text:
    445 A.2d 1273
    David SAMUELS T/A Middle Bucks Landscaping, Appellant, v. Edward N. HENDRICKS and Sarah B. Hendricks, Husband and Wife.
    Superior Court of Pennsylvania.
    Submitted Nov. 16, 1981.
    Filed May 21, 1982.

      John M. McClure, Doylestown, for appellant.
    Robert F. Ruehl, Doylestown, for appellees.
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in: (1) dismissing his complaint as to appellee Sarah B. Hendricks; and (2) transferring from equity to law the action as to appellee Edward N. Hendricks. For the following reasons, we affirm the dismissal as to Mrs. Hendricks and quash the appeal as to Mr. Hendricks.

In October, 1978, appellant contracted to perform extensive landscaping and driveway repair work upon Mr. Hendricks’s Bucks County residence. Sometime after completing the work in October, 1979, appellant and Mr. Hendricks compromised appellant’s claim for materials and labor. Mr. Hendricks subsequently married and conveyed the property to himself and Mrs. Hendricks as tenants by the entireties. In October, 1980, appellant commenced this action in equity to recover the unpaid balance of $6,700, and to enjoin appellees’ purported fraudulent conveyance. Appellees’ preliminary objections asserted that appellant had an adequate remedy at law. See Pa.R.Civ.P. 1509(c). Additionally, Mrs. Hendricks demurred to the complaint by alleging that it failed to state a cause of action. The lower court sustained the preliminary objections, dismissing the complaint as to Mrs. Hendricks, and transferring the action against Mr. Hendricks to the law side of the court. This appeal followed.

Appellant contends initially that the lower court erred in entertaining Mrs. Hendricks’s demurrer because she had failed to specify any defect in the complaint. In filing a preliminary objection in the nature of a demurrer, Pa.R.Civ.P. 1017(b)(4), a party must “specifically state the grounds relied upon,” Pa.R.Civ.P. 1028(a). A demurrer generally averring that the “ ‘complaint fails to state a cause of action . . . ’ ... must be dismissed [because] [i]ts generality violates [r]ule 1028(a).” Brennan v. Smith, 6 Pa. Commonwealth Ct. 342, 344, 299 A.2d 683, 684-85 (1972). While we agree with appellant that the demurrer was not specific, “we nevertheless conclude that the lower court properly entertained the preliminary objection because appellant waived the procedural defect by failing to file a preliminary objection to appellee’s preliminary objection.” National Recovery Systems v. Frebraro, 287 Pa. Superior Ct. 442, 444, 430 A.2d 686, 687 (1981) (preliminary objection raising illegality). See also Duquesne Slag Products Co. v. Lench, 490 Pa. 102, 104, 415 A.2d 53, 54 (1980) (res judicata); Freach v. Commonwealth, 471 Pa. 558, 564-65 n.6, 370 A.2d 1163, 1166 n.6 (1977) (immunity from suit); Rufo v. Bastian Blessing Co., 417 Pa. 107, 114, 207 A.2d 823, 826 (1965) (statute of limitations). Noncompliance with rule 1028(a) is a defect which must be raised by a preliminary objection in the nature of a motion to strike under rule 1017(b)(2) or in the nature of a motion for more specific pleading under rule 1017(b)(3). See 2 Goodrich-Amram 2d § 1017(b):5 (1976). See, e.g., Kline v. Johnson, 70 Pa.D. & C.2d 386, 388 (C.P. Northumberland County 1975); Casner v. Norwalk Truck Lines, Inc., 42 Pa.D. & C.2d 666, 667 (C.P. Mifflin County 1966). Appellant’s failure so to do waived the procedural defect. Pa.R.Civ.P. 1032 (“[a] party waives all defenses and objections which he does not present by ... preliminary objection”); Kline v. Johnson, supra at 389. Cf. Lang v. City of Philadelphia, 31 Pa. Commonwealth Ct. 537, 538, 377 A.2d 849, 850 (1977) (failure to raise in lower court demurrer’s nonconformity with rule 1028 constituted waiver). Here, as in Kline v. Johnson, appellees’ supporting brief (which is included in the record) amplified the basis of the boiler plate demurrer. Consequently, in light of appellant’s waiver, the lower court properly addressed the merits of the demurrer.

Appellant contends that the lower court erred in sustaining the demurrer because his complaint “requests relief [from Mrs. Hendricks] on a quasi-contractual theory for unjust enrichment.” Brief for Appellant at 11. “In order to recover, there must be both (1) an enrichment, and (2) an injustice resulting if recovery for the enrichment is denied.” Meehan v. Cheltenham Township, 410 Pa. 446, 449, 189 A.2d 593, 595 (1963) (emphasis added and citations omitted).

[T]he mere fact that one party benefits from the act of another is not of itself sufficient to justify restitution. There must also be an injustice in permitting the benefit to be retained without compensation.
The Restatement of Restitution sets forth various rules for the determination of whether the retention of a particular enrichment is unjust. Section 110 deals with a situation where a third party benefits from a contract entered into between two other parties. It provides that, in the absence of some misleading by the third party, the mere failure of performance by one of the contracting parties does not give rise to a right of restitution against the third party. The Restatement gives as an example of this principle the situation where A purchases a ring from C, a jeweler, for his fiance B and then defaults in the payments. The Restatement states that C cannot recover the ring or its value from B.

Id., 410 Pa. at 450-51, 189 A.2d at 596 (footnote omitted). In Meehan, a subcontractor agreed with a developer to pave streets and install sewers. After the subcontractor undertook performance, the developer became insolvent. The streets were subsequently conveyed to the municipality and the work was completed by another subcontractor. The subcontractor then sued the municipality alleging that it had been unjustly enriched. Relying upon the Restatement analysis, our Supreme Court rejected that claim:

In contracting to perform the services in question, appellant relied solely on the financial credit of [the developer]. Appellee in no way induced appellant to enter into this relationship. In such a situation, appellant cannot shift the loss resulting from its error in judgment to one who may have been indirectly benefitted by the performance of these services.

Id., 410 Pa. at 451, 189 A.2d at 596 (footnote omitted). Accord, Kemp v. Majestic Amusement Co., 427 Pa. 429, 431-33, 234 A.2d 846, 847-848 (1967) (air conditioning contractor could not recover from lessor when contract had been made solely upon tenant’s credit and lessor did not mislead contractor and did not learn of work until after completion). Assuming, arguendo, that Mrs. Hendricks was enriched by appellant’s performance of the repairs and landscaping, appellant’s complaint fails to allege why it would be unjust for her to retain the indirect benefit conferred upon her. The complaint alleges an express contract with Mr. Hendricks. The complaint is utterly devoid of any allegation that appellant was misled by Mrs. Hendricks, or for that matter, that he even knew of her when he undertook performance. There is no allegation that she knew of appellant’s work or in any way induced his performance. In light of these glaring deficiencies, the mere fact that Mrs. Hendricks may have indirectly benefitted from appellant’s performance is not sufficient to impose upon her a duty to make restitution. See Roman Mosiac & Tile Co. v. Vollrath, 226 Pa. Superior Ct. 215, 217, 313 A.2d 305, 307 (1974). Accordingly, the lower court did not err in dismissing appellant’s complaint against her.

Appellant contends finally that because his remedy at law is inadequate, the lower court erred in transferring his action against Mr. Hendricks from equity to law. We cannot reach the merits of this contention, however, because the appeal as to Mr. Hendricks is premature. Orders transferring actions from equity to law are generally interlocutory and not appealable. See, e.g., R. M. Shoemaker Co. v. Blumenfeld, 443 Pa. 566, 278 A.2d 488 (1971) (per curiam); Ridge Radio Corp. v. Glosser, 417 Pa. 450, 451, 208 A.2d 839, 840 (1965); McFarland v. Weiland Packing Co., 416 Pa. 277, 279, 206 A.2d 18, 19 (1965); White v. Young, 402 Pa. 61, 62, 166 A.2d 663 (1960); Nachod v. Nachod, 402 Pa. 60, 61, 166 A.2d 18 (1960); 5 Goodrich-Amram 2d § 1509(c):2 (1976).

There can be no doubt that this Court has held unappealable an order certifying a case from equity to law.... However, this rule flows not from the mere fact that a case has been certified from one court to another, but from the fact that the appealing party might eventually be made whole, i.e., that a court of law may award sufficient money damages to substitute for the equitable relief held unavailable.

Goldman v. McShain, 432 Pa. 61, 64, 247 A.2d 455, 456 (1968). Accord, Kramer v. Kramer, 260 Pa. Superior Ct. 332, 338, 394 A.2d 577, 581 (1978); Long John Silver’s, Inc. v. Fiore, 255 Pa. Superior Ct. 183, 195-96, 386 A.2d 569, 575 (1978). Consequently, in determining the appealability of an order transferring a case from equity to law, we must ascertain whether the practical effect of the order is to put the party “out of court.” Goldman v. McShain, supra, 432 Pa. at 65, 247 A.2d at 457; McCahill v. Roberts, 421 Pa. 233, 236, 219 A.2d 306, 308 (1966). In Goldman, the plaintiffs sought specific performance of a contract to build and operate a theater. The lower court held that they had not alleged an enforceable contract, thereby precluding equitable relief or damages at law. Instead of entering judgment on the pleadings for the defendants, the lower court certified the case to the law side of the court to enable plaintiffs to proceed under a theory of restitution to recover their expenses incurred in contemplation of the project. In denying the motion to quash the appeal, our Supreme Court reasoned that the order was final because its practical effect was to deny recovery upon the contract. 432 Pa. at 64—65, 247 A.2d at 456-457. Similarly, in McCahill, the Court held that a transfer order was final because its effect was to deny plaintiffs’ action to quiet title to a building. 421 Pa. at 236, 219 A.2d at 308. By contrast, in the present case, the lower court, in the exercise of its discretion, Long John Silver’s, Inc. v. Fiore, supra, determined that appellant could be adequately compensated by an award of damages for the breach of his contract with Mr. Hendricks. Consequently, because the practical effect of the order is not to preclude appellant from presenting the merits of his claim, it is not final and appealable. Toll v. Toll, 293 Pa. Superior Ct. 549, 555, 439 A.2d 712, 715 (1981). Appellant has not sought to avoid the conveyance establishing the tenancy by the entire-ties, nor has he alleged that appellees have agreed to convey the premises. Accordingly, the lower court’s determination that this case did not warrant equitable relief under section 10 of the Uniform Fraudulent Conveyance Act, Act of May 21, 1921, P.L. 1045, No. 379, 39 P.S. § 360, must await final disposition in the court below. See generally Meehan v. Cheltenham Township, supra 410 Pa. at 448-49, 189 A.2d at 595; King v. Clark, 183 Pa. Superior Ct. 190, 193-94, 130 A.2d 245, 247 (1957). The mere fact that the order was final and appealable vis-a-vis Mrs. Hendricks does not confer jurisdiction to review an issue arising from appellant’s claim against Mr. Hendricks. See Love v. Temple University, 422 Pa. 30, 33, 220 A.2d 838, 840 (1966). To be appealable, an adjudication must be final as to all parties and as to the whole of the subject matter. Commonwealth v. Mellon National Bank & Trust Co., 360 Pa. 103, 109, 61 A.2d 430, 433 (1948); Schaefer v. American States Insurance Co., 272 Pa. Superior Ct. 67, 68, 414 A.2d 672, 673 (1979). For example, in Gibson v. Miller, 265 Pa. Superior Ct. 597, 601, 402 A.2d 1033, 1036 (1979), we quashed a wife’s appeal when she had not filed her own exceptions, but, instead, had “tried to appeal on the coattails of her husband’s exceptions.” Moreover, rule 1701(c) of the Pennsylvania Rules of Appellate Procedure recognizes that a pending appeal will not affect “ ‘separate disputes between other parties or involving separate subject matter.’ ” Litt v. Rolling Hill Hospital, 293 Pa. Superior Ct. 97, 100 n.2, 437 A.2d 1008, 1010 n.2 (1981) (citation omitted). Consequently, insofar as appellant challenges the lower court’s order transferring his case against Mr. Hendricks from equity to law, we quash his appeal. Of course, our determination on that matter is without prejudice to appellant’s right to renew his challenge in a proper appeal. Adcox v. Pennsylvania Manufacturers’ Association Casualty Insurance Co., 419 Pa. 170, 175-76, 213 A.2d 366, 368 (1965).

For the foregoing reasons, the order as to appellee Sarah B. Hendricks is affirmed, and, as to appellee Edward N. Hendricks, the appeal is quashed and the matter remanded for further proceedings.

So ordered.

      . In particular, appellant alleged that appellees had listed the premises for sale in an effort to avoid paying him and that they would remove the proceeds of the sale from the jurisdiction. He therefore sought to enjoin their future conveyance of the premises.

      . An order dismissing a complaint against one of several defendants is final and appealable. Allessandro v. State Farm Mutual Automobile Insurance Co., 487 Pa. 274, 279, 409 A.2d 347, 349 (1979); Love v. Temple University, 422 Pa. 30, 33, 220 A.2d 838, 840 (1966).

      . Appellant has waived any other basis for sustaining his claim against Mrs. Hendricks by failing so to argue in his brief to this Court. Commonwealth v. Jackson, 494 Pa. 457, 459 n.1, 431 A.2d 944, 945 n.1 (1981); Commonwealth v. Burton, 292 Pa. Superior Ct. 73, 76 n.1, 436 A.2d 1010, 1012 n.1 (1981). Accordingly, we express no view as to whether any other theory would justify recovery from her.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    445 A.2d 1277
    COMMONWEALTH of Pennsylvania, v. Arthur J. METZLER, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1981.
    Filed May 21, 1982.
    Petition for Allowance of Appeal Granted Nov. 4, 1982.

      Gary Neil Asteak, Easton, for appellant.
    James J. Narlesky, Assistant District Attorney, Easton, for Commonwealth, appellee.
    Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the evidence was insufficient to establish his sanity beyond a reasonable doubt. We agree and, accordingly, reverse the judgment of sentence and order appellant discharged.

On April 10, 1980, the victim and her son were eating at an Easton, Pennsylvania restaurant when appellant approached them. He stared at her from the doorway for approximately one minute, moved closer to the table, and then suddenly ran out the door. Seconds later, he rushed back into the restaurant, shoved the waitress out of the way, and threw an empty table across the room. He then leaned over the victim and inquired, “Do you have anything else you want to say to me?” The victim replied, “I never said anything to you, sir.” Whereupon appellant struck her and left the restaurant.

At a nonjury trial, the Commonwealth introduced the testimony from a waitress, the victim, and her son that appellant had appeared disheveled and acted peculiarly. Detective Carl Beers testified that he believed appellant was suffering from some type, of mental disorder when he interviewed him that evening and requested the victim to sign an emergency commitment complaint to send appellant to Muhlenberg Medical Center Psychiatric Ward. Appellant testified that he had been a frequent patient at several mental hospitals during the past twenty years, and had been treated for delusions with both shock treatments and medication. He testified that on the evening of the assault, he was hungry and tired and had no money or place to stay, and that he confused the victim with a former girlfriend and the “harlot in Revelations 17:4,” and struck her in an attempt “to impress enough fear in her so she would hold back on whatever else would happen in the world because I didn’t have any other power of my own myself.” Appellant’s psychiatrist testified that appellant was suffering from paranoid schizophrenia and gave his professional opinion that appellant “was not able to deliniate the rightness or wrongness of his actions.” The Commonwealth offered no proof of appellant’s sanity. The lower court found appellant guilty of assault, and after the denial of post-trial motions, imposed sentence. This appeal followed.

Appellant contends that the evidence was insufficient to establish his sanity beyond a reasonable doubt. We agree. When a defendant raises the issue of his sanity, the Commonwealth must prove beyond a reasonable doubt that he knew the nature and quality of his act and that he knew it was wrong. Commonwealth v. Demmitt, 456 Pa. 475, 483, 321 A.2d 627, 632 (1974). Appellant’s psychiatrist opined that appellant “was not able to deliniate the rightness or wrongness of his action.” Although psychiatric testimony is not controlling, the Commonwealth must still present some evidence to refute it. See Commonwealth v. Demmitt, supra. In the instant case, however, all the evidence corroborated the psychiatric testimony. The lower court found that appellant had admitted that he knew his actions were bad in the following exchange:

Defense Counsel: At that point in time did you think what you were doing was good or bad, your perception?
Appellant: I knew it was had.
Q. Why did you do it?
A. Aggravated, aggravated into it I’m sorry to say, maybe because of the devil, Satan.
Q. Why would saving the world from abomination be bad if you were going to hurt the harlot?
A. Well, at that particular time I felt that it was good but I knew it was bad, I knew what I was doing but I was confused and as I say exhausted to the point so where after all I had been through through the years, that and then that added onto it, that as I say I was confused.
Q. Was it good or bad or both, could it be both?
A. It could be both.
Q. But do you know?
A. Well, at this particular time I can’t exactly say. All I know is that I was awful confused.

(emphasis added). The court’s reliance on a statement of appellant taken out of context is misplaced. Appellant’s testimony taken as a whole indicates that at the time of the incident he was exhausted, confused, and disoriented. Appellant’s purported admission is at best inconclusive and ambiguous—certainly insufficient to satisfy the Commonwealth’s burden of proof. Accordingly, because the Commonwealth has failed to meet its burden of proving appellant sane beyond a reasonable doubt, we reverse the judgment of sentence and order appellant discharged.

Judgment of sentence reversed and appellant discharged without prejudice to the Commonwealth to petition the lower court for an order directing involuntary treatment under § 406 of the Mental Health Procedures Act, Act of July 9, 1976, P.L. 817, No. 143, § 406, 50 P.S. § 7406.


text:
    445 A.2d 1279
    Christina LEONARD, a minor by Her Mother and Guardian, Sonja Leonard Meyers in Her own right, Appellants, v. ANDERSEN CORPORATION and Paul C. Newcomer and Suzan L. Newcomer.
    Superior Court of Pennsylvania.
    Argued Feb. 23, 1982.
    Filed May 21, 1982.

      Marshall A. Bernstein, Philadelphia, for appellants.
    Michael Hemsley, Philadelphia, for Andersen, appellee.
    Richard A. Kraemer, Philadelphia, for Newcomer, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellants contend that the lower- court erred in changing the venue of this action to the Court of Common Pleas of Bucks County. Because appellants have failed to perfect their appeal, we do not reach the merits of their contention and, instead, dismiss the appeal.

Appellants filed a complaint in trespass and assumpsit, alleging that the minor appellant was severely injured when she fell through a defective window screen manufactured by appellee Andersen Corporation and installed in an apartment leased from the individual appellees. Appellees filed preliminary objections asserting that venue was improperly laid in Philadelphia County. On May 22, 1981, the lower court sustained the preliminary objections and transferred the case to the Bucks County forum. The order was entered and notice provided under Pa.R.Civ.P. 236(b) on June 2, 1981. Appellants then filed a petition for reconsideration, alleging that the lower court’s action was premature because testimony from a May 28, 1981 deposition revealed that the corporate appellee was indeed transacting business in Philadelphia County. On July 8, 1981, thirty-six days after entry of the earlier order, the lower court, after oral argument, granted reconsideration but “reaffirmed” its earlier order transferring the case. That order, the rule 236 notice, and the pertinent notice of appeal were docketed on July 14, 1981.

Timeliness of an appeal is a jurisdictional matter which can be raised by the court su a sponte. See, e.g., Penjerdel Refrigeration Corp. v. R. A. C. S., Inc., 296 Pa.Superior Ct. 62, 64, 442 A.2d 296, 297 (1981); Commonwealth v. Gottshalk, 276 Pa.Superior Ct. 102, 104, 419 A.2d 115, 116 (1980). In general, “the notice of appeal . .. [must] be filed within 30 days after the entry of the order from which the appeal is taken.” Pa.R.A.P. 903(a). “The date of entry of an order in a matter subject to the Pennsylvania Rules of Civil Procedure shall be the day on which the clerk makes the notation in the docket that notice of entry of the order has been given as required by Pa.R.Civ.P. 236(b).” Pa.R.A.P. 108(b). The thirty day appeal period of rule 903 has been strictly construed. See, e.g., Hesson v. Weinrebe, 288 Pa.Superior Ct. 216, 218, 431 A.2d 1015, 1016 (1981). An appellate court “may not enlarge the time for filing a notice of appeal.” Pa.R.A.P. 105(b). The mere filing of a petition for reconsideration does not toll the period in which an appeal may be perfected. See, e.g., Penjerdel Refrigeration Corp. v. R. A. C. S., Inc., supra, 296 Pa.Superior Ct. at 218, 442 A.2d at 297; Scoumiou v. United States Steel Corp., 293 Pa.Superior Ct. 254, 257, 438 A.2d 981, 982-83 (1981). Absent a stay, the lower court must grant the petition for reconsideration within the thirty day appeal period to toll the appeal period. See, e.g., Hesson v. Weinrebe, supra; Fingles v. Green, 269 Pa.Superior Ct. 131, 409 A.2d 99 (1979); Strickler v. United Elevator Co., 257 Pa.Superior Ct. 542, 391 A.2d 614 (1978); Provident National Bank v. Rooklin, 250 Pa.Superior Ct. 194, 378 A.2d 893 (1977); In re Kemmerer, 46 Pa.Commonwealth Ct. 455, 405 A.2d 1108 (1979). If the lower court does not expressly grant reconsideration or enter an appropriate stay within the thirty day appeal period, its “power ... to act on the application for reconsideration ... is lost.” Explanatory Note to Pa.R.A.P. 1701(b)(3). See generally Provident National Bank v. Rooklin, supra, 250 Pa.Super. at 201, 378 A.2d at 896 (Pa.R.A.P. 1701 contemplates concurrent reconsideration and appeal). Failure to follow established procedures for obtaining direct appellate review waives any objection for the purposes of collateral attack. See, e.g., Washington v. Liberi, 273 Pa.Superior Ct. 48, 49, 416 A.2d 1082, 1083 (1979), quoting Strickler v. United Elevator Co., supra, 257 Pa.Super. at 549, 391 A.2d at 618. “To hold otherwise would permit a party to employ dilatory tactics as a strategy.” Provident National Bank v. Rooklin, supra, 250 Pa. Super, at 201, 378 A.2d at 896.

In Scoumiou, we quashed a similar appeal as untimely. The lower court entered an order on May 29, 1980, reactivating a case that had been terminated under a local court rule. On June 6, 1980, the defendant filed a petition for reconsideration and exceptions to that order. In November, 1980, the lower court en banc issued an opinion denying the exceptions and dismissing the petition. Defendant then filed an appeal “within thirty days of the dismissal order .. . but more than six months after the order . . . reactivating] the case.” 293 Pa.Superior Ct. at 256-57, 438 A.2d at 982. We reasoned that the reactivation order was an interlocutory order appealable as of right under Pa.R.A.P. 311(a)(1), that defendant “could have appealed . .. immedi ately upon its entry and within thirty days thereafter,” and that the mere filing of the “petition for reconsideration in no way extended the appeal period.” Id., 293 Pa.Superior Ct. at 256, 438 A.2d at 982 (emphasis in original). Thus, our Court “conclude[d] that the 30-day appeal period began to run from the entry of the former order and had expired when the appeal to this Court was actually filed.” Id., 293 Pa. Superior Ct. at 257, 438 A.2d at 982. In this case, the order of May 22, 1981, transferring the action to Bucks County was an appealable interlocutory order under Pa.R.A.P. 311(c). Failure to obtain timely direct appellate review of such an order precludes any subsequent appellate review of it. Pa.R.A.P. 311(d)(1)(ii). Appellants did not seek a stay of that order nor did they perfect a timely direct appeal. Instead, they filed a petition for reconsideration, which was not granted until after the time for direct appeal had expired. The lower court’s belated reconsideration and concurrent affirmation of the former order was a nullity. Dukmen v. Dukmen, 278 Pa.Superior Ct. 530, 532, 420 A.2d 667, 669 (1980). Consequently, we conclude, as we did in Scoumiou, that the appeal period began to run from the entry of the first appealable order and had already expired when the notice of appeal was filed. Accordingly, this appeal must be dismissed as improper because appellants should have appealed from or obtained a stay of the May 22, 1981 order sustaining the preliminary objections and transferring the action to Bucks County.

Appeal dismissed.

        Conaway v. 20th Century Corp., 491 Pa. 189, 420 A.2d 405 (1980), is distinguishable because the first order was held to be interlocutory and not appealable. Id., 491 Pa. at 196, 420 A.2d at 409. Thus, “the denial of the petition for reconsideration, which effectively sustained the preliminary objections ..., constituted the first final[, appealable] order.” Id., 278 Pa.Superior Ct. at 196, 420 A.2d at 409. Moreover, the Court emphasized that were the appeal dismissed as untimely, plaintiffs would be denied recovery, a blatantly unfair result. However, to dismiss this appeal as untimely does not deny appellants’ claims; rather, it requires that their claim be adjudicated in a different forum.


author: VAN der VOORT, Judge: HESTER, Judge,

text:
    445 A.2d 1282
    Robert J. FERENCAK and Patricia L. Ferencak, His Wife v. Charles R. MOORE and Elizabeth A. Moore. Appeal of Elizabeth A. MOORE.
    Superior Court of Pennsylvania.
    Submitted Jan. 11, 1982.
    Filed May 21, 1982.

      Bonnie P. Schlueter, New Kensington, for appellant.
    Timothy J. Geary, Vandergrift, for appellees.
    Before HESTER, BECK and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

This is an appeal from a custody order involving two minor children: Charles R. Moore, Jr., now five (5) years old and Jerrah Moore, now seven (7) years old. The parties involved are: Robert J. and Patricia L. Ferencak, paternal grandparents of the children, appellees herein; Elizabeth A. Moore, natural mother of the children, appellant herein; Charles R. Moore, Senior, natural father of the children; and Dolores Burkett, maternal grandmother and Leland Burkett, maternal step-grandfather (hereafter referred to as maternal grandparents of the children).

Charles Jr. has been living with his paternal grandparents since June 4, 1979, prior to this time he lived with his parents or his mother. The natural mother and father were divorced on March 17, 1980. On May 14, 1980, the paternal grandparents filed a petition seeking custody of the two children. On June 30, 1980, the matter was continued to allow for the preparation of home studies. On July 14,1980, the case was continued to August 28, 1980. On August 28, 1980, all of the above parties appeared, except for the natural mother; she had moved to California taking her daughter Jerrah with her. The natural father did not contest his parents’ petition. The court heard testimony from the paternal grandmother and continued the case to December 10, 1980. On December 10, 1980, the natural mother appeared and the hearing was resumed. The case was continued until December 30, 1980 when the court finished hearing testimony. The lower court entered an order on January 13, 1981 awarding custody in the following manner:

1) Custody of Charles, Jr. was awarded to the paternal grandparents;

2) Custody of Jerrah was awarded to the natural mother, conditioned on

a. her residing with the maternal grandparents; and

b. Jerrah’s non removal from Westmoreland County without permission of the court; and

3) that visitation between the parties be arranged.

Appellant raises three issues on appeal.

I. Whether the findings of facts of the trial court are supported by the record?

If the issue is whether we should reverse the lower court’s findings of fact, then indeed we must defer to the lower court, and reverse only where in making the findings the lower court has abused its discretion. This is so because the lower court saw the witnesses and is therefore much more able to appraise their credibility than we. In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977). However, “we are not bound by [the lower court’s] inferences or deductions . .. from the facts found.” In re Custody of Hernandez, supra, 249 Pa.Superior Ct. at 290, 376 A.2d at 656.
Commonwealth ex rel. Berman v. Berman, 289 Pa.Superior Ct. 91, 432 A.2d 1066 (1981).

Appellant challenges findings numbered 16, 17 and 25.

No. 16. “Thereafter, the said A. Moore went to the State of Florida with the said Jeff McKristy ostensibly to obtain a job, but returned in approximately September or October and regained custody of Jerrah Moore from her mother.” Thereafter refers to sometime after early June of 1979. Jeff McKristy, was at that time appellant’s fiance. Charles, Jr. remained at that time in the custody of the paternal grandparents, and Jerrah was left with the maternal grandparents.

We must agree with appellant that finding No. 16 is not totally accurate. Unchallenged testimony established that appellant left in the middle of June 1979 for Florida and returned on July 5, 1979. (N.T., p. 166; N.T. 8/28/80, p. 9) While appellant reassumed full custody of Jerrah in October 1979, uncontested testimony established that when appellant returned from Florida she resided, with Jerrah, at her parents’ home, for a couple of weeks. She then moved into an efficiency apartment where she cared for Jerrah during the day. In October 1979, appellant obtained larger living quarters and took Jerrah back on a full time basis (N.T. 106-107).

No. 17. “In February 1979 the said Elizabeth A. Moore was convicted in the Armstrong County and Westmoreland County Courts of criminal conspiracy and possession with intent to deliver cocaine and marijuana and sales of cocaine, all felonies, resulting in a period of three-years probation.”

Appellant was not convicted of possession with intent to deliver. She was convicted of three counts of conspiracy pertaining to the sale of drugs (all three were felonies). (N.T., pp. 22, 158). There were no indications that appellant herself either used drugs or was actively involved in trafficking such (N.T., pp. 30-31, 155).

No. 25. “The natural mother has demonstrated a certain unstable conduct raising serious questions concerning her ability to properly care for and maintain the minor child Jerrah Moore without the proper supervision.”

We believe this finding is actually a deduction arrived at from the facts presented. Such will be discussed later in this opinion. Due to our disposition of this case as a whole, no further discussion of the above factual discrepancies is necessary.

II. Whether the paternal grandparents met their burden of proof for obtaining custody?

Both the Supreme Court and this court have addressed the issue of a parents right to custody vis-a-vis the right of grandparents to the custody of the same children. In resolving this dilemma, Judge Spaeth set forth the following approach in In Re Hernandez, 249 Pa.Superior Ct. 274, 284, 376 A.2d 648, (1977) which was adopted by the Supreme Court in Ellerbe v. Hooks, 490 Pa. 363, 367-368, 416 A.2d 512 (1980).

“When the judge is hearing a dispute between the parents, or a parent, and a third party, .. . [t]he question still is, what is in the child’s best interest? However, the parties do not start out even; the parents have a ‘prima facie right to custody,’ which will be forfeited only if ‘convincing reasons’ appear that the child’s best interest will be served by an award to the third party. Thus, even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the parents’ side. What the judge must do, therefore, is first, hear all evidence relevant to the child’s best interest, and then, decide whether the evidence on behalf of the third party is weighty enough to bring the scale up to even, and down on the third party’s side.” (Footnote omitted)

“[Tjhese principles do not preclude an award of custody to the non-parent. Rather . . . the non-parent bears the burden of production and the burden of persuasion and that the non-parent’s burden is heavy”. 490 Pa. at 368, 416 A.2d 512. An associated principle, pertinent to the current appeal is the law’s preference that siblings be raised together absent “compelling reasons to the contrary”. See Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 327, 421 A.2d 157 (1980) and cases cited therein.

The lower court relied on the following facts, based on the testimony given, to find that the natural mother had “demonstrated a certain unstable conduct”. She had been convicted of three counts of criminal conspiracy resulting in three years probation. Appellant had three children born of a prior marriage; they are in the custody of their paternal grandparents and the appellant seldom sees, visits or attempts to visit them. “There [had] been very little visitation or contact by the natural mother with her son Charles R. Moore, Jr.” (Findings of Fact, No. 10) The mother’s then fiance was, at the time of the court’s order, starting on a six-month cruise with the United States Navy.

The court was “impressed” with the paternal grandparents’ love and interest in Charles, Jr. and found them to be suitable parties to maintain custody of Charles, Jr. The court noted that it originally felt that Jerrah should also be placed with her grandparents, but as she has lived most of her life with her mother, the grandparents had not developed a lasting relationship with her. The court found that the natural mother had a poor relationship with her son and had failed to show an interest in him. The paternal grandparents could offer a “wholesome and moral environment” for the child and the court would not disturb the stability of Charles, Jr.’s life with his grandparents.

In contrast, the court found the natural mother offered a “chaotic life”. After the action had been initiated, she admittedly left Pennsylvania with her daughter, fearing she would lose her daughter. While she resided in California she resided in three separate places within a short span of time. The last of the three residences she and her fiance shared with another unmarried couple. Prior to the move to California, appellant in June 1979 had left for Washington, D. C. with her previous fiance, leaving the two children to be supervised by a seventeen (17) year old babysitter. Appellant returned to Pennsylvania and subsequently departed later in June 1980, (Charles, Jr. remained with the father’s parents and Jerrah with the mother’s parents) with her prior fiance for Florida and returned a few weeks later. Thereafter she went to California with her new fiance taking Jerrah with her. The court therefore felt justified in questioning the stability and morality of the environment appellant had to offer. The court hesitantly granted custody of Jerrah to her mother based on the mother living with her parents whom the court felt would act as a safeguard for the well being of the child. The paternal grandparents living nearby would permit the two children to visit.

A brief review of the various similar factual situations previously faced by the courts of the Commonwealth will assist in explaining our disposition here.

In Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980) the Supreme Court upheld the trial court’s grant of custody to the maternal grandparents over the natural father’s objection. There the children had experienced a chaotic early childhood and the grandparents’ home was the sole stabilizing influence. Two of the children had lived with their grandparents for four years, up to 1972. The mother had a third child to a second marriage. She took custody of the two prior children in 1972. During the period of 1972-1978 the three children resided with the mother during the week. Three of the four weekends of the month they stayed with their grandparents; the remaining weekend, the first two children visited their father. All three spent the summers with their grandparents. When the mother died during the summer of 1978 the boys were living with their grandparents. The court recognizing the adverse effect caused by the disruption of the relationship with the grandparents and the strong policy of raising siblings together affirmed the custody in the grandparents.

Similarly, in Ellerbe v. Hooks, supra, the court was unwilling to disturb the grandmother’s custody of an eleven (11) year old child who had lived with her grandmother since she was two years old.

This court, in Dile v. Dile, 284 Pa.Superior Ct. 459, 426 A.2d 137 (1981), affirmed the lower court’s award of custody to the paternal grandmother over the natural mother. The mother was living with a man who had an extensive and varied criminal record. Both the mother and her male friend had some history of drug use. The mother and her companion shared a five (5) bedroom house with five other members of his family. The mother had previously lived with another woman who had children and stood by without objecting while a truant teenage babysitter drank beer in the residence. The mother did not even object when the babysitter mixed drugs and beer, resulting in an overdose requiring hospitalization. Viewing all the circumstances together, the court found a sufficient showing of “convincing reasons”.

In contrast this court in Palmer v. Tokarek, 279 Pa. Superior Ct. 458, 421 A.2d 289 (1980) granted the natural father custody of an eight (8) year old instead of contending maternal grandparents. For five years the child and his mother lived with the grandparents. The mother in 1976 moved out of state taking the child with her. The child was returned to the care of the grandparents when he failed to adjust to the new environment. Throughout this period the father exercised visitation rights; several times relying on enforcement procedures to do so. The father had remarried. Though the child expressed his preference to remain with his grandparents, the court decided otherwise. There was conflicting expert testimony as to the potential psychological effect a change in custody could have on the child. The court found “this preference for consistency must be outweighed by the right of the natural parents to custody. Therefore, we conclude that the fact that [the child] has been well cared for and loved by his grandparents, and that he prefers to remain with them does not amount to such convincing reasons as would overcome the father’s right to have [the child] with him”. 279 Pa.Superior at 295, 421 A.2d 289. Claims that the father used profanity or was prone to use violence was not supported by the record; there was no evidence that the father swore in the child’s presence or was violent in front of or toward the child.

After comparing the present case to the precedent discussed above, we find that the appellee-paternal grandparents have failed to establish “convincing reasons” for placing Charles, Jr. with them; however this is not to-say that custody of Jerrah and Charles, Jr. should be awarded to the natural mother. At the time of the court’s order, Charles, Jr. had been residing with his paternal grandmother for approximately nineteen (19) months. This period is in sharp contrast with Albright (4 years with grandparents, followed by 6 years shared between mother and grandparents); Ellerbe (9 years with grandmother); and Palmer (father gained custody even though children resided with grandparents for greater portion of 8 years).

However, we may not overlook the lower court’s finding that appellant’s desire to visit Charles, Jr. appeared to be somewhat limited. Nor can we or should we ignore appellant’s criminal record, her nomadic tendencies, and changing living arrangements. However, the trial court failed to inquire into the effect such factors had upon the children.

The [parents’] right to custody is forfeitable only by misconduct or other factors which substantially effect the child’s welfare. (Citations omitted) Because [appellees] have not shown that the alleged misconduct of the [parent] in any way affects the [children’s] welfare, we hold that such conduct cannot be said to bear on the [parent’s] right to custody.

Palmer, 279 Pa.Superior Ct. at 472, 421 A.2d 289. See also Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 298, 426 A.2d 555 (1981); and Jones v. Floyd, 276 Pa.Superior Ct. 76, 419 A.2d 102 (1980).

Additionally, while the hearing court, did demonstrate that it considered the sibling relationship between Jerrah and Charles, Jr. by ordering visitation to “establish and maintain a lasting relationship,” we believe the court did not adequately address such. As previously mentioned the policy that siblings should be raised together is strongly entrenched. Albright, supra.

However, while strong, this policy in favor of raising siblings together is not inflexible. It is rather a policy to which the hearing judge must always give careful attention in determining—and this policy is inflexible—what is in the best interest of the child. See Tobias v. Tobias, 248 Pa.Superior Ct. 168, 374 A.2d 1372 (1977).

In Interest of Tremayne Quame Idress, 286 Pa.Superior Ct. 480, 429 A.2d 40 (1981). The hearing court justified the split custody of the two children on the grandparents’ bond with Charles, Jr., which did not exist with Jerrah. We find that in the circumstances of this case such is not adequate to cause siblings to be raised apart. A court must also look to the relationship between the siblings themselves and benefits of such relationship.

We find it necessary to remand for further proceedings regarding the impact of appellant’s behavior upon the children and for further consideration of the sibling relationship.

III. Whether the court abused its discretion in placing restrictions upon appellant’s custody of Jerrah?

A trial court has the authority and power to impose conditions upon a grant of custody. Lewis v. Lewis, 271 Pa.Superior Ct. 519, 414 A.2d 375 (1979); Commonwealth ex rel. Ashfield v. Cortes, 210 Pa.Superior Ct. 515, 234 A.2d 47 (1967). But, “the court must not, under the rubric of protecting the best interest of the child, interfere too much with the parent’s care and custody”. In Re Custody of Frank, 283 Pa.Superior Ct. 229, 247, 423 A.2d 1229, 1239 (1980). Nor, should a custodial condition unduly interfere with the custodian’s freedom of movement. Commonwealth ex rel. Steiner v. Steiner, 257 Pa.Superior Ct. 457, 390 A.2d 1326 (1978).

Appellant first complains of the condition requiring her to live with her parents. We need not address the propriety of such condition. Appellant’s notice of appeal was filed with the lower court on January 23, 1981 at 1:53 P.M. Appellant filed a petition for supersedeas requesting the court stay the condition that appellant reside with her parents; this petition was clocked in at 3:22 P.M., January 23, 1981. The court granted such petition on January 23, 1981, at an unknown time. Under Rule 1701 Pennsylvania Rules of Appellate Procedure the trial court is divested of its jurisdiction during the pendency of an appeal. Commonwealth v. Gottshalk, 276 Pa.Superior Ct. 102, 106 n.5, 419 A.2d 115 n. 5 (1980).

As the petition was filed after the notice of appeal, the court was without jurisdiction to modify its order. Nonetheless we believe it is not necessary or desirable to decide the merits of the substantive claim. As the lower court has already indicated that it was agreeable to a modification of its order and we must remand for other reasons, we find it preferable that the lower court first reconsider such condition on remand.

Appellant’s final contention is that since the court restricted her from leaving the jurisdiction, appellees’ custody of Charles, Jr. should likewise have been conditioned. Appellant argues that the purpose behind such condition is to facilitate the sibling relationship and visitation, therefore Charles, Jr. should not be removed from the jurisdiction. Appellant relies on Davidyan v. Davidyan, 230 Pa.Superior Ct. 599, 606, 327 A.2d 145, 149 (1974).

We tend to agree with appellant-mother’s position. While we find no fault with conditioning a parent’s custody upon allowing grandparents to visit with the child, In Inter est of Tremayne Quame Idress R., supra, we believe grandparents’ custody should be, in appropriate circumstances, likewise restricted to allow for parental visitation. A technical application of the lower court’s custody order could result in the absurd situation of appellant being forced to remain in the Commonwealth with Jerrah while appellees take Charles, Jr. outside of Pennsylvania. We believe this potential result is contrary to the intent of the hearing judge and direct the lower court to address this apparent inconsistency on remand.

The order of the lower court is vacated and remanded to the court below for proceedings not inconsistent with this opinion. The parties shall be granted leave to present evidence as to a change in circumstances occurring since the trial court entered its order of January 13, 1981. We do not retain jurisdiction.

BECK, J., concurs in the result.

HESTER, J., files a concurring and dissenting opinion.

HESTER, Judge,

concurring and dissenting:

I concur with the finding of the majority to the effect that it is necessary to remand for further proceedings regarding the impact of appellant’s (Elizabeth A. Moore, the mother of the children) behavior upon the children and for further consideration of the sibling relationship.

I respectfully dissent from that portion of the majority opinion which holds that: “the appellees-patemal grandparents, have failed to establish ‘convincing reasons’ for placing Charles, Jr. with them . . . . ”

I am of the opinion that the record before us clearly demonstrates that it is in the best interests of both children that neither of them be placed in the custody of the mother-appellant. The lower court understated the case when it concluded that “the natural mother has demonstrated a certain unstable conduct raising serious questions concerning her ability to properly care for and maintain the minor child Jerrah Moore without proper supervision.” Her three felony convictions of drug trafficking; her complete failure to demonstrate any natural love, care and affection for her three children born of a prior marriage; her failure to visit those children; her tendency to move around the country with a variety of male companions; her constant changing living arrangements; leaving the two children involved in this appeal to be supervised by a 17-year old babysitter while she, the appellant, went to Washington, D. C: with a male companion; her limited desire to visit her son Charles, Jr. and her failure to show an interest in him. All of the foregoing facts are not in dispute. Not only do they demonstrate unstable conduct, raising serious questions concerning appellant’s ability to properly care for her daughter Jerrah Moore, they constitute characteristics and conduct that would not be in the best interests of the minors involved.

I concur that remand is necessary.

      . Two volumes of testimony were transcribed, one contains testimony taken on 8/28/80, that volume will be referred to as “N.T. 8/28/80”; the other volume contains testimony from several other days, that volume will be referred to as “N.T.”.

      . It was on this occasion that Charles, Jr. was bitten by a dog and as a result eventually came into the custody of his paternal grandparents.

      . Appellant contends she did not attempt more strenuously to visit Charles, Jr. because she believed appellees would prevent such.

      . No testimony concerning the psychological impact of the questionable. behavior upon the children was presented. Also the court refused to talk with Jerrah and Charles, Jr. (N.T., p. 189).

      . The legislature has by statute granted grandparents such right under certain circumstances. See Act of Nov. 5, 1981, P.L. 322, No. 115 § 14, effective in 60 days.


author: LIPEZ, Judge:

text:
    445 A.2d 1288
    COURIER TIMES, INC., Calkins Newspapers, Incorporated and Burlington Times, Inc., v. UNITED FEATURE SYNDICATE, INC., Appellant in No. 501, and Philadelphia Newspapers, Inc., Appellants in No. 523 and Eugene L. Roberts, Jr.
    Superior Court of Pennsylvania.
    Argued March 10, 1982. .
    Filed May 21, 1982.

      Phillip A. Proger, Washington, D. C., and Stephen Wales Armstrong, Philadelphia, for appellant (at No. 501) and for appellee (at No. 523).
    Gregory M. Harvey, Philadelphia, for Courier, et al., appellees.
    Samuel E. Klein, Philadelphia, for Philadelphia Newspapers, appellant (at No. 523) and for appellee (at No. 501).
    Before WICKERSHAM, CIRILLO and LIPEZ, JJ.
   LIPEZ, Judge:

This appeal is from an order granting a preliminary injunction, which decrees that, pending the outcome of the three plaintiff newspapers’ request for a permanent injunction, defendant United Feature Syndicate, Inc. (United) must specifically perform an alleged one-year oral contract permitting the plaintiff newspapers to publish the popular comic strip, “Peanuts.” Separate appeals were filed by United and by defendant Philadelphia Newspapers, Inc. (the Inquirer), which claimed it had exclusive rights to “Peanuts” on the basis of a written contract with United. The two appeals were consolidated, and expedited argument was held before this panel on March 10, 1982. We affirm.

The findings of the chancellor, Judge William Hart Rufe, III, provide an excellent summary of the pertinent facts:

1. Plaintiff, Courier Times, Inc. is a daily and Sunday newspaper with a daily circulation as of January 27, 1982 of approximately 65,000 located primarily in the area of lower Bucks County.

2. Plaintiff, Calkins Newspapers, Incorporated, publishes the Doylestown Daily Intelligencer, a daily and Sunday newspaper with a daily circulation as of January 27, 1982 of approximately 28,000 located primarily in the area of central Bucks County.

3. Plaintiff, Burlington Times, Inc. is a daily and Sunday newspaper with a daily circulation as of January 27, 1982 of approximately 42,000 located primarily in the area of Willingboro and Burlington County, New Jersey.

4. John J. Carroll is the “Senior Vice President-Sales” for United, having been employed by United for over forty years. He worked as a salesman for United until 1972, when he became Sales Manager, which position he retained until 1979 when he was elevated to Senior Vice President-Sales. Only the president of United, one Robert Metz, is higher in the corporate structure of United than Mr. Carroll. There are also two Vice Presidents of United: David Hen-din, Vice President-Editorial Director; and Sid Goldberg, Vice President-Managing Editor and Comics Editor.

5. As Senior Vice President-Sales, Mr. Carroll’s duties included calling on major newspapers across the country, such as the two Philadelphia papers, the Inquirer and Bulletin, the Chicago Tribune, the Chicago Sun Times, The San Francisco Chronicle, the San Francisco Examiner and the San Jose Mercury. In October, 1981 his territory was reduced to the states of New Jersey and Pennsylvania. No reason was given for this reduction, but we note Mr. Carroll lives in Edison, New Jersey, and he is approximately 64 years of age.

6. As Senior Vice President-Sales for United, Mr. Carroll also represented United at many trade shows and industry conventions across the country and served as United’s representative to the Comics Council, a national organization of syndicate representatives and editors responsible for comics. We accept as completely credible, and find as fact, Mr. Carroll’s own self-assessment that he is one of the most experienced persons in this line of work in the entire United States.

7. As Sales Manager and as Senior Vice President-Sales, Mr. Carroll signed many contracts on behalf of United. Exhibits P-16 through P-23. Mr. Carroll testified that he does not presently have authority to sign contracts for United. However, he also testified that Mr. Metz instructed him on January 29,1982 not to participate any further in the sale of “Peanuts” in the Philadelphia market. There is no other evidence whatsoever of any limitation on Mr. Carroll’s authority representing United. Therefore, we find as fact that Mr. Carroll did have actual authority to represent and contractually bind United as of January 27, 1982 and any limitation on that authority, if any, did not exist prior to January 29, 1982.

8. No notice of any kind, written or otherwise, was ever transmitted or communicated to any of the clients or customers of United giving notice of any limitation in Mr. Carroll’s authority. Mr. Carroll, in his forty years with United, never made a contract or agreement with a client or customer of United that was not accepted, approved and honored by United. Mr. Carroll knew and dealt with Mr. Sandy Oppenheimer, editor of the Courier, for twenty years, made agreements for publishing United features and comics in the Courier, and signed contracts confirming such agreements during that period. No notice of any limitation of Mr. Carroll’s authority to act on behalf of United was ever transmitted or communicated to Mr. Oppenheimer. We find that Mr. Carroll had apparent authority, as well as actual authority to represent and contractually bind United on January 27, 1982.

9. Mr. Carroll and Mr. David Hendin, Vice President-Editorial Director for United, both testified to the procedure by which agreements are made between United and a newspaper publisher. When a United salesman and the newspaper publisher agree on the terms of the sale of a feature or comic the salesman calls New York immediately for approval. Assuming immediate approval, which apparently is the usual situation, the clerical staff is instructed to prepare written contracts forthwith, and if the salesman has the reproduction proofs with him as samples, he may leave them with the editor at that time. The editorial department of United immediately initiates the forwarding of continuing reproduction proofs to the newspaper. The written contracts are then forwarded to the newspaper for execution, and upon return are executed by United, whereupon one copy thereof is returned to the newspaper. This contract signing process may take a number of weeks during which time the newspaper will continue publishing the contracted for feature, invoices will be sent out by United, and payment made thereon, all based on the initial oral agreement. Occasionally, a newspaper will fail to return the executed contract, whereupon United eventually discontinues sending the reproduction proofs, and submits bills for all proofs previously sent but unpaid. Neither United employee testified to a single instance in which United failed to complete an executed contract returned to it by a newspaper, prior to the present case. Mr. Gary Andrews, managing editor of the Quakertown Free Press, another United customer, confirmed this procedure and testified that his newspaper was presently carrying four United features, one pursuant to a written contract and the other three pursuant to the initial oral agreement, although he anticipated receiving the written contracts for his execution eventually. We find as fact that contracts for the sale of features, cartoons and comics by United are initiated as oral contracts subsequently confirmed by written contracts.

10. The written form of agreement used by United contains eight numbered paragraphs. The first three, entitled “1. Service”, “2. Rate”, and “3. Term”, all embody the provisions agreed upon by the newspaper and the United representative at the time of the initial oral agreement, and are the only provisions binding United beneficially to the newspaper. The remaining five paragraphs, entitled, “4. Use”, “5. Performance”, “6. Assignment”, “7. Default”, and “8. Miscellaneous”, all relate to protections for United and limitations on the newspapers use of the features, and all bind the newspaper beneficially to United.

11. Paragraph 8 of the written agreement provides as follows:

“8. Miscellaneous: Time as to notice of termination under Paragraph 3 and as to payments is of the essence. Oral representations or agreements not embodied in this Agreement are not binding, and this Agreement cannot be changed or terminated orally. A waiver of any breach of, or right under, this Agreement shall not be construed as a waiver of any future breach or right. This Agreement shall not be effective until accepted by UFS at New York, New York, and shall bind each party’s successors and assigns.” (emphasis added)

We find as fact that the written form of agreement confirms, ratifies, and acknowledges prior oral agreements consistent with the terms contained in the written agreement.

12. The effectiveness of the agreement as set forth in the last sentence of Paragraph 8, quoted above, is contingent upon acceptance by United in New York. However, as both Mr. Carroll and Mr. Hendin testified, the oral provisions of the contract as to Service, Rate and Term, the only terms binding United beneficially to the newspaper, are approved and accepted in New York before the written contract is even prepared and forwarded to the newspaper, and before the reproduction proofs are delivered. We find as fact that the act of forwarding the written agreement to the newspaper for execution, and the delivery of the reproduction proofs for publication, is in and of itself acceptance by United of the oral provisions of the agreement, thus binding United to those terms, whether or not United subsequently executes the written agreement, which only has the effect thereafter of binding the newspaper.

13. David Hendin, Vice President-Editorial Director for United testified to the reason for urgency in initiating publication of features in a newspaper. A cartoonist or comic artist prepares a unique and separate cartoon or strip for each and every day. If United has not contracted for the sale of that cartoon or strip with a newspaper for that particular day, the income receipts for that particular cartoon or strip, and the consequent royalties to the artist, are virtually lost forever. Hence, United moves with dispatch, on the basis of the oral agreement only, to get the cartoon or the strip to the newspaper as quickly as possible, in order to initiate billing therefore on the earliest possible daily cartoon or strip. Of course, if the newspaper subsequently fails to execute the written agreement, which includes the copyright requirements, limits on United’s liability, default for non-payment, and United’s right to assign the agreement, United eventually discontinues honoring the oral agreement.

14. The cartoon strip “Peanuts”, created by Charles Schulz, is the most popular comic strip that United now offers, and the most valuable licensing property that United owns. It is considered the most popular comic strip in the United States in that it appears in more newspapers nationally than any other comic strip. “Peanuts” characters such as Snoopy, Charlie Brown, Lucy and Linus are featured in dolls, toys, posters, television specials and generally have a very high identification factor. Mr. Oppenheimer testified that many readers read newspapers for the features only and therefore it is a great advantage to have good features. “Peanuts” is regarded as the most popular feature of all.

15. For approximately thirty years “Peanuts” appeared exclusively in the Philadelphia Bulletin, that newspaper having contracted with United for exclusivity in the complete Philadelphia area market which encompasses the circulation of all three plaintiffs.

16. On Wednesday, January 27, 1982 the Philadelphia Bulletin announced that it would cease publication after its final edition on Friday, January 29, 1982.

17. The cessation of publication of the Philadelphia Bulletin threw several hundred thousand subscribers onto the open market for remaining newspapers, including many thousands located in the overlapping circulation area of the plaintiffs and the defendant, Inquirer. A unique atmosphere of competition for those Bulletin subscribers was thus created, and quite obviously the ability or inability to continue a former Bulletin feature, particularly “Peanuts”, the most popular feature of all, would weigh heavily in that competition.

18. On Wednesday, January 27, 1982, very shortly after learning of the scheduled demise of the Philadelphia Bulletin, John J. Carroll, Vice President-Sales for United called Sandy Oppenheimer, editor of the Courier and quoted “premium” specific terms of Service, Rate and Term for the non-exclusive sale of “Peanuts” to the Courier. The terms were accepted and agreed upon by Mr. Oppenheimer for the Courier.

19. On Wednesday, January 27, 1982 Mr. Carroll similarly called Sandra Bauers, Associate Editor of the Intelligencer, and similarly quoted the specific terms of Service, Rate and Term for the non-exclusive sale of “Peanuts” to the Intelligencer. The terms were accepted and agreed upon by Ms. Bauers for the Intelligencer.

20. On Wednesday, January 27, 1982 Mr. Carroll also similarly called Jean West, Features Editor of the Times and again, similarly quoted the specific terms of Service, Rate and Term for the non-exclusive sale of “Peanuts” to the Times. The terms were accepted and agreed upon by Mrs. West for the Times.

21. On Wednesday, January 27, 1982, immediately after the phone calls were completed and the contract terms agreed upon, Mr. Carroll dictated “sales forms” P-1, P-2 and P-4, directing the clerical staff in New York to prepare and send contracts and process the sale of “Peanuts” to each of the three plaintiff newspapers. “Process the sale” is a direction to the staff to forward the reproduction proofs to the newspapers.

22. On Thursday morning, January 28, 1982, Mr. Carroll and Mr. Hendin met with Mr. Greenberg, the person in charge of purchasing features for the Inquirer. Mr. Green-berg, on behalf of the Inquirer, made a specific offer to purchase “Peanuts” on an exclusive basis. Mr. Carroll informed Mr. Greenberg that he had already sold “Peanuts” to the Calkins papers, which Mr. Greenberg considered to be a “glitch” to their desire for exclusive rights. Mr. Greenberg, Mr. Carroll and Mr. Hendin did not conclude any agreement at that time, as Mr. Greenberg said he would have to “take the situation upstairs, to higher authority.”

23. On Friday, January 29, 1982, the clerical staff of United in New York prepared the contracts for the sale of “Peanuts” to each of the three plaintiff newspapers, and forwarded them with cover letters to the particular editors with whom Mr. Carroll had contracted. Also on Friday, January 29, 1982, the reproduction proofs for publication were delivered to the Times, which does the Sunday comics printing for all three Calkins newspapers.

24. Sometime on Friday, January 29, 1982, (the time was not specified), Mr. Carroll called Mr. Metz, the president of United, and informed him that he had sold “Peanuts” to the Calkins newspapers. Mr. Metz then told Mr. Carroll not to participate any further in the sale of “Peanuts” in the Philadelphia market.

25. On Saturday afternoon, January 30, 1982, Mr. Metz called Mr. Oppenheimer at this home and advised him that a mistake had been made, that United would not be able to honor the agreement made by Mr. Carroll, and that the Inquirer was going to get “Peanuts”, not the Calkins’ newspapers.

26. On Monday morning, February 1, 1982, all three contracts for the sale of “Peanuts” together with their cover letters arrived on the desks of the editors with whom Mr. Carroll had contracted. Mr. Oppenheimer, on behalf of the Courier, and Charles P. Smith, publisher of the Intelligencer, on behalf of that paper, both executed and returned the contracts to United immediately. Mrs. West, on behalf of the Times, was out of her office on Monday and Tuesday, February 1 and 2,1982, but signed and returned the contract to United upon her return Wednesday, February 3, 1982. The reproduction proofs also arrived at the Times on Monday morning, February 1, 1982.

27. On Monday afternoon, February 1, 1982, after the executed contracts had been sent back to United, Mr. Metz called Sandra Bauers and informed her that the Intelligencer would not be getting “Peanuts” because there had been “simultaneous negotiations”, that he was sorry, but would try to make it up. However, he did not explain further.

28. On Wednesday, February 3, 1982, when Jean West returned to her office she had a memo to return a call to Mr. Metz. She returned the call, and a secretary at United took her name and phone number and said she would have Mr. Metz call back. However, he never did.

29. On February 8, 1982, United and the Inquirer completed a written agreement for the exclusive right to publish “Peanuts” in the Philadelphia area market, which for the purposes of this case, specifically included Bucks County, Pennsylvania, and Burlington County, New Jersey. Exhibit P-26. The agreement was to begin February 1, 1982 and run for five years. The amounts of the contract were withheld from the record by agreement of counsel as proprietary information, but the prior contract between United and the Philadelphia Bulletin (Exhibit P-16) for “Peanuts” was in a weekly amount more than eight times the aggregate weekly amount of the combined Calkins’ newspapers contracts.

30. On February 9, 1982, plaintiffs brought this action for a preliminary injunction to require United to specifically perform its agreements with the three plaintiff newspapers to publish “Peanuts”.

(Footnotes omitted; emphasis in original.)

All parties agree “that on an appeal from the grant or denial of a preliminary injunction, we do not inquire into the merits of the controversy, but only examine the record to determine if there were any apparently reasonable grounds for the action of the court below. Only if it is plain that no grounds exist to support the decree or that the rule of law relied upon was palpably erroneous or misapplied will we interfere with the decision of the Chancellor.” Roberts v. Board of Directors of School District of City of Scranton, 462 Pa. 464, 469, 341 A.2d 475, 478 (1975) (citations omitted).

All parties also agree with Judge Rufe that the criteria he was to follow are those which have been repeatedly stated by our Supreme Court:

[T]he essential prerequisites for the issuance of a preliminary injunction are: first, that it is necessary to prevent immediate and irreparable harm which could not be compensated by damages; second, that greater injury would result by refusing it than by granting it; and third, that it properly restores the parties to their status as it existed immediately prior to the alleged wrongful conduct. Alabama Binder & Chemical Corp. v. Pennsylvania Industrial Chemical Corp., [410 Pa. 214, 189 A.2d 180 (1963)]. Even more essential, however, is the determination that the activity sought to be restrained is actionable, and that the injunction issued is reasonably suited to abate such activity. And unless the plaintiffs right is clear and the wrong is manifest, a preliminary injunction will not generally be awarded: Keystone Guild, Inc. v. Pappas, 399 Pa. 46, 159 A.2d 681 (1960), and Herman v. Dixon, 393 Pa. 33, 141 A.2d 576 (1958).”

John G. Bryant Co., Inc. v. Sling Testing & Repair, Inc., 471 Pa. 1, 7, 369 A.2d 1164, 1167 (1977), quoting Albee Homes, Inc. v. Caddie Homes, Inc., 417 Pa. 177, 181, 207 A.2d 768, 770 (1965); accord, e.g., Commonwealth v. Coward, 489 Pa. 327, 340-41, 414 A.2d 91, 98 (1980).

Judge Rufe’s opinion recasts these requirements in what he considers their order of importance as follows:

1. The plaintiff’s right is clear and the wrong is manifest, and the injunction is reasonably suited to abate the wrong;
2. The injunction is necessary to prevent immediate and irreparable harm which could not be compensated by damages;
3. That greater injury would result by refusing it than by granting it;
4. That the injunction properly restores the parties to their status as it existed immediately prior to the alleged wrongful conduct.

The briefs for both United and the Inquirer contend that Judge Rufe erred in each of these four determinations, which we shall discuss in the same order as Judge Rufe.

We think there is no question that the plaintiff newspapers met the “clear right” requirement. Judge Rule’s findings 4 through 13 and 18 through 20 overwhelmingly establish the formation of oral contracts between United and the plaintiffs on January 27, 1982.

To be enforcible, a contract must represent a meeting of the parties’ minds on the essential elements of their agreement. Yellow Run Coal Company v. Alma-Elly-YV Mines, Ltd., 285 Pa.Super.Ct. 84, 88, 426 A.2d 1152, 1154 (1981). This happened here on January 27, when Mr. Carroll and plaintiffs’ representatives agreed on service (“Peanuts”), rate ($17.50 per week), and duration of the contract (one year). As demonstrated in Judge Rufe’s finding 9, United itself recognized that agreement on these terms was sufficient to form a contract, because its uniform practice was to begin immediate performance at that point.

United and the Inquirer characterize the oral agreement of January 27 as mere “preliminary negotiations,” because they did not include discussions of the terms in paragraphs 4 through 8 of United’s written contract forms, described in Judge Rufe’s finding 10. However, so long as the parties agree on essential terms which they intend to be binding, a contract is formed even though they intend to adopt a formal document with additional terms at a later date. Field v. Golden Triangle Broadcasting, Inc., 451 Pa. 410, 418, 305 A.2d 689, 693 (1973); Goldman v. McShain, 432 Pa. 61, 69, 247 A.2d 455, 459 (1968); Restatement of Contracts, 2d, § 27. The contention of United and the Inquirer that a contract cannot exist until the signed forms are accepted by United at its home office is belied not only by the overwhelming evidence of the uniform practice as described in Judge Rufe’s finding 9, but also by the fact that the Inquirer itself was running “Peanuts” by oral agreement with United before the written contract purporting to give the Inquirer exclusive rights was signed on February 8, 1982.

It is also clear that the three plaintiff newspapers would suffer irreparable injury by being deprived of an extremely popular feature, hampering their effort to compete with the Inquirer for former Bulletin subscribers. The lengthy arguments of United and the Inquirer on this issue can be broken down into two parts: (1) there was no adequate showing that the plaintiff newspapers would have any losses from being deprived of “Peanuts,” and (2) assuming losses should occur, they .will be compensable in readily ascertainable damages. The testimony of Mr. Oppenheimer, which Judge Rufe found credible and summarized in finding 14, plainly demonstrated the superior value of “Peanuts” in the competition for former Bulletin subscribers. It is difficult to understand the Inquirer’s contention that this testimony was inadequate because Mr. Oppenheimer conceded that the plaintiff newspapers would not cease to exist if deprived of “Peanuts.” Plaintiffs are required to show irreparable harm, not annihilation.

Moreover, just as appellants’ claim that there is never an oral contract in the newspaper features industry was contradicted by the Inquirer’s own printing of “Peanuts” under an oral contract, the claim that “Peanuts” is not a uniquely valuable property in competing for former Bulletin subscribers is contradicted by the fact that the Inquirer placed “Peanuts” in its list of special features above the masthead for four consecutive days during the period shortly after the Bulletin’s demise. All features listed for those days are comic strips. “Peanuts” is the only one listed on all days, and it is listed first every day.

Thus the Inquirer itself viewed “Peanuts” as the most valuable of the newly added features in attracting readership during this period. While “Peanuts” was demonstrably the most valuable, however, the other features have value too. Since all newspapers involved here are adding a number of features at the same time, it will be impossible to attribute particular increases in circulation to any one feature. This is especially true because, as appellants themselves assert, the drawing power of “Peanuts” does not stand on its own, but only in combination with other features.

Greater injury will result from denying the preliminary injunction than from granting it. United can have no irreparable injury, and so it is only the Inquirer’s potential for injury which must be weighed against that of the plaintiffs. As Judge Rufe’s opinion points out, denial of the injunction would completely deprive the plaintiff newspapers of “Peanuts,” while the Inquirer will still be able to publish it whether the injunction is granted or denied. The grant of the injunction will deprive the Inquirer only of the exclusive character of its publication, and even this effect will be limited to a small part of its circulation area.

Finally, Judge Rufe’s order restored the “status quo” which existed when the alleged wrong occurred. The wrong here occurred on January 29, 1982, when United repudiated the oral contracts and refused to perform further. The preliminary injunction restored the conditions existing just before United’s repudiation. Judge Rufe thus had reasonable grounds for finding all requirements for a mandatory preliminary injunction were met.

Order affirmed.

      . Although interlocutory, the order is appealable .under Pennsylvania Rule of Appellate Procedure 311(a)(4), effective April 22, 1979. 8 Pa.Bull. 3636, 3637 (1978); see Fischer v. Department of Public Welfare, 497 Pa. 267, 270 n.2, 439 A.2d 1172, 1174 n.2 (1982).

      . The Inquirer was made a defendant along with United, but the chancellor denied the request for a preliminary injunction as to the Inquirer, and granted it only as to United. The Inquirer nonetheless has the right to appeal the order, however, because the effect of granting the preliminary injunction against United is to deprive the Inquirer of its claimed contract right to exclusivity in publishing “Peanuts” within its circulation area. The Inquirer is therefore a “party who is aggrieved” by the order under Pennsylvania Rule of Appellate Procedure 501. Cf. English v. Lehigh County Authority, 286 Pa.Super.Ct. 312, 334, 428 A.2d 1343, 1355 (1981), rearg. den’d., petition for allowance of appeal granted; Tripps Park Civic Association v. Pennsylvania Public Utility Commission, 52 Pa.Commw.Ct. 317, 321-22, 415 A.2d 967, 970 (1980); see also Application of El Rancho Grande, Inc., 496 Pa. 496, 501-02, 437 A.2d 1150, 1153 (1981).

      . See Pa.R.A.P. 513.

      . See Pa.R.A.P. 2313.

      . Requests for a stay of the order granting the preliminary injunction were denied both by the chancellor and by Judge Spaeth of this court.

      . Some of the more recent among the myriad of Supreme Court cases in accord with this standard are: Fischer v. Department of Public Welfare, 497 Pa. 267, 270, 439 A.2d 1172, 1174 (1982); Hospital Association of Pennsylvania v. Commonwealth Department of Public Welfare, 495 Pa. 225, 232, 433 A.2d 450, 454 (1981); Mazzie v. Commonwealth, 495 Pa. 128, 133, 432 A.2d 985, 988 (1981); Valley Forge Historical Society v. Washington Memorial Chapel, 493 Pa. 491, 500, 426 A.2d 1123, 1128 (1981); Shanaman v. Yellow Cab Company of Philadelphia, 491 Pa. 516, 519, 421 A.2d 664, 666 (1980); Bell v. Thornburgh, 491 Pa. 263, 267, 420 A.2d 443, 445 (1980); Commonwealth v. Coward, 489 Pa. 327, 340, 414 A.2d 91, 98 (1980); compare Singzon v. Department of Public Welfare, 496 Pa. 8, 10-11, 436 A.2d 125, 126-27 (1981) (plurality opinion) with id., 496 Pa. at 13-4, 436 A.2d at 129 (concurring opinion).

      . Although Judge Rufe placed the “clear right” requirement first, one case on which he relies states, “The two most important factors to be taken into account are first, whether an immediate and irreparable harm is actually threatened and second, whether greater harm is caused by issuing the injunction than by refusing it.” New Castle Orthopedic Associates v. Burns, 481 Pa. 460, 465, 392 A.2d 1383, 1385 (1978) (plurality opinion). Indeed, some recent cases confusingly suggest that when the “status quo” requirement (which Judge Rufe ranks last) is met, there is no need to show a “clear right” at all. See note 8, infra. In any event, we do not consider the order of importance significant in this case, and we have adopted Judge Rufe’s order of importance merely for convenience of discussion.

      . United and the Inquirer argue that cases such as McMullan v. Wohlgemuth, 444 Pa. 563, 281 A.2d 836 (1971) require plaintiffs to make an even stronger showing than a “clear right,” because the injunction granted here was mandatory. See, e.g., Jostan Aluminum Products Co., Inc. v. Mount Carmel District Industrial Fund, 256 Pa.Super.Ct. 353, 359, 389 A.2d 1160, 1163 (1978) (plurality opinion) (order granting mandatory preliminary injunction vacated because “rights of the parties are less than entirely clear”). The principal case on which United and the Inquirer rely, McMulIan v. Wohlgemuth, supra, is confusing for a number of reasons. Although it approvingly quotes a statement that a mandatory preliminary injunction is granted only when the rights of the parties are “entirely clear,” the McMullan opinion had said earlier in the same paragraph that a plaintiff could obtain a mandatory preliminary injunction if his rights were simply “clear.” 444 Pa. at 573, 281 A.2d at 841. In the immediately preceding paragraph, however, the merely “clear” right (as distinct from an “entirely clear” one) was said to be a requirement for a preliminary injunction of any kind, not just a mandatory one. 444 Pa. at 572, 281 A.2d at 840. Even if these formulas could be reconciled, it is questionable whether they were supported by a majority of the Court, since three justices concurred in the result and Chief Justice Bell’s “concurring and supplemental opinion,” although it started by saying that he concurred in the opinion of the Court, stated only reasons strongly supporting the opposite result. 444 Pa. at 574, 281 A.2d at 841-42.
      Another confusing aspect of McMullan is that it equates a mandatory preliminary injunction with one which changes the status quo. 444 Pa. at 573, 281 A.2d at 841. On this point, it is plainly contradicted by Roberts v. Board of Directors of School District of City of Scranton, 462 Pa. 464, 469 & n. 1, 341 A.2d 475, 478 & n.1 (1975). Cf. Leubsdorf, The Standard for Preliminary Injunctions, 91 Harv.L. Rev. 525, 535 (1978). Other opinions agree with McMulIan in equating a mandatory injunction with one which changes the status quo, although the same opinions also purport to follow Roberts, which says exactly the opposite. Mazzie v. Commonwealth, 495 Pa. 128, 133, 432 A.2d 985, 988 (1981); Shanaman v. Yellow Cab Company of Philadelphia, 491 Pa. 516, 519, 421 A.2d 664, 666 (1980); Commonwealth v. Coward, 489 Pa. 327, 342, 414 A.2d 91, 99 (1980).
      Further confusion arises from two recent opinions which appear to eliminate the “clear right” requirement, provided that the preliminary injunction does not change the status quo. Fischer v. Department of Public Welfare, 497 Pa. 267, 271, 439 A.2d 1172, 1174 (1982); Valley Forge Historical Society v. Washington Memorial Chapel, 493 Pa. 491, 502, 426 A.2d 1123, 1129 (1981). Whether such a rule could apply to mandatory preliminary injunctions would seem to depend on whether a court followed the Roberts case, which held that a mandatory injunction could preserve the status quo, or the Mazzie, Shanaman and Coward cases, which purported to follow Roberts while contradicting it on this point. Cf. Jostan Aluminum Products

        Co., Inc. v. Mount Carmel District Industrial Fund, supra (citing both Roberts and McMullan, which contradict each other).
      What all this suggests is that Justice Pomeroy was correct in proposing that the Court explicitly abandon the illusory distinctions involving whether a preliminary injunction is mandatory and whether it preserves the status quo, and simply recognize that “courts should and do look at the underlying factual and legal controversies to determine both (1) the degree of irreparable harm that may befall either side if equitable relief is granted or withheld, and (2) the probability of success for the plaintiff after a full hearing.” Township of South Fayette v. Commonwealth, 477 Pa. 574, 587, 385 A.2d 344, 351 (1978) (concurring opinion of Pomeroy, J., joined by Manderino, J.) (footnote omitted). In a future case we might détermine that our Supreme Court’s recent opinions, when we look past their anachronistic and inconsistent formulas to see what the Court actually did in the cases, do establish Justice Pomeroy’s proposal as the standard for preliminary injunctions. See Leubsdorf, supra, 91 Harv.L.Rev. at 565. It is unnecessary to do so here, however, since plaintiffs showing was so overwhelming as to meet the most stringent standard possible. See note 11, infra and accompanying text.

      . The Inquirer claims that the reliance by plaintiffs on the Field and Goldman cases is misplaced, because those cases both involved informal writings, which were claimed to be contracts despite the fact that a more formal document was contemplated later. The Inquirer would distinguish this situation from the case before us, which involves a claim that the earlier contract was formed orally. This reasoning is plainly specious, since plaintiffs do not rely on Field and Goldman for the specific manner in which the earlier contracts were formed. Nothing in either opinion indicates that the holding is restricted to a specific manner in which the alleged earlier contract was formed. What is controlling is whether or not agreement was reached on all essential terms and the parties intended to be bound. This was overwhelmingly established here. See note 11, infra, and accompanying text.

      . United and the Inquirer point out that the written forms themselves provide in paragraph 8: “This Agreement shall not be effective until accepted by UFS at New York, New York, and shall bind each party’s successors and assigns.” This provision does not preclude a prior oral agreement, as succinctly demonstrated by the Supreme Court of Iowa:
      Defendants are right that no action is maintainable by [plaintiff] on the order form itself because of that clause. But that clause does not legally prohibit a parol contract; if it did, defendants would be able to give contractual force to a clause in an order form which they themselves argue is not a contract.

        Meylor v. Brown, 281 N.W.2d 632, 635 (Iowa 1979) (emphasis in original).

      . Plaintiffs’ Exhibit P-29 is the top of Page 1-A of the Inquirer for Saturday, February 6, 1982. At the very top, above the newspaper’s name appear the words, “Inside: Peanuts, Blondie and B.C.,” underlined and in approximately 27-point type. See 45 Pa.C.S. § 101 (1980 Pamphlet at 7).
      Plaintiffs Exhibit P-30 is the top of the Inquirer’s page 1-A for Sunday, February 7, 1982. In the same position and type size appear the words,' “Bulletin comics inside: Peanuts, Family Circus and more.” Plaintiffs’ Exhibit P-26 is a copy of the written agreement signed by the Inquirer and United on February 8, 1982. The commencement date for service on “Peanuts” is February 1, 1982. In addition to this undisputed evidence that the Inquirer ran “Peanuts” pursuant to an oral contract, the undisputed testimony of Mr. Oppenheimer was that plaintiffs were running “Jack Anderson,” another United Feature, at the time of the hearing without a written contract. Furthermqre, United’s own attorney brought out on cross-examination that another newspaper (the Quakertown Free Press) was running features during this period pursuant to an oral contract with United. Indeed, as Judge Rufe’s finding 9 points out, the Free Press’s managing editor testified that no written contract had yet been signed for three of the four United features the Free Press was running at that time. In view of all this, it is surprising that United and the Inquirer have contested this issue at all.

      . Plaintiffs’ Exhibits P-29 and P-30 were described in note 11, supra. In addition, Exhibits P-31 and P-32 show similar listings above the Inquirer’s name for Monday, February 8, 1982 (“Comics inside: Peanuts, Family Circus, Beetle and more”) and Tuesday, February 9, 1982 (“Inside: Peanuts, B.C. Andy Capp and Blondie”), respectively. The premiere position assigned to “Peanuts” by the Inquirer in its efforts to attract former Bulletin readers clearly demonstrates its unique and superior value. Compare Philadelphia Ball Club, Ltd. v. Lajoie, 202 Pa. 210, 51 A. 973 (1902) (baseball player with demonstrably superior talent) with A.L.K. Corporation v. Columbia Pictures, Inc., 440 F.2d 761 (3rd Cir. 1971) (film “Husbands,” while “unique” in sense that every film is unique, not shown to be superior to general run of films). The Inquirer argues that the last sentence of Judge Rufe’s finding 14 (“ ‘Peanuts’ is regarded as the most popular feature of all.”) is not supported by a comparison with features other than comic strips. In view of the fact that the Inquirer used only comic strips above its name on Page 1-A (with “Peanuts” always in the lead position) during this crucial period, this argument is at best a meaningless quibble.

      . Compare Philadelphia Ball Club, Ltd. v. Lajoie, supra, 202 Pa. at 217 n.12, 51 A. at 974 n.12 (superior ball player was “integral part of the team work which is so essential.”) with D.W.H. Corp. v. Twentieth Century Fox Film Corp., 182 F.Supp. 912, 913 (E.D.Pa.1960) (any damages to movie theater which was denied opportunity to exhibit film “Can-Can” could be computed once film completed run at other theater).

      . United does claim in its brief that it will suffer irreparable harm, but the argument it offers does not relate to irreparable harm. Instead, it is essentially a rehash of another section of United’s brief, in which United claims that Judge Rufe in effect awarded permanent relief at the preliminary hearing. This section of the brief is itself principally devoted to restating United’s argument concerning the degree of probability of eventual success on the merits which plaintiffs must show for a mandatory preliminary injunction. We have already held that any possible requirement for a mandatory preliminary injunction has been met. See note 8, supra. As for United’s unsupported claim that Judge Rufe awarded final relief, this is plainly not so, since Judge Rufe’s order explicitly provides that it is only effective pending the outcome of the request for a permanent injunction. We also note that the idea that a court cannot use a preliminary injunction to give all relief available at a final hearing has been severely criticized as a confusing bromide, Leubsdorf, supra, note 8, 91 Harv.L.Rev. at 545-46 & n. 108, but we need not determine here whether the “rule” retains any validity, because Judge Rufe did not award final relief. Cf. note 8, supra.

      . See note 8, supra.


author: PER CURIAM:

text:
    445 A.2d 1297
    Joseph DOBRANSKI and Anna Dobranski, Appellants, v. Perry J. SHERTZ.
    Superior Court of Pennsylvania.
    Argued June 11, 1980.
    Filed May 21, 1982.
    Allan H. Gordon, Philadelphia, for appellants.
    B. Todd Maguire, Wilkes-Barre, for appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   PER CURIAM:

The appeal in this case was taken from the following order: “AND NOW this 27th day of Sept., 1979, the rule to show cause why plaintiffs should not be allowed leave to file their reply to defendant’s New Matter nunc pro tunc is denied and discharged.” This is not a final appealable order. See Pa.R.A.P. 301.

Appeal quashed, and case remanded to the lower court for further proceedings.


text:
    445 A.2d 1298
    COMMONWEALTH of Pennsylvania ex rel. Donna M. SHELLITO v. Virgil M. ANDERSON. Appeal of Donna M. SHELLITO.
    Superior Court of Pennsylvania.
    Argued Nov. 10, 1980.
    Filed May 21, 1982.
    Petition for Allowance of Appeal Denied Nov. 5, 1982.

      Kenneth Thiess, Meadville, for appellant.
    Donald A. Fickenscher, Meadville, for appellee.
    Before PRICE, CAVANAUGH and HOFFMAN, JJ.
   PER CURIAM:

This appeal is taken from an order dismissing appellant’s paternity action. Appellant commenced the action on August 13, 1979, by filing a civil paternity complaint against appellee as the initial step in securing support for a daughter born to her out of wedlock on July 2, 1975. At a hearing held on September 4, 1979, appellee denied paternity and refused to acknowledge any responsibility for the support of the child. Appellant filed a motion requesting that the parties be ordered to submit to blood tests and appellee responded by filing a motion to dismiss the action as untimely filed. The lower court granted appellee’s motion to dismiss and appellant filed an appeal to this court.

The issue raised on appeal is whether this civil action for support of a non-marital child is barred by the running of the two-year criminal statute of limitations in effect at the time appellant’s child was born. That limitation applied to actions in which paternity was denied. The two year criminal statute of limitations was repealed effective June 28, 1978. All paternity actions must now be brought as civil actions pursuant to 42 Pa.C.S.A. § 6701 et seq. The new law provides that civil support actions filed after June 27, 1978 may, with limited exceptions, be brought up to six years after the birth of the child.

Appellee argues that appellant’s right to file a paternity and support action in this case expired on July 2, 1977, two years after the birth of the child and nearly a year prior to the new legislation providing a six-year statute of limitations. He contends that her action cannot be resurrected by the subsequent enactment of a longer period of limitations for civil support actions. Appellant, on the other hand, argues that the six-year statute of limitations, effective June 28, 1978, applies to this action commenced August 13, 1979, notwithstanding her failure to institute criminal proceedings within two years of the birth of her daughter.

The precise issue raised in this appeal was addressed by a panel of this court sitting en banc in the recently filed opinion in Williams v. Wolfe, 297 Pa.Super. 270, 443 A.2d 831 (1982). We held there that repeal of the criminal statute of limitations had no effect on the civil right to support and that any action commenced after June 27, 1978 was therefore governed by a six-year statute of limitations regardless of the running of the now repealed two-year criminal statute of limitations. Our holding in Williams controls the disposition of the instant appeal. Since appellant commenced this action within six years of her daughter’s birth, the action is not barred.

The order of the lower court dismissing the action is reversed and the case is remanded for further proceedings. We do not retain jurisdiction.

      . 18 Pa.C.S.A. § 4323.

      . We deferred our decision in this case until the opinion in Williams had been filed.