310 F.2d 179
LOCAL NO. 2 OF the OPERATIVE PLASTERERS AND CEMENT MASONS INTERNATIONAL ASSOCIATION, etc., et al., Appellants,v.PARAMOUNT PLASTERING, INC., et al., Appellees.
No. 17572.
United States Court of Appeals Ninth Circuit.
November 7, 1962.

Brundage, Neyhart, Grodin & Miller, Eugene Miller and Charles Hackler, Los Angeles, Cal., for appellants Local No. 2 etc.
Mantalica, Barclay & Teegarden, and Lewis C. Teegarden, Los Angeles, Cal., for appellants Employers & Southern California Plastering Institute Inc.
Earl Klein, Beverly Hills, Cal., for appellees.
Axel W. Oxholm and Betty J. Southard, Washington, D. C., amicus curiae National Bureau for Lathing & Plastering, Inc Bert E. Kragen, San Francisco, Cal., and Ziskind & Ross, Los Angeles, Cal., amici curiae Painting & Decorating Contractors of California, Inc.
Ziskind & Ross, Los Angeles, Cal., amici curiae Painting & Decorating Contractors Association of Los Angeles, Inc.
Alexander H. Schullman, Los Angeles, Cal., amici curiae District Council No. 36 of the Brotherhood of Painters, Decorators & Paperhangers of America.
Ziskind & Ross, and Alexander H. Schullman, Los Angeles, Cal., amici curiae Los Angeles County Painting & Decorating Joint Committee, Inc.
Before STEPHENS, BARNES and JERTBERG, Circuit Judges.
BARNES, Circuit Judge.

1
This is an action for declaratory and injunctive relief under the provisions of Section 302 of the Labor Management Relations Act, as amended (hereinafter referred to as the LMRA). Jurisdiction existed below as to the injunctive relief sought (Subdivision (e) of Section 302, 29 U.S.C. § 186(e)); and on appeal lies here (28 U.S.C. § 1291).

2
The declaratory relief sought rests on the provisions of 28 U.S.C. §§ 2201 and 2202, so long as jurisdiction is conferred by 29 U.S.C. § 186(e). We consider and hold this controversy a real and substantial controversy admitting of specific relief through a decree of conclusive character, and not an opinion advising what the law would be on a hypothetical state of facts. Samuel Goldwyn, Inc. v. United Artists Corp., 3 Cir., 1940, 113 F.2d 703.

3
The action originally was one for an injunction only, filed by certain employers engaged in the lathing and plastering business in the State of California. These plaintiff employers had signed, in June 1959, identical collective bargaining agreements with defendant unions. Each agreed to abide by the terms of an agreement made on January 2, 1958, between defendant The Contracting Plasterer's Association of Southern California, Inc., and the defendant unions; and any new agreement between said last named parties.

4
Thereafter The Contracting Plasterer's Association of Southern California, Inc. and the defendant unions signed a new collective bargaining agreement. Some plaintiffs signed the new agreement.

5
The new agreement contained the following provisions, in pertinent part, in Article VI:

6
"B. Southern California Plastering Institute Industry Program

7
"1. The Trust Agreement of the Southern California Plastering Institute Industry Program, as amended and modified, is a part hereof as though fully set forth herein.

8
"2. The Contractors covered by this Agreement, in addition to compliance with all other provisions contained herein, shall pay to the Southern California Plastering Institute Industry Program, or its order, the sum of Four and Three-Fourths Cents (4¾¢) for each hour a man is to receive pay pursuant to the terms of this Contract.

9
"3. The Southern California Plastering Institute Industry Program may require payments to be made directly to it or may designate by written order an agent for deposit or collection. In the event no such agent or depository is named, said sums shall be paid to the Southern California Plastering Institute Trust for the benefit of the Southern California Plastering Institute Industry Program.

10
"C. Southern California Plastering Institute Trust

11
"1. The Southern California Plastering Institute Trust, herein referred to as the Institute Trust, shall continue in existence for the purpose of collecting such sums as are due the various Trusts which are part of this Agreement, and to pay over to said Trust such sums as are collected. The Trust Agreement of the Southern California Plastering Institute Trust, as amended and modified, is made a part hereof as though fully set forth herein.

12
* * * * * *

13
"E. Labor-Management Relations Trust

14
"1. The Trust Agreement of the Labor-Management Relations Trust is made a part hereof as though fully set forth herein.

15
"2. The Contractors covered by this Agreement, in addition to compliance with all other provisions contained herein, shall pay to the Labor-Management Relations Trust, or its order, the sum of One-Fourth Cent (¼¢) for each hour a man is to receive pay.

16
"3. The Labor-Management Relations Trust may require payments to be made directly to it or may designate by written order an agent for deposit or collection. In the event no such agent or depository is named, said sums shall be paid to the Southern California Plastering Institute Trust for the benefit of the Labor-Management Relations Trust."1

17
Plaintiffs below urged that the three Trust Agreements mentioned (B, C and E, supra) were void, invalid and violative of the terms of the Labor Relations Act of 1947, as amended in 1959, in that: (1) they provided for payments by employers to representatives of employees of plaintiffs; (2) that moneys so paid were used for purposes other than those permitted under subsection (c) of § 302 of the LMRA.

18
As amended in 1959, 29 U.S.C. § 186(c) (5)2 which proscribed payments, contained an exemption "with respect to money * * * paid to a trust fund established * * * for the sole and exclusive benefit of the employees * * *, and their families and dependents * * *: provided,"

19
"That (A) such payments are held in trust * * * for medical or hospital care, pensions * * *, [workmen's] compensation * * * or insurance * * * or unemployment benefits or life insurance, disability and sickness insurance, or accident insurance; * * *."

20
Section 302(c) (6) provides a second exemption —

21
"* * * with respect to money * * * paid by any employer to a trust fund * * * for the purpose of pooled vacation, holiday, severance or similar benefits, or defraying costs of apprenticeship or other training programs."

22
As to both exemption (5) and (6), supra, clause (B) of § 302(c) (5) was specifically made applicable, requiring that "written agreements" were essential, as well as "equal" representation between employers and employees in the administration of such fund, with an impartial umpire to be agreed upon in the event of a deadlock; for annual audits, and for open inspection of the accounts.

23
Subsequent to the filing of the original complaint, a supplemental complaint was filed. It added a second cause of action for declaratory relief seeking to hold invalid the trust which had evolved, since the filing of the original complaint, by reason of the transfer to the trustee (a California non-profit corporation, The Southern California Plastering Institute, Inc.) of all the functions of the three trusts hereinbefore described.

24
According to the allegations of the supplemental complaint, the articles of incorporation did not designate the members of the corporation but the By-laws, adopted on February 13, 1961, designated eight locals of various unions and two corporations representing employers as members. The voting rights of the members are divided as follows: Local 2 of the Operative Plasterers & Cement Masons International Association, A. F. L., 3 directors; Local 194 of the same union, 1 director; Local 400, 1 director; Local 489, 2 directors; Local 343, 1 director; Local 739, 2 directors; Local 838, 1 director; Local 42 of Wood, Wire and Metal Lathers International Union, A. F. L., 1 director; Contracting Plasterers Association of Southern California, 11 directors; Lathing and Metal Furring Contractors Association of California, Inc., 1 director.

25
The answers of the defendants to the complaint and the supplemental complaint admitted the main facts, the existence of the original trust agreements and the assumption of its functions by the corporation in the collective bargaining agreement between the employers and the unions. The denials related merely to the validity and legality of the transaction. The answers to the supplemental complaint asserted that "the Southern California Plastering Institute, Inc. was incorporated for the purposes set forth in said Articles of Incorporation and for the purpose of creating an entity whose acts, conduct and operations would not lie within the proscriptions of any of the sections of the Labor-Management Relations Act." Also that the original defendants: "are not now collecting monies from plaintiffs or other contractors; that the defendant Southern California Plastering, Inc. is the only defendant now authorized to collect money from plaintiffs or other contractors."

26
Union appellants state three questions are here involved:

27
1. Did Congress intend, by the exceptions in subdivision (c) of § 302 of the LMRA to limit the type of funds which could be jointly administered by labor and management?

28
2. Does a trust or corporation become a "representative" of employees, within the meaning of § 302 merely because one-half of the trustees of the trust and one-half of the directors of the corporation are appointed by a labor organization where the purposes of said trusts or corporation are limited to promoting the use of lath and plaster in the construction industry?

29
3. Are payments by employers to such trusts and corporations within the prohibition of (a) and (b) of § 302?

30
Appellants Employers and Southern California Plastering Institute agree that the first two questions hereinabove mentioned are those here involved. (An affirmative answer to the third question raised above necessarily follows if questions one and two are answered affirmatively.)

31
Amicus Curiae National Bureau For Lathing and Plastering, Inc., a corporation, urges the same first two questions, and adds a fourth: "Whether the District Court's interpretation of Section 302, if allowed to stand, results in a denial of due process, in that the interpretation renders the section void for vagueness."

32
An Amici Curiae brief is also before us from Painting and Decorating Contractors of California, Inc., Painting and Decorating Contractors Association of Los Angeles, Inc., District Council No. 36 of the Brotherhood of Painters, Decorators & Paperhangers of America, Los Angeles County Painting and Decorating Joint Committee, Inc. It urges that the district court's application of § 302 to the facts of this case is unconstitutional; inconsistent with the remainder of the LMRA; and contrary to the express intent of Congress, and that the Southern California Plastering Institute is not a "representative of employees."

33
Appellees agree as to the first question raised by appellants, treat the second question in two separate arguments (as to the "joint trusts" and the "corporation"), and raise a fifth issue: "Should a corporate entity set up for the express purpose of evading the provisions of Section 302 be disregarded?"

34
We need not reach the fifth question raised by appellees, because in our view the earlier questions raised control the case. We therefore accept the union appellants' statement of the questions involved, plus the due process question.

35
We answer the first three questions so raised affirmatively, and the fourth negatively. Congress did intend to limit the type of funds which could be jointly administered; both the trusts and the corporation created here are "representatives of employees;" the payments sought to be halted by plaintiffs are within the prohibition of § 302(a) and (b) of the Act, and not within the exemptions contained in § 302(c); and the district court's interpretation of § 302 does not render the section void for vagueness, nor does it result in a denial of due process.

36
Congress, in passing the 1959 amendments to the LMRA, acted, as appellees state, "very cautiously." Let us assume, arguendo, that the trusts originally created are not here involved, by mootness. We then have a corporation, Southern California Plastering Institute, Inc., organized, as the district court described it:

37
"* * * as a general non-profit corporation under the non-profit corporation law of the State of California. California Corporations Code, § 9000 et seq.

38
"The objects stated in the Articles of Incorporation were these:

39
"(a) To promote industry betterment and industry public relations for the lathing and plastering industry.

40
"(b) To encourage harmony between labor and management within the lathing and plastering industry.

41
"(c) To carry out appropriate programs of public relations for the general welfare and advancement of the lathing and plastering industry.

42
"(d) To gather and distribute facts, data and other information relative to the use and benefits of lath and plaster in general for the use and benefit of its members, the lathing and plastering industry as a whole and for public dissemination.

43
"(e) To engage generally in any causes or objects similar to the foregoing in order to promote the lathing and plastering industry.

44
"(f) To adopt By-laws prescribing the duties of the officers and agents of the corporation, the detail of its organization, the time and manner of its meetings, and any and all detail incident to its meetings and conduct and management of its organization.

45
"(g) To do any and all things which a natural person may do necessary or desirable for the general purpose for which the corporation is organized.

46
"These objects are well within the purposes authorized by California law for non-profit corporations. * * *"

47
The district court then disposed of the question raised below by appellees as to whether the Southern California Plastering Institute, Inc. "[was] engaging in the trust business without authorization." Such a question, ruled the district court, is one to be ruled upon only by the State of California.

48
"[T]he State is the only power that can intervene to determine the truth of these allegations and take appropriate action, either by quo warranto or other authorized proceedings. California Financial Code, §§ 3111-3132. We cannot usurp that State function under the guise of a declaration of rights."

49
We agree.

50
We next compare the laudable purpose of the non-profit corporation with the restrictions contained in the LMRA as to what funds can be set up and used. Did the original three trust funds and the later corporation perform functions forbidden by the Act? We quote with approval from Judge Yankwich's decision below:

51
"The clause [§ 302(c) (5) and (6)] is an exception to the general provisions of the section, the aim of which is to proscribe the payment by employers and receipt by employee representatives in industries affecting commerce of bribes, gifts and gratuities, and to control monies paid into union trust funds as `war chests' or for other purposes.

52
"After the adoption of the statute (Taft-Hartley) so many variant interpretations, allegedly drawn from its history, were asserted that Judge Learned Hand in a dissent in a noted case, United States v. Ryan, 2 Cir., 1955, 225 F.2d 417, complained that he found `it impossible to extract any safe principles'. At page 427. The Supreme Court * * * granted certiorari in that case and its decision has become the guide to the meaning of the section. Especially insofar as it relates to the prohibition against payment to `representatives' of the union. The entire clause as it stood before the 1959 amendment is printed in the margin [note].

53
"The important part of the Ryan decision, so far as it concerns this case, is contained in the following statement as to the scope of the exceptions: `Nor can it be contended that in this legislation Congress was aiming solely at the welfare fund problem. Such a suggestion is supported neither by the legislative history nor the structure of the section. The arrangement of § 302 is such that the only reference to welfare funds is contained in § 302(c) (5). If Congress intended to deal with that problem alone, it could have done so directly, without writing a broad prohibition in subsection (a) and (b) and five specific exceptions thereto in subsection (c), only the last of which covers welfare funds. As the statute reads, it appears to be a criminal provision, malum prohibitum, which outlaws all payments, with stated exceptions, between employer and representative.' United States v. Ryan, supra, 350 U.S. 299, at page 305, 76 S.Ct. 400, at page 404, 100 L.Ed. 335. (Emphasis added)

54
"As I read this extract it means just this, that subsection 5 is a declaration of the Congress that only welfare funds coming within one of the five (now six) exceptions are exempt from the sweep of congressional condemnation. Subsequent decisions of the Supreme Court confirm this view. [Emphasis by Judge Yankwich.]

55
"In National Labor Relations Board v. Cabot Carbon Co., 1959, 360 U.S. 203, 79 S.Ct. 1015, 3 L.Ed.2d 1175, the high Court upheld the ruling of the National Labor Relations Board to the effect that a `committee' of employees which deal with employers was forbidden by the Act, despite the insistence that `to hold these employee committees to be labor organizations would prevent employers and employees from discussing matters of mutual interest concerning the employment relationship.' 360 U.S. at page 218, 79 S.Ct. at page 1024. (Emphasis added) To this the Court answered: `The principal distinction lies in the unfettered power of the former to insist upon its requests. [National] Labor Relations Board v. Jas. H. Matthews & Co., 3 Cir., 156 F.2d 706, 708. Whether those proposals and requests by the Committees, and respondents' consideration of and action upon them, do or do not constitute "the usual concept of collective bargaining" (256 F.2d [281], at page 285), we think that those activities establish that the Committees were "dealing with" respondents, with respect to those subjects, within the meaning of § 2(5) [of the National Labor Relations Act].' 360 U.S. at page 214, 79 S.Ct. at page 1022.

56
"In Arroyo v. United States, 1959, 359 U.S. 419, 79 S.Ct. 864, 3 L.Ed.2d 915, the majority of the court held that in enacting the section the Congress were concerned with corruption of collective bargaining through bribery of employees representatives by employers and `with the possible abuse by union officers of the power which they might achieve if welfare funds were left to their sole control.' 359 U.S. at page 426, 79 S.Ct. at page 868. (Emphasis added)

57
"I take these statements to mean that the only purposes for which joint administrative committees of employers and employees, working within the framework of the Labor Management Relations Act, [emphasis by Judge Yankwich] could act were those coming within the exceptions. This interpretation is confirmed by the added statement contained in the opinion: `Congress believed that if welfare funds were established which did not define with specificity the benefits payable thereunder, a substantial danger existed that such funds might be employed to perpetrate control of union officers, for political purposes, or even for personal gain. See 92 Cong.Rec. 4892-4894, 4899, 5181, 5345-5346; S.Rep. No. 105, 80th Cong., 1st Sess., at 52; 93 Cong.Rec. 4678, 4746-4747. To remove these dangers, specific standards were established to assure that welfare funds would be established only for purposes which Congress considered proper and expended only for the purposes for which they were established. See Cox, Some Aspects of the Labor Management Relations Act, 1947, 61 Harv.L.Rev. 274, 290. Continuing compliance with these standards in the administration of welfare funds was made explicitly enforceable in federal district courts by civil proceedings under § 302(e).' 359 U.S. at pages 426-427, 79 S.Ct. at page 868. (Emphasis added) [note]

58
"The conclusion is reenforced by the statement in a later case, Lewis v. Benedict Coal Corp., 1960, 361 U.S. 459, 80 S.Ct. 489, 4 L.Ed.2d 442, which reads: `The provisions of the collective bargaining agreement creating the fund included the express provision that "this Fund is an irrevocable trust created pursuant to Section 302(c) of the `Labor-Management Relations Act, 1947.'" Another provision specifies that the purposes of the fund shall be all purposes "provided for or permitted in Section 302(c)." In this way the agreement plainly declares what the statute requires, namely, that the fund shall be used "for the sole and exclusive benefit" of the employees, their families and dependents.' 361 U.S. at pages 464-465, 80 S.Ct. at page 493.

59
"All cases interpreting this clause which have arisen since the decision in Ryan, supra, must be read in the light of its declarations and those contained in subsequent cases as to the scope of the limitations on the nature of trust funds. So read they warrant the conclusion that the only trust funds permitted are those in the six categories now contained within the exceptions. [Emphasis by Judge Yankwich.]

60
"In the light of this, the contention of the defendants that the clause under discussion does not prohibit joint administration of trust funds, if they are established for other purposes than dealing with the employers `concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work' (29 U.S.C.A., § 152(5)) cannot be sustained."

61
Judge Yankwich then differentiated Conditioned Air & Refrigeration Co. v. Plumbing & Pipe Fitting Labor-Management Relations Trusts, D.C.Cal.1956, 159 F.Supp. 887, affirmed, 9 Cir., 253 F.2d 427, and Sheet Metal Contractors Association of San Francisco v. Sheet Metal Workers International Association, 9 Cir., 1957, 248 F.2d 307. He cited Copra v. Suro, 1 Cir., 1956, 236 F.2d 107, and Employing Plasterers' Association of Chicago v. Journeymen Plasterers' Protective & Benevolent Society of Chicago, 7 Cir., 1960, 279 F.2d 92, as supporting his conclusions. He quoted from Mechanical Contractors Association of Philadelphia v. Local Union No. 420, 3 Cir., 1959, 265 F.2d 607:

62
"`Thus, the essence of Section 302 may be summarized as follows: No fund derived from employer contributions may be administered by persons designated by a union unless the fund meets the standards set forth in Section 302(c) (5). Any employee-designee administering such fund not meeting the requirements of Section 302(c) (5) is a "representative" within the meaning of Subsections 302(a) and (b). As was stated in United States v. Ryan, 350 U.S. at page 305, 76 S.Ct. at page 404, "if `representative' means only the `exclusive bargaining representative,' the explicit limitations on welfare funds in § 302(c) (5) may be easily evaded. Payments made directly to union officials, or to other individuals as trustees, would apparently be excluded from § 302. Thus, a narrow construction would frustrate the primary intent of Congress." (Emphasis supplied.).'"

63
and,

64
"`As was stated by Judge Hand in his dissenting opinion in United States v. Ryan, 2 Cir., 1955, 225 F.2d 417, 425, subsequently adopted by the Supreme Court, "Since * * * the purpose of subsection (c) is to state exceptions to the preceding subsections (a) and (b), the payments that subsection (c) covers would fall within (a) and (b) except for the exception."' * * * (Emphasis added)"

65
The able trial judge then observed that the restrictive interpretation of § 302(c) (5) was aided by the addition of § 302(c) (6) in 1959 (73 Stat. 537) covering pooled vacations, etc. Costs of apprenticeship training had been held a lawful purpose in South Louisiana Chapter, Inc. v. Local Union No. 130 of the Int. Brotherhood of Electrical Workers, E.D.La.1959, 177 F.Supp. 432; that "Congress * * * has been required to spell out its intent in order that courts will not strike down, as illegal, labor and management-agreements, such as the one in suit, which promote harmony in an industry and redound to the benefit of the employer and employee alike."

66
But until Congress has spelled out such an intent, with respect to the activities specifically exempted, it is not the function of the courts to create additional exemptions. Such would be the result of a single court's belief as to what will or will not "promote harmony" and "redound to the benefit of the employer and employee alike." This court can believe that Congress might well have, or even should have, provided additional exemptions, permitting the setting up of laudable trusts that are vital to the preservation of the economic position of both labor and management, yet this court cannot be the arbiter of what such exemptions should be. That is the duty and responsibility of Congress. As Judge Yankwich ruled: Congress proscribed certain practices and permitted others in labor-management agreements, and permitted "joint trust funds for certain purposes only."

67
It is perfectly true, as the union contends, that there is not the slightest hint in the record that any of the trust funds here involved "has resulted in bribes, kickbacks, slush funds, racketeering or union war chests; nor do [plaintiffs] assert that this fund is under the sole control of the union." We accept that statement, with gratitude and happiness that it is true. But that does not prove that the trust fund is "not within the scope of the evil which Congress intended to eliminate." We agree with appellees and Employing Plasterers' Association of Chicago v. Journeyman Plasterers' Protective & Benevolent Society of Chicago, supra, wherein the court stated:

68
"Section 302 is aimed primarily at the prevention of possible abuse and not at providing a remedy for abuse actually perpetrated. * * * Where it is established that payment and acceptance is between employer and `representatives' of employees, the issue in a suit for injunction becomes the legality of the welfare funds as measured by the statutory standards of administration." (279 F.2d at 97.) (Emphasis added.)

69
Gibas v. United States, 7 Cir., 1962, 300 F.2d 836, 840.

70
Appellants urge that this "good purpose" of the funds so paid was but of indirect benefit to the employees, and not to their direct benefit. We find in the statute no language creating or recognizing such a distinction.

71
Judge Yankwich did not find it necessary to reach the differences between the powers and voting rights of the trustees of the original trusts, and those of the directors of the non-profit corporation. This because, in his opinion, the purposes, both of the trusts and the corporation, violated the collective bargaining agreement they were to implement.

72
Are these trust funds, and more particularly, is this non-profit corporation, a "representative" of the employees of a labor organization? Appellants admit that the trade promotion funds herein involved are not within any of the exceptions of subsection (c) of § 302. But they earnestly urge that neither are such funds within the proscription of § 302(a) and (b) because the payments are not made to a "representative of employees."

73
We agree with appellants that the factual situation here is not precisely comparable to that in the Sheet Metal Contractors Association case, supra, where the trustee, a Joint-Industry Board, aided disputes between labor and management arising from a collective bargaining agreement, set up arbitration committees, a forum to discuss the problems of the industry, and "cooperated" with "public bodies" with respect to legislation.

74
The Board in the Sheet Metal case, supra, had the authority and power "to study and correct improper working conditions and shall decide all controversies or disputes arising under this agreement." This court concluded: "The purposes of the Board, indicate that it existed for the purpose at least in part of dealing with employers concerning grievances, etc." Our opinion presumed that "any dispute" between the parties to the agreement included "grievances," and concluded that the Joint-Industry Board satisfies the definition of "labor organization" contained in the original Wagner Act (29 U.S.C. § 152(5)).3 Here there was undisputed employee participation in a plan. If it existed, even in small part, for the purpose of dealing with employers concerning grievances or disputes, or conditions of work, it was then a "labor organization" within the 29 U.S.C. § 152(5) definition, and could be a "representative" within the 29 U.S.C. § 152(4) definition.4

75
We now turn to the purposes of the corporation, and the antecedent trusts. Plaintiffs' Exhibit 2, "Agreements and Declarations of Trust," indicates that six separate agreements were signed by the same parties on behalf of labor, and the same parties on behalf of management.

76
First: There was the "Southern California Plastering Institute Trust." It was the collecting agency for (a) the Insurance Trust; (b) the Industry Program; (c) the Pension Trust; and (d) the Labor-Management Relations Trust.

77
There was also (e) a Vacation Plan with a Vacation Fund Account to which amounts were payable under the collective bargaining agreements. The trustees of Southern California Plastering Institute acted as trustees for this fund.

78
As quoted above, the only trusts herein attacked were the Industry Program, the Institute Trust, and the Labor-Management Relations Trust. No question is raised as to the Vacation Plan, the Insurance Trust or the Pension Trust.

79
The agreements setting up the respective trusts were all made a part of the collective bargaining agreement, "as though set forth in full." The Institute Trust had no purpose other than to act as a conduit for the moneys collected on their way to the other trusts.

80
Second: We find the Industry Program trust had certain stated purposes, functions and powers.5

81
The purpose was to promote "industry betterment and industry public relations." The trustees were equally divided between the contractors and the union. (Art. III, ¶ B.) Under Article V, ¶ A, the trustees had full power to carry out, as they deemed appropriate, a program of public relations for the general welfare and advancement of the plastering industry. Under Article V, ¶ M, the trustees could employ counsel, and executive, administrative, clerical and secretarial help, and incur and pay any other expense reasonably incidental to the administration of the trust.

82
Under Article V, ¶ G, the trustees had the power "to enforce the payment of contributions to the trust by individual employers under the terms of the collective bargaining agreements or under any other promise to make such payments." Under Article V, ¶ J, the trustees had the power to require employers to submit any "information, data, report or documents reasonably relevant" to the administration of the trust.

83
Third: Under the Labor-Management Relations Trust created by the collective bargaining agreement, the functions and powers6 of the six trustees (three appointed by the unions, and three by the contractors) were "to expend the funds * * * for the common interest of labor-management relations * * * for secretarial or reporter's services required for meetings of labor-management negotiating committees, for legal services and other costs * * * pertaining to said [Collective Bargaining] Agreement, and for other incidental costs and expenses of labor-management relations." The Trustees had under Article IV, ¶ J, similar powers to those of the Industry Program Trustees mentioned above.

84
It should be noted generally that in the Industry Program Trust three-fourths of the trustees constituted a quorum,7 but a majority of all trustees (not a majority of a quorum) governed "in the determination of any matter." In the Labor-Management Relations Trust, five of the six trustees constituted a quorum,8 but a majority of all trustees (not a majority of a quorum) governed "in the determination of any matter." Thus both labor and management maintained an absolute veto on any proposed action. Such procedure satisfies the requirement of employees' "participation." No matter could be acted upon by either trust without "employee participation." We have already ruled in Sheet Metal Contractors Association v. Sheet Metal Workers, supra, that the term "employee participation" must, like the term "representative," be given a broad and inclusive meaning. Such an interpretation is required of us by United States v. Ryan, supra.

85
We note that this case was decided below largely on the written evidence produced by stipulation. Oral testimony was limited, and only addressed to the question of the amount of interstate commerce, a question not raised on this appeal. The court below, therefore, had no better opportunity than we have to scrutinize witnesses.

86
We conclude that the evidence in this case clearly establishes that the three trusts (Industry Program, Labor-Management Relations Trust, and the Institute Trust) as well as the succeeding corporate entity, are severally "representative" of employees as that term is used in § 302(a) and (b); and that the purposes, powers and functions of the trusts and corporation here involved are not within the exemptions created by Congress, and are not permissible objects for the use of joint trust funds.9

87
We do not quarrel in the slightest with the laudable objectives of the trust amicably created by labor and management in this case. We sympathize with the efforts of both labor and management to solve a vexing industry problem. But like so many of such present day problems, our duty is to rule in accordance with that which the Congress (quote) in its wisdom (end of quote) has seen fit to enact. We cannot widen the door when the door sill has been carefully tailored by the representatives in Congress. The relief sought by the appellants herein must be found in congressional and not judicial action.

88
We affirm the judgment below.

Notes:

1
 Article VI also contained paragraph A, relating to payments into an insurance program; paragraph D, relating to payments into a pension trust fund; and paragraph F, relating to a vacation plan. Such funds are not here involved

2
 Section 302(c) (5) of the LMRA

3
 Which reads: "The term `labor organization' means any organization of any kind, or any agency or employee representation committeeor plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rate of pay, hours of employment, or conditions of work." (Emphasis added.)

4
 Which reads: "The term `representatives' includesany individual or labor organization." (Emphasis added.)

5

"ARTICLE V
"FUNCTIONS AND POWERS
"A. The trustees shall have full power to select and carry out as they deem appropriate a program of public relations for the general welfare and advancement of the plastering industry, and shall assume existing contracts and liabilities of the Industry Program as previously carried on by the Southern California Plastering Institute.
"B. The Industry Program shall continue to pay to the National Bureau of Lathing and Plastering, Washington, D. C. so long as said organization qualifies as a business league under the provisions of Section 501(c) (6) of Internal Revenue Code of 1954, the sum of ½¢ of each 4¾¢ received by the Industry Program for the purpose of improvement of business conditions of the lathing and plastering industry, but in no event shall this sum exceed $400 per week.
"C. The Industry Trust shall have the right and power to receive payments from sources other than those provided in this contract for the purposes of trade promotion and advertising.
"D. The Southern California Plastering Institute Industry Program may require payments to be made directly to it or may designate by written order an agent for deposit or collection. In the event no such agent or depository is named, said sums shall be paid to the Southern California Plastering Institute Trust for the benefit of the Industry Program.
"E. The trustees of the Industry Program are hereby empowered to delegate to the Insurance Program the maintenance and operation of the office, personnel and records of the Industry Program. In such event the Industry Program shall pay that portion of the expense of said operation which is fair and reasonably attributable to the Industry Program in the opinion of the trustees.
"F. The trustees shall have the power to do all things necessary to collect and receive funds due to the Industry Program by the terms of the labor agreement, addendum and modifications thereto, including the right to sue to recover said payments and costs of suit.
"G. Without prejudice to the rights of the parties under the collective bargaining agreements with respect to their enforcement, The Board of Trustees shall have the power to enforce the payment of contributions to the trust by individual employers under the terms of the collective bargaining agreements or under any other promise to make such payments in any particular case or cases only where such action is specifically authorized by a resolution of the Board. If any individual employer defaults in the making of such payments and if the Board consults legal counsel with respect thereto, or files any suit or claim with respect thereto, there shall be added to the obligation of the employer who is in default, reasonable attorneys' fees, court costs and all other reasonable expenses incurred by the Board in connection with such default.
"H. The Board of Trustees shall procure fidelity bonds for each trustee or other person authorized to handle, deal with, or draw upon the moneys in the trust for any purpose whatsoever, said bonds to be in such reasonable amount and to be obtained from such source as the Board shall determine.
"I. The Board of Trustees shall have power to authorize one person to sign checks drawn on the trust in amounts not exceeding $500. Except as covered by such authority, all checks, drafts, vouchers or other withdrawals, of money from the trust shall be authorized in writing or countersigned by at least one trustee who is an employer representative and one trustee who is an employee representative.
"J. The Board of Trustees shall maintain suitable and adequate records of and for the administration of the trust and all business relations thereto. The Board may require the employers, any individual employer, the union, and any individual employee to submit to it any information, data, report or documents reasonably relevant and suitable for the purposes of such administration. The parties agree that they will use their best efforts to secure compliance with any reasonable request of the board for any such information, data, report or documents.
"K. The trustees shall cause to be made an annual audit of the trust by a C.P.A. and shall make available to all interested persons a statement of the results of such audit at the principal office of the trust, and at such other places from time to time designated by the trustees.
"L. No contractor actively engaged in the plastering business, no union official or business agent of the contracting unions, and no trustee of the trust shall be employed by said trust.
"M. The Board of Trustees shall have power:
"1. To establish and accumulate such reserve funds as may be necessary to provide for administration expenses and other proper obligations of the trust.
"2. To employ such executive, administrative, clerical, secretarial and legal personnel and other employees and assistants as may be necessary in connection with the administration of the trust, and to pay or cause to be paid, out of the trust, the compensation and expenses of such personnel and assistants, the cost of office space, furnishings and supplies and other essentials required in such administration.
"3. To consult with and secure the advice of legal counsel on any question of fact or law arising in connection with the administration of the trust, including, at the request of either the employer trustees or the union trustees, advice on any question from legal counsel selected by the employer trustees and legal counsel selected by the union trustees who shall be directed to confer with each other and, if possible, submit a joint opinion to the Board, and in like manner to employ legal counsel or joint legal counsel in connection with suits or claims by or against the Board of the trust with respect to the trust, and to pay the reasonable costs of such legal services from the trust.
"4. To incur and pay out of the trust any other expense reasonably incidental to the establishment and administration of the trust. To carry on all its functions under the name of Southern California Plastering Institute Industry Program and to carry any and all bank accounts in a trust fund under that name.
"5. To invest and reinvest such portion of the trust as is not required for current expenditures and charges in such securities as are legal for the investment of trust funds under the laws of the State of California.
"6. To adopt rules and regulations for the administration of the trust which are not inconsistent with the purpose and intent of this agreement."

6

"ARTICLE IV
"FUNCTIONS AND POWERS
"A. It shall be the function of the Trustees, and the Trustees shall have the power to expend the funds of the Trust for the common interest of labor-management relations of the parties to the Collective Bargaining Agreement, for the printing of necessary forms and documents required to facilitate the said Agreement, the printing of said Agreement and any amendments and addendum thereto, for secretarial or reporter's services required for meetings of labor-management negotiating committees, for legal services and other costs incurred by management-employed counsel, such as consultation, attendance at meetings, drafting of documents and litigation related to matters pertaining to said Agreement, and for other incidental costs and expenses of labor-management relations. None of the Trust Fund shall be used for any purpose contrary to or inimical to the Union or to the Contractor parties to the Collective Bargaining Agreement.
"B. The Labor Relations Trust may require payments to be made directly to it or may designate by written order an agent for deposit or collection. In the event no such agent or depository is named, said sums shall be paid to the Southern California Plastering Institute Trust for the benefit of the Labor Relations Trust.
"C. The Trustees shall have the power to do all things necessary to collect and receive funds due to the Labor Relations Trust by the terms of the Labor Agreement, addendum and modifications thereto, including the right to sue to recover said payments and costs of suit.
"D. Without prejudice to the rights of the parties under the Collective Bargaining Agreements with respect to their enforcement, the Board of Trustees shall have the power to enforce the payment of contributions to the Trust by individual employers under the terms of the Collective Bargaining Agreements or under any other promise to make such payments in any particular case or cases only where such action is specifically authorized by a resolution of the Board. If any individual employer defaults in the making of such payments and if the Board consults legal counsel with respect thereto, or files any suit or claim with respect thereto, there shall be added to the obligation of the employer who is in default, reasonable attorneys' fees, court costs and all other reasonable expenses incurred by the Board in connection with such default.
"E. The Board of Trustees shall procure fidelity bonds for each Trustee or other person authorized to handle, deal with, or draw upon the moneys in the Trust for any purpose whatsoever, said bonds to be in such reasonable amount and to be obtained from such source as the Board shall determine.
"F. The Board of Trustees shall have power to authorize one person to sign checks drawn on the Trust in amounts not exceeding $500. Except as covered by such authority, all checks, drafts, vouchers or other withdrawals of money from the Trust shall be authorized in writing or countersigned by at least one Trustee who is an employer representative and one Trustee who is an employee representative.
"G. The Board of Trustees shall maintain suitable and adequate records of and for the administration of the Trust and all business relations thereto. The Board may require the Employers, any individual Employer, the Union, and any individual employee to submit to it any information, data, report or documents reasonably relevant and suitable for the purposes of such administration. The parties agree that they will use their best efforts to secure compliance with any reasonable request of the Board for any such information, data, report or documents.
"H. The Trustees shall cause to be made an annual audit of the Trust by a C.P.A. and shall make available to all interested persons a statement of the results of such audit at the principal office of the Trust, and at such other places from time to time designated by the Trustees.
"I. No contractor actively engaged in the plastering business, no union official or business agent of the contracting unions, and no Trustee of the Trust shall be employed by said Trust.
"J. The Board of Trustees shall have power:
"1. To establish and accumulate such reserve funds as may be necessary to provide for administration expenses and other proper obligations of the Trust.
"2. To employ such executive, administrative, clerical, secretarial and legal personnel and other employees and assistants as may be necessary in connection with the administration of the Trust, and to pay or cause to be paid, out of the Trust, the compensation and expenses of such personnel and assistants, the cost of office space, furnishings and supplies and other essentials required in such administration.
"3. To consult with and secure the advice of legal counsel on any question of fact or law arising in connection with the administration of the Trust, including, at the request of either the Employer Trustees or the Union Trustees, advice on any question from legal counsel selected by the Employer Trustees and legal counsel selected by the Union Trustees who shall be directed to confer with each other and, if possible, submit a joint opinion to the Board, and in like manner to employ legal counsel or joint legal counsel in connection with suits or claims by or against the Board or the Trust with respect to the Trust, and to pay the reasonable costs of such legal services from the Trust.
"4. To incur and pay out of the Trust any other expense reasonably incidental to the establishment and administration of the Trust. To carry on all of its functions under the name of Labor-Management Relations Trust and to carry any and all bank accounts in a trust fund under that name.
"5. To invest and reinvest such portion of the Trust as is not required for current expenditures and charges in such securities as are legal for the investment of trust funds under the laws of the State of California.
"6. To adopt rules and regulations for the administration of the Trust which are not inconsistent with the purpose and intent of this Agreement."

7
 Article IV, ¶ G

8
 Article III, ¶ G

9
 Nowhere has our attention been called to any attempt to comply, either in the trusts set up or the corporation, with the requirements of 29 U.S.C. § 186(c) (5) (B) with respect to the naming of neutral persons empowered to break a deadlock between trustees or directors


170 F.Supp.2d 436 (2001)
REGIONS BANK d/b/a Regions Funding, Plaintiff,
v.
WIEDER & MASTROIANNI, P.C. and Peter Mastroianni, Defendants/Third-Party Plaintiffs,
v.
Morning Star Mortgage Bankers, Inc. and Angela Daidone, the Provident Bank, d/b/a Provident Consumer Financial Services, Inc., Third-Party Defendants.
No. 01 CIV. 0016(WCC).
United States District Court, S.D. New York.
November 7, 2001.
Certilman Balin Adler & Hyman, LLP, East Meadow, NY (Thomas J. McNamara, Esq., Of Counsel), for Plaintiff.
Wilson, Elser, Moskowitz, Edelman & Dicker, New York City (Mark K. Anesh, *437 Esq., Christian T. Novay, Esq., Of Counsel), for Defendants/Third-Party Plaintiffs,
Buchanan Ingersoll, Professional Corporation, New York City (William M. O'Connor, Esq., Donna L. Menghini, Esq., Of Counsel), Keating, Muething & Klekamp, P.L.L., Cincinnati, OH (James E. Burke, Esq., Of Counsel), for Third-Party Defendant The Provident Bank d/b/a Provident Consumer Financial Services, Inc.

OPINION AND ORDER
WILLIAM C. CONNER, Senior District Judge.
Regions Bank d/b/a Regions Funding ("Regions") brought the instant action against defendants Wieder & Mastroianni, P.C. and Peter Mastroianni (collectively "W & M"), alleging, inter alia, wrongful conversion of funds and breach of fiduciary duty. W & M then filed a Third-Party Complaint against The Provident Bank, Inc. d/b/a Provident Consumer Financial Services, Inc. ("Provident"), Morning Star Mortgage Bankers, Inc., and Angela Daidone ("Daidone") (collectively "Morning Star"). Third-party defendant Provident now moves to dismiss W & M's Third-Party Complaint pursuant to FED. R. CIV. P. 12(b)(6) or, in the alternative, to stay or dismiss this action in favor of an earlier filed action in the Northern District of Georgia. For the reasons stated below, Provident's motion is granted in part.

BACKGROUND[1]
The instant action arises from a series of fraudulent banking transactions initiated by Morning Star through its president and chief executive officer Daidone. Morning Star was in the business of originating residential mortgage loans. In order to obtain funding for these loans, Morning Star arranged lines of credit with financial institutions called "warehouse lenders." (Complt. ¶ 15.) A warehouse lender provides short-term funding for home buyers through approved mortgage brokers. A mortgage broker such as Morning Star obtains loan funds on behalf of its customers from a "warehouse line of credit" established with the warehouse lender. The mortgage note resulting from such transactions is usually sold to other financial institutions soon after close of the sale of property that is subject to the mortgage. Upon sale of the mortgage note to an investor, the warehouse lender is typically repaid the amount owing on the note by the mortgage broker.
Regions, the initial plaintiff in this action, is in the business of providing warehouse loans. (Complt. ¶ 6.) On April 4, 2000, Regions and Morning Star entered into a Warehouse Security Agreement and warehouse line of credit. (Id. ¶ 9.) According to the agreement, Regions would fund mortgage loans originated by Morning Star. The funding of loans specified by Morning Star was effectuated by Regions's wire transferring the requested amount into the escrow account of Morning Star's settlement agent, defendant W & M. (Id. ¶¶ 9-11.) The funds transferred into W & M's escrow account on behalf of Morning Star were to be used to fund previously specified underlying loans. (3d-Party Complt. ¶ 13.)
Between April 10 and April 12, 2000, in three separate transactions, Regions advanced a total of $798,720 to W & M's escrow account for the purpose of funding loans specified by Morning Star. (Complt. ¶¶ 15-25.) In the first transaction on April 10, 2000, Regions transferred a sum *438 of $171,720 to W & M's escrow account for the alleged purpose of funding a loan to Mr. Aguado ("Aguado loan")[2]. Again, on April 12, 2000, Regions transferred a second sum of $465,000 to W & M's escrow account for the purpose of funding a loan to Mrs. Crawford ("Crawford loan"). Finally, on April 13, Regions transferred a sum of $162,000 to W & M's escrow account for the purpose of funding a loan to Mr. Graziosi ("Graziosi loan"). W & M received instructions as to the loans and the amounts wired into the escrow account from Morning Star. (3d-Party Complt. ¶¶ 14-17.)
On April 10, 2000, Daidone notified W & M by fax that the Aguado loan was not going to close and that the money for that loan was sent in error. Daidone instructed W & M to return the funds to Provident, falsely stating that Provident was the warehouse lender and originator of the loan. Daidone provided wiring and account numbers. (Id. ¶¶ 18, 21.) Pursuant to this instruction and allegedly in ignorance, W & M transferred the funds to Morning Star's private account at Provident on April 11, 2000.[3] (Id. ¶ 20; Complt. ¶ 31.) On April 12, 2000, Daidone contacted W & M, advising that there was an error with respect to the Crawford and Graziosi loans, and again instructing W & M to wire the funds to Provident. (3d-Party Complt. ¶ 21.) W & M complied with this request. As a result of these transactions, W & M transferred the $798,720 that Regions advanced on behalf of Morning Star to Morning Star's account at Provident.
Soon after the transfer of the above funds to Provident, Regions contacted W & M and allegedly informed W & M for the first time that the funds originated from Regions and not from Provident. (Id. ¶ 22.) In response, W & M instructed Provident to wire the funds back to the escrow account so that they could be returned to Regions. Provident refused. (Id. ¶ 24.)
The FBI began investigating Morning Star's activities sometime prior to April 4, 2000.[4] The investigation revealed that Morning Star defrauded Provident of approximately $1,800,000 either by pledging no collateral to obtain loans, or by pledging collateral which it had already pledged to secure funds from another warehouse lender. (Id. ¶ 28.) The FBI investigation also revealed that Morning Star had secured funds for loans by submitting fraudulent documents. (Id. ¶ 29.) Provident allegedly learned of potentially fraudulent activity by Morning Star sometime around April 4, 2000, and shortly thereafter demanded repayment of the $1,800,000 outstanding on Morning Star's line of credit (Id. ¶¶ 30, 31.) The FBI's investigation of Morning Star also revealed that the company *439 had fraudulently obtained funds from Regions.[5] (Id. ¶ 32.)
On or about April 13, 2000, Daidone instructed Provident to remove the funds in her private account and apply them as a set-off to the $1,800,000 warehouse line of credit held by Morning Star. (3d-Party Complt. ¶ 25.) Although allegedly aware of potential fraud by Morning Star, Provident withdrew the funds and applied them as a set-off to Morning Star's line of credit. (Id. ¶ 26.)
On June 30, 2000, Regions filed a complaint in the United States District Court for the Northern District of Georgia, Atlanta Division (docket number 1 00-CV-1646) ("Georgia action"), against Provident and Morning Star alleging, inter alia, unjust enrichment, conversion and receipt of stolen property by Provident, and breach of contract, breach of legal duty, conversion and fraud by Morning Star. That action is ongoing. On January 8, 2001, Regions filed this action in the Southern District of New York against W & M.[6] W & M then filed a Third-Party Complaint against Provident and Morning Star, seeking contribution for any judgment Regions recovered against W & M.

DISCUSSION

I. Dismissal or Stay in Favor of a First-Filed Action

The Supreme Court has recognized that "the power to stay proceedings is incidental to the power in every court to control the disposition of the causes on its docket." Landis v. North American Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936). In order to promote judicial economy, if competing cases are filed in two federal courts, "the general principle is to avoid duplicative litigation." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976).
In keeping with this general principle, the Second Circuit has long followed the "first-filed rule" in deciding whether a case should be stayed or dismissed in favor of a case pending in another federal court. See William Gluckin & Co. v. International Playtex Corp., 407 F.2d 177, 178 (2d Cir.1969); Mattel, Inc. v. Louis Marx & Co., 353 F.2d 421, 423 (2d Cir.1965). Under this rule, where two actions involve substantially the same issues, "the first suit should have priority, `absent the showing of a balance of convenience in favor of the second action, or unless there are special circumstances which justify giving priority to the second.'" William Gluckin & Co., 407 F.2d at 178 (quoting Remington Prods. Corp. v. American Aerovap, Inc., 192 F.2d 872, 873 (2d Cir. 1951)); Berisford Capital Corp. v. Central States, Southeast and Southwest Areas Pension Fund, 677 F.Supp. 220, 222 (S.D.N.Y.1988). The purposes of this rule are to "avoid duplication of judicial effort, avoid vexatious litigation in multiple forums, achieve comprehensive disposition of litigation among parties over related issues, and eliminate the risk of inconsistent adjudication." Marshak v. Reed, 2001 WL 668656, *2, 13 Fed.Appx. 19 (2d Cir.2001). Ultimately, "[t]he decision whether or not to stay or dismiss a proceeding rests within a district judge's discretion." Adam v. Jacobs, 950 F.2d 89, 92 (2d Cir.1991) (citing Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183-84, 72 S.Ct. 219, 96 L.Ed. 200 (1952)).

*440 II. First-Filed Rule in the Instant Action

Provident argues that this Court should stay or dismiss the entire secondfiled action, or, alternatively, the Third-Party Complaint, in favor of the Georgia action under the first-filed rule. (3d Party Def. Mem. Supp. Mot. Dismiss at 7.) W & M, on the other hand, argues that a stay of the Third-Party Complaint is inappropriate because their complaint involves issues and parties different from the Georgia action.[7] Regions also responds to Provident's motion for a stay, arguing that because W & M is not amenable to suit in Georgia, this Court should not stay the original complaint.
We first consider a stay of W & M's Third-Party Complaint, the primary focus of Provident's motion to dismiss. W & M's claim for contribution from Provident involves the same issues as Regions's claims against Provident in the Georgia action. Both ultimately turn on a determination of Provident's culpability in the transactions at issue. In their pleadings, W & M acknowledges that their claim for contribution rests on finding Provident liable for the damages suffered by Regions. "The basic requirement for contribution is that the culpable parties must be subject to liability for damages for the same injury to property...." (3d-Party Pls. Mem. Opp. Mot. Dismiss at 4.) W & M's basic argument in favor of contribution is that Provident is responsible for a share of the damages suffered by Regions.[8] This is precisely the issue before the Georgia court. Litigating Provident's liability to Regions would only duplicate the work of the Georgia court. Staying the Third-Party Complaint would therefore promote the principles of "judicial economy and comprehensive disposition of litigation." Curtis v. Citibank, 226 F.3d 133, 138 (2d Cir.2000) (quoting Kerotest, 342 U.S. at 183, 72 S.Ct. 219). It would also protect Provident from the considerable expense and vexation of duplicative litigation. See Adam, 950 F.2d at 93; Kellen Co., Inc. v. Calphalon Corp., 54 F.Supp.2d 218, 221 (S.D.N.Y.1999) (citation omitted).[9]
We also find that the interests of judicial economy weigh in favor of staying the entire action before this Court. If Regions succeeds against Provident in the Georgia action, a decision in this Court will be rendered unnecessary. A finding of liability on the part of Provident in Georgia will allow Regions to collect the entire amount transferred in the transactions at issue and will eliminate the need to proceed against W & M. In that event, if this action has not been stayed pending resolution of the Georgia action, the parties to this action will have wasted considerable time and money and there will have been *441 an unnecessary imposition on the limited resources of this Court.
Regions argues that this Court should not stay the entire action because they can not make W & M a party in the Georgia action. (Pl. Mem. Opp. Mot. Dismiss at 3-4.) However, we note that the first-filed rule may apply even if the two actions at issue involve different parties. See Marshak, 2000 WL 668656, at *3, 13 Fed.Appx. 19 ("An injunction may properly issue to effectuate the policies of the first-filed rule even where the parties are not identical.") (internal quotations omitted). We also point out that a finding of no liability for Provident in the Georgia action will not subsequently bar Regions from proceeding here against W & M. Because W & M is not a party in the Georgia action, and the claims against W & M differ from those against Provident, a decision in that court will not estop Regions from litigating its claims against W & M before this Court in the future.[10] In issuing a stay, we do not remove this action from our docket, but merely await a decision in the first-filed action that could render this action unnecessary. Any prejudice resulting from such delay is greatly outweighed by considerations of judicial economy and avoiding unnecessary litigation expenses for the parties.

CONCLUSION
For the reasons stated above, the portion of Provident's motion seeking to stay the entire action before this Court pending the determination of Regions Bank v. Provident Bank, Inc. et al., 1 00-CV-1646, in the Northern District of Georgia, is granted. We do not reach the merits of Provident's motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6) at this time.
SO ORDERED.
NOTES
[1]  For the purposes of this motion, the facts have been gleaned from the Complaint, the Third-Party Complaint and the Third-Party Plaintiffs' Memorandum of Law in Opposition to the Third-Party Defendant's Motion to Dismiss.
[2]  In its Complaint, Regions alleges that each loan contained specific wiring instructions, including "the amount to be wired, the specific investor for each Loan being funded, the specific underlying loan number for each Loan being funded, and the account to which the funds would be wired to." (Complt. ¶ 12.)
[3]  W & M alleges that it did not learn that the money was transferred to Morning Star's private account, rather than a warehouse account, until after they were contacted by Regions.
[4]  There are conflicting statements concerning the time that the FBI investigation commenced. The Third-Party Complaint states that the investigation began on April 4, 2000. (3d-Party Complt. ¶ 27.) However, given the later allegations in the Complaint (e.g. that Provident was made aware of potential fraud by the FBI "on or about April 4, 2000" (id. ¶ 30)), it is clear that the investigation began before April 4, 2000.
[5]  The pleadings are unclear as to when the FBI actually began investigating Morning Star's activities with respect to Regions.
[6]  W & M is evidently not subject to the jurisdiction of the Georgia court.
[7]  Although arguing that a stay is inappropriate, W & M consents to a stay if it involves the entire action before this Court. (3d-Party Pls. Mem. Opp. Mot. Dismiss at 14.)
[8]  W & M further frames the issue before this Court as "whether Provident & W & M are liable to Regions, thus allowing W & M to seek contribution from Provident ...." (3d-Party Pls. Mem. Opp. Mot. Dismiss at 6 (emphasis added)).
[9]  W & M also argues that this Court does not have jurisdiction to apply the first-filed rule. (3d-Party Pls. Mem. Opp. Mot. Dismiss at 11.) This argument is flawed. The cases that W & M points to in support of their argument discuss the issuing of an injunction against another federal court. In this case, we merely consider whether it is appropriate for us to stay the action before our own Court. Our decision in no way impacts the proceeding before the Georgia court. Contrary to W & M's argument, the discretion to stay a proceeding is inherent in this Court's power. See Landis, 299 U.S. at 254, 57 S.Ct. 163.
[10]  Similarly, a finding of no liability for Provident in the Georgia action will not estop W & M from litigating the contribution claims against Provident contained in their Third-Party Complaint.


J-S77017-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ADOPTION OF: A.L.W., a Minor              IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA

APPEAL OF: J.L.W., Father                       No. 655 MDA 2016

              Appeal from the Order entered March 8, 2016, in the
                   Court of Common Pleas of Mifflin County,
                       Orphans’ Court, at No. 22 of 2015.

                                                 IN THE SUPERIOR COURT OF
IN RE: ADOPTION OF: E.M.W., a Minor                    PENNSYLVANIA

APPEAL OF: J.L.W., Father                       No. 656 MDA 2016

              Appeal from the Order entered March 8, 2016, in the
                   Court of Common Pleas of Mifflin County,
                       Orphans’ Court, at No. 2015-00021

BEFORE: PANELLA, OLSON, and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                       FILED DECEMBER 02, 2016

        Appellant, J.L.W. (hereinafter “Father”), appeals from the orders

entered on March 8, 2016, denying his petitions to involuntarily terminate

the parental rights of C.L.W. (hereinafter “Mother”) to their minor children

A.L.W. (born in August 2007) and E.M.W. (born in July 2005) (hereinafter,

collectively “the Children”). We affirm.

        On July 6, 2015, Father filed separate petitions to terminate Mother’s

parental rights to the Children.    Within the petitions, Father claimed that

*
    Retired Senior Judge assigned to the Superior Court.
J-S77017-16

Mother’s parental rights to the Children should be terminated pursuant to 23

Pa.C.S.A. § 2511(a)(1) because:

        a. . . . Mother has not spent time with [the Children] since
        May 10, 2014.

        b. From November 12, 2011 until May 10, 2014 (a period of
        910 days . . . ), Mother saw the [Children] on approximately
        six [] occasions.

        c. The occasions mentioned above on which Mother has
        seen the [Children] have historically been one to two hour
        visits at a public park.

        d. During the visits[,] Mother and [the Children] interact
        very little.

        e. . . . Mother has had less than eight [] meaningful
        telephone conversations with [the Children] since October
        2013 to the present, a period of approximately [20]
        months.

        f. . . . Mother has had no involvement in the [Children’s]
        educational development. . . .

        g. . . . Mother has had no involvement in the [Children’s]
        medical care and treatment for a period in excess of five []
        years.

        h. Mother has not performed day-to-day parental
        responsibilities such as getting the [Children] out of bed;
        ensuring the [Children’s] proper hygiene; providing or
        arranging childcare, transporting the [Children] to [their]
        community-based[] social events and/or attending the
        same; establishing a supportive, loving[,] and nurturing
        emotional bond with the [Children]; etc., for a period in
        excess of five [] years.

        i. For a period in excess of five [] years, Mother has
        demonstrated only a passive interest at best in the
        [Children] and has refused and/or failed to undertake an
        active role and a position of importance in [the Children’s
        lives].

                                   -2-
J-S77017-16

        j. Mother’s child support order was suspended on June 25,
        2013, nearly two years ago, and she has failed to provide
        financial support for the [Children] since prior to that time.
        Prior to the suspension of [] the support obligation, Mother’s
        support arrearages were in excess of [$5,000.00].

        k. Mother has evidenced a settled purpose of relinquishing
        her parental claim and has refused and/or failed to perform
        any meaningful parental duties for the [Children] by
        conduct continuing for at least six [] months.

Father’s Petition to Terminate Mother’s Parental Rights to A.L.W., 6/6/15, at

2-4; Father’s Petition to Terminate Mother’s Parental Rights to E.M.W.,

6/6/15, at 2-4.

      On December 15, 2015, the trial court held a hearing on Father’s

petitions.   As the trial court explained, during the hearing the parties

presented the following evidence:

        Father and Mother separated . . . in late 2007 to early 2008
        and divorced by official decree [on] March 26, 2009.

        Following divorce, Father began seeing [D.W.] in mid-
        summer 2008 and married [D.W. in] July[] 2011. Following
        [Father and] Mother’s separation, Father maintained a
        calendar illustrating when Mother exercised her rights to see
        the [C]hildren. The calendar reflects that, in 2008, Mother
        visited regularly; in 2009, Mother visited [41] times; in
        2010, the visits decreased towards the end of the year
        (showing one visit in October, in November, and in
        December); in 2011, four visits; in 2012, two visits; in
        2013, three visits; in 2014, one visit; and in 2015, no visits.

        [A custody order entered in 2007] required that Mother’s
        visits be supervised in [the home of B.P., the maternal
        grandmother (hereinafter “Maternal Grandmother”)] and
        [that] the visits [were] to occur once a week for two hours[.
        This] order changed slightly in 2008 by maintaining

                                     -3-
J-S77017-16

       supervision, but no longer limiting Mother’s visits to
       [Maternal Grandmother’s] home. . . .

       According to Mother’s own testimony, the requirement for
       supervision arose following a Children and Youth [Services
       (hereinafter “CYS”)] investigation that concluded that she
       could not meet the basic needs of a child. However, Mother
       testified that [CYS] never removed [the Children] from her
       care and that she was never charged with child abuse
       crimes. . . .

       In 2014, Father’s parents filed a custody action resulting in
       Mother being required to contact Father if she wished to see
       or communicate with [the Children]. Initially, [D.W.] did
       not attend visits, as [Maternal Grandmother] would not let
       her in her home. However, [D.W.] joined the visitations in
       the later years and observed Mother taking pictures of [the
       Children]. Further[,] first-hand observations by Mother’s
       relatives indicate that, at the last visitation in 2014,
       Mother[] and Mother’s other two daughters interacted
       positively with [the Children and] that Mother was warm,
       loving, and interactive.

       [Father also] maintained records reflecting that, in the six
       months prior to filing the July 6, 2015 petitions to terminate
       Mother’s parental rights, Mother had not called [or] left a
       voicemail with Father[;] however, Father’s records from
       Verizon ended [in March 2015]. Notwithstanding his phone
       records, Father testified that Mother texts, stating that she
       loves and misses the [C]hildren and asks that they call her.
       Father supplemented this by stating that, in the six months
       prior to the filing of the petitions, Mother texted him,
       inquiring about the [C]hildren, once per week. Further,
       [K.L.] (Mother’s sister) [(hereinafter “Mother’s Sister”)],
       who receives Mother’s cell phone bill, verified that Mother
       contacts Father via text many times and that her records
       show that Father sometimes fails to respond to the text
       messages.

       Father testified that Mother and her family historically buy
       Christmas gifts for [the Children]. [Mother’s Sister] further
       testified that Mother and her family bought Christmas
       presents for [the Children from 2011 through 2015], and
       that these gifts were given to [B.H.] ([the C]hildren’s great-

                                   -4-
J-S77017-16

       grandmother), to give to Father. Mother corroborated this
       by stating that she buys the [C]hildren Christmas gifts and
       has sent cards. Further, Mother testified that she tried to
       arrange a visit with [the Children] in Christmas of 2014, but
       that Father refused and would only meet with Mother’s
       grandmother.

       In addition to trying to organize a visit over Christmas in
       2014, Mother testified that she tried to schedule a visit for
       Mother’s Day [in] 2015 [with the Children], but Father
       refused. And while Mother acknowledged that, in the past,
       Father tried to provide suitable accommodations for visits if
       he could not coordinate with the times Mother wanted, over
       the past six months[] Father would propose times that were
       inappropriate for [the Children,] who are in school all day.
       For example, Mother testified that Father would propose
       that her visits with the [C]hildren occur from 6:00 [to] 8:00
       p.m. during the week and that Mother believed that the
       [C]hildren should be “unwinding” during that time, eating
       dinner, and bathing.      Mother testified that she wanted
       weekend visits so as not to interfere with the [C]hildren’s
       schooling.

       Father testified that Mother never requested a change in
       custody and that Mother had ample opportunity to do so
       when Father’s parents petitioned the court for custody.
       Father testified that, notwithstanding Mother attending two
       proceedings relating to the 2014 custody case, that Mother
       never met with the [C]hildren’s guardian ad litem
       [(hereinafter “GAL”)], Stuart Cilo, nor did she actively
       participate in the proceedings[.      I]n contrast, Father,
       Father’s parents, and [D.W] all met with the [C]hildren’s
       GAL. . . .

       In response, Mother testified that she did not meet with
       [the GAL], that he did call her, and that she returned the
       call, left a message with his secretary, and never received a
       return call. Mother further testified that she did not relay
       her concerns about not being able to see the [C]hildren to
       [the GAL] because she perceived it to be irrelevant to the
       custody case at issue. In addition, Mother testified that she
       tried to alter the custody visits by, first, contacting the
       [C]hildren’s original GAL, Nancy Searer and[,] two, when
       Ms. Searer informed Mother that she was no longer involved

                                   -5-
J-S77017-16

          in the case, Mother tried to contact an attorney, but could
          not afford one. Mother testified that she was unaware that
          she could proceed without an attorney.

Trial Court Opinion, 3/8/16, at 1-5 (internal citations omitted) (some internal

capitalization omitted).

        On March 8, 2016, the trial court entered orders denying Father’s

petitions to terminate Mother’s parental rights. Father filed timely notices of

appeal and now raises the following claims to this Court:

          1. Were the trial court’s findings regarding Mother’s
          attempts to maintain a relationship and bond with the
          [C]hildren and attempts to meet the emotional needs of the
          [C]hildren supported by competent evidence of record such
          that termination of parental rights is not warranted?

          2. Did the trial court abuse its discretion by concluding that
          Mother adequately fulfilled her parental duties given the
          lack of contact between Mother and the [C]hildren, Mother’s
          failure to use any resources to address Father’s alleged
          obstruction of her visits, and Mother’s mere passive interest
          in the [C]hildren’s development?

          3. Did the trial court commit an error of law in excusing
          Mother’s failure to pursue legal relief based on her
          allegations that she did not realize she could participate
          while attending custody proceedings involving [the
          C]hildren, Father, and paternal grandparents?

          4. Did the trial court, in considering the [C]hildren’s
          developmental, physical and emotional needs and welfare,
          commit an abuse of discretion in finding that Mother had an
          emotional bond with the [C]hildren and that the parental
          relationship was “existing, necessary, and beneficial?”

Father’s Brief at 4-5.1

1
    For ease of discussion, we have re-ordered Father’s claims on appeal.

                                      -6-
J-S77017-16

     In reviewing an appeal from an order terminating parental rights, we

adhere to the following standard:

        [A]ppellate courts must apply an abuse of discretion
        standard when considering a trial court’s determination of a
        petition for termination of parental rights.              As in
        dependency cases, our standard of review requires an
        appellate court to accept the findings of fact and credibility
        determinations of the trial court if they are supported by the
        record. In re: R.J.T., 9 A.3d 1179, 1190 (Pa. 2010). If the
        factual findings are supported, appellate courts review to
        determine if the trial court made an error of law or abused
        its discretion. Id.; R.I.S., [36 A.3d 567, 572 (Pa. 2011)
        (plurality opinion)]. As has been often stated, an abuse of
        discretion does not result merely because the reviewing
        court might have reached a different conclusion. Id.; see
        also Samuel Bassett v. Kia Motors America, Inc., 34
        A.3d 1, 51 (Pa. 2011); Christianson v. Ely, 838 A.2d 630,
        634 (Pa. 2003). Instead, a decision may be reversed for an
        abuse of discretion only upon demonstration of manifest
        unreasonableness, partiality, prejudice, bias, or ill-will. Id.

        As [the Pennsylvania Supreme Court] discussed in R.J.T.,
        there are clear reasons for applying an abuse of discretion
        standard of review in these cases. [The Supreme Court]
        observed that, unlike trial courts, appellate courts are not
        equipped to make the fact-specific determinations on a cold
        record, where the trial judges are observing the parties
        during the relevant hearing and often presiding over
        numerous other hearings regarding the child and parents.
        R.J.T., 9 A.3d at 1190. Therefore, even where the facts
        could support an opposite result, as is often the case in
        dependency and termination cases, an appellate court must
        resist the urge to second guess the trial court and impose
        its own credibility determinations and judgment; instead we
        must defer to the trial judges so long as the factual findings
        are supported by the record and the court’s legal
        conclusions are not the result of an error of law or an abuse
        of discretion. In re Adoption of Atencio, 650 A.2d 1064,
        1066 (Pa. 1994).

In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012).

                                     -7-
J-S77017-16

     The burden is upon the petitioner to prove by clear and convincing

evidence that the asserted grounds for seeking the termination of parental

rights are valid. In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009).

     Moreover, we have explained:

        [t]he standard of clear and convincing evidence is defined
        as testimony that is so “clear, direct, weighty and
        convincing as to enable the trier of fact to come to a clear
        conviction, without hesitance, of the truth of the precise
        facts in issue.”

Id., quoting In re J.L.C., 837 A.2d 1247, 1251 (Pa. Super. 2003).

     In the case at bar, Father petitioned to terminate Mother’s parental

rights under 23 Pa.C.S.A. §§ 2511(a)(1) and (b). These sections provide:

     § 2511. Grounds for involuntary termination

        (a) General rule.--The rights of a parent in regard to a
        child may be terminated after a petition filed on any of the
        following grounds:

           (1) The parent by conduct continuing for a period of at
           least six months immediately preceding the filing of the
           petition either has evidenced a settled purpose of
           relinquishing parental claim to a child or has refused or
           failed to perform parental duties.

                                     ...

        (b) Other considerations.--The court in terminating the
        rights of a parent shall give primary consideration to the
        developmental, physical and emotional needs and welfare of
        the child. The rights of a parent shall not be terminated
        solely on the basis of environmental factors such as
        inadequate housing, furnishings, income, clothing and
        medical care if found to be beyond the control of the parent.
        With respect to any petition filed pursuant to subsection
        (a)(1), (6) or (8), the court shall not consider any efforts by
        the parent to remedy the conditions described therein which

                                     -8-
J-S77017-16

        are first initiated subsequent to the giving of notice of the
        filing of the petition.

23 Pa.C.S.A. § 2511.

     We have explained this Court’s review of a challenge to the sufficiency

of the evidence supporting the involuntary termination of a parent’s rights

pursuant to section 2511(a)(1) as follows:

        To satisfy the requirements of section 2511(a)(1), the
        moving party must produce clear and convincing evidence
        of conduct, sustained for at least the six months prior to the
        filing of the termination petition, which reveals a settled
        intent to relinquish parental claim to a child or a refusal or
        failure to perform parental duties.

                                     ...

        Once the evidence establishes a failure to perform parental
        duties or a settled purpose of relinquishing parental rights,
        the court must engage in three lines of inquiry: (1) the
        parent’s explanation for his or her conduct; (2) the post-
        abandonment contact between parent and child; and (3)
        consideration of the effect of termination of parental rights
        on the child pursuant to Section 2511(b).

In re Z.S.W., 946 A.2d 726, 730 (Pa. Super. 2008) (internal citations

omitted).

        [T]o be legally significant, the [post-abandonment] contact
        must be steady and consistent over a period of time,
        contribute to the psychological health of the child, and must
        demonstrate a serious intent on the part of the parent to
        recultivate a parent-child relationship and must also
        demonstrate a willingness and capacity to undertake the
        parental role. The parent wishing to reestablish his parental
        responsibilities bears the burden of proof on this question.

                                    -9-
J-S77017-16

In re Z.P., 994 A.2d 1108, 1119 (Pa. Super. 2010) (internal citation

omitted); see also In re Adoption of C.L.G., 956 A.2d 999, 1006 (Pa.

Super 2008) (en banc).

      Further, regarding the definition of “parental duties,” this Court has

stated as follows:

        There is no simple or easy definition of parental duties.
        Parental duty is best understood in relation to the needs of
        a child. A child needs love, protection, guidance, and
        support. These needs, physical and emotional, cannot be
        met by a merely passive interest in the development of the
        child. Thus, this court has held that the parental obligation
        is a positive duty which requires affirmative performance.

        This affirmative duty encompasses more than a financial
        obligation; it requires continuing interest in the child and a
        genuine effort to maintain communication and association
        with the child.

        Because a child needs more than a benefactor, parental
        duty requires that a parent exert himself to take and
        maintain a place of importance in the child’s life.

        Parental duty requires that the parent act affirmatively with
        good faith interest and effort, and not yield to every
        problem, in order to maintain the parent-child relationship
        to the best of his or her ability, even in difficult
        circumstances. A parent must utilize all available resources
        to preserve the parental relationship, and must exercise
        reasonable firmness in resisting obstacles placed in the path
        of maintaining the parent-child relationship. Parental rights
        are not preserved by waiting for a more suitable or
        convenient time to perform one’s parental responsibilities
        while others provide the child with . . . her physical and
        emotional needs.

In re B., N.M., 856 A.2d 847, 855 (Pa. Super. 2004).

                                    - 10 -
J-S77017-16

      Within the trial court’s opinion to this Court, the trial court ably

explained why it concluded that Father “did not, by clear and convincing

evidence, establish the termination ground found in § 2511(a)(1) relative to

Mother.” Trial Court Opinion, 3/8/16, at 6. As the trial court explained:

        Under the totality of the circumstances, [the trial court]
        does not find sufficient evidence proving either a “settled
        purpose of relinquishing parental claim” or a “refus[al] or
        fail[ure] to perform parental duties” on behalf of Mother.
        The [trial] court finds that Mother did attempt to coordinate
        visits with [the Children] on both Christmas 2014 and
        Mother’s Day 2015, and while Father provided phone
        records reflecting Mother’s failure to consistently call,
        Father’s records end in March of 2015, not July of 2015.
        Further, even if phone records illustrate that Mother failed
        to call in the six months prior to the filing, [the trial] court
        finds that Mother texted Father about the [C]hildren to
        convey loving messages. Mother and her family also buy
        Christmas gifts for the [C]hildren and appear to have
        continued that tradition since Mother and Father separated.
        ...

        Parental duties “encompass[] more than financial
        obligation; [they] require[] continuing interest in the child
        and a genuine effort to maintain communication and
        association with the child. In re C.M.S., 832 A.2d 457, 462
        (Pa. Super. 2003). . . . [The trial] court finds that Mother
        satisfied this test. And while Mother did not file a petition to
        modify the current custody arraignment, [the trial] court is
        satisfied that Mother truly believed that her visitation
        concerns were inappropriate to raise at the 2008 custody
        hearing and that she believed that she needed an attorney
        to alter the arraignment.

Trial Court Opinion, 3/8/16, at 6-7 (some internal capitalization omitted).

      Further, with respect to section 2511(b), the trial court concluded that

terminating Mother’s parental rights would not serve the Children’s best

interests. According to the trial court:

                                     - 11 -
J-S77017-16

        Having found that Father failed to establish, by clear and
        convincing evidence, the termination ground stated in
        § 2511(a)(1), [the trial] court further concludes that
        terminating Mother’s parental rights would not serve the
        [C]hildren’s best interests. [The trial] court must give
        “primary determination” to the [C]hildren’s “developmental,
        physical, and emotional needs” and must examine
        “intangibles such as love, comfort, security, and stability”. .
        . .   Of critical concern are the [C]hildren’s needs and
        welfare. . . .

        Here, [the trial] court looked at the emotional bond between
        Mother and [the Children] . . . [and concluded] that
        severing the parental ties “would destroy an existing,
        necessary and beneficial relationship.” In re Adoption of
        T.B.B., 835 A.2d 387, 397 (Pa. Super. 2003). Mother and
        her extended family demonstrably try to maintain a
        relationship with [the Children] despite not having had a
        scheduled visit since 2014. Mother texts Father to convey
        loving messages to [the Children], tried to arrange visits,
        sends Christmas gifts in care of the [C]hildren’s great-
        grandmother, and when visits were organized, Mother and
        all four of her children positively interacted. Testimony also
        indicates that Mother wished to see [the C]hildren on
        holidays as recent as Mother’s Day 2015. Based upon
        Mother’s efforts to maintain a relationship with [the
        C]hildren, [the trial] court finds that severing the tie
        between them would not serve the best interests of the
        [C]hildren.

Trial Court Opinion, 3/8/16, at 7-8 (some internal capitalization omitted).

      Within the “statement of questions involved” section of Father’s brief,

Father lists four separate claims of relief.     See Father’s Brief at 4-5.

However, the argument section of Father’s brief is not divided into separate

parts. See Father’s Brief at 11-24. In fact, within the argument section of

Father’s brief, Father simply argues that the trial court should have viewed

his evidence more favorably, viewed Mother’s action and inaction towards

                                    - 12 -
J-S77017-16

the   Children   more   unfavorably,    and     mistakenly   “overlooked”   certain

evidence that Father put forth. See id. In other words, Father’s claim on

appeal is simply a challenge to the weight of the evidence.           Yet, as our

Supreme Court has explained:

         appellate courts are not equipped to make the fact-specific
         determinations on a cold record, where the trial judges are
         observing the parties during the relevant hearing and often
         presiding over numerous other hearings regarding the child
         and parents. Therefore, even where the facts could support
         an opposite result, as is often the case in dependency and
         termination cases, an appellate court must resist the urge
         to second guess the trial court and impose its own
         credibility determinations and judgment; instead we must
         defer to the trial judges so long as the factual findings are
         supported by the record and the court’s legal conclusions
         are not the result of an error of law or an abuse of
         discretion.

In re Adoption of S.P., 47 A.3d at 826-27 (internal citations omitted).

      In the case at bar, all of the trial court’s factual findings are supported

by the record; and, since Father’s claim on appeal is simply a request that

this Court reweigh the evidence in his favor and arrive at different credibility

determinations than did the trial court, we conclude that Father’s claim on

appeal necessarily fails. Id.

      Order affirmed. Jurisdiction relinquished.

                                       - 13 -
J-S77017-16

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/2/2016

                          - 14 -