text:
    506 A.2d 393
    Samuel RAPPAPORT, Appellant, v. Elias H. STEIN and Leon Silverman and Theodore Snyder. Elias H. STEIN & Leon W. Silverman and Samuel Rappaport Investments v. Samuel RAPPAPORT, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1985.
    Filed Dec. 30, 1985.

      Jerome J. Verlin and Alan C. Kauffman, Philadelphia, for appellant (at No. 275).
    Jerome J. Verlin and Charles V. Stoelker, Jr., Philadelphia, for appellant (at No. 380).
    Charles V. Stoelker, Jr., Philadelphia, for Stein, appellees (at No. 275).
    David H. Weinstein, Philadelphia, for appellees (at No. 380).
    Jeffrey B. Albert, Philadelphia, for Snyder, appellee (at No. 275).
    Before SPAETH, President Judge, and HOFFMAN and HESTER, JJ.
   HESTER, Judge:

In these consolidated appeals, we review two orders in the dissolution of a series of real estate investment partnerships. The first appeal is from an interlocutory order appointing a real estate management firm to manage investment properties owned by the parties. We do not reach the issue of whether the appointment improperly created a receivership, as the appeal was taken from a nonappealable order. The second appeal, in a related action to quiet title, challenges a decree which stated that appellant holds certain property in trust for the benefit of the partnership despite his acquisition of it at a bankruptcy sale “free and clear of all encumbrances.” We affirm the trial court in the second case.

No. 275 Philadelphia, 1985

This is an appeal from an interlocutory order appointing a real estate management firm, Lanard & Axilbund, to manage investment properties owned by the parties’ investment partnership. The factual background is as follows.

Beginning in 1973, appellant Rappaport entered into a series of partnership agreements with Stein, Silverman and Snyder, appellees, for the purpose of purchasing real estate for investment. Appellant is an experienced real estate investor and property manager; appellees are attorneys and businessmen.

From the beginning, appellant was the moving force behind the real estate activities of all of the partnerships. He negotiated purchases, sales and leases, managed properties, provided for maintenance, restoration and repair of the properties, and advanced large sums of money to operate the enterprises. Appellees failed to make substantial monetary contributions or to participate in management. By 1979, the parties argued over their various roles in the enterprises, and the partnerships were effectively dissolved as of October, 1979.

Appellant filed this action to wind up the affairs of the partnerships since the acrimony between the partners prevented an amicable termination. The parties have not yet finished accounting for the dealings of the partnerships and terminating the enterprises.

On January 28, 1985, the trial judge entered an order removing appellant from his de facto position as the manager of all the properties of the partnerships:

' AND NOW, this 28th day of January, 1985, the Court enters an interlocutory Order appointing the firm of Lanard & Axilbund to manage the properties held by the entities involved in this litigation commencing February 1, 1985. Lanard & Axilbund shall have the authority to collect rents, make ordinary repairs, pay taxes, insurance, utility bills and other routine and ordinary expenses, rent properties as vacancies occur, and perform all the routine and customary functions of a real estate management firm pending further Orders of this Court; provided, however, that Lanard & Axilbund has no authority to sell or encumber the properties, to use assets of the entities for purchase of other properties or to enter into contracts for extensive renovation or alteration of the properties.

The appeal is from this order.

Two issues are presented. Appellees argue that this court has no jurisdiction to review this matter, since the order constitutes a nonappealable interlocutory order. The substantive issue is appellant’s claim that the January 28, 1985 appointment created a receivership, which was improper for a variety of reasons.

Appellees correctly assert that the order in question is interlocutory, and that such orders are normally nonappealable. Appellant claims that our jurisdiction is founded on Pa.R.A.P. 311, Interlocutory Appeals as of Right. Rule 311(a)(2) states that “an appeal may be taken as of right from ... [a]n order confirming, modifying or dissolving or refusing to confirm, modify or dissolve an attachment, custodianship, receivership or similar matter affecting the possession or control of property.”

We hold that the order in question does not satisfy the jurisdictional requirements of Pa.R.A.P. 311(a)(2); it does not relate to “an attachment, custodianship, receivership or similar matter affecting the possession or control of property.” The real estate firm was empowered to collect rents and perform routine management functions but was barred from selling, encumbering or renovating the properties. This limited management function is not the “possession or control of property” which justifies an exception to the nonappealability of interlocutory orders. We therefore quash the appeal for lack of jurisdiction.

No. 380 Philadelphia, 1985

Among the partnerships discussed in the companion case is one named Samuel Rappaport Investments (SRI), in which appellant holds a fifty percent interest and appellees Stein and Silverman twenty-five percent each. This is an appeal from the final order in appellees’ action to quiet title to certain real estate of SRI, including the Philadelphia Athletic Club (PAC). The trial court held that despite a bankruptcy court sale to appellant free and clear of all encumbrances, appellant holds the property in trust for the benefit of the partnership.

SRI purchased PAC and two other parcels of Philadelphia investment property in 1973, prior to the acrimonious dissolution of the partnership in 1979. Subsequent business conditions, deterioration of the property and cash flow problems led managing partner, appellant Rappaport, to file for Chapter 11 reorganization in bankruptcy on behalf of PAC. He did so in order to oust appellee partners from their interest in PAC. The bankruptcy court appointed a trustee for the property, who held an auction but refused to sell to appellant, the highest bidder, at $700,000 because the price was too low. Appellees also attended the auction but did not bid. Later the same day, the trustee sold the property privately to appellant for approximately $1,000,-000, a figure calculated to satisfy the mortgages and pay certain administrative expenses. After objection by appellees, the bankruptcy court held a hearing, then confirmed the sale, awarding title to appellant.

Appellees sought to quiet title, claiming a continuing equitable interest in the property despite the bankruptcy sale. Appellant was able to sell the PAC property for $3,600,000 with the approval of the trial court, pending the outcome of the action to quiet title which would determine ownership of the proceeds of sale. The trial court held:

The use of [bankruptcy proceedings] to divest [appellees] of their rightful interest in partnership property constituted a blatant breach of trust. The purchase of the property from the Trustee was simply another act in the scheme to obtain the premises for the sole benefit of [appellant]. A court of equity cannot sanction such behavior.

Slip opinion at 9. The court reached the following conclusion of law: “Defendant hold[s] the proceeds from the sale of said premises and the other parcels purchased from the trustee in bankruptcy in trust for the benefit of the partnership.” Id. at 14.

There are two issues, and again, the first concerns the appealability of the decree under review. The trial court’s opinion and order do not technically dispose of all outstanding motions. Its final conclusion of law, however, seems intended to dispose of this matter in its entirety, with any remaining details to be disposed of during final disposition of the companion case. The trial court’s conclusion is as follows:

8) The final decree in the companion case will award to [appellees] their proportionate shares of the net proceeds of the sale of the premises to the third party and any revenues received from the other parcels of real estate that are the subject of this litigation less any advances made by [appellant] for the benefit of all the properties including the purchase price paid by [appellant] at the sale by the Trustee with interest at the rate prescribed in the companion case from the dates of such payments.
[Appellant’s] post-trial motions are denied.

Slip opinion at 15. Thus, it seems clear that the court regarded this disposition to be final insofar as the action to quiet title is concerned.

A final order is one which “either ends the litigation or disposes of the entire case.” Gray v. State Farm Insurance Co., 328 Pa.Super. 532, 537, 477 A.2d 868, 871 (1984). “In determining what constitutes a final order we look to a practical rather than technical construction of the order.” Marron’s Woodstove and Fireplace Center, Inc. v. Alaska Co., Inc., 326 Pa.Super. 471, 474, 474 A.2d 337, 338-39 (1984).

Steel v. Weisberg, 347 Pa.Super. 106, 108, 500 A.2d 428, 429-30 (1985). In practical effect, the decree under review disposes of the entire matter regarding title to the SRI properties, and the court made a final disposition of the parties’ claims to ownership. That a final accounting has been deferred until the conclusion of the companion case does not affect the appealability of this decree. Clearly, the determination that appellees have an equitable claim to the SRI properties purchased by appellant at the bankruptcy sale will not be reviewable when the companion case is terminated. The court prudently deferred the accounting until liquidation of all the properties in the companion case, despite final disposition of the question of title in this case. We therefore hold that this appeal is properly before us.

The substantive issue is whether it was error to conclude that appellant held the real estate purchased from the trustee in bankruptcy for the benefit of the partnership. Appellant argues that a line of Pennsylvania Supreme Court cases, beginning with Fisk v. Sarber, 6 Pa. (W. & S.) 18 (1843), allows a fiduciary to purchase real estate of a trust beneficiary with his own money at a judicial sale brought about by actions of a third party, free from all equitable interest of the trust beneficiary.

Appellant argues that many of the facts found by the trial court support the application of the Fisk v. Sarber rule. The bankruptcy court found the price for the PAC property to be fair to all parties concerned and granted title to appellant “free and clear of all liens and encumbrances.” There is no evidence that appellant permitted the property to deteriorate so he could buy it at a depressed price; in fact, appellees refused to make their proportionate contributions necessary to maintain the property. There was no fraud or concealment in the conduct of the partners with respect to each other. All were wary of each other. All had an opportunity to bid on the property and were present at the auction. Appellant was not acting as an agent for SRI when he purchased the property from the trustee in bankruptcy.

Appellees counter with the argument that the sale of the property was not brought about solely through the actions of a third party, namely, the mortgagee, as appellant contends. They note that appellant filed the petition for reorganization in bankruptcy court; the court found that he did so with the specific purpose of eliminating appellees’ interest in the property. Appellant was in control until a trustee was appointed at appellees’ request, and the need to sell the property was due at least in part to actions taken by appellant prior to appointment of a trustee.

The court held that appellant’s purchase in the bankruptcy sale did not alter the partners' relationship, nor affect their rights in the property inter sese.

It has long been the law in Pennsylvania that where several persons own a joint or common interest in real estate, one of them cannot purchase an encumbrance or an outstanding title and set it up against the other owners for the purpose of depriving them of their interests. If a tenant in common purchases title to the property at a tax or other judicial sale, such purchase inures to the benefit of all of the cotenants____ Under such circumstances, the purchaser holds the title as trustee for his cotenants____ This is so because tenants in common stand in a confidential relationship to each other with respect to the common property. In making a purchase of an outstanding title or interest, one cotenant is presumed to act for all.

Lund v. Heinrich, 410 Pa. 341, 344-45, 189 A.2d 581, 583 (1963) (citations omitted) (emphasis deleted). Truver v. Kennedy, 425 Pa. 294, 302, 229 A.2d 468, 472 (1967). We agree that these principles are applicable in this case.

We believe that Lund, supra, is more applicable to the case under review than Fisk v. Sarber, supra, and its progeny. Fisk is distinguishable in several respects: the fiduciary who purchased the property had absolutely nothing to do with bringing about the judicial sale, Fisk, supra, at 21; he had no other assets available with which to satisfy the indebtedness on the property, id.; and he purchased the property for a price higher than fair market value, id. at 19, 21. As we have stated, the trial court found that appellant Rappaport placed the PAC property in bankruptcy for the express purpose of divesting his partners of their interest in the property. Having done so, it is true, he exercised no further influence in bringing about the bankruptcy sale, but it is not true that his hands were clean in view of his purpose in initiating the bankruptcy proceeding. Unlike Fisk, the partnerships in this case which are the beneficiaries of appellant’s fiduciary responsibilities did have other assets with which to satisfy the PAC indebtedness prior to the bankruptcy. But for appellant’s bankruptcy petition, which had the effect of isolating the PAC property from the partners’ other assets, other partnership property could have been applied to the mortgage so the partners could have retained the valuable PAC property. Finally, it is evident that the PAC property was sold to appellant for a fraction of its true value. Within the context of the bankruptcy, wherein the trustee’s duty ended when the property realized enough money to satisfy the mortgage, appellant’s purchase price was “fair.” Vis-a-vis appellant’s partners, however, the price was not fair. The most fundamental principles of equity distinguish appellant’s actions from those of the Fisk fiduciary. Accordingly, we hold that the trial court correctly followed Lund rather than Fisk.

Appellant also contends that the decision imposing an equitable limitation on the title obtained in the bankruptcy sale violates the supremacy clause of the United States Constitution. This argument is frivolous. The bankruptcy court never purported to determine the rights and obligations of the several partners of SRI. The bankruptcy judge expressly recognized that the state court would later determine the interests of the various partners among themselves. Reproduced record at 257a. There is no question that the trial court was correct in its analysis of this claim:

The Bankruptcy Court is a court of limited jurisdiction. It dealt with the corporation and its properties____ The Bankruptcy Court did not consider the rights of the partnership or the rights of the partners inter se se. [sic] Indeed, such issues were beyond its jurisdiction.

Slip opinion at 9-10.

We find no error in imposition of a constructive trust on appellant’s title to the property obtained in the bankruptcy court. Accordingly, we affirm the decree of the trial court.

      . Appellees also urge us to quash the appeals because appellant violated Pa.R.A.P. 2154 by failing to designate the contents of the reproduced record and to allow appellees to designate additional parts of the record necessary for the court’s review. We find it unnecessary to enter sanctions in these cases as the reproduced record sufficiently informs the court of the essence of the disputes. We remind the parties, however, that the rules are mandatory, not directory, and that in appropriate cases we will not hesitate to impose sanctions, including the draconian remedy of dismissing the appeal. See, e.g., Pa.R. A.P. 2188.


source: Caselaw Access Project

author: ROWLEY, Judge:

license: Public Domain

text:
    506 A.2d 398
    In re ESTATE OF Robert P. FIKE, Deceased. Appeal of Marlene Fike DUNN.
    Superior Court of Pennsylvania.
    Argued May 14, 1985.
    Filed Jan. 31, 1986.
    Reargument Denied April 3, 1986.

      Harry Polikoff, Philadelphia, for appellee.
    Before SPAETH, President Judge, and ROWLEY and WIEAND, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

Robert P. Fike, the decedent, died on January 21, 1978. He was survived by his widow, Ruth N. Fike, and his daughter, Marlene Fike Dunn (Appellant). Mrs. Dunn is the decedent’s daughter by a prior marriage.

In his will, executed in 1973, decedent, after leaving his tangible personal property to his widow, established a marital trust, designated as Fund A, for his wife’s welfare and comfortable support. The residue of his estate he left in trust, designated as Fund B, to be divided into two separate equal trusts, one for his widow and one for his daughter. The decedent designated his widow and Gallatin National Bank as co-trustees of the trusts established by his will and appointed his brother, Louis S. Fike, Executor of his estate.

In March, 1982, the Executor filed his second and partial account, together with a schedule of proposed distribution. Objections were filed by decedent’s daughter, Mrs. Dunn. On July 14, 1983, the trial court filed an adjudication and decree nisi disposing of the objections. Mrs. Dunn then filed exceptions to the trial court’s adjudication and decree nisi. On April 30, 1984, the trial court filed an opinion and “final decree” disposing of Mrs. Dunn’s exceptions. Mrs. Dunn’s appeal from the trial court's “final decree” is now before us for disposition. In considering appellant’s arguments, we note that it is a cardinal rule in the construction of a will that the intention of the testator shall govern, whenever that intention is clearly manifested, and is not in conflict with established principles of law. Thompson’s Estate, 229 Pa. 542, 79 A. 173 (1911). Additionally, we note that our scope of review on appeal from a decree entered by the Orphans’ Court is extremely limited; we will modify a decree only if it is not supported by competent or adequate evidence, if an error of law has been committed, or if the trial court abused its discretion. Fulkroad v. Ofak, 317 Pa.Super. 200, 463 A.2d 1155 (1983). With these polestars before us, we turn to the arguments advanced by the parties.

I.

Appellant’s first claim is that the Executor’s proposed distribution, approved by the trial court, will result in an over-funding of the marital trust. She advances two arguments in support of this claim.

A.

According to the inventory and appraisement as filed by the Executor, the decedent’s personal and real estate were valued at $1,584,580.91. The principal asset of the estate was a “purchase money promissory note” dated January 20, 1978 (the day preceding decedent’s death) from Pyah Industries, Inc. [hereinafter Pyah] on which the balance due was listed as $1,327,181.00. In addition to the note, the Executor listed as an asset of the estate a certified check from Pyah to the decedent in the amount of $182,500.00.

According to the account, the estate assets had appreciated in the amount of $188,805.62 from the date of decedent’s death to the date the account was stated. The Executor proposed distributing 58.4938% of the appreciation, that is, $110,439.58 to the marital trust (Fund A) and the balance of the appreciation, being 41.5062% or $78,366.04, to the residuary trust known as Fund B. Appellant’s first argument is that the trial court erred in approving the distribution of any portion of the appreciation of the estate assets to the marital trust. She contends that Fund B is entitled to the entire increase in value.

The decedent established the marital trust in paragraph “THIRD” of his will which reads as follows:

THIRD: If my wife, RUTH N. FIKE, survives me, I give to my wife and GALLATIN NATIONAL BANK, to hold IN TRUST as
FUND A
a portion of my estate having a value equal to one-half (V2) of the value of my adjusted gross estate as finally determined for Federal estate tax purposes, less the value for such purpose of all items in my gross estate, passing to my wife otherwise than under this Article of my Will and qualifying for the marital deduction and less any proceeds of insurance on my life received by the Trustees and allocated to this Fund A. My Executor shall allocate assets to this portion in kind at its value as finally determined for Federal estate tax purposes in my estate, but shall so select them that the total property, including cash, allocated to Fund A will have an aggregate market value fairly representative of the net appreciation or depreciation, to the date or dates of distribution, in the market value of all property available for such purpose. There shall be excluded from the portion of any property or the proceeds of any property which does not qualify for the marital deduction or as to which a foreign death tax credit is available or which is considered income in respect of a decedent. If my wife and I die under such circumstances that there is no sufficient evidence that we have died otherwise than simultaneously, it shall be conclusively presumed that she survived me. [Emphasis added.]

The parties agree that the marital trust share calculated in accordance with the first sentence of paragraph “THIRD” and prior to any allowance for appreciation is $706,204.99. Appellant argues that the formula utilized by the decedent in establishing the marital trust constituted a pecuniary bequest and is not a fractional share formula. It is argued that since the formula utilized was a pecuniary bequest “the amount distributed to the Trustee at the date of distribution must be $706,204.99 including the values of any assets in kind at the date of distribution.” (Emphasis added.) She argues that the decedent did not intend that the marital trust would receive, at the date of distribution, assets having a total aggregate value in excess of $706,-204.99.

Appellant, in support of her argument, quotes from the discussion contained in the July, 1983 issue of “Estate Planning Studies” (Merrill Anderson Company, Inc., West Port, Ct.). Appellant quotes a portion of the discussion which points out that under the “date of distribution value” pecuniary formula the marital trust “won’t benefit from asset appreciation, but won’t suffer from depreciation.” However, the authors of the article have made it clear that there are currently at least three different types of pecuniary formulas available to the testator seeking to establish a marital trust. In addition to the “date of distribution value” pecuniary formula, there is a “minimum worth pecuniary formula” and what is known or referred to as a “64 — 19” pecuniary formula. It is obvious that it is the latter formula that was utilized by the testator in this case. The author of the study, in explaining the “64 — 19” formula, stated that “assets allocated to the marital trust must be ‘fairly representative’ of the appreciation or depreciation of the assets available for funding.” The author goes on to state that “all assets must be revalued as distributions are made to assure participation of the marital share in value appreciation or depreciation.”

Appellant also relies on the decision of the Supreme Court of Pennsylvania in Althouse Estate, 404 Pa. 412, 172 A.2d 146 (1961). In Althouse, the Supreme Court had before it an issue very similar to the one before us in this case. In Althouse, the beneficiary of the residuary trust contended that the will provision which created the marital trust was in the nature of a pecuniary gift in which case the increased value of the estate assets would be distributed in their entirety to the residuary trust. The appellees, on the other hand, contended that the testator had, in establishing the marital trust, made a gift of a fractional portion of his entire estate and therefore it was entitled to share in the appreciation of estate assets. The Court concluded that the formula utilized by the testator in that case was a pecuniary gift and that the marital trust was therefore not entitled to any portion of the increase in value. We find, however, that the decision in Althouse is distinguishable. Initally, the Supreme Court made it clear that it was not establishing a mechanical solution to the issue presented. The Court emphasized that the controlling factor in that case, as well as in all such cases, was the general rule that the testator’s intent, if not unlawful, is to prevail. The Court said “[w]e believe that the testator was clearly attempting and in tending to take full advantage of the maximum marital deduction and to give all such (presently) tax exempt property to his trust for his wife known as Trust A; ---- We are convinced that this was his dominant intent. ” It is the expression of intent contained in Mr. Fike’s will that distinguishes this case from Althouse. Here, as noted, the testator specifically directed that assets should be allocated to the marital trust so that they would “have an aggregate market value fairly representative of the net appreciation or depreciation, to the date or dates of distribution, in the market value of all property available for such purpose.” There is no such provision, or anything remotely resembling it, contained in the will being construed in Althouse’s Estate. Finally, it is to be noted that Althouse was decided in 1961, more than twenty-four years ago. The Court, at that time, recognized the perplexities inherent in the attempt to obtain the maximum allowable deduction, as well as the reality of constant revision, being undertaken by practitioners to achieve the desired goals. Since then, as already noted, at least three types of pecuniary formulas have come to be recognized and given effect. One of those, as utilized in Mr. Fike’s will, provides for a sharing by the marital trust of an appreciation (or depreciation) in the value of the estate’s assets. Therefore, the decision in Althouse is not contrary to our decision in this case and does not mandate a different result in light of the express provisions in Mr. Fike’s will.

The trial court, in concluding that the marital trust was entitled to a share of the appreciation of the estate assets, relied on the second sentence of paragraph third and concluded that the decedent’s intent was clear and “whatever Fund A is technically termed, it is to share in any appreciation of assets used as property in kind. The argument as to the nature of the formula for funding the trust is a battle over semantics. The real issue is the testator’s intent and the will language is clear that properties used to establish Fund A are to be representative of any net appreciation or depreciation.” With this conclusion, we agree. It is difficult to imagine a clearer statement of the decedent’s intent than the direction to his Executor that the assets allocated to the marital trust shall “have an aggregate market value fairly representative of the net appreciation or depreciation, to the date or dates of distribution, in the market value of all property available for such purpose.” (Emphasis added.)

B.

The appellant also argues that the Executor over-funded the marital trust by distributing to it proceeds of the Pyah note. The parties agree that any capital gain on the Pyah note constitutes “income in respect of a decedent” as that phrase is defined in the Internal Revenue Code. Appellant argues that, in addition to the capital gain, interest paid to the estate on the Pyah note is likewise income in respect of a decedent. Appellant argues that the testator, by the third sentence in paragraph third of his will, excluded from the marital trust all income in respect of a decedent. This argument was not addressed by the trial court. Counsel for the Executor argues that the clause excluding income in respect of a decedent is inapplicable because, under the circumstances in this case, it is contrary to the clearly expressed intent of the testator.

Initially, we note that the sentence as contained in decedent’s will appears to be incomplete. It appears that there is a word or phrase omitted from the sentence either after the words “excluded from” or after the words “portion of”. The parties appear to recognize that the sentence is incomplete because they would insert the word “marital” immediately preceding the word “portion”. Careful examination of the sentence indicates that three types of property are to be excluded from some unspecified or undesignated subject matter. They are: (1) property which does not qualify for the marital deduction, (2) property as to which a foreign death tax credit is available, or (3) property which is considered income in respect of a decedent. The will, as executed by the testator, does not state from what the three types of property or proceeds of property are to be excluded.

Secondly, it is critical to bear in mind that in construing the will we are to attempt to carry out, insofar as possible, the testator’s intent. In reviewing this will, in its entirety, two goals clearly emerge. First, the decedent intended to provide for his wife’s health, comfortable support, maintenance and welfare. This was his primary objective. After awarding his widow his tangible personal property, the decedent, in a separate paragraph, established the marital trust for his wife. He also named her as a beneficiary of one-half (V2) of his residuary trust. Thus, his concern that his widow be well cared for cannot be disputed.

The other goal that is clear in reading the will is that the testator desired, insofar as it could be done consistently with his first goal, to minimize his death taxes. The provision for a marital trust in itself is evidence of that. In addition, in paragraph seventh, he specifically directed his Executor to take such action as was necessary to achieve an overall reduction in the income and death taxes. Both of these goals, particularly the first, would be frustrated if appellant’s interpretation of the will were to be adopted and income in respect of a decedent were excluded from the marital trust.

Obviously, the proceeds of the Pyah note are the bulk of the decedent’s estate. The note represented the sale price of the decedent’s one-half (V2) interest in the Fike Dairy Corporation, which he owned with his brother Louis. The sale of the decedent’s interest took place the day preceding his death. By that sale and his death the following day, his interest in the dairy farm was converted from a principal investment into income in respect of a decedent. The transformation occurred some four to five years after decedent’s will was executed.

Under appellant’s interpretation of the will, the proceeds of the Pyah note would necessarily be excluded from the marital trust and would, consequently, virtually eliminate the trust in its entirety. As already pointed out, the total estate according to the inventory and appraisement was slightly in excess of $1,584,000.00. According to appellant’s calculations, the principal amount of the note that would qualify as income in respect of a decedent is in excess of $1,300,000.00. Yet the parties agree that the value of the marital trust to be funded, according to the formula established in decedent’s will, is in excess of $706,000.00. Therefore, in view of the fact that the third sentence, as construed by appellant is itself ambiguous, that the transformation of the decedent’s principal asset occurred the day preceding his death, that his will containing the sentence was executed some four to five years earlier, that appellant’s interpretation of the will would have a disastrous effect on the marital trust, and that decedent clearly expressed his intent to provide for his wife’s care and comfort, we hold that the trial court did not err in approving the Executor’s proposed distribution to Fund A.

II.

Next, appellant argues that the trial court erred in apportioning the income earned during the administration of the estate between decedent’s widow, as beneficiary of the marital trust (Fund A), and the beneficiaries of the residuary trust (Fund B). Appellant contends, based on 20 Pa.C.S. § 3543(a) that Mrs. Fike, as beneficiary of the marital trust, is only entitled to interest at the rate of 3% per annum on the amount to be distributed to the marital trust rather than a proportionate share of the total income earned by the estate. Appellant further argues that pursuant to 20 Pa.C.S. § 3543(d) the income earned from the estate during its administration is payable in its entirety to the income beneficiaries of the trusts created in the residuary estate. The Executor, however, argues that subsections (a) and (d) of § 3543 are subject to the provision in subsection (g) and thus to any contrary provisions of decedent’s will. He contends that in paragraph six of the will the testator gave his Executor “the same broad powers ... as are granted to my trustees”, and that those powers include the direction to pay the income on both the marital and residuary trusts to the beneficiaries. However, this argument disregards the language in paragraph six that specifically designates the broad powers as being those “of retention, sale, conversion, investment and management” of the decedent's estate.

The trial court in ruling on this issue concluded, however, that the testator’s intent was to provide comfortably for his widow “whether the proceeds be from the marital trust or from income earned during the administration of the estate.” While we agree that that was decedent’s intent, we do not agree that his will contains any provision that is contrary to § 3543(a) and (d).

Recently a panel of this Court was required, under similar circumstances, to apply the same rules relating to trusts that are applicable to decedents’ estates in § 3543. Matter of Trust B under Charles F. Passmore, 332 Pa.Super. 584, 481 A.2d 943 (1984). In Passmore, the appellant, a beneficiary under Trust B claimed that it was entitled to a pro rata share of the income earned during the trust administration rather than a fixed percentage of interest at the rate of 3% and 5%. However, this Court, after carefully reviewing the agreement of trust, concluded that the gift in Trust B to the appellant was a “pecuniary gift” and therefore the appellant was only entitled to the fixed rate of interest rather than a pro rata share of the income earned.

There are, naturally, differences between the trust agreement in Passmore and the will in this case. However, we do not find them to be substantial or controlling. The parties here agree that the marital trust was established pursuant to a “pecuniary” formula. Furthermore, there is no clear expression or indication in the will that the testator intended a result contrary to subsections (a) and (d) of § 3543. Therefore, we conclude that the trial court erred in approving the allocation of a pro rata share of income earned during the administration of the estate to the widow as beneficiary of the marital trust.

in.

Appellant’s final issue concerns the distribution of income and principal allocated to the residuary trust, Fund B, between herself and decedent’s widow. The residuary trust, designated as Fund B, is to be divided into separate equal trusts, one for the appellant and one for decedent’s widow. However, it is conceded now that the payments to the two beneficiaries under Fund B have not been equal. The widow has received a sum in excess of that paid to the appellant. About that there is no dispute and it is conceded that the payments must be equalized. However, the trial court ordered that interest at the rate of 6% be paid on the amount appellant is to receive in order to achieve an equal distribution. Appellant argues, however, that rather than interest at the rate of 6%, she should be paid interest on the amount due “at the prevailing rates between the dates such payments should have been made ... and the dates they were actually made____” The Executor argues that this issue is moot “since the Executor awarded to [appellant] the share of all income earned, not merely 6%.” However, this contention misconceives appellant’s argument as we understand it. Appellant’s argument is that she is entitled to damages in the nature of interest for the delayed payment of principal and income due her from the residuary trust. This is what we understand the trial court’s order to provide for. Since appellant has cited no authority for her proposition that she is entitled to interest at the prevailing rate rather than at the rate of 6% per annum for delay in payment and there is no evidence in the record of what the “prevailing rate” was at the times in question, we find that the trial court did not err in awarding interest for the delay in payment at the rate of 6% per annum.

Order vacated. Case remanded to the trial court for further proceedings in accordance with the foregoing opinion.

Jurisdiction relinquished.

This case was decided prior to the expiration of former President Judge SPAETH’s term of office.

      . No appellate brief has been filed or appearance entered on behalf of decedent’s widow, Ruth N. Fike. The Executor, Louis S. Fike, died on July 14, 1983. The Executors of Louis’ Estate, Evelyn R. Fike and Pittsburgh National Bank, caused an appellate brief to be filed and oral argument to be presented "for the Estate of [decedent] Robert P. Fike”.

      . Marital deduction formulas usually occur in one of two forms: either as a “pecuniary” or a "fractional” bequest. Neither party in this matter asserts that the will establishes a fractional formula. We will, therefore, forego a discussion of that term. Pecuniary formula bequests entitle a surviving spouse to an amount of property specified in dollars. But rather than forcing the testator to set the value of the marital trust at a specific amount — a difficult task, considering that the testator’s estate may increase or decrease between the time the will is drafted and the time he dies, rendering the figure chosen wholly inappropriate — the pecuniary formula determines the dollar amount at the time of the testator’s death. There are at least three (3) forms a pecuniary formula may take however. See Estate Planning Studies, July, 1983 (Merrill Anderson Company, Inc., West Port, Ct.) See also, generally A. James Casner, Estate Planning (4th Ed., 1980), W.J. Casey, Estate Planning Desk Book (Institute for Business Planning, 2d Ed., 1969), and 1 Fed.Est. & Gift Tax Rep. (CCH) ¶ 7535.48 (1983).


author: DEL SOLE, Judge: HESTER, Judge,

text:
    506 A.2d 405
    In re CONSTANCE W. Appeal of Gary HOOVER, Father.
    Superior Court of Pennsylvania.
    Argued Oct. 30, 1985.
    Filed Jan. 31, 1986.
    Thomas C. Panian and B. Kirk Holman, California, for appellant.

      Gregory C. Hook, Waynesburg, for appellee.
    Before WIEAND, DEL SOLE and HESTER, JJ.
   DEL SOLE, Judge:

Before this Court is the propriety of an order suspending the natural father’s visitation rights of his daughter, Constance W., for a period of one year. For the following reasons, we reverse.

The facts pertinent to our review are: prior to the child’s birth on November 26, 1983, Appellant, the natural father, filed a petition to determine paternity. Blood tests proved Appellant to be the child’s father. In August of 1984, the Appellant was granted visitation rights, and on October 2, 1984, Appellant petitioned for custody. A hearing was held on October 18 of that year, and the court granted full custody to the mother and partial custody to the father. A clarification of the court’s order was requested and granted in February of 1985.

Children and Youth Services of Greene County became involved in the case upon the father’s allegations of abuse and neglect of Constance by her mother. CYS initiated dependency proceedings. The hearing was not held because the parties entered into a stipulation that the child was not abused or neglected, and therefore, the dependency action was dismissed. The court issued an order on March 19, 1985 finding no abuse.

Children and Youth Services filed a second petition for dependency on April 30, 1985 because Constance was found to have three cigarette-type burns on her hand. Both parents testified, and the court found no abuse while noting that it was not satisfied with either parent’s explanation. The child was adjudicated dependent because of immature and irrational conduct of the parents. The Appellant was given full custody in alternate months.

On June 3, 1985, the Appellant was in a tavern when he received a call from an anonymous caller who said that the mother, Sherry, had taken the child to North Carolina and would not be bringing her back. Appellant then called Sherry’s sister-in-law, who resided in North Carolina and with whom he suspected Sherry was staying. The call was placed around 1:00 a.m. on June 4. Appellant threatened Sherry’s husband with the police and the FBI. He said that he would come down with his friend, “the Hulk”, and take the child back to Pennsylvania. Other threats were made that the child would be better off if Sherry were dead and he could see that it was done. Sherry’s husband testified that when the call was made, she was still in Pennsylvania.

Appellant consulted Officer James Popielarcheck of the East Bethlehem Township Police Department who called the North Carolina number and asked to speak with Sherry. He was told by a woman that she was unable to come to the phone. The provision contained in the court’s May 31 order was that:

[i]f the mother as now planned goes to North Carolina and makes her residence the child shall continued in the custody of the father.

The officer told the woman that he would transfer this order to the North Carolina Sheriff. The officer testified that that night Appellant was not drunk but had been drinking.

The following day, Appellant went to the Greene County District Attorney’s Office. The Assistant District Attorney told him there was no crime and that she could do nothing. She testified that Appellant became frustrated and irrational.

The mother filed a Petition for Reconsideration of Custody, and the court held a hearing on June 26, 1985. Psychological reports were admitted at the hearing. The Appellant was described as a “repulsive individual with limited tolerance for frustration.” It was suggested that the Appellant was attempting to maintain a relationship with Sherry through the child. Sherry testified at the hearing that he would often call her three times a day to inquire about the child. There was evidence at the hearing that the Appellant wanted Sherry to take his picture with her if she moved to North Carolina and that he would take her back if she wanted to have a relationship again.

The court issued an order finding that the child was not dependent when in the custody of the mother. In the order of June 26, 1985, the court found that because the father had illustrated hostile and irrational behavior in the late-night phone calls to and harrassment of the natural mother, that it was in the child’s best interest that Appellant be denied all custody and visitation privileges for one year. It is from this order that Appellant appeals. The issues raised are:

1. Did Appellant receive adequate notice that his parental rights were in jeopardy?
2. Did the trial court effectively involuntarily terminate Appellant’s rights to his daughter?
3. Did the trial court have a factual basis for denying or limiting Appellant’s visitation with or custody of his daughter?
4. Did the trial court have a legal basis for denying or limiting Appellant’s visitation with or custody of his daughter?
5. Should the determination below withstand Appellate scrutiny under the principles enunciated by this Court?

The U.S. Supreme Court has found that because of the fundamental interest of a parent in the care and welfare of their children, courts are to strictly scrutinize the procedures applied by the state in the disposition of custody cases.

The fundamental liberty interest of natural parents in the care, custody and management of their child does not evaporate simply, because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.

Santosky v. Kramer, 455 U.S. 751, 753-54, 102 S.Ct. 1388, 1394-95, 71 L.Ed. 599 (1982).

Recently, this Court has reiterated the standard of review to be applied by appellate courts in custody cases. We said:

Our scope of review in custody modification matters is governed by the law as it relates to initial custody hearings. The scope of appellate review in a custody matter is of the broadest type. An appellate court is empowered to determine whether the trial court is empowered to determine whether the trial court’s incontrovertible factual findings support the trial court’s conclusions, but may not interfere with those conclusions unless they are unreasonable in light of the trial court’s factual findings, and thus represent a gross abuse of discretion. Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800, 806 (1984); Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977).

Agati, 342 Pa.Super. 132 at 135, 492 A.2d 427 at 428 (1985).

The trial court, after hearing evidence, determined that: “the father has been unnaturally and unreasonably harassing the child and the family, the court further finding this not to be in the best interest of the child and being apparently a satisfaction of parental design and the court further finding the same to be a danger and a threat to the safety and security of the child as well as other parties.” After thoroughly examining the record, we find that the trial court abused its discretion in interpreting the evidence to justify the strict imposition on the father’s visitation rights. We do not find that the father’s actions amounted to a threat to the well-being of the child.

Appellant points out to this Court that the relevant law in this State is whether the father’s conduct can be shown by the mother to have a harmful effect of the child. Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981); Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976); Burr v. Morgart, 339 Pa.Super. 341, 488 A.2d 1155 (1985).

The record shows that even though the father may have acted unreasonably and possibly irrationally towards the mother when he was told that she had taken the child out of the jurisdiction, his actions never affected his relationship with the child. Even if the trial court accepted as true the psychologist’s conclusion that the Appellant was attempting to maintain a relationship with the mother through the child, it is the child who is ultimately benefiting. Appellant’s mother testified as to the loving and caring relationship between father and daughter. In refuting the mother’s claim that the father should be denied visitation because of his conduct, Appellant cites Commonwealth ex rel. Pierce v. Pierce, supra, for its similar factual scenario. In Pierce, the Court found that despite an incident where the father, upset about the mother’s behavior, pointed a gun at the mother, this incident had no effect on his relations with his daughter. The father’s “impulsive and somewhat irrational behavior” was not aimed at the child. The trial court’s denial of custody to the father was reversed. We find that Appellant’s argument is persuasive and consistent with a reasonable interpretation of the facts.

While we are aware that the court did not approve of Appellant’s behavior towards the child’s mother, the termination of the father’s visitation rights for one year is not consistent with the child’s best interests. Appellant argues that this, in effect, is terminating parental rights without the benefit of notice and other proper procedures. We note that one year is a long time in the evolution of the parent-child relationship.

It has long been against our public policy to limit or destroy the relationship between parent and child ... Every parent has the right to develop a good relationship with the child, and every child has the right to develop a good relationship with both parents.

Fatemi v. Fatemi, 339 Pa.Super. 590, 597, 489 A.2d 798, 802 (1985).

In Fatemi, one parent requested the court to impose a restriction of custody for the child. This Court explained:

[T]o avoid unduly impinging upon a parent relationship, a court must sparingly impose restrictions on the relationship ... and must furthermore impose at least intrusive restriction(s) reasonably necessary to assure the child’s welfare. [Emphasis added].

Fatemi, 339 Pa.Super. at 597, 489 A.2d at 802.

We find, therefore, that the court below failed to adequately weigh lesser restrictive alternatives (i.e. supervised visitation, etc.) which are in the best interests of the child and in protection of the parent-child relationship.

Therefore, we reverse and remand for a redetermination of custody and visitation rights consistent with this opinion. Jurisdiction relinquished.

HESTER, J., files a dissenting statement.

HESTER, Judge,

dissenting:

I respectfully dissent. I would affirm on the opinion of the court below, President Judge Glenn Toothman. My review of the record leads me to conclude that the best interests of the child mandate that we affirm.


author: BECK, Judge: DEL SOLE, Judge,

text:
    506 A.2d 408
    Dr. Steven ROSENBERG, Appellant, v. HOLY REDEEMER HOSPITAL and Dr. John A. Jakabcin.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1985.
    Filed March 11, 1986.

      H. David Kraut, Lansdale, for appellant.
    Michael C. Hemsley, Philadelphia, for Holy Redeemer, appellee.

      Stephen C. Baker, Philadelphia, for Jakabcin, appellee.
    Before ROWLEY, DEL SOLE and BECK, JJ.
   BECK, Judge:

Dr. Steven Rosenberg appeals the summary judgment granted in favor of defendant Holy Redeemer Hospital. In the original equity action filed by Dr. Rosenberg he sought injunctive relief from the hospital’s denial of his application for staff privileges.

Our scope of review in this matter is limited to abuse of discretion of the trial court. After examining the ample record and Judge Brody’s excellent opinion, we affirm. Before discussing the substance of the case, however, we must first determine whether this appeal is properly before the Superior Court.

Title 42 Pa.C.S.A. 762 states in relevant part:

(a) General rule. — Except as provided in subsection (b), the Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in the following cases:
******
(5) Certain private corporation matters. — (i) All actions or proceedings relating to corporations not-for-profit arising under Title 15 (relating to corporations and unincorporated associations) ...
(ii) All actions or proceedings otherwise involving the corporate affairs of any corporation not-for-profit subject to Title 15 or the affairs of the members, security holders, directors, officers, or employees or agents thereof, as such.

Holy Redeemer Hospital is a private corporation not-for-profit. Therefore, a controversy to which it is a party could properly have been appealed to the Commonwealth Court or could be transferred thereto by the Superior Court. See 42 Pa.C.S.A. 705; Karpe v. Borough of Stroudsburg, 315 Pa.Super. 185, 461 A.2d 859 (1983).

We note, however, that neither party has objected to the appeal before this court. We are therefore invested with jurisdiction to decide the matter by virtue of 42 Pa.C. S.A. 704.

§ 704. Waiver of objections to jurisdiction
(a) General rule. — The failure of an appellee to file an objection to the jurisdiction of an appellate court within such time as may be specified by general rule, shall, unless the appellate court otherwise orders, operate to perfect the appellate jurisdiction of such appellate court, notwithstanding any provision of this title, or of any general rule adopted pursuant to section 503 (relating to reassignment of matters), vesting jurisdiction of such appeal in another appellate court.

Having decided the jurisdictional question, we turn to the substance of the case. We find that appellant’s arguments have been thoroughly discussed in the well reasoned opinion authored by Judge Anita Brody. We therefore adopt as our own that portion of Judge Brody’s opinion which follows.

“HISTORY OF THE CASE

“On September 9, 1980, Dr. Rosenberg applied for appointment to the active medical staff of defendant Holy Redeemer Hospital (‘Hospital’). On January 31, 1981, the Hospital’s Board of Directors notified Dr. Rosenberg of its decision to deny his application. Dr. Rosenberg then requested an appeal of that decision. The Hospital’s Medical Staff Ad Hoc Appellate Committee then held hearings on April 9, April 29 and June 4 of 1981, subsequently denying the doctor’s appeal on July 30, 1981. Dr.- Rosenberg next appealed to the Appeal Review Committee of the Hospital’s Board of Directors, which, after a hearing, upheld the denial of his application.

“Thereafter, Dr. Rosenberg filed suit against Holy Redeemer Hospital and Dr. John A. Jakabcin, seeking injunctive relief as well as compensatory damages. The suit against Dr. Jakabcin was severed by the Court for disposition, and is not involved in the instant appeal.

“Initially, the Hospital filed Preliminary Objections to the Complaint, which were denied. Dr. Rosenberg then filed a Motion for Summary Judgment relating to the procedures followed by the Hospital in considering Dr. Rosenberg’s application, and on this motion Dr. Rosenberg prevailed. By order of January 30, 1984 the Court remanded the case to the Appellate Review Committee of the Hospital, insisting that they afford Dr. Rosenberg a de novo hearing in accordance with specific procedures.

“On March 22, 1984, the Hospital’s Appellate Review Committee conducted a hearing at which, in accordance with the Court’s order, Dr. Rosenberg was present, was accompanied by his attorney, and presented testimony and witnesses on his behalf. This hearing was transcribed by a certified court reporter. On April 3, 1984, the Appellate Review Committee recommended to the Hospital’s Board of Directors that the denial of Dr. Rosenberg’s application be affirmed. This recommendation was adopted by the Board on April 4, 1984, and notice thereof was sent to the doctor on April 5, 1984, stating that the basis for his application’s denial was the Hospital’s moratorium on new appointments.

“Subsequently, Dr. Rosenberg filed a Motion to Lift the Stay or in the alternative Reconsider the Stay of Proceedings against Holy Redeemer Hospital, and a Petition for Contempt and for Supplemental Injunctive Relief; the Hospital filed a Motion for Summary Judgment. These motions were consolidated for hearing on October 1, 1984.

“On November 1, 1984, this Court issued an order granting the defendant Hospital’s Motion for Summary Judgment; on November 28, 1984, orders dismissing both plaintiff’s Motion to Lift or Reconsider the Stay, and Petition for Contempt or Supplemental Injunctive Relief were entered. It is from these orders that Dr. Rosenberg appeals.

“DISCUSSION

“A. MOTION OF DEFENDANT FOR SUMMARY JUDGMENT

A motion for summary judgment should be granted only where the record shows that there is no genuine issue as to material fact and that the moving party is entitled to judgment as a matter of law. As stated by the Superior Court:

‘The moving party bears the burden of demonstrating that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. In determining whether the moving party has met this burden, the court must examine the record in the light most favorable to the non-moving party, giving that party the benefit of all reasonable inferences. All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Summary judgment should be granted only in the clearest case, where the right is clear and free from doubt.’

Pennsylvania Gas & Water Co. v. Nenna & Frain, Inc., 320 Pa.Super. 291, 467 A.2d 330 (1983), citing Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 412 A.2d 466 (1979).

“In the instant case, the record clearly shows that Holy Redeemer Hospital is entitled to summary judgment. The Hospital has complied with the necessary procedural requirements in making its decision concerning Dr. Rosenberg’s application, and this Court has determined that as a matter of law it is without authority to review the substance of that decision.

“Dr. Rosenberg complains on appeal that the court erred in determining that the actions of Holy Redeemer Hospital are not subject to judicial review on a substantive level. Dr. Rosenberg first alleges that such review is permissible in the instant case due to the quasi-public nature of the Hospital.

“Presumably, Dr. Rosenberg is claiming this quasi-public status for the Hospital in order to subject the Hospital’s decision to due process scrutiny. Dr. Rosenberg does not allege that the Hospital’s decision amounts to state action; indeed, the parties have stipulated that Holy Redeemer Hospital is not a public hospital and that the state has not commanded or directed the Hospital to deny Dr. Rosenberg’s application. Thus, the direct state action which would trigger constitutional review is not present in this case.

“Although it is clear that the due process clause ‘applies only to ‘state action’ and not to private conduct ... ’, Adler v. Montefiore Hospital Association of Western Pennsylvania, 453 Pa. 60, 68-69, 311 A.2d 634, 639 (1973), it has also been held that ‘private hospitals with certain public characteristics, so called ‘quasi-public’ hospitals, are deemed to be engaged in state action,’ Miller v. Indiana Hospital, 277 Pa.Super. 370, 378, 419 A.2d 1191, 1194 (1980). Thus, if Holy Redeemer Hospital is a ‘quasi-public’ hospital, its decision here is subject to scrutiny pursuant to the due process clause.

“The test for assessing whether a hospital is to be considered quasi-public is whether that hospital receives tax benefits, is funded mainly from public sources, and holds a monopoly in the area which it serves. Id., 277 Pa.Super. at 379, 419 A.2d at 1194. We note that the Miller Court pointed to dicta in Adler v. Montefiore Hospital, 453 Pa. at 60, 311 A.2d 634 (1973), whereby the Pennsylvania Supreme Court indicated that a hospital which received Hill-Burton construction funds from the federal government might also be considered quasi-public. The Superior Court in Miller declined to apply this dicta, noting that although the Supreme Court in Adler had relied on a series of cases from the Fourth Circuit Court of Appeals, the Third Circuit Court of Appeals and the majority of circuits have held that the receipt of Hill-Burton funds by a hospital does not make its action state action, citing Hodge v. Paoli Memorial Hospital, 576 F.2d 563 (3rd Cir.1978).

“Since the Superior Court’s decision in Miller, the Fourth Circuit Court of Appeals, on which our Supreme Court relied in Adler, has reevaluated this issue and has concluded that state action is not created by a hospital’s receipt of Hill-Burton funds. Modaber v. Culpeper Memorial Hospital, Inc., 674 F.2d 1023 (4th Cir.1982). In view of this, and in light of the weight of authority supporting this view, we will follow the Miller decision and have applied only the three part test stated above.

“That Holy Redeemer Hospital does not qualify as a quasi-public institution pursuant to the test as stated in Miller, 277 Pa.Super. at 378-79, 419 A.2d at 1190-91, is clear from the content of the aforementioned stipulation executed by the parties. The stipulation expressly states in part that Holy Redeemer Hospital is not a monopoly in the area that it serves, thereby refuting one of the necessary elements of the analysis required by Miller, id., prior to a conclusion that a hospital is a quasi-public institution. Holy Redeemer Hospital is not, by plaintiff’s own admission, a monopoly in the area that it serves; the Hospital is therefore not subject to judicial review as a quasi-public institution. Since the test for quasi-publicness has not been met, we, as did the Superior Court in Miller, ‘decline to judge appellant’s claims of unfairness against the due process clause ...’ 277 Pa.Super. at 379, 419 A.2d 1195.

“Dr. Rosenberg next complains that the action of the Hospital is subject to further review pursuant to the regulations of the Pennsylvania Department of Health, 28 Pa. Code § 107.1 et seq. The regulations effective at that time required in part that the bylaws of a hospital provide for ‘fair hearing and appellate review mechanisms, which will be available if requested by the practitioner, in connection with medical staff recommendations for denial of staff appointments ...’, 28 Pa.Code § 107.12(4). Accordingly, the Hospital’s denial of Dr. Rosenberg’s application is reviewable as to whether the Hospital afforded the doctor ‘fair hearing and appellate review mechanisms’, and it is this issue to which the Court’s order of January 30, 1984 is addressed. However, these regulations are procedural in nature, and nowhere provide for judicial review of the substance of a decision made pursuant to such fair hearing and review mechanisms. Dr. Rosenberg’s contention that the regulations provide for substantive review of the Hospital’s decision is unsupported.

“It should be noted additionally that there is no precedent in Pennsylvania case law for the substantive review of a private hospital’s hiring decisions. While several states have held that hospitals have a fiduciary duty to the public which permits some degree of judicial review of those institutions’ decisions, see Silver v. Castle, 53 Haw. 475, 497 P.2d 564, cert. denied, 409 U.S. 1048, 93 S.Ct. 517, 34 L.Ed.2d 500 (1972), the majority of jurisdictions hold that staffing decisions are within the hospital’s discretion and are not subject to judicial review. Schiffman v. Manhattan Eye Ear & Throat Hospital, 35 App.Div.2d 709, 314 N.Y.S.2d 823 (1970); Moore v. Andalusia Hospital Inc., 284 Ala. 259, 224 So.2d 617 (1969); Cowan v. Gibson, 392 S.W.2d 307 (Mo.1965).

“The view that private hospital’s hiring decisions should not be subject to judicial review remains sound. The administrative officers of a private institution are presumed to operate in the best interest of that institution. A court should be loathe to substitute its judgment on a matter as intrinsic to the hospital as is a staffing decision. Absent some legislative command to the contrary, the courts of this Commonwealth will not interfere with the substantive decisions of private hospitals, but will only ensure that such decisions are made pursuant to the proper procedures.

“This Court, then, finds that as a matter of law it is without the authority to review the decision of Holy Redeemer Hospital to deny Dr. Rosenberg’s application on a substantive level.

“It is in view of this legal conclusion that defendant’s Motion for Summary Judgment was considered. The record viewed in a light most favorable to Dr. Rosenberg supports the Court’s conclusions that the Hospital had complied with the necessary procedural framework, that the Hospital was not a quasi-public institution, and that the actions of a private hospital are not reviewable on a substantive level pursuant to plaintiff’s complaint. The Court found no dispute as to any fact material to these conclusions. Discovery on the Hospital’s motion was therefore unnecessary, and Dr. Rosenberg’s contention that it was error not to permit such discovery is meritless. The right of Holy Redeemer Hospital to summary judgment in this case was indeed “clear and free from doubt.” Pennsylvania Gas & Water Co. v. Nenna & Frain, 320 Pa.Super. 298, 467 A.2d at 333.

“Since we have not reviewed the Hospital’s decision on a substantive level, several other allegations made by Dr. Rosenberg on appeal must also fail. For example, Dr. Rosenberg claims that it was error for the Court not to find that Holy Redeemer Hospital abused its discretion and acted arbitrarily and capriciously in applying its staff admissions policy. This contention is meritless, since we did not reach the issue of review of the Hospital’s decision under an abuse of discretion standard, or in terms of its arbitrariness or capriciousness, but examined only the procedural background of that decision in view of the Department of Health regulations.

“Likewise, Dr. Rosenberg’s contention that the Court credited the unsupported affidavit of the Hospital’s Executive Director and unsupported representations of counsel that the Hospital was overcrowded is without basis. That the Hospital may or may not have been overcrowded played no part in this Court’s determination that summary judgment in favor of the Hospital was appropriate.”

Doctor Rosenberg’s response to Judge Brody’s opinion is that she has answered correctly a question not asked. He asserts that the judge determined that the hospital is neither public nor quasi-public. He asserts that his argument concedes those points and profers instead that the hospital is a public fiduciary. Thus, he claims, the hospital’s internal staffing decisions are reviewable even in the absence of state action. To this end he urges us to follow Greisman v. Newcomb Hospital, 40 N.J. 389, 192 A.2d 817 (1963) and its progeny.

In Greisman and under Judge Brody’s analysis, judicial review is permissable only where the hospital exercises a monopoly position in a particular geographical area. It is the monopolistic characteristic, among other things, that may create a common-law fiduciary duty on the part of a hospital to the public. In Greisman the court concluded that the Newcomb Hospital exercised a monopoly. Judge Brody concluded that the Holy Redeemer Hospital did not. Although Judge Brody’s opinion is framed in language of a quasi-public hospital, she has adequately responded to the appellant’s argument relating to the public fiduciary nature of the hospital. She correctly concludes that in the absence of a monopoly position, among other things, the hospital’s internal procedures are not generally reviewable. See Note, Judicial Review of Private Hospital Activities, 75 Mich.L.Rev. 445, 450 n. 31 and text (1976).

Since the Holy Redeemer Hospital did not possess one of the primary qualities of a public fiduciary, the monopolistic characteristic, it would have been useless for her to indulge in an analysis of whether the Holy Redeemer Hospital was a public fiduciary. To date no appellate case in Pennsylvania has directly addressed the question of whether a hospital owes a duty to the public as a fiduciary.

In a related appeal Dr. Rosenberg alleges that the trial court erred in denying his Motion for Contempt and/or Supplemental Injunctive Relief and his motion to Lift the Stay of Discovery (supplementary motions). Appellee hospital counters that the trial court lacked jurisdiction to act on the supplementary motions and thus the appeal of those orders must be dismissed.

We address the question whether the trial judge had jurisdiction to act on these supplementary motions after appellant filed his notice of appeal. Pa.R.A.P. 1701(a) provides in pertinent part:

(a) General rule. Except as otherwise prescribed by these rules, after an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may no longer proceed further in the matter.
(b) Authority of a trial court or agency after appeal. After an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may:
(1) Take such action as may be necessary to preserve the status quo, correct formal errors in papers relating to the matter,,cause the record to be transcribed, approved, filed and transmitted, grant leave to appeal in forma pauperis, grant supersedeas, and take other action permitted or required by these rules or otherwise ancillary to the appeal or petition for review proceeding.

Appellant’s supplementary motions were filed on May 17, 1984. The court’s order granting summary judgment to appellee was entered November 1,1984. Appellant noticed his appeal one week later. The court’s orders denying the supplementary motions were entered November 28, 1984. We hold that the trial court’s denial of the supplementary motions was proper. The trial court had jurisdiction to act on the motions inasmuch as it was clearing up matters ancillary to the appeal. Pa.R.A.P. 1701(a)(1).

On the merits of the supplementary motions, the Judge stated:

Dr. Rosenberg’s allegations that it was error for the Court not to find the Hospital in contempt is meritless. The Hospital complied with each provision of this Court’s order [by] supplying Dr. Rosenberg with a statement as to the reasons for denial of his application prior to the hearing, conducting the de novo review with Dr. Rosenberg and his counsel present, permitting Dr. Rosenberg to present evidence in support of his appeal, permitting transcription of the hearing, and notifying Dr. Rosenberg of its decision within the prescribed time limit. In light of the Hospital’s compliance with the earlier order, the Court’s dismissal of plaintiff’s Motion for Contempt and/or Supplemental Injunctive Relief was proper.

The summary judgment at appeal no. 3046 Philadelphia 1984 is affirmed. The orders at appeal no. 3322 Philadelphia 1984 denying appellant’s Petition for Contempt and/or Injunctive Relief and denying appellant’s Motion to Lift the Stay of Discovery are affirmed.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

While I do not dissent from the analysis of the underlying issues set forth by my colleague, Judge Beck, I do dissent from that portion of the opinion which would have our Court assume jurisdiction over this matter.

In my view, 42 Pa.C.S.A. § 762, which vests exclusive jurisdiction in the Commonwealth Court of certain types of appeals, definitely encompasses actions involving nonprofit corporations when dealing with the affairs of the corporations, its members, employees, or others. While it is true that neither party has objected to the Superior Court’s jurisdiction, it is my belief that in the areas reserved by the general assembly for Commonwealth Court determination, we would best serve the interest of justice by seeing to it that those issues in those areas are sent to the Commonwealth Court for disposition. We could thus prevent conflicting bodies of law developing in the intermediate appellate courts on similar issues.

For example, a panel of our Court recently filed an opinion which held that 42 Pa.C.S.A. § 8542 precluded municipal liability for injuries caused by the criminal acts of third persons on property under the municipality’s ownership and control. Casey v. Geiger, and the Borough of Camp Hill, 346 Pa.Super. 279, 499 A.2d 606 (1985) (Hoffman, J. dissenting). One month earlier, the Commonwealth Court filed an opinion which seems to reach the opposite result. Johnson v. SEPTA, 91 Pa.Cmwlth. 587, 498 A.2d 22 (1985), (Craig, J. dissenting); (Barry, J. concurring). It is this sort of problem I would hope to avoid by transferring this case.

For these reasons, I dissent from that portion of the opinion of my colleagues that retains jurisdiction in the Superior Court.

      . This order, premised on the requirements set forth in the Commonwealth’s hospital licensure regulations, 28 Pa.Code § 107.5, effective at that time, and the private remedy implicit in those regulations, is not being appealed.

      . See also 28 Pa.Code § 107.5, relating to the procedure to be followed by medical institutions in appointing or refusing to appoint members to the medical staff.


author: OLSZEWSKI, Judge:

text:
    506 A.2d 415
    COMMONWEALTH of Pennsylvania v. William VERDEKAL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 23, 1986.
    Filed March 18, 1986.

      Mark Pinnie, Media, for appellant.
    Joseph J. Mittleman, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before OLSZEWSKI, TAMILIA and KELLY, JJ.
   OLSZEWSKI, Judge:

William Verdekal, appellant, was found guilty of robbery and theft by unlawful taking following a jury trial. In his appeal, appellant presents six issues for appellate review: (1) whether the motion to supress appellant’s identification by the victims was properly denied; (2) whether the appellant was placed in double jeopardy when the court declared a mistrial and he was subsequently retried; (3) whether it was error to allow the jury to have certain physical evidence with them during their deliberations; (4) whether the evidence was sufficient to support the conviction and was the verdict contrary to the evidence; (5) whether there was sufficient probable cause to arrest the appellant; and (6) whether appellant was afforded effective assistance of counsel.

On March 28, 1983, at approximately 12:55 p.m., a gunman robbed Koban’s Beverage, Inc., in Glenolden, Delaware County. The gunman, brandishing a .38 caliber snub-nosed revolver, was described by the store owner and his manager as a white male in his early thirties wearing a brown knit cap; brown pants; oxford shoes; a white handkerchief, tied in a knot so as to form a mask; and a distinctive brown tweed sweater. Three witnesses told police investigators that at approximately 1:00 p.m. that day, they saw a white Mercedes-Benz truck stopped adjacent to Koban’s Beverages. An occupant of the truck exited the vehicle and walked in the direction of Koban’s Beverage.

On April 7, 1983, appellant and John Robert Turcotte were arrested by the Clifton Heights Police Department in Delaware County and charged with a separate robbery. Found on the person of Turcotte was a .38 caliber snub-nosed revolver. He was wearing a distinctive brown tweed sweater. Around his neck was a white handkerchief, tied in a knot so as to form a mask. The two were arrested while riding in a white Mercedes-Benz truck owned and driven by appellant.

Learning of the Clifton Heights arrest, Glenolden Police showed the three witnesses the appellant’s white Mercedes-Benz truck, which they said looked like the truck they had seen on the day of the Koban’s robbery. Both of the victims of the robbery identified Turcotte’s sweater as the one worn by the gunman. On April 14, 1983, the appellant and Turcotte were arrested and charged with robbery, conspiracy, and theft by unlawful taking. The appellant was subsequently identified by the victim as the gunman. His original co-defendant, John Turcotte, was discharged at that hearing.

A jury was convened before the Honorable Robert W. Wright. The next day, the jury deliberated from 2:05 until 3:55 p.m., indicating to the court that they were deadlocked. Subsequently, the court declared a mistrial. A retrial on September 19-20, 1984 resulted in a guilty verdict. This appeal followed.

I

The first of appellant’s six issues alleges that the trial court erred in denying his motion for suppression of identification because there was insufficient independent testimony by the victims to substantiate their identification. Throughout the proceedings, descriptions given by witnesses and victims were vague and general. In addition, they tended to vary, especially as to the color of the robber’s hair. A picture, in a photo array, of appellant’s co-defendant was not identified, while an in-person identification of appellant was made. In addition, appellant contends that the in-court identification should have been suppressed because it was tainted by a suggestive confrontation before the preliminary hearing.

According to the Supreme Court in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the factors to be considered in reviewing an identification procedure are: (1) the opportunity of witnesses to view the suspect at the time of the crime, (2) the witnesses’ degree of attention, (3) the accuracy of any prior identification, (4) the level of certainty at the confrontation, and (5) the time between the confrontation and the crime. See also Commonwealth v. Lee, 262 Pa.Super. 280, 396 A.2d 755 (1978). A claimed violation of due process of law, in the conduct of a confrontation such as that made by appellant, depends on the totality of the circumstances surrounding it. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

Reviewing the Neil criteria, the following is established: the victims observed the gunman for about 15-20 minutes at a fairly close range; since the gunman was robbing the victims and was indeed pointing a gun at them, the victims gave the gunman their complete and undivided attention; the victims were able to give the police a general description of the gunman with a degree of specificity as to clothing attire; the appellant was positively identified while the co-defendant was positively dismissed through the photo array; and the identification took place approximately three weeks after the crime. The trial court found this above information sufficient to allow the identification testimony. We agree with his decision.

II

The second issue advanced by appellant concerns the mistrial which ended appellant’s first trial. He now argues that his retrial violated his right against double jeopardy and that the charges against him should have been dismissed. Appellant relies principally on the short deliberation period — slightly less than two hours — to bolster his argument that the manifest necessity required for a mistrial did not exist.

Where the jury, after full consideration of the case, fails to agree and there is no reasonable basis for believing that they will be able to agree after further deliberation, a manifest necessity exists for their discharge. Commonwealth v. Fredericks, 235 Pa.Super. 78, 340 A.2d 498 (1975). There is no predetermined formula to decide when a mistrial must be granted. Each case differs in the complexity of the issues presented, the seriousness of the charges to be considered, and the amount of testimony to be digested and reviewed. These factors are used in weighing the reasonableness of the length of jury deliberations. Commonwealth v. Monte, 459 Pa. 495, 329 A.2d 836 (1974). Ultimately, the length of the jury deliberation is wisely left to the sound discretion of the trial judge. Commonwealth v. Monte, supra.; Commonwealth v. Campbell, 445 Pa. 488, 284 A.2d 798 (1971).

In reviewing whether the trial court properly determined that the jury would not be able to reach a verdict so that manifest necessity required the declaration of a mistrial, we note that the trial judge is in a far better position to decide these issues. Commonwealth v. Fredericks, supra. The judge below hears the evidence; observes the attitudes, demeanor, and other characteristics of witnesses; and takes notice of the jury’s attentiveness and reaction to the evidence presented. Commonwealth v. Fredericks, supra.

The important facts concerning the judge’s decision include the appellant’s counsel’s request for a mistrial and the indication, by a written note, that the jury could not reach a verdict and that they firmly believed the opinions held by each would not change. The seriousness of an 8-4 split was not outweighed by a deliberation period of slightly less than two hours. The judge did not abuse his discretion, given the fact that the trial did not last more than two days with approximately four witnesses and eight exhibits. We therefore refuse to find any merit to appellant’s double jeopardy claim.

Ill

Appellant next argues that the court should not have allowed six bullets found at the time of his arrest to go out with the jury during their deliberations. The trial court found that the evidence was relevant in that it made the possibility that appellant entered Koban’s with a gun more probable and that, therefore, the jury may take the bullets into deliberation with them. Except in certain specific circumstances, decisions concerning what exhibits may be taken out by the jury are within the sound discretion of the trial judge. Pa.R.Crim.P. 1114. Absent an abuse of discretion, the trial judge will not be reversed on appeal. Commonwealth v. Lybrand, 272 Pa.Super. 475, 416 A.2d 555 (1979). A careful review fails to reveal any abuse of discretion by the trial judge. As such, we find appellant’s argument meritless and affirm the lower court.

IV

The fourth allegation of error made by appellant is that the evidence is insufficient to support the conviction and the verdict was contrary to the evidence. In support of this argument, appellant relies upon the significant problems and discrepancies in identification. Appellant contends that this was enough to raise a reasonable doubt as to his guilt.

The standard of review for evaluating sufficiency of the evidence is whether, viewing all the evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences therefrom, the trier of fact could properly have found that all the elements of the crime had been established beyond a reasonable doubt. Commonwealth v. Cartagena, 482 Pa. 6, 393 A.2d 350 (1978); Commonwealth v. Thomas, 465 Pa. 442, 350 A.2d 847 (1976). Only where the evidence is so inconsistent and unreliable so that the verdict is based upon conjecture, will it be overturned. Commonwealth v. King, 287 Pa.Super. 105, 429 A.2d 1121 (1981). A mere conflict of testimony does not render the evidence insufficient. Commonwealth v. Dolan, 287 Pa. Super. 202, 429 A.2d 1171 (1981). When conflicts and discrepancies arise, it is within the province of the jury to determine the weight to be given each testimony and to believe all, part, or none of the evidence as they deem appropriate. Commonwealth v. Rose, 463 Pa. 264, 344 A.2d 824 (1975).

Applying this law to the case presently before us, we find no abuse of discretion by the trial court and decline to reverse. The jury, after hearing all the evidence regarding the variations in descriptions, decided against the appellant’s position. The lower court then dismissed appellant’s post-trial motion for new trial and in arrest of judgment holding the evidence more than sufficient to satisfy the reasonable doubt standard. We agree and affirm the verdict.

V

The next issue for consideration is whether there was probable cause to arrest appellant. In alleging a lack of probable cause, appellant once again argues the inaccurate description given in support of the affidavit. He submits that the only link between the Koban robbery and his arrest was a white Mercedes truck, since the description given of the clothing worn by the gunman fit that of appellant’s co-defendant.

Probable cause exists if the facts and circumstances within the knowledge of the police at the time of the arrest, and of which they have reasonably trustworthy information, are sufficient to justify a man of reasonable caution in the belief that a suspect has committed or is committing a crime. Commonwealth v. Kazior, 269 Pa.Super. 518, 410 A.2d 822 (1979); Commonwealth v. Powers, 484 Pa. 198, 398 A.2d 1013 (1979). The burden of proving probable cause rests with the Commonwealth and mere suspicion is not enough. Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974); Commonwealth v. Holton, 432 Pa. 11, 247 A.2d 228 (1968). The standard of probable cause, however, must be applied to the totality of the circumstances facing the police. Facts insufficient to justify an arrest if considered separately may in combination supply probable cause. Commonwealth v. Roscioli, 240 Pa.Super. 135, 361 A.2d 834 (1976). In addition, this Court has held that when examining a particular situation to determine if probable cause exists, all factors and their total effect must be considered rather than concentrating on each individual element. The circumstances must be viewed through the eyes of trained police officers and not the average citizen. Finally, the question of probable cause is not one of certainty; instead the court must deal with the factual and practical considerations of everyday life on which reasonable and prudent men act. This is not the same “beyond a reasonable doubt” standard applied in determining guilt or innocence at trial. Commonwealth v. Tolbert, 235 Pa.Super. 227, 341 A.2d 198 (1975); Commonwealth v. Devlin, 221 Pa.Super. 175, 289 A.2d 237 (1972).

Appellant and another were arrested for an unrelated robbery. At that time, appellant was driving his white Merecedes truck identified as being similar to the one used in the Koban robbery. Appellant’s co-defendant was wearing the clothes described by eyewitnesses. In addition, a .38 caliber revolver was found on the co-defendant and a box of.38 caliber bullets were found in appellant’s truck. The totality of the circumstances warranted the officer’s belief that both appellant and his co-defendant were probable suspects. Exact certainty as to which of the two was the lone gunman was not necessary.

In addition, it should be noted that the United States Supreme Court has ruled that an illegal arrest, without more, has never been viewed as a bar to a subsequent prosecution nor as a defense to a valid conviction. United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980). A person is not a suppressible fruit and any illegality of detention cannot deprive the government of the opportunity to prove guilt through the introduction of evidence wholly untainted by the police misconduct. United States v. Crews, supra. The Pennsylvania Supreme Court has also held that an appellant cannot seek the suppression of his very person. Commonwealth v. Krall, 452 Pa. 215, 304 A.2d 488 (1973).

VI

Finally, appellant argues that he was denied effective assistance of counsel during the trial. To support this contention, he cites three particular instances: first, there was no request for any pretrial identification proceedings; second, counsel did not object to a declaration of mistrial; and third, a cautionary instruction concerning identification testimony was not requested.

Pennsylvania law regarding ineffective assistance of counsel is well documented. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), enunciated the process to be used as a two-pronged analysis consisting first of a determination of whether the issue underlying the ineffectiveness claim is of arguable merit, and second whether the course chosen by counsel had some reasonable basis aimed at promoting the appellant’s interests. Commonwealth v. Pierce, 345 Pa.Super. 324, 498 A.2d 423 (1985); Commonwealth v. Cooper, 333 Pa.Super. 559, 482 A.2d 1014 (1984). Recently, an en banc Superior Court added another consideration. In addition to the above requirements, an appellant must establish that the ineffectiveness so prejudiced his case that he did not receive a fair trial. Commonwealth v. Pierce, supra. At all times through the process, the law presumes effective counsel and the burden of proving ineffectiveness of counsel rests with the appellant. Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984).

Appellant did not meet his burden in any of the three claims of ineffective assistance of counsel. A motion to suppress identification of appellant was denied and a positive in-court identification was made by the victims. Appellant’s trial counsel took every, opportunity available at trial to raise a reasonable doubt as to the gunman’s identity. All testimony and evidence pointing out the discrepancies given by the victims, as well as how those descriptions compared to the appellant, were properly before the jury and decided by the jury. The second claim is equally meritless. As previously discussed, the mistrial was appropriately declared by the judge. It could not have made a difference whether or not trial counsel objected or consented. Therefore, he could not have been ineffective in his actions. Lastly, the record reveals that the instructions given the jury sufficiently charged the jury regarding the identification testimony. Trial counsel did not need to request a cautionary instruction. Counsel willnot be held ineffective for refraining from doing that which is unnecessary.

Judgment of sentence affirmed.

      . Appellant was not viewed in a photo array or a lineup. This is the basis of an ineffective assistance of counsel claim to be discussed in Part VI.

      . The appellant also argues ineffective assistance of counsel, which will be discussed in Part VI.

      . Pa.R.Crim.P. 1114 does not allow the jury to have a transcript of any trial testimony, a copy of any written confession by the defendant, or a copy of the information or indictment with them while deliberating.