRoy, 481 Pa. 403, 392 A.2d 1355 (1978).

In the recent case In re Estate of Ketcham, 343 Pa.Super. 534, 495 A.2d 594 (1985), this Court had occasion to construe the language of a will as it applies to a person adopted during majority. The Ketcham case involved two adoptees, one adopted in infancy, the other adopted at the age of fifty-six, both of whom wished to share in the distribution from a testamentary trust. The testatrix’s will in Ketcham did not express a clear intent with regard to adopted children. The Court applied the Tafel canon of construction to the adoptee who had been adopted while an infant, and allowed her to share in the trust. Because the woman had been adopted during her minority, she clearly came within the Tafel canon which presumes that absent a contrary intent, children adopted during minority are to be included in the general designation “children”.

However, our Court refused to apply the Tafel canon to the adoptee who had been adopted during majority. We found as a fact that initially, the adopting parent declined to adopt the woman when she learned that the existing law precluded inheritance by adoptees. The Court found that the adoption was only effectuated after the adopting parent learned that a relative’s adopted child would share in the Ketcham trust due to changes in the law. The Court concluded that the sole purpose for the adoption of the woman in her majority was to secure an inheritance. Id., 481 Pa. at 540, 495 A.2d at 597.

There appear to be two main policy considerations upon which these precedents rely and which must guide this Court in deciding the case before us. First, there is the policy that an adopted child should have the same rights as a natural child. This policy is well documented in the adoption statutes of this Commonwealth. The Adoption Act, 23 Pa.C.S. § 2101 et seq., provides, in pertinent part, that when a court enters an adoption decree, the decree shall direct “that the person proposed to be adopted shall have all the rights of a child and heir of the adopting parent or parents and shall be subject to the duties of a child to him or them.” 23 Pa.C.S. § 2902(a). The Tafel court stated that:

Beginning with the first adoption statute of 1855, on eight occasions whenever the legislature has spoken on the effect of an adoption once decreed, the legislature has expressly, specifically and unequivocally mandated that the adopted person “shall have all the rights of a child and heir of” the adoptive parents.

Tafel, 449 Pa. at 447, 296 A.2d 799-800 (footnote omitted) (emphasis in original). This policy of equality is promoted by the inclusion of adoptees within the words “children,” “issue,” etc. See Sykes 477 Pa. at 260, 383 A.2d at 923. See also Buzby Estate, 30 Pa.Fiduc. 5 (Orphans’ Court, Philadelphia, 1979).

The second policy which we must consider is that the court will not allow a legatee to “rewrite” a testator’s will after the testator’s death. This was the rationale behind the exclusion of adult adoptees from the Tafel presumption. Tafel, 449 Pa. at 454, 296 A.2d at 803. See Wyman Trust, 23 Pa.Fiduc. 286, 290 (Orphans’ Court, Montgomery County, 1973). In promoting this policy, courts seek to effectuate the intent of the testator as expressed in the will. When an adoption is effectuated because of a parent-child relationship, then it is logical for the court to presume that when no contrary intent is shown, the testator would have wanted the adopted child included in a legacy or bequest to “children”. In such a case, the adopted person fits the meaning commonly associated with the. word “child,” and is no different from natural siblings except for the biological ties. See Tafel, 449 Pa. 442, 296 A.2d 797 (1972). However, when no parent-child relationship exists, and the adoption is effectuated to secure an inheritance, it would not be logical to presume that the testator would have intended the adop-tee to be included. Accordingly, the court in construing the language of the will will exclude such adult adoptees who had no parent-child relationship from sharing in a legacy or bequest to “children.” E.g., Ketcham, 343 Pa.Super. 534, 495 A.2d 594 (1985).

The record before us does not explain the motives underlying the adoption of appellant at the age of thirty-five. Appellant does not point to any affirmative evidence in the record which would establish that a parent-child relationship existed between Ruth and the appellant during appellant’s minority, or at any time. While we cannot conclude, as in Ketcham, that the sole reason for the adoption was to secure the inheritance, we refuse to extend the Tafel canon to the facts of this case, absent at least some showing that the adoption of appellant during her majority was done for reasons other than an attempt to share in the inheritance.

Of course, a testator may define “children” to include persons adopted during majority who had no parent-child relationship with the adoptive parent; an expression of such an intent will accomplish that result. In the absence of such an expression, however, we refuse to presume such an intent.

We should note that the Probate, Estates and Fiduciaries Code, 20 Pa.C.S. § 101 et seq., while not in effect at the testator’s death and hence inapplicable to the facts of this case, is the statute currently in effect. The Rules of Interpretation under this Code, which would be used to construe a similar will currently probated when no contrary intent appears therein, provides that:

[I]n construing a will making a devise or bequest to a person or persons described by relationship to the testator or to another, any adopted person shall be considered the child of his adopting parent or parents, except that, in construing the will of a testator who is not the adopting parent, an adopted person shall not be considered the child of his adopting parent or parents unless the adoption occurred during the adopted person’s minority or reflected an earlier parent-child relationship that existed during the child’s minority.

20 Pa.C.S. § 2514(7). Similar language appears in the Rules of Interpretation applicable to conveyances at 20 Pa.C.S. § 6114(4).

As we stated above, appellant was not adopted during her minority and the record does not reflect an earlier parent-child relationship between appellant and Ruth existing during appellant’s minority. The will expresses no intent to include appellant in the word “children,” thus the result which we reach in this case, for a testator dying prior to the effective date of the Probate, Estates and Fiduciaries Code, is harmonious with the result which would be reached under the Code.

We recognize that, in dealing with adoption of minors, an adopted child should have the same rights as a natural child. We are also mindful that we may not allow a legatee to “rewrite” a testator’s will after the testator’s death. Here we are faced with the claim of an adult adoptee who was adopted by a seventy-three year old legatee some twenty-four years following the death of the testator. The rule of construction pronounced in Tafel Estate is, therefore, clearly inapplicable.

We hold that without any showing of a parent-child relationship existing during an adoptee’s minority, a person adopted during majority may not be presumptively considered to be a “child” of the adoptive parent when construing the will of a testator who has died and whose will becomes effective prior to the time of the adult adoption.

Accordingly, in construing testator’s will, appellant is not considered to be a “child” of Ruth, and is not entitled to share in the testator’s estate.

Order affirmed.

      . The fourth paragraph of Frank S. Kauffman’s will establishes the trust, the remainder of which is sought by appellant. The paragraph provides:
      FOURTH: If either my daughter Ruth K. Torrence or my sister, Mary Telfair survive me, I give, devise, and bequeath all the rest and remainder of my property and estate, personal and real, hereinafter called my residuary estate, to the Peoples-Pittsburgh Trust Company of Pittsburgh, Pennsylvania IN TRUST HOWEVER, for the following uses and purposes:
      (a) The Trustee shall pay out of the net income arising from my residuary estate, the sum of One Hundred ($100.00) Dollars per month to my sister Mary Telfair, 1266 Michigan Avenue, Bufflao [sic], New York, for a period of five years from the date of my death if she shall so long live, and after said period of five years, shall pay to her the sum of Fifty ($50.) Dollars per month during the remainder of her life, and shall pay to my daughter Ruth K. Torrence, the balance of the said net income for and during the lifetime of the said Ruth K. Torrence, provided however, that should my daughter Ruth K. Torrence pre-decease my sister and leave no children, this trust shall terminate and the principal of my Estate shall be distributed as provided in Paragraph Fourth (e) of this my last Will and Testament.
      (b) Upon the death of my said sister, the entire net income shall be paid to my daughter Ruth K. Torrence, if living, for and during the term of her life.
      (c) Should my said sister Mary Telfair survive my daughter Ruth, and the latter leave children surviving her, the Trustee shall continue the monthly payments to my said sister as provided in Paragraph Fourth (a) herein, during the remainder of the life of my said sister, and shall pay the balance of the net income in equal shares to the child or children of my said daughter Ruth K. Torrence, and on the death of my said sister, the Trustee shall pay the entire net income to the child or children of my said daughter in equal shares during the minority of the said children, and when the youngest of said children shall reach the age of twenty-one (21) years the trust shall then terminate and the entire principal shall be divided equally among the children of my said daughter surviving at the time of her death.
      (d) Upon the death of my said daughter Ruth, she having survived my said sister, the Trustee shall pay the net income in equal shares to her children during their minority, and when the youngest of said children shall reach the age of twenty-one (21) years, the Trust shall terminate and the principal shall be divided equally among the children surviving at the time of my daughter’s death.
      (e) Upon the death of my daughter Ruth, leaving no children surviving her, the entire principal of my said residuary estate shall be divided into Six (6) equal parts and One (1) part to the children of my deceased brother, John Kauffman of Batavia, New York, One (1) part to the children of my deceased brother Nicholas Kauffman of Batavia, New York, One (1) part to the children of my deceased brother Charles Kauffman of Cuba, New York, One (1) part to my brother George Kauffman of Rochester, New York, One (1) part to my sister Mary Telfair of Buffalo, New York, and One (1) part to my sister-in-law Mrs. Mabel Daniels of Lakewood, Ohio. Should the aforesaid George Kauffman, Mary Telfair, or Mabel Daniels pre-de-cease me, or pre-decease my daughter Ruth, the share of such person shall go to his or her children surviving at the time of my death.
      (f) The Trustee shall have authority to pay to my said daughter, Ruth K. Torrence, or to expend on her behalf, such sum or sums from the principal of my residuary estate, as in the opinion of the Trustee may be required to relieve emergency or distress, and provide for her proper support, provided however, that no payment shall be made to my said daughter or for, or on her account, from the principal of my residuary estate in excess of $1200.00 in any one year.
      (g) I appoint the Trustee herein named to be Trustee in the nature of a Guardian for all minor persons who may participate in the distribution of the principal or my residuary estate, and I authorize it, in that capacity, to apply to the maintenance and education of each such minor person so much of the income arising from and of the principal of his or her distributive portion as it may consider proper and, in the management thereof, to exercise all the powers, authority, and discretion set forth in the FIFTH article of this my WILL.
      (h) The beneficiaries hereunder shall have no right to anticipate, pledge, or in any manner alienate their interest in the income arising from or in the principal of my residuary estate, and their interests shall not be liable for their debts, contracts or engagements, or subject to execution, attachment, sequestration or other legal process.
      Ruth survived the testator’s sister, Mary Telfair. The appellant argues that she should receive the remainder as provided in subsection (d).


author: OLSZEWSKI, Judge:

text:
    506 A.2d 1310
    David G. PAVELIC and Anne Marie Pavelic, His Wife, and Bette Rubin Weinberger, ACSW, and All Those Similarly Situated, Appellants, v. NATIONWIDE INSURANCE, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 16, 1985.
    Filed Feb. 14, 1986.
    Reargument Denied April 22, 1986.

      Neil J. Rovner, Harrisburg, for appellants.
    Stephen A. Moore, Harrisburg, for appellee.
    Before WIEAND, OLSZEWSKI and WATKINS, JJ.
   OLSZEWSKI, Judge:

This matter comes before this court on appeal from an order of the lower court granting appellee’s Motion for Judgment on the Pleadings and holding that appellants were not entitled to reimbursement for counseling services provided by a social worker. Appellants contend that the No-Fault Act should not prevent an insurer from paying for rehabilitation services provided by a social worker who is not obligated to fulfill any state accreditation or licensing requirements. We disagree.

Appellant David Pavelic was involved in a fatal automobile accident in which his close personal friend had been killed. Pavelic was twenty-four years old at the time of the accident and suffered severe hip injuries as well as emotional trauma. As a result of the accident, Mr. Pavelic and his wife sought psychological counseling from Bette Wein-berger, a social worker and counselor. Appellants sought reimbursement for these counseling services under the Pennsylvania No-Fault Act, but the insurer refused payment. First, they contended that Mrs. Weinberger was not a licensed practitioner and therefore was not entitled to reimbursement under the No-Fault Act. Second, they argued that Mrs. Pavelic was not injured in the accident and therefore was not entitled to reimbursement for her rehabilitation expenses. Consequently, appellants filed a class action suit on behalf of similarly situated emotionally and sociologically traumatized accident victims and their sociological counselors. The lower court concluded that under the applicable section of the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 Pa.C.S.A. Sec. 1009.103 (Purdon 1984-85 supp.) (now repealed) which defines compensable medical and vocational rehabilitative services as “services necessary to reduce disability and to restore the physical, psychological, social and vocational functioning of a victim,” the appellants’ treatments for emotional trauma would be included. Nevertheless, the court found that regardless of whether the social worker was or was not required to be accredited by the state, an insurer is only obligated to provide coverage for those treatments conducted through an accredited facility. Thus, the court concluded that appel-lee was not obligated to bear the costs. We agree with this result.

It is noteworthy that this is a case of first impression before this court. The dilemma confronting us gravitates around the legislative intent of the following section of the Pennsylvania No-Fault Motor Vehicle Insurance Act.

MEDICAL AND VOCATIONAL REHABILITATION SERVICES means services necessary to reduce disability and to restore the physical, psychological, social, and vocational functioning of a victim. Such services may include, but are not limited to, medical care, diagnostic and evaluation procedures, physical and occupational therapy, other necessary therapies, speech pathology and audiology, optometric services, nursing care under the supervision of a registered nurse, medical social services, vocational rehabilitation and training services, occupational licenses and tools, and transportation where necessary to secure medical and vocational rehabilitation services. A basic loss obligor is not obligated to provide basic loss benefits for allowable expense for medical and vocational rehabilitation services unless the facility in which or through which such services are provided has been accredited by the Department of Health, the equivalent governmental agency responsible for health programs, or the accrediting designee for such department or agency of the state in which such services are provided, as being in accordance with applicable requirements and regulations.

40 Pa.C.S.A. Sec. 1009.103 (Purdon 1984-85 supp.) (now repealed) (emphasis added).

Appellants argue that the legislators intended the No-Fault Act to provide the victim with a wide range and choice of services except where the service is governed by state law or an accredited agency. In that instance, the service provider must act in accordance with state law. Appellants urge us to narrowly construe the sentence emphasized above and to strictly impose state standards against those service providers who are required to be accredited by the state. But, where no accreditation requirements are imposed, as in the case before us, then this court should determine on a case-by-case basis: (1) whether the services for which reimbursement are claimed are in fact medical and rehabilitative services; and (2) whether the services are reasonable and necessary.

Appellee argues that it is not obligated to reimburse appellants under the No-Fault Act since the “provider” of the rehabilitation services was neither accredited nor licensed by the Commonwealth to provide such services. We agree with appellee’s argument, however, we have serious reservations about the consequences of this interpretation.

Without a doubt, the No-Fault legislation was intended to provide for “a Statewide system of prompt and adequate basic loss benefits to the victims of motor vehicle accidents and to the survivors of the deceased victims.” See 40 Pa.C.S.A. Sec. 1009.102(b) (Purdon 1984-85 supp.) (now repealed). In addition, the Act strongly emphasized the rehabilitation of accident victims. See 40 Pa.C.S.A. Sec. 1009.102(a)(9)(B). See Shrager & Applebaum, The Pennsylvania No-Fault Motor Vehicle Insurance Act: Constitutional Analysis, 48 Temple L.Q. 475, 476 (1975). Yet, despite the spirit of the Act, we must conclude that the insurer was not obligated to provide reimbursement in this situation.

Our Supreme Court recently stated that “courts should not disturb the plain meaning of statutory language by resorting to the rules of statutory construction. The principles of statutory construction are only an aid in determining legislative intent and will not be permitted to change the clear meaning of legislative mandate.” Philadelphia Housing Authority v. Commonwealth of Pennsylvania Labor Relations Board, 508 Pa. 576, 581, 499 A.2d 294, 297 (1985) (Nix, C.J.). Consequently, if the language of the statute is clear, it may not be disregarded under the guise of presumed legislative intent. Causer v. Mandarino, 338 Pa.Super. 564, 569, 488 A.2d 36, 39 (1985).

It is unfortunate, as appellee contends, that the legislature, whether guided by intent or neglect, has chosen to exclude a certain class of service providers from coverage under this section of the No-Fault Act. Clearly this is not a case in which the service provider has failed to meet accreditation or licensing requirements. As we realize today, certain professions do not have to fulfill similar responsibilities. Consequently, in some instances, victims may have to forego treatment from such individuals/facilities or incur the expense of such treatment themselves. While it is true that the legislature may not have envisioned the situation confronting this court today, we are nevertheless bound to interpret the law and not to legislate.

Order affirmed.