author: LAVELLE, P.J.,

text:
    Jim Thorpe Area School District v. Kidder Township Zoning Hearing Board

      C.P. of Carbon County,
    no. 99-0041.

      David B. Consiglio, for appellant.

      Cynthia S. Ray, for appellee.

      Anthony J. Lucadamo, for intervenor.
    June 9, 1999
   LAVELLE, P.J.,

The principal issue presented in this zoning appeal is whether a political subdivision, through its zoning ordinance, may lawfully exclude public school buildings from being located in a particular district of the municipality. We hold that it cannot and, accordingly, we reverse the decision of the zoning hearing board which denied a zoning permit to School District. We also hold, as a matter of law, that Kidder Township’s Zoning Ordinance is constitutionally invalid in that it effectively excludes public schools from the township.

FINDINGS OF FACT

The Jim Thorpe Area School District acquired, by condemnation, fee simple title to a 50-acre tract of vacant land in Kidder Township, Carbon County, for the purpose of constructing a new primary school to accommodate children from kindergarten through eighth grade. The tract is located in an area zoned “Resort-Commercial (R-C).” School District then applied for a zoning permit. The zoning officer denied the application on the sole ground that a school was not a use which was allowed as a permitted use, special exception use or conditional use under article 4, section 404 of the Kidder Township Zoning Ordinance. School District then filed a timely appeal from the zoning officer’s decision to the Kidder Township Zoning Hearing Board. The Smith Family Limited Partnership, the owner of the adjoining tract, of which the proposed school site was formerly a part, intervened in opposition to School District’s application.

I. Testimony Before the Zoning Hearing Board

In its appeal to ZHB, School District attacked the validity of section 404 seeking to have this section of the ordinance declared unconstitutional on the ground that it effectively zones out schools from Kidder Township.

ZHB conducted an evidentiary hearing on September 28,1998, during which School District presented extensive testimony concerning its proposed project. The proposed school would house a maximum of 850 pupils in grades K through 8th in a two-story structure containing 8-9,000 square feet. (N.T. 23.) The facility was urgently, even critically, needed inasmuch as 350 students are currently being educated in temporary classrooms located in trailers behind the existing elementary school in Jim Thorpe. (N.T. 32.) Of the 50-acre site, 30 acres would be left in woods and approximately two acres would be occupied by buildings and other “impermeable” improvements, such as parking areas and outdoor recreational facilities. (N.T. 23.) School District conducted environmental studies which indicated that the project would have no adverse impact on the surrounding area. (N.T. 32-33.) The proposed site would cut transportation time for most students in half; for some students, who now spend an hour riding the bus, their trip to school would be reduced to 10 to 15 minutes. (N.T. 62.) School District’s architect testified that in designing the project, he took particular care to comply with the requirements of the township’s zoning ordinance, including redesigning the building to comply with the 40 foot height limitation. (N.T. 42.)

The testimony presented by School District, which included four witnesses and 32 exhibits, was substantially uncontradicted. The questioning by board members, on the other hand, appears from the record to be primarily hostile in nature, with most questions and comments suggesting that School District should look for another site, preferably outside of Kidder Township (see, e.g., N.T. 59-63, 68-72), or expand the existing elementary school in Jim Thorpe. (N.T. 74.) All parties agree that there are at present no operating public schools at all in Kidder Township. No evidence was presented by any party that the proposed school would adversely impact on the health, safety or general welfare of the surrounding community in any way; indeed, the unrebutted testimony of School District was that it would have a positive impact on the community.

II. Zoning Board’s Decision

In a decision dated December 17, 1998, ZHB unanimously affirmed the zoning officer’s refusal to issue a permit and denied the appeal. Its decision relied primarily on the finding that schools were not permitted in an R-C zone, either by right or by conditional or special exception use. ZHB rejected School District’s attack on the constitutional validity of section 404 on the ground that School District failed to meet its burden of proof. Finally, ZHB concluded that School District’s plans did not satisfy the provisions of the ordinance requiring a centralized sanitary sewerage disposal system. This timely appeal followed and Smith Family Limited Partnership intervened.

III. Scope of Review

Initially, we must note the scope of our review in zoning cases where, as here, we have not taken additional testimony is limited solely to the question of whether the zoning hearing board committed an abuse of discretion or an error of law. Bachman v. Zoning Hearing Board of Bern Township, 508 Pa. 180, 494 A.2d 1102 (1985).

IV. Issues Presented

The instant appeal presents two distinct, but related, issues:

(1) whether section 404 of the Kidder Township Zoning Ordinance is constitutionally invalid because it effectively precludes School District from locating a public school in the township, and

(2) whether section 702 of the Public School Code (24 P.S. §7-702) preempts the use regulations of local zoning ordinances.

V.The Validity Challenge

School District contends that section 404 of Kidder Township’s Zoning Ordinance is de facto exclusionary because it permits public schools in only a minute percentage of the total land area within the township. ZHB and Smith argue that the ordinance is not exclusionary because it permits schools in an R-3 zoning district. We agree with the position of School District.

Our resolution of the validity argument requires us to apply the “fair share” analysis stated by our Supreme Court in Township of Willistown v. Chesterdale Farms Inc., 462 Pa. 445, 341 A.2d 466 (1975). Under Willistown and its progeny, we must examine whether the township has provided a “fair share” of land for a particular use, in this case public school development. The “fair share” test requires “local political units to plan for and provide land-use regulations which meet the legitimate needs of all categories of people who may desire to live within its boundaries.” Surrick v. Zoning Hearing Board of Upper Providence Twp., 476 Pa. 182, 382 A.2d 105 (1977).

“The initial inquiry must focus upon whether the community in question is a logical area for development and population growth.... The community’s proximity to a large metropolis and the community’s and region’s projected population growth figures are factors which courts have considered in answering the inquiry. . . . [T]he present level of development within the particular community must be examined. . . . [The] primary concern ... is centered upon [the] ordinance’s exclusionary impact.” Id. at 192-93, 382 A.2d at 110.

In determining whether a particular community has met its “fair share” obligations, the court must consider a number of factors, including the percentage of land available under the zoning ordinance for the requested use, population growth and the amount of undeveloped land in the particular community. In the Surrick case, an apartment developer attacked the validity of a local zoning ordinance which permitted multi-family dwellings on only 43 acres, or approximately 1.14 percent of the total township acreage. Holding that the ordinance was exclusionary, the court noted:

“In analyzing the effect of a zoning ordinance, the extent of the exclusion, if any, must be considered. Is there total exclusion of multi-family dwellings ... or is the exclusion partial? If the zoning exclusion is partial, obviously the question of the ordinance’s validity is more difficult to answer. In resolving this issue, ... the percentage of community land available ... for multi-fam-ily dwellings becomes relevant. This percentage must be considered in light of current population growth pressure ... and in light of the total amount of undeveloped land in the community. Where the amount of land zoned ... for multi-family dwellings is disproportionately small in relation to these latter factors, the ordinance will be held to be exclusionary.” 476 Pa. at 194, 382 A.2d at 111.

Viewing the unrefuted School District evidence in the light of the “fair share” standard, we are struck by these salient and unassailable facts:

(1) Kidder Township is a natural area for population growth for the municipality and School District.

(2) There is an urgent need for a new elementary school in the Jim Thorpe Area School District to serve pupils living in Southern Kidder and Penn Forest Townships; especially the 250 students who are now being taught in trailers.

(3) The location of the proposed school will dramatically reduce the amount of time pupils spend commuting to school.

(4) There are no operating schools at all in Kidder Township.

(5) Kidder Township contains a total area of approximately 76 square miles.

(6) The only area in Kidder Township in which schools are a permitted use is the R-3 zoning district.

(7) The R-3 zoning district consists of only 1,515 acres, or approximately 2 percent of the total land area within the township, although there was no testimony as to how much of that acreage might be potentially available for school development purposes.

(8) The site selected for the proposed school is suitable and appropriate, and the project will have no adverse environmental impact, nor will it otherwise adversely affect public health, safety or welfare.

These facts and the “fair share” analysis in which the exclusionary impact of the proposed use is paramount, compels the conclusion that section 404 is invalid. Its impact is that Kidder Township has no schools and the inference is inescapable that the ordinance is designed to keep out schools.

ZHB and Smith’s argument that Kidder’s zoning ordinance is not exclusionary because schools can be built in R-3 misses the whole point of School District’s challenge. Section 702 of the school code, as we shall point out below, gives School District the sole authority to put the school where it currently plans. Neither ZHB nor Smith can curtail or impair School District’s 702 prerogative by telling it to locate its school somewhere else.

ZHB, in its decision denying School District’s permit, cited a lack of proof of the invalidity of the ordinance.

The burden of proof in a validity case, of course, rests with the party seeking to have the ordinance declared invalid. National Land and Investment Co. v. Easttown Township Board of Adjustment, 419 Pa. 504, 215 A.2d 597 (1965). There is also a strong presumption in favor of an ordinance’s validity. DeCaro v. Washington Township, 21 Pa. Commw. 252, 344 A.2d 725 (1975). However, where the zoning ordinance is exclusionary on its face, or where the applicant shows either that the ordinance is de facto exclusionary or fails to provide for its “fair share” of the use, the burden of proof shifts to the municipality. Cutler v. Newtown Township Zoning Hearing Board, 27 Pa. Commw. 430, 367 A.2d 772 (1976).

The practical and real effect of section 404 is the total exclusion of public schools from Kidder Township. Schools, in other words, are effectively “zoned out” of Kidder Township. Further, as we have demonstrated, Kidder Township has clearly not provided a “fair share” of its land for the development of public schools. Therefore, we are persuaded that School District presented sufficient evidence to shift the burden of proof. No rebuttal evidence has been produced by ZHB or Smith. We conclude that School District has proven its invalidity case.

VI. The Preemption Issue

School District’s second argument is that section 702 of the Public School Code preempts the use limitations of local zoning regulations, vesting in school directors the unfettered power to locate schools anywhere within a municipality.

What is presented here, of course, is a classic conflict between the competing interests of two political subdivisions of the Commonwealth: on the one hand, the right of a school district to determine the location of its facilities, and on the other, the interests of a township or other municipality in generally regulating land use and development within its borders. Section 702 of the school code gives school directors the exclusive power to determine “[t]he location and amount of any real estate required by any school district for school purposes....” Section 704 specifically gives school districts the right to locate schools outside of their municipal boundaries. When the exercise of these powers by school districts comes into conflict with local zoning regulations which purport to totally exclude schools from certain areas, our appellate courts have consistently held that the power of a school district to determine the location of its schools must prevail over the more general and parochial powers of zoning authorities. This is not to say that school districts enjoy a blanket immunity from the provisions of zoning ordinances. On the contrary, it is clear that such zoning regulations as off-street parking requirements, lot density and dimensional limitations are just as applicable to schools as they are to any other buildings regulated by a zoning ordinance. But what a municipality cannot do, through its zoning regulations, is exclude school buildings entirely from certain districts. This is exactly what Kidder Township is attempting to do in the case under review.

Our guiding light in these cases has always been, and remains, the Supreme Court’s decision in Radnor Township School Authority v. Pemberton, 434 Pa. 249, 252 A.2d 597 (1969) (commonly referred to as Pemberton Appeal). In that case, as in the instant appeal, a school authority acquired property in a zoning district where schools were not permitted under the ordinance. In affirming the reversal of the zoning board’s denial of a permit, the Supreme Court noted:

“[Section] 702 of the Public School Code clearly and unequivocally vests precise and specific power in the school district and directors thereof to locate, determine, acquire, and if necessary condemn, all real estate deemed necessary for schools. And the township’s zoning regulation clearly is determining the locations of schools. It thus cannot be squared with [section] 702.” Pemberton Appeal at 256, 252 A.2d at 600.

In reconciling the conflict between the provisions of the school code and the regulatory powers vested in the township by the First Class Township Code, the court applied section 63 of the Statutory Construction Act which provides that whenever a conflict arises between a general provision in a law and a special provision in the same or another law, the special provision shall prevail.

Pemberton Appeal, supra, makes it clear that where the unfettered right of a school district to determine the location of a school comes into conflict with the provision of a local zoning ordinance, the zoning provisions must yield to the school authority’s powers under section 702.

Faithful to the Supreme Court’s ruling in Pemberton Appeal case, in Sto-Rox School District v. Zoning Hearing Board of Kennedy Township, 674 A.2d 352 (Pa. Commw. 1996), the court of common pleas addressed a situation, mirroring the one at bar, in which a zoning hearing board refused to issue a zoning permit under the guise of a prohibition found in the local ordinance. The Commonwealth Court, in adopting the rationale of the court of common pleas, in toto, stated that “the specific power of the school board over schools must prevail over the more diffuse power of the municipality to regulate the construction and location of buildings in general.” Sto-Rox (adopting the decision of the court of common pleas, p. 7). (emphasis added) The court rejected the township’s asserted right to deny a school district a zoning permit on the basis that the zoning ordinance did not allow a school in a particular zoning district.

ZHB and Smith urge that the Commonwealth Court in its recent decision in Hazleton Area School District v. Zoning Hearing Board of Hazle Township, 720 A.2d 220 (Pa. Commw. 1998), is now departing from the principles enunciated in Pemberton Appeal. We do not agree with that analysis. Hazleton involved not an application to locate a school, but rather an application to expand an existing use of a school athletic field for non-school-related facilities. In affirming the denial of the application, the court properly held that the powers vested in school districts under the school code did not effect a total preemption of local zoning regulation. This decision is totally consistent with Pemberton Appeal, which expressly holds that a school district must generally comply with all other zoning regulations, such as off-street parking facilities, dimensional requirements, etc. See also, Sto-Rox School District v. Zoning Hearing Board of Kennedy Township, 674 A.2d 352 (Pa. Commw. 1996) and School District of Philadelphia v. Zoning Board of Adjustment, 417 Pa. 277, 207 A.2d 864 (1965).

ZHB and Smith’s reliance on Council Rock School District v. Wrightsville Township Zoning Hearing Board, 709 A.2d 453 (Pa. Commw. 1998) is also misplaced and inapposite. Council Rock involved an application for a special exception to build a school. The zoning board denied the application because the school district failed to supply any information to the board regarding its project with the exception of a basic plot plan. The Commonwealth Court affirmed, finding that the applicant made no effort whatsoever to comply with the requirements of the ordinance, relying, instead, on a bald declaration of its intention to build a school. We do not find Council Rock inconsistent with the Supreme Court’s decision in Pemberton Appeal, since the former case did not involve an attempt to “zone out” schools in the zoning district under consideration. That school districts, just like any other developer, must comply with all of the technical and administrative requirements of a zoning ordinance is undisputed.

As counsel for School District points out in his brief, “the efforts of the school district in this case to comply with the zoning ordinance are and were extensive. Unlike the Council Rock School District, the Jim Thorpe Area School District submitted 32 exhibits, four witnesses, three of whom were experts, and virtually begged the ZHB to grant the zoning permit and attach any reasonable conditions. The district implored the ZHB to be reasonable:

“I can’t stress to the board enough that the school district is desperate to move forward with this project because there are so many children in the portable classrooms, and if you find it necessary that the permit should have conditions such as the ones you’ve talked about, I would urge you to do so and put those on there and the district will comply because as I said we’re very, very, very pressed to try to move this project along.” (N.T., 9/ 28/98, p. 36.) (emphasis added)

In fact, the township’s zoning officer testified that she had no problem with the plans that were submitted and that no variances were required for the project, and were it not for the fact that schools were not permitted in an R-C zone, she would have approved the application. (N.T. 42-44.)

Finally, Smith suggests that the Supreme Court has impliedly overruled Pemberton Appeal in its more recent decision in Commonwealth, Department of General Services v. Ogontz Area Neighbors Association, 505 Pa. 614, 483 A.2d 448 (1984). We disagree. Ogontz involved an attempt by the Department of General Services, an agency of the Commonwealth of Pennsylvania, to locate a development center for mentally handicapped persons in a neighborhood where such a use was not permitted under the Philadelphia Zoning Code. In holding that the use provisions of the zoning ordinance were controlling, the majority rejected the state’s contention that the grant of eminent domain powers necessarily indicates a legislative intent to override local zoning regulations. Discussing Pemberton Appeal and the cases which followed it, the Supreme Court noted that:

“The common thread running through these cases is the assertion that ‘When there is an apparent conflict in the use of [land use] powers we must look to the intent of the legislature to determine which exercise of authority is to prevail.’ City of Pittsburgh, 468 Pa. at 182, 360 A.2d at 612. Since legislative intent is not always self-evident, this court adopted the balancing test... in which the nature and purpose of the legislative grant and the facts of the case are examined in an attempt to determine which agency the legislature intended to be preeminent....
“It now appears to us that although our past emphasis on discovering the legislative intent was correct, this court’s earlier view that eminent domain powers necessarily indicate a legislative intent that the agency may override local zoning regulations, should no longer control.” 505 Pa. at 625-26, 483 A.2d at 453-54.

In the case of school districts, however, we believe that the powers granted by the school code with respect to the location of school buildings would essentially be frustrated and rendered meaningless if such decisions were subject to the veto power of zoning regulations. Zoning authorities would be the ultimate arbiters of where schools were located, clearly a result not intended by the legislature in enacting section 702 of the school code. The court noted in Ogontz that the loss of a mental health center in one area might easily be compensated by the substitution of another location. The court, invoking the Statutory Construction Act, 1 Pa. C.S. § 1921(c)(6), found that the legislative mandates given to the Department of General Services to establish mental health service and that given to the City of Philadelphia to regulate land use could both be implemented by the simple expedient of the agency relocating its center to another district in which such facilities were permitted under the zoning code. But the same argument cannot be made in the case of public schools. Their location, in terms of proximity to students’ homes, availability of roads and other facilities, is critical to their function and best determined by the elected school directors, in accordance with the express powers vested in them by the legislature. The argument in favor of preemption in the case before us becomes even more compelling when the court is confronted with an ordinance which effectively “zones out” schools from the entire township.

CONCLUSION

For the foregoing reasons, we shall reverse the decision of the Kidder Township Zoning Hearing Board to the extent that it holds that a public school is not a permitted use in an R-C district under section 404 of the Kidder Township Zoning Ordinance, and we hereby enter the following order:

ORDER

And now June 9, 1999, it is hereby ordered and decreed as follows:

(1) The appeal of Jim Thorpe Area School District is sustained and the decision of the Zoning Hearing Board of Kidder Township is hereby reversed.

(2) The zoning hearing board is forthwith ordered to issue a zoning permit to the Jim Thorpe Area School District.

      . This section provides for various permitted, conditional and special exception uses in an R-C district, none of which includes a school. Among the principal permitted uses are single and multi-family homes, townhouses, commercial recreational facilities, retail stores and municipal, fire and ambulance buildings. The only area permitting schools in the township is in the R-3 district, where they are allowed by special exception.

      . We are constrained to observe that ZHB’s conclusion is completely inconsistent with its statement at the ZHB hearing when it confirmed that in the area of the sewage disposal system, “this board does not have authority in that jurisdiction.” (N.T. 53.)
      Therefore, we shall not discuss this factor in ZHB’s decision. It is irrelevant to the issue of whether a zoning permit should issue and further is within the exclusive jurisdiction of the Pennsylvania Department of Environmental Protection.

      . This is the second time this matter has been before the court. By order datecj July 9, 1998, Judge Webb remanded to ZHB because the public notice advertising the hearing failed to inform the public that the validity of the zoning ordinance was being challenged.

      . We note that the R-3 zone is not within School District’s territorial limits; however, under section 704 of the Public School Code (24 P.S. §7-704) a school district may exercise its eminent domain powers anywhere in the Commonwealth and is not confined to sites within its own boundaries.

      . Parenthetically, this argument lends support to School District’s contention, which is unproven on the record and cannot form the basis for our decision here, that the overarching basis for ZHB’s refusal to grant School District a permit is the NIMBY (Not In My Back Yard) Syndrome.


source: Caselaw Access Project

author: SOLOMON, J.,

license: Public Domain

text:
    Fayette County Housing Authority v. Housing and Redevelopment Insurance Exchange
    C.P. of Fayette County,
    no. 2440 of 1997, G.D.

      John M. Purcell, for plaintiff.

      John D. Scozio and Mark T Coulter, for defendants.
    April 7, 1999
   SOLOMON, J.,

Before the court are cross-motions for summary judgment filed on behalf of the plaintiff, Fayette County Housing Authority, and the co-defendant, the Housing and Redevelopment Insurance Exchange. Both parties seek a judicial determination of whether HARIE is obligated to defend and indemnify the FCHA in a lead-based paint contamination lawsuit initiated by the co-defendants, Katherine Umbel and her minor son, Corey Brown. HARIE contends that there is no issue of material fact and that as a matter of law it has no duty to defend or indemnify the FCHA. The FCHA contends that, as a matter of law, HARIE does have a duty to defend and indemnify the FCHA.

STATEMENT OF THE CASE

In 1995, Umbel and Brown resided in an apartment which was subsidized by a section 8 rental subsidy that was administered by the FCHA. The FCHA was insured through a commercial general liability policy issued by HARIE. Central to the dispute in this case is a pollution exclusion provision within the policy. This provision indicates that the policy does not cover injury resulting from

“[T]he actual, alleged or threatened discharge, disposal, seepage, migration, release or escape of pollutants .... Pollutants mean any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.”

HARIE takes the position that this provision releases it of the responsibility to defend and indemnify the FCHA in the underlying suit. According to HARIE, lead-based paint claims are precluded from coverage by the pollution exclusion. The FCHA believes that the language of the provision is ambiguous with respect to lead-based paint and therefore must be construed against the insurer and in its favor.

DISCUSSION

In deciding any motion for summary judgment, we must view the record in the light most favorable to the non-moving party, resolving all doubts against the moving party, and determine whether the moving party has clearly established that there exists no genuine issue of material fact and that he is entitled to judgment as a matter of law. Skipworth v. Lead Industries Association Inc., 547 Pa. 224, 230, 690 A.2d 169, 171 (1997). The non-moving party “must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Ertel v. Patriot-News Co., 544 Pa. 93, 101-102, 674 A.2d 1038, 1042 (1996). Moreover, given that an order favorable to the moving party will end an action, summary judgment is only appropriate in the clearest of cases. Skipworth, supra, 547 Pa. at 230, 690 A.2d at 171.

With respect to the interpretation of the instant pollution exclusion provision, we keep in mind that exclusionary language must be construed strictly against the insurer and in favor of a defense and potential indemnity for its insured. Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983). HARIE must establish that the exclusion is unambiguous in its application to the specific facts of this case in order to escape its obligation to defend and indemnify its insured. Id.

If exclusionary language is reasonably capable of more than one interpretation, is it considered ambiguous. D’Allessandro v. Durham Life Insurance Company, 503 Pa. 33, 37, 467 A.2d 1303, 1305 (1983). The language is “reasonably susceptible to more than one interpretation” where more precise language was available but not utilized. McMillan v. State Mutual Life Assurance Company, 922 F.2d 1073, 1076-77 (3d Cir. 1990) (“An insurer’s failure to utilize more distinct language which is available reinforces a conclusion of ambiguity under Pennsylvania law.”). A provision of a policy is ambiguous under Pennsylvania law if reasonable, intelligent people, viewing the contract as whole, could disagree as to its meaning and more precise language could have eliminated the ambiguity. Travelers Indemnity v. Fantozzi, 825 F. Supp. 80, 84 (E.D. Pa. 1993).

Instantly, we find that the exclusionary provision in question is ambiguous regarding coverage for lead-based paint injury. Reasonable minds surely could differ over whether lead-based paint is a pollutant under the language of HARIE’s pollution exclusion provision. While the dangers of lead and lead-based products may be well-known, we hardly think it unreasonable that someone reading the exclusion in the context of the entire policy would not believe that it applied to paint chips. This ambiguity could have been readily cured by language indicating that lead-based paint was in fact regarded as a pollutant, and it was HARIE that failed to utilize more distinct language.

Furthermore, as the defendant HARIE correctly notes, Pennsylvania appellate courts have not addressed the question of whether an absolute pollution exclusion provision applies to lead-based paint. The case law actually cited by the parties is conflicting, many of the cases are federal or from other states, and few of the cases even deal directly with lead-based paint injury claims. Although different interpretations of a pollution exclusion provision by various courts may not alone signal ambiguity within the provision, Lower Paxon Township v. United States Fidelity and Guaranty Co., 383 Pa. Super. 558, 573, 557 A.2d 393, 400 (1989), such diversity of views does strengthen this court’s conclusion that the issue is not well-settled under the law. Thus, we believe that granting summary judgment on behalf of HARTE is not appropriate, since the ambiguous provision triggers their duty to defend and indemnify and thereby denies them the right to judgment as a matter of law. This same duty to defend and indemnify consequently entitles the FCHA to summary judgment on its behalf as a matter of law.

Wherefore, we will enter the following order.

ORDER

And now, April 7, 1999, it is hereby ordered and decreed that the motion for summary judgment of HARIE is denied, and that the motion for summary judgment of FCHA is granted.


author: FEUD ALE, S.J.,

text:
    In re Brzostowski

      C.P. of Northumberland County,
    no. CV-99-576.

      Joey A. Storaska, for petitioner.

      John M. Gallagher, for respondent.
    July 1, 1999
   FEUD ALE, S.J.,

Before the court is a petition for change of name filed by the father to change the surname of a child from Mother’s to his birth name. Jacob Michael Brzostowski was bom on March 31,1997. His mother, Christie L. Brzostowski, and Father, Robert E. Belfanti III, were never married. An order of court was entered on August 3,1998, providing for shared legal and equal physical custody of the minor child. On April 28, 1999, Father filed his petition and reasons for change of name and Mother filed her answer and objections on May 27, 1999. A hearing was held on June 28, 1999.

“ ‘The court of common pleas of any county may by order change the name of any person resident in the county.’ 54 Pa.C.S. §702. The statutory scheme sets forth no criteria for the court to consider when exercising its discretion upon a petition for change of name. The only prohibition within the statute appears at section 705: ‘Any person violating the provisions of this chapter for purpose of avoiding payment of taxes or other debts commits a summary offense.’ ”

In a case of first impression In re Change of Name of Zachary Thomas Andrew Grimes to Zachary Thomas Andrew Grimes-Palaia, 530 Pa. 388, 609 A.2d 158 (1992) the Supreme Court noted the following: identity to avoid financial obligations. Beyond requiring compliance with the notice provisions, the statute provides no additional guidance for courts considering petitions for change of name. Absent any legislative criteria, courts reviewing petitions for change of name exercise their discretion ‘in such a way as to comport with good sense, common decency and fairness to all concerned and to the public.’ Petition of Falcucci [Name Case], 355 Pa. 588, 592, 50 A.2d 200, 202 (1947).” Grimes, supra at 392, 609 A.2d at 160.

“The focus of the statute and the procedures thereunder, indicate a liberal policy regarding change of name requests. The necessity for judicial involvement centers on governmental concerns that persons not alter their

The court specifically held the appropriate standard for determining whether to grant a petition to change the name of a minor child is the best interest of the child, and the petitioner seeking to change the name must bear the burden of establishing the aforesaid.

In the absence of statutory guidelines, the court opined as follows:

“Specific guidelines are difficult to establish, for the circumstances in each case will be unique, as each child has individual physical, intellectual, moral, social and spiritual needs. See generally, In re Davis, 502 Pa. 110, 465 A.2d 614 (1983). However, general considerations should include the natural bonds between parent and child, the social stigma or respect afforded a particular name within the community, and, where the child is of sufficient age, whether the child intellectually and rationally understands the significance of changing his or her name.
“Section 1.7 Registration of children bom in wedlock.
“(a) The designation of a child’s name, including surname, is the right of the child’s parents. Thus, a child’s surname as recorded on its birth certificate may be the surname of either or both of the child’s parents, a surname of the parents in hyphenated or other form, or a name which bears no relationship to the surname of either parent.” Grimes, supra at 394, 609 A.2d at 161.

In turning to the record testimony, the father and paternal grandparents testified in support of the petition and mother testified in opposition.

PATERNAL GRANDMOTHER

Cecelia Belfanti testified her son “Bobby” resides with her and her husband. She stated when “Bobby” has “Jake,” he is the primary caretaker, and he does “everything humanly possible as a father for his son.” When her son is working and he has custody, she cares for her grandson. She also agreed that the mother is a good and appropriate caretaker.

PATERNAL GRANDFATHER

Robert Belfanti II testified to the circumstances prior and subsequent to the birth of his grandson. He noted the mother resided at their home with his son during part of her pregnancy. After a period of time he noted the relationship between his son and Christie became strained and it was apparent they were not “moving towards marriage.” He believed the basis for the strain was Christie’s jealousy regarding her son’s closeness and time spent with his family. Initially, as to the future name of the child, he perceived the dispute between his son and Christie was whether the child’s name would be Robert Belfanti IV, and did not believe the last name of Belfanti was at issue. As the couple’s relationship deteriorated, he stated Christie said his son Eric would not be the child’s godfather, the baby would not be named Bob Belfanti IV, and she threatened to move to Maryland with an old boyfriend. Ultimately, he and Christie engaged in a shouting match and he asked her to leave the Belfanti home.

Subsequent to the separation, Mr. Belfanti stated he arranged three meetings between the prospective parents and maternal and paternal grandparents. These meetings were to discuss co-sponsoring a baby shower and attempts to ameliorate some of the strain, threats and anger between the prospective parents. At one of the meetings (which he claimed occurred a few weeks after Christie vacated the home), which Christie was present for all but approximately 10 minutes, he stated Christie’s mother, Robin, chastised Christie “not to use the baby” and that she (Robin) “would not allow any of the threats to be carried out.” He indicated Christie did not respond or react to her mother’s comments. Despite the attempts to utilize Christie’s parents as buffers, Mr. Belfanti claimed Christie engaged in a series of actions that were contrary to certain understandings between them. As to the baby shower, he stated rather than the guests being equally divided between the families, since the families were splitting the costs and responsibilities for the shower, “she cut our side to 50 and her side to 100.” As to distribution of the same gifts (i.e. five play-pens) he stated the Belfantis ranked fifth in the hierarchy. Also, it was his understanding the Belfantis would be advised when Christie went into labor but such did not occur, and in fact, when his son and wife went to the hospital the morning after the child was bom, they were denied access to the baby and “thrown out of the hospital.” He also noted the announcement in the paper made no reference to the father of the child, and no Belfanti was invited to the christening.

Finally, Mr. Belfanti spoke with pride about what he characterized as the “Belfanti tradition” of being a close and involved family (camping, scouting, shuffleboard), with no history of divorce, and that the name has a high standing in the community due, in part, to his profession as a member of the Pennsylvania House of Representatives for the last 20 years, and his many acts of public service that benefitted the community. He concluded with his concern that while a child bom out of wedlock has less stigma than in the past, he still believed such children may be referred to as “illegitimate or bastards.” As to his grandson specifically, he felt Jake would have fewer questions to answer about who his dad is, or to other kids Jake encounters when he is growing up.

FATHER

Robert E. Belfanti III explained that he has custody of his son on an equal basis with the mother and “it is great to see him that much” and that he is “able to raise Jake the way I’ve been raised.” He indicated discussions regarding the child’s name occurred not too long after the pregnancy. He claimed the last name of Brzostowski was never discussed but there was an issue as to using his first name and that “was kind of a sore point” with him. When asked why such discussions occurred at such a time, he responded it was “very important to me and she knew it.” In fact when he went to the hospital the day after the baby was born, and despite being denied access to the baby, he claimed he learned that a “birth certificate was not yet made out.” Subsequent to the child’s birth, he noted the efforts he, his family, and his lawyer made to persuade the mother to allow him to see his son, were to no avail for over four months. Finally, he filed a petition for special relief and the court granted his request to see Jacob on August 3, 1997. He noted that ultimately he was granted shared legal and equal physical custody and observed that the custody hearing officer recommended the child’s name be changed to Belfanti. Like his father, he was concerned about possible stigma and felt “most children bom out of wedlock have their father’s name,” and if they don’t they are known as “illegitimate or bastards.” He also said he is in a serious relationship and is considering marriage and having three other children who it was agreed would have the Belfanti name. He felt such could cause some confusion if Jacob did not have the same last name. That way he believed Jacob would not “be open to any ridicule in our community since children typically have their father’s last name whether in or out of wedlock.”

When asked on cross whether he considered Christie to be a friend, he preferred the appellation “acquaintance.” He admitted to drafting and delivering a three page letter to Christie about three weeks before the child was born, telling her that if she wished to communicate with him, the only way such was possible was in the presence of their parents, witnesses, or with the use of a tape recorder. When asked if he sent such a letter, he stated it was because Christie was spreading rumors that he gave her gonorrhea. As to the allegation he denied paternity of the child subsequent to his birth, he stated that he did so upon the advice of his lawyer. Mr. Belfanti, who is employed by the Pennsylvania Department of Environmental Protection, stated he pays regular child support and provides full insurance coverage for his son since December of 1998. He admitted the mother was not aware of such coverage until the day of the hearing.

When asked what Christie’s attitude was when he received equal physical custody, he stated “she seemed to think of Jacob as a piece of property,” and prior to the order, “she said I was a sperm donor like her father was.” In conclusion, Mr. Belfanti stated that regardless of what happens between the mother and him, he “intends and will be a father to this child.”

MOTHER

Christie L. Brzostowski, the mother of Jacob, is currently a student at Bloomsburg University and is also employed part-time. Like the father, she resides with her parents and they, especially her mother, assist her with child care. Mother was initially asked about the meetings arranged with the prospective parents and grandparents subsequent to their breakup. She stated as to the second meeting, we were both there but not for the entire meeting because “I have other things to do, my sister came home, errands.” She denied any discussion regarding the name of the child being held in her presence. She described the relationship between her and Robert as “not good, lousy together.” She stated he did not talk to her subsequent to the breakup, since February, and that Robert did not call her mom to see how she was doing. When questioned about living with the Belfantis, she stated she “stayed there but she did not live there— it wasn’t overnight.” She said she received the “letter” from Robert on March 9, 1997, the day of the baby shower, and that he called her a “f_ing bitch,” and that he did not appreciate the way she treated his mother. She stated “through my pregnancy we basically were broken up” and that they had “arguments, not discussions” regarding the name of the child. After the child was bom she stated she told the priest she had “not picked a last or first name yet” because she “wasn’t sure.” As to the Brzostowski name, she said she is proud of such and that there is nothing bad about the name. When asked how she would describe Jacob, she stated, “he is generally a good kid.” She stated her belief that the issue of a name change should be left up to Jacob when he is older. While she is not currently involved in any serious relationship, she claimed “at the present time I plan to keep the Brzostowski name, noting her college and professional aspirations. When asked if she had previously failed out of Bloomsburg University, she admitted such was due to her pregnancy. When questioned if she failed out of Clarion, she responded she transferred, and when asked what her GPA was at Clarion when she transferred, she responded she “did not recall, that was five years ago.”

As to the family name of Brzostowski, she admitted that her paternal grandfather and uncle do not generally use the name, and their name is listed in the phone book as Birch. She also acknowledges her original name was Timmons which was her mother’s maiden name. She acknowledged it was important to the father for the child to have the Belfanti name, but denied she ever agreed to such, and reiterated she was, up to the time of the birth, undecided about a last name, as she had told the priest. When asked if she agreed the Belfanti name was well respected, she, after a very long pause, stated “she did not know.” She admitted she did not let the father take the child for several months because of the letter he sent to her, and the fact he or his mother never called after the separation to check on her condition. She candidly admitted, even now, she did not want the father to be taking the baby. When asked about disputed money the father claims he gave her to buy bonds for the baby, and whether she instructed a phone number she reluctantly gave to the father, not be given to any third parties, such as the father’s parents, she stated “I don’t recall.”

DISCUSSION

More than 300 years ago, William Penn commented “some do as much begrudge others a good name, as they want one themselves: and perhaps that is the reason for it.” Mother’s begrudging reluctance to admit the Belfanti name is well respected was patent, and without any factual basis to the contrary. At the same time her comment that she initially never agreed to naming the child Belfanti was neither credible nor consistent with her admission that she told the priest she was undecided about a last name even after the baby was bom. Such a statement is more consistent with her using the issue of the last name as leverage, in anger, or pique, even up to the child’s birth. The testimony was also consistent with father’s clear and unequivocal desire for the child to have, at a minimum, his last name, and preferably have the Roman numeral IV after the surname. At the same time, the father and paternal grandfather’s concern that if the child did not have the Belfanti name, he would be known as illegitimate or a bastard was generally unpersuasive. In our years as a teacher, caseworker, lawyer and judge, we cannot recall hearing a child being bom out of wedlock referred to as illegitimate. As to the term bastard, we have heard it used in a pejorative sense, but not as a descriptive appellation for a child born out of wedlock. Admittedly, despite the change in our society and the infrequent use of such terms, should such be utilized the potential impact on the child could be devastating. However, despite the father and grandfather’s concern we do not consider such to be a substantive factor in this case. Similarly, the changes in our society support, and we agree, the best interest standard should not be used to give greater weight to the father’s last name. The best interest standard must be gender neutral.

Turning to the guidelines, the first area addressed by the Supreme Court was the bond between the parent and child. While not dispositive, it is relevant to note father and mother have equal periods of time with the child. In referring to their son, Father noted it was great to see Jacob that much and raise him the way he was raised; while Mother described her son as generally a good kid— a somewhat unusual way to refer to one’s 2 1/2-year-old son. Another criteria outlined by the court is the respect afforded a particular name in a community. Given the mobility of our society over the last generation, such may have diminishing impact. Presently, both parents were bom, raised and continue to live in Mt. Carmel. Neither name has any social stigma. Both names are good names. Neither the Belfanti nor the Brzostowski name will cause the child to suffer any embarrassment. However, the, record reflects carrying the Belfanti name is more important to the father and his family than it is to the mother and her family.

The request to wait until the child is older and let him choose, or use a hyphenated name (Belfanti-Brzostowski) while plausible on its face, is contrary to our responsibility under the law, or as noted in the Supreme Court in Grimes, may be merely an attempt to pacify both parties. When the child is how much older? Before or after he starts school? If, in the exercise of our good sense, we believe the length of time the child has used the surname is relevant, and in the case of an infant or preschool child, suggest the earlier the change, the better, and we believe 2 1/2 is obviously too young, our concern is the potential for the child to be submitted to subtle, or not so subtle, pressure by the parents or interested other, in the interim. Also, Jacob Michael Belfanti-Brzostowski has more letters (31) than the complete alphabet, may be problematic in filling out some forms, and “pacification of parents” is not the legal standard or main issue in this case.

Father’s reasons, although somewhat paternalistic and outdated, nonetheless reflect a sincere and consistent effort to have his son bear a name he and his family are proud of; a name, which does carry a good deal of community respect. Mother’s motive in maintaining the Brzostowski name is, in our view, a result of her ill will, and at times, hostility toward her child’s father, and perhaps her own birth father, both of whom she referred to as mere sperm donors, and one of which she alleged had gonorrhea. In our view, she was not credible when she denied not agreeing that initially, the child’s last name would be Belfanti. Her bias, even 2 1/2 years after the birth of her son (who, even today, she does not want the father to see) suggests the child’s best interests will be served, if his mother seeks counseling to deal with recent and perhaps past unresolved issues about the important role of a father, whether birth or step, and the absence of same. This court believes that Jacob Michael Belfanti has a good and loving mother, with a good last name, that now differs from his mother’s, not because of who the father or paternal grandfather are, but because as the law clearly states, when naming a child there is no rebuttable presumption in favor of a parent in possession, especially when that parent is “intoxicated with anger,” which was still evident in court, but we suspect still hidden from herself.

In consideration of the foregoing we enter the following:

ORDER

And now, July 1,1999, the petition for change of name of the minor child Jacob Michael Brzostowski to Jacob Michael Belfanti, is hereby granted. Counsel for the petitioner shall insure compliance with the Act as amended in June of 1998.

      “6. We note, that in Pennsylvania there exists no legal requirement that a child bear the surname of either parent. Title 28 of the Pennsylvania Code provides:

      . While not tesified to directly, it was apparent the mother had testing which revealed the sex of the child at some point during the pregnancy.

      . His father admitted he counseled and encouraged his son to take such precautions.

      . It was brought out that the mother was adopted. We are uncertain when she learned of same.


author: THOMSON, P.J.,

text:
    Bennison v. Nationwide Mutual Ins. Co.

      C.P. of Pike County,
    no. 1067-1998.

      Charles Kannebecker, for plaintiff.

      Lucille Marsh, for defendant.
    June 14, 1999
   THOMSON, P.J.,

This opinion addresses the motion for judgment on the pleadings by the defendant. The case revolves around an auto insurance contract, specifically, an uninsured motorist clause. Under the terms of the contract, plaintiffs are entitled to no compensation; however, they seek to have the uninsured motorist clause voided because it is invalid under Pennsylvania law, allowing them to obtain compensation. Defendant bases its motion on an attempt to enforce the terms of the contract as provided by the law under which it was written, New York. Having the benefit of an argument and the briefs by the parties, the court issues this opinion in support of its order denying defendant’s motion for judgment on the pleadings.

FACTS

On November 5,1995, plaintiff Deborah Bennison was a passenger in a vehicle owned by Bruce Graves of Marlboro, New York. While on a Pennsylvania roadway, Graves’ car collided with a third party’s car (also referred to herein as the tort-feasor). In an effort to obtain compensation for the damages suffered, plaintiffs have sought contribution from the uninsured motorist coverage for which they contracted with defendant. At the time of the contract at issue, the plaintiffs were domiciled in New York. The defendant issued plaintiffs’ insurance policy out of New York. The plaintiffs registered their car in New York. In addition, the declaration sheet attached to the contract provided a New York address. By all appearances, the insurance policy appears to be in accordance with New York law.

The contract provides in relevant part that the company will provide the plaintiffs with uninsured motorist coverage if the tort-feasor’s vehicle is uninsured. The contract defines an uninsured motor vehicle as a “motor vehicle that, through its ownership, maintenance or use, results in bodily injury to an insured, and for which .. . [tjhere is bodily injury liability insurance coverage . . . at the time of the accident, but (i) the amount of such insurance coverage ... is less than the third party bodily injury liability limit of this policy....” See defendant’s answer, exhibit A.

The defendant’s motion for judgment on the pleadings arises from three basic admissions in the plaintiffs’ reply. The first admission is that the negligent party’s vehicle was insured by State Farm Insurance Company with liability limits of $100,000 per accident, $300,000 per occurrence. (See plaintiffs’ reply, paragraph 22.) In addition, plaintiffs have admitted that their own liability limits under the Nationwide policy are $100,000 per accident, $300,000 per occurrence. (See plaintiffs’ reply, paragraph 21.) Plaintiff’s also have admitted that they have cumulatively received $105,000 from the State Farm Insurance Company for the injuries sustained. (See plaintiffs reply, paragraph 25.) Defendant argues these admissions, when considered with terms of the contract, require that plaintiffs cannot receive uninsured motorist benefits because their bodily injury liability limit is the same as or greater than the limits available to the negligent party. Furthermore, defendant argues that New York law applies because the parties lived in New York when they entered into the contract, and they listed a New York State address on the declaration sheet incident to the contract.

DISCUSSION

Although plaintiffs raised many issues against defendant’s motion, the case appears to center on the legal issue of whether Pennsylvania or New York law applies to this contract. If New York law applies, the contract remains in effect denying the plaintiffs further coverage, however, if Pennsylvania law applies to certain terms of the contract, the subject provision of the contract would be invalidated. In contradiction to the facts noted above that indicate New York law would apply, plaintiffs cite two basic arguments supporting the position that Pennsylvania law should apply. Plaintiffs’ first argument is that defendant is estopped from arguing that New York law applies because of an admission in a previous pleading. Second, plaintiffs argue that Pennsylvania law should apply because choice of law principles require it, arguing Pennsylvania has more significant contacts with the parties and a greater interest as well. We will address each of these arguments in order and also address plaintiffs’ other various arguments.

Before addressing those arguments, we note the various standards applicable to motions for judgments on the pleadings. A judgment on the pleadings may be entered where there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1034. A motion for judgment on the pleadings is similar to a demurrer in that a court must confine its consideration to the pleadings and relevant documents. E.g., Sejpal v. Corson, Mitchell, Tomhave & McKinley M.D.s Inc., 445 Pa. Super. 427, 665 A.2d 1198 (1995). A court cannot grant a motion for judgment on the pleadings unless there are no material facts at issue and the law is clear that trial would be a fruitless exercise. Welsh v. City of Philadelphia, 156 Pa. Commw. 299, 627 A.2d 248 (1993). With these standards in mind, we move on to address each of the arguments against defendant’s motion.

H — I

Plaintiffs’ first argument against a judgment on the pleadings is that defendant has admitted in a previous case that Pennsylvania law applies and is bound by that admission for the purpose of this case. Because Pennsylvania law applies, the uninsured motorist provisions of the contract should be invalidated, and, accordingly, the court should not grant judgment to defendant under the terms of the subject contract. In an earlier action, involving this accident between these parties, the plaintiffs in their complaint averred:

“(4) That the policy of insurance issued by the defendant to the plaintiffs was to provide medical coverage to the plaintiff in the event that the plaintiff suffered injury as a result of an auto accident.”

The defendant in its answer, responded as follows:

“(4) It is admitted only that the plaintiff had a policy of auto insurance policy [sic] issued by defendant which provided for certain first party benefits based upon the terms and provisions of the insurance contract, the Pennsylvania MVFRL and the applicable statutes and regulations of the Commonwealth of PA.”

Defendant not only made this averment in its answer but also made the averment in its new matter, alleging Deborah Benni son’s original cause of action was barred, reduced and/or limited by Pennsylvania law. Because defendant relied on Pennsylvania law previously, plaintiffs claim that the previous averments estop defendant from arguing that New York law governs the plaintiffs’ current claim. In support of this position, plaintiffs cite Gross v. City of Pittsburgh, 686 A.2d 864 (Pa. Commw. 1996). “[T]he purpose of. . . judicial estoppel is to uphold the integrity of the courts by preventing parties from abusing the judicial process by changing positions as the moment requires.” Id. at 867. “[A]s a general proposition, a party to an action is estopped from assuming a position inconsistent with his assertion in a previous action, if his contention was successfully maintained.” Associated Hospital Service of Philadelphia v. Pustilnik, 497 Pa. 221, 227, 439 A.2d 1149, 1151 (1981), quoting Giesey v. Cogan, 118 Pa. Super. 464, 466, 179 A. 865, 866 (1935). Settling a case does not constitute successfully litigating a claim. 497 Pa. at 227, 439 A.2d at 1151. Furthermore, general averments in pleadings in an undetermined prior case do not operate in a subsequent case as an estoppel by record against a party making them. Associates Discount Corp. v. Kelly, 169 Pa. Super. 74, 82 A.2d 689 (1951).

In the instant case, defendant’s averments as to the legal conclusion of which state’s law applies are in complete contradiction to its averments in the previous case involving these parties. However, plaintiffs presented the court with no reason why the court should believe defendant’s averments in the last case benefitted defendant beyond what New York law would have provided. There is no record of any kind that indicates that defendant’s previous averments in its answer and new matter benefitted it. Whether or not defendant actually benefitted from its legal argument in the previous case is unknown. Most importantly, the only recorded disposition of the case is that it was settled. The settlement of the case and unknown determining factors of its outcome prevent this court from making any finding that the matter was previously successfully litigated by the defendant, for inherent in the doctrine of judicial estoppel is previous successful use of a position. Thus, we find plaintiffs’ use of the doctrine of judicial estoppel to be without merit because (1) the parties settled the previous claim and (2) the lack of any record of the success of plaintiffs’ previous position.

II.

Defendant’s second argument is that through choice of law principles this court should apply Pennsylvania law. “The determination of the law governing the validity of contracts and the rights created thereunder has been recognized as one of the most difficult areas of conflict of laws.” Robert A. Brazener, Automobile Liability Policy: Choice of Law as to Validity of “Other Insurance ’’Clause of Uninsured Motorist Coverage, 83 A.L.R. 3d 321. The general rule is that the interpretation of insurance contracts is governed by the laws of the state where the contract was made. E.g., Jamison v. Miracle Mile Rambler Inc., 536 F.2d 560, 563 n.1 (3d Cir. 1976). The place a contract is made is the place that a contract was issued and delivered. E.g., Graves v. Republic Insurance Co., 516 F. Supp. 424, 426 (E.D. Pa. 1981). In absence of a determination as to where a contract was delivered, Pennsylvania courts presume the insured’s residence as being the place of delivery regarding a determination of which state’s law governs. Travelers Indemnity Co. v. Fantozzi, 825 F. Supp. 80, 84 (E.D. Pa. 1993). The location of the tort is not relevant to a choice-of-law dispute over an insurance contract. Assicuraioni Generali v. Clover, 18 F. Supp.2d 550, 555 (W.D. Pa. 1998).

Plaintiffs ask this court to forsake the traditional rales governing the interpretation of contracts. Plaintiffs’ request to ignore these general principles has received some support in recent decades. 83 A.L.R. 3d 321, 323. Courts that have forsaken traditional contractual choice of law analysis have done so with an eye toward public policy. Id. The public policy motivating these courts has been the attempt to provide the insured with as much compensation as possible. In invalidating uninsured motorist provisions in contracts where a choice of law issue existed, courts have applied the law of the state with the more generous coverage requirements for the insured.

In attempting to determine Pennsylvania’s preferences regarding choice of law analysis for uninsured motorist contracts, defendant cites the case of Bamber v. Lumbermens Mutual Casualty Company, 451 Pa. Super. 548, 680 A.2d 901 (1996). Defendant cites the case as holding that New York law should control in the instant case. In Bamber, the plaintiff suffered injuries after being in an automobile accident that allegedly occurred during the scope of his employment. Id. at 550, 680 A.2d at 902. After obtaining the liability limits of the negligent party’s policy limit and the limit of his own underinsured motorist benefits, he sought underinsured motorist benefits from his employer’s auto insurance policy. Id. The plaintiff’s claim in Bamber was premised on his argument that underinsured motorist coverage had to be provided because no waiver was executed regarding such coverage as required under 75 Pa.C.S. §1731. Id.

In analyzing the viability of the plaintiffs’ claim, and after determining the employer’s insurance contract did cover the plaintiff, the Superior Court focused on the applicability of 75 Pa.C.S. §1731. The court considered the facts that the insurance policy was issued and delivered in Washington, D.C. for primary coverage of vehicles in Washington D.C., Illinois, and California, but the vehicle in question was registered in Pennsylvania. Id. at 554, 580 A.2d at 904. The Superior Court focused on where the insurance contract was delivered or issued, as pursuant to the language of section 1731. Id. The court found that the registration of the car in Pennsylvania did not overcome the fact that the contract was executed in another state and the primary purpose of the policy was the coverage of vehicles out of state for the purposes of determining whether sectionl731 applied. Id. Thus, the Superior Court found section 1731 inapplicable.

Defendant distinguishes Bamber by arguing that the plaintiff in that case did not actually possess any un-derinsured motorist coverage through the employer’s policy; thus, the Superior Court’s ruling was on the applicability of section 1731 as to requiring an offering of such coverage not whether Pennsylvania law would apply to the determination of coverage that actually existed. Because a contract exists in this case that provides uninsured motorist coverage, plaintiffs argue that the facts relating to the contract should control any determinations regarding a choice of law. We agree with defendant’s distinction of Bamber; however, we find the logic of the case to be of persuasive authority for the proposition that Pennsylvania law is not applicable to the contract in this case. As we find the case to be only of persuasive authority, we will endeavor on with a choice of law analysis between New York and Pennsylvania, for the most part without the help of Bamber.

When a possible choice of law issue confronts a court, the first step is to determine if a true conflict exists between the competing states. Plaintiffs argue that there exists no true conflict between Pennsylvania and New York regarding the limits set forth in an uninsured or underinsured motorist insurance contract. Plaintiffs’ premise is that the law in New York sets forth a floor for uninsured/underinsured motorist coverage and, in the name of applying the law of the forum state (Pennsylvania), the invalidation of a contract clause that sets the policy limit at that floor is permissible for the purpose of allowing the motorist greater coverage. Implicit in plaintiffs’ argument is that there exists no harm against any state’s interest in providing coverage beyond that for which the contract specified. In support of this contention, plaintiffs cite a case following such reasoning in regard to the application of first party benefits. Smith v. Firemens Insurance Company of Newark, 404 Pa. Super. 93, 590 A.2d 24 (1991).

In the case cited by plaintiffs, the Superior Court declined to use the usual choice of law analysis, finding there to be no true conflict of laws between the laws of New Jersey and Pennsylvania. Id. The injured motorist in the case attempted to have the laws of New Jersey invalidate the first party benefits clause in the motorist’s insurance contract that was written in accordance with Pennsylvania law. Id. Under the contract, the motorist was limited to $10,000 in first party benefits. Id. The motorist attempted to invalidate his contract regarding first party benefits in an attempt to seek coverage beyond the first party benefits floor set forth by Pennsylvania. In attempting to invalidate the provision, the injured motorist sought the application of New Jersey law to the New Jersey based insurer. The Superior Court found that the policy underlying setting first party benefits at $10,000 was to insure the injured motorist receive at least that amount. “Applying the New Jersey provisions in no way defeats Pennsylvania’s interest reflected in section 1711, because with the application of the New Jersey statute, the insured will receive more than the $10,000 minimum coverage; thus, application of the New Jersey statute in this case furthers Pennsylvania’s interest in assuring that its citizens receive a certain minimal level of coverage.” Id. at 98, 590 A.2d at 27.

We find the reasoning of Smith to be inapplicable in that, in large part the Superior Court, in making the decision, was influenced by a specific New Jersey statute that demanded the clause of the contract be invalidated. The New Jersey statute in that case required insurers in New Jersey who sold policies to motorists in any other state to provide first party benefits beyond the Pennsylvania minimum for such benefits. Id. at 97, 590 A.2d at 26; N.J. Stat. Ann. §17:28-1.4 (West 1988). Thus, a specific law applicable to New Jersey insurers required that the New Jersey insurer in Smith provide the benefits the insured requested. Through the principle of comity, the Superior Court applied the law of New Jersey binding the New Jersey insurer. Id. at 99, 590 A.2d at 27. The court reasoned that a law directly on point from the foreign state required that the first party benefits clause be provided in a certain manner beyond the floor set forth by Pennsylvania and the contract failed to abide by that law. Id. Between the states involved in the case, there was no harm in invalidating a clause of a contract that was illegally written by one of the parties under the law applicable to that party. Thus, the only harm that could occur to either of the state’s interests would happen only by ignoring New Jersey’s law governing its insurers.

In the instant case, there exists no law invalidating the clause at issue in this case and an invalidation of a contract validly written under a state’s law, governing the contract, is against the interest of that state’s law. The contract between two New York parties executed in New York was valid in New York and, therefore, valid in Pennsylvania because Pennsylvania’s uninsured and under-insured motorist provisions only apply to cases involving contracts delivered or issued for delivery with respect to vehicles registered or principally garaged in the state. 75 Pa.C.S. §1731. Because Pennsylvania law does not in any way directly invalidate the clause of the contract, a conflict exists in an attempt to apply Pennsylvania law to overturn a valid contract written under the laws of New York. New York has an interest in seeing that contracts which do not violate, directly, the law of any other state be enforced. With no basis existing for finding the contract in the instant case to be invalid, the court must examine the contract under the laws to which it applied; and, therefore, any attempt to apply the law of Pennsylvania to the contract creates a conflict of the laws between the two states in that to apply Pennsylvania law one must ignore a valid contract written under New York law. In that we find Smith to be inapplicable and based upon our own reasoning, we hold that a conflict exists between Pennsylvania and New York’s laws in this case.

Because a conflict exists between the the two states, we must focus on a conflict of law analysis. “Pennsylvania’s choice of law approach combines both the Restatement (Second) of Conflicts of Law (contacts establishing significant relationships) and ‘interest analysis’ (qualitative appraisal of the relevant states’ policies with respect to the controversy).” Home Insurance Co. v. McGovern, 837 F. Supp. 661, 664 (E.D. Pa. 1993) citing Blakesley v. Wolford, 789 F.2d 236, 238-39 (3d Cir. 1986).

Pennsylvania’s interests relate to that fact the parties now live in Pennsylvania, while New York’s interest pertains to the enforcement of a valid contract in that state. In consideration of these basic interests, all of the relevant contacts for a contract action favor the application of New York law. Plaintiffs were domiciled in New York at the time of the contract, the contract was executed and delivered in New York, a New York address was placed on the declaration sheet, and the parties were executing a contract that was expressly designed for New York domiciliarles (the contract being labeled accordingly). Plaintiffs’ argument that Pennsylvania law should apply is based on the intentions of the parties to move to Pennsylvania a month before the accident occurred. However, in analyzing the contacts of the case, especially considering this is a contract action, the contacts with Pennsylvania pale in comparison to those of New York. In comparison to the facts surrounding the contract, which all relate to New York, plaintiffs only argue that they had an intention to have a contact with Pennsylvania, in that they were planning on moving to the Commonwealth at some point after the accident.

Although it is true that where a contract is performed is not controlling to a choice of law decision if the contract is intended to be executed in another place, in this case, there is no material issue of fact questioning the parties had the intention, at the time of the contract, that plaintiffs would be domiciled in New York. It was only a month before the accident that the parties began to believe they would live in Pennsylvania, long after the contract had been executed, thus, the connection with Pennsylvania regarding Pennsylvania law is weak. With such limited contacts to the state of Pennsylvania, Pennsylvania’s interests in the matter are inconsequential. Therefore, the law of New York is applicable to the contract, requiring that the court find the contract to be valid.

III

Plaintiffs also make several additional arguments as to why the defendant’s motion should be denied. The first argument is that “gap” coverage is contrary to public policy and against Pennsylvania law. In support of this theory, plaintiffs cite Allwein v. Donegal Mutual Insurance Company, 448 Pa. Super. 364, 671 A.2d 744 (1996). The case examined an insurance contract that was written under the sovereignty of Pennsylvania law and used “gap” coverage. In that the case was applying Pennsylvania law to “gap” coverage, we find the case inapplicable to our analysis of New York law in the instant case. Furthermore, any hypothesis by plaintiffs that the case stands for the proposition that any “gap” coverage plan validly entered into in another state is invalid in Pennsylvania is unsupported. We do not find sufficient appellate authority or sufficient unfairness in New York law to invalidate a contract that was legally binding where it was created.

The plaintiffs’ next argument is that the language of the contract is invalid because it is ambiguous. Plaintiffs’ argument revolves around portions of the contract that use the word “excess.” In reading the contract in full, we find that there exists no other possible reasonable interpretation of the contract than the one proffered by defendant. The use of the word “excess,” which has a separate meaning as an industry term, does not alone invalidate any portion of the contract because each portion when read in full is completely explained and cannot be reasonably interpreted contrary to its plain meaning of the language it uses.

Plaintiffs also argue that an issue exists regarding the reasonable expectations of the insured regarding the insurance coverage provided by the contract. As we have previously noted, we find the contract’s terms cannot reasonably be interpreted in any other way; and, therefore, we find plaintiffs’ argument to be without merit.

Finally, plaintiffs contend that the pleadings do not contain sufficient information as to allow a judgment on the pleadings. As plaintiffs note in their own brief, “[o]n a motion for judgment on the pleadings, the trial court must confine its consideration to pleadings and relevant documents and accept as true all well-pleaded statements of fact, admissions, and any documents properly attached to pleading[s] presented by the party against whom a motion is filed.” Plaintiffs’ brief at 24-25 citing McAllister v. Millersville Mutual Insurance Company, 433 Pa. Super. 330, 334, 640 A.2d 1283, 1285 (1994). Plaintiffs cite what they believe are two critical matters not of record and the court should require before granting the motion. The first matter involves whether there exists sufficient evidence in the record that the tort-feasor in the case was uninsured under the plaintiffs’ contract. However, after examining the pleadings, we find there exists no genuine issues of material fact in regard to whether the plaintiffs were uninsured under section 1(c)(3), parts (i) of the SUM endorsement. Plaintiffs also argue that nowhere in the pleadings does sufficient evidence exist for defendant’s assertion in their motion that the car at issue was garaged in New York. While we agree with plaintiffs that the term garage does not appear in the pleadings, the declaration sheet of the contract at issue does list a New York address. Plaintiffs’ argument relates back to the choice of law analysis we noted earlier. In previously analyzing the many facts demanding that New York law be applied, to which plaintiffs admitted or are part of the record, we found no genuine issues of material fact existed and the failure of the use of the word garage in the pleadings does not undercut that conclusion.

CONCLUSION

This court will not accept plaintiffs’ attempt to ignore a validly written contract. Although other state courts have been willing to ignore the uninsured motorist provisions of a validly written contract, we do not believe Pennsylvania should do so. Validly written contracts should not be invalidated without a proper foundation in law for so doing. In that the terms of the subject contract are validly written and enforceable under the law applicable to it, which is New York, the plaintiffs’ claim for uninsured motorist benefits beyond the policy must be dismissed. Therefore, for the aforementioned reasons we issue the following order:

ORDER

And now, June 14, 1999, upon consideration of the defendant’s motion for judgment on the pleadings, the briefs thereto, and the argument thereon, the court hereby grants the motion. Accordingly, judgment is granted against the plaintiffs.

      . We note that defendant had different counsel for the first case.

      . We also note that some Pennsylvania courts have interpreted the doctrine of judicial estoppel to apply only to factual averments. Prince George Center Inc. v. U.S. Gypsum Co., 33 Phila. 151 (1997) citing
        Ryan Operations GP. v. Santiam-Midwest Lumber Co., 81 F.3d 355 (3d Cir. 1996) (judicial estoppel being considered a substantive matter). This conclusion appears to arise from a holding that bad faith is required with judicial estoppel. Id. In that bad faith is required, a party cannot act in bad faith in taking a position on a legal argument in that a fraud cannot be committed on a court with a legal argument as it can with a factual one. Id. Although such an argument would also require a finding against the plaintiffs in this case, we did not rely on such reasoning for our decision.

      . The New York contract does not violate directly Pennsylvania law because Pennsylvania law does not in any way apply to the parties under the facts of the execution of the contract, unlike the New Jersey statute in Smith that directly applied to the insurer, even though it was not necessarily determinative of Pennsylvania’s decision on the choice of law in that case.

      . Defendant also argues that even if Pennsylvania law was applied, the case should be dismissed because the plaintiffs have failed to seek compensation from the policy covering the motor vehicle occupied by Deborah Bennison at the time of the accident. 75 Pa. C.S. §1733. We agree with defendant’s argument, and we note that plaintiffs in their brief, and at argument, failed to address this issue.

      . Plaintiff uses several cases to argue the proposition that New York case law supports applying a foreign state’s law in factual circumstances such as the ones presented in this case. Allcity Insurance Co. v. Williams, 506 N.Y.S.2d 974 (N.Y.App. 1986) and Country-Wide Insurance Co, v. Rodriquez, 437 N.Y.S.2d 674 (N.Y.App. 1981) (in both cases a specific New York law required foreign state law to apply for purposes of applying liability insurance); Berman v. Hertz Corp., 511 N.Y.S.2d 938 (N.Y.App. 1987) (accident and insurance contract entered into in foreign state); Smith v. Nationwide Insurance Co., 546 N.Y.S.2d 522 (N.Y.Sup.Ct. 1989) (New York trial court deliberately ignored the language of New York law noted in Allcity and CountryWide for purpose of allowing county resident to collect more compensation); and Allstate Insurance Co. v. Hartford & Indemnity Co., 455 N.Y.S.2d 385 (N.Y.App.Div. 1982) (applied New York statute that required New York law to apply for insurers authorized to conduct business in state).

      . There was one portion of the contract not using the word “excess” that plaintiffs also contended was vague and confusing. In their brief, plaintiffs quote half a sentence which explains that the insurer will pay “all sums” that plaintiffs would be entitled to as damages. We agree with plaintiffs that when you only quote half of the sentence the phrase “all sums” can be confusing, but when you read the entire sentence (as it is in the contract) there can be no confusion that the phrase “all sums” is limited in various ways.

      . See 83 A.L.R.3d 321.

      . Although rendered moot by this decision, we find that the matters requested for admission to have been conclusions of law; and, thus, the court would have sustained defendant’s objections to plaintiffs’ request for admissions.