author: BECK, Judge:

text:
    646 A.2d 1246
    Debra A. KELLOGG v. Laurie L. KELLOGG, Linda Francis, and Edward W. Francis. Appeal of Linda FRANCIS and Edward W. Francis.
    Superior Court of Pennsylvania.
    Submitted Dec. 20, 1993.
    Filed Aug. 31, 1994.

      Richard E. Connell, Harrisburg, for appellants.
    Maria P. Cognetti, Harrisburg, for Debra A. Kellogg, appellee.
    Laurie L. Kellogg, appellee, pro se.
    Before BECK, KELLY and JOHNSON, JJ.
   BECK, Judge:

This appeal addresses the requirements for standing of a non-custodial third party vis-a-vis other third parties who have legal and physical custody of the children.

Debra (Debra) and Bruce (Bruce) Kellogg married sometime in the 1970s and had two children, Kevin, now age 19, and Kelly, now age 14. In 1987 the couple divorced and entered into a shared custody arrangement whereby each ex-spouse had custody of Kevin and Kelly for six months a year. After the divorce, Bruce married Laurie Kellogg (Laurie), with whom he also had two children, Kyle, now age 5, and Kristopher, now age 4 (“the boys”). Because Kevin and Kelly spent significant amounts of time in their father’s home, they developed a close relationship with the boys, their younger half-brothers.

In June, 1991 Laurie had her husband Bruce killed. Shortly after Laurie’s arrest, Laurie’s mother, Linda Francis, and stepfather, Edward Francis (the Francises), moved for custody of the boys. With Laurie’s consent, the Francises were awarded legal and physical custody of the boys. Laurie was convicted of Bruce’s murder and sentenced to 25 years to life in prison. In September, 1992, Debra filed a complaint for custody alleging that the Francises were not appropriate substitute parents for the boys and that they were improperly preventing the boys from maintaining a relationship with her children, the boys’ half-siblings.

After hearing the testimony of the parties and a court-appointed psychologist who interviewed Debra, the Francises, and all four children involved, the trial court continued primary custody in the Francises and awarded visitation to Debra. It is clear from the record, specifically the psychologist’s reports, that the Francises were attempting to erase the memory of Bruce from the boys’ lives as well as keep the boys away from their extended family. At all times during this action, the Francises have insisted that Debra does not have standing to seek custody of the boys. The trial court disagreed, and the Francises now appeal the trial judge’s order solely on the standing issue.

In her petition Debra, the appellee, complained that the Francises took the boys to the courthouse for their mother’s sentencing and held up signs calling for Laurie’s release: that the Francises permitted the boys to speak on the telephone to the confessed killer of their father; that the Francises cut off contact between the boys and their half-siblings, and that the grandmother, Linda Francis, was heard telling the boys that their father “deserved to die.” The psychologist’s report supported Debra’s allegations and the trial court found them to be true.

In addition, the trial court specifically found that the grandmother, Linda Francis, was “unimpressive” and that Debra should have custody of the boys. In its opinion, the trial court noted that Linda Francis’s parenting skills were called into question and that the Social Security benefits the boys receive monthly, $1,020.00, were a factor in the Francises’ fight for custody. However, the court felt compelled to continue custody in the Francises because the psychologist believed that moving the boys might cause them emotional distress. It is evident from the record and his opinion that the trial judge carefully weighed the various alternatives in this case and treated the matter with great concern.

The psychologist recommended that Debra be awarded visitation in light of the psychological importance to the boys of the ongoing relationship to the deceased father’s family. The psychologist pointed out that without court intervention the Francises were incapable of fostering such a relationship. The psychologist also stated that the Francises’ attitude toward the boys’ father and the Kellogg family was not in the children’s best interest.

While the merits of Debra’s claim for custody may be compelling, we must focus on whether she had standing to assert custody rights in court.

The question of standing is rooted in the notion that for a party to maintain a challenge to an official order or action, he must be aggrieved in that his rights have been invaded or infringed. The law of standing provides that one cannot evoke the jurisdiction of the court to enforce private rights or to maintain a civil action for the enforcement of such rights, unless he or she has, in an individual or representative capacity, some real interest in the cause of action, or a legal right, title or interest in the subject matter or controversy.

Jackson v. Garland, 424 Pa.Super. 378, 622 A.2d 969, 971 (1993). “An aggrieved party is one who has a direct, immediate, pecuniary and substantial interest in the subject matter of the litigation.” Insilco Corp. v. Rayburn, 374 Pa.Super. 362, 372, 543 A.2d 120 (1988).

In Jackson v. Garland, supra, the primary case upon which the Francises rely, a maternal aunt sought partial custody of her deceased sister’s child. Her petition was opposed by the natural father, who had legal custody of the children although he was incarcerated for killing the natural mother, and the paternal grandparents who had physical custody of the child. A panel of this court found that the maternal aunt lacked standing to proceed. Id. at 382, 622 A.2d at 971.

Jackson, while similar, is not dispositive of the instant case. Jackson involved the rights of a natural father who had legal custody versus the rights of a third party, the maternal aunt. In the instant case the controversy is between two third parties, the grandparents and Debra, the appellee. Here the biological mother has neither legal nor physical custody of the boys and has not responded in any manner to the complaint for custody. We find that these material factual differences make the Jackson case inapposite.

The Francises argue that they are not third parties and that they should be treated as natural parents because they stand in loco parentis to the boys and have assumed parental responsibilities for them. As natural parents, they argue, they cannot be subject to a complaint for custody by Debra under Gradwell v. Strausser, supra. We reject this interpretation of the law. Loco parentis status can accord a person standing, see Gradwell, supra, but the person remains a third party. We can find no authority for the proposition that loco parentis status serves to elevate a third party to natural parent status. We therefore reject the argument in support of granting caretakers like the Francises the rights of natural parents.

In Pennsylvania we find no precedential case or statute addressing directly the standing of a third party seeking custody as against another third party, a non-parent who has both legal and physical custody. Although we begin with the presumption that in custody matters one third party may have standing vis-a-vis another third party, we do not hold that all third parties have standing vis-a-vis other third parties. We hold that for a third party to be accorded standing he or she must prove by clear and convincing evidence that he or she has shown a sustained, substantial and sincere interest in the welfare of the child. The standard we establish protects a child from custody claims by third parties who have not evidenced a strong personal investment in the child. The law cannot expose children who are properly placed in a third party’s custody to potential frivolous custody claims, making their lives vulnerable to disruption and instability. A law suit, even an unsuccessful one, creates an unhealthy environment for a child. Therefore, a third party seeking custody must show more than a passing interest in the child. The petitioner, in order to be awarded standing, must prove by clear and convincing evidence that he or she has shown a sustained, substantial and sincere interest in the welfare of the child.

We are mindful that merely establishing this new standard in the custody arena does not provide litigants or the trial courts with sufficient guidance on how the issue is to be raised, considered or. ultimately determined. Generally, a party to a civil suit raises a claim that an opposing party has no capacity to sue by way of preliminary objection. See Pa.R.C.P. 1028(a)(5). While the rules specific to custody matters do not address the procedure to be followed in a standing challenge, the rules do address the filing of preliminary objections when a question of venue or jurisdiction arises. Pa.R.C.P. 1915.5 provides that a party to a custody action must raise a question of jurisdiction or venue within twenty days of service of the complaint or at the time of the hearing, whichever first occurs.

Like jurisdiction, we believe a standing challenge should be raised within the time period set forth in Rule 1915.5 so as to give a defendant notice of the other party’s intention to object to the action on this ground. Since resolution of the standing issue has the potential to control the outcome of the entire case without the court ever reaching the merits, it is important that the issue be raised as early as possible.

However. Rule 1915.5 also explicitly states that the filing of a preliminary objection shall not delay the custody hearing. It is clear from this rule and others that custody actions are to be resolved as promptly as possible. See e.g.. Pa.R.C.P. 1915.10(b) (no post-trial litigation required in custody actions). In keeping with this goal, we believe it is best that standing challenges serve in no way to delay a custody matter. The custody hearing should proceed as scheduled despite the filing of a preliminary objection based on lack of standing.

Once a hearing has commenced, a trial court may make the standing determination at any time, depending on the particular facts and circumstances before it. For instance, it may become clear to the trial judge rather quickly that the person seeking custody is a virtual stranger to the child or children at issue. In that case, it would be appropriate for the trial judge to deny standing to that party promptly. On the other hand, the evidence of a party’s sincere, substantial and sustained interest in a child also may be the best evidence that the party is entitled to custody. In such a case, it would be appropriate for the trial court to allow the entire custody hearing to proceed and to make his or her ruling on the standing issue at the hearing’s end. A trial judge always has been accorded the discretion of determining the order of evidence in any particular case; we see no reason to disturb that discretion, particularly since the facts and circumstances of these types of cases greatly vary from one matter to another.

Once the trial court determination is made, it will be reviewed by this court in the same manner that we review any such determination, that is, under an abuse of discretion or error of law standard. As with all rulings made by a trial court, the decision can be reviewed by an appellate court through careful analysis of the evidence of record.

The question becomes then, whether the evidence here was sufficient to establish that Debra showed a sincere and sustained interest in the boys. The record reveals that she did. She sought to foster a healthy relationship between the boys and her own children, despite the fact that she was divorced from Bruce, their father. She saw the boys on a regular basis when picking up her own children after school. She played with the boys in their home on a regular basis. Debra’s testimony regarding her relationship with the boys, which was credited by the court, supports a finding by clear and convincing evidence that she has always shown and continues to show a genuine interest in the welfare of these children. It was indeed proper, therefore, for the trial court to accord Debra standing in this custody action.

Order affirmed.

      . In cases involving child custody the traditional principles of standing are modified. The standing analysis considers the relationship of the parties asserting standing. Thus, a third party may have standing vis-avis another third party but may not have standing vis-a-vis a natural parent. See Gradwell v. Strausser, 416 Pa.Super. 118, 610 A.2d 999 (1992) (third parties lack standing to seek custody against natural parents absent a finding of loco parentis). See also Rosado v. Diaz, 425 Pa.Super. 155, 624 A.2d 193 (1993).

      . The Jackson court concluded that, where a parent is deceased, standing to seek custody of that parent’s children is accorded onljj, to lineal ascendents. However, the Jackson holding is limited to third parties asserting custody against a natural parent. The broad language relating to standing in Jackson is dicta except as it applies to a third patty asserting rights against a natural parent.

      . As previously noted, Bruce, the natural father, is deceased. Laurie, the natural mother, is incarcerated for his murder. While Laurie initially was made a defendant to the case, she has not responded to the complaint nor has she or her representative appeared before the court to present a position. The Francises alone, as legal and physical custodians, have defended the matter from its inception.

      . Research reveals that there are cases wherein a third party has sought custody of a child who is in the custody of another third party. In In Interest of Tremayne Quame Idress R., 286 Pa.Super. 480, 429 A.2d 40 (1981), a foster mother and maternal grandmother both sought custody of a child. The trial court ruled that the foster mother should be awarded custody and a panel of this court found no abuse of discretion in that decision and affirmed. While the court discussed the "equally allocated burden of proof” in a custody dispute between two third parties, it did not address the standing issue.

      . Granting a party standing merely gives the party a personal interest in the procedure and outcome of the litigation and in no way implicates the ultimate merits of the case.


source: Caselaw Access Project

author: DEL SOLE, Judge: MONTGOMERY, Judge,

license: Public Domain

text:
    646 A.2d 1251
    Nancy L. GARMAN, Appellee, v. Richard G. GARMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 10, 1994.
    Filed Aug. 23, 1994.
    Petition for Allowance of Appeal Denied Dec. 7, 1994.

      Richard G. Garman, appellant, pro se.
    J. Palmer Lockard, Harrisburg, for appellee.
    Before McEWEN, DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

Richard G. Garman and Nancy L. Garman were married in 1987. At the time of the marriage, Appellee had an eight year old son, Christopher. Both parties acknowledge Appellant is not the biological or adoptive father of Christopher. A daughter was born to the parties marriage later in 1987.

In an attempt to facilitate familial harmony, Appellee and Appellant decided to change Christopher’s surname to Gar-man. To effectuate this name change, Appellant signed a affidavit in 1990 stating he was Christopher’s natural father. Although executing the name change- affidavit, Appellant never formally adopted Christopher.

The parties separated in 1991, and Appellee filed a complaint against Appellant seeking child support for Christopher and their daughter. Both parties attended the initial support conference unrepresented by counsel. There Appellant signed an Acknowledgement of Paternity form stating he was Christopher’s father. Appellant now vigorously asserts he was not properly informed of the form’s significance. A support order ' was issued and became final when Appellant, under advise of counsel, chose not to file exceptions.

Appellant petitioned to decrease the Order in May of 1992, averring for the first time that Christopher was not his son and, also, that Appellee’s income had substantially increased. At the support conference, Appellee readily admitted Appellant was not Christopher’s father. Nonetheless, the hearing officer recommended Appellant’s request for modification be denied based wholly on the fact paternity had been acknowledged at the first conference. An order denying Appellant’s modification was issued on July 10, 1992. The following day, July 11, 1992, Appellee voluntarily requested Christopher be removed from the Support Order. Accordingly, an order was issued releasing Appellant from his court-ordered obligation to support Christopher.

Appellant then filed a Motion to Vacate Acknowledgment of Paternity. However, following a November 10, 1992 hearing, Appellant’s motion was dismissed by the Court of Common Pleas of Dauphin County as moot based on the fact Christopher was no longer included in the support order.

Inexplicably, Appellee filed a Petition requesting Christopher be returned to the Support Order on November 17,1992. Subsequently, a conference was held resulting in a recommendation that Christopher be added to the support order. An order reestablishing Appellant’s duty to support Christopher was issued and Appellant sought a de novo hearing before the Court of Common Pleas. The Court concluded that the prior acknowledgement of paternity at the time of the initial support conference and order, which was not appealed, precluded the current challenge to paternity. By doing so, the court denied Appellant’s request for relief from paying child support for his former stepson.

On appeal, Appellant contends he should not be obligated to pay child support for his former stepson following separation from his wife when all parties involved in the proceedings fully acknowledge that Appellant is neither the natural nor adoptive father of the child.

It is well settled that no legal duty rests upon the stepparent to support a stepchild after the termination of the marriage. McNutt v. McNutt, 344 Pa.Super. 321, 323, 496 A.2d 816, 817 (1985); Klein v. Sarubin, 324 Pa.Super. 363, 367, 471 A.2d 881, 883 (1984). Rather, an absolute and affirmative duty rests with the natural parent to properly provide the requisite support. DeNomme v. DeNomme, 375 Pa.Super. 212, 216, 544 A.2d 63, 65 (1988) (quoting Conway v. Dana, 456 Pa. 536, 538, 318 A.2d 324, 325 (1974)). However, Appellee asserts that these principles of law do not apply because the entrance of a final support order established the paternity of Appellant and this became res judicata when he failed to timely appeal. Appellee concludes that Appellant may no longer raise any of the defenses which should have been addressed at the first support conference.

We disagree. The initial unchallenged support order is not, nor should it be, wholly dispositive of the issue of Appellant’s paternity when considered in connection with the convoluted factual and procedural circumstances unique to this case. Specifically, two facts diminish the significance of that support order. First, the parties agree Appellant is neither the adoptive nor biological father. The record amply supports this agreement. Christopher was eight years old when Appellant and Appellee married. Appellant would have been fifteen years old at the time of Christopher’s birth. Further, the record demonstrates that at no point in time did Appellant ever formally adopt the stepson. Second, Appellee voluntarily requested termination of the initial support order following its issuance. The termination of the child support order at Appellee’s request resulted in the Court of Common Pleas of Dauphin County concluding that Appellant’s Motion to Vacate Acknowledgement of Paternity was moot because Christopher was no longer included in the support order.

Generally, if paternity is initially determined, this court has consistently disallowed subsequent attacks on that determination. Wachter v. Ascero, 379 Pa.Super. 618, 550 A.2d 1019 (1988). However, that general statement of the law is not without exception. Where overriding equities favor the putative father, the courts may overturn an assumed duty of support. See, Commonwealth ex. rel. Gonzalez v. Andreas, 245 Pa.Super. 307, 369 A.2d 416 (1976).

We have held that where the failure to challenge paternity was precipitated by fraud, a putative father will be permitted to question his status under certain circumstances. B.O. v. C.O., 404 Pa.Super. 127, 590 A.2d 313 (1991). In B.O. v. C.O., the fraud was the representation by mother that C.O. was the father of a child born to this unmarried couple. Based on that representation, C.O. acknowledged paternity. More than 30 days later, he sought a termination of support and genetic testing. The testing was done voluntarily and excluded him as the father. The trial court set aside the order and mother appealed claiming that the issue had been decided. We affirmed the trial judge, concluding that the initial representation by mother of C.O.’s paternity would satisfy a finding of fraud, and that the equitable considerations overwhelmingly favored C.O. We went on to state the prohibition against overturning a paternity determination was based on the desire not to interfere with an established family relationship, but where there is no such sense of a parental relationship, courts should not be bound by a fiction.

This court recently reached a similar result in Jefferson v. Perry, 432 Pa.Super. 651, 639 A.2d 830 (1994). There we reversed a trial court’s finding of paternity based on a parent child relationship, where the genetic testing excluded the man as the father. We rejected the argument that the appellant’s delay in challenging paternity was determinative of the matter. We held that the doctrine of equitable estoppel, which serves to prevent a putative father from challenging paternity, is premised on the level of the relationship between that father and child.

In this case, we are of the same view. The record clearly establishes that there is no father child relationship between Appellant and Christopher. Appellee, Christopher’s own biological mother, consistently admitted throughout the course of the proceedings Appellant was not Christopher’s natural or adoptive father. Ironically, Appellee also successfully petitioned the court to terminate Appellant’s obligation to pay child support to Christopher. In so doing, Appellee formally acknowledged the erroneous paternity determination at the support conference.

We also believe that our decision today will serve the needs of our society. Today, step-parents perform a vital role. As appropriately noted in the Court of Common Pleas’ decision, Appellant’s act of serving in loco parentis for Christopher during the marriage to Christopher’s mother should be applauded rather than punished. This court desires to encourage the generous actions of step-parents. Com. ex. rel. McNutt v. McNutt, 344 Pa.Super. 321, 322-24, 496 A.2d 816, 817 (1985). We might encourage the opposite effect by using a technical approach to support law and holding a step-parent responsible following separation for support of a child who was not adopted by that step-parent.

Therefore, we vacate the order of the trial court directing Appellant provide support for Christopher. Case remanded for vacation of the support order, jurisdiction relinquished.

McEWEN, J.. concurs in the result.

MONTGOMERY, J., files a dissenting statement.

MONTGOMERY, Judge,

dissenting.

I must respectfully dissent. It has long been the law that the failure to appeal a support order conclusively establishes paternity under the doctrine of res judicata. Everett v. Anglemeyer, 425 Pa.Super. 587, 625 A.2d 1252 (1993); Sanders v. Sanders, 384 Pa.Super. 311, 558 A.2d 556 (1989), allowance of appeal denied 525 Pa. 635, 578 A.2d 930 (1990); Manze v. Manze, 362 Pa.Super. 153, 523 A.2d 821 (1987); Commonwealth ex rel. Palchinski v. Palchinski, 253 Pa.Super. 171, 384 A.2d 1285 (1978); Commonwealth v. Nedzwecky, 203 Pa.Super. 179, 199 A.2d 490 (1964). Appellant never filed an appeal from the original support order which was entered on December 19, 1991, so the doctrine of res judicata precludes him from attempting, at this late date, to challenge paternity. Furthermore, an acknowledgement of paternity estops any subsequent attempt to deny paternity. Manze v. Manze, supra. Appellant signed an acknowledgement which specifically advised appellant that he was waiving his right to a trial on the issue of paternity and his right to representation by counsel. In addition, in the instant case, appellant had his name added to Christopher’s birth certificate by swearing under oath that he was Christopher’s biological father. I recognize the legal principle that where the failure to challenge paternity was precipitated by fraud, a putative father may be permitted to challenge paternity at a later date. B.O. v. C.O., 404 Pa.Super. 127, 590 A.2d 313 (1991). I cannot find, on this record, however that appellant’s failure to challenge paternity after the entry of the first support order, his acknowledgement of paternity, or his sworn statement of paternity in order to add his name to Christopher’s birth certificate were precipitated by fraud.

The elements of fraud are a misrepresentation, a fraudulent utterance thereof, an intention that appellant would thereby be induced to act, justifiable reliance by appellant on the misrepresentation, and damage to appellant as a result. Id. There was no misrepresentation that appellant was the biological father of Christopher, nor was there any other fraudulent utterance which was made to induce appellant to act or rely thereon. Id. Rather, appellant freely admits that he took the actions he did in order to keep peace in the family.

Although I agree fully with the majority that this court should encourage rather than punish step-parents when they take an active role, either emotionally or financially, in a stepchild’s life, I believe that appellant has gone far beyond this stage by twice acknowledging that he is Christopher’s biological father. Moreover, although I sympathize with appellant’s argument that he should not be required to support a child who is clearly not his biological child, I cannot help but point out that appellant, by his own actions, has brought about this result. Appellant cannot expect this, or any other court, to relieve him from taking responsibility for his own acts.

I would therefore affirm the trial court’s order.


author: HOFFMAN, Judge:

text:
    646 A.2d 1254
    Lorraine R. MARCH, Appellant, v. PARADISE MUTUAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued April 27, 1994.
    Filed July 11, 1994.
    Reargument Denied Sept. 8, 1994.

      Joseph A. Zinstein, Philadelphia, for appellant.
    Gordon Erdenberger, Doylestown, for appellee.
    Before McEWEN, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the October 26, 1993 order granting appellee’s, Paradise Mutual Insurance Company, motion for summary judgment. Appellant, Lorraine R. March, presents the following questions for our review:

I. Whether a genuine issue of material fact exists as to whether [appellee] acted in bad faith toward [appellant], which under Pennsylvania law would preclude [appellee] from asserting the insurance policy’s one-year suit limitation provision.

II. Whether [appellant’s] cause of action under 42 Pa. C.S.A. § 8371 for [appellee’s] bad faith conduct in adjusting [appellant’s] property damage claim is subject to the insurance policy’s one-year suit limitation provision.

Appellant’s Brief at 3. For the reasons set forth below, we affirm in part and reverse in part.

The relevant facts, as set forth by the trial court, are as follows:

[Appellant] sued her insurance company [hereinafter “appellee”] for claims under her policy for water damage alleged to have occurred on May 12, 1991 and wind damage alleged to have occurred on May 28, 1991. The suit was instituted on November 12, 1992, more than one year after the last alleged occurrence. The policy provided on page 8, paragraph 8 thereof, “Suit Against Us. No action will be brought unless ... the action is started within one year after the occurrence causing loss or damage.”
[Appellee] pled Statute of Limitations in its New Matter. Thereafter, a motion for summary judgment was filed by [appellee] and such summary judgment was granted on October 26, 1993. This appeal followed.

Trial Court Opinion, January 3, 1994, at 1.

Appellant first contends that as appellee engaged in bad faith in investigating appellant’s insurance claims, appellee is estopped from relying upon the one-year statute of limitations clause in the insurance policy in its request for summary judgment regarding appellant’s claim for coverage under the insurance policy. See Diamon v. Penn Mut. Fire Ins. Co., 247 Pa.Super. 534, 553-54, 372 A.2d 1218. 1227-28 (1977) (where an insurer fails to investigate an insured’s elaim with reasonable care and in good faith, the insurer will be estopped from relying upon the statute of limitations clause in the insurance contract to dismiss the insured’s claim). We disagree.

It is well-settled that the defense of estoppel is an affirmative defense which must be pleaded as a new matter. See Pa.R.C.P. 1030. As appellant has not raised her defense of estoppel by way of new matter, it is waived and cannot now be asserted as grounds for reversal. See, e.g., Iorfida v. Mary Robert Realty Co., Inc., 372 Pa.Super. 170, 176, 539 A.2d 383; 386 (1988) (any affirmative defense which is not raised as a new matter will be considered waived pursuant to Pa.R.C.P. 1032), appeal denied, 520 Pa. 576, 549 A.2d 136 (1988); Pa. R.C.P. 1032. Accordingly, as appellant’s filing of her claim for coverage did not comply with the one-year statute of limitations clause in the insurance policy, it was properly dismissed.

Appellant next contends that as her claim under 42 Pa.C.S. § 8371 is not subject to the insurance policy’s one-year suit limitation, the trial court erred in granting summary judgment in favor of appellee on that claim. We agree.

On February 7, 1990, the Pennsylvania Legislature promulgated 42 Pa.C.S.A. § 8371 creating a new cause of action in Pennsylvania insurance law for “bad faith.” Specifically, section 8371 provides as follows:

In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:
(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of the interest plus 3%.
(2) Award punitive damages against the insurer.
(3) Assess court costs and attorney fees against the insurer.

42 Pa.C.S. § 8371.

Appellee claims that as section 8371 provides relief only in actions “arising under” an insurance policy, where an insured’s claim for insurance coverage fails, the insured’s claim under section 8371 must also fail. We disagree. While section 8371 provides relief only in actions “arising under” an insurance policy, the statute does not indicate that success on the bad faith claim is reliant upon the success of the contract claim. As 42 Pa.C.S. § 8371 was promulgated to provide additional relief to insureds and to discourage bad faith practices of insurance companies, we would be reluctant to impose any limitations of claims brought under section 8371 which do not appear in the plain language of the statute. See Twp. of Moon v. Police Officers of Twp. of Moon, 508 Pa. 495, 504, 498 A.2d 1305, 1309 (1985) (“When we are seeking to construe the legislative intent we are instructed to look to the occasion and necessity for the enactment, the circumstances under which it was enacted, the mischief to be remedied and the object to be obtained.”).

Moreover, this court has held that a claim brought under section 8371 is a cause of action which is separate and distinct from the underlying contract claim. See Boring v. Erie Ins. Group, 434 Pa.Super. 40, 641 A.2d 1189 (1994) (where this court held that although appellant’s insurance coverage claim had not yet been decided, as appellant’s bad faith claim was premised upon a statutory provision, 42 Pa.C.S. § 8371, it constituted a clear and distinct cause of action and, therefore, the dismissal of appellant’s section 8371 claim was instantly appealable). See also Okkerse v. Prudential, 425 Pa.Super. 396, 625 A.2d 663 (1993). As this court has found that claims under section 8371 are separate and distinct causes of action and as the language of section 8371 does not indicate that success on the contract claim is a prerequisite to success on the bad faith claim, we find that an insured’s claim for bad faith brought pursuant to section 8371 is independent of the resolution of the underlying contract claim.

In the instant action, appellee’s motion for summary judgment regarding appellant’s claim of bad faith was granted for failure to comply with the one-year limitations clause in the insurance policy. However, as appellant’s bad faith claim brought under 42 Pa.C.S. § 8371 is independent of her contract claim, the bad faith claim is not affected by the one-year limitations period in the insurance contract. Hence, the trial court erred in granting appellee’s motion for summary judgment regarding appellant’s claim of bad faith.

Accordingly, we affirm that part of the trial court’s order granting summary judgment on appellant’s contract claim. However, that part of the trial court’s order granting summary judgment on appellant’s claim of bad faith is reversed. This case is remanded for further proceedings on appellant’s claim of bad faith.

Affirmed in part; reversed and remanded in part; jurisdiction relinquished.

      . We point out that in appellant's November 12, 1992 complaint, appellant requests relief on two causes of action. Specifically, on count I, appellant requests relief under her insurance policy with appellee. On count II, appellant requests punitive damages pursuant to 42 Pa.C.S. § 8371 for appellee’s alleged bad faith in investigating appellant’s coverage claims.

      . Summary judgment was entered in favor of appellee on both the contract claim and the bad faith claim.

      . Rule 1030 provides as follows:
      All affirmative defenses including but not limited to the defenses of accord and satisfaction, arbitration and award, assumption of the risk, consent, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fair comment, fraud, illegality, immunity from suit, impossibility of performance, justification, laches, license, payment, privilege, release, res judicata, statute of frauds, statute of limitations, truth and waiver shall be pleaded in a responsive pleading under the heading "New Matter”. A party may set forth as new matter any other material facts which are not merely denials of the averments of the preceding pleading.

        Id. (emphasis added).

      . We note that as the underlying complaint in Boring was filed before July 16, 1992, and the order appealed from was entered before March 1, 1994, Pennsylvania Rule of Appellate Procedure 341, as amended, did not apply for the purposes of determining the appealability of the section 8371 claim.

      . We also point out that the Federal Courts have consistently held that section 8371 does create a separate and independent cause of action. See Margolies v. State Farm Fire and Cas. Co., 810 F.Supp. 637, 642 (E.D.Pa.1992) ("[E]ven if plaintiffs’ breach of contract claim were barred by the policy’s limitation provision, the § 8371 bad faith claim would survive since it is independent of the underlying claim.”). See also Kauffman v. Aetna Cas. and Sur. Co., 794 F.Supp. 137, 140 (E.D.Pa.1992), reconsideration denied, 91-4450 (E.D.Pa. Sep. 18, 1992); Lombardo v. State Farm Mut. Auto Ins. Co., 800 F.Supp. 208, 214 (E.D.Pa.1992).


author: CIRILLO, Judge:

text:
    646 A.2d 1257
    Stephen F. GUADAGNINO, II, v. Elizabeth MONTIE, Appellant.
    Superior Court of Pennsylvania.
    Argued April 27, 1994.
    Decided Aug. 22, 1994.

      Elizabeth Montie, appellant, pro se.
    Gregory B. Fraser, Warren, for appellee.
    Before ROWLEY, President Judge, and CIRILLO and OLSZEWSKI, JJ.
   CIRILLO, Judge:

Elizabeth Montie (Mother) appeals from an order' entered in the Court of Common Pleas of Warren County awarding primary physical custody of Stephen F. Guadagnino, III (Child) to Stephen F. Guadagnino, II (Father). We affirm.

Mother and Father are the natural parents of Child, who was born on July 9, 1991. Mother and Father have never been married, but resided together for a period of time in 1991. Upon termination of the relationship, temporary physical custody was placed primarily with Mother, with weekly visitation awarded to the Father at the paternal grandparents’ residence in Warren County, Pennsylvania. Father filed a complaint for custody. Prior to the hearing scheduled for August 19, 1992, Mother began the process of moving with Child to Columbus, Ohio. After hearing the testimony of Mother, Father, and the paternal grandmother, the custody mediator found that Mother’s proposed move would not enhance the quality of life for Mother and Child. Rather, the mediator recommended that Child’s best interests would be served by remaining in Warren County, Pennsylvania, or alternatively, in Erie, Pennsylvania, where Child had significant contacts. Furthermore, the mediator’s report set forth: “Should the mother choose to move to Columbus, Ohio, which the Mediator concludes is the move which is least beneficial for the child, the Mediator would recommend that the parties be afforded shared custody with the child spending six months with each parent as the parties may choose.... ”

Mother took exceptions to the mediator’s recommendations and a second hearing was held on October 9, 1992. Between the time the exceptions were taken and the hearing date, Mother moved with Child to Columbus, Ohio. Following the hearing on Mother’s exceptions, President Judge Robert L. Wolfe modified the mediator’s recommendations. Specifically, Judge Wolfe directed that custody would be equally shared for six week periods of time, and that the paternal grandparents would transport the child until such time as Mother secured a means of transportation.

The record reflects that in the months following the October 9, 1992 hearing, Mother attempted to obstruct the transfer of custody, telephoned Father with questions challenging his fitness as a parent, and was, generally, confrontational. As a result, Father filed a petition for contempt. In addition to Father’s request that Mother be found in contempt, the petition also requested an order placing primary physical custody of Child with Father.

A hearing on the petition for contempt was held on September 14, 1993, again before President Judge Wolfe. Finding Mother’s conduct to be in contempt of his prior order, President Judge Wolfe ordered that primary physical custody be transferred to Father, with reasonable, but supervised, visitation accorded to Mother. It was also ordered that Mother be placed in the Warren County Jail, to be released upon Child’s transfer to Father.

Following the contempt hearing, Mother apparently filed a request (although it is not a part of this record) with the Ohio courts to assume jurisdiction of the custody matter. In response to an inquiry by an Ohio Court of Common Pleas judge, and pursuant to a letter of record dated September 23, 1993, President Judge Wolfe declined to relinquish jurisdiction to the Court of Common Pleas of Franklin County, Ohio.

Mother, appealing pro se, has raised five issues for our consideration. Because many of her claims overlap, we have condensed these issues:

(1) Whether the trial court’s order finding Mother in contempt of a prior custody order, and transferring custody to Father, was an abuse of discretion?

(2) Did the trial court err in refusing to relinquish jurisdiction of this matter to Ohio pursuant to the Uniform Child Custody Jurisdiction Act?

In her first issue, Mother argues that the trial court erred in finding her in contempt of the October 9,1992 order. Mother specifically claims that such a conclusion was not supported by evidence of record. Alternatively, Mother contends that, assuming she was in contempt of the October 9, 1992 order, a transfer of custody was not the appropriate sanction for such a violation.

We begin with an analysis of the trial court’s determination that Mother was in contempt of the October 9, 1992 order. A trial court’s finding on a contempt petition will not be disturbed absent an abuse of discretion. Steele v. Steele, 376 Pa.Super. 174, 177-79, 545 A.2d 376, 378 (1988); Kozlowski v. Kozlowski, 362 Pa.Super. 516, 524 A.2d 995 (1987); Mellott v. Mellott, 328 Pa.Super. 200, 476 A.2d 961 (1984). Here, we have reviewed the testimony and can find no reason to characterize the court’s decision on the contempt issue as an abuse of discretion.

The record reflects that, on the day of the October 9, 1992 hearing, Father, along with other members of his family, was to meet Mother and the maternal grandmother in Erie, Pennsylvania so that custody of the child could be transferred to Father. Instead, Mother went to a police station in Erie and claimed that Father was threatening her with guns and knives and was attempting to kidnap her child. As a result, Father’s step-mother, who had gone into the police station while Father waited in the car, was told that unless Father had papers to prove that he had custody rights, there was nothing that the police could do to help. Ultimately, a copy of Judge Wolfe’s order was faxed to the police station, and Mother was forced to relent. On another occasion, Mother and Father had agreed on a meeting date, place, and time for transferring Child to Father. Mother did not show up at the agreed upon transfer point in Lodi, Ohio, where Father waited for an hour and a half before returning home. The next day, after filing a copy of the trial court’s order in an Ohio courthouse, the paternal grandparents, Father’s girlfriend, and Father met Mother in a restaurant parking lot. After a thirty minute confrontation, during which the local police were called, Child was transferred to Father. Additionally, Father testified that he felt that Mother continually opposed his right of access to Child, that she telephoned Father with a frequency that bordered on harassment, and that she was confrontational with Father in front of Child. Accordingly, we find that the trial court did not abuse its discretion in adjudicating Mother in contempt of the October 9, 1992 order.

Mother next argues that, assuming a finding of contempt, such a finding does not warrant a change in custody. Our paramount concern in this case, as in all custody determinations, is that the best interests of the child be served. Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 295, 426 A.2d 555, 557 (1981). Furthermore,

[t]he scope of review of an appellate court reviewing a child custody order is of the broadest type; the appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it.... However, this broad scope of review does not vest in the reviewing court the duty or privilege of making its own independent determination.... Thus, an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court’s factual finding; and thus, represent a gross abuse of discretion.

McMillen v. McMillen, 529 Pa. 198, 202, 602 A.2d 845, 847 (1992) (citations omitted).

In support of her argument, Mother relies primarily upon Lampert v. Lampert, 409 Pa.Super. 552, 598 A.2d 561 (1991). Specifically, she highlights the following language:

The fact that Mother violated the custody order issued by [the trial judge] is, as noted by the trial court, an appropriate foundation for a finding of contempt, however, it cannot be the basis for an award of custody. Rosenberg v. Rosenberg, 350 Pa.Super. 268, 504 A.2d 350 (1986).

Lampert, 409 Pa.Super. at 563, 598 A.2d at 566 (emphasis added). In Lampert, this court went on to point out that the trial court was not the court which made the original custody award, and that the trial court issued its order directing a change in custody without the benefit of a full hearing on the matter. Accordingly, the matter was remanded for a custody hearing so that the trial court judge could be provided with information regarding the parties’ past history, their present circumstances, and their abilities to care for the children. Id. at 566-67, 598 A.2d at 568.

Here, unlike Lampert, President Judge Wolfe had the benefit of presiding over both the October 9, 1992 hearing on Mother’s exceptions, after which the proposed custody schedule was modified, and the September 14, 1993 contempt hearing. In fact, the record reflects that President Judge Wolfe referred back to the testimony of the October 9, 1992 hearing in reaching his conclusions. A review of the transcripts from both hearings reveals adequate information regarding Mother’s and Father’s past history, their present circumstances, and their respective abilities to care for the children. A review of the contempt hearing transcript indicates that the testimony elicited focused primarily on the contempt issue. It was made clear, however, both in Father’s petition for contempt and during the contempt hearing, that Father was also requesting primary custody. Thus, the contempt hearing served a dual purpose. This is evident from the trial judges conclusions:

[T]his Court has listened to testimony that tells the Court that two or three times with the child present you [Mother] have staged a scene, have become disruptive, have not cooperated, have done everything possible to prevent this child from going with the father. The child is two years old, I don’t know of any other case that this Court has had that [there] has been such outrageous contempt.... Now, the Court is not going to impose monetary sanctions, that isn’t the proper remedy. The issue before this Court is the welfare of this child. This child has a right to grow up in a peaceful, proper environment to become a productive citizen. The Court must follow the law concerning that growth, physically, morally, healthwise, mentally and physically. There is no doubt in this Court’s mind if this type of conduct continues this child is going to be psychologically devastated for life and this Court concludes the cause of it is the mother’s attitude and conduct.... The mother has absolutely refused to cooperate without constant effort on behalf of the father and there is nothing in this record that would show that it’s not going to stop in the future.... So the Court does find for all these reasons the Respondent ... is in contempt of the Court order of October 9,1992 and that the only proper remedy can be is that the primary, physical custody of the child is placed with the father.

We find it necessary, at this point, to distinguish this case from Kozlowski v. Kozlowski, 362 Pa.Super. 516, 524 A.2d 995 (1987). There, as in the instant case, the petition filed by the father requested that the mother be found in contempt and that custody be transferred to the father. Separate hearings were held on the contempt issue and the custody issue. When no determination was made after the custody hearing, father filed a brief entitled “Brief in Support of Custody and Petition for Contempt.” In response to this brief, the trial judge combined the actions and issued an order finding the mother in contempt and transferring custody of the children to the father. This court affirmed the finding of contempt but reversed and remanded on the issue of custody. Specifically, this court opined that the wording of the order and opinion evidenced that the change in custody was a sanction for contempt, rather than the carefully weighed and deliberated process that should be taken in a custody hearing. Id. at 519— 20, 524 A.2d at 997. Ultimately, this court concluded:

[T]he trial judge, in his opinion did state what he believed to be in the children’s best interest, however, a thorough analysis of the evidence was clearly lacking. In fact, very few references were made, in the trial court opinion, as to the findings of fact relied upon by that court in rendering its decision. Without a more complete record, and an analysis thereof, it is difficult for this court to arrive at a decision regarding the conclusions drawn by the court below.

Id. at 521, 524 A.2d at 998. Without a more complete record, therefore, this court was not able to arrive at a decision regarding the conclusions drawn by the trial court.

Here, the trial judge’s conclusions refer to the change in custody as “the only proper remedy” for Mother’s contempt. While we disapprove of the trial judge’s choice of words, the record reflects that, unlike Kozlowski there were sufficient facts in the record to substantiate the trial judge’s finding that a change in custody was in the best interests of the child. “A custody order is modifiable without proof of a substantial change in circumstances where such a modification is in the best interests of the child.” McMillen, 529 Pa. at 202, 602 A.2d at 847; see Karis v. Karis, 518 Pa. 601, 544 A.2d 1328 (1988) (eliminating the requirement that a petition for modification of an existing court order must allege a substantial change of circumstance). Additionally, this court has pronounced that a custodial parent’s obstruction of the noncustodial parent’s right to visit a child may serve as a basis for a change in custody. Kozlowski 362 Pa.Super. at 518-20, 524 A.2d at 997 (citing Pamela J.K v. Roger D.J., 277 Pa.Super. 579, 419 A.2d 1301 (1980)).

Specifically, it has been stated that:

When a custodial parent so obstructs the visits between the child and the non-custodial parent that the best interests of the child are no longer being served, a change of custody is warranted. Moreover, an obstruction of the right to visit the child is especially serious where, as in the present case, a court visitation order has been entered. A custodial parent who wilfully ignores a visitation order and obstructs the child’s visits with the non-custodial parent is little different from the parent who ignores a court order awarding custody and by force or trick snatches the child from the other parent. In both instances, extra-legal means are used to defeat the other parent’s established legal rights. Such conduct will not be tolerated by this court.

Pamela J.K, 277 Pa.Super. at 593-94, 419 A.2d at 1309. Clearly, the trial court here was convinced that primary physical custody with Father was in the child’s best interests, and we agree that the record supports this result. McMillen, supra.

Although the procedure by which Father requested a change in custody has not been challenged by Mother, we find that it would be helpful to the outcome of this case to review and distinguish the law on this subject. In Choplosky v. Choplosky, 400 Pa.Super. 590, 584 A.2d 340 (1990), we stated:

[T]he appropriate manner to bring about a change in a custody/visitation Order is by petition for modification, which would follow, generally the procedure under Pa. R.C.P. 1915.3, Commencement of Action. However, this does not prevent the trial court, under appropriate circumstances to alter a custody/visitation Order when it is in the best interest of the child to do so.

Id. at 593-94, 584 A.2d at 341 (emphasis added) (quoting Steele v. Steele, 376 Pa.Super. 174, 545 A.2d 376 (1988)). In Choplosky, the appellant (father) alleged violations by appellee (mother) of their custody agreement; a hearing on appellant’s contempt petition followed. At the conclusion of the contempt hearing, the trial court entered an order modifying the custody agreement so as to grant sole legal custody to Mother. Father appealed, contending that the trial court deprived him of his right to due process by modifying a custody order in the absence of a written petition to do so. This court agreed, holding that while it is generally true that to promote the best interests of the child modification of custody orders may be entertained at any time, courts may not allow parties to forgo general notice requirements which must otherwise be strictly observed. Choplosky, 400 Pa.Super. at 594-96, 584 A.2d at 342; see also Seger v. Seger, 377 Pa.Super. 391, 547 A.2d 424 (1988) (following a hearing on a petition for contempt, trial court lacked authority to modify custody/visitation order absent filing of petition for modification by any party to order); Steele, supra (appropriate manner to bring about change in custody/visitation order is by petition for modification).

While each of the above cited cases was remanded so that the correct procedure could be followed, there is nothing in these cases to suggest that a change in custody was requested along with or in addition to the petitions for contempt. Accordingly, in these cases, unlike the case now before us, there was no notice at the contempt hearings that the custody order itself was at issue until the hearings were underway. Choplosky, supra. There was adequate notice that the custody order would be challenged in the instant case. Here, the trial court had before it the request that custody be transferred, and conducted the “contempt” hearing accordingly; the hearing was tailored to the issues at hand. We do not find it necessary, therefore, to remand for reinstatement of the original custody order so that another hearing can be held on the petition for modification of custody; such action would result in a waste of judicial resources.

Mother next challenges the trial court’s denial of transfer of jurisdiction to Ohio, pursuant to the Uniform Child Custody Jurisdiction Act (UCCJ), 23 Pa.C.S.A. § 5344. When reviewing a trial court’s decision regarding jurisdiction under the UCCJ, the trial court’s decision will not be reversed absent an abuse of discretion. Merman v. Merman, 412 Pa.Super. 247, 603 A.2d 201 (1992); Joselit v. Joselit, 375 Pa.Super. 203, 544 A.2d 59 (1988). We find no reason to disturb the trial court’s decision not to relinquish jurisdiction to the Ohio courts.

Pursuant to section 5344 of the UCCJ, the bases for jurisdiction can roughly be characterized as (1) “home state” jurisdiction, (2) jurisdiction founded upon “significant contacts” among the parties to the custody action and the locale in which the action has been brought, and (3) “parens patriae” jurisdiction. Tettis v. Boyum, 317 Pa.Super. 8, 13-15, 463 A.2d 1056, 1059 (1983). Here, Warren County, Pennsylvania was clearly the appropriate venue when the initial custody complaint was filed; Mother, Father, and Child were all living in Warren County at the time. Following the initial custody action, Child maintained significant contacts with Warren County from October, 1992 to March, 1993, when Mother and Father alternated physical custody of Child on an equal, basis. The paternal grandparents, who have had substantial contacts with Child, also reside in Warren County. Moreover, three different hearings regarding custody have been held in Warren County. Based on these circumstances, we find that Warren County adequately serves as Child’s home state on a part-time basis, and fulfills the significant contacts requirement. The trial court did not abuse its discretion in denying Mother’s request to relinquish jurisdiction.

Accordingly, we affirm the trial court’s order finding Mother in contempt and awarding primary physical custody to Father.

      . The notice of appeal also reflects that, along with the September 14, 1993 order, Mother is also appealing from the order denying the transfer of jurisdiction entered on September 23, 1993.

      . A protection from abuse order was entered against Father on November 8, 1991.

      . In reaching this conclusion, the mediator was guided by Gruber v. Gruber, 400 Pa.Super. 174, 583 A.2d 434 (1990), which sets forth the guidelines under which a parent having primary physical custody of a child may relocate to another jurisdiction.

      . This document, which is labeled "Petition for Contempt,” sets forth numerous allegations and concludes with the following:
      WHEREFORE, Petitioner requests your Honorable Court to enter an Order holding Respondent/mother in contempt and placing primary physical custody of the parties’ minor child with Petitioner, (emphasis added).

      . The Erie police officers also asked Father if he was in possession of any weapons. A police officer himself, Father showed them his service revolver, which was locked in the trunk, along with identification. There were no other weapons in the car.

      . In Rosenberg v. Rosenberg, 350 Pa.Super. 268, 504 A.2d 350 (1986), this court pronounced:
      Willful interference with court ordered visitations, no matter how deplorable, cannot be made the basis for an “automatic” change of custody. "[A] change of custody is just as important to the child and to others as an original award of custody, and the parties should be afforded the same type of hearing on the subsequent application as they are entitled to an original award.”

        Id. at 274, 504 A.2d at 353 (citation omitted).
      Again, the hearings held in this case adequately served to reveal the evidence necessary for both a finding of contempt and change in custody. This is not a case, therefore, where an ordered change in custody was “automatic.”

      . It is apparent that the third basis for jurisdiction is inapplicable to the instant case. The "parens patriae” basis for jurisdiction refers to those situations where a child is abandoned, abused, or dependent.

      . These bases for jurisdiction are derived from 23 Pa.C.S.A. § 5344, which provides, in pertinent part:
      (a) General rule. — A court of this Commonwealth which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
      (1) This Commonwealth:
      (1) is the home state of the child at the time of commencement of the proceeding; or
      (ii) had been the home state of the child within six months before commencement of the proceedings and the child is absent from this Commonwealth because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this Commonwealth;
      (2) it is in the best interest of the child that a court of this Commonwealth assume jurisdiction because:
      (i) the child and his parents, or the child and at least one contestant, have a significant connection with this Commonwealth; and
      (ii) there is available in this Commonwealth substantial evidence concerning the present or future care, protection, training and personal relationships of the child____
      23 Pa.C.S.A. § 5344(a)(1), (2).


author: BROSKY, Judge.

text:
    647 A.2d 212
    COMMONWEALTH of Pennsylvania, Appellant, v. Norman MAYES.
    Superior Court of Pennsylvania.
    Argued May 26, 1994.
    Filed July 14, 1994.
    Reargument Denied Sept. 22, 1994.

      Hugh T. Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Stuart Lev, Asst. Public Defender, Ardmore, for appellee.
    Before CAVANAUGH, CIRILLO and BROSKY, JJ.
   BROSKY, Judge.

The Commonwealth of Pennsylvania appeals from the judgment of sentence imposed by the trial court following appellee Norman Mayes’ January 7, 1993 bench trial convictions of possession of a controlled substance (crack cocaine) and possession with intent to deliver a controlled substance (crack cocaine).

The following facts in the instant case were summarized in the January 28, 1994 trial court opinion of the Honorable D. Webster Keogh of the Court of Common Pleas of Philadelphia County.

On June 24,1992, at approximately 7:55 p.m., while working plainclothes in an unmarked vehicle, Philadelphia Police Officers observed the defendant[-appellee] in the 3100 block of Oakdale Street. He was engaged in a conversation with an unidentified black male when he reached down the front of his pants and removed a clear sandwich bag filled with numerous black-capped vials. At that time he attempted to hand a vial to the unknown male who in exchange had U.S. currency in his hand. Suddenly, someone yelled “5-0” (street term for police) and [appellee] immediately put the bag back in his pants and walked eastbound on Oakdale Street.

The Officers exited their vehicle and stopped [appellee] for investigation at which time they recovered a clear plastic sandwich bag containing sixty-eight (68) clear plastic vials containing an off-white chunky substance with black caps. Also retrieved was $110 U.S. currency in assorted denominations. [Appellee] was subsequently arrested. The total weight of the Crack Cocaine [taken from appellee] was 2.34 grams.

Trial Court Opinion, 1/28/94 at 1-2.

The single criminal complaint filed against appellee stated that appellee possessed and/or possessed with intent to deliver sixty-eight vials of cocaine (with an approximate weight of 3.4 grams). The complaint did not differentiate between possession and possession with intent to deliver; the sixty-eight vials applied equally to each charge. As mentioned in the trial court opinion, supra, the trial court determined at trial that when appellee was arrested in the instant case he possessed 68 vials of crack cocaine (the total weight of the crack cocaine in all of the vials was 2.34 grams). The trial court stated that it found appellee guilty of possession with intent to deliver. N.T., 1/7/93, at 94. Appellee’s counsel then asked the trial court if he could present evidence regarding the portion of the 2.34 grams of crack cocaine that appellee intended to utilize to satisfy his own drug habit [appellee’s counsel stated that he felt it important to raise the issue since if all 2.34 grams were to be considered to have been for sale by appellee then appellee would have been subject to the mandatory minimum sentence at 18 Pa.C.S. § 7508(a)(3)(i)]. The trial court stated, “I will give it a deferred date of February 11[, 1993].” Id. at 95. There was no hearing held on February 11, 1993.

On June 1,1993, after the trial court denied appellee’s post-trial motions, appellee’s sentencing hearing began. Appellee’s counsel stated that he did not intend to present any evidence regarding the amount of crack cocaine that appellee intended only for his personal use; counsel would only present argument. Defense counsel then referred to evidence adduced at trial indicating that at one time appellee was a user of crack cocaine; counsel asked the trial court to consider finding that a portion of the 2.34 grams was for personal use. Counsel stated that he believed that appellee did not deserve the imposition of a mandatory minimum sentence, but, even if one was imposed the trial court should consider incarcerating appellee in a county prison rather than a state prison since (a) appellee had no prior criminal record and had a good employment record; and, (b) appellee had previously given testimony in a murder prosecution, his testimony helped convict that defendant, that defendant and his friends were incarcerated in various state prisons, and, if appellee was to be sent to a state prison (after receiving a mandatory minimum sentence), as opposed to a county prison, then his life could have been endangered. The trial court stated that it still believed that appellee was guilty of possession and possession with intent to deliver cocaine. The trial court then stated that,

I find as a fact that ... you were a user as well as [a seller of cocaine].

I further find as a matter of fact neither beyond a reasonable doubt nor beyond a preponderance that the amount which was possessed with the intent to deliver was necessarily in excess of two grams.

N.T., 6/1/93, at 22. The trial court stated that it was relying upon testimony presented at trial. The trial court then indicated that it was not going to apply the mandatory minimum sentence at 18 Pa.C.S. § 7508(a)(3)(i). The trial court then proceeded to sentence appellee on the possession with intent to deliver conviction to a term of imprisonment of eight to twenty-three months, followed by a consecutive three year period of probation. The Commonwealth then filed the instant appeal, raising the following issue:

Did the sentencing court err when, despite having convicted defendant of possession of more than two grams of cocaine with intent to deliver, it reconsidered its verdict in order to avoid imposing the mandatory minimum sentence required under 18 Pa.C.S.A. § 7508(a)(3)®?

Commonwealth’s Brief at 3. We vacate the judgment of sentence of the trial court and remand for resentencing consistent with the directives contained in this Opinion.

When applying the mandatory sentencing provision at 18 Pa.C.S. § 7508(a)(3)(i) the trial court must wait until the sentencing phase of trial. 18 Pa.C.S. § 75080b) states,

Proof of sentencing. — Provisions of this section [18 Pa.C.S. § 7508] shall not be an element of the crime [35 P.S. § 780-113(a)(30) (possession with intent to deliver a controlled substance) in the instant case]. Notice of the applicability of this section to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing [the Commonwealth provided reasonable notice to appellee in the instant case]. The applicability of this section shall be determined at sentencing. The court shall consider evidence presented at trial, shall afford the Commonwealth and the defendant an opportunity to present necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable. [Emphasis added.]

Id. If our Court finds that § 7508 was applicable and the trial court refused to apply the section, then we must vacate the sentence and remand the case to the trial court for the imposition of a sentence in accordance with § 7508. 18 Pa. C.S. § 7508(d).

Our Court, in Commonwealth v. Jones, 413 Pa.Super. 482, 605 A.2d 825 (1992), held that if a defendant is convicted of possession with intent to deliver cocaine, when that defendant is subsequently sentenced the trial court need only determine, pursuant to its application of 18 Pa.C.S. § 7508 [ (a)(3)(i) ], “whether the Commonwealth established by a preponderance of the evidence that cocaine which [the defendant] possessed weighed at least [2.0] grams and less than [ten grams].” Id. at 486-87, 605 A.2d at 827. In the instant case the uncontroverted evidence introduced at trial and at sentencing revealed that appellee possessed 2.34 grams of crack cocaine (the evidence adduced at trial showed that appellee attempted to sell a portion of the crack cocaine, and, appellee introduced evidence that indicated that three years prior to trial he was a user of crack cocaine). The trial court convicted appellee of possession of crack cocaine, and, possession with intent to deliver crack cocaine. “Once a party is found guilty, the adjudicated elements of the offense must be fully considered and cannot be disregarded when fashioning a sentence. The sentencing court is not allowed to rewrite the script.” Id. at 487, 605 A.2d at 828. At sentencing, the trial court cannot reassess facts determined prior to a finding of guilt of possession with intent to deliver a controlled substance. Commonwealth v. Jones, supra. At the sentencing phase of appellee’s trial his previous conviction of possession with intent to deliver crack cocaine [35 P.S. § 780-113(a)(30) ] was a fait accompli. At trial the Commonwealth established, and the trial court found, that the amount of crack cocaine possessed by appellee was 2.34 grams. When the trial court (at the conclusion of the trial) convicted appellee of possession, and, possession with intent to deliver crack cocaine, and determined that the amount possessed was 2.34 grams, the trial court did not state that a portion of those grams were possessed by appellee for personal consumption and a portion for delivery to another (the finding of 2.34 grams was applied equally to both convictions). At that point appellee’s counsel asked if he could present evidence to show what portion of crack cocaine was possessed by appellee for his personal use. The trial court planned a hearing for February 11, 1993 but due to defense counsel’s unavailability no hearing was ever held. The issue was not raised on post-trial motions and the sentencing hearing began. As mentioned, supra, defense counsel then stated that he would not present any evidence regarding the alleged amount of crack cocaine that appellee purportedly intended for his personal use. Defense counsel simply referred to defense witness Lisa Buchanan’s trial testimony, wherein she testified that she had observed appellee smoke crack cocaine three years prior to trial, and, that she had purchased up to one-hundred vials of crack cocaine, in one transaction, for her own personal use. The amount of crack cocaine seized from appellee (established at 2.34 grams at trial) was not in dispute at the sentencing hearing. However, at the sentencing hearing the trial court then decided that appellee was a user as well as a seller of crack cocaine, and, arbitrarily and improperly determined that appellee did not possess with intent to deliver at least 2.0 grams of crack cocaine.

In the instant case, since it was determined at trial that appellee was guilty of possession with intent to deliver (as well as possession), there was no finding at trial that a specific portion of the crack cocaine was intended for appellee’s personal use, and, the amount clearly determined (at trial and at sentencing) to be possessed was 2.34 grams of crack cocaine, the trial court erred in refusing to apply 18 Pa.C.S. § 7508(a)(3)(i). Commonwealth v. Jones, supra; 18 Pa.C.S. §§ 7508(b), 7508(d). Once appellee was convicted of possession with intent to deliver, and the trial court had not previously found that not all of the crack cocaine was possessed with intent to deliver, the trial court at the sentencing hearing was only permitted to determine whether the Commonwealth had established (either at trial and/or at the sentencing hearing) by a preponderance of the evidence that the crack cocaine possessed weighed at least 2.0 grams and less than 10 grams for the mandatory sentence to be imposed. Commonwealth v. Jones, supra; 18 Pa.C.S. § 7508(b). The Commonwealth clearly met that burden since the weight of 2.34 grams was established at trial and not challenged at sentencing. In such a situation the trial court has no choice but to apply § 7508; it cannot proceed to reevaluate the facts (i.e., that appellee possessed sixty-eight vials of crack cocaine with a combined weight of 2.34 grams of crack cocaine) it determined at trial when it found appellee guilty of possession with intent to deliver. Since the trial court failed to apply § 7508 we must vacate appellee’s sentence and remand this case for resentencing in accordance with that mandated by 18 Pa.C.S. § 7508(a)(3)®.

Judgment of sentence vacated and case remanded for resentencing in accordance with this Opinion. Jurisdiction relinquished.

      . 35 P.S. § 780-113(a)(16).

      . 35 P.S. § 780-113(a)(30).

      . It is unclear why the complaint stated 3.4 grams instead of 2.34 grams.

      . 18 Pa.C.S. § 7508(a)(3)(i) states, in pertinent part, that if a defendant is convicted of possession with intent to deliver at least 2.0 grams and less than ten grams of cocaine, then that defendant shall be sentenced to a mandatory minimum term of imprisonment of at least one year and a fine of at least $5,000.

      . The issues raised on post-trial motions were that the evidence was insufficient to find appellee guilty of possession with intent to deliver, and, physical evidence should have been suppressed.

      . At trial, defense witness Lisa Buchanan, a user of cocaine, was qualified as an expert witness “in the field of narcotics packaging, use and purchasing.” N.T., 1/7/93, at 75. She testified that possession of sixty-eight vials of crack cocaine (as appellee possessed when arrested) would not necessarily indicate that the possessor intended to sell or deliver the cocaine. Id. at 80. She stated that at times she had purchased one-hundred vials for her own use; the purchase of such a large amount was intended to reduce the frequency of excursions to purchase vials from different dealers. Id. at 82. She also testified that appellee was a user of crack-cocaine, but that the last time that she had seen him smoke crack-cocaine was three years prior to his trial. Id. at 87.
      Appellee did not testify, and the only evidence introduced regarding his usage of crack cocaine came from defense witness Lisa Buchanan, who, as mentioned, supra, testified that she had seen him smoke the substance three years prior to trial. Appellee introduced no evidence regarding the amount of crack cocaine that he allegedly normally used.
      In contrast, Philadelphia Police Officer Kevin Beckett, who was qualified as the Commonwealth’s expert on narcotics investigation, packaging, sales and distribution, testified at trial that the sixty-eight vials of crack cocaine seized from appellee were possessed with the intent to deliver; Officer Beckett stated that if appellee had intended to use the cocaine for personal use he could have obtained it for less money by purchasing it in bulk form rather than in individual vials. Officer Beckett further testified that the total weight of crack cocaine found in all of the vials amounted to 2.34 grams. Id. at 40. Beckett testified that even the heaviest of crack cocaine users could only consume fifteen to twenty vials of the substance in one twenty-four hour period.
      We note that Officer Beckett’s testimony, regarding whether appellee’s possession of sixty-eight vials of crack cocaine was dispositive of whether appellee possessed the cocaine with intent to deliver, was unnecessary to a finding of guilt of that charge. Appellee was caught attempting to sell a vial to another man: That fact alone was sufficient to convict appellee of possession with intent to deliver.

      . The trial court did not impose a sentence for the possession of cocaine conviction.

      . While the quantity of drugs possessed is not irrelevant in determining whether a defendant possessed with intent to deliver a controlled substance (the quantity, if large enough, could help convict a defendant of that crime), quantity is not an element of the crime of possession with intent to deliver a controlled substance.

      . Although appellee was obviously attempting to establish that he was still a user of crack cocaine at the time of his arrest, no evidence was presented to demonstrate that fact; appellee’s trial counsel simply argued to the trial court that appellee was a crack cocaine user at the time of his arrest.

      . At this point, pursuant to Commonwealth v. Jones, supra, it was too late for the trial court to reassess facts it determined prior to its finding that appellee was guilty of possession with intent to deliver (the relevant facts were that appellee possessed sixty-eight vials of crack cocaine with a combined weight, exclusive of the vials themselves, of 2.34 grams).

      . The trial court's finding was arbitrary and without foundation since there was no evidence introduced showing that appellee was a crack cocaine user at the time of his arrest, and, there was no evidence introduced showing appellee’s average usage during a given time peri- ' od: The trial court simply had no basis for concluding that appellee did not possess with intent to deliver 2.34 grams since the uncontroverted evidence adduced at the trial and at the sentencing hearing showed that amount to have been possessed by appellee when he was arrested, appellee was convicted of that crime, and,, appellee did not demonstrate, at any phase of his trial (during the trial itself or at his sentencing hearing), that any portion of the 2.34 grams was for his personal use. As mentioned, supra, appellee would have had to demonstrate at trial, and the trial court would have had to have determined prior to a finding of guilt of possession with intent to deliver, that a specific portion of the crack cocaine was intended for appellee’s personal use. The trial court could have determined, after hearing evidence presented by appellee, that a certain number of the vials (or in another case, for example, one of three packets of cocaine) were intended for his personal use. If the weight of specific portions of the drugs was not determined at trial, then the Commonwealth could prove that weight by a preponderance of the evidence at sentencing (in order for 18 Pa.C.S. § 7508 to apply).

      . Since appellee possessed with intent to deliver at least 2.0 grams and less than 10 grams of crack cocaine the trial court was mandated to sentence appellee to a mandatory minimum term of imprisonment of at least one year and a fine of at least $5,000. 18 Pa.C.S. § 7508(a)(3)(i).

      . After reaching our decision in this case, we note that we concur with our Court’s comment in Commonwealth v. Jones, supra, wherein that panel stated, "In rendering our decision today, we recognize that sentencing judges are sometimes faced with the task of imposing a mandatory sentence which seems unduly harsh under the circumstances. However, we remind them that the Legislature has seen fit to mandate certain minimum sentences, and they have no discretion to impose a lesser penalty, despite apparent inequity in the sentence.’’ Id. 413 Pa.Super. at 487-88, n. 7, 605 A.2d at 828, n. 7. While the evidence presented in the instant case does not suggest that it might be unfair to impose the sentence mandated by § 7508, other cases may arise wherein the sentencing court recognizes mitigating circumstances but may not be permitted to let them impact the mandatory minimum sentence.


author: WIEAND, Judge:

text:
    647 A.2d 217
    In re Jeffry L. BOWMAN, III and Joshua Bowman, Minors. Appeal of Jeffry L. BOWMAN, II.
    Superior Court of Pennsylvania.
    Submitted Feb. 10, 1994.
    Filed July 18, 1994.
    Reargument Denied Sept. 16, 1994.

      Craig P. Miller, Lock Haven, for appellant.
    Paul J. Ryan, Lock Haven, for Minor Children, participating party.
    Donna L. Rae, Lock Haven, for Shuey, participating party.
    Before WIEAND, McEWEN and BROSKY, JJ.
   WIEAND, Judge:

This is an appeal by a biological father from an order which, upon petition by a divorced mother, terminated the father’s parental rights to his two children.

Jeffry L. Bowman, II, and Cynthia E. Shuey were married on August 20, 1983, and divorced in September, 1988. Two children were born of the marriage: Jeffry L. Bowman, III, born on August 12, 1985; and Joshua Bowman, born on October 10, 1986. Cynthia has had custody of the children since she and Bowman separated in October, 1987. In April, 1989, Cynthia married Craig P. Shuey, with whom she also has had two children. On April 2, 1992, Cynthia filed a petition in the Court of Common Pleas of Clinton County to terminate the parental rights of Bowman so that his children could be adopted by Shuey. On March 24, 1993, a hearing was held. Bowman did not attend the hearing, but he was represented by counsel. The trial court found that Bowman had failed to perform his parental duties and had evidenced a settled intent to relinquish his parental rights. On May 25, 1993, the court entered an order terminating Bowman’s parental rights. A motion for post-trial relief was denied, and a final order was filed on September 7, 1993. Bowman appealed.

Parental rights may be terminated if a “parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition [for termination] either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.” 23 Pa.C.S. § 2511(a)(1). A party seeking to terminate parental rights bears the burden of proving by clear and convincing evidence the statutory grounds for doing so. In re E.M., 533 Pa. 115, 121, 620 A.2d 481, 484 (1993); In re Baby Boy S., 420 Pa.Super. 37, 44, 615 A.2d 1355, 1358 (1992). “The standard of clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” Matter of Sylvester, 521 Pa. 300, 304, 555 A.2d 1202, 1203-1204 (1989). See also: In re Shives, 363 Pa.Super. 225, 228, 525 A.2d 801, 802 (1987); Lookabill v. Moreland, 336 Pa.Super. 520, 523, 485 A.2d 1204, 1205 (1984).

With regard to the fulfillment of parental duties, the Superi- or Court has observed that

[w]hen a parent is separated from his children, he not only has a duty to love, protect and support them; he also has a duty to maintain communication and association with them. Adoption of McCray, 460 Pa. 210, 216, 331 A.2d 652, 654 (1975); In re Adoption of M.J.H., 348 Pa.Super. 65, 72, 501 A.2d 648, 651 (1985). Our courts have repeatedly stated that being a parent is more than a passive state of mind; it requires constant affirmative demonstration of parental devotion. M.J.H., 348 Pa.Super. at 73, 501 A.2d at 652.

In re V.E., 417 Pa.Super. 68, 76, 611 A.2d 1267, 1271 (1992). See also: In re Burns, 474 Pa. 615, 624-625, 379 A.2d 535, 540 (1977); In re Stickler, 356 Pa.Super. 56, 59, 514 A.2d 140, 142 (1986), allocatur granted, 515 Pa. 584, 527 A.2d 544 (1987); In re Adoption of Baby Boy J., 354 Pa.Super. 575, 579, 512 A.2d 689, 691-692 (1986). “A parent is required to exert a sincere and genuine effort to maintain a parent-child relationship; the parent must use all available resources to preserve the parental relationship and must exercise ‘reasonable firmness’ in resisting obstacles placed in the path of maintaining the parent-child relationship.” In re Shives, supra 363 Pa.Super. at 229, 525 A.2d at 803, citing In re J.L.Z., 492 Pa. 7, 10, 421 A.2d 1064, 1065 (1980). See also: In re Adoption of J.F., 392 Pa.Super. 39, 572 A.2d 223 (1990); In re Adoption of T.M., 389 Pa.Super. 303, 566 A.2d 1256 (1989).

A trial court’s inquiry, however, may not cease even when it determines that the statutory requirements of 23 Pa.C.S. § 2511(a)(1) have been met. A trial court must then inquire whether termination will clearly serve the “needs and welfare” of the children. 23 Pa.C.S. § 2511(b). See: Baby Boy A. v. Catholic Social Serv., 512 Pa. 517, 523-524, 517 A.2d 1244, 1247 (1986); In re Adoption of J.J., 511 Pa. 590, 607, 515 A.2d 883, 892 (1986); In re E.S.M., 424 Pa.Super. 296, 304, 622 A.2d 388, 395 (1993). “Courts are required not only to focus on the behavior of the parent but more importantly, are required to consider the effects of termination on the welfare of the ehild[ren].” In re Adoption of Hamilton, 379 Pa.Super. 274, 280, 549 A.2d 1291, 1294 (1988). “The court must determine by a clear and convincing showing that termination of the parent-child relationship is in the best interests of the child[ren].” Id. at 283, 549 A.2d at 1296.

“[T]he complete and irrevocable termination of parental rights is one of the most serious and severe steps a court can take, carrying with it great emotional impact for the parent and the child[ren].” In re Adoption of Michael J.C., 326 Pa.Super. 143, 152, 473 A.2d 1021, 1026 (1984), reversed on other grounds, 506 Pa. 517, 486 A.2d 371 (1984). “Before granting a petition to terminate parental rights, it is imperative that a trial court carefully consider the intangible dimension of the needs and welfare of a child — the love, comfort, security, and closeness — entailed in a parent-child relationship, as well as the tangible dimension.” In re Matsock, 416 Pa.Super. 520, 540, 611 A.2d 737, 747 (1992). “Continuity of relationships is also important to a child, for whom severance of close parental ties is usually extremely painful.” In re William L., 477 Pa. 322, 348, 383 A.2d 1228, 1241 (1978). The trial court, “in considering what situation would best serve the child[ren]’s needs and welfare, must examine the status of the natural parental bond to consider whether terminating the natural parents’ rights would destroy something in existence that is necessary and beneficial.” In re P.A.B., 391 Pa.Super. 79, 86, 570 A.2d 522, 525-26 (1990), appeal dismissed, 530 Pa. 201, 607 A.2d 1074 (1992). “Where there has not been adequate consideration of the emotional needs of the children, a termination of parental rights cannot be sustained.” In re E.M., supra 533 Pa. at 121, 620 A.2d at 484.

On appeal from an order terminating parental rights, this Court’s scope of review is limited to determining whether the decree of termination is supported by competent evidence. Matter of Adoption of C.A.E., 516 Pa. 419, 421, 532 A.2d 802, 803 (1987); Matter of Adoption of G.T.M., 506 Pa. 44, 46, 483 A.2d 1355, 1356 (1984); In re V.E., 417 Pa.Super. 68, 75, 611 A.2d 1267, 1271 (1992). Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the findings of the trial court, the decree must stand. In re C.E.H., 429 Pa.Super. 304, 307, 632 A.2d 577, 579 (1993); In re E.S.M., 424 Pa.Super. 296, 302, 622 A.2d 388, 391 (1993); In re G.D.G., 392 Pa.Super. 575, 577, 573 A.2d 612, 613 (1990). Nevertheless, this Court will examine the record closely in termination cases to determine whether the evidence supports a termination and will reverse where the evidence fails to support a trial court’s decree and/or where the trial court has failed to give adequate consideration to the effect of such a decree upon the welfare of the child or children. After careful review in the instant case, we are constrained to reverse.

This is not a custody action. The issue is not whether the children should be removed from their mother’s custody. She has been the children’s primary caretaker, and no one has questioned her ability and willingness to provide loving care for her sons. The children’s biological father, on the other hand, has not provided the same quality of care for his children. Whether because of the demands made upon him by his country and/or his employment, it is clear that he has not provided the “hands on” care which has come from the children’s mother. Father, indeed, has shown signs of irresponsibility. He is late for appointments; sometimes he fails to appear at all; and on occasion he has brought the children home late after a visit. Sometimes he also forgets to send gifts or cards on important occasions in the lives of his children. Still, he has supported his children regularly, albeit pursuant to a wage agreement, and he clearly has not abandoned his children or evidenced a settled purpose to relinquish parental rights by failing to perform parental duties.

At the time of separation, father was in the military service and was stationed in Okinawa. In June, 1988, he reported to Camp Pendleton, California. During the time when father was in the service, of necessity, he had little or no contact with his sons. In 1988, however, he did remember his children with Christmas gifts. While on leave during the summer of 1989, father saw his children frequently but experienced difficulty in keeping the schedule which he and mother had arranged and to which mother expected him to adhere. In August, 1989, it appears that father, still in the service, returned to California; and later that year he failed to acknowledge his sons’ birthdays or Christmas with gifts, cards or telephone calls.

In the spring of 1990, mother petitioned the court for an order awarding custody of the children to her, and on May 14, 1990, a custody conference was held. Father, although still in the armed forces, appeared at the conference and agreed to an order awarding custody to mother and establishing a schedule for visitation by father. Apparently, father was thereafter discharged from the armed forces but, nevertheless, continued to have difficulty adhering to the agreed schedule. It is clear, however, that he did see his children during the summer of 1990, but on a more irregular basis than mother, and perhaps the children, would have liked.

In the fall of 1990, the order for visitation was changed, at mother’s request, to require that visits take place under supervision of the Clinton County Children and Youth Social Services Agency. Father’s visits under this arrangement were made in November but not in December. In January, 1991, father was ordered to return to active duty in the armed forces and, continuing until January, 1992, participated in Operation Desert Storm. Again, he was separated from his children.

In January, 1992, father took employment with PandralJackson, a railroad-related company. This job, which he continues to hold, requires that he be away from home for extended periods of time. In April, 1992, mother filed a petition to terminate father’s parental rights.

When mother, in 1992, experienced behavioral difficulties with the boys, a psychologist met with the interested parties and discovered that a strong bond existed between the boys and their natural father. The boys, it appears, were greatly concerned about their father’s safety and wished to see him more frequently. The psychologist recommended that if father could not see his children regularly because of his job related absences, he maintain regular contact by mail. This was in December, 1992. Father failed to follow this recommendation. By a wage agreement, however, he has continued to support his children.

The record in this case paints an unequivocal picture of a father who has demonstrated love and concern for his children only sporadically as and when it has been convenient for him to do so. He has not been a good father and, on frequent occasions has demonstrated a lack of maturity, perhaps even irresponsibility. The record is also clear, however, that he has responded promptly on those occasions when the needs of his sons have demonstrably required a response. Thus, it is difficult to find from the record in this case a father who has “evidenced a settled purpose of relinquishing parental claim to [his children] or [who] has refused or failed to perform parental duties.” Although not a “good” father, it is clear that appellant has been the children’s “father,” and that he has not demonstrated a settled purpose of relinquishing his parental rights.

More importantly, it appears from this record that the breaking of the strong bond which exists between father and sons may well be prejudicial to the best interests of these boys. This was a factor which the trial court failed to consider. The court did not make a finding and, indeed, did not consider whether termination would serve the “needs and welfare” of the children, as required by 23 Pa.C.S. § 2511(b). This, as we have observed, is an important consideration, for the irrevocable termination of parental rights can have a severe and lasting emotional impact on the children as well as on the terminated parent. Our own review of the record in this case fails to disclose evidence that the childrens’ “needs and welfare” will be enhanced by a termination of their father’s parental rights. The bonds between father and children, on the contrary, are, such that a termination of the father’s parental rights will be severely painful and may well inflict emotional injury of substantial, if not permanent, duration.

After careful review, therefore, we conclude that the evidence fails to support the trial court’s order terminating the parental rights of the appellant father. Not only has he not evidenced a settled purpose of relinquishing his parental rights, but the record fails to demonstrate that a termination of his parental rights will be in the best interests of the children.

Order reversed.

      . An amended petition was filed on September 21, 1992.

      . Father failed to appear at the conference which produced this order.