author: HODGE, J.,

text:
    McClymonds v. McClymonds

      C.R of Lawrence County,
    nos. 10547 of 2009, C.A. and 251 of 2009, D.R.

      Greg S. Fox, for plaintiff.

      Sally R. Miller and Chrystal C. Tinstman, for defendant.
    December 21, 2010
   HODGE, J.,

This case was before the court on September 3, 2010 for a complex support hearing and a hearing on a petition for contempt filed on behalf of the plaintiff, Robert G. McClymonds (hereinafter “husband”).

The parties have been married since November 18, 1961. However, on April 3, 2009, husband filed a complaint in divorce, alleging that the marriage was irretrievably broken. Subsequent to the complaint in divorce being filed, the defendant, Janice L. McClymonds (hereinafter “wife”), filed a petition raising economic claims, which specifically requested this court to: 1) effectuate an equitable distribution of marital property, pursuant to 23 Pa.C.S.A. §3502; 2) enter an award of spousal support and/ or alimony pendent elite; 3) enter an award of alimony; 4) require husband to maintain all insurance contracts/ policies for the benefit of wife and the parties’ children; 5) grant wife exclusive possession of the marital residence; and 6) require husband to reimburse wife for any attorney’s fees incurred as a result of the ongoing litigation.

On May 12, 2009, the domestic relations section of Lawrence County determined that husband pay wife monthly support in the amount of $1,044.40 and that the total arrearages due, equaling $569.79 were due immediately. Thereafter, on January 7, 2010, husband filed a motion to modify support order in which husband requested to receive credit towards his support obligation for making several payments on the home equity loan. This court issued a rule to show cause why the support order dated May 12, 2009 should not be modified to provide that if husband makes the home equity payments, then he shall receive a credit towards his support obligation. Wife was required to answer by rule returnable within 20 days of service.

On March 4, 2010 wife also filed a motion to modify support order, claiming she was entitled to an increase in support as husband’s income had increased and requesting that the domestic relations section also address the mortgage and order expenses in the support order. Husband responded on March 8, 2010 by filing a petition for contempt alleging that wife failed to modify the support order. A hearing was scheduled for March 31, 2010 on husband’s petition for contempt.

Shortly thereafter, on March 16, 2010 wife filed a motion to declare case complex, which this court granted and rescheduled a hearing for June 11, 2010. Wife also filed a petition to invade marital assets to protect the marital estate. In her petition, wife alleged that the support order entered on May 12, 2009 failed to include income earned by husband in a machine shop that he operated in the garage of the marital property. Wife additionally requested this court to permit her to use marital funds to pay for property taxes and homeowner’s insurance, for an appraisal of the aforementioned machine shop and remaining marital property, and to generally maintain the marital property until a final equitable resolution. This court granted wife’s requests, in part, by allowing marital funds to pay for appraisals and listing the marital residence for sale. A conciliation conference was also scheduled for May 3, 2010.

The conciliation conference took place as scheduled, whereby the parties agreed that marital funds pay the property taxes on the marital residence and that that said expense would be credited to wife at the time of equitable distribution. The remaining issues are of whether or not marital funds should be used: 1) to pay homeowner’s insurance; 2) to maintain the marital residence; 3) for snow removal; and 4) to repair a mobile home located on the marital property so that it may be rented and generate income.

At the request of the parties, the above stated issues as well as husband’s petition for contempt were consolidated and eventually heard before this court on August 3, 2010.

The first issue before the court for disposition is husband’s petition for contempt. In his petition for contempt, husband is seeking to have any payments he personally made towards the parties’ home equitable loan be credited to him, as wife has failed since April of 2009 to make said payments. The May 12, 2009 support order required wife to make the home equity loan payments, however, wife was unable to so husband has assumed the responsibility of making the payment to avoid threats of foreclosure on the martial residence.

In any civil contempt proceeding, the complaining party must prove by a preponderance of the evidence that the other party has violated an order of court. Chrysczanavicz v. Chrysczanavicz, 796 A.2d 366 (Pa. Super. 2002). A party will be found in civil contempt if it is shown that the contemnor’s failure to comply with the support order is willful and there is a present ability to pay. Likewise, a contempt may not be found where the contemnor has demonstrated a good faith attempt to comply with the order, and does not have the present ability to pay. Pa.R.C.P. Rule 1910.251(b); Godfrey v. Godfrey, 894 A.2d 776 (Pa. Super. 2006).

Although the evidence and testimony presented at the September 3, 2010 hearing support a finding that wife did in fact fail to comply with the support order dated May 12, 2009, the court also determines that wife did not willfully disobey the order as does she have the present ability to comply. In making such a determination, the court considers the fact that in addition to wife being responsible for the home equity payments, wife is also responsible for providing daily care and financial stability of the parties’ two adult children, who for independent reasons, are not capable of caring and providing for themselves.

Wife continues to assume this responsibility regardless of the financial hardship it may cause her, while living on a limited income provided by spousal support and social security income. Accordingly, the court finds that wife did not possess the willful intent to disobey the May 12,2009 support order that is necessary for a finding of contempt.

The court does acknowledge that husband did provide the payments for the home equity loan, which were previously calculated into the spousal support order as a deviation against husband. The court will credit the total amount paid towards his monthly support obligation.

The next issue put before the court is a determination of the parties’ net earnings capacity. Wife’s earning capacity is relatively straight forward. Wife currently receives social security income in the amount of $983.00 per month. Wife is unable to actively seek employment due to injuries relating to a driving accident occurring several years ago, and her responsibility to care for her two adult children.

Husband currently receives social security benefits in the amount of $1,825.00 per month and a monthly annuity payment equaling $834.96. Wife contends that husband consistently earned additional income working part time as a machinist, and believes that husband continues to do so. Husband refutes wife’s assertion, arguing that he is no longer able to work in his machine shop as a result of a protection from abuse order entered against him by wife barring him from the marital residence. The court agrees with husband and finds that there is insufficient evidence to establish that husband currently has the ability to earn additional income by working part time as a machinist. Additionally, husband is currently 67 years old, and it is unreasonable to expect husband to continue working solely to provide spousal support to wife, when the ability and means of earning such support no longer exist. As such, the court accepts husband’s monthly earning capacity to equal a total of $2,659.96.

Additionally, the court finds that the previous support order did not adequately provide for the special circumstances pertaining to this case. The parties have two adult children who are unable to financially provide for themselves. Their son is 47 years old and has been diagnosed with a mild learning disability. Their daughter is 38 years old and is physically incapacitated, requiring constant supervision. Throughout their marriage these parties had to financially support their children. Since separation, however, this responsibility has become the sole burden of wife.

The Pennsylvania Rules of Civil Procedure, rule 1910.19 allows for a continuation of an existing support order when a child reaches the age of eighteen and an agreement exists between the parties or a child has special needs and requires continuing support. Pa.R.C.P. Rule 1910.19(e). The court believes that there was a mutual understanding between the parties throughout the duration of marriage that they would provide for each of their special needs children. Additionally, the fact that an existing order was not in effect due to the fact that the children reached the age of eighteen does not prevent the court from considering the parties’ children in order to fashion an appropriate support order, as a parent has the continuing obligation to support an un-emancipated child even after said child reaches the age of eighteen. 23 Pa. C.S.A. §4321(3); Hanson v. Hanson 625 A.2d 1212 (Pa. Super. 1993).

The remaining issues before the court for resolution are based on wife’s petition to invade marital assets to protect the marital estate. In her petition, wife specifically requested permission to use martial funds to pay for. 1) property taxes and homeowner’s insurance; 2) an appraisal of the marital property; 3) general maintenance of the marital property; and 4) snow removal. Wife additionally requested this court to order the sale of the machine shop and list the marital property for sale. By order of court dated March 16, 2010 and with the consent of the parties, marital funds were allowed to be used for appraisal of the marital property and the machine shop/marital residence were to be listed for sale. Subsequent to the March 16, 2010 order, the parties agreed at a conciliation conference to use marital funds to pay for property tax on the marital residence. Shortly thereafter, an additional court order provided that martial property shall be used to pay for real estate taxes and insurance on the marital residence.

The remaining issues are wife’s request that marital property be used for general maintenance of the marital property, including snow removal, and that husband be required to repair the mobile trailer located on the marital residence so that said trailer may be rented out and generate income. First is wife’s request that marital property be used for the general maintenance of the marital residence. The support guidelines generally assume that the spouse occupying the marital residence has the sole responsibility of paying for costs incurred as a result; including the general maintenance, with a credit being provided to the occupying spouse at the time of equitable distribution. Pa. R.C.P. Rule 1910.16-6(e). Additionally, the spousal support currently provided to wife by husband is intended for these miscellaneous expresses that wife seeks to have paid from the marital estate. For these reasons the court is denying wife’s request to have the marital estate pay for the general maintenance of the marital property.

Wife’s additional request that husband repair the trailer located on the marital property is reasonable. The parties would only benefit from renting out the trailer, thereby incurring additional income. Husband is directed to return the mobile home to a condition adequate enough so that said trailer may be occupied by a tenant. Husband returning to the marital residence for the purposes of conducting these repairs will not be in violation of any existing protection from abuse order, provided that the general provisions that husband will not stalk, harass, threaten, or abuse wife are fully complied with.

Lastly, wife’s request for counsel fees is premature; as such request will be deferred to the master. Wife, however, has preserved her claim for counsel fees, and will be decided at the time of economic distribution.

The court will enter the attached order in accordance with this opinion.

ORDER OF COURT

And now, December 21, 2010 this case being before the court previously for a hearing on a petition for contempt and for a complex support case, with the complex support case being resolved by companion order of this court at the domestic relations case number.

After consideration of the evidence presented relative to the contempt, the court enters the following order:

1. The defendant’s/wife’s request to use the marital estate to pay for general maintenance of the marital property, including snow removal, is denied:
2. The defendant’s/wife’s request that plaintiff/husband repair the trailer located at the marital residence is granted. The husband shall make the necessary repairs to said trailer such as the trailer is in proper condition for an attendant to inhabit.
3. The defendant’s/wife’s request for attorney’s fees is preserved and shall be decided by the master at the equitable distribution hearing.
4. The provisions of the prior order of May 12, 2009, which are in compliance with Pa. R.C.P. 1910.27(e), and all other provisions are incorporated therein, are incorporated herein as though fully set forth and shall continue in full force and effect as a final order of court except as modified and supplemented by these findings and this order.
5. The prothonotary shall properly serve notice of this order by regular mail or personal service upon counsel of record and any party not represented by counsel at their last known address as contained in the court file.

ORDER OF COURT

And now, December 21, 2010, this case being before the court for a complex support hearing, with the plaintiff, Janice L. McClymonds, appearing with her attorney, Chrystal C. Tinstman, Esq., and the defendant, Robert G. McClymonds, appearing with his attorney, Gregory Fox, Esq., and after a hearing held, the court makes the within findings of facts, and enters the following order and it is hereby ordered, adjudged and decreed as follows:

1. The court assesses the plaintiff a full-time net monthly earning capacity and therefore establishes net monthly earnings in the amount of $942.05. The court makes this finding based upon the evidence and testimony presented at the hearing and the evidence submitted by the Lawrence County domestic relations section.

2. The court assesses the defendant a full-time net monthly earning capacity and therefore establishes netmonthly earnings in the amount of $2,450.72, consisting of the net, after tax income, taking into consideration the husband’s monthly Social Security benefit in the sum of $1,825.00, and a monthly annuity payment equaling $834.96. The court makes this finding based upon the evidence and testimony presented at the hearing and the evidence submitted by the Lawrence County Domestic Relations Section.

3. The court finds that the plaintiff pays health insurance at the rate of $53.00 per month. As such calculations pursuant to Pennsylvania Rule of Civil Procedure 1910.16-6(b), are made with the result that the plaintiff is entitled to an upward deviation of $38.28 per month.

4. The defendant’s spousal support obligations to the plaintiff are summarized as follows:

a. Spousal support: 40% of difference $603.47
b. Adjustment for health insurance: $38.28
Total Spousal Support: $641.75

5. Based upon the above findings of fact, it is hereby ordered, adjudged and decreed that the defendant shall pay to the Pennsylvania State Collection and Disbursement Unit the sum of $641.75 in spousal support, with the first payment due immediately and monthly thereafter until an income attachment is implemented.

6. The effective date of this order of court is March 4, 2010.

7. The Domestic Relations Section of Lawrence County is to set the amount of arrearages and the arrearages will be payable in the sum of $25.00 per month in addition to the support obligation of $641.75 per month for a total monthly payment of $666.75.

8. Any un-reimbursed medical expenses that exceed $250.00 annually per child and/or spouse are to be paid as follows:

a) 27.77% by the plaintiff;
b) 72.23% by the defendant.

9. The provisions of the prior order of May 12, 2009, which are in compliance with Pa.R.C.P. 1910.27(e); and all other provisions are incorporated therein, are incorporated herein as though fully set forth and shall continue in full force and effect as a final order of court except as modified and supplemented by these findings and this order.

10. The defendant shall receive credit against the arrearages for any payments made toward the parties’ home equity loan, said payments totaling the sum of $12,029.08, as of the date of this order.

11. The domestic relations section is directed to serve a copy of this order of court upon counsel of record, and if a party is not represented by counsel, then upon that party at their last known address as contained in the court’s file.


source: Caselaw Access Project

author: FOX, J.,

license: Public Domain

text:
    Buckley v. Feil

      C.P. of Lawrence County,
    no. 10797 of 2004, C.A.

      Norman Barilla, for plaintiff.

      Susan M. Papa, for defendant.
    December 14, 2010
   FOX, J.,

This case was before the court for a custody trial on April 21, 2010, April 22, 2010 and November 16, 2010. The parties in this case have three minor children, Kylie Marie Buckley, bom September 17, 1999, Natalie Ann Buckley, born January 23, 2001, and Kenneth Andrew Buckley, born March 28, 2002. An initial complaint for custody was filed by the plaintiff/natural father, Kenneth A. Buckley, on June 22, 2004. In his complaint, natural father alleged that natural mother is inattentive to the needs of the children and that he, natural father, could provide a more loving and stable environment for the party’s minor children.

A custody conciliation conference was immediately scheduled. Shortly thereafter, however, the conference was continued generally by the court at the request of the parties, as they had reached an amicable agreement regarding the best interests of their children. Two years later, in October of 2006 natural father again filed a complaint for custody alleging the same. A custody conciliation conference was held, whereby the court granted the parties shared legal custody and shared primary custody of their minor children in an order of court dated December 29, 2006. The parties were directed to exercise physical custody of the minor children on an alternating weekly basis, with exchanges taking place every Sunday evening. The parties were also afforded the leniency to modify the terms of the December 29, 2006 order as they could mutually agree when doing so served the best interest of the children.

The parties proceeded under the direction of the December 29,2006 order until November 17,2007, when natural mother filed a complaint for custody. The court ordered an updated custody evaluation of the parties and directed each party to contract Dr. Kirk Lunnen, of people in need, so that said evaluation could be completed. Each party completed the custody evaluation, and this case was scheduled for a custody trial on November 12, 2008. The court continued the custody trial multiple times at various requests from each of the parties. Consequently, the custody trial did not end up being until April of 2010 and was later completed in November of 2010. In the interim, the court additionally modified the December 29, 2006 order to allow natural mother to transport the children to school each day and allow her to have custody of the minor children after school until 4:00 p.m.

Extensive testimony and evidence was presented by both parties throughout the course of the custody trial, and the court having fully considered the testimony and evidences and conducted an extensive review of the applicable record in this case must now make a determination regarding the most appropriate custody arrangement for the party’s three minor children.

In any custody proceeding, the court’s primary interest is determining the best interest of the child. Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004). A best interest analysis is based upon a consideration of all factors legitimately affecting the child’s physical, intellectual, moral and spiritual wellbeing. Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004). Such consideration must be made on a case by case basis. Moore v. Moore, 535 Pa. 18, 634 A.2d 163 (Pa. 1993). The court further considers each parent’s ability to care for the needs of the minor child. A parent’s ability to care for a child must be determined at the time of the custody hearing, and not as of an earlier time. Wiseman v. Walls, 718 A.2d 844 (Pa. Super. 1998).

The court finds that each party is a loving, capable, and suitable parental figure in the children’s lives. Throughout the six years that these parties have engaged in litigation regarding the custody of their children, the children have developed well and are progressing in their academics to the court’s satisfaction. Each parent has an appropriate household the children can live, and the children seem to be comfortable and happy in both environments.

During the custody hearings, natural father went to great length to direct the court’s attention to the fact that natural mother attempted suicide in November of 2006. However, the court is persuaded that natural mother has put these actions in her past and has redirected her focus towards a healthier lifestyle for herself and towards caring and providing for her children. Additionally, the court is reassured by the fact that natural mother’s parents continue to play such a supportive role in her life, as they live next door to natural mother’s residence and enjoy seeing their grandchildren on almost a daily basis. The court believes that natural mother’s extended family also provides a great deal of love and care for the minor children, and that a continued relationship between the minor children and the material grandparents is necessary.

Furthermore, the court finds that natural mother and natural father for the most part have maintained a suitable and appropriate relationship since being separated. They are able to communicate with each other in an adult manner when the children are involved, and have consistently resolved any disputes between themselves with little involvement from the courts prior to this hearing taking place. Additionally, the court is encouraged by the fact that natural mother cares for the children after school until natural father is done working and that the parties, for the most part, have been able to modify existing orders of court to accommodate their own circumstances to that their children can be properly cared for and looked after.

For all the reasons set forth above, the court determines that the best interests of the children will be served by continuing forward with the existing custody arrangements. The children have been doing well and the court is not convinced that modifying custody the existing arrangements will be in the children’s best interests at this time. Accordingly, the court will enter the attached order, consistent with this opinion.

ORDER OF COURT

And now, December 21, 2010, this case being before the court for a custody trial, with the plaintiff, Kenneth A. Buckley appearing and being represented by his attorney, Norman J. Barilla, Esquire, and with the defendant, Mindy L. Fell, appearing and being represented by her attorney, Susan M. Papa, Esquire, it is hereby ordered and decreed as follows:

1. The parties shall share primary physical custody of the minor children, Kylie Marie Buckley, bom September 17, 1999, Natalie Ann Buckley, bom January 23, 2001, and Kenneth Andrew Buckley, bom March 28, 2002. Each parent shall continue to enjoy custody of the minor children on alternating weeks with exchanges taking place on Sunday evenings at a mutually agreed upon time.
2. During the weeks when natural father enjoys physical custody, the paternal grandmother shall be responsible for transporting the minor children to school. The children are additionally permitted to ride the school bus to natural mother’s house after school, where natural mother will be responsible for assuring that a responsible adult is present when they exit the school bus. Natural mother is also responsible for transporting the minor children to natural father’s house no later then 4:00 p.m., so that natural father can resume exercising his period of custody.
3. The children shall remain in the New Castle Area School District.
4. The natural mother and natural father shall have shared legal custody of their minor children and execute any and all necessary documents or releases necessary to effectuate legal custody, including, but not limited to, authorizations and/or releases for school reports, medical reports, insurance documents, and documents required by state, local or federal authorities. Except in the case of medical emergencies, the custodial parent will consult with the non-custodial parent with regard to the medical, dental and psychiatric care and treatment of the children. Both parties shall have the right to review the medical, dental and psychiatric records of the child, the result of psychological tests and the school records of the child. Also the custodial parent is responsible for the academic performance of the children and the children’s participation in normal extracurricular activities.
5. The parties are extended the privilege by the court, upon their mutual agreement, to modify the terms of the above stated custody provisions from time to time as they shall agree are in the best interest of the children.
6. In any transporting of the minor child, all parties and anyone involved with such transportation shall comply with the laws and regulations of the Commonwealth of Pennsylvania including those regarding child safety restraint apparatus in any vehicle used to transport the child.
7. The parties are directed to fully cooperate with each other in fulfilling the requirements of this order and all other orders in connection with this matter. Failure to do so may result in sanctions being imposed by the court upon the offending party including suspension of custody and payment of attorney’s fees.
8. No party shall remove the minor child from the jurisdiction of this court with the intent of changing the physical residence of the minor child without written consent of the other party or the court.
9. The parties shall read and fully comply with the provisions of the appendix to custody order which is attached hereto and filed with this order.
10. The prothonotary shall properly serve notice of this order and attached opinion by regular mail or personal service upon counsel of record for the parties.


author: MURPHY, J.,

text:
    Rodden v. Town and Country Kitchens and Bath, Inc.

      C.P. of Montgomery County,
    no. 08-02320.

      Michael P. Quinn, for plaintiffs.

      Mark Kardos, for defendant.
    October 27, 2010
   MURPHY, J.,

The instant opinion relates to the court’s order dated August 20, which granted plaintiffs’ motion for judgment on the pleadings. This decision was reached after oral argument on August 12, 2010. The court set forth its rationale in the order dated August 20,2010. This opinion supplements that reasoning pursuant to R.A.P. 1925(a).

This case presents the question whether a transaction involving the purchase of custom kitchen cabinetry for plaintiffs’ home is covered by the protections within §201-7 of the Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-7 (the “UTPCPL”). Both parties appeal from this court’s order dated August 20, 2010, holding that the UTPCPL applies and granting plaintiffs’ motion for judgment on the pleadings. Defendant appeals from the judgment entered against it in the amount of $19,000. Plaintiffs appeal because this court did not grant to plaintiffs treble damages and attorneys’ fees.

According to the complaint, filed with this court on January 29, 2008, plaintiffs, Steven and Anna Rodden, visited Town and Country Kitchens and Bath, Inc. (hereinafter “defendant”) in or around November 2005 and expressed interest in purchasing goods or services from defendant. Plaintiffs assert and defendant admits that on or about December 7, 2005, defendant sent a representative to plaintiffs’ residence where further discussions took place and measurements were taken, and plaintiffs tendered a deposit of $1,000 to defendant. According to the complaint, a representative of defendant visited the Rodden residence again on December 21,2005, January 12, 2006, March 9, 2006, June 7, 2006, August 6, 2006 and November 2, 2006.

In its answer filed on March 18, 2008, defendant admitted that their representative was present at plaintiffs’ home on December 7, 2005, December 21, 2005, January 12, 2006, August 6, 2006 and November 2, 2006. Plaintiffs allege that an additional $15,000 was delivered to Town and Country on June 7, 2006 at plaintiffs’ residence. Defendant denies that this transaction took place at plaintiffs’ home, asserting instead that the $15,000 deposit was delivered at defendant’s place of business. Plaintiffs and defendant agree that a contract was delivered to plaintiffs for their signatures but disagree as to the date. Plaintiffs assert that the proposed contract was delivered to them at their home on or about January 31, 2006. Defendant asserts that the contract was dated Februaiy 1, 2006 and was delivered to plaintiffs on February 21, 2006. Plaintiffs assert and defendant admits that the parties never signed a written agreement. Further, plaintiffs assert that defendant never provided the plaintiffs with written notice of their 3-day right of rescission as required by 73 Pa. C.A. 201-1. In its answer, defendant asserts that plaintiffs were orally advised of their right to rescission within 3 days, but defendant does not assert that plaintiffs received a written notice of the right to rescind. On or about December 21,2006, plaintiff, Steven Rodden, telephoned defendant to cancel the order. Defendant asserts in its answer that the cabinets had been custom made and were scheduled to be delivered on December 23, 2006, and defendant could not stop production. Therefore, defendant asserted that plaintiffs would be liable for the expense of the cabinets.

Plaintiffs filed a complaint on January 29,2008 seeking rescission of the original contract and return of the $19,000, in total, they had paid to defendant as a deposit plus statutory interest, attorneys’ fees and treble damages under 73 Pa. C.A. 201-1. Defendant filed an answer and counterclaim on March 18, 2008, seeking over $8,000 in damages from plaintiffs, based upon defendant’s claim that an oral contract had been created for delivery of custom kitchen cabinets for a total price of $27,000. On April 22, 2010, plaintiffs filed a motion for judgment on the pleadings pursuant to Rule 1034 and filed a memorandum of law on April 23,2010. Defendant filed an answer to the motion for judgment on the pleadings and a memorandum of law on March 21, 2010. Oral argument was held on August 12, 2010 and an order was entered on August 20, 2010, granting judgment on the pleadings to plaintiffs, and directing that judgment should be entered against the defendant in the amount of $19,000. Both plaintiffs and defendant appealed from this order. Defendant asserts the following concise statement of matters complained of:

1. The lower court erred in granting the motion... where there was no duty to rescind under the Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-7, where plaintiff had initially visited the showroom of defendant, all material contacts were at the showroom and the only meetings at the home of plaintiff were to take necessary measurements.
2. The lower court erred in granting the motion... where the sale or contract was not entered into “as a result of or in connection with” contact between the seller and consumer at consumer’s home under Unfair Trade Practices and Consumer Protective Law, 73 P.S. §201-7.
3. The lower court erred in granting the motion... when the motion for judgment on the pleadings was filed approximately two years after the close of pleadings, there were disputed and genuine issues of fact and discovery had occurred between the parties.

Plaintiffs provided the following statement of matters complained of on appeal:

1. Whether the lower court erred as a matter of law in precluding/failing to accept evidence on the issues of treble damages and attorneys’ fees as permitted by Pennsylvania’s Unfair Trade Practices and Consumer Protection Law, 73 P.S. 201-1, et seq.
2. Whether the lower court abused its discretion in precluding/failing to accept evidence on the issues of treble damages and attorney fees” as permitted by Pennsylvania’s Unfair Trade Practices and Consumer Protection Law, 73 P.S. 201-1, et seq.

The essential question presented by defendant is whether the Unfair Trade Practices and Consumer Protection Law applies to the facts at issue in this case.

Section 201-7 provides, in pertinent part:

“(a) where goods or services having a sale price of Twenty-Five Dollars ($25) or more are sold or contracted to be sold to a buyer, as a result of, or in connection with, a contact with or call on the buyer at his residence, that consumer may avoid the contract or sale by notifying, in writing, the seller within three (3) full business days following the day on which the contract or sale was made and by returning or holding available for return to the seller, in its original condition, any merchandise received under the contract or sale. Such notice of rescission shall be effective upon deposit in the same of the United States mail or upon other service which gives the seller notice of rescission.
(b) at the time of the sale or contract, the buyer shall be provided with: (1) a fully completed receipt or copy of any contract pertaining to such sale,... and in immediate proximity to the space reserved in the contract for the signature of the buyer...a statement in substantially the following form: you, the buyer, may cancel this transaction at any time prior to midnight of the third business day after the date of this transaction....’
(e) the cancellation period provided for in this section shall not begin to run until the buyer has been informed of his right to cancel....”

Defendant asserts that because plaintiffs initially contacted defendant by visiting defendant’s showroom, the fact that subsequent visits were at plaintiffs’ home does not bring this transaction within the protection of the Unfair Trade Practices and Consumer Protection Law. The holding of the Superior court in Burke v. Yingling, 666 A.2d 288 (Pa. Super. 1995) is to the contrary. In Burke v. Yingling, the parties had executed a contract providing for the sale and installation of an audio-video system in buyer’s home. The buyer, in Burke, had initially contacted seller, however, buyer and seller had subsequently met at buyer’s home to discuss the transaction. The contract between buyer and seller did not include the written notice of buyer’s right to rescind as required by Section 201-7. Over the course of several months, seller and buyer continued to meet, buyer made payments totaling over $19,000, and seller installed a system in buyer’s home. Subsequently, buyer stopped making payments and sent seller notice that buyer wished to cancel the transaction pursuant to Section 201 -7. The Superior court analyzed the application of the Unfair Trade Practices and Consumer Protection Law to those facts as follows:

The statute affords the right to cancel to any consumer who agrees to purchase goods or services with the value of $25 or more ‘as a result of or in connection with’ contact between the seller and the consumer at the consumer’s home. The Statute provides for no exceptions. The buyer in this case falls precisely within this language. Here, seller expressly admitted in his answer... that seller engaged in repeated contacts with buyer at his home and that the sale of the audio-video system either resulted from or was consummated in connection with those contacts. The value of the system clearly exceeded the statutory minimum of $25. Burke v. Yingling, 666 A.2d 288 (Pa. Super. 1995).

Defendant argues that plaintiffs initially visited defendant’s place of business. Although defendant admits that a representative of defendant came to plaintiffs’ home on at least five occasions to take measurements and, in one case, to accept a deposit, defendant attempts to distinguish Burke v. Yingling because here there was no allegation that actual consummation of the contract took place at the home.

The asserted distinction between the facts of this case and the facts in Burke v. Yingling is unavailing.

As the Superior court noted in its analysis of the statute in Burke v. Yingling,

(T)his legislative language clearly provides a right to cancel to all buyers, even if the buyer is sophisticated, in no way deceived or pressured by the seller, and takes adequate time to reflect before agreeing to the transaction. 666 A.2d 288, 291.

The initial question to be answered under the clear language of the statute is were goods or services sold or contracted to be sold to the buyer “as a result of or in connection with a contact or call on the buyer at his residence?” Here the answer is yes and defendant admitted contact with and calls upon the buyers at their residence on at least five occasions. On at least one of these occasions, a deposit of $1,000 was accepted at the home of the plaintiffs. This, too, was admitted by defendant in its answer.

Having answered this question in the affirmative, the Statute clearly applies. The Statute requires that at the time of the sale or contract, the buyer must be provided with a written notice of buyer’s right to cancel the transaction within three days. Defendant admitted in its answer that it did not provide the required written notice. Having failed to provide the required written notice to the buyers, the Statute clearly provides that the cancellation period did not begin to run. Thus, plaintiffs had a right to cancel the contract, having not been provided the required written notice. Given the clear language of the Statute and the Superior court’s opinion in Burke v. Yingling, and given the facts established on the face of the pleadings, no other conclusion is possible. For these reasons, this court granted plaintiffs’ motion for judgment on the pleadings.

Plaintiffs complain in their concise statement of matters complained of on appeal that this court failed to accept evidence on the issues of treble damages and attorneys’ fees. However, plaintiffs moved for judgment on the pleadings. Plaintiffs did not take any steps to preserve their right to introduce evidence on the issues of attorneys’ fees or treble damages. In conducting an inquiry on a motion for judgment on the pleadings, the court is constrained to consider only the pleadings and relevant documents and not to entertain additional evidence. Under these circumstances, plaintiffs have not established a basis to recover treble damages or attorneys’ fees.

The goods and services were purchased by plaintiffs “as a result of or in connection with” contact at their home, and therefore, plaintiffs are entitled to the protections of Section 201 -7” of the Unfair Trade Practices and Consumer Protection Law, 73 Pa. C.S. §201-7. Given that the statute applies, and that the pleadings make it clear that there is no dispute that no notice of rescission was ever provided to the plaintiffs, the period within which plaintiffs could rescind their agreement did not begin to run. Therefore, plaintiffs are entitled to rescind their agreement for purchase of goods and services and are entitled to a refund of the sums paid. Plaintiffs have not established entitlement to treble damages or attorneys’ fees.

For the foregoing reasons, the August 20, 2010, order granting judgment on the pleadings in favor of plaintiffs, Steven and Anna Rodden, in the amount of $19,000, plus allowable costs and interest, was correct.


author: COX, J.,

text:
    Commonwealth v. White

      C.P. of Lawrence County,
    no. 80 of 2009.

      William J. Flannery, assistant district attorney, for Commonwealth.

      William M. Panella, for defendant.
    December 21, 2010
   COX, J.,

In the current matter, the defendant Alvin George White, Jr., has filed a petition for post-conviction collateral relief, in which he argues that his trial counsel was ineffective because counsel failed to properly inform the defendant about a plea agreement tendered by the Commonwealth when the jury was deadlocked during deliberations, in which the Commonwealth proposed a term of incarceration of not less than 15 months nor more than 30 months in a state correctional facility plus five years state probation.

On January 10, 2009, at approximately 9:30 p.m., Nathan Smith and his girlfriend Mercedes Egbert walked from their residence at 1015 South Mill Street, New Castle, Lawrence County, Pennsylvania, to Country Fair convenience store located at the comer of Reynolds Street and Mill Street in New Castle. As they walked, they were stomping down snow that was on the ground. Prior to entering Country Fair, Mr. Smith and Ms. Egbert used a nearby pay phone where they were confronted by the defendant, who asked Mr. Smith why he was playing in the snow. The defendant also asked them for a quarter and then changed his request to a quart of oil. The defendant pointed out his vehicle and said that it was inoperable because it needed oil. Mr. Smith offered to buy him a quart of oil and the defendant insisted that he felt more comfortable buying the oil himself. Mr. Smith refused to give the defendant money, but still offered to buy the quart of oil for him. The defendant also began a conversation with Mr. Smith about religion and Mr. Smith invited the defendant to attend church in Aliquippa, Pennsylvania.

Mr. Smith and Ms. Egbert subsequently entered Country Fair and they were informed by the security guard to be careful when dealing with the defendant. They were alarmed by the statements from the security guard and decided to run home. As they proceeded to their residence, they noticed the defendant start his vehicle. They continued to run to the corner of Mercer Street and Phillips Street until they were stopped by the defendant’s vehicle. The defendant asked why they were avoiding him. Mr. Smith noticed that there was a female in the vehicle with the defendant. It appeared to Mr. Smith and Ms. Egbert that the defendant was angry and the defendant informed Mr. Smith that “things were not going to go well for him.” At that time, Ms. Egbert called 911 to receive assistance from police officers. Mr. Smith stated that he could see into the vehicle and the defendant was in possession of a firearm. Ms. Egbert could also see the firearm, even though she was standing by the rear portion of the vehicle. Eventually, the defendant drove away. Soon thereafter, Officer Stephen Brooks of the New Castle Police Department arrived at the scene and spoke with Mr. Smith and Ms. Egbert.

Moreover, Officer John George, also from the New Castle Police Department, received a “Be On The Look Out” dispatch or BOLO for a red Dodge Neon that was involved in the altercation with Mr. Smith and Ms. Egbert. He located the vehicle on Pin Oak Drive in New Castle, Pennsylvania. He searched the vehicle and did not find a firearm. The police officers arrested the defendant and charged him with criminal attempt to commit robbery, terroristic threats, simple assault and criminal attempt to commit theft by unlawful taking. The defendant’s trial commenced on September 21, 2009, and concluded on September 23, 2009.

During jury deliberations, the jury indicated to the court that they were deadlocked and could not reach a unanimous verdict. The court summoned the attorneys into chambers to discuss the issue presented by the jury. At that time, the Commonwealth offered the defendant a plea deal, which included recommending a term of incarceration of not less than 15 months nor more than 30 months plus five years of probation. Larry J. Keith, Esquire, the defendant’s trial counsel and employee of the office of the public defender, left chambers and informed the defendant that the Commonwealth tendered the plea offer. He also instructed the defendant that the jury was “hung.” However, Attorney Keith did not specifically inform the defendant as to what he meant by the jury being “hung.” The defendant insists that he was under the impression that the trial was over and it was a mistrial. Attorney Keith and Dennis A. Elisco, Esquire, another employee of the office of the public defender, testified that they did not recall informing the defendant the jury was merely deadlocked and the court was permitting them to further deliberate before declaring a mistrial. It must be noted that Attorney Elisco assisted Attorney Keith at every juncture of the defendant’s case and was present in the courtroom to aid Attorney Keith, if necessary, in resolving the jury’s question. He also observed the proceedings and had prior discussions with the defendant through his employment with the office of the public defender. Attorney Elisco explained that he emphatically instructed the defendant to accept the plea bargain. However, according to Attorney Elisco, the defendant was adamant that he was innocent and wanted to proceed to a jury verdict. At some point, the court informed members of his staff to have the jury prepare to enter the courtroom to receive further deliberation instructions from the court. But, as this was being done, the jury indicated that they wanted more time to deliberate, which the court granted. Shortly thereafter, the jury returned a verdict of guilty on the charges of criminal attempt to commit robbery and terroristic threats.

Now, the defendant claims that his trial counsel was ineffective for failing to properly instruct him on the effect of a deadlocked jury and for failing to properly inform him of the plea offer proposed by the Commonwealth.

To establish a claim for ineffective assistance of counsel, a defendant must prove each of the following: “ 1) an underlying claim of arguable merit; 2) no reasonable basis for counsel’s act or omission; and 3) prejudice as a result, that is, a reasonable probability that but for counsel’s act or omission, the outcome of the proceeding would have been different.” Commonwealth v. Cooper, 596 Pa. 119, 133, 941 A.2d 655, 664 (Pa. 2007) (citing Commonwealth v. Carpenter, 555 Pa. 434, 725 A.2d 154, 161 (Pa. 1999)). Counsel is presumed to be effective and the burden is on the defendant to prove otherwise. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (citing Commonwealth v. Pond, 846 A.2d 699 (Pa. Super. 2004)). “A failure to satisfy any prong of the test for ineffectiveness will require rejection of the claim.” Commonwealth v. Sneed, 587 Pa. 318, 899 A.2d 1067 (Pa. 2006) (citing Commonwealth v. (Michael) Pierce, 567 Pa. 186, 216-219, 786 A.2d 203, 221-223 (Pa. 2001); Commonwealth v. Albrecht, 554 Pa. 31, 46, 720 A.2d 693, 701 (1998)).

Counsel is effective if the court can determine that the course of action has some reasonable basis designed to effectuate the client’s interest. Commonwealth v. Sisco, 482 Pa. 459, 462, 393 A.2d 1197, 1199 (Pa. 1978). “Ineffective assistance of counsel can only be found ‘if the defense actually tendered was so insubstantial in relation to those offered as to cast doubt upon the hypothesis that trial counsel made a deliberate informed choice.’” Commonwealth v. Hill, 450 Pa. 477, 480, 301 A.2d 587, 590 (Pa. 1973) (quoting Commonwealth v. Ganss, 440 Pa. 602, 606, 271 A.2d 224, 226 (Pa. 1970)). The jury’s verdict will not be disturbed, where counsel’s actions are within the realm of reasonable trial tactics. Commonwealth v. Karabin, 493 Pa. 249, 253, 426 A.2d 91, 93 (Pa. 1981) (citing Commonwealth ex rel Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (Pa. 1967)). The Pennsylvania Supreme Court has adopted the two-prong test to determine ineffective assistance of counsel established by the United States Supreme court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 LEd.2d 674 (Pa. 1984). This test sets forth that the defendant must prove each of the following: (1) counsel’s performance was deficient and (2) the deficient performance prejudiced the defense. Commonwealth v. Bolden, 512 Pa. 468, 517 A.2d 935 (Pa. 1986) (quoting Strickland, supra.). The prejudice requires the defendant show that but for his counsel’s ineffectiveness the result would have been different. Commonwealth v. Pierce, 515 Pa. 153, 161, 527 A.2d 973, 976 (Pa. 1987). It must be noted that there is a presumption that counsel was effective. Id., 515 Pa. at 159, 527 A.2d at 975.

The court addressed the issue as to whether trial counsel’s failure to adequately inform a criminal defendant about the possible risks and benefits of a plea agreement met the requirements for ineffective assistance of counsel in Commonwealth v. Chazin, 873 A.2d 732 (Pa. Super. 2005). In that case, the appellee entered a negotiated guilty plea to one count of robbery, possessing instruments of crime and criminal conspiracy stemming from a gunpoint holdup of a delicatessen. The Commonwealth recommended a sentence of not less than nine years to not more than eighteen years incarceration for robbery and a consecutive term of twelve years reporting probation for criminal conspiracy and a concurrent term of five years reporting probation for possessing instruments of crime. The Commonwealth also dismissed other charges filed against the appellee. The court accepted the negotiated plea and imposed the recommended sentence. The appellee filed a petition for post-conviction collateral relief asserting a claim of ineffective assistance of counsel against his first-appointed counsel for not adequately advising him of an earlier plea offer tendered by the Commonwealth, which presented a term of incarceration of not less than four years to not more than eight years. The appellee claimed that his original counsel failed to communicate and explain the terms of the earlier plea offer. The trial court granted the appellee’s petition for post-conviction collateral relief. The Commonwealth appealed and argued that a plea offer is unenforceable until it is accepted by the trial court and the appellee’s petition should be denied as he failed to demonstrate prejudice because there was no proof that the trial court would have accepted the proposed agreement.

The Chazin court explained that the appellee’s claim had arguable merit as his counsel’s failure to provide the appellee with advice regarding the initial plea offer deprived the appellee of the benefit of the shorter term of incarceration tendered in that plea offer. Id., 873 A.2d at 735. The court then turned its attention toward whether the appellee was able to demonstrate that his trial counsel’s deficient performance actually prejudiced his case. Moreover, the court instructed that the appellee was required to establish that: “(1) an offer for a plea was made; (2) trial counsel failed to inform him of such offer; (3) trial counsel had no reasonable basis for failing to inform him of the plea offer; and (4) he was, prejudiced thereby.” Id. (quoting Commonwealth v. Copeland, 554 A.2d 54, 61 (Pa. Super. 1988)). The court concluded with the Commonwealth’s rationale that the appellee was unable to show prejudice because of the plea judge’s announced refusal to accept a sentence that was so lenient. Id., 873 A.2d at 736. The Pennsylvania Rules of Criminal Procedure provide the trial court with broad discretion to accept or reject proposed plea agreements. Id., 873 A.2d at 737 (citing Commonwealth v. Hudson, 820 A.2d 720, 727-728 (Pa. Super. 2003)). The Chazin court reasoned, “[The appellee] presented no evidence at the [ineffective assistance of counsel] hearing that had he accepted the Commonwealth’s original offer, the trial court...would have accepted the resulting plea bargain.” Id. In fact, the court noted that, to the contrary, the evidence suggests that the trial court would have rejected the plea bargain. Id. The Chazin court held, “without evidence that the result of the plea bargain process would have been different had he been able to accept the Commonwealth’s original offer, [the appellee] necessarily fails to satisfy the prejudice prong requisite to a finding of [ineffective assistance of counsel].” Id., 873 A.2d at 738.

In the case subjudice, the defendant is arguing that his trial counsel was ineffective for failing to adequately inform him about the benefits and risks of a plea offer tendered by the Commonwealth while the jury was deadlocked during deliberations. It is important to note that the defendant chose to proceed to trial and his trial progressed to the point of jury deliberations before the Commonwealth tendered the plea bargain at issue in this case. The jury indicated to the court that it had reached an impasse and was deadlocked at the time the plea bargain was proposed by the Commonwealth, but the court had not declared a mistrial. In fact, the court was not intending to declare a mistrial at that time and was preparing to instruct the jury to deliberate further; moreover, Attorney Elisco, who this court finds to be credible and emphatic in his recollection of the events, was present when trial counsel informed the defendant about the proposed plea bargain. Attorney Elisco testified thatthe defendant ardently rej ected the plea agreement and maintained that he was innocent. Additionally, the defendant did not indicate that he would have accepted the plea bargain, even if it was adequately explained to him. The defendant chose to proceed to trial, decided to reject the plea bargain and permitted the jury to make its determination; now, the defendant is expressing a form of buyer’s remorse in that he is not satisfied with the verdict that he received from the jury or the subsequent sentence and now wants the benefit of the plea bargain tendered by the Commonwealth.

Furthermore, there is no evidence in the record or presented by the defendant that the court would have accepted the plea agreement, if he chose to plead guilty at that time. As the court in Chazin ruled, there must be evidence that the court would have accepted the plea bargain in order for the defendant to establish the prejudice prong of the ineffective assistance of counsel analysis. Clearly, the defendant was unable to demonstrate that the court would have accepted the terms of the plea bargain tendered by the Commonwealth when the jury indicated that it was deadlocked. Thus, the defendant is unable to establish that his trial counsel was ineffective in the current matter.

For the reasons set forth in this opinion, the defendant’s petition for post-conviction collateral relief is denied.

ORDER OF COURT

And now, December 21, 2010, this case being before the court on November 1, 2010, for a hearing on the petition for post-conviction collateral relief filed by the defendant, with both parties appearing, the Commonwealth of Pennsylvania, represented by counsel, William J. Flannery, Esquire, assistant district attorney for the County of Lawrence and the defendant, Alvin George White. In represented by counsel, William M. Panella, Esquire and after (missing) the following order and it is hereby ordered, adjudged

1. In accordance with the attached (missing) post-conviction collateral relief filed by the defendant is (missing)

2. The defendant is advised he has the right of appeal to the appellate courts from this order, and such appeal must be in writing and filed within thirty (30) days of this date or the right of appeal will be lost.

3. The defendant is further advised he has the right to legal counsel in filing such appeal and if he is financially unable to employ said counsel for said purpose, and if he meets the required standard of indigency, counsel for this purpose will be provided to him without cost.

4. The clerk of courts is directed to serve a copy of this order of court upon counsel of record, William J. Flanneiy, Esquire, William M. Panella, Esquire and the defendant at his last known address contained in the file.

      . 18 Pa.C.S.A. §901.

      . 18 Pa.C.S.A. § 2706(a)(1).

      . 18 Pa.C.S.A. § 2701(a)(3). This charge was withdrawn by the court on September 21,2009.

      . 18 Pa.C.S.A. § 901. This charge was also withdrawn by the court on September 21,2009.


author: SPRECHER, J.,

text:
    Hazer v. Zabala

      C.P. of Berks County,
    no. 10-13202.

      Jerry A. Snyder, for plaintiffs.

      Richard A. Veon, for defendant.
    January 10,2011
   SPRECHER, J.,

Defendant appeals the order dated October 14,2010, that denied and dismissed his petition to strike or open the confessed judgment entered against him by plaintiffs.

This opinion is filed pursuant to Pa. R.A.P. 1925.

FACTS

Plaintiffs, Murathan Hazer and Suna Hazer, filed a complaint in confession of judgment against defendant, Juan F. Zabala. The parties executed a commercial lease on September 29, 2008, whereby plaintiffs leased a property to defendant. Plaintiffs averred that defendant was in default of the lease due to his failure to pay the rent timely, his withdrawal from the premises prior to the expiration of the lease, and his commission of damages to the premises. Plaintiffs sought damages in the amount of $43,210.00 and attorney fees of $2,500.00. Judgment was confessed on July 16, 2010.

On August 11, 2010, defendant filed his petition to strike or in the alternative to open the confessed judgment. Defendant contends that he signed the lease as “Juan Zabala D/B/A Zabala Broker, LLC” (hereinafter, Zabala Broker), and that he executed the rental checks on drafts under that name. He maintains that he individually was never a party to the lease and that he never executed the addendum which provides for the confession of judgment. Defendant also contended that his native language is Spanish and that he did not know that the agreement contained an addendum that provided for a confession of judgment.

Plaintiffs’ answer alleged that they had accepted the checks because they had believed that the checks were tendered on behalf of defendant’s individual obligations. Zabala Broker is a Delaware limited liability company and was not registered to conduct business in Pennsylvania until December 15, 2008.

At the hearing on defendant’s petition, the parties stipulated that defendant had paid the rent on checks drawn from an account entitled “Zabala Broker LLC.” Defendant testified that he is the president of Zabala Broker and that the company is registered in Delaware.

Based on the foregoing record, this court denied defendant’s petition. Defendant filed a timely appeal.

ISSUES

Defendant raises the following issues in his concise statement of errors complained of on appeal:

1. Whether the instant litigation involving a confessed judgment against defendant is proper when the underlying lease is between plaintiffs and Zabala Broker?
2. Whether a Delaware corporation can transact business within the Commonwealth of Pennsylvania under the Corporations Code?
3. Whether a Delaware corporation that enters into a contract with plaintiffs can be sued under Pennsylvania law despite a failure to file a fictitious name with Harrisburg?
4. Whether a draft of a lease other than the lease sued upon can be entered into evidence in violation of the parol evidence rule?
5. Whether a confession of judgment clause (cognovit) must be conspicuously placed in the body of a contract; by bold or capital print; in the signer’s native language; and separately signed due to the draconian nature of cognovit clauses?
6. Whether, assuming arguendo, the confession clause is upheld against defendant, the correct amount of damages was calculated by counsel for plaintiffs?
7. Whether the proper party to the instant action is Zabala Broker, based upon the lease and plaintiffs’ acceptance of payments by Zabala Broker?
8. Whether plaintiffs accepted sums for rent under the lease from Zabala Broker?

DISCUSSION

Defendant’s first contention is that this litigation is improper because it involves a confessed judgment between plaintiffs and Zabala Broker. This issue is without merit.

To open a confessed judgment, a party must act promptly and aver a meritorious defense. Hellam Township v. DiCicco, 429 A.2d 1183 (Pa. Super. 1981). A petition to open a confessed judgment is an appeal to the equitable side of the court. The judge sits as chancellor and has wide discretion in considering the conflicting evidence and in determining the conclusion to be reached therefrom. The First National Bank of Allentown v. Stoudt, 352 A.2d 162 (Pa. Super. 1975).

Defendant did not come before this court with clean hands. He signed the lease as Juan Zabala, then added in printed letters “D/B/A Zabala Broker, LLC.” The parties entered into the lease on September 29,2008. His business was not registered in Pennsylvania as a fictitious name until December 15, 2008, more than two months after the execution of the lease. Thus, defendant was not doing business under a fictitious name in Pennsylvania at the time of the execution of the lease. Even assuming arguendo, that defendant was signing the lease under a fictitious name, he would still be responsible for the lease because a fictitious name is not an entity under Pennsylvania law. Moreover, he did not sign the lease as the president of Zabala Broker. He signed the lease as an individual.

Defendant next asserts that a Delaware corporation can transact business and be sued within the Commonwealth of Pennsylvania under the Corporations Code despite a failure to file a fictitious name in Pennsylvania. This is true. However, as this argument applies to the case subjudice, it is meritless. Defendant’s individual name was typed on the lease. Defendant printed in ink the designation “D/B/A Zabala Broker, LLC.” These designations were not initialed by any of the parties, and as stated previously in this opinion, defendant did not sign as president of Zabala Broker.

Defendant’s fourth issue is whether a draft of a lease other than the lease sued upon can be entered into evidence in violation of the parol evidence rule. This issue is frivolous. No one objected to the admission of the draft. Therefore, it was admitted. It shows that defendant signed the draft agreement personally without a doing business designation.

Defendant next contends that a confession of judgment clause must be conspicuously placed in the body of a contract, by bold or capital print, in the signer’s native language, and separately signed due to the draconian nature of the clause. This argument is disingenuous. No evidence was presented that defendant did not understand the clause. Defendant speaks and writes English. He is a businessman and owns his business. There is no law that states that a cognovit clause must be written in the party’s native language. The addendum was incorporated in the lease. The cognovit clause comprised paragraph a, the first paragraph of the addendum. It was neither buried in the body of the lease nor written in smaller print than the remaining body of the lease or addendum. The cognovit clause was, in fact, conspicuous. Thus, these arguments fail.

Defendant’s sixth complaint is that the correct amount of damages was not calculated. Defendant did not raise this issue in his petition or present evidence on the issue at the hearing. The first time that this issue was raised was in defendant’s brief. Therefore, defendant waived the issue.

Defendant raises several issues regarding the payment of the rent drawn on checks issued by Zabala Broker. These arguments are fripperies. Entities and individuals may pay the debts of other entities and individuals, including those debts incurred by contract. Plaintiffs’ acceptance of the payments does not eliminate defendant as the responsible party for the debt or void the essential terms of the lease.

Based on the foregoing discussion, this court found that defendant did not have a meritorious defense to the judgment and submits that defendant’s appeal should be dismissed and its order sustained.


author: STEINBERG, «/.,

text:
    Commonwealth v. Rivera

      C.P. of Lehigh County,
    no. CR-2658-2010.

      Christie Bonesch, chief deputy district attorney,
      and Gregory Englert, assistant district attorney, for Commonwealth.

      Richard Webster, for defendant.
    January 4, 2011
   STEINBERG, «/.,

The defendant, Angel Rivera, is charged with criminal homicide, attempted criminal homicide, aggravated assault (2 counts), persons not to possess, use, manufacture, control, sell or transfer firearms, and possession of firearm by minor.Itis alleged thatthedefendantshotBarbaraHeinrich and Francisco Fordham multiple times. Ms. Heinrich died of her wounds and Mr. Fordham was seriously injured.

On September 3, 2010, Omnibus pre-trial motions were filed on behalf of the defendant seeking, in pertinent part, the suppression of the defendant’s statements to members of the Allentown Police Department. The defendant contends that he did not knowingly and intelligently waive his Miranda rights. In that regard, the defendant alleges that he was “not afforded the opportunity to consult with an interested adult despite the fact that he is a juvenile.” The defendant also maintains that he requested counsel, exercised his right to remain silent, and once he did so, all interrogation was required to cease.

During the suppression hearing held in this matter, it was learned that the defendant was apprehended on May 26,2010, at approximately 8:01 p.m., which was five days after the shooting. Detective Mark Boyer of the Allentown Police Department testified that following the defendant’s apprehension, he was not interviewed until 11:00 p.m. The reason for the delay, according to Detective Boyer, was the need to create and present a photographic display to witnesses, including Francisco Fordham, who remained hospitalized from the shooting.

Due to the defendant’s age, Detective Erik Landis also contacted the defendant’s mother, Rosalind Rivera, prior to conducting an interview. The detectives and Ms. Rivera’s versions of what transpired during their conversation, as well as subsequent events, clash. Detective Landis testified that once he reached Ms. Rivera, she was reluctant to come to police headquarters. She explained that the defendant was a “grown man” who had been out of her home for “three months.” When Detective Landis offered her a ride to headquarters, she declined the invitation. She told Detective Landis that the defendant was a “grown up,” and she had nothing to do with him. Detective Boyer confirmed this account of the events, including Ms. Rivera’s unwillingness to come to headquarters. Ms. Rivera, who also testified at the suppression hearing, admitted that the defendant had not been living with her for two and one-half weeks, but denied that she expressed any reluctance to come to headquarters.

The disagreement over the conversation between Detective Landis and Ms. Rivera has little effect on this controversy, because Ms. Rivera appeared at headquarters, according to Detective Landis, at approximately 10:45 p.m. Detective Landis testified that Ms. Rivera called back and told him she would be coming to headquarters. Ms. Rivera testified that she came to headquarters shortly after 11:00 p.m. with Anthony Bivins. She denied that she needed to be coaxed.

When Ms. Rivera arrived at headquarters, the version of events is again in dispute. Detectives Landis and Boyer testified that Ms. Rivera was escorted to the juvenile division and told about the shooting/killing. Ms. Rivera made comments about her son similar to her earlier conversation with Detective Landis, and requested to wait in her vehicle. According to the detectives, she never requested to see her son. Ms. Rivera, on the other hand, testified that she wanted to see her son, but Detective Landis told her that he needed to speak with the defendant “a little more.” Ms. Rivera and Mr. Bivins claimed that they waited outside in their car for a “good two to three hours.”

Both the Commonwealth and the defendant do agree that when the initial interview with the defendant commenced, Ms. Rivera was not present in the interview room. The tape and transcript of the interview with the defendant reflect that the interview with him began at 11:05 p.m., with some brief preliminary background questions. The defendant was then advised of his Miranda rights. The defendant, after being verbally advised of his rights, signed the written version of the Miranda rights at approximately 11:08 p.m. Thereafter, the defendant was interviewed until 11:30 p.m. during which time the defendant denied any involvement in the shooting.

During the next 129 minutes, no formal interview was conducted with the defendant, although Detective William Lake, Detectives Boyer and Landis and District Attorney James Martin all spoke with the defendant. Detective Lake, who was with the defendant from approximately 12:45 a.m. until 1:10 a.m., primarily talked with the defendant about his younger brother. The defendant did not request counsel, nor did he indicate any wish to remain silent during Detective Lake’s presence or throughout the break in the formal interview process. Once again, the defendant did not implicate himself in the shooting. He did, however, request to speak with his mother.

Ms. Rivera was brought to the defendant at approximately 1:30 a.m. She was allowed to speak alone with the defendant for approximately five (5) minutes, and was present throughout the remaining interview, which commenced at 1:39 a.m. She described the defendant as dirty, with no shirt or shoes and under the influence. This testimony is in sharp contrast to Detective Lake, who testified that some time prior to his appearance in the interview room at 12:45 a.m., the defendant was provided with a shirt. It was also his opinion, that the defendant was not intoxicated or impaired.

Prior to asking the defendant specific questions during this phase of the interview process, Detective Landis reminded the defendant of his Miranda rights, and the defendant acknowledged that he understood them, and that they were still in effect. The defendant told the detectives and his mother that, “Supreme” owed him $400 for “some drugs.” When he reached “Supreme’s” residence, the two had a conversation, and at some point “Supreme had the gun on me.” The defendant then described the events as follows:

ANGEL RIVERA: Then it sounded like he, he went to go cock something. The girl, he was looking at the door, the girl was standing here with her back towards him, he was in front of them and sounded like he cocked something back. So I thought in my head its either my life or his, you feel me? So that’s when I just let off the first few shots. I hit her in the back two times. She fell.' I let off another shot. I guess that is the one that caught him in the face or something like that.
DET. LANDIS: Ok.
ANGEL RIVERA: Then he ran into the house and I ran in after him, told him all I want is my bread. He didn’t say nothing, he tried to come out but he ran like, it looked like he, I don’t know what he had in that bathroom, if ya’ll found in that bathroom. It looked like he had some type of rifle or something like that. So, that’s when I just started backing up and I just let off the whole clip. And then I ran out the house. I ran towards, I was on 8th (PAUSE) and I ran into a back yard and I stood there for a while until like everything calmed down. That’s when I left.

The defendant then described how he discarded the Ruger “inside a back door, inside of a bag.” He claimed to have found the loaded weapon on the street. The interview was concluded at 2:04 a.m.

Discussion

A. Waiver of Miranda Rights

The defendant’s initial claim is that he did not knowingly and intelligently waive his Miranda rights. More specifically, the defendant points to his age at the time of the interview, his physical condition, and the absence of his mother during the initial interrogation.

Any statements secured after administering Miranda rights are admissible provided the accused’s right to remain silent and right to counsel have been explained and the accused has knowingly and voluntarily waived those rights. Commonwealth v. Davis, 861 A.2d 310, 317 (Pa. Super. 2004), citing Commonwealth v. Jones, 546 Pa. 161, 178, 683 A.2d 1181, 1189 (Pa. 1996). The burden of proving by a preponderance of the evidence, the voluntariness of a confession, and whether an accused knowingly waived his rights, rests with the Commonwealth. Commonwealth v. Hughes, 477 Pa. 180, 186, 383 A.2d 882, 885 (Pa. 1978); Commonwealth v. Moore, 454 Pa. 337, 311 A.2d 620 (Pa. 1973). To determine whether the Commonwealth has met its burden of proof, the totality of the circumstances surrounding the giving of the confession must be examined. Davis, 861 A.2d at 317. Some of the factors the suppression court should consider include, “the duration and the methods of interrogation; the conditions of the detention, the manifest attitude of the police toward the defendant, the defendant’s physical and psychological state and all other conditions present which may serve to drain one’s power of resistance to suggestion and undermine his self-determination.” Commonwealth v. Perez, 577 Pa. 360, 373, 845 A.2d 779, 787 (Pa. 2004); Commonwealth v. Hunt, 398 A.2d 690, 692 (Pa.Super. 1979). Additionally, when evaluating whether a juvenile knowingly waived his Miranda rights and made a voluntary confession, the juvenile’s age, experience, comprehension and the presence or absence of an interested adult are all part of the totality of the circumstances equation. Commonwealth v. Harvey, 571 Pa. 533, 548, 812 A.2d 1190, 1199 (Pa 2002).

The defendant, who was 16 at the time of his arrest, had prior experience with the police before he was interviewed. An “Independent Psychiatric Evaluation” prepared on October 5, 2008, during his detention at the Northampton County Juvenile Justice Center, described him as “slightly above average intelligence with a slightly above average fund of general information for his age.”

The defendant demonstrated his intelligence by fending off the detectives initial inquiries regarding the homicide. During the twenty-two minute interview, following the defendant’s acknowledgement of his Miranda rights, he was able to resist any attempt on the part of the detectives to secure an admission. It cannot be seriously argued that the defendant’s power of resistance to suggestion or his self-determination were drained by the length of the interview or the detectives conduct towards him.

His admissions to these offenses did not occur until after he was provided the opportunity to consult privately with his mother. She was also present throughout the interview that commenced at 1:39 a.m. and ended 23 minutes later. Although the defendant admitted to the shooting, he also maintained his composure throughout the interview. He placed a gun in the hands of “Supreme,” claimed that he found the loaded firearm on the street, and did not want to discuss where he received the drugs for sale.

In Commonwealth v. Williams, 504 Pa. 511, 521, 475 A.2d 1283, 1288 (Pa. 1984), the totality of the circumstances analysis was adopted “to all questions involving the waiver of rights and the voluntariness of confessions made by juveniles. All of the attending facts and circumstances must be considered and weighed in determining whether a juvenile’s confession was knowingly and freely given.” The presence or absence of an interested adult is a factor, but is not preemptive in resolving the Miranda waiver.

The defendant in Williams, like Angel Rivera, was not subjected to physical or psychological abuse. Both were of normal intelligence and responsive to the questions asked of them. They were not threatened, nor were any promises made to them. Neither Williams nor the defendant were questioned for any lengthy period of time. Finally, both of them had the opportunity to speak with a parent and have that parent present during the interrogation. See also Commonwealth v. Carter, 855 A.2d 885 (Pa.Super. 2004) (Sixteen year old convicted of felony murder knowingly and intelligently waived his Miranda rights even though no interested adult was present. Totality of the circumstances including the defendant’s prior history with the legal system, the short duration of the interview, the absence of any physical or verbal intimidation, and the defendant’s written and taped confession all supported the voluntariness of the confession). In Interest of N.L., 711 A.2d 518 (Pa. Super. 1998) (Fourteen year old knowingly waived his Miranda rights even though interested adult was not present, and juvenile had no prior experience with juvenile system).

The defendant’s reliance on In the Interest of IB., 2010 WL 4196045 (Pa. Super. October 26, 2010), in which the juvenile, who was 15, admitted to a series of burglaries is misplaced. The juvenile in IB., had an I.Q. of 67, read at a third grade level, and had never been previously arrested. Furthermore, while the juvenile’s mother permitted the police to interview him, she did not attend the interview nor did the juvenile consult with her. Based upon those circumstances it was held that the juvenile’s Miranda waiver was unintelligently and unknowingly entered. Here, the defendant was more sophisticated with the criminal justice system, more intelligent, and consulted with his mother prior to his admissions. She was also present during the interview in which the admission was elicited. The waiver in this case is analogous to Williams, supra., and not T.B.

The defendant also claims his physical condition thwarted his cognitive abilities. Specifically, Ms. Rivera testified that the defendant was under the influence, lacked a shirt and shoes, and was dirty. However, she never raised such concerns while the interview was unfolding. Additionally, Ms. Rivera’s observations were strongly refuted by the experienced detectives who testified that the defendant was not under the influence. The voluntariness of a confession may be based solely on the credible testimony of the investigating officer. Commonwealth v. Cornish, 471 Pa. 256, 370 A.2d 291 (Pa. 1977); Commonwealth v. Smith, 447 Pa. 457, 291 A.2d 103 (Pa. 1972). They also testified that, while in their custody, the defendant was provided with a shirt and food. Furthermore, all of the defendant’s statements, which this court has reviewed, demonstrate his responsiveness to the questioning. Nothing in the conditions of detention, nor the “manifest attitude of the police toward the defendant served to drain his power of resistance to suggestion and undermine his self-determination.”

While this court concludes that the detectives ’ testimony was more credible than Ms. Rivera, even if the defendant had consumed an intoxicant that does not automatically render statements inadmissible. Commonwealth v. Edwards, 521 Pa. 134, 141, 555 A.2d 818, 822 (Pa. 1989); Commonwealth v. Ventura, 975 A.2d 1128, 1138 (Pa. Super. 2009)

The test is whether [the defendant] had sufficient mental capacity at the time of giving his statement to know what he was saying and to have voluntarily intended to say it. Recent imbibing or the existence of a hangover does not make his confession inadmissible, but goes only to the weight to be accorded to it.

Id. citing Commonwealth v. Adams, 561 A.2d 793, 795 (Pa. Super. 1989).

The totality of the circumstances supports the conclusion thatthe defendanthadthe cognitive awareness to understand the Miranda warnings and to knowingly, voluntarily, and intelligently waive them. The Commonwealth has met its burden of proof.

B. Right to Counsel

The defendant asserts that he invoked his right to counsel just prior to the end of initial interrogation when the following exchange occurred:

DET. BOYER: Do you wanna talk to the district attorney and let him know that, that you think we’re bullshitting here?
ANGEL RIVERA: I don’t know, who’s the District Attorney?
DET. LANDIS: He’s the top dog in the county. He’s the guy that’s going to be prosecuting you. (PAUSE) No?
ANGEL RIVERA: I don’t have no words for him. If he ain’t a lawyer I don’t have no words for him.
DET. BOYER: Oh he is, he is an attorney, that’s the prosecuting attorney.
ANGEL RIVERA: OK, he’s not a judge right?
DET. LANDIS: No, he’s our attorney.
ANGEL RIVERA: He’s your attorney, he’s not mine.
DET. BOYER: Anything else you want to say before we end this interview?
ANGEL RIVERA: No.

In Berghuis v. Thompkins, 130 S.Ct. 2250, 2259-2260 (2010), the United States Supreme Court reaffirmed the holding in Davis v. United States, 512 U.S. 452, 459 (1994), where it was held that in the context of invoking the Miranda right to counsel, a suspect must do so “unambiguously.” In other words, “if an accused makes a statement concerning the right to counsel that is ambiguous or equivocal...the police are not required to end the interrogation.” Id. “Although a suspect need not speak with the discrimination of an Oxford don, he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect.” Davis, 512 U.S. at 459 (citations and quotations omitted). (“Maybe I should talk to a lawyer” was insufficient to invoke Fifth Amendment right to counsel). See Commonwealth v. Cleveland, 2010 WL 4357311 (Pa. Comm. PL 2010) (collecting cases) (Defendant’s request to speak with a lawyer after getting out of hospital did not unambiguously invoke right to counsel); United States v. Clark, 2010 WL 3719617 (D.Me. October 21, 2010) (collecting cases) (Defendant did not unambiguously invoke his Miranda right to counsel or to cease questioning by stating during custodial interrogation “I guess this is where I have to stop and ask for a lawyer.”).

On the other hand, “a defendant who requests counsel at any time during a custodial interview ‘is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conver-sations with the police.’” Commonwealth v. Edwards, 588 Pa. 151, 170, 903 A.2d 1139, 1150 (Pa. 2006), quoting Edwards v. Arizona, 451 U.S. at 484-85 (1981). Furthermore, when a defendant invokes his right to counsel, a confession secured afterward will be suppressed unless the defendant not only “’[initiated] further communication, exchanges or conversations with the police,’ [but also] knowingly and intelligently waived the right to counsel.” Id., quoting Commonwealth v. Hubble, 509 Pa. 497, 510, 504 A.2d 168, 175 (Pa. 1986), cert. denied 477 U.S. 904 (1986).

If the police do subsequently initiate an encounter in the absence of counsel, the suspect’s statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards. This is ‘designed to prevent badgering a defendant into waiving his previously asserted Miranda [right to counsel] rights...’

Commonwealth v. Hayes, 755 A.2d 27, 32-33 (Pa. Super. 2000), quoting Commonwealth v. Wyatt, 669 A.2d 954, 956-957 (Pa. Super. 1995) and McNeil v. Wisconsin, 501 U.S. 171, 174-177(1991).

Here, the defendant’s repartee with the detectives was not a request for counsel, but a disinclination to speak with District Attorney Martin. His statement “[h] e’s your attorney not mine” is not a request for counsel, but represents the defendant’s belief that District Attorney Martin was aligned with the detectives. The defendant’s comments are, at best, ambiguous and equivocal. In light of his willingness to speak to the detectives and attempt to convince them that he was not involved in the shooting, there is no evidence these comments represented an invocation of his right to counsel. See Smith v. Illinois, 469 U.S. 91, 96 (1984); Hubble, 504 A.2d at 174-176 (Pa. 1986); Commonwealth v. Colon, 846 A.2d 747, 757-759 (Pa.Super. 2004); Commonwealth v. Waggoner, 540 A.2d 280, 287-289 (Pa.Super. 1988); What Constitutes Assertion of Right to Counsel Following Miranda Warnings - State Cases, 83 ALR 4th 443 (1991). “To hold that every utterance of the word ‘lawyer’ automatically erects the Edwards' ‘cone of silence’ around the accused, thus insulating him from all further police-initiated questioning and communication, would be far too rigid and would not serve the interests or needs of justice.” Hubble, 504 A.2d at 175 [emphasis in original].

C. Right to Remain Silent

Detective Boyer concluded the initial questioning of the defendant by asking him if he had anything else to say “before we end this interview.” The defendant responds by saying “no,” and the interview is stopped at 11:30 p.m. It is the defendant’s claim that those comments, coupled with a portion of Detective Landis’ report, demonstrate that the defendant exercised his right to remain silent.

In Berghuis supra., at 2260, the Supreme Court held “there is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel.” Id. If an accused wants to invoke his right to remain silent he must do so unambiguously.

In Miranda v. Arizona, 384 U.S. 436 (1966), the right to remain silent and the obligations placed upon law enforcement were explained as follows:

If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person who invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.

Id., 384 U.S. at 473-74, 86 S.Ct. at 1627 (emphasis added).

Then, in Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), the court interpreted the above-quoted passage from Miranda in order to answer the question of whether, and under what circumstances, police may resume questioning of a suspect who invoked his right to remain silent. In fashioning a rule, the court opined:

Through the exercise of his option to terminate questioning [the suspect] can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect aperson’s exercise of that option counteracts the coercive pressures of the custodial setting. We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether the “right to cut off questioning” was “scrupulously honored(footnote omitted.)

Id, 423 U.S. at 103-104, 96 S.Ct. at 326 (emphasis added).

Here, the interview was ended by Detective Boyer, not by the defendant. Nothing in the transcript even suggests that the defendant was exercising his right to remain silent, either ambiguously or unambiguously. The only pertinent request made by the defendant was an opportunity to speak with his mother. The police honored that request, and the defendant consulted privately with his mother prior to any further questioning. When the questioning was resumed, the defendant acknowledged that he agreed to talk with the detectives if he was given the opportunity to speak with his mother.

It is apparent that even under the defense theory the police “scrupulously” protected the defendant’s right to remain silent. The second segment of the interview did not take place for over two hours after the initial interview, and with the defendant’s mother present. The defendant once again acknowledged his Miranda rights and agreed to speak about the shooting. Nothing in the record suggests police coercion or that the defendant made an unambiguous request to remain silent.

For all the foregoing reasons, the motion to suppress the defendant’s statements must be denied.

ORDER

And now, this January 14, 2011, following hearings held in this matter and consideration of memorandum of law submitted by counsel;

It is hereby ordered that the “motion to suppress statements of defendant” is denied.

      . 18 Pa. C.S. § 2501(a).

      . 18 Pa. C.S. § 901(a), § 2501(a).

      . 18 Pa. C.S. § 2702(a)(1), (4).

      . 18 Pa. C.S. § 6105(a)(1).

      . 18 Pa. C.S. §6110.1(a).

      . On December 7, 2010, the date the hearing commenced on the Omnibus pre-trial motions, the “motion for decertification from adult criminal proceedings and transfer to Juvenile Division of the Lehigh County Court of Common Pleas” was withdrawn by defense counsel. Additionally, the defendant’s supplemental omnibus pre-trial motion nunc pro tunc was granted, and as a result, the charge of persons not to possess, use, manufacture, control, sell or transfer firearms was severed from the remaining charges.

      . Omnibus pre-trial motions, ¶32.

      . The defendant, during his interview with the police, told them that he had not been living with his mother for approximately three (3) months. Transcript of interview, p. 13.

      . Commonwealth’s Exhibit 1.

      . Transcript of interview, p. 20.

      . Id. pp. 21,23,35.

      . Id.

        . Id. pp. 24,29-34.

      . Id. p.25.

      . The court in Perez also identified as other relevant factors “the accused’s age; his level of education and intelligence; the extent of his previous experience with police; the repeated and prolonged nature of the questioning; the length of detention prior to the confession; whether he was advised of his constitutional rights; whether he was injured, ill, drugged, or intoxicated when he confessed; whether he was deprived of food, sleep, or medical attention; and whether he was physically abused or threatened with abuse.” Perez, 845 A.2d at 785, citing People v. Cipriano, 429 N.W.2d 781 (Mich. 1988).

      . The depth of the defendant’s delinquent history is revealed in Commonwealth’s Exhibit 5. On February 1, 2006, he was adjudicated delinquent in Lehigh County on charges of Possession of Weapon on School Property, namely a BB gun and a straight razor. He was 12. On March 31, 2008, he was adjudicated delinquent in Northampton County on charges of Simple Assault and Burglary, which occurred on January 18, 2008, and March 15, 2008, respectively. The burglary involved the defendant entering a garage with a conspirator and removing items, including a loaded 22 caliber pistol.

      . Commonwealth’s Exhibit 5. Independent Psychiatric Evaluation prepared by Larry E. Dumont, M.D., p. 3.

      . Transcript of interview, p. 19.

      . 451 U.S. 477(1981).

      . Transcript of interview, p. 19.

      . Police were found to have “scrupulously honored” an assertion of the right to remain silent where questioning ceased immediately, was resumed only after a significant period of time, and was preceded by a fresh set of Miranda warnings. See Mosley, 423 U.S. at 106, 96 S.Ct. at 327 (Police immediately ceased the interrogation and resumed questioning after the passage of two hours and a fresh set of warnings, and, police did not question on the subject matter of the earlier interrogation); Commonwealth v. Russell, 938 A.2d 1082, 1091 (Pa.Super. 2007) (Police questioning after invocation of a defendant’s right to remain silent is not a per se violation of that right. Police ceased questioning upon the request of the defendant, and only resumed it two hours later after defendant agreed to speak and Miranda warnings were provided); Commonwealth v. Rose, 265 Pa. Super. 159, 167-68, 401 A.2d 1148, 1153 (1979) (defendant decided to remain silent and no interrogation look place until, approximately two and one-half hours later, police confronted the defendant with additional information, issued fresh Miranda warnings, and obtained an inculpatory statement after the defendant waived his rights); Commonwealth v. Reiland, 241 Pa. Super. 109, 114, 359 A.2d 811, 814 (1976) (Defendant expressed equivocation about his willingness to talk at time of arrest, police asked no further questions but transported him to police station where he was rs-Mirandized and then made incriminating statements).

      . Transcript of the interview, p. 20.

      . It was proper for defense counsel to use the report of Detective Landis in an attempt to impeach him, and suggest that the defendant exercised his right to remain silent. Commonwealth v. Melendez, 474 A.2d 617, 620 (Pa.Super. 1984). Police should use punctilious care in drafting their reports. However, aside from what this Court interprets as poor wording, there is nothing in the defendant’s recorded statement that supports the claim that he invoked his right to remain silent.