author: BLACK, J,

text:
    Mannion v. Manor Care Inc.

      Andrew K. Mitnick, for plaintiff.

      John M. Skrocki, for defendants.
    September 26, 2006
   BLACK, J,

— This case arises from the death of Marian L. Flueso while a resident at a nursing home facility owned and operated by one or more of the corporate defendants (Manor Care). The individual defendant, E. Thomas Scarborough III, was the administrator of the facility. The decedent’s daughter, Edith Mannion, as administratrix of her estate, has commenced this action to recover money damages on behalf of the estate and on her own behalf and under the Wrongful Death and Survival Acts, 42 Pa.C.S. §§8301, 8302. The complaint alleges the decedent suffered personal injuries and death as a result of negligence on the part of the defendants.

Before the court are the defendants’ preliminary objections to the complaint. The first objection is that the parties’ dispute must be submitted to arbitration in accordance with the rules of the American Arbitration Association (AAA), pursuant to the arbitration and limitation of liability agreement signed by Ms. Mannion at the time of her mother’s admission into Manor Care. This court granted the parties additional time to conduct discovery and to submit depositions and supplemental briefs on this issue. After reviewing the depositions and briefs, we have concluded, for the reasons stated below, that this preliminary objection must be sustained and the parties’ dispute submitted to arbitration.

The defendants have also moved to strike scandalous and impertinent matter as well as the request for punitive damages. Because of our decision on the arbitration issue, these objections are moot.

FACTS

The pertinent facts, based on the depositions and documents submitted, are as follows: The Manor Care entities are engaged in the ownership and operation of nursing homes and assisted living facilities. On or about January 13, 2004, Ms. Flueso was admitted to the nursing home facility operated by Manor Care at 1265 Cedar Crest Boulevard, Allentown, Lehigh County, Pennsylvania. Ms. Flueso was transferred to the facility from Sacred Heart Hospital, where she had been a patient. At the time of the transfer Ms. Flueso was in a confused state. Her daughter, Edith Mannion, held a power of attorney authorizing her to act on Ms. Flueso’s behalf.

Ms. Mannion made the decision to transfer her mother to Manor Care. She was under great pressure to move her mother from the hospital to a skilled nursing facility very promptly. It was a veiy upsetting experience for her. Only two nursing facilities in the area were within driving distance for her mother’s boyfriend. One of these facilities, however, had a two-year waiting list for new residents. As a result, Ms. Mannion considered Manor Care to be the only suitable option.

She spoke by telephone with Louise DeFranco, the admission director at Manor Care, about the paperwork required for admission. Ms. DeFranco briefly reviewed the documents that would be required and agreed to fax them to Ms. Mannion for her signature. When Ms. Mannion received the faxed paperwork, consisting of 21 pages, she did not have time to read all the documents carefully before signing them and sending them back. Her state of mind at that time was a “blur.”

The documents were all preprinted. They were standard form documents prepared by Manor Care for signature by new residents. Ms. Mannion was aware that the paperwork included an agreement to arbitrate, but she did not understand that this would preclude her from pursuing a claim in court. Ms. DeFranco never explained the arbitration agreement to her. Nor did Ms. DeFranco inform Ms. Mannion that she could make changes in any of the documents.

On January 13, 2004, Ms. Mannion executed and returned the documents that had been faxed over by Ms. DeFranco for her mother’s admission into Manor Care. One of these documents was a six-page agreement entitled “Arbitration and limitation of liability agreement.” The agreement provides in section A for alternative dispute resolution in the event of controversies or claims arising out of or relating to Ms. Flueso’s stay and care at the Manor Care facility. Thus, in section A. 1.1 the agreement states the following:

“(1.1) Any and all claims or controversies between the facility and the resident arising out of or in any way related or connected to the resident’s stay and care at the facility, including, but not limited to, disputes regarding alleged personal injury to the resident caused by improper or inadequate care, allegations of medical malpractice, and interpretation of this agreement, whether arising out of state or federal law, and whether based upon statutory duties, breach of contract, tort theories or other legal theories under Pennsylvania law, including provisions relating to the resident’s rights under Pennsylvania law, or a claim for unpaid nursing home or related charges, shall be submitted to final and binding arbitration. Except as expressly set forth herein, the provisions of the Pennsylvania Uniform Arbitration Act, 42 Pa.C.S. §7301 et seq., shall govern the arbitration. Each party hereby waives its right to file a court action for any matter covered by this agreement.”

Under the agreement discovery is governed by the Pennsylvania Rules of Civil Procedure, but is limited to the sharing of certain enumerated materials. The resident is required to provide the facility with 10 categories of documents. The facility is required to produce to the resident five categories of documents, but these categories do not include statements of staff members unless the statements are sworn statements that the facility will be offering at the arbitration hearing. Additionally, the agreement expressly precludes the deposition of individuals involved in the resident’s care other than treating physicians and experts.

Section B of the agreement limits the liability of each of the parties. This provision, provides in pertinent part, the following:

“Liability for any claim brought by a party to this agreement against the other party, including but not limited to a claim by the facility for unpaid nursing home charges, or a claim by a resident, arising out of the care or treatment received by the resident at the facility, including, without limitation, claims for medical negligence or violation(s) of Pa. Code et seq., arising from simple or gross negligence, shall be limited as follows:

“(1) Net economic damages shall be awardable, including, but not limited to, past and future medical expenses, off-set by any collateral source payments; any outstanding liens shall be satisfied from the damages awarded.

“(2) Noneconomic damages shall be limited to a maximum of $250,000.

“(3) Interest on unpaid nursing home charges shall not be awarded.

“(4) Punitive damages shall not be awarded.”

The final paragraph of the agreement, section D. 1.4, contains a standard severability clause. It provides that in the event any portion of the agreement is determined to be unenforceable or invalid, “the remainder of this arbitration agreement will be deemed to continue to be binding upon the parties hereto in the same manner as if the invalid or unenforceable provision were not a part of the arbitration agreement.”

Following her admission to Manor Care on January 13, 2004, Ms. Flueso remained a resident of the facility until her death on June 28,2005. Ms. Mannion has been appointed as administratrix of her mother’s estate. In her complaint she alleges that Manor Care failed to provide adequate nursing care, fraudulently documented the care provided, and grossly understaffed the facility.

DISCUSSION

Under the terms of the agreement all disputes between the parties, including any personal injury claims arising from care provided at the Manor Care facility, are to be resolved by arbitration pursuant to the Pennsylvania Uniform Arbitration Act, 42 Pa.C.S. §7301 et seq. This Act provides:

“Compelling arbitration. — On application to a court to compel arbitration made by a party showing an agreement described in section 7303 (relating to validity of agreement to arbitrate) and a showing that an opposing party refused to arbitrate, the court shall order the parties to proceed with arbitration. If the opposing party denies the existence of an agreement to arbitrate, the court shall proceed summarily to determine the issue so raised and shall order the parties to proceed with arbitration if it finds for the moving party. Otherwise, the application shall be denied.”

The existence of an agreement to arbitrate a dispute may be raised by preliminary objection.

Agreements to arbitrate disputes are valid and enforceable under Pennsylvania law, “save upon such grounds as exist in law or in equity relating to the validity, enforceability or revocation of any contract.” In this case the plaintiff opposes the defendants’ request to arbitrate their dispute on two grounds. The plaintiff first contends that the agreement is an unconscionable contract of adhesion because it limits the amount of damages that may be awarded as well as pre-hearing discovery. Secondly, the plaintiff contends that the agreement violates the Medicaid program under title XIX of the Social Security Act, also known as the Medicaid Act, 42 U.S.C. § 1396r, and the Code of Federal Regulations on Medicare and Medicaid services at 42 C.F.R. §483.12(d)(3), because it constituted additional consideration that may not be imposed on a Medicaid patient such as Ms. Flueso as a condition for admission to a nursing home. For the reasons stated below, we find no merit in either of these contentions.

I. The Agreement To Arbitrate Is Not Unconscionable

A. Contract of Adhesion

The plaintiff argues that the agreement was a contract of adhesion. A contract of adhesion is defined as standard form contract prepared by one party, to be signed by the party in a weaker position, usually a consumer, who has little choice about the terms. Huegel v. Mifflin Construction Company Inc., 796 A.2d 350, 357 (Pa. Super. 2002).

The agreement at issue falls within this definition. It was a standard form document prepared by Manor Care for signature by new residents. It was to be signed by Ms. Mannion on behalf of her mother, a consumer of nursing home services to be provided by Manor Care. Given the circumstances, Ms. Mannion was in a weaker position without any meaningful choice when she signed the agreement. She was under great pressure to arrange very quickly for her mother to be moved from the hospital to a skilled nursing facility. Because of considerations of geography and availability Manor Care appeared to be the only suitable option. Ms. Mannion spoke by telephone with Louise DeFranco, the admission director at Manor Care, about the paperwork required for her mother’s admission to the facility. Ms. DeFranco agreed to fax this paperwork to Ms. Mannion for her signature. When Ms. Mannion received the faxed paperwork, consisting of 21 pages, she did not have time to read the material carefully before signing and returning the documents. She was very upset at the time, and recalls the experience only as a blur. She acknowledges that she was aware that the paperwork included an agreement to arbitrate, but she did not understand that this would preclude her from pursuing a claim in court. Ms. DeFranco never explained the arbitration agreement to her. Nor was Ms. Mannion informed that she could make changes in the preprinted documents.

Section three of the agreement gives the signatory three business days to withdraw his/her consent to arbitrate disputes. However, this provision was at the bottom of page five of the six-page preprinted agreement, and it was not called to Ms. Mannion’s attention. Considering the pressure she was under during this period of time, it is understandable that she felt she had little choice but to sign the documents as presented in order to assure her mother’s placement in the facility. Thus, we find that the agreement was a contract of adhesion.

B. Unconscionability

A contract of adhesion is not ipso facto unenforceable. It is unenforceable only to the extent that it is found to be unconscionable. Lytle v. Citifinancial Services Inc., 810 A.2d 643 (Pa. Super. 2002).

“Once a contract is deemed to be one of adhesion, its terms must be analyzed to determine whether the contract as a whole, or specific provisions of it, are unconscionable.” Denlinger Inc. v. Dendler, 415 Pa. Super. 164, 176, 608 A.2d 1061, 1067 (1992).

A contract term is unconscionable if (1) the party challenging it had no reasonable choice in accepting it, as in the case of a contract of adhesion, and (2) the provision unreasonably favors the other party. Huegel, 796 A.2d at 357 (holding that an arbitration clause was not unconscionable because it did not unreasonably favor the defendants). Although we have found the agreement to be a contract of adhesion, we do not believe that the provision for arbitration unreasonably favors either party. There is a strong public policy favoring arbitration of disputes. Commonwealth, Office of Administration v. Commonwealth, Pennsylvania Labor Relations Board, 528 Pa. 472, 480, 598 A.2d 1274, 1277-78 (1991); Flightways Corp. v. Keystone Helicopter Corp., 459 Pa. 660, 662-63, 331 A.2d 184, 185 (1975). Therefore, it is only the in the rarest of cases that an agreement to arbitrate will be unconscion' able. There is a presumption that such an agreement is fair and does not unreasonably favor either party. Any doubt as to arbitrability should be resolved in favor of arbitration.

The plaintiff argues that the entire agreement is unconscionable because it contains limitations both on the damages that may be awarded and on the available discovery. These provisions, the plaintiff contends, are inextricably intertwined with the provision for arbitration and taint the entire agreement. We disagree. The agreement contains an explicit severability clause in section D.1.4. Under this section if any provision of the agreement is held to be unenforceable, the other provisions of the agreement are not to be affected. The agreement is to be construed as if it had never contained the unenforceable provision. This is consistent with the general principle of Pennsylvania law that if less than an entire agreement is invalid, and the invalid provision is not an essential part or the primary purpose of the agreement, then the remaining portions of the agreement are fully enforceable. Huber v. Huber, 323 Pa. Super. 530, 537-38, 470 A.2d 1385, 1389 (1984); Forbes v. Forbes, 159 Pa. Super. 243, 249, 48 A.2d 153, 156 (1946); Restatement (Second) of Contracts §184(1) (1981). In the instant case both the damage and discovery limitations are severable from the remainder of the agreement and do not invalidate the provision for arbitration.

1. The damages limitation

The damages sought by the plaintiff on her claims include economic and noneconomic damages and punitive damages. Section B of the agreement requires the plaintiff to credit the amount of collateral source payments against any economic damage claim, limits the recovery of noneconomic damages to $250,000, and prohibits completely the recovery of punitive damages. However, although these limitations unreasonably favor the defendants and hence are unenforceable in a contract of adhesion, they do not invalidate the arbitration provision.

The Sixth Circuit Court of Appeals dealt with a similar issue in Morrison v. Circuit City Stores Inc., 317 F.3d 646 (6th Cir. 2003), a consolidated appeal, involving federal discrimination claims by individuals against their former employers. Each of the employment contracts contained a provision for arbitration as well as significant limitations on damages. The court recognized that a limitation on liability could undermine the Congressional intent behind a statute to compensate victims of discrimination and to deter wrongful behavior. In both of the cases under review the court held invalid a provision that limited recovery to one year of backpay, reimbursement of lost fringe benefits, two years of front pay, compensatory damages, and punitive damages up to $5,000 or the sum of the backpay and frontpay, whichever is greater. However, the court also held that the damage limitation was severable and the provision for arbitration valid.

We reached a similar conclusion in Hughes v. Allied Inspection Services, 50 Leh.L.J. 925 (2003), involving a home inspection contract. We held there that an unlawful limitation on damages was severable from the rest of the contract and did not invalidate the provision for arbitration of disputes.

In Hughes we distinguished the case of Carll v. The Terminix International Company L.P., 793 A.2d 921 (Pa. Super. 2002), on which the plaintiff here relies. In Carll the Superior Court found that the contract language limiting liability was not independent of the agreement to arbitrate, and therefore struck the entire arbitration clause from the agreement. However, the arbitration clause in Carll was materially different from the provision for arbitration in both Hughes and the instant case. The provision in Carll read as follows:

“Arbitration. The purchaser (including anyone claming through purchaser) and Terminix agree that all matters in dispute between them ... shall be settled exclusively by arbitration... [T]he award shall not, and the arbitrator shall not have the power or authority to, hold Terminix responsible for (i) the repair or replacement of any damage to the identified property, (ii) loss of anticipated rents and/or profits, (iii) direct, indirect, special, incidental, consequential, exemplary or punitive damages, or (iv) damages or penalties relating to or arising out of any claim alleging any deceptive trade practice.” Carll, 793 A.2d at 923.

The court noted that “[t]he arbitration provision not only provides for arbitration but at the same time limits the arbitrator’s authority.” Id. at 926. The arbitration provision specifically denies to the arbitrator the power or authority to make an award for repair or replacement of property; for loss of rents or profits; for “direct, indirect, special, incidental, consequential, exemplary or punitive damages”; or for deceptive trade practice claims. Id. at 923. Thus, the provision for arbitration was inextricably intertwined with the liability limitation. As a result, the entire arbitration clause was found invalid.

Carll is clearly distinguishable from this case because the arbitration provision in section A of the agreement is separate and distinct from the damage limitations in section B of the agreement, both location-wise and functionally. The damage limitations in section B may be stricken from the agreement without affecting the parties’ agreement to arbitrate in section A. Moreover, as noted above, in the instant case the agreement contains an explicit severability clause in section D.1.4. There was no severability clause in Carll.

2. The discovery limitation

On the discovery issue, the United States Supreme Court in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), reviewed the validity of discovery limitations in arbitration agreements. An employer sought to compel arbitration in a suit filed by a former employee for age discrimination. The employee argued that the discovery allowed for in arbitration was more limited than that which is allowed under the federal rules. The court declined to find the discovery limitation unenforceable, and noted that “by agreeing to arbitrate, a party ‘trades the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration.’” Id. at 31, citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth Inc., 473 U.S. 614, 628 (1985). The court did carve out an exception where the litigant challenging the discovery limitation can show that the allowable discovery “will prove insufficient to allow... claimants... a fair opportunity to present their claims.” Id. at 31.

Here, the plaintiff contends that the limitations placed on discovery are unfair and unreasonably favor the defendants because (1) the plaintiff is required to turn over a greater number of categories of material, and (2) the plaintiff is curtailed from acquiring evidence to support her theories of negligence. More specifically, the plaintiff asserts that she is prevented from deposing employees of Manor Care involved in the care of Ms. Flueso, other than treating physicians, and that she is also precluded from obtaining any policy and procedure manuals adopted by the defendants for the care of individuals like Ms. Flueso. Without the ability to acquire this information the plaintiff claims that she will be handicapped in developing many of her claims, and her expert may be limited in his ability to offer a meaningful opinion. We agree. The discovery limitations set forth in section A. 1.6(1), (2) and (8) have the effect of severely restricting the plaintiff’s ability to prepare and present her case. By way of example, paragraph 71 of the complaint avers that

“(71) The nursing home defendants, acting by and through their agents, breached the duties set forth in the preceding paragraphs by:

“(a) failing to hire appropriately trained staff;

“(b) failing to appropriately train staff members;...

“(g) failing to maintain appropriate records, including failing to monitor and document significant changes in Marian Flueso’s condition, intentionally failing to document all injuries and illnesses, altering, destroying, and/ or rewriting records, as well as documenting care that was never given;...

“(p) grossly understaffing the facility;..

The plaintiff is unable to depose staff members to develop these theories of liability. A limitation on discovery, such as this, may have a chilling effect on a person’s capacity to pursue litigation. Thus, we find that the provisions for discovery in the agreement are one-sided and unreasonably favor Manor Care. Hence we find these limitations to be unconscionable and invalid.

However, as with the limitation on damages, the discovery limitations are severable. In view of the extensive discovery allowed to Manor Care under the agreement, it cannot be said that discovery limitations are an essential part or the primary purpose of the parties’ agreement to resolve their disputes by arbitration. From a functional standpoint the agreement to arbitrate is self-sustaining even without sections A. 1.6(1), (2) and (8); it is fully operable even if the discovery limitations are completely removed from the agreement. Therefore, we do not find it necessary to nullify the entire agreement. The arbitrator will be responsible for establishing fair ground rules for discovery in accordance with the Federal Rules of Civil Procedure.

II. The Legality of the Agreement

The Medicaid program under title XIX of the Social Security Act, also known as the Medicaid Act, 42 U.S.C. § 1396r, and the Code of Federal Regulations on Medicare and Medicaid Services at 42 C.F.R. §483.12(d)(3), prohibit a nursing facility that is admitting a patient entitled to medical assistance from Medicare or Medicaid from requiring any consideration as a precondition to admission into the facility. The plaintiff interprets the agreement as consideration that was required by the defendants as a condition for admitting Ms. Flueso to their facility. As a result, the plaintiff contends that the agreement was in violation of federal law and is unenforceable.

We find no merit in this argument for two reasons. First, there is no evidence that the agreement was in fact a prerequisite for admission to the facility. Although we have found that under the circumstances the plaintiff had no meaningful choice but to sign the agreement, this was based in large part on her state of mind in the emergency conditions under which she was functioning. Ms. DeFranco, the admission director for Manor Care, testified in her deposition that the agreement was voluntary and that it was for the family to decide whether or not they were going to be signing. Significantly, the agreement in section C permits a signatory to withdraw her consent to arbitration within three business days after execution. There is no indication in the agreement that a consequence of revocation would be a discharge from the facility. Accordingly, we cannot conclude on the evidence presented that the agreement was a requirement for admission into Manor Care.

Secondly, we do not view an agreement to arbitrate disputes as a prohibited consideration under the Medicare Act. We believe the intention of the Act and regulations in prohibiting additional consideration was to prohibit a nursing home from imposing financial or economic requirements on a Medicare patient beyond the payments to be provided by the government. In view of the strong federal policy in favor of arbitrating disputes, we decline to read the Medicare Act and regulations regarding consideration as applicable to an agreement to arbitrate.

CONCLUSION

For the reasons stated, the defendants’ preliminary objection pursuant to Pa.R.C.P. 1028(a)(6) is sustained, and this case is dismissed. The parties are to proceed to arbitration under the arbitration and limitation on liability agreement dated January 13, 2004.

ORDER

Now, September 26, 2006, upon consideration of the defendants’ preliminary objections to the complaint and plaintiff’s response thereto, after review of the parties’ briefs and for the reasons set forth in the accompanying opinion, including our finding that the limitations on discovery in section A. 1.6(1),(2) and (8) and the limitation on damages in section B of the arbitration and limitation of liability agreement are unconscionable and unenforceable, it is ordered that the preliminary objection to compel arbitration is sustained, and the complaint is dismissed without prejudice to the parties’ right to proceed with arbitration of their dispute under the arbitration rules of the American Arbitration Association.

      . The complaint also named Ancillary Services Management Inc., as a co-defendant. However, the complaint has been dismissed as to this defendant for lack of prosecution.

      . The evidence submitted consisted of the depositions of Ms. Mannion and of Louise DeFranco, the admission director for Manor Care, along with the arbitration and limitation of liability agreement executed by Ms. Mannion, a fax cover sheet from Ms. DeFranco to Ms. Mannion, several pages of medical records of Sacred Heart Hospital pertaining to Ms. Flueso; a social service progress note of Manor Care pertaining to Ms. Flueso, various training materials provided by Manor Care to Ms. DeFranco regarding arbitration agreements, and an attestation form completed by Ms. DeFranco in connection with Ms. Flueso’s admission.

      . Deposition of Edith Mannion, 5/4/2006, 42.

      . Ms. Flueso also signed a copy of the admission documents, including the agreement. However, she suffered from confusion when the paperwork was completed. For this reason, her daughter also executed the documents on her behalf.

      . Agreement §A.1.6.

      . Id. at §A. 1.6(2).

        . Id at §A. 1.6(8).

      . Id. at §B.1.2.

      . Id. at §D. 1.4.

      . The named parties to the agreement are Manor Care and Ms. Flueso. However, the agreement also covers officers and employees of Manor Care, such as Mr. Scarborough, and related corporations, with respect to claims arising from care provided at the Manor Care facility.

      . 42 Pa.C.S. §7304(a).

      . Pa.R.C.P. § 1028(a)(6).

      .42 Pa.C.S. §7303.

      . Defendants’ argument that the limitations are a fair trade-off for the defendants’ waiver of interest on unpaid nursing home charges is disingenuous.

      . Deposition of Louise DeFranco, 5/2/06, at 48.


source: Caselaw Access Project

author: BUCCI, J,

license: Public Domain

text:
    Commonwealth v. Barker

      Kevin McBeth, assistant district attorney, for the Commonwealth.

      Andrea Mertz, assistant public defender, for defendant.
    August 29, 2006
   BUCCI, J,

PROCEDURAL HISTORY

Appellant, Scott Barker, was charged with two counts of involuntary deviate sexual intercourse, three counts of aggravated indecent assault, disseminating explicit sexual material to a minor, endangering the welfare of a child, corruption of minors, and three counts of indecent assault.

On November 21, 2005, appellant pled guilty to one count of involuntary deviate sexual intercourse and corruption of minors. Pursuant to a plea agreement with the Commonwealth, appellant was sentenced on May 25, 2006 to five to 10 years incarceration followed by five years probation. On this same date, a Megan’s Law hearing was held, during which this court heard testimony from Dr. Veronique Valliere of the Pennsylvania Sexual Offender Assessment Board and Dr. Timothy Foley, appellant’s expert. Following the hearing, this court determined that appellant is a sexually violent predator.

Thereafter, appellant filed a timely notice of appeal to the Superior Court on June 12, 2006. On June 14, 2006, this court entered an order requiring appellant to file , a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. § 1925(b). On June 27, 2006, appellant filed his concise statement, raising the following issues:

(1) The evidence presented was insufficient to prove by clear and convincing evidence that defendant meets the statutory definition of being a sexually violent predator pursuant to 42 Pa.C.S. §9792.

(2) The trial court erred in not rendering the testimony of the sexual offender assessor inadmissible because the assessor based her findings on hearsay statements of mere uncorroborated reports and allegations and facts beyond the limited facts of which defendant plead guilty.

(3) The trial court erred by finding that defendant was a sexually violent predator where the finding was contrary to the weight of the evidence.

STATEMENT OF FACTS

The disturbing events that led to appellant’s conviction began in 1998, when appellant orally raped his 4-year-old stepdaughter, C.E. C.E. described to investigators an ongoing pattern of sexual assault by appellant. She reported that appellant put his penis inside her crotch, rubbed her genitals with his hand, forced her to masturbate him, and orally raped her by both putting his mouth on her vagina and putting his penis in her mouth. The victim also reported that appellant had her watch pornography and would put his penis between her naked buttocks and “move up and down.” She described semen and ejaculate, saying he would but his penis in her mouth until “stuff’ came out. C.E. reported that appellant once made her masturbate him in a park. (Commonwealth exhibit no. 1, sentencing hearing, 5/25/06, at 1-2.)

When interviewed by investigators, appellant admitted to the sexual abuse of his stepdaughter. He admitted to repeatedly orally raping C.E., as well as to simulating sex with her by putting his penis between her legs or buttocks. Appellant was quite blatant in these attacks, reporting that he once forced C.E. to masturbate him on a park bench and that he would assault her with other children in the home. In fact, appellant was actually caught twice by his wife, but persisted in his assaults. It appears that appellant abused C.E. from 1998 to 2000, stopped for a few years, and then began again in 2003. On September 27, 2004, Berks County Children and Youth Services received a report of the sexual abuse. (Commonwealth exhibit no. 1, sentencing hearing, 5/25/06, at 1-2.)

ADMIS SABILITY OF DR. VALLIERE’S TESTIMONY

Appellant contends that this court erred permitting the testimony of Dr. Valliere, a member of the Pennsylvania Sexual Offender Assessment Board, because she based her assessment on hearsay statements. Dr. Valliere utilized perhaps a dozen different sources in making her evaluation, including the affidavit of probable cause, bail information, this court’s order for the Sexual Offender Assessment Board evaluation, the Child Protective Services report, the criminal docket history, a drawing by the victim, an investigation report by the Pennsylvania Sexual Offender Assessment Board investigator, a letter from appellant’s attorney, the police criminal complaint, a Reading Police Department summary incident report, records from Berks County Children and Youth Services, a sex offender evaluation, and a transcript of appellant’s guilty plea hearing. (Commonwealth exhibit no. 1, sentencing hearing, 5/25/06, at 1.) (N.T., sentencing hearing, 5/25/06, at 11.) Appellant objects to all of these sources except the guilty plea colloquy. (N.T., sentencing hearing, 5/25/06, at 12.)

“ [A]n appellate court may reverse a trial court’s ruling regarding the admissibility of evidence only upon a showing that the trial court abused its discretion.” Commonwealth v. Johnson, 874 A.2d 66, 72 (Pa. Super. 2005), citing Commonwealth v. Minerd, 562 Pa. 46, 54, 753 A.2d 225, 229 (2000). “An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill will or partiality, as shown by the evidence or the record.” Johnson, 874 A.2d at 72.

To be admissible, evidence must be competent and relevant. Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super. 2003). The courts of this Commonwealth have repeatedly held that evidence is admissible if, and only if, the evidence logically or reasonably tends to prove or disprove a material fact in issue, tends to make such fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact. Id. See also, Pa.R.E. 401.

Pennsylvania Rule of Evidence 703 provides that:

“The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.”

Dr. Valliere testified that all the items she used in her sexual offender assessment are the type of information commonly used by experts in rendering similar assessments. (N.T., sentencing hearing, 5/25/06, at 11.) Therefore, this court properly admitted her testimony pursuant Pa.R.E. 703.

SUFFICIENCY OF THE EVIDENCE

The appropriate standard of review regarding the sufficiency of the evidence is “whether the evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the Commonwealth as the verdict winner, is sufficient to support all the elements of the offenses.” Commonwealth v. DeJesus, 567 Pa. 415, 422, 787 A.2d 394, 398 (2001). “At the hearing prior to sentencing, the court shall determine whether the Commonwealth has proved by clear and convincing evidence that the individual is a sexually violent predator.” 42 Pa.C.S. §9795.4(e)(3). Accordingly, when reviewing the sufficiency of the evidence regarding the determination of sexually violent predator status, the trial court will be reversed only if the Commonwealth has not presented clear and convincing evidence to enable a trial court to determine that each element required by the statute has been satisfied. Commonwealth v. Krouse, 799 A.2d 835, 838 (Pa. Super. 2002).

The determination that a defendant is a sexually violent predator is made through several steps with the final decision in the hands of the trial court. A sexually violent predator is defined as, “a person who has been convicted of a sexually violent offense as set forth in section 9795.1 (relating to registration) and who is determined to be a sexually violent predator under section 9795.4 (relating to assessments) due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.” Krouse, 799 A.2d at 838 (citing 42 Pa.C.S. §9792 “Sexually Violent Predator”).

Once a defendant is convicted of an offense under section 9795.1, the trial court must order the Pennsylvania Sexual Offenders Assessment Board to assess the defendant pursuant to the section 9795.4(b) factors. These assessment factors include the following:

“(1) facts of the current offense, including:

“(a) whether the offense involved multiple victims

“(b) whether the individual exceeded the means necessary to achieve the offense

“(c) the nature of the sexual contact with the victim “(d) relationship of the individual to the victim “(e) age of the victim

“(f) whether the offense included a display of unusual cruelty by the individual during the commission of the crime

“(g) the mental capacity of the victim

“(2) prior offense history, including:

“(a) the individual’s prior criminal history

“(b) whether the individual completed any prior sentences

“(c) whether the individual participated in available programs for sexual offenders

“(3) characteristics of the individual, including:

“(a) age of the individual

“(b) use of illegal drugs by the individual

“(c) any mental illness, mental disability, or mental abnormality

“(d) behavioral characteristics that contribute to the individual’s conduct

“(4) factors that are supported in a sexual offender assessment field as criteria reasonably related to the risk of reoffense.” 42 Pa.C.S. §9795.4(b).

Once a written report is submitted detailing the board’s findings, the court holds a hearing to determine if the Commonwealth can prove by clear and convincing evidence that the defendant is a sexually violent predator.

In the present case, this court relied heavily on the findings of Dr. Yalliere and determined that her testimony was credible in finding appellant to be a sexually violent predator. As stated above, the Commonwealth must prove by clear and convincing evidence that appellant has a mental abnormality or personality disorder that makes him likely to engage in sexually violent offenses in the future and that he engaged in predatory behavior. In this case, both Dr. Valliere and Dr. Foley agreed that appellant suffers from a mental abnormality, specifically pedophilia, and that he has engaged in predatory behavior. (N.T., sentencing, 5/25/06, at 13, 18, 42.) However, they disagreed about whether that abnormality makes him likely to engage in predatory sexually violent offenses in the future. This court finds that the Commonwealth has established by clear and convincing evidence that it does.

In making the determination that the Commonwealth proved by clear and convincing evidence that his mental abnormality would make him likely to engage in predatory sexually violent offenses, this court carefully considered both Dr. Valliere’s testimony and Dr. Foley’s, as well as the factors listed in the Megan’s Law II statute as listed above.

Dr. Valliere started by explaining how she determined appellant met the criteria for pedophilia. She considered that appellant sexually assaulted a very young child repeatedly over a five-year period and that he persisted in his abuse even after being caught. (N.T., sentencing, 5/25/06, at 13-15.) She noted that there is no cure for pedophilia. (N.T., sentencing, 5/25/06, at 16.) While mental health professionals can assist pedophiles in controlling their desire, they cannot eliminate those desires and consequently, pedophiles are always at risk of re-offending. (N.T., sentencing, 5/25/06, at 16.)

Dr. Valliere also addressed the factors listed in section 9795.4(b). She noted that this was not a case where the defendant committed one act against the victim. Appellant assaulted C.E. numerous times over a five-year period. On more than one occasion, the abuse occurred when other people where present in the residence or in public. Dr. Valliere also noted that appellant’s first offense was “extremely escalated, oral penetration of a small child.” (N.T., sentencing, 5/25/06, at 20.)

“So what that tells us is that either in practice or in fantasy [appellant] became so comfortable with breaking those sexual barriers of raping a small child that he was able to immediately, you know, gain an erection and force a 4-year-old to suck his penis. That’s a pretty escalated initial offense behavior for the very first time somebody offends somebody, unless as I said, they’d overridden those internal and external barriers to that type of rape and deviance prior.” (N.T., sentencing, 5/25/06, at 20.)

The victim’s very young age gave her limited emotional and mental capacity. (N.T., sentencing, 5/25/06, at 21.) Additionally, she was very vulnerable as a result of her relationship to him, as well as her mother’s failure to protect her from the abuse once she became aware of it (N.T., sentencing, 5/25/06, at 21.)

Dr. Valliere noted that appellant had no known criminal history beyond a possible juvenile theft offense and that there was no evidence he engaged in gratuitous acts of violence or torture in abusing the victim. (N.T., sentencing, 5/25/06, at 19-21.) However, she testified that most offenders who meet the criteria for sexually violent predators do not possess all of the factors listed in the statute. (N.T., sentencing, 5/25/06, at 23.)

Appellant’s expert, Dr. Foley, reviewed the same material as Dr. Valliere, but he also used the Static 99 test and determined that appellant would likely not be reconvicted. (N.T., sentencing, 5/25/06, at 46-47.) The Static 99 test is an actuarial tool that looks at unchangeable factors that an offender has. (N.T., sentencing, 5/25/06, at 26.) It categorizes individuals who share certain characteristics and based on previous studies of offenders, determines the likelihood that someone with those characteristics will be re-arrested. (N.T., sentencing, 5/25/06, at 26.) However, this analytical test does not consider all of the risk factors required by section 9795.4 and it only measures re-arrest, although research has suggested that re-offense rates are two to three times re-arrest rates. (N.T., sentencing, 5/25/06, at 26.) Consequently, this test has only moderate predictive value. For this reason, as well as the fact that neither the Static 99 test nor any statistical analysis is required in determining whether an offender is a sexually violent predator, this court did not consider the application of the Static 99 test to appellant conclusive.

In making its determination, this court took into consideration the number and nature of the offenses, the immediate escalation of the acts, and the boldness of abusing the victim in public or when others were nearby. This court also considered the predatory nature of appellant’s actions and the advantage he took of his position as C.E.’s stepfather. This court was particularly struck by Dr. Valliere’s testimony regarding appellant’s motivation to offend.

“Even in the face of being caught and having been caught, he continues to commit sexually aggressive crimes. This is also reiterated in the facts that Mr. Barker offended this child in a pretty high risk public situation, specifically having her — I’m sorry — having her masturbate him in public places or at least once in a public park where anybody could have encountered them.

“When we see that in sex offenders, it gives us some form of evaluation or assessment on how intense their arousal is and how many risks they’re willing to take, how motivated they are through this deviance.” (N.T., sentencing, 5/25/06, at 16.)

In consideration of Dr. Valliere’s testimony and in consideration of all of the factors listed in the statute, this court finds by clear and convincing evidence that the Commonwealth has established that appellant’s mental abnormality makes him likely to engage in sexually violent offenses in the future, and therefore finds that appellant is a sexually violent predator.

WEIGHT OF THE EVIDENCE

Appellant further contends that this court’s determination that appellant is a sexually violent predator was against the weight of the evidence.

“The weight of the evidence is exclusively for the finder of fact, who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses.” Commonwealth v. McCloskey, 835 A.2d 801, 809 (Pa. Super. 2003).

In reviewing a claim that a jury’s verdict is against the evidence, the court must be guided by the principle that relief should be granted only if it finds that the verdict is so contrary to the weight of the evidence it shocks its sense of justice. Commonwealth v. Schwartz, 419 Pa. Super. 251, 615 A.2d 350 (1992).

The Commonwealth’s evidence has been summarized above. After carefully considering the relevant facts and law, this court cannot find that its decision in this case was so contrary to the weight of the evidence that it shocks its sense of justice.

CONCLUSION

For the reasons detailed above, this court submits that appellant’s assignments of error should be denied and his judgment of sentence affirmed.

      . 18 Pa.C.S. §3123(a)(7), 18 Pa.C.S. §3123(b).

      . 18 Pa.C.S. §3125(b), 18 Pa.C.S. §3125(a)(l), 18 Pa.C.S. §3125(a) (8).

      . 18 Pa.C.S. §5903(c)(l).

      . 18 Pa.C.S. §4304.

      . 18 Pa.C.S. §6301(a)(l).

      . 18 Pa.C.S. §3126(a)(7), 18 Pa.C.S. §3126(a)(1), 18 Pa.C.S. §3126(a)(8).

      . Mental Abnormality: A congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons. 42 Pa.C.S. §9792.

      . Predatory: An act directed at a stranger or at a person with whom a relationship has been initiated, established, maintained, or promoted, in whole or in part, in order to facilitate or support victimization. 42 Pa.C.S. §9792.


author: ASHWORTH, J,

text:
    Discover Bank v. Andresen

      William T. Molczan, for plaintiff.

      David Francis Andresen, pro se.
    May 22, 2008
   ASHWORTH, J,

— Before the court is plaintiff Discover Bank’s motion for summary judgment based on the “deemed” admissions of defendant David Francis Andresen. For the reasons set forth below, this motion will be granted.

I. BACKGROUND

In this case, Discover Bank filed a complaint on October 31, 2007, charging defendant with failure to pay a credit card bill. Defendant filed a pro se answer on January 15,2008, denying the existence of a credit card debt with the bank. On February 27,2008, Discover Bank served defendant with a request for admissions and requests for production of documents in support of the averments set forth-in defendant’s answer. Under Pa.R.C.P. 4014, answers (or objections) were due no later than March 28, 2008.

On April 14, 2008, Discover Bank filed a motion for summary judgment based upon the “deemed” admissions of defendant for failure to respond to the request for admissions. Despite a notice to plead, no response to the motion was filed by defendant. On May 8, 2008, a praecipe to assign the pending motion to the court for disposition was filed by Discover Bank. Thirty days have now passed since the filing of motion for summary judgment and no response or brief in opposition has been filed by defendant.

II. DISCUSSION

Pennsylvania Rules of Civil Procedure 1035.1 through 1035.5 govern the summary judgment motion in this matter. Under Rule 1035.2:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, a party may move for summary judgment in whole or in part as a matter of law

“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.”

Therefore, a motion for summary judgment is based upon an evidentiary record which entitles the moving party to judgment as a matter of law, and which is one of two types: (1) the record shows the material facts are undisputed, and hence no issue exists to be submitted to the jury; or (2) the record contains insufficient evidence of facts to make out a prima facie cause of action or defense and, hence, there is no issue to submit to the jury. In the latter instance, the motion for summary judgment is made by a party who does not have the burden of proof at trial and who does not have access to the evidence to make a record which affirmatively supports the motion.

The burden of responding to a motion for summary judgment is set forth in Pa.R.C.P. 1035.3:

“(a) The adverse party may not rest upon the mere allegations or denials of the pleadings but must file a response within 30 days after service of the motion identifying

“(1) one or more issues of fact arising from the evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or

“(2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.” (emphasis added)

In responding to a motion for summary judgment, an adverse party under Rule 1035.2(b) “may supplement the record or set forth the reasons why the party cannot present evidence essential to justify opposition to the motion and any action proposed to be taken by the party to present such evidence.”

As noted above, defendant has failed to offer any response to the motion. Rule 1035.2(d) provides: “Summary judgment may be entered against a party who does not respond.” Under the circumstances of this case, defendant is deemed not to oppose the motion for summary judgment for failing to respond.

A motion for summary judgment will not, however, be automatically granted simply because the nonmoving party has failed to respond. The evidentiary record must establish that the moving party is entitled to judgment as a matter of law. In this case, Discover Bank relies upon its request for admissions to establish the lack of any genuine issue of material fact and, thus, its right to summary judgment.

The Pennsylvania Rules of Civil Procedure allow a party, after an action has been commenced, to serve upon any other party a written request for admissions. Pa.R.C.P. 4014(a). The rules provide that once a party has been served with a request for admissions, if the party does not respond by a verified answer, or by properly signed objections, to each matter as to which an admission is requested, within 30 days of the date of service, the matter is admitted. Pa.R.C.P. 4014(b).

Plaintiff, in its motion for summary judgment, relies upon the request for admissions which stated, inter alia: that defendant applied for a Discover Bank credit card; that defendant has not paid for any goods and services obtained through the use of the credit card since September 2,2006; that the statements attached to the discovery requests correctly identified the payments, charges and balances on the account; that defendant has not submitted any written disputes as to billing inaccuracies; and that defendant is indebted to Discover Bank in the amount of $8,821.79 (as of October 31, 2007). See nos. 1-5 of the request for admissions.

Given the above admissions, this court must conclude that there are no genuine issues of material fact at issue in this case and that Discover Bank has established its right to summary judgment as a matter of law.

Accordingly, we enter the following:

ORDER

And now, May 22, 2008, upon consideration of the motion for summary judgment of plaintiff Discover Bank, and the brief filed in support thereof, it is hereby ordered that this motion is granted and judgment is entered against defendant David Francis Andresen in the amount of $8,821.79, with interest at the rate of 6.0 percent per annum from the date of judgment, plus attorneys’ fees of $1,000, and costs.


author: NANO VIC, J.,

text:
    Commonwealth v. Karper

      Jean A. Engler, assistant district attorney, for Commonwealth.

      Robert T Yurchak, for defendant.
    December 5, 2007
   NANO VIC, J.,

— On December 5, 2006, the defendant, Christopher D. Karper, confessed to Trooper David Klitsch of the Pennsylvania State Police and Detective Joseph Schatz of the Jim Thorpe Police Department that he had intentionally set three fires within the Borough of Jim Thorpe and taken $ 110 from the Fairview Hose Company. Defendant seeks to suppress these statements contending that they were coerced and involuntarily made. For the following reasons, we deny defendant’s suppression motion.

FACTUAL BACKGROUND

Trooper Klitsch is a deputy state fire marshal. In this position he investigates the cause and origin of fires. On December 5, 2006, he was called to investigate a fire at 1370 Germantown Road in the borough which had occurred earlier that day at the Marzen Campground. As part of this investigation, Klitsch learned of the description of a vehicle seen speeding away from the area where the fire was discovered shortly before it was reported. He also learned that a vehicle matching this description was parked outside the Fairview Hose Company.

After concluding his investigation at the scene of the fire, Klitsch, accompanied by Schatz, drove to the Fairview Hose Company. The suspicious vehicle which Klitsch had previously been apprised of was still there. This vehicle, Klitsch had also been told, was owned by the defendant. Defendant was an active fire fighter with the Fairview Hose Company (he, in fact, responded in this capacity to each of the fires which are the subject of the criminal charges against him) and was known by Klitsch beforehand from his work training fire fighters.

Klitsch and Schatz entered the fire station, found defendant, and asked whether they could question him about another firé which had occurred three days earlier, on December 2,2006, in a garage near where defendant resided. In response to defendant’s offer to go outside and talk, Klitsch suggested that because it was cold outside, it would be easier and more comfortable to meet at the police station. Defendant was also told that he was not under arrest, and that after they spoke he would be returned to the fire station. Both officers were in plainclothes during this conversation. Defendant agreed to Klitsch’s suggestion and was taken by both officers to the police station. Defendant was not frisked, handcuffed or restrained.

At the police station, defendant met with Klitsch and Schatz in a separate interview room. Before any questions were asked, Klitsch read and advised defendant of his Miranda warnings, then handed him a printed copy of these warnings which defendant signed. On this form, defendant indicated that he understood each of the rights listed and, having these rights in mind, he was willing to speak with the officers. (Commonwealth exhibit no. 1.) Defendant recorded the time he signed the form as 8:20 p.m.

Before questioning defendant about the garage fire, Klitsch asked defendant where he had been that day. Defendant explained his whereabouts, none of which placed him in Germantown. When told that his car had been seen in Germantown before the fire was reported, defendant became quiet. Klitsch told defendant that if he was involved in setting the fire, he needed help; Klitsch also offered to assist defendant in getting treatment and counseling. At this point, defendant admitted he had set the fire. Defendant’s description of how and when the fire was set corroborated the results of Klitsch’s investigation, which had not been disclosed, and which concluded that the fire had been started on the rear wall of the structure near a window.

When next asked about the December 2 garage fire, defendant initially denied any responsibility but claimed that the fire was started by three minors he had observed smoking marijuana at the site. After Klitsch expressed disbelief over this version of the cause of the fire, defendant admitted to setting the fire. Again, his description of how and where the fire was set was consistent with the results of Klitsch’s investigation. At the officers’ request, defendant provided a handwritten statement admitting his part in starting both fires. (Commonwealth exhibit no. 2.) This statement was prepared without assistance from either officer.

Klitsch next asked defendant if he had any information regarding afire which had occurred on Februaiy 4,2006, damaging two buildings on Center Street — one at 330 Center Street, the other at 332 Center Street — which were separated by a common walkway. Defendant at first denied any direct knowledge but said that he had heard that gasoline was poured on the walkway between the two buildings. When Klitsch told defendant that this information had been kept confidential as part of his investigation and was known only to himself, Detective Schatz and the person or persons responsible for the fire, defendant confessed to starting this fire as well. Again, defendant’s description of where and how the fire was set was consistent with the findings of Klitsch’s investigation. Defendant also provided a second handwritten statement admitting his responsibility for this third fire. (Commonwealth’s exhibit no. 3.)

After being questioned about the three fires, Detective Schatz asked defendant if he knew anything about any other incidents at the Fairview Hose Company. When defendant asked what he was referring to, Detective Schatz mentioned a theft which had been reported to have occurred on September 11,2006. Defendant admitted taking $110 from a locked cabinet within the fire station and also described how he used this money to purchase a money order from Turkey Hill to pay for his car insurance. No written statement was prepared regarding this offense.

The entire interview with defendant took approximately one and a half hours. During this time, defendant was coherent and calm. His answers were responsive to what he was asked, and he never appeared to be confused or to not understand what was occurring. Defendant was remorseful for what he had done and provided information that only the person responsible for the fires would know. At no time did the officers trick or deceive defendant. At no time did the defendant request to speak with an attorney or his parents. At the conclusion of the interview, defendant was formally arrested and taken before a district justice for preliminary arraignment.

DISCUSSION

Miranda Waiver — Effect of Learning Disability

Defendant initially contends that he was learning disabled and did not have the mental capacity to comprehend the meaning of the Miranda warnings he was given or to appreciate the consequences of waiving these safeguards. At the time defendant was questioned, he was 19 years old and in the eleventh grade. Defendant testified that he had previously failed two grades, had difficulty reading and comprehending what he read, and was enrolled in a special education program. Defendant’s father corroborated this testimony.

No expert evidence was presented by a psychologist or otherwise as to defendant’s mental age, his I.Q., or the extent of his capacity to waive constitutional rights based on mental or physical deficiencies. Defendant himself testified that at the time he was questioned, he understood his right to counsel and to remain silent. Though defendant denied knowing the significance of speaking to the police and how any statements he made could and would be used against him, he also admitted that since being questioned by the police, this warning was further explained to him and he understood it. It was also undisputed that when defendant was asked by the police if he understood his Miranda warnings, he stated he did.

“[T]he determination of whether a defendant has validly waived his Miranda rights depends on a two-prong analysis: (1) was the waiver voluntary, in the sense that defendant’s choice was not the end result of governmental pressure; and (2) was the waiver knowing and intelligent?” Commonwealth v. Brown, 400 Pa. Super. 316, 327, 583 A.2d 805, 810-11 (1990) (holding that this two-prong inquiry applies “whenever a defendant claims he was incapable of making a valid waiver because of a mental or psychological defect”), cert. denied, 502 U.S. 946, 112 S.Ct. 391, 116 L.Ed.2d 341 (1991); see also, Commonwealth v. Cephas, 361 Pa. Super. 160, 164-65, 522 A.2d 63, 65-66 (1987), appeal denied, 516 Pa. 616, 531 A.2d 1118 (1987), cert. denied, 484 U.S. 981, 108 S.Ct. 495, 98 L.Ed.2d 494 (1987). As to the second prong, “the waiver must have been made with a foil awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.” Cephas, 361 Pa. Super. at 163, 522 A.2d at 65.

Whether the waiver was voluntarily given, and was knowingly and intelligently given when given, requires us to view and assess the totality of the circumstances surrounding the defendant and the interrogation, including, as applicable, the defendant’s mental age, lowI.Q., mental disease, limited education and general condition, as well as the duration and means of the interrogation, the conditions attendant to the detention, the attitude of the interrogator, and any and all other factors that could drain a person’s ability to withstand suggestion and coercion. See Brown, 400 Pa. Super. at 327, 583 A.2d at 811; Commonwealth v. Nester, 551 Pa. 157, 163-64, 709 A.2d 879, 882 (1998). “Only if the ‘totality of the circumstances surrounding the interrogation’ reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that Miranda rights have been waived.” Cephas, 361 Pa. Super. at 163, 522 A.2d at 65. It is the Commonwealth’s burden to prove by a preponderance of the evidence that the waiver was knowing and intelligent. Commonwealth v. Fogan, 449 Pa. 552, 558, 296 A.2d 755, 758 (1972).

On this issue, defendant expressed no difficulty to the police in understanding the questions asked of him or the warnings he was provided. He was at all times alert and responsive to the officers’ questions. His demeanor, according to Klitsch, was that of a person who knew what he had done, was remorseful for his conduct, and wanted to take responsibility.

Defendant’s statements, particularly his written ones, evidence a clear understanding of what he had done, that he was admitting wrongdoing, and that he understood the implications of what he was saying. These written statements are lucid and detailed. They express clearly defendant’s appreciation of the seriousness and the consequences of his conduct.

We also find that at no time was defendant subjected to any threats, promises, or coercion, psychological or physical, which improperly induced him to incriminate himself. Commonwealth v. Whitney, 511 Pa. 232, 241, 512 A.2d 1152, 1157 (1986) (“The line of distinction between a voluntary and an involuntary confession is that at which governing self-direction is lost and compulsion propels the confession.”); see also, Commonwealth v. Jones, 546 Pa. 161, 178, 683 A.2d 1181, 1189 (1996) (fact that suspect was read Miranda rights immediately prior to making statement weighed in favor of finding voluntariness). To the contrary, defendant’s denials and evasive responses to the officers, corrected only when confronted with contrary evidence, indicate strongly that defendant retained the ability to independently evaluate his situation and that his decision to confess was the product of a rational and free choice.

Although we believe that defendant does indeed have learning difficulties, we are not convinced that defendant was intellectually incapable of giving a knowing, intelligent, and voluntary statement. “The mental age and condition of [a defendant] are serious considerations, but a low I.Q. and limited education are not in themselves sufficient to render the confession involuntary.” Brown, 400 Pa. Super. at 328, 583 A.2d at 811. (citation and quotation marks omitted) A defendant need not have the training of a lawyer or the raw intelligence of a genius to be able to knowingly and intelligently waive his Miranda rights. “The test is whether he had sufficient mental capacity at the time of giving his statement to know what he was saying and to have voluntarily intended to say it.” Commonwealth v. Smith, 447 Pa. 457, 460, 291 A.2d 103, 104 (1972) (applying the test to a situation where defendant claimed he was too intoxicated to understand the Miranda warnings). On this point, viewing the totality of the circumstances, we find defendant’s waiver of his Miranda rights to have been voluntarily, knowingly and intelligently given.

Miranda Rights — When Applicable (Custodial Interrogation)

Implicit in defendant’s claim that his Miranda waiver was invalid is that Miranda warnings were required and, therefore, that he was in custody at the time he was questioned by the police. See Commonwealth v. Umstead, 916 A.2d 1146, 1152 (Pa. Super. 2007) (stating that Miranda is not implicated unless the individual is in custody and subjected to interrogation), appeal denied, 593 Pa. 733, 929 A.2d 645 (2007); see also, Miranda, 384 U.S. at 444 (defining a custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way”). With the defendant’s underlying premise, we are not in full agreement.

“The test for determining whether a suspect is being subjected to custodial interrogation so as to necessitate Miranda warnings is whether he is physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation.” Commonwealth v. Chacko, 500 Pa. 571, 577, 459 A.2d 311, 314 (1983) (citations omitted); see also, Commonwealth v. Boczkowski, 577 Pa. 421, 447, 846 A.2d 75, 90 (2004). “[T]he test is not what the police intended but rather the reasonable impression conveyed to the person subjected to the seizure.” Commonwealth v. Rodriguez, 330 Pa. Super. 295, 307, 479 A.2d 558, 565 (1984). (citation omitted)

“Police detentions only become custodial when, under the totality of the circumstances, the conditions and/or duration of the detention become so coercive as to constitute the functional equivalent of formal arrest. Factors which may be considered include the basis, duration, location, and method of detention, as well as the investigative methods used. See also, Commonwealth v. Holcomb, 508 Pa. 425, 498 A.2d 833 (1985) (suggesting consideration of whether defendant goes to the police station voluntarily, and whether he is informed that he is free to leave).” Brown, 400 Pa. Super. at 325, 583 A.2d at 810. (citations and quotation marks omitted) “[T]he mere giving of Miranda [warnings] does not signal arrest.” Rodriguez, 330 Pa. Super. at 307 n.8, 479 A.2d at 564 n.8.

Here, defendant was under no outward compulsion to go to the police station. He volunteered to do so after being told by the police that he was not under arrest. While at the police station, defendant manifested all of the signs of a person who was contrite and wanted to cooperate. Not once did defendant, ask that the questioning stop or did he request an attorney. Consistent with this appearance, defendant testified that during the time he was questioned at the station, he believed at all times he was free to leave.

At the time the police began their questioning of the defendant, it was evident that the police were investigating and seeking information regarding suspicious fires in the borough. It must also have been clear to the defendant early on — when the discrepancy between his reported whereabouts earlier in the day and the spotting of his vehicle in Germantown was brought to his attention — that he was a possible suspect. Knowing this, knowing also — as only he could — his own feelings of remorse and guilt for what he had done, and knowing further that he was at a crossroads and needed to make a choice between accepting responsibility for his actions and continuing to deny the intrinsic irony, and tragedy, of being a fire fighter responsible for setting the fires he fights, defendant decided it was in his best interest to fully cooperate.

Only after defendant confessed and admitted his involvement was defendant formally arrested and taken before a district justice for arraignment. At some point before this occurred and after defendant began to incriminate himself, it would have been reasonable for him to conclude that he was no longer free to leave. That he did not do so militates against us finding that he was reasonably and subjectively in custody prior to being arrested. That neither Klitsch nor Schatz restricted his movements nor exercised control over him prior to his arrest likewise precludes a finding that he was in the physical custody of the police beforehand. Only after the decision to charge and transport the defendant to the district justice’s office was made and conveyed to him, did defendant’s status shift from that of a suspect being questioned and volunteering information to that of a suspect in custody about to be charged and under arrest.

Miranda Rights — Right to Counsel

To the extent defendant also argues that his privilege against self-incrimination was violated because he was questioned while in custody and after requesting the assistance of counsel, we reject both the factual and legal predicates on which this argument is made and find it to be without merit. A defendant’s right to counsel encompassed within the Fifth Amendment privilege against self-incrimination is a judicially created procedural right dependent upon the defendant being subjected to custodial interrogation. Commonwealth v. Arroyo, 555 Pa. 125, 133 and 141, 723 A.2d 162, 166 and 170 (1999). Defendant was not in custody at the time the statements in issue were made, and Miranda warnings were not necessary. Additionally, we have accepted as credible Klitsch’s testimony that defendant never requested an attorney.

CONCLUSION

In accordance with the foregoing, we hold that the Commonwealth has met its burden of proving by a preponderance of the evidence that defendant’s confession was voluntary, and knowingly and intelligently given. Defendant’s omnibus pretrial motion to suppress will be denied, and the statements he made while questioned by Trooper Klitsch and Detective Schatz on December 5, 2006, will be admissible at trial.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (prior to custodial interrogation, suspect must be advised that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of counsel, and that counsel would be appointed if he could not afford an attorney).

      . “The question of voluntariness is not whetherthe defendant would have confessed without interrogation, but whether the interrogation was so manipulative or coercive that it deprived the defendant of his ability to make a free and unconstrained decision to confess.” Commonwealth v. Nester, 551 Pa. 157, 163, 709 A.2d 879, 882 (1998). “[T]he totality of the circumstances, including any alleged inducement, must be considered in evaluating the voluntariness of a confession.” Commonwealth v. Templin, 568 Pa. 306, 309, 795 A.2d 959, 961 (2002). The standard for measuring whether a confession is voluntary is not the narrow “but for” test (i.e., would the defendant have confessed but for the threat or promise), implied by Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897), quoted below, and apparently relied upon by the defendant, but a review based on the totality of the circumstances. See Nester, 551 Pa. at 165, 709 A.2d at 883.
      “[A] confession, in order to be admissible, must be free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.... A confession can never be received in evidence where the prisoner has been influenced by any threat or promise.” Bram, 168 U.S. at 542-43, 18 S.Ct. 186-87. (emphasis added)
      “The United States Supreme Court has explicitly declared that the quoted passage from Bram is not the correct standard for determining the voluntariness of a confession, instead the totality of the circumstances determine voluntariness.” Nester, 551 Pa. at 164, 709 A.2d at 883 (citing Arizona v. Fulminante, 499 U.S. 279, 285, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)); see also, Templin, 568 Pa. at 313-14, 795 A.2d at 964.

        Defendant’s argument that the statements he made were unlawfully induced and coerced by a promise made at the Fairview Hose Company to return him to the station after he was questioned cannot stand because the promise was not coercive or misleading in any way. The police did not know beforehand what defendant was going to say, or that he would implicate himself in these offenses. A voluntary confession by a defendant that he committed an offense establishes probable cause to arrest. Commonwealth v. Edmiston, 535 Pa. 210, 228, 634 A.2d 1078, 1087 (1993). More importantly, the officers neither promised leniency if defendant confessed nor threatened to file charges or arrest him if he did not. Cf Nester, supra, (discussing that a confession extracted as a quid pro quo for a promise of leniency must be carefully examined in evaluating the voluntariness of the confession; also holding that an offer to assist a defendant in getting treatment, not conditioned on the defendant’s confession, is not improperly coercive). “Encouraging a suspect to cooperate with the investigation and answer questions honestly is a permissible interrogation tactic.” Id. at 167, 709 A.2d at 884.
      Additionally, we find credible the officers’ testimony that defendant’s statements to them were made in their presence, without threats or deception, and we find no credibility in defendant’s testimony at the suppression hearing that there was present in the police station, outside of the interview room, an unidentified police officer who threatened to harass him if he did not confess.


author: ZULICK, J,

text:
    Fuhr v. Fuhr

      William M. Blaum, for plaintiff.

      Frederick Paul Fahr, pro se.
    January 24, 2008
   ZULICK, J,

— These are exceptions filed by both parties from the master’s report and recommendation in divorce. Caroline Dimson Fuhr (Wife) and Frederick Paul Fuhr (Husband) were married on March 31, 1991. They separated between December 2004 and January 2005. The parties have three children together: Katherine Nicole, born August 8, 1988; Marian Marie, bom June 19, 1990; and Gabriela Rita, born September 7, 1993. Wife has primary physical custody of the two minor children pursuant to a court order dated December 14, 2005.

Wife filed a complaint in divorce on June 2,2005. The parties entered into a stipulation of settlement before Divorce Master Daniel M. Corveleyn, Esquire, on August 8, 2006. The stipulation was subject to Husband’s ability to refinance the first and second mortgages on the marital home at 97 Fairview Avenue, Mount Pocono, Monroe County, Pennsylvania. Husband was unable to obtain refinancing, so a full evidentiary hearing was held before Attorney Corveleyn on January 16, 2007. The master filed his report, which included attached affidavits of consent, on August 9, 2007. Master’s report exhibits A and B. Husband and Wife both filed exceptions and appeared at oral argument on December 3, 2007.

In Pennsylvania, “a master’s report and recommendation, although only advisory, is to be given the fullest consideration, particularly on the question of credibility of witnesses, because the master has the opportunity to observe and assess the behavior and demeanor of the parties.” Moran v. Moran, 839 A.2d 1091, 1095 (Pa. Super. 2003) citing Simeone v. Simeone, 380 Pa. Super. 37, 50, 551 A.2d 219, 225 (1988). However, “the reviewing court is not bound by it and it does not come to the court with any preponderate weight or authority which must be overcome.” Rothrick v. Rothrick, 765 A.2d 400, 404 (Pa. Super. 2000) citing Arcure v. Arcure, 219 Pa. Super. 415, 416, 281 A.2d 694, 695 (1971).

“[Although the master’s report is entitled to great weight, it is the responsibility of the court to make the final [equitable] distribution.” Trembach v. Trembach, 419 Pa. Super. 80, 84, 615 A.2d 33, 35 (1992) citing Morschhauser v. Morschhauser, 357 Pa. Super. 339, 516 A.2d 10 (1986). In addition, the court must keep in mind the legislature’s intent “to effectuate economic justice between the parties.” Perlberger v. Perlberger, 426 Pa. Super. 245, 265, 626 A.2d 1186, 1196 (1993), citing 23 Pa.C.S. §3102(a)(6).

WIFE’S EXCEPTIONS TO REPORT OF DIVORCE MASTER

Wife’s various objections were condensed into eight arguments discussed in her brief. I will address each one in turn.

(1) Wife contends that the master erred in the apportionment ofmarital property and marital debt, including crediting Wife with the Bank of America account, the Commerce Bank account, a $3,000 credit for personal property, and a $600 credit for a 1990 Volvo which was sold by Husband.

I begin by noting that Wife was not credited $600 for Husband’s sale of the 1990 Volvo. The Volvo was credited to Husband as distribution in kind. See schedule of distribution attached to master’s report. Wife also argues that the 1990 Volvo should have been credited to Husband at its Blue Book value of $3,075. Plaintiff’s brief in support of exceptions to divorce master’s report and recommendation 7. The master, however, found Husband’s testimony credible that the vehicle had “a leaking sunroof, and considerable mold in the interior.” Master’s report 15-16. These defects would significantly decrease the vehicle’s value, and I find that the master did not err in valuing the vehicle at the price for which it was sold.

The Commerce Bank account was solely in Wife’s name. Defendant’s exhibit 3. As of December 22,2004, the statement date closest to the date of separation, the account had a balance of $1,588.01. Id. Wife claims that the master erred in assigning a value of $1,588 to the account because the funds “were a loan from her cousin, George Morris, to purchase a home in Mount Pocono.” Plaintiff’s brief 7. Wife provided no evidence, however, to support her testimony regarding the loan and admitted that Butter Krust Bakery also deposited her wages into this account. Id. 8; Defendant’s exhibits 2-3. Wages are not excluded from marital property. 23 Pa.C.S. §3501. Without any evidence to verify the existence, amount, or terms of the loan, the master did not err in apportioning the Commerce Bank account to Wife in the amount it contained at the time of the parties’ separation.

Wife avers that the master erred in assigning a value of $1,361 in a Bank of America account to her. The master acknowledged Wife’s testimony that Husband removed all of the funds from the account and did not give any to her. Master’s report 17; Notes of Testimony from master’s hearing (N.T.) 33-34. Wife testified that there was approximately $ 1,3 00 in the account when the parties separated. N.T. 34. Husband did not contradict this fact. Husband admitted that he transferred that money to a separate account in his own name. Id. at 180-81; plaintiff’s exhibit 19. Consequently, I find that the master erred in crediting Wife with distribution of the funds in this account when Husband acknowledged dissipation of the funds. The account should have been credited to Husband as a distribution in the amount of $1,361.

Wife testified that the furnishings in the house included bedroom furniture, a sofa, a dining room table and chairs, and a washer and dryer. N.T. 25-27. She could not place a definite value on the property, but she believed it would exceed $10,000. Id. at 102. Although Husband testified that he thought it would cost $ 1,200 to move the property from the house, he provided no information about the actual value of the personal property. Id. at 128. Based on the testimony of Husband and Wife, the master assigned a value of $3,000 to the property. Master’s report 17.

Wife did not list the personal property on her inventory and appraisal. Id. at 16. Given that the master stated that he “has no information regarding the actual value of the personal property in the home,” Husband apparently did not list the home furnishings on his inventory and appraisal, either. Id. A party may be estopped, except for good cause shown, from testifying to the value of property not included on the inventory and appraisal. See Pa.R.C.P. 1920.33(d)(1). When neither party includes property on their inventories, this oversight “can only be attributed to the lack of knowledge or an unawareness of the true nature of the property, which is a sufficient basis for finding good cause shown.” Anderson v. Anderson, 822 A.2d 824, 829 (Pa. Super. 2003). In Anderson, however, the property at issue was an antique collection that had appreciated $30,000 in the course of the marriage. Id. at 827. The personal property involved here is the kind that would be found in any home. The master erred in assigning a value to this property when it was not listed on either party’s inventory and appraisal and the master had insufficient information to value it. Each party is entitled to the personal property in their possession, but no value will be assigned to it due to lack of sufficient evidence. See id. at 826.

Finally, Wife maintains in her first exception that she should be awarded a larger portion of the marital property. Plaintiff’s brief 5. The master awarded 55 percent of the marital property to Wife and 45 percent of the marital property to Husband. Schedule of distribution attached to master’s report. The factors to be considered in determining an equitable distribution are:

“(1) The length of the marriage.

“(2) Any prior marriage of either party.

“(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.

“(4) The contribution by one party to the education, training or increased earning power of the other party.

“(5) The opportunity of each party for future acquisitions of capital assets and income.

“(6) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.

“(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.

“(8) The value of the property set apart to each party.

“(9) The standard of living of the parties established during the marriage.

“(10) The economic circumstances of each party at the time the division of property is to become effective.

“(10.1) The federal, state and local tax ramifications associated with each asset to be divided, distributed or assigned, which ramifications need not be immediate and certain.

“(10.2) The expense of sale, transfer or liquidation associated with a particular asset, which expense need not be immediate and certain.

“(11) Whether the party will be serving as the custodian of any dependent minor children.” 23 Pa.C.S. §3502.

Wife has custody of two minor children and worked only part-time for the first 10 years of her marriage to Husband. N.T. 18. Husband earned a yearly income in excess of $100,000 for a few years of the marriage. Id. at 160-61. Currently, however, Husband is now unemployed. Husband earned $38,983 in 2004. Plaintiff’s exhibit 11. The jobs for which he is considered a competitive candidate now generally pay between $30,000 and $3 5,000 per year. N.T. 150. Wife is working full-time and plans to continue doing so. Id. at 22-23. The children are all teenagers; their care should not significantly affect Wife’s ability to work full-time. Between 2004 and 2006, Wife earned between $14,000 and $19,000 per year. Plaintiff’s brief 6. Husband is 20 years older than Wife and not likely to have the same earning capacity he had for some period during the marriage. In light of these circumstances, I find that the master did not err in dividing the marital property.

(2) Wife contends that the divorce master erred by failing to recommend that Husband be credited an amount for the personal property he retained.

As I discussed during Wife’s exception to the master’s $3,000 valuation of personal property in the home, each party is entitled to retain the personal property in their possession. I will not assign a dollar amount to the property, however, without evidence. No testimony was introduced regarding the value of Husband’s personal property.

I will affirm the master’s decision not to credit Husband for personal property he retained beyond the two motor vehicles he was awarded in equitable distribution.

(3) Wife contends that the master erred in failing to recommend that specific debts, liens, and/or credit cards are the responsibility of Husband or Wife.

The master divided the marital debt 50/50 between Husband and Wife, but he did not assign specific credit accounts to either party. Schedule of Distribution attached to Master’s report. Both parties were using credit during their marriage and there is no way to determine who incurred specific charges. The Target Visa was the only individual account, but Wife used the card for the children and to make house and car payments. N.T. 57. The master believed Wife’s testimony because he included the Target card as marital debt. I find, therefore, that the master did not err in making each party responsible for 50 percent of the debt incurred through the use of these cards during their marriage.

Husband and Wife should be individually accountable for their credit obligations from this point forward. The parties’joint debt should be eliminated through equitable distribution, if possible. The master determined the amount of marital debt, and then apportioned the debt on an equal basis. However, he did not assign specific debt to either party.

The master also directed Wife to pay Husband the sum of $10,242 within 60 days of the date of the divorce decree, to balance Wife’s share of distribution with Husband’s share. Wife has taken exception to this, suggesting that since the parties have extensive marital debt, the better distribution would be to assign her a portion of Husband’s share of the debt. I will grant this exception, and assign Wife marital debt instead of requiring her to pay cash to buy out Husband’s interest in marital property. This eliminates the possibility that Wife will pay Husband cash which Husband does not use to retire his share of joint marital debt. Under that scenario, Wife could pay Husband but continue to be responsible to creditors for Husband’s share of their marital debt. By assigning Wife this debt, and requiring her to eliminate Husband’s liability for it, Husband leaves the marriage with greatly reduced debt, and can force the sale of the house in the event that Wife does not satisfy his marital debt obligation assigned to her.

Wife shall be solely responsible to pay the following marital debt:

Capital One Visa— 1,836.

S ears Gold Mastercard— 4,171.

Direct Merchant’s— 11,665.

Target Visa— 1,917.

2006 Real Estate taxes— 2.800.

Total 22,389.

Husband shall be solely responsible to pay the following marital debt:

Shell Citicorp— 800.

The parties shall be given six months to refinance or satisfy these debt obligations to remove the other party’s liability on the accounts. Husband will provide Wife with a special warranty deed to the marital property at the time Wife satisfies the existing mortgages and marital debt distributed to her. In the event that Wife has not refinanced the debt and the joint mortgages secured by the parties’ marital residence within that six month period, Husband may petition the court to force the sale of the marital residence. The proceeds of that sale shall be used first to pay the parties’ ordinary costs of sale, secured debt, and marital unsecured debt. Any remaining net proceeds of sale shall be divided between the parties in the 55/45 shares determined by the master.

(4) Wife contends that the master erred in recommending that Wife make a $10,242payment to Husband instead of offsetting the payment against marital property.

Wife argues that the master should have assigned her a larger portion of the marital debt instead of recommending that she pay Husband. Plaintiff’s brief 9. This exception has been granted as described previously.

(5) Wife contends that the master should have reduced the equity in the marital residence to reflect appropriate costs for the sale of the property.

Wife has no current plans to sell the marital residence. Plaintiff’s brief 11. In not including the cost of sale in his valuation, the master stated that “plaintiff strenuously assured the master that she could remain in the home and pay for all the expenses” and that she would “not be placing the home on the market for sale.” Master’s report 14.

Wife argues that the “law does not require that the sale of the home be immediate and/or foreseeable” for a court to adjust the equity for the cost of sale. Plaintiff’s brief 11. This does not mean, however, that sale expenses must be used to calculate the equity in a marital residence. It is simply one factor to be weighed “in such manner as the court deems just.” 23 Pa.C.S. §3502(a). Given Wife’s clear intention not to sell the home, the master did not err in failing to deduct the cost of sale from the equity in the marital property.

Should the house be sold, as discussed above, because Wife is unable to refinance the parties’ marital debt to remove Husband’s liability, the costs of sale will be paid first before any distribution to the parties.

(6) Wife contends that the divorce master erred in failing to credit Wife with fair rental value of the marital property.

The master did not award Wife the fair rental value of the property while Husband was in exclusive possession because, “unfortunately, there was no testimony at the hearing provided by a qualified real estate broker that established the fair rental value of this house” and “the master can only decide based upon valid and reasonable testimony and evidence presented at the hearing.” Master’s report 15. Wife proposed a fair rental value simply by multiplying the fair market value of the property by one percent, but such a formula was not verified or supported by anyone in the field of real estate. Id. at 14-15; Plaintiff’s brief 12. Whether to award fair rental value “is within the sound discretion of the trial court.” Gaydos v. Gaydos, 693 A.2d 1368, 1377 (Pa. Super. 1997). Without any evidence, I cannot assign a fair rental value to the property while Wife was not living there.

I will affirm the master’s decision not to award Wife half of the fair rental value of the property.

(7) Wife contends that the master erred in failing to award her attorney’s fees and costs.

In a divorce action, attorney’s fees are not awarded to either party automatically. Johnson v. Johnson, 365 Pa. Super. 409, 415, 529 A.2d 1123, 1126 (1987). A party must demonstrate that he or she has actual need of attorney’s fees and that this award is essential to “put the parties ‘on a par’ in defending their rights or in allowing a dependent spouse to maintain or defend an action for divorce.” Fitzpatrick v. Fitzpatrick, 377 Pa. Super. 268, 281, 547 A.2d 362, 369 (1988), citing Johnson. Courts must consider “the payor’s ability to pay, the requesting party’s financial resources, the value of the services rendered, and the property received in equitable distribution.” Perlberger v. Perlberger, 426 Pa. Super. 245, 284, 626 A.2d 1186, 1207 (1993).

Husband is currently unemployed, which hinders his ability to pay Wife’s attorney’s fees and court costs. Wife was awarded 55 percent of the marital assets, including the marital residence, which is the bulk of the marital estate. I find that an award of attorney’s fees and costs is unwarranted in this case.

I will affirm the master’s decision not to award attorney’s fees and costs to Wife.

(8) Wife contends the master erred in recommending that the 2006property tax be listed as a marital debt.

Wife asserts that the property tax is not marital debt because it was incurred after the parties separated and Wife had left the marital residence. Plaintiff’s brief 14. The definition of marital property excludes “[property acquired after final separation until the date of divorce, except for property acquired in exchange for marital assets.” 23 Pa.C.S. §3501(4). The property tax is tied to ownership of the marital residence, which clearly is a marital asset. In 2006, both parties were the owners of the property. I find, therefore, that both parties are responsible for paying the 2006 property tax on the marital residence.

I will affirm the master’s recommendation to list the 2006 property tax as a marital debt, with Husband and Wife each responsible for 50 percent of the tax.

HUSBAND’S EXCEPTIONS TO REPORT OF DIVORCE MASTER

Husband’s exceptions were not filed in a timely manner and are, therefore, deemed waived. See Pa.R.C.P. 1920.55-2(b). The master’s report was filed on August 9, 2007 and Wife filed exceptions on August 24, 2007. Husband had 20 days from the service of Wife’s exceptions to file his own exceptions, but he did not file them until November 28, 2007. See Pa.R.C.P. 1920.55-2(c).

To the extent that Husband requests that eachparty be granted 50 percent of the marital assets, I refer to the discussion above regarding Wife’s challenge to the master’s equitable distribution. Husband’s age, income, and earning capacity all were considered in reaching an equitable distribution.

DECREE

And now, January 24, 2008, it is ordered and decreed that:

(1) Carolyn Dimson Fuhr, plaintiff, and Frederick Paul Fuhr, defendant, are divorced from the bonds of matrimony.

(2) The recommendations of the master for equitable distribution of the parties’ marital property are approved and made apart of this decree, with the following amendments: Wife’s exceptions relating to:

(a) the master’s inclusion of a $3,000 credit for personal property;

(b) the master’s credit of the Bank of America account to Wife;

(c) the master’s direction that Wife pay cash to purchase Husband’s interest in the marital residence are sustained.

(3) A new schedule of distribution is attached to this decree, identifying marital property, the parties’ respective shares of that property, marital debt, the parties’ respective shares of that marital debt, and the obligation to pay the marital debt. The parties shall carry out this distribution of property and debt as set forth in the attached schedule.

(4) The court retains jurisdiction of any claims raised by the parties to this action for which a final order has not yet been entered.

(5) Any existing spousal support order shall hereafter be deemed an order for alimony pendente lite if any economic claims remain pending.

SCHEDULE OF DISTRIBUTION

1. Marital Property

Net equity in marital residence 28,269.

1989 Volvo 2,800.

600. 1990 Volvo sale proceeds

1,361. Bank of America account

1,588. Commerce Bank account

34,618. Total

55% to Wife= $19,040. 45% to Husband= $15,578.

II.Distribution of Marital Property

WIFE HUSBAND

Net equity in residence 28,269. 1989 Volvo 2,800.

Commerce Bank account 1.588. 1990 Volvo sale 600.

29,857. Bank of America acct. 1.361.

4,761.

Excess to Wife= $10,817. Shortage to Husband= ($10,817.)

III.Marital Debt

Capital One Visa 1,836.

Sears Gold Mastercard 4,171.

Direct Merchants 11,665.

Target Visa 1,917.

Shell Citicorp 800.

2006 real estate taxes 2,800.

Total 23,189.

Wife-50%= $11,595 Husband-50%= $11,595

IV.Distribution of Marital Debt

WIFE HUSBAND

Capital One Visa 1,836. Shell Citicorp 800.

Sears Gold Mastercard 4,171.

Direct Merchants 11,665.

Target Visa 1,917.

2006 real estate taxes 2.800.

Total $22,3 89.

      . I will address Wife’s second argument, that Husband should pay a larger percentage of the costs in the case, when I consider whether the master should have awarded Wife attorney’s fees and costs.

      . In order to avoid repetition, I will address the 2006 real estate taxes when I discuss Wife’s contention that this is not marital debt.

      . Husband testified that he paid $680 on the Shell credit card after separation. N.T. 127. Wife testified, however, that Husband subsequently placed more debt on the card. Id. at 38. No Shell card statements were introduced as exhibits. In the absence of any other evidence, the master’s assignment of marital debt on this card will stand.

      . This includes Wife’s argument, alluded to in her second exception, supra, that Husband should pay the cost of appraisal, the master’s fee, and the transcript fee. Plaintiff’s brief 8.

      . Wife is paying $22,389 in debt when her share was $11,595. She is paying $10,794 of Husband’s share of the debt. She will thus owe Husband $23 to complete the distribution. In the event that Wife is unsuccessful in removing Husband’s liability on this debt within six months, the marital home shall be sold, the secured and unsecured marital debt shall be paid from the proceeds of sale, and the parties shall divide the remaining proceeds 55 percent to Wife and 45 percent to Husband.