author: POPOVICH, Judge:

text:
    652 A.2d 843
    Danielle WAWRYKOW, Parent and Guardian of David John Simonich, III, Appellant, v. David John SIMONICH, Sr., Administrator of the Estate of David John Simonich, Jr., Deceased, and Nancy Simonich, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 4, 1994.
    Filed Dec. 29, 1994.
    Robert A. Lebovitz, Pittsburgh, for appellant.
    James J. Ross, Ambridge, for appellees.

      Before CAVANAUGH, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This case involves an appeal from the March 16, 1994, order of the Court of Common Pleas of Beaver County, Orphans’ Court Division, denying a motion for exhumation and deoxyribonucleic acid (DNA) testing of the body of David John Simonich, Jr. (hereinafter “Simonich, Jr.”), by the appellant, Danielle Wawrykow, parent and guardian of David John Simonich, III (hereinafter “Simonich, III”). We reverse.

The facts of record disclose that Simonich, Jr. died in a vehicular accident on February 7, 1991, following which suit was instituted against the Pennsylvania Department of Transportation and a local tavern by Simonich, Sr., administrator of the decedent’s estate, to recover for the death of his son.

On November 19, 1992, the appellant filed a claim against the decedent’s estate on behalf of Simonich, III, for its refusal to acknowledge the appellant’s child as that of the decedent. In support thereof, the appellant prepared a legal memorandum asserting that she was the mother of the minor-child (born July 15, 1991) and that the child was conceived at a time when the decedent was the only person with whom she had sexual relations.

After delivery, the appellant listed the decedent on the certificate of birth as the father. Also, in the memorandum, the appellant averred that the 2/é-year-old child’s appearance resembled closely that of the decedent. As a result, in furtherance of establishing paternity, the appellant sought DNA blood grouping samples from the decedent or his parents, she “be[ing] advised by Roche Biomedical Laboratories, Inc. that the blood groupings of the parties[] [we]re not inconsistent with paternity and that genetic testing based on blood samples obtained from the paternal grandparents, since the decedent [wa]s buried would be sufficient to verify [the] paternity of the deceased. In the alternative, [urged the appellant,] the DNA testing c[ould] be taken from the deceased in an unobtrusive manner to establish paternity.” See Record No. 4 at 3.

In reply, the appellee contended that neither by statute nor case law could the decedent’s parents be required to submit to blood testing. The court agreed and denied such a request by order dated December 17, 1993. An identical result followed with the court’s order of March 16, 1994, denying the appellant’s request to exhume the decedent’s body for DNA testing to establish paternity. The present appeal was perfected from the latter (March 16th) order and raises nine (9) issues which, when distilled, question the propriety of the court’s order denying exhumation and blood testing of the decedent for purposes of proving parentage.

All parties, including the court, agree that the question posed is one of first impression in this jurisdiction. Nonetheless, we find guidance from this Court’s recent pronouncement in In re Estate of Greenwood, 402 Pa.Super. 536, 587 A.2d 749 (1991), appeal denied, 529 Pa. 634, 600 A.2d 953 (1991), concerning the rights of children born out of wedlock to establish paternity for inheritance purposes from one who has died prior to the posthumous-proving proceeding is instituted. As is herein germane, we wrote:

... the “right to inherit” in the case of intestacy is reserved exclusively to Chapter 21 of the Probate, Estates and Fiduciaries Code, as amended 1978.... Within the ambit of the Act of 1978, ... a person born out of wedlock is not foreclosed from proving parentage, by clear and convincing evidence, after the person claimed to be the father dies.[3]
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It is beyond peradventure that proof problems have always been in the forefront of counseling against condoning an illegitimate’s claim of paternal inheritance. This is an area with which the States have an interest of considerable magnitude. Trimble, [v. Gordon ] supra, 430 U.S. [762] at

771, 97 S.Ct. [1459] at 1465 [52 L.Ed.2d 31 (1977) ]; Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 170, 92 S.Ct. 1400, 1404, 31 L.Ed.2d 768 (1972); Labine v. Vincent, 401 U.S. 532, 538, 91 S.Ct. 1017, 1020, 28 L.Ed.2d 288 (1971).

The interest is directly implicated in paternal inheritance by illegitimate children because of the peculiar problems of proof that are involved. Establishing maternity is seldom difficult. As one New York Surrogate’s Court has observed: “[T]he birth of the child is a recorded or registered event usually taking place in the presence of others. In most cases the child remains with the mother and for a time is necessarily reared by her. That the child is the child of a particular woman is rarely difficult to prove.” In re Ortiz, 60 Misc.2d 756, 761, 303 N.Y.S.2d 806, 812 (1969). Proof of paternity, by contrast, frequently is difficult when the father is not part of a formal family unit. “The putative father often goes his way unconscious, he is very often totally unconcerned because of the absence of any ties to the mother. Indeed the mother may not know who is responsible for her pregnancy.” Ibid, (emphasis in original); accord, In re Flemm, 85 Misc.2d 855, 861, 381 N.Y.S.2d 573, 576-577 (Surr.Ct.1975); In re Hendrix, 68 Misc.2d [439] at 443, 326 N.Y.S.2d [646] at 650 [ (Surr.Ct.1971) ]; cf. Trimble, supra, 430 U.S., at 770, 772, 97 S.Ct., at 1465, 1466.

Lalli v. Lalli, 439 U.S. 259, 268-69, 99 S.Ct. 518, 525, 58 L.Ed.2d 503 (1978). However, albeit “the lurking problems with respect to proof of paternity ... are not to be lightly brushed aside ...,” Gomez v. Perez, 409 U.S. 535, 538, 93 S.Ct. 872, 875, 35 L.Ed.2d 56 (1973), “ ‘neither can they be made into an impenetrable barrier that works to shield otherwise invidious discrimination.’ ” Trimble, supra, 430 U.S. at 771, 97 S.Ct. at 1466.

We find that Trimble and its progeny were preoccupied with a “proof problem” that has been ameliorated by the advancements made in the medical field with regard to blood testing. See Alexander v. Alexander, 42 Ohio Misc.2d 30, 537 N.E.2d 1310 (Probate Court of Franklin Cty., Ohio, 1988). As our learned colleague Judge Tamilia observed in Nichols v. Horn, 363 Pa.Super. 301, 525 A.2d 1242 (1987), on this exact topic of a state limiting intestate inheritance to a child born out of wedlock:

Formerly, an important consideration that mitigated against an extended window of legal susciptibility [sic ], was the difficulty of proof as time passed. This has been consierably [sic ] reduced with the advent of sophisticated blood and tissue matching procedures such as the Homologous Lucocyte [sic ] Antigen test. In the foreseeable future, it is likely that techniques will be capable of establishing, with certainty, the identity of the father instead of indicating the probability of paternity or exclusion of a man as the child’s father. Thus the matter of proof is less a consideration than the need to have finality as to liability and reasonable expectation that a life and lives will not be badly disrupted after a certain time.

363 Pa.Super. at 308, 525 A.2d at 1245. Additionally, our Supreme Court has acknowledged that Human Leucocyte Antigen [HLA] blood grouping tests establish, in the opinion of experts interpreting the results, as high as a 99.99 percent probability that the blood of the person tested was the biological father of the illegitimate offspring. Smith v. Shaffer, 511 Pa. 421, 515 A.2d 527 (1986). And, as such, the HLA test, although not conclusive, may be introduced as “some evidence of paternity.” Id. at 426, 515 A.2d at 529. Accord Turek v. Hardy, 312 Pa.Super. 158, 458 A.2d 562 (1983).

‡ ‡ ‡ ‡ ‡

Initially, we observe that 42 Pa.C.S.A. § 6133 authorizes a court to order a “mother, child and alleged father to submit to blood tests” where, in “any matter subject to th[e] subchapter [known as Uniform Act on Blood Tests to Determine Paternity] in which paternity, parentage or the identity of a child is a relevant fact,” the court can act sua sponte or at the initiation of a claimant to resolve the question left open. Relevancy is extant.

Secondly, public policy is in favor of eliminating the stigma of illegitimacy, and one of the means by which to do so is by HLA testing ordered by the court and the admission of the results as “some evidence of paternity.” See Turek, supra; see also Ptaszkiewicz Estate, 5 Pa.Fid. Rptr.2d 208, 210 (O.CAllegheny Cty., 1984).

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Our reading of the statutes and case law indicates that where a decedent’s blood sample is available for testing, which might conclusively eliminate him as the father or be used as some evidence of paternity, it is a “relevant” factor which should not be withheld from the testing mechanisms of today’s medical procedures to facilitate a resolution on an issue of paternity since “th[e] form[ ] of proof ... do[es] not compromise the State[’s] interests.” Trimble, supra, 430 U.S. at 772 n. 14, 97 S.Ct. at 1466 n. 14.

From our scrutiny of the statute in question, there is no indication in the Probate, Estates and Fiduciaries Code ... that the Legislature intended to establish a barrier to an illegitimate’s right to prove paternity beyond the purported father’s lifetime so as to inherit by, from and through the decedent.

402 Pa.Super. at 543, 547-551 & n. 3, 587 A.2d at 752, 755-756 & n. 3 (Emphasis added in part; footnote omitted).

Consistent with the precepts enunciated in Greenwood, supra 402 Pa.Super. 536, 587 A.2d 749, we need to ascertain whether the decedent’s blood/tissue sample is available for testing. It must be remembered that in Greenwood the coroner had retained blood and tissue samples of the decedent due to a pending investigation into the cause of death. Instantly, no samples of Simonich, Jr.’s blood or tissue were preserved prior to burial. As a result, the appellant sought exhumation of the body, an exercise which could be granted' provided “reasonable cause” is shown for it. Cf. Novelli v. Carroll, 278 Pa.Super. 141, 420 A.2d 469, 472 (1980) (reinternment requires reasonable cause to be established for its allowance).

“The exhumation or autopsy of a corpse, when useful to ascertain facts in litigation, should of course be performed. Reverence for the memory of those who have departed does not require us to abdicate the high duty of doing justice to the living; and the orders of a court of justice, exercising the power of the state in the communal interest, are not to be placed on the same level with the acts of an unlicensed and self-seeking intruder upon hallowed ground.” * * * “The exhumation of a corpse, often a material assistance in insurance or inheritance cases, is demandable on this principle, subject of course to the trial court’s discretion as to necessity and propriety.”

Stastny v. Tachovsky, 178 Neb. 109, 132 N.W.2d 317, 325 (1964) (citations omitted). Accord Petition of Sheffield Farms Co., 22 N.J. 548, 126 A.2d 886, 891 (1956); Kusky v. Laderbush, 96 N.H. 286, 74 A.2d 546 (1950); Stevens v. Ganz, 49 Pa.D. & C.2d 283 (Lehigh Cty., 1970).

Instantly, in establishing cause (be it labelled “reasonable,” “good,” or “substantial”), see Novelli, supra 278 Pa.Super. 141, 420 A.2d 469; Batcheldor v. Boyd, 108 N.C.App. 275, 423 S.E.2d 810, 814 (1992); Husky, supra 96 N.H. 286, 74 A.2d 540, for purposes of exhumation, we have of record the uncontested assertions of the appellant that: 1) throughout the period of conception, including prior thereto and during pregnancy, “the decedent was the only person with whom she had a sexual relationship”; 2) the decedent is the father of the child; 3) the decedent is listed as the father on the child’s birth certificate; 4) the child’s physical characteristics “resemble closely that of the decedent”; and 5) Roche Biomedical Laboratories, Inc. advised that “the blood groupings of the parties [we]re not inconsistent with paternity”. See Appellant’s Legal Memorandum, Record No. 3 at page 3. To supplement the preceding, the appellant also contended below that DNA testing of the decedent will “establish” paternity. Id.; see also Zearfoss v. Frattaroli, 435 Pa.Super. 565, 646 A.2d 1238 (1994), wherein the question of paternity was at issue merely with the plaintiffs allegations that she had sex with the defendant during the period of conception and, exclusively, for two years preceding birth. Also, the plaintiff had a positive DNA test pointing to the defendant as the father by a 99.99 percentile. In contrast, the defendant denied seeing the plaintiff during conception, documents were produced indicating that the plaintiff could not identify the child’s father and that she cohabitated with other men during a period relevant to the resolution of paternity.

At bar, we find that the Orphans’ Court should be the first to rule on whether the appellant has presented “reasonable cause” to believe that exhumation would be revealing on the issue of paternity. See Novelli, supra 278 Pa.Super. 141, 420 A.2d 469; Batcheldor, supra 108 N.C.App. 275, 423 S.E.2d 810; Stastny, supra 178 Neb. 109, 132 N.W.2d 317; Kusky, supra 96 N.H. 286, 74 A.2d 546, and contrast with Petition of Sheffield Farms Co., supra 22 N.J. 548, 126 A.2d 886. Inasmuch as the Orphans’ Court’s ruling was predicated upon the absence of statutory and case law authorizing exhumation to establish paternity for inheritance purposes, such a “reasonable cause” determination is wanting in this case. Moreover, when the appellant’s proffered evidence is read in conjunction with the evidence sought (DNA testing), its value in aiding her case is not so conjectural and remote as to render it speculative and uncertain. See Alexander v. Alexander, 42 Ohio Misc.2d 30, 537 N.E.2d 1310, 1314 (1988); see also Concurring Opinion of Olszewski, J., in Zearfoss, supra 435 Pa.Super. 565, 646 A.2d 1238; Dissenting Opinion by Chief Justice West in Matter of Erbe, 457 N.W.2d 867, 872 (S.D.1990), and contrast with Commonwealth v. Kivlin, 267 Pa.Super. 270, 406 A.2d 799 (1979).

Albeit DNA test results “are but one of the fibers which go into making the pattern of evidence either proving or disproving paternity[,] and [even though] ... it is within the province of the trier-of-fact to believe all, some or none of the evidence presented”, Zearfoss, supra, 435 Pa.Super. at 575, 646 A.2d at 1243, that does not discount the relevancy/materiality of the evidence sought by one attempting to establish paternity via DNA testing. A party seeking DNA testing as a vehicle to supplement his/her arsenal of evidence to prove paternity should not be denied access to such potentially probative evidence, provided, as is the case here, the petitioner satisfies the “reasonable cause” criterion to warrant exhumation. This is to be decided on remand.

Despite the fact that neither party nor the court acted to bring the matter to our attention, we find that the passage of time since interment is a factor which may not be classified as de minimus in deciding whether exhumation is appropriate or whether samples of the decedent’s blood and/or tissue can be retrieved so as to render the samplings “available” (under Greenwood, supra 402 Pa.Super. 536, 587 A.2d 749) for genetic testing. Stated otherwise, it needs to be assessed whether “reasonable cause” has been established by the appellant to entitle her to exhumation, but inextricably intertwined therewith is a determination of whether “a good possibility” that exhumation would be revealing is negated by the passage of three (3) years since Simonich, Jr.’s death and his embalming so as to jeopardize the securement of sufficient blood and/or tissue samples for testing. See Batcheldor, supra, 108 N.C.App. at 282, 423 S.E.2d at 815; Esgro v. Trezza, 492 So.2d 422, 423 (Fla.App.1986); see also Will of Janis, 157 Misc.2d 999, 600 N.Y.S.2d 416, 419 (1993); Taxiera v. Malkus, 320 Md. 471, 578 A.2d 761, 766 n. 7 (1990).

The satisfaction of the quantity and quality of samples “available” in this case has been indicated to exist by the appellant with her referral to Roche Biomedical Laboratories, Inc. collecting, in an unobtrusive manner, blood samples from the decedent allowing her “to establish paternity.” See Record No. 3 at page 3. This is not contested by the appellee and the court made no finding that the lapse of time would impair the integrity of any samplings or the retrieval process itself.

Therefore, in the interest of justice and a search for the truth, the minor-child should be afforded the occasion to minimize the sting of illegitimacy and societal opprobrium which attaches to a child born out of wedlock by allowing him to prove his lineage, and, if such is shown by clear and convincing evidence, to inherit from his father’s estate. See Greenwood, supra 402 Pa.Super. 536, 587 A.2d 749; Batcheldor, supra 108 N.C.App. 275, 423 S.E.2d 810; Stastny, supra 178 Neb. 109, 132 N.W.2d 317. This can best be accomplished by allowing exhumation, conditional upon the appellant establishing that the “availability” of blood and/or tissue samples of the decedent is not compromised by the passage of time and embalming rendering their retrieval improbable or highly unlikely to produce results from which testing may be performed. This subject is not common knowledge but is an area for an expert (by testimony or deposition) to enlighten the court for resolution purposes. See, e.g., Will of Jarvis, supra 157 Misc.2d 999, 600 N.Y.S.2d 416; Stastny, supra.

As noted by the Supreme Court of Florida on this subject:

If in the course of ascertaining heirship in a proceeding held in probate court for that purpose, it is shown to the satisfaction of the probate judge that the issue of heirship can be disproved by an examination of the body of the decedent for the purpose of proving that she had never given birth to a child, and that such issue is material and can be refuted by no other evidence, then we think it entirely within the power and province of the probate judge having jurisdiction, in the exercise of sound judicial discretion and for the purpose of proving justice and preventing fraud, to enter an order directing that the body be exhumed and an autopsy be performed for such purpose, and that findings of the persons making the autopsy be made available in the trial of the cause. See Wigmore on Evidence, 3rd Ed., Yol. VIII, Sec. 2216(d), p. 170; Sec. 2221, p. 210; Gray v. State, 55 Tex.Cr.R. 90, 114 S.W. 635, [ (1908) ] 22 L.R.A., N.S., 513; 15 Am.Jur. p. 842.

Ullendorff v. Brown, 156 Fla. 655, 24 So.2d 37, 40 (1945).

Instantly, the appellant’s minor-child is attempting to establish paternity for inheritance purposes, the proof for which may exist in no other venue save for exhumation of the decedent for DNA testing. Such evidence, if produced, might be material to (but not conclusive of) proving paternity by clear and convincing evidence. See Zearfoss, supra 435 Pa.Super. 565, 646 A.2d 1238; Greenwood, supra. We find that the appellant should be availed the opportunity to prove her case as the guardian for the minor-child, the effectuation of which necessitates a remand and an initial review in the forum of the Orphans’ Court of Beaver County.

It will be for the Orphans’ Court, in the first instance, to determine whether the appellant’s allegations supportive of a finding of paternity either dispense with or necessitate the exhumation of the decedent for DNA testing. To explicate, if the Orphans’ Court disbelieves the appellant’s evidence (e.g., testimonial reference to the decedent being the sole sex partner during conception and the birth certificate naming the decedent being a by-product thereof), the need to exhume the decedent is mooted since DNA testing is not conclusive of paternity but merely a factor in a chain of elements which compose the parenting bond by clear and convincing evidence. See Zearfoss, supra.

However, if the Orphans’ Court believes the evidence proffered by the appellant and, in the exercise of its discretion, feels that the issue of heirship would be advanced by allowing exhumation for DNA testing, the unique facts of this case would require the Orphans’ Court to take testimony on the question of whether the passage of time or embalming will have a deleterious consequence on the retrieval or testing of blood and/or tissue samples. See Batcheldor, supra 108 N.C.App. 275, 423 S.E.2d 810; Alexander, supra 42 Ohio Misc.2d 30, 537 N.E.2d 1310; Stastny, supra 178 Neb. 109, 132 N.W.2d 317; see also Esgro, supra 492 So.2d 422. If the expert evidence proffered indicates to the court that the lapse of time between death and exhumation or embalming will produce insufficient DNA material to perform testing, see Will of Janis, supra 157 Misc.2d 999, 600 N.Y.S.2d 416, the motion for exhumation should be denied.

To capsulize, after the presentment of evidence to substantiate the appellant’s allegations of parentage, the sufficiency of which shall be for the Orphans’ Court to assess in the first instance, the burden of proof having been satisfied in the court’s opinion will permit continuation to the second phase: the presentation of evidence disclosing the impact, if any, of the lapse of time since death and embalming on the production of blood and/or tissue samples for DNA testing.

It may be that sufficient evidence could be produced dispensing with the need for exhumation if such other evidence is believed by the Orphans’ Court to rise to the level of clear and convincing proof of paternity. Greenwood, supra. It will be for the Orphans’ Court to make that initial assessment, subject to review under an abuse of discretion standard. Stastny, supra.

Accordingly, in light of the novelty of the issue posed for our consideration and the paucity of case law in this jurisdiction on the issue under review, we deem it prudent to avail the Orphans’ Court the occasion to make a ruling within the framework and consistent with the precepts outlined herein. Therefore, we reverse the order appealed and remand for proceedings more fully outlined herein.

Order reversed, case remanded for a procedendo, and jurisdiction is relinquished.

      . The appellee had provided the decedent’s blood type to the appellant, but Roche Biomedical Laboratories, Inc. was unable to make a determination on paternity from the blood types alone of the appellant, the minor-child and the decedent. See Appellant’s Brief and Reproduced Record at 73a.

      . The appellee’s reply focused on the argument that neither case law nor statutes in this jurisdiction allowed the exhumation of the decedent for DNA purposes to resolve paternity for inheritance purposes.
      No refutation is made with regard to the appellant's allegations of paternity in her Motion for Exhumation.

      . Evidence exists (e.g., appellant's testimony to having sex only with Simonich, Jr. during conception) which is best left in the first instance for the Orphans’ Court, as the credibility-assessor, to weigh in satisfying “reasonable cause’’ for exhumation and “clear and convincing” evidence as to the establishment of paternity.

      . It must be noted that the birth certificate is a self-serving document which is not in and of itself proof of paternity. It is but one factor to be weighed with all of the other evidence presented in deciding the question of paternity. See Zearfoss, supra.

      . Paragraph (3) of Clause (c) of Section 2107 specifically reads that paternity may be proven by clear and convincing evidence, i.e., “that the man was the father of the child". (Emphasis added) The use of the term (“was") in the past tense (versus “is" the father of the child) discloses to this Court that the Legislature intended that paternity could be proven “after" the putative father’s death. Contrast this scenario to Paragraphs (1) and (2) of Clause (c), which are written in such terms to imply that the events, more likely than not (but not in absolute terms) would transpire before the illegitimate’s eighteenth birthday, or at least during his/her lifetime and that of the alleged parent(s).


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    652 A.2d 849
    Viola KOHLMAN, Appellant, v. WESTERN PENNSYLVANIA HOSPITAL, a Corporation, Fredrick W. Martin, M.D., Charles R. Wilson, Jr., M.D., Ellen K. Tabor, M.D., Ave Marie Bacher, M.D.
    Superior Court of Pennsylvania.
    Submitted Oct. 27, 1994.
    Filed Dec. 28, 1994.

      Eleanor Smith, pro se appellant.
    Richard J. Federowicz, Pittsburgh, for Western Pennsylvania Hosp. and Bacher, appellees.
    Michael D. Heintzman, Pittsburgh, for Martin, Wilson and Tabor, appellees.
    Before CIRILLO, TAMILIA and HOFFMAN, JJ.
   CIRILLO, Judge:

This is an appeal from an order entered in the Court of Common Pleas of Allegheny County denying appellant Viola Kohlman’s (Kohlman) motion to strike a judgment of non pros. We affirm the order of the trial court, but remand the case so that Kohlman may refile her petition to strike the judgment.

On behalf of Kohlman, Eleanor C.K. Smith (Smith), as Kohlman’s power of attorney, commenced a medical malpractice action against appellees Western Pennsylvania Hospital, a corporation, Frederick W. Martin, M.D., Charles R. Wilson, Jr., M.D., Ellen K. Tabor, M.D., Ave Marie Bacher, M.D. (sometimes collectively referred to as Defendants). The action stems from the medical care and treatment that Kohlman received from the above-named doctors at Western Pennsylvania Hospital.

On December 23, 1993, three of the defendant doctors filed a praecipe for rule to file a complaint. That same day, the Prothonotary of Allegheny County issued a rule to file a complaint within twenty days of service of the rule. Kohlman failed to file a complaint within that time frame, and Defendants filed praecipe for judgment. Judgment of non pros was entered against Kohlman on February 3, 1994.

On February 25, 1994, Kohlman filed a motion to strike the judgment of non pros and impose sanctions. The motion was presented to the Honorable Judith Friedman on February 28, 1994. Apparently, Smith, as power of attorney for Kohlman, argued the motion before Judge Friedman. Judge Friedman denied the motion “without prejudice because plaintiff was not represented in court by an attorney and did not appear on her own behalf.” Kohlman filed a notice of appeal on March 18, 1994. On appeal, Kohlman presents one issue for our consideration:

Whether an individual who is not an attorney-at-law may represent a plaintiff in a medical malpractice action through the grant of a general power of attorney?

A petition to strike an order or judgment may only be granted when a fatal defect appears on the face of the record. Manor Bldg. Corp. v. Manor Complex Assocs., 435 Pa.Super. 246, 251, 645 A.2d 843, 846 (1994) (en banc). See also DeCoatsworth v. Jones, 536 Pa. 414, 639 A.2d 792 (1994). We will only reverse the trial court if there is a manifest abuse of discretion or error of law. Parliament Indus., Inc. v. William H. Vaughan & Co., Inc., 501 Pa. 1, 8, 459 A.2d 720, 724 (1983).

In her motion to strike, Kohlman argued that she was never served with the rule to file a complaint. In fact, she alleged that she did not become aware of the rule to file a complaint until after she received the notice of judgment. Without deciding the merits of the motion, Judge Friedman denied Kohlman’s motion to strike without prejudice because Kohl-man was not represented by a licensed attorney, and because she did not appear on her own behalf. Kohlman contends that Judge Friedman’s refusal to permit Smith to argue on Kohl-man’s behalf deprived Kohlman of her right to due process. We respectfully disagree.

Kohlman suggests that section 5603 of the Probate Code enables Smith, as her attorney-in-fact, to represent her in the underlying action. 20 Pa.C.S.A. § 5603. First, section 5602 defines the various forms of power of attorney. Particularly, subsection (a)(20) of section 5602 provides that an attorney-in-fact may be empowered by his or her principal to “pursue claims and litigation.” 20 Pa.C.S.A. § 5602(a)(20). Next, section 5603 of the Probate Code describes how the powers enumerated in section 5602 are to be implemented. With respect to the attorney-in-fact’s power to pursue claims and litigation, the attorney-in-fact may:

(1) Institute, prosecute, defend, abandon, arbitrate, compromise, settle or otherwise dispose of, and appear for the principal in, any legal proceedings before any tribunal regarding any claim relating to the principal or to any property interest of the principal.
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(3) In general, exercise all powers with respect to claims and litigation that the principal could if present.

20 Pa.C.S.A. § 5603(s).

Pursuant to these provisions of the Probate Code, Smith, as attorney-in-fact, commenced the medical malpractice action against Defendants. This case, then, reduces to a single issue of law: whether an agent authorized to act for a principal under a statutory form power of attorney may bring suit as a pro se litigant in the principal’s stead. We address this issue in two parts. First, is the unlicensed, in-court representation of another considered engaging in the practice of law and, thus, prohibited by Pennsylvania’s statute proscribing the unlicensed practice of law? Second, if so, does the statutory form power of attorney overcome that prohibition?

The constitution of this Commonwealth has exclusively granted to the Supreme Court of Pennsylvania the power to regulate the practice of law before all the courts of Pennsylvania. Pa. Const, art. V, § 10. In particular, subsection (c) of Article V, section 10 provides:

(c) The Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts ... and for admission to the bar and to practice law....

Pa. Const, art. V, § 10(c). To help administer admission to the bar, the Supreme Court has created the Pennsylvania Board of Law Examiners, which, among other things, establishes standards for admission to the bar. Pa.B.A.R. 104. The Supreme Court has also adopted the Code of Professional Conduct in order to govern the conduct of those individuals privileged to practice law in this Commonwealth. Additionally, to assure that lawyers admitted to practice in the Commonwealth continue their education to have and maintain the requisite knowledge and skill necessary to fulfill their professional responsibilities, the Pennsylvania Supreme Court has adopted the Pennsylvania Rules for Continuing Legal Education. Pa.R.C.L.E. 102. See generally McLaughlin v. Philadelphia Newspapers, Inc., 465 Pa. 104, 348 A.2d 376 (1975); Appeal of Hanson, 330 Pa. 390, 198 A. 113 (1938). These stringent requirements are intended to protect and secure the public’s interest in competent legal representation. In fact, Mr. Justice (later Chief Justice) Stern once opined:

While, in order to acquire the education necessary to gain admission to the bar and thereby become eligible to practice law, one is obliged to ‘scorn delights, and live laborious days,’ the object of the legislation forbidding practice to laymen is not to secure to lawyers a monopoly, however deserved, but, by preventing the intrusion of inexpert and unlearned persons in the practice of law, to assure to the public adequate protection in the pursuit of justice, than which society knows no loftier aim.

Shortz v. Farrell, 327 Pa. 81, 91, 193 A. 20, 24 (1937).

Because the practice of law involves matters of extreme public concern, the General Assembly has also taken measures to control and prevent the unauthorized practice of law:

Any person who within this Commonwealth shall practice law ... without being an attorney at law ... commits a misdemeanor of the third degree.

42 Pa.C.S.A. § 2524 (Supp.1994).

While the rules and laws proscribing the unauthorized practice of law are clear, defining the abstract boundaries of the “practice of law” would be an elusive, complex task, “more likely to invite criticism than to achieve clarity.” Shortz, 327 Pa. at 84, 193 A. at 21. This is so because the practice of law may well be used in a different sense for various purposes. Nonetheless, in Dauphin County Bar Assoc. v. Mazzacaro, 465 Pa. 545, 351 A.2d 229 (1976), the Supreme Court attempted to place the meaning of legal practice into some kind of workable format:

Where ... a judgment requires the abstract understanding of legal principles and a refined skill for their concrete application, the exercise of legal judgment is called for. While at times the line between lay and legal judgments may be a fine one, it is nevertheless discernible. Each given case must turn on a careful analysis of the particular judgment involved and the expertise that must be brought to bear on its exercise.

Id. at 553, 351 A.2d at 233 (citation omitted).

By whatever standard or definition, the in-court representation of another — a paradigmatic function of the attorney-at-law — amounts to the “practice of law” in this Commonwealth. Id. at 555, 351 A.2d at 234 (citing Fitchette v. Taylor, 191 Minn. 582, 254 N.W. 910 (1934)). Here, Smith, in attempting to represent Kohlman before Judge Friedman with respect to the motion to strike, specifically, and with respect to the medical malpractice action, generally, was engaged in the unauthorized practice of law according the Pennsylvania law. 42 Pa.C.S.A. § 2424. See 7 Am.Jur.2d Attorneys at Law § 1 (1980) (“practice of law ... embraces the preparation of pleadings and other papers incident to actions and special proceedings, the management of such actions and proceedings on behalf of clients before judges and courts”) (emphasis added). Compare Dauphin County Bar Assoc. v. Mazzacaro, 465 Pa. 545, 351 A.2d 229 (1976) (holding that a public adjuster may not represent an accident victim as an attorney-in-fact because “the proper protection of members of the public demands that no person be permitted to act in the confidential and demanding capacity of a lawyer unless he is subject to the regulations of the legal profession”) and Commonwealth v. Carroll, 358 Pa.Super. 357, 517 A.2d 980 (1986) (holding that defendant could not be represented in court by a non-lawyer; determination of qualifications required to be a lawyer was exclusively within authority of Supreme Court) and McCain v. Curione, 106 Pa.Commw. 552, 527 A.2d 591 (1987) (holding that the Commonwealth Court was without jurisdiction to consider arguments and motions made on behalf of parolee in a civil action that was filed by another prisoner who was not licensed to practice law) with Estate of Reifsneider, 531 Pa. 19, 610 A.2d 958 (1992) (holding that a power of attorney authorizing attorneys-in-fact to commence legal proceeding touching any matter in which the principal might be in any way concerned encompassed act of filing election to take share of estate of principal’s deceased spouse) and Shortz v. Farrell, 327 Pa. 81, 193 A. 20 (1937) (holding that the preparation and filing of workmen’s compensation pleadings does not constitute the practice of law because the forms are prepared by the Workmen’s Compensation Board, are elementary in character, and do not rise to the dignity of “pleadings” as that term is understood in other judicial proceedings).

Sections 5602 and 5603 of the Probate Code do not empower an individual who is not licensed as an attorney-at-law to practice law in this Commonwealth. To construe the Probate Code so as to permit a non-attorney to appear and represent a principal in a court of record would be to permit the licensing and admission requirements to be circumvented. In addition, such an interpretation would effectively abrogate the Judicial Code’s prohibition against the unlicensed practice of law. The potential problems created by the use of the power of attorney as a means of encouraging the unauthorized practice of law are obvious. Of course, if the principal wishes to proceed pro se, he or she may do so. However, the power of attorney cannot be used as a device to license laypersons to act as an attorney-at-law.

In rejecting Kohlman’s interpretation of sections 5602 and 5603 of the Probate Code, we necessarily limit the scope of the powers enumerated in those sections. Restricted by the Judicial Code’s prohibition on the unlicensed practice of law, the powers listed in sections 5602 and 5603 are best characterized as authorizing the agent to act as the client in an attorney-client relationship, with respect to probate and administrative matters. Section 5603(s)(l) authorizes the agent/attorney-in-fact to make decisions and undertake actions that are within the traditional province of a client. For example, the decisions whether to prosecute, defend, settle, or arbitrate a claim belong to the client, not to the attorney. The agent, therefore, while lacking authority to litigate pro se in his or her principal’s stead, creates and controls the attorney-client relationship as fully as if he or she were the principal.

In conclusion, we find that Smith’s legal representation of Kohlman is contrary to the constitution, the laws, and the public policy of this Commonwealth. We, therefore, affirm the order of the trial court, but remand the case to allow Kohlman or her attorney to refile her petition to strike the judgment of non pros.

Order affirmed. Case is remanded with instructions to permit Kohlman to refile her petition to strike the judgment. Jurisdiction relinquished.

      . In her motion to strike the judgment, Kohlman argued, in short, that she was never served with the rule to file a complaint and, therefore, the entry of judgment due to noncompliance with the rule was improper.

      . After Kohlman filed her notice of appeal, Defendants discovered that they had made an error in serving Kohlman with the rule to file a complaint. The Defendants, therefore, agreed to open (strike) the judgment. Kohlman refused to have the judgment stricken at that time, evidently, because she wanted the appellate courts to first decide whether she could be represented by Smith, one of her two Powers of Attorney.

      . The attorney-in-fact may, of course, personally engage in all activities authorized under sections 5602 and 5603 that do not constitute the unauthorized practice of law.

      . Although not relevant to the disposition of this appeal, we find it interesting to note that neither the pleadings nor any of the other documents filed with the trial court were signed by Kohlman's joint attorney-in-fact, as is required by the Probate Code when more than one power of attorney is granted simultaneously. Specifically, section 5602(b) provides that a principal may provide for:
      The appointment of more than one attorney-in-fact, who shall act jointly, severally or in any other combination that the principal may designate, but if there is no such designation, such attomeys-in-fact shall only act jointly.

      20 Pa.C.S.A. § 5602(b)(1) (emphasis added).
      The general power of attorney in this case appoints "Eleanor C.K. Smith and Phyllis O’Brien” as Kohlman’s attorneys-in-fact. The power of attorney did not designate whether Smith and O’Brien shall act jointly, severally, or otherwise; therefore, all actions taken on behalf of Kohlman required the signatures of both Smith and O'Brien. 20 Pa.C.S.A. § 5602(b)(1). However, there is nothing in the record to indicate that O’Brien joined Smith in the commencement and/or litigation of the underlying case. Smith alone appeared before the trial court on Kohlman's behalf. Additionally, all of the documents filed with the trial court and with this court were signed by Smith. Notwithstanding this technical deficiency, a second signature would not in any way remedy the fact that Smith is not licensed to practice law before the courts of this Commonwealth.


author: WIEAND, Judge.

text:
    652 A.2d 853
    ESTATE OF Gertrude Mae REIGLE. Appeal of Ronald REIGLE, Jacquelyn Levy and Constance Mae Reigle.
    Superior Court of Pennsylvania.
    Argued Oct. 25, 1994.
    Filed Jan. 10, 1995.
    James M. Schildt, Quakertown, for appellants.

      Jeffrey F. Bahls, Quakertown, for Raymond Reigle, participating party.
    Before WIEAND, McEWEN and SAYLOR, JJ.
   WIEAND, Judge.

In this appeal we are asked to determine the legal effect of a conveyance to mother and son “as tenants by the entireties.” After careful consideration, we hold that mother and son held the conveyed real estate as joint tenants with right of survivorship.

By deed dated December 8, 1972, and duly recorded, real estate situated in West Rockhill Township, Bucks County, was conveyed by William John Harbers and Marion A. Harbers, husband and -wife, to “Raymond L. Reigle and Gertrude Reigle, son and mother ... as tenants by the entireties.” When Gertrude Reigle died on March 22, 1990, she was survived by her son, Raymond, and also by other children. Some of these children objected to the fact that the real estate was not included as an asset in their mother’s estate. They contended that their mother, at the time of her death, had owned an undivided one-half interest in the real estate as a tenant in common. The Orphans’ Court held that the real estate had been owned by mother and son as joint tenants with right of survivorship and that, therefore, title had passed to Raymond upon his mother’s death and had not been a part of the mother’s estate. Exceptions were dismissed, and this appeal followed.

Under Pennsylvania law, “it is not possible for two persons who are not married to one another to hold title to land as tenants by the entireties; marriage is an essential ingredient of such an estate.” Masgai v. Masgai, 460 Pa. 453, 457, 333 A.2d 861, 863 (1975). Where the express language of the deed purports to create a tenancy by the entireties and the law will not recognize the estate because the grantees are not husband and wife, the deed is nevertheless valid and does not prevent the grantees from receiving and holding title as appropriate under the circumstances. Thornton v. Pierce, 328 Pa. 11, 16, 194 A. 897, 899 (1937).

Where the language of the deed is clear and unambiguous, the intent of the grantees must be gleaned solely from the deed’s language. Teacher v. Kijurina, 365 Pa. 480, 486, 76 A.2d 197, 200 (1950). In Pennsylvania Bank and Trust Co. v. Thompson, 432 Pa. 262, 247 A.2d 771 (1962), the Supreme Court reasoned that “a joint tenancy best fulfills an intent to create a tenancy by the entireties because both contain the survivorship feature.” Id. at 264, 247 A.2d at 771-772. Therefore, the Court held that where title had been conveyed to two brothers as “tenants by the entireties,” the brothers held the real estate as joint tenants with right of survivorship. See also: Maxwell v. Saylor, 359 Pa. 94, 58 A.2d 355 (1948) (conveyance to unmarried man and woman as tenants by the entireties); Hoffert v. Bastian, 54 Pa.D. & C. 146 (Leh.1945) (conveyance to mother and daughter as tenants by the entire-ties).

Appellants contend that the language of the deed was ambiguous and that they should have been permitted to offer parol evidence to show the actual intent of the parties. However, in Estate of Whiteman v. Whiteman, 466 Pa. 343, 353 A.2d 386 (1976), the Supreme Court upheld a trial court’s refusal to hear parol evidence which allegedly would have shown that a right of survivorship was not intended where a deed conveyed property to an unmarried man and woman, who had been cohabiting, as tenants by the entireties. In that case a judgment was affirmed which held that the grantees had taken title as joint tenants with right of survivorship. Estate of Whiteman v. Whiteman, supra at 344, 353 A.2d at 387. Also instructive is an earlier ruling in Teacher v. Kijurina, supra 365 Pa. 480, 76 A.2d 197, where the Court held that a deed to “Nick Kijurina and Sarah, his wife,” when in fact they were not married, created a tenancy in common where there was no other language in the deed indicating the character of the estate taken. In so doing, the Court disallowed parol evidence saying:

In absence of fraud, accident or mistake[,] parol evidence is inadmissible to vary or limit the scope of a deed’s express covenants and the nature and quantity of the interest conveyed must be ascertained by the instrument itself and cannot be orally shown. Furthermore, in construing a deed, as in the case of a will, it is not what the parties may have intended by the language used but what is the meaning of the words.

Id. 365 Pa. at 486, 76 A.2d at 200 (citations omitted). See also: Forster v. Whiteman, 41 Del. Co. 270, 273 (1954) (parol evidence inadmissible to show an intention other than that clearly discernible from the unambiguous language of the instrument in the absence of fraud, accident or mistake).

The statutory presumption against a right of survivorship does not dictate a different result. As the Court observed in Zomisky v. Zamiska, 449 Pa. 239, 296 A.2d 722 (1972):

Since the passage of the Act of 1812, the question of survivorship has become a matter of intent (Maxwell v. Saylor, 359 Pa. 94, 58 A.2d 355 (1948)); and in order to engraft the right of survivorship on a cotenancy which might otherwise be a tenancy in common, the intent to do so must be expressed with sufficient clarity to overcome the statutory presumption that survivorship is not intended: Isherwood v. Springs First Nat. Bank, 365 Pa. 225, 74 A.2d 89 (1950); Mardis v. Steen, 293 Pa. 13, 141 A. 629 (1928). But it is also true that no particular form of words is required to manifest such an intention: Pennsylvania Bank & Trust Company v. Thompson, 432 Pa. 262, 247 A.2d 771 (1968), and Maxwell v. Saylor, supra.

Id. 449 Pa. at 242, 296 A.2d at 723 (1972). If the deed in the instant case had been silent as to the estate to be acquired by the grantees, the Act of 1812 would have required that they hold as tenants in common. When the deed recited that they were to hold as tenants by the entireties, however, the issue became whether by this language they had intended a joint tenancy with right of survivorship. The words “tenants by the entireties” cannot be disregarded and, when construed, must entail some element of survivorship. See: Pennsylvania Bank & Trust Co. v. Thompson, supra 432 Pa. at 265, 247 A.2d at 772. Therefore, the language of the conveying clause can best be given effect by holding that the grantees were to hold title as joint tenants with right of survivorship. The trial court correctly so held.

Affirmed.

      . The holding in Hoffert was cited with approval by the Supreme Court in Pennsylvania Bank and Trust Co. v. Thompson, supra.

        . To understand the import of the majority per curiam opinion it is necessary to read the dissenting opinion of Justice Roberts which provides a synopsis of the relevant facts.

      . Act of March 31, 1812, P.L. 259, 5 Sm.L. 395, § 1, 20 P.S. § 121, transferred to 68 P.S. § 110.


author: SAYLOR, Judge:

text:
    652 A.2d 855
    ESTATE OF Abram G. NESBITT, Deceased. Appeal of Abram NESBITT, III, Marie Lynch Nesbitt, Stefenhagens, Samuel Nesbitt, Jr., and Mrs. Frank Nesbitt, Guardian of Andrew McCormick Nesbitt and Graham Rhodes Nesbitt.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1994.
    Filed Jan. 10, 1995.

      Frank Townend, Wilkes-Barre, and Craig E. Ziegler, Philadelphia, for appellants.
    John E. Morris, III, Kingston, for Nesbitt Memorial Hosp., participating party.
    Before CAVANAUGH, POPOVICH and SAYLOR, JJ.
   SAYLOR, Judge:

This is an appeal by the residuary beneficiaries of the Estate of Abram G. Nesbitt from two orders entered in the Orphans’ Court Division of the Court of Common Pleas of Luzerne County denying exceptions to a decree nisi, and affirming the decree nisi as a final order. We affirm.

On May 3, 1926, Abram G. Nesbitt of Kingston, Pennsylvania died, leaving a will dated April 1, 1922 and three codicils. Under the second codicil dated September 13, 1924, the testator bequeathed the sum of $400,000.00 to the Second National Bank of Wilkes-Barre, as Trustee, to invest and reinvest the money and to pay the annual income from the corpus of the trust to the Nesbitt West Side Hospital, “so long as it exists as a separate institution caring for the sick and injured.” The terms of the charitable trust created by the second codicil did not provide for any alternate gift or reversion.

In 1928, Nesbitt West Side Hospital was renamed Nesbitt Memorial Hospital, and in 1983, Nesbitt Memorial Hospital became a subsidiary of Nesbitt Hospital Foundation. Throughout this period and until the beginning of 1992, the Trustee continued to pay the income from the charitable trust to Nesbitt Hospital without objection from the residuary beneficiaries under the Nesbitt will (Appellants), notwithstanding the corporate changes experienced by the hospital.

In 1992, however, in order to resolve severe economic difficulties which Nesbitt Hospital was facing, the hospital, along with Wilkes-Barre General Hospital, became an affiliate of the Wyoming Valley Health Care System, Inc. (WVHCS), effective August 27, 1992. At this time, counsel for Appellants informed the Trustee by letter that the income beneficiary, Nesbitt Hospital, had ceased to exist as a separate institution, and recommended that the Trustee make its final distribution to Nesbitt Hospital. On June 30, 1993, Nesbitt Hospital merged with and into Wilkes-Barre General Hospital. Under the terms of the merger agreement, the new corporate entity was known as Wyoming Valley Health Care Systems-Hospital. The merger agreement further provided that although Nesbitt Hospital was now part of a new corporate structure, it would continue to be known as Nesbitt Memorial Hospital and would continue to occupy the same campus that it had occupied prior to the merger. The hospital would thus continue to exist as a separate facility or division of the combined entity, with its own name, management structure and identity. The merger agreement also specifically stated that trust arrangements or monies already in place for the benefit of Nesbitt Hospital would only be used for that hospital after the merger occurred.

Following receipt of the letter from counsel for Appellants, the Trustee filed a Petition for Adjudication with the Orphans’ Court on December 29, 1992, submitting the following question for adjudication: “Whether Nesbitt Memorial Hospital, the income beneficiary of the trust, has ceased to exist as a separate institution caring for the sick and injured.”

A hearing was held on July 14, 1993, and on July 20, 1993 the Orphans’ Court issued a decree nisi and memorandum opinion in which it held that the evidence adduced at the hearing had established that Nesbitt Hospital continued to exist as a “separate institution caring for the sick and injured.” The court also concluded that the testator had not intended his heirs to benefit from the charitable trust created under the second codicil to his will.

Appellants filed exceptions to the decree nisi, and the Orphans’ Court dismissed the exceptions by order and opinion dated December 6, 1993. By order dated February 18, 1994, the Orphans’ Court affirmed the decree nisi of July 20,1993 as a final order.

On appeal, Appellants contend that the Orphans’ Court erred in determining that Nesbitt Hospital continued to operate as a “separate institution,” pursuant to the terms of the testamentary trust created by Abram G. Nesbitt. Appellants argue that Nesbitt Hospital no longer exists as a separate institution within the meaning of the provision in the testamentary trust, because it is no longer a separate corporate entity and the use or disposition of all of its assets is at the complete discretion of WVHCS. Appellants further assert that, in the event that this court finds that the Orphans’ Court erred in making this determination and that the trust has in fact terminated, the doctrine of cy pres is inapplicable, since the testator’s intent would be thwarted by the continued payment of the trust income to Nesbitt Hospital under its new corporate structure. Accordingly, Appellants contend that as residuary beneficiaries under the testator’s will, they are entitled to receive the assets of the trust, which has allegedly failed upon the corporate reorganization of the hospital.

In reviewing the decision of the Orphans’ Court, this court must accord the findings of the Orphans’ Court the same weight and effect as a jury verdict, and will not disturb those findings absent manifest error. In re Benson, 419 Pa.Super. 582, 585, 615 A.2d 792, 793 (1992). An appellate court can modify an Orphans’ Court decree only if

the findings upon which the decree rests are unsupported by competent or adequate evidence or if there has been an error of law, an abuse of discretion or a capricious disbelief of competent evidence. [In re Benson, 419 Pa.Super. 582, 615 A.2d 792 (1992).] “The test to be applied is not whether, we, the reviewing court, would have reached the same result, but whether a judicial mind, after considering the evidence as a whole, could reasonably have reached the same conclusion.” In re Estate of Kessler, 419 Pa.Super. 142, 146, 615 A.2d 65, 67 (1992), allocatur denied, 533 Pa. 660, 625 A.2d 1193 (1993).

Appeal of Gannon, 428 Pa.Super. 349, 362, 631 A.2d 176, 182 (1993).

“In interpreting a trust agreement, the intent of the settlor is paramount and if that intent is not contrary to law, it must prevail.” Estate of Taylor, 361 Pa.Super. 395, 398, 522 A.2d 641, 642 (1987), citing Matter of Estate of Krebs, 334 Pa.Super. 635, 483 A.2d 919 (1984). “To ascertain this intent, a court must examine the language of the document, the scheme of distribution, and the facts and circumstances existing at the creation of the trust.” Trust Agreement of Cyrus D. Jones Dated June 24, 1926, 414 Pa.Super. 361, 367, 607 A.2d 265, 268 (1992). Furthermore, charitable trusts are favorites of the law because they are in relief of the public burden, Estate of James, 414 Pa. 80, 86, 199 A.2d 275, 278 (1964), and a gift, even for a specific charitable purpose, should be liberally construed whenever reasonably possible. In re Primer’s Estate, 400 Pa. 629, 634, 162 A.2d 626, 629 (1960).

Here, during the July 14, 1993 hearing, the Orphans’ Court heard testimony from Ronald Stern, the former president and chief executive officer of Nesbitt Memorial Hospital. Stern testified that it was intended by the affiliation agreement of April 28, 1992 that the hospital would continue to maintain a separate existence, despite its pending merger with Wilkes-Barre General Hospital on June 30, 1993. Thus, Nesbitt Hospital continues to be licensed as a separate hospital under the laws of Pennsylvania, has separate Medicare and Medicaid provider numbers, has a separate contract with Blue Cross, and is separately accredited by the Joint Commission and Health Care Organization. According to Stern, money from Medicare, Blue Cross or Medical Assistance continues to go into an account called “Nesbitt Memorial Hospital,” nearly one thousand employees still receive a Nesbitt Memorial Hospital paycheck, the accounts payable system remains in the name of Nesbitt Memorial Hospital, and most importantly, all income from the Nesbitt testamentary charitable trust is confined for the sole use of Nesbitt Memorial Hospital. Thus, the funds which the testator intended to be used solely by Nesbitt Memorial Hospital are not commingled with any other hospital institution affiliated with WVHCS, and separate accounting, budget and bank systems are maintained for the Nesbitt trust funds.

John J. Cunningham, III, the attorney who prepared the legal documents during the negotiations for the affiliation and merger of the hospitals, also testified at the hearing. Cunningham confirmed that the merger documents included specific provisions that trust funds already in place for the benefit of Nesbitt Hospital would continue to be used only for that hospital after the merger. Cunningham stated that the decision was made at the time of the merger that although Nesbitt Hospital’s corporate entity would be merged into Wilkes-Barre General Hospital, Nesbitt Hospital would continue as a separate facility, with its own name, management structure, and identification. Accordingly, although Nesbitt Hospital no longer has its own corporate board of directors, it continues to have its own group of administrators, and has its own auxiliary-group for the purpose of fundraising and soliciting.

Based upon the foregoing evidence adduced at the hearing before the Orphans’ Court, we find no error on the part of the court in concluding that Nesbitt Memorial Hospital continues to exist as a “separate institution caring for the sick and injured.” In examining the facts and circumstances at the time the testamentary trust was created, the Orphans’ Court noted that in 1924, when Abram G. Nesbitt executed the second codicil to his will, there were only four hospitals in the Wilkes-Barre/Kingston area, each with a limited number of beds. Thus, the court reasoned, it was evident that the testator appreciated the lack of available medical care for the residents of the area in which he lived. In merging with Wilkes-Barre General Hospital, Nesbitt Hospital saved substantial expenses, thus enabling it to continue providing improved and expanded medical care for the sick and injured, which was the primary purpose for which the charitable trust was created.

Furthermore, as the Orphans’ Court pointed out, if at any time the trust fund income is not applied to Nesbitt Hospital, Appellants can seek relief on the basis that the trust provision has failed. At present, however, there is no evidence that the trust provision has failed; on the contrary, the purpose of the trust has been perpetuated by the merger of the hospitals.

Because we find that there is competent and adequate evidence on the record to support the Orphans’ Court’s conclusion that Nesbitt Hospital continues to exist as a separate institution, we do not reach Appellants’ contention concerning the doctrine of cy pres, and the orders of the Orphans’ Court are affirmed.

Orders affirmed.


author: OLSZEWSKI, Judge:

text:
    652 A.2d 858
    COMMONWEALTH of Pennsylvania, Appellant, v. James HALL, Appellee. (Two Cases.)
    Superior Court of Pennsylvania.
    Argued Nov. 1, 1994.
    Filed Jan. 12, 1995.

      Norman Gross, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    John W. Packel, Asst. Public Defender, Philadelphia, for appellee.
    Before OLSZEWSKI, DEL SOLE and BECK, JJ.
   OLSZEWSKI, Judge:

The Commonwealth contests the grant of parole from two sentences imposed on appellee, James Hall, in this consolidated appeal. Following a bench trial on December 12, 1988, appellee was convicted in Philadelphia municipal court of indecent assault and corrupting the morals of a minor. Appellee took a de novo appeal to the court of common pleas. On December 11, 1991, appellee pled guilty before the Honorable Mary D. Collins to charges of attempted indecent assault and corrupting the morals of a minor. Judge Collins imposed two consecutive six- to twenty-three-month sentences.

On November 19, 1992, the Prison Population Management Unit of the Philadelphia Prisons System petitioned the sentencing court for early parole on behalf of appellee. The Commonwealth opposed on the grounds that the trial court did not have jurisdiction to grant parole when, as in this case, the aggregate maximum consecutive sentence imposed equals or exceeds twenty-four months. Judge Collins agreed. A second parole application to the sentencing court was denied. In response, Judge Collins specifically ordered that all the documentation necessary to make a parole determination be submitted to the Pennsylvania Board of Probation and Parole (“Parole Board”). R.R. at 91a. The Parole Board assumed jurisdiction and denied parole. Subsequently, the Defender Association of Philadelphia filed a new petition for parole with the trial court on behalf of appellee. This time, however, Judge Collins granted appellee early parole on March 17, 1994, on the charge of attempted indecent assault, and, on March 23, 1994, on the charge of corrupting the morals of a minor. The Commonwealth appeals both of these orders.

The Commonwealth argues that the trial court improperly usurped the exclusive statutory authority of the Parole Board by granting Mr. Hall early parole. We first note that when a sentence is ordered to be served consecutively with another being imposed or previously imposed, the two sentences are automatically aggregated. Commonwealth v. Harris, 423 Pa.Super. 190, 197-99, 620 A.2d 1175, 1179, allocatur denied, We also note that

[ujnder Pennsylvania law, the authority to parole convicted offenders is split between the common pleas courts and the Pennsylvania Board of Probation and Parole (Parole Board). When an offender is sentenced to a maximum term of imprisonment of less than two years, the common pleas court retains authority to grant and revoke parole; when the maximum term is two years or more, authority to grant or revoke parole is vested in the Parole Board. See 61 P.S. §§ 331.17, 331.21, 331.26; see also Wile, Probation and Parole, 58 Pa.B.A.Q. 119, 121 (1987); Wile, An Overview of the Parole Revocation Process in Pennsylvania, 92 Dickinson L.Rev. 1, 2-3 & n. 1 (1987).

Commonwealth v. McDermott, 377 Pa.Super. 623, 631, 547 A.2d 1236, 1239-40 (1988). The issue before this Court is whether the common pleas court retains jurisdiction in matters regarding parole when each component sentence imposed has a maximum of less than two years but the aggregate maximum consecutive sentence imposed is two years or more. The answer to this question today, as it has been each time this issue has come before this Court, is emphatically no.

In addressing this very question in Commonwealth v. Evola, 421 Pa.Super. 595, 618 A.2d 969 (1992), allocatur denied, 535 Pa. 666, 634 A.2d 1114 (1993), and more recently in Commonwealth v. Hams, supra, we have clearly stated that the Parole Board has exclusive authority over parole matters when the aggregate maximum sentence equals or exceeds two years. Harris, 423 Pa.Super. at 197-99, 620 A.2d at 1179; see also Evola, 421 Pa.Super. at 599 n. 3, 618 A.2d at 971 n. 3 (holding that the court of common pleas had no authority to grant early parole when defendant’s aggregate sentence for imposed consecutive sentences is two or more years); McDermott, 377 Pa.Super. at 631, 547 A.2d at 1240 (“The common pleas court loses its authority to parole an offender sentenced to a maximum term of less than two years when a subsequent sentence is imposed consecutively to the previous sentence and the new aggregate maximum sentence exceeds two years.”) (citation omitted).

We based our holding in Harris on an application of the opinions in Gillespie v. Commonwealth Department of Corrections, 106 Pa.Commw. 500, 527 A.2d 1061 (1987), allocatur denied, 518 Pa. 614, 540 A.2d 535 (1988), and Commonwealth v. Ford-Bey, 404 Pa.Super. 281, 590 A.2d 782 (1991); and on an interpretation of the clear statutory provisions of 61 P.S. Section 331.17. Both we and the Commonwealth Court in Ford-Bey and Gillespie, respectively, interpreted 42 Pa.C.S.A. Section 9757 to mandate the automatic aggregation of sentences once a consecutive sentence has been imposed. The Parole Board’s powers regarding parolees is defined in 61 P.S. Section 331.17, which reads in part:

The [Parole Board] shall have exclusive power to parole and reparole, commit and recommit for violations of parole, and to discharge all persons from parole heretofore or hereafter sentenced by any court of this Commonwealth to imprisonment in any prison or penal institution thereof.... Provided, however, That ... the powers and duties herein conferred shall not extend to persons sentenced to a maximum period of less than two years, and nothing herein contained shall prevent any court of this Commonwealth from paroling any person sentenced by it for a maximum period of less than two years: And provided further, That the period of two years herein referred to shall mean the entire continuous term of sentence to which a person is subject, whether the same be by one or more sentences, either to simple imprisonment or to an indeterminate imprisonment at hard labor, as now or hereinafter authorized by law to be imposed for criminal offenses.

61 P.S. § 331.17. The decision, therefore, to parole or not parole prisoners whose aggregate maximum consecutive sentence imposed equals or exceeds two years is within the domain of the Parole Board, even if each and every individual component maximum sentence would have been less than two years. Harris, 423 Pa.Super. at 197-202, 620 A.2d at 1179-81. “Upon aggregation the trial court loses its authority over the aggregated sentence.” Id. 620 A.2d at 1181.

The trial court relied upon the Commonwealth Court’s opinion in Abraham v. Dept. of Corrections of the Commonwealth of Pennsylvania, 150 Pa.Commw. 81, 615 A.2d 814 (1992), aff'd, 535 Pa. 122, 634 A.2d 214 (1993), in supporting a contrary proposition to our holding in Harris. In Abraham the Commonwealth Court stated that “for the purpose of determining place of confinement and parole, a county sentence shall not be aggregated with any later-imposed sentence.” Id. at 95, 615 A.2d at 820. The only question at issue in Abraham was, what is the proper place of confinement for prisoners whose aggregate maximum sentence is five or more years? Because the court, in Abraham was dealing with the issue of the situs of a prisoner’s confinement, any reference to a determination of who has the authority over the decision to grant parole was obiter dictum.

We reaffirm our recent analysis of Abraham. “Decisions of the Commonwealth Court are not binding on this Court and should be followed only when the reasoning contained therein is persuasive. Based on our own analysis of the pertinent statutes ... we find that the Commonwealth Court’s discussion in Abraham was not only unnecessary but unpersuasive.” Harris, 423 Pa.Super. at [207-08], 620 A.2d at 1184 (citation omitted). In Harris we held that the Commonwealth Court ignored “the plain meaning of the language of section 331.17.” Id.

The only reason we revisit this issue is because our Supreme Court affirmed, per curiam, the order in Abraham. Abraham v. Dept. of Corrections of Pennsylvania, 535 Pa. 122, 634 A.2d 214 (1994). Appellee argues that this decision by the Supreme Court overruled, sub silentio, our decision in Harris. We disagree. “[A] sub silentio overruling will rarely be found to [be] ... intended.” Commonwealth v. Cragle, 281 Pa.Super. 434, 422 A.2d 547, 549 (1980). The Supreme Court’s ruling only affirmed, without opinion, the Commonwealth Court’s order issued in Abraham, an order dealing strictly with assigning the appropriate (state or county) place of confinement. We do not believe that this was intended to overrule Harris. See Commonwealth v. Johnson, 399 Pa.Super. 266, 272, 582 A.2d 336, 339 (1990) (refusing to find a holding overruled sub silentio when different issues were presented); cf. Harris, 423 Pa.Super. at 201-02, 620 A.2d at 1181 (finding that a sentencing court was not given power to parole a criminal defendant serving a five- to ten-year sentence by our Supreme Court’s per curiam order issued in Georgevich v. Court of Common Pleas of Allegheny County, 510 Pa. 285, 507 A.2d 812 (1986), when that order did not mention this type of aggregate sentence). We hold that Harris is still fully applicable to cases such as the one at bar; the decision of whether or not to parole a person whose aggregate maximum consecutive sentence is equal to or exceeds two years is the Parole Board’s, notwithstanding the fact that the individual component sentences each may have had a maximum of less than two years.

Appellee was improperly granted an early parole. Order reversed. This matter is remanded for proceedings consistent with this decision. Jurisdiction relinquished.

      . The Commonwealth has or will have raised this same issue in appeals from orders granting early parole in the following cases: Commonwealth v. Tilghman, No. 01350 Philadelphia 1994; Commonwealth v. Jamison, No. 01042 Philadelphia 1994; Commonwealth v. Palmer Daley, No. 1351 Philadelphia 1994: Commonwealth v. Jack Glover, Nos. 1449 and 1509 Philadelphia 1994; Commonwealth v. Clifford Ferron, Nos. 1660 and 1663 Philadelphia 1994; Commonwealth v. Donald Brown, No. 1943 Philadelphia 1994; Commonwealth v. Richard Sanders, No. 2258 Philadelphia 1994; Commonwealth v. Marcellus Hopkins, No. 2441 Philadelphia 1994.

      . "Whenever the court determines that a sentence should be served consecutively to one being imposed by the court, or to one previously imposed, the court shall indicate the minimum sentence to be served for the total of all offenses with respect to which sentence is imposed. Such minimum sentence shall not exceed one-half of the maximum sentence imposed." 42 Pa.C.S.A. § 9757. See also Abraham v. Department of Corrections of the Commonwealth of Pennsylvania, 150 Pa. Commw. 81, 615 A.2d 814 (1992), aff’d, 535 Pa. 122, 634 A.2d 214 (1993) (aggregating consecutive sentences is mandatory; since this is not discretionary with the trial court, this interpretation of 42 Pa.C.S.A. Section 9757 does not violate the separation of powers doctrine). 438 PA.Super. — 14

      . The court in Abraham was applying 42 Pa.C.S.A. Section 9762 to cases where a prisoner's aggregate maximum consecutive sentence, as opposed to the individual component sentences imposed, equals or exceeds five years. This section reads:
      § 9762. Sentence Proceeding: place of confinement
      All persons sentenced for a total or partial confinement for:
      (1) maximum terms of five or more years shall be committed to the Bureau of Corrections for confinement:
      (2) maximum terms of two years or more but less than five years may be committed to the Bureau of Corrections for confinement or may be committed to a county prison within the jurisdiction of the court:
      (3) maximum terms of less than two years shall be committed to a county prison within the jurisdiction of the court except that as facilities become available on dates and in areas designated by the Governor in proclamations declaring the availability of State correctional facilities, such persons may be committed to the Bureau of Correction for confinement.


text:
    652 A.2d 862
    COMMONWEALTH of Pennsylvania, Appellant, v. Bruce JAMISON.
    Superior Court of Pennsylvania.
    Submitted Nov. 1, 1994.
    Filed Jan. 12, 1995.

      Ronald Eisenberg, Deputy Dist. Atty., Philadelphia, for Com.
    John W. Packel, Asst. Public Defender, Philadelphia, for appellee.
    Before OLSZEWSKI, DEL SOLE, and BECK, JJ.
   OLSZEWSKI, Judge:

This case presents the question of whether a common pleas court retains jurisdiction in matters regarding parole when although the maximum aggregate sentence is two or more years, each component sentence imposed has a maximum of less than two years. Our answer today, as it has been each time this issue has come before us, is no.

Bruce Jamison was granted reparole from his incarceration for aggravated assault in the first degree. On December 12, 1989, Mr. Jamison hit a fruit and vegetable salesman in the head with a two-by-four. He was found guilty of aggravated assault, recklessly endangering another person, and possessing an instrument of crime. Sentenced to three years’ probation, he violated the terms and conditions of his probation on March 3, 1991, when he assaulted a police officer. For this act, the Honorable G. Craig Lord revoked probation and imposed a sentence of incarceration of six to twenty-three months. Mr. Jamison was paroled from that sentence on September 26, 1991. On December 5, 1991, he was convicted in Philadelphia municipal court of charges stemming from the March 1991 assault. Following a hearing on May 27, 1993, Judge Lord ordered Mr. Jamison to serve the remaining time imposed for his conviction of the 1989 assault, seventeen months and nineteen days. Mr. Jamison then took a de novo appeal to the court of common pleas for the 1991 assault, where he pled guilty to simple assault, recklessly endangering another person, and resisting arrest. The Honorable Nitza I. Alejandro Quinones sentenced him to three, three- to six-month concurrent sentences to be served consecutive to his sentence for the prior assault. The combined time of his sentences was now nine to twenty-nine months.

In January of 1994 the Parole Board denied Mr. Jamison’s application for reparole from the sentence imposed for the first assault. He nevertheless filed a Petition for Parole/Early Parole/Reparole with the trial court. Judge Lord granted reparole on February 22, 1994. The Commonwealth now appeals.

The Commonwealth argues that the trial court improperly usurped the exclusive statutory authority of the Parole Board by granting early parole. We first note that when a sentence is ordered to be served consecutively with another being imposed or previously imposed, the two sentences are automatically aggregated. Commonwealth v. Harris, 423 Pa.Super. 190, 197-99, 620 A.2d 1175, 1179, allocatur denied, 535 Pa. 668, 634 A.2d 1115 (1993). We also note that

[u]nder Pennsylvania law, the authority to parole convicted offenders is split between the common pleas courts and the Pennsylvania Board of Probation and Parole (Parole Board). When an offender is sentenced to a maximum term of imprisonment of less than two years, the common pleas court retains authority to grant and revoke parole; when the maximum term is two years or more, authority to grant or revoke parole is vested in the Parole Board. See 61 P.S. §§ 331.17, 331.21, 331.26; see also Wile, Probation and Parole, 58 Pa.B.A.Q. 119, 121 (1987); Wile, An Overview of the Parole Revocation Process in Pennsylvania, 92 Dickinson L.Rev. 1, 2-3 & n. 1 (1987).

Commonwealth v. McDermott, 377 Pa.Super. 623, 631, 547 A.2d 1236, 1239-40 (1988).

We stated in Commonwealth v. Evola, 421 Pa.Super. 595, 618 A.2d 969 (1992), allocatur denied, 535 Pa. 666, 634 A.2d 1114 (1993), and more recently in Commonwealth v. Harris, supra, that when such sentences are aggregated, the Parole Board maintains exclusive authority over parole matters as long as the aggregate maximum sentence equals or exceeds two years. Harris, 423 Pa.Super. at 197-99, 620 A.2d at 1179; see also Evola, 421 Pa.Super. at 599 n. 3, 618 A.2d at 971 n. 3 (holding that the court of common pleas has no authority to grant early parole when defendant’s aggregate sentence for imposed consecutive sentences is two or more years); McDermott, 377 Pa.Super. at 631-33, 547 A.2d at 1240 (“The common pleas court loses its authority to parole an offender sentenced to a maximum term of less than two years when a subsequent sentence is imposed consecutively to the previous sentence and the new aggregate maximum sentence exceeds two years.”) (citation omitted).

We based our holding in Harris on an application of Gillespie v. Commonwealth Department of Corrections, 106 Pa.Commw. 500, 527 A.2d 1061 (1987), allocatur denied,, 518 Pa. 614, 540 A.2d 535 (1988), and Commonwealth v. Ford-Bey, 404 Pa.Super. 281, 590 A.2d 782 (1991); and on an interpretation of the clear statutory provisions of 61 P.S. Section 331.17. Both we and the Commonwealth Court in Ford-Bey and Gillespie, respectively, interpreted 42 Pa.C.S.A. Section 9757 to mandate the automatic aggregation of sentences once a consecutive sentence has been imposed. Even when a sentence of two or more years is the result of such aggregation, however, 61 P.S. § 331.17 gives .exclusive jurisdiction to the Parole Board.

The [Parole Board] shall have exclusive power to parole and reparole, commit and recommit for violations of parole, and to discharge all persons from parole heretofore or hereafter sentenced by any court of this Commonwealth to imprisonment in any prison or penal institution thereof.... Provided, however, That ... the powers and duties herein conferred shall not extend to persons sentenced to a maximum period of less than two years, and nothing herein contained shall prevent any court of this Commonwealth from paroling any person sentenced by it for a maximum period of less than two years: And provided further, That the period of two years herein referred to shall mean the entire continuous term of sentence to which a person is subject, whether the same be by one or more sentences, either to simple imprisonment or to an indeterminate imprisonment at hard labor, as now or hereafter authorized by law to be imposed for criminal offenses.

61 P.S. § 331.17 (footnote omitted). The decision, therefore, whether to parole prisoners whose aggregate maximum consecutive sentence imposed equals or exceeds two years is within the domain of the Parole Board, even if each and every individual component maximum sentence would have been less than two years. Harris, 423 Pa.Super. at 197-202, 620 A.2d at 1179-81. “Upon aggregation the trial court loses its authority over the aggregated sentence.” Id. 620 A.2d at 1181.

The trial court relied upon the Commonwealth Court’s opinion in Abraham v. Department of Corrections of the Commonwealth of Pennsylvania, 150 Pa.Commw. 81, 615 A.2d 814 (1992), aff'd, 535 Pa. 122, 634 A.2d 214 (1993), in supporting a contrary proposition to our holding in Harris. In Abraham the Commonwealth Court stated that “for the purpose of determining place of confinement and parole, a county sentence shall not be aggregated with any later-imposed sentence.” Id. at 95, 615 A.2d at 820. The only issue in Abraham, however, was determining the proper place of confinement for prisoners whose aggregate maximum sentence is five or more years. Because the court in Abraham was dealing with the situs of a prisoner’s confinement, any reference to a determination of who has the authority over the decision to grant parole was obiter dictum.

We reaffirm our recent analysis of Abraham: “Decisions of the Commonwealth Court are not binding on this Court and should be followed only when the reasoning contained therein is persuasive. Based on our own analysis of the pertinent statutes ... we find that the Commonwealth Court’s discussion in Abraham was not only unnecessary but unpersuasive.” Harris, 423 Pa.Super. at 207-08, 620 A.2d at 1184 (citation omitted). In Harris we held that the Commonwealth Court ignored “the plain meaning of the language of section 331.17.” Id.

The only reason we revisit this issue is because our Supreme Court affirmed, per curiam, the order in Abraham. Abraham v. Dept. of Corrections of Pennsylvania, 535 Pa. 122, 634 A.2d 214 (1994). Appellees argue that this decision by the Supreme Court overruled, sub silentio, our decision in Harris. We disagree. “[A] sub silentio overruling will rarely be found to [be] ... intended.” Commonwealth v. Cragle, 281 Pa.Super. 434, 422 A.2d 547, 549 (1980). The Supreme Court’s ruling only affirmed, without opinion, the Commonwealth Court’s order issued in Abraham, an order dealing strictly with assigning the appropriate (state or county) place of confinement. We do not believe that the Court intended to overrule Harris. See Commonwealth v. Johnson, 399 Pa.Super. 266, 272, 582 A.2d 336, 339 (1990) (refusing to find a holding overruled sub silentio when different issues were presented); cf. Harris, 423 Pa.Super. at 201-02, 620 A.2d at 1181 (finding that a sentencing court was not given power to parole a criminal defendant serving a five- to ten-year sentence by our Supreme Court’s per curiam order issued in Georgevich v. Court of Common Pleas of Allegheny County, 510 Pa. 285, 507 A.2d 812 (1986), when that order did not mention this type of aggregate sentence). We hold that Harris is still fully applicable to cases such as the one here on appeal. The decision of whether or not to parole a person whose aggregate maximum consecutive sentence is equal to or exceeds two years is the Parole Board’s, notwithstanding the fact that each of the individual component sentences had a maximum of less than two years.

Appellee was improperly granted an early parole. Order reversed. Remanded for proceedings consistent with this decision. Jurisdiction relinquished.

      . The Commonwealth has or will have raised this same issue in appealing from the orders granting early parole in the following cases: Commonwealth v. Hall, Nos. 1380 and 1381 Philadelphia 1994; Commonwealth v. Tilghman, No. 1350 Philadelphia 1994; Commonwealth v. Palmer Daley, No. 1351 Philadelphia 1994; Commonwealth v. Jack Glover, Nos. 1449 and 1509 Philadelphia 1994; Commonwealth v. Clifford Ferron, Nos. 1660 and 1663 Philadelphia 1994; Commonwealth v. Donald Brown, No. 1943 Philadelphia 1994; Commonwealth v. Richard Sanders, No. 2258 Philadelphia 1994; Commonwealth v. Marcellus Hopkins, No. 2441 Philadelphia 1994.

      . "Whenever the court determines that a sentence should be served consecutively to one being imposed by the court, or to one previously imposed, the court shall indicate the minimum sentence to be served for the total of all offenses with respect to which sentence is imposed. Such minimum sentence shall not exceed pne-half of the maximum sentence imposed." 42 Pa.C.S.A. § 9757. See also Abraham v. Department of Corrections of the Commonwealth of Pennsylvania, 150 Pa. Commw. 81, 615 A.2d 814 (1992), aff'd, 535 Pa. 122, 634 A.2d 214 (1993) (aggregating consecutive sentences is mandatory; since this is not discretionary with the trial court, this interpretation of 42 Pa.C.S.A. Section 9757 does not violate the separation of powers doctrine).

      . The court in Abraham was applying 42 Pa.C.S.A. Section 9762 to cases where a prisoner's aggregate maximum consecutive sentence, as opposed to the individual component sentences imposed, equals or exceeds five years. This section reads:
      § 9762. Sentence Proceeding: place of confinement
      All persons sentenced for a total or partial confinement for:
      (1) maximum terms of five or more years shall be committed to the Bureau of Correction for confinement:
      (2) maximum terms of two years or more but less than five years may be committed to the Bureau of Corrections for confinement or may be committed to a county prison within the jurisdiction of the court:
      (3) maximum terms of less than two years shall be committed to a county prison within the jurisdiction of the court except that as facilities become available on dates and in areas designated by the Governor in proclamations declaring the availability of State correctional facilities, such persons may be committed to the Bureau of Correction for confinement.