author: POPOVICH, Judge: TAMILIA, Judge,

text:
    543 A.2d 1192
    In the Interest of JUSTIN S. and Matthew S. Appeal of MARY ANN F., Natural Mother of Justin S. and Matthew S.
    Superior Court of Pennsylvania.
    Argued Dec. 8, 1987.
    Filed May 31, 1988.

      Richard M. Conte, Jeannette, for appellant.
    Before ROWLEY, TAMILIA and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order of the Westmoreland County Court of Common Pleas awarding custody of the two minor children, Justin S. and Matthew S., to their natural father, Edward S. The appellant, Mary Ann F., is the children’s natural mother and, prior to the court’s decision, had custody of the children. We affirm the order of the court.

The appellant questions whether the lower court, in proceedings under the Juvenile Act, 42 Pa.C.S.A. § 6301, et seq., and the Child Protective Services Law, 11 P.S. § 2201 et seq., can make a disposition as to children which alters an existing custody arrangement without first adjudging the children to be dependent. The appellant further challenges whether the court can restrict her custody rights absent an adjudication identifying her as the perpetrator of the child abuse.

The history of this case is unusual and a thorough review of the pertinent facts is warranted. The record reveals that, at the time of this action’s inception, Justin S., born July 4, 1983, and his brother Matthew S., born March 8, 1981, resided with their natural mother, Mary Ann F. (formally Mary Ann S.), and their mother’s paramour, Roy D. At the initiation of these proceedings, the children’s natural parents were estranged and, during the course of this action, finalized their divorce. Mary Ann F. has since remarried. Her current husband is not associated with this appeal in any manner. Prior to this action, the children’s natural father, Edward S., visited his sons on weekends. During one such visit, Edward S. allegedly physically abused Justin.

On March 24, 1986, after receiving a report of child abuse, the Westmoreland County Children’s Bureau (hereinafter “WCCB”) initiated this case by filing a petition pursuant to the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq., alleging physical abuse as defined by the Child Protective Services Law, 11 P.S. § 2201 et seq. (hereafter “CPSL”), of Justin S. by his natural father. The petition alleged “dependency and abuse” and requested a hearing to adjudicate and dispose of the matter consistent with the best interest of the child. A hearing was scheduled, and all interested parties were notified. On April 1, 1986, the court entered a protective order which directed that Edward S. “shall have supervised visitation with his minor children, Matthew Edward S. and Justin Edward S.” On April 30, 1986, the court appointed William Wiker, Esquire to represent Justin as his guardian ad litem.

After numerous continuances, the first hearing was held on August 5, 1986. At the hearing, the father vehemently denied the allegation of abuse set forth against him. On February 23, 1987, additional hearings were held, and the court entered an order finding Justin S. to be “an abused child.” However, the court was “unable to determine the perpetrator of said abuse.” Consequently, the court “ordered that the natural father have partial custody rights.” The court also ordered that psychological evaluations of the children, parents and grandparents be performed prior to final disposition of the proceedings.

Later the same day, Mary Ann F. registered a complaint with the local police alleging Edward S. had sexually abused ■his minor children approximately fourteen months earlier. Prompted by her allegations, the court immediately ordered that the father’s “partial custodial rights be exercised [only] in the immediate presence of the paternal [grandparents].”

On the morning of February 26, 1987, Justin’s guardian ad litem petitioned the court for an emergency hearing on the recent developments. The court then ordered WCCB to take emergency protective custody of the two minor children, and the caption of the case was amended to include both children. In addition, the court appointed William J. Wiker, Esquire to represent Matthew S. as well as Justin.

Later that day, the guardian ad litem filed an amended petition for the placement of the minor children. Based upon evidence discovered earlier that day, the petition asserted that the mother had fabricated her allegations of sexual abuse and that she had forced her children to accuse unjustly their father of sexual abuse. The guardian ad litem also alleged that the father did not physically abuse Justin as contended originally. After reviewing the amended petition, the court promptly directed WCCB to relinquish custody of the children to their father.

A hearing was held on February 27, 1987, and evidence in support of the guardian ad litem’s allegations, i.e. Mary Ann F. coerced her children into relating fictional accounts of abuse to WCCB officials and Edward S. was not responsible for any such abuse, was presented. The court-appointed psychiatrist expressed deep concern about the mother’s “vindictive attitude and malice.” He further testified that Matthew revealed to him that the true perpetrator of the physical abuse of Justin was the mother’s paramour, Roy D. The court, having found the mother’s testimony denying the guardian ad litem’s allegations to be “simply incredible,” granted custody of the children to their natural father. The court then limited the mother to supervised visitation with the children until a disposition hearing could be held on March 26, 1987. Subsequently, WCCB filed a petition for reconsideration of the court’s order of February 23, 1987. This petition requested further hearings to determine the true identify of the perpetrator of the child abuse.

Following the disposition hearing on March 26, 1987, the court was still unable to identify positively the perpetrator of the physical abuse of Justin. However, exculpatory evidence absolutely eliminated the children’s natural father, Edward S., as a suspect. The court believed the perpetrator could only be one of the following: the mother, the mother’s brother, or one of the mother's “boyfriends,” such as Roy D. The court stated, “It was abundantly clear that the mother maliciously coached the children into reporting the incidents of sexual abuse as a means of preventing the natural father from seeing his children.”

The court disposed of the case on March 26, 1987, as follows: Edward S. was awarded custody of his two minor children, Justin and Matthew S.; WCCB was ordered to provide general protective services for the youths; the parents were ordered to undergo “parenting counselling”; WCCB was ordered to arrange for Mary Ann F.’s supervised visitation of her minor children; and, the court found no reason to disturb their order of February 23, 1987 which found Justin to be abused but did not name the perpetrator. Mary Ann F.’ then petitioned the court for reconsideration of its decision. The court refused, and this appeal followed.

This appeal presents an interesting question: whether a court is permitted to alter an existing custody arrangement between a child’s parents without a determination of “dependency” in a disposition proceeding initiated pursuant to the Juvenile Act and the Child Protective Services Law.

Before discussing the substantive issues of this case, a brief outline of the relevant provisions of the Juvenile Act and the Child Protective Services Law is appropriate. The primary purpose of the Juvenile Act is the preservation of family unity whenever possible. In the Interest of Ryan Michael C., 294 Pa.Super. 417, 440 A.2d 535, 536-537 (1982). This purpose is expressed in 42 Pa.C.S.A. § 6301(b) which, in relevant part reads:

(b) Purposes. — This chapter shall be interpreted and construed as to effectuate the following purposes:
(1) To preserve the unity of the family whenever possible and to provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of the chapter.
(3) To achieve the foregoing purposes in a family environment whenever possible, separating the child from parents only when necessary for his welfare or in the interest of public safety.

The provisions of the Juvenile Act are applied in a proceeding wherein a child is alleged to be dependent or delinquent. 42 Pa.C.S.A. § 6303(a)(1). For the purposes of this appeal, the Juvenile Act defines a dependent child as one who is “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals[.]” 42 Pa.C.S.A. § 6302. In deference to its desire to protect and preserve the family unit, the legislature will only allow a court to dispose of dependency cases under the Juvenile Act “if the court finds from clear and convincing evidence that a child is dependent[.]” 42 Pa.C.S.A. § 6341(c). However, “[i]f the court finds that the child is not a dependent child ... it shall dismiss the petition and order the child discharged from any detention or other restriction theretofore ordered in the proceeding.” 42 Pa.C.S.A. § 6341(a). The court’s disposition of a dependent child under the Juvenile Act is governed by the provisions of 42 Pa.C.S.A. § 6351 which, in pertinent part, reads:

(a) General Rule. — If the child is found to be a dependent child the court may make any of the following orders of disposition best suited to the protection and physical, mental, and moral welfare of the child:
(1) Permit the child to remain with his parents, guardian, or other custodian, subject to the conditions and limitations as the court prescribes, including supervision as directed by the court for the protection of the child.
(2) Subject to the conditions and limitations as the court prescribes transfer temporary legal custody to any of the following:
(i) Any individual resident within or without the Commonwealth who ... is found by the court to be qualified to receive and care for the child.
(ii) Any agency or other private organization licensed or otherwise authorized by law to receive and care for the child.
(iii) A public agency authorized by law to receive and provide care for the child.

The Child Protective Services Law has a purpose similar to that the Juvenile Act. Its function is to facilitate the protection of abused children, and to preserve and stabilize the family life of abused children. The purpose of the CPSL is fully expressed in 11 P.S. § 2202 which, in part, reads:

Abused children are in urgent need of an effective child protective service to prevent them from suffering further injury and impairment. It is the purpose of this act to encourage more complete reporting of suspected child abuse and to establish in each county a child protective service capable of investigating such reports swiftly and competently, providing protection of children from further abuse and providing rehabilitative services for children and parents involved so as to ensure the child’s well-being and to preserve and stabilize family life wherever appropriate____

The CPSL, in 11 P.S. § 2203, defines child abuse as follows:

[Child abuse is] serious physical or mental injury which is not explained by the available medical history as being accidental, or sexual abuse or sexual exploitation, or serious physical neglect, or a child under 18 years of age, if the injury, abuse or neglect has been caused by the acts or omissions of the child’s parents or by a person responsible for the child’s welfare, or any individual residing in the same home as the child, or a paramour of the child’s parent____

Hearings held under the provisions of the CPSL are generally governed by the procedural and evidentiary rules of the Juvenile Act. 11 P.S. § 2222. Upon consideration of a petition filed under the CPSL by the child’s guardian ad litem, the court has the duty to order appropriate protective service for a child found in need and terminate or alter the conditions of any placement, temporary or permanent of the child. 11 P.S. § 2223.

We begin our analysis by noting that the Juvenile Act provides for dependency and delinquency action, but neither the Juvenile Act nor the CPSL provide for the independent action of “abuse.” In the Interest of R.M.R., 366 Pa.Super. 243, 530 A.2d 1381 (1987); In the Interest of M.B., 356 Pa.Super. 257, 514 A.2d 599 (1986), affirmed per curiam (Slip Opinion, filed March 21, 1988); 42 Pa.C.S.A. § 6303. In a recent decision, In the Interest of R.M.R., supra, 366 Pa.Superior Ct. 243, 530 A.2d 1381, we held that the CPSL does not create or include a separate action for child abuse, and, under the Juvenile Act, a finding of abuse can only be made as a part of dependency proceeding in which abuse is alleged. 366 Pa.Superior Ct. at 260, 530 A.2d at 1389. Thus, under most circumstances, proper disposition of a proceeding in which alteration of an existing custody arrangement is a possible result can occur only after an adjudication of dependency because provisions for adjudication and disposition of abuse actions do not exist in either the Juvenile Act or the CPSL. In the Interest of R.M.R., 366 Pa.Superior Ct. at 260, 530 A.2d at 1389, explaining In the Interest of M.B., 356 Pa.Superior Ct. 257, 514 A.2d 599. Instantly, the lower court erroneously reasoned that the action of abuse did exist. However, this flaw in the court’s analysis does not negate the otherwise sound decision of the court below, and through the following discussion, we will explicate why the lower court did not need to declare the children dependent prior to disposition of the case.

Generally, any attempted disposition of the custody of an infant in a dependency proceeding is improper where the record indicates no finding of dependency was ever made. Helsel v. Blair County Children & Youth Services, 359 Pa.Super. 487, 497, 519 A.2d 456, 461 (1986); In the Interest of Ryan Michael C., 440 A.2d at 536; Hemenway v. Hemenway, 284 Pa.Super. 481, 426 A.2d 149 (1981). As previously stated, the Juvenile Act defines a dependent child as one who “is without proper parental care of control____” 42 Pa.C.S.A. § 6302. Whether a child is lacking proper parental care and control encompasses two discrete questions: 1) Is the child “at this moment without proper parental care or control?”; 2) If so, is such care and control “immediately available?” In the Interest of Anita H, 351 Pa.Super. 342, 505 A.2d 1014, 1015 (1986); In re Barclay, 321 Pa.Super. 417, 468 A.2d 778, 781 (1983); In the Matter of Yeager, 309 Pa.Super. 491, 455 A.2d 717, 719 (1983); In the Matter of Mark T., 296 Pa.Super. 533, 442 A.2d 1179, 1180 (1982). Only if the court concludes by “clear and convincing evidence” that proper parental care and control are not available will it adjudicate a child dependent, and, absent such a finding, custody must be returned to the parents immediately. In the Interest of Anita H, 505 A.2d at 1015; In re Haynes, 326 Pa.Super. 311, 473 A.2d 1365, 1366-67 (1983); In the Interest of Ryan Michael C., 440 A.2d at 536; In the Interest of Theresa E., 287 Pa.Super. 162, 429 A.2d 1150, 1155 (1981). “The standard of ‘clear and convincing evidence’ means ‘testimony [that] is so clear, direct, weighty, and convincing as to enable the [trier of facts] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.’ ” In the Matter of Jackson, 302 Pa.Super. 369, 448 A.2d 1087, 1089 (1982), quoting In re Jackson, 267 Pa.Super. 428, 406 A.2d 1116, 1118 (1979).

Pennsylvania law is clear that the care and protection of a child should be achieved in a family environment whenever possible, and a child should be separated from his parents only when necessary for his welfare or in the public interest. In the Interest of Anita H., 505 A.2d at 1016, 42 Pa.C.S.A. § 6301(b)(3). Further, a child who has been adjudged dependent may not be removed from parental custody unless such separation is clearly necessary. Clear necessity is established when the court has considered alternative dispositions which would allow the child to remain with his parents and determined that those alternatives to separation are unfeasible. In the Interest of Y.P., 353 Pa.Super. 185, 509 A.2d 397, 399 (1986); In the Interest of Ryan Michael C., 440 A.2d at 536-537; In the Interest of Theresa E., 429 at 1156; In the Interest of K.B., 276 Pa.Super. 380, 419 A.2d 508, 515 (1980).

Our standard of review in dependency cases is quite broad, but it is fundamentally limited by our inability to nullify the factfinding responsibilities of the lower court. In the Interest of A.V, 363 Pa.Super. 180, 525 A.2d 778, 779 (1987), dissent of Wieand J.; In re Frank W.D., 315 Pa.Super. 510, 462 A.2d 708, 711 (1983); In re Barclay, 468 A.2d at 782. We must defer to the factual findings of the hearing judge and accord them great weight as he has had an opportunity to observe and rule upon the credibility of the witnesses and parties who have appeared before him. In re Frank W.D., 462 A.2d at 711; In re Barclay, 468 A.2d at 782; In the Interest of Black, 273 Pa.Super. 538, 417 A.2d 1178, 1182 (1980).

After a review of the record, we can discern no reason to doubt the veracity of the lower court’s findings of fact. Clearly, the court was correct when it found, after several evidentiary hearings, that Justin was a physically “abused child” within the meaning of CPSL, 11 P.S. § 2203. Although the court could not identify the actual perpetrator of the abuse, it was able to limit the possible perpetrators to the following: appellant, appellant’s brother, or the appellant’s paramour, Roy D. The court determined that all of the accusations levied against the children’s natural father were absolutely unfounded. The court also found that the appellant had fabricated tales of sexual abuse against the boys’ father which she then coerced her sons into telling the authorities. Based upon those findings, the court concluded that the appellant was unable to provide proper parental care and control of her children. Further, the court stated:

Based upon the evidence presented to this Court, it was not only clear and convincing what course of action this Court had to take, it was evidence without a shadow of a doubt that mandated the order of March 26, 1987. The appellant/mother had so corrupted the children in this case by coaching them to allege that the father had sexually abused them, that this action had to be taken immediately. There wasn’t the slightest doubt in this Court’s mind that if the children stayed in the custody of the mother, that she would continually and repeatedly have the children make unfounded accusations against their father. The effect of this would have placed the father in such a defensive posture that he simply would have forfeited any rights he has to his children, a move the mother obviously desires. Further, the Child Welfare Agency, in this case the Westmoreland County Children’s Bureau, would continually be investigating abuse allegations against the father thus involving unnecessary manpower. More important, however, if the mother continued to have custody of the children, the children themselves would suffer emotionally from such intense pressure from the mother. (Opinion at pp. 11-12).

Finally, the court “found that the father could provide proper care for the children.” (Opinion, p. 11). We will not overrule the lower court’s findings as it is abundantly clear that they are supported by competent evidence.

The appellant’s argument can be separated into two interrelated issues: First, the appellant argues that the lower court erred when it altered the existing custody arrangement without first adjudging her children dependent; and second, the appellant alleges that the court lacked sufficient evidence to determine that she was unable to provide proper parental care and control or that clear necessity dictated modification of her custody rights. We find that both contentions lack merit.

First, we will discuss the appellant’s allegation that the lower court erred when it altered the existing custody arrangement without first adjudging her children dependent. If the court below had awarded custody of her children to a state or private child care agency without a determination of dependency, the appellant would have a valid argument. See In the Interest of Ryan Michael C., 440 A.2d 535, Helsel v. Blair Co. C & Y Services, 519 A.2d 456. Even if her children were declared dependent, the appellant could possibly have regained the custody of her children had the lower court neglected to determine that clear necessity mandated the children’s removal from her custody and placement with an agency. See In the Interest of Theresa E., 429 A.2d 1150. However, we find that, in a dependency proceeding, a court may grant custody of an allegedly dependent child to that child’s non-custodial natural parent without first declaring the child dependent as long as sufficient evidence of dependency exists.

The fundamental purpose of proceedings under the Juvenile Act is to preserve the unity of the family. The care and protection of children are to be achieved in a family environment whenever possible. 42 Pa.C.S.A. § 6301(b)(1), (3). Instantly, the lower court found that the natural father could provide proper parental care and control of the children, and the mother could not. The court found the appellant’s son, Justin, to be an “abused child.” When abuse is alleged as a part of a dependency proceeding, a court’s finding of “abuse” as defined by the CPSL would be sufficient evidence under most circumstances to support an adjudication of dependency. However, a court cannot adjudge a child to be dependent when his non-custodial parent is ready, willing, and able to provide the child with proper parental care and control, especially when the lower court finds that the child was abused while under the custodial parent’s care and control.

This Court previously expressed a similar opinion. Our decision in the case of In the Matter of Mark T, 442 A.2d 1179, is relevant to the case before us. Therein, the mother and father were living apart, with the mother retaining physical custody of the child. The lower court adjudicated the child to be dependent without establishing whether the non-custodial father was able to provide proper parental care and control. We reversed and remanded the case for further hearings, holding that the lower court must examine whether the father was capable of rendering proper parental care and control prior to adjudicating that his son was “dependent.” In the Matter of Mark T., 442 A.2d at 1180. Implied in that decision is our current position that a child whose non-custodial parent is capable and willing to provide proper parental care is not a dependent child within the meaning of 42 Pa.C.S.A. § 6302.

Our recent decision in In the Interest of Anita H., 505 A.2d 1014, is also relevant to this discussion. The facts of In the Interest of Anita H. are as follows. The children’s mother and father were living apart, with the mother retaining physical custody of her three children. At the dependency hearing, the children’s respective natural fathers appeared in an effort to obtain custody of their children. The lower court determined that the children were dependent and granted custody to Children and Youth Services without allowing the fathers to testify. We reversed and remanded the case for further hearings, holding that the children were improperly adjudicated dependent as the court could not adequately rule upon the question of whether proper parental care and control was “immediately available” due to its refusal to hear the testimony concerning the parental fitness of the non-custodial fathers. In the Interest of Anita H., 505 A.2d at 1016. The obvious result of In the Interest of Anita H. is that a non-custodial parent may intervene in a dependency action filed by a third party in order to protect and prevent his or her child from being declared dependent and placed in the custody of a public agency or foster home.

Both cases, In the Matter of Mark T, supra, and In the Interest of Anita H., supra, clearly indicate that it is the duty of the trial court to determine whether the noncustodial parent is capable and willing to render proper parental care and control prior to adjudicating a child dependent. If the court determines that the custodial parent is unable to provide proper parental care and control “at this moment” and that the non-custodial parent is “immediately available” to provide such care, the child is not dependent under the provisions of the Juvenile Act. Consequently, the court must grant custody of the allegedly dependent child to the non-custodial parent. Once custody is granted to the noncustodial parent, “the care, protection, and wholesome mental and physical development of the child” can occur in a family environment as the purpose of the Juvenile Act directs. 42 Pa.C.S.A. § 6301(b). We find that, in the case sub judice, the court below did not err when, without a determination of dependency, it removed the children from the custody of the appellant who was not providing her children with proper parental care and control and placed them in the custody of their natural father with whom proper parental care and control and a stable family life were “immediately available.”

Second, we will discuss the appellant’s allegation that the court lacked sufficient evidence to determine that she was unable to provide proper parental care and control or that clear necessity dictated modification of her custody rights. While it is true that the lower court was unable to name the perpetrator of the physical abuse on Justin, we agree with the trial court that sufficient clear and convincing evidence was presented to support their disposition of the case. We also agree with the court’s determination that the appellant was unable to provide Justin and Matthew with the proper parental care necessary for their physical and emotional health. Previously, this court defied proper parental care as “that care which (1) is geared to the particularized needs of the child and (2) at a minimum, is likely to prevent serious injury to the child.” In the Interest of Pernishek, 268 Pa.Super. 447, 458, 408 A.2d 872, 878 (1979). Instantly, Justin was abused while in the custody of the appellant, and the evidence presented indicated that the perpetrator was likely a member of appellant’s household. Those facts alone are prima facie evidence of child abuse by the appellant. In addition, the appellant’s instant course of action designed to prevent her children from seeing their natural father does not qualify as “care which is geared to the particularized needs of the children].”

The case of In re Frank W.D., 462 A.2d at 709, presents facts similar to those before this Court. Therein, we affirmed the lower court’s classification of an abused child as dependent and removal of the child from the mother’s custody even though the questions of who actually abused the child and when did the abuse actually occur remained unanswered. In re Frank W.D., 462 A.2d at 712. Similarly, the evidence relating to the abuse of Justin would have been sufficient to sustain an adjudication of the children’s dependency if Edward S. had not prevented his sons from being declared dependent.

Additionally, evidence presented at the hearings indicated that the appellant did, in fact, know the true identity of the perpetrator of the abuse. Matthew reportedly told the court-appointed psychologist that his mother knew that it was her paramour, Roy D., who had physically abused his brother. Rather than disclose the name of the abuser, the only visible steps that the appellant chose to take in protection of her children was the fabrication of malicious and vindictive stories about her ex-husband. Thus, the appellant demonstrated an unwillingness to take adequate precautions aimed at protecting her children from possible future abuse. See In the Interest of K.B., 419 A.2d 508 (1980) (mother’s willful failure to take affirmative precautions against possible future abuse was sufficient to support determination of dependency); In re Barclay, 468 A.2d 778 (children mistreated by step-father, and mother did little to prevent abuse, adjudication of dependency proper). We would be derelict in the execution of our duty to protect the mental and physical welfare of the children if we were to reverse the lower court’s decision simply because the court could not precisely identify the person who abused Justin. Moreover, we agree with the lower court’s finding based upon the testimony of the court-appointed psychologist that the appellant’s manifest disregard for the emotional and mental well-being of her children, as evidenced her “vindictive and malicious” attitude towards the children’s father and her fabrication of false statements about him, was sufficiently detrimental to the children’s welfare to support the court’s disposition of this case.

Although our affirmance of the lower court’s decision does not constitute a permanent order, we firmly believe that the court’s decision not only enacted the express purposes of the Juvenile Act and the Child Protective Services Law but also served the best interest of the children. In the Interest of Black, 417 A.2d at 1181 (the interest of safeguarding the permanent welfare of the child dictates decrees concerning children are temporary and subject to modification upon changed conditions); In re Frank W.D., 462 A.2d at 713. In conclusion, we hold that, in a dependency proceeding, a court may grant custody of an allegedly dependent child to that child’s non-custodial natural parent who is capable of providing proper parental care for that child without first declaring the child dependent. Instantly, we find that the lower court correctly awarded the custody of Matthew and Justin S. to their natural father, limiting the appellant to supervised visitation and ordering the family to avail themselves of counselling. Accordingly, the order of court is affirmed.

Order affirmed.

TAMILIA, J., files a dissenting opinion.

TAMILIA, Judge,

dissenting:

I respectfully dissent. The analysis of the majority is correct until it makes a finding that the trial court had the authority to transfer custody to the noncustodial parent without a finding of dependency as to the custodial parent. Authority to make a custodial disposition follows only upon an adjudication of dependency pursuant to the Juvenile Act, 42 Pa.C.S.A. § 6351(a), which provides:

(a) General Rule — If the child is found to be a dependent child the court may make any of the following orders of disposition best suited to the protection and physical, mental, and moral welfare of the child[.] (Emphasis added)

Nowhere in the Juvenile Act is there authority in the court to act without a finding of dependency.

The majority has misread In the Interest of Theresa E., 287 Pa.Super. 162, 429 A.2d 1150 (1981) in holding that a change of custody can be made in a dependency proceeding, without a dependency finding, if one of the parents is not subject to the charge of neglecting the child. The ruling in the case sub judice will foster what always has been denied, the use of dependency proceedings as a substitute for a custody action.

I differ with the majority that a child may not be determined dependent if the out of custody parent is not neglectful and is willing to take the child. It frequently occurs that a child is subject to abuse in one household and needs the intervention of the Children and Youth Services and the court, with their investigative powers, when a traditional custody proceeding might prove ineffective. The fine line between custody actions and dependency actions should not be breached on either side. Here, if there was dependency by the mother, the court should so find and award custody to the father. If the record is not clear as to neglect or abuse but would warrant consideration of custody, based on fitness of the parents and best interest of the child, the dependency action should be dismissed and the parties instructed to proceed in a custody action.

The heavy involvement of the state should be avoided at all cost, but if the evidence is clear and convincing as to abuse and neglect, the protection of the child warrants such a finding. This does not interfere with the underlying philosophy of retaining children within the family when the first alternative for custodian always will be a suitable family member.

Here it would appear dependency would be a proper adjudication and the change of custody would be in order.

I would remand for such a finding.

      . Instantly, this action was initiated pursuant to the provisions of both the Juvenile Act and the CPSL alleging "dependency and abuse.” (N.T., p. 2). Logically, the instant case does not suffer from the problems inherent in the erroneous disposition of a non-existent independent action of "abuse." Consequently, the court possessed the requisite jurisdiction to hear and dispose of this case.

      . Additionally, the appellant raises two meritless issues which we will briefly discuss. First, the appellant contends that the court cannot grant custody to a non-custodial parent in this type of action because a dependency proceeding is not to be regarded as an alternative method for a non-custodial parent to seek custody of the child, citing In the Interest of Theresa E., 429 A.2d at 1155, and 42 Pa.C.S.A. § 6334. While that is true, the appellant fails to cite fully In the Interest of Theresa E., which further holds that there is nothing in the Juvenile Act to prevent a non-custodial parent who is seeking to protect his child from filing a dependency petition, and, consequently, obtaining custody of the child. 429 A.2d at 1155; In re Barclay, 468 A.2d at 780, Moreover, the non-custodial father did not initiate the instant proceeding. In fact, the appellant’s own malicious allegations against her ex-husband instigated this action which ultimately resulted in the reduction of her custodial rights. Second, the appellant contends that the court erred when it granted custody of Matthew to his father simply because the custody of Justin was altered. See In the Interest of Theresa E., 429 A.2d at 1156 (a child should not be found dependent simply because his siblings are). However, the record clearly indicates that the court altered Matthew’s custodial situation based upon a finding that he lacked proper parental care and control independent of the abuse of Justin.

      . The Child Protective Services Law, 11 P.S. § 2222(3), in part, states:
      (3) Evidence that a child has suffered serious physical injury, sexual abuse or serious physical neglect of such a nature as would ordinarily not be sustained or exist except by reason of the acts or omissions of the parent or other person responsible for the welfare of such child shall be prima facie evidence of child abuse by the parent or other person responsible for the child’s welfare.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    543 A.2d 1202
    WILCO ELECTRONIC SYSTEMS, INC., Appellant, v. Gary DAVIS and Grande Associates and Ray Cawley, Ind. and t/a Bucks County Cablevision Waterford Associates and MGM Enterprises, Inc. Pennsylvania Cable Television Association, Appellee. Raymond J. CAWLEY, t/a Bucks County Cablevision, Appellee, v. Ronald GIANCRISTOFARO and Anthony Giancristofaro, t/a Grande Associates and Colonial Estates and Wilco Electronic Systems, Inc., Waterford Associates and MGM Enterprises, Inc., Pennsylvania Cable Television Association, Appellants.
    Superior Court of Pennsylvania.
    Argued March 24, 1988.
    Filed June 8, 1988.

      Alvin Freiberg, Philadelphia, for appellants.
    Randolph A. Scott, Warrington, for appellees.
    Before CAVANAUGH, OLSZEWSKI and MELINSON, JJ.
   CAVANAUGH, Judge:

The two principal issues involved in this case are (1) whether a contract between the owner of a rental apartment complex and the provider of television services which grants the television company the right to provide non-cable pay television services and restricts anyone else from providing “any pay TV system, cable or otherwise” to the tenants is unenforceable as violative of the First Amendment to the United States Constitution and (2) whether the contract is unenforceable as being in violation of the Landlord and Tenants Act, 68 Pa.S. § 250.554.

This-case involves two appeals in cases which were consolidated in this court as well as in the court below. The background is quite complex and an understanding of the facts is necessary to place the issues in focus. The original Plaintiff, .Wilco Electronic Systems, Inc., which is referred to in this opinion as “Wilco”, and is an appellant herein, is a Pennsylvania corporation engaged in the business of selling, installing and operating cable and non-cable television. On December 17, 1979 Wilco entered into a contract with the then owner of a property now known as “Colonial Estates”, which is an apartment complex containing some 194 units, to install a pay television system together with the wiring, connections, fixtures, accessories and the like. The contract granted an exclusive right to Wilco to operate the television system within the premises for a period of ten years commencing on January 1, 1980 and ending December 31, 1989. The agreement also specifically prohibited any other party from using or installing a cable television system on the premises. The agreement gave Wilco an exclusive right to provide pay television to the tenants at Colonial Estates at charges to be determined between Wilco and the owner of the premises.

Apparently, the contract was performed by the parties in interest without incident until September, 1985. At that time it was ascertained that Bucks County Cable Television, an appellee herein, referred to in this opinion as BCC, had employees on the grounds of Colonial Estates who were digging trenches to install cable television and had cut Wilco’s cables on the grounds of Colonial Estates. BCC was also making cable installations in apartments within the complex which desired such cable television.

In late 1985 Wilco commenced an action in equity seeking a preliminary injunction against BCC and the then owner of Colonial Estates. Subsequently, Raymond J. Cawley, individually and trading as Bucks County Cablevision (BCC) commenced an action against Wilco and individuals trading and doing business as Colonial Estates. BCC sought an injunction against Wilco and Colonial Estates prohibiting them from restricting the plaintiff’s access to Colonial Estates “for the purpose of providing cable television services to the residents of Colonial Estates.”

The actions commenced by Wilco and BCC were consolidated for hearing which was held before Biester, J. The court entered an Adjudication and Decree Nisi including findings of fact and conclusions of law and found in favor of BCC. Wilco’s motion for post-trial relief was denied and it has appealed to this court.

The first issue for our consideration is whether the court erred in finding that the contract between Wilco and Colonial Estates which gave Wilco the exclusive right to provide television services to the residents of Colonial Estates was unenforceable as violative of BCC’s rights under the First Amendment to the Constitution of the United States. We find that the court below erred in its determination that enforcement of the restrictive covenants in the contract between Wilco and Colonial Estates would constitute state action in violation of The First Amendment of the United States Constitution. The court below relied on Shelly v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948) which reversed the state court’s enforcement of a racially restrictive covenant. In our opinion, Shelly v. Kraemer, supra, is not applicable to this case, as no state action was involved in the matter before us. In Parks v. “Mr. Ford", 556 F.2d 132, 136 N.6a (3rd Cir.1977) the court noted a distinction between the situation where state action is deemed to exist for constitutional purposes and when it does not so exist. The court held that where a state court enforces the right of private persons to take actions which are permitted but not compelled by law, there is no state action for constitutional purposes in the absence of a finding that racial discrimination is involved as existed in the Shelly case supra. In Parks it was held that possession of an automobile under the common law rule which gives a repairman a possessory lien on vehicles he repaired did not constitute state action. It is evident that in the case before us there is no racial discrimination and enforcement of the contract between Wilco and Colonial Estates would not involve state action in the constitutional sense.

In Luria Brothers and Company v. Allen, 672 F.2d 347 (3rd Cir.1982), the Court of Appeals held that judicial enforcement of a contract cannot convert an otherwise private matter into state action. The court stated at 672 F.2d 354: The court quoted from Flagg Bros., Inc. v. Brooks, 436 U.S. 149 at 165, 98 S.Ct. 1729 at 1738, 56 L.Ed.2d 185 (1978). Under the Federal Constitution, the First Amendment cannot be abridged by individual property owners. The action complained of must stem from state action, not from purely private conduct. Flagg Bros., Inc. v. Brooks, supra. See also Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976).

If the mere denial [or grant] of judicial relief is considered sufficient encouragement to make the State responsible for those private acts, all private deprivations of property would be converted into public acts whenever the State, for whatever reason, denies [or grants] relief sought by the putative property owner.

The court below found that BCC did extensive work at Colonial Estates’ property which included the laying of approximately 3000 feet of feeder lines in order to wire several of the buildings. The feeder lines were laid by using a vibratory plough which vibrates the soil and feeds the lines down a chute into the ground. BCC also installed wiring on the interior of 9 of the 19 buildings at the Colonial Estates apartment complex which ran into the individual apartments. In connection with the interior wiring in 8 of the 9 wired buildings, BCC installed a piece of equipment called an Intonet System which is a remote location for the adjustable portion of the cable TV converter. The Intonet Systems were installed in the laundry rooms of the Colonial Estates buildings. During the course of the underground installation by BCC, Wilco’s underground wires were cut in several places.

In order for the enforcement of the contract between Colonial Estates and Wilco to violate the First Amendment, the state would have to be involved in some way in the action of the landowner in permitting Wilco to have the exclusive right to maintain cables and related activities on its property and to exclude other cable television companies, In Western Pennsylvania Socialist Workers v. Connecticut General Life Insurance Co., 335 Pa.Super. 493, 485 A.2d 1 (1984), we held that the First Amendment did not grant the right to a politically oriented group to use a privately owned shopping center to disseminate information and collect signatures on a nominating petition. We held that in the absence of state action, the acts of purely private actors do not violate the federal constitution. We stated at 335 Pa.Super. 506, 485 A.2d 7-8:

There are three instances in which a supposedly ‘private’ actor has been held subject to federal constitutional restraints. The tests, adopted by the federal courts, although not binding upon us, are nevertheless helpful and, it may be added, consistent with Pennsylvania law. They have been discussed at length in recent federal decisions and hold that federal constitutional restraints will be applied where there is a ‘symbiotic relationship’ between a private actor and the government; where there is a sufficient ‘nexus’ between the actor and the government; and where the actor has assumed a ‘public function’ so as to occupy the position of an arm of the state for constitutional purposes.

Since none of these circumstances applied, the court below properly refused to enjoin the property owner from excluding the plaintiffs from its shopping center. In Crozer Chester Medical Center v. May, 352 Pa.Super. 51, 506 A.2d 1377 (1986), we upheld an injunction against protestors who were prohibited from entering the private property of a hospital. We again noted that the First and Fourteenth Amendments' are limitations on state action and not on actions by the owners of private property used only for private purposes, citing Central Hardware Company v. National Labor Relations Board, 407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122 (1972). Relying on Western Pennsylvania Socialist Workers, supra, we determined that there was neither a symbiotic relationship nor a nexus between the hospital and state government. Nor did the hospital assume a public function so as to become the arm of the state for constitutional purposes.

In carrying out its cable television activities, BCC was clearly a trespasser on the property of Colonial Estates unless it was clothed with the protection of freedom of speech under the First Amendment to the United States Constitution. BCC states that “The essence of Bucks County Cablevision’s position is that it is a First Amendment speaker no less than newspapers, magazines and other pamphleteers.” It argues that Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 106 S.Ct. 2034, 90 L.Ed.2d 480 (1986) “clearly indicates that First Amendment interests are applicable to the activities of cable television companies.” That case involved a municipality’s refusal to grant a franchise to a cable television company on the grounds that there was lack of space on public utility structures and that to do so would result in disruption of public rights of way. The district court dismissed the free speech contention. The Court of Appeals for the 9th Circuit reversed and remanded for further proceedings. The United States Supreme Court affirmed the Court of Appeals. While the Supreme Court noted that the complainant’s factual allegations implicated protected speech, the inquiry did not end there. The court stated at 476 U.S. at 495, 106 S.Ct. at 2038, 90 L.Ed.2d 487-8:

Moreover, where speech and conduct are joined in a single course of action, the First Amendment values must be balanced against competing societal interests. See, e.g., Members of the City Council v. Taxpayers for Vincent, supra, [466 U.S. 789] at 805-807, 80 LEd2d 772, 104 SCt 2118 [at 2128-2130]; United States v. O’Brien, 391 US 367, 376-377, 20 LEd2d 672, 88 SCt 1673 (1968). We do not think however, that it is desirable to express any more detailed views on the proper resolution of the First Amendment question raised by the respondent’s complaint and the City’s responses to it without a fuller development of the disputed issues in the case. We think that we may know more than we know now about how the constitutional issues should be resolved when we know more about the present uses of the public utility poles and rights-of-way and how respondent proposes to install and maintain its facilities on them.

This case clearly does not go so far as to support BCC’s claim of a right to enter private property to install its cable televisions where the owner of the property objects and has entered a contract which excludes any other company from providing services. The Supreme Court’s decision goes to the power of a municipality to refuse to franchise a cable television company, an issue with which we are not concerned.

The court below found Loretto v. Teleprompter CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) not applicable to the facts before us. While we agree with this conclusion, the case is nevertheless instructive. In Loretto, supra, state law required a landlord to allow cable television on his land. The United States Supreme Court held that this constituted a taking of property which required compensation under the Fifth and Fourteenth Amendments of the Constitution. In the instant case, there was no statute that permitted BCC to enter private property without the consent of the owner, and in violation of a contract giving exclusive rights to another party. However, in the absence of a statute such as the one involved in Loretto, BCC had no right to enter the private property of Colonial Estates, even if it were willing to compensate the owners for confiscation of its property.

A case analogous to our own is Cox Cable San Diego, Inc. v. Bookspan, California Court of Appeals, 195 Cal.App.3d 22, 240 Cal.Rptr. 407 (1987). The Cox Cable Company sought an injunction to allow it to reconnect subscribers at Woodlawn Garden Apartments. The owner of the apartments had disconnected the Cox Cable television system at his apartments in favor of a satellite system called Ultronics, Inc. The motion for preliminary injunction was denied and the Superior Court affirmed. Cox Cable argued unsuccessfully that the owner could not exclude it in favor of Ultronics without violating First Amendment rights. The court rejected Cox’s argument that the apartment complex had the attributes of a quasi municipality and stated at slip opinion, page 3:

The cases on which Cox relies all involve, at most, transitory trespasses by [leafleteers] and speakers. None involve the sort of permanent physical occupation sought here. In none of the cited cases were the individuals seeking to erect a permanent structure. Those cases would be more similar to Cox’s situation if, in those cases, the individuals were given the right to build a permanent kiosk to disseminate information or to erect a permanent stage with attached amplification equipment for speeches. Cox’s requested right of access here is analogous to a publisher seeking a right to cut slots in apartment doors so it can deliver its newspapers directly. The First Amendment has yet to be extended so far.
Here we have involved a private apartment complex. The intrusion here does dilute the owner’s property rights. As the Supreme Court noted in Loretto v. Telepromoter Manhattan CATV Corp., supra, 458 U.S. at page 436 [102 S.Ct. at page 3176], where an owner is compelled to allow a cable company to attach its equipment to his or her building, ‘even though the owner may retain the bare legal right to dispose of the occupied space by transfer or sale, the permanent occupation of that space by a stranger will ordinarily empty the right of any value, since the purchaser will also be unable to make any use of the property.’

Cable Investments, Inc. v. Woolley, 680 F.Supp. 174 (M.D.Pa.1987), involved a case in which the plaintiff had a non-exclusive franchise to provide cable television service in York County. The owner of the apartment complex to which plaintiff had provided cable television service told plaintiff that it could no longer provide such service. The owner threatened the company with civil and criminal penalties if it entered the premises. The court held that there were no First Amendment rights involved as there was no state action. It also opined that the court in Wilco Electronics Systems, Inc. v. Davis, supra, had misapplied Shelley v. Kraemer, supra.

We hold that the contract between the owner of Colonial Estates, a rental apartment complex and Wilco, which granted Wilco the exclusive right to provide non-cable television service to the apartment, and which excluded other cable television companies, is enforceable and does not violate any rights under the First Amendment to the United States Constitution.

The second issue which we must decide is whether the contract between Colonial Estates and Wilco was unenforceable under the Landlord and Tenants Act, 68 Pa.S. § 250.554 which provides in pertinent part:

§ 250.554. Tenant’s rights

The tenant shall have a right to invite to his apartment or dwelling unit such employees, business visitors, tradesmen, deliverymen, suppliers of goods and services, and the like as he wishes so long as his obligations as a tenant under this article are observed. The tenant also shall have the right to invite to his apartment or dwelling unit, for a reasonable period of time, such social guest, family or visitors as he wishes so long as his obligations as a tenant under this article are observed. These rights may not be waived by any provisions of a written rental agreement and the landlord and/or owner may not charge any fee, service charge or additional rent to the tenant for exercising his rights under this act.
It is the intent of this article to insure that the landlord may in no way restrict the tenant’s right to purchase goods, services and the like from a source of the tenant’s choosing and as a consequence any provision in a written agreement attempting to limit this right shall be void and unenforceable in the courts of this Commonwealth.

The court below held that the contract was unenforceable on the basis that the tenant may choose the services that may come into his home. “For example, a tenant may choose any telephone company he likes to provide telephone service to his apartment.” Wilco Electronic Systems, Inc. v. Davis, 50 Bucks County L.R. 243, 247 (1987). Further, the court reasoned that a landlord could not designate A.T. & T. as the official telephone company of the apartment complex and preclude tenants from using Sprint or MCI. In T.C. Harrisburg v. Sammons Communications, 107 Dauphin C.R. 411 (1987), opinion by Dowling, J. the court did not find the reasoning of Biester, J. persuasive and held that § 250.554 does not give a cable television company the right to have its equipment installed on private property and to provide cable services to apartment dwellers without the property owner’s consent. In discussing the reasoning of the court in Wilco Electronic Systems, Inc. v. Davis, supra, that a landlord may not restrict the type of telephone service that a tenant desires, the court in Sammons, supra, stated at page 417: “Yet to carry this reasoning a step forward, would a tenant who prefers gas heat over electrical have the right to insist, against the landlord’s objection, on the installation of the former?” The Court of Common Pleas of York County in Weaver v. Craig Dallameyer, 101 York L.R. 110 (1987), opinion by Erb, P.J., held that the tenants of a mobile home park were not authorized to request a cable television company to come onto the landlord’s property under § 250.554 where the providing of cable television required a permanent physical occupation of the landlord’s private property. The court in Weaver, supra, followed the decision of T.C. Harrisburg Company and T.C. Harrisburg East Company v. Sammons Communication of Pennsylvania, supra. See also Cable Investments, Inc. v. Woolley, supra, in which the District Court held that the tenants of an apartment complex do not have the right to purchase cable television of their choice under § 250.554.

We hold that the Landlord and Tenants Act does not grant to the operators of cable television services the right to install their cables and other equipment on private property without the consent of the owners. Although, under the Act, the landlord may not restrict a tenant’s right to “goods, services and the like”, this does not encompass cable television. The very nature of cable television involves tangible equipment which must be permanently installed and may result in substantial damage to property as it did in this case.

Another issue raised by Wilco on appeal is that the court below erred in not finding that counsel for BCC violated the code of professional responsibility by representing BCC in this case. The basis for this contention is that BCC had entered a contract with the Board of Supervisors of Warrington Township which was signed by Randolph A. Scott, Esq., as a Supervisor, and he was also counsel for BCC in the trial below. The contract gave BCC nonexclusive permission to provide cable television service to residents of Warrington Township. Mr. Scott was also a Township Supervisor at the time of the trial. Shortly after the trial commenced, Mr. Scott told the court and counsel involved in the case that he had been reappointed as a Supervisor of Warrington Township about two weeks previously. Counsel for Wilco felt that this was a serious problem. The court stated:

THE COURT: I’m going to have to hear some more of this case, and we’ll see what it looks like. I will say to Mr. Scott, if it looks to me as though it’s inappropriate, I’ll tell you. And I’ll expect as an officer of the court we’ll deal with that problem at the time.
MR. SCOTT: Certainly would.

Counsel for Wilco objected to Mr. Scott’s participation as counsel for BCC under DR 5-101 of the Code of Professional Responsibility which provided at the times relevant to this case that “a lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness.” Counsel for Wilco read this provision to the court and stated that he felt that he was at a disadvantage in trying the case where his opponent was chairman of the Board of Supervisors which signed the contract. The court inquired as to whether counsel for Wilco intended to call Mr. Scott as a witness and he replied that he did not know. In fact, Mr. Scott was not called by either side as a witness and did not testify. We find no error by the court below in allowing Mr. Scott to represent BCC at trial. He did not testify as a witness and there was no need for him to be disqualified as counsel.

One final matter remains for our consideration. The court below found that Wilco had sustained damages in the amount of $1,453.95 as a result of BCC’s action in coming onto the property of Colonial Estates and cutting some of Wilco’s cables. We find that the award was justified by the evidence and sustain that portion of the final decree.

The decree is affirmed as to the award of damages. While a court must exercise its discretion in granting a preliminary injunction, the refusal to grant such an injunction will be reversed where the court has made a manifest error of law. Buttonwood Farms, Inc. v. Carson, 329 Pa.Super. 312, 478 A.2d 484 (1984). Accordingly, the decree is reversed as to the denial of the grant of a preliminary injunction in favor of Wilco and against BCC, and such preliminary injunction is granted. The decree is affirmed in its denial of a preliminary injunction in favor of BCC. The case is remanded for the entry of a permanent injunction in favor of Wilco in conformity with this opinion. This court relinquishes jurisdiction.

      . The contract between the owner of the real estate involved and Wilco provided in pertinent part:
      1. Owner does hereby grant to Wilco the right to install a non-cable pay TV system in premises at WARRINGTON VALLEY APARTMENTS 1700 Street Road, Warrington, Pennsylvania together with all wiring, connections, fixtures, accessories, and all other items, parts or things in connection thereto, and to maintain and operate same exclusively within said premises for a term of ten (10) years commencing the 1st day of January, 1980, and ending the last day of December, 1989. Said construction and installation shall be performed in a neat workmanlike manner. Further, except as herein provided, no other party or entity shall be allowed by Owner to use, repair, service, install, or otherwise be involved with any pay TV system, cable or otherwise, in the said premises. Further, during such term Wilco shall have the exclusive right to provide a pay TV system to the tenants of said premises at a charge to be determined by Wilco and Owner.

      . The court below made the following findings of fact:
      1. Wilco Electronic Systems, Inc. (Wilco) is a Pennsylvania corporation engaged in the business of selling, installing and operating cable and non-cable television and other electronic systems.
      2. Colonial Estates is a multifamily apartment complex comprised of nineteen buildings and containing 192 dwelling units available to tenants. It is located at 1700 Street Road, Warrington, Bucks County, Pennsylvania.
      3. Ronald Giancristofaro and Anthony Giancristofaro are adult individuals doing business as Grande Associates and are the real owners in interest of Colonial Estates.
      4. Raymond J. Cawley is an adult individual and general partner of the business known as Bucks County Cablevision.

      . The decree nisi of January 13, 1987 provided in pertinent part:
      It is hereby Ordered, Directed and Decreed that the Preliminary Injunction sought by Wilco Electronic Systems, Inc. is denied, and that the Preliminary Injunction sought by Bucks County Cablevision is also denied. Bucks County Cablevision is permitted to provide cable services to its customers at Colonial Estates provided they compensate the owners of Colonial Estates for any actual damages that may be caused in providing such services. The Court will supervise, if necessary, the setting of compensation for damages as they may occur. It is further ordered that Wilco Electronic System, Inc.’s claim for equitable relief for damages is granted and that Bucks County Cablevision shall pay to Wilco Electronic Systems the sum of One Thousand Four Hundred Fifty Three Dollars and Ninety five cents ($1,453.95).

      . The First Amendment to the United States Constitution provides:
      Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

      . In the amicus curiae brief filed by the Pennsylvania Cable Television Association on behalf of BCC, it acknowledges that Colonial Estates "is entitled to exclude all cable television providers”, but argues that the property owner could not permit Wilco to conduct television operations and exclude other cable companies.

      . Similarly, we are not concerned with the issue of whether a governmental unit may grant an exclusive right to a cable television company to market cable television. It is not clear that cable television is entitled to co-extensive protection with the press media. In Community Communications v. City of Boulder, 660 F.2d 1370 (10th Cir.1981), the Court of Appeals held that on the facts before it, cable television was more analogous to broadcasting than to newspapers and that a natural monopoly situation may justify an exclusive franchise scheme. The court noted in Group W. Cable, Inc. v. City of Santa Cruz, 669 F.Supp. 954, 961 (N.D.Cal.1987): “[t]he precise degree of First Amendment protection due cable television, a relatively recent addition to the media, is in doubt.” The Court of Appeals dealt with the grant of a franchise by city government in Central Telecommunications v. TCI Cablevision, 800 F.2d 711, 716 (8th Cir.1986) stating:
      We recognize that there are profound first amendment implications inherent in the regulation of cable operators. Changes in technology such as were presented in the Omega case [Omega Satellite Products v. City of Indianapolis, 694 F.2d 119 (7th Cir.1982) ] may require a different approach to exclusive franchising schemes. We are also aware of the difficulties inherent in the regulation of cable television programming.

      . In Loretto, supra, the Supreme Court pointed out a constitutional distinction between a permanent occupation and a temporary physical invasion. Teleprompter’s cable installation constituted a taking in the traditional sense as it involved a direct physical attachment of plates, boxes, and wires on the building and completely occupied some space on the roof and exterior walls. The court distinguished this from the factual situation in PruneYard Shopping Center v.

        Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980), in which the court upheld a state constitutional requirement that shopping center owners permit individuals access to their shopping centers to speak and distribute pamphlets. The court noted that the invasion for this purpose was limited in nature.

      . On appeal, the appellant raises for the first time other canons of the Code of Professional Conduct, but these issues are waived, as they were not raised in the court below. In civil cases as well as criminal, issues not raised at the trial stage will not be considered on appellate review. DeMarco v. Jones & Laughlin Steel Corp., 513 Pa. 526, 522 A.2d 26 (1987); Glomb v. Glomb, 366 Pa.Super. 206, 530 A.2d 1362 (1987). See also Pa.R.A.P. 302.

      . With respect to Mr. Scott testifying, counsel for Wilco stated:
      I then raised the fact that I believe that he will become an important witness, which I still believe. And it is my understanding under the Code of Professional Responsibility that an attorney who will be a witness should not try the case, nor should his office.
      Now, of course, I couldn’t raise it by preliminary objection because I didn’t understand that as a problem until I got the contract, which was after I did my preliminary objections. However, it is my belief, and still is, and I’m not suggesting for a moment any impropriety on their part, and I don’t want the Court to think that, but as I understand the Canons of Professional Ethics when an attorney is potentially or actually an important witness, which I believe would be the case here, at least in their action, which they're also raising as defense to their — the contract here also raising as a defense to our action, that under those circumstances Mr. Scott and his office should not be representing this party with whom he contracted on behalf of the township. And now that becomes one of the allegedly vital issues of the case.


author: OLSZEWSKI, Judge:

text:
    543 A.2d 1210
    COMMONWEALTH of Pennsylvania v. Paul E. GILLY, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 28, 1988.
    Filed June 8, 1988.

      Mark F. Geary, Pittsburgh, for appellant.
    Paul M. Petro, Assistant District Attorney, Donora, for Com., appellee.
    Before OLSZEWSKI, WATKINS and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

This case comes before us following the denial of a petition for relief brought pursuant to the Post Conviction Hearing Act, 42 Pa.C.S.A. §§ 9541-9551 (hereinafter “PCHA”). Finding no merit in this appeal, we affirm the order.

On March 2, 1972, petitioner Paul Gilly was convicted by a jury of three counts of murder for his participation in the brutal deaths of Jock Yablonski, his wife, and daughter in December of 1969. Following his conviction, petitioner filed a post-trial motion for a new trial, which was denied on September 29, 1972. Sentencing was delayed, however, while Gilly cooperated with the Commonwealth in the prosecution and conviction of two individuals twho took part in the murders — W.A. “Tony” Boyle and William Prater. Finally, on September 3, 1976, Gilly was sentenced to three concurrent life sentences. No motion to modify the sentence was filed, and no direct appeal was taken from the judgment of sentence.

In July of 1982, Gilly filed a PCHA petition claiming he was denied his rights to a fair trial by jury and to the effective assistance of trial counsel. Petitioner also claimed the trial court erred in refusing to grant him a change of trial venue. According to the record, neither the court nor the Commonwealth acted upon the petition. An order was entered, however, on November 29, 1984, granting Gilly’s request to withdraw the PCHA petition.

On January 9, 1987, Gilly filed this second PCHA petition raising three claims: (1) the trial court erred in denying the request for a change of venue; (2) the “key-man” jury selection process was not fair; and (3) because the prosecuting attorney, Richard Sprague, failed to abide by his promises to Gilly regarding a sentence recommendation, he should be compelled to fulfill his part of the alleged sentencing agreement. In May of 1987, Gilly filed an amended PCHA petition claiming the sentencing court failed to inform him of his appellate rights as provided by Pa.R.Crim.P. 1405(b). A hearing was held on the matter on May 13, 1987. By means of a comprehensive opinion and order dated July 31, 1987, the PCHA petition was denied. This timely appeal followed.

One question is raised for our consideration: because petitioner was not informed of his right to appeal at the time of sentencing, should he be permitted to appeal nunc pro tunc?

An accused enjoys a virtually unqualified right to appeal a judgment of sentence. In determining the scope of this appellate right, this Court has recently stated:

It is axiomatic that in our scheme of justice an accused has the right to appeal his sentence [an accused has an absolute right to appeal pursuant to the Pennsylvania Constitution, Art. V, Sec. 9] and to the assistance of appointed counsel, if indigent, in doing so, Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). Concomitantly, the accused has the ability to “waive” his right to counsel and to an appeal. As our Supreme Court capsulized in Commonwealth v. Norman, 447 Pa. 217, 285 A.2d 523 (1971):
In determining whether a defendant has waived a constitutional right it is well settled that the federal standards of waiver first enunciated in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) apply. A waiver of a constitutional right must be “an intentional relinquishment or abandonment of a known right or privilege.” 304 U.S. at 464, 58 S.Ct. at 1023. The presumption must always be against the waiver of a constitutional right. Glasser v. United States, 315 U.S. 60, 70-71, 62 S.Ct. 457, 463-465, 86 L.Ed. 680 (1942). Nor can waiver be presumed in a silent record case. The United States Supreme Court explicitly ruled in Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962): “Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.” (Emphasis added).
Id. at 516, 82 S.Ct. at 890. Thus this Court is constitutionally bound to place the burden of proving waiver on the Commonwealth. Whether defendant was represented by private or court-appointed counsel, or whether his trial took place before or after the Douglas decision, are distinctions with no legal significance. Commonwealth v. Ezell, [431 Pa. 101, 244 A.2d 646 (1968) ]; Commonwealth ex rel Stevens v. Myers, [419 Pa. 1, 213 A.2d 613 (1965)].
447 Pa. at 221-222, 285 A.2d at 526____ Furthermore, the Commonwealth’s burden of proving waiver of one’s appellate rights by a preponderance of the evidence, in silent record cases, has been settled law in this jurisdiction since 1968. Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968).

Commonwealth v. Waring, 366 Pa.Super. 144, 146-47, 530 A.2d 933, 934-935 (1987) (Olszewski, J.), quoting, Commonwealth v. Berthesi, 350 Pa.Super. 383, 387-88, 504 A.2d 891, 893-94 (1986).

Instantly, we acknowledge that the sentencing court failed to inform petitioner of his constitutional right to appeal the judgment. We agree with the learned PCHA court, however, that Gilly was afforded his right to appeal as provided in Rule 1405.

It is particularly important to review the unique circumstances of this case. In 1972, after the verdict of guilty was returned, Gilly received a sentence of death for his participation in the crimes. Later that same year, the Supreme Court of Pennsylvania in Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972), adopted the interpretation of the Supreme Court of the United States in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which declared that the death penalty as it was being applied was unconstitutional. Thereafter, Gilly’s sentence of death was vacated. He subsequently cooperated with the prosecution and testified under oath at the trials of two other participants in the murders, Prater and Boyle. In the interim between the verdict and sentencing, another participant in the murders, Aubran Wayne Martin, filed post-trial motions raising claims identical to those made by Gilly, i.e., challenges to the “key-man” jury selection process and the pre-trial order denying a change of venue. Unlike Gilly, however, defendant Martin appealed the denial of the post-trial motions; and on November 26, 1975, the Supreme Court of Pennsylvania affirmed his conviction. Importantly, in a letter dated November 5, 1974, to the prosecutor in Gilly’s case, petitioner’s counsel acknowledged awareness of Martin’s pending appeal.

Most revealing are petitioner’s statements before the sentencing court in September of 1976:

“I know it’s a little late to say it, but I’m sorry for any part I had in this. I’m truly sorry. I’m not sorry I’m here, but I’m sorry for what I did, for any part I had to do in it. If there was anyway possible even with my life, I would want the people back.”

Opinion of PCHA court 7/21/87 at 10, quoting, sentencing transcript at 6. Immediately thereafter, petitioner’s privately retained trial counsel, Gerald S. Gold, addressed the court, emphasizing that Gilly had cooperated with the prosecution. In the presence of the remorseful defendant, the trial court responded to Mr. Gold as follows:

It is, of course, remembered that [petitioner] did not take the stand and perjure himself by denying what he has now admitted he did. I assume it is not your intention to make any further motions in this matter?
Mr. Gold: Not in regard to. this matter, no, Your Honor.
The Court: You have his authority for saying that?
Mr. Gold: Yes, sir.

Id., quoting, sentencing transcript at 7-8.

After reviewing the record, we are in full agreement with the reasoning of the PCHA court:

Gilly knew that [defendant] Martin had unsuccessfully appealed his convictions. Gilly knew that the death sentences imposed on Martin had been set aside by the Supreme Court. Gilly knew that many of the other issues decided against Martin were issues identical to his own: pre-trial publicity, death qualified jury, the key-man jury, and change of venue. Gilly had been through extradition proceedings in Ohio and pre-trial hearings here. He had filed extensive post-trial motions. Then he admitted his involvement in the murders and had given testimony on the details of what he had done under oath on at least two occasions. There is no doubt that he was aware of the system and how it worked. So that when Judge Sweet asked [defense attorney] Gold if he had Gilly’s authority to say that no further motions would be filed, we can say now that the protection provided by Pa.R.Crim.P. 1405 was afforded Paul Gilly.

PCHA opinion at 12. Additionally, we note that at no time during the PCHA hearing did petitioner either protest the sentencing court’s actions or present testimony regarding that claim. Based upon record before us and for the reasons set forth above, we are satisfied that petitioner was not only aware of his right to appeal, but also that he waived his right and instructed defense counsel to that effect.

Even if we were to find that petitioner was denied his right to appeal, we would, nonetheless, affirm the judgment on direct review. In Commonwealth v. Miranda, 296 Pa.Super. 441, 442 A.2d 1133 (1982) (en banc), this Court explained that once it is determined a PCHA petitioner has been denied his appellate rights, an appeal nunc pro tunc should be granted if the claims raised in the PCHA petition were presented to the PCHA court and an evidentiary hearing held thereon. Assuming that Gilly has been denied his appellate rights as provided by Rule 1405, we may review this matter as a nunc pro tunc appeal because an adequate record is before us. See Commonwealth v. Markle, 368 Pa.Super. 142, 533 A.2d 756 (1987); Commonwealth v. Dockins, 324 Pa.Super. 305, 471 A.2d 851 (1984); Commonwealth v. McKnight, 311 Pa.Super. 460, 457 A.2d 1272 (1983).

The first issue raised by appellant is a challenge to the “key-man” jury selection process in effect in Washington County. The Supreme Court explicitly rejected an identical claim in Commonwealth v. Martin, 465 Pa. 134, 348 A.2d 391 (1975), cert. denied, Pennsylvania v. Martin, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976). On the basis of Martin, we find no merit in appellant’s first claim.

Appellant next claims the pre-trial motions court improperly denied his motion for a change of venue due to extensive publicity. Again, we disagree.

“ ‘It is clearly established that the grant or refusal of a change of venue or of a continuance is within the sound discretion of the trial court.’ ” Commonwealth v. Martin, 465 Pa. at 147, 348 A.2d at 398, quoting, Commonwealth v. Richardson, 392 Pa. 528, 540, 140 A.2d 828, 835 (1958). Three factors are of particular relevance in making this determination: “the length of time between arrest and trial; the effort of the trial court to abate publicity; and whether publicity had'caused prospective jurors to form an opinion of guilt.” Martin, 465 Pa. at 147, 348 A.2d at 398.

Instantly, a period of over two years passed between the time the crimes were committed and the commencement of trial. According to the trial court, media “coverage ha[d] been bland, moderate, sensible and restrained.” Commonwealth v. Gilly, 53 Wash.Co.Rep. 29, 30 (1972). Further, the record shows that 159 of 250 prospective jurors were extensively questioned over the course of four days; only five individuals evidenced a fixed opinion as to the guilt of Gilly, and these individuals were excused. As the trial court noted, “[ejvery juror selected was able to assure Mr. Gold, under cross, that he would give the defendant a fair trial, would accept the presumption of innocence, the rule of reasonable doubt, give weight to character testimony, had no fixed opinion and no reservations whatsoever.” Id. Under such circumstances, we are satisfied that appellant has not established that a fair and impartial jury could not be impaneled.

In his final claim, appellant contends the former special prosecutor, Richard Sprague, has reneged on his promises under the “plea bargain agreement” that appellant would serve only seven to nine years’ imprisonment, and thus, that Mr. Sprague should be compelled to uphold his part of the bargain.

The PCHA court summarized the testimony at the PCHA hearing as follows:

Gilly says he was promised by Mr. Sprague that he would receive one life sentence. (He received three concurrent life sentences.) He says that Sprague promised he would serve no more than 7 to 9 years. There is some reference that he would get the same sentence given Annette Gully and Silous Huddleston. (Neither Annette nor Silous stood trial. Both pled guilty and cooperated with the prosecution. They each served some time and were later placed in the federal witness protection program.)
According to Paul Gilly these promises were made to him in Erie County on the eve of the Prater trial. Mr. Sprague categorically denies that he made any promises to Gilly. He says that while Gilly’s testimony against Prater was helpful, that Gilly did not testify against Pass or in the second Boyle trial and that it was a witness named Turnblazer whose testimony led to the conviction of W.A. Boyle.
To support Paul Gilly’s allegations here, his brothers, William E. Gilly, Robert Gilly and Earl Gilly all appeared and testified in the post-conviction hearing. William E. Gilly says Sprague contacted him to see if he could talk with his other brothers in order to persuade Paul to cooperate. Sprague denied contacting William. His testimony was that Paul’s mother was ill and William made a request to visit Paul in prison which Sprague arranged. William, Robert and Carl Gilly met with Paul at the Western Penitentiary in Pittsburgh and later that day with [defense] Attorney Rodgers. Mr. Sprague says that he was told after that meeting with Paul and his brothers that Paul wanted to cooperate and arrangements were made for Paul and his counsel, Samuel L. Rodgers, Esq., to come to Erie.
On a Sunday evening at a Holiday Inn in Erie, Pennsylvania, we find assembled Mr. Sprague, his assistants, Mr. Wolfe and Ms. Higgins, Paul Gilly and his three brothers, Samuel L. Rodgers, Paul’s attorney, and members of the F.B.I. and the Pennsylvania State Police.
According to Paul, he agreed to testify if he “got something.” Sprague responded: “Take him back.” Paul says he then offered to implicate Boyle; Sprague said, “Good;” that a discussion ensued in which Sprague offered one life sentence and prison time of 7/9 years in a safe prison. Gilly says Sgt. Dugan of the Pennsylvania State Police was present.
The only witness to corraborate [sic] this testimony is Robert Gilly. He says Sprague offered Paul one life sentence, actual service of 7/9 years and the same “thing” Annette and Silous received. Sprague was heard by Robert to say that the court would do as he instructed it. On that basis Robert says, Paul agreed to testify.
In his testimony, Mr. Sprague said that his policy is “no deal with killers.” For example, he refused to make a deal with Claude Vealey whose confession broke the case. Sprague says that it dilutes the process to deal with killers. He says he is willing to make recommendations at the time of sentence based on the degree of cooperation.
According to Mr. Sprague when Paul arrived in Erie, his attorney attempted to negotiate a deal in exchange for his client’s testimony. Sprague says he refused but offered to make appropriate recommendations at sentence. Both Attorney Rodgers and Paul said there would be no cooperation without a deal, to which Sprague said, go back to Pittsburgh. Gilly then said that he would cooperate. He was afforded his Miranda rights; asked if he had participated in the killings [sic]. Upon his affirmative response, he was turned over to the F.B.I. with his counsel. Mr. Sprague withdrew and a complete statement was given to his interrogators. According to Sprague, part of Gilly’s statement to the F.B.I. was that he had overheard a conversation between Prater and Huddleston in which it was said that W.A. Boyle was involved. Sprague says that Gilly testified against Prater and said in that trial under oath and in the presence of his own counsel that no deal was made for his testimony. (We are told such reference can be found on page 281 of the Prater trial transcript.) Additionally, Paul Gilly in his testimony at the first trial of W.A. Boyle testified that no deal has been made for his testimony.
Finally, at the Post-Conviction Hearing, Sgt. Robert Dugan of the Pennsylvania State Police testified that he was in the motel room in Erie during the entire meeting between Sprague, Paul Gilly, and the others. He says no discussion took place regarding an agreement that Gilly would serve only 7/9 years.

PCHA opinion at 14-17 (footnote in original).

Having carefully reviewed the transcripts of the sentencing and the PCHA hearings, we conclude that appellant’s claim has no basis in law or fact. At no time before either the PCHA court or this Court has appellant cited authority for his underlying proposition that the prosecution may be forced to abide to the terms of an alleged agreement regarding a sentencing recommendation. Importantly, we note that this is not a case involving the Commonwealth’s failure to abide by the terms of a plea bargain agreement; Gilly did not enter a plea to the charges, but rather, was convicted by a jury before deciding to cooperate with the prosecution.

Further, even if petitioner’s claim was recognized, nothing in the record supports appellant’s assertion that he and Mr. Sprague entered into a “bargain” in regard to the sentence. Rather, the record reveals that appellant invoked his constitutional right to a trial by jury and, after being convicted, admitted his guilt and agreed to cooperate with the prosecution with the hope that the prosecutor would make a favorable sentencing recommendation. The record discloses that Mr. Sprague made a favorable recommendation and, accordingly, a sentence of three concurrent life sentences was imposed. Under such circumstances, appellant’s claim of error has no basis.

Order affirmed.

HOFFMAN, J., concurs in the result.

      . Appellant then sought relief in federal court by means of a petition for writ of habeas corpus. That petition was apparently dismissed for failure to exhaust state remedies.

      . At the time of Gilly’s sentencing, Rule 1405 provided in relevant part as follows:
      Rule 1405. Sentencing Proceeding
      At the time of sentencing, the judge shall:
      (b) advise the defendant of his right to appeal and the time within which he must exercise such right and, if he is indigent, of his right to proceed in forma pauperis and to be provided free counsel.
      Pa.R.Crim.P. 1405(b), adopted July 23, 1973, effective in 90 days; amended and effective June 30, 1975.
      Paragraph (b) has been retained but is now designated as paragraph (c) under the current rule. Interestingly, present Rule 1405(c) requires that the sentencing court “advise the defendant on the record ” of his appellate rights. The underscored language was not included in former Rule 1405(b).

      . Commonwealth v. Martin, 465 Pa. 134, 348 A.2d 391 (1975), cert. denied, Pennsylvania v. Martin, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976). Martin's sentence of death was also vacated on the basis of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972).

      . Although the sentencing court did not explicitly advise petitioner of his appellate rights, this is not the case where the defendant was not aware of those rights and where the record is silent as to whether the waiver of those rights was valid. Cf. Berthesi, supra.

      . We note that this issue was also raised before the trial court in appellant’s post-trial motion.

      . Cf. Commonwealth v. Wheeler, 518 Pa. 103, 112, 541 A.2d 730, 735 (1988) (“The constitutional mandate for a fair and impartial jury is satisfied if prospective jurors are capable of casting aside any impressions or opinions they may have and rendering a verdict based solely upon the evidence presented at trial”).

       Attached to the Post-Conviction Hearing Petition is a Memorandum prepared by Samuel L. Rodgers, Esquire. In it, counsel outlines the steps which led to Paul Gilly’s decision to turn state’s evidence. It is explicitly noted therein that the “deal” which Paul Gilly testified to was no more than a "tactic understanding.” It was agreed that Attorney Rodgers took the stand in some later proceeding and clearly stated that the Memorandum which he prepared was not written to memorialize a "deal" or agreement, and that in fact none existed. We agree that the Memorandum is not evidence of an agreement.

      . We note that appellant does not assert a constitutional challenge.

      . We are particularly persuaded by defense counsel’s recollection that no more than a general “tactic understanding” existed between the defense and the prosecution regarding Mr. Sprague’s sentencing recommendation. We also note that the principals were at odds regarding the existence of an alleged “plea agreement." Hence, the question of whether an agreement existed was one requiring a determination as to the credibility of the witnesses.

      . In contrast, W.A. “Tony” Boyle received three consecutive life sentences for his involvement in the crimes.