author: MOSS, J.,

text:
    Kolar v. Buffalo Pumps Inc.

      Steven J. Cooperstein, for plaintiffs.

      John S. Howarth, for defendant Buffalo Pumps, Inc.

      Matthew W Reber, for defendant FMC Corp.

      John F. Kent, for defendant Gormann Rupp Co.

      Robert F. Spinelli, for defendant Ingersoll-Rand Co.

      James E. Delbello, for defendant Yarway Corp.
    August 2, 2010
   MOSS, J.,

Plaintiffs Stephen J. Kolar and his wife, Carol Kolar, appeal our orders granting summary judgment in favor of Buffalo Pumps Inc., FMC Corp., Gormann Rupp Co., Ingersoll-Rand Co. and Yarway Corp. (collectively, the defendants). For the following reasons, our orders should be affirmed.

I. BACKGROUND

Plaintiffs commenced this asbestos mass tort action on April 6,2009. The complaint alleges plaintiff Stephen Kolar contracted mesothelioma from exposure to products manufactured or supplied by defendants. Complaint, ¶4. The complaint incorporates by reference the master long-form complaint filed at October term 1986, no. 0001, pleading counts of strict liability and negligence. Plaintiffs’ general master long-form complaint, ¶¶ 6-12.

From 1972 until 1975, Kolar was employed by Grand Forks, North Dakota, in part- and full-time positions at the Grand Forks water maintenance shop (until about 1974), wastewater plant (until about 1975), and water treatment plant (until 1995). Deposition of Stephen J. Kolar, 5/6/2009, 34-35. Kolar testified he performed maintenance work on Buffalo, Chicago, Gorman, and Ingersoll centrifugal and sludge pumps while employed by Grand Forks. Id. at 148. Chicago pumps were used for cold water pressurization. Id. at 92-93. Gorman-Rupp sludge and centrifugal pumps were used at the wastewater plant, as were Ingersoll-Rand centrifugal pumps. Id. at 148-49. The record is unclear about how Buffalo pumps were used at Grand Forks.

Kolar testified his maintenance work caused him to contact asbestos gaskets, or remnants thereof, on pump case housings and flanges. See e.g. Kolar deposition, 155-56 (describing Kolar’s maintenance of Buffalo pumps). Kolar identified the gaskets as manufactured either by Garlock Inc. or Crane Co. Id. at 96, 151-52, 155, and 156. Both Crane and Garock Sealing Technologies LLC, individually and as successor-in-interest to Garlock, were also named defendants. Plaintiffs’ complaint, 2.

Plaintiffs submitted evidence Buffalo centrifugal pumps may have used asbestos gaskets in its “chem-rated pumps.” Plaintiffs’ response to defendant Buffalo Pumps Inc.’s motion for summary judgment, exhibit A (bulletin 803A), 27. Bulletin 803A, a sales brochure of unknown vintage, includes a table entitled “materials of construction.” Id. The entry for component number 65 states “asbestos standard/teflon optional.” Id. The entry for components 65 J and 65K states “asbestos (standard).” Id. The table entries apparently correspond to a parts diagram on the preceding page. Id. at 26. The parts diagram is wholly illegible. See id.

Plaintiffs also submitted Buffalo’s responses to plaintiff’s interrogatories and request for production of documents from Shaeffer v. A. W. Chesterton before the Honorable H. A. Hanna of the Cuyahoga County Court of Common Pleas in Ohio. Plaintiffs’ reponse to Buffalo’s motion for summary judgment, exhibit F. In relevant part, the admissions state:

“By way of further response, the Buffalo Pumps Division of the Buffalo Forge Co., since at least approximately 1955, manufactured, among other things, pumps. These pumps were made of metal alloys, and the pumps themselves contained no asbestos materials. The metal components of certain of these pumps required packing and gaskets. Upon manufacture, the original pump was typically supplied to a customer with the appropriate packing and gaskets. Buffalo Pumps Inc. also believes that the Buffalo Pumps Division of the Buffalo Forge Company on some occasions provided small numbers of gaskets to certain customers along with replacement parts for pumps. From at least approximately 1955 to approximately 1985, gaskets and packing supplied in certain original centrifugal pumps may have contained asbestos.” Id. at 8.

Plaintiffs submitted no evidence Kolar worked on gaskets original to any Buffalo pump.

As to Chicago, Gorman, and Ingersoll, plaintiffs submitted no evidence those manufacturers’ pumps came with any original asbestos components at all or that Kolar worked on gaskets original to those pumps.

As to Yarway, Kolar testified steam trap maintenance caused him to contact asbestos insulation covering the traps, adjacent piping, or asbestos gaskets, or remnants thereof, on trap flanges. Kolar deposition, 139-40. Kolar identified Garlock as manufacturer of the flange gaskets. Id. at 139. Kolar testified there were no asbestos components inside the trap itself. Id. at 340. Kolar also testified Yarway did not supply “any insulation on the flanges or on the pipes leading to the steam trap.” Id. at 341.

In separate summary judgment motions, defendants argued for dismissal because plaintiffs failed to satisfy the product identification requirements of Eckenrod v. GAF Corp., 375 Pa. Super. 187, 544 A.2d 50 (1988). See e.g. Buffalo’s motion for summary judgment, 1-2. Eck enrod requires a plaintiff in an asbestos products liability suit to adduce sufficient evidence of exposure to “a product of the particular manufacturer or supplier” being sued. 375 Pa. Super, at 190-91, 544 A.2d at 52. Because Kolar identified Garlock and Crane gaskets, and not any product of defendants, plaintiffs could not meet the Eckenrod product identification requirement. See e.g. Buffalo’s motion for summary judgment, 1. Additionally, some defendants argued under Pennsylvania law, a manufacturer is not liable for replacement materials manufactured, sold or supplied by others after a product has left manufacturer’s control. See e.g. Gorman-Rupp’s motion for summary judgment, 3.

Plaintiffs responded defendants were liable for “placing [products] into the stream of commerce that required, and specifically called for the use of asbestos gaskets, like the ones Mr. Kolar as exposed to.” See e.g. plaintiffs’ response to Buffalo’s motion for summary judgment, 6. Citing Chicano v. General Elec. Co., 2004 U.S. Dist. Lexis 20330 (turbine manufacturer liable for injury from third-party asbestos insulation), plaintiffs argued defendants were liable for failing to warn. Id. at 6-7. As to Buffalo alone, plaintiffs argued the product specifications called for asbestos gaskets. Id. at 4.

In separate replies, defendants argued once again plaintiffs failed to make product identification. See e.g. Buffalo’s reply to its motion for summary judgment, 1. Defendants also argued Chicano did not control, because unlike the Chicano, turbines, the pumps and traps here did not require asbestos and defendants never suggested using asbestos. Id. at 2.

After consideration of each motion, response and reply, we separately granted defendants’ summary judgment motions and dismissed all claims against defendants by orders dated December 1,2009 and docketed December 2,2009, On December 10,2009, after eight days of trial, the case was marked settled, discontinued and ended by the trial judge. Order of Honorable Eugene E. Maier, entered 12/10/2009 and docketed 12/17/2009.

On January 19, 2010, plaintiffs filed this appeal. On February 23, 2010, response to this court’s order, plaintiffs filed a statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), which stated:

“The grounds upon which plaintiffs claim error are those raised in their responses to the summary judgment motions. These grounds are identified in general terms because, without a written opinion, plaintiffs cannot readily discern the basis for the court’s decision. By way of explanation and without waiving any other applicable grounds for appeal, plaintiffs claim error because, plaintiffs’evidence established that Stephen J. Kolar was exposed to asbestos fibers shed from products manufactured and/or supplied by [appellees]. Because genuine issues of material fact remained, defendants’ motions for summary judgement should have been denied.” Plaintiffs’ statement of matters complained of on appeal, 1-2.

II. DISCUSSION

a. Untimeliness of Appeal

As a threshold matter, we note plaintiffs filed the appeal untimely. An appeal may be taken as of right from any final order of a lower court. Pa.R.A.P. 341(a). A final order is one that disposes of all claims and all parties, is expressly defined as final by statute or is entered as a final order by express determination of the lower court. Pa.R.A.P. 341(b), (c). In general, the time for appeal is 30 days after a final order is entered. Pa.R.A.P. 903.

Here, we granted summary judgment as to less than all defendants by orders dated December 1, 2009 and docketed December 2,2009. The order marking the case settled, discontinued and ended was issued on December 10, 2009 and docketed on December 17, 2009. None of Pa.R.A.P. 903(b)’s exceptions to the 30-day time for appeal apply here, because this is not a criminal, election or public debt matter. Thus, plaintiffs had until January 16, 2010 to file notice of appeal and offer not a single excuse for their tardiness. Plaintiffs did not file this appeal until January 19,2010. Thus, the appeal is untimely.

An appellate court “may not enlarge the time for filing a notice of appeal,” absent fraud or administrative breakdown. Pa.R.A.P. 105(b). Since plaintiffs do not point to any extenuating circumstance preventing timely appeal after their December 10, 2009 settlement, the appeal should be quashed. However, we will also reach the substantive issues for a complete record.

b. Products Liability

We granted summary judgment because we found a manufacturer cannot be liable for injury caused by an asbestos part installed onto its product, where it does not make, supply Or sell said part, where product does not require the asbestos part to function properly, and where manufacturer does not call for use of said part. Reviewing the record, we found plaintiffs failed to adduce evidence sufficient for a jury to determine whether defendants’ pumps and steam traps were supplied to Grand Forks with original asbestos gaskets or whether the pumps and traps required asbestos gaskets to function properly. We also found plaintiffs failed to adduce sufficient evidence to determine whether defendants required asbestos gaskets to be used with pumps and traps. Thus, we dismissed plaintiffs’ claims.

In general, a manufacturer or seller of an allegedly defective product is liable for harm caused to the ultimate user, if it makes or sells such a product and said product reaches the user without substantial change in condition. Davis v. Berwind Corporation, 547 Pa. 260, 265, 690 A.2d 186, 189 (1997) (citing section 402A of the Restatement (Second) of Torts, adopted by Pennsylvania in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966)). Where the product is substantially changed, we inquire whether the manufacturer could have reasonably expected or foreseen such an alteration. Eck v. Powermatic Houdaille, 364 Pa. Super. 178, 192, 527 A.2d 1012, 1019 (1987).

Here, plaintiffs presented insufficient evidence to determine whether defendants’ products contained original asbestos parts to which Kolar was exposed. “In determining whether to grant a motion for summary judgment, the trial court must view the record in the light most favorable to the non-moving party and resolve any doubts as to the existence of a genuine issue of material fact against the moving party.” Gilbert v. Monsey Products Company, 861 A.2d 275, 276 (Pa. Super. 2004). As to Buffalo, bulletin 803A and Buffalo’s answers to interrogatories from the Shaeffer v. A. W. Chesterton case support only an inference the Grand Forks pumps may have originally contained some unidentified asbestos components. Kolar did not testify he worked on gaskets original to Buffalo or any other pumps. As to steam traps, Kolar testified there were no asbestos components inside the trap itself and Yarway did not supply “any insulation on the flanges or on the pipes leading to the steam trap.” Id. at 340-41. Therefore, a jury could not conclude defendants supplied the asbestos to which Kolar was exposed.

Plaintiffs’ claims may still have proceeded under the substantial change doctrine. Whether the manufacturer could have foreseen alteration of its product may be resolved by the fact-finder unless inferences are so clear a court can say as a matter of law a reasonable manufacturer could not have foreseen the change. D ’Antona v. Hampton Grinding Wheel Company Inc., 225 Pa. Super. 120, 125, 310 A.2d 307, 310 (1973).

No Pennsylvania authority addresses whether the addition of an asbestos gasket to a pump or steam trap should have been foreseeable. Generally, a component part manufacturer has no duty to warn of inherent dangers when it does not participate in design or construction of the finished product. Wenrick v. Schloemann-Siemag A.G., 523 Pa. 1, 5-6, 564 A.2d 1244, 1247 (1989).How-ever, in Chicano v. General Elec. Co., the U.S. District Court for the Eastern District of Pennsylvania considered whether Pennsylvania law required a defendant turbine manufacturer to warn of risks from third-party asbestos insulation added after delivery. 2004 U.S. Dist. Lexis 20330. Distinguishing Wenrick, the Chicano court found the defendant manufacturer liable because, it estimated, asbestos insulation would inevitably be installed on the turbine. Id. at 21.

We find Chicano distinguishable from the instant case. Here, plaintiffs provided not a scintilla of evidence asbestos gaskets would inevitably be added to defendants’ pumps and traps. In addition, they presented no evidence the pumps or traps even required asbestos parts. To the contrary, Kola’s testimony suggests the pumps were used only in low heat applications. Plaintiffs also presented no evidence defendants’ manuals or product specifications required asbestos gaskets. As to Buffalo only, plaintiffs point to bulletin 803A. Plaintiffs’ response to defendant Buffalo Pumps Inc.’s motion for summary judgment, exhibit A (bulletin 803A), 27. However, bulletin 803A does not state asbestos gaskets should be used with Buffalo pumps and neither do Buffalo’s interrogatory answers from the Shaeffer case. Rather, the bulletin and the answers show only some of Buffalo’s pumps may have been supplied with asbestos parts. Thus, plaintiff-could not possibly prove by a preponderance of the evidence defendants should have foreseen asbestos gaskets would be added to their pumps and traps.

We find persuasive authority from other jurisdictions supports our analysis. In Simonetta v. Viad Corp., the Supreme Court of Washington held under section 402A of the Restatentent (Second) of Torts an evaporator manufacturer was not liable for asbestos injuiy where the evaporator was completed without asbestos insulation, which was eventually applied but not made, sold or selected by manufacturer. 197 P.3d 127 (Wash. 2008); see also, Braaten v. Buffalo Pumps Inc., 198 P.3d 493 (Wash. 2008) (adopting the reasoning of Simonetta and holding pump, valve, and turbine manufacturers not liable to warn about a asbestos products installed on their products by others). In Lindstrom v. A-C Product Liability Trust, the U.S. Court of Appeals for the Sixth Circuit similarly declined to hold a pump manufacturer liable for injury allegedly due to third-party replacement asbestos gaskets and packing. 424 F.3d 488 (6th Cir. 2005).

Moreover, our decision to grant summary judgment reflects the social policy underlying Pennsylvania’s products liability law: personal injury losses should be allocated to those who can best mitigate and avoid such losses. The burden of personal injury is placed on the party best able to shoulder costs and administer risks. Walton v. Avco Corporation, 530 Pa. 568, 575, 610 A.2d 454, 458 (1992). Pennsylvania courts have generally found manufacturers and sellers able to allocate such losses most effectively through cost increases and insurance. Id. Therefore, liability should be borne by those who control the price and benefit from the profits. Here, liability should not fall on defendants, who did not control Grand Forks’ use of asbestos materials and who received no economic benefit therefrom.

III. CONCLUSION

For the foregoing reasons, we correctly granted summary judgment and our orders should be affirmed.


source: Caselaw Access Project

author: ZULICK, J,

license: Public Domain

text:
    Erie Insurance Exchange v. J.V.
    C.P. of Monroe County,
    no. 7929 CV 2009.

      David R. Friedman, for plaintiff.

      Joseph A. Murphy, for defendant J.V.

      David W. Skutnik, for defendants Bayne and DePack.
    July 7, 2010
   ZULICK, J,

This case arises out of a house fire that occurred at 159 Brian Lane, Effort, Pennsylvania on September 3, 2008. The house was insured by plaintiff, Erie Insurance Exchange. This subrogation lawsuit seeks recovery for property damages against two minors, J.V. and M.B., and their parents. Erie alleges that the fire was caused by the negligence and carelessness of the Voccia parents and the intentional or negligent acts of the minors.

Erie filed notice of intent to serve subpoenas upon several providers including the Monroe County Juvenile Probation Department. On April 27, 2010, the Voccias objected to the subpoena on the grounds that the information contained in the juvenile records of J.V. is protected from disclosure by statute. The Voccias also argue that the subpoena seeks information which is not reasonably calculated to lead to discovery of admissible evidence. On May 17, 2010, Erie filed a motion to strike Voccia defendants’ objection to service of subpoena. Voccias filed an answer and memorandum on June 15, 2010. A hearing was held on June 30, 2010.

DISCUSSION

42 Pa. C.S. §6354 provides:

“(a) General rule. — An order of disposition or other adjudication in a proceeding under this chapter is not a conviction of crime and does not impose any civil disability ordinarily resulting from a conviction or operate to disqualify the child in any civil service application or appointment.
“(b) Effect in subsequent judicial matters. — The disposition of a child under this chapter may only be used against him:
“(1) in dispositional proceedings after conviction for the purposes of a presentence investigation and report if the child was adjudicated delinquent;
“(2) in a subsequent juvenile hearing, whether before or after reaching majority;
“(3) if relevant, where he has put his reputation or character in issue in a civil matter; or
“(4) in a criminal proceeding, if the child was adjudicated delinquent for an offense, the evidence of which would be admissible if committed by an adult.” 42 Pa.C.S. §6354.

The current case does not fall within any of the categories included in 42 Pa.C.S. §6354. This suit is not a dispositional proceeding, a subsequent juvenile proceeding, a civil case where J.V.’s reputation or character is in issue, nor is it a criminal proceeding.

42 Pa. C.S. §6307 protects the privacy of records relating to juvenile matters. It provides the following.

“(a) General rules — All files and records of the court in a proceeding under this chapter are open to inspection only by:
“(1) The judges, officers and professional staff of the court.
“(2) The parties to the proceeding and their counsel and representatives, but the persons in this category shall not be permitted to see reports revealing the names of confidential sources of information contained in social reports, except at the discretion of the court.
“(3) Apublic or private agency or institution providing supervision or having custody of the child under order of the court.
“(4) A court and its probation and other officials or professional staff and the attorney for the defendant for use in preparing a presentence report in a criminal case in which the defendant is convicted and who prior thereto had been a party to a proceeding under this chapter.
“(5) A judge or issuing authority for use in determining bail, provided that such inspection is limited to orders of delinquency adjudications and dispositions and petitions relating thereto, orders resulting from disposition review hearings and histories of bench warrants and escapes.
“(6) The Administrative Office of Pennsylvania Courts.
“(6.1) The judges, officers and professional staff of courts of other jurisdictions when necessary for the discharge of their official duties.
“(6.2) Officials of the department of corrections or a state correctional institution or other penal institution to which an individual who was previously adjudicated delinquent in a proceeding under this chapter has been committed, but the persons in this category shall not be permitted to see reports revealing the names of confidential sources of information contained in social reports, except at the discretion of the court.
“(6.3) A parole board, court or county probation official in considering an individual’s parole or in exercising supervision over any individual who was previously adjudicated delinquent in a proceeding under this chapter, but the persons in this category shall not be permitted to see reports revealing the names of confidential sources of information contained in social reports, except at the discretion of the court.
“(6.4) The board for use in completing assessments.
“(7) With leave of court, any other person or agency or institution having a legitimate interest in the proceedings or in the work of the unified judicial system.” 42 Pa.C.S. §6307.

The only provision applicable in this case is “[wjith leave of court, any other person or agency or institution having a legitimate interest in the proceedings or in the work of the unified judicial system.” 42 Pa.C.S. §6307(a) (7). Erie argues that the information in the juvenile records is relevant and critical for an accurate and thorough evaluation of this matter. The Voccias argue that the information is statutorily protected and does not fall into any of the exceptions, as Erie does not have a legitimate interest in the juvenile court proceedings.

The Pennsylvania Superior Court addressed this issue in V.B.T. v. Family Services of Western Pennsylvania, 705 A.2d 1325 (Pa. Super. 1998). In that case, the plaintiffs, parents of a child who had allegedly been physically and sexually abused by a neighbor’s foster child, brought a tort action against the foster parents and the agency that placed the child. Id. at 1327. They sought discovery of the juvenile court proceedings brought against the foster child. Id. The Superior Court ruled that plaintiffs were not entitled to the records under the terms of the Juvenile Act, holding that plaintiffs’ claim of negligent supervision of the foster child did not overcome the privileges provided under the Juvenile Act. Id.

The Court of Common Pleas in Allegheny County also addressed the issue of the confidentiality of juvenile records in regards to civil lawsuits. In N.H. v. L.W., 43 D.&C.4th 105, 106 (Allegheny Cty. 1999), plaintiffs sought recovery for their minor child based on allegations that the child was sexually abused by a minor defendant and that the defendant parents failed to supervise and monitor their child even though they allegedly knew or should have known that he had deviant sexual propensities. A motion to quash a subpoena was granted because plaintiff did not come within the seven categories listed in 42 Pa.C.S. §6307. Id. at 113. “If the legislature wanted to permit private parties who bring civil actions against minors to obtain relevant information regarding a related delinquency proceeding, it would have made court files and records available to the parties.” Id. at 112.

Here, Erie is similarly attempting to obtain information from juvenile records to prosecute a claim that the Voccia parents were negligent in supervising their son, which lead to the fire that damaged the Klotz home. The Pennsylvania Superior Court has ruled in V.B.T., supra, that juvenile records may not be obtained for this purpose, even though portions of the file may be very relevant to a plaintiff’s case.

ORDER

And now, July 7, 2010, following a hearing, it is ordered that the Voccia defendants’ objection to the subpoena for J.V.’s juvenile records is sustained and the subpoena is quashed.


author: ALBRIGHT, J,

text:
    Eckman v. Erie Insurance Exchange

      C.P. of Montgomery County,
    no. 09-36724.

      Steven H. Lupin, for plaintiff.

      Jane M. Goode, for defendant.
    August 6, 2010
   ALBRIGHT, J,

The plaintiffs, Colleen Eckman and Glenn Eckman appeal from this court’s order, dated January 20, 2010, denying the plaintiffs’ motion for preliminary injunction. For the reasons that follow, the undersigned believes that the order should be affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

This lawsuit arises out of an insurance coverage dispute in which the insured plaintiffs, Mr. and Mrs. Eckman, claim that a conflict of interest exists for the attorney selected by their insurer, Erie Insurance Exchange, to defend Ms. Eckman in an underlying tort action, and, therefore, the Eckmans should be entitled to select, and have Erie pay for, independent counsel to defend Mrs. Eckman in that action.

By way of background, on or about June 19, 2009, Colleen Eckman was served with a complaint, in which she was named as a defendant in the case of Solid Waste Services Inc. d/b/a J.P. Mascaro & Sons v. Eckman, filed in the Montgomery County Court of Common Pleas, no. 09-18231 (“Massaro litigation”). The complaint purports to set forth a cause of action against Colleen Eckman for “defamation (libel per se),” asserting essentially that Ms. Eckman, during her republican primary election campaign for Lower Providence Township Supervisor in 2009, made certain defamatory statements for which she should be held accountable and assessed with compensatory and punitive damages. (Massaro litigation compl. at 2.) Specifically, and, perhaps, in more pertinent part, the Massaro complaint claims that Colleen Eckman “willfully, maliciously and falsely” accused J.P. Massaro of making contributions, in violation of the Pennsylvania Election Code, to the campaigns of Mrs. Eckman’s opponents in a “last minute smear campaign mailer.” (Massaro litigation compl. at 2-3.)

At the time that Ms. Eckman was alleged to have uttered the statements complained of, she and her husband were the insured beneficiaries of policy no. Q512508036A, which provided, in pertinent part, the following:

“Home And Family Liability Protection — Section II
“Personal liability coverage includes bodily injury liability coverage, property damage and personal injury liability coverage
“Personal Injury Liability Coverage our promise
“We will pay all sums up to the amount shown on the declarations which anyone we protect becomes legally obligated to pay as damages because of personal injury caused by an offense committed during the policy period.
“We will pay for only personal injury covered by this policy
“We may investigate or settle any claim or suit for damages against anyone we protect, at our expense. If anyone we protect is sued for damages because of personal injury covered by this policy, we will provide a defense with a lawyer we choose, even if the allegations are not true. We are not obligated to pay to any claim or judgment or defend any suit if we have already used up the amount of insurance by paying a judgment or settlement. ...
“What We Do Not Cover — Exclusions
“Bodily injury liability coverage
“Property damage liability coverage
“Personal injury liability coverage
“Medical payments to others coverage
“We do not cover under bodily injury liability coverage, property damage liability coverage, personal injury liability coverage and medical payments to others coverage:
“(1) Bodily injury, property damage or personal injury expected or intended by anyone we protect even if:
“(a) the degree, kind or quality of the injury or damage is different than what was expected or intended; or
“(b) a different person, entity, real or personal property sustained the injury or damage than was expected or intended.
“We do cover reasonable acts committed to protect persons and property ...
“(12) Punitive or exemplary damages and related defense costs....
“We do not cover under bodily injury liability coverage, property damage liability coverage or personal injury liability coverage:...
“(9) Personal injury arising out of willful violation of a law or ordinance by anyone we protect....
“(11) Suits for libel, slander or defamation of character made against anyone we protect if the publication or statement:
“(a) took place before the effective date of this insurance; or
“(b) was knowingly untrue. . . .
“Definitions
“ ‘personal injury’ means injury arising out of:
“(1) libel, slander or defamation of character;
“(2) false arrest, wrongful detention or imprisonment, malicious prosecution, racial or religious discrimination, wrongful entry or eviction, invasion of privacy, or humiliation caused by any of these.”

Upon receipt of the Mascaro complaint, and pursuant to the provisions of the policy, Colleen Eckman promptly forwarded a copy of the complaint to Erie, which, on June 30, 2009, issued a reservation of rights letter, in which it reserved its right to provide coverage for the claims alleged in the Mascaro complaint because “(1) intentional acts are not covered; and (2) punitive or exemplary damages are also not covered by the policy.” Subject to its reservation of rights letter, Erie agreed to investigate the claims made in the Mascaro litigation. However, due to their concerns that Erie’s representation of Ms. Eckman might be hindered, if not compromised, by what they perceived to be Erie’s conflict of interest in undertaking her defense, Mr. and Mrs. Eckman sought out the advice and private representation of the law firm of Hamburg, Rubin, Mullin, Maxwell & Lupin (HRMM&L). By letter, dated July 6, 2009, addressed to Commercial Liability Claims Specialist Sushma K. Vora, Steven H. Lupin Esquire, a partner at HRMM&L, informed Erie of his firm’s representation of the Eckmans, requesting that, on behalf of their clients, they be permitted to defend Mrs. Eckman in the Mascaro litigation “as her independent counsel with legal service paid for by Erie.” The basis of Mr. Lupin’s and his clients’ request centered upon Erie’s agreement to defend Ms. Eckman, subject to its right to “assert non-coverage at a later date” should its insured’s conduct subsequently be found or determined to be excluded from the coverage provided by the policy. Mr. Lupin asserted that the potential for such a scenario created a conflict of interest for any attorney selected and hired by Erie to represent Ms. Eckman, ostensibly due to the resultant divergence of interest of the insured and insurer brought about by the insurer’s reservation of rights letter. In her August 12 response to Mr. Lupin, Ms. Vora reiterated and confirmed Erie’s selection of the law firm of McCormick & Priore to represent Ms. Eckman “under a reservation of rights,” discounting any responsibility for “legal fees” incurred through or as a result of her hiring of private counsel to represent her in the underlying litigation.

Erie’s rejection of the Eckmans’ request that it fund the expense of the hiring of their privately retained counsel to represent Colleen Eckman in the Mascaro litigation apparently precipitated Mr. and Mrs. Eckmans’ subsequent filing against its insurer on November 12,2009 of both a complaint for declaratory judgment and a motion for preliminary injunction. The relief sought in each case was the trial court’s declaration and order that the defendant respondent Erie be required to immediately provide Colleen Eckman with independent counsel of Ms. Eckman’s choice, at Erie’s expense, to represent her in the defense of the Mascaro litigation.

Thereafter, following a hearing and argument held before the undersigned, the trial court, by order dated January 20, 2010, denied the Eckman’s motion for preliminary injunction, finding that:

“The plaintiffs have failed to establish each of the prerequisites needed to secure the granting of the extraordinary preliminary injunctive relief which they have requested.
“Furthermore, there has been no evidence produced which might warrant a finding that an actual conflict exists for the attorney chosen by the defendant insurer to represent the plaintiff, Colleen Eckman, in her defense of the underlying defamation action .... Nor, for that matter, does Pennsylvania law support the plaintiffs’ contention that, in a case such as this, a conflict automatically arises when the insurer, under the policy of insurance issued to the plaintiffs, invokes a reservation of rights clause as to the limited coverages afforded the insured. Indeed, the insurer does not breach any duty to the insured by simply providing a defense to its insured under a reservation of rights where specific coverages are either unavailable and/or denied. Rather, whenever such a situation arises where the insurance company and its insured are represented by the same attorney, Pennsylvania jurisprudence appears to have consistently resolved any claims of conflict, other than those which are proven to actually exist, by holding that the lawyer involved is professionally and ethically bound to act exclusively on behalf of and in the best interests of the insured, to whom is owed first and foremost a duty of uncompromised loyalty. (Tr. ct. order, 1/20/10.)

The filing of Mr. and Mrs. Eckman’s appeal from the order of January 20 was followed by the plaintiffs’ timely submission of their concise statement of errors complained of on appeal (1925(h) statement), which queried:

“(1) Whether this court committed abuse of discretion or error of law when it held that plaintiffs failed to establish each of the prerequisites needed to obtain preliminary injunctive relief?
“(2) Whether this court committed abuse of discretion or error of law when it held that a conflict of interest did not exist for any attorney selected and paid for by Erie Insurance to defend Colleen Eckman in the case of Solid Waste Services, Inc. d/b/a/ J.P. Mascaro & Sons v. Eckman (Mascaro litigation), Montgomery County, Pennsylvania Court of Common Pleas no. 09-18231, based upon the facts that Colleen Eckman has been sued for intentional conduct and punitive damages, neither of which are covered by the insurance policy under which Erie Insurance is defending Colleen Eckman [sic] the Mascaro litigation, and because any attorney selected by Erie Insurance has inherent and concurrent responsibilities to Erie as a third-party payor and to Colleen Eckman as a client? ”

DISCUSSION

Generally, preliminary injunctions are granted sparingly and deemed appropriate only in exceptional circumstances where the rights of the parties are clear. Jostan Aluminum Products Co. Inc. v. Mount Carmel District Industrial Fund, 256 Pa. Super. 353, 358, 389 A.2d 1160, 1163 (1978). Trial courts have reasonable grounds to deny preliminary injunctive relief when at least one of the necessary elements is not established. Summit Towne Centre Inc. v. Shoe Show of Rocky Mount Inc., 573 Pa. 637, 646, 828 A.2d 995, 1001 (2003). And, once appealed, a review of the trial court’s denial of a preliminary injunction is confined, for the most part, to an abuse of discretion standard and a determination of whether the record presents “any apparently reasonable grounds” to support the trial court’s holding. Id. at 1001. Only when the record does not support the trial court’s denial or the rule of law applied was “palpably erroneous,” will an appellate court interfere with the trial court’s decision. Id. at 1000-1001.

A trial court properly denies a request for preliminary injunctive relief where the movant has not established all of the following “essential prerequisites”:

(1) The movant’s right to relief is clear;

(2) The injunction is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages,

(3) Greater injury would result from refusing the injunction than from granting it; and the injunction will not substantially harm other interested parties in the proceedings;

(4) The injunction will properly restore the parties to their status as it existed immediately prior to the alleged wrongful conduct;

(5) The injunction is reasonably suited to abate the offending activity; and,

(6) The injunction will not adversely affect the public interest. Summit Towne Centre Inc., 828 A.2d at 1001.

It is important to realize at the outset that the purpose of the hearing before the undersigned was to address and resolve the plaintiffs’ “request for injunctive relief.” The burden of establishing one’s right to an injunctive remedy falls heavily upon the petitioners as they are required to satisfy each of the aforementioned essential prerequisites. Id. However, even though critical of the trial court’s finding that they failed to establish or prove each of those prerequisites, the plaintiffs have chosen not to identify in their statement of errors complained of on appeal which, if any, of the missing essential criteria they claimed to have satisfied in this case, which, if present, might otherwise entitle them to injunctive relief.

The Plaintiffs Failed To Establish the Requisite Criteria for Injunctive Relief

The plaintiffs contend that the trial court erred when it determined that the plaintiffs had not met the criteria necessary to secure injunctive relief. However, it is readily apparent from their motion, a review of the hearing transcript and the plaintiffs’ memorandum of law submitted in this case, that little attempt was made by them to satisfy the burden imposed upon them to identify and demonstrate the applicability of each of the six “essential prerequisites” necessary for injunctive relief. Completely missing from the proof required in this matter, are any factual or legal bases to justify the trial court’s departure from well and long established precedent in the Commonwealth of Pennsylvania. The plaintiffs’ attempt to shoulder its burden in this matter, with little more than a cursory reference to only two of the six criteria discussed above, i.e., that their right to relief is clear and their claim of irreparable harm should injunctive relief not be afforded them, fell far short of that which the law requires of them. (N.T. 12/3/09, at 60, 63.) Nor was the plaintiffs’ resort to non-binding, non-precedential citation of decisional case law from jurisdictions outside the Commonwealth either persuasive or revealing of any actual sustainable conflict, either factually based or extant as a matter of law, in the relationship between the plaintiffs and the attorneys who were chosen by Erie to represent them.

The courts in Pennsylvania have consistently held that “when a liability insurer retains a lawyer to defend an insured, the insured is considered the lawyer’s client.” Point Pleasant Canoe Rental Inc. v. Tinicum Twp., 110 F.R.D. 166, 170 (E.D. Pa. 1986). Once engaged in an attorney-client relationship with the insurer’s insured, the lawyer is ethically bound to advocate exclusively on behalf of the insured client, regardless of who hires him or her or pays for the costs of the insured’s representation and irrespective of any perceived conflicting interests. Id.

At the hearing and during the argument presented in support of the plaintiffs’ motion for preliminary injunction, counsel for the plaintiffs conceded that the current state of the law in Pennsylvania does not support his clients’ contention that Ms. Eckman is entitled to select her own defense counsel at Erie’s expense; rather, he acknowledged readily that it was his intention to convince the trial court to “decide and make new law that has not been previously definitively decided in Pennsylvania.” (N.T. 12/3/09, at 52.) Even if the plaintiffs had demonstrated that their alleged conflict existed, they do not dispute the fact that no controlling Pennsylvania case law exists which might provide this court with the guidance and authority required to grant them injunctive relief in a circumstance wherein there lies no justification or basis for a finding of the conflicting relationship which is alleged to exist.

Furthermore, the plaintiffs’ reliance upon Pennsylvania Rule of Professional Conduct 1.7, in support of their claim to entitlement to their selection of independent counsel to defend Ms. Eckman, at Erie’s expense, is misplaced. Pa.R.P.C. 1.7. Rule 1.7 provides, in relevant part:

“(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
“(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” Pa. R.P.C. 1.7(b).

In this case, retained defense counsel has only one client and that is Ms. Eckman, and thus Rule 1.7 does not apply. Moreover, the plaintiffs failed to produce any evidence that counsel retained by Erie to defendant Ms. Eckman in the Mascaro litigation has, in any way, breached his or her ethical obligations under any of the Pennsylvania Rules of Professional Conduct which might otherwise apply to the representation complained of. In actuality, as in fact, despite the selection, hiring, and funding by the defendant insurer of counsel to represent its insured plaintiff, Erie retains no control over the appointed counsel’s decisions making or judgments made regarding the defense of Colleen Eckman in the Mascara litigation; nor does there exist any evidence to the contrary. The trial court is unwilling to accept the notion asserted by the plaintiffs that any attorney selected by Erie will disregard the professional and ethical responsibilities which obligate him to represent only the interests of his client without qualification or reservation consistent with the time-honored tenets upon which there rests and relies the relationship between an attorney and his client. Having failed to demonstrate that either the law or the Rules of Professional Responsibility currently in effect in this Commonwealth support their contention that they are entitled to select counsel of their own choosing to represent Ms. Eckman in her defense of the underlying Mascaro litigation, at Erie’s expense, the trial court properly denied the plaintiffs’ motion for preliminary injunction.

CONCLUSION

For all of the aforementioned reasons, the trial court believes that the order, dated January 20,2010, denying the plaintiffs’ motion for preliminary injunction should be affirmed.

      . Pis.’ compl. at exhibit A (policy at 4-5, 14-16).

      . Pis.’ compl. at exhibit C (Vora, “reservation of rights letter,” 6/30/09).

      . Pis.’ compl. at exhibit D (Lupin and Cornish ltr., 7/6/09).

      . Pis.’ compl. at exhibit C (Vora, “reservation of rights letter,” 6/30/09).

      . Pis.’ compl. at exhibit F (Vora ltr., 8/12/09).

      . The plaintiffs apparently claim that their right to relief is clear based on their assertion that retained defense counsel has a conflict of interest in representing the insured and that representation creates irreparable harm. They further contend that such a conflict necessarily obligates Erie to cover the cost of independently retained defense counsel for Ms. Eckman.

      . See e.g., San Diego Navy Fed. Credit Union v. Cumis Ins. Soc’y, Inc., 162 Cal. App.3d 358 (1984); Nandorf v. CNA Ins. Companies, 479 N.E.2d 988 (Ill. App. 1st Dist. 1985); Parker v. Agrie. Ins. Co., 440 N.Y.S.2d 964 (N.Y. Sup. 1981).


author: REIN AKER, J,

text:
    Cincinnati Insurance Co. v. York Imperial Plastics Inc.

      C.P. of Lancaster County,
    no. CI-07-06207.

      Donald M. Desseyn, for plaintiff.

      Delano M. Lantz, for defendant Val Products.

      Kevin W. Rethore, for defendant Technical Polymers.

      Douglas R France, for defendant York Imperial Plastics.

      Christopher M. Reeser, for defendant Entec Polymers.
    July 19, 2010
   REIN AKER, J,

Before the court is the plaintiff s motion for summary judgment. At issue is, as a matter of law, whether Cincinnati Insurance Company (CIC) is obligated to defend and indemnify its insured, York Imperial Plastics Inc. (York), in the lawsuit filed by Val Products Inc. (Val), no. CI-06-04410, and whether additional defendant, Technical Polymers LLC (Technical), is entitled to “additional insured” coverage under the policy issued to York. The court will deny the motion for summary judgment.

PROCEDURAL AND FACTUAL HISTORY

On May 19, 2006, defendant Val filed a complaint against York asserting claims for breach of contract, breach of implied warranty of merchantability and breach of implied warranty of fitness for a particular purpose. York then filed a joinder complaint against Technical and Entec. Technical filed a cross claim asserting that York agreed to indemnify, defend and hold Technical harmless from all costs, expenses, damages, judgments or other loss, including costs of investigation, litigation and reasonable attorney’s fees, arising out of York’s selection, use, sale and further processing of the resins. On June 26,2007, CIC filed this declaratory judgment action requesting the court to determine the rights and obligations owed by CIC under the policy it provided to York. On November 6,2009, CIC filed a motion for summary judgment regarding the declaratory action, and on January 19,2010, the court held a hearing on the motion. Shortly thereafter counsel for all parties submitted proposed findings of fact and conclusions of law.

Sometime prior to 1998, Val, a poultry water systems manufacturer, began doing business with York, a custom plastic injection molding manufacturer. York would manufacture and supply to Val plastic housings for the poultry watering systems. Those plastic housings included nipple drinker housings and water regulator housings. From 1998 to sometime in June or July of 2003, York used a resin supplied by GE called Xenoy 5220 to produce the housings. Val alleges that York then switched to using resins from Entec and Technical without the knowledge or consent of Val. The resin supplied to York by Technical was sold pursuant to purchase order/invoice documents that were exchanged by the parties. Included was a provision requiring York to defend and indemnify Technical from any claim arising out of York’s “selection, use, sale and further processing” of the resins sold. York claims that it understood the resins it was purchasing to be either identical, or at least comparable, to the Xenoy 5220. However, with the passage of time and use in the field, the housings began to suddenly crack in large numbers. It wasn’t until after customer complaints and an investigation by Val that Val discovered the change in resin being used by York. From this discovery, the underlying action by Val arose. At all times pertinent, CIC had issued a commercial general liability insurance policy and commercial umbrella insurance policy to York. Following the filing of the complaint by Val against York, York sought a defense and indemnification from CIC under the policies.

DISCUSSION

Summary judgment may only be granted where there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1025(b). The burden is on the moving party to prove the absence of a genuine, material factual dispute. Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 412 A.2d 466 (1979). The record is to be examined by the court in the light most favorable to the non-moving parties with the non-moving parties also being entitled to the benefit of all reasonable inferences. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). The court is only to determine the existence of a material factual dispute, not the outcome of any factual disputes. Washington Federal Savings and Loan Association v. Stein, 357 Pa. Super. 286, 515 A.2d 980 (1986). If there is any doubt as to the existence of a material factual dispute, it must be resolved in favor of the non-moving parties. Thompson, 488 Pa. 198, 412 A.2d 466. The proper construction of an insurance policy is a matter of law, and a court may decide whether or not coverage exists for a claim pursuant to a summary judgment motion. Bishops Inc. v. Penn National Insurance, 984 A.2d 982, 989 (Pa. Super. 2009).

' Insurance contracts are generally contracts of adhesion; there is not equal bargaining between the parties in the transaction. Id. “Insurance policies, like all contracts, are enforceable in accordance with the language used.” Id. at 990. When a court is interpreting the language of an insurance policy, the parties’ intentions are paramount. Id. The court should “adopt an interpretation which under all circumstances ascribes the most reasonable, probable, and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished.” Charles D. Stein Revocable Trust v. General Felt Industries Inc., 749 A.2d 978, 980 (Pa. Super. 2000). Further, regardless of an insurance policy’s ambiguity, the policy is subject to a review by the court of the totality of the underlying circumstances. Id. The focus of the court is on the reasonable expectation of the insured. Id.

In this case, Dennis Paules, on behalf of York, purchased the instant insurance policies from Cincinnati Insurance. At the time Paules purchased both policies, he believed he was receiving product liability coverage that would provide coverage for the very circumstance that exists here. He was under the impression that if York made a defective product which caused property damage after it was incorporated into a customer’s final product, the policies would cover the claim. Paules sought to be protected from potential liability, and purchased the policies for this purpose. Recognizing that Paules, as the insured, had little, if any, bargaining power, the proper focus in this case is on his reasonable expectation. It was reasonable for Paules to believe the policies he was purchasing would cover claims such as the claims in this case. He paid the premiums for the policies thinking that he had in fact purchased a certain type of coverage. It was only when CIC denied coverage did he learn that he had apparently received something different, and less, than what he had expected.

The policy language itself supports coverage in this case as well. The commercial general liability policy reads:

“(1) Insuring agreement
“(a) We will pay those sums that the insurance becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies. ...
“(b) This insurance applies to ‘bodily injury’ and ‘property damage’ only if:
“(1) the bodily injury or property damage is caused by an ‘ occurrence that takes place in the coverage territory. ’ ”
“Occurrence” is defined by the policy as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” In determining whether or not an event is an accident or occurrence, the court should view it from the standpoint of the insured. Donegal Mutual Insurance Company v. Baumharnmers, 595 Pa. 147, 938 A.2d 286 (2007). An accident refers to an unintentional event that occurs unexpectedly. Kvaerner Metals of Kvaerner U.S. Inc. v. Commercial Union Insurance Company, 589 Pa. 411, 908 A.2d 888 (2006).

CIC asserts that the Kvaerner case, 589 Pa. 411, 908 A.2d 888, is controlling. In that case, the court determined that faulty workmanship did not constitute an occurrence. However, that case is distinguishable from the present case. The failure of the nipple drinkers out in the field was completely unexpected and unintentional. In fact, their failure was not expected by any party involved. York did not intend to produce a product for Val that would fail and interfere with their ongoing business relationship. Testimony by Paules of York was that he expected the Technical and Entec resins to perform the same as the GE Xenoy 5220. What transpired after the products were in use constitutes an occurrence under the policy in this case.

CIC claims that a number of exclusions in the policy preclude coverage. The first of those is the contractual liability exclusion. However, this exclusion states that the contractual liability exclusion does not apply to damages that the insured would have had in the absence of the contract or agreement. Furthermore, it hasn’t even been determined in the underlying case whether using GE Xenoy 5220 was an essential term of the contract between Val and York.

Additionally, when a court determines that an ambiguity in an insurance policy exists, the ambiguity should be construed against the insurer. Standard Venetian Blind Company v. American Empire Insurance Company, 503 Pa. 300, 469 A.2d 563 (1983). An ambiguity exists if the policy language is capable of more than one interpretation. Id. Ambiguities exist in the remaining exclusions CIC relies on.

First, the “damage to your product” exclusion at paragraph 2.1c of the policy and the “damage to your work” exclusion at paragraph 2.1 of the policy are ambiguous when read in conjunction with the policy. The commercial general liability policy states that it provides coverage for “products-completed operations” and property damage arising out of an “occurrence.” The declaration page for the policy indicates that York has limits of insurance of $1,000,000 for “products-completed operations coverage.” However, exclusions 2.1c and 2.1 appear to attempt to exclude completed operations. The exclusions read

“(k) Damage to your product
“ ‘property damage’ to ‘your product’ arising out of it or any part of it.
“(1) Damage to your work
“ ‘Property damage’ to ‘your work’ arising out of it or any part of it and included in the ‘products-completed operations hazard.’
“This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on behalf of your subcontractor.”

As an ambiguity exists, it shall be properly construed against CIC.

CIC also attempts to get out of providing coverage under exclusion M: damage to impaired property or property not physically injured. This exclusion reads as follows

“ ‘property damage’ to ‘impaired property’ or property that has been physically injured, arising out of
“(1) a defect, deficiency, or inadequacy or dangerous condition in ‘your product’ or ‘your work’; or (2) a delay or failure by you or anyone acting on your behalf to perform a contract or agreement in accordance with its terms. This exclusion does not apply to the loss of use of other property arising out of sudden and accidental physical injury to ‘your product’ or ‘your work’ after it has been put to its intended use.”

Property damage is defined under paragraph 20 on page 19 of 22 as:

“(a) Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or
“(b) Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the ‘occurrence’ that caused it.”

Impaired property is defined in paragraph 11 on page 16 of 22 as:

“Tangible property, other than ‘your product’ or ‘your work’ that cannot be used or is less useful because
“(a) It incorporates your product or your work that is known or thought to be defective, deficient, inadequate or dangerous; or
“(b) You have failed to fulfill the terms of a contract or agreement; if such property can be restored to use by: (a) the repair, replacement, adjustment or removal of your product or ‘your work’; or (b) your fulfilling the terms of the contract or agreement.”

CIC reads this exclusion as working in its favor and excluding coverage in this case. However, this exclusion is subject to another reasonable interpretation. As York points out in its brief in opposition to the summary judgment motion, the policy could be read to cover damages occurring and accruing from the loss of use after the nipple housings or regulator housings were put into the final fully assembled product, but not the replacement of the parts. Read this way, the policy would appear to cover the damages claimed by Val minus the cost of replacement housings. As there are at least two reasonable interpretations of this provision, it is ambiguous. Therefore, it must be construed against the insurer, CIC, and in favor of the insured, York.

CIC also relies on Nationwide Mutual Insurance Company v. C.S. International Inc., 562 F.3d 591 (3d Cir. 2009) to support its motion for summary judgment. In that case, the court would not provide coverage for a claim based on faulty workmanship and because a breach of contract does not constitute an occurrence. In Nationwide, the insured provided defective chondroitin that was deficient, of an improper composition and unusable for its intended purpose. The purchaser of the chondroitin mixed it with another compound making it into a nutritional tablet. The product in that ease was unusable because of its own characteristics. There was no sudden occurrence. In the present ease, however, the nipple housings and regulator housings suddenly cracked after the finished product was in use by customers. Further, it has not been determined whether using a specific type of resin was a material term of the contract between Val and York. Therefore, relying on Nationwide to grant the motion for summary judgment would be improper.

The umbrella policy at issue in this case also provides coverage. Just as in the commercial general liability policy, the umbrella policy requires an “occurrence” before coverage is applied. As discussed above, the court finds the “occurrence” was the sudden and unexpected cracking of the final products in this case. The exclusions that CIC again attempts to rely on under the umbrella policy do not apply in this case for the same reasons stated previously in this opinion that the exclusions did not apply under the general liability policy.

Lastly, CIC also seeks to escape its duty to defend and indemnify Technical in its summary judgment motion. However, the terms and conditions in the purchase order/ invoice documents exchanged between York and Technical constitute an “insured contract” as defined by the commercial general liability policy and the umbrella policy. CIC admitted that is was in fact an “insured contract” at the summary judgment motion hearing. Under the terms of both of the policies, coverage is provided for “insured contracts.” Therefore, CIC has a duty not only to defend and indemnify York, but also Technical in the underlying action.

ORDER

And now, July 19, 2010, upon consideration of plaintiff Cincinnati Insurance Company’s motion for summary judgment, it is hereby ordered that summary judgment is denied.

      . 13 Pa.C.S. §2314.

      . 13 Pa.C.S. §2315.


author: LASH, J,

text:
    Kelly v. Kelly

      C.P. of Berks County,
    no. 08-947.

      David S. Sobotka, for plaintiff.

      Jacqueline R. Mark, for defendant.

      August 3, 2010
   LASH, J,

This court held a custody trial on June 29 and July 30, 2010. At issue was the petition of defendant, Jeffrey Kelly (Father), to modify the custody order entered in this case on July 22, 2008. We enter the following findings of fact:

I. FINDINGS OF FACT

(1) Plaintiff, Donine Kelly (Mother), is an adult individual who currently resides at 2867 Pricetown Road, Temple, Berks County, Pennsylvania.

(2) Defendant, Jeffrey Kelly (Father), is an adult individual who currently resides at 259 Wheatfield Road, Sinking Spring, Berks County, Pennsylvania 19608.

(3) The parties are the natural parents of two minor children, Dylan Kelly, born April 2, 2003, and Jaden Kelly, born January 17, 2005, (minor children).

(4) The parties are husband and wife, having been married on June 22, 2002. They resided together until October 28, 2007 when Father moved from the marital residence. A divorce action is pending.

(5) Initially upon separation, Mother remained in the residence and Father obtained an apartment. On February 5, 2008, Mother moved from the marital residence into the home of the maternal grandparents. Shortly thereafter, Father moved back into the marital residence.

(6) In November of 2009, Mother moved from the home of the maternal grandparents into her current residence, which she owns. She resides there with the minor children. The home is suitable for rearing the minor children.

(7) Father currently resides with his paramour, Michele Faust. As stated, the residence is the former marital home and is suitable for rearing the minor children.

(8) Mother’s residence is in the Oley Valley School District and Father’s is in the Wilson School District.

(9) At all times post-separation, Mother retained primary physical custody of the minor children. Initially, the arrangement was informal, with Father returning to the marital home to visit with the minor children while Mother would run errands. Eventually, Father began taking the minor children to his apartment usually for two nights a week, with the visits eventually extending through overnight.

(10) On or about January 22, 2008, Mother filed a custody complaint, resulting in a custody order entered by this court on July 22,2008. The order provided, among other things, that Mother would have primary physical custody with Father to have partial custody as follows:

(A) During the school year every Tuesday and Thursday from 4:45 p.m. to 7:15 p.m. and every other weekend from Friday at 4:30 p.m. through Sunday at 6:30 p.m., and

(B) During the summer every Tuesday from 4:30 p.m. to 7:30 p.m. and every other weekend from Friday at 4:30 p.m. through Monday at 9 a.m. Following the weekend of Father’s partial custody, Father would have Thursday overnight from 4:00 p.m. through Friday at 4:30 p.m.

(11) The order of July 22, 2008 has been modified to address collateral matters, stemming from several contempt petitions and requests for special relief filed by the parties.

(12) On or about February 10, 2009, Father filed the within petition to modify the order of July 22, 2008, arguing that he should be awarded primary physical custody. Father alleged, among other things, that the minor children want to reside with him, that Mother does not properly care for the minor children, delegating that responsibility to the maternal grandmother, who is not a fit person to care for them, that Mother, as well as the maternal grandmother, make derogatory statements about Father to the minor children, and that Mother is unable to control her anger toward Father which affects the custodial arrangement.

(13) Mother is currently employed as a physical educad on/health teacher in the Hamburg School District working Mondays through Fridays, from 7 a.m. to 3:30 p.m. The school does provide some flexibility, allowing Mother time off if important matters arise concerning the minor children. Further, Mother does not work during the summer months.

(14) Father is self-employed as a retirement planner, working from his home with flexible full-time hours during the weekdays, working generally from 8:30 a.m. to 4 p.m.

(15) The maternal grandmother provides daycare services for the minor children on weekday mornings from approximately 7 a.m. to 8:30 a.m. until the minor children begin school, then after school for a short period of time until Mother is available from work.

(16) The minor child, Dylan, attends Oley Valley Elementary School. He will be starting the second grade in the 2010-2011 school year.

(17) The minor child, Jaden, attends preschool at Little Angels Academy at the Spring Valley Church of God. Previously, Jaden had attended preschool at Atonement Lutheran Christian Preschool, however, Mother unilaterally transferred Jaden to Little Angels over Father’s objection. Previously, the minor child, Dylan, had attended Atonement Lutheran Christian Preschool.

(18) An independent psychological evaluation was performed by Timothy E. Ring, Ed.D. Dr. Ring interviewed the parties, the minor children, Father’s paramour, and the maternal grandmother, and reviewed documentation, including information received from medical and educational sources, parental and child questionnaires, and also conducted several tests, including the Minnesota Multiphasic Personality Inventory-2 (MMPI-2), the Millón Clinical Multiaxial Inventory — III (MCMI — III), the Ackerman-Schoendorf Scales for Parent Evaluation of Custody (ASPECT), the Bricklin Perceptual Scales (BPS), and the Children’s Behavior Checklist (CBCL). Dr. Ring prepared a written report dated January 11,2010, which was submitted to the court.

II. DISCUSSION

Both parties are seeking primary physical custody. In making disposition, this court considered the testimony of the parties, the maternal grandmother,. Donna Renninger, the paternal grandmother, Lynn Fox, Father’s paramour, Michele Faust, Cindy Bickley, the director of Atonement Lutheran Christian Preschool, Christopher J. Spohn, the principal of the Hamburg School District, Aaron Menapace, the athletic director at Hamburg High School, Kelly Kline, Esquire, a friend of Mother’s, John Schroll, a business associate of Father’s, the testimony and report of Dr. Ring, and the exhibits submitted by the parties. By agreement of the parties, neither child participated in the proceedings.

Father believes the custody order should be modified to provide that he be the primary custodian for two reasons. First, Father believes he has excellent qualities as a parent and would provide an appropriate home for the minor children. Secondly, Father complains that Mother engages in vindictive and obstreperous conduct, creating difficult and unnecessary obstacles, which hinders his ability to co-parent and which harms the minor children.

Father testified that when the parties’ resided together they shared in the caretaking responsibilities. Fie has been and has always wanted to be extremely involved in all aspects of the minor children’s lives. When it is his turn to have custody, he devotes his time and energy in activities with the minor children. He loves them a great deal and has developed an extremely close bond. The paternal grandmother visits and also enjoys a healthy interaction with the minor children. Based on the fact that he works from his home and has an extremely flexible schedule, he is always available for the minor children. He can coordinate his schedule around the minor children’s activities and needs.

Father states he wants to work with Mother to provide the minor children with a healthy environment. The parties live only approximately 10 minutes apart and with Father’s flexible schedule, there is no reason why the parties should not be able to work together, putting the minor children first.

Father testified, however, that Mother engages in conduct which makes it difficult, if not impossible, to work in harmony. She makes decisions regarding the minor children without consulting Father. She has been inflexible on numerous occasions, refusing to accommodate Father’s needs or modify the custody schedule, even though she would suffer no prejudice from doing so. She and the maternal grandmother have been disparaging toward Father. Mother has been argumentative and emotional, making it difficult to even communicate with her on occasion.

Father cites several examples. Father decided to take the minor children to Disney World. Fie provided Mother with approximately nine months prior notice of the dates he intended to travel to Florida for this purpose, having arranged to rent a timeshare owned by his business associate, John Schroll. Mother responded by stating that Father should not schedule anything until she decided when she would be taking her vacation, as the custody order provided that Mother’s vacation schedule would have priority for the year in question. Subsequently, Mother advised Father that her family was having a get-together at a place at the shore, which conflicted with Father’s schedule. The matter could not be resolved amicably and ultimately, Father was required to return from Disney World two days early. As it turned out, Mother misrepresented the dates. Her vacation did not actually start until after Father’s return date. The dispute caused Father to have to obtain new airline tickets at an additional cost of $600. This matter was a basis for Father’s filing a petition for contempt of court, which is pending before the court and shall be resolved by separate order.

On another occasion, Father volunteered to participate in the “watch dog” program at Dylan’s school. The program permits fathers to share in the daily scheduled activities of the minor child for the entire school day. At the end of the school day, school personnel approached Father and asked whether he wanted to take Dylan with him, rather than have Dylan ride the school bus home. Father welcomed that idea and took Dylan. Under the customary practice of the parties, Dylan would normally ride the school bus to the home of the maternal grandmother and would stay there until Mother would pick him up. In this instance, Father drove directly to the maternal grandmother’s house, getting there prior to the time the school bus would have dropped off the minor child. The maternal grandmother was home and received the minor child. Even though Father did nothing but transport the minor child, and even though the minor child got home from school early, not late, and that there were no other problems, Mother nevertheless contacted the school advising the school that the school permitting Father to take the minor child home with him was a violation of the court order. The school responded by restricting Father from access to the school for any purpose.

On another occasion, Father prepared to celebrate the birthday of one of the minor children at his home, by also including a birthday celebration for Father’s dog. Unfortunately, shortly before the celebration, the dog died. Under the custody schedule, Father would not have seen the minor children prior to the birthday celebration. He wanted to meet with the minor children in person to advise them of the dog’s death prior to the birthday celebration to permit them time to grieve and to prevent the birthday celebration from being affected more than what was necessary. Father requested some time to meet with the minor children, for as short a time as one hour, to advise them of the dog’s death. Mother initially would not respond, then finally reluctantly agreed, but insisted on make-up time.

Another matter which resulted in a petition for contempt was Mother’s unilateral decision to transfer Jaden from Atonement Preschool to Little Angel’s Preschool. According to Father, Mother’s stated reason was that the Little Angel’s Preschool was closer to her home. Father raised concerns. First, the elder minor child had thrived at Atonement, the parties had previously agreed that both minor children would attend Atonement, and there was no reason to transfer him. Secondly, Father perceived that the religious doctrine provided by Little Angels was substantially different from Atonement Lutheran. Most importantly, Father objected because Mother chose to do this without first discussing the matter with him. The matter proceeded to court. The court advised the parties to try to work this out by agreement, with the help of Dr. Ring, who at that time was engaged in the evaluation process. No agreement was reached. Nevertheless, Mother, without court approval or Father’s consent, unilaterally transferred Jaden to Little Angels.

In a similar manner, Mother cut off the paternal grandmother from her role as baby sitter. At a time when Father was employed at a bank, both parties were unavailable during the day to care for the minor children. The two grandmothers shared baby-sitting duties and, in fact, the paternal grandmother watched the minor children for as much as three days per week. Without explanation and without prior notice to Father or the paternal grandmother, Mother contacted the paternal grandmother to advise her that her “services” were no longer required. Since that time, Mother and the paternal grandmother have had only sporadic contact. The paternal grandmother’s contact with the minor children is solely through Father.

Father believes that Mother’s actions demonstrate her need to control the minor children’s lives and Father and his mother’s involvement with them. Fler actions are not based on any sense of what is best for the minor children but solely out of her controlling nature and vindictiveness. Father states that he is trying to work with Mother and work through these issues, but has been unable to do so.

Father also has concerns about the maternal grandmother. He believes she is overly meddlesome. Further, she is inclined to make negative statements about Father. Father believes her involvement can be harmful to the minor children.

As stated, Mother seeks to retain primary custody of the minor children, although she is willing to grant Father additional time. In her presentation, she sets forth that she has been the parent primarily responsible for the care and the maintenance of the minor children, both before and after the parties’ separation. She disputes Father’s testimony that they ever shared the parenting responsibilities. In fact, she moved to reduce her employment duties to part-time during the school year to enable her to spend more time with the minor children. Conversely, when Father isn’t working, he is often engaged in his own recreational activities, including playing softball, basketball, golf, cards or other activities with his friends. Recently, Father has become more involved, which, according to Mother, occurred after he filed the petition to modify.

Mother also posits that the quality of her parenting has been exceptional. She has an extremely close bond with the minor children. She is very attentive to the minor children’s educational needs. For example, her basis for seeking to have Jaden transferred from the Atonement preschool to Little Angels preschool was her perception that Atonement did not adequately prepare the parties’ other child, Dylan, for his entrance into the elementary school system. She believed that his understanding of the alphabet, and corresponding reading and writing skills, was not at an acceptable level. As a result, she tutored Dylan over the summer prior to his commencement in Kindergarten.

Mother has been the parent involved in the minor children’s medical needs. She has been active in enrolling the minor children in extracurricular sporting activities and attends their practices and games. She oversees every aspect of the minor children’s lives. As a teacher, she brings a strong background for interacting with children, communicating with them, helping them to grow, in addition to the obvious educational advantages. She is also well organized and maintains appropriate and consistent discipline for the minor children.

Mother disputes Father’s categorization of her as hostile toward him and inflexible in working with him as a co-parent. Regarding the preschool transfer issue, Mother believes her reasoning was appropriate. After the parties agreed, with the court’s approval, to have Dr. Ring make a recommendation on this issue, Mother sought to get an answer from Dr. Ring but was unable to do so prior to the deadline for enrolling Jaden. Accordingly, she enrolled Jaden in both schools, and continued to seek Dr. Ring’s recommendation, finally advising him that if she did not hear from him within a certain time frame, she would assume that her enrollment of Jaden in a new preschool would be acceptable. When she heard nothing from Dr . Ring, she considered the matter closed.

Regarding Father’s Disney trip, Mother believes she acted appropriately and in the best interests of the minor children by requiring Father to return early from the trip. According to Mother, Father was initially out of order by scheduling the Disney trip prior to Mother scheduling her vacation, due to the custody order providing that Mother would have first choice of the vacation dates during the year in question. Mother did not believe that she should have to work around Father’s schedule when she had priority for that year, particularly since there were issues that she had to resolve for her vacation schedule, such as coordinating with other family members who also had custodial schedules to consider, and discounts she could receive if she scheduled her vacation on certain weeks. Subsequently, after her schedule was determined, she noted that her vacation would commence immediately after Father’s return from Disney. She believed that the minor children would not have enough time to rest from the Disney trip prior to commencing another vacation with her. Accordingly, she felt it appropriate to require Father to return two days early to give the minor children an appropriate rest time.

Regarding Father’s transporting Dylan home from school, rather than have him ride the school bus at the expiration of the watch dog program, Mother states that Father’s taking the minor child home from school was a violation of the custody order. Accordingly, she contacted the school and advised them of this. They then responded by ruling that Father would not be permitted to visit the minor child at school for the watch dog program or for any other reason. However, Mother had no problem with Father visiting the minor child at school, merely taking him from the school prior to his scheduled appointed time under the custody order. Accordingly, she contacted the school and followed through with legal documentation setting forth that Father could continue in the watch dog program and otherwise visit with the minor child.

Regarding Father’s request that he be permitted additional time with the minor children prior to Jaden’s birthday party to advise them of the death of Father’s dog, Mother testified that she had no problem with Father’s request and believed that it was appropriate. However, Mother did not want Father to discuss this until immediately prior to Father’s party, as Mother had also scheduled a birthday party for Jaden the weekend prior to Father’s party, and did not want her party ruined by the bad news. She states that she had no problem with Father having the entire night, switching nights with her, and disputes Father’s statement that he was limited to a one hour conference with the minor children.

Mother admits that she ended the paternal grandmother’s caretaking of the minor children, deciding that this was best because the arrangement was becoming impractical, requiring the minor children to unnecessarily travel to several households.

Mother does not accept Father’s representation that he is willing and capable of becoming the primary custodian, to assume the same caretaking responsibilities that have been done by Mother over the years. Mother sees Father as a man who wants to have time with the minor children, to have fun with the minor children, but one with little interest in performing the difficult duties of parenting. She testified that Father did not attend many of the doctors’ visits, even though she advised him of the dates and times. While he attended some of the minor children’s sporting events, he also is sometimes absent, and would also leave early to participate in his own sporting events. Additionally, Father would object to activities, such as soccer, if the practices or games were held on nights he had the minor children. According to Mother, Father would have to have Mother keep him updated on the minor children’s schedules, even though he had schedules made available to him previously. In essence, the theme of Mother’s presentation was that Father talks a good game, but continues to be dependent upon Mother to maintain appropriate structure for the minor children.

Dr. Ring was very instructive in both his report and his testimony. He perceives that both parents are “good people” and have strong parenting skills. Mother’s parenting method is more structured. She has a strong dedication to her minor children. Father is less structured, providing spontaneity, affection and enthusiasm. Dr. Ring states: “This man likes to have fun with his children and clearly, they know that about their father. ” Both parents’ styles sufficiently address the minor children’s needs.

However, Dr. Ring has serious concerns about the parties ability to interact. There is a lack of communication. There is also a substantial amount of mistrust and lack of cooperation, which Dr. Ring primarily attributes to Mother. When considering Mother’s inability or refusal to work with Father, Dr. Ring chose very strong words in his testimony, labeling Mother as a “horrible co-parenting candidate.” Fie cited Mother’s position on the Disney World episode as “absurd.” Mother’s actions apparently stem from several factors, including her perception that Father cheated on her during the marriage, that he was not committed to her or the minor children, that she had to treat Father as “another child” which she had to parent, and that during the marriage, he would rather be out with his friends rather than investing his time or efforts with the family. She is resentful that she got into the marriage, that she committed to him, including paying off his debt and buying a home, while in exchange, he made little or no sacrifice. Dr. Ring also observed that the maternal grandmother fuels Mother’s “fire of resentment.”

Dr. Ring recommends that the parties share legal custody, with Mother to have primary physical custody and Father to have an increase in parenting time, possibly overnights on his Thursdays. Dr. Ring also expresses that the parties need therapeutic support, in the form of a parent coordinator, who would be present to make decisions on relatively minor matters when the parties cannot agree. Finally, Dr. Ring recommends that the maternal grandmother should stay out of the parties’ business and, particularly, refrain from making negative statements regarding Father, particularly in the presence of the minor children.

In his testimony, Dr. Ring went further. He stated that, in a general sense, a shared physical custody arrangement should be an option, given each parties’ strong parenting skills and the strong attachment the minor children have to both parents. However, he declined to recommend shared physical custody because of the strained relationship of the parties, falling back on the current arrangement with Mother as primary custodian, due to her dedication and skill in addressing the minor children’s needs, and to retain continuity and stability. However, as Mother is the catalyst for the parties’ relationship issues, Dr. Ring’s recommendation poses an irony. Being named as the primary custodian in lieu of shared custody awards Mother a benefit directly resulting from the conflict she is creating. Dr. Ring also warns that if the parties’ relationship does not improve, the minor children’s psychological and emotional health will be affected, and by the time they are teenagers, substantial problems will manifest.

The paramount concern in a child custody proceeding is the best interests of the child. Costello v. Costello, 446 Pa. Super. 371, 375, 666 A.2d 1096, 1098 (1995). A determination of what is in the best interests of a child is made on a case-by-case basis and must be premised upon consideration of all factors which legitimately have an effect upon a child’s physical, intellectual, moral and spiritual well-being. Alfred v. Braxton, 442 Pa. Super. 381, 385, 659 A.2d 1040, 1042 (1995).

It is abundantly clear from this record that the overriding concern jeopardizing the continued welfare of these minor children is the parties’ inability to trust each other, to communicate, or to work as co-parents. Taken separately, either party would be considered a good parent. Mother’s parenting skills are exceptional and superior to Father’s, As her presentation attests, which this court accepts, Mother is attentive, disciplined, and educated on the minor children and their issues. She is organized and consistent. She has developed short and long-range goals for the minor children and executes on those goals. In the meantime, she is affectionate and loving. The minor children have a tremendous bond with her. For his part, Father also has an exceptional relationship with the minor children. Although not as organized or focused as Mother, Father is quite capable of taking care of the minor children on a full-time basis.

However, rather than recognize each party’s strengths, the parties refuse to cooperate, continuing to build animosity, and causing potential harm to the minor children. Father resents Mother for being inflexible, micromanaging the minor children’s lives, and attempting to control him. Mother has little respect for Father, whom she perceives as another child, who wants to go out and play, whether it’s with his friends or with the minor children, but is not willing to put the necessary time and effort into being a proper parent.

The parties’ criticisms of each other has some merit. In Mother’s case, her reaction to Father bringing Dylan home from school rather than having him ride on the school bus was an overreaction. All Father did was transport the minor child to the maternal grandmother’s home, without any deviation. Mother should have seen this as an opportunity for Father to spend some time with his child at the end of the watch dog program, and as a positive. Instead, she saw it as a violation, angering her enough to complain to the school and create acrimony when none was necessary.

The Disney incident also represented Mother’s inflexibility. Initially, both parties were inflexible, as Mother should have tried to work around Father’s schedule, particularly since he gave her plenty of notice, although Father could also have been more flexible and have been willing to switch times, which he apparently was able to do. That being said, there was no reason to require Father to return early and shorten what was otherwise a wonderful trip for the minor children, costing Father unnecessary funds, particularly in light of her own testimony that one factor in her choice as vacation dates was to save herself approximately $400.

Mother’s removal of the paternal grandmother as a caretaker was also highhanded. This was not simply firing a baby sitter, this involved the paternal grandmother who also loves the minor children and has a strong bond with them. If the concerns were merely logistical, as suggested by Mother, the parties could have sat down and worked out some alternative arrangement.

Regarding Father, this court agrees that Father has not established the presence of parental skills to the same extent as Mother. If he expects to have Mother consider him as an equal partner, his focus and commitment must improve. We find that Father can also be difficult to deal with, as evidenced by the incident involving the minor children learning of the death of the dog. Both parties clearly recognized that the news would be traumatic to the minor children. Both parties also recognized that the timing was very important. However, Father failed to consider Mother’s needs regarding her party for Jaden, construing Mother’s insistence on the timing, as Mother simply being difficult. If the parties were able to communicate, this matter could have been handled very easily.

Father also apparently refused to hear Mother out regarding her transfer of Jaden to the new preschool. If Atonement had failed to adequately prepare Dylan for school, then Mother’s concerns were reasonable. Once again, Father dismissed Mother’s opinion as mere evidence of her attempting to control and make unilateral decisions.

Having considered all of these factors, this court finds that Mother is best suited to retain primary physical custody. As stated, her parenting method is superlative. Father has not demonstrated the same commitment or capacity. Significantly, Dr. Ring recommended that Mother have primary physical custody, even after factoring in his pointed criticism about Mother’s hostility and disrespect toward Father.

That being said, it is imperative that Mother set aside her opinion of Father and treat him as a co-equal, for the minor children’s sake. She is simply not entitled to foreclose Father from having an equal say in important decisions regarding the minor children. She must also learn to work with Father, to be more flexible, to consider the “spirit” of the custody order rather than the letter, when appropriate. We caution that if Mother’s conduct toward Father does not improve, that it could be a basis for revisiting the order. Additionally, the maternal grandmother’s meddling shall cease. If she continues, it could result in her being restricted from access to the minor children.

Father will also have to adapt his approach. His involvement has improved and it should continue. He, as well as Mother, should listen to what the other party has to say, rather than simply dismiss it as another attack.

Father’s partial custody time should be expanded in accordance with Mother’s proposed schedule. Accordingly, we enter the following order:

ORDER

And now, August 3, 2010, after trial held, it is hereby ordered that the rights and duties of the parties to their minor children, Dylan Kelly, born April 2, 2003, and Jaden Kelly, bom January 17, 2005, (minor children), shall be as follows:

(1) The parties shall share legal custody of the minor children.

(2) Plaintiff, Donine Kelly (Mother), shall have primary physical custody of the minor children.

(3) Defendant, Jeffrey Kelly (Father), shall have partial custody consisting of:

(A) During the school year, Week 1 — Tuesday from 4:30 p.m. to 7:15 p.m. and Thursday overnight from 4:30 p.m. to Friday at 9 a.m. (Father takes the minor children to school on Friday);

(B) During the school year, Week 2 — Tuesday from 4:30 p.m. to 7:15 p.m. and Thursday from 4:30 p.m. to 7:15 p.m. and Friday from 4:30 p.m. to Sunday at 6:30 p.m.;

(C) During the school year, if the minor children are off from school and Mother is working, then Father will be permitted to have the minor children for the day instead of his scheduled evening time. If it is a day that Father does not have custody and the minor children are off from school, then Father would have the minor children until Mother has finished work;

(D) Summer schedule — Week 1 — Tuesday from 4:30 p.m. to 7:30 p.m. and Thursday at 4:30 p.m. overnight to Friday at 4:30 p.m.; and

(E) Summer schedule — Week 2 — Monday from 4:30 p.m. overnight to Tuesday at 4:30 p.m. and Friday at 4:30 p.m. to Monday at 9 a.m. (extended weekend).

(4) The parties shall share the following holidays as follows:

(A) Easter: period of custody shall divided as the Saturday prior beginning at 4:30 p.m. to Easter Sunday at 11:30 a.m. (beginning time period); and Easter Sunday from 11:30 a.m. to 7:30 p.m. Sunday evening. Mother shall have the beginning time period in odd-numbered years and Father shall have the beginning time period in even-numbered years.

(B) Memorial Day/4th of July/Labor Day: period of custody shall be from 10 a.m. to 7 p.m. with Mother having 4th of July on even-numbered years and Mother having Memorial Day and Labor Day on odd-numbered years. Father will have 4th of July on odd-numbered years and Father will have Memorial Day and Labor Day on even-numbered years.

(C) Thanksgiving: period of custody shall be from night prior beginning at 4:30 p.m. to Thanksgiving at 11:30 a.m. (beginning time period); and Thanksgiving from 11:30 a.m. to 7:30 p.m. with Mother having the beginning time period in odd-numbered years and Father having the beginning time period in even-numbered years.

(D) Christmas: period of custody shall be from noon on Christmas Eve Day until Christmas at noon (beginning time period); and Christmas at noon until December 26 at noon. Mother shall have the beginning time period in even years and Father shall have the beginning time period in odd years.

(E) The parties acknowledge and agree that should any of the within designated holidays occur on a Monday immediately following a parties’ partial custody weekend, then in that event the party having partial custody shall maintain custody of the minor children for that holiday Monday until 4 p.m.

(5) Mother’s Day/Father’s Day: Mother shall have custody on Mother’s Day and Father shall have custody on Father’s Day each year. The time period shall be from 10 a.m. to 7 p.m.

(6) Vacation: The parties shall have the right to one week vacation consisting of seven consecutive days each year during the summer. Each party shall provide the other with at least 90 days written advance notice of their choice under this paragraph. In the event of a conflict, Father’s choice shall prevail in even-numbered years and Mother’s choice shall prevail in odd-numbered years.

(7) Reasonable telephone contact: The parent having physical custody of the minor children shall make reasonable efforts to maintain an open phone line in his/her residence from 7:40 p.m. until 8 p.m. each evening so that the minor children may place calls to, or receive calls from, the other parent. In the event the minor children are unavailable during that time, the parent having custody shall use an answering machine/voicemail to receive messages from the other parent. The parent having custody shall ensure that the minor children are aware of any missed calls as soon as possible. Neither party shall use caller ID, call block, or any other device or service which limits telephone access to the minor children. Each child shall be permitted to speak for a minimum of 10 minutes with the other parent, unless the minor children choose to conclude the call at an earlier time.

(8) Transportation: The parties shall equally share transportation of the minor children. Unless otherwise agreed, the party taking custody shall be responsible for picking up the minor children from the other party at the commencement of their period of partial custody.

(9) Extracurricular: The parties shall consult with each other prior to enrolling the minor children in any extracurricular activities and said enrollment shall be by agreement of the parties. Each party shall have the right to attend educational and extracurricular activities, including but not limited to watch dogs, field trips, classroom events, and all other activities where parents are welcome to visit or participate.

(10) The attached appendix shall be made a part of the within order.

APPENDIX

Certain rules of conduct which generally apply to custody matters are set forth below and are binding on both parties, the breach of which could become the subject of contempt proceedings before this court, or could constitute grounds for modification of this order. If these general rules conflict with any specific provisions of the order, the order shall prevail.

(1) In addition to the foregoing rights, both parties shall also have the following rights with respect to the children:

(A) The right to reasonable telephone contact with the children when they are in the other parent’s custody.

(B) The right to be fully informed concerning the progress of the children in school and the children’s medical status, including the right to obtain the necessary information directly from the children’s school or medical practitioner; and

(C) The right to be informed in advance before any important decisions are made concerning the children and the opportunity to participate in those decisions.

(2) In the event of any serious illness of the children at any time, any party then having custody of the children shall immediately communicate with the other party by telephone or by any other means, informing the other party as to the nature of such illness, and during such illness, each party shall have the right to visit the children as he or she desires consistent with the proper medical care of the children.

(3) Neither party shall alienate nor permit to attempt to alienate the children from the other party. While in the presence of the children, neither parent shall make any remarks or do anything which is derogatory or uncomplimentary to the other and it shall be the duty of each parent to uphold the other parent as one the children should respect and love.

(4) Both parties shall provide each other with their addresses and telephone numbers of their residences and anytime they take a trip with the children out of the jurisdiction of Berks County in excess of three days.

(5) The parties shall not conduct arguments or heated conversation when they are together in the presence of their children.

(6) The parties shall, at all times, consider the children’s best interests, and act accordingly. It is in a child’s best interest to understand that he or she is trying to desperately cope with the fact of his or her parents’ separation, and needs help in loving both parents, rather than interference or censure.

(7) Neither party shall question the children as to the personal lives of the other parent except insofar as necessary to insure the personal safety of the children. By this we mean that the children will not be used as spies on the other party. It is harmful to a child to be put in the role of spy.

(8) The parties should remember that they cannot teach their children proper moral conduct by indulging in improper conduct themselves. Children are quick to recognize hypocrisy, and the parent who maintains a double standard will lose the respect of his or her child.

(9) Weekend and evening visitation shall be subject to:

(A) Arrangements will be worked out beforehand between the parties without forcing the children to make choices and run the risk of parental displeasure. However, the children shall be consulted as to their schedules when appropriate.

(B) Visitation rights shall be exercised at reasonable hours and under circumstances reasonably acceptable to the other party and to the need and desire of the minor children.

(C) If a party finds himself or herself unable to keep an appointment, he or she should give immediate notice to the other party, so as to avoid subjecting the children to unnecessary apprehension and failure of expectations.

(D) The party having custody of the children should prepare them both physically and mentally for the transfer of custody to the other party and have them available at the time and place mutually agreed upon.

(E) If either party or a child has plans which conflict with a scheduled visit and wish to change such visitation, the parties should make arrangements for an adjustment acceptable to the schedules of everyone involved. Predetermined schedules are not written in stone, and both parties should be flexible for the sake of the children.

(F) If a party shows up for a visit under the influence of alcohol or drugs, the visit may be considered forfeited on those grounds alone.

(10) If either party feels the other party has violated this order, they may petition the court as set forth in Pa.R.C.P. 1915.12.