author: BROSKY, Judge. JOHNSON, Judge,

text:
    572 A.2d 12
    Carl H. PALMER and Margaret E. Palmer v. Abner S. LAPP and Rebecca S. Lapp t/d/b/a Abner Lapp’s Coach Shop, Appellants.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1989.
    Filed March 22, 1990.

      Neil L. Albert, Lancaster, for appellant.
    Dean Piermonte, Lancaster, for appellee.
    Before BROSKY, WIEAND and JOHNSON, JJ.
   BROSKY, Judge.

Appellants Abner S. Lapp and Rebecca S. Lapp, t/d/b/a Abner Lapp’s Coach Shop, appeal from the judgment of the trial court following a $10,077.00 damages award in plaintiff-appellee Carl H. Palmer and Margaret E. Palmer’s favor. This case was originally tried before an arbitration panel. Appellees were awarded $9,100.00; appellants appealed to the Court of Common Pleas of Lancaster County and appellees’ award was increased to $10,077.00 at a bench trial.

Appellants aver that the trial court erred when it permitted appellees’ expert to testify regarding the value of two antique carriages. We reverse.

Appellees owned two antique horse:drawn carriages — a surrey and a hearse. Webster’s Ninth New Collegiate Dictionary defines an antique as “1. a relic or object of ancient times or of an earlier period than the present. 2. a work of art, piece of furniture or decorative object made at an earlier period and according to various customs laws at least one-hundred years ago.” There is no requirement that functional objects other than furniture, as the surrey and hearse, be of substantial value, rare or at least one-hundred years old to be considered antiques according to either definition. The rare, ornate hearse contained elaborate wood carvings and was manufactured around 1887 by the James Cunningham Carriage Company of Rochester, New York. N.T., 6/24/88, at 8, 16, 36, 71. Each Cunningham hearse was inscribed with a serial number and was different from any other one manufactured by the company. Id. at 16. The Cunningham Company specialized in the manufacture of carriages and hearses. The Encyclopedia of Collectibles, Time-Life Books. If a serial number is stamped on the seat under the cushion of a Cunningham carriage, the identity of the original purchaser, price paid and date of purchase can be ascertained through company records. Id. Appellees painted the undercarriages of the vehicles themselves and stripped and primed the upper portions in preparation for professional paint work by appellants. N.T., 6/24/88, at 12. The carriage was an Extension Top Phaeton, but we were not provided with the identity of its manufacturer or date of manufacture. Virtually all of the carriages and horse-drawn hearses that survive in the United States date from 1800 to approximately 1910, when the automobile made its appearance. The Encyclopedia of Collectibles, supra. All horse-drawn carriages were made almost entirely of wood; metal was only used in axles, tires, bolts, etc. Id. Appellees took photographs of the carriages before they were delivered to appellants, and a contract was entered into whereby appellants were to paint the surrey and the hearse. They were destroyed in a fire at appellants’ place of business which is located in Intercourse, Pennsylvania, an area containing numerous Amish residents. Appellants admit liability. The issues on appeal only concern the amount of damages.

Appellants claim that Joyce Cusano, appellees’ expert witness regarding the value of the destroyed surrey and hearse, was unqualified to testify as an expert relative to either item.

Mrs. Cusano was employed at the time of trial by Vintage Auto Appraisal Services of Schenectady, New York. N.T., 6/24/88, at 21. She worked with her employer, Paul Podvesa, who is an appraiser of all types of motorized vehicles and is the owner of the agency. The agency also appraises antique automobiles as well as farm equipment. Id. at 24, 28. Mrs. Cusano was classified as his assistant and an appraiser. She was previously employed in the insurance business as a clerical supervisor for sixteen years and also worked in the casualty claims area. Id. at 21. She had been employed for four years prior to and at the time of trial as an appraiser of motor vehicles (cars and light trucks), and had a New York State appraiser’s license. Id. at 22.

After the fire, appellees presented Vintage Auto with pre-fire photographs of the surrey and the hearse. Neither Mrs. Cusano nor Mr. Podvesa, her employer, ever saw the hearse or surrey but obtained a signed, notorized statement from appellees which contained a description of the carriages before the fire. Id. at 33. Appellees requested an appraisal of the value of each.

Mrs. Cusano and her employer, Mr. Podvesa, mailed thirty form-letter inquiries regarding the value of the hearse to museums, carriage associations, restorers and collectors in the United States and Canada. Id. at 25, 34. She helped Mr. Podvesa compile the eight to ten responses, many of which contained appraisals of the hearse; Cusano and Podvesa then averaged the wide range of price quotes received. Id. at 25, 34, 39-40. The responses, from persons with knowledge of and familiarity with antique carriages (the term is used generically to include hearses), were based on sales of similar Cunningham hearses or were simply an appraisal of appellees’ hearse. Cusano also testified that she did research at local museums and libraries on the value of the hearse, but she did not elaborate on the extent or depth of her research or what knowledge was gleaned from her efforts. Id. at 22, 25, 26. She testified that she researched the value of the hearse in the same manner that she would have researched the value of a rare antique automobile, but she did not amplify on what the research of the latter would entail. Id. at 28-29. Mrs. Cusano and Mr. Podvesa worked jointly on the appraisal of the hearse, but he exercised ultimate authority over the content of the appraisal; Cusano also typed the appraisal. Mrs. Cusano’s only work on and familiarity with the appraisal of the surrey was typing her employer’s appraisal of it. Id. At trial, Mrs. Cusano appraised the hearse at $10,000.00 and the surrey at $4,198.45.

Appellants’ expert, Paul Martin, Jr., was an experienced auctioneer who specialized in the auction of antiques, including horse-drawn carriages and hearses. Id. at 58. He sold three to four hundred carriages and a few hearses, some of them Cunninghams, per year in Pennsylvania and throughout the United States.' Id. at 65. Martin also appraises five to twenty carriages per year and has given expert testimony in the past regarding the appraisal of carriages. Id. at 63. He placed the value of the hearse at $4,000.00 and the surrey at $2,500.00. Martin based his appraisals on photographs of appellees’ vehicles and his inherent familiarity with the sale prices of comparable horse-drawn vehicles.

Although Martin’s qualifications as an expert are not an issue in this case we believe that he possesses such qualifications.

The trial court found in appellees’ favor in the amount of $10,077.00 which appears to be a compromise figure since there is no indication as to the value the trial court allocated to each item nor the manner in which he arrived at the total value.

Our search of the caselaw from Pennsylvania and other jurisdictions regarding the appraisal of the value of antiques reveals that the cases only address whether an appraiser’s estimate, in each particular case, was reasonable. The cases do not address the qualifications an appraiser should have in order for him or her to competently undertake the appraisal of the value of an antique. The cases do not enlighten us either as to commonly accepted practices in the appraisal of the value of antiques of any kind. We therefore approach this case as we would any other case in which expert testimony is involved.

Generally speaking, the admission of expert testimony is a matter left largely to the discretion of the trial court, and its rulings thereon will not be reversed absent an abuse of discretion. Lira v. Albert Einstein Med. Center, 384 Pa.Super. 503, 559 A.2d 550 (1989). If a witness has any reasonable pretension to specialized knowledge on the subject under investigation she may testify, and the weight to be given to her testimony is for the trier of fact. Id. Although the witness must demonstrate some particular knowledge or skill, there is no requirement that a witness acquire that knowledge as a result of formal schooling; expertise acquired by experience is expertise nonetheless. McDaniel v. Merck, Sharp & Dohme, 367 Pa.Super. 600, 533 A.2d 436 (1987).

The determination of whether a witness is a qualified expert involves two inquiries: When a witness is offered as an expert, the first question the trial court should ask is whether the subject on which the witness will express an opinion is so distinctly related to some science, profession, business or occupation as to be beyond the ken of the average layman. If the subject is of this sort, the next question the court should ask is whether the witness has sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth.

It may appear that the scope of the witness’s experience and education may embrace the subject in a general way, but the subject may be so specialized that regardless, the witness will not be qualified to testify. Id.; Norwood A. McDaniel Agency v. Foster, 117 Pa.Commw. 227, 543 A.2d 155 (1988). For example, every doctor possesses a general knowledge of the human body. But an ophthalmologist is not qualified to testify concerning the causes and treatment of heart disease. Dambacher, supra; Arnold v. Loose, 352 F.2d 959 (3rd Cir., 1965). Nor is a radiologist qualified to testify regarding proper surgical procedure in a chest operation. Dambacher, supra; Hunt v. Bradshaw, 251 F.2d 103 (4th Cir., 1958).

A witness need not be qualified as an expert to give an opinion as to value; the opinion may be based in part from information,received from others. Consylman v. Garrett, 51 Lanc.Rev. 257 (1948). While a valuation expert may consider facts and data supplied by others in arriving at her opinion, even though she had no personal knowledge thereof, she may not insert the facts and and data verbatim into her own testimony. In Re Norco Foundry Condemnation, 18 Ches.Co.Rep. 185 (1970).

When our court finds that a witness in the trial court was unqualified to express an opinion, the proper remedy is to grant a new trial. Dambacher v. Mallis, supra.

We find that Mrs. Cusano was unqualified to testify regarding the value of the antique surrey or hearse. A determination of the value of the two antique carriages is a task that is beyond the capability of the average layperson. In addition to age, an evaluation of an antique would entail knowing the history of the item, its use, ownership, manufacturer, description and design, as well as personalities and events associated with the antique. The carriages, because of their age (the hearse was 100 years old) and rarity were more akin to a “surrey with the fringe on top” than to a product manufactured today and more readily capable of valuation. Oklahoma, lyrics by Oscar Hammerstein, 2d. Therefore, pursuant to the first precondition of Dambacher, supra, only the testimony of a qualified expert knowledgeable on the subject matter should have been permitted. But, we must also determine if Mrs. Cusano possessed sufficient skill, knowledge or experience in the field of the appraisal of antique horse-drawn carriages to make it appear that her opinion would probably aid the trier of fact.

Mrs. Cusano’s only involvement with the appraisal of the surrey was typing the appraisal for her employer. She had never appraised a surrey and did not assert that she possessed any expertise that would enable her to do so. Her efforts amounted to nothing more than a secretary testifying that “this is what my employer found that the surrey was worth and I agree with him.” We therefore hold that the trial court erred when it permitted Mrs. Cusano to give an expert opinion as to the value of the surrey, and we reverse and remand this issue for a new trial regarding its value.

We now turn to Mrs. Cusano’s appraisal of the antique hearse. She had never before appraised a horse-drawn hearse; only automobiles and light trucks. In terms of technology and method and materials of construction, the latter are incapable of comparison with the former. While she testified that she possessed a New York State appraisers license, she failed to elucidate on the requirements for obtaining one or exactly what it qualified her to appraise. As previously mentioned, Cusano testified that her employer exercised ultimate authority over the appraisal of the hearse.

While Mrs. Cusano did research, we are uninformed as to the extent of the research, the sources from which she garnished her information and what knowledge was gained therefrom. Cusano and her employer averaged the wide range of appraisals received from third parties, but her apparent lack of knowledge regarding the value of antique horse-drawn carriages precluded her from determining whether the various appraisals were reasonable. As was stated earlier, there is more than just age that goes into establishing the value of an antique. While Cusano’s appraiser’s license and experience appraising automobiles and light trucks may have given the trial court the impression that Cusano’s experience embraced the subject of the appraisal of the antiques in question in a general way, the subject is so specialized that in our view this witness was not qualified to testify. Dambacher, supra; Norwood A. McDaniel Agency v. Foster, supra.

Although, in general, an owner of property, Ernsberger v. Zoning Bd. of Adjustment, 109 Pa.Commw. 373, 531 A.2d 98 (1987), Alloc, dn. in 517 Pa. 625, 538 A.2d 878, and an owner of personalty, Kremer v. Janet Fleisher Gallery, Inc., 320 Pa.Super. 384, 467 A.2d 377 (1983), may testify as to value of the property or personalty in civil cases, we believe that an antique appraiser without an ownership interest must be held to a higher standard. An appraiser of antiques must possess knowledge of or experience in dealing with the particular type of antique involved; a general appraiser’s license is not sufficient.

Judgment reversed and case remanded to the trial court with directions consistent with this opinion; jurisdiction relinquished.

WIEAND, J., concurs in the result.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

I respectfully dissent. Although I am in agreement with the majority’s statement of the law in determining whether a witness is a qualified expert, my review of the record leads me to conclude that the trial judge did not abuse her discretion by allowing the testimony of Joyce Cusano.

The Lapps contend that Cusano was unqualified to testify as an expert on the value of the hearse and the surrey. The record reveals that the Palmer’s attorney went through the proper steps to have Cusano qualified as an expert appraiser. N.T. June 24, 1988 at pp. 21-32. Testimony was elicited from Cusano that she had an appraiser’s license and had been employed by Vintage Auto Appraisal Services for four years as an appraiser. However, the trial court limited her testimony according to her experience. During her testimony the court concluded in response to opposing counsel’s objection to Cusano’s qualifications:

I’m going to accept her as qualified to testify as to two vehicles [the hearse and the surrey]. The Court will keep in mind the limitations as to her qualifications and her opinion as to the surrey in that she didn’t see it. The Court will keep this in mind in making a decision as to what part of her testimony I will accept.

N.T. June 24, 1988 at pp. 31-32.

I would not reverse the decision of the trial court to admit Cusano’s expert testimony absent an abuse of discretion. Lira v. Albert Einstein Medical Center, 384 Pa.Super. 503, 559 A.2d 550 (1989). A review of the record divulges no abuse of discretion, especially in light of the court’s above articulation of how it would weigh Cusano’s testimony.

Cusano testified that rare vehicles such as the hearse and the surrey must be carefully researched to uncover their true value. N.T. June 24, 1988 at p. 29. Cusano researched the value of the hearse, and mailed queries to 30 carriage experts, museums, collectors and restorers throughout the United States and Canada. N.T. June 24, 1988 at pp. 25, 34. Eight to ten responses proved reliable. N.T June 24, 1988 at p. 34. She also reviewed her employer’s report on the value of the hearse and the surrey and viewed photographs of both vehicles. N.T. June 24, 1988 at pp. 32-34, 36. Based upon all of this, Cusano testified that the hearse and the surrey were worth $10,000.00 and $4,198.45 respectively. N.T. June 24, 1988 at pp. 34-36.

The majority suggests that Cusano’s testimony is improper because she inserted the facts and data supplied by those who responded to the queries into her own testimony, representing that they were her own opinion. Majority opinion at pp. 29-30. This is misleading; first, Cusano did not attribute the opinions to herself. Most important, the reports that incorporated the letters in response to Cusano’s queries were moved into evidence by the Palmers’ attorney. N.T. June 24, at pp. 19-20. Thus, regardless of Cusano’s qualifications as an expert, the court had independent evidence of appraisal values before it when it determined the amount of damages the Palmers were to receive. Therefore, even if the trial court had erred in qualifying Cusano as an expert, it was harmless error; her testimony was essentially corroborative of the duly admitted documentary evidence.

The majority relies on McDaniel v. Merck, Sharp, & Dohme, 367 Pa.Super. 600, 533 A.2d 436 (1987), and Dambacher v. Mallis, 336 Pa.Super. 22, 485 A.2d 408 (1984) to support its position that Cusano should not have been permitted to testify pn the value of the two items in question. I believe that these cases support the admission of Cusano’s testimony. Although some of the witnesses who testified in McDaniel and the witness who testified in Dambacher were found to be unqualified to testify as experts, both cases support the proposition that a witness is properly qualified to give expert opinion testimony when the witness has sufficient skill, knowledge, or experience in the field or calling as to make it appear that his opinion will aid the trier in his search for the truth. McDaniel, supra; Dambacher, supra. Here, the trial judge found Cusano possessed the sufficient skill, knowledge, and experience to value the property, and we see no abuse of discretion in this finding.

The trial judge carefully considered all of the testimony before her and determined the value of the hearse and the surrey together to be $10,077.00. I would affirm the order of the trial court.

      . In their appellate brief, appellants incorrectly asserted that this appeal is from the trial court order denying appellants’ post-trial motions.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    572 A.2d 18
    Irene M. CLENDENNING, Appellant, v. Charles Delbert CLENDENNING.
    Superior Court of Pennsylvania.
    Submitted Oct. 23, 1989.
    Filed March 28, 1990.

      Wesley F. Hamilton, Zelienople, for appellant.
    Nancy T. Blewett, Butler, for appellee.
    Before ROWLEY, BECK and TAMILIA, JJ.
   BECK, Judge:

Appellant Irene M. Clendenning and appellee Charles D. Clendenning are husband and wife. In the course of their twelve year marriage they have separated three times. The last separation began when wife left the marital residence in October 1988. Immediately after leaving, wife filed a complaint for support in the Court of Common Pleas. The Domestic Relations Hearing Officer who conducted the support conference concluded that husband owed wife a duty of support and recommended that husband be ordered to pay wife $320 a month, plus arrearages. The trial court adopted this recommendation and entered a support order in the recommended amounts. Both parties were dissatisfied with this order. Therefore, both parties timely demanded a de novo hearing before the trial court, as required by Pennsylvania Rule of Civil Procedure 1910.11.

At the hearing, which was conducted on March 14, 1989, both parties testified. Wife stated that she had left husband because of several longstanding problems between them. She testified that husband was not satisfied unless she conducted herself completely in accord with his wishes and would become very angry, yelling at her and beating his cane on the table, if she did not do so. She stated that she was so afraid of him that she locked her bedroom door at night. There is no evidence that he physically abused her. Moreover, wife testified that her husband did not approve of her spending time with her relatives, would argue with her when she did and would pursue the argument even after wife attempted to avoid it by going to bed. Lastly, wife testified that she was dissatisfied with the parties’ total lack of any sex life for eleven of the twelve years of their marriage, their lack of any appreciable social life, and the fact that husband controlled all of their financial matters, keeping wife on a very small monthly allowance for her personal needs.

Husband testified that wife had been a good wife, caring for their home and cooking for him. He denied ever beating his cane on the table, but conceded that he did yell at wife and did not feel that she should spend as much time as she did with her relatives. He did not deny that he controlled the parties’ financial matters or kept wife on a small allowance, but stated that he had provided her with various things she wanted, including a hearing aid and an organ. He blamed their lack of a sex life on his health problems.

Shortly after the hearing, the trial court entered the following final order:

AND NOW, this 17th day of March, 1989, after hearing in the matter and taking into consideration arguments of counsel, the Court finds the petitioner would not be entitled to support from her husband.
The actions which she alleges were of such a nature as to necessitate her removing herself from the marital home, although some of the incidents complained of could well be considered annoying, [sic] The Court did not find that they reached such a degree as to allow her to claim she was forced to remove herself because of his inappropriate conduct.

Wife filed a timely appeal in which she asserts that she has sustained her burden of proving that she had legal reason to leave husband and is, therefore, entitled to support.

We recognize that our review of this order is limited to an inquiry into whether the trial court abused its discretion, and we cannot substitute our judgment for that of the trial court. Morley v. Morley, 283 Pa.Super. 397, 424 A.2d 524, 526 (1981). That is not to say, however, that we have no responsibility for insuring the correctness of the result reached. An abuse of discretion has been defined as follows:

An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overriden or misapplied, or the judgment is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will as shown by the evidence of record, discretion is abused.

Id. (quoting Irwin Borough Annexation Case (No. 1), 165 Pa.Super. 119, 133, 67 A.2d 757, 764 (1949)). Although this definition instructs us as to what we should not do, it is equally useful in instructing us as to what we should do. That is, we must ascertain whether the trial court’s conclusion is supported by sufficient evidence or whether the law has been overriden or misapplied. Id.

The standard by which a petition for spousal support must be judged is well established.

... the law of the Commonwealth imposes upon a spouse seeking support, the burden to show by sufficient evidence an adequate legal cause for leaving: Commonwealth ex rel. Halderman v. Halderman, 230 Pa.Super. 125, 326 A.2d 908 (1974); Commonwealth ex rel. Fried man v. Friedman, 223 Pa.Super. 66, 297 A.2d 158 (1972); Commonwealth ex rel. Young v. Young, 207 Pa.Super. 440, 217 A.2d 857 (1966); Commonwealth ex rel. Shapiro v. Shapiro, 204 Pa.Super. 135, 203 A.2d 369 (1964); Commonwealth ex rel. DiPietro v. DiPietro, 175 Pa.Super. 18, 102 A.2d 192 (1954).

Morley 283 Pa.Super. at 401, 424 A.2d at 526. See also Rock v. Rock, 385 Pa.Super. 126, 560 A.2d 199, 201 (1989) (departing spouse must justify departure, but need not establish facts entitling her to divorce); Roach v. Roach, 337 Pa.Super. 440, 487 A.2d 27, 28 (1985); Commonwealth ex rel. Halderman v. Halderman, 230 Pa.Super. 125, 128-9, 326 A.2d 908, 911 (1974) (“a wife’s failure to live with the husband does not justify the husband’s refusal to support the wife unless the separation is willful and malicious and without consent or encouragement.”)

Whether a spouse has sustained the burden of showing adequate legal cause depends heavily on the facts of the particular case, since the phrase “legal cause” is general at best. However, as we recently stated in Rock, supra, “[ajlthough this issue must be reviewed on a case-by-case basis, precedent is nevertheless helpful.” Rock v. Rock, 385 Pa.Super. at 130, 560 A.2d at 201. It is helpful because it allows us to discern more precisely how the law has defined “legal cause”.

A review of this precedent demonstrates that here wife sustained her burden of showing legal cause by proving through her own uncontradicted testimony, apparently accepted as true by the trial court, that her life with her husband had been a very unhappy one for many years because of the restraints husband placed on her and his reaction when she attempted to free herself from those restraints. Given the evidence in this record, we find a clear analogy to the case of Commonwealth ex rel. Ross v. Ross, 206 Pa.Super. 429, 213 A.2d 135 (1965), where this court found a duty of support because husband would curse wife and argue with her constantly and, if she tried to avoid the argument by going to bed, would attempt to pull her out of bed to continue the argument. We also find the more recent decision in Roach v. Roach, supra, pertinent. In Roach, a panel of this court affirmed a trial court finding of a duty of support where wife left the marital home because of husband’s frightening and erratic behavior when he was drinking, despite the admittedly general nature of wife’s testimony regarding husband’s behavior. See also Commonwealth ex rel. Cooper v. Cooper, 183 Pa.Super. 36, 128 A.2d 181 (1956) (husband’s excessive control over wife, including refusing to allow her relatives in the house and controlling all financial matters, and his otherwise annoying conduct provided her with legal cause to leave; support ordered); Commonwealth ex rel. Rovner v. Rovner, 177 Pa.Super. 122, 111 A.2d 160 (1955) (husband’s erratic behavior and constant arguing with wife provided her with legal cause to leave; support ordered).

In contrast, we find that those cases where support has been denied arose from factual patterns not at all like that presented by the evidence in this case. For example, support was denied in Commonwealth ex rel. Brown v. Brown, 195 Pa.Super. 324, 171 A.2d 833 (1961), where wife’s reason for leaving consisted merely in general complaints about how much money husband gave her or spent on her, despite the fact that she worked and did not contribute the money she earned to household expenses. Equally distinguishable is Commonwealth ex rel. Lipschultz v. Lipschultz, 179 Pa.Super. 527, 117 A.2d 793 (1955), on which the trial court herein relied. In Lipschultz, wife was denied support when her only expressed reason for leaving her husband after only a year and a half of marriage was that he generally made her life unbearable. The trial court found that wife was simply the spoiled child of wealthy parents, and this court agreed.

As the case law demonstrates the phrase adequate legal cause for leaving is not subject to exact definition. It must be interpreted based on the facts of each case. A spouse who over a period of time suffers psychological oppression may be harmed as much as a spouse who suffers physical injury. The law must recognize this harm and not force the oppressed spouse to remain in the unhappy environment in order to be entitled to support. On the other hand, the law should not impose on a spouse the duty of support where his or her mate departs the marital residence maliciously or casually on whim or caprice.

In the case before us, by husband’s own admission, wife was a “good wife” who fulfilled the responsibilities husband assigned to her throughout their twelve year marriage. On the other hand, wife testified that she was frightened of her husband, was plagued by his insistence that she spend her time with him, despite the severe limitations his physical ailments placed on him, and that he otherwise controlled her life or made her suffer for not doing as he wished. Wife did not leave husband maliciously or casually on whim or caprice, but rather because her marriage had for a long time been a source of justifiable unhappiness to her and was not improving. Under these circumstances, we find, as did the domestic relations hearing officer who first heard the testimony in this case, that husband owes a duty of support to wife.

The order of the trial court is reversed and the case is remanded for a determination of the amount of support, including arrearages, to be paid. Jurisdiction relinquished.


author: TAMILIA, Judge:

text:
    572 A.2d 223
    In re ADOPTION OF J.F. Appeal of G.F.
    Superior Court of Pennsylvania.
    Submitted Jan. 16, 1990.
    Filed March 27, 1990.

      Paul Sotak, Scranton, for appellant.
    James Van Wie, Scranton, for appellee.
    Peter C. Povanda, Scranton, for adoptive parents M.D. & M.D., participating party.
    Before McEWEN, TAMILIA and FORD ELLIOTT, JJ.
   TAMILIA, Judge:

Appellant/mother, G.F., and appellee/father, M.C.D., are the natural parents of J.F., who was born on June 9, 1976. M.C.D. and his wife, M.D., filed a petition for involuntary termination of the parental rights of appellant on November 15, 1985, which the court granted on May 25, 1988. Appellant filed exceptions to the Order which were dismissed on June 14, 1989, and she now brings this appeal. A discussion of the background of this case and the people involved is necessary before addressing the issues raised.

J.F. was born out of wedlock while her father was still residing with his parents, J.F.’s paternal grandparents. When J.F. was nine months old, appellant relinquished physical custody to appellee and his parents but still maintained contact with her daughter. The child resided in her grandparents’ home until October, 1982, even though appellee father married his present wife and moved out of his parents’ residence in April, 1979. In June, 1981, appellant and paternal grandparents filed a petition for the involuntary termination of appellee father’s parental rights. Appellant was willing at that time to voluntarily relinquish her parental rights to allow the paternal grandparents to adopt J.F. Their petition was denied, however, and in February, 1982, following a custody action by appellee father, a master issued a report and recommendation that legal custody be awarded to appellee father with liberal visitation rights to appellant and paternal grandparents. The paternal grandparents then filed a petition for blood testing to determine paternity of J.F. since they were claiming their son was not the natural father. The trial court dismissed this petition and this Court subsequently affirmed the trial court’s Order. Commonwealth ex rel M.D. v. M.D. and I.D., 343 Pa.Super. 621, 494 A.2d 488 (1985). Appellee father and his wife filed their petition for involuntary termination of parental rights on November 15, 1985, claiming appellant had evidenced a purpose of relinquishing her parental rights for at least six months. Hearings were held on three separate occasions in 1986 to dispose of the matter and the court eventually concluded appellant failed to perform parental duties for at least three years or take reasonable, affirmative action to maintain communication and relationship with her daughter. Finding appellant could have done much more to demonstrate a place of importance in her child’s life under the circumstances and that her child’s best interest was at stake, the court granted appellees’ petition.

Appellant raises ten issues on appeal as follows:

1. Did the court err in allowing M.D. as petitioner and refusing to sequester her as a witness?

2. Did the court err in allowing both Attorney Povanda and Attorney Mazzoni the right to jump up as they pleased throughout the proceeding and enter objections to the unfair disadvantage of respondent, G.F.?

3. Did the court err in not allowing relevant questions as to others’ attempts to see J.F. and the denial of visits they had to see the said child?

4. Did the court err in not allowing relevant evidence to show bias and hostility of M.D. towards G.F.?

5. Did the court err in repeatedly allowing attorneys for petitioner to ask questions about respondent’s effort to get the child returned to her?

6. Did the court err in it’s opinion in that same was made upon capricious disbelief of competent and credible evidence and not based on competent evidence?

7. Did the court err as a matter of law in suggesting since respondent did not go to court to enforce her visitation rights this showed a settled purpose even though the case was not decided by the Superior Court of Pennsylvania filed to 3119 Philadelphia 1982 until March 15, 1985?

8. Are the opinion and order contrary to the law in that petitioners have not proved by clear and convincing evidence the statutory requirements have been met?

9. Are the opinion and order contrary to the evidence in that petitioners have not proved by clear and convincing evidence that the statutory requirements have been met?

10. Did the court err in that it failed to fully discuss why the best interest of the child demand the court to terminate the rights of respondent, G.F.?

All of appellant’s issues claim trial court error in some form as it relates to the court’s decision to terminate her parental rights. After reviewing the record, we find no error on the part of the trial court in making its determination and will address the issues simultaneously except for appellant’s first issue which requires separate analysis.

Appellant claims the court erred in allowing M.D. to join her husband as a petitioner and in refusing to sequester her as a witness. She argues that M.D. had no right, under 23 Pa.C.S. § 2512, to petition for the involuntary termination of appellant’s parental rights. While we agree with appellant that M.D. was not a proper petitioning party, we find appellant suffered no prejudice by this error as M.D.’s husband, M.C.D., was a proper petitioning party.

The statute provides as follows:

§ 2512. Petition for involuntary termination.
(a) Who may file. — A petition to terminate parental rights with respect to a child under the age of 18 years may be filed by any of the following:
(1) Either parent when termination is sought with respect to the other parent.
(2) An agency.
(3) The individual having custody or standing in loco parentis to the child and who has filed a report of intention to adopt required by section 2531 (relating to report of intention to adopt).

23 Pa.C.S. § 2512(a).

M.D. did not technically have custody of J.F., although her husband M.C.D. did. “Custody” in part (3) above (the section under which the court found M.D. to be a proper petitioning party) means legal custody, not merely physical custody. In re Adoption of Crystal D.R., 331 Pa.Super. 501, 480 A.2d 1146 (1984). Therefore, it is of no consequence that J.F. resided with M.C.D. and M.D.; even foster parents who have cared for a child for years have no standing to petition for the involuntary termination of a parent’s rights. See id. M.C.D., however, was a proper petitioner and could have advanced his petition without his wife. The presence of M.D.’s name on the petition did not in any way prejudice appellant. Also we point out that a parent may not petition to terminate the parental rights of the other parent unless it is established that there is an adoption contemplated by the spouse of the petitioner.

§ 2512 Petition for involuntary termination
(b) Contents. — The petition shall set forth specifically those grounds and facts alleged as the basis for terminating parental rights. The petition filed under this section shall also contain an averment that the petitioner will assume custody of the child until such time as the child is adopted.

(Emphasis added.) In re B.E., 474 Pa. 139, 377 A.2d 153 (1977), has construed this section to mean that a parent may not terminate the other parent’s right unless adoption is contemplated. In an indirect fashion, M.D.’s participation in this case satisfied a requirement that she was the intended adopter required by In re B.E., supra.

Additionally, we find appellant was not prejudiced by the court’s refusal to sequester M.D. as a witness. Appellant claims M.D. was allowed to hear her husband’s testimony and thereby was in a position to conform her subsequent testimony to his. We find the court did not err in refusing to sequester M.D. as she had every opportunity prior to the hearing to conform her testimony to her husband’s if that was their intent.

The relevant statute sections governing involuntary termination of parental rights state:

§ 2511. Grounds to involuntary termination
(a) General rule. — The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(1) The parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
(b) Other considerations. — The court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent.

23 Pa.C.S. § 2511(a)(1), (b).

The trial court found appellant showed a finality of purpose to relinquish her parental claim when, for three years, she failed to take reasonable, affirmative action to preserve her parental rights. The court concluded that appellees proved the statutory requirements by clear and convincing evidence and appellant failed to overcome this evidence.

Parental rights may not be terminated in the absence of evidence which is clear and convincing. In Pennsylvania, courts applying this standard have required that the evidence be “so clear, direct, weighty, and convincing as to enable the [factfinder] to come to a clear conviction without hesitancy, of the truth of the precise facts in issue.”
Our scope of review in termination of parental rights cases is limited to a determination of whether the decision is supported by competent evidence. If our comprehensive review of the record does not reveal an abuse of discretion, an error of law, or insufficient evidentiary support for the trial court’s findings, the order must stand.

In re J.G.J. 367 Pa.Super. 425, 432, 532 A.2d 1218, 1220 (1987) (citations omitted).

We find the record supports the trial court’s determination, therefore, we affirm the Order terminating appellant’s parental rights. The testimony offered by appellant and her witnesses and appellees was, of course, contradictory. The trial court, however, found appellant’s testimony lacked sincerity and credibility and we agree. Appellant testified she visited her daughter at the paternal grandparents’ home until October of 1982 when J.F. moved to her father’s home. From that date through 1986, appellant had no visits with her daughter although she had been granted visitation rights. Appellant detailed her attempts to see J.F. and claims she stopped at appellees’ home once every month in 1983, 1984 and 1985 but never got to see her daughter because no one was home or no one answered the door. During this time, however, appellant never attempted legal action to enforce her visitation rights. Appellant claims this Court did not decide the issue of custody until March 15, 1985, so she could not take any legal action while the custody issue was pending. The issue before us at that time, however, was not to determine custody but to decide whether the trial court was correct in dismissing the paternal grandparents’ petition for blood testing. Appellant could certainly have pursued legal action to enforce her visitation rights without waiting for a decision from this Court on the issue of blood testing.

Appellant’s failure to take legal action is but one part of the evidence which, as a whole, indicates appellant did not take reasonable action to see her child which she could have, had she so desired. Even assuming appellees hindered appellant’s attempts to contact J.F., as appellant testified, by not answering their door or shielding J.F. in public from seeing appellant, appellant was not faced with insurmountable obstacles or barriers that were out of her control.

A parent is required to exert a sincere and genuine effort to maintain a parent-child relationship; the parent must use all available resources to preserve the parental relationship and must exercise “reasonable firmness” in resisting obstacles placed in the path of maintaining the parent-child relationship.
The law recognizes, however, that there are situations in which a custodial parent has deliberately created obstacles and has by devious means erected barriers intended to impede free communication and regular association between a noncustodial parent and his or her child. Therefore, it is incumbent upon a court, before it terminates the rights of a noncustodial parent, to consider carefully the noncustodial parent’s explanation, if any, for his or her apparent neglect. Only where the totality of the circumstances demonstrates clearly and convincingly that a parent has refused or failed to perform parental duties for a minimum period of six months may an order be entered terminating parental rights. The pertinent inquiry is not the degree of success a parent may have had in reaching the child, but whether, under the circumstances, the parent has utilized all available resources to preserve the parent-child relationship.

In re Shives, 363 Pa.Super. 225, 229-30, 525 A.2d 801, 803 (1987) (citations omitted).

We find, under the circumstances, appellant did not utilize all available resources to preserve the parent-child relationship and, in fact, has evidenced a purpose of giving up her parental rights. We agree with the trial court that appellees have proven by clear and convincing evidence appellant failed to perform her parental responsibilities for at least six months. Upon finding the requirements of 23 Pa.C.S. § 2511 were met, the court was free to examine the evidence and determine the child’s best interest. Here, the court determined the child needed a permanent, stable environment without the squabbling between appellant and appellees or appellees and the paternal grandparents. Pursuant to section 2511(b), the court was correct in making such a determination and we find no error occurred.

Order affirmed.

      . Appellee father testified this was the date of J.F.’s birth although appellant said the date of birth was September 9, 1976.

      . The trial court, in its Opinion Sur Exceptions, claims M.D. was a proper party petitioner because she resided with her husband and J.F. since her marriage. As reviewed below, this is not a basis for allowing M.D. to be a petitioner. .

      . The trial court notes that most of the litigation over the child occurred between appellee father and his parents. Although appellant was joined with the paternal grandparents in the legal actions, it is apparent the grandparents were the ones more intimately involved in seeking custody, as appellant was willing to voluntarily terminate her parental rights to allow the grandparents to adopt J.F., should they succeed in terminating M.C.D.’s parental rights.


text:
    572 A.2d 227
    COMMONWEALTH of Pennsylvania ex rel M.D. v. M.D. and I.D., H/W. Appeal of G.F.
    Superior Court of Pennsylvania.
    Submitted Jan. 16, 1990.
    Filed March 27, 1990.

      Paul Sotak, Scranton, for appellant.
    Peter C. Povanda, Scranton, for M.D. & M.D., participating party.
    Holly O’Connor, Scranton, for J.F., participating party.
    Before McEWEN, TAMILIA and FORD ELLIOTT, JJ.
   TAMILIA, Judge:

Appellant is the natural mother of J.F. who was born on June 9, 1976, and who resides with her father and his wife, M.D. Litigation between the parties, including the paternal grandparents, concerning J.F. has been extensive and lengthy. On March 25,. 1982, the master issued a report and recommendation that appellee father receive custody of J.F. with appellant having liberal visitation privileges. Exceptions to the master’s report were filed but dismissed by the court on October 6, 1982, and an appeal was taken. On March 15, 1985, this Court affirmed the trial court’s Order of October 6,1982, Commonwealth ex rel M.D. v. M.D. and I.D., 343 Pa.Super. 621, 494 A.2d 488 (1985), and eight months later, on November 15, 1985, appellee and his wife petitioned for the involuntary termination of appellant’s parental rights. Appellant had not had contact with her daughter from October, 1982, through the time of the father’s petition even though she had been granted visitation rights. After the petition for involuntary termination of parental rights was filed, however, appellant obtained counsel and, through him, requested visitation with J.F. Appellant’s request was denied at that point and she filed a motion for contempt and request for special relief, claiming appellee failed to comply with the court Order granting her visitation rights. The court denied the petition on January 22, 1986, but scheduled a hearing on the matter which was later continued because the court had already begun hearing testimony concerning the termination of appellant’s parental rights. The court decided it could make a determination as to visitation based upon the testimony presented on the termination issue. On July 2, 1986, a stipulation was signed by counsel for both parties wherein counsel for appellee acknowledged visitation had been denied based upon the filing of the petition to terminate parental rights. Following the court’s Order terminating appellant’s parental rights, the court denied appellant’s motion for contempt and request for special relief by Order of June 27, 1989.

Appellant now appeals this Order, raising ten issues:

1. Did the court err in its opinion and order denying the motion for contempt thereby allowing parties to refuse visits contrary to an order of court which was allegedly justified because an involuntary termination petition was filed?
2. Did the court err in its opinion and order justifying non compliance of an existing order based solely on the best interests of the child where there was no modification of said prior order?
3. Is the opinion and order contrary to the evidence where the court had no evidence to show a material change to allow an open violation of an order of court and no modification of said order but still allowed parties not to comply with same even when there was a stipulation signed as to certain specific facts admitting the refusal to allow visits?
4. Did the court err in refusing to sequester M.D. as a witness?
5. Did the court err in allowing M.D.’s attorneys the right to jump up as they pleased throughout the proceedings and enter objections to the unfair disadvantage of G.F.?
6. Did the court err in not allowing relevant questions as to other attempts to see J.F. and the denial of visits they had when they went to see the said child?
7. Did the court err in not allowing relevant evidence to show bias and hostility of M.D. towards G.F.?
8. Did the court err in repeatedly allowing attorneys for M.D. to ask questions about G.F.’s effort to get the child returned to her?
9. Did the court err in its opinion and Order in that same was made upon a capricious disbelief of competent and credible evidence and not based on competent evidence?
10. Did the court err in that the opinion and order are contrary to the law in that it has allowed parties to violate a custody order without any finding of a material change in circumstances and without any modification of said order?

Appellant’s issues can be condensed into one basic argument: the court erred in denying her motion for contempt when appellee willfully denied her the right to see J.F. even though a court Order gave her that right. The trial court, in an effort to protect the child, held appellant’s visitation rights in abeyance until the termination proceedings were resolved. The court found no reason to force visitation as appellant had not exercised her visitation rights at all since the 1982 Order granting her visitation, and she did not seek visitation until two months after the termination petition had been filed by appellee. We find the trial court acted properly in this situation and we affirm the Order of June 27, 1989.

Appellant claims her case is on point with In Interest of Patricia S., 326 Pa.Super. 434, 474 A.2d 318 (1984), wherein the question was presented whether the Orphans’ Court had exclusive jurisdiction to determine the custody of a child who was the subject of an adoption proceeding. Patricia S. was in the custody of a foster mother at the time her father petitioned to have custody returned to him. The court ordered the children and youth services office to implement a plan to return Patricia to her father. The foster mother filed a petition with the court claiming she had subsequently commenced adoption proceedings in the Orphans’ Court, therefore, the Orphans’ Court had exclusive jurisdiction over Patricia’s custody and the trial court should continue the case presented by father until the adoption proceedings in Orphans’ Court were completed.

Actually, this case lends more support to the trial court’s Order denying appellant’s motion for contempt than it does appellant’s position. In Patricia S., we denied the foster mother’s claim because her intent was obvious in filing the adoption proceeding:

[W]e note that if we were to decide the case as appellant urges, we would do real damage to the operation of the Juvenile Court and the laws it administers. This action began in Juvenile Court with the aim of reuniting Patty with her father. Only a few weeks before that contemplated result was to be achieved appellant sought to derail the proceedings. We cannot permit attempts like that made in this case to interfere with an ongoing proceeding.

Id., 326 Pa. Superior Ct. at 439, 474 A.2d at 320.

This reasoning may also be applied in the instant case. Appellant had no contact with her daughter for three years prior to the filing of the petition to terminate her parental rights. Two months after the petition is filed and hearings are scheduled on the matter, appellant attempts to enforce her visitation rights which had been granted three years earlier. Under these circumstances, the trial court could not force visitation but properly decided to wait and see if the father had grounds to seek termination; if he did, visitation privileges would become a nullity once appellant’s parental rights were terminated. The court had to consider the best interests of J.F. in this situation and we find the court came to the correct conclusion, given the dynamics of the situation. In view of the fact the visitation Order was coterminous with a termination proceeding, this case benefits by analysis and comparison with In re Adoption of Hamilton, 379 Pa.Super. 274, 549 A.2d 1291 (1988). In that case, post-abandonment behavior of the father, in relation to the termination proceeding, was carefully considered by this Court. It was determined that the father’s behavior was steady and consistent over a period of time indicating a serious interest on the part of the father to recultivate a parent-child relationship and a demonstrated willingness and capacity to undertake the parental role. Because the evidence clearly established the parental interest, the termination decree was vacated on a finding the trial court abused its discretion. Such is not the case here.

Following the finding by the trial court that termination was in the best interest of the child, resulting in the Order of May 25, 1988, terminating appellant’s rights, the issues presented in this appeal concerning enforcement of the visitation stipulation and alleging appellee to be in contempt for refusing visitation and the court’s action in suspending visitation, are rendered moot. By analogy, this case may be decided on the principle flowing from In re D.K.W., 490 Pa. 134, 415 A.2d 69 (1980). There, the Supreme Court held that termination of the natural mother’s rights under the Adoption Act rendered the issue of custody under the Juvenile Act moot and it was unnecessary to make an adjudication of dependency to enable a grant of legal custody to an appropriate agency or individual. Termination forecloses any further consideration of derivative parental rights of the parent whose rights are terminated, and ancillary proceedings regarding those rights become irrelevant. The Order of the trial court in this matter must, therefore, be affirmed.

Order affirmed.

      . This Court affirmed the trial court’s Order of May 25, 1988, terminating appellant’s parental rights under 23 Pa.C.S. § 2511(a). See companion case of In re: Adoption of J.F., 392 Pa.Super. 39, 572 A.2d 223 (1989).

      . Issues 4-9 are identical to six of the issues raised in In re: Adoption of J.F., supra. As we said in that Opinion, we find no reversible error on the part of the trial court in its rulings concerning the procedure and conduct of the hearings.

      . The termination of appellant’s parental rights was affirmed by this Court in In re Adoption of J.F., 392 Pa.Super. 223, 557 A.2d 223 (1990).


author: PER CURIAM:

text:
    572 A.2d 230
    COMMONWEALTH of Pennsylvania, Appellee, v. John MONAHAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 11, 1989.
    Filed March 29, 1990.

      John W. Packel, Asst. Public Defender, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for the Com., appellee.
    Before BECK, JOHNSON and MONTGOMERY, JJ.
   PER CURIAM:

Appellant, John Monahan, was convicted of unauthorized use of an automobile, receiving stolen property, theft and defiant trespass following a bench trial before the Honorable Anthony J. DeFino. Post-trial motions were denied and appellant was sentenced to twenty-three (23) months imprisonment on the unauthorized use of an automobile charge and two (2) years consecutive probation on the theft charge. Appellant was ordered to pay restitution. This direct appeal followed. We affirm.

Appellant first contends that the lower court erred by denying his motion to dismiss under Rule 1100 because he was not tried within 365 days and second by refusing to dispose of this motion prior to trial.

The complaint in this case was filed on July 1, 1987, resulting in an original Rule 1100 run-date of December 28, 1987. At this time, Rule 1100 required trial to commence within 180 days excluding delay attributable to the defendant or his attorney, judicial delay, or other delay occurring despite the Commonwealth’s due diligence. (Original Rule) The preliminary hearing was continued once, from July 9 to July 20, 1987, because the complaining witness failed to appear. Trial was originally listed for November 5, 1987, but was postponed until January 26, 1988, because a Commonwealth witness was not available. Meanwhile, on December 31, 1987, Rule 1100 was amended to extend to 365 days the time within which trial must commence. (Interim Rule) This amendment retained the exclusions caused by the accused, e.g., unavailability of defendant or his attorney, waiver, or delay caused by defense-requested continuances, but was silent on the excludability of time due to judicial delay. Shortly after this amendment, the Pennsylvania Supreme Court, in obvious recognition of the heavy backlog of cases in Philadelphia County, ordered the Philadelphia Court of Common Pleas to try only cases in which the defendant was in custody. This directive remained in effect until May 27, 1988, when the Court permitted the trial of serious bail cases. At the same time, the Supreme Court directed the Philadelphia courts to suspend the disposition of Rule 1100 motions. Appellant’s trial was held on August 10, 1988, at which time the court took evidence on appellant’s Rule 1100 claim but deferred ruling on it. On September 20, 1988, the rule was again amended to provide that a defendant is entitled to discharge under the rule only if the Commonwealth was not duly diligent in bringing him to trial. (Final Rule) On October 3, 1988, the court resumed Rule 1100 dispositions. The court ultimately denied appellant’s motion to dismiss.

Relying on Commonwealth v. Palmer, 384 Pa.Super. 379, 558 A.2d 882 (1989), appellant contends that his case is governed by the Interim Rule. Since his trial was not held within 365 days, appellant claims his right to discharge is absolute.

Clearly under either the Original Rule or the Final Rule, appellant would not be entitled to discharge. Under the Original Rule, both the unavailability of a Commonwealth witness and the court’s backlog are valid reasons to allow an extension of time. Commonwealth v. Lafty, 333 Pa.Super. 428, 482 A.2d 643 (1984); Commonwealth v. Bell, 386 Pa.Super. 164, 562 A.2d 849 (1989). The Final Rule specifically provides that, if the court determines that the Commonwealth exercised due diligence and the circumstances occasioning the postponement are beyond the Commonwealth’s control, a motion to dismiss based on a violation of Rule 1100 shall be dismissed. Pa.R.Crim.P. 1100(g). On this appeal, appellant does not argue that the Commonwealth was not duly diligent.

To avoid this result, appellant contends that the Interim Rule, and only the Interim Rule, can be applied to his case. In so arguing, appellant asks this court to either ignore our Supreme Court’s orders or -determine that these orders were invalid. Neither this court nor the trial court has the power to act contrary to decisions of the Supreme Court. See, e.g., Commonwealth v. Edrington, 317 Pa.Super. 545, 464 A.2d 456 (1983). Under all the circumstances of this case, therefore, we cannot say the trial court erred in delaying appellant’s trial or in refusing to discharge appellant because of the delay.

For the same reason, appellant’s claim that the trial court erred in refusing to dispose of his Rule 1100 motion prior to trial must be rejected. The court was under a directive of the Supreme Court not to dispose of any such motions. It was powerless to disobey that directive.

Judgment of sentence affirmed.

BECK, J. concurs in the result.


author: HOFFMAN, Judge:

text:
    572 A.2d 232
    Mark A. GEORGIANA, Appellant, v. UNITED MINE WORKERS OF AMERICA, INTERNATIONAL UNION, an Unincorporated Association, by Richard TRUMPKA, Trustee Ad Litem, and District 4, United Mine Workers of America, an Unincorporated Association by David Menhart, Trustee Ad Litem, Richard Trumpka, also known as Richard L. Trumpka, as President of United Mine Workers of America, International, and David Menhart, also known as David W. Menhart, Individually and as President of District 4, United Mine Workers of America, an Unincorporated Association, and Stephen Webber, also known as Stephen F. Webber, and James T. Davis, Individually and as a General Partner in the Firm of Davis & Davis.
    Superior Court of Pennsylvania.
    Argued Nov. 14, 1989.
    Filed March 27, 1990.

      Robert A.W. King, Greensburg, for appellant.
    Kathryn L. Simpson, Pittsburgh, for Davis, appellee.
    Before CIRILLO, President Judge, and WIEAND and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from an order granting appellees’ preliminary objections in the nature of a demurrer and dismissing appellant’s complaint for wrongful use of civil proceedings. Appellant contends that the trial court erred in granting the demurrer because it failed properly to consider all of the well-pleaded facts in his complaint. For the following reasons, we reverse the order below and remand for proceedings consistent with this Opinion.

On December 23, 1985, the United Mine Workers of America and District 4, UMW (hereinafter “UMW”), filed a complaint against appellant and his wife, R. Diane Georgiana, accusing Mrs. Georgiana of fraud in connection with her acceptance of funds for referring UMW members to Alexander Pentacost, Esq., for legal advice. In their complaint, the UMW asked the court to freeze the couple’s joint bank account and order them to return all of the payments they received from UMW members. That action was terminated on March 4, 1986 when the UMW and Mrs. Georgiana entered into a settlement agreement pursuant to which the complaint against her and appellant were dropped.

Appellant filed the instant action on December 16, 1986, alleging that the UMW wrongfully had brought civil proceedings against him, and seeking damages of $10,000. The UMW filed preliminary objections on February 9, 1987, in the form of a motion for more specific pleading and for demurrer. On March 13, 1987, the Court of Common Pleas of Fayette County, per the Honorable Conrad B. Capuzzi, granted the UMW’s motion for more specific pleading, but denied the demurrer, holding that appellant had pleaded sufficient facts in his complaint that would support an action against the UMW for wrongful use of civil proceedings. Appellant timely filed his amended complaint on May 14, 1987.

On December 21, 1987, appellant filed a motion to join as additional defendants the UMW’s prior counsel, James T. Davis, and Davis’ law firm, Davis & Davis (appellees herein). The motion was granted. On March 7, 1988, appellees James T. Davis and Davis & Davis filed preliminary objections in the nature of a demurrer to appellant’s amended complaint. On March 15, 1989, over one year later, the Court of Common Pleas of Fayette County, per the Honorable William B. Franks, sustained the preliminary objections of James T. Davis and Davis & Davis, ruling that appellant could not recover for wrongful use of civil proceedings because the action underlying the suit did not terminate in appellant’s favor. On March 30, 1989, upon praecipe of appellant, the March 15 order was reduced to judgment. This timely appeal followed.

Appellant argues that the trial court erred in granting appellees’ demurrer because it failed properly to consider all of the well-pleaded facts in his complaint. Specifically, he argues that the trial court should have denied appellees’ demurrer because his amended complaint contains well-pleaded factual allegations that, if proven, would permit him to recover against appellees for wrongful use of civil proceedings. The principles governing our review of the granting of a demurrer are well-settled.

A preliminary objection in the nature of a demurrer “admits all relevant facts sufficiently pleaded in the complaint, and all inferences fairly deducible therefrom, but not conclusions of law or unjustified inferences.” Preliminary objections can properly be sustained and a complaint dismissed only in cases that are clear and free from doubt. Any doubt must be resolved against the moving party. Only where it appears with certainty that, upon the facts averred, the law will not permit recovery can the complaint be dismissed and summary judgment entered for the defendant.

Aetna Electro Co. v. Jenkins, 335 Pa.Super. 283, 285, 484 A.2d 134, 135 (1984) (citations omitted); see also Shaffer v. Stewart, 326 Pa.Super. 135, 141-42, 473 A.2d 1017, 1020 (1984). Thus, in evaluating appellant’s claim, we must accept as true all well-pleaded facts in his complaint and determine if appellant has stated a cause of action for wrongful use of civil proceedings.

The Pennsylvania legislature has set forth the elements of a cause of action for wrongful use of civil proceedings as follows:

(a) Elements of action. — A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings [if]:
(1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and
(2) The proceedings have terminated in favor of the person against whom they are brought.
(b) Arrest or seizure of person or property not required. —The arrest or seizure of the person or property of the plaintiff shall not be a necessary element for an action brought pursuant to this subchapter.

42 Pa.C.S.A. § 8351. As Judge Wieand noted in Shaffer v. Stewart, supra, in order to recover under the statute,

three essential elements must be proved: “(lXthat the underlying proceedings terminated favorably to the [plaintiff]; (2) that the defendant caused those proceedings to be instituted without probable cause; and (3) malice.”

326 Pa.Super. at 140, 473 A.2d at 1020 (quoting Junod v. Bader, 312 Pa.Super. 92, 95, 458 A.2d 251, 253 (1983)). We also should note that the statute is in conformity with the Restatement (Second) of Torts, § 674 (1977), see Shaffer v. Stewart, supra 326 Pa.Super. at 140, 473 A.2d at 1020 (1984), and this Court has cited section 674 of the Restatement with approval in several other cases involving claims of wrongful use of civil proceedings. See Junod v. Bader, supra; Dietrich Indus., Inc. v. Abrams, 309 Pa.Super. 202, 455 A.2d 119 (1982); DeSalle v. Penn Cent. Transp. Co., 263 Pa.Super. 485, 398 A.2d 680 (1979). With these standards in mind, we turn to the case at bar.

The reasoning behind the trial court’s granting the demurrer was as follows. The trial court noted that, in construing the phrase “terminated in favor of the person against whom they are brought,” § 674 of the Restatement directs reference to Restatement § 660, which governs “indecisive termination” of criminal proceedings. See id. § 674 comment j. Section 660(a) in turn provides that a termination of proceedings pursuant to an agreement of compromise is not “termination in favor of the person against whom they are brought” for purposes of actions premised on wrongful use of civil proceedings. Id.; see also Junod v. Baker, supra (§ 660(a), comment c cited for proposition that when charges dropped because of compromise, accused valued peace more than innocence and court will not allow second action where accused asserts claim of innocence earlier abandoned). Because the proceedings against appellant in the initial suit were terminated by agreement, the trial court found that the underlying lawsuit had not “terminated in appellant’s favor.” As a result of this finding, the trial court held that appellant’s complaint failed to state a cause of action under 42 Pa.C.S.A. § 8351(a)(2).

Appellant contends that the trial court erred in finding that the settlement agreement which terminated the underlying suit barred him from recovering under § 8351 because the allegations in his complaint, if accepted as true, would establish that he was not a party to that agreement. This argument is fully supported by a review of appellant’s amended complaint. Appellant alleged that, although he was a party defendant in the underlying suit, the charges against him were dropped pursuant to a settlement agreement entered into only by Mrs. Georgiana. See Amended Complaint at 5, para. 16-17 (R.R. at 68a). Appellant also specifically averred that “no settlement was demanded from nor reached with [appellant]”. Id. at 5, para. 17 (R.R. at 68a). From these facts, appellant argues as follows:

At no time was an agreement of compromise discussed or reached between the UMW and [appellant]____ Furthermore, at no time did [appellant] request or accept abandonment of the underlying proceedings out of mercy. [Appellant] was not given the opportunity to consent to any type of compromise as settlement was never discussed with him. The underlying suit containing charges against him was simply discontinued upon settlement with [appellant’s wife] ..., without opportunity for [appellant] to show the allegations to be false and clear his name.

Brief for Appellant at 10. Appellant therefore submits that the prior suit did not terminate as a result of a compromise made by him, and thus the court’s reliance on the construction of “agreements of compromise” suggested by Restatement § 660 is inapplicable.

The trial court rejected appellant’s argument by stating that “the [underlying] action was filed at one number ... and named both [appellant’s wife and appellant] as defendants. Thus the settlement ... is effective against both____” Trial Court Opinion at 3. We cannot agree that the unilateral action of one party in negotiating a settlement necessarily binds another party who did not participate in that settlement, simply because the parties are named defendants in the same suit. We recognize that a settlement with one party may be “effective” against another party in the sense that a fact-finder could determine that the withdrawal of the entire suit does not represent a termination in favor of the second party. Such a conclusion may particularly be likely when, as here, the party defendants are husband and wife. For example, the fact-finder could determine that, even though appellant himself did not negotiate the settlement, his wife acted on his behalf in order to prevent an inquiry into her husband’s conduct. Cf Restatement (Second) of Torts, § 660(a), Comment b (“There are two factors common to the situations dealt with in Clauses (a), (b), and (c): First, the charge is withdrawn for a cause not incompatible with the guilt of the accused or the possibility of obtaining his conviction; second, the withdrawal is at the request or with the consent of the accused or is due to something done by him or on his behalf for the purpose of preventing a full and fair inquiry into his guilt or innocence.’’) (emphasis supplied). However, we are convinced that the question whether one defendant’s settlement of an action should bind another defendant must depend on the particular circumstances surrounding that settlement, and not upon the status of the parties. We note that this conclusion is in conformity with comment j to § 674 of the Restatement, which governs the effect of a withdrawal of civil proceedings:

Whether a withdrawal or an abandonment constitutes a final determination of the case in favor of the person against whom the proceedings are brought and whether the withdrawal is evidence of a lack of probable cause for their initiation, depends upon the circumstances under which the proceedings are withdrawn.

Id. Accordingly, we hold that the effect of appellant’s wife’s settlement is a question that is properly reserved to the factfinder, and was not a proper ground upon which to grant the demurrer.

In summary, a review of appellant’s amended complaint discloses that he has alleged sufficient facts to recover for wrongful use of civil proceedings. Therefore, we reverse the order granting appellees’ demurrer, and remand for proceedings consistent with this Opinion.

Reversed and remanded. Jurisdiction relinquished.

      . Preliminary objections were granted only in favor of James T. Davis and Davis & Davis. Thus, the United Mine Workers of America and District 4, UMW, are not parties to this appeal.

      . Appellant also contends that the court abused its discretion in sustaining appellees’ preliminary objections in the nature of a demurrer because it failed to act in conformity with Judge Capuzzi's earlier decision in which he denied a demurrer in the same case. Because of our resolution of appellant’s first claim, we need not address the merits of this argument.


author: POPOVICH, Judge:

text:
    572 A.2d 694
    COMMONWEALTH of Pennsylvania, Appellee, v. Arthur LESTER, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 14, 1989.
    Filed Feb. 23, 1990.
    Reargiiment Denied May 2, 1990.

      Charles J. Cunningham, III, Philadelphia, for appellant.
    David S. Thalheimer, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CAVANAUGH, MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge:

In this factually unique appeal, Arthur Lester, appellant, alleges that the police promised him sexual rendezvous with his wife and lovers in exchange for his cooperation/confession in a murder investigation. (The record indicates that the police honored their promises.) Lester contends that his trial counsel was ineffective for failing to introduce evidence at the suppression hearing to demonstrate that his confession was involuntary since it was induced by the promises of sexual services made by the police. Lester further asserts that counsel’s stewardship was deficient in that counsel did not advise Lester to testify on his own behalf at the suppression hearing.

After a thorough review of the record in this case, and based on our evaluation of Lester’s contention and the pertinent law, we conclude that promises of sexual services to a prisoner constitute an inducement sufficient to compel an involuntary confession. Moreover, we find that trial counsel should have elicited Lester’s testimony at the suppression hearing with regard to whether his confession was voluntary. Accordingly, we reverse, vacate judgment of sentence and remand for a new trial.

The facts of this case are set forth below. On September 22, 1978, Ronald Pope was shot to death while getting out of his car. The next day, Lester told his friend John Mears that he, along with Mark Garrick and William “Bookie” Timmons, had killed Pope. In 1983, following Mears’ arrest for armed robbery, Mears informed the police that Lester was involved in Pope’s homicide. Thereafter, on November 15, 1983, Lester was arrested and transported from a federal penitentiary in New York, where he was incarcerated, to Philadelphia to stand trial.

After receiving Miranda warnings, Lester admitted to the police that he had carried a gun and was at the crime scene when Pope was shot. He stated, however, that he did not participate in the shooting. Lester later filed a motion to suppress this statement. The motion was denied. Following a jury trial, Lester was found guilty of voluntary manslaughter. Nunc pro tunc post-verdict motions and amended post-verdict motions were heard and denied. Lester was sentenced to not less than sixteen nor more than 120 months incarceration, with credit for time served. His petition for reconsideration of sentence was denied. This appeal followed.

It is well settled that the law presumes counsel’s effectiveness. Commonwealth v. Ellis, 354 Pa.Super. 11, 510 A.2d 1253 (1986). However, a defendant may sustain an allegation of ineffective assistance if he can demonstrate that his claim is of arguable merit, that counsel had no reasonable basis for his/her action or inaction, and that prejudice resulted from the ineffectiveness. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

In Commonwealth v. Carter, 377 Pa.Super. 93, 546 A.2d 1173 (1988), we set forth the test for determining whether a statement was voluntarily given:

In determining whether a confession, obtained as a result of a custodial interrogation, is admissible, the accused's Miranda rights must have been explained to him and he must have knowingly, voluntarily and intelligently waived these rights. Further, the Commonwealth must show by a preponderance of the evidence that the confession was voluntary. The test for determining whether the confession was voluntary and the waiver of the Miranda rights was valid is a totality of the circumstances. Factors which must be looked to in reaching this determination include the following: the duration and methods of interrogation, the conditions of detention, the manifest attitude of the police toward the accused, the accused’s physical and psychological state, and any other conditions which ‘may serve to drain one’s powers of resistance to suggestion and undermine his self-determination.’

Id., 377 Pa. Superior Ct. at 101-02, 546 A.2d at 1177 (citations omitted). See also Commonwealth v. Schneider, 386 Pa.Super. 202, 206-207, 562 A.2d 868, 870 (1989) (accord).

In the instant case, the record indicates that Lester was in custody for approximately twelve hours on the day that he gave the inculpatory statement to the police regarding his involvement in the Pope homicide. This includes the time that it took to drive from the federal penitentiary in New York to Philadelphia. There is also uncontested evidence that Lester was visited by three women who, at separate times, engaged in sexual relations with him at the Police Administration Building in the months following his confession. The Commonwealth argues that there is no connection between the inculpatory statement and the women’s visits with Lester because the sexual incidents occurred “well after defendant made his incriminating statement, in some cases, as much as three months later.” (Commonwealth’s letter brief, at 9). The Commonwealth posits, therefore, that the women could not have influenced Lester’s statement. We disagree.

All three women testified at the hearing on post-verdict motions that they were admitted to the Police Administration Building to see Lester. They were each instructed to sign the “log-in” book, which was introduced at the hearing to corroborate their testimony. (N.T., October 25, 1988, at 20-21). Each woman was permitted to visit freely with Lester in a closed, private room for significant periods of time. All three women testified that they engaged in sexual intercourse with Lester during their visits. Additionally, Lester testified that he was taken to the Police Administration Building on five or six occasions. Those dates matched the dates of the women’s visits. (N.T., March 11, 1988, at 6-8).

We find that the fact that the women were provided to Lester after his confession strengthens his case, not damages it. Promises of sexual accommodations would necessarily precede an inculpatory statement. Were it not for this inducement of future gratification, Lester might not have admitted his involvement in the Pope homicide. Conversely, if the women were provided to Lester before he confessed, he would not have had any impetus to “make a deal” afterwards. Consequently, we find that the police’s offer of sex constituted a provocation powerful enough to coerce Lester to cooperate.

We base our decision, in part, on the recent holding by the Pennsylvania Supreme Court in Commonwealth v. Gibbs, 520 Pa. 151, 553 A.2d 409 (1989). Therein, the court addressed the issue of whether a police officer’s statement to a defendant, following Miranda warnings, constituted an inducement sufficient to compel an involuntary confession. The court held that the officer’s mere comment, “the only thing is I would tell the District Attorney you cooperated for whatever good that would be” tainted the defendant’s subsequent admissions. It stated:

By conveying the distinct impression that the district attorney would be told of his cooperation in giving a confession on the spot, there occurred an inescapable inducement which cannot be condoned under our law. For while we recognize that the police have a legitimate responsibility to conduct investigations, including interrogations, criminal suspects have a constitutional right to make up their own minds as to whether they want the Miranda protections. Promises of benefits or special considerations, however benign in intent, comprise the sort of persuasion and trickery which easily can mislead suspects into giving confessions. The process of rendering Miranda warnings should proceed freely without any intruding frustration by the police. Only in that fashion can we trust the validity of subsequent admissions, for if the initial employment of Miranda is exploited illegally, succeeding inculpatory declarations are compromised. Misleading statements and promises by the police choke off the legal process at the very moment which Miranda was designed to protect.

Id., 520 Pa. at 155, 553 A.2d at 410-11. See also Commonwealth v. Hubble, 509 Pa. 497, 504 A.2d 168 (1986). We note that the Gibbs court restricted its decision to situations where improper offers by the police in exchange for cooperation by the defendant followed the administration of Miranda warnings. As such, the instant case falls squarely within the perimeters of Gibbs.

At the hearing on post-verdict motions, Detective Lawrence Gerrard testified that Lester was advised of his rights at the Police Administration Building following the seven-hour ride, in police custody, from New York to Philadelphia. (N.T., October 24, 1988, at 10, 15, 38-39). He stated that Lester waived his right to remain silent and gave an incriminating statement to the police. Id. at 39. Gerrard also testified that Lester was not coerced, threatened or induced in any way during the course of his statement. Id. at 38-39. He did not deny that Lester was allowed subsequent visits by three women at the Police Administration Building. Instead, he stated that it was common police practice to permit “family members” to visit with the prisoners. However, he testified that “[w]ith a prisoner, he’s constantly watched. I mean, he’s handcuffed to a chair, in a room with a two-way glass with a door open ...” Id. at 44. Detective Gerrard also responded in the negative to defense counsel’s question: “[W]hen someone goes to the Police Administration Building to meet with a family member, do you allow them to go in the interview room and close the door when they meet with a family member who is a prisoner?” Id. at 49. This testimony directly conflicts with that of all three women.

The women testified that they went to the Police Administration Building, met with Detectives Gerrard and/or Gilbert, signed the log book, and were escorted to Lester’s room. The room was described as “a plain room, a chair, a table. It had a double glass window. That was it.” (N.T., May 12, 1988, testimony of Patricia Ann Hourde, at 7). Each woman testified that she had sexual intercourse with Lester. Lester was not handcuffed while he was in the room. Id. at 13. All three women knew Lester previously and visited him willingly. (See also N.T., April 22, 1988, testimony of Mary Louise Whack and Diane Adams, at 3-19). Importantly, the Commonwealth does not contest that Lester was provided with sex while he was incarcerated.

As one would expect, the law is sparse in this area. We are unable to find cases that indicate that promises of sex will render a confession involuntary per se. However, in light of the relevant case law, coupled with the evidence adduced at the post-verdict motion hearing, we are persuaded that a causal relationship existed between Lester’s statement to the police and the women’s subsequent visits to the Police Administration Building. See Commonwealth v. Peters, 473 Pa. 72, 86, 373 A.2d 1055, 1062 (1977) (promises of immunity will render confessions involuntary per se); Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973) (promises of leniency combined with the totality of the circumstances may render a confession involuntary); Commonwealth v. Elslager, 349 Pa.Super. 217, 502 A.2d 1354 (1986) (statements given by defendants as a result of certain police promises should have been suppressed). It is difficult to fathom that Lester would have been given access to the three women so freely or would have confessed so readily if not the result of a bargain. We echo the language of the Gibbs court. Here, “the improper suggestion of a benefit in return for cooperation poisoned the interrogation system.” Gibbs, 520 Pa. at 156, 553 A.2d at 411.

Since Lester’s assertion has merit, we must look to the second prong of the Pierce test. The Commonwealth argues that the decision whether to testify was Lester’s alone. Commonwealth v. Wallace, 347 Pa.Super. 248, 254, 500 A.2d 816, 819 (1985). It further contends that Lester’s trial counsel pursued a reasonable strategy in encouraging Lester not to testify at his suppression hearing. The prosecutor was eager to convict Lester, according to counsel, because Lester reneged on his deal with the prosecutor to testify against Mark Garrick in another proceeding. (N.T., February 3, 1988, at 33).

Trial counsel confirmed at the post-verdict motion hearing that he informed Lester of his option to testify and left the ultimate decision to him. {Id. at 9, 33-34). However, in light of Lester’s disclosures at the post-verdict evidentiary hearing, it is clear that counsel should have encouraged Lester to testify at the suppression-motion level. {See N.T., October 24, 1988, testimony of Arthur Lester, 70-152). Adducing such evidence at a suppression hearing is different than at a trial where a defendant may be prejudiced by his assertions. See Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 976, 19 L.Ed.2d 1247 (1968); Commonwealth v. Wheeler, 518 Pa. 103, 113, 541 A.2d 730, 735 (1988); Commonwealth v. Melson, 383 Pa.Super. 139, 145, 149, 556 A.2d 836, 838-39, 840-41 (1989); Pa.R.Crim.P. 323(h).

At the post-verdict motion hearing, Lester detailed the circumstances surrounding his confession to the police and repeatedly stated that he was promised sexual visits in return for his statement. (See N.T., October 24, 1988, at 84-85, 91, 100-01). If Lester had testified to this effect at his motion to suppress hearing, he may have succeeded in suppressing his coerced statement. His case would have proceeded to trial without the confession. Under the circumstances of the instant case, there existed a reasonable probability that, but for trial counsel’s tactics, the outcome of Lester’s trial would have been different. See Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Petras, 368 Pa.Super. 372, 376, 534 A.2d 483, 484-85 (1987). Cf. Commonwealth v. Rivers, 383 Pa.Super. 409, 413, 557 A.2d 5, 7 (1989) (sets forth test to determine whether counsel is ineffective for not putting a defendant on the stand at trial); Commonwealth v. Fowler, 362 Pa.Super. 81, 87, 523 A.2d 784, 787-88 (1987); see also Commonwealth v. Wallace, 347 Pa.Super. 248, 254, 500 A.2d 816, 819 (1985).

Even the judge expressed his concern during a sidebar colloquy at the hearing on post-verdict motions:

THE COURT: Was there a suppression hearing in this matter?
MR. POWELL: Yes, Judge.
THE COURT: Did the Suppression Hearing cover what allegedly took place in the ride back from Lake Placid, New York, and the statement that allegedly was given at 7:45?
MR. POWELL: Barely.
THE COURT: What do you mean by “barely?” If it is a Suppression Hearing you have to have something in there about the statement not being voluntary or a result of some inducement or something, some threats or something.
MR. POWELL: Well, what I was showing you this morning, Your Honor, final pages of the Suppression Hearing indicates that Mr. Gaskins intended to put the defendant on the stand to testify precisely to what he’s testifying to now and didn’t, and that the defendant is testifying to what he would have testified to had he been put on the stand at the motion to suppress and the reason why he wasn’t placed on the stand at the motion to suppress both of which go to the ineffectiveness issue plus as I read the law the voluntariness issue is always at stands even at post-verdict motions and the Court can decide on that now and that’s why we’re going through it again. Now, the testimony elicited at the motion to suppress was so minimal as I remember it, and I did read it yesterday, it was basically did you speak with him on the way back, did you make him any promises or threats.
THE COURT: You are correct that it can be raised again, but that does not necessarily mean I will rehear testimony that has been given previously and that is why I asked you the question. If you are going to give me testimony that was already given to a suppression court judge then you are wasting your time and mine too.
MR. POWELL: No, Judge, I’m not.
THE COURT: Unless you are going to give me something that was not given to the suppression court judge.
THE COURT: All right.
MR. COLIHAN: That’s correct, Judge, the subject matter in detail was not covered. The area, it was covered by the testimony of both the detectives.

(N.T., October 24, 1988, at 79-81).

The record reflects that trial counsel’s normal practice was to discuss his clients’ options and their consequences with them, and based on that information, allow them to decide whether to take the stand. (N.T., February 3, 1988, at 9, 34). While this procedure is proper in most circumstances, under the facts of the instant appeal Lester’s case would not have been harmed, and could only have been strengthened, if he had been advised to take the stand at the suppression hearing. See Commonwealth v. Stenhach, 356 Pa.Super. 5, 13, 514 A.2d 114, 118 (1986) (“effective assistance of counsel includes the requirement that counsel investigate the client’s claims and use the results of investigation in defense of the accused.”). Lester’s trial counsel acknowledged that Lester had informed him prior to the suppression hearing that the police made various promises to him in return for his statement. (N.T., February 3, 1988, at 6, 17). Nevertheless, counsel advised Lester not to testify on his own behalf, either at the motion to suppress hearing or at trial. (Id. at 22, 33; see also N.T., October 24, 1988, at 112-13).

Moreover, to corroborate his assertion that he was induced by promises of sex, Lester wanted to call at least one of the three women to testify that she had engaged in sexual relations with him. Counsel determined that “their testimony on the central issue would not be helpful.” (N.T., February 3, 1988, at 10; 41). Consequently, no testimony was offered at the suppression hearing, aside from that of the detectives, regarding the promises to Lester of visitations including sexual encounters.

The Pennsylvania Supreme Court has stated:

[t]here are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error, [ ...] and we adhere to the view that a conviction founded in whole or part on an involuntary confession denies a defendant due process of law and constitutes reversible error, regardless of whether there is ample evidence aside from the confession to sustain the conviction.

Commonwealth v. Perry, 475 Pa. 1, 7, 379 A.2d 545, 548 (1977) (citations omitted). We find that the claim underlying Lester’s ineffective assistance of counsel issue has merit. Moreover, we conclude that trial counsel had no reasonable basis for recommending that Lester not take the stand on his own behalf at the motion to suppress hearing. Finally, we find that Lester was prejudiced as a result of counsel’s performance. Accordingly, we reverse, vacate judgment of sentence and remand for a new trial.

Reversed and remanded. Judgment of sentence vacated. Jurisdiction relinquished.

      . Lester actually raises three issues for our review:
      (1) whether his trial counsel was ineffective for misadvising him as to whether to take the stand at his suppression hearing and for failing to call certain corroborating witnesses; (2) whether his trial counsel was ineffective for failing to interview eyewitnesses to the homicide; and (3) whether his trial counsel was ineffective due to a conflict of interest, in that he represented Lester’s unindicted, co-conspirator in a prior proceeding. Since we find that Lester’s first claim is meritorious and reverse based on our analysis of that issue, we do not reach the merits of his last two contentions.

      . Although the detective who transported Lester from New York to Philadelphia testified that he did not ask him any questions during the ride and that he did not coerce or threaten him in any way during the course of Lester’s statement (N.T., October 24, 1988, at 38-39), Lester alleges that he was subjected to a "tag team method of interrogation, [ ... ] and other more subtle influences” prior to his confession. (Appellant’s brief, at 8).

      . Conversely, Lester repeatedly testified that he asked to speak with his attorney before he confessed. (See N.T., October 24, 1988, at 77-78, 82-83).

      . Although he also contends that he was coerced by police promises of drugs and concurrent prison time, Lester did not present corroborating testimony regarding these promises at the post-verdict motion hearing.

      . At the suppression hearing itself, during a sidebar colloquy, trial counsel indicated that he was aware of the promises. Yet, he did not have Lester testify as to their validity, even though they comprised the basis of the suppression motion. (Ñ.T., February 15, 1985, at 47-48).