author: CERCONE, Judge:

text:
    525 A.2d 402
    EXTON DEVELOPMENT v. SUN OIL COMPANY OF PENNSYLVANIA, Sun Company, Inc. and Sun Refining and Marketing Company and Hunter Environmental Services, Inc. and Telephone Answering Service of Willowgrove, Inc. and Thomas Cullen. Appeal of HUNTER ENVIRONMENTAL SERVICES, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 25, 1987.
    Filed May 4, 1987.

      William T. Wilson, Pittsburgh, for appellant.
    Michael J. Plevyak, West Chester, for Telephone, appellee.
    Edward J. Tuite, Wayne, for Cullen, appellee.
    Before CIRILLO, President Judge, and TAMILIA, CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from an order sustaining appellees’ preliminary objections and dismissing appellees as additional defendants. Appellees challenged their joinder on the grounds that appellant failed to comply with the time requirements for joinder of additional defendants set forth in Pa.R.C.P. 2253.

Plaintiff, Exton Development, commenced this action against original defendants, Sun Oil Company of Pennsylvania, Sun Company, Inc. and Sun Refining and Marketing Company (Sun Oil), seeking to recover damages for the alleged contamination of plaintiff’s water supply as a result of a gasoline leak. Sun Oil was served with the complaint on June 4, 1985. On August 5, 1985, Sun Oil filed a praecipe for a writ of summons to join additional defendant Hunter Environmental Services, Inc., the appellant in this case. On August 16, 1985, a complaint was filed alleging that the leak had been caused by faulty maintenance performed by appellant. Appellant was served with this complaint on August 27, 1985. On December 5, 1985, appellant filed a Petition for Extension of Time to join as additional defendants, Telephone Answering Service of Willow Grove, Inc. and Thomas Cullen, the appellees in this case. In the absence of a response to the petition, it was granted and appellant filed its complaint on January 16, 1986, alleging that appellees failed to heed appellant’s warning of a leaking pump and failed to take appropriate action after learning of the defective condition. Both appellees proceeded to file preliminary objections based on late joinder. The Honorable John E. Stively, Jr. sustained the preliminary objections thereby dismissing appellees as additional defendants. This appeal followed.

Rule 2253 of the Pennsylvania Rules of Civil Procedure sets forth the time limitation for joinder of an additional defendant as follows:

Rule 2253. Time for Filing Praecipe or Complaint
Neither praecipe for a writ to join an additional defendant nor a complaint if the joinder is commenced by a complaint, shall be filed by the original defendant or an additional defendant later than sixty (60) days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof unless such filing is allowed by the court upon cause shown.

The record reveals that appellant filed its Petition for Extension of Time to join appellees as additional defendants approximately six months after service of plaintiff’s complaint against the original defendants, and more than three months, or 100 days, after appellant was served with the original defendants’ complaint.

It is clear that the burden of demonstrating sufficient cause to allow late joinder of an additional defendant rests with the defendant, who must establish some reasonable justification for its delay. Kovalesky v. Esther Williams Swimming Pools, 345 Pa.Superior Ct. 95, 497 A.2d 661 (1985). Furthermore, whether cause is shown to justify late joinder is a matter for the sound discretion of the trial court, and we shall not reverse absent an abuse of discretion. Welch Foods, Inc. v. Bishopric Products, Co., 254 Pa.Superior Ct. 256, 385 A.2d 1007 (1978).

Appellant urges us to grant it relief by asserting that it was “literally impossible” for it to join appellees within sixty days from the time plaintiff’s complaint was served on the original defendants since the sixty day period had already expired by the time appellant received notice of its own joinder. Neither the other parties to this action nor the trial court deny that this is true. However, appellant has left virtually unexplained a 100-day lapse between the time it was joined and the time it sought to join the appellees. This is where appellant has not acted diligently.

For the following reasons, we hold that where an additional defendant is joined too late to allow joinder of another additional defendant in compliance with the 60-day limit, he remains bound by Rule 2253 to show sufficient cause for any subsequent delay in initiating joinder.

Under the original Rule 2253, each additional defendant was given a period of sixty days after being served with the adversary’s pleading, in which he was permitted to join an additional defendant. Under the original rule, it was therefore possible to delay the action time after time by the successive joining of additional defendants. To avoid this, the present Rule 2253 provides one sixty-day period of limitation, running from the date on which the original defendant is served with a copy of the plaintiff’s initial pleading or an amendment thereof, for all defendants and additional defendants seeking to join an additional defendant. It is recognized that “in most instances the sixty-day period will have expired by the time the first additional defendant has been served with the writ of joinder.” Goodrich-Amram 2d. § 2253.2 at 99. However, “the harshness of a strict statute of limitation is avoided ... by the provision that the court upon cause shown may permit a later filing.” Id. Therefore, although appellant could not have joined appellees within the automatic sixty-day appeal period, it remained incumbent upon appellant to justify the further delay of 100 days.

In its Petition for Extension of Time to Join Additional Defendants, appellant offered no explanation whatsoever, stating only that sixty days had already passed by the time it received notice of its own joinder. In its Memorandum of Law in Opposition to Preliminary Objections, appellant’s proffered explanation for the 100-day delay was that the case was procedurally complicated by one additional defendant and that appellant had experienced a change in counsel during the 100-day lapse. This alone, accompanied by no further details, is insufficient to sustain appellant’s burden.

Appellant also points out that neither the original plaintiff nor the original defendant have objected to the joinder of appellees. In NPW Medical Center of N.E. Penna., Inc. v. LS Design Group, P.C., 353 Pa.Superior Ct. 341, 509 A.2d 1306 (1986), all parties of record stipulated to the late joinder and the stipulation was approved by the trial court. Yet, upon the preliminary objections of the additional defendant, the trial court agreed that the joinder was untimely and dismissed the complaint. This court affirmed. Therefore, in the instant case where there is no stipulation by plaintiff but merely the absence of any opposition, the trial court did not abuse its discretion by sustaining appellee’s preliminary objections.

We are mindful of the general principle that the procedural rules applicable to controversies involving third party procedure should be liberally construed to avoid a multiplicity of lawsuits. However, the goal of judicial economy does not alleviate the necessity of establishing “cause” for allowing late joinder. Id.

Order affirmed.

      . Appellant raises for the first time on appeal the contention that the trial court was required pursuant to Pa.R.C.P. 1028 to take further evidence before making a decision as to “cause” for late joinder. This issue has not been preserved for appellate review.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    525 A.2d 405
    Denis J. KOLESKI, Appellee, v. Katherine D. PARK, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 10, 1987.
    Filed May 4, 1987.

      Martin J. King, New Hope, for appellant.
    Charles J. Conturso, Morrisville, for appellee.
    Before BECK, HESTER and ROBERTS, JJ.
   BECK, Judge:

This case requires us to consider under what circumstances a court may order a party to submit to the extraction of a second blood sample for the purpose of performing additional paternity testing.

We find that constitutional rights implicated in the extraction of blood samples and resolution of questions of paternity require that the moving party show by a preponderance of the evidence that the results of the first tests were inaccurate before a second blood extraction can be ordered. This showing shall be made at a hearing before the trial court. We, therefore, reverse the trial court’s order that appellant submit to the taking of a second blood sample and remand for proceedings consistent with this opinion.

On December 19, 1984, appellant Kathy Park gave birth to a daughter. Thereafter, appellee Denis Koleski instituted this action for partial custody, claiming to be the father of the child. Appellant filed an answer denying the alleged paternity and suggested blood testing to disprove appellee’s paternity. On July 17, 1985, the parties entered into a stipulation to submit to the extraction of blood samples for red blood cell antigen and human leukocyte antigen (HLA) typing and grouping. The results of these tests excluded appellee Denis Koleski as the father of appellant’s child.

Appellee filed a Motion for Appointment of Experts to Perform Independent Blood Tests on May 21, 1986. He claimed that the prior tests were inaccurate based on his interpretation of the lab report as indicating (1) that the blood was held seven weeks prior to the performance of the tests, and (2) that he did not possess paternal obligatory genes in the range of AW 24-BW 16, when in fact he did possess genes A-1, W24. Appellee offered no evidence, expert or otherwise, in support of his assertions.

The trial court ordered Kathy Park to submit to a second extraction of blood at Metpath Labs in Trenton, New Jersey, for tests to be performed by that lab. The order also stated that such tests would be admissible into evidence for or against any party to the action without expert testimony and without challenge to the chain of custody of the blood samples. Appellant filed a motion for a protective order, which was denied. This timely appeal followed.

Appellant raises the following issues on appeal: (1) whether the trial court violated her rights under the Fourth Amendment of the Constitution of the United States, and Article I, Section 8 of the Constitution of Pennsylvania, by ordering a second blood extraction without showing that the tests done on the first blood sample were inaccurate; (2) whether the trial court violated her rights under the Fourteenth Amendment of the Constitution of the United States in ordering a second blood extraction without affording her a hearing or some other proceeding in which to present her objections; (3) whether the trial court erred in ordering the second blood extraction and tests thereupon to take place at an out-of-state testing agency, to be admissible without expert testimony or challenge to the chain of custody; and (4) whether the trial judge should be required to recuse on remand of the matter to it.

We agree with appellant that the trial court erred in failing to hold a hearing on the alleged inaccuracy of the first test results and in ordering the second tests to be done at an out-of-state lab. We, therefore, reverse the order of the trial court and remand for proceedings consistent with this opinion. We do not find, however, that appellant has shown cause for us to direct assignment of this matter to a different judge on remand.

Our starting point in resolving these issues is the stipulation entered into by the parties. Whatever the parties’ rights to blood testing may be under statute or case law, they are free to waive them by stipulation, so long as the stipulation does not affect the court’s jurisdiction or due order of business. Tyler v. King, 344 Pa.Super. 78, 496 A.2d 16 (1985).

Stipulations are interpreted according to the intent of the parties. Longenecker v. Matway, 315 Pa.Super. 411, 416, 462 A.2d 261, 263 (1983). We conclude upon examination of the stipulation that the parties did not intend to bind themselves, one way or the other, as to a second blood extraction. The agreement very specifically sets forth a date, place, and time for the extraction of blood, and calls for appellee to produce one check in payment of the testing. It provides that the results of the tests shall be admissible into evidence, without expert testimony or challenge to the chain of custody of the samples, but does not indicate that these results will be conclusive. It neither requires nor forbids a second blood extraction.

We next turn to the Uniform Act on Blood Tests to Determine Paternity (“Act”) to determine what rights to further blood testing it might provide for appellee. Section 6133 of the Act provides:

In any matter subject to this subchapter in which paternity, parentage or identity of a child is a relevant fact, the court upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved may, or upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to such tests, the court may resolve the question of paternity, parentage or identity of a child against such party, or enforce its order if the rights of others and the interests of justice so require.

We find the Act to be inconclusive on the question of further blood testing. The language of Section 6133 is ambiguous as to the number of blood extractions and blood tests that may be ordered from each party.

In any event, regardless of the literal meaning of the section, we are bound to give it a construction that will preserve its constitutional validity, a result we must assume the legislature intended. Com. Dept. of Transportation v. Emory, 91 Pa.Commw. 580, 498 A.2d 26 (1985). To preserve Section 6133 from conflict with the Fourth Amendment, we construe it as requiring a showing that the first blood test results were inaccurate before a second blood extraction can be ordered.

The Fourth Amendment to the Constitution of the United States expressly provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ...” (Emphasis added). Compulsory administration of a blood test falls within the scope of the Amendment. Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966). The Fourth Amendment’s “proper function is to constrain, not against all intrusions [into the body for blood] as such, but against intrusions which are not justified in the circumstances.” Id., at 768, 86 S.Ct. at 1834.

We determine what is justified under the circumstances by examining the values served by making a second blood test broadly or narrowly available. An outright prohibition against a second blood extraction here would promote the appellant mother’s right to her bodily integrity. However, it could also destroy the appellee putative father’s ability to prove his claim that he is indeed the father of the child. The United States Supreme Court in Lassiter v. Dept. of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), found “plain beyond the need for multiple citation that a parent’s desire for and right to ‘the companionship, care, custody and management of his or her children’ ” is an important and legally protectible interest. Id. at 27, 101 S.Ct. at 2159, quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972).

Appellant’s child also has a “compelling interest in the accuracy of such a determination [of paternity].” Little v. Streater, 452 U.S. 1, 13, 101 S.Ct. 2202, 2209, 68 L.Ed.2d 627 (1981). First and foremost is her interest in the care and companionship of her father. Additionally, an adjudication of paternity would give her rights to her father’s estate, workmen's compensation benefits, and financial support.

We are not, however, blind to the possibility of harrassment where one party could impose multiple blood testing upon the other. We recognize that paternity actions create emotionally-charged circumstances. We therefore limit the right to subsequent blood extraction to those situations in which the proponent of further testing shows by a preponderance of the evidence that the initial test was defective and a subsequent test is needed for an accurate determination of paternity.

As the accuracy of different tests and combinations of tests varies, so too will the difficulty of making the required showing. If the tests performed on the first blood sample are of minimal accuracy, a motion for further blood extraction and testing should be readily granted. Where the tests conducted on the first sample are scientifically believed to yield a highly accurate result, however, the moving party will have to demonstrate that the tests were conducted or interpreted improperly before further blood extraction will be ordered.

We turn now to the question of by what procedure the determination that the first blood tests were inaccurate shall be made: whether a hearing is required, or whether some other procedure, such as affidavits, will suffice. Appellant argues that the due process of law guaranteed her by the Fourteenth Amendment to the Constitution of the United States requires that the trial court afford her a hearing to determine whether the first tests were defective before ordering a second blood extraction. We agree.

The Fourteenth Amendment provides in part: “No State shall ... deprive any person of life, liberty, or property, without due process of law ...” Extraction of blood from the body is a deprivation subject to the constraints of the Fourteenth Amendment. See Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957).

Due process is a flexible concept requiring such procedural safeguards as a particular situation demands to ensure fundamental fairness to a potentially aggrieved litigant. Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2599-2600, 33 L.Ed.2d 484 (1972). The factors to be weighed in determining whether a proposed procedural safeguard, such as a hearing, is required by due process were first set forth in Matthews v. Eldridge, 424 U.S. 319, 334-335, 96 S.Ct. 893, 902-903, 47 L.Ed.2d 18 (1976):

[FJirst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

The private interests involved in this action are substantial. Appellant has an interest in avoiding an unnecessary-blood extraction. Everyone involved has an interest in the accuracy of the blood test results, which may be the basis for the creation of a parent-child relationship between appellee and appellant's child.

Secondly, a hearing at which expert testimony is presented, with an opportunity for cross-examination, is the procedure most likely to result in a correct determination of the accuracy of the first set of tests. Written submissions of the parties would not permit the trial court to make the assessments of credibility which may be necessary in the face of conflicting expert testimony.

This court in Tyler v. King, 344 Pa.Super. 78, 86, 496 A.2d 16, 20 (1985) acknowledged the value of expert testimony, which is required by Section 6134 of the Act for admissibility of blood test evidence absent stipulation of the parties to the contrary:

Where the expert witness performed the test or experiment at issue, as is the case under Section 6134, calling him to testify allows a party to inquire into the circumstances surrounding the test, the factors influencing its results, the variables which could affect the result, and the procedures used in recording and preserving the result.

Finally, we note that the state itself has an interest that decisions involving the welfare of children be accurate and just. Lassiter v. Dept. of Social Services, 452 U.S. at 27, 101 S.Ct. at 2159-2160. A hearing on the accuracy of first blood tests will advance that interest, while imposing only a minimal administrative burden on the trial court. The hearing itself should be brief, involving as it does no issues other than the validity of the tests. This proceeding may actually further judicial economy in contributing to the trial court’s understanding of the scientific data involved in blood tests and promoting settlement between the parties.

In sum, we reiterate our belief, first expressed in Corra v. Coll, 305 Pa.Super. 179, 193-194, 451 A.2d 480, 488 (1982), that “[t]here is no situation of more monumental importance, or more worthy of due process protection, than the creation of a parent-child relationship.” We find that a hearing is the best forum for making the showing that the first blood tests were inaccurate. Requiring this showing before a second blood extraction will be ordered protects the parties’ Fourth Amendment rights and restricts the potential for harassment, but does not prevent a party from obtaining further blood testing where necessary to an accurate determination of paternity.

Appellant claims the trial court erred in ordering that the second blood extraction take place at an out-of-state lab, and that the results would be deemed admissible without expert testimony or challenge to the chain of custody. We agree.

Absent agreement to the contrary, a party has full right to challenge the admissibility of blood tests results. Tyler v. King, 344 Pa.Super. at 88, 496 A.2d at 21. As we have concluded, appellant’s stipulation as to the admissibility of blood test results applied only to the first blood extraction.

If further testing is ordered on remand, such testing should be performed at a facility within the jurisdiction of the court. Appellant may need to compel the testimony of the person performing the tests in further proceedings on this matter. Performance of the tests at a lab within the jurisdiction of the court protects her ability to do so.

Appellant claims that the trial judge should be required to recuse on remand of this matter to him. We disagree. Assignment to a different judge on remand will be made only when the judge’s actions below demonstrated a degree of bias, capricious disbelief, or prejudgment such as to raise doubts as to his or her ability to preside objectively and fairly upon remand. Frasch v. Frasch, 348 Pa.Super. 149, 501 A.2d 691 (1985). While we disagree with the trial court’s legal conclusions here, it is clear from the record that his consideration of the matter was fair and untainted by bias or prejudice toward appellant.

Reversed and remanded for proceedings consistent with this opinion.

      . 42 Pa.Cons.Stat.Ann. §§ 6131-6137 (Purdon 1982).

      . Appellant argues that the Act does not apply to the instant case, as it was legislatively intended to be used only by mothers trying to obtain, rather than to prevent, the adjudication of a putative father's paternity. We disagree. Section 6133 applies to any civil matter (and some criminal ones) "in which paternity, parentage or identity of a child is a relevant fact." See also In re Adoption of Young, 469 Pa. 141, 364 A.2d 1307 (1976); In re Mengel, 287 Pa.Super. 186, 429 A.2d 1162 (1981) (Spaeth, J., concurring).

      . We note that the constitutionality of the Act as applied to a first blood extraction and tests conducted on that blood is not before us. Our decision here applies only to subsequent blood extractions and tests under the Act.

      . Art. I, Sec. 8 of the Constitution of Pennsylvania is essentially the same: "The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures.”

      . Pa.Stat.Ann., tit. 20, §§ 2107(c), 2514(8), 3538, 6114(5) (Purdon 1975 and Supp.1986).

      . Pa.Stat.Ann., tit. 77, § 562 (Purdon Supp.1986).

      . Pa.Stat.Ann., tit. 48, § 167(b)(3) (Purdon Supp.1986).

      . "Each blood group yields a particular probability of exclusion from paternity....’ [T]he cumulative chance of exclusion ... is the sum of the exclusions in [the blood groups tested] minus their product ...’ Lee, [Current Status of Paternity Testing, 9 Fam.L.Q. 615 (1975) ] at 628-29. Thus, the cumulative probability of exclusion varies with the type and number of blood groups tested.” Hummel v. Smith, 301 Pa.Super. 276, 286, 447 A.2d 965, 970, n. 3 (1982) (Beck, J., concurring).

      . See, e.g., Com. v. Potts, 220 Pa.Super. 152, 155, 286 A.2d 663, 665 (1971) (second blood test granted on request since only blood tests available at that time were known to be "scientifically unreliable.")

      . By itself the HLA system is 76% accurate in excluding a non-father. Lee, supra, at 627. More sophisticated testing, using seven blood groups involving 21 HLA genetic markets — MNS; D,C,Cw,c; E,e; AcP (A,B,C): A1,A2,B,O; Glma,Glmx, G3mb; Jka,Jkb (Kidd) — yields a cumulative probability of exclusion of 95.5%. Ibid.

      . The need for expert testimony is illustrated by the facts of this case. Appellee here alleges that the first tests were inaccurate based on (1) the lapse of time between the taking of the blood on October 21, 1985, and the date of the report, January 16, 1986, and (2) the statement in the lab report that he did not possess paternal obligatory genes in the range of AW 24-BW 16, when in fact he did possess the gene A-1, W24.
      The testimony of an expert at the accuracy hearing may show that the performance of the test itself takes seven weeks, or that holding the blood for a certain period of time before conducting the tests does not affect the accuracy of genetic analysis of the blood. (We note that HLA testing is actually tissue typing, which may involve weeks of tissue culture growth before the genetic analysis can be done.)
      As to the second claim of error, we note that BW16 appears to be a paternal obligatory gene. While appellee may possess the gene AW24, the report states his BW values as B-W21, W35. Only an expert can tell us whether appellee's possessing the AW24 gene is sufficient, or whether to be the child's true father he must also have the gene BW16


author: DEL SOLE, Judge:

text:
    525 A.2d 411
    SELECTED RISKS INSURANCE COMPANY, Appellant, v. Richard L. THOMPSON.
    Superior Court of Pennsylvania.
    Argued Oct. 6, 1986.
    Filed April 27, 1987.
    Petition for Allowance of Appeal Granted Sept. 17, 1987.

      Timothy J. Burdette, Pittsburgh, for appellant.
    Timothy P. O’Brien, Pittsburgh, for appellee.
    Before DEL SOLE, KELLY and POPOVICH, JJ.
   DEL SOLE, Judge:

This is an appeal from the Judgment resulting from the entry of the trial court Order denying Appellant’s petition to Modify, Correct, or Vacate an Award of Arbitrators, and granting Appellee’s petition to Confirm the Arbitration Award.

By its brief, Appellant contends that the trial court erred in refusing to apply the “contrary to law” standard of review set forth in § 7302(d)(2) of the Uniform Arbitration Act (the Act), 42 Pa.C.S.A. § 7301, et seq. Section 7302(d)(2) provides that, under limited circumstances, an award may be modified or corrected where the award is contrary to law, and is such that, had it been a verdict of a jury, the court would have entered a different judgment, or judgment N.O.V. However, the trial court declined to utilize this standard and held that none of the “limited circumstances” calling for its application was present. See 42 Pa.C.S.A. 7302(d)(2).

The trial court instead opined that the appropriate scope of review was that which is found in § 7315(a) of the Act. Under this standard, an award may be modified only where:

(1) there was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;
(2) the arbitrators awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
(3) the award is deficient in a matter of form, not affecting the merits of the controversy.

After examining the arguments contained in Appellant’s petition, the trial court concluded that they raised questions of law. Consequently, the trial court declined to address their merits, inasmuch as the scope of review, as set forth in § 7315, restricted that court from resolving legal issues.

We have examined the terms of Appellant’s Uninsured Motorist Endorsement and hold that the “contrary to law” standard of review should have been applied. Accordingly, the issues charging mistakes of law allegedly committed by the arbitration panel were properly raised before the trial court.

The Endorsement specifically provided that “[arbitration shall be conducted in accordance with the Pennsylvania Arbitration Act of 1927.” Although the 1927 Act was repealed and replaced by the Act of 1980, our present legislation contains provisions which govern agreements to arbitrate under the prior Act. Section 501(b) of the 1980 Act provides as follows:

[t]he provisions of 42 Pa.C.S. 7302(d)(2) (relating to special application) shall be applicable to any nonjudicial arbitration pursuant to:
(2) An agreement heretofore or hereafter made which expressly provides for arbitration pursuant to the former provisions of the Act of April 25, 1927 (P.L. 381, No. 248), relating to statutory arbitration.

Act of 1980, Oct. 5, P.L. 693, No. 142. It is apparent to us that the instant Endorsement falls within the purview of § 501(b)(2), as it relates to the standard enunciated in § 7302(d)(2). Therefore, we hold that the “contrary to law” scope of review should have been applied by the trial court. For this reason, we shall address the questions of law presented by Appellant in this appeal. See Martin v. State Automobile Ins. Association, 344 Pa.Super. 531, 496 A.2d 1233 (1985), and Ragin v. Royal Globe Insurance Compa ny, 315 Pa.Super. 179, 461 A.2d 856 (1983) for discussions on § 501(b) of the 1980 Act.

Appellant argues that Appellee should not have been permitted to stack the uninsured motorist coverage provided in the policy issued to the New Galilee Voluntary Fire Department. Appellant draws support for this argument from our Supreme Court’s discussion on stacking in Utica Mutual Insurance Company v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984). In that bellwether decision, the Court held that the ability of a claimant to stack depends upon his/her status as a specifically intended beneficiary under the policy. Id. at 504 Pa. at 340, 473 A.2d at 1012. The Court delineated three classes of insureds for stacking purposes:

Class One — the named insured and any designated insured;
Class Two — any other person while occupying an insured’s vehicle; and,
Class Three — any person with respect to damages he is entitled to recover because of bodily injury to which this insurance applies sustained by a Class One or Class Two insured.

Id. at 504 Pa. at 338, 473 A.2d at 1010. The Utica court concluded that stacking of uninsured motorists coverage would extend to persons found in the Class One category. Id. at 504 Pa. at 340, 473 A.2d at 1011.

Appellant contends that, in the case at bar, stacking was improper inasmuch as Appellee was not a “named” or “designated” insured under the policy. Rather, it is argued that the “New Galilee Voluntary Fire Company”, an entity, was the Class One insured for stacking purposes. Appellant relies upon a recent Commonwealth Court case, Zern v. Muldoon, et al., — Pa.Commw. —, 516 A.2d 799 (1986), in which that court concluded: “the history, structure, organization, and public duty of volunteer fire companies distinguish them as an entity from any other organization in existence in this Commonwealth today.” Id. at 516 A.2d at 804. However, this statement must be read in light of the entire opinion. The Zern court was confronted with the narrow issue of whether volunteer fire departments are entitled to immunity for damages arising from their actions. After embarking upon a lengthy historical profile of the legislative treatment of voluntary fire departments in this Commonwealth, the court concluded that these groups occupy a unique position within the framework of publically-assisted organizations. The fact that the Commonwealth Court chose to use the phrase “distinguish them as an entity” does not evidence support by that court of Appellant’s theory that New Galilee should be treated as a distinct entity for insurance stacking purposes.

We have examined Pennsylvania case law which discusses unincorporated associations, such as New Galilee, and conclude that they are not recognized as entities at law, and have no existence separate and apart from that of their individual members. DeVillars v. Hessler, 363 Pa. 498, 502, 70 A.2d 333, 335 (1950). See also P.L.E., Associations and Clubs, § 1. Therefore, we find that Appellee, as well as the other members of New Galilee, were “Class One” insureds within the meaning of Utica, supra. Likewise, we agree with the arbitration panel’s decision to permit stacking of uninsured motorist coverage under the facts of this case.

Appellant next argues that the arbitrators’ award was unlawful because the panel refused to grant Appellant a set-off in the amount of worker’s compensation benefits paid to Appellee by another insurance carrier. Appellant draws our attention to the Uninsured Motorist Endorsement which states:

[a]ny amount payable under this insurance shall be reduced by:
a. All sums paid or payable under any workers compensation, disability benefits or similar law____

(Reproduced Record, p. 20a).

We have examined the Uninsured Motorist Act and find that it does not contain a provision under which an insurer may have a dollar-for-dollar set-off of no-fault coverage against benefits received from other sources. Likewise, in Boris v. Liberty Mutual Insurance Co., 356 Pa.Super. 532, 538, 515 A.2d 21, 25 (1986), this Court recently opined that the Worker’s Compensation Act does not prohibit an injured person from seeking uninsured motorist benefits in addition to worker’s compensation payments already received under that Act. Indeed, if our legislature had intended to allow set-off of payments made under the two statutes, it would have expressly provided so. Absent a showing of such intent by the legislature, we decline to enforce an insurance contract provision not manifested by statute. See also Tucci v. State Farm Insurance Co., 503 Pa. 447, 454-455, 469 A.2d 1025, 1029 (1983), citing Carnevale v. Sentry, A Mutual Company, 469 F.Supp. 681 (W.D.Pa.1979) (court refused to enforce a set-off provision in plaintiff’s no-fault policy deducting no-fault payments for hospital and medical treatment from uninsured motorist coverage for noneconomic loss).

Finally, Appellant argues that there exists in Pennsylvania no law under which the panel could impose a duty upon an insurance carrier to prorate the coverage where one claimant has already settled with the insurer. Appellant, therefore, ask that the $7,000.00 settlement paid to Kenneth Price, who was also injured in the accident, be deducted from the amount of coverage available under the uninsured motorist policy.

The record shows that after Appellee and Price were injured, both men notified Appellant of their intent to make claims for their injuries. Price’s counsel objected to Appellant’s proposal that the two men’s claims be heard by the same arbitration board. Prior to any hearing on Price’s claim, Appellant settled that claim for the sum $7,000.00. After the arbitration panel heard Appellee’s claim, it decided that the value of his claim was $200,000.00. Price’s already-settled claim was found to be worth $7,000.00, the settlement amount. Therefore, the total value of the claims arising from the single accident was $207,000.00. However, the panel also determined that the coverage available under the policy amounted only to $180,000.00. It was then decided that Appellant was under the duty to “make an equitable apportionment” between Price and Appellee of the available coverage, based upon the value of their individual claims. It was concluded that Price’s pro rata share of the coverage was 3.3% or $5,940.00, and that Thompson’s claim was 96.7% or $174,060.00.

We find that proration was inappropriate in the instant case. Absent a finding of bad faith or collusion committed by the parties to the settlement, the arbitration panel was without authority to affect such an agreement. Therefore, Appellant should have received a $7,000.00 credit for the settlement paid to Price, irrespective of the fact that the insurance coverage, available to Appellee, would have been reduced by that amount. We point out, however, that our decision on this matter is confined to the disbursement of benefits according to uninsured motorist policies.

Case remanded for recalculation of arbitration award in accordance with this Opinion. Jurisdiction of this Court relinquished.

KELLY, J. concurs in the result.

      . We recognize that recently in Miller v. Royal Insurance Co., 354 Pa.Super. 20, 510 A.2d 1257 (1986), this Court opined that uninsured motorist coverage could not be stacked under corporate fleet policies. Id. at 354 Pa.Superior Ct. at 22, 510 A.2d at 1259. Appellant’s "Business Auto Polic/’ is, in essence, a fleet policy; however, the factual dissimilarities between Miller and the instant case render our holding in Miller inapplicable. In Miller, the appellee was an employee of a corporation who was not a Class One "insured” under the policy. By comparison, Appellant, in this case, is a member of an unincorporated association who, as discussed supra, was an "insured” according to the terms of the policy. The record shows that Appellant was aware that the insurance contract would not be a standard fleet policy. This is evidenced by the fact that the fire company was characterized as an “Other”, rather than as a corporation, or partnership. Given the unique factual circumstances of this case, we are convinced that stacking was within the reasonable expectations of both parties.


author: JOHNSON, Judge:

text:
    525 A.2d 414
    MICHAEL T.L. v. MARILYN J.L., Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 18, 1986.
    Filed April 27, 1987.

      Timothy A. Finn, Beaver, for appellant.
    J. Lauson Cashdollar, Beaver, for appellee.
    Before BROSKY, DEL SOLE and JOHNSON, JJ.
   JOHNSON, Judge:

This is an appeal by the mother from the following order of the Court of Common Pleas of Beaver County, dated June 9, 1986 which reads in pertinent part:

1. Custody of minor son, is hereby awarded to natural father as of noon on June 15, 1986.
A. Upon assuming custody of minor son, [ ...], under the terms of this Order, natural father, [ ...], and the boy shall reside with the paternal grandmother, [ ...], at her residence in Freedom, Pennsylvania, or at such other residence to which she may move throughout the balance of this calendar year and the first seven (7) months of 1987.

This case presents not only the difficult question of which parent should have the primary custody of the parties’ minor child, but also the question of whether de facto custody of a child may be awarded to a non-party to the custody action. For the reasons set forth in our opinion, we hold such a determination by the court below to be error.

The parties were married March 23, 1979 and a son was born to them on October 12,1979. After several temporary periods of living apart, the parties finally separated in November 1983. The father filed an action in divorce against his wife in April 1984; no decree was issued and the parties are still husband and wife. In June 1984, the father filed a petition for custody of the child averring that his son had resided with both parents until November 1983 and with the mother alone since that date. On July 24, 1984 after a conference before the Beaver County Child Custody Officer, a recommendation was issued to award custody to the mother with a partial custody award to the father. A court order to this effect was issued and docketed August 1,1984 to be effective August 7,1984. The mother retained custody of the child until, following evidentiary hearings, the court below issued an order granting custody to the father, provided that he reside with his own mother, the child’s paternal grandmother, with partial custody to appellant. This appeal followed.

In custody cases the paramount concern of the court is the best interest of the child, including the child’s physical, intellectual, emotional and spiritual well-being. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977).

This court’s scope of review in custody cases has been stated by the Pennsylvania Supreme Court in Spriggs v. Carson, supra, where Mr. Justice Nix, now Chief Justice, stated for a plurality of the court:

(O)ur law has long recognized that the scope of review of an appellate court reviewing a custody matter is of the broadest type ... Thus, an appellate court is not bound by deductions or inferences made by a trial court from the facts found; ... nor must a reviewing court accept a finding which has no competent evidence to support it ...

470 Pa. at 295, 368 A.2d at 687 (citations omitted).

The Pennsylvania Supreme Court more recently reiterated this standard in Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800, (1984) (plurality opinion):

Thus an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support the trial court’s factual conclusions, but may not interfere with those conclusions unless they are unreasonable in light of the trial court’s factual findings ... and, thus, represent a gross abuse of discretion ... (citations and footnote omitted; emphasis in original).

Id., 505 Pa. at 237, 478 A.2d at 806.

We must first ascertain the hearing judge’s findings of fact and whether those findings are supported by competent evidence. Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976). We must then determine whether the factual findings that are supported by the evidence in the record support the hearing court’s ultimate conclusions. Commonwealth ex rel. Robinson v. Robinson, supra.

In this case, the hearing court based its decision to grant custody to the father on the mother’s sexual promiscuity and immoral conduct. Several years ago the courts in Pennsylvania, in making custody awards, were confronted with the dilemma of whether to permit greater tolerance of parents’ nonmarital sexual relationships with persons of the opposite sex. The courts concluded that such nonmarital sexual relationships were relevant only if they could be shown to have an adverse effect on the child. Commonwealth ex rel. Holschuh v. Holland-Moritz, 448 Pa. 437, 292 A.2d 380 (1972); Commonwealth ex rel. Myers v. Myers, supra; Brooks v. Brooks, 319 Pa.Super. 268, 466 A.2d 152 (1983). Since no adverse effect was shown in this case, we must reverse.

At the outset, prior to the existence of a custody order, the parties who are parents stand on an equal footing and the only burden carried by either of them is to establish what is in the best interest of the child. In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977); Spriggs v. Carson, supra.

To this end we will summarize the findings of fact as determined by the hearing court (Opinion 6/9/86, at 2-4).

The child resided continually with the mother from birth. In July 1984, the mother had an abortion. She testified that her pregnancy in July 1984 resulted from sexual relations with her husband which frequently occurred subsequent to the parties’ final separation in November 1983. These sexual encounters continued through May 1985. At the time of the final hearing, the mother was pregnant and was intending to carry the child to full term in August 1986. (The appellee herein is not the natural father responsible for the 1986 pregnancy.)

The lower court found that the mother had been sexually active with a number of men since the parties’ separation. She maintained a clean house and prepared daily meals for her son. The mother was primarily responsible for the child’s discipline and instruction. She spent considerable time with her son and did not leave him with babysitters for unreasonable amounts of time. The mother is presently seeing a man who is 65 years of age and who resides in Pittsburgh. The court also found that the mother made marijuana cigarettes and smoked them in the presence of the child.

The lower court found the father had been through a 28-day in-patient drug and alcohol rehabilitation program in February 1985 and that he continued his drug use through June 1985 and his alcohol use through July 1985. The father resides with a current girlfriend in her apartment. Father owes over $2,000 in support arrearages to mother for his son. Father testified that if the lower court awarded him custody, he would move in with the paternal grandmother and she thereafter would have primary responsibility for the child’s day-to-day care. After a long period of unemployment, father began working on January 8, 1986, at a local K-Mart.

The court found that since the paternal grandmother lived four blocks away from the mother, the child would remain in the same school where he attended kindergarten if he resided with his paternal grandmother.

The basis of the hearing judge’s determination to change custody to the father on condition that he reside with the paternal grandmother may be distilled from the judge’s commentary as follows:

... [T]he conduct of both parents has been deplorable.
The life of both Respondent/Mother and Petitioner/Father is presently in a state of flux. Even though separated since November 1983, they are still not divorced. In January 1986, Petitioner/Father obtained employment for the first time in several years. Additionally, he now appears to be emotionally involved with a [woman], who is currently separated from her husband but not divorced. Since separating from Petitioner in November 1983, Respondent/Mother has been sexually promiscuous; is currently pregnant and will give birth to her second child in August 1986 which, in and of itself, will necessitate considerable time, attention and energy on her part. Respondent/Mother’s present companion is a [man] who is 65 years of age, and resides in the Pittsburgh area. This necessitates traveling to and from Pittsburgh on a regular basis.

(Opinion 6/9/86 at 6).

It is clear that the hearing judge placed great emphasis on the mother’s sexual history in making an award of custody to the father:

During [the period subsequent to the parties’ separation], Respondent/Mother made herself sexually available to just about every man who socialized with her and used drugs on a regular basis. In July 1984, Respondent/Mother had an abortion and she is presently pregnant and due to deliver in August 1986. Respondent/Mother presently sees a [man], 65 years of age, on a regular basis. He resides in Pittsburgh.

Opinion 6/9/86 at 5.

Combined with the allusions to being busy with a new baby and traveling to and from Pittsburgh, the court apparently deemed mother incapable of adequately caring for her son, despite her success to date. The hearing court indicated:

It is also to be remembered that mere moral lapses are not sufficient to deprive a mother of her child, but where the immoral conduct is flagrant and persistent, it may not be disregarded by the trial court in considering the child’s welfare and best interests. Commonwealth ex rel. Myers v. Myers, 468 Pa. 134 [360 A.2d 587] (1976). Although the issue in a child custody case between contending parents is how will the best interest and welfare of the child be promoted, the trial court, of necessity, must look at past conduct to determine probable future conduct of the contending parents.

Opinion 6/9/86 at 6.

In Myers v. Myers, our supreme court determined:
It is now beyond dispute that the mere fact of a parent’s nonmarital relationship is insufficient to deny him or her custody of the children. Nevertheless, a parent’s non-marital relationships must be given close scrutiny in determining custody matters. The prevailing issue must remain the best interests of the child, and a nonmarital relationship is merely one of the circumstances which the court must consider before reaching its decision.
[U]nless it can be shown that [the mother’s] affair had a direct impact upon the children, or that she had neglected them, her indiscretions are at most factors to be considered.

Myers, 468 Pa. at 138, 360 A.2d at 589 (citations omitted).

In Witmayer v. Witmayer, 320 Pa.Super. 372, 467 A.2d 371 (1983), we held that with regard to a nonmarital relationship, the law does not presume that such a relationship will in and of itself have an adverse impact on a child. The negative effect must be established by competent evidence. Id. Without evidence of a harmful effect on the child, a parent’s past conduct should have little weight in making a custody decision. In Re Custody of Pearce, 310 Pa.Super. 254, 259, 456 A.2d 597, 600 (1983); Bresnock v. Bresnock, 346 Pa.Super. 563, 500 A.2d 91 (1985). In Burr v. Morgart, 339 Pa.Super. 341, 345, 488 A.2d 1155, 1157, (1985) the Superior Court held that the mother’s promiscuity “was not a factor requiring (consideration), for it did not have any adverse effect upon the welfare of the child. This (was) supported evidentially by the record and is a correct application of the law.”

Custody cannot reasonably be granted on the basis of a parent’s unsettled past unless the past behavior has an on-going negative effect on the child’s welfare, Brooks, supra. Moreover, the ability to care for the child is to be determined as of the time of the custody hearing. Bresnock v. Bresnock, supra. In making its decision, the Trial Court must not dwell on matters buried in the past, but must concentrate only on those matters which affect the present and the future of the child. Brooks, supra.

Moreover, the holding in In re Custody of Frank, 283 Pa.Super. 229, 423 A.2d 1229 (1980) emphasizes that the parents’ relative abilities to care for a child should be judged as of the time of the custody hearing rather than as of an earlier time.

With the foregoing general framework for appellate review in hand, a look at the evidence developed at trial and an analysis of the specific issues raised on appeal is appropriate.

At the time the hearing concluded on March 13, 1986, father did not reside with the paternal grandmother, but rather with his girlfriend Jeannie. Jeannie is separated from her husband but not divorced and is the noncustodial parent of her own two children. Jeannie testified that Bobby repeatedly spent overnights at her apartment with the father, and on at least one occasion slept in the same bedroom as she and the father. (N.T. 1/6/86 at 112).

The father acknowledged his inability to care for his son on a day-to-day basis by testifying that if he was granted custody he would reside with his mother, the child’s paternal grandmother, who would assume responsibility for the child.

Mother, on the other hand, had the acknowledged abilities and adequate facilities to continue to nurture the child’s positive development. She was not encumbered by a “live-in” arrangement. She provided a clean, orderly house and always kept her son neat, clean and properly dressed. The child’s in-chambers testimony confirmed that he and his mother resided with no one else. (N.T. 1/6/86 at 19); no one spent the night with his mother (N.T. 1/6/86 at 21); and that he had never seen his mother in bed with a man. (N.T. 1/6/86 at 28).

The mother testified to having an active sex life. She also testified that these activities only took place when her son was with his father on alternate weekends. (N.T. 1/6/86 at 38). The record viewed in its entirety contains countless sexual innuendos by the father and his witnesses concerning the mother’s lifestyle but very little substance regarding the detriment to which the boy was subjected by his mother’s social behavior.

The finding of the hearing court that the mother made and smoked marijuana cigarettes in the presence of the child is not supported by the record. The record merely supports a finding that, during the child’s infancy, and while the parties still were residing together as husband and wife, both of them partook of marijuana smoking in the presence of the infant child (N.T. 2/13/86 at 184). Although there was evidence of continued marijuana use by the mother subsequent to the parties’ separation (N.T. 2/13/86 at 184), there is no evidence to support the finding that it had occurred in the child’s presence and the mother further testified that marijuana smoking is a practice that she has abandoned (N.T. 2/13/86 at 184).

The appellant presented testimony of her extended family regarding her parenting abilities as well as the testimony of a neighbor, M.R., a mother of four, who stated that the child was always neat, clean, well-mannered and polite and appropriately corrected by the mother when necessary. (N.T. 2/13/86 at 139-144). The trial judge found “that the minor son, is a well-mannered, well-behaved boy who loves both his mother and father” (Findings of Fact No. 18), and that he is “a well-mannered, well-behaved, mature for his age, six-year old” (Opinion 6/9/86 at 4).

In this case the trial court reached the following conclusion:

At this time and for the immediate future, the best interest of minor son, [ ...], will not be promoted by awarding physical custody of the boy to Respondent/Mother nor will the boy’s interest be promoted by awarding physical custody of [the child] to Petitioner/Father unless the paternal grandmother, [ ...], is involved with the boy on a regular week-to-week basis by requiring Petitioner/Father to reside with the boy at his mother’s residence for at least a year. Opinion 6/9/86 at 7.

The court had previously determined that the paternal grandmother was to play a prominent role in the day-to-day rearing of the child. Opinion 6/9/86 at 6.

It is well-settled that natural parents in custody-disputes are favored over third parties. In Interest of James John M., 333 Pa.Super. 417, 422-24, 482 A.2d 637, 640 (1984). See also, Commonwealth ex rel Zaffarano v. Genaro, 500 Pa. 256, 455 A.2d 1180 (1983); Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980); Commonwealth ex rel. Miller v. Miller, 329 Pa.Super. 248, 478 A.2d 451 (1984); Cady v. Weber, 317 Pa.Super. 481, 464 A.2d 423 (1983), appeal decided, 322 Pa.Super. 550, 469 A.2d 1128 (1983); Commonwealth ex rel. Strunk v. Cummins, 258 Pa.Super. 326, 392 A.2d 817 (1978); Commonwealth ex rel. Williams v. Miller, 254 Pa.Super. 227, 385 A.2d 992 (1978); In re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977). In the present case, the hearing judge’s determinations were that the mother’s “immoral conduct” precluded placement of the child with her, and father’s inabilities to care for the child day-to-day precluded placement with him. So, the court conditioned the award to the father on the requirement that he abandon his apartment with his girlfriend and move in with the paternal grandmother for no less than fourteen (14) months, thereby assuring that the child would be cared for by the paternal grandmother.

In short, the paternal grandmother was favored over the mother to assume the primary parenting responsibilities. Going for the moment beyond the fact that the paternal grandmother is 65 years old, widowed, is employed and has been treated for twenty (20) years for depression for which she takes the medication Entrafon daily, de facto primary parenting responsibilities have been awarded to a non-party. (T.R. 1/6/86 at 92, 95-96).

We are also forced to comment on the fact that the paternal grandmother was less than candid in her testimony. She stated that she was not employed and had never been employed outside the home. (N.T. 1/6/86 at 92-93). Her son testified that she cleans offices for Burns Security. (N.T. 1/6/86 at 136).

As we held in Moorman v. Tingle, 320 Pa.Super. 348, 467 A.2d 359 (1983) aff'd without opinion, Moorman v. Tingle, 505 Pa. 513, 481 A.2d 854 (1984):

... [T]he parents have a “prima facie right to custody”, which will be forfeited only if “convincing reasons” appear that the child’s best interest will be served by an award to the third party. Thus, even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the parents side. What the judge must do, therefore, is first, hear all evidence relevant to the child’s best interest, and then decide whether the evidence on behalf of the third party is weighty enough to bring the scale up to even, and down on the third party’s side.

Id., 320 Pa.Super. at 352, 467 A.2d at 363. This prima facie directive has not been overcome. It is error which is compounded by the fact that the paternal grandmother is not a party to this action.

The trial court unduly emphasized the mother’s prior conduct in the face of the acknowledged positive and healthy development of the child. The court’s determination based upon its perception of the mother’s “immoral conduct” is a gross abuse of discretion since the evidence does not reveal an adverse effect upon the child.

We have noted in the past:

Everyone develops a code of personal conduct. It does not follow that one is entitled to impose that code on others, or penalize those who do not conform to it. Especially in a child custody case is it important that the hearing judge distinguish between his personal code of conduct, and his determination of what is in the children’s best interest. One may believe, with the utmost conviction, that certain conduct is wrong, and yet it may be that that belief should have little or no part in determining who should have custody of the children. A judge may believe that “lips that touch liquor shall never touch mine,” but he is not for that reason to deny custody to a mother who drinks. A judge may be a devout churchgoer, but he is not for that reason to deny custody to a mother who does not go to church. Or, as here, a judge may believe that it is immoral for an unmarried woman to have sexual intercourse, but he is not for that reason to deny her custody of her children.

Robert H.H. v. May L.H., 293 Pa.Super. 431, 436, 439 A.2d 187, 190 (1981) quoting from Commonwealth ex rel. Grimes v. Grimes, 281 Pa.Super. 484, 498-499, 422 A.2d 572, 579, 580 (1980) (Spaeth, J., Dissenting Opinion).

We have also stated:

____The court must never assume, or infer, that simply

because a nonmarital relationship exists, the impact of the relationship on the children has been harmful. The evidence must show that it has been harmful, and this is so whether the nonmarital relationship ... approaches a de facto marriage or, as in this case, is more transient.

Robert H.H. v. May L.H., supra 293 Pa.Super. at 437, 439 A.2d at 190; accord Haag v. Haag, 336 Pa.Super. 491, 485 A.2d 1189, (1984).

In addition, we are also constrained to note:

First. This child has never lived in a household that did not include his mother. As we held in Hartman v. Hartman, 328 Pa.Super. 154, 476 A.2d 938 (1984):

This court has long recognized that the removal of a young child from his environment is a factor which bears on its emotional well-being____ Therefore, continued residence of children with one parent may be controlling____ Above the age of two, children become strongly attached to those who stand in a parental relationship and who have tenderly cared for them. Bonds of affection may become so strong that to sunder them suddenly may result not only in the child’s unhappiness, but also in its physical injury____ [T]he fact that a stable, long-continued and happy relationship has developed between the child and one of the parents may be of critial importance to the formulation of an appropriate custody decree.

Id., 378 Pa.Super. at 165-6, 476 A.2d at 943 (citations omitted).

Second. This mother was the primary caretaker who tenderly cared for her son with positive results. We have stated that:

When a child receives love, guidance, companionship, and direction from a parent on a consistent basis, a firm foundation is being laid for the child’s future healthy development____ The need for a sense of continuity can, in certain cases, be controlling in the custodial decision.

Gonzalez v. Gonzalez, 337 Pa.Super. 1, 6-7, 486 A.2d 449, 452 (citations omitted). Therefore, our court continued:

(T)he trial court must give positive weight to the parent who has been the primary caregiver____ (emphasis in original.)

Id., 337 Pa.Super. at 8, 486 A.2d at 453 (citation omitted).

We find the hearing judge’s conclusion, that it is in the child’s best interest that custody be awarded to appellee, is not based on competent evidence. We also find that appellee has not proven by a preponderance of the evidence that he is the superior parent. Murphey v. Hatala, 350 Pa.Super. 433, 504 A.2d 917 (1986). Accordingly, we hold that the lower court’s inferences are not supported by the facts; thus, its decision to award custody of the child to appellee constitutes an abuse of discretion. Having determined, on the existing record, that the best interests of the child will be served by returning him to the custody of his mother, we reverse and remand to the trial court.

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

       Indeed, such a rule could lead to absurd results. If both parents were shown to have had nonmarital affairs, both parents could be denied custody even if such a result would be clearly detrimental to the child’s welfare.

      . 41 Physicians Desk Reference 1810 (1987) states:
      Entrafon Tablets are indicated for the treatment of patients with moderate to severe anxiety and/or agitation and depressed mood; patients with depression in whom anxiety and/or agitation are moderate or severe; patients with anxiety and depression associated with chronic physical disease; patients in whom depression and anxiety cannot be clearly differentiated. Schizophrenic patients who have associated symptoms of depression should be considered for therapy with Entrafon.


text:
    525 A.2d 421
    In re Glenn WATT. Appeal of Glenn WATT.
    Superior Court of Pennsylvania.
    Argued Nov. 19, 1986.
    Filed May 4, 1987.

      Dennis A. Alessi, York, for appellant.
    Before WIEAND, MONTEMURO and JOHNSON, JJ.
   JOHNSON, Judge:

On June 27,1972, Appellant Glenn Watt was involuntarily committed to Farview State Hospital following a court determination that Watt was incompetent to stand trial for the murder of an elderly woman friend. After regaining his competence, Watt stood trial on charges of criminal homicide and was acquitted in 1976 because of lack of criminal responsibility. Again, the court found appellant to be severely mentally disabled and committed him to Harrisburg State Hospital by order of October 4, 1976. Watt was subsequently recomitted on six occasions and remains in Harrisburg State Hospital.

After a hearing on December 2, 1985, the Court of Common Pleas of York County ordered the continued commitment of appellant Watt to Harrisburg State Hospital for one year of involuntary treatment pursuant to the Mental Health Procedures Act, Act of July 9, 1976, P.L. 817 No. 143, as amended, 50 P.S. § 7101 et seq. (hereinafter “Act”). Watt now contends that (1) the evidence presented was insufficient to prove that he is severely mentally disabled, (2) the evidence was insufficient to prove that there was any affirmative treatment being given and (3) the evidence was insufficient to show any efforts to secure other less restrictive surroundings. We disagree and therefore affirm the order.

The most recent petition to recommit Watt for up to one year of involuntary treatment was made pursuant to Section 7304 and 7305 of the Act. The court ordered and held an evidentiary hearing on December 2, 1985. The court subsequently entered its order recommitting Watt to Harrisburg State Hospital for a full year. A motion for reconsideration was filed in which Watt argued that the evidence was insufficient to show the need for continued recommitment. The motion was granted and after argument and review of the sufficiency of the evidence, the court entered an order on December 30, 1985, reaffirming the recommitment order. This timely appeal followed.

Initially, we find that Watt argues in his brief that he is being “warehoused” in violation of due process of law under the Fourteenth Amendment. This issue was not presented to the trial court in Watt’s motion for reconsideration, nor is it presented in the statement of questions involved. We therefore find this issue to be waived and will not be discussed further. See Commonwealth v. Stufflet, 322 Pa.Super. 176, 469 A.2d 240 (1983).

In his first argument, Watt contends that the evidence is insufficient to support a finding that he is severely mentally disabled. Specifically, Watt argues the lack of clear and convincing evidence to establish that he poses a clear and present danger to anyone and is in need of continuing involuntary treatment. We find no merit in Watt’s argument.

Under the Act, in order for an individual to be involuntarily recommitted the petitioner must show by clear and convincing evidence that the individual continues to pose a “clear and present danger” of harm to himself or others. 50 P.S. §§ 7304(a) and (f).

When the subject for recommitment has, as in the instant case, been acquitted of a crime because of a lack of criminal responsibility, the Act provides in pertinent part:

If, however, the person has been ... acquitted by reason of lack of criminal responsibility ... clear and present danger to others may be shown by establishing that the conduct charged in the criminal proceeding did occur, and that there is a reasonable probability that such conduct will be repeated.

50 P.S. § 7301(b)(1).

Thus, in the case at bar, it need only be demonstrated that (1) the conduct that led to the criminal proceedings occurred, and (2) that there is a reasonable probability that it will occur again. A petitioner need not prove that an insanity acquittee who had been charged with criminal homicide will actually kill again. It is sufficient to show a reasonable probability that some form of violent conduct will occur. Commonwealth v. Helms, 352 Pa.Super. 65, 506 A.2d 1384 (1986)

Our review of the record clearly justifies the court’s findings. The facts adequately support the finding that Watt is still suffering from paranoid schizophrenia and that Harrisburg State Hospital is the least restrictive setting appropriate for him. Testimony at the recommitment hearing was presented by Watt’s present treating psychiatrist and a second staff psychiatrist from Harrisburg State Hospital. Both doctors testified to the effect that Watt was still psychotic albeit in partial remission.

In addition, the testimony elicited at the hearing revealed the existence of a significant risk that Watt would decompensate back into overt psychotic behavior if he were placed in a setting with less structure than that provided at Harrisburg State Hospital.

Watt contends that he has exhibited no behavior to evidence that he is a clear and present danger to others and presented psychiatric testimony to that effect. The court determined the testimony presented by the petitioner, that Watt is still in need of hospitalization, to be the more credible testimony. As a factfinder, it was clearly within the judge’s purview to determine what testimony he considered credible. Mooreman v. Tingle, 320 Pa.Super. 348, 467 A.2d 359 (1983). Additionally, in the recommitment setting, the statute provides that “it shall not be necessary to show reoccurrence of dangerous conduct either harmful or debilitating, within the past 30 days.” 50 P.S. 7304(a)(2). See also In re S.O., 342 Pa.Super. 215, 492 A.2d 727 (1985) (proof of recurrence of violent behavior is unnecessary for recommitment). Therefore, the lack of recent evidence of actual violent conduct would not negate a finding of clear and present danger and should be viewed in light of the fact that Watt has been confined to a mental hospital since the crime occurred. See Helms, 352 Pa.Super. at 76, 506 A.2d at 1390. We find sufficient evidence in the record to support the court’s finding that recommitment is necessary.

We find that Watt’s second and third issues are also without merit. Watt argues that the evidence is insufficient to prove that he is receiving any affirmative treatment or to show any effort to secure other less restrictive surroundings. The record belies these contentions. Two psychiatrists testified to the effect that, given Watt’s current mental status, the best care is in the highly structured setting provided at Harrisburg State Hospital. In their expert opinion, the psychiatrists testified that in a slightly less restrictive setting without the external structure Harrisburg State Hospital provides, Watt could regress to a point of being overtly psychotic and perhaps exhibit the same behaviors he had prior to his hospitalization. We find sufficient evidence that Watt is in a treatment plan structured around his specific needs and is in the least restrictive setting available to him. Pursuant to the Act, it is not within the province of the court “to specify to the treatment team the adoption of any technique, modality, or drug therapy.” 50 P.S. § 7109.

We therefore find the evidence sufficient to support the finding of the court that recommitment is necessary and Harrisburg State Hospital is the least restrictive setting available.

Order affirmed.


author: WIEAND, Judge:

text:
    525 A.2d 424
    Debra L. SMALL, Appellant, v. COLUMBIA GAS OF PENNSYLVANIA, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 19, 1986.
    Filed May 4, 1987.

      Daniel Fennick, York, for appellant.
    Allen E. Roth, Columbus, for appellee.
    Before WIEAND, MONTEMURO and JOHNSON, JJ.
   WIEAND, Judge:

In this action for an alleged wrongful discharge of a handicapped person, the trial court determined that the discharge had not been in violation of the Human Relations Act and entered judgment in favor of the employer. The employee appealed. We affirm.

In June, 1981, Debra Small was employed by Columbia Gas of Pennsylvania, Inc. as a meter reader in and around Gettysburg. The employment was at will. Approximately five months later, during the early morning hours of November 13, 1981, Small was arrested in the State of Maryland for driving while under the influence of alcohol. Later, on the same day, she spoke with Margaret Burcham, a counselor at the Adams County Drug and Alcohol Center in Maryland, who persuaded Small to enter a residential detoxification facility known as Talbot Place for treatment of that which was perceived to be an alcohol problem. Burcham called Jack Klein, Small’s immediate supervisor at Columbia Gas, informed him that Small had a drinking problem, and asked (1) whether Columbia’s insurance program would cover the cost of residential placement and (2) whether Small would be permitted to take a thirty day leave of absence to attend the detoxification program at Talbot Place. At the time, Columbia Gas had an internal employee alcohol rehabilitation program in place. Klein agreed to get back to Burcham with answers to her questions, and he then consulted with other Columbia officials. They decided to reserve any decision until Monday, November 16, 1981. When Klein relayed this information to Burcham, he was told that Small had decided to undergo treatment regardless of whether her job would be available when the course of treatment was complete. On November 16, Klein was notified that Small had been admitted to Talbot Place and that she would be there for approximately thirty days. On the same day, Klein recommended to the district manager that Small be discharged from Columbia’s employ.

Upon completion of the alcohol program in December, 1981, Small met with Klein regarding continued employment with Columbia. Following this meeting, Small was terminated. Although Columbia had a company policy of progressive corrective discipline, the lesser degrees of discipline were bypassed in Small’s case in favor of the most severe form of discipline, which was discharge.

After pursuing administrative remedies unsuccessfully, Small began a civil action charging Columbia with an unlawful discriminatory practice under the Pennsylvania Human Relations Act, i.e., discharging her even though alcoholism had rendered her a handicapped person. On July 8, 1985, following a non-jury trial, the court entered a verdict in favor of Columbia. Small filed post-trial motions on July 18, 1985, challenging the trial court’s findings of fact and alleging that the trial court had failed to give adequate consideration to evidence that she had been treated differently than employees not perceived as having alcohol related problems. On November 14, 1985, before disposition of the post-trial motions, Small filed a motion to amend her complaint to state a new cause of action, to wit, that in discharging her, Columbia Gas had violated the employment policies set out in its Manual of Corrective Discipline and in its Employee Alcoholism Policy. On April 4, 1986, the trial court entered two orders, one denying Small’s motion for post-trial relief and the other denying the motion to amend the complaint. In consolidated appeals from both orders, Small presents two issues for our consideration: (1) whether the trial court’s finding that Columbia Gas had not terminated Small because of a perceived handicap of alcoholism was error; and (2) whether the trial court abused its discretion by refusing to allow Small to amend her complaint to include a new theory of liability. We find neither error nor abuse of discretion, and, therefore, affirm the decision of the trial court.

Section 5(a) of the Pennsylvania Human Relations Act makes it unlawful for an employer to discharge an employee because of a “non-job related handicap or disability.” A “non-job related handicap or disability” is defined as “any handicap or disability which does not substantially interfere with the ability to perform the essential functions of the employment which a handicapped person ... is engaged in.” Act of December 19, 1974, P.L. 966, No. 318, § 3, 43 P.S. § 954(p). A handicapped or disabled person is defined by the regulations promulgated by the Pennsylvania Human Relations Commission as “a person who has a physical or mental impairment which substantially limits one or more major life activities; has a record of such an impairment; or is regarded as having such an impairment.” 16 Pa. Code § 44.1(i).

Under the Act, the burden of establishing a prima facie case of discrimination is allocated to the plaintiff. General Electric Corp. v. Pennsylvania Human Relations Commission, 469 Pa. 292, 304, 365 A.2d 649, 655-656 (1976), adopting the holding of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Amtrak v. Pennsylvania Human Relations Commission, 70 Pa.Cmwlth. 62, 65, 452 A.2d 301, 303 (1982). Once the plaintiff has established a prima facie case, the burden shifts to the employer to establish that a legitimate, non-discriminatory reason for denial of employment existed. Winn v. Trans World Airlines, Inc., 506 Pa. 138, 157, 484 A.2d 392, 402 (1984); Jenks v. Avco Corp., 340 Pa.Super. 542, 547, 490 A.2d 912, 915 (1985). Thus, Small had the burden of proving that (1) her employer regarded her as having the handicap of alcoholism; (2) this handicap was non-job related; and (3) she was discharged because of that handicap.

The trial court found that appellant had not been discharged because she was considered to be an alcoholic. Appellant contends that this finding was erroneous. She argues that the following evidence proved her contention: the company’s alcohol rehabilitation program was not explained to her, nor was she given an opportunity to participate in it; the company failed to follow its policy of progressive corrective discipline and instead, fired her immediately; and, she received disparate treatment amounting to discrimination as she and another employee were the only two employees terminated without recourse to the corrective disciplinary system during a five year period. Finally, Small contends that there was no legitimate, nondiscriminatory reason for her termination and that her discharge showed a clear intention on the part of Columbia Gas to discriminate against alcoholics.

We begin our analysis by noting that “findings of fact by a trial judge are accorded the same weight as a jury verdict and our scope of review is limited to examining whether the findings are supported by competent evidence.” Jenks v. Avco Corp., supra, citing Brenna v. Nationwide Insurance Co., 294 Pa.Super. 564, 440 A.2d 609 (1982).

After a careful review of the record in the instant case, we conclude that there was competent evidence to support the trial court’s findings. Klein testified that Small had been discharged because he had determined that she was unsuitable for continued employment as a meter reader with Columbia Gas. He further testified that he did not believe Small was an alcoholic because she never demonstrated any of the signs related to alcoholism, i.e., tardiness, absence, poor work performance, inability to get her work done, or alcohol on her breath. Klein explained that the determination to discharge Small was not based on a perception that she was an alcoholic, but rather on the fact that the incident resulting in her arrest had disclosed a lack of dependability and responsibility, both of which were essential qualities for a meter reader who was entrusted with entering customers’ homes. Because Small’s operation of a motor vehicle while under the influence of alcohol had demonstrated a basic and egregious lack of judgment and responsibility, Klein had determined that she lacked the qualities necessary for a meter reader. Therefore, he had decided to exercise his discretion to bypass the more lenient forms of discipline and to recommend discharge.

The disciplinary procedures of Columbia Gas were discretionary in nature. Paragraph 5 of the internal disciplinary policy indicated:

When the facts indicate a need for serious disciplinary action, the immediate supervisor should thoroughly review the situation with the appropriate level(s) of supervision. This type of consultation should result in a well-considered and readily supportable ruling.

Klein testified that he felt serious action was necessitated because of Small’s criminal conduct and that he acted accordingly. Klein further testified that he was concerned about (1) the possible loss of Small’s driving privileges in Pennsylvania; (2) customer reaction; and, (3) the reactions of other employees if discipline were not adequately enforced.

The trial judge found, based on the evidence presented at trial, that Small was not an alcoholic and that Klein had not regarded her to be an alcoholic when he terminated her. We conclude that the trial court did not err when it found that Small’s discharge did not constitute a violation of the Human Relations Act.

Small also contends that the trial court abused its discretion by refusing to allow her to amend her complaint after a verdict had been entered. At this late stage of the proceedings, she sought to amend the complaint to allege that Columbia Gas had breached two implied contracts when it discharged her in violation of its disciplinary and alcoholism policies. She argues that the right to amend her complaint is supported by the liberal application of Pa.R.C.P. 1033, which provides:

A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause or action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted.

Small claims that the Rule has no time limitation and that amendments may be made after trial as long as the opposing party does not suffer prejudice as a result of the amendment.

The applicable law was stated in Ecksel v. Orleans Construction Co., 360 Pa.Super. 119, 519 A.2d 1021 (1987), as follows:

A party may at any time, either with the consent of the opposing party or by leave of court, amend his or her pleading. See Pa.R.Civ.P. 1033. Permission to allow an amendment of the pleadings is within the sound discretion of the trial court and will not be reversed on appeal absent a showing of abuse of discretion. See Gallo v. Yamaha Motor Corp. U.S.A., 335 Pa. Superior Ct. 311, 313, 484 A.2d 148, 150 (1984). A trial court may allow such an amendment to the pleadings while a motion for judgment on the pleadings is pending, after judgment, or after an award has been made or an appeal has been filed. See Biglan v. Biglan, 330 Pa. Superior Ct. 512, 521, 479 A.2d 1021, 1026 (1984). Such an amendment, however, must not be for a new cause of action or surprise or prejudice the opposing party. See Robinson Protective Alarm Co. v. Bolger & Picker, 337 Pa. Superior Ct. 503, 514, 487 A.2d 373, 378 (1985); Cingota v. Milliken, 286 Pa. Superior Ct. 117, 121, 428 A.2d 600, 602 (1981).

Id., 360 Pa.Superior Ct. at 131, 519 A.2d at 1027. See: West Penn Power Co. v. Bethlehem Steel Corp., 236 Pa.Super. 413, 433-434, 348 A.2d 144, 155-156 (1975); 3 Std.Pa. Prac.2d § 37, at 713-715.

In the instant case, the trial court found that to allow Small to amend her complaint to state a new cause of action after trial had been concluded and a verdict entered against her would require additional discovery, an additional hearing, and further briefing and would result in substantial prejudice to Columbia Gas. Therefore, the trial court denied the petition to amend. We perceive no abuse of . discretion.

Judgment affirmed.

      . Act of October 27, 1955, P.L. No. 744, § 1, 43 P.S. § 951 et seq., as amended.

      . Act of October 27, 1955, P.L. No. 744, § 5(a), as amended, 43 P.S. § 955(a).

      . Section 44.1(H) defines the operative terms used to classify one as a handicapped or disabled person as follows:
      (A) 'physical or mental impairment’ means a physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin and endocrine or a mental or psychological disorder, such as mental illness, and specific learning disabilities.
      (B) ‘major life activities’ means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
      (C) ‘has a record of such an impairment’ means has a history of or has been misclassified as having a mental or physical impairment that substantially limits one or more major life activities.

        (D) ‘is regarded as having an impairment’ means has a physical or mental impairment that does not substantially limit major life activites [sic] but that is treated by an employer or owner, operator, or provider of a public accommodation as constituting such a limitation; has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or has none of the impairments defined in subparagraph (i)(A) of this paragraph but is treated by an employer or owner, operator or provider of a public accommodation as having such an impairment.

      . In fact, Small’s own testimony failed to disclose that she was an alcoholic. She testified that she drank only on certain occasions and that upon admission to Talbot Place became aware that her circumstances were nothing like those of the other residents.

      . The record discloses that meter readers were given the keys to some customers’ homes and had access to them at times when the customers were not home.

      . It has not been argued and we do not decide whether alcoholism, in the case of a meter reader, is job related.