author: POPOVICH, Judge: BECK, Judge, JOHNSON, Judge,

text:
    445 A.2d 162
    In the Matter of the ADOPTION of J. S. H. Appeal of: T. V. H.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1981.
    Filed April 30, 1982.
    Petition for Allowance of Appeal Denied Oct. 18, 1982.

      Melvin Toran, Erie, for appellant.
    William Dopierala, Erie, for participating party.
    Before BECK, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

This appeal is from the final decree of the Court of Common Pleas of Erie County, Orphans’ Court Division, involuntarily terminating the parental rights of appellant, T. V. H., in her natural son, J. S. H.

On June 26, 1980, a petition was filed in the Court of Common Pleas of Erie County, Orphans’ Court Division, by the Children’s Services of Erie County (Children’s Services), appellee herein, seeking the involuntary termination of the parental rights of appellant with respect to her son, J. S. H. On October 6, 1980, a hearing was held and the Orphans’ Court entered a decree involuntarily terminating appellant’s parental rights under § 311(1) and § 311(2) of the Adoption Act. 1 P.S. § 311 (Supp.1976) (current version at 23 Pa.C. S.A. § 2511(a)(l)-(2) (Pocket Part 1981-82)). After exceptions were filed and orally argued, the Orphans’ Court ordered that appellant be given another opportunity by Children’s Services to visit with her son to determine whether she properly could care for the child. On May 18, 1981, Children’s Services filed a motion to terminate visitation. A second hearing was held, and, on June 10, 1981, the Orphans’ Court entered a final decree dismissing appellant’s exceptions and reinstating the decree of October 6, 1980, thereby terminating appellant’s parental rights. This direct appeal followed.

On appeal, appellant first contends that the evidence was insufficient to establish either that she failed or refused to perform her parental duties for a period of at least six months or that conditions and causes of her incapacity, neglect or refusal cannot or will not be remedied. Second, appellant argues that the actions of Children’s Services thwarted her efforts to perform parental duties.

For the following reasons, we affirm the lower court’s decree.

To begin with, our standard of review in cases of involuntary termination of parental rights is limited to determining whether the lower court’s findings are supported by competent evidence. In re L.A.G., 490 Pa. 85, 415 A.2d 44 (1980). In making this determination, we are obliged to “[accept] as true all the evidence supporting the findings and all reasonable inferences therefrom.” In re D.K.W., 490 Pa. 134, 138, 415 A.2d 69, 71 (1980) (quoting In re William L., 477 Pa. 322, 340, 383 A.2d 1228, 1237, cert. denied, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978)). Absent an abuse of discretion, findings of the Orphans’ Court must be sustained even though the record could support an opposite result. In re D.K.W., supra; In re William L., supra. In applying this standard to the instant case, the record discloses the following facts:

J. S. H. was born on August 19, 1978. When he was six weeks old, J. S. H. was adjudicated a dependent child under the Juvenile Act because of his failure to thrive and appellant’s failure to provide adequate medical care. 42 Pa.C. S.A. § 6302 (1981 Pamphlet). The child was placed in the care and custody of Children’s Services and, at the age of seven weeks, was placed in the home of a foster mother with whom he currently resides.

The child has been diagnosed as having neurological disability, developmental delays, and physical problems. It also has been established that the child is not within normal intelligence limits and has a limited intellectual range and capacity.

Following a dispositional hearing on November 22, 1978, the Orphans’ Court ordered that the child remain under the care and supervision of Children’s Services for an indefinite period. Appellant was ordered to cooperate with mental health counseling and to participate in a child care program designed for mentally handicapped children and their parents. Appellant attended mental health counseling for a short period of time, failed to recognize any problems and subsequently ceased attending. Appellant did not participate in the court-ordered child care program. Although appellant maintained that the primary reason she did not attend child care classes was because she did not drive and could not obtain a ride, she also stated that at that time, she did not feel that she needed parental training. (N.T. 10/6/80, pp. 38, 43).

In March and October 1979, the court established conditions for the reunification of appellant and her son. Both court orders required appellant to attend various types of counseling and also provided for visitation. Appellant never attended the required parental training program. Moreover, although appellant was afforded liberal visiting privileges, she declined to take full advantage of them. During the visits that took place in appellant’s home, appellant often would not pay attention to the child. Overall, appellant’s contact with her son was limited because “[appellant] would be off doing other things, getting papers together or playing with the dogs or paying attention to her boyfriend . (N.T. 10/6/80, p. 11).

From January 18,. 1980, through April 7, 1980, appellant failed to contact Children’s Services or visit with her son. On April 7, 1980, appellant’s request for visitation was denied by Children’s Services because of her failure to follow through with counseling or contact the agency. Children’s Services then filed a. petition to terminate parental rights, and, following a hearing on October 6, 1980, the Orphans’ Court granted the requested relief. After exceptions were filed and argued, the court ordered that appellant be given another opportunity to visit with her son in order to determine whether she properly could care for the child.

Visitations held pursuant to this order took place in the child’s foster home. During the first three visits, appellant had no interaction with her son and spent a majority of the allotted time playing with one of the other foster children. Appellant’s infrequent attempts to interact with her son during subsequent visits were unsuccessful. The child responded to his mother with displays of erratic physical and emotional behavior. Specifically, the child would hide from and avoid appellant, and scream, kick, cry and pull out his hair when his mother attempted interaction. Appellant consistently failed to react to her son’s outbursts and often began to play with one of the other foster children. Despite the unsuccessful and unsettling nature of the visits, appellant informed the caseworker that all the visits were going well, that she and her son had a very good rapport, and that there were no problems.

In May, 1981, Children’s Services refused to allow appellant to visit with her son and filed a petition to terminate visitation. This action was prompted by complaints by the foster mother that the visits caused the child severe emotional and physical distress, including voiding and withdrawal symptoms, hyperventilating, bed-wetting, and sleeping difficulties. Following a hearing on appellee’s motion to terminate visitation, the Orphans’ Court dismissed appellant’s exceptions and entered a final decree reinstating its October 6, 1980 order terminating appellant’s parental rights.

Currently, appellant is unemployed, does not own or operate an automobile, and lives with her parents at Canadohta Lake, Union City. Appellant testified that she presently is attending parental classes but does not know how they are helping her other than that the classes “[teach her] more of how to . . . try to reason with [a] child.” (N.T. 6/3/81, p. 72).

Appellant now contends that the evidence was insufficient to support the Orphans’ Court finding that she failed or refused to perform her parental duties for a period of at least six months. We disagree.

Section 311(1) of the Adoption Act provides that parental rights may be terminated, following a hearing, when “[t]he parent by conduct continuing for a period of at least six months . . . has refused or failed to perform parental duties.” 1 P.S. § 311(1) (Supp.1976) (current version at 23 Pa.C.S.A. § 2511(a)(1) (Pocket Part 1981-82)).

In determining whether a parent has refused or failed to discharge parental duties we must remember that:

“Parental rights may not be preserved by complete indifference to the daily needs of a child or by merely waiting for some more suitable financial circumstance or convenient time for the performance of parental duties and responsibilities (while others adequately provide the child with her immediate and continuing physical and emotional needs). The parental obligation is a positive duty and requires affirmative performance which may not be delayed beyond the statutory period by the parent if the parental right is not to be forfeited.”
In re Adoption of Orwick, 464 Pa. 549, 554, 347 A.2d 677, 680 (1975) (quoting In re Smith’s Adoption, 412 Pa. 501, 505, 194 A.2d 919, 922 (1963)).

Moreover,

“Parenthood is not ... a mere biological status, or passive state of mind which claims and declines to relinquish ownership of the child. It is an active occupation, calling for constant affirmative demonstration of parental love, protection and concern ... [A parent] must exert himself to take and maintain a place of importance in the child’s life . . . . ” Appeal of Diane B., 456 Pa. 429, 433, 321 A.2d 618, 620 (1974).
In re L.A.G., 490 Pa. 85, 90, 415 A.2d 44, 47 (1980) (emphasis added).

Instantly, our review of the record reveals sufficient evidence to support the Orphans’ Court’s conclusion that appellant failed to perform parental duties for a period well in excess of the six month statutory minimum. Appellant’s last visit with her son, prior to the filing of the petition to involuntarily terminate her parental rights, was on January 18, 1980. Children’s Services’ petition was filed on June 26, 1980, a period of six months and eighteen days after appellant’s last visit. We have no doubt that appellant’s conduct during the six month statutory period and throughout the two and one half years that her son has been in foster care, demonstrates a failure to perform parental duties within the terms of § 311(1).

At the age of six weeks, appellant’s son was adjudicated dependent and placed in the custody of Children’s Services. The child was diagnosed as having neurological disability, developmental delays, and some physical problems. Despite an awareness of her son’s developmental lag, need for stimulation to promote learning, and physical problems, appellant, prior to the filing of the petition to terminate parental rights, made no attempt to undergo the counseling ordered by the Orphans’ Court. Since 1978, appellant has complied only superficially with Children’s Services’ guidelines and conditions for reunification. Moreover, appellant has not attempted to familiarize herself with the therapy necessary for the child’s developmental progress, thereby leaving the onus of this responsibility entirely to J. S. H.’s foster mother. From the time her son was adjudicated dependent, appellant, in effect, has demonstrated repeatedly a failure or refusal to recognize her son’s problems and an inability to attend to his special needs. Throughout this time, appellant’s only effort to discharge her parental duties has been to visit with her son periodically. See In re William L., 477 Pa. 322, 333, 383 A.2d 1228, 1233, cert. denied, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978) (parent has affirmative duty to work towards return of child placed in foster home).

When, as in the instant case, the evidence establishes that the parent has failed to perform her affirmative parental duties for a period in excess of six months, we must “examine the individual circumstances and any explanation offered by the parent to determine if that evidence, in light of the totality of the circumstances, clearly warrants permitting the involuntary termination.” In re Adoption of Orwick, 464 Pa. 549, 555, 347 A.2d 677, 680 (1975).

Here, appellant assigns her failure to undergo counseling to her inability to obtain rides to and from the counseling center located thirty miles from her home. The record indicates, however, that although appellant did not drive or own a car, appellant did not believe that parental counseling was necessary. Appellant stated that she attended individual counseling only because it was mandatory and that she had no problems that she felt required counseling.

Accordingly, we now cannot say that the Orphans’ Court inadequately weighed or improperly passed upon the totality of appellant’s circumstances. See In re Burns, 474 Pa. 615, 626, 379 A.2d 535, 541 (1977) (“A parent may not yield to every problem, but must act affirmatively, with good faith interest and effort, to maintain the parent-child relationship to the best of his or her ability, even in difficult circumstances.”).

Appellant next maintains that the evidence failed to establish that the conditions and causes of her incapacity, neglect or refusal to care for the child cannot or will not be remedied. Again, we disagree.

Under section 311(2) of the Adoption Act, involuntary termination of parental rights may occur only upon a compelling showing of three factors:

“(1) repeated and continued incapacity, abuse, neglect or refusal must be shown;
(2) such incapacity, abuse, neglect or refusal must be shown to have caused the child to be without essential parental care, control or subsistence; and
(3) it must be shown that the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied.” In re Adoption of R.I., 468 Pa. 287, 293, 361 A.2d 294, 298 (1976) (quoting In re Geiger, 459 Pa. 636, 639, 331 A.2d 172, 174 (1975)).

The facts of this case offer sufficient support for the Orphans’ Court’s conclusion that “[appellant] does not have the capability and cannot acquire the capability to cope with and handle this particular child . . . . ” (Orphans’ Court Opinion at 4, 6/10/81, Record No. 8).

The child’s physical condition at the time he was adjudicated dependent and removed from appellant compels a conclusion that he was exposed to “repeated and continued” parental neglect or incapacity to provide essential care and subsistence. The record also supports the finding that even though this child requires special care and attention, appellant has refused to learn how to attend to his special needs. Instantly, appellant’s refusal to attend counseling, her inability to recognize the problems that surfaced during visitation, and her failure to comply with Children’s Services’ guidelines and conditions for reunification reveal her lack of ability and maturity to provide her son with essential parental care. Moreover, because appellant has failed to provide essentia] parental pare for a period in excess of three years, the Orphans’ Court permissibly could infer that appellant is not able to remedy the conditions and causes of her incapacity-

Finally, appellant contends that Children’s Services acted to thwart her efforts to remain a positive factor in her son’s life. We cannot agree with this contention.

For the past three years, Children’s Services has developed and extensively set forth guidelines and conditions for appellant’s reunification with her son. Following each visitation, appellant’s caseworker talked to appellant and advised her how to improve the quality of her visits. Children’s Services also provided appellant with the opportunity to obtain counseling for both herself and her son. See In re Adoption of I. L. G, 492 Pa. 507, 424 A.2d 1306 (1981) (child care agency has no duty to provide rehabilitative services or to disclose possible consequences of failure to perform parental duties). Appellant, on the other hand, did not take advantage of the agency’s facilities, yielded to every problem, and failed to exert herself in maintaining a place of importance in her child’s life. Hence, Children’s Services did not thwart any attempt by appellant to reunite with her son.

Accordingly, the Order is affirmed.

BECK, J., files concurring opinion.

JOHNSON, J., files dissenting opinion.

BECK, Judge,

concurring:

I concur but feel constrained to address myself to appellant’s argument that Children’s Services thwarted her effort to perform parental duties during the requisite six month period. See 1 P.S. § 311(1) (current version at 23 Pa.C.S.A. § 2511(a)(1)). The lead opinion notes that appellant did seek to visit her son one time during that period, but that she was refused visitation because of her failure to follow through with counselling.

The Pennsylvania Supreme Court has found that parental rights are not necessarily terminated even where there was no direct contact between parent and child for the statutory six month period. Such failure was excused where the parent exhibited persistence in the face of obstacles to that contact.

In In re Adoption of J. A. B., 487 Pa. 79, 408 A.2d 1363 (1979), the mother testified that she sought to visit her son many times, but the social services agency thwarted her overtures. The parents argued that their failure to perform parental duties resulted directly from the intransigience of the agency. The Supreme Court excused the period of no contact:

The evidence in this case establishes that the agency discouraged the parents from maintaining contact with J. by averting their inquiries and advising them to wait until their other problems were under control before attempting to re-establish their relationship with him. It is apparent from the record that the agency viewed J. as the family’s troublemaker and scapegoat and had determined it was in the best interests of both family and child that he not be returned.

Id., 487 Pa. at 90, 408 A.2d at 1368.

The Supreme Court in Adoption of J.A.B. applied a “totality of the circumstances” test in reversing a lower court decree terminating parental rights:

The court’s finding of an absence of direct contact between J. and his parents for a period in excess of six months is not disputed. However, this fact alone will not support a determination of failure to perform parental duties where the totality of the circumstances, including evidence of the parents’ individual circumstances and any explanation offered by them, does not warrant termination of their rights.

Id., 487 Pa. at 89, 408 A.2d at 1368.

Similarly, in In re D. J. Y., 487 Pa. 125, 408 A.2d 1387 (1979), the natural mother of D. J. Y. attempted to contact her son but was thwarted in that attempt by the natural father and paternal grandparents. Again, although the orphans’ court found the requisite six month period, it excused the mother’s lack of contact, declined to terminate her parental rights, and dismissed the grandparents’ petition to adopt their grandson. The Supreme Court cited In re Burns, 474 Pa. 615, 625, 379 A.2d 535, 540 (1977), in excusing the mother’s failure to contact D. J. Y.:

“the question whether a parent has failed or refused to perform parental duties must be analyzed in relation to the particular circumstances of the case. A finding of abandonment, . . . will not be predicated upon parental conduct which is reasonably explained or which resulted from circumstances beyond the parent’s control. It may only result when a parent has failed to utilize all available resources to preserve the parental relationship.” (citations omitted)

Id., 487 Pa. at 130-131, 408 A.2d at 1390.

In Adoption of S.H., 476 Pa. 608, 383 A.2d 529 (1978), the orphans’ court found that under a “totality of the circumstances” test the father’s failure to contact his child was excused because despite his persistence he had been thwarted by his former wife, her new husband and her mother:

The father’s extended attempts to locate his son after his wife left him, to persuade the mother to permit visitation, to send letters and gifts from prison to his son, to arrange for visitation through his new fiancee . . . demonstrate the “reasonable firmness ‘in declining to yield to obstacles . . .’” which will preserve parental rights. Adoption of McCray, 460 Pa. [210] at 216, 331 A.2d [652] at 655.

Id., 476 Pa. at 615, 383 A.2d at 533.

It is clear from the preceding authority that to safeguard his or her parental rights, a parent may not acquiesce in obstructive behavior by either the social service agency or the custodial parent. He or she must exhibit “reasonable firmness” in refusing to yield to such obstacles. Accord In re M.A.K., 489 Pa. 597, 414 A.2d 1052 (1980).

As the lead opinion notes, appellant attempted only once during the six month period to visit her son. That request was denied because she had failed to comply with the requirements established for her by the social service agency. She did not persist in her effort to see her child and thus her behavior is distinguishable from the above cases where failure to contact the child for a period of six months was excused.

In the instant case, the agency fulfilled its responsibility in seeking to reunite mother and son; appellant decidedly did not. I therefore agree that the order of the lower court should be affirmed.

JOHNSON, Judge,

dissenting:

This is an appeal by the natural mother from a Final Decree involuntarily terminating her parental rights in her three-year old son. A bench decree had been issued on October 6, 1980 following a hearing on the petition of Children’s Services of Erie County (CSEC) to terminate her rights. Exceptions to the decree were filed and argument thereon was held on or about February 19, 1981. At that time, the chancellor directed CSEC to give the mother reasonable opportunity to visit her son and deferred final action on the petition. On May 18, 1981, the chancellor terminated the reinstituted visitation pending a further hearing, acting upon an unverified Motion to Terminate Visitation presented by CSEC. On June 3, 1981, a hearing was held and, on June 10, 1981, the chancellor entered his Final Decree from which this appeal is brought.

The chancellor based his initial decree on his finding that, as to the mother:

a) she, by conduct which continued for a period of at least six (6) months has refused and failed to perform parental duties;

and

b) the repeated and continued incapacity, neglect or refusal of the parent has caused such child to be without essential parental care, control or subsistence necessary for the physical or mental well-being of said child and the conditions and causes of the incapacity, neglect or refusal cannot or will not be remedied by the parent;

as grounded in § 311(1) and § 311(2) of the Adoption Act of 1970.

To be determined on this appeal is whether the orphans’ court properly applied those sections of the Act to the facts in the instant case. While our scope of review is limited to a determination of whether the orphans’ court’s decree terminating parental rights is supported by competent evidence, In re D.K.W., 490 Pa. 134, 415 A.2d 69 (1980), the court’s inferences, deductions and conclusions are subject to review. In re Adoption of J.A.B., 487 Pa. 79, 408 A.2d 1363 (1979).

A careful review of the chancellor’s four page opinion filed June 10, 1981, the Petition filed by CSEC, and the entire trial transcript compels the conclusion that competent evidence was not presented to support a decree of termination of parental rights under either § 311(1) or § 311(2) and that the inferences and conclusions of the chancellor were in error. I would, therefore, vacate the lower court decree.

§ 311(1)

In the instant case, the six month period during which CSEC alleges the mother refused and failed to perform parental duties elapsed from the mother’s last visit with the child on January 18,1980 until the filing of the form petition for termination on June 26, 1980. The child had been taken from the mother at the age of one month by CSEC and was adjudicated dependent two weeks later under circumstances where it was found that the child had failed to thrive. The child has remained in placement ever since.

The child suffered from a developmental lag and had a blockage in the lungs which induced vomiting on occasion when improperly fed. In addition, the child was diagnosed as having cerebral palsy.

Between the time of the removal of the child from its mother’s home and early 1980, regular, frequent visits occurred between the mother and the child. During early 1980, the protective service caseworker—who was the only witness for the petitioner at the first hearing—was on strike along with her colleagues. Normally, subsequent visits between the mother and child were arranged at the conclusion of each visit in the foster home. The January 18, 1980 visit had been attended by a case aid from CSEC and no future visit was arranged. The caseworker conceded that the mother had requested visitation on April 7, 1980. This request was refused by the caseworker, in spite of a court order dated February 1, 1980 ordering visitation, on the grounds that the caseworker had not had any contact from the mother since before the strike and the caseworker’s belief that a visit at that time “would not be in the best interest of the child.”

On April 11, 1980, an order of court was issued placing all future visitation “at the discretion of the agency.”

All of the visitations between the mother and her child were of short duration, lasting between fifteen and ninety minutes. In October 1979, a physician member of the multidisciplinary team had recommended that the mother be afforded the opportunity to regain her son for a one-week trial period, with daily supervision by the caseworker. When asked at trial why this recommendation had not been implemented, the caseworker testified:

First of all, the agency did not agree with that. We did not feel that it was in the best interest of the child, and based on the fact that the child had not been living with his mother and that she had only been visiting with him for maybe an hour a week, we felt it would be detrimental to the child’s health.

Early on, an evaluation had been made of the home in which the mother was residing. The caseworker found the home situation favorable, but felt that the adults with whom the mother was residing had been “uncooperative” with the agency. At a later date, the mother was abused by the adult male in that home and was forced to move out.

There is nothing in the record to support a conclusion that the mother refused to perform parental duties as contemplated by § 311(1) of the Adoption Act. Nor does the chancellor’s opinion address itself to any facts which, in the opinion of the lower court, would support this result. A parent is required to exert herself to take and maintain a place of importance in the child’s life. In re Adoption of M.M., 492 Pa. 457, 424 A.2d 1280 (1981). But even where there has been no contact between parent and child for a period of more than six months—which is not the case here—a determination of failure to perform parental duties may not be found where the totality of circumstances does not warrant a termination of parental rights. In re Adoption of J.A.B., id., 487 Pa. at 89-90, 408 A.2d at 1368. A finding of abandonment will not be predicated on parental conduct which is reasonably explained or which resulted from circumstances beyond the parent’s control. It may result only when a parent has failed to utilize all available resources to preserve the parental relationship. In re Burns, 474 Pa. 615, 379 A.2d 535 (1977). A parent’s performance of parental obligations must be measured in light of what would be expected of an individual in circumstances in which the parent under examination finds herself. In re Adoption of B.D.S., 494 Pa. 169, 431 A.2d 203 (1981).

In view of the irreversible nature and serious emotional impact of the involuntary termination of parental rights, such action is not authorized unless a preponderance of the evidence clearly warrants it. In re Adoption of Baby Girl Fleming, 471 Pa. 73, 76, 369 A.2d 1200, 1202 (1977); In re Adoption of McAhren, 460 Pa. 63, 70, 331 A.2d 419, 422 (1975). In this case, the record establishes that the agency, CSEC, on frequent occasions, ignored the directions of the court to promote visitation and did not implement recommendations of the multidisciplinary team with which the agency disagreed. It sought and secured an order terminating visitation shortly after the chancellor had concluded, following argument on exceptions to his decree, that the mother had not received a reasonable opportunity to visit her son. It withheld information regarding the infant’s health and therapy program from the mother’s counsel on the pretext that this was confidential information. It limited contacts between the mother and her child to periods of less than two hours and, with rare exceptions, these contacts occurred in the presence of an agency employee or the foster mother.

On the question of whether the record clearly warrants a finding under § 311(1) of the Adoption Act that appellant has refused and failed to perform her parental duties in excess of six months, I would hold that the evidence does not justify the termination of the mother’s parental rights and hence would vacate the lower court decree.

§ 311(2)

Since the petition filed in this case proceeded on the separate grounds of §§ 311(1) and 311(2), the petitioner’s burden can be met in showing by the preponderance of the evidence that either of the disjunctively listed elements of § 311 was satisfied. In Interest of T.S.L., 487 Pa. 245, 248, 409 A.2d 332, 334 (1979); see Matter of Adoption of David C., 479 Pa. 1, 7, 387 A.2d 804, 807 (1978). My review of the record leads me to conclude that it is equally inadequate to support termination under § 311(2).

The form petition filed by CSEC merely avers, in a conclusionary fashion by tracking the statute, that:

[T]he repeated and continued incapacity, neglect or refusal of the parent has caused the subject child to be without essential parental care, control or subsistence necessary for his/her [sic] physical or mental well-being and the conditions and causes of the incapacity, neglect or refusal cannot or will not be remedied by the parent.

This form language is repeated in the printed decree signed by the lower court in its order of October 6, 1980 and again in its opinion filed June 10, 1981. However, it is evident from reviewing the opinion of the lower court that the decision to terminate the parental rights of the mother was based solely upon the lower court’s conclusion that “the respondent does not have the capability and cannot acquire the capability to cope with and handle this particular child and, consequently, [the lower court] must reinstate its Decree of October 6, 1980.” A fair reading of both the lower court’s opinion and the record demonstrates that neither “neglect” nor “refusal” was an issue before the court, and that the termination decree depends upon the chancellor’s inferences, deductions and conclusions concerning the mother’s incapacity.

When proceeding under § 311(2), three things must be shown before a natural parent’s rights in a child will be terminated on grounds of parental incapacity: (1) repeated and continued incapacity must be shown; (2) such incapacity must be shown to have caused the child to be without essential parental care, control or subsistence; and (3) it must be shown that the causes of the incapacity cannot or will not be remedied. In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975).

My reading of the record has not uncovered competent evidence to clearly establish any of the three elements which must be shown to exist. The lower court, in its opinion, finds that the mother “does not have the qualities necessary to parent this child. She has had ample time since 1978 to show whether she could improve herself sufficiently to handle this particular child.”

However, the evidence presented by CSEC consisted primarily of accounts by the caseworkers) and the foster mother regarding the interaction between the natural mother and her son. While much of the evidence reflects that the brief visitations often included anxiety and withdrawal by the son, there is absolutely no evidence which would tie together the behavior of the son as flowing directly from his mother’s alleged incapacities. On the contrary, the only possible competent evidence on this point was presented by a pediatrician who was familiar with the child’s medical history since the child was about six weeks of age. She testified that the child had neurological disability, developmental delays and some physical problems. She indicated that the child had an unstable autonomic system reaction and had undergone some behavioral changes. The pediatrician pointed out that “certain children with the type or problem that [this child] has are not easily adaptable to changes in the environment, to changes in handling.” She further noted that, not only in terms of previous visits with the mother but also in terms of previous hospitalizations, the child “separates very poorly from his foster mother and undergoes a great deal of problems.”

In its short opinion justifying its decree, the lower court only referred to the pediatrician’s opinion that the child should not be moved from his present home, a foster home, at the time of the hearing in June 1981 because of the problems which the child suffers. Surely, the need to maintain a temporary, stable foster home environment arising from the medical and neurological problems of the child, even if relevant, is not the kind of demanding evidence necessary to support a termination decree. See Jones Appeal, 449 Pa. 543, 547, 297 A.2d 117, 119 (1972).

CSEC seems to place great weight on the failure of the mother to comply with the counseling procedures recommended by the multi-disciplinary team. The mother resides in a rural area some twenty miles from the Counseling Center to which she was directed and some thirty miles from Erie where she was expected to attend parenting classes. She does not drive and did not have regular access to a car. There was no public transportation available. CSEC conceded that there was no homebound instruction available and that the agency provided no transportation in cases such as this. At the time of the final hearing, the mother testified that she was then enrolled in parenting classes which had given her a different outlook on matters and taught her something about herself. The mother’s former counsel was permitted to testify, without contradiction in the record, that the mother was attending parenting classes at Family Counseling in Union City, that the Family Counseling counselor had reported that progress was being made, that the mother was grasping the material and that the Family Counseling counselor felt that the mother was both sincerely interested in caring for her children and was strongly motivated. This is totally inconsistent with the lower court’s conclusion that the mother could not acquire the capability to cope with and relate to this child.

Brief mention should be made regarding the relationship between the foster mother and the family here involved. The mother’s former counsel testified that, on February 25, 1981, she had met with the protective service caseworker of CSEC and had been informed that the foster mother, who had had actual custody of the child involved in this case since the time he had been removed from his mother at four weeks of age, was in line for adoption of this child. This was not denied by the caseworker. When asked at the June 3, 1981 hearing whether she wanted to adopt the child, the foster mother testified that if the opportunity occurred, she would consider it. The mother’s former counsel also testified, without contradiction by either the petitioner or the court, that the lower court had expressed its opinion, at the hearing on February 19, 1981, that if the foster mother was in line for adoption of the child, the child should be moved out of that foster home, preferably to a foster home closer to the mother’s residence. This was not done.

Since the issue on this appeal is the capacity of the natural mother to relate effectively to her child, and since a substantial part of the testimony before the lower court involves both the testimony of the foster mother and the circumstances surrounding visitations occurring within the foster mother’s home, it is difficult to avoid the troubling question of whether any fair test of the natural mother’s capacity could take place in an environment where the setting is prepared and potentially controlled by a party possessing an abiding self-interest. Where, as here, the agency refused to implement a recommendation from a professional on its own multi-disciplinary team for a minimal one-week trial period so that the mother could attempt to re-establish a genuine relationship with her son, and where the child involved has, without interruption, been living in the home of a foster parent who very well may have an intense, albeit well-meaning, desire to protect and continue that relationship by converting her status from foster mother to adoptive parent, this court should not be prepared to conclude that petitioner has satisfied its burden to secure termination of those sacred parental rights of the natural mother.

Conclusion

Cases involving involuntary termination of parental rights can often be most difficult to decide. This is because, lurking in the background, is the desire to insure the best interests of the child or children involved. But that question cannot be reached unless, and until, a determination is properly- made that the elements found in § 311 of the Adoption Act have been satisfied through a preponderance of the competent evidence brought forth on the fitness of the parent under attack. See In re Adoption of R. L, 468 Pa. 287 n.12, 361 A.2d 294 n.12 (1976), appeal dismissed, U.S. cert. denied, 429 U.S. 1032, 97 S.Ct. 722, 50 L.Ed.2d 743 (1977).

On this record, I have no difficulty in concluding that CSEC has fallen far short of meeting its burden. When a child has been placed in foster care, a parent has an affirmative duty to work towards the return of the child. See In re Burns, supra. However, even when there has been a long separation occasioned by parental neglect or incapacity, termination of parental rights will not be ordered if there is a reasonable possibility that the causes and conditions which have led to the separation can be remedied and the family restored. In re William L., id., 476 Pa. at 333-34, 383 A.2d at 1233.

In all, this is not a case where the parent abandoned or utterly failed to satisfy her parental obligations. Her child was taken from her one month after birth for failure to thrive and yet has been withheld from appellant’s care throughout the proceedings despite the child’s improvement. The mother has taken advantage of those court-ordered visitation privileges which have been extended. At no point has she failed to visit her child for any extended period of time, with the exception of those times when visitation was refused.

The cause which led to the separation between mother and child in this case was the child’s failure to thrive when barely an infant. While it appears clear from the record that the child has multiple physical or neurological problems, the record is devoid of any competent evidence of any attempt on the part of the petitioner to review these problems with the mother and seek to fashion a plan by which she might begin to cope with these unique aspects of her son’s development. Given the irreversible nature of involuntary termination, I am not prepared to conclude that the conditions existing at the time of this child’s birth which may have led to his separation from his mother cannot be remedied.

The trial court’s conclusion that the involuntary termination of this mother’s parental rights was justified under either § 311(1) or § 311(2) of the Adoption Act cannot stand. I do not feel the demanding standard of evidence required to support termination has been met.

I therefore would vacate the decree and remand this matter for further proceedings consistent with this opinion.

      . The Juvenile Act defines a dependent child as one who:
      (1) is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals;
      (2) has been placed for care or adoption in violation of law;
      (3) has been abandoned by his parents, guardian, or other custodian;
      (4) is without a parent, guardian, or legal custodian[.] 42 Pa.C. S.A. § 6302 (1981 Pamphlet)

      . Appellant attributes her failure to contact Children’s Services or see her son to the fact that Children’s Services was on strike during January and the first part of February 1980. The record reveals, however, that appellant’s last visit occurred during the early part of the strike and appellant knew that she could contact the agency to schedule visitation. Therefore, we note that the strike was not an obstacle to appellant’s either contacting the agency or visiting with her son.

      . At the conclusion of the hearing on October 6, 1980, the chancellor entered the following decree on the record:
      BY THE COURT: Well, the parental rights of [the natural mother] to [her son] are hereby terminated since the parent by conduct which has continued for a period of at least six months has failed and refused to perform parental duties; the repeated and continued incapacity, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being, and the conditions of the neglect cannot or will not be remedied by the parent.
      The Court will recess.
      Appellant has improperly, I believe, incorporated this decree as Appendix A to her Brief, inasmuch as the original record contains a two-page form decree signed by the lower court but containing numerous interlineations. It is worth noting that although the October 6, 1980 decree in the bound record finds that “the conditions and causes of the incapacity, neglect or refusal cannot or will not be remedied by the parent” [emphasis added], the bench decree speaks only to the “conditions of the neglect” [emphasis added]. See footnote 2, infra.

      . I note, with disapproval, that the Petition for Involuntary Termination of Parental Rights filed with the orphans’ court on June 26, 1980 is a “form petition” (Form A-4) containing a large number of words and phrases whch have been either struck through with typewriting or crossed out by pen and ink. The decree attached to the Petition also contains whole sections which have been crossed out, both with blue and with black ink. An examination does not permit any conclusion as to whether any, some or all of these deletions and amendment(s) were made by counsel for CSEC, the lower court, or some other party. The Petition does not contain all of the allegations required by Supreme Court Orphans’ Court Rule 15.4(a). I would submit that the demanding standards of the Adoption Act, the strong policy of restraining from interfering with the family enunciated both by our Legislature and our courts, and the need for adequate review both by the orphans’ and appellate courts require a higher standard of work product than presented here. Cf. In Re William L., 477 Pa. 322, 328-35, 383 A.2d 1228, 1231-34 (1978), U.S. cert. denied, Beatty v. Lycoming County Children’s Services, et al; Lehman v. Lycoming County Children's Services, et al., 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978).

      . No transcript of this proceeding has been brought to our attention, but was discussed in the transcript of testimony of the second termination hearing. N.T. 6/3/81, pp. 46-7.

      . The Motion to Terminate Visitation, filed with the Clerk of Orphan’s Court on May 18,1981, contains numerous averments of facts not appearing of record in the action, contains no verification, and appears to be in clear violation of Rule 1024(a) of the Pennsylvania Rules of Civil Procedure. See Orphans’ Court Rule 3.1, Pa.RCiv.P. Rule 1501. Although the lower court’s Opinion of June 10, 1981 refers to a hearing held on that Motion on June 3, 1981 “concerning the activities leading up to the Motion”, I note the only order entered is attached to the Motion and filed May 18, 1981, terminating the reinstituted visitation. »

      . Although the chancellor characterized his Decree of June 10, 1981 as a “Final Decree”, there is nothing about either the form or contents of the earlier decree entered October 6, 1980 to suggest anything other than a final decree. However, since exceptions were filed and argued, and since the chancellor appears to have reinstituted visitation on or about February 19, 1981 (see text, at footnote 3, supra), without filing any order thereon, the decree of October 6, 1980 may properly be considered a decree nisi.

      . Act of July 24, 1970, P.L. 620, No. 208, art. Ill, §§ 311(1), 311(2), 1 P.S. §§ 311(1), 311(2) (Supp. 1980-81).

      . At the termination hearing held October 6, 1980, the witness for the petitioner, CSEC, read into the record orders of court bearing dates Of 10/4/78, 11/22/78, 3/23/78, 10/19/79, 2/1/80 and 4/11/80. None of these orders were identified as to the proceedings in which they were entered, nor were copies of them made a part of the original record at No. Ill, In Adoption 1980, from whence this appeal is taken. Though the order of 4/11/80 directs CSEC to “proceed with filing a petition for termination of parental rights” [as read into the record on this appeal] there is nothing before this Court to explain why such a directive may have been given nor why CSEC did not proceed with filing a petition until June 26, 1980. It does appear that the refusal of CSEC to grant visitation following the mother’s request on or about April 7, 1980 was, temporarily at least, in violation of the then-outstanding order of 2/1/80 providing that “visitation between [the mother] and her son take place under the supervision of the agency for the foster mother.”


source: Caselaw Access Project

author: HOFFMAN, Judge: VAN der VOORT, Judge,

license: Public Domain

text:
    445 A.2d 174
    COMMONWEALTH of Pennsylvania v. Robert TAYLOR, Appellant.
    Superior Court of Pennsylvania.
    Argued April 7, 1981.
    Filed April 30, 1982.

      John F. Pyfer, Jr., Lancaster, for appellant.
    Edward F. Browne, Jr., Assistant District Attorney, Lancaster, submitted a brief on behalf of Commonwealth, appellee.
    Before SPAETH, HOFFMAN and VAN der VOORT, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in: (1) consolidating for trial offenses arising from two drug transactions; and (2) excluding his offer of prior recorded testimony of an unavailable witness. We hold that the charges were properly consolidated but that the testimony was erroneously excluded. Accordingly, we reverse the judgment of sentence and remand for a new trial. '

I.

Appellant was charged in three informations with several drug offenses arising from transactions with an undercover police officer and a paid police informant. The first two informations concerned sales of cocaine on April 6 and 7, 1978. The other involved a deal for liquid cocaine on June 1, 1978. Before trial, appellant sought to sever the latter (June) from the former (April) informations. The lower court denied his motion and held trial on all charges on June 14, 1979.

At about 9:30 p. m. on April 6, 1978, the paid informant, Danny Krushinski, in the presence of Robert Roderick, the undercover police officer, arranged by telephone to meet appellant at a local hotel. At 11:45 p. m. the three met in appellant’s car, and appellant displayed a one-ounce bag and a quarter-ounce bag of cocaine. Roderick paid appellant $1,900 for the larger bag and agreed to buy the smaller one the following day. After the transaction, Roderick also said he could supply to appellant a bottle of phenyl 2 propenone (P2P), a non-controlled substance essential to manufacturing methamphetamine, in exchange for some finished product. The three briefly negotiated this future deal, then parted. The following morning, April 7, 1978, Krushinski arranged to meet appellant in the parking lot of a tavern during appellant’s lunch hour. Krushinski then told Roderick of the meeting. At about 12:30 p. m., appellant met Roderick and talked about selling the smaller bag. After Krushinski arrived, Roderick paid $500 for it. The three then further planned the exchange for P2P. Roderick and Krushinski suggested they would accept a small quantity of drugs as “collateral,” provided Roderick could visit the laboratory and later receive some finished methamphetamine. Leaving the terms to further negotiation, appellant returned to work by 1:00 p. m. On May 31, 1978, Roderick arranged to meet appellant at 10:30 p. m. the following day. On June 1,1978, Roderick and Krushinski met appellant in the hotel parking lot, and after a brief conversation, Roderick gave appellant a bottle of P2P in exchange for a small vile of liquid cocaine.

Appellant advanced an entrapment defense. He testified that Krushinski had rehearsed him and had supplied all the drugs involved. He testified that Krushinski had approached him at work several times in March, 1978, and on one occasion showed him four hundred-dollar bills, and told him he could make similar money by posing as a drug seller in Krushinski’s scheme to defraud his “partner.” He also testified that he returned to Krushinski all the P2P and all but $150 of the money he received in the drug sales. Krushinski denied these assertions. Another defense witness testified that she had heard Krushinski bragging that he had supplied the drugs involved to various subjects of police investigation, including appellant. Appellant was precluded, however, from introducing the prior recorded testimony of an unavailable witness who had testified in his own trial that he had seen thirty bottles of liquid cocaine in Krushinski’s apartment on June 1, 1978 before appellant’s alleged transaction. The jury returned a verdict of guilty on all counts. Following denial of post-trial motions, appellant was sentenced to three concurrent prison terms of one-and-one-half to three years. This appeal followed.

II.

Appellant contends the lower court erred in consolidating trial of the June information with the April information. We disagree. The consolidation of charges for trial is proper “if (1) the facts and elements of the two crimes are easily separable in the minds of the jury; and (2) the crimes are such that the fact of the commission of each crime would be admissible in a separate trial for the other.” Commonwealth v. Jones, 242 Pa.Super. 303, 307, 363 A.2d 1281, 1283 (1976) (2 drug sales). See Commonwealth v. Vickers, 260 Pa.Super. 469, 394 A.2d 1022 (1978) (2 drug sales); Commonwealth v. Fiorini, 257 Pa.Super. 185, 390 A.2d 774 (1978) (5 drug sales). See also Commonwealth v. Rose, 265 Pa.Super. 159, 401 A.2d 1148 (1979) (2 robberies); Commonwealth v. Irons, 230 Pa.Super. 56, 326 A.2d 488 (1974) (2 assaults). The facts and elements of each offense here were easily separable in the minds of the jury, because the issue in each instance was whether appellant delivered a specific controlled substance on a particular occasion. The propriety of the consolidation thus hinges on whether the fact of the commission of each crime would be admissible in a separate trial for the other.

The prosecution generally may not introduce evidence that the defendant has committed other crimes as evidence of his guilt for the crime charged. This rule stems from recognition that proving one crime generally does not prove commission of another, but merely bad character, which cannot support an inference of guilt, and that evidence of other crimes is likely to prejudice the jury and create an emotional reaction effectually stripping the accused of the presumption of innocence. See, e.g., Commonwealth v. Spruill, 480 Pa. 601, 604, 391 A.2d 1048, 1050 (1978); Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214 (1976); Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972); Commonwealth v. Hawkins, 292 Pa.Super. 492, 433 A.2d 110 (1982); Commonwealth v. Wright, 259 Pa.Super. 293, 298, 393 A.2d 833, 836 (1978). Special circumstance justifying exceptions to the general rule exist when the other crimes tend to prove: (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan, or design embracing the commission of two or more crimes so related that proof of one tends to prove the others; or (5) the identity of the person committing the charged crime. See, e.g., Commonwealth v. Peterson, supra; Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955); Commonwealth v. Wright, supra; Commonwealth v. Hude, 256 Pa.Super. 439, 390 A.2d 183 (1978). Additionally, evidence that a defendant has committed another crime may be admitted when it tends to show that the accused has attempted to conceal the commission of the crime charged or to escape its consequences. Commonwealth v. Terrell, 234 Pa.Super. 325, 329, 339 A.2d 112, 114 (1975). Even when one of these exceptions applies, however, the trial court must still balance the need for the other crimes evidence in light of its convincingness and of all the prosecution’s other evidence against its potential prejudice to the accused. See Commonwealth v. Ulatoski, 472 Pa. 53, 63 n.11, 371 A.2d 186, 191 n.11 (1977); Commonwealth v. Wright, supra, 259 Pa.Superior Ct. at 299, 393 A.2d at 836; Commonwealth v. Hude, supra, 256 Pa.Superior Ct. at 445, 390 A.2d at 186.

While the consolidated trial setting does not change the standard for determining the admissibility of other crimes evidence, it does subtly influence the balance of factors. For instance, the danger that the accused may be forced “to answer additional charges which were not included in the indictment returned against him,” see Commonwealth v. Spruill, supra, is not present. Similarly, considerations concerning “the convincingness of the evidence that the other crimes were committed and that the accused was the actor,” see Commonwealth v. Hude, supra, 256 Pa.Superior Ct. at 445, 390 A.2d at 186, are considerably reduced because the prosecution has committed itself to proving each of the charged crimes beyond a reasonable doubt. See also Commonwealth v. Raymond, 412 Pa. 194, 194 A.2d 150 (1963); Commonwealth v. Bond, 261 Pa.Super. 311, 396 A.2d 414 (1978). Further, because consolidation promotes judicial economy, “the interests of judicial expedience must be weighed against the possibility of resultant prejudice to the appellant.” Commonwealth v. Rose, 265 Pa.Super. 159, 175, 401 A.2d 1148, 1156-57 (1979). Other factors, however, such as the prosecution’s actual need for the evidence, the logical connection between the crimes and the issues in the case, and the possibility of prejudice, remain the same.

Asserting the entrapment defense does not create a reason for admitting other crimes or alter the balance, because the entrapment defense in Pennsylvania “foeus[es] on the conduct of the police and will not be concerned with the defendant’s prior criminal activity or other indicia of a predisposition to commit crime.” Commonwealth v. Jones, supra, 242 Pa.Super. at 311, 363 A.2d at 1285. See 18 Pa.C.S.A. § 313(a); Commonwealth v. Danko, 281 Pa.Super. 97, 421 A.2d 1165 (1980); Commonwealth v. Stokes, 264 Pa.Super. 515, 400 A.2d 204 (1979); Commonwealth v. Manley, 252 Pa.Super. 77, 380 A.2d 1290 (1977); Commonwealth v. Loccisiano, 243 Pa.Super. 522, 366 A.2d 276 (1976).

Applying these principles to the instant case we note that there was no genuine issue at trial as to appellant’s motive, intent, or identity, or as to the absence of a mistake or accident. Appellant admitted that he knew he was dealing in drugs, and the eyewitness testimony of Krushinski and Roderick was corroborated by that of two nearby backup officers who observed each of the meetings. The Commonwealth contends that the June 1 and April 6 and 7 transactions were so intertwined into a common scheme or plan that “proof of one tend[ed] to prove the other.” Commonwealth v. Peterson, supra, 453 Pa. at 197—98, 307 A.2d at 269-70. See Commonwealth v. Bond, supra, 261 Pa.Super. at 317, 396 A.2d at 416. We agree. After each of the April transactions appellant discussed the eventual June transaction. Thus, at a separate trial for the April transactions, the prosecution could introduce the fact of the June transaction to explain these discussions. At a separate trial for the June transaction the Commonwealth could refer back to the April discussions to establish how the charged criminal activity was arranged. Applying the balancing test, we note that judicial economy is greatly served by the consolidation because all witnesses for all charges were identical. Though the Commonwealth’s need for evidence of each crime at a separate trial for the other would not be particularly pressing, neither would the prejudice to appellant be great, given that all crimes were with the same individuals and of a similar nature. The consolidation imposed no undue burden on appellant in asserting his entrapment defense, because it applied equally to all three offenses. “Consolidation or separation of indictments is a matter within the sound discretion of the trial judge, whose decision will be reversed only for a clear abuse of discretion or in cases of clear prejudice of injustice to an accused.” Commonwealth v. Vickers, supra, 260 Pa.Superior Ct. at 475, 394 A.2d at 1025. Accordingly, the lower court did not abuse its discretion in denying appellant’s motion for severance and consolidating the informations for trial. Cf. Commonwealth v. Fiorini, supra (5 drug transactions over several weeks consolidated); Commonwealth v. Vickers, supra (2 drug transactions hours apart consolidated); Commonwealth v. Jones, supra (2 drug transactions hours apart consolidated).

III.

Appellant contends the lower court erred in refusing to allow him to introduce the prior recorded testimony of the unavailable witness John Randy Globisch. We agree. Prior recorded testimony of an unavailable witness may be admitted in a criminal trial either by statute, 42 Pa.C.S.A. § 5917, or by common-law rule. Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 (1980); Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977). For the prior recorded testimony to be admissible “the issues in the first proceeding and hence the purpose for which it was there offered must have been such that the present opponent (or some person in like interest) had an adequate motive for testing on cross-examination the credibility of the testimony now offered.” Commonwealth v. Velasquez, 449 Pa. 599, 601 n.3, 296 A.2d 768, 770 n.3 (1972). See Commonwealth v. Scarborough, supra; McCormick on Evidence §§ 255-57 (2d ed. 1972). Appellant sought to introduce Globisch’s testimony from his own trial on a theft by deception charge arising from a drug transaction with Krushinski and an undercover police officer. Globisch had been asserting an entrapment defense similar to appellant’s and the Commonwealth had had an opportunity to cross-examine. Globisch’s testimony was that on June 1, 1978, a few hours before appellant’s alleged drug sale, he had seen thirty vials of liquid cocaine in Krushinski’s apartment. This testimony “was not cumulative[,] but different in nature from the evidence otherwise admitted,” therefore it was not harmless error to exclude it. Kubit v. Russ, 287 Pa. Super. 28, 36, 429 A.2d 703, 707 (1981). See Commonwealth v. Laws, 474 Pa. 318, 378 A.2d 812 (1977). It was relevant to appellant’s entrapment defense by showing Krushinski’s ability to supply the drugs at the June transaction. It corroborated appellant’s and a defense witness’s testimony, and tended to impeach Krushinski’s, and may thus have influenced the jury’s credibility determinations. Moreover, the April and June charges were so closely intertwined that they could be tried together, and appellant’s entrapment defense alleged a pattern of police misconduct embracing each, and thus the error prejudiced his defense to each. Accordingly, we must reverse the judgment of sentence and remand for a new trial.

Judgment of sentence reversed, and the case is remanded for a new trial.

VAN der VOORT, J., files a concurring and dissenting opinion.

VAN der VOORT, Judge,

concurring and dissenting:

I concur in the Opinion of the Majority in this case except that part of said Opinion labelled part III to which I respectfully dissent.

John Globisch had testified in his own trial (in a case different from the instant case) that he had on June 1,1978, when in Krushinski’s apartment seen thirty (30) vials of cocaine there. In my judgment such testimony of Globisch has no relevancy at all to the drug sale offenses with which appellant is charged to have committed on the dates of April 6th and 7th, 1978.

While the trial court may have erred in refusing admission of Globisch’s transcript testimony as to the offense charged against the appellant on June 1,1978, and thereby warrant a new trial as to that offense. I believe it was correct in refusing the admission of such testimony as to the April 6th and 7th offenses.

I would affirm the convictions as to the April 6th and 7th transactions.

      . See also Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973) (2 robberies) (plurality decision). Accord, II A.B.A. Standards • for Criminal Justice, Standard 13-3.1 (1980) (less precisely defined fairness and no prejudice standard). Contra 10A P.L.E. Criminal Law §§ 442, 443 (1970 & Supp.1981) (more relaxed standard for consolidation).
      Note also that the procedures for consolidating trial have, since the inception of this case, been defined more precisely. Pa.R.Crim.P. 1127, 1128 (effective July 1, 1982).

      . See also Commonwealth v. Ferguson, 289 Pa.Super. 163, 432 A.2d 1103 (1981) (HOFFMAN, J., dissenting). But see Commonwealth v. Lee, 262 Pa.Super. 218, 396 A.2d 724 (1978); Commonwealth v.

        Clawson, 250 Pa.Super. 422, 378 A.2d 1008 (1977) (plurality opinion) (purporting to apply 18 Pa.C.S.A. § 313(a), but considering criminal predisposition of defendant); Commonwealth v. Jones, supra, 242 Pa.Super. at 309, 363 A.2d at 1284 (stating, apparently inconsistently with its holding predisposition irrelevant to the entrapment defense, that “[ejvidence of a sale just two hours prior to the sale in question would be relevant on the issue of entrapment, and on appellant’s intent in general.” (Emphasis supplied). Read in context, the italicized statement should be dismissed as mere surplusage). Contra United States v. Hill, 481 F.Supp. 558 (E.D.Pa.1979) (predisposition, and thus prior crimes establishing it, relevant under Federal entrapment law using a subjective test) (multiple drug sales consolidated for trial).

      . The Commonwealth conceded that Globisch was, in fact, unavailable. N.T. at 210; Appellee’s Brief at 12.

      . Appellant contends that he should be discharged because he was not timely tried. We disagree. On March 22, 1979, appellant waived his right to a speedy trial under Pa.R.Crim.P. 1100, and agreed to be tried by July 20, 1979. See Commonwealth v. Dalahan, 262 Pa.Super. 615, 396 A.2d 1340 (1979) (approving identical form waiver). Appellant’s trial commenced on June 14, 1979, within the prescribed period. Accordingly, appellant’s trial was timely.
      Appellant contends also that the lower court erred in: (1) permitting the Commonwealth knowingly to use Krushinski’s allegedly false testimony as to the details of his prior convictions and prior unpaid fines; (2) refusing to admit evidence that Krushinski had been arrested for theft of services and assault; and (3) failing to instruct the jury that the Commonwealth had a burden of proving that its informer did not supply the drugs. Because of our disposition of this case, however, we need not reach these issues.


author: HOFFMAN, Judge:

text:
    445 A.2d 179
    Rosalie COHEN, Appellant, v. TEMPLE UNIVERSITY OF the COMMONWEALTH SYSTEM OF HIGHER EDUCATION, and Marvin Wachman, and John Rumpf, and George W. Johnson, and David G. Berger.
    Superior Court of Pennsylvania,
    Argued Nov. 6, 1981.
    Filed April 30, 1982.

      John J. O’Brien, Jr., Philadelphia, for appellant.
    Matthew Strickler, Philadelphia, for appellees.
    Before BECK, HOFFMAN and LIPEZ, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in dismissing her complaint for failure to exhaust mandatory arbitration procedures. We disagree and, accordingly, affirm the order of the court below.

In 1970, appellant, Dr. Rosalie Cohen, was jointly appointed to the faculty of appellee Temple University of the Commonwealth System of Higher Education as an Associate Professor in the Department of Sociology of the College of Liberal Arts and the Department of Foundations of Education of the College of Education. Thereby, she was to teach courses in both departments, but was to be considered for promotion within the Department of Sociology. On July 5, 1973, the American Association of University Professors was duly certified pursuant to the Public Employe Relations Act (PERA) as the exclusive bargaining representative of a unit including the full-time faculty of the Colleges of Liberal Arts and Education. The union and the University subsequently negotiated a collective bargaining agreement establishing minimum pay scales and generally incorporating existing university policies on promotion, work load, and fringe benefits. The collective bargaining agreement also established a three-step procedure for processing employee grievances and required, as a final step of that process, that all disputes be submitted to arbitration. Appellant did not join the union. On September 26, 1979, she filed a four-count complaint in assumpsit and trespass seeking compensatory and punitive damages from the University and four of its administrators. Appellant’s three assumpsit counts aver that her contractual employment rights had been violated because: (1) she had not been promoted to the status of Professor according to established university procedures; (2) she had not been assigned to choice committees and graduate-level courses; and (3) the University had not observed proper procedures in attempting to terminate her appointment to the Department of Foundations of Education. Appellant’s trespass count generally reiterated her claim that she had been denied promotion and further alleged that the appellee administrators had fraudulently misrepresented the procedures that would be employed in evaluating her last application for promotion. Appellees then filed preliminary objections asserting, inter alia, that the court lacked subject matter jurisdiction because appellant had failed to submit her disputes to arbitration as required by the collective bargaining agreement and section 903 of PERA, 43 P.S. § 1101.903. The lower court sustained the preliminary objection as to its jurisdiction and dismissed appellant’s complaint with a directive that the parties submit the matters to arbitration. This appeal followed.

“Where ... an administrative remedy is statutorily prescribed the general rule is that a court—be it a court of equity or a court of law—is without jurisdiction to entertain the action.” Lilian v. Commonwealth, 467 Pa. 15, 18, 354 A.2d 250, 252 (1976) (citations omitted). Accord, Veerasingham v. Sharp, 61 Pa. Commonwealth Ct. 460, 464, 434 A.2d 221, 223 (1981). “An aggrieved employee covered by a collective bargaining agreement which provides exclusive remedies for breaches of that agreement, must attempt to exhaust those contractual remedies before initiating suit.” Soto Scgarra v. Sea-Land Service, Inc., 581 F.2d 291, 294 (1st Cir. 1978) (citations omitted). Under PERA,

[ajrbitration of disputes or grievances arising out of the interpretation of the provisions of a collective bargaining agreement is mandatory. The procedure to be adopted is a proper subject of bargaining with the proviso that the final step shall provide for a binding decision by an arbitrator or a tri-partite board of arbitrators as the parties may agree.

43 P.S. § 1101.903 (emphasis added). The compulsion to arbitrate labor disputes is derived jointly from the statute and the collective bargaining agreement. Ziccardi v. Commonwealth, Department of General Services, 50 Pa. Commonwealth Ct. 367, 371, 413 A.2d 9, 11 (1980); Oxford Board of School Directors v. Commonwealth, 31 Pa. Commonwealth Ct. 441, 443, 376 A.2d 1012, 1013 (1977). Cf. Pitts-

burgh Joint Collective Bargaining Committee v. City of Pittsburgh, 481 Pa. 66, 72 & n.10, 391 A.2d 1318, 1321 & n.10 (1978) (arbitration of public employee labor dispute derived from the collective bargaining agreement). Arbitration of disputes is generally favored under the statutory and decisional law of the Commonwealth. See, eg., Waddell v. Shriber, 465 Pa. 20, 25, 348 A.2d 96, 99 (1975); Chester City School Authority v. Aberthaw Construction Co., 460 Pa. 343, 352, 333 A.2d 758, 763 (1975); Flightways Corp. v. Keystone Helicopter Corp., 459 Pa. 660, 662, 331 A.2d 184, 185 (1975). “Moreover, the settlement of labor disputes through arbitration is particularly favored, as the arbitration of labor disputes under collective bargaining agreements is ‘part and parcel of the collective bargaining process.’ ” Lincoln University of the Commonwealth System of Higher Education v. Lincoln University Chapter of the American Association of University Professors, 467 Pa. 112, 120, 354 A.2d 576, 580 (1976) (citation omitted). Accord, Division 85, Amalgamated Transit Union v. Port Authority of Allegheny County, 62 Pa. Commonwealth Ct. 528, -, 437 A.2d 105, 107 (1981); Shippensburg Area Education Association v. Shippensburg Area School District, 42 Pa. Commonwealth Ct. 128, 132, 400 A.2d 1331, 1333 (1979). See generally Pittsburgh Joint Collective Bargaining Committee v. City of Pittsburgh, supra (emphasizing policy considerations inherent in arbitration of disputes in the public employment arena); Pennsylvania Labor Relations Board v. Commonwealth, 478 Pa. 582, 387 A.2d 475 (1978) (same). Consequently, it is incumbent upon an aggrieved employee to submit his disputes to arbitration as a condition precedent to seeking judicial redress, and his failure to exhaust mandatory arbitration procedures deprives the courts of subject matter jurisdiction. Veerasingham v. Sharp, supra, 61 Pa. Commonwealth Ct. at 462-63, 434 A.2d at 223 (assumpsit for wrongful discharge); Ziccardi v. Commonwealth, Department of General Services, supra 50 Pa. Commonwealth Ct. at 370-71, 413 A.2d at 10-11 (wrongful discharge case brought in trespass, assumpsit, and equity); Donnellan v. Mt. Lebanon School District, 32 Pa. Commonwealth Ct. 33, 35, 377 A.2d 1054, 1056 (1977) (assumpsit action concerning payment period of annual salary). Accord, Fouts v. Allegheny County, - Pa. Commonwealth Ct. -, -, 440 A.2d 698, 700-01 (1982) (failure to arbitrate dispute is an unfair labor practice cognizable only before the Pennsylvania Labor Relations Board) (en banc); Stroudsburg Area Board of Education v. Pennsylvania Labor Relations Board, 39 Pa. Commonwealth Ct. 200, 202, 395 A.2d 622, 623 (1978) (same) (panel case); North Star School District v. Pennsylvania Labor Relations Board, 35 Pa. Commonwealth Ct. 429, 432, 386 A.2d 1059, 1060 (1978) (same) (panel case); Oxford Board of School Directors v. Commonwealth, supra, 31 Pa. Commonwealth Ct. at 443, 376 A.2d at 1013 (same) (panel case). Appellant has neither submitted her disputes to the required grievance procedures nor sought arbitration. Consequently, if appellant’s disputes are arbitrable, the lower court properly concluded that it lacked subject matter jurisdiction.

“Judicial review of the arbitrability of a grievance is limited to determining whether the parties entered into an agreement to arbitrate and whether the dispute falls within the arbitration clause.” Division 85, Amalgamated Transit Union v. Port Authority of Allegheny County, supra, 62 Pa. Commonwealth Ct. at -, 437 A.2d at 107, citing Shippensburg Area Education Association v. Shippensburg Area School District, supra, 42 Pa. Commonwealth Ct. at 132, 400 A.2d at 1332. Accord, Lincoln University of the Commonwealth System of Higher Education v. Lincoln University Chapter of the American Association of University Professors, supra 467 Pa. at 120, 354 A.2d at 580; North Star School District v. Pennsylvania Labor Relations Board, supra 35 Pa. Commonwealth Ct. at 433, 386 A.2d at 1061. In determining arbitrability, we must also consider whether the dispute falls within the scope of the contractual grievance procedures. Carmichaels Area School District v. Carmichaels Area Education Association, 37 Pa. Commonwealth Ct. 141, 145, 389 A.2d 1203, 1206 (1978), aff’d mem., 487 Pa. 15, 407 A.2d 382 (1979). The collective bargaining agreement, as noted above, clearly requires submission of disputes to grievance and arbitration procedures. We must, therefore, determine whether appellant’s disputes fall within the scope of the grievance and arbitration clauses. Section 903 of PERA requires arbitration of all “disputes or grievances arising out of the interpretation of the provisions of a collective bargaining agreement.” 43 P.S. § 1101.903. Cases construing that section and contractual arbitration provisions, however, have liberally interpreted the scope of arbitration. “To be consistent with the general policy favoring the arbitration of contractual differences, we believe an order enjoining arbitration of a particular grievance should not be granted unless it may be said with positive assurance that the arbitration clause is not susceptible to an interpretation that covers the asserted dispute.” Lincoln University of the Commonwealth System of Higher Education v. Lincoln University Chapter of the American Association of University Professors, supra 467 Pa. at 121-122, 354 A.2d at 581-82 (citations omitted). Accord, Pennsylvania Labor Relations Board v. Greater Johnstown Area Vocational-Technical School, 48 Pa. Commonwealth Ct. 604, 610, 410 A.2d 1290, 1293 (1980); Oxford Board of School Directors v. Commonwealth, supra 31 Pa. Commonwealth Ct. at 443, 376 A.2d at 1013. Thus, a dispute is arbitrable if it “arose out of the interpretation or application of a provision of the agreement,” Shippensburg Area Education Association v. Shippensburg Area School District, supra 42 Pa. Commonwealth Ct. at 132, 400 A.2d at 1333, involved a “misinterpretation or misapplication of the provisions of th[e] collective bargaining agreement,” Carmichaels Area School District v. Carmichaels Area Education Association, supra 37 Pa. Commonwealth Ct. at 145, 389 A.2d at 1206, “arguably involve[d] an interpretation or violation of one of the provisions of the collective bargaining agreement,” Oxford Board of School Directors v. Commonwealth, supra 31 Pa. Commonwealth Ct. at 443, 376 A.2d at 1013 (emphasis in original); accord, Ringgold Area School District v. Abramski, 57 Pa. Commonwealth Ct. 33, 37, 426 A.2d 707, 710 (1981); North Star School District v. Pennsylvania Labor Relations Board, supra 35 Pa. Commonwealth Ct. at 433, 386 A.2d at 1061, or “is one arguably dealt with by [a] provision[] of the collective bargaining agreement,” Donnellan v. Mt. Lebanon School District, supra 32 Pa. Commonwealth Ct. at 35, 377 A.2d at 1056. Counts one and four of appellant’s complaint allege that she had been denied promotion and had been the victim of misrepresentations as to the procedures that would be employed in entertaining her application for promotion, matters unquestionably governed by Article VIII (promotions) of the collective bargaining agreement. Count two challenges committee and class assignments, matters within the ambit of Article V (work load) of the collective bargaining agreement and the pre-existing university guidelines incorporated by reference into that agreement. Count three alleges that the University did not comply with appropriate procedures in attempting to terminate appellant’s appointment to the Department of Foundations of Education, a matter covered by Article VII (retrenchment) of the collective bargaining agreement.

We perceive of no argument, nor has [appellant] advanced any arguments, v/hereby we may say “with positive assurances”, that this dispute does not arguably fall within the arbitration provisions of the collective bargaining agreement. In any event, the resolution of the issue of whether or not the arbitration clause of the parties’ agreement encompasses the dispute[s] ... is a “question of the scope of the grievance arbitration procedure [and] is for the arbitrator, at least in the first instance.” Pittsburgh Joint Collective Bargaining Committee v. City of Pittsburgh, 481 Pa. 66, 75, 391 A.2d 1318, 1323 (1978). (Emphasis in original.)

Pennsylvania Labor Relations Board v. Greater Johnstown Area Vocational-Technical School, supra 48 Pa. Commonwealth Ct. at 610, 410 A.2d at 1293. If the arbitrator decides that appellant’s claims are indeed beyond the scope of the arbitration clause of the collective bargaining agreement, she may bring suit on her claims and we would modify our judgment so that it would be without prejudice so to do. Donnellan v. Mt. Lebanon School District, supra 32 Pa. Commonwealth Ct. at 36, 377 A.2d at 1057. Accordingly, the court below did not err in finding that appellant’s disputes were arbitrable.

Appellant argues, however, that she may sue upon her individual employment contract because, as a non-union employee, she is not bound to arbitrate her disputes with the University. We disagree. Section 606 of PERA, 43 P.S. § 1101.606, provides, in pertinent part, that “representatives selected by public employes in a unit appropriate for collective bargaining purposes shall be the exclusive representative of all the employes in such unit to bargain on wages, hours, terms and conditions of employment.” (Emphasis added.) “PERA was expressly designed ... to protect the rights of all public employes, not merely those who are union members.” Hollinger v. Department of Public Welfare, 469 Pa. 358, 369 n.17, 365 A.2d 1245, 1251 n.17 (1976) (emphasis in original). Accord, Pennsylvania Labor Relations Board v. Eastern Lancaster County Education Association, 58 Pa. Commonwealth Ct. 78, 427 A.2d 305 (1981) (union owes duty of fair representation to non-union members of bargaining unit as well as to union members). In Branch 6000, National Association of Letter Carriers v. NLRB, 595 F.2d 808 (D.C. Cir.1979), a non-union employee filed an unfair labor practice charge against the union alleging that it had breached its duty of fair representation. In affirming the finding that an unfair labor practice had occurred, the court stated:

With respect to terms and conditions of employment, the [National Labor Relations] Act grants to the majority representative the power to act as the exclusive bargaining agent for all the employees of the bargaining unit. Individual members have no separate negotiating rights; they must look exclusively to the union for protection of their interests. The duty of fair representation imposes upon the bargaining agent an obligation to represent fairly the interests of all employees in the bargaining unit, in good faith, and without arbitrariness or invidious discrimination.

Id. at 811 (footnote omitted). Accord, International Brotherhood of Electrical Workers v. Foust, 442 U.S. 42, 46-47, 99 S.Ct. 2121, 2124-25, 60 L.Ed.2d 698, 702-03 (1979). As a general proposition, a collective bargaining contract will supersede an individual employment contract, insofar as the two are inconsistent and do not reflect the individual’s superior bargaining power, regardless of whether the individual contract arose before the collective bargaining, J. I. Case Co. v. NLRB, 321 U.S. 332, 64 S.Ct. 576, 88 L.Ed. 762 (1944), or after it, Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 64 S.Ct. 582, 88 L.Ed. 788 (1944). See also Smith Unemployment Compensation Case, 187 Pa. Superior Ct. 560, 564, 146 A.2d 59, 61 (1958), rev’d on other grounds sub nom., Smith v. Unemployment Compensation Board of Review, 396 Pa. 557, 154 A.2d 492 (1959); Duquesne Brewing Co. of Pittsburgh v. Unemployment Compensation Board of Review (Loerlein Unemployment Compensation Case), 162 Pa. Superior Ct. 216, 221, 56 A.2d 269, 271, aff’d per curiam, 359 Pa. 535, 59 A.2d 913 (1948). In Donnellan v. Mt. Lebanon School District, a non-union teacher sued his employer in assumpsit concerning the payment period of his annual salary. The Commonwealth Court held that he could not sue upon his individual contract because his dispute was “one arguably dealt with by the collective bargaining agreement, . . . and . . . arbitration [was] the proper and only remedy . . . available.” 32 Pa. Commonwealth Ct. at 35, 377 A.2d at 1056 (emphasis in original). Consequently, the mere fact that appellant was not a member of the union certified as the exclusive representative of her bargaining unit will not permit her to sue upon her individual contract with the University.

Because we conclude that appellant’s disputes are encompassed by the mandatory grievance and arbitration provisions of a collective bargaining agreement and that appellant utterly failed to exhaust that remedy, we hold, as did the court below, that our courts lack subject matter jurisdiction over appellant’s complaint in assumpsit and trespass. Accordingly, the lower court properly dismissed her complaint.

Order affirmed.

      . Act of July 23, 1970, P.L. 563, No. 195, as amended, 43 P.S. §§ 1101.101-1101.2301.

      . The collective bargaining agreement provides, in pertinent part: ARTICLE XVI
      Grievance Procedure
      A. The AAUP and Temple agree that they will use their best efforts to encourage the informal and prompt settlement of grievances. In the event a grievance may arise between Temple and one or more of its employees, or between Temple and the AAUP, involving the interpretation and application of this Agreement which cannot be settled informally, a grievance procedure is described below for the orderly resolution of such grievances. The AAUP shall be notified in advance and shall have the right to be present at meetings specified in all steps. The grievant shall have the right of AAUP representation, or may represent himself.
      ARTICLE XVII
      Arbitration Procedures
      A. In the event a grievance is not satisfactorily resolved through the grievance procedures described in Article XVI of this Agreement, or this Agreement otherwise provides that a matter may be referred to arbitration, and the AAUP wishes to proceed to arbitration, Temple and AAUP shall meet within ten days after Temple’s decision in Step 3 of the Grievance Procedure to attempt to select an arbitrator competent in matters peculiar to institutions of higher education and, if appropriate, to a particular discipline. Should the parties be unable to agree on an arbitrator within five days, the grievance may be referred to the American Arbitration Association for resolution by a single arbitrator in accordance with its Voluntary Rules of Labor Arbitration then in force.
      B. The language used in this Agreement shall be binding upon the arbitrator.
      C. The decision of the arbitrator shall be final and binding.

      . Appellant alleged also that she had been “constructively locked out” because the University had failed to accept and forward messages concerning her students.

      . Appellant argues that the court has subject matter jurisdiction at least as to part of her claim because appellees’ preliminary objection raised that issue as to only two counts of her complaint. We disagree. “It is axiomatic that a court may raise the issue of its subject-matter jurisdiction on its own initiative at any stage of a proceeding and, further, that such jurisdiction cannot be obtained by consent of the parties, or by waiver or estoppel.” In re Borough of Valley-Hi, 54 Pa. Commonwealth Ct. 53, 56-7, 420 A.2d 15, 17 (1980) (citations omitted). It is thus inconsequential that appellees did not attack the totality of appellant’s complaint. See Ringgold School District v. Abramski, 57 Pa. Commonwealth Ct. 33, 38 n.4, 426 A.2d 707, 710 n.4 (1981).

      . Although this appeal may arguably fall within the jurisdiction of the Commonwealth Court, see 42 Pa.C.S.A. § 762(a)(4)(i)(A); see, e.g., Fouts v. Allegheny County,-Pa. Commonwealth Ct.-, 440 A.2d 698 (1982); Rutledge v. Southeastern Pennsylvania Transportation Authority, 52 Pa. Commonwealth Ct. 308, 415 A.2d 982 (1980), overruled in part on other grounds, Fouts v. Allegheny County,

        supra; Williamsport Area Community College Education Association v. Williamsport Area Community College, 43 Pa. Commonwealth Ct. 270, 402 A.2d 1102 (1979); Donnellan v. Mt. Lebanon School District, 32 Pa. Commonwealth Ct. 33, 377 A.2d 1054 (1977), we need not transfer this matter to that forum, see 42 Pa.C.S.A. § 705, but may entertain it because no party has objected to this Court’s exercise of jurisdiction, id. § 704(a).

      . Cases construing the National Labor Relations Act are persuasive authority, but must be carefully applied to observe any inherent distinctions between public and private employment. See, e.g., Borough of Wilkinsburg v. Sanitation Department of the Borough of Wilkinsburg, 463 Pa. 521, 525 n.5, 345 A.2d 641, 643 n.5 (1975); Fouts v. Allegheny County, supra - Pa. Commonwealth Ct. at -, 440 A.2d at 700-01; Burse v. Commonwealth, 56 Pa. Commonwealth Ct. 555, 557, 425 A.2d 1182, 1184 (1981).

      . We conclude that Article XXII (no strike/no lockout) of the collective bargaining agreement encompasses appellant’s averment that she had been “constructively locked out.”

      . Because of our disposition of this case, we need not reach the other issues raised.


text:
    445 A.2d 185
    COMMONWEALTH of Pennsylvania v. Steven LUX, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 20, 1981.
    Filed April 30, 1982.

      John G. McDougall, Philadelphia, for appellant.
    Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
    Before BECK, WATKINS and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the juvenile court erred in certifying him to criminal court to stand trial as an adult. Because the record is inadequate to permit our review, we vacate the judgment of sentence and remand for proceedings consistent with this opinion.

A juvenile delinquency petition was filed against appellant alleging that he and two companions had robbed a pizza deliveryboy at rifle-point. The Commonwealth sought to have appellant, then 17 years old, certified to stand trial as an adult in criminal court. Following a certification hearing on July 8,1980, appellant was certified to criminal court and subsequently convicted of robbery, theft, and conspiracy. The trial court denied appellant’s post-trial motions and imposed sentence, prompting this appeal.

Appellant contends that the juvenile court erred in finding him not amenable to treatment, rehabilitation and supervision in the juvenile system. Before a juvenile may be transferred to criminal court in a non-capital case, the juvenile court must find that all of the following exist:

(1) The child was 14 or more years of age at the time of the alleged conduct.
(2) A hearing on whether the transfer should be made is held in conformity with this chapter.
(3) Notice in writing of the time, place, and purpose of the hearing is given to the child and his parents, guardian, or other custodian at least three days before the hearing.
(4) The court finds:
(i) that there is a prima facie case that the child committed the delinquent act alleged;
(ii) that the delinquent act would be considered a felony if committed by an adult; and
(iii) that there are reasonable grounds to believe all of the following:
(A) That the child is not amenable to treatment, supervision or rehabilitation as a juvenile through available facilities, even though there may not have been a prior adjudication of delinquency.. . .
(B) That the child is not commitable to an institution for the mentally retarded or mentally ill.
(C) That the interests of the community require that the child be placed under legal restraint or discipline or that the offense is one which would carry a sentence of more than three years if committed as an adult.

42 Pa.C.S.A. § 6355(a). A juvenile court need not make a formal statement or findings of fact in order to comply with these requirements. Commonwealth v. Harrod, 260 Pa.Superior Ct. 312, 316, 394 A.2d 567, 570 (1978). “However the court must make a statement of reasons for certification, and this statement ‘should be sufficient to demonstrate that .. . the question [of certification] has received the careful consideration of the Juvenile Court; and it must set forth the basis for the order with sufficient specificity to permit meaningful review.’ ” Commonwealth v. Stokes, 279 Pa.Superior Ct. 361, 367, 421 A.2d 240, 243 (1980) quoting Kent v. United States, 383 U.S. 541, 561, 86 S.Ct. 1045, 1057, 16 L.Ed.2d 84, 97 (1966). Although the juvenile court concluded that appellant was not amenable to “treatment, supervision or rehabilitation,” it failed to make any findings of fact or articulate its reasons. Because the juvenile court has failed to specify its reasons for finding appellant not amenable, we are unable to properly evaluate its decision. Moreover, the only evidence of appellant’s amenability was supplied by a Delaware County Juvenile Probation supervisor, who had never spoken with appellant or his parents. Her opinion—that appellant was not amenable—was based solely upon her review of appellant’s file. The only basis she articulated for her conclusion, was appellant’s prior adjudication and probation for punching another youth in the face. Although certainly a factor to be considered, appellant’s fisticuffs is insufficient by itself to serve as a basis for transferring appellant to criminal court. See, e.g., Commonwealth v. Greiner, 479 Pa. 364, 372, 388 A.2d 698, 702 (1978) (nature of offense only one factor in an amenability determination) rev’g 236 Pa.Superior Ct. 289, 344 A.2d 915 (1975). The witness expressed no other specific reason for her conclusion. Although she indicated that her conclusion was based upon appellant’s file, we have no way of knowing what particular factors formed the bases of her opinion. The juvenile court may not abdicate its responsibility to determine a juvenile’s amenability. The witness’s unsubstantiated opinion does not guarantee that the court has given the “careful consideration” required by Kent. In fact, her testimony showed that she was far from certain of the availability of certain facilities and appellant’s amenability to treatment there. Because of these deficiencies, “our evaluation of the propriety of the certification is precluded.” Commonwealth v. Bey, 249 Pa.Superior Ct. 185, 195, 375 A.2d 1304, 1310 (1977). Accordingly, we must vacate the judgment of sentence and remand for a new certification hearing. If appellant is again certified to criminal court, the judgment of sentence shall be reinstated and a new appeal will lie. If appellant is not certified to criminal court, the case shall remain in the juvenile system for disposition.

So ordered.

WATKINS, J., dissents.

      . The Commonwealth contends that appellant has waived all issues concerning the certification by failing to raise them in his pre-trial motions pursuant to Pa.R.Crim.P. 306 and 307. The Commonwealth’s argument rests upon our April 3, 1981 decision in Commonwealth v. Sadler. However, this Court subsequently granted reconsideration in Sadler, see - Pa.Super. -, 447 A.2d 625 (1982), thereby abrogating its requirement that certification issues must be raised in pre-trial motions. Absent new evidence, a trial court may not in pre-trial motions review a juvenile court’s decision to certify a juvenile to criminal court. Commonwealth v. Brown, 485 Pa. 368, 402 A.2d 1007 (1979). We shall not require a juvenile to file a pre-trial motion on an issue that the court cannot reach.

      . Because appellant preserved his objection to the certification, we must attempt a review of the record. However, as noted in text, deficiencies in the record prohibit a meaningful review. Therefore, although the Commonwealth is correct in its contention that appellant failed to properly preserve the adequacy of the juvenile court’s certification statement in his post-trial motions, we are constrained to reach the issue.

      . The witness testified that “Quite honestly, I believe that [appellant] would be in Cornwell Heights [Youth Development Center].” (N.T., July 8, 1980 at 40). Further, she testified that she was unsure whether that facility was available. (Id) When asked whether appellant would be amenable to treatment at that facility, she originally replied “I have no idea.” (Id at 41.) She subsequently decided that it was questionable whether Cornwell Heights could fulfill appellant’s needs. (Id at 42.) Still later, she found him “basically” not amenable to treatment there. (Id)

      . Because of our disposition of this matter, we need not reach appellant’s final contention that the juvenile court erred in not allowing him to preliminarily cross-examine the witness on her qualifications. We note however, that the better practice would be to allow appellant’s request.


author: PER CURIAM:

text:
    445 A.2d 188
    Jose A. MALDONADO, Appellant, v. The PENNSYLVANIA SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS.
    Superior Court of Pennsylvania.
    Argued Sept. 10, 1980.
    Filed April 30, 1982.

      W. D. Murphy, Pottstown, for appellant.
    Richard H. Elliott, Doylestown, for appellee.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   PER CURIAM:

Two years prior to filing the instant action in the court below, plaintiff-appellant Jose Maldonado was arrested and charged with cruelty to animals under 18 Pa.C.S.A. § 5511(a). The arrest followed a search of appellant’s property by an agent of appellee, The Pennsylvania Society for the Prevention of Cruelty to Animals (SPCA), under a search warrant obtained by the SPCA pursuant to 18 Pa.C. S.A. § 5511(c). Appellant was tried and found guilty of cruelty to animals but his conviction was ultimately reversed by this court because the search warrant was found to be defective. Commonwealth v. Maldonado, 259 Pa.Super. 548, 393 A.2d 962 (1977).

Appellant thereafter instituted this suit alleging that the SPCA, through its agent, trespassed upon his property and that the trespass was the cause of various damages sustained by appellant. The SPCA filed preliminary objections in the nature of a demurrer. The lower court sustained the preliminary objections and dismissed the complaint. Appellant filed an appeal to this court and we now reverse.

The lower court’s conclusion that the complaint did not state a cause of action was based on the fact that the agent’s entry was privileged, since the agent was acting under a search warrant issued pursuant to 18 Pa.C.S.A. § 5511(c), and on the court’s observation that “in this case there is no claim that the agent acted in bad faith concerning the existence of probable cause.” (Lower court opinion at 3). On the contrary, paragraph 13 of the complaint alleges that “The aforesaid activities were intentionally and maliciously conducted, without good faith, and in reckless disregard of the rights of plaintiff...” (Reproduced record at 3(a)). One of the “aforesaid activities” was the obtaining of the search warrant without probable cause. (See paragraph 3 of the complaint, reproduced record at 2(a)).

Since the court grounded its dismissal of the complaint on a misapprehension of the averments contained therein as to pleading a lack of good faith, we must reverse.

The order dismissing the complaint is reversed and appellant’s cause of action is reinstated.


text:
    445 A.2d 189
    COMMONWEALTH of Pennsylvania, v. Richard E. KAISER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 7, 1981.
    Filed April 30, 1982.
    James R. Protasio, Assistant Public Defender, Mount Carmel, for appellant.
    Dean N. Livermore, Assistant District Attorney, Williams-port, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   PER CURIAM:

This case is remanded to the trial court to complete the record to include by stipulation or otherwise, the search warrant and its supporting affidavit. Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973). Jurisdiction is retained by this court pending remand.