author: CIRILLO, Judge:

text:
    611 A.2d 737
    In re the Involuntary Termination of Parental Rights of Frank Leroy MATSOCK & Francis Matsock. Appeal of Frank Leroy MATSOCK and Francis Matsock.
    Superior Court of Pennsylvania.
    Argued March 17, 1992.
    Filed June 23, 1992.

      Duane Barnes, Warren, for appellants.
    Thomas J. Bonavita, Asst. Public Defender, Warren, for all the children of Frank and Francis Matsock, participating parties.
    Before ROWLEY, President Judge, and CIRILLO and BROSKY, JJ.
   CIRILLO, Judge:

This is an appeal from a decree entered in the Orphans’ Division of the Court of Common Pleas of Warren County terminating the parental rights of appellant Frank Leroy Matsock. We reverse.

On January 7, 1988, pursuant to the Juvenile Act, the Warren County Department of Children and Youth Services (CYS) petitioned Orphans’ Court for temporary custody of all the Matsock children. The petition stated:

On 1/6/88, a sexual abuse referral[] was received stating that the father, Frank Matsock, had digitally penetrated his daugh[t]er, T., in the vagina causing bleeding. It was confirmed by a physician that the[r]e were lacerations on the child’s vulva. The home conditions were also very dirty and [the] family was using [the] kitchen stove as [a] heating source. The PA State Police took emergency custody of the children.

The petition was granted on the eighth of January, and the requisite informal hearing was scheduled for January 11, 1988. Unfortunately, in the midst of that hearing Frank Matsock suffered a heart attack and was taken to the hospital, where he remained for approximately two weeks. The hearing was necessarily continued.

CYS drew up an amended family service plan, dated March 29, 1988, which indicates that the children were placed in foster homes. The plan also listed seven goals to be achieved as a prelude to reunification of the family. The first goal was to “obtain a sexual offender’s evaluation for Frank, Sr. and to follow up on any and all recommendations made as a result of the evaluation.” The other six goals were:

Frank and Francis need to cooperate and follow the recommendations of CYS.
Francis needs to improve housekeeping skills.
T. needs to be assessed for therapy as a victim of sexual assault.
Parents need to take active role in [biweekly, supervised] visits.
Mother needs to be a supportive advocate for her children, especially T.
Children need to learn appropriate social behavior.

A caseworker reviewed the plan with Francis and Frank Matsock, but as the caseworker noted on the plan, “Parents refused to sign. They stated that they disagreed w/ [with] the mention of a sexual offense by Frank Sr.”

On May 17, 1988, the parents, the attorney for the children, and CYS entered into a Stipulation which the court then entered as an order. The Stipulation provided that Frank would attend sexual offender classes and parenting classes, Francis would attend parenting classes, and “[t]hey will also clean up the house, and that no cats will be in the residence from now on.” The Stipulation also stated that if Frank’s physician reported Frank’s heart condition prevented him from traveling to the classes, CYS would try to arrange to have a sexual abuse counselor meet with Frank at the Matsock home.

Less than four months later, on September 28, 1988, CYS filed a petition for the Involuntary Termination of the

Parental Rights of Frank Matsock, Sr. under section 2511(a)(5) of the Adoption Act, on the grounds that:

The children have been removed from the care of the parent by the Court for a period of at least six months, the conditions which led to the removal or placement of the child[ren] 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[ren] within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the children.

Orphans’ Court conducted a hearing on the petition on November 7, 1988, and determined that Frank had made only minimal effort to achieve the goals in the amended family service plan. Consequently, in the order issued the next day the court stated that it was in the best interest and welfare of the children that Frank’s parental rights be terminated. Nevertheless, the court granted Frank “an additional two months from the date hereof to affirmatively respond to the program of [CYS] and in the event of his failure to do so Respondent’s parental rights shall be terminated.”

On September 15, 1989, CYS filed a second petition to involuntarily terminate Frank Matsock’s parental rights.

On October 24, 1989 the court held an evidentiary hearing on the petition. The trial court opinion indicates that Francis had been cooperative and had attended the parenting classes as mandated by the May 17, 1988 Stipulation. The opinion also states that Frank testified he is “in ill health with a severe heart problem, denies sexual abuse of the child, did not attend all of the sessions of parenting classes or sexual therapy because of ill health, stated he has cleaned up the domicile and that he intends to continue to live with his wife in the family home and was of the opinion he completed the programs.” CYS recommended termination of the father’s parental rights “so that the Agency could concentrate on upgrading the parental skills of the mother.” According to the trial court, the Warren County sexual abuse counselor testified that Frank Matsock “remains in a denial milieu of sexually abusing his child and the therapist recommends [Frank’s] termination from the program because of his lack of cooperation, specifically his refusal to admit sexually abusing the child.”

In its opinion the trial court admitted that there was no precedent for terminating the rights of one parent in order to concentrate social services on the other parent. “We also recognize we cannot force [Frank] to admit his sexual abuse of the child, particularly when there has been no conviction to that allegation.” The court denied the petition to terminate Frank’s parental rights and ordered Frank to attend parenting classes and sexual abuse therapy sessions for an additional six months.

On March 1, 1991, CYS filed a third petition for the involuntary termination of parental rights pursuant to section 2511(a)(5) of the Adoption Act, 23 Pa.C.S.A. § 2511(a)(5). With this petition, however, CYS sought to terminate the parental rights of both Francis and Frank Matsock. Shortly after an evidentiary hearing on April 4, 1991, the court stated in its opinion that:

We are convinced beyond any doubt the agency has met it burden the [sic] parental rights of the father must be terminated. We, however, find insufficient evidence to terminate the rights of the mother. If the mother insisted on living with her husband[] we would indeed find sufficient evidence inasmuch as her steadfast faithfulness to her husband does not exhibit her as an advocate for her children, (emphasis added).

Accordingly, the court entered a Decree Nisi on April 22, 1991 terminating Frank’s parental rights to all of his children, ordering Francis Matsock to establish a “proper” domicile for herself and her four oldest children, forbidding Frank to “have the children in his possession at any time [or to] be in the home of the mother while the children are present,” ordering Francis to continue her parenting classes, and to continue cooperating with CYS. In addition, CYS was authorized to continue monitoring and supervising the mother’s home and care of the children. Custody of the three youngest children was to remain with CYS until “the agency determines the mother has appropriate facilities and is capable of protecting the children.”

Counsel for the parents filed Exceptions to the Decree Nisi, which were argued and subsequently denied. The Final Decree terminating Frank’s parental rights was entered on August 21, 1991. This timely appeal followed.

Frank presents the following questions for our consideration:

1. As the lower court acknowledged in its Final Decree that Frank and Francis were living separate and apart and had created a second household for the return of the children, was there still a clear necessity to terminate the father’s parental rights?
2. Shall the lower court have permitted J.R.M., the fourteen year old daughter of the Matsocks, to testify as to her knowledge of the matter before the court and her views regarding termination.?

In reviewing an involuntary termination of parental rights we must “employ a broad, comprehensive review of the record,” In Re Adoption of T.M.F., 392 Pa.Super. 598, 616, 573 A.2d 1035,1044 (1990) (en banc), allocatur denied, 527 Pa. 634, 592 A.2d 1301 (1990), in order to determine whether the Orphans’ Court decree is supported by competent evidence. Matter of Adoption of G.T.M., 506 Pa. 44, 46, 483 A.2d 1355, 1356 (1984). “Absent an abuse of discretion, an error of law, or insufficient evidentiary support for the findings of the Orphans’ Court, [we] will not reverse a hearing court’s decision to terminate.” In Re Skives, 363 Pa.Super. 225, 228-229, 525 A.2d 801, 802 (1987). An abuse of discretion is “not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record, discretion is abused.” Mielcuszny et ux. v. Rosol, 317 Pa. 91, 93,176 A. 236, 237 (1934).

In In Re T.R., 502 Pa. 165, 465 A.2d 642 (1983), pursuant to Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), our supreme court held that “in all proceedings to involuntarily terminate parental rights, which are not yet final, the petitioner must prove the statutory criteria for that termination by at least clear and convincing evidence.” 502 Pa. at 169, 465 A.2d at 644. (emphasis added). “The standard of clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” Matter of Sylvester, 521 Pa. 300, 304, 555 A.2d 1202, 1203-1204 (1989). While we are bound by the Chancellor’s findings of fact which are supported by the record, In Re Adoption of J.J., 511 Pa. 590, 594, 515 A.2d 883, 885 (1986), we are not bound by the inferences, deductions and legal conclusions the Chancellor draws from those findings. In Re Adoption of J.A.B., 487 Pa. 79, 88, 408 A.2d 1363, 1367 (1979); Matter of M.L.W., 307 Pa.Super. 29, 33, 452 A.2d 1021, 1023 (1982).

We also note that, although only Frank’s parental rights were terminated, Francis joined Frank in this appeal.

“In any context, the complete and irrevocable termination of parental rights is one of the most serious and severe steps a court can take, carrying with it great emotional impact for the parent and the child[ren].” In Re Adoption of Michael J.C., 326 Pa.Super. 143,152, 473 A.2d 1021,1026 (1984) (citation omitted), reversed on other grounds, 506 Pa. 517, 486 A.2d 371 (1984). “Because of the importance placed on the family unit, governmental intrusion into the family, and disruption of the parent-child relationship, is warranted only in exceptional circumstances,” id., and “only upon a showing of clear necessity.” In Interest of C.M.E., 301 Pa.Super. 579, 586, 448 A.2d 59, 63 (1982) (emphasis added). Even when such intrusion is necessary to protect the children, every possible effort must be made to reunite the family. Michael J.C., supra; C.M.E., supra. In addition, “all circumstances must be considered when analyzing a parent’s performance or non-performance of parental obligations. A parent’s performance must be measured in light of ‘what would be expected of an individual in circumstances which the parent under examination finds himself.’ ” In Re Adoption of B.D.S., 494 Pa. 171,179, 431 A.2d 203, 207 (1981) (citations omitted); In Re D.J.Y., 487 Pa. 125, 130, 408 A.2d 1387, 1389-1390 (1979).

In its “Adjudication” filed April 24, 1991, the trial court states that “the underlying reason for the involuntary termination petition initiated on January 6,1988 ... [was] a sexual abuse referral ... The report was confirmed by a physician that there were lacerations on the child’s vulva. The home conditions were also very dirty and the family was using the kitchen stove as a heating source.” From the filing of that first petition, Frank has consistently denied he committed the alleged abuse. Although, as the court noted, a physician found lacerations on the child’s vulva, the court cites no evidence, and there is none in the record, to establish that Frank — and only Frank — could have caused those lacerations. At the hearing on April 4, 1991, Francis testified, under oath, that, “/ talked to my daughter and she said nothing happened and I talked to the rest of them and they said nothing happened. I talked to my husband and he said nothing happened, what more can 1 say?” No charges of sexual abuse were ever filed against Frank; he has never been prosecuted for the alleged offense and he has never been convicted by the criminal justice system. Thus, Frank has never been afforded an opportunity to face his accuser(s) or to defend himself against the allegations. Despite this, the allegations form the basis for termination of his parental rights.

As a result of his steadfast denial of the alleged abuse, Frank was terminated from two different court-ordered sexual abuse therapy programs. In the words of the court, “the agency [CYS] was compelled to terminate the sexual abuse therapy as no progress was being made and could not be made as long as [Frank] maintained his denial.” Thus, since he did not complete the therapy programs, Frank is considered an “untreated sexual offender.”

The first therapy program, conducted in Warren County, used the “confrontational approach.” At the April 4, 1991 hearing, Anthony Pedone, a licensed psychologist from the second program, testified:

It’s a legitimate approach. They felt that he had committed the offense for which he was referred and they were confronting his denial and they were more or less demanding that he admit to the offense ...

Francis accompanied her husband to the second therapy program, conducted in Forest County, in which Pedone and a second therapist, Ann Rice, “decided to use a different approach that would be trying to confront the denial but in a more supportive way and in a manner that involved a lot of education [about what constituted sexual abuse].” After six or seven sessions Frank and Francis were terminated from the program because:

They came with the thought that through an evaluation and assessment that we would be able to prove that Frank had not committed offenses. We made it clear to them that individuals come to therapy are either are [sic] guilty or there’s an indication that the offenses had occurred ...

When asked what he meant by “denial,” Pedone explained:

He is denying in fact that a specific instance occurred. We are not talking about a psychological defense mechanism because a lot of times people will deny something may have happened, I just do not remember it, and there is enough evidence t[hat] it probably did happen. Then you try to work and you try to work through that conscious denial or unconscious denial, psychological defense mechanism and Frank is saying that he is denying that the event occurred, that there was any breaking of the law, he is denying the fact that the incident occurred.

Curiously, in a response a few questions later, Pedone stated that in one of the sessions he told Frank:

“We are here to help you, we are here to provide you therapy, we are not here to really crush you or break down your denial because you are entitled to deny the offense.” It really goes to the point where he just absolutely denies that anything occurred.

In its opinion of November 24, 1989, the court admitted that “we cannot force Respondent to admit his sexual abuse of the child, particularly when there has been no conviction to the allegation.” Nonetheless, the court terminated Frank’s parental rights stating that, “here we are confronted with a sexually abusing parent who, despite intensive offender’s counseling, steadfastly refuses any acknowledgment and appropriate treatment for same despite the fact the children were removed from the family ... compounding the case is the mother’s steadfast denial of her husband’s conduct and her allegience to him.” We are deeply troubled by this circular reasoning and the havoc it has wrought on the Matsock family.

Frank has never been adjudicated a sexual offender; the court and the sexual abuse therapists have labeled him an “untreated sexual offender” simply because he refuses to admit he is guilty, as their treatment strategies require him to do. The trial court not only terminated Frank’s parental rights in response to his status as an “untreated sexual offender,” but it also forced Francis to choose between her husband and their children. The court ordered Francis to establish a new household, separate and apart from her husband, which her husband could never enter when any of the children were present. The court plainly stated that if Francis failed to comply with this plan, her parental rights would also be terminated.

In Com. ex rel. Grimes v. Yack, 289 Pa.Super. 495, 433 A.2d 1363 (1981), a panel of this court stated that the term “best interests of a child” is “a legal concept and is not to be defined in psychiatric [or psychological] terms.” Id., 289 Pa.Superior Ct. at 528, 433 A.2d at 1381. The Grimes court continued:

For the law to base itself on [the medical model or treatment strategies], however, would transform the nature of the law as we have conceived of it and would entail great risk ... “The medical model proposes that conditions have discemable causes and scientific cures, and that the nonexperts, the rest of the population, should submit to the authority of these experts. Such legal considerations as procedurally protected rights need not be given major consideration since the experts will presumably only be operating in the interests of those they serve.” J. Robitscher, The Powers of Psychiatry 38 (1980) (footnote omitted).

Id., 289 Pa.Superior Ct. at 529, 433 A.2d at 1381.

Here, CYS and the therapists, unencumbered by procedural or constitutional considerations, made a unilateral determination that Frank sexually abused his daughter. Frank was promptly labeled a sexual offender and ordered to undergo treatment for his “illness,” on pain of losing his children forever. The treatment strategy or “cure” the therapists utilized required Frank to participate by first admitting his guilt. Frank’s refusal to admit his predetermined guilt negated his ability to be “cured,” according to the experts. Therefore, Frank was summarily dismissed from the programs and labeled an “untreated sexual offender.” At no time did CYS, the therapists or the court ever take Frank’s protestations of innocence at face value; his denials of guilt were seen only as intransigence, proof that he was unwilling to actively work toward the reunification of his family.

As a result of his termination from the therapy programs, the trial court determined that the conditions which led to the removal of the children continued to exist, that Frank could not or would not remedy those conditions, and that the services reasonably available to the Matsocks were unlikely to remedy the problem. Therefore, the court determined that the involuntary termination of Frank’s parental rights would best serve the needs and welfare of his children. See 23 Pa.C.S.A. § 2511(a)(5). We cannot agree.

“The custody, care, nurture, and instruction of children resides first in the children’s natural parents, as a constitutionally recognized fundamental right.” In re J.W., 396 Pa.Super. 379, 388, 578 A.2d 952, 957 (1990), citing Lehr v. Robertson, 463 U.S. 248, 257-261, 103 S.Ct. 2985, 2991, 77 L.Ed.2d 614 (1983). “A parent’s right to raise his child is one of the most basic rights of western civilization. It is so much a part of our cultural tradition that our courts have enshrined it with constitutional protection despite its absence from the document’s text.” In Re Adoption of J.J., 366 Pa.Super. 94, 103, 530 A.2d 908, 913 (1987) (en banc), citing Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923). “There is no simple or easy definition of parental duties. Parental duty is best understood in relation to the needs of a child ... These needs, physical and emotional, cannot be met by a merely passive interest in the development of the child ... the parental obligation is a positive duty which requires affirmative performance.” Shives, 363 Pa.Super. 225, 229, 525 A.2d 801, 803 (1987), quoting In Re Burns, 474 Pa. 615, 624, 379 A.2d 535, 540 (1977) (citations omitted). “Accordingly, when a child has been placed in foster care, a parent has an affirmative duty to work towards the return of the child.” In re William L., 477 Pa. 322, 333, 383 A.2d 1228, 1233 (1978); C.M.E., supra. “We think this ‘affirmative duty,’ at minimum, requires a showing by the parent of a willingness to cooperate with the agency [CYS] to obtain the rehabilitative services necessary for the performance of parental duties and responsibilities.” In Re Adoption of J.J., 511 Pa. 590, 602, 515 A.2d 883, 890 (1986).

Pursuant to the May 17, 1988 Stipulation, Frank was required to attend sexual abuse counseling classes as well as parenting classes. At the April 4, 1991 termination hearing CYS caseworker Charlotte Huber testified as follows:

Q. With regard to the plan as involved, you’ve also required that Mr. and Mrs. Matsock both participate in various programs?
Yes, in a Stipulation the Matsocks were required to attend parenting classes.
Q. Have they done so?
A. Yes, they have.
Q. With regard to Mr. Matsock you already testified that he did attend sexual abuse counseling classes held here in Warren County?
A. Yes, he attended, yes.
Q. And his participation cannot end at his request, that ended at the request of the Counselor of the program.? A. That’s correct.
Q. After that he also attended a series of counseling sessions in Tionesta [Forest County]?
A. Yes.
Q. And has he attended those classes regularly? Are those sessions regular?
A. Yes, he did.
Q. His termination from those sessions was not at his request, but rather at the request of the Counselor? A. That’s correct.

In response to a query from the court, Pedone specifically stated that in the Forest County sessions the Matsocks were not merely silent observers; they cooperated and complied with the rules of therapy. “[T]hey ha[d] give and take, there was a lot of discussion, so they cooperated and complied in that way.” In addition to attending counseling sessions and parenting classes, Frank testified that he had “cleaned up” the family domicile. Frank and Francis, as well as a CYS caseworker, testified that Frank had helped his wife establish a separate residence and had repaired the plumbing and various cracks in the walls. He obtained a car for Francis. After a slow start, Frank accompanied his wife to the bi-weekly supervised visits with their children. Thus the situation here is unlike the one addressed in Matter of Adoption of G.T.M., 506 Pa. 44, 483 A.2d 1355 (1984).

In G.TM., an intellectually limited parent of a child with multiple and severe behavioral problems refused to attend counseling sessions, dropped out of parenting classes, rarely visited her child, and when she did the parent either lost her temper or barely interacted with the child, and only improved the unsanitary, roach-infested living conditions when she married. Our supreme court upheld the involuntary termination of her parental rights because, aside from moving to a more sanitary residence with a new husband who had behavioral problems of his own, the mother had done nothing to improve her ability to parent; she merely offered promises of better behavior in the future.

Similarly, in Matter of Adoption of C.A.E., 516 Pa. 419, 532 A.2d 802 (1987), our supreme court upheld the involuntary termination of a mother’s parental rights because she had done nothing to work toward the return of her infant other than petition the court for custody and make sporadic visits while he was hospitalized during the first year of his life. C.A.E., the lone survivor of triplets born four months prematurely, suffered from arrested physical development and severe respiratory problems which would require intense and constant medical care for several years. Although the mother had managed to get her own troubled life back in order, she had never even learned the medical procedures necessary to care for her son. The mother’s own testimony that once she was awarded custody she would be capable and willing to care for her son, without some demonstration of that willingness or ability, was insufficient to prevent the involuntary termination of her parental rights.

Unlike C.A.E., here the record contains credible evidence that Frank has made affirmative efforts to prepare for the return of his children and to enable him to be a better parent to them. “What is important is the demonstrated willingness and ability of the parent to perform, at a minimal level, his or her parental duties.” In Re Adoption of J.J., 511 Pa. at 608, 515 A.2d at 893 (citations omitted); In Re Anderson, 317 Pa.Super. 490, 495, 464 A.2d 428, 430 (1983); Shives, supra. We, therefore, conclude that Frank fulfilled his “affirmative duty to work towards the return of his child[ren].” William L., supra; In Re Adoption of J.J., supra.

The term “needs and welfare” is a legal concept, Grimes, supra, that “denotes certain minimum requirements that all children are entitled to — adequate housing, clothing, food and love.” In Re Coast, 385 Pa.Super. 450, 466, 561 A.2d 762, 770 (1989) (en banc), allocatur denied, 525 Pa. 593, 575 A.2d 560 (1990); Michael J.C., 326 Pa.Super. at 159, 473 A.2d at 1029. “Thus, needs and welfare has both a tangible dimension, food, clothing and shelter, and an intangible dimension, parental love.” In re P.A.B., 391 Pa.Super. 79, 86, 570 A.2d 522, 525 (1990); J.W., 396 Pa.Super. at 391, 578 A.2d at 958. “It is universally agreed that the bond of parental affection is unique and irreplaceable. When parents act in accordance with the natural bonds of parental affection, preservation of the parent-child bond is primar facie in the best interest of the child and the state has no justification to terminate that bond.” J. W, 396 Pa.Super. 379, 391, 578 A.2d 952, 958 (1990). “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.” P.A.B., 391 Pa.Super. at 86, 570 A.2d at 525. (emphasis supplied). Moreover, pursuant to section 2511(a)(5), a court “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.” Id. (emphasis added).

At the November 1991 termination hearing the attorney for the children attempted to call the Matsocks’ oldest child, then fourteen, to testify, because in view of her age that she should have knowledge of this matter, that she should have some opportunity to voice her opinion as to what her wishes are.

The court refused to permit the daughter to testify, stating:

there’s been many cases as long as my arm that an issue of this nature, and this may shock you a little bit, the welfare of the children is not at issue. We’re not here to determine what is best for the children, we’re here to determine if the parental rights should be terminated. There are ample cases what the children think is not at all dispositive and I don’t mean to say when I say we’re not here for the welfare of the children, yes, that’s the bottom line or we wouldn’t be here, their happiness and so forth is not a central issue. The Court has to make a determination if these parents can parent and what all that means is physical health, spiritual growth, social growth, et cetera, and that isn’t the duty of the children to make that determination, that’s what I’m saying, that what these cases are holding. All these children could come in and tell the Court we want to stay with our mother and father and I would be surprised if they didn't, but the cases say the Court has to concentrate on whether or not the parents can parent their children.

It is well established in the Commonwealth that “[c]ourts are required not only to focus on the behavior of the parent but more importantly, are required to consider the effects of termination on the welfare of the child.'' In Re Adoption of Hamilton, 379 Pa.Super. 274, 280, 549 A.2d 1291 (1988) (citation omitted) (emphasis added). Before granting a petition to terminate parental rights, it is imperative that a trial court carefully consider the intangible dimension of the needs and welfare of a child — the love, comfort, security, and closeness — entailed in a parent-child relationship, as well as the tangible dimension. Coast, supra; Michael J.C., supra; J.W., supra. “Continuity of relationships is also important to a child, for whom severance of close parental ties is usually extremely painful.” William L., All Pa. at 348, 383 A.2d at 1241.

Section 2511 of the Adoption Act, which delineates the requirements for the involuntary termination of parental rights, is divided into two subsections. Subsection (a) consists of five paragraphs, each of which provides a separate basis for involuntary termination. Our supreme court, and this court sitting en banc, have determined that all the requirements set forth in the particular paragraph being utilized must be met before a court is required to consider subsection (b). In Re Adoption of J.J., 511 Pa. at 607, 515 A.2d at 892; Coast, 385 Pa.Super. at 466, 561 A.2d at 770; Michael J.C., 326 Pa.Super. at 159, 473 A.2d at 1029. Subsection (b), “Other Considerations,” directs the court to “give primary consideration to the needs and welfare of the child,” and notes that a court cannot terminate parental rights solely on the basis of specific environmental factors if those factors are beyond the control of the parents.

Paragraph 2511(a)(5), however, differs from the preceding four paragraphs in section (a) in that it mandates consideration of whether “termination of parental rights would best serve the needs and welfare of the child” as part of the grounds for termination. Paragraph (a)(5) reads:

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.A. § 2511(a)(5) (emphasis added).

Thus, in termination proceedings based on paragraph (a)(5), such as the one here, the needs and welfare of the child must be considered twice; once under subsection (a), and if all five requirements of subsection (a) are met, then again under subsection (b). Before parental rights may be terminated under subsection 2511(a)(5), each separate element contained in paragraph five must be proven. In Re Adoption of B.J.R., 397 Pa.Super. 11, 14, 579 A.2d 906, 908 (1990), citing In Re P.A.B., 391 Pa.Super. 79, 570 A.2d 522 (1990), allocatur granted, 526 Pa. 649, 585 A.2d 469 (1991). “[T]he fifth factor, whether termination would best serve the needs and welfare of the child, is not 'a mere formality flowing from the existence of the preceding four elements’ but is instead ‘a discrete consideration,’ ” id., which must be established by at least clear and convincing evidence. T.R., supra.

At the April 4,1991 termination hearing, CYS caseworker Charlotte Huber was questioned about the Matsocks’ supervised visits with their children.

Q. Have the children ever indicated that they did not want to have a visit?
A. No, the children like to have their visits.
Q. The children want to have a relationship with their parents?
A. Yes, they do.
Q. The parents, for the most part, want to have a relationship with the children?
A. I believe they do, yes.

The record clearly indicates that a bond of parental affection continues to exist between Frank and Francis and their children. Therefore, it was incumbent upon the court to consider that bond and the effect its destruction would have on the needs and welfare of the Matsock children. 23 Pa.C.S.A. § 2511(a)(5); J.W., supra; Hamilton, supra. “[T]he statutory scheme must be strictly complied with.” Michael J. C., 326 Pa.Super. at 153, 473 A.2d at 1026, citing In Re Adoption of E.M.A., 487 Pa. 152, 409 A.2d 10 (1979). The court’s failure to determine whether “termination of parental rights would best serve the needs and welfare of the children]” as part of the statutory grounds for involuntary termination under section 2511(a)(5), see 23 Pa.C.S.A. § 2511(a)(5); B.J.R.; P.A.B., constitutes an error of law.

After a broad and comprehensive review of the record, T.M.F., supra, we find that CYS failed to establish each of the five elements of the statutory criteria of section 2511(a)(5) of the Adoption Act by clear and convincing evidence, T.R., supra; Santosky, supra, and that the trial court abused its discretion in involuntarily terminating the parental rights of Frank Matsock. Mielcuszny, supra; Shives, supra. While we are bound by the trial court’s finding, supported by competent evidence in the record, that Frank did not “successfully complete” the sexual abuse therapy programs, In Re Adoption of J.J., supra, we are not bound by the court’s inference or deduction that Frank is an untreated sexual offender who poses a danger to his children. J.A.B., supra. We also conclude the trial court misapplied the law in failing to consider whether the needs and welfare of the Matsock children would be advanced by the termination of their father’s parental rights. In Re Adoption of J.J., supra; Coast, supra; Michael J.C., supra; Hamilton, supra; J. W, supra; P.A.B., supra. Therefore, we reverse the decree terminating the parental rights of Frank Leroy Matsock, Sr.

Decree reversed.

ROWLEY, P.J., dissents.

      . Act of July 9, 1976, P.L. 586, No. 142 § 2, found in 42 Pa.C.S.A. § 6301 et seq. The primary purpose of the Juvenile Act is “to preserve the unity of the family whenever possible and to proride for the care, protection, and wholesome mental and physical development of children coming within the provisions of this chapter.” 42 Pa.C.S.A. § 6301(b)(1) (emphasis added). The act provides for delinquent and dependent children. A dependent child is “a child who: (1) is without the proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals.” 42 Pa.C.S.A. § 6302.
      Moreover, the foregoing purposes are to be achieved “in a family environment whenever possible, separating the child from parents only when necessary for his welfare or in the interests of public safety." 42 Pa.C.S.A. § 6301(b)(3). "Any decision to remove the child from his home must be reconciled with the paramount purpose of preserving the unity of the family.” In Re Angry, 361 Pa.Super. 180, 184, 522 A.2d 73, 75 (1987) (citations omitted).

      . Frank and Francis Matsock have seven children. The first four, born in Genesee County, New York, are: J., born February 4, 1977; T., born May 19, 1978; M., born June 1, 1980; and F., the only boy, born August 19, 1981. The other three children, born in Warren County, Pennsylvania, are: T., the victim of the alleged abuse, who was born on August 25, 1983; K., born June 25, 1985; and K., who was born on April 22,1988, after the other children had been removed from the parental home.

      . The record contains no information about the referral CYS received of the suspected child abuse. Consequently, we do not know whether the report was oral or written, whether the source was anonymous or identified, whether it came from an individual or an institution, or the circumstances under which the alleged abuse occurred. We are particularly curious about the circumstances under which the alleged abuse came to light, for we cannot fathom who was in sufficiently close association with the family or the child to make such an intimate observation.
      It is unlikely that the referral came from a caseworker, for a caseworker’s observation would be a direct report and not a referral. In addition, based on a caseworker’s observation CYS could have immediately petitioned the court for authorization to remove the children without first haring to call in the Pennsylvania State Police to investigate. Cf. 23 Pa.C.S.A. § 6369 (no child protective services worker may enter a home to remove a victim of alleged abuse without judicial authorization). Similarly, as the medical documentation of the alleged abuse states simply that there were lacerations on the child's vulva — with no mention of any bleeding — it is unlikely that medical personnel reported suspected abuse. Moreover, medical documentation occurred after the child was removed from her home. The record contains no indication that the four year old was involved in pre-school, day care, or any other arrangement in which personal hygiene might be involved. Thus our bewilderment.

      . Section 6324 of the Juvenile Act provides:
      A child may be taken into custody:
      ******
      (3) By a law enforcement officer or duly authorized officer of the court if there are reasonable grounds to believe that the child is suffering from illness or injury or is in imminent danger from his surroundings, and that his removal is necessary.
      42 Pa.C.S.A. § 6324(3). According to the March 29, 1988 Family Service Plan Placement Amendment:
      In January of 1988, the Agency received a referral alleging that T. was the victim of inappropriate intimate physical contact at the hands of Frank Matsock, Sr. The children were assessed to be in danger by the police and removed from the home, (emphasis added).

      . Section 6335(c) of the Juvenile Act provides that “[i]f requested by the party or ordered by the court the proceedings shall be recorded by appropriate means. If not so recorded, full minutes of the proceedings shall be kept by the court." 42 Pa.C.S.A. § 6335(a). The record forwarded to Superior Court contains neither a transcript nor "full minutes” of the abbreviated hearing. Thus we are unable to determine from the record if the Matsock children were declared dependent, either when the petition was granted on the January 8, 1988 or at the informal hearing on January 11, 1988. See 42 Pa.C.S.A. § 6341.

      . Act of October 15, 1980, P.L. 934, No. 163, found in 23 Pa.C.S.A. § 2501 et seq.

      . The record does not indicate whether there was a disposition review hearing at the end of the two month period.
      Section 6351(e) of the Juvenile Act provides that, with certain exceptions, a disposition review hearing shall be conducted every six months. Section 6351(f) provides:
      At each disposition review hearing, the court shall:
      (1) determine the continuing necessity for and appropriateness of the placement;
      (2) determine the extent of compliance with the service plan developed for the child;
      (3) determine the extent of progress made toward alleviating the circumstances which necessitated the original placement;

        (4) determine the appropriateness and feasibility of the current placement goal for the child; and
      (5) project a likely date by which the goal for the child might be achieved.
      42 Pa.C.S.A. §§ 6351(e) & (f).. See also In Interest of Paul S., 380 Pa.Super. 476, 552 A.2d 288 (1988).
      While the transcript of the April 4, 1991 termination hearing contains references to "Master’s Review Hearings," the record forwarded to Superior Court is devoid of any transcripts or "full minutes of the proceedings” from any Master’s Review hearing, despite the statutory mandate of section 6336(c) of the Juvenile Act. See 42 Pa.C.S.A. § 6336(c).

      . Despite the mandate of Pennsylvania Rule of Appellate Procedure 1931, and official certification that the record transmitted to this court "is a true and correct copy of the whole and entire record ..." the record sent by the former prothonotary of Warren County was woefully inadequate. The record transmitted to Superior Court contained only eleven documents; three copies of the April 21, 1991 “Adjudication,” three copies of the April 24, 1991 Decree Nisi, and five miscellaneous documents. The record contained no documents filed prior to April 1991, and the transcript of the April 7, 1991 hearing was sent without the exhibits. It was only through the sustained efforts of the Pittsburgh office of the Superior Court Prothonotary, with the help of the new Warren County prothonotary, that we finally received the May 17, 1988 Stipulation, the transcript of the November 7, 1988 hearing, and various exhibits. Without the additional documents, which constitute part of the record, we would have been precluded from conducting an adequate review.
      We note also that, pursuant to Pa.R.A.P. 1911(a), the "appellant shall order any transcript required____’’ Therefore, it was incumbent upon Frank Matsock’s attorney to have a transcript of the October 29, 1989 hearing made part of the record. As this court recently stated:
      While we recognize that appellant is proceeding in forma pauperis, she has been represented by court-appointed counsel throughout the entire termination proceedings, and despite her indigent status, “it is nonetheless appellant’s responsibility to order the transcript required and ascertain its presence in the record prior to certification for appeal" Commonwealth v. Osellanie, 408 Pa.Super. 472, 475, 597 A.2d 130, 131 (1991) (Cirillo, J., dissenting) (emphasis added).

        In Re: M.T., R.T. & H.T., 414 Pa.Super. 372, 381, 607 A.2d 271, 275-276 (1991) (footnote omitted) (citations omitted) (emphasis in original). The panel in M.T. noted that “[ajppellant’s indigent status does not impinge upon her ability to obtain a complete transcript because the county, not appellant, pays the cost of transcription.” Id.

        . At the November 7, 1988 hearing Francis testified as follows:
      Q. Are you planning on leaving Mr. Matsock at any time?

        A. No, me and my husband get along good. It did come up though when I was talking to Sylvia [Pallott, a CYS caseworker] and she suggested if I left my husband I would get my children back.
      Q. At that point did you consider leaving your husband?
      A. I did consider it and she said if I went to the "Y" and stay there and then move to Allegheny Village maybe I would get one or two of the kids at the time.
      Q. But from Sylvia suggesting that it never entered your mind? A. No.
      Testimony from various CYS caseworkers confirms CYS introduced the idea of Francis leaving her husband. We find the suggestion to be of questionable propriety. As this court stated in In Re Adoption of 348 Pa.Super. 65, 72, 501 A.2d 648, 651 (1985), "Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, ... for as noble a purpose as any____" Id. (citation omitted).

      . We note that the notice of appeal, filed September 19, 1991, incorrectly listed the date of the order being appealed from as September 19, 1991, instead of August 21, 1991, the actual date of the Final Decree. This court granted Frank’s petition to correct the date on the notice of appeal.

      . At the same hearing the following exchange occurred between the trial court judge and Francis:

        Francis: What’s the question?

        Judge: Whether or not your child, T., was sexually abused by your husband?

        Francis: She said she wasn’t.

        Judge: I’m asking you what is your opinion.

        Francis: I believe she wasn’t, no.

      . CYS determined that the sexual abuse referral was "indicated." See 23 Pa.C.S.A. § 6368. Under the Child Protective Services Law a referral of abuse is "indicated” whenever:
      an investigation by the child protective service determines that substantial evidence of the alleged abuse exists based on any of the following:
      (1) Available medical evidence.
      (2) The child protective service investigation.
      (3) An admission of the acts of abuse by the parent of the child or person responsible for the welfare of the child.
      23 Pa.C.S.A. § 6303.

      . See footnote seven, supra.

      . The sexual abuse counselor from Forest County, Anthony Pedone, testified that another psychologist had given Frank evaluative tests. Pedone further testified that he had reviewed the results and Frank’s "I.Q. rating came out borderline at anywhere from 68 to 72 and mentally retarded or borderline parents can be very good parents and we took extra care to specifically explain everything.” Frank testified that he had to quit school in the sixth grade, and that he receives a disability pension from the Veteran’s Administration. For some unspecified reason, Frank is unable to drive. Frank suffers from severe health problems, including a bad heart and high blood pressure. He takes daily medication.
      Initially, Frank did not attend the scheduled visits with his children because they were on the second floor of a building which had no elevator and Frank believed his physician had told him after his heart attack not to climb stairs. After the Judge emphatically told Frank that he did not believe him and found his excuses to be incredible, Frank’s attendance at all the court ordered programs improved. According to the court’s opinion of November 24, 1989, ”[t]he cases are replete that if there is any effort made by a respondent to perform his parental duties termination is not proper.”

      . In its Adjudication of April 24, 1991, the court cites B.J.R., supra, acknowledges that the statute requires proof of the five elements, and reproduces the five elements of the statute precisely as they appear in B.J.R. The court then states, "[w]e are convinced beyond any doubt the agency has met its burden the parental rights of the father must be terminated,” without ever addressing how termination of Frank’s parental rights would best serve the needs and welfare of his children.


source: Caselaw Access Project

author: FORD ELLIOTT, Judge.

license: Public Domain

text:
    611 A.2d 749
    Leroy WESTBROOK and Bobbie Lou Westbrook, his Wife v. John W. ROBBINS and Julius Young and Ralph D. Narcisi and Pennsylvania Financial Responsibility Assigned Claims Plan. Appeal of PENNSYLVANIA FINANCIAL RESPONSIBILITY ASSIGNED CLAIMS PLAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 81, 1991.
    Filed June 24, 1992.

      A. Richard Feldman, Philadelphia, for appellant.
    Francis X. Dochney, Philadelphia, for appellee West-brook.
    Before ROWLEY, President Judge, and CAVANAUGH, WIEAND, CIRILLO, OLSZEWSKI, KELLY, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   FORD ELLIOTT, Judge.

This is an appeal from the April 17, 1990 order of the Court of Common Pleas of Philadelphia County, denying the Pennsylvania Financial Responsibility Assigned Claims Plan’s (hereinafter “PACP”) motion for post-trial relief, and entering judgment against it in the amount of $6,357.50 for interest and attorney’s fees. We reverse.

This case arises from an accident that occurred on March 30, 1987. Appellee, Leroy Westbrook, suffered injuries while riding as a passenger in a car owned by Julius Young and operated by John Robbins. The vehicle being driven by Robbins collided with a vehicle operated by Ralph Narcisi.

Appellee, within a month after the accident, submitted an application for benefits to the PACP. The PACP assigned the claim to Travelers Insurance Company as its adjusting agent for evaluation and processing. Travelers notified Westbrook’s counsel of the assignment by letter dated May 26, 1987. On July 23, 1987, a Travelers’ claims representative wrote to Westbrook’s counsel requesting that counsel provide proof that the Young vehicle was uninsured. There is significant disagreement between the parties as to when Travelers received notice that the Young vehicle was uninsured.

Eventually, on February 8, 1988, Westbrook filed a complaint against Young, Robbins, Narcisi, and the PACP. By that point it had been nine months since Westbrook had first submitted a claim for benefits to the PACP, and, as yet, he had received nothing. Finally, on December 28, 1988, nineteen months after initially submitting a claim for benefits, and just prior to the scheduled arbitration date, Travelers paid Westbrook a sum of $5,000.00 in first party benefits.

At the arbitration hearing the board found, inter alia, in favor of Westbrook and against the PACP for an amount of attorney’s fees and costs, together with twelve percent per annum interest on plaintiff’s first party benefits for the period that benefits were due but unpaid.

The PACP took a statutory appeal to the Court of Common Pleas of Philadelphia County. A bench trial was held on June 29, 1989, before the Honorable Charles A. Lord. On September 14, 1989, the trial court issued an Order and Opinion finding in favor of Westbrook and against the PACP. The trial court awarded $5,557.50 in attorney’s fees and costs, and $800.00 in interest.

The PACP filed post-trial motions which were denied by order of court dated April 17, 1990. This timely appeal followed.

Appellant raises three issues for our consideration.
I. Whether the Assigned Claims Plan is subject to liability for attorney’s fees under the Motor Vehicle Financial Responsibility Law?
II. Whether the trial court’s conclusion that Travelers, acting as the Assignéd Claims Plan’s adjuster, unreasonably refused to pay plaintiff’s claim, was erroneous as a matter of law where it was undisputed that Travelers never refused to pay the claim, and Travelers in fact paid the claim in full within several months of first receiving evidence establishing plaintiff’s eligibility for benefits?
III. Whether the Assigned Claims Plan is subject to liability for the 12% interest penalty under the Motor Vehicle Financial Responsibility Law?

We find that appellant’s first and third issues present this court with questions of first impression. We shall address these issues simultaneously. Furthermore, our resolution of the first and third issues will render moot any consideration of appellant’s second issue.

Appellant would have us reverse the trial court’s award of interest and attorney’s fees on the basis of this court’s prior holding in Williams v. Tuck, 397 Pa.Super. 213, 579 A.2d 1332 (1990). According to appellant, the Williams court held that the Assigned Claims Plan and its assignees are not subject to the penalties of attorney’s fees and interest under the MVFRL, and thus should provide sufficient precedent for reversing the trial court in this instance. However, appellant tends to overstate the actual holding in Williams.

In Williams, supra, Gina Williams filed suit against Travelers Insurance Company seeking to recover first-party benefits and attorney’s fees under the Assigned Claims Plan provisions of the MVFRL. Travelers was the company designated to handle Williams’ claim under the Assigned Claims Plan. Williams raised the argument that Travelers was an “insurer” under section 1798(b). This court disagreed.

The trial court concluded that since the insurer in this instance was the insurer designated to pay first party benefits pursuant to the Pennsylvania Assigned Claims Plan, 75 Pa.C.S. §§ 1751-57, it was not an ‘insurer’ under section 1798(b) and that the attorney’s fees of appellant-claimant were not recoverable under that section. It based this conclusion on the fact that appellee and appellant had no insurer-insured relationship. We agree.

Id., 397 Pa.Superior Ct. at 215, 579 A.2d at 1334.

The Williams court was only confronted with the issue of whether an assignee of the PACP could be held liable for interest and attorney’s fees under the provisions of the MVFRL. To that end, the Williams court held:

We determine that when the provisions of the MVFRL are read as a whole, it is clear that the legislature did not intend by enacting section 1798 to provide for attorney’s fees against insurers assigned to claims arising under the Assigned Claims Plan and which have no policy of insurance issued to the claimant.

Id.

Thus, the holding in Williams is limited to the propriety of an award of attorney’s fees against an assigned carrier under the PACP. However, in the present case, appellant presents us with a unique, albeit somewhat similar issue; namely, whether the Assigned Claims Plan, itself, can be held liable for interest and attorney’s fees.

Both parties present a myriad of arguments to this court on the issue of the imposition of fees and costs against the PACP. This opinion will attempt to address all the relevant arguments in hope of minimizing the recurrence of these issues in the future.

First, the PACP argues that the MVFRL does not specifically provide that the PACP is subject to attorney’s fees. According to the PACP, a review of the entire MVFRL reveals that it is devoid of any specific provisions subjecting it to the imposition of attorney’s fees.

Appellees respond to this argument by noting that the PACP is subject to an imposition of attorney’s fees by way of application of section 1798(b) of the MVFRL. Specifically, section 1798(b) provides:

In the event an insurer is found to have acted with no reasonable foundation in refusing to pay the benefits enumerated in subsection (a) when due, the insurer shall pay, in addition to the benefits owed and interest thereon, a reasonable attorney fee based upon actual time expended.

75 Pa.C.S.A. § 1798(b). According to appellees, the PACP qualifies as an insurer for purposes of this section, given that the PACP is no more than a collection of all the insurance companies who do business in Pennsylvania. Furthermore, the benefits paid out by the PACP are, in essence, first-party benefits as outlined in subchapter B of the MVFRL; therefore, since § 1798(b) specifically refers to unreasonable refusals to pay those benefits enumerated in subparagraph (a) (of which subchapter B first-party benefits are included), then the Plan can be liable for attorney’s fees when there is an unreasonable delay in paying benefits.

The PACP offers several concrete responses to appellees’s argument which we find persuasive. First, the PACP argues that the plain language of section 1798(b) makes clear the fact that it only applies to insurers. According to the PACP, it is not an insurer as that term is defined in the MVFRL. The MVFRL defines an “insurer” or an “insurance company" as “[a] motor vehicle liability insurer subject to the requirements of this chapter.” 75 Pa.C.S.A. § 1702. The PACP notes that it does not collect premiums nor provide liability insurance. When a statute provides its own internal definitions, we are bound to construe the statute according to those definitions. See Commonwealth v. Lobiondo, 501 Pa. 599, 462 A.2d 662 (1983). In this instance, the PACP does not fall within the statutory definition of an “insurer.” While the PACP may be comprised of all insurance companies doing business in this Commonwealth, that fact alone does not make the PACP itself an insurer.

In the present case, there is no insurer-insured relationship between Westbrook and the PACP. Their relationship is created by statute, and must be defined accordingly. Under the applicable statutory language, the PACP is not an insurer.

Next, the PACP argues that even if it was to be considered an “insurer” for purposes of § 1798, the section still does not provide for the imposition of attorney’s fees with respect to claims handled pursuant to the Assigned Claims Plan.

Recall that section 1798(b) only provides for the imposition of attorney’s fees when an insurer has acted unreasonably in refusing to pay the benefits enumerated in section 1798(a). Section 1798(a) only refers to first party benefits under subchapter B of the MVFRL and catastrophic loss' benefits under subchapter F of the MVFRL. Section 1798(a) makes no mention of subchapter E, Assigned Claims Plan benefits. The language of section 1798 is clear and unambiguous, and leads to the conclusion that section 1798(b) was not intended to apply to the Assigned Claims Plan situation.

Appellees argue that appellant’s reading of the MVFRL is too isolated; that the various subchapters must be read in conjunction, and that when they are, it is clear that section 1798(b) applies to benefits payable through the Assigned Claims Plan. According to appellees, since section 1753, which outlines the benefits available under the Assigned Claims Plan, specifically refers back to subchapter B, the benefits payable under the Assigned Claims Plan really are, in fact, subchapter B first-party benefits. Thus, given the interrelated nature of subchapters B and E, it is logical to conclude that section 1798(a), while only expressly listing subchapter B, can be interpreted to include subchapter E, thus making section 1798(b) applicable to the Assigned Claims Plan as well.

While appellees’ argument may be persuasive, it requires too tortured an analysis of the MVFRL. As directed by the supreme court’s decision in Hackenberg v. Southeastern Pennsylvania Transportation Authority, 526 Pa. 358, 586 A.2d 879 (1991), when construing the MVFRL it is important to pay close attention to the language of the act, itself, and the statute’s organization into subchapters. Hackenberg involved the interpretation of section 1787, in subchapter I, of the MVFRL. Section 1787 requires self-insurers, such as SEPTA, to provide uninsured motorist coverage. The issue surrounded the application of section 1787 in a situation where an employee was injured in an accident for which he was receiving workmen’s compensation benefits. SEPTA argued that it was not required to pay uninsured motorists benefits along with workmen’s compensation benefits. Hackenberg urged the court to interpret section 1787 in conjunction with section 1735, which required that “[t]he coverages required by this sub-chapter shall not be made subject to an exclusion or reduction in amount because of any [workmen’s] compensation benefits payable as a result of the same injury.” The court rejected Hackenberg’s broad reading of the MVFRL noting that section 1735, by its own language, only applies to subchapter C, which involved persons, employers, and others who had purchased policies of insurance. The court refused to utilize a provision in subchapter C to interpret a provision is subchapter I. Id., 526 Pa. at 358, 586 A.2d at 879. Similarly, we will not now dilute the clear and unambiguous language of section 1798 by attempting the interpretation outlined by appellees.

Appellant’s second major argument against the imposition of attorney’s fees is in response to the trial court’s reliance on provisions of the No-Fault Act to support its decision to impose fees against the PACP. This analysis is closely related to the previous discussion on whether the PACP is an insurer, as that term is used in section 1798. Both the trial court and appellees raise the argument that under the No-Fault Act, the predecessor to the MVFRL, an insurer assigned to a claim, under the Assigned Claims Plan, was deemed obligated to the claimant as if the assigned carrier, itself, had issued a policy of basic loss insurance to the claimant. Section 108 of the former No-Fault Act provided, inter alia:

Claims shall be assigned so as to minimize inconvenience to claimants. The assignee thereafter has rights and obligations as if he had issued a policy of basic loss insurance complying with this act applicable to the injury

40 Pa.S.A. § 1009.108(b)(2). According to the trial court, and appellees, when the Legislature reorganized the No-Fault Act by creating the MVFRL, it specifically saved section 108 from repeal. See 75 Pa.C.S.A. § 1751, Historical and Statutory Notes. Thus, according to appellees, the PACP is obligated to Westbrook as if it had issued a policy of insurance directly to him, because the No-Fault Act clearly demonstrates that the Plan is to be treated as an “insurer.”

Appellant responds by noting that while the MVFRL did save section 108 of the No-Fault Act from repeal, it was only a certain part of that section which was saved. The plain language of the savings provision bears out appellant’s contention. The savings provision of the MVFRL at issue provides that, notwithstanding the repeal of the No-Fault Act, “the requirement to fund the payment of assigned claims under section 108 of the act remains unaffected.” Act of February 12, 1984, P.L. 26, No. 11, § 9. As appellant notes, the savings clause merely saves from repeal that part of the section 108 which required funding of claims which arose under the No-Fault Act prior to October 1, 1984, and which are still accruing expenses. The savings provision guaranteed a continuation of funding during the change-over from the Assigned Claims Plan of the No-Fault Act to the MVFRL Assigned Claims Plan.

Furthermore, we find persuasive appellant’s argument that the Assigned Claims Plan created by the MVFRL, although established for the same purposes, differs in its operation from the Plan as enacted by the No-Fault Act. Under the No-Fault Act, the insurance companies providing basic loss benefit coverage in this Commonwealth were required to organize an Assigned Claims Bureau, the responsibility of which was to assign a claim to a participating insurer and to notify the claimant to that effect. Thereafter, the insurer assumed all the obligations to the claimant as if it had issued a policy of insurance. Tubner v. State Farm Insurance Co., 496 Pa. 215, 436 A.2d 621 (1981). Under the operation established for the Assigned Claims Plan under the MVFRL, “claims are not assigned to an individual insurance company. Rather, the Plan collects surcharges from all companies doing business in Pennsylvania and contracts with an individual company to handle a claim.” Ronca, Sloane and Mundy, Pennsylvania Motor Vehicle Insurance: An Analysis of the Financial Responsibility Law, p. 78 (1986). Under this arrangement the carriers perform the function of claims adjusters for the Plan and assume no other responsibilities.

The final section of the MVFRL at issue between the parties is section 1716. Appellees maintain that section 1716 is applicable to the PACP and thus provides a conduit for the imposition of fees and interest. Section 1716, in subchapter B of the Act, provides for the imposition of attorney’s fees and a penalty of 12% interest on benefits due, but not paid within 30 days after the insurer receives reasonable proof of the amount of the benefits. The trial court specifically relied upon this section to support its award of interest.

Appellant presents several compelling arguments as to why section 1716 does not apply to the PACP. First, section 1716 applies only to insurers and the PACP is not an insurer. As discussed previously, we agree with appellant that for purposes of the MVFRL, the PACP is not an insurer. Second, appellant notes that section 1716 is located in subchapter B, and there is no corresponding section in subchapter E. According to appellant, this is further evidence that the Legislature did not intend the PACP to be subject to fees and interest awards. See Lee v. Safeguard Mutual Insurance Co., 379 Pa.Super. 104, 117 n. 9, 549 A.2d 927, 933 n. 9 (1988) (where the legislature includes specific language in one section of a statute and excludes it from another, it should not be implied where excluded). Appellant solidifies its point by noting that there are several parallel provisions in subchapters B and E.

For instance, each subchapter has provisions describing the types and amounts of benefits payable (compare § 1711 with § 1753); provisions governing eligibility (compare § 1714 with § 1752(a)) and ineligibility (compare § 1718 with § 1752(b)); provisions governing subrogation (compare § 1720 with § 1756); and provisions outlining limitations periods (compare § 1721 with § 1757). However, the attorney’s fees and interest provision in subchapter B has no such parallel in subchapter E. The parallelism of the subchapters indicates the legislature intended each to stand on its own. Otherwise, there would have been no need to duplicate similar provisions in each subchapter. Thus, had the legislature intended subchapter E to include a provision for attorney’s fees and interest, it would have inserted one. We will not now read such a provision into subchapter E.

Finally, with respect to the 12% interest provision of section 1716, appellant offers one other practical reason why that provision should not be interpreted to apply to the PACP through subchapter E. Section 1716 imposes the 12% interest penalty once a 30-day period expires after the insurer receives proof of the amount of benefits. In the insurer-insured relationship envisioned by section 1716 in subchapter B, this 30-day period in which the insurer must evaluate and pay the claim makes sense. The insurance company will already have information on file concerning the insured and vehicle in question. Thus, it is a relatively simple matter for the company to evaluate the claim and verify benefits.

However, this same 30-day period is impractical in the arena of assigned claims. The Plan has no prior information on a claim when one is filed. This requires the plan to start its investigation from scratch. Furthermore, there are seven eligibility requirements which must be verified before benefits can be paid. See 75 Pa.C.S. §§ 1752(a)(1)-(a)(6). Unlike private policies of insurance, which are primary to any other health insurance, the benefits payable under the Plan are secondary to other forms of health coverage. Thus, an investigation into alternative forms of health coverage is also necessary. Therefore, in many cases, it would be impractical to impose the 30-day limit of subchapter B on the evaluation and payments of claims under the Assigned Claims Plan.

Finally, appellees raise public policy arguments as to why the PACP should be subject to the penalties of interest and fees when claims are not timely processed and paid.

Appellant counters by maintaining that since the PACP is a non-profit organization, there is no incentive on its part to delay in paying claims. Furthermore, according to appellant, the imposition of fees and interest would only serve to deplete the fund.

Pennsylvania has long followed the rule that absent a statutory provision to the contrary, each party to litigation is responsible for his own legal fees. In this instance, appellant has clearly demonstrated to this court that there are no provisions of the Act requiring the PACP or its assignees to pay legal fees or interests. We further find that any changes in response to the public policy concerns are more properly left to the legislature.

Accordingly, the order of the trial court denying appellant’s post-trial motions is reversed. The judgment entered against the PACP is vacated. Case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.


author: TAMILIA, Judge.

text:
    611 A.2d 755
    Bruno MAMONE v. BELTONE HEARING AID SERVICES, INC., d/b/a L.S.F. Corporation; and William E. King, Individually, Appellants.
    Superior Court of Pennsylvania.
    Argued April 23, 1992.
    Filed June 26, 1992.
    Reargument Denied Sept. 3, 1992.

      Robert A. Felkay, Pittsburgh, for appellants.
    Ernest Butya, Pittsburgh, for appellee.
    Before TAMILIA, HUDOCK and HESTER, JJ.
   TAMILIA, Judge.

Beltone Hearing Aid Service, Inc. (hereinafter Beltone) and William F. King appeal the judgment entered against them on September 20, 1991 in the amount of $1,650.

Appellee initially contacted Beltone to inquire about purchasing hearing aids. Beltone sent a representative to meet with appellee and test him for hearing aids. The representative obtained test results of an audiogram performed in the preceding months by appellee’s ear, nose and throat specialist, and ultimately determined appellee would benefit from two hearing aids. As part of the sales agreement, which contained a “no refund” clause, appellee signed a medical waiver form and subsequently was fitted with the hearing aids. After three months, appellee, who was dissatisfied with the product because of the lack of improvement in his hearing, informed Beltone he wanted a refund and eventually filed suit seeking the return of the purchase price on the grounds of noncompliance with the Hearing Aid Sales Registration Law. Following a nonjury trial, the court found appellants did not comply with the dictates of Act 262 and accordingly returned a verdict against appellants. Specifically, the court found appellants did not comply with section 6700-403, which provides as follows:

§ 6700-403. Medical examination
No hearing aid is to be sold to any individual unless, within the preceding six months, the individual has been examined by an otologist or otolaryngologist or any licensed physician, and a written recommendation has been made by suck physician that the use of a hearing aid may be beneficial to the physician’s patient.
This section does not apply to ... any individual who signs a written waiver as set forth in this section. The waiver form must be in at least ten-point type. The waiver must be read and explained in such a manner that the purchaser will be thoroughly aware of the consequences of signing the waiver. The waiver form shall read as follows:
“I have been advised that my best interests would be served if I had a medical examination by an otologist or otolaryngologist or any licensed physician before my purchase of a hearing aid.
_ has fully and
(Registrant’s Name)
clearly informed me of the value of such medical examination. After such explanation, I voluntarily sign this waiver. I choose not to seek a medical examination before the purchase of the hearing aid."

35 P.S. § 6700-403 (emphasis added).

Appellants argue the court erred in voiding the purchase agreement because appellants complied with the requirements of the Hearing Aid Sales Registration Act by obtaining the test results from an audiogram performed by appellee’s doctor, which in effect constituted a written recommendation that a hearing aid would benefit appellee.

The standard of review from a final judgment by a trial court sitting without a jury is well defined.

Our appellate role is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in any application of the law. The findings of the trial judge in a non-jury case must be given the same weight and effect on appeal as the verdict of a jury, and the findings will not be disturbed on appeal unless predicated upon errors of law or unsupported by competent evidence in the record. Furthermore, the verdict winner is entitled to have the evidence considered in a light most favorable to himself.

Porter v. Kalos, 409 Pa.Super. 159, 164, 597 A.2d 709, 711-12 (1991), quoting Piccinini v. Teachers Protective Mutual Life, 316 Pa.Super. 519, 524-25, 463 A.2d 1017, 1021 (1983).

Although appellee was examined by a physician and the test results from an audiogram were submitted within the proper time frame, we find the results did not amount to a written recommendation within the meaning of section 403. In fact, one of Beltone’s employees conceded that appellants received no written recommendation. Appellants contend appellee’s doctor customarily would only send an audiogram to the hearing aid fitter if he believed his patient would benefit by the use of a hearing aid. Appellants further argue the law does not set forth any particular form for the recommendation. We disagree. The law unambiguously states that a written recommendation is required, and the information contained in the audiogram, which consisted only of numbers and x’s, did not fulfill this requirement. Therefore, although appellants’ intentions may have been to comply with the law, they did not receive a written recommendation.

In the alternative, appellants argue a written recommendation was not needed because appellee signed the following medical waiver, which met the requirements of section 403, supra:

I have been advised by BELTONE that the food and drug administration has determined that my best interest would be served if has [sic] a medical evaluation by a licensed physician (preferably a physician who specializes in diseases of the ear) before purchasing a hearing aid. I do not wish a medical evaluation before purchasing a hearing aid.
I am 18 years or older.
/S/ Bruno Mamone

Appellants contend the word “shall,” in the portion of section 403 which states “[t]he waiver form shall read as follows,” denotes a permissive interpretation. We agree with the trial court’s finding “[t]he use of the statutory language is not permissive but mandatory.” (Slip Op., Zeleznik, J., 11/14/91, p. 4.)

Section 1921 of the Statutory Construction Act provides as follows:

§ 1921. Legislative intent controls
(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.
(b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.

1 Pa.C.S. § 1921(a) and (b). “[T]he question of whether a statute will be deemed mandatory or discretionary has been decided with reference to the perceived intent of the legislature with respect to the use of the terms “shall” and “may” in the particular statute at issue.” Commonwealth v. Ferguson, 381 Pa.Super. 23, 32, 552 A.2d 1075, 1079 (1988). Generally, though, the term “shall” is construed as creating a mandatory duty, and only rarely in matters of time or form is the term construed as creating only a discretionary duty. Id. It is clear the intent of the Legislature in enacting this law was to safeguard the rights of users and buyers of hearing aids. One way of accomplishing this goal is by having the sellers adhere strictly to the mandatory directives of the statute. Thus, the waiver appellee signed was not legally binding and appellants, therefore, did not comply with the Hearing Aid Sales Registration Law. We further note it is also questionable whether appellants gave appellee a satisfactory explanation concerning the contents of the waiver form which he signed.

Finally, appellants argue the court erred in finding against William E. King individually when appellee’s counsel stipulated on the record he was not pursuing King individually. We agree with the trial court that since appellants did not argue this issue in its brief in support of post-trial motions, the issue has been waived on appeal. Cucchi v. Rollins Protective Services Co., 377 Pa.Super. 9, 546 A.2d 1131 (1988), rev’d on other grounds, 524 Pa. 514, 574 A.2d 565 (1990).

Judgment affirmed.

      . Hearing Aid Sales Registration Law, 1976, Nov. 24, P.L. 1182, No. 262; 35 P.S. §§ 6700-101 et seq.

      . Appellee argues he is entitled to judgment for treble damages in conjunction with section 608, which states:
      § 6700-608. Recovery of treble damages and attorney fee Any buyer injured by a violation of this act may bring an action for the recovery of damages. Judgment may be entered for three times the amount at which the actual damages are assessed, plus reasonable attorney fees.
      35 P.S. § 6700-608. We agree with the trial court’s decision not to award treble damages here since, even though they failed, it appears appellants did make a good faith effort to comply with the requirements of the law.


author: POPOVICH, Judge:

text:
    611 A.2d 758
    Paul WESTHEAD, Appellant, v. Bruce G. FAGEL, Esquire, Appellee.
    Superior Court of Pennsylvania.
    Argued April 21, 1992.
    Filed July 2, 1992.

      Patrick C. Campbell, Jr. and Richard G. Phillips, Philadelphia, for appellant.
    David H. Marion, Philadelphia, for appellee.
    Before ROWLEY, President Judge, and MONTEMURO and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Philadelphia County, entered on June 7, 1991, which sustained appellee’s preliminary objections and dismissed appellant Paul Westhead’s complaint. The lower court determined that appellee Bruce Fagel, Esquire did not possess contacts with Pennsylvania sufficient to subject him to in personam jurisdiction. In addition, the court concluded that trial of Westhead’s defamation suit in Pennsylvania would be improper under the doctrine of forum non conve niens. Westhead herein challenges both rulings of the court below. Having reviewed the record, we find that the lower court properly sustained appellee’s preliminary objections to the exercise of in personam jurisdiction by the courts of Pennsylvania. Accordingly, we affirm.

The record reveals the following facts: The present defamation action is related to the action of Lucille Gathers, et al. v. Loyola Marymount University, et al., Superior Court of California, No. C759027, filed in the California Superior Court, Los Angeles County. Therein, plaintiffs allege, inter alia, that the negligence of Westhead, the former Loyola Marymount University head basketball coach, contributed to the death of Eric “Hank” Gathers, a Loyola Marymount basketball “star”.

While at Loyola Marymount, Gathers collapsed during a basketball game on December 9, 1989. After the collapse, Gathers was diagnosed as having a cardiac arrythmia. Gathers’ physicians prescribed the medication, Inderal, and permitted Gathers to resume playing basketball. Inderal is known to produce certain side effects, including sluggishness and the inhibition of muscle coordination. After he was initially prescribed Inderal, Gathers’ physicians reduced the amount of Inderal on several occasion. On March 4, 1990, Gathers collapsed again during a basketball game and died.

Fagel filed suit against Loyola Marymount, Westhead and Gathers’ physicians on behalf of Hank Gathers’ heirs on April 16,1990. Fagel deposed Westhead in July of 1990, and he deposed Vernon Hattori, M.D., one of Gathers’ physicians, in August and October of 1990. In January of 1991, Fagel held a press conference in Los Angeles, California. Reporters from the Los Angeles Times, the Associated Press and United Press International attended the media event. During the press conference, Fagel made the following, allegedly defamatory statements:

a. That if it were not for Paul Westhead[,] Hank gathers would be alive today.
b. That Paul Westhead acknowledged in his deposition that he had asked that Hank Gathers’ medication be reduced.
c. That Dr. Hattori acknowledged in his testimony that Westhead had requested medication reduction.
d. The impetus for all the reductions of Hank’s medication — except the first one — were instigated by West-head.

Westhead contends those statements are false. West-head also contends that Pagel “has exploited the press throughout this litigation to accomplish objectives which he considered to be beneficial to the presentation of his case.” Westhead’s Brief, p. 7. Specifically, Westhead submits that Pagel timed his allegedly defamatory remarks to coincide with a hearing before the California Superior Court on a motion to dismiss his clients’ suit for lack of standing. Westhead’s Brief, pp. 7-8.

The statements made by Fagel were published in Pennsylvania on January 19, 1991, and January 20, 1991, in the Philadelphia Daily News and the Philadelphia Inquirer, respectively. Although Westhead was a citizen of California at the time the suit was filed, Westhead avers publication of those allegedly false statements in Pennsylvania substantially damaged his reputation in this forum. He submits that he was raised in Philadelphia, began his basketball career there and built his reputation as a baskétball coach in “the city of brotherly love.” Westhead claims to have many family members and friends who reside in the Philadelphia area. In addition, Hank Gathers was from Philadelphia and his family still resides there. Westhead argues that by virtue of Westhead’s and Gathers’ ties to Philadelphia, there is significant media interest in the Gathers’ case in Pennsylvania. Therefore, Westhead asserts Pagel knew or should have known that his statements would be published in Pennsylvania, and that they would cause substantial damage to him in this forum.

In opposition to jurisdiction in Pennsylvania, Fagel emphasizes that both parties are residents of California, that he is neither licensed to practice law in Pennsylvania nor does he regularly conduct business in this Commonwealth, and he does not own property in this forum. Fagel also notes that the press conference was held in Los Angeles, California and that only members of the press from the Los Angeles area were invited to and actually attended the conference. Finally, he points out that the litigation underlying this defamation suit is currently pending in California Superior Court.

Turning to the question of whether in personam jurisdiction over Fagel exists in Pennsylvania, we reiterate the standards to be applied to such a question:

The assertion of personal jurisdiction over a non-resident must fall within the terms of the state long-arm statute and must meet the constitutional standards of due process____ Because the reach of the Pennsylvania Long-Arm Statute is “co-extensive with requirements of due process under the Fourteenth amendment to the United States Constitution,” our controlling consideration here is “whether [defendant] had sufficient minimum contacts with this forum to make the exercise of jurisdiction permissible.” ...

Nissley v. JLG Industries, Inc., 306 Pa.Super. 557, 559, 452 A.2d 865, 866 (1982) (citations omitted); see generally Kenny v. Alexson Equipment Co., 495 Pa. 107, 432 A.2d 974 (1981); 42 Pa.C.S.A. § 5322.

In Calder v. Jones, 465 U.S. 783, 788, 104 S.Ct. 1482, 1486, 79 L.Ed.2d 804, 811 (1984), the United States Supreme Court explained:

The Due Process Clause of the Fourteenth Amendment to the United States Constitution permits personal jurisdiction over a defendant in any State with which the defendant has “certain minimum contacts ... such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ Milliken v. Meyer, 311 U.S. 457, 463 [61 S.Ct. 339, 342, 85 L.Ed. 278 (1940)].” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). In judging minimum contacts, a court properly focuses on “the relationship among the defendant, the forum, and the litigation.” Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2579, 53 L.Ed.2d 683 (1977). See also Rush v. Savchuk, 444 U.S. 320, 332,100 S.Ct. 571, 579, 62 L.Ed.2d 516 (1980). The plaintiffs lack of “contacts” will not defeat jurisdiction, see Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 779-781, 104 S.Ct. 1473, 1480-1482, 79 L.Ed.2d 790 (1984), but they may be so manifold as to permit jurisdiction when it would not exist in their absence.

Applying the aforementioned law, we find that the lower court was correct when it ruled that Fagel lacked sufficient minimum contacts with Pennsylvania so as to subject him to the exercise of personal jurisdiction. Instantly, both Fagel and Westhead are residents of California. Fagel has essentially no ties to the Commonwealth, except that his clients in the case of Gathers, et al. v. Loyola Marymount, et al., are residents of Pennsylvania. The allegedly defamatory statements concerned a lawsuit pending in California Superior Court and were uttered in California to members of the California press. Although Westhead has some contacts with Pennsylvania, they are not so “manifold” as to warrant jurisdiction in the present circumstances, since Fagel has essentially no contacts with this forum. Fagel’s contacts with the Commonwealth are not sufficient for him to “reasonably anticipate being haled into [Pennsylvania] court” to answer for the truth of his statements. Calder v. Jones, 465 U.S. 783, 104 S.Ct. at 1487, quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980).

Westhead compares this case to that of Calder v. Jones, supra. Therein, the United States Supreme Court found personal jurisdiction was proper in California over Florida defendants. The Florida defendants had written and edited an article in Florida which was published in the National Enquirer, a national magazine having its largest circulation in California. The plaintiff, a professional entertainer who lives and works in California and whose television career was centered there, was the subject of the allegedly defamatory article. The Supreme Court found personal jurisdiction was proper because: “In sum, California is the focal point both of the story and of the harm suffered.” Calder v. Jones, 465 U.S. 783,104 S.Ct. at 1486. The Court further explained: “In this case, petitioners are primary participants in an alleged wrongdoing intentionally directed at a California resident, and jurisdiction over them is proper.” 465 U.S. 783, 104 S.Ct. at 1487.

Clearly, our case differs significantly from Calder v. Jones, supra. Fagel's actions were not directed at the Commonwealth of Pennsylvania but rather were directed at California where Westhead is a resident and where the Gathers lawsuit is pending. Even Westhead recognizes this fact since he asserts that Fagel specifically made the statements to influence beneficially his client’s pending California lawsuit. Although Westhead’s reputation in Pennsylvania may have been injured, the focal point both of the harm suffered and the alleged defamatory statements is California. Under the circumstances, we do not believe Fagel’s actions were such that he would reasonably anticipate being haled into Pennsylvania courts to answer for the truth of his statements. Calder v. Jones, 465 U.S. 783,104 S.Ct. at 1487. Personal jurisdiction over Fagel does not lie in Pennsylvania.

Order affirmed.

      . Having determined that in personam jurisdiction does not lie in Pennsylvania, we need not address the issue of forum non conveniens.

      . Although it may have been "foreseeable” that Fagel's statements would be published in Pennsylvania given Westhead’s and Gathers’ ties with the Commonwealth, foreseeability alone is not enough to warrant the exercise of in personam jurisdiction. In Skinner v. Flymo, Inc., 351 Pa.Super. 234, 239, 505 A.2d 616, 619 (1986) citing, Burger King v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985) quoting, World-Wide Volkswagen, 444 U.S. at 294, 100 S.Ct. at 565-66, we stated:
      The critical question in determining whether the defendant has purposely directed his activities at residents of the forum is not whether it was foreseeable that defendant’s activities would have an injurious effect in the forum state, but whether the defendant’s conduct and his connections with the forum state were such that he could reasonably anticipate being "haled” into court there.
      Certainly, Fagel’s conduct in California and contacts with that state may give him reasonable cause to anticipate a defamation suit in California, but certainly not in the Philadelphia County Court of Common Pleas.