author: HOFFMAN, Judge: TAMILIA, Judge,

text:
    580 A.2d 412
    COMMONWEALTH of Pennsylvania, Appellant, v. Darryl G. OWEN.
    Superior Court of Pennsylvania.
    Submitted April 9, 1990.
    Decided Sept. 24, 1990.
    W. Jeffrey Yates, Asst. Dist. Atty., Bellefonte, for Com., appellant.

      Roy K. Lisko, State College, for appellee.
    Before TAMILIA, HOFFMAN and CERCONE, JJ.
   HOFFMAN, Judge:

This appeal by the Commonwealth is from the order below granting appellee Darryl G. Owen’s petition for a writ of habeas corpus and dismissing the driving under the influence charges filed against him. The Commonwealth contends that the court below erred in determining that the Commonwealth failed to establish a prima facie case against appellee in that it did not demonstrate that the alleged offense occurred on a “highway” or “trafficway” as required by the Motor Vehicle Code. See 75 Pa.C.S.A. § 101 et seq. For the reasons set forth below, we affirm.

On February 3, 1989, a criminal complaint was filed against appellee, charging him with driving under the influence of alcohol. See 75 Pa. C.S.A. § 3731(a)(1), (a)(4). The charges arose in connection with Owen’s operation of a vehicle in the Nittany Silver Parking Lot in University Park, Centre County, Pennsylvania, on January 27, 1989. A preliminary hearing was held before a District Justice on March 8, 1989, and Owen was bound over on the charges. Owen then filed a petition for a writ of habeas corpus, alleging that the Commonwealth had failed to establish a prima facie case because it did not make a showing that the offense occurred on a “highway” or “trafficway” as required by 75 Pa. C.S.A. § 3101. On April 17, 1989, the Centre County Court of Common Pleas held a hearing on the habeas petition. Thereafter, on May 18, 1989, the court filed an order and opinion granting the writ of habeas corpus and dismissing the charges. This appeal by the Commonwealth followed.

We have noted that, “[i]n the pre-trial setting, the focus of the habeas corpus hearing is to determine whether sufficient Commonwealth evidence exists to require a defendant to be held in government 'custody’ until he may be brought to trial.” Commonwealth v. Morman, 373 Pa.Super. 360, 367, 541 A.2d 356, 360 (1988). A pre-trial petition for a writ of habeas corpus thus is similar in purpose to a preliminary hearing. Id., 373 Pa.Superior Ct. at 365, 541 A.2d at 359. And, of course, “ ‘[t]he primary reason for the preliminary hearing is to protect an individual’s right against unlawful arrest and detention. It seeks to prevent a person from being imprisoned or required to enter bail for a crime which was never committed, or for a crime with which there is no evidence of his connection____’” Id. (citations omitted). The Morman Court also made clear that, in making this pre-trial determination, the habeas court is not limited to reviewing the evidence presented at the preliminary hearing; instead, “the Commonwealth may present additional evidence at the habeas corpus stage in its effort to establish at least prima facie that a crime has been committed and that the accused is the person who committed it.” Id., 373 Pa.Superior Ct. at 365-66, 541 A.2d at 359.

The Commonwealth contends that the court below erred in concluding that it had failed to make a prima facie showing that the offense in question occurred on a “highway” or “trafficway”. Owen was charged with driving under the influence, which is a “serious traffic offense” under the Code. See 75 Pa. C.S.A. § 3101(b). Section 3101(b) further states that the provisions of the Code relating to serious traffic offenses “shall apply upon highways and trafficways throughout this Commonwealth.” The definitional section of the Code defines a “highway” as:

The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel. The term includes a roadway open to the use of the public for vehicular travel on grounds of a college or university or public or private school or public or historical park.

Id. § 102. A “trafficway”, in turn, is defined as:

The entire width between property lines or other boundary lines of every way or place of which any part is open to the public for purposes of vehicular travel as a matter of right or custom.

Id.

The issue presented concerns the nature of the parking lot in which Owen was stopped. Specifically, the question is whether the Commonwealth demonstrated that the lot was “open to the use of the public for purposes of vehicular travel” (a highway) or was “open to the public for purposes of vehicular travel as a matter of right or custom” (a trafficway). After meticulously reviewing the record in this case, we must conclude that the Commonwealth did not make such a showing.

With regard to the sufficiency of proof required to establish a prima facie case at a preliminary hearing, this Court has noted that:

The quantity and quality of evidence presented there “should be such that if presented at trial in court, and accepted as true, the judge would be warranted in allowing the case to go to the jury.” Commonwealth ex rel. Scolio v. Hess, 149 Pa.Super. 371, 27 A.2d 705 (1942). The Commonwealth’s burden at a preliminary hearing is to establish at least prima facie that a crime has been committed and that the accused is the one who committed it. Commonwealth v. Mullen, 460 Pa. 336, 333 A.2d 755 (1975). This means that at a preliminary hearing, the Commonwealth must show the presence of every element necessary to constitute each offense charged and the defendant’s complicity in each offense. Proof beyond a reasonable doubt is not required, nor is the criterion to show that proof beyond a reasonable doubt is possible if the matter is returned for trial. However, proof, which would justify a trial judge submitting the case to the jury at the trial of the case, is required. Inferences reasonably drawn from the evidence of record which would support a verdict of guilty are to be given effect, Commonwealth v. Rodgers, 235 Pa.Super. 106, 340 A.2d 550 (1975), and the evidence must be read in the light most favorable to the Commonwealth’s case. Common wealth v. Zeringo, 214 Pa.Super. 300, 257 A.2d 692 (1969). Prosecutorial suspicion and conjecture are not evidence and are unacceptable as evidence.
Our function is to take the facts proven by the Commonwealth at the preliminary hearing and to determine whether the sum of those facts fits within the statutory definition of the types of conduct declared by the Pennsylvania legislature in the Crimes Code to be illegal conduct. If the proven facts fit the definition of the offenses with which the appellees are charged, then a prima facie case was made out as to such offense or offenses. If the facts do not fit the statutory definitions of the offenses charged against the [defendant], then the [defendant] [is] entitled to be discharged.

Commonwealth v. Snyder, 335 Pa.Super. 19, 23-24, 483 A.2d 933, 935 (1984) (emphasis supplied) (quoting Commonwealth v. Lynch, 270 Pa.Super. 554, 581-82, 411 A.2d 1224, 1238-39 (1979) (plurality opinion), aff'd in part, rev’d in part sub nom. Commonwealth v. Wojdak, 502 Pa. 359, 466 A.2d 991 (1983) (plurality opinion)); see also Commonwealth v. Wojdak, supra (to prove prima facie case, Commonwealth must show existence of each material element of charge; “the absence of evidence as to the existence of a material element is fatal.”).

The difficulty here is that the habeas court was presented with no competent evidence concerning the nature of the parking lot where appellee was stopped by police. As we have noted above, the preliminary hearing in this matter was held on March 8, 1989. The district justice’s return of transcript, filed pursuant to Pa.R.Crim.P. 146, indicates that only one witness, Pennsylvania State University police officer Jeffrey Jones, was sworn and testified at that preliminary hearing. However, Officer Jones’ testimony apparently was not transcribed, and the Commonwealth did not otherwise attempt to introduce the substance of the testimony at the habeas hearing. Moreover, the other documents attached to the return of transcript (i.e., the criminal complaint and the “arrest warrant affidavit” containing a statement of probable cause), contain no description of the parking lot or other evidence regarding whether the lot was open to the public.

Similarly, a review of the notes from the April 17, 1989 hearing on the habeas petition reveals no evidence concerning the parking lot. The hearing consisted entirely of legal argument from counsel concerning whether a parking lot could be considered a trafficway or highway. Legal argument, of course, is no substitute for proof, and this legal argument had absolutely no factual foundation. Although there was some discussion concerning whether the parking lot was open to the public, the Commonwealth introduced no witnesses or other evidence. Moreover, the parties did not stipulate to a description of the lot and its usage, nor did they ask the court to take judicial notice of the characteristics of the lot in question. In addition, the Commonwealth did not seek to move into evidence notes or other evidence from the preliminary hearing. Thus, the habeas court was not even in a position to evaluate the sufficiency of the evidence produced at the preliminary hearing. We are aware, of course, that the evidentiary requirements at a preliminary hearing, and at a habeas hearing, are somewhat relaxed. Nevertheless, as we have noted above, in order to carry its burden of demonstrating a prima facie case the Commonwealth still must offer some proof to establish each material element of the offenses charged. See Commonwealth v. Snyder, supra; see also Commonwealth v. Wojdak, supra. This the Commonwealth utterly failed to do. Accordingly, we see no basis upon which to reverse the court’s order granting the habeas petition.,

For the foregoing reasons, we affirm the order below.

Order affirmed.

TAMILIA, J., files a dissenting Opinion.

TAMILIA, Judge,

dissenting:

I respectfully but vigorously dissent to the majority Opinion affirming the trial court’s Order granting appellant’s petition for writ of habeas corpus. Contrary to the majority, I would reverse and remand the case for trial.

This is an appeal from the May 18, 1989 Order of court granting appellee’s petition for writ of habeas corpus. On January 27, 1989, at approximately 5:53 p.m., a Pennsylvania State University police officer observed appellee as he attempted to enter his car which was parked in the Nittany Silver parking lot, a small parking lot located on the university campus next to a dormitory. Appellee was swaying back and forth as he stood by his car while trying to locate his keys. He retrieved them from his coat pocket and spent approximately three minutes just getting the driver’s door open. Once appellee was in the car, he turned the headlights on and off twice, raced the engine, backed up the car and then “squealed” the tires pulling out. The police officer effectuated a traffic stop, observed appellee’s disheveled appearance and combativeness and asked him to perform certain field sobriety tests. Upon appellee’s failure to pass any of the three tests, the police officer arrested appellee and transported him to a local hospital, where a blood samplé indicated appellee’s blood alcohol level was .173 per cent. Based on his observations, the test results and the blood sample results, the police officer, on February 3, 1989, swore out an arrest warrant for appellee for driving under the influence.

At a preliminary hearing on March 8, 1989, the district justice bound appellee over on the charges. Appellee petitioned the court for a writ of habeas corpus challenging the district justice’s holding him for court. As grounds for his petition, appellee asserted the Commonwealth failed to establish a prima facie case against him because the offense did not take place on a “highway” or “trafficway” as required under the Motor Vehicle Code. The court granted appellee’s petition by Order dated May 18, 1989. The Commonwealth brings this appeal, having certified in good faith that the court’s Order terminates and substantially handicaps the Commonwealth’s prosecution of appellee. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985); Commonwealth v. Deans, 388 Pa.Super. 521, 565 A.2d 1230 (1989).

The Commonwealth contends the court erred in granting appellee’s petition because the parking lot is a highway or trafficway within the meaning of the statute. The Motor Vehicle Code provides:

§ 3101. Application of part
(a) General rule. — Except as provided in subsection (b), the provisions of this part relating to the operation of vehicles refer exclusively to the operation of vehicles upon highways except where a different place is specifically referred to in a particular provision.
(b) Serious traffic offenses. — The provision of Subchapter B of Chapter 37 (relating to serious traffic offenses) shall apply upon highways and trafficways throughout this Commonwealth.

75 Pa.C.S. § 3101. Highways and trafficways are defined as:

§ 102. Definitions
“Highway” The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel. The term includes a roadway open to the use of the public for vehicular travel on grounds of a college or university or public or private school or public or historical park.
“Trafficway” The entire width between property lines or other boundary lines of every way or place of which any part is open to the public for purposes of vehicular travel as a matter of right or custom.

75 Pa.C.S. § 102. I conclude, without question, the evidence establishes the incident occurred in a place open to the public for purposes of vehicular travel as a matter of right or custom. The majority would require that extensive evidence be introduced to establish the nature of the parking lot and the degree of public access to bring it within the meaning of the statute. I believe the statute is broad enough to comprehend any parking lot, and establishes that a parking lot used by motor vehicles and any persons, even if limited to students or university personnel, creates the necessary element for the purpose of establishing a prima facie case.

The record shows the Nittany Silver parking lot is a restricted student parking lot provided for the use of dormitory residents. However, the parking lot is restricted only from 5 a.m. to 5 p.m. Otherwise, the lot is open to public use. Moreover, even if restricted by signs, a parking lot is a trafficway for purposes of section 3101 if it is used by members of the public. Commonwealth v. Wilson, 381 Pa.Super. 253, 553 A.2d 452 (1989). In Wilson, the appellant was arrested and charged with driving under the influence after operating a car in a parking lot marked with private signs. The Wilson Court stated:

It would raise form to towering levels above substance if parking lots, in which vehicular traffic is encouraged and occurs, sometimes at high rates of speed, were to become “DWI-free zones,” in which drunk driving is tolerated from entrance to exit. Such a construction would seriously undermine the effectiveness of any drunk driving prohibitions.

Id., 381 Pa.Superior Ct. at 257, 553 A.2d at 454.

The definition of “trafficway” in § 102 clearly allows for inclusion of public parking lots because such lots are clearly the “width between property lines or other boundary lines of every way or place of which any part is open to the public for purposes of vehicular travel as a matter of right or custom.”

Appellee would limit this lot only to the permissible residents of an adjoining dormitory. No evidence is adduced that only such residents could use the lot. Private property signs or restricting use to customers cannot limit the application of section 102, see Wilson, supra, and neither can stickers or restricted parking designations, on what is essentially a public area, achieve that result.

As pointed out above, the parking lot was unrestricted at the time of the arrest. Appellee does not contest this fact. I would find the parking lot had changed from a limited public use to a general use parking lot. (I would not hold, however, that had appellant been arrested during the restricted time period, our result in this case would have been any different.) Stickers or parking zones cannot be the basis upon which to restrict a trafficway or roadway from application of the DUI statutes. If this were so, a major portion of city streets in Pittsburgh and Philadelphia in congested residential areas and surrounding universities, colleges and hospitals would be off-limits to arrest for DUI when a person was in one of those areas. The parking areas of some of our large housing developments, public and private, likewise would be insulated. Such a holding now requires of the police awaiting the crossing of a multitude of imaginary lines by drunken drivers to effect stops or arrests if they were to be upheld by the court.

As it was held in Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983), an important purpose of the laws on drunk driving is to deter drunk driving and to retard the wanton and senseless slaughter of and injury to innocent people upon our highways caused by drunk drivers. Id., 504 Pa. at 248, 470 A.2d at 1341. It is unthinkable that the legislature would have conceived legislation imposing such restrictions and limitations on the reasonable implementation of their legislative intent. The respected jurist, the Honorable Carson Brown, in discussing the implications of his decision, expressed serious, if not grave, misgivings over the possibility that a person could be struck and killed in a parking lot by a drunk driver and yet escape liability for his actions (H.T., 4/17/89, p. 7). To eliminate the uncertainty and resolve ambiguity, it is necessary to place a different interpretation on the use of the parking lot than did the trial judge. Judge Brown, in making his findings, relying on a previous decision he had rendered (Commonwealth v. Roesch, 18 Pa. D. & C.3d 59 (C.P. Centre County 1981)), found the lot was not customarily used by the public. This interpretation at least outwardly distinguishes the present case from Wilson. I disagree with that interpretation.

I would hold that the residents of the dormitory are part of the public as well as visitors, repairman, pizza delivery persons or any of the myriad of other persons who have access to that lot. It is inconceivable that with the incredible number of automobiles in use in our society today and the increasing dedication of extensive areas for parking purposes with accompanying schemes of limitation and restrictions as to use, that the law would permit such areas to be insulated from the consequences of drunk driving. We are no less subject to all of the harms to be prevented by application of the DUI laws in parking lots than on busy highways or city streets. My distinguished colleagues, in refusing to acknowledge that a parking lot per se cannot be distinguished from a city street, have created a free zone for drunk drivers. They would emasculate the law by ignoring the facts.

A case could be made that a driver or pedestrian should be even more cautious and sober in large parking lots than on city streets because of the high concentration of cars and people and the inevitable crisscrossing between the two. In Commonwealth Dept. of Transportation v. Bendik, 112 Pa.Commw. 591, 535 A.2d 1249 (1988), the Commonwealth Court ruled that a parking lot was a trafficway because it was open to the public and vehicular traffic did occur on it. I believe this holding and that of Wilson, supra, supports my position that despite restrictions which may be imposed as to the class of persons permitted to park in a particular area, customary use by the public means those persons in the restricted class as well as any other persons reasonably expected to have vehicular access to the property. Neither the size of the lot, its administrative restrictions, its attachment to a residential unit, business or institution for the use of the persons using that facility nor the class of persons privileged to use the lot insulate intoxicated persons from the DUI laws pursuant to 75 Pa.C.S. § 3731. There is no need, therefore, to establish in a preliminary hearing the nature of the traffic or business conducted on a parking lot.

I would, therefore, reverse the trial court’s Order granting appellee’s petition for writ of habeas corpus and dismissing the charges against him. This case should be remanded for trial.

      . It is settled that the Commonwealth may appeal from an order discharging a defendant on a writ of habeas corpus. See Commonwealth v. Hess, 489 Pa. 580, 414 A.2d 1043 (1980); Commonwealth ex rel. Bryant v. Hendrick, 444 Pa. 83, 280 A.2d 110 (1971); Commonwealth v. Oeler, 357 Pa.Super. 281, 515 A.2d 977 (1986).

      . The transcript from the April 17 hearing is not part of the certified record on appeal. Because the official record does not contain the notes from either the preliminary hearing or the habeas hearing, we could affirm the order below simply based on the Commonwealth’s failure to provide an adequate record for us to review. See Commonwealth v. Williams, 357 Pa.Super. 462, 516 A.2d 352 (1986). We note, however, that the Commonwealth has appended an unofficial copy of the notes from the habeas hearing to its brief, and Owen does not dispute the accuracy of the unofficial transcript. Because an examination of the unofficial notes makes clear that the Commonwealth utterly failed to prove the existence of a prima facie case and because there is no dispute concerning the accuracy of this unofficial transcript, we are satisfied that reliance on it to evaluate the sufficiency of the Commonwealth’s proof at the habeas hearing is not inappropriate. Cf. Commonwealth v. Garbett, 256 Pa.Super. 488, 498 n. 8, 390 A.2d 208, 212 n. 8 (1978) (plurality opinion).

      . The inadequacy of the record created by the Commonwealth calls into question the accuracy of certain of its factual statements. For example, the Commonwealth asserts in its appellate brief that the lot in question "is a reserved parking lot from 5 a.m. to 5 p.m." See Brief for Appellant at 10. The suggestion, of course, is that the lot otherwise was open to the public. If this assertion was supported by record evidence, we undoubtedly would have to reverse. However, as noted in the text, there is no evidence regarding when, and to whom, the lot was open.

      . The court below did not grant the petition based on the Commonwealth’s failure to produce evidence, but instead found that the parking lot was a restricted student parking lot that was not customarily open to the public. It is settled, however, that a reviewing court may affirm a decision of the trial court if the result is correct on any ground. See, e.g., Commonwealth v. Terry, 513 Pa. 381, 521 A.2d 398 (1987), cert. denied sub nom. Terry v. Pennsylvania, 482 U.S. 920, 107 S.Ct. 3198, 96 L.Ed.2d 685 (1987).

      . We should emphasize the limited nature of our holding. We are aware that prior decisions in this Commonwealth have held that a parking lot may be considered a trafficway for purposes of the Motor Vehicle Code. In all of these cases, however, there was a finding that the lot in question was open to the public. See, e.g., Commonwealth v. Wilson, 381 Pa.Super. 253, 553 A.2d 452 (1989), allocatur denied (June 30, 1989); Commonwealth v. Baughman, 357 Pa.Super. 535, 516 A.2d 390 (1986); see also Commonwealth, Dept. of Transp. v. Bendik, 112 Pa.Commw. 591, 535 A.2d 1249 (1988). In the case at bar, by contrast, there simply is no record evidence to support such a finding.

      . 75 Pa.C.S. § 3731(a)(l)-(4).

      . The majority affirms the trial court as no evidence was adduced in the magistrate's hearing on the record to establish the parking lot was open to the public for purposes of vehicular traffic as a matter of right or custom. Neither the appellant nor appellee have contested the factual allegations of this case but are relying on the legal intent of the statute. As such, a campus parking lot, no less than a motel parking lot, Commonwealth Dept. of Transportation v. Bendik, 112 Pa.Commw. 591, 535 A.2d 1249 (1988), or a club parking lot, Commonwealth v. Wilson, 381 Pa.Super. 253, 553 A.2d 452 (1989), has generally accepted attributes.
      The need for a record to be made to establish specifically and in detail the attributes of this parking lot is, therefore, no more necessary than the need to take detailed evidence as to the attributes of any street or highway where a violation occurred. Stating what it is is sufficient, unless a party raises specific questions which place the matter in issue.


source: Caselaw Access Project

author: FORD ELLIOTT, Judge:

license: Public Domain

text:
    580 A.2d 418
    In the Interest of C.S. Appeal of R.S. T.S., Clinton County Children & Youth Services.
    Superior Court of Pennsylvania.
    Argued May 22, 1990.
    Decided Sept. 24, 1990.

      Stephen C. Smith, Pittsburgh, for appellant.
    Frederick D. Lingle, Lock Haven, for C.S., participating party.
    Craig P. Miller, Lock Haven, for T.S., participating party.
    Before OLSZEWSKI, MONTEMURO and FORD ELLIOTT, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from a disposition order maintaining legal and physical custody of a minor child, C.S., with the Clinton County Children and Youth Social Services Agency. The order directs the agency to continue foster care placement for said minor. The natural father of C.S., R.S., has appealed. The natural mother, T.S., has filed a brief in support of the trial court’s order, and the child advocate has joined in this brief. The agency has not filed a brief in this matter. Upon our review of the record, the briefs, and the applicable law, we hold that the trial court did not abuse its discretion regarding its disposition of C.S. and therefore, affirm.

On November 17, 1988, the Clinton County Children and Youth Social Services Agency became involved with the father, R.S., and mother, T.S., concerning a home investigation as a result of a custody proceeding over C.S., born January 13, 1988. During its investigation, the agency discovered that there was little food in the house and that C.S. had a severe diaper rash. In order to remedy the situation, the agency caseworker took T.S. to the Department of Public Assistance to secure financial benefits. Also, the agency maintained contact on a weekly basis with T.S. during November and December of 1988. However, on December 21, 1988, T.S. contacted the agency requesting that C.S. be placed in foster care on a voluntary basis. T.S. informed the agency that because she and R.S. were fighting continually, she feared for C.S.’s safety as well as needing some time away from the child. Soon thereafter, T.S. was admitted to Divine Providence Inpatient Mental Health Unit for treatment.

On January 11, 1989, the agency filed a petition alleging that C.S. was a dependent child under 42 Pa.C.S. § 6302 of the Juvenile Act, and requested a hearing to adjudicate her dependency. Following two hearings, January 23, 1989, and March 2,1989, the taking of testimony, and the presentation of psychological reports, the parties agreed on March 2, 1989, to adjudicate C.S. as a dependent child. At that time, the court ordered that legal and physical custody of C.S. be transferred to the agency pending a disposition hearing. On May 12, 1989, the Clinton County Children and Youth Social Services Agency requested a dispositional review hearing of the C.S. matter in accordance with 55 Pa.Code § 3130.72. On June 6, 1989, the court conducted a hearing pursuant to the agency’s petition. Following testimony given by the agency’s caseworker, the paternal grandmother, and the natural father, R.S., the court continued the hearing until August 23, 1989, without an objection by any party, in order for the agency to evaluate the matter further. However, given that this was the first hearing since C.S. had been adjudicated dependent, the court determined that this was a disposition hearing and not a dispositional review hearing as petitioned by the agency. All parties agreed to this determination. Following the hearing on August 23, 1989, and the testimony of R.S., the paternal grandmother, M.S., the natural father’s sister in-law, C.S., and two agency caseworkers, the court ordered the child, C.S., to remain in the legal and physical custody of Clinton County Children and Youth Social Services Agency for continued foster care placement other than in the home of M.S., the paternal grandmother. Appellant, the natural father, appealed this ruling on October 10, 1989.

Appellant asserts that the trial court erred in not allowing C.S. to be returned home to him and her paternal grandparents since the petitioner, Clinton County Children and Youth Social Services Agency, had recommended such a placement. Although appellant complains of C.S.’s placement, he initially argues that C.S. should not have been declared a dependent child. It is well-settled that:

The standard of review which this Court employs in cases of dependency is broad. In Re Custody of Neal, 260 Pa.Super. 151, 393 A.2d 1057 (1978). However, the scope of our review is limited in a fundamental manner by our inability to nullify the fact-finding of the lower court. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977). We accord great weight to this function of the hearing judge because he is in the position to observe and rule upon the credibility of the witnesses and the parties who appear before him. In Re Interest of Black, 273 Pa.Super. 536, 417 A.2d 1178 (1980); In Re Kunkle, 265 Pa.Super. 605, 402 A.2d 1037 (1979). Relying upon his unique posture, we will not overrule his findings if they are supported by competent evidence. Commonwealth ex rel. Morales v. Morales, 222 Pa.Super. 373, 294 A.2d 782 (1972).

In Re Frank W.D., 315 Pa.Super. 510, 517, 462 A.2d 708, 711 (1983).

Our legislature has defined a dependent child as:

a child 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. § 6302(1). Our review of the record reveals that C.S.’s mother, T.S., was suffering from mental health problems and needed to be hospitalized for some time, and later sought treatment at a group home where she was residing. Appellant, R.S., the natural father, suffers from alcohol and substance abuse problems, was serving time for alcohol and drug related offenses, and could not be C.S.’s caretaker until he had finished his sentence. More importantly, the parties, including appellant, agreed on March 2,1989, following the taking of testimony, to adjudicate C.S. as a dependent child. As the evidence presented in the record clearly and convincingly demonstrates that C.S. was without proper parental care and control, and that parental care was not available immediately, the trial court did not err in adjudicating C.S. dependent. In the Interest of Y.P., 353 Pa.Super. 185, 509 A.2d 397 (1986).

However, once C.S. was declared to be a dependent child, her removal from the care of her parents must meet a much stricter standard. In order for C.S. to be removed from her parents, a clear necessity must be shown in that any alternatives to separation were unfeasible. In the Interest of Feidler, 392 Pa.Super. 524, 573 A.2d 587 (1990); In the Interest of Y.P., supra. The record reveals that T.S., the mother, conceded that she was not in a position to have C.S. returned to her as she was living in a group home and receiving treatment in a therapy program. The petitioner, Clinton County Children and Youth Social Services Agency, recommended that C.S. be placed in the home of her paternal grandparents, M.S. and K.S. Initially, as appellant, R.S., would be living with his parents once he had completed his sentence, he and his mother, M.S., would be C.S.’s primary caretakers. When neither of them would be available to care for C.S., then a paternal aunt would care for C.S.

Following the presentment of testimony on June 6, 1989, the agency requested a continuance to investigate another possible caretaker’s home, another paternal aunt who would replace the first paternal aunt, and to clarify some of appellant’s testimony. On August 23, 1989, the testimony continued and the agency informed the court that the second paternal aunt, C.S., would be the child’s caretaker if M.S. was not available. Appellant’s role as C.S.’s caretaker seemed to have been abandoned by the agency, but it is not clarified in the record. As no one has challenged appellant’s standing to appeal this matter, and he is C.S.’s natural father, we will not consider it a detriment to our review. See Pa.R.A.P. 501; In Re Adoption of B.E.W.G., 355 Pa.Super. 554, 513 A.2d 1061 (1986).

Our review of the record reveals that the trial court found the paternal grandmother, M.S., and the paternal aunt, C.S., to be fit caretakers for the child, C.S., but was not so convinced about the abilities of appellant, R.S., and the paternal grandfather, K.S. Specifically as to R.S., the trial court found progress in appellant’s attempt to address his alcohol and drug abuse problems, but that it needed to see him “establish a drug and alcohol free track record” before he would be permitted to care for C.S. Trial court opinion, 9/15/89 at 7. Also, the trial court considered appellant’s previous behavior of taking C.S. to a gathering “where drinking and fighting eventually occurred” as not being conducive to C.S.’s best interests. Id. As for K.S., the paternal grandfather, the court was troubled about his previous conviction and time served for statutory rape. Although this occurred thirty years ago, the psychological evaluation conducted by the agency of K.S. did not “address inquiries and assessments toward that circumstance to determine if [K.S.] would represent any type of present danger to [C.S.] if she were in the home.” Trial court opinion, 9/15/89 at 6. However, the psychological evaluation of K.S. did disclose:

[a] man whose denial and repression tend to interfere with the development of insight and conflict resolution. He also concluded there was evidence of various less severe psychological problems and that [K.S.] appeared to be both chronically anxious and depressed. He was observed as being fairly rigid, staid, and a person who tended to avoid activity and excitement beyond the limitations of his physical disability.

Id. at 5-6.

Although the paternal grandmother, M.S., and the paternal aunt, C.S., would care for the child, and she would not be at home alone with K.S., the court was cognizant of the tension that could develop over this prohibition. The trial court insightfully evaluated M.S.’s role in the suggested placement as being “as much of a watchdog with respect to her son and husband as it does a caretaker with respect to [C.S.].” Id. at 8. Accordingly, the learned trial judge appropriately found:

[t]he Court is somewhat uncertain as to the correct approach at this time, but after considering all of the circumstances it would prefer to err in favor of the safety of [C.S.] as opposed, to some slight setback timewise in achieving the goal of family reunification. At this point the Court has little indication when or if this goal might be achieved. Accordingly, the disposition will require Petitioner to keep [C.S.] in foster care where she now is.

Id. The trial court left the door open for future placement with M.S. if its concerns about R.S. and K.S. were addressed adequately. Based upon the foregoing, we hold that the trial court did not err in not implementing the petitioner’s recommended placement for C.S. Accordingly, we affirm.

Order affirmed.

      . A disposition hearing is held following the finding of dependency in order to determine an appropriate placement for the dependent child which is best suited for the protection of the child’s physical, mental, and moral welfare. 42 Pa.C.S. § 6351. A dispositional review hearing is designed to ensure that the child’s removal from the home continues to be warranted and is in the child’s best interests. Id.

      . Although no one informed the psychological evaluator of K.S.’s previous conviction, the agency knew that K.S. had a criminal record, but neglected to pursue the specifics of it. Notes of Testimony, 6/6/89 at 9-12. This method of evaluating child caretakers is in contravention to the requisite information needed to comply with 11 P.S. § 2223.1., Information relating to prospective child care personnel.


author: DEL SOLE, Judge. TAMILIA, Judge,

text:
    580 A.2d 757
    Leona VALENTINE, Appellant, v. Anthony WROTEN, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1990.
    Filed July 17, 1990.
    Reargument Denied Oct. 1, 1990.

      Margaret Klaw, Philadelphia, for appellant.
    Before DEL SOLE, MONTEMURO and TAMILIA, JJ.
   DEL SOLE, Judge.

The appellant seeks review of the trial court’s refusal to entertain a request for temporary custody of minor children at the time appellant sought a protection from abuse order. The trial court refused appellant’s request on February 8, 1989 and appellant filed a petition for reconsideration of that order. The trial court denied reconsideration on April 7, 1989 and appellant filed a notice of appeal following that denial. We find that this appeal has been untimely filed and, therefore, this court does not have jurisdiction. Thus, we quash this appeal.

In this case, following the February 8th order and within thirty days, a notice of appeal and a petition for reconsideration were filed. The trial judge did not within that thirty-day period grant reconsideration. Rather, the trial judge issued a rule to show cause why reconsideration should not be granted. Unfortunately, when this rule was issued counsel withdrew the pending appeal. The actions of the trial court in this case were not sufficient to invoke the application of Pa.R.A.P. 1701 and, further, as this court has held en banc:

The granting of a rule to show cause is not a grant of reconsideration and, therefore, did not operate to prevent the thirty-day appeal period from expiring. Hook v. Athens Area School District, 50 Pa.Cmwlth.Ct. 420, 413 A.2d 1151, 1153 (1980).

Luckenbaugh v. Shearer, 362 Pa.Super. 9, 523 A.2d 399 (1987) . Allocatur denied. 518 Pa. 626, 541 A.2d 1138 (1988) .

The fact that the trial court established a briefing schedule, hearing date and issuing a rule to show cause did not amount to an agreement to reconsider. Rule 1701 is very clear. Even though an appeal has been filed, a trial court may, within thirty days of the final appealable order expressly grant reconsideration. If the trial court expressly grants reconsideration, it has extended the time for decision. As we said in Luckenbaugh:

A judgment entered in a contested proceeding which ends the litigation must either be appealed within thirty days or the trial court must expressly grant reconsideration within thirty days from the entry of the judgment [order]. Pa.R.A.P. 1701, 42 Pa.C.S.A. See: Luckenbaugh, id., at 523 A.2d 401.

To find that the court does not have jurisdiction is not a harsh technical application of rules, particularly in this case. Here, the appellant has the relief which she sought. Namely, she has custody of her children. She, through amicus, is seeking review of the trial court’s order as it would affect future temporary custody matters arising in Protection From Abuse Act cases.

Our court has repeatedly held that appeals filed from orders denying reconsideration are improper and untimely. Fortune/Forsythe v. Fortune, 352 Pa.Super. 547, 508 A.2d 1205 (1986). The appeal in this case should have been filed within thirty days from the February 7, 1989 order or, reconsideration should have expressly been granted within thirty days of that order. Since the untimely filing of the appeal goes to the jurisdiction of this court, we have no choice but to quash the appeal. State Farm Mutual Automobile Insurance Co. v. Schultz, 281 Pa.Super. 212, 421 A.2d 1224 (1980).

Appeal quashed.

TAMILIA, J., files a dissenting opinion.

TAMILIA, Judge,

dissenting:

I vigorously dissent to the holding by the majority to quash this appeal as being untimely as it elevates form over substance and trivia over essence. The majority acknowledges the correctness of the dissent as it deals with the issues on the merits, and aside from verbalizing the routine standard for quashing an appeal, fails to respond to the pressing necessity, in justice, to resolve the issues presented by this case, when the technical error was one that was excusable on any basis, either in law or common sense.

This is an appeal from the April 7, 1989 Order of court denying appellant’s motion for reconsideration of the court’s earlier Order denying appellant temporary custody of her minor children. The facts are as follows. On February 8, 1989, the trial court entered a temporary ex parte protection Order under section 10185 of the Protection From Abuse Act, 35 P.S. § 10181 et seq. (Act), which enjoined appellee from physically striking, harassing, threatening or using foul language toward appellant and her children and evicted him from appellant’s residence. The Order denied appellant’s request for temporary custody of her children. At the subsequent hearing on February 24, 1989, the trial court denied appellant’s request to amend the temporary Order to include temporary custody of her children and suggested appellant’s proper recourse was to petition for an emergency custody Order. That afternoon, appellant received an emergency custody Order. On March 8, 1989, appellant filed a petition for reconsideration of the denial of the temporary ex parte custody Order, which the trial court denied on April 7, 1989. Appellant filed a petition to amend the Order to include the language prescribed by 42 Pa.C.S. § 702(b) so as to enable her to appeal the April 7, 1989 Order. On May 1, 1989, appellant and appellee entered into an Order by consent extending the terms of the temporary protection Order through April 30, 1990 and confirming temporary custody in appellant. On May 4, 1989, the trial court denied appellant’s petition to amend because it found the issue moot in view of the Order by consent. Appellant now appeals the trial court’s April 7, 1989 Order.

Appellant contends the trial court erred in denying her petition for reconsideration. At the time appellant filed her petition for reconsideration, the issue of temporary custody was already moot because the Motions Court had already granted an emergency petition for custody on February 24, 1989 thereby resolving the issue. Further, the issue of temporary custody continues to be moot even now because the parties resolved, through an agreement, both the abuse and protection issue and the temporary custody issue {See May 1, 1989 Order by Consent, Tucker, J.). However, this does not resolve the issue for purposes of this appeal. There is a general rule that Superior Court does not consider questions which have been rendered moot by our decisions nor do we consider questions which may not arise upon remand “unless exceptional circumstances exist or questions of great public importance are involved.” Ellis v. Chicago Bridge and Iron Co., 376 Pa.Super. 220, 236, n. 16, 545 A.2d 906, 914-15, n. 16 (1988), quoting Simmons v. St. Clair Memorial Hospital, 332 Pa.Super. 444, 481 A.2d 870 (1984).

The general rule is that an actual case or controversy must exist at all stages of appellate review. There are, however, exceptions to this mootness doctrine. One such exception is when the question presented is one of great public importance. Another exception is when the question is capable of repetition yet escaping judicial review. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Commonwealth v. Smith, 336 Pa.Super. 636, 486 A.2d 445 (1984); Janet D. v. Carros, 240 Pa.Super. 291, 362 A.2d 1060 (1976). Because this issue is one of great public importance and, as is apparent here, it is capable of frequent repetition yet escaping judicial review, I believe, in light of the above holdings, it is imperative that we review the issue presented on its merits.

Upon reviewing the merits of appellant’s petition for reconsideration, I believe there is reason under the facts of this case and the revision in the Act since the time this Court construed it in Rosenberg v. Rosenberg, 350 Pa.Super. 268, 504 A.2d 350 (1986), to make a temporary award of custody. The Act was enacted to provide immediate protection from physical abuse and was intended to provide ancillary relief regarding minor children in abuse actions.

The Act, as interpreted correctly by Rosenberg, held that section 10186(a)(4) was intended to provide temporary custody and to establish temporary visitation rights with regard to minor children. In that case, this Court specifically disapproved of a procedure whereby subsequent orders were entered awarding permanent custody and visitation of the children. The most recent revisions of section 10186, Relief, subsection (a)(4), have amplified and clarified the extent to which the court in a protection from abuse case can award temporary custody and visitation. This section now provides:

A defendant shall not be granted custody or partial custody where it is alleged in the petition, and the court finds after a hearing ... [he has] abused the ... children ... [custody may not be awarded when he] has been convicted of violating 18 Pa.C.S. § 2904 (relating to interference with custody of children) within two ... years prior to the filing of petition for protection order____ If a [defendant] ... has partial, shared or full custody of the minor children ... by order of court or written agreement of the parties, the custody shall not be disturbed or changed unless the court finds that the defendant is likely to inflict abuse upon the children or to remove the children from the jurisdiction of the court prior to the hearing under section 5(a). Nothing in this paragraph shall bar either party from filing a petition for custody under 23 P.S. Ch. 53 (relating to custody) or under the Pennsylvania Rules of Civil Procedure.

Id. (footnote omitted).

The clear intent of this section is to maintain the status quo as to the custody of children unless it is alleged and proven that they are in danger of physical or sexual abuse or may be removed from the jurisdiction prior to a hearing pursuant to a petition alleging abuse. It clearly appears the intent of the statute is to assure that prior orders or agreements as to visitation and custody are honored, except in those instances when a child has been or is in danger of being abused. As with support, pursuant to section 10186(a)(5), which limits temporary support only until a petition for support can be filed (which must be within two weeks of the date of the protective order or the temporary support order becomes void), a temporary custody order can only be entered upon cause shown and may not be extended beyond the time required to obtain a custody order under the custody acts. The trial judge appears to have construed sections 10182, Definitions, and 10186, Relief, subsection (a)(4), aimed at preventing award of temporary custody to a defendant who has been found to have abused the child, to mean that a plaintiff may not be awarded custody unless it is alleged and established that the defendant has been found to have abused the child. This is not correct.

I now turn to consideration of when the trial judge should give serious consideration to a temporary custody petition. Two allegations in the petition could have given rise to a reasonable interpretation that the children were in danger and the court was empowered to enter a temporary custody order, notwithstanding the availability of emergency custody relief pursuant to Pa.R.C.P. 1915.13 Special Relief The trial court, in denying such relief pursuant to the Act, found it was available under Rule 1915.13, acknowledged there was good cause to grant the relief but preferred that it be done pursuant to the custody rules rather than the Act. The trial court stated she did not wish to “put this court in the middle of a custody fight.” To hold otherwise might be considered as imposing form over substance as relief would occur expeditiously in either event. However, if a basis for relief is established in the Act, notwithstanding availability of another proceeding, such relief should be forthcoming under the law. The rationale of the trial court that the relief is equivalent does not stand up under careful scrutiny. Without denigrating in any way the effectiveness of the special relief provision of the custody rules, its implementation does not carry with it the rapidity, forcefulness and protection that a temporary order will carry under the Act. The amicus brief points clearly to the extraordinary relief which a protection from abuse order can bring which on balance is not available under an emergency custody order.

Protection from abuse orders can bring into play police protection, while emergency custody orders do not; violation of a protection from abuse order brings into operation criminal contempt actions while emergency custody orders are enforced primarily through civil contempt and a protection from abuse temporary custody order may be issued pro se while emergency custody orders can not. The unusual nature of the indirect criminal contempt penalty for violation of a protective order (section 10190) which provides for imprisonment up to six months or a fine not to exceed $1,000, or both, and arrest upon probable cause, without warrant, whether or not the violation is committed in the presence of the police officer, make it clearly superior to an emergency custody action to protect the wife and children when it is established danger exists. In addition, pursuant to section 10187, a copy of the order may be issued to the police department in the appropriate jurisdiction to enforce the order or agreement, which shall then place it in a county registry of protection orders. The order may also be registered in other counties pursuant to section 10183.1. Availability of counselled assistance is greater in protection from abuse actions as a matter of public policy and pro bono legal assistance, than in custody actions. Thus it is evident denial of consideration of a petition for temporary custody in a protection from abuse proceeding, because special relief is available in a custody proceeding, is improper as it ignores the special benefits the legislature intended to confer on the victims of domestic violence, not generally available even in emergency custody cases.

Next, I believe we must consider whether there is required to be a showing of physical violence or sexual abuse to the children before an order of temporary custody may issue. While the trial court limited its consideration of allegations and testimony that went solely to the abuse of the children, as defined in subsection 10182(iv), Definitions, it appears she ignored the total implications of the section. Under section 10182, “abuse” means the occurrence of one or more of the following acts between family or household members, sexual or intimate partners or persons who share biological parenthood. The section then goes on to list four classes of behavior which, if proven, establish abuse. Once abuse is established under any of the distinct categories, then all of the relief available under the Act may be called into play by the trial judge. In disregarding the totality of section 10182, I believe the trial judge failed to properly apply section 10186(a)(4), relating to awarding temporary custody of children, to the facts of this case. As explained above, this section was considerably expanded in 1988 over the original wording of the section. It expanded the considerations as to when a defendant should not be awarded temporary custody and further provided that custody orders or agreements should not be disturbed or changed as to either party unless the court finds that the defendant is likely to inflict abuse upon the children or to remove the children from the jurisdiction of the court prior to the hearing. The legislative intent appeared to be two-fold in providing this amendment. First, to assure that adjudicated custody cases or final agreements would not be disturbed by a spurious allegation of abuse and secondly, when there was an actual finding of abuse of children or potential abuse or threat of removal of children from the jurisdiction, prior orders or agreements relating to the children would not deny them the protection of the Act. However, the first sentence of section 10186(a), subsection (4), Awarding temporary custody of and/or establishing temporary visitation rights with regard to minor children, remains unqualified when “abuse” has been found. In this instance, since no previous orders or agreements were involved, abuse of the mother alone entitled her to consideration of her temporary custody request.

There are undoubtedly numerous situations when the character of harm or threat directed to the mother of the children, comprehend a serious potential for harm to the children even though they have not been physically or sexually harmed themselves. Likewise, one child may have been sexually abused or harmed, while siblings were not. Any test as to children which requires that the specific child be harmed before a temporary order of custody or visitation can be imposed must fail as it falls short of providing the protection which the Act was designed to effect. Unquestionably, if one child was physically or sexually abused, a trial court would be more than justified in awarding temporary custody of the other children to the other parent. Similarly, if the wife and mother of the children was abused to the extent that the total environment of the children subjects them to danger, it does not appear possible to isolate the children’s safety from that of the mother. This may not be an easy decision to make, but the entire tenor of the Act is to err on the side of safety and to intervene to enjoin physical and sexual abuse and advance prevention of physical and sexual abuse. Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363 (1984). In light of the amplification of this section in 1988, it appears reasonable the legislature intended that the status quo as to custody be maintained whether it be from pre-existing custody orders or agreements, or by virtue of who was the primary caretaker of the children, aside from establishing any physical or sexual abuse directly imposed on the children. Once it had been established that the mother had been abused, giving rise to a right to petition under the Act, and incident to that abuse, or as a component of the domestic violence activity giving rise to the petition, notwithstanding a failure to allege child abuse, the mother as primary caretaker could petition for temporary custody and the trial court is empowered to enter an order of temporary custody.

In this case, the children were removed when the father entered the residence and bound and gagged the mother. He also had threatened to remove the children from the jurisdiction. Under these circumstances, the treatment of the mother clearly signaléd danger to the children which could only be aborted by immediate intervention of the court and a return of the children to their mother. As discussed above, the court recognized this danger. Even the relief offered by an emergency custody proceeding could not provide the immediacy and legal resources necessary to effective protection of the children. As to the children, the ambient circumstances were such that specific allegations of abuse as to them need not have been established to require their protection by awarding temporary custody to the mother.

In conclusion, I would hold that the trial court need not find specific acts of abuse toward a child to award temporary custody to the mother in the absence of an existing custody order if the allegations of abuse toward her or other children are well grounded and the behavior of the father/husband is such as to call into play the need for protecting the child from the likelihood of harm or removal from the jurisdiction. As stated above, an important consideration is which of the parents has been the primary caretaker or custodian by virtue of a prior custody order.

The majority quashes this appeal as being untimely as the appeal should have been taken from the Order dated February 8, 1989, denying the request for temporary custody. I agree with the majority that technically the February 8th Order could be considered an appealable Order. The appellant in this case also considered it an appealable Order as she timely filed an appeal from that Order, along with the motion for reconsideration, on March 8, 1989. However, because of the nature of this case, which was continuing with various motions for reconsideration being considered, and no final Order dispositive of the matter at issue being presented until April 7th, and the final Order on the case as a whole not being entered until May 1, 1989, justice requires that we treat the Order of April 7th as the appealable Order. It appears the appellant followed the rules of appellate procedure in good faith and, through a misunderstanding of the action of Judge Tucker, who issued a rule to show cause on the request for reconsideration rather than issuing an Order granting reconsideration, withdrew her appeal to the Order of February 8, 1989, resulting in the problem stated by the majority. A rundown of the various Orders and petitions is necessary to illustrate the difficulties appellant faced in keeping the appellate clock alive in this respect.

Feb. 8, 1989: Temporary ex parte protection order entered; temporary custody denied.
Feb. 24, 1989: Hearing for final protection order; respondent failed to appear. Forthwith bench warrant issued; case listed for status March 29, 1989. Temporary order continued as issued on Feb. 8, 1989; petitioner’s motion to amend to include temporary custody denied.
March 8, 1989: Notice of Appeal filed with the Superior Court. Petition for Reconsideration filed with Judge Tucker. Rule to Show Cause signed by Judge Tucker with hearing date set for March 29, 1989. Petitioner’s counsel directed by Judge Tucker to file brief in support of petition by March 20, 1989.
March 20, 1989: Brief in support of petition for reconsideration filed with Judge Tucker. Judge Tucker informed counsel that she did not wish to hear oral argument on March 29, 1989, and would decide the matter on the brief.
March 28,1989: Praecipe to Strike Appeal filed, pursuant to Pa.R.A.P. 1701(b)(3).
March 29, 1989: Status listing; respondent failed to appear. Second bench warrant issued; case continued to May 1, 1989. Temporary order continued as issued on Feb. 8, 1989.
April 7, 1989: Judge Tucker, without written opinion, issued the following order: “AND NOW, this 7th day of April, 1989, after consideration of Brief in Support of Plaintiff’s Application for Reconsideration, it is hereby ORDERED and DECREED that Plaintiff’s Motion for Amended Temporary Ex-Parte Order for award of temporary custody of minor children Tiesha Valentine, Tayana Valentine, Stephan Valentine and Cashmere Valentine, pursuant to Section 10185 of the Protection From Abuse Act is DENIED.”
April 17, 1989: Respondent brought in on bench warrant. Ordered held for hearing May 1, 1989. Temporary order continued as issued Feb. 8, 1989.
April 24, 1989: Petitioner filed a petition with Judge Tucker asking her to amend her order of April 7, 1989 to include the language prescribed by 42 Pa.C.S. 702(b) so that petitioner could file a petition for permission to appeal the April 7, 1989 order.
May 1, 1989: Hearing for final protection order. Both parties appeared; one year order by consent entered.
May 4, 1989: Judge Tucker, without written opinion, issued an order denying petitioner’s application of April 24, 1989.
May 5, 1989: Notice of Appeal from the order of April 7, 1989 filed with the Superior Court.

It is apparent that Judge Tucker, in considering the merits of the petition for reconsideration filed on March 8th, by issuing a rule tq shqw cause and directing counsel to file briefs, led the appellant to believe the requirements of Rule 1701(b)(3) had been met and that she was, therefore, required to withdraw her appeal. Rule 1701 provides in pertinent part:

(b) Authority of a Trial Court or Agency After Appeal. After an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may:
(3) Grant reconsideration of the order which is the subject of the appeal or petition, if:
(i) an application for reconsideration of the order is filed in the trial court or other government unit within the time provided or prescribed by law; and
(ii) an order expressly granting reconsideration of such prior order is filed in the trial court or other government unit within the time prescribed by these rules for the filing of a notice of appeal or petition for review of a quasijudicial order with respect to such order, or within any shorter time provided or prescribed by law for the granting of reconsideration.

A timely order granting reconsideration under this paragraph shall render inoperative any such notice of appeal or petition for review of a quasijudicial order theretofore or thereafter filed or docketed with respect to the prior order. The petitioning party shall and any party may file a praecipe with the prothonotary of any court in which such an inoperative notice or petition is filed or docketed and the prothonotary shall note on the docket that such notice or petition has been stricken under this rule. Where a timely order of reconsideration is entered under this paragraph, the time for filing a notice of appeal or petition for review begins to run anew after the entry of the decision on reconsideration, whether or not that decision amounts to a reaffirmation of the prior determination of the trial court or other government unit. No additional fees shall be required for the filing of the new notice of appeal or petition for review. (Emphasis added.)

It is unquestionable that appellant, in good faith, followed this procedure and believed that when Judge Tucker agreed to reconsider by issuing a rule to show cause and directing a briefing schedule and hearing date after an appeal had been taken, the trial court would be without jurisdiction to review the matter until and unless the appeal was withdrawn. It is significant that appellant had the appeal of the Order of February 8th stricken on March 28th, the day before the time set for the hearing by the trial judge. I believe Rule 1701 requirements were met and the harsh technical application upon which the majority insists denies fundamental justice in this case. This Court has never applied a technical interpretation of a rule to deny fundamental justice when the basic requirements have been met in good faith by the parties. In Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979), the Supreme Court held that despite the rigidity of the rule and its interpretation requiring an appeal be filed within 30 days of the Order, it carved out a narrow and limited exception wherein an attorney, as an officer of the court, is analogous to court officials where breakdown of the court’s operation occurs, and at least in those circumstances involving non-negligent failure to file an appeal, members of the public should not lose their day in court.

Here, the requirements of Bass were met in that there was no fraud, the attorney, acting in good faith, withdrew the appeal which protected the right of review of the question at issue, on the assumption that Rule 1701 required striking the appeal to permit the trial judge to reconsider the Order of February 8th. By construing the requirements of Rule 1701 to have been essentially met, the status of the case is to extend the time for filing an appeal to the date of the Order on the motion for reconsideration. That Order was filed on April 7, 1989, and I therefore, believe the appeal filed May 5, 1989 was timely. These facts make out a stronger case than Bass for excepting to the requirements of Pa.R.A.P. 105(b) Enlargement of Time. The extension here was not a matter of indulgence but flows from the apparent action of the trial judge in granting reconsideration, without a specific Order to that effect, with the appellant acting in good faith as though such an Order had been issued. Rule 105(a) Liberal Construction and Modification of Rules, states: “These rules shall be liberally construed to serve the just, speedy and inexpensive determination of every matter to which they are applicable.”

I believe the appeal of May 5, 1989, is, therefore, timely, and is clearly permitted by a reasonable application of Rules 105 and 1701 to the procedure in this case, as followed in the trial court. To quash under these circumstances, when delay in resolving the important issue presented here will only produce hardship to untold numbers of persons before the law became settled, is unconscionable.

For the above reasons, I would reverse the trial court in her refusal to enter a temporary custody order because the facts of this case clearly would support such a disposition. I would not construe this to mean, as suggested by Amici, that in cases of child retention on visitation or child snatching unrelated to abuse as defined in the act, that a protection from abuse petition can be entertained for the purpose of obtaining a temporary custody order pursuant to the Act. The desirability of such an expansion of the definition of abuse must be left to the legislature, despite recognition that it is a terrible assault on the parent from whom the child is taken, and a cruel if not devastating psychological affront to the child. I do not believe the Act, standing alone, comprehends those matters. With this holding, we could have taken the application of the Protection From Abuse Act to its reasonable limits as I conceive the legislative intent. I would not intend this holding to shortcut custody proceedings or to substitute for the special relief provision of the custody rules. I believe the trial judges of Pennsylvania are fully capable of drawing the line between cases calling for protection and those which attempt to circumvent normal custody proceedings. To prevent the problem footnoted in Rosenberg, supra, the trial court could direct, as a part of the temporary order, that one or the other party must initiate a formal custody proceeding before a request is made to extend the temporary Order. As the matter has been resolved in the trial court, I would not disturb the result but reverse the finding of the trial court that the petition for temporary custody be dismissed.

      . § 10182. Definitions
      As used in this act:
      “Abuse” means the occurrence of one or more of the following acts between family or household members, sexual or intimate partners or persons who share biological parenthood:
      (i) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury, rape, spousal sexual assault or involuntary deviate sexual intercourse with or without a deadly weapon.
      (ii) Placing by physical menace another in fear of imminent serious bodily injury.
      (iii) The infliction of false imprisonment pursuant to 18 Pa.C.S. § 2903 (relating to false imprisonment).
      (iv) Physically or sexually abusing minor children as defined in this definition or pursuant to the act of November 26, 1975 (P.L. 438, No. 124), known as the "Child Protective Services Law.”

      . § 10186. Relief
      (a) The court shall be empowered to grant any protection order or approve any consent agreement to bring about a cessation of abuse of the plaintiff or minor children, which may include:
      (4) Awarding temporary custody of and/or establishing temporary visitation rights with regard to minor children.

      . The Supreme Court has acknowledged the flexibility of the rules when trial courts have taken under advisement or consideration, petitions filed by counsel even after time for filing has passed. See Commonwealth v. Sheaff, 365 Pa.Super. 613, 530 A.2d 480 (1987); see also Commonwealth v. Moore, 389 Pa.Super. 473, 567 A.2d 701 (1989).


author: CAVANAUGH, Judge:

text:
    580 A.2d 765
    Alice J. LYMAN, Catherine A. Lyman, and Cletus P. Lyman, Appellants, v. Tobyann BOONIN, Ruth Helen Dalton, Arnold D. Kessler, Marvin B. Levy, Arnold Silvers, Paul M. Wapner, and the Philadelphian Owners’ Assn., Appellees.
    Superior Court of Pennsylvania.
    Argued June 6, 1990.
    Filed Aug. 7, 1990.
    Reargument Denied Oct. 19, 1990.

      Richard A. Ash, Philadelphia, for appellants.
    Lee Applebaum, Philadelphia, for appellees.
    Before CAVANAUGH, TAMILIA and CERCONE, JJ.
   CAVANAUGH, Judge:

This is an appeal from summary judgment entered in a civil action in equity brought by three non-resident owners of a condominium unit against the condominium association and individual members of its governing body, the condominium council. The action concerns the council’s policy, enacted after plaintiffs’ purchase of their unit, of giving priority to resident owners in the allocation of on-site parking, space, which is owned as a common element and is seriously limited. Appellants also object to the alleged subsidization of parking garage and lot costs and maintenance through condominium fees paid by non-resident owners who stand little chance of ever acquiring parking spaces for their units. The court below, acting on motions papers without holding a hearing, granted partial summary judgment upholding the garage policy. We affirm in part and reverse in part the grant of summary judgment and remand to the trial court for further proceedings.

In the same action, plaintiffs sought relief from a policy recently promulgated by council which restricts council membership to resident unit owners only. The court below found that this policy violated the Pennsylvania Unit Property Act; that decision is the subject of an appeal pending at No. 2019 Philadelphia 1989 and therefore we do not address it in this memorandum.

This is an appeal from a grant of summary judgment and as such the appellate court applies the same standard of review as the trial court. Therefore, we must accept as true all well-pleaded facts in the pleadings of the non-moving party [herein plaintiff], giving the non-moving party all reasonable inferences to be drawn therefrom. To uphold summary judgment, there must be not only an absence of genuine factual issues, but also an entitlement to judgment as a matter of law. Curry v. Estate of Thompson, 332 Pa.Super. 364, 481 A.2d 658 (1984); Rybas v. Wapner, 311 Pa.Super. 50, 457 A.2d 108 (1983).

The facts alleged in the pleadings are as follows. Plaintiffs are the owners of real property consisting of a condominium, identified as Unit 16B26 in the Philadelphian, a complex located in Philadelphia’s Art Museum area. All owners of units in the Philadelphian are members of an unincorporated association known as the Philadelphian Owners’ Association, which is governed by a seven-member council. Defendants are resident owners who have been members of council from at least 1986 up to the present.

The Philadelphian is a high-rise structure with 776 residential units, sixteen commercial units, and amenities which include an underground garage and outdoor parking spaces. The garage holds 300 spaces and there are twenty-five outdoor spaces on Philadelphian property. In 1986, some years after plaintiffs had purchased their condominium, council adopted an Association parking policy for the allocation of on-site parking. The catalyst for adoption of the parking policy was the shortage of parking spaces for owners who wished to acquire them combined with the practice of some owners in subletting parking spaces which they no longer needed to others without regard for the parking space waiting list maintained by Philadelphian management.

The parking policy which council adopted prohibits ad hoc subletting of parking spaces and requires that available spaces go to persons at the top of the waiting list. The policy also establishes two lists, one for resident owners and the other for non-resident owners and their tenants. As they become available, parking spaces are assigned to individuals on the resident owners’ list; only when that list is exhausted are non-resident owners and their tenants eligible for a space. At the time that the policy was adopted, plaintiffs complained in writing to council that the policy was unfairly discriminatory.

After plaintiffs experienced difficulty in securing a new tenant due to the unavailability of parking, they commenced this lawsuit. Plaintiffs filed a complaint which contained three separate prayers for relief. First, plaintiffs sought to have the Association parking policy declared unlawful. As part of their claim, they asserted that the monthly rates charged for parking were well below market rates or even the costs of operating and maintaining the garage and lot. Thus, resident and non-resident owners without parking are forced to subsidized parking for a group composed primarily of resident-owners through payment of their monthly condo fees, which cover the costs of administration, maintenance, repair, and replacement of the common elements, including parking facilities.

Plaintiffs argued that the policy was particularly unfair with respect to non-resident owners, who paid the same monthly fees as resident owners, yet could never realistically expect to secure on-site parking for their tenants, thus reducing the value of their property and preventing them from deriving any benefit from ownership of their respective interests in the parking facilities, which are owned as a common element.

Second, plaintiffs sought damages in the nature of lost rent which they attributed to the discriminatory parking policy resulting in the unavailability of parking for prospective tenants. At least one of plaintiffs’ prospective tenants declined to rent the condominium based on lack of available parking. Third, plaintiffs asked that the newly adopted requirement that Council members be resident-owners be declared unlawful. The court below granted relief only with respect to the last request. It granted summary judgment, which plaintiffs now appeal, with respect to the first two demands.

This is a case of first impression in the Commonwealth. The vast majority of unit owners at the Philadelphian are residents as well. All council members are also resident-owners. Appellants argue that there is a fiduciary duty required of condominium council members to non-resident owners who are in the minority, analogous to the fiduciary duties of corporate directors. Appellants point out that all unit owners have an undivided interest in the common elements, including parking facilities, which are to be used for the benefit of all unit owners, without regard for whether they live on the premises. Because unit owners with parking privileges pay less than fair rental value, owners without parking privileges (and without any realistic expectation of obtaining same) are forced to subsidize parking in addition to being denied enjoyment of their undivided interests in a common element.

Appellants refer us to a case decided by New Jersey’s highest court captioned Thanasoulis v. Winston Towers. That case involved a garage policy established by the condominium council which prevented non-resident owners from renting parking spaces. Resident owners could rent spaces at the rate of $25.00 per month. Tenants of non-resident owners could rent spaces directly from the condominium association at the rate of $75.00 per month. The New Jersey Supreme Court held that the parking fee regulation was beyond the power of council to adopt, reasoning that the individual condominium owner owns his unit together with an undivided interest in common elements such as the garage. While the Association possessed broad discretionary control over the garage, and could establish reasonable rules and regulations concerning the size of spaces, speed limit, and other rules to maintain safety and order, it could not expropriate the economic value of the unit owner’s interest in parking space. Id.

The court also found the parking regulation invalid because it discriminated against a non-resident unit owner by making him bear more than his proportionate share of liability for expenses. The higher parking fee paid by tenants of non-resident owners necessarily reduced the charge for common elements apportioned amongst all owners. Thanasoulis, 542 A.2d at 907.

Appellees attempt to distinguish Thanasoulis on two grounds, neither of which dissuade us from the applicability of its basic principles. First, appellees point out that there were more parking spaces than units at Winston Towers. Second, as part of the Towers’ Governing Documents, each unit owner was entitled to rent annually at least one parking space. As appellees themselves point out, however, the court found that this parking space represented each owner’s proportionate undivided share of the common element of parking facilities.

What concerned the Thanasoulis court was the expropriation of a unit owner’s proportionate interest in property deemed to be as a common element. We perceive that the same difficulty arises under the Philadelphian’s priority system, which forecloses even the future enjoyment of undivided interests in common property held by non-resident owners. Moreover, the Philadelphian policy confers an additional benefit, i.e. a whole parking space representing more than each unit owner’s proportionate interest in the common element, on the resident owner. This benefit works to the disadvantage of the non-resident owner, who is deprived of fair compensation for his undivided interest in the parking facilities because parking fees paid to the Association are less than fair market value. The non-resident owner is also forced to subsidize the costs of parking facilities which he cannot use through his payment of condo fees, a portion of which goes to maintain and operate the parking lot and garage, to pay taxes and utilities for these facilities, etc.

However, we do believe that Thanasoulis is distinguishable to the extent that it is simply not possible for the Philadelphian Owners’ Association to provide parking to all owners on precisely the same basis. Therefore, after reviewing the allegations made by plaintiffs, the agreements of sale, the Declaration of Condominium, and the Code of Regulations, we conclude that council is within its powers under the Code to enact a policy which gives resident owners priority over non-resident owners in the allocation of parking spaces, provided that such an allocation scheme includes within it a mechanism by which all present unit owners, resident and non-resident, are compensated for the use by other owners of the garage and lot, which is owned in common by all.

Council members are charged under the Code with operating parking facilities for the benefit of unit owners without distinction as to whether they reside on the premises. Council does not have the power to expropriate the property interests of some Association members for the benefit of others. However, we perceive that where it is not possible for all owners to be primary users of property held as a common element, it is reasonable for council to allocate use of that common element on the basis of residency, so long as owners who cannot be primary users of the common element can at least derive economic benefit from their ownership interests in it.

Thus, the parking policy must operate in such a fashion as to compensate all owners for their respective interests in the common element, the use of which is, by necessity, restricted to a few. Such a result might be accomplished by the collection of parking fees which fairly represent the additional benefit derived by unit owners who have access to a parking space and which compensate unit owners who are unable, because of limited capacity, to realize any benefit other than a pecuniary one from their ownership interests in the common element.

Moreover, future owners must, at the very least, be given written notice of the parking policy and its ramifications prior to purchase. Such notice must, of course, be specific and unambiguous. The language appearing in Sections 14.01 and 14.02 of the Code of Regulations does not even approach that standard.

We reach this resolution based on principles of property and contract law and our interpretation of language in the Code of Regulations which directs that parking facilities be managed to benefit unit owners, without regard for whether such owners reside on the premises.

Given our resolution of this issue, a remand is necessary to determine, as a factual matter, what on-site parking fees will fairly compensate owners who do not have parking privileges for the use of their respective interests in the on-site parking facilities. We perceive that this is not a matter which can properly be resolved on summary judgment or an appeal therefrom.

Affirmed in part, reversed in part. Case remanded for further proceedings not inconsistent with this opinion. Jurisdiction is relinquished.

      . Appellants claim that the rates charged for on-site parking are well below fair market value or even the costs associated with parking and that a portion of the fees paid by all owners must therefore be utilized to subsidize parking.

      . The rate of sixty-five dollars monthly has not changed in nearly a decade and is at least fifty percent lower than rates charged at other residential building garages in Center City.

      . Some tenants who already had parking spaces at the time that the policy was adopted were "grandfathered” in and were able to keep their spaces.

      . Language in the condominium’s Code of Regulations specifically dealing with designation of parking spaces directly supports this proposition:
      ... After all units have been sold, the Council shall have full authority to operate, manage, and use the Parking Garage for the benefit of the Unit Owners.
      Section 14.01.

      . 110 N.J. 650, 542 A.2d 900 (1988).

      . See, Code of Regulations, Section 14.01, quoted supra.