text:
    Tooch v. Lynk

      C.P. of Lawrence County,
    No. 10507 of 2012, C.A.

      Garen Fedeles, for plaintiff.

      Mick A. Turco, Jr., for defendant and intervemor.

      Louis Pomerico, for additional intervenor.
    January 2, 2014 —
   HODGE, J.,

Before the court for disposition is a petition to intervene filed on behalf of the additional intervenor, Samuel G. Hart (hereinafter, “Hart”), and a motion for contempt and motion to modify custody, filed on behalf of the defendant, Brian M. Lynk (hereinafter, “Lynk”). Prior to addressing the issues pending before the court, the court provides the following procedural and factual background of this case:

On July 22, 2010, the plaintiff, Amanda S. Tooch, (hereinafter, “mother”) filed a complaint for custody in the Beaver County Court of Common Pleas seeking primary custody of the minor child, Bray don Lynk, bom February 17, 2008. The case proceeded to trial in Beaver County, Pennsylvania, and on February 7, 2011, the Honorable Judge Kim Tesla entered a custody order granting mother primary custody of the minor child, subject to Lynk’s supervised partial custody rights.

On January 30, 2012, Donna Newsom (hereinafter, “Newsom”) filed a petition to intervene with the Beaver County Court of Common Pleas. The court granted Newsom’s petition, and Newsom subsequently filed a petition for partial custody. When Newsom filed her petition for partial custody, Lynk resided in Florida, and he had limited visitation with the minor child. Newsom asserted that she previously enjoyed a good relationship with the minor child, and she requested partial custody on that basis. Following a custody conciliation conference, a new custody order was entered granting mother primary physical custody of the minor child subject to the partial custody rights of the defendants on the second weekend of each month.

Shortly thereafter, on March 29, 2012, Hart filed a petition to intervene. In his petition, Hart asserted that he was the natural father of the minor child and that mother consented to his visiting with the minor child following a DNA test on July 14, 2011. Prior to the court ruling on Hart’s petition to intervene, Lynk filed a motion to transfer venue, which was unopposed by any of the above named parties. The Honorable Judge Deborah A. Kunselman transferred this case to the court of common pleas, Lawrence County, Pennsylvania on April 24, 2012.

Hart then filed a complaint in paternity on May 2, 2012. Defendants responded by filing preliminary objections to Hart’s paternity complaint, which were overruled by this court on July 2, 2012. Further hearings were scheduled on Hart’s petition to intervene, and the matter is presently before the court for disposition. Lynk generally relies on the doctrine of paternity by estoppel to support his argument that Hart should be precluded from intervening in the instant custody case. Lynk argue that mother consistently held him out as the minor child’s natural father for the first two years of the child’s life. Additionally, Lynk executed an acknowledgement of paternity in the corresponding domestic relations action, and consistently paid mother support for the minor child. Hart alternatively argues that as the biological father, his right to intervene is mandatory, pursuant to rule 1915.6 of the Pennsylvania Rules of Civil Procedure. Hart testified that he has actively been involved in the child’s life since he became aware of his status as the biological father.

Paternity by estoppel is a legal determination that precludes an individual from denying parentage because of a person’s conduct regardless of the individual’s biological relationship to the minor child. T.E.B. v. C.A.B. v. P.D.K., Jr., 74 A.3d 170, 173 (Pa. Super. 2013). Thus, a person cannot challenge a parental status which he or she has previously chosen to accept. Id. In this regard, the doctrine of paternity by estoppel seeks to protect the interests of the subject child by preserving the status quo established by the parties. Id. Pennsylvania case law has developed this doctrine in conformity to the public policy that “children should be secure in knowing who their parents are. If a certain person has acted as the parent and bonded with the child, the child should not be required to suffer the potentially damaging trauma that may come from being told that the father he had known all his life is not in fact his father.” Id. (quoting Fish v. Behers, 741 A.2d 721, 724 (Pa. 1999)).

However, the principles which family law doctrines were once premised upon hold a diminishing role in today’s societal values. As the familiar structure continues to erode, the common law principles, which once stood to protect it, become more theoretical and less applicable. Thus, the courts are left in the precarious position of evaluating Pennsylvania’s jurisprudence between the best interests of children and the ever changing societal norm that defines a family unit. Recognizing this fact, the Supreme Court of Pennsylvania recently considered the continuing applicability of the doctrine and held that it is the interests of the child that are paramount: “paternity by estoppel continues to pertain in Pennsylvania, but it will apply only where it can be shown, on a developed record, that it is in the best interests of the involved child.” K.E.M. v. P.C.S., 38 A.3d 798, 810 (Pa. 2012). If there is no difference in the supportive relationship available from the “psychological” and biological fathers, “that the responsibility for fatherhood should lie with the biological father.” Id.

The doctrine is typically applied in two instances: first, to preclude a man, who held a child out as his own from avoiding further support after his relationship with the mother has ended; and second, to preclude a woman, who held one man out as her child’s father, from seeking support from another man later on. T.E.B., supra, at 174. However, the doctrine of paternity by estoppel can also preclude a biological father from asserting his parental rights. See e.g.; C.T.D. v. N.E.E., 653 A.2d 28 (Pa. Super. 1995). In that case, the mother had intimate relationships with various men when the subject child was conceived. Id. at 29. Mother married one of these men (“husband”) and the two held the child out to be husband’s biological son. Subsequently, a second man, also a former intimate partner of mother’s, petitioned for blood tests and custody. Id. Mother and husband attempted to preclude her former partner from intervening via the doctrine of paternity by estoppel. Id. Upon review, the Superior Court of Pennsylvania determined that mother and husband actively misled the child as to his parentage, and because of their own deception, it was improper for either mother or husband to preclude the biological father from asserting his parental rights. Id. However, the court also held that the putative father’s own failure to act could preclude him from raising a claim of paternity. Id. at 31. The case was subsequently remanded to the trial court for a factual determination regarding whether the putative father timely asserted a parental claim relative to the subject child. Id. Along with remanding the case for further factual determinations, the Superior Court directed the trial court to analyze the doctrine of paternity by estoppel along with the statutory factors set forth at 23 Pa.C.S.A. §5328(a). Id.

Applying the appellate authority set forth above, in addition to considering each of the statutoiy factors relating to a best interest analysis, the court concludes that Hart’s request to intervene should be granted for the following reasons: At first instance, the court believes that the available case creates additional complexity to an already difficult issue. The court is called upon to exercise its equitable powers and discretion in analyzing the conduct of the parties in addition to the best interests of the minor child. This already difficult examination is only complicated by the fact that the competing individuals, Lynk and Hart, each come before the court with clean hands. In fact, the court hesitates to find fault in the conduct of either party in relation to the minor child. For years, Lynk believed that he was the minor child’s natural father. Lynk enjoyed developing a strong relationship with the child even though his relationship with mother ended.

Alternatively, Hart was not aware that he was the biological father of the minor child until two years after the child’s birth. Hart promptly initiated a paternity action in the Court of Common Pleas of Beaver County. Furthermore, mother has allowed Hart to visit with the minor child and develop a relationship with the child. The court can succinctly summarize the facts by stating that both Lynk and Hart are emotionally invested in the minor child and that the minor child has a valuable relationship with both men. The court concludes that a determination that might eliminate either father from the child’s life would be detrimental to the child and against his best interests.

Consistent with this opinion, the court will enter the following order of court:

ORDER OF COURT

And now this 2nd day of January, 2014, following a hearing on the additional intervenor’s petition to intervene; defendant’s petition for contempt; and defendant’s petition to modify custody, with the plaintiff, Amanda S. Tooch, appearing and being represented by Garen Fedeles, Esquire; the defendant and Intervenor, Brian M. Lynk and Donna Newsom, appearing and being represented by Nick Turco, Esquire; and the additional intervenor, Samuel G. Hart, appearing and being represented by Louis Pomerico, Esquire, and in consideration of the testimony and evidence presented, the court hereby orders and decrees as follows:

1. The plaintiff shall make the minor child available for genetic testing.

2. The additional intervenor, Samuel G. Hart, shall be responsible for all costs associated with the testing.

3. Following the test results, any party may motion the court for further Hearings.

4. Defendant’s petition for contempt is denied.

5. Defendant’s petition to modify custody is denied.

6. The custody order issued on November 19, 2012 is hereby reinstated and shall supersede any other order of court relating to custody entered in the instant proceedings.

7. The prothonotary shall properly serve notice of this order of court upon counsel of record for the parties and upon any unrepresented party at their last known address as contained in the court’s file.

      . Defendant Newsom is the natural mother of defendant Lynk, and she asserted standing in the above custody action as the minor child’s paternal grandmother.


source: Caselaw Access Project

author: GRAY, J.,

license: Public Domain

text:
    Commonwealth v. Braun

      C.P. of Lycoming County,
    No. CR-1187-2012

      Martin L. Wade, for Commonwealth.

      Brian Manchester, for defendant.
    January 3, 2014-
   GRAY, J.,

ORDER

And now, this 3rd day of January 2014, following oral argument on the Commonwealth’s motion in limine held on December 20, 2013, it is hereby ordered and directed that the motion is granted in part and denied in part.

Factual and Procedural Background

On May 4, 2012, the police filed a criminal complaint against Tamara Braun, then 23 years old, for offenses which allegedly occurred on April 7, 2012. Braun was charged with: 1) driving under influence of alcohol or controlled substance (third offense) under 75 Pa. C.S.A. §3802(a)(1) (a misdemeanor 2); 2) driving under influence of alcohol or controlled substance, highest rate of alcohol (third offense) under 75 Pa. C.S.A. §3802(c) (a misdemeanor 1); 3) careless driving under 75 Pa. C.S.A. §3714 ( a summary offense) and 4) driving while operating privilege is suspended or revoked under 75 Pa. C.S.A. §1543 (b) (1.1)(i) (B)(1) (a summary offense.)

Defense expert Dr. Jimmie Valentine authored an expert reported dated April 14, 2013. On November 27, 2013, the Commonwealth filed a motion in limine to preclude portions of the anticipated testimony by Dr. Valentine. A jury trial is scheduled for January 27 and 28, 2014 before Judge Richard A. Gray. This order and opinion addresses the motion and objections of the Commonwealth.

Discussion

A. Motion to Preclude Medical Testimony

The Commonwealth filed a motion to preclude Dr. Valentine from testifying that the defendant’s medical history made her an unsuitable candidate for standard filed sobriety tests. This motion is based upon two objections. First, the Commonwealth argues that Dr. Valentine has insufficient qualifications to render testimony about the defendant’s medical conditions, such as her knee or ankle injuries, because he is not a medical doctor, has no training or experience in orthopedics and therefore has no reasonable pretension to specialized knowledge in orthopedics or general medicine. Second the Commonwealth argues that Dr. Valentine cannot rely upon the defendant’s medical records or any diagnosis in those records to testify about the defendant’s medical conditions because such testimony would be based upon hearsay.

1. Insufficient Qualifications

First, the Commonwealth argues that Dr. Valentine has insufficient qualifications to render testimony about the defendant’s medical conditions. “The test to be applied when qualifying an expert witness is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight to be given to such testimony is for the trier of fact to determine.” Miller v. Brass Rail Tavern, 664 A.2d 525, 528 (Pa. 1995) (citations omitted). Here, the proffered expert, Dr. Valentine, “is a pharmacologist, toxicologist, and analytical chemist who passed the [National Highway Transportation Safety Administration (NHTSA)] NHTSA DUI Detection and Standardized Field Sobriety Course.” Defendant’s answer to Commonwealth’s motion in limine (answer), ¶7. The court agrees that the expert does not have specialized knowledge with respect to treating or diagnosing medical conditions, including orthopedics. In that respect, the court grants the Commonwealth’s motion to preclude Dr. Valentine from opining on whether the defendant suffers from a medical condition, such as a knee or ankle injury. However, since Dr. Valentine passed the NHTSA DUI Detection and Standardized Field Sobriety Course, the court finds that Dr. Valentine possesses a “reasonable pretension to specialized knowledge” with respect to DUI detection and standardized field sobriety testing. Therefore, assuming the appropriate foundation is provided, the court will allow Dr. Valentine to testify about the limitations of sobriety testing for individuals who have suffered from a knee or ankle injury or symptoms claimed by the defendant.

2. Hearsay

The Commonwealth further asserts that Dr. Valentine should be precluded from testifying about defendant’s medical conditions based upon hearsay in medical records. Pennsylvania courts have concluded that “hospital records are admissible only to show the fact of hospitalization, treatment prescribed and symptoms given.” Commonwealth v. Di Giacomo, 345 A.2d 605, 608 (Pa. 1975). A physician’s diagnosis, however, is an opinion which requires the availability of testimony by the physician, subject to cross examination. Id. Since Dr. Valentine is not a medical doctor and does not rely upon the diagnosis of others to opine as to a diagnosis of an individual, the court grants the Commonwealth’s motion to preclude Dr. Valentine from testifying that the defendant suffers from a diagnosis based upon medical records. However, testimony is permitted to the extent the testimony relies upon “treatment prescribed and symptoms given.”

Furthermore, Dr. Valentine may provide opinions within his area of expertise based upon facts or data reasonably relied upon by experts in his field. Pa. R.E. 703 permits an expert to base his opinion on facts or data reasonably relied upon by experts in the field in forming such opinions. Pa. R. E. 703 provides as follows.

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. Pa. R. E. 703

“An expert is permitted to express opinions formulated, in part, upon materials which are not in evidence, but which are customarily relied upon by experts in the particular field.” See, Primavera v. Celotex Corp., 608 A.2d 515, 518 (1992) alloc, denied 622 A.2d 1374(1993)(citation omitted). “The law permits experts to render opinions based on factual findings made by another expert.” Commonwealth v. Fletcher, 986 A.2d 759, 788 (Pa. 2009), citing, See Commonwealth v. Vandivner, 962 A.2d 1170, 1178-79 (Pa. 2009) “(holding that pathologist may offer opinions premised, in part, on information received from another coroner).”

In this case, the court found that Dr. Valentine possesses a “reasonable pretension to specialized knowledge” with respect to DUI detection and standardized field sobriety testing. Therefore, with appropriate foundation, the court will allow Dr. Valentine to testify about the suitability or limitations of sobriety testing for individuals who have suffered from a knee or ankle injury or other symptoms of the defendant. The jury shall be instructed appropriately regarding such testimony and both parties should submit proposed instructions.

B. Motion to Preclude Lay Observations by Defense Expert.

i. Misleading Testimony

The Commonwealth moves to preclude Dr. Valentine from providing his lay observations of the defendant in the DUI Center video because Dr. Valentine’s expert status may “mislead the jury into assigning unwarranted weight” to those lay observations. To the extent that Dr. Valentine offers lay testimony regarding the DUI Center video, defendant argues that the testimony is permissible in the same way that the police officer’s testimony about observations of the DUI Center video would be admissible. The court agrees that a witness may provide both expert and lay opinion testimony. Commonwealth v. Huggins, 68 A.3d 962, 967 (Pa. Super. 2013)(“the rules do not preclude a single witness from testifying, or offering opinions, in the capacity as both a lay and an expert witness on matters that may embrace the ultimate issues to be decided by the fact-finder.”) Therefore, the Commonwealth’s motion to preclude Dr. Valentine’s lay observations of the DUI Center video is denied. However, both parties may submit proposed jury instructions that explain to the jury the weight to be afforded to the testimony.

C. Miscellaneous Issues

a. Relevance — Miranda warnings

The Commonwealth moves to preclude Dr. Valentine from testifying that the Miranda warnings given to the defendant were improper. In her Answer, the defendant asserts that “Dr. Valentine is not going to testify as to the propriety of the Miranda warnings.” Answer, ¶25. Instead, the defendant “is using said statements, the physical mannerisms of defendant, here clear speech, and the context said statements were made under to show defendant was sober and there is a disconnect between the alleged test results and defendant’s physical state at the time of the blood being drawn.” Answer, ¶24. Therefore, the Commonwealth’s motion is granted in that Dr. Valentine is precluded from testifying as to the propriety of the Miranda warnings. However, with the proper foundation, Dr. Valentine may testify about his conclusions based upon the defendant’s ability to answer the police officer with respect to the Miranda warnings during the blood draw.

b. 404(b) notice

The Commonwealth moves to permit character evidence in rebuttal to anticipated testimony by Dr. Valentine. It is anticipated that Dr. Valentine will testify that the defendant did not appear intoxicated in the DUI Center video and/or that defendant did not have the demeanor or appearance of an individual with a blood alcohol count of .2. The purpose of the testimony is to cast doubt on the reliability of the blood alcohol count based upon defendant’s appearance and demeanor. Part of Dr. Valentine’s testimony is intended “to show defendant was sober” and that “there is a disconnect between the alleged test results and defendant’s physical state at the time of the blood being drawn.” Answer, ¶24. The Commonwealth argues this opens the door the admission of character evidence tending to show her propensities for consuming alcohol and her alcohol tolerance pursuant to Commonwealth v. Ford, 650 A.2d 433 (Pa. 1994). The court does not believe that the proposed testimony of Dr. Valentine opens the door to character evidence in general because the testimony does not involve the character or reputation of the defendant. That door would be open if the defense offered evidence that the defendant does not drink alcoholic beverages or only rarely drinks or similar evidence.

However, the court believes that proposed expert testimony may create a false impression that the defendant was sober because of her appearance if in fact the defendant’s appearance was related to her tolerance for alcohol. “A litigant opens the door to inadmissible evidence by presenting proof that creates a false impression refuted by the otherwise prohibited evidence.” Commonwealth of Pennsylvania v. Nypaver, 69 A.3d 708, 717-718 (Pa. Super. 2013)(concluding that the door was not opened to prior bad acts), citing, Commonwealth v. Puksar, 951 A.2d 267, 280 (Pa. 2008) and Duchess v. Langston Corp., 709 A.2d 410, 412 (Pa. Super. 1998). Since the court believes that proposed expert testimony may create a false impression from the conclusions about the appearance of the defendant in the DUI Center Video, the Commonwealth will be permitted on a limited basis with the proper foundation to introduce evidence to rebut any false impression created by the defense expert’s testimony. Accordingly, the Commonwealth’s motion to permit evidence to rebut the expert’s testimony is granted in part and denied in part.

c. Missing Test Tubes

The Commonwealth seeks to preclude testimony by Dr. Valentine that two of three test tubes of blood drawn did not arrive at the lab for testing. The Commonwealth asserts that such testimony is irrelevant and would confuse the jury. The defendant asserts that the testimony is relevant to the chain of custody or lack thereof. “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Pa.R.E. 401. Relevant evidence may be excluded “if its probative value is outweighed by a danger of... confusing the issues [or] .. misleading the jury [.]” Pa.R.E. 403. The court finds that testimony about missing test tubes is not relevant because it does not make the test results that were obtained any more or less probable. Furthermore, such testimony about missing test tubes may confuse the issues or mislead the jury. Therefore, the Commonwealth’s motion to preclude Dr. Valentine from testifying about missing test tubes is granted.

d. Preclude Expert Testimony Challenging Lab Instrumentation

The Commonwealth moves to preclude testimony challenging the validity of the lab results because the lab used in this case is a clinical laboratory approved by the Pennsylvania Department of Health and listed in the Pennsylvania Bulletin. “As a general rule, if a facility is approved by the department of health and listed in the Pennsylvania Bulletin, the trial court may take judicial notice that the facility satisfies the requirements of [75 Pa.C.S.] Section 1547[(c)]. Commonwealth v. Hilliar, 943 A.2d 984, 993 (Pa. Super. 2008). See, also, Commonwealth v. Brown, 632 A.2d 1014 (Pa. Super. 1993). As a result, the Commonwealth is not required to provide evidence to establish the test’s reliability. The defense argues, however, that the defendant is not challenging the admissibility of the blood alcohol count results but rather the weight of the evidence. The defendant asserts that it may provide evidence to rebut the inference created by the lab being approved by the department of health and listed in the Pennsylvania Bulletin. This court agrees. Therefore, the Commonwealth’s motion to preclude any expert testimony that questions the validating of the testing procedures is denied.

D. Motion to Preclude Novel Theories — Frye Challenges

The Commonwealth moved to preclude testimony regarding multiple theories by Dr. Valentine regarding the BAC testing in this case as novel theories under a Frye challenge. Specifically, the Commonwealth raised Frye challenges to testimony about ethanol formation in whole blood, test tube preservation levels, single column chromatograph, gas chromatograms and peak tailing theory. On December 23, 2013, by email, the Commonwealth withdrew all Frye-type challenges at this time. Accordingly, the Frye-type challenges are hereby withdrawn.

E. Motion to Preclude Justification Defense

The Commonwealth moved to preclude the defendant from raising a justification defense. In her Answer, briefs and at oral argument, the defense stated that it would not assert a justification defense. Accordingly, the Commonwealth’s motion is granted and the defendant is precluded from raising the justification defense at trial. No justification defense may be presented at trial, and no instruction will be given to the jury.

ORDER

For the reasons discussed above, it is ordered and directed as follows.

1. The Commonwealth’s motion to preclude testimony by Dr. Valentine that the defendant has a diagnosis of a medical condition or suffers from medical conditions is granted. However, with the proper foundation, Dr. Valentine may to testify about the limitations of sobriety testing for individuals who have suffered from a knee or ankle injury or symptoms claimed by the defendant.

2. The Commonwealth’s motion to preclude testimony by Dr. Valentine that the defendant suffers from a diagnosis based upon medical records that contain hearsay is granted. However, testimony is permitted to the extent the testimony relies upon “treatment prescribed and symptoms given.” In addition, with appropriate foundation, the court will allow Dr. Valentine to testify about the suitability or limitations of sobriety testing for individuals who have suffered from a knee or ankle injury or other symptoms of the defendant. The jury shall be instructed appropriately regarding such testimony and both parties should submit proposed instructions.

3. The Commonwealth’s motion to preclude Dr. Valentine’s lay observations of the DUI Center video is denied. However, both parties may submit proposed jury instructions that explain to the jury the weight to be afforded to the testimony.

4. The Commonwealth’s motion to preclude Dr. Valentine from testifying as to the propriety of the Miranda warnings is granted. However, with the proper foundation, Dr. Valentine may testify about his conclusions based upon the defendant’s ability to answer the police officer with respect to the Miranda warnings during the blood draw.

5. The Commonwealth’s motion to permit character evidence tending to show defendant’s propensities for consuming alcohol and her alcohol tolerance defendant’s in rebuttal to the anticipated testimony by Dr. Valentine is granted in part on a limited basis and denied in part. The Commonwealth may not introduce general evidence regarding the defendant’s drinking habits or prior bad acts. However, if the Commonwealth has expert evidence that an individual’s propensities for consuming alcohol and alcohol tolerance can create a false appearance of sobriety, such testimony may be admitted to rebut testimony by Dr. Valentine that the defendant’s demeanor and appearance was inconsistent with an individual with a blood alcohol count of .2.

6. The Commonwealth’s motion to preclude Dr. Valentines’ testimony about missing test tubes is granted.

7. The Commonwealth’s motion to preclude Dr. Valentine’s testimony challenging lab instrumentation because the lab was certified is denied.

8. The Commonwealth withdrew its Frye-type challenges at this time. Accordingly, the relevancy of the defendant’s theories and the Frye-type challenges are hereby withdrawn.

9. The Commonwealth’s motion to preclude a justification defense by the defendant is granted.

      . The defense cites Freed v. Geisinger Medical Center, 5 A.3d 212 (2010). In Freed, however, the nurse was permitted to testify as to nursing standards that went to medical causation, not a diagnosis of a patient.

      . In Commonwealth v. Ford, during the sentencing phase of trial, a defense witness testified that the defendant had been in jail before. On cross-examination, the witness provided an unresponsive answer, revealing that the witness had last lived with defendant when he was out of jail. The prosecutor followed up with a question as to how long defendant was in jail. The witness answered eight years. The Superior Court stated that the trial court did not err in allowing the testimony. It stated that “once the defense witness opened the door, it was not improper for the prosecutor to elicit the challenged response.” Commonwealth v. Ford, 650 A.2d at 442. The evidence “was designed to rebut the implication that... [the defendant] ... would be amendable to rehabilitation.” Id.


author: WILLIAMSON, J.,

text:
    Bell v. Singletary

      C.P. of Monroe County,
    No. 8026 CIVIL 2013

      Andrew J. Katsock, III, for plaintiff.

      James A. Diamond, Robert Hannen and Ellen D. Bailey, for defendants Citizens Bank.

      Paul Johnston, for defendant Delores Singletary.
    January 8, 2014 —
   WILLIAMSON, J.,

This matter comes before the court on defendant Citizens Bank of Pennsylvania’s preliminary objections to plaintiff’s complaint. Defendant contends plaintiff’s complaint is legally insufficient and lacks specificity.

This case arises out of a deed executed in favor of defendant Singletary by the decedent, Ollie Johnson, Sr., a will and codicil of Ollie Johnson, Sr., and a note and mortgage executed by Singletary after the death of the decedent. The following is a timeline of events as set forth in plaintiffs complaint:

June 3, 1998 — Ollie Johnson, Sr. (decedent) executes a Last Will and Testament leaving his entire Estate equally to his five (5) children, including defendant Singletary and the executrix bell.
December 23, 1998 — Decedent executes a deed conveying a one-half interest he had in property known as Lot 1762 section H, Pocono Farms, Coolbaugh Township, Monroe County, Pennsylvania to defendant Singletary.
January 12, 1999 — the deed is recorded.
April 1, 1999 — Decedent executed a Codicil wherein he named defendant Singletary as beneficiary of a one-half interest in the Lot 1762 Sec. H Pocono Farms property (real property) and all personal property to go equally to all of his children.
October 18, 2004 — Decedent dies.
March 16, 2007 — Defendant Singletary executes a note and mortgage in favor of defendant Citizens bank of Pennsylvania with the mortgage encumbering the Lot 1762 Sec. H. Pocono Farms property as collateral.
June 5, 2007 the mortgage is recorded.
November 4, 2011 — Plaintiff is granted letters of testamentary for the Estate of Ollie Johnson, Sr.
September 16, 2013 —Plaintiff files this suit.

Plaintiff contends in her complaint that defendant Singletary only had a one-half interest in the real property at the time she executed the note and mortgage and the estate retained the other one-half interest. Plaintiff states defendant had no authority from the estate to encumber the one-half interest ofthe estate with the mortgage to Citizens. Plaintiff alleges defendant Singletary misappropriated estate property, committed fraud, and was unjustly enriched. Plaintiff also raised claims against Citizens Bank of Pennsylvania, and a John Doe Title Insurance Company that closed on the loan. Plaintiff alleges Citizens Bank engaged in fraud and misappropriation with defendant Singletary, with regard to the note and mortgage.

Citizens has raised in their preliminary objections that the undisputed allegations of plaintiff’s complaint show Singletary was the sole owner of the real property at the time of execution of the note and mortgage, and that plaintiff failed to raise an estate within one year of the decedent’s death. Citizens argues that as a result, plaintiff’s claims are barred, and they are entitled to a demurrer.

Citizen’s preliminary objections are based upon insufficient specificity in the complaint under Pa. R.C.P. 1028 (a)(3) and legal insufficiency under Pa. R.C.P. 1028 (a)(4). In reviewing preliminary objections, the court must rely on the facts as solely derived from the complaint. BiltRite Contractors, Inc. v. The Architectural Studio, 581 Pa. 454, 866 A.2d 270 (2005). The court must accept all well-pleaded facts from the complaint, and if those facts fail to support a claim upon which relief can be granted, preliminary objections in the nature of a demurrer shall be sustained. Connor v. Archdiocese of Philadelphia, 601 Pa. 577 (2009); Sunbeam Corp. v. Liberty Mutual Ins. Co., 781 A.2d 1185 (Pa. 2001). The preliminaiy objections cannot be based on facts outside of the complaint, or they will be dismissed as a “speaking demurrer.” Martin v. Dept. of Transp., 556 A.2d 969 (Pa. Cmwlth. 1989).

A pleading is insufficiently specific if it is not sufficiently clear to enable a party to prepare a defense. See Estate of Swift v. Northeastern Hosp. of Philadelphia, 456 Pa. Super. 330, 690 A.2d 719 (1997). Defendant alleges the complaint is insufficiently specific. We find the reasons set forth by citizens for insufficient specificity are more adequately addressed in their objection for legal insufficiency.

Plaintiff claims defendant Singletary had at the time of the decedent’s death, at most, a one-half interest in common with decedent in the real property. A party who owns an interest in real estate as a tenant in common, owns a separate and distinct undivided title, in which they have the full legal authority, without the need for consent from any other tenant in common, to encumber, or even sell, that one-half interest. See In re Estate of Quick, 588 Pa. 485, 905 A.2d 471 (2006); In re Sale of Property of Dalessio, 657 A.2d 1386 (Pa. Cmwlth. 1995), citing Werner v. Quality Service Oil Co., Inc., 337 Pa. Super. 264, 486 A.2d 1009 (1984); accord, United States v. Craft, 535 U.S. 274, 122 S. Ct. 1414 (2002) (noting that even under English Common Law, it has always been the case that tenants in common may unilaterally sell, gift or encumber their shares therein). It is well settled that each tenant in common may convey, encumber or devise his or her undivided interest in real property. See Ladner Pennsylvania Real Estate Law, Section 8.03, p. 8-6 (Bisel 5th ed. 2006).

The complaint contains allegations and a deed attached as an exhibit, clearly indicating that defendant Singletary had at least a one-half interest as tenant in common with the decedent at the time of the decedent’s death. The complaint alleges that almost three years after the decedent’s death, Singletary signed the note and mortgage. Singletary clearly had at least a one-half interest that could be encumbered at that time. She had at least a one-half interest as tenant in common from the 1998 deed. Therefore, based on plaintiff’s own undisputed factual allegations, Singletary had a one-half interest that she could encumber with the mortgage. The mortgage encumbering the property, as executed by Singletary, would only have legal effect on whatever interest she had in the property, since only she executed the mortgage. See Ladner on Pennsylvania Real Estate Law, supra. This by itself is enough for plaintiff’s claims to fail to support a cause of action. The note signed by Singletary had no effect on the plaintiff. It effected Singletary only. The mortgage was only secured on Singletary’s portion of the interest, which interest, as a tenant in common, could be encumbered. Therefore, citizens could not have committed fraud nor misappropriated estate assets as a result of the transaction.

We find the language of the deed, in the absence of specific language granting a right of survivorship, granted a tenancy in common. It is well settled that unless a deed contains language that specifically delineates a joint tenancy with right of survivorship, two parties who are not married are presumed to hold title as tenants in common. See Ladner, supra. Absent specific language stating a joint tenancy with a right of survivorship, we must interpret the deed as conveying a one-half interest in common. Therefore, there was not an automatic transfer of decedent’s one-half interest at the time of his death by a right of survivorship. However, as stated above, Singletary had at least a valid one-half interest in the real property at the time she executed the mortgage and note to citizens, and therefore, she had a mortgagable interest. Under these facts as set forth by the plaintiff, there can be no claim of fraud.

The plaintiff also fails to state a claim upon which relief can be granted because the complaint establishes Singletary’s legal interest in the entire fee simple of the real estate upon the death of the decedent. The 1999 codicil, executed after the decedent executed the deed, made a specific bequest of the real property to Singletary. It stated in part:

“3. Specific Bequest of Real Property; I give one-half of my home and residence to my daughter, Delores Singletary....”

[Complaint exh. 3 (emphasis added)].

The word “give” customarily means to transfer ownership or possession without compensation. See Black’s Law Dictionary, Sixth Ed. 1990. Under Pennsylvania Probate Law, the word “give” is traditionally recognized to effect a testamentary disposition in a Will, including real property distribution. See e.g. 5 Bongiovanni Pennsylvania Transaction Guide — Legal Forms Section 73.23 (Matthew Bender 2007).

As the decedent had a one-half tenancy in common interest in the real property at the time he executed the 1999 codicil, the unambiguous intention of the codicil was to convey his remaining interest to Singletary at the time of his death. This is apparent from the documents attached to plaintiff’s complaint and the facts alleged therein. Any ambiguity would be decided by Pennsylvania’s statutory rules of will interpretation as follows:

“In the absence of a contrary intent appearing therein, wills shall be construed as to real and personal estate in accordance with the following rules:

(3) Devises of real estate

All devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or of perpetuity.”

20 Pa. C.S.A.2514

Legal title in real estate passes at the moment of death and vests in the devisee. See 20 Pa. C.S.A. 301; In re: Estate of Peterson, 649 A.2d 1007 (Pa. Cmwlth. 1994). As the decedent only had a one-half interest in the real estate at the time he executed the codicil and at his death, it is clear his intention was to transfer this remaining interest to Singletary. Plaintiff’s complaint incorporating the deed and the decedent’s codicil, without sufficient facts alleged otherwise, leads to the conclusion that Singletary obtained a full legal interest in the entire fee simple real estate at the time of the decedent’s death in 2004. Although no estate was raised prior to Singletaiy signing the note and mortgage in order to formally deed the interest to Singletary, it is clear Singletary had a full interest in the real estate as of 2007. Plaintiff may argue the codicil did not convey the remaining one-half interest to Singletary, but this is not a will contest. The complaint and the documents attached thereto, while viewing all facts as alleged by the plaintiff, lead to the conclusion that Singletary had a full interest in the real estate, and thus, plaintiff has not stated a legal cause of action.

Finally, plaintiff’s claims fail to raise a cause of action because the estate was presented for probate more than one year after the decedent’s date of death. Pennsylvania’s Probate Code states as follows:

“(c) Effect upon Grantee or Lienholder

A will offered for original or subsequent probate more than one-year after the testator’s death shall be void against a bona fide grantee or holder of a lien on real estate of the testator if the conveyance or lien is entered of record before the will is offered for probate.”

20 Pa. C.S.A. 3133(c).

Based upon statutory authority, even accepting all of the facts and supporting documents of plaintiff’s complaint as true, the deed conveying a one-half interest and the mortgage lien on the property are automatically valid. The complaint alleges both transactions were done more than one year prior to probate of the will. Therefore, plaintiff cannot now question the validity of these two transactions as it relates to any contraiy interest or instructions of the will. As it is, the codicil attached to plaintiff’s complaint leaves no doubt of a complete transfer and ownership of the real property to Singletary. However, even assuming such codicil does not convey the remaining interest, for the reasons set forth earlier, Singletary was still able to encumber her one-half interest, and the deed and mortgage cannot now be set aside even if the will has a contrary intent. From all of the facts alleged, there appears to have been a bona fide transfer to Singletary by the deed, and a bona fide lien by defendant citizens. Therefore, there can be no fraud or misappropriation by citizens under the law based upon the facts alleged by the plaintiff.

Plaintiff fails to allege any extraordinary reason justifying her delay in filing for probate. Plaintiff fails to allege any extraordinary reason why the one-half tenancy in common passing to Singletary under the codicil at time of the decedent’s death should not pass to Singletary. Plaintiff fails to allege any other reason she should receive special treatment, or to justify the delay in passing title and interest in the real property to Singletary without effect on citizen’s mortgage interest. Under the circumstances as plead, the statutory bar of 20 Pa. C.S.A. 3133 alone prevents plaintiff’s cause of action against Singletary. For these reasons, we find plaintiff’s complaint is legally insufficient and we will grant defendant Citizens Bank of Pennsylvania’s preliminary objections. As all of the facts raised by citizens were set forth in plaintiff’s complaint and the exhibits attached thereto, the demurrer must be granted. Therefore, we need not consider or address defendant’s request for a more specific pleading. As the plaintiff cannot set forth grounds upon which relief can be granted, the complaint will be dismissed.

ORDER

Andnow, this 8th day of January, 2014, uponpreliminary objections of defendant, Citizens Bank of Pennsylvania, it is ordered and decreed as follows:

The preliminaiy objection in the nature of a demurrer is sustained and plaintiff’s complaint against Citizens Bank of Pennsylvania is dismissed with prejudice.


author: NEALON, J,

text:
    Wells Fargo Bank, N.A. v. Okrah

      C.P. of Lackawanna County
    No. 12 CV 3398

      Joel Ackerman and Brion W. Kelley, for plaintiff.

      John P O Boyle, for defendant.
    January 8, 2014 —
   NEALON, J,

The lender in this mortgage foreclosure action has presented a motion seeking to remove this matter from the Court of Common Pleas of Lackawanna County Residential Mortgage Foreclosure Diversion Program on the ground that the mortgaged property does not serve as the borrower’s “primaiy residence,” as required for eligibility for the diversion program. The parties’ submissions reflect that the borrower resides at his Lackawanna County home for more than three-quarters of the year, and only resides at his Bronx, New York, apartment for eighty-one days per year as an accommodation in connection with his part-time employment as a security officer for New York Yankees’ home games at Yankee Stadium. Prior to his retirement in 2007, the borrower was employed as a municipal worker by the City of New York, and the fact that his municipal pension, credit union and tax statements indicate a Bronx apartment address does not alter the conclusion that his Lackawanna County property constitutes his “primary residence.” Accordingly, the lender’s motion seeking to remove this matter from the diversion program will be denied.

I. FACTUAL BACKGROUND

On January 11, 2007, defendant, Edward Okrah (“Okrah”), purchased a residential property located at 213 Lake Scranton Road, Scranton, from Annette Levy for the sum of $190,800.00. (Lackawanna County Recorder of Deeds Instrument Number 200701331). In connection with that purchase, Okrah executed a note with HCI Mortgage, Lake Ariel, Pennsylvania, borrowing the sum of $189,287.00, and contemporaneously delivered a mortgage in that same amount to Mortgage Electronic Registration Systems, Inc. (“MERS”), Flint, Michigan, as nominee for HCI Mortgage. (Lackawanna County Recorder of Deeds Instrument Number 200701332). At the time that Okrah purchased the Lake Scranton Road property, he was employed as a municipal worker with the City of New York, but retired from that employment on September 28, 2007. (Docket entry no. 41 at p. 68 of 70; docket entry no. 42 at p. 2).

On June 25, 2008, Okrah executed a note with Access National Mortgage, Reston, Virginia, in the principal sum of $192,126.00, and as security for payment of that debt, provided a mortgage in that amount to MERS, Ocala, Florida, as nominee for Access National Mortgage, on Okrah’s property at 213 Lake Scranton Road. (Docket entry no. 1 at ¶¶ 3-4; docket entry no. 9 at ¶¶ 3-4). Okrah’s mortgage with MERS dated June 25, 2008, indicates that the subject loan is insured by the Federal Housing Administration (“FHA”), and states that Okrah’s Note with Access National Mortgage obligates him to make monthly mortgage payments from July 1, 2008, to July 1, 2038. (Docket entry no. 1, exhibit A at pp. 1-10). On August 12, 2008, MERS filed a “mortgage satisfaction piece” confirming that Okrah’s earlier mortgage in conjunction with his HCI mortgage loan was fully paid and discharged on July 25, 2008. (Lackawanna County Recorder of Deeds Instrument Number 200820232).

To supplement his pension income, Okrah accepted part-time employment as a security officer for the New York Yankees’ home games at Yankee Stadium in Bronx, New York. (Docket entry no. 43 at ¶ 3). The New York Yankees annually host eighty-one home games at Yankee Stadium during the regular season, and on those days that Okrah works as a security officer for those home games, he stays at an apartment that he rents in Bronx, New York. (Id. at ¶¶ 3-4). During the remainder of the year, Okrah resides at his 213 Lake Scranton Road property, which is the only real estate that he owns. (Id. at ¶¶ 2, 5).

Plaintiff, Wells Fargo Bank, N.A., (“Wells Fargo”), contends that Okrah’s 2008 mortgage was later assigned by MERS to Wells Fargo pursuant to an assignment of mortgage that was recorded in the Office of the Recorder of Deeds for Lackawanna County on March 8, 2012. (Docket entry no, 1 at ¶ 5). Alleging a failure by Okrah to make his monthly mortgage payment in December 2011, and based upon the acceleration of debt provisions contained in the mortgage agreement, Wells Fargo commenced this mortgage foreclosure action against Okrah on June 4, 2012, seeking to recover the aggregate sum of $192,806.66, representing the entire principal balance of $184,391.72, accrued interest of $6,649.48, escrow advances of $1,402.05, late charges of $348.41, and inspection fees of $15.00. (Id. at ¶¶ 6, 9). In its complaint, Wells Fargo specifically averred that Okrah resides at 213 Lake Scranton Road, Scranton, and Okrah admitted that residency averment in his responsive pleading. (Docket entry no. 1 at ¶ 2; docket entry no. 9 at ¶ 2).

In 2009, the Court of Common Pleas of Lackawanna County implemented its Residential Mortgage Foreclosure eiversion program (“the diversion program”). See Pennsylvania Bulletin, Vol. 39, No. 24, p. 2929 (June 13, 2009). In all residential mortgage foreclosure actions, the lender must furnish the borrower(s) with written notice of the existence of the diversion program and the steps to be taken by the borrowers) to participate in a court-supervised conciliation conference with the lender in an attempt to settle the mortgage foreclosure litigation. See Lacka. Co. R.C.P. Nos. 205.2(b), 1034(b)-(d), 1035.2(b)-(d), 1143(a), 3129.1(c). If the borrower opts into the diversion program by submitting a written request for a conciliation conference to the Lackawanna County Court Administrator, and preparing the financial worksheet prescribed by the local rules, the court administrator is required to issue a case management order scheduling the matter for the next available conciliation conference list. See Lacka. Co. R.C.P. Nos. 1034(c)-(d), 1035.2(c)-(d), 1143(b)-(c), 1143.1(b)-(c), 3129.1(c), Forms 9, 10, 14. The mortgage foreclosure proceedings are stayed for a minimum period of sixty days or until the matter is removed from the diversion program, whichever is later. See Lacka. Co. R.C.P. Nos. 1034(b), 1035.2(b), 1143(d), 3129.1(e).

The local rules governing the diversion program clearly state that the diversion program applies only to mortgage foreclosure actions involving “a residential property which serves as the primary residence” of the borrower(s). See Lacka. Co. R.C.P. Nos. 1143(a), 3129.1(c). The written notices which must be provided to the borrower(s) by the lender likewise state that “[i]f you own and live in the residential property which is the subject of this foreclosure action, you may be able to participate in a court-supervised conciliation conference in an effort to resolve this matter with your lender.” Lacka. Co. R.C.P. Nos. 205.2(b), 1034(b), 1035.2(b), 1143(a), 3129.1(c), Forms 8, 11, 12. Similarly, the “request for conciliation conference” form that borrowers must submit to the court administrator contains an express certification by the borrower that [s]he “lives in the subject property which is [borrower’s] primary residence.” Id., Form 9 at ¶ 2.

On October 1, 2012, Okrah submitted a completed financial worksheet and filed a request for a conciliation conference, and on that same date, the court administrator issued a case management order scheduling this matter for a conciliation conference on November 30, 2012. (Docket entry nos. 10-11). At that initial conference, Wells Fargo indicated that although Okrah had previously submitted requested financial information and records, Wells Fargo needed updated financial materials in order to consider Okrah’s request for a loan modification. (Transcript of Proceedings (“T.P.”) on 11/30/12 atpp. 2-3). Therefore, an order was entered on December 4, 2012, directing Okrah to provide Wells Fargo “with a complete financial packet” within ten days, and scheduling this case for another conciliation conference on January 25, 2013. (Docket entry no. 13).

On January 10, 2013, Megan Meese of the Loss Mitigation/Mediation Department of Wells Fargo’s counsel, Zucker, Goldberg & Ackerman, LLC, provided the undersigned with a written status report from Joel Ackerman, Esquire, of the Zucker firm. (Docket entry no. 33). In that report, Wells Fargo acknowledged that Okrah had “submitted the required documents in a timely manner and as a result, [his] file was sent to an underwriter for further review on December 19, 2012.” (Id at p. 1). Wells Fargo reported that the underwriter was “now in need of’ certain additional materials, including a signed letter of explanation by Okrah verifying that the Lake Scranton Road “property is owner-occupied” since Okrah’s income, pension and savings account statements reflected his Bronx apartment address. (Id). During the ensuing conciliation conference on January 25, 2013, Wells Fargo confirmed that it had been furnished with the requested supplemental information, but stated that the underwriter needed an additional forty-five days to review those materials and make a determination concerning Okrah’s loan modification request. (T.P. 1/25/13 at p. 2). Consequently, by order dated January 25, 2013, a conciliation conference was scheduled for March 15, 2013. (Docket entry no. 15).

On March 6, 2013, Megan Meese of the Zucker firm forwarded an email to the undersigned and Okrah’s counsel requesting a continuance of the conciliation conference scheduled for March 15, 2013. Ms. Meese stated that Wells Fargo was “making this request so that [Okrah] can be decisioned based on the new FHA waterfall guidelines.” (Docket entry no. 34). Without objection by Okrah, the conciliation conference was postponed to April 19, 2013. (Docket entry no. 16).

In anticipation of that rescheduled conference, Ms. Meese forwarded a status report authored by Attorney Ackerman of the Zucker firm on April 11, 2013. In that report, Wells Fargo “stated that the documents on file have become expired and others will be expiring in the next two weeks.” (Docket entry no. 35 at p. 1). The status report identified various updated documents that Wells Fargo was “now in need of...for the review to proceed with the underwriter towards a decision.” (Id.). At the time of the conciliation conference on April 19, 2013, Wells Fargo confirmed that the additional requested items had been produced by Okrah, and Wells Fargo represented that Wells Fargo and the underwriter would need forty-five days to review the supplemental information and reach a decision regarding a loan modification for Okrah. (T.P. 4/19/13 at pp. 2-3). Thus, this matter was scheduled for another conciliation conference on June 14,2013. (Docket entry no. 20).

On May 31, 2013, Janene Rimolo of the “PA Conciliation and Loss Mitigation Department” of the Zucker firm forwarded a status report that was authored by Attorney Ackerman. (Docket entiy no. 36). Wells Fargo claimed in its report that it had “not been able to render a decision on the request for modification at this time due to lack of sufficient documents” it had requested from Okrah on May 17, 2013. (Id at p. 2). After Okrah’s counsel furnished proof that the requested materials had already been forwarded to Megan Meese of the Zucker firm, Ms. Rimolo stated that the Zucker firm would “get this straightened out ASAP” by hopefully “accessing Megan’s emails as she is no longer with the firm.” (Id at pp. 4, 6). By email dated June 5, 2013, Ms. Rimolo confirmed that the Zucker firm had, in fact, received the requested documents and were in the process of forwarding them “to the servicer for review today.” (Docket entry no. 37).

During the subsequent conciliation conference on June 14, 2013, Wells Fargo represented that the only remaining items that Wells Fargo and the underwriter needed to complete their review and make a determination were a new 4506-T form and a revised Request for Mortgage Assistance (“RMA”) form from Okrah. (T.P. 6/14/13 at p. 2). Counsel for Wells Fargo and Okrah both confirmed at that conference that Okrah had just completed the new 4506-T and RMA forms and was furnishing them to Wells Fargo on that date. (Id. at pp. 3-4). As a result, an order was issued on June 18, 2013, scheduling another conciliation conference for August 23, 2013, and directing Wells Fargo to “make a decision regarding the borrower’s request for a loan modification agreement and [to] communicate that decision to [Wells Fargo’s] counsel and [Okrah’s] housing counselor and counsel” by no later than August 9, 2013. (Docket entry no. 25).

On June 26, 2013, FeMichelle Bautista of the “PA Mediation Team” at the Zucker firm forwarded an email to the undersigned and Okrah’s counsel requesting “clarification if borrower has a [household] contributor,” and if so, to furnish various financial records pertaining to that contributor. (Docket entry no. 38). In an email communication dated July 5, 2013, FeMichelle Bautista of the Zucker firm “acknowledged receipt of financial documents” from Okrah’s counsel on June 28, 2013, and stated that those materials were “forwarded to [Wells Fargo] to continue with a loan modification review.” (Docket entry no. 39). On August 19, 2013, Attorney Ackerman of the Zucker firm submitted a status report indicating that Wells Fargo needed more information and documentation with respect to Okrah’s household contributor, his son, Kwaku Okrah. (Docket entry no. 40).

At the time of the conciliation conference on August 28, 2013, Wells Fargo confirmed that it had been provided with the supplemental information and records which had been requested relative to Okrah’s son and household contributor. (T.P. 8/28/13 at pp. 2-3). Noting the extensive history of serial requests for information and documentation by Wells Fargo and its underwriter, the undersigned expressed his firm desire “to ensure that everything that they need, not only from the borrower but also from the contributor, they now have...and that nothing will be stale by the time that we return for another, final conference.” (Id. at pp. 3-4). Therefore, an order was entered which (1) required Wells Fargo to confirm in writing by August 30, 2013, “that it has all financial records and information necessary to make a loan modification decision,” (2) directed Wells Fargo to make and communicate “a decision regarding [Okrah’s] request for a loan modification agreement” by no later than October 11, 2013, and (3) scheduled a final conciliation conference for October 25, 2013. (Docket entry no. 28).

During the final conciliation conference on October 25, 2013, Wells Fargo represented that it was denying Okrah’s request for a loan modification because his Lake Scranton Road property does not serve as his principal residence, and Okrah has “an FHA loan which requires owner-occupied status in order to be modified.” (T.R 10/25/13 at pp. 2, 4). Wells Fargo premised that conclusion upon Okrah’s pension benefit statements, tax returns and paystubs reflecting his Bronx apartment addresses. (Id. at pp. 4-5). Okrah’s counsel replied that Okrah only resides at his current Bronx apartment eighty-one days per year while working security at the New York Yankees home games, and permanently resides at the Lake Scranton Road address during the remainder of the year. (Id. at pp. 5-6, 14). Since the diversion program likewise requires the mortgaged property to serve as the borrower’s “primary residence,” Wells Fargo presented an oral motion to remove this matter from the diversion program so that the mortgage foreclosure litigation could proceed. (Id. at pp. 17-18).

On October 28, 2013, the parties were directed to submit testimonial and documentary proof of Okrah’s primary residency so that a determination could be made regarding his eligibility for the diversion program. (Docket entry no. 29). By order dated October 30, 2013, Wells Fargo was also directed to “submit to the undersigned for an in camera review the credit report that [Wells Fargo] obtained in attempting to verify [Okrah’s] occupancy of the subject property in compliance with chapter II, section 5.3 of the Making Home Affordable Program Handbook for Servicers.” (Docket entry no. 30). Wells Fargo and Okrah submitted their residency proof on a timely basis, (Docket entry nos. 41-42), and Okrah later supplemented his submissions on November 15,2013, by filing a verified “Affidavit of residence.” (Docket entry no. 43).

Wells Fargo’s residency evidence consists of Okrah’s tax returns, W-2 forms, New York City Employees’ Retirement Benefits statements, New York City Municipal Credit Unit statements, and Apple Bank savings account statement reflecting two Bronx apartment addresses for Okrah: Apt. 61, 1840 Grand Concourse, Bronx, in 2011; and Apt. 36C, 20 West Mosholu Parkway South, Bronx, in 2012. (Docket entry no. 41). In addition to his affidavit attesting that he resides in Scranton two hundred eighty-four (284) days per year and in Bronx, NY, eighty-one (81) days per year, (Docket entry no. 43), Okrah has submitted various utility bills documenting his residence as 213 Lake Scranton Road, together with proof that the only driver’s license that he possesses is a Pennsylvania driver’s license. (Docket entry no. 42). Okrah has also filed chapter 4, section B of HUD 4155.1 setting forth the definition of “principal residence” contained in FHA guidelines. (Docket entry no. 44 at p. 4-B-5). Upon the submission of those materials, Wells Fargo’s motion became ripe for disposition.

II. DISCUSSION

(A) INTRODUCTION

To be eligible to participate in the diversion program, Okrah’s property at 213 Lake Scranton Road must serve as his “primary residence.” The local rules governing the diversion program do not define the phrase “primary residence,” nor has the Court of Common Pleas of Lackawanna County had occasion to construe those words in the context of the diversion program. As a result, we must resort to well-settled rules of construction in interpreting the “primary residence” requirement for the diversion program.

Lackawanna County Rules of Civil Procedure Nos. 127 and 128 mirror Pennsylvania Rules of Civil Procedures Nos. 127 and 128 in addressing the construction of procedural rules and the application of certain presumption in ascertaining the intent of the court which adopted the rule in question. Pa.R.C.P. 127(a) and Lacka. Co. R.C.P. 127(a) both state that the primary object “of all interpretation and construction” of the statewide rules and the local rules “is to ascertain and effectuate the intention” of the entity which promulgated the rule. See Newman Development Group of Pottstown. LLC v. Genuardi’s Family Markets. Inc., 52 A.3d 1233, 1246 (Pa. 2012). Pa.R.C.P. 127(c) and Lacka. Co. R.C.P. 127(c) also provide that when the words of a rule are not clear and free from all ambiguity, the intention of the court adopting the rule may be ascertained by considering: (1) the occasion and necessity for the rule; (2) the circumstances under which it was promulgated; (3) the mischief to be remedied and the obj ect to be attained; (4) the prior practice, including other rules and statutes, upon the same or similar subjects; (5) the consequences of a particular interpretation; (6) the history of the rule; and (7) the practice followed under the rule. Pa.R.C.P. 127(c)(1)-(8); Lacka. Co. R.C.P. 127(c)(1)-(7). See also Touloumes v. E. S. C. Incorporated, 587 Pa. 287, 292-293, 899 A.2d 343, 346 (2006). Additionally, it is presumed that the court which enacted the rule did not intend a result that is absurd or unreasonable, and also aimed to favor the public interest as against any private interest. See Pa.R.C.P. 128(a), (e); Lacka. Co. R.C.P. 128(a), (e).

(B) PURPOSE AND INTENT OF DIVERSION PROGRAM

On September 8, 2010, Chief Justice Ronald D. Castille directed the president judges of county courts to consider creating mortgage foreclosure diversion programs “to effectively deal with the large numbers of foreclosure filings relating to single family residential properties, and to present a means by which these cases could be worked out by mutual agreement of the parties, when possible.” Samuel W. Milkes, “Mortgage Foreclosure Diversion Programs: An Aid to Homeowners and Lenders —A Case Management Tool for Courts,” 83 Pa.B.A.Q. 93, 94 (July 2002). The accompanying announcement issued by the administrative office of the Pennsylvania Courts stated that mortgage foreclosure mediation programs assist in “saving families’ homes and helping lenders avoid the need to foreclose and take possession of property.” Id. The mortgage foreclosure “diversion programs are intended to offer opportunities for residential, owner-occupied properties.” Id. at 95. See also C. Darnell Jones II, “The Media and a Dependent ’ Judiciary,” 48 Duq. L. Rev. 851, 853 (Fall 2010) (stating that the Residential Mortgage Foreclosure Diversion Pilot Program in Philadelphia County was established “to provide court intervention in residential, owner-occupied mortgage foreclosure cases.”).

The undersigned was charged with the task of developing, implementing and presiding over the Lackawanna County diversion program which has been in operation since 2009. In that capacity, the undersigned has previously noted that our diversion program is designed to serve the dual purpose of keeping homeowners and their families in their homes while transforming nonperforming loans into performing loans again under terms that homeowners can realistically afford. See James Haggerty, Court hopes to cut rising foreclosures, The Times-Tribune, February 28, 2009, A1; Dan Miller, Cumberland County judge wants to start foreclosure mediation program, The Patriot-News, July 28, 2011, A4. To that end, the diversion program includes the requirement that the property in question be owner-occupied and serve as the borrower’s primary residence. See Lacka. Co. R.C.P. Nos. 1143(a), 3129.1(c). The intent of that requirement is to make commercial properties, vacation homes, rental-income producing properties, and other properties that are not owner-occupied ineligible for the diversion program. See also Milkes, 83 Pa.B.A.Q. at 95.

(C) INTERPRETATION OF “PRIMARY RESIDENCE” REQUIREMENT

The phrase “primary residence” is not defined by any Pennsylvania statute, rule or case law relating to housing or mortgages. Cf. In re Residence Hearing Before Bd. of School Directors. Cumberland Valley Sch. Dist. (Thane), 560 Pa. 366, 370, 744 A.2d 1272, 1274 (2000) (noting that the Public School Code of 1949, 24 P.S. § 130.1302, uses “the term ‘resides’ rather than terms such as ‘has a primary residence’ or ‘is domiciled’ in the school district.”). But at least one Pennsylvania statute addressing primary residency in another context, and several federal regulations, indicate that the most important criterion in defining a person’s “primary residence” is where [s]he resides for the majority of the year. Section 318 of the Low-Level Radioactive Waste Disposal Act, 35 P.S. § 7130.318, provides that the operator of a low-level waste disposal facility shall pay to the host municipality “a reasonable surcharge on rates charged for waste disposed” at that facility, which is to be used, inter alia, for the “[p] ay merit of school district and municipal property taxes for individuals whose primary residence is within two miles” of that facility. 35 P.S. § 7130.318(f)(4). That provision further states that “a primary residence is the property in which the owner resides for at least nine months of each year.” Id.

Although the phrase “primary residence” is defined somewhat differently “in the code of federal regulations depending on the agency interpreting this term,...all appear to have the common theme that an individual must reside at the residence for a substantial portion of the year.” United States v. Real Property Located at 6415 North Harrison Avenue. Fresno, CA, 2011 WL 4433157, at * 3 (E.D. Cal. 2011). In connection with its Hope for Homeowners Program that has been established within the Federal Housing Administration, the Department of Housing and Urban Development (“HUD”) defines “primary residence” as meaning “the dwelling where the mortgagor maintains his or her permanent place of abode and typically spends the majority of the calendar year.” 24 C.F.R. § 257.7. Under its federal disaster assistance program, the Federal Emergency Management Agency (FEMA) has defined “primary residence” as “the dwelling where the applicant normally lives during the maj or portion of the calendar year.” 44 C.F.R. § 206. 111. See also United States v. Breland, 366 Fed. Appx. 548,549, 553, 2010 WL 610236, at * 2, 4 (5th Cir. 2010) (FEMA representative testified that the Code of Federal Regulations defines “primary residence” as “where a person resides for the majority of the year.”). Additionally, the National Park Service regulations state that a “[cjlaimant means a person who has occupied and used a cabin or other structure as a primary, permanent residence for a substantial portion of the time, and who, when absent, has the intention of returning to it as his/her primary, permanent residence.” 36C.F.R. § 13.104.

In insurance coverage litigation, other jurisdictions have likewise concluded that in determining an individual’s primary residence, “[wjhere a person spends the majority of his time is the most important factor.” State Farm Fire and Casualty Company v. Lange, 2011 WL 149482, at * 5 (S.D. Tex. 2011). In Bonich v. State Farm Mutual Automobile Insurance Company, 996 So. 2d 942 (Fla. Dist. Ct. App. 2008), the court noted that “[t] he State Farm policy provides coverage only to relatives who are residing primarily with the named insured,” and reasoned that “coverage turns on the quantity of time that the relative actually resides with the named insured.” Id at 945 (emphasis in original). The Louisiana appellate court in Hay del v. State Farm Insurance Company, 935 So. 2d 171 (La. Ct. App. 2006), writ denied, 937 So. 2d 385 (La. 2006), granted summary judgment to a father’s insurer after finding “that no genuine issue of material fact existed as to where [son] ‘primarily’ resided” since the evidence established that the son “not only resided with his mother for ‘most’ of the school year, but also that overall [son] spent about ‘70 percent’ of his time in his mother’s household.” Id at 174. Accord Jenks v. State Farm Mutual Insurance Company, 2005 WL 602560, at * 2 (Mich. Ct. App. 2005) (denying coverage to plaintiff under mother’s policy since “reasonable minds could not differ in concluding that plaintiff did not reside there ‘primarily’ when he spent the majority of his time living in his father’s house.”), app. denied, 474 Mich. 905, 705 N.W.2d 114 (Mich. 2005).

Okrah has also submitted a HUD publication which provides information to homeowners concerning FHA-insured mortgages. Chapter 4, section B of HUD 4155.1 sets forth the “Eligibility Requirements for Principal Residences,” and defines the comparable phrase “principal residence” as “a property that will be occupied by the borrower for the majority of the calendar year.” U.S. Department of Housing and Urban Development, HUD 4155.1, Mortgage Credit Analysis for Mortgage Insurance, 4.B.2.a, http://www.hud.gov/offices/adm/ hudclips/handbooks/hsgh/4155.1/41551HSGH.pdf. (filed as docket entry no. 44). A separate publication addressing eligibility for the Home Affordable Modification Program (“HAMP”) Tier 1, which also requires that “[t]he mortgage loan is secured by a single family property that is occupied by the borrower as his or her principal residence,” states that the servicer may verify such occupancy by obtaining “a credit report...to confirm whether the property securing the mortgage loan is the borrower’s principal residence.” Making Home Affordable Program Handbook for Services of Non-GSE Mortgages, 71, 104 (Sept. 16, 2013), http://www.makinghomeaffordable. gov/for-partners/understanding-guidelines/Documents/ mhahandbook 43.pdf (filed as docket entry no. 45). In the case sub judice, Wells Fargo did secure such a credit report regarding Okrah, and that credit report identifies Okrah’s principal residence address as 213 Lake Scranton Road, Scranton, PA 18505. (Docket entry no. 46).

The parties’ submissions reflect that Okrah resides at his Scranton residence for more than three-quarters of the year. The Lake Scranton Road property, which Okrah purchased seven years ago, is the only real estate that Okrah owns. Okrah does not own an apartment in New York, and instead has merely rented different apartments in the Bronx in 2011-2012 and 2012-2013. See Lange, supra, at * 5 (a relevant factor in determining a person’s “primary residence” is whether [s]he owns or simply rents the property).

The available record establishes that Okrah maintains a Bronx apartment solely for the purpose of having a place to stay for eighty-one days per year while he performs security work at Yankee Stadium. It is understandable that Okrah’s municipal pension and credit union statements indicate a Bronx apartment address since those funds were generated prior to his 2007 retirement and relocation to Scranton. Moreover, his most recent Apple Bank Savings statement reflects a balance of $7.55, which is being held in trust for his son, Kwaku Okrah, and does not warrant a finding of primary residency in New York. Finally, the credit report obtained by Wells Fargo confirmed that Okrah’s Scranton property is his principal residence. Hence, the totality of the circumstances demonstrates that Okrah’s Lake Scranton Road property functions as his principal or primary residence.

The “primary residence” requirement for our diversion program is designed to exclude commercial real estate, vacation homes, rental properties, and non-owner occupied residences from the diversion program. Court-supervised resolution of mortgage disputes involving those types of properties will not serve the diversion program’s goal of keeping homeowners and their families in their homes. Based upon the evidence submitted, Okrah’s Lake Scranton Road property constitutes his “primary residence” under the diversion program. The denial of Wells Fargo’s motion to remove this matter from the diversion program will fulfill the program’s primary purpose by seeking to keep Okrah and his son in their principal residence. Thus, Wells Fargo’s motion to remove will be denied.

The prior conciliation conferences in this case were plagued by Wells Fargo’s belated demands for supplemental financial information, Wells Fargo’s continuance requests to afford it and the underwriter additional time to review those documents, subsequent assertions by Wells Fargo that financial materials furnished by Okrah had become stale and needed to be updated, and delay occasioned by Wells Fargo’s misplacement of those records after they were provided by Okrah. During these periods of delay, interest, penalties and fees have continued to accrue, thereby hindering the parties’ ability to negotiate an affordable and mutually acceptable loan modification agreement. This cycle of demands by lenders for additional information from borrowers, lenders’ applications for continuances to review those materials, and lenders’ ensuing claims that financial records have become outdated following those postponements, is an all too common occurrence in conciliation conferences involving servicers, investors and third parties other than the original lenders who loaned money to the borrowers when they first purchased their homes.

To insure that the next conciliation conference in this matter is not another fruitless exercise, Wells Fargo will be directed to advise Okrah in writing within the next fifteen (15) days what additional or updated financial information and documents are needed to consider Okrah’s request for a loan modification. Okrah will be required to furnish those materials to Wells Fargo within thirty (30) days thereafter, and a conciliation conference will be conducted on Friday, March 28, 2014, at 10:00 AM. In addition, pursuant to Lacka. Co. R.C.P. 1143.1(e), duly authorized representatives of Wells Fargo and the underwriter must attend the conciliation conference in person with authority to negotiate a loan modification agreement. An appropriate order follows.

ORDER

And now, this 8th day of Januaiy, 2014, upon consideration of the motion of plaintiff, Wells Fargo Bank, N.A., to remove this matter from the Court of Common Pleas of Lackawanna County Residential Mortgage Foreclosure Diversion Program, and the exhibits and legal argument presented by the parties, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

1. Plaintiff’s motion to remove this case from the Court of Common Pleas of Lackawanna County Residential Mortgage Foreclosure Diversion Program is denied;

2. Within the next fifteen (15) days, plaintiff shall advise defendant as to what financial information and documents are needed in order for plaintiff and the underwriter to consider defendant’s request for loan modification;

3. Within thirty (30) days of receiving that information and documents request from plaintiff, defendant shall furnish the requested information and materials to plaintiff;

4. Another Conciliation Conference will be conducted on Friday, March 28, 2014, at 10:00 AM in the Jury Assembly Room, 1st Floor, Lackawanna County Courthouse. Pursuant to Lacka. Co. R.C.P. 1143.1(e), duly authorized representatives of plaintiff and the underwriter must attend the conciliation conference in person with authority to negotiate a loan modification agreement; and

5. By no later than March 14, 2014, counsel for the plaintiff shall provide the undersigned, opposing counsel and the assigned housing counselor with a written status report of the parties’ loan modification negotiations.

      . As per the local rules and required written notices, if the borrower is not represented by counsel, [s]he must contact and meet with a housing counselor from Neighbor Works Northeastern Pennsylvania or the United Neighborhood Centers of Northeastern Pennsylvania within a specified period of time in order to complete the financial worksheet to be furnished to the lender. See Lacka. Co. R.C.P. No. 1143.1 (b), Forms 8, 11-12. However, “[i]f the defendant/borrower is represented by counsel, the defendant/borrower need not contact and meet with one of the identified housing counselors as a condition precedent to requesting a conciliation conference, provided that counsel for the defendant/borrower completes the prescribed financial worksheet (Form No. 14), and files the Request for Conciliation Conference form within the time deadlines set forth in the applicable notice.” Id.


author: ANDERSON, J.,

text:
    Trotta v. Luckinbill

      C.P. of Lycoming County,
    No. 12-03,062

      Mark Taylor, for plaintiff.

      Gary Weber, for defendants.
    January 13, 2014 —
   ANDERSON, J.,

Before the court are cross-motions for summary judgment, filed by plaintiff on November 5, 2013, and by defendants on December 2, 2013. Argument was heard December 23, 2013.

In his amended complaint, plaintiff brings claims for (1) breach of contract, (2) monetary loss and mental anguish, (3) failure to pay certain amounts, (4) fraud and (5) lead based paint and asbestos issues. He seeks damages, treble damages and punitive damages. In their counter-claim, defendants allege (1) breach of contract, (2) unfair trade practices and (3) fraud in the inducement. All of these claims arise from a contract for alterations to be made by plaintiff to a building owned by defendants. Plaintiff claims that defendants terminated his services before the contract completion date, and defendants allege plaintiff quit without finishing the project.

In their motion for summary judgment, defendants seek to dismiss counts 2,4 and 5, as well as the claims for treble and punitive damages. In his motion, plaintiff seeks judgment in his favor. The court will address each of these issues in turn.

Count 2 alleges that certain actions of defendants caused him “mental anguish.” Specifically, plaintiff alleges that defendants failed to remove interior wall framing, ceilings and existing electrical wires, failed to perform demolition work in a timely fashion, failed to provide choices of materials in a timely fashion, failed to apply for and pay for all permits, performed work that was not in the contract, failed to pay for any extra work orders, failed to “obtain prior written request, before changing plans,” frequented the work site with their children and interrupted the work, agitated him and demanded to know the exact times for each procedure, prime painted without prior written approval and then failed to continue prime painting when appropriate, and failed to adhere to their contractual obligations, causing the extension of the completion date. All of these claims except the claim that defendants agitated him are barred by the gist of the action doctrine as they arise solely from the contract between the parties. See eToll, Inc. v. Elias/Savion Advertisng, Inc., 811 A.2d 10 (Pa. Super. 2002). And, to the extent that the claim that defendants agitated him can be interpreted as a claim for negligent infliction of emotional distress, the court finds that such a claim cannot be supported under the circumstances of this case. In Toney v. Chester County Hospital, 36 A.3d 83, 100 (Pa. 2011), the court limited such a claim to those situations “where there exists a special relationship where it is foreseeable that a breach of the relevant duty would result in emotional harm so extreme that a reasonable person should not be expected to endure the resulting distress.” The relationship between a contractor and building owner clearly does not qualify. Therefore, defendants are entitled to summary judgment on count 2.

Count 4 alleges that defendants engaged in fraud by requesting that certain procedures be eliminated from the contract so they could perform the work themselves, by purchasing certain special order materials that Plaintiff had already purchased to circumvent his efforts, and by timing the termination of the contract with their leave from employment so they could complete the construction themselves. Again, all of these contentions are barred by the gist of the action doctrine as they relate to the performance of the parties’ contractual duties. See eToll, Inc., supra. Further, none of these claims sets forth a cause of action for fraud, which requires evidence of (1) a representation, (2) which is material to the transaction at hand, (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false, (4) with the intent of misleading another into relying on it, (5) justifiable reliance on the misrepresentation, and (6) resulting injury proximately caused by the reliance. Gibbs v. Ernst, 647 A.2d 882 (Pa. 1994). Plaintiff has not alleged a misrepresentation, let alone proffered evidence of such. Therefore, defendants are entitled to summary judgment on count 4 as well.

Count 5 claims to be based on 40 C.F.R. 745, and alleges that defendants failed to take certain actions with respect to lead-based paint and asbestos on the property. Plaintiff has failed to provide any authority to support his claim, however, as the cited regulation does not apply to the commercial property involved in this case, and does not require any actions from the property owners. Instead, 40 C.F.R. 745 applies to targeted housing and child-occupied facilities, and is meant to ensure that renovators are certified and follow work practices as set forth in the regulations. Thus, defendants are also entitled to summaiy judgment on count 5.

Plaintiff’s claim for treble damages is apparently based on his allegations of fraud. Since judgment on the fraud claim is being entered in favor of defendants, they are also entitled to judgment on the claim for treble damages without further discussion.

Plaintiff’s claim for punitive damages is based on his allegation that defendants “acted in total disregard for the health and welfare of the plaintiff, workmen and general public”. See plaintiff’s amended complaint at paragraph 46. Even if this allegation is sufficient, plaintiff has failed to produce any evidence of outrageous conduct on defendants’ part, as required to support his claim. See Field v. Philadelphia Electric Company, 565 A.2d 1170 (Pa. Super. 1989)(imposition of punitive damages is appropriate only where the conduct is egregious). Therefore, defendants are entitled to summary judgment on the claim for punitive damages.

With respect to plaintiff’s motion for summary judgment, plaintiff simply sets forth his version of facts, many of which are disputed by defendants, and requests that the court enter judgment in his favor. As there are disputed issues of material fact, however, summary judgment is not appropriate. Pa.R.C.P. 1035.2.

Accordingly, the court enters the following:

ORDER

And now, this 13th day of January 2014, for the foregoing reasons, plaintiff’s motion for summary judgment is denied. Defendant’s motion for summaiy judgment is granted.

      . Only this aspect of Toney is referenced as the other three possible bases for a claim of negligent infliction of emotional distress are not applicable here (physical impact, zone of danger and at risk of immediate physical injury, or contemporaneous perception of injury to a close relative).

      . The regulation provides: “nothing in this subpart requires the owner of property(ies) subject to these standards to evaluate the property(ies) for the presence of lead-based paint hazards or take any actions to control these conditions if one or more of them is identified.” 40 C.F.R. 745.61(c).

      . The request for treble damages is not supported in the amended complaint, but plaintiff testified in his deposition that he asked for treble damages based on his allegations of fraud.

      . Of course, only those claims which are not subject to summary judgment in defendants’ favor are addressed by this statement.


author: NEALON, J.,

text:
    Commonwealth v. Dominick

      C.P. of Lackawanna County,
    No. 13 CR 2273

      Eugene M. Taler ico, Jr., William J. Fisher, and Brian J. Gallagher, for Commonwealth.

      Bernard J. Brown, for defendant.
    January 17, 2014—
   NEALON, J.,

ORDER

Defendant, who has been charged with first-degree murder and related offenses, has filed an omnibus pre-trial motion seeking, inter alia, the appointment of Bernard J. Brown, Esquire, as his counsel and Seidel Investigation & Consulting as a private investigator. (Defendant’s Omnibus Pre-Trial Motion at ¶¶6-7). Defendant contends that he is indigent and unable to honor his original fee agreement with attorney Brown or to afford a private investigator to assist in his defense. (Defendant’s brief in support at pp. 26-27). By order dated December 12, 2013, defendant was directed to file an in forma pauperis (“IFP”) petition and supporting affidavit in compliance with Pa.R.Crim.P. 123. Defendant has submitted his verified IFP filings, and following the completion of an evidentiary hearing on Januaiy 13, 2014, defendant’s motion became ripe for disposition.

Factual Background

Following defendant’s arrest on August 2, 2013, the First Assistant District Attorney of Lackawanna County forwarded a letter to the Lackawanna County Public Defender’s Office seeking “to have conflict counsel appointed to appear at the preliminary hearing on Wednesday, August 7 [, 2013]” to represent defendant. (In Forma Pauperis Petition at ¶5 and exhibit A; T.P. 1/13/14 at pp. 66-69). The Public Defender’s Office is reportedly unable to represent defendant due to its past representation of a prosecution witness in this case. (T.P. 1/13/14 atp. 68). For reasons that are not reflected in the record, the Public Defender’s Office did not arrange for conflict counsel to be appointed on behalf of defendant. {Id. at pp. 68-69). Nevertheless, defendant’s family secured $2,500.00 to retain attorney Brown to represent defendant during the preliminary hearing. {Id. at p. 69). Although defendant and his family executed a fee agreement providing for future installment payments for continued representation of defendant by attorney Brown, neither defendant nor his family has made any payments to attorney Brown. (Id. at pp. 69-70; In Forma Pauperis Petition at ¶¶8-9). In light of the existing scheduling order, attorney Brown has continued to represent defendant by filing motions, appearing at court proceedings and preparing for trial, albeit without being paid. (T.P. 1/13/14 atpp. 70-71).

Defendant’s gross earnings in 2012 totaled $9,843.00, and his net earnings for that year were $7,396.85. (In Forma Pauperis Petition at ¶ 10(A) & exhibitB). Defendant has no assets or income and owns no property or automobile, and at the time of his arrest, was relying upon his parents for food, shelter and clothing. (Id. at ¶10(B), (D), (F), (G)). He currently owes Bloomsburg University and Lackawanna College more than $17,000.00 for unpaid tuition, and also is indebted to a Bloomsburg landlord for overdue rent of $700.00. (Id. at ¶ 10(E)). In short, his liabilities far exceed his assets and income.

Appointment of Counsel

Pennsylvania Rule of Criminal Procedure No. 123 states that “[a] defendant who requests assignment of counsel in a court case shall file a signed and verified application for assignment of counsel, which shall set forth the facts showing that the defendant is without financial resources or is otherwise unable to employ counsel.” Pa.R.Crim.P. 123. The Superior Court of Pennsylvania has noted “the dearth of case law concerning IFP applications for fees and costs in the context of a criminal case,” as a result of which it has “reified] for guidance upon the well-established principles governing indigency in civil cases.” Com. v. Lepre, 18 A.3d 1225, 1226 (Pa. Super. 2011). Decisional precedent in the civil context recognizes that “[t]he trial court has considerable discretion in deciding whether a person is indigent,” Crosby Square Apartments v. Henson, 446 Pa. Super. 286, 291, 666 A.2d 737, 739 (1995), and may grant IFP status to a defendant who sufficiently demonstrates an inability to pay counsel and litigation expenses. See Lepre, 18 A.3d at 1228; Amrhein v. Amrhein, 903 A.2d 17, 19-24 (Pa. Super. 2006). Furthermore, although a defendant has the right “to choose at his own cost and expense any lawyer he may desire,” Com. v. McAleer, 561 Pa. 129, 136, 748 A.2d 670, 673 (2000), a defendant does not have an absolute right to choose his or her own counsel when that attorney is court-appointed and being employed at public expense. Com. v. Kelly, 5 A.3d 370, 378-379 (Pa. Super. 2010), app. denied, 613 Pa. 643, 32 A.3d 1276 (2011). Rather, a defendant’s right to choose a particular counsel “must be weighed against and may be reasonably restricted by the state’s interest in the swift and efficient administration of criminal justice.” McAleer, supra', Kelly, supra.

Defendant has adequately established his indigency and concomitant inability to retain counsel at his own expense. Attorney Brown has represented defendant for more than five months, and has received and reviewed thousands of pages of discovery and reports that have been produced by the Commonwealth. Defendant presumably has confidence in attorney Brown’s ability and familiarity with this case since he has specifically requested the appointment of attorney Brown as his counsel. The appointment of attorney Brown will also further the state’s interest in the swift and efficient administration of criminal justice inasmuch as it will avoid the necessity of a postponement of the scheduled trial date in order to afford a new attorney the opportunity to review discovery, file pre-trial motions and prepare for trial.

Therefore, defendant’s motion seeking the appointment of attorney Brown as his counsel will be granted. Such appointment is subject to the existing fee schedule in effect in Lackawanna County which limits fees in murder cases to $75.00 per hour for pre-trial services and $90.00 per hour for trial work, beginning with jury selection. See In re Rates for Conflict Attorneys, No. 94 CV 102, Munley, P.J. (Lacka. Co. Aug. 10, 2011). Attorney Brown’s requests for approval and payment of counsel fees shall be promptly submitted to the undersigned.

Appointment of Investigator

Defendant’s motion also seeks to appoint Seidel Investigation and Consulting as a private investigator, with the cost to be borne by the County of Lackawanna. In Pennsylvania, it is firmly established “that there is no requirement on the part of the Commonwealth to furnish investigative services at the Commonwealth’s expense.” Com. v. Strong, 522 Pa. 445, 461, 563 A.2d 479, 487 (1989), cert, denied, 494 U.S. 1060 (1990). The Supreme Court of Pennsylvania has consistently “held that a defendant does not have an absolute right to a court appointed investigator based upon Ake [v. Oklahoma, 470 U.S. 68 (1985)].” Com. v. Serge, 586 Pa. 671, 694, 896 A.2d 1170, 1184 (2006), cert. denied, 549 U.S. 920 (2006). Instead, the appointment of an investigator traditionally has been a matter vested in the discretion of the trial court. Com. v. Wholaver, 605 Pa. 325, 346, 989 A.2d 883, 895 (2010), cert. denied, 131 S. Ct. 332 (U.S. 2010); Com. v. Bardo, 551 Pa. 140, 149, 709 A.2d 871, 875 (1998), cert. denied, 525 U.S. 936 (1998).

In those instances where courts have appointed experts or investigators to assist defendants in criminal proceedings, the defendants have been declared indigent. Pennsylvania courts recognize “the right of indigent defendants to have access to the same resources as non-indigent defendants in criminal proceedings,” based upon the Commonwealth’s “affirmative duty to furnish indigent defendants the same protections accorded those financially able to obtain them.” Com. v. Curnutte, 871 A.3d 839, 842 (Pa. Super. 2005) (defendant subject to sexually violent predator hearing under Megan’s Law II has procedural due process right to court-appointed psychological expert). Absent such indigency, defendants are not entitled to court-appointed experts or investigators at the taxpayers’ expense. See Com. v. Rhodes, 54 A.3d 908, 914 (Pa. Super. 2012) (“In this case, contrary to Curnutte, the trial court found, as a matter of fact, that appellant was not indigent and, thus, denied appellant’s motion on this basis.”); Com. v. Cannon, 954 A.2d 1222, 1226 (Pa. Super. 2008) (“This case is clearly distinguishable from Curnutte because here the trial court found as a matter of fact that Cannon was not indigent and denied the motion on that basis.”), app. denied, 600 Pa. 743, 964 A.2d 893 (2009). If, however, a defendant is found to be indigent, the court has the discretion to appoint an investigator at no cost to the defendant. See Strong, 522 Pa. at 460, 563 A.2d at 487 (“The record reveals that petitioner’s limited financial resources precluded him from independently securing the services of a private investigator.”).

In response to our order of December 11, 2013, defendant submitted the required verification of his indigency and corresponding inability to privately secure the services of a private investigator. See, e.g, Cannon, 954 A.2d at 1226-1227 (identifying verified evidence necessary to support a request for court-appointed expert or investigator). Consequently, his request to have Seidel Investigation and consulting appointed as his investigator will be granted. However, defendant’s request for county funding to retain Seidel Investigation and Consulting will be initially limited to the sum of $7,500.00. Any investigative services beyond that amount must be approved in advance by the undersigned.

And now, this 21st day of January, 2014, upon consideration of defendant’s motion for appointment of counsel and a private investigator, defendant’s informa pauperis petition and accompanying verification and exhibits, and the Commonwealth’s stated lack of opposition to defendant’s motion for appointment of counsel and a private investigator (T.P. 1/13/14 at p. 18), and based upon the reasoning set forth above, it is hereby ordered and decreed that:

1. Defendant’s motion for appointment of counsel and a private investigator is granted subject to the limitations set forth in paragraphs (2) and (3) below;

2. Bernard J. Brown, Esquire, 58 8th Avenue, No. 60, Carbondale, PA 18407, is appointed as counsel to represent defendant pursuant to Pa.R. Crim.P. 123 at an hourly rate of $75.00 per hour for pre-trial services and $90.00 per hour for trial time; and

3. Seidel Investigation and consulting is appointed as defendant’s investigator, with the cost to be borne by the County of Lackawanna, up to the maximum sum of $7,500.00. Any request(s) for investigative services funding beyond that amount must be submitted to and approved in advance by the undersigned.

      . In his omnibus pre-trial motion filed on December 2, 2013, defendant also sought to sever his case from Com. v. Pal, No. 13 CR 2269 (Lacka. Co.), and requested the issuance of a writ of habeas corpus. Defendant later withdrew his motion for severance, (Transcript of Proceedings (“T.P.”) on 1/13/14 at p. 6), and by memorandum and order dated January 17, 2014, defendant’s petition for a writ of habeas corpus was denied. See Com. v. Dominick, 2014 WL 197352 (Lacka. Co. 2014).