Justices Gather in Pittsburgh for First Argument Session of Fall

Arguments in a custody dispute pitting a mother against her son’s paternal grandparents will also be heard on Monday.

The Superior Court in K.B. II v. C.B.F, PICS Case No. 03-1502 (Pa. Super. Sept. 25, 2003) Todd, J. (21 pages), interpreted a recent Supreme Court decision to hold that grandparents automatically have standing to seek physical and legal custody of their grandchildren regardless of the child’s dependency status or whether a parent has been deemed unfit.

In granting allocatur in the case, the high court limited the issue on appeal to whether grandparents have standing under Section 5313(b) of the Custody and Grandparents Visitation Act to pursue custody of a grandchild “absent a finding that the child is substantially at risk, or that the parent is unfit, or that the child is dependent.”

The Superior Court had ruled that an Armstrong County trial judge abused his discretion by taking an 8-year-old from his mother, an exotic dancer, and saying that his grandparents could provide a more stable and nurturing lifestyle.

The court also said, somewhat reluctantly, that in light of the Supreme Court’s ruling in R.M. v. Baxter, 777 A.2d 446 (Pa. 2001), a case where parental rights were terminated, grandparents automatically have standing to seek physical and legal custody of their grandchildren.

In a footnote of the opinion, written by Judge Debra M. Todd, the court questioned whether the Supreme Court’s opinion in R.M. should apply where a parent is fit.

“Although we are bound to follow our Supreme Court’s explicit holding in R.M., we nevertheless question whether application of the court’s broad holding is equally justified in a case such as the one before us, where there has been no finding of unfitness by the court on the part of the parent,” Todd wrote.

The justices will hear the mother’s appeal in this case fourth on the docket Monday.

Lisa Marie Vari of Lisa Marie Vari & Associates in Pittsburgh is the attorney for C.B.F., the mother; James L. Liberto of New Kensington represents K.B. and B.B., the grandparents; and Alberta Rae Beardsley of Kittanning is listed as counsel for K.B. II, the father.

DPW’s Jurisdiction

Also on the docket Monday is a case that asks whether a dispute between the Pennsylvania Department of Public Welfare and a provider of medical assistance to DPW clients may fall within the subject matter jurisdiction of the state Board of Claims.

In Department of Public Welfare v. Presbyterian Medical Center of Oakmont, PICS Case No. 03-0750 (Pa. Commw. May 15, 2003) McGinley, J.; Leavitt, J., dissenting (16 pages), a 5-2 en banc panel of the Commonwealth Court held that the DPW, rather than the Board of Claims, had jurisdiction in this dispute because the provider’s claims derived from DPW regulations and not from a contract.

In so ruling, the majority relied on its decision in Department of Public Welfare v. River Street Associates, 798 A.2d 260 (Pa. Commw. 2001), which found the board of claims did not have subject matter jurisdiction over a nursing home facility’s claim that DPW breached its contract when it set its peer group prices and payment rates.

Writing for the majority, Judge Bernard L. McGinley said the River Street court based its decision on the fact that the dispute focused on the meaning and interpretation of DPW guidelines.

“Here, as in River Street, [Presbyterian Medical Center of Oakmont] challenges DPW’s application of its regulations arguing it made erroneous audit adjustments and therefore failed to make certain payments to Oakmont,” McGinley wrote.

“Oakmont’s claim does not sound in contract. To determine whether the board of claims has jurisdiction the focus must be on the nature of the underlying claims and not the mere existence of a contractual relationship between the parties.” The two-judge dissent, however, argued that the provider agreement in this case creates a contractual relationship between DPW and medical and nursing providers.

The justices also split 5-2 in granting allocatur in the appeal. The majority limited the appeal to whether “the claims below sounded in contract and were within the subject matter jurisdiction of the Board of Claims, including its jurisdiction over implied or quasi-contract matters, for all periods at issue.” Justices Thomas G. Saylor and J. Michael Eakin, however, said in a dissent that they would have preferred the court look at the broader jurisdictional issue, particularly in light of the decision in River Street, which the justices declined to hear on appeal.

The case is slated third on the argument list Monday.

Louis J. Capozzi of Capozzi & Associates in Harrisburg is representing Oakmont. Jason W. Manne is the DPW’s attorney.

Open Meeting