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MICHAEL H. HAUPT, I IN THE COURT OF COMMON PLEAS or
plaintiff I CUMBERLAND COUNTY, PENNSYLVANIA
I
v. I NO. 94-4068 CIVIL TERM
I
KATHLEEN M. GILDERSLEEVE, I
Detendant
NOTICE OF HEARING BY BOARD OF ARBITRATORS
You are hereby notitied that the Board of Arbitrators
appointed by the Court in the above captioned case will sit tor
the purpose of their appointment at the Seoond Floor Hearing
Room, Old Cumberland County Courthouse, Carlisle, Pennsylvania,
on Tuesday, April 4, 1995 at 1:30 p.m.
William A. Addams, Esquire
Andrew C. Sheely, Eaquire
Rebecca R. Hughes, Esquire
By:
~
W 11 am A. Addams, C
Board of Arbitrators
DATE I January 11, 1995
TO: Hubert X. Gilroy, Esquire
Broujos, Gilroy & Houston, P.C.
4 North Hanover street
CarliSle, PA 17013
Deborah A. Cavacini, Esquire
Caldwell & Kearns
3631 North Front Street
HarriSburg, PA 17110
Court Administrator
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MICHABL H. HAUPT, I IN THB COURT Of COMMON PLEAS OF
Plaintiff I CUMBBRLANDCOUNTY, PENNSYLVANIA
I
v I NO. 94- CIVIL TERM
I
KATHLEEN M. GILDBRSLBBVB, I
Defendant I
CONPLIUIT
AND NOW, Plaintiff, Michael H. Haupt, by his attorneys, Broujos,
Gilroy & Houston, P.C., sets forth the following:
1
Plaintiff is Michael H. Haupt, an adult individual residing at 1210
Sherwood Drive, Carlisle, Cumberland County, Pennsylvania.
2
Defendant is Kathleen M. Gildersleeve, an adult individual residing
at 71 East North Street, Carlisle, Cumberland County, Pennsylvania.
3
The facts and occurrences hereinafter related took place on
Saturday, March 26, 1994, in the Borough of Carlisle, Cumberland
County, Pennsylvania.
4
At said time and place, Plaintiff was driving his 1990 Plymouth
automobile in an easterly direction along Willow Street.
5
At said time and place, Defendant was driving her automobile in a
southerly direction on Pitt Street.
6
At eaid time Gnd plaoe and at the inteneotion of Willow street and
Pitt Street, Defendant drove her vehiole into the intereeotion of
willow Street and Pitt Street direotly in front of Plaintiff' e
vehiole, thereby caueing a colli8ion between Plaintiff'8 vehicle
and Defendant'. vehiole.
7
Ae a reeul t of said colli8ion between Plaintiff'. vehicle and
Defendant. 8 vehicle, Plaintiff incurred property damage to hh
vehicle in the amount of $1,328 and plaintiff alBo will incur a
reaeonable rental value for a rental car during the time
Plaintiff'8 vehicle will be repaired, which rental charge. will
amount to $100.
8
The collision in que8tion was the 80le and direct caU8e of the
negligence of the Defendant as folloW81
A. Defendant failed to yield the right of way to Plaintiff.
B. Defendant pulled her vehicle from an intereection in a
reckleee and negligent manner.
C. Defendant failed to 8tOp and did not check the eaetbound lane
at the blinking red light which required Defendant to 8top at that
intereection and yield to oncoming traffic.
D. Defendant failed to uee caution in proceeding through eaid
intereection in that Defendant failed to obeerve Pleintiff' e
vehiole coming from the Weet.
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CHARLES W. DELL, SR.,
PLAINTIFF
V.
GERALD STRAINING and
NANCY STRAINING,
DEFENDANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
94.5861 CIVIL TERM
IN RE: CUSTODY
ORDER OF COURT
AND NOW, this '2"'" day of February, 1995, IT IS ORDERED:
(1) Physical custody of Trlcla Y. Dell, born June 16, 1962, and Charles W.
Dell, Jr., born December 19, 1983, shall remain with their maternal grandparents,
Gerald Stralnlng and Nancy Stralnlng.
(2) Trlcla and Charles together shall spend four continuous weeks In the
temporary physical custody of their father, Charles W. Dell, Sr., during the summer of
each year. The timing of those weeks shall be arranged by the father and the
grandparents before the school vacation period begins. It shall start not be later than
three weeks after the children finish school each year.
(3) Each year, the father shall have temporary physical custody of Tricla and
Charles from 3:00 p.m. on Dec9mber 25, through noon on December 30.
(4) All transportation for the periods of temporary physical custody with the
father as set forth In paragraphs 2 and 3, shall be provided by the maternal
grandparents.
(5) At any other times the children are In the Cumberland County area the
grandparents shall allow them to see their father.
(6) If the father visits In Decatur, illinois, when the children are not attending
.chool, the grandparents shall allow him to have temporary physical custody In that
area during such visits.
(7) The grandparents shall ensure that Trlcla and Charles phone their father at
least once each week. The grandparents shall not prevent the father from talking to
the children when he calls them.
James J. Kayer, Esquire
For Plaintiff _ C'rf~ ~<.cl ,',)1~llqs.
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Herschel Lock, Esquire
For Oefendants
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CHARLES W. DELL, SR.,
PLAINTIFF
V.
GERALD STRAINING and
NANCY SiRAINING,
DEFENDANTS
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
94.5861 CIVIL TERM
IN RE: CUSTODY
QPINION AND ORDER OF COURT
BAYLEY, J., February 21, 1995:--
This Is a custody case Involving Trlcla Y. Dell, born June 16, 1982, who Is In
seventh grade, and Charles W. Dell, Jr., born December 19, 1983, who Is In fifth
grade. The dispute Is between Charles W. Dell, Sr., age 31, the father, and the
maternal grandparents, Gerald Straining and Nancy Straining, both age 47. The
father and the mother, Lena M. Dell, were married In 1982. The mother Is deceased.
The father, a high school graduate, Is a painter making approximately $25,000
per year. He has worked for Local 411 of the Painters Union for seven years. He
rents a two bedroom town house In a residential section of Enola where he lives with
Sharon Myers, age 28. Sharon Myers has never been married. She has lived with
the father for five years. She is a clerk for the Commonwealth of Pennsylvania
making approximately $24,000 a year. She has known Trlcla and Charles since they
were born. She testified that she and the father plan to marry.
Gerald and Nancy Straining have three other children. Robert, age 20, Jerry,
age 25, and James, age 13. Nancy Straining Is a homemaker. Gerald Straining has
worked for PPG Industries, Inc., since 1972. He was a process controller In PPG's
94-5861 CIVIL TERM
plant In Mount Holly Springs. In September, 1994, he was offered a promotion to a
supervisory position as process foreman at a PPG plant In Decatur, illinois. The
promotion Involved an Immediate $200 per month Increase In pay with good
Incentives for the future. He took the job In October, 1994, and now makes
approximately $42,000 a year. The Stralnlngs purchased a four bedroom home In a
residential neighborhood outside of Decatur where they now live with their son
James, age 13, and Trlcla and Charles. Decatur Is an eleven hour drive from Enola.
All three children attend a school that Is about ten minutes away by bus. The
Decatur area Is much like the Mechanlcsburg area, where the Stralnlngs had lived.
The school systems are also similar. The families of all of the parties live in this area.
After their marriage In 1982, the father and mother lived with the Stralnlngs for
about six months. The father then entered the military and the mother and Trlcla
stayed with the Stralnlngs. Shortly after Charles was born In December, 1983, the
father, mother and two children moved to Washington State where he was stationed.
After about a month and one-half in Washington, the mother separated and returned
with the two children to the home of the Stralnings which was then In Shermans Dale,
Perry County. She stayed there for about a month and one-half. Between 1984 and
1987 she lived on and off at her parents' home with the children. The father was
discharged from the military In 1984, and returned to this area. Between 1984 and
1987, he saw Trlcla and Charles, although not for extended periods. The parties
were divorced In 1985.
-2-
94.5861 CIVIL TERM
In the spring of 1967, the mother lIent Charles to live with the father because
she was unable to continue to care for both of the children, The father returned
Charles to her a short time later saying that he could not take care of him, The
,
mother and father and the Stralnlngs then entered Into a consent custody order In
Perry County on May 6, 1987, whereby "permanent primary custody" of Charles was
granted to the maternal grandparents "subject to such periods of temporary custody
In the child's parents. , . as the parties agree," The father continued to see both of
his children, although not on an extended basis. The mother was murdered on
September 20, 1990. Trlcla discovered the body. She received counseling with a
psychologist who recommended, for stability, that both children live with their
maternal grandparents. On September 28, 1990, the father and the Stralnlngs
entered Into another consent order in Perry County providing that "primary custody'
of Trlcla was granted to her maternal grandparents "subject to such periods of
temporary custody in the child's father. . . as the parties agree."
Since that order was entered, the father has been seeing Trlcla and Charles on
alternate Saturdays for eight hours, and for dinner each Monday at the home of the
paternal grandparents. On most of those occasions the father has stayed with the
children, although there have been times when he has done other things while the
children were with their paternal grandparents. The Monday dinners have regularly
Included the father's two sisters, and the three children of one of those sisters. Trlcla
and Charles have a strong relationship with their paternal grandparents. Charles, and
.3.
94.15861 CIVIL TERM
to a lesser extent Trlcla, have also gone to activities at a church with one of their
paternal aunts on most Wednesday evenings for about a year. That aunt has taken
the children on summer vacations at the beach for up to five days as well as other
day trips and activities In this area. Trlcla In particular has a close relationship with
one of her three cousins who are the children of that aunt.
The grandfather testified that he learned In September, 1994, of the possibility
of a promotion to the Decatur PPG plant. He was not willing to move without taking
Trlcla and Charles with him. He talked to the father about It, and asked him If there
was any problem with his moving with Trlcla and Charles. The grandfather testified
that the father Initially said that he would not oppose Trlcla going with him but that he
wanted Charles to stay. The grandfather rejected that suggestion after which the
father said he would not object to both children moving If the grandparents dropped
their support order against him.' The father told him that he wanted a notarized
letter to that effect, and the grandfather obtained one. The grandfather flied the letter
In the Domestic Relations Office, but before formal action was taken, the father
notified the grandfather that he had changed his mind. The grandfather then notified
the support office not to drop the support order. By that time however, based on
1. As of December 27,1994, the father was $1,415 In arrears on a $40 a week
support order. His last payment was on August 17, 1994. The father testified that
the grandfather told him that he would drop the support case If the father paid all
arrearages up to the time the mother died. The father stated that he pald all of those
arrearages, but then was told by the grandfather that the grandmother would not
agree to drop the support order. The father, nevertheless, stopped paying.
.4.
94-15861 CIVIL TERM
what the father had provlously told him, the grandfather had made a commitment to
PPG to move.
The father then Instituted this custody action and an emergency hearing was
held on November 14. The Stralnlngs had already purchased a home In Decatur and
their move there was Imminent. The children were going to school In the
Cumberland Valley School District. A temporary order was entered on November 14
allowing the grandparents to take Trlcla and Charles to Illinois. The grandparents
complied with the order allowing the father to have the children for part of Christmas
Day and all of December 26th through 28th. A hearing on the merits was scheduled
fo,. December 29. It was continued by the parties until January 30.
The father testified that when he learned that the Stralnlngs were planning to
move to illinois with the children, he told the grandfather that he objected. He stated
that the grandfather then offered to drop the support order If he did not object to the
children moving. The father testified that he told the grandfather that he would not
do that. Until he flied this suit, the father never sought additional time with Trlcla or
Charles. The father testified that he does not believe It Is In the best Interest of the
children to be separated from him, and that he objects to having his regular contact
with the children reduced. The father wants this court to award him physical custody
of Trlcla and Charles If the grandparents will not move them back to this area. The
father believes he can take care of the children better now than he could have at the
time their mother died. The father testified that If he is awarded custody, Trlcla will
.5.
94-5861 CIVIL TERM
lleep In the spare bedroom of his apartment, and Charles will sleep on a pull-away
down stairs until he can rent an apartment with separate bedrooms. He testified that
there are many such apartments available. The grandfather testlffed that he does not
know If PPG will allow him to be re-employed In Mount Holly Springs If he quits his
lob In illinois.
There Is little communication between the Stralnlngs and the father. The
Stralnlngs harbor considerable animosity toward him. It Is apparent that they hold
him responsible for the breakup of his marriage to their daughter, and see those
circumstances as having set the stage for the difficulties the mother had later, which
resulted In her untimely death. The grandfather testified that he does not know If the
children love their father although he knows that they love their paternal
grandparents. After hearing all of the evidence and talking with the children, It Is
readily apparent that they do love their father. The grandparents' animosity toward
the father Is clouding their views of the lather's relationship with his children.
However, while the father has developed a good relationship with his children, It Is
not the close parental relationship they have with their grandparents. The evidence
also shows that Sharon Myers has a good relationship with the children. Clearly,
however, both children view the home 01 their grandparents as their home.
Charles is a very "young" eleven-year-old and Tricla Is a more mature twelve-
year-old. Trlcla wants to continue to live with her grandparents and spend some time
with her father during each summer. Charles did not express a strong opinion as to
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94.5861 CIVIL TERM
where he wanted to live. It Is obvious that he does not want to be put Into the middle
of this dispute. The grandfather testified that he has never discouraged the father
from having more time with his children. He stated that If the children wanted to live
with their father he would not be opposed. The father testified he does appreciate
what the grandparents have done for the children. However, he believes part of the
reason the Stralnlngs moved to Illinois Is that they wanted to remove Trlcla and
Charles from having regular contact with him, and to discourage his Involvement with
the children. Both children have made friends in illinois, are doing adequately In
school, and have become Involved in numerous activities. Since all of the family of
the Stralnlngs live In this area, they plan to visit here otten.
The legal principles applicable to a custody proceeding are well-established.
The test Is what Is in the best Interest and welfare of the child. Beer. v. B..r., 342
Pa. Super. 465 (1985). In order for a custodial parent to justify a relocation of a child,
the Superior Court of Pennsylvania In Gruber v. Gruber, 400 Pa. Super. 174 (1990)
has held that, (1) the move must be likely to significantly Improve the quality of life for
the parent and the child; (2) the move must not be motivated simply by a desire to
frustrate the temporary custodial rights of the non-custodial parent or to Impede the
development of a healthy relationship between the child and the non-custodial
parent; and (3) there must be a feasible substitute temporary physical custody
arrangement to Insure a continuing meaningful relationship between the child and the
.7.
94-6861 CIVIL TERM
non-custodial parenti In Plowm8n v. Plowm8n, 409 Pa. Super. 143 (1991), the
Superior Court stated:
While the best Interests of the child are more closely allied with
the Interest and quality of life of the custodial parent, Gruber v. Gruber,
400 Pa,Super, 174, 183, 583 A.2d 434, 438 (1990), this factor must be
balanced against an appreciation of and sensitivity to the mutual Interest
of the child and the non-custodial parent In maintaining as healthy and
loving a relationship as possible, Id. As Judge Beck stated In Gruber:
The task of this court Is to sacrifice the non-custodial parent's
Interest as little as pOSSible In the face of the competing and often
compelling Interest of a custodial parent who seeks a better life In
another geographical location.
Id. In this context, we note that while the custodial parent has the right
to make decisions concerning his or her welfare and the welfare of the
minor children, that parent has a responsibility towards the non-
custodial parent to maintain the relationship between the minor children
and the non-custodial parent.
The temporary order entered on November 14, will not affect our current
disposition, That order was necessitated because the Stralnlngs had purchased a
residence In Illinois and were ready to move because the grandfather had committed
to PPG. We find that he made this commitment at a time when he had been told by
the father that he would not object to the move. Given the history of this case, we
chose not to remove the children from the home of their grandparents until we could
hold a full hearing on the merits. That hearing having now been conducted, we will
review and apply the Gruber factors,
2. Pursuant to the consent custody orders entered In Perry County, the
Stralnlngs have been In loco parentis of Charles since May 6, 1987, and of Trlcla
since September 28, 1990.
.8-
94.5861 CIVIL TERM
Charles and Trlcla have been living with their grandparents for years because
their father failed to assume his parental responsibilities to them, The limited time he
has chosen to spend with them Is substantially less than he would have been entitled
to, even for a parent without physical custody. The father does not currently have a
home with enough physical space for both children, The evidence shows that the
father's concerns about his financial responsibilities to his children have, at times,
taken precedence over what Is In the best Interest and welfare of the children.
The Stralnlngs are young grandparents with a thirteen-year-old son of their
own. Although we do not countenance their short-sightedness for ccntlnulng their
personal hostility toward the father, there Is no credible evidence that they have
sought to limit the father's Involvement with his children. In fact, the evidence Is to
the con~rary. The father's limited time with the children has occurred because he has
chosen to abrogate his parenting responsibilities for his own convenience. The
grandparents, while raising four children of their own, have established a long term
loving and nurturing parental relationship with Trlcla and Charles because their father
and mother did not fulfill their parental responsibilities. Trlcla and Charles are doing
well In that relationship. While not controlling, the strong desire of twelve-year-old
Trlcla to continue to live with her grandparents Is a factor, Jone. v. Stone, 343 Pa.
Super 416 (1985), We would not split custody of these two children. Whltm.yer v,
Whltm.yer, 320 Pa, Super, 372 (1983),
We find that the move to illinois by the grandparents was not made out of a
.9.
94-15861 CIVIL TERM
desire to frustrate the temporary custodial rights of the father or to Impede the
development of a healthy relationship between him and the children, The move was
motlliated by an advancement for the grandfather's career with PPG. While his $200
per month Increase In pay Is not Initially that much, the move to a supervisory
foreman position with good Incentives for the future Is significant. These benefits for
the grandfather's family, Including Trlcla and Charles as well as the thlrteen-year-old
son, are likely to significantly Improve the quality of life for the children. It Is
noteworthy that In addition to the failure of the father to fulfill his responsibility as the
parent for Trlcla and Charles, he has Inappropriately stopped support payments and
Injected financial matters Into his dealings with the grandparents.
We conclude that there Is a sufficiently strong lona term relationship of the
children with the grandparents whereby transferring custody to the father would not
be In the children's best Interest, even though they will be living In Illinois. We are
satisfied that there Is a feasible substitute temporary physical custody arrangement
that will continue a meaningful relationship between Trlcla and Charles and their
father. Actually, our order will provide the father significantly more quality time with
the children then he has chosen to exercise In his limited contact with them before
the grandparents moved, During these periods the good relationship the children
have with their paternal grandparents and other members of the father's family will
undoubtedly continue. Our order balances the Interests and quality of life of the
grandparents, and therefore Trlcla and Charles, with the mutual Interest of fostering a
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84-8881 CIVIL TERM
healthy relationship with their father.
ORD~R OF COURt
AND NOW, this I2.I.~dav of February, 1995, IT IS ORDERED:
(1) Physical custody of Trlcla Y. Dell, born June 16, 1982, and Chart.. W.
Dell, Jr., born December 19, 1983, shall remain with their maternal grandparents,
Gerald Stralnlng and Nancy Straining.
(2) Trlcla and Charles together shall spend four continuous weeks In the
temporarv physical custody of their father, Charles W. Dell, Sr., during the summer of
each year. The timing of those weeks shall be arranged by the father and the
grandparents before the school vacation period begins. It shall start not be later than
three weeks after the children finish school each year.
(3) Each yaar, the father shall have temporarv physical custody of Trlcla and
Charles from 3:00 p.m. on December 25, through noon on December 30.
(4) All transportation for the periods of temporarv physical custody with the
father as set forth in paragraphs 2 and 3, shall be provided by the maternal
grandparents.
(5) At any other times the children are In the Cumberland County area the
grandparents shall allow them to see their father.
(6) If the father visits in Decatur, Illinois, when the children are not attending
school, the grandparents shall allow him to have temporary physical custody In that
area during such visits.
.11.
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94-5861 CIVIL TERM
(7) The grandparents shall ensure that Trlcla and Charles phone their father at
least once each week, The grandparents shall not prevent the father from talking to
the children when he calls them.
James J. Kayer, Esquire
For Plaintiff
Herschel Lock, Esquire
For Defendants
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