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KATHERINE FALLARO v. MARIE YEAGER BUCKS COUNTY CHILDREN AND YOUTH SOCIAL SERVICES AGENCY (07/01/87)

filed: July 1, 1987.

KATHERINE FALLARO, APPELLANT,
v.
MARIE YEAGER BUCKS COUNTY CHILDREN AND YOUTH SOCIAL SERVICES AGENCY



Appeal from the Order entered in the Court of Common Pleas of Philadelphia County, Family Division, No. 81-19590.

COUNSEL

William A. Meehan, Jr., Haverford, for appellant.

Paul W. Rauer, Philadelphia, for appellee.

Andrew F. Schneider, Schneider and Goldblum, Langhorne, for amicus curiae Bucks County Children and Youth Social Services Agency.

Cavanaugh, Brosky and Tamilia, JJ.

Author: Tamilia

[ 364 Pa. Super. Page 409]

This appeal is from an Order directing the Bucks County Children and Youth Agency to take custody of Robert and Michael Rennie, for dispositional purposes, so that a foster home can be found for the children in Bristol, Pennsylvania.

[ 364 Pa. Super. Page 410]

A summary of the facts as found by the lower court indicates that Marie Yeager is the natural mother of the boys, aged seven and five. Katherine Fallaro is the aunt by marriage of Ms. Yaeger.

The boys have lived in the Fallaro home for most of their lives. Initially, Ms. Yeager also lived at the home, but in February of 1984 she moved, along with her sons, to live with Mark Ercolani, who is now her husband. Sometime in June, 1984, the boys were again living with the Fallaro's, the circumstances of their return being in dispute.

On June 29, 1984, Mrs. Fallaro filed a petition for confirmation of custody and on July 5, 1985, Ms. Yeager filed a petition for custody. The petitions were consolidated and temporary custody was granted to Mrs. Fallaro pending a full hearing. Following two hearings, Mrs. Fallaro was granted temporary custody and Ms. Yeager given visitation rights. An investigation of Yeager's home was also ordered.

Mrs. Fallaro, on May 21, 1985, filed an emergency petition alleging Mr. Ercolani had sexually abused the children and requesting the visitation rights be vacated. The visitation rights were subsequently suspended pending a hearing, but Yeager was permitted to visit the children at the Fallaro home in the presence of Mrs. Fallaro.

On June 6, 1985, Ms. Yeager filed a petition for contempt and an emergency petition for reconsideration of the temporary Order. A hearing was scheduled, but the parties failed to appear. The matter was subsequently assigned to the judge whose Order is presently at issue and, after numerous continuances, a hearing was held May 15, 1986. An Order was then entered granting Fallaro and Yeager shared legal custody and providing that the boys would continue living with Fallaro, the mother to have unlimited visitation. The court notes in its Opinion that this Order was entered with a view toward reuniting the boys with their mother.

Ms. Yeager filed a petition for contempt on June 11, 1986 alleging Mrs. Fallaro interfered with her visitation rights.

[ 364 Pa. Super. Page 411]

Following a hearing on July 10, 1986, the court found Mrs. Fallaro to be in contempt of the May 15, 1986 Order. An Order was entered specifying Ms. Yeager's rights of visitation and requiring that a third adult be present if they were in the company of Mr. Ercolani. This Order was to be reviewed in sixty days.

A review hearing was conducted on September 10, 1986 following which the court made findings of fact and issued an Order. In the findings of fact, the court stated:

5. Mrs. Fallaro is an inappropriate caretaker for the children because she has demonstrated a longstanding and fixed hositility towards the mother and a preference for the father. This atmosphere is detrimental to the welfare of the children.

6. At this time Mrs. Ercolani [Yeager] is an inappropriate caretaker. Further investigation may prove that she can be an appropriate caretaker.

8. The children are dependent. They are now living on welfare. Their natural father has never supported them, although he is financially able to do so.

9. It is in the best interests of the children that they be placed with a caretaker who is not involved in the disputes between mother and father.

10. Because the mother, who seeks custody of the children and who has been denied visitation by Mrs. Fallaro on her own initiative and in contempt of the orders of this Court, is a resident of Bristol, Pennsylvania, it is in the best interests of the children that they reside in Bristol, Pennsylvania where the mother can have frequent visitation . . . .

Findings of Fact, Forer, J., 9/10/86.

The accompanying Order, which is the subject of the present appeal, provided:

[ 364 Pa. Super. Page 412]

ORDER

The Bucks County Children and Youth Agency is directed to take custody of the children for dispositional purposes in order that an appropriate foster home can be found for the children in Bristol, Pennsylvania. The Bucks County Children and Youth Agency is directed to arrange for placement of the children and to schedule a hearing as soon as possible.

The Philadelphia Sheriff's Office is Ordered to transport the children to Bucks County to be present at the hearing. Counsel, Mr. Meehan and Mr. Rauer, will be notified and see to it that the children are made available.

Order, Forer, J., 9/10/86.

An appeal to the above Order was taken by Mrs. Fallaro and an Amicus Curiae brief filed by the Bucks County Children and Youth Social Services Agency.*fn1

The amicus curiae brief raises the issue of whether it was proper for the court to make a finding of dependency in a case brought before it on the issue of custody. We think the court's action in making such a determination was improper and the Order must be vacated. This conclusion is based on a reading of the statutes involved and a concern for the violation of rights which would occur if such a practice is permitted.

The present matter was before the lower court on cross-petitions for custody. There was no petition for dependency filed, and yet the court, sua sponte, made such a determination. This Court, in In Interest of M.B., 356 Pa. Super. 257, 514 A.2d 599 (1986), disapproved of a lower court making a dependency determination when a petition was filed under the Child Protection Services Law, 11 P.S. § 2201 et seq. In that case, the Court found the allegation of abuse to be unfounded but determined that the child was a dependent under the Juvenile Act, 42 Pa.C.S.A. §§ 6301-6365. As the Court stated in M.B.:

[ 364 Pa. Super. Page 413]

Courts cannot rule on matters not before them. It is, of course, the pleadings which limit the court's agenda. 'The pleadings determine the issues in any given case.' Anflick v. Gruhler, 353 Pa. 470, 472, 46 A.2d 161, 162 (1946). '[A] plaintiff cannot file a complaint which avers one cause of action, and be permitted, on the trial, to prove a different cause of action.' Smith v. County of Allegheny, 397 Pa. 404, 406, 155 A.2d 615, 616 (1959).

The rationale for this rule goes well beyond Nineteenth Century hypertechnical pleading requirements.

The general rule requiring conformity between the allegata and probata is intended to avoid the injuries that would result by confronting a defendant at trial with proof of a cause of action of which he was not put on notice and which he is not prepared to defend.

Computer Print Systems, Inc. v. Lewis, 281 Pa. Super. 240, 248, 422 A.2d 148, 152 (1980).

Due process requires that the litigants receive notice of the issues before the court and an opportunity to present their case in relation to those issues. It is even more eggregious an error when the lack of notice, through variance from the pleadings, is the court's doing. For when the issue is first stated only in the court's resolution of it, the unsuspecting party has no ...


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