author: GEORGELIS, J.,

text:
    Roda v. Roda

      C.P. of Lancaster County,
    no. CI-97-13908.

      William W. Boyd, for plaintiff.

      John E. Huber, for defendant Roda.

      Anthony Marc Hopkins, for defendant Shank.
    March 26, 1998
   GEORGELIS, J.,

March 26,1998. Before me are the prehminary objections of the defendant, Wendy S. Roda, and the preliminary objections of the defendant, Christopher Shank, both to the plaintiff’s complaint. They raise the viability of an intentional infliction of emotional distress claim in a custody dispute setting. Both sets of objections will be sustained.

The complaint alleges that: the plaintiff and the defendant Roda are the parents of two minor children; the defendant Shank is the paramour of the defendant Roda; the custody of the children is controlled by a court order; the plaintiff, pursuant to that order and with the agreement of the defendant Roda, was on vacation with the children in Wheeling, West Virginia; the defendants, with the assistance of Wheeling police officers, forcibly took custody of the children from the plaintiff; and, as a result, the plaintiff suffered, and continues to suffer, extreme emotional distress and emotional shock, for which he has received medical and psychological treatment. Count I of the complaint, although not so specifically identified, appears to state a cause of action for the tort of intentional infliction of emotional distress. Viewed together, the defendants’ preliminary objections are on the grounds that the cause of action is precluded by the pending custody proceeding and that it does not sufficiently plead a claim for the intentional infliction of emotional distress.

Our Supreme Court, in Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988 (1987), addressed the tort of intentional infliction of emotional distress. Even though Kazatsky was not decided in the context of a custody dispute, it clearly sets forth Pennsylvania law on the tort of intentional infliction of emotional distress. In adopting section 46 of the Restatement (Second) of Torts, our Supreme Court noted that the “gravamen of the tort of intentional infliction of emotional distress is outrageous conduct on the part of the tort-feasor.” Id. at 190, 527 A.2d at 991.

It then quoted section 46(1) of the Restatement as follows:

“One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.” Id. at 190, 527 A.2d at 991.

It then referenced portions of the commentary to section 46 as follows:

“The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’
“The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one’s [sic] feelings are hurt. Restatement (Second) of Torts §46 comment, d. (1965).” Id. at 190-91, 527 A.2d at 991-92.

The essence of the plaintiff’s intentional infliction of emotional distress claim is that defendant Roda had authorized the plaintiff to take their children on vacation and, in obtaining the assistance of the police to take the children away from him, represented that she had not so authorized. The custody dispute between the plaintiff and defendant Roda is before our court in Kenneth M. Roda v. Wendy S. Roda, no. 3063 of 1995, and that action has been, at times, before me. I have entered some of the orders in that action, and I am fully aware of the extremely strained relationship between the plaintiff and the defendant Roda, which relationship exists as a result of the custody dispute. On September 3, 1997, after consideration of defendant Roda’s petition for emergency special relief, I suspended the plaintiff’s partial custody of the children and directed strict supervision of any contact he was to have with the children. This action was taken because of very serious concerns I had regarding the plaintiff’s abuse of prescription medication while the children were in his care.

Based on the record of the custody action, I believe that defendant Roda’s concerns for the well-being of the children are legitimate. Accordingly, I do not believe that her actions to remove them from the custody of the plaintiff on July 18, 1997 even begin to approach the level of outrageous conduct required by the Restatement and by Kazatsky, supra. That is, I simply cannot imagine that “an average member of the community” would exclaim “outrageous” in describing defendant Roda’s conduct, given the plaintiff’s history in the custody action. Even though the plaintiff’s feelings may have been hurt by defendant Roda’s conduct and even though her acts may have been inconsiderate and unkind, I do not believe they rise to the level of outrageousness mandated by Kazatsky to state a cause of action for the intentional infliction of emotional distress. Her conduct cannot fairly be described as going “beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” See Kazatsky v. King David Memorial Park, 515 Pa. 183, 190, 527 A.2d 988, 991 (1987).

Furthermore, allowing the plaintiff’s emotional distress claim to survive would set, I believe, a very dangerous precedent. In this case, it would encourage defendant Roda’s emotional distress counterclaim, and, in many cases, it would encourage the removal of the resolution of this type of problem from what I believe is the appropriate forum, namely the custody action. For these reasons, I believe that the plaintiff’s claim for the intentional infliction of emotional distress must be dismissed.

Accordingly, I enter the following:

ORDER

And now, March 26, 1998, for the reasons noted in the foregoing opinion, the preliminary objections of the defendant, Wendy S. Roda, and the preliminary objections of the defendant, Christopher Shank, both to the plaintiff’s complaint are sustained, and Count I of the complaint is dismissed.


source: Caselaw Access Project

author: FARINA, J.,

license: Public Domain

text:
    Zhu v. Erie Insurance Group

      C.P. of Lancaster County,
    no. CI-97-07298.

      Michael P. McDonald, for plaintiff.

      William E. Benner Jr., for defendant.
    February 25, 1998
   FARINA, J.,

Before the court is plaintiff Yuchen Zhu’s motion to vacate an arbitration award entered under 42 Pa.C.S. §7301 of the Uniform Arbitration Act. For the reasons that follow, the motion will be denied.

On February 3, 1991, plaintiff Yuchen Zhu was a passenger in a motor vehicle that was involved in a serious accident caused by the alleged negligence of another driver. The car in which Zhu was a passenger was owned by Wai Ming Sham and Lisa Sham (the insureds) and insured by Erie Insurance Group. Zhu suffered serious and extensive bodily injuries and made a policy limit demand against the tort-feasor’s insurance carrier, which it paid. Because Zhu claimed damages which exceeded the limits received, he subsequently demanded underinsured motorist (UIM) coverage from Erie available to him as a passenger of the Shams’ vehicle. Erie responded that while the Shams’ bodily injury liability coverage was $100,000 per person and $300,000 per occurrence, UIM coverage was limited to $15,000 per person and $30,000 per occurrence as a result of the insureds’ waiver of the standard uninsured (UM) and UIM limits.

At the time of the accident, the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1731, required that UM/UIM limits be equal to bodily injury liability limits unless insureds waived this condition by means of a statutorily mandated waiver form entitled “important Notice” and containing the language set forth in75Pa.C.S.§1791. The Shams signed a written waiver of UM/UIM in the insurance application but it did not comply with section 1791. The ordinary consequence of this statutory violation is that UM/UIM policy limits are deemed to equal the bodily injury policy limits, unless the insurer can otherwise establish a valid and effective waiver of UM/UIM coverage by the insureds. Thus, Erie must prove that the Shams’ nonstandard (i.e., statutorily defective) waiver was effective, otherwise their UIM coverage would remain the same as the bodily injury liability coverage, $ 100,000 per person and $300,000 per occurrence.

Pursuant to the terms of the insurance policy, the parties submitted this case to arbitration on May 20, 1997. The parties agreed to bifurcate the legal issue and the issue of damages. During arbitration, the panel heard evidence concerning whether the Shams voluntarily elected UIM limits in an amount less than their liability limits. The arbitration panel found 2-1 that Erie had met its burden of showing that the waiver was effective.

Both parties agree that the policy provides for underinsured motorist arbitration pursuant to the Arbitration Act of 1927. The scope of review under the Arbitration Act of 1927, known as the error of law standard, provides as follows:

“A court in reviewing an arbitration award pursuant to this subchapter shall, notwithstanding any other provision of this subchapter, modify or correct the award where the award is contrary to law and is such that had it been a verdict of a jury, the court would have entered a different judgment or a judgment n.o.v.” 42 Pa.C.S. §7302(d)(2).

Thus, judgment n.o.v. review standards are applicable to arbitration awards in UM/UIM cases. Grant of judgment n.o.v. is appropriate only in a clear case, one where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. Rowinsky v. Sperling, 452 Pa. Super. 215, 220, 681 A.2d 785, 788 (1996). A court must determine whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner the benefit of every reasonable inference that can reasonably be drawn from the evidence and rejecting all unfavorable testimony and inferences. Id. Every inference of fact must be drawn in favor of sustaining the arbitration award. Boyle v. State Farm Mutual Automobile Insurance Co., 310 Pa. Super. 10, 456 A.2d 156 (1983).

Applying these principles of law to the present facts, and viewing the evidence presented to the arbitration panel in a light most favorable to Erie, the award winner, the following facts emerge. Mr. and Mrs. Sham signed a waiver that did not comply with section 1791 in the insurance application electing lower UM/UIM coverage. Mrs. Sham testified that she customarily read and understood documents before signing them, otherwise she would not sign a document. Pursuant to her custom, the arbitrators could infer, and Mrs. Sham testified, that she would have read the provision of the policy entitled “Selection of Lower Limits of Uninsured/Underinsured Motorist Coverage” before signing it. That section provides “I/We, the named insured, reject uninsured/underinsured motorist coverage limits equal to my/our bodily injury liability limits. Instead, I/We select uninsured/underinsured motorist coverage limits of: $15 per person [$15,000], $30 per accident [$30,000].” Mrs. Sham testified that this provision was something she could understand and if she had questions she would have asked them.As the Erie policyholder, Mrs. Sham is not claiming she did not get the coverage for which she paid and thought she was getting; she understood that the waiver provision was “something different than the regular policy . . . [t]hat it became the 15/30 for a car.” Mrs. Sham further testified that her husband at the time of the signing, now her ex-husband, was also in the practice, custom, or habit of reading and understanding documents before they were signed.

David Gebhard, the insurance agent who sold the policies to the Shams, testified that he first interacted with the Shams when he helped Mr. Sham purchase business and health insurance for his restaurant. More notably, Mr. Gebhard remembered that Mr. Sham customarily asked many questions and was very detailed in what he wanted as compared to other customers who only wanted to know the bottom line price of the policy. As for the February 1990 auto insurance policy with Erie, Mr. Gebhard testified that although he remembers meeting with the Shams to discuss this policy, he does not remember the specifics of the discussion. Customarily, Mr. Gebhard automatically quoted $100,000/$300,000 coverage for both liability and UM/UIM coverage because the more business he sold, the more money he made; he knew he would get more business quoting higher limits. During 1990, Mr. Gebhard testified that he was aware UM/UIM coverage had to be offered in an amount equal to liability coverage and that lowering these limits required a written waiver. According to his custom, Mr. Gebhard testified that he was definitely certain he would have quoted a $100,000/$300,000 limit and that in order to lower these limits, a customer would have to specifically request that they wanted lower limits. Once a customer requested lower coverage, Mr. Gebhard would explain UM/UIM coverage. Before a customer signed the application, Mr. Gebhard testified that he would go over the policy page by page which included, if applicable, reviewing the section which lowered limits of UM/UIM coverage.

Pamela Evans, also an Erie insurance agent, testified that she had written an automobile policy for Mr. Sham in January of 1995, issued by Progressive Insurance Company. This policy had bodily injury liability coverage in the amount of $50,000 per person, $100,000 per accident and UM/UIM coverage in the amount of $15,000 per person and $30,000 per accident, but the lower UM/UIM limits were accomplished with the statutorily required section 1791 waiver form.

The issue which the arbitration panel addressed is whether sufficient evidence was presented to establish that the insureds waived the higher bodily injury limits for their UM/UIM coverage. The leading case defining the insurer’s burden of proof is Johnson v. Concord Mutual Insurance Co., 450 Pa. 614, 300 A.2d 61 (1973), in which the Pennsylvania Supreme Court held that “a waiver of uninsured motorist coverage is effective only if the waiver manifests the intentional relinquishment of this legislatively granted right of insurance protection.” Id. at 620, 300 A.2d at 64. “To constitute a waiver of a legal right, there must be a clear, unequivocal and decisive act of the party with knowledge of such right and an evident purpose to surrender it.” Id. at 620, 300 A.2d at 65. (citations omitted)

In Tukovits v. Prudential Insurance Co. of America, 448 Pa. Super. 540, 672 A.2d 786 (1986), the Superior Court established a two-prong test to determine whether an insured made a knowing and intelligent election in writing for lower UM/UIM coverage. Id. First, the court questioned whether the insured was made aware of the coverage that was available, then, secondly, the court looked to events which occurred prior to and after the written election for further evidence that the insured acted knowingly and intelligently. Id. at 548, 672 A.2d at 790. The court referred to possible relevant events which might establish the knowing and intelligent component of waiver such as whether the insured previously obtained the same level of UM/UIM coverage, whether the premiums paid reflected the reduced level of coverage, whether the insured ever questioned the level of UM/UIM coverage, whether vehicles were amended or added to the policy, and whether the forms evidencing the transaction reflect the level of coverage. Id.

The Superior Court in Tukovits held that the trial court’s entering summary judgment upon finding no waiver of higher bodily injury limits for UIM coverage was proper where the trial court found there was no evidence that the deceased insured was informed of or that he waived the benefits and limits available for or that he understood UIM insurance. Id. at 550, 672 A.2d at 790. The court recognized that evidence of numerous renewals and amendments tended to raise an inference that the insured knowingly reduced his UM/UIM coverage when he signed the waiver. Id. at 550, 672 A.2d at 791. Yet, because of the death of the insured and the insurance agent, no testimonial evidence was available to establish that the insured read the policy, had it explained to him, or realized the magnitude of making and signing the waiver. Id. Without such evidence, the court found the remaining evidence insufficient to prove waiver as a matter of law. Id.

Given the facts established and the legal principles to be applied, we are satisfied that Erie presented sufficient evidence for the arbitrators to find that the Shams’ waiver was effective. Here, unlike in Tukovits, there was ample testimonial, direct and circumstantial evidence to infer that the insureds read the policy, had it explained to them, understood it, and realized the magnitude of waiving the higher bodily injury limits for lower UM/UIM coverage when they signed the waiver in the policy application. Mrs. Sham testified that both she and her husband customarily asked questions and did not sign things until they understood them. Further, Mr. Gebhard testified that he, in February 1990, during the time period he sold the policy to the Shams, customarily quoted UM/UIM limits equal to bodily injury liability limits to new policyholder prospects. Lower UM/UIM limits were not offered unless the customer specifically requested them. Viewing the facts in a light most favorable to Erie, the award winner, the evidence was sufficient for the arbitrators to conclude the Shams were aware of the nature of UM/UIM coverage that was available to them.

Turning to the second prong of Tukovits, sufficient evidence was presented for the arbitration panel to infer that the insureds acted knowingly and intelligently. Mrs. Sham testified that both she and her husband would have read the section of the policy entitled “Selection of Lower Limits of Uninsured/Underinsured Motorist Coverage” and would have asked questions if there was any part they did not understand. Mr. Gebhard specifically remembered that Mr. Sham was a more sophisticated buyer of insurance in that he customarily asked questions and did not merely ask for the “bottom line” price of the coverage. The language contained in the policy specifically states that the insureds were rejecting UM/UIM motorist coverage limits equal to their bodily liability limits and instead were selecting lower UM/UIM coverage. While proof of subsequent acts or knowledge standing alone will ordinarily not support a finding that such knowledge existed on an earlier date, the evidence that Mr. Sham subsequently lowered his UIM limits supports an inference, when coupled with the other supporting evidence, that Mr. Sham may have known of this alternative in 1990 when the Erie policy was obtained. Also significant is Mrs. Sham’s testimony that as a policyholder, she was not seeking to challenge the UM/UIM coverage limits. Based upon all the evidence, the arbitrators cannot be faulted for concluding the Shams knew exactly what they were doing when they elected lower UM/UIM limits.Mr. Zhu, a stranger to the policy, is unconvincing in his claim the Shams did not effectively waive their coverage.

Accordingly, we enter the following:

ORDER

And now, February 25, 1998, upon consideration of petitioner Yuchen Zhu’s motion to vacate an arbitration award and the briefs of the parties in regard thereto, the motion is denied.

      . Notes of Arbitration Testimony (N.A.T.) at 12, 36.

      . Id. at 7.

      . Id. at 8, 13.

      . Id. at 8.

      . Id. at 10, 29.

      . Id. at 11.

      . N.A.T. at 42.

      . Id. at 44.

      . Id. at 45.

      . Id. at 47-48.

      . Id. at 49.

      . Id. at 49.

      . N.A.T. at 50-51.

      . Id. at 52-53.

      . Id. at 85-87.

      . Although the evidence of waiver by Mr. Sham may not be as compelling as that of Mrs. Sham, it is sufficient. Moreover, the law appears to be that waiver by one joint named insured is sufficient to bind all named insureds in a policy. Hepler v. Liberty Mutual Fire Insurance Co., 7 D.&C.4th 521 (Cumb. Co. 1990); Liberty Mutual Fire Insurance Co. v. Lindsey, 3 D.&C.4th 659 (York Co. 1989).


text:
    Giacomucci v. Southeast Delco School Dist.

      C.P. of Delaware County,
    no. 98-5805.

      David Silberman and Thomas P. Hamilton, for plaintiffs.

      Robert M. Diorio and Clint Bolick, for defendants.
    October 14, 1998
   BATTLE,J.,

The Board of School Directors of the Southeast Delco School District held a special meeting on March 18, 1998. At the special meeting, the school board adopted a resolution which established the “School Choice Enrollment Stabilization Plan.” This plan is routinely referred to as the “voucher plan.” A summary of the voucher plan, in relevant part, provides as follows.

“(1) The plan is effective for the 1998-1999 school year.
“(2) The school district will provide a tuition scholarship for any student legally residing in the Southeast Delco School District who chooses to attend any other public or private school, at which the compulsory attendance requirements of state law may be fulfilled.
“(3) Scholarships are in the following amounts:
“(a) Kindergarten: $250
“(b) Grades 1-8: $500
“(c) Grades 9-12: $1,000
“(4) The scholarship payment will be made to an eligible student’s parent as reimbursement of funds paid for tuition at a non-district-operated school.”

The plaintiffs in this matter are either taxpayers of the Southeast Delco School District and/or parents of students attending the Southeast Delco School District schools. The plaintiffs have filed a seven-count complaint in equity for declaratory and injunctive relief to prevent the board of school directors and the school district from using public funds to pay tuition for school district children to attend private schools, including sectarian private schools. The plaintiffs contend that the defendants are without statutory authority to make such payments and that the voucher plan violates multiple provisions of the constitution of the Commonwealth of Pennsylvania. The first two counts of the complaint allege that the school district does not have statutory authority to implement the voucher plan. The remaining five counts of the complaint allege constitutional violations.

The plaintiffs have also filed a motion for judgment on the pleadings relative to the first two statutory counts of the complaint. That motion is the subject of this opinion.

The Pennsylvania courts have long recognized that school districts are statutory creatures and, as such, have no power except by express statutory grant and necessary implication. See Mulligan v. School District, 241 Pa. 204, 207, 88 A. 362, 365 (1913); Erie School District v. Fuess, 98 Pa. 600, 606 (1881); Wilson v. Philadelphia School District, 328 Pa. 225, 231-32, 195 A. 90, 95 (1937); and Earth v. Philadelphia School District, 393 Pa. 557, 561-64, 143 A.2d 909, 911-12 (1958). Therefore, there are two questions presented. First, is whether the Public School Code of 1949, 24 P.S. §101 et seq., expressly grants to the Southeast Delco School District the unrestricted power to use public school funds to make payments to school district students’ parents to reimburse the parents for tuition paid to other schools. If there is no such express authority in the Public School Code, then the question is whether such a power is necessarily implied from some express power granted to the school district. The school district cites the following statutory language and case law in support of it having the express authority by statute to implement the voucher plan:

“(1) 24 P.S. §2-211 provides that ‘the several school districts in this Commonwealth shall be, and hereby are vested as, bodies corporate, with all necessary powers to enable them to carry out the provisions of this Act.’
“(2) 24 P.S. §5-510 provides that ‘the board of school directors of any school district may adopt and enforce such reasonable rules and regulations as it may deem necessary and proper, regarding the management of its school affairs.’
“(3) ‘Although a school district’s powers are limited to its statutory grant, this grant is a broad one.’ Parents United for Better Schools Inc. v. School District of Philadelphia Board of Education, 978 F. Supp. 197, 202 (E.D. Pa. 1997), aff’d, 1998 U.S. App. Lexis 15194 (3d Cir. July 9, 1998) (upholding districts condom distribution program under Pennsylvania School Code).
“(4) Walker v. School District of City of Scranton, 338 Pa. 104, 12 A.2d 468 (1940) which provided that:
“Each school board is empowered to administer the public school system within its school district. To enable it to do so efficiently and in the best interests of the children, it may adopt and enforce reasonable rules and regulations. . . . The aim and object of our school system is to provide the best education for the children of the Commonwealth. It cannot be doubted that it was the intention of the legislature to subordinate all other considerations.
“(5) Commonwealth ex rel. Hetrick v. School District of the City of Sunbury, 335 Pa. 6, 6 A.2d 279 (1939) stands for the proposition that the duty of devising methods to meet the obligation of obtaining the best educational facilities for the children of a Commonwealth devolves upon the local school boards.
“(6) Danson v. Casey, 484 Pa. 415, 399 A.2d 360 (1979) provided that the framers of our Pennsylvania Constitution endorsed the concept of local control to meet diverse local needs and took notice of the right of local communities to utilize local tax revenues to expand educational programs subsidized by the state. The Danson case involved a challenge to the funding of schools through local property taxes due to funding inequalities.”

The plaintiffs in the case at bar argue that the Public School Code grants school districts the powers necessary to establish and maintain public schools pursuant to 24 P.S. §§5-501 through 5-505. The Public School Code further provides, at 24 P.S. §13-1310(a) that the school board shall subdivide the school district in such a manner that all pupils in the district shall be assigned to, and reasonably accommodated in, one of the public schools within the district. The School Code further provides that the school board is to provide for the necessary grounds and suitable school buildings for the public schools pursuant to 24 P.S. §7-701, to purchase, “to construct, and to maintain those grounds and facilities pursuant to 24 P.S. §§7-701 through 7-791,” and to purchase all necessary furniture, equipment, textbooks, school supplies, and other appliances for the use of the public schools pursuant to 24 P.S. §8-801.

A commonsense reading of the Public School Code results in a finding that there is not any express authority granted by statute to a school board to provide the parents of school district students with sums of money as tuition reimbursement for tuition paid to non-school district schools. While the school district has cited general provisions of the School Code and case law indicating that school districts have broad authority, there is no specific cite of any authority granted to a school district to reimburse a school district parent for tuition paid to non-school district schools. Therefore, this court must consider whether there is any statutory language which would necessarily imply that school districts have a right to provide tuition reimbursement for non-school district schools. The school board cites statutory authority for the provision of specific types of aid to private school students. The issue in the case at bar is not whether certain types of aid may be provided to private school students. The issue in the case at bar is whether the reimbursement of tuition paid to non-district schools is necessarily implied from the express grant of authority given to school districts under the Public School Code. Further, constitutional provisions cited by the school district are not relevant in the case at bar. We are here dealing only with the statutory provisions of the School Code. Due to the fact that there is statutory authority for school districts to provide certain types of assistance to non-district schools does not necessarily imply that there is statutory authority for school districts to provide other types of assistance to non-school district schools or assistance to district parents to enable their children to attend a non-school district school.

The school district notes that the purpose of the voucher plan is to ease the overcrowding of the public schools within the district and to assist in reducing costs to the district. Certainly, the plan has been implemented for good purposes. However, because the plan has been implemented for good purposes does not mean that the plan is statutorily authorized. This court can find nothing within the Public School Code which necessarily implies that the school district has the authority to provide tuition reimbursement to parents whose children are attending non-district schools. Rather, this court finds that the statutory provisions of the School Code necessarily imply just the opposite. The Public School Code, as previously indicated, provides that school districts are to maintain sufficient numbers of public schools (24 P.S. §§5-501 through 5-505), that the school board is to subdivide the school district in such a manner that all pupils in the district shall be assigned to, and reasonably accommodated in, one of the public schools in the district (24 P.S. §1310(a)), the school board is to provide for the necessary grounds and suitable school buildings for the public schools of the district (24 P.S. §7-701), and to purchase, construct, and maintain those grounds and facilities (24 P.S. §§7-701 through 7-791). The necessary implication from the provisions of the code is that the school district is to provide sufficient schools for the public school students of the district. There is no necessary implication that the school board is to provide for tuition reimbursement for students attending non-district schools in an effort to ease school overcrowding or to lessen school district expenses.

For all of the foregoing reasons, the plaintiffs’ motion for judgment on the pleadings must be granted.

ORDER

And now, to wit, October 14,1998, it is hereby ordered and decreed that the plaintiffs’ motion for judgment on the pleadings is hereby granted. The defendants are hereby enjoined from implementing and enforcing any and all provisions of the “School Choice Enrollment Stabilization Plan” adopted by the Southeast Delco School Board on March 18, 1998.


author: P.M. SCHMEHL, J.,

text:
    In re J.V.N.

      C.P. of Berks County,
    no. 75560.

      Stanley J. Kuter, for petitioners.

      David R. Poliak, for respondent.

      John J. Grenko, guardian ad litem for J.V.N. Ill
    October 29, 1998
   P.M. SCHMEHL, J.,

This matter is before the court on a petition for involuntary termination filed by J.V.N Jr., Father, and his wife, D.L.N., on August 3, 1998. The petitioners seek to terminate the parental rights of M.F., Mother.

The basis for the petitioners’ request for involuntary termination is 23 Pa.C.S. §2511(a)(l): Mother “by conduct continuing for a period of at least six months either evidenced a settled purpose of relinquishing parental claim to [J.V.N. Ill] or has refused or failed to perform parental duties.” In support thereof, the petitioners aver that Mother has had no contact with J.V.N. Ill since before October 19, 1992 when a court order, prohibiting Mother from contact with Father’s family, was entered in the custody action. They also aver that Mother has never provided monetary support for J.V.N. Ill and that, based on her previous actions in dealing with them, she has an inability to have a stable relationship with J.V.N. Ill and Father.

Since their marriage two years ago, Father and D.L.N. have lived in Hamburg with J.V.N. III. They have a harmonious familial relationship in which, by all accounts, J.V.N. Ill is doing well. For the two years which Father and his family have been living in Hamburg, Mother has not known of their whereabouts. Mother did know of Father’s prior Birdsboro address and has had a continuing knowledge of Father’s parents’ residence and phone number.

Father and J.V.N. Ill have not talked about Mother in the last two years; however, once in a while J.V.N. Ill talks with D.L.N. about Mother. D.L.N. testified that J.V.N. Ill feels threatened by Mother and does not want to go back to his past life because he was left crying and Mother did not care about him.

Mother has had no contact with J.V.N. Ill in the last two years. In the beginning of the custody action Mother had sent cards, but in the last two years she has sent no cards or gifts nor has she made any phone calls to Father, his parents, or J.V.N. III. Mother has not known where Father has been living or working but Father testified that she could have found out where he lived by calling his parents. The court notes, however, that the October 19, 1992 order prohibits such contact. Father testified that the last personal contact he had with Mother was approximately 1992 when she came to his residence in Birdsboro.

Mother’s actions to attempt to maintain or establish a relationship with J.V.N. Ill consisted of phone calls to Father in an attempt to speak to their son. She also filed a petition for modification of the custody order and left gifts for J.V.N. Ill on the premises of Father’s Birdsboro residence.

Father felt the phone calls were of a harassing nature, at least one of which came at 3 a.m. while he was sleeping. Father testified that Mother called at all hours to talk with their son, or she called and simply hung up. As a result, he changed his phone number. Mother testified that she made the phone calls and harassed Father because that is what she was instructed to do by Central Penn Legal Services, although she did not understand why.

In March 1995, Mother filed a petition for modification of the custody order. This action was terminated for lack of activity, but Father believed it was because Mother did not appear for a hearing. Mother testified that she did appear and that when Father came he brought the gifts which she had left on his property for J.V.N. III. Father testified that he returned the gifts because they were used and beaten toys. Mother testified that the toys were brand new. The gifts, when left on Father’s property, bore Mother’s name but were labeled in no other way. Mother never again left gifts because she believed J.V.N. Ill would not get them if she left any. In the six months before Father moved to Hamburg, he received no calls, gifts or visits from Mother.

Mother does not want her son to be adopted by Father’s wife. Mother testified that she has not stopped thinking of her son, that she still wants custody and/or visitation with him, and that he would do fine in her home and with her family. At least in part, she justifies her lack of contact with J.V.N. Ill by a court order which prohibits her contacting him.

Mother also suffers from paranoid schizophrenia. In the past, she has been hospitalized several times for her mental illness and currently takes Zyprexa, a prescription drug. She is supposed to take her medication every day but does not always do so because her 3 1/2-year-old daughter does not like it when she takes the pills and told her not to take this medication. Although her doctor told her to take her medication every day no matter what, she testified that she does not always take her pills so as to test if and how her conduct differs with or without the medication.

The parties stipulated to the facts presented in the report of John Grenko, Esquire, who, at the court’s request, agreed to serve as guardian ad litem for the child. Mr. Grenko’s conclusions and recommendations, to which the parties did not stipulate, will be discussed below as his conclusions, and reasoning therefor, coincide with those of the court.

In a proceeding for involuntary termination of parental rights, the burden of proof is upon the party seeking the termination to establish by clear and convincing evidence the existence of grounds for so doing. E.g., In re E.S.M., 424 Pa. Super. 296, 302, 622 A.2d 388, 392 (1993). In determining whether to involuntarily terminate parental rights, the court must examine the individual circumstances of the case, as well as any explanation offered by the parent, to determine if the evidence, in light of the totality of the circumstances, clearly warrants involuntary termination of that parent’s rights. Id. at 303, 622 A.2d at 392. The parent must exhibit reasonable firmness in attempting to overcome any barriers or obstructive behavior of others, and he or she must affirmatively demonstrate love, protection and concern for the child. Id. In attempting to preserve parental rights, “[a] parent must pursue a ‘course of conduct during the period in question which is consistently aimed at maintaining [the parental] relationship . . . using those sources reasonably available . . . and exercising persistence in attempting to overcome obstacles placed in the path of the parent/child relationship ....’” In re D. J. Y., 487 Pa. 125, 131, 408 A.2d 1387, 1390 (1979). If the court determines that the requirements for involuntary termination of parental rights have been met, the court must further inquire whether termination will clearly serve the “needs and welfare” of the child. In re E.S.M., 424 Pa. Super. at 304, 622 A.2d at 392; 23 Pa.C.S. §2511(b).

Clearly the best interests of the child warrant termination of Mother’s rights. J.V.N. Ill has not had a relationship with his mother, much less a healthy one; whereas, he has a healthy relationship with D.L.N. D.L.N. considers J.V.N. Ill to be her son and he apparently considers her to be his mother. Father, D.L.N. and J.V.N. Ill all exist as a family except in name only, which apparently creates in J.V.N. Ill the fear that he could be torn from his family. The court agrees with Mr. Grenko’s conclusion that it would be better to terminate Mother’s parental rights in order for her son to have a relationship with two parents in the same household. The family, and J.V.N. Ill in particular, needs to move on and cannot be expected to live in the shadow of a mother that has been virtually unknown to her son. Terminating the rights of Mother and allowing an adoption by D.L.N. would give J.V.N. Ill, Father and D.L.N. a sense of permanence in their familial relationship which will greatly benefit the child in all respects, but especially emotionally.

Mother has not been there for J.V.N. III. Mother has had no contact with her son for several years. There has been no in-person visits, no phone calls, no letters, no cards, no gifts. Mr. Grenko was not comfortable recommending termination of Mother’s rights, given the difficult situation of court orders prohibiting her contact with J.V.N. III. The court notes, however, that the March 1992 order prohibiting her from having contact with her son and granting Father legal and physical custody was entered by her agreement; it was not court imposed. The last paragraph of that order even provides that if either party wished to change the terms of the order, that party should file a petition requesting modification. Mother filed such a petition in March 1995 but failed to follow through on the action. In particular, she did not complete the court-ordered evaluations with Lynne Mullís MSW. Furthermore, it was her harassing Father and his family which led to a court order whereby she was to have no contact with them.

For the most part, the obstacles in Mother’s path to having a relationship with J.V.N. Ill were self-caused, but she still had the capability of sending letters, cards and gifts to J.V.N. III. She could have sought legal services in order to maintain or re-establish contact with her son. She could have sought help from the counselors treating her for her mental illness. She did not complete the court-ordered evaluations in her modification of custody action. She did not participate in an evaluation to be conducted by Dr. Rotenberg in 1992, following her alleged suicide attempt. She has not been able to allow others to help her in overcoming her mental illness such that she could take better care of herself and be able to spend time with her son in some meaningful capacity. She even openly admitted that she is influenced in her treatment by her 3 1/2-year-old daughter. The type of thinking displayed by Mother in allowing her daughter to influence her basic treatment concerns Mr. Grenko (as well as the court) about her ability to parent. Mental illness or not, Mother has not done enough to care for herself or for her son so as to preserve her parental rights over him. This lack of care was evident even in the courtroom. She had a flat affect. Nothing rattled her — she just sat there without any real display of emotion. Whether due to her illness or the combination of her illness and the medication, she was there in body only.

Mother has failed to perform parental duties for J.V.N. III. She has not adequately explained her failure and it would clearly be in the best interests of J.V.N. Ill for Mother’s parental rights to be terminated. For the foregoing reasons, the court enters the following decree nisi:

DECREE NISI

And now, October 29, 1998 the petition for involuntary termination of parental rights of M.F. as to minor child, J.V.N. Ill, is hereby granted.

M.F. shall have 10 days from the date of this decree nisi to file exceptions. Failing the timely filing of exceptions, this decree nisi shall become a final order of court.

      . Mother testified that she also sent J.V.N. Ill $15 cash “every now and then” when she was working and could afford it. Father testified that he never received any money from her.

      . The March 31, 1992 order of court entered by agreement of the parties, granted legal and physical custody to Father and further provided that Mother “shall have no personal contact with the . . . child.” Mother was permitted to send cards, gifts and other appropriate items to J.V.N. HI.


author: PRATT, J.,

text:
    Inman v. Ross

      C.P. of Lawrence County,
    no. 10663 of 1994, C.A.

      Richard A. Harper, for plaintiff.

      Matthew T Martgino, for defendants.
    March 10, 1998
   PRATT, J.,

The plaintiff has presented the court with a motion in limine requesting that the court preclude the defendants from presenting any evidence relating to any alleged willful misconduct on the part of the plaintiff in being discharged or terminated by his former employer, defendant New Castle Home Medical, which contract of employment was subsequently assigned to defendant Tri-Medical Rehab Supply Inc.

The plaintiff’s motion is premised on the theory of res judicata in the nature of collateral estoppel or issue preclusion. The plaintiff contends that the ruling by the unemployment compensation referee on October 7,1994, after a full hearing of plaintiff’s unemployment compensation claim, that the plaintiff did not commit any willful misconduct, thereby entitling the plaintiff to unemployment compensation benefits for being terminated by the defendants, prevents the defendants from litigating the same issue in the instant case. Plaintiff argues that the same parties to the instant cause of action were afforded the opportunity during full hearings of the unemployment compensation claim to present evidence, examine witnesses, and present legal arguments, and that the unemployment compensation referee’s findings of fact and conclusions of law prohibit the defendants, in this case, from relitigating the same issues in this case. Consequently, plaintiff asserts that the decision by the unemployment compensation referee is conclusive of the issue of whether the plaintiff committed willful misconduct to justify his termination. This in turn, plaintiff argues, prevents defendants from presenting any evidence relevant to that issue.

The main thrust of plaintiff’s argument is grounded on the ruling in Frederick v. American Hardware Supply Co., 387 Pa. Super. 72, 557 A.2d 779 (1989), as cited in both his memorandum of law in support of motion in limine and supplemental brief in support of motion in limine. In that case, the opinion by Judge Joseph Del Sole, reasoned that, since the issue decided in the unemployment compensation proceedings in that case was the same as the issue being litigated in the later civil cause of action, the judgment of the Unemployment Compensation Board of Review estopped the parties from relitigating the same issue in the civil cause of action. The Superior Court found that all of the elements necessary for applying collateral estoppel were present except the issue of whether the issue litigated in unemployment compensation proceedings was the same or identical to the issue raised or dispositive in the civil cause of action. Having found that the issues were the same, the Superior Court concluded that the doctrine of res judicata, as to issue preclusion under collateral estoppel, prevented the relitigation of the same issue in the later civil cause of action.

Defendants, however, cite the recent case of Rue v. K-Mart Corporation, 456 Pa. Super. 641, 691 A.2d 498 (1997), as a basis for their contention that the prior unemployment compensation litigation and rulings do not preclude the defendants from presenting similar evidence and relitigating its issue of whether the plaintiff was wrongfully discharged in the instant case.

After reviewing the plaintiff’s memorandum of law and supplemental brief and the defendants’ memorandum of law in opposition to the plaintiff’s motion in limine and the Rue v. K-Mart Corporation case and counsel’s oral arguments, this court concludes that, because the Superior Court in the Rue case based its decision on an entirely different theory from that in the earlier Frederick case, the Rue holding is dispositive of plaintiff’s motion.

In Frederick, the court of common pleas case was a breach of an employment contract action for discharging an employee for willful misconduct, whereas in Rue, the civil action was based on defamation against the plaintiff’s employer, the defendant, for allegedly publicizing the plaintiff’s conduct, which supposedly justified the defendant’s action in terminating the plaintiff’s employment.

In Rue, the basis for the Superior Court’s decision was articulated as follows:

“[W]e are not convinced that the facts found in the unemployment compensation case merit preclusive effect in the present defamation action because of the vastly differing policy considerations underlying the two actions. In other words, the different policy concerns between the unemployment compensation system and civil actions mandate two vastly different methods of adjudicating facts, and, thus, we conclude that the unemployment compensation process does not provide a party with the ‘full and fair opportunity to litigate the issue in question’ necessary for the application of collateral estoppel.” Id. at 646-47, 691 A.2d at 500-501.

Thus, the Superior Court in Rue held that collateral estoppel did not preclude relitigating the issue of the plaintiff’s misconduct in the defamation action on the basis that the issue was previously litigated and judgment entered in the unemployment compensation proceedings involving the same parties.

Citing the four conditions which must be met before issue preclusion may be appropriately invoked, including identity of issues and full and fair opportunity to litigate the issue in the prior action, the court in Rue found that it must not merely decide whether the factual determination made in the plaintiff’s unemployment compensation proceeding, on its face, is sufficiently similar to that in the subsequent civil cause of action to merit a preclusion effect via collateral estoppel, but must also determine whether the defendant against whom collateral estoppel was being asserted had a full and fair opportunity to litigate the issue on its merits in the prior unemployment compensation proceeding. The Superior Court, without deciding whether the issue before the unemployment compensation proceeding and the civil cause of action were similar, held that it was “convinced that ‘fast and informal’ nature of the proceedings do not afford a ‘full and fair opportunity to litigate the issue in question’ in the same manner that a [sic] would result from a trial in the court of common pleas.” Id. at 658, 691 A.2d at 506. The court also opined that,

“Increased litigation of unemployment compensation claims caused by the possibility of collateral estoppel in subsequent litigation would seriously jeopardize the unemployment compensation systems [sic] ability to meet its goal of prompt financial support to those persons unemployed through no fault of their own. That alone would be reason enough to refuse to grant preclusive effect to unemployment compensation decision [sic].” Id. at 657-58, 691 A.2d at 506.

The court concluded by stating:

“In sum, we will not approve the lower court’s grant of issue preclusion in this case. To do so would be to hold, in effect, that appellee loses the defamation suit based upon the finding of an unemployment compensation referee, even though significantly different procedures apply and different policies and goals are at stake in the unemployment compensation proceeding. Those policies and procedures operate to render a [sic] unemployment compensation hearing less than a ‘full and fair opportunity to litigate’ the facts relevant to the subsequent action . . . .” Id. at 662, 691 A.2d at 508.

Hence, the court believes that the ruling in Rue controls in this instance, as opposed to the Frederick holding and, resultantly, plaintiff’s collateral estoppel argument is rejected.

The plaintiff argues further that the Supreme Court in Frederick denied allocatur, thereby allowing the holding by the Superior Court in that case to remain the law on the issue and that by granting allocatur in the subsequent case of Rue, the Supreme Court has indicated that the Rue decision is at odds with existing decisions of that court and, therefore, Frederick is controlling. However, this court finds that argument to be without merit, also.

After reviewing the internal operating procedures of the Supreme Court, particularly part V, subsection A, which sets forth the reasons or standards for the Supreme Court granting petitions for allowance of appeal, the court is unable to determine, based on plaintiff’s argument and briefs, the basis for the Supreme Court denying allocatur in Frederick and granting allocatur in the Rue case. Assuming the Supreme Court found, in granting allocatur in Rue, that the holding of the Superior Court in Rue conflicted with another Superior Court opinion (see internal operating procedures of the Supreme Court, part V, subsection A.(l)), that draws into question, not only the Rue holding, but also the decision in Frederick.

This court concludes, therefore, that the Superior Court’s decision in Rue remains good and binding precedent despite allocatur being granted by the Supreme Court to review the holding in that case, particularly if the basis of the Superior Court’s decision in Rue was different from that in Frederick.

Parenthetically, the court notes that, in Frederick, the case was before a three-judge panel of the Superior Court, whereas in Rue, the appeal was heard by the Superior Court en banc, with nine judges sitting and concurring with the decision of the court.

In conclusion, based upon the Rue decision, the court shall deny the plaintiff’s motion in limine, and the defendants at trial shall not be precluded from presenting evidence regarding the conduct of the plaintiff which may be relevant to any contract of employment between plaintiff and the defendants or as a basis for any discharge or termination of the plaintiff by the defendants, or relevant to any other issue before the court.

ORDER

Based on the court’s accompanying opinion, the plaintiff’s motion in limine is denied.


author: MOTTO, J.,

text:
    Commonwealth v. Starr

      C.P. of Lawrence County,
    nos. 737 & 737A of 1997.

      Diane D. Doughty, for Commonwealth.

      David H. Acker, for defendant.
    February 26, 1998
   MOTTO, J.,

Before the court for disposition is the defendant’s omnibus pretrial motion seeking dismissal of all charges filed in the above case and habeas corpus relief, contending that the evidence presented at the preliminary hearing held in this case was insufficient to hold the defendant for court as to all charges and that as to the charge of indecent assault, prosecution of the same is barred by the applicable statute of limitations.

The defendant is charged in the informations filed in this case with two counts of rape, in violation of 18Pa.C.S. §3121-1 and §3121-2; two counts of indecent assault, in violation of 18 Pa.C.S. §3126(A)(1) and §3126(A)(2); and aggravated indecent assault, in violation of section 3125-1 and section 3125-2.

The Commonwealth concedes that the charges of indecent assault and aggravated indecent assault must be dismissed.

Relative to the charge of indecent assault, the applicable statute of limitations found at 42 Pa.C.S. §5552(A) establishes a two-year statute of limitations from the date of commission of the offense. The criminal charges were filed in this case on June 12, 1997. The offense dates testified to at the preliminary hearing were April 22, 1995, and May 8, 1995, both of which were clearly more than two years prior to the date that the criminal complaint was filed on June 12, 1997. Hence, the charge of indecent assault, both counts, must be dismissed.

The defendant next argues that the evidence presented at the preliminary hearing was insufficient to establish a prima facie case of aggravated indecent assault. A necessary element of the aggravated indecent assault is that the defendant engaged in penetration of the alleged victim’s body with a portion of the defendant’s body other than that covered by the general charge of rape. (18 Pa.C.S. §3121.) In other words, the evidence of penetration must be penetration that is other than the ordinary definition of sexual intercourse. (18 Pa.C.S. §3125.)

In the case at bar, the allegation contained in the criminal complaint was that the defendant penetrated the vaginal area of the alleged victim with his hands and/or fingers. Here, as the Commonwealth correctly concedes, a careful reading of the transcript of the notes of testimony of the preliminary hearing, at which the alleged victim testified, clearly demonstrates that there is absolutely no testimony that the defendant penetrated the vagina of the alleged victim with his hands and/or fingers or any body part of the defendant other than that which would ordinarily occur with sexual intercourse. Accordingly, the Commonwealth correctly concedes that the charge of aggravated indecent assault, both counts, should be dismissed and habeas corpus relief granted as to the charge of aggravated indecent assault.

The defendant next argues that the charge of rape, two counts, should be dismissed because the evidence presented at the preliminary hearing failed to make out a prima facie case and that no evidence was presented that the acts of sexual intercourse testified to by the alleged victim occurred through the exercise of forcible compulsion or threat of forcible compulsion.

The relevant statutory provisions relating to the two counts of rape charged in this case are set forth in 18 Pa.C.S. §3121-1 and §3121-2 as follows:

“A person commits a felony of the first degree when he or she engages in sexual intercourse with a complainant:
“(1) By forcible compulsion.
“(2) By threat of forcible compulsion that would prevent resistance by a person of reasonable resolution.

The court must first be mindful of the standard by which it must determine the sufficiency of the evidence presented at a preliminary hearing. At a preliminary hearing, the Commonwealth bears the burden of establishing at least a prima facie case that a crime has been committed and that the accused is probably the one who committed it. Commonwealth v. Prado, 481 Pa. 485, 393 A.2d 8 (1978). It is not necessary for the Commonwealth to establish at this stage the accused’s guilt beyond a reasonable doubt. The Commonwealth is only required to present evidence with regard to each of the material elements of a charge and to establish sufficient probable cause to warrant the belief that the accused committed the offense. Com monwealth v. Wojdak, 502 Pa. 359, 466 A.2d 991 (1983); Lagana v. Office of Attorney General, 443 Pa. Super. 609, 662 A.2d 1127 (1995). In determining whether or not a prima facie case in support of defendant’s guilt has been established, the evidence presented by the Commonwealth must be accepted as true, and be such that it would warrant the trial judge to allow the case to go to the jury. Commonwealth v. Austin, 394 Pa. Super. 146, 575 A.2d 141 (1990). Each element of the criminal offense charged must be supported by the Commonwealth’s evidence. Commonwealth v. Austin, supra; Commonwealth v. Wojdak, supra.

In arguing the failure of the Commonwealth to present sufficient evidence to make out a prima facie case, the defendant contends that the Commonwealth has failed to prove that any alleged act of sexual intercourse that occurred between the defendant and the alleged victim occurred either by forcible compulsion or by the threat of forcible compulsion sufficient to prevent resistance by a person of reasonable resolution.

The evidence which the court must review to determine its sufficiency in terms of establishment of a prima facie case of a charge of rape is the transcript of the testimony given at the preliminary hearing held in this case on July 18, 1997, which has been admitted at the omnibus pretrial hearing as joint exhibit no. 1. At that hearing, the Commonwealth called as its only witness, the alleged victim.

The court will now proceed to summarize the pertinent provisions of the testimony of the alleged victim, accepting as true all portions of that testimony, as the court is required to do at this stage.

The victim testified to being 26 years of age and, for a period commencing approximately three years prior to the dates of the alleged offenses, had been a patient of the defendant, a psychiatrist. The relationship of doctor-patient was in existence at the time of the alleged offenses.

On or about April 22, 1995, the defendant came to the alleged victim’s home at approximately 3 a.m. The alleged victim suspected that the defendant would be coming, because he had called her at least twice the evening prior thereto. When the defendant called and stated that he wanted to come to the alleged victim’s home, she attempted to dissuade him by stating that her boyfriend would be coming home shortly.

The alleged victim was sleeping on the couch when the defendant knocked on her door.

The alleged victim answered the door and defendant asked if he could come in and talk to her for a minute.

The alleged victim consented and she and the defendant walked up two flights of stairs and entered the living room area of the alleged victim’s apartment. The alleged victim sat on the couch and the defendant sat down right beside her and began touching her in between her legs and up her shirt. The alleged victim was wearing black stretch pants and a long black nightshirt. She told him “no” and said that she was on her period, in order to induce him to quit touching her between her legs. The defendant responded by stating that at least he would not get her pregnant. The defendant then placed the alleged victim on the floor, unzipped his pants and pulled her pants down and then proceeded to have sexual intercourse with the alleged victim. The defendant then got up, zipped his pants up and walked out.

The next event occurred on May 8, 1997, when the defendant came back to the apartment of the alleged victim. The defendant arrived at approximately 9 p.m. and asked if the alleged victim had an extra blue garbage bag. The alleged victim ran up the steps to try and get the bag to give to defendant, and the defendant followed her up the steps. The defendant went into the alleged victim’s bedroom while the alleged victim was in the kitchen. The defendant began undressing while the alleged victim was in her kitchen. The alleged victim was scared and did not know what to do or say. At the time, she was alone in the apartment with her 3-month-old baby girl in her crib. She was “scared” that if she tried to get her child and run, that the defendant would make something up and have her daughter taken away from her or have her (the alleged victim) “put away somewhere.” The alleged victim felt this way because the defendant was a psychiatrist and he had the power to write anything in the notes or anything about a person. The alleged victim then walked into the bedroom and sat on the edge of the bed. The defendant pulled her back, laid her on the bed and had intercourse with her.

On the first occasion that the defendant came to the alleged victim’s home, the defendant told her that he was “tipsy” from drinking because he was celebrating his first divorce hearing in Butler. The alleged victim could smell alcohol on the defendant. The alleged victim also stated that he was acting like a different person, being very forceful and demanding, which frightened her. She testified that she was frightened because he said he was going to do it anyway, even though she had told him that she was on her period and had told him “no.”

The alleged victim reaffirmed in her testimony her fear of being committed by the defendant or of having her child taken from her, and that such fear was the basis for her allowing the defendant to have sexual intercourse with her.

In addition, the alleged victim further testified that the defendant was someone whom she had trusted and that the defendant knew that she was lonely, depressed and vulnerable, and that he had taken advantage of her knowing her “issues with men and abuse” for which he had been treating her.

The Supreme Court, in the landmark case of Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986), established that “forcible compulsion” or “threat of forcible compulsion” connotes more than the exercise of sheer physical force or violence. The Supreme Court stated that the term encompassed the act of using superior force — physical, moral, psychological or intellectual — to compel a person to do a thing against that person’s volition and/or will. The Rhodes court further explained that in determining whether the evidence is sufficient to prove that the accused engaged in sexual intercourse by forcible compulsion or by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution, a totality of the circumstances approach must be followed. The Supreme Court set forth a nonexclusive list of factors to be weighed, such factors including the following:

“[T]he respective ages of the victim and the accused, the respective mental and physical conditions of the victim and the accused, the atmosphere and physical setting in which the incident was alleged to have taken place, the extent to which the accused may have been in a position of authority, domination or custodial control over the victim, and whether the victim was under duress.” Id. at 556, 510 A.2d at 1226.

In Rhodes, the facts were that the defendant lived across the street from the 8-year-old victim. The victim had known the defendant for approximately three years. The defendant asked the victim if she wanted to go somewhere and then led her to an empty room on the second floor of an abandoned building near a playground. When the defendant began to touch her, the victim told him to “stop.” Nevertheless, the defendant proceeded to have both vaginal and anal intercourse with the child.

In finding the evidence sufficient to establish the element of forcible compulsion and threat of forcible compulsion, the court found that there is an element of forcible compulsion or threat of forcible compulsion inherent in the situation in which an adult who is with a younger, smaller, less psychologically and emotionally mature and less sophisticated child, instructs the child to submit to the performance of sexual acts. The court said that this is especially so where the child knows and trusts the adult. In such cases, the forcible compulsion or threat of forcible compulsion derives from the respective capacities of the child and the adult which are sufficient to induce the child to submit, to the wishes of the adult without the use of physical force or violence or the explicit threat of physical force or violence.

Subsequent to Rhodes, and relying upon Rhodes, the Superior Court decided the case of Commonwealth v. Dorman, 377 Pa. Super. 419, 547 A.2d 757 (1988), where appellant, a 38-year-old uncle of a 13-year-old victim, offered the child a ride to a raceway near her home. Instead of taking the child to the raceway, the defendant drove the child down a dirt road to a secluded wooded area, parked the vehicle, came over to the child’s side of the car and began touching her. The child said “don’t.” Nevertheless, the defendant continued to fondle the child and then removed her clothing as well as his own. Defendant then pushed the child back onto the seat of the car and proceeded to have sexual intercourse with her. The Dorman court applied the Rhodes test and concluded that the evidence was sufficient to prove beyond a reasonable doubt that defendant had intercourse with his 13-year-old niece by forcible compulsion and by threat of forcible compulsion. The court noted the remote locality where the incident occurred and the position of authority and trust that the defendant, as the victim’s uncle, would have over her and that the victim would thereby feel coerced to submit to the demands out of a sense of duty or obedience. The Dorman court stated that while the force used to overcome the will of the victim in this case was to a large extent subtle and psychological, it nonetheless satisfied the element of forcible compulsion necessary to sustain defendant’s conviction for rape.

In Commonwealth v. Frank, 395 Pa. Super. 412, 577 A.2d 609 (1990), the defendant was a therapist of the victim, providing counseling for the victim, who was approximately 12 or 13 years of age at the time of the incident. During the course of counseling sessions, the defendant would engage in various sexual acts, including anal intercourse, with the child. The child had been taken to the defendant for counseling. The child believed defendant had the ability to ruin his adoption if the child revealed what was occurring during the counseling sessions. The Superior Court in Frank, emphasized that the defendant occupied a position of authority over the victim, as the victim’s counselor and therapist, so that it may reasonably be inferred that the victim would feel coerced to submit to the defendant’s demands. As the court noted, the victim was fearful of again re-entering the ranks of the homeless.

A line of cases has developed that have applied the Rhodes test. Commonwealth v. Dorman, supra; Commonwealth v. Frank, supra; Commonwealth v. Ruppert, 397 Pa. Super. 132, 579 A.2d 966 (1990) (forcible compulsion found where appellant had sexual intercourse with his 9-year-old daughter despite her crying during the incidents, and he showed her sexually-explicit magazines to lower her resistance); Commonwealth v. Titus, 383 Pa. Super. 54, 556 A.2d 425 (1989) (evidence was insufficient to convict appellant of the rape of his 13-year-old daughter where the only evidence of forcible compulsion was the parent-child relationship); Commonwealth v. Ables, 404 Pa. Super. 169, 590 A.2d 334 (1991) (evidence was sufficient to convict appellant of rape where the victim was the 13-year-old niece of the appellant and a relationship of trust and confidence existed between the victim and the appellant-uncle and where the victim offered resistance).

In Commonwealth v. Rhodes, supra, the Supreme Court cautioned that “[i]t is neither desirable nor appropriate to attempt to delineate all of the possible circumstances that might tend to demonstrate that sexual intercourse was engaged in by forcible compulsion Id. at 556, 510 A.2d at 1226. Thus, the court’s conclusion in this case must ultimately rest with the factual circumstances that are unique to this case.

The court finds that in applying the Rhodes test to the testimony of the alleged victim, that evidence has been presented that the acts of sexual intercourse were procured through the exercise of forcible compulsion or threat of forcible compulsion.

At the time of the two incidents, the alleged victim was approximately 23 or 24 years of age.

The defendant had been the alleged victim’s treating psychiatrist for at least three years as of the time of the incidents. It is reasonable to infer that a 23-year-old woman would have a sense of trust and confidence with her treating psychiatrist. The victim herself testified that she submitted to him out of fear that he would have her committed or that he would have her 3-month-old child taken away from her.

The first incident occurred when the defendant came to the victim’s residence at 3 a.m. The alleged victim made it clear to defendant that she did not wish to have sexual intercourse. Besides saying “no,” she told him she was on her period to further dissuade him from engaging in intercourse with her. The evening prior thereto, when the defendant had telephoned the alleged victim, the alleged victim told him that her boyfriend would be present if he attempted to come over, thus indicating her further efforts to try to dissuade the defendant from approaching her.

Although the incident occurred in surroundings familiar to the victim, in that incidents occurred in her apartment, the victim could have hardly been expected to run from the apartment with her 3-month-old daughter. The alleged victim further testified that the defendant smelled of alcohol and that his manner was demanding and forceful.

In the second incident, the alleged victim did not let the defendant voluntarily into her home. He asked for a garbage bag and she turned and went up the steps to obtain one for him quickly so that he would not come in, but, nevertheless, the defendant followed the alleged victim up the steps and entered her bedroom immediately and undressed himself. The alleged victim testified to being scared and went into the bedroom and sat on the edge of the bed, but not with the defendant, out of submission to the authority that she believed he had over her. The victim further testified to having been lonely, depressed and vulnerable at the time of these incidents and the issues for which she had been treating with the defendant included her dealing with men and abuse.

Thus, in applying the Rhodes factors to the foregoing evidence, the alleged victim’s mental condition was that she was lonely, depressed and vulnerable while she found defendant to be forceful and demanding; the atmosphere and physical setting, alone in her apartment with a 3-month-old child, was such that the alleged victim had nowhere to go for help and was responsible for the safety of her 3-month-old daughter; the defendant was in a position of authority and dominion over the alleged victim as her treating psychiatrist and because of the alleged victim’s belief that he had the authority to commit her and to remove her 3-month-old child from her by reason of his position as her treating psychiatrist; the alleged victim’s duress is inferable from her lack of consent and her submission to defendant’s demands because of her fear and what the alleged victim believed to be the power that the defendant had over the alleged victim.

The defendant’s reliance upon Commonwealth v. Berkowitz, 537 Pa. 143, 641 A.2d 1161 (1994), is misplaced. In Berkowitz, the Supreme Court found that evidence that the victim stated “no” throughout her encounter with defendant and that defendant pushed her on the bed prior to having sexual intercourse with her was insufficient to establish “forcible compulsion” necessary to support a rape conviction. The evidence indicated that the victim was not restrained by the defendant and that she could have attempted to leave the room but did not. The victim was a female college student who had gone to the dormitory room of a friend, entered the room and found the defendant, the roommate of the victim’s friend, sleeping in a bed.

The distinguishing factor that makes Berkowitz inapplicable to this case is that there was no evidence in Berkowitz of any psychological coercion. The victim and the defendant were both college students. There was no relationship between the victim and the defendant that could be considered to be one of trust or confidence or that would suggest that the victim could reasonably believe that the defendant had power over her. There was no evidence to suggest that the victim had any reason to be fearful of the defendant.

The defendant has also placed reliance upon Commonwealth v. Mlinarich, 518 Pa. 247, 542 A.2d 1335 (1988). In Mlinarich, the court found that there was not sufficient psychological force exerted upon the victim where the defendant was an adult guardian and threatened the 14-year-old alleged victim that if she did not submit to his demands, she would be recommitted to a juvenile detention facility, a circumstance which she abhorred. As a result of this threat, the victim complied with the defendant’s sexual advances. The viability of Mlinarich is in doubt since it represents the decision of an equally-divided Supreme Court. Three justices ruled in favor of affirmance of the Superior Court’s reversal of the conviction based on lack of forcible compulsion or threat thereof and three justices ruled in favor of reversal of the Superior Court’s reversal of the defendant’s conviction. Therefore, Mlinarich has little precedential value and can hardly be said to have much persuasive value since the case of Commonwealth v. Rhodes, supra, has been the landmark case that has led to the development of a line of cases that have applied the Rhodes test.

Accordingly, for the reasons set forth in this opinion, the court will issue an order contemporaneously herewith granting the defendant’s omnibus pretrial motions relative to the charges of indecent assault and aggravated indecent assault, but denying the defendant’s motions relative to the charge of rape, both counts.

ORDER

And now, February 26, 1998, upon consideration of the defendant’s omnibus pretrial motion, in accordance with the accompanying opinion of even date herewith, it is ordered, adjudged and decreed as follows:

(1) The defendant’s motion for writ of habeas corpus to dismiss charges of rape at no. 737 of 1997 is denied.

(2) The defendant’s petition for writ of habeas corpus and dismissal of the charges of aggravated indecent assault is granted and said charges are dismissed.

(3) The defendant’s petition for writ of habeas corpus and dismissal with regard to the charges of indecent assault is granted and the charges of indecent assault are dismissed.

(4) The defendant’s motion for discovery as contained in the omnibus pretrial motion is denied, as no evidence or argument was developed on such motion and it therefore appearing that there are no present issues pending regarding discovery.