author: GOLDBERG, J,

text:
    Sexton v. Haug

      C.P. of Bucks County,
    no. AO6-03-61759-C-28.

      Jeffrey Williams, for plaintiff.

      Patricia Cooley, for defendant.
    April 1, 2005
   GOLDBERG, J,

— Renee Sexton (Mother) has appealed this court’s child custody order of December 8,2004, which provided Mother and Robert Haug (Father) with joint legal custody and equal physical custody of the parties’ four children. We offer this opinion in support of our decision in accordance with Pa.R.A.P. 1925.

The history of the custody aspects of this domestic action are as follows: Mother and Father were married on November 30, 1991, and separated August 15, 2002. The marriage produced four children: Gabriel Haug (d.o.b. 12/16/93), Arielle Haug (d.o.b. 5/6/96), Luke Haug (d.o.b. 2/1/98), and Jeremy Haug (d.o.b. 5/12/00). By all accounts, the four children are thriving and well adjusted. Each child also has a loving and bonded relationship with both parents, despite the contentious nature of the relationship between Mother and Father and these proceedings.

While the parties were together as husband and wife, they lived in Jameson, Pennsylvania in a large single family home. Both Mother and Father were employed as chiropractors in an office that Mother started and Father later joined. In contemplation of children, Mother and Father structured their office hours to work on alternate days, so that, when one was at work, the other was home with the children. (N.T., 8/12/04, p. 37.) As a result, both parents spend considerable time with the children, changing their diapers, feeding and clothing them, and generally tending to their needs in an equal manner. Of the two parents, Father did the majority of the housework, including cooking, cleaning, yard work, and at least some of the laundry. (N.T., 8/12/04, pp. 46-47, 53.) Mother never disputed Father’s substantial involvement with his children.

During the marriage, the parties maintained close relationships with both Mother’s and Father’s sides of the family. Mother’s parents were in telephone contact with them on a daily basis and would see them several times per week. (N.T., 10/1/04, p. 67.) They also traveled and vacationed together. (N.T., 10/1/04, p. 68.) Father’s brother and his family lived next door to the marital home. (N.T., 12/3/04, p. 243.) As Father and his brother each have children around the same ages, the two families would also see each other on an almost daily basis. (N.T., 12/3/04, pp. 243-44.)

On October 30, 1996, Mother was involved in a serious car accident that caused her physical injuries, including injuries to the brain. (N.T., 7/7/04, p. 55.) As a result of that accident, Mother suffered cognitive problems and anxiety attacks, and was unable to work for several months after the accident. (N.T., 7/7/04, pp. 46, 58.) After the accident, Father increased his role in taking care of the children. (N.T., 10/1/04, p. 70.) To make up for Mother’s absence at the chiropractic office, Father also increased his work hours from approximately 10 to 15 hours per week to 20 to 25 hours per week. (N.T., 8/12/ 04, pp. 40-41.) While Father was working and Mother recovering from her injuries, other family members assisted in taking care of the children. (N.T., 8/12/04, pp. 42-43; 12/3/04, p. 218.)

In May 1997, Mother returned to work Wednesday afternoons for three hours per week. (N.T., 7/7/04, p. 59.) During this time Mother and Father both continued to remain active in raising the children. Father continued to do the majority of the housework and tasks associated with raising four young children. Father routinely involved the children in the household activities. For example, he would have the children assist him in cooking by having them mix pancake batter, or other similar duties. Arielle in particular would later develop a love for cooking. (N.T., 8/12/04, p. 55.) By way of further examples, Father would have one of the boys sit on his lap while cutting the lawn with his riding mower (N.T., 8/ 12/04, p. 53), and the children would mimic Father with a toy vacuum when Father was vacuuming the floors. (N.T., 8/12/04, p. 55.)

In 2001, Mother told Father she wanted a divorce. (N.T., 8/12/04, p. 12.) After failed attempts at marriage counseling, the parties worked with the counselor to develop a separation plan. As part of that plan, the parties agreed that the separation would be amicable, and that they would first set up Mother and the children in a new home and then set up Father in a new home. (N.T., 10/1/ 04, pp. 210-13.) Father always desired equal custody of the children and believed that that would happen after he and Mother were settled in their new homes. (N.T., 10/1/04, pp. 228-29.)

On August 15, 2002, Mother and the children moved out of the marital residence to a new home that Mother purchased in Newtown, Pennsylvania. (N.T, 7/7/04, p. 12; N.T., 10/1/04, p. 210.) This move was made in accordance with the parties’ plan and with Father’s cooperation and assistance, both financially and physically. (N.T., 8/12/04, p. 18.)

After separation, Father continued to see the children on a regular basis. By informal agreement, from August 2002 to October 2002, Father saw the children almost daily at Mother’s home and had them in his custody every Saturday night and while Mother was at work. (N.T., 8/12/04, pp. 74-76; N.T., 12/3/04, p. 37.)

By the fall and winter of 2002, the parties’ efforts at an amicable separation and divorce began to break down. In November or December 2002, Mother began to date Wayne Hirschbuhl. (N.T., 8/12/04, p. 30.) Mr. Hirsch-buhl is approximately 20 years older than Mother and owns a pool installation business. He lives in a sizable home in Ivyland, Pennsylvania that he refers to as a “gentleman’s farm.” (N.T., 10/1/04, p. 4.)

At approximately the time Mother began dating Mr. Hirschbuhl, Father stopped visiting the children at Mother’s Newtown hojne as often. Father testified that he did so because he did not want to interfere in Mother’s relationship with Mr. Hirschbuhl. (N.T., 12/3/04, pp. 37-38.) He did, however, continue to wish for an equal custody arrangement with Mother, and continued to have the children on Saturday nights and while Mother was at work. (N.T., 10/1/04, pp. 228-29.)

Mother’s relationship with Mr. Hirschbuhl also strained her relationship with her parents, who have had very little contact with Mother since the end of 2002. (N.T., 10/1/04, p. 78.) Indeed, Mother’s parents have not been inside Mother’s home since she moved in with Mr. Hirschbuhl, and only see the children while they are with Father. (N.T., 10/1/04, pp. 86-87,102.) Father’s brother’s and sister’s testimony also made clear that their involvement with the children is limited to times when the children are with Father.

Beginning March 2003, Father increased his custodial time to have the older two children every Wednesday night and all four children on alternate weekends. (N.T, 7/7/04, p. 14; 8/12/04, p. 76.) In April 2003, Father ended his employment at the chiropractic office and began working for his brother’s tree service and landscaping business. (N.T, 10/1/04, p. 168.) He took this job because it provided a salary that was similar to what he had been making with Mother as a chiropractor and, most importantly, because it provided a very flexible schedule to allow him to spend time with his children. (N.T, 10/1/04, pp. 165-70.)

In May 2003, Mother and the children moved into Mr. Hirschbuhl’s home. (N.T, 7/7/04, p. 21.) Subsequently, Mother employed caretakers approximately 22 hours per week to watch the children and help with housework. (N.T, 10/1/04, p. 36.) By agreement of the parties, beginning May 21, 2003, Father increased his time with the children such that he had all four children every Wednesday night and alternate weekends. (N.T., 7/7/04, pp. 19-20.) This was the arrangement in place at the time of our custody hearings. (N.T., 8/12/04, pp. 76-77.)

In the spring of2003, the parties attempted to mediate their differences arising out of the separation. (N.T., 8/ 12/04, p. 17.) The mediation failed when no agreement could be reached on economic issues. (N.T., 8/12/04, p. 22.) On May 30, 2003, Mother filed for divorce and included a petition for custody. On November 7,2003, after attending an unsuccessful custody conference before a custody conference officer, the parties filed a stipulation for a custody evaluation by Andrea Sywulak Ph.D.

Craig Weiss Ph.D., Dr. Sywulak’s partner, was enlisted by Dr. Sywulak to conduct a joint evaluation, whereby each would cover different aspects of the evaluation. The evaluation took place between December 2003 and March 2004, resulting in a joint report of findings and recommendations dated April 8, 2004. (Exhibit P-12.) The evaluators’ recommendation was for the parties to share legal custody and for Mother to have primary physical custody of the children, subject to Father’s partial physical custody on Wednesday nights and every other weekend. In essence, the evaluators recommended that the informal custody arrangement that developed after the parties separated, and that was in place at the time of the evaluation, be maintained. The evaluators offered this recommendation, despite the fact that the parties had spent at least equal time raising the children, and despite the overwhelming positive results of this arrangement on the children.

As set forth in detail below, the record before us did not support many of the evaluators’ significant factual findings upon which they based their recommendation. Moreover, in some instances, the evaluators made credibility determinations that differed from this court’s assessment of credibility. As such, while we carefully considered the Sywulak/Weiss report and their testimony, we discounted the weight of their recommendation in reaching our determination of the best interests of the children.

The parties’ divorce was finalized on January 29,2004, (N.T., 7/7/04, p. 21) and on March 13, 2004, Mother married Mr. Hirschbuhl. (N.T., 10/1/04, p. 3.) As part of the parties’ equitable distribution agreement that occurred in January 2004, Father agreed to move out of the marital home by April 1, 2004, and, on March 29, 2004, he moved into a three-bedroom townhouse in Doylestown owned by his sister. (N.T., 10/1/04, p. 153.) Father’s sister also stays at the house on a limited basis and spends the remainder of her time with her fiance, with whom she has plans to buy a new home in the near future. Afterward, she will hold the townhouse as a rental property, which will allow Father to stay there indefinitely. (N.T., 12/3/04, pp. 253-54.)

The parties appeared before this court for hearings on a custodial arrangement that was in the best interests of the children on July 7, 2004, August 12, 2004, October 1,2004, and December 3,2004. As there was clear bilateral hostility between the parties, at the conclusion of the hearing on October 1, 2004, we entered an interim order that they immediately commence co-parent counseling. (N.T., 10/1/04, p. 230.)

On December 8,2004, after considering all of the evidence presented, we determined that it was in the best interests of the children for Mother and Father to share legal custody of the children and to divide physical custody of the children equally. Accordingly, we entered an order setting forth an arrangement that gave each parent physical custody of the children on an alternating weekly basis. Our order also required the parties to continue their co-parent counseling sessions. Mother has now appealed that order.

In her statement of matters complained of on appeal, Mother raises the following issues:

(A) The trial court erred by failing to give appropriate weight to the testimony of the two neutral custody evaluators.

(B) The trial court erred in awarding Father shared physical custody, given his and his families’ overt hostility towards Mother.

(C) The trial court erred by awarding shared physical custody to the parties, given the minimal level of cooperation between the parties.

(D) The trial court erred by disregarding the express preferences of the children.

(E) The award of shared physical custody in the case sub judice was a result of a pronounced bias towards equal physical custody on the part of the trial court.

(F) The trial court erred by placing improper weight upon the testimony of appellee (Father), given his profound lack of credibility at trial.

(G) The child custody award issued by the trial court is not in the best interests of the children.

(H) The child custody award issued by the trial court is contrary to the weight of the evidence.

(I) The child custody award issued by the trial court is contrary to law.

These nine issues fall into two general categories. First, that we failed to give appropriate weight or consideration to certain evidence and therefore made a custody determination that was not in the best interests of the children, and, second, that we had an improper bias towards an equal physical custody order. We address both of these areas below.

(1) This Court Properly Evaluated the Evidence and Made a Custody Determination That Was in the Best Interests of the Children

In any custody determination, our paramount consideration is the best interests of the children. Myers v. DiDomenico, 441 Pa. Super. 341, 657 A.2d 956 (1995). The “best interests” standard is decided on a case-by-case basis and considers all factors that legitimately have an effect upon the children’s physical, intellectual, moral and spiritual well-being. Arnold v. Arnold, 847 A.2d 674 (Pa. Super. 2004). With regard to issues of credibility and weight of the evidence, such determinations are within the discretion of the trial court that presided over the hearings and viewed the witnesses firsthand. Thus, appellate courts must defer to the trial court on those issues. Johns v. Cioci, 865 A.2d 931 (Pa. Super. 2004).

At the inception of the hearings before this court, Mother asserted that it was in the best interests of the children that she be granted primary physical custody of the children. Although substantial credible evidence established that during extended periods of time F ather was the primary custodian, he did not request primary physical custody but rather asserted that the best interests of the children required an equal physical custodial arrangement.

While our decision to award equal physical custody to both parents was premised on numerous factors, perhaps the most consistent evidence throughout the course of the four days of hearings was that the four children were well-adjusted, relatively happy, active, intelligent children who benefited from the parenting of both Father and Mother. Thus, in determining the best interests of the children, we saw no reason why this arrangement should be drastically altered. Our determination that equal physical custody was in the best interests of the children was also based upon our factual findings that:

• The children love and respect each parent;

• Both Father and Mother have expended considerable effort, each in their own way, in raising the four children. While the parties lived together, Father spent at least 50 percent of the time, if not more, raising the children;

• Both Father and Mother have provided and will provide the children with a good home environment;

• Both Father and Mother have the job flexibility to spend a substantial amount of time with the children;

• Equal physical custody will permit the children to spend more time with both Father’s and Mother’s extended families;

• Equal physical custody would not cause any disruption in the children’s lives, as the parties live relatively near to each other and the children would continue to attend the same private schools that they currently attend.

In light of these findings, especially with regard to the quality of the adjustment ofthese children, we determined that the best interests of the children would be served by a custodial arrangement that gave Father and Mother equal time. This arrangement most closely matches the amount of time the parties spent with the children during the marriage, which allowed the children to assimilate the best qualities of both parents.

On appeal, Mother asserts that we erred in reaching our determination in that we failed to consider or give appropriate weight to certain evidence. Before addressing this claim in detail, we reiterate that issues of credibility and weight of the evidence are within the sole discretion of the trial court. Johns v. Cioci, supra.

Mother first asserts that we failed to give “appropriate weight” to the report and testimony of the two custody evaluators, who issued a joint recommendation that Mother have primary physical custody of the children. While we carefully considered this evidence, we exercised our discretion to assign it whatever weight we deemed appropriate. Accordingly, we chose to discount the weight of that evidence as several of the evaluators’ recommendations were based on facts that were not supported by the record. Moreover, other recommendations were based on credibility determinations that differed from this court’s.

With respect to those factual findings, the evaluators’ report at times was critical of both parents and at other times noted that both parents had bonded and loving relationships with the children. It included observations that Father “tended to be relatively emotionally reserved” (exhibit P-12, p. 6) and that he was “reportedly a bit more disconnected from the children.” (Exhibit P-12, p. 8.) The evaluators summarized the factual basis for their recommendations as follows:

“Based on the information gathered and reviewed during the evaluation, it is evident that Jeremy, Luke, Arielle and Gabriel Haug have clearly bonded with both parents, as well as with Wayne Hirschbuhl, Mother’s new husband. Although [Father] insists that [Mother] is suffering from emotional and psychological problems, it is these evaluators’ opinion, within a reasonable degree of psychological certainty, that neither Mother, Father, nor Wayne Hirschbuhl are suffering from any emotional or psychological disorder. All are determined to be ‘good enough’ parents who take adequate care of the minor children. The children are very comfortable in both homes and with all the adults who were evaluated. While Mother and Father may have different parenting styles, the Haug children have sufficiently adjusted to both homes. It is also clear that [Father] and [Mother] do not co-parent well.
“While Mother has made some effort at co-parenting, it is clear that some of her correspondence and phone calls could accurately be perceived as negativistic and attacking Father and those who support him. She may not always recognize this and may be surprised when she does not get the desired results. [Father], on the other hand, apparently has made little attempt at productive co-parenting. This is of concern to these evaluators. Also, [Father] has unclear plans for where he will be residing. Fie states he will be renting his sister’s three-bedroom townhouse, and notes that he doesn’t think she will be living there, but neither is certain. Mother has a permanent home. It is also apparent that, although the Haug children have bonded with both parents, Mother has essentially been the primary parent throughout their lives, and she currently is their primary psychological parent. Also, [Mother] works a part-time schedule, but Father is working full-time, even though he insists that there is flexibility in his schedule. Significantly, when asked who would care for the children during times he was working and Mother was not, he replied that he would have family or friends watch the children as opposed to Mother having them in her care. The current custody differences seem to stem more from marital differences than actual parenting difficulties. Moreover, matters are made worse by the fact that [Mother’s] extended family has split and chosen sides, with her parents and at least one brother favoring [Father], while her sisters are mostly in her camp. There are other divisions among various family and friends on both sides, more so than is typically seen in other custody evaluations. This only serves to make matters more difficult for the minor children to feel comfortable in both households.” (Exhibit P-12, p. 25.)

As stated above, the record before us did not support several of the key aspects of these findings. First, the evaluators found that Father was unclear and/or evasive as to where he would be residing in the future. At trial, however, Father testified that he was and would continue to be living in Doylestown in a three-bedroom townhouse that was owned by his sister. (N.T., 10/1/04, pp. 153-55.) Father’s sister, a school teacher, testified that, while she currently still stays at the townhouse at least part of the time, she is moving out of that house permanently to live with her fiance. Father’s sister credibly testified that she intends to keep the townhouse as a rental property and that Father may remain there indefinitely. (N.T., 12/3/04, pp. 253-54.)

The evaluators also concluded that Mother was the children’s primary parent throughout their lives. This conclusion is completely contradicted by the record. At trial, it was clear that Father was responsible for at least 50 percent of the parenting during the majority of the children’s lives while the parties were living together. The parties’ work arrangement from 1993 to October 1996 was such that they alternated workdays to ensure that each parent spent equal time with the children. In October 1996, when Mother had her accident, Father’s parental role increased beyond the 50 percent level. While Mother gradually recovered from her accident up through the time of separation, Father continued to have a very active role in the parenting of the children.

Mother herself acknowledged that from the time the children were bom, Father was very active in the parenting of the children. (N.T., 10/1/04, pp. 191-92.) It was undisputed that Father changed the children’s diapers, bathed the children, fed the children, shopped for the children, read with the children, cooked with and for the children, did chores with the children, participated in the children’s education, transported the children to different activities, participated in the children’s sporting events and other activities, took the children to medical appointments, talked to the children about sports, books, school, friends, and other topics, and otherwise tended to the children as a parent would. (N.T. 10/1/04, pp. 174-97.)

The children’s maternal grandparents confirmed that Father was very involved in raising the children. Indeed, Mother’s father referred to him as “Mr. Mom.” (N.T., 10/1/04, pp. 72-73, 124.) The parties’ housekeeper, Mother’s aunt, Father’s brother and Father’s sister all offered testimony that confirmed the significant extent of Father’s involvement in the parenting of the children. We also found Father’s testimony that he shared in all parental responsibilities to be very credible. Given the volume and consistency of this testimony, the evaluators’ observation that Mother was the primary parent while the parties were together is simply unfounded.

The evaluators also concluded that Mother has more flexibility in her schedule to be with the children than Father has in his schedule. This conclusion was also not supported by the custody hearing record.

Mother testified that she works approximately 10 to 15 hours per week and during that time has caretakers tend to the children. Father works for his brother’s tree servicing and landscape company, and testified that he has the ability to set his own schedule. (N.T., 10/1/04, p. 166.) As a salaried employee, Father can arrange his schedule such that he can work long hours one week and have the following week off from work without affecting his income. (N.T., 10/1/04, pp. 20, 166-67.) Ken Haug, Father’s brother, employer, and former next door neighbor, corroborated Father’s testimony regarding the flexibility of his schedule. (N.T., 12/3/04, p. 247.) Mother offered no evidence to refute any of this testimony. In light of this record, we concluded that Father has as much or more flexibility in his schedule than Mother.

The evaluators also found it significant that, when asked who would care for the children when he was working and Mother was not, Father replied that he would have family or friends watch the children as opposed to allowing Mother to have them in her care. (Exhibit P-12, p. 25.) However, the evaluators ignored that, when Mother works, she pays caretakers to watch the children rather than having them with Father. (N.T., 10/1/04, p. 39.) Under these circumstances, it is difficult to understand how the evaluators would criticize Father but not Mother.

At trial, both Dr. Sywulak and Dr. Weiss also opined that Father was emotionally detached from the children, and that he appeared overwhelmed when Dr. Sywulak observed him interacting with the children in the playroom in her office. (N.T., 8/12/04, pp. 170, 193, 200.) These observations regarding Father’s connection and interaction with the children were based on a total of one and a half hours of observation of Father and the children interacting under somewhat artificial circumstances, where they were aware that they were being evaluated. (N.T., 8/12/04, p. 225.)

The overwhelming weight of the evidence at trial from witnesses that knew and interacted with the family in natural settings on a regular basis over many years refuted the evaluators’ finding that Father was emotionally detached from the children. These witnesses consistently and credibly testified that Father and the children were emotionally connected and that Father was always there to tend to their needs, emotionally and otherwise. These witnesses included members of Father’s family, and, more significantly, members of Mother’s family, including those closest to her — her father (N.T., 10/1/04, p. 126), mother (N.T., 10/1/04, p. 73), and aunt. (N.T., 10/ 1/04, p. 214.) While we recognize that there was some hostility between Mother and her family, this hostility was in no way so pronounced that it would sway Mother’s own family to falsely testify that Father was in fact emotionally connected with his children. The evidence of record of Father’s connection to his children was too consistent and too strong to overcome this possible bias. Indeed, the parties’ housekeeper during the marriage, an unbiased and credible witness, strongly contended that Father was connected to his children in every way. (N.T., 12/3/04, pp. 231-34.)

The parties also stipulated that this court should speak with the two oldest children, Gabriel (age 10) andArielle (age 8). Both children expressed that they feel comfortable going to either parent for advice and that both parents give good advice. (N.T., 12/3/04, pp. 290,300-301.) We viewed this as further evidence that Father is not distant and that he has an emotional connection with his children.

In light of all of the above testimony from various sources, including Mother’s own family, and the amount of involvement Father had in raising his children, we concluded that Father was very much emotionally connected to his children despite the evaluators’ conclusions to the contrary.

The evaluators also made credibility determinations regarding Mother and Father. In their report, the evaluators noted that: “it became obvious that [Father] tended to obfuscate when these evaluators tried to determine and ascertain important pieces of information. Moreover, [Father] often offered information which was in direct variance with itself.... Additionally, unless these evaluators asked questions in a very specific manner, he would refuse to give a straightforward answer.” (Exhibit P-12, p. 10.)

Dr. Weiss confirmed that determination at trial when he testified that Mother was credible and that Father was not. (N.T., 8/12/04, p. 126.) In contrast, at trial we found that Father was a credible witness and that on many material issues his testimony was corroborated by one or more sources.

Mother asserts in her statement of matters complained of on appeal that we erred due to “Father’s profound lack of credibility.” The record before us simply does not support the proposition that Father’s testimony lacked credibility, “profound” or otherwise. Indeed, our careful review of the record confirmed our initial conclusion that, on matters relating to the best interests of the children, Father was more than credible.

In determining a custodial arrangement that was in the best interests of the children, we had to weigh the evaluators’ recommendations and the reasons for those recommendations. We determined that the evaluators’ recommendations were at least partly based on factual conclusions that were not supported by the record and credibility determinations that were different from our own. As such, we discounted the weight of their recommendations. The weight that we assigned them was entirely appropriate given the evidence of record.

Mother next argues that we erred in awarding equal physical custody, given Father’s and Father’s families’ hostility towards Mother, and given the minimal level of cooperation between the parties. In fashioning our custody order, we were fully aware of the hostility between the parties, the hostility toward Mother from the extended families of both Father and Mother, and the general level of cooperation between them. We believe that Mother is at least equally to blame for this hostility.

In light of this situation, we determined that it was in the best interests of the children that Mother and Father work to reduce their level of hostility through co-parent counseling, rather than hope that it would resolve itself by awarding one parent primary physical custody and perhaps minimizing contact between the parties. Accordingly, we ordered the parties to participate in co-parent counseling even prior to the conclusion of the hearings and reiterated that directive in our December 8,2004 order.

Mother next argues that we failed to consider the preferences of the children when awarding equal physical custody. The weight to be accorded to a child’s preference varies with the age, maturity and intelligence of that child, together with the reasons given for the preference. Wheeler v. Mazur, 793 A.2d 929 (Pa. Super. 2002). We considered the children’s preferences in light of these factors when rendering our decision.

In this case, the parties stipulated that this court would only hear from the two oldest children, Gabriel and Arielle. This court interviewed both children in chambers in the presence of the counsel. The oldest child, Gabriel, was almost 11 years old at the time of our hearings. He expressed a preference for a custody arrangement in accordance with the post-separation arrangement that developed. This statement greatly differed from the wishes he originally expressed to the custody evaluators, wherein he desired to have more time with Father. (N.T., 12/3/04, p. 283.) The evaluators noted “Gabriel informed this evaluator that he would like to spend half of the time with his father, as he misses him.” (Exhibit P-12, p. 22.)

When asked why he now wanted to maintain the post-separation arrangement, Gabriel expressed that the weekends with Father are hectic and that he enjoys quiet time that he has at Mother’s residence, just relaxing with the immediate family. (N.T., 12/3/04, pp. 281-82.) However, when asked by this court, Gabriel agreed that, if he had quiet time with Father during the week, he would like that arrangement too, and that under those circumstances he would like to spend more time with Father. (N.T., 12/ 3/04, pp. 286-87.) We had that preference, among other considerations, in mind when we fashioned our order giving each parent alternating seven-day blocks of physical custodial time with the children.

We also interviewed Arielle, who was 8 years old at the time of our hearings. She expressed that she wanted to keep the present arrangement. When asked why, she hesitated and eventually stated that she liked living primarily with Mother because she liked Mr. Hirschbuhl’s house and that Mr. Hirschbuhl was nice. She did not like that Father lived in a house that was part of a condominium development and thought that Father should get his own house. (N.T., 12/3/04, pp. 297-99.)

On December 8, 2004, we noted in open court that both parties provided homes that were appropriate environments to raise the children. (N.T., 12/8/04, p. 3.) Mother has not challenged that finding. To the contrary, she agreed that Father provides a comfortable home for the children. (N.T., 8/12/04, p. 91.) We also considered whether the materialistic opportunities provided by Mr. Flirschbuhl (i.e., the pool, farmhouse, and horses) which Father could not provide weighed in Arielle’s preference.

We gave careful consideration to Arielle’s testimony. Flowever, given her age and the reason for her preference for more time with Mother, we determined that her preference was greatly outweighed by the other factors set forth above, which indicated that the best interests of all four children would be served by an equally divided custodial arrangement.

Mother next argues that we erred by placing improper weight upon Father’s testimony, which Mother concluded lacked credibility. Again, as the finder of fact, it is our province to determine credibility, not the adverse party. It is also clear that, on issues of credibility, the appellate courts should defer to the findings of the trial judge, who is in the unique position to evaluate the witnesses on a firsthand basis, noting inflections of their voices and other nonverbal means of communication that are not reflected in the transcript. Johns v. Cioci, supra. After considering the testimony offered and the manner in which it was conveyed, we determined that Father was a credible witness.

(2) Our Award of Equal Physical Custody Was Based Upon the Best Interests of the Children and Not a Bias Towards Equal Physical Custody

Lastly, Mother argues that our award of equal physical custody was based on a “pronounced bias” towards equal physical custody, rather than the facts of this case. Mother raises this claim only after we did not agree with her position that she should be primary custodian of the children. Indeed, at no time during these proceedings did Mother question the impartiality of this court or imply that we somehow harbored a bias towards equal physical custody. Nor did Mother request this court to recuse itself at any time for this or any other reason. As this issue was not raised at the trial court level, it is waived and cannot form the basis for appellate relief. Pa.R.A.P. 302(a).

Yet even if this argument was not waived, there is nothing in the record that supports Mother’s contention that our ruling was the product of any bias. To the contrary, the record is clear that both Father and Mother have been good and nurturing parents who have raised well-adjusted children, and that the children love and respect their parents. The record is also clear that both Father and Mother have spent approximately equal amounts of time in parenting the children and that the children have emotional attachments to both parents. It was also clear that both Father and Mother provide the children with good home environments and both have the flexibility to spend substantial amounts of time with the children. We also note that the children are only able to develop relationships with their extended family while they are with Father, and that increasing Father’s custodial time to an equal custody arrangement will not have impact on the children’s education. All of these factors influenced our decision to award equal physical custody. That decision was not the product of bias.

Thus, for all of the above reasons, we determined that our December 8,2004 order was in the best interests of the children.

      . The parties also employed a housekeeper who came to the house several hours a week. (N.T., 12/3/04, pp. 227-28.)

      . Mother purchased the Newtown home with funds that she obtained by borrowing against the marital estate. (N.T., 12/3/04, p. 85.)

      . Mi\ Hirsphbuhl’s home sits on a three and one-half acre property that also houses sheep, cats, horses and a dog. Mr. Hirschbuhl also rents another three acres across the street from his property for space for the hprses. (N.T., 7/7/04, pp. 23-24.)

      . Father’s salary while working as a chiropractor was $700 per week. (N.T, 10/1/04, p. 170.) He currently earns $600 working for his brother. (N.T, 10/1/04, p. 167.)

      . Since the summer of 2003, Mother has had four different caretakers for the children. (N.T, 10/1/04, p. 35.)

      . There was no indication of record to indicate that Dr. Sywulak sought or received the agreement of the parties prior to enlisting the aid of Dr. Weiss.

      . The youngest child, Jeremy, attends the Montessori school. The older three children attend Newtown Friends School. The parties agreed to escrow a significant amount of money from the sale of the marital home to fond the tuition for this private schooling for the remainder of the children’s education.

      . To a certain degree, that finding may have been related to the timing of the evaluation. The evaluators completed their evaluation in March 2004 and issued their report in early April 2004. In January 2004, the parties reached an agreement that required Father to be out of the marital residence by April 1,2004. While Father moved out of the marital home in March 2004, the record was unclear as to when he made the decision to do so.

      . Dr. Weiss spent no time evaluating the children. (N.T., 8/12/04, p. 191.) Dr. Sywulak observed Father and the children interact for half an hour in the playroom in her office and another hour at her home visit at Father’s former residence. (N.T., 8/12/04, p. 225.)


source: Caselaw Access Project

author: VAN HORN, J,

license: Public Domain

text:
    DeShong v. State Farm Life Insurance Company

      C.P. of Fulton County,
    no. 49 of 2003-C.

      Karl R. Hildabrand, for plaintiff.

      Daniel L. Rivetti, for defendant.
    March 18, 2005
   VAN HORN, J,

BACKGROUND OF THE CASE

Introduction

This case comes before the court from oral argument upon plaintiff’s, Melissa DeShong’s, petition to compel discovery responses from defendant and defendant’s, State Farm’s, answer to plaintiff’s petition to compel discovery responses. Plaintiff’s petition is in response to defendant’s refusal to produce defendant’s entire Life Claims Process Guide, along with the documents generated by defendant concerning its decision to pay benefits to plaintiff in this case. Plaintiff alleges that the requested discovery is relevant, as it “will provide the basis for defendant’s denial of the payment of the policy’s proceeds and show whether or not defendant followed its own procedure in determining whether to pay the policy’s proceeds.” Additionally, plaintiff alleges the requested discovery “may show defendant’s bad faith in failing to investigate plaintiff’s claim before denying payment of the policy’s proceeds.” Defendant counters plaintiff’s allegations by asserting that the requested documents “have no bearing on the issues presented in this case.” Defendant further asserts its position by indicating that plaintiff has not put forth a claim for bad faith in its complaint.

Facts

In February of 2002, Andrew Boyd DeShong, plaintiff’s husband, and defendant entered into a contract for life insurance for which a policy was issued. On June 20, 2002, Mr. DeShong and plaintiff were returning home from an outing. The couple argued in the car during the ride home. Upon arriving home, Mr. DeShong placed his wedding ring on the stove and went to the basement. He called for plaintiff to come to the basement, but she did not respond because she was on the telephone. Later, when plaintiff went to the basement in search of her husband, she found him hanging by a dog chain tied to a ceiling beam.

Plaintiff insists that Mr. DeShong’s death was the result of an accident rather than from suicide. Plaintiff alleges certain facts to support her belief. For instance, plaintiff states that Mr. DeShong had a history of threatening harm to himself in an attempt to gain attention and sympathy from plaintiff. Once receiving the desired attention, he abandoned any threatened suicide attempts. Additionally, plaintiff claims that Mr. DeShong was six feet two inches tall and the ceiling beam only five feet eight inches from the floor, making suicide by hanging impractical.

Plaintiff submitted a claim to defendant for the basic plan benefit of $300,000 under Mr. DeShong’s policy. Defendant responded by paying the limited death penalty benefit under the policy, which amounted to premiums paid by the insured less dividends. Defendant’s reason for paying the limited death benefit is based on its conclusion that Mr. DeShong’s death was the result of suicide rather than from an accident.

Procedural History

On March 6,2003, plaintiff filed her complaint alleging breach of contract from defendant’s failure or refusal to pay life insurance benefits under Mr. DeShong’s life insurance policy. On May 2, 2003, defendant filed its answer and new matter to plaintiff’s complaint alleging that plaintiff’s recovery was limited to the premiums paid on the policy less any dividends received by Mr. De-Shong, as his death was the result of suicide. On May 15,2003, plaintiff responded to defendant’s new matter specifically denying defendant’s averments.

Subsequent to the initial pleadings, the parties engaged in a lengthy process of discovery. Defendant sought production of documents and things for discovery pursuant to Pa.R.C.P. 4009.22 from the Pennsylvania State Police and the office of the Fulton County Coroner on May 14, 2003, and June 20,2003, respectively. Plaintiff conducted a deposition of defendant’s employee, Mary Aloy, on October 30,2003. On August 23,2004, plaintiff served on defendant plaintiff’s second request for production of documents. Plaintiff filed on December 3, 2004, plaintiff’s petition to compel discovery responses from defendant. The court responded with a rule requiring defendant to answer said petition within 20 days. Defendant responded with defendant’s answer to plaintiff’s petition to compel discovery responses and defendant’s responses to plaintiff’s second request for production of documents on December 27,2004. The court responded by order of court dated January 5, 2005, ordering that oral argument be held on plaintiff’s petition on February 15, 2005. This matter is now ripe for decision.

DISCUSSION

The underlying issue in this case is whether or not Mr. DeShong’s death was, in fact, the result of a suicide, thereby requiring defendant to only pay the limited death benefit under the life insurance policy. Plaintiff argues in her petition that the documents requested are relevant to this issue because they will (1) provide the basis for defendant’s conclusions, (2) indicate whether defendant followed its recommended procedures in reaching its conclusions, and (3) indicate whether defendant exercised bad faith in following its recommended procedures. For purposes of this discussion, the court addresses plaintiff’s first two arguments simultaneously as they are closely related, and then addresses the issue of bad faith.

Whether the requested discovery is relevant to provide the basis of defendant’s conclusions and to indicate whether defendant followed the recommendedprocedure in reaching its conclusions?

Plaintiff made an initial request for the subject documentation during the deposition of defendant’s employee, Mary Aloy. [n.10.] Plaintiff then proceeded to make a second request pursuant to Pa.R.C.P. 4009.1 and in accordance with the procedures outlined in Pa.R.C.P. 4009.11. Defendant eventually responded to plaintiff’s request by submitting a copy of the table of contents to the Life Claims Process Guide along with the Life Claims Investigation Manual, investigations section, and suicide claims chapter. Defendant objects to the production of the entire Life Claims Process Guide on the assertion that the information sought is irrelevant to the issues presented in this case, [n.5.] The court agrees and denies plaintiff’s request on the basis of relevancy.

Pa.R.C.P 4003.1 governs the scope of allowable discovery by stating:

“Rule 4003.1. Scope of discovery generally. Opinions and contentions.
“(a) Subject to the provisions of Rules 4003.2 to 4003.5 inclusive and Rule 4011, a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.
“(b) It is not ground for objection that the information will not be admissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
“(c) Except as otherwise provided by these rules, it is not ground for objection that the information sought involves an opinion or contention that relates to a fact or the application of law to fact.”

The general subject matter involved in this action is the contractual agreement entered into between Mr. DeShong and defendant in the manner of the life insurance policy issued by defendant to Mr. DeShong in February of 2002. Plaintiff’s allegation that defendant breached this contract by failing to pay the basic life benefit at the time of filing of the complaint could be said to implicate the terms of the policy addressing payment of the basic plan amount. Defendant’s subsequent decision to pay the limited death penalty under the policy, while not rendering plaintiff’s complaint moot, has the effect of implicating the limited death penalty term of the policy as the specific subject matter involved in this pending action. The limited death penalty term provides:

“Limited death benefits. If the insured dies by suicide while sane or by self-destruction while insane within two years from the issue date of the policy, the basic plan amount will not be paid. The proceeds in this case will be limited to the premiums paid on the basic plan less any dividends paid on the basic plan. Each rider has its own limited death benefit provision.”

It is undisputed that Mr. DeShong died within two years of the issue date of the policy. It is undisputed that defendant made payment to plaintiff in accordance with the limited death penalty benefits term of the policy. The only question is whether the facts indicate that Mr. DeShong’s death was from suicide rather than from accidental and unintentional means.

Plaintiff’s complaint alleges breach of contract for defendant’s failure to pay the basic plan amount upon Mr. DeShong’s death. The complaint does not allege that defendant was negligent or otherwise remiss in following its claims-processing procedures and protocols when handling plaintiff’s claim. For this reason, the court fails to understand how discovery of defendant’s entire Life Claims Process Guide, which contains 44 sections pertaining to the handling of life insurance claims, could have a bearing on the basic facts surrounding the true nature of Mr. DeShong’s death.

Defendant’s counsel stated at oral argument that defendant’s conclusions in this case were based solely on information obtained in reports offered by the Pennsylvania State Police and the Fulton County Coroner. Defendant’s employee, Mary Aloy, in her answer to plaintiff’s interrogatories confirmed that during her investigation she received information from the Pennsylvania State Police, the Fulton County Coroner, plaintiff (by way of plaintiff’s counsel), and Yonnie Reed (Mr. DeShong’s State Farm agent). Ms. Aloy stated that the information gathered by her and included in the DeShong file was forwarded to Nancy Boden whom Ms. Aloy believes made the final determination in this case. As Ms. Boden was scheduled for deposition in the weeks following oral argument, the court is confident that any information regarding her ultimate conclusions and decision-making methodology would be readily available to plaintiff through this discovery process. The court is convinced that the information that formed the basis of defendant’s conclusions is readily available to, or otherwise in the possession of, plaintiff, and could not be further augmented by allowing plaintiff to delve into defendant’s Life Claims Process Guide.

The production of the entire Life Claims Process Guide is found to be even less relevant to the subject matter of this case because defendant has already produced the Life Claims Investigation Manual pertaining to the investigation of suicide claims. The chapter on suicide claims includes a section outlining suicide investigation. The section directs that all available facts pertaining to the cause of death must be obtained. The section indicates that police and coroner reports are two of the best sources of information in a suicide investigation. The section states that defendant may reach a contrary conclusion to that indicated in the death certificate, and clear evidence would be necessary to support such a conclusion.

Here, the court finds that the suicide claims section supports defendant’s contention that it relied on the police and coroner reports in making its determination. The chapter outlines suggested procedures when dealing with contested claims or conclusions that run counter to official findings. Any relevant information concerning defendant’s recommended procedures concerning suicide investigation can be obtained or reasonably implied from reading this chapter. The court concludes that discovery of the portions of the Life Claims Process Guide not relevant to the subject matter of the pending claim would not lead to the procurement of admissible evidence. Therefore, plaintiff’s inquiry falls outside of the scope of allowable discovery pursuant to Pa. R.C.P. 4003.1.

Whether the requested discovery is necessary to indicate if defendant exercised badfaith in following its recommended procedures?

Plaintiff next argues that discovery of defendant’s entire Life Claims Process Guide may indicate that defendant exercised bad faith in making its determination that plaintiff was due the limited life benefit under Mr. DeShong’s life insurance policy. The court rejects this argument for the simple reason that plaintiff has not pled a cause of action alleging bad faith.

Actions involving alleged bad faith under an insurance policy are controlled by statute. 42 Pa.C.S. §8371 states:

“In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take the following actions:
“(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3 percent.
“(2) Award punitive damages against the insurer.
“(3) Assess court costs and attorney fees against the insurer.”

Pennsylvania law defines bad faith on the part of insurance carriers as “any frivolous or unfounded refusal to pay proceeds of [a] policy.” Adamski v. Allstate Insurance Company, 738 A.2d 1033, 1036 (Pa. Super. 1999). The Superior Court advanced a two-part test to determine bad faith, which requires the alleger to prove by clear and convincing evidence that: “(1) the insurer lacked a reasonable basis for denying coverage; and (2) the insurer knew or recklessly disregarded its lack of a reasonable basis.” Id. citing Terletsky v. Prudential Property & Casualty Insurance Co., 437 Pa. Super. 108, 649 A.2d 680 (1994).

As stated above, plaintiff’s complaint does not implicate defendant’s handling of plaintiff’s claim, nor does it allege that defendant lacked a reasonable basis for determining that the limited life benefit was the appropriate payment in this case. Plaintiff’s complaint only alleges breach of contract for failure to pay the basic plan amount under the policy. The court reasons that a bad faith claim in this case would arise from the same transaction as a claim for breach of contract. As such, plaintiff could have joined an action for bad faith with the action for breach of contract in the complaint pursuant to Pa.R.C.P. 1020(d), which states:

“(d) If a transaction or occurrence gives rise to more than one cause of action heretofore asserted in assump-sit and trespass, against the same person, including causes of action in the alternative, they shall be joined in separate counts in the action against any such person. Failure to join a cause of action as required by this subdivision shall be deemed a waiver of that cause of action as against all parties to the action.”

As plaintiff’s complaint does not raise a bad faith cause of action nor was it amended to include a bad faith cause of action even after defendant paid the limited life benefit on the conclusion that Mr. DeShong committed suicide, the court will not now permit discovery for the purpose of proving a cause of action not brought and consequently waived. The court concludes that discovery of the entire Life Claims Process Guide is not permitted for the purpose of proving bad faith.

CONCLUSION

Based on the court’s determination that the contents of defendant’s entire Life Claims Process Guide fall outside of the scope of Pa.R.C.P. 4003.1 as not relevant to the subject matter involved in the pending action, and as the contents of said Guide might not be discovered for the purpose of proving a cause of action not raised and, therefore, waived pursuant to Pa.R.C.P. 1020(d), plaintiff’s discovery request is denied.

ORDER

And now March 18, 2005, having considered plaintiff’s petition to compel discovery responses and defendant’s answer to plaintiff’s petition to compel discovery responses and the parties’ oral argument in this matter, it is hereby ordered that plaintiff’s petition to compel discovery responses is denied.

      . Petition p. 1 ¶6 (December 3, 2004).

      . Petition p. 2 ¶8 (December 3, 2004).

      . Petition p. 3 ¶12 (December 3, 2004).

      . Petition p. 3 ¶13 (December 3, 2004).

      . Answer p. 2 ¶¶12 and 13 (December 27, 2004).

      . Answer p. 2 ¶13 (December 27, 2004).

      . The parties disagree as to the actual date of the policy, but both agree that it was issued in February of 2002. The disagreement as to the actual date has no bearing on the case.

      . It is agreed that Mr. DeShong had been drinking alcohol during the outing, but the parties disagree as to the exact amount.

      . As of the date of the fding of plaintiff’s complaint, no decision had been made by defendants regarding the payment of plaintiff’s claim.

      . It is during this deposition that plaintiff claims to have made the first request for discovery of the documents that are the subject of this opinion.

      . Defendant did not answer plaintiff’s second request within 30 days as required pursuant to Pa.R.C.P. 4009.12. However, plaintiff did not motion for sanctions pursuant to Pa.R.C.P. 4019(a)( 1 )(vii).

      . Plaintiff’s petition requests defendant’s Life Claims Process Guide as well as defendant’s documentation explaining its decision to not pay the basic plan benefit. At oral argument, plaintiff indicated that defendant’s employee, Nancy Boden, was scheduled to be deposed two weeks from the date of oral argument. Ms. Boden is the person responsible for defendant’s decision to only pay the limited death benefit in this case, and it was her documentation that was the subject of plaintiff’s petition. As plaintiff did not address Ms. Boden’s documentation at oral argument, and as Ms. Boden was due to be deposed by defendant, the court will limit its discussion only to the discoverability of defendant’s Life Claims Process Guide.

      . Petition p. 3 ¶¶12 and 13 (December 3,2004).

      . Complaint ¶4 (March 6,2003).

      . Answer and new matter p. 3 ¶12 (May 2, 2003).

      . Complaint ¶6 (March 6, 2003).

      . Deposition of Mary Aloy, 34:1-25 (October 30,2003).

      . Deposition of Mary Aloy, 18:18-21:15 (October 30, 2003).


author: MINORA, J,

text:
    Boezi v. Erie Insurance Group

      C.P. of Lackawanna County,
    no. 2004 CY 2260.

      Jill H. Miller, for plaintiff.

      Edward S. Neyhart, for defendant.
    February 10, 2005
   MINORA, J,

I. INTRODUCTION

Currently before the court is the petitioner’s petition to appoint arbitrators for their unanswered motorist claim.

By way of background, on July 25,2002, the plaintiff, Richard Boezi, was injured in a motor vehicle accident while on duty as a police officer. As a result of his injuries, Mr. Boezi is allegedly permanently and totally disabled. On the date of the subject accident, Mr. Boezi allegedly lived with his mother, wife and four minor children at 733-735 Taylor Avenue, Scranton, Pennsylvania. Mr. Boezi’s mother, Gaetana Boezi, maintained an automobile insurance policy with defendant in this matter, Erie Insurance Group, which policy provided underinsured motorist (UIM) protection for any resident relative. A copy of the subject policy is attached to the hearing transcript of September 28,2004, and marked as defendant exhibit “ 1.” A relative is defined in the policy as “a resident of your household who is a person related to you by blood, marriage or adoption ....” A resident is further defined in the policy as “a person who physically lives with you in your household.” Based upon the nature and extent of his injuries and damages, together with the fact that Mr. Boezi maintains he is a relative and resident of Gaetana Boezi’s household, a claim for UIM coverage under Ms. Boezi’s automobile policy with Erie was made. Erie denied coverage maintaining that Mr. Boezi was not a resident of his mother’s household and has no standing to make a UIM claim.

On September 28, 2004, undersigned held a hearing on the issue of residency. The petitioner presented the testimony of Gaetana Boezi and Richard Boezi. After the conclusion of the testimony, the undersigned directed the parties to submit proposed findings of facts and conclusions of law along with briefs if so desired. The parties did indeed opt to file proposed findings of fact, conclusions of law and written argument, thus rendering this matter ripe for disposition.

II. ISSUES

Whether Richard Boezi is a “resident” of Gaetana Boezi’s household and is therefore entitled to coverage for UIM benefits under her automobile policy issued by Erie Insurance Group.

III. JUDICIALLY ACCEPTED FINDINGS OF FACT FROM THE HEARING OF SEPTEMBER 28, 2004

(1) Gaetana Boezi is 65 years old. She is a single parent who resides with her son, Richard Boezi, at 733-735 Taylor Avenue, Scranton, Pennsylvania (the residence). (N.T. p. 5.)

(2) Ms. Boezi purchased the residence with her son, Richard, in 1992. In July 2002, Richard Boezi lived with his mother, his wife and four children at the residence. (N.T. pp. 5-6.)

(3) The residence was originally constructed as a side-by-side double family residence. When they took possession of the residence, Ms. Boezi and her son, Richard, moved into the 735 side because it was in better condition. They intended to renovate the 733 side for rental income. (N.T. pp. 6-7,47-48.)

(4) Prior to purchasing the residence, Ms. Boezi and her son, Richard, did not live together. Soon after moving into the residence, Richard Boezi married Lorie Boezi, and she and her three young children moved into residence with Richard and his mother. (N.T. pp. 8-9.)

(5) From the time Lorie Boezi and her children moved into the residence, the family, including Gaetana Boezi, used the side-by-side double family residence as a single family home. (N.T. pp. 9,23-25; pp. 10,1-3.)

(6) A common doorway existed at the basement level of the residence allowing free unfettered access between both sides of the residence. The basement areas were used for storage and a family laundry room. (N.T. p. 11.)

(7) Richard Boezi created a second doorway on the second floor to permit even greater access between both sides of the structure so the family could use both sides of the structure and both bathrooms. (N.T. pp. 11-12.)

(8) At the time of the subject accident, Richard Boezi was renovating the third floor. (N.T. p. 12.)

(9) On the first floor at the rear of the residence, a common deck area permitted additional access to and from the kitchens on both sides of the residence. (N.T. p. 13.)

(10) The entire family would normally take meals together on the 733 side of the residence. (N.T. p. 15.)

(11) On Sundays the family dined together on the 735 side of the residence. (N.T. p. 15.)

(12) Lorie Boezi prepared meals for the entire family on a regular basis. (N.T. p. 15.)

(13) On Sundays, Gaetana Boezi prepared meals for the family. (N.T. p. 16.)

(14) Lorie Boezi did the bulk of the grocery shopping for the entire family. (N.T. p. 16.)

(15) Gaetana Boezi purchased individual food items for the family as needed. (N.T. p. 16.)

(16) Lorie Boezi and Gaetana Boezi both do the laundry for the entire family, sometimes together. There is one working washer and two working dryers in the basement of the residence. (N.T. pp. 16-17.)

(17) Gaetana Boezi and Richard Boezi are the owners of record identified on the deed to the residence. (Plaintiffs’ exhibit “1”.)

(18) Richard Boezi and Gaetana Boezi are the mortgagees of record for the residence. (N.T. pp. 6, 19 and plaintiffs’ exhibit “4”.)

(19) Gaetana Boezi and Richard Boezi each contribute equally to the payment of the mortgage and taxes. (N.T. p. 19.)

(20) Richard Boezi and Gaetana Boezi are the owners of record of the residence for property tax purposes. (Plaintiffs’ exhibit “3”.)

(21) Richard Boezi and Gaetana Boezi are the named insureds on the policy of homeowner’s insurance for the residence. (Plaintiffs’ exhibit “2”.)

(22) When the Boezi children were younger, Gaetana Boezi regularly assisted her son and daughter-in-law with meal preparation, child care and supervision. (N.T. p. 21.)

(23) Richard Boezi was solely responsible for the upkeep and maintenance of the entire residence. (N.T. p. 22.)

(24) Richard Boezi made all decisions pertaining to maintenance and repair of the entire residence. (N.T. p. 22.)

(25) When the residence was purchased by the Boezis, the utilities were separate and have remained so because conversion of the utilities would be cost prohibitive. (N.T. p. 59.) Further, such a conversion would defeat the structure’s original construction configuration for resale purposes down the road.

(26) When Richard Boezi and Gaetana Boezi purchased the residence, their Erie Insurance agent, Bob Maseychick, knew that they used the structure as a single family residence. (N.T. p. 34.)

(27) Richard Boezi and Gaetana Boezi are the named account holders on bank accounts used to pay the household expenses. (N.T. pp. 39-40.)

(28) Gaetana Boezi’s bedroom is located on the 735 side of the structure. (N.T. p. 42.)

(29) The respondent’s agent, Bob Maseychick, advised Richard Boezi and Gaetana Boezi to purchase homeowner’s insurance for the 735 side and renter’s insurance for the 733 side and, at one time, to switch the two policies. (N.T. pp. 46-47.)

(30) Richard Boezi and Gaetana Boezi have always followed the advice of their Erie Insurance agent relative to these insurance matters. (N.T. pp. 46-47.)

(31) Other than the decking adjoining the first floors, no other doorway could be constructed on the first floor without compromising the structural integrity of the building. (N.T. p. 49.)

(32) The master bedroom on the 733 side was used by Richard and Lorie Boezi. (N.T. p. 50.)

(33) The remaining bedrooms on the 733 side of the residence were used by some of the Boezi children. (N.T. P-51.)

(34) The bathroom on the second floor of the 735 side was used by the entire family. (N.T. p. 51.)

(35) The third floor of 735 was being renovated for storage for the use of the entire family. (N.T. p. 51.)

(36) The master bedroom on the second floor of the 735 side was used by Gaetana Boezi as a bedroom. (N.T. p. 52.)

(37) Another bedroom on the second floor of the 735 side was occupied by one of the children, Stacy Boezi. (N.T. p. 52.)

(38) One bedroom on the second floor of the 735 side was used as a common area for all occupants. It was used as an office and computer room, and contains the children’s toys and exercise equipment. (N.T. p. 53.)

(39) The remaining bedroom on the second floor of the 735 side is also used to support the needs of all the residents, since it is used to store the family’s clothing due to inadequate closet space. (N.T. p. 53.)

(40) The household furnishings on the 735 side of the structure originally belonged to Gaetana Boezi. She brought them from her previous home. (N.T. p. 56.)

(41) The furnishings in the master bedroom on the 733 side originally belonged to Mrs. Lorie Boezi prior to her marriage to Richard Boezi. (N.T. p. 57.)

(42) The living room suite and dining room set on the 733 side originally belonged to Mrs. Lorie Boezi prior to her marriage to Richard Boezi. (N.T. p. 57.)

(43) The refrigerator on the 735 and the washer and dryer on the 733 side originally belonged to Mrs. Lorie Boezi prior to her marriage to Richard Boezi. (N.T. p. 57.)

(44) The furnishings in the children’s bedrooms on the 733 side originally belonged to Gaetana Boezi and were used by her children when they were small. (N.T. p. 57.)

(45) When Richard and Lorie Boezi married, Lorie had three children from a prior marriage. Her twins were age 3 and her son was 7 when the couple married. (N.T. p. 58.)

(46) Richard and Lorie Boezi had a daughter together. She was 8 years old at the time of the accident. (N.T. p. 58.)

(47) The property shares one common backyard. (N.T. p. 59.)

(48) All family members have free and open access to the entire residence deck, backyard, front yard and garage. (N.T. p. 59.) Though conducted as a side-by-side double home, these plaintiffs have been treating the home as a single family residence since well before the subject motor vehicle accident.

(49) Richard Boezi took responsibility for the maintenance of all the vehicles in the household, including his mother’s. (N.T. p. 68.)

(50) Ms. Gaetana Boezi maintained an automobile insurance policy with Erie Insurance Group policy no. ***_*******. (Defendant’s exhibit “1”.)

(51) The policy provides underinsured motorist (UIM) protection coverage for any relative. The policy defines “relative” as “a resident of your household who is a person related to you by blood, marriage or adoption.” The policy defines a “resident” as a “person who physically lives with you in your household.” (Defendant’s exhibit “1”.)

(52) The petitioners, Richard Boezi and Lorie Boezi, are competent adult individuals.

(53) The policyholder, Gaetana Boezi, is likewise a competent adult individual.

(54) The respondent, Erie Insurance Exchange, is a business entity duly authorized in the Commonwealth of Pennsylvania to issue insurance policies and, in particular, insurance policies under the Pennsylvania Motor Vehicle Financial Responsibility Law.

(5 5) At all times relevant hereto, the petitioner, Gaetana Boezi, maintained a policy of insurance with the Erie Insurance Exchange.

(56) The applicable policy period for the automobile insurance policy, policy no. *********** is November 28, 2001 to November 28, 2002.

(57) At all times relevant hereto, this automobile insurance policy provided insurance coverage to the named insured, Gaetana Boezi, for her automobile, a 2000 Chrysler Cirrus, vehicle identification no. ***************** copy of the policy declaration sheet is attached as exhibit “A” to respondent’s proposed findings of fact.

(58) At all times relevant hereto, the aforementioned insurance policy provided for underinsured motorist coverage in the amount of $100,000 per person/$300,000 per accident without stacking being considered.

(59) The petitioners, Richard Boezi and Lorie Boezi, have submitted an underinsured motorist claim under the insurance policy of Gaetana Boezi.

(60) The petitioners, Richard Boezi and Lorie Boezi, are asserting that Richard Boezi was injured in an automobile accident which occurred on July 25,2002, within the relevant policy coverage period.

(61) Under the terms of the Uninsured/Underinsured Motorist Coverage endorsement, Endorsement AFPU01(ED.4-94), the policy identifies the individuals covered by the insurance policy. The insurance policy states under the section identified as OTHERS WE PROTECT the individuals who are insured. In subsection 1, OTHERS WE PROTECT, the term “relative” is identified as a protected person.

(62) The term “relative” is defined under the terms of the main insurance policy. The policy sets forth that a relative is “relative means a resident of your household who is:

“(1) A person related to you by blood, marriage or adoption or
“(2) A ward or any other person under 21 years old in your care.”

(63) The term resident is also defined under the terms of the policy. The term resident is defined as follows:

“ ‘Resident’ means a person who physically lives with you in your household. Your unmarried, unemancipated children under 24 years of age attending school full-time living away from home will be considered residents of your household.”

(64) The respondent, Erie Insurance Group/Erie Insurance Exchange specifically denied in its answer to motion for appointment of defense neutral arbitrators that the petitioner, Richard Boezi, was a resident of the household of Gaetana Boezi.

(65) It is acknowledged that Richard Boezi is the son of Gaetana Boezi and therefore, related by blood as defined under the terms of the policy. However, the Erie Insurance Exchange has denied that the petitioner, Richard Boezi, lived in the same household as the policyholder, Gaetana Boezi.

(66) In March of 1992, Richard Boezi and Gaetana Boezi purchased a property located at 733-735 Taylor Avenue in Scranton, Pennsylvania. (Hearing transcript p. 6,1. 12.)

(67) At the time Richard Boezi and Gaetana Boezi purchased the premises located at 733-735 Taylor Avenue, it consisted of two distinct housing units. (Hearing transcript p. 6,1. 16.)

(68) At the time Richard Boezi and Gaetana Boezi purchased this premises, they intended to maintain two separate units in this building. (Hearing transcript p. 6, 1. 16.)

(69) Richard Boezi and Gaetana Boezi intended to renovate the 733 side of the building and maintain it as a distinct and separate unit. (Hearing transcript p. 7,11.19, 23.)

(70) At all times relevant hereto, the 733 residential unit and the 735 residential unit have maintained separate utilities. (Hearing transcript p. 8,1. 15.)

(71) At all times relevant to this proceeding, the parties have wanted to maintain the 733 residential unit and the 735 residential unit as two separate units in terms of its original construction configuration, but with modifications as their family circumstances changed. (Hearing transcript p. 59,11. 1-3.)

(72) In 1993, Lorie Boezi married Richard Boezi. At that time they moved into the 733 residential unit. (Hearing transcript p. 9,11. 10-17.)

(73) A door on the second floor was installed in the premises during renovation. This space had previously been left open. (Hearing transcript p. 11,11. 9-12.)

(74) The 733 residential unit has one bathroom. The 735 residential unit has one bathroom. They would seem to be shared as needed. (Hearing transcript p. 12,1. 25; p. 13,1. 1.)

(75) Access to the attic from the 735 side of the unit was blocked by construction directed or conducted by Richard Boezi. (Hearing transcript p. 13,11. 20-25.)

(76) Each residential unit in the structure has a separate kitchen which is folly equipped. (Hearing transcript p. 13,11. 20-24.)

(77) The residential units have separate living rooms. (Hearing transcript p. 14,11. 1-2, exhibit 8.)

(78) Richard Boezi and Gaetana Boezi share equally the mortgage bill. (Hearing transcript pp. 18-19.)

(79) Richard Boezi and Gaetana Boezi share equally the payment of real estate taxes. (Hearing transcript pp. 18-19.)

(80) Richard Boezi and Gaetana Boezi share equally the insurance expenses on these two residential units. (Hearing transcript pp. 18-19.)

(81) Gaetana Boezi has a separate gas bill and has a separate gas meter for the 735 residential unit. (Hearing transcript p. 31,11. 10-14.)

(82) Gaetana Boezi has a separate utility meter for water for the 735 residential unit, which she alone pays for the water bill. (Hearing transcript p. 31,11. 20-25.)

(83) The 735 residential unit inhabited by Gaetana Boezi has a separate sewer meter and receives a separate sewer bill which she pays. (Hearing transcript p. 32,11.4-8.)

(84) Gaetana Boezi has a separate telephone for the 735 residential unit. (Hearing transcript p. 31,11. 15-19.)

(85) Gaetana Boezi maintains her driver’s license and vehicle registration at an address designated as 735 Taylor Avenue in Scranton. (Hearing transcript p. 23,11. 17-19.)

(86) Gaetana Boezi maintains a separate living room in the 735 residential unit. She purchased the furniture in this unit and exclusively chose the manner in which the room would be decorated. (Hearing transcript p. 25, 11. 15-20; p. 26,11. 8-10.)

(87) Gaetana Boezi maintains a residence for federal, state and local income tax purposes which is not 733 Taylor Avenue in Scranton. (Hearing transcript pp. 36-38.)

(88) Gaetana Boezi, at all times relevant hereto, has maintained her bedroom and slept exclusively in the 735 residential unit. (Hearing transcript p. 43,11. 7-14.)

(89) Richard Boezi has maintained a separate bedroom with his wife, Lorie Boezi, in the 733 residential unit. (Hearing transcript p. 44,11. 2-6.)

(90) Gaetana Boezi maintains a separate checking account to pay her personal bills including charge cards and other personal expenses. This would be the case even with children living at home or away at school, and is an observation of dubious value in determining residential status or where a person “physically lives.” (Hearing transcript p. 41,11. 7-16.)

(91) Gaetana Boezi completed a policy information sheet. A copy of this sheet is attached to respondent’s proposed findings of fact as exhibit “B.” This sheet was personally completed by Gaetana Boezi in 1997. (Hearing transcript p. 33,1. 11 through p. 34,1. 8.)

(92) The policy information sheet indicated that there was only one driver, Gaetana Boezi, in the household. (Deposition transcript pp. 33-34.)

(93) Gaetana Boezi indicated on this form that there was only one vehicle in the household. (Hearing transcript p. 35,11. 20-25.)

(94) The policy information sheet completed by Gaetana Boezi, with the assistance of her insurance agent, indicated there was only one resident in the household which was herself. (Hearing transcript pp. 34-35.)

(95) At all times relevant hereto, the structure located at 733-735 Taylor Avenue contained two residential units.

(96) Gaetana Boezi ate her breakfast meal in the 735 residential unit kitchen each morning.

(97) Gaetana Boezi prepared one meal a week which was prepared on her side of the structure on Sundays, although she took many other meals in the 733 residential kitchen during a typical week.

(98) Gaetana Boezi ate dinner meals with Richard Boezi and certain of his family members in the 733 residential unit during weekdays. These meals were prepared by Lorie Boezi in the kitchen in the 733 residential unit.

(99) At all times relevant hereto, the premises at 733-735 Taylor Avenue maintained two separate and distinct residential units but only from a construction configuration standpoint. In use, the two residences blended into one.

(100) Richard Boezi completed a plaintiff’s address form on a civil cover sheet filed in the Court of Common Pleas of Lackawanna County. This civil cover sheet indicates that the plaintiff’s address is 733 Taylor Avenue, Scranton, Pennsylvania.

(101) Richard Boezi identified his residence as 733 Taylor Avenue for his driver’s license and registration. (Hearing transcript pp. 2-9.)

(102) At all times relevant hereto, Richard Boezi had a separate telephone listing for 733 Taylor Avenue. (Hearing transcript p. 65,11. 10-13)

(103) At all times relevant hereto, Richard Boezi identified to his employer, the City of Scranton, that he resided at 733 Taylor Avenue in Scranton. (Hearing transcript p. 67,11. 3-12.)

(104) At all times relevant hereto, Richard Boezi prepared state, federal and local income tax documents which indicated his address was 733 Taylor Avenue. (Hearing transcript p. 64,11. 1-6.)

IV. DISCUSSION OF APPLICABLE LAW

Construction of the term “resident” in an insurance policy is a matter of law. Nationwide Mutual Insurance Co. v. Budd-Baldwin, 947 F.2d 1098, 1100 (3d Cir. 1991).

In addition, the question of residency is not an issue of intention, but one of physical fact and presence. Arnica Mutual Insurance Co. v. Donegal Mutual Insurance Co., 376 Pa. Super. 109, 545 A.2d 343 (1988). See also, Schultz v. Encompass Insurance, 204 WL 2075114 (E.D. Pa. 2004).

We agree with counsel that there are no cases interpreting the exact language used in the instant Erie policy, namely, where resident is defined as where a person “physically lives.” However, as indicated, several cases discussing the same issue provide guidance.

The term “physically” is defined as having material existence or relating to material things. Webster’s Collegiate Dictionary 935 (11th edition 2003).

“A person lives where they ‘occupy a home.’ Webster’s Collegiate Dictionary 974 (7th edition 1973). [T]o regularly live somewhere means to occupy that particular home at fixed intervals. When we combine the die-tionaiy definition with the facts of everyday life, it is clear that to occupy a home means to be able to call that place one’s own, claim it as a place where one has a right to be. The word ‘home’ itself connotes a place where one belongs and can always go with certainty that [s]he will be taken in. It connotes not only a physical place, i.e., the place where one eats meals, sleeps, socializes and generally spends time when not ‘otherwise engaged with the activities of life,’ but a sense of belonging.” Nationwide Mutual Insurance Co. v. Buddy-Baldwin, 947 F.2d 1098, 1100 (3d Cir. 1991). (emphasis added)

Moreover, in the instant policy, a “resident” is defined as “a person who physically lives with the insured in the insured’s household, and a household is defined as a family living together.” See Donegal Mutual Insurance Co. v. State Farm Mutual Automobile Insurance Co., 377 Pa. Super. 171, 179, 546 A.2d 1212, 1215-16 (1988), citing Black’s Law Dictionary, 666 (5th edition 1979). The term “household” is generally synonymous with family for insurance purposes, and includes those who dwell together as a family under the same roof. Id.

V. ANALYSIS

When you look at the totality of the circumstances and apply the principles cited above, especially the physical makeup of the living arrangement creating a “sense of belonging,” (see Nationwide Mutual Insurance Company v. Budd-Baldwin, supra), we agree with the petitioners that Richard Boezi and Gaetana Boezi were residents of the same household. Together, Richard and Gaetana Boezi purchased the structure referred to as 733-735 Taylor Avenue in 1992. As it existed, the structure was a side-by-sid.e double home. At the time of purchase, they intended to live together in the 735 side which was in good condition. Mr. Boezi proceeded with renovation of the 733 side with the intent of using it for rental income. In the interim, Mr. Boezi married in 1993. After the marriage, his wife, Lorie Boezi and her three children, ages 7 and 3 came to live with Richard and his mother at the residence.

The structure consists of four stories on each side separated by a common wall. Access exists on three floors to allow the family to use the structure as a single home. A doorway allowing free access exists in the basement and another on the second floor. The basement doorway preexisted the Boezi’s possession of the home, however, Mr. Boezi had to clear the area to permit use of the doorway. The family used the doorway in the basement frequently. At the time the Boezis moved into the residence, a deck extended off of the first floor kitchen on the 735 side. After moving in, Mr. Boezi constructed a deck off of the 733 side and connected it to the deck existing on the 735 side, thereby allowing access on the first floor between the two sides of the home via the deck. Mr. Boezi created a doorway between the two sides on the second floor to allow the family easy access to the bedrooms, offices and two bathrooms at that level. Effectively, 733 and 735 are physically connected on three of the four levels, basement, first floor and second floor. In the attic or fourth floor where there is no connection, there also is no living space, but only storage space.

Gaetana Boezi and Richard Boezi testified that both sides of the home were used by the family as a single home and that family members used both sides of the residence for storage of personal belongings, exercise, play, recreation, sleeping, eating and bathroom facilities.

The contents of the home at the time of the subject accident belonged primarily to Gaetana Boezi and Mrs. Lorie Boezi.

We conclude that testimony clearly established that the seven people residing in the residence in fact dwelled as a single family living together. Further, they altered the home to achieve that purpose. The family had meals together on a nightly basis which were prepared by Lorie Boezi on weeknights and by Gaetana Boezi on Sunday evenings. All adults shared equally in child care responsibilities. Richard Boezi acted as the family head in that he was solely responsible for decisions concerning maintenance, repair and upkeep of the home. Lorie Boezi and Gaetana Boezi shared house cleaning responsibilities, each performing work in all areas of the residence. Additionally, both women were responsible for the family’s laundry. Many evenings were spent together viewing television or simply spending time together as a family. There was no restriction on access by any family members to any portion of the home. Each member of the family, including Gaetana and Richard Boezi, has a sense of belonging in the entire home, and with each other. Each thought of the entire home as a place where they had a right to be, and each was certain that they would be taken in.

We are mindful of the fact that Richard and Gaetana Boezi maintained separate mailing addresses and separate utilities. However, Mr. Boezi testified that the utilities were not combined to single meters because it was cost prohibitive and would impede the future sale of the premises as a double, two-family building. This is most logical and believable. Further, while the majority of Gaetana Boezi’s mail came to 733 Taylor Avenue she also received mail addressed to 735 Taylor Avenue or 733-735 Taylor Avenue as evidenced by the tax bill, joint bank account statements and insurance documents referred to at the hearing in this matter and identified as plaintiffs’ exhibits 2 through 5. Further, Mr. Boezi testified that he occasionally paid a utility bill for the 735 side in addition to the 733 bill.

We agree that the testimony clearly establishes that, once Mr. Boezi married, he, his wife and mother decided to live as a family in the residence. We are further mindful that the original construction of the property was intended to house two separate families. The only alteration of the structure that the Boezis did not make to combine the structure into a single unit was to demolish the common wall because it would be structurally impossible as it is weight bearing. Similarly, they did not purchase a traditional single family property because they were already in possession of a home large enough to accommodate all seven family members. Based on a totality of the physical circumstances, the credibility of the witnesses, the credible evidence and the guidelines of the legal authorities set forth above, we conclude that Richard Boezi was a resident relative of Gaetana Boezi’s household on July 25, 2002, and therefore is entitled to underinsured motorist coverage under Erie Insurance Group policy no. ***_*******

An appropriate order will follow.

ORDER

And now to wit, February 10,2005, after due consideration of the testimony elicited at the hearing of September 28, 2004, the able written submissions of counsel, and in accordance with the foregoing memorandum, it is hereby ordered and decreed that:

(1) Richard Boezi was a resident relative of Gaetana Boezi’s household on July 25, 2002, and, therefore, is entitled to underinsured motorist coverage under Erie Insurance Group policy no. ***_*******

(2) The parties are directed to conduct an underinsured motorist arbitration hearing in this matter.

(3) The court directs respondent to submit its arbitrator within 10 days of this order, time being of the essence. If the respondent arbitrator is not chosen or respondent arbitrator cannot agree on a neutral, the court will appoint all necessary persons to comply with this order.

(4) The parties are to proceed in a manner consistent with the foregoing.

      . All references are to transcript and exhibits submitted at the September 28, 2004 hearing.

      . On July 25, 2002, petitioner, Richard Boezi, was injured while operating a motor vehicle which is insured for underinsured motorist protection by the respondent. Unless otherwise specified, all findings of fact pertain to July 25, 2002, the date of the accident.