author: WICKERSHAM, Judge: WIEAND, Judge,

text:
    492 A.2d 396
    Judith A. LINDSEY v. Richard L. LINDSEY. Appeal of Mary WAITKUS.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1984.
    Filed April 26, 1985.
    Petition for Allowance of Appeal Denied Oct. 28, 1985.

      William J. Fulton, Harrisburg, for appellant.
    Sally Jo Winder, Shippensburg, for appellees.
    Before WICKERSHAM, WIEAND and HESTER, JJ.
   WICKERSHAM, Judge:

Mary Ellen Waitkus appeals from the order of the Court of Common Pleas of Cumberland County directing the payment of the proceeds of certain life insurance policies to Judith A. Lindsey, widow of Richard L. Lindsey, the deceased insured.

At issue are two life insurance policies owned by Richard Lindsey. The first, paying a $10,000 death benefit, is a group policy provided by Mr. Lindsey’s employer and issued by the Prudential Insurance Company. The second, providing a $500 death benefit was issued by the Washington National Insurance Company. Judith Lindsey, appellee herein, was originally named as the primary beneficiary on both policies. The Lindseys experienced marital difficulties, however, and separated. Subsequent to this separation, Mr. Lindsey substituted Mary Ellen Waitkus, appellant herein, as the primary beneficiary. Mr. Lindsey died on October 21, 1982. Judith Lindsey then brought this action to have the beneficiary changes declared null and void, and to have the proceeds of the life insurance policies distributed to her.

Mr. and Mrs. Lindsey separated in May of 1982. Mrs. Lindsey filed for divorce on June 2, 1982. On June 8, 1982, in conjunction with a request for interim equitable distribution, Mrs. Lindsey obtained a preliminary injunction enjoining Mr. Lindsey from disposing of any marital property, and permitting her to remove some assets from the marital home for use in her new apartment.

Mr. Lindsey changed the beneficiary designation on the Washington policy on July 8, 1982, and on the Prudential policy on October 8, 1982. Appellant Waitkus testified that she did not know of Mr. Lindsey’s intention to change the beneficiaries until after the changes were made. Mrs. Lindsey learned of the changes in beneficiaries only after Mr. Lindsey’s death.

The lower court found that the changes in beneficiary designations were in violation of the injunction issued on June 8, 1982. The court ordered, therefore, that the primary beneficiary designations on both the Prudential and the Washington policies be in the name of appellee Judith Lindsey and that the proceeds be distributed to her. Appellant presents us with the following issues:

1. Whether changes in beneficiary designations on life insurance policies made on July 8 and October 8, 1982 violated a preliminary injunction issued on June 8, 1982 and never moved to a hearing or continued?
2. Whether the divorce action and ancillary claims abated with the death of a party?
3. Whether the changing of a beneficiary designation is the conveyance of an asset?

Brief for Appellant at 3.

In her first issue, appellant argues that the injunction issued on June 8, 1982 was no longer in effect on the dates when Mr. Lindsey changed the beneficiary designations. Since appellant never raised this issue before the lower court, however, we are constrained to find that this argument has been waived. Pa.R.A.P. 302(a).

Appellant next asserts that the divorce action and the ancillary claims abated upon Mr. Lindsey’s death. While we agree with this general contention, see Haviland v. Haviland, 333 Pa.Super. 162, 481 A.2d 1355 (1984), we feel that it is irrelevant to the instant case. The actions in question herein, i.e., the changes in the beneficiary designations, obviously occurred while Mr. Lindsey was still alive. Furthermore, Mr. Lindsey changed the beneficiaries on his life insurance policies at a time when he was enjoined from disposing of any marital property (we have already stated that appellant has waived any objection to the validity or viability of the injunction). It is axiomatic that a court must have the power to enforce its own orders. Thus, the lower court had the authority to void the disposal of any marital property in violation of its injunction.

This brings us to appellant’s third and final issue: whether a change in the beneficiary designation on a life insurance policy is a violation of an order enjoining a party from disposing of “any marital property.” Appellant asserts that a change in beneficiary designation is not a conveyance of an asset. We are constrained to agree with appellant that the injunction did not act to restrain Mr. Lindsey from changing the beneficiary designations on the two insurance policies in question.

It is clear that the naming of a beneficiary on a life insurance policy vests nothing in that person during the lifetime of the insured; the beneficiary has but a mere expectancy. In re Estate of Miller, 402 Pa. 140, 146, 166 A.2d 10, 13 (1960), (concurring opinion by Bell, J.); Equitable Life Assurance Society of the United States v. Stitzel, 299 Pa.Super. 199, 203-205, 445 A.2d 523, 525-26 (1982). Furthermore, the naming of a beneficiary on a life insurance policy is sui generis; it is not a conveyance of the insured’s assets. Equitable Life Assurance Society of the United States v. Stitzel, id., citing In re Estate of Henderson, 395 Pa. 215, 149 A.2d 892 (1959). Thus, when Mr. Lindsey changed the designation of the beneficiary on his two life insurance policies from Mrs. Lindsey to appellant, he did not thereby “convey” any assets to appellant. The changes, therefore, were not disposals of marital assets in violation of the injunction.

The lower court found that “[t]he policies constitute ‘marital assets’ as they were acquired during the marriage, 23 P.S. § 401(f), and were not excluded from such by 23 P.S. § 401(e).” Lower ct. op. at 4. Appellant agrees that the policies constitute marital property, but only to the extent of their cash surrender value. Despite the lack of appellate case law in Pennsylvania on this issue, we agree with appellant’s position.

Diligent research has revealed no Pennsylvania appellate cases on point. A number of foreign jurisdictions, however, have held that only the cash surrender value and not the proceeds of a spouse’s life insurance policy is presumed to be marital property. See, e.g., Hinds v. Hinds, 415 So.2d 1122 (Ala.1982); Walker v. Walker, 631 S.W.2d 68 (Mo.App. 1982); Grost v. Grost, 561 S.W.2d 223 (Tex.Civ.App.1977). In Wisner v. Wisner, 129 Ariz. 333, 631 P.2d 115 (1981), the court stated:

The court adopted the cash surrender value of certain life insurance policies on the husband as being their monetary worth for dissolution. Wife proposes that the policies should have been valued at something greater than their cash value, arguing that, even if an insured has drawn on the cash value of a policy, thus reducing it, the beneficiary is still entitled to the full face value of the policy less any cash drawn, if the insured died. Such an argument is fallacious. An insurance policy upon dissolution is its cash value. Grost v. Grost, 561 S.W.2d 223 (Tex.Civ.App.1977); Ray v. Ray, 336 S.W.2d 731 (Mo.App.1960). See de Funiak-Vaughn Principles of Community Property, § 233, pps. 528-532 (2d Ed., 1971), cf. Blaine v. Blaine, 63 Ariz. 100, 159 P.2d 786 (1945) (referring to value of life insurance policies upon dissolution in terms of cash value.)

Id. at 338, 631 P.2d at 120.

In Bishop v. Eckhard, 607 S.W.2d 716 (Mo.App.1980), while an action for dissolution of marriage was pending, husband changed the beneficiary on his life insurance policy from his wife to his daughter. Before a divorce decree was entered, husband died. Wife brought an action to have the insurance proceeds paid to her rather than to the daughter. The Missouri court stated:

The appellant’s argument that an insurance policy on the life of one of the parties’ involved in a dissolution action constitutes marital property is misplaced. To determine the parties assets in a dissolution action a whole life insurance policy becomes marital property because of its cash value____ It is not to be considered on the basis of the potential for future proceeds.

Id. at 717-18 (citations omitted). The court noted that it need not specifically address this issue since the dissolution action was made moot by husband’s death. Instantly, the action is not moot because we must consider the effect of the court’s injunction on the change in beneficiaries. Nevertheless, the reasoning in the above-quoted passage applies equally to the instant case.

We agree with the analysis in these decisions from other jurisdictions. Thus, in the case at bar, only the cash surrender value of the policies could be considered marital property. Only this value, then, was “frozen” by the injunction. Had Mr. Lindsey not died, and had the case reached the equitable distribution stage, the cash surrender value of the policy owned by Mr. Lindsey would have been included as part of the marital property subject to distribution. Because of Mr. Lindsey’s demise, the divorce action and its ancillary claims abated, Haviland v. Haviland, supra, and, therefore, Mrs. Lindsey will not receive any portion of the cash surrender value of the policies.

Thus, we find that Mrs. Lindsey’s interest as a beneficiary was nothing more than an expectancy. Her interest in the policies themselves was limited to their cash surrender value. Since a change in a beneficiary designation in a life insurance policy is not a conveyance or disposal of a marital asset, Mr. Lindsey’s decision to designate appellant rather than appellee as his beneficiary did not violate the lower court’s injunction issued on June 8, 1982. Thus, the lower court erred in ordering the beneficiary designations on the two policies to be in the name of appellee.

Reversed and remanded so that the beneficiary designations on both the Prudential and the Washington policies be in the name of appellant Mary Ellen Waitkus and the proceeds distributed to her. Jurisdiction is relinquished.

WIEAND, J., files a concurring opinion.

WIEAND, Judge,

concurring:

I concur in the result. However, I find it unnecessary to determine whether the phrase “marital property” in the restraining order was intended to refer to the face amount or to the cash surrender value of life insurance policies owned by one spouse in which the other spouse was named beneficiary. In this case there was no temporary injunction in effect when the decedent changed the beneficiary on his life insurance.

On June 8, 1982, the trial court issued ex parte a temporary injunction restraining Richard L. Lindsey “from disposing of any marital property or jointly held assets.” This order concluded with the following significant language:

This Preliminary Injunction shall continue until June 11, 1982 at 11:45 a.m. o’clock in Court Room No. 3, Cumb. Co. Court House, Carlisle, Pa. at which time and place a hearing upon Plaintiff’s motion for continuance of this injunction and final Interim Order of Distribution of Equitable [sic] pursuant to Section 401(c) of the Divorce Code shall be heard.

The temporary restraining order, therefore, expired by its own terms on June 11, 1982. The record does not disclose any hearing to continue the order; and the record is clear that the restraining order was not extended by further order of the court. Lindsey changed the beneficiary on one of his life insurance policies on July 8, 1982. The beneficiary was changed on the other policy on October 8, 1982. On these dates there was no court order restraining him from changing beneficiaries on his life insurance policies. Therefore, it was error to conclude, as the trial court did, that “the changes [of beneficiary] he made in contravention of the injunction were fraudulent and hence null and void.”

The majority holds that this argument was not raised in the trial court and, therefore, is not properly before this Court for review. A brief review of the proceedings, therefore, is necessary and will reveal the basis for my disagreement with the majority’s analysis. On January 25, 1983, on petition of Judith Lindsey, the trial court issued a special injunction restraining Prudential Insurance Companies of America and Washington National Insurance Company from paying to Mary Ellen Waitkus, the appellant, any proceeds from policies of insurance issued on the life of Richard Lindsey, who died on October 21,1982. Mary Ellen Waitkus, who was the named beneficiary on these policies, was permitted to intervene and requested a hearing. A hearing was held, at which the appellee, Judith Lindsey, was the moving party. Her attorney called the appellant, Mary Ellen Waitkus, as of cross-examination. He asked her questions, inter alia, which, together with her answers, were as follows:

Q. Were you aware that that order of court or that an order of court enjoined Mr. Lindsey from disposing of any marital property or jointly-held assets pending resolution of the claim or equitable distribution?
A. Yes, sir. I knew about it.
Q. You did testify earlier that Mr. Lindsey had expressed to you the idea or a feeling that he didn’t want his wife to get that insurance money, is that correct?
A. Well, he didn’t want her to have it all, that’s what he told me after he had done it.
Q. And you said you didn’t know that they were done until after they were done?
A. Yes, sir, that’s right.

The trial court, following the hearing, entered an order which directed the insurance companies to pay the life insurance proceeds to Mrs. Lindsey. The sole and exclusive reason for the court’s order, as already observed, was that the changes had been in contravention of the temporary restraining order and, therefore, were fraudulent and void. On appeal, Mary Ellen Waitkus has argued that this was error, that there was no injunction in effect at the time when the beneficiaries were changed. In my judgment, appellant has done everything possible to preserve this issue, and it is properly before this Court.

The argument, as herein noted, is a valid one. When the decedent changed the beneficiary on the two policies at issue in this case, there was no court order which restrained him from doing so. When the trial court concluded that the change of beneficiary had violated a court issued injunction, the court fell into error. Therefore, I agree with the majority that the order of the trial court should be reversed.

      . In his concurring opinion, Judge Wieand argues that appellant did not waive this issue. We disagree. After the hearing on the petition, the parties submitted memoranda and presented argument to the court on the legal issues relevant to the case. Appellant’s Memorandum of Law discussed whether the injunction of June 8, 1982 was applicable to the change of beneficiaries; it did not, however, assert that the injunction was no longer in effect at the time decedent changed the beneficiaries. In other words, in argument before the lower court, appellant implicitly accepted the validity of the June 8 injunction, and simply argued that it did not apply to the life insurance policies. We are of the opinion that by failing to preserve the issue of whether the injunction was null and void at the time of the change in beneficiaries in her argument before the lower court, appellant has waived her right to raise the issue before us.
      We agree with Judge Wieand that "the sole and exclusive reason for the court’s order ... was that the changes had been in contravention of the temporary restraining order and. therefore, were fraudulent and void.” Concurring Opinion by Wieand, J. at 79-81. The court's failure to address the legal effectiveness of the June 8 injunction, however, was due to the fact that appellant did not argue in the lower court that the injunction was no longer in effect at the time of the beneficiary change. The court, of course, could not be expected to address an issue that was not before it. The proper place to make this argument in the first instance is in the lower court, not on appeal.

      . Some Pennsylvania Court of Common Pleas cases have valued a life insurance policy for equitable distribution purposes as the cash surrender value. See, e.g., Drake v. Drake, 24 Pa.D. & C.3d 545 (1982); Hutchinson v. Hutchinson, (Allegheny County, Family Division, No. 0796, January, 1981).

      . We do not, by this decision, hold that the court did not have the power to order Mr. Lindsey to maintain Mrs. Lindsey as the primary beneficiary of the two policies. We decide only that the instant order enjoining Mr. Lindsey from disposing of "any marital property" did not encompass the change in the beneficiary designation.

      . Pa.R.C.P. 1531(d) provides:
      An injunction granted without notice to the defendant shall be deemed dissolved unless a hearing on the continuance of the injunction is held within five (5) days after the granting of the injunction or within such other time as the parties may agree or as the court upon cause shown shall direct.
      See also: Commonwealth, Department of Public Welfare v. Mallory, 51 Pa.Cmwlth. 414, 414 A.2d 749 (1980).


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    492 A.2d 401
    ESTATE OF Norman H. GILBERT, Deceased. Appeal of Anna M. REKATZKY.
    Superior Court of Pennsylvania.
    Argued Nov. 28, 1984.
    Filed April 26, 1985.

      Jeremy Ross, Philadelphia, for appellant.
    Before WIEAND, MONTEMURO and CERCONE, JJ.
   WIEAND, Judge:

Norman H. Gilbert, a resident of Philadelphia, died testate on June 5, 1976 at the age of 88. His will, dated April 25, 1973, named as residuary legatees his three daughters, Alberta C. Bacon, Helen Muriel Smith, and Anna M. Rekatzky. A codicil, executed in 1974, named his son-in-law, William L. Rekatzky, as executor. Upon the testator’s death, his estate was insolvent; in the latter days of his life he had transferred virtually all his property to Anna Rekatzky, or into her name and his jointly with right of survivorship. The executor died on November 8, 1976, and letters of administration d.b.n.c.t.a. were issued to A. Groh Schneider, Esquire. He obtained a citation directed to Anna Rekatzky to show cause why she should not return to the estate of her deceased father those assets which she had acquired as a result of transfers between 1974 and 1976. After evidentiary hearings, the orphans’ court ordered Anna Rekatzky to return assets to the estate in the amount of $40,931.82. Exceptions were dismissed, and this appeal followed.

It is argued (1) that the orphans’ court lacked jurisdiction to compel a retransfer of assets by appellant to the estate of the decedent; and (2) that the evidence was insufficient to show that the transfers by the decedent had been induced by undue influence. We find no merit in these contentions and, therefore, affirm.

The Judicial Code provides as follows:

The divisions of a court of common pleas are administrative units composed of those judges of the court responsible for the transaction of specified classes of the business of the court. In a court of common pleas having two or more divisions each division of the court is vested with the full discretion of the whole court, but the business of the court may be allocated among the divisions of the court by or pursuant to general rules.

42 Pa.C.S. § 952. It has been held, therefore, that “[t]he issue of which division [is] proper to hear [an] action is not a question of jurisdiction or of venue.” Baskin & Sears v. Edward J. Boyle Co., 506 Pa. 62, 66, 483 A.2d 1365, 1367 (1984). “[E]ach division of a court of common pleas is vested with the full jurisdiction of the whole court.” Guerin v. Guerin, 296 Pa.Super. 400, 404 n. 3, 442 A.2d 1112, 1113 n. 3 (1982). The remedy for bringing a proceeding in the wrong division of a court is not dismissal but transfer to the correct division. Commonwealth v. Wadzinski, 485 Pa. 247, 254-255, 401 A.2d 1129, 1132 (1978); Balter v. Balter, 284 Pa.Super. 350, 357 n. 7, 425 A.2d 1138, 1142 n. 7 (1981). In the instant case, although appellant asked that the proceeding be dismissed, she made no request that it be transferred to another division.

The Probate, Estates and Fiduciaries Code provides, at 20 Pa.C.S. § 711, as follows:

(a) Provident National Bank Account, which had been transferred into a joint account 5 5,399.82
(b) Philadelphia National Bank Account 2,431.11
(c) Girard Bank Account 4,815.48
(d) Proceeds derived from sale of real estate 28,285.41
540,931.82
Except as provided in section 712 of this code (relating to non-mandatory exercise of jurisdiction through orphans’ court division) ..., the jurisdiction of the court of common pleas over the following shall be exercised through its orphans’ court division:
(17) Title to personal property. The adjudication of the title to personal property in the possession of the personal representative, or registered in the name of the decedent or his nominee, or alleged by the personal representative to have been in the possession of the decedent at the time of his death.

This section mandates that the orphans’ court division exercise jurisdiction to adjudicate ownership of personalty registered in the name of the decedent at the time of his death, whether in his name alone or in the name of the decedent and another person. Thomas Estate, 457 Pa. 546, 550-551, 327 A.2d 31, 33-34 (1974). It seems clear, therefore, that the ownership of bank accounts in the joint names of the decedent and another at the time of the decedent’s death was properly determined by the orphans’ court division.

Section 712 of the Code provides that “[t]he jurisdiction of the court of common pleas over the following may be exercised through either its orphans’ court division or other appropriate division: ... The disposition of any case where there are substantial questions concerning matters enumerated in section 711 (relating to mandatory exercise of jurisdiction through orphans’ court division in general) and also matters not enumerated in that section.” 20 Pa.C.S. § 712(3) (emphasis added).

This section, which grants non-mandatory jurisdiction to the orphans’ court division to exercise jurisdiction of the court in “other matters,” is “intended to avoid multiple actions in different divisions in a case involving two or more questions, one of which would ordinarily be decided by the orphans’ court division and the other by the trial or family division.” Baskin & Sears v. Edward J. Boyle Co., supra, 506 Pa. at 67, 483 A.2d at 1367 (quoting the commentary to 20 Pa.C.S. § 712). Since the orphans’ court division had jurisdiction to determine the ownership of jointly owned accounts and this required an examination of the relationship between appellant and decedent and a determination of whether there was a confidential relationship and/or the exercise of undue influence, the orphans’ court division could also exercise jurisdiction to determine whether undue influence had tainted the transfer of assets into the name of appellant alone. Similarly, the orphans’ court could inquire into the circumstances surrounding the execution and delivery of a deed transferring real estate into joint names with right of survivorship. The orphans’ court’s jurisdiction was not defeated by appellant’s sale of the real estate prior to the citation by which the present proceedings were commenced.

The findings of a judge of the orphans’ court division, sitting without a jury, must be accorded the same weight and effect as the verdict of a jury, and will not be reversed by an appellate court in the absence of an abuse of discretion or a lack of evidentiary support. In re Estate of Cornell, 336 Pa.Super. 594, 597, 486 A.2d 424, 425 (1984). In re Estate of Dembiec, 321 Pa.Super. 515, 519-520, 468 A.2d 1107, 1110 (1983).

This rule is particularly applicable “to findings of fact which are predicated upon the credibility of the witnesses, whom the judge has had the opportunity to hear and observe, and upon the weight given to their testimony.” Herwood v. Herwood, 461 Pa. 322, 336 A.2d 306 (1975). In reviewing the Orphans’ Court’s findings, our task is to ensure that the record is free from legal error and to determine if the Orphans’ Court’s findings are supported by competent and adequate evidence and are not predicated upon capricious disbelief of competent and credible evidence. In re: Estate of Damario, 488 Pa. 434, 412 A.2d 842 (1980). However, we are not limited when we review the legal conclusions that Orphans’ Court has derived from those facts. In re: Ischy Trust, 490 Pa. 71, 415 A.2d 37 (1980).

The orphans’ court in this case found that appellant had occupied a confidential relationship with her father, beginning in March of 1974 and continuing until the date of his death. The court also found that her father had suffered from a weakened intellect during the same period. This caused the burden of proof to shift to appellant to show the absence of undue influence. See: Kees v. Green, 365 Pa. 368, 75 A.2d 602 (1950). The orphans’ court found that appellant had failed to meet this burden. She was unable to show that the alleged gifts made to her by the decedent were the products of a free will. The decedent’s weakened intellect coupled with appellant’s influence borne of her position of confidence, the court concluded, had destroyed decedent’s capacity to dispose freely and independently of his assets. The court’s findings are supported by the record. There is no basis for concluding that the court capriciously disbelieved any competent or credible evidence or systematically discounted evidence favorable to appellants because of prejudice or bias. Similarly, we are unable to perceive any error of law.

Although a parent-child relationship does not conclusively suggest a confidential relationship, it is a fact to be considered. Estate of Keiper, 308 Pa.Super. 82, 87, 454 A.2d 31, 34 (1982). Moreover, “[transactions by which a decedent shortly before his death practically strips himself of all his available property are naturally guarded with suspicion, and are to be scrutinized with a keen and somewhat incredulous eye.” Id., 308 Pa.Superior Ct. at 88, 454 A.2d at 34, quoting Estate of Wise, 182 Pa. 168, 171, 37 A. 936, 936 (1897). In Estate of Keiper, supra, a case similar to the present one, the decedent had recently lost his wife. His son-in-law, to whom the decedent had given a power of attorney, transferred most of the decedent’s money, total-ling almost $40,000.00, into a joint account in the name of the decedent and a daughter, who was the wife of the son-in-law, with right of survivorship. With these transactions the decedent’s son-in-law, upon whom the decedent had leaned heavily when making decisions and administering his business affairs, had stripped his father-in-law of assets and had thereby effectively revoked the decedent’s will, which contained an expression of intent to benefit his three children equally. These actions, held the Court, “must be regarded with such suspicion as to shift the burden of proof to the recipient of the purported gift.’’ Id., 308 Pa.Super. at 88, 454 A.2d at 34. Although in the case sub judice appellant was granted her father’s power of attorney only after much of his property had already been put into her name, and the decedent had acted personally to transfer funds to joint accounts and his home to joint title, we agree with the orphans’ court that there was a confidential relationship between appellant and the decedent which shifted the burden to appellant to prove that the transfers had been the product of the decedent’s free will. The record supports the orphans’ court’s conclusion that appellant failed to meet this burden. She failed to show that the transfers by the decedent were the products of a free will and not a will overcome by improper influence. The order of the orphans’ court, therefore, will be affirmed.

Judgment affirmed.

      . As itemized by the orphans’ court, this amount included the following:


author: CIRILLO, Judge:

text:
    492 A.2d 405
    Ray A. LOKAY v. LEHIGH VALLEY COOPERATIVE FARMERS, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 17, 1984.
    Filed April 26, 1985.

      Oldrich Foucek, III, Allentown, for appellant.
    Thomas E. Weaver, Jr., Allentown, for appellee.
    Before CAVANAUGH, CIRILLO and JOHNSON, JJ.
   CIRILLO, Judge:

Lehigh Valley Cooperative Farmers, Inc. (hereafter “Le-high”), appeals an order of the Court of Common Pleas of Lehigh County dismissing its exceptions and denying its motions for judgment notwithstanding the verdict or, in the alternative, for a new trial. We affirm.

While motions for judgment n.o.v. and for a new trial are usually combined as alternative motions, we must review rulings on them under different standards. Judgment n.o.v. is proper only in a clear case; in reviewing its denial, we examine the evidence in the light most favorable to the verdict-winner, including all reasonable inferences arising from the evidence, and we resolve any conflicts in the evidence in favor of the verdict-winner. Giambra v. Aetna Casualty and Surety Co., 315 Pa.Super. 231, 233, 461 A.2d 1256, 1257 (1983); Mattox v. City of Philadelphia, 308 Pa.Super. 111, 115, 454 A.2d 46, 48 (1982), quoting Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 351, 414 A.2d 100, 103 (1980); Schneider v. Albert Einstein Medical Center, Etc., 257 Pa.Super. 348, 354-55, 390 A.2d 1271, 1274 (1978). A verdict for the plaintiff, which survived a motion for judgment n.o.v., must stand if there is evidence upon which the jury could find that the defendant was liable. Karam v. Pennsylvania Power & Light Co., 205 Pa.Super. 318, 322, 208 A.2d 876, 878 (1965); Powell v. Wandel, 188 Pa.Super. 57, 146 A.2d 61 (1958).

By contrast, the trial court has broad discretion whether to grant a new trial. Its denial demands that we examine all the evidence and decide whether the trial court manifestly or capriciously abused that discretion or made an error of law. Yandrich v. Radic, 291 Pa.Super. 75, 79, 435 A.2d 226, 228-29, appeal dismissed 499 Pa. 271, 453 A.2d 304 (1982) ; Scaife Co. v. Rockwell-Standard Corp., 446 Pa. 280, 290, 285 A.2d 451, 456, cert. denied 407 U.S. 920, 92 S.Ct. 2459, 32 L.Ed.2d 806 (1972); Calabria v. Brentwood Motor Coach Co., 412 Pa. 486, 194 A.2d 918 (1963); Ferick Excavating and Grading v. Senger Trucking Co., 315 Pa.Super. 69, 74, 461 A.2d 800, 802 (1983); see also Bumbarger v. Kaminsky, 311 Pa.Super. 177, 457 A.2d 552 (1983) .

Appellant Lehigh processes raw milk for sale to retail stores. In the early 1970s, appellant began negotiations with Topeo Associates, Inc., an Ohio firm and appellee’s former employer, for appellant’s sale of milk products to various retail food chains. As part of these negotiations, appellant sent Topeo copies of its financial reports for the fiscal years ending January 31, 1970, and January 31, 1971. Appellee reviewed these two reports as part of his duties as Division Manager for Topeo.

Appellant’s chief operating officer at that time, Richard Allison, told appellee on three occasions in 1971 that appellee might consider employment with appellant. Early in 1972, Allison and appellee began to negotiate terms for appellee’s employment. This involved at least two meetings and several telephone conversations; during one meeting appellee and Allison discussed appellant’s financial status. In March, 1972, appellee joined Lehigh as a vice-president.

In July, 1974, appellee was discharged by appellant’s new president, Robert Barry. Appellee’s dismissal did not result from any fault in his performance; rather, appellant was reducing its management staff because its financial health was not as it had believed. An audit of several of its annual reports, including those for the 1970 and 1971 fiscal years, disclosed numerous errors. Allison was fired upon the discovery of these errors; appellant claims that Allison deliberately misrepresented its finances while he was an officer of it.

Appellee sought but did not obtain new employment similar to his former office at Lehigh. Finally, he found employment as a consultant to a recycling business. He sued appellant for breach of contract and fraudulent misrepresentation, alleging, inter alia, that he was induced to resign from Topeo and join appellant partly on the basis of appellant’s 1970 and 1971 reports, which were discovered to have misstated appellant’s economic condition.

The jury found for appellee on both his breach of contract and fraud claims. The court fixed damages at $28,490.48 on the contract count; the jury awarded $162,000.00 compensatory damages on the fraud count.

Appellant’s questions before us pertain only to the fraudulent misrepresentation claim; it does not challenge the finding of liability or award of damages for breach of contract. Instead, appellant disputes the jury’s interpretation of the facts under the law applicable to fraud. First, appellant asks whether the evidence was sufficient to support the jury’s finding of fraudulent misrepresentation. Second, it inquires whether, assuming that the evidence was sufficient, the jury was justified in awarding appellee the stated amount of compensatory damages for fraud.

Pennsylvania law on fraud was thoroughly reviewed in Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243 (1983). In that case, we stated that a determination of fraud normally requires a finding of: 1) a misrepresentation; 2) a fraudulent utterance of it; 3) the maker’s intent that the recipient be induced thereby to act; 4) the recipient’s justifiable reliance on the misrepresentation; and 5) damage to the recipient proximately caused. Id., 318 Pa.Superior Ct. at 107, 464 A.2d at 1252.

Appellant argues that appellee did not prove the third and fourth elements of his claim. Appellant asserts that it could not intend that appellee rely upon the 1970 and 1971 reports because those documents were meant for perusal only by appellant’s shareholders, creditors and the like, not by prospective employees; appellee was thus not a “foreseeable reader” of the reports. In the alternative, appellant argues that, because it had no knowledge of the fabrications in the reports, it could not intend that appellee act upon their misrepresentation of appellant’s financial condition.

We disagree with those claims. Appellant admits that appellee read the two reports at issue in his capacity as a Topeo employee, and that it knew he read them. Therefore, appellant’s characterization of appellee as outside the scope of foreseeable recipients of the reports’ misrepresentations is meritless.

Likewise, appellant’s argument that it was a victim of the same fraud as was appellee, and so cannot be liable to him for it, is meritless. Appellant misreads the grounds underlying its liability to appellee.

A corporation is a creature of legal fiction, and must “act” through its officers, directors or other agents. Ashley v. Ashley, 482 Pa. 228, 393 A.2d 637 (1978); Pollock Industries, Inc. v. General Steel Castings Corp., 203 Pa. Super. 453, 201 A.2d 606 (1964) (allocatur denied). In Pennsylvania, a corporate officer’s scope of authority to act for the corporation is established by the corporation’s bylaws or, in their absence, by resolution of the board of directors. 15 P.S. § 1406. In addition, the active management of a corporation has historically governed employee relationships. Emperee v. Meyers, 440 Pa. 430, 269 A.2d 731 (1970). While appellant now alleges Allison’s fraud as a defense to its own liability, it does not deny his managerial authority, as chief operating officer, to recruit upper-level employees; we would reject any such denial on two grounds.

First, corporations have long been able to confer express power to hire on one or more officers. P. Curtis Ko Eune Co. v. Manayunk Yarn Manufacturing Co., 260 Pa. 340, 103 A. 720 (1918); Section 1406, supra. However, independent of any express grant of power, a corporation is bound by its agent’s acts, if those acts were performed within the agent’s implied or apparent scope of authority, unless the agent acted for his own benefit without the corporation’s ratification of his action. Rochez Brothers, Inc. v. Rhoades, 527 F.2d 880 (3d Cir.1975); United States v. Hougland Barge Line, Inc., 387 F.Supp. 1110 (W.D.Pa. 1974); Todd v. Skelly, 384 Pa. 423, 428, 120 A.2d 906, 909 (1956); Sayre Land Co. v. Borough of Sayre, 384 Pa. 534, 121 A.2d 579 (1956); Chestnut Street Trust & Savings Fund Co. v. Record Publishing Co., 227 Pa. 235, 75 A. 1067 (1910); Pollock Industries, supra; Mickshaw v. Coca Cola Bottling Co., Inc., of Sharon, Pennsylvania, 166 Pa.Super. 148, 70 A.2d 467 (1950); Hahnemann Hospital v. Golo Slipper Co., 135 Pa.Super. 398, 5 A.2d 605 (1939); Annot., 28 A.L.R.2d 929 (1953). “Apparent authority” arises when a corporation permits its agent to assume a certain power or authority, or represents him as having it. Ervin v. City of Pittsburgh, 339 Pa. 241, 14 A.2d 297 (1940); Wood Co. v. McCutcheon, 136 Pa.Super. 446, 7 A.2d 564 (1939). Here, appellant has neither proven nor even argued that recruiting appellee was outside the express, implied or apparent scope of Allison’s authority as chief operating officer, or that, in recruiting appellee, Allison acted for his own benefit without appellant’s ratification.

Second, even if a corporation can raise the defense that an officer acted — specifically, contracted — outside the scope of his authority, it is estopped from doing so where it has. received and enjoyed the benefits of that act or contract. Emperee v. Meyers, supra; C.L. McClain Fuel Corp., to Use of Wayne Title & Trust Co. v. Lineinger, 341 Pa. 364, 19 A.2d 478 (1941); Blumberg v. Broad Street Trust Co., 329 Pa. 471, 198 A. 27 (1938); Marian v. Peoples-Pittsburgh Trust Co., 149 Pa.Super. 653, 27 A.2d 549 (1942); Osborne v. Victor Dairies, Inc., 138 Pa.Super. 117, 10 A.2d 129 (1940); Wood Co. v. McCutcheon, supra. Appellant received and enjoyed the benefits of its employment contract with appellee without objection for more than two years; it then discharged him because of its own difficulties, not because of any failing in his performance as an officer.

Appellant’s second contention is that the record does not support the award of $162,000.00 compensatory damages for fraud. Its underlying basis for this assertion is that appellee was awarded damages both for breach of his employment contract with appellant and for appellant’s fraud in inducing that contract. Appellant argues in essence that appellee’s contract and tort claims concern a single wrong: appellee relied on the misrepresentations in appellant’s annual reports when he left Topeo and joined appellant, and he was dismissed from appellant when the latter discovered those same misrepresentations. Appellant concludes that because of this, appellee is fully compensated by the award for breach of contract.

We cannot agree. Appellee suffered two superficially related but nonetheless distinct injuries: he was fraudulently induced to quit Topeo, where he held a high managerial position, resettle himself and his family in a new state and begin work for appellant, and then was fired from appellant in breach of his employment contract with it. Two separate wrongs were inflicted upon him, and our duty now is simply to determine whether the record supports the jury’s award for the first one. We conclude that it does.

Damages for fraud are limited to what losses were immediately and proximately caused by the fraud. Crawford v. Pituch, 368 Pa. 489, 84 A.2d 204 (1951); Clement Martin, Inc. v. Grissey, 191 Pa.Super. 464, 157 A.2d 412 (1960). The plaintiff “is entitled to all pecuniary losses which result as a consequence of his reliance on the truth of the [defendant’s] representations.” Delahanty, supra, 318 Pa.Super. at 117, 464 A.2d at 1257. It is equally true that assessment of damages is for the jury:

The determination of damages is a factual question to be decided by the fact-finder. This duty of assessing damages is within the province of the fact-finder and should not be interfered with unless it clearly appears that the amount awarded resulted from partiality, caprice, prejudice, corruption or some other improper influence. The fact-finder must assess the worth of the testimony, by weighing the evidence and determining its credibility, and by accepting or rejecting the estimates of the damages given by the witnesses. In reviewing the award of damages, the appellate courts should give deference to the decisions of the trier of fact who is usually in a superior position to appraise and weigh the evidence.

Delahanty, supra, 318 Pa.Super. at 117, 464 A.2d at 1257 (citations omitted). See also Little v. York County Earned Income Tax Bureau, 333 Pa.Super. 8, 22-23, 481 A.2d 1194, 1202 (1984). Under these principles, an appellate court will not find a verdict excessive unless its amount shocks the court’s sense of justice. Weed v. Kerr, 416 Pa. 233, 205 A.2d 858 (1965); Christides v. Little, 274 Pa.Super. 343, 348, 418 A.2d 438, 440 (1980); Murphy v. Penn Fruit Co., 274 Pa.Super. 427, 418 A.2d 480 (1980); Robert v. Chodoff, 259 Pa.Super. 332, 393 A.2d 853 (1978).

The trial court instructed the jury on determining damages for fraudulent misrepresentation, and appellant does not contest those instructions; it disputes instead the result the jury reached by applying them.

The court, in its opinion dismissing appellant’s exceptions and denying its motions for judgment n.o.v. or a new trial, summarized appellee’s evidence of what he lost by leaving Topeo, including his salary and the value of fringe benefits at the time of his departure and projected increases in that salary. At first, recovery of these losses appears to be recovery of a lost expectation, in violation of the rule that a fraud plaintiff is limited to damages for "actual loss.” However, in an employment context lost future income is in fact what the plaintiff loses when he is induced to leave an otherwise on-going position; this is not the archetypal fraud fact-pattern in which a plaintiff was tricked into buying something for more than it was worth, or selling for less than that. See, e.g., Glick v. Campagna, 613 F.2d 31 (3d Cir.1979); Sands v. Forrest, 290 Pa.Super. 48, 434 A.2d 122 (1981); Polaski v. Levin, 176 Pa.Super. 370, 107 A.2d 876 (1954). Appellee’s loss of his salary and benefits from Topeo was the injury caused by appellant’s fraudulent misrepresentation; his decrease in income following his dismissal from appellant was the damage from appellant’s breach of contract. The trial court hypothesized several methods by which the jury could have decided upon $162,000.00 as compensation for the loss caused by appellant’s fraud; the court noted, however, that we cannot know precisely how a jury arrives at a verdict and that its verdict need not be one of mathematical certainty. See Duquesne Light Co. v. Rippel, 329 Pa.Super. 289, 478 A.2d 472 (1984). See also Aiello v. Ed Saxe Real Estate Inc., 327 Pa.Super. 429, 476 A.2d 27 (1984); Princess Hotels International v. Hamilton, 326 Pa.Super. 226, 473 A.2d 1064 (1984).

After reviewing appellee’s evidence, we cannot say that the amount set by the jury shocks our sense of justice or clearly resulted from “partiality, caprice, prejudice, corruption or some other improper influence.” This being so, we will not breach our deference to the trier by interfering with its award.

The order of the Court of Common Pleas dismissing appellant’s exceptions and denying its motions for judgment n.o.v. or a new trial is affirmed.

Order affirmed.


author: BECK, Judge: McEWEN, Judge,

text:
    492 A.2d 411
    Francis D. PATTON and Sandralee L. Patton, His Wife, Appellants, v. REPUBLIC STEEL CORPORATION, a New Jersey Corporation; Marcellus C. Schwartz and Blanche R. Schwartz, His Wife; and Lawyers’ Abstract Company, a Pennsylvania Corporation, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 27, 1983.
    Filed April 26, 1985.

      Jay N. Silberblatt, Pittsburgh, for appellants.
    Donald D. Saxton, Jr., Washington, for appellees.
    Before BROSKY, McEWEN, and BECK, JJ.
   BECK, Judge:

This is an appeal from an order granting the preliminary objections of appellee Republic Steel Corporation (“Republic”) and dismissing the complaint of appellants, plaintiffs below, against Republic. For the reasons stated below we reverse and remand.

In November 1977, appellant Francis D. Patton purchased a tract of land in West Deer Township, Allegheny County, from defendants Marcellus and Blanche Schwartz. Mr. Patton erected a single-family dwelling on the property which was completed in February 1980. He then married Sandralee L. Patton, and the couple resided in this dwelling. Republic’s Russellton bituminous coal mine underlies the Pattons’ property. The Pattons allege that Republic commenced and/or recommenced mining operations “on or about October of 1980 to April of 1981” (Complaint, II11). In March 1981, appellants’ land began to shift and subside, causing damage to their residence.

Appellants subsequently brought the instant action against Republic and the other defendants. Their complaint alleged, inter alia, that the subsidence damage to their home had been caused by Republic’s negligence. Appellants further alleged that Republic was liable to them because it had failed to comply with the notice provisions of the Bituminous Mine Susidence and Land Conservation Act, Act of April 27, 1966, P.L. 31, 52 P.S. §§ 1406.1 et seq. (“1966 Act”).

Republic’s rights to the coal in question are traceable to a 1918 deed from George and Ida Fechter to Ford Collieries, Inc. (“the 1918 deed”). This deed granted Ford Collieries ownership of the coal itself “TOGETHER with the right of the party of the second part [Ford Collieries], its successors or assigns, to mine out and remove all coal free from all liability for damages done the surface or injury of any sort arising from the mining and removal of all said coal.” There are three separate estates inherent in a tract of land: the surface, mineral and subjacent support estates. The 1918 deed conveyed to Ford Collieries two of the three estates inherent in the tract of land, namely the estate in the coal itself and the estate of subjacent support. The Fechters retained only the surface estate. See Klein v. Republic Steel Corporation, 435 F.2d 762 (3rd Cir.1970); Stewart v. Chernicky, 439 Pa. 43, 266 A.2d 259 (1970); Atherton v. Clearview Coal Co., 267 Pa. 425, 110 A. 298 (1920); Scranton v. Phillips, 94 Pa. 15 (1880).

Republic argues that the 1918 deed by its terms relieves them of any liability. While we agree that by the terms of the deed, appellants have no general property interest against Republic in subjacent support of their land, appellants’ claims are not based on the 1918 deed. Rather, they are statutory in nature.

Appellants claim that Republic is liable to them by virtue of the Act of July 2, 1937, P.L. 2787, 52 P.S. § 1407 (“1937 Act”), which makes it unlawful for an operator to conduct mining operations in such a negligent manner as to cause the caving in, collapse, or subsidence of a dwelling, and section 1406.10 of the 1966 Act, which imposes on mine owners and operators a duty to notify affected surface landowners of the commencement or recommencement of mining operations.

Republic’s preliminary objections alleged that the complaint failed to state a claim on which relief can be granted, and further alleged that the 1937 Act and section 4 of the 1966 Act, 52 P.S. § 1406.4, are unconstitutional because they work a taking of property without just compensation.

The trial court granted Republic’s preliminary objections and dismissed appellants’ complaint. In its opinion, the court stated that the reason for its decision was that appellants had no remedy under the 1966 Act. Appellants argue that the court erroneously interpreted the 1966 Act. In the alternative, appellants maintain that they should be permitted to proceed on their negligence claim based on the 1937 Act even if they have no claim under the 1966 Act.

With respect to the 1966 Act, the crucial issue is whether the statute obligated Republic to notify the Pattons of its mining activities. It is undisputed that Republic sent a notice pursuant to § 1406.10 of the 1966 Act to the Schwartzes, appellants’ predecessors in title, in 1967. Appellants contend that Republic also had a duty to notify them of the recommencement of mining after they acquired the subject property.

In holding that Republic had no duty to inform appellants of its intent to mine pursuant to § 1406.10 of the 1966 Act, the trial court’s opinion contravenes the language and policy of the statute, and deprives appellants of the rights which the legislature intended to secure for them.

It is axiomatic that legislative intent is our touchstone in interpreting a statute. 1 Pa.C.S. § 1921(a); Appeal of Neshaminy Auto Villa Ltd., 25 Pa.Commw. 129, 358 A.2d 433 (1976). In enacting the Bituminous Mine Subsidence and Land Conservation Act, the legislature stated clearly its goals, policies, and intentions. In section 3 of the 1966 Act, 52 P.S. § 1406.3, the legislature stated that the protection of land and structures from subsidence caused by subsurface bituminous mining is “related to the economic future and well-being of Pennsylvania” and “necessary to the safety and welfare of the people.” The legislature further found that “[i]n the past, owners of surface structures have not in many instances received adequate notice or knowledge regarding subsurface support, or lack thereof, for surface structures, and therefore the State must exercise its police powers for the protection of the structures covered herein.” 52 P.S. § 1406.3(6).

To remedy the stated evils and accomplish its stated policy goals, the legislature then set up a statutory scheme with four key provisions relating to the rights of surface landowners and the duties of mine operators to notify landowners of their activities:

(1) Automatic protection against subsidence damage for residences, cemeteries, and certain other noncommercial structures in place when the Act became effective in 1966 (§ 1406.4);
(2) The right of landowners to purchase protection for structures not covered by § 1406.4, either because they are not of a type listed in that section or because they were erected after 1966 (§ 1406.15);
(3) The duty of the mine owner to give notice to the record surface owner of its intent to commence or recommenee mining six months before doing so (§ 1406.10); and
(4) The duty of the grantor of the surface estate to certify whether the land has a right of protection against subsidence, and if no such right attaches, to notify the grantee that he may purchase such protection from the mine owner (§ 1406.14).

This case involves the duty to notify under § 1406.10. Appellee Republic maintains that it did all the statute required of it when it gave notice to appellants’ predecessors in title in 1967. Specifically, Republic contends that it had no duty upon recommencing mining operations in 1980 to notify appellants, who had acquired the overlying land three years earlier, at a time when it appears that there were no ongoing mining operations. The trial court agreed, holding that the word “recommenced” in § 1406.10 referred to the effective date of the 1966 Act and applied only to mines which were existing but dormant at that time. Appellee Republic seems to suggest that we go even further and effectively read the word “recommenced” out of the statute on the grounds that subsequent purchasers receive sufficient notice from their grantors and that notifying surface landowners each time mining is recommenced would be too burdensome on the mine owners.

We find neither the trial court’s interpretation nor Republic’s suggested interpretation satisfactory. The trial court’s construction finds no support in the language of § 1406.10, which does not include mention of the effective date, a fact which is telling because other provisions of the statute do contain clear references to the effective date. Where the legislature includes specific language in one section of a statute and excludes it from another, it should not be implied where excluded. Pennsylvania Agricultural Cooperative Marketing Association v. Ezra Martin Co., 495 F.Supp. 565 (M.D.Pa.1980). Republic’s position is contrary to the hornbook principle of statutory construction that all words and provisions of a statute must be given effect, because the General Assembly is not presumed to have intended them as mere surplusage. 1 Pa.C.S. § 1922; Commonwealth v. Lobiondo, 501 Pa. 599, 462 A.2d 662 (1983); Hess v. Hess, 327 Pa.Super. 279, 475 A.2d 796 (1984). Its effectively reading the word “recommenced” out of the statute is therefore not a correct interpretation of the statute.

These principles require us to interpret the statute so as to impose on Republic a duty to notify the Pattons when it recommenced mining. Section 1406.10 provides that “every owner, operator, lessor or lessee ... or other person in charge of ... any bituminous coal mine or mining operation presently open, or hereafter opened or reopened ” (emphasis added) shall give notice of the intent to commence or recommence mining. A reasonable reading of this section indicates that the General Assembly intended to impose the duty to notify surface owners of the commencement or recommencement of mining on the owners or operators of all bituminous mines.

The trial court held, and Republic argues before us (Appellee’s Brief at 22), that § 1406.14, requiring grantors to give deed notice of the existence or non-existence of support rights to their grantees obviates the need for further notice from the mine owner. Precisely the contrary is the case. The intent of the statute is for surface owners to be made aware of the existence of any mine under their land and whether that mine is being actively worked, giving rise to subsidence hazards against which the surface owners then have the opportunity to protect themselves. This requires not only the deed notice of what support rights already exist, but also notice from the mine operator when an inactive mine is being reopened.

Section 1406.14 only requires grantors to certify whether the estate being conveyed includes the right of support and to state that such rights may be purchased from the owners of the mineral estate if the land is not now so protected. It does not require the grantor to notify the grantee of the identity of any mining company holding rights to the underlying coal. Neither must the grantor state whether any mining operations have taken place or are now taking place. Informing the buyer of the status of the support rights and of the procedures to secure support rights under § 1406.15 is meant to indicate to the buyer what, if anything, he need do to secure protection against subsidence when mining is taking place beneath his land. The rights of which the buyer must be informed in the deed can be exercised only if the buyer has knowledge of the identity of the owner of the mineral estate and its intention to commence or recommence mining. Section 1406.10 places on the mine owner the duty to provide this information to the surface owner.

Republic contends that a duty to notify subsequent purchasers should not be imposed on the mine owner because it would be too burdensome. The trial court agrees; see Trial Court Opinion at 3. We find this argument unpersuasive. Section 1406.5 of the 1966 Act requires the mine owner to apply to the Department of Environmental Resources (“DER”) for a permit before a mine subject to the Act is “opened, reopened, or continued in operation.” Such application must include a map showing “the name of the record owner or owners of said surface structures” overlying the proposed mine. The section further empowers DER to promulgate rules or regulations requiring the updating of such maps. Therefore, a duty to give appropriate notice to subsequent purchasers of the surface estate is not overly burdensome, since it merely asks the mine owner to refer to information it is already required to maintain.

Additionally, we believe that the mine owner, having invested extensive engineering and surveying effort into its mining operations, and being aware that its activities could give rise to a risk of serious harm to the overlying land, is in a better position to know whether a particular piece of property is at risk from a certain mine and to maintain records of the owners of such property. It would also seem under the circumstances not to be good business practice for the mine owner to remain ignorant of who owns the overlying land.

We therefore hold that the 1966 Act, properly construed, imposed a duty on Republic to give notice to the Pattons which their complaint alleges Republic failed to meet. Appellants’ complaint thus states a cause of action under the 1966 statute, and the trial court erred in dismissing appellants’ complaint with respect to the 1966 Act.

Turning to the question whether the complaint also states a cause of action under the 1937 Act, we agree with appellants that it does, and that the court erred in dismissing appellants’ complaint with respect to the 1937 Act.

The grounds of the trial court’s decision to dismiss those counts of appellants’ complaint which pleaded a cause of action under the 1937 Act are not clear. The opinion of the trial court makes no reference whatsoever to the 1937 Act, leaving us in the dark as to the basis for its decision. We need not speculate further about the basis for the trial court’s decision, nor need we remand for additional explication, because in any case appellants’ complaint should not be dismissed. The 1937 Act imposes liability on “any owner, operator, director, or general manager, superintendent, or other person in charge of or having supervision over any bituminous coal mine or mining operation in any county of the second class” who conducts mining operations “in such a negligent manner as to cause the caving in, collapse, or subsidence of____any dwelling or other structure used as a human habitation.” 52 P.S. § 1407. Appellants’ complaint, at paragraph 13, alleges that the damages sustained by appellants

were a direct and proximate result of the negligence of the defendant, Republic Steel, generally and in the following particulars:
e. In failing to inspect the surface of the property under which the defendant would be commencing and/or recommencing mining operations, and/or ...
h. In conducting its mining operations in such a careless and reckless manner as to cause surface subsidence, and/or ...
k. In otherwise failing to use due care and caution under the circumstances.

Complaint, ¶ 13.

The complaint then proceeds to detail the resulting subsidence of appellants’ land and the damage to their home. These allegations, if proven, would establish that Republic had engaged in bituminous mining operations “in such a negligent manner as to cause the caving in, collapse, or subsidence of ... [a] dwelling.” 52 P.S. § 1407. A complaint should be dismissed on preliminary objections “only in cases that are clear and free from doubt, i.e., it must appear with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff.” Donnelly v. DeBourke, 280 Pa.Super. 486, 490, 421 A.2d 826, 828 (1980). Since appellants’ complaint unambiguously avers that their home suffered subsidence damage as a result of negligent mining activities by Republic, it clearly avers facts which would permit recovery under § 1407. Therefore, the court erred in dismissing appellants’ complaint with respect to the 1937 Act.

We recognize that our holding that the complaint states a cause of action under both the 1937 and 1966 Acts raises the issue of how these two statutes are interrelated. The 1966 Act only states that it repeals “all acts and parts of acts” which are inconsistent with it. 52 P.S. § 1406.20. Because this question was not addressed by the trial court in its ruling on appellees’ preliminary objections or by the parties in their briefs and arguments before this Court, we will not decide it here. However, in the interest of providing comprehensive guidance to the trial court on remand, we note that repeals by implication are not favored, and a later statute will not be held to repeal an earlier statute by implication if any other reasonable construction is possible. Consumers Education and Protective Association v. Schwartz, 495 Pa. 10, 432 A.2d 173 (1981); see also 1 Pa.C.S. § 1971(c). “Repeal by implication arises only where language used in the later statute is irreconcilably repugnant to the provisions of the earlier statute so as absolutely to preclude a consonant construction of both.” Duda v. State Board of Pharmacy, 38 Pa.Commw. 378, 381, 393 A.2d 57, 59 (1978).

Republic then argues that we should affirm the dismissal of appellants’ complaint on the grounds that both statutes involved are unconstitutional. The constitutionality arguments rest on the Taking Clause of the Fifth Amendment and the impairment of contracts clause of Article I, § 10 of the United States Constitution, and corresponding Pennsylvania constitutional provisions.

With respect to the constitutional challenge to the 1966 Act, we need not reach the merits of Republic’s claim because it has been waived to the extent it is relevant. In its preliminary objections, Republic only argued that section Ip of the 1966 Act, 52 P.S. § 1406.4, was unconstitutional. Appellants’ claim does not rest on § 1406.4, as that section applies only to structures in place on April 27, 1966. Therefore, section 1406.4 is irrelevant to this appeal, and we need not rule on its constitutionality. In its brief before this Court, Republic belatedly advances the proposition that section 10 of the 1966 Act, 52 P.S. § 1406.10, which is relevant to appellants’ cause of action, is likewise unconstitutional. We reach no decision on the merits of this claim because Republic’s failure to include it in its preliminary objections constitutes a waiver. Pa.R.C.P. 1028(a, b); Harkins v. Zamichieli, 266 Pa.Super. 401, 405 A.2d 495 (1979).

Republic’s constitutional challenge to the 1937 Act, however, was raised in its preliminary objections and is therefore properly preserved for appellate review. Although the opinion of the trial court does not specifically address the issue, we believe that our holding that appellants’ complaint states a cause of action under the 1937 Act requires us to decide the constitutional question at this juncture.

We hold that the 1937 Act is constitutional. We begin our analysis by noting the principle that legislative enactments enjoy a strong presumption of constitutionality, and that a statute shall not be declared unconstitutional unless it clearly, palpably and plainly violates the Constitution. In the Interest of Jones, 286 Pa.Super. 574, 429 A.2d 671 (1981); Kirk v. Unemployment Compensation Board of Review, 57 Pa.Commw. 92, 425 A.2d 1188 (1981); Singer v. Sheppard, 33 Pa.Commw. 276, 381 A.2d 1007 (1978). Republic has failed to carry this heavy burden of demonstrating unconstitutionality.

Republic argues that the 1937 Act is indistinguishable from the Pennsylvania statute found unconstitutional in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922), rev’g Mahon v. Pennsylvania Coal Co., 274 Pa. 489, 118 A. 491 (1922). In Mahon, the United States Supreme Court struck down the Kohler Act, Act of May 27, 1921, P.L. 1198, 52 P.S. §§ 661 et seq., as violative of the Taking Clause of the Fifth Amendment and the impairment of contracts clause of Article I, § 10.

The Kohler Act regulated the mining of anthracite coal, providing that “it shall be unlawful for any owner [or] operator ... so to mine anthracite coal as to cause the caving-in, collapse, or subsidence of” various enumerated structures and places. 52 P.S. § 661. By its express terms it appears to have stated a rule of strict liability. In contrast, the 1937 Act, although generally drafted along the lines of the Kohler Act, differs in a crucial respect. Liability is imposed only if mining operations are conducted “in such a negligent manner” as to cause subsidence. In Klein v. Republic Steel Corp., 435 F.2d 762 (3d Cir.1970), the Court of Appeals for the Third Circuit stated its belief that the legislature in 1937 was mindful of the Mahon decision, and intended by this change in the nature of the cause of action to regulate bituminous coal mining in a constitutionally valid manner. The Klein court ultimately did not reach a decision on the constitutionality of the 1937 Act, although the issue was raised, because it held that the plaintiffs complaint failed to make the requisite showing of negligence on the part of the defendant. However, we find its commentary on the 1937 Act instructive and we believe the court’s opinion reflects an inclination to uphold the 1937 Act.

The element of negligence is sufficient to distinguish the instant case from Mahon. Under the Kohler Act a mining company could be enjoined by injunction from mining if subsidence had resulted or would result despite the exercise of the utmost care. This clearly would impose an excessive burden on the mine operator. Under 1937 Act it is not the mere occurrence of subsidence which gives rise to liability but rather the mine operator’s negligence. We believe this strikes a better balance between the private rights and public interests involved.

Republic nevertheless argues that because it owns the estate of subjacent support, any statutory regulations of its mining activities with respect to this coal necessarily constitute a taking of the property interest inherent in that estate and an impairment of the contractual bargain involved in the conveyance of the estate. We disagree. With respect to the property interests, the Supreme Court has upheld land use regulations which adversely affected the value of real property interests where the state legislature acted reasonably to protect the general welfare. See, e.g., Goldblatt v. Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962). In Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), the Supreme Court, distinguishing Mahon, upheld as a reasonable land use regulation a New York City historic preservation law which adversely affected the value of an estate in real property, namely the “air rights” over Grand Central Terminal, by restricting the kind and extent of development which could take place. We believe the 1937 Act, which requires only that Republic utilize its property interests in a non-negligent manner, is a reasonable land use regulation more comparable to Penn Central than to Mahon.

As to the alleged impairment of contractual obligations, at most the 1937 Act limits Republic’s ability to contract away liability for its negligence. Statutes which have an incidental impact on contractual obligations are nevertheless valid if they are a legitimate exercise of the police power. See, e.g., Zeuger Milk Co. v. School District of Pittsburgh, 334 Pa. 277, 5 A.2d 885 (1939). We hold that the 1937 Act constitutes such a valid exercise of the police power. In other contexts, the legislature has enacted statutes restricting the freedom to limit liability contractually with a view toward protecting those in unequal bargaining positions and safeguarding the public generally against dangerous and unfit instrumentalities. See, e.g., section 2-316 of the Uniform Commercial Code (UCC), 13 Pa.C.S. § 2316 (disclaimer of implied warranties must be conspicuous); and section 2-719(c) of the UCC, 13 Pa.C.S. § 2719(c) (contractual exclusion of seller’s liability for consequential damages for injury to the person is prima facie unconscionable in the case of consumer goods). We therefore conclude that the 1937 Act’s limitations on Republic’s ability to absolve itself of liability for damage caused by its mining activities are in furtherance of a legitimate and important public policy goal and are constitutionally reasonable.

The order sustaining Republic’s preliminary objections is reversed, and the case is remanded for further proceedings consistent with this opinion. Jurisdiction is relinquished.

McEWEN, J., files concurring and dissenting opinion.

McEWEN, Judge,

concurring and dissenting:

I agree with the excellent analysis as well as the conclusion reached by the learned author of the majority opinion that the Bituminous Mine Subsidence and Land Conservation Act of 1966, Act of April 27, 1966, P.L. 31, § 1 et seq., as amended, 52 P.S. § 1406.10, imposed a duty upon Republic Steel to provide appellants with notice of their intent to recommence mining operations at least six months prior to commencing operations beneath appellants’ property. See 25 Pa.Code § 89.144. I also join in that portion of the majority opinion which concludes that appellants’ complaint stated a cause of action under the Act of July 2, 1937, P.L. 2787, § 1, 52 P.S. § 1407.

I am unable, however, due to the procedural posture of this case, to join in that portion of the majority opinion which deals with the constitutionality of either the 1937 Act or the 1966 Act.

The procedure of preliminary objections is not, however, the proper method of issuing a constitutional challenge, see Stein v. Richardson, 302 Pa.Super. 124, 139-141, 448 A.2d 558, 566 (1982), since the use of preliminary objections is restricted by Pa.R.C.P. 1017 to the following quite specific applications:

RULE 1017. Pleadings Allowed
(a) ....
(b) Preliminary objections are available to any party and are limited to
(1) a petition raising a question of jurisdiction or venue or attacking the form or service of a writ of summons;
(2) a motion to strike off a pleading because of lack of conformity to law or rule of court or because of scandalous or impertinent matter;
(3) a motion for a more specific pleading;
(4) a demurrer, which may include the bar of a nonwaivable statute of limitations or frauds which bars or destroys the right of action and the applicability of which appears on the face of the complaint or counterclaim; and
(5) a petition raising the defense of lack of capacity to sue, pendency of a prior action, nonjoinder of a necessary party or misjoinder of a cause of action.

Rather, the challenge of appellees to the constitutionality of the 1937 and 1966 Acts was required to be raised in New Matter, pursuant to Pa.R.C.P. 1030 and 1045(b). See Barber v. Lynch, 275 Pa.Super. 333, 335-339, 418 A.2d 749, 750-751 (1980).

It also seems that even had appellees pleaded the constitutional issues as New Matter, those issues should not now be the subject of our review since it is well settled that constitutional issues should not be decided unless absolutely necessary to the resolution of the issue before the court. Krenzelak v. Krenzelak, 503 Pa. 373, 381, 469 A.2d 987, 991 (1983). Since the issue we are called upon to decide is the propriety of the summary judgment and we are of one mind that the entry of the summary judgment must be reversed, the issue before us has been resolved. As a result, we need not here address the constitutionality of the challenged acts and I would refrain from so doing.

      . The trial court dismissed the preliminary objections of the Schwartzes and Lawyers Abstract Company, and these defendants are not involved in the instant appeal.

      . Since this case is at the preliminary objections stage, we must take as true the well-pleaded allegation of appellants’ complaint that mining operations were commenced and/or recommenced on or about October of 1980 to April of 1981. Independent Association of Pennsylvania Liquor Control Board Employees v. Commonwealth, 35 Pa. Commw. 133, 384 A.2d 1367 (1978). In view of the fact that appellants do not dispute that Republic had engaged in mining at the same location in 1967, and that paragraph 6 of appellant’s complaint alleges that “[a]t the time of the man plaintiff’s purchase of the above-described property, no deep bituminous coal mining operations were taking place taking place beneath the surface of said property,” we will read appellants’ complaint as alleging a recommencement.

      . The concurring and dissenting opinion suggests that we should not reach the merits of the constitutional issues because they are not a proper subject for preliminary objections under Pa.R.C.P. 1017, and should instead be pleaded as new matter. However, neither of the authorities cited for this proposition, Stein v. Richardson, 302 Pa.Super. 124, 448 A.2d 558 (1982), and Barber v. Lynch, 275 Pa.Super. 333, 418 A.2d 749 (1980), involve constitutional issues. Stein involved a waivable statute of limitations and Barber an immunity issue. It is not clear that their holdings can be extended to constitutional challenges.
      Moreover, even if a technical foul has occurred, it is appropriate for us to reach the merits because appellants did not object below or in this court to the manner in which the constitutional issues were raised. Freach v. Commonwealth, 471 Pa. 558, 370 A.2d 1163 (1977); McElwee v. Department of Transportation, 30 Pa.Commw. 320, 373 A.2d 1163 (1977). We note that the passage from our supreme court’s opinion in Freach in which this very principle was stated is quoted in Barber.

      . Republic has not pursued at the appellate level its claim, raised in preliminary objections, that the 1937 Act violates the provisions of the Pennsylvania Constitution prohibiting the enactment of local or special legislation (the 1937 Act applies only to counties of the second class). This claim is without merit. See Dufour v. Maize, 358 Pa. 309, 56 A.2d 675 (1948); Tranter v. Allegheny County Authority, 316 Pa. 65, 173 A. 289 (1934).


author:
TAMILIA, Judge:
      BECK, Judge,

text:
    492 A.2d 420
    COMMONWEALTH of Pennsylvania, Appellant v. John MADDEN.
    Superior Court of Pennsylvania.
    Argued Nov. 14, 1984.
    Filed April 26, 1985.

      Ann A. Osborne, Assistant District Attorney, Radnor, for Com., appellant.
    Paul G. Hughes, Broomall, for appellee.
    Before CAVANAUGH, BECK and TAMILIA, JJ.
   TAMILIA, Judge:

This appeal was taken from the Order of the trial court in a criminal proceeding wherein the trial court granted a hearing on the appellee’s petition for “decertification” of his offenses which had been certified to the criminal court after a juvenile certification proceeding pursuant to section 6355 of the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq.

This case originated when juvenile petitions were filed charging the defendant, sixteen years of age, in each of four separate petitions, with possession of controlled substance in violation of 35 P.S. 780-113(a)(16) and possession with intent to deliver a controlled substance in violation of 35 P.S. 780-113(a)(30). A possession or use would bring a sentence of one year imprisonment and a fine of $5,000. The penalty under section 113(a)(30) is a felony and would bring a penalty of five years imprisonment and a fine of $15,000. The Commonwealth, at the certification hearing, established a prima facie case on each of the counts which were certified to the criminal court. The first involved an offense that occurred on February 1, 1983 at approximately 3:00 p.m.; a transfer occurred of 50 doses of LSD to undercover detectives by the defendant and a companion for the price of $135. Prior to the next transaction, the undercover detective was in touch with the defendant who informed him that he could procure drugs such as quaaludes and seconal and up to 10,000 doses of LSD. On February 18, 1983, at 3:00 p.m., contact was made with the defendant and together they drove in the undercover agent’s car to an area near Holy Cross College where a transfer of 100 doses of LSD was made to the agent for an amount of $200. During the course of that transaction, discussion concerning other possible transfers was had during which the defendant asked if the agent would move large quantities of cocaine and during which the defendant confirmed that he could procure large doses of LSD. On the same day, at a later time, they drove to another man’s house where the defendant entered and returned to the vehicle providing the agent with 160 doses of LSD for $300 in currency. A second agent testified that on May 25, 1983, at about 3:35 p.m., he met the defendant behind the Delaware County Hospital at the Upper Darby High School. The transfer from the defendant to the agent involved about one ounce of hashish for the price of $85. The agents testified that in their opinion, the defendant was involved in a sophisticated drug operation.

Also, at the certification hearing testimony was presented by a supervisor of the Delaware County Juvenile Court Probation department. It was her testimony, after reviewing the records relating to the defendant without interviewing him, that in relation to the serious nature of the crimes and her appraisal of the need for long-term custodial treatment, there were no available juvenile facilities that could adequately handle the defendant’s treatment. She also testified there was nothing to indicate he required treatment in a mental health facility. Her judgment was that he was not amenable to the facilities of the juvenile justice system based on the nature of the offenses which are considered to be extremely dangerous. The reason given for this opinion was that the juvenile facilities provided treatment for periods between six and nine months and that because of the serious nature of these offenses, the defendant required a much longer term of custodial treatment. Her testimony, on cross-examination, was that community treatment or probation were not suitable alternatives. The defendant had no prior juvenile record and except to the extent of the workup and study that was done in the detention home, there was no written report; the only social record supplied to the court being the supervisor’s report. One reason given for not doing a study prior to the certification hearing was the need to obtain the approvals of the child, his attorney and the administration, which had not been obtained. In response to the appellee’s attorney’s question, the probation administrator acknowledged that no study had been done specifically dealing with John Madden to determine whether he was amenable to rehabilitation in the juvenile court system.

Pursuant to Commonwealth v. Stokes, 279 Pa.Super. 361, 421 A.2d 240 (1980) the certification court was required to make a statement of his reasons for certification; this statement being sufficient to demonstrate that the question of certification has received careful consideration in the juvenile court. This is pursuant to 42 Pa.C.S.A. § 6355, supra. In this regard, the court made a statement in which he acknowledged being governed by the provisions of the Juvenile Act and in consideration thereof, he made findings concerning the age of the juvenile and that notice had been given that the acts alleged would be considered a felony if committed by an adult and that there were reasonable grounds to believe that the child was not amenable to treatment, supervision or rehabilitation as a juvenile through available facilities, based on the supervisor’s testimony. He made a further finding that the child was not committable to a mental facility. Certification to the criminal court was made upon the recommendation of the district attorney, based on the facts presented by the investigative officers on the four separate petitions, on each of which was established a prima facie case. The investigating officers also believed that the juvenile was not amenable to juvenile court services.

On the basis of those findings, certification was ordered and the case was subsequently scheduled for trial in the criminal court. Prior to trial, the appellee submitted a petition to the criminal court entitled “Petition for Decertification.” In that petition, it was alleged that no basis for certification had been made out at the certification hearing in the juvenile court and that the criterion required to be followed under section 6385 of the Juvenile Act had not been complied with. The Honorable R. Barclay Surrick, Judge of the Criminal Court, permitted a hearing on the petition and upon testimony presented by an expert witness, a psychologist, he granted the petition for decertification, holding that the child was amenable to juvenile court treatment; he remanded the case to the juvenile court.

The Commonwealth appealed from the finding and Order of court remanding the case to the juvenile court alleging that the hearing was improper and that the criminal court judge had no jurisdiction to entertain a petition for decertification as the matter was interlocutory. It was the District Attorney’s position that the criminal proceeding must be completed before any action could be taken on certification and only appellate review was in order at that time.

The Juvenile Act, § 6355, Transfer to Criminal Proceedings, provides as follows:

(a) General Rule. — After a petition has been filed alleging delinquency based on conduct which is designated a crime or public offense under the laws, including local ordinances, of this Commonwealth, the court before hearing the petition on its merits may rule that this chapter is not applicable and that the offense should be prosecuted, and transfer the offense, where appropriate, to the division or a judge of the court assigned to conduct criminal proceedings, for prosecution of the offense if all of the following exist:
(b) Chapter inapplicable following transfer. — The transfer terminates the applicability of this chapter over the child with respect to the delinquent acts alleged in the petition.
(f) Transfer action interlocutory. — The decision of the court to transfer or not to transfer the case shall be interlocutory.

The interpretation of the transfer sections of the .Juvenile Act have been frequently passed upon by the Pennsylvania Supreme Court and our Superior Court and there is no question about their meaning. This matter was considered by the full court in Commonwealth v. Pitt, 254 Pa.Super. 159, 385 A.2d 574 (1978). The definitive statement in that case is that once a case involving a juvenile is certified, ■ le criminal court case cannot be transferred back to the juvenile court. Thus an Order remanding a case to the juvenile court was without legal efficacy and if the criminal court would subsequently remand the case to the juvenile court, that court could merely reinstate its original order and was not required to hold a hearing before doing so. The Pitt court said: “Once the matter was certified to criminal court the case could not be transferred back to juvenile court.” Id., 454 Pa.Superior Ct. at 162, 385 A.2d at 575.

The issue of appellant’s non-amenability to treatment within the juvenile court system had been determined at the certification hearing. That determination is final and should not be relitigated in another co-equal court. Thus for two reasons a judge of the criminal court improperly considered the petition for decertification. First, in compliance with Pitt, the issue of certification was not reviewable by the criminal court whether it alleged there was a failure to comply with due process in the juvenile proceeding or that there was new evidence. There simply is no basis in law for entertaining a petition for decertification. Secondly, by a specific provision of the Juvenile Act, § 6355(f), the certification was interlocutory and the rule is that one judge may not pass upon a decision of another judge on an interlocutory matter. See Commonwealth v. Ryan, 306 Pa.Super. 159, 452 A.2d 264 (1982); Commonwealth v. Brown, 485 Pa. 368, 402 A.2d 1007 (1979); Commonwealth v. Monarch, 330 Pa.Super. 165, 479 A.2d 491 (1984); Commonwealth v. Griffin, 257 Pa.Super. 153, 390 A.2d 758 (1978). Under the state of the law, as espoused in these cases, and pursuant to the statute, the judge of the criminal court has improperly constituted himself an appellate court and he has done more than ruling differently on alleged new facts. He has, in effect, directed the judge of another branch of the court to proceed with a trial on matters of which he has divested himself. No change of facts or additional facts under these circumstances can alter the result required by the decertification Order. Pursuant to Pitt, supra, the juvenile court judge is required to do nothing but reinstate his order. Under these circumstances, the procedure is deadlocked, and no trial will occur unless there is intervention by the appellate courts. This is precisely the situation which the prohibition against a coequal judge, rescinding the order of a colleague, is designed to prevent. The appellee relies heavily on Brown, supra as holding that a remand of a certification petition can result from a presentation and finding concerning new evidence. In that case, the court below failed to reach the merits of the appellant’s claim for decertification, holding that it had no authority to review a decision of a judge from another division of the same court of common pleas. Since that was the Order which was passed upon by the Supreme Court, that Order being affirmed, we can only consider the statement at the end of the Opinion, “as appellant has never sought to introduce new evidence, the Order denying the motion to quash the transfer must be affirmed”, to be dicta and not controlling. Griffin and Monarch, supra held, that which has been consistently the rule, that an interlocutory order is not reviewable in the court below nor is it appealable unless there is new and different evidence that would prove the Commonwealth’s evidence to be tainted. In the case sub judice, the new evidence relied upon was the testimony of a psychologist who alleged that the defendant could be helped in the community by psychological counsel-ling in a regional MH/MR drug counselling program. This is not the quality of new evidence that would have a bearing on the reason for certification since the juvenile judge determined that community programs of probation of whatever nature were inappropriate for crimes of the severity of the ones in which the defendant was involved and that long-term institutional treatment was required. Such evidence is a difference of opinion but it does not qualify as new evidence sufficient to change the findings of the juvenile judge. A careful review of most of the cases involving juvenile certification in Pennsylvania produced only one in which the remand was permitted prior to the completion of the criminal trial resulting from certification. In that case, In the Interest of George S., 286 Pa.Super. 217, 428 A.2d 650 (1981), this Court passed upon the issue of whether or not the certification to the criminal court before a juvenile case was heard on the merits would constitute double jeopardy. Appellant had relied heavily upon the case of Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975). The Superior Court held that Breed did not apply to that case and that it was not a double jeopardy question. However, it went beyond the necessity of deciding that issue. The case had come before the Superior Court on appeal from a remand to the juvenile court by the criminal court of the Delaware County Court, similar to the procedure presented here. There, the district attorney was defending against a charge of double jeopardy by the appellant, who alleged that to transfer the case back to the juvenile court constituted double jeopardy. The Superior Court held this was not double jeopardy and affirmed the court below permitting the case to be heard as a juvenile case. That case will not be followed here as it did not deal with the issue now before this Court and if the Court at that time had applied all of the law as to certification, it is unlikely that it would have permitted a remand order to stand.

In George S., supra, following the case law and the statute with respect to the remand to the juvenile court from the criminal court, a proper resolution would have been to have the case remain as certified to the criminal court and to consider as interlocutory the matters as to certification and remand, not reviewable until after completion of the criminal proceeding. In Commonwealth v. Harrod, 260 Pa.Super. 312, 394 A.2d 567 (1978), after defendant was convicted before the trial division of Philadelphia County Court, Criminal Section, of robbery, criminal conspiracy and possession of an instrument of crime, an appeal was taken and this Court held that upon review of the certification proceedings, there were insufficient findings upon which the Superior Court could make a meaningful review. Without disturbing the conviction, the case was remanded for another and more complete certification hearing in juvenile court.

In Commonwealth v. Lux, 299 Pa.Super. 136, 445 A.2d 185 (1982), following a conviction for robbery, theft and conspiracy in the criminal court of Delaware County, the Superior Court, in its review of the certification proceeding on appeal, found that the proceeding, in many respects very similar to that of the present case, was inadequate in relation to the evidence as to amenability. They held that the judgment of sentence would be vacated and that there would be a remand for a new certification hearing whereupon, if certification again occurred, the judgment of sentence would be reinstated and, if necessary, a new appeal would lie.

In Commonwealth v. Bey, 249 Pa.Super. 185, 375 A.2d 1304 (1977), the defendant was convicted of rape and involuntary deviate sexual intercourse in the criminal court after being certified as a juvenile. On appeal, this Court held that because there was insufficient specification of the reasons for certification to comply with the statutory mandate of section 28 of the act of December 6,1972, P.L. 1464 No. 333, the forerunner of section 6355, a return to the juvenile court was required for a new certification hearing with the evidence to be limited solely to that introduced at the initial certification hearing. If it was then determined that certification was improper, the indictments were to be dismissed and appellant returned to the juvenile court. If it was determined that certification was proper, then the appellant’s sentence would be affirmed.

In Commonwealth v. Deppeller, 314 Pa.Super. 368, 460 A.2d 1184 (1983), after certification to the criminal court in Monroe County, a sentence of two and one-half to five years imprisonment followed a plea of guilty to robbery. On appeal this Court held that where a juvenile judge did not provide any reasons for the transfer order certifying the juvenile to the adult court, the Superior Court was unable to afford a meaningful review of the juvenile proceedings. Again, this Court remanded for a further certification hearing limited to the evidence introduced at the initial certification hearing. If again the appellant was certified to the criminal court, judgment of sentence was to be reinstated, if not certified to the criminal court, the case would remain to be tried as a juvenile matter.

In Stokes, supra, a criminal trial, appellant was convicted of indecent exposure and rape. After denial of post-trial motions, an appeal was taken and the appropriateness of the certification proceeding in the juvenile court was considered by this Court. On review of that proceeding, the case was remanded to the juvenile section of the family court division of the common pleas court for another and more complete certification hearing. By this disposition of the Superior Court, appellant’s conviction was not disturbed, with appellant given the right to file another direct appeal from the new certification hearing if he so wished.

In Commonwealth v. Greiner, 479 Pa. 364, 388 A.2d 698 (1978), the appellant was convicted of criminal conspiracy, attempted murder, attempted kidnapping and aggravated assault; he appealed the judgment of sentence of the Court of Common Pleas of Lancaster County. There our Supreme Court held that the Commonwealth, which must bear the burden of establishing that the provisions of the Juvenile Act were inadequate for the treatment of the juvenile, failed to meet its burden for certification to the criminal court, where the record showed positive amenability of the juvenile to the resources of the juvenile court. In Greiner, the Supreme Court was able to determine on the record the failure of the Commonwealth to meet its burden and the appropriateness of the juvenile court dispositional alternatives, and therefore vacated judgment of the criminal court and remanded to the juvenile court for further proceedings therein. It is necessary to emphasize that all of the evidence in the juvenile procedure pointed to the child’s stable home life, the better rehabilitative processes of the juvenile court for his purposes, that he was an above-average student, presented no discipline problem, and other than the severity of the offense, there was no basis for the transfer to the criminal court.

From a review of these cases, we can draw only one conclusion, that is, that a certification hearing in the juvenile court is an interlocutory proceeding and not reviewable by the criminal court judge and that there is no basis for remand or “decertification” of a juvenile case once it is certified to the criminal court. That is not to say there is no legal remedy for an appellant who appears to have been wronged by the certification. This remedy, however, comes at the end of all the proceedings which is in keeping with the doctrines of finality and judicial economy. Only when the case has run its course through the criminal court may we consider the appropriateness of certification. As can be seen by the cases cited, the remedy is an adequate one and has provided a fair and just result in those cases which warranted a remand, providing an opportunity for the juvenile court to clarify its certification statement without undoing the judgment of sentence or where required, permitting the juvenile court to proceed with an adjudication under the Juvenile Act if certification could not be made out. Since at least two of the cases which we have reviewed involve what appears to be the confused procedure in the Delaware County Court, that is Lux and George S., supra, it appears desirable at this time to set firmly the procedure and policy which should be followed by both the juvenile and the criminal court in conformance with the majority of the decisions cited. If we were to permit the decertification, it would appear contrary to the law and the practice established by a long line of cases. If we were to order an additional certification hearing, we would set a precedent which would result in appeals from certification findings contrary to the legislative determination that they are interlocutory. It would be tempting to review the certification findings themselves at this point for the sake of judicial economy if nothing else, but it is believed this would be an encouragement to a procedure, that as illustrated here, causes confusion and delay.

We would, therefore, remand this case to the criminal court of Delaware County and quash the decertification order and direct that this case proceed to trial as a criminal case with a review as to the sufficiency of certification findings to follow in due course upon completion of the proceedings in the criminal court and such post-trial motions attendant thereto.

Order of decertification quashed and criminal information is reinstated.

Jurisdiction is relinquished.

Dissenting opinion by Beck, J.

BECK, Judge,

dissenting:

I respectfully dissent and would quash the Commonwealth’s appeal. Although improper procedure was arguably employed below by both parties, the majority in its zeal for procedural correctness ignores a fundamental rule of procedure for this court. That is, this court accepts appeals ■ only from final orders of the lower court. 42 Pa.C.S. § 742. The decertification order, whether or not it was proper below, is an interlocutory order and, hence, unappealable at this time. Conspicuously, the majority does not even mention this threshold issue in its opinion. In sharing the majority’s concern for proper procedure, then, I must dissent and would quash this appeal as unripe for review.

      . In her Dissenting Opinion, Judge Beck alleges the majority Opinion ignored the threshold question of the interlocutory nature of the lower court’s order of decertification. To the contrary, since we have determined that the decertification proceeding and order, according to governing legal principles, are nullities, (Pitt, supra at page 575) treating that order as interlocutory and not appealable would result in the case floating in limbo between the juvenile and criminal court. Neither court would have an appealable order and neither judge would be required to hear the case. That jurisdictional morass may only be resolved as detailed by the majority Opinion.