author: TODD, Member,

text:
    In the Matter of Jonathan M. Levin

      April 15, 2011
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

TODD, Member,

Pursuant to Rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above captioned petition for reinstatement.

I. HISTORY OF PROCEEDINGS

By order of February 19, 2004, the Supreme Court of Pennsylvania suspended Jonathan M. Levin for a period of two years. On February 14,2006, Mr. Levin filed apetition for reinstatement, which was denied by the Supreme Court on November 7, 2007. On August 7,2009, petitioner filed a second petition for reinstatement. Office of Disciplinary Counsel filed a response to petition on December 8,2009 and stated its opposition to the reinstatement.

A reinstatement hearing was held onFebruary 24,2010, before a district I hearing committee comprised of chair Edward F. Shay, Esquire, and members Louis W. Schack, Esquire, and Eric W. Sitarchuk, Esquire. Respondent was represented by James C. Schwartzman, Esquire.

Following the submission of briefs by the parties, the hearing committee filed a report on June 17, 2010 and recommended that the petition for reinstatement be granted.

Office of Disciplinary Counsel filed a brief on exceptions on July 27, 2010.
Petitioner filed a brief opposing exceptions on September 3, 2010.

This matter was adjudicated by the disciplinary board at the meeting on October 11, 2010.

II. FINDINGS OF FACT

The board makes the following findings of fact:

1. Petitioner is Jonathan M. Levin. He was bom in 1953 and was admitted to practice law in the Commonwealth in 1982. His current address is 210 Locust Street, Apt. 2-G, Philadelphia Pa. 19106. He is subject to the jurisdiction of the disciplinary board of the Supreme Court of Pennsylvania.

2. By order dated February 19, 2004, effective March 20, 2004, the Supreme Court of Pennsylvania suspended petitioner from the practice of law in the Commonwealth for a period of two years.

3. Petitioner’s suspension was a result of his commingling of fiduciary funds wherein he failed to separate his funds from those of his client and third parties; and the intentional and knowing conversion of fiduciary funds wherein petitioner allowed the balance in the escrow account to fall below the amount of funds entrusted to him. Respondent violated rules of professional conduct 1.15(b) and 8.4(c).

4. On February 4, 2006, petitioner filed a petition for reinstatement, which was denied by the Supreme Court by order dated November 7, 2007.

5.On August 7,2009, petitioner filed the instant petition for reinstatement and a reinstatement questionnaire with the disciplinary board.

6. Petitioner’s reinstatement questionnaire was inaccurate in responses related to questions 6(c), 10 and 12.

7. In response to question 6(c), relating to other jurisdictions where petitioner was subject to discipline, petitioner did not list his reciprocal suspension by the Third circuit court of appeals.

8. In response to question 10, petitioner did not provide details of civil actions in which he has been involved.

9. In response to question 12, petitioner did not fully identify and describe all sources of income and amount of income in excess of $5,000 for the period of his suspension.

10. By letter dated November 13, 2009, the Office of Disciplinary Counsel requested additional information from counsel for petitioner relating to petitioner’s financial affairs.

11. By letters dated November 18,2009, and December 3, 2009, petitioner provided additional information and clarifications to his reinstatement questionnaire in response to the Office of Disciplinary Counsel.

12. There were discrepancies in the amount of income listed in petitioner’s tax returns and the income listed in petitioner’s reinstatement questionnaire. In response to question 12, petitioner stated that his 2005 income was $65,444. Petitioner later changed his answer to $66,418.47. For 2006, petitioner initially stated that his income was $54,813.13. Petitioner later advised Office of Disciplinary Counsel that the income was $64,598.52.

13. Petitioner has amended his federal tax returns to correct inaccuracies apparent to him as a result of questions from the Office of Disciplinary Counsel.

14. Petitioner admitted that he is not good with numbers but credibly testified that his errors in the questionnaire were not intentional.

15. Petitioner did not withhold information about sources for his income and provided additional information about loans from his family and a credit line from citizens bank.

16. Petitioner is not employed and relies on the credit line for income.

17. Petitioner has been a volunteer coach, photographer and assistant for a Philadelphia-based girls basketball team.

18. Petitioner has supported St. Jude’s Hospital despite the fact that he is without a main source of income.

19. Petitioner is a single parent raising a college-aged daughter.

20. Petitioner has fulfilled his continuing legal education credits for reinstatement, and he reviews advance sheets to keep apprised of the current law.

21. Jay Leffler, Esquire, a member of the Pennsylvania bar since 1988, testified credibly that he has known petitioner for more than 20 years both professionally and socially and believes that petitioner has a good reputation in the community for being truthful, honest and law abiding.

22. Purcell Booth is a drug and alcohol counselor and community volunteer who has known petitioner for more than 40 years. Petitioner and Mr. Booth volunteer in coaching two inner city athletic teams for teenagers. Mr. Booth testified credibly that petitioner has a good reputation in the community for being truthful, honest and law abiding.

23. Petitioner testified on his own behalf.

24. He takes full responsibility for his past misconduct and is genuinely remorseful.

25. If petitioner is reinstated, he intends to practice tort litigation in Philadelphia. He intends to hire an accountant to manage the bookkeeping end of his practice to ensure it will be done properly.

26. Office of Disciplinary Counsel opposes reinstatement.

III. CONCLUSIONS OF LAW

1. Petitioner has demonstrated by clear and convincing evidence that he has the moral qualifications, competency and learning in the law required for admission to the practice of law in Pennsylvania. Pa.R.D.E. 218(c)(3).

2. Petitioner has demonstrated by olear and convincing evidence that his resumption of the practice of law within the Commonwealth of Pennsylvania will neither be detrimental to the integrity and standing of the bar nor subversive of the public interest. Pa.R.D.E. 218(c)(3).

IV. DISCUSSION

Petitioner seeks readmission to the bar of the Supreme Court of Pennsylvania following his suspension for a period of two years. The suspension was imposed by order of the court dated February 19, 2004. This is petitioner’s second petition for reinstatement; his earlier petition was denied by the court on November 7, 2007.

Pursuant to Rule 218, Pa.R.D.E., petitioner carries the burden of showing by clear and convincing evidence that he possesses the moral qualifications, competency and learning in the law required for admission to practice; and that his reinstatement will not be detrimental to the integrity and standing of the bar or the administration of justice, nor subversive of the public interest. “A reinstatement proceeding is a searching inquiry into a lawyer’s present professional and moral fitness to resume the practice of law. The object of concern is not solely the transgression which gave rise to the lawyer’s suspension or disbarment, but rather the nature and extent of the rehabilitative efforts he has made since the time the sanction was imposed, and the degree of success achieved in the rehabilitative process.” Philadelphia Newspapers, Inc. v. Disciplinary Board of Supreme Court, 468 Pa. 382, 363 A.2d 779 (Pa. 1976).

In support of his reinstatement, petitioner presented the testimony of two witnesses. Attorney Jay Leffler credibly testified that petitioner is a competent and able attorney. Purcell Booth credibly testified that petitioner has donated time and energy in coaching inner city sports teams for teenagers.

Petitioner testified on his own behalf. He showed sincere remorse for his misconduct. He states that “I’ve learned my lesson many times over as a result of the passage of time and so much time to think about it.” (N.T. 112) The hearing committee found petitioner’s testimony to be genuine, that of an individual who has gained insight and understanding with the passage of time.

Office of Disciplinary Counsel opposes petitioner’s reinstatement and has focused its inquiry and objections on the accuracy of petitioner’s responses to specific questions on the reinstatement questionnaire. Review of the questionnaire demonstrates that petitioner made mistakes and misstatements in some of the answers on his questionnaire. For instance, he misstated his suspension by the third circuit in response to question 6(c). He did not provide all of the names of cases in which he had been involved in response to question 10. He did not accurately state his income in response to question 12. Petitioner made multiple efforts to correct his answers, as reflected in correspondence between his counsel and Office of Disciplinary Counsel.

Office of Disciplinary Counsel rightly questioned the discrepancies in the questionnaire and sought to obtain correct information from petitioner, which was willingly provided by petitioner. The cross-examination of petitioner by Office of Disciplinary Counsel probed every detail about which there were doubts. Petitioner was able to supply accurate information to amend the discrepancies. Nevertheless, Office of Disciplinary Counsel continues to oppose reinstatement on the basis that petitioner is not competent.

Review of the record reveals that petitioner has been a suspended lawyer in Pennsylvania since 2004. In essence, his two-year suspension has turned into a nearly seven-year absence from the practice of law. To prevent petitioner from readmission yet again based on inaccuracies on his questionnaire, which were subsequently amended, would be unfair. Petitioner was not dishonest or deceitful in his inaccuracies, nor did he lack a good faith effort to supply the correct answers to the questions. The hearing committee properly found that while petitioner struggled somewhat to provide pristinely accurate answers on his questionnaire, his competence is not in doubt. Errors and omissions on a reinstatement questionnaire are not automatic bars to reinstatement where a petitioner testifies at a hearing and fully explains the discrepancies. In re Anonymous No. 1 DB 73, Pa.D. & C. 3d 406 (1984); In the Matter of Robert S. Creem, No. 181 DB 2004 (Pa. Nov. 21, 2008).

Petitioner has complied with all obligations of his suspension. He has demonstrated his competence and learning in the law by fulfilling his continuing legal education credits and reviewing advance sheets to keep apprised of the current law. He has shown he is morally qualified by his genuine remorse and rehabilitation. Petitioner’s witnesses support his return to the practice of law. The board recommends that the petition for reinstatement be granted.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that petitioner, Jonathan M. Levin, be reinstated to the practice of law.

The board further recommends that, pursuant to rule 218(f), Pa.R.D.E., petitioner be directed to pay the necessary expenses incurred in the investigation and processing of the petition for reinstatement.

ORDER

And now, April 15, 2011, upon consideration of the report and recommendations of the disciplinary board dated January 3, 2011, the petition for reinstatement is granted.

Pursuant to Rule 218(f), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.


source: Caselaw Access Project

author: MINORA, P.J.,

license: Public Domain

text:
    Vasiluks v. Volkswagen Group of America, Inc.

      Robert Rapkin, for plaintiff.

      Robert Schatz, for defendant.
    April 28, 2011
   MINORA, P.J.,

I. INTRODUCTION

Currently before this court are the preliminary objections of the defendant, Volkswagen Group of America, Inc. (hereinafter “VW”), to count I of plaintiff’s complaint purporting to state a cause of action pursuant to the Pennsylvania Automobile Lemon Law. (73 P.S. § 1951 et. seq.)

By way of background, this matter arises out of plaintiff’s purchase of a new 2008 Volkswagen Jetta which allegedly suffered from the following defects during the first twelve (12) months and/or twelve thousand (12,000) miles: (a) faulty fuel pump which continues to run even when key is out of the ignition; (b) vehicle will not start; (c) faulty electrical system; and (d) oil leak.

Plaintiff filed a complaint on or about May 4, 2010 alleging a cause of action in count I under the Pennsylvania Automobile Lemon Law, 73 P.S. § 1951 et. seq. Plaintiff also alleged in count II a violation of the Magnuson Moss Warranty Improvement Act specifically 15 U.S.C. §2310 (d)(2) as well as a cause of action in count III under the Pennsylvania Unfair Trade Practices and Consumer Protection Act, 73 P.S. § 201-1 et. seq.

Defendant’s preliminary objections only deal with plaintiff’s claims per count I under the Pennsylvania Automobile Lemon Law, 73 P.S. § 1951 et. seq.

Defendant’s preliminary objections are two-fold. First, defendant claims that count I of plaintiff’s complaint fails to state a cause of action as per Pa. R.C.P. 1028(a)(4) in that plaintiff’s complaint fails to allege that the vehicle in question was out of service a cumulative total of thirty (30) or more calendar days within the first year or first twelve thousand (12,000) miles. See 73 P.S. § 1956 and 73 P.S. § 1958.

Second, defendant claims that plaintiff’s complaint violates Pa. R.C.P. 1028 (a)(7) in that the plaintiff failed to exercise or exhaust his statutory remedy under 73 P.S. § 1959 and 16 C.F.R Pt. 703 pertaining to an informal dispute settlement procedure before filing this action.

The parties have fully briefed both issues and the matter of defendant’s preliminary objections has been submitted on briefs and is now ripe for disposition.

II. ISSUE

A. Should defendant’s Demurrer as per Pa. R.C.P. 1028(a)(4) be granted on the basis that plaintiff has failed to allege the pre-requisites of a cause of action under the Pennsylvania Automobile Lemon Law?

B. Should defendant’s second preliminary objection under Pa. R.C.P. 1028(a)(7) be granted on the basis that plaintiff has failed to exercise or exhaust his statutory remedy under 73 P.S. § 1959 and 16 C.F.R. Pt. 703 pertaining to informal dispute settlement procedure before filing this instant action?

III. DISCUSSION

A. Defendants preliminary objection in the nature of a demurrer per Pa. R.C.P. 1028(a)(4).

In ruling on preliminary objection in the nature of a demurrer under Pa. R.C.P. 1028(a)(4) certain principles have been longstanding and we reiterate same.

A preliminary objection in the nature of a demurrer is properly granted where the contested pleading is legally insufficient. Preliminary objections in the nature of a demurrer require the court to resolve the issues solely on the basis of the pleadings and no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by the demurrer. All material facts set forth in the pleading and all inferences reasonably deducible therefrom, must be admitted as true. In determining such, we rely on the averments as well as any exhibits or documents attached to the pleading. The impetus of our inquiry is to determine the legal sufficiency of the complaint and to determine whether the pleading would permit recovery if ultimately proven. Since sustaining a preliminary objection in the nature of a demurrer will result in a denial of a claim or a dismissal of a suit, a demurrer should only be granted where the case is clear and free from doubt. Cooper v. Frankford Health Care System, Inc., 960 A.2d 1229 (Pa. Super. 2008), appeal denied 970 A.2d 431 (Pa. 2009); Lerner v. Lerner, 954 A.2d 1229 (Pa. Super. 2008); Bayada Nurses, Inc. v. Com. Dept. of Labor and Industry, 607 Pa. 527, 8 A.3d 866 (Pa. 2010); R. W. v. Manzek, 888 A.2d 740 (Pa. 2005). (Internal citations omitted).

We accept all allegations in plaintiff’s complaint to be true as per the mandates of the above authorities. We note that paragraph 20 of plaintiff’s complaint states the following which we must and do accept as true: “In addition, the above vehicle has or will be out-of-service by reason of the non-conformities complained of for a cumulative total of thirty (30) or more calendar days.”

We also note that plaintiff pled at paragraph 19 of his complaint that the vehicle had been subject to repair more than three (3) times for the non-conformities complained of and the non-conformities remained uncorrected. (See paragraph 19 of plaintiff’s complaint)

Collectively, plaintiff has pled the presumption of a reasonable number of repair attempts if:

(1) the same non-conformity has been subject to repair three (3) times by the manufacturer, its agents or authorized dealers and the non-conformity still exists; or
(2) The vehicle is out-of-service by reason of nonconformity for a cumulative total of thirty (30) or more calendar days. See 73 P.S. § 1956.

Moreover, plaintiff pled in his complaint that all documentation has not been provided by the defendant and logically could not be attached to his complaint at this time. (See paragraphs 23 and 24 of plaintiff’s complaint)

Therefore, the pleading as a whole certainly satisfies the pre-requisites necessary to sustain a cause of action under the Pennsylvania Automobile Lemon Law. 73 P.S. § 1951 et. seq. which states:

Any purchaser of a new motor vehicle who suffers any loss due to non-conformity of such vehicle as a result of the manufacturer’s failure to comply with this act may bring a civil action in a court of common pleas and, in addition to other relief, shall be entitled to recover reasonable attorney’s fees and all court costs. See 73 P.S. § 1958.

Defendant’s mere reliance on the partial document history available to plaintiff at this juncture and attached to plaintiff’s complaint is misplaced. First of all the missing documentary history is presumptively under the defendant’s possession and control. Trial will yield whether plaintiff has ultimately proven the prerequisites set forth at 73 P.S. § 1956. For now, plaintiff merely needs to plead the salient facts. We must accept the facts as pled in plaintiff’s complaint as true including the fact that defendant has in its possession further documentation which may support plaintiff’s claim.

Therefore, at this pleading stage the plaintiff has pled a cause of action in compliance with the elements of the Pennsylvania Automobile Lemon Law (73 P.S. § 1951 et. seq.) and defendants demurrer to count I of plaintiff’s complaint will be overruled and dismissed.

B. Defendant’s preliminary objection under Pa. R.C.P. 1028(a)(7) for failure of plaintiff to exercise or exhaust his statutory remedy under 73 P.S. § 1959 and 16 C.F.R. Pt. 703.

Defendant also claims that plaintiff’s complaint should be dismissed for failure to exercise or exhaust a statutory remedy per Pa. R.C.P. 1028(a)(7).

The relevant section of the Pennsylvania Automobile Lemon Law states:

If the manufacturer has established an informal dispute settlement procedure which complieswith the provisions of 16 C.F.R. Pt. 703, as from time to time amended, the provisions of section 8 (73 P.S. § 1958) shall not apply to any purchaser who has not first resorted to such procedure as it relates to a remedy for defects or conditions affecting the substantial use, value or safety of the vehicle. The informal dispute settlement procedure shall not be binding on the purchaser and, in lieu of such settlement, the purchaser may pursue a remedy under section 8. (73 P.S. § 1958) (emphasis added). 73 P.S. § 1959.

Defendant’s cursory reliance on 73 P.S. § 1959 is misplaced. In order to be applicable, the BBB auto line program (a summary of which is attached as exhibit “B” to defendant’s brie!) must comply with the provisions of 16 C.F.R. Pt. 703. (See 73 P.S. § 1959 quoted in full above) See generally Wurtz v. American Honda Motor Co., Inc., 960 F.Supp. 68 (E.D. Pa. 1997).

We agree with plaintiff that the BBB auto line program is not in compliance with the provisions of 16 C.F.R. Pt. 703. Defendant conveniently fails to address these short comings in its brief.

Under Part 703, VW’s arbitration program must be willing to award “any remedies appropriate under the circumstances including repair, replacement, refund, reimbursement for expenses, compensation for damages, and any other remedies available under the act.” See 16 C.F.R. Pt. 703.5(d)(1). (emphasis added)

Yet VW’s BBB Auto Line Program prohibits a claimant from seeking compensation for attorneys’ fees, damages for allegations of violations of other law and punitive damages. Additionally, under the Lemon Law, a consumer is entitled to attorneys’ fees, as well as treble damages under the Pennsylvania unfair trade practices and consumer protection law. See 73 P.S. § 1958 and 73 P.S. § 1961.

Since the VW’s BBB Auto Line Program does not entitle the plaintiff to all remedies he is entitled to under the Pennsylvania Lemon Law, the VW’s BBB Auto Line Program does not comply with 73 P.S. § 1958.

In our case, the VW BBB Auto Line Program omits consideration of the full range of claims and remedies such as breach of implied warranty and statutory claims created by magnuson-moss and likewise omits the award of the full range of damages available under the Pennsylvania Lemon Law and magnuson-moss including attorneys’ fees and punitive damages (i.e. treble damages).

Therefore, we agree that defendant’s reliance on this non-complaint BBB Auto Line Program is misplaced and its second preliminary objection under Pa. R.C.P. 1028(a) (7) will be overruled and dismissed.

An appropriate order follows.

ORDER

And now, April 28, 2011, upon due consideration of defendant’s preliminary objections and the able arguments of counsel and in accordance with the foregoing memorandum, it is hereby ordered and decreed that defendant’s preliminary objections under Pa. R.C.P. 1028(a)(4) and Pa. R.C.P. 1028(a)(7) are both overruled and dismissed.

Defendant is ordered to file an answer to plaintiff’s complaint on the merits within twenty (20) days of this order.

      . In a case which is analogous, persuasive although not controlling, a federal court found that VW’s BBB Auto Line Program did not qualify as an informal dispute resolution procedure under Arizona’s version of our automobile lemon law, Muller v. Winnebago Industries, Inc., 318 F.Supp.2d 844 (Dist. Ct. AZ 2004).

      . By way of dicta, we note that 73 P.S. § 1959 is not binding on the purchaser and if a settlement is not reached, the purchaser may still pursue a remedy in court under 73 P.S. § 1958. Rather than totally dismiss plaintiff’s claim, a less harsh remedy would be to stay a court action and give the parties a chance to utilize an informal settlement procedure that was complaint with 73 P.S. § 1959 with the option of pursuing their claim under 73 P.S. § 1958 if satisfactory settlement is not achieved under a fully compliant arbitration program.


author: MOTTO, P.J.,

text:
    Gula v. Golden Hill Nursing Home, Inc.

      Robert F. Daley and Elizabeth Chiappetta, for plaintiff.

      Anthony J. Williott and Patrick T. Reilly, for defendant.
    March 17, 2011
   MOTTO, P.J.,

Before the court for disposition are preliminary objections filed on behalf of the defendant Golden Hill Nursing Home, Inc. (“Golden Hill”) in response to the complaint filed on behalf of plaintiff Michael David Gula, individually and as Executor of the Estate of Michael Gula. After hearing argument on defendant’s preliminary objections, considering applicable case law, and the well argued briefs filed on behalf of the respective parties, defendant’s preliminary objections are sustained in part and denied in part for the following reasons.

According to plaintiff’s complaint, plaintiff’s father, Michael Gula (henceforth “the decedent”) was a resident at Golden Hill Nursing Home from December 2006 until his death in September of 2009. On or about August of 2009, the decedent was no longer able to consume enough food to meet his nutritional requirements, and on September 8, 2009, a percutaneous endoscopic gastrostomy (PEG) tube (a feeding tube) was inserted through his abdominal wall into his stomach. The decedent returned to Golden Hill after the procedure.

On September 11, 2009, the nursing staff at Golden Hill discovered that the decedent’s feeding tube had become dislodged and the registered nurse on duty reinserted decedent’s feeding tube. Hours after the tube was reinserted, the decedent became severely ill and was transferred to Jameson Memorial Hospital. At Jameson Hospital it was discovered that decedent’s feeding tube had been improperly inserted into decedent’s peritoneal space and not his stomach, resulting in his sudden illness. The surgeon on staff at Jameson Hospital informed plaintiff that the decedent was too weak to survive a surgery to repair the damage, and the decedent was placed on comfort measures only. After spending several days at Jameson Hospital, the decedent passed away on September 20, 2009.

On August 6, 2010, plaintiff filed a complaint that set forth two counts of general negligence. Plaintiff’s first count is for general negligence and a survival action. The second count of the complaint is for general negligence and wrongful death. Plaintiff alleges that defendant negligently failed to comply with the standard of care expected of long-term nursing facilities, and that plaintiff’s decedent’s untimely death was a direct result thereof.

On October 1, 2010, defendant filed preliminary objections, which present the following arguments:

1. Plaintiff’s complaint incorrectly sets forth causes of action for negligence per se based on violations of state and federal regulations upon which causes of action for negligence per se cannot be made.
2. Plaintiff has pleaded several paragraphs which contain scandalous and impertinent material in violation of Pa.R.C.P. 1028(a)(2).
3. Plaintiff is improperly seeking recovery of damages for the conscious pain and suffering of his decedent under a wrongful death theory.
4. Plaintiff has failed to plead numerous allegations with sufficient specificity as required by Pa.R.C.P. 1019.

When a court is presented with preliminary objections to a complaint, the court must accept all material facts averred in the complaint, as well as all reasonable inferences deducible therefrom, as true. Hess v. Fox Rothchild, LLP, 925 A.2d 798, 805 (Pa. Super. 2007); Tucker v. Philadelphia Daily News, 757 A.2d 938, 941-42 (Pa. Super. 2000). The court must further determine, as a matter of law, whether, based on the facts averred in the complaint, the plaintiff may be entitled to recovery. Wiernik v. PHH U.S. Mortgage Corp., 736 A.2d 616 (Pa. Super. 1999). Preliminaiy objections should only be sustained when the court determines with certainty that, upon the facts averred, the law will not permit the recovery sought by the plaintiff. R.W. v. Manzek, 585 Pa. 335, 351, 888 A.2d 740, 749 (Pa. 2005); Bourke v. Kazare, 748 A.2d 642, 643 (Pa. Super. 2000).

I. DEMURRER TO CAUSE OF ACTION FOR NEGLIGENCE PER SE

Defendant’s first preliminary objection is raised in the form of demurrer to the negligence per se claims defendant contends are set forth in the complaint. Defendant believes that counts I and II of the complaint, actions for negligence/ survival and negligence/wrongful death respectively, are actually improperly pled claims of negligence per se. Plaintiff, in his brief in response to preliminary objections, avers that the state and federal regulations cited in counts I and II were included not for the purposes of claiming negligence per se, but instead to demonstrate what the general standard of care for a nursing facility should have been and for the purpose of bolstering his claim of general negligence.

Based on plaintiff’s own concession and a review of applicable Pennsylvania case law, the court sustains defendant’s objections to counts I and II in so far as the regulations referenced by plaintiff cannot assert claims for negligence per se. Plaintiff may, however, include the state and federal regulations in his claims of general negligence for the purpose of demonstrating the standard of care expected of long-term nursing facilities.

In Pennsylvania, negligence per se is defined as “conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances.” Wagner v. Anzon, Inc., 684 A.2d 570, 574 (Pa. Super., 1996), citing White by Stevens v. Southeastern Pa. Transp., 518 A.2d 810, 815 (Pa. Super. 1986). The violation of a statute or an ordinance may suffice as the basis of a cause of action for negligence per se, however, the purpose of the statute or ordinance must be to secure or protect the interests or rights of a particular group. Id.

To sustain a claim of negligence per se, the following four requirements must be met:

(1) The purpose of the statute must be, at least in part, to protect the interest of a group of individuals, as opposed to the public generally;
(2) The statute or regulation must clearly apply to the conduct of the defendant;
(3) The defendant must violate the statute or regulation;
(4) The violation of the statute or regulation must be the proximate cause of the plaintiff’s injuries. See Wagner at 574; Kaplan v. Philadelphia Transp. Co., 171 A.2d 166 (1961); Cecile Industries Inc. v. U.S., 793 F.2d 97 (3rd cir. 1986).

Defendant’s demurrer to counts I and II is based on the first requirement, that the statute must, at least in part, protect the interest of a group of individuals instead of the general public. Defendant avers that the Pennsylvania Health Care Facilities Act (PHCFA) found at 28 Pa. Code § 201 and 211, et seq., and the Omni Budget Reconciliation Act of 1987 (OBRA) found at 42 C.F.R. § 482, et seq., are intended to protect the interests of the general public and not the interests of a particular group of individuals.

When the purpose of a statute upon which a cause of action for negligence per se is based is called into question, the Supreme Court of Pennsylvania has relied upon the Restatement (Second) of Torts § 286 to set forth a standard from which to judge the purpose of the statute in question. Wagner, 684 A.2d at 574, citing Congini by Congini v. Portersville Valve Co., 470 A.2d 515, 517-518 (1983). According to the Restatement, the purpose of the asserted statute must be (a) to protect a class of persons which includes the one whose interest is invaded; and (b) to protect the particular interest which is invaded; and (c) to protect that interest against the kind of harm which has resulted; and finally (d) to protect that interest against the particular hazard from which harm results. Restatement (Second) of Torts § 286 (1965).

When tasked to examine PHCFA and OBRA in light of the two above mentioned standards, Pennsylvania courts have found that generally the statutes cannot be used as a basis for negligence per se claims. See Goda v. White Cliff Leasing Partnership, 62 Pa. D. & C. 4th 476, 485 (Pa. Com. Pl. 2003), and Frantz v. HCR Manor Care Inc., 64 Pa. D. & C. 4th 457, 468 (Pa. Com. Pl. 2003). In Goda v. White Cliff Leasing Partnership, the court had to determine whether the provisions of OBRA and PHCFA could form the basis of an action for negligence per se. Applying the principles found in the Restatement, the court found that OBRA satisfied the first two elements of § 286. Goda at 483-484. The regulations found in OBRA were promulgated to protect the interests of nursing home residents living in a facility participating in the Medicaid program, and were designed to protect the health and welfare of the residents, satisfying the first two elements of § 286. Id.

Next, the court determined if the provisions relied upon by the plaintiff satisfied the final two elements of § 286. The plaintiff alleged violations of multiple provisions of OBRA in his amended complaint, and the court found that of all the numerous provisions cited by plaintiff, only 42 C.F.R. § 483.250, which provides, “the facility must provide each resident with sufficient fluid intake to maintain proper hydration and health,” satisfied the final two elements of § 286. Id. at 485. The court held that the other cited provisions of OBRA set forth long-term goals that a nursing home should strive to attain and could not be used to support a cause of action for negligence per se. Id

The court then turned to the question of whether the provisions of PHCFA could support a cause of action for negligence per se. Examining the purposes of PHCFA as set forth in 35 P. S. § 448.102, the court determined that the intent of PHCFA was to have the Department of Health implement a system to enhance the delivery of health care services for purposes of improving public health. Goda at 487. The court held that PHCFA does not apply to any particular group of individuals, instead it is intended to benefit the general public, thus it cannot satisfy the first element of § 286 and cannot support a cause of action for negligence per se. Id.

In Frantz v. HCR Manor Care Inc., 64 Pa. D. & C. 4th 457, the court was asked to determine if the provisions of OBRA and PHCFA could support a cause of action for negligence per se. Relying on the opinion in Goda v. White Cliff Nursing Home, the court held that the provisions of OBRA relied upon by the plaintiff, excluding 45 C.F.R. 483.25(j), could not support a cause of action for negligence per se. Frantz at 468-469. The court held that the provisions of OBRA establish a set of goals that long-term care facilities should strive to attain rather than exact standards of care, with the one notable exception being 45 C.F.R. 483.25(j). Id.

The court then examined PHCFA and held that the intent of the statute was to enhance the delivery of health care services to promote general public health. Id. at 468. Because PHCFA was not intended to protect the rights of a particular class, a cause of action for negligence per se could not be founded upon it. Id. The court sustained the defendant’s demurrer to plaintiff’s use of the provisions found in OBRA and PHCFA as negligence per se, except for 42 C.F.R. 483.25(j). Id. at 469. The court held further that although OBRA and PHCFA could not, for the most part, support a cause of action for negligence per se, the plaintiff could rely on the provisions set forth in the regulations when making a claim of general negligence for the purpose of showing that the defendant failed to conform with the standard of conduct that would be expected of a nursing home for the protection of its residents against unreasonable risks. Id.

Based on the foregoing analysis of case law, an examination of the OBRA regulations plaintiff alleges have been violated, and plaintiff’s own concession that he has not set forth causes of action for negligence per se, the court sustains defendant Golden Hill Nursing Home’s demurrer in so far as the alleged violations of OBRA and PHCFA do not support a cause of action for negligence per se. Plaintiff may, however, use the averments of violations of the various provisions of OBRA and PHCFA for the sole purpose of sustaining his general negligence claims.

II. INCLUSION OF SCANDALOUS AND IMPERTINENT MATTER IN VIOLATION OF PA.R.C.P. 1028(A)(2)

Defendant’s next objection to the complaint is for the inclusion of scandalous or impertinent matter pursuant to Pa.R.C.P. 1028(a)(2). For averments to be considered scandalous or impertinent, the allegations must be immaterial and inappropriate to the proof of the cause of action. Common Cause/Pennsylvania v. Commonwealth, 710 A.2d 108, 115 (Pa. Cmwlth. 1998). An averment will be considered impertinent when it is irrelevant to any material issue made or tendered. Schwingen v. Piekarski, 13 Pa. D.&C. 2d 617, 618 (Pa. Com. Pl. 1957). An averment will be considered scandalous when it is an:

Unnecessary allegation which bears cruelly on the moral character of an individual or states anything which is contrary to good manners, or anything which it is unbecoming to the dignity of the court to hear, or which charges some person with a crime, not necessary to be shown in the cause. Schwingen at 618.

Plaintiff’s averments thus will be found impertinent or scandalous if they are irrelevant to the material issue or are unnecessary allegations that bear negatively on the character of the defendant. Id. Defendant avers that Paragraphs 16, 19, 34, 40, and 41 of the complaint must be stricken for the inclusion of scandalous or impertinent material. The court will examine each paragraph in turn.

Paragraph 16 of the complaint alleges that: “At no time was Mr. Gula’s son, Michael David Gula, notified of the decreased oral intake.” Defendant believes that any lack of notification given to the decedent’s son regarding the decedent’s decreased oral intake has no relevancy to the claim that defendant negligently replaced plaintiff’s decedent’s feeding tube. The court finds that Paragraph 16 is relevant to the general negligence claim plaintiff has filed against defendant for the purpose of providing context for what the general standard of care was at Golden Hill around the time of the incident involving plaintiff’s decedent. The court does not find this paragraph to be immaterial nor that it is an unnecessary allegation included to cast defendant in a negative light. Therefore, Paragraph 16 is material to the claim and does not contain scandalous or impertinent information. Defendant’s objection is dismissed.

Paragraph 19 of the complaint alleges that: “while at Jameson Hospital on September 8,2009, Mr. Gula arrived malnourished and dehydrated.” Defendant believes that this paragraph is scandalous and impertinent and bears no relevancy on plaintiff’s claim that defendant negligently replaced plaintiff’s decedent’s feeding tube. The court finds that Paragraph 19 is relevant to the general negligence claim filed by plaintiff for the purpose of providing context as to the general standard of care present at Golden Hill at the time of the incident involving plaintiff’s decedent. This paragraph is not immaterial to the claim asserted and is not an unnecessary allegation included for the purpose of casting defendant in a negative light. Therefore, Paragraph 19 of the complaint is material and defendant’s objection is dismissed.

Defendant next challenges Paragraph 34 of the complaint prior to argument on the preliminary objections, the parties came to an agreement to strike Paragraph 34 from the complaint. Therefore, Paragraph 34 is stricken from the complaint as per the agreement of the parties as noted in the brief in opposition to the preliminary objections filed by plaintiff prior to argument.

Defendant next challenges Paragraph 40 of the complaint. Paragraph 40 states that: “The death certificate reflects peritonitis as a cause of death.” Defendant argues that this paragraph is scandalous and impertinent because the death certificate does not state that peritonitis was the cause of death. At argument, plaintiff requested leave to amend Paragraph 40 to accurately reflect the cause of death found therein. The court sustains defendant’s objection and strikes Paragraph 40 from the complaint, but grants leave to plaintiff to amend said paragraph to accurately reflect the cause of death.

The last paragraph defendant challenges for containing scandalous and impertinent information is Paragraph 41. Paragraph 41 sets forth the details of an investigation the Pennsylvania Department of Health conducted into defendant Golden Hill Nursing Home after the incident involving plaintiff’s decedent. The court finds that plaintiff pleaded evidence in Paragraph 41, and not facts upon which the complaint is based. Such a pleading is inappropriate. Defendant’s objection is sustained and Paragraph 41 is stricken from the complaint.

III. PAIN AND SUFFERING DAMAGES IN WRONGFUL DEATH ACTION

Defendant’s next objection to the complaint is a motion to strike Paragraph 52. Defendant contends that in the wrongful death action found in count II, the plaintiff is seeking damages for the conscious pain and suffering plaintiff’s decedent experienced as a result of the negligent replacement of his PEG tube. Defendant asserts that the Wrongful Death Statute, 42 Pa.C.S.A. § 8301, does not allow recovery for the conscious pain and suffering of the decedent. Defendant is correct in its assertion. 42 Pa.C.S.A. § 8301 provides that:

(a) General Rule-An action may be brought...to recover damages for the death of an individual caused by the...negligence of another if no recovery for the same damages claimed in the wrongful death action was obtained by the injured individual during his lifetime and any prior actions for the same injuries are consolidated with the wrongful death claim so as to avoid a duplicate recovery.
(c) Special Damages-In an action brought under subsection (a), the plaintiff shall be entitled to recover, in addition to other damages, damages for reasonable hospital, nursing, medical, funeral expenses and expenses of administration necessitated by reason of injuries causing death. 42 Pa.C.S.A. § 8301

A plain reading of the wrongful death statute reveals that damages for conscious pain and suffering of the decedent were not included by the legislature as recoverable damages in a wrongful death action. The court now turns to an examination of case law on the matter.

When Pennsylvania courts have examined the issue of recovery of damages for conscious pain and suffering in a wrongful death action, they have held that such damages are not recoverable. Heffner v. Allstate Insurance Company, 401 A.2d 1160, 1164 (Pa. Super. 1979); and Slaseman v. Myers, 455 A.2d 1213, 1218 (Pa. Super. 1983). Damages that are recoverable for wrongful death are the value of the decedent’s life to the family, as well as expenses caused to the family by reason of the death. Slaseman at 1218. Damages are intended to compensate the decedent’s survivors for the pecuniary losses they have sustained as a result of the decedent’s death. Id. As such, damages for conscious pain and suffering are not recoverable in a wrongful death action. Heffner at 1164. Based on a plain reading of the statutory text and an examination of relevant case law, the court sustains defendant’s objection and strikes Paragraph 52 from the complaint.

IV. LACK OF SUFFICIENT SPECIFICITY AS REQUIRED BY PA.R.C.P. 1019

Defendant’s final objection to the complaint comes in the form of Connor objections to numerous allegations defendant believes were not plead with the specificity required by Pa.R.C.P. 1019. Defendant avers that numerous subparagraphs of Paragraph 47 were not plead with sufficient specificity to provide defendant with notice of what the claims asserted against it are. The specificity of a pleading is governed by Pa.R.C.P. 1019(a) which states that: “The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pennsylvania is a fact-pleading jurisdiction, which requires the plaintiff to provide the defendant with notice of what the plaintiff’s claim is and the grounds for the claim. United Sportsmen of Pennsylvania v. Pennsylvania Game Commission, 950 A.2d 1120, 1134 (Pa. Cmwlth. 2008).

Additionally, the rule requires that the plaintiff plead all the facts that must be proven in order to achieve recovery on the alleged cause of action, and that the pleading be sufficiently specific so the defending party will know how to prepare a defense. Commonwealth ex rel. Pappert v. TAP Pharmaceuticals Products, Inc., 868 A/2d 624, 635 (Pa. Cmwlth. 2005). In determining whether a particular paragraph is stated with the necessary specificity, the Superior Court has held that “such paragraph must be read in context with all the allegations in the complaint.” Yacoub v. Lehigh Valley Medical Associates, 805 A.2d 579 (Pa. Super. 2002).

Defendant avers that Paragraphs 47 (a), (b), (c), (d), (e), (l), (m), (n), (t), (u), and (v) have not been plead with the specificity required by Pa.R.C.P. 1019(a) and must be stricken in accordance with the holding of Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983). The court will examine each paragraph to determine whether the paragraphs have been plead with sufficient specificity when viewed in the context of all of the allegations found in the complaint.

Defendant first challenges Paragraphs 47 (a)-(d). These four paragraphs deal with allegations of inadequate staffing at defendant’s facility. Paragraph 47(a) avers that defendant was negligent: “By failing to provide sufficient staff to provide the care, treatment, and services Michael Gula required.” Paragraph 47(b) avers that the defendant was negligent: “By failing to hire appropriately trained staff.” Paragraph 47(c) avers that defendant was negligent: “By failing to appropriately train the staff that was hired and/or retained.” Paragraph 47(d) avers that defendant was negligent: “By allowing and/or encouraging unskilled and untrained individuals to care for Michael Gula.” After reviewing the four paragraphs in light of the allegations made in the complaint, the court holds that these allegations lack sufficient specificity. Defendant’s objections to Paragraphs 47(a)-(d) are sustained.

Defendant’s next challenge is to Paragraph 47(e). Based on the record, the court believes that defendant had intended to challenge Paragraph 47(w), but mistakenly challenged Paragraph 47(e). For that reason the court will address both paragraphs. In defendant’s brief, Paragraph 47(e) is misquoted as stating: “In failing to ensure that the staff was provided with sufficient supervision regarding the care provided to Michael Gula.” This is actually Paragraph 47(w) of the complaint. Paragraph 47(e) reads that defendant was negligent: “By failing to adequately monitor Michael Gula immediately following the dislodgment of his PEG tube.” The court finds that, when read in context of all the allegations in the complaint, Paragraph 47(e) has been pled with sufficient specificity to let defendant know what the claim against it will be. Paragraph 47(w), however, has not been plead with sufficient specificity. Defendant’s objection to Paragraph 47(e) is dismissed. Defendant’s objection to paragraph 47(w) is sustained.

Paragraph 47(1) reads that defendant was negligent: “By failing to provide the care, treatment and services Michael Gula required.” Reviewing this paragraph in light of all the allegations made in the complaint, the court finds that Paragraph 47(1) is not sufficiently specific enough to satisfy Pa.R.C.P. 1019(a). Paragraph 47(m) reads that defendant was negligent: “By failing to provide sufficient staff to provide the care, treatment, and services Michael Gula required.” This paragraph is identical to Paragraph 47(a), and therefore lacks sufficient specificity. Defendant’s objections to Paragraphs 47 (1) and (m) are sustained.

Paragraph 47(n) provides that defendant was negligent: “By failing to develop and implement a Resident Care Plan that was effective in preventing Michael Gula’s peritonitis.” Reviewing this paragraph in light of all of the allegations made in the complaint, the court finds that Paragraph 47(n) has been plead with sufficient specificity to alert defendant to the claim asserted against it. plaintiff asserts that defendant failed to develop or implement a plan that would have prevented decedent’s peritonitis. Defendant’s objection to Paragraph 47(n) is dismissed.

Paragraph 47(t) provides that defendant was negligent: “In failing to ensure that there were sufficient members of adequately trained staff to meet the needs of Michael Gula.” When reviewed in light of all the allegations made in the complaint, the court finds that this paragraph has not been plead with sufficient specificity to alert defendant as to the claim asserted against it. Defendant’s objection to Paragraph 47(t) is sustained.

Paragraph 47(u) provides that defendant was negligent: “In failing to ensure that Michael Gula was protected from serious bodily injury and harm.” The court finds that this paragraph has not been plead with sufficient specificity to alert defendant as to what the claim asserted is. Defendant’s objection to Paragraph 47(u) is sustained.

Defendant’s final challenge is to Paragraph 47(v). Paragraph 47(v) provides that defendant was negligent: “In failing to ensure that effective policies and procedures were developed and/or implemented.” The matter of what policies and procedures defendant had in place to care for the decedent are issues that will be explored during the discovery process. Pennsylvania case law states that, “a more specific complaint will not be required where the details requested are evidentiary in nature.” Hock v. L.B. Smith, Inc., 69 Pa. D. & C. 2d 420, 423 (Pa. Com. Pl. 1974) (internal citations omitted). Paragraph 47(v) is a paragraph wherein the details are evidentiary in nature. Because the details of Paragraph 47(v) will be resolved during the discovery phase of this proceeding, Paragraph 47(v) does not lack sufficient specificity. Paragraph 47(v), therefore, is sufficient to alert the defendant as to what the claim against it will be. Defendant’s objection to Paragraph 47(v) is dismissed.

Defendant’s Connor objections are sustained as to Paragraphs 47 (a), (b), (c), (d), (1), (m), (t), (u), and (w). These paragraphs are therefore stricken from the complaint. However, the court finds that plaintiff’s pleadings were not so insufficient that plaintiff should not be awarded an opportunity to amend his pleadings. Each of the challenged paragraphs came close to satisfying the specificity threshold, and for that reason the court grants plaintiff leave to amend the above challenged paragraphs, in order to conform to the specificity requirement found in Pa.R.C.P. 1019(a).

V. CONCLUSION

For the reasons set forth in this opinion, the court sustains defendant’s preliminary objections in part, and dismisses the preliminary objections in part. Defendant’s first preliminary objection in the form of demurrer to the negligence per se causes of action is sustained in so far as the cited regulations cannot form the basis for a cause of action for negligence per se. Plaintiff may, however, utilize the regulations to demonstrate the applicable standard of care when making his general negligence claims. Defendant’s second preliminary objection based upon the inclusion of impertinent and scandalous materials are sustained to Paragraphs 34, 40, and 41, and said paragraphs are stricken, with leave to amend Paragraph 40. Defendant’s objections are dismissed as to Paragraphs 16 and 19. Defendant’s third preliminary objection to the inclusion of conscious pain and suffering in an action for wrongful death is sustained and Paragraph 52 stricken from the complaint. Defendant’s fourth preliminary objection is sustained in part and Paragraphs 47(a)-(d), (1), (m), (t), and (u) are stricken, but plaintiff is granted leave to amend said paragraphs to conform with Pa.R.C.P. 1019. Defendant’s objection to Paragraphs 47(e), (n), and (v) are dismissed.

ORDER OF COURT

And now, March 17, 2011, after consideration of the defendant’s preliminary objections to plaintiff’s complaint, it is ordered and decreed as follows:

1. Defendant’s preliminary objection in the form of a demurrer to the negligence per se causes of action is sustained and the court finds that the cited regulations cannot form the basis of a cause of action for negligence per se; however, such allegations shall remain in the complaint as being applicable and relevant to the standard of care applicable to plaintiff’s general negligence claims.
2. Defendant’s preliminary objection based upon the inclusion of impertinent and scandalous materials is sustained as to Paragraphs 34, 40 and 41 of the complaint and said paragraphs are stricken, with leave granted to the plaintiff to amend Paragraph 40 of the complaint. Defendant’s objections are dismissed as to Paragraphs 16 and 19.
3. Defendant’s preliminary objection to the inclusion of conscious, pain and suffering in an action for wrongful death is sustained in that the court finds that plaintiff may not recover for pain and suffering in an action for wrongful death. Therefore, Paragraph 52 of the complaint is stricken.
4. Plaintiff’s preliminary objection raising a lack of sufficient specificity is granted in part and denied in part. The preliminary objection is sustained as to Paragraphs 47(a) through (d), (1), (m), (t) and (u) and such paragraphs are stricken, but plaintiff is granted leave to amend said paragraphs to conform to Pa.R.C.P. 1019. Defendant’s preliminary objection to Paragraphs 47(e), (n) and (v) are dismissed.
5. Plaintiff’s amended complaint must be filed within twenty (20) days of the date this order is docketed. If plaintiff fails to file an amended complaint with the time herein specified, defendant shall have twenty (20) days therefrom in which to file an answer to plaintiff’s complaint.

      . Plaintiff cites numerous provisions of OBRA. The court has e - amined the provisions and determined that the cited provisions, like those in Goda and Frantz, set forth long term goals that nursing homes should strive to attain.


author: FORD, J.,

text:
    Bradish v. Dep’t of Transportation

      Kathy Marie Bradish, pro se.

      Joel West Williams, for Commonwealth.
    May 6, 2011
   FORD, J.,

The Commonwealth of Pennsylvania, Department of Transportation (PennDOT), filed a notice of appeal from an order of this court which order was filed on February 22, 2011. In that order, I granted the appeal of appellant, Kathy Marie Bradish, from PennDOT’s suspension of her driver’s license based on her allegedly driving her vehicle without required financial responsibility. As I explain in this opinion, prepared pursuant to Pa.R.A.P. 1925(a), the appeal lacks merit and should be dismissed.

On May 14, 2010, a police officer made a traffic stop of the vehicle driven by appellant. The officer asked appellant to produce proof that the vehicle was insured. Appellant provided the officer with documentation of her insurance. However, when the officer attempted to verify the insurance information provided by appellant, his computer indicated that the appellant’s insurance had lapsed. The officer issued a citation to appellant for operating her vehicle without required financial responsibility in violation of 75 Pa.C.S. § 1786(f).

By letter dated July 19, 2010, PennDOT notified appellant that her driving privileges in the Commonwealth were to be suspended for three months beginning on August 23, 2010, based on her violation of 75 Pa.C.S. § 1786(f).

On August 16, 2010, appellant filed a “petition for appeal from a suspension of operating privileges/denial of driver’s license/suspension of motor vehicle registration.” Through this petition, appellant argued that PennDOT’s suspension of her driving privileges was improper because, contrary to PennDOT’s determination, appellant had insurance on her car on May 14, 2010.

I conducted a hearing on the merits of appellant’s appeal on February 14, 2011. At the hearing, appellant was the only person who testified. Both appellant and counsel for PennDOT submitted documents into evidence.

On February 22, 2011, I entered an order (the one which is now appealed) granting the appeal and ordering that appellant’s driving privileges remain intact.

On March 21, 2011, PennDOT filed this appeal to the Commonwealth Court of Pennsylvania. Through this appeal, PennDOT challenges the order I entered on February 22, 2011, granting appellant’s appeal from her license suspension.

In response to an earlier order, PennDOT filed its concise statement of errors complained of on appeal (concise statement) pursuant to Pa.R.A.P. 1925(b) on April 8,2011.

By order dated April 14, 2011,1 directed PennDOT to pay the court reporter the estimated cost of transcribing the notes of testimony from the February 14 hearing by May 2, 2011.

As of the date of this opinion, PennDOT has not paid for transcription of the February 14 hearing. By failing to make payment for transcription, PennDOT has made appellate review impossible and has waived all issues on appeal. See Smith v. Smith, 637 A.2d 622 (Pa. Super. 1993); and Gorniak v. Gorniak, 504 A.2d 1262 (Pa. Super. 1986). For this reason, PennDOT’s appeal should be dismissed.

In the event the Commonwealth Court declines to dismiss this appeal due to PennDOT’s failure to pay for the transcript, I turn to the issues raised in PennDOT’s concise statement.

In its concise statement, PennDOT first contends that I “erred in sustaining [appellant’s] appeal where [PennDOT] established its prima facie case, and [appellant] did not produce clear and convincing evidence that the vehicle was insured at the time it was operated.” This contention lacks merit.

The Commonwealth Court addressed the respective burdens of proof on parties at a hearing on an appeal from a suspension of a driver’s license.

[T]o meet its burden of proof where a licensee has appealed a license suspension..., [PennDOT] must establish that the vehicle is one which must be registered, that financial responsibility was not secured or maintained, and that the licensee operated the vehicle while it was not covered by financial responsibility.

Fine v. Department of Transportation, 694 A.2d 364, 367 (Pa.Cmwlth. 1997).

Once PennDOT satisfies its burden of proving a prima facie violation, the burden shifts to the licensee to prove, by “clear and convincing evidence,” the vehicle was insured at the time it was driven. Capone v. Department of Transportation, 875 A.2d 1228, 1231 (Pa.Cmwlth. 2005) (citations omitted).

At the hearing on February 14, 2011, PennDOT presented evidence to establish a prima facie violation of 75 Pa.C.S. § 1786 by appellant. Specifically, PennDOT submitted into evidence exhibit C-l which contained a certified copy of the docket in Lehigh County summary case SA-266-2010 against the appellant stemming from her alleged failure to produce proof of financial responsibility on May 14, 2010. The docket indicates that Magisterial District Judge Jacob E. Hammond found appellant guilty of violating 75 Pa.C.S. § 1786(f) after a summary offense trial. See Capone v. Department of Transportation, 875 A.2d at 1231, as to the sufficiency of such evidence for prima facie proof purposes. This proof of conviction before the magisterial district judge was the extent of PennDOT’s evidence.

However, appellant presented clear and convincing evidence at the February 14 hearing that her vehicle was insured on May 14, 2010. Appellant submitted into evidence a copy of an order from the appeal of her summary conviction to the Lehigh County Court of Common Pleas. The order was dated November 24, 2010, and was signed by the Honorable James T. Anthony. In the order, Judge Anthony found appellant not guilty of operating her vehicle without insurance, thereby reversing appellant’s summary conviction in case SA-266-2010. Although this order was received on the record at the February 14 hearing, it was not marked. I subsequently marked this exhibit as R-1. Additionally, I took judicial notice of Judge Anthony’s order. See Pa.R.E. 201.

In Fine v. Department of Transportation, 694 A.2d 364 (Pa. Cmwlth. 1997), the Commonwealth Court addressed a situation similar to the one at hand. In Fine, PennDOT suspended the driver’s license of a licensee based on the licensee’s entry of a guilty plea to a violation 75 Pa.C.S. § 1786 before a magisterial district judge. However, the licensee later appealed the summary conviction to the Court of Common Pleas of Allegheny County and was found not guilty there. The licensee then appealed his license suspension. At the license suspension appeal hearing, PennDOT relied on the record of the summary conviction to demonstrate that the licensee operated his vehicle without financial responsibility. In rebuttal, the licensee presented documentation that this summary conviction was reversed by the Allegheny County Court of Common Pleas. After the court of common pleas denied the licensee’s license suspension appeal, the licensee filed an appeal to the Commonwealth Court. The Commonwealth Court reversed the trial court and stated the following:

Although PennDOT’s initial submission of [the] records [from the district court] may have met its burden to establish a [summary] conviction [under 75 Pa.C.S. § 1786], it is a rebuttable presumption; Licensee’s submission of a certified copy of the appeal is sufficiently clear and convincing to rebut the presumption of a conviction.... PennDOT did not meet its ultimate burden of proof because the presumption of a conviction was sufficiently rebutted by the record of the not guilty judgment in the Court of Common Pleas.... Id. at 367 (emphasis added).

Here, as in Fine, PennDOT’s evidence that appellant operated her vehicle without required financial responsibility was a certified record from the magistrate judge’s level of her summary conviction for a violation of 75 Pa.C.S. § 1786. However, the appellant sufficiently rebutted PennDOT’s evidence by presenting a copy of Judge Anthony’s order from her appeal of the summary conviction in which the judge found her not guilty of the offense. I properly took judicial notice of this acquittal which is reflected in the court record. Thus, under the precedent of Fine, I acted properly in granting appellant’s appeal.

As to the second issue raised on appeal, PennDOT, in its concise statement, asserts that the court “erred in admitting evidence over [PennDOT’s] objections.” I do not know what is being contested in this vague statement. The Superior Court of Pennsylvania has stated the following:

When a court has to guess what issues an appellant is appealing, that is not enough for meaningful review. When an appellant fails adequately to identify in a concise manner the issues sought to be pursued on appeal, the trial court is impeded in its preparation of a legal analysis which is pertinent to those issues. In other words, a Concise Statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no Concise Statement at all. Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa. Super. 2006) (quoting Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa. Super. 2001)).

Because the aforementioned statement is vague, PennDOT has waived this issue on appeal.

For all of the reasons stated above, I acted properly in granting appellant’s appeal from her license suspension. Therefore, this appeal should be dismissed.


author: GORBEY, J.,

text:
    In re H.B.

      Caprice Hicks-Bunting, for mother.

      David Natan, for CYS.

      Lisa McCoy, guardian ad litem.
    May 18, 2011
   GORBEY, J.,

FACTUAL AND PROCEDURAL HISTORY

T.B., Jr., born January 28, 1998, H.B., born March 10, 2007, T.B., born November 11, 2000 and S., bom May 11, 1994, are the children of T. B., Sr., (father) and P. G. (mother). The family first came to the attention of the Children and Youth Social Service Agency (agency) on November 3, 2008 when the agency learned that Mr. B. and his oldest son, M. were using marijuana in the house and that mother had been arrested for selling drugs to an undercover policeman. There was reportedly no gas, no heat and no food in the house. The agency provided services and mother and father signed a Family Service Plan on March 17, 2009. Then, unknown to the agency, the family was evicted on September 3, 2009 for nonpayment of rent. The agency learned of the eviction on September 29,2009, when father went to the Water Street Mission with the three youngest children to seek shelter, father tested positive for cocaine and marijuana and was refused shelter. The Mission informed the agency which started a successful search for father and the children, who had been living in father’s car and then in an inappropriate house since the eviction. The agency learned also that mother had been jailed earlier in the month pursuant to her prior arrest. On November 25, 2009, after an adjudication and disposition hearing, the children were found to be dependent. S., the oldest child, came into care on July 27, 2010. She had given birth to a child on June 28, 2009, and had lived with the baby and its father in the paternal grandmother’s home since then. The baby now lives with his father.

The younger children remained in foster care from September 2009 until April 30, 2010, when father completed the requirements of the Family Service Plan and the children were released to him. He had been successfully discharged from a drug and alcohol program on December 4, 2009, and had successfully completed a parenting class on March 16, 2010 and had full time employment. (N.T. 23, 10/25/10) On May 7, 2010, the court ordered termination of court supervision and the three children were found to be not dependent.

The situation changed four months later when father tested positive for cocaine and alcohol and the children were re-placed in care on July 27, 2010. (N.T. 11, 10/25/10) On August 23, 2010, a CASA was appointed by the court. Father disputed the validity of the test, contending that the urine tested had not been his, and on October 27, 2010 the court directed that regular random testing be done as well as testing before each visit.

Father did not show up for any of the five requests for random testing. (N.T. 17-18, 10/25/10) At the time of an adjudication/disposition hearing on August 30, 2010, mother, who had been incarcerated from September 25, 2009 until August 18,2010, was at Quehanna Boot Camp in Reading, PA, which was part of an adapt program which also provided a halfway house with relevant services. (N.T. 3, 8/25/2011). Residing in the half-way house on October 25, 2010, mother was present in court. (N.T. 32,10/25/2010) mother and father intended to live together after her release. (N.T. 29, 10/25/2010).

After the October 25, 2010 hearing, the three younger children remained in foster care. (N.T. 32, 10/25/2010). Maternal grandmother was a resource for 16-year old S., who stayed at the Youth Intervention Center until her grandmother was qualified as a foster parent. (N.T. 30, 10/25/2010). The Plans for both parents were reestablished, including drug, alcohol, mental health, parenting, and daily needs issues. (N.T. 33, 10/25/2010). It had been recommended that father attend NA and AA. He reported that he was attending meetings, but presented no documentation. (N.T. 30-31, 8/21/2011).

His housing was not appropriate for children. Prior to the March 21, 2011 hearing, S. decided to leave her grandmother and come back to Lancaster county to be with father. She again went into care.

Except for H., the children were adjusting well to their new foster homes. H. had problems when she was placed in the same foster home with T. and T. because she was acting out and getting more attention to the detriment of the older children. In the new home, severe behavioral problems began. The CASA in the case noted that H. had violent and frequent temper tantrums. She urinated in inappropriate places out of hostility. She destroyed property, attacked her siblings, and displayed disassociative behavior. She had a tentative diagnosis of reactive attachment disorder and was placed in a separate home, where her behavior responded well to a different parenting style. The children see each other at a bi-weekly visitation. (N.T. 10, 3/21/2011)

The agency did not recommend a goal change, but a Coby’s caseworker and the children’s guardian ad litem wanted a change of goal to adoption, because they both believed that the children need permanency and stability.

ISSUE

Whether a change of goal is appropriate for four children in a situation in which a mother was unavailable because of incarceration for selling drugs, and the father was unable to refrain from drug use, maintain an adequate home and resources for his three children, and the oldest child, a teenager, had given birth to a baby in June of 2009 and did not have a stable residence with either her family or her baby’s father.

ANALYSIS

A dependent child is:

One who is without proper care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental or emotion health, or morals. A determination that there is a lack of proper parental care or control may be based upon evidence of conduct by the parent, guardian or other custodian that places the health, safety or welfare of the child at risk, including evidence of the parent’s, guardian’s or other custodian’s use of alcohol or a controlled substance that places the health, safety or welfare of the child at risk. 42 Pa.C.S.A. § 6302

Given the facts of this case, which include mother’s two year incarceration, and father’s drug use and homelessness and living with his children in his car, it is clear to the court that the B. children are dependent children. Once that has been decided, at a subsequent permanency review hearings, the court must consider the statutorily mandated factors of 42 Pa.C.S.A. § 6351(f). These are:

1. [To] determine the continuing necessity for and appropriateness of the placement;
2. [To] determine the appropriateness, feasibility and extent of compliance with the permanency plan developed for the child;
3. [To] determine the extent of progress made toward alleviating the circumstances which necessitated the original placement;
4. [To] determine the appropriateness and feasibility of the current placement goal for the child;
5. [To] project a likely date by which the goal for the child might be achieved;

And, further,

9. [I]f the child has been in placement for at least 15 of the last 22 months or the court has determined that aggravated circumstances exist and that reasonable efforts to prevent or eliminate the need to remove the child from the home or to preserve and reunify the family need not be made or continue to be made, [to] determine whether the county agency has filed or sought to join a petition to terminate parental rights and to identify, recruit, process and approve a qualified family to adopt the child... (In re N.C., 909 A.2d. 818 (Pa. Super. 2006).

This last paragraph reflects the approach of the Federal Adoption and Safe Families Act, which considers the amount of time a child has been in care as a specific and important element in a goal change decision.

Essentially, the ASFA directs the emphasis away from the paramount importance previously enjoyed by parental rights to establish unequivocally that the goals for children in the child welfare system are safety, permanency and well-being.... The legislative of history of ASFA reveals that this act was designed to curb an inappropriate focus on protecting the rights of parents when there is a risk of subjecting children to long term foster care or returning them to abusive families. In the Interest of C.B. and A.L., Minors, 861 A.2d 287, 295 (Pa. Super. 2004).

The court considered all of the above-cited elements. The B. children clearly need to remain in placement at this time. Mother’s compliance with the plan is far from complete, her having been in prison for most of the children’s time in care. Although father seemed to have indicated that he had the strength and character to complete his plan and actually regained custody of his children, his relapse into drug use and failure to show up for any of the randomly scheduled tests presents a bright warning light to the court. That relapse and apparently knowing avoidance of these tests makes it difficult for the court to ascertain how long it will take for father to be in a position, if ever, to regain his children.

Once a child has been adjudicated dependent, additional decisions are made according to his best interest. In re J.S.W., 651 A.2d 167 (Pa. Super 1994). The court cannot believe that prolonging the current difficult situation, which has no end in sight, will serve the three B. children’s best interests. Clearly, the intent of the legislature in providing the statutory instructions of Section 6351(f) is to provide a reasonable amount of time — i.e., at least 15 months — for a parent to regain control of his or her life in order to have his or her child returned. But, the section also indicates that past fifteen months, the court must consider whether the odds are against the parents regaining that control within a reasonable period of time and whether the child should therefore be permanently settled elsewhere in a healthy living environment. It is this court’s opinion that mother and father have run out of time. If they were on the cusp of immediate success, the court would have the option of stretching the available time to allow the parties to finish their plans. These individuals have a long drug history and the court is not convinced that both can overcome their past difficulties and provide appropriate care for her children. And since the parties plan on residing together as a family, both must succeed, and neither’s behavior has shown that success is near. The court therefore believes that the successful reunification goal for these children must be changed so that they do not have to continue in the limbo caused by mother’s and father’s drug-linked instability.

These are troubled children. S. is a 16 year old mother who does not appear to have the ability to care for her child or even herself. At her age, she would not have a goal of adoption, but of another planned permanent living arrangement (APPLA) that will meet her current needs.

H. appears to have a relationship disorder which makes her interaction with others, both caretakers and siblings, behaviorally negative and physically violent. The other children are suffering from absence from the other members of their family. They have been moved several times and cannot depend on their parents to carry out their parental obligations. All of them need stability, consistency, love, support and guidance in their young lives. They should not have to wait until such future time until their father and mother are inclined to stop using drugs.

The case law is clear as to what children such as these deserve from the courts. Even when the parent makes earnest efforts the court cannot and will not subordinate indefinitely a child’s need for permanence and stability to a parent’s claims of progress and hopes for the future. In re R.M.G., a minor, citing in In re Adoption of R.J.S., 901 A.2d 502 (Pa. Super. 2006). These parents are out of time in the presence of these children’s needs.

CONCLUSION

For the reasons stated above, the court finds that T.B., Jr., T. B., H. B. and S. B. are dependent children and have been in the custody of the agency in excess of fifteen months; therefore, these children’s best interests demands that the goal for the first three children must be changed to adoption and the goal for S. must be changed to another planned permanent living arrangement

      . The child, T., is hereby referred to as T.B., Jr., although the notice of appeal referred to him as T.B., The docket in the Clerk of Courts Office of Lancaster County, Pennsylvania has his name listed as T. B., Jr. The Jr. is included in this opinion so as to avoid confusion with his father, T. B., Sr.


author: CAMPBELL, J,

text:
    Lillis v. Barton

      Pro se, for plaintiffs.

      Kathleen Dautrich, for defendants.
    April 19, 2011
   CAMPBELL, J,

I. BACKGROUND

On March 9, 1990, plaintiff filed a complaint against defendant for the support of one minor child, Alan Wylie-Barton (hereinafter “child”), bom January 31,1990. Upon agreement of the parties, the court entered an order for support against defendant on November 30, 1993.

On October 26, 2007, the domestic relations section mailed plaintiff an emancipation inquiry. The emancipation inquiry asked questions pertaining to, among other things, the date of child’s 18th birthday, the date of child’s high school graduation, and the existence of child’s special needs. Plaintiff returned the emancipation inquiry within the proscribed time. Then, the domestic relations section sent plaintiff a second, substantively identical emancipation inquiry on December 3, 2007. Plaintiff returned the second emancipation inquiry within the proscribed time and also included a letter from the Special Education Department Head at child’s school that described the special education services and itinerant learning support services provided to child. On May 23, 2009, upon motion by the domestic relations section, this court terminated the support order pursuant to Pennsylvania Rule of Civil Procedure 1910.19(e)(4).

On May 5,2010, plaintiff filed a new complaint for the support of child, who was 20 years of age at the time of filing. An initial conference was held on May 28, 2010, and both parities participated. The parties did not reach an agreement at the conference; thus, an interim order was entered and a support hearing was held on July 23, 2010. Based on the support hearing, the support master concluded that defendant was liable for the support of child finding that child’s mental disability precludes him from engaging in profitable employment and that employment is not available for him at a supporting wage. The support master further recommended that the matter be relisted for additional testimony regarding the issue of income/eaming capacity.

Defendant filed timely exceptions to the support master’s recommendation on September 10, 2010 and on September 13, 2010. Plaintiff and defendant each filed an argument brief, and on March 14, 2011, this court held support argument.

II. Discussion

Berks County conducts its support proceedings pursuant to Pennsylvania Rule of Civil Procedure 1910.12. Under this procedure, a party who wishes to make legal argument to contest any. matters that occurred during the support hearing may file exceptions to the report of the hearing officer (called a “support master” in Berks County). Pa.R.C.P. No. 1910.12(e), (f). The rule is clear that “[e]ach exception shall set forth a separate objection precisely and without discussion.” Id. at (f).

Defendant’s exceptions filed September 10, 2010 are not in compliance with the aforementioned rule. The document cites two Pennsylvania Superior Court decisions, followed by a largely incoherent paragraph consisting of multiple nonsensical sentence fragments. The exceptions are not, by any means, set forth separately and precisely. Additionally, they were neither filed by the attorney of record, nor signed by anyone. For these reasons, this court will not review defendant’s exceptions filed September 10, 2010.

Defendant also filed exceptions on September 13,2010. This document clearly identifies defendant’s objections to the support master’s recommendation in numbered, complete sentences. Thus, this court will review such exceptions and do so by addressing each individually.

Defendant alleges that plaintiff’s complaint for support is barred by the doctrines of res judicata and collateral estoppel.

The doctrines of res judicata and collateral estoppel are distinct, but related principles. See C.J. v. Dep’t of Pub. Welfare, 960 A.2d 494, 499 (Pa. Cmwlth. 2008). Res judicata, also known as claim preclusion and technical res judicata, provides that where a final judgment on the merits exists, a future lawsuit on the same cause of action is precluded. Id. Collateral estoppel, also known as issue preclusion and broad res judicata, acts to foreclose litigation in a subsequent action where issues of law or fact were already litigated and necessary to a previous judgment. Id. The policy behind both doctrines is the furtherance of prompt and efficient administration of the courts’ business. Warthen v. U.S., 157 Ct.Cl. 798, 800 (1962). “They are grounded on the theoiy that one litigant cannot unduly consume the time of the court at the expense of other litigants, and that, once the court has finally decided an issue, a litigant cannot demand that it be decided again.” Id.

This court’s research discovered, and defendant’s brief provided, no precedential decision addressing the issue of whether a court’s termination of a support order pursuant to Rule 1910.19(e)(4) has preclusive effect under either doctrine. Though, in Style v. Shaub, a recent Superior Court decision and a case procedurally similar to the instant matter, the Superior Court addressed the merits of the case rather than sua sponte raising the issue of preclusion. Style v. Shaub, 955 A.2d 403, 408 (Pa. Super. 2008) (approximately one year after termination of a child support order pursuant to Rule 1910.19, the petitioner filed a new complaint for support based on the child’s medical and psychiatric limitations). The Superior Court’s silence lacks precedential weight, but it is persuasive that a termination order under Rule 1910.19(e)(4) lacks preclusive effect.

Regardless, this court does not find the requirements of the applicable doctrine satisfied. The applicable doctrine in the instant matter is collateral estoppel because defendant is attempting to foreclose litigation in a subsequent child support action on the basis that the parties litigated the issue of emancipation in a previous action. The doctrine has several distinct requirements: “(1) the issue decided in the prior case is identical to one presented in the later case; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a parly in the prior case; (4) the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding and (5) the determination in the prior proceeding was essential to the judgment.” Catroppa v. Carlton, 998 A.2d 643, 646 (Pa. Super. 2010). Assuming arguendo that the other four requirements are met, this court finds that plaintiff did not have a full and fair opportunity to litigate the issue of emancipation.

The Superior Court has deemed Rule 1910.19(e)(4) “essentially a house-keeping rule” enacted to dispose of old orders. Style, 955 A.2d at 408. The rule provides the court with administrative authority to terminate support orders based solely on a party’s response or lack of response to an emancipation inquiiy. Pa.R.C.P. 1910.19(e) (4). In Berks County, the emancipation inquiry is simply a two-page document consisting of six short questions or requests for information created by the domestic relations section that the obligee must complete and return. Prior to the court’s decision, there is no hearing, no opportunity for the obligee to present witnesses, and no occasion for the court to determine credibility. Id. Rather, the court bases its action solely on the results of the very limited emancipation inquiry. Id. Such a cursory briefing of the issue provides the court with adequate information to take administrative action, but it does not provide the parties with a full and fair opportunity to litigate the issue of emancipation.

Furthermore, this Commonwealth has always attributed the utmost importance to the duty and responsibility of parents to financially support their children. See Diehl v. Mulhern, 594 A.2d 692, 695 (Pa. Super. 1991). This concern far outweighs the limited effect that such holding has on the prompt and efficient administration of the court’s business. Also, defendant is not unduly burdened by the procession of plaintiff’s complaint since defendant did not issue the emancipation inquires or petition this court for termination. Rather, this was the work of the domestic relations section, and it is wholly possible, even likely, that defendant was unaware of such proceedings or their necessity.

Because plaintiff wasn’t given a full and fair opportunity to litigate the issue, because the court’s paramount concern is for the welfare of the child, and because the policy concerns that underlie preclusion were not implicated, this court holds that a termination order pursuant to Rule 1910.19(e)(4) does not warrant preclusive effect under the doctrine of collateral estoppel. Accordingly, this exception is denied.

Defendant alleges that the support master failed to consider that child has graduated from high school.

Defendant’s position on this matter, as outlined in his brief, is more precisely that plaintiff did not meet her burden of proof when she responded to the emancipation inquires. Clearly, as the court that terminated the original support order, this court agrees with defendant: when plaintiff responded to the emancipation inquiries in 2007, she did not meet her burden of proof. But, this is not the issue at hand. Plaintiff has filed a new complaint for support, and it is plaintiff’s new complaint that is before this court. As previously discussed, the instant claim is not barred by this court’s prior termination order. Thus, it is irrelevant that plaintiff did not meet her burden of proof when responding to the emancipation inquires. Accordingly, this exception is denied.

Defendant alleges that the support master erred in entering an order because mother waited approximately 10 months after learning of the support termination before filing a new complaint.

Defendant has neglected to direct this court to any authority providing grounds to grant this exception. Furthermore, there is no evidence that defendant detrimentally relied on or was prejudiced by this delay, as would be required to support a finding of equitable estoppel. Therefore, this exception is denied.

Defendant alleges that plaintiff did not meet her burden ofproof that child is disabled by failing to provide competent medical evidence.

According to 23 Pa.C.S.A. § 4321, “[p]arents may be liable for the support of their children who are 18 years of age or older.” 23 Pa.C.S.A. § 4321 (emphasis added). In applying this statute, the Superior Court has found a presumption that the duty to support a child ends when the child reaches majority, but that such presumption can be rebutted by showing that the child is too feeble physically or mentally to support himself or herself. See Style, 955 A.2d at 403. The test is “whether the child is physically and mentally able to engage in profitable employment and whether employment is available to the child at a supporting wage.” Hanson v. Hanson, 625 A.2d 1212, 1214 (Pa. Super. 1993). It is the party attempting to rebut the presumption that has the burden of proof. Style, 955 A.2d at 409.

In the instant case, plaintiff carries the burden of proof. At the support hearing, plaintiff testified that child is autistic with developmental delays, neurological deficiencies, and turrets tendencies. She also stated that his gross and fine motor skills are deficient, his depth perception is deficient, his attention span is poor, and he cannot correctly interact socially.

Plaintiff entered into evidence a letter from child’s family physician, Dr. Ron Burinsky, D.O., along with a report completed by Dr. Anthony J. Fischetto, ED. D. of the Bureau of Disability Determination. Both documents detail child’s disability and support plaintiff’s testimony. Dr. Fischetto’s report additionally highlights that child needs an aide just to go to school and requires help with his basic needs, such as personal grooming and hygiene.

The record further indicates that child was approved for Supplemental Security Income (SSI) after he reached the age of majority. According to the federal Social Security Act, an adult is considered disabled for SSI purposes if he or she is unable to engage in any substantial gainful activity due to a medically determined physical or mental impairment. 42 U.S.C.A. § 1382c(a)(3)(A) (emphasis added).

In regard to the first part of the Superior Court’s test, there is sufficient evidence to conclude that child’s disability renders him unable to engage in profitable employment: he is autistic, his autism manifests itself in physical and mental deficiencies, he needs assistance with simple tasks, and the federal government deemed him unable to earn an income. It is irrelevant that plaintiff did not provide evidence pertaining to the second part of the test. The Superior Court in Heitzman-Nolte v. Nolte, 837 A.2d 1182 (Pa. Super. 2003), held a father liable for support of his blind adult child even though no one “provided information concerning ‘employment at a supporting wage.’” Id. at 1185 (quoting Hanson, 625 A.2d at 1214). The Superior Court based its holding on the fact that the child was not capable of self support, and the court required no evidence of local employment opportunities or potential income. Id. Parties have only been required to address the second part of the test when the child is able to engage in some form of profitable employment. See Style, 955 A.2d at 409-11. See also Com. ex rel. Cann v. Cann, 418 A.2d 403 (Pa. Super. 1980). In the instant case, plaintiff has provided sufficient evidence to support the finding that child is unable to engage in profitable employment, and such a finding is dispositive of the issue at hand. Thus, plaintiff has rebutted the presumption that the duty to support one’s child ceases at majority, and this exception is denied.

Defendant alleges that the support master failed to consider Style v. Shaub, 955 A.2d 403 (Pa. Super. 2008).

First, the support master devoted a substantial portion of her recommendation to discussing Style. Second, Style is factually distinguishable from the instant case in substantial ways. In Style, the child’s own expert testified that the child was able to perform a variety of physical tasks, work consistently, and complete a satisfactory amount and quality of work. Style, 955 A.2d at 410. The expert gave the child a “guarded diagnosis for successful entry in the workforce.” Id. As previously discussed, the evidence in the instant case indicates just the opposite. These factual differences are significant. Thus, the outcome in Style is not controlling, and this exception is denied.

In accordance with the above reasons, this court enters the following order:

ORDER

And now, April 19, 2011, in accordance with this court’s accompanying opinion, it is hereby ordered that defendant’s exceptions are denied and this matter shall be relisted for additional testimony regarding the issue of defendant’s income/eaming capacity before Master Kleinfelter.

      . Although defendant’s filing on September 13,2010 exceeded by 1 day the 20 days allotted to file exceptions by Pennsylvania Rule of Civil Procedure 1910.12(f), when the last day of an allotted period falls on a Sunday, such day is omitted from the computation. Pa.R.C.P. No. 106. In the instant case, September 13,2010 was a Sunday; thus, defendant’s filing was timely.

      . In Ruth F. v. Robert B., Jr., the Superior Court raised sua sponte the issue of res judicata and stated, “ [w]hile this issue was neither briefed on appeal nor raised in the court below, since it effects the jurisdiction of this court to dispose of the matter, we may determine the issue sua sponte.” Ruth F. v. Robert B., Jr., 690 A.2d 1171, 1175 n.1. (Pa. Super. 1997). See also United States v. 5 Unlabeled Boxes, 572 F.3d. 169, 174 (3d Cir. 2009); State of Arizona v. State of California, 530 U.S. 392, 412 (2000).

      . Courts and practitioners alike commonly use the term “res judicata” when actually referring to collateral estoppel. See Hebden v. W.C.A.B, 632 A.2d 1302, 1304 (Pa. Super. 1993). It appears that defendant followed this practice by using the phrase “res judicata,” but then only discussed the requirements of collateral estoppel.

      . This ignorance is precisely what led to Rule 1910.19(e)’s promugation. See Pa.R.C.P. No 1910.19 (2002 Explanatory Comment) (“[M] any obligors are unaware of the necessity of filing a petition to terminate a child support order when the child becomes emancipated.... New subdivision (e) is intended to address this problem....”).

      . The Superior court in Style v. Shaub, 955 A.2d 403,408(Pa. Super. Ct. 2008), and in Castaldi v. Castaldi-Veloric, 933 A.2d 903,910-11 (Pa. Super. 2010), held that, assuming the doctrine of equitable estoppel applies to support matters, a party asserting the doctrine would have to demonstrate detrimental reliance to prevail.

      . Defendant’s argument is precarious: A support order stemming from plaintiff’s new complaint would be retroactive to its filing date, not the date of the termination order. Thus, if defendant is found liable for support under the new complaint, he will have had a 10-month vacation from support payments that plaintiff cannot recoup.

      . At the support hearing, defendant objected to the admission of both documents as hearsay. The support master overruled defendant’s objection and admitted the documents into evidence. Defendant did not file an exception pertaining to this issue. Though, due to the nature of these documents, this court puts little weight in their probative value.

      . It is of little consequence that child held one summer job in 2007 washing dishes and cleaning tables considering that the Pennsylvania Office of Vocational Rehabilitation secured the position for child and child required an aide to complete these menial tasks.