author: KELLER, J,

text:
    Carbo v. Carbo

      C.P. of Berks County,
    no. 06-04448 # 3.

      Anthony Carbo, pro se.

      Rebecca Bell, for appellee.
    November 18, 2008
   KELLER, J,

The plaintiff/ appellant in the above captioned case appeals this court’s order of September 15,2008 whereby this court, after a “best interests of the child” analysis, ordered no change to the parties’ current custody order, allowing Mother to retain primary physical custody and awarding Father partial physical custody of the minor children. The current appeal was filed by appellant pro se on September 19, 2008 and then amended on October 2, 2008.

On October 15,2008, this court issued an order pursuant to Pa.R.A.P. 1925(b) directing the appellant in the above captioned case to file of record and serve upon this court a concise statement of errors complained of on appeal no later than 21 days after the date of that order. The concise statement was filed on October 27,2008 and raises the following issues on appeal:

“(1) Plaintiff, Anthony R Carbo, appellant, has identified the errors in as much specificity as possible.

“(2) The court erred when on July 8,2008, at the custody conference and scheduling custody trial de novo, James Markofski represent Dawn L. Carbo, B.R.C.P. Rule 1915.3(e) NO attorney shall be permitted to represent a party in custody proceedings unless a written appearance of that attorney is first filed of record.

“(3) The court erred when on July 8, 2008 the court denied appointment of guardiam (sic) ad litem. All three children asked for an attorney.

“(4) The court erred when State Trooper Dziedzic did not bring all that was asked by the subpoena, His report form April, 12, 2006.

“(5) The court erred, when the subpeona for Jeannette Bolich to testify was noy (sic) honared (sic).

“(6) The court erred by granting continued (sic) after continued (sic) to the defendant’s counsel.

“(7) The court erred when a hearing judge interviews a child in a custody case, certain procedures must be generally met:

“(1) counsel must be present: was denied

“(2) counsel must have the opportunity to question the child: was denied

“(3) the testimony must be transcribed and made a part of the record:

“The Superior Court has prescribed this procedure for the inteiTogation of a child who is the subject of a custody action, In Gerald G. v. Theresa G., 284 Pa. Super. 498, 426 A.2d 157 (1981) the court has states this certain procedur (sic)

“(8) I Anthony F. Carbo object to the children being driven to court by the stepsister Jessica Carbo, who had an hour of alone time with the children befor (sic) they were in court to testify.

“(9) The court erred when it stoped (sic) me from hearing testimony on Mrs. Nancy Alman and Hunter Myu.

“(10) The court erred when I was not able to give testimony on attorny (sic) John A. Hoffert, Esq. When on July 14,2006 Mr. Hofffert told me that it was the law in Berks County, that I had to give primary physical custody to Dawn L. Carbo first and go to a marriag (sic) councilor (sic) and then I had to redo the custody of children. I haved (sic) been fighting for my children every day after that.”

PROCEDURAL HISTORY

This case, like so many custody disputes, weaves a tangled web which only serves to ensnare the three small children who find themselves the subj ect of their parents ’ tireless battle. The saga began on May 11, 2006 when Father filed a divorce complaint, including a custody count, by and through his then attorney, Daniel Sager, Esquire. The parties were scheduled to attend a custody conciliation on July 3,2006 as well as attend the “Children in the Middle” program, which both parties did. Subsequently, this court entered an order on July 14, 2006 upon agreement of the parties and after the above named custody conference with Robert E. Giering, Esquire. The parties agreed that Mother and Father would have joint legal custody of the three children, Mackenzie, Madelyn, and Cassidy, with Mother having primary physical custody and Father having partial physical custody on alternate weekends from Friday at 3 p.m. until Sunday at 6 p.m., and every Monday and Wednesday from 3 p.m. until 7 p.m. The parties further agreed to alternate holidays, and share custody at other non-scheduled times as they agreed. Further each parent was to have one week of vacation in the summer, providing 30 days notice to the other parent, with Mother’s choice of a week taking priority in even numbered years and Father’s choice taking priority in odd numbered years. On January 18,2007 Attorney John A. Hoffert, Esquire withdrew his appearance on behalf of Father and Attorney Daniel Sager, Esquire entered his in place of Attorney Hoffert’s. Soon thereafter on August 20, 2007 Attorney Sager motioned this court to withdraw his appearance on behalf of Father as he didn’t believe he could represent Father any longer because of differences of opinion with respect to the representation. This court issued a rule to show cause on August 21,2007 and then granted the motion on August 29, 2007. Thereafter, Father entered his appearance on behalf of himself.

A ceasefire appeared to have been reached between the parties, and all was quiet on the home front until April 21,2008 when Father filed a petition to modify the custody order. In that petition Father indicated that he and the children wanted to spend more time with one another. A custody conciliation was scheduled for June 4, 2008. Father then requested this court allow him to proceed in forma pauperis; that request was granted. He then filed a petition for contempt of order of custody on May 14,2008 alleging that he had not been informed until the day before the surgery that his daughter Madelyn was scheduled to have tubes put in her ears and also that he was not informed until the night before that his daughter Cassidy was having an infected tooth removed. He further alleged he had not seen Mackenzie or Madelyn’s report cards for the past two years and also that he had experienced trouble contacting his children through Wife’s cell phone. Father also prayed this court grant him counsel fees as he had incurred a “substantial” amount, a somewhat questionable request for a pro se litigant. On May 28, 2008 this court scheduled an evidentiary hearing for July 1,2008. Then, on June 9,2008 the custody master filed his recommendation. This court then scheduled the case for a pretrial conference. Before the scheduled hearing, Father filed exceptions to the recommendation of the custody master on June 16,2008. He indicated that the master erred by not awarding him primary physical custody and by giving him alternate weekends and two days during the week, that the master erred by alternating holidays as Mother’s religion did not permit celebration of holidays, that the master erred by not allowing Father to “speak on the unequivocal behaver (sic) of John A. Hoffert, Esquire,” that the master erred by not “separating his proficiency and personal relationship with John A. Hoffert,” making “wrongful recommendations for punishment to Father so he cannot see or spend time or be a positive roll (sic) motal (sic) in the children’s life that the children want,” that the master erred because the petition was for Father to have more time with his children and the master instead took time away, and that the master erred by “not concerning the contempt custody order in Judeg (sic) Keller court on July 8,2008.” On that same day Father also petitioned this court to appoint an attorney for the children, a request which this court deferred until hearing. This court then subsequently denied that request as well as Father’s petition for contempt of the custody order. A custody trial de novo was scheduled until August 27,2008. Surprisingly, Father then petitioned this court to disqualify Mother’s counsel, Rebecca Bell, Esquire. This court set a hearing in the matter for August 12, 2008. Mother’s counsel then petitioned this court for a continuance. This court granted the continuance and rescheduled the case for August 27,2008. The case was then further continued until September 10, 2008 at the request of Mother’s counsel. After hearing held, this court issued the order of September 15, 2008, an order similar to the original order but granting Father more time in that he would have custody of the children from Friday at 3 p.m. until Monday, and if the children had off of school on Monday, until Monday at 3 p.m. He was also given Tuesdays from 3 p.m. until 8 p.m. Father would also have the Christmas holiday, and Mother would have the Thanksgiving holiday. It is this order that Father now appeals to the Superior Court of Pennsylvania.

DISCUSSION

In cases involving child custody the court is obligated to look at the “best interests of the child” in making its determination. The “best interests of the child standard” is applied on a case-by-case basis and includes a consideration of all factors “which legitimately have an effect upon the child’s physical, intellectual, moral and spiritual well-being.” In re Slaughter, 738 A.2d 1013, 1015, (Pa. Super. 1999) (citing Sawko v. Sawko, 425 Pa. Super. 450, 454, 625 A.2d 692, 693 (1993)).

Father first argues that James Markofski, Esquire, who represented Mother at the custody conference, did not enter his appearance on the record. However, this of no consequence to the matter at hand as it occurred at the custody conference between the parties. This court heard the case in a hearing de novo and it is the order from that trial that Father is appealing, NOT the recommended order of the custody officer. Therefore, as the incident did not occur at the hearing de novo this court need not further address the merits of the issue.

Father next argues that this court denied appointment of a guardian ad litem for the parties three children even though the children requested an attorney. In C. W. v. K.A.W., 774 A.2d 745, 748 n.3 (Pa. Super. 2001), the Superior Court made a poignant observation about the role of the guardian ad litem saying:

“[w]e note that a guardian ad litem is not normally appointed in custody cases involving natural parents. A guardian ad litem is a person appointed by the court to represent a minor child’s interest in particular litigation before the court. The appointment of a guardian ad litem is generally reserved for those actions where the trial court deems it necessary because the child’s interest may be adversely affected, e.g, adoptions. However, in custody cases involving natural parents, despite the bitterness of each party towards each other, both parties are focused on the best interests of the child. See e.g., Moorman v. Tingle, 320 Pa. Super. 348, 358, 467 A.2d 359, 364 (1983). Moreover, in a custody case, the trial court is obliged to ascertain the child’s best interest. See McMillen v. McMillen, 529 Pa. 198, 202, 602 A.2d 845, 847 (1992). Since both parties and the trial court are focused on the child’s best interests, it appears that the appointment of a guardian ad litem would not be proper absent extraordinary circumstances, and we note that bitterness between the parties ordinarily does not rise to the level of extraordinary circumstances needed for an appointment of a guardian ad litem.”

As the Superior Court so eloquently put, a guardian ad litem is only necessitated when the child’s interests may be adversely affected by the litigation. Here, as is usually the case when parents are vying for physical custody of their children, everyone has the child’s best interests at heart, not only the parents, but also the court. In the instant case, as this court has long been familiar with the parties, not only through this action but also through the parties’ divorce action, this court did not believe that appointment of a guardian ad litem for the three minor children was warranted. Extraordinary circumstances simply do not exist. This court further had the opportunity to speak with the three young ladies who find themselves the prize of their parents’ litigious and bitter divorce in chambers, and even in the confines of that environment, none of the children expressed any indication nor exhibited any behavior that might oblige this court to appoint a guardian. Here, it is clear that the children and the parents share the same goal namely, proceeding forward in a way that allows the children to spend the most time with each parent while still retaining some sense of stability and normalcy in their young lives.

Father next argues that this court erred when State Trooper Dziedzic did not bring all documents requested in Father’s subpoena. However, Father failed to follow the proper procedure in obtaining the documents. In fact, the trooper testified on the record why he did not bring the documents. The testimony was as follows:

“Trooper: Corporal Reichert is my immediate supervisor. He advised me that the procedure to obtain our report was not followed through correctly and, therefore, I was not to bring any material here other than my recollection.

“The Court: Well, as a practical matter, you didn’t actually observe anything other than talking with Mr. Carbo and

“Trooper: I believe Mr. Garbo’s comment one was about a complaint. Now, to me, that would be a criminal complaint, and I can be 100 percent certain that I did not file any criminal charges against anybody regarding any matter that occurred on April 12. The only thing I would do is an assignment report, names and their statements and so forth. So the report itself is only going to basically state that. Children services I may have contacted them. I am not 100 percent certain.

“The Court: All right.

“Mr. Carbo: I would think that, your honor, that I did and I did talk to the corporal because our dates here have been postponed constantly, and I did talk to the corporal, and he told me—

“Ms. Bell: Objection.

“Mr. Carbo: — What to do.

“Ms. Bell: Objection.

“The Court: Well, it is really not relevant, Mr. Carbo. The report isn’t really relevant. I have allowed you great leeway to have the trooper testify, much of which was hearsay. I don’t know the relevance of this, but you can testify yourself about these things. A report isn’t going to help you. It doesn’t further the inquiry anywhere and ....” (N.T., custody trial, 9/10/08, at 9-10.)

The record indicates that Father served subpoenas on Trooper Dziedzic as well on the commissioner as the custodian of records. While he did this in compliance with proper state police procedure, he failed to follow Pennsylvania Rules of Civil Procedure 4009.1,4009.21-4009.27. However, even if Father had followed proper procedure, the records that Father tried to subpoena were not relevant to the issue of child custody, as this court noted in the aforementioned notes of testimony, thus failing to be admissible under Pennsylvania Rules of Evidence 401-402.

Father also argues that this court erred when “the subpoena for Jeannette Bolich to testify was noy (sic) honared (sic).” (Plaintiff’s concise statement at 1.) The relevant testimony regarding Ms. Bolich is as follows:

“The Court: What would she testify to?

“Mr. Carbo: It goes I had Ms. Bolich here so that I can go over in my petition on the religion, and it is a big factor, the difference of religion between Ms. Carbo and I, and Ms. Bolich is actually Jeannette Bolich is actually an authority. I would consider he an authority on the Jehovah Witness religion, and she can testify to the way that Dawn Carbo was raised and her beliefs and the way that she follows that religion, and it goes to the very heart of this case, your honor. It goes to the very heart of this case, and I believe that the court needs to hear her testimony.

“The Court: Well, you can question Ms. Carbo about those things, and if she presents testimony that you think Ms. Jeannette Bolich would contradict, then we might be in a position to require her to be here to testify, but I don’t know that we need to have her without actually asking Ms. Carbo these questions first.” (N.T., custody trial, 9/10/08, at 4-5.)

As indicated in the testimony above, Ms. Bolich’s testimony was not necessary to the resolution of the issue of Mother’s religion, as indeed Mother could and did testify to the issue herself. Further, Father did not call Ms. Bolich as a rebuttal witness, nor did he testify to the issue in his own rebuttal of Mother’s testimony. This court had no reason to hear Ms. Bolich on the matter thereafter as her testimony was not relevant, nor essential.

Father next alleges that this court erred when it granted “continued after continued to the defendant’s counsel.” We assume that Father intended to say continuance after continuance and will address the issue as such. A review of the record indicates that Mother’s attorney filed two written requests for a continuance. The first motion for continuance was filed on August 4, 2008, and was filed in response to Father’s motion to disqualify Mother’s counsel. In counsel’s motion she requested the hearing be continued because she was already scheduled to appear before the Court of Common Pleas of Montgomery County in a protection from abuse matter. Pa.R.C.P. 216 sets forth the grounds for a continuance and states specifically under (A)(4) that a continuance may be granted for “[sjuch special ground as may be allowed in the discretion of the court.” (emphasis added) Further, in Baysmore v. Brownstein, 771 A.2d 54, 57 (Pa. Super. 2001), the Superior Court stated, “the trial court is vested with broad discretion in the determination of whether a request for a continuance should be granted, and an appellate court should not disturb such a decision unless an abuse of that discretion is apparent. Walasavage v. Marinelli, 334 Pa. Super. 396, 413, 483 A.2d 509, 518 (1984). An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the results of partiality, prejudice, bias or ill will. Commonwealth v. Smith, 543 Pa. 566, 571, 673 A.2d 893, 895 (1996).” Here, no such circumstances existed. This court found counsel’s reason warranted a continuance of the matter and used its discretion to reschedule, as this court set the hearing date without input from counsel. Moreover, this court did not act antagonistically in granting this continuance so as to warrant an abuse of discretion.

Counsel’s second continuance was filed on August 12, 2008. This court scheduled the parties’ custody hearing and Father’s hearing on his motion to disqualify Mother’s counsel for August 27,2008. On this date, and in fact from August 18 — August 28,2008 counsel had a planned vacation to St. Martin which could not be rescheduled. Again, in its sound discretion, this court found a continuance was warranted and thereafter rescheduled the matter to September 10, 2008, when it was heard by this court. This court did not abuse its discretion by granting said continuance. Neither this court nor counsel displayed any vexatious conduct towards Father in requesting and granting these two continuances, but instead this court sought to hear the matter at a time when no party was otherwise engaged. It should further be noted that the aforesaid continuances in no way prejudiced Father or his case as in total both continuances only extended hearing of the matter from August 12,2008 until September 10, 2008.

Father next raises the issue that this court erred when it interviewed the parties’ three young children in chambers in the absence of counsel. This court is quite familiar with the general rule prescribed by Pa.R.C.P. 1915.11(b) which states, “[t]he court may interrogate a child, whether or not the subject of the action, in open court or in chambers. The interrogation shall be conducted in the presence of the attorneys and, if permitted by the court, the parties. The attorneys shall have the right to inteiTogate the child under the supervision of the court. The interrogation shall be part of the record.” This court is further aware of the Superior Court’s most recent case dealing with this issue, Ottolini v. Barrett, 954 A.2d 610 (Pa. Super. 2008). However, it is clear that neither the rule nor the case law address the situation that presents itself in this case. Here, Father is pro se. The parties have engaged in a long and bitter divorce, of which the children are well aware. Instantly, questioning three children under the age of 8 in open court, or in chambers for that matter, with only one of their parents present and doing the questioning would not further this court’s inquiry as to child preference in any way. In fact, allowing Father to question the children at all in such a contentious courtroom situation is not only barbaric, but this court sees little sense in the action as it is most unlikely that any child when questioned by a parent would indicate any preference as to living quarters other than living with that parent. Further, if this court would have allowed Father and Mother’s counsel in chambers during the questioning, but not Mother, there is no doubt that the children would have felt such anxiety under their Father’s intense questioning outside of the presence of their Mother, that they would have easily yielded under the pressure and indicated that they preferred to live with him rather than upset or anger him. Indeed, it is quite telling that none of the children indicated to this court that they believed a change in the current custody order was warranted, a degree of truth that would have doubtfully been divulged in Father’s presence.

Moreover, this court notes that it asked both Father and Mother’s counsel for input as to what the children should be asked and did indeed address the requested topics. Further, at no point in the trial did Father object, even once, to the court conducting the questioning in this manner, the failure of which constitutes a waiver of the issue. Instead, Father indicated to this court that he had the utmost faith in it as well as in what the children would say, and that all three children would request more time with him. The following relevant testimony transpired:

“The Court: All right. You may step down. All right. The way I handle interviewing children when one of the parties is acting as their own attorney, it is just me and the children and the court reporter and my staff, but I do ask the parties what areas you want me to inquire about. You want me to ask all of the children about Jessica?

“Mr. Carbo: Yes, your honor. I would ask that you also ask them on what their wants and desires are as far as a custody arrangement.

“The Court: Well, I will try to see, these children are not really of the age that the law says that we give their preferences great weight. These are smaller children. I generally keep it very general, like, well, how often do you see dad now? How do you feel about that? And maybe just, Do you want to spend more time? I ask generally what are the good things you like about each parent? Are there bad things that you don’t like about each parent? But I will take suggestions.

“Mr. Carbo: I would think that a man of your wisdom that’s been doing this such a long time that you know the proper questions to ask, your honor, I am comfortable with any question that you would ask my children.

“Ms. Bell: On that point, we can agree.” (N.T., custody trial, 9/10/08, at 100-101.)

Not only did Father state that he deferred to the wisdom of the court, but the transcript of trial is littered with Father’s comments and requests asking the court to speak with the children and indicating no objection to not being present when the event occurred. Moreover, when this court balked at conversing with the youngest child, who was just short of 5 years old, Father was so sure of what the child would say that he requested an exception be made. The testimony was as follows:

“The Court: All right. If there is nothing else, I will wait back here for the children to arrive. I will speak with them one at a time beginning with Mackenzie then Madelyn and Cassidy. Cassidy is really young. I don’t know.

“Mr. Carbo: Yes, your honor. I would ask that you make an exception. She is 92 days shy of 5 years, but she is a very intelligent little girl, very mature because she has two older sisters.

“The Court: I will talk to her, and generally, I do find that it isn’t all that helpful to me. Sometimes, but I think it makes them feel better that they at least had a chance to talk to the judge that is going to make these decisions, and I let them know I just I ask them, the last thing, is there anything else you wanted, something you want to tell me? It is your chance to tell me.

“Mr. Carbo: I think Cassidy would be very upset if she didn’t have a chance.” (N.T., custody trial, 9/10/08, at 10.)

Additionally, a court reporter was present during the questioning and transcribed the testimony of all of the children. Father and Mother’s counsel each received a copy thereof, so Father was well aware of the questions asked by the court and the answers given by his children. This court illuminates the principle and calls in to doubt Father’s motives, as he only expressed displeasure with the format of questioning when this court rendered its ruling and Father did not receive much more time. As this court asked for input from the parties regarding the questions asked the children, Father at no point during the trial objected to questioning in chambers without Father and Mother’s counsel present, and as this court recorded the testimony and Father received a copy of said testimony, Father’s contention that this court violated a rule inapplicable to this case has no merit.

Father next objects to the children being driven to court by their sister, Jessica Carbo. This issue has no bearing on this case whatsoever. Moreover, although Father knew that the children were being driven to court by their sister, Father posed no objection nor was it even mentioned during the trial except to note the fact that Jessica Carbo would be transporting the children. There has never been any indication of impropriety nor has either party noted that Jessica Carbo was sharing the salacious details of the case with the children or coaching them on what to say. As Father appeals the order of September 15, and no objection was raised to this transportation at trial, the issue is irrelevant, frivolous, and without merit.

Father’s ninth issue states that the court erred when it stopped him “from hearing testimony on Mrs. Nancy Alman and Flunter Myu.” Flowever, this court fails to see anything in the notes of testimony to support this contention. At no point in the custody trial of September 10, 2008 did Father attempt to call either of these witnesses and this court prevented him from doing so. Further, nowhere in the testimony is the name Hunter Myu even mentioned. In regard to Mrs. Alman, Trooper Dziedzic testified briefly about an altercation that occurred at Mrs. Alman’s house and Mr. Carfango also noted that same incident. Nonetheless, nowhere did the court prevent Mr. Carbo from hearing testimony from either of these witnesses. In fact, the court allowed the testimony of Mr. Carfango on the incident despite defense counsel’s objection. The following transpired at the custody trial:

“Ms. Bell: Your honor, based on what I am considering Mr. Carbo’s offer of proof, if the purpose of this witness is to testify that he was in the car and he witnessed a disagreement or fight between Mr. Carbo and the baby sitter’s son, which occurred many, many months before the parties separated, I object. It is not relevant to why we are here today. These people don’t baby-sit the children because of this incident, and it’s before the court.

“Mr. Carbo: Well, Mr. Carfango can testify to the things that happened that day prior to the incident of Ms. Alman’s son that it lets the court know that I am telling you the truth of what happened, the impropemess that this woman had left my children alone, that Ms. Carbo had put them in a bad setting at that time.

“The Court: All right. Well, we will hear briefly.” (N.T., custody trial, 9/10/08, at 11.)

Thus, as this issue is devoid of truth and finds no support in the record, it lacks all merit.

Father last argues that this court erred when it did not allow him to “give testimony on attomy (sic) John A. Hoffert, Esq.” However, this issue too lacks merit as it finds no support in the record. The following testimony occurred at the custody trial when Mr. Carbo was conducting his direct examination of Ms. Mildred Carbo:

“Mr. Carbo: I would to recall I would like for you to recall an event that happened in Mr. Hoffert’s office on August 6,2006, shortly after a custody arrangement was entered in July 25,2006. Can you recall the conversation between Mr. Hoffert, you, and I, who was representing me in my custody case?

“Ms. Bell: Objection.

“The Court: Sustained. That’s not relevant.

“Mr. Carbo: Well, your honor, I think that it is if I could make a point, I was on the on the 25th on our original custody, I was told that I could come back within the 90-day period to redo the custody within the 90 days, and I was actually that I had to go to a counselor, that I had to give custody to Ms. Carbo, and go to a counselor, and then within that 90 days, I could if I was within that 90-day period, I could come back and redo my custody. And I was I was there within a week-and-a-half to redo my custody, and I would like the court to hear Ms. Carbo’s testimony on that.

“Ms Bell: You honor, I will stipulate. It is a matter of record that a temporary order was entered at the very first custody conference and that gave either party the right to relist before the custody conciliation conference officer within 90 days and, in fact, Mr. Carbo made a request to relist. We did, in fact, go back in front of the custody master at which point a recommended order was entered. I will stipulate to that. That happened.

“The Court: Well

“Mr. Carbo: Well, we didn’t relist and

“The Court: Well, Mr. Carbo, this is a custody trial. I have to decide based on the situation that it is now who is to have primary custody of the children, what type of visitation for the non-custodial parent, and a conversation between you and your attorney and overheard by your mother regarding procedures that happened in 2006 has absolutely no relevance to the issue of custody today. So, Ms. Carbo, you may sit down.” (N.T., custody trial, 9/10/08, at 14-16.)

Testimony referencing events that occurred in 2006 were not relevant to the current issue of the “best interests of the child.” This court had no choice but to disallow testimony on an extraneous topic and to move on to the pertinent issues regarding the parties’ three small children in the interest of judicial economy and most importantly relevancy.

After a fair and thorough review of the testimony this court finds that the current order presents the parties with an arrangement most beneficial to the children and indeed was the arrangement that was in their best interest. This court highlights that the parties’ three young children, none older than 8 years of age, have been residing primarily with Mother in the martial residence, while still maintaining a loving and continued relationship with Father. The Superior Court “has noted the importance to a child’s development of a stable relationship with an established parental figure and a known physical environment.Pamela J. K. v. Roger D. J., 277 Pa. Super. 579, 589, 419 A.2d 1301, 1307 (1980) (emphasis added); see also, Witmayer v. Witmayer, 320 Pa. Super. 372, 382, 467 A.2d 371, 382 (1983) (“In making its award the lower court properly recognized that continuity and stability are important elements in a young child’s emotional development.”). We further note that none of Father’s exceptions pertain to the best interest standard but instead focus on incidental and inapplicable nuances.

For all of the reasons set forth above, this court respectfully requests that Father’s appeal be denied, and that the current order of September 15, 2008 remain in effect.


source: Caselaw Access Project

author: FARINA, P.J.,

license: Public Domain

text:
    Painter v. Dorozynsky
    C.P. of Lancaster County,
    no. CI-98-04977.

      Samuel F. Kafrissen, for plaintiff.

      Steven D. Costello and John F.X. Monaghan, for defendants.

      August 22, 2008
   FARINA, P.J.,

Presently before the court is defendants’ petition to abate action. Defendants Leo Dorozynsky M.D. and St. Joseph Hospital contend that the lawsuit of Carolee Painter, administratrix of the estate of Lisa Winter v. Leo C. Dorozynsky M. D. and St. Joseph Hospital, should be abated pursuant to 20 Pa.C.S. §3375, which states:

“If a plaintiff or petitioner in any action or proceeding now pending or hereafter brought dies and a personal representative is not appointed within one year after a suggestion of such death is filed in the action or proceeding, any defendant or respondent may petition the court to abate the action as to the cause of action of the decedent. Copies of the petition shall be served upon the executor named in the will, if known to the defendant, and otherwise upon all known next of kin entitled to letters of administration. The court shall abate the action as to the cause of action of the decedent if the delay in taking out letters is not reasonably explained.”

The named plaintiff in this case is Carolee Painter, the administratrix of the estate of Lisa Winter. Painter instituted this lawsuit on behalf of Winter alleging that Winter was negligently discharged from St. Joseph Hospital on April 29, 1996 after a psychological evaluation, and that as a result of this negligent discharge Winter committed suicide three days later on May 2, 1996. Carolee Painter died on April 22,2007, and St. Joseph Hospital’s counsel filed a suggestion of death on May 17, 2007. Over one year has passed since the suggestion of death was filed, and in that time no personal representative for Lisa Winter’s estate was appointed or named. As such, defendants assert that the court must abate the action if the plaintiff fails to present a reasonable explanation for the delay in taking out letters of administration. The defendants filed a petition to abate action in May of2008 and served a copy of such petition on plaintiff’s counsel.

Plaintiff contends that the petition to abate action should not be granted for two reasons. First, plaintiff argues that 20 Pa.C.S. §3375 only applies when a personal representative is not appointed within one year after the defendant files a suggestion of death relating to the victim of the tort, not where a personal representative of a decedent’s estate dies. In this case, then, plaintiff asserts that section 3375 was satisfied once and for all when a personal representative was appointed within one year of Lisa Winter’s death. Second, plaintiff argues that the petition should be denied because defendants failed to comply with the service requirements set forth in section 3375. Either Lisa Winter’s husband, Warren Winter, and/or her daughters, Katie and Chelsea, should have been served with a copy of petitioning defendants’ petition to abate. Defendants have long known of the existence of these three relatives of the victim.

I agree with plaintiff’s second argument regarding improper service. Section 3375 clearly states that “copies of the petition shall be served upon the executor named in the will, if known to the defendant, and otherwise upon all known next of kin entitled to letters of administration.” A drastic remedy such as abatement of an action requires strict compliance with the statute. Defendants’ service of process upon plaintiff’s counsel does not satisfy the statute’s demand that all known next of kin entitled to letters of administration be served. Defendant did recently attempt to serve Lisa Winter’s husband, Warren Winter, by mail at his last known address, and this letter was returned to counsel marked “unable to forward.” However, counsel took no additional measures to locate Warren Winter. Further, counsel made no attempt to contact Lisa Winter’s daughters, Katie and Chelsea, who are now 21 and 15 years old, respectively. Defendants’ limited efforts to serve all known next of kin were inadequate under the statute.

Accordingly, I enter the following:

ORDER

And now August 22, 2008, upon consideration of defendants Leo G. Dorozynsky M.D. and St. Joseph Hospital’s petition to abate action, briefs of the parties and oral arguments, it is hereby ordered and decreed that defendants’ petition to abate action is denied.


author: SOLOMON, J.,

text:
    Glasser v. Seven Springs Mountain Resort
    C.P. of Fayette County,
    no. 2737 of 2006, G.D.

      Arthur Cutruzzula and Walter J. Nalducci, for plaintiff.

      John R. Merinar Jr., for defendant.
    November 7, 2008
   SOLOMON, J.,

Before the court is a motion for summary judgment filed by defendant, Seven Springs Mountain Resort t/d/b/a Seven Springs Farm Inc., a Pennsylvania business corporation.

STATEMENT OF THE CASE

Plaintiff, Bradley Glasser, filed suit against defendant alleging that he had incurred injuries in a skiing accident that occurred on the property of defendant as the result of the negligence of defendant. In its answer to the complaint, defendant denied all material averments, raised a new matter, asserting as affirmative defenses that plaintiff had assumed the risk of the collision, that plaintiff had released defendant from any liability, and that plaintiff’s claims are barred by the Pennsylvania Comparative Negligence Act and the Pennsylvania Skier’s Responsibility Act. Thereafter, defendant filed the instant motion for summary judgment.

DISCUSSION

Summary judgment may be entered only in those cases where the record clearly demonstrates that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Dean v. PennDOT, 561 Pa. 503, 507, 751 A.2d 1130, 1132 (2000). The record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Id. Where the facts are so clear that reasonable minds cannot differ, summary judgment is appropriate. Cochran v. GAF Corp., 542 Pa. 210, 215, 666 A.2d 245, 248 (1995).

In Hughes v. Seven Springs Farm Inc., 563 Pa. 501, 762 A.2d 339 (2000), the Supreme Court of Pennsylvania analyzed the doctrine of assumption of the risk and its relation to the Pennsylvania Skier’s Responsibility Act. The Supreme Court found that “[a]s a general rule, the doctrine of assumption of the risk [. . .] has been supplanted by the Pennsylvania General Assembly’s adoption of a system of recovery based on comparative fault in the Comparative Negligence Act.” Id. at 504, 762 A.2d at 341. However, the Supreme Court found that the Pennsylvania Skier’s Responsibility Act “specifically preserves the assumption of the risk doctrine in cases involving downhill skiing injuries.” Id.; see also, 42 Pa.C.S. §7102(c). In regards to cases stemming from amusement facility injuries, the cases “have tended to speak in terms of whether the injury suffered resulted from a risk ‘inherent’ in the activity in question; if it did, then the defendant was under no duty to the plaintiff, and the suit could not go forward.” Hughes, at 508, 762 A.2d at 343.

The Hughes court also found that granting of judgment n.o.v. is proper “in cases involving places of amusement where the plaintiff alleges no more than injury caused by a risk inherent in the activity in question.” Id. at 509, 762 A.2d at 343. Specifically, “[ojnly when the plaintiff introduces adequate evidence that the amusement facility in which he was injured deviated in some relevant respect from established custom will it be proper for an ‘inherent-risk’ case to go to the jury.” Id.

With regard to downhill skiing injuries, the Supreme Court then set forth a two-part inquiry. Id. First, the court must determine whether the plaintiff was engaged in the sport of downhill skiing at the time of his injury. Id. Here, that determination is made easy since plaintiff admits that he was engaged in the sport of downhill skiing at the time of his injury. Plaintiff’s deposition, p. 11. Thus, since the answer to the first inquiry is in the affirmative, the second determination that the court must make is whether the risk is one of the “inherent risks” of downhill skiing, which the plaintiff must be deemed to have assumed under the Skier’s Responsibility Act. Id. If so, then summary judgment is appropriate because, as a matter of law, the plaintiff cannot recover for his injuries. Id.

Ski facilities have no duty to protect patrons from injuries suffered which arise from a risk that is common, frequent and expected within the sport. Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546 (1978). Here, plaintiff contends that defendant was negligent in disguising a snowmaking pole to appear as though it had protection. However, plaintiff fails to allege how wrapping this pole with a thin protection was in fact negligent.

From the record, it is clear that plaintiff suffered a skiing injury that is “common, frequent and expected” within the sport of downhill skiing, and assumed a risk that was inherent in the sport. Plaintiff skied several times each year, including the slopes of defendant’s ski facility. Plaintiff’s deposition, pp. 7, 16. At the time of the accident, plaintiff had over a decade of skiing experience, and describes himself as an intermediate level skier. Id. at 8, 18. After skiing for several hours on the day in question, plaintiff ascended to the Tyrol/Nastar slope. Id. at 12-13. It was during this downhill run that plaintiff lost control of his person and collided with a snowmaking pole. Id.

In his deposition, plaintiff admits that he “knew that people do get hurt” in the sport of skiing. Id. at 23. Further, on the day in question, plaintiff admits that he observed ice on other ski slopes and that ice is “the natural thing that occurs.” Id. at 14-15. What plaintiff fails to allege, or support in the record, is that a collision with a snowmaking pole is not an inherent risk of the sport of downhill skiing. To the contrary, plaintiff admits to seeing the snowmaking system on defendant’s property, and on other ski facilities. Id. at 15-16,40-41. A snowmaking pole is a “common, frequent and expected” obstacle on a downhill skiing slope.

Even accepting as true all of the pleadings of plaintiff, and viewing the record in a light most favorable to him, he has only alleged injury caused by a risk inherent in the activity in question. Pursuant to the Pennsylvania Skier’s Responsibility Act, 42 Pa.C.S. §7102(c), plaintiff assumed the risk of losing control while he was skiing and consequently colliding with a snowmaking pole. Expressly, the possibility of a collision with a snowmaking pole is a risk inherent to the sport of downhill skiing.

Further, prior to entering the ski facility, plaintiff signed a release agreement releasing defendant from all liability for injury upon the premises. See rental agreement.

In reaching our conclusion that plaintiff assumed the risk of the skiing injury he suffered, and that he signed a release agreement, we find that the facts are so that reasonable minds could not differ and that, therefore, the granting of defendant’s request for summary judgment is appropriate.

Wherefore, we will enter the following order.

ORDER

And now, November 7, 2008, upon consideration of the record, it is hereby ordered and decreed that the motion of defendant, Seven Springs Mountain Resort t/d/b/a Seven Springs Farm Inc., a Pennsylvania business corporation, for summary judgment, is granted.


author: YATRON, J.,

text:
    Commonwealth v. Guzman

      C.P. of Berks County,
    no. CP-06-CR-0003403-2008.

      Matthew G. Eltringham, for Commonwealth.

      James M. Polyak, for defendant.
    October 28, 2008
   YATRON, J.,

This matter is before the court on defendant’s omnibus pretrial motion in the nature of a motion to suppress physical evidence and statements allegedly made by the defendant. Hearing was held on October 3,2008, and counsel for the parties filed timely memoranda including proposed findings of fact, conclusions of law, and legal authority therefor. On October 23, 2008, at the request of both counsel, the court entertained further oral argument, and the matter is now ripe for disposition.

What follows are findings of fact and conclusions of law in disposition of defendant’s motion.

FINDINGS OF FACT

(1) On or about June 18,2008, officers of the Reading Police Department were conducting surveillance of an apartment building located at 16 South Tenth Street in the City of Reading.

(2) The purpose of the surveillance was to locate one Paul Talley.

(3) At the hearing on October 3,2008, officers testified that Paul Talley was “wanted” for attempted homicide.

(4) No testimony was offered as to the existence of a warrant for Paul Talley’s arrest, nor did the officers indicate that they were in possession of such a warrant.

(5) No warrant for the arrest of Paul Talley was presented at the October 3 hearing.

(6) On June 11,2008, officers conducting surveillance in the vicinity of 16 South Tenth Street saw Paul Talley in the company of a number of other individuals, including his brother, Dushane, and one Javin Richardson, who was known on the street as “Jux.”

(7) Previously, officers had frequently seen Paul Talley in the company of his brother, Dushane.

(8) The officers conducting surveillance on June 18 observed Dushane Talley, Jux, and another individual who was unknown to them, enter the premises at 16 South Tenth Street.

(9) Shortly after the entrance, officers observed an individual who was unknown to them leave the premises.

(10) This unknown individual was later identified as Demitri Guzman, defendant herein.

(11) Officers conducting the June 18 surveillance did not observe Paul Talley in the area.

(12) The surveillance officers contacted Criminal Investigator Pasquale Leporache, a 15-year veteran of the Reading Police Department and 13-year veteran of the vice division and informed him of the observation of Dushane Talley, Jux and the unknown individual.

(13) Cl Leporache proceeded to 16 S outh Tenth Street in order to attempt to locate Paul Talley.

(14) Upon arriving at that location, Cl Leporache assigned two officers, including Officer Darren Smith to go to the rear of the premises in order to contain any individuals who might attempt to flee through the back door.

(15) It was Cl Leporache’s intent to conduct a “knock and talk” which would consist of knocking on the door and asking the occupants of the premises questions relating to the whereabouts of Paul Talley.

(16) Upon going to the front door of the premises, Cl Leporache and Cl Ed Heim observed that there were three mailboxes indicating the existence of three apartments in the building.

(17) The front door to the building led into a vestibule, and the front door was locked.

(18) Cl Heim pressed the doorbell button for the first floor apartment where it was believed the individuals who were previously observed under surveillance had gone.

(19) Someone from within the premises responded to the doorbell by inquiring who was outside.

(20) The police officers did not respond to that inquiry.

(21) Shortly thereafter, Cl Leporache was looking into the building through the glass panel contained in the front door and saw Dushane Talley and Jux exit the first floor apartment.

(22) Investigator Leporache saw a clear plastic bag containing what he recognized as marijuana in Jux’s possession and heard one of the individuals exclaim “oh shit.”

(23) Both individuals then quickly returned to the apartment and closed the door behind them.

(24) After making this observation, Cl Leporache forced the vestibule door and went to the door for the first floor apartment.

(25) Cl Leporache began loudly knocking on the door and declaring the presence of police officers, but no one responded to his knocking.

(26) When Cl Leporache entered the vestibule and went to the door of the first floor apartment, he smelled the odor of burning marijuana which he determined to be coming from within the apartment.

(27) Cl Leporache learned through a radio transmission that two individuals had run out the back door of the premises and upon seeing police officers barring their escape, the individuals ran back toward the rear door of the premises.

(28) Cl Leporache continued knocking and demanding entry, and did so until the door was ultimately opened from the inside by Officer Darren Smith, one of the officers Cl Leporache had assigned to the rear of the premises.

(29) Officer Smith recognized both Dushane Talley and lux when they exited the rear of the premises, having had official contact with both of those individuals on prior occasions.

(30) Officer Smith gave chase, and was able to apprehend Dushane Talley before he was able to get back into the building, and handcuffed him and took him into custody.

(31) Jux, however, was able to re-enter the premises and lock the door behind him.

(32) Officer Smith climbed part way up a fire escape to attempt to see into the apartment and also to ascertain if there was any activity with regard to the upstairs apartments in the building.

(33) After a short period of time, Jux exited through the rear door and Officer Smith was able to apprehend him and take him into custody.

(34) When Officer Smith apprehended both Dushane Talley and Jux at the rear of the premises, he detected the odor of marijuana on the two suspects, and could also smell marijuana from within the building.

(35) With both Dushane Talley and Jux in custody and handcuffed outside the building, Officer Smith went through the rear door, to the front door of the apartment and opened it permitting Cl Leporache and other officers to enter.

(36) Officer Smith indicated he entered the apartment in order to admit the officers from the front of the apartment into its interior, to ascertain if Paul Talley was inside the apartment, and because due to the loud knocking he had heard, he indicated he believed that someone may have been attempting to break into the second floor apartment.

(37) Officer Smith was not aware of the fact that prior to the entry through the vestibule, Cl Leporache had observed Jux in possession of the bag of marijuana.

(38) Once inside the apartment, the officers cleared each room to ensure that no individuals were present, and none were found.

(39) On the floor inside the apartment, however, Cl Leporache observed the bag of marijuana previously in the possession of Jux, various drug paraphernalia including implements used in dividing and packaging cocaine and marijuana, and .32 caliber cartridges.

(40) Cl Leporache then left the premises and proceeded to the office of MDJ Michael Leonardziak in order to procure a search warrant for the premises.

(41) The search warrant was admitted into evidence and is attached hereto as exhibit 1 [not published herein].

(42) The affidavit for search warrant contains no references to the hunt for Paul Talley, nor does it mention the existence of any arrest warrant for him.

(43) While Cl Leporache was procuring the search warrant, the individual who had previously been observed leaving the premises, defendant Guzman, returned.

(44) The defendant indicated to the officers that he was the tenant of the apartment.

(45) Upon Cl Leporache’s return, he Mirandized all three individuals, at which time both Dushane Talley and Jux denied living in the apartment and having anything to do with the contraband located there.

(46) The search also turned up a .32 caliber handgun, which was subsequently determined to be inoperable.

(47) The defendant indicated that he had found the handgun in the alley the night before, and that it did not work and that he was unable to properly reassemble it.

(48) When Officer Smith made the initial police entry into the rear of the apartment, the officers possessed no search warrant, nor did they have the consent of the occupant, which was subsequently determined to, in fact, be defendant Guzman.

CONCLUSIONS OF LAW

Even though there was a search warrant procured for the search of defendant’s first floor apartment at 16 South Tenth Street, it is clear from the testimony, as well as from the warrant itself, that the observations which would supply probable cause for the search of the premises in relation to possession of controlled substances, possession with intent to deliver controlled substances, and delivery of controlled substances were virtually all made as a result of Officer Smith’s warrantless entry into the apartment and the events that followed.

Further, while the defense contends that Cl Leporache’s forced entry into the locked vestibule also constituted an illegal entry, there is virtually nothing which flows from that entry that contributes to the probable cause affidavit in the search warrant. Clearly, Cl Leporache’s observation of Jux with the bag of marijuana was made from outside prior to the entiy, and the only observation that Cl Leporache made after entering the vestibule that is of any significance is his detection of the odor of burnt marijuana coming from the apartment. This, in and of itself, would not justify the issuance of the warrant.

Places of residence, under both our federal and state jurisprudence, are deemed entitled to special protection from intrusion. See Commonwealth v. Santiago, 736 A.2d 624 (Pa. Super. 1999). Such intrusion may occur only pursuant to a proper warrant establishing probable cause for search, the consent of the occupant, or in certain very narrowly defined exigent circumstances. See Commonwealth v. Roland, 535 Pa. 595, 599, 637 A.2d 269, 270 (1994) (citing Payton v. New York, 445 U.S. 573, 583-90, 100 S.Ct. 1371, 1378-82, 63 L.Ed.2d 639, 648-53 (1980)). In the case at bar, it is both clear from the record and conceded by the Commonwealth that entry into the defendant’s residence was without a warrant and without the defendant’s consent. Therefore, the results of the search must be suppressed unless from all the facts and circumstances it can be determined that sufficiently exigent circumstances existed to justify the police intrusion.

The police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests. Commonwealth v. Roland, 535 Pa. 595, 599, 637 A.2d 269, 270-71 (1994) (quoting Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732, 743 (1984)). However, our jurisprudence recognizes that situations exist in which delay to seek a warrant will endanger life, limb or overriding law enforcement interests. In these cases, our strong preference for use of a warrant must give way to an urgent need for immediate action. Santiago, 736 A.2d at 631 (quoting Commonwealth v. Govens, 429 Pa. Super. 464, 480, 632 A.2d 1316, 1323 (1993)). In order to determine when the police possess an exigency justifying a warrantless search of a residence, a court should balance the following factors against one another:

“(1) the gravity of the offense, (2) whether the suspect is reasonably believed to be armed, (3) whether there is above and beyond a clear showing of probable cause, (4) whether there is strong reason to believe that the suspect is within the premises being entered, (5) whether there is a likelihood that the suspect will escape if not swiftly apprehended, (6) whether the entry was peaceable, and (7) the time of the entry, i.e., whether it was made at night. These factors are to be balanced against one another in determining whether the warrantless intrusion was justified. Other factors may also be taken into account, such as whether there is hot pursuit of a fleeing felon, a likelihood that evidence will be destroyed if police take the time to obtain a warrant, or danger to police or other persons inside or outside the dwelling.” See Commonwealth v. Roland, 535 Pa. 595, 599, 637 A.2d 269, 270-71 (1994).

After balancing these factors, this court holds that there was no exigency justifying Officer Smith’s warrantless entry into the defendant’s apartment. Officer Smith had no reason to believe that anyone was in the apartment at the time of his entrance. Therefore, there was no danger that evidence was being destroyed or that anyone posed a threat to him or the community. However, at the suppression hearing, Officer Smith testified that he entered the apartment to look for Paul Talley, open the front door for the other officers, and to investigate a loud banging noise.

While there was testimony that Paul Talley was wanted for attempted murder, there was neither testimony nor evidence that the officers possessed an arrest warrant at the time of this incident. Furthermore, the officers testified that they went to the residence to engage in a knock and talk to ascertain Paul Talley’s whereabouts. Therefore, they did not know if Paul Talley was even present in the apartment that afternoon. There was no evidence that Paul Talley lived in the apartment or had ever been seen inside. Rather, there was only evidence that he was, on one prior occasion, seen in the vicinity of the outside of the building. The speculative presence of an individual who is wanted for murder, along with the absence of an arrest warrant justifying an arrest, does not demonstrate the existence of an imminent danger to the police or the community justifying a warrantless intrusion.

The loud banging noise also fails to provide an exigency. Officer Smith testified that he thought someone was trying to break into the second floor apartment. However, he admits that he was not sure if there was anyone else present in the apartment or whether the apartment even had a second floor. Therefore, his entrance into the first floor apartment to investigate the banging, without more information, was speculative at best, and does not justify his warrantless entry into the residence. It is also important to reiterate that the banging was actually coming from Cl Leporace’s knocking on the door. Our courts have acknowledged that the police cannot base a warrantless entry on an exigency of their own creation. See Commonwealth v. Melendez, 544 Pa. 323, 330, 676 A.2d 226, 229 (1996). For these reasons, the loud banging does not qualify as an exigency justifying Officer Smith’s entry into the apartment.

It is important to remember that “all decisions made pursuant to the exigent circumstances exception must be made cautiously, for it is an exception which by its nature can very easily swallow the rule unless applied in only restricted circumstances.” Commonwealth v. English, 839 A.2d 1136, 1141 (Pa. Super. 2003). (citations omitted) The events of the afternoon in question do not provide Officer Smith with a recognized exigency which would allow him to forgo obtaining a search warrant. Therefore, based on the above, the defendant’s motion to suppress evidence and motion to suppress statements is granted.

      . “[P]robable cause alone will not support a warrantless search or arrest in a residence... unless some exception to the warrant requirement is also present. It is well settled that, absent consent or exigent circumstances, private homes may not be constitutionally entered to conduct a search or to effectuate an arrest without a warrant, even where probable cause exists. Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries.” Id. at 631 (quoting Commonwealth v. Govens, 429 Pa. Super. 464, 479-80, 632 A.2d 1316, 1322 (1993) (en banc).


author: BUCCI, J,

text:
    Commonwealth v. Wadelington

      C.P. of Berks County,
    no. CP-06-CR-5887-2004.

      Alisa R. Hobart, assistant district attorney, for Commonwealth.

      Kenneth W. Kelecic, for defendant.
    November 19, 2008
   BUCCI, J,

PROCEDURAL HISTORY

On February 8, 2005, this court sentenced Tracey Wadelington (appellant) to one year of probation on the charge of false identification to law enforcement. Appellant’s probation was ordered to commence at the expiration of the sentence imposed at docket 6227/2007. On December 6, 2007, following a Gagnon II hearing, appellant’s probation was revoked for violation of the conditions of his supervision. Appellant was resentenced to serve 92 days to 12 months in Berks County Prison and credited with 92 days time served. Appellant was paroled from Berks County Prison on or about December 19,2007. On April 9, 2008, appellant appeared before a hearing master for a second Gagnon II hearing. The hearing master found appellant in violation of the conditions of his parole supervision and he recommended that the appellant be recommitted to the Berks County Prison to serve out the remainder of his sentence. Appellant, then, appealed the master’s recommendation to this court seeking credit for 141 days time served on the basis that he was a resident of the YMCA Bridge House from April 11,2007 to August 31,2007. Following a hearing before this court on May 28,2008, the court denied appellant’s request for the credit for time served while he was a resident of the YMCA Bridge House. On June 25,2008, appellant filed a notice of appeal to Superior Court. On July 14, 2008, this court ordered the defendant to file a concise statement of matters complained of on appeal pursuant to Pa.R. A.P. 1925(b). Appellant filed his concise statement on July 28, 2008.

MATTERS COMPLAINED OF ON APPEAL

Appellant’s concise statement reads as follows:

“The sentencing court erred in failing to award appellant credit toward his sentence for the time that he spent in a treatment facility (141 days) as required by the Adult Probation Office as part of the appellant’s ‘ordered probation.’”

In essence appellant challenges the discretionary aspects of his sentence because the court failed to award him credit for time served while he was a resident of the YMCA Bridge House treatment facility.

DISCUSSION

Appellant, in essence, argues that the court abused its discretion when it failed to give him credit for time served toward his sentence of incarceration for the time that he was a resident at the YMCA Bridge House. Appellant argues that as a condition of his probation/parole, he was required by his probation officer to reside at the YMCA Bridge House. Notes of colloquy, Gagnon II hearing, 05/28/08, at 2 (N.C.). Appellant argues that his residency at the YMCA Bridge House was tantamount to incarceration. Appellant argues that his freedom was restricted because he was required to sign in and sign out at the Bridge House, and he was allowed to leave for no more than four hours at a time.

An appellant has no absolute right to appellate review of his sentence. 42 Pa.C.S. §9781; Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002). Rather, the appellant may have his sentence reviewed on appeal only if the Superior Court determines that, “there is a substantial question that this sentence ... is not appropriate under the Sentencing Code.” Commonwealth v. Bromley, 862 A.2d 598, 604 (Pa. Super. 2004); Mouzon, 571 Pa. at 425, 812 A.2d at 627. For a substantial question to exist, the appellant must state reasons that create doubt that this court sentenced the appellant without properly considering the sentencing guidelines or the norms underlying the sentencing process. See Commonwealth v. Koehler, 558 Pa. 334, 737 A.2d 225 (1999).

In the instant case, appellant’s sole argument is that the court erred in refusing to give him credit for time served for the time that he was a resident in the YMCA Bridge House. However, the court believes that the appellant fails to present a substantial question for review and therefore, this appeal should be dismissed.

Nevertheless, assuming arguendo, a substantial question has been raised by appellant, the judgment of sentence should still be affirmed.

A sentence will not be overturned by an appellate court unless the record shows a manifest abuse of discretion, which is more than mere error in judgment. Commonwealth v. Redman, 864 A.2d 566, 569 (Pa. Super. 2004), citing Commonwealth v. Cunningham, 805 A.2d 566 (Pa. Super. 2002). A manifest abuse of discretion may be found only where the record establishes that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias, or ill will, or arrived at a manifestly unreasonable decision. Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999). The decision of the sentencing judge should be given great deference since he or she is in the best position to view the defendant and to evaluate the individual circumstances of the case. Commonwealth v. Walls, 592 Pa. 557, 569-70, 926 A.2d 957, 964-65 (2007).

Whether or not the defendant is entitled to credit for time served is governed by the Sentencing Code 42 Pa.C.S. §9760 which provides in relevant part as follows:

“[Ajfter reviewing the information submitted under section 9737 (relating to report of outstanding charges and sentences) the court shall give credit as follows:

“(1) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed as a result of conduct on which such a charge is based. Credit shall include credit for the time spent in custody prior to trial, during trial, pending sentencing, and pending the resolution of the appeal.” 42 Pa.C.S. §9760.

“The principle underlying [the Sentencing Code] is that a defendant should be given credit for time spent in custody prior to sentencing for a particular offense. See Commonwealth v. Hollawell, 413 Pa. Super. 42, 46, 604 A.2d 723, 725 (1992).

The question here then is whether or not appellant was in custody while he was a resident at the YMCA Bridge House program. In Commonwealth v. Kyle, 582 Pa. 624, 874 A.2d 12 (2005) the Supreme Court recognized that the definition of “custody”, as used in section 9760, may include time spent in an institutional setting such as an inpatient alcohol treatment facility.

Here, it is unclear from the record whether the YMCA Bridge House was such an inpatient treatment facility. Appellant’s counsel, at the colloquy of May 28, 2008, stated on the record that appellant was required to sign in and sign out of the facility and that he was allowed to leave the facility for no more than four hours at a time. N.C. at 3. The record is void of any other information concerning the constraints placed on appellant’s freedom while he was residing at the YMCA Bridge House. Therefore, this court is unable to conclude whether or not the YMCA Bridge House would constitute an institutional setting to meet the test set forth in Commonwealth v. Kyle so as to be considered the equivalent of custody pursuant to section 9760 of the Sentencing Code.

However, assuming arguendo, that the YMCA Bridge House would constitute an inpatient treatment facility that would be tantamount to custody pursuant to section 9760 and assuming that appellant could be given credit for the time that he was a resident at the YMCA Bridge House, nevertheless, “it is within the trial court’s discretion whether to credit time spent in an institutionalized rehabilitation and treatment program as time served ‘in custody.’” Commonwealth v. Fowler, 930 A.2d 586 (Pa. Super. 2007), citing Commonwealth v. Koskey, 571 Pa. 241, 812 A.2d 509 (2002). In Fowler, the Superior Court, cited as controlling authority the Supreme Court’s holding in Commonwealth v. Conahan, 527 Pa. 199, 589 A.2d 1107 (1991). In Conahan, the Supreme Court considered the defendant’s inpatient treatment at a custodial alcohol rehabilitation program as a “sufficient institutional setting” to constitute custody. The Supreme Court in Conahan further stated:

“Clearly our acceptance of this type of inpatient ‘institutional rehabilitation’ no way entitles one to a credit for such rehabilitative commitment as of right. Rather, it is only an expressed approval of credits for such commitment that the sentencing court in its discretion deems to be sufficient.” Id. at 204, 589 A.2d at 1110. (emphasis in original)

In summary, the appellate courts have clearly held that it is within the trial court’s discretion whether or not to award a defendant credit for time served in an institutional rehabilitative setting. Further, our Supreme Court has recently emphasized the following:

“When a court comes to a conclusion through the exercise of its discretion, there is a heavy burden to show that this discretion has been abused.” Commonwealth v. Eichinger, 591 Pa. 1, 30, 915 A.2d 1122, 1140 (2007).

Here, the court exercised its discretion in rejecting appellant’s claim for credit for the time that he was a resident of the YMCA Bridge House. The court placed, on the record, its reasons for rejecting appellant’s request for credit for the time that he was a resident of the YMCA Bridge House. The court noted on the record, as follows:

“Mr. Wadelington, you have a problem. You really have a problem accepting supervision. I can see you have a problem accepting the authority of the court, the authority of your probation officer. I gave you a break in December [referring to appellant’s prior parole violation]. I could have maxed you out then. I gave you time served Mr. Wadelington you had your breaks. You’ve had so many breaks. Your attitude is the problem. Your refusal to realize that we have been bending over backwards with you and you have been failing at every turn. Now you know I think everybody deserves a break. You got two breaks. You got probation the first time instead of going to jail.” N.C. at 13-14.

Therefore, the court had adequate reasons to refuse appellant’s request for credit for time served while a resident of the YMCA Bridge House. It is evident from the record, that the court carefully considered appellant’s personal situation, his failure to comply with the terms and conditions of his probation/parole and his repeated failures to cooperate with his probation officer.

Therefore, the court’s refusal to give appellant credit for the time that he was a resident at the YMCA Bridge House was reasonable, supported by the facts on the record, and demonstrates that the court properly exercised its discretion. Certainly the court’s decision does not constitute an abuse of discretion. See Eichinger, supra.

CONCLUSION

Accordingly, we respectfully request that appellant’s allegation of error be denied that the judgment of sentence be affirmed.

      . 18 Pa.C.S. §4914(a).


author: STALLONE, J.,

text:
    Corbett v. Snyder

      C.P. of Berks County,
    no. 08-6540.

      William A. Slotter, senior deputy attorney general, for Commonwealth.

      Wesley Alvin Snyder, pro se.

      Sydney Snyder, pro se.

      Robin J. Gray, for appellant Kenneth Roger Bennetch and appellee Cheryl Ann Bennetch.

      William D. Schroeder Jr., for appellee Styer.

      Stephen H. Price, for appellee Waid.

      Elizabeth L. Long, for appellant Hepford-Rennie.

      Kathryn L. Simpson, for appellant Musser.

      Robert L. Feliciani III, for appellant Hunt.
    November 18, 2008
   STALLONE, J.,

This action arises out of the marketing and sale of wrap-around mortgages to various residents of Berks County and surrounding areas, through a series of six corporations engaged in the business of providing mortgage brokering, investment brokering and financial/investment counseling services. They consisted of (1) OPFM Inc. t/a Personal Financial Management, (2) Image Masters Inc., (3) Mortgage Assistance Professionals Inc., (4) Mortgage Assistance Professional II Inc., (5) Discovered Treasures Inc. and (6) D.I.V.I.D.I.T. Inc. (collectively known as the OPFM companies) and were operated out of four separate locations: 4700 Perlciomen Avenue, Reading, 4714 Perkiomen Avenue, Reading, 1270 Shelbourne Road, Reading, and 1672 Manheim Pike, Lancaster.

The appellants, Jacquelyn Hepford-Rennie, Julie Ann Musser, Susan Louise Hunt and Kenneth Roger Bennetch, were each employed as mortgage consultants by the OPFM companies.

As mortgage consultants, the appellants’ role was to advise potential customers of the availability of two alternative forms of financing: (1) a conventional loan secured by a mortgage from an outside lending institution, and (2) a conventional loan secured by a mortgage from an outside lending institution, coupled with a wraparound mortgage through Image Masters Inc. If the latter alternative was chosen, the clients, as the appellants preferred to classify them, were told that they would have to obtain a conventional loan in an amount which was in excess of what they had originally needed or intended to borrow. They were further told that the excess funds would be invested for them by Image Masters Inc., thereby entitling them to a reduced interest rate and lower monthly mortgage payments on the Image Masters Inc. wrap-around mortgage, which monthly amount would be their only obligation to pay.

Thereafter, a closing was held on the conventional loan (always before a title insurance company representative), followed by a second closing approximately one week later (usually at the client’s home), at which time the Image Masters Inc. wrap-around mortgage was executed and the client would turn over those excess proceeds that he or she was entitled to from the conventional loan. What the client was not told was how the investments were made, or in what specific companies or funds the investments would be made, as well as the fact that a significant portion of the excess funds would be used to pay various conventional mortgage obligations of existing clients to various conventional lending institutions, together with office overhead and payroll, including substantial compensation in an unknown amount to the sole shareholder and president of the OPFM companies, that being appellee Wesley Alvin Snyder.

The Commonwealth commenced this action on May 23, 2008, by filing a complaint, together with a motion for preliminary injunction. Generally, the Commonwealth alleged in its complaint that the appellants were engaged in the operation of a Ponzi scheme in connection with the sale of these wrap-around mortgages, whereby over 800 consumers were wrongfully induced to mortgage the equity in their homes and to turn over the proceeds in exchange for promises of reduced mortgage interest rates and greater investment returns, resulting in a total collective loss of more than $36,000,000.

The Commonwealth contends, in support of these allegations, that the appellants’ activities were in violation of the following paragraphs of section 201.2(4) of the Pennsylvania Unfair Trade Practices and Consumer Protection Law:

“(ii) Causing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods and services;

“(v) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that he does not have;

“(vii) Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another;

“(xxi) Engaging in any other fraudulent or deceptive conduct creates likelihood of confusion or of misunderstanding.”

In its motion for preliminary injunction, the Commonwealth asked this court to enjoin the appellants from engaging in any further sale of mortgage financing and investment products and to correspondingly freeze all of their assets in an effort to prevent their dissipation, so that they could potentially be used to repay those customers of the OPFM companies who were victimized by this alleged Ponzi scheme.

Following the filing and service of the complaint, appellants Susan Louise Hunt, Kenneth Roger Bennetch and Julie Ann Musser filed preliminary objections to the Commonwealth’s complaint. This court overruled each set of preliminary objections following oral argument held on August 15, 2008.

Thereafter, beginning on August 18, 2008, this court held a seven-day evidentiary hearing on the Commonwealth’s motion for preliminary injunction, at which time we received testimony from numerous witnesses called by the Commonwealth and also the appellants, along with 95 exhibits. At the conclusion of that hearing, we entered the following order:

“And now, August 29, 2008, upon consideration of the motion for a preliminary injunction and after a hearing held pursuant to Pa.R.C.P. 1531(a), this court hereby grants the following preliminary injunctive relief, pending a hearing to determine whether a permanent injunction should be entered in the within matter:

“(A) Defendants Jacquelyn Hepford-Rennie, Julie Ann Musser, Susan Louise Hunt and Kenneth Roger Bennetch are restrained and enjoined from receiving monies and/ or payments for services, as an employee or otherwise, pertaining to the provision of mortgage financing and investment products;

“(B) Defendants Jacquelyn Hepford-Rennie, Julie Ann Musser, Susan Louise Hunt and Kenneth Roger Bennetch are restrained and enjoined from entering into contracts and/or agreements, oral, verbal and/or written, as an employee or otherwise, to provide mortgage financing and investment products.

“(C) Defendants shall, within 20 business days of this order, prepare and serve upon the Commonwealth a financial statement which lists all transfers and assignments of assets and property valued in excess of $2,500 since January 1, 2007, indicating the name and address of the transferee or assignee, the value of the transfer or assignment, and the type and value of any consideration paid to said defendant; and a verification from each said defendant that the information he or she has provided has been provided subject to the penalty of perjuiy under 18 Pa.C.S. §4904. Each such financial statement shall be served upon Commonwealth by facsimile or overnight delivery.

“(D) A hearing to establish whether a permanent injunction should be entered will be held by this court beginning at 9:30 a.m. on April 20, 2009. All discovery shall be completed no later than February 13,2009, with expert reports to be exchanged on February 13,2009 and 21 days thereafter for rebuttal reports. A pre-hearing conference will be at 9:30 a.m. on April 13,2009, before the undersigned.”

All four mortgage consultants (the named appellants herein) each filed a timely appeal from the entry of this order to the Commonwealth Court of Pennsylvania. Thereafter, the appellants filed written motions with this court for stay of its order and the trial proceedings scheduled for April 20,2009, which we denied. The appellants then proceeded to file similar motions with the Commonwealth Court, which also included an alternative request for an expedited appeal. Following oral argument held on October 28, 2008, the Commonwealth Court denied the appellants’ request for a stay, but granted their request for an expedited appeal.

In order to facilitate this expedited appeal, we hereby set forth our brief statement of the reasons for the entry of the order of August 29, 2008.

In order for the Commonwealth to be entitled to preliminary injunctive relief, it was required to establish, by a preponderance of the credible evidence, that (1) such relief is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by money damages; (2) that greater injury would result from refusing injunctive relief than from granting it; (3) that the requested injunctive relief will restore the parties to the status quo that existed immediately prior to the alleged wrongful conduct; (4) that the plaintiff is likely to prevail on the merits; (5) that the injunctive relief sought is reasonably suited to abate the offending activity; and (6) that the issuance of such relief will not adversely affect the public interest. Summit Towne Centre Inc. v. Shoe Show of Rocky Mount Inc., 573 Pa. 637, 828 A.2d 995 (2003).

In making our determination in favor of the Commonwealth, we relied upon the Mortgage Bankers and Brokers and Consumer Equity Protection Act, which defines a mortgage broker as:

“A person who directly or indirectly negotiates or places mortgage loans for others in the primary market for consideration.”

In interpreting this provision, the Commonwealth Court has held that mortgage brokers owe a fiduciary duty to their customers. McGlawn v. Pennsylvania Human Relations Commission, 891 A.2d 757, 769 (Pa. Commw. 2006). It is hornbook law that a fiduciary duty represents a duty of candor, honesty and loyalty toward another and a duty to act in that person’s best interests. Blacks Law Dictionary (8th ed. 2004). This means that a mortgage broker, who is in a position of trust and confidence vis-a-vis his or her client, must act with scrupulous fairness and good faith in dealing with the client and refrain from using his or her position to the client’s disadvantage. Young v. Kaye, 443 Pa. 335, 342, 279 A.2d 759, 763 (1971). This includes advising the client of all relevant facts and circumstances known to the broker. DiPalma v. LaLiberte, 1996 WL 480729, 2 (E.D. Pa. Aug. 16, 1996); see also, Alfaro v. E.F. Hutton & Co. Inc., 606 F. Supp. 1100, 1120 (E.D. Pa. 1985); Merrill Lynch, Pierce, Fenner & Smith v. Perelle, 356 Pa. Super. 165, 183, 514 A.2d 552, 560-61 (1986); Fox Intern. Relations v. Fisery Securities Inc., 490 F. Supp.2d 590, 615 (E.D. Pa. 2007).

Although it was undisputed by the parties that the individual appellants were not required to hold a mortgage brokers license, since they were employees of a licensed broker, namely Wesley Alvin Snyder, they performed all of the functions of licensed mortgage brokers and, therefore, owed the same fiduciary duty to act with the utmost candor, honesty and loyalty, by providing all material information to their clients in order to allow them to make an informed decision as to whether or not to enter into a wrap-around mortgage. However, the record demonstrates, as this court found, that the appellants failed to do so.

More specifically, the record will show that the appellants failed to provide full and complete information as to how or where the investments of the excess funds were to be made; on the contrary, the appellants simply told their clients that Wesley Alvin Snyder (who most of them never met) knew how to invest the funds and that the investments would be made wisely in low risk mutual funds. The clients were never provided with copies of documents that were eventually signed by them at the second closing, except in those few instances where they specifically asked for them. For that matter, the appellants not only did not give their customers the opportunity to review those documents prior to or at the second closing, they did not take the time to read or otherwise review or explain the language in these documents to them, even though the appellants knew that the clients were certainly not sophisticated as to this type of unique transaction. They likewise never advised their clients that the conventional loan and mortgage would remain in effect, despite the second closing, and/or that the wrap-around mortgage would not be recorded in the county recorder of deeds office. Instead, they simply told their clients that the conventional mortgage was a mere formality, which was in all situations patently not true. The clients were likewise never advised that they had the option to ask for language to be inserted in the Image Masters wrap-around mortgage documents requiring that the conventional loan and mortgage be paid off in its entirety upon the completion of their payments on the Image Masters loan, but were simply told that the monthly payment to Image Masters Inc. was the only obligation which they had to pay.

And despite the appellants having been advised as early as May 2007 that payments on the outstanding wrap-around mortgages were not being made in a timely fashion, they never informed any of their prior, current or subsequent clients of that fact at any time thereafter, but instead boldly continued to sell these wrap-around mortgages to unsuspecting new consumers all the way up through September 18, 2007, when the OPFM companies formally filed for bankruptcy, a fact that the appellants knew or should have known was inevitable and would certainly be to their clients’ detriment.

In view of the fiduciary duty imposed upon the appellants under Pennsylvania law, in their capacity as mortgage consultants selling these wrap-around mortgages to customers, and of their failure to meet that duty, we believe that the evidence sufficiently establishes each and every one of the six elements necessary for the entry of preliminary injunctive relief in this case.

And so, for these reasons, we respectfully request the Commonwealth Court to deny the instant appeals.

      . Appellee Wesley Alvin Snyder was the president and sole shareholder of the OPFM companies. His wife, appellee Sydney Snyder, was an employee of the OPFM companies, serving as the human resources manager, and performed a variety of tasks, such as: (1) picking up all of the mail, including incoming mortgage account statements addressed to wrap-around mortgage participants, together with any payments made relative to those wrap-around mortgages; (2) dividing and segregating all mail arriving at the business locations at 4700 Perkiomen Avenue and 1270 Shelbourne Road; (3) delivering all incoming account statements for the wrap-around mortgage participants to the accountant for payment; (4) separating incoming checks for mortgage payments by wrap-around mortgage participants, ensuring that deposit tickets were prepared and monies deposited and delivering the deposit tickets to the accountant; (5) signing checks for each wraparound mortgage participant’s mortgage account for each of the recognized lending institutions; and (6) acting as human resources director for all six corporations.
      The OPFM companies ultimately became the subject of a federal bankruptcy proceeding commenced on September 18, 2007 and Mr. Snyder was subsequently arrested and charged with numerous federal offenses arising out of the sale of these wrap-around mortgages. On November 9, 2007, he entered a plea of guilty to one count of mail fraud in federal court. As part of his plea, he agreed to make “full and complete disclosure of all assets . . . owned ... or under his control ... [and] not to transfer, dispose, sell, cash, assign, encumber or otherwise alienate any asset, including but not limited to any bank account, insurance policy or interest in real estate ....”
      On February 13,2008, Mr. and Mrs. Snyder entered into a surrender of property agreement with the office of the United States Attorney for the Middle District of Pennsylvania and with Lynn Feldman, in her capacity as Chapter 7 trustee for the bankruptcy estates of the OPFM companies. Pursuant to that agreement, Mr. and Mrs. Snyder represented that they had made a full and complete disclosure of their assets, representing the entirety of their real and personal property interests, agreed to transfer all right, title and interest in and to their assets to the bankruptcy estates of Image Masters Inc. and Mortgage Assistance Professionals Inc.
      On July 2, 2008, Mr. Snyder was sentenced to federal prison for a period of no less than 12 years and two months.
      Mr. and Mrs. Snyder did not appear or participate in any proceedings before this court.

      . Appellee Cheryl Ann Bennetch, the wife of appellant Kenneth Roger Bennetch, was employed as an office manager and accountant; appellee Alicia Mary Waid was employed as an accountant; and appellee Amy Lou Styer was employed as a mortgage consultant and financial planner. Styer filed a Chapter 7 bankruptcy proceeding on June 26, 2008 and did not appear or participate in any proceedings before this court.

      . Title 73, 73 P.S. section 201-1 et seq. (Supp. 2008).

      . Appellant Jacquelyn Hepford-Rennie filed an answer to the Commonwealth’s complaint in lieu of preliminary objections.

      . The Commonwealth marked a total of 87 exhibits. Exhibit nos. 1 through 86 were admitted into evidence, while exhibit no. 87 was not. The appellants marked a total of 8 exhibits, none of which were admitted into evidence because they never requested their admission.

      . Title 63, 63 P.S. section 456.302 (Supp. 2008).

      . Moreover, it should be noted that the appellants were compensated only on a commission basis for the sale of these wrap-around mortgages. And those commissions were based solely on the amount of the excess funds turned over to Image Masters Inc. at the second closing. The clients were not given that information by the appellants.


author: MINORA, J,

text:
    Scartelli General Contractors Inc. v. Selective Way Insurance Co.
    C.P. of Lackawanna County,
    no. 2006 CV 4193.

      Melissa Scartelli, for plaintiffs.

      Christian P. Labletta, for defendants.
    September 9, 2008
   MINORA, J,

I. INTRODUCTION

Currently before the court are two matters:

(a) Defendant’s motion for reconsideration of this court’s order of February 27, 2008;

(b) Defendant’s motion for certification for immediate appeal to the Superior Court of said February 27, 2008 order.

By way of background, on June 5, 2005, the Diocese of Scranton retained plaintiff to repair vaulted sidewalks on the exterior of its building located at 300 Wyoming Avenue, Scranton, Pennsylvania.

Plaintiff began this project by removing an old concrete deck exposing the space below. Plaintiff also constructed a trench to collect street water.

After plaintiff removed the concrete deck and constructed a trench designed to protect the property from water damages, rainfall occurred. The trench constructed by plaintiff to protect the property from water damage failed and the property sustained water damage. The diocese incurred $6,697.10 in costs to repair the damages caused by plaintiff’s negligence. Plaintiff admitted its negligence and paid the diocese $6,697.10 for the amount it felt it was legally obligated to pay to avoid litigation, damage to its reputation and preserve its business relationship with a major client.

When the defendant refused to reimburse plaintiff for the loss paid to the diocese, this instant lawsuit ensued.

Preliminary objections to the instant lawsuit resulted in Count IV (plaintiff’s claim under the Uniform Trade Practices and Consumer Protection Law) being dismissed. However, Count I (bad faith), Count II (breach of contract), and Count III (breach of fiduciary duty) were allowed to proceed. The court also dismissed plaintiff’s request for punitive damages contained in Count II and Count III of plaintiff’s complaint. (See Senior Judge Clinton Smith’s order of February 2, 2007.)

The defendant subsequently filed an answer and new matter to plaintiff’s amended complaint and later tried to have the remaining counts dismissed per a motion for judgment on the pleadings.

On February 27,2008 per expanded order, the undersigned denied defendant’s motion for judgment on the pleadings as to Count I bad faith; Count II breach of contract; and Count III breach of fiduciary duty, thus resulting in the instant motion for reconsideration and request for certifying our order of February 27,2008 for immediate appeal to the Superior Court.

Those matters are ripe for disposition as well as a need to instruct counsel once and for all the true grounds for a valid reconsideration.

II. ISSUES

(A) Do any valid grounds exist to have the court reconsider its order of February 27, 2008?

(B) Should the court exercise its discretion and certify its order of February 27,2008 for immediate appeal to the Superior Court?

III. DISCUSSION

A. The Reconsideration Issue

In considering a motion for reconsideration, a trial court is invested with broad discretion as to whether or not it will modify or rescind a prior order entered within 30 days of said motion for reconsideration. 42 Pa.C.S. §5505; PNC Bank N.A. v. Unknown Heirs, 929 A.2d 219 (Pa. Super. 2007).

In addition, reconsideration should be granted sparingly or there will no finality of judgments or orders. The only proper grounds for granting reconsideration are new and material evidence or facts, a change in the controlling law or a clear error in applying the facts or law to the case at hand so that it is necessary to correct a clear error and prevent a manifest injustice from occurring. Mere disagreement with the court’s conclusion is not a basis for reconsideration. See generally, Cox v. Monica, 2008 WL 111991 (M.D. Pa. 2008) and Ellenbogen v. PNC Bank N.A., 731 A.2d 175 (Pa. Super. 1999).

In addition, our colleague, the Honorable Senior Judge Clinton Smith ruled that the pleadings support a cause of action for bad faith, breach of contract and breach of fiduciary duty in his order of February 2, 2007.

We obviously incorporated his order into our analysis and discussion in our expanded order of February 27, 2008 when we again ruled that the pleadings state a potentially viable claim against the defendant and denied its motion for judgment on the pleadings.

While substantive grounds existed for supporting plaintiff’s claims for bad faith, breach of contract and breach of fiduciary duty, we were also mindful that the doctrine of “coordinate jurisdiction” was in play.

The “law of the case” or “coordinate jurisdiction” rule states that “a transferee trial judge may not alter resolution of a legal question previously decided by a transferor trial judge. . . . More simply stated, judges of coordinate jurisdiction should not overrule each other’s decisions.” See Zane v. Friends Hospital, 575 Pa. 236, 243, 836 A.2d 25, 29 (2003). (internal citations omitted)

“The reason for this respect for an equal tribunal’s decision ... is that the coordinate jurisdiction rule is based upon a policy of fostering the finality of pretrial applications in an effort to maintain judicial economy and efficiency.... Furthermore, consistent with the law of the case doctrine, the coordinate jurisdiction rule serves to protect the expectations of the parties, to insure the uniformity of decisions, to maintain consistency in proceedings, to effectuate the administration of justice, and to bring finality to the litigation.” Zane v. Friends Hospital, supra.

The only time the “coordinate jurisdiction” rule is not applied is when there exists any of the same factors necessary to support reconsideration: (1) a change in the controlling law; (2) a substantial change in the facts or evidence or; (3) a clearly erroneous holding that would create a manifest injustice if allowed. See Zane v. Friends Hospital, supra.

Obviously, none of the above factors are at play in the instant case. The only factor at play is the defendant’s disagreement with the court’s decisions of both February 2, 2007 and February 27, 2008. Such a disagreement without meeting the Zane factors noted above cannot, and does not, support a motion for reconsideration and only further frustrates the efficient flow of judicial proceedings, with repeated relitigation of matters previously adjudicated. For these reasons we will, now for the third and final time following preliminary objections and the motion for judgment on the pleadings, deny defendant’s motion for reconsideration. Not only is this the legally correct decision, but to do otherwise would further implicate the February 2, 2007 order of Judge Smith regarding preliminary objections and coordinate jurisdiction as noted above.

B. The Certification for Immediate Appeal to the Superior Court

The court’s order of February 27, 2008 is obviously an “interlocutory order” and not a “final order” (i.e., the order did not put the litigant out of court, terminate the litigation or dispose of the entire case. See Ridgidply Rafters Inc. v. Aetna Casualty and Surety Company, 311 Pa. Super. 549, 457 A.2d 1318 (1983).

The only way such an order could be subject to appellate review in this case is if we as a trial court believe the interlocutory order “involves a controlling question of law as to which there is a substantial ground for difference of opinion and that immediate appeal from the order may materially advance the ultimate termination of the matter.” See 42 Pa.C.S. §702(b) and Commonwealth v. McMurren, 945 A.2d 194, 195 (Pa. Super. 2008).

If we as a trial court were to so certify our order of February 27,2008, then the defendant could potentially pursue a permissive appeal of the interlocutory order under Pa.R.A.P. 1311(b).

However, we are not inclined to exercise our broad discretion so as to certify our order of February 27,2008 as per 42 Pa.C.S. §702(b).We have carefully reviewed the controlling case law as per our prior discussions and our ruling at paragraph (10) of our order ofFebruary 27, 2008 in stating that “the plaintiff has pled a potentially viable cause of action and the defendant has failed to show with the requisite certainty that no recovery is possible under the law. Accordingly, the defendant’s motion for summary judgment is dismissed and denied.”

We see no legally valid reason to certify said order as per 42 Pa.C.S. §702(b) and as such we will deny defendant’s motion for certification for immediate appeal to the Superior Court. (See also, Borough of Mifflinburg v. Heim, 705 A.2d 456 (Pa. Super. 1997).) We view both of these defense motions as disingenuous and devoid of merit.

An order consistent with this memorandum will follow.

ORDER

And now to wit, September 9,2008, upon due consideration of defendant’s motion for reconsideration of this court’s order of February 27,2008 and defendant’s motion for certification for immediate appeal to the Superior Court and the briefs supporting counsels’ respective positions and the arguments of counsel and in accordance with the foregoing memorandum, it is hereby ordered and decreed that:

(1) Defendant’s motion for reconsideration of this court’s order dated February 27, 2008 is dismissed and denied;

(2) Defendant’s motion for certification for immediate appeal to the Superior Court is dismissed and denied.