author: AMMERMAN, J.,

text:
    Clark v. Boal
    C.P. of Clearfield County,
    no. 95-862-C.D.

      Michael J. Saglimben, for plaintiffs.

      Timothy E. Durant, for defendant.
    July 18, 1997
   AMMERMAN, J.,

— The above-captioned matter came before this, court for hearing relative to issues pertaining to the custody of August Lynn Boal (d.o.b. 08/23/92). Hearings had previously been held on July 19, August 17, and September 26, 1995 regarding the issue of plaintiffs’ standing to seek primary custody. By opinion and order dated January 24, 1996, this court determined that plaintiffs, who are third parties unrelated to the child, stood in loco parentis to August and did indeed have standing to proceed. Testimony regarding the issue of primary custody was taken on October 2 and October 4, 1996, as well as on February 19, February 20, February 26, and February 28, 1997, and thereafter the parties timely submitted briefs.

Initially, this court’s decision in this case must involve consideration of the standard to be applied in deciding a custody dispute between third parties and a natural parent. In 1980, the Pennsylvania Supreme Court articulated the standard in favor of a natural parent’s prima facie right to custody in disputes between parents and third parties. Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980). The court’s decision in Ellerbe was, in part, based upon the rule discussed in the Superior Court’s prior decision of In re Custody of Hernandez, 249 Pa. Super. 274, 376 A.2d 648 (1977) which decision initially discussed the standard to be applied in custody disputes between parents and third parties. However, in 1995, the Pennsylvania Supreme Court departed from the presumption in favor of natural parents in the plurality decision of Rowles v. Rowles, 542 Pa. 443, 668 A.2d 126 (1995). In Rowles, the natural mother and father had two very young children and were living with the father’s parents. Two months after the birth of the second child, mother and father moved out of the grandparents’ home, leaving the children in the care of the grandparents. A year and a half later, pursuant to divorce proceedings, mother and father named the grandparents as guardians of the children and granted them primary physical custody; the two children continued to live with, and were raised by, the grandparents. Six months later, the mother petitioned the lower court for the children to be returned to her and to be given custody. The lower court ruled in favor of the grandparents and on appeal the Superior Court affirmed the lower court’s decision. Three years after the original petition was filed by mother, the Pennsylvania Supreme Court reversed and awarded custody of the children to the mother. Adopting the rationale as set forth in the concurring opinion of Ellerbe, authored by Justice Flaherty, the Rowles court abandoned the presumption that a natural parent has a prima facie right to custody as against third parties, and instead followed the rule as stated in the concurring opinion of Ellerbe as follows:

“By clearly eliminating the presumption [in favor of a natural parent] per se, and mandating that custody be determined by a preponderance of evidence, weighing parenthood as a strong factor for consideration, custody proceedings would be disentangled from the burden of applying a presumption that merely beclouds the ultimate concern in these cases: determination of what affiliation will best serve the child’s interests, including physical, emotional, intellectual, moral, and spiritual well-being.” Id. at 373-74, 416 A.2d at 517. (emphasis in original)

The first reported appellate case to cite Rowles was Campbell v. Campbell, 448 Pa. Super. 640, 672 A.2d 835 (1996) filed March 11, 1996. This York County case involved the paternal grandparents and the mother of two children ages 9 and 7 who had been voluntarily placed by the mother in the custody of the grandparents on many occasions. Father is an alcoholic on disability who rarely saw the children. Eventually the grandparents obtained partial and then full custody. This appeal before the Superior Court involved the issue of standing of the grandparents rather than the proper standard to be applied in deciding a custody dispute between parents and third parties. Standing was affirmed. In Campbell, by Justice Hester, supra at 643, 672 A.2d at 836, two of the panel members indicate that Rowles changed the standard of proof between parents and third parties. Justice Cavanaugh did not join in the reasoning but only concurred in the result.

The second reported appellate case to reference Rowles was Mollander v. Chiodo, 450 Pa. Super. 247, 675 A.2d 753 (1996) filed May 8, 1996. This McKean County case involved the prospective adoptive parents challenging. an award of primary custody of a child to the natural'mother following her revocation of consent to adopt. The mother, at the age of 17 years, had left her 3-month-old daughter with the adoptive parents for 11 months after which she filed a petition to dismiss adoption proceedings and regain custody. Twenty-two months later the trial court returned custody of the then 3-year-old child to the mother, and the Superior Court by a unanimous panel affirmed. The Superior Court determined, that while the prospective adoptive parents had standing as they had achieved “in loco parentis” status, the trial court’s award of custody to the mother would be affirmed. The trial court evidenced considerable concern about the now 20-year-old mother’s lack of maturity and lack of employment skills but found her to be motivated by love, care and concern for her child. The trial court also noted that mother had provided a clean and safe place for the child to live and that upon visits and observations by the social worker, the mother’s parenting seemed appropriate and the child seemed to be safe and comfortable in the mother’s care. The trial court also noted that there were support services available to assist the mother in her child care.

In Mollander, supra at 251 n.1, 675 A.2d at 755 n.1, the Superior Court panel opined that, while they were “not bound to follow the plurality decision in Rowles,” even changing the applicable standard to that as set forth in Rowles would not change the result in the case. The Superior Court reaffirmed the viability of the principles contained in Ellerbe and In re Custody of Hernandez.

The third reported appellate case to cite Rowles was Gancas v. Schultz, 453 Pa. Super. 324, 683 A.2d 1207 (1996) filed August 20, 1996. This Allegheny County case involved the filing of a petition by former husband to prevent ex-spouse from relocating with their child to New Jersey. The trial court awarded custody to father, and mother appealed. The Superior Court reversed and remanded. This relocation case with a per curiam opinion merely cites Rowles for the proposition that “[a] custody determination requires a process of comparing and weighing the relevant facts of the competing custodial environments.” Gancas, supra at 337, 683 A.2d at 1213. One of the items the court found dispositive in the reversal was that the trial court failed to weigh, inter alia, the following item:

“For example, Mother contends that the trial court failed to consider that absent compelling reasons to the contrary, it is the policy of this Commonwealth to raise siblings together whenever possible. Pilon v. Pilon, 342 Pa. Super. 52, 492 A.2d 59 (1985). Moreover, this policy applies equally to half-siblings. Wiskoski v. Wiskoski, 427 Pa. Super. 531, 629 A.2d 996 (1993), citing In re Davis, 502 Pa. 110, 465 A.2d 614 (1983). Thus, Mother contends the trial court failed to consider that Elizabeth had developed a close relationship with her brother, Brandon. Mother presented evidence of this close relationship at trial.” Id. at 337-38, 683 A.2d at 1213.

The final reported appellate case to cite Rowles is J.A.L. v. E.P.H., 453 Pa. Super. 78, 682 A.2d 1314 (1996) filed on September 19, 1996. This Philadelphia County case involved standing in a custody dispute between a natural mother and her former lesbian partner as to a 3 1/2-year-old child. The trial court denied standing to the partner, and the three judge panel of the Superior Court reversed and remanded. In this opinion by Justice Beck, the following is stated regarding the evidentiary burden of third parties:

“We note that in Rowles v. Rowles, 542 Pa. 443, 668 A.2d 126 (1995), the Pennsylvania Supreme Court reexamined the appropriate standard of proof in custody disputes between a parent and a non-parent. The opinion announcing the judgment of the court sought to abandon the presumption in favor of the parent in such cases, instead treating parenthood as a significant, although not paramount, factor in determining custody. Id. at 446-48, 668 A.2d at 128. That view, however, failed to command a majority of the court, and as a result, Ellerbe, supra, which recognized the presumption, remains the law of this Commonwealth. See Mollander v. Chiodo, 450 Pa. Super. 247, 250 n.1, 675 A.2d 753, 755 n.1 (1996). Dictum by this court in Campbell, supra, suggesting that Rowles changed the standard of proof in such cases is not binding upon this court or the trial courts. Moreover, even if the position espoused by the lead opinion in Rowles becomes law, the more flexible standard employed in that case would still grant some special protection to the parent in custody disputes with non-parents.” Id. at 88 n.2, 682 A.2d at 1319 n.2.

Following this court’s review of these applicable cases, it is this court’s conclusion that the standard as set forth in the majority opinion of Ellerbe is still the law in Pennsylvania, and that the Supreme Court’s plurality decision in Rowles did not overrule Ellerbe. The presumption in favor of the natural parent in custody disputes with third parties remains the law of this Commonwealth, and will be utilized in this case. The plaintiffs therefore bear the burden of production and persuasion, and their burden to show they should receive primary custody is heavy.

This court also reviewed several other cases, all decided before the Supreme Court’s decision in Rowles, where custody was granted to the third party over the natural parent. See Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980)—custody dispute between father and maternal grandparents following mother’s death. The 9- and 14-year-old boys had each resided with the grandparents for many years and strongly desired to remain; Cardamone v. Elshoff, 442 Pa. Super. 263, 659 A.2d 575 (1995)—custody dispute between maternal aunt and mother involving 15-year-old daughter. Aunt awarded custody where daughter strongly preferred living with aunt, and mother had history of homelessness, drug addiction and alcoholism (decided five months prior to Rowles); Vicky N. v. Josephine N., 437 Pa. Super. 166, 649 A.2d 709 (1994)—maternal aunt had child since mother abandoned her at hospital following child’s birth for placement in foster care or adoption. Mother’s health was declining due to cancer, mother had an alcohol problem and history of violent physical confrontations with father when they drank too much; and Snarski v. Krincek, 372 Pa. Super. 58, 538 A.2d 1348 (1988)—maternal grandparents awarded custody of 8-year-old boy against father where mother was deceased. The child had lived with grandparents for six and one-half years of his eight years; father not able to provide any stability for son; father not involved in child’s upbringing; father had abandoned his second son (to deceased mother) who was in custody of father’s now divorced second wife.

Moving to the facts of this particular case, it must be noted that this matter is the most unusual custody dispute which has yet come before this court.

Plaintiffs are third parties who are unrelated by blood or marriage to the child or either defendant. As reflected in this court’s opinion of January 24, 1996, plaintiff Mrs. Alice J. Clark and her daughter Betsy Clark began their contact with August as daytime babysitters of not only August but defendant Cathy J. Boal’s other children. Without reiterating matters previously described in the above noted opinion, over a period of time the babysitting by Mrs. Clark and Betsy steadily increased until it reached seven days per week, day and night. This court had already found that Mother “for the most part abandoned August over time to the care of Mr. and Mrs. Clark and their daughter . . . .” Opinion of January 24, 1996, p. 5. As a result of numerous temporary orders entered in this case, August has continued to reside in the primary custody of the plaintiffs, with Mother being afforded liberal rights of partial custody.

This court has had an extremely difficult time in reaching what it believes to be an appropriate decision in this case, given the current status of the law and an analysis of all factors involved. This includes an evaluation on a long-term basis of what is in the best interest of August versus the rights afforded to Mother with whom August’s siblings reside. As set forth herein, Mother as a natural parent is afforded a presumption of a prima facie right to custody of her own child. Mother’s other three children, Codey Cole (d.o.b. 04/29/96), Leo Coder Jr. (d.o.b. 08/17/94) and Bobbi Sue Boal (d.o.b. 01/28/91) all reside with Mother and are August’s siblings or half-siblings. As previously noted in the case of Pilon v. Pilon, supra, the appellate courts of our Commonwealth grant significant protection to the relationship of siblings, and it is the policy of this Commonwealth not to split up children absent compelling reasons. This is normally referred to as the Family Unity Doctrine. There is also evidence in this case that August enjoys a good relationship with Mother’s other children, particularly with Bobbi Sue, who is close to her age. The extent of this relationship was not only testified to by Mother and her relatives, but also confirmed by the employees of Clearfield County Children, Youth and Family Services who observed August interacting with her siblings during supervised visits at the CYFS office. Therefore, when analyzing the evidence in this case, there are two factors highly favorable to Mother. They are the presumption in her favor as the natural mother and that there must be a compelling reason to separate August from her sister and two half brothers.

There is no question in this case but that the plaintiffs’ daughter, Betsy, plays a major role in regard to the plaintiffs’ request for primary physical custody of August. At the time of the original filing of the action, Betsy had not reached the age of 18. If she had been of majority age at that time, there is little doubt in this court’s mind that she would have been a plaintiff with her parents, or would have been the sole plaintiff. Generally speaking, it is clear that Mrs. Clark and Betsy were placed by Mother in the position of primary caretakers for August and over time formed a strong bond, deep affection and love for the child. Clearly, Mr. and Mrs. Clark and Betsy now believe that they are better able and suited to care, and provide a more appropriate upbringing, for August. This court must agree with that position. However, the question is whether this fact outweighs the factors in favor of Mother.

From the eight total days of hearings held before the court (three days on the issue of standing and five days on the issue of custody), there is no doubt but that the plaintiffs are better suited to provide for August. If the sole inquiry in this case involved this court making a determination of what party would best serve the child’s physical, emotional, intellectual, moral and spiritual well-being, as per a custody dispute between natural parents, physical custody would be awarded to the plaintiffs. Testimony showed that the plaintiffs and their daughter Betsy have provided a stable and healthy environment for August. Their home is clean and August has her own bedroom, clothing and toys; activities and appropriate medical and dental care have been provided. Without question the Clarks and their daughter love August very much and are very attached to her. Dr. Allen Ryen, licensed child psychologist, indicated that Mr. Clark and Alice have an “excellent rapport with August, probably constituting a primary parental bond.” Plaintiffs exhibit “3.” Plaintiffs are without doubt better able to facilitate a religious upbringing and training for August. See Stolarick v. Novak, 401 Pa. Super. 171, 584 A.2d 1034 (1991). The court notes that the testimony of Cathy Boal’s mother, Leita Harris, relative she and Mother going to church was not credible. The testimony has also shown that the plaintiffs’ family is more levelheaded, less subject to strife and less liable to use foul language in front of children. This was confirmed by the independent testimony of Robert Desmitt as well as from other witnesses throughout the long course of proceedings.

In regard to Mother, the court must agree with the plaintiffs’ position that since June 1995 the defendant and her children have changed residences on no fewer than five separate occasions, thereby showing a less than desirable level of stability in this regard. This is so even taking into account the grease fire at the Edge-wood apartment (caused by the misguided efforts of Mother and her paramour to prepare popcorn in a pan of hot grease) and the alleged difficulties with the boiler at the Mahaffey apartment. The court also noted Mother’s extremely poor judgment in allowing August, and her other female child, to be in the unsupervised company of Aaron Straw, Mother’s relative who was adjudicated delinquent on an indecent assault offense against Mother’s sister’s 8-year-old daughter. It seemed extremely odd to this court that no one associated with the defendant, i.e., her extended family, seemed to show or have any concern whatsoever regarding this sexual offense against a juvenile on the part of Mr. Straw. It would seem to the court that at the very least, Mother and her family would require some level of supervision of Mr. Straw’s contact with the minor female children, at least for some period of time and/or until Mr. Straw successfully completed some course of counseling. Mother’s attempt during her testimony to minimize Mr. Straw’s prior contact with her children was not only transparent but conflicted with that of her other witnesses.

Mother’s propensity for less than normal personal stability and judgment was confirmed by Dr. Ryen’s analysis. Plaintiffs’ exhibit “2.” Dr. Ryen found Mother’s nurturant and emphatic skills to be minimal and seriously questioned her ability to appropriately react to stress, amongst other factors. These judgment difficulties can further be evidenced by Mother allowing her fiance’s sister, Robin Padgett, to baby-sit her children. As observed by this court, Ms. Padgett clearly was not completely competent and Mother herself admitted that Ms. Padgett had some mental problems and was “not completely there.” The court also believes that Mother’s judgment can be questioned in allowing the entire family to previously stay overnight on at least two occasions (possibly more) with Ms. Padgett at the Fulton Street apartment. This apartment had two bedrooms, a living room and kitchen with Ms. Padgett, her boyfriend and two children, Mother, James Cole III, Bobbi Sue, August, Codey and Leo Jr. all staying overnight. Even with Mr. Cole working the night shift at Wal-Mart, clearly any sleeping arrangement based on these circumstances is undesirable.

Mother’s current apartment on Merrill Street also leaves much to be desired, with only two bedrooms being available for August, three other children and Mother and Mr. Cole. Although the testimony by Mother was that August (during periods of Mother’s partial custody) shares a bedroom with Bobbi Sue and that Mother and Mr. Cole sleep in the living room, this arrangement can be contrasted with that at the plaintiffs’ home where August has her own bedroom.

Notwithstanding the evidence showing that the plaintiffs are better suited to care for August and provide for her emotional, intellectual, moral and spiritual well-being, the evidence also showed that Mother is able to meet minimum standards in caring, and providing an appropriate residence, for her children. Testimony of Tom Flango, caseworker for CYFS, described his dealings with Mother over a period of approximately one year from May 1993. During that time, Mother’s residence met CYFS’s required standards and the children living with Mother were cared for in an adequate manner. This was also confirmed at a later date through the testimony of CYFS’s caseworker, Chet Thompson, who had been at Mother’s apartment on four or five occasions and had also observed Mother’s visits with August at the agency’s office. Therefore, this court cannot find that Mother is incapable of providing an environment and level of care for her children which meet minimal standards as required by the Department of Public Welfare under the Child Protective Services Laws, 23 Pa.C.S. §6301 et seq., and regulations relating thereto. Testimony showed that Mother has not had her children taken from her through any dependency actions notwithstanding CYFS’s dealing with her over a period of time commencing when her daughter Tara Boal was killed in a pedestrian/automobile accident on May 3, 1993.

Mother and her witnesses went to great lengths during the hearings in regard to the question of standing to deny that she had abandoned August with the Clarks. Even though the court indicated in its previous opinion that this testimony was not found to be credible, Mother has continued to take the same position during hearings on the issue of primary physical custody. The continuation of an argument that the court previously found to be without credibility does not particularly serve Mother’s interests in this case. This court notes the possibility exists that the escalation of Mother’s leaving August in the care of the Clarks was facilitated at least in part by her mental status following the death of her daughter Tara in the automobile accident. It was in approximately April/May 1993 that August began sleeping overnight on weekends at the Clarks’. August’s contact with the Clarks continued to increase, and in approximately July 1993 it had reached the point where August was staying with the Clarks seven days per week. The testimony of Mr. Flango was clear regarding the emotional difficulties that Mother went through following Tara’s death, and that Mother’s treatment was facilitated by Mr. Flango’s efforts. Apparently, Mother sought some type of counseling which helped her to deal with Tara’s death and enabled her to appropriately (at her low level) deal with her responsibilities and children. An analogy can be made to the factual scenario in Rowles, where the Supreme Court found that the natural mother acted responsibly in leaving the children with the paternal grandparents during the period of her instability. Mother has not taken this position, obviously because she does not want to admit that she allowed the plaintiffs to assume the care of August.

At this point, it would be appropriate for this court to note its continuing problem with the general credibility of Mother and many of her witnesses. Mother’s responses to cross-examination exhibited her attempts at selective memory and she, and many of the defense witnesses, in many instances suffer from the same lack of credibility as this court found following the hearings on plaintiffs’ standing. On the other hand, the court found the plaintiffs and their witnesses to be reliable and does not question their credibility. This court has taken these credibility issues into account when fashioning this opinion.

The court also notes the continuing arguments by Mother that the plaintiffs have consistently denied additional periods of partial custody to Mother over and above what this court has ordered. Mother thereby argues she, as a primary custodial parent, is best suited to facilitate periods of partial custody of August with the plaintiffs. 23 Pa.C.S. §5303(a). See Moore v. Moore, 393 Pa. Super. 256, 574 A.2d 105 (1990). This court does not so find, and under the circumstances of this unusual case would expect nothing less than what has obviously occurred: feelings are very negative on the part of both sides against the other. This court therefore finds that neither party can be said to be better able to facilitate partial custody with the other.

Having made a determination as to the facts of the case as shown by the evidence, this court must now apply the applicable law thereto. When considering the presumption giving Mother a prima facie right to custody of her own child, coupled with the heavy burden of proof thereby placed upon the third-party plaintiffs to show Mother’s unfitness, and the evidence that Mother meets minimal standards mandated by the Department of Public Welfare, this court must return custody of August to her Mother, Cathy J. Boal. It is a consideration of this court in reaching this decision that August be reunited with her sister and half brothers. It is noted that in the event this case involved a custody dispute between natural parents, the level of instability and poor judgment on the part of Mother would be enough for this court to find a compelling reason to separate the child from the siblings and award custody to a stable natural father. However, that is not the case before the court.

The court also notes that Mother’s level of instability as shown by the evidence in this case is not as extreme as that set forth regarding the natural parents in the other cases reviewed in this opinion where third parties obtained custody. In addition, the child in this case had not been initially left by Mother with the third party for a multiple-year period, nor has the child reached an age where the child’s strong desire to remain with the third party could be taken into account. Although the functional abilities and judgment of Mother have been significantly questioned by the court, the fact remains that she is able to meet minimal levels as required by law, and care for August’s siblings.

As a final comment, the court notes that the decision in this case was extremely close. Unlike the decision in Mollander, supra, in the event that this court were applying the significant factor analysis as set forth in Rowles, the result would be changed and this court would be awarding primary physical custody of August to the plaintiffs.

ORDER

Now, July 18, 1997, it is the order of this court as follows:

(1) Legal and primary physical custody of August Boal shall be with her natural mother, Cathy J. Boal. Possession of the child shall be provided to Mother by the plaintiffs on Friday, August 1, 1997 no later than 6 p.m.

(2) The plaintiffs, Alice J. Clark and Roy D. Clark, shall have the following rights of partial custody with August:

(a) On alternating weekends from Friday at 4 p.m. and continuing until Sunday at 6 p.m. plaintiffs’ first alternating weekend period of partial custody will commence as of Friday, August 8, 1997;

(b) Each Tuesday and Thursday evening, commencing with Tuesday, August 5, 1997, from 4 p.m. until 8 p.m.;

(c) Plaintiffs and Cathy J. Boal will alternate custody/partial custody of the following holidays: Labor Day, Thanksgiving Day, New Year’s Day, Easter, Memorial Day and July 4th, as well as the child’s birthday. Plaintiffs’ alternating holiday partial custody will commence with Thanksgiving 1997. For each alternating holiday as set forth herein the plaintiffs shall have partial custody of August from 10 a.m. continuing until 7 p.m. In the event that any of the above holidays to which the plaintiffs are entitled to a period of partial custody fall on a Monday immediately preceding a period of the plaintiffs’ alternating weekend partial custody, in that event the plaintiffs shall be entitled to retain the child over Sunday night and shall return the child to the custody of Mother no later than 7 p.m. on said Monday holiday;

(d) For purposes of Christmas of each year, the parties will alternate custody/partial custody of the child. Beginning with Christmas of 1997, the plaintiffs shall have the child from 10 a.m. until 7 p.m. on Christmas Day. For Christmas 1998, the plaintiffs shall have the child Christmas Eve (December 24) beginning at 4 p.m. and continuing until 10 a.m. on Christmas Day. Plaintiffs’ periods of Christmas partial custody shall alternate thereafter based upon the same terms and conditions as set forth above.

(e) Any period of holiday custody/partial custody as set forth herein shall take precedence over any other period of plaintiffs’ partial custody or Mother’s custody;

(f) The party who is to obtain the child shall be responsible for transportation;

(g) Plaintiffs shall also be entitled to a total of two separate two week periods of partial custody with the child during the summer months of June, July and August, beginning with summer 1998. Unless otherwise agreed by the parties, the plaintiffs’ two separate periods of partial custody as aforesaid shall each commence on a Saturday at noon continuing until the second Saturday thereafter at noon. There shall be a minimum of two weeks between each two week period of partial custody as described herein. Plaintiffs shall give Mother notice, in writing, as to when they intend to exercise each of the said two periods of two weeks summer partial custody at least 15 days in advance of each of same.

(3) Neither party shall, nor shall they allow anyone else to, smoke any tobacco products in the presence of the child. In the presence of the child is defined as anywhere within any home, residence or apartment where the child resides or is located or in any automobile of any type whatsoever in which the child is located or being transported.

(4) The natural mother shall not permit the child to be in the unsupervised presence of Aaron Straw at any time. Mother or some other responsible adult is required to be in the presence of the child at any time that Mr. Straw is around the child.

(5) Under absolutely no circumstances will Mother permit August to be babysat, watched or supervised at any time by Robin Padgett. August, even while in the company of Mother, shall not be permitted to stay overnight at Robin Padgett’s residence.

(6) Mother shall ensure that the child has her own bed in a bedroom which is not to be shared by more than August and one other of her siblings, although the court notes it would be preferable if the child had her own bedroom.

(7) Mother shall at all times keep the plaintiffs advised as to her address and telephone number. In the event Mother intends to move to a new residence at any time, she will advise the plaintiffs, in writing, of the same in advance and as to her new address and telephone number.

(8) Mother shall not relocate outside of the Commonwealth of Pennsylvania without this court’s permission.

      . The child’s natural father, defendant Robert Boal, has never appeared before this court and played no role in these proceedings.


source: Caselaw Access Project

author: QUIGLEY, P.J.,

license: Public Domain

text:
    Brown v. Sheriff of Perry County

      C.P. of Perry County,
    no. 97-654.

      L. Rex Bickley, for plaintiff.

      Allan W. Holman Jr., for defendant.
    July 11, 1997
   QUIGLEY, P.J.,

— This case deals with an application by Richard A. Brown, styled “action in mandamus,” wherein Mr. Brown requests judicial review of the decision of the sheriff to deny a protection permit.

The statute involved in this situation is entitled “Pennsylvania Uniform Firearms Act of 1995,” Act of June 13, 1995, First Special Session, PL. 1024 no. 17. (18 Pa.C.S. §6101 et seq.)

Petitioner suggests that he was denied a permit because he was “convicted of a crime punishable by imprisonment for a term exceeding one year ....” Section 6109(e)(viii). Apparently, there is no dispute as to the status of the applicant’s record.

The applicant, however, suggests that the definition of “crime punishable by imprisonment exceeding one year” is in fact a term that is defined under section 6102 of the Act and that a fair reading of said definition section indicates that he should not be precluded as a result of his conviction.

The definition of “crime punishable by imprisonment exceeding one year” does not apply to state offenses classified as misdemeanors and punishable by “a term of imprisonment not to exceed two years,” according to the statute. See 75 Pa.C.S. §6102.

Thus, while the sheriff apparently acted based on his interpretation of the literal provisions of section 6109(e)(8), it certainly can be argued that the definition of a “term exceeding one year” in fact does not mean what it says, but rather means “a term of imprisonment not to exceed two years.” This is clearly an ambiguity if not an outright conflict and the question might be which interpretation should prevail.

The Constitution of the United States with respect to Amendment no. 2 provides for the right of citizens to keep and bear arms. In addition, the Firearms Act in Pennsylvania basically indicates that the sheriff should issue the requested permit except in certain enumerated situations. It is the belief of this court that it is an inherent right of our citizens to keep and bear arms, and that, while the government may infringe upon that right, it may only do so under appropriate circumstances; it should then only do so in clear and unambiguous terms.

Because the definition section in the Act appears to be quite clear to this court and because the exclusion section, subsection 8, does not indicate in terms similar to “not withstanding the definition in the definition,” we think the ambiguity must, as a matter of common sense and perhaps constitutional law, inure in favor of the applicant.

Accordingly, it appears that the request of Mr. Brown in this matter to reverse the action of the Perry County Sheriff is appropriate, assuming that Mr. Brown meets all other criteria as set forth in the Act.

Thus, we will order the sheriff to issue the requested permit.

ORDER

And now, July 11, 1997, it is directed that the appeal of Richard A. Brown in this matter be sustained and that the Sheriff of Perry County not withhold a permit from Mr. Brown under the provisions of subsection 8 of section 6102(e).


author: McANDREWS, /.,

text:
    Greer v. Prudential Property & Casualty Insurance Co.

      C.P. of Bucks County,
    no. 96-09067-20-6.

      David S. Berman, for plaintiffs.

      Howard Wishnoff, for defendant.
    May 27, 1997
   McANDREWS, /.,

— -The matter comes before the court under Bucks County Rule of Civil Procedure *266, upon petition to vacate the underinsured motorist arbitration award by defendant Prudential Property and Casualty Insurance Company. Plaintiff has submitted a cross-petition to confirm the arbitration award, which is also before the court. Oral argument on the petitions was held on April 29, 1997, before the undersigned.

On April 30, 1993, plaintiff Jason Greer, “Son,” was involved in an automobile accident. At the time, Son operated his own uninsured vehicle. Son suffered personal injuries in the accident, for which he received compensation from the tort-feasor.

Subsequently, Son sought underinsured motorist, “UIM,” benefits. Son’s father, Paul Greer, had an automobile liability policy with Prudential. Son resided with Father. On this basis, Son sought UIM benefits through Prudential.

Prudential’s policy stated that Prudential would provide coverage for UIM purposes as follows:

“WHO IS INSURED (PART 5)

“IN YOUR CAR (INCLUDES A SUBSTITUTE CAR)

“You and a resident relative are insured while using your car or a substitute car covered under this part.

“IN A NON-OWNED CAR

“You and a resident relative are insured while using a non-owned car. The owner must give permission to use it. It must be used in the way intended by the owner. . . .

“LOSSES WE WILL NOT PAY FOR (PART 5) . . .

“REGULARLY USED NON-OWNED CARS

“We will not pay for bodily injury to you or a household resident using a non-owned car not insured under this part, regularly used by you or a household resident.” Id. at exhibit A, part 5, pp. 6-7.

The policy defined “non-owned car” in another section:

“A non-owned car is a car which is not owned or registered in the name of or furnished or available for the regular or frequent use of you or a household resident.” Id. at part 1, p. 2.

Prudential denied Son’s right to UIM benefits. Prudential agreed that Son was a “resident relative.” However, Prudential contended that Son’s own uninsured vehicle did not qualify as “a non-owned car” under the terms of the policy.

The parties submitted the dispute to arbitration, as called for in the policy. An arbitration panel of three was selected. On October 13, 1995, and June 27, 1995, hearings before the arbitration panel were held. On November 15,1996, the panel issued an award in favor of plaintiff in the amount of $45,000. The panel stated:

“The panel finds that Prudential’s policy language defines an ‘insured,’ for UM/UIM purposes, to include only those occupying ‘non-owned’ cars as defined by the policy is void, absent an express exclusion of uninsured owner operators.” (Petition of defendant Prudential to vacate the underinsured motorist arbitration award, at exhibit E.)

It is this decision which the parties now ask the court to either vacate or confirm.

Initially, the court notes that the matter is properly before this court for review. Under Pennsylvania law, underinsured motorist arbitration awards may be reviewed under very limited circumstances. It must be shown that: (1) a party was denied a hearing; (2) fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award; or (3) the claimant attacks a particular provision of the insurance policy itself as being contrary to a constitutional, legislative, or administrative mandate, or against public policy or unconscionable.” See Azpell v. Old Republic Insurance Co., 526 Pa. 179, 183, 584 A.2d 950, 952 (1991).

The arbitration award at issue falls squarely within the last of the three categories set forth above.

First, the panel’s decision clearly “attacks a particular provision of the insurance policy itself.” See Azpell, supra. The panel declared Prudential’s policy language “void.” The word “void” is defined as: null; ineffectual; nugatory; having no legal force or binding effect; unable, in law, to support the purpose for which it was intended. Black’s Law Dictionary, 1573 (6th ed. 1990). Thus, the decision that the provision of an insurance agreement was void clearly goes to the heart of Prudential’s UIM provision.

Second, the panel’s decision declared the policy void “absent an express exclusion of uninsured owner operators.” If the panel’s decision had hinged upon a constitutional, legislative or administrative authority, citations would have been necessary. Because no citations were supplied, this court can only conclude that the panel declared the limitation void because it was contrary to some general “public policy.” Id. Thus, this court has authority to review the panel’s decision.

Additionally, it is clear to this court upon review that the arbitration panel’s decision should be vacated. Under Pennsylvania law, “a clear and unambiguous contract provision must be given its plain meaning, unless to do so would be contrary to a clearly expressed public policy.” Windrim v. Nationwide Insurance Co., 537 Pa. 129, 135, 641 A.2d 1154, 1157 (1994) (citing Antanovich v. Allstate Insurance Co., 507 Pa. 68, 76, 488 A.2d 571, 575 (1985)). Further, only when a provision of an insurance policy is so obviously against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, may a court “constitute itself the voice of the community” and declare the policy void. Paylor v. Harford Insurance Co., 536 Pa. 583, 587, 640 A.2d 1234, 1235 (1994) (quoting Mamlin v. Genoe, 340 Pa. 320, 325, 17 A.2d 407, 409 (1941)).

From 1977 to 1984, motor vehicle coverage in the Commonwealth of Pennsylvania was regulated under the No-Fault Motor Vehicle Insurance Act. See 40 Pa.C.S. §1009. The public policy underlying the NMVIA favored recovery of insurance benefits by uninsured motorists. See Windrim, supra at 133, 641 A.2d at 1156 (discussing Bankes v. State Farm Mutual Automobile Insurance Co., 216 Pa. Super. 162, 264 A.2d 197 (1970)). To this end, the law “ensured [that] owners/operators of uninsured vehicles [would] receive uninsured motorist benefits.” Id. at 132-33, 641 A.2d at 1156 (citing Windrim v. Nationwide Mutual Insurance Co., 412 Pa. Super. 155, 159-60, 602 A.2d 1356, 1358 (1992)). In fact, in the course of drafting the NMVIA, the Pennsylvania Legislature had “specifically rejected a proposal to include a statutory household exclusion provision.” Nationwide Mutual Insurance Co. v. Hampton, 935 F.2d 578, 588 (3d Cir. 1991).

In 1984, the NMVIA was replaced by the Motor Vehicle Financial Responsibility Law. See 75 Pa.C.S. §1731. The Supreme Court of Pennsylvania stated in Pay lor:

“The repeal of the No-Fault Act and the enactment of the MVFRL reflected a legislative concern for the spiraling consumer cost of automobile insurance and the resultant increase in the number of uninsured motorists driving on public highways. The legislative concern for the increasing cost of insurance is the public policy that is to be advanced by statutory interpretation of the MVFRL. This reflects the General Assembly’s departure from the principle of ‘maximum feasible restoration’ embodied in the now defunct No-Fault Act.” Id. at 587, 640 A.2d at 1235.

The new “statutory scheme indicate[d] that private uninsured and underinsured benefits [were to be] treated separately from basic liability benefits.” Id. at 518. Thus, the MVFRL “embodie[d] a new public policy... against recovery of insurance benefits by owners of uninsured vehicles.” Id.

In applying the public policy mandate of the MVFRL, Pennsylvania courts have repeatedly found that exclusions from UIM coverage limitations of non-owned uninsured vehicles are valid and enforceable. See e.g., Windrim, supra at 136, 641 A.2d at 1158. In Windrim, an individual operating his own uninsured vehicle at the time of the accident sought UIM benefits under his mother’s policy. Id. at 131, 641 A.2d at 1155. Coverage was denied because the policy stated that UIM coverage would be excluded where “bodily injury [was] suffered while occupying or from being hit by a motor vehicle owned by you or a relative living in your household, but not insured for uninsured or underinsured motorists coverage under this policy.” Id. The dispute went to arbitration. The panel determined that public policy precluded the enforcement of the exclusion. Both the Court of Common Pleas, Philadelphia County, and the Superior Court affirmed the arbitration award. On appeal, however, the Supreme Court reversed. The Supreme Court found the exclusion to be clear and unambiguous and went on to hold that:

“[T]he exclusion in Windrim’s mother’s insurance policy is a valid and enforceable provision. Our conclusion is bolstered by the fact that Windrim’s argument, if accepted, would actually contravene the legislative intent behind the MVFRL by serving as a disincentive to insure vehicles. As Judge Popovich observed, ‘[a] possible result ... is that many individuals owning several vehicles will purchase coverage for only one of them. Likewise, relatives living with an insured will be less inclined to purchase insurance for their vehicles, instead seeking uninsured motorist coverage under their relative’s insurance policy.’ . . . Clearly, the General Assembly did not envision nor intend such abuses of the system when it enacted the MVFRL.” Id. at 136, 641 A.2d at 1158 (quoting Windrim, 412 Pa. Super. at 162, 602 A.2d at 1360 (Popovich, J., dissenting)), (citation omitted)

This court finds the Supreme Court’s holding in Windrim, supra, to be dispositive. Under the MVFRL, Pennsylvania law now disfavors the liberal recovery of insurance benefits by owners of uninsured vehicles. Prudential’s policy provision unambiguously limited UIM coverage of non-owned vehicles to those that were regularly used by the insured or a resident relative of the insured. Thus, the limitation is not contrary to the public policy of this Commonwealth.

Further, to interpret the provision as appellee requests would directly contradict the public policy mandate of the MVFRL. Son asks this court to construe Prudential’s policy to allow payment of UIM benefits when Son was driving his own uninsured vehicle at the time of the accident. Such an interpretation would only serve as a disincentive toward the purchase of insurance, in cases where persons reside with a relative who has already purchased automobile insurance coverage of their own vehicles. This court cannot condone behavior that so clearly violates the legislative intent underlying the MVFRL.

For all the above-stated reasons, the court enters the attached order, vacating the arbitration panel award.

ORDER

And now, May 27, 1997, upon consideration of defendant’s petition to vacate the underinsured motorist arbitration award, plaintiffs’ new matter/cross-petition to confirm the arbitration award, the answers thereto, and the memorandum of law supplied thereupon, it is hereby ordered and directed that defendant’s petition to vacate the underinsured motorist arbitration award is granted. It is also ordered and directed that plaintiffs’ new matter/cross-petition to confirm the arbitration award is denied.