author: HESTER, Judge:

text:
    570 A.2d 88
    John M. WAKSMUNSKI and Agnes M. Waksmunski, husband and wife v. Edward A. DELGINIS and Agnes Delginis, husband and wife, Appellants. John M. WAKSMUNSKI and Agnes M. Waksmunski, husband and wife, Appellants, v. Edward A. DELGINIS and Agnes Delginis, husband and wife.
    Superior Court of Pennsylvania.
    Argued Oct. 30, 1989.
    Filed Feb. 5, 1990.

      Raymond J. Wendekier, Johnstown, for Delginis, appellants, in No. 360 and appellees, in No. 460.
    William G. Barbin, Johnstown, for Waksmunski, appellants, in No. 460 and appellees, in No. 360.
    Before BROSKY, DEL SOLE and HESTER, JJ.
   HESTER, Judge:

John and Agnes Waksmunski instituted this equity action on November 6, 1984, by petition for injunction against Edward and Agnes Dilginis. The equity court issued an injunction against respondents to cease blocking an easement over the respondents’ property which petitioners used to access their property. The equity court, however, denied petitioners’ request to declare the easement a public road pursuant to 53 P.S. § 66105 thereby widening the easement from fourteen feet to thirty-three feet. We affirm.

The Waksmunskis filed this action against the Dilginises by petition for injunction, in which they alleged the following. Petitioners own property directly across an unnamed lane or roadway from property owned by respondents in Portage Township, Cambria County. Both properties are located in an area known as Dutch settlement, where five other families also reside. The roadway is used as the sole-access road by all property owners in the settlement. Construction of a different access road would be prohibitively expensive. Furthermore, petitioners have a fourteen-foot easement in the roadway as established in their chain of title, which originates from a grantor common to the grantor of respondents. In September, 1984, respondents partially obstructed the lane by placing wooden posts and steel reinforcing bars along the side of the lane, which has significantly narrowed the size of the lane rendering motor vehicle access dangerous.

Petitioners also alleged that the roadway has been in continuous use as a public right-of-way in excess of twenty-one years and that during that time, the lane was continually maintained and improved by the Township of Portage.

Petitioners requested an injunction preventing further obstruction of the roadway. They also requested that the roadway be widened to thirty-three feet pursuant to 53 P.S. § 66105.

In their response to the petition, respondents denied both that all the families in the settlement used the roadway and that the roadway was the sole access to the settlement. Further, they alleged that the steel posts that they admittedly placed on the easement were actually located on their property and outside the easement as described in the chain of title to the relevant properties. Respondents also denied that the road had been maintained and used by the public in excess of twenty-one years.

The matter was heard by the equity court at hearings held on July 28, 1987, and January 26, 1988. The first witness was Charles W. Sasgiver who has been the Portage Township road foreman for twenty years and has worked on the roads in the township for thirty-four years. He testified that for twenty-five years, the township continually has cleared the snow from the roadway following every snowstorm. The township also patched holes and constructed and repaired the drainage ditches along the roadway. The township has graded the entire roadway occasionally, has placed red dog along the road from time to time, and has partially surfaced the road. Minutes from the township supervisors’ meeting were read into evidence at the hearing. The supervisors do not want to dedicate this road as a public highway, but they are willing to continue to plow and patch it.

Pictures of the area introduced at the hearing by petitioners clearly demonstrate that respondents placed large posts inside a clearly-defined dirt roadway. Mr. Waksmunski testified that when ice or snow appear on the road, a truck owned by one of the people using the easement cannot pass through the road at the site of the posts.

At the hearing, respondents maintained that the posts were on their property and that the easement granted in the deed was different from the roadway actually utilized by the individuals in the settlement. They contended that the easement as defined in the deed is located more on petitioners’ property than the roadway as it actually exists and that the posts that encroach on the roadway are not in the easement but are on their own property.

By order dated January 24, 1989, the equity court granted petitioners’ request for a permanent injunction as to a fourteen foot roadway. It established the easement by reference to the survey introduced into evidence by petitioners at the hearing. The equity court modified the position of the easement from that contained in the deed, which is delineated in the survey. It changed the boundaries of the easement to conform to the way the easement actually has been utilized, thus making it conform with the roadway as it appears in the photographs introduced into evidence. Under the court-ordered easement, respondents’ posts are within the easement, and respondents were ordered to remove the posts. The equity court declined to widen the roadway to thirty-three feet by dedicating it as a public roadway.

The Dilginises filed a timely appeal from the order, and the Waksmunskis filed a timely cross-appeal.

Dilginis Appeal

The Dilginises first contend that the equity court had no jurisdiction to entertain this matter in that the action should have been brought at law. Since they never raised this issue by preliminary objection, the issue has been waived. Pa.R.C.P. 1509(c) (objection that equity court has no jurisdiction due to existence of adequate remedy at law is waived if not raised by preliminary objection).

The next issue raised by the Dilginises is whether the evidence established that the roadway as it exists was obstructed by the fence posts. We conclude that the evidence establishes obstruction. The photographs of the roadway introduced into evidence at the hearing clearly show that the posts are on the dirt roadway and that larger motor vehicles have difficulty navigating through the portion of the roadway where the posts are located. Further, the boundaries of the dirt roadway are clearly marked by the start of grass and weed growth. Accordingly, we affirm the equity court’s finding of encroachment.

Next, the Dilginises object to where the equity court placed the easement, and they argue that the order effectuated a reformation of the deed. They note that reformation of a deed may be made only if there is a mutual mistake in the deed. However, the Dilginises misconstrue the effect of the order. The equity court did not reform the deed description; it explicitly based its location of the easement by reference to the survey introduced by the Waksmunskis. The survey is based on the deed. The equity court merely changed the boundaries of the easement to reflect where the easement actually has been used since its inception which leads us to the next argument raised by the Dilginises.

The Dilginises argue that “[n]o evidence was presented to establish that Mr. and Mrs. Waksmunski are entitled to an easement by prescription.” Dilginis brief at 9. We disagree. Mr. Sasgiver testified that he personally had supervised the plowing of the roadway for twenty-five years. Both parties were in agreement at the hearing that the configuration of the roadway as it now exists has not changed since they were children — far in excess of twenty-one years. In fact, at the hearing, the Dilginises never denied that they placed the posts inside the roadway actually used by the other residents of Dutch settlement. They defended their actions solely on the ground that they could place their posts where they are because the posts are on their property. They implicitly conceded by this position that the road has been used inconsistently with the deed description. The Dilginis deed is dated 1947.

The Pennsylvania Supreme Court recently reiterated the elements of a prescriptive easement:

The standards for determining the acquisition of title to land by adverse possession and for determining whether an easement over property has been extinguished by adverse possession contain the same basic elements — in each situation, the possession that will acquire title or extinguish an easement must be actual, continuous, adverse, visible, notorious and hostile possession of the land in question for the prescriptive period of twenty-one years.

Estojak v. Mazsa, 522 Pa. 353, 361, 562 A.2d 271, 275 (1989); see also Keefer v. Jones, 467 Pa. 544, 359 A.2d 735 (1976).

Furthermore, our standard of review on this issue is extremely narrow:

We are constrained by a narrow standard of review and are bound by the trial court’s determination pertaining to the credibility of the witnesses and the weight to be accorded the evidence:
Appellate review of equity matters is limited to a determination of whether the chancellor committed an error of law or abused his discretion. The scope of reviéw of a final decree in equity is limited and will not be disturbed unless it is unsupported by the evidence or demonstrably capricious.
Hostetter v. Hoover, 378 Pa.Super. 1, 6 547 A.2d 1247, 1250 (1988) (citations omitted).

Fuisz v. Fuisz, 386 Pa.Super. 591, 596, 563 A.2d 540, 541 (1989); see also Buffington v. Buffington, 390 Pa.Super. 61, 568 A.2d 194 (1989) (equity court’s determination regarding existence of easement will not be reversed on appeal absent abuse of discretion, lack of evidentiary support, or capriciousness).

Instantly, there was direct evidence that the occupants of Dutch settlement have used the roadway shown in the photographs openly, notoriously, and continuously for a period that exceeds twenty-one years. We will not reverse the equity court’s determination regarding the boundaries of the easement.

Waksmunski Appeal

The Waksmunskis appeal the equity court’s determination that the roadway should not be dedicated as a public road pursuant to 53 P.S. § 66105 which provides, “Every road not of record which has been used for public travel and maintained and kept in repair by the expenditure of township funds for a period of at least twenty-one years and upwards shall be deemed to be a public road of the width of thirty-three feet____”

However, we believe that the township should have been joined as an indispensable party to this action and that we have no jurisdiction to decide the issue. See Nelson v. Dibble, 353 Pa.Super. 537, 510 A.2d 792 (1986) (issue of failure to join indispensable party cannot be waived; if such a party is not joined, court is without jurisdiction to decide the matter).

An indispensable party in an equity action is one whose rights are so connected with the claims of the parties that a decree cannot be entered without impairing those rights. Id. Instantly, the township’s rights are inextricably bound with dedication of this road to its care. The obligation of the township to maintain this easement as a public highway involves use of substantial public funds, including widening the road by approximately twenty feet. The following factors are utilized in determining whether a party is indispensable: 1) whether the party has a right or interest related to the claim; 2) the nature of the right or interest; 3) whether the right or interest is essential to the merits; and 4) whether justice can prevail without violating due process rights of the absent party. Id., citing Mechan icsburg Area School District v. Kline, 494 Pa. 476, 481, 431 A.2d 953, 956 (1981).

At least three of the four factors apply here. The township has an interest in the outcome of the litigation since it is the party which would have been burdened with liability had the roadway been dedicated to the public by the equity court. The nature of the interest is substantial as the township could have become liable for maintaining the roadway for all purposes, including possible tort liability for negligent maintenance, and for widening it. The interest directly related to a determination of public use and the township’s obligation. Justice requires that the township be given an opportunity to make its legal arguments regarding whether the obligation should be imposed on it.

In Nelson v. Dibble, supra, we determined that the township was an indispensable party to an action where the issue was whether the township had abandoned what was once its public road. We see no difference here, where the township’s assumption of title and its attendent responsibilities are at issue. Accordingly, we have no jurisdiction to determine the issue of whether this easement became a public road due to the failure to join the township.

However, a remand for joinder is not necessary since the equity court’s disposition of the matter resulted in the roadway not being declared a public responsibility. Compare Nelson v. Dibble, supra. Assuming we had jurisdiction, we would not disturb the equity court’s determination that the road has not been used for “public” travel. See Township of Lower Saucon v. Horvath, 43 Pa.Commw. 172, 402 A.2d 1099 (1979). In the equity court’s opinion, the road was not used by the public, but as private access to homes by the five families residing in Dutch settlement. We would not reverse this factual determination. See Stewart v. Watkins, 427 Pa. 557, 235 A.2d 604 (1967) (determination of “public” use under 53 P.S. § 66105 is one of fact to be determined by equity court and ordinarily will not be disturbed on appeal).

The order of the court is affirmed in all respects. Edward A. and Agnes Dilginis are ordered to remove all obstructions that they have placed along the easement described in Exhibit A to the order entered by the Court of. Common Pleas of Cambria County in this action on January 24, 1989.

      . The Dilginis name is spelled incorrectly in the caption to this action because the name is spelled incorrectly in the caption to the petition instituting the action. The answer to the petition notes the correct spelling of the name.


source: Caselaw Access Project

license: Public Domain

text:
    570 A.2d 93
    Harvey LUCIDORE and Charles Lucidore, Appellants, v. Gloria NOVAK, individually and Executrix of the Estate of Elia P. Skinner, deceased and Shirley Novak.
    Superior Court of Pennsylvania.
    Argued December 6, 1989.
    Filed Feb. 12, 1990.

      William M. Panella, Dist. Atty., New Castle, for appellants.
    Alvin E. Dillman, Jr., Pittsburgh, for Gloria Novak, appellee.
    John J. Dean, Pittsburgh, for Shirley Novak, appellee.
    Before DEL SOLE, KELLY and HESTER, JJ.
   HESTER, Judge:

This appeal presents the issue of whether one division of the court of common pleas is required to transfer a case filed incorrectly in that division to the correct division of the court. We conclude that it is and accordingly, reverse.

On November 17, 1987, Harvey and Charles Lucidore, appellants, instituted this equity action in the civil division of the Court of Common Pleas of Lawrence County against Shirley Novak and Gloria Novak, appellees. Gloria is joined both individually and in her capacity as executrix of the estate of Elia P. Skinner.

In their pleading, which is titled “complaint in equity,” appellants alleged the following. They are nephews of Elia P. Skinner, deceased. A document dated May 29,1987, was admitted to probate by the Register of Wills of Lawrence County on July 10, 1987, as the last will and testament of the decedent. Pursuant to probate of the document, letters testamentary were issued to Gloria Novak. The complaint alleges that at the time of the execution of the will, decedent lacked testamentary capacity and both Gloria Novak and Shirley Novak, an attorney, exercised undue influence over and were in confidential relationships with the decedent. It is further alleged that the will was obtained as a result of the undue influence and confidential relationships. Under the prior last will and testament of the decedent, which appellees later admitted had been executed in 1981, appellants received a higher proportion of the decedent’s assets.

Appellants requested the equity court to enjoin appellees from disposing of the assets of the decedent and to declare the last will and testament dated May 29, 1987, invalid.

On December 21, 1987, appellees filed preliminary objections to the complaint. They averred, among other things, that the civil division of the Court of Common Pleas of Lawrence County lacked jurisdiction to hear the matter because the exclusive jurisdiction for an attack on a register’s decree of probate is by appeal to the orphans’ court division pursuant to 20 Pa.C.S. § 711. They also averred that pursuant to 20 Pa.C.S. § 908, parties aggrieved by a decree of the register are required to post bond when appealing.

In response to the preliminary objections, appellants requested that the matter be transferred from the civil division to the orphans’ court division pursuant to 42 Pa. C.S. § 5103, which in relevant part provides as follows:

§ 5103. Transfer of erroneously filed matters
(a) General rule. — If an appeal or other matter is taken to or brought in a court or magisterial district of this Commonwealth which does not have jurisdiction of the appeal or other matter, the court or district justice shall not quash such appeal or dismiss the matter, but shall transfer the record thereof to the proper tribunal of this Commonwealth, where the appeal or other matter shall be treated as if originally filed in the transferee tribunal on the date when the appeal or other matter was first filed in a court or magisterial district of this Commonwealth____
(c) Interdivisional transfers. — If an appeal or other matter is taken to, brought in, or transferred to a division of a court to which such matter is not allocated by law, the court shall not quash such appeal or dismiss the matter, but shall transfer the record thereof to the proper division of the court, where the appeal or other matter shall be treated as if originally filed in the transferee division on the date first filed in a court or magisterial district.

(Emphasis added).

The equity court refused to transfer the matter under this section on the ground that it lacked jurisdiction to do so. Instead, it dismissed the complaint.

Initially, we note that there is no doubt that appellants incorrectly captioned the nature of their action as a complaint in equity in that this action must be an appeal from probate. Further, there is no doubt that appellants brought the action in the incorrect division of the court of common pleas. See 20 Pa.C.S. § 908(a) (any party aggrieved by a decree of the register of wills must appeal to the orphans’ court within a year of the decree, unless the statutory appeal period is reduced by petition); 20 Pa.C.S. § 711(1) (orphans’ court division has mandatory jurisdiction over matters relating to decedents’ estates).

Case law confirms that an action contesting the validity of a will on grounds of lack of testamentary capacity, undue influence, and confidential relationship must be brought as an appeal from probate in the orphans’ court division of the court of common pleas of the county of the register of wills issuing the decree. Moreover, it is incorrect to file a complaint in the civil division seeking to set aside the will. Mangold v. Neuman, 371 Pa. 496, 91 A.2d 904 (1952); see also Dempsey v. Figura, 374 Pa.Super. 347, 542 A.2d 1388 (1988).

The language of 42 Pa.C.S. § 5103 is absolute, however, admitting to no exceptions. It states that a court lacking jurisdiction shall transfer the action. Accordingly, lack of jurisdiction is not grounds for refusing to transfer. Further, the language states that a matter brought before the incorrect division may not be dismissed. Instantly, the trial court dismissed the action.

The cases interpreting section 5103 compel the conclusion that this action should have been transferred to the orphans’ court division of the court of common pleas, not dismissed. Instructive is Commonwealth v. Jones, 497 Pa. 431, 441 A.2d 1215 (1982), where the criminal' appellant filed a direct appeal to the Supreme Court of Pennsylvania following his adjudication of guilt before a municipal court judge of two summary criminal offenses. Pa.R.Crim.P. 67 provides that following conviction of a summary offense, the defendant must appeal to the court of common pleas of the judicial district in which the conviction occurred. Subsection (g) of the rule provides that the rule is the exclusive means of appealing from a summary conviction. Instead of dismissing the action, and thus denying the appellant review of his convictions, the supreme court transferred the action pursuant to 42 Pa.C.S. § 5103 to the court of common pleas so that the appeal could be heard and resolved.

Similarly, in Commonwealth v. Wadzinski, 485 Pa. 247, 401 A.2d 1129 (1978), the appellant was convicted of a summary offense and filed a petition for a writ of certiorari with the court of common pleas, which ruled that appellant’s constitutional challenge to the statute under which he was convicted was not cognizable in a proceeding on writ of certiorari. The Supreme Court of Pennsylvania reversed. Although the appellant had incorrectly proceeded pursuant to a writ for certiorari instead of appealing as mandated by the minor judiciary appeals act in effect at the time, the supreme court determined that the merits of the appeal should have been entertained.

At the time Wadzinski appealed his summary conviction, the court of common pleas heard appeals regarding procedural irregularities of proceedings before a magistrate, and the court of quarter sessions heard evidence de novo regarding those proceedings. While the case was on appeal, the judicial framework was reformed, leaving one court of original jurisdiction, the court of common pleas.

The court noted that one of the purposes of the unified system is to simplify procedure and remove archaisms from our system. It stated that “[a] case may not be dismissed because brought in the wrong court; if the matter is justiciable, there is jurisdiction in the court of common pleas to hear it, and in a multi-division court the remedy for bringing the case in the wrong division is not a dismissal, but a transfer of the matter to the correct division.” Id., 485 Pa. at 254, 401 A.2d at 1132 (footnote omitted); see also Pennsylvania Social Services Union v. Pennsylvania Labor Relations Board, 11 Pa.Cmwlth. 384, 314 A.2d 347 (1974) (where 43 P.S. § 1101.1502 provided that appeal from an order of the Pennsylvania Labor Relations Board should be filed with court of common pleas and appellant filed appeal to commonwealth court, appeal was not quashed but was transferred to the court of common pleas pursuant to 42 Pa.C.S. § 5103); Gorden v. Cutler, 324 Pa.Super. 35, 471 A.2d 449 (1983) (issue of interdivisional transfers treated in dicta).

We further note that none of the cases relied upon by appellees are dispositive of this issue; nor do they compel a different result. None address the issue of whether 42 Pa.C.S. § 5103 is applicable when the appeal from probate was incorrectly captioned as a complaint in equity and brought in the civil instead of orphans’ court division. In Mangold v. Neuman, supra, the predecessor statute to section 5103 was not discussed.

Further, this is not a “collateral” attack on the decree since the action was filed within a year of the decree of probate. Under section 5103, the appeal or other matter brought before a court lacking jurisdiction is treated upon transfer as having been filed originally in the transferee division on the date the appeal or other matter was brought in the incorrect division or court. Appellants brought the action within a year of the decree of probate; it was an action to set aside the will on grounds of undue influence, confidential relationship, and lack of testamentary capacity; and appellants’ request to have the action transferred to the orphans’ court division was not an attempt to bypass the statutory appeal period of one year set forth in 20 Pa.C.S. § 908. Compare Dempsey v. Figura, supra (equity complaint to set aside transfer of bonds cannot be consolidated with untimely appeal from probate thus effectively avoiding one-year appeal period set forth in 20 Pa.C.S. § 908).

The order is reversed and the case is remanded to the orphans’ court division of the Court of Common Pleas of Lawrence County. The complaint in equity is to be considered as a petition sur appeal from probate filed as of November 17, 1987, from the July 10, 1987 decree of the Register of Wills of Lawrence County admitting the document dated May 29, 1987, to probate as the last will and testament of Elia P. Skinner. The orphans’ court is to rule upon the remaining preliminary objections raised by Gloria and Shirley Novak with respect to the petition sur appeal from probate. Jurisdiction relinquished.

      . Appellees mischaracterize section 908 of the the Probate, Estates, and Fiduciaries Code in that under section 908(b), bond is required on appeal from a register’s decree only where bond is requested by petition to the orphans’ court.


author: POPOVICH, Judge:

text:
    570 A.2d 509
    Florence CHATHAM, an Individual, v. AETNA LIFE & CASUALTY COMPANY and State Farm Mutual Insurance Company. Appeal of AETNA LIFE & CASUALTY COMPANY.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1989.
    Filed Dec. 13, 1989.
    Reargument Denied Feb. 26, 1990.

      Timothy J. Burdette, Pittsburgh, for appellant.
    Loraine, S. Tabakin, Pittsburgh, for Chatham, appellee.
    Frank M. Gianola, Pittsburgh, for State Farm, appellee.
    Before McEWEN, POPOVICH and MONTGOMERY, JJ.
   POPOVICH, Judge:

•This case involves an appeal from the order of the Court of Common Pleas of Allegheny County granting judgment on the pleadings in favor of the plaintiff/appellee Florence Chatham (Chatham) and against the defendant/appellant Aetna Life & Casualty Company (Aetna). We affirm.

On October 25, 1988, Chatham filed a Complaint For Declaratory Judgment pursuant to 42 Pa.C.S. § 7513 et seq. Therein, she alleged that on November 8, 1984, she sustained serious injuries while driving a vehicle in the course of her employment. In particular, she was struck in the rear by an uninsured motorist.

The plaintiff’s employer carried uninsured motorist insurance on the vehicle with Aetna. Also, the plaintiff was a named insured on two other uninsured motorist policies issued to her by State Farm Mutual Insurance Company. See footnote 1.

After the collision, Chatham pursued her workmen’s compensation claim and is presently receiving remuneration thereunder. Additionally, the plaintiff submitted a claim with Aetna for uninsured motorist benefits. But she was refused such coverage by Aetna, which did so on the basis of the Supreme Court’s ruling in Lewis v. School District of Philadelphia, 517 Pa. 461, 538 A.2d 862 (1988). It was Aetna’s contention that under Lewis, an employee injured in the course of his/her employment was limited to recovery under the provisions of the Workmen’s Compensation Act, and he/she could not also recover uninsured motorist benefits through the employer’s carrier.

Because of the existence of a bonafide question of law concerning whether the Lewis ruling controlled the plaintiff’s claim, she requested the entry of a declaratory judgment by the court to resolve the controversy.

In response to the declaratory judgment requested, Aetna filed an answer and new matter in which it admitted declining to pay uninsured motorist benefits under an insurance policy issued to the plaintiff’s employer. It did so on the basis of the Workmen’s Compensation Act (see 77 P.S. § 481) being the sole and exclusive liability of an employer or its insurance company in the payment of benefits to an employee/claimant, i.e., Aetna, as an insurer for the plaintiff’s employer, could not be subject to liability for the payment of any sums other than those benefits called for under the Workmen’s Compensation Act.

The plaintiff filed a reply to Aetna’s new matter claiming that the allegations made were conclusions of law to which no response was required. Likewise, State Farm filed an answer in which it asserted, inter alia, that Aetna had primary coverage for payment of the uninsured motorist benefits. Thereafter, a Motion For Judgment On The Pleadings was filed by the plaintiff in which she asserted that, since none of the insurers denied issuing uninsured motorist policies covering the plaintiff, and because no issues of fact remained in dispute, a declaratory judgment on the pleadings was appropriate for the court to consider and enter.

In the plaintiff’s memorandum in support of the judgment on the pleadings, she remarked that because the collision occurred less than six weeks after the effective date of the Motor Vehicle Financial Responsibility Law (MVFRL), it governed the case. Moreover, the plaintiff urged that the Lewis decision did not control the matter to be decided because it dealt with the former “No-Fault” insurance law, which was repealed and superseded by the MVFRL. And, of importance to the lower court’s decision, the plaintiff pointed out that the MVFRL provided that no right of subrogation would be permitted to reduce a claimant’s tort recovery with regard to workmen’s compensation benefits. See 75 Pa.C.S. § 1720.

A cross motion for judgment on the pleadings was submitted by Aetna in which it reiterated its belief that the Workmen’s Compensation Act provided the sole and exclusive remedy which an employee has against the employer or its insurer, citing 77 P.S. § 482.

A brief was likewise filed by Aetna in support of its contentions, primary of which was the exclusivity of the Workmen’s Compensation Act (see 77 P.S. § 481(a)) as buttressing its belief that it was not obligated to pay an employee uninsured motorist benefits through his/her employer’s insurance coverage where an uninsured motorist was involved and workmen’s compensation benefits were being received by the employee/claimant. Again, it cited Lewis, supra.

The lower court, after reviewing the pleadings, the briefs and oral argument heard, granted the plaintiff’s judgment on the pleadings. It did so on the basis that: (1) in Lewis, unlike the case here, the court was dealing with employers who were self-insured; and (2) in Lewis, the court concluded that the Workmen’s Compensation Act was amended subsequent to the Uninsured Motorist Act under which the case was brought and controlled the outcome. Thus, the Workmen’s Compensation Act took precedence. In contrast, instantly the MVFRL was promulgated subsequent to the Workmen’s Compensation Act, and, therefore, the MVFRL, which nowhere precluded an employee from recovering from an employer’s insurance carrier when insured to recover from an uninsured tortfeasor, controlled. Finally, (3) because the action of the employee was not an action against the employer, but rather against a negligent tortfeasor, the conduct was within the scope of the MVFRL and did not foreclose the employee from securing both workmen’s compensation and uninsured motorist benefits through the employer and its insurer. So wrote the court below.

Once a praecipe for entry of judgment to the prothonotary of Allegheny County was filed by Aetna, a timely appeal was perfected challenging the entry of the order granting judgment on the pleadings to the plaintiff and against the defendant Aetna.

The sole issue raiséd for our consideration is whether the Workmen’s Compensation Act takes precedence over the MVFRL so as to preclude the plaintiff/employee from recouping uninsured motorist benefits through her employer’s insurance policy with Aetna, or is she entitled under the case law to recover both workmen’s compensation benefits and uninsured motorist benefits via her employer's policy of insurance?

In making our determination, we are guided by the Supreme Court’s ruling in Selected Risks Ins. v. Thompson, 520 Pa. 130, 552 A.2d 1382 (1989). In Thompson, the insurer had issued a “Business Auto Policy” in the name of a volunteer fire department covering several vehicles operated by the department. The policy also provided for uninsured motorist coverage, as required by the then extant Uninsured Motorist Act. No individuals were specified as named insureds.

On April 15,1982, a volunteer firefighter with the department, while on duty, was injured in a collision with an automobile driven by an uninsured motorist.

The matter had been submitted to arbitration for resolution. An award was entered in favor of the volunteer fireman. However, by the time the arbitration proceeding took place, the injured fireman had received workmen’s compensation benefits from another insurance company, which were paid pursuant to a policy issued to the borough for which the fireman volunteered his service.

When the fireman sought to recover the uninsured motorist benefits the insurer refused to pay, and the matter was arbitrated, as just mentioned, in favor of the fireman. In deciding the case, one of the issues the Supreme Court addressed was the insurer’s inquiry of whether it should be permitted to reduce the uninsured motorist benefits to be paid by the amount of workmen’s compensation benefits received by the fireman.

Because the insurer provided in its insurance policy the ability to set-off for insurance paid all sums paid or payable under any workmen’s compensation, the Court had to decide whether such clause and unambiguous contractural language was void as being contrary to public policy.

In the course of reversing the portion of Superior Court’s appealed order allowing the insurer the right to offset such payments against insurance benefits paid the claimant, the Supreme Court endorsed a contrary position held by some of our sister states on the subject, and it garnered from such out-of-state rulings the following justification for following suit; to-wit:

... first, uninsured motorist coverage is paid for by a separate premium, and to give the uninsured motorist carrier a set-off based on the fortuitous existence of a collateral source would result in a windfall to the carrier; second, uninsured motorist coverage is mandated by statute and any variation from that statutory mandate should come from the legislature; third, workmen’s compensation only covers a fraction of what tort damages would cover, (e.g. workmen’s compensation does not provide 100% of wage loss coverage, nor pain and suffering, nor other consequential damages) and a dollar-for-dollar set-off does not recognize this rarity; and fourth, there is no public policy against an individual purchasing additional uninsured motorist coverage to protect himself and his family against the shortfall which could result from a dependency on workmen’s compensation benefits.
We think that all of these reasons are sound and on these alone we are inclined to void this provision. However, there is a more compelling reason. In the new Motor Vehicle Financial Responsibility Law, which contains the current Uninsured Motorist Law, the General Assembly has spoken clearly on this issue. In section 1735 the law provides:
The coverages required by this subchapter shall not be made subject to an exclusion or reduction in amount because of any worker’s compensation benefits payable as a result of the same inquiry.
75 Pa.C.S. § 1735 (emphasis added). Although this act took effect after the incident here at issue, and therefore is controlled as a statute, it is certainly a persuasive statement of what the legislature perceives as the appropriate public policy in dealing with such set-offs. Therefore, we have no hesitation in striking this provision as void.

520 Pa. at 143 & n. 31, 552 A.2d at 1388 & n. 31 (Emphasis added in part).

Although the issue posed for our perusal has yet to be decided on its merits by the Pennsylvania Supreme Court, we would be remiss and myopic in our reading of Thompson if we failed to acknowledge that Court’s endorsement of the MVFRL superceding the previously enacted Uninsured Motorist Act. Therefore, we take our direction from Thompson, the most recent pronouncement from the high court revealing that the MVFRL can be interpreted to sanction, in graphic terms, the Legislature’s condonation of a claimant/employee’s right to secure both workmen’s compensation and uninsured motorist benefits resulting from work related injuries.

We read Thompson to approve the payment of claims for benefits originating, and subject to obtainment by a claimant, through the workmen’s compensation scheme of recovery and the uninsured motorist policy obtained by an employee’s employer. In other words, the high court having spoken on the issue to be resolved, albeit in glancing terms, we read Thompson to embrace the action we take today.

Accordingly, because the Thompson decision, as we read it, is clear on the issue appealed, in addition to the MVFRL (as to dual recovery) being later in time than Pennsylvania’s Workmen’s Compensation Law’s exclusivity bar (see Lewis, supra, 517 Pa. at 469-71, 538 A.2d at 866), we have no reluctance in affirming the lower court’s judgment on the pleadings.

Judgment affirmed.

      . State Farm Mutual Insurance Company was a defendant below. However, with the lower court’s entry of judgment on the pleadings against Aetna only, State Farm is not a party to the present appeal. Reference to State Farm is for informational purposes in reciting the facts as appear in the record.

      . Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq.

      . . 75 Pa.C.S. § 1701 et seq.

      . Act of August 14, 1963, P.L. 909, § 1, as amended, 40 P.S. § 2000.

       Act of February 12, 1984, P.L. 26, No. 11, § 3, 75 Pa.C.S. § 1735.

      . To the extent that the insurer proffers cases to alter our stance, we feel confident that Thompson provides the guide posts to follow in this case.

      . To elaborate upon what was stated in footnote 5, we do not read Azpell v. Old Republic Ins. Co., 382 Pa.Super. 255, 555 A.2d 168 (1989), to control in the case instantly. Especially given the language utilized in Thompson to approve of the MVFRL’s allowance of dual recovery, i.e., workmen's compensation and uninsured motorist benefits, even though both have their genesis in a work-related injury for which compensation is sought, at least in part, through the employer’s policy of automobile insurance made applicable because of the claimant/employee’s use of a company vehicle while sustaining injury.


author: HESTER, Judge: MELINSON, Judge, CIRILLO, President Judge,

text:
    570 A.2d 513
    Michael TRAVAGLIA and Ilene Travaglia, Appellants, v. C.H. SCHWERTNER & SON, INC., United Engineers & Constructors, Inc. and Providence Steel Company. (Two Cases) Michael TRAVAGLIA and Ilene Travaglia, v. C.H. SCHWERTNER & SON, INC., United Engineers & Constructors, Inc. and Providence Steel Company. Appeal of C.H. SCHWERTNER & SON, INC., United Engineers & Constructors, Inc.
    Superior Court of Pennsylvania.
    Argued April 19, 1989.
    Filed Dec. 29, 1989.
    Reargument Denied March 8, 1990.

      Joseph I. Fineman, Philadelphia, for Travaglia, appellants (at 2714 and 2715) and appellees (at 2826).
    Frank C. Bender, Philadelphia, for Sehwertner and United Engineers, appellants (at 2826) and appellees (at 2714 and 2715).
    Andrew L. Braunfeld, Norristown, for Providence Steel, appellee (at 2714, 2715 and 2826).
    Before CIRILLO, President Judge, and MELINSON and HESTER, JJ.
   HESTER, Judge:

Appellants, Michael and llene Travaglia, appeal from the September 1, 1989 order entered by the Court of Common Pleas of Philadelphia County granting summary judgment in favor of United Engineers & Constructors, Inc. We reverse and remand for trial.

The record reveals the following. In November, 1972, Philadelphia Electric Company (PECO) entered into an agreement with United Engineers & Constructors (United) whereby United would furnish consulting, engineering, design and construction services for various pollution control facilities of PECO. United thereafter proceeded to supervise construction of various facilities of PECO, including those at its Eddystone power station. On October 26,1981, PECO and United updated and formalized United’s obligation to continue to provide consulting, engineering, design, and construction services for this project.

In April, 1981, PECO entered into a written contract with C.H. Schwertner & Son, Inc. (Schwertner) whereby PECO was to pay Schwertner $2,240,958.00 to design and construct four concrete storage silos using the slip-form method of construction, a highly sophisticated procedure wherein concrete and reinforced steel are installed in forms to create the silo walls in a continuous-pour basis, an operation wherein United lacked expertise. This construction was to be done at the PECO Eddystone power station. The contract was signed by United but solely on behalf of PECO; United was not a party to this contract. Schwertner then entered into a sub-contract with Providence Steel Company (Providence) for the installation of steel reinforcing bars in the walls where the concrete was to be poured. Plaintiff-appellant Travaglia was employed by Providence and was injured while employed.

Travaglia argues that the trial court erred as a matter of law by granting summary judgment in favor of United on the basis of statutory employer immunity after all parties had stipulated that Schwertner was Travaglia’s statutory employer. Pennsylvania Rule of Civil Procedure 1035(b) provides, in pertinent part, that on a motion for summary judgment:

[t]he judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Pa.R.C.P. 1035(b); Dume v. Elkcom Co., 368 Pa.Super. 280, 533 A.2d 1063 (1987).

When reviewing a trial court’s imposition of summary judgment, we have stated:

Summary judgment is made available by Pa.R.C.P. 1035 when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. To determine the absence of a genuine issue of material fact, we must view the evidence in the light most favorable to the non-moving party and any doubts must be resolved against the entry of judgment. In so doing, we accept as true all well-pleaded facts in appellant’s pleadings and give appellant the benefit of all reasonable inferences to be drawn therefrom. Summary judgment is appropriate only in those cases which are clear and free from doubt.

Bobb v. Kraybill, 354 Pa.Super. 361, 364, 511 A.2d 1379, 1380 (1986) (citations omitted). Thus, we are required to determine the existence of any genuine issues of material fact which the trial court may have overlooked. In so doing, we may reverse the trial court only where there has been an error of law, or a clear or manifest abuse of discretion. Lened Homes v. Department of Licenses and Inspections, 386 Pa. 50, 123 A.2d 406 (1956); Dume v. Elkcom Co., supra; Peters Township School Auth. v. United States Fidelity & Guaranty Co., 78 Pa.Cmwlth. 365, 467 A.2d 904 (1983). Applying these principles, we must resolve whether the trial court properly concluded that no genuine issue of material fact existed and whether Travaglia’s claim was barred as a matter of law.

Travaglia argues that United was not a party to the silo construction contract between PECO and Schwertner, and further, that United’s prior letter agreement contract with PECO was not referenced in any PECO-Schwertner contract. Due to this omission, and the fact that PECO allegedly paid Schwertner directly, Travaglia maintains that United cannot be considered the general or principal contractor of the silo construction. Without the status of principal or general contractor, United cannot claim immunity as the “statutory employer” under the Workmen’s Compensation Act. “Most compelling,” appellant states, “is the argument that under the rationale of McDonald v. Levinson Steel Company, 302 Pa. 287, 153 A. 424 (1930), an owner or one standing in the place of an owner cannot be a statutory employer.” Appellant’s brief at 14.

In evaluating United’s contention that United was Travaglia’s statutory employer, we must keep in mind the following guidelines:

[V]ery great care ... must be exercised before allowing an employer to avoid his liability at common law by asserting that he is a statutory employer. Section 203 of the Workmen’s Compensation Act, which was designed to extend benefits to workers, should not be casually converted into a shield behind which negligent employers may seek refuge.

Stipanovich v. Westinghouse Electric Corp., 210 Pa.Super. 98, 106, 231 A.2d 894, 898 (1967). See Grant v. Riverside Corp., 364 Pa.Super. 593, 528 A.2d 962 (1987).

In construing section 203 of the Workmen’s Compensation Act, we held that five elements must be present before a contractor may be considered the statutory employer of another contractor’s employees.

To create the relation of statutory employer under section 203 of the act, all of the following elements essential to a statutory employer’s liability must be present: (1) An employer who is under contract with an owner or one in the position of an owner. (2) Premises occupied by or under the control of such employer. (3) A subcontract made by such employer. (4) Part of the employer’s regular business entrusted to such subcontractor. (5) An employee of such subcontractor.

McDonald v. Levinson Steel Co., supra, 302 Pa. at 294-95, 153 A. at 428; Cox v. Turner Construction Co., 373 Pa.Super. 214, 540 A.2d 944 (1988); see also Zizza v. Dresher Mechanical Contractors, 358 Pa.Super. 600, 518 A.2d 302 (1986) (en banc); O’Boyle et ux. v. J.C.A. Corp., et al., 372 Pa.Super. 1, 538 A.2d 915 (1988); Dume v. Elkcom Company, Inc., supra; Grant v. Riverside Corp., supra. McDonald v. Levinson Steel Co., supra, labeled these criteria as “essential.” Stipanovich v. Westinghouse Electric Corp., supra, characterized them as “strict” requirements.

Travaglia was an employee of Providence; Providence was subcontracted by Schwertner. Schwertner was contracted by the owner, PECO. United was not involved in this chain of contracts. United was not a party to the contract between PECO and Schwertner. Consequently, summary judgment should not have been awarded to United. The following three findings of the trial court are in error: 1) that Travaglia was an employee of a second subcontractor of United; 2) that United need not be a party to the construction contracts in question to fulfill requirement number three of the McDonald mandate; and 3) that no direct contractual relationship is necessary for United to be entitled to common law tort immunity.

A reading of the McDonald, Stipanovich, Grant, and Cox opinions substantiates this conclusion. The McDonald test requires that to create the relationship of statutory employer under section 203 of the- act, the following element must be present: “(3) A subcontract made by such employer.” Construing the third element of the McDonald test strictly as Stipanovich stated we must, the absence of a subcontract made by United to either Schwertner or Providence defeats its contention that it was Travaglia’s statutory employer.

The viability of the requirement of a “subcontract made by” the contractor seeking statutory employer status was recently reaffirmed by this court in Grant v. Riverside Corp., supra. In Grant, the general contractor hiréd both Riverside Corporation and Reiling as subcontractors. Riverside agreed to install a hoist, and Reiling agreed to provide miscellaneous metal work and skilled ironworkers. Plaintiffs decedent, an employee of Reiling, fell to his death while working in the hoist. Plaintiff sued Riverside, and a jury verdict was entered in plaintiffs favor. On appeal, a panel of this court affirmed the judgment, rejecting Riverside’s contention that it should be afforded common law immunity as a statutory employer. We found that there was no “vertical relationship” between Riverside and Reiling as both were subcontractors hired by the general contractor. “Riverside,” we stated, “did not subcontract Reiling.” Id., 364 Pa.Super. at 601, 528 A.2d at 966. Likewise in the instant case, United did not subcontract Schwertner, nor Providence; rather, Schwertner was contracted by PECO and in turn, subcontracted Providence. United was not a party to either of these contracts. It follows, therefore, that United should not be afforded immunity from common law liability as to employees of Providence or Schwertner.

The fact situation before us is on all fours with our recent opinion in Cox v. Turner Construction Co., supra. There, United States Steel Corporation planned to construct a skyscraper in downtown Pittsburgh. It designated a corporate sub-division, USS Realty Development (USR) as construction manager for the project. USR contracted with Turner Construction to be the contractor. USR then negotiated a separate contract with Otis Elevator Company (Otis) to install the elevators and escalators. Although it was Turner’s responsibility to supervise the construction, it did not subcontract Otis; rather, USR subcontracted Otis. Otis was paid by USR, not Turner. Plaintiff Cox, an employee of Otis, was injured as a result of Turner’s negligence and entered suit against Turner. Turner defended on the ground that it was plaintiff’s statutory employer, that its contract with USR gave it full control over the job site and directed it to coordinate the work of all subcontractors, that the contract between Otis and USR recognized the centrality of Turner’s role in the construction project by identifying Turner as the general contractor and instructing Otis, described as the subcontractor, to deal with Turner in all matters “relating to this agreement” and to perform the work to the entire satisfaction of Turner.

The trial court disagreed and submitted the case to the jury, which returned a verdict in favor of Cox. On appeal, we affirmed on the basis that the third element required by McDonald was lacking i.e., that there was no contract between Turner and Otis; therefore, Turner could not be the statutory employer of Otis’ employees. Turner argued that, despite the absence of a subcontract between Turner and Otis, it should not be denied statutory employer status since a subcontract relationship existed between them. We held:

Turner would have us hold that the control which it exercised over the construction project is evidence that the contractual agreement was the “functional equivalent” of a subcontract. We disagree. Turner’s control over the project is not an appropriate consideration in assessing whether the third prong of the McDonald test has been satisfied. Rather, a finding that Turner exercised control over the project would appear to support a holding that the second prong of the McDonald test— “premises occupied by or under the control of such employer” — has been satisfied. The second prong, however, is not at issue instantly; it is undisputed that it has been satisfied. Moreover, the second and third prongs of the McDonald test are distinct, and evidence which tends to prove the existence of one will not prove the existence of the other. We recently articulated this point in Grant v. Riverside, supra, where we denied Riverside statutory employer status since it did not enter into a subcontract with the injured worker’s employer, Reiling. We noted, “Even were we to find that Riverside was in joint control of the work premises with [the general contractor], Riverside did not subcontract Reiling.” Id. at 601, 528 A.2d at 966. Likewise instantly, Turner’s control over the project lends no support to the argument that Turner subcontracted Otis.

Cox v. Turner Construction Co., supra, 373 Pa.Super. at 220-21, 540 A.2d at 947.

Instantly, the lower court, in reasoning that no contractual relationship was required between United and Schwertner or Providence in order for United to be immune from common law tort action, relied on Dume v. Elkcom Company, Inc., supra, which, in turn, relied on Qualp v. James Stewart Co., 266 Pa. 502, 109 A. 780 (1920). The Dume court, in discussing the Qualp opinion stated:

Thus, the Qualp holding, which remains the law of Pennsylvania today, enunciates that privity of contract is not required between the general contractor and the actual employer of the injured workman for purposes of liability for workmen’s compensation benefits.

Dume v. Elkcom Company, Inc., supra, 368 Pa.Super. at 287, 533 A.2d at 1067 (emphasis added). The court further stated:

Since the existence of a contractual relationship is not a prerequisite to a general contractor’s obligation to provide workmen’s compensation benefits, it reasonably follows that no contractual relationship need exist between the general contractor and the subcontractor in order for the general contractor to enjoy common law tort immunity under the Act.

Id., 368 Pa.Super. at 289-90, 533 A.2d at 1068 (emphasis added).

We disagree. The holding in Qualp has been superseded by the supreme court’s mandate set forth in McDonald. The fiction of statutory employer was created to fix the responsibility for the obligation of paying compensation to injured workmen. The well-reasoned opinion of Judge Hoffman in Stipanovich v. Westinghouse Electric Corp., supra, outlines the reason for the enactment of the statutory employer legislation and the development of the condition which resulted in the Pennsylvania Supreme Court creating the five strict requirements in the McDonald opinion. Judge Hoffman stated:

The status of statutory employer was created under § 203 of the Workmen’s Compensation Act which provides: “An employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of the employer’s regular business entrusted to such employe or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employe.” Act of June 2,1915, P.L. 736, art. II, § 203, as amended, 77 P.S. § 52.
The purpose of this provision was set forth in Qualp v. James Stewart Co., 266 Pa. 502, 509, 109 A. 780, 782 (1920): “The Legislature wanted to definitely fix some responsible party with the obligation of paying compensation to injured workmen, and the party selected was the first whose duty it was to assume control of the work. It selected the first in succession from the owner, believing the owner would contract with none but responsible persons. He was the first in the field and in the contracting scheme of work, the head of the endeavor, the person to whom an employee would naturally look____ The Act intended to throw the burden on the man who secured the original contract from the owner to the end that employees of any degree doing work thereunder might always be protected in compensation claims.”
Soon thereafter, however, the statutory employer provision, which had been enacted for the purpose of extending workmen’s compensation coverage to employees whose immediate employers were not covered, was seized upon by employers as a possible defense against common law negligence liability.
In recognition of this development, the Supreme Court, in McDonald v. Levinson Steel Co., 302 Pa. 287, 295, 153 A. 424, 426 (1930), set forth five strict requirements under § 203 of the Act which an employer must meet to establish that he is a statutory employer, and thus avoid liability at common law. They are: “(1) An employer who is under contract with an owner or one in the position of an owner. (2) Premises occupied by or under control of such employer. (3) A subcontract made by such employer. (4) Part of the employer’s regular business entrusted to such subcontractor. (5) An employee of such subcontractor.”
Both the Supreme Court in McDonald and the Court of Appeals in Jamison [v. Westinghouse Electric Corp., 375 F.2d 465 (3d Cir.1967)] recognized the very great care which must be exercised before allowing an employer to avoid his liability at common law by asserting that he is a statutory employer. Section 203 of the Workmen’s Compensation Act, which was designed to extend benefits to workers, should not be casually converted into a shield behind which negligent employers may seek refuge. We hold that the inconclusive contracts relied upon by Westinghouse do not warrant our finding that Westinghouse was a statutory employer.

Stipanovich v. Westinghouse Electric Corp., supra, 210 Pa.Super. at 100-101, 106, 231 A.2d at 895-96, 898.

In Stipanovich we applied the McDonald test and determined Westinghouse was not the statutory employer of plaintiff since it failed to comply with the fourth McDonald requirement. Instantly, United is not Travaglia’s statutory employer. United has not satisfied the third element of McDonald — “a subcontract made by such employer.”

The holding in Qualp, decided in 1920, has been drastically changed by the requirements set forth by the Pennsylvania Supreme Court in McDonald. Employers seeking refuge behind the shield provided by the position of statutory employer must meet the five strict requirements mandated by McDonald. This United has failed to do.

As stated above, PECO contracted Schwertner, not United. United was not a party to this contract. PECO paid Schwertner, not United. Schwertner subcontracted Providence, not United. Travaglia was an employee of Providence. Providence was not a subcontractor of United but of PECO. Consequently, summary judgment should not have been granted to United.

The purposes for which the statutory employer provision was created would not be advanced by holding that, under the unique undisputed facts in this appeal from the issuance of a summary judgment, the McDonald criteria have been satisfied. These criteria must be applied strictly, particularly where an allegedly negligent contractor seeks asylum from common law liability. The holding of the trial court would serve only to erect a shield behind which future negligent contractors will be permitted to hide.

Reversed and remanded for trial. Jurisdiction relinquished.

MELINSON, J., files a concurring statement.

CIRILLO, President Judge, files a dissenting statement.

MELINSON, Judge,

concurring.

I join the majority opinion of our distinguished colleague, Judge Hester. I take this opportunity solely to note my opinion that Sections 203 and 302 of the Workmen’s Compensation Act have outlived their usefulness. Section 203 states as follows:

An employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of the employer’s regular business entrusted to such employe or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employe.

Act of June 2, 1915, P.L. 736, art. II, § 203, as amended by the Act of June 21, 1939, P.L. 520, § 1 et seq., 77 Pa.Stat. Ann. § 52. From this parcel of legislative enactment sprung the case law that the majority was constrained to follow in rendering its decision at bar. See McDonald v. Levinson Steel Co., 302 Pa. 287, 153 A. 424 (1930); O’Boyle v. J.C.A. Corporation, 372 Pa.Super. 1, 538 A.2d 915 (1988); Majority Memorandum at 7-12.

Section 302 was recently amended in 1974. Subsection (a) of this section, in pertinent part, states as follows:

A contractor who subcontracts all or any part of a contract and his insurer shall be liable for the payment of compensation to the employes of the subcontractors unless the subcontractor primarily liable for the payment of such compensation has secured its payment as pro vided for in this act. Any contractor or his insurer who shall become liable hereunder for such compensation may recover the amount thereof paid and any necessary expenses from the subcontractor primarily liable therefor.

77 Pa.Stat.Ann. § 461 (emphasis added).

Subsection (b) of Section 302 states:
Any employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of such employer’s regular business entrusted to that employe or contractor, shall be liable for the payment of compensation to such laborer or assistant unless the hiring employe or contractor, if primarily for the payment of such compensation, has secured the payment thereof as provided for in this act. Any employer or his insurer who shall become liable hereunder for such compensation may recover the amount thereof paid and any necessary expenses from another person if the latter is primarily liable thereof.

77 Pa.Stat.Ann. § 462 (emphasis added).

While Section 302 is substantially similar to Section 203, there is no mention whatsoever in Section 302 that it is replacing or amending the provisions of Section 203. Accordingly, ambivalence has resulted in appellate decisions. This court has both utilized Section 203 exclusively and has given effect to both Sections 203 and 302 in interpreting statutory employer immunity. See and compare O’Boyle v. J.C.A. Corporation, 372 Pa.Super. 1, 538 A.2d 915 (1988), with Cranshaw Construction Inc. v. Ghrist, 290 Pa.Super. 286, 434 A.2d 756 (1981). In contrast, our Commonwealth Court has recently cited Section 302 as the amendment to Section 203, employing the language of 302 solely to decide the same issue. Ace Tire Company v. Workmen’s Compensation Appeal Board, 101 Pa.Cmwlth. 186, 515 A.2d 1020 (1986). Clearly, confusion abounds as to which legislative enactment represents the Commonwealth’s position on statutory employer immunity. Under the standards of both sections, however, I believe that the statutory employer immunity doctrine articulated is contrary to basic tenets of American law.

Under these sections, general contractors are completely insulated from tort liability for negligent or grossly negligent acts. Furthermore, as is clear from their language, these sections of the Workmen’s Compensation Act “operate to relieve [the general contractor] from payment of [workmen’s] compensation by placing that responsibility upon the subcontractor.” Capazzoli v. Stone & Webster Engineering Corporation, 352 Pa. 183, 188, 42 A.2d 524, 526 (1945); see also Cranshaw, 290 Pa.Super. 286, 434 A.2d 756. As stated by Arthur Larson, James B. Duke Professor of Law at the Duke University School of Law, “in the increasingly common situation displaying a hierarchy of principal contractors upon subcontractors upon subcontractors, if an employee of the lowest subcontractor on the totem pole is injured, there is no practical reason for reaching up the hierarchy any further than the first insured contractor.” Larson, Workmen’s Compensation Law, § 49.14.

Thus, the effect of these abhorrent legislative pronouncements is to absolve a general contractor of any and all responsibility for negligent or grossly negligent conduct without even imposing upon that contractor the corresponding duty to compensate an injured employee under Workers’ Compensation. Our judicial system is based upon the concept that individuals and corporations alike will be held accountable for their mistakes and indiscretions. To allow general contractors to escape from any sort of liability for injuries to the employees of their subcontractors, without any examination of the circumstances of the injury, clearly runs counter to this fundamental concept.

CIRILLO, President Judge,

dissenting:

I respectfully dissent. I would find that United Engineers & Constructors, Inc. (“United”) was the statutory employer of the appellant, Michael Travaglia (“Travaglia”), and therefore was entitled to common law tort immunity. Consequently, I would affirm the trial court’s order granting United’s motion for summary judgment as a matter of law.

On May 13,1981, Travaglia sustained injuries to his ankle and foot while participating in the construction of four concrete storage silos at an electrical generating station in Eddystone, Pennsylvania. The station is owned by the Philadelphia Electric Company (“PECO”). Prior to 1971, PECO had received a directive from the Environmental Protection Agency mandating that it undertake measures to clean sulphur dioxide fumes which were being emitted from the chimneys at the general operating station. Pursuant to that order, PECO retained United to furnish consulting, engineering, design, and construction services for the project. Among its duties, United was obligated to construct foundations, structures, and auxiliaries; install piping, electrostatic precipitators, ash disposal systems, electrical equipment and wiring; provide a switchyard, and yard facilities, and service equipment necessary for the completion of the job. As “constructors,” United agreed to “execute the construction and to install the machinery and equipment with [Unitedj’s forces;” except in instances where PECO and United “considered] it advantageous, parts of the work [were to be] let to contractors.” The contract expressly provided that all orders and contracts placed by United would be in the name of PECO and signed by United as agents for PECO.

On April 20, 1981, United, acting as agents for PECO, entered into a contract with C.H. Schwertner & Son, Inc. (“Schwertner”), for the design and construction of four silos intended to be used as storage facilities for magnesium oxide and magnesium sulfate ores. These silos were to be constructed using the slip form method of construction. In order to fulfill its contractual obligation, Schwertner entered into an agreement with Providence Steel Company (“Providence”), Travaglia’s employer. While Travaglia was performing his duties, he allegedly slipped on an accumulation of wet concrete or oil which had been spilled on the silo work platform.

The majority, applying the criteria set forth in McDonald v. Levinson Steel Co., 302 Pa. 287, 153 A. 424 (1930), concludes that United could not be a statutory employer because the contract entered into with Schwertner was not a “subcontract made by” United, and therefore United did not satisfy the third element of the McDonald test for acquiring the status of a statutory employer. I disagree.

It is well-settled that to become a statutory employer under the Workmen’s Compensation Act (“Act”), the follow-' ing five elements must be present:

(1) An employer who is under contract with an owner.
(2) Premises occupied by or under the control of such employer. (3) A subcontract made by such employer. (4) Part of the employer’s regular business entrusted to such subcontractor. (5) An employee of such subcontractor.

McDonald, 302 Pa. at 294-295, 153 A. at 428.

By utilizing the reasoning of Grant v. Riverside Corp., 364 Pa.Super. 593, 528 A.2d 962 (1987), Cox v. Turner Construction Co., 373 Pa.Super. 214, 540 A.2d 944 (1988), and Stipanovich v. Westinghouse Electric Corp., 210 Pa. Super. 98, 231 A.2d 894 (1967) to. reach its conclusion, the majority assails the rationale espoused in Qualp v. James Stewart Co., 266 Pa. 502, 109 A. 780 (1920), and applied in Dume v. Elkcom Co., 368 Pa.Super. 280, 533 A.2d 1063 (1987). In Dume, as in the instant case, the third element of the McDonald test was at issue.

Initially, it is imperative to recall the underlying purposes of the Workman’s Compensation Act (“Act”), as stated in Qualp:

The legislature wanted to definitely fix some responsible party with the obligation of paying compensation to injured workmen, and the party selected was the first whose duty it was to assume control of the work. It selected the first in succession from the owner, believing the owner would contract with none but responsible persons. He was the first in the field and in the contracting scheme of work, the head of the endeavor, the person to whom an employee would naturally look____ The act intended to throw the burden on the man who secured the original contract from the owner to the end that employees of any degree doing work thereunder might always be protected in compensation claims.

Qualp, 266 Pa. at 509, 109 A. at 782. Thus, an immediate contractual relationship is not required between the general contractor and an employee of a subcontractor before the general contractor is liable for the payment of workmen’s compensation benefits to that employee. Id. at 508, 109 A. at 781; Dume, 368 Pa.Super. at 287, 533 A.2d at 1067. Likewise, since a direct contractual relationship is unnecessary to expose a general contractor to liability for workmen’s compensation benefits, such a contractual relationship should not be required to achieve the status of a statutory employer. The rationale underlying the above concept is explained in Judge Barbieri’s treatise on Pennsylvania’s workmen’s compensation law:

[I]n negligence cases, the general contractor has the full immunity from suit by the employe of a subcontractor which an immediate employer would have. He is the statutory employer and is the injured employe’s employer for negligence immunity purposes and is secondarily liable for compensation even though the immediate employer or some other intermediate subcontractor ... is insured and responds fully on the injured employe’s claim. The reason for this difference cannot be found in the language of the statute, but the rationale must be that, since the general contractor remains statutorily liable, although only in a reserve status, in return for this he has the statutory employer’s immunity from statutory employe negligence suits in all events.

1 Barbieri, Pennsylvania Workmen’s Compensation & Occupational Disease, § 4.09(3) (1975) (footnotes omitted); see also Dume, 368 Pa.Super. at 288, 533 A.2d at 1067. I am in complete concurrence with Judge Barbieri’s analysis. To engage in an intricate labelling of the parties, and embark on a protracted and detailed analysis of whether a general contractor is a statutory employer entitled to tort immunity, as the majority does here, can only lead to a spate of decisions with no resulting uniformity. When a party is either primarily or secondarily liable for workmen’s compensation benefits to a plaintiff, that party should be granted the protection of common law tort immunity. This approach remains mindful that the Pennsylvania Workmen’s Compensation Act was promulgated to “protect employees and their families by insuring quick and certain payment for work-related injuries without having to resort to the courts.” Wagner v. National Indemnity Co., 492 Pa. 154, 161-162, 422 A.2d 1061, 1065 (1980) (plurality opinion) (emphasis added); Blouse v. Superior Mold Builders, Inc., 363 Pa.Super. 516, 518, 526 A.2d 798, 799 (1987).

Here, it is clear that United has a contingent liability for the payment of workmen’s compensation benefits to Travaglia. See 77 P.S. §§ 461, 462. Consequently, United should enjoy the privilege of common law tort immunity afforded by the Act. Dume, 368 Pa.Super. at 290, 533 A.2d at 1068.

Since the existence of a contractual relationship is not a prerequisite to a general contractor’s obligation to provide workmen’s compensation benefits, it reasonably follows that no contractual relationship need exist between the general contractor and the subcontractor in order for the general contractor to enjoy common law tort immunity under the Act.

Dume, 368 Pa.Super at 289-290, 533 A.2d at 1068. It is my belief that the third requirement of the McDonald test does not mandate that a strict contractual relationship be demonstrated to afford a party the protections of a statutory employer. Because I would conclude that United was a statutory employer under the Act entitled to common law tort immunity, and that the trial court was correct in granting United summary judgment as a matter law, I respectfully dissent.

      . Although the majority concludes that United did not satisfy the third element of the McDonald test, the appellants contend in their brief that only the first and fourth requirements of McDonald are at issue in this case.


author: JOHNSON, Judge:

text:
    570 A.2d 522
    In re P.A.B.; M.E.B.; M.A.B. Appeal of G.B. and P.B., Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1989.
    Filed Jan. 24, 1990.
    Reargument Denied March 8, 1990.

      Ralph D. Oyler, Gettysburg, for appellants.
    Chester G. Schultz, Gettysburg, for Children & Youth Services, participating party.
    Before CIRILLO, President Judge, and BECK and JOHNSON, JJ.
   JOHNSON, Judge:

This is an appeal from an order terminating the parental rights of appellants father G.B. and mother P.B. (Parents). We are asked to apply the Grounds for Involuntary Termination provision of the Adoption Act — specifically, 23 Pa. C.S. § 2511(a)(5) — to loving parents who have an irremediable incapacity. In doing so we must examine how the parental incapacity impacts upon both the physical and emotional dimensions to the children’s needs and welfare. In this case we must take into account the existing parent-child bond, an undisputed fact of record. We conclude that a proper application of the statute mandates against termination; maintaining the natural parent-child relationship best serves the children’s needs and welfare. Therefore we reverse the order terminating the Parents’ rights.

The Parents are married and have three children. P.A.B. (Patrick), born September 22, 1977 is diagnosed as moderately mentally retarded; M.E.B. (Mark), bom April 18, 1980 suffers from developmental disabilities; and M.A.B. (Melissa), born May 1, 1982 has heart disease that requires medication. Although no evidence was presented at the hearing on the subject, counsel for the Parents as well as for Children and Youth Services (CYS) aver that the Parents are mentally incapacitated. The trial court incorporated this averment into its findings: “The parents are of limited intelligence, limited parenting skills and limited ability to understand the obligations and duties of parenthood.” Finding of Fact Number 4.

The Parents needed assistance in caring for their children, which was provided by various social service agencies. However, in March of 1984, CYS decided that these efforts were insufficient, and Patrick and Melissa were removed from the Parents’ custody, were adjudicated dependent and were placed in foster homes. In July of 1983 Mark was removed and was adjudicated dependent, at which time he was placed in foster care. He was returned to the custody of his parents in October of 1983, but CYS resumed custody in March of 1984. Mark is now in a specialized group home.

Since the childrens’ removal, the Parents have put forth considerable effort to maintain association with the children, including meeting a bi-monthly visitation schedule despite the hardships attendant to living in a rural area without private transportation. According to CYS, these visits are conducted outside the Parents’ home due to the need to supervise the visits; CYS claims that the Parents cannot control the children without assistance. In addition, both parents have been attending parenting classes and have been striving to do their best to understand parental duties and how to perform them.

On February 17, 1988 CYS filed separate petitions to terminate the Parents’ parental rights in each child. The petitions did not designate a particular section or sections of the Adoption Act under which termination would be appropriate. However, the petitions included language from 23 Pa.C.S. §§ 2511(a)(2) and (a)(5). These sections provide:

(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.
(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.

23 Pa.C.S. § 2511 (emphasis added).

Counsel were appointed to represent the children as well as to represent the Parents in the termination proceedings. Following hearings, which took place on April 19, 21 and 22, 1988, the court entered Findings of Fact. Along with these findings of fact the court raised sua sponte whether the statutory language of section 2511 may be applied to the Parents, who have no control over their deficiencies, or whether policy considerations and/or constitutional considerations require a different result. The court asked counsel to brief and argue this constitutional question, which they did. Subsequently, the court entered Conclusions of Law and a Decree Nisi on July 25, 1988 finding that the requisites of Pa.C.S. § 2511(a)(5) had been met. The court also concluded, based upon the supreme court’s decision in In re William L., 477 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), that the statutory language on its face does not trigger an unconstitutional termination of rights.

The Parents filed exceptions in which they challenged the trial court’s factual findings as well as whether CYS demonstrated by clear and convincing evidence that the elements necessary to terminate parental rights were present. On October 28, 1988 the Parents filed supplemental exceptions, in which they disputed specific findings of fact. On April 10, 1989, the court dismissed the exceptions and rendered absolute the decree terminating the Parents’ parental rights.

The Parents now appeal, raising the following issues:

1. Does 23 Pa.C.S. § 2511(a)(5) violate the equal protection clause of the 14th Amendment to the United States Constitution?
2. Has Pennsylvania chosen the least restrictive means of promoting its interest in protecting minor children?
3. Does 23 Pa.C.S. § 2511(a)(5) violate the due process clause of the 14th Amendment to the United States Constitution?
4. Does public policy mediate against the termination of parental rights in the absence of a finding of fault?
5. Was the evidence adduced at the hearing in the case sub judice sufficient to support the termination of the Parents’ parental rights?

In reviewing an order involuntarily terminating parental rights:

[T]he scope of appellate review is limited to the determination of whether the decree of termination is supported by competent evidence, (citation omitted). If the 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 Orphan’s Court terminating parental rights will not be disturbed on appeal, (citation omitted). 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” the existence of grounds for doing so. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (citation omitted).

In re Adoption of J.J., 511 Pa. 590, 593-594, 515 A.2d 883, 885-886 (1986), quoting Matter of Adoption of G.T.M., 506 Pa. 44, 46, 483 A.2d 1355, 1356 (1984). Unless the Orphans’ Court abused its discretion or committed an error of law, its findings are entitled to the same weight given a jury verdict. In re Adoption of J.J., 511 Pa. at 594, 515 A.2d at 886.

With this standard in mind we will address the Parents’ appeal. The Parents mount a facial constitutional challenge to 23 Pa.C.S. § 2511(a)(5). The Parents argue that the statute denies them due process by allowing termination when the unsatisfactory conditions are not a result of any fault on their part. . They also submit that they are denied equal protection because the statute impermissibly treats the class of mentally incapacitated people such as themselves differently from others. The substance of their challenge is that mentally impaired parents, by nature, are not capable of improving and so are not capable of remedying adverse conditions resulting from their impairment. Thus, once children have been removed from the home for at least six months, they argue that 2511(a)(5) operates automatically to terminate parental rights of mentally impaired parents: the conditions that led to the removal will always continue to exist, and no amount of agency assistance will remedy the conditions at all, let alone within a reasonable period of time.

The crux of this case is whether the status of having a permanent mental disability is alone sufficient to satisfy 2511(a)(5). This is primarily an issue of statutory interpretation. When a case raises both constitutional and nonconstitutional issues, and if the case can properly be decided on nonconstitutional grounds, we should not reach the constitutional issue. Ballou v. State Ethics Commission, 496 Pa. 127, 436 A.2d 186 (1981). Further, in ascertaining legislative intent, we are to presume that the General Assembly, in creating legislation, does not intend to violate either the state or federal constitutions. 1 Pa.C.S. § 1922(3). Thus, we do not address the equal protection issue raised here; a resolution of how the statute is to be applied properly resolves the case.

A decision that termination would best serve the needs and welfare of the children is required by 2511(a)(5). This determination is not a mere formality flowing from the existence of the preceding four elements enumerated in the statute, 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 this case the court found that the status of mental incapacity was sufficient to satisfy section 2511(a)(5). The court found that the children had been placed outside the home for at least six months and that, because the parents were mentally impaired, the conditions leading to the removal would not change, regardless of assistance available.

Based solely upon these determinations, the court concluded that “[termination of parental rights will best serve the needs and welfare of the child.” Completed Adjudication and Decree Absolute, April 10, 1989. The trial court’s opinion implied that satisfaction of these four requisites required the conclusion that termination would best serve the childrens’ needs and welfare. The trial court did not consider needs and welfare as a discrete consideration. Therefore, the court committed an error of law in misapplying the statute.

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 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. Moreover, in this case, the facts do not warrant this result.

Needs and welfare denotes certain minimum requirements to which all children are entitled, including adequate housing, clothing, food and love. In re Coast, 385 Pa.Super. 450, 466-67, 561 A.2d 762, 770 (1989) (en banc). Thus, needs and welfare has both a tangible dimension, food, clothing and shelter, and an intangible dimension, parental love. The bond with parents is unique and irreplaceable, making preservation of family ties prima facie in the best interests of the child. Conversely, where preserving family unity in form when no parent-child relationship exists will in fact cast the child into an unstable and unhappy environment, a consideration of the child’s needs and welfare may warrant termination. See William L., In re Angry, 361 Pa.Super. 180, 522 A.2d 73 (1987). If, as here, ties with natural parents are present and are an active force in the child’s life, then needs and welfare becomes a concept that argues against termination rather than fosters it. See Coast, supra, (Beck, J. concurring).

It follows that in a termination proceeding under 2511(a)(5), a court, in considering what situation would best serve the child’s needs and welfare, must examine the status of the natural parental bond to consider whether terminating the natural parents’ rights would destroy something in existence that is necessary and beneficial. Hence, the party seeking termination, the one that bears the burden, Santosky v. Kramer, supra, must prove that the family ties either do not exist or no longer help but rather hinder the children. See In re Angry, 361 Pa.Super. at 182-85, 522 A.2d at 75. That the child has already been removed from the home, as is always the case in a termination proceeding instituted under 2511(a)(5), does not in itself mean that a beneficial parent-child bond does not exist. This fact alone cannot be dispositive of whether termination best serves the child’s needs and welfare. Thus, to apply the statute correctly, there must be an inquiry into the status of the bond, regardless of whether the parents have a physical or mental incapacity.

Our supreme court resolved the due process issue in In re William L., supra, where a retarded and pregnant mother voluntarily gave up her three older sons for placement and where CYS sought termination. The court held that parental incapacity due to retardation is a permissible constitutional basis upon which to base termination of incapacitated parents’ rights. Significantly, however, the court’s ensuing analysis demonstrated that a necessary underpinning to this holding is a proper consideration of all factors bearing upon the child’s needs and welfare in light of the facts of record.

First, William L. establishes that while the state can generally not enter into the private realm of family life and that parental rights must be accorded significant protection, the state as parens patriae has an affirmative duty to protect minor children. Thus, the restraint on state interference in family matters does not reach so far as to compel the courts to protect parental rights at the expense of ignoring the rights and needs of children. William L., 477 Pa. at 337, 383 A.2d at 1236. Where the parents do not, for whatever reason, provide for the needs of their children:

[t]he interest of the parent in keeping the child conflicts with the interest of the child in its essential physical and emotional needs and the Legislature has constitutionally mandated that the interests of the weaker party, the child, should prevail.

William L., 477 Pa. at 339, 383 A.2d at 1236. The William L. court rejected appellant’s assumption that the purpose of the termination statute was to punish an ineffective or negligent parent and that therefore a finding of parental fault was constitutionally necessary before termination. Rather, the court pointed out, inquiry should center upon the welfare of the child rather than the fault of the parent. 23 Pa.C.S. § 2511, Comment — 1970.

Next, having decided that the statute was facially constitutional, the William L, court took great care in applying the statute to the facts. 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. Recognizing that the parent-child relationship is necessary to the child, and that an existing parent-child relationship with a natural parent should not be disturbed, the court determined that an irredeemable breakdown of this relationship would justify termination so that the child could form a new bond with an adoptive parent; the child should not be left in limbo with no parental bond at all:

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.

William L., 477 Pa. at 348-349, 383 A.2d at 1241.

The court concluded that the record supported the finding that a parental relationship no longer existed and that whatever relationship had been had greatly deteriorated. All three sons testified that they did not want to live with their mother. Each child was in a pre-adoptive home. Given that there was no relationship with the natural mother, the William L. court affirmed the trial court’s conclusion that the children required a parental bond and that termination would further this goal by paving the way for adoption. Similarly, in In re D.L.R., 495 Pa. 55, 432 A.2d 196 (1981), the supreme court, relying upon William L., summarily affirmed termination of a retarded mother’s parental rights giving as the reason that the record supported the trial court’s determination. Even if the issue before the court was, as was expressed in the dissent, whether mental incapacity alone may justify a termination, the court’s reliance upon William L. suggests that the supreme court affirmed a determination resulting from a properly thorough analysis and not a conclusion that the mere existence of mental incapacity is sufficient to terminate parental rights.

The present case is distinguishable from William L. upon the facts as well as in the way that the court applied the statute. In the present case the trial court accepted the attorneys’ stipulations that the Parents were retarded. Assuming this, the testimony given by social workers regarding the Parents’ inability to care for their children without aid is irrelevant to the nature and strength of the parent-child bonds. However, the record does establish that a parental bond exists, and the trial court itself so concluded. The court found that “The parents have consistently displayed a loving and caring attitude toward the children and have inquired as to their welfare, taken presents and have consistently exhibited the care and love of parents.” Findings of Fact, Number 11.

This finding was supported by uncontested evidence. The Parents raised the three children for six, four and two years respectively, until CYS found it necessary to remove them from the home. Since removal, the Parents have maintained a visitation schedule and have participated in parenting classes. While CYS presented extensive testimony that the Parents had difficulty with such functions as shopping, dressing the children, administering medication and controlling the childrens’ behavior, none of this testimony negated the existence and quality of the emotional parent-child bond. Several of the social workers testified that the Parents obviously loved their children.

On the other hand, in William L., the court had before it expert testimony of a psychiatric examination as well as testimony that even visitation had an adverse effect upon the child. None of this was present in the record in the Parents’ case. Significantly, there is not one shred of evidence that the Parents’ presence had any detrimental effect upon the children. The worst that was testified to was that the children did not obey the Parents during visits. This could be expected where the parents see their children only once every two weeks. We must also remember that these children have special needs to which any parent would have difficulty ministering. When analyzing a parent’s performance, we measure the performance in light of what we would expect an individual to do in circumstances similar to those in which the parent finds himself. In re Adoption of B.D.S., 494 Pa. 171, 431 A.2d 203 (1981).

Cases which at first appear to decide the role of a mental handicap of parents in termination proceedings are, upon closer inspection, inapposite. In In Adoption of J.J., the appellant father was schizophrenic. While the court held that a mental impairment resulting in incapacity may be grounds for termination, the court based its decision upon additional facts, that the father had originally denied paternity, had taken little interest in visiting the child, was unemployed and used drugs. We also affirmed termination of parental rights in In re Angry, supra, where the child was bom in a mental ward from which the father tried to kidnap him, and CYS gained immediate custody. In neither of these cases was there an existing parent-child bond.

In contrast, termination would be detrimental to the present children’s needs and welfare not only because it would sever an important existing parent-child bond, but also because nothing will take the place of this bond. Generally, CYS attempts to plan toward stabilization of a child’s situation, and, toward this end, adoption may best serve a child’s needs and welfare in a given case. See In re Damon B., 338 Pa.Super. 597, 488 A.2d 53 (1985). Termination of parental rights is usually a step toward adoption, although an adoption need not be imminent before an agency may bring a termination petition. In re Burns, 474 Pa. 615, 379 A.2d 535 (1977). In this case, the record only suggests in one statement in testimony that there may be a possibility that Melissa’s foster parents will adopt her. No alternative permanent situations are on the horizon for Patrick and Mark. Thus, termination would cut off a natural and beneficial paren1>child bond and would not facilitate putting another in its place. Termination would stabilize nothing.

We conclude that nothing in the record in this case indicates that a change in the children’s situations would serve their needs and welfare. A determination that the Parents’ incapacity results in an inability to care for the children and that the condition cannot improve over time is alone insufficient to warrant termination under 2511(a)(5). In considering how termination affects the children’s needs and welfare, a court must consider the role of the parental bond in the children’s lives. Here, significantly, the court acknowledged but did not consider the children’s relationship with the Parents.

No precedent prevents the children from living outside the parental home while at the same time maintaining a relationship with the Parents, and no one advocates returning the children to the Parents’ custody. The children’s family would be extended by a disposition of non-termination, and their experience enriched. The children benefit from the relationship with the Parents that they now have. To terminate the Parents' rights would sever the relationship and injure the children. From the undisputed facts of record and from the trial court’s own findings of fact, we apply § 2511(a)(5) and conclude that maintaining the status quo best serves the children’s needs and welfare.

The order terminating the Parents’ parental rights is reversed.