text:
    481 A.2d 879
    NESHAMINY WATER RESOURCES AUTHORITY v. DEL-AWARE UNLIMITED, INC., Albert Giordano, Colleen Wells, Abbie Hoffman, Marlene Scolie, John M. Krauss, Val Sigstedt, Raymond H. Vannoy, William J. Collins, Perna Argue, Hans Otto Reimann, Jr., Anita J. Griffith, Lyle Rickards, Jr., Fulton A. Grosse, Sharon M. Cannon, Richard H. McNutt, Marc Feinstein, John D. Irwin, Jr., Eugene R. Child, Edward Nasatka, Richard H. Torkelson, and all unnamed persons, firms and corporations acting in concert with Appeals of Joseph GRINROD, William Hines, III, Bruce Crooks, Bonnie McCormick, Mary Jane Olczak and Raphaelle Delvecchio.
    Superior Court of Pennsylvania.
    Argued Jan. 17, 1984.
    Filed Aug. 17, 1984.

      J. Michael Ruttle, Newton, for appellants.
    David L. Creskoff, Philadelphia, for appellee.
    Before ROWLEY, HESTER and ROBERTS, JJ.
   ROWLEY, Judge:

This is a direct appeal from the orders of July 15, 1983 and July 19, 1983, adjudging appellants in civil contempt of court for wilfully disregarding a preliminary injunction previously issued by the trial court on January 10, 1983. Upon a thorough review of the record in this case, we affirm the trial court’s adjudications of contempt.

Appellee, the Neshaminy Water Resources Authority (NWRA), is an independent Municipal Authority formed by the Commissioners of Bucks County. This dispute arose in response to the NWRA’s attempts to build a water pumping station on an isolated portion of property owned by NWRA, and located along the banks of the Delaware on Route 32 in the Village of Point Pleasant, Bucks County. The proposed purpose of the station was to draw water from the Delaware River in order to supply supplemental water for the use of residents in Bucks and Montgomery Counties, and to supply water to facilities of the Philadelphia Electric Company that would eventually be used at the Limerick Nuclear Power Plant. General construction work on the site was scheduled to begin on January 10, 1983. During the first week in January of 1983, demonstrations occurred at the site of the pumping station involving approximately 50 to 100 residents and other individuals who were opposed to the water diversion project. The demonstrations drew a great deal of public attention and resulted in blocking ingress to and egress from the construction site. Consequently, on January 6, 1983, the NWRA filed a complaint in equity requesting a preliminary injunction to enjoin the demonstrations. After a hearing, the trial court determined that NWRA would sustain immediate, irreparable injury if the demonstrations continued and work was delayed thereby, and consequently, the following preliminary injunction was entered:

[T]he Court, effective immediately upon entry hereof, hereby preliminarily enjoins and restrains Defendants and each of them including unnamed persons, firms and corporations acting in concert therewith from all of the following until further Order of this Court:
(A) Trespassing upon all of the premises of Plaintiff including those described in Exhibits “A” and “G” attached to their Complaint in Equity a copy of which is attached hereto which descriptions are herein incorported by reference and upon all of the easements of Plaintiff and the parking lot of the Mountainside Inn as described in hearing Exhibits “NWRA 6, 7 A and B” which are likewise so incorporated herein.
(B) Blocking ingress to and egress from the aforesaid premises of Plaintiff by Plaintiff, its contractors or any other persons, firms or corporations specifically authorized or licensed by Plaintiff to enter thereupon, by any means whatsoever including, but not limited to Defendants parking vehicles, placing objects or persons in a manner preventing ingress and egress either directly upon said premises or upon River Road in the vicinity of said premises or upon the right of way thereof or upon the premises of others in the immediate vicinity of Plaintiff’s said premises by reason whereof Plaintiff’s access to its premises would be blocked.
(C) Interfering with, blocking or disrupting in any manner whatsoever with the scheduled orderly commencement and completion of the work to be performed upon all of the above premises and in the Delaware River and upon the towpath of the canal by all contractors employed by Plaintiff and other upon or near said premises with the express consent of Plaintiff for the purpose thereof.
(D) Granting Plaintiff such other and further relief as the Court may determine to be justly proper, including but not limited to compensatory and punitive damages.

The Defendants enjoined in this order included, among others, Del-Aware Unlimited, Inc., a non-profit corporation whose members were opposed to the water diversion project, and Albert M. Giordano.

The entry of the injunction did not end the controversy. Shortly thereafter NWRA requested the trial court to hold the named defendants in civil contempt, alleging that they were actively violating the court’s order. Numerous other pleadings were then filed by both parties and depositions and hearings ensued. On July 11, 1983, major demonstrations were again held at the site of the pumping station. The Sheriff’s department had been notified of the planned protest beforehand, and a number of deputies were dispatched to the site at 7:30 a.m. on July 11, 1983. They found Albert Giordano positioned atop a crane located at the site with a rope fastened about him, and approximately thirty individuals, including appellants, Joseph Grinrod, William Hines, Bonnie McCormick and Mary Jane Olczak, parading in a semi-circle along the road adjoining the site of the pumping station. One of the deputies read the January 10, 1983 order aloud to the protestors. While it was being read, the protestors sang in unison. A few copies of the injunction were then taped to a fence on the property. Mr. Giordano continued to maintain his position atop the crane. Eventually, the construction workers present at the site lowered the crane and Mr. Giordano was taken into custody. A number of protestors then crossed the access road directly onto the property, forming lines by locking arms. The lines then moved toward the construction area where the crane was situated. As this occurred, these individuals were arrested. The appellants previously mentioned were among the persons taken into custody. On July 14, 1983, additional demonstrations took place at the site of the pumping station. With arms linked, the protestors again crossed onto NWRA property, blocking the front gate and preventing ingress to, and egress from, the construction site. Appellants Bruce Crooks and Raphaelle Delvecchio were among the protestors arrested by the Sheriffs department on that day. The procedures employed by the trial court in both situations were identical.

Immediately after being taken into custody, appellants were brought before the Bucks County Court of Common Pleas. The trial judge issued a rule upon each protestor to show cause why he/she should not be held in contempt of court for violating the January 10, 1983 order. Hearing dates were then set for July 15, 1983 and July 19, 1983, respectively.

At the July 15, 1983 hearing, deputies from the Sheriffs office testified to the events of July 11, 1983 as described above. In addition, the resident engineer responsible for construction at the site testified that work was delayed during the demonstration. The defendants presented only one witness in order to clarify confusion regarding the identity of one of the protestors. Following this hearing, the court made the rules to show cause absolute against Appellants Grinrod, Hines, McCormick and Olczak, among others. The judge then stated that a second hearing was required in accordance with the criteria set forth in Crislip v. Harshman, 243 Pa.Super. 349, 365 A.2d 1260 (1976). Accordingly, he asked counsel for all parties whether they wished to proceed with the hearing at that time or schedule it for the following week. After a ten minute recess, counsel for the protestors and counsel for NWRA agreed to proceed with the second hearing immediately. No further evidence was offered. On the basis of the evidence presented at the prior hearing, the trial court determined that appellants were guilty of wilful contempt of court for failing to abide by the January 10, 1983 order. The trial judge characterized the contempt as civil, stating that he sought only to compel compliance with the injunction order. Thus, the court allowed any person held in contempt to purge himself or herself of that contempt by merely making a statement that he or she agreed to abide by the order in the future. Appellants refused to make such statements and they were then confined to Bucks County Prison. However, the judge informed them that they could purge themselves of the contempt at any time and be released immediately if they agreed to observe the terms of the injunction. In addition, the court further limited the incarceration to the hours between 8:00 a.m. and 6:00 p.m., when work was progressing at the site of the pumping station.

At the July 19, 1983 hearing, counsel for Appellants Crooks and Delvecchio stipulated that their behavior during the July 14, 1983 demonstration was in violation of the terms of the January 10, 1983 injunction. Thus, these appellants were likewise adjudicated in contempt and conditionally confined to Bucks County Prison until such time as they agreed to abide by the terms of the injunction. On appeal from the trial court’s adjudication of contempt, appellants contend that: 1) the evidence was insufficient to support a finding that appellants, Grinrod, Hines, McCormick, and Olczak were within the class of persons enjoined by the injunction order; 2) the trial court did not follow the proper procedure for an adjudication of civil contempt; and, 3) the trial court incorrectly treated these proceedings as civil in nature rather than criminal. We find each of these claims to be without merit.

It is axiomatic that an appellate court’s scope of review in equity matters is very narrow. The trial court’s findings will not be disturbed absent a clear error of law or abuse of discretion. Commonwealth Department of Environmental Resources v. Pennsylvania Power Co., 461 Pa. 675, 686, 337 A.2d 823, 829 (1975). Each court is the exclusive judge of contempts against its process, and on appeal its action will be reversed only when a plain abuse of discretion occurs. East & West Coast Service Corp. v. Papahagis, 344 Pa. 188, 190, 25 A.2d 341, 342 (1942).

Appellants first contend that the evidence was insufficient to sustain a finding that Hines, Grinrod, Olczak and McCormick were within the class of persons enjoined by the injunction decree. We note at the outset that this claim was not raised in the trial court. Appellants appeared at the hearings held to determine whether they were in contempt of court and they were represented by counsel. At no time did any appellant claim that he or she was not bound by the original injunction decree. Issues not raised in the trial court may not be raised on appeal and are deemed waived. Irrera v. SEPTA, 231 Pa.Super. 508, 331 A.2d 705 (1974).

Nonetheless, we are compelled to point out that persons not parties to an injunction order are bound to observe its restrictions when those restrictions are known to such persons to the extent that they must not aid and abet its violation by others. In addition, if persons are not parties to the injunction order, but its terms are known to them and they are within the class intended to be restrained, they may not violate the injunction’s restrictions. Brightbill v. Rigo, Inc., 274 Pa.Super. 315, 418 A.2d 424 (1980). It is clear that formal service of the order upon the alleged violators is not necessary prior to a contempt adjudication, as long as the parties had actual knowledge of the order. See Thompson v. Johnson, 410 F.Supp. 633 (E.D.Pa. 1976); Farber v. Rizzo, 363 F.Supp. 386 (E.D.Pa.1973); Power Authority v. Moeller, 395 N.Y.S.2d 497, 57 A.D.2d 380 (1977).

The injunction order herein preliminarily enjoined the defendants named in the order and “unnamed persons, firms and corporations acting in concert therewith ...” from engaging in certain conduct on the property of NWRA. (emphasis added.) Del-Aware Unlimited, Inc. and Albert M. Giordano were named parties in this order. Despite the fact that the order was read to the protestors and posted at the site, appellants remained there while Albert Giordano was strapped to the crane in the construction area; they sang songs in unison while the terms of the injunction were read aloud; they were among the group of persons who formed lines by linking arms with other protestors on NWRA property. Appellants had actual knowledge of the order, since.it was read to them and posted on the site. Nonetheless, appellants acted in concert or combination with a named defendant in preventing and interfering with construction work on private property owned by NWRA without NWRA’s permission and their conduct fell within the scope of the injunction decree. See United States v. Hall, 472 F.2d 261 (5th Cir.1972); Lance v. Plummer, 353 F.2d 585 (5th Cir.1965); Walker v. Birmingham, 279 Ala. 53, 181 So.2d 493 (1965) aff'd 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967).

It appears that Albert Giordano was the only named defendant in the original injunction order who was present during the demonstrations at the site on July 11, 1983. However, Del-Aware Unlimited, Inc. was also named in the original order and where an injunction has issued against a corporation, it may be enforced against officers, agents, representatives, and employees of the corporation who knowingly violate its provisions. See Brightbill v. Rigo, Inc., supra; Americans Be Independent v. Com monwealth of Pennsylvania, 14 Pa.Commw. 179, 321 A.2d 721 (1974). Although Appellant Grinrod claims that he was not bound by the injunction order, our examination of the record reveals that as of May 13, 1983, two months before these contempt proceedings, he was listed as a member of Del-Aware Unlimited, Inc. (Notes of Deposition May 13, 1983, NWRA exhibit # 1). No evidence was presented indicating that Grinrod was not a member of Del-Aware on July 11, 1983, and thus, we can only infer that his membership continued. Accordingly, Grinrod was specifically bound by the injunction order and his claim that he was not within the class of persons enjoined is patently frivolous.

Appellants next contend that the trial court failed to afford them the proper procedural safeguards before holding them in contempt of court. Specifically, appellants claim that the procedure employed by the trial court lacked the following five essential elements enunciated in Crislip v. Harshman, supra:

1) a rule to show cause why attachment should not issue;
2) an answer and hearing; 3) a rule absolute (arrest); 4) a hearing on the contempt citation; and 5) an adjudication of contempt.

243 Pa.Super. at 352, 365 A.2d at 1261; see also Alternóse Construction Co. v. Building and Trades Council of Philadelphia, 449 Pa. 194, 296 A.2d 504 (1972). However, the five-step procedure outlined above was not necessarily applicable herein. On the contrary, we find that this case is governed by our holding in Rouse Philadelphia Inc. v. Ad Hoc '78, et al., 274 Pa.Super. 54, 417 A.2d 1248 (1979).

These contempt proceedings were grounded upon appellants’ violation of a preliminary injunction that had been entered after a full hearing. The terms of the injunction were read aloud to all protestors and posted in plain view before those persons were taken into custody for its violation. Pursuant to Pa.R.C.P. 1529(c) governing equity actions, “[a] party who fails to comply with a decree may be arrested by attachment ...” Where, as here, the contemnors are in custody pursuant to this rule the first three steps specified in Crislip and Altemose are redundant. Rouse Philadelphia Inc. v. Ad Hoc '78, et al., 274 Pa.Super. at 74, 417 A.2d at 1259. In Rouse, this court stated:

We hold that contempt proceedings which are predicated upon the violation of an order which has been served on the contemnor and entered after a full hearing on the merits thereof may be commenced by attachment, and due process requires no more than notice of the violations alleged and opportunity for explanation and defense. Riccobene Appeal, 439 Pa. 404, 268 A.2d 104 (1970).

Id.; see also Americans Be Independent v. Commonwealth of Pennsylvania, supra (where civil penalties for violation of injunction are sought, the following process is due: 1) accused must be informed of accusations against him; 2) he must be given timely notice and opportunity to answer and defend; and 3) proceedings must be fair and impartial).

In the instant case, appellants were certainly given notice of their alleged violation of the January 10, 1983 order when the sheriff read the injunction order and posted it at the site, and additionally, when the trial court issued the rule to show cause upon them in open court. Appellants were afforded an opportunity to answer and be heard since they were released and a hearing was scheduled for a later date. Furthermore, after the initial hearing was held and the rule to show cause was made absolute, the court afforded appellants a second hearing on the contempt citation. Indeed, if the five-step Crislip procedure were applicable in this case, we would find that the trial judge did his best to comply with that procedure in a case that presented unique circumstances. As in Crislip, although the trial judges’ description of the procedures he followed may not have tracked the language of the civil contempt rules, it is clear that, in substance, the procedure followed was proper. See Crislip v. Harshman, 243 Pa.Super. at 353, 365 A.2d at 1262. Compare Altemose Construction Co. v. Building and Construction Trades Council of Philadelphia, supra (appellants were not afforded opportunity to consult with counsel or to show cause why they should not be held in contempt in proceedings found to be consonant with direct criminal contempt).

Finally, appellants argue that the trial court erred in treating these proceedings as civil rather than criminal in nature. We disagree.

The controlling factor in drawing the line between civil and criminal contempt is the “dominant purpose and objective of the court’s order.” Altemose Construction Co. v. Building and Construction Trades Council of Philadelphia, 449 Pa. at 218, 296 A.2d at 517. If the dominant purpose is to coerce the contemnor to comply with the court’s directive, then the contempt is civil. Rouse Philadelphia Inc. v. Ad Hoc '78, et al., 274 Pa.Super. at 71, 417 A.2d at 1258. Confinement for civil contempt must impose a condition that the contemnor is capable of performing which has the effect of purging the contemnor of the contempt. Simmons v. Simmons, 232 Pa.Super. 365, 335 A.2d 764 (1975).

In this case, the trial judge specifically stated that he held appellants in civil contempt of a previous court order and that he sought only to compel compliance with that court order. Indeed, he characterized the contempt adjudication as a “conditional disposition”; the condition imposed upon appellants for purging themselves of the contempt being merely that each person make a statement that he/she agreed to abide by the terms of the injunction decree. Our Supreme Court has stated that “[wjhen the petitioners carry ‘the keys of their prison in their own pockets/ (citation omitted), the action ‘is essentially a civil remedy designed for the benefit of other parties and has quite properly been exercised for centuries to secure compliance with judicial decrees.’ (citation omitted).” Riccobene Appeal, 439 Pa. 404, 422, 268 A.2d 104, 114 (1970).

Several factors have been identified as characteristic of a civil contempt proceeding:

(1) where the complainant is a private person as opposed to the government or a governmental agency; (2) where the proceeding is entitled in the original injunction action and filed as a continuation thereof as opposed to a separate and independent action; (3) where holding the defendant in contempt affords relief to a private party; (4) where the relief requested is primarily for the benefit of the complainant; and (5) where the acts of contempt complained of are primarily civil in character and do not of themselves constitute crimes or conduct by the defendant so contumelious that the court is impelled to act on its own motion.”

Rouse Philadelphia Inc. v. Ad Hoc '78, et al., 274 Pa.Super. at 71-72, 417 A.2d at 1258 quoting Philadelphia Marine Trade Association v. International Longshoreman’s Association, 392 Pa. 500, 140 A.2d 814 (1958).

The NWRA is an independent municipal authority created by Bucks County pursuant to the Municipal Authorities Act of 1945, 53 P.S. § 301, et seq., and thus, it is an “arm” of the county government. Nonetheless, the other factors associated with a civil contempt are present here. The contempt proceedings were entitled in the original injunction action and handled as a continuation thereof by the trial judge. Holding the protestors in contempt of court afforded relief to NWRA, thereby protecting it from unlawful interference that would delay construction work and ultimately result in lost revenues from the sale of water. Although the increased water supply would arguably benefit the public, the major purpose of the contempt was to prevent losses to NWRA. Appellants argue that NWRA was not the complainant since the Sheriff’s office enforced the injunction order and the court issued rules to show cause on its own motion. However, counsel for NWRA was present at each stage of the contempt proceedings and it was NWRA that presented evidence at the hearings to prove that appellants had violated the injunction order. Finally, the acts complained of in this case did not rise to the level of serious criminal conduct. No damage to NWRA’s property occurred and the record does not reveal any act that amounted to more than trespassing. Moreover, we reiterate that the controlling factor in drawing the line between civil and criminal contempt is the dominant objective of the court’s order. We are convinced that the proceedings employed by the trial judge to enforce compliance with the injunction decree in this case were civil in nature.

Orders affirmed.

      . At the hearing held on July 19, 1983, Appellants Crooks and Delvecchio stipulated to facts indicating that they were bound by the terms of the injunction and that they had violated its restrictions. Thus, on appeal, these appellants did argue that they were not bound by the injunction.

      . Appellants also argue that the language of the injunction order which bound all persons acting “in concert” with the named defendants was too broad because, in effect, it bound the whole world. Federal Rule of Civil Procedure 65(d) provides that an injunction binds parties, their servants and agents and "those persons in active concert or participation” with the parties named. The "in concert” language of that rule was adopted to restrict, rather than broaden, the reach of injunctions. See Vuitton et FILS, S.A. v. Carousel Handbags, 592 F.2d 126 (2nd Cir.1979); Chisolm v. Caines, 147 F.Supp. 188 (E.D.S.C.1954). Whether a person who is not a party to the injunctive decree is bound by it depends on the facts of each case, Vuitton et FILS, S.A. v. Carousel Handbags, supra, and we have determined that the evidence herein conclusively demonstrates that appellants were bound to observe the terms of the injunction order. The "in concert” language of the injunction order in this case was not impermissibly broad.

      . Formal service of such an injunction is not required prior to the contempt adjudication as long as the parties involved had actual notice of the order. See, Thompson v. Johnson, 410 F.Supp. 633 (E.D.Pa.1976).

      . Ironically, many residents in the area viewed the Neshaminy Water Diversion Project as detrimental, rather than beneficial, and it was for that reason that these protests occurred.


source: Caselaw Access Project

author: SPAETH, President Judge:

license: Public Domain

text:
    481 A.2d 886
    Joseph FRIEDMAN and Frida Friedman, Appellants, v. Victor I. KASSER and Barbara Kasser and Leonard Feldman and Bernice Feldman.
    Superior Court of Pennsylvania.
    Argued Oct. 12, 1983.
    Filed Aug. 24, 1984.
    Petition for Allowance of Appeal Denied Feb. 11, 1985.

      Marc M. Orlow, Philadelphia, for appellants.
    Abraham C. Reich, Philadelphia, for appellees.
    Before SPAETH, President Judge, and POPOVICH and HOFFMAN, JJ.
   SPAETH, President Judge:

This is an appeal from a final decree adjudicating the boundary between appellants’ property and appellees’ property. We affirm.

The parties’ arguments concern not the chancellor’s findings of fact, which are not challenged, but the conclusions to be drawn from those findings. The findings, and the testimony from which they derive, may be summarized as follows.

Appellants, Joseph and Frida Friedman, owned jointly with Leonard and Bernice Feldman a large tract of land known as part of Kings Oak Estate in Abington Township, Montgomery County. The tract was subdivided into three lots, which were designated on a Lot Location Plan made for the Friedmans and Feldmans in April 1975. The lots here at issue were Lot No. 3 and Lot No. 5, the westerly side boundary of Lot No. 3 being shown as the easterly side boundary of Lot No. 5. The Friedmans and Feldmans had retained the firm of Lam and Buchsbaum as their agent to sell the lots. Findings of Fact Nos. 1 and 2.

In the Fall of 1976, appellees, Victor I. Kasser and Barbara Kasser, consulted Charles Samter, a real estate salesman employed by Lam and Buchsbaum, to learn whether he had any building lots for sale. Finding of Fact No. 3. Samter testified that he showed the Kassers Lot No. 3, and that they expressed interest in it. R.R. 104a. Mr. Friedman testified that he had “left everything to Mr. Feldman” so far as the sale of the lots were concerned. R.R. 66a; and see chancellor’s Adjudication, Brief for Appellants at 37. Samter therefore told Feldman that the Kassers were interested in Lot No. 3, and he asked Feldman to meet him and the Kassers at the lot to show the Kassers its dimensions. Finding of Fact No. 5. As it happened, the meeting could not be arranged, and Feldman met Samter at the lot alone. Id. There Feldman gave Samter a plot plan, which showed the western portion of the large tract, including Lot No. 3. Exh. D-l. Feldman then paced off the lot’s boundaries, which were staked off, proceeding from stake to stake. As Feldman showed Samter a stake, Samter would tear off a strip from a piece of cloth he had gotten from his car, put a number on the strip, tie the strip on the stake, and write the number he had written on the strip on the corresponding place on the plot plan. Finding of Fact No. 6; R.R. 105a-106a; Exh. D-l. Feldman testified that he told Samter that “[i]t’s [the staking] probably off a little bit but we aren’t sure what” and that “whoever bought the property” “should obtain his own survey.” Finding of Fact No. 7; R.R. 141a-142a.

A few days after meeting with Feldman, Samter showed the lot to the Kassers. In his testimony describing the meeting, Samter said that he pointed out to the Kassers the stakes he had tagged to show the dimensions of the lot, and gave them a copy of the plot plan he had numbered to indicate the location of the tagged stakes. R.R. 108a. Samter did not testify that he had told the Kassers anything about the staking “probably [being] off a little bit,” or about the possible advisability of getting a survey, and we may take it that he made no such statements; Mr. Kasser in his testimony described the meeting as had Samter, i.e., as “[w]alk[ing] around the property, map in hand, finding each of the numbered stakes”, R.R. 84a; and the chancellor describes the meeting in the same way. Finding of Fact No. 9.

After their meeting with Samter, the Kassers conferred with a builder to learn whether it would be feasible to build a house on Lot No. 3. The builder walked the lot while Mr. Kasser pointed out the stakes Samter had numbered and tagged. Kasser also gave the builder a copy of the numbered plot plan. When the builder said that it would be feasible to build a house on the lot, the Kassers bought the lot. Findings of Fact Nos. 9-14. The agreement of sale described the property sold as “Lot # 3 (3.19 acres). Plan of part of Kings Oak Estate dated April 2, 1975. Exhibit “B” attached and described in “B-l”. Exhibit P-4; Finding of Fact No. 14. The agreement also provided that “[i]t is further understood that this Agreement contains the whole agreement between Seller [the Friedmans and Feldmans] and Buyer [the Kassers] and there are no other terms, obligations, covenants, representations, statements, or conditions, oral or otherwise, of any kind whatsoever concerning this sale.” Id.

After the Kassers had bought Lot No. 3, the builder laid plans for building the house, using the numbered stakes as guides in order to comply with zoning side yard requirements. Finding of Fact No. 15. Although the builder ordered a survey for certain right-of-way angles of the property, he did not do so for the common boundary between Lot No. 3 and Lot No. 5 because the boundary was marked by the stakes Samter had tagged. Finding of Fact No. 16. The proposed location of the house was approved by the township, a building permit was issued, the house was built, Finding of Fact Nos. 17-18, and in the Fall of 1977 the Kassers moved into the house, R.R. 89a.

In the Spring of 1978 the Friedmans obtained full title to Lot No. 5 from the Feldmans — it will be recalled that the lot had been owned jointly by the Friedmans and Feldmans— and they moved into the house there. Finding of Fact No. 21; R.R. 89a. Shortly afterwards, the Friedmans had two blacktop parking pads built, within the area that had been designated by the numbered stakes. Id. A dispute between the parties ensued, and in July 1978 Mr. Friedman ordered a survey of the property as it was described on the Lot Location Plan that had been made in April 1975, and as it had been described in the deed to the Kassers. R.R. 60a (Friedman), 94a-95a (Kasser). The survey disclosed that the front left corner of the Kassers’ carport encroached 5.8 feet upon the Friedmans’ property, and the Kassers’ driveway, constructed in a curving line from the carport to the road, encroached to a varying extent up to 45 feet. Finding of Fact No. 19.

In August 1978 the Friedmans filed a complaint in equity, asking that the Kassers be required to remove their carport and driveway, and also, so much of their house as was within 15 feet of the Friedmans’ property, as that property was shown on the survey, in violation of the side yard requirement of the township zoning ordinance. The Kassers answered, denying any encroachment, and asking by counterclaim, that the Friedmans be required to remove their parking pads and to cease their continuing trespass on the Kassers’ property, as that property had been staked out. By further pleadings, the Feldmans were joined as additional defendants, and in May 1980 the matter was heard by the chancellor. On July 28, 1980, the chancellor filed an adjudication, including findings of fact and conclusions of law, and a decree nisi, finding in favor of the Kassers. Specifically, the decree directed the Friedmans and Feldmans to execute a deed conveying to the Kassers such additional property as would make the Kassers’ property “correspond with the actual boundaries established by the stakes with numbered cloths as demonstrated by their [the Friedmans’ and Feldmans’] agent, Charles Samter” and further directing the removal of the Friedmans’ parking pads and the restoration of the property to the condition it was in prior to construction of the pads. On December 3, 1980, the Friedmans’ and Feldmans’ exceptions to the decree nisi were dismissed by a court en banc. The Fried-mans appealed, but on December 30, 1981, the appeal was quashed because no final decree had been entered. Friedman v. Kasser, 293 Pa.Super. 294, 438 A.2d 1001 (1981). On January 22, 1982, a final decree was entered, and on February 12, 1982, the Friedmans filed the present appeal.

As appellants, the Friedmans have made seven separate arguments, challenging various aspects of the chancellor’s decree. The resolution of two of these arguments, which the Friedmans label as their second and third arguments, is dispositive. We shall therefore start our consideration with a discussion of these arguments, reserving consideration of the remaining arguments until later.

The basis of the chancellor’s adjudication is the law of agency. In his view, “[t]he Friedmans and Feldmans are bound by the acts of Charles Samter in demonstrating the boundaries of Lot No. 3.” Conclusion of Law No. 6. By their second argument, the Friedmans assign this as error.

In support of this argument, the Friedmans say that “neither Samter nor the Kassers testified that Samter indicated to the Kassers that the boundaries which he, Samter, demonstrated to them were the accurate boundaries.” Brief for Appellants at 20. The record is to the contrary. Asked about “this tour that you made of that lot”, when he pointed out to the Kassers the stakes he had numbered, Samter testified:

... How could they buy this property until they’d seen it and walked the ground to know exactly what they were buying? They didn’t know where the lines were, they had to find somehow to buy the property, after they walked the property with me, saw their lines, they then at a future date bought the property; no other way to buy it until they’ve seen what they’re buying.
R.R. 109a (emphasis added).

Nevertheless, the Friedmans say, they are not bound by Samter’s demonstration of the boundaries because “Feldman specifically advised Samter that the boundaries as pointed out by Feldman were approximate only”, Brief for Appellants at 21, and “neither Friedman nor Feldman knew or authorized Samter to represent as accurate and definite, the boundaries to the ground as ‘walked off’ by Feldman; id. at 22. In support of this argument, the Friedmans cite Shane v. Hoffman, 227 Pa.Super. 176, 324 A.2d 532 (1974), for the proposition that a principal is not liable for his agent’s misrepresentation unless he had knowledge of the misrepresentation. However, that case required knowledge on the part of the principal to hold him liable for fraud, and appellants are not accused of fraud here.

The liability of a principal to third parties for the act of an agent may rest on express authority, implied authority, apparent authority, or agency by estoppel. Apex Financial Corp. v. Decker, 245 Pa.Super. 439, 443, 369 A.2d 483, 485 (1976). Samter did not have express authority to represent to the Kassers that the boundaries were accurate. Nor did he have implied authority to do so. Implied authority is authority to do all that is proper, usual and necessary to the exercise of the authority actually granted. Apex Financial Corp. v. Decker, supra. The authority actually granted Samter was to show the property with the warning that the boundaries as paced off by Feldman were “probably off a little bit.” It was not necessary to — indeed it was inconsistent with — the exercise of his actual authority for Samter to fail to convey this warning to the Kassers.

However, Samter did have apparent authority to represent to the Kassers that the boundaries were accurate. Apparent authority arises when the principal leads persons with whom his agent deals to believe that he has granted his agent the power to bind him. Apex Financial Corp. v. Decker, supra. Here the Friedmans, through Feldman, to whom they had “left everything,” led persons dealing with their agent Samter to believe that Samter had the power to bind them. If a man of ordinary prudence would believe that the agent possessed the authority he purported to exercise, then the principal is liable for the acts of the agent. Murphy v. Beverly Hills Realty Corp., 98 Pa.Super. 183 (1930). Here the Kassers were entitled as a matter of ordinary prudence to believe that Samter possessed the authority to show them the boundaries of the property. Samter exhibited a plot plan of the lot, prepared for the Friedmans and Feldmans and marked with numbers corresponding to numbers on stakes that had been pointed out by Feldman. The Kassers had no reason to suppose that the apparently clearly staked boundary thus demonstrated by Samter was in fact incorrectly staked. The chancellor therefore properly concluded that the Friedmans were “bound by [Samter’s apparently authorized demonstration of] the boundaries of Lot No. 3.” Conclusion of Law No. 6.

The Friedmans argue, however, by their third argument, that the chancellor erred in admitting evidence of Samter’s demonstration of the boundaries. In their view, the evidence was barred by the parol evidence rule, that is, by the interpretation clause in the agreement of sale that the “agreement contained] the whole agreement” and there was “no other representations ... of any kind whatsoever concerning this sale.”

In determining the applicability of the parol evidence rule, we have said that:

we should balance the extent of the party’s knowledge of objectionable conditions derived from a reasonable inspection [of the property] against the extent of the coverage of the contract’s integration clause in order to determine whether that party could justifiably rely upon oral representations without insisting upon further contractual protection or the deletion of an overly broad integration clause.
LeDonne v. Kessler, 256 Pa.Super. 280, 294, 389 A.2d 1123, 1130 (1978).

The Kassers had no knowledge of the objectionable condition — that the boundary was in fact not as demonstrated to them. They conducted a reasonable inspection of the lot; the boundary appeared to be staked; and the Friedman’s agent unequivocally represented to them that as staked, the boundary corresponded with the boundary shown on the plot plan. While it is true that the Kassers could have learned of the objectionable condition by using an expert surveyor, our Supreme Court has said in Berger v. Pittsburgh Auto Equipment, 387 Pa. 61, 127 A.2d 334 (1956), that where expert tests rather than visual inspection were necessary to determine the accuracy of a representation, a contractual integration clause was inapplicable and the parol evidence rule therefore was inoperative. Balancing the extent of the Kassers’ knowledge against the extent of the coverage of the integration clause, we conclude that the Kassers could justifiably rely on Samter’s oral representations regarding the boundary. The chancellor therefore properly held that the parol evidence rule did not preclude evidence of Samter’s representations.

This conclusion is especially compelling if one considers a provision that was deleted from the agreement of sale. That provision was:

It is understood that Buyer has inspected the property ... and he has agreed to purchase it as a result of such inspection and not because of or in reliance upon any representation made by Seller ... or by the agent of the Seller____
Exh. P-4., para. 13.

By having this provision deleted from the agreement of sale, the Kassers did exactly what LeDonne requires: Since they had relied upon the Seller’s agent’s representation, they did insist[] upon further contractual protection,” by having deleted what would have been an overbroad integration clause.

The Friedmans’ remaining arguments may be disposed of summarily. Their first argument is that “[t]he encroachment by the Kassers on Friedmans’ property should have been enjoined.” Brief for Appellants at 17. This begs the question by assuming that there was an encroachment, or in other words, that they were not bound by Samter’s demonstration of the boundary. The same observation may be made of the sixth and seventh arguments, which are, respectively, that the “Kassers’ violation of the [zoning] sideyard requirements ... should have been enjoined,” id. at 29, and that the chancellor “erred in ordering Friedman to remove these portions of their parking pads which were on the right of way,” id. at 30. The fourth argument challenges the chancellor’s discussion of natural and artificial monuments, and the fifth, his discussion of estoppel, id. at 26, 28; but we need not consider the issues raised by these arguments; as already noted, the chancellor’s adjudication depends upon the resolution of neither of these issues but on the law of agency.

Affirmed.


author: CAVANAUGH, Judge: HOFFMAN, Judge, CERCONE, President Judge, CIRILLO, Judge,

text:
    481 A.2d 892
    In re ADOPTION OF JAMES J. Appeal of JAMES P., Respondent Natural Father Children and Youth Services. JAMES P. v. CHILDREN AND YOUTH SERVICES OF DELAWARE COUNTY.
    Superior Court of Pennsylvania.
    Argued Feb. 11, 1983.
    Filed Aug. 24, 1984.

      Carl Oxholm, III, Haverford, for appellant.
    Alfred J. Mattei, Assistant County city solicitor, Media, for appellee (at No. 2793) and for participating party (at No. 2776).
    Before CERCONE, President Judge, and CAVANAUGH, WIEAND, CIRILLO, POPOVICH, MONTGOMERY and HOFFMAN, JJ.
   CAVANAUGH, Judge:

Appellant, James P., raises four issues in his appeal, two of which will be addressed herein. First, appellant asks us to define the scope of appellate review in termination of parental rights cases in this Commonwealth, and derivatively, to consider whether the recent U.S. Supreme Court case of Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), mandates that our scope of review be broader than an abuse of discretion. Secondly, the appellant contends that the lower court erred in finding that appellee sustained the evidentiary burden of clear and convincing in its order that appellant’s parental rights be terminated.

James J. was born out of wedlock on December 19, 1979 to Marie J. and appellant, James P. Marie J. was involuntarily committed to Haverford State Hospital on December 31, 1979. Consequently, James J. was placed in the custody of Children and Youth Services of Delaware County (hereinafter CYS), appellee herein. On December 15, 1980, Marie J.’s parental rights were involuntarily terminated pursuant to § 311(2) of the Pennsylvania Adoption Act of 1970.

CYS filed a petition to terminate appellant’s parental rights on January 23, 1981. The petition was grounded on §§ 2511(a)(2) and 2511(a)(5), of the Adoption Act of 1980. A hearing was held on May 18, 1981 and on July 6,1981, the court ordered that appellant’s parental rights be terminated. Appellant’s exceptions were dismissed on October 9, 1981. Appellant’s petition requesting visitation pending appeal of the termination order to the Superior Court was denied on September 28, 1981 in a separate proceeding. The case was heard on appeal by a three member panel of this court and subsequently certified to the court en banc for reargument.

I

The first issue raised on appeal is whether the scope of review in cases involving the termination of parental rights should be broader than abuse of discretion.

Appellant argues that the scope of review in termination cases is unclear. We disagree. Although there has been some uncertainty in case law emanating from our courts in our discussions of what “broad scope of review,” means in custody cases, our Supreme Court has been consistent and clear in defining scope of review in termination of parental rights cases.

On appeal, an appellate court is limited to determining whether the trial court’s termination of appellant’s parental rights is supported by competent evidence. In re M.L.O., 490 Pa. 287, 241, 416 A.2d 88, 90 (1980); In re Adoption of Baby Boy P. 479 Pa. 138, 141, 387 A.2d 873, 874 (1978); In re William L., 477 Pa. 322, 340, 383 A.2d 1228, 1237, cert. denied, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978); In re Adoption of M.T.T., 467 Pa. 88, 91, 354 A.2d 564, 566 (1976); In re Adoption of Farabelli, 460 Pa. 423, 427, 333 A.2d 846, 848 (1975); Sheaffer Appeal, 452 Pa. 165, 169, 305 A.2d 36, 39 (1973). Moreover, unless that court abused its discretion or committed an error of law, such findings are entitled to the same weight given a jury verdict. Matter of Adoption of Gene Tuney Mullen, 321 Pa.Super. 496, 468 A.2d 1098 (1983). Matter of Adoption of J.S.H., 299 Pa.Super. 90, 92-93, 445 A.2d 162, 163 (1982); In re Adoption of J.S.M., Jr., 492 Pa. 313, 316, 424 A.2d 878, 879 (1981); In re M.L.H., 490 Pa. 54, 57, 415 A.2d 29, 30 (1980); In re D.K.W., 490 Pa. 134, 138, 415 A.2d 69, 71 (1980); In re D.J.Y., 487 Pa. 125, 130, 408 A.2d 1387, 1389 (1979); Adoption of R.H., 485 Pa. 157, 162, 401 A.2d 341, 344 (1979); In re William L., supra.

Of course, since the Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), decision, the “competent evidence” standard has been replaced with a clear and convincing standard. However, there is no indication from ease law subsequent to the Santosky v. Kramer decision or in Santosky itself, that the abuse of discretion or error of law standard is in any way affected thereby.

Insofar as termination cases are concerned, intimations of broad appellate review or broad scope of review should properly relate to the appellate court’s duty to ensure that the trial court has satisfactorily fulfilled the requirements of examining all evidentiary resources, conducting a full hearing and setting forth its decision in a full discursive opinion. While, unlike custody cases, the termination cases have not repeatedly verbalized the requirement of comprehensiveness, it is clear from a reading of the cases that the requirement is engrafted on the law. Accord, In re Adoption of J.S.M., Jr., 492 Pa. 313, 424 A.2d 878; In re D.J.Y., 487 Pa. 125, 408 A.2d 1387 (1979); In Interest of C.M.E., 301 Pa.Super. 579, 448 A.2d 59 (1982).

Nevertheless, a broad or searching review does not vest in the reviewing court either the duty or the privilege of making its own independent determination of fact, nor does it preclude an appellate court from using abuse of discretion as the appropriate standard of review. The purpose of employing broad and searching review is for the protection of the parties in ensuring that the inquiry of the lower court is complete and that its decision was made in accordance with the due process clause of the Fourteenth Amendment in protecting the fundamental liberty interest of natural parents in their child. The purpose of employing the abuse of discretion standard of review, on the other hand, is to accord the trier of fact the appropriate deference as he has had the opportunity to observe the witnesses and evaluate their testimony, and by reason of his position is presumed to be practised and skilled in this responsibility.

The reason for insistence on a full hearing, a developed record, and an adjudication which demonstrates that appropriate consideration was given to the relevant factors is clear. Termination cases represent a delicate tension between two of our society’s most fundamental precepts: the right of a parent to exercise the rights and obligations of a parent toward his child, free from governmental intrusion, and society’s interest in the nuturing, care, safety and training of children. Therefore, it is necessary that the lower court be of an inquiring mind and insist that the full story be told, and that its opinion demonstrate that the evidence has been weighed in consideration of the statutory requirements and the applicable standard of proof.

Appellant argues that after Santosky v. Kramer, supra, due process mandates a searching appellate review in cases involving the termination of parental rights. As previously discussed, we do not believe that a searching review precludes application of abuse of discretion as the appropriate appellate standard.

The Santosky decision does not discuss the appropriate scope or standard of appellate review in a termination case; it discusses the burden of proof which must be borne by the party wishing to terminate parental rights. In Santosky, 'the U.S. Supreme Court made clear that the standard of proof which must be applied in a termination proceeding is either clear and convincing or beyond a reasonable doubt. That is, the Santosky decision disapproved of the use of preponderance of the evidence as the burden of proof in a termination proceeding. In order to ensure a party that his due process rights will be protected, appellant urges this court to adopt a broader standard of review than abuse of discretion to guarantee that the trial court in fact complied with the requirement in law of clear and convincing evidence. However, Santosky does not ask or answer the question of whether the abuse of discretion standard now used by this court fairly allocates the risk of affirming an erroneous decision between the Commonwealth and the natural parent; it does ask “whether a preponderance standard fairly allocates the risk of an erroneous factfinding between these two parties.” 455 U.S. at 761, 102 S.Ct. at 1398 (emphasis added).

Santosky mandates an upgrading of the burden of proof necessary for a party to succeed in a termination proceeding from preponderance to clear and convincing. By so doing, the due process rights of appellant are adequately protected. The heightened burden of proof encumbers the fact finding process with a protective standard designed to preserve basic parental rights. It is enough that appellate review is co-ordinately broadened, i.e., the appellate court must conclude that the trial court’s discretion was exercised on clear and convincing evidence. There is nothing in Santosky or in the development of Pennsylvania law which should cause us to adopt a new scope of review.

The clear and convincing standard imposes a heavy burden of proof upon the proponent of termination. It requires that the existence of disputed facts be “highly probable, that is, much more probable than [their] non-existence.” Sanders, Anatomy of Proof in Civil Actions, 28 Pa.L.Rev. 297, 304 (1968); see also McBaine, Burden of Proof: Degrees of Belief, 32 Calif.L.Rev. 242, 253-254 (1944). In Pennsylvania, courts applying this standard have required that the testimony be “so clear, direct, weighty, and convincing as to enable the [factfinder] to come to a clear conviction without hesitancy, of the truth of the precise facts in issue.” In re Jackson, 267 Pa.Super. 428, 431, 406 A.2d 1116, 1118 (1979) (citation omitted).

The risk that the Santosky court considered most important was the risk that the factfinding function of a trial court using a preponderance of the evidence standard would deprive the parties of a fundamentally fair decision. By elevating the burden of proof from a standard of preponderance of the evidence to clear and convincing evidence, the probability that “numerous factors [that] combine to magnify the risk of erroneous factfinding” at the trial level is thereby lessened. Santosky, 455 U.S. at 762, 102 S.Ct. at 1398.

For the aforementioned reasons, and notwithstanding the Santosky opinion, we agree that abuse of discretion is the proper standard of review and most importantly that it best upholds due process concerns and serves the interests of the parties in a termination of parental rights case. We do not believe that Santosky has any effect on the existing standard of review or that by broadening the standard of review, parent’s fundamental rights with respect to their children will be better protected. Therefore, we reject appellant's contention that the holding in Santosky mandates a broader scope of review than abuse of discretion.

In summation, an appellate court will not reverse an order for termination of parental rights unless it is apparent that the trial court abused its discretion, committed an error of law, or lacked evidentiary support for its findings.

II

Appellant’s next argument is that the appellee failed to show, by clear and convincing evidence, those grounds necessary for termination of parental rights under either 23 Pa.C.S. § 2511(a)(2) or (5), which sections appellee relies upon. We agree.

Section 2511 in pertinent part provides that termination of parental rights is appropriate where the moving party shows:

§ 2511...
(a) ...
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
or
(5) The child had been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.

[4] In order to meet the clear and convincing burden of proof appellee must instill in the mind of the court a firm belief or conviction. In describing this burden our Supreme Court has said:

The witnesses must be found to be credible, that the facts to which they testify are distinctly remembered and the details thereof narrated exactly and in due order, and that their testimony is so clear, direct, weighty, and convincing as to enable the jury to come to a clear conviction, without hesitance, of the truth of the precise facts in issue ... It is not necessary that the' evidence be uncontradicted ..., provided it carries a clear conviction to the mind ... or carries a clear conviction of its truth...

La Rocca Trust, 411 Pa. 633, 640, 192 A.2d 409, 413 (1963).

The court below, applied the correct burden of proof and found that the clear and convincing standard was met by appellee within the LaRocca standard.

Appellant’s contention is to the contrary. Specifically, appellant argues that parental incapacity was not shown by competent or clear and convincing evidence under § 2511(a)(2), which requires repeated, continued and irremediable incapacity of the parent, nor was it shown under § 2511(a)(5), which requires that the parent has failed to remedy conditions which initially occasioned the removal from parental care.

We begin our discussion of whether or not the appellee met its burden of proof by considering In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975).

The Geiger court set forth the following requirements: ... three things must be proved before a natural parent’s rights to a child will be terminated under section [2511(a)(2) and (5)]: (1) repeated and continued incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse, neglect or refusal caused the child to be without essential parental care, control or subsistence; and (3) that the causes of the incapacity, abuse, neglect or refusal cannot or will be remedied.

In re Geiger, 459 Pa. 636, 639, 331 A.2d 172, 173-74 (1975).

In this case, appellee’s allegation of appellant’s repeated and continued incapacity in advocating termination pursuant to § 2511(a)(2) is unsupported by the record and, therefore, cannot satisfy a clear and convincing standard. CYS proffered the testimony of a Haverford State Mental Hospital employee who stated that appellant had been admitted on three occasions (one and one-half months, four days, one day) over a period of fifteen months with the last admission occurring approximately a year before the termination hearing in the lower court. In addition, the state caseworker testified that more than a year before the termination hearing, appellant was confused as to his paternity regarding James J.

The testimony of these witnesses did not provide the court with any information as to the reasons for the admissions, the diagnoses, the treatment rendered, appellant’s condition or prognoses upon discharge.

Appellant moved to dismiss for failure to state a cause of action pursuant to 23 Pa.C.S. § 2511 after CYS presented its case. The motion was denied. Consequently, appellant called his psychiatrist, Dr. Herman Boerner, to testify in his behalf.

Dr. Boerner testified that he had been treating appellant, on an out-patient basis, for about two years at the time of the hearing. He stated that although appellant had been diagnosed as chronic schizophrenic, his disorder was well in hand and seemed to be well controlled for at least the past six months during which appellant had been taking the prescribed “very moderate” dose of medication. He further testified that appellant’s future ability to function satisfactorily was contingent upon his responsible attitude toward taking his medication. Dr. Boerner’s expert opinion was that appellant’s disorder could go into remission. After reviewing all of the testimony, we conclude that the termination of appellant’s parental rights pursuant to § 2511(a)(2) and In re Geiger, was not justified, as there is insufficient evidence showing appellant’s repeated and continued incapacity that cannot or will not be remedied by him. Therefore, the burden of proof was not met.

Further, the evidence advanced at the termination hearing in regard to § 2511(a)(5) was conflicting. The state caseworker testified that he had arranged meetings and visitations with Mr. P. so that he could see James J. He stated that “Mr. P. rarely held his child, rarely asked to hold him, held him for short periods of time at my urging. His handling of the child was unwieldly.” In addition he said:

During my first visit with Mr. P., Mrs. J. and the child on February 4, 1980, James P. held the child briefly at the request of Mrs. J. When he took the child, Mrs. J. told him to support the child by the neck, at which point, Mr. P. held the child or put his hands around the baby’s neck, to which Mrs. J. said, Well don’t choke him. Mr. P. responded to that with a smile and saying, don’t give me any ideas.

The caseworker also testified that appellant had denied him permission to come to his house on three occasions and that appellant engaged in “teasing activity” with James J. The caseworker further stated that he had difficulty maintaining a relationship with appellant due to appellant’s hostility.

The lower court opinion did not specify any of appellant’s testimony in support of his contention; it merely concluded that notwithstanding the conflicting testimony, the clear and convincing burden of proof was met under LaRocca Trust, supra.

We disagree. Present in the record are the following undisputed facts which we feel demonstrate that appellee did not meet the clear and convincing burden of proof pursuant to § 2511(a)(5). Appellant had steadily increased the number of visits with James J. over the sixteen month period before the hearing. James said that he did not take a more active role before the termination of Marie J.’s parental rights (five and one-half months before the hearing) because he did not want to interfere with the natural mother’s nurturing responsibilities. James said that he “did not wish to usurp Marie J.’s rights and get involved in any predicament in that way; and number two, I had no way of taking care of the child on my own.” Appellant said that, “I liked holding the child. I have had no previous experience with children, but I enjoyed holding the child and it felt good. I was a little bit awkward, I think, but I tried to do my best.”

He further stated that “I feel affectionate for the child and I feel like I would like to regain the visits and work toward achieving custody.” In assessing his life since August, 1980, appellant said,

[tjhings look better for me now____ Things are coming together professionally, my music, I have hooked up with management, I am getting jobs, and things look good in that respect. And emotionally, I have been on an even keel and have had no incidents or problems. I have been taking my medicines and — and following the therapy of Dr. Boerner and working towards making myself successful at what I am doing, and trying to make forward progress in my life.

At the hearing date, appellant had maintained himself on his medication for nine months, was working at his job longer hours and with regularity, and had made arrangements for child care during his working hours. This evidences a significant effort by appellant to change his lifestyle after termination of the mother’s parental rights. It is clear from examination of the record below that appellant attempted to get increased visitation and clearly demonstrated a desire to learn how to effectively parent and eventually assume the responsibility for the welfare of the child, albeit not exclusively with the help of the agency. It is not mandated by the statute that all of a parent’s efforts to remedy his parenting problems must necessarily be made in cooperation with the agency or through the agency. It is obvious by examining the record that the caseworker and appellant had a poor relationship and the mere fact that appellant chose to clear some of the barriers in the way of the restoration of his legal parenthood in ways other than through the agency should not be held against him.

A parent’s ability to parent must be assessed with reference to his condition at the time of the hearing, not with reference to his past condition. In re Howard, 468 Pa. 71, 360 A.2d 184 (1976). “A parent’s effort in maintaining a relationship with a child must always be evaluated in light of the obstacles confronting that parent.” In re Adoption of J.S.M., Jr., 492 Pa. 313, 317, 424 A.2d 878, 880 (1981). In addition, this court has said:

Because of the importance placed on the family, the Commonwealth may disrupt the parent-child relationship only upon a clear showing of necessity; moreover, even if removal is necessary to protect the child, every effort should be made to reunite the family. In re Adoption of R.I., 468 Pa. 287, 361 A.2d 294 (1976), appeal dismissed, U.S. cert. denied, 429 U.S. 1032 [97 S.Ct. 722, 50 L.Ed.2d 743] (1977). All circumstances must be considered when analyzing a parent’s performance of parental obligations in a proceeding for termination of parental rights; the parent’s performance must be measured in light of what would be expected of an individual in circumstances which the parent under examination finds herself. In re Adoption of B.D.S., [494 Pa. 171, 431 A.2d 203 (1982)].

In Interest of C.M.E., 301 Pa.Super. 579, 586-87, 448 A.2d 59, 63 (1982).

The Supreme Court in Santosky stated that termination should, in essence, be a last resort. “[W]hile there is still reason to believe that positive, nurturing parent-child relations exist, the parents partriae interest favors preservation, not severance, of natural familial bonds.” 455 U.S. at 766-67, 102 S.Ct. at 1401 (footnote omitted). We find that the record below contains more than ample evidence to provide reason to believe that positive, nurturing, parent-child relations exist between appellant and James J.

In a recent case, our own Supreme Court reversed a termination order which was based largely on the fact that the mother had a low I.Q. The court said:

The lower court concluded, inter alia, that the possibility of rehabilitation of Appellant in a maximum period of two to two and one-half years was not a reasonable amount of time. We disagree. We refuse to punish a parent for her lack of parenting skills which is based, at least in part, on her limited intellectual abilities, especially when the evidence leads to the conclusion that she may be able to reach a satisfactory level of parenting skill with the aid of programs available to her. See In re D.L.R., 495 Pa. 55, 57, 432 A.2d 196, 197 (1981) (NIX, J., dissenting).

In Interest of C.M.E., 301 Pa.Super. 579, 588, 448 A.2d 59, 63-64.

We conclude that the evidence is insufficient to reach the “subjective certainty” about the factual conclusions required by due process to find that the clear and convincing evidentiary burden was met by appellee and consequently, that appellant’s parental rights should be terminated. Santosky, 455 U.S. at 769, 102 S.Ct. at 1402.

Appellant has demonstrated through his acts as well as his words that he loves his child and desires to learn how to be a good parent. In consideration of all of the evidence, the appellee failed to show by clear and convincing evidence that appellant’s parental rights should be terminated pursuant to 23 Pa.C.S. §§ 2511(a)(2), or 2511(a)(5). Therefore, we conclude that the lower court lacked the requisite evidentiary support for its finding that appellant lacks the capacity to provide the essential care and subsistence and that such incapacity is irremediable. Consequently, we reverse.

CERCONE, President Judge, files concurring and dissenting opinion.

CIRILLO, J., filed dissenting opinion.

HOFFMAN, J., filed concurring opinion.

POPOVICH, J., concurs in result.

HOFFMAN, Judge,

concurring:

Although I agree with Judge Cavanaugh’s conclusion, that the appellate standard of review in parental termination cases is whether the lower court has abused its discretion, and with his result, I write separately to clarify a misunderstanding shared by members of the bar and bench alike — the distinction between appellate scope of review and standard of review. Scope of review, as well-stated by Judge Cavanaugh, relates “to the appellate court’s duty to ensure that the trial court has satisfactorily fulfilled the requirements of examining all evidentiary resources, conducting a full hearing and setting forth its decision in a full discursive opinion.” (Opinion by CAVANAUGH, J. at 491). A broad scope of review, therefore, requires that the appellate court conduct a comprehensive review of the record formulated in and the decision formulated by, the lower court. In other words, in reviewing a termination of parental rights order, our Court must consider all of the evidence before the lower court as well as the lower court’s findings of fact and conclusions of law. This does not mean, however, that we must employ an equally broad standard, of review. Standard of review refers to an appellate court’s ability, or rather the limits on its ability, to modify or reverse the action taken by the lower court. An abuse of discretion standard, therefore, requires that unless upon a broad, comprehensive review of the entire record we find that the lower court has abused its discretion, we may not alter the lower court’s decision. Accordingly, I take issue with Judge Cercone’s assertion that a broad scope of review is necessarily incompatible with a more narrow standard of review.

I wish also to consider one further matter addressed by my colleagues. At first glance, it may appear that employing an abuse of discretion standard of review in parental termination cases is inconsistent with the broader standard of review employed in child custody cases. See In re Donna W. and Edward W., 325 Pa.Superior Ct. 39, 472 A.2d 635 (1984). However, in termination decisions, unlike custody cases, the trial court is guided by certain benchmarks in formulating its decision. These guidelines provide inherent protection that, coupled with an abuse of discretion review by the appellate court, well ensures all litigants’ rights. For instance, as a result of Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the evidentiary burden of proof in termination cases is one of (dear and convincing evidence, the highest burden imposed in civil cases. The trial court must therefore be well-convinced that this strict burden has been met before terminating a natural parent’s rights. In contrast, although in custody cases the burden of proof is entirely dependent upon the parties to the dispute, namely, parent, third-party or state, the burden is never as stringent as the clear and convincing standard imposed in parental termination cases. See In re Custody of Hernandez, 249 Pa.Superior Ct. 274, 376 A.2d 648 (1977). In addition, the Adoption Act, 23 Pa.C.S.A. § 2301 et seq., Act of October 15, 1980, P.S. 934, No. 163, § 1, effective January 1, 1981, provides trial judges with a compulsory structure through which a termination decision must be made. See, e.g., 23 Pa.C.S.A. § 2511 (Grounds for involuntary termination). No such act exists in the child custody area to lend a similar consistency to trial court decisions.

I am therefore unpersuaded that the standard of review in custody and termination cases must be identical. The two categories of cases involve different parties, evidentiary burdens and judicial leeway. In acknowledging that our standard of review in termination cases has always been one of “competent evidence” or “abuse of discretion”, we are not affording parents facing possible termination of their natural rights less protection than that afforded parents facing potential adverse custody orders. The “built-in” protections in termination proceedings ensure that end.

CERCONE, President Judge,

concurring and dissenting:

I agree with the result reached by the majority but am not satisfied with the holding concerning the scope of review to be applied in termination cases. I find the discussion concerning scope of review confusing. The majority opinion speaks of a broad scope of review, as it relates to the termination of parental'rights cases, but then concludes that an abuse of discretion standard is the proper one to be applied by an appellate court in deciding termination. I recognize the use of the term “abuse of discretion” as the standard applied in the precedential cases of our Supreme Court, but it seems that if we agree that a broad scope of review must be applied in order to determine if the lower court has erred we should not be afraid to say so.

Recently, in In Re: Donna W., 325 Pa.Superior Ct. 39, 472 A.2d 635 (1984) an en banc panel of our court held that a broad scope of review is to be applied by an appellate court in custody cases. Now, in a termination case, we are recommending the abuse of discretion standard. If a broad scope of review is proper in the custody matter, as it was in In Re: Donna W., how much more proper is it in termination where, unlike custody, the court’s order is final? Both of these situations concern most serious family matters, and an appellate court’s responsibility is as grave in the one as it is in the other.

I can understand the majority’s concern about the appellate court’s exercise of an “independent determination of fact” in these cases. (Majority opinion at 491). I wish to make clear that in In Re: Donna W., where we set forth the standard for the broad scope of review in custody, we did not take it upon ourselves to allow an exercise of independent judgment by our court which would permit us to overturn a trial court’s decision, absent some procedural or substantive error. Where the record demonstrates the trial court’s decision as correct and precise in its findings of fact, conclusions of law and deductions and inferences properly drawn, then our court must affirm. So, too, in termination cases. However, we can only make such an assessment in both custody and termination after an exhaustively careful and detailed study of the entire record which can only be done by a standard of review broad enough to do so.

CIRILLO, Judge,

dissenting:

Although I am in agreement with the majority’s position as to the scope of appellate review in the termination of parental rights, I respectfully dissent from the finding that the requisite grounds for termination have not been established by clear and convincing evidence in the instant matter.

I share in the concern of the courts in insuring that termination be granted only as a last resort, since, by its nature, it is a procedure by which family life is irretrievably destroyed. See Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L,Ed.2d 599 (1982). But when there no longer exists a positive, nurturing, parent-child relationship, the legislature has mandated that the interests of the weaker party, the child, prevail. 23 Pa.C.S. § 2511(b). Under some circumstances termination is warranted. In re William L., 477 Pa. 322, 383 A.2d 1228 (1978). Accordingly, it becomes the obligation of the court to evaluate the parent-child relation, and, if necessary, to sever familial bonds so that the essential physical and emotional needs of the child are served. In the instant matter, the majority has not fulfilled this responsibility.

Before the rights of the parents in their natural child may be severed completely and irrevocably, due process requires that the allegations be supported by clear and convincing evidence. Santosky v. Kramer, supra, “It is not necessary that the evidence be uncontradicted ... provided it carries a clear conviction to the mind ... or carries a clear conviction of its truth...” La Rocca Trust, 411 Pa. 633, 192 A.2d 409 (1963). In construing “parental duties,” the courts have noted that a parent has an affirmative duty to meet the child’s needs for love, protection, guidance and support. In Interest of T.S.L., 487 Pa. 245, 409 A.2d 332 (1979); In re Howard, 468 Pa. 71, 360 A.2d 184 (1976). Parenthood is not merely a biological status or a passive state of mind. In the Matter of the Adoption of Gene Tuney Mullen, 321 Pa.Super. 496, 468 A.2d 1098 (1983).

In the case at bar, the hearing court granted termination upon consideration of two sections of the Adoption Act, P.S. § 2511(a)(2) and (5), and did so in light of the clear and convincing evidence standard. Section 2511, in pertinent part, provides that termination of parental rights is appropriate where the moving party shows:

2511...
(a) ...
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
(5) The child had been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child with a reasonable period of time . and termination of the parental rights would best serve the néeds and welfare of the child.

The record established that the appellant James P., natural father of James J., is diagnosed as chronically schizophrenic and manic depressive. He has a history of psychiatric hospital commitments and of drug abuse. Although he is currently taking medication and undergoing therapy to alleviate his disorder, it was revealed through the testimony of his psychiatrist that the appellant has a lax approach in maintaining his medical program. Failure on his part to take his medication has and will result in the surfacing of his mental illness.

Although the appellant expresses a desire to parent his child, the evidence is to the contrary. The appellant has never had custody of or provided support for his child. Nor had he visited the child during his first year of life, allegedly due to his intention to protect the rights of the mother and his doubts as to the child’s paternity (specifically, the possibility that the mother had been artificially inseminated by either Jimmy Carter or a DuPont). In fact, visitation was not requested until the appellant received notice of the termination proceedings. All efforts by Children and Youth Services of Delaware County to assist the appellant in establishing a relationship with his child were met with open hostility, evidenced by the appellant’s failure to keep appointments, his refusal to permit the caseworker to enter his home, and his threats and obscene manner in his contacts with the caseworker. The visits that did take place between the appellant and his child were devoid of any appropriate interaction. They were characterized by minimum and often negative physical contacts, by teasing on the part of the appellant and crying by the child. During the course of visitation, the appellant never addressed or referred to his child by name, a noticeable omission during the termination proceedings as well.

From the aforementioned evidence, the hearing court properly concluded that the appellant exhibits a repeated and continued incapacity in his parenting role, and further that the conditions and causes of that incapacity will not be remedied. His mere physical presence and his expressed, but untranslated desires to parent do not satisfy the affirmative duties of parenthood nor do they indicate a potential for their development. To require any additional evidence, as sought by the majority, ignores the critical needs of the child and places an unreasonable barrier, perhaps one that extinguishes the potential of permanently freeing the child for adoption. The hearing court, in granting the termination order, upheld the needs and the rights of the child and did so in accordance with the standard of clear and convincing evidence.

The order terminating parental rights should be affirmed.

      . The issues not addressed in the opinion are: whether the agency-appellee failed to aid appellant in remedying his parenting difficulties; and, whether, if the evidence relied upon by the court below met the clear and convincing standard of proof, the statute, as applied to this case, was constitutional. Due to the fact that we are reversing, it is not necessary to determine these issues.

      . Act of July 24, 1970, P.L. 620, No. 208, 1 P.S. §§ 101 to 603, repealed, effective, January 1, 1981.

      . Act of October 15, 1980, P.L. 934, No. 163, § 1, 23 Pa.C.S. §§ 2101 to 2908, effective, January 1, 1981.

      . The determination of the scope of review in custody cases has been recently determined by this court, en banc, in In re Donna W., 325 Pa.Super,Ct. 39, 472 A.2d 635 (1984) (Petition for Allocatur filed March 22, 1984).

      . The Santosky court held that "... determination of the precise burden equal to or greater than that standard [clear and convincing evidence] is a matter of state law properly left to state legislatures and state courts.” 455 U.S. at 769-70, 102 S.Ct. at 1402-1403. The Pennsylvania Supreme Court determined in In re T.R., 502 Pa. 165, 465 A.2d 642 (1983), that the clear and convincing standard would be adopted "as a matter of state law applicable to all termination proceedings.” Id., 502 Pa. 165, 465 A.2d at 642.

      . Interestingly, the trial court used the clear and convincing standard even though the hearing was pre-Santosky. The history of the burden of proof required in termination of parental rights cases in Pennsylvania is explained in In re Adoption of M.E.T., 313 Pa.Super. 316, 459 A.2d 1247 (1983).