author: GORBEY, J.,

text:
    In re N.J.H.

      Anne L. Cooper, for Children and Youth.

      Heather Mumma Hamer guardian ad litem, for N.J.H.

      Farley G. Holt, for Mother.
    January 2, 2008
   GORBEY, J.,

PROCEDURAL HISTORY

On March 29, 2007, the Lancaster County Children and Youth Social Services Agency filed a petition to terminate the parental rights of R. N. S. (Mother) and L. J. H., Sr. (Father) to their son, N. J. H. (N.). A hearing scheduled for May 31,2007 was continued to two hearing dates, July 13 and July 20, 2007. On June 18, 2007, the hearing scheduled for July 20,2007 was rescheduled for, and then held on August 8,2007. A decree was issued on October 1, 2007, terminating Mother’s and Father’s parental rights to N. Mother appealed the order of October 1, 2007 to the Superior Court on October 30, 2007. On the same day, this court issued an order for Mother to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b) and for opposing counsel to file an answer thereto by December 4, 2007, which documents were timely filed.

FACTUAL HISTORY

N. J. H. was bom on January 10,2005. (N.T. 6,7/13/07 a.m.) The agency’s initial contact with Mother and N. was on December 21, 2005, when a call came in to the agency aboutMother’s drug use. {Id. at 9.)N.’s maternal grandmother later testified that she made the call because she had found drug paraphernalia in Mother’s room in her house and Mother’s crack cocaine use had become so problematic. (N.T. 65, 7/13/07 p.m.) Grandmother asked Mother to move out of her house and Mother moved to an apartment in Peach Bottom, PA. Mother saw an agency caseworker for the first time on December 23, 2005. She denied drug use, but admitted taking Methadone for back pain. (N.T. 11, 7/13/07 a.m.) When her first caseworker, Theresa Gamber, paid her a visit on December 23, 2005, she found Mother’s prescription bottle empty. The prescription had been filled on December 15, 2005 for 60 pills and was empty on December 23. Mother told her she kept the rest of the pills in a locked box, but refused to show it to Gamber. (Id. at 30.) When asked why she didn’t show Theresa Gamber her pills, she said that she didn’t think it was right for somebody to come into her house and tell her she has to show her medication to them. (N.T. 77, 8/8/07.) Mother admitted that sometimes she takes more than the prescribed amount of medication because of the pain. (N.T. 30, 7/13/07 a.m.) At the first visit, Mother refused to sign both a release for her landlord to provide the agency with information, and a safety contract with the agency which stated that she would comply with random drug tests, refrain from substance abuse, have an assessment done and follow recommendations. (N.T. 11-12, 7/13/07 a.m.) On December 28, 2005 both Mother and Father refused to go for drug screens, or sign releases and the safety plan. When the caseworker went to Mother’s house to keep a scheduled January 5, 2006 appointment, no one was home. The agency filed a petition for legal custody and protective supervision on January 9, 2006. (Id. at 13-14.) The parents subsequently agreed to sign all documents and releases. (Id. at 15.) Mother was drug tested on February 7,2006 and the result was positive for cocaine. She failed to attend a scheduled drug and alcohol evaluation on February 8, 2006. (Id.) She again tested positive for cocaine on February 16. N. was placed in foster care on February 14, 2006. On March 6, Mother went to a drug and alcohol assessment, but refused a drug screen. (Id. at 16-20.) On April 7 another drug screen was positive for cocaine. On March 24,2006 Mother signed herself into Bowling Green Inpatient Flospital for drug and alcohol treatment. On March 31, she signed herself out against medical advice, because, she testified, they refused to give her something to help her sleep. (Id. at 21; N.T. 100, 7/13/07 p.m.)

Mother then had a long history of missed appointments with various agencies and either negative or refused drug screens. After Bowling Green, she started treatment at HSA Drug and Alcohol Treatment pursuant to a recommendation that she have intensive outpatient treatment. (N.T. 35, 7/13/07 a.m.) She missed an appointment on April 28, 2006 and a group session on May 10, 2006. She was discharged from the program. On May 24,2006 she met with the director of HSA in order to be admitted back into their program. She then missed another appointment and met with the director again. She missed two appointments in July of2006, was again discharged, and never went back. She had been dismissed by the Family Alternatives program for missing counseling and having positive drug screens. (Id. at 37-38.)

She was then evaluated by Josephine Kalista, a counselor at Adams Hanover Counseling Service in York, PA on October 2,2006. It was recommended that she attend group and individual sessions on a weekly basis. (Id. at 38.) She had difficulties participating in the group sessions and was removed from them in March of2007, but continued seeing Kalista on a one-to-one basis. (N.T. 4-5, 7 /13/07 p.m.) She saw her three times in March of 2007 but then cancelled her last session for the month. She was seen only one time in April of 2007 and one time in May. (Id. at 5,7.) Then things slacked off further because of Mother’s work schedule and Kalista’s being away because of a death in her family. (Id. at 5.) At the July hearing, Kalista had not seen Mother since her single May appointment. (Id. at 29.) Despite the low number of sessions Mother attended, Kalista informed the court that Mother was making great progress in individual counseling. (Id. at 16.) However, most of her information consisted of self-reporting from Mother. Kalista was not aware that the agency had asked Mother to do a drug screen on June 26, 2007 and Mother had refused. (Id. at 28.) She had not spoken with Mother’s physician. (Id. at 32.) She was not aware that Father had a drug history or that he might well be a trigger person for Mother’s addictive behavior. (Id at 34-39.) The basis for her positive opinion that Mother was not at risk for medication addiction was that the drug results she had seen were negative. (Id. at 29.) However, those screens that came to her attention did not test for Methadone. (Id. at 61.) Mother testified that she had been discharged by Kalista after successfully completing the program. (N.T. 51, 8/8/07.) However there was nothing in writing for the court to read, and although Kalista was optimistic about Mother, there is nothing in her testimony that supports such a precipitous discharge immediately after so many absences. (N.T. 15, 7/13/07 p.m.)

Kalista expressed concern about management of an addict taking Methadone along with other drugs and told the court that Methadone is a difficult drug to get off of. Kalista had worked in a Methadone clinic in Baltimore and reported that a lot of addicts would take other pills to get a high. (Id. at 22-23.) Mother was taking and continues to take Methadone. At some point in the past, she obtained her Methadone off the streets. (N.T. 29,7/13/07 a.m.) Then, with Father’s help, she found a Dr. Jackson in Havre de Grace, MD, who prescribed Methadone for her as a remedy for back pain. (N.T. 23, 8/8/07.) Something caused Dr. Jackson to leave practice abruptly without appropriately transferring his records to another physician. Mother and Father found a Dr. Dinesh Shah, also in Maryland, who now treats many of Dr. Jackson’s patients. In Mother’s case, without all of her previous records, and without ordering any new diagnostic tests, Dr. Shah prescribed Methadone for mother on her first visit. (N.T. 10,14,36, 8/8/07.) He sees her every month, at which time he gauges her progress through her self-reporting, and gives her a new prescription for a month’s supply of Methadone. (Id. at 24.) In Methadone clinics such as the one Kalista worked at in Baltimore, patients are given a urine test and a breathalyzer every time they get Methadone. (N.T. 22-23,7/13/07 p.m.) But Dr. Shah does no drug screens, no physical tests to gauge her progress, no physical therapy and, when Mother complained that her pain was worse, he added some Oxycodone for break-through pain. (N.T. 21,25,32,8/8/07.) Oxycodone is similar chemically to Oxycontin, which Mother told him she had abused in the past. (Id. at 32-33.) He was not in touch with her addictions counselor. He did not order any subsequent MRIs. (Id. at 20.) He testified that he has a “gut feeling” that Mother is not addicted to Methadone, but has not tried reducing her medication. (Id. at 26.) Dr. Shah charges $70.00 for an office visit and prescription for Methadone. (Id. at 24.) He has not performed drug tests, because she tells him she is being tested elsewhere, although he has received no test results. (N.T. 35.)

Mother’s first goal as set out on her child’s permanency plan is dealing with her drug addiction. (N.T. 35, 7/13/07 a.m.) Her results for drug screens remained spotty during her connection with the agency. She tested positive for opiates on April 12 and April 20,2006. She refused a screen on May 1,2006, saying she had smoked crack two days earlier. On May 17, May 24, and June 5, 2006, she had negative drug screens, but on June 12, 2006 she tested positive for cocaine. A June 26 test was negative, but a July 10,2006 test was positive for cocaine. After two negative tests in late July, she refused a screen on August 7,2006. On August 21 and September 29, she had invalid screens. On October 3, 2006, she refused a test, accusing the agency of doing something to the tests to make them invalid. Tests on October 17 andNovember 14 of2006 were negative, but on November 28,2006 she refused a screen because it would be supervised by someone in the bathroom with her. On December 8, Mother’s counselor told her to go for a screen, but she did not do so. January 23, February 6 and February 28, 2007 produced negative screens. On March 13,2007 she did not show up for a screen, but on April 12 she had a negative screen. After that she missed a couple of appointments for screens. On June 26, 2007 she refused a screen at the agency. (N.T. 42-45, 7/13/07 a.m.) During the summer of 2007, she missed two appointments, missed two urine tests and two case management meetings on July 26 and August 2 at the TASC program, a drug testing agency to which she had been sent by Kalista. (N.T. 68, 8/8/07.) She admitted that although she missed visits with her child and therapy sessions because of transportation problems, she never missed an appointment with Dr. Shah to get her Methadone prescription. (Id. at 64.) The agency believes she has not completed her first goal of conquering her drug addiction. (N.T. 46, 7/13/07 a.m.)

The second goal that she had to demonstrate to have her child returned was stable mental health, which was initially addressed by a psychological evaluation by Dr. John Weigle on September 18, 2006. (N.T. 46, 7/13/07 a.m.) He recommended that she maintain sobriety, continue her drug and alcohol counseling, participate in couples’ therapy with Father, become more settled in her life and obtain another medical opinion about taking Methadone. (Id.) She did not get a second opinion about the Methadone, but because she had seen Dr. Jackson before Dr. Shah, she considered Dr. Shah her second opinion. (N.T. 117,7/13/07 p.m.) She and Father did not go for couples counseling because she says they have broken up, although her lease is in his name and he pays her bills. {Id. at 48.) She calls him her boyfriend in her sessions with Kalista. (N.T. 84, 7/13/07 a.m.) The agency considers she has not completed her second goal. {Id.)

Her third goal is maintenance of a violence free relationship. Mother and Father have a history of violence. {Id. at 49.) InApril of2006, Mother reported that Father had assaulted her at a bar and she subsequently pressed charges. {Id. at 85.) Mother did attend a domestic violence education group, but she continued to live with Father, who had engaged in seriously violent behavior toward her, after finishing that class. It is still not clear what relationship she and Father have. As noted above, he is the sole lessee on her lease and pays many of her bills. She told Kalista that they are still together and calls him her boyfriend. (N.T. 84,7/13/07 a.m.)

Mother’s fourth goal is stable housing. {Id. at 49.) She was evicted from the Peach Bottom apartment in May of 2006. Although she reported that she was staying in a trailer on Father’s father’s property, she was really living with her mother, and lied to the agency about that. On July 21,2006, she and Father were arrested at Grandmother’s house. After that she stayed with her brother briefly and then in November, 2006, she moved into a two bedroom trailer leased in Father’s name. {Id. at 49-51.) Because of Father’s drug use and violent behavior, and his refusal to address his child permanency plan, he cannot live in a residence with the child. Although she insists she is living alone, the extent of their relationship is questionably uncertain. (Id. at 53-54.)

Mother’s next goal is a stable source of income. As of the first hearing on July 13, Mother was working at a grocery store. As of the last hearing on August 20, she had quit that job and was starting to work at Wal-Mart as a sales associate on the day of the hearing. She also planned on beginning another job she had acquired at a chemical distribution company for which she was to go through orientation the following Wednesday. She was not sure whether she would stay at Wal-Mart or not. (N.T. 45, 8/8/07.)

N. has been in a pre-adoptive home since August 14, 2006. Mother visits with N. for an hour every other week, sometimes with Father. At visits N. appears to have a good time. He is generally shy at the beginning of the visits, and sometimes clings to his foster mother or father. (N.T. 64,7/13/07 a.m.) Although he seems to enjoy playing with Mother, he doesn’t get upset at the end of the visit when he has to separate from her and goes back to his foster/adoptive parents easily. He interacts well with his foster parents and is extremely attached to them. He is by this time a member of their family. If he is upset or hurt or tired, he goes to them for comfort, as is normal with a young child and his parents. The agency believes that he would not be harmed by being adopted, but would be harmed by the emotional wrench if he were to be removed from his foster parents. (Id. at 67.)

ISSUE

(1) Whether it is appropriate to terminate a mother’s parental rights to her 3-year-old son when he was taken from her at 1 year of age because of her drug use, lack of stable housing and employment and cohabitation with a man who also used drugs and treated her violently, when she continues two years later to take Methadone regularly, still lives in a house leased and paid for by the same man, who refused to complete his child permanency plan, appears to still have a relationship with him, and cannot show a successful work history.

DISCUSSION

The Adoption Statute, 23 Pa.C.S. §2511 (Grounds for involuntary termination) provides, inter alia, that parents rights may be terminated on the grounds that “the child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child.” 23 Pa.C.S. §2511(a)(8).

In making its decision under that section, the court must give primary consideration to the developmental, physical and emotional needs and welfare of the child.

N. was originally placed into foster care on January 9, 2006 because of his mother’s and father’s addiction to drugs and failure to cooperate with the agency. Mother has had a long history of Methadone and cocaine abuse. The court finds that her condition persists because of her continuing dependence on Methadone and will not be improved in the foreseeable future, since Mother insists that she takes Methadone only for pain and will not admit her dependency. However, she has been neither monitored during her treatment or tested for the substance. Also, she refused a drug test as late as June of 2007, indicating to the court her concern that something else disadvantageous to her would be revealed. It is clear that Mother does not yet have her drug problem solved.

Since N. was taken from her almost two years ago, Mother has been involved with a number of agencies who have attempted to provide her with help in alleviating her addiction problems. First, of course, was the Lancaster County Children and Youth Social Service Agency, which did not succeed in its endeavors to help Mother achieve sobriety. Then, she was an inpatient at Bowling Green and left against medical advice. She was referred to Family Alternatives for services connected to her drug use and was discharged for missing counseling and having positive drug screens. She attended and then was discharged for a third and final time from HS A Drug and Alcohol treatment for missing appointments. She has been in counseling with Josephine Kalista, who, although optimistic, was without all of the relevant facts. Not one therapeutic entity has credibly concluded that Mother has succeeded in conquering her addictions.

Highlighting the problem is Mother’s ongoing experience with Dr. Dinesh Shah, an internist who, without diagnostic tests, past history, or apparent concern for risk to his patients, provides Mother with Methadone on a regular basis. The court is outraged at the apparent lack of ethical considerations which permit Dr. Shah to cavalierly hand out Methadone to a drug addict without first obtaining necessary information or utilizing appropriate safeguards. Mother self-reported her pain to Dr. Shah, who did nothing to medically corroborate it. There was no objective evidence before the court as to the extent of Mother’s pain, or whether she in fact has pain that requires opiates. It appears to the court that Dr. Shah is effectively giving Methadone to anyone willing to say that he or she experiences unremitting pain and willing to pay him the cost of a consultation and prescription. Mother is on a regular regimen of Methadone which Dr. Shah shows no sign of weaning her off of. To make things worse, there have been indications that Mother may not be adhering to the prescriptions, but is taking the medications at a faster rate than indicated. Also, Dr. Shah is also providing Oxycodone to Mother for breakthrough pain, and there are indications that Mother is also taking that medication more quickly than the prescription directs. Various counselors and caseworkers have attempted to convince Mother to get a second opinion about the Methadone treatment. She has not done so. Mother is clearly addicted to Methadone, a substance for which she is not being tested. She remains drug dependent with Dr. Shah’s help. While the record indicates that transportation or work problems interfere with her keeping appointments for her drug screens, counseling or related activities and that she has missed a number of visits with her son, she has had no trouble finding transportation to Maryland to see Dr. Shah and receive a prescription for Methadone, her drug of choice. N. has been in foster care for two years and Mother has not remedied the drug difficulties that put him there.

The other difficulties of her life addressed in the permanency plan also remain. As long as she is dependent on Father for a home, she has no stable housing or normal living expenses. If he decides to no longer take responsibility for her, she would be destitute. She told the court she has two jobs, although she is unsure of which one to keep. However, at the time of the August hearing, she had not done a minute’s work at either. The job she had in July is gone after only a short period of time. The court cannot view this situation as stable employment, since there is no job history to use as a predictor. Whether Mother will be employed in the near future is a real question without a real answer. In his evaluation of Mother’s mental health, Dr. Weigle made a number of recommendations, particularly the one which recommends that she receive a second medical opinion about her Methadone use. That happens to be a recommendation that the court finds of highest priority, but in the time span of over a year, she has seen no one but her Methadone dispenser, Dr. Shah. Mother has not corrected any of her problems in the way the court has directed over the last two years. More than 12 months has passed since N.’s placement, and the conditions which led to his removal from his mother continue to exist.

Mother was adamant in her testimony that she had changed her ways. She insisted that she now understands clearly the mistakes she made and will not repeat them. She professes to recognize the importance of her child to her, and while admitting that she “messed up”, she is certain that she will not do so again. Given her history, the court can find no sign that Mother’s good intentions have any validity. Her credibility is more than suspect. She lied to the agency about who she was living with in the summer of 2006. She keeps her relationship with Father cloudy, maintaining him solidly in her life while asserting her independence. She insists that her employment is stable when she hasn’t worked for one minute at either of her jobs, both of which she states she obtained immediately before the hearing on this matter. She denies drug use at the same time she regularly takes Methadone and other medications for pain. The court did not find Dr. Shah to be a credible medical witness in light of his procedures in prescribing drugs to drug addicts. In short, the court does not believe Mother’s protestations of her reformed status without some actual experiential evidence that she is capable of maintaining stability in all of the problem areas of her life. Saying that her life has changed for the better does not make it so. She has already spent two years on this effort. The legislature has statutorily directed that 12 months from placement is long enough for Mother to correct the problems that led to placement. Mother continues to take drugs, and can show no stable housing or employment capabilities. The court believes that too much additional time will be needed to make Mother realize that something must be done and then do it. The court will not sentence N. to a life in limbo while his mother continues to live an unstable, unhealthy life and insist that everything has been corrected and life is wonderful. Mother has not changed her behavior. The statutory standard of 5211(a)(8) has been met.

The court must now look at whether such a decision is in N. ’s best interest. He has been with his foster parents for two years and his behavior shows that he considers them to be his parents. He is doing well with them. While Mother exhibits appropriate behavior with him during visits, he is not over-eager to see her or loath to leave her. The visits are for one hour every other week, and there was no indication that N. would be unhappy to see them end, since he apparently is not unhappy to see each individual visit end. The court sees no harm, but a great deal of good in terms of this child’s best interests in terminating Mother’s rights. Otherwise, he will remain in limbo, seeing his addicted Mother once every other week and never being sure of where he belongs. This child deserves love and stability that Mother cannot give to him and does not seem willing to work to give to him. It would be cruel to maintain N. in his current situation without a resolution to the uncertainty surrounding his life and relationships.

CONCLUSION

Based on the reasons set out above, R. S.’s parental rights to N. H. have appropriately been terminated.

      . Part of Kalista’s therapeutic approach was making Mother aware of “triggers” which consist of people, places, or experiences which might cause her to begin her drug use. (N.T. 15, 7/13/07 a.m.)

      . Father also consults Dr. Shah for self-reported pain and had been placed on a similar drug regimen. (N.T. 20.)

      . The court notes that the standards of23 Pa.C.S. §§2511 (a)( 1 )(2) and (5) have also been met, but need not be discussed, given the right to terminate under section (8).

      . Father’s rights were also terminated in the court’s order of October 1,2007, but he did not appeal the decision.


source: Caselaw Access Project

author: McGINLEY, J.,

license: Public Domain

text:
    Bielucki v. HMS Host Corporation

      Michael P Kelly, for plaintiffs.

      Andrew L. Salvatore, for defendant HMS Host Corporation.

      Zarnosh N Maneckshaw, for defendant Sunoco Inc.
    November 30, 2007
   McGINLEY, J.,

The issue before this court is whether Sheridene Bielucki has asserted all the necessary elements to sustain a slip and fall cause of action against defendants. Defendants HMS Host Corporation a/k/a HMS Host USA Inc. and Sunoco Inc. (R & M) (Sunoco) have filed motions for summary judgment. HMS’s initial motion for summary judgment asserted no liability on behalf of HMS because of Sunoco’s duty to maintain the property. Sunoco subsequently filed a motion for summary judgment asserting plaintiffs’ failure to produce facts essential to their cause of action. HMS joined in Sunoco’s motion for summary judgment and it is upon that motion that we base our decision.

FACTS

On September 23, 2004, at the Allentown Service Plaza of the Pennsylvania Turnpike, Sheridene Bielucki was injured when she tripped and fell while walking on the designated walkway area between the parking lot and the travel plaza buildings. Plaintiffs filed suit against HMS and allege that the cause of Ms. Bielucki’s fall was “a failure to provide adequate direction in the form of correct walkway lines.” Plaintiffs’ complaint, paragraph 6(c). HMS filed a joinder complaint against Sunoco asserting that Sunoco was responsible for maintaining the property where Ms. Bielucki fell.

STANDARD OF REVIEW

Pursuant to Pennsylvania Rule of Civil Procedure 1035.2, summary judgment is appropriate:

“(1) whenever there is no genuine, issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery; or
“(2) if after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2.

A motion for summary judgment may only be entered if the pleadings, depositions, affidavits and all other materials together show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Swartley v. Hoffner, 734 A.2d 915, 918 (Pa. Super. 1999). In considering a motion for summary judgment, the court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party when determining if there is a genuine issue of material fact. Chada v. Chada, 756 A.2d 39 (Pa. Super. 2000). However, the non-moving party may not rest upon the mere allegations or denials of the pleadings to demonstrate that there is a genuine issue of material fact. Pa.R.C.P. 1035.3(a). Finally, amotion for summary judgment may only be granted in cases where it is free and clear from doubt that the moving party is entitled to judgment as a matter of law. Ducjai v. Dennis, 540 Pa. 103, 656 A.2d 102 (1995).

DISCUSSION

Defendants assert that plaintiffs have failed to set forth facts that the curb where Ms. Bielucki tripped was in any way defective. Plaintiffs respond by arguing that Ms. Bielucki’s deposition testimony establishes that she tripped in a manner consistent with hitting the curb as the result of the misdirection of the line painting and the failure to paint the curb itself.

The only fact alleged about Ms. Bielucki’s fall in plaintiffs’ complaint is, “plaintiff Sheridene Bielucki was outside the store entrance and tripped and fell while walking on the designated walkway area between the parking lot and the travel plaza buildings sustaining the injuries more particularly set forth hereinafter.” Plaintiffs’ complaint, paragraph 4. The only pictures of the site where Ms. Bielucki fell show that there are no obvious defective conditions relating to either the curb or sidewalk area. (Sunoco’s exhibit C.)

In deposition, Ms. Bielucki testified “I stepped on the riser and it threw me off balance and I landed on both my knees.” (Deposition Sheridene Bielucki, May 15, 2007, p. 20.) The riser is part of the curbing that slopes down for wheelchair accessibility to the sidewalk leading to the front of the plaza building entrance; the curbing was not painted. (Bielucki, p. 21.) At the time of the fall, Ms. Bielucki was not looking at the curb but was looking at her husband who was walking ahead of her. (Bielucki, pp. 41-42.) Ms. Bielucki testified that her right foot caught the curb and caused her to fall. (Bielucki, p. 41.)

Under Pennsylvania law, “[t]he mere showing of an accident and injury does not prove negligence.” Rogers v. Binkham, 200 Pa. Super. 312, 315, 188 A.2d 821, 822 (1963). A defendant owes a duty to an invitee (a) to keep the premises in a reasonably safe condition and to warn an invitee of latent defects or dangers which it knows exist or in the exercise of reasonable care should have known. Polinelli v. Union Supply Co., 403 Pa. 547, 170 A.2d 351(1961). An invitee must present evidence which proves the owner deviated in some way from his duty of reasonable care under existing circumstances. The evidence must show that the owner knew, or in the exercise of reasonable care, should have known, of the existence of the harmful condition, and that the owner helped to create the harmful condition or that the owner had actual or constructive notice of the condition. Zito v. Merit Outlet Stores, 436 Pa. Super. 213, 647 A.2d 573 (1994); Restatement (Second) of Torts §343.

Plaintiffs have not provided any factual evidence to support the allegation that the curb or sidewalk where Ms. Bielucki fell was defective. Plaintiffs assert that the area where Ms. Bielucki fell was defective because of misdirection of the line painting and the failure to paint the curb itself. There is no evidence to support the proposition that Ms. Bielucki fell as a result of being misdirected by line painting. Similarly, there is no evidence to support the claim that Ms. Bielucki fell as a result of an unpainted curb. Her deposition testimony was that she was not looking at the curb at the time of the fall; she was looking at her husband. Ms. Bielucki’s fall and any resulting injuries do not in and of itself prove negligence.

CONCLUSION

Plaintiffs have not produced evidence of a defective condition where Ms. Bielucki fell, which is essential to this premises liability cause of action. Plaintiffs’ action cannot stand against either HMS or Sunoco absent such evidence, and accordingly, defendants are entitled to judgment as a matter of law.

ORDER

And now, November 30,2007, upon consideration of defendant HMS Host Corporation’s motion for summary judgment filed with the clerk of courts — civil division on August 16, 2007, additional defendant Sunoco Inc. (R & M)’s motion for summary judgment filed with the clerk of courts — civil division on September 18,2007 and defendant HMS Host Corporation’s motion for summary judgment joining Sunoco’s motion for summary judgment filed with the clerk of courts — civil division on October 15, 2007, plaintiffs’ responses thereto, and argument thereon, and for the reasons set forth in the accompanying opinion, it is hereby ordered that said motions for summary judgment are granted and judgment is entered in favor of defendant HMS Host Corporation and additional defendant Sunoco Inc. (R & M) as a matter of law. The above-captioned matter is dismissed.

      . Subsequent to argument held on this matter, defendant HMS provided counsel and chambers paperwork in an effort to establish that Sunoco, not HMS, was responsible for maintaining the area where Ms. Bielucki fell. Because we have determined that plaintiffs have not asserted facts essential to maintain this action, it would be superfluous to determine which defendant, if any, would be liable in this action.


author: MOTTO, P.J.,

text:
    Commonwealth v. Ward

      Kate Fee-Baird, assistant district attorney, for Commonwealth.

      David H. Acker, for defendant.
    December 12, 2007
   MOTTO, P.J.,

Before the court for disposition is defendant’s omnibus pretrial motion in the form of a petition for writ of habeas corpus alleging that the Commonwealth did not establish a prima facie case to the charges of interception of communications (18 Pa.C.S. §5703(1)), possession of device for intercepting communications (18 Pa.C.S. §5705(1)), and possession of instruments of a crime (18 Pa.C.S. §907(A)), because the victim had no reasonable expectation of privacy with regard to her conversations at work and the digital recorder used was not designed to be primarily useful for the purpose of intercepting communications.

A preliminary hearing was held in front of magisterial District Judge Melissa Amodie on May 8,2007, and all charges were bound over to this court. The facts of the case are as follows:

On June 20, 2006, Starlett Brothers reported to work at 9:45 a.m. At the time, she was employed as an assistant manager at Cash Advance located in Shenango Township. In addition to Ms. Brothers, there was only one other employee at that location, the defendant, Sandra Ward. When Ms. Brothers arrived for work that morning, the defendant was already in the office.

As the day progressed, Ms. Brothers waited on several customers at the main counter. The main counter of the store also serves as her desk. At one point during the afternoon while Ms. Brothers was waiting on a customer she heard something hit the floor down by her feet. She stated that she is constantly dropping pens on the floor throughout the day, so she did not pay attention to what actually fell from beneath the counter. At about 2:30 p.m. the defendant left for lunch and Ms. Brothers was left alone in the store. While the defendant was on her lunch hour, Ms. Brothers discovered a Sony Brand Model ICD-B300 Digital Audio tape recorder on the floor under her desk. There was clear packaging tape attached to the recorder. When Ms. Brothers played the recorder she recognized the defendant’s voice and her own voice and the sounds of her working throughout the day. After hearing the voices on the recorder Ms. Brothers immediately called the divisional director of operations for Cash Advance. Ms. Brothers then confronted the defendant about the recorder and the defendant admitted to placing the recorder under Ms. Brothers’ desk.

On September 26, 2006, Starlett Brothers filed a criminal complaint with Officer Jason Domenick of the Shenango Township Police Department. At that time, Ms. Brothers turned the digital recorder over to Officer Domenick. Officer Domenick then went to the Cash Advance store to question the defendant about the digital recorder. After giving the defendant her Miranda rights, the defendant provided a written statement to the officer. In that statement, she admitted to placing the recorder under Ms. Brothers’ desk and recording her throughout the day. Defendant also wrote a letter to Ms. Brothers admitting to placing the recorder because defendant was concerned about people talking about her.

The defendant was charged with violating title 18 Pa.C.S. §5703(1) interception of communications, a felony of the third degree; title 18 Pa.C.S. §5705(1) possession of device for intercepting communications; and title 18 Pa.C.S. §907(A) possession of instruments of a crime, a misdemeanor of the first degree. Subsequently, the defendant filed omnibus pretrial motions including a request for a writ of habeas corpus.

Filing a petition for a writ of habeas corpus is the appropriate method by which a defendant may challenge a pretrial finding that the Commonwealth has presented sufficient evidence to establish a prima facie case. Commonwealth v. Karlson, 449 Pa. Super. 378, 674 A.2d 249 (1996); see also, Commonwealth v. McBride, 528 Pa. 153, 595 A.2d 589 (1991); Commonwealth v. Carmody, 799 A.2d 143 (Pa. Super. 2002). However, in a habeas corpus proceeding, the Commonwealth may present evidence, additional to what was presented at the preliminary hearing, in order to prove the elements of the offenses charged. Karlson (supra).

In evaluating an accused’s entitlement to pretrial habeas corpus relief, a trial court must determine whether there is sufficient evidence to make out a prima facie case that the defendant committed the crime with which he or she is charged. Commonwealth v. Hock, 556 Pa. 409, 728 A.2d 943 (1999). The Commonwealth must satisfy this evidentiary burden by presenting evidence that established a crime was committed and that there is a probability that the defendant committed the crime. Commonwealth v. Fox, 422 Pa. Super. 224, 619 A.2d 327 (1993). The Commonwealth establishes a prima facie case by offering some proof to establish each material element of the offense as charged. Commonwealth v. Owen, 397 Pa. Super. 507, 580 A.2d 412 (1990). The Commonwealth is not required to prove this by the “beyond a reasonable doubt” standard; however, the Commonwealth must satisfy a standard of “sufficient probable cause” that the accused has committed the offense. Commonwealth v. Prosdocimo, 331 Pa. Super. 51, 479 A.2d 1073 (1984).

The Commonwealth meets the burden of establishing a prima facie case when it submits evidence that, if accepted as true, would warrant a trial judge to allow the case to go to a jury. Commonwealth v. Marti, 779 A.2d 1177 (Pa. Super. 2001). Evidence must be presented concerning each element of the crime charged. Id. Such evidence must be viewed in the light most favorable to the Commonwealth. Id. Furthermore, the Commonwealth is entitled to all reasonable inferences that can be drawn from the evidence presented. Id. The weight or credibility of the evidence is not at issue during the preliminary hearing. Id.

The Pennsylvania Wiretapping and Electronic Surveillance Control Act, title 18 Pa.C.S. §5701, et seq. makes it a felony of the third degree for a person to intercept or endeavor to intercept any wire, electronic or oral communication. (18 Pa.C.S. §5703(1).) An oral communication is defined under section 5702 of the Wiretapping Act as “[a]ny oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation.” In Commonwealth v. Christopher, 423 Pa. Super. 51, 53-54, 620 A.2d 494, 495 (1992) and Agnew v. Dupler, 553 Pa. 33, 717 A.2d 519 (1998), the appellate courts have made it clear that a communication is not an “oral communication” as defined by the Wiretapping Act unless the victim has a reasonable expectation of privacy.

In Agnew, the chief of police went to the police station at some point during the evening and parked his vehicle away from the police station. He entered the station and activated the intercom function of a phone in the squad room, and then sat in his darkened office to listen to the conversations of the officers on the night shift. One of the police officers filed a lawsuit under the Wiretapping Act. The lower court granted a compulsory nonsuit. On appeal, the Pennsylvania Supreme Court affirmed the lower court.

The Supreme Court held that the officer did not possess an expectation of privacy. The court held that in order to establish a prima facie case under the Wiretapping Act for interception of an oral communication, the Commonwealth must establish: (1) the complainant engaged in communication; (2) that the complainant possessed an expectation that the communication would not be intercepted; (3) that the complainant was justifiable under the circumstances; and (4) that the defendant attempted to, or successfully intercepted the communication. Agnew, 553 Pa. at 36, 717 A.2d at 522.

The court found that the officers had no reasonable expectation of privacy in the squad room. The court pointed out that the conversations occurred in a common area among fellow police officers and could be overheard by others in the surrounding area. Therefore, the interception on their conversations could not be a violation of the Wiretapping Act. The court specifically stated that “one cannot have an expectation of non-interception absent a finding of a reasonable expectation of privacy.” Agnew, 553 Pa. at 38, 717 A.2d at 524.

In Commonwealth v. Christopher (supra), the defendant walked unannounced into the county Children and Youth Services office to meet with the social worker assigned to his case. The caseworker escorted him back to his office where they discussed the defendant’s case. Another social worker was present the entire time the defendant and his social worker were discussing his case. At the close of the meeting, the social worker noticed a small tape recorder partially protruding from the defendant’s coat pocket. When the social worker asked the defendant about the device, he admitted to recording the conversation. The Pennsylvania Superior Court determined that surreptitious recording of an interview between a children and youth service worker and a client could not be a violation of the Pennsylvania Wiretapping Act because the conversation was not an “oral communication,” because there was no reasonable expectation of privacy. Commonwealth v. Christopher, 423 Pa. Super, at 52, 620 A.2d at 495.

To determine the existence of an expectation of privacy in one’s activities, a reviewing court must first examine whether the person exhibited an expectation of privacy; and second, whether that expectation is one that society is prepared to recognize as reasonable. “Since the standard for such expectation of privacy is one that society is prepared to recognize as reasonable, the standard is necessarily an objective standard.” Commonwealth v. Blystone, 519 Pa. 450, 463, 549 A.2d 81, 87 (1988) as quoted in Agnew v. Dupler, 553 Pa. at 37, 717 A.2d at 523.

In the case sub judice, Ms. Brothers testified at both the preliminary hearing and a hearing held in front of this court that on June 20, 2006 while she was talking with a customer at the front counter of Cash Advance she heard a digital recorder fall from under her desk. When she played the recorder she heard her voice and the defendant’s voice on the recorder. When she confronted the defendant, the defendant admitted to placing the recorder under the counter earlier in the day for the purpose of recording Ms. Brothers’ conversations throughout the day. The Commonwealth presented evidence that established that the defendant intentionally intercepted Ms. Brothers’ oral communication throughout the day.

The defendant argues that the recording took place at the customer service counter area where Ms. Brothers had no reasonable expectation of privacy. Ms. Brothers testified that when she began working for Cash Advance she signed the company policy manual that said that conversations may be monitored. Therefore, the defendant argues that Ms. Brothers had no reasonable expectation of privacy with regard to her conversations at work, in a very public setting, and under circumstances where she had signed a company policy manual acknowledging that she was aware that her conversations could be monitored and that she had no reasonable expectation of privacy with regard to those conversations.

Although Ms. Brothers acknowledged signing a company policy manual, the manual was not introduced into evidence and the precise terms thereof are not of record. It is not enough to simply put forth that a company policy manual provides for conversations to be monitored without knowing what the manual states about the circumstances and means by which monitoring may occur.

The Commonwealth has presented evidence that establishes that the defendant placed a digital recorder under the desk of Ms. Brothers for the purpose of recording her conversations throughout the day. Under Agnew, the expectation of privacy is pivotal. A conversation is protected under the Wiretapping Act only where the speaker possesses a reasonable expectation of privacy in the conversation.

This court finds that the Commonwealth presented evidence that tends to establish that Ms. Brothers possessed a reasonable expectation of privacy with regard to her conversations at the desk and on her phone at work. This case is factually different from Agnew in that the defendant in this case did not use an intercom system that was part of the business phone system. In Agnew, the intercom system was a two-way communication device in full view of the police officers. They knew the intercom system existed. Ms. Brothers did not know that a recorder was hidden under the counter and recording her throughout the day. The defendant admitted that she recorded Ms. Brothers for personal reasons because she was worried that she was being talked about in the workplace. Also, customers and Ms. Brothers were discussing private financial matters and the customers were not employees of Cash Advance. Defendant’s method of recording did not discriminate between business conversations and personal conversations. It fact, it was Ms. Brothers’ personal conversations that were of interest to defendant. In Agnew, the only communications that were intercepted were those of officers on the police force speaking openly in the squad room, conversations that anyone walking in and out could hear. Here, all of Ms. Brothers’ conversations were recorded, personal and business, including those which she could not have anticipated that anyone else would hear. Ms. Brothers’ expectation of privacy is evident from the testimony that she confronted the defendant and called the police when the recorder was discovered.

This case is also distinguishable from Christopher where Christopher dealt with the recording of a single conversation between a CYS worker and a client by the client with non-confidential matters being discussed. Here, defendant attempted to intercept all of Ms. Brothers’ conversations, including those of a personal nature.

Accordingly, this court finds the Commonwealth has presented sufficient evidence for a fact-finder to determine whether said evidence indicates that defendant’s actions in recording Ms. Brothers’ conversations, business and personal, throughout the day were an unlawful invasion of her privacy. Therefore, defendant’s petition for writ of habeas corpus on the count of interception of communications is denied.

With regard to the charge of possession of device for intercepting communications, this statute makes it illegal to- possess an electronic, mechanical or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of surreptitious interception of a wire, electronic or oral communication. 18 Pa.C.S. §5705(1). The Commonwealth presented evidence that defendant placed a Sony Brand Model ICD-B300 Digital Audio tape recorder under the front counter at the Cash Advance store for the purpose of recording Ms. Brothers’ conversations throughout the day. Therefore, this court finds the Commonwealth presented sufficient evidence for a fact-finder to determine whether the defendant possessed the digital recorder knowing that the device was primarily useful for the purpose of intercepting surreptitious communication.

Likewise, with regard to the charge of possession of instruments of a crime in violation of 18 Pa.C.S. §907(A), this court finds that the Commonwealth presented a prima fade case that the defendant possessed the digital recorder for the purpose of intercepting the oral communications of Ms. Brothers.

Therefore, in accordance with the principles set forth in this opinion, the defendant’s petition for writ of habeas corpus is hereby denied.

ORDER

And now, December 12,2007, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered and decreed that defendant’s omnibus pretrial motion in the nature of a motion for writ of habeas corpus as to each charge are each denied.


author: SHEPPARD JR., J,

text:
    Driscoll/Intech II v. Scarborough

      Michael Libor, for plaintiff.

      Roy S. Cohen and Shawn Farrell, for defendants.
    February 12, 2008
   SHEPPARD JR., J,

Presently before the court are preliminary objections filed by Edmund C. Scarborough, International Bonding & Construction Services Inc. (IBCS), and First Mountain Bancorp (FMB) (collectively defendants) seeking dismissal of all counts in the complaint except Count II (breach of bond) against Scarborough. For the reasons discussed, defendants’ preliminary objections are sustained, in part, as to Count I (as to IBCS and FMB), and Counts II, IV, V, VI, VII, and VIII.

BACKGROUND

On October 31,2005, plaintiff Driscoll/Intech II (D/I) entered into a subcontract agreement with Larry C. Mc-Crae Inc. McCrae was to be the electrical subcontractor on a project known as “Symphony House Mixed Use Facility” (project). The subcontract required that McCrae provide D/I with a performance and payment bond in the amount of $6,414,323, the value of the subcontract.

On March 15,2006, defendant Scarborough provided D/I with the contractually required bond on behalf of McCrae. The bond lists Scarborough as the surety, Mc-Crae as the principal, and D/I as the owner/obligee. The bond provides that McCrae and Scarborough are jointly and severally bound to D/I for the performance of the subcontract. As a condition to the bond taking effect, a trust was to be created in the amount of the bond. Thus, Scarborough pledged $6,414,323 worth of assets in an irrevocable trust as collateral, with FMB serving as trustee.

In March of 2007, D/I discovered that McCrae experienced financial difficulty and had not paid for labor and materials for its work on the project, which violated the subcontract. In response, D/I informed McCrae, Scarborough, and IBCS that a breach of the subcontract had occurred and that D/I was considering declaring McCrae in default under the subcontract. Upon notification, Scarborough and IBCS authorized payments to McCrae of the remaining subcontract funds in order to continue work on the project.

After continuous financial difficulty resulting in defaults on the subcontract by McCrae, D/I negotiated a liquidating agreement, and later two amendments, to the subcontract. Scarborough and IBCS were provided notice and did not object to any agreements or amendments. Under the second amendment, D/I had the option to advance funds, after payment by the owner, to McCrae for some or all of the “cost events” so as to allow Mc-Crae to remain viable on the project. Ultimately, D/I did advance certain funds to McCrae as per this agreement.

Finally, on July 31, 2007, D/I issued a formal notice to McCrae, Scarborough, Scarborough’s counsel, and IBCS of default on the subcontract, due to McCrae’s continuous financial difficulty. And on August 8, 2007, D/I issued a formal notice of termination effective August 11, 2007 to McCrae, Scarborough, and FMB.

After providing these notices, D/I requested a meeting with Scarborough on August 13, 2007, to discuss plans for completion of the surety’s obligations. However, D/I alleges that the meeting was unilaterally cancelled by Scarborough in order to allow him time to “investigate the causes” surrounding the default and termination of McCrae.

IBCS also alerted D/I via letter of its commencement of an investigation into the claim on behalf of Scarborough. D/I alleges that IBCS’ letter contained gross and intentional factual errors and improper conclusions, all in an attempt to deceive and extract money from D/I. Finally, on September 10,2007, the surety denied liability under the bond and no payments were made to D/I.

D/I instituted this litigation on September 25, 2007, alleging breach of contract, breach of bond, fraudulent misrepresentation, negligent misrepresentation, violation of good faith and fair dealing, alter-ego liability, and requesting equitable relief. On October 26,2007, defendants filed the preliminary obj ections that are now before the court, seeking dismissal of the complaint based upon the legal insufficiency of Counts I, II, VI, VII, and VIII and the “gist of the action” doctrine for Counts IV and V.

DISCUSSION

In considering preliminary objections, “[A] 11 material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for the purpose of this review.” “The question presented by a demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible.” Any doubts as to whether a demurrer should be sustained, shall be resolved in favor of overruling it. “In ruling on preliminary objections, the focus of the inquiry is the pleadings as a court must sustain preliminary objections only where it is clear and free from doubt from all the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish [its] right to relief.”

I. IBCS and FMB Are Not Parties to the Subcontract

In Count I, D/I asks the court to find that the subcontract, bond agreement, and trust agreement merge together as a single agreement in order to hold the defendants, all of which are not parties to the subcontract itself, obligated to D/I under the subcontract. The court agrees that the subcontract, bond agreement, and trust merge into one overall agreement, but refuses to hold certain parties accountable for obligations not bargained for (contemplated by such parties).

“If contracting parties choose, they may express their agreement in one or more writings and, in such circumstances, the several documents are to be interpreted together, each one contributing (to the extent of its worth) to the ascertainment of the true intent of the parties.” Section 1 of the performance bond states:

“The contractor (McCrae) and the surety (Scarborough), jointly and severally, bind themselves, their heirs; executors, administrators, successors and assigns to the Owner (D/I) for the performance of the construction contract (subcontract), which is incorporated herein by reference.” (parenthetical and emphasis added)

Because the subcontract itself specifically required a performance and payment bond and said bond includes the above provision, specifically referencing the underlying subcontract, the court finds that the subcontract is incorporated into the bond. Although the trust is not “created” in the bond agreement itself, but is merely listed as a requirement for the bond’s effectiveness, the court finds that the trust is incorporated into the bond itself because of the interdependence and interrelatedness between the two agreements.

Having established integration, the court now addresses which parties are held liable under the terms of the subcontract. Under ¶1 of the performance and payment bond, Scarborough obligated himself to D/I for McCrae’s performance under the subcontract. However, the same is not true for IBCS and FMB. IBCS is merely listed in the “affidavit of individual surety” as Scarborough’s risk management company, charged with handling all claims under the bond. IBCS has not obligated itself under the terms of the subcontract and its status as an agent of Scarborough does not result in such obligation. Likewise, FMB, as trustee of a trust that was required for the bond to take effect, never obligated itself on the subcontract. FMB’s obligations are strictly fiduciary in nature, as evidenced by the “irrevocable trust receipt.”

Therefore, the claims against IBCS and FMB in Count I are dismissed.

II. IBCS and FMB Are Not Parties to the Bond Agreement

The court grants defendants’ preliminary objection and dismisses Count II as to IBCS and FMB.

III. Counts IV (Fraudulent Misrepresentation) and V (Negligent Misrepresentation) Are Dismissed Pursuant to the “Gist of the Action ” Doctrine

The “gist of the action” doctrine bars “tort claims that: (1) arise solely from a contract between the parties; (2) where the duties allegedly breached were created and grounded in the contract itself; (3) where the liability stems from a contract; and (4) where the tort essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of the contract.” The doctrine concerns itself with the “essential ground” or material part of the entire complaint, while precluding plaintiffs from casting ordinary breach of contract claims into tort claims.

D/I’s complaint alleges various misrepresentations made by Scarborough and IBCS before, during, and after entering into the subcontract and bond. The complaint also alleges breach of contract claims. The court finds that the essential nature of the complaint is based upon a breach of contract theory. Thus, contract law as opposed to tort law should control.

In applying the “gist of the action” test in a fraud claim, it is relevant to distinguish between “fraud in the inducement” and “fraud in the performance” of a contract. In Pennsylvania, a plaintiff’s claim of fraud in the inducement may escape dismissal under the “gist of the action” doctrine because “fraud to induce a person to enter into a contract is generally collateral to {i.e., not ‘interwoven’ with) the terms of the contract itself.” However, in eToll Inc. v. Elias/Savion Advertising, 811 A.2d 10, 15 (Pa. Super. 2002), the Superior Court of Pennsylvania held that the “gist of the action” doctrine should apply in the “fraud in the performance” context.

Though some of the fraud alleged stems from social policy {i.e., general duty to exercise reasonable care in making representations that could result in reliance), the overall “gist” of the complaint sounds in contract. Specifically, the fraud described in paragraph 55 of the complaint (subparagraphs b.-j.) mirrors the performance obligations under the subcontract and bond. This is a prime example of alleged “fraud in the performance” of a contract, which is well within the “gist of the action” doctrine’s grasp. Because Count IV is duplicative of Counts I and II and falls within the purview of the “gist of the action” doctrine, the court dismisses it.

Plaintiff’s claim under Count V (negligent misrepresentation) is identical to Count IV for present purposes. The negligent misrepresentation allegations are rooted in the defendants’ contractual obligations under the subcontract. The court dismisses Count V pursuant to the “gist of the action” doctrine.

IV. Count VI (Breach of Good Faith and Fair Dealing) Is Dismissed

D/I has also asserted a breach of the implied duty of good faith and fair dealing against all defendants. This court has previously held that “a breach of the covenant of good faith is nothing more than a breach of contract claim and that separate causes of action cannot be maintained for each, even in the alternative.”After reviewing the complaint, the court finds that this claim is duplicative of, and inherently embodied in, D/I’s breach of contract and bond claims. Therefore, this demurrer is sustained and Count VI is dismissed.

V. Plaintiff Has Failed To Allege a Proper Alter-Ego Liability Claim

In Pennsylvania, there is a strong presumption against disregarding the corporate form. “Piercing the corporate veil is the exception, and courts should start from the general rule that the corporate entity should be upheld unless specific, unusual circumstances call for [such] an exception.” Pennsylvania courts consider the following factors in determining whether to pierce the corporate veil: (1) undercapitalization, (2) failure to adhere to corporate formalities, (3) substantial intermingling of corporate and personal affairs, and/or (4) use of the corporate form to perpetrate a fraud.

The complaint alleges that Scarborough, as CEO of IBCS, used IBCS as a “sham” entity in order to perpetuate a fraudulent delay in completion of Scarborough’s own obligations. Though this is one of the above cited factors to be considered by the court, the complaint is silent as to the remaining factors. At this stage, “it is essential that the facts the pleader depends upon to show liability be averred.” The court finds that liability cannot stem from merely two allegations that an “entity” caused a fraudulent delay by (1) requesting information previously submitted to its CEO and (2) conducting a formal investigation into the facts surrounding McCrae’s breach of the subcontract. As pled, the complaint has failed to meet the minimum threshold to allow D/I’s claim of alter ego/piercing the corporate veil liability to go forward. The court grants this demurrer and Count VII is dismissed.

VI. Plaintiff’s Request for Equitable Relief Is Denied

In Pennsylvania, courts consider six “essential prerequisites” before ordering preliminary injunctive relief to a party. These are:

“(1) the injunction is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages;
“(2) that greater injury would result from refusing an injunction than from granting it, and, concomitantly, that issuance of an injunction will not substantially harm other interested parties in the proceedings;
“(3) that a preliminary injunction will properly restore the parties to their status as it existed immediately prior to the alleged wrongful conduct;
“(4) that the activity it seeks to restrain is actionable, that its right to relief is clear, and that the wrong is manifest, or, in other words, must show that it is likely to prevail on the merits;
“(5) that the injunction it seeks is reasonably suited to abate the offending activity; and
“(6) that a preliminary injunction will not adversely affect the public interest.”

The burden is on the moving party to demonstrate these prerequisites before relief is granted.

One factor is “whether an immediate and irreparable harm is actually threatened.” First, the injury must be imminent. According to the complaint, the trust (containing the “only known source of funds available to Scarborough and McCrae to make good on the outstanding obligations of the subcontract and bond”) was to expire on August 17,2007. Thus, as of the date of this opinion, the alleged “harm” has occurred and is in the past.

Second, the injury must be an “irreparable” harm. “An injury is regarded as ‘irreparable’ if it will cause damage which can be estimated only by conjecture and not by an accurate pecuniary standard.” “The plaintiff must demonstrate the likelihood of a loss that is not entirely ascertainable and compensable by money damages.” Here D/I’s argument for equitable relief must fail. Quite simply, this is a breach of contract case. D/I has alleged that defendants have both breached the subcontract and underlying bond. The bond, as a guarantee for the completion of the subcontract, has a value attached to it by way of the trust in the amount of $6,414,323. There is no conjecture involved here. If found to have breached the bond, Scarborough as surety must provide funds to cover the additional expenses incurred by D/I as a result of McCrae’s breach of the subcontract. Any remaining damages flowing from a breach of the subcontract can be calculated under the general principles of contract law.

The court should refrain from issuing a preliminary injunction unless there are reasonable grounds to believe that the situation is of an urgent necessity. Because D/I has failed to demonstrate that the harm is both immediate and irreparable, the court finds that equitable relief is not warranted. Count VIII is dismissed.

CONCLUSION

For the foregoing reasons, defendants’ preliminary objections are sustained in part, as to Count I (breach of subcontract) with regards to IBCS and FMB; Count II (breach of bond); Count IV (fraudulent misrepresentation); Count V (negligent misrepresentation); Count VI (breach of implied duty of good faith and fair dealing); Count VII (alter-ego); and Count VIII (request for equitable relief). An order consistent with this opinion will be issued.

ORDER

And now, February 12, 2008, upon consideration of the preliminary objections of all defendants, the response in opposition, the respective memoranda, all other matters of record, and in accord with the opinion issued contemporaneously, it is ordered that the preliminary objections are sustained, in part, as to the following claims: breach of contract against IBCS and FMB (Count I), breach of bond against IBCS and FMB (Count II), fraudulent misrepresentation (Count IV), negligent misrepresentation (Count V), breach of implied duty of good faith and fair dealing (Count VI), alter-ego liability (Count VII), and the request for equitable relief (Count VIII). The remaining objections are overruled.

      . D/I is a joint venture comprised of L.F. Driscoll Company and Intech Construction. Both are Pennsylvania companies engaged in construction management.

      . Scarborough is an individual with an address of 1155 15th Street, N.W. Suite 900, Washington, D.C. 20005.

      . Despite purporting to be surety, it is alleged that Scarborough has never been qualified to act as a surety under PA law and does not have a certificate to conduct business in Pennsylvania.

      . See ¶1 of the performance and payment bond.

      . FMB is aNevada corporation whose principal place of business is in Las Vegas, Nevada 89109. i

      . IBCS is a risk-management company, with offices in Winter Haven, FL 33 884. IBCS is the claims administrator for the Scarborough bond.

      . As part of the first amendment, McCrae and D/I agreed to certain items, contained in ¶18 of complaint. For the first and second amendments, see exhibits D and E of the complaint, respectively.

      . These “cost events” are the claims set forth in schedule A of the first amendment.

      . See ¶¶30-31 of complaint.

      . Note that the plaintiff accidentally skipped Count III in the complaint and therefore the court will address the counts as stated in the complaint, omitting mention of Count III.

      . Employers Insurance of Wausau v. PennDOT, 581 Pa. 381, 389 n.5, 865 A.2d 825, 830 n.5 (2005).

      . Id.

      . Id.

      . DeStefano & Assocs. v. Cohen, 2002 Phila. C.C.P. Lexis 54, *8 (2002).

      . International Milling Co. v. Hachmeister Inc., 380 Pa. 407, 417-18, 110 A.2d 186, 191 (1955).

      . The bond’s only reference to the trust is in ¶13 and ¶16 of the performance bond and payment bond, respectively. Such reference is: “Not valid without attached Trust Receipt.”

      . See exhibit B of the complaint.

      . Id.

      . It is clear that Scarborough, as surety, has obligations under the bond agreement. However, IBCS and FMB do not have any obligations under the bond agreement. See section I of this opinion for analysis.

      . City of Phila. v. Human Servs. Consultants, 2004 Phila. C.C.P. Lexis 26, *7 (2004).

      . Id. at *6; eToll Inc. v. Elias/Savion Advertising Inc., 811 A.2d 10, 15 (Pa. Super. 2002).

      . See complaint ¶¶54-57, 60-63.

      . This court has already ruled that IBCS was not a party to any contract with D/I.

      . eToll, 811 A.2d at 17.

        Id. at 20.

      . Paragraph 55, subparagraphs a-j of the complaint contains plaintiff’s misrepresentation allegations. Subparagraph (a) is the plaintiff’s best example and argument for “fraud in the inducement,” however; exhibit D in the subcontract requires that the bond be issued by a surety licensed in the Commonwealth of PA. Therefore, this allegation is also implicated in the underlying subcontract.

      . JHE Inc v. SEPTA, 2002 Phila. C.C.P. Lexis 78, *21 (2002).

      . Miners Inc. v. Alpine Equipment Corp., 722 A.2d 691, 694 (Pa. Super. 1998).

      . JK Roller Architects LLC v. Tower Invs. Inc., 2003 Phila. C.C.P. Lexis 40, *7 (2003).

      . Miller v. Brass Rail Tavern, 702 A.2d 1072, 1075 (Pa. Super. 1997).

      . Frey v. Dougherty, 286 Pa. 45, 48, 132 A. 717, 718 (1926).

      . Warehime v. Warehime, 580 Pa.201, 209-10, 860 A.2d 41, 46-47 (2004).

      . Id. at 47.

      . New Castle Orthopedic Associates v. Burns, 481 Pa. 460, 465, 392 A.2d 1383, 1385 (1978).

      . Sovereign Bank v. Harper, 449 Pa. Super. 578, 593, 674 A.2d 1085, 1093 (1996).

      . Sheridan Broadcasting Networks v. NBN Broadcasting, 693 A.2d 989, 995 (Pa. Super. 1997).

      . New Castle, 481 Pa. at 465, 392 A.2d at 1385.


author: KELLER, J,

text:
    In re D.R.J. and M.L.J.

      Rachel Meaker, guardian ad litem for D.R.J. and M.L.J.

      Gary S. Fronheiser, for Father.
    February 14, 2008
   KELLER, J,

This appeal stems from the involuntary termination of the parental rights of the putative father, D.J. (Father and/or appellant) to M.L.J. (d/o/b 10/4/00) and D.R.J. (d/o/b 5/18/05). This family has been involved with Berks County Children and Youth Services (BCCYS) since April 2005, due to unresolved issues of substance abuse, domestic violence, lack of parenting skills, and inappropriate, unsafe housing. Father has consistently lived in Yonkers, New York, throughout these proceedings. The petitions for involuntary termination of parental rights to D.R.J. were filed by BCCYS on March 23,2007 and for M.L.J. on July 6, 2007. Both petitions alleged grounds for termination under 23 Pa.C.S. §251 l(a)(l)(2)(5)(8). On December 17, 2007, this court found that the facts alleged in the petition for involuntary termination of parental rights had been established by clear and convincing evidence and signed final decrees forever terminating all parental rights and duties to the above referenced children. Father, by and through his court-appointed counsel Gary S. Fronheiser, Esquire, filed a timely notice of appeal on January 2, 2008. On January 4, 2008, this court entered an order directing Father to file a concise statement of errors complained of on appeal within 21 days in accordance with Pa.R.A.P. 1925(b). Father’s timely concise statement was filed by his attorney on January 22, 2008 and raises the following issues:

(1)The evidence presented at the hearing of December 17,2007 was insufficient to terminate appellant’s parental rights.

(2)The best interests of the children were not served by terminating appellant’s parental rights.

(3) Berks County Children and Youth Services did not provide sufficient services to appellant to enable him to correct any deficiencies that the court may have found prevented appellant from being a good parent.

(4) Appellant participated in services that he secured on his own, which he believed were in compliance with the court-ordered services.

(5)Berks County Children and Youth Services and this honorable court did not allow sufficient visitation between appellant and his children, thereby undermining any relationship between appellant and his children.

The first issue raised in Father’s concise statement alleges that the evidence presented at the hearing of December 17, 2007 was insufficient to terminate his parental rights. We acknowledge that the proceedings on December 17, 2007 were very brief. They were brief because neither Mother nor Father appeared. The following exchange took place on the record at the time and date assigned to the hearing:

“Mr. Fronheiser: I have no objection to the admission of those exhibits. I did speak with my client this morning. He was actually physically here. I saw him at the Children Services office this morning at 10 a.m., and he said that he was coming for the hearing. I did tell him to meet me there at 1 p.m., he did not appear. And I left word at the receptionsist’s desk over there that they should tell him, if he did appear, to come over here. He has not appeared. But I do not have any objection to those exhibits....

“The Court: All right. The record will reflect that neither Ms. Rivera nor Darren Jones has appeared. And we purposely waited until at least 1:45. Ms. Mealier, you’re here as guardian ad litem?
“Ms. Meaker: Yeah. I have no objections to the exhibits, your honor. And I’m in agreement that it’s in the best interests of these children that the parental rights be terminated.
“The Court: All right.
“Mr. Fronheiser: I have something else. I know that my client was opposing the termination. And he did give me some five exhibits, which I have shown to opposing counsel stating that he attended certain classes and completed some counseling. And I would be asking — I believe that there is an agreement that they would be admitted on his behalf....
“(Whereupon, the proceedings were concluded at 1:48 p.m.)” (N.T. 12/17/07, pp. 7-9.)

This court waited nearly 20 minutes past the time the hearing was to commence before signing the final decrees. The appellant was properly served with notice of the time, date and location of the hearing and he had counsel appointed for him, who further instructed appellant where to be. This court gave appellant ample time to appear for the hearing before determining, in reliance upon previous permanency hearings and information contained in the exhibits, that there was clear and convincing evidence to support the termination of Father’s parental rights.

Appellant next argues in his concise statement that the termination of his parental rights was not in the best interest of the children. The law is very clear and unambiguous when dealing with the involuntary termination of parental rights, and the statute outlines certain inflexible minimum requirements which parents must provide for their children. The rights of a parent in regard to a child may be terminated after a petition filed when the child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child. 23 Pa.C.S. §2511 (a)(5). They may also be terminated when the child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which lead to the removal or placement of the child continue to exist and termination of parental rights would be in the best interest of the children. 23 Pa.C.S. §2511(a)(8). The children in this case were under the custody and care of BCCYS due to both Mother and Father’s unresolved issues with drug abuse, domestic violence, inappropriate and unsuitable housing and lack of parenting skills. The exhibits overwhelmingly show that appellant, Father, had not remedied the conditions that necessitated the placement, and termination of his parental rights would be in the best interest of the children. It is well settled that the court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. D.R.J. was born approximately two months premature and weighed only two pounds at birth. He spent several weeks in the neonatal intensive care unit at the Reading Hospital and Medical Center and Penn State Children’s Hospital. As a result of his lack of prenatal care, Mother’s drug use while pregnant and his premature birth, D.R.J. is medically fragile and was placed in the care and custody of BCCYS upon his release from the hospital at six weeks of age. He has the following diagnoses: (1) cerebral palsy; (2) fetal alcohol effect syndrome; (3) pulmonary dysplasia; (4) chronic rhinitis and allergies; (5) gastric reflux; (6) lower limb discrepancy; and (7) hypertonia. He has made a positive adjustment to his specialized medically fragile foster home, where he has resided since placement. He is happy, content and attached to the foster family. He is thriving, and making progress in his delays, due to the consistent specialized care that the foster parents are able to provide. (N.T. 12/17/07, exhibits 75 and 76.) M.L.J. has been a dependent child since July 20,2005 and has been in foster care placement continuously since December 13, 2006. She receives individual therapy on a biweekly basis and has a pleasant affect, relates well to her provider family and caseworker, and has no health issues. (Id.) As noted above, the guardian ad litem for the children, Rachel Mealcer, Esquire, testified at the hearing that she believed it was in the best interest of the children that both Mother and Father’s parental rights be terminated. This court, too, believes that the children are receiving the love, attention, specialized care and stability they deserve with their foster families, that Mother and Father have not been able to provide, and therefore termination of their parental rights were in the best interests of the children.

Appellant’s third issue in his concise statement alleges that BCCYS did not provide sufficient services to appellant to enable him to correct any deficiencies that this court may have found prevented appellant from being a good father. The Juvenile Act authorizes state agencies and the courts to ensure that parents meet certain legislatively determined irreducible minimum standards in executing their parental rights. Where, as here, the child has been removed from the parental home and placed in foster care, the parents have an affirmative duty to work toward the return of their children. In re V.E., 417 Pa. Super. 68, 76, 611 A.2d 1267, 1271 (1992). At a minimum, that “affirmative duty” requires the parent to show a willingness to cooperate with CYS to obtain the rehabilitative services necessary to enable the parent to meet the duties and obligations inherent in parenthood. Id.

Appellant argues that BCCYS did not provide him with the necessary services to enable him to correct any deficiencies they believed prevented him from being a good father. Before filing a petition for termination of parental rights, the Commonwealth is required to make reasonable efforts to promote reunification of parent and child. In re Adoption of M.E.P., 825 A.2d 1266, 1276 (Pa. Super. 2003). However, the Commonwealth does not have an obligation to make such efforts indefinitely. As noted previously, these children came under the care of BCCYS due to issues of drug abuse, domestic violence, lack of parenting skills and inappropriate housing. Father’s whereabouts were unknown when the children were first placed. After appellant appeared, an appropriate plan for needed services was developed, which included drug/alcohol evaluation and random urinalysis, domestic violence counseling, casework services and the duty to provide BCCYS with any changes in residence and income. BCCYS offered Father casework services on a monthly basis. During the first dependency review period, Father participated in one casework session on December 2, 2005, after the agency had sent six letters between July 18,2005 and November 17,2005, inviting him to contact the agency with any questions or concerns. (N.T. 12/17/07 exhibit 76, p. 6.) Father had an intake evaluation with Berks Advocates Against Violence (B.A.A.V.) on December 20,2005, at which time it was recommended that he participate in the Men’s C.H.O.I.C.E.S. program on a weekly basis for 26 weeks, which would help him develop the skills necessary to foster a safe environment for his family. (N.T. 12/17/07 exhibit 16, p. 2.) His quarterly report indicated that his attendance had been sporadic, and the domestic violence specialist reported that “even though he feels he is learning new skills of parenting, he has not been responsible to find shelter and support for this family. He continues to experience frustration with the Children and Youth Services system and has a hard time redirecting this attention on himself and do everything it takes to get his children out of placement.” (N.T. 12/17/07 exhibit 30, p. 2.) During the second dependency review hearing, Father participated in five out of six casework sessions, the focus of which were to encourage him to further participate in services, as he was not participating in any services in New York. (N.T. 12/17/07 exhibit 76, p. 10.) Despite the recommended/offered services, Father “participated sporadically in domestic violence treatment, was non-compliant with random urinalysis testing, was irregular in attending visitation, and was non-compliant with drug and alcohol treatment after testing positive for marijuana and cocaine in the two urine screens he did complete.” (N.T. 12/17/07 exhibit 45, p. 2.) The Commonwealth has an interest not only in family reunification but also in each child’s right to a stable, safe, and healthy environment, and the two interests must both be considered. Id. A parent’s basic constitutional right to the custody and rearing of his or her child is converted, upon the parent’s failure to fulfill his or her parental duties, to the child’s right to have proper parenting and fulfillment of his or her potential in a permanent, healthy, safe environment. In re B.L.W, 843 A.2d 380, 388 (Pa. Super. 2004) (en banc), appeal denied, 581 Pa. 668, 863 A.2d 1141 (2004). The appellant cannot blame BCCYS for failing to provide him with enough services. Even when the services were offered on an as-requested basis, Father did not avail himself of them. Services were offered until appellant had proven that he was unwilling or unable to comply with them, at which time he was determined to no longer be a viable option as a return resource for the children.

The fourth issue raised in appellant’s concise statement alleges that he participated in services he secured on his own, which he believed to be in compliance with the court-ordered services. Appellant’s counsel submitted five items on his behalf at the termination hearing on December 17, 2007 which were collectively marked as exhibit no. 77. Appellant’s exhibits included a certificate of completion for an anger management class signed on April 13, 2007. There was also an unsigned letter from Steven Payne, CASAC, dated June 4, 2007, indicating appellant was assessed at New Focus on February 20, 2007, and that he “has excellent attendance, participates in all aspects of treatment and has maintained abstinence from all mood altering chemical.” (N.T. 12/17/07 exhibit 77, p. 2.) There was also a letter from Mr. Payne dated December 3, 2007, on Riverside Hospital letterhead, indicating that Father had been receiving services at The New Focus Center’s Alcoholism Component from February 16,2007 until the present and Father had been assessed for treatment services. Recommended treatment services are/were “Day rehab 5x days a week 9-1 p.m. Client has been participating in all groups and is working toward his goals. Client has excellent attendance and is maintaining abstinence.” (Id. at p. 4.) While these exhibits on their face appear to support appellant’s contentions that he participated in services he secured on his own, several of the exhibits submitted by BCCYS contradict these assertions. Random urinalysis was requested of appellant by BCCYS on 12/31/06, 3/8/07 and 6/5/07, and he refused to provide a sample on 12/31/06 and 3/8/07. Appellant submitted to an ONTRAK Urinalysis on June 5,2007 by the Berks County Juvenile Probation Office and tested positive for marijuana. (N.T. 12/17/07 exhibit 69.)

Appellant’s drug use was not the sole reason the children were in placement, and that he was not an appropriate return resource for M.L.J. and D.R.J. The exhibits submitted by appellant’s counsel were devoid of any indication that appellant had secured appropriate housing for the children. However, the Westchester County Department of Social Services did a home study of appellant’s apartment pursuant to the Interstate Compact on the Placement of Children in February 2006 and was denied placement of M.L.J. due to a number of issues related to his unsuitability. (N.T. 12/17/07 exhibit 61, p. 1.) He was re-evaluated through a home study on February 15, 2007, and placement of M.L.J. with appellant again was not recommended because his situation had not improved.

“Residence
“Mr. Jones moved to a basement ‘studio’ in the same building he was living in last year when the original home study was done. This apartment is one room with no windows or kitchen. There is a double bed, single bed, one chair, television, portable closet, microwave oven and refrigerator. The floor is concrete, pipes and wires are exposed and a space heater heats the room. There is an unfinished bathroom with exposed pipes but functioning toilet, sink and stall shower. Tiles need to be installed. To enter this apartment, it is necessary to walk through an enclosed garage where cars are repaired. There are tools, machines, flammable substances, etc. The apartment had a strong smell of oil, which Mr. Jones said is not from the auto garage, but rather from the oil burner that heats the building. This oil burner is located in the basement near the apartment. The unsuitability of this apartment was discussed with Mr. Jones. He said he would be willing to ask the landlord if he could have the next available apartment in the building.
“Drug abuse issues
“As of the last home study, Mr. Jones admitted that he was still smoking marijuana. Mr. Jones now states that he stopped smoking marijuana in January 2007, a little over two months ago. He states that he was only smoking ‘two blunts’ a day. He has not been drug-tested, nor has he gone for drug rehabilitation services.
“Summary
“D.J. is seeking custody of his daughter M.J., in foster care in Pennsylvania. Ahorne study done 2/16/06 did not find him to be a suitable resource. One year later, Mr. Jones’ situation has not improved. He lives in inadequate and dangerous living quarters. He does not have adequate income. He has not received services to address drug abuse issues, nor has he sought parenting classes. It should be noted that Mr. Jones loves his daughter but does not appear to have the emotional strength necessary to take the steps to regain custody.” (N.T. 12/17/07, exhibit 61.)

The court, in terminating the rights of a parent, shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. 23 Pa.C.S. §2511(b). The necessary implication of the language in the Juvenile Act is that a parent who cannot or will not meet the irreducible requirements set by the Juvenile Act within a reasonable period of time following intervention may properly be considered “unfit,” and may properly have parental rights terminated. In re Diaz, 447 Pa. Super. 327, 333, 669 A.2d 372, 375 (1995). It is clear that for more than one year following the removal and placement of M.L.J. and D.R.J., the conditions which necessitated that removal and placement still exist with regards to appellant. Appellant has not satisfactorily complied with either the services recommended by BCCYS or the ones he secured on his own, and has shown either an unwillingness or an inability to remediate these conditions within a reasonable amount of time.

Appellant alleges in the final issue raised in his concise statement that BCCYS and this court did not allow sufficient visitation between appellant and his children, thereby undermining the relationship appellant had with the children. During the first dependency review period, BCCYS had no contact with appellant from July 8,2005 until November 17, 2005 when his then-attorney contacted BCCYS and requested services be provided to Father. Father met with the BCCYS caseworker on December 5,2005, when he tested positive for cocaine and marijuana on that date. Also on that date, M.L.J. had severe reactions to seeing Father and refused to visit with him. (N.T. 12/17/07 exhibit 24, p. 9.) On January 23, 2006, this court concluded that the children remained dependent and custody remained with BCCYS for placement with the goal of return to most appropriate parent. Father was ordered to cooperate with the agency in planning for the child and to participate in all recommended services including but not limited to drug and alcohol evaluation and any recommended treatment, parenting education, domestic violence evaluation and any recommended counseling and casework sessions.

During the second dependency review period, Father was offered weekly supervised visits but participated in only 11 out of the 17 sessions. (N.T, 12/17/07 exhibit 37, p. 9.) At the end of that review period, it was determined that the children remained dependent and their placement was to continue with the goal of return to Mother. It was recommended that the parents participate in the following services if they wished to present as a return resource for the children: (a) parenting education; (b) drug and alcohol treatment; (c) random urinalysis; (d) mental health treatment; (e) visitation with the child; and (f) domestic violence counseling. On July 17, 2006, during the third dependency review period, appellant was sent a letter by his BCCYS caseworker informing him that his visits would be reduced from weekly to twice a month due to his lack of participation in services and his not being considered as a return resource for the children. (N.T. 12/17/07 exhibit 53, p. 1.) Father subsequently missed a scheduled visit on October 12, 2006, which was rescheduled for October 26,2006, and again appellant failed to attend on that date. {Id. at pp. 2-3.) When appellant did attend the supervised visits, he often ignored the suggestions made by the supervisors and was not always effective at setting limits, particularly with M.L.J. (N.T. 12/17/07 exhibit 54.) At the end of the third dependency period, the new goal with regard to D.R.J. was termination of parental rights/ adoption. Appellant’s attendance during scheduled visits was even more sporadic after BCCYS discontinued paying for his bus transportation and his appropriateness during the visits was inconsistent. (N.T. 12/17/08, exhibit 76, p. 21.) Petitions for termination of parental rights were filed relevant to D.R.J. during the fourth dependency review period and M.L.J. remained a dependent child with a primary goal of adoption and a concurrent goal of return to Father.

It is universally agreed that the bond of parental affection is unique and irreplaceable. When parents act in accordance with the natural bonds of parental affection, preservation of the parent-child bond is prima facie in the best interest of the child, and the state has no justification to terminate that bond. In re J.W., 396 Pa. Super. 379, 391, 578 A.2d 952, 958 (1990). On the other hand, a court may properly terminate parental bonds which exist in form but not in substance when preservation of the parental bond would consign a child to an indefinite, unhappy and unstable future devoid of the irreducible minimum parental care to which that child is entitled. Id. It is important to keep in mind that the essential needs of the child and the responsibilities of the parent must be considered as well as the rights of the parents. Id. In this case, the children were removed from the parents’ care due to unresolved issues of substance abuse, domestic violence, lack of parenting skills, and inappropriate, unsafe housing. Aside from the visitations, Father did not fully comply with any services to remedy the conditions which caused the children to be in placement. Although appellant undoubtedly loves his children, he has a responsibility to provide them with a safe and stable living environment and he has not made the significant strides necessary to ensure that they will have the safety and stability they deserve.

For all of the foregoing reasons, this court respectfully requests that Father’s appeal be denied and the decree terminating his parental rights to M.L.J. and D.R.J. be affirmed.