author: CAVANAUGH, Judge.

text:
    660 A.2d 621
    COMMONWEALTH of Pennsylvania, Appellant v. Edward C. SCHWER.
    Superior Court of Pennsylvania.
    Submitted Feb. 7, 1995.
    Filed June 23, 1995.

      Michael Streily, Asst. Dist. Atty., Pittsburgh, for Com., appellant.
    Kim W. Riester, Pittsburgh, for appellee.
    Before CAVANAUGH, JOHNSON and SAYLOR, JJ.
   CAVANAUGH, Judge.

This matter is presently before the court on the Commonwealth’s appeal from the order of April 22, 1994 of the Court of Common Pleas of Allegheny County which granted appellee’s petition for writ of habeas corpus and discharged appellee Edward Schwer. For the reasons which follow we vacate that order and remand to the lower court for further proceedings.

Edward Schwer was charged on June 7, 1993 with driving under the influence and summary offenses. After a preliminary hearing held on July 8, 1993, District Justice Richard McCarthy dismissed the criminal complaint against Mr. Schwer. The Commonwealth refiled the charges on July 22, 1993, again before District Justice McCarthy, who that day disqualified himself and requested that the administrative office for district justice courts assign another district justice to preside. On September 21, 1993 a second preliminary hearing was held, this time before District Justice Robert Kubit, who held the case over for trial. On October 4, 1993 appellee filed a petition for writ of habeas corpus which was denied on November 10, 1993. On January 25, 1994 appellee filed a motion for reconsideration of that order arguing that his constitutional rights were violated when the Commonwealth refiled previously dismissed charges in front of the same district justice who had originally dismissed those charges. The motion for reconsideration was granted, and appellee discharged, on April 22, 1994. This timely appeal followed with the Commonwealth arguing that:

PENNSYLVANIA CASE LAW DOES NOT PRECLUDE THE COMMONWEALTH FROM REFILING THE IDENTICAL CHARGES IN FRONT OF THE SAME DISTRICT JUSTICE.
ASSUMING ARGUENDO THAT THE COMMONWEALTH IS PRECLUDED FROM REFILING CHARGES IN FRONT OF THE SAME DISTRICT JUSTICE, PENNSYLVANIA CASE LAW WAS NOT VIOLATED BY OFFICER WINSTON’S REFILING, AS A DIFFERENT DISTRICT JUSTICE PRESIDED OVER THE SECOND PRELIMINARY HEARING.

Before we address appellant’s arguments we note the standard under which we review this appeal. Case law provides that a decision to grant a petition for a writ of habeas corpus will be reversed on appeal only for a manifest abuse of discretion. Commonwealth v. Lundberg, 422 Pa.Super. 495, 619 A.2d 1066 (1993).

It is well established that an abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will as shown by the evidence or the record, discretion is abused.

Commonwealth v. Moyer, 497 Pa. 643, 647, 444 A.2d 101, 103 (1982), quoting In re Garrett’s Estate, 335 Pa. 287, 6 A.2d 858, 860 (1939).

In its opinion to this court, the court below explained its reasons for granting appellee’s writ. The court stated that, since Pennsylvania appellate courts have held that the Commonwealth may seek to reinstate a dismissed charge by refiling the same charge before a different magistrate, and, since the Commonwealth in the instant matter refiled the same charges before the same district justice, the Commonwealth’s procedural error necessitated the grant of the writ. The court cited the cases of Commonwealth v. Jones, 429 Pa.Super. 601, 633 A.2d 185 (1993), alloc. denied, 538 Pa. 647, 647 A.2d 902 (1994) and Commonwealth v. Shoop, 420 Pa.Super. 606, 617 A.2d 351 (1992) in support of its ruling.

We have reviewed the above-cited cases. In Jones, a panel of this court affirmed a trial court’s order reassigning a different district justice to hear charges of driving under the influence being refiled against a defendant. In so doing this court specifically stated that the Commonwealth may seek to reinstate a charge dismissed by a magistrate by “re-filing the same charge before a different magistrate.” Id. at 607, 633 A.2d at 188.

In Shoop, another panel of this court reversed a trial court’s ruling which reassigned a case, for a second preliminary hearing, before the same district justice who had discharged a defendant after the defendant’s first preliminary hearing. This court stated that “where the Commonwealth in good faith alleges improper dismissal by a district justice, it must have the opportunity to bring the re-arrest before another district justice.” Id. at 610, 617 A.2d at 353.

While acknowledging the above-quoted cases, the Commonwealth argues that the holdings in these cases, and in the Pennsylvania Supreme Court case of Liciaga v. Court of Common Pleas of Lehigh County, 523 Pa. 258, 566 A.2d 246 (1989), (plurality opinion), were intended to expand, and not restrict, the rights of the Commonwealth on the refiling of previously dismissed criminal charges. Appellant claims that a close reading of the cases reveals that the court created an “additional avenue” for the refiling of dismissed charges.

We agree that the primary purpose of this court’s decisions in Jones and Shoop was to provide to the Commonwealth a procedure by which to seek a reassessment, by a different district justice, of charges dismissed after a preliminary hearing. A fair reading of the decisions in both cases reveals no intent by this court to limit the Commonwealth’s options on the refiling of dismissed charges. Additionally, the language relied on by the lower court, that charges are to be refiled before a different magistrate, does not, in our view, require the dismissal of charges filed before the same district justice. In fact, the cases do not provide for that remedy.

Additional support for our decision is provided by the case of Commonwealth v. Worrall, 415 Pa.Super. 478, 609 A.2d 851 (1992), wherein a panel of this court affirmed a judgment of sentence even after an appellant argued that the Commonwealth was precluded from refiling charges before the same district justice who had previously dismissed them. While first noting that after a defendant has been found guilty at trial any defect in the preliminary hearing is rendered immaterial, the court then stated that, contrary to the defendant’s allegations, the case of Liciaga did not require that “a second preliminary hearing be held before a different district justice.” The court further stated that it was “aware of no procedural rule which sets forth any such mandate.” Id. at 480, 609 A.2d at 852. Nor are we, and we find that the court below erred when it held that caselaw required the dismissal of the refiled charges against appellee.

We therefore hold that, while the Commonwealth may refile criminal charges before a different district justice than the one who has already dismissed identical charges, should the Commonwealth refile in front of the same district justice, dismissal of the charges and of the defendant for that reason alone is not mandated.

Accordingly, as we find that the court below erred when it granted appellee’s petition for writ of habeas corpus, that order is vacated and this matter is remanded to the Court of Common Pleas of Allegheny County for further proceedings.

Order vacated. Case remanded.

      . Due to our determination of appellant’s first claim, we need not address its second argument that the charges were refiled in front of a different magistrate since the filing officer was "well aware” that a second district justice would ultimately hear the charges and had no intention of allowing the charges to be heard by the same magistrate who had already dismissed them. We do note, however, that since it is clear that the officer did refile the charges in front of the same magistrate, his subjective knowledge and intent in so doing would appear to be irrelevant.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    660 A.2d 623
    DELAWARE VALLEY FACTORS, INC. v. Donald J. RONCA, Maryanne S. Ronca, and Frank J. Bianco, Trustee of the Donald J. Ronca and Maryanne S. Ronca Trust.
    Superior Court of Pennsylvania.
    Submitted April 18, 1995.
    Filed June 26, 1995.

      Thomas J. Maloney, Bethlehem, for appellant.
    Steven Goldman, Quakertown, for appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   WIEAND, Judge:

The issue before the trial court in this action of mortgage foreclosure was the validity of a mortgage executed by a trustee and creating a lien on trust property. The trial court, after hearing evidence, determined that the mortgage was valid as a matter of law and directed a verdict in favor of the foreclosing mortgagee. After review, we affirm.

On September 26, 1976, Donald J. Ronca and Maryanne S. Ronca executed an irrevocable trust agreement, subsequently recorded, for the benefit of their six children. The trust res included the Roncas’ residence at 1525 Moravia Street, Bethlehem, Lehigh County, and the shares of stock of Fountain Hill Millwork Co. The term of the trust was to end on September 23, 1989, when title to the trust property was to revert to Donald and Maryanne Ronca.

In 1988, while the trust remained in effect, Donald Ronca negotiated a loan of $125,000 from Delaware Valley Factors, Inc. (DVF) on behalf of Fountain Hill Millwork Co. As security, DVF required a mortgage on the Ronca residence. This mortgage was executed by Frank Bianco, the trustee, after DVF and the trustee’s lawyer had examined the trust instrument. The loan transaction was thereafter completed, and the proceeds of the loan were advanced.

The loan went into default in February, 1989, and an action of mortgage foreclosure was instituted in September, 1990. A default judgment was entered against all defendants on November 8, 1990, and the residence was scheduled for sheriffs sale on March 22, 1991. Prior to sale, however, the default judgment against Maryanne Ronca was stricken because of an improper service of the complaint. Thereafter, the foreclosure action against Maryanne Ronca was tried and resulted in the directed verdict presently before this Court for review.

A directed verdict may issue in a mortgage foreclosure action if the issue turns upon a question of law and not on a disputed fact. First Trust Co. v. Philadelphia Pure Rye Whiskey Distilling Co., 327 Pa. 145, 192 A. 393 (1937).

A motion for a directed verdict admits as true all facts and proper inferences from testimony which tend to support the opposing party’s case, and rejects all testimony and inferences to the contrary.
Morton v. Borough of Ambridge, 375 Pa. 630, 633, 101 A.2d 661, 662 (1954). Such a motion can properly be granted by a court only if the facts are clear and free,from doubt. Person v. C.R. Baxter Realty Co., 340 Pa.Super. 537, 540, 490 A.2d 910, 911 (1985). On a motion for directed verdict, the trial court must consider the facts in the light most favorable to the party against whom the motion is being made. Cooke v. Travelers Insurance Co., 350 Pa.Super. 467, 471, 504 A.2d 935, 936 (1986). It is not within the province of the trial court to weigh conflicting evidence when ruling upon a motion for directed verdict as credibility is a jury question. Person v. C.R. Baxter Realty Co., supra, 340 Pa.Superior Ct. at 541 n. 2, 490 A.2d at 912 n. 2.

Lilley v. Johns-Manville Corp., 408 Pa.Super. 83, 103, 596 A.2d 203, 213 (1991). See also: Thompson v. Maryland & Pa. R.R. Preservation Soc’y, 417 Pa.Super. 216, 222, 612 A.2d 450, 453 (1992).

A trustee acts in a representative capacity, and third parties dealing with a trustee are bound to be cognizant of his or her powers. Spivak v. Bronstein, 367 Pa. 70, 74-75, 79 A.2d 205, 207 (1951); Clark v. Provident Trust Co. of Philadelphia, 329 Pa. 421, 426, 198 A. 36, 39 (1938). See also: Kenworthy v. Equitable Trust Co., 218 Pa. 286, 291, 67 A. 469, 470 (1907); Kenworthy v. Levi, 214 Pa. 235, 239, 63 A. 690, 691 (1906); Bayard v. Farmers’ & Mechanics’ Bank, 52 Pa. 232, 237 (1866). A trustee can properly exercise only such powers as are conferred upon him or her in specific words by the terms of the trust or are necessary to carry out the purposes of the trust and are not forbidden by the terms of the trust. Hartje’s Estate, 345 Pa. 570, 574, 28 A.2d 908, 910 (1942); Restatement (Second) of Trusts § 186. “[A]n abuse of the trust can neither give nor take away a right; and those who claim by it as volunteers or with notice, stand on a level with the delinquent trustee.” Harrisburg Bank v. Tyler, 3 Watts & Serg. 373, 377 (1842).

The provisions of the Ronca trust agreement expressly authorized the trustee to “mortgage ... the property of trust ... to the same extent and with the same powers which any individual would have in respect to his own property and funds.” The powers of the trustee, however, were limited as follows:

5. Limitation on powers. Notwithstanding anything herein contained to the contrary, no powers enumerated herein or accorded to trustees generally pursuant to law shall be construed to enable the Grantors or the Trustee, or any of them, or any other person to purchase, exchange, or otherwise deal with or dispose of the principal or income of the trust created by this agreement for less than an adequate or full consideration in money or money’s worth ...

The issue before the trial court was not whether the trustee had exercised due care in mortgaging the real estate but whether he had had the power to execute and deliver a valid mortgage. With respect to that issue, it seems clear that the language of the trust agreement authorized the trustee to mortgage the principal of the trust. Appellant contends, however, that the mortgage was without consideration and, therefore, was unauthorized because the proceeds of the mortgage loan were paid to Fountain Hill Millwork Co. and were not used to improve the trust res. This argument, however, is flawed. It overlooks that the shares of stock of Fountain Hill Millwork Co. were also a part of the trust res. It is clear that it was anticipated by the parties that the value of the stock would be enhanced by the company’s use of the loan proceeds. Courts generally will not inquire into the value of consideration where it is clear that adequate consideration exists, Thomas v. Thomas Flexible Coupling Co., 353 Pa. 591, 598, 46 A.2d 212, 216 (1946); Krosnar v. Schmidt Krosnar McNaughton Garrett Co., 282 Pa.Super. 526, 537, 423 A.2d 370, 375 (1980), and in this case the trial court also declined to do so. We perceive no error therein.

It is clear beyond peradventure that appellee advanced $125,000 in the form of a loan and took as security for the repayment thereof a mortgage on the Moravia Street property. The record is also clear that appellee had no reason to believe that the trustee’s mortgaging of the trust real estate constituted a breach of trust. Therefore, “the convenience of trade does not allow a [bona fide] transaction to be unravelled.” Harrisburg Bank v. Tyler, supra at 378. See also: George v. Richards, 361 Pa. 278, 283, 64 A.2d 811, 813 (1949); Consumers Produce Co., Inc. v. Volante Wholesale Produce, Inc., 16 F.3d 1374 (3d Cir.1994); Restatement (Second) of Trusts §§ 284 and 297.

Affirmed.

BECK, J., concurs in the result.

      . The default judgments against Donald Ronca and Frank Bianco, the trustee, were not removed.

      . In holding, as we do, that the mortgage is valid, we express no opinion regarding the trustee’s personal liability, if any, for a possible breach of his fiduciary duties.


author: SAYLOR, Judge:

text:
    660 A.2d 626
    John W. TRUDE v. Brian MARTIN, an Individual, Rod Shellhouse, an Individual, Nancy Brown, an Individual, Donati’s Inc., a Corporation and Equitable Financial Management Inc., a Corporation. Appeal of EQUITABLE FINANCIAL MANAGEMENT INC.
    Superior Court of Pennsylvania.
    Argued Feb. 7, 1995.
    Filed May 9, 1995.
    Reargument Denied July 19, 1995.

      Robert J. Marino, Pittsburgh, for appellant.
    Richard Wile, Pittsburgh, for appellee.
    Before CAVANAUGH, JOHNSON, AND SAYLOR, JJ.
   SAYLOR, Judge:

This is an appeal by Equitable Financial Management, Inc. (“Equitable”) from an order of the Court of Common Pleas of Allegheny County entering judgment in favor of Appellee, John W. Trade. We affirm.

John Trade filed a civil action seeking money damages for injuries sustained by him as a result of an incident which occurred in the rear of Donati’s restaurant during the early morning hours of June 29, 1988. At the time of the incident, Donati’s leased its restaurant space from Equitable. The entrance for customers of Donati’s was located at the front of the building, adjacent to the main parking lot. In the rear of the restaurant were three exits which were not designated for customer use, one of which led from the kitchen. The kitchen exit consisted of a door, a landing surrounded by a waist-high brick wall with a concrete capstone on it, and stairs leading from the landing down to the parking area. The kitchen exit and landing, together with the wall surrounding it and 'the steps leading to the parking lot, remained under Equitable’s control since they were part of the structure of the main building which housed Donati’s leased premises.

Ronald C. Donati, the owner of Donati’s restaurant, occasionally hired Trade to perform various maintenance jobs at the restaurant. On June 28,1988, Donati hired Trade to paint a door at the rear of the restaurant. Trade painted the door from 9:00 p.m. until about midnight. After Trade finished painting, he went to the bar area of the restaurant where he was served alcoholic beverages by Nancy Brown, the bartender, until 2:00 a.m. At that time, Rod Shellhouse, the night manager, locked the front door and allowed several people to remain in the bar and continue drinking, including Ms. Brown, Trade, and Brian Martin, with whom Trade was acquainted. Shellhouse permitted the group to exit Donati’s through the rear door to the kitchen sometime in the early morning hours of June 29.

Shortly after exiting Donati’s, Trade and Martin had a disagreement in the parking area directly behind the building. Martin became combative toward Trade, shouting and swinging wildly. Trade retreated up the stairs to the landing outside the kitchen door and pounded on the door. When Shellhouse did not open the door, Trade sat on the concrete capstone on top of the brick wall which surrounded the landing outside of the kitchen door. Martin ascended the stairs and pushed Trade. Martin’s push dislodged the concrete capstone on top of the wall, causing Trade to fall six feet to the ground below, fracturing his neck and rendering him a quadriplegic. As a result of these events, Martin was convicted of aggravated assault in a non-jury trial in the Court of Common Pleas of Allegheny County.

Trade instituted an action against Martin, Shellhouse, Brown, Donati’s, and Equitable, alleging that his injuries were the direct result of the defendants’ negligence. With respect to Equitable, Trade alleged that Equitable had been negligent in failing to inspect and maintain the wall and the concrete capstone behind Donati’s kitchen exit, and that such failure created a dangerous condition which was a substantial factor in causing his accident and injuries.

On the first day of the jury trial, the trial court granted Trade’s oral motions to amend his complaint to include the following averments of negligence by Equitable: failure to maintain the brick wall and landing in accordance with the BOCA code and the Pennsylvania Fire and Panic Act; failure to conduct a proper inspection with a qualified architect or engineer upon purchasing the property; failure to tear down and reconstruct the brick wall and capstone in order to comply with all current safety codes and laws; misrepresentation of information to obtain a building permit; and finally, renovation to the premises in 1980 and 1984 in a negligent manner.

The evidence at trial indicated that the capstone on top of the brick wall had indeed been loose. Trade’s expert witness testified that given the amount of force involved when Trade was pushed, there could not have been any bond, such as mortar, between the wall and the capstone, because Martin’s and Trade’s actions would not have created enough force to dislodge a capstone that was still bonded to the wall. Martin testified that he had been employed at Donati’s approximately a year and a half prior to the incident and that he frequently sat on the capstone from which Trade had fallen. Martin testified that at the time he had sat on the capstone, he had noticed that it was loose and he could feel it shift beneath him. Donati testified that there were visible cracks in the wall surrounding the landing and that these cracks had been present when Donati’s opened for business in April, 1986. Donati further testified that following Trade’s accident, he attempted to lift the capstone and return it to the wall, and that when he did so, he observed that there was «0 mortar adhering to the capstone itself. Further expert testimony supported the proposition that the loose capstone was partially responsible for Trude’s fall and the severity of his injuries. An engineer gave his expert opinion that the failure to have the capstone properly affixed to the wall was a substantial factor in causing Trude’s fall. A medical expert testified that, in falling with the 170 pound capstone, Trade would have experienced more force and pressure, particularly on his neck and spine, than if he had not fallen with the cápstone.

The jury returned a verdict in favor of Trade in the amount of $4,300,000, rendering all defendants jointly and severally liable. In response to special interrogatories, the jury found all defendants negligent and further found that each defendant’s negligence was a substantial factor in causing Trade’s harm. Specifically, the jury found Martin 40% responsible, Shellhouse 29% responsible, Brown 20% responsible, Donati’s 49% responsible (the sum of the fault of its employees, Brown and Shellhouse), and Equitable 11% responsible. However, because Trade had executed a joint tortfeasor release with Donati’s prior to trial, and because Donati’s was held to have been 49% responsible for Trade’s damages, Equitable’s and Martin’s joint and several liability was reduced to 51% of the verdict, or $2,193,000. The trial court molded the verdict accordingly. Delay damages were assessed against Equitable and Martin in the amount of $333,336, jointly and severally, based upon the amount of the molded verdict, $2,193,000.

Equitable thereafter filed a motion for post-trial relief, seeking judgment notwithstanding the verdict (JNOV), or in the alternative, a new trial. The trial court denied the motion, and this appeal followed.

On appeal, Equitable raises the following issues for review:

1) Whether the trial court erred in failing to grant a compulsory non-suit of judgment n.o.v. to Equitable on the basis that Equitable had no legal duty toward Trade under the circumstances.
2) Whether the trial court erred in failing to grant a new trial when it had refused to charge the jury on the doctrine of contributory negligence, and had submitted the case to the jury under the Pennsylvania Comparative Negligence Act without also including the negligence of Trade.
3) Whether the trial court erred in failing to grant a new trial when it had refused to charge the jury on the doctrine of intervening, superseding cause.
4) Whether the trial court erred in failing to grant a new trial when it had permitted Trade to amend his complaint on the first day of trial to include causes of action not plead in the original complaint, beyond the statute of limitations.
5) Whether the trial court erred in failing to grant a new trial when it had refused to admit evidence of Trade’s lifestyle, station in life, and work history, while simultaneously permitting Trade’s counsel to introduce Trade’s daughter to the jury and to comment upon Trade’s lifestyle during opening statements and during Trade’s direct testimony.
6) Whether the trial court erred in failing to grant a new trial when it had charged the jury that if Trade was not a trespasser, then, as a matter of law, he had to be a business invitee.
7) Whether the trial court erred in its computation of delay damages.

Equitable first argues that it had no legal duty to Trade because, as a matter of law, Trade was a trespasser at the time of the incident. Equitable further argues that, even if it had a legal duty to Trade, the conduct of Martin constituted an intervening, superseding cause which exonerated Equitable from liability for Trade's harm. Therefore, Equitable claims that the trial court erred in denying its motion for JNOV.

JNOV may be granted only in a clear case where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. Mitzelfelt v. Kamrin, 379 Pa.Super. 121, 549 A.2d 935 (1988). When reviewing the propriety of an order granting or denying JNOV, this court must determine whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner the benefit of every reasonable inference that can be drawn from the evidence and rejecting all unfavorable testimony and inferences. Id., 379 Pa.Super. at 125-126, 549 A.2d at 937-938. This court will reverse the lower court only if we find an abuse of discretion or error of law which controlled the outcome of the case. McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 450 A.2d 991 (1982).

The standard of care which a possessor of land owes to an entrant upon the land depends upon whether the entrant is a trespasser, licensee or business invitee. Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983); see also, Restatement (Second) of Torts §§ 328-344 (1965). Generally, the determination of whether an individual is a trespasser, licensee or invitee is one of fact for the jury. Palange v. City of Philadelphia, Law Department, 433 Pa.Super. 373, 640 A.2d 1305 (1994).

Section 360 of the Restatement (Second) of Torts defines the scope of a landlord’s duty to persons who are on the land by permission of the tenant:

A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.

Restatement (Second) of Torts § 360 (1965) (emphasis supplied).

Here, Equitable’s control of the area at issue was established through the trial testimony of Equitable’s vice-president, who stated that there was an understanding between Equitable and Donati’s that the kitchen door exit, landing, wall, and stairway were all considered part of the structure of Equitable’s building and were not part of Donati’s leased premises. There was also testimony by other representatives of Equitable that Equitable was responsible for fixing any structural problems on Donati’s exterior and that Equitable thus would have been responsible for rectifying any structural problems pertaining to the kitchen door exit and the landing.

The testimony at trial also supported the conclusion that Trade was indeed an invitee on Equitable’s premises, and was not a trespasser at the time of the incident. Section 329 of the Restatement (Second) of Torts defines a trespasser as “a person who enters or remains upon land in possession of another without a privilege to do so created by the possessor’s consent or otherwise.” Restatement (Second) of Torts § 329 (1965). An invitee is defined by section 332 of the Restatement (Second) of Torts in the following manner:

(1) An invitee is either a public invitee or a business visitor.
(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.

Restatement (Second) of Torts § 332 (1965) (emphasis supplied).

Trade was hired by Donati’s to paint a door on the night of the incident. In doing so, he was on the premises for a purpose which was indirectly connected with the business dealings of Equitable. As lessor of the premises, Equitable had a business interest concerning the maintenance of the lessee’s establishment, because such improvements would ensure that the lessee’s business continued on the leased premises. Thus, Trade was a business visitor upon his initial entry of the premises. After painting the door, he entered the bar section of Donati’s, began drinking, and was permitted to remain in the bar after closing time. By purchasing alcohol from the bar inside Donati’s, Trade became a public invitee, since he had been invited to remain on the premises for a purpose for which the premises were held open to the public. See, Cutler v. Dushoff, 192 Pa.Super. 37, 159 A.2d 524 (1960) (duty of care owed to patron of restaurant is that owed to an invitee). Although most patrons of Donati’s used the front entrance to enter and leave the establishment, Trade had been given permission to use the kitchen exit behind the building. Thus, at the time of the incident, Trade was an invitee on the premises and had not exceeded the scope of his privilege to be on the premises when he left the building through the kitchen door exit. Therefore, Trade did not lose his status as an invitee and become a trespasser merely by exiting Donati’s and proceeding down the back stairs to the parking lot.

The Superior Court addressed a similar situation in Portee v. Kronzek, 194 Pa.Super. 193, 166 A.2d 328 (1960). The defendant in Portee was the owner of an apartment building which was rented to a number of tenants, including a tenant who ran a bar in the basement of the building. The plaintiff was injured on the steps outside of the bar. A verdict was returned in favor of the plaintiff, and the Superior Court, in affirming the judgment, noted that persons who enter bars “are ... business patrons and must be considered invitees of the tenant. The person in control of the property is liable to such an invitee if he should have known that the invitee would reasonably believe that his presence is permitted or desired because of its connection with the business of the tenant.” Id., 194 Pa.Super. at 197, 166 A.2d at 331, citing Parsons v. Drake, 347 Pa. 247, 32 A.2d 27 (1943). The court also stated that “the owner of a building who leases out different parts of the building has control over those areas not specifically leased and is, therefore, liable for negligence in the maintenance of the controlled areas even though the areas are appurtenant to one or more of the leaseholds.” Id., 194 Pa.Super. at 196, 166 A.2d at 330.

Thus, since Trade entered Donati’s as an invitee and retained this status upon exiting the building, Equitable owed him a duty of care to protect him from harm resulting from any physical condition on the land of which Equitable knew or should have known by the exercise of reasonable care. See, Restatement (Second) of Torts § 343 (1965).

Conceding that even if it did owe Trade a duty of care, Equitable further argues, however, that it is not liable for the harm which Trade suffered on the premises because Martin’s actions constituted an intervening, superseding cause.

Section 441 of the Restatement (Second) of Torts defines an “intervening force” as “one which actively operates in producing harm to another after the actor’s negligent act or omission has been committed.” Restatement (Second) of Torts § 441 (1965). A “superseding cause” is defined as “an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.” Restatement (Second) of Torts § 440 (1965). Among the factors to consider in determining whether a subsequent force is an intervening or superseding cause are whether the force is operating independently of any situation created by the first actor’s negligence and whether it is a normal result of that situation. Chacho v. Commonwealth, Department of Transportation, 148 Pa.Cmwlth. 494, 611 A.2d 1346 (1992). In Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 465 A.2d 1231 (1983), the Pennsylvania Supreme Court noted:

[E]ven where an intervening act is wrongful it does not become a superseding cause unless, looking retrospectively from the harm through the sequence of events by which it was produced, it is so extraordinary as not to have been reasonably foreseeable.

Id., 502 Pa. at 253, 465 A.2d at 1237; see also, Restatement (Second) of Torts § 442 (1965).

Here, although Martin’s act of pushing Trade while Trade was seated upon the concrete capstone atop the brick wall constituted an intervening force, the consequences of this act were not so extraordinary or unforeseeable as fo render it a superseding cause. See, Restatement (Second) of Torts § 447 (1965).

Furthermore, Pennsylvania courts have adopted the Restatement’s “substantial factor” approach concerning legal causation. Under this approach, a plaintiff must prove that a defendant’s negligent conduct was a substantial factor in bringing about the harm suffered. Whitner v. Von Hintz, 437 Pa. 448, 263 A.2d 889 (1970); see also, Restatement (Second) of Torts § 431(a) (1965). In situations where more than one substantial factor brings, about harm, the principle of concurrent cause applies. Even though concurrent causes may have contributed to the harm, if a defendant’s negligence was a substantial factor in producing the result, the defendant may be held liable for the full amount of the damages. Monzo v. Commonwealth, Department of Transportation, 124 Pa. Cmwlth. 360, 556 A.2d 493 (1989), appeal granted, 523 Pa. 652, 567 A.2d 655 (1989). Thus, “[a] party may recover damages where two or more substantial causes combine to cause an event, even if no one cause standing alone would have brought about the injury. To escape liability, the defense must show that the plaintiffs condition would have been the same today even without the defendant’s negligence.” DeVita v. Durst, 167 Pa.Cmwlth. 105, 113, 647 A.2d 636, 640 (1994), citing Boushell v. J.H. Beers, Inc., 215 Pa.Super. 439, 258 A.2d 682 (1969). Furthermore, the peculiar way in which an injury may result is not material so long as there was a foreseeable probability of injury to one within the ambit of danger. Masciangelo v. Dotente, 222 Pa.Super. 368, 295 A.2d 98 (1972). In Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977), the Pennsylvania Supreme Court stated:

If [an] actor’s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable. (Emphasis added).

Id., 474 Pa. at 596, 379 A.2d at 114, quoting Restatement (Second) of Torts § 435(1) (1965); see also, Churbuck v. Union Railroad Company, 380 Pa. 181, 110 A.2d 210 (1955).

Here, the jury heard ample evidence from which it could conclude that Equitable’s negligent maintenance of the premises created a dangerous condition, specifically, the loose capstone which was in danger of falling off of the wall if enough weight rested on it at the wrong angle. Thus, the negligent maintenance of the capstone was a substantial factor in causing Trade’s injuries, concurrent with Martin’s act of pushing Trade, which was also a substantial factor in causing Trade’s injuries. Furthermore, it was foreseeable that because of the existence of a dangerous physical condition on Equitable’s land, a person on or around the wall could be injured as a consequence of the dangerous condition. Accordingly, Equitable’s negligent maintenance of the capstone was a concurrent cause of Trade’s harm. Thus, when viewed in the light most favorable to Trade, the verdict winner, the facts in this case support the inference that Equitable owed a duty to Trade and that the harm which Trade suffered was concurrently caused by both the conduct of Martin and the negligence of Equitable. Therefore, the trial court properly denied Equitable’s motion for JNOV.

Equitable also contends that the trial court erred in refusing to charge the jury on the doctrine of contributory negligence and intervening, superseding cause, and in charging the jury that if they found that Trade was not a trespasser, then he was a business invitee as a matter of law. Therefore, Equitable argues, the trial court erred in denying its alternative motion for a new trial.

In reviewing the denial of a motion for a new trial, this court must determine whether the trial court committed an abuse of discretion or error of law which controlled the outcome of the case. Wood v. Smith, 343 Pa.Super. 547, 495 A.2d 601 (1985). In making this determination, we must consider whether, viewing the evidence in the light most favorable to the verdict winner, the verdict would differ if another trial were granted. Robertson v. Atlantic Richfield Petroleum Products Co., 371 Pa.Super. 49, 537 A.2d 814 (1987), allocatur denied, 520 Pa. 590, 551 A.2d 216 (1988).

Equitable first claims that it was entitled to a new trial on the basis that the trial court erred in refusing to instruct the jury on contributory negligence. “When a plaintiffs contributory negligence is at issue, it is error for a trial court to fail to charge the jury thereon.” Speer v. Barry, 349 Pa.Super. 365, 371, 503 A.2d 409, 412 (1985), citing McCullough v. Monroeville Home Association, Post 820, Inc., 270 Pa.Super. 428, 411 A.2d 794 (1979). Therefore, if either party offers any evidence “which alone would justify an inference of [contributory negligence], it must go to the jury, no matter how strong or persuasive may be the countervailing proof....” Heffernan v. Rosser, 419 Pa. 550, 554-555, 215 A.2d 655, 657 (1966), quoting Howard Express Co. v. Wile, 64 Pa. 201 (1870). In the absence of any evidence to support a finding of contributory negligence, however, it is error for the trial court to give such charge to the jury. Hanlon v. Sorenson, 289 Pa.Super. 268, 433 A.2d 60 (1981); Thomas v. Tomay, 413 Pa. 270, 196 A.2d 740 (1964).

Our review of the record has revealed no evidence from which contributory negligence on the part of Trade can be inferred. There is no evidence that Trade’s consumption of alcohol on the evening in question contributed to the harm which he suffered; furthermore, evidence of voluntary intoxication does not in itself raise the issue of contributory negligence. See, Kriner v. McDonald, 223 Pa.Super. 531, 302 A.2d 392 (1973) (fact that decedent may have been drinking prior to accident had no bearing on issue of whether he was contributorily negligent); Lehman v. McCleary, 229 Pa.Super. 508, 329 A.2d 862 (1974) (mere fact that decedent may have been legally intoxicated at time of accident does not mean that he was contributorily negligent). Accordingly, the trial court did not err in refusing to charge the jury on contributory negligence because such issue had not been raised in this case.

Furthermore, there was no evidence presented at trial which indicated that Trade had any safer alternatives than retreating to the landing outside of Donati’s and seeking help from the restaurant manager. Accordingly, the trial court properly refused to instruct the jury concerning contributory negligence when there was no evidence that Trade chose the more hazardous of two alternatives. See, Downing v. Shaffer, 246 Pa.Super. 512, 371 A.2d 953 (1977) (trial court erred in charging jury that plaintiff was contributorily negligent if she voluntarily chose the more hazardous of two alternatives, when no evidence was presented which would allow jury to conclude that there was safe route which plaintiff failed to take).

Equitable also contends that a new trial is warranted because the trial court erred in failing to instruct the jury regarding intervening, superseding cause. However, “ ‘[i]t is manifestly improper for a court ... to submit to a jury, for their determination, a point which the evidence does not warrant.’ ” Downing v. Shaffer, supra, 246 Pa.Super. at 519, 371 A.2d at 956, quoting Millen v. Miller, 224 Pa.Super. 569, 576, 308 A.2d 115, 119 (1973) (citation omitted). It is the exclusive function of the trial court to determine whether the evidence and facts presented at trial create an issue upon which the jury may reasonably differ concerning whether the defendant’s conduct was a substantial factor in causing the plaintiffs harm. Restatement (Second) of Torts § 434(l)(a) (1965). Furthermore, it is also the trial court’s exclusive function “to declare the existence or non-existence of rules which restrict the actor’s responsibility short of making him liable for harm which his negligent conduct is a substantial factor in bringing about, and to determine the circumstances to which such rules are applicable.” Restatement (Second) of Torts § 453 (1965). The “rules” to which this section refers include those concerning superseding causes and intervening forces, as set forth in sections 440-443 of the Restatement (Second) of Torts. See, Restatement (Second) of Torts § 453 cmt. a (1965). Only in a case where there is room for reasonable difference of opinion concerning the negligent character of the intervening act of a third person or the reasonable foreseeability of its occurrence should the trial court submit the question of superseding cause to the jury. Restatement (Second) of Torts § 453 cmt. b (1965). Where, as in this case, however, the facts are undisputed that the multiple causes of the plaintiffs harm were concurrent substantial factors in bringing about the plaintiffs injury, no question concerning superseding cause exis°ts for the jury and no instruction thereon is warranted.

Equitable further argues that a new trial is warranted because the trial court erred when it instructed the jury that if they did not find that Trade was a trespasser, then he was a business invitee as a matter of law. When reviewing a claim that the trial court erred in instructing the jury, the scope of appellate review is whether the trial court committed a clear abuse of discretion or error of law which controlled the outcome of the case. Butler v. Kiwi, S.A., 412 Pa.Super. 591, 604 A.2d 270 (1992), appeal denied, 531 Pa. 650, 613 A.2d 556 (1992). The trial court has broad discretion in phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration. Commonwealth v. Prosdocimo, 525 Pa. 147, 578 A.2d 1273 (1990). Generally, the determination of whether an individual is an invitee, a licensee, or a trespasser is for the jury. Palange v. City of Philadelphia Law Department, 433 Pa.Super. 373, 640 A.2d 1305 (1994). However, where the evidence is insufficient to support such issue, the trial court may appropriately remove that issue from the jury. Id. Here, the evidence at trial demonstrated that upon his initial entry upon Donati’s leased business premises, Trade was an invitee. The Restatement (Second) of Torts provides that a possessor of land who leases part of the land and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him may be liable to an invitee or even to a licensee of the lessee. Restatement (Second) of Torts § 360 (1965). Furthermore, in order to be an invitee, it is not necessary that the entrant be on the land for the purposes of the possessor’s business; rather, it is sufficient that the visit be for the convenience or arise out of the necessities of others who are themselves on the land for a business purpose. See, Restatement (Second) of Torts § 332 cmt. g (1965).

Thus, when Trade initially entered Donati’s, he was there for the business purpose of maintenance and would have been an invitee in regard to both Donati’s and Equitable. Furthermore, even if Trade became a licensee of Donati’s when he finished working and remained on the premises to drink, he still was there for the purposes of Donati’s business, i.e., running a drinking establishment. Accordingly, he would have remained an invitee in regard to Equitable. Thus, there were no facts to support the proposition that Trade was at any time a licensee in regard to Equitable, and the trial court properly instructed the jury that he could either be found to be an invitee or a trespasser.

Equitable also claims that its motion for a new trial should have been granted because the trial court erroneously permitted Trade to amend his complaint to include additional causes of action after the statute of limitations had run. Amendments to pleadings are freely allowed under the Pennsylvania Rules of Civil Procedure, see, Pa.R.C.P. No. 1033, and the decision to grant or deny permission to amend is within the sound discretion of the trial court. Daley v. John Wanamaker, Inc., 317 Pa.Super. 348, 464 A.2d 355 (1983). An amendment, however, may not introduce a new cause of action after the applicable statute of limitations has ran. Id.

Here, contrary to Equitable’s assertion, the amendments which the trial court permitted did not introduce new causes of action but merely amplified the originally pled averments that Equitable had breached its duty to inspect and discover the condition of the concrete capstone and to take steps to fix the capstone. Specifically, evidence of Equitable’s violation of the BOCA Code was introduced to show that if the wall had met the Code standards, which were applicable to the renovations conducted by Equitable in 1984, the cap would have been securely affixed to the wall during the process of renovating the wall to comply with Code standards. Accordingly, the amendments added by Trade simply restated the grounds originally set forth as the basis for his cause of action, i.e., Equitable’s negligence in failing to inspect and maintain the brick wall. Accordingly, the trial court did not err in permitting Trade to amend his complaint to include such allegations.

Next, Equitable asserts that the trial court should have granted its motion for a new trial on the grounds that the preclusion of testimony concerning Trade’s lifestyle was error. Specifically, Equitable contends that evidence of Trade’s lifestyle was admissible to impeach Trade’s credibility, and that, since it was precluded from introducing such evidence, Trade’s counsel should have been precluded from eliciting testimony that Trade lived with his parents and that his daughter also lived with him.

“When the basis of the request for a new trial is the lower court’s raling(s) on evidence, to constitute reversible error, such ruling ‘must be shown not only to have been erroneous but harmful to the party complaining____’” Wilson v. Donegal Mutual Insurance Co., 410 Pa.Super. 31, 34, 598 A.2d 1310, 1312 (1991), quoting Hart v. W.H. Stewart, Inc., 523 Pa. 13, 16, 564 A.2d 1250, 1252 (1989) (citations omitted). “An evidentiary ruling which did not affect the verdict will not provide a basis for disturbing the jury’s judgment.” Id.

When a witness or party places his character for truthfulness at issue, however, character evidence which has a bearing on the person’s reputation for veracity and truthfulness is admissible for impeachment purposes. Here, Trade's character was not in issue, nor were the facts concerning the accident and Trade’s injuries in dispute. Therefore, the evidence which Equitable sought to admit not only had no bearing on Trade’s reputation for veracity or truthfulness, but was also irrelevant. Furthermore, the record does not indicate that Equitable was prejudiced by the trial court’s evidentiary ruling or that the verdict would have differed had Equitable been permitted to present evidence of Trade’s lifestyle. Accordingly, this claim is meritless.

Finally, Equitable contends that the trial court erred in its computation of delay damages. In this case, the jury’s verdict rendered all defendants jointly and severally liable to Trade for the amount of $4,300,000. However, because Trade had executed a joint tortfeasor release with Donati’s prior to trial, and because Donati’s was held to be 49% responsible for Trade’s damages, the joint and several liability of Equitable and Martin was reduced to 51% of the total verdict, or $2,193,000. The trial court molded the verdict accordingly, and then assessed delay damages in the amount of $333,336 against the non-settling defendants, jointly and severally.

Equitable contends, however, that it is liable for delay damages only on the amount of its pro rata share portion of the total verdict. Since the jury found that 11% of the causal negligence was attributable to Equitable, Equitable’s pro rata share of the total verdict would be 11% of $4,300,000, or $473,000. Therefore, Equitable argues, the trial court should have calculated delay damages based upon the amount of $473,000, Equitable’s proportionate share of the verdict.

In Tindal v. Southeastern Pennsylvania Transportation Authority, 385 Pa.Super. 94, 560 A.2d 183 (1989) (en banc), the Superior Court considered the issue of whether delay damages should be jointly and severally allocable against all liable defendants or whether delay damages should be apportioned only against a particular defendant’s portion of liability. In Tindal, there were three defendants. Prior to trial, one of the defendants made a settlement offer to the plaintiff pursuant to Pa.R.C.P. No. 238(b)(1). Following trial, a verdict was returned in favor of the plaintiffs. The defendant who had made the offer of settlement was determined to be 70% negligent and the other two non-settling defendants were determined to be 30% negligent. The two non-settling defendants contended that they should not be jointly and severally liable on the total amount of delay damages, as they would be on the jury verdict, but rather that their liability should be limited to their corresponding liability on the verdict (i.e., 30%). The court held that

Liability normally follows verdict. Therefore, appellants are jointly and severally responsible for the entire amount of delay damages because they are jointly and severally liable for the entire amount of the verdict. This result logically obtains from the new Rule which, while labelled “delay damages,” is really in the nature of prejudgment interest to be added to compensatory damages awarded at verdict. Moreover, the express language of Rule 238 requires that damages for delay “become part of the verdict, decision or award.” Pa.R.C.P. 238(a)(1).

Id., 385 Pa.Super. at 105, 560 A.2d at 189.

Therefore, in this case, Equitable is jointly and severally liable for the total amount of delay damages assessed by the trial court, and the order entering judgment in favor of Trude is affirmed.

Order affirmed.


author:
FORD ELLIOTT, Judge:
      TAMILIA, Judge,

text:
    660 A.2d 636
    Allen W. RUBIN, Administrator of the Estate of Steven P. DiLeonardo, Deceased, Appellant, v. Kenneth LEHMAN, Eleanor M. Lehman, Anthony DiLeonardo, Jr., Richard Diegel, Bucks County International, Inc., Arnold McClarin, Upper Southampton Township Industrial Development Authority, Delaware Valley Development Authority, Davisville Properties, Inc., Davisville Center, Inc., M. Barry Schultz & Co., Gulf Oil Corp., Cumberland Farms, Inc., Morton’s Gulf, Inc., James J. Morton, William Dreyer’s Lawn Service and General Motors Corporation.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1994.
    Filed May 11, 1995.
    Reargument Denied July 24, 1995.

      Ronald L. Wolf, Philadelphia, for appellant.
    Wayne A. Schaible, Philadelphia, for Lehman, appellee.
    Before McEWEN, TAMILIA, and FORD ELLIOTT, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from the January 31, 1994 order of the Court of Common Pleas of Philadelphia County granting appellees Kenneth and Eleanor Lehman’s petition to transfer venue to Bucks County. We reverse.

The underlying lawsuit stems from an automobile accident which occurred in February 1990. The accident, involving an automobile driven by Kenneth Lehman and an automobile driven by Anthony DiLeonardo, Jr., occurred along County Line Road, dividing Bucks and Montgomery Counties. At the time of the accident DiLeonardo’s brother Steven was a passenger in his vehicle. As a result of the collision, both Anthony and Steven DiLeonardo were ejected from their vehicle. Steven DiLeonardo was struck by an oncoming tow truck and killed.

Allen W. Rubin, Administrator of the Estate of Steven DiLeonardo, filed suit in Philadelphia County against the Lehmans, General Motors Corporation, the tow truck company and driver, the owner of the vehicle in tow, and nine other corporate defendants who all had an ownership interest in the property at the intersection where the accident occurred. In a companion suit currently pending in Philadelphia County, Anthony DiLeonardo likewise sued these same defendants.

In October 1993, appellees Kenneth and Eleanor Lehman petitioned to have the case transferred to the Court of Common Pleas of Bucks County on the grounds of forum non conveniens. In the petition, appellees alleged that transfer was proper for several reasons. Appellees pointed to the facts that the accident occurred in Bucks County, that four of the individual defendants reside in Bucks County, that the causes of action had very little connection to Philadelphia County, that the Philadelphia County courts are overburdened, and that for the majority of witnesses in this case it would be more convenient to testify in Bucks County. Many of the allegations in appellees’ petition were unsubstantiated; appellees failed to take depositions or secure affidavits to support their allegations concerning the convenience of witnesses. Appellant responded to the petition by specifically denying several of the allegations and offering testimonial affidavits to support his position. The trial court, on this record and without conducting a hearing, granted the petition and transferred the case to Bucks County. Appellant asks us to review that decision.

To that end, appellant raises three issues, all concerning the propriety of the trial court’s decision to transfer venue.

I. Did the trial court adequately consider plaintiffs choice of forum in granting the motion to transfer?

II. Did the trial court improperly order transfer when petitioning defendants did not demonstrate through record evidence that Philadelphia is inconvenient for any party or witness and plaintiff established that this forum is convenient for parties and witnesses?

III. Did the trial court improperly order transfer when the record shows Bucks County is an inconvenient forum for parties and witnesses?

All three issues will be addressed together with the following discussion.

It is a well-established rule of law in this Commonwealth that the party seeking to change venue must satisfy a heavy burden by pointing to record evidence of the claimed hardships imposed by plaintiffs choice of forum. See Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827 (1989); Scribner v. Mack Tracks, 427 Pa.Super. 71, 628 A.2d 435 (1993).

The facts underlying this case are strikingly similar to those in Okkerse, supra. Okkerse involved an intersectional collision in Montgomery County in which one of the drivers, Mrs. Okkerse, was killed. Her husband filed suit, in Philadelphia County against the driver of the other vehicle, Ford Motor Company (the manufacturer of Mrs. Okkerse’s vehicle), property owners whose overgrown shrubs allegedly obscured vision at the intersection, various governmental agencies who allegedly had responsibility for controlling the intersection, and twenty-two property owners who allegedly owned the road leading to the intersection. Of all the defendants, the only connection to Philadelphia County was that Ford Motor Company and the Department of Transportation had offices there. One of the defendants in Okkerse filed a petition to transfer venue on the grounds oí forum non conveniens. The petition was granted, reversed by this court, and eventually appealed to the supreme court.

On appeal, the supreme court, affirming this court, concluded that the moving party’s failure to support the petition with record evidence required a denial of the petition to transfer.

Justice McDermott, writing for the majority in Okkerse, stressed the importance of the moving party’s development of a record to support the petition to transfer based upon the doctrine of forum non conveniens.

Thus, the party seeking a change of venue bears a heavy burden in justifying the request, and it has been consistently held that this burden includes the demonstration on the record of the claimed hardships. The Rules of Civil Procedure provide for a procedure whereby a complaining party can develop such a record, and this procedure has been recognized and endorsed by the Superior Court:
a proper procedure under Rule 1006(d)(1) necessarily implicates the requirements for petition and answer set forth in Pa.R.C.P. 206 through 209, including the taking of evidence by deposition or otherwise on disputed issues of fact.
Hosiery Corporation of America v. Rich, 327 Pa.Super. 472, 475, 476 A.2d 50, 51 (1984).

Okkerse at 518, 556 A.2d at 832 (emphasis in original).

Similarly, because there was no testimony or evidence provided by appellees on which the trial court might have based its decision we must reverse in this matter. Appellees failed to take any depositions, secure affidavits, or establish any record evidence, whatsoever. Instead, the trial court based its decision to transfer venue on the allegations of hardship and inconvenience raised in appellees’ petition.

However, as this court has previously held:

We refuse to sanction the transfer of a cause of action premised on the convenience of parties and witnesses on the mere allegation, specifically denied by plaintiff/appellant, of the petitioner.

Petty v. Suburban General Hospital, 363 Pa.Super. 277, 285, 525 A.2d 1230, 1234 (1987). Presently, many of the allegations in appellees’ petition, upon which the decision to transfer venue was based, were specifically denied by appellant in his response to the petition. For instance, appellant disputed that decedent was a resident of Bucks County prior to his death; that a significant number of non-party witnesses to the accident reside and/or work in Bucks County; that defendant Anthony DiLeonardo, Jr., resided in Bucks County at the time of the accident; that all sources of proof are located in Bucks and Montgomery Counties; and that Bucks County is a more convenient forum for all parties.

As this court has previously ruled, “[i]f the petitioner does not take Rule 209 discovery and the court does not order it, the court must, under Rule 209, consider as true all responsive allegations of fact in the answer to the petition.” Burns v. Pennsylvania Manufacturers Ass’n., 417 Pa.Super. 631, 635, 612 A.2d 1379, 1381 (1992) (emphasis in original). See also Alford v. Phil. Coca-Cola Bottling, 366 Pa.Super. 510, 531 A.2d 792 (1987). The lack of a record mandated that the allegations in appellant’s responsive pleading be accepted as true. Additionally, appellant did not merely rest on his responsive pleading, but rather appellant provided the trial court with testimonial affidavits from various parties and witnesses who stated that Philadelphia County would be a convenient forum. Appellees presented the trial court with no record evidence to weigh in their favor. Therefore, we cannot conclude as did the trial court that, based upon a weighing of the relevant factors, the balance was strongly in favor of appellees.

While we recognize that the trial court has broad discretion in matters such as this, before it can order a transfer it must “find that transfer is more convenient for both parties to the action or for the witnesses,” Nicolosi v. Fittin, 434 Pa. 133, 135, 252 A.2d 700, 701 (1969) (emphasis in original). As noted by the Petty court, “[I]f the trial court has not held the defendant to the proper burden or has clearly erred in weighing the factors to be considered, the equivalent of an abuse of discretion has been demonstrated. Discretion must be exercised within the applicable standards.” Petty, 363 Pa.Super. at 282, 525 A.2d at 1232-33, quoting Reyno v. Piper Aircraft Co., 630 F.2d 149, 160 (3d Cir.1980) (citations omitted). Instantly, this court’s doubt concerning the decision to transfer is grounded in appellees’ failure to present any record evidence in support of their assertion that the transfer is more convenient for both parties and the witnesses.

Additionally, while this court recognizes that a trial court can consider matters of public interest as a basis for transfer without a supporting record, the lack of any record regarding private factors clearly serves to negate any meaningful balance of public and private factors to determine if they weigh so strongly in favor of the moving party as to warrant disturbing the plaintiffs choice of forum. While this court is sensitive to the tremendous burden placed on the judicial system in Philadelphia County because of an extremely heavy docket, we are required to adhere to the decisions of this court which have made clear that trial courts must exercise vigilance and not utilize venue transfers based upon the doctrine of forum non conveniens as a means of controlling their dockets.

A trial judge, acting under that doctrine, should only dismiss the action if the plaintiff has selected a clearly inappropriate forum. Rini v. New York Central Railroad Company [429 Pa. 235, 240 A.2d 372 (1968) ], Id. Although we certainly recognize the tremendous burdens placed upon our courts by inadequate and unreasonable funding limitations, such circumstances do not provide the basis for a forum non conveniens transfer of a case from one county to another, when venue is properly laid in the first county. See Horn v. Erie Insurance Exchange, supra, 373 Pa.Super. [186] at 189, 190, 540 A.2d [584] at 586 [ (1988) ], where we stated, ‘A trial court may not utilize a transfer of venue merely to control its docket, to preserve judicial resources, or to avoid deciding cases which are properly before it.’ As in Horn, it is evident in this case that neither the parties nor the trial court have demonstrated that it would have been more convenient for the litigants or their witnesses to try this action in Somerset County, rather than in Allegheny County or that the latter was a clearly inappropriate forum. Thus, under prevailing precedent, the trial court’s change of venue order was improper.

Greenfeig v. Seven Springs Farm, Inc., 416 Pa.Super. 580, 585-86, 611 A.2d 767, 770 (1992); Horn v. Erie Insurance Exchange, 373 Pa.Super. 186, 540 A.2d 584 (1988).

Accordingly, on this record and in light of the foregoing discussion, we cannot affirm the trial court’s decision to transfer venue in this case. Too often this court is being asked to review forum non conveniens cases where the petitioner has presented the trial court with either an inadequate record or no record at all. If this court is to be faithful to the notion that a plaintiffs choice of forum is entitled to weighty consideration, then, at the very least, we should be enforcing the requirement that the party seeking to change that venue fulfill its heavy burden with record proof of the claimed hardships. In the absence thereof, it appears that the forum non conveniens transfer has become nothing more than a docket-clearing device. Based on the published decisions of this court and our supreme court, we find such utilization to be an abuse of the procedure.

Accordingly, the order of the trial court granting the petition to transfer venue to Bucks County is hereby reversed, and the case is remanded for further proceedings. Jurisdiction is relinquished.

TAMILIA, J., files a Dissenting Opinion.

TAMILIA, Judge,

dissenting:

Allen W. Rubin, administrator of the estate of Steven P. DiLeonardo, appeals from the January 31, 1994 Order granting moving defendants’ petition to transfer plaintiffs survival and wrongful death action from Philadelphia to Bucks County on the basis of forum non conveniens. The majority reverses the Order of the trial court, and for the following reasons I vigorously dissent.

Appellants argue the trial court abused its discretion by transferring this matter from Philadelphia County, the choice of the plaintiff, to Bucks County. The underlying products liability and personal injury action stems from an automobile collision in February, 1990, in the County of Bucks, very near its border with Montgomery County.

Although plaintiffs choice of forum is entitled to weighty consideration, it is not absolute, Scribner v. Mack Trucks, 427 Pa.Super. 71, 628 A.2d 435 (1993), and because the trial court has considerable discretion in determining whether to grant a petition for a change of venue, our standard of review of the court’s decision is one of an abuse of discretion, Purcell v. Bryn Mawr Hospital, 525 Pa. 237, 579 A.2d 1282 (1990). Defendants petitioning for a change of venue have the burden of clearly adducing both private and public elements which either establish such oppressiveness and vexation so as to be out of all proportion to plaintiffs’ convenience or make trial in the chosen forum inappropriate due to considerations affecting the court’s own administrative problems. Shears v. Rigley, 424 Pa.Super. 559, 623 A.2d 821 (1993). When evaluating the defendants’ motion for a change of venue, a trial court should consider those elements which affect the private interests of the litigants which include:

the relative ease of access to sources of proof, availability of compulsory process for attendance of unwilling [witnesses], and the cost of obtaining attendance of willing witnesses; possibility of view of the premises if a view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive ....

Id., quoting Petty v. Suburban General Hospital, 363 Pa.Super. 277, 281-282, 525 A.2d 1230, 1232 (1987). The court must also consider those elements in which the public has an interest and those include:

problems of creating court congestion and imposing jury duty upon people of a community which has no relation to the litigation; the appropriateness of having the action tried in a forum where the court is familiar with the law that must govern the case, rather than having a court in some other forum step into a quick-sand of conflict of laws problems and foreign law.

Id. The rule of procedure at issue states:

(d)(1) For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought.

Pa.R.C.P. 1006(d)(1).

The accident occurred near the border of Bucks and Montgomery Counties. The decedent, a resident of Bucks County on leave from the United States Navy, was a passenger in a car owned and operated by his brother, New York resident Anthony DiLeonardo. The DiLeonardo vehicle, registered in the state of New York, was struck by a car owned and operated by Bucks County residents, defendants Kenneth and Eleanor Lehman, as they entered the highway from a side street. The collision caused the DiLeonardo brothers to be forcibly ejected from the car, throwing the decedent directly into the path of an on-coming tow-truck, owned by defendant Bucks County International, Inc., and operated by a Bucks County resident, defendant Richard Diegal. The car in which the decedent was riding is now impounded in Voorhees, New Jersey.

In addition to the aforementioned individual defendants, appellant brought suit against eight corporate defendants, including Bucks County International, Inc., and two political subdivisions, solely on the basis of the parties’ ownership and/or maintenance of landscaping which allegedly obstructed the drivers’ views, contributing to the fatal accident. Five of the corporate and business defendants are located within Bucks County and one other is located in Montgomery County. The remaining two corporate defendants, Cumberland Farms, Inc., a Delaware corporation, and Gulf Oil Corporation, a Pennsylvania corporation, regularly conduct business throughout Pennsylvania. The two political subdivisions included as defendants, Upper Southampton Township Industrial Development Authority and Delaware Valley Industrial Development Authority, are also situated in Bucks County. Defendant General Motors, a Delaware corporation, included on negligence and products liability theories unrelated to the shrubbery obstruction, conducts business throughout Pennsylvania and the United States.

As to potential witnesses and evidence, Bucks County Police responded to the accident, as did Bucks County emergency rescue personnel. Plaintiffs decedent was transported to Warminster General Hospital, located in Bucks County, where he was treated and later pronounced dead. The postmortem was conducted by Montgomery County Coroner, Halbert E. Fillinger, Jr., M.D. John Thallmyer, an eyewitness who was a passenger in the tow-truck, stated he lives in Philadelphia but works in Bucks, thereby making Philadelphia an inconvenient forum. And although the car is impounded in New Jersey, any testimony necessary for the resolution of the products liability facet of this case, including “evidence of designing, testing, manufacturing, and supplying the automobile” could and admittedly would come from “distant parts of the United States.” (Appellants’ brief at p. 10.) Lastly, should a view of the accident scene be required, as in all probability it may be in light of the defendants included as a consequence of their care or lack thereof of the landscaping at the intersection in question, it would be more convenient to have the jury proximate to the accident scene.

From my review of the record it is evident the trial judge carefully considered all of the testimony and evidence before him and thoughtfully weighed the public and private interests of all parties concerned.before granting appellees’ petition for a change of venue. Although appellant presented for our consideration the affidavits of five potential fact witnesses who stated Philadelphia would not be an inconvenient forum, none of these individuals averred Bucks County would be inconvenient. These witnesses would include the victim’s parents who now live in Florida, Anthony DiLeonardo who now lives in California, two individuals who saw the accident scene shortly after the collision and the coroner, previously identified. Considering the proximity of the county court houses, none being located more than 35 to 40 miles from the other, an allegation of gross inconvenience to anyone is questionable. The fact the appellant, who volunteered for the job of administrator of the decedent’s estate, lives in Philadelphia County is not determinative. Clearly, the costs incurred by all concerned, witnesses, attorneys and court systems alike, are greatly reduced by moving the matter to Bucks County. Only plaintiffs counsel and the hand-selected administrator can be truly identified with Philadelphia, and we have frequently held that persons in these categories are not to be considered as effecting the balancing required by the court. Lastly, in rendering its decision, the court properly was mindful of the enormous case load backlogged in the Philadelphia Court of Common Pleas.

The majority places almost total reliance for reversal of the trial court’s Order on Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827 (1989), which held that the record did not support the petition to transfer. What the majority ignores is that Okkerse was a decision by a divided court in which the majority of the Supreme Court agreed to remand for findings because there was “a procedural morass” in which conflicting Orders from different trial judges resulted in incorrect interpretations by the second trial judge thus requiring remand for reconsideration rather than transfer of venue pursuant to the first judge’s Order. To this finding, the full Court agreed. The remainder of the majority’s evaluation was based on a survey of the law and gratuitous conclusions by the author (McDermott, J.) which were not required for the decision in the case. Justices Larsen, Papadakos and Zappala concluded that there was no error in considering the petition on its merits as was done by Superior Court. Justice Zappala stated:

The majority improperly analyzes whether Judge White’s order of transfer was supportable. This occurs because the majority engrafts on to Pa.R.C.P. 1006(d)(1) a requirement that a judge in determining forum non conveniens must conduct a hearing in order to develop a record on which to base his order. The plain language of the rule does not require such a result. Furthermore, Pa.R.C.P. 1006(d)(1) is distinguishable from Pa.R.C.P. 1006(d)(2) which requires a hearing when parties seeking a charge of venue have alleged reasons why a fair trial can not occur in the county. The contrasting language of these subsections serves to confirm that a hearing is not required to develop a record in the case sub judice.
Review of the record indicates, however, there was an adequate factual basis for Judge White to have made his decision. In fact, the information before Judge White was virtually indistinguishable from that presented to Judge DiBona, which was later used by Superior Court to finally determine not to transfer the action to Montgomery County. Furthermore, in contrast to Superior Court’s determination that there was limited information in the petition and answer, review of the record reveals that both of those documents were accompanied by extensive memoranda of law. This detailed information supplied by the parties addressed each of the important considerations affecting their interests. See Fox v. Pennsylvania Power and Light Co., 315 Pa.Super. 79, 461 A.2d 805 (1983) (ease of access to the sources of proof; availability of compulsory process for attendance of unwilling witnesses; the cost of obtaining attendance of witnesses; the possible need for a view of the premises, etc.). Because no abuse of discretion can be attributed to Judge White, it can be discerned that Superior Court merely substituted its own judgment for that of Judge White. See Iole v. Western Auto Supply Co., 352 Pa.Super. 528, 508 A.2d 600 (1986).

Id., 521 Pa. at 523-24, 556 A.2d at 834-35 (Concurring and Dissenting Op., Zappala, J.).

The majority in this case apparently would require discovery and hearings to determine what was already on the record by means of pleadings and affidavits. As explained by the dissenting justices in Okkerse, the trial court had before it sufficient facts to decide the issue of conformance and the trial judge’s disposition was based on a careful consideration of all relevant factors. At any rate, the Okkerse majority did not rule against change in venue but remanded to the trial court to rule on the confused Orders and to make a ruling on the consolidated petitions.

A review of the pleadings, affidavits of witnesses and briefs of the parties in this case compels a finding that the trial court properly weighed all the factors involved in a decision to transfer venue and was not guilty of an abuse of discretion which warrants reversal. The court considered the private interests and the public interests. In making his analysis clearly supported by the record, the trial court stated:

Here, plaintiff was not injured in Philadelphia County. Plaintiff was not a resident of Philadelphia County. The cause of action arose on the Bucks County and Montgomery County line. There are numerous witnesses who may be called to testify — none of whom have been identified as a resident of Philadelphia. The majority of these witnesses hail Montgomery County, or counties other than Philadelphia. The only connection that this case has with Philadelphia County is the presence of plaintiff, Allen W. Rubin, administrator of the Estate of Stephen [sic] DiLeonardo, and the presence of the corporate defendants.

(Slip Op., Cohen, J., 1/31/94, p. 7.)

In their briefs, the corporate defendants concur in the court’s decision of changing venue in that their true contacts with this case are in Bucks County and only incidentally in Philadelphia. The court went on to say:

In light of the venue of all the witnesses, and the various factors presented by both movants and respondent in their respective filings, this Court concludes that the Bucks County forum will be less costly and will make the attendance of willing witnesses easier. There simply are insufficient contacts with Philadelphia presented here to oblige this court to maintain this case in Philadelphia.

(Slip Op. at 8.)

As to the public interest which the court must also consider, the court stated:

There presently exists a substantial backlog of civil cases in the Philadelphia Common Pleas Court system. As noted by the court in Dallas v. Orthopedic Associates, et al., 22 Phila. 286 (1991):
Perhaps the most compelling fact at this point in time is the public interests that have to be considered when a case is transferred for having insufficient contacts with a jurisdiction. If we were to allow these types of actions to be brought in Philadelphia’s already congested courts instead of being handled where they originated, it will compound an already overwhelmed legal system. Also, jury duty is a burden that ought not be imposed on people of a community which has no relationship to the litigation, (citations omitted). It is impossible to ignore the overwhelming burden that presently exists in the Philadelphia Court of Common Pleas with approximately 45,000 civil cases pending. Boyle v. Chester Cty. Mut. Ins. Co., et al., 21 Phila. 1 (1990); see also [Incollingo v. McCarron, 416 Pa.Super. 419, 427, 611 A.2d 287, 291 (1992)].
Transfer of this case alone will not alleviate the backlog that now exists in the Philadelphia Courts of Common Pleas, but it is a step that must be taken.

(Slip Op. at 8.)

The majority dismisses this concern required by the rules and a long history of case precedents by turning the development of the law on forum non conveniens on its head and despite matters placed on the record through pleadings and affidavits, requires record proof of claimed hardship, ignoring the time honored role of the trial court in making that determination rather than accepting the trial lawyer’s allegation that it was not made. The majority gives greater weight and effect to the plaintiffs selection of the forum and reduces the trial court’s discretion to decide if fairness requires a change of venue to a minor role. To the contrary, while a plaintiffs selection of a forum is entitled to weighty considerations, it is not unassailable and the availability of a forum non conveniens challenge is a necessary counterbalance to insure fairness and practicability. Ernest v. Fox Pool Corp., 341 Pa.Super. 71, 491 A.2d 154 (1985). In such cases, the standard of abuse of discretion applies, allowing the trial court considerable discretion. Purcell, supra, 525 Pa. 237, 579 A.2d 1282.

The failure of the majority to recognize this balance is best illustrated by its statement:

If this court is to be faithful to the notion that a plaintiffs choice of forum is entitled to weighty consideration, then at the very least, we should be enforcing the requirement that the party seeking to change that venue fulfill its heavy burden with record proof of the claimed hardships. In the absence thereof, it appears that the forum non conveniens transfer has become nothing more than a docket-clearing device.

(Majority at 8.)

The majority has clearly created an imbalance in the process that despite overwhelming evidence of record that Philadelphia has no interest or relationship to the cause of action in this case, except in the most incidental way, the defendant must prove it is a severe hardship to travel to Philadelphia when such hardship is clear from facts as determined by the trial judge. The ruling by the majority, if sustained, means that henceforth, the plaintiffs choice of a forum is unassailable unless involved and expensive hearings are held to establish proof of hardship beyond that which is ascertainable in an expeditious manner from the record by a competent trial judge in accordance with the rules and case law. Plaintiffs will determine jurisdiction and venue, and trial courts will be rendered powerless to implement the doctrine of fairness and balance, without further burdening the court and the litigants with hearings and discovery which the majority would require to prove hardship. In the meantime, it renders the standard that the ruling of a trial judge shall not be set aside, absent an abuse of discretion, meaningless, thereby placing control of the court’s docket and decisions as to venue primarily within the control of the plaintiff. This is no idle exercise as to where justice is to be rendered on the assumption that the result will be the same regardless of venue. Philadelphia has been a black hole into which cases arising in all of the contingent counties (and states) have been drawn to the point of breakdown of the Philadelphia system. This fact has received national recognition as recently as the January 30, 1995 issue of U.S. News and World Report in its cover story titled How Lawyers Abuse the Law. In a devastating attack on the way law is practiced in this country, which has led to a strong political movement to curb certain practices, the article pinpointed Philadelphia as a problem area. Under the subheading, “Epidemic of injustice,” the article states:

From 1980 to 1989, as accident rates fell, the number of property-damage claims brought per million miles driven fell 12 percent. With cars getting safer, bodily-injury rates should have dropped even faster. Instead, the rate of bodily-injury claims rose 15 percent. In some hotbeds of tort litigation, such as Philadelphia, there were 75 bodily-injury claims filed for every 100 claims of damage to cars — versus a mere 16 per 100 in Pittsburgh. These same places tend to have high rates of claims filed against municipalities. Some of this has to do with the more generous juries often found in low-income inner-city areas, but a lot has to do with nothing more than a concentration of lawyers.

Stephen Budiansky with Ted Gest and David Fischer, How Lawyers Abuse the Law, U.S. News and World Report, Jan. 30,1995, p. 56 (emphasis added). The trial judges of Philadelphia are in the best position to determine if selection of Philadelphia as the proper forum meets the test of fairness, and it is an unjustified criticism of the Philadelphia judiciary to infer they use venue petitions as a docket clearing mechanism. Without judicial supervision and monitoring of case filings, the crisis facing the courts coupled with the full scale attacks against the legal profession will result in the dismantling of the practice of law as we now know it.

I would affirm the Order of Judge Cohen.

      . There were actually two separate petitions for transfer filed before two different trial court judges in Okkerse. However, the intricacies of filings before the trial court are inconsequential to our discussion presently.

      . For example, appellant/administrator himself stated in his affidavit that he is a Philadelphia resident and that a trial in Bucks County would be inconvenient for him. Additionally, decedent’s parents, residents of Florida, both stated in their affidavits that Philadelphia County would be a much more convenient forum for them. Although certainly not dispositive of our decision today, we are also troubled by the fact that one of the defendants in the present suit, Anthony DiLeonardo (the driver of the vehicle in which decedent was a passenger), has, himself, filed a lawsuit arising from this accident in Philadelphia County. This raises the very distinct possibility that these parties and witnesses may now be required to testify at two trials in two separate counties.

      . It should be noted that the author of the instant Opinion also authored this court's decision in German v. AC & S, Inc., 430 Pa.Super. 497, 635 A.2d 159 (1993). In German, this court, recognizing the tremendous burden placed upon the Philadelphia courts by the asbestos docket, specifically approved special procedures for forum non conveniens venue transfers in such cases. Concluding that the trial court had devised a well-planned system which was published and provided in advance to all concerned counsel, we allowed for the special procedure in considering venue transfer petitions in asbestos cases.

      . The counties involved in this matter, Bucks, Montgomety and Philadelphia, are all situated in the southeast corner of Pennsylvania, each being contiguous to the other two.

      . One must question the phraseology used in the witnesses’ affidavit. Does the phrase "not being an inconvenient forum,” by virtue of the use of a double negative, render Philadelphia a convenient forum?

      . I am not certain how record proof is to be established to the satisfaction of the majority if the record as it exists at the time of the petition to change venue is not to be considered.


author: TAMILIA, Judge:

text:
    660 A.2d 645
    Jose VELAZQUEZ, Administrator of the Estate of Iris Velazquez, Deceased, and in His Own Right, Appellant, v. Mahesh C. GUPTA, M.D., and Santosh Gupta, M.D., and Renga Rajan, M.D., and Maria De Los Santos Health Center.
    Superior Court of Pennsylvania.
    Submitted May 22, 1995.
    Filed June 29, 1995.

      Norman Perlberger, Bala Cynwyd, for appellant.
    James C. Stroud, Philadelphia, for Santosh Gupta, M.D., appellee.
    John F. O’Brien, III, Plymouth Meeting, for Renga Rajan, M.D., appellee.
    Before ROWLEY, President Judge, and TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

Jose Velazquez takes this appeal from the Order of the Court of Common Pleas of Philadelphia County entered July 7, 1994 denying his petition without prejudice to release escrow funds set aside for his minor daughter pursuant to a Wrongful Death/Survival Action Distribution and Settlement Order. According to the record, appellant was appointed administrator of the estate of his wife, who died intestate on September 5, 1987 at 20 years of age. As the result of her death due to complications from an allegedly illegal abortion, a medical malpractice action was instituted, which eventually resulted in a settlement in the amount of $800,000 ($200,000 to be paid by the doctor’s private insurance carrier, with the balance of $600,000 to be paid by the Pennsylvania Medical Professional Liability Catastrophe Loss Fund (“CAT Fund”). This amount was to be paid to wife’s intestate heirs, appellant and one minor child, Christina (eight years of age at the time of the June 30, 1994 hearing). Pursuant to local rules, a minor’s Compromise/Wrongful Death-Survival Action Petition was filed by appellant, who is the natural guardian of Christina, on May 6, 1993 and amended on May 26, 1993 to include a proposed CAT Fund annuity. A separate petition was filed in Orphans’ Court to appoint Continental Bank as guardian for the estate of Christina to receive and manage the lump sum payment due her from the proceeds.

On August 16, 1993, the trial court, after considerable modifications to appellant’s proposed settlement, issued its Order Approving Settlement and Order for Distribution, wherein $270,134.49 was allocated to appellant’s attorneys and $529,865.51 was apportioned as wrongful death proceeds. Specifically, appellant received $275,041.75 less $40,000 to be held in escrow by the guardians of the estate of his daughter, subject to any Order of the Family Court division. Upon daughter attaining majority, the balance is to be paid to appellant. Daughter also received $249,932.75. No appeal was taken from this Order.

On May 17, 1994, appellant filed a petition to Partially Vacate the Order Approving Settlement and Turnover of Escrow Funds. An ex parte hearing was held on June 30, 1994 following which the trial court denied the petition and entered the Order which is the subject of the present appeal.

On appeal to this Court, appellant argues the trial court erred in failing to modify its August 16, 1993 Order and release from escrow $40,000 of the wrongful death proceeds that originally had been allocated to him pending any future Order emanating from the Family Court division. Appellant contends he and his minor daughter are an intact family residing in the same household with his new wife whom he married in January, 1994. There is no evidence of neglect or need, and in fact, daughter is well provided for and cared for by him. Appellant works full-time as an aide for mentally retarded adults, he supports his family, his wife cares for the house, and the daughter currently attends a local Catholic grade school. He contends, accordingly, that there is no reason the $40,000, which originally was allocated to him, should be set aside in an escrow account for potential support of his daughter.

A review of the record reveals the trial court set aside $40,000 in escrow for the minor daughter based on its equitable powers, and in particular, the Commonwealth’s strong interest in protecting the rights of minors. This Court’s scope of review in matters of equity is narrow and limited to determining whether the findings of fact are supported by competent evidence, whether an error of law has been committed or whether there has been a manifest abuse of discretion. Sentz v. Crabbs, 428 Pa.Super. 205, 630 A.2d 894 (1993).

The trial court placed the money in escrow based upon evidence collected by the trial judge’s clerk from the District Attorney’s Office, the CAT Fund, appellant’s attorney and the Welfare Department regarding appellant’s support of his daughter. Although this Court has not been made privy to this information, the record from the June 30, 1994 hearing reveals appellant had given legal custody of Christina to his sister while he was in Puerto Rico from January, 1991 to May, 1993, and a question was raised as to whether appellant was supporting his minor child in his absence. (Slip Op., Halbert, J., 1/11/94, p. 2.) The trial court alluded to the fact that during this period the child was living with her aunt, there may have been a support Order in effect (N.T., 6/30/94, p. 10). Moreover, the record reveals that since appellant arrived on the mainland in 1977, he has traveled back to Puerto Rico on the average of every 18 months for periods of approximately two weeks to vacation, visit family, etc. (N.T. at 19).

During the June 30, 1994 hearing, the trial court also took into account the recent circumstances in appellant’s life, namely the purchase of a home and remarriage. However, the trial court, as parens patriae, found that these changes were too recent to adequately assess whether he will continue to support his daughter. (Slip Op. at 2.) Moreover, the trial court, during this hearing, inquired as to the reasons appellant needed this money at the present time. Appellant’s only response was that he desired to purchase a second house as an investment for his daughter (N.T. at 20-21).

In light of this Court’s strong public policy requiring a father to support his children, we find the trial court’s actions to be supported by competent evidence and not a manifest abuse of its discretion. Sentz, supra; Petto v. Petto, 372 Pa.Super. 558, 539 A.2d 1337 (1988). Father was awarded $275,041.75 of which $40,000, or approximately fourteen per cent (14%) of his share or five per cent (5%) of the total award, was set aside for the well-being of his daughter. When she reaches majority, this money plus interest will be returned to father. Accordingly, we find this holding is in keeping with our prior decisions concerning the equitable powers of the court in family matters. Petto, supra.

Order affirmed.

      . Appellant and his wife also had a minor son, who died seven months after wife’s death.

      . Due to the involvement of this minor child, this Order was not made final until approval by the Administrative Judge of the Orphans’ Court Division, which occurred on August 16, 1993.

      . This figure represents a lump sum payment of $279,932.75 less $4,891 for reimbursement to the Pennsylvania Welfare Department. Appellant has placed this money in a life-time annuity, which pays him $657 per month.

      . We note that the Attorney General did not file a brief on behalf of the Commonwealth, nor did the trial court appoint counsel to file a brief on behalf of the minor child.

      . Appellant denies that there ever was a support Order in effect.