text:
    562 A.2d 902
    NORRISTOWN AUTOMOBILE CO., INC. a/k/a Norristown Ford, Appellant, v. Arthur S. HAND, Appellee.
    Superior Court of Pennsylvania.
    Argued March 8, 1989.
    Filed Aug. 11, 1989.

      Richard E. Miller, Philadelphia, for appellant.
    Richard W. Rogers, Norristown, for appellee.
    Before CAVANAUGH, BECK, and CERCONE, JJ.
   BECK, Judge:

In a lis pendens action 1) will the requirement of the pendency of a prior action be satisfied where the two complaints are filed on the same day and 2) will the requirement of “identity” be satisfied, where the same parties bring separate actions in different counties, based on the same events, but where the actions assert different theories of recovery.

Appellant Norristown Automobile Company (Norristown) operates a car sales business in Montgomery County. Appellee Arthur Hand was employed by Norristown as its used car manager. On December 5, 1987, Norristown fired Hand believing that he was involved in a fraudulent sales scheme that misled and caused financial loss to both Norris-town and its customers. On March 9, 1988 at 1:01 P.M„, Hand filed a complaint in the Court of Common Pleas of Montgomery County against Norristown claiming that Norristown breached its employment contract with Hand by firing him. On the same day at 4:18 P.M., Norristown filed a complaint in the Court of Common Pleas of Philadelphia County against Hand in tort on the basis of Hand’s involvement in the alleged fraud. Hand filed preliminary objections in the Philadelphia action seeking dismissal of Norris-town’s claim on the basis of improper venue, lack of personal jurisdiction and lis pendens. Finding in favor of Hand, the Philadelphia court dismissed Norristown’s action. Although the court fou^d no merit to the jurisdiction and venue claims, it dismissed Norristown’s claim on the basis of lis pendens. The trial court opined that a decision in the Montgomery County action could resolve all the issues raised in the Philadelphia action. Norristown timely appeals the order. We reverse and remand for further proceedings.

Norristown claims that the Philadelphia trial court erred in dismissing its cause of action on the basis of lis pendens, i.e. the pendency of a prior action, because (1) under the law, the Montgomery County action could not be considered prior in time to the Philadelphia action and (2) the two actions had insufficient identity to meet the strict requirements for a dismissal under the doctrine of lis pendens. We address the priority issue first.

A party asserting the defense of lis pendens must aver that a prior action is pending. Feather v. Hustead, 254 Pa. 357, 98 A. 971 (1916); Pa.R.C.P. 1017(b)(5). Thus, in determining the applicability of the defense of lis pendens the first question that must be answered is the order in which each action was commenced. See Simmons v. Jesse C. Stewart Co., 346 Pa. 54, 29 A.2d 55 (1943). Under the Rules of Civil Procedure, an “action” is commenced by filing either “(1) a praecipe for a writ of summons, (2) a complaint, or (3) an agreement for an amicable action.” Pa.R.C.P. 1007. In the instant case, both parties filed complaints; appellee at 1:01 P.M. on March 9, 1988 and appellant at 4:13 P.M. on March 9, 1988. Thus, it appears clear that Hand commenced his action three hours and twelve minutes prior to Norristown’s commencing its action.

Appellant argues that the doctrine of lis pendens does not apply where two actions are filed during the same day because a day must be treated as an indivisible measure of time. Thus, Norristown argues that neither action at issue can be prior to the other because they were filed at the same time. “ ‘It is true that for many purposes the law knows no division of a day; but, whenever it becomes important for the ends of justice, or in order to decide upon conflicting interests, the law will look into a fraction of a day as readily as into the fractions of any other unit of time.’ ” Grant Estate, 377 Pa. 264, 267, 105 A.2d 80 (1954) (citations omitted). See also Edmundson v. Wragg, 104 Pa. 500 (1883) (a day is always indivisible except where it must be cut up to prevent injustice). Under the circumstances of this case, we find that the ends of justice and Hand’s legitimate interests require that the day be viewed as divisible and Hand’s complaint as prior in time. Our reasons are as follows.

In the instant case we agree with the trial court that the issues raised in the Philadelphia action could be fully and adequately resolved in the Montgomery County action. Furthermore, if neither cause of action could be considered prior to the other and both had to be litigated, then resolution of issues in the case decided first in time might be binding on the case not yet decided. See Zarnecki v. Shepegi, 367 Pa.Super. 230, 532 A.2d 873 (1987), allocatur denied, 518 Pa. 643, 542 A.2d 1371 (1988). For example, in the instant case if the Philadelphia action comes to trial and decision first, then Hand, the plaintiff who filed his action in Montgomery County, would be bound by the resolution in Philadelphia County of issues common to both cases. Thus, Hand’s strategy in trying the case in Montgomery County might be impaired. Moreover, even if the Philadelphia action did not come to judgment first, Hand would still have to pursue the litigation process in two counties simultaneously. This duplication of effort surrounding resolution of the same central issues would place an undue and wasteful burden on Hand’s time and finances. In addition, by permitting the two actions to go forward simultaneously, two courts would be forced to hear what could be fully adjudicated in one. Besides wasting judicial resources, this would leave the parties racing to judgment in the common pleas courts of two different counties. This parallel litigation might give the unfortunate appearance that justice in one county differs from that in another.

For all of the above stated reasons, we thus conclude that under the circumstance of this case Hand’s action must be considered prior in time to that of Norristown. However, this is not the end of the inquiry. Having concluded that Hand’s action was prior to Norristown’s, we must next examine whether there was sufficient identity of the two actions for lis pendens to apply.

Appellant claims that the doctrine of lis pendens does not apply because the causes of actions and relief sought in the two cases differ. It has long been held that a party asserting the defense of lis pendens must show that “the case is the same, the parties the same, and the rights asserted and relief prayed for the same....” Hessenbruch v. Markle, 194 Pa. 581, 593, 45 A. 669, 671 (1900) (citation omitted); Dickerson v. Dickersons Overseas Co., 369 Pa. 244, 85 A.2d 102 (1952); Virginia Mansions Condominium Association v. Lampl, 380 Pa.Super. 452, 552 A.2d 275 (1988); Penox Technologies, Inc. v. Foster Medical Corp., 376 Pa.Super. 450, 546 A.2d 114 (1988). This three-pronged identity test must be strictly applied when a party is seeking to dismiss a claim under the doctrine of lis pendens. Virginia Mansions Condominium Association v. Lampl, supra, 380 Pa.Super. at 755, 552 A.2d at 277; General Accident Fire & Life Assurance Corp., v. Flamini, 299 Pa.Super. 312, 445 A.2d 770 (1982); Epstein v. State Farm Mutual Insurance Co., 312 Pa.Super. 542, 459 A.2d 354 (1983) (Cirillo, J. dissenting). Thus, this court has refused to dismiss causes of action under the doctrine of lis pendens in cases where the later cause of action derived from the same contract or events that formed the basis of the prior action but the right asserted and/or the relief sought in the two actions were not the same. See Virginia Mansions Condominium Association v. Lampl, supra (lis pendens not available where counterclaim in second suit and claim in prior cause of action derive from same factual events but cases involve different causes of action and request different relief); Penox Technologies v. Foster Medical Corp., supra (lis pendens not available to a defendant in a breach of contract action who had previously commenced an action for declaratory judgment to determine whether a breach of contract action on the same contract could be maintained); Glazer v. Cambridge Industries, Inc., 281 Pa.Super. 621, 422 A.2d 642 (1980) (lis pendens not available where all suits based on same facts and underlying shareholders agreement but earlier actions only sought equitable relief and later action is for damages in assumpsit); Kramer v. Kramer, 260 Pa.Super. 332, 394 A.2d 577 (lis pendens not available where both actions were based on the same contract but first suit was in assumpsit for damages and later suit was an equitable action to rescind the contract); Raw v. Lehnert, 238 Pa.Super. 324, 357 A.2d 574 (1976) (lis pendens not available where two actions arise from same subject matter but first suit is in equity and second in assumpsit for damages).

In the instant case, Hand brought an action against Norristown for breach of contract, and a few hours later, Norristown brought an action in tort against Hand. The parties in the two actions are the same. In addition, key events underlying both actions are the same. However, the rights asserted and the relief sought differ. Thus, the facts of this case do not meet the strict identity requirements for dismissal under the doctrine of lis pendens. Penox Technologies v. Foster Medical Corp., supra. We therefore reverse the decision of the trial court dismissing Norris-town’s claim and remand for further proceedings.

In reversing the order dismissing Norristown’s action against Hand, we observe that “the party raising the defense of lis pendens can ask that the action in which the defense is being raised be abated, that it be stayed pending the outcome of the prior litigation, or that the actions be consolidated.” Virginia Mansions Condominium Associ ation v. Lampl, supra, 380 Pa.Super. at 456, 552 A.2d at 278 (emphasis added). In the recent case of Singer v. Dong Sup Cha, M.D., 379 Pa.Super. 556, 550 A.2d 791 (1988), a panel of this court held that a prior pending action could not serve as a basis to dismiss a later claim because of the rule of law that a prior pending action in another state cannot be used as a defense in a Pennsylvania action. The Singers brought identical claims in New Jersey and Pennsylvania. The court observed, however, that even though an identical New Jersey claim could not be used to bar the Pennsylvania claim on the basis of lis pendens, “the [trial] court [still] ha[d] the inherent equitable power to stay the proceedings in the second [Pennsylvania] suit during the pendency of the prior [New Jersey] suit.” Id., 379 Pa.Superior Ct. at 560, 550 A.2d at 793.

The Singer court relied heavily upon Klein v. City of Philadelphia, 77 Pa.Commw. 251, 465 A.2d 730 (1983). In Klein, the two actions at issue involved nearly identical taxpayer claims. The Commonwealth Court ruled that the action before it should not be dismissed on the basis of lis pendens because of a failure of identity between the parties in the two actions. However, the court directed that the second case be stayed pending the outcome of the prior action. As reiterated in Singer: “The trial court need not ... sanction the duplication of effort and waste of judicial resources that would result from allowing both cases to proceed simultaneously, in a race to judgment.” Singer v. Dong Sup Cha, M.D., supra, 379 Pa.Super. at 560, 550 A.2d at 793 (quoting Klein v. City of Philadelphia, supra, 77 Pa.Cmwlth. at 259, 465 A.2d at 731).

In the instant case, the trial court found that all the issues raised in the Philadelphia action could be resolved in the prior Montgomery County action. As in Singer and Klein, the instant action involves a set of circumstances where the litigation of two suits would create a duplication of effort on the part of the parties and waste judicial resources by requiring two courts of common pleas to litigate a matter that in all likelihood could be fully addressed in one forum. In addition, permitting both actions to proceed simultaneously would create the unseemly spectacle of a race to judgment in the courts of two counties of this Commonwealth. Thus, should the issue be raised by appellee on remand, the trial court may have to decide the propriety of granting a stay in the instant matter. Singer v. Dong Sup Cha, M.D., supra, 379 Pa.Super. at 560, 550 A.2d at 793.

Order reversed. Case remanded for further proceedings. Jurisdiction relinquished.

      . The doctrine of lis pendens also requires that the prior action be pending. Feigley v. Jeffes, 104 Pa.Cmwlth. 540, 522 A.2d 179, appeal denied, 516 Pa. 627, 532 A.2d 438 (1987). Appellant raises no argument questioning the pendency of the Montgomery County suit.


source: Caselaw Access Project

author: OLSZEWSKI, Judge:

license: Public Domain

text:
    562 A.2d 906
    PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE, on Behalf of Sharon E. SIMPSON, Appellants, v. George TAMM, Appellee.
    Superior Court of Pennsylvania.
    Submitted April 10, 1989.
    Filed Aug. 14, 1989.

      John C. Fekety, Philadelphia, for Pa. Dept, of Public Welfare, appellant.
    Sallie A. Rodgers, Harrisburg, for Simpson, appellant.
    Gregory B. Emmons, Newtown, for appellee.
    Before CIRILLO, President Judge, and OLSZEWSKI and WATKINS, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a trial court order dismissing a petition for support filed on behalf of Sharon E. Simpson by the Commonwealth of Pennsylvania (hereinafter “DPW” or “Department”). DPW raises the following issues for our review: (1) whether the trial court erred in applying Pa.R. C.P. 1009(a) and Pa.R.C.P. 1010(d) to the instant support action; (2) whether the trial court erred in not finding that appellee’s conduct constituted submission to the trial court’s jurisdiction; and (3) whether the trial court erred in dismissing the instant action for defective service. We reverse.

On November 7, 1983, DPW, on behalf of Sharon E. Simpson, filed a petition for support pursuant to 42 Pa.C. S.A. § 6701 et seq. against appellee, George W. Tamm. The petition alleged that Ms. Simpson currently receives public assistance, appellee and Ms. Simpson are the parents of Justin Simpson, and appellee neglects to support their child. Appellee was not served with process until March of 1986. In addition, the petition was not reinstated in accordance with Pa.R.C.P. 1010(d). On March 24, 1986, appellee’s counsel entered his appearance. Thereafter, appellee filed a demand for a jury trial and a motion for paternity testing. After receipt of the blood test results, appellee, however, admitted paternity by filing an acknowledgement of paternity. A hearing, originally scheduled for October 1, 1986, was rescheduled for July 29,1987. On that same day, after oral argument, the trial court dismissed DPW’s petition for support. This appeal followed.

DPW maintains that the trial court erred in applying Rules 1009(a) and 1010(d) to the instant support action. Specifically, the Department argues that a support petition or complaint need not be reinstated if not served within thirty days of filing. Rule 1009(a) provides for service of a complaint within thirty days after filing. If service within the Commonwealth is not made within the time specified in Rule 1009(a), a complaint may be reinstated and served within thirty days of the reinstatement. Pa.R.C.P. 1010(d). In the instant case, DPW concedes that it did not comply with the rules delineated supra. The Department, however, argues that Rules 1009(a) and 1010(d) are inapplicable in a civil support action. We agree. Generally, a civil action for support is governed by the Civil Procedural Support Rules (“Support Rules”). See Pa.R.C.P. 1910.1 et seq. Initially, we note that the Support Rules do not specify a time period in which to file a petition or complaint. Nor is there a specific rule requiring reinstatement of a complaint. In addition, unlike most rules governing other particular types of actions, the Support Rules have no conformity rule providing that the rules relating to a civil action apply when no specific rule applies. This omission is purposeful in itself and in light of the explanatory note to Pa.R.C.P. 1910.1 governing the scope of the Support Rules. The note provides in pertinent part:

all actions or proceedings to enforce a duty of support ... will be governed by these Rules. These Rules will provide the complete procedure for all such actions of support. The practitioner need not refer to any other source, except for substantive law or administrative procedure.

Pa.R.C.P. 1910.1, explanatory note.

Appellee, however, maintains that Rules 1009(a) and 1010(d) are applicable to the instant support action in light of 42 Pa.C.S.A. § 6704(f), which states:

Character of action. — An action brought under this sub-chapter shall be a civil action governed by general rules applicable to civil matters.

In the case sub judice, we do not read section 6704(f) so broadly. Section 6704(f) merely distinguishes an action brought pursuant to 42 Pa.C.S.A. § 6701 et seq. from criminal prosecutions for failure to pay support. Moreover, we find significant the omission of a support rule specifying a time period for filing of a petition. This omission is indicative of a specific policy consideration, namely, the need to secure payments from obligors despite: (1) attempts by obligors to avoid service, and (2) the difficulty in locating obligors. Having no time constraints, except for the statute of limitations, a spouse or child may not be prevented from obtaining support because of circumstances created by the obligor or by circumstances beyond their control. Given this policy objective, we find that Rules 1009(a) and 1010(d) are inapplicable to the instant support action and, accordingly, conclude that proper jurisdiction over appellee exists. See Sharp v. Valley Forge Medical Center, 422 Pa. 124, 127, 221 A.2d 185, 187 (1966) (jurisdiction of court over person of defendant is dependent upon proper service of process having been made).

In light of our resolution of the Department’s first claim, we find it unnecessary to address DPW’s remaining contentions. Accordingly, we reverse the trial court order, reinstate DPW’s petition, and remand for proceedings consistent with this memorandum.

Jurisdiction relinquished.

      . The trial court did not file an opinion pursuant to Pa.R.A.P. 1925.

      . After the instant petition was dismissed, but prior to the filing of notice of appeal to this Court, a second petition for support was filed and a support order was entered. The order incorporates an agreement between Sharon Simpson and appellee, directing appellee to pay the sum of $35.00 per week effective August 15, 1987. The order further provides:
      Defendant acknowledge^] paternity of the child, Justin Simpson[,] on August 28, 1986. Order to increase to $65.00 per week for the one child effective October 10, 1987. Defendant to pay $5.00 per week on the arrears. Defendant to provide medical and dental insurance coverage as available through his employer and to provide within 30 days to [Sharon Simpson] a medical insurance card, copy of the policy and claim forms as available from the insurance company.
      Order at 1. Appellee maintains that the Department waived its instant contentions as a result of the agreement delineated supra. We find no waiver. Although DPW may have agreed to payment of support as of August 15, 1987, there still remains the issue of arrearages from November 7, 1983, the date of the filing of the support petition, until August 15, 1987.

      . Rules 1009 and 1010 were rescinded, effective January 1, 1986. These rules have been consolidated at Pa.R.C.P. 401.

      . The Support Rules, however, do not apply to actions or proceedings for support based upon:
      (a) the interstate reciprocal provisions of the Revised Uniform Enforcement of Support Act (1968), 42 Pa.C.S. § 6741 et seq.;
      (b) Sections 4 to 7 of the Support Law of June 24, 1937, P.L. 2045, 62 P.S. §§ 1974-1977, relating to the rights, duties and proceedings between indigents, relatives liable for their support and public agencies; or
      (c) a contract or agreement unless the contract or agreement that it may be enforced by an action in accordance with these rules; and
      (2) an application for a temporary order of support and other relief pursuant to the Protection from Abuse Act of October 7, 1986, P.L. 1090, No. 218, as amended by the Act of June 28, 1978, No. 81, 35 P.S. § 10181 et seq.
      Pa.R.C.P. 1910.1.

      . The reference to the rules of civil procedure in Pa.R.C.P. 1910.-6(a)(3) is limited to the adoption of the appropriate manner of personal service as described in Pa.R.C.P. 1009(b), and does not refer to the time for personal service specified in Pa.R.C.P. 1009(a).

      . See Pa.R.C.P. 1051, relating to actions in ejectment; Pa.R.C.P. 1061, relating to actions to quiet title; Pa.R.C.P. 1071, relating to actions in replevin; Pa.R.C.P. 1091, relating to actions in mandamus; Pa.R.C.P. 1111, relating to actions in quo warranto; Pa.R.C.P. 1141, relating to actions of mortgage foreclosures; Pa.R.C.P. 1161(a), relating to actions upon ground rents; Pa.R.C.P. 1501, relating to actions in equity; and Pa.R.C.P. 1920.1, relating to actions of divorce and annulment.


author: KELLY, Judge:

text:
    562 A.2d 908
    COMMONWEALTH of Pennsylvania v. Elijah YATES, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 6, 1989.
    Filed Aug. 14, 1989.

      Larry D. Feldman, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before DEL SOLE, KELLY and HESTER, JJ.
   KELLY, Judge:

The principal issue raised by this appeal is whether two convictions for aggravated assault, arising from injuries to two individuals caused by a single blast from a shotgun, should have been deemed to have merged under the common law merger doctrine as applied in Pennsylvania. We find that the offenses did not merge, and affirm the order denying appellant post-conviction relief.

In February 1981, appellant went to Debra Wimes’ apartment armed with a loaded shot gun and engaged in an argument with the occupants of the apartment, including Rosetta Williams, the grandmother of his children. After he was pushed out of the apartment and the door was closed in his face, appellant placed the shot gun against the wooden door, and fired into the apartment. Louis Pigford and Debra Wimes were both seriously injured by the blast. Fortunately, none of the five children, or other adults present in the apartment were injured by the blast.

Appellant was arrested, tried by jury, and convicted of two counts each of aggravated assault and reckless endangerment, and one count each of possessing the instrument of a crime and possessing a prohibited offensive weapon. Post-verdict motions were denied. Appellant was sentenced to consecutive five to ten year terms of imprisonment on the two aggravated assault convictions, and a concurrent term of one to two years imprisonment on the possessing an instrument of crime conviction.

This Court affirmed on direct appeal, and our Supreme Court denied allocatur. Two separate petitions in federal court for habeas corpus relief have been denied. On May 5, 1984, appellant filed a petition under the now superseded Post-Conviction Hearing Act. 42 Pa.C.S.A. §§ 9541 et seq. (superseded as to all petitions filed on or after April 13, 1988 by the Post-Conviction Relief Act, 42 Pa.C.S.A. § 9541 et seq.). Counsel was appointed, an amended petition was filed, and an evidentiary hearing was conducted. The trial court then denied appellant’s P.C.H.A. petition on August 10, 1988. This timely appeal followed.

Appellant contends on appeal that consecutive sentences for two aggravated assault convictions arising from a single shot gun blast violated the common law merger doctrine as applied in Pennsylvania. Appellant also contends that trial counsel was ineffective in failing to spend sufficient time consulting with appellant. We find no merit in the contentions and affirm the order denying post-conviction relief.

Appellant contends that separate sentences for two aggravated assault convictions arising from a single criminal act are illegal in that they violate the common law merger doctrine as applied in Pennsylvania. Appellant argues that the language of the aggravated assault statute evinces an intent to protect society in general, rather than individuals particularly, and therefore injuries to several people in violation of that statute resulting from a single act may only give rise to a single sentence. He cites Commonwealth v. Zaengle, 332 Pa.Super. 137, 480 A.2d 1224 (1984) and Commonwealth v. Miller, 469 Pa. 24, 364 A.2d 886 (1976) in support of this argument.

The Commonwealth responds that multiple sentences for separate injuries to different individuals arising from a single criminal act are permissible, and cites Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d 1098 (1984), in support of this response. The Commonwealth also aptly notes that Commonwealth v. Zaengle, supra, was vacated and remanded by our Supreme Court for reconsideration in light of Commonwealth v. Frisbie, supra, and that on remand this Court concluded separate sentences from the single criminal act involved did not violate the merger doctrine. See Commonwealth v. Zaengle, 508 Pa. 355, 497 A.2d 1330 (1985), on remand 345 Pa.Super. 124, 497 A.2d 1335 (1985). Hence, appellant’s reliance on this Court’s initial decision in Zaengle is plainly misplaced.

Likewise, appellant’s reliance on Commonwealth v. Miller, supra, is misplaced. Indeed, Miller is neither favorable to appellant, nor vaguely apposite. Rather, it stands for the rather unastounding and well settled proposition that a conspiracy conviction does not merge for sentencing purposes with a completed offense which was the objective of the conspiracy. Thus, appellant’s contention is wholly without support.

In Commonwealth v. Frisbie, supra, our Supreme Court held that separate sentences for reckless endangerment, arising from a single episode in which the appellant had driven into a crowd during a police chase, did not violate double jeopardy protections. Justice Larsen opined for the majority that the legislature could constitutionally authorize multiple sentences for each individual threatened or injured by appellant’s reckless driving, and had demonstrated an intent to do so by defining the offense in terms of a threat to “another person” rather than specifically limiting the number of charges which could be brought with language such as “one or more persons,” “another individual or group of individuals,” or “another person or persons,” as the legislature had done in other cases. 485 A.2d at 1100. The language of the aggravated assault statute is indistinguishable in this respect. See 18 Pa.C.S.A. § 2702.

Justice Larsen also noted that construction of the statute to permit multiple sentences was consistent with the general purpose of the Crimes Code to ensure punishment proportionate with criminal liability and to differentiate among offenders based upon the seriousness of the criminal conduct involved:

An offender whose unlawful act harms or is likely to harm many people is more culpable, and thus deserving of more severe punishment, than an offender whose unlawful act harms only one person.

506 Pa. at 467, 485 A.2d at 1100-01.

The applicability of the majority’s analysis in Frisbie to the facts of the present case is underscored by Chief Justice Nix’s concurring opinion in Frisbie, wherein he stated:

My quarrel with the majority’s analysis is that it views this situation as being equivalent to one firing a projectile as a result of a single act of depressing the trigger where the consequences result in the wounding of several victims. In the hypothetical case the single act theory comes into play and the discussion that the majority indulges in would be appropriate.

506 Pa. at 467, 485 A.2d at 1101. (Emphasis added). The Chief Justice’s hypothetical example differs from the facts of our case only in that, rather than having a single bullet injure two or more persons, here the multiple pellets dispersed in a single shot gun blast separated and injured two persons. That is obviously a distinction without a difference.

The Frisbie decision was narrowly focussed on a double jeopardy claim. Nonetheless, in subsequent cases our Supreme Court’s rejection of the single act theory of merger in accordance with the double jeopardy analysis in Frisbie has been unequivocal. See Commonwealth v. Michael Williams, 514 Pa. 124, 129, 522 A.2d 1095, 1097-98 (1987); Commonwealth v. Harper, 512 Pa. 155, 170, 516 A.2d 319, 327 (1986); Commonwealth v. Sayko, 511 Pa. 610, 615, 515 A.2d 894, 896 (1986); Commonwealth v. Rhodes, 510 Pa. 537, 561, 510 A.2d 1217, 1229-30 (1986).

However, while this case was pending in this Court, our Supreme Court issued its opinions in Commonwealth v. Leon Williams, 521 Pa. 556, 559 A.2d 25 (1989) and Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989), which specifically overruled our Supreme Court’s prior decision in Commonwealth v. Michael Williams, supra, and significantly altered the common law merger doctrine as applied in Pennsylvania. We now consider the effect of this change on the rejection of the single act theory of merger in Frisbie and its progeny.

Our Supreme Court’s prior test for merger as set forth in Commonwealth v. Michael Williams, supra, may accurately be summarized as follows. Offenses merged if the factual predicate for one offense “necessarily included” the factual predicated of the other offense and the offenses were not intended to vindicate “substantially different interests.” Significantly, in the Michael Williams decision our Supreme Court expressly rejected the single act theory for merger. 522 A.2d at 1097-98.

Both Weakland and Leon Williams, however, specifically overruled Michael Williams, and announced a new merger test. The new merger test may be accurately summarized as follows. In order for offenses to merge, one offense must be a “lesser included offense” of the other, i.e. the elements of the lesser offense must be identical to and capable of being wholly subsumed within the elements of the greater offense, and the factual predicate for the lesser included offense must also be part of the factual predicate required to establish the greater offense. See Commonwealth v. Weakland, supra, 555 A.2d at 1233.

Our Supreme Court has thus adopted what amounts to a conclusive presumption of legislative intent, or a rule of statutory construction, which provides that the legislature will be conclusively presumed to have intended to vindicate any and all interests violated by a lesser included offense in the authorized penalty for the greater offense, and that when the legislature creates an offense whose elements cannot be wholly subsumed within those of another offense, the legislature will be conclusively presumed to have identified a separate interest to be separately vindicated. The only exception to these bright line rules or presumptions applies when facts other than those required to support the greater offense support a conviction for an otherwise lesser included offense. See Commonwealth v. Weakland, supra; Commonwealth v. Leon Williams, supra.

These changes, however, address other aspects of Pennsylvania’s construction of the common law merger doctrine and in no way effect the rationale expressed in Frisbie and its progeny for rejecting the single act theory of merger. That the rejection of the single act theory by Frisbie and its progeny was left undisturbed by Weakland and Leon Williams is made clear by our Supreme Court’s reliance upon this aspect of its Frisbie decision in its decision in Commonwealth v. DeSumma, — Pa. —, 559 A.2d 521 (1989), which was filed after Weakland and Leon Williams.

Thus, it remains the law of this Commonwealth that the life and safety of each citizen is to be protected individually. There is no “two for one discount" in the Pennsylvania Crimes Code, and we will not permit criminals to imply one through distortion of the common law merger doctrine. It shall not be a defense to liability that an indiscriminant force employed by a criminal injured or placed at risk more or different persons than intended. To the contrary, the only effective way for a criminal to limit potential liability in that respect is to choose more discriminant tools for achieving the criminal objective(s) sought, i.e. to stop using firearms and other instruments of crime which place bystanders at risk.

Conclusion

Judgment of Sentence affirmed.

DEL SOLE, J., concurs in the result.

      . Appellant has failed to even suggest, let alone establish, how his case could or would have been improved if additional consultations had occurred between himself and counsel. Vague and conclusory allegations of ineffectiveness of this kind are patently frivolous. See Commonwealth v. Petras, 368 Pa.Super. 372, 382, 534 A.2d 483, 488 (1987). Further discussion of this contention is not warranted.

      . That is unless, of course, the legislature unequivocally expresses a contrary intent by using language such as that cited by Justice Larsen in Frisbie. 485 A.2d at 1100. They have not done so here. See 18 Pa.C.S.A. § 2702.

      . We note that on these facts, appellant could quite easily have been convicted of five or more additional counts of reckless endangerment with regard to the children and other adults also in the apartment when appellant let loose the indiscriminant lethal force of a shot gun blast. Had he been convicted on such charges, additional consecutive terms of imprisonment could lawfully have been imposed in accordance with the reasoning set forth in Frisbie.


author: DEL SOLE, Judge:

text:
    562 A.2d 912
    Nancy J. SCHOFF, Appellant, v. Carl RICHTER, Appellee.
    Superior Court of Pennsylvania.
    Argued June 7, 1989.
    Filed Aug. 14, 1989.

      Carolann A. Young, Asst. Dist. Atty., Somerset, for Schoff, appellant.
    Jon A. Barkman, Somerset, for appellee.
    Before CAVANAUGH, DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

This appeal has been taken from an order entered by the trial court which affirmed an earlier order directing Appellee to provide $300.00 per month for the support of his three children. Upon review we find that this appeal must be quashed.

Subsequent to the filing of a Complaint for support, a conference was held and a hearing officer recommended that Appellee be required to pay $300 per month for the support of his three children. The parties were given ten days to file a written demand for a hearing before the court to review this recommended order. Such a demand was made, a hearing was held on the demand and on September 2, 1988, the court entered an order establishing Appellee’s support obligation at $300 per month, which affirmed the earlier recommended order.

The record indicates that an appeal was not taken from this order. Sometime after the filing of the September 2, 1988 order Appellant petitioned the court to reconsider its order, however this petition is absent from the record. Appellant apparently sought to have the September 2, 1988 order reconsidered in light of additional documentation of the parties’ income and expenses. See: Memorandum Opinion 11/18/88 at 1, and N.T. 10/14/88 at 1-4. Also filed with the court was a Petition to Modify or Terminate Support Order. This petition made by Appellee did not seek reconsideration, as did Appellant’s petition, rather, it requested a modification of the earlier order due to a change in circumstances. On October 14, 1988, more than 30 days after entry of the September 2, 1988 order, the court expressly granted Appellant’s motion for reconsideration and ordered a hearing. The court declined to consider Appellee’s petition for reduction at that time. After reconsideration the court again affirmed its earlier orders by stating:

AND NOW, this 18th day of NOVEMBER, 1988, consistent with the foregoing Memorandum, our Orders of March 11, 1988 and September 2, 1988 establishing Defendant’s support obligation at $300.00 per month for the support of three children are hereby affirmed.

The effect which an application for reconsideration will have on the appeal process is addressed in Pa.R.A.P., Rule 1701. This rule tolls the time for taking an appeal only when the court files “an order expressly granting reconsideration ... within the time prescribed by these rules for the filing of a notice of appeal.” Phrased differently the trial court is permitted to grant reconsideration only if such action is taken during the applicable appeal period. An order granting reconsideration will only be effective if it is made and entered on the docket before expiration of the applicable appeal period, 30 days from the entry of the order which is the subject of the reconsideration motion, and if it states that it is expressly granting reconsideration. It should be emphasized that the Rule requires reconsideration to be expressly granted. It is insufficient for the trial court to merely set a hearing date on the reconsideration motion or issue a Rule to Show Cause. Failure to “expressly” grant reconsideration within the time set by the rules for filing an appeal will cause the trial court to lose its power to act on the application for reconsideration. See: Note following Pa.R.A.P. 1701.

In the instant case the court entered a final appeal-able order on September 2,1988. No appeal from this order was filed. A petition to reconsider the September order was made before the trial court seeking to supplement information previously presented to the court. Contrast: Fortune/Forsythe v. Fortune, 352 Pa.Super. 547, 508 A.2d 1205 (1986) (where it was determined that court had entered an order on a petition for modification of support alleging a change in financial conditions, which was final and appeal-able, rather than on a petition for reconsideration) After the 30 day appeal period had expired the court entered an order dated October 14, 1988 granting the request to reconsider. Had the court expressly granted reconsideration within thirty days of the September 2, 1988 order, the time for filing a notice of appeal would have begun to run anew after entry of the decision on reconsideration. This would be true regardless of whether or not the court’s decision amounted to a reaffirmation of its prior determination. Pa.R.A.P. 17 01(b)(3)(ii).

However, in this case reconsideration was not granted within the appeal period and the trial court became powerless to act upon the petition. Furthermore, Appellant failed to file an appeal from the September 2, 1988 order along with her motion to reconsider which would have preserved her appellate rights in the event the trial court neglected to act on the reconsideration petition within the 30 day appeal period. Since reconsideration was not expressly granted within 30 days from the court’s September 2nd order and since an appeal was not filed within thirty days of this order, the instant appeal, filed December 8, 1988 from the court’s decision on reconsideration, must be quashed.

Appeal quashed.


author: WIEAND, Judge:

text:
    562 A.2d 913
    Donald C. DOUGLASS and Regina M. Douglass, his wife, Appellees, v. LICCIARDI CONSTRUCTION COMPANY, INCORPORATED, a Pennsylvania Corporation, a/k/a Foxchase, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 13, 1989.
    Decided Aug. 14, 1989.

      David B. Reiss, Connellsville, for appellant.
    Amy E. Hewitt, Latrobe, for appellees.
    Before WIEAND, KELLY and HESTER, JJ.
   WIEAND, Judge:

In this action on a building contract, the jury found that the contract had been breached by the builder, Licciardi Construction Company (Licciardi), and awarded damages to the owners, Donald Douglass and Regina Douglass, in the amount of fifteen thousand ($15,000) dollars. After post-trial motions had been denied and judgment entered on the verdict, Licciardi appealed.

The case was submitted to the jury on special interrogatories. In response thereto, the jury found that appellant had failed to construct a residential dwelling for appellees in accordance with the parties’ contract and had performed some of the construction in a defective and unworkmanlike manner. The jury found further that the cost of correcting the defects and completing construction as agreed was fifteen thousand ($15,000) dollars. In answer to another interrogatory, the jury found that the dwelling house would have had an increased market value of fifteen thousand ($15,000) dollars if it had been constructed according to the terms of the contract. Appellant contends that the jury’s award of damages was unsupported by the evidence and contrary to law.

The general measure of damages in breach of contract cases is set forth in Restatement (Second) of Contracts § 347 as follows:

Subject to the limitations stated in §§ 350-53, the injured party has a right to damages based on his expectation interest as measured by
(a) the loss in the value to him of the other party’s performance caused by its failure or deficiency, plus
(b) any other loss, including incidental or consequential loss, caused by the breach, less
(c) any cost or other loss that he has avoided by not having to perform.

“If defective or partial performance is rendered, the loss in value caused by the breach is equal to the difference between the value that the performance would have had if there had been no breach and the value of such performance as was actually rendered. In principle, this requires a determination of the values of those performances to the injured party himself and not their values to some hypothetical reasonable person or on some market.” Restatement (Second) of Contracts § 347, comment b (emphasis added).

Because it is sometimes difficult in building contract cases to prove with certainty the loss in value to the injured party, he or she may elect to calculate loss in value in accordance with Section 348(2) of the Restatement (Second) of Contracts. This section provides as follows:

(2) If a breach results in defective or unfinished construction and the loss in value to the injured party is not proved with sufficient certainty, he may recover damages based on
(a) the diminution in the market price of the property caused by the breach, or
(b) the reasonable cost of completing performance or of remedying the defects if that cost is not clearly disproportionate to the probable loss in value to him.

This has been explained further in comment c as follows:

c. Incomplete or defective performance. If the contract is one for construction, including repair or similar performance affecting the condition of property, and the work is not finished, the injured party will usually find it easier to prove what it would cost to have the work completed by another contractor than to prove the difference between the values to him of the finished and the unfinished performance____
Sometimes, especially if the performance is defective as distinguished from incomplete, it may not be possible to prove the loss in value to the injured party with reasonable certainty. In that case he can usually recover damages based on the cost to remedy the defects____
Sometimes, however, such a large part of the cost to remedy the defects consists of the cost to undo what has been improperly done that the cost to remedy the defects will be clearly disproportionate to the probable loss in value to the injured party. Damages based on the cost to remedy the defects would then give the injured party a recovery greatly in excess of the loss in value to him and result in a substantial windfall. Such an award will not be made. It is sometimes said that the award would involve “economic waste,” but this is a misleading expression since an injured party will not, even if awarded an excessive amount of damages, usually pay to have the defects remedied if to do so will cost him more than the resulting increase in value to him. If an award based on the cost to remedy the defects would clearly be excessive and the injured party does not prove the actual loss in value to him, damages will be based instead on the difference between the market price that the property would have had without the defects and the market price of the property with the defects. This diminution in market price is the least possible loss in value to the injured party, since he could always sell the property on the market even if it had no special value to him.

Pennsylvania courts, consistently therewith, have generally allowed damages for incomplete or defective performance of a building contract to be measured by the cost of completing the work or correcting the defects by another contractor. See, e.g.: Ecksel v. Orleans Construction Co., 360 Pa.Super. 119, 519 A.2d 1021 (1987); Steinhauer v. Wilson, 336 Pa.Super. 155, 485 A.2d 477 (1984); Brourman v. Bova, 198 Pa.Super. 279, 182 A.2d 245 (1962). It is only where the cost of completing performance or of remedying the defects is clearly disproportionate to the probable loss in value to the injured party that damages will be measured by the difference between the market price that the property would have had without the defects and the market price of the property with the defects. Although articulating the rule in a slightly different manner, the Court acknowledged and followed the same principle in Gadbois v. Leb-Co. Builders, Inc., 312 Pa.Super. 144, 458 A.2d 555 (1983). Where the cost of remedying the defects in construction is not clearly disproportionate to the probable loss in value to the injured party, the breaching contractor cannot require that the injured party’s damages be measured by the difference between the market price of the property without the defects and the price of the property with the defects.

The plaintiff-appellees in this case sought to recover damages measured by the cost of correcting the defects in the construction work performed by the defendant-appellant. They introduced evidence that the cost of correcting the defects would be $20,574.11. Appellant offered no evidence regarding the cost of making such repairs. Instead, appellant produced the testimony of a real estate appraiser whose opinion was that the market value of the residence would have been two thousand, five hundred ($2,500) dollars greater if it had been constructed in accordanee with the contract. The jury awarded damages of fifteen thousand ($15,000) dollars. Appellant contends that in the absence of evidence to contradict the testimony of its real estate appraiser, the jury could not properly award damages in excess of two thousand, five hundred ($2,500) dollars. We disagree.

Factual determinations and issues of credibility of witnesses are left to the jury as factfinder. Williams v. Dulaney, 331 Pa.Super. 373, 379, 480 A.2d 1080, 1083 (1984). As such, the jury is free to believe all, some or none of a witness’s testimony. Glider v. Commonwealth, Department of Highways, 435 Pa. 140, 146, 255 A.2d 542, 545 (1969); Miller v. C.P. Centers, Inc., 334 Pa.Super. 623, 629, 483 A.2d 912, 915 (1984). It is not bound by expert opinion as to value of property, although it must make its determinations based on the evidence which has been presented rather than on mere conjecture. Glider, supra 435 Pa. at 146, 255 A.2d at 545; Semasek v. Semasek, 509 Pa. 282, 288, 502 A.2d 109, 112 (1985); Mellon Bank (East) National Ass’n. v. Pa. Restaurant of A.B.E., Inc., 364 Pa.Super. 567, 570, 528 A.2d 654, 655 (1987). In the instant case, appellant’s appraiser testified that the difference in market values was, in his opinion, $2,500.00. However, he admitted that his opinion as to damages failed to consider certain aspects of the house which had been contracted for but not received by plaintiff-appellees. These included, inter alia, the failure of appellant to construct a pantry which was to be added to the kitchen area and its failure to construct extended roof overhangs and finished archways between the rooms. These did not affect market value, appellant’s expert witness opined, because they were merely a matter of buyer preference. The plaintiff-appellees had contracted for these things, however, and they clearly had value to them. The weight to be accorded to the expert’s opinion, therefore, was for the jury to determine. The jury was not compelled to accept the same or in reliance thereon conclude that the cost of repairing the defects in construction was disproportionate to the loss of value to plaintiffs because of such defects.

The grant of a new trial on the ground that a verdict is excessive and contrary to the weight of the evidence is proper only when the verdict is so contrary to the weight of the evidence that it shocks one’s sense of justice and makes a new trial imperative so that right may be given another opportunity to prevail. Burrell v. Philadelphia Electric Co., 438 Pa. 286, 289, 265 A.2d 516, 518 (1970); Phillips v. Schoenberger, 369 Pa.Super. 52, 57, 534 A.2d 1075, 1077 (1987); Bohner v. Stine, 316 Pa.Super. 426, 436, 463 A.2d 438, 443 (1983); Yandrich v. Radic, 291 Pa.Super. 75, 79, 435 A.2d 226, 228 (1981), appeal dismissed, 499 Pa. 271, 453 A.2d 304 (1982). The trial court did not find the amount of the verdict shocking and denied appellant’s motion for new trial. We perceive therein no abuse of discretion. Our review of the record also does not disclose that the award of damages was so disproportionate to the loss of value sustained by plaintiff-appellees as to result in a windfall to them.

Appellant argues, however, that the jury had no evidence on which to base a finding that the difference in market values of the residence defectively constructed and one completed according to the terms of the contract was fifteen thousand ($15,000) dollars. While this is technically correct, it does not impair the validity of the jury’s finding that appellant’s damages were in the amount of fifteen thousand ($15,000) dollars. We interpret the jury’s finding as signifying that the cost of repairs, as awarded by the jury and fully supported by competent evidence, was not disproportionate to the loss of value to the plaintiff-appellees.

Appellant also contends that the trial court erred when it allowed plaintiffs’ expert to testify to the cost of making repairs after it became apparent that the witness had relied in part on prices contained in an insurance guide list. The price information, the witness said, was generally used throughout the industry. Although the published guidelines were not themselves admissible as substantive evidence, it does not follow that it was improper for a duly qualified expert to use accepted authorities to assist him in formulating his opinion. See: Kearns by Kearns v. DeHaas, 377 Pa.Super. 200, 209, 546 A.2d 1226, 1233 (1988), appeal denied, — Pa. —, 559 A.2d 527 (1989); Steinhauer v. Wilson, supra 336 Pa.Super. at 158, 485 A.2d at 479 (1984); McDonough v. U.S. Steel Corp., 228 Pa.Super. 268, 272 n. 1, 324 A.2d 542, 544 n. 1 (1974). The witness, an expert in the construction and repair of residential houses, testified that he routinely used industry guidelines to make estimates in his own construction and repair business, and that he had considered them but had formulated his own opinion, based on his own costs of labor and materials, in estimating the cost of making necessary repairs to the home of the plaintiff-appellees. The trial court did not err in allowing him to testify to his estimate of such costs.

Finally, appellant argues that it was error to allow its expert to be asked on cross-examination whether the witness had been employed by appellant on other occasions. We find no merit in appellant’s argument. A party is always entitled to explore the credibility of a witness and to expose any bias or interest which might affect the witness’s testimony. Downey v. Weston, 451 Pa. 259, 301 A.2d 635 (1973); Pittsburgh National Bank v. Mutual Life Insurance Co. of N.Y., 273 Pa.Super. 592, 417 A.2d 1206 (1980), aff'd, 493 Pa. 96, 425 A.2d 383 (1981). The witness, in this case, testified that he had been employed as an expert by appellant on one prior occasion. This was proper cross-examination. There was neither error nor prejudice in the jury’s hearing such testimony.

Judgment affirmed.


author: ROWLEY, Judge: WIEAND, Judge,

text:
    562 A.2d 1375
    In re ADOPTION OF Melanie Lynn HESS and Matthew James Hess. Appeal of Carol HESS and David Hess.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1988.
    Filed July 17, 1989.
    Reargument Denied Sept. 5, 1989.

      Elizabeth A. Hambrick-Stowe, Lancaster, for appellant.
    William C. Crosswell, Lancaster, for Family & Children Services, Participating Party.
    Before ROWLEY, WIEAND and BECK, JJ.
   ROWLEY, Judge:

This is an appeal from an order sustaining preliminary objections and dismissing a complaint for custody and a petition to intervene in and stay adoption proceedings. At issue on this appeal are the rights of proposed adoptees when someone other than the proposed adoptive parents brings to the court’s attention before the adoption is decreed that the best interests of the proposed adoptees may not lie in adoption by the proposed adoptive parents. By refusing to permit appellants to intervene in the adoption proceedings and by refusing to give any meaningful consideration to their petition for custody, the trial court denied the proposed adoptees their right to have their “best interests” determined upon a consideration of all relevant facts. We reverse and remand for further proceedings.

The factual background of this case as averred in the Complaint for Custody and the Petition to Intervene and Stay, as well as in the affidavit attached thereto, is as follows. The proposed adoptive children, Melanie Hess and Matthew Hess, whose custody is in issue in the present case, are a sister and brother who at the time of the filing of the complaint for custody in this case were five and four years old respectively. They also have four other siblings who are not involved in the present proceedings.

During their lives, Melanie and Matthew, the natural parents of Melanie and Matthew, as well as the other four siblings of Melanie and Matthew, lived with their grandparents, the appellants herein, for various periods of time because the natural parents had difficulty in obtaining suitable housing for themselves and their six children. During much of this time, the grandmother was the primary caretaker of all of the children.

In June of 1985, the natural parents advised the grandparents that they had found suitable housing, and therefore removed all six children from the grandparents’ home. The grandparents later learned that the six children had been placed with Lancaster County Children and Youth Social Service Agency (Children and Youth). The grandparents then worked with Children and Youth, and were granted custody of three of the children (not including the two involved in this case) in October 1985. So long as the other three children remained in custody of Children and Youth, the grandparents took the three children in their custody to visit with their siblings regularly.

In July 1986, Melanie and Matthew were returned to their natural parents, and in December 1987, the sixth child was placed in custody of the grandparents. In the spring of 1987, Melanie and Matthew were again taken from the natural parents and placed in the custody of Children and Youth. Upon learning of this, the grandparents contacted Children and Youth and obtained physical custody of Melanie and Matthew. One day shortly thereafter, the natural father of the children said that he was going to take Melanie and Matthew out for breakfast. Instead, he took them to Children and Family Services of Lancaster County (the Agency). Upon learning this fact, the grandparents contacted the Agency and advised it of their willingness and ability to care for Melanie and Matthew, “as a family together with their sisters,” but the Agency refused even to discuss the children with the grandparents and the children were never returned to them. Instead, the natural parents voluntarily relinquished their parental rights to Melanie and Matthew. A decree terminating their parental rights was entered pursuant to 23 Pa.C.S. § 2521, custody of Melanie and Matthew was given to the Agency, and the Agency placed the children with proposed adoptive parents who filed a petition for adoption.

When the grandparents, who by this time had complete legal and physical custody of the siblings of Melanie and Matthew, learned that a notice of intent to adopt had been filed, they filed the instant Complaint for Custody and Petition to Intervene and Stay the adoption proceedings. The Agency filed preliminary objections in the nature of a demurrer and alleged that the grandparents lacked the capacity to sue. In sustaining the preliminary objections and ordering the complaint and petition to be dismissed with prejudice, the trial court held that the grandparents are not parties in interest in the adoption proceedings, and therefore have no right to appear during the pendency of the adoption proceedings and demand custody or visitation. The grandparents have appealed from this order.

While it is clear from the trial court’s disposition of the custody complaint and the petition to intervene in and stay the adoption proceedings that it perceived the critical issue in this case to be the rights of the grandparents, and while the Agency follows this analysis in the present appeal, the dispositive factor in this case must be the rights of the children whose BEST interests the court must determine in the adoption proceeding. As this Court stated in Matter of Adoption of Sturgeon, 300 Pa.Super. 92, 107, 445 A.2d 1314, 1321 (1982):

The law as to adoption in Pennsylvania is well-settled: a child may be adopted if its parents have had their parental rights terminated, either by consent or involuntarily. Once this prior adjudication has been made and the rights of the natural parents are no more, the best interest of the child becomes the criterion by which a court must be guided.

(Emphasis in original). Applying this standard to the present case, we conclude that it was an abuse of discretion not to grant the Petition to Intervene and Stay and to dismiss summarily the Complaint for Custody without a hearing on the basis that the grandparents have no right to file such a complaint or petition once a notice of intent to adopt has been filed.

The trial court’s dismissal of the Complaint for Custody as well as the Petition to Intervene and Stay was based on the conclusion that appellants had no right to intervene in the adoption proceedings or interfere with them, by filing a separate Complaint for Custody, because the rights of the children’s parents had been terminated. Intervention by a party shall be permitted however, if “such person could have joined as an original party in the action or could have been joined therein.” Pa.R.C.P. 2327(3). Our scope of review of an order granting or denying a petition to intervene is limited, and we will reverse the trial court’s decision only where there has been a manifest abuse of discretion. Wilson v. State Farm Mutual Automobile Ins. Co., 512 Pa. 486, 517 A.2d 944 (1986). Therefore, in order to decide whether the trial court’s order dismissing the Complaint for Custody and the Petition to Intervene and Stay was proper, we must determine whether the trial court abused its discretion in deciding that appellants could not, at a minimum, have been joined in the adoption proceedings.

The Adoption Act makes clear that the natural parents whose rights have been terminated may not participate in the adoption proceedings and do not need to receive notice of the adoption proceedings. 23 Pa.C.S. § 2521(a). However, the Adoption Act does not preclude other relatives of the child from participating in adoption proceedings after the rights of the child’s parents have been terminated and before a final decree of adoption has been entered. Nor does it preclude other relatives from seeking to enforce rights they may have in connection with the child. On the contrary, a statute expressly provides that biological, or non-biological, grandparents continue to have the right to seek partial custody and visitation with a grandchild in certain circumstances after the parents’ rights have been terminated and until the child is adopted. See 23 Pa.C.S. §§ 5311-5314. The Adoption Act also not only does not prohibit biological relatives from filing a petition for adoption after parental rights have been terminated, but expressly excuses certain biological relatives, including grandparents, from the requirement of filing a “Report of Intention to Adopt” when they have custody of the biologically-related child whom they want to adopt. 23 Pa.C.S. § 2531(c).

That a decree terminating parental rights affects only the rights of the parents of a child, and not other relations of the child, is especially apparent when one considers that in many instances where the natural parents’ rights have been terminated or where the natural parents have died, it is relations of the child who obtain custody of the child and/or adopt the child. Thus, while the Adoption Act completely and irrevocably severs any legal relationship between the parent and child, the Act does not necessarily sever the relationship between the child and relatives of the child other than the child’s natural parents.

In addition to the absence of any prohibition in the Adoption Act of relations, other than a natural parent whose rights have been terminated, participating in the adoption proceedings, the Act affirmatively provides that “[n]otice of the hearing [on the adoption petition] shall be given to all persons whose consents are required and to such other persons as the court shall direct.” 23 Pa.C.S. § 2721 (emphasis added.) By including the phrase “such other persons as the court shall direct,” the legislature manifested its intent that there would be some circumstances in which the court should order notice of adoption proceedings to persons other than those required to give their consent under the Act. Such a construction of the Adoption Act is required by the Statutory Construction Act which directs that we are to give effect to all words in a statute, 1 Pa.C.S. § 1921(a).

Both the Agency and the trial court have taken the position that the appellants have no interest whatsoever in the present case and that any ideas which appellants might have concerning the best interests of the children can be ignored. However, the concept that an agency alone can determine, with unfettered discretion, what it perceives to be the best interests of a child in its custody while disregarding assertions by others of different “best interests” of the child, and that it is appropriate for the court summarily to refuse to hear and consider claims concerning the best interests of a child where adoption proceedings are pending in its court, is contrary to the law of this Commonwealth.

In Matter of Adoption of Sturgeon, 300 Pa.Super. 92, 445 A.2d 1314 (1982), this Court examined the nature of the responsibility of the Commonwealth in adoption cases, and concluded that the Commonwealth, in the guise of both the court and the social service agency having custody of the child, bears a very heavy responsibility to the child. Sturgeon involved contemporaneous claims for adoption of a child by two different pairs of prospective adoptive parents, the Scotts and the Becks, both of which had been foster parents for the child, as selected by the Clearfield County Children and Youth Services who had legal custody of the child. When the Scotts filed a petition to adopt the child in Clearfield County, the Clearfield County court held hearings and entered an order directing the Clearfield Agency to return the child to the Scotts for a period of six months, after which the Court would decide the Scotts’ adoption petition. The Becks, however, who had been given physical custody of the child by the Agency at this time, refused to relinquish physical custody to the Agency. Among various other petitions and pleadings which they filed, the Becks then filed both a petition for adoption and a petition for custody in Venango County, asserting that the child’s best interests were to remain with the Becks. The Venango County Court, following hearings, entered an order awarding custody of the child to the Becks, but postponed the resolution of the Becks’ adoption petition pending the appeal from the Venango County court’s order awarding custody to the Becks.

On appeal, the court noted that the case had to be considered as an adoption case, and not a custody case. To that end, the court stated,

From the moment that the State, in the guise of the court and the agency, assumed the custody of this child, it also assumed an obligation to exercise its powers in [the child’s] best interests. This was the sole standard for any decision on his adoption, and it is one that should be applied on full facts elicited during hearings in which all pertinent facts are placed before the court.

Sturgeon, Id., 300 Pa.Superior Ct. at 108, 445 A.2d at 1321-1322 (emphasis added). The Court affirmed the Venango County court’s order stating:

when the Becks turned to the court of their own county alleging that [the child’s] best interest lay in his adoption by them, the Venango County Court was correct in its decision to accept the case and to base its conclusions on full participation of all interested parties with a view to discovering the best interests of the child [ ].

Id., 300 Pa.Superior Ct. at 110, 445 A.2d at 1323 (emphasis added).

This responsibility of the court to consider all relevant evidence in order to assess the best interests of a child whose adoption is pending does not necessarily continue once the court has made a determination of the best interests of the child and has decreed an adoption in accord with that determination. Thus, this Court’s decision in Faust v. Messinger, 345 Pa.Super. 155, 497 A.2d 1351 (1985), is consistent with its holding in Sturgeon.

In Faust, a grandmother filed a petition for custody and a petition to intervene nunc pro tunc in the adoption proceedings of her grandchild one-and-one-half years after the adoption had been decreed. The court denied the petition to intervene and the custody petition. However, at the time the adoption proceedings had been pending, the court, through no apparent fault of its own, had been entirely unaware of the grandmother and her assertion of the best interests of the child. By the time that the court first learned of the grandmother’s interests, the court had already fully satisfied its responsibility to determine the best interests of the child based on all the information known to be available to it when the decision was made.

In the present case, however, a decree of adoption has not yet been entered, and only a notice of intent to adopt has been filed. Therefore, just as in Sturgeon, when the Commonwealth in the person of the Lancaster County Orphans’ Court and the Lancaster County Family and Children’s Services assumed the custody of Melanie and Matthew upon the termination of the parental rights of the children’s natural parents, the Commonwealth, through both the court and the Agency, assumed the awesome and profound responsibility to use their powers in the BEST interests of the children. It is not sufficient that they determine what would be adequate for the children, or what might be reasonable for them. Even a determination of what would be good for the children would fall short of the Commonwealth’s obligation. It is incumbent upon the Commonwealth, once it undertakes the monumental responsibility of deciding permanently the course upon which to set the children’s entire future, to ascertain the paramount interest of the children. Nothing less than a determination of the BEST interests of the children will discharge the Commonwealth from its weighty responsibility to them, and the “BEST interest” standard can only be applied, as the Court emphasized in Sturgeon, on “full facts elicited during hearings in which all pertinent facts are placed before the court.”

In the present case, the appellants have averred in their petition for a stay and in their custody petition that they contacted the Agency, before any notice of intent to adopt was filed, to advise them that they wanted to visit with Melanie and Matthew and that they were willing and able to care for the children. They have also averred that the Agency refused to discuss the placement of the children with them, refused to disclose where the children were staying, and refused to meet with them. The appellants have also averred that it is in the best interest of the children that they be placed with the appellants, who have legal and physical custody of all of Melanie and Matthew’s siblings, and with whom Melanie and Matthew have lived for perhaps as long as four and one-half years.

Aside from the bald assertion that the natural parents of the children, whose parental rights have been terminated, expressed to the Agency that they did not want the children to be placed with their maternal grandmother, there is nothing in the record to indicate why the Agency would not even discuss with the grandparents the possibility of placement with them particularly in light of the fact that they had custody of the siblings of the children involved here. In addition, the record does not show that the Agency provided the court with any information from which the Court could review the decision of the Agency to have nothing whatsoever to do with the grandparents who have always asserted that the best interests of the children is contrary to the Agency’s determination of the best interests of the children. Moreover, when the petition for custody and to intervene was filed, based on assertions of the best interests of the children contrary to that asserted by the Agency, the court refused even to listen to the evidence of the grandparents and put them out of court forever as to the adoption of these children.

Where, as here, a party comes before the court and seeks to intervene in an action to determine the best interests of children in an adoption action and the party avers that the children have periodically in the past lived with the party, that the party has legal custody of all the siblings of the children, that the party is willing and able to care for the children, and that the agency who presently has legal custody of the children refuses to have anything whatsoever to do with the party, and where the party avers that the best interests of the children are contrary to what the agency has advised the court, the court must, in satisfaction of its obligation under Sturgeon to consider upon a full hearing all evidence bearing on the best interests of the children, at least conduct a hearing to determine if there is any merit to the claim of the party concerning the best interests of the children. To summarily order the party out of court is to default on its responsibility to ascertain the BEST interests of the child.

There is also statutory authority for permitting the grandparents in this case to intervene at least to the extent of having the opportunity to present the court with evidence to support their claim of the best interests of the children. Were the present proceedings at the hearing stage of the adoption proceedings, we have no hesitation in concluding that in light of the obligation of the Agency and the Court in adoption proceedings as set forth in Sturgeon, the court would have had the obligation under the notice provisions of 23 Pa.C.S. § 2721, discussed previously, to order that notice of the adoption proceedings be given to the grandparents, and that they be made parties to the adoption proceedings because they claim to have evidence pertaining to the ultimate issue which the court must resolve. The mere fact that in this case the grandparents have moved to intervene before the adoption proceedings have reached the hearing stage has no bearing on the court’s responsibility to consider any and all evidence relating to the best interests of the child before decreeing the child’s adoption. By seeking to intervene prior to the time when we hold that the court would be required to give notice to the grandparents of the hearing, the grandparents may actually enable the court to determine sooner what the best interests of the children are, and thereby have the children placed in a permanent setting sooner.

Not only did the court err in summarily precluding the grandparents in this case from ever presenting the court with an alternative scheme for the best interests of the children, but the Agency, by providing nothing of record to establish that the claim of the grandparents had been considered by it and rejected for reasons related to the best interests of the children (as distinguished from the desires of the natural parents whose rights have been terminated) and by taking the position that the court should summarily deny with prejudice the petition of the grandparents to intervene in the adoption proceedings and to seek custody, has evidenced a blatant disregard for the best interests of the children, which under Sturgeon, supra, requires that the court be provided the most information possible before making a determination of the best interests of the children.

In a similar vein, we also find significant the fact that even on the present appeal, no independent counsel has been appointed to represent the interests of the children. The Adoption Act mandates the appointment of independent counsel to represent the child in an involuntary termination proceeding where the action is being contested. 23 Pa.C.S. § 2313(a). In all other proceedings under the Adoption Act, the court has the discretion to appoint counsel or a guardian ad litem for the child where it is in the best interests of the child,. 23 Pa.C.S. § 2313(a). Because the present action is not a contested involuntary termination proceeding, the trial court was not required to appoint independent counsel for the children. However, the purpose of § 2313(a) is- to ensure that the needs and welfare of a child will be actively advanced by an advocate who owes loyalty only to the child. In re Adoption of N.A.G., 324 Pa.Super. 345, 471 A.2d 871 (1984). Where, as in the present case, there are competing allegations of the best interests of the child, and where the court, without conducting a hearing by which it could receive evidence so that it could make a fully informed determination of the BEST interests of the child, summarily dispenses with one of the competing allegations of the child’s best interests, and where no counsel has been appointed to represent exclusively the child’s interests, we cannot conclude that the BEST interests of the child have necessarily been advocated and determined..

In the present case, by summarily dismissing the appellants’ Complaint for Custody, and by refusing them permission to intervene in the adoption proceedings, thereby precluding from the court’s consideration information which may be relevant to the determination of the best interests of the children, the court has compounded and condoned the failure of the Agency to bring all relevant information concerning the best interests of the children before the court in the adoption proceedings. The court, just as the Agency, has knowingly denied the children their right to have the course of their future determined upon consideration of all relevant information as mandated in Sturgeon. The court has preliminarily barred the presentation of potentially relevant evidence concerning the BEST interests of the children, and has thereby rendered it impossible for it to make a reasoned determination of the children’s BEST interests on the basis of ALL of the possibly relevant evidence bearing on the ultimate and vital issue before it.

By our decision today we are making no assessment of the merits of the grandparents’ claim of the best interests of the children. Upon hearing the evidence which the grandparents have to offer to support their assertions of the best interests of the children, the court may decide that it does not agree with the grandparents’ definition of the best interests of the children, and it may determine that what the Agency advances as being in the best interests of the children is in fact what is BEST for the children. That is a decision which is left to the discretion of the trial court. Our decision today is concerned exclusively with a) the summary rejection by the Court of the grandparents' petition to intervene in the adoption proceedings and for custody solely on the basis that the natural parents’ rights have been terminated and someone else has already filed a notice of intent to adopt, and b) the unsupported, unilateral determination by the agency which purportedly represents the best interests of the children, that the BEST interests of the children can be determined without the court considering the evidence in support of competing claims of the best interests of the children.

Order dismissing petition for custody and denying petition to intervene and stay proceedings is reversed. Case remanded for further proceedings. Jurisdiction relinquished.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

The majority, in its great concern for the rights of biological grandparents, has rewritten the Adoption Law by adding notice and hearing requirements not included by the legislature and has condemned Melanie Lynn and Matthew James Hess to additional years of uncertainty. I respectfully dissent.

The real issue in this appeal is whether a maternal grandmother and step-grandfather (hereinafter “grandparents”) have standing to intervene in proceedings to adopt grandchildren after parental rights to the children have been terminated finally and custody has been awarded to Family and Children’s Service, which has placed the children for adoption. The trial court dismissed the grandparents’ petition to intervene, and the grandparents appealed. I would affirm.

Melanie Lynn Hess (age six) and Matthew James Hess (age five) are children who were born to Tina Marie and Kenneth John Hess, husband and wife. In June, 1987, the children were taken by their parents from the home of David and Carol Hess, the childrens’ grandmother and step-grandfather, where they had been residing with four siblings, and temporarily placed in the custody of Family and Children’s Service. On September 25, 1987, the parents of Melanie and Matthew executed consents to adoption of the children; and thereafter, the agency placed the children in the home of pre-adoptive parents. Reports of intent to adopt were filed on November 6, 1987; and on November 24, 1987, the court terminated the parental rights of Tina Marie and Kenneth John Hess. On March 17, 1988, the grandparents filed a petition to intervene, to stay the adoption proceedings, and to obtain custody of the children. The agency and the prospective adoptive parents filed preliminary objections in which they averred that the grandparents lacked standing to intervene. These preliminary objections were sustained by the court, and the petition to intervene was dismissed.

“The ‘core concept’ in standing questions is whether the person seeking relief is adversely affected or ‘aggrieved’ in any way by the matter which he seeks to challenge through the judicial process. To have standing, the adversely affected party must allege an immediate, direct and substantial injury.” In re Adoption of B.E.W.G., 355 Pa.Super. 554, 560, 513 A.2d 1061, 1064 (1986), quoting 1000 Grandview Assn. v. Mt. Washington Assn., 290 Pa.Super. 365, 367, 434 A.2d 796, 797 (1981). Standing to intervene in a pending action, as pertinent to adoption proceedings, is proper when the petitioner “could have joined as an original party in the action or could have been joined therein” or when “the determination of such action may affect any legally enforceable interest of such [petitioner] whether or not he may be bound by a judgment in the action.” Pa.R. C.P. 2327(3) and (4).

In the instant case, the petitioning grandparents have no legally cognizable interest in the adoption of Melanie and Matthew Hess. The interests of the biological parents were terminated by court decree. The effect of the court’s decree was to terminate also the interests of other biological relatives.

The policy which dictates this apparently harsh result is well established. The entire body of law pertaining to adoption harmonizes in order to place an adopted child in the shoes of a natural child in all legal respects, failing only to alter the biological makeup of the child. The intention and result of the law is to enfold an adopted child in his new family so as to be indistinguishable from his new siblings in every possible respect.
Rights of inheritance are changed; parental and filial rights and duties are altered; birth records are substituted; adoption records are impounded. In every possible respect, all family relationships are thus reestablished within the adopting family and all ties with the natural family are eradicated.

Faust v. Messinger, 345 Pa.Super. 155, 160-161, 497 A.2d 1351, 1353 (1985).

Although the courts of this Commonwealth have not been called upon to consider the rights of grandparents to intervene in adoption proceedings, the courts of other jurisdictions have generally denied intervention by grandparents when at least one of the natural parents is alive and has consented to the adoption. See: Christian Placement Service v. Gordon, 102 N.M. 465, 697 P.2d 148 (1985) (paternal grandmother could not intervene in adoption based on her status as a grandmother after her son’s parental rights had been terminated and the child’s mother had consented to adoption); Krieg v. Glassbum, 419 N.E.2d 1015 (Ind.App. 1981) (grandparents have no standing to intervene in adoption proceedings); Petition of Benavidez, 52 Ill.App.3d 626, 10 IllDec. 362, 367 N.E.2d 971 (1977) (same); Hayes v. Watkins, 163 Ga.App. 589, 295 S.E.2d 556 (1982) (grandparents may not intervene in adoption proceeding where at least one parent is alive and has consented to adoption); Muggenborg v. Kessler, 630 P.2d 1276 (Okla.1981) (consent to adoption by natural parents cannot be defeated by opposition of grandparents). See also: Adoption of D.J.H., 18 Pa.D. & C.3d 424 (Allegheny, 1979) (grandmother may not intervene or inspect adoption records where parental rights have been terminated; grandmother is not a party and her consent to adoption is not required). Compare: In re: Adoption of B.E.W.G., 379 Pa.Super. 264, 549 A.2d 1286 (1988) (grandparents had standing to intervene in adoption proceedings where they had been awarded temporary legal custody and action for permanent legal custody was pending at time when father clandestinely removed children from jurisdiction and surrendered them for adoption in another jurisdiction).

Appellants concede that under the Adoption Act the only consents required for a valid adoption are those of the natural parents. They argue, however, that they were entitled to notice under 23 Pa.C.S. § 2721. This section of the statute provides that “[n]otice of the hearing [on the adoption petition] shall be given to all persons whose consents are required and to such other persons as the court shall direct.” The purpose of notice to additional persons, they argue, is to permit intervention by interested parties. Because grandparents are interested parties, they contend, their petition for intervention should have been allowed.

This argument is not persuasive. The only consents required for the adoption of the children in this case were the consents of the parents and Family and Children’s Service, to whom the court awarded custody of the children after the parental rights had been terminated. Consents to adoption had been executed in writing by the parents, and no attempt had been made to revoke these consents within the forty day waiting period required by 23 Pa.C.S. § 2504(a). Thereafter, Family and Children’s Service petitioned to confirm the parents’ consent; a hearing to determine the validity of the consents was scheduled; and notice thereof was given to the natural parents. When the parents failed to appear, the court took testimony in their absence and entered a decree terminating parental rights and placing the children in the custody of Family and Children’s Service.

Therefore, only the consent of Family and Children’s Service is necessary for adoption. There is no requirement that notice of the adoption proceedings be given to the children’s biological relatives. Similarly, the Act makes no provision for intervention by biological relatives. Their rights, if any, came to an end with the decree terminating the rights of the biological parents. The language of 23 Pa.C.S. § 2721 cannot be interpreted as giving additional rights to biological relatives by implication.

If there is no statutory language granting a specific right to intervene, appellants argue, there is nevertheless a right to intervene which arises from an underlying policy to keep families together. In support of this contention they cite the Juvenile Act, 42 Pa.C.S. § 6301, et seq., which states as its purpose the preservation of family unity; the Children and Minors Act, 23 Pa.C.S. § 5313, which permits partial custody or visitation by grandparents when a child is removed from the grandparents’ home after living there for twelve months or more; and the general policy of the law that, absent compelling reasons, siblings should be raised together. See: Mahoney v. Mahoney, 354 Pa.Super. 585, 512 A.2d 694 (1986). This jgoal of keeping the family together must also be given consideration, they argue, in determining family rights in adoption proceedings. This argument is also unpersuasive.

Both the Children and Minors Act and the Juvenile Act are concerned with children whose parents continue to enjoy parental rights and duties. While parental rights to children continue, the law’s primary goal is to preserve the family unit and keep the members together. The Adoption Act does not share this goal. It is intended to provide a permanent family relationship for children only after the rights of the biological parents have been surrendered, forfeited, or otherwise terminated. To effect this purpose, the Adoption Act severs all biological relationships and creates a new parent/child relationship with a new family and new relatives. There is no place for biological relatives of the child in the scheme of the Adoption Act. See: Faust v. Messinger, supra. Thus, the policies which prompted the Children and Minors Act and the Juvenile Act are entirely different than the goals and purposes of the Adoption Act.

If the Adoption Act does not contemplate them as parties, appellants argue, their right to intervene is nevertheless guaranteed by fundamental constitutional protections. They rely on decisions pertaining to certain aspects of family life which are deemed fundamental. These decisions include: Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (right to procreate is fundamental and cannot be statutorily denied); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) (statute outlawing contraception violates constitutional right to privacy of married couples); and Inez Moore v. City of Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (zoning ordinance allowing only members of nuclear family to reside together violates due process clause of the 14th Amendment). There is no merit in this argument. Although the Supreme Court of the United States has recognized that certain fundamental rights pertain to marriage and the family, in this case those rights were severed voluntarily by the parents. The rights of other biological relatives, being derivative, were also terminated when parental rights were terminated. See: Faust v. Messinger, supra (grandmother’s right to visitation terminated by adoption of grandchild). See also: J. & E. v. M. & F, 157 N.J.Super. 478, 385 A.2d 240 (1978), cert. denied, 77 N.J. 490, 391 A.2d 504. Appellants had not previously sought or been awarded legal custody of Melanie and Matthew, and as grandparents they had not acquired rights which survived the decree terminating the rights of the parents. Also terminated by the court’s termination decree were the rights of other biological relatives, including siblings. Therefore, appellants do not acquire standing to intervene in their own right or by asserting that they are representing the interests of the children’s siblings whom the grandparents have taken into their home and whose custody has been awarded to them.

Similarly, appellants cannot claim standing by asserting that they represent the interests of the children who are about to be adopted. The statute, at 23 Pa.C.S. § 2313, authorizes a court to appoint counsel or a guardian ad litem for the children, but neither the Adoption Act nor any other law bestows upon biological grandparents the right to act on behalf of grandchildren who are not in their custody and whose parents have surrendered them for adoption.

I am constrained to conclude, therefore, that the appellant-grandparents in this case do not have such an interest as will allow them to intervene in a proceeding to adopt children after the rights of the children’s parents have been terminated with the parents’ consent. If the result seems harsh, it is justified by a policy which seeks to serve the best interests of the children by promptly enfolding them in another permanent family relationship with new parents and new relatives.

Appellants contend that it was also error for the trial court to dismiss their request for custody of their grandchildren. Although the appellate courts of this Commonwealth have occasionally affirmed court orders awarding custody of children to their grandparents in order to preserve the family, on all of such occasions the family continued to exist. Here, parental rights have been terminated and, in a legal sense, the rights of biological relatives, being derivative, have been severed. The issue now is one of adoption, not custody. By court order, custody of Melanie and Matthew has been awarded to Family and Children’s Service; and that agency has placed the Children for adoption. Appellants’ attempt to delay the adoption by relitigating custody is untimely and inappropriate. Cf. In re D.K.W., 490 Pa. 134, 142, 415 A.2d 69, 73 (1980) (termination of parental rights under Adoption Act renders moot any custody issues under the Juvenile Act).

I would hold, therefore, that the trial court was correct when it dismissed the petition by the appellant-grandparents to intervene and relitigate custody issues in adoption proceedings, where adoption had been consented to by Family and Children’s Service, the legal custodian of the children, after parental rights had been terminated.

      . It appears that no adoption has yet been decreed.

      . David Hess is the brother of the children’s natural father, and therefore is also the children’s paternal uncle.

      . David and Carol Hess have legal and physical custody of the children’s four sisters pursuant to court orders entered in October of 1985 and October of 1987. Prior to the instant action, no proceedings had ever been initiated by the grandparents to obtain legal custody of Melanie and Matthew.

      . 23 Pa.C.S. § 2101, et seq.

      . The provisions of 23 Pa.C.S. § 2503(b) require that notice of a hearing to terminate parental rights be given to a grandparent when the parent is less than eighteen years of age. In the instant case, both parents were more than eighteen years of age when the consents to adoption were executed.

      . On February 11, 1988, the biological parents signed a statement in which they indicated a preference that the children be adopted by the appellant-grandparents. This, however, came too late. Their parental rights had been finally terminated in November of the prior year.

      . Petitioners do not assert their right to custody of the children under the Children and Minors Act which allows for custody and/or visitation by grandparents, but terminates that right upon adoption of the children. 23 Pa.C.S. §§ 5313 and 5314. Petitioners agree that such a claim, even if successful, would provide only fleeting relief since the children tire on the verge of adoption.

      . In Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980), the Supreme Court awarded custody of small children to maternal grandparents in preference to a father, where the children had resided with their grandparents since birth and had been raised with a half-brother. In In re David L.C., 376 Pa.Super. 615, 546 A.2d 694 (1988), the Superior Court affirmed an order of a trial court which had awarded custody of a young boy to his great-grandmother in preference to a mother, where psychological bonding had taken place between the boy and his great-grandmother, who had cared for him almost continuously since birth, and the mother’s sole purpose in seeking custody had been to surrender the child for closed adoption.