text:
    629 A.2d 974
    Robert K. WOODIN and Alice D. Woodin, Appellants, v. J.C. PENNEY COMPANY, INC., Appellee, v. REVCO, INC., A DIVISION OF RHEEM MANUFACTURING CO., Admiral Industries, Inc., A Division of Magic Chef, Inc., Hardwick, Maytag Corp. and White Consolidated Industries, Inc. — Freezer Division (Formerly Franklin Manufacturing Co.), A Division of White Consolidated Industries, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued April 13, 1993.
    Filed Aug. 6, 1993.

      Christian T. Mattie, III, Eldred, for appellants.
    Robert S. Garrett, Pittsburgh, for appellees.
    Before WIEAND, POPOVICH and HESTER, JJ.
   WIEAND, Judge:

In this action to recover fire damage attributed by plaintiffs to a defectively manufactured freezer cord, the trial court set aside a verdict for the plaintiffs and entered judgment n.o.v. in favor of the defendant seller and manufacturer. Plaintiffs appealed. We affirm.

Early in 1979, Robert and Alice Woodin purchased a chest type freezer from J.C. Penney Company, Inc. The freezer had been manufactured by White Consolidated Industries, Inc. It was delivered by Penney’s employees and placed in the northeast corner of the utility room located on the first floor of the Woodin home. The utility room was approximately eighteen (18) feet wide and eight (8) feet long, had wood panelled walls and a plywood floor finished with Armstrong linoleum. The back of the freezer was placed along the east wall of the room, and the left end of the unit was positioned along the north wall. Only two and one-half (2/6) feet of unoccupied space existed between the right end of the freezer and the south wall of the room. Because the power cord, which extended from the unit’s compressor in the back, left corner of the freezer, was of insufficient length, an extension cord was used to connect the freezer to the electrical outlet located at the southeast comer of the room.

For more than eight years the freezer operated continuously without complaint. On December 2,1987, the Woodins left their home at or about 9:30 a.m. A fire was reported about noon. Alleging that the fire had been caused by a defect in the power cord, the Woodins filed suit against J.C. Penney, which, in turn, joined White, the manufacturer, as an additional defendant.

At trial, the plaintiffs relied on the testimony of expert witnesses that the fire had been caused by a short circuit in the power cord near the unit’s compressor. The defendants contended, however, that the fire had not originated in the area of the compressor and that it could not have been started by a short circuit in the power cord. A jury returned a verdict for the plaintiffs for $67,850.00, the amount of the damages stipulated by the parties. The trial court overruled the jury’s verdict because there was an absence of evidence identifying any defect in the cord of the freezer and because the verdict, therefore, could be based on nothing but speculation.

The standard of review on appeal was recently stated by the Supreme Court in Moure v. Raeuchle, 529 Pa. 394, 604 A.2d 1003 (1992), as follows:

In reviewing a motion for judgment n.o.v., “the evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor.” Broxie v. Household Finance Company, 472 Pa. 373, 380, 372 A.2d 741, 745 (1977). See also, Metts v. Griglak, 438 Pa. 392, 264 A.2d 684 (1970) and Gonzalez v. United States Steel Corp., 484 Pa. 277, 398 A.2d 1378 (1979). Moreover, [a] judgment n.o.v. should only be entered in a clear case and any doubts must be resolved in favor of the verdict winner. See Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 414 A.2d 100 (1980) and Stewart v. Chemicky, 439 Pa. 43, 266 A.2d 259 (1970).

Id. at 402, 604 A.2d at 1007. See also: Lowry v. State Farm Insurance Companies, 392 Pa.Super. 77, 572 A.2d 700 (1990), allocatur denied, 527 Pa. 601, 589 A.2d 692 (1990).

It is well settled that in order to recover on a theory of strict product liability, a plaintiff must prove that (1) the product was defective; (2) the defect was the proximate cause of the plaintiffs injuries; and (3) the defect existed at the time it left the manufacturer’s control. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 93-94, 337 A.2d 893, 898 (1975); Roselli v. General Electric Co., 410 Pa.Super. 223, 229, 599 A.2d 685, 688 (1991), allocatur granted, 530 Pa. 645, 607 A.2d 255 (1992), appeal discont'd, January 11, 1993. Generally, a plaintiff will produce direct evidence of a product’s defective condition. In those cases where the plaintiff is unable to prove the precise nature of the product’s defect, however, he may, in some cases, rely on the “malfunction theory” of product liability. Rogers v. Johnson & Johnson Products, Inc., 523 Pa. 176, 182, 565 A.2d 751, 754 (1989). The malfunction theory allows the plaintiff to use circumstantial evidence to establish a defective product. In Rogers v. Johnson & Johnson Products, Inc., supra, the court stated:

[The malfunction theory] permits a plaintiff to prove a defect in a product with evidence of the occurrence of a malfunction and with evidence eliminating abnormal use or reasonable, secondary causes for the malfunction. [The plaintiff is relieved] from demonstrating precisely the defect yet it permits the trier-of-fact to infer one existed from evidence of the malfunction, of the absence of abnormal use and of the absence of reasonable, secondary causes.

Id. (citations omitted). Although proof of a specific defect is not essential to establish liability under this theory, the plaintiff cannot depend upon conjecture or guesswork. “The mere fact that an accident happens, even in this enlightened age, does not take the injured plaintiff to the jury.” Stein v. General Motors Corp., 58 D. & C.2d 193, 203 (Bucks 1972), aff'd, 222 Pa.Super. 751, 295 A.2d 111 (1972).

The freezer in the instant case had functioned flawlessly for more than eight (8) years. Appellants testified that they had at no time observed wearing or deterioration of the power cord. In Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974), the Supreme Court stated as follows:

We recognize that, as a general rule, “prolonged use of a manufactured article is but one factor, albeit an important one, in the determination of the factual issue whether [a defect in design or] manufacture proximately caused the harm.” The age of an allegedly defective product must be considered in light of its expected useful life and the stress to which it has been subjected. In most cases, the weighing of these factors should be left to the finder of fact. But in certain situations the prolonged use factor may loom so large as to obscure all others in a case. Professor Prosser has summarized the position generally taken by the courts on this question: “[Lapse of time and long continued use] in itself is not enough, even when it has extended over a good many years, to defeat the recovery where there is satisfactory proof of an original defect; but when there is no definite evidence, and it is only a matter of inference from the fact that something broke or gave way, the continued use usually prevents the inference that the thing was more probably than not defective when it was sold.”

Id. at 336, 319 A.2d at 923 (citations omitted).

Here, there was no evidence to identify any defect in the freezer cord at the time the freezer was sold. Thus, the occurrence of the fire alone did not give rise to an inference of a defect at the time of manufacture. Richard Brugger, a professional engineer, expressed the opinion that the cord was “not adequate.” However, he conceded that he had never examined an undamaged freezer cord, and when the damaged cord which had been attached to appellants’ freezer was shown to him, he was unable to identify any defect therein. His opinion, he said, was based on evidence that a short circuit had occurred in the power cord, but he conceded that short circuits can and frequently do occur during fires because the intense heat generated by an external fire destroys wire insulation.

Under these circumstances, we agree with the trial court that the evidence was insufficient to prove a defect in the cord at the time of manufacture and sale of the freezer unit. Where, as here, the freezer had functioned flawlessly during eight (8) years of continuous operation and plaintiffs’ evidence was unable to identify any specific defect therein, the jury could not properly infer the existence of a defect from the occurrence of a fire. The jury’s verdict, therefore, as the trial court appropriately observed, could only be a product of speculation. There was no evidence to support a finding that the freezer was defective when sold.

In making this determination, we have not considered the serious discrepancies in the testimony of plaintiffs’ experts who sought to place the start of the fire in the northeast corner of the utility room near the freezer cord and unit compressor. We have examined the testimony offered by these witnesses on direct and cross-examination and agree that the credibility of the opinions which they expressed was largely destroyed by inconsistencies and weaknesses, including burn patterns suggesting that the fire had started in the southeast corner of the room where the electrical outlet and extension cord were located. Credibility issues, however, were for the jury, and the trial court could not base a judgment n.o.v. on its disbelief of the opinions expressed by plaintiffs - witnesses.

Judgment affirmed.

      . The power cord attached to appellants’ freezer was comprised of three 18 gauge wires, each of which consisted of 16 individual strands of wire twisted and held together by insulation.

      . Plaintiffs’ experts were also unable to explain, if the fire had started in the northeast corner of the room where the compressor and cord were located, why the paint on the freezer above the compressor remained intact and without damage after the fire.

      . A trial court may award a new trial on grounds that a verdict is contrary-to the weight of the evidence. See: Dox Planks of Northeastern Pennsylvania, A Division of Romani Industries v. Ohio Farmers Insurance Co., 423 Pa.Super. 311, 621 A.2d 132 (1993); Dierolf v. Slade, 399 Pa.Super. 9, 581 A.2d 649 (1990). Such an argument was made by the defendant-appellees in the trial court, but that court, having entered a judgment n.o.v., did not reach and consider the motions for new trial.


source: Caselaw Access Project

author: CAVANAUGH, Judge: WIEAND, Judge

license: Public Domain

text:
    629 A.2d 977
    Marcia J. SNYDER, Appellee, v. Charles E. SNYDER, Appellant.
    Superior Court of Pennsylvania.
    Argued April 29, 1993.
    Filed Aug. 6, 1993.

      James A. Cunningham, Blue Bell, for appellant.
    Martin P. Mullaney, Lansdale, for appellee.
    Before CAVANAUGH, WIEAND and HOFFMAN, JJ.
   CAVANAUGH, Judge:

This appeal is from a Final Protection From Abuse Order which, inter alia, granted appellant’s spouse sole and exclusive possession of the marital residence. The appellant raises three claims of error. We find the appellant’s arguments unpersuasive and affirm.

The Petition For Protection From Abuse sub judice was filed pro se on October 19, 1992 in Montgomery County by appellee Marcia Snyder. The Petition the appellee filed is a standard form with various blanks to fill in or boxes to check in order to record pertinent information. Significant to this appeal she responded to the Petition’s inquiries that on September 9, 1992, an incident of physical and verbal abuse occurred in the marital residence by appellant Charles Snyder. The appellee further alleged that the appellant:

was physically overpowering & threatened sexual abuse. He inflicted me with bruises about my arms, legs & hips. He screamed at me & called me names throughout the night while the children were trying to sleep.

The appellee requested the following relief by checking off preprepared items listed as “relief’: (1) the defendant refrain from abusing, harassing or threatening the Plaintiff, or any Child or Relative of the plaintiff, in any place where they may be found; (2) the defendant be granted exclusive possession of the marital residence (located at 492 Hoffmansville Rd., Bechtelsville, PA); (3) the defendant be prohibited from having any direct contact with the plaintiff, plaintiffs relatives and/or children, either directly, or in writing or by telephone; (4) the Plaintiff be granted temporary legal and physical custody of the children; (5) the defendant be directed to turn his weapons over to the police or sheriff, until further order of the court; and (6) the defendant be directed to refrain from contacting friends and co-workers of the plaintiff.

A hearing was held before the Hon. Maurino J. Rossanese, Jr. on October 29,1992. Pertinent to this appeal, the appellee was not limited by the court to describing the September 9th incident described in her petition. Rather, the court allowed the appellee over the appellant’s objection to describe two prior recent incidents which she had with the appellant, the appellee having asked “to demonstrate that [the incidents] have been escalating and where we’ve come and where we’re going.”

In testifying about the progressively worse incidents of abuse, the appellee testified that the following three incidents occurred. Appellee claimed that on June 20, 1992, her husband had attempted to prevent her from going to a dinner for a co-worker who was leaving the company. The appellant called her names, followed her around and screamed in her face all day, and stole her car keys. On August 2, 1992, the appellee testified that when she came home from work, her husband was waiting for her behind the door. Her husband attempted to grab/her purse and her keys. When the appellee entered her car to leave, the appellant came after her and dragged her out, after which he finally let her go. Finally, on September 9th, the wife testified that the husband restrained her in a bathroom while screaming at her. She stated that he would later grab her and throw her down on a couch and strangle her. Still later the appellant allegedly picked the appellee up and tossed her down onto the kitchen floor. He threatened to have sex with her against her will. The appellant claimed to have bruises on her arms and legs after the incident. Throughout this incident the appellant allegedly was screaming at the wife, and at one point followed her into the children’s bedroom while they were sleeping.

The appellee testified that she did not immediately report the September 9th incident to the police. The appellee was eventually able to convince her husband to leave home, partly by threatening to get a restraining order against him, while the appellee stayed at the marital residence. However, when the appellee left to go on a two-week business trip in early October (after leaving the children with her parents), the appellant re-entered the marital residence and looked through her personal things. He also tried to regain custody of his children from the appellee’s parents. When the wife returned to the marital residence after her trip, the husband refused to leave, claiming that the house was as much his as it was hers. The appellee then filed a Protection From Abuse Petition the next day.

The appellant testified that these incidents usually occurred after appellant had been drinking, and that he had a Dr. Jekyll/Mr. Hyde personality when he consumed alcohol. She specifically testified that the last two incidents occurred while the appellant was under the influence.

Two witnesses corroborated parts of appellee’s story. The appellee’s pastor, Rev. John Raymond Centrella, recounted that on August 2nd, the appellee appeared distressed at a picnic his church was holding. He related that appellee came to the picnic crying and that, when asked what was wrong, she told him that her Husband had pushed and shoved her around. He testified that she had bruises on her arm. Appellee’s mother also testified that following the August 2nd and September 9th incidents her daughter was bruised and told her about the fights between her and the appellant.

The appellant, when he testified, did not deny that incidents occurred. He stated that the June 20th incident simply involved name calling on his part and no physical abuse. He admitted that during the August 2nd incident he restrained the appellee for a period of ten-fifteen minutes by grabbing her arms. Finally, during the September 9th incident, he related that pushing and shoving on both sides went on, and that he had restrained his wife like he had done at the August 2nd incident. He confessed also to being drunk at the September. 9th incident, and that he had a drinking problem.

After hearing all the evidence and listening to closing arguments, the trial court issued an Order which, inter alia, prohibited the appellant from returning to the marital residence for a period of six months. The Court rejected the appellant’s argument that the incidents sub judice were not of sufficient gravity to fall within the confines of the Protection From Abuse Act. The court decreed that the escalating nature of the couple’s fights, plus the two incidents where physical contact occurred, made this a case falling within the Protection From Abuse Act’s proscriptions. It is from the court’s Order that this appeal arises.

The appellant raises three issues on appeal: (1) whether the lower court erred in admitting, over appellant’s objection, evidence of abuse incidents not pleaded in her petition; (2) whether the court erred in finding that the evidence presented was sufficient to establish that abuse occurred as defined by the Protection From Abuse Act; and (3) whether the court erred in directing as a remedy the exclusion of the husband from the jointly owned marital residence where less burdensome alternative remedies existed.

The first issue raised by appellant is whether the lower court erred in admitting, over his objection, evidence of prior abuse incidents not “pleaded” in his wife’s Petition. The appellant claims that the examination of prior incidents of abuse is tantamount to recovering on different “causes of action” than the one that appears in the wife’s Petition. He notes that only the September 9th incident appears as a “cause of action” in the wife’s Petition. The appellant asserts that it is a fundamental principle of law that a defendant should not be called to defend against matters of which he has no notice in the pleadings. Quinlan and Robertson v. Rundle, 273 Pa. 479, 117 A. 208 (1922); Pa. R. Co. v. Pittsburgh, 335 Pa. 449, 6 A.2d 907 (1939); see also Cantwell v. Cantwell, 179 Pa.Super. 452, 115 A.2d 801 (1955).

We are unpersuaded by appellant’s analogy comparing incidents of abuse in an Abuse Petition with causes of action in a civil complaint. The Protection From Abuse Act was not, nor was meant to be, a statute penalizing past criminal conduct. Rather, the primary goal of the act is not retrospective punishment but “advance prevention of physical and sexual abuse.” Eichenlaub v. Eichenlaub, 340 Pa.Super. 552, 560, 490 A.2d 918, 922 (1985), quoting Commonwealth v. Allen, 506 Pa. 500, 515, 486 A.2d 363, 370 (1984). We have described the Act as a “vanguard measure dealing with the problems of wife and child abuse.” Cipolla v. Cipolla, 264 Pa.Super. 53, 55 n. 1, 398 A.2d 1053, 1054 n. 1 (1979). In passing the statute, the legislature recognized that existing legal remedies were inadequate to deal with this horrific problem and that a new way of proceeding would be more efficacious. See D. Flynn, “Domestic Relations — The Protection From Abuse Act — Pa. Stat.Ann. tit. 35, §§ 10181-10190 (Purdon Supp.1977),” 51 Temple L.Q. 116, 116-20 (1978); Comment, “Spouse Abuse: A Novel Remedy for a Historic Problem,” 84 Dickinson L.Rev. 147, 153-5 (1980); Note, “Relief for Victim of Intra-Family Assaults: The Pennsylvania Protection From Abuse Act,” 81 Dickinson L.Rev. 815 (1977).

We believe that the statute does not anticipate that a person filing a Petition will be rigorously limited to the specific allegations of abuse found in that Petition. The statute provides simply that in commencing a proceeding under the Act, a Petition must be filed with a court alleging abuse by a defendant:

§ 6106. Commencement of proceedings
(a) General rule. — An adult or an emancipated minor may seek relief under this chapter for that person or any parent, adult household member or guardian ad litem may seek relief under this chapter on behalf of minor children, or a guardian of the person of an adult who has been declared incompetent under 20 Pa.C.S. Ch. 51 Subch. B (relating to appointment of guardian) may seek relief on behalf of the incompetent adult, by filing a petition with the court alleging abuse by the defendant.

Similarly, the statute provides in § 6107 that the plaintiff must prove, by a preponderance of the evidence, an allegation of abuse. Finally, the statute provides in § 6108, entitled “Relief,” that the court may grant any protection order or approve any consent agreement to bring about a cessation of abuse. Accordingly, the statute’s tenor is to focus on the prevention of abuse in the generic sense. The statute does not provide, we believe purposefully, what detail allegations of abuse must be made, or whether a Petitioner can bring up at trial incidents or details not written down in the Petition.

In Eichenlaub v. Eichenlaub, supra, we had to decide whether a provision in the Protection From Abuse Act violates the United States and Pennsylvania Constitutions because it denies the right to a jury trial for those charged with indirect criminal contempt under the Act. We held that the provision was Constitutional, recognizing that the provision was one of several which enabled a court to respond quickly and flexibly to advance warnings of abuse. Id. 340 Pa.Super. at 560-2, 490 A.2d at 922-3. We quoted with approval the trial court’s reflections as to the Act’s purpose as applied to a contempt proceeding under the Act:

The emergency nature of the judicial process pursuant to the Protection From Abuse Act requires that this Court act swiftly to prevent continued abuse and deal with contempt situations in an expeditious manner lest the violation giving rise to the contempt become a criminal action for homicide. Faced with life and death situations, this Court must utilize its expertise in such matters to enforce its orders without the time delay involved in a jury trial. To afford a jury trial in all instances of indirect criminal contempt for violation of a Protection From Abuse Act order would, in essence, wipe out the legislatively created remedy and enforcement under said Act.

Id. at 561, 490 A.2d at 922, quoting Slip op. of trial ct. at 11. Although the Act grants the power on a trial court to impose for contempt a $1,000 fíne in addition to a jail term of up to six months, we found that these sanctions did not make the contempt violation such a serious offense as to require a jury trial. Id. at 556-60, 490 A.2d at 920-2. We noted that summary disposition is important to the administration of the Act, and to require a jury trial would frustrate the effectiveness of the Act. Id. at 562, 490 A.2d at 923.

Presently, we read the Act, as we did in Eichenlaub, in light of its purpose to prevent imminent harm to abused person(s). We find the appellant’s proposed requirements pleading of specificity without basis in either the text or the spirit of the Act. Such a requirement could potentially frustrate the expeditious nature of the Act.

We do not believe, of course, that the trial court has unlimited authority in determining whether past incidents of abuse should be admitted or excluded. There will be times when the alleged incidents of abuse are too remote or too insignificant to have much relevance to the court’s determination. We have oft declared that “questions concerning the admission or exclusion of evidence are within the sound discretion of the trial court, and may be reversed on appeal only when a clear abuse of discretion is apparent.” Soda v. Baird, 411 Pa.Super. 80, 86, 600 A.2d 1274, 1277 (1991); Lewis v. Pruitt, 337 Pa.Super. 419, 428, 487 A.2d 16, 20 (1985). We feel this is an appropriate appellate standard of review in the case sub judice. Under this standard, given the recent nature of the incidents and their probative relevance, we find no abuse of discretion occurred.

The appellant’s second argument is that the court erred in finding that the evidence was sufficient to establish that abuse occurred as defined in the Act. The appellant argues that the evidence indicates that there was no attempt to cause serious bodily injury or even bodily injury, and no such injury was, in fact, caused. He claims that his wife was not placed in fear of imminent serious bodily injury by physical menace or of being sexually abused. While admitting that he restrained the appellant on at least two occasions, at one point holding the wife’s arms for up to fifteen minutes, he does not believe that this conduct violates the Act. Finally, the appellant asks us to take into consideration the fact that the wife filed her Petition more than forty days after the date of the last incident.

We preliminarily address what standard of review we should use in looking at the lower court’s decision. As noted supra, the Protection From Abuse Act does not seek to determine criminal culpability. A Petitioner is not required to establish abuse occurred beyond a reasonable doubt, but only to establish it by a preponderance of the evidence. See 23 Pa.C.S.A. § 6107(a) (“the plaintiff must prove the allegation of abuse by a preponderance of the evidence”). We have declared that the standard for reviewing the sufficiency of the evidence in analogous circumstances is as follows:

In considering the sufficiency of the evidence to sustain the verdict, we view the evidence in the light most favorable to the verdict winner, granting that party the benefit of all reasonable inferences, and determine only whether the evidence introduced at trial was sufficient to sustain the verdict. Curran v. Stradley, Ronon, Stevens & Young, 361 Pa.Super. 17, 24, 521 A.2d 451, 454 (1987). See also Laniecki v. Polish Army Veterans Assoc., 331 Pa.Super. 413, 417, 480 A.2d 1101, 1103 (1984). Cooper v. Burns, 376 Pa.Super. 276, 280-81, 545 A.2d 935, 937 (1988), as quoted in Taylor v. Celotex Corp., 393 Pa.Super. 566, 573, 574 A.2d 1084, 1088 (1990).

Accordingly, we review presently whether the evidence in the light most favorable to the Petitioner and granting her the benefit of all reasonable inferences, was sufficient to sustain the trial court’s determination that abuse was shown by a preponderance of the evidence.

Having determined our standard of review, we analyze presently whether the evidence was sufficient. The Act sets forth in 23 Pa.C.S.A. § 6102 what constitutes “abuse”:

“Abuse.” The occurrence of one or more of the following acts between family or household members, sexual or intimate partners or persons who share biological parenthood:
(1) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury, rape, spousal sexual assault or involuntary deviate sexual intercourse with or without a deadly weapon.
(2) Placing by physical menace another in fear of imminent serious bodily injury.
(3) The infliction of false imprisonment pursuant to 18 Pa.C.S. § 2903 (relating to false imprisonment).
(4) Physically or sexually abusing minor children, including such terms as defined in Chapter 63 (relating to child protective services).

We believe, viewing the evidence in the light most favorable to the appellee, that abuse has been established, at a minimum, under subsections (2) and (3).

The evidence can reasonably be construed to prove that the appellee was placed by the appellant’s physical menace in fear of imminent serious bodily harm. During the August 2nd incident, the appellee testified that her husband waited behind the door for her to come home. He then attempted to grab her purse and her keys, and when the appellee fled to her car, the appellant came after her and dragged her out, after which he finally let her go. The appellee testified that he held his wife securely for ten-fifteen minutes during this incident. During the September 9th incident, the wife testified that the husband forcibly restrained her several times yet again while screaming at her. He picked her up on two occasions and threw her down twice. After throwing her down on the couch, he strangled her. When he threw her down on the kitchen floor, he threatened to have sex with her. The appellant’s physical contact was to the extent where the appellee was bruised on various places of her body after the prolonged incident. Viewed in the light most favorable to the appellee, the evidence establishes a violation of subsection (2). We believe that the statute views this conduct as abusive, as the appellant’s increasingly bellicose behavior could reasonably have her in fear of imminent serious bodily harm. It was a proper exercise of discretion for the court to enter an appropriate order to prevent future harm to the appellee.

Although a closer question, a violation of subsection (3) can be reasonably determined to exist. Subsection (3) adopts a criminal code definition for an abuse determination in the context of restraint. The subsection states abuse occurs when a defendant inflicts false imprisonment pursuant to 18 Pa. C.S.A. § 2903. Section 2903 in turn states “a person commits a misdemeanor of the second degree if he knowingly restrains another unlawfully so as to interfere substantially with his liberty.” 18 Pa.C.S.A. § 2903.

In the recent case Commonwealth v. Enders, 407 Pa.Super. 201, 595 A.2d 600 (1991), we had an opportunity to address a challenge to the sufficiency of the evidence in a case where defendants were convicted of false imprisonment. In Enders, the victim alleged that he had been forcibly taken by several acquaintances to an abandoned barn, was tied down over a pentagram, and an occult ritual was performed over him. During the ritual, a leather collar with nails facing inwards was placed around his neck. One of his acquaintances pressed on the collar, drawing blood, which he then placed to his lips. The victim was released after the ritual with a warning not to reveal the ceremony to the authorities. The victim did tell the authorities, and persons involved with this incident were subsequently found guilty of false imprisonment in a jury trial. On appeal, construing the evidence in the light most favorable to the verdict winner, the Commonwealth, we found almost without comment, that the evidence was sufficient to support a conviction of false imprisonment. Id. at 206, 595 A.2d at 603. Although we recognized that the convictions rested largely on the victim’s credibility, we noted that credibility is the sole province of the jury. Id.

Presently, the appellant has admitted to restraining the appellee during two of the incidents supra. During one incident, he admitted restraining her for a period of ten-fifteen minutes. The appellee claimed that during the last incident appellant continually screamed at her, and at points during the incident strangled her, threw her down twice and threatened her with sexual abuse. Viewing the evidence in the light most favorable to the appellee, as we must, we believe there was sufficient evidence for the court to conclude by a preponderance of the evidence that the appellant knowingly restrained the appellee so as to interfere substantially with her liberty.

The appellant’s final argument is that the court erred in directing as a remedy the exclusion of the husband from the jointly owned marital residence where less burdensome alternative remedies existed. He asserts that the remedies under the Act are multiple and varied and allow a Court to tailor its order to the circumstances of each case. See 23 Pa.C.S.A. § 6108. The appellant argues that the evidence clearly indicates that the alleged incidents of abuse were sporadic, and the spouse was not in any danger of immediate harm. Consequently, he claims that the court simply could have ordered him to stop abusing his wife, or alternatively, not to have any contact with her. He feels the court did not have to impose the most severe remedy possible: excluding the husband from the marital residence.

We find meritless appellant’s argument. We disagree with appellant’s contention that the inquiry involves determining whether the court committed an error of law. We believe the statute anticipates that a trial court possesses discretion in choosing between the remedies the Act affords. The statute states that any order or consent agreement sanctioned by the trial court may include several delineate remedies. 23 Pa. C.S.A. § 6108. The use of the word “may,” and the several remedies, some of them alternative remedies, which the Act provides, indicates that the legislature believed the choice of a remedy was within the discretion of the trial court. Accordingly, we will review the trial court’s determination as to an appropriate remedy in a Protection From Abuse Act case should be reviewed only for an abuse of discretion.

An “abuse of discretion” exists where “the lower court’s judgment is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will ... or without support in the record.” In re Baby Girl D, 512 Pa. 449, 453-4, 517 A.2d 925, 927 (1986); accord, Commonwealth v. Lane, 492 Pa. 544, 549, 424 A.2d 1325, 1328 (1981). We do not believe the trial court abused its discretion by allegedly failing to select the least burdensome remedy possible for the following two reasons.

First, we believe that the Act does not anticipate the typical remedy would be to structure an Order so the abusive spouse can remain in the marital residence with the abused person(s). The tenor of the Act is that removal of an abusive spouse from the marital residence is the preferred method for dealing with these situations. See 23 Pa.C.S.A. § 6108. We note that the Act not only provides the authority for a court to exclude a defendant from a particular residence, but allows the court to order more burdensome remedies. These more burdensome remedies include:

(4) Awarding temporary custody of or establishing temporary visitation rights with regard to minor children. A defendant shall not be granted custody or partial custody where it is alleged in the petition, and the court finds after a hearing under this chapter, that the defendant abused the minor children of the parties or where the defendant has been convicted of violating 18 Pa.C.S. § 2904 (relating to interference with custody of children) within two calendar years prior to the filing of the petition for protection order. If a plaintiff petitions for a temporary order under section 6107(b) (relating to hearings) and the defendant has partial, shared or full custody of the minor children of the parties by order of court or written agreement of the parties, the custody shall not be disturbed or changed unless the court finds that the defendant is likely to inflict abuse upon the children or to remove the children from the jurisdiction of the court prior to the hearing under section 6107(a). Nothing in this paragraph shall bar either party from filing a petition for custody under Chapter 53 (relating to custody) or under the Pennsylvania Rules of Civil Procedure. The court shall consider, and may impose on a custody award, conditions necessary to assure the safety of the plaintiff and minor children from abuse.
(5) After a hearing in accordance with section 6107(a), directing the defendant to pay financial support to those persons the defendant has a duty to support. The support order shall be temporary, and any beneficiary of the order must file a complaint for support under the provisions of Chapters 43 (relating to support matters generally) and 45 (relating to reciprocal enforcement of support orders) within two weeks of the date of the issuance of the protection order. If a complaint for support is not filed, that portion of the protection order requiring the defendant to pay support is void. When there is a subsequent ruling on a complaint for support, the portion of the protection order requiring the defendant to pay support expires.
(6) Prohibiting the defendant from having any contact with the plaintiff, including, but not limited to, restraining the defendant from entering the place of employment or business or school of the plaintiff and from harassing the plaintiff or plaintiffs relatives or minor children.
(7) Ordering the defendant to temporarily relinquish to the sheriff the defendant’s weapons which have been used or been threatened to be used in an incident of abuse against the plaintiff or the minor children. The court’s order shall provide for the return of the weapons to the defendant subject to any restrictions and conditions as the court shall deem appropriate to protect the plaintiff or minor children from further abuse through the use of weapons.
(8) Directing the defendant to pay the plaintiff for reasonable losses suffered as a result of the abuse, including, medical, dental, relocation and moving expenses; counseling; loss of earnings or support; and other out-of-pocket losses for injuries sustained. In addition to out-of-pocket losses, the court may direct the defendant to pay reasonable attorney fees.

23 Pa.C.S.A. § 6108(a)(4)-(8). Thus, we find meritless appellant’s contention that the court mandated the most severe remedy possible.

Second, our review of the evidence indicates that the remedy chosen was appropriate and that no abuse of discretion occurred. At the risk of repetition, we reiterate the following. Within a period of ninety days, as indicated supra, evidence existed from which the trial court could have found escalating incidents of abuse. These incidents included by the appellant’s own admission the physical restraint of the appellee for fairly substantial periods of time. Moreover, there was evidence in the record, viewing the evidence in the light most favorable to the appellee, that the appellant threw the appellant down several times and on the last occasion, threatened to have forced sex with her. The parties voluntarily agreed to separate because of the last incident’s particular severity. Notwithstanding their mutual understanding, the appellant broke back into the marital residence while the appellee was on a business trip. He subsequently refused to vacate the premises. Under the circumstances, the court’s decision to bar the appellant from the marital residence seems particularly sound.

We specifically reject the notion that the court abused its discretion by failing to more narrowly tailor an order which would allow the appellant to stay in the marital residence. The Act wisely contemplates a degree of judicial intervention as a form of risk control. Allowing both spouses to remain in the marital residence where abuse has occurred could potentially be a proscription for disaster. The purpose of the Act is to react to early signs of abuse and prevent more serious abuse from occurring. The court was clearly acting within its discretion in determining that exclusion from the marital residence was appropriate to safeguard against potentially more serious incidents of abuse. Nothing in the Act suggests that a lower court must risk taking the least burdensome remedy.

For the foregoing reasons, we affirm the order below.

Order affirmed.

WIEAND, J., files a concurring opinion.

WIEAND, Judge

concurring:

Although I concur in the result, I write separately because I am in disagreement with at least two aspects of the majority’s analysis. First, I believe it is erroneous to hold, as the majority does, that a petitioner for relief under the Protection From Abuse Act, 23 Pa.C.S. §§ 6101 et seq., is not required to plead with reasonable specificity those instances of abuse on which he or she relies to establish entitlement to relief under the Act. Secondly, I disagree with the majority’s suggestion that the preferred relief under the Act is removal of a spouse from the marital home.

“The Protection From Abuse Act is a vanguard measure dealing with the problems of wife and child abuse. It is designed to protect against abuse ... between family or household members who reside together____” Cipolla v. Cipolla, 264 Pa.Super. 53, 55 n. 1, 398 A.2d 1053, 1054 n. 1 (1979). See also: Heard v. Heard, 418 Pa.Super. 250, 257, 614 A.2d 255, 259 (1992). To commence proceedings under the Act, a petition “alleging abuse by the defendant” must be filed with the court. 23 Pa.C.S. § 6106(a). See also: Heard v. Heard, supra at 257, 614 A.2d at 259. Within ten days of the filing of a petition, a hearing is to be held at which the petitioner “must prove the allegation of abuse by a preponderance of the evidence.” 23 Pa.C.S. § 6107(a). See also: Heard v. Heard, supra at 256, 614 A.2d at 259.

I agree with appellant-husband that a defendant in a protection from abuse proceeding should not be required to defend against matters of which he has had no notice. Notice is fundamental to our system of jurisprudence, and the need therefor is recognized in both civil and criminal areas of the law. See: Commonwealth v. Kelly, 487 Pa. 174, 178, 409 A.2d 21, 23 (1979); Freer v. Parker, 411 Pa. 346, 347, 192 A.2d 348, 349 (1963); Ingrassia Constr. Co. v. Walsh, 337 Pa.Super. 58, 64, 486 A.2d 478, 481 (1984); Commonwealth v. Speller, 311 Pa.Super. 569, 579, 458 A.2d 198, 203 (1983). Our abhorrence of a variance between allegata and probata rests upon principles of fairness; we do not countenance undue surprise by allowing evidence of facts not pleaded. See: Commonwealth v. Kelly, supra, 487 Pa. at 178, 409 A.2d at 23; Freer v. Parker, supra, 411 Pa. at 347, 192 A.2d at 349.

This principle is equally important in matters covered by the Protection From Abuse Act. A defendant in such proceedings can be unfairly surprised by evidence offered at an abuse hearing where the subject thereof has not been alleged in the petition. Trial by surprise is unfair to the respondent who has been surprised and also to the court which may be deprived of significant evidence in response. In such cases, the ability of the court to reach a just result is unnecessarily impaired. Therefore, I would hold that a protection from abuse petition must allege, with reasonable specificity, the particular incidents of abuse upon which the petitioner relies for relief.

This requirement will not hamper the purposes of the Protection From Abuse Act. It will not place an impractical burden on the petitioner. What is difficult or burdensome, one may ask, about informing the defendant of the facts upon which the petitioner relies in proving entitlement to relief? This is the same requirement which we place on all plaintiffs in civil matters and the Commonwealth in criminal matters.

I also am unable to comprehend how the expeditious grant of relief under the Act will be diminished by such a requirement. The Act itself provides for the issuance of immediate, temporary orders for the protection of a petitioner. See: 23 Pa.C.S. § 6107(b). Requiring specificity in the petition will not abrogate or compromise that provision. In my best judgment, therefore, there simply is no good reason for not requiring of a petitioner a pleading adequate to inform the respondent of the allegations he or she will face at a hearing before such respondent can be compelled to move out of his or her own home. See: 23 Pa.C.S. § 6108(a)(2) & (3).

Instantly, the petition alleged an abusive incident on September 9, 1992. Therefore, only evidence impinging on the alleged September 9th incident should have been presented at hearing. Evidence of prior incidents should not have been allowed. In this case, however, the error was harmless. The prior incidents, in my judgment, were insignificant and involved nothing more than shouting matches not involving physical abuse. Although there clearly were prior arguments, the incidents did not involve physical abuse sufficient to require removal of a spouse from the common residence. Because the evidence was heard by a court without a jury, the additional evidence was not such as to destroy or impair the fact-finder’s ability to hear and decide the case impartially regarding the incident alleged in the petition.

“It is up to the trial court as fact finder, to judge the credibility of witnesses and to weigh their testimony. On appeal, it is not the duty of [the appellate] court to find facts, but to determine if there is evidence in the record to support the trial court’s findings. Findings of fact made by the trial court and supported in the record may not be overturned absent an abuse of discretion.” Heard v. Heard, supra, 418 Pa.Super. at 258-259, 614 A.2d at 260 (citations omitted). Here, the trial court found that appellee had been physically abused by appellant on September 9, 1992, and appellee’s evidence supports the court’s finding that the dispute between the parties became physical.

If I had been the hearing judge, I may not have found it necessary to evict appellant from his own home in order to protect appellee from future abuse. Appellant does not appear from the record to be a violent person, and any physical abuse inflicted upon his spouse appears to have occurred as a consequence of marital discord for which appellee is not completely blameless. I disagree vigorously with the majority’s suggestion that the preferred relief under the statute is to require a spouse to vacate his or her own home. The statute expresses no such preference, and for the courts to do so is to exceed the purpose of the statute to prevent physical abuse. Certainly not every incident of marital discord recommends that a court determine who shall go and who shall stay in the marital home.

I agree, nevertheless, that the trial court’s order in the instant case must be affirmed. Because the Act empowers trial courts to grant broad relief to protect against anticipated abuse, much must be left to the discretion of the trial court. It follows that an appellate court may not substitute its judgment for that of the trial court and will not disturb the trial court’s order unless there has been an abuse of discretion. Here, even though I may have granted different relief, I cannot say that the trial court’s order was an abuse of discretion. Therefore, I concur in the decision to affirm the court’s order.

      . It is clear that the six-month period governed by the October 29, 1992, order has passed. At oral argument, we raised from the bench the issue of mootness. The appellant argued that this issue does not exist because the Final Protection From Abuse Order could impact on the way a trial court views the equities in a divorce or child custody proceeding. We are not totally persuaded by this argument, and do not rely on it presently. We prefer, instead, to rely on the much sounder basis that this case falls into the well-recognized exception to the mootness doctrine of a case which has important public policy considerations and yet may escape review. Sagan in Behalf of Registered Voters of Com. v. Pennsylvania Public Television Network, 518 Pa. 564, 566 n. 2, 544 A.2d 1309, 1310 n. 2 (1988); In re Estate of Dorone, 349 Pa.Super. 59, 65, 502 A.2d 1271, 1274 (1985), affd 517 Pa. 3, 534 A.2d 452. Protection From Abuse Act Orders are usually temporary, and it is seldom that we have the opportunity to review one before it expires. Moreover, this case deals with the important questions of (1) how narrowly must a trial court construe a Protection From Abuse Petition and (2) what quantum of evidence is necessary to sustain a case under this Act.
      We note that in Rosenburg v. Rosenburg, 350 Pa.Super. 268, 504 A.2d 350 (1986), this court stated that the Act was designed to provide immediate protection against physical abuse and not to provide a procedure for determining other issues such as custody of the children. In light of that decision, we would hope that trial courts will be wary of prejudging a custody or divorce case based on a determination which has at its roots the elimination of the possibility that physical violence towards a spouse might occur.

      . We note that the Petition filed by the appellee was completed pro se. A requirement that Abuse Petitions delineate for the accused abuser all the incidents of abuse would place an impracticable burden on the Petitioner.

      . We note that there may be occasion when a person defending a Protection From Abuse Action is unfairly surprised by allegations not raised in an Abuse Petition. If such is the case, the trial court could consider granting a short continuance and granting in an ex parte proceeding a temporary order granting relief. See 23 Pa.C.S.A. § 6107.

      . An exception may be required where, because of the fluidity of the circumstances, relevant events have occurred after the filing of the petition and before the hearing. Even in such cases, however, fairness to all parties can best be achieved by liberally allowing amendments to the petition. In the instant case, the additional incidents had occurred prior to the filing of the petition.


author: PER CURIAM:

text:
    629 A.2d 988
    In re MARY KATHRYN T. and Branden T., minors. Appeal of THOMAS T. and Barbara T., husband and wife, and Natural Parents. In re MARY KATHRYN T. and Branden T., minors. Appeal of THOMAS T. and Barbara T., Natural Parents.
    Superior Court of Pennsylvania.
    Argued April 14, 1993.
    Filed Aug. 9, 1993.

      Mary S. Ramsden, Pittsburgh, for appellants.
    Mark P. Cancilla, Pittsburgh, for appellees.
    Cyril C. Vidra, Springdale, for Children and Youth Services, participating party.
    Before WIEAND, POPOVICH and HESTER, JJ.
   PER CURIAM:

This appeal is from an order which continued custody of two dependent siblings in Allegheny County Children and Youth Services (“CYS”) with continued placement at Bradley Center Foster Home, and terminated all visitation between the children and their natural parents. Appellants-parents contend that the court erred in terminating visits, in allowing the children to decide if and when they will visit with their parents, and in allowing the children to remain in their foster home placement. We agree with the parents in all respects, reverse, and remand.

A review of the record in this case compels but one conclusion, which is so clear that we are puzzled how either the trial court or CYS can maintain a contrary position. We will summarize the extensive expert testimony which has been offered through reports and at various hearings. This case evokes and incites great emotion, but our decision is soundly based in the law, which is very clear. Not only are appellants entitled to prove to their children that they have ameliorated conditions in their home life, but they have acknowledged their past wrongdoing and are ready and able to demonstrate that to their children. Moreover, the children’s continued placement in Myrna Hagan’s foster home is detrimental to any reunification of this family. The trial court was apprised of this fact long ago, at least as early as March, 1990, but unfortunately has refused to act upon it. It is regrettable for the family because it has prevented reunification, and for the children, in particular, for their attachment to their foster mother has grown only stronger, thus making the inevitable separation that much more difficult. However, we have no doubt that it is the result demanded here, the result required by the law.

Appellants-parents, Thomas and Barbara T., have been married for over thirty-five years. Their marriage has produced eleven children who, in 1989, ranged in age from thirty-one to six years old. Father holds an M.B.A. and works as a computer consultant. Mother is employed as a secretary. On April 16,1989, Karyl T., then age sixteen, ran away from home and refused to return when apprehended by the police. Karyl alleged that she feared her father because he routinely used excessive physical discipline on her and her siblings. Three younger children lived at home at the time: Pierce, then age eleven, Mary Katherine (Mary Kay), then age ten, and Branden, then age six. Barbara, who was born between Pierce and Karyl, was residing with an older sibling for the summer until she returned to college in the fall.

Karyl was placed in shelter care pending a hearing. On May 3, 1989, a CYS intake worker interviewed Pierce, Mary Kay, and Branden in their home. All three children expressed fear of their father and requested that they be removed from their home. The children were placed in shelter care pending a hearing. Father admitted to a CYS caseworker that he had used physical discipline in the form of paddling and slapping across the face. A caseworker described Father’s explanation regarding discipline as follows: “[H]e felt that he needed to ‘terrorize’ his children into ‘listening’ to him____ [He] stated that he felt that pain had to be associated with a certain level of misbehavior so that the children would develop an aversion to misbehavior.” Reproduced Record at 6a.

Following the removal of the children from the home, they were evaluated by Dr. Susan Nathan of the Family Intervention Center. Pierce, Branden, and Mary Kay complained of being struck by their father with a wooden two by four. Dr. Nathan concluded that the children were victims of chronic emotional and physical abuse, and their home environment had not fostered various age-appropriate developmental goals, such as establishing peer relationships, acquiring positive self-esteem, .and expressing and controlling feelings of aggression. Mary Kay and Branden, adjudicated dependent on May 26, 1989, were placed in foster care with Hagan, where they remain today. Pierce, who also was adjudicated dependent, returned home in 1989, where he has remained.

From May until November, 1989, the family received counseling at InterCare with Dr. Donald Hazlett. The children also received individual therapy with Cathy Petchel. Treatment with Dr. Hazlett terminated when Father was discovered tape recording a therapy session which is against Inter-Care’s policy. On November 6, 1989, Dr. Kenneth Stanko, a psychiatrist, began treating the family. At a May, 1990 hearing, Dr. Stanko revealed that Father lost his job earlier that year, forcing the family to terminate therapy with Dr. Stanko since Father had assumed the responsibility of paying for the therapy. However, Dr. Stanko continued to monitor mother’s use of antidepressant medication.

In August, 1990, the family began treatment with psychologist, Dr. Anna Marie Breaux. Following a review hearing in November, 1990, family therapy continued with Dr. Breaux, while Mary Kay and Branden resumed individual therapy with Cathy Petchel. By August, 1991, CYS changed its service goal from reunification to long-term foster care. During this time, the children attended supervised visits twice per month with their parents and unsupervised visits with various older siblings. In February, 1992, CYS suspended Father’s visits with his children; Mother continued to meet them twice per month. Another hearing was held on March 6,1992, following which parental visitation was reestablished for Father and reduced for Mother to once per month, with increased communication via letters and telephone calls.

The final hearing was held August 19, 1992. At this hearing, Dr. Neil Rosenblum, who had met each of the children alone merely once and each in an interactional session with Hagan, and who never met appellants, testified on behalf of CYS. Dr. Rosenblum recommended that all visits with appellants cease and individual therapy of the children continue. Following this hearing, the court entered the order from which this appeal lies.

We note that the issues regarding reunification of this family, the denial of visitation with the parents, and the continued placement of the children in the home of Myma Hagan are intertwined. None can be viewed in isolation because the issue concerning the children’s placement impacts significantly on the other issues in this case. There is significant and relevant testimony pertaining to these issues at each of the hearings held in this case.

M.C. Henderson, the caseworker assigned to this case since 1989, testified at the May 4, 1990 hearing. During cross-examination, Ms. Henderson admitted that appellants had maintained consistent contact with her and consistently attempted to work toward reunification. N.T., 5/4/90, at 10. She admitted to an antagonistic relationship between Father and foster mother. Ms. Henderson identified inappropriate comments made by foster mother and stated that she had instructed foster mother to refrain from making similar comments in front of the children. Ms. Henderson acknowledged that Pierce had returned home nearly a year before and had not experienced “any excessive physical discipline since his return home.” Id. at 15. However, Ms. Henderson retained concern for the well-being of the children if they were returned to their home because she believed appellants engaged in psychological and emotional manipulation of Mary Kay and Branden. In support of her belief, Ms. Henderson offered the following example. At Christmas, 1989, appellants and their older children purchased presents for Mary Kay and Branden. Instead of giving the children all of the presents at one time, Mother brought a few presents each time she visited. This shallow and picayune example offered by CYS certainly is not the type of behavior which should have impeded reunification of appellants and their children.

Dr. Robert Saul also testified at the May 4, 1990 hearing. He met only with the children and foster mother. Dr. Saul stated that the children were anxious about the prospect of returning home because they were afraid that their parents had not changed and would engage in physical discipline. Dr. Saul’s testimony concerning Hagan was revealing. He stated that Hagan “was very adamant in wanting the children to remain with her in the home.” Id. at 20. Moreover, the foster mother had strong opinions regarding the return of the children to their parents and questioned whether the parents indeed had changed. Dr. Saul could not recommend whether the children should be returned home because he had never met the parents and never had seen the children with their parents. However, he noted that he had concerns about the foster mother’s strong views concerning the return of the children to their parents and feared “what she might communicate to the children.” Id. at 22. Dr. Saul also stated that the foster mother’s views about the parents “very possibly” would have a detrimental effect on the goal of reunifying the family, and, given that the children had become attached to Hagan, they would be influenced by her even more.

Dr. Kenneth Stanko, a physician who is board certified in adult, child, and adolescent psychiatry, testified at length. At the time of the hearing, Dr. Stanko had seen Branden and Mary Kay for seven sessions, Pierce for seven sessions, and appellants approximately thirty times. The sessions began in November, 1989. Regarding the progress made by appellants, Dr. Stanko stated:

The one thing I have noted is that Mr. and Mrs. T. have gained an appreciation of both the way that they used to parent their children and how this was not helpful for the children or conducive to their development and good health.
And they have also — Mr. T. has also gained an appreciation of his personality style, and how that has interfered with him accomplishing his own goals.

Id. at 41. Dr. Stanko went on to admit that Father’s methods of discipline actually were detrimental to the children’s upbringing. Dr. Stanko was consistent and emphatic in his belief that appellants had worked very hard at changing their behavior and ridding themselves of inappropriate ways of parenting. He stated that they read many books, both those given by him and those they obtained themselves. They underlined relevant portions and sought him out with questions. Most importantly, Dr. Stanko revealed that appellants put this information to use in their parenting of Pierce, who had moved back home without incident.

Dr. Stanko was equally adamant that Hagan, while forming a positive bond with the children, is incapable of fostering a positive relationship between the children and their parents. Dr. Stanko described a meeting he held with appellants and foster mother. Despite the fact that Father believed Hagan harbored negative feelings toward him, he

still was able to say to her that he thanked her for all that she did do for the children, he appreciated her efforts, of all the positive things that she did for the children, and he had hoped that these sessions would be useful, and he wanted her to be more open with him in terms of cooperating and making this goal possible.

Id. at 43. Dr. Stanko testified that when he met with Hagan alone, she told him that she did not believe Father had changed at all. Dr. Stanko emphasized that Hagan’s attitude was a serious problem to the stated goal of reunification. At the May 4, 1990 hearing, Dr. Stanko testified with a reasonable degree of medical certainty that placement of the children with Hagan was not conducive to reunification of the family. Id. at 47.

The trial court proceeded to preclude testimony by two of the older siblings on this issue, stating that their testimony was irrelevant and subjective. Id. at 48-49. However, it is clear that the court was keenly aware of the foster mother’s interference with the stated goal of reunification. For example, the court asked the foster home supervisor, “[H]ow are we getting the foster mother under control?”, and “What are we going to do about her?” Id. at 69. The court went on to state, “The goal is reunification. If there is any interference in that goal, and it’s measurable and empirical and contemptuous, then the kids are going to be removed....” Id. at 70. Unfortunately, the trial court lost sight of the goal.

As noted above, due to financial limitations when Father became unemployed, appellants were forced to discontinue therapy with Dr. Stanko and began therapy with Dr. Breaux. Dr. Breaux interviewed the children individually, the parents individually, the foster mother individually, and took interactional interviews of all sub-groups: children and parents, children and foster mother, and two children together. At the time of the November 2, 1990 hearing, Dr. Breaux had spent twenty-one and one-quarter hours in direct evaluation.

Dr. Breaux testified at the November 2, 1990 hearing that appellants exhibited “a great degree of motivation to get the family reunited.” N.T., 11/2/90, at 13. Moreover, through having Pierce in the home, they were able to prove by their actions what they proclaimed in therapy. Id. at 19. Dr. Breaux also testified that the children verbally state one thing but behaviorally indicate another, most significantly concerning their desire to remain in the foster home or return to their parents. For example, although the children professed a fear of Father, their interaction with him did not indicate fear. Dr. Breaux testified, “They have been very comfortable with verbal interactions and comfortable with physical touch. There is no real fear at all.” Id. at 18.

The crux of the problem, according to the psychologist, was the children’s belief that they had to choose between their foster mother, Hagan, and their parents. Dr. Breaux stated that Hagan is competitive with appellants rather than being neutral to the relationship with their children. She stated that foster mother redirected the children’s concerns to parallel her own. For example, Mary Kay told Dr. Breaux that she wanted to skip the next therapy session (when her parents would be present) because she wanted to accompany Hagan and her son on a trip to the zoo. At the end of the session, when Mary Kay was leaving, Hagan prompted the child with, “Didn’t you have concerns about contact with your dad?” Id. at 19. At that point, Mary Kay stated that fear of her father was the real reason she wanted to skip the next session.

In her report, Dr. Breaux noted the following with regard to Myrna Hagan:

Overall, Myrna appears to be a loving person who has provided the children with structure and nurturance. However, her destain [sic] for their biological parents is likely to exacerbate the reunification process. This open dislike of the children’s parents occurs despite previous attempts to have Myrna take a more neutral attitude.
The placement of Mary Kay and Branden with Ms. Hagan has had a mixed effect.... [S]he has failed to facilitate the goal of family reunification..... Despite repeated attempts by case workers to alter this attitude, it still remains ____
In his case, however, I have concerns that the foster mother would become increasingly competitive, leading to more distress for the children.
I strongly believe that the children are being done a disservice by continued placement with Myrna Hagan.

Reproduced Record (R.R.) at 60a-70a. Dr. Breaux testified that there is no likelihood of reunifying this family as long as the children remain in the Hagan foster home. N.T., 11/2/90, at 20. Thus, she recommended either that the children return to their parents’ home immediately or move to a different foster home closer to their family and friends.

Despite acknowledging the competitiveness and manipulation of foster mother and that “competent expert testimony” established that the children and parents should be reunited, the trial court refused to follow Dr. Breaux’s recommendation. Id. at 42, 46. Instead, the trial court ordered that the children remain with Hagan, receive individual therapy, and continue visitation with appellants.

By report dated January 29, 1991, Dr. Breaux updated the court concerning therapy. In the preceding three months, Dr. Breaux engaged in an additional twenty-two hours of direct contact with the family. The children’s behavior regressed, and Dr. Breaux opined that it may be a response to the fact that the children observed her testimony at the November, 1990 hearing. Dr. Breaux also advised the court that appellants had been given limited opportunity to demonstrate their improved parenting style, and that the conflict between foster mother and appellants continued to complicate the goal of reunification. Dr. Breaux opined that “the foster mother has explicitly and implicitly taken actions leading to the children’s alienation towards their parents.” R.R. at 107a. In her summary and recommendations, Dr. Breaux concluded:

Therapy has been a struggle between being responsive to [the children’s] concerns and not reinforcing their inappropriate behavior. This therapist feels that the source of their inappropriate behavior is multifactorial, including:
1. Distress over unsupervised visits with their parents, due to the lack of a firm parent-child bond.
2. Manipulativeness, for which they believe they will be rewarded.
3. A disproportionate hatred for neutral actions of the parents which are perceived as negative. This alienation has been perpetuated by direct and indirect statements from the foster mother.

Id.

A hearing was held on March 6, 1992. The hearing was held, rather than review by addendum, because CYS recommended terminating all visitation with appellants, and the psychologists, Dr. Breaux and Cathy Petchel, did not concur. Id. at 16. M.C. Henderson, the CYS caseworker, testified that visits with the family were stopped temporarily due to the children’s acting-out behaviors. While Mary Kay’s behavior escalated, she did not pose a safety risk. Branden, however, was the focus of the hearing. Appellants’ counsel asked Ms. Henderson if she believed Father would cooperate in leaving the visitation session if asked to do so. The witness replied, “I believe that he would. I haven’t found him to be unwilling to adhere to suggestions that I have made.” N.T., 3/6/92, at 8-9. Ms. Henderson stated that appellants had been cooperative; the problem really was in the children’s perceptions of appellants’ actions. Dr. Breaux specifically was asked if she favored suspending visitation for Branden. The doctor replied, “No. I think the problem with that is, by the process the children have learned is that if you escalate your behavior enough, you can get things to happen, and I think that would be the likely outcome of that.” Id. at 19-20. The trial court then ordered visitation a minimum of once per month plus regular telephone contact.

The final hearing took place on August 19, 1992. Dr. Breaux recommended that family visits occur a minimum of once per week with additional contact by telephone and letters. CYS also presented testimony of Dr. Neil Rosenblum. .Dr. Rosenblum had met once with each child individually and once in an interactional session with the children and foster mother. Based upon these two sessions, April 9, and April 14, 1992, Dr. Rosenblum testified that all visitation between the children and appellants be terminated because the children are stressed by such contact. He stated that Branden, especially, is destroying property at school and engaging in abusive behavior there, significantly at times when he meets his parents.

Dr. Rosenblum admitted that his recommendation could change if he met with appellants, noting, “I’m admitting from the very beginning that I’ve only heard two sides of the story, the children’s and the foster mother’s.” N.T., 8/19/92, at 34. Moreover, he acknowledged, in response to questioning concerning the fact that he had limited information regarding this case, “The more information you have, the better grounds that would be your conclusions as to what’s causing the behavior.” Id. at 37. Dr. Rosenblum reviewed Dr. Breaux’s report but called her only once to attempt discussion. Significantly, he never contacted Cathy Petchel, the children’s therapist.

Dr. Rosenblum stated that Mary Kay was very anxious to please Hagan in addition to others. Id. at 44. Further, he testified that the children’s relationship with their parents suffered because the parents had not acknowledged any wrongdoing. When apprised by appellants’ counsel that Father indeed had admitted his wrongdoing to his children, Dr. Rosenblum replied, “That is the type of information that, if I had been able to have conduct [sic] an interactional, that’s exactly the type of information that I would have been able to obtain.” Id. at 46. In fact, a review of Dr. Rosenblum’s testimony consistently reveals an incomplete and inaccurate basis for his recommendations regarding this family.

Based only on this testimony, the trial court ordered the termination of all visits between the children and parents. The order of August 19, 1992, states:

Children remain at Bradley Center Foster Home. CYS to make immediate referral to WPIC for individual therapy for the children, family therapy for the parents and children, and for an Intensive Case Manager to coordinate the treatment. Visits to resume at any time upon requests of the children and/or a time the Court deems appropriate pursuant to the law.

The propriety of the court’s decision that Mary Kay and Branden are dependent children first declared in 1989 never has been challenged. Parents, especially Father, who was the active disciplinarian, acknowledged from the beginning that the family needed help and that his methods of discipline were detrimental to his children. It is clear that appellants have worked diligently and consistently to solve their problems, and it appears they have been successful. Indeed, there is nothing in the record that allows for any other conclusion. All of the testimony establishes that the only reason the parents and children remain apart is because the children profess continued fear of returning to their parents’ home. The wedge that has reinforced the continued separation is Myrna Hagan.

This is not a case where the parents are unwilling or unable to rectify the conditions which led to the children’s removal by CYS. Our docket is full of such cases; time and again we address the plentiful, pitiful'situations. There is not an iota of testimony herein that appellants have failed to correct their inappropriate and detrimental parenting style. Moreover, they have had the opportunity to prove it by having Pierce in the home.'

. The expert testimony in this case is significant, both in quantity and quality. For over three years, every psychologist or psychiatrist who treated this family said the same thing: the parents acknowledged their wrongdoing, have worked very hard to rectify it, and have proved themselves in their care of Pierce, but they were prevented from reunification with Mary Kay and Branden due solely to the efforts of the foster mother and her influence over them. Nearly every six months, the trial court was apprised of these facts by the ever-changing faces before it, and the court continued to ignore it. The effects of Hagan easily can be measured. One need only assess the escalating misbehavior of the children as they continued to be separated from their family. The longer Hagan influenced these children, the fewer the visits between the children and their parents, and the more the children acted out.

While ignoring all of this testimony which resulted from hours and hours of therapy over a period of years, the trial court relied upon the testimony of Dr. Rosenblum who saw the children twice, once with the foster mother and never with appellants. He recommended that all visits with the parents cease. The trial court then, based only on this admittedly incomplete information, incredulously terminated all visits with the parents. The law does not support such a result.

If a child is removed from his parents upon a clear showing of necessity, the parents have an affirmative duty to work toward reunification. In re Baby Boy P., 333 Pa.Super. 462, 482 A.2d 660 (1984), citing In re Interest of C.M.E., 301 Pa.Super. 579, 586, 448 A.2d 59, 63 (1982). Furthermore, one of the primary purposes of the Juvenile Act, 42 Pa.C.S. §§ 6301 et seq., is to preserve the unity of the family whenever possible. In re Interest of M.B., 388 Pa.Super. 381, 565 A.2d 804 (1989); 42 Pa.C.S. § 6302.

It is clear that natural parents, even when they have lost custody of their children, should be awarded visitation “except in fairly extreme circumstances.” In re Long, 313 Pa.Super. 47, 51, 459 A.2d 403, 405 (1983). We have described the gravity of the loss threatened when a child is declared dependent and removed from the natural parents’ home:

[H]ere the state has not merely assumed legal custody of Cheryl Ann but has further attenuated familial bonds by preventing parental visitation. Such a radical disruption of the familial relationship not only imposes upon Appellants a prolonged, indefinite loss of a particularly important private interest but also may well precipitate Appellants’ permanent loss of parental rights through the formal dissolution of the family.

In Interest of Rhine, 310 Pa.Super. 275, 282-83, 456 A.2d 608, 612 (1983) (other footnotes omitted). “Unless the state demonstrates with clear and convincing evidence that even supervised visitation would severely endanger the child, the court must deny the complete foreclosure of parental visitation as being contrary to the Act’s goal of family preservation.” Id., 310 Pa.Super. at 286, 456 A.2d at 614. “Visitation ... has been limited or denied only where a parent has been shown to suffer from severe mental or moral deficiencies that constituted a grave threat to the child!” In re Long, supra, 313 Pa.Super. at 51-52, 459 A.2d at 405. Further, a child’s desire not to visit with a parent is not sufficient reason to deny visitation. Nancy E.M. v. Kenneth D.M., 316 Pa.Super. 351, 462 A.2d 1386 (1983).

In re Interest of Rhine, supra, presented a similar situation to the instant case. Cheryl Ann Rhine was declared a dependant child. Based upon the child’s behavior following visits with her parents, the parents’ final visit with her occurred on January 24, 1980. The trial court did not issue an explicit order denying visitation until January 21, 1981. We held in Rhine, “that, consistent with the [Juvenile] Act’s ‘clear necessity’ custody test, parents whose visitation is opposed by the state constitute a grave threat to their child only where there are no practicable visitation options that permit visitation and protect the child.” Id. 310 Pa.Super. at 285-86, 456 A.2d at 614. The Rhine Court went on to analyze the testimony of the five hearings in the case and determined that the aggregate evidence “did not rise to the level of clear and convincing, competent evidence of a grave threat to Cheryl Ann.” Id., 310 Pa.Super. at 298, 456 A.2d at 620 (emphasis in original) (footnote omitted).

We already have analyzed the testimony from the hearings in the instant case. The only evidence that supports the conclusion that visitation with appellants poses a grave threat to Mary Kay and Branden is the testimony of- Dr. Rosenblum at the August 19, 1992 hearing, and it is not competent evidence upon which such a determination can be based. Dr. Rosenblum met twice with the children, once in conjunction with the foster mother. This is in contrast to the hours and hours of therapy over the course of years with Dr. Stanko and Dr. Breaux. Compare In re E.F.V., 315 Pa.Super. 246, 461 A.2d 1263 (1983) (superior court affirmed termination of visitation with natural parents where child had been brutally beaten in first seven weeks of her life, foster parents had thoroughly cooperated with reunification efforts, and all of the conditions which led to the abuse of the child continued to exist).

Accordingly, the August 19, 1992, order terminating visitation with appellants is reversed. We remand to the Court of Common Pleas of Allegheny County to hold an expedited hearing to determine whether the children may be returned forthwith to their parents’ home. If they may not be placed in their parents’ home forthwith, placement shall be made in a foster home in close proximity to appellants, preferably in the same school district. Visitation with parents is to be reestablished in accordance with a plan to reunify appellants with their children with utmost dispatch. Jurisdiction is relinquished.

      . This is Myrna Hagan’s foster home which initially was supervised by Alternative Program Associates (APA). Since 1991, it has been supervised by Bradley Center.

      . The record does not reveal what happened to Karyl. The instant case involves only Mary Kay and Branden.

      . Cathy Petchel testified that Father had been instructed not to tape record therapy sessions in keeping with InterCare’s policy. She advised that had Father identified his hearing deficit as the basis for doing so, "we certainly would have been flexible in terms of accommodating him.” Notes of Testimony ("N.T.”), 5/4/90, at 29-30.

      . Appellants also have paid child support to Allegheny County since their children have been in foster care, even when Father was laid off from his job and collecting unemployment. Father paid $247 per month, and Mother paid $262 per month. N.T., 11/2/90, at 58.

      . Appellees have objected to the inclusion and exclusion of items in the reproduced record without identifying them specifically. They generally assert that portions of transcripts were omitted, in addition to "numerous pieces of correspondence and material which was never presented to the lower court, let alone entered into evidence.” Brief of Child Advocate at 10. While the October, 1990 report of Dr. Breaux was not specifically entered into evidence, Dr. Breaux clearly testified from her report and in fact, was directed by the trial court to summarize it. See N.T., 11/2/90, at 6. Moreover, the child advocate and CYS cross-examined Dr. Breaux on the report. In fact, the court took a recess specifically to allow the child advocate to review the report. It is clear that all parties had the report, including the trial court, Dr. Breaux was subjected to lengthy cross-examination, the report was utilized for the basis of the doctor’s testimony, and the trial court considered it.

      . Appellants reside in Bethel Park, while the foster home is located in Squirrel Hill. Dr. Breaux testified that moving the children to a foster home within their home school district would allow for an easier transition when the children are placed with their parents.

       Augmenting the likelihood of a permanent severing of the parent-child relationship is the tendency of the young child to form attachments with those in the child’s life "whose presence has been the most continuous and stable,” i.e., the foster family, and the reluctance of the court to disrupt such attachments. In re Tremayne Quame Idress R., 286 Pa.Super. 480, 495, 429 A.2d 40, 48 (1981).

       Section 2-31-72 of the new regulations governing Foster Family Care Service for Children states that the "agency with custody [of the child] shall request the court to terminate parental rights when a determination has been made that it will be impossible for the child to return home within a reasonable period of time.”