text:
    480 A.2d 1126
    COMMONWEALTH of Pennsylvania v. Emmett COOPER, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 23, 1984.
    Filed July 6, 1984.

      James N. Fitzsimmons, Jr., Uniontown, for appellant.
    Gerald R. Solomon, District Attorney, Uniontown, for Commonwealth, appellee.
    Before POPOVICH, HOFFMAN and LIPEZ, JJ.
   POPOVICH, Judge:

This is an appeal from the Order of the Court of Common Pleas of Fayette County denying appellant’s, Emmett Cooper’s, Post-Conviction Hearing Act (PCHA) petition. 19 P.S. § 1180-1 et seq., as amended; reenacted as 42 Pa.C. S.A. §§ 9541-9551. We reverse.

At the outset, this Court would like to note that the direction this case has followed can be attributed, in part, to appellant’s insistence that he be availed the opportunity to have his conviction reviewed, initially, within the context of the Post-Conviction Hearing Act vis-a-vis the post-verdict motion route. We believe this is linked to appellant not being specifically advised that his failure to file post-verdict motions would preclude him from raising “any grounds” that could have been contained therein on appeal, notwithstanding his filing of a PCHA petition as a substitute for post-verdict motions. Our rules of criminal procedure do not make allowances for such a procedural slight-of-hand. In other words, if the appellant were to comply with such a procedural irregularity, knowingly and intelligently, he might fall prey to the waiver doctrine. See Pa.R.Crim.P. 1123(c)(3). From what we have been able to garner from the record, which is discussed infra, appellant had no intention of waiving any issues that could be raised on appeal. See also note 2, infra.

Having stated the aforementioned, we will now turn to the facts: After a jury trial on June 9-10, 1976, the appellant was found guilty of criminal attempt to commit burglary. 18 Pa.C.S.A. § 901. Following the rendition of the verdict, the trial court immediately advised the appellant that he had a right to file motions for a new trial and for an arrest of judgment within seven (7) days and to the right to have the public defender continue to aid him in this endeav- or, free of charge. In particular, the appellant was advised that if the motions were filed and denied he “would have the right to appeal to a high court on the grounds appearing in those motions. If the motions [were] not filed or if they [were] withdrawn, the effect would be that the verdict w[ould] stand.” (N.T. 6/9-10/76 at 70) Further, upon request to address the trial court, appellant wanted to know if he could “be furnished with the post conviction” so he could appeal the conviction on his own. The trial court responded that by filing a post conviction petition, the appellant would be “waiving” his right to file the motions just mentioned. Appellant acknowledged, following an off-the-record discussion with trial counsel, that he wanted to “go post conviction.” (See N.T. %-10/76 at 71-73)

Notwithstanding appellant’s statement to the contrary, on June 14, 1976, trial counsel filed (boiler-plate) post-verdict motions questioning the sufficiency of the evidence. However, by letter dated June 10, 1976, appellant wrote:

Sir;
I wish to have Attorney Ruane removed from my case & all proceedings that he files in my behalf, I wish to have dismissed, cause [sic] I do not desire to file motions for a new trial or arrest of judgment. I shall proceed by the post conviction act upon my own.
Thank you
/s/ Emmett Cooper
Witnessed 6-10-76
/s/ James L Smith
/s/ Dillard W Robinson Jr
(Record No. 7)

The aforementioned letter was stamped “JUN 15 1976” as the date upon which copies were sent to, e.g., the district attorney and the public defender.

By Order dated June 21, 1976, the trial judge dismissed without prejudice appellant’s PCHA petition on the ground that, since he had not been sentenced, placed on probation or parole, it was untimely filed. See 42 Pa.C.S.A. § 9543(2). A copy was sent to the appellant, the district attorney and the public defender on the same day. Thereafter, handwritten petitions for PCHA relief were filed by the appellant, and stamped as received by the Clerk of Courts of Fayette County, on July 27 (claiming court error in dismissing the prior PCHA petition as untimely), August 4 (questioning the manner and sequence in which the petitioner was indicted and tried), August 10 (requesting that the court dismiss the post-verdict motions filed by the public defender) and August 24 of 1976 (arguing that trial counsel violated various canons of ethics and disciplinary rules in trying a case he was not prepared to litigate).

The preceding culminated in the entry of an Order, dated December 20, 1976, granting trial counsel’s motion, filed “at the written request of the defendant, Emmett Cooper,” for leave to withdraw the post-verdict motions he had filed on Cooper’s behalf. Also, on the same date, a hearing was held on appellant’s petition that his counsel’s post-verdict motions be withdrawn. The court, to assure itself that such a request was knowingly and intelligently made, conducted a colloquy in which the following occurred:

THE COURT.....Mr. Cooper, when you are convicted by a jury, you have a right within 7 days of that conviction to file an appeal for a new trial and motion for arrest of judgment.
Now, what you are doing there — you are asking the Judge to review what happened and to release you or grant you a new trial. You are alleging in your motions that something happened that should not have happened that affect you rights, and you are asking the Court to do something about it.
Now, when you withdraw that motion for a new trial and arrest of judgment, it is exactly the same as if no motion had ever been filed, and you could not challenge at a later date the validity of the verdict of guilty; that is, what you are saying, you accept what the jury had done, and you are not finding any fault with it, or raising anything by way of defense which would cause them to set that verdict aside.
Do you understand that?
You answer, yes, so that we can put it on the record.
MR. COOPER. Yes sir.
$ ‡ $ $ $ $
THE COURT. Now, has anyone made any threats or promises to induce you to withdraw these motions?
MR. COOPER. No sir.
THE COURT. What was your grade level in school? How far did you go?
MR. COOPER. Graduated; 12 years.
THE COURT. So you are able to read and write without any problem?
MR. COOPER. Yes sir.
THE COURT. And you did write the letter which you directed to the Public Defender, Mr. Ruane, asking him to file a petition to withdraw your motion for a new trial and motion for arrest of judgment?
MR. COOPER. Yes sir.
THE COURT. If I understand then, you are asking for this leave to withdraw, without any pressure and coercion, because this is what you believe yourself- you want to do?
MR. COOPER. Yes sir.
THE COURT. Very well, the Court will permit the withdrawal of the motions.
(N.T. 12/20/76 at 4 & 6)

On January 6, 1977, appellant was sentenced to a term of imprisonment of from three (3) to six (6) years at the State Diagnostic and Classification Center at Huntingdon, Pennsylvania. No appeal was taken therefrom. However, on January 26, 1977, appellant filed two pro se PCHA petitions arguing, in essence, that: 1) he was illegally sentenced; 2) trial counsel was incompetent; 3) the trial court refused the petitioner the right to present relevant evidence; 4) a Commonwealth witness perjured himself; 5) “The Court and Public Defender Ruane prevented defendant from appealing his conviction[;]” 6) the jury was improperly empanelled because no blacks were members; 7) the public defender initially appointed to represent the accused should not have been replaced by new counsel from the same office; 8) irrelevant evidence was permitted to be introduced at trial by the court; 9) the charge to the jury prejudiced the accused on the question of credibility; 10) a mistrial should have been granted when evidence of the accused’s prior record was introduced at trial; and 11) the evidence was insufficient to sustain his conviction.

Private counsel was appointed for the appellant, but, after said counsel became associated with the district attorney’s office of Fayette County, a continuance was granted by the court for the purpose of appointing new counsel. However, the record does not reveal the appointment of new counsel until after the appellant had filed his seventh pro se PCHA petition on April 20, 1977, wherein he alleged the ineptness of trial counsel for, inter alia, ill-advising him in regard to “appellate and Post Conviction ... appeal ..., in relating to petitioner that the motion for new trial could be withdrawn and re-submitted by petitioner with additional issues.” Also, appellant complained that trial counsel “did cause through his actions ... the unfair and unjust withdrawal of the timely appeal.” (Appellant’s April 20, 1977 pro se PCHA petition at Points 5 & 7) Thus, appellant thought he “should be granted his right to appeal Nunc Pro Tunc.” Id. at Point 14.

Following the assignment of private counsel, a hearing was held and appellant had his appeal rights re-instated along with the opportunity to file post-verdict motions nunc pro tunc. In accordance therewith, private counsel filed post-verdict motions on June 2, 1977. Nonetheless, before the motions could be ruled upon, the appellant filed his eighth PCHA petition in which he re-stated most of the allegations appearing in his other petitions, including the argument that he did not want his attorney to file post-verdict motions because he “wish[ed] to proceed under the Post Conviction Act, by filing a Post Conviction.” (Appellant’s June 14, 1977 pro se PCHA petition at Point 7) Appellant also requested the appointment of counsel to represent him.

On June 27, 1977, private counsel filed a petition seeking leave to withdraw on the grounds that: 1) appellant wanted him to file “a Petition to Show Cause why the sentence should not be vacated” and he declined to do so because there was “no such Motion known or available to counsel[;]” and 2) appellant “ha[d] indicated a dissatisfaction with the manner in which counsel ha[d] been handling the case.” (Record No. 28) The petition to withdraw was granted on the date it was filed. However, there is no record evidence of the lower court’s disposition of appellant’s eighth PCHA petition. This is reinforced by a letter dated July 1, 1977, accompanied by a 12-point document, in which the appellant asks to be advised of the name of the new attorney who replaced counsel who had withdrawn so he could “appeal[ ] the conviction” in his case. Again, there is no evidence of record to indicate the manner in which appellant’s request was dealt with by the court.

It seems that appellant had to resort to the filing of a ninth pro se PCHA petition on July 28, 1977 to obtain any action. He asserted therein that prior counsel was ineffective for not availing the petitioner the opportunity to review the post-verdict motions filed, so that he could be assured that “vital issues” were included in said motions in order “to afford petitioner a through [sic] and meaningful appeal.” (Appellant’s July 28, 1977 pro se PCHA petition at 2, Point 1)

By Order dated August 9, 1977, appellant’s July 28 PCHA petition was dismissed on the ground that appellant’s nunc pro tunc post-verdict motions were still “pending” before the same court. (Record No. 32) Notwithstanding this fact, the trial court, by the time the appellant had filed two writs of habeas corpus — one on September 23, 1977 and the other on June 12, 1978, had not yet entered a ruling on the merits of the post-verdict motions. This is confirmed in appellant’s first writ, which alleged that the trial court’s denial and dismissal of his various petitions was tantamount to “dictating how petitioner must appeal his conviction,” i.e., the post-verdict motion route or the PCHA course. (Record No. 33) The second writ echoed appellant’s sentiments; to-wit:

... that his appeal rights have and are being denied unjustly by the inordinate delay caused by the courts ... [in] fail[ing] to render a decision on petitioners [sic] motion for arrest of judgement [sic] and new trial____ The delay is further hindering petitioner from further appellate review ... Rule 1123 of Pa.R.Crim.P., clearly states that argument shall be heard promptly after filing of motions for arrest of judgement [sic] and new trial. ... That a period of over one (1) year has elapsed since the filing of the motion is clearly an unjust inordinate delay created by the court depriving petitioner of his right to proper appellate review____

(Record No. 34 at page 2) (Emphasis in original)

In response, the court issued an Opinion and Order on July 19, 1978 dismissing appellant’s habeas corpus action. In doing so, the court wrote, in relevant part:

The defendant ... at a post-conviction hearing on April 14, 1977, informed the Court that he wished to go through with his motions for new trial; and the Court granted him the right to file the same. Thereafter, June 1, 1977, motions for new trial were filed by court-appointed attorney, Donald McCue. Subsequent to that, on July 26, 1977, Emmett Cooper then filed an affidavit in writing requesting the Court to dismiss his motions for new trial, which was again done by the Court.

(Record No. 35 at page 2) (Emphasis added)

We deem it appropriate to make two points at this stage of the discussion. First, there is no record evidence to substantiate the court’s remarks in the July 19, 1978 Order that appellant’s request to have his post-verdict motions dismissed was granted. This would seem to be consistent with appellant’s complaint in his two writs concerning the court’s delay in ruling on his post-verdict motions, at least as of the date of the second writ filed June 12, 1978. Moreover, appellant’s letters to the Clerk of Courts of Fayette County dated May 4, 1979, May 13 and 26 of 1981 indicate that he (appellant) “lack[ed] ... knowledge concerning the ... status” of his post-verdict motions. (Record No. 38)

Second, it seems incongruous that, as recounted in the July 19, 1978 Order, appellant’s July 16, 1977 request to withdraw his post-verdict motions was granted, yet the same judge issued a subsequent Order on August 9, 1977 reading that appellant’s “motions [wejre pending in th[e] Court.” (Compare Record No. 32 with Record No. 35)

Since appellant’s efforts to discover the status of his motions proved fruitless, he resorted to the use of a tenth PCHA petition on May 8, 1981. Therein, he alleged that “counsel’s [sic] were all ineffective”, and he had yet to receive “the alleged order dismissing his motions for new trial & arrest of judgement [sic].” (Appellant’s May 8, 1981 pro se PCHA petition at 3) All of this, appellant argued, impaired his ability to perfect an appeal. (Record No. 44 at page 3)

In accordance with appellant’s request, counsel was appointed and a hearing was held on October 15, 1981, following which the PCHA petition was “dismissed.”

Before this Court, counsel who represented appellant at the PCHA hearing asserts that Attorney McCue was ineffective for “failing to protect APPELLANT’S appeal rights from the allowance of the withdrawal of the second set of post trial motions ... [and,] by failing to notify APPELLANT of the allowance of the withdrawal, the Court abridge[d] his right to appeal.” (Appellant’s Brief at 6) The Commonwealth counters that a “careful review of the record findings of the PCHA Court” will substantiate the absence of any evidence to show the ineffectiveness of counsel. (Commonwealth’s Brief at 4) We agree with the Commonwealth as to the manner in which the record is to be scrutinized (“carefully”), but we disagree with the conclusions drawn therefrom by the Commonwealth and the PCHA court. Rather, a “careful” examination of the entire record evidences certain inconsistencies that discount the likelihood that appellant knowingly and intelligently waived his right to appeal. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

To buttress its position, the Commonwealth directs us to a portion of the PCHA hearing in which prior counsel for the appellant read into the record the text of a letter purportedly sent to the appellant at Huntingdon; to-wit:

[Attorney McCue:]
A. ... I sent a letter to Mr. Cooper advising him that he should obtain another attorney to represent his interests since I was withdrawn.
[Attorney Fitzsimmons — appellant’s PCHA counsel:]
Q. You so advised Mr. Cooper that he should retain counsel?
A. I did that by letter directed to him at Huntingdon. “June 28, 1977. Dear Mr. Cooper: On June 27, 1977 Judge Cicchetti signed an order authorizing myself to withdraw as counsel in connection with your post-conviction and appeal. I would suggest that you immediately contact the Court to obtain the services of another attorney so that you [sic] appeal may be processed without undue delay. I would be pleased to cooperate in any way with your new attorney and make available to him any and all papers which I may have, together with my legal and logical analysis of your case.”
Q. Was there a subsequent communication between you regarding the right to counsel?
A. I didn’t have any further communication with Mr. Cooper and I did not receive any communication from an attorney who purported to represent him.
(N.T. 10/15/81 at 16 & 17)

Even conceding, arguendo, that the appellant did receive the June 28, 1977 letter of Attorney McCue, there is record evidence that as of August 9, 1977 appellant’s post-verdict/conviction motions, filed by McCue, were still pending before the trial court. (Record No. 32) Thus, the pendency of the motions would preclude the appellant from perfecting a proper appeal, see Pa.R.Crim.P. 1123(c)(3) (“... only the grounds contained in such motions may be raised on appeal.”), which would be contra the commonality of purpose exhibited in all of appellant’s petitions and writs — i.e., to appeal his conviction be it via direct review or pursuant to the PCHA.

The point to be made is that, although appellant may have waived his right to be represented by counsel at the post-verdict stage by not responding to Attorney McCue’s letter, see Commonwealth v. Bolding, 315 Pa.Super. 444, 462 A.2d 278 (1983); Commonwealth v. Ross, 289 Pa.Super. 104, 432 A.2d 1073 (1981), the record is anything but clear as to whether the court granted withdrawal of the motions filed on behalf of the appellant and gave him notice of same. If such had been the case, the time-clock for the filing of an appeal would have commenced. See Pa.R.App.P. 903(a) (“... the notice of appeal ... shall be filed within 30 days after the entry of the order [or judgment] from which the appeal is taken.”). Absence of this fact from the record precludes this Court from holding that the appellant waived his right to appeal. Stated otherwise, “the record of the PCHA hearing leaves no doubt that the Commonwealth introduced no evidence to show that appellant waived his right to appeal ____” Commonwealth v. Porta, 297 Pa.Super. 298, 302 n. 3, 443 A.2d 845, 847 n. 3 (1982), petition for allocatur denied September 1, 1982. In fact, post-verdict counsel admitted that appellant “refused to sign [his] motion to withdraw as counsel [so he] submitted it to the Court” and secured an order allowing his withdrawal (N.T. 10/15/81 at 15-16)

Further, we find that the PCHA court’s quizzing the appellant concerning his being advised of the consequences of withdrawing his post-verdict motions at the time of trial to be of no moment on the issue of waiver here, since the appellant had his right to file post-verdict motions reinstated (and, thus, a second opportunity to pursue an appeal) after his initial waiver following trial by the same judge that was ruling upon the merits of his most recent PCHA petition.

Accordingly, after “carefully” reviewing the record, we conclude that the PCHA court erred in dismissing appellant’s petition. To remedy the error, we direct that the appellant, on remand, be afforded the opportunity to have his post-verdict motions filed and ruled upon, with the aid of counsel if he so wishes. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); see also Commonwealth v. Stackpole, 275 Pa.Super. 255, 418 A.2d 709 (1980).

Order reversed and the case is remanded to have appellant’s post-verdict motions decided. Jurisdiction is relinquished.

LIPEZ, J., concurs in the result.

      . Appellant also was charged with attempted burglary and criminal mischief, both of which were dismissed by the court at trial. (N.T. 6/9-10/76 at 5 & 55-56) (Record No. 4)

        . We wish to remark that, from our review of this tortuous record of events, the appellant seems to be under the misapprehension that he can side-step the filing of post-verdict motions and proceed along the PCHA route without running afoul of the waiver doctrine. Quite the contrary is true, unless, of course, appellant alleges “extraordinary circumstances” justifying his failure to act otherwise. 42 Pa.C.S.A. § 9544(b)(2).
      As Pa.R.Crim.P. 1123 specifically prescribes, "... only the grounds contained in such [post-verdict] motions may be raised on appeal.” Ergo, circumventing prescribed procedural rules exposes an accused to the likelihood of having issues not presented in post-verdict motions waived. See Commonwealth v. Grace, 473 Pa. 542, 552, 375 A.2d 721, 726 (1977); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Commonwealth v. Santana, 321 Pa.Super. 299, 468 A.2d 488 (1983).
      This Court suggests that on remand the appellant be specifically advised, in accordance with the dictates of Pa.R.Crim.P. 1123(b) & (c), “that waiving of post-verdict motion shall preclude [him from] raisfing] on appeal any issues which might have been raised in such motions.” In other words, “only the grounds contained in such [post-verdict] motions may be raised on appeal.” A failure to adhere to such procedural requirements is not rectified by filing, first, a PCHA petition.
      It must be remembered that the PCHA is not a substitute for the filing of post-verdict motions. Rather, it supplements "the availability of remedies in the trial court or on direct appeal.” 42 Pa.C.S.A. § 9542. Also, it is a vehicle by which an accused can assail his conviction on grounds that were not raised in the trial court or on direct appeal, provided, of course, the issue is not finally litigated or waived. 42 Pa.C.S.A. § 9544(a) & (b). If the issue "could have been raised ... at the trial ... or any other proceeding actually conducted ...,” the matter will not be treated, unless “extraordinary circumstances” are proven to justify the failure to raise the issue sooner. 42 Pa.C.S.A. § 9544(b)(2).


source: Caselaw Access Project

author: CERCONE, Judge: CIRILLO, Judge,

license: Public Domain

text:
    480 A.2d 1133
    COMMONWEALTH of Pennsylvania v. Donald Anthony GARRITY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 8, 1983.
    Filed July 6, 1984.
    Petition for Allowance of Appeal Granted Feb. 21, 1985.

      Edward J. Bilik, Assistant Public Defender, Greensburg, for appellant.
    Judith Earns Ciszek, Assistant District Attorney, Greens-burg, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and CERCONE, JJ.
   CERCONE, Judge:

This case comes to us on a denial of Donald Anthony Garrity’s Post Conviction Hearing Act petition. He and a co-defendant, John Anthony Coccioletti, were found guilty of murder in the third degree by a jury and each was sentenced to terms of imprisonment of from three to ten years. Both defendants perfected their consolidated appeals before the Supreme Court of Pennsylvania which affirmed their judgments of sentence. Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981) (per Larsen, Justice; Roberts, C.J. concurring in result; Flaherty, J. dissenting). Now, pursuant to the Post Conviction Hearing Act, appellant asserts that his trial counsel was ineffective in three respects: in failing to take measures to ensure that a certain statement, exculpatory to appellant, but hearsay as to his co-defendant, would be admitted into evidence; in failing to advise appellant of the factors to consider in deciding whether to testify in his own behalf; in failing to challenge the information filed in appellant’s case because of the rubber stamp facsimile of the district attorney’s signature. Our review of the record in this case persuades us that there is indeed merit to appellant’s contention pertaining to the fact that he did not testify at trial. Therefore, we reverse and remand for a new trial.

The case against Garrity and Coccioletti was circumstantial. The testimony at trial established the following. They had been drinking heavily, so much so that one Eckels, a friend and an off-duty policeman, drove them home to Coccioletti’s cabin, in a rural area of Westmoreland County. Eckels also took the keys to their vehicles when he left them. Eckels drove to Seven Springs, about 10 minutes from Coccioletti’s cabin, when he received a phone call from Garrity the appellant. Garrity told Eckels that John [Coccioletti] was very drunk; “you better come down. John’s going crazy. He took the .44 and went outside.” It is this statement that was successfully challenged as hearsay at trial as to co-defendant Coccioletti by his attorney. This same statement was admitted at the preliminary hearing over the same objection.

Before Eckels arrived back at the cabin, another friend, one Pankopft, stopped at the cabin to ask Garrity and Coccioletti if they wanted to get breakfast. This was at approximately 2:15 a.m. When the three men had driven a few hundred feet from the entrance to the cabin, on County Line Road, Pankopft noticed that a truck had wrecked into a tree at the side of the road. People had begun to gather, but Pankopft continued down the road. At this time, Coccioletti remarked that he felt somewhat responsible since he threw an M-80 (firecracker) at the truck. (This statement was objected to by both defense counsel, but was admitted.) Within minutes they arrived at the restaurant, but as soon as they ordered, Garrity received a phone call from Eckels. Eckels testified at trial over objection, that he asked Garrity whether they had been involved in any incident, to which Garrity answered “no”. Eckels told them to return to the cabin.

The three men got into the car, with Garrity in the back seat, and Coccioletti and Pankopft in front. Pankopft testified at trial that he had driven a short distance when Garrity asked, “What are we going to do with the guns.” Pankopft was then instructed to pull off the road, which he did. Garrity and Coccioletti were talking to each other in loud excited voices. Coccioletti produced a revolver, opened his door, and emptied the shells from it. Pankopft resumed driving when Garrity repeated again, “what are we going to do with the guns?” (These statements by Garrity were also admitted over objection.) Coccioletti answered, “We could say they were in Jeannette.” The driver then pulled into a driveway since the conversation in the car consisted of the urgency of getting the guns out of the car. At this point, Garrity passed an automatic weapon to Coccioletti who left the car with the guns and placed them under a tree. They then proceeded to Coccioletti’s residence. About ten or fifteen minutes after arriving there, Garrity asked Pankopft to go back and retrieve the guns. By this time, Eckels returned to the cabin, having been at the site of the wrecked truck. He told Coccioletti and appellant that there was a man dead in the truck from what appeared to be a gunshot wound. Coccioletti responded — and this statement was admitted over objection of counsel — that they had been shooting across the roadway, but that the only possible way they could have hit anyone was by a ricochet. The evidence established that neither defendant knew the victim. Appellant and Coccioletti were arrested later that morning and charged with the murder of Dale Clarence Clawson, the driver of the truck.

Appellant argues that his statement to Eckels, “you better come down. John’s going crazy. He took the .44 and went outside” is the most powerful piece of evidence available to him in that it took place prior to the shooting and enlisted the aid of a close friend who happened to be a police officer. Appellant contends that it shows that a person conspiring to commit a crime would not ask for help from a police officer. In fact, it is the only exculpatory evidence available to counsel for appellant. It was omitted only because it was hearsay as to Coccioletti. Thus, appellant argues that his trial counsel was ineffective in that he should have been on notice as to the existence of this statement and to the fact that counsel for the co-defendant would object at trial, as he did at the preliminary hearing. (Appellant’s trial attorney was hospitalized at the time of the preliminary hearing; an associate represented appellant at that proceeding.) Appellant maintains that his attorney should have either requested that the reference to Coccioletti be redacted to ensure its admission, or, if redaction were impossible, that he should have filed a pre-trial motion for a severance. Appellant also urges that he himself could have introduced that statement had he testified at trial and that counsel’s election not to present a defense constituted ineffectiveness of counsel.

Counsel is constitutionally ineffective if he fails to raise a claim of arguable merit and it is shown further that such a course of action had no “reasonable basis to effectuate his client’s interests.” Commonwealth v. Hubbard, 472 Pa. 259, 277-78, 372 A.2d 687, 695-96 (1977); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604-05, 235 A.2d 349, 352 (1967). Since this test requires that we examine the approach employed by counsel in light of the available alternatives, a finding of ineffectiveness should never be made unless the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized. Id.

At the PCHA hearing, trial counsel for appellant was asked to explain his strategy in proceeding with a joint trial. He related serious discussions with counsel for the co-defendant, a close friend of his.

Well, it was a very serious discussion, and very concentrated, because it was our feeling, frankly, that since they weren’t charged with conspiracy, and the facts as we understood them, [it] was our feeling that the Commonwealth really couldn’t proceed to trial, or if they did, they wouldn’t be able to prove the case.
I felt we had a very strong case, talked about severance, but ...
they [appellant and his father] seemed to have implicit or explicit trust in me, and whatever I determined, ... it was okay with them at the time, and I felt frankly that the case would be a demurrable case, or we would certainly be able to get it thrown out of Court.

As the PCHA court, which also presided over the trial, explained in its opinion,

[W]hile the so called exculpatory statement of petitioner may have tended to place all the blame on the co-defendant Coccioletti at the time the statement was made, the other statements ... would have been admissible in a joint or separate trial, [and] were so damaging to the petitioner that counsel could reasonably have decided that the only hope of an acquittal was to vigorously pursue that Sixth Amendment confrontation challenges [Bruton v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) ] to all the statements with the hope that the Trial Court and/or the Appellate Courts would conclude they were inadmissible.

Thus, what counsel hoped to do in pursuing a joint trial was to keep all of the statements out on the authority of Bruton v. U.S., supra, at the risk of also excluding the exculpatory statements of appellant Garrity to Eckels over the phone. In hindsight, this strategy was flawed, since what actually happened, and what was affirmed on appeal, was the admission of all of the inculpatory statements and the exclusion of Garrity’s phone call as prejudicial hearsay as to Coccioletti. However, our inquiry must be whether at the time, a separate trial would have had arguable merit.

What appellant would have gained by his separate trial would have been the admission of his phone call to Eckels about Coccioletti going outside the cabin with a .44 either by unobjected-to testimony by Eckels or by his own testimony. However, the statements which tended to inculpate Garrity would also have been admissible. Nevertheless, the one item of evidence that could possibly have placed a doubt in the jury’s minds would have been presented to them. Thus, a separate trial would at least have insured the admission of the exculpatory evidence.

Having established the arguable merit of the foregone claim, our next inquiry becomes whether counsel’s strategy to pursue a joint trial, with hopes that Bruton would bar inculpatory statements, had a reasonable basis designed to promote Garrity’s interests. Counsel’s hopes stemmed from the fact that appellant and his co-defendant were not charged with conspiracy and, consequently, statements made after the shot had been fired, were not available to the Commonwealth, where it relied on a co-conspirator’s testimony exception to hearsay. After Commonwealth v. Coccioletti, supra, their strategy was shown to be erroneous. Their first presupposition as to the defendants not having been charged with conspiracy was not supported by Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975) and Commonwealth v. Weitkamp, 255 Pa.Super. 305, 386 A.2d 1014 (1978) petition for allowance of appeal denied. And their second contention, that the statements were made after the conspiracy had terminated with the death of Clawson, and thus were not admissible under the co-conspirators’ exception to the hearsay rule, was shown to be erroneous with the Supreme Court’s refinement of that exception in appellant’s direct appeal. That Court said:

“[although the co-conspirator exception to the hearsay rule has not been applied when the declarations are made after arrest and termination of the conspiracy, Commonwealth v. Ellsworth, 409 Pa. 505, 187 A.2d 640 (1963), the appellant’s declarations in this case were made prior to their arrest while the conspiracy was still in progress.” Coccioletti, 493 Pa. 103, at 113, 425 A.2d 387, at 392.

It appears, then, that until appellant’s direct appeal, explicit authority for the admission of the challenged statements in a joint trial arguably did not exist in Pennsylvania. For that reason, we cannot fault counsel for his strategy of pursuing a joint trial at least up to the point of the admission of the statements. Counsel cannot be expected to take actions unsupported by existing law. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981).

It is at this point that counsel’s recommendations to appellant that he not testify became critical. Trial counsel testified at the PCHA hearing that he never prepared Garrity to testify, never discussed any advantage to be gained by testifying, and, even after his strategy of keeping out the inculpatory statements was foiled, that he persisted in his belief that appellant should not testify “because I felt the record could be protected by no testimony.”

It has already been established that appellant’s testimony would have brought the substance of the Eckels’ phone call to the consideration of the jury. Thus, it would have had arguable merit. In addition, trial counsel stated that he never intended to have appellant testify and that appellant unquestioningly placed all of his trust in him and his strategy. However, trial counsel also admitted that appellant was bright and articulate. He was a college graduate. He had no prior criminal record and no prior inconsistent statements by which he could have been impeached. Thus, we are unable to find that counsel’s persistence in his strategy of not presenting a defense had any basis in appellant’s interests. This is so especially in light of counsel’s testimony that had appellant testified he would have denied shooting Dale Clawson and he would have denied agreeing with John Coccioletti to go shoot anyone. While the decision not to present a defense is a tactical one and will not be deemed ineffective stewardship if there is a reasonable basis for that decision, Commonwealth v. Rice, 456 Pa. 90, 318 A.2d 705 (1974), in the instant case, we are unable to discern the reasonable basis.

A person’s right to a fair trial and a meaningful defense strikes at the heart of due process of law. Commonwealth v. Kennedy, 451 Pa. 483, 305 A.2d 890 (1973). Balanced against this principle is an appellate court’s reluctance to second-guess counsel’s tactical decisions. For example, our Supreme Court refused to attribute ineffectiveness to counsel’s advice to appellant that he not testify in Commonwealth v. Spells, 490 Pa. 282, 416 A.2d 470 (1980). However, in that case, appellant had been convicted of a prior burglary, had uttered prior inconsistent statements, and had participated in a thorough colloquy with the court regarding his decision not to testify. In Commonwealth v. Roman, 494 Pa. 440, 431 A.2d 936 (1981), our Supreme Court found counsel afforded effective assistance to appellant in advising him not to testify at his second trial in that his testimony from the first trial could serve as an impeachment tool; the case against appellant was considered by counsel to be weaker than at the first trial owing to certain redacted prejudicial evidence, and, appellant’s testimony would expose him to cross examination on damaging evidence not presented by Commonwealth witnesses. .

It is our opinion that such factors as contributed to trial counsels’ reasoned advice not to testify in Spells and Rice, supra, are not present in the instant case. We find counsel was ineffective in failing to re-evaluate his strategy to advise appellant not to testify when appellant, by the facts of the case and the circumstances as they evolved at trial, had nothing to lose and something to be gained by his testifying on his own behalf. For counsel to have relied upon his chances of prevailing on appeal and to exalt keeping the record clean over the benefits that could have been gained by altering his strategy and letting appellant testify when his expectations regarding the statements were thwarted, belies any finding of effective assistance. Therefore, appellant is entitled to a new trial.

Appellant challenges, under the aegis of ineffectiveness of counsel for failure to raise it, the practice of the Westmoreland County District Attorney’s Office in executing appellant’s information by the initials of an assistant district attorney prior to the filing of proper authorization of record pursuant to 42 Pa.C.S.A. § 8931(i). He also challenges the fact that the District Attorney’s signature was “rubber stamped”. Moreover, appellant contends that a proper review of the facts of his case were not made simultaneous with the approval of the information as is required by Pa.C.S.A. § 8931(d). Although appellant has not specifically requested it, the remedy for a defective information is discharge. Thus, despite our disposition on the aforementioned issue, we are constrained to review this third argument of appellant. We do not agree with appellant, in that we conclude that he is entitled to no relief on this issue.

Testimony by the assistant district attorney, whose initials appear on the information, at the PCHA hearing established that his practice was to check informations for conformity with the statutes. He stated that he was unable to recall whether he made any independent review of the record prior to approving the information. However, he did testify that he was familiar with the facts of the case and had discussed segments of it with the assistant district attorney who conducted the preliminary hearing. The PCHA record further reveals that trial counsel was unaware of any defect in the information. Appellant urges that counsel should be deemed ineffective for failure to challenge the information pre-trial.

Our Supreme Court in Commonwealth v. Contakos, 492 Pa. 465, 424 A.2d 1284 (1981) resolved the question of whether a criminal information, which bears a rubber stamp facsimile signature of a district attorney with the manually inscribed initials of an assistant district attorney, has been “signed” for purposes of Pa.R.Crim.P. 225(b) and 42 Pa.C. S.A. § 8931(e). The Court held that the approval and initialling of the information by an assistant district attorney, along with stamped signature of the District Attorney, complies with our Rules and the Judicial Code. Id., 492 Pa. at 470, 424 A.2d at 1287. However, both Contakos and Commonwealth v. Levenson, 282 Pa.Superior Ct. 406, 422 A.2d 1355 (1980), make clear that where a rubber stamp is employed to represent a district attorney’s signature and an assistant initials the information near the stamped signature, the signature will be valid only if the requisite designation of authority for the A.D.A. has been filed with the clerk of courts pursuant to 42 Pa.C.S.A. § 8931(i).

The instant case involves the same county and same issue as that raised in the recent en banc case Commonwealth v. Allen Wayne Williams, 323 Pa.Superior Ct. 512, 470 A.2d 1376 (1984). There, this Court refused to grant a discharge of appellant on the grounds raised in this case, viz., the lack of a properly filed authorization with the clerk of courts by the district attorney’s designee. This court reasoned as follows:

The signature requirement of the Judicial Code, supra, is designed to assure the authenticity of an information and to guarantee that the district attorney has inquired fully into all facts and circumstances attendant to a particular case and has made a reasoned evaluation of the propriety of initiating criminal proceedings against a defendant. Commonwealth v. Levenson, supra, See, also Commonwealth v. Emanuel, 501 Pa. 581, 462 A.2d 653 (1983). We fail to perceive how these goals would be furthered in the instant case by quashing the information and discharging appellant simply because the Commonwealth filed the required designation of authority in a tardy manner. 323 Pa.Superior Ct. at 519-520, 470 A.2d at 1380.

In the instant case, when the actual designation was filed in the office of the clerk of courts is not of record. The lower court’s opinion, however, does describe the instant problem as arising prior to the filing. More to the heart of the reason for the designation is an inquiry into the review that was conducted. The assistant whose initials appear in the information, although admittedly somewhat bereft of a recollection surrounding his procedure in this case, ,did possess requisite knowledge of it to justify his approval of the information. Therefore, because a pre-trial motion challenging the information by trial counsel would have been to no avail, or at the most, would have warranted a re-filing of the information, we are unable to attribute ineffectiveness to trial counsel for his failure to so act.

For all of the above reasons, the order of the lower court is reversed; case is remanded for a new trial. Jurisdiction is relinquished.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge,

dissenting:

I respectfully dissent. I cannot agree with the majority’s holding that trial counsel’s advice to his client (appellant) not to testify at trial amounted to ineffective assistance of counsel.

At trial, counsel originally advised appellant not to testify when he thought he would be able to exclude certain statements of another witness which would tend to inculpate appellant. Although the inculpatory statements were admitted, counsel continued to recommend that his client not testify. Appellant was convicted of third degree murder.

The majority opinion holds that once the inculpatory statements of the other witness were admitted, counsel’s continued advice to his client not to testify was without reasonable basis. The majority reasons that: 1) the only available exculpatory evidence was that which could be elicited from appellant’s testimony; 2) counsel had “nothing to lose” and everything to gain by putting appellant on the stand.

I submit that the majority oversteps this Court’s function with respect to ineffectiveness claims because it judges effectiveness on the basis of an after the fact look at the success of counsel’s chosen strategy. This approach is unacceptable. In assessing claims of ineffective assistance of counsel “we must be wary not to weigh the actual results of the trial strategy.” Commonwealth v. Roman, 494 Pa. 440, 448, 431 A.2d 936, 939 (1981). We must look for the “reasonable basis” of a chosen tactic at the time it was implemented, not after it has failed. “Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decision had any reasonable basis.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 600, 235 A.2d 349, 353 (1967) (emphasis added).

My review of the facts in this rather bizarre case leads me to the conclusion that trial counsel’s basis for opting not to put appellant on the stand was most reasonable. The Commonwealth’s case was purely circumstantial and the evidence somewhat attenuated. Counsel chose to rest on what he thought was a weak case for the Commonwealth. He elected not to expose his client to cross-examination, which could lead to corroboration and exacerbation of the already admitted inculpatory evidence. See, Commonwealth v. Roman, supra (recognizing the inherent danger of exposing client to cross-examination). Counsel did not have “nothing to lose” as the majority suggests. Counsel informedly and deliberately weighed the risk of dangerous cross-examination against the possible exculpatory evidence that appellant had to offer. On the basis of this calculation, counsel recommended that appellant not take the stand. Although appellant was ultimately convicted, counsel’s advice was not unsound.

In addition to improperly assessing the basis of counsel’s trial strategy, the majority ignores the principle that the ultimate decision of whether to testify rests on the defendant. Commonwealth v. Rawles, 501 Pa. 514, 462 A.2d 619 (1983). Here, the record indicates that appellant was college-educated, intelligent and, moreover, that he was informed of his right to testify. There is no indication that appellant disagreed with counsel’s advice that he not take the stand. In such circumstances, counsel cannot be found ineffective. Commonwealth v. Rawles, supra. The consequences of failing to testify rest squarely on appellant’s shoulders.

For the foregoing reasons, and because I subscribe to the majority’s disposition of appellant’s remaining claims, I would affirm the order of the trial court.

      . 42 Pa.C.S.A. § 9541, et seq.

      . Appellant suggests that counsel should have made pre-trial application for severance, or, in the alternative, should have requested the trial court to redact Coccioletti, the co-defendant’s name from the statement in order to make it admissible.

      . Appellant relies on Commonwealth v. Young, 263 Pa.Superior Ct. 333, 397 A.2d 1234 (1979); in that case our Court discussed the particular problems inherent in a joint trial of co-defendants when statements by one are sought to be introduced which implicate the other. We referred to Bruton v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), in which the United States Supreme Court held that the Sixth Amendment Right to Confrontation is violated if a co-defendant’s confession, which inculpates the instant defendant, is used as evidence against the defendant.
      "The jury is thus not permitted to consider the nontestifying co-defendant’s confession in assessing the defendant’s culpability. Redaction, in which all testimonial references to anyone other than the declarant are omitted from the confession, has been approved as an appropriate method of protecting a defendant’s rights under Bruton. Commonwealth v. Johnson, 474 Pa. 410, 378 A.2d 859 (1977). It must also be recognized, however, that in certain instances a confession cannot be effectively redacted without prejudicing the declarant, (citations omitted.)” Young, supra, 263 Pa.Super., at 337, 397 A.2d at 1237.
      Given the context of the within challenged statements, redaction as the method to protect appellant’s interests would have been impossible. We will not even consider this option. But see Commonwealth v. Rawls, 276 Pa.Superior Ct. 89, 419 A.2d 109 (1980).

      . These include: Coccioletti’s statement about the M-80, which is inculpatory as to him; Garrity’s denial that they had been involved in any incident; Garrity’s twice questioning what they should do with the guns; and Coccioletti’s statement that they were shooting across the road.

      . These cases illustrate that the Supreme Court has extended the co-conspirator exception to admit declarations by “co-participants" in a crime even where conspiracy has not been charged or proven.

      . The dissent cites Commonwealth v. Rawles, 501 Pa. 514, 462 A.2d 619 (1983), for what it terms “the principle that the ultimate decision of whether to testify rests on the defendant." The footnote in Rawls which states that proposition relies on Commonwealth v. Good, 481 Pa. 529, 393 A.2d 30 (1978) and Commonwealth v. Boyd, 461 Pa. 17, 334 A.2d 610 (1975); those cases and the others which confront the complaints of a nontestifying defendant presume that he had been advised by his counsel, in his or her rightful role as advocate, of the advantages and disadvantages of testifying. The record in this case establishes that appellant was not so advised. Thus, it cannot be said that appellant made a decision not to testify.

      . In Commonwealth v. Turner, 309 Pa.Superior Ct. 330 n. 2, 455 A.2d 185 n. 2 (1983), this court stated:
      It should be noted that the Veneri [306 Pa.Superior Ct. 396, 452 A.2d 784 (1982) ] decision specifically found that failure to comply with the signature requirement of Pa.R.Crim.P. 225(b) was not so significant a breach as to justify the extreme remedy of discharge. In the instant case, the lower court noted that raising this issue pre-trial may well have been futile since "the net effect of a successful quashing of the information for lack of a signature, would be that the District Attorney would refile the information with the proper signature____”


author: WIEAND, Judge: McEWEN, Judge,

text:
    480 A.2d 1141
    Donald B. WILKINS v. George HEEBNER and B & K Industries, Inc., Appellants.
    Superior Court of Pennsylvania.
    Argued March 27, 1984.
    Filed July 13, 1984.
    Reargument Denied Sept. 18, 1984.
    Petition for Allowance of Appeal Denied Feb. 25, 1985.

      James F. Mangan, Philadelphia, for appellants.
    Ronald N. Rutenberg, Philadelphia, for appellee.
    Before BROSKY, WIEAND and McEWEN, JJ.
   WIEAND, Judge:

May a person who negotiates a lease for another but who lacks a real estate broker’s license maintain an action to recover a ten percent interest in a corporation allegedly promised to him as compensation for successful negotiation of the lease? We hold that such an action is barred by the provisions of the Real Estate Brokers License Act. An equity decree allowing recovery, therefore, must be reversed.

Donald Wilkins, a retired businessman, and George Heebner, who was actively engaged in the development of commercial real estate, were acquainted in the Philadelphia area but met again in Florida and became friends in 1971. In June, 1974, Heebner asked Wilkins to use his business acumen to obtain a favorable lease of undeveloped land in Abington Township, Montgomery County, which was then owned by Baederwood Center, Inc. Heebner offered monetary consideration for Wilkins’ services, but Wilkins declined the offer because of the adverse effects he believed such a payment would have on his social security benefits and income tax liability. It was then agreed that if Wilkins were able to negotiate a favorable lease, he would be compensated by a ten percent interest in the commercial enterprise which Heebner intended to place upon the leasehold estate. Wilkins conducted extensive negotiations throughout 1974 and, despite competing interests, was able to negotiate terms of a ninety-nine year lease acceptable to Heebner and the owner. Heebner formed a wholly owned corporation, known as B & K Industries, Inc., which entered a lease agreement with the owner on or about December 24, 1974. A shopping center was constructed on the leased tract, which, in 1980, produced rentals of $276,000. Despite this success, Heebner has steadfastly refused to assign or transfer to Wilkins any shares of stock of B & K Industries, Inc.

Wilkins commenced an action in equity against Heebner and B & K Industries, Inc. to compel the assignment of a ten percent interest in B & K Industries, Inc. and a payment of ten percent of the profits realized by the corporate enterprise. The chancellor, although aware of the provisions of the Real Estate Brokers License Act which proscribe actions for compensation by unlicensed real estate brokers, concluded that the Act had no application because Wilkins and Heebner had been engaged in a joint venture. Heebner and B & K Industries appealed. We are constrained to agree with appellants that the evidence does not support the chancellor’s finding of a joint venture. The evidence disclosed, rather, an agreement to compensate Wilkins for services rendered in negotiating a lease of real estate for Heebner. An action to enforce such an agreement is barred by statute.

Section 16 of the Real Estate Brokers License Act of 1929, 63 P.S. § 446, bars an action to recover compensation by an unlicensed “real estate broker” by the following language:

No action or suit shall be instituted, nor recovery therein be had, in any court of this Commonwealth by any person, copartnership, association, or corporation for compensation for any act done or service rendered, the doing or rendering of which is prohibited under the provisions of this act to others than licensed real estate brokers, unless such person, copartnership, association or corporation was duly licensed hereunder as real estate broker at the time of the doing of such act or the rendering of such service, j

See: Kusche v. Vulcanized Rubber & Plastics Co., 416 Pa. 364, 206 A.2d 40 (1965); Emerson C. Custis & Co. v. Penna. Salt Mfg. Co., 351 Pa. 148, 40 A.2d 481 (1945); Verona v. Schenley Farms Co., 312 Pa. 57, 167 A. 317 (1933); Boland v. Mullen, 304 Pa.Super. 415, 450 A.2d 749 (1982); Burke v. Israel, 264 Pa.Super. 286, 399 A.2d 779 (1979); Harrison v. Soffer, 221 Pa.Super. 275, 289 A.2d 752 (1972).

A “real estate broker” is defined by section 2 of the Act, 63 P.S. § 432(a), as follows:

(a) The term “real estate broker” shall include all persons, copartnerships, associations, and corporations, foreign and domestic, who, for another and for a fee, commission, or other valuable consideration, shall sell, exchange, purchase, or rent, or shall negotiate the sale, exchange, purchase or rental, or shall offer or attempt to negotiate the sale, exchange, purchase, or rental, or shall hold himself or themselves out as engaged in the business of selling, exchanging, purchasing, or renting of any real estate, interest in real estate, the property of another, whether the same shall be located within the State of Pennsylvania, or elsewhere, or shall collect or offer or attempt to collect rental for the use of real estate, the property of another____

This language establishes, and appellee does not contend otherwise, that one who, for a fee or other consideration, negotiates a lease on behalf of another is a real estate broker required by statute to be licensed. See generally: Burke v. Israel, supra; Kachulis v. George, 42 D. & C.2d 617 (1967). If Wilkins were part of a joint venture, however, his negotiations would not have been conducted “for another,” and the licensing provisions of the statute would have had no application. See and compare: Ludington v. Shelley, 2 D. & C.2d 404 (1954). See also and compare: Meitner v. State Real Estate Commission, 1 Pa.Cmwlth. 426, 275 A.2d 417 (1971). In such event, each joint venturer would have been both an agent for and a principal in the joint venture. Gold & Co. v. Northeast Theater Corp., 281 Pa.Super. 69, 73 n. 1, 421 A.2d 1151, 1153 n. 1 (1980).

What constitutes a joint venture is a question of law; but whether a joint venture exists is generally a question of fact. Keeler v. International Harvester Used Truck Center, 317 Pa.Super. 244, 246, 463 A.2d 1176, 1178 (1983); 46 Am.Jur.2d Joint Ventures § 7. The chancellor in this case found that the parties had formed a joint venture. We will disturb that finding only if the record fails to support it. See: Frowen v. Blank, 493 Pa. 137, 142, 425 A.2d 412, 415 (1981); Chatham Communications, Inc. v. General Press Corp., 463 Pa. 292, 297, 344 A.2d 837, 840 (1975); Hopkins v. Stepler, 315 Pa.Super. 372, 375, 461 A.2d 1327, 1328 (1983); Lynch v. Hook, 298 Pa.Super. 27, 30, 444 A.2d 157, 159 (1982).

An examination of the record in this case, however, does fail to reveal evidentiary support for the chancellor’s finding that the intention of the parties, as expressed in their agreement, was to engage in a joint venture. In Snellbaker v. Herrmann, 315 Pa.Super. 520, 462 A.2d 713 (1983), we said:

A joint venture is not a status created or imposed by law; it is a relationship voluntarily assumed and arising wholly from contract. 2 Williston on Contracts 557, § 318A (3rd ed. 1959). Whether persons have engaged in it must depend primarily upon their intention as expressed in their agreement and the construction they have placed upon it. “To constitute a joint venture certain factors are essential: (1) each party to the venture must make a contribution, not necessarily of capital, but by way of services, skill, knowledge, materials or money; (2) profits must be shared among the parties; (3) there must be a ‘joint proprietary interest and right of mutual control over the subject matter’ of the enterprise; (j) usually, there is a single business transaction rather than a general and continuous transaction.’’ McRoberts v. Phelps, 391 Pa. 591, 599, 138 A.2d 439, 443-444 (1958). A joint venture partakes in many ways of a partnership, the principal difference being that it usually, though not necessarily, applies to a single transaction instead of being formed for the conduct of a continuing business. West v. Peoples First National Bank & Trust Co., 378 Pa. 275, 281-282, 106 A.2d 427, 431 (1954).

Id., 315 Pa.Superior Ct. at 526, 527, 462 A.2d at 716 (emphasis added). In Pennsylvania, the law is clear that in order for a joint venture to come into existence, there must be a showing of a joint proprietary interest and a right of mutual control of the subject matter of the enterprise. Beavers v. West Penn Power Co., 436 F.2d 869, 873 (3rd Cir.1971) (Pennsylvania law); Tax Review Board v. Green, 409 Pa. 448, 452, 187 A.2d 572, 574 (1963); Waldman v. Shoemaker, 367 Pa. 587, 591-592, 80 A.2d 776, 778 (1951); McRoberts v. Phelps, supra 391 Pa. at 599 & n. 13, 138 A.2d at 443-444 & n. 13; Keeler v. International Harvester Used Truck Center, supra 317 Pa.Super. at 247, 463 A.2d at 1178; Snellbaker v. Herrmann, supra 315 Pa.Super. at 526, 462 A.2d at 716. See also: Nelson v. Serwold, 687 F.2d 278, 282 (9th Cir.1982); Sherrier v. Richard, 564 F.Supp. 448, 457 (S.D.N.Y.1983); Crest Construction Co. v. Insurance Co. of North America, 417 F.Supp. 564, 569 (W.D.Okla.1976); Moore v. Merchants & Planters Bank, 434 So.2d 751, 753 (Ala.1983); Northern Lights Motel, Inc. v. Sweaney, 561 P.2d 1176, 1187 (Alaska 1977); Sparks v. Republic National Life Insurance Co., 132 Ariz. 529, 540, 647 P.2d 1127, 1138, cert. denied, 459 U.S. 1070, 103 S.Ct. 490, 74 L.Ed.2d 632 (1982); First National Bank of Madi son v. Vason, 164 Ga.App. 309, 310-311, 297 S.E.2d 85, 87 (1983); Palin Mfg. Co. v. Water Technology, Inc., 103 Ill.App.3d 926, 932, 59 Ill.Dec. 553, 558, 431 N.E.2d 1310, 1315 (1982); Cupit v. Grant, 425 So.2d 847, 850 (La.Ct.App.1982); Shain Investment Co. v. Cohen, 15 Mass.App. 4, 8-10, 443 N.E.2d 126, 130 (1982); Delgado v. Lohmar, 289 N.W.2d 479, 482 (Minn.1980). Without evidence of a shared proprietary interest and right of control, there can be no joint venture. If proprietary control is vested in only one of two parties, the other may be an agent or an employee of the former, but there is no joint venture. See: Tax Review Board v. Green, supra 409 Pa. at 452, 187 A.2d at 574; Waldman v. Shoemaker, supra 367 Pa. at 591-592, 80 A.2d at 778.

In the instant case, there is not one iota of evidence that Wilkins and Heebner shared a joint proprietary interest in or right of control over the leasehold estate. Although it was agreed that Wilkins should receive a share of the profits from the development of the land for commercial purposes, the evidence is unequivocal that this agreement was intended to compensate Wilkins for his services and was not intended to create a right of control. Wilkins had been offered a monetary reward for his services, but he declined it for reasons personal to him. It was then agreed that he would receive a ten percent interest in the commercial enterprise being formed by Heebner in return for services if he were able to negotiate a lease satisfactory to Heebner. The form of this compensation for Wilkins’ services did not thrust him into a position of control. Heebner employed Wilkins as an intermediary, as an agent; he conferred upon him no decision making power and no power to accept or reject the terms and conditions of the lease. The right of control and the proprietary interest in the negotiated lease remained constantly with Heebner. The right to receive a percentage of future profits was undoubtedly the consideration bargained for when Wilkins agreed to lend his expertise to Heebner. Wilkins’ expectation of compensation in the form of an equity in Heebner’s commercial enterprise, however, did not create in Wilkins a proprietary interest or a joint right of control. See: Waldman v. Shoemaker, supra, 367 Pa. at 592, 80 A.2d at 778; Marcus v. Grant, 289 Pa. 1, 4, 137 A. 120, 121 (1927). Cf: Meitner v. State Real Estate Commission, supra; Ludington v. Shelley, supra.

The true nature of the relationship between the parties has been confirmed by admissions made by Wilkins in his pleadings and during his trial testimony. In paragraph 6 of his complaint, Wilkins asserted that “George Heebner authorized and employed plaintiff, Donald B. Wilkins, to negotiate on behalf of said Heebner for the long term rental of the said ... premises and agreed that in consideration for the successful performance of such services ... Wilkins would thereupon receive an interest of not less that 10% in any venture or lessee used by ... Heebner for the purpose of leasing these premises.” At trial, Wilkins testified that he had been “employed by Mr. Heebner ... to negotiate a lease ... for Mr. Heebner.”

We have reached a decision in this case only after careful consideration and searching reflection. We do not relish being part of a judicial determination which has the effect of enabling appellant to avoid a promise which he made and upon which appellee relied. The legislature has determined, however, that there are reasons of policy which require a uniform and strict enforcement of the licensing requirements imposed upon all who would perform the duties of a real estate broker. To insure such enforcement, the legislature has barred actions by unlicensed brokers to enforce agreements which may in every other respect be valid. If, in selected cases, the statutory ban against actions by unlicensed brokers seems too harsh and permitting of unjust results, the remedy rests with the legislature. Until the statutory ban is lifted or modified, the course of the judiciary is clear. We must enforce those laws which have been duly enacted by the legislative branch of government.

In this case, the statutory law is clear. Appellee, an unlicensed broker who negotiated a lease of real estate for appellant, cannot use the courts to enforce appellant’s promise to compensate him for services thus rendered. The decree of the chancellor, therefore, must be reversed and appellee’s action dismissed.

It is so ordered.

McEWEN, J., files a dissenting opinion.

McEWEN, Judge,

dissenting:

The excellent opinion of the majority very clearly reflects the awesome nature of the challenge here posed and quite persuasively concludes that the statutory law must here prevail over equity. I am unable, however, to accept the resulting unfairness or to endure the vision that any party is. above the law and any just cause is beyond redress.

The special facts of this case make dissent instinctively easy. More difficult is the task of composing a rationale for what amounts to the singular judicial modification of a statute. I am mindful of the admonition of Benjamin Franklin that ours is a government of laws and not of men but have no doubt that Citizen Franklin would have been quite quick to devise a solution to this dilemma and may very likely have coined a proverb to do so. Thus encouraged, may I first note that the instant action is a proceeding in equity and then recall two accepted certainties. First, it is a principle of Biblical authenticity that fairness is the standard by which human affairs should be conducted and to which disputes should be addressed. Second, it is undisputed that a statute — whether designed to serve society in general or, as here, to protect a limited group — is but a codification of the measure of fairness or equity to be applied in particular situations or to specific events. I, therefore, would urge that when the statutory prescription for equity produces grave injustice, it must bow to pervading fairness. In other words, while Themis, the goddess of justice, dearly loves all of her children, she would be quick to concede that equity demands the most care and must, therefore, receive the most protection. Thus, while I embrace the statutory law, I must here favor fairness.

As a result, I would order that appellee be compensated in accordance with the agreement of the parties.

      . May 1, 1929, P.L. 1216, § 1 et seq., 63 P.S. § 431 et seq. (as amended), repealed effective February 19, 1980 and replaced by the Real Estate Licensing and Registration Act, February 19, 1980, P.L. 15, No. 9, § 101 et seq., 63 P.S. § 455.101 et seq. (as amended).

      . Because of this conclusion, we have not considered appellants’ additional argument that appellee’s action is also barred by the statute of frauds contained in Article 8 of the Uniform Commercial Code, 12A P.S. § 8-319, now repealed and reenacted at 13 Pa.C.S. § 8319.

      . This section was repealed and substantially reenacted, effective February 19, 1980, by the Real Estate Licensing and Registration Act, February 19, 1980, P.L. 15, No. 9, § 302, 63 P.S. § 455.302.


author: SPAETH, President Judge:

text:
    480 A.2d 1146
    In re ADOPTION OF CRYSTAL D.R. Appeal of KATHLEEN and Harold R., natural parents.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1983.
    Filed July 20, 1984.
    Petition for Allowance of Appeal Denied Jan. 7, 1985.

      Louis M. Shucker, Reading, for appellants.
    John J. Speicher, Reading, for participating party.
    Before SPAETH, President Judge, and BROSKY and HOFFMAN, JJ.
   SPAETH, President Judge:

This is an appeal from an order terminating appellants’ parental rights to their daughter, Crystal. The order was entered on a petition filed by Crystal’s foster parents. We hold that with respect to a child entrusted to their care, foster parents have no standing to file a petition for termination of parental rights. We therefore reverse and remand for further proceedings.

Crystal was born August 4, 1974. On August 29, 1975, she was placed with Berks County Children and Youth Services as a dependent child. This was done on a petition filed by the agency. On August 24, 1976, the agency placed Crystal with appellees as foster parents. Appellees have had physical custody of Crystal since that time. The trial court found, and the record shows, that appellees have been “extraordinarily supportive” of Crystal, providing specialized care for certain physical and mental impairments, and that because of appellees’ “care and attention ... Crystal ... has made marked progress physically, mentally and emotionally.” Trial court slip op. at 4. On February 18, 1981, appellees filed a petition for termination of appellants’ parental rights, and on March 16, 1981, they filed a report of their intention to adopt Crystal. On November 18, 1981, after hearing, the trial court entered a decree nisi terminating appellants’ parental rights and awarding appellees custody of Crystal until such time as she was adopted. On June 6, 1983, the court entered an order dismissing appellants’ exceptions and making its decree nisi final.

On appeal, appellants make several arguments, but we need consider only their argument that as foster parents, appellees had no standing to petition for termination of parental rights.

§ 2512(a) of the Adoption Act, Act of Oct. 15, 1980, P.L. 934, No. 163, § 1, 23 P.S. §§ 2101 et seq., provides who may file a petition for involuntary termination of parental rights:

(a) Who may file. — A petition to terminate parental rights with respect to a child under the age of 18 years may be filed by any of the following:
(1) Either parent when termination is sought with respect to the other parent.
(2) An agency.
(3) The individual having custody or standing in loco parentis to the child and who has filed a report of intention to adopt required by section 2531 (relating to report of intention to adopt). 23 P.S. § 2512(a).

Thus, appellees had no standing to file their petition to terminate appellants’ parental rights unless they were “individual[s] having custody” of Crystal or “standing in loco parentis” to Crystal.

(1) Appelles argue that their physical custody of Crystal is “custody(( within § 2512(a)(3). However, “custody” in § 2512(a)(3) refers to legal custody, not merely physical custody. § 2531(a) provides:

(a) General rule. — Every person now having or hereafter receiving or retaining custody or physical care of any child for the purpose or with the intention of adopting a child under the age of 18 years shall report to the court in which the petition for adoption will be filed. (Emphasis added.)

§ 2531(b) provides, in part, that “[w]hen a person receives or retains custody or physical care of a child from an agency the report shall set forth.....” It is apparent from these provisions that “custody” in § 2531 means “legal custody”, for otherwise the term “physical care” would be surplusage. It follows that “custody” in § 2512 must also mean “legal custody”. American Steel and Wire Company of N.J. v. Unemployment Compensation Board, 161 Pa.Super. 622, 56 A.2d 288 (1948) (word in one section of statute to be construed to mean same thing in another section of statute).

Appellees also argue that they have “standing in loco parentis” within § 2512(a)(3). This appears to be a question of first impression, and yet we are satisfied that the answer is clear.

In Spells v. Spells, 250 Pa.Super. 108, 378 A.2d 879 (1977), we said:

Pennsylvania courts recognize that a person may “put himself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal adoption. This status, [known as ‘in loco parentis’] embodies two ideas: first, the assumption of a parental status, and second, the discharge of parental duties.” Commonwealth ex rel. Morgan v. Smith, 429 Pa. 561, 565, 241 A.2d 531, 533 (1968). “The rights and liabilities arising out of that relation are, as the words imply, exactly the same as between parent and child.” Commonwealth v. Cameron, 197 Pa.Super. 403, 407, 179 A.2d 270, 272 (1962); Young v. Hipple, 273 Pa. 439, 117 A. 185 (1922). Id., 250 Pa.Superior Ct. at 172, 378 A.2d at 881-82.

Plainly, foster parents, because they have physical custody of the child, are concerned with the child’s day-to-day needs, and therefore they do discharge many parental duties. However, it does not follow from this fact that they thereby assume a status of in loco parentis to the child, distinguished by “rights and liabilities ... exactly the same as between parent and child.” The reason that foster parents have physical custody of the child is that it would be impractical for the agency to care for the child. The agency, while transferring physical custody to the foster parents, remains responsible for the care of the child, and may at any time required by the child’s interests regain physical custody and terminate the foster parent’s relationship to the child. Thus, 42 Pa. C.S. § 6357 provides:

§ 6357. Rights and duties of legal custodian
A custodian to whom legal custody has been given by the court under this chapter has the right to the physical custody of the child, the right to determine the nature of the care and treatment of the child, including ordinary medical care and the right and duty to provide for the care, protection, training, and education, and the physical, mental, and moral welfare of the child, subject to the conditions and limitations of the order and to the remaining rights and duties of the parents or guardian of the child.

Nevertheless, the trial court held that here the evidence “was more than adequate to establish” that as foster parents, appellees had assumed the status of loco parentis to Crystal. Trial court slip op. at 8. In so holding, the court relied upon this court’s decision in D’Auria v. Lipasky, 197 Pa.Super. 271, 177 A.2d 133 (1962).

In D’Auria, the action was on an alleged agreement to return money. The plaintiff had been the defendants’ foster child. After she graduated from high school, at age 18, she did various odd jobs. At age 24, she left the defendants’ home and married. She alleged that she had saved some $7,000 at her odd jobs, and had given this money to the defendants upon their agreement to return it to her when she left their home or married. At the trial the defendants asked that the jury be charged that it should determine from the testimony whether they stood in loco parentis to the plaintiff, and be given appropriate instructions regarding the rights of persons standing in loco parentis to receive the earnings of an unemancipated child. The trial judge refused to give such an instruction, reasoning that since the foster parent/foster child relationship was a relationship created by law and under the supervision of the Juvenile Court, no private rights could accrue to foster parents. We reversed and ordered a new trial. We held that “the fact of placement [i.e., the placement of the plaintiff as a foster child with the defendants] is not conclusive ____ Although the fact of such placement may weigh against a finding that the defendants stood in loco parentis to the plaintiff, yet the ultimate determination of this question depends upon a consideration of all the facts.” Id., 197 Pa.Superior Ct. at 274, 177 A.2d at 134. After examining the testimony, we concluded that “there was evidence in the case ... which, if believed, would support a finding that the defendants stood in loco parentis to the plaintiff,” id., 197 Pa.Superior Ct. at 280, 177 A.2d at 137, and that the trial court should therefore have charged the jury as the defendants had requested.

We acknowledge that at first sight our statement in D’Auria, that “the fact of placement is not conclusive” against a finding that foster parents stand in loco parentis to the child, may seem to support the trial court’s conclusion that appellees are not precluded by reason of their being foster parents from standing in loco parentis to Crystal. However, general language must always be read in context, and reflection will show that D’Auria does not support the trial court’s conclusion.

To begin, in D’Auria we were not required to construe 23 P.S. § 2512. In 23 P.S. § 2512, the Legislature, in providing who may file a petition to terminate parental rights, said nothing about “foster parents”. Instead, it provided only that a petition may be filed by “[ejither parent”; “[a]n agency”; the individual “having custody”, which means, as discussed above, “having legal custody;” and the individual “standing in loco parentis”. 23 P.S. § 2512(a). Therefore, the only way to get from D Auria to 23 P.S. § 2512(a) is to reason that in D’Auria we used the phrase “standing in loco parentis” in the same way as the Legislature used it in 23 P.S. § 2512(a). That reasoning, however, would represent a non sequitur. In D’Auria we were examining the relationship between the foster parent and the child. Here, we are examining the relationship between the foster parents and the child’s parents. In D’Auria, we held that for purposes of asserting a claim against the child, the foster parents may stand in loco parentis to the child. This in no way suggests that for purposes of asserting a claim against the child’s parents, the foster parents may stand in loco parentis to the child. To state the matter abstractly: The statement that A may claim against B suggests nothing about whether A may claim against X. Nor is this an oversimplification. For when compared with each other, the relationship between foster parent and child and the relationship between foster parent and child’s parents are just as distinct as the relationship between A and B and the relationship between A and X.

We may therefore put D’Auria aside and turn to the problem at hand, which is whether the Legislature meant to include foster parents when it provided in 23 P.S. § 2512(a) that a petition to terminate parental rights could be filed by an individual “standing in loco parentis” to the child. The answer to this question becomes apparent when one considers the structure the Legislature has erected in its effort to protect children and further their wholesome development.

The essential feature of this structure is that it divides responsibility for the child’s welfare. In the usual case— and this case represents the usual case — this division of responsibility is among three parties: the child’s parents; the agency; and the foster parents. The resulting relationships have been described by the United States Supreme Court in Smith v. Organization of Foster Families, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977), and while the Court was describing the foster care system in New York, it could as well have been describing the foster care system in Pennsylvania. Said the Court:

The New York system divides parental functions among agency, foster parents and natural parents, and the definitions of the respective roles are often complex and often unclear.[ ] The law transfers “care and custody” to the agency, ... but day-to-day supervision of the child and his activities, and most of the functions ordinarily associated with legal custody, are the responsibility of the foster parent.[] Nevertheless, agency supervision of the performance of the foster parents takes forms indicating that the foster parent does not have the full authority of a legal custodian.[ ] Moreover, the natural parent’s placement of the child with the agency does not surrender legal guardianship^ ] the parent retains authority to act with respect to the child in certain circumstances.20
20‘‘[A]lthough the agency usually obtains legal custody in foster family care, the child still legally ‘belongs’ to the parents and the parent retains guardianship. This means that, for some crucial aspects of the child’s life, the agency has no authority to act. Only the parent can consent to surgery for the child, or consent to his marriage, or permit his enlistment in the armed forces, or represent him at law.” Kadushin, 355. [A. Kadushin, Child Welfare Services (1961) ]. Id. at 826-28, 97 S.Ct. at 2100-2101 (some footnotes omitted).

We may add some detail to this description as regards “agency supervision of the performance of the foster parents.” Before a child may be placed in a foster home, the home must be approved by the agency. 35 Pa.Code § 3130.39; In Re Lowry, 317 Pa.Super. 304, 464 A.2d 333 (1983). If their home is approved, the foster parents are paid for providing care for the child. 42 Pa.C.S. § 6306; 62 P.S. § 704.1. The agency supervises the placement, which entails enforcing regulations governing the child’s health, § 3700.51, safety, § 3700,67, and discipline, § 3700.63, and in appropriate circumstances the agency may remove the child from the foster home, although the foster parents may appeal the removal, 35 Pa.Code § 3700.73. Finally, the agency is itself under the supervision of the Department of Public Welfare. 62 P.S. § 902; In Re Lowry, supra.

Thus, the Legislature has provided that the relationship between the foster parents and the child is by its very nature subordinate both to the relationship between the agency and the child and to the relationship between the child and the child’s parents.

We recognize that foster parents generally, and appellees in particular, may find this subordinate status painful. As the Supreme Court pointed out in Smith v. Organization of Foster Families, supra, there is an “intrinsic ambiguity” in foster care:

The warmer and more homelike environment of foster care is intended to be its main advantage over institutional child care, yet because in theory foster care is intended to be only temporary, foster parents are urged not [to] become too attached to the child in their care____ Indeed, the New York courts have upheld removal from a foster home for the very reason that the foster parents had become too emotionally involved with the child. In re Jewish Child Care Ass’n (Sanders), 5 NY2d 222 [183 N.Y.S.2d 65], 156 NE2d 700 (1959) .... Id. at 836, n. 40, 97 S.Ct. at 2105.

See also, J. Goldstein, A. Freud & A. Solnit, Beyond the Best Interests of the Child (1973) at 24 (temporary nature of foster parent/foster child relationship “implies a warning against any deep emotional involvement with the child since under the given insecure circumstances this would be judged as excessive.”)

Nevertheless, foster parents may not by pleading their love for the child escape their legal status. For in defining the foster parents’ status as subordinate both to the agency’s and to the child’s parents’, the Legislature has in no sense acted arbitrarily. Quite to the contrary, the foster parents’ status reflects the Legislature’s conviction that if possible, a child should grow up with its parents. When under the Juvenile Act a child is found dependent, the court may transfer to the agency only “temporary legal custody” of the child. 42 Pa. C.S. § 6351(a)(2). The Legislature has recited that the purpose of this limitation is to “preserve the unity of the family whenever possible ...,” 42 Pa. C.S, § 6301(b)(1), and further, that this purpose is to be achieved “in a family environment whenever possible, separating the child from parents only when necessary for his welfare or in the interests of public safety,” 42 Pa.C.S. § 6301(b)(3). It is the foster parents’ responsibility to help to achieve these purposes — not to subvert them. When foster parents enter into their relationship with the child, they know that the relationship is temporary; that the agency has the authority to remove the child; and that the parents have the right to visit the child. 55 Pa.Code § 3700.37. In addition, before the placement the agency prepares a family service plan specifying one of the following goals: 1) return of the child to the child’s own home; 2) placement in the home of another relative; 3) adoption; 4) placement with legal guardian; 5) independent living; or 6) long-term placement. 35 Pa.Code § 3130.67. So that the plan may be realized, the foster parents must cooperate with both the agency and the child’s parents. In approving a foster home, therefore, the agency must consider, among other factors, the would-be foster parents’ ability to cooperate with the agency and to accept the relationship between the child and the child’s parents. 35 Pa.Code § 3700.64.

We therefore find the conclusion inescapable that the Legislature could not have intended to include foster parents when it provided in 23 P.S. § 2512(a) that an individual “standing in loco parentis to the child” could file a petition to terminate the parental rights of the child. For the relationship between foster parent and child is not distinguished by “rights and liabilities ... exactly the same as between parent and child,” Spells v. Spells, supra, but is a subordinate relationship, supervised by the agency, and in turn by the court, responsible for placing the child. Were we to hold that foster parents could file a petition to terminate parental rights, we should ignore the Legislature’s intention. The structure that the Legislature has erected in an effort to ensure that “whenever possible,” 42 Pa.C.S. § 6301(b), children will grow up with their parents would be undermined, if not destroyed. Foster parents would be encouraged to become not supporters but rivals of the child’s parents. Agencies would be encouraged to neglect or even ignore their responsibilities. As one commentator has observed:

A foster parent who wanted to adopt would have great incentive to discourage efforts by the parents to retain contact with the child.251 They might also encourage the child to reject the parents, which can create conflict for the child resulting in emotional harm. In addition, social workers may have less incentive to work with the natural parents, especially if they believe that return home would be detrimental to the child, even if the home were “safe.”
251 If the number of parents wishing to adopt children exceeds the number of children available for adoption, people may become foster parents in the hope of adopting the child.
If one assumes that the great majority of children will return home, then we should favor foster parents who can convey warmth to the child without developing deep attachments which would cause them to desire to adopt the child. On the other hand, if one assumes that most children will not be returned, then it would be better to place a child with potential adoptive parents in the interest of minimizing the number of moves the child must undergo. Yet this runs the risks discussed in the text. Estimating, at the time of placement, the likelihood of eventual return is difficult and might simply result in self-fulfilling prophecies. The most the system can hope for is foster parents who wish only to be foster parents but who will adopt the child if return becomes impossible. See Gill, [The Foster Care/Adoptive Family: Adoption for Children Not Legally Free, 54 Child Welfare 712 (1975) ]; Goldstein, [Why Foster Care — For Whom For How Long? 30 Psychoanalytic Study of the Child 647 (1975)].
Wald, State Intervention on Behalf of "Neglected Children”: Standards for Removal of Children from Their Homes, Monitoring the Status of Children in Foster Care, and Termination of Parental Rights, 28 Stan L. Rev. 623, 685 (1976).

The present case, indeed, illustrates these very dangers. The foster parents have become rivals of the child’s parents — to the point of seeking an involuntary termination of the parent’s parental rights. And so far as we can determine from the record, the agency has neglected its responsibilities. For it has taken no position, at least on the record before us, regarding whether the termination petition should be granted: no one appeared for the agency at the hearing on the petition before the trial court, and the agency has filed no brief with us.

If the system of foster care is to work as intended by the Legislature, the agency may not thus stand by. It is the agency that is charged with the responsibility of seeking a permanent home for the child, not the foster parents. To ensure that the agency does not neglect this responsibility, the Department of Public Welfare’s regulations provide that the agency must every six months either petition a court to conduct a placement review or conduct an administrative review. The review must:

(A) determine the continuing necessity for and appropriateness of the placement;
(B) determine the extent of compliance with the service plan;
(C) determine the extent of progress made toward alleviating the circumstances which necessitated the original placement; and
(D) project a likely date by which the goal for the child might be achieved. 55 Pa.Code § 3130.71(l)(ii).

At the same time that it petitions the court to conduct a placement review,, the agency must petition the court to conduct a dispositional review hearing. § 3130.72(a). § 3130.72(b) provides:

(b) A petition for a dispositional review hearing filed by the county agency must request the court to determine whether the child should be:
(1) returned to the parents;
(2) continued in foster care for a specified period;
(3) placed for adoption; or
(4) because of the child’s special needs or circumstances, continued in foster care on a permanent or long-term basis.

The purpose of these periodic reviews is to reduce the number of children in placement, § 3130.13, and to “ensure for each child in the Commonwealth a permanent, legally assured family which protects the child from abuse or neglect,” § 3130.11. Referring to similar review procedures in New York City, one commentator has observed:

Court review in New York City has ... demonstrated a positive impact on moving children out of foster care. Judicial reviews have been a useful systemic check against agency neglect. Their existence has countered the adage that the longer a child is in care, the more likely he or she will remain in care until the age of majority.
“Periodic Judicial Review of Children in Foster Care” 32 Juvenile & Family Court Journal 61 (1981).

In thus emphasizing the agency’s responsibility, we intimate nothing as to whether Crystal should be adopted, or whether some other provision should be made for her future, and if so, what sort of other provision. We only hold that as foster parents, appellees had no standing to petition the trial court to terminate appellants’ parental rights. Given that holding, the issue of what sort of provision should be made for Crystal is not before us. On remand, however, it will be the agency’s responsibility to determine what provision it believes should be made for Crystal, and then to petition the trial court accordingly.

The order of the trial court terminating appellants’ parental rights is reversed, and the case is remanded for further proceedings consistent with this opinion. Meanwhile, legal custody of Crystal is to remain with Berks County Children and Youth Services, and physical custody of her with appellees. Jurisdiction is relinquished.

      . Appellants’ other arguments are, generally stated, that appellees did not meet their burden of proof; that the trial court applied an incorrect standard on burden of proof; and that in certain respects the Adoption Act is unconstitutional.

      . As already noted, appellees filed their report of intention to adopt Crystal after they filed their termination petition. However, appellants do not challenge the timeliness of the report of intention to adopt.

      . Appellees claim that in the case of In Re Adoption of R.I., 468 Pa. 287, 361 A.2d 294 (1976), the foster parents had petitioned for termination of parental rights and that "[njowhere in the opinion was there any equivocation concerning the standing of the foster parents to petition the court to terminate the parental rights of the natural parents." Brief for Appellees at 13. Appellees are mislead, however, because the opinion refers only to the foster parents. The case was on appeal for the second time following remand. When one refers to the original appeal, at 455 Pa. 29, 312 A.2d 601 (1973), it becomes evident that the local agency joined in the petition for involuntary termination of parental rights. Id., 455 Pa. at 30 n. 1, 312 A.2d at 601 n. 1.

      . Providing a permanent home for the child does not necessarily exclude foster care. In some circumstances, as, for example, where the child retains strong ties to its parents but the parents are unable to care for the child, long-term foster care may be appropriate. Wald, supra at 690, 55 Pa.Code § 3130.72(b)(4); 42 U.S.C.A. § 675(5)(C), Adoption Act of June 17, 1980, P.L. 96-272. Indeed, counsel appointed by the trial court to represent Crystal argues that such placement would be appropriate here. Brief of Child, at 4.


text:
    July 3, 1984.
    479 A.2d 1091
    Commonwealth v. Inman, Appellant.
    Submitted May 22, 1984.
    Joseph S. Nescio, for appellant; Stuart B. Suss, Assistant District Attorney, for Commonwealth, appellee.
    Before DEL SOLE, MONTEMURO and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    479 A.2d 1091
    Schaible, Appellant, v. Home Insurance Co.
    Submitted May 22, 1984.
    James E. Delbello, for appellant; Edward J. Carney, Jr., for appellees.
    Before DEL SOLE, MONTEMURO and HOFFMAN, JJ.
   Order affirmed.


text:
    July 5, 1984.
    479 A.2d 1091
    Commonwealth v. Gliddon, Appellant.
    Petition for Allowance of Appeal Denied Jan. 7, 1985.
    Submitted June 6, 1984.
    Jonathan Blum, Assistant Public Defender, for appellant; Joseph Giebus, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, TAMILIA and HOFFMAN, JJ.
   Judgment of sentence affirmed.


text:
    479 A.2d 1092
    Commonwealth v. Morrow, Appellant.
    Submitted June 20, 1984.
    Carmela R.M. Presogna, Assistant Public Defender, for appellant; Ernest J. Disantis, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before TAMILIA, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    479 A.2d 1092
    Commonwealth v. Stuckwish, Appellant.
    Submitted June 21, 1984.
    John H. Corbett, Jr., Public Defender, for appellant; Robert L. Ebernardt, Deputy District Attorney, for Commonwealth, appellee.
    Before TAMILIA, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    July 6, 1984.
    479 A.2d 1092
    Bouikidis, Appellant, v. State Farm Ins. Co.
    Argued November 22, 1983.
    Allen L. Feingold, for appellant; Matthew Hanna, for appellee.
    Before MONTEMURO, WATKINS and CERCONE, JJ.
   The instant appeal is dismissed as interlocutory.


text:
    479 A.2d 1092
    Byrne v. Union Railroad Co., et al., Appellant.
    Argued April 10, 1984.
    Gerald C. Paris, for appellant; James F. Israel, for Gilmore, appellee; Louis C. Long, for Mercy Hospital, appellee.
    Before ROWLEY, TAMILIA and POPOVICH, JJ.
   Judgment affirmed.


text:
    479 A.2d 1093
    Commonwealth v. Andrews, Appellant.
    Submitted March 19, 1984.

      Ronald J. Sharper, for appellant; Jane Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and ROWLEY and BECK, JJ.
   Order affirmed.


text:
    479 A.2d 1093
    Commonwealth v. Baker, Appellant.
    Argued April 12, 1984.
    L. Edward Glass, for appellant; David Flower, Assistant District Attorney, for Commonwealth, appellee.
    Before ROWLEY, JOHNSON and POPOVICH, JJ.
   Judgment of sentence reversed and appellant awarded a new trial.

ROWLEY, J., filed a dissenting memorandum.


text:
    479 A.2d 1093
    Commonwealth v. Beck, Appellant.
    Submitted May 18, 1984.
    Andrew J. Achman, for appellant; Melinda G. Tell, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, OLSZEWSKI and ROBERTS, JJ.
   Judgment of sentence affirmed.


text:
    479 A.2d 1094
    Commonwealth v. Bell, Appellant.
    Petition for Allowance of Appeal Denied Jan. 9, 1985.
    Submitted March 19, 1984.
    Gail Marcus, for appellant; Jane Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and ROWLEY and BECK, JJ.
   The denial of the PCHA Relief is affirmed.

SPAETH, President Judge, concurred in the result.


text:
    479 A.2d 1094
    Commonwealth v. Blackwell, Appellant.
    Submitted May 4, 1984.
    M. Emmons Stivers, Assistant Public Defender, for appellant; Vram Nedurian, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before CIRILLO, DEL SOLE and POPOVICH, JJ.
   Order affirmed.

POPOVICH, J., concurred in the result.


text:
    479 A.2d 1094
    Commonwealth v. Blount, Appellant.
    Submitted December 9, 1979.
    Joel P. Trigiani, for appellant; Jane Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, BROSKY and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    479 A.2d 1094
    Commonwealth v. Brown, Appellant.
    Submitted May 4, 1984.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Edward F. Browne, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before CIRILLO, DEL SOLE and POPOVICH, JJ.
   Affirmed.


text:
    479 A.2d 1095
    Commonwealth v. Campbell, Appellant.
    Submitted March 26, 1984.
    Alphonse P. Lepore, Jr., Public Defender, for appellant; Gerald R. Solomon, District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BROSKY and MONTGOMERY, JJ.
   Judgment of sentence affirmed.

SPAETH, President Judge, concurred in the result.


text:
    479 A.2d 1095
    Commonwealth v. Campbell, Appellant.
    Submitted March 26, 1984.
    Linda R. Tallent, for appellant; William A. Johnson, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BROSKY and MONTGOMERY, JJ.
   Order affirmed.


text:
    479 A.2d 1095
    Commonwealth v. Carter, Appellant.
    Petition for Allowance of Appeal Denied Oct. 30, 1984.
    Argued March 29, 1984.
    Arthur T. Donato, Jr., for appellant; Sandra L. Elias, Deputy District Attorney, for Commonwealth, appellee.
    Before BROSKY, WIEAND and McEWEN, JJ.
   The judgment of sentence of the learned Delaware County Common Pleas Court Judge Melvin G. Levy is affirmed.


text:
    479 A.2d 1096
    Commonwealth v. Carter, Appellant.
    Petition for Allowance of Appeal Denied Nov. 7, 1984.
    Argued March 29, 1984.
    Arthur T. Donato, Jr., for appellant; Sandra L. Elias, Deputy District Attorney, for Commonwealth, appellee.
    Before BROSKY, WIEAND and McEWEN, JJ.
   The judgment of sentence of the learned Delaware County Common Pleas Court Judge R. Barclay Surrick is affirmed.


text:
    479 A.2d 1096
    Commonwealth v. Cathcart, Appellant.
    Submitted March 23, 1984.
    John H. Corbett, Jr., Public Defender, for appellant; Dara A. DeCourcy, Assistant District Attorney, for Commonwealth, appellee.
    Before POPOVICH, HOFFMAN and LIPEZ, JJ.
   Judgment of sentence vacated and case remanded for a new trial.