author: HESTER, Judge:

text:
    435 A.2d 201
    In the Matter of the CUSTODY OF Robert James LIBERTO and Thomas William Liberto. Appeal of James L. LIBERTO.
    Superior Court of Pennsylvania.
    Submitted March 11, 1981.
    Filed Sept. 25, 1981.

      James M. Horne, State College, for appellant.
    Robert K. Kistler, State College, for appellees.
    Before HESTER, DiSALLE and MONTGOMERY, JJ.
   HESTER, Judge:

In this child custody proceeding, appellant-father appeals from the order of the lower court dated September 26, 1980, wherein the lower court awarded permanent custody of two minor children of the parties to the appellee-mother.

We affirm.

In Lewis v. Lewis, 267 Pa.Super. 235, 239-240, 406 A.2d 781, 783-4 (1979), this court summarized the law, and our scope of review governing child custody proceedings:

“It is settled that the paramount concern in a child custody proceeding is to determine what is in the best interests of the child. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 296 A.2d 625 (1972); Sipe v. Shaffer, 263 Pa.Super. 27, 396 A.2d 1359 (1979). In a contest between parents, each party bears the burden of proving that an award to that party would be in the best interests of the child. In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977). The award must be based on the facts of record and not on mere presumptions; in particular, the tender years presumption is no longer recognized, Sipe v. Shaffer, supra; McGowan v. McGowan, 248 Pa.Super. 41, 374 A.2d 1306 (1977).
In order to ensure that the best interests of the child will be served, the appellate court will engage in a comprehensive review of the record. Scarlett v. Scarlett, 257 Pa.Super. 468, 390 A.2d 1331 (1978); In re Custody of Myers, 242 Pa.Super. 225, 363 A.2d 1242 (1976). Thus, while it will defer to the lower court’s findings of fact, the appellate court will not be bound by the deductions or the inferences made by the lower court from those facts, but will make an independent judgment based upon its own careful review of the evidence. Sipe v. Shaffer, supra; Scarlett v. Scarlett, supra. In conducting this review, the appellate court will look to whether all the pertinent facts and circumstances of the contesting parties have been fully explored and developed. See Sipe v. Shaffer, supra; Gunter v. Gunter, 240 Pa.Super. 382, 361 A.2d 307 (1976). It is the responsibility of the lower court to make a penetrating and comprehensive inquiry, and if necessary, to develop the record itself. See Commonwealth ex rel. Cox v. Cox, 255 Pa.Super. 508, 388 A.2d 1082 (1978). After fulfilling this responsibility to ensure a complete record, the court must file a comprehensive opinion containing its findings and conclusions. See Valentino v. Valentino, 259 Pa.Super. 395, 393 A.2d 885 (1978); Gunter v. Gunter, supra. Only with the benefit of a full record and full opinion can the appellate court hope to fulfill its responsibility of conducting its own careful review. Valentino v. Valentino, supra. Where the record is incomplete or the opinion of the lower court is inadequate, the case will be remanded. See Valentino v. Valentino, supra; Commonwealth ex rel. Forrester v. Forrester, 258 Pa.Su per. 397, 392 A.2d 852 (1978); Commonwealth ex rel. Cox v. Cox, supra.

We have engaged in a comprehensive review of the record and are convinced that all pertinent facts and circumstances of the contesting parties have been fully explored and developed; further, we are convinced that the lower court made a penetrating and comprehensive inquiry and, in support thereof, filed a comprehensive opinion containing its findings and conclusions as supported by the record. Thus, we agree with the lower court’s ultimate conclusion that it is in Robert’s and Thomas’s best interest to remain in the permanent custody of their mother, the appellee herein. Hence, we affirm.

The relevant facts adduced at hearing include the following:

1. Three children were born of the marriage between appellant and appellee, Ellen Marie age 18 at the time of the hearing; Robert James born February 14, 1963, and Thomas William born November 11, 1964. Because the daughter, Ellen Marie, was a senior in high school and intended to enter Indiana University of Pennsylvania in the fall, she elected to remain in the general custody of her father in Westmoreland County, Pennsylvania. As a result, Ellen Marie is not directly involved in this proceeding.
2. From 1964 until the early part of 1976, all three children lived with both parties at 399 Oakwood Street, New Kensington, Pennsylvania.
3. In February or March, 1976, appellant moved out of the family home (399 Oakwood Street) and shortly thereafter into an apartment approximately three blocks from the marital residence. Appellee and the three children continued to reside at 399 Oakwood Street until November, 1978 when she and the two boys, Robert and Thomas, moved to State College, Centre County, Pennsylvania, where they currently continue to reside.
4. Appellant and appellee were subsequently divorced from each other in October of 1976.
5. On December 12, 1976, appellant remarried. Appellant, his new wife, Sharon, and Ellen Marie (when not attending college) reside together in New Kensington, Westmoreland County, Pennsylvania.
6. From the time of the parties’ separation in early 1976, the two sons, Robert and Thomas, have resided continuously with their mother, first in Westmoreland County, and subsequently in Centre County.
7. Appellee was born in the State College area in Centre County, Pennsylvania, graduated from Penn State University with a Bachelor’s Degree, and is gainfully employed in Milesburg, fifteen miles from State College.
8. The appellant also received his Bachelor’s Degree from Penn State University, his Master’s Degree at the University of Pittsburgh, School of Business, and a Law Degree at Duquesne University Law School. Appellant is currently employed by Westmoreland County as a County Solicitor. In addition, appellant maintains a small private law practice from his home in New Kensington, Pennsylvania.

We have carefully reviewed the record in the instant case and have concluded that the children’s best interest would be served in the general custody of their mother.

Both boys appeared in chambers with the Court, the court reporter and counsel present. The younger son Thomas appeared first, prior to the testimony of any of the other witnesses, and testified that he loved both parents but preferred to live with his mother because of “the way she brings me up.” Thomas spoke of his friends in State College and the fact that he likes the people better there. He also compared State College with the New Kensington area and indicated that “there’s not too much to do in New Kensington,” .. . “just hang around the neighborhood and do stuff we shouldn’t do.” (T. 16). He also told the Court about his part-time employment as a bus boy at The Corner Room two or three nights a week and the fact that he saves most of his earnings.

At the close of testimony, the elder son Robert also appeared in chambers and testified that he loved his mother and wished to live with her. In fact, when asked by the Court if he would be willing to live with his father if so ordered, he replied that he would not. Robert also told the Court of his part-time employment as a cook at Long John Silver’s Restaurant.

Both boys confirmed the fact that they usually get their own breakfast and lunch when they are hungry, but their dinner is prepared by the appellee. Either the appellee or Robert, who has his own car, picks Tom up at night after working hours. Aside from their part-time employment which both boys appear to discharge effectively, they are assigned specific chores around the home which they complete. Neither has presented a discipline problem at home or in their community.

Educationally, Robert is a good student (A’s and B’s), while Tom is, at best, an average student. Appellant made much of this issue, claiming that both boys’ grades have suffered since their move from Westmoreland to Centre County; however, the record is devoid of any evidence in support of this contention.

The lower court found, and we agree, that both boys were cooperative, intelligent, and trustworthy. Both expressed strong desires to remain in the general custody of the appellee. As we said in Husack v. Husack, 273 Pa.Super. 192, 196, 417 A.2d 233 at 235 (1979):

“In assessing the weight to be accorded the child’s preference, his intelligence and maturity is to be considered with increased weight being accorded the preference as the child grows older.”

The appellee described the neighborhood in which she and the boys reside:

“The neighborhood I live in is a family neighborhood with mostly single family homes. There is a park located behind my house. The boys use that frequently. The neighborhood kids play a lot of softball or baseball there. We’re located about a mile from the schools and that’s easily accessible to them in addition to some of the other activities they participate in.
I have a three-bedroom brick ranch house that’s in good condition.” (T. 28).

She also testified that she believes the school system in State College is superior to the one in New Kensington. When asked whether she has any discipline problems with her sons, she responded:

“I don’t have problems with them. They have curfews and they stick with those curfews and they have responsibilities at home as far as jobs that they help with, such as mowing the yard and they do take turns with kitchen jobs, cleaning and they’re also capable of washing their own clothes and helping with other things that need to be done.” (T. 32).

She indicated that the boys get along well with each other; that although they sometimes fight, they do talk things over, they spend a fair amount of time together, and they are basically friendly towards each other.

Finally, she testified that she believes the boys should live together:

“I think brothers can benefit from each other and they are different personalities but I think part of learning and part of growing up, I think it makes it easier to relate to other people if you have somebody to,—such as a brother or sister to work with.” (T. 33).

After hearing from Robert’s American history teacher to the effect that Robert received an “A” in the 11th grade, and from Tom’s 10th grade English teacher who indicated that although Tom received a “C” grade, he posed no behavior problem, the Court heard from the mother of one of Tom’s friends who indicated that while in her home, “Tom’s conduct was always commendable—he was well-mannered, just a nice well-rounded young man I felt.” (T.53).

Appellee’s family, including her parents, and her brother and his family also live in the State College area. The Court next heard from appellee’s brother, a farmer and sales engineer for a metals company who described the boys’ conduct:

“A Well they’ve been boys. They both are interested in athletics and quite often will have a game of scruff softball or whatever. Bob enjoys snowmobiling on the farms during the snow season. They spend a great deal of time with us in that respect. Tom has also been involved with snowmobiling. Bob has joined us at our hunting camp for the hunting season. So we have a pretty good idea what the boys are.
Q And what has their behavior been?
A Their behavior has been good, obedient and considerate.” (T.55).

At the close of appellee’s case, appellant testified that when he learned in the summer of 1978 that appellee planned to move from Westmoreland to Centre County, he was in a state of “emotional devastation” . . . “it made me virtually catatonic for about three months.” (T.69).

He described his relationship with his present wife Sharon as very warm and loving. After informing the Court that Sharon joins with him in seeking custody, he told the Court why he is seeking custody:

“Well, I think that they need direction. They need a two-parent home. At least while they were in New Kensington I was close enough, Sharon was close enough that if they needed help we were there. If they needed guidance, we were there because it’s very difficult being a one-parent family.
We want to help them. We wanted to help them very much. The boys, I believe, are virtually running wild. Their mother works a long day. They’re working nights or evening and I really don’t think she knows what they’re up to. They’re not bad kids, but I really believe that in the long run, they’re going to get in further trouble.” (T.73-74).
“We don’t invision any day at the beach taking care of those two boys because they’re a handful. They’re a handful for two people and they do need direction and they do need someone to take charge. And they haven’t had it and I can’t let this rest any longer. I have to do .something about it. I can’t sit by and let it happen.” (T.75).

When asked whether or not he felt it would be beneficial for his two sons to live together as brothers, he indicated that in his opinion, it would not be necessarily beneficial:

“It may be beneficial for Tom not to be raised with his brother. Tom has been the follower for many years. He’s one year behind in school, almost two years younger in age and not an intellectual equal of his brother. It’s a very unequal relationship and his older brother does dominate him. Tom has never been an only child and if he would move into our home because Ellen is away at school and if his brother doesn’t come with him, he will be an only child and I think he should perhaps have that opportunity.
Q So you feel it would be beneficial to Tom to split him from his brother if Bob won’t come and live with you? A Yes, definitely.” (T.80).

Appellant’s wife Sharon confirmed appellant’s prior testimony that she is more than willing to accept the responsibility of assuming custody of the two boys.

Next, the parties’ oldest child, Ellen Marie, age 18, an Indiana University of Pennsylvania college student, described her home life with the appellant and with Sharon in glowing terms.

A social worker for Catholic Charities evaluated appellant’s home and in response to a hypothetical question, responded that based upon her observation, appellant maintains a stable and mature environment in his home and that it would be conducive to raising teenage children. (T.107-108).

The lower court thereafter ordered a study from the Centre County Bureau of Children to evaluate appellee’s home.

Following our review of the record, we agree with the lower court that it is in Robert’s and Thomas’s best interest to remain in the general custody of their mother, the appellee. Appellee has raised the boys as a single-parent for approximately 472 years. Both boys appear to be normal, responsible and loving sons. They appear to have adjusted well to the move from Westmoreland to Centre County and to their parents’ separation and subsequent divorce. We believe that their stated preference to remain with their mother is well founded and should be given the import and significance which the lower court properly attached thereto. There is nothing in the record to support appellant’s contention that the boys are not receiving adequate supervision and “running wild.” Furthermore, we believe under the facts presented here, the two boys should not be separated.

The record indicates that both parents love the children involved in this matter. The record further discloses that both parents have a deep-seated concern for the present, as well as the future welfare of their sons.

We are satisfied that the lower court properly discharged the obligation imposed in custody cases when it structured its comprehensive original Adjudication as well as its Supplemental Opinion. We find no reason to disturb it.

As we stated in Barbara M. v. Joseph M., 286 Pa.Super. 51, 428 A.2d 567 (1981):

It is axiomatic that the singular concern in a custody proceeding is the best interest and welfare of the children involved. See Wenger v. Wenger, 267 Pa.Super. 134, 406 A.2d 555 (1979). To ensure that proper attention is addressed to this concern, we are obligated to exercise the broadest scope of review on a custody matter that is before us on appeal. Commonwealth ex rel. Drum v. Drum, 263 Pa.Super. 248, 251, 397 A.2d 1192, 1193 (1979). Nonetheless, since the trial judge is in the best position to evaluate the attitudes, sincerity, credibility, and demeanor of the witnesses involved, his “determination of custody should be accorded great weight.” Commonwealth ex rel. Rainford v. Cirillo, 222 Pa.Super. 591, 597-98, 296 A.2d 838, 841 (1972) (citation omitted). See e. g. Trefsgar v. Trefsgar, 261 Pa.Super. 1, 395 A.2d 273 (1978); Commonwealth ex rel. Zeedick v. Zeedick, 213 Pa.Super. 114, 117, 245 A.2d 663, 665 (1968). Thus, although we are not duty bound to accept the trial court’s determination, we will defer to it, absent an abuse of discretion, if the facts have been thoroughly investigated by the judge, that investigation is documented by a complete record, and a comprehensive analysis of the judge’s findings is contained in a written opinion. Commonwealth ex rel. Rainford v. Grillo, 222 Pa.Super. at 597-98, 296 A.2d at 841. See Commonwealth ex rel. Schwarz v. Schwarz, 252 Pa.Super. 95, 380 A.2d 1299 (1977). Instantly, the trial judge has complied with this formula and thus deference to his determination is warranted.

Order affirmed.

      . The two children involved in the instant appeal are Robert James Liberto and Thomas William Liberto. Robert was born February 14, 1963. He is now over the age of eighteen. Thomas was born November 11, 1964 which makes him presently sixteen. For the reason that the age of emancipation in this Commonwealth is eighteen, the instant appeal as it applies to Robert, may be moot.

      . In chambers, Robert testified that while visiting the appellant in Westmoreland County in the summer of 1979, his father asked him if he wanted to live with him. When Robert indicated that he would not, appellant brought a Habeas Corpus action in Westmoreland County. Despite same, Robert returned to Centre County. Thereafter, Robert recalls that his father took his best friend’s parents to court because they helped him to get back to Centre County (T.120). Appellant’s recollection of the series of events which took place in the summer of 1977, differs dramatically (T.83- 85).


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    435 A.2d 207
    Marie CIANFARINI v. Anthony CIANFARINI, Appellant.
    Superior Court of Pennsylvania.
    Argued March 2, 1981.
    Filed Sept. 25, 1981.

      Julius E. Fioravanti, Philadelphia, for appellant.
    Fredrick Smith, Philadelphia, did not file a brief on behalf of appellee.
    Before CERCONE, President Judge, and WICKERSHAM and BROSKY, JJ.
   BROSKY, Judge:

This is an appeal from the order of support entered February 26, 1980 directing appellant-father to pay the sum of $75 per week for the support of his two children: $45 per week for Steven and $30 per week for Doreen. At the time of the filing of the complaint, Steven was eighteen and Doreen twelve. The parties were divorced in 1976. The central issue for our determination is whether the court below abused its discretion in ordering appellant to pay the sum of $45 per week for the support of his son Steven, who lives at home with appellee and attends college. We reverse and remand.

The record shows that prior to the filing of the complaint for support, appellant had been voluntarily providing $50 per week for the support of his children. When Steven turned eighteen and began attending college, Mr. Cianfarini stopped contributing to his support, thereby decreasing his voluntary contribution by $25. However, appellant did contribute the sum of $1,000 towards the first year of Steven’s college education, to supplement a grant and a student loan.

Appellant contends that the award of support of $75 is unjustified by the evidence and creates an undue hardship upon him. He also argues that the court below erred in not giving due regard to the one thousand dollars already contributed by him to his son for educational expenses.

At the outset, we note that it is not the function of this court, in the absence of an abuse of discretion, to reverse where there was sufficient evidence to sustain the court below. Commonwealth ex rel. Schmidt v. Schmidt, 223 Pa.Super. 20, 296 A.2d 855 (1972); Commonwealth ex rel. Nicholson v. Groff, 169 Pa.Super. 12, 82 A.2d 536 (1951).

The rule regarding a father’s duty to provide a college education for his child was stated in Commonwealth ex rel. Williams v. Williams, 242 Pa.Super. 550, 552, 364 A.2d 410, 411 (1976):

[A] father has no duty to aid in providing a college education for his child, no matter how deserving, willing or able the child may be, unless the father has sufficient estate, earning capacity or income to enable him to do so without undue hardship to himself, [citations omitted].

The existence of undue hardship will depend upon the circumstances. Commonwealth ex rel. Williams v. Williams, supra, 242 Pa.Super. at 553, 364 A.2d at 411. In Commonwealth ex rel. Larsen v. Larsen, 211 Pa.Super. 30, 234 A.2d 18 (1967), we stated:

No mathematical rule can be formulated to determine how extensive the hardship upon a father must be before it will excuse him from supporting a child in college. It must be a matter of judgment in a field where the judgments of sincere and advised men differ materially.

Id., 211 Pa.Super. at 34, 234 A.2d at 20, quoting Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa. Super. 640, 644-645, 190 A.2d 182, 184 (1963).

Appellant testified that his take-home salary as a truck driver for a delivery company is approximately $280 $310 per week, depending on overtime. On his budget sheet, he listed his expenses as totaling $227 per week, not including support.

At the hearing, the following exchange occurred between appellee and the court:

THE COURT: [Appellant] did contribute a thousand dollars towards the child’s education?
MRS. CIANFARINI: Yes, he did.
THE COURT: He has three more years to go, is that right?
MRS. CIANFARINI: Yes. It is either a four or five-year program.
THE COURT: What is he studying?
MRS. CIANFARINI: Engineering.
THE COURT: There is really no time limit on engineering.
MRS. CIANFARINI: I am not asking for schooling. I am asking for support because he lives with me.

Mrs. Cianfarini did not however, produce any evidence concerning Steven’s schooling expenses.

We find that the lower court abused its discretion here. Given appellant’s take-home pay of approximately $280, we find that $75 per week would create an undue hardship since, subtracting his weekly expenses of $227, which amount does not include support, appellant would be left with nothing. However, since appellant was apparently able to pay the sum of $25 per week for Steven before Steven went to college, and since appellant did not testify that such amount created a hardship to him, we hold that an order directing appellant to pay $55 per week, $25 for Steven’s educational expenses and $30 for the support of Doreen, would be fair and equitable. In so deciding, we are mindful of the fact that appellant has already contributed one thousand dollars toward Steven’s tuition expenses.

Accordingly, we reverse and remand the case to the court below to draft an order consistent with this opinion.

WICKERSHAM, J., dissents.

      . In this appeal, appellant challenges only the portion of the order relating to his son.


text:
    435 A.2d 208
    ABLIN, INC. T/A Thrifty Rent-A-Car, a corporation, Appellant, v. BELL TELEPHONE COMPANY OF PENNSYLVANIA, a corporation, and The Reuben H. Donnelley Corporation, a corporation.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1980.
    Filed Sept. 25, 1981.

      John C. Keir, Philadelphia, for appellant.
    Harriet F. Withstandley, Philadelphia, for Bell, appellee. Thomas E. Zemaitis, Philadelphia, for Reuben, appellee.
    Before SPAETH, BROSKY and HOFFMAN, JJ.
   BROSKY, Judge:

Ablin, Inc., t/a Thrifty Rent-A-Car (hereinafter “Ablin”) filed a Complaint in Equity against both defendant-appellees, containing Class Action Allegations in accordance with Pa.R.C.P. 1704. Both appellees filed preliminary objections in the nature of a demurrer, which objections were denied. Thereafter the appellees filed answers, and the court below held an evidentiary hearing and heard argument on certification of the class. Certification was denied by order dated April 23, 1980. This appeal followed.

The central issue for our determination is whether the class action proposed by Ablin satisfies the prerequisites set forth in Pa.R.C.P. 1702. The court below found that two of the five prerequisites, commonality and typicality, were not met. We reverse and remand.

Ablin contends that the proposed class meets the requirements of “commonality” and “typicality.” In its complaint, Ablin alleged that it was and is, Bell Telephone’s usual business practice to accept subscriptions for classified advertising in its Yellow Pages, from subscribers who are allowed to pay for such advertising in equal monthly installments over a period of 12 months. When Ablin attempted to pay for its advertising in this manner, it was advised that it could not do so, because it was deemed a bad credit risk by Bell. Ablin was told it would have to pay in advance. Thereafter, Ablin (/aid the full amount of its advertising cost in advance, for the 12 month period. Ablin asserts that neither Bell nor Donnelley extended to it any commensurate rate discount or other benefit to compensate Ablin for requiring it to pay the full amount in advance. By failing or refusing to extend to Ablin such discount or other benefit, Ablin alleged, both appellees discriminated against it. After praying for equitable relief, Ablin stated its Class Action Allegations. The essence of its claim for class certification is contained in paragraph 23:

23. Plaintiff is representative of and sues on behalf of the class of all individuals, partnerships and corporations which have been, as plaintiff has been, discriminated against contrary to law and/or statute, in that they have been required by defendants to pay for classified advertising in defendants’ Yellow Pages in advance, contrary to defendants’ usual business practice, and without being extended any commensurate discount or other benefit to compensate them for being required to make payments in advance.

In the succeeding allegations, Ablin sets out the requisite averments of fact in support of the prerequisites of Pa.R. C.P. 1702 and the criteria specified in Rules 1708 and 1709, in accordance with Pa.R.C.P. 1704.

The court below made the following findings of fact: After review of the Amended Complaint, the transcript of the testimony and oral argument on class certification, and the evidence elicited through written interrogatories, this Court concludes that two possible classes emerge. The record indicates, and Defendants do not deny, that at the most, the proposed class could number 36,800, the number of customers who were required to pay in advance during the year in question. However, this figure includes a group of 35,694 “national subscribers”. National subscribers are businesses that advertise in directories both inside and outside of Pennsylvania. National subscribers do not contract with the Defendants for advertising. They contract through the National Yellow Pages Service Association which is an advertising agency. This agency, in turn, places advertisements with a representative of the Defendant, Reuben H. Donnelley Corporation, which is a member of the National Yellow Pages Service Association. Defendant, Reuben H. Donnelley Corporation, in turn places ads in local yellow page directories. National subscribers are always required to make advance payment for their advertising.
Edgar H. Simmons, Directory supervisor of sales and service for Bell Telephone Company, testified that there are no conditions under which a national advertiser does not pay in advance. He also testified that no concessions are given to national advertisers for prepayment and that the charges for advertising are exactly the same rate, whether the customer is national or local.
Plaintiff is admittedly a local subscriber. A local subscriber places yellow page advertising directly with Defendant without the intermediate allocation service of National Yellow Pages Services Association.
* * 4= 4. * *

It also found that “national subscribers are in fact those customers referred to in [Ablin’s] complaint and that “national subscribers are not customers who are treated ‘contrary to defendants’ usual business practice.”

For these reasons, the court below concluded that Ablin’s claim was not typical of the claims of national subscribers. It then went on to consider whether Ablin’s claim was typical of the claims of local subscribers, who may be divided into two groups: those who are permitted to pay their costs over a 12 month period, and those who are required to pay in advance. The uncontradicted testimony of Mr. Simmons, as adopted by the court below, shows that:

[o]nly a small percentage of local subscribers pay the full cost in advance. During the year 1978, the year in question, only 204 local advertisers in all of Pennsylvania paid in advance. Of these, 109 were located in the eastern area of Pennsylvania, 49 in Philadelphia County, 28 in various industrial areas of the state and 18 in the Pittsburgh area. Defendant Bell Telephone Company had specific criteria for determining which, if any, of its local subscribers paid in advance for yellow page advertising. A customer is evaluated based on the amount of advertising requested and on its past history on file.
Thus, a credit review is required for
1. New purchasers who request advertising which cost exceeds $50.00 a month;
2. Current advertisers who
(a) request increases in advertisement by an amount greater than $100.00 a month.
(b) are classified as “Class D” because of experience by Bell in the manner that the telephone bill has been paid in the past; that is if the customer has been “treated” on at “least three occasions in the last three months” [requiring reminder of overdue bills],
(c) are slow paying bills and, at the time the advertising request is made, are currently two months delinquent in paying advertising costs.
In all such cases an individual determination is made as to whether payment in advance will be required.

The court concluded that vis-a-vis the other local subscribers, Ablin’s claim was not typical, since the facts surrounding each local subscriber’s credit worthiness and course of dealing with Bell differ.

The prerequisites to maintaining a class action are set forth at Pa.R.C.P. 1702, which provides:

“Rule 1702. Prerequisites to a Class Action
One or more member of a class may sue or be sued as representative parties on behalf of all members in a class action only if
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
(4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709; and
(5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.

We begin our review with an analysis of Ablin’s claim. Ablin contends that it is representative of the class of individuals, partnerships and corporations which have been, as it has been, discriminated against by virtue of its having to pay in advance for Yellow Pages advertising “contrary to defendants’ usual business practice,” and without being extended any commensurate discount or other benefit in return for such advance payment. To establish what is “defendants’ usual business practice,” Ablin asked, in his Interrogatories:

1. Is it your usual business practice to permit subscribers for classified advertising in the Yellow Pages, to pay the annual charge therefor in equal successive monthly payments over a period of 12 months, commencing with the month in which the Yellow Pages is distributed?

The Donnelley corporation responded to this question in the negative. It replied that its “usual and exclusive business practice” was to require “national subscribers” to pay the full amount in advance, and that it has no “usual business practice” regarding the method by which local subscribers, who contract directly with Bell, pay for their advertising. “Such determinations [with regard to local subscribers] are made solely by Bell ...”

Bell responded, in answer to Interrogatory No. 1, “Yes, for customers with known good credit.”

Ablin also asked about the circumstances under which arrangements requiring a person to make advance payments are made. Donnelley again stated that all national subscribers are required to pay in advance. Bell responded:

7. Full or partial payment of the charges for advertising may be requested and advertising may be refused if a customer’s credit is unsatisfactory, (emphasis added).

Based upon an examination of the entire record, including the Interrogatories propounded by Ablin and the Answers filed thereto by Bell and Donnelley, we find that the lower court was correct in its determination that national subscribers are not properly includable in the proposed class of

[individuals, partnerships and corporations [who] have been discriminated against ... in that they have been required ... to pay for classified advertising in [Bell’s] Yellow Pages in advance, contrary to defendants’ usual business practice . . .

While it is true that national subscribers have been required since at least 1960 to pay in advance, it is not the case that such advance payment has been contrary to the usual business practice of the agency with whom they contract, namely, the Donnelley corporation. The “usual business practice” which is under attack here is clearly Bell’s, not Donnelley’s, since the gist of Ablin’s claim of discrimination is that some subscribers are permitted to make payments in installments over a 12 month period, while others, itself included, are not. Since Ablin is a local subscriber whose mode of payment is governed by Bell, not Donnelley, we do not see how it can purport to represent a class which includes national subscribers. The rationale for requiring Ablin and certain other local subscribers to pay in advance does not apply to national subscribers. Some local subscribers are required by Bell to pay in advance because they fall into the category of individuals and businesses for which a credit review is required. Put another way, they are not in the category of those customers “with known good credit.” In the case of national subscribers, the steadfast and unalterable policy is advance payment. Mr. Simmons of Bell testified that the policy requiring national subscribers to pay in advance had no relationship to credit worthiness.

The typicality requirement of Pa.R.C.P. 1702(3) is closely akin to both the commonality requirement of subsection (2) and the adequacy of representation requirement of subsection (4). The requirement was designed to ensure that the representative is squarely aligned in interests with the proposed class, on the theory that pursuit by the representative of its own interests will advance the interests of the proposed class members, which are aligned with those of the representative. 1 Newburg on Class Actions § 1115a.

Self-interest, the motivating force that sparks the adversary system, also sustains the doctrine of class actions. We may trust man to help his fellow man if by doing so he helps himself—particularly if only by helping others will he be able to protect and promote his own interests . . . Our system of justice tolerates and at times' favors litigation through champions who stand or fall with the whole group, (emphasis in original).

Newburg, supra, quoting Homburger, “State Class Actions and the Federal Rule,” 71 Colum.L.R. 601, 609 (1971).

Here, the interests of national subscribers are not advanced by advancement of Ablin’s interest, since the reason for Ablin’s having to pay in advance is connected to Bell’s credit review determinations which do not apply to national subscribers. Ablin’s claim does not “stand or fall” with the group of national subscribers. Fundamental to Ablin’s claim is the proposition that it, as a local subscriber, must be treated in the same fashion as the category of customers who are permitted to pay in installments, namely, those local subscribers who have been deemed by Bell to be “creditworthy.” A national subscriber would gain nothing if Ablin is able to sustain this claim, since credit determinations do not enter the picture insofar as national subscribers are concerned.

In addition, we wish to note that the typicality requirement is very much related to the concept of constitutional standing. As we stated in Allesandro v. State Farm Mutual Auto Insurance Company, 259 Pa.Super. 571, 580, 393 A.2d 973, 977 (1978), [rev’d in part, on other grounds 487 Pa. 274, 409 A.2d 347 (1979)], “a person cannot litigate claims of a class of which he is not a member.” Since Ablin is not a national subscriber, and since the interests of national subscribers are not aligned with Ablin’s, we hold that Ablin has failed to satisfy Pa.R.C.P. 1702(3) with respect to its proposed class consisting of both national and local subscribers.

As the lower court correctly noted, Ablin also faces a problem as the representative of a class composed solely of local subscribers. The record shows that there are 204 local subscribers who pay in advance. Of these, it was not established how many were deemed “creditworthy” and allowed to pay in monthly installments.

Applying Pa.R.C.P. 1702 to a potential class of local subscribers only, it is immediately clear that the interests of Ablin and the other local subscribers deemed not “creditworthy” are adverse to the interests of those local subscribers found to be “creditworthy.” Those “creditworthy” local subscribers have no reason to challenge Bell’s practice of allowing them to pay over a 12 month period. Thus, there is no question of law or fact common to the class of all local subscribers. Creditworthy local subscribers do not belong to the class of customers who have been discriminated against contrary to Bell’s “usual business practice.”

The only remaining class, then, is the subclass of local subscribers required to pay in advance, to which Ablin clearly belongs. The question then becomes whether such class meets the prerequisites of Pa.R.C.P. 1702. However, we are unable to decide this question based upon the present record, since the court below did not address itself to the limited issue of whether Ablin may maintain a class action on behalf of a class consisting solely of those local subscribers who are required to pay for their advertising in the Yellow Pages in advance.

Although there are factual differences with regard to each member of this class, since a separate credit determination is made as to each individual, this fact does not, in our opinion, render Ablin’s claim atypical of the class as a whole. Ablin’s claim arises from the same practice or course of conduct on the part of Bell that gives rise to the potential claims of every other member of this class, namely, that each was forced to pay in advance contrary to Bell’s “usual business practice.” See 1 Newburg on Class Actions 1115c. The “question of law or fact” common to the class is the advance payment requirement. Thus, we find that requirements (2) and (3) of Pa.R.C.P. 1702 are satisfied. However, we must remand for a determination as to whether prerequisites (4) and (5) of Pa.R.C.P. 1702 would be satisfied with regard to a potential class made up of all local subscribers required by Bell to pay for their Yellow Pages advertising in advance, rather than in monthly installments.

Reversed and remanded for proceedings consistent with this opinion.

      . In Bell v. Beneficial Consumer Discount Company, 465 Pa. 225, 229, 348 A.2d 734, 736 (1975), the Supreme Court of Pennsylvania held that orders denying class action status are appealable as final orders.

      . Pa.R.C.P. 1702(2).

      . Pa.R.C.P. 1702(3).

      . As the lower court acknowledged, it is permitted, under Pa.R.C.P. 1710(c)(2), to divide a class into subclasses and to treat each subclass as a class for purposes of certifying or refusing to certify said class. Here, the class consisting of national and local subscribers could be divided into the following subclasses: national subscribers; “creditworthy” local subscribers; and “non-creditworthy” local subscribers.

      . Satisfaction of the numerosity prerequisite by Ablin was not challenged by Bell or Donnelley in the court below with regard to the class proposed by Ablin, consisting of a total of 36,800 members, of which figure 35,694 are national subscribers. With regard to the class of 204 local subscribers who were required to make advance payment, we find that the numerosity requirement is satisfied. Our finding is based upon an examination of “whether the number of potential individual plaintiffs would pose a grave imposition on the resources of the court and an unnecessary drain on the energies and resources of the litigants should such potential plaintiffs sue individually.” Temple University of the Commonwealth System of Higher Education v. Penna. Dept. of Public Welfare, 30 Pa.Cmwlth. 595, 603, 374 A.2d 991, 996 (1977). Here, we find that 204 potential litigants poses such an imposition.

      . Prerequisites (4) and (5) are set out on page 211, infra.


text:
    435 A.2d 214
    COMMONWEALTH of Pennsylvania ex rel. Sandra V. KISTLER v. George W. KISTLER, Jr. Appeal of Sandra V. KISTLER.
    Superior Court of Pennsylvania.
    Argued March 3, 1981.
    Filed Sept. 25, 1981.

      Mark S. Sigmon, Bethlehem, for appellant.
    Joseph C. Bernstein, Allentown, for appellee.
    Before CERCONE, President Judge, and WICKERSHAM ■ and BROSKY, JJ.
   BROSKY, Judge:

This is a support case. Sandra Kistler has appealed from the lower court’s order granting appellee’s petition to modify and reducing the amount of support to be paid to appellant from $225 per week to $100 per week, retroactive to the date of filing, March 17, 1980. In addition, appellee was found to be in contempt of court and directed to pay $1,500 within 30 days. The issue before us is whether appellee showed a change in circumstances which would justify the reduction. We find that he did not, and accordingly reverse.

The basic facts, which are not in dispute, are as follows. The parties were married on March 9, 1974, and separated August 17, 1978. Prior to and during her marriage, Mrs. Kistler was employed by United Airlines. When her husband insisted that they move from New Jersey to Allentown, Pennsylvania, Mrs. Kistler continued to work for United Airlines on a part-time basis, in their Allentown office. At all times relevant to this appeal, appellee was and remains, president of Geo. W. Kistler, Inc. The six hundred pages of testimony taken during the three hearings in this case focus primarily upon the earnings and losses of Geo. W. Kistler, Inc. At the time of the December 5, 1978 hearing, appellee was the president and sole shareholder, receiving a weekly salary of $900, for a gross yearly salary of $46,000. The corporation provided appellee with a vehicle, a 1978 Cadillac, and paid all the insurance, gas and maintenance expenses. The corporation also provided appellee with Blue Cross and Blue Shield; paid all his travel and entertainment expenses, and paid him a monthly rental of $2,000 for a building which it leases from him. As of December 5, 1978, appellee’s net worth was $200,000. At the time of the December 5, hearing, appellee resided with his father, but testified that he intended to purchase a condominium for $54,000.

At the November 14, 1979 hearing, appellee testified that his corporation had a severe “working capital” problem, and that upon the advice of a management consultant, he had reduced his salary from $900 to $700 per week. Due to the need for capital, Mr. Kistler opened up his corporation to an outside investor, a Mr. Kuthy, who purchased roughly 25% of the corporation’s stock. Based upon the purchase price, the stock of the corporation was worth approximately $200,000 at the time of purchase, according to Thomas McDonald, the certified public accountant who handled the corporation’s books. The testimony of Mr. McDonald established that the purchase of the stock was very beneficial to the corporation. Appellee also testified that his mother had purchased the condominium about which he had testified at the December, 1978 hearing, because the bank had denied him a mortgage; and that he was living in it and paying her $325 per month rent, plus $55 per month for maintenance. Although he indicated that he had an agreement with his mother that he would pay her back for the purchase of the condominium, no written agreement was produced by him to this effect; and he admitted that he was not currently making any payments to her.

At the February 13, 1980 hearing, Mr. Kistler testified to a personal financial statement prepared by him which showed his net worth to be $177,124 as of June 22, 1979. He also stated that he owned real estate worth $220,000, encumbered by a mortgage of $153,598.

Appellee stated that his net worth as of February 13, 1980 was approximately $170,000. He also testified that he had received $19,000 as his share of the proceeds upon the sale of the marital residence.

At the April 30, 1980 hearing, appellee testified that his total income for 1979, as indicated on his W-2 form, was $38,800. His weekly income of $700 had remained the same, and he was still receiving the same amount of monthly rental income from the corporation for the use of the building. Mr. Kistler also received the same benefits as before, including the ear and health insurance. The only significant change testified to by appellee with regard to the financial condition of his corporation was the fact that an ongoing sales and use tax audit had been concluded unfavorably, resulting in a $14,000 deficiency owed to the Bureau by the corporation. Mr. Kistler stated that this obligation was going to be repaid at the rate of $1,000 per, month.

Mrs. Kistler testified that she lived with her parents, paying them $75 per week. She was still employed by United Airlines part-time; however, her hours had been decreased from 3V2 hours per day for 4-5 days per week to IV2 hours per day for 6 days per week. Her hourly pay increased from the time of the first hearing, from $8.12 per hour to $10.57 per hour.

At the time of the April, 1980 hearing, it was established that the arrearages on the original support order were $7,680.

At the outset, we note that our scope of review in this case is narrowly defined, and that we will not interfere with the lower court’s determination absent a clear abuse of discretion. Commonwealth ex rel. Levy v. Levy, 240 Pa.Super. 168, 361 A.2d 781 (1976); Commonwealth ex rel. McQuiddy v. McQuiddy, 238 Pa.Super. 390, 358 A.2d 102 (1976).

An abuse of discretion does not necessarily imply a willful abuse, but if, in reaching a conclusion, the law is overridden or misapplied or the judgment exercised is manifestly unreasonable as shown by the evidence or the record, discretion is then abused and it is the duty of the appellate court to correct the error. (Emphasis in original). Prescott v. Prescott, 284 Pa.Super. 430, 435, 426 A.2d 123, 126 (1981).

“A finding of abuse of discretion is not lightly made; but only upon a showing of clear and convincing evidence.” Commonwealth ex rel. Hartranft v. Hartranft, 267 Pa.Super. 572, 574, 407 A.2d 389, 390 (1979).

It is equally well established that it is the burden of the party seeking to modify a support order to show by competent evidence such a change of circumstances as will justify a modification. Commonwealth ex rel. Levy v. Levy, supra; Bell v. Bell, 228 Pa.Super. 280, 323 A.2d 267 (1974). The change must be material and substantial. Bell v. Bell, supra.

Here, we find, upon a thorough examination of the record, that appellee has not met his burden of showing such a change of circumstances. Appellee’s evidence consists primarily of his testimony to the effect that his net worth decreased from $200,000 to $177,000. We do not find this decrease to be substantial or meaningful, especially in view of the fact that appellee’s corporation is still financially viable. Although appellee’s accountant testified that the corporation had working capital problems, it also was established that those problems were greatly diminished by the addition of Mr. Kuthy, who purchased 25% of the corporation’s stock. The corporation continues to supply Mr. Kistler with an automobile and to pay for all expenses in connection therewith. Mr. Kistler continues to receive a monthly rental of $2,000 from the corporation for use of his building, which is valued at $220,000 less the mortgage encumbrance of $153,598. Therefore, the fact that appellee’s net worth may have decreased, when viewed in light of all the relevant facts, Bell v. Bell, supra, is not sufficient to warrant a modification.

The corporation is still financially sound, and continues to provide appellee with a weekly income of $700, for an approximate yearly income of $36,000. Although appellee makes much of this reduction in salary, the record shows that he agreed voluntarily to it, in order to help the corporation. We can see no reason why appellee’s salary could not be increased now that the corporation’s financial problems have been mitigated. Also, it is well established that it is the earning power and not merely the actual earnings, which must be considered. Commonwealth ex rel. Levy v. Levy, supra. In Levy, a physician voluntarily took a reduction in pay by changing jobs. We held that the court may consider such a reduction as an intended circumstance, and may ignore the actual earnings and look to the defendant’s earning capacity.

It is clear here that appellee’s earning capacity has not diminished, and that his reduction in salary to benefit the corporation does not reflect his actual earning capacity.

Mr. Kistler’s only other evidence of changed circumstances is that he now pays to his mother a monthly rental of $325 plus a $55 maintenance fee; whereas at the time of the December 5, 1978 hearing appellee lived rent-free with his father. The only personal debt testified to by appellee is the amount claimed to have been advanced by his mother to purchase the condominium. No judgment note or other written evidence of this debt was produced by appellee at the time of trial, and appellee testified that he had not yet begun repayment on this obligation.

For these reasons, we hold that the court below abused its discretion, in that the evidence presented by appellee is insufficient to show such a permanent change in circumstances as would justify a modification. Commonwealth ex rel. Roviello v. Roviello, 229 Pa.Super. 428, 323 A.2d 766 (1974). Appellee’s circumstances have not materially or substantially changed since the original order for support was entered in December, 1978.

Accordingly, we hold that the lower court was not justified in modifying the support order of December 27, 1978. The order of August 26, 1980 is reversed, and the order of December 27, 1978 is reinstated, as entered by the Court of Common Pleas retroactive, however, to August 26, 1980, allowing credit for any payments thereunder.


text:
    435 A.2d 217
    Mark A. KNAUBER, Appellant, v. CONTINENTAL INSURANCE COMPANIES and Fireman’s Insurance Company.
    Superior Court of Pennsylvania.
    Argued Nov. 12, 1980.
    Filed Sept. 25, 1981.

      M. Richard Mellon, Erie, for appellant.
    Donald E. Wright, Jr., Erie, for appellees.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   BROSKY, Judge:

Appellant, Mark A. Knauber, commenced this action to recover from appellee insurance company funds which appellant claims appellee is bound to pay by reason of an insurance contract entered into by the parties. Preliminary objections made by appellee were sustained by the lower court. On appeal, the issue for our determination is whether a clause in the contract which excludes from coverage those losses caused by the intentional acts of insured persons relieves appellee of its obligation to compensate appellant for his loss. We agree with the lower court’s conclusion that it does and therefore affirm.

The facts are as follows. In May, 1977, appellant and his wife purchased a homeowner’s insurance policy issued by appellees. In July, 1979, husband and wife were separated and the husband was living in the marital residence. At that time, his wife entered the insured premises and caused destruction of property contained therein. Appellant and his wife were subsequently divorced. Appellant filed a claim with appellees to recover $2,000 for damage caused by his wife. The claim was denied on November 29, 1979, at which time the parties were divorced. This suit followed.

By way of preliminary objections, appellees asserted below that they were not liable to compensate appellant for his loss because his wife, whom all parties agree intentionally caused the damage to the property, was an insured party to the policy. The policy was issued to Mark A. and Patty A. Knauber. It provides in pertinent part:

Section 11—Additional coverages
3. Damage to Property of Others. We will pay up to $250 per occurrence for property damage to property of others caused by any insured. We will not pay for property damage:
b. caused intentionally by any insured who is 13 years of age or older;

(Emphasis in original.)

In construing the language of the policy we have kept in mind the principle that any ambiguity in the language of insurance contracts must be resolved in favor of the insured and against the insurer. See Ranieli v. Mutual Life Insurance Company of America, 271 Pa.Super. 261, 413 A.2d 396 (1979), Wetzel v. Westinghouse Electric Corporation, 258 Pa.Super. 500, 393 A.2d 470 (1978). Words in such contracts are given their plain and popular meanings. Ranieli, supra, 271 Pa.Super. at 270, 413 A.2d at 400.

This exclusion is contained in the subpart entitled “Damage to Property of Others.” Its plain meaning is that the policy will not provide coverage for damage intentionally inflicted by an insured on property not owned by him.

Appellant claims damages to property owned by him but not his insured wife. Based, then, on the plain meaning of this clause, it seems that since the damage v/as intentionally caused by an insured, no coverage is provided.

Appellant contends that the facts of his separation and subsequent divorce calls for a different conclusion. At the time of the incident for which he seeks compensation, appellant and his wife were married. Their later divorce does not affect their status as to this claim. Furthermore, appellant does not cite, nor do we find, any cases to support his argument that the fact of separation somehow changes the insurance contract’s terms. As appellant notes, this action is between the insurance company and its insured. It is not between husband and wife. As to the insurance company, the separation of husband and wife in July, 1979 was without significance. Both were still parties to the contract. As an insured, the wife was entitled to the benefits of the contract and was subject to the liabilities imposed by it.

Appellant emphasizes that the damaged property was his separate property. Even accepting his claim as true, we find it of no assistance to him. Had appellant and his wife been living together as man and wife, and had his wife destroyed his separate property, she would still have been an insured intentionally destroying property. The policy makes no distinction between separately and jointly owned property and neither can we.

We find that the separation of the parties and separate ownership of property do not affect the policy terms. The exclusionary clause, which is of the type impliedly upheld by the Third Circuit Court of Appeals in Kraus v. Allstate Insurance Company, 379 F.2d 443 (1967), applies.

Order affirmed.

      . The fact that the “other” person here is also an insured party does not seem to change the effect of the provision. The intention of the company in including such a clause in its policy is clearly to absolve itself of liability for the intentional acts of its insured persons. Regardless of who the victim is, the insured has still acted intentionally to cause the damage.


author: SHERTZ, Judge:

text:
    435 A.2d 219
    In re Yvette STUCK and Ashleigh Stuck. Appeal of Patricia E. STUCK.
    Superior Court of Pennsylvania.
    Argued June 23, 1981.
    Filed Sept. 25, 1981.

      Judy Shopp Smith, Harrisburg, for appellant.
    Jay R. Braderman, Harrisburg, for appellee.
    Before PRICE, JOHNSON and SHERTZ, JJ.
   SHERTZ, Judge:

This is an appeal from an Order expanding the parental visitation rights of Appellee, Joseph A. Stuck, with his two minor daughters. The lower court concluded that the best interests of the children would be served by allowing Appellee to spend additional time with them. We agree and therefore affirm.

Patricia E. Stuck, Appellant, and Joseph A. Stuck, who are divorced, are the natural parents of Yvette and Ashleigh Stuck. On May 17, 1979, the Court of Common Pleas of Dauphin County entered an Order awarding custody of the children to the mother and granting custodial visitation to the father. Neither parent took an appeal from the Order.

Thereafter, Appellee petitioned the court for an expansion of his visitation rights. Two hearings were held during which both parents, three psychologists, the paternal grandmother, and two neighbors testified. The testimony centered around the present and future emotional and psychological well-being of Yvette and Ashleigh.

The hearing judge also interviewed Yvette in chambers in the presence of counsel. Her testimony, which was transcribed and is part of the record, revealed that she preferred to have no contact with her father and objected to visiting him at all. There was testimony that Ashleigh, too, had begun to express objections to visiting her father.

After evaluating all the testimony, the hearing judge issued an Order on April 7, 1980, which slightly expanded Appellee’s visitation rights by adding, inter alia, a weekly three-hour weeknight visitation and an extra week during the summer. In his Opinion in support of the Order, the hearing judge analyzed the testimony and set forth in detail the reasons for his decision.

Pennsylvania courts have traditionally applied custody principles to matters involving visitation rights. See, Morris v. Morris, 271 Pa.Super. 19, 412 A.2d 139 (1979); Commonwealth ex rel. Stayko v. Stayko, 267 Pa.Super. 24, 405 A.2d 1284 (1979); Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879 (1977); Commonwealth v. Rozanski, 206 Pa.Super. 397, 213 A.2d 155 (1965).

In a visitation proceeding, as in one for custody, the singular concern is the interest and welfare of the children involved. See, Commonwealth ex rel. Barbara M. v. Joseph M., 286 Pa.Super. 51, 428 A.2d 567 (1981); Rozanski, 206 Pa.Super. at 399-400, 213 A.2d at 156. This standard applies equally to instances where visitation is modified. See, Wick v. Wick, 266 Pa.Super. 104, 403 A.2d 115 (1979). For that reason:

In cases of child custody and visitation our scope of review is broad and requires independent examination of the evidence before reaching our conclusion . . . Nor need we accept a finding which has no competent evidence to support it, “[we must] make an independent judgment based on the evidence and testimony and make such order on the merits of the case as to do right and justice.”

Spells, 250 Pa.Super. at 175 76, 378 A.2d at 883 (citations omitted).

Although the expressed preference of a child is always given consideration in custody and visitation appeals, it is not controlling, Pamela J.K. v. Roger D.J., 277 Pa.Super. 579, 592 n.8, 419 A.2d 1301, 1308 n.8 (1980); Strapple v. Strapple, 263 Pa.Super. 187, 397 A.2d 809 (1979); Tomlinson v. Tomlinson, 248 Pa.Super. 196, 203, 374 A.2d 1386 (1977).

In Commonwealth ex rel. Lotz v. Lotz, 188 Pa.Super. 241, 146 A.2d 362 (1958), aff'd, 396 Pa. 287, 152 A.2d 663 (1959), a 13-year-old girl refused to visit her father following a physical altercation between them. The mother contended that it would be a “rash gamble” to compel such visits inasmuch as her daughter feared the father and became emotionally upset at the prospect of visiting him. Nevertheless, the court allowed the father visitation and directed the mother to cooperate. This Court, noting that visitation rights must be guarded, affirmed.

In Fernald v. Fernald, 224 Pa.Super. 93, 302 A.2d 470 (1973), the father of two teenagers sought visitation with his children. Noting that the father had allegedly left their mother for another woman, and that the mother held certain religious views on family life which she regarded as seriously violated by the father’s lifestyle, the lower court denied the father’s petition. We reversed, stating that the children could be required to visit their father, despite their desire not to do so. This court refused to sanction a permanent estrangement between the father and his minor children.

Appellant seemingly does not seek to impose a permanent estrangement between the children and their father but does seek to limit their relationship.. It is against public policy, however, to destroy or limit the relationship between parent and child. Spells, 250 Pa.Super. at 175-76, 378 A.2d at 883; Commonwealth ex rel. Sorace v. Sorace, 236 Pa.Super. 42, 344 A.2d 553 (1975); Commonwealth ex rel. Lotz v. Lotz, 188 Pa.Super. at 243-44, 146 A.2d 363.

Instantly, the record establishes that expanded visitation rights will be in the best interest of the children. We are not unmindful that there was conflicting testimony as to whether an expansion of Mr. Stuck’s visitation rights at this time would be in the best interests of his daughters. That conflict was for the hearing judge to resolve, which resolution will not be disturbed by this Court where, as here, an independent examination of the record demonstrates it is supported by competent evidence.

As with all custody and visitation orders, this one is temporary in nature. Friedman v. Friedman, 224 Pa.Super. 530, 307 A.2d 292 (1973). Visitation rights are within the supervision of the courts on a continuing basis. Rozanski, 206 Pa.Super. at 401-02, 213 A.2d at 157. Should it develop that the expanded visits with Appellee have an adverse effect on the children’s welfare, the right to such visits may be withdrawn. Id., 206 Pa.Super. at 401 04, 213 A.2d at 157-58 (1965).

Order affirmed.

PRICE, J., did not participate in the consideration or decision of this case.

      . At the time of the hearing, Yvette and Ashleigh were 11 and 3 years old, respectively.


text:
    435 A.2d 221
    Rose P. STUMP v. Charles E. STUMP, Appellant.
    Superior Court of Pennsylvania.
    Argued June 22, 1981.
    Filed Sept. 25, 1981.

      Arthur L. Goldberg, Harrisburg, for appellant.
    Jeffrey A. Ernico, Harrisburg, for appellee.
    Before PRICE, JOHNSON and SHERTZ, JJ.
   SHERTZ, Judge:

This is an appeal from an Order of support directing Appellant husband to make payment of seventy dollars per week, and of one-half the dividends on certain stock, to Appellee wife. Appellant contends that Appellee has failed to meet her burden of proving support entitlement inasmuch as no testimony justifying the entry of such an order was presented in the court below. We agree.

The pertinent facts of this case may be summarized briefly. Sometime after leaving the marital residence, Appellee filed for support. During a conference, held in the Dauphin County Domestic Relations Office, the parties were unable to arrive at an agreement as to support.

On May 5, 1980, the parties appeared before the Court of Common Pleas, but no testimony was taken. Instead, counsel for each side briefly stated his respective position. In so doing, counsel for Appellee indicated that “she (Appellee) left home under very strange circumstances” (N.T.4). The lower court, at that point, informed counsel it “did not want to get into that.” (N.T.4). At the conclusion of these “proceedings” the lower court entered the Order which is the subject of this appeal. In its opinion, the lower court stated that its decision was based solely upon the wage differential of the parties.

Appellant then filed this appeal contending Appellee had not proved any entitlement to support. Appellee countered that Appellant had waived any objection to the decision of the lower court by not filing exceptions pursuant to Rule 1038(d), Pa.R.Civ.P.

It is well-settled that “a wife seeking support has the burden of establishing that her husband consented to the separation or that her husband’s conduct justified her leaving the marital home.” Kurpiewski v. Kurpiewski, 254 Pa.Super. 489, 386 A.2d 55 (1978).

In the instant case there is no testimony which addresses, or seeks to justify or to explain, why Appellee left the marital residence. Consequently there is no record available which can demonstrate whether support is in order. In fact, the lower court refused to consider this issue. Rather, the court chose to enter an Order based on “the wage differential alone,” (Trial Court Slip Op. at 1), which differential, however, was never, in fact, established.

In matters of support:

Our appellate review of the record will extend only to a determination of whether there is sufficient evidence to sustain the Order entered. “It has been repeatedly stated that, in a support proceeding, we will not interfere with the determination of the lower court unless there has been a clear abuse of discretion.”

Loosley v. Loosley, 236 Pa.Super. 389, 345 A.2d 721 (1975) (citation omitted). Since the record here is devoid of any evidence to sustain the Order, its entry constituted a clear abuse of discretion.

We reject Appellee’s contention that Appellant waived any and all objections to the Order by failing to file exceptions thereto pursuant to Rule 1038(d), Pa.R.Civ.P. The Rule, by its very terms, applies to actions which have been tried without a jury:

Except as otherwise provided in this rule, the trial of an action ... by a judge sitting without a jury, shall be conducted as nearly as may be as a trial by jury is conducted and the parties shall have like rights and privileges .. .

Rule 1038(a), Pa.R.Civ.P. Although the Rule does not delineate the precise procedure to be followed in non-jury trials, one noted commentary on Pennsylvania practice, in explaining the Rule, has stated:

. . . the trial will open with an opening statement by counsel and the customary colloquy between counsel and the court about the pleadings, the issues, the pretrial order if any, and the possibility of stipulations. Witnesses will be called and examined, documents will be introduced, objections will be noted of record, and a stenographic record will be kept, just as in the case of jury trial.

2 Goodrich Amram 2d § 1038(a): 1, See also, Cherniak v. Prudential Ins. Co. of America, 339 Pa. 73, 14 A.2d 334 (1940) (trial defined); Lloyd & Elliot v. Lang, 118 Pa.Super. 190, 180 A. 74 (1935) (judge, trying a case without a jury, cannot make finding of fact which jury would not be permitted to make); Trans World Airlines, Inc. v. City of Philadelphia, Commission of Human Relations, 44 Pa.Cmwlth. 341, 403 A.2d 1057 (1979) (resolution of a matter before a judicial tribunal requires ascertainment of the facts, of the applicable law, and application of law to the facts). In the instant case there was no trial. Consequently, Rule 1038 is inapplicable.

Order vacated and case remanded with directions that the lower court hold an evidentiary hearing to determine whether support is warranted and, if so, the amount thereof. This court does not retain jurisdiction in this matter.

PRICE, J., did not participate in the decision of this case.

      . At that time counsel for Appellant indicated that Appellee had left the marital residence without justification and, therefore, she was not entitled to support. Appellant was then informed liability for support was a matter which would have to be determined by the courts. (Brief for Appellant at 4- 5). When the matter came before the lower court, Appellant requested copies of the work sheets from the Domestic Relations conference, which sheets would have reflected his objections to support from the start. This request was denied (Brief for Appellant at 7).

      . In his brief, Appellant indicates this is standard practice in Dauphin County where “large numbers of cases are called . .. are quickly administered and disposed of, and it is only in the rarest of instances in which testimony is taken.” (Brief for Appellant at 14). Such a practice is unacceptable in those instances where, as here, the right to support is being disputed.

      . Until the promulgation of § 2043.35(f) of the Pennsylvania Civil Procedural Support Law, Pa.Stat.Ann. tit. 62, § 2043.35(f) (Purdon), which provided that an action for support be “a civil action in accordance with the Rules of Civil Procedure,” the filing of exceptions to a support order was improper. See e. g., Commonwealth v. McAlaine, 193 Pa.Super. 27, 163 A.2d 711 (1960). Most recently, the Supreme Court of Pennsylvania, in adopting rules governing actions for support, has done away with the filing of exceptions in matters of support. See, Rule 1910.11(k) and Comment, Rules of Civil Procedure Governing Actions for Support (effective 7/23/81).

      . We note that in Paul v. Paul, 281 Pa.Super. 201, 421 A.2d 1219 (1980), this Court stated by way of dictum, [Commonwealth v. Almeida, 362 Pa. 596, 603, 68 A.2d 595, 599 (1949)], that the filing of exceptions to a support order is necessary. In Paul, however, the Court had before it an evidentiary record which had been developed at several hearings.


author: WIEAND, Judge: SHERTZ, Judge,

text:
    435 A.2d 223
    COMMONWEALTH of Pennsylvania v. Frank JONES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Sept. 25, 1981.

      Joseph M. Casey, Assistant Public Defender, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, SHERTZ and WIEAND, JJ.
   WIEAND, Judge:

Frank Jones, a juvenile, was adjudicated delinquent on a charge of burglary. On appeal he contends that the evidence was insufficient to support the court’s finding. We agree.

The evidence produced at the delinquency hearing disclosed that at approximately five o’clock on the morning of November 29, 1978, Police Officer Charles Tapper received a radio call instructing him to proceed to a grocery store on the corner of 18th and Fontain Streets in Philadelphia. Because another patrol car was approaching from the direction of Fontain Street, Officer Tapper proceeded to the scene by way of Page Street. He observed appellant emerging from an alley at the end of the block behind the grocery store. The officer testified that appellant came tearing out of the alley and started up Page Street. Appellant then changed direction, cutting across a lot toward Norris Street, and headed toward the rear of his home, where he was apprehended. Officer Tapper took appellant to the grocery store, where it was discovered that a window grating and pane had been broken. Several cartons containing eggs were found in the alley behind the grocery store. Officer Tapper testified that he saw no one else either in the alley or on the street. The prosecutor and appellant’s counsel stipulated that the grocery store owner, if called, would have testified that his store, at 2027 North 18th Street, Philadelphia, had been entered without his permission and that forty-five dollar’s worth of eggs had been taken.

The test for determining the sufficiency of the evidence to support a conviction is “whether accepting as true all the evidence, together with all reasonable inferences therefrom upon which the [factfinder] could properly have based its verdict, such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt.” Commonwealth v. Ilgenfritz, 466 Pa. 345, 348, 353 A.2d 387, 389 (1976), quoting from Commonwealth v. Carbonetto, 455 Pa. 93, 95, 314 A.2d 304, 305 (1974); Commonwealth v. Green, 464 Pa. 557, 565, 347 A.2d 682, 686 (1975). In addition, we are to consider the evidence in the light most favorable to the Commonwealth as the verdict winner. Commonwealth v. Ilgenfritz, supra; Commonwealth v. Green, supra; Commonwealth v. Rife, 454 Pa. 506, 509, 312 A.2d 406, 408 (1973).

Circumstantial evidence alone may be sufficient to establish guilt beyond a reasonable doubt. Commonwealth v. Lewis, 472 Pa. 235, 243, 372 A.2d 399, 403 (1977); Commonwealth v. Simpson, 436 Pa. 459, 463, 260 A.2d 751, 754 (1970). In such case, however, “ ‘the theme of guilt must flow from the facts and circumstances proved, and be consistent with them all.’ Commonwealth v. Clinton, 391 Pa. 212, 218, 137 A.2d 463, 466 (1958). If the conviction is based wholly on .. . suspicion and conjecture, it cannot stand. Commonwealth v. Townsend, 428 Pa. 281, 286-87, 237 A.2d 192, 195 (1968); Commonwealth v. Garrett, 423 Pa. 8,12, 222 A.2d 902, 905 (1966); Commonwealth v. Deyell, 399 Pa. 563, 567, 160 A.2d 448, 450 (1960); and, Commonwealth v. Clinton, supra.” Commonwealth v. Lewis, supra, quoting from Commonwealth v. Simpson, supra 436 Pa. at 464, 260 A.2d at 754.

It is well established that the mere presence of a person at the scene of a crime is insufficient to prove his involvement. Commonwealth v. Goodman, 465 Pa. 367, 370-71, 350 A.2d 810, 811-12 (1976); Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973); Commonwealth v. Stanley, 453 Pa. 467, 471, 309 A.2d 408, 411 (1973); Commonwealth v. Garrett, 423 Pa. 8, 13, 222 A.2d 902, 905 (1966). Presence at the scene is not rendered sufficient by additional evidence of flight from the general location where the crime was committed. Commonwealth v. Goodman, supra; Commonwealth v. Roscioli, supra; Commonwealth v. Keller, 249 Pa.Super. 384, 388-89, 378 A.2d 347, 349-50 (1977). Such proof “is as consistent with fear as with guilt [and] does not convert presence into proof of guilt.” Commonwealth v. Goodman, supra 465 Pa. at 371, 350 A.2d at 811. It “is as consistent with the inference that appellant innocently happened upon the scene and fled out of fear as it is with the inference that appellant was a participant in the burglary.” Id., 465 Pa. at 371, 350 A.2d at 812. See also: Commonwealth v. Keller, supra.

In the instant case, appellant was not observed at the scene of the crime. Instead, he was observed for the first time as he was running from an alley, approximately one block from the site of the burglarized store. These facts are even less persuasive than those in Commonwealth v. Roscioli, supra, and Commonwealth v. Goodman, supra. In Roscioli, the Court held that defendant’s presence at a telephone booth near a restaurant window, the pane of which had been removed intact by scraping away the connecting putty and through which persons had apparently entered to commit a burglary, was too weak to connect defendant with the commission of the crime. In Goodman, evidence revealed the defendant’s presence at and flight from the actual building being burglarized at the approximate time of the crime’s occurrence. This was held to be insufficient to sustain a finding of guilt.

The Commonwealth seeks to distinguish Goodman and Roscioli on the grounds that in those cases other persons had been observed at the scenes of the crimes and could possibly have perpetrated the offenses without the defendant’s complicity. By contrast, the Commonwealth points to the testimony of Officer Tapper, who testified in the instant case that he saw no one else in the street when he witnessed the appellant emerge onto Page Street from the alley behind the store. From this additional fact, plus the relatively early hour of the incident, i.e., 5:10 A.M., the Commonwealth contends that a valid inference can be drawn that appellant committed the burglary.

The vantage point from which Officer Tapper made his observation was Page Street, however, and his testimony established only that no other persons were present on Page Street. There was no evidence whatsoever to show either the presence or absence of other persons at the store itself or at any point on Fontain or other neighboring streets. The officer who approached the Fontain Street entrance to the alley and who, presumably, had an opportunity to witness events in the immediate area of the store, did not testify. Consequently, the record does not support the Commonwealth’s argument that appellant was the only person in the area of the burglarized store. The relatively early hour of the day, although not wholly lacking in probative value, was insufficient to transform the Commonwealth’s suspicious circumstances into proof beyond a reasonable doubt.

In short, the Commonwealth’s evidence showed merely that the juvenile appellant, at an early morning hour, was observed running from an alley which led to the rear of a store which had been burglarized. This was insufficient to prove that he was the burglar.

The adjudication of delinquency, therefore, is reversed, and appellant is discharged.

SHERTZ, J., files a dissenting statement.

SHERTZ, Judge,

dissenting:

This case illustrates, rather clearly, the validity of the observation by Mr. Justice Pomeroy, that the line between the requisite degree of persuasion and impermissible speculation is, admittedly, sometimes difficult to draw. Commonwealth v. Cimaszewski, 447 Pa. 141, 143-44, 288 A.2d 805, 806 (1972). I am satisfied that the evidence was sufficient to prove that appellant committed the burglary. Commonwealth v. Eddington, 255 Pa.Super. 25, 386 A.2d 117 (1978); In the Interest of Hector Gonzalez, 255 Pa.Super. 217, 386 A.2d 586 (1978). Accordingly, I would affirm the adjudication of delinquency.

      . It is significant that the radio instructions did not contain a statement that a burglary was then in progress at the grocery store. Cf. Commonwealth v. Stanley, 453 Pa. 467, 472 73, 309 A.2d 408, 412 (1973).

      . The cases relied upon by the Commonwealth contain circumstances in addition to presence at the scene of a crime or flight therefrom which permitted an inference that the defendant was also a perpetrator of the criminal act. See: Commonwealth v. Cimaszewski, 447 Pa. 141, 288 A.2d 805 (1972); In the Interest of Hector Gonzalez, 255 Pa.Super. 217, 386 A.2d 586 (1978); Commonwealth v. Eddington, 255 Pa.Super. 25, 386 A.2d 117 (1978); Commonwealth v. Fontana, 230 Pa.Super. 463, 327 A.2d 154 (1974); Commonwealth v. Herman, 227 Pa. Super. 326, 323 A.2d 228 (1974).


author: WIEAND, Judge:

text:
    435 A.2d 226
    George YANDRICH, Administrator of the Estate of George N. Yandrich, Deceased, Appellant v. Martin J. RADIC.
    Superior Court of Pennsylvania.
    Argued March 25, 1981.
    Filed Sept. 25, 1981.
    Petition for Allowance of Appeal Granted Dec. 7, 1981.

      Richard C. Angino, Harrisburg, for appellant.
    Bernadette Barattini, Harrisburg, for appellee.
    Before PRICE, WIEAND and LIPEZ, JJ.
   WIEAND, Judge:

On June 26, 1977, while riding his bicycle on Chambers Hill Road in Harrisburg, George N. Yandrich was struck from the rear by an automobile owned and operated by Martin J. Radie, the appellee. As a result of the collision, Yandrich sustained injuries which eventually led to his death. The administrator of his estate, the appellant herein, instituted a trespass action alleging appellee’s negligence as the cause of Yandrich’s death. The case was tried before a jury which found appellee’s negligence to be 21% and that of appellant’s decedent to be 79%. Appellant’s motions for judgment n. o. v. and, alternatively, for a new trial were denied, and judgment was entered in favor of appellee. This appeal followed.

Appellant contends that there was a total absence of evidence from which contributory negligence on the part of the decedent could have been found. He thus contends that the issue of contributory negligence should be decided in the decedent’s favor as a matter of law. It is well established, however, that a party’s negligence must be submitted to the jury unless there is no evidence from which an affirmative finding could be made without resort to speculation. Greet v. Arned Corp., 412 Pa. 292, 194 A.2d 343 (1963); Miller v. Montgomery, 397 Pa. 94, 152 A.2d 757 (1959). “[WJhere there is any evidence which alone would j ustify an inference of the disputed fact, it must go to the jury, no matter how strong or persuasive may be the countervailing proof.” (Emphasis in original.) Smith v. Port Authority Transit, 257 Pa.Super. 66, 71, 390 A.2d 249, 251 (1978), quoting from Heffernan v. Rosser, 419 Pa. 550, 554-5, 215 A.2d 655, 657 (1966). See also: Polinelli v. Union Supply Co., 403 Pa. 547, 552, 170 A.2d 351, 354 (1961).

In the instant case, appellee testified to facts from which the decedent’s contributing negligence could properly be inferred. Appellee testified that he had observed the decedent proceeding along the berm of the highway on his bicycle in a straight and steady fashion. He stated that he continued to watch the roadway as he overtook the bicycle and that, at a point about ten or fifteen feet from the point of the ultimate collision, the bicycle suddenly appeared on the road in front of his automobile. The suddenness of its appearance, he said, prevented his reacting quickly enough to avoid the accident. Appellee testified that because he had not kept his vision fixed exclusively on the bicycle, he had not seen the decedent move from the berm to the roadway and could not describe the specific physical movements of the decedent which caused the bicycle to move onto the road.

The absence of a description of the decedent’s actual movement on his bicycle and the possible causes which brought the bicycle onto the road in front of appellee’s car did not require that the jury resort to speculation in finding decedent contributorily negligent. The evidence that the decedent’s bicycle, which had been observed travelling steadily ahead on the berm of a highway, suddenly appeared directly in front of an automobile approaching on that highway was circumstantial evidence sufficient, if believed by the jury, to permit an inference of negligence by the decedent.

Appellant also contends that the jury’s apportionment of negligence between the actors was contrary to the weight of the evidence. Unlike appellate review of the trial court’s denial of a motion for judgment n. o. v., in which the evidence must be viewed in the light most favorable to the verdict winner, review of the court’s denial of a motion for new trial requires that we consider all the evidence. Abbott v. Steel City Piping Co., 437 Pa. 412, 415, 263 A.2d 881, 883 (1970); Ditz v. Marshall, 259 Pa.Super. 31, 35, 393 A.2d 701, 703 (1978). The grant of a new trial is proper only when the jury’s verdict is so contrary to the weight of the evidence as to shock one’s sense of justice and make a new trial imperative in order that right may be given another opportunity to prevail. Burrell v. Philadelphia Electric Co., et al., 438 Pa. 286, 289, 265 A.2d 516, 518 (1970); Peair v. Home Association of Enola Legion No. 751, 287 Pa.Super. 380, 430 A.2d 665 (1981); Ditz v. Marshall, supra. The trial judge, who is present at the offering of the testimony, has broad discretion with regard to ordering a new trial, and his decision will not be reversed on appeal unless it appears that he has acted capriciously or has palpably abused his discretion. Burrell v. Philadelphia Electric Co., et al., supra, 438 Pa. at 288-9, 265 A.2d at 517; Austin v. Ridge, 435 Pa. 1, 4, 255 A.2d 123, 124 (1969); Ditz v. Marshall, supra. A new trial should not ordinarily be granted where the evidence is conflicting and the jury could have found for either party. Carroll v. Pittsburgh, 368 Pa. 436, 445-6, 84 A.2d 505, 509 (1951).

In the instant case, we are unable to find that the trial court abused its discretion. Appellee’s testimony, if believed, disclosed that he was driving within the established speed limit and had observed decedent’s bicycle moving along the berm of the highway in a manner and place of relative safety. It was only when the bicycle suddenly moved onto the highway that a perilous situation was created. The extent to which appellant’s decedent was negligent in creating this danger and the degree of negligence which prevented appellant from seeing the decedent and avoiding a collision were issues uniquely for the jury.

Finally, appellant argues that the trial court erroneously instructed the jury regarding the presumption that the decedent had been exercising due care for his own safety at the time of the accident. Specifically, the trial court charged the jury as follows:

“The law presumes that at the time of the accident causing George Yandrich’s death he was using due care for his own safety. As has been indicated, this is probably founded on the desire for self-preservation for the individual to avoid pain; but, this presumption is not evidence and does not take the place of evidence. If you find by a preponderance of the evidence, as I have described it to you, that the decedent was not exercising such care you will so state in your verdict as I am going to later discuss it with you.”

“When a person is killed in an accident, there is a presumption arising from the general knowledge of the strength of the instinct of self-preservation and the natural desire to avoid pain and injury to one’s self that the deceased at the time of the accident was exercising due care.” Rowles v. Evanuik, 350 Pa. 64, 69, 38 A.2d 255, 257 (1944), quoting from Morin v. Kreidt, 310 Pa. 90, 97, 164 A. 799, 800-01 (1933). See also: Moore v. Esso Standard Oil Co. of Pennsylvania, 364 Pa. 343, 345, 72 A.2d 117, 120 (1950), aff’g. on opinion of lower court; Condo v. Caris, 255 Pa.Super. 16, 18, 386 A.2d 112, 114 (1978).

Appellant agrees that this presumption of due care has no evidentiary value to prove another party’s negligence. He argues, however, that the presumption does have probative force in determining the absence of negligence on the part of the deceased. This argument is not persuasive.

The sole function of the presumption is to place the burden of proving a decedent’s negligence on the party asserting that proposition. Watkins v. Prudential Insurance Co., 315 Pa. 497, 500-01, 173 A. 644, 647 (1934). See also: 9 Wigmore, Evidence § 2491 (Chadbourn rev. 1981); McCormick, Evidence §§ 342-45 (2nd ed. 1972); Susser v. Wiley, 350 Pa. 427, 430-31, 39 A.2d 616, 618 (1944); Condo v. Caris, supra, 255 Pa.Super. at 18-19, 386 A.2d at 113-114; Dilliplaine v. Lehigh Valley Trust Co., 223 Pa.Super. 245, 247, 297 A.2d 826, 827 (1972) (concurring opinion by Hoffman, J.), aff’d. on other grounds, 457 Pa. 255, 322 A.2d 114 (1974). The presumption has no evidentiary value on behalf of any party. See: Allison v. Snelling & Snelling; Inc., 425 Pa. 519, 525, 229 A.2d 861, 864 (1967); Richmond v. A. F. of L. Medical Service Plan of Philadelphia, 421 Pa. 269, 271, 218 A.2d 303, 304 (1966); Watkins v. Prudential Insurance Co., supra, 315 Pa. at 503, 173 A. at 647. It is merely a rule of law which states that, unless evidence is presented to persuade the jury of the contrary, the presumption will stand. Watkins v. Prudential Insurance Co., supra; McCormick, Evidence, supra. See also: Keasey v. Pittsburgh & Lake Erie Railroad Co., 404 Pa. 63, 68-70, 170 A.2d 328, 331-32 (1961); Waugh v. Commonwealth, 394 Pa. 166, 173-74, 146 A.2d 297, 302 (1958).

The presumption of due. care, contrary to the erroneous dicta appearing in some appellate decisions, is a presumption of law, not a presumption of fact. Its effect is merely to invoke a rule of law compelling the jury to conclude that a decedent exercised due care in the absence of evidence to the contrary. Such a presumption is merely the converse of charging the jury that the party asserting the negligence of the decedent has the burden of proving it. The requirement that a jury be instructed concerning this presumption of due care may well have outlived its usefulness. In today’s trials, particularly since the statutory enactment of principles of comparative negligence, an instruction that there is a separate presumption of due care which arises from the fact of death can only serve to confuse the jury and becloud the issues. It is enough that a jury be instructed properly and adequately regarding the burdens of proving negligence and contributory negligence. See: Dilliplaine v. Lehigh Valley Trust Co., supra, (concurring opinion by Hoffman, J.).

In any event, the presumption that a decedent has exercised due care for his or her own safety is not a presumption of fact. The fact of death does not permit a logical, evidentiary inference that the person who is now dead was without fault. The presumption, in brief, “is not evidence,” and the trial court was correct when it so instructed the jury.

Our review of the record is persuasive that the case was well tried; and we perceive no valid reason for setting aside or otherwise disturbing the verdict of the jury.

The judgment is affirmed.

PRICE, J., did not participate in the consideration or decision of this case.

      . In Keasey v. Pittsburgh & Lake Erie Railroad Co., 404 Pa. 63, 69, 170 A.2d 328, 331 (1961), the Court descriptively said: “Every rule that one can conceive which is designed to protect and preserve human life is presumed to have been respected by the decedent because although it is inevitable that everyone must eventually turn in his bat and glove, no one actually wants to hasten the end of the ball game.”

      . Noting the general confusion regarding the legal concept of presumptions and the resulting frequent misuse of the term, the Supreme Court, in Watkins v. Prudential Insurance Co., 315 Pa. 497, 500-01, 173 A. 644, 646-67 (1934), set out a clear and concise description of the concept and function of presumptions as follows:
      “Considerable confusion appears in judicial opinions as to the nature of presumptions and their function in the administration of justice. They are not evidence and should not be substituted for evidence. Presumptions are generally grouped into two major classes: (1) Of law; and (2) of fact. The former usually have the force of legal maxims and become rules of law, with definite procedural consequences. As Mr. Justice Agnew said in Tanner v. Hughes and Kincaid, 53 Pa. 289: ‘A legal presumption is the conclusion of the law itself of the existence of one fact from others in proof, and is binding on the jury, prima facie till disproved, or conclusively, just as the law adopts the one or the other as the effect of proof.’ Justice Agnew also refers to the other kind of presumption as merely ‘a natural probability,’ i. e., ‘an inference of fact of the probability.’ Wigmore on Evidence (2d Ed.) vol. 5, § 2491, says: ‘The distinction between presumptions “of law” and presumptions “of fact” is in truth the difference between things that are in reality presumptions and things that are not presumptions at all. A presumption is in its characteristic feature a rule of law laid down by the judge, and attaching to one evidentiary fact certain procedural consequences as to the duty of production of other evidence by the opponent. It is based, in policy, upon the probative strength, as a matter of reasoning and inference, of the evidentiary fact; but the presumption is not the fact itself, nor the inference itself, but the legal consequence attached to it. * * * A "presumption of fact,” in the loose sense, is merely an improper term for the rational potency, or probative value, of the evidentiary fact, regarded as not having this necessary legal consequence. “They are, in truth, but mere arguments,” and “depend upon their own natural force and efficacy in generating belief or conviction in the mind.” (Greenleaf, Evidence, sec. 44). They have no significance so far as affects the duty of one or the other party to produce evidence, because there is no rule of law attached to them, and the jury may give to them whatever force or weight it thinks best.... [I]t must be kept in mind that the peculiar effect of a presumption “of law” (that is, the real presumption) is merely to invoke a rule of law compelling the jury to reach the conclusion in the absence of evidence to the contrary from the opponent.’ ”


author: MONTGOMERY, Judge:

text:
    435 A.2d 231
    COMMONWEALTH of Pennsylvania v. James Calvin PEELE, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 6, 1980.
    Filed Sept. 25, 1981.

      Bruce D. Foreman, Harrisburg, for appellant.
    Marion E. MacIntyre, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
    Before CERCONE, President Judge, and WATKINS and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

Appellant takes this appeal from the lower court’s denial of his Post Conviction Hearing Act, hereinafter PCHA, petition without a hearing. For the reasons set forth below, we find that the lower court erred in summarily dismissing appellant’s petition, and we reverse and remand for an evidentiary hearing.

Appellant pled guilty to two counts of False Alarms to Agencies of Public Safety on August 26, 1976. No petition to withdraw the plea was filed. He was sentenced to concurrent terms of imprisonment of nine months to three years. No direct appeal was taken. Appellant subsequently filed a PCHA petition alleging that his trial counsel was ineffective, and that his guilty plea was unlawfully induced by his counsel’s promise that he would be placed in an alcoholic treatment center, rather than in a correctional facility. The court below dismissed the petition without a hearing stating that the transcript of the guilty plea colloquy refuted the allegations.

We must first address the question of whether appellant has waived his claim for relief by failing to file a petition to withdraw his guilty plea and by failing to take a direct appeal. Commonwealth v. Strader, 262 Pa.Super. 166, 396 A.2d 697 (1978). In Strader, a case similar to the one at hand, we held that such a claim was not waived despite the failure to file a petition to withdraw or take a direct appeal as the PCHA petition alleged ineffective assistance of counsel with regard to the guilty plea. See also, Commonwealth v. McCall, 267 Pa.Super. 351, 406 A.2d 1077 (1979). Appellant, therefore, has not waived his claim for relief.

Appellant claims that his guilty plea was unlawfully induced by his counsel’s purported promise that he would not receive a prison sentence, but would be released into an alcoholic treatment center. As noted above, the lower court summarily dismissed this claim, finding that it was refuted by the record of the guilty plea colloquy. We find this to be error.

Even though the Commonwealth disputes appellant’s allegations, and even though appellant stated during the guilty pea colloquy that his plea was not induced, the record herein does not clearly refute his claim that the plea was unlawfully induced. Commonwealth v. McCall, supra, citing Commonwealth v. Strader, supra.

Finding the rational of the McCall and Strader decisions applicable to the instant case, we reverse the decision of the lower court summarily dismissing appellant’s PCHA petition, and remand for a hearing on that petition.

Reversed and remanded. This court does not retain jurisdiction.

      . Post Conviction Hearing Act, Act 1966, January 25, P.L. 1580 (1965), 19 P.S. § 1180-1 et seq. Repealed 1978, April 28, P.L. 202, No. 53, § 2(a) [1397], effective June 27, 1980, now implemented by Pa.R.Crim.P., Rules 1501 through 1506.

      . 18 Pa.C.S.A. § 4905, 1972, Dec. 6, P.L. 1482, No. 334, § 1, effective June 6, 1973.


author: PER CURIAM:

text:
    435 A.2d 232
    COMMONWEALTH of Pennsylvania, v. Michael Wayne HARTMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 10, 1980.
    Filed Sept. 25, 1981.
    Norman D. Callan, Assistant Public Defender, Hollidaysburg, for appellant.
    Jolene M. Grubb, Assistant District Attorney, Hollidaysburg, for Commonwealth, appellee.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   PER CURIAM:

On September 17, 1979, appellant pleaded guilty to charges of Retail Theft (misdemeanor, second degree) and Terroristic Threats. A companion charge of Recklessly Endangering Another was nol-prossed. On February 5, 1980, after procurement of a pre-sentence report, and fairly lengthy discussions of the case by counsel for both sides, Judge John A. Cherry, imposed sentences of 6 months to 12 months on the charge of retail theft and 5V2 months to 5 years on the charge of terroristic threats, to run consecutively. The court imposed a period of probation to run consecutively to the imprisonment, conditioned further that appellant refrain entirely from the use of any alcoholic beverage during the period of probation.

On this appeal appellant argues that the sentence was “excessive and invalid in that the court relied on impermissible factors.” No petition for reconsideration of the sentence has been filed. Appellant argues a petition is unnecessary where it is “unlikely that the lower court would desire to change the sentence.” We disagree.

This Court may not review the lower court’s imposition of sentence unless such court has first had an opportunity to reconsider its sentence. Commonwealth v. Graves, 275 Pa. Super. 557, 419 A.2d 41 (1980); Commonwealth v. Howard, 258 Pa.Super. 440, 392 A.2d 875 (1978); and Commonwealth v. Brunner, 243 Pa.Super. 55, 369 A.2d 446 (1976).

Appeal quashed.