text:
    584 A.2d 1008
    Janice HEIMBACH, Appellee, v. Laverne HEIMBACH and J P Mascaro & Sons, Inc. v. MICRO COAX COMPONENTS, INC., A DIVISION OF UTI COMPANY Appeal of J P MASCARO & SONS, INC.
    Superior Court of Pennsylvania.
    Argued Nov. 27, 1990.
    Filed Jan. 7, 1991.

      William F. Thomson, Jr., Morrisville, for appellant.
    Maria S. Rosmini, Philadelphia, for Micro Coax Components, appellee.
    Before OLSZEWSKI, TAMILIA and HESTER, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order granting the motion of Micro Coax Components, Inc. (MCC), third-party defendant below, for summary judgment against J.P. Mascaro & Sons, Inc. (Mascaro), defendant/third-party plaintiff below. As our review of the trial court’s actions reveals no error, we affirm.

The undisputed facts of this case are as follows. On January 18, 1985, Janice Heimbach, the plaintiff below, was being driven to work by her husband, Laverne Heimbach, also a defendant below. The Heimbach vehicle was involved in a collision with a trash truck owned by Mascaro. The collision occurred in the parking lot of MCC, Mrs. Heimbach’s employer. Although Mrs. Heimbach was on her way to work, she had not yet begun to perform any task in furtherance of her employment.

Mrs. Heimbach commenced a civil action against Mascaro and Mr. Heimbach. Mascaro filed a third-party complaint against MCC, alleging that Mrs. Heimbach’s injuries were the result of MCC’s failure to properly maintain the parking lot. The third-party complaint requested indemnification and/or contribution by MCC.

MCC’s amended answer raised as new matter the defense of immunity from suit under the provisions of the Pennsylvania Workmen’s Compensation Act (Act), 77 P.S. § 481(b). Mascaro argued below that the “dual capacity” doctrine allowed a claim against MCC for indemnification and/or contribution because the duty owed to Mrs. Heimbach in this factual situation did not arise from the employment relationship. The trial court refused to accept this argument, neither do we.

An examination of the Act reveals two factual scenarios where an injured employee will recover compensation from his employer. An employee is entitled to compensation if injured while actually engaged in the furtherance of the employer’s business or affairs, regardless or whether the injury occurs on the employer’s premises. WCAB (Slaugenhaupt) v. United States Steel Corp., 31 Pa.Cmwlth. 329, 331-33, 376 A.2d 271, 273 (1977) [citing 77 P.S. § 411(1) ]. An employee injured while not actually engaged in the furtherance of the employer’s business or affairs is entitled to compensation if (1) the injury occurs on the premises occupied or under the control of the employer, (2) the employee is required by the nature of his employment to be on the employer’s premises, and (3) the injury was caused by the condition of the premises or by operation of the employer’s business and affairs thereon. Id.

The Act provides immunity to an employer to any action by a third-party tortfeasor for indemnity or contribution if the employee is entitled to compensation from the employer for the injury. 77 P.S. § 481(b). The undisputed facts of this case clearly show that Mrs. Heimbach was entitled to compensation from MCC for the injuries suffered on January 18, 1985. Mrs. Heimbach was required by the nature of her employment to be on MCC’s premises; the accident occurred on those premises; Mascaro alleged a right to indemnification or contribution because of the failure of MCC to properly maintain those premises, clearly attributing the accident to a condition of the employer’s premises.

Mascaro claims that the “dual capacity” doctrine takes the instant case outside the immunity provided by the statute. We disagree. The “dual capacity” (sometimes called the “dual persona”) doctrine provides that where an employer “possesses a second persona so completely independent from and unrelated to his status as employer,” the employer may be vulnerable to suit by an employee. Larson, Workmen’s Compensation Law, § 72.80, p. 14-229 (1976). The focus is on identity, not activity or relationship. Id., 72.81(a) p. 14-231.

The history of the doctrine in Pennsylvania was recently analyzed by this Court in Callender v. Goodyear Tire & Rubber Co., 387 Pa.Super. 283, 564 A.2d 180 (1989) alloc. denied, 525 Pa. 593, 575 A.2d 560 (1990). The Callender Court noted that the initial decisions dealing with “dual capacity” examined whether there was a separate duty owed the public by the employer and whether the injured employee was distinguishable from members of the general public. Id. 387 Pa.Super. at 293-95, 564 A.2d at 186 [discussing Tatrai v. Presbyterian University Hospital, 497 Pa. 247, 439 A.2d 1162 (1982), and Budzichowski v. Bell Telephone Co. of PA, 503 Pa. 160, 469 A.2d 111 (1984)]. The emphasis has shifted; the inquiry now focuses “exclusively on whether the employee was acting in the course of his employment.” Id. (emphasis in original) [discussing Lewis v. School District of Philadelphia, 517 Pa. 461, 538 A.2d 862 (1988), and Heath v. Church’s Fried Chicken, Inc., 519 Pa. 274, 546 A.2d 1120 (1988) ]. It is now established that the “dual capacity” doctrine is inapplicable where an employee’s compensable injury occurs while the employee is performing his or her job. Lewis, supra 517 Pa. at 475-77, 538 A.2d at 869.

The current state of the law can be summarized thus: If (1) an employee suffers an injury while performing his or her job duties, or (2) an employee, required by his or her job to be on the employer’s premises, suffers an injury on those premises due to a condition of the premises or the operation of the employer’s business, the injury is compensable under 77 P.S. § 411(1). If an injury is compensable, such compensation is the exclusive liability of the employer due to the immunity provided by 77 P.S. § 481. The “dual capacity” doctrine is an exception to the employer immunity provided by § 481; however, the doctrine is inapplicable when the compensable injury is suffered while the employee is performing job duties. Logically, if the doctrine has any continued vitality, it can only apply to category (2) situations, as these are the only remaining type of compensable injuries which gives rise to immunity. We hold that it does not.

Both Heath and Lewis presented situations where it was clear that the injured employee was acting in the course of his employment. Heath, supra 519 Pa. at 275, 546 A.2d at 1120; Lewis, supra 517 Pa. at 463-67, 538 A.2d at 863-64. Our Supreme Court has not yet addressed the factual scenario present here, where the injury is compensable because it occurred on the employer’s premises due to the condition of those premises rather than while the employee is performing job duties. Nonetheless, the Lewis case does provide guidance. There our Supreme Court held that the clear mandate of § 481(a) left no room for any liability beyond that prescribed by the Act. Lewis, at 471-73, 538 A.2d at 867. Compensation under the Act is the employer’s exclusive liability in place of any and all other liability on the employer’s part. Id. This immunity is the “quid pro quo employers received for being subjected to a no-fault system of compensation for worker injuries.” Id. (citation omitted). The bar to any other action arises automatically if the injury is compensable under the Act. Id.

This construction of § 481(a) leaves no room for the “dual capacity” doctrine. Section 481(b) mandates that, absent a written contract to the contrary, the employer is immune from joinder for indemnification or contribution to a suit against a third-party tortfeasor if the underlying claim by the employee is a compensable injury. Just as § 481(a) prevents an employee from pursuing a claim against the employer for a compensable injury, so too does § 481(b) prevent a third-party tortfeasor from asserting a claim against the employer on the facts here presented.

We are aware that our holding today totally abrogates the doctrine of “dual capacity.” Nonetheless, our Supreme Court’s construction of 77 P.S. § 483 as requiring compensation to be the exclusive liability of the employer for a compensable injury can logically lead to no other conclusion.

Order granting MCC’s motion for summary judgment affirmed.

TAMILIA, J., concurs in the result.

      . The immunity section of the Act allows for a waiver of the defense by a prior written contract. 77 P.S. § 481(b). In the absence of a written contract, no employer may be joined as an additional defendant. Hefferin v. Stempkowski, 247 Pa.Super. 366, 367-70, 372 A.2d 869, 870-71 (1977). No such contract exists in the present case.

      . Each section of a statute must be construed in light of the meaning given other sections of the same statute. Turner v. May Corp., 285 Pa.Super. 241, 249-51, 427 A.2d 203, 207 (1981). Clearly, 77 P.S. § 481(b) must be construed consistently with 77 P.S. § 481(a).

      . We add our voice to those who have called for the Legislature to correct the apparent injustices wrought under the Act. Heath, supra 519 Pa. at 276-78, 546 A.2d at 1121, Papadakos, J., concurring; Callender, supra 387 Pa.Super. at 297-99, 564 A.2d at 188, Del Sole, J., concurring. Just as it is a concern that a manufacturer can place a defective product into the stream of commerce yet escape liability for injuries suffered by employees because of the employer/employee relationship, so too it is a concern that employers can evade their share of joint liability when their actions coincide with those of a third party to injure their employees. Admittedly, there is no consequence to the injured party as long as they can recover from the third-party tortfeasor. Still, it is unjust to impose the entire burden on the joint tortfeasor where the employer could potentially bear their share. Nonetheless, we agree that this is a matter more properly addressed by the legislative branch than by the judiciary.


source: Caselaw Access Project

author: HUDOCK, Judge:

license: Public Domain

text:
    584 A.2d 1011
    DRAVO CORPORATION, Appellee, v. Frank J. IOLI and Marcia Ioli, His Wife, Who do business as Partners Under the Name of Frank J. Ioli Construction Co., Appellants, and David G. Metinko, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 7, 1990.
    Filed Jan. 7, 1991.

      Edward A. Olds, Pittsburgh, for appellants.
    Lauren Fertelmes, Wexford, for Dravo, appellee.
    Before DEL SOLE, BECK and HUDOCK, JJ.
   HUDOCK, Judge:

This is an appeal from an order which entered summary judgment against Appellants, Frank J. and Marcia Ioli, who do business as partners under the name of Frank J. Ioli Construction Co., (Defendants below, hereinafter referred to as “Appellants”). Appellee Dravo Corporation (hereinafter “Appellee”) filed suit against Appellants over a dispute about payment for the sale of construction supplies. Appellants filed a counterclaim premised on 42 Pa.C.S.A. § 8351, wrongful use of civil process. Appellants’ bankruptcy lawyer, David G. Metinko, was joined as an additional defendant with respect to this counterclaim. The order on appeal followed. We remand.

Appellee drew the trial court’s attention to the fact that the involuntary bankruptcy proceedings had been voluntarily dismissed by joint motion, and then successfully argued that the bankruptcy proceeding, as such, did not terminate in favor of Appellants. The statute governing wrongful use of civil proceedings, 42 Pa.C.S.A. § 8351, provides:

(a) Elements of action—A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings:
(1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and
(2) The proceedings have terminated in favor of the person against whom they are brought.

Appellants request reversal of the order granting summary judgment on their counterclaim, and remand for trial. Their argument is summarized as follows:

The adequacy of the [counterclaim under the first element is not at issue here. The involuntary bankruptcy petition was dismissed; this is a termination in favor of the [Appellants]. The fact that the dismissal was a voluntary one, as opposed to a termination of the case on the merits is of no relevance. At best, a question of fact is presented as to whether the joint voluntary dismissal was a favorable termination of the proceeding for the [Appellants], permitting this wrongful use of civil process action. It was therefore improper for the lower court to resolve these facts in summary judgment proceedings. (Appellants’ Brief, at p. 11.)

Appellee, on the other hand, argues that “where the prior proceeding has been terminated by agreement, settlement or compromise of the parties, such termination, as a matter of law, is deemed to be not favorable for the purposes of an action for wrongful use of civil process.” (Appellee’s Brief, at p. 6.) “The Joint Motion [to discontinue] was the result of a compromise ...” Id. “There was neither a voluntary withdrawal nor abandonment of the Involuntary Petition by [Appellee] which would support the inference that the proceeding was instituted without probable cause.” Id., at p. 10.

As stated in Vargo v. Hunt, 398 Pa.Super. 600, 581 A.2d 625 (1990):

A determination of whether the grant or denial of a motion for summary judgment is to be upheld requires an appellate court to decide whether the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. In making such a finding, we must accept as true all properly pleaded facts, as well as all reasonable inferences which might be drawn therefrom. Furthermore, we shall not disturb the trial court’s ruling unless there has been an error of law or a manifest abuse of discretion. [Citations omitted].

Appellant strongly asserts the absence of a settlement (Appellant’s Brief, at p. 21), and, based on the following, claims issues of material fact:

[T] here was no settlement of a disputed claim. [Appellee] fails to identify what the compromise was. It did not do this when it filed its summary judgment motion. Thus, no affidavits were presented concerning the nature of an alleged compromise. In fact, the evidence shows that the [Appellants] did not give up anything and that there was no agreement. They did not acknowledge [Appellee’s] debt, they did not agree to not resist [Appellee’s] attempt to recover the improper portions of the debt. The only concession that the [Appellants] made in the bankruptcy was that they would have their lawyer accept service of an assumpsit complaint. This obviously has nothing to do with the bankruptcy. It cannot therefore be termed a compromise. In light of this, it can be concluded, in the current record that there was not a compromise of the prior action ... [T]here is a profound dispute of fact about whether consideration could be found in the instant case ... Based upon the present record, it cannot be said unequivocally that the facts support a conclusion that there would be valid consideration to support a promise in return for [Appellee’s] voluntarily dismissing the bankruptcy. (Appellants’ Brief, at pp. 21-24).
A summary judgment may be granted only in the clearest of cases where the right thereto is clear and free from doubt. (Appellant’s Brief, at p. 23; citation omitted).

We agree. As noted in Miller v. Pennsylvania R. Co., 371 Pa. 308, 316, 89 A.2d 809, 812 (1952), citing Restatement (Torts) § 673, (d):

[U] pon the issue[ ] of favorable termination ... the jury has only the function of finding the circumstances under which the defendant acted. The court determines whether, under those circumstances, the termination was sufficiently favorable to the accused ... Where there is no conflict in the testimony as to what the circumstances were, the court has no need for a finding of the jury. The jury is not called upon to act unless there is a conflict in the testimony which presents an issue for its determination.

While we acknowledge that, as a matter of law, a compromise does indeed fail to meet the requirements of favorable termination, thereby rendering summary judgment appropriate, we cannot conclude, on the present record, that there was a compromise of the action. As indicated above, the circumstances surrounding the joint motion are unclear. Once the fact-finder resolves them, however, deciding whether or not the Appellants truly compromised their claim, the court may then rely on relevant authority in determining either the presence, or absence, of favorable termination. Because a genuine issue of material fact does exist in the case at bar, it follows that summary judgment was erroneously granted, and we are therefore constrained to remand.

Order reversed and case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

      . The order reads:
      And now to wit this 19th day of December, 1989, after hearing on Plaintiffs Renewed Motion for Summary Judgment, it is hereby ORDERED, ADJUDGED and DECREED:
      1. Judgment is entered on Plaintiff’s Complaint in favor of Plaintiff and against Defendant in the sum of $21,256.75 including interest from March 1, 1985 through the date of this Order at the rate of 6% per annum, plus costs.
      2. Judgment is entered on Defendant Ioli’s Counterclaim in favor of Plaintiff and against Defendants as to both Count I and Count II of the Counterclaim.

        /s/Silvestri Silvestri J.

      . "[Appellants] alleged [inter alia ] that [Appellee Dravo] had been guilty of abuse of process and malicious prosecution by virtue of its having commenced and maintained an involuntary bankruptcy case in the United States Bankruptcy Court for the Western District of Pennsylvania against them, in an effort to collect the disputed claim.” (Appellants’ Brief, at pp. 4-5).
      ”[T]he courts have uniformly held that an involuntary bankruptcy ... proceeding, which is a special proceeding rather than a criminal prosecution or a civil action in the strict sense, may form the basis for a malicious prosecution action.” 40 ALR3d 296, Action for Malicious Prosecution based on Institution of Involuntary Bankruptcy, Insolvency, or Receivership Proceedings, § 3. This view is implicitly supported by Silver v. Mendel, 93 B.R. 346 (E.D.Pa.1988), rev’d on other grounds, 894 F.2d 598 (3d Cir.1990), cert. denied, — U.S.-, 110 S.Ct. 2620, 110 L.Ed.2d 641 (1990).

      . The order was entered by the trial judge in December, 1989. He retired before this appeal was taken. No trial court opinion was therefore filed.

      . In their Brief in Opposition to Appellee’s Motion for Summary Judgment, Appellants’ also argued coercion, and therefore, the absence of a compromise.

      . The same rule appears in Restatement 2d (Torts) § 673(d).


author: POPOVICH, Judge: JOHNSON, Judge,

text:
    584 A.2d 1014
    In re E.M., a/k/a E.W.C. and L.M., a/k/a L.C., Minors. Appeal of ELIZABETH M.
    Superior Court of Pennsylvania.
    Argued Aug. 21, 1990.
    Filed Jan. 10, 1991.

      Raymond N. Sanchas, Pittsburgh, for appellant.
    Carla S. Hobson, Pittsburgh, for Children and Youth Services, participating party.
    Before POPOVICH, JOHNSON and HESTER, JJ.
   POPOVICH, Judge:

This case requires us to review the propriety of a decree from the Orphans’ Court, Allegheny County, ordering the involuntary termination of parental rights under Pennsylvania’s Adoption Act, 23 Pa.C.S.A. § 2511, where a natural parent is found to lack the capacity to raise children. See, e.g., In re: Adoption of B.J.R., 397 Pa.Super. 11, 579 A.2d 906 (1990); In re G.D.G., 392 Pa.Super. 575, 573 A.2d 612 (1990); In re P.A.B., 391 Pa.Super. 79, 570 A.2d 522 (1990), petition for allowance of appeal filed, 81 M.Alloc.Dkt. 90 (April 7, 1990). We affirm.

Appellant, Elizabeth M., is the natural mother of Louis C. and Erick C., her eight and nine-year-old sons, respectively. The record discloses that Elizabeth suffers from mental retardation. Her son Erick suffers from both physical and mental retardation and is diagnosed “educable mentally retarded.” Her younger son Louis is learning disabled. The children were first referred to the Allegheny County Children and Youth Services (“C & YS”) in June, 1982. At this time it appeared that, apart from spousal violence, the family was experiencing difficulty paying rent and purchasing food due to the father’s expensive drinking habits. By March, 1983, the situation worsened to a degree where the family, evicted from their residence, was forced to seek temporary accommodations at the local Salvation Army. It is here where C & YS began to observe the mother’s parenting deficiencies. The Salvation Army staff reported the mother as feeding her child water-diluted formula and spoiled milk from dirty bottles. The staff also noted that often she left soiled diapers in her room for days at a time. On December 12, 1983, the children were adjudicated dependant and placed with a foster family where presently they remain and from whom C & YS has received indication as to their intentions for adoption pending these proceedings. H. T. August 29, 1989 at 14.

The scope of appellate review from a decree of the Orphans’ Court involuntarily terminating parental rights has been stated thusly:

If a decree is adequately supported by competent evidence, and the chancellor’s findings are not predicated upon capricious disbelief of competent and credible evidence, the adjudication of the Orphans’ Court terminating parental rights will not be disturbed on appeal. See In Re: Adoption of M.M., 492 Pa. 457, 460, 424 A.2d 1280, 1282 (1981). It is established that, in a proceeding to involuntarily terminate parental rights, the burden of proof is upon the party seeking termination to establish by ‘clear and convincing’ evidence that the existence of grounds for doing so. See Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In Re: T.R., 502 Pa. 165, 166, 465 A.2d 642, 642-43 (1983) [adopting the Santosky evidentiary standard in Pennsylvania].

In the Matter of the Adoption of G.T.M., 506 Pa. 44, 46, 483 A.2d 1355, 1356 (1984). Broad, comprehensive review of the record below is the earmark of our review construct, however, “an appellate court will not reverse an order for termination of parental rights unless it is apparent that the trial court abused its discretion, committed an error of law, or lacked evidentiary support for its findings.” In re Adoption of James J., 332 Pa.Super. 486, 481 A.2d 892, 896 (1984). We leave to the chancellor all assessments of credibility, see Adoption of S.H., 476 Pa. 608, 383 A.2d 529 (1978), yet subject to our independent assessment all inferences, deductions and conclusions derived from testimony credited by the judge below. See Rinker Appeal, 180 Pa.Super. 143, 150, 117 A.2d 780, 784 (1955) (determination before the court “depend[ed] upon inferences to be drawn from the evidence rather than the credibility of the witnesses”); Matter of M.L.W., 307 Pa.Super. 29, 452 A.2d 1021 (1982).

Judge Mazur heard testimony from Pat Supancic, a C & YS caseworker assigned to the case in 1986. Ms. Supancic continued in a supervisory capacity up to and during these proceedings. Her testimony confirmed that Elizabeth, following removal, Elizabeth remained steadfast in her plea not to have the children adopted and at all times worked for their return to her custody. To this end, Ms. Supancic testified that Elizabeth was repeatedly advised of the requirements necessary for the return of her children. Ms. Supancic recalled: “it was always explained to [Elizabeth] what situations were needed for the children to [return]____” “She knew she would have to have a stabilized home, that she would need to be able to show that she can handle both of the children independently____” H.T. August 29, 1989 at 10, 21. Notably, within a span of approximately six years Elizabeth enrolled and earnestly participated in a variety of programs including: Parents Anonymous, Begin Again, Esprit, Chartiers MH/MR Community Living Program, C & YS Homemaker and the Hill House Parent’s Skill Program. Elizabeth also had been receiving independent therapy up to the time of this disposition.

The record reveals a marked improvement in Elizabeth’s standard of living subsequent to the removal of her children, to-wit: she had, for the previous two years prior to commencement of the instant proceedings, been living with her paramour John Colvin and maintained a clean residence and stable living environment. Unfortunately, the record also suggests that the programs proved to be of limited utility for a mother in Elizabeth’s unique situation, i.e., for mothers of limited mental acuity with “special needs” children already placed in foster care. Apparently, it was the exhaustion of viable service programs which served as the catalyst for C & YS opting for a plan of adoption in 1985. H.T. August 29, 1989 at 26. Judge Mazur credited this observation below, accepting that C & YS exhausted all possible alternatives available to a mentally retarded parent with “special needs” children. At the same time, the judge found no significant or noticeable improvement in Elizabeth’s parenting skills. Opinion at 5.

The principal testimony offered to describe, firsthand, Elizabeth’s present incapacity to parent was that of Kerrie Allenby, a Family & Community Services (“F & CS”) caseworker assigned to the family from October, 1987, to May, 1989. Ms. Allenby’s responsibilities included the supervision of foster care placement for “special needs” children, and the coordination and supervision of bi-monthly visitations between dependent children and their natural parents. According to Ms. Allenby, despite the unwavering consistency of Elizabeth’s visits, and that the visitation sessions “[o]verall—they were interactive at times[,]” absent was the ability for Elizabeth independently to handle the children in a manner warranting unsupervised visitation. H.T. August 29, 1989 at 48-50. Ms. Allenby testified that visitation was supervised:

[b]ecause of the children’s behavior. They were very unruly and oppositional during the visits. It was not all the time, but at some time during the visits they were unruly and oppositional, and it was very difficult for Ms. M. to control them.
I didn’t supervise them completely. It was not total supervision. When they went out of the office, I did accompany them.
[Supervision was necessary] [b]ecause during the visits, the erratic behavior of the boys, you know—Louie would run, you know—he would just like leave the office or—
There wasn’t the authority to control him. He was a very active child. I just felt that it was safer overall to have supervision.”

H.T. August 29, 1989 at 49. Admittedly, Elizabeth attempted to control her childrens’ unruly behavior, as Ms. Allenby continued:

“If they were fighting over a toy, she would remove the toy. When it got to issues like they were leaving the visiting room, it was more difficult, because the options that she was aware of and the authority that she had over the children was minimal, so she was unable to control the children.”

H.T. August 29, 1989 at 49.

Overall, while Ms. Allenby was assigned to the case, she was unable to detect—despite her efforts in this regard— any improvement in the quality of control exhibited by Elizabeth over the children. H.T. August 29, 1989 at 55-56. At times attempts to incorporate her suggestions were made, but unfortunately the suggestions were not internalized by Elizabeth. Ms. Supancic, although without personal observation of the childrens’ behavior, offered corroborating testimony from C & YS business records indicating that several other F & CS caseworkers presented similar assessments. That the confluence of this testimony persuaded Judge Mazur to find against an increase in Elizabeth’s level of parental skill competency can be gleaned from his supportive citations to Ms. Allenby’s testimony and the accompanying hearing transcripts which offer little more in substance or corroboration. Opinion at 2, 5.

Although not mentioned below, and before proceeding to our legal analysis, we feel constrained to acknowledge testimony from the record of a more positive flavor with respect to the natural mother—child relationship involved. Firstly, we note the distinct effort by Elizabeth to interact with the children at visitation, and how it appeared well-received by them. Ms. Allenby testified that Elizabeth “tried to interact with the children, and she would play games with them.” “If they were doing an art project, she would always participate in that.” H.T. August 29, 1989 at 51. From the childrens’ perspective, Ms. Allenby noted their attitude toward visits:

I talked to them during the summer about the visits. Just in general I talked about how they were and everything, and at that time they said they were fine. They didn’t want to go to visits, and at times they did. I talked to them again in the winter knowing that the adoption process was taking place ... and they both said they did like to visit.

H.T. August 29, 1989 at 58. Judge Mazur also heard testimony from Patricia Piercy, Ph.D., pertaining to the results of an interactional evaluation conducted between the children and their foster mother. Dr. Piercy recalled the children commenting on their parents. She noted in her report Erick’s comment that he had “two mommies and daddies,” but that he wanted to live with the mommy who was at the session and the daddy who was at work—referring to his foster father. Louis also referred to his foster parents as “mommy and daddy,” and expressed that he had “another mommy and daddy” whom he referred to as Big Lou and Beth. At one point in the interview Louis indicated that he wanted to live with Beth and Big Lou, at another time he stated that he would like to live with Marilyn and Ernie—referring to his foster parents. Louis’s ambivalence surfaced once again when asked his three favorite wishes, noting that one was to live with Beth and Big Lou, another was to live with Marilyn and Ernie, and a third was to live with both of them. H.T. August 25,1989, and report of Dr. Piercy, exhibit “A” at 3.

I

It is against this factual background that Judge Mazur applied the Pennsylvania Adoption Act. In relevant part the Act provides:

§ 2511. Grounds for involuntary termination
(a) General rule.—The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
[or]
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.
[and]
(b) Other considerations.—The court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child. The right of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent.

23 Pa.C.S.A. § 2511 (Purdon Supp. 1990).

Our task, therefore, is to ascertain whether competent evidence supports Judge Mazur’s conclusion that Elizabeth M. clearly and convincingly fell within the strictures of section 2511. We note that section 2511 offers five independent, albeit not mutually exclusive, bases upon which the chancellor might rest a determination of involuntary termination. Judge Mazur considered the propriety of termination under section 2511(a)(2). We will review his conclusions accordingly.

The test of involuntary termination under section 2511(a)(2) has been reduced to a tri-partite test of: (1) repeated and continued incapacity, abuse, neglect or refusal; (2) that such incapacity, abuse, neglect or refusal caused the child to be without essential parental care, control or subsistence; and (3) that the causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied. See In re Geiger, 459 Pa. 636, 331 A.2d 172 (1975) (applying section 311(2) of the 1970 Adoption Act, re-enacted verbatim by section 2511(a)(2) of the 1980 Adoption Act). Significant is that the same legal standard, and the same burdens of proof, apply with equal force to proceedings involving termination of parental rights where a parent suffers from a mental and/or physical impairment. See In re Adoption of J.J., 511 Pa. 590, 608, 515 A.2d 883, 893 (1986).

Considering the first prong, the record amply supports a determination that, at the time the children were removed and placed in foster care, Elizabeth M. demonstrated a recurring incapacity to provide adequate food, housing and clean living conditions. As for the second prong, we agree further that this incapacity caused the children to be without essential parental care, control or subsistence while in Elizabeth’s custody. The substance, however, of appellant’s various allegations of error focuses on the third prong and whether such incapacity continues and cannot or will not be remedied within a reasonable amount of time.

Initially, we recognize that much of what was problematic at the time of the childrens’ removal has since then evanesced; we also are mindful that Elizabeth received advice as to what ultimately was expected of her for the return of Erick and Louis. However, contrary to appellant’s interpretation, it would be a myopic reading of the statute to believe that any progress or change in condition would mandate non-termination of parental rights. The statute is more practical in design and focuses more acutely on the present and future prospects for the parent to develop the capacity to parent. Competent testimony of Elizabeth’s lack of progress and inability to increase her parenting skills counsels against a finding in her favor, improvement in her living conditions notwithstanding.

Equally unavailing is appellant’s contention that Elizabeth never was afforded an opportunity to receive the full benefit of a plan designed for the return of her children. See In Interest of C.M.E., 301 Pa.Super. 579, 448 A.2d 59, 64 (1982) (“where efforts to secure support services may have been thwarted by the complexities of the jurisdiction of the state welfare agencies ... [and] [w]ithout an opportunity to receive the full benefit of the plan devised for the education and possible return of the child to Appellant, her parental rights must take precedence.”) (emphasis in original) (footnote omitted). Consistent with Judge Mazur’s conclusion, the record clearly suggests the contrary and supports a finding that C & YS changed its goal to adoption only after exhausting available services. Testimony from the C & YS and F & CS caseworkers indicates that each offered to Elizabeth what they felt appropriate for a mother in her situation with children placed in foster care. We decline to require more without a showing of bad faith on the part of C & YS and without further guidance from our legislature. In sum, while it is regrettable the lack of programs geared especially for parents laboring under conditions similar to Elizabeth’s, and that this might be reviewed by the appropriate agency is our desire, we find competent evidence to support the view below that Elizabeth was offered a plan for the return of her children before C & YS changed its goal to adoption. Cf. In the Interest of C.M.E., supra.

And finally, appellant contends that the testimony of her incapacity under section 2511(a)(2) was insufficient both in level of expertise and objectivity to constitute clear and convincing evidence. Appellant’s argument reduces to the simple allegation that “caseworkers” as a class are unqualified to offer competent evaluations of the capabilities of those parents to whom they are assigned. We perceive this as an issue of credibility and reject it summarily. See Adoption of S.H., supra. The degree of specificity, the extent of their observations and the inferences based thereon are, however, subject to review. See Rinker Appeal, supra.

As detailed previously, Ms. Allenby testified to Elizabeth’s inability to “handle” the children. Ms. Supancic offered corroborating testimony from C & YS business records which included like observations from Ms. Allenby’s predecessors and co-workers. Ms. Supancic offered, as well, her opinion that 24-hour assistance would be necessary for Elizabeth to care for the children. Specifically, Ms. Allenby detailed the lack of authority Elizabeth displayed when the environment changed from the narrow confines of the visiting room to the prodigious setting of the outdoors. To be sure, “cannot handle” is a treacherous phrase for it bespeaks a condition not easily put to words, much less defined with precision. And yet, it cannot be doubted that “control” and “authority” are two parental traits essential to the physical and mental well-being of a child.

Further defining the inquiry, we interpret section 2511(a)(2) as directing the Orphans’ Court to consider the special needs of these children relative to the minimum threshold level of parental competence necessary to safeguard their physical and mental well-being. See In re Adoption of J.J., 511 Pa. at 608, 515 A.2d at 893 (willingness and ability of parent to perform, at a minimal level, his or her parental duties is the test under the Adoption Act); In the Interest of Coast, 385 Pa.Super. 450, 468, 561 A.2d 762, 771 (1989) (en banc) (childrens’ retardation and emotional problems considered when ascertaining their minimal needs). The record is replete with references to Erick and Louis’s special needs as testified to by Dr. Piercy:

They need someone who is very much aware of their special needs, who is available to them, to go to school, to attend school conferences, to be able to manage the behavioral programs that the school devises, so that they carry that out in the home, for some continuity, especially for Louis, and to provide the kind of attention that their special needs require.

H.T. August 25, 1989 at 12. In particular, and referring to the type of parental attributes necessary to cope with their special needs, Dr. Piercy noted:

‘T think [they need large doses of attention], plus the ability to set limits and structure, on Louis in particular, and being able to carry out sometimes rather sophisticated behavioral modification programs.”

H.T. August 25, 1989 at 25.

We feel persuaded that competent evidence of the requisite specificity and breadth supports the finding that appellant clearly lacked the capacity to control her childrens’ behavior and to assure, at a minimal level of competence, for their mental and physical well-being beyond supervised visitation. At the same time, we feel that the childrens’ special physical and mental needs required particular competence in this area. That this situation had not improved within a span of approximately six years, and with the support of various programs, compels the conclusion that the causes of Elizabeth’s incapacity cannot or will not be remedied by her. See In re: Adoption of 397 Pa.Super. at 26, 579 A.2d at 914 (in affirming decree of termination, court relied heavily on fact that parent was unable to internalize the skills necessary to provide “consistent structured parenting”). We in no way attribute this to a lack of effort on Elizabeth’s part or a want in desire to be reunited with her children. We simply heed the statutory mandate as interpreted by our supreme court and note that “a parent who is incapable of performing parental duties is just as parentally unfit as one who refuses to perform the duties.” In re William L., All Pa. 322, 345, 383 A.2d 1228, 1239 (1978) cert. denied sub nom. Beatty v. Lycoming County Childrens’ Services, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978).

Thus having independently adjudged appellant’s incapacity, we move next to consider the separate question under section 2511(b) whether termination of appellant’s parental rights would be consistent with the needs and welfare of her children. See generally, Santosky v. Kramer, 455 U.S. 745, 760, 102 S.Ct. 1388, 1398, 71 L.Ed.2d 599, 611 (1982) (until State satisfies burden of parental unfitness, parent’s and child’s interests must be presumed to converge, i.e., the child’s best interests is not properly admissible at the “adjudicatory” stage); Adoption of R.I., 468 Pa. 287, 299 n. 12, 361 A.2d 294, 300 n. 12 (1976) (affirming long-standing principle that needs and welfare must be considered only after a finding that the statutory requirements for involuntary termination have been satisfied); In re Adoption of J.J., 511 Pa. at 607, 515 A.2d at 892 (same); cf. In the Interest of Coast, 385 Pa.Super. at 458, 561 A.2d at 766 (1989) (reviewing the necessity in a termination hearing of a separate and independent judicial inquiry into parental incompetence as proven only by clear and convincing evidence, and further cautioning that “[t]he term “child’s needs and welfare” denotes neither a discrete factor which a court must consider, nor a discrete step in a termination adjudication.”) (emphasis added).

II

To conclude that appellant is presently incapable and will remain incapable of parenting at the “adjudicatory” stage of a termination proceeding is not prima facie evidence for the termination of her parental rights at the “dispositional” stage. See In the Interest of Coast, 385 Pa.Super. at 481, 561 A.2d at 779 (Tamilia, J., concurring and dissenting). That is, despite the fact of appellant’s incompetence, termination should be denied if additional factors counsel that to do so would not serve the needs and welfare of the children. See In re P.A.B., supra, (decrying chancellor’s failure to consider needs and welfare as a separate and distinct element); cf. In the Interest of Coast, 385 Pa.Super. at 458, 561 A.2d at 766 (panel does not quarrel with view that the court still has the power not to terminate parental rights even after the statutory requirements under section 2511(a) are met). More poignantly, it is clear that a parent’s retardation alone—buttressed, of course, by the requisite factual inquiry into the parent’s specific incapacities—is insufficient a basis upon which to terminate parental rights.

Judge Mazur characterized the issue thusly: “[t]he appropriate test is not one of balancing the rights of the parent with the best interests of the child, but the issue to be determined is whether the parent can provide for the needs and welfare of the child." Opinion at 3 (emphasis added). Additionally, while the record reflects a desire by the foster parents to adopt Erick and Louis pending these proceedings, nowhere does Judge Mazur refer to this fact in his final disposition and decree. We feel this type of all or nothing approach ignores the independent value to be found in parental love and bonding that might still exist as between the children and the natural mother despite prolonged separation. To remove this without a thorough consideration of whether the childrens’ welfare is safeguarded elsewhere might be to substitute nothing in its place. Clearly this runs counter to the childrens’ needs and welfare irrespective of other established parental incapacities. And yet, for proof that such a disposition is plausible one need only consider that a petition for involuntary termination might be initiated without any indication that the childrens’ minimum needs and welfare are presently being met by pre-adoptive foster parents. See In re Burns, 474 Pa. 615, 627, 379 A.2d 535, 541 (1977) (imminency of adoption need not be proven before adoption agency petitions for involuntary termination of parental rights).

We have offered similar reasoning previously, see In re: P.A.B., supra, where, there, we considered beneficial the relationship and emotional bond as found between the children and their natural parents. This was so despite testimony describing the difficulty the parents experienced in such routine functions as shopping, dressing the children, administering medication and controlling the childrens’ behavior. Animating the court was a belief that removal from the home does not automatically foreclose the potential for the natural parents to maintain an emotional bonding with their children. Counselling against extinguishing this bond, the court saw nothing to take its place:

In this case, the record only suggests in one statement in testimony that there may be a possibility that [the child’s] foster parents will adopt her. No alternative permanent situations are on the horizon for [the children]. Thus termination would cut off a natural and beneficial parent-child bond and would not facilitate putting another in its place. Termination would stabilize nothing.

In re P.A.B., 391 Pa.Super. at 91, 570 A.2d at 528 (emphasis in original). On these facts, therefore, we found the childrens’ needs and welfare provided for, at least in part, by the natural parents and the bonding existing between them and their children.

Accordingly, we now follow the logic of In re P.A.B., supra, and similarly hold that the Orphans’ Court failed to consider properly the needs and welfare of the child as a discrete element under the statute and, thereby, committed an error of law. See In re Adoption of James J., supra. However, despite appellant’s plea that we remand to consider the extent of the natural parent—child bond, we believe such a course is unnecessary as we hold the record clearly and convincingly supports a view that, when considered under the appropriate test, Erick’s and Louis’s needs and welfare are adequately safeguarded through termination of their natural mother’s parental rights.

An examination of section 2511(b), see supra Part I for full text, leads us to believe that our attention should be directed toward the following additional factors: (1) whether a necessary and beneficial bond exists between the children and the natural parent, and the related notion, whether the natural parent has evidenced a willingness and desire to maintain the relationship; and (2) whether there are foster parents who have demonstrated a genuine desire and reasonable assurance of their plans to adopt the children. Significantly, if no bonding or otherwise beneficial relationship exists as between the natural parent and the children, and no other reason implicating the childrens’ needs and welfare counsels against termination, then termination might be an appropriate course of action irrespective of the imminency of adoption. This would be to enable the children to develop a new and meaningful relationship through adoption. See In re: Adoption of B.J.R., 397 Pa.Super. at 27-28, 579 A.2d at 915 (where mother is incompetent and maintains only “tenuous” relationship with child, logic of William L., supra, suggests termination of parental rights even where nothing in the record indicates adoption is pending). Following like reasoning, we feel that once a parent is adjudged incompetent under section 2511(a) whereby family unity cannot be preserved, but where adoption is imminent, then there is no need to ascertain whether a beneficial bonding exists as between the natural parent and the children, nor whether additional factors counsel that continuing the relationship might otherwise serve the needs and welfare of the child.

We find the latter situation applicable to the instant case and are persuaded by the reasoning infra that this is the proper interpretation of section 2511(b). Initially, we find our statutory mandate abundantly clear: “the court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child.” 23 Pa.C.S.A. § 2511(b). No doubt the judicial inquiry is to be centered on the interests of the child, not the fault of the parent. See In re Adoption of J.J., 511 Pa. at 607, 515 A.2d at 892 (1986). Hence, with the child as the focal point it is our belief that “needs and welfare” under section 2511(b), including the intangible component of parental bonding or love, transcends the natural parent’s capacity to provide for their satisfaction. Specifically, where pre-adoptive foster parents stand ready to adopt pending termination proceedings this fact unquestionably impacts on the childrens’ “needs and welfare” and should factor into the analysis. Cf. In re P.A.B., 391 Pa.Super. at 91, 570 A.2d at 528 (reserving for another day question of whether termination is proper where adoption is assured); In re Adoption of T.M., 389 Pa.Super. 303, 309, 566 A.2d 1256, 1259 (1989) (noting that once statutory grounds for termination are satisfied, “pertinent [is] whether or not reasonable prospects for placement of the children in adoptive homes exist”).

Our task at this point, however, is a limited one, one that does not permit a balancing or weighing of the relative capabilities of the natural parents and the pre-adoptive parents to provide for the childrens’ needs and welfare. Nor do we perceive our statutory mandate as one of balancing the benefits and added stability of an adoptive home against the benefits of perpetual foster care. See post, diss. op. at 1027-1028. Judicial inquiry should not be confused as being interchangeable with a “best interests” type inquiry—a phrase typically associated with child custody proceedings:

“[needs and welfare] denotes certain minimum requirements that all children are entitled to—adequate housing, clothing, food and love—whereas [best interests] connotes a weighing of two adequate but unequal situations____”

In re Adoption of Michael J.C., 326 Pa.Super. 143, 158, 473 A.2d 1021, 1029 (1984), rev’d on other grounds, 506 Pa. 517, 486 A.2d 371 (1984) (emphasis added). See also, In the Interest of Coast, supra, (decrying “best interests” balancing under section 2511 of the Adoption Act).

We find clear indication from the record confirming an intention by the foster parents to adopt pending these proceedings. H.T. August 29, 1989 at 14, and Exhibit “A” at 1. Accordingly, we hold that where adoption is assured, and where the proper screening safeguards are in place to assure a child a stable environment with adoptive parents, then termination of an incompetent’s parental rights conforms with the child’s needs and welfare under the Adoption Act, Section 2511(b). In this manner, Erick and Louis’s physical and mental well-being is safeguarded, and a sense of stability is added to their lives whereby full legal responsibility for their care and upbringing will become vested in their adoptive parents. See In re William L., 477 Pa. at 348, 383 A.2d at 1241-42 (recognizing the injustice in consigning a child indefinitely to the “limbo” of foster care). We are mindful of the fact that in so holding we disregard what may be a present and continuing beneficial relationship with the natural mother now irretrievably lost; we leave it to our legislature to consider the propriety of this result.

Decree affirmed.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

In this case we are asked the difficult question of whether a retarded mother’s parental rights should be terminated, where the children had been removed from her home and placed in foster care, but where the evidence establishes that a strong parent/child bond has developed between the children and the natural mother (Mother) over the ensuing years and where the foster parents want to adopt the children. The majority affirms the decree to terminate. Based upon what I find to be the grossly insufficient record, I must dissent.

Mother is mildly retarded; she has a high school diploma from the Mon Valley School for Exceptional Children. Because she was unable to care for her sons, they were adjudicated dependent and were placed in a foster home. The majority is correct that the court must, following the finding of Mother’s permanent incapacity, enter into a separate determination of whether termination is in the children’s best interests. No party in this case advocates sending the children back into Mother’s primary care. The children are doing well in the present situation. The real issue is whether the benefits of change in legal status from foster care to adoption, weighed against the harm of taking Mother out of the children’s lives, will serve the best interests of the children. Although the record contains evidence to support a finding of the statutory requisite that Mother probably will never be able to provide for her children’s needs, the record is devoid of evidence addressing the effect upon the children of cutting off the undisputed beneficial relationship with Mother. Therefore, I would determine that the trial court’s decision to terminate is not supported by competent evidence. In re Adoption of J.J., 511 Pa. 590, 593-594, 515 A.2d 883, 885-886. I would vacate the order of termination and remand for a hearing in which this issue could be thoroughly explored.

The statutory basis for termination in this case is:

§ 2511. Grounds for involuntary termination
(a) General rule.— The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.
(b) Other considerations.—The court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child.

23 Pa.C.S. § 2511 (emphasis supplied). Section 2511(b) requires that investigation into any and all section 2511(a) grounds for termination be a two-step process. In determining whether the grounds for 2511(a)(5) are met, the court must determine: 1) removal from parental care for at least six months, 2) continued existence of conditions that led to the removal, 3) a finding that the parents cannot or will not remedy these conditions within a reasonable period of time, and 4) a finding that services available are not likely to bring about the remedy of the conditions. In re P.A.B., 391 Pa.Super. 79, 85, 570 A.2d 522, 525 (1990), petition for allowance of appeal filed 81 M.Alloc.Dkt. 90 (April 7, 1990).

If these preliminary factors exist, then a court proceeds to the second stage of analysis, whether, given the factual situation with which it is presented, termination will serve the needs and welfare of the child. This second step is not a mere formality following from existence of the four factors in part one; it is a discrete consideration. In re Adoption of B.J.R., 397 Pa.Super. 11, 13-15, 579 A.2d 906, 907-908 (1990); In re P.A.B., 391 Pa.Super. at 85, 570 A.2d at 525; In the Interest of Coast, 385 Pa.Super. 450, 561 A.2d 762 (1988), appeal denied 525 Pa. 593, 575 A.2d 560 (1990). If 2511(a)(5) is the pleaded ground, then the “needs and welfare” consideration receives double consideration, once in the first stage of finding the statutory requisites, because it is listed as a statutory factor in 2511(a)(5), and again when the court reaches the 2511(b) stage of analysis. This is fitting, because a § 2511(a)(5) situation is one in which the same agency that has already removed the child from the natural parent’s home and has assumed an active role in care for the child and in supervising visitation with the natural parent seeks to terminate the natural parent’s rights.

Not only is this second step a separate consideration, but it is one that often weighs against termination, rather than for it. In the Interest of Coast, In re P.A.B. It is significant that the legislature said that parental rights “may,” not “must” be terminated on any of the five grounds enumerated in 2511(a). This “may” is to be read with 2511(b), which, in the statute's context, clearly applies to all five grounds for termination, and which requires that the court “give primary consideration to the needs and welfare of the child.” A fair reading of the statute’s plain meaning yields that, if a parent is incapable of caring for the child, then a court may terminate a natural parent’s rights if no other factor counterweighs against termination, but a court is not compelled to terminate in any case.

In re P.A.B. established that where it was necessary to remove children from mentally disabled parents’ homes to provide the children with necessary care, termination may nevertheless not serve the child’s needs and welfare when an essential countervailing factor exists, specifically a bond with the natural parent. We emphasized that the unique and irreplaceable nature of the natural parent/child bond can become a compelling reason not to terminate. See also In re Coast, Beck, J. concurring. In In re P.A.B. there was no adoption pending. We held that termination was not warranted because it would remove from the children the irreplaceable bond with the natural parents with nothing to replace it.

In both this case and in In re P.A.B. the parent/child bond is a material factor. Unlike In re P.A.B., the foster parents want to adopt in this case. I cannot agree that the presence of adoptive parents alone allows us to disregard the parent/child bond where no evidence was given on the possible impact of termination of the parent/child relationship upon the children’s well-being. I believe that, in order to keep the children’s needs and welfare as the focal point, it must be recognized that termination is a drastic measure. Termination “does more than disrupt a parent/child relationship; it totally destroys it. ‘The termination of parental rights ... means that the child is dead so far as the parent is concerned.’ ” In re Adoption of Michael J. C., 326 Pa.Super. 143, 473 A.2d 1021, 1026 (1984), rev’d on other grounds, 506 Pa. 517, 486 A.2d 371 (1984), citing William L. The reverse is also true; the parent is dead as far as the child is concerned.

It seems to me that the trial court should look into the effect of the destruction of this relationship if it is going to determine what the children’s best interests are. Accordingly, I find no basis, either in the statute or in caselaw, for The majority’s conclusion that, “once a parent is adjudged incompetent under 2511(a) whereby family unity cannot be preserved, but where adoption is imminent, then there is no need to ascertain whether a beneficial bonding exists as between the natural parent and the children, nor whether additional factors counsel that continuing the relationship might otherwise serve the needs and welfare of the child.” The majority’s Opinion at 146-147.

The majority would hold that as a matter of law, where adoption is assured, termination of an incompetent parent’s rights conforms with the needs and welfare of the child. It suggests that entirely discounting the admittedly beneficial parent/child bond is compelled by the statute and that we must “leave it to our legislature to consider the propriety of this result.” Opinion at 149. To the contrary, I would decide that the statute does not compel this result:

If the language of the statute creates ambiguity in how it is to be applied to mentally impaired parents, then it is up to the legislature to clarify its application. Our responsibility as an appellate court is to consider the consequences, both legal and practical, of our interpretation. 1 Pa.C.S. § 1921(c)(6). Our underlying concern as we consider this case should be whether an application of 2511(a)(5) that permits termination of the rights of parents who love their children [and whom the children love] simply because the parents are retarded is consistent with the legislative intent. We conclude that the language of the statute does not require this interpretation.

In re P.A.B., 391 Pa.Super. at 85-86, 570 A.2d at 525.

The majority’s conclusion is premised upon its reading of In re William L., All Pa. 322, 383 A.2d 1228 (1978), cert. denied sub nom. Beatty v. Lycoming County Children’s Services, 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978), a reading with which I cannot agree. The majority reads William L. to hold that a finding of incurable incapacity of a mentally disabled parent is alone sufficient to require termination. To the contrary, I would conclude that In re William L. supports a remand for development of the record in this case.

The William L. court decided that the precursor termination statute to 23 Pa.C.S. § 2511, 1 P.S. § 311(2), did not violate parents’ due process rights by allowing termination when a natural parent’s incapacity, through no fault of the parent, causes the child to be without essential parental care. The court explained that the state has an affirmative duty to protect minor children which overrides the constitutional restraint on state interference in family matters; therefore, this restraint cannot compel the courts to protect parental rights at the expense of ignoring the rights and needs of children. In re William L., All Pa. at 337, 383 A.2d at 1236. The comment to the new statute incorporated this idea, stating that inquiry should focus on the welfare of the child rather than on the fault of the parent. 23 Pa.C.S. § 2511, Comment—1970.

However, William L.’s holding that the parent need not be at fault before his rights may be terminated does not mean that a finding of a parent’s incapacity alone warrants termination as a matter of law. The William L. court demonstrated the contrary by proceeding beyond the incapacity issue and conducting a thorough analysis of an adequate record to ascertain all factors that would bear upon the children’s welfare. As we recounted in In re P.A.B.:

The court considered whether the retardation prevented the mother from properly caring for her sons and by reviewing the evidence concluded that it did. However, it did not accept this conclusion as alone sufficient to meet the terms of the statute. The court found it necessary to carry its analysis one step further to discover whether, as a result of the parent’s inability to provide care:
[T]he parent-child relationship is substantially “weakened by long separation” and cannot be re-established.
William L, 477 Pa. at 350, 383 A.2d at 1242.

In re P.A.B., 391 Pa.Super. at 87, 570 A.2d at 526. Nothing in William L. suggests that the re-establishment of the relationship must lead to the child returning to the natural parent’s home. The court looked at the value of the relationship alone.

The court recognized two types of “ongoing family relationships” to consider under the second step in the analysis, the relationship with the natural parents, with whom the children no longer lived, and the relationship with the foster parents, with whom the children did live. The court accorded great weight to a potential relationship with the natural parents but found, under the facts before it, that the relationship was weakened by long separation and could not be re-established. Therefore, the court concluded that termination, which would facilitate a future adoption, was necessary:

In such circumstances, the issue is not whether the state should intrude to disrupt an on-going family relationship, but whether the state should seek to preserve in law a relationship which no longer exists in fact, with the result that the child is consigned indefinitely to the limbo of foster care or the impersonal care of institutions.

In re William L., 477 Pa. at 348-349, 383 A.2d at 1241 (emphasis supplied). See also In re Adoption of B.J.R.

In the present case the parent/child relationship exists in fact. Even CYS’ expert documented that Mother played an important role in the boys’ lives. The trial court found this relationship as a fact and the majority agrees. Mother now lives with a male friend who seems to contribute to the home’s stability and with whom the children also have a relationship. Significantly, both children testified that they have two mommies and two daddies and that they love both sets of “parents”:

Dr. Piercy [Patricia Piercy, Ph.D., a psychologist testifying for CYS] recalls the children commenting on their parents. She noted on record and in her attached report Erick’s comment that he has “two mommies and daddies,” but that he wanted to live with the mommy who was at the session [the natural mother] and the daddy who was at work—referring to his foster father. Louis referred to his foster parents as “mommy and daddy” and also expressed that he had “another mommy and daddy” whom he referred to as Big Lou and Beth [natural mother and her boyfriend]. At one point in the interview Louis indicated that he wanted to live with Beth and Big Lou, but at another time he stated that he would like to live with Marilyn and Ernie—referring to his foster parents. Louis’s ambivalence surfaced once again when asked his three favorite wishes, noting that one was to live with Beth and Big Lou, another was to live with Marilyn and Ernie, and a third was to live with both of them.

The majority Opinion at 137. This sort of bond between natural parent and child is unique and irreplaceable. It must be considered no matter what ground for termination is being advanced. This analysis would mandate a consideration of the effect of cutting off these boys from their mother and a balancing of this against the benefits that would inure to them through adoption.

I recognize that CYS’ goals for each of its cases is either “return to natural parents” or “adoption.” However, I do not accept the assumption that these are the only alternatives that may serve the child’s needs and welfare, nor do I accept the assumption that, statutorily, a plan proposing a different sort of arrangement is per se against the child’s best interests because it does not plan toward “stability.” Change of legal status from foster parenting to adoption may advance an abstract kind of stability while at the same time undermining the children’s needs and welfare. In the present case, I find no evidence in the record supporting why the status quo could not continue.

In In re P.A.B. we held that maintaining such a status quo would best serve the children’s needs and welfare. In the present case, if, after proper inquiry by the court, CYS is unable to establish that removing Mother from the children’s lives would serve the best interests of the children, on the present record I would conclude that maintaining the status quo might serve the children’s best interests more than would any other arrangement, including adoption. In this way, as in In re P.A.B., the children will have the benefit of both relationships. Dr. Piercy testified extensively about bonds with both sets of parents. Not one shred of negative testimony regarding the mother’s effect on the children surfaced. The children are not confused or otherwise negatively affected by ongoing relationships with both sets of parents. Termination/adoption might simplify things for other parties but not for the children.

In my understanding of the Adoption Act, it is insufficient for the party seeking termination of parental rights to produce evidence only on the parents’ incapacity, no matter how voluminous this evidence is. This constitutes only half the case. Under 2511(b), which applies to all grounds for termination, the party seeking termination must also produce evidence demonstrating that termination will serve the needs and welfare of the child. In the present case, as in In re William L., In re P.A.B. and In re Adoption of B.J.R., this means that it must be proved that termination of a parent-child relationship will not adversely affect the children. In each of these prior cases, the record demonstrated that the trial court heard evidence upon and considered the nature and the significance of the parent-child relationship. In the present case, the record is wholly inadequate on this issue. Therefore, I would remand for development of the record. If CYS cannot sustain its burden of proving, by clear and convincing evidence, Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) that the effect of cutting the children off from Mother will not be harmful, reversal of the termination order would be warranted.

      . The natural father, Louis C. Sr., had originally resided with Elizabeth and the children. Subsequently, he left the family and has since consented to the termination of his parental rights. Order of August 29, 1989.

      . We note that Ms. Supancic also testified from C & YS business records kept in the ordinary course of business concerning events prior to her assignment to the case.

      . The record is replete with references to the limited services available to persons in Elizabeth’s unique situation. Ms. Supancic noted on record a comment made by Avis Kotovsky from "Begin Again" that: "there really isn’t a program out there that would help a mentally retarded mom raise children, especially children that were having problems of their own____” H.T. August 29, 1989 at 11. For instance, of marginal utility was the Chartiers MH/MR program. The program involved partial hospitalization coupled with community living arrangements; unfortunately, at the time of Elizabeth’s participation the children already had been placed in foster care. H.T. August 29, 1989 at 9. Likewise, in-home services proved to be of little help for Elizabeth whose children were removed from the home.
      Kerrie Allenby, a Family & Community Services caseworker assigned to supervise visitation recalls Elizabeth ”look[ing] for programs, and I would look for programs, also, and I was not finding anything appropriate ... [n]one of the programs were appropriate.” H.T. August 29, 1989 at 52-53.

      . Ms. Supancic corroborated, noting that Elizabeth would need more than support services, but rather a 24-hour companion who was good with children in order to care for Louis and Erick’s special needs. H.T. August 29, 1989 at 42. We have not overlooked the potential support from her paramour Mr. Colvin who testified of his desire to assist in this capacity, yet without any legal commitment, we would be remiss in crediting his possible assistance.

      . Clear and convincing evidence is defined as:

        "testimony [that] is so clear, direct, weighty, and convincing as to enable the [factfinder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue."

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

      . Our supreme court has determined that "[t]he statutory basis for terminating, involuntarily, the rights of a parent with a mental or physical impairment is ... § 2511(a)(2).” In re Adoption of J.J., 511 Pa. 590, 607, 515 A.2d 883, 892 (1986).

      . See supra note 3.

      . We note that our decision is based not on abstract notions of Elizabeth’s mental incapacity or degree of retardation, but rather on concrete testimony of her incapacity to parent as witnessed first-hand by those testifying—or through competent evidence contained in records made in the ordinary course of business. See In re Adoption of J.J., 511 Pa. at 607, 515 A.2d at 892 (1986).

      . A note of clarification is in order. Care is to be taken not to confuse our analysis with that under section 2511(a). There, we are limited solely to the question of parental unfitness and, as such, it would be improper to consider the prospects of adoption in satisfaction of the statutory standard. See Santosky v. Kramer, 455 U.S. 745, 760, 102 S.Ct. 1388, 1398, 71 L.Ed.2d 599, 611 (1982). But cf., In the Interest of Coast, 385 Pa.Super. at 478-81, 561 A.2d at 776-77 (Beck, J., concurring) (concluding that section 2511(a)(5) demands a separate "needs and welfare” inquiry prior to reaching a "second” inquiry into “needs and welfare" under section 2511(b)). Judge Beck reasons that “[n]eeds and welfare is not a concept that fosters parental termination ... it is a concept that inhibits it.” While it is true that section 2511(b) “does not contain an additional ground for terminating parental rights; such grounds are contained in section 2511(a) only[,]” see In re Adoption of Michael J.C., 326 Pa.Super. 143, 159, 473 A.2d 1021, 1030 (1984) rev’d on other grounds, 506 Pa. 517, 486 A.2d 371 (1984), we believe, however, that once the statutory grounds under section 2511(a) are met, the prospects of adoption cannot be seen as “inhibiting” the termination of parental rights. That such is relevant to the inquiry under section 2511(b) is manifest.
      As the issue is not properly before us, we express no opinion as to the propriety of a “dual” “needs and welfare” analysis first under section 2511(a)(5), and then under section 2511(b).

      . Appellant does not contest the foster parents’ suitability in this respect. We note that Dr. Piercy testified as to the foster mother's competence in attending to the childrens’ special needs:
      one of the things that was very striking was the way in which [the children] involved the foster mother in their interactions. They were very engaging of her, and wanted her to observe what they were doing, participate in what they were doing.
      The foster mother was very involved with them, giving them feedback, giving them reenforcement, structuring them ... she did a fine job of setting limits, and they were very responsive to her limit-setting.
      H.T. August 25, 1989 at 13.


author: HOFFMAN, Judge:

text:
    584 A.2d 1028
    Anne Y. LOWER, Appellant, v. David A. LOWER. Anne Y. LOWER v. David A. LOWER, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1990.
    Filed Jan. 10, 1991.
    Petition for Allowance of Appeal Granted June 7, 1991.

      Mark Clement, Pittsburgh, for appellant (at 1884) and appellee (at 47).
    Michael A. Steger, Pittsburgh, for appellant (at 47) and appellee (at 1884).
    Before TAMILIA, MONTGOMERY and HOFFMAN, JJ.
   HOFFMAN, Judge:

These cross-appeals are from a court order enforcing the Separation and Property Settlement Agreement entered into by the parties in connection with their divorce. Wife contends that the trial court abused its discretion because it did not have jurisdiction to grant equitable relief. Alternatively, wife argues that if the trial court did have jurisdiction to grant such relief, it abused its discretion in not awarding her continuing alimony. Husband’s primary contention is that the trial court erred in failing to award him attorney’s fees. For the following reasons, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

The parties were married on May 13, 1960, and separated in late July, 1976. On April 18, 1977, the parties entered into a Separation and Property Settlement Agreement (“Agreement”). The parties were divorced on August 1, 1977. The divorcé decree does not mention the Agreement. On June 7, 1988, husband was granted leave by the court to enforce the Agreement. Subsequently, on August 9, 1988, husband filed a complaint seeking enforcement of the Agreement. On November 28, after wife’s preliminary objections were dismissed, wife filed her answer, new matter, and counterclaim for continuing alimony. Following an April 4, 1989 bench trial, the court entered an order on April 27, 1989 in which, inter alia, it directed wife to vacate the marital home within thirty days and the parties to enter into a listing agreement with a real estate broker to sell the marital home as per the Agreement. Husband filed post-trial motions, and wife responded and requested her own post-trial relief. The court heard argument on July 21, 1989. On November 8, 1989, the court issued its opinion and order modifying its earlier order as follows:

2. The Defendant’s motion for post-trial relief be granted and that the Order entered on April 27, 1989, be modified as follows:
* * * * * #
4. The Husband shall be entitled to a credit for the fair rental value of the marital residence from February 5, 1988 until the date that the wife vacates the marital residence, which rental value shall be calculate [sic] at the rate of One Hundred Eighty-Seven and 50/100 (187.50) Dollars per month. This credit for rental value shall be paid to the Husband at the time of sale of the marital residence and shall bear interest at the rate of six (6%) per annum.

Order of Court, November 8, 1989 at 1-2. Wife filed a timely appeal. Husband filed a timely cross-appeal.

I. WIFE’S APPEAL

Wife first contends that the trial court abused its discretion by granting equitable relief, in the form of specific performance, to her husband. Specifically, wife claims that although the Divorce Code, see 23 Pa.C.S.A. § 110, et seq., authorizes the court to enforce an agreement between the parties through equitable remedies, the Agreement here predated the Divorce Code, and the Divorce Code is not to be applied retroactively. Furthermore, argues wife, as a matter of contract law, the trial court abused its discretion by granting the equitable relief represented in paragraphs 2.2 and 2.3 of its order. We agree.

In determining the rights of parties who have entered a marital agreement that predates the Divorce Code, the court must apply pre-Divorce Code law. Casper v. Casper, 359 Pa.Super. 559, 561, 519 A.2d 493, 495 (1986), allocatur denied, 516 Pa. 631, 533 A.2d 90 (1987). A property settlement agreement between parties who are involved in or contemplating divorce, which was entered into prior to the Divorce Code, will be enforced in accordance with the rules of law generally applicable to determining the validity of contracts. D’Huy v. D’Huy, 390 Pa.Super. 509, 518, 568 A.2d 1289, 1293 (1990) (citations omitted); VanKirk v. VanKirk, 336 Pa.Super. 502, 505, 485 A.2d 1194, 1196 (1984). Such contracts are enforceable in assumpsit and in equity by specific performance. See Sonder v. Sonder, 378 Pa.Super. 474, 494, 549 A.2d 155, 162 (1988). Our Supreme Court has emphasized, however, that “specific performance is an equitable remedy not available as a matter of course but only in unique situations.” Pugh v. Holmes, 486 Pa. 272, 295, 405 A.2d 897, 908 (1979) (citing 11 S. Williston, Contracts § 1418A (3d ed. 1968); Murray, On Contracts—A Revision of Grismore on Contracts, § 183, Mutual Performances in Leases—The Implied Warranty of Habitability (1974)). Moreover, whether specific performanee is justified in a breach of contract case is within the discretion of the trial judge. Petry v. Tanglewood Lakes, Inc., 514 Pa. 51, 57, 522 A.2d 1053, 1055 (1987). The court’s decision turns upon the particular facts of the case and the weighing of the equities in each situation. Id. The court should grant specific performance only where an adequate remedy at law does not exist and where justice requires it. Cimina v. Bronich, 517 Pa. 378, 383, 537 A.2d 1355, 1358 (1988).

Here, because the parties’ Agreement predated the Divorce Code, it must be enforced as a contract. See D’Huy v. D’Huy, supra. The Agreement, in relevant part, provides:

[H]ome at 625 Dorseyville Road will be available exclusively to Wife as a home until Wife remarries, leaves the home by establishing any home elsewhere, or until the youngest unemancipated living child who lives with Wife attains eighteen (18) years of age at which time of the happening of the earliest such event, the house must be sold and both Husband and Wife must cooperate to the extent necessary to attain the best price for the sale of such home. In the event that a sale agreement is not entered into by the parties with one of the parties or others within two (2) months after the happening of the earliest such event noted above, Wife must vacate the home.

Separation and Property Settlement Agreement at 4. The issue we must address is whether the lower court fashioned a proper remedy in ordering specific performance upon wife. The remedy fashioned by the court, of course, followed the letter of the parties’ Agreement. Nevertheless, there is no record evidence indicating that the situation presented here is so unique that “justice requires” an extraordinary remedy such as specific performance. See Cimina v. Bronich, supra. Moreover, the trial court did not state its reasons for ordering specific performance, see Trial Court Opinion at 2-3, and husband has not suggested either here or in the court below a reason why specific performance is the only remedy that could make him whole. In addition, the court did not state that it found justice to require this remedy as opposed to monetary damages. See Cimina v. Bronich, supra. Finally, there is no apparent “inadequacy” in husband’s remedy at law. See Petry v. Tanglewood, Lakes, Inc., supra. Under the Agreement, husband would be entitled to a lump sum of $10,000.00 plus the return of his principal payments on the mortgage. The sale of the house serves as the triggering mechanism for when these amounts would be due. These damages are easy to calculate, and husband would be made whole upon payment, regardless of whether the house was sold. These circumstances convince us that the trial court abused its discretion when it enforced the contract between husband and wife through specific performance, ordering wife to vacate the premises and enter into a listing agreement to sell the marital residence. We, therefore, reverse that part of the trial court’s order, i.e., sections 2.2 and 2.3, and remand for a determination of the amount due husband under the contract.

Wife’s second contention is that the court should have awarded her permanent alimony. Specifically, wife argues that the parties’ Agreement is clear and unambiguous on this point, and, therefore, the trial court should not have considered testimony from the parties regarding their intentions in interpreting the Agreement. When a contract is clear and unambiguous, the parties’ intent is to be determined only from the express language of the agreement. Steuart v. McChesney, 498 Pa. 45, 49, 444 A.2d 659, 661 (1982). “A contract is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense.” Walton v. Philadelphia Nat’l Bank, 376 Pa.Super. 329, 341, 545 A.2d 1383, 1389 (1988) (citation omitted). A court determines if a contract is ambiguous as a matter of law. Id. Upon finding an ambiguity, a court may, examine the surrounding circumstances—i.e., extrinsic or parol evidence—to ascertain the intent of the parties and resolve the ambiguity. Id. (quoting Greene v. Oliver Realty, Inc., 363 Pa.Super. 534, 526 A.2d 1192 (1987), allocatur denied, 517 Pa. 607, 536 A.2d 1331 (1987)). See also D’Huy v. D’Huy, supra.

Here, the Agreement provided for husband to pay wife a monthly lump sum to be reduced periodically when each of their children reached the age of eighteen. The Agreement, in relevant part, reads as follows:

2. That Husband will pay Wife:
(a) $500 per month plus mortgage payment as long as Wife remains unmarried, all children are under eighteen years of age, all children unemancipated [sic], all children live with Wife, and the home in which Wife and children live is known as 625 Dorseyville Road____
(b) Upon each child attaining eighteen years of age or leaving the home at 625 Dorseyville Road ... without being supported elsewhere by Wife or becoming emancipated, the support will be reduced $75 until the youngest unemancipated living child who lives with Wife or is being supported by Wife elsewhere than at 625 Dorseyville Road attains eighteen years of age at which time all support will cease.

Separation and Property Settlement Agreement at 2. Although the Agreement stated that “support” will continue in the event of wife’s remarriage until the youngest child reaches eighteen, id. at 2, the parties did not define “support.” The parties also used the word “alimony” in discussing the tax consequences of their financial arrangement:

(f) All payments over and above $75 per month per child plus the mortgage payment will be taken as alimony payments to Wife and such sums will be income to Wife upon which she will be required to consider as income ... such sums will be deductible from Husband----

Id. at 3. Close examination of the Agreement, however, reveals that the parties also failed to define that term.

The failure to define “support” and “alimony” makes precise interpretation of the Agreement impossible. For example, the Agreement states that all “support” shall cease when the youngest child reaches eighteen. Yet, it does not clarify whether the additional portion of the monthly sum above $75.00 per child, i.e., the “alimony” or spousal support payments, are included in the cessation of “support.” Because the parties failed to define these two key terms in the Agreement, its meaning is ambiguous, and the court did not err in concluding that more evidence was needed to determine the parties’ intent. We conclude, therefore, that the trial court acted properly in considering extrinsic evidence, together with the written Agreement, to find that “the declared intention of the parties was that all support, whether child or spousal, was to cease upon the eighteenth (18th) birthday of the youngest child.” Trial Court Opinion, November 8, 1989 at 5. See also Walton v. Philadelphia Nat'l Bank, supra. Because this conclusion was supported by the evidence, the court did not err in refusing to award wife permanent alimony.

II. HUSBAND’S APPEAL

Husband contends that the trial court erred in not awarding him attorney’s fees. Specifically, he argues that since wife’s conduct was “obdurate and dilatory,” Husband’s Brief at 12, the trial court should have awarded him attorney’s fees. We disagree. “The court may require a party to pay another participant’s counsel fees if the party’s conduct in commencing the action was ‘arbitrary, vexatious or in bad faith.’ ” Santilo v. Robinson, 383 Pa.Super. 604, 606, 557 A.2d 416, 417 (1989) (citing 42 Pa.C.S.A. § 2503; Brenckle v. Arblaster, 320 Pa.Super. 87, 466 A.2d 1075 (1983)). Furthermore, it is well-settled that we will not reverse the trial court on its decision whether to award counsel fees absent an abuse of discretion. Wayda v. Wayda, 395 Pa.Super. 94, 112, 576 A.2d 1060, 1069 (1990) (citations omitted). Here, after carefully reviewing the record and the parties’ briefs, we agree with wife and the trial court that the record shows that “the continuing dispute between the parties was one that had to be resolved by a third party.” Trial Court Opinion, November 8, 1989 at 9. Furthermore, we are satisfied that the trial court has adequately set forth the relevant facts, and properly addressed and disposed of this issue in its opinion. See id. at 9. Accordingly, we affirm the trial court’s disposition of this issue.

For the foregoing reasons, we vacate sections 2.2 and 2.3 of the court’s November 8, 1989 order and remand for proceedings consistent with this opinion. In all other respects we affirm the trial court’s order.

Order affirmed in part, vacated in part, and remanded to the court below.

Jurisdiction relinquished.

      . See 23 Pa.C.S.A. § 401(k), which provides, in relevant part, that: (k) If at any time, a party has failed to comply with ... the terms of an agreement as entered into between the parties, after hearing, the court may, in addition to any other remedy available under this act, in order to effect compliance with its order:
      (1) enter judgment;
      (2) authorize ... the collection of the rents and profits of the real and personal ... property of the party;
      (3) award interest on unpaid installments;
      (4) order and direct the transfer or sale of any property required in order to comply with the court’s order____

      . Wife also contends that the trial court erred in granting husband a credit for the fair rental value of the marital residence until the date wife vacates the premises. See Trial Court Order, November 8, 1989 at 2. Because rental value was not originally part of the Agreement, the court’s granting of this relief to husband was not specific performance. Thus, wife’s argument regarding this section of the court’s order is meritless.

      . Husband also contends that the trial court erred because it did not award interest on the $10,000.00 lump sum payment and the principal payments owed to him by his wife upon the sale of the marital residence. However, in light of our disposition of wife’s first claim, there is no need for us to decide this issue at this time. Upon remand, the trial court will take into consideration husband's claim in fashioning a new remedy. We also note that because the date of the sale of the house is the trigger for husband’s payments to become due, and we have found that the court cannot force wife to sell the marital residence, the trial court will have to decide anew the date upon which husband’s award becomes, or should become, due, and whether interest is appropriate.


author: JOHNSON, Judge.

text:
    584 A.2d 1033
    FLICK CONSTRUCTION, INC., Appellant, v. Robert F. DYKE, Gary L. Dyke and Larry L. Dyke, Executors of the Estate of Jane E. Dyke, Deceased and Kenneth G. Deitrich.
    Superior Court of Pennsylvania.
    Submitted Sept. 4, 1990.
    Filed Jan. 11, 1991.
    Charles A. Schneider, Bellefonte, for appellant.
    Christine T. Cosgrove, Bethel Park, for Dyke, appellee.
    Kenneth G. Deitrich, pro se.

      Before CAVANAUGH, BECK and JOHNSON, JJ.
   JOHNSON, Judge.

This is an appeal from an order striking from the record Flick Construction, Inc.’s mechanics’ lien claim. We are asked to consider the validity of a purported claim where the kind and character of the labor or materials furnished has not been set forth in the claim pursuant to Section 503 of the Mechanics’ Lien Law of 1963, 49 P.S. § 1503. Finding that Flick Construction has failed to satisfy either subsection (5) or subsection (6) of Section 503, we affirm.

Robert F. Dyke, Gary L. Dyke and Larry L. Dyke, appellees herein, executed an agreement for the sale of property to Kenneth G. Deitrich. Flick Construction’s mechanics’ lien claim averred a direct and oral contract with Deitrich for work performed on the property. Flick Construction claimed that Deitrich was an owner and was acting as an agent with full authority for the other owners, appellees Dyke.

The trial court concluded that Flick Construction did not have a contract with the owner, that it could not claim “subcontractor” status, and that if it could, the preliminary notice required of a subcontractor was not filed. The court further concluded that Flick Construction violated § 503(1) of the Mechanics’ Lien Law, 49 P.S. § 1503(1), by claiming “subcontractor” status on the notice of intent, which was never filed with the court, and subsequently claiming “contractor” status upon filing the mechanics’ lien claim. Finally, the court concluded that Flick Construction did not detail the work performed as required by 49 P.S. §§ 1503(5) and 1503(6). Thus the mechanics’ lien claim was struck on April 19, 1990. This appeal followed.

Flick Construction raises four issues on appeal:

I. Whether the sending of Notices of Intent, which were not filed, followed by the filing of a Mechanics’ Lien claim alleging contractor status was a violation of the Mechanics’ Lien Law.
II. Whether the defendant, Deitrich, was acting as agent of the defendants, Dyke, when he contracted with the plaintiff.
III. Whether the contract between Deitrich and Flick Construction was sufficiently identified under the Mechanics’ Lien Law.
IV. Whether the court below should have had testimony taken on the factual issues raised with respect to Flick Construction’s status as contractor.

We affirm the trial court’s conclusion that the mechanics’ lien claim is invalid on its face because the work performed was not detailed in accordance with 49 P.S. §§ 1503(5) and 1503(6).

It is well established that strict compliance with the Mechanics’ Lien Law is necessary in order to effect a valid claim. Brann & Stuart Company v. Consolidated Sun Ray, Incorporated, 433 Pa. 574, 253 A.2d 105 (1969), cert. denied 396 U.S. 840, 90 S.Ct. 102, 24 L.Ed.2d 91 (1969). The pertinent provisions read as follows:

§ 1503. Contents of Claim
The claim shall state:
(5) if filed by a contractor under a contract or contracts for an agreed sum, an identification of the contract and a general statement of the kind and character of the labor or materials furnished;
(6) in all other cases than that set forth in clause (5) of this section, a detailed statement of the kind and character of the labor or materials furnished, or both, and the prices charged for each thereof;

49 P.S. § 1503, emphasis added.

As found by the trial court, Flick Construction’s mechanics’ lien claim does not aver an agreed upon sum as required by subsection 1503(5). Consequently, a detailed statement of the labor and materials furnished and the prices charged for each is required pursuant to subsection 1503(6). Flick Construction’s mechanics’ lien claim does not provide this information.

We do not reach Flick Construction’s issues I, II, and IV, the resolution of which could not overcome the claim’s facial deficiencies under subsections 1503(5) and 1503(6).

Since strict compliance with the 1963 Law is required, and since Flick Construction has neither satisfied the requirements of subsection 1503(5) nor 1503(6), we need not consider the other issues considered in the well-reasoned Opinion of the Honorable David E. Grine, the distinguished trial judge. We affirm the Order striking from the record Flick Construction, Inc.’s mechanics’ lien claim.

Order affirmed.