author: CONNELLY, J,

text:
    J.F. v. D.B.

      C.P. of Erie County,
    no. 15061-2003.

      Melissa H. Shirey, for plaintiff.

      Joseph R Martone, for defendant.
    April 2, 2004
   CONNELLY, J,

PROCEDURAL HISTORY

This unusual matter comes before the court primarily on the issue of standing for child custody. At the center of the custodial dispute are male triplets A, B and C, bom to a surrogate mother not genetically related to them and a biological father whose sperm fertilized the three donor eggs that created them.

On December 11, 2003, the plaintiff, biological father, J.F., filed a complaint for sole custody and motion for special relief. The Honorable John J. Trucilla issued an order granting temporary custody of the triplets to the defendant, surrogate mother, D.B. The order also provided five days a week visitation for the plaintiff and his companion E.D. The order specifically did not waive defendant’s standing claims, which were to be heard later before this court. On December 16,2003, defendant filed an answer with a counterclaim for custody. The following day, the Honorable Elizabeth K. Kelly cancelled that parties’ scheduled custody conciliation sua sponte, awaiting this court’s determination.

Hearings were held before this court on December 22, 2003 and March 11, 2004, solely on the issue of standing. Briefs and supplemental briefs were submitted to the court on December 29, 2003 and March 12, 2004, respectively.

FINDINGS OF FACT

Given the already complicated history of this case, a time line of the relevant facts is necessary. At the end of 2001, D.B., interested in the idea of being a surrogate mother, found and applied online to Surrogate Mothers Inc. (SMI), a private surrogacy agency based in Indiana. SMI matched D.B. with J.F. and E.D., his paramour, to be a gestational surrogate. A gestational surrogate is a woman who carries implanted embryos, created by donor eggs fertilized by the biological father’s sperm, in her womb until birth.

In April 2002, D.B. and E.D. met for the first time. J.F. was not present for this meeting. During July and August 2002, J.F., D.B. and her husband, and the egg donor, J.R., signed and notarized a surrogacy contract drawn up by SMI director and attorney, Steven Litz. At the end of 2002 and beginning of 2003, the parties underwent extensive medical and psychological testing.

In April 2003, D.B. was implanted with three embryos in Cleveland, Ohio. J.F. and E.D. were present for this procedure. D.B.’s pregnancy was confirmed in May and shortly thereafter it was discovered that she was carrying triplets, with a tentative due date of December 3,2003. Hearing testimony revealed this to be a very unusual situation because normally only one embryo may take, not all three.

From May to November 2003, D.B. attended doctor’s visits every two weeks in Erie, Pennsylvania. J.F. and E.D. attended the first few visits until D.B.’s doctor asked them to stay in Cleveland. Per doctor’s orders in June, D.B. quit her job to go on bed rest. From July to November, D.B. remained on bed rest. During this time, she requested that J.F. and E.D. pay her $1000 per month to cover her expenses, including housekeeping, a babysitter for her three children, and lost wages from quitting her job. J.F. and E.D. agreed and mailed checks of $500 to D.B.’s home address every two weeks. They, in particular E.D., also remained in frequent phone contact with D.B. about her condition.

In September 2003, Hamot Medical Center was informed via letter from SMI, that D.B., a surrogate mother, was choosing to give birth to triplets at their hospital and to make arrangements as needed. Hamot was also told to expect a court order accompanying the intended parents, J.F. and E.D. that would give them legal custody of the triplets after their birth. At that time, according to witness Paul Huckno, head of risk management at Hamot, the hospital had never dealt with a surrogate pregnancy before and had no specific policy in place governing such.

On Wednesday, November 19,2003, at approximately 10 a.m., D.B. gave birth to triplets by C-section at Hamot. The babies were slightly premature at 35 weeks old and had some minor medical problems typical of their age. They were placed in the neonatal intensive care unit (NICU) under the care of doctors Jonathan and Michelle Kay Chai.

J.F. and E.D. were called at 8 a.m. on November 19 to inform them that D.B. was in labor. They arrived at Hamot that night between 7 and 8 p.m. from Ohio, with no court order. Hamot staff then employed their normal procedure of allowing the birth mother to consent to any and all visitors. From her hospital bed, D.B. consented to J.F. and E.D. seeing the triplets. At that time, D.B. testified that she fully expected J.F. and E.D. to take care and custody of the triplets and she would return home without them.

The following days, November 20-24, E.D. maintained phone contact with Hamot NICU staff, checking on the triplets’ condition and making appointments to visit them again that weekend. J.F. helped her complete legal and medical insurance paperwork and bought a mini-van with three car seats, as well as clothes, toys, and other things for the triplets.

On Saturday, November 22, D.B. was discharged from the hospital. She received a call from E.D. saying they were very “busy.” E.D. made an appointment by phone with Dr. Jonathan Chai for November 22 to undergo sleep apnea monitor training for the triplets. The appointment was cancelled the next day because two triplets were put on oxygen by Dr. Michelle Chai. Both Doctors Chai later testified that cancellation of the appointment did not bar J.F. and E.D. from visiting the triplets. Meanwhile, D.B. continued to receive updates on the triplets’ progress from her mother, a Hamot employee, who would stop by to check on them.

On Monday, November 24, E.D. called Hamot and scheduled monitor training. E.D. also called D.B. and said she and J.F. visited the triplets that weekend. The next day, D.B. called Hamot NICU to check on the triplets and discovered that E.D. and J.F. never visited the triplets that weekend. D.B. then called SMI concerned about this information.

On Tuesday, November 25, E.D. called Hamot for an update and indicated that she and J.F. would arrive at the hospital that evening. The same day, D.B. returned to Hamot to meet with several staff members, including Dr. Michelle Chai, NICU nurses, and social workers, about the triplets and whether she could take them home herself. She expressed concerns about the lack of visits from the intended parents, the fact that no names had been selected for the triplets, and E.D.’s apparent lie about visiting them. At the conclusion of the meeting, D.B. revoked her consent for J.F. and E.D. to visit the triplets and prepared to take them home with her. According to the testimony at the hearing from various Hamot staff members, no one encouraged or convinced D.B. that she should take the triplets home. Rather, it appears to have been her own idea.

Hamot set up “nesting” with D.B., her husband, and the triplets for that night (November 25). Nesting allows the parents or caretakers to care for their babies overnight, use the apnea sleep monitors, etc. as they would at home, but with hospital staff nearby to assist them with any problems and emergencies. D.B. and her husband also completed monitor training that day. D.B. did not call J.F. and E.D., testifying she assumed SMI would call them about her decision.

That evening, J.F. and E.D. arrived at Hamot and were met by security. They were informed that the triplets had been discharged to D.B. Upon returning home to Ohio, E.D. called D.B. and left a message, asking, “What’s going on?” E.D. and J.F. also received a message from SMI Director Steven Litz, informing them of D.B.’s decision. On Thursday, November 27, the triplets were officially discharged to D.B.

From November 27 to December 11, 2003, D.B. received two phone calls from J.F. and E.D., which she did not return because she was “upset” and “angry.” J.F. and E.D. did not attempt to visit the triplets, claiming they did not know where they were until the December 11 court hearing before Judge Trucilla.

According to D.B.’s testimony at the hearing, J.F. and E.D. have only visited the triplets at D.B.’s residence two or three times a week, often at inconvenient times, instead of the allowed five visits per week. J.F. and E.D. testified that D.B. often cuts their visits short. D.B. also testified when J.F. and E.D. take the triplets with them, they often return them in soiled clothing and dirty diapers; E.D. often insists on feeding them, even when they have just been fed; and J.F. often sits silently or watches television, and once even fell asleep. D.B. further testified about increasing tension and conflicts between herself, her husband, and J.F. and E.D. whenever they visit. J.F. and E.D. maintain that they still intend to be parents to the triplets. The matter is now before the court.

CONCLUSIONS OF LAW

For purposes of better understanding of the terms involved in this case, the court defines the following:

Gestational surrogate/carrier — A woman who carries a fetus not genetically related to her for the purpose of delivering it to the intended parents. The embryo carried is created by either the intended father’s sperm or donated sperm fertilizing either the intended mother’s harvested egg or a donor egg. The resulting embryo is implanted through in vitro fertilization into the surrogate’s womb where it gestates until birth.

Biological/genetic parent — A person who shares a genetic connection to a child. They are the contributor of genetic material that creates a child. Some biological/ genetic parents do not assume custody and/or parental duties for that child (i.e. a biological parent who gives up child for adoption at birth).

Intendedparent(s} — A person (or couple) who intends to take custody of and assume all parental rights and responsibilities to a child bom via surrogacy, given up for adoption, etc. Some intended parents may be genetically related to the child through sperm or egg donation.

Surrogate parenting agreement — A contract between a surrogate mother and intended parent(s) which manages the surrogacy arrangement, including legal, financial, medical, documentary, etc. details. Some surrogate parenting agreements allow fees for the surrogate mother, if not prohibited by state law. Private agencies and attorneys may draw up the agreements while some states require a court to approve them.

Parent — The lawful father or mother of a person. Includes anyone entitled to take under a child’s estate, natural parents, adoptive parents, illegitimate parents, or any individual or agency acting as child’s guardian.

Mother — A woman who has borne a child, includes maternity during pre-birth period.

Egg donor or sperm donor — A person who donates genetic material (female donates eggs, male donates sperm) usually for a fee to help others have children. Donors are often anonymous and usually give up any parental rights they may have to a child they may help create.

I. Surrogacy Law in Pennsylvania

With these terms in mind, the court now turns to the issue at bar — whether a gestational surrogate like D.B. has standing to pursue a custody action against a biological parent like J.F. The only case in Pennsylvania to address a surrogate mother’s standing is Huddleston v. Infertility Center of America Inc., 700 A.2d 453 (Pa. Super. 1997), a negligence and wrongful death case, but it is barely on point.

In Huddleston, a surrogate mother entered into a surrogate parenting agreement with a biological father, a single man. A month after birth, the child died as a result of the biological father’s abuse. The surrogate mother filed suit against the fertility clinic that had arranged the surrogacy, alleging that the clinic’s negligence in choosing the biological father caused the wrongful death of the child. The trial court found that the surrogate mother had no standing because she was not the child’s legal parent. On appeal, the Superior Court found that the surrogate mother had standing, mostly because no one had challenged her standing to seek letters of administration for the child’s estate. Further, the court found that the biological father’s abusive actions were foreseeable and that the clinic had a duty of care to screen its surrogacy applicants for potential negative characteristics.

Since no Pennsylvania cases relating to surrogacy existed at that time, the Huddleston court relied on a Sixth Circuit case, Stiver v. Parker, 975 F.2d 261 (1992), which held a surrogacy agency liable for allowing surrogate mother to be infected by biological father’s untested semen. The court determined that the agency had a “special relationship” with the surrogate mother and a duty of care to reduce harm to her and the child she carried.

However, Stiver is no more on point to the case at bar than Huddleston. As the trial court in Huddleston stated, “[T]he absence of judicial precedence, and . . . legislative offerings, point out that there is no articulated fixed policy on many surrogacy issues in Pennsylvania at this time.” Huddleston v. Infertility Center of America Inc., 31 D.&C.4th 128, 144 (1996).

This court is inclined to agree. Its own research has revealed very little stated policy regarding surrogacy in Pennsylvania. The last proposed surrogacy legislation was in 1997, H.B. 527 P.N. 590, a bill introduced in the House. H.B. 527 proposed legalizing surrogate parenting agreements with court review and approval. If the parties did not seek court approval, a fine of up to $20,000 could be imposed and any agreement made would be null and void. The bill also required criminal background checks and extensive medical and psychological testing for all parties involved. Upon birth of the child/children, the surrogate mother’s parental rights would terminate immediately and the intended parents would take full legal custody. If, for any reason, prior to the birth the surrogate parenting agreement was terminated, written notice would be given to the court and the surrogate mother would become the legal mother of the child/children. Unfortunately, H.B. 527 succumbed to the fate of several predecessors and died in judiciary committee.

While it is premature to say that the Pennsylvania Legislature intended that a surrogate mother have legal custody in situations where there is no surrogacy contract or where it has been declared void, the possibility has at least been considered by the legislature and the court takes that into minor consideration in issuing its decision. Without an actual surrogacy statute in place however, the court can only strongly urge the legislature to address the issue as soon as possible to prevent more complicated cases such as the one at bar.

II. Surrogacy Laws in Other States

Since this is a case of first impression in Pennsylvania, the court must look to the decisions rendered in sister states. In general, 31 states have either some type of surrogacy statute or case law setting forth the legality or illegality of surrogate parenting arrangements. Nineteen states, including Pennsylvania, are generally silent about surrogacy or do not have surrogacy laws or cases yet.

Sixteen of those 31 states have made surrogacy itself or surrogacy contracts illegal. Those states that make surrogacy (e.g. paid surrogacy or baby selling) expressly illegal are Delaware, Iowa, Michigan, New Mexico, New York, Oregon, Utah, Washington D.C. and Wisconsin. Surrogacy is exempt from criminal baby selling statutes in Iowa, Alabama and Washington. Those states that ban surrogacy contracts are Arizona, Connecticut, Indiana, Louisiana, New Jersey, North Dakota and Tennessee. Despite the fact that paid surrogacy contracts are illegal in New Jersey, free surrogacy volunteers (usually family members) are permitted.

Seven states generally allow surrogacy, with or without a contract, fees, etc. They are Arkansas, California, Hawaii, Illinois, Massachusetts, Ohio and West Virginia. Two of them, Massachusetts and California, require pre-birth orders that terminate the surrogate mother’s parental rights and give custody to the intended parents. Illinois allows all “parents” to be listed on birth certificate, including the surrogate mother or gestational surrogate, the intended parents, the biological parents, and/or sperm and egg donors.

Florida, New Hampshire, Virginia and Arkansas allow surrogacy contracts and mothers, with the first three states requiring that the intended mother be infertile. New Hampshire and Virginia courts review and approve surrogacy contracts while the Arkansas statute presumes a child born to a surrogate mother to be the child of the intended parents, not the surrogate mother.

California appears to be the state with the most surrogacy procedures, cases, and clinics. It also appears to have some of the most complicated surrogacy case law and statutes. Generally, a surrogacy arrangement requires a contract between the parties prior to any medical procedures being performed. Then the intended parents must obtain a judgment of maternity and paternity prior to the child’s birth. This judgment makes the intended parents the legal custodial parents. The surrogate mother, with or without a contract, is not the legal mother in California.

Such contracts are not barred by public policy as held in Johnson v. Calvert, 5 Cal. 4th 84, 851 P.2d 776, 19 Cal. Rptr. 2d 494 (1993). In that case, the court ruled that the genetic parents were determined to be the natural, intended parents of the gestated child. The parties’ intentions were foremost in determining who would have legal custody of a child conceived by surrogacy. This “intent test” continues to be followed in California and by other states, including Pennsylvania’s neighbor, Ohio. See Belsito v. Clark, 644 N.E.2d 760 (1994), where a common pleas court determined those with genetic ties to a child conceived by surrogacy were the intended parents.

The Connecticut Supreme Court in Doe v. Doe, 244 Conn. 403, 710 A.2d 1297 (1998), granted a custody trial concerning a child conceived by surrogacy and related biologically only to the father/husband. The court decided to treat the wife as a third party with standing (the surrogate mother and egg donor had terminated their rights). Ultimately, the court determined that the best interests of the children would control, no matter the legal standing of the parties.

In Massachusetts, the case of R.R. v. M.H., 426 Mass. 501, 689 N.E.2d 790 (1998), set forth a requirement of three or more days for a surrogate mother to decide whether to terminate her parental rights, a time period similar to the state’s adoption process. The Massachusetts Supreme Court found the surrogacy contract to be unenforceable because the surrogate mother received a fee for her services, which was against state public policy. The court expressed a preference for court-approved surrogacy contracts, or at the very least, some type of surrogacy statute passed by the legislature:

“We recognize that there is nothing inherently unlawful in an arrangement by which an informed woman agrees to attempt to conceive artificially and give birth to a child whose father would be the husband of an infertile wife. We suspect that many such arrangements are made and carried out without disagreement .... The mother and father may not, however, make a binding best-interests-of-the-child determination by private agreement. Any custody agreement is subject to a judicial determination of custody based on the best interests of the child .... A surrogacy agreement judicially approved before conception may be a better procedure .... A Massachusetts statute concerning surrogacy agreements, pro or con, would provide guidance to judges, lawyers, infertile couples interested in surrogate parenthood, and prospective surrogate mothers.” At 512-13. (emphasis added)

In a Massachusetts case addressing the custody of frozen embryos, the court in A.Z. v. B.Z., 431 Mass. 150, 725 N.E.2d 1051 (2000), remarked:

“We glean from... statutes and judicial decisions that prior agreements to enter into familial relationships (marriage or parenthood) should not be enforced against individuals who subsequently reconsider their decisions. This enhances the ‘freedom of personal choice in matters of marriage and family life. We derive from existing state laws and judicial precedent a public policy in this Commonwealth that individuals shall not be compelled to enter into intimate family relationships, and that the law shall not be used as a mechanism for forcing such relationships when they are not desired. This policy is grounded in the notion that respect for liberty and privacy requires that individuals be accorded the freedom to decide whether to enter into a family relationship.’ ” At 162. (citations omitted)

ANew Jersey case, J.B. v. M.B., 751 A.2d 613 (2000), similarly decided that a contract to procreate is against state public policy and agreements entering into or terminating family relations should not be enforced against unwilling parties. New Jersey is also home to the infamous In re Baby M, 109 N. J. 396, 537 A.2d 1227 (1988), case, which caused many states to either criminalize or regulate surrogacy. Since the surrogate was genetically related to the child she gave birth to, the Baby M case is not on point to the case at bar.

Based on the above cases, it appears to this court that the best way to address this matter is in terms of contract law and public policy.

III. Legality of the Surrogacy Contract

While the court is encouraged by several states’ approach to surrogacy via contract law regulation, it is keenly aware that there is no Pennsylvania statute in place yet. Still, the court is inclined to look at the surrogacy contract entered into during July and August 2002 that started this entire sequence of events. (Plaintiff’s exhibit B.)

The parties to the contract are the plaintiffs, J.F. and his paramour E.D.; the defendant, D.B., and her husband; J.R., the egg donor; SMI and its director/attomey, Steven Litz. The court again notes that J.R. is not considered a party to this action, despite the fact that the contract refers to her together with D.B. The court reviews some of the more interesting sections of the contract as follows:

Section 3 of the contract informs D.B. in capital letters that she is not consenting to termination of her parental rights or adoption at that time, just her intention to do so after the children are bom.

Section 9 states biological father’s obligations, except those required by law of a biological parent, will cease if the surrogate mother, D.B., refuses to abort or selectively reduce any of the fetuses she carries at J.F.’s request. The section does not state who would then take legal custody of the children once they were born.

Section 15 provides in the event that custody is awarded to surrogate mother, the other parties are indemnified and should be reimbursed any monies paid to the surrogate mother.

Section 20 states that the biological father, J.F., is legally responsible for the children, even if they have abnormalities, unless a paternity test reveals that the children are not J.F.’s. There is no provision providing for a legally responsible mother or other co-parent, especially if the children are not his.

Section 21 is where J.F. names E.D. to be his successor should something happen to him, but the space for a successor to E.D. is left blank. Again, there is no provision for whom takes custody of the children then.

The Release and hold harmless agreement, the last pages of the contract, appears to bar D.B. and her husband from seeking custody of the children. (Plaintiff’s exhibit B, p. 9, ¶1.) It reads in relevant part: “Upon the birth of the child, Surrogate and/or E.D. [egg donor] will surrender any custody rights to the child to the biological father [biological father] whose identity (unless otherwise agreed upon) I/we may never know.” [emphasis added]

These contractual inconsistencies and the failure to name a legal mother for these children greatly trouble the court. Section 3 and the Release and hold harmless agreement contradict each other when D.B. agrees that she intends to terminate her rights and then agrees that she will surrender her rights. Sections 9 and 20, 20 and 21, 15 and 20, and 9 and 20 are in conflict with each other in that section 20 says J.F. will be legally responsible for the children but the other sections undermine that responsibility by allowing it to “cease” or be “indemnified.” At no time does the contract state who the legal mother of the children shall be, particularly if something were to happen to J.F. and E.D., or if they were to decide not to take custody of the children.

Pennsylvania has traditionally recognized that a child has two legal parents, usually a mother and father. According to the aforementioned definition of “parent,” it includes anyone entitled to take under a child’s estate, natural parents, adoptive parents, illegitimate parents, or any individual or agency acting as a child’s guardian. In some circumstances, there may only be one legal parent (i.e. death or abandonment). However, there cannot be three legal parents. See Beltran v. Piersody, 748 A.2d 715 (Pa. Super. 2000), dissenting opinion by Olszewski, J.:

“I also note that it is impossible for J.P. to have three parents. While a child may have two mothers or two fathers, see J.A.L. v. E.P.H., 453 Pa. Super. 78, 682 A.2d 1314 (1996) (parties by their conduct created a parent-like relationship between appellee’s homosexual partner and her biological child, thus giving partner standing to seek custody), he cannot have two fathers and one mother. See Michael H., 491 U.S. at 130-31, 109 S.Ct. 2333 (stating that ‘multiple fatherhood has no support in the history or traditions of this country’). Until our legislature recognizes a different structure to the basic family unit, J.P. has two parents — Piersody and Mother.” Beltran at 72 n. 3.

Thus, J.F., E.D. and D.B. cannot all be parents simultaneously. Since E.D. is not actually a plaintiff/party to this action nor is she related to the triplets, the court excludes her from consideration.

Children should be able to identify who their parents are, even if they are not biologically or genetically connected to them. As the court in J.C. v. J.S., 826 A.2d 1 (Pa. Super. 2003), recently held:

“Estoppel in paternity actions is merely the legal determination that because of a person’s conduct ie.g., holding out the child as his own, or supporting the child) that person, regardless of his true biological status, will not be permitted to deny parentage .... [T]he doctrine of estoppel in paternity actions is aimed at ‘achieving fairness as between the parents by holding them, both mother and father, to their prior conduct regarding paternity of the child. ’

“Warfield v. Warfield, 815 A.2d 1073, ¶8 (Pa. Super. 2003) (quoting Fish v. Behers, 559 Pa. 523, 741 A.2d 721, 723 (1999)). Moreover,

“Estoppel is based on the public policy that children should be secure in knowing who their parents are. If a certain person has acted as the parent and bonded with the child, the child should not be required to suffer the potentially damaging trauma that may come from being told that the father he has known all his life is not in fact his father.

“Hamilton v. Hamilton, 795 A.2d 403, 405 (Pa. Super. 2002) (quoting Fish, 741 A.2d at 724).” At 3-4, (emphasis added) See also, DiPaolo v. Cugini, 811 A.2d 1053 (Pa. Super. 2002) (Hudock, J., dissenting) and Bahl v. Lambert Farms Inc., 572 Pa. 675, 819 A.2d 534, 539 (2003) (“Such estoppel ‘is based on the public policy that children should be secure in knowing who their parents are,’ Brinkley v. King, 549 Pa. 241, 701 A.2d 176, 180 (1997), and, as such, it is designed to protect the best interests of minor children.”).

There is no maternity by estoppel doctrine nor is there any legal definition of maternity, both of which might be suitable for this case since no legal mother has been named for the triplets. The court theorizes that if the doctrine of paternity by estoppel is based on the public policy that a child should know its father, then a doctrine of maternity by estoppel would be based on the corresponding public policy that a child should know its mother as well.

Moving on, a contract is void if it is used to bargain away rights belonging to children. See Sams v. Sams, 808 A.2d 206 (Pa. Super. 2002) (Father/NFL player could not compel his ex-wife/mother to contract away his child support obligation. The court found the agreement to reduce the child support amount was unconscionable, reducing father’s obligation from $3,400/month to $ 1,000/month.), Kesler v. Weniger, 744 A.2d 794, 796 (Pa. Super. 2000) (Biological father and biological mother had long-standing agreement that if she became pregnant, she would not seek any child support from him was void. “It matters not when an agreement to forego support occurred; the right to support is a right of the child, not the mother or father. It cannot be bargained away before conception any more than it can be bargained away after birth, nor can it be extinguished by principles of estoppel.”), and Ferguson v. McKiernan, 60 D.&C.4th 353 (Dauphin Cty. 2002) (Court voided an oral contract between the parties where biological mother would release biological father from his child support obligation if he secretly volunteered to be her sperm donor.).

The contract in the case at bar did precisely the same as the parties attempted in Sams, Kesler and Ferguson, to sign away the rights of the triplets. The court therefore declares the surrogacy contract entered into by the parties to be void as against public policy because it does not provide for a legal mother for the triplets and it allows the parties to bargain away the children’s custody and support rights. A contract is unenforceable if its formation or performance is criminal, tortious, or otherwise opposed to public policy. Espenshade v. Espenshade, 729 A.2d 1239 (Pa. Super. 1999). Courts should not override private contracts unless their terms offend public policy. McIlvaine Trucking Inc. v. W.C.A.B. (States), 570 Pa. 662, 810 A.2d 1280 (2002).

The contract allowed D.B. to sign away her custodial rights without a time period to consider them or a court hearing to address them. That is against Pennsylvania public policy and the contract should not be enforced against her. The decision in Prudential Property and Casualty Insurance Co. v. Colbert, 572 Pa. 82, 813 A.2d 1 Al (2002), explained the concept of contracts and public policy this way:

“Generally, courts must give plain meaning to a clear and unambiguous contract provision unless to do so would be contrary to a clearly expressed public policy....

“Public policy is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest. As the term ‘public policy’ is vague, there must be found definite indications in the law of the sovereignty to justify the invalidation of a contract as contrary to that policy . ... Only dominant public policy would justify such action. In the absence of a plain indication of that policy through long governmental practice or statutory enactments, or of violations of obvious ethical or moral standards, [a cjourt should not assume to declare contracts . .. contrary to public policy. The courts must be content to await legislative action.” At 82-83, 813 A.2d at 750, 752.

In the present case, the court cannot wait for legislative action. But, it can look to the state tradition and public policy regarding children having two parents. Enforcement of a contract will be denied only if it conflicts with the law’s traditional interest in protecting the expectations of the parties, its abhorrence of any unjust enrichment, and any public interest in the enforcement of the particular term. City of Wilkes-Barre v. City of Wilkes-Barre Police Benevolent Ass’n, 814 A.2d 285 (Pa. Commw. 2002).

A, B and C did not hatch, they were bom. They can only identify their father in the contract as J.F., but they cannot identify their mother so easily. It cannot be J.R., the egg donor, because she is not a party to this action. It cannot be E.D. who is not genetically related to them, nor is she even married to J.F. She has contributed nothing more than her presence and her interest in the triplets. That leaves D.B., who like E.D. is not genetically related to the triplets, but carried them in her womb and then gave birth to them. Her every decision prior to their birth has affected them — health, nutrition, prenatal care, etc. In addition, she has not terminated any parental rights she may have to the triplets. She has instead taken the triplets into her home and cared for them along with her three other children. She is more a mother and a parent by her actions than by genetics. She has assumed “maternity” if there were such a legal definition as there exists for “paternity.” Since the contract is void because it does not provide for a legal mother, the court finds D.B. to be the legal mother of the triplets since she carried and bore them and has taken care of them as a natural parent would.

IV. Standing In Loco Parentis

Even if this court did not determine that D.B. is the legal mother of the triplets, she would most likely still have third-party standing in loco parentis. Black’s Law Dictionary defines in loco parentis to be, literally, “in place of parent.” It is also a legal doctrine that allows a person who assumes the duties and rights of a natural parent to have temporary standing in parental matters, such as custody and support, in absence of legal proceedings. Given D.B.’s unusual situation as a gestational surrogate with no genetic tie to A, B, and C, and her previous intentions to give them to J.F. and E.D., she does not neatly fit into any particular category of third party that has tried to claim custodial standing in loco parentis.

Foster Parents

D.B. is like foster parents in that she has no genetic tie to the triplets but has volunteered to take care of them. She is not like foster parents because the state or government agency that places foster children stands in loco parentis, not the foster parents. In addition, SMI, the agency that arranged the surrogacy, is a private agency, not a governmental one. See In the Interest of N.S., K.G., and P.A., 2004 Pa. Super 65, and In re G.C., 558 Pa. 116, 735 A.2d 1226 (1999) (Foster parents acting as de facto parents do not have in loco parentis standing because the foster care agency has relationship with child, not the foster parents.).

Relatives

D.B. might be considered a non-blood related relative to the triplets, like an aunt or uncle or half sibling. See D.N. v. V.B., 814 A.2d 750 (Pa. Super. 2002) (half-sibling had no standing to pursue custody of her younger siblings), Larson v. Diveglia, 549 Pa. 118, 700 A.2d 931 (1997) (uncle who lived with and supported child could not bring child support action against biological father when only his wife, the child’s aunt, had legal custody), and Jackson v. Garland, 424 Pa. Super. 378, 622 A.2d 969 (1993), and Butler v. Illes, 747 A.2d 943 (Pa. Super. 2000) (no standing for aunts because no statute provides for it, unlike grandparents).

All these relatives have been held not to stand in loco parentis to children in their care mostly due to a “void in the law.” Jackson, supra. A surrogate mother like D.B. may also fall into that void if she is not declared to be a legal mother. Grandparents and great-grandparents have standing under the Grandparents Visitation Act, 23 Pa.C.S. §5301 et seq., but that is balanced against the best interests of the children. See In re Adoption of D.M.H., 452 Pa. Super. 340, 682 A.2d 315 (1996), where court awarded custody to adoptive parents who were better for child’s welfare than the biological grandmother.

Stepparents and Same Sex Parents

D.B. is much more like a stepparent or a same sex parent, taking into account her lack of genetic tie and her voluntary care of the triplets. In Parton v. Parton, 36 D.&C.4th 241 (Monroe Cty. 1996), the court granted a stepfather partial custody in loco parentis based on his good relationship with his stepsons. He met the preponderance of evidence burden of proof by showing that he was doing all the things a parent would do, including feeding, bathing, playing and disciplining his stepsons. In Liebner v. Simcox, 834 A.2d 606, 610 (Pa. Super. 2003) another stepfather was granted standing in loco parentis because he provided a “family setting [for the child], irrespective of . . . traditional or nontraditional composition.” The nature of the relationship between parents has no legal significance for in loco parentis standing. T.B. v. L.R.M., 567 Pa. 222, 786 A.2d 913 (2001), and children are not to be treated as the offspring of the biological single parent only. J.A.L. v. E.P.H., 453 Pa. Super. 78, 682 A.2d 1314 (1996). Thus, despite the unusualness of a surrogacy arrangement, J.F. cannot claim to be the sole parent of the triplets. D.B., through her actions, has clearly shown that she is “doing all things a parent would do” and as a surrogate mother has and is creating a nontraditional family setting.

The court also notes a “void in the law” for surrogate mother standing. As the court in L.S.K. v. H.A.N., 813 A.2d 872 (Pa. Super. 2002) (emphasis in original), said, “We recognize this is a matter which is better addressed by the legislature rather than the courts. However, in the absence of legislative mandates, the courts must construct a fair, workable and responsible basis for the protection of children, aside from whatever rights the adults may have vis-á-vis each other.”

D.B. has assumed parental duties when she could have simply taken her surrogacy fee and walked away. She was not legally obligated to provide care or child support, yet she took on those responsibilities willingly and voluntarily. She and her husband went through monitor training and car seat testing and overnight nesting with the triplets. They continue to care for the triplets plus three other children in their home. It does not appear to the court that D.B. was pressured or talked into bringing the triplets home with her or that she is unable to handle the responsibility of being a legal mother to A, B and C.

V. Parental Duties and Wishes

The court disagrees with plaintiff’s argument that D.B. acted in defiance of J.F.’s wishes by taking the triplets home with her and thus should not be granted standing in loco parentis because J.R, as biological father, does not approve. See B.A. v. E.E. ex reí C.E., 559 Pa. 545, 741 A.2d 1227 (1999). The court would point out the unfortunate reality that many custody decisions are made where one party/parent does not approve of the other’s actions and decisions, but must acquiesce because a court has allowed it.

Claims of parenthood and parental disagreement are not enough to defeat standing. As the court in Cardamone v. Elshoff, 442 Pa. Super. 263, 659 A.2d 575 (1995), stated:

“In Pennsylvania, there are three types of custody disputes: parent versus parent; parent(s) versus state; and parent(s) versus third party.... Persons other than natural or biological parents are deemed to be ‘third parties’ for purposes of custody disputes.. ..

“[Factors other than parenthood may] have significant impact on the well-being of the child [and] can justify a finding in favor of the non-parent, even though the parent has not been shown to have been unfit....

“[P]arenthood alone is insufficient to defeat a custody claim raised by a non-parent. The most important issues in a custody dispute are the child’s physical, intellectual, moral, and spiritual well-being.” At 272, 273, 274, 659 A.2d at 579-80. (citations omitted)

In the case at bar and prior to this court’s determination of D.B.’s legal parental status, D.B. is a third party seeking custody against J.F., the biological father of the triplets. As Cardamom held, his claim of parenthood alone is not enough to defeat D.B.’s counterclaim for custody. The court may consider the triplets’ present well-being as well as their future welfare. See Commonwealth ex rel. Bloomfield v. Faxstein, 84 Pa. Super. 243 (1924), where it would be contrary to the permanent well-being of the child to give its parents the custody, the parents’ natural right must give way, and Commonwealth ex rel. Rockey v. Hoffman, 91 Pa. Super. 213 (1927), where parent’s right to custody of infant child must be yielded, if child’s welfare will be more secure elsewhere.

The court heard the testimony of D.B. as to her care of the triplets as well as their condition upon their return from visits with J.F. and E.D., and found her to be credible. Even discounting her testimony, the court also heard testimony from various Hamot medical staff and read their reports regarding the lack of visits from the intended parents and their behavior when they did visit (i.e. arriving late or canceling appointments, the delay in monitor training, nursing staff repeatedly telling E.D. to be quiet or calm down in the NICU). This is more than enough to cause the court some concern regarding J.F. and E.D. and the fulfillment of their parental duties.

As in the case In re C.M.S., 832 A.2d 457 (Pa. Super. 2003), the biological father argued that since he was not aware of the child’s whereabouts, he had no recourse but to wait for the adoption papers. The court determined that the father failed to take any action to overcome the obstacles to assert his parental rights. C.M.S. relied on the Pennsylvania Supreme Court’s decision in In re Burns, 474 Pa. 615, 624-25, 379 A.2d 535, 540 (1977), in making its determination. Burns set forth what parental duties should include:

“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. Thus, this court has held that the parental obligation is a positive duty which requires affirmative performance.

“This affirmative duty encompasses more than a financial obligation; it requires continuing interest in the child and a genuine effort to maintain communication and association with the child.

“[A] child needs more than a benefactor....

“A parent is required to exert a sincere and genuine effort to maintain a parent-child relationship; the parent must use all available resources to preserve the parental relationship and must exercise ‘reasonable firmness’ in resisting obstacles placed in the path of maintaining the parent-child relationship. In re Shives, 363 Pa. Super. 225, 525 A.2d 801, 803 (1987). This court has repeatedly recognized that ‘parental rights are not preserved ... by waiting for a more suitable or convenient time to perform one’s parental responsibilities while others provide the child with his or her immediate physical and emotional needs.’ In re Adoption of Godzak, 719 A.2d 365, 368 (Pa. Super. 1998) (citation omitted).” In re C.M.S. at 462. (emphasis added)

It is obvious from J.F. and E.D.’s testimony that they have an interest in the triplets. J.F. vowed at one hearing to fight for custody “all the way to the United States Supreme Court.” But, their testimony and actions, or rather inactions, belie their professed intentions for these children. They have provided financial support and insurance and amenities that children need, but they have not named the children, have not visited them with regular frequency, did not buy and prepare things for the triplets prior to their birth nor make insurance arrangements, schedule monitor and car seat training, etc. with Hamot in a timely manner. They have not shown this court that they exerted themselves to maintain a parent-child relationship with the triplets, such as going to court as soon as D.B. took triplets home against their wishes, or exercised reasonable firmness in overcoming obstacles, like locating D.B.’s home to visit the triplets or speak with her in person. Even after they obtained a court order allowing them visitation five days a week, they have not fully utilized it. See also, C.T.D. v. N.E.E. and M.C.E., 439 Pa. Super. 58, 653 A.2d 28 (1995) (Delay is arguable abandonment and failure to perform parental duties).

If plaintiff’s counsel is correct that D.B. has custody of the triplets in defiance of J.F.’s wishes, then the court wonders why J.F. and E.D. have not appealed Judge Trucilla’s order. The court also notes that Hamot has never received a court order from J.F. and E.D. allowing them legal access and custody of the triplets. All available resources, including all legal procedures, have not been used by J.F. and E.D. to preserve their parental relationship with the triplets.

Further, in light of E.D.’s little white lies to D.B. and Hamot staff as well as the incredible claim that J.F. and E.D. could not locate D.B. despite mailing checks to her home several months beforehand, the court does not find J.F. and E.D. to be fully believable. Their testimony often appeared to be self-serving and full of excuses, none of which the court is inclined to believe.

CONCLUSION

It is the finding of this court that D.B. is the legal mother of the triplets, A, B and C, due to the fact that no legal mother was provided for in the surrogacy contract. Because the contract encouraged parties to sign away certain legal rights belonging to the triplets, the court finds it to be unconscionable. Thus, the contract is void as against Pennsylvania public policy.

Aside from the court’s determination that D.B. is the legal mother of the triplets and therefore has automatic standing, the court also finds that D.B. has standing in loco parentis to pursue both custody and child support for the triplets. As biological father, J.F. has a legal duty to provide child support even if he disagrees with who has custody of the triplets. The court refers the parties back to custody conciliation with all due haste.

Finally, the court asks that the plaintiff and defendant bear in mind that the best interests of the triplets are most important here. “To say that the child is merely the subject of the proceeding, not a ‘party’ to it, would be to return to the child-as-chattel mentality.” Stapleton v. Dauphin County Child Care Service, 228 Pa. Super. 371, 392, 324 A.2d 562, 573 (1974). (Opinion of Spaeth, J„ overruled on other grounds.) It is the hope of this court that a custodial tug-of-war will not begin here. It is additionally the court’s hope that the legislature will address surrogacy matters in Pennsylvania to prevent cases like this one from appearing before the courts without statutory guidance.

ORDER

And now, to wit, April 2, 2004, after reviewing the testimony and evidence presented, the briefs of counsel, and in consideration of the foregoing opinion, it is hereby ordered, adjudged and decreed that D.B. is the legal mother of the triplets, A, B and C, and therefore has standing to pursue custody. Since no legal mother was provided for in the surrogacy contract and because the contract encouraged parties to sign away legal rights belonging to the triplets, the court finds the contract to be null and void as against Pennsylvania public policy.

Further, D.B. has standing in loco parentis to pursue both custody and child support for A, B and C. As their biological father, J.F. has a legal duty to provide child support even if he disagrees with who has custody of the triplets.

The court further orders that a custody conciliation conference and support conference for the parties be scheduled immediately with the appropriate court related offices. The subsequent hearing dates of April 5, 2004, and April 16, 2004, are hereby cancelled.

      . Despite defendant’s argument demanding proof of plaintiff’s paternity, the court finds defendant to be bound by her previous pleadings acknowledging said paternity. See Tregoning v. Wiltschek, 782 A.2d 1001 (Pa. Super. 2001). Wife who sued former husband seeking custody of child was estopped from challenging husband’s paternity because she had accepted paternity in past.

      . http://www.surrogatemothers.com/expense.html.

      . “Adventures in Babysitting: Gestational Surrogate Mother Tort Liability,” Karen A. Bussel, 41 Duke L.J. 661 (1991).

      . The court does not wish to forcibly include J.R., the egg donor, in this matter, after she has already declined to become involved. As the court views it, an egg donor should be likened to a sperm donor. Because egg donation is a newer medical process than sperm donation, most states have not passed legislation addressing it. However, both donors contribute genetic material to others in exchange for payment, signing away all biological, parental, and other legal rights to their contribution and any child they may help produce. The majority of egg and sperm donations are anonymous proceedings, with neither the donors nor the recipients knowing the other. The donors, by choice and often by contract, choose to be uninvolved in the lives of any children that may result from their donations. For these reasons, the court does not consider J.R. to be a party to this matter. See Ferguson, infra.

      . Doctors Chai are married and both employed in Hamot’s NICU as staff neonatalogists. Both gave deposition testimony for this matter on February 2, 2004.

      . They weren’t discharged with D.B. that day. Paul Huckno testified that this was told to J.F. and E.D. for “safety reasons.”

      . From Black’s Law Dictionary, 1990 ed., http:// www.surrogacy.com/legals/article/checklist/chklstl.html.

      . “Surrogacy and the Law of Pennsylvania,” by Lawrence A. Kalikow, Esq., April 1999.

      . http://www. legis. state.pa. us/search/billsearch. idq.

      . Bills in favor and against surrogacy were also proposed in 1987, 1991, and 1995. None of them survived the judiciary committee. No bill relating to surrogacy is currently before the legislature.

      . http://www.surrogacy.com/legals/states.html, http://www.sunvgacy.com/ le gals/map. html.

      . “Reproductive Surrogacy at the Millennium: Proposed Model Legislation Regulating ‘Non-Traditional’ Gestational Surrogacy Contracts,” James J. Dalessio, 31 McGeorge L. Rev. 673, 2000.

      . Id.

      . http://www.everythingsurrogacy.eom/cgi-bin/main.cgi7agencies#CA, a list of California surrogacy clinics and associated law firms.

      . “Thomas Pinkerton: The San Diego Surrogacy Case” Transcript of chat with CNN.com on August 15, 2001. Pinkerton is a surrogacy attorney who practices in California.

      . Black’s Law Dictionary, 1990 ed.

      . Id.


source: Caselaw Access Project

author: BROWN JR., P.J.,

license: Public Domain

text:
    Gettig Engineering Manufacturing Company v. Charles D. Snyder & Son Inc.

      C.P. of Centre County,
    no. 2001-0231.

      John W. Blasko and Darryl R. Slimak, for plaintiff.

      Bret J. Southard, for defendant.

      Tracey G. Benson and Scott C. Etter, for additional defendant.
    April 23, 2004
   BROWN JR., P.J.,

— Presently before this court for consideration is defendant Charles D. Snyder & Son Inc.’s second motion for partial summary judgment. The court determines genuine issues of material fact exist regarding whether plaintiff Gettig Engineering Manufacturing Company’s recovery for damages in its breach of contract claim is limited by the “limitation of liability” clause found in paragraph 6(b) of the “Standard terms and conditions of sale” attached to the “Quotations” prepared by defendant and dated September 27, 1993, February 25,1994, and February 25,1994.

BACKGROUND

Plaintiff filed an amended complaint on September 6, 2001, making claims of negligence, strict liability, breach of express warranty, breach of implied warranty and breach of contract against defendant. According to the complaint, beginning in 1994 and continuing through 2001, plaintiff contracted with defendant for silver and the plating of silver on electrical contacts for a plunger switch used by plaintiff in wiring assemblies/wiring harnesses. Acting pursuant to the parties’ contract, plaintiff sent the electrical contacts to defendant, defendant was to silver plate the contacts with .0003 to .0005 inches of silver and send the silver plated contacts back to plaintiff along with a material certificate certifying the contacts were plated with .0003 to .0005 inches of silver.

According to plaintiff’s complaint, the electrical contacts were then incorporated into switches. The switches were subsequently incorporated into wiring assemblies/ wiring harnesses by plaintiff. Plaintiff sold the wiring harnesses to the Croty Corporation, who incorporated the wiring harnesses into a vanity mirror and sun visor assembly. Croty then sold the completed assemblies to General Motors, who installed the assemblies into its vehicles.

According to the complaint, on or about June 1999, Croty notified plaintiff the wiring harnesses in the sun visors were not functioning properly as a result of intermittent operation and opening of switches caused by defective electrical contacts.

According to plaintiff, the electrical contacts were rendered nonfunctional because of a defect in defendant’s silver plating process. General Motors had to remove and replace the wiring harnesses. Croty paid General Motors damages for the removal and replacement of the defective assemblies. Plaintiff indemnified Croty for the damages and now plaintiff is seeking compensation from defendant for said damages.

On June 16, 2003, defendant filed the instant second motion. According to defendant, it prepared three quotations for plaintiff, at its request, for the silver plating of plaintiff’s electrical contacts. The quotations are dated September 27, 1993, February 25, 1994, and February 25, 1994. Defendant maintains the contract between the parties includes all the terms and conditions stated in these three quotations. Said quotations include “Standard terms and conditions of sale” printed on the back side of the document.

Paragraph 6(b) of the standard terms and conditions of sale contains a “limitation of liability” clause, which defendant maintains limits its liability for any loss or damage suffered by plaintiff. Paragraph 6(b) provides recovery is limited to “the customer’s cost of the material or merchandise or our processing and finishing price for such material, whichever amount is the lesser.” Defendant argues plaintiff accepted all of the terms contained within the quotations by submitting various purchase orders in response to the quotations. Defendant argues partial summary judgment is warranted because plaintiff is limited in its recovery of damages by paragraph 6(b).

Oral argument was held on April 20, 2004. Both parties have submitted briefs.

DISCUSSION

Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, admissions and any affidavits show no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Marks v. Tasman, 527 Pa. 132, 134, 589 A.2d 205, 206 (1991); Pa.R.C.P. 1035.2. The moving party has the burden of proving no genuine issue of material fact exists. Marks, 527 Pa. at 135, 589 A.2d at 206. The court must examine the record in the light most favorable to the non-moving party, and resolve all doubts regarding a genuine issue of material fact against the moving party. Id. Summary judgment may be granted only where the right to judgment is clear and free from doubt. Id. at 134-35, 589 A.2d at 206.

Defendant maintains partial summary judgment in its favor is warranted based upon the limitation of liability clause in paragraph 6(b). Defendant argues the quotations manifest defendant’s offer to bargain and the purchase orders manifest plaintiff’s acceptance of these offers. Defendant submits plaintiff, by submitting the purchase orders in response to defendant’s offers without attempting to negotiate or change the terms, accepted all the terms contained within the quotations, including the limitation of liability provision contained in paragraph 6(b). Defendant maintains plaintiff continued to accept the terms contained within the quotations with each subsequent purchase order submitted by plaintiff, up to and including the year 1999, when the problems with the contacts allegedly developed. Defendant cites the Superior Court of Pennsylvania’s holding in Beaver Valley Alloy Foundry Co. v. Therma-Fab Inc., 814 A.2d 217 (Pa. Super. 2002), for support of its argument.

Plaintiff raises numerous arguments why defendant’s second motion should be denied. Each of plaintiff’s arguments are based upon plaintiff’s assertion that there are outstanding issues of material fact regarding whether the contract between the parties includes the language contained within paragraph 6(b).

Plaintiff argues the changes in the purchase orders submitted by plaintiff in 1999 (i.e., different price terms and specifications), coupled with the substantial passage of time between defendant’s original quotations in 1993 and 1994 and plaintiff’s purchase orders in 1999, indicate that an issue of fact exists as to whether or not each of the 1999 purchase orders in fact constituted new offers, rather than an acceptance of any prior quotation by defendant. If the purchase orders submitted in 1999 were offers which defendant accepted by silver plating the contacts, then the limitation of liability provision in paragraph 6(b), which was last submitted for plaintiff’s acceptance in 1994, is no longer part of the contract between the parties in 1999 when the defective contacts were discovered.

Because the court agrees with plaintiff on this point and determines a genuine issue of material fact exists regarding whether or not plaintiff is limited in its recovery of damages by paragraph 6(b), the remainder of plaintiff’s arguments in opposition to defendant’s second motion will not be discussed herein.

The court has carefully reviewed the three quotations prepared by defendant in 1993 and 1994, along with paragraph 6(b), and the purchase orders submitted by plaintiff from 1994 to 1999. The court agrees, based upon the Beaver Valley case, that the quotations submitted in 1993 and 1994 were sufficiently complete to be offers. The court also agrees plaintiff’s submission of purchase orders in 1994 in response to the quotations manifested its acceptance of defendant’s offers. However, the court determines the evidence of record does not clearly resolve the question of whether the subsequent purchase orders submitted by plaintiff in 1998 and 1999 were also an acceptance of defendant’s offers and the terms and conditions contained within said offers.

First, the court determines the quotations submitted by defendant to plaintiff in 1993 and 1994 were offers. Referring to the document in question as a “quotation” does not mean it is not an offer. Beaver Valley, 814 A.2d at 222. An offer has been defined as “a manifestation of a willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.” Id. “[I]n determining whether an offer is made[,] relevant factors include the terms of any previous inquiry, the completeness of the terms of the suggested bargain, and the number of persons to whom a communication is addressed.” Id.

Here, the relationship between the parties began when plaintiff sent defendant a “Quotation request only,” dated September 22, 1993. In the quotation request, plaintiff requests defendant send it a quotation for the price and delivery of silver plating on “Part #2133 contacts” in quantities of between “50,000 pcs. to 250,000 pcs.” In response, defendant submitted the quotation dated September 27,1993. Said quotation contains material terms, such as the subject matter, price, payment, delivery, as well as paragraph 6(b) and the other standard terms and conditions of sale. The quotation was specifically prepared for plaintiff, at plaintiff’s request, and was not communicated to any other persons. Defendant thereafter submitted two other quotations to plaintiff, which were virtually identical to the first quotation, except for the price term. The court determines the quotations manifest defendant’s willingness to enter into a bargain with plaintiff for the silver plating of plaintiff’s contacts according to the specified terms. Consequently, the quotations were offers to bargain directed to plaintiff.

In response to the quotations, plaintiff submitted purchase orders dated January 12, 1994, January 19, 1994, February 22, 1995 and March 8, 1994. Said purchase orders requested a specific quantity of plaintiff’s contacts be silver plated with .0003 to .0005 inches of silver. The court determines these purchase orders were a manifestation of plaintiff’s acceptance of the terms contained within defendant’s quotations. Thus, the contractual relationship at the time consisted of the quotations prepared by defendant, which include the limitation of liability clause in paragraph 6(b), and the purchase orders prepared by plaintiff.

The parties agree from 1994 to 1999 defendant and plaintiff maintained an on-going relationship for the silver plating of plaintiff’s contacts. Plaintiff alleges the breach of contract claim concerns contacts which were silver plated by defendant in 1999. There is no evidence any more quotations were prepared and submitted by defendant to plaintiff after the second February 25,1994 quotation.

There is evidence plaintiff prepared and submitted at least four subsequent purchase orders to defendant. Each of the four purchase orders, which are dated in 1998 and 1999, contain price terms materially different from the price terms stated in the quotations prepared by defendant almost five years earlier. None of the purchase orders refers to or incorporates the provisions contained within paragraph 6(b). There is no evidence these purchase orders were submitted as an acceptance of defendant’s quotations offered almost five years earlier. Indeed, the time lapse and the different price terms indicate these later purchase orders were not submitted in response to the quotations prepared by defendant in 1993 and 1994, but could be offers to bargain prepared by plaintiff and submitted to defendant for defendant’s acceptance. Consequently, the court determines defendant has not met its burden of proving no genuine issues of material fact exist regarding whether or not plaintiff is limited in its recovery of damages in its breach of contract claim by the limitation of liability clause in paragraph 6(b).

Accordingly, the following is entered:

ORDER

And now, April 23, 2004, upon consideration of defendant Charles D. Snyder & Son Inc.’s second motion for partial summary judgment and after consideration of the written and oral arguments of the parties, said motion is denied.

      . The September 27, 1993 quotation is attached to defendant’s second motion as exhibit D, the first February 25, 1994 quotation is attached to defendant’s second motion as exhibit G, and the second February 25,1994 quotation is attached to defendant’s second motion as exhibit H.

      . By opinion and order dated April 22, 2004, plaintiff’s claims of negligence and strict liability were dismissed from the amended complaint.

      . On April 9, 2003, plaintiff filed a motion for partial summary judgment. On April 30, 2003, plaintiff filed a motion in limine. On May 27, 2003, defendant filed a cross-motion for partial summary judgment. The court held oral argument on plaintiff’s motion for partial summary judgment and defendant’s cross-motion on August 28, 2003. At said oral argument, both parties agreed to reserve argument on defendant’s second motion and plaintiff’s motion in limine until a later date to be set by the court. The court has disposed of plaintiff’s motion for partial summary judgment and defendant’s cross-motion for partial summary judgment by separate opinion and order. The court will dispose of plaintiff’s motion in limine by separate opinion and order.

      . Plaintiff’s arguments in opposition to the second motion may be found in plaintiff’s response to defendant’s second motion, filed August 27, 2003.

      . Attached as exhibit C to the second motion.


author: FEUDALE, S.J.,

text:
    Williams v. Hill

      C.P of Erie County,
    no. 12185-2001.

      Joseph P. Conti, for plaintiffs.

      Samuel S. Hill, pro se.

      March 15, 2004
   FEUDALE, S.J.,

Specially Presiding,

— Before this court in this defamation and libel case is a motion in limine filed by plaintiffs, Cunningham Chrysler, Plymouth Inc. and various owners, salesmen and other employees of a franchise retail dealer of Chrysler/Plymouth Jeep vehicles.

Defendant, Samuel S. Hill, who is unrepresented by counsel, indicated in his pretrial narrative statement that he would be calling as a witness at a jury trial scheduled for April 12, 2004, Attorney Brian M. McGowan and Ms. Marsha Cedeno in defense of the allegations against him. Mr. McGowan is an attorney with the law firm known as The McDonald Group L.L.P., and Ms. Cedeno is a paralegal with the same law firm.

FACTS

The relevant facts for the purpose of deciding the motion in limine reflect that Mr. Hill purchased a used 1995 Grand Cherokee with mileage of 41,687 miles on April 6, 1999. Contemporaneous to the purchase of the Grand Cherokee, Mr. Hill purchased a warranty (Chrysler service contract), that according to his answer, covered the vehicle for a period of two years or 24 months, subsequent to the 90-day warranty, which came with the vehicle. Mr. Hill, in his pretrial narrative, alleges inter alia, that he was persuaded by used car salesman, Russell Moore, to purchase the extended warranty. He also alleges he was told by Mr. Moore that the warranty would cover everything that went wrong with the vehicle except items that normally wear out tires, brakes, mufflers, etc. According to plaintiffs, Mr. Hill brought the vehicle in for service on three different occasions between April 6,1999, and October 1999 and he was told each time the repairs he was requesting were not covered under the warranty. In his answer to the amended complaint, Mr. Hill alleged only one repair was actually done, which was a leak in the transmission.

Notwithstanding the foregoing, on June 16,2001, and June 28, 2001, Mr. Hill and two other people described by Cunningham in their complaints against Mr. Hill as co-conspirators, arrived at the site of Cunningham Chrysler Plymouth, and proceeded to express their displeasure with plaintiffs by way of verbal utterances and picket signs.

Apparently, at a subsequent discovery proceeding, Mr. Hill was at the McDonald Group law firm for the purpose of examination and photocopy of the picket signs. According to Mr. Hill, Attorney Brian McGowan saw the picket signs spread out on the conference table (one of which reflected Cunningham “Salesman lie,” and Mr. McGowan allegedly responded in front of paralegal Marsha Cedeno, “Yes everyone knows that.”). Defendant has listed Brian McGowan and Ms. Cedeno, as liability witnesses in his pretrial statement.

The wherefore clause of plaintiffs’ motion in limine provides:

“Wherefore, plaintiffs respectfully request the issuance of an order in limine precluding any and all of the defendants from referring to and/or utilizing the alleged statements of Attorney Brian M. McGowan in any manner whatsoever, and further precluding the presentation of the testimony of Attorney McGowan and/or Ms. Cedeno by any and all of the defendants.”

Plaintiffs allege, inter alia, the alleged statements are not relevant to the issues to be determined at trial, that Mr. McGowan has never been a customer or purchased a vehicle from Cunningham, that Mr. McGowan never held nor does he now hold any opinion nor does he know the reputation of “plaintiffs” (emphasis added) and, therefore, there is no factual basis for admission of the testimony.

Additionally, during argument on the motion, an issue arose whether Mr. McGowan had any knowledge or involvement as counsel in the case. Mr. Hill alleged, and subsequently provided, a copy of a motion to extend case management order, which along with a certificate of service, was signed by Attorney McGowan in May of 2002. While Mr. Conti (who is the only attorney this court has had any involvement with in both cases filed by Cunningham et al., against defendant Hill, Crozier and Jackanic) asserts such evidenced a limited involvement by Mr. McGowan. Notwithstanding the foregoing, we would note plaintiffs’ counsel’s praecipe for appearance filed with the prothonotary on August 17,2001 provides “Please enter our appearance on behalf of all the plaintiffs in the above matter. Respectfully submitted, The McDonald Group L.L.P.” and was signed by Joseph P. Conti, Esquire. Clearly, such evidenced both the intent and ability of Mr. McGowan to act as counsel, when deemed appropriate, and/or as also evidenced when Mr. Conti was unavailable.

RELEVANT LAW

In their motion in limine, the first averment of plaintiffs is that the “alleged statements are not in any manner relevant to the issues to be determined at trial.” In order to determine such we must review plaintiffs’ and defendant’s burdens in this cause of action.

In an action for defamation, the plaintiff must prove:

“(1) the defamatory character of the communication;

“(2) its publication by the defendant;

“(3) its application to the plaintiff;

“(4) the understanding by the recipient of its defamatory meaning;

“(5) the understanding by the recipient of it as intended to be applied to the plaintiff;

“(6) special harm resulting to the plaintiff from its publication; and

“(7) abuse of a conditionally privileges occasions.” 42 Pa.C.S. §8343(a); see also, Smith v. Wagner, 403 Pa. Super. 316, 588 A.2d 1308 (1991); Thomas Merton Center v. Rockwell International Corp., 497 Pa. 460, 442 A.2d 213 (1981); Kryeski v. Schott Glass Technologies, 426 Pa. Super. 105, 626 A.2d 595 (1993).

The defendant has the burden of proving, when relevant to the defense:

“(1) the truth of the defamatory communication;

“(2) the privileged character of the occasion on which it was published; and

“(3) the character of the subject matter of defamatory comment as of public concern.” 42 Pa.C.S. §8343(b)

Finally, in consideration of the elements and defense of a cause of action for defamation, and plaintiffs’ motion requesting we address the admissibility and relevance of the witnesses Mr. Hill seeks to call, we turn to the relevant rules of evidence.

Pa. Rule of Evidence 104 provides, in relevant part, as follows:

“Rule 104. Preliminary questions

“(a) Questions of admissibility generally

“Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privilege.

“(b) Relevancy conditioned on fact

“When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

“(e) Weight and credibility

“Even though the court has decided that evidence is admissible, this does not preclude a party from offering evidence relevant to the weight or credibility of that evidence.”

Pa. Rule of Evidence 105 provides as follows:

“Rule 105. Limited admissibility

“When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court upon request shall, or on its own initiative may, restrict the evidence to its proper scope and instruct the jury accordingly.”

DISCUSSION

In his answer defendant Hill denies he defamed any of the plaintiffs and asserts inter alia that his assertions were directed at the salesman that he claims made the allegedly false representation to him about the extended warranty. Such is corroborated to a limited extent by the signs which he claimed read “Cunningham Salesman lie.” (emphasis added) If as he avers (notwithstanding the absence of a “d” on the sign in question) an attorney for the plaintiffs (The McDonald Group) with which Attorney McGowan is associated, and who executed legal documents which are part of the record proceedings, allegedly made an assertion “Yes everyone knows that,” arguably as to a salesman (Russell Moore) who is not a named plaintiff (for reasons we are unable to speculate on); then any ruling disallowing the testimony would be premature. Additionally, somewhat oddly and ironically, Mr. McGowan’s alleged assertion may be relevant if believed as to (1) the defamatory character of the communication (2) its application to the named plaintiffs and, most importantly (3) the understanding by the recipient of its defamatory meaning as well as the alleged truth of the defamatory statement and even arguably the character of the subject matter of defamatory comment as of public concern. We also note that after a careful review of Attorney McGowan’s affidavit, it is not clear that he denies or disavows making the asserted statement. No affidavit was submitted by Ms. Cedeno. If as Mr. McGowan asserts in his affidavit, “I have never held, nor do I now hold, the opinion(s) that has/have been alleged by the defendants in the two above stated civil actions” or if as one may speculate the assertion made was an off-the-cuff admittedly pejorative comment, the weight and credibility of all of the foregoing is for the jury to determine. In any event, we believe at a minimum, Rule 105 and the doctrine of limited admissibility is implicated, and plaintiffs upon request, depending on the testimony developed, may request that the court restrict the evidence to the proper scope, and instruct the jury accordingly.

We therefore enter the following:

ORDER

And now, to-wit, March 15, 2004, the plaintiffs’ motion in limine requesting the court preclude any and all of the defendants from referring to and/or utilizing the alleged statements of Attorney Brian McGowan in any manner whatsoever, and further precluding the presentation of the testimony of Attorney McGowan and/or Ms. Cedeno by any and all of the defendants is hereby denied and both witnesses upon proper subpoena shall be available as potential liability witnesses at trial.

      . We would note that the salesman, Russell Moore, was not named as a plaintiff in the above cause of action, although we are uncertain whether he was an employee when Cunningham et al. filed the complaint in June 2001.

      . Also named in a subsequent lawsuit was Matthew Jackanic and Thomas Crozier. The case as to Jackanic was amicably resolved and discontinued by subsequent order of court. The action against Mr. Crozier, who is also unrepresented, remains.

      . Apparently defendant’s activities were captured in the televised and print media.

      . Plaintiffs’ motion in limine paragraph 5(a).

      . Under Pennsylvania Defamation Law, only statements of fact can support an action for libel or slander, not merely expressions of opinion. 42 Pa.C.S. §8343(2). Baker v. LaLayette College, 350 Pa. Super. 68, 504 A.2d 247 (1986), aff’d, 516 Pa. 291, 532 A.2d 399 (1987).


author: GRINE, J.,

text:
    Halderman v. PennDOT

      C.P. of Centre County,
    no. 2002-1765.

      Joseph P. Green, for plaintiff.

      Daniel R. Goodemote, for defendant.
    March 3, 2004
   GRINE, J.,

— Defendant brings a motion for partial summary judgment in this matter concerning a vehicle accident between plaintiff Halderman and defendants PennDOT and PennDOT’s employee, defendant Bamdt, who was operating the tmck that collided with plaintiff’s vehicle. The accident occurred on August 23, 2000, on S.R. 144 near the Bellefonte sewage plant. Plaintiff was driving a truck for G.M. Mc-Crossin Inc. during the course of his employment that day. He had stopped in his lane for a vehicle ahead of him turning in the sewage plant. Defendant Bamdt came around a curve, traveling in the same lane behind plaintiff. Defendant Bamdt could not get stopped in time and collided into the rear of plaintiff’s vehicle. Defendant Bamdt was operating a tmck for PennDOT during the course of his employment when the accident occurred.

Because the accident happened while plaintiff was on the job, plaintiff was eligible for workers’ compensation benefits and his workers’ compensation insurance carrier has paid medical and hospital expenses. As part of the instant matter, plaintiff seeks recovery for the subro-gation interest asserted by the workers’ compensation insurer. Defendants claim that sovereign immunity bars such recovery and towards that end have filed the motion for partial summary judgment that is now before this court.

Generally, the Commonwealth and its agencies are exempt from suit under the Sovereign Immunity Act. There are exceptions to this sovereign immunity, however, and one of them is the motor vehicle exception, under which this incident appears to fall. Under 42 Pa.C.S. §8522(b)(l), the Commonwealth can be held liable for compensatory damages where its employee negligently operates a motor vehicle which causes harm:

“Exceptions to sovereign immunity;

“(b) Acts which may impose liability — The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised to claims for damages caused by:

“(1) Vehicle liability — The operation of any motor vehicle in the possession or control of a Commonwealth party. As used in this paragraph, ‘motor vehicle’ means any vehicle which is self-propelled and any attachment thereto, including vehicles operated by rail, through water or in the air.” 42 Pa.C.S. §8522(b)(l).

Additionally, in Pennsylvania, when an employee is injured in the course of employment, he is entitled to compensation from his employer, regardless of fault, for medical expenses and work loss. Where a third party was at fault for the incident that caused the employee injury, the employee has the right to pursue a civil action for damages. In circumstances where the employer provided workers’ compensation benefits, a subrogation interest in the matter arises with the employer. 77 P.S. §671.

Prior to 1993, the Pennsylvania Motor Vehicle Financial Responsibility Law expressly precluded the subro-gation interest of workers’ compensation benefit payments. 75 Pa.C.S. §1720. However, this section was “repealed insofar as it relates to workers’ compensation payments or other benefits under the Workers ’ Compensation Act.” Repealer note to 75 Pa.C.S. §1720. The repeal of this part of the MVFRL came through reforms in the Workers’ Compensation Act enacted in 1993. The right of an employer to assert and recover subrogation interest in workers’ compensation benefits against a third party is at 77 P.S. §671 of the Workers’ Compensation Act.

Defendants claim that, although an employer may now have the right of subrogation for workers’ compensation, sovereign immunity comes in to shield defendants in this particular matter because:

“The Commonwealth, its political subdivisions, their officials and employees acting within the scope of their duties enjoy and benefit from sovereign and official immunity from claims of subrogation or reimbursement from a claimant’s tort recovery with respect to workers’ compensation benefits.” 77 P.S. §501, note.

This caveat is in the note section, below the statute of section 501 of the Workers’ Compensation Act, and not written anywhere within the statutes of that Act. Plaintiff asserts that this note was inserted to reinstate the benefits of sovereign immunity would apply, such as, liability limitations, damages caps, etc. Defendant claims it was not necessary for the legislature to include provisions on sovereign immunity because that is the general rule in Pennsylvania; only exceptions need to be set forth in law.

Both parties note that sovereign immunity has been preserved for the Commonwealth, except where it is expressly waived:

“Pursuant to Section 11 of Article 1 of the Constitution of Pennsylvania, it is hereby declared to be the intent of the General Assembly that the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign immunity and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity. When the General Assembly specifically waives sovereign immunity, a claim against the Commonwealth and its officials and employees shall be brought only in such manner and in such courts and in such cases as directed by the provisions of title 42 (relating to judiciary and judicial procedure) or 62 (relating to procurement) unless otherwise specifically authorized by statute.” 1 Pa.C.S. §2310.

From the reading of the statutes, the court finds that because the caveat pertaining to sovereign immunity was found in the notes, and not within the actual body of the statutes, that legislature likely intended plaintiffs’ interpretation regarding limitations on recovery against the Commonwealth. The statutes at 75 Pa.C.S. §1720 in the MVFRL and 77 P.S. §671 in the Workers’ Compensation Act show that an employer is entitled to subrogation rights and that subrogation from a claimant’s tort recovery with respect to workers’ compensation benefits are included in those rights.

Further, as plaintiffs point out by analogy to the Governmental Immunity Act, the Pennsylvania Supreme and Commonwealth courts have recognized the validity of the workers’ compensation subrogation interest. In Hankee v. Wilkes-Barre/Scranton International Airport, 532 Pa. 494, 616 A.2d 614 (1992), governmental immunity did not preclude the assertion of the workers’ compensation subrogation interest for medical expenses and wage loss. And in Laich v. Bracey, 776 A.2d 1022 (Pa. Commw. 2001), the court held that a workers’ compensation sub-rogation claim was enforceable against a Bucks County Intermediate Unit for a collision and injury to a plaintiff caused by one of BCIU’s mini-vans.

ORDER

And now, March 3,2004, for the reasons stated above, it is ordered and decreed that defendants’ partial motion for summary judgment is hereby denied, and plaintiff’s partial motion for summary judgment is hereby granted.