text:
    614 A.2d 1386
    John D. PRICE, Appellant, v. Marian PRICE, a/k/a Marian Agresta, a/k/a Marian Bechtold.
    Superior Court of Pennsylvania.
    Submitted July 15, 1992.
    Filed Oct. 20, 1992.

      Kyle A. Burch, Media, for appellant.
    Michael P. Dignazio, Media, for appellee.
    Before CIRILLO, TAMILIA and POPOVICH, JJ.
   TAMILIA, Judge:

John D. Price appeals the trial court’s Order entered August 1, 1991 reducing the alimony pendente lite (APL) Order of July 30, 1987, in favor of Marian Price, from $150 per week to $110 per week.

On June 3, 1986, appellant commenced an action of divorce against appellee. In her answer, appellee requested an award of alimony upon the entry of a divorce decree and subsequently requested APL in the interim. After a hearing, on July 30, 1987, a Master entered an APL Order in the amount of $150 per week. At the time this award was entered, appellant worked full-time and earned approximately $40,000 per year. In 1989, because appellant stopped working and his income was severely decreased, he filed a petition to reduce or vacate the APL award. On October 26,1990, appellee filed a petition for contempt for appellant’s failure to obey the earlier APL Order and asked the court to order appellant to pay a lump sum of $1,620 of arrears. No further action was taken on the contempt petition. On March 1, 1991, the court entered a divorce decree.

After numerous continuances, on August 1, 1991, the court held a hearing on appellant’s petition to reduce or vacate APL. Appellant testified his 1989 income was $18,757 and in 1990, he was semi-retired and his income consisted solely of social security in the amount of $762 per month and approximately $350 per month from seasonal produce sales. Appellant turned 65 years old on January 18, 1992. There was conflicting testimony as to appellant’s current assets, but the evidence revealed his yearly income had decreased significantly since the original APL Order. Appellant now asks this Court to vacate the Order or reduce it further.

After dismissing appellant’s petition to reconsider its August 1,1991 Order, the trial court stated the appeal should not be heard because Orders granting APL are interlocutory and appealable only by permission. The court further stated its reasons for entering its Order, which included the following:

Plaintiff testified that no physician has advised him that he cannot work. The Court concluded that Plaintiff can do same kind of work that he has previously done, but he has made little or no effort to do so. It was stated on the record that he does not want to earn a sum that will affect his Social Security benefits. The Court concluded that his earning capacity has not diminished except as it my [sic] be affected by the current recession. Considering the recession the Order was reduced by FORTY ($40.00) DOLLARS a week.

(Slip Op., Wright, Sr., J., 1/2/92, p. 6.)

Appellant argues the APL award is appealable since the case cited by the trial court, Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985), is not on point. APL is, by its very definition, “[a]n order for temporary support granted to a spouse during the pendency of a divorce or annulment proceeding.” 23 Pa.C.S. § 3103 (emphasis added). Accordingly, the 1987 Order awarding APL to appellee should have ceased upon entry of the divorce decree on March 1, 1991. In addition, the court erred in entering its Order of August 1, 1991 reducing the APL award since the divorce decree already had been entered and no economic issues were left to be resolved between the parties. At that time, while an Order for alimony would have been proper, none was entered and there is no indication that the continuing APL Order was intended to be one for permanent alimony. If such were the case, the court has failed to justify it. Therefore, Fried, supra, does not apply, the appeal was properly taken and the court’s August 1, 1991 Order is vacated.

“The duty to provide alimony pendente lite arises upon the commencement of litigation and continues until all of the economic issues are settled.” Horn v. Horn, 388 Pa.Super. 46, 564 A.2d 995 (1989); see DeMasi v. DeMasi, 408 Pa.Super. 414, 597 A.2d 101 (1991). At the time the trial court entered the divorce decree, there were no economic aspects of the litigation pending. The APL Order, therefore, terminated upon entry of the decree and the only matter to be considered by the court is the amount of reduction in APL from the date the petition for reduction was filed to the date the Order terminated. This will establish the amount the appellant was required to pay during that period and is an essential element in fixing arrears and the amount of the installments necessary for that purpose. While appellee may have been entitled to an award of alimony, that issue is not before us and it appears alimony is not awardable at this time unless the trial court erroneously believed it was entering a permanent alimony award when it modified the APL award. Anticipating the possibility of alimony, however, and since a remand is necessary so that the trial court may properly determine the proper arrearages appellant owes appellee up until the time the divorce decree was entered, we will briefly discuss the trial court’s analysis of the parties’ respective economic positions.

Payment on arrears must be adjusted so as not to be confiscatory and must be within appellant’s ability to pay. As previously stated, appellant has retired and his income was significantly reduced. On remand the trial court must take this into account in determining the reduction in the amount of arrearages appellant owes to appellee. “APL focuses on the ability of the individual who receives the APL during the course of the litigation to defend her/himself, and the only issue is whether the amount is reasonable for that purpose, which turns on the economic resources available to the spouse.” DeMasi, supra, 408 Pa.Super. at 421-22, 597 A.2d at 105. Concerning the retirement issue, the trial court stated as follows:

The Matters Complained of in Appeal state it was error to find that Plaintiffs earning capacity is such as to enable him to pay the Order when he is of retirement age and is semi-retired. We are not aware of any Appellate Court cases in the Commonwealth that hold that one reaching retirement age may voluntarily reduce his or her earnings and by reason of so doing use that as basis for reducing an alimony or support Order.

(Slip Op. at 7.) We find the trial court’s analysis is unsupportable and unreasonable. A court may not compel a person of retirement age, who has retired and taken supplementary work, to increase his earnings to provide a better lifestyle for his divorced spouse who is also receiving social security and, according to appellant, a small pension. According to the trial court’s reasoning it appears the wife is permitted to retire but the husband may not.

Appellant also contends the court erred in setting APL of $110 per week when appellee provided no testimony as to her needs at the August 1, 1991 hearing and there was evidence, at least as to housing, her situation had changed. We agree. Before a revised Order as to the APL arrearages is entered and before an alimony Order (if permissible) is set, it is necessary for testimony as to her economic circumstances to be obtained from appellee. It is only after a full and complete hearing that the court will be able to enter Orders effectuating the overriding goal of achieving economic justice between the parties.

Case remanded for proceedings consistent with this Opinion.

Jurisdiction relinquished.

      . Appellee has failed to file a brief in this matter.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    615 A.2d 33
    Patricia J. TREMBACH, Appellee, v. John P. TREMBACH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 18, 1992.
    Filed Aug. 7, 1992.
    Reargument Nunc Pro Tunc Denied Oct. 2, 1992.

      Arthur M. Wilson, Washington, for appellant.
    Phillip J. Binotto, Jr., Washington, for appellee.
    Before OLSZEWSKI, JOHNSON and CERCONE, JJ.
   OLSZEWSKI, Judge:

This is an appeal from the order of the Court of Common Pleas of Washington County dated May 29,1991, which denied exceptions to the court’s equitable distribution. This case is before this Court on a second appeal after remand. For the reasons which follow, we reverse.

The parties to this divorce action were married in 1970 and separated in 1986. The divorce was bifurcated from equitable distribution, and a divorce decree was entered in 1989. The issues raised in this appeal surround equitable distribution. Equitable distribution was heard by a master, and exceptions were filed with the court of common pleas. Upon the denial of the exceptions, John P. Trembach filed his first appeal to this Court. That appeal resulted in a remand to the court of common pleas to determine the value of two pensions and to establish a ratio for the equitable distribution. See Order and Memorandum Opinion, dated May 9, 1990, Del Sole, Johnson and Ford Elliott, JJ. On remand, the court of common pleas carried out an evidentiary hearing and entered a second order establishing an equitable distribution. See Opinion and Order, dated December 26, 1990, Terputac, J. Exceptions were filed with the court of common pleas. Upon denial of the exceptions to the trial court’s second order, John P. Trembach filed this appeal.

Initially appellant argues that the court of common pleas erred in addressing whether any rental obligation was due on the marital residence, because this issue was not properly before the court of common pleas on remand. Specifically, appellant has argued that appellee never raised the issue of rental value when taking exceptions to the master’s report and, therefore, any issue regarding rental value was waived. We do not agree. The issue here is whether the court of common pleas exceeded its authority on remand. We find that the court of common pleas properly addressed the issue of rental value on remand.

To make a decision regarding the proper scope of the trial court’s powers on remand, we initially look to the rules of appellate procedure.

RULE 2591 PROCEEDINGS ON REMAND
(a) General Rule. On remand of the record the court or other government unit below shall proceed in accordance with the judgment or other order of the appellate court and, except as otherwise provided in such order, Rule 1701(a) (effect of appeals generally) shall no longer be applicable to the matter.

Under Rule 2591(a) the question concerns the effect of this Court’s order and memorandum in the first appeal. In order to determine the effect of this Court’s order, we must look to the language of our memorandum decision in the first appeal. Our prior memorandum provided in pertinent part:

In light of the fact that a procedure for valuing defined benefit and defined contribution plans exists, we conclude that the trial court would be best advised to recalculate the value of both parties’ pension plans in accordance with the proper method of valuation. We note that the court did not express an equitable distribution ratio on the record. Based upon the foregoing, we vacate the trial court’s order of equitable distribution and remand this case for further consideration consistent with this opinion.
Order reversed. Case remanded.

Memorandum Opinion, dated May 9, 1990, Del Sole, Johnson and Ford Elliott, JJ., at 8.

The prior order of this Court required that the lower court not only value the pension plans, but also determine a ratio for the equitable distribution. In this regard we find it relevant that although the master’s report is entitled to great weight, it is the responsibility of the court to make the final equitable distribution. Morschhauser v. Morschhauser, 357 Pa.Super. 339, 516 A.2d 10 (1986). Further, the court of common pleas is entitled to deviate from the recommendation of the master regardless of whether an issue was raised by the parties in exceptions. Id. We find that it was within the power of the trial court to consider rental value in order to determine the proper ratio for equitable distribution on remand as directed by this Court. Further, regardless of whether the issue was raised in exceptions, the trial court had the power to examine this issue.

An additional difficulty in this case is that there was a final order entered. Pa.R.Civ.P. 1920.55(a) provides that matters not covered by exceptions are deemed waived, unless prior to the filing of the final decree, leave is granted to file further exceptions. The question with which we are presented is what is the effect of this rule where the court’s final order has been vacated. Once the final order was vacated, there was no final order on which to base the operation of the rule. We find that once the final order was vacated, there was the opportunity to file a request for leave to file additional exceptions. In this case there was no direct request for leave to file additional exceptions; rather, appellee filed a petition for the fair rental value of the former marital residence. While we do not condone appellee’s failure to specifically request leave to file additional exceptions, we find that the trial court implicitly granted leave to file additional exceptions by considering and granting relief based upon the petitions.

We find that the issue of rental value was properly before the trial court. We will therefore address the substantive question raised in this appeal.

Appellant’s single substantive issue in this appeal is whether the trial court properly determined the amount of rental value due. When reviewing the actions of the lower court in a divorce action, we are limited to a determination as to whether there was an abuse of discretion. Wayda v. Wayda, 395 Pa.Super. 94, 576 A.2d 1060 (1990). Although the master’s report is entitled to great weight, the final responsibility of making the distribution rests with the court. Our review is thus based on the court’s distribution of property. Morschhauser v. Morschhauser, 357 Pa.Super. 339, 516 A.2d 10 (1986). See also Sutliff v. Sutliff, 361 Pa.Super. 504, 522 A.2d 1144 (1987), rev’d on other grounds, 518 Pa. 378, 543 A.2d 534 (1988).

We do not evaluate the propriety of the distribution order upon our agreement with the courts actions nor do we find a basis for reversal in the court’s application of a single factor. Rather, we look at the distribution as a whole, in light of the court’s overall application of the 401(d) factors. If we fail to find an abuse of discretion, the [o]rder must stand.

Sutliff, 361 Pa.Super. at 521, 522 A.2d at 1152 (citing Sergi v. Sergi, 351 Pa.Super. 588, 506 A.2d 928 (1986); and Semasek v. Semasek, 331 Pa.Super. 1, 479 A.2d 1047 (1984)).

The factors to be considered in making an equitable distribution are set forth in 23 Pa.C.S.A. § 3502(a)(l)-(ll). Our review of the lower court’s distribution is necessarily limited to a determination of whether in light of the entire distribution, considering all the factors set forth by the legislature, an abuse of discretion occurred. In this case, the question is whether the trial court abused its discretion when calculating the rental value due. Because we find that the trial court did not properly calculate the rental value due, we reverse and remand.

The court of common pleas determined that appellee was entitled to rental value of $325.00 per month for the period May 1986 through December 1990, or a total of $18,-525.00. The court based this calculation on the fact that the parties stipulated to a fair rental value of $450.00 before the master. The court then deducted one-half of the expenses paid by appellant to reach the rental credit due. The question as raised by appellant is whether appellee was entitled to a credit for the entire rental value or whether appellee was only entitled to a credit for one-half of the rental value. Further, appellant has argued that the trial court granted rental value for too great a period of time.

The caselaw in Pennsylvania has established that it is within the discretion of the trial court to grant rental value as a part of equitable distribution. Hutnik v. Hutnik, 369 Pa.Super. 263, 535 A.2d 151 (1987); Gee v. Gee, 314 Pa.Super. 31, 460 A.2d 358 (1983). The award of rental value is within the sound discretion of the trial court. Hutnik. The basis of the award of rental value is that the party out of possession of jointly owned property (generally the party that has moved out of the former marital residence) is entitled to compensation for her/his interest in the property. Gee, 314 Pa.Super. at 35, 460 A.2d at 360 n. 2. In Gee and Hutnik this Court found that it was within the discretion of the trial court to award one-half of the fair rental value to the dispossessed party.

The question with which we are presented is how the court should calculate the rental credit. A review of Gee and Hutnik reveals the proper procedure the court should follow. First, the general rule is that the dispossessed party is entitled to a credit for the fair rental value of jointly held marital property against a party in possession of that property, provided there are no equitable defenses to the credit. Hutnik, 369 Pa.Super. at 269, 535 A.2d at 154; Gee, 314 Pa.Super. at 34, 460 A.2d at 360. Second, the rental credit is based upon, and therefore limited by, the extent of the dispossessed party’s interest in the property. Gee, 314 Pa.Super. at 35, 460 A.2d at 360 n. 2. Generally, in regard to the marital home, the parties’ have an equal one-half interest in the marital property. It follows, therefore, that in cases involving the marital home that the dispossessed party will be entitled to a credit for one-half of the fair rental value of the marital home. Third, the rental value is limited to the period of time during which a party is dispossessed and the other party is in actual or constructive possession of the property. See id. Fourth, the party in possession is entitled to a credit against the rental value for payments made to maintain the property on behalf of the dispossessed spouse. Hutnik, 369 Pa.Super. at 269, 535 A.2d at 154. Generally, in regard to the former marital residence, payments made on behalf of the dispossessed spouse will be one-half of the expenses including debt service on the property. This is so because equity places a presumption upon the dispossessed spouse of responsibility for expenses to the extent of her/his ownership interest which is generally one-half. Finally, we note that whether the rental credit is due and the amount thereof is within the sound discretion of the court of common pleas.

In this case it is clear that the court of common pleas abused its discretion by allowing appellee, the dispossessed party, a credit for Ithe entire rental value of the former marital residence. The credit is simply not proportionate to appellee’s interest in the former marital residence. The right to the credit is based upon compensating a dispossessed party for her/his interest in the property. Clearly, appellee does not have a one hundred percent interest in the marital residence. Appellee was entitled only to a credit up to the extent of her interest in the property.

Appellant has further argued that the trial court granted appellee a credit for rental value during a period for which she was not entitled. Appellant has argued that appellee never requested a credit for the entire time she was dispossessed, but rather only requested a credit for a short period after September 1990. As was stated above, it is within the discretion of the trial court in reaching an equitable distribution to address issues regardless of whether those issues where raised in exceptions. Morschhauser. We believe that in light of our decision above, the trial court should address this issue on remand. Our review of the record indicates that under the analysis set forth above, the time period for which the trial court granted the rental credit was proper. It is possible, although unlikely, that appellee is not interested in a rental credit for the entire period during which she was dispossessed. We believe this issue should be addressed by the trial court on remand.

For the reasons set forth above, the order of the court of common pleas is reversed and this case is remanded for further proceedings on the limited issue of the rental credit for the former marital residence. The court of common pleas is directed to carry out what limited proceedings it deems necessary to settle this issue and to enter an appropriate order.

Reversed and remanded. Jurisdiction relinquished.

JOHNSON, J., concurs in the result.

      . We note here that there existed only an opportunity to request leave to file additional exceptions, not an opportunity to file exceptions as of right.

      . We note here that there is an indication in the caselaw that the trial court is limited to the evidence presented to the master. See Cunningham v. Cunningham, 378 Pa.Super. 280, 548 A.2d 611 (1988). We have reviewed the transcript of the proceedings before the master and find that sufficient evidence was presented to the master to allow a decision on the issue of rental value. N.T., master’s hearing, dated July 2, 1987. The trial court’s decision on rental value did not require evidence beyond that presented at the master’s hearing and, therefore, there is no issue regarding the trial court’s having exceeded the evidence presented at the master's hearing.

      . Former 23 P.S. § 401(d) has been codified at 23 Pa.C.S.A. § 3502(a).

      . We note that we have reviewed the testimony from the master’s hearings and have not found a stipulation to a rental value of $450.00. We have found a stipulation to a rental value between $400.00 and $425.00 in the notes of testimony from July 2, 1987. The court of common pleas has not referred us to the place in the record where the stipulation occurred. In light of our decision, the accuracy of the court of common pleas in this regard is irrelevant. We make mention of this here only to bring it to the attention of the court of common pleas on remand.

      . We note here that the trial court properly offset the rental credit by one-half of the expenses paid by appellant. The court properly offset the expenses according to the respective interests of the parties.


author: POPOVICH, Judge:

text:
    615 A.2d 38
    In re ESTATE OF Miriam R. LeVIN. Appeal of Joseph TERCHA, the Foundation for Animals and Culture, and the Unity School for Christianity.
    Superior Court of Pennsylvania.
    Argued May 27, 1992.
    Filed Sept. 3, 1992.
    Reargument Denied Nov. 13, 1992.

      Bernard M. Berman, Stephen M. Asbel, Media, on brief; Clifford B. Cohn, Philadelphia, on oral argument, for appellants.
    Kevin Holleran, West Chester, for Meridian Trust Co., participating party.
    Before CIRILLO, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This case involves an appeal from the September 5, 1991, order of the Court of Common Pleas of Chester County, Orphans’ Court Division, entering a nonsuit in favor of the Meridian Bank & Trust Company (“Meridian”) and against Joseph Tercha, The Foundation For Animals and Culture, and The Unity School For Christianity, appellants. We reverse.

The standard of review has been articulated in Estate of Dunlap, 471 Pa. 303, 370 A.2d 314, 315 (1977) (Footnote omitted):

The power of the orphans’ court to enter a nonsuit derives from section 779 of the Probate, Estates and Fiduciaries Code. Section 779 provides, in pertinent part:
“(a) In general. — The orphans’ court division may enter a nonsuit under the same circumstances, subject to review in the same manner and with the same effect as in an action at law.
(b) Will contest. — A nonsuit may be entered against a contestant in a will contest whenever the contestant has the burden of overcoming the presumption of validity arising from due proof of execution as required by law and the contestant has failed to satisfy that burden.” In actions at law, a nonsuit may be granted at the close of
plaintiffs case only when it is clear that plaintiff has presented insufficient evidence to maintain the action. See Esposito v. Dairymen’s League Cooperative Assoc’n, Inc., 236 Pa.Super. 401, 344 A.2d 505 (1975). In ruling on a nonsuit, the trial court views the evidence in the light most favorable to plaintiff and gives plaintiff the benefit of all favorable evidence and all reasonable inferences therefrom. E.g., Tolbert v. Gillette, 438 Pa. 63, 260 A.2d 463 (1970); Flagiello v. Crilly, 409 Pa. 389, 187 A.2d 289 (1963).

The facts, viewed in a light most favorable to the appellants/contestants, reveal that in the fall of 1984, John Tercha’s wife, Naomi, met Ms. LeVin and the two became “very dear Mends”. The two regularly ate lunch together, went shopping and, for one year before Ms. LeVin’s death, Ms. Tercha phoned every morning to inquire how she had slept and if she needed anything. Eventually, the Terchas considered Ms. LeVin “a member of the family.”

In this same vein, Ms. LeVin discussed the disposition of her property with Mr. Tercha and asked him to be the executor of her will. When he consented, Ms. LeVin was “very happy”. Asked “about getting a lawyer”, Mr. Tercha offered the name of a Mend. Ms. LeVin met with this attorney and the by-product was a will dated July 29, 1987, in which Mr. Tercha was named co-executor and trustee. Also, during this same period, Ms. LeVin executed a power-of-attorney in favor of Mr. Tercha.

While in the hospital in March of 1988, Ms. LeVin’s health began to deteriorate. For example, she discontinued her “normal” routine, e.g., reading her mail and handling her financial matters, because of her weakened medical condition. Consequently, after the Terchas decided to travel to Florida in April of 1988, they suggested that a Ms. Tulumello (a longtime friend of Ms. LeVin and a manager for Meridian Bank & Trust Company) handle the day-to-day payment of Ms. LeVin’s bills. This was done. Also, arrangements were made for Ms. LeVin to have around-the-clock nursing care.

Even with her departure, Ms. Tercha would telephone every morning and Ms. LeVin was “very happy” to speak with her, even though she could only talk for 3-5 minutes. During her third week in Florida, however, Ms. Tercha could not get access to Ms. LeVin. Every time she phoned, Tercha was told Ms. LeVin was “resting” or “too weak to come to the phone”. On one occasion, Ms. Tercha recalled hearing Ms. LeVin’s voice in the background saying: “give me the phone” and crying while telling Ms. Tercha: “They’ve got me so confused.”

When the Terchas returned home in the latter part of April, they learned that Ms. LeVin had died on the 29th of the month and that Ms. LeVin had executed a new will dated April 25, 1988. A will contest was instituted thereafter challenging the validity of the April 25, 1988, will.

Meridian, the proponent of the last will and testament of the decedent, established the formalities of execution of the April 25, 1988, instrument over the objection of the attorneys for Tercha and the other contestants — American Antivivisection Society and the Foundation of Culture & Animals, the former being named trustee and the latter two listed as legatees in an earlier will dated July 29, 1987. No such provisions were carried over into the April 25,1988, will. This created a presumption of lack of undue influence. Id. Thereafter, the appellants had the burden of establishing by clear and convincing evidence that (1) the will was executed when the testatrix was of a weakened intellect, and (2) that a person (or entity) in a confidential relationship with the testatrix (3) received a substantial benefit under the will. See In re Estate of Clark, 461 Pa. 52, 334 A.2d 628, 632 (1975).

The Orphans’ Court ruled that the appellants, although establishing the presence of a weakened intellect and confidential relationship, failed to make out a prima facie case of undue influence by not proving that Meridian received a substantial benefit under the will. See In re Estate of Simpson, 407 Pa.Super. 1, 595 A.2d 94, 98 (1991) (Before burden of proof shifts from contestant back to proponent of will, the contestant must establish all three parts of the test outlined in Clark, supra).

After careful review, we hold that the evidence in the record, when viewed against the backdrop of the applicable law, does not support the findings of the Orphans’ Court. See In re Estate of Button, 459 Pa. 234, 328 A.2d 480, 483 (1974).

Neither party disputes the Orphans’ Court’s findings that the testatrix possessed a weakened intellect and had a confidential relationship with Meridian’s agents/employees at the time the April 25, 1988, will was executed. Given that the record is supportive of such findings, and the parties are not raising either issue on appeal, we dispense with the need to discuss them. Thus, we need not recount the facts upon which they are premised, and we merely note our perusal of the testimony proffered on these points and recounted supra, and find each to be consistent with the Orphans’ Court’s determination in regard thereto.

However, the same result does not obtain with regard to the absence of the “substantial benefit” criterion, reaffirmed in Clark, supra, whose existence is a condition precedent to proving, prima facie, undue influence sufficient to shift the burden of non-persuasion back to the proponent to produce clear and convincing evidence demonstrating affirmatively the absence of undue influence. See Dunlap, supra; Clark, supra.

The dearth of cases in this Commonwealth has necessitated a search of the decisions on point by our sister-jurisdictions on the issue of whether Meridian can be said to have received a substantial benefit under the testatrix’s will so as to convert it into a beneficiary and tainting its continuing retention of the position of trustee of decedent’s assets, which have been valued at approximately 1.5 million dollars.

The first aspect of the appeal is to decide what constitutes a “substantial” benefit to trigger Clark’s tripartite test of undue influence. In this regard, our Supreme Court has spoken on the subject in Adams’ Estate, 220 Pa. 531, 69 A. 989 (1908).

Adams’ Estate deals with a will contest in which the admission of a will to probate was objected to on the ground of undue influence. The issue on appeal was whether the executor, who was also a trustee under the will, had a “substantial” interest so much as to shift the burden of proof upon the proponent to prove that the testatrix was cognizant of the disposition made of her property by will and the trust relation created in favor of the executor/trustee and the benefits inuring to him.

The Court in Adams’ Estate found that a presumption of undue influence arose to shift the burden of non-persuasion to the executor/trustee because he had obtained a “substantial” interest under the will executed by a testatrix who was mentally and physically impaired and he was a confidential adviser of the decedent. In the course of reversing the decree in favor of the proponent the Court wrote:

... it is argued with much force that, in order to make the rule operative, the confidential adviser must have benefited to a considerable extent or in a substantial manner. In other words, in order to shift the burden of proof, the benefit derived from, the will must be a large, or considerable, or substantial interest. It is true in some of our cases such expressions have been used, and in Linton’s Appeal, 104 Pa. 228, it was held that the appointment as executor with the right to receive the usual commissions did not constitute such an interest. In no case, however, has the court undertaken to exactly define the character of benefit or the extent of interest the confidential adviser must receive in order to shift the burden of proof, and, indeed, it may be said no hard and fast rule can be laid down. Something must depend upon the circumstances of each particular case. What the law requires is that a person acting as confidential adviser to a testator, bodily infirm and mentally weak, must act in the utmost good faith, and if he is benefited in a legal sense by the will procured by him, he must assume the burden of showing deliberation, volition, and understanding on the part of the maker of the will. The benefit derived by Dr. Croskey, the confidential adviser in the present case, under the will was first, an executor-ship; second, a trusteeship by means of which he has the control or partial control, of the entire estate, amounting to perhaps $75,000, for a period of years; and, third, a possible residuary interest in the whole estate. Certainly all of those things gave him such a substantial interest as to bring him within the operation of the rule which provides that where a testator, although possessed of testamentary capacity is aged, infirm bodily, with mental faculties impaired, as against a confidential adviser who is a beneficiary under the will, there is a presumption of fact that undue influence was brought to bear on the mind of the testator, and the burden is on the beneficiary to rebut the presumption.

220 Pa. at 534, 69 A. at 990 (Citations omitted). From Adams’ Estate we learn that what is a “substantial benefit” to cause the burden to shift is a case-by-case process. More relevant is the reference to a finding of “substantial” benefit where a proponent holds the position of executor and trustee, has control over the entire estate and has a possible residuary interest in the whole estate.

Further, we find the remarks of the Supreme Court of Alabama in Zeigler v. Coffin, 219 Ala. 586, 123 So. 22 (1929) instructive in analyzing a will contest concerning a confidential relationship between a scrivener/executor/trustee and the testator.

In Zeigler, the proponent/lawyer drafted two wills for the testator, the last of which created a trust with the proponent as trustee of 280 acres of land on which rested a dairy, sawmill, ore plant, a farm, and personal property. The instrument gave the proponent:

... full and supreme power and authority over such property during the life of the widow, to sell and convey, invest and reinvest, pay expenses, account to no court, with the right, but no duty to pay the profits realized to the widow during her life, then to terminate the trust. He could exercise his own judgment as to when he paid her anything. He was relieved of bond.

219 Ala. at 588, 123 So. at 23. These factors were considered relevant in placing the burden on the proponent to disprove undue influence. The criteria looked to in shifting the burden to the proponent in a trust situation were articulated as follows:

The result is influenced by the nature of the trust, the amount involved, the amount of fees which the trustee will receive, whether he is the sole trustee, its probable duration, his discretionary powers, and all the details of the trust, and is a question of fact. The creation of a trust, with the scrivener as trustee, alone, and not influenced by the facts above mentioned, would not constitute the trustee such a beneficiary. There must be some substantial personal benefit to the trustee.
The activity upon the part of the beneficiary in order to cast the burden of proof upon him must be more than activity and interest referable solely to a compliance with or obedience to the free agency and voluntary instructions or directions of the testator.

Id. (Emphasis added; citations omitted). In light of the facts recounted, the Court in Zeigler found that the proponent, despite the fact that he was only receiving compensation for his services as a trustee, was the recipient of “collateral benefits” which would naturally flow from his “free and complete powers and discretion” so as to label him a beneficiary under the will, and, thus, bring him within the rule fixing the burden of proof on him to disprove undue influence. Accord Allen v. Estate of Dutton, 394 So.2d 132 (Fla.App.1981) (Scrivener/executor/trustee’s absolute discretion to distribute $427,-377.00 to charitable beneficiaries endowed proponent with sufficient “collateral benefit” to render him a “substantial beneficiary” under decedent’s will to raise a presumption of undue influence); In re Estate of Nelson, 232 So.2d 222 (Fla.App.1970); see also Zinnser v. Gregory, 77 So.2d 611 (Fla.1955).

Instantly, consistent with the standard set forth in Zeigler, supra, we find that Meridian was named the executor and sole trustee under Levin’s will. Although Meridian is entitled to compensation for its services as a trustee/executor in accordance with its “Standard Schedule of Charges”, we find, as did the Courts in Zeigler and Dutton, that Meridian is the object of “substantial collateral benefits” under the will so as to convert it into a beneficiary requiring it to deflect the prima facie proof of undue influence. To-wit, the will, executed in the presence of and following a discussion with Meridian’s personnel, vests Meridian with extensive powers over the distribution and continuation of the trust in perpetuity which smacks of undue influence.

For example, testatrix gave specific bequests to Hagley Museum (choice of antiques in home), Brandywine River Museum (choice of paintings in home), Joseph and Naomi Tercha (one piece of jewelry to be determined by Edith Tulumello), James Lane (1963 Cadillac) and Katie Tribe (new Cadillac). The legatees named and the recipients of $5,000.00 each consisted of five identified charities. The remaining portion of the decedent’s 1.5 million dollar estate was to be disposed of by the trustee, Meridian, as “it shall determine” and to whom “it shall select”, giving preference, however, to four named organizations looked with favor upon by the testatrix. See Will, ITEM X, Paragraph A.

The trustee was authorized, without court order, to revise the terms of the trust, if “such action w[ould] best serve [testatrix’s] purpose”. Id. at Paragraph C. Trustee had the authority to invest, sell or dispose of trust assets to realize income or gain. Id. at Paragraph D. Interestingly, Meridian had the power to invest property without restriction. This included purchasing common stock (up to 100%) in Meridian-titled investment entities, id., ITEM XI, Paragraph A, and to do all other acts in its judgment necessary or desirable for the proper management, investment and distribution of testatrix’s property. Id. at Paragraph K.

Lastly, the trustee had the “absolute discretion” to determine when and if the trust became “impracticable to administer”. If such did occur, the trustee, without a formal court accounting, could distribute the principal to organizations entitled to the income, provided only that the group used the emoluments for purposes set forth in the will, i.e., exclusively for the humane treatment of animals. No earnings could inure to the benefit of any private person.

Since the will proscribed the distribution to private individuals and bequeathed a fix amount to five charities, the balance of the trust principal and income would be left to the discretion of the trustee to distribute under Sections 170(c) and 2055 of the Internal Revenue Code — meeting federal criteria for charitable contributions — or shown a preference by the decedent (of which four were listed), but it being reserved to the trustee to “determine and select” which would benefit.

Meridian clearly had a fiduciary or confidential relationship with LeVin, it having had bank personnel present on the premises at the time the will was executed, one of whom was a confidante of the decedent — Ms. Tulumello. Other bank officials were present at the invitation of Tulumello, acting for LeVin.

We would note that merely being named as executor or trustee in another’s will would not be sufficient, in and of itself, to make Meridian a “substantial beneficiary”. See Dutton, supra; Zinnser, supra. Nor would the receipt of commissions for services rendered the estate as an executor or trustee tip the scales in favor of holding one a “substantial beneficiary” satisfying the last prong of the three-part test of undue influence under Clark, supra. See Wetzel v. Edwards, 340 Pa. 121, 134, 16 A.2d 441 (1940); Linton’s Appeal, 104 Pa. 228, 237-38 (1883); Griffith Estate, 63 Montgomery Cty.L.R. 275, 288-89 (1947).

However, given Meridian’s “absolute discretion” to terminate the trust and distribute the assets to whomever it selected, provided they were humane to animals and conformed to various provisions of the Internal Revenue Code (the same conditions control distribution of income during the life of the trust), we view such distributive powers as embracing the “bulk” of LeVin’s estate. And, when coupled with the fees paid, the powers reserved to Meridian endowed it with “collateral benefits” bringing it within the sphere of a “substantial beneficiary” under the decedent’s April 1988 will. See Adams’ Estate, supra; Dutton, supra; Nelson, supra; Zeigler, supra. To the same effect, the naming of Meridian as executor and trustee of a 1.5 million dollar estate without bond only adds to our finding of prima facie evidence of undue influence.

Accordingly, given the fact that the contestants established the presence of undue influence on the decedent at the time she executed the April 1988 will, it is incumbent upon the appellee-Meridian to demonstrate the absence of undue influence by clear and convincing evidence. Button, supra; Williams v. McCarroll, 374 Pa. 281, 97 A.2d 14 (1953); More v. People’s Bank and Trust Co., 297 Pa. 252, 146 A. 896 (1929); In re Phillips’ Estate, 244 Pa. 35, 90 A. 457 (1914); see also In re Miller’s Estate, 265 Pa. 315, 108 A. 616 (1919).

Because the Orphans’ Court’s ruling is at odds with our reading of the facts and applicable law on the issue at hand, we reverse and remand for proceedings where Meridian may prove by clear and convincing evidence the absence of undue influence. Whatever result obtains will dictate what course the parties will pursue, a subject which need not be delved into at this juncture of the appellate process.

Order reversed; jurisdiction relinquished.

      . Under the 1987 will, five charitable organizations were given bequests of $5,000 each, a home in Chester County was devised to the Anti-Vivisection Society and the Foundation For Culture and Animals (the former of which received $1,000 and real estate in 1987, while the latter received monetary contributions from Ms. LeVin, a life-time member of the organization), and the remainder of the estate was to be distributed after five years to seven ethnic and organizational groups favored by Ms. LeVin.
      With the execution of the April 25, 1988 will, the special devise of the home was excised, Tercha was replaced as executor/trustee and as attomey-in-fact by Meridian. Ms. Tulumello, Meridian’s bank manager, later renounced her role as co-trustee under the 1988 will, and three of the six charities named in the residuary estate of the 1987 will were removed. The remaining portion of the 1988 will disposed of the estate in a fashion similar to the 1987 will.

      . At trial, during the time that the April 25, 1988, will was prepared, the contestants’ medical expert opined that Ms. LeVin was suffering from chronic lymphocytic heart failure, leukemia and a low hemoglobin count. To counteract her maladies, Ms. LeVin was prescribed various drugs, all of which, according to the expert, lowered her ability to function physically and mentally. More specifically, the expert, based on a reasonable degree of medical certainty, was of the opinion that Ms. LeVin was suffering from a weakened intellect on the date the 1988 will was executed.
      The expert’s opinion was premised upon a review of the medical records and depositions of those individuals who had interacted with Ms. LeVin during the time the will was prepared. Further, the expert’s conclusion was consistent with the accounts of the Terchas, Gilbert M. Pratt (Ms. LeVin's gardener), Dorothy Reber (nurse’s aid) and Camilli Lownds (a neighbor), all of whom described Ms. LeVin as a strong-willed, independently-minded person who had a mistrust of lawyers and banks because of an unfavorable financial experience. She did not want the same fate to befall her wealth.
      At trial, it was disclosed that Ms. Tulumello, a bank manager for Meridian and close friend of the decedent from 1984 until her death, convinced the decedent to open an account with Meridian and execute a power-of-attomey in its favor. Additionally, during the time the April 29, 1988, will was prepared, and through Ms. Tulumello, Meridian Asset Management came to Ms. LeVin’s home. The aftermath of which was the execution of the 1988 will prepared by an attorney who has since become employed by Meridian to handle the decedent’s trust.

      . To the appellants’ argument that the tripartite test listed in Clark, supra, is inconsistent with and superseded by a six-part test in Boyd v. Boyd, 66 Pa. 283 (1870), we find that these tests have been reconciled, "and the three-part test held to be all that must be satisfied to shift the burden of proof, in Estate of Clark [, supra].” See Estate of Younger, 314 Pa.Super. 480, 461 A.2d 259, 262 n. 3 (1983), overruled on other grounds, In re Estate of Pedrick, 505 Pa. 530, 482 A.2d 215 (1984).

      . Ms. Edith Tulumello relinquished her position as a named co-trustee in the decedent’s will. Also, we would note that Ms. Tulumello was an employee of Meridian and was present, along with another employee, when the decedent executed her will of April 25, 1988, the one under attack by the appellants.

      . On this point, the appellants wrote in their brief at page 11 (emphasis in original):
      The actual benefits to the Proponents under the contested will are not in dispute as there has been a stipulation. As Executor, Meridian will receive approximately $39,000.00 in base fees plus $4,500.00 annually. As Trustee, Meridian will receive at least $24,500.00 annually in perpetuity.

      Meridian Asset Management is to serve as Executor and Trustee under the will and in these roles, would receive both immediate and long term financial gain. By stipulation, Meridian’s fee schedules were introduced into evidence. For settling the Estate, Meridian receives 5 percent of the first $100,000.00, 4 percent of the next $200,000.00, 3 percent of the next $200,000.00 and 2 percent of the next $1.5 million. If the estate is assumed to be worth $1.5 million, then as Executor, Meridian will receive a fee of approximately $39,-000.00. In addition, Meridian receives 5 percent of the gross income during its handling of the estate. At the modest yield of 6 percent per year, Meridian would receive an additional $4,500.00 per year as Executor.
      In addition. Meridian is to be Trustee of a trust known as the Joseph Ruhe Foundation. The trust corpus comprises nearly all of the estate. Since the estate is quite probably worth over 1.5 million, it will be assumed arguendo that the trust corpus is 1.5 million. Meridian’s trust fees are as follows: $5.00 per $1000 on the first $500,000.00 payable quarterly, $3.00 per $1000.00 on the next $500,-000.00 payable quarterly, and $2.00 per $1000.00 on the next $1 million payable quarterly. Assuming the trust corpus is $1.5 million, Meridian would receive $5,000.00 per quarter or $20,000.00 per year in trust fees. In addition. Meridian is to receive 5 percent of the gross income. At the modest yield of 6 percent per year, Meridian would receive an additional $4,500.00. Thus, Meridian, as Trustee, will have legal ownership of virtually all of Miss LeVin’s $1.5 million estate forever and receive at least $24,500.00 per year in fees and charges on income.
      The cumulative effect of these fees, when viewed in conjunction with the "absolute discretion” power vested in Meridian under the trust, casts doubt over the absence of undue influence over Ms. LeVin.

      . Section 170 deals with charitable contributions and gifts, with subsection (c) paragraph (4) defining a charitable contribution or gift as one made for the prevention of cruelty to animals as an itemized deduction in calculating income taxes. 26 U.S.C.A. § 170(c)(4) (Supp.1992).
      Section 2055 applies to valuing an estate for tax purposes by allowing various deductions (gifts), one of which is a bequest or transfer to a trustee if used for the prevention of cruelty to animals. Id. at § 2055(a)(3) (1989). Thus, under the terms of the trust, Meridian would have to distribute trust income to organizations involved with animal care.


author:
BROSKY, Judge.
      ROWLEY, President Judge,

text:
    615 A.2d 45
    Isabel HOOVER and Forrest Hoover, Appellants, v. Louis W. WELSH, M.D. and Holy Redeemer Hospital.
    Superior Court of Pennsylvania.
    Argued June 17, 1992.
    Filed Sept. 8, 1992.
    Reargument Denied Nov. 13, 1992.

      John F.X. Fenerty, Philadelphia, for appellants.
    Medford J. Brown, III, Norristown, for appellees.
    Before ROWLEY, President Judge, and HUDOCK and BROSKY, JJ.
   BROSKY, Judge.

This appeal is taken from a pre-trial Order permitting counsel for appellee to interview ex parte a physician with whom appellant, Mrs. Hoover, had consulted. Appellants now challenge this Order on the basis that it violates the physician/patient privilege.

Appellee filed a Motion requesting the trial court to rule on the propriety of conducting ex parte communications with a Dr. Lowry. Appellant, Mrs. Hoover, consulted with this physician to discuss the viability of injections which would enable her voice to return to near normalcy after her vocal cord had been paralyzed as a result of surgery to remove a neck mass. After consideration of the Motion, the trial court entered the Order which is the subject of the instant appeal.

After the appeal to this court had been docketed, appellee filed a Motion to quash on the basis that the Order in question is an interlocutory one which is not appealable as of right under Pa.R.App.P. 311 or for which permission to appeal must be sought pursuant to Chapter Thirteen of the Pennsylvania Rules of Appellate Procedure. See Pa.R.App.P. 312. Appellants’ response and supplemental response to this Motion are, in essence, that immediate review is necessary because the right to confidentiality in the context of a physieian/patient relationship is now lost and that “[t]he ramifications of the lower court’s Order of April 8, 1991, are no longer conjectural. They are factually concrete.” However, neither party states that the nature of the Order in question is anything other than interlocutory. In their respective appellate Briefs, neither party addresses the appealability of the subject Order, nor does appellee in his Brief challenge the procedure by which the instant appeal was taken.

We reserved ruling on appellee’s Motion to Quash pending argument and disposition of this appeal, and we now quash. Our reasoning follows.

An interlocutory appeal of this nature may only be taken by the filing of a Petition for permission to appeal pursuant to Chapter Thirteen of the Rules of Appellate Procedure. Otherwise, the appeal will be quashed because the filing of the Petition is jurisdictional in nature. Casani v. Lincoln Bank, 292 Pa.Super. 90, 436 A.2d 1019 (1981); Pa. R.App.P. 312, 1311(b). Prior to the filing of such Petition, however, the trial court must certify the Order from which an appeal is sought to be taken pursuant to 42 Pa.C.S.A. § 702(b), which states:

(b) Interlocutory appeals by permission. — When a court or other government unit, in making an interlocutory order in a matter in which its final order would be within the jurisdiction of an appellate court, shall be of the opinion that such order involves a controlling question of law as to which there is substantial grounds for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter, it shall so state in such order. The appellate court may thereupon, in its discretion, permit an appeal to be taken from such interlocutory order.

We have held that such certification is a jurisdictional prerequisite to the filing of a Petition for permission to appeal pursuant to Chapter Thirteen of the Appellate Rules of Procedure. If the trial court’s Order from which the appeal is sought to be taken contains the requisite certification and if a Petition for permission to appeal is filed pursuant to Chapter Thirteen, only then may we exercise our discretion to permit the appeal. In re Handwriting Exemplar of Casale, 338 Pa.Super. 111, 487 A.2d 877 (1985), appeal granted, 508 Pa. 605, 499 A.2d 577 (1985), rev’d on other grounds, 512 Pa. 548, 517 A.2d 1260 (1986). See also G.R. Darlington, K.J. McKeon, D.R. Schuckers & K.W. Brown, 1 Pennsylvania Appellate Practice 293-94 (1986) [hereinafter, Darlington]. If a Petition for permission to appeal is filed without the requisite Section 702(b) statement or if no Petition for permission to appeal is filed with the appellate court, the appeal will be quashed, as we are without jurisdiction to exercise our discretion in this regard. Casani, supra; Handwriting Exemplar, supra; Augelletta v. Fox, 278 Pa.Super. 1, 419 A.2d 1325 (1980).

The Order of the trial court from which the instant appeal purports to be taken does not contain the requisite certification under 42 Pa.C.S.A. § 702(b), and appellants have not filed a Petition for permission to appeal to this court pursuant to Chapter Thirteen of the Appellate Rules. Absent both jurisdictional prerequisites, we are without authority to exercise our discretion in this regard.

Appeal quashed.,

ROWLEY, President Judge,

dissenting.

I respectfully dissent on the basis that the order at issue is immediately appealable under the collateral order exception to the final judgment rule. The collateral order exception was set forth by the United States Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and by the Pennsylvania Supreme Court in Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). Under Cohen and Pugar,

an order is considered final and appealable if (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost.

Pugar, 483 Pa. at 73, 394 A.2d at 545.

In the present case, appellants contend that the order permitting appellee to conduct ex parte interviews with appellant-wife’s physician and to call that physician as an expert witness at trial violates the physician-patient privilege. A similar issue was recently considered by a panel of this Court in Commonwealth v. Miller, 406 Pa.Super. 206, 593 A.2d 1308 (1991). In Miller, the trial court entered an order directing appellant, Community Resources of Fayette County, Inc. d/b/a the Women’s Resource Center of Fayette County (WRC), to provide to the court, for an in camera hearing, all records and information it possessed pertaining to the alleged victim of the sexual assault for which the defendant, Miller, was being prosecuted. WRC filed an appeal from this order, arguing that the records concerning the alleged victim were confidential. This Court concluded that, under the collateral order doctrine, the order was immediately appealable.

In reaching this conclusion, the Court first determined that the order involving WRC’s files was collateral to the underlying criminal action. In addition, the Court determined that the right involved, namely the alleged victim’s right to privacy and confidentiality in her relationship with WRC, was too important to be denied review. Finally, the Court concluded that “the claimed right of confidentiality and privacy will be lost irreparably since once the information is divulged, the privilege is lost.” Id., 406 Pa.Super. at 210, 593 A.2d at 1310. Because I find the issue in the present case concerning the confidential nature of the physician-patient privilege to be indistinguishable from the issue in Miller concerning the confidential nature of rape crisis center records, I would address the merits of the arguments appellants raise in this appeal.

      . Holy Redeemer Hospital is no longer a party to this litigation, having been dismissed therefrom by stipulation of the parties.

      . I:i its Motion to quash the instant appeal, appellee appends as Exhibits a letter from counsel for appellant which requests the trial court to certify the Order from which this appeal was improperly taken and a letter response from the court indicating its refusal.
      We note for the benefit of counsel, the trial court and the Bench and Bar, in general, that the proper procedure to be followed if the trial court’s Order does not include the requisite certification pursuant to Section 702(b) is to request the court to amend its Order accordingly. If the court refuses to amend its Order to include the requisite certification, it must do so by Order denying the amendment. The appellant must then challenge the Order denying the amendment by filing a Petition for review pursuant to Chapter Fifteen of the Rules of Appellate Procedure, rather than a Petition for Permission to appeal under Chapter Thirteen of the Appellate Rules. Silver v. Downs, 493 Pa. 50, 425 A.2d 359 (1981); Pennsylvania Turnpike Comm’n v. Jellig, 128 Pa.Commw. 171, 563 A.2d 202 (1989), appeal denied, 525 Pa. 606, 575 A.2d 571 (1990); 42 Pa.C.S.A. § 5574; Pa.R.App.P. 312; Comment following Pa.R.App.P. 1311. This Comment states in relevant part:
      Where the ... lower court refuses to amend its order to include the prescribed statement, a petition for review under Chapter 15 of the unappealable order of denial is the proper mode of determining whether the case is so egregious as to justify prerogative appellate correction of the exercise of discretion by the lower tribunal____
      Darlington, supra in text, gives further guidance where, as here, the trial court has not amended its otherwise unappealable Order:
      [ A] party filing a petition for review from an order denying certification should incorporate into the petition for review all of the components which are required to be included within a petition for permission to appeal. See Pa.R.A.P. 1312. In such a case, the best practice is to prepare a document which conforms in every respect to the requirements of a petition for permission to appeal, but label the document a ‘Petition For Review (from the order of the Court of Common Pleas of ._ County refusing to amend its order pursuant to Pa.R.A.P. 1311(b) [sic]’. In presenting the ‘statement of reasons,’ emphasis should be placed on why the trial court ... erred in failing to amend its order viz., that the underlying interlocutory order the petitioner seeks to appeal involves a ‘controlling question of law as to which there is a substantial ground for difference of opinion’ and ‘immediate appeal from the order may materially advance the ultimate termination of this matter.’ The petition also should stress that the refusal to amend was ‘egregious.’
      At 295-96.

      . See note 3 on page 107.

        Although appellants may have requested the trial court to amend its Order to include the Section 702(b) certification, albeit in the form of a letter, the court did not enter an Order denying same. A response in the form of a letter hardly qualifies as an Order of record. Neither appellants’ letter to the court nor the court’s response are part of the record certified to this court, and, therefore, we are unable to consider those documents in any event. Even if the trial court had issued an Order denying the amendment, appellants have failed to follow the proper procedure in requesting this court to entertain this appeal.
      3. We note in passing that the Order in question would not fit any of the categories of interlocutory orders appealable as of right under new Pa.R.App.P. 311 which became effective on July 6, 1992, and which applies to all appeals commenced after that date. See Order of May 6, 1992, No. 75 Appellate Rules Docket No. 1.


author: OLSZEWSKI, Judge.

text:
    615 A.2d 48
    COMMONWEALTH of Pennsylvania v. Jesse Franklin TRIMBLE, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 29, 1992.
    Filed Sept. 23, 1992.

      Daniel K. Taylor, Lancaster, for appellant.
    Henry S. Kenderdine, Jr., Dist. Atty., Lancaster, for Comm., appellee.
    Before CAVANAUGH, OLSZEWSKI and MONTGOMERY, JJ.
   OLSZEWSKI, Judge.

This is an appeal from the judgment of sentence of the Lancaster County Court of Common Pleas. Appellant, Jesse Franklin Trimble, was found guilty after a jury trial of rape, involuntary deviate sexual intercourse [hereinafter IDSI], incest and corruption of the morals of a minor. The convictions arose out of appellant’s sexual contact with his four-year-old daughter. We take up the case below.

Appellant has raised four issues for our consideration. First, appellant argues that the evidence presented at trial was insufficient to establish the penetration element of rape and IDSI. Second, appellant argues that the trial court erred in finding that the child victim was competent to testify at trial. Third, appellant argues that his trial counsel was ineffective for failing to present certain evidence at trial. Fourth, appellant raises a challenge to the discretionary aspects of his sentence.

Appellant’s first argument is that the evidence was insufficient to establish the element of penetration required for rape and IDSI. The standard of review in challenges to the sufficiency of the evidence is well settled.

In evaluating this contention [ie., the defendant’s challenge to the sufficiency of the evidence], we [must] view the evidence in the light most favorable to the Commonwealth and, drawing all reasonable inferences therefrom favorable to the Commonwealth, determine if there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt.

Commonwealth v. Carbone, 524 Pa. 551, 553-554, 574 A.2d 584, 585 (1990) (quoting Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984)). See also Commonwealth v. Thomas, 465 Pa. 442, 350 A.2d 847 (1976); Commonwealth v. D’Angelo, 401 Pa.Super. 409, 585 A.2d 525 (1991). With this as our standard of review, we find that appellant’s arguments surrounding the sufficiency of the evidence are without merit.

To evaluate appellant’s challenge to the sufficiency of the evidence, it is necessary to determine what will satisfy the penetration requirement for rape and IDSI. The requirement for rape is “penetration, however slight.” 18 Pa.C.S.A. § 3101 (Purdon’s supp.1992). It is clearly established that there is no requirement that penetration reach the vagina or “farther reaches of the female genitalia____” Commonwealth v. McIlvaine, 385 Pa.Super. 38, 47, 560 A.2d 155, 159 (1989) (quoting Commonwealth v. Ortiz, 311 Pa.Super. 190, 457 A.2d 559 (1983)) rev’d on other grounds 529 Pa. 381, 603 A.2d 1021 (1992). The penetration requirement for IDSI is also “penetration, however slight.” 18 Pa.C.S.A. § 3101 (Purdon’s supp.1992). It has been held that oral contact with the female genitalia is sufficient to support the penetration requirement for IDSI. Commonwealth v. Ziegler, 379 Pa.Super. 515, 550 A.2d 567 (1988). We must determine whether the evidence presented, viewed in a light most favorable to the Commonwealth as the verdict winner, was sufficient to establish the penetration requirement of rape and IDSI.

The court of common pleas is correct to direct this Court to Mcllvaine where a panel of this Court examined the sufficiency of the evidence of penetration.

“[ T]he uncorroborated testimony of the victim, if believed by the trier of fact, is sufficient to support a conviction, despite contrary evidence from defense witnesses.” ... Further, as to the doctor’s testimony that “[t]he medical examination revealed there had not been successful penetration,” N.T. at 216, the statute requires only penetration “however slight.”

McIlvaine, 385 Pa.Super. at 159, 560 A.2d at 159 (citations omitted). Applying the legal principles set forth above, we find that the evidence presented was sufficient to fulfill the penetration requirement of rape and IDSI.

The testimony of the child victim regarding the sexual contact involved is sufficient to support a finding of penetration for rape and IDSI. First, regarding rape, the child victim testified that appellant placed his “wiener” (referring to appellant’s penis) in her “tooter” (referring to her vaginal area). N.T. January 9, 1991, at 109-111. Viewing this evidence in a light most favorable to the Commonwealth as verdict winner and allowing all reasonable inferences therefrom, this evidence is sufficient to establish penetration however slight. Mcllvaine. Second, regarding IDSI, the victim testified that appellant made her suck his “wiener” (referring to appellant’s penis) and that the appellant licked her “tooter” (referring to her vaginal area). N.T. January 9, 1991, at 112. Viewing this evidence in a light most favorable to the Commonwealth as verdict winner and allowing all reasonable inferences therefrom, this evidence is sufficient to establish penetration however slight. Accordingly, we find that appellant’s argument that there was insufficient evidence of penetration to support rape and IDSI is without merit.

Appellant’s second argument is that the trial court erred in finding that the victim was competent to testify. In this case the victim was four years of age at the time of the crimes and five years of age at the time of trial. The relevant inquiry into the competency of a child to testify is well established in this Commonwealth.

There must be (1) such capacity to communicate, including as it does both an ability to understand questions and to frame and express intelligent answers, (2) mental capacity to observe the occurrence itself and the capacity of remembering what it is that she [he] is called to testify about and (3) a consciousness of the duty to speak the truth.

Rosche v. McCoy, 397 Pa. 615, 620-21, 156 A.2d 307, 310 (1959). The determination of a child’s competency to testify lies within the sound discretion of the trial court, and such a determination will not be reversed absent an abuse of discretion. Commonwealth v. Davis, 394 Pa.Super. 591, 576 A.2d 1005 (1990).

A witness is presumed competent to testify unless proven otherwise. When a proposed witness is under fourteen years of age, however, there must be a searching judicial inquiry as to mental capacity. This inquiry will probe the capacity to communicate, observe and remember, and a consciousness of the duty to speak the truth in proportion to the witness’s chronological immaturity.

Commonwealth v. Stohr, 361 Pa.Super. 293, 296, 522 A.2d 589, 591 (1987) (citation omitted). Our review is not limited to the trial court’s questioning of the child prior to the child’s testimony. It is appropriate for an appellate court to look not only to the trial court’s questioning of the child prior to the child testifying, but also to the child’s actual testimony. Commonwealth v. Payton, 258 Pa.Super. 140, 392 A.2d 723 (1978). Applying the well-settled rules of law stated above, we find no abuse of discretion in the trial court’s finding that the victim in this case was competent to testify.

The victim in this case was examined by the trial court and counsel prior to testifying in order to determine the victim’s competency to testify. N.T. January 9, 1991, at 72-96. After this examination, the trial court found that the victim was competent to testify. The victim then testified regarding the events underlying this case. N.T. January 9, 1991, at 99-132. We have reviewed all of the victim’s testimony and find that the victim was competent to testify in this case. Throughout her testimony, the victim demonstrated an ability to communicate. The victim understood the questions asked of her and formulated intelligent, responsive answers to the questions. Further, throughout her testimony, the victim demonstrated an ability to observe and remember relevant events. Finally, the victim’s testimony clearly reflects an appreciation of the duty to tell the truth. N.T. January 9,1991, at 72-80, 98-102. We find no abuse of discretion in the trial court’s finding that the victim was competent to testify.

Appellant’s third argument is that his trial counsel was ineffective in failing to call several witnesses and in failing to present certain evidence. The trial court found no merit to appellant’s allegations of ineffectiveness and denied appellant any relief without an evidentiary hearing.

Generally, it is presumed that counsel is competent, and appellant bears the burden of establishing otherwise. Commonwealth v. Williams, 524 Pa. 218, 570 A.2d 75 (1990). In order to prevail upon a claim of ineffective assistance of counsel, appellant must establish “that the course followed by trial counsel was unreasonable, that another meritorious course was available and that defendant [appellant] was prejudiced by counsel’s ineffectiveness.” Id. Further, the burden is upon appellant to set forth sufficient facts to allow a reviewing court to conclude that trial counsel was possibly ineffective before a case will be remanded for an evidentiary hearing. Commonwealth v. Petras, 368 Pa.Super. 372, 534 A.2d 483 (1987). An evidentiary hearing is not a discovery tool at the disposal of appellant for the purpose of developing testimony to support allegations of ineffective assistance of counsel. Id. “Moreover, if it is clear that: the allegation lacks arguable merit; an objectively reasonable basis designed to effectuate appellant’s interests existed for counsel’s actions or inactions; or appellant was not prejudiced by the alleged error by counsel, then an evidentiary hearing is unnecessary.” Id., 368 Pa.Super. at 377, 534 A.2d at 485. Applying these legal principles, we agree with the trial court.

Appellant claims that his trial counsel was ineffective for failing to present evidence that there was no carpet in his living room. Appellant claims that this evidence would have rebutted testimony of the victim that an incident occurred on the carpet in his living room. The trial court found that such evidence was irrelevant in light of the fact that the victim did not testify regarding any incident on the carpet in appellant’s living room. We agree. The victim did not testify at all regarding any occurrence on the carpet in appellant’s living room. Evidence regarding the lack of carpeting in appellant’s living room would have been irrelevant and inadmissible. Since counsel will not be deemed ineffective for failing to present inadmissible evidence, Commonwealth v. Hutchinson, 521 Pa. 482, 556 A.2d 370 (1989), appellant’s argument that his counsel was ineffective for failing to present evidence of the lack of carpet in his living room is without merit. The trial court, therefore, properly denied appellant relief without an evidentiary hearing.

Appellant next argues that his counsel was ineffective for failing to investigate and present the testimony of five different witnesses. Appellant has set forth the witnesses in an affidavit attached to his supplemental post-trial motion.

a. Jack Mohler, Parole and Probation Officer. Mr. Mohler would testify that I did not try to hide anything and that I called him on January 7,1991 the day after the issues arose.
b. Sue Danforth, Pennsylvania Legal Services. Ms. Danforth will testify that Carolyn Weber was trying to get [victim] from me and the resulting problems that I had. This would be used to put Carolyn’s credibility in issue inasmuch as it would show how she lies and manipulates people.
c. Karen Trimble, my wife. Karen will testify that she did not believe the incident and that she still allowed me to see my son Shane.
d. Candy Snyder, my sister. She saw [victim] on January 5,1990. Candy would testify that Carolyn Weber would keep the children from her (my sister) and from my side of the family.
e. Faye Kuhns, my sister-in-law. She babysat [victim] the morning after the alleged incident and would testify that [victim] did not give any indication as to abuse. Ms. Kuhns would also testify that [victim] had her pajamas on.

To succeed on a claim that counsel was ineffective for failing to investigate and present testimony of a witness appellant must establish the following:

1) the witness existed; 2) the witness was available; 3) counsel was informed of the existence of the witness or counsel should otherwise have known of him; 4) the witness was prepared to cooperate and testify for appellant at trial; and 5) the absence of the testimony prejudiced appellant so as to deny him a fair trial.

Petras, 368 Pa.Super. at 377, 534 A.2d at 485 (citations omitted). We will address each witness below.

Appellant claims that his trial counsel was ineffective for failing to present the testimony of appellant’s parole officer. Appellant states that his parole officer would have testified that he did not attempt to hide anything. We do not see how this testimony would be relevant. Further, the testimony would be greatly prejudicial in that it would place before the jury the fact that appellant had some prior involvement in the criminal justice system. Since the testimony was not relevant it would not have been admissible, and appellant was not prejudiced by trial counsel’s failure to present it. See Hutchinson. The trial court, therefore, properly denied appellant relief without an evidentiary hearing.

Appellant next claims that his trial counsel was ineffective for failing to introduce testimony of Sue Danforth of legal services. Appellant claims that Ms. Danforth would have testified that appellant and Carolyn Weber were battling over custody of the victim. In this regard some further background is required. Carolyn Weber is the victim’s aunt. At the time of the sexual assault(s), Carolyn Weber was the victim’s guardian. The victim reported the assaults to Carolyn Weber shortly after they occurred. Apparently, appellant believes that Ms. Danforth’s testimony could somehow impeach Carolyn Weber’s testimony regarding the victim’s reporting of the crime. Appellant merely makes a bald assertion that Ms. Danforth could testify that Carolyn Weber “lies and manipulates.” This is equivalent to stating that a witness could testify in a way that would impeach the testimony of another witness. This is insufficient to support appellant’s claim of ineffectiveness. Appellant has not averred sufficient facts to allow this Court to determine that this case should be remanded for an evidentiary hearing on this point. We will not remand this case to allow appellant use of an evidentiary hearing as a discovery tool. Petras. The trial court, therefore, properly denied appellant relief without an evidentiary hearing.

Appellant next claims that his trial counsel was ineffective for failing to present testimony of his wife, Karen Trimble. Appellant states that Karen Trimble would have testified that she did not believe the allegation of sexual abuse and that she continued to allow appellant to see their son. Appellant appears to argue that this testimony would be admissible as character evidence. This evidence, however, would not be admissible as character evidence.

Pennsylvania cases impose two restrictions on the accused’s evidence of good character. First, such evidence must be in the proper form. Second, it must pass a strict test of relevance to the matter on trial. Pennsylvania adheres to the requirement that character evidence be presented in the form of reputation evidence. The Federal Rules of Evidence admit opinion testimony as well as reputation testimony, but Pennsylvania has not adopted this change. Thus, a character witness must be able to testify to the accused’s reputation within a particular community. The witness may relate what he or she has heard about the accused, though it must appear that the witness moved in the same circles as the accused. However, the witness does not have to testify to having heard favorable comments about the accused. It is sufficient if the witness could have heard adverse comment but heard none.

L. Packel and A. Poulin, Pennsylvania Evidence Section 404.2 at page 144 (1987) (footnotes omitted). Examining the proposed testimony of appellant’s wife, we find that it would not be admissible as character evidence. Appellant’s wife would have testified, not that appellant had a good reputation in the community, but rather that she did not believe the accusations against appellant.

This is not character evidence in Pennsylvania. Even if we were to allow appellant wide latitude in the presentation of character evidence, this evidence would not be admissible. Appellant proposes that his wife would testify to her opinion of whether appellant committed the offenses. This is simply not probative of appellant’s character. Appellant’s counsel will not be deemed ineffective for failing to present inadmissible evidence. Hutchinson. Since this evidence would clearly not be admissible, the trial court properly denied appellant relief without an evidentiary hearing.

Appellant next claims that his trial counsel was ineffective for failing to present the testimony of his sister, Candy Snyder. Appellant states that his sister saw the child victim on January 5,1990 (the day before the sexual abuse occurred), and that she would have testified that Carolyn Weber (the child victim’s guardian at the time of the abuse) would keep the child victim from his side of the family. We find that appellant has failed to set forth sufficient details regarding the nature of this testimony to allow this Court to conclude that an evidentiary hearing is necessary. Petras. We will not remand to allow appellant the use of an evidentiary hearing as a discovery tool. Id. The trial court, therefore, properly denied appellant relief without an evidentiary hearing.

Appellant’s final challenge to his counsel’s effectiveness is that his counsel was ineffective for failing to present the testimony of his sister-in-law, Faye Kuhns. Appellant argues that Ms. Kuhns would testify that she baby-sat the child victim the day after the abuse occurred and that the victim did not indicate any abuse to her. As with the testimony above, appellant has failed to set forth sufficient details to allow this Court to conclude that an evidentiary hearing is necessary. Petras. We will not remand to allow appellant the use of an evidentiary hearing as a discovery tool. Id. The trial court, therefore, properly denied appellant relief without an evidentiary hearing.

Appellant’s fourth and final argument is a challenge to the discretionary aspects of his sentence. Pennsylvania Rule of Appellate Procedure 2119(f) requires an appellant who challenges the discretionary aspects of sentencing to set forth a concise statement of reasons relied upon for allowance of appeal. This statement must raise a substantial question as to the appropriateness of the sentence under the Sentencing Code, 42 Pa.C.S.A. §§ 9701-9781, before we may review the trial court’s exercise of discretion. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Our careful review of appellant’s 2119(f) statement indicates that appellant has set forth two challenges to the discretionary aspects of his sentence. We will initially address each challenge to determine if a substantial question has been presented.

Appellant first states that “the sentence on its face was unreasonable and excessive under the circumstances.” The terminology employed by appellant states an all-encompassing challenge to the trial court’s sentence. This is similar to language such as “overemphasizing” and “failing to adequately consider,” which this Court has found to be ineffective in stating a substantial question. Commonwealth v. Minott, 395 Pa.Super. 552, 577 A.2d 928 (1990); Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989) (en banc). Appellant’s statement in this regard does not set forth factual averments indicating that the fundamental norms which underlie the sentencing process have been compromised. Since appellant has failed to set forth a substantial question, we will not address appellant’s claim that the sentence was unreasonable and excessive under the circumstances.

Second, appellant states that the sentence appears to violate 42 Pa.C.S.A. § 9721(b) (Purdon’s 1982). Appellant has quoted § 9721(b) and stated that his sentence is in violation thereof. The portion of § 9721(b) relied upon by appellant states as follows:

In selecting from the alternatives set forth in subsection (a) the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and on the rehabilitative needs of the defendant.

42 Pa.C.S.A. § 9721(b) (Purdon’s 1982). Appellant then goes on to state that the trial court focused solely on the seriousness of the offense. We find that appellant has set forth a substantial question in stating that the trial court focused solely on the seriousness of the offense. Commonwealth v. Bauer, 413 Pa.Super. 220, 604 A.2d 1098 (1992); Commonwealth v. Rizzi, 402 Pa.Super. 335, 586 A.2d 1380 (1991) (en banc); Commonwealth v. Parrish, 340 Pa.Super. 528, 490 A.2d 905 (1985). Contra Commonwealth v. Bauer, (concurring and dissenting opinion by Olszewski, J.); Commonwealth v. Mobley, 399 Pa.Super. 108, 581 A.2d 949 (1990). After a careful review of the sentencing transcript, we find that the trial court did not focus solely upon the seriousness of the offense.

Section 9721(b) provides that the imposed sentence should be consistent not only with the rehabilitative needs of the defendant, but also with “the protection of the public” and “the gravity of the offense as it relates to the impact on the life of the victim and on the community----” The trial court’s statement of reasons for sentencing insightfully covers the factors set forth in § 9721(b). N.T. Sentencing, November 21, 1991. The trial court considered the seriousness of this offense when determining the sentence, and this is appropriate. Appellant, however, mischaracterizes the trial court’s consideration as taking into account only the seriousness of the offense. The trial court considered appellant’s extensive prior criminal record, appellant’s lack of any remorse throughout all of the proceedings, the impact of this crime on the victim, appellant’s abuse of his position of authority in relation to the victim, the age and education of appellant, and appellant’s ability to understand the seriousness of his acts. Further, the trial court considered the pre-sentence report, the mandatory minimum sentence of five years required for the convictions for rape and IDSI under 42 Pa.C.S.A. § 9718 (Purdon’s supp.1992) where the victim is under age sixteen, and the sentencing guidelines. Accordingly, we find that the trial court did not improperly focus solely upon the seriousness of the offenses.

Since we find that appellant’s arguments are all without merit, we affirm the judgment of sentence.

Judgment of sentence affirmed.