author: FRIEDMAN, J.,

text:
    Pepper Construction Co. of Indiana, LLC v. Travelers Indemnity Co. of Conn.

      Krista Kochosky, for plaintiff.

      PaulR. Walker, Daniel P McDyer, and Adam M. Barnes, for defendants.
    March 31, 2011
   FRIEDMAN, J.,

Defendants have filed various preliminary objections to plaintiff’s complaint, which concerns insurance coverage for plaintiff’s involvement in a serious construction accident that resulted in plaintiff being sued by two injured workmen. Plaintiff seeks declaratory judgment relief regarding coverage for the construction site accident and has also included a claim for insurance bad faith. At first, defendant Travelers denied having any duty to defend but later recognized that duty. Travelers now has paid the expenses plaintiff incurred until Travelers supplied plaintiff counsel under the policy. However, Travelers has reserved its right not to indemnify plaintiff in the event a verdict is entered against plaintiff in the underlying suit.

Plaintiff’s complaint consists of seven counts as follows:

Count I Breach of Contract, plaintiff vs. Travelers.
Count II Statutory Bad Faith, plaintiff vs. Travelers
Count III Breach of Contract, Article 9 [of the Pepper/ Waltco Subcontract], plaintiff v. Waltco
Count IV Breach of Contract, Article 10 [of the Pepper/Waltco subcontract], plaintiff v. Waltco
CountV Negligence, plaintiff vs. Sky Insurance, Inc.
Count VI Breach of Fiduciary Duty, plaintiff vs. Sky Insurance, Inc.
Count VII Vicarious Liability, plaintiff vs. Traveler (on the theory that Sky was Travelers’ agent)

According to the complaint, Waltco was Pepper’s' subcontractor; Sky was Waltco’s insurance agent; Waltco purchased general liability insurance from Travelers and named Pepper as an additional insured under that policy. Two persons were injured at the work site and brought actions against Pepper and others. Pepper claims Travelers should indemnify it in full for any award against it in the underlying cases in addition to providing a defense. Pepper also claims that Waltco has a similar obligation under the Pepper/Waltco subcontract. Lastly, Pepper claims that Sky failed to procure appropriate insurance for Pepper as required by the Pepper/Waltco subcontract.

The gist of the preliminary objections of the various defendants is as follows, with the court’s thoughts as to each in parentheses:

PRELIMINARY OBJECTIONS OF THE TRAVELERS INDEMNITY COMPANY OF CONNECTICUT

(1) Since Travelers has now retained legal counsel to represent plaintiff in the underlying actions, and has also now reimbursed plaintiff for its legal costs prior to having assumed the defense, any claim based on the duty to defend is moot and should be dismissed. (We agree.)

(2) As to the demand for Travelers to pay for counsel of plaintiff’s choice, that would be a matter for reimbursement later because plaintiff already has its chosen counsel sitting in on all the proceedings in the underlying actions. (Issue raised is deferred for subsequent motion as discussed later herein.)

(3) As to the claims based on indemnity, those are “contingent, not ripe for adjudication and should be stayed.” (We agree the dollar amount of indemnification is not ripe, but we cannot say at this stage that liability is not yet ripe.)

(4) Lastly, the parties to the underlying actions must be joined herein as they are indispensable parties, without whom the court lacks jurisdiction. (We agree.)

PRELIMINARY OBJECTIONS OF WALTCO, INC.:

(1) The claim regarding the duty to defend is moot since Travelers is providing a defense. (However, if Travelers at some point no longer has the duty to defend because it becomes clear that Waltco provided the wrong insurance coverage for Pepper, the question then becomes whether or not Waltco should then have to take up the cost of defending plaintiff.)

(2) The indemnity claim is not ripe as there has been no judgment entered yet against Pepper in the underlying case. (See comment above re similar preliminary objections of travelers.)

(3) The claims based on the possible inadequacy of the insurance procured is not yet known, so such claims are premature. (We agree.)

PRELIMINARY OBJECTIONS OF SKY INSURANCE, INC.

(1) The statute of limitations bars the two claims against Sky for negligence and breach of fiduciary duty. (For answer and new matter.)

(2) The claims for indemnification are not ripe and should be dismissed or stayed. (See comments re Travelers’ similar preliminary objections.)

DISCUSSION

We already noted during argument that the jurisdictional paragraph (5) of the complaint needs to be amended to reflect that the case is no longer in federal court. The question is whether any other portions of the complaint must be removed or amended.

The most important question is whether or not this court lacks jurisdiction because plaintiff has not joined certain indispensable parties, those who are plaintiffs in the underlying actions as well as any defendants therein (other than Pepper and Waltco). The captions of the underlying cases are as follows:

Nicholas Barney vs. Pepper Construction Group, LLC, a corporation, Pepper Construction Co., a corporation, The Pepper Companies, Inc., a corporation, Pepper Construction

Co. of Indiana, LLC, a corporation, and Waltco, Inc., a corporation vs. Jan Skowvron, individually and t/d/b/a Southwest Crane Rental, and L&J Erection, Inc.

Brian Wright and Ashley Wright, his wife vs. Pepper Construction Group, LLC, a corporation, Pepper Construction Co., a corporation, The Pepper Companies, Inc., a corporation, Pepper Construction

Co. of Indiana, LLC, a corporation, and Waltco, Inc., a corporation vs. Jan Skowvron, individually and t/d/b/a Southwest Crane Rental, and L&J Erection, Inc.

Consolidated at GD 09-16289

The provision of the Declaratory Judgments Act dealing with parties is 42 Pa. C.S.A. §7540(a), which provides as follows:

(a) General rule.-When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party and shall be entitled to be heard.

See also Vale Chemical Co. v. Hartford Accident and Indemnity Co., 512 Pa. 290, 516 A.2d 684 (1986), and Mine Safety Appliances Co. v. Century Indemnity Co., 2 Pa. D. & C. 5th 142 (Allegheny Co. 2007). Based on those cases and the principles set forth therein, we conclude that we do not have jurisdiction because the central question here will be Travelers’ or Waltco’s duty to indemnify Pepper, i.e. to pay Pepper whatever it may be required to pay in the underlying cases. Therefore, those plaintiffs as well as defendants and additional defendants may very well have a right to be heard here.

The Honorable R. Stanton Wettick, Jr., now a Senior Judge of this court, discussed Vale and its meaning in his opinion in Mine Safety. Mine Safety involved objections to the insurer’s counterclaims for broader declarations than those sought by the insured. The insurer’s counterclaims were dismissed based on its failure to join other parties whose interests would be affected, i.e. a class or classes for roughly 23,000 claimants who had sued the insured based on various respiratory diseases suffered.

Here, there are not quite so many additional parties who may be affected, but there are a few who may be entitled to be heard in this dispute and who must therefore be joined.

The parties we believe are needed for us to have jurisdiction are Nicholas Barney, Brian Wright and Ashley Wright, as well as two additional defendants who Pepper joined in the underlying cases, Jan Skowvron individually and t/d/b/a Southwest Crane Rental, and L& J Erection, Inc. If any of them feels they have no interest in the outcome of the instant action, they can so indicate in their answer to the amended complaint.

Assuming plaintiff will join those other parties needed for us to have jurisdiction, we make the following rulings as a guide for drafting the amended complaint.

The amended complaint would be primarily for a declaratory judgment regarding the rights and duties of the various parties under the various portions of the insurance policy as well as under the Pepper/Waltco subcontract, to provide or procure certain types of insurance up to certain limits. Plaintiff should plead facts that make clear what coverage was promised by whom to whom and what was supplied versus what should have been supplied. In the case of plaintiff’s claims against Sky, plaintiff must plead facts sufficient to plead plaintiff’s status as a known third-party beneficiary of Sky’s contractual promises to Waltco.

Since the duty to defend will now track the duty to indemnify, the issue of providing a defense is moot for the declaratory judgment aspect of this case, and any claim for that should not be included in the amended complaint.

We agree that any claim that the action was filed outside the limitations period must be raised in new matter. We therefore overrule the objection of Sky that was based on the statute of limitations, without prejudice.

All defendants contend that the issue of indemnification is not yet ripe because there is no judgment in the underlying actions. We believe that only the amount and the allocation among possible indemnitors is not yet ripe. The duties among the parties regarding indemnification should be ascertainable based on the various agreements and on the relevant law. The objections are overruled as to the duty to indemnify and sustained, without prejudice, as to claims based on a specific amount of indemnity or on the adequacy or inadequacy of insurance coverage.

As to plaintiff’s contention that it should have the right to choose the counsel that Travelers must pay for, we regard that as better suited for a separate motion to the court. Plaintiff should set forth in such a motion all facts material to the continued existence of a conflict of interest between Travelers’ goals and the goals of the plaintiff. We have reviewed the principles outlined in The Rector, Wardens and Vestryman of St. Peter’s Church v. American National Fire Ins. Co., 2002 WL 59333 (E.D. Pa. 2002), and note that, in that case, some claims were admittedly covered and some were not, and also that the insurer insisted on controlling the entire defense, thereby opening the possibility that it could steer the outcome of the case to liability for the count that had no coverage. This was the conflict that gave rise to the insured’s right to choose its own counsel. We cannot tell whether or not a similar conflict still exists here now that Travelers has recognized its duty to defend. It will not be sufficient to plead a mere suspicion that Travelers might try to affect the handling of the case by the current counsel it has finally provided to plaintiff. Facts similar to those in Rector or in the cases which Rector relied on are what would be needed here. Plaintiff is directed to omit the claim for counsel of its own choice from the amended complaint but is permitted to set forth that issue in a motion seeking preliminary mandatory relief, ancillary to this case.

See order filed herewith.

ORDER OF COURT

And now, March 31, 2011, the captioned action for declaratory judgment is hereby dismissed for lack of jurisdiction. Plaintiff has leave to file an amended complaint within 45 days of the date hereof, in accordance with the attached memorandum in support of order.

      . There was no objection to the bad faith claim so that may be repled as otherwise appropriate.


source: Caselaw Access Project

author: SIBUM J.,

license: Public Domain

text:
    Pocono Mountain Regional Police Comm’n v. L.R. Costanzo

      Megan P. Maguire, for plaintiff.

      Harry T. Coleman, Bruce L. Coyer, Nicholas Noel, and Benjamin A. Nicolosi, for defendants.
    March 7, 2011
   SIBUM J.,

This action comes before the court on additional defendant G. & Albert Consultants, P.C.’s (“Albert”) preliminary objections to original defendant L.R. Costanzo Company, Inc.’s (“Costanzo”) amended joinder complaint. A brief history of the case follows.

PlaintiffPocono Mountain Regional Police Commission and Costanzo entered into a written contract on August 31,2001 for the construction of a new police headquarters (the “project”). The project included the construction of a roofing system for the building. Plaintiff filed a complaint against Costanzo on September 28, 2009 for breach of contract, breach of warranty, breach of duty of good faith and fair dealing, and negligence in regards to defects discovered after the construction of the roofing system. Plaintiff alleges Costanzo, as general contractor, was liable to plaintiff for failing to provide an acceptable, leak-proof, structurally sound, and non-defective roof system. Costanzo filed a petition for leave to join additional defendants on June 8,2010. By order dated June 11,2010, the petition was granted, and G. & Albert Consultants, P.C. (“Albert”), Murray Jay Miller Architecture (“Miller Architecture”), and Arthur J. McHale Heating and Air Conditioning Company, Inc. (“McHale”) were named as additional defendants.

Costanzo filed its joinder complaint on June 23, 2010, and Miller Architecture filed preliminary objections on September 13, 2010. Costanzo then filed a three-count amended joinder complaint on September 22, 2010, rendering Miller Architecture’s preliminary objections moot.

In count I of the amended joinder complaint, Costanzo claims that Albert was retained by plaintiff to act as Project Manager on plaintiff’s behalf. Costanzo alleges that Albert’s role as Project Manager was to make sure that the plans and specifications pertaining to the construction of the project were implemented as drawn. Specifically, Costanzo claims that the plans and specifications were, among other things, specific as to the location of the duct work in the attic of the building. Costanzo avers that as a result of Albert’s negligent supervision, the duct work was not properly located in the attic as required by the plans and specifications, and consequently, damage to the building occurred.

Costanzo also avers that each of the additional defendants are solely liable to the plaintiff, or, in the alternative, the additional defendants are jointly and severally liable to Costanzo or liable over to Costanzo by way of contribution and/or indemnification.

McHale filed preliminary objections to the amended joinder complaint on October 13, 2010, challenging the joinder complaint as untimely and in violation of the applicable four-year statute of limitations period. McHale’s preliminary objections were denied by this court’s opinion and order dated January 27, 2011.

Albert then filed preliminary objections on November 24, 2010 on the same grounds as McHale and also on the grounds that the pleading was not sufficiently specific. Both Albert and Costanzo filed a brief in accordance with the local rules of court, however, all parties failed to appear for oral argument on February 7,2011. We are now prepared to decide this matter.

DISCUSSION

In their motion, Albert raises nearly identical issues pertaining to late joinder and the statute of limitations as presented by their co-defendant McHale. Such issues were thoroughly addressed in this court’s opinion and order dated January 27, 2011, and which we incorporate herein. As such, no further discussion is necessary with respect to Albert’s preliminary objection as to the joinder complaint being filed beyond the applicable statute of limitations. We will, however, address Albert’s objections as they pertain to the late joinder of Albert specifically.

With respect to the issue of late joinder, Albert argues that it was prejudiced when it was joined in excess of the sixty-day limit imposed by Pennsylvania Rule of Civil Procedure §2253. Albert maintains that the allegation by Costanzo in its petition for leave to join additional defendants that the filing was delayed because Costanzo had only recently discovered the potential liability of the proposed additional defendants is without merit. Albert argues that Costanzo, as general contractor, knew and dealt with all entities involved in the proj ect and was fully aware of Albert’s potential liability when the problems with the roofing system were discovered. Therefore, Albert avers that the delay is inexcusable.

Albert also argues that it will be prejudiced by the late joinder because record evidence and memory recall may have faded, been destroyed or forgotten due to the passage of time. Albert contends that the information may have been preserved or memorialized had the joinder been timely made. Therefore, Albert requests this court dismiss the amended joinder complaint.

Pennsylvania Rule of Civil Procedure §2253, relating to time for filing a joinder complaint to join additional defendants, provides in part as follows:

(a) Except as provided by Rule 1041.1(e) [asbestos litigation], neither a praecipe for a writ to join an additional defendant nor a complaint if the joinder is commenced by complaint, shall be filed later than
(1) sixty days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof, or
(2) the time for filing the joining party’s answer as established by Rule 1026, Rule 1028 or order of court,
whichever is later, unless such filing is allowed by order of the court or by the written consent of all parties approved by and filed with the court. Pa.R.C.P. §2253(a).

The rule also provides that while only the plaintiff may object to joinder on the ground that the joining party has not shown a reasonable justification for its delay in commencing the proceeding, “any person not previously a party who is joined as an additional defendant may object to the joinder by filing preliminary objections asserting prejudice or any other ground set forth in Rule 1028.” Pa.R.C.P. §2253(b), (c).

Recent amendments to Pa.R.C.P. §2253 seem to abridge the requirements put forth in Kovalesky v. Esther Williams Swimming Pools, 497 A.2d 661 (Pa. Super. 1985), which stated that a petition for late joinder by an original defendant must contain:

(1) some reasonable justification or excuse for the delay;
(2) a statement of the facts alleged to render the proposed additional defendant alone liable, or liable with, or liable over to defendant, or liable to the defendant on a proper cross claim; and (3) allegations that the late joinder will not be prejudicial to the proposed additional defendant. Kovalesky, 497 A.2d at 665 (emphasis added).

Specifically, the amended rule seems to indicate that the burden to show cause before the court can issue an order to join a party after the 60-day limit no longer exists, and that the matter is within the discretion of the court. However, this amendment to the rules does not countermand Prime Properties Development v. Binns, 580 A.2d 405 (Pa. Super. 1990), which held that a late joined party may still challenge their joinder by filing preliminary objections to the joinder complaint, since the initial procedure involves only the parties of record at the time. In fact, the rule specifically states that a late joined party may object on the grounds of prejudice. Pa.R.C.P. §2253(c).

In this case, plaintiff filed its complaint on September 28, 2009 and later filed a praecipe to reinstate complaint on November 13,2009. A copy of the pleading was served by original process on defendant Costanzo on November 30, 2009. Costanzo filed its joinder complaint on June 23, 2010, a period of almost seven months after service of plaintiff’s complaint. Costanzo later filed an amended joinder complaint on September 22, 2010, a date of almost ten months from the date of service of plaintiff’s complaint. From the clear language of the statute, Rule 2253 expressly provides 60-days from the date of service of the original complaint to file a joinder complaint and does not provide for a delay in filing. However, the court may allow late joinder upon a showing that no prejudice exists against the party being joined.

In this case, neither the original nor amended joinder complaint was filed within the 60-day period. Albert asserts that it is prejudiced by this delay. We disagree.

As stated in our prior opinion, the parties have not yet begun the discovery process or retained expert witnesses. There have been no depositions taken or discovery deadlines set. Additionally, the parties, including Albert, attempted to negotiate a settlement of this matter without further litigation. As such, Albert was on notice of possible future litigation. We therefore find that Albert will not be prejudiced by this late joinder.

Finally, Albert claims that the joinder complaint should be stricken for failure to specifically set forth the necessary material facts which would permit Albert to defend itself at time of trial. Albert avers that the amended joinder complaint fails to set forth any legal or factual basis that would support a cause of action against Albert, but rather sets forth a boilerplate adoption of the claims filed by the plaintiff against Costanzo. We disagree.

Pa.R.C.P. § 1028(a)(3) provides that preliminary objections may be filed for insufficient specificity in a pleading. The content of pleadings is governed by Pa.R.C.P. § 1019(a) which requires that “the material facts on which a cause of action or defense is based shall be stated in concise and summary form.” Pa.R.C.P. §1019(a). Pennsylvania is a fact pleading state. Pleadings in a fact pleading jurisdiction serve the purpose of putting an opponent on notice of what he will be called upon to meet at trial and to define the issues for trial. Mansour ex rel. Mansour v. Gnaden Huetten Memorial Hospital, 2007 WL 5234151 (Pa. Com. Pl.), 3 Pa. D. & C.5th 149; Estate of Swift v. Northwestern Hospital of Philadelphia, 690 A.2d 719, 723 (Pa. Super. 1996) (holding that the allegations “must apprise the defendant of the claim being asserted and summarize the essential facts to support the claim”).

“The purpose behind the rules of pleading is to enable parties to ascertain, by utilizing their own professional discretion, the claims and defenses asserted in the case.” Estate of Swift, 690 A.2d at 723. “This purpose would be thwarted if courts, rather than the parties, were burdened with the responsibility of deciphering the causes of action from a pleading of facts which obscurely support the claim.” Id. Therefore, a complaint must not only provide a defendant with notice of the plaintiff’s claim and the grounds upon which it is based, but it must also formulate the issues by summarizing those facts essential to support the cause of action. Youndt v. First National Bank of Port Allegheny, 868 A.2d 539, 544 (Pa.Super. 2005). Apleading is sufficiently specific only if it provides enough facts to enable the defendant to frame a proper answer and prepare a defense. Id. at 544-45.

Inparagraph 6 ofCostanzo’s amendedj oinder complaint, Costanzo incorporates plaintiff’s complaint by reference for the purpose of setting forth a factual background. Costanzo’s amended joinder complaint identifies Albert as being retained by plaintiff to act as project manager on behalf of plaintiff. Costanzo avers that Albert’s role as project manager was to make sure that the plans and specifications pertaining to the construction of the project were implemented as drawn and that, among other things, the plans and specifications were specific as to the location of the duct work in the attic of the building. It was also plead that the duct work was not properly located in the attic as required by the plans and specifications and as a result, damage occurred to the building.

It is clear that the allegations against Albert were that it failed to perform its duties as project manager and as a result, damage occurred to the building for which Costanzo is being held responsible. As such, Albert has sufficient information to prepare an answer to the amended joinder complaint and to defend against the action. Albert’s preliminary objection for insufficient specificity in a pleading pursuant to Pa. R.C.P. 1028(a)(3) will be overruled.

Accordingly, we enter the following order.

ORDER

And now, March 7, 2011, upon consideration of G. & Albert Consultants, P.C.’s preliminary objections to defendant L.R. Costanzo Company, Inc.’s amended joinder complaint, said preliminary objections are overruled. Additional defendant, G. & Albert Consultants, P.C., is directed to file an answer to the amended joinder complaint of L.R. Costanzo Company, Inc. within twenty (20) days.

      . Costanzo filed an “Answer by L.R. Costanzo, Company, Inc. to the preliminary objections filed by G. & Albert Consultants, P.C.” on December 9, 2010. However, review of this document containing argument instead of answers in paragraph form suggests that Costanzo’s “Answer” is in fact a brief in opposition to Costanzo’s amended joinder complaint.


author: FORD, J.,

text:
    Lehman v. Lehman

      Heather Lynne, pro se.

      Alfred G. Lehman IV, pro se.
    April 15, 2011
   FORD, J.,

Father asks that the shared physical custody arrangement that he had with mother for Sydney continue. Father agrees not to have physical contact with 16-year-old Savanna except when Savanna wants that contact. However, father asks that he continue to be designated as a joint legal custodian of Savanna.

Intervenor, Michael Sullivan (grandfather), requests an acknowledgment of his right to intervene in this custody case. He also asks to be named a legal and primary physical custodian of Savanna.

After a hearing conducted on March 9 and March 10, 2011, on various petitions of the parties, the court enters an order today granting mother exclusive legal and physical custody of Savanna. Savanna may have contact with father when Savanna agrees. Grandfather may visit Savanna at such times as grandfather and Savanna agree so long as it is not disruptive of Savanna’s school schedule. As to Sydney, the court orders that the parents share legal custody of her. Mother is made the primary physical custodian with meaningful partial custody rights in father. (No provision is made for grandfather to have a relationship with Sydney in that there is no biological or other relationship recognized in law between grandfather and Sydney.)

In this opinion, I explain the reasons for the entry of today’s order.

PROCEDURAL HISTORY

The case began when mother filed a complaint for custody on January 4, 2010. That resulted in an agreed order on March 31, 2010. Mother filed a petition for modification on April 6, 2010. That resulted in an agreed order on May 17, 2010. Under these orders, the parents shared legal custody of the children. Father was given the right to custodial time with Savanna on those occasions when the parties agreed to it. The parents shared physical custody of Sydney with quite a number of changes between the households each week. Shared physical custody has remained in place from the time of these agreed orders through the hearings just completed. For most of this time, the parents have alternated custody of Sydney each weekday and each weekend.

On May 28, 2010, father filed a petition for contempt against mother. This petition for contempt was one of the subjects of the hearing just completed. The petition is denied with today’s order.

On November 16, 2010, grandfather filed a petition to intervene in this case. In it, he also sought partial physical custody of Savanna or guardianship of her. Grandfather followed that with the filing of a petition on March 10, 2011, the only petition now before me which was filed after the effective date of Pennsylvania’s latest custody statute, 23 Pa.C.S. §§ 5321-5340. In the March lOpetition, grandfather sought shared legal and primary physical custody of Savanna. Grandfather’s petitions were also subjects of the hearing just completed.

Another petition heard at the most recent hearing was mother’s counterclaim for contempt against father which petition was filed on December 9, 2010.

Thus, the matters which I heard on March 9 and 10 were the two petitions for contempt (one by each parent) and grandfather’s petitions for intervention and for custody. The three parties made it clear at the March hearing that they wanted the court to decide basic custody issues and arrangements for the children.

FINDINGS OF FACT

1. Savanna J. Lynne was born on August 17, 1994, to Heather Lynne, mother, and John Sullivan. Michael Sullivan (grandfather) is Savanna’s paternal grandfather. Savanna is currently 16 years old and is a junior at Parkland High School in Lehigh County.

2. Mother and John Sullivan were married but their marriage ended in divorce. Mother later married Alfred G. Lehman, IV, father. Mother and father separated on approximately November 9, 2009.

3. John Sullivan relinquished Savanna for adoption. When Savanna was 11 years old, father adopted her.

4. Sydney, who was bom on May 20, 2005, is the natural child of mother and father. Sydney is five years old and currently attends kindergarten at Allentown’s Jewish Community Center.

5. Mother filed for divorce from father in April, 2010. That divorce action is still pending.

6. Since their separation, mother and father have had periodic rendezvous, which have included sex, until as recently as September, 2010. The rendezvous have occurred despite provisions in orders from the Lehigh County Court of Common Pleas entered on October 4, 2010, in case numbers MD/2686 of 2010 and MD/2687 of 2010. These orders have provisions that father is to have no contact with mother. The orders stem from father’s conviction for harassment of mother. Mother and father were aware of the no-contact provisions in the orders but willfully disregarded them.

7. Both before and after their separation, mother and father have had a stormy relationship. This has included furious arguments by both individuals, some of whichhave occurred in the presence of the children. It has included marijuana and cocaine use by father. It has included father spitting on mother and his directing obscene and crude language at her.

8. At a point approximately three months after the filing of this custody action, through agreed orders, mother and father shared legal custody of Sydney and alternated physical custody of Sydney every day. This changed to alternating physical custody of Sydney every weekday and alternating every weekend. The latter arrangement was still in effect at the time of the hearings just completed. Because of Savanna’s reluctance to be with father, mother and father agreed, as reflected in the orders, that father would only have contact with Savanna when mother and father agreed. Father’s last custodial time with Savanna was in November, 2009. Savanna wants no contact with father. One of the primary reasons is that she considers father to have been abusive to mother.

9. Mother currently resides at 1246 North 22nd Street, Allentown, Lehigh County. She has a nursing degree and various certifications pertaining to real estate. She currently works as a realtor. She works by appointment with clients, but she usually is in her office weekdays from 9 a.m. until 4:30 to 5:00 p.m.. Her employment requires that she travel for one five-day period each year and one two-day period each year.

10. Barbara Buck is the maternal grandmother of both children. She and mother have a close relationship. Mrs. Buck occasionally watches the children. She was an appropriate caregiver for the limited occasions when she was asked to do this. Ms. Buck resides in Allentown. She and mother have indefinite plans to purchase a home together and reside together with the children when mother has custody of them.

11. Father, Alfred G. Lehman, IV, has resided at 316 Brookfield Circle, Macungie, Lehigh County, since December of 2010. This is a two-bedroom, loft apartment. He lives there with Maria McGraw, his girlfriend since July, 2010. (Ms. McGraw did not testify.) They have been living together since October, 2010. Ms. McGraw is pregnant by Mr. Lehman. Her expected deliveiy date is July 31, 2011. Sydney also lives at this Macungie address when father has custody of her. Since mother and father’s separation, Sydney has been introduced to an earlier girlfriend of father and later to Ms. McGraw. Father works at MetLife, 4905 Tilghman Street, Allentown. He has securities licenses. He generally works from 9:00 a.m. to 5:00 p.m., weekdays. He meets with clients by appointment. He works some evenings.

12. Mr. Lehman’s mother, identified at the hearing as Linda, was involved in an incident whereby she unintentionally caused a housefire with a smoldering cigarette. Two individuals died in that fire. It is presently unsafe for Sydney to be left in the exclusive supervision of Linda.

13. Despite the separation by mother and father since November, 2009, despite the court’s no-contact order for father to stay away from mother and despite a pending divorce proceeding, mother and father have had sexual relations on various occasions until September, 2010. Despite their divorce, mother has had sexual relations with John Sullivan at the home of grandfather when mother and John Sullivan visited there over Thanksgiving, 2010.

14. Grandfather, Michael Sullivan, resides in the western part of Pennsylvania in Murraysville, Westmoreland County. He lives there with his wife, Wanda Sullivan, whom he married on August 8, 2008. Also residing in that home are Mrs. Sullivan’s son, the son’s girlfriend, and their 4-month-old child.

15. Grandfather owns his own business. His work hours are flexible. Mrs. Sullivan is an assistant manager of a Verizon store. Both are available, as needed, for Savanna.

16. The tumultuous and inconsistent relationship between mother and father has adversely affected both children in that they have witnessed much of it. Savanna began rebelling against the rules spoken by mother. In the first half of 2010, Savanna began a relationship, which included sex, with a young man identified at the hearing as Matt. Mother put Savanna on birth control. There is a strong suspicion that Savanna used marijuana and alcohol in 2010 based upon admissions that she made to father. Without the permission of the parents, Savanna missed classes at Parkland High School in 2010. She has sneaked out of mother’s residence on several occasions.

17. Before the simmer of 2010, grandfather, Michael Sullivan, had an infrequent relationship with Savanna even though he wanted the contact to be more frequent. Mother has always trusted grandfather. Out of frustration and an inability to fully control Savanna, mother requested of grandfather that he take Savanna with him to Murraysville for the summer of 2010. Grandfather agreed. Notice was given to father, who did not agree with Savanna’s going to Murraysville. Savanna lived at the Sullivan home from June 20, 2010, through the end of August, 2010.

18. The Sullivans are good, principled people. They love Savanna. They provided a nourishing environment for her. They set rules for living in their home, which were explained to Savanna. With some minor exceptions which were properly addressed, Savanna complied with the rules of the home. Savanna held two jobs while living with grandfather. She excelled at both. Savanna and Mrs. Sullivan formed a warm relationship which included heart-to-heart discussions between the two of them. The discussions often involved morality issues including sexual abstinence. Here is Mrs. Sullivan’s description of her chats with Savanna:

I think that there’s, there’s a moral basis that, that’s missing.... [I]n our talks ... I try to explain to Savanna about...saving herself, about being important, about,... the gift that she gives is important. And she looked at me like a deer in the headlights. I have no idea what you’re talking about. I, I would like to help to establish a basis for the rest of her life.

19. Because the summer went well, grandfather wanted Savanna to remain in Murraysville for her junior year of high school. Mother objected to that. Savanna was unsure whether she wanted to return to Lehigh County or remain with grandfather. Mother investigated the possibility of Savanna’s attending an out-of-state boarding school. Mother unreasonably expected grandfather to fund this education. Savanna returned to Allentown and to her junior year at Parkland High School.

20. Savanna has been on medication for unspecified mental health reasons. (There was no competent proof at hearing of mental health issues Savanna may have.) For the past three to four months, she has been engaged in talk therapy. She had an earlier course of talk therapy as well.

21. Savanna knows that mother wants Savanna to reside primarily with her and that grandfather wants Savanna to reside primarily with him. Savanna is unsure which is the better arrangement for her. Savanna’s ambivalence about where to live stems from a variety of factors including her love for her mother, her love for the Sullivans, the good things that have happened in Murraysville, the good things that are happening in Allentown, and her concern about Sydney.

22. Because of her young age, the judge did not have the opportunity to meet Sydney. Sydney loves both of her parents. Despite that, there is some anxiety in Sydney that she displays when father’s custodial periods with her are about to begin. Savanna has noticed this. The combination of Savanna’s seeing this reaction in Sydney combined with the outbursts that Savanna has seen by father causes Savanna to be deeply concerned for Sydney’s welfare. This creates a difficult sense of powerlessness in Savanna. Her wanting to protect Sydney from what she sees as aggressive behavior by father adds to Savanna’s difficulty in deciding where she wants to live.

23. Savanna is a beautiful, articulate, and personable young woman. Although she had the various difficulties in 2010, which were explained previously, good things have happened in her life in Lehigh County. She had difficulties with her grades at the beginning of this academic year. She made progress since that low point. She has competed in a cake decorating competition through school and has won at various levels of the competition. At the time of the hearing, she was continuing in that competition. Savanna has a circle of close, longstanding friends and seems to enjoy Parkland High School, which she has attended for each of her high school years.

24. Sydney is doing well academically in kindergarten; however, she misbehaves by hitting other students. The parents acknowledge that Sydney could benefit from therapy and they agreed Sydney should receive therapy from Maria at Cooper Psychological. Nevertheless, neither party has placed Sydney in therapy.

25. There are many beneficial events, activities, and conversations that mother has with both Sydney and Savanna. The same is true about the time that father spends with Sydney.

26. Father admitted the use of cocaine and marijuana in the past. He was not believable about when that usage stopped. There is a concern that he continues to use illegal drugs.

27. Mother has displayed flexibility in accommodating father for reasonable requests for custody schedule changes. Father has not been flexible.

28. To the point of separation, both parents were fully involved in performing parental duties for Sydney. Since separation, the parties still share those parental duties with father’s being less involved than he was before separation. From the time that father formed the parental relationship with Savanna until late 2009 when the parents’ separation occurred, father assisted in the parental duties for Savanna. Fie has not performed any of those since his falling out with Savanna in late 2009.

29. At the point that Savanna and father had the falling out in late 2009, father advised Savanna that he loved her, that he will be present for her when she needs him, but that he will not force her into a continued relationship with him. Savanna has an intense dislike for father and wants no further contact with him.

30. Father wants the present custodial schedule in regard to Sydney to continue, namely, that custody of her be switched every weekday and that the parents alternate weekends. Mother wants to be named primary custodian with some weekday contact for father and alternate weekends for father with Sydney. Both parents agree that Savanna should not have contact with father until Savanna wants to have such contact.

31. The present shared custody arrangement is chaotic and unstable for Sydney based upon the almost daily transfer of Sydney between residences, Sydney’s behavioral problems in school, the lack of therapy for Sydney, and, particularly, the unpredictable conduct of the parents.

DISCUSSION AND CONCLUSIONS OF LAW

The first issue I address is grandfather’s petition for legal and physical custody of Savanna. Before addressing the merits of this petition, I must determine whether grandfather has standing to seek custody of his granddaughter.

According to 23 Pa.C.S. § 5314 (now 23 Pa.C.S. § 5326), a grandparent lacks standing to sue for custody “if the child has been adopted by a person other than a stepparent or grandparent. Any...rights granted pursuant to this section prior to the adoption of the child shall be automatically terminated upon such adoption.”

Savanna was adopted by her then stepfather, Alfred Lehman. Thus, under 23 Pa.C.S. § 5314, grandfather is not precluded from filing his custody petition. See also Rigler v. Treem, 660 A.2d 111 (Pa. Super. 1995).

Because grandfather has standing to bring the present petition for legal and physical custody of Savanna, the next question is whether the circumstances exist for him to be granted custody.

The applicable Pennsylvania statute reads:

The following individuals may file an action under this chapter for any form of physical custody or legal custody:
(3) A grandparent of the child who is not in loco parentis to the child:
(i) whose relationship with the child began either with the consent of a parent of the child or under a court order;
(ii) who assumes or is willing to assume responsibility for the child; and
(iii) when one of the following conditions is met:
(A) the child has been determined to be a dependent child under 42 Pa.C.S. Ch. 63 (relating to juvenile matters);
(B) the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or
(C) the child has, for a period of at least 12 consecutive months, resided with the grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, in which case the action must be filed within six months after the removal of the child from the home. 23 Pa.C.S. § 5324.

The comment of the Superior Court in Martinez v. Baxter, 725 A.2d 775 (Pa.Super.1999), about 23 Pa.C.S. § 5313 (the former version of 23 Pa.C.S. § 5324) is helpful. According to the Superior Court, the

[legislative intent in enacting [23 Pa.C.S. § 5313] is obviously to provide a basis and procedure for grandparent to obtain physical and legal custody of a grandchild in the unfortunate circumstances confronting many grandparents today: when their own children or individuals in their children’s households are abusive or neglectful to their grandchildren, whether due to alcohol or substance abuse or mental illnesses resulting in therefrom. Martinez v. Baxter, 725 A.2d at 778.

Grandfather meets the first requirement for custody under Section 5324. Although father objected to Savanna’s spending the summer of 2010 with grandfather, grandfather’s caring for Savanna this past summer was not only with the consent of mother, but also at her request.

As to the second requirement stated in Section 5324, grandfather has assumed responsibility for Savanna in the past and has demonstrated that he is capable of doing so in the future. Grandfather and his wife, Mrs. Sullivan, provided wonderful care for Savanna throughout the summer of 2010. They are willing to subordinate aspects of their comfort to provide proper guidance and nurturing for Savanna. Any child could only benefit from being in the care of Mr. and Mrs. Sullivan. Grandfather has genuine concern for Savanna. He loves Savanna and the feeling is mutual.

There is a third requirement for grandfather to be named the custodian of Savanna. Although there are three methods by which grandfather could meet the third requirement, only one of these is potentially applicable in the present case. Grandfather argued at the hearings, through his attorney, that he “deems it necessary to assume responsibility for (Savanna) who is substantially at risk due to parental abuse, neglect, drug or alcohol abuse, or mental illness.”

The evidence does not demonstrate that Savanna is at risk through any of these forms of parental misconduct or deficiencies. Despite poor example by mother on some occasions and mother’s frustration with Savanna, mother has never abused or neglected Savanna. There is no hint that mother abuses drugs or alcohol. There is no evidence that mother suffers from mental illness. Thus, grandfather is not entitled to legal or physical custody of Savanna.

With grandfather’s ineligibility to be primary custodian of Savanna, it is proper that Savanna be in the exclusive custody of mother. Mother and father have agreed to this. The agreement is appropriate. Mother clearly loves Savanna and wants what is best for her. Savanna loves mother. Savanna feels safe in mother’s home and she is comfortable there. She enjoys many of her interactions with mother.

Realistically speaking, mother must have sole legal custody of Savanna. Savanna has little to no respect for father. She does not want father involved in her life at all. Savanna has reached this point based upon bad acts by father that Savanna personally witnessed. Further, the relationship between mother and father is fraught with problems. That mother receives sole legal custody does not mean that mother should not keep father informed of Savanna’s progress and significant events in her life. Mother must do this.

There is another significant reason that Savanna should remain with mother and it is Sydney. There is a strong policy in law that, in the absence of compelling reasons to the contrary, siblings should be raised together whenever possible. Johns v. Cioci, 865 A.2d 931, 942 (Pa.Super.2004); Cyran v. Cyran, 566 A.2d 878, 880 (Pa. Super. 1989). Although Savanna and Sydney have the typical ups and downs of siblings, Savanna loves Sydney, is devoted to her, and is protective of her. Both children would suffer if they were separated over an extended period.

Unfortunately, Sydney has also been subjected to the antics between mother and father. Savanna described the entire situation as “chaotic.” Substantially contributing to the lack of organization in Sydney’s life is the disruptive weekday custodial schedule for Sydney. She switches between the residences of the parents almost every day. With today’s order, the court eliminates an element of what has been at times an unsettled life for Sydney. With mother’s being made primary custodian, and father’s being given significant partial custody, Sydney will benefit substantially from this far less hectic schedule.