author: DiVITO, J,

text:
    Mollenhauer v. Glat

      October 3, 2006

      Barton A. Haines, for plaintiff.

      Timothy I. McCann, for defendant.
   DiVITO, J,

PROCEDURAL HISTORY

This instant medical malpractice action arose out of a lawsuit filed by the parents of Leah Mollenhauer against Paul M. Glat M.D. on her behalf, for injuries allegedly caused by the doctor while treating Leah for a congenital defect. The matter was tried before this court and a jury in September of2005. At the conclusion of the trial, the jury awarded Leah $550,000.

Following the recording of the verdict, both parties filed post-verdict motions, which this court denied. Appeals were thereafter filed by both parties as were requested 1925(b) statements.

FACTUAL HISTORY

Plaintiff, Leah Mollenhauer, was bom on October 15, 1999. At the time, she was diagnosed as having a cleft palate and Pierre Robins sequence, a condition which results in certain facial abnormalities, including a small jaw, a recessed chin, and a mispositioned tongue that obstructs the air passage.

Following her birth, her parents, Donna and Frank Mollenhauer, had her seen by Paul M. Glat M.D. at St. Christopher’s Flospital in Philadelphia. Dr. Glat, a plastic surgeon, was the head of the cleft palate group at St. Christopher’s Hospital.

On account of her malpositioned tongue, Leah was prone to suffering blockages of her air passageway. Her parents, however, by the use of various techniques and careful positioning of Leah, were able to alleviate the problem.

On November 10,1999, while driving Leah to see Dr. Glat, Leah suffered a blockage of her airway, which was caused by the fact that she was required to sit upright in a car seat for the ride to Dr. Glat’s office. The situation was quickly ameliorated by Mrs. Mollenhauer, who was able to get Leah to breath normally again by placing her across her (Mrs. Mollenhauer’s) knee and through the administering of oxygen to Leah.

As a result of the incident, Dr. Glat recommended to the Mollenhauers that Leah undergo a tongue-lip adhesion, a procedure whereby the patient’s tongue is sutured to his or her lower lip, where it is held in place by strong sutures and a button. The procedure causes some physical deformations and has a high failure rate.

The surgery was performed on November 11, 1999, after which Leah was sent home. On November 16,1999, the button came loose, which prompted Mrs. Mollenhauer to contact Dr. Glat. He advised her to bring Leah in to see him the next day.

On November 19, 1999, Dr. Glat performed a procedure on Leah for the purpose of inserting a device that would keep Leah’s tongue in a forward position. During the surgery, he, without having informed Mr. and Mrs. Mollenhauer, removed all of the sutures he had put into place during the previous surgery.

On November 23,1999, Leah underwent a procedure to insert the device. The procedure failed because the device could not be inserted correctly. Dr. Glat tried again the next day to insert the device. This attempt failed as well. As a consequence, he performed a second tongue-lip adhesion on Leah. The surgery lasted over five hours. As with the first procedure, eventually it failed. The button in Leah’s tongue moved forward; the sutures holding it in place cut a path through her tongue. When contacted and informed of this, Dr. Glat stated that the migration of the button was a positive sign insofar as it meant that Leah’s jaw was growing and she, therefore, would outgrow her breathing problems. He thereafter advised the Mollenhauers to remove the button and suture holding it in place from Leah’s tongue when it reached the tip of her tongue.

Subsequent thereto, after Dr. Glat recommended that Leah undergo more surgery, the Mollenhauers took Leah to Children’s Hospital of Philadelphia, where her cleft palate was repaired and she underwent several surgical procedures, the purpose of which were to repair the physical damage caused to Leah as a result of the procedures she underwent while under Dr. Glat’s care. As a direct result of Dr. Glat’s regimen and choice of care, Leah suffered extensive and permanent scarring as well as speech impediments. She also had to undergo several surgeries to correct the damage caused by Dr. Glat during the surgeries he performed.

DISCUSSION

Claims Raised by Defendant, Dr. Glat

In his 1925(b) statement, Dr. Glat first complains that this court erred in permitting plaintiff’s expert witness, William Clark M.D., to testify about post-operative care of persons who have undergone a tongue-lip adhesion procedure because the subject was beyond the ken of his knowledge. He further argues that it was error to permit Dr. Clark to testify about the standard of care applicable to a plastic surgeon because Dr. Clark was not a plastic surgeon but an otolaryngology/ENT physician. According to Dr. Glat, since Dr. Clark never performed the aforementioned procedure, never cared for post-surgery persons who had, and was not a plastic surgeon, he lacked the necessary expertise to render an opinion about the care Dr. Glat provided Leah. Dr. Glat further claims that the Medical Care Availability and Reduction of Error Act, specifically 40 Pa.C.S. §1303.512, precluded Dr. Clark from testifying.

Having carefully reviewed the issues raised by Dr. Glat, it is this court’s opinion that they should be deemed meritless. With regard to Dr. Glat’s claim that the matters about which Dr. Clark testified were outside the scope of his knowledge, the record shows that Dr. Clark was a member of a board similar to the board encompassing plastic surgery, namely, the American Academy of Facial Plastic and Reconstruction Surgery. He also was board-certified in surgery. (N.T. 9-8-04, pp. 37-39.) In addition, Dr. Clark indicated that he had been involved in about 50 or 60 cases involving Pierre Robins sequence and that he was familiar with the care and treatment of such individuals. (N.T. 9-8-04, pp. 41-44.) In view of the foregoing, it is clear that Dr. Clark possessed the requisite degree of knowledge and experience to render him capable of expressing an opinion, both about Dr. Glat’s decision to perform the tongue-lip adhesion on Leah and the standard of care he provided her. Thus, this claim should be dismissed as meritless.

Dr. Glat’s second claim should also be dismissed as meritless. This is so because 40 Pa.C.S. §1303.512 does not preclude a trial court from determining whether an expert witness is qualified to testify and does not prevent an expert witness, whose area of specialty may not be identical to the doctor whose care is being scrutinized, from testifying as an expert witness. This was made clear in the case of Smith v. Paoli Memorial Hospital, 885 A.2d 1012 (Pa. Super. 2005), wherein we find:

“In addressing the admissibility of the internist’s testimony, the Herbert [v. Parkview Hospital, 854 A.2d 1285 (Pa. Super. 2004)] panel focused on the language of the MCARE Act requiring that the expert be familiar with the standard of care for the specific care at issue and practice in the same or a substantially similar sub-specialty which has a substantially similar standard of care for the specific care at issue. Id. at 1292, quoting 40 P.S. §1303.512(c)(1) and (2). (emphasis in Herbert) According to the internist, any physician with specialized training and certification in internal medicine, of which nephrology is a subspecialty, should have noted anomalies in patient’s behavior and the notes in the chart concerning patient’s symptoms and behavior and concluded that patient’s respiratory problems needed immediate attention. Id. at 1292-93.

“As the Herbert panel opined, ‘the MCARE Act plainly prefers, and in some cases may require, that expert testimony in professional medical malpractice cases come from witnesses with expertise in the defendant’s particular subspecialty.’ Id. at 1294, citing 40 RS. §1303.512(c). The Herbert panel declined to hold that the Act required that testimony in all cases be so restricted, observing, ‘The “same subspecialty” ideal contained in section 1303.512(c)(2) includes an express caveat, reflecting the legislature’s decision to afford the trial court discretion to admit testimony from a doctor with expertise in another specialty that ‘has a similar standard of care for the specific care at issue. ’” Herbert, 854 A.2dat 1294, quoting40P.S. §1303.512(c)(2). (emphasis in Herbert)

“According to Herbert, ‘This reading comports with Pennsylvania courts’ historical deference to trial courts’ discretion in deciding whether to admit evidence at trial and is consistent with the plain language of the statute itself. ’ Id. As this court observed in Herbert, ‘Indeed, the wisdom of restricting expert testimony to that of a nephrologist in this case might credibly be questioned, where “the specific care at issue” is the failure to provide care in the presence of an allegedly clear respiratory problem the likes of which [internist] testified should have been obvious to [nephrologist].’ Id. (emphasis in Herbert)

“We recognize the analytical distinctions between this case and Herbert, as gastroenterology is not a subspecialty of oncology or general surgery. It is, however, a sub specialty of internal medicine, in which Dr. Krutchik is board-certified. Furthermore, Dr. Battle’s credentials as a general surgeon specializing in, inter alia, gastrointestinal surgery, who kept current with the field of gastroenterology in part by maintaining membership in the American Society of Gastrointestinal Endoscopy, which publishes a journal Dr. Battle received for 30 years, indicate his subspecialty is similar to that of gastroenterologists for the specific care at issue. As a panel of this court recently observed in the context of a psychiatrist whose testimony was excluded when he was called as an expert [witness] to testify as to the standard of care applicable to a resident who prescribed intravenous Ativan to treat a patient’s anxiety, ‘It is clear that the excluded testimony concerns the standard of care applicable to any physician who prescribes Ativan to treat anxiety.’ Campbell v. Attanasio, 862 A.2d 1282, 1289 (Pa. Super. 2004) (emphasis in Campbell), appeal denied, 584 Pa. 684, 881 A.2d 818 (2005), and appeal denied, 584 Pa. 684, 881 A.2d 818 (2005).” Smith, 885 A.2d at 1020-21. (emphasis in original)

Instantly, Dr. Clark testified that he had extensive experience with patients having the same syndrome as Leah, as well as with the recommended course of treatment and care for such patients. In addition, his area of specialty was sufficiently similar to Dr. Glat’s, such that he not only was competent to render an opinion about the standard of care provided by Dr. Glat, but was also to meet the standards set forth in 40 Pa.C.S. §1303.512 for expert witnesses. In view of the foregoing, it is clear that this claim lacks merit and it should be denied.

In his remaining four issues, Dr. Glat asserts that this court committed reversible error by refusing to give the jury certain closing instructions he requested. He claims that this court should have instructed the jury on the following points of law:

(1) The “Two Schools of Thought” doctrine;

(2) That a doctor is not a warrantor of a cure or a guarantee of a successful result;

(3) That an unfortunate outcome or result, by itself, cannot be evidence that a doctor failed to exercise reasonable care; and

(4) That an unexpected or unfortunate result is neither proof of negligence nor negligence.

Review of each of these issues is governed by the following standards:

“In examining these instructions, our scope of review is to determine whether the trial court committed clear abuse of discretion or error of law controlling the outcome of the case. Williams v. Philadelphia Transportation Company, 415 Pa. 370, 374, 203 A.2d 665, 667 (1964). Error in a charge is sufficient ground for a new trial, if the charge as a whole is inadequate or not clear or has a tendency to mislead or confuse rather than clarify a material issue. Glider v. Commonwealth, Department of Highways, 435 Pa. 140, 151-52, 255 A.2d 542,547 (1969). A charge will be found adequate unless ‘the issues are not made clear to the jury or the jury was palpably misled by what the trial judge said or unless there is an omission in the charge which amounts to fundamental error.’ Voitasefski v. Pittsburgh Railways Co., 363 Pa. 220, 226, 69 A.2d 370, 373 (1949); areviewing court will not grant a new trial on the ground of inadequacy of the charge unless there is a prejudicial omission of something basic or fundamental, Sweeny v. Bonafiglia, 403 Pa. 217, 221, 169 A.2d 292, 293 (1969); Giorgianni v. DiSanzo, 392 Pa. 350, 356, 140 A.2d 802, 805 (1958). In reviewing a trial court’s charge to the jury, we must not take the challenged words or passage out of context of the whole of the charge, but must look to the charge in its entirety. McCay v. Philadelphia Electric Company, 447 Pa. 490, 499, 291 A.2d 759, 763 (1972).” Stewart v. Motts, 539 Pa. 596, 606, 654 A.2d 535, 540 (1995).

Applying the foregoing standards to Dr. Glat’s claims, it is clear to this court that Dr. Glat’s requests that the jury be charged on the above principles of law were properly denied. With respect to his claim that the jury should have been charged on the “two schools of thought” doctrine, the record shows that the issue in the case did not concern whether there was more than one course of treatment available, but rather, whether Dr. Glat should have performed surgery at all without first attempting a more conservative treatment approach. Both Dr. Glat and his expert witness agreed with plaintiff’s expert that the standard of care with respect to patients with Pierre Robins syndrome is to first attempt to alleviate the problems associated with the syndrome by using a conservative medical approach, i.e., by employing non-surgical techniques. Surgery is appropriate, according to the experts, only if the conservative approach fails. It is at that time that various treatment options become available and the experts diverge as to what course of treatment is more effective. Insofar as there was no disagreement amongst the litigants as to what the initial standard of care should have been, it is clear that the “two schools of thought” doctrine did not apply and that no error occurred in denying Dr. Glat’s request that the jury be instructed with respect thereto. See generally, Choma v. Iyer, 871 A.2d 238, 241 (Pa. Super. 2005). (Where course of treatment not in dispute, doctrine does not apply.)

Regarding Dr. Glat’s remaining exceptions to this court’s jury instructions and its refusal to charge the jury on the points of law referred to above, Dr. Glat has failed to provide this court with any authority stating that such instructions are mandatory and must be given to the jury, and that the failure to do so constitutes reversible error. This is fatal to this claim. It is noted that a review of the jury instructions the jury was given demonstrated that they adequately and accurately defined and described the law for the jury. As such, the charge met the dictates of the law and Dr. Glat is entitled to no relief with respect thereto. Accordingly, his claims concerning this court’s jury charge should be found meritless.

PLAINTIFF’S CLAIMS

Plaintiff complains that this court erred when it refused to permit the jury to consider Leah’s medical expenses as an item of damages. The claim is meritless because Pennsylvania law is clear that a minor may not recover his or her medical expenses, as such a cause of action rests with a minor’s parents. Haithi v. Krestown Park Apartments, 385 Pa. Super. 613, 561 A.2d 1261 (1989). Furthermore, plaintiff’s parents failed to plead this claim in their complaint. Accordingly, plaintiff’s claim with respect to this issue should be denied.

CONCLUSION

Based on the foregoing, the judgment entered in this matter should be affirmed.

      . The “Two Schools of Thought” doctrine involves the situation where competent medical authority is divided as to the appropriate course of treatment. Choma v. Iyer, 871 A.2d 238 (Pa. Super. 2005). In such situations, a doctor is not negligent if he followed “a course of treatment advocated by a considerable number of recognized and respected professionals in his given area of expertise.” Jones v. Chidester, 531 Pa. 31, 40, 610 A.2d 964, 969 (1992). The burden of proving the applicability of the doctrine rests with the party advocating for its use, Tesauro v. Perrige, 437 Pa. Super. 620, 650 A.2d 1079 (1994).


source: Caselaw Access Project

author: HODGE, J.,

license: Public Domain

text:
    Grannis v. Lopez

      January 8, 2007

      Joseph J. Kearney, for plaintiffs.

      Mark Krochka, for defendants.
   HODGE, J.,

Before the court is an emergency petition for special relief, filed by James Grannis Sr. and Ginger Grannis, (grandparents), versus Stacey Grannis Lopez (Mother) and Shawn Michael Trott (Father).

The background of this case is as follows. The minor child, [ ], was bom March 23, 2002, out of wedlock, to Stacey Grannis Lopez and Shawn Michael Trott. The parents were never married, and the mother is now married to Peter Lopez IV.

The plaintiffs, James Grannis Sr. and Ginger Grannis, husband and wife, are the maternal grandparents of the minor child.'

The testimony established that on or about February 23, 2006, the natural mother, Stacey Grannis Lopez, signed an authorization and consent granting temporary guardianship of the minor child to her parents. See petitioner’s exhibit no. 1. The mother’s testimony at the hearing was to the effect that she was having legal and drug problems at the time, and wanted her parents to be able to transport the child to Head Start and to the doctor until such time as she resolved her problems.

After delivering the child to her parents in February of2006, the mother saw the child on a sporadic or intermittent basis until late May of 2006.

The natural father has had very little contact, if any, with the minor child. While present for the hearing, he is currently incarcerated in the Lawrence County Jail, and has had virtually no relationship with the minor child nor interest in these proceedings.

The respondent/natural mother produced a letter from Discovery House, a methadone clinic located in Cranberry Township, Pennsylvania. See respondent’s exhibit no. A. She has been a client at that facility since May 22, 2006, where she has been required to submit to at least one random drug test monthly. She has been abstinent from illegal drugs since at least May 22, 2006.

Subsequent to May 22,2006, the mother has seen the minor child on a regular basis, on alternate weekends, until the Christmas holiday of 2006. The mother’s explanation as to why she was denied contact with her daughter over Christmas vacation is that her parents are upset that she married Mr. Peter Lopez on December 16, 2006. On December 25,2006, the mother had contacted her parents and believed she had made telephone arrangements for her to see the child that evening from 7 p.m. until 9 p.m. However, that visitation did not come off and the mother contacted the Pennsylvania State Police to assist her in obtaining her child. Despite the efforts of the Pennsylvania State Police on Christmas evening, the mother did not have contact with her child. On December 26, 2006, with the assistance of the Pennsylvania State Police, the mother was able to obtain custody of her child.

On January 2,2007, the plaintiff/grandparents filed an emergency petition for special relief, alleging that the defendant/mother had granted them temporary guardianship of the minor child pursuant to the document of February 3, 2006, being petitioners’ exhibit no. 1, and also alleging that the minor child was substantially at risk in the custody of the mother, in that the mother and her new husband, Peter Lopez IV, have been known to abuse illegal drugs and substances, that they have neglected the welfare of the minor child; that the natural mother has sold all the minor child’s belongings in order to purchase illegal drugs; that the mother has sold food stamps, jewelry, and furniture in order to purchase illegal drugs, that she has participated in criminal activity in order to fund her illegal drug use; and that she is currently on probation for said activities. In addition, petitioners allege that the minor child is not being provided with adequate food or shelter and that she may be in an abusive environment.

Grandparents have legal standings to file a petition for custody pursuant to the provisions of 23 Pa.C.S. §5313(b), which provides that a grandparent has standing to bring a petition for physical and legal custody of a grandchild, and the court may grant custody of a child to a grandparent, if it is in the best interest of the child to be in the custody of the grandparent, when the grandparent provides proof of the following:

“(1) a genuine care and concern for the child;

“(2) a relationship with the child beginning with the consent of a parent of the child or pursuant to an order of court; and

“(3) a grandparent assumes or deems it necessary to assume responsibility for a child who is substantially at risk due to parental abuse, neglect, drug or alcohol abuse, or mental illness.”

The court is satisfied that the plaintiffs/grandparents meet the requirements of 23 Pa.C.S. §5313(b), in that the grandparents’ testimony at the hearing showed that they have a genuine care and concern for the child; their relationship with the child began with the consent of the parent of the child (petitioners’ exhibit no. 1); and the grandparents assumed or deemed it necessary to assume responsibility for a child due to the admitted drug abuse of the natural mother.

However, while the court believes that the plaintiffs/ petitioners/grandparents have legal standing to pursue custody of the minor child, the court is not satisfied that the plaintiffs met their burden of proof on the emergency petition for special relief. The testimony of the plaintiffs was related to incidents which occurred almost a year ago, if not more, prior to the date of the hearing in this matter. The grandparents did not substantiate their allegations in the emergency petition relative to current abuse of illegal drugs, neglect of the welfare of the minor child, allegations of sale of the child’s belongings, allegations of sale of food stamps, jewelry, and furniture to purchase illegal drugs, by the mother.

To the contrary, the mother’s testimony was that she has been clean from drugs and has not used any illicit drugs since May 22, 2006. In addition, the evidence presented by the mother relative to the condition of her home, see respondents’ exhibit A consisting of a compilation of 24 photographs, satisfies the court that the mother has adequate facilities and food to provide appropriate care for the minor child.

The paramount concern in a child custody case is the best interest of the child, based upon a consideration of all factors that legitimately effect the child’s physical, intellectual, moral and spiritual well-being. In the case of a custody challenge by a third party (grandparents), however, this analysis is “weighted”. See K.B. v. C.B.F., 833 A.2d 767, 776 (Pa. Super. 2003).

For purposes of a custody dispute, persons other than the natural parents are considered to be third parties. McDonel v. Sohn, 762 A.2d 1101, 1105 (Pa. Super. 2000).

In the custody contest between two biological parents, “the burden of proof is shared equally by the contestants . . . .” Yet, when the custody dispute is between a biological parent and a third party, the burden of proof is not evenly balanced. In such instances, “the parents have a prima facie right to custody, which will be forfeited only if convincing reasons appear that the child’s best interest would be served by an award to the third party. Thus, even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the biological parents’ side. See Charles v. Stehlik, 560 Pa. 334, 744 A.2d 1255 (2000).

The court’s obligation is to first hear all evidence relative to the child’s best interest, and then decide whether the evidence on behalf of the third party is weighty enough to bring the scale up to even, and down on the third party’s side. McDonel v. Sohn, 762 A.2d 1101, 1105 (Pa. Super. 2000).

The case of Jordan v. Jackson, 876 A.2d 443 (Pa. Super. 2005), was a case substantially similar to the facts of our case. In the Jordan case, the mother had been incarcerated for a substantial period of time and the grandparents had had custody of the child while the mother was incarcerated and was in drug rehab.

Atrial court in Jordan, supra at 456, had awarded the mother primary physical custody and, upon appeal by the grandparents, the Superior Court held that the mother was entitled to primary physical custody of the minor child, quoting the case of Burnett v. Verstreate, 742 A.2d 700, 703 (Pa. Super. 1999), which is equally applicable here:

“The grandparents’ care of the child [is] all that could be wished, however, that alone cannot be the determining factor in this case. If such were the case, no parent who is out of custody, regardless of the reformation and improvement in lifestyle or parenting ability, could obtain the return of custody. The record supports the trial court’s belief [and] the mother’s redemption and also mandates she be given the opportunity to exercise her right as a parent... .”

Upon consideration of the evidence produced in this case, the court is of the opinion that the plaintiffs/grandparents have not met their burden of production and their burden of persuasion, and as such, the court will enter the attached order granting primary physical custody of the minor child to the natural mother.

ORDER

And now, January 8,2007, for the reasons set forth in the attached opinion, the court enters the following order:

(1) Primary physical custody and legal custody of the miner child, [ ], is awarded to the natural mother, Stacey Grannis Lopez, subject to the conditions set forth in this order.

(2) The maternal grandparents, James Grannis Sr. and Ginger Grannis, his wife, shall have partial custody rights of the minor child, every Friday evening from 5 p.m. until Sunday evening at 5 p.m.

(3) Lawrence County Children and Youth Services is hereby directed to monitor the living circumstances in the mother’s home, Lot 17, West Wind Village, 195 Windy Drive, Ellwood City, Pennsylvania, or such other place where the natural mother may be residing with the minor child, on no less than a minimum of a monthly basis with a report to the court monthly.

(4) The defendant/mother shall submit to random drug testing through the office of the Lawrence County Adult Probation on a monthly basis, with the Adult Probation Office to determine the dates of the drug testing, and to provide the court with a monthly summary of the drug test.

(5) The parties are extended the privilege by the court upon their mutual agreement to modify the terms of the above-stated custody provisions from time to time as they shall agree are in the best interests of the child.

(6) In any transporting of the minor child, all parties and anyone else involved with such transportation, shall comply with the laws and regulations of the Comm on - wealth of Pennsylvania including those regarding child safety restraint apparatus in any vehicle used to transport the child.

(7) The parties are directed to fully cooperate with each other in fulfilling the requirements of this order and all other orders in connection with this matter. Failure to do so may result in sanctions being imposed by the court upon the offending party including suspension of custody and payment of attorney’s fees.

(8) No party shall remove the minor child from the jurisdiction of this court with the intent of changing the physical residence of the minor child without the written consent of the other party or the court.

(9) The parties shall read and fully comply with the provisions of the appendix to custody order which is attached hereto and filed with this order, (not published herein)

(10) The custody conciliation conference scheduled for February 12,2007, is hereby cancelled as moot. Any further hearing in this case shall be upon motion of counsel.

(11) The prothonotary shall serve notice of this order by regular mail or personal service upon counsel of record; upon Lawrence County Children and Youth Services; and Lawrence County Adult Probation.


author: LIEBERMAN, J,

text:
    Reinert v. Reinert

      November 8, 2006

      Daniel I. Sager, for plaintiff.

      Bruce L. Baldwin, for defendant.
   LIEBERMAN, J,

This matter came before the court on May 23,2006, when the plaintiff filed exceptions to the May 17, 2006 recommendations of the support master. The case involves the support of one child, Kourtney Ann Reinert, date of birth March 25, 1996. Kevin J. Reinert, Kourtney’s father, has primary physical custody and is the plaintiff in this matter. The support master recommended that the support obligation of Krista L. Reinert, defendant and mother of Kourtney, be suspended and that $50 per month be paid towards the arrears.

The parties have stipulated that the father has an income of $416.02 per week in workers’ compensation benefits. The facts concerning the mother are that she was last employed as a certified nursing assistant. The mother received her certificate as a certified nursing assistant in 2002, and worked between 24 and 36 hours per week at a rate of approximately $9.20 per hour. On December 7,2004, the mother was removed from work due to complications from a high risk pregnancy. The mother was pregnant with twins and was ordered not to lift more than 10 pounds. This resulted in the mother’s employer placing her on leave as there was no available work for her based upon this restriction. The mother was ultimately put on modified bed rest during the remainder of her pregnancy. The mother gave birth to twin girls on May 16, 2005. The mother also has previously worked as a hairdresser. This was prior to Kourtney’s birth, and the mother quit this position to become a stay-at-home mom after Kourtney was bom. (N.T. 10/28/05, pp. 4-7.)

The mother currently is not working, and receives $399 per month in food stamps and $276 per month in Women and Infant Children (WIC) subsidies from the state, as well as free health insurance for her and the twins. (N.T., 10/28/05, p. 13.) The mother has explored returning to work, but the costs of childcare have proved prohibitive. In the mother’s last position, she made $9.20 an hour and worked a maximum of 36 hours per week. This resulted in weekly earnings of $331.20. As the cheapest childcare available in the area for the two girls would cost $350 per week, the mother would lose approximately $20 a week before taxes if she were to work and pay childcare costs. She would also lose the various government benefits she is currently receiving. (N.T., 10/28/05, pp. 13-14.)

This court was thus presented with the problem that the mother has no income of her own, and if she was to return to work, she and the infant children from her new relationship would actually be in a worse financial position than they are currently in due to the loss of government benefits and the childcare costs. If this court would have ordered the mother to pay support for Kourtney, the reality of the situation is that the burden of Kourtney’s support would have fallen on the mother’s fiancé, who has three children to support in addition to the twin girls. Faced with such a problem, this court agreed with the support master’s suspension of the support order regarding Kourtney and entered an order accordingly. The plaintiff has appealed this court’s order, and upon direction from this court, has timely filed a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). In the statement, the plaintiff alleges four issues for appeal. They are:

(1) The nurturing parent doctrine is not a legal doctrine to be applied to any case where a parent decides not to work as a result of having preschool children.

(2) Even if the nurturing parent doctrine is applicable to all cases in which a parent decides to stay at home to take care of a preschool child, it does not apply to this case because Mother testified that she is seeking employment and desires to work.

(3) Mother should have been attributed an earning capacity equal to her experience, education and work history in calculating her support obligation for the minor child.

(4) In determining whether Mother’s daycare expenses for the children bom of another relationship exceed that of her earning capacity, the court should have taken into consideration the other household income. The household income used to support the minor children of Mother’s current intact relationship exceeds significantly the household income in Father’s household without Mother having an obligation to support the child at issue in this case.

The standard of review for the Superior Court in reviewing a child support order is narrow, and the Superior Court will not interfere with the trial court’s order absent a clear abuse of discretion, shown by clear and convincing evidence. Hesidenz v. Carbin, 354 Pa. Super. 610, 512 A.2d 707 (1986). “An abuse of discretion is more than an error of judgment. It must be a misapplication of the law or an unreasonable exercise of judgment.” Drawbaugh v. Drawbaugh, 436 Pa. Super. 57, 59, 647 A.2d 240, 241 (1994), quoting DeNomme v. DeNomme, 375 Pa. Super. 212, 218, 544 A.2d 63, 66 (1988).

(1) The Nurturing Parent Doctrine Is Not a Legal Doctrine To Be Applied to Any Case Where a Parent Decides Not To Work As a Result of Having Preschool Children

The plaintiff’s first matter complained of on appeal is a broad statement which need not be addressed by this court. The Superior Court has held that “[wjhen an appellant fails adequately to identify in a concise manner the issues sought to be pursued on appeal, the trial court is impeded in its preparation of a legal analysis which is pertinent to those issues.” In re Estate of Daubert, 757 A.2d 962, 963 (Pa. Super. 2000). “In other words, a concise statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no concise statement at all.” Common wealth v. Dowling, 778 A.2d 683, 686-87 (Pa. Super. 2001). Further, an analysis of this matter complained of on appeal is not necessary in resolving the ultimate issue in this case. The question is not whether the nurturing parent doctrine applies to all cases, but whether it applies to this case.

(2) Even if the Nurturing Parent Doctrine Is Applicable to All Cases in Which a Parent Decides To Stay at Home To Take Care of a Preschool Child, It Does Not Apply To This Case Because Mother Testified That She Is Seeking Employment and Desires To Work

Under the nurturing parent doctrine, an exception is created whereby, in appropriate cases, the earning capacity of a parent who chooses to stay home with young children need not be considered for determining child support. Hesidenz v. Carbin, 354 Pa. Super. 610, 616, 512 A.2d 707,710 (1986). This doctrine becomes problematic, as in this case, where the children being nurtured are not the children of the support order.

There are three factors to consider in order to determine whether a nurturing parent should be expected to seek employment, they are the age and maturity of the child, the availability and adequacy of others who might assist the custodial parent, and the adequacy of financial resources if a custodian parent does not remain in the homq.Doherty v. Doherty, 859 A.2d 811, 813 (Pa. Super. 2004). Whether or not the nurturing parent doctrine applies to the defendant will be addressed in the next matter complained of on appeal. With regard to this issue, this court had to generically determine whether the exemption created by the nurturing parent doctrine is waived when the parent undertakes a job search to see if working makes financial sense. This court found this argument to be entirely without merit.

The defendant testified that she has looked for employment but has not had any callbacks and cannot work because she cannot afford childcare. (N.T. 1/31/06. p. 4.) The facts are not, as plaintiff’s counsel alleges, that the defendant is seeking employment and desires to work. A more accurate description of the facts in this case is that the defendant explored what her job options are to see if she could afford to work. However, she found that childcare costs would exceed her income, making working a financial impossibility. This court will not compound the mother’s problem by denying her the nurturing parent exemption solely because she undertook a job search to see if working made financial sense. If this court accepted the plaintiff’s argument, it would be setting the absurd precedent whereby parents would be discouraged from looking for a job or researching what their income and childcare costs would be, because the moment they do, they would become responsible for child support they cannot afford.

(3) Mother Should Have Been Attributed an Earning Capacity Equal to Her Experience, Education and Work History in Calculating Her Support Obligation for the Minor Child

This is the real issue for appeal in this case. The issue is whether this court should have attributed an earning capacity to the mother or if she is entitled to an exemption from paying support under the nurturing parent doctrine. In order to address this issue, an analysis of the facts of this case under the nurturing parent doctrine must be completed.

As stated above, the nurturing parent doctrine creates an exception in appropriate cases, whereby the earning capacity of a parent who chooses to stay home with young children need not be considered for determining child support. Hesidenz v. Carbin, 354 Pa. Super. 610, 616, 512 A.2d 707, 710 (1986). There are three factors to consider in order to determine whether a nurturing parent should be expected to seek employment. They are the age and maturity of the child, the availability and adequacy of others who might assist the custodial parent, and the adequacy of financial resources if a custodian parent does not remain in the home. Doherty v. Doherty, 859 A.2d 811, 813 (Pa. Super. 2004).

The facts of this case are clear that the defendant meets the requirement of the first factor of the analysis. The mother is caring for twin girls bom May 16, 2005, and who obviously are in need of constant care due to their age.

As to the second factor, the evidence provided was that there were no other family members available to care for the twins if the mother found employment. Plaintiff’s counsel is correct in alleging that the maternal grandmother of the twins would live in the vicinity, but there was testimony that she has two jobs and was not available for childcare purposes. The grandmother has a full-time job working in cancer research, as well as a job in real estate working nights and weekends. (N.T. 10/28/05, p. 10.) Plaintiff’s counsel also alleges that the defendant’s fiancé has family in the area. The testimony he is referring to states that the fiancé’s mother lives in South Philadelphia whereas the defendant lives in Northeast Philadelphia (N.T. 10/28/05, pp. 31-32), which is presumptively not convenient for childcare purposes. Further, even if the fiancé’s mother lived close enough to care for the twins while the mother worked, the assertion of plaintiff’s counsel overlooks the testimony that the fiancé’s mother has had a stroke and is not capable of caring for the twins. (N.T. 10/28/05, p. 35.) Accordingly, the facts of this case are clearly sufficient to meet the second requirement of the analysis of the nurturing parent doctrine.

Applying the facts of this case to the third factor of the analysis also supports a finding that the nurturing parent doctrine should apply. The financial resources of the mother are such that she cannot afford to leave the home to work. The mother is in a position whereby the childcare costs for her two children are greater than what she could potentially earn. Further, if she were to find a job, in addition to the net loss she would suffer from the childcare expenses, the mother would also lose her food stamps, WIC subsidy, and the free health insurance for her and the twins. Under these circumstances, it is apparent to this court that the defendant meets the requirements of the nurturing parent doctrine. However, this case presents some additional issues because the children being nurtured are not the children of the support order.

In cases where the children being nurtured are not the children of the support order, the courts have held that the nurturing parent doctrine still applies assuming certain conditions are met. In Atkinson v. Atkinson, the Superior Court was presented with a similar matter; this court was guided by the following language in that opinion: “the issue [is] not whether the mother was caring for her children as opposed to their children, but whether under the facts of the case what the earning capacity would be. This is the correct analysis under these facts, particularly since there is no evidence of the mother’s earning capacity based on her work record or employ-ability. On this record imputing earning capacity to the mother is a fiction which simply shifts the burden of supporting the wife’s child of the first marriage to her second husband, who has no legal obligation to do so.” Atkinson v. Atkinson, 420 Pa. Super. 146, 148, 616 A.2d 22, 23 (1992). (emphasis added)

This case suggests that in order to determine what the earning capacity would be under the facts of the case, the prior work history and practice of the parent concerning childcare should be considered. Accordingly, in determining an earning capacity for the mother, this court considered the nurturing parent doctrine and its factors, the prior practice of the mother in that she stopped working to care for Kourtney after she was bom, and the mother’s desire to stay home to care for the twin girls. These are the relevant considerations according to the case law, and viewing all of the considerations together as a whole, they support a determination of a zero earning capacity for the mother.

This court believes that the nurturing parent doctrine applies to the mother, and thus disagrees with the third matter complained of on appeal. As seen above, the mother meets the requirements of the nurturing parent doctrine. The mother has twin girls at home who are under 2 years of age, there are no family members available to care for the children if the mother was working, and the financial resources are such that the mother cannot afford to go to work because the childcare cost and loss of government benefits outweigh her earning potential. This clearly illustrates that the mother would be entitled to the nurturing parent doctrine if the twin girls were the subject of the support order. Since the twin girls are not the subject of the order, this court looked at the additional factors as provided by case law, including the mother’s desire to stay home, and the fact that she previously stopped working to care for the child of the support order after she was born. This resulted in the determination that the nurturing parent doctrine applies to the mother and that she does not have an earning capacity under the facts of this case. Further, if this court found the defendant has an earning capacity, it would go against the precedent that “[i]t has never been the law that a mother who elects to care for her young child is chargeable with voluntary withdrawal from income-producing activity to defeat the right to support her child by a previous marriage.” Atkinson, at 149, 616 A.2d at 23.

(4) In Determining Whether Mother’s Daycare Expenses for the Children Born of Another Relationship Exceed That of Her Earning Capacity, the Court Should Have Taken Into Consideration the Other Household Income. The Household Income Used To Support the Minor Children of Mother’s Current Intact Relationship Exceeds Significantly the Household Income in Father’s Household Without Mother Having an Obligation To Support the Child at Issue in This Case

This matter complained of on appeal is essentially arguing that the mother’s new fiancé should bear the burden of supporting Kourtney. In this case, it does not matter where the money used to pay for the childcare for the twin girls comes from. The fiancé currently pays the entire childcare because he works while the mother cares for the girls. Due to the fact that the mother would not make enough money to cover the cost of childcare if she worked, the family would suffer a financial loss if the mother returned to work. This would result in the fiancé paying the difference between the mother’s income and the childcare costs, creating an additional expense for him. Accordingly, because the mother would not be creating any additional take-home pay for the family if she returned to work, a support order for Kourtney would have to come from the fiancé’s earnings as well.

Looking at the family as a business in the situation proposed by this matter complained of on appeal illustrates that if plaintiff’s argument were accepted, it would not free up any money to pay a support order for Kourtney. As a business, the family would create more income if the mother went to work, but it would not create any more profit because the childcare expense is larger than the income the mother would create working. The increase in income, while providing no profit or benefit to the family, would also disqualify the family for government benefits, further reducing the money available to support the family.

This matter complained of on appeal illustrates that this court’s decision that the mother has zero earning capacity was the correct one. Anyway this case is looked at, because the cost of childcare exceeds the earning capacity of the mother, the only way for support to be paid for Kourtney would be to force the mother’s fiancé to pay the support, which is something he is not obligated to do.

Based on the foregoing, there was no abuse of discretion by clear and convincing evidence as there is ample evidence to support this court’s decision. Accordingly, this court respectfully requests that its decision that the defendant in this matter currently has a zero earning capacity and is entitled to stay home to care for the twin girls be affirmed.

      . There is some dispute over this number. In the testimony, the $416.02 figure was originally stated by defense counsel. The hearing master asked that the number be repeated, whereby defense counsel either misspoke and stated the number to be $216.02, or there was an error in transcription. (N.T. 10/28/05, p. 3.) Plaintiff’s counsel used this error to forward to this court the $216.02 amount as the father’s income, despite the fact that the stipulated income was stated to be $416.02 at a later hearing. (N.T. 1/31/06, p. 16.) This court believes the $416.02 number is the correct number based upon the 1/31/06 testimony, as well as the support order of October 22,2004 which states the father receives $1,802.75 in monthly worker’s compensation benefits.

      . The defendant provided documentation to the support master concerning the fees charged by childcare services in her area. One facility charge $175 a week per child, and the other $195 a week per child. Since the care is for twin girls, the total childcare charge would be either $350 a week or $390 a week. (N.T. 1/31/06, p. 13.)

      . The Atkinson case and the present matter are distinguishable because in the present matter there is evidence of work history and prior childcare practice, however the factors for consideration remain the same. The Atkinson court stated, “The record in this case is totally devoid of any evidence that the mother ever worked, or that her son, who lived most of his life with her before electing to go with his father, did not have the benefit of her full-time nurturing. Without proof ofher income-producing capacity and the prior practice as to the older child, this court has no basis upon which to overrule the judgment of the trial court.” Atkinson v. Atkinson, 420 Pa. Super. 146, 149, 616 A.2d 22, 23 (1992). (emphasis added)


author: BEVILACQUA,

text:
    In re Tomasco

      Disciplinary Board Docket no. 111 D.B. 2004.
    March 13, 2009
   BEVILACQUA,

Member,

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

I. HISTORY OF PROCEEDINGS

On September 4, 2007, Mary Ellen Tomasco filed a petition for reinstatement to the bar of the Supreme Court of Pennsylvania, following her suspension for a period of one year and one day imposed on March 10, 2006. Office of Disciplinary Counsel filed a response to petition for reinstatement on November 26,2007, and identified several issues relating to petitioner’s actions post-suspension.

A reinstatement hearing was held on May 9, 2008, before a District II Hearing Committee comprised of Chair Michael A. Cognetti, Esquire, and Members Patrick J. Connors, Esquire, and Michael J. Malloy, Esquire. Petitioner was represented by John Rogers Carroll, Esquire. Petitioner presented the testimony of four witnesses and testified on her own behalf. Office of Disciplinary Counsel presented the testimony of one witness.

Following the submission of briefs by the parties, the Hearing Committee filed a report on October 16, 2008, and recommended that the petition for reinstatement be granted.

Office of Disciplinary Counsel filed a brief on exceptions on October 30,2008, and requested that the board reject the Hearing Committee’s recommendation and recommend that the petition for reinstatement be denied.

Petitioner filed a brief opposing exceptions on December 1, 2008.

This matter was adjudicated by the Disciplinary Board at the meeting on January 28, 2009.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner is Mary Ellen Tomasco. She was born in 1949 and was admitted to practice law in Pennsylvania in 1974. Her current business address is P.O. Box 987, Valley Forge, PA 19482.

(2) By order of March 10, 2006, the Supreme Court of Pennsylvania suspended petitioner from the practice of law for a period of one year and one day.

(3) Petitioner’s misconduct leading to the suspension was a conflict of interest with her client, which violated R.P.C. 1.7(b), 1.8(a) and 1.8(b).

(4) Petitioner was the attorney for Alta Kressler, a mentally incompetent individual, and had power of attorney authority over Ms. Kressler’s financial accounts.

(5) Without obtaining any written waiver or consent from her client, petitioner drafted and executed an indenture and mortgage in the amount of $275,000 to finance petitioner’s purchase of land in New Mexico. Petitioner failed to obtain separate counsel to represent Ms. Kressler and failed to take any steps to have the indenture transaction recorded.

(6) Prior to petitioner’s suspension, by letter of June 30, 2005, she notified her clients of her retirement from the practice of law and the transfer of her law practice to Samuel Trueblood, Esquire, and the law firm of Wilson, Morrow, Broderick, Tompkins & Flynn LLP. As part of the arrangement between petitioner and the law firm, petitioner was to act as a paralegal and assist Mr. True-blood with Alta Kressler’s matters.

(7) This decision to retire came during the pendency of petitioner’s disciplinary proceeding, which was still ongoing in June of 2005.

(8) Upon assuming petitioner’s practice, Mr. Trueblood wrote to the register of wills of Chester County and Montgomery County to advise them of his entry of appearance in petitioner’s active cases and petitioner’s withdrawal.

(9) Petitioner has worked as a paralegal for Wilson Morrow since the summer of 2005.

(10) By letter of March 13, 2006, Elaine M. Bixler, secretary of the board, provided petitioner with a copy of the March 10,2006 suspension order and advised her that she was required to comply with the Pennsylvania Rules of Disciplinary Enforcement and Disciplinary Board rules. Petitioner was provided with copies of all pertinent rules.

(11) On April 10,2006, petitioner filed a statement of compliance with the Disciplinary Board and falsely certified that under the penalties provided by 18 Pa.C.S. §4904 she had fully complied with the provisions of the order of the Supreme Court, with the applicable provisions of the Pennsylvania Rules of Disciplinary Enforcement and with the applicable Disciplinary Board rules.

(12) In fact, petitioner had not provided notice of her suspension to Alta Kressler and Ruth Smoyer, two individuals for whom she was acting as power of attorney and to whom she owed a fiduciary duty.

(13) At the time she filed the statement of compliance, petitioner was aware of her obligation to notify Ms. Kressler and Ms. Smoyer. After discussions with Samuel Trueblood, it was determined that petitioner need not comply with the requirement to provide notice, as both individuals were either incompetent or near death.

(14) By letter of April 11, 2006, Samuel Trueblood notified the board that petitioner was employed by his firm as a legal assistant and that he was her supervising attorney pursuant to Rule 217(j)(5), Pa.R.D.E.

(15) On April 26, 2006, petitioner was appointed executor and Samuel Trueblood was appointed attorney for the estate of Ruth Smoyer, who passed away on April 20, 2006.

(16) Petitioner received $3,500 for the Smoyer estate as a personal representative commission.

(17) On July 10,2006, Alta Kressler passed away and on July 18, 2006, petitioner was appointed co-executor of the estate, with Robert Noll. Up until Ms. Kressler’s death, petitioner still remained as attorney in fact and in control of Ms. Kressler’s finances.

(18) Petitioner saw no appearance of impropriety and no potential for conflict by acting as co-executor for the Kressler estate.

(19) Petitioner received $17,500 from the Kressler estate as a personal representative commission.

(20) The Kressler estate involved charitable bequests greater than $25,000 and written notice was required to be given to the attorney general of Pennsylvania.

(21) In January 2007 Mr. Trueblood provided the first and final account of the estate to Mary Kenney, senior deputy attorney general of the charitable trusts and organizations section of the office of attorney general.

(22) The first and final account did not contain information to indicate that petitioner had served as Ms. Kressler’s agent under a power of attorney nor did it indicate the fact that petitioner was a suspended attorney.

(23) By letter to Mr. Trueblood dated February 15, 2007, Ms. Kenney acknowledged receipt of Mr. True-blood’s notice and advised that she had no objections.

(24) In January 2008, Ms. Kenney was informed for the first time that petitioner had served prior to Ms. Kressler’s death as Ms. Kressler’s agent under a power of attorney and that, in such role, petitioner had been the subject of a disciplinary proceeding before the Disciplinary Board.

(25) Ms. Kenney would not have issued her February 15, 2007 “no objection letter” had she known of petitioner’s suspension. Ms. Kenney would have asked that petitioner not serve as executor and would have filed a petition with the Orphans’ Court requesting that petitioner be removed.

(26) The attorney general’s position was that petitioner should not continue to have access to funds and to serve in a fiduciary position as executor because she had previously breached her fiduciary duty to Ms. Kressler and had been involved in self-dealing.

(27) By letter to Mr. Trueblood dated January 17,2008, Ms. Kenney advised that she had been apprised that petitioner had served as the decedent’s agent under a power of attorney and requested on behalf of the attorney general’s office a copy of the power of attorney and an account of petitioner’s administration as Ms. Kressler’s agent.

(28) By cover letter to Ms. Kenney, dated April 17, 2008, Mr. Trueblood provided the accounting of the Alta Kressler lifetime estate by Mary Ellen Tomasco.

(29) At the time of the May 9, 2008 reinstatement hearing, Ms. Kenney had not approved the power of attorney account and was still investigating certain aspects of the account.

(30) Mr. Trueblood testified at the reinstatement hearing. He has been a member of the Pennsylvania Bar since 1975 and petitioner’s supervising attorney since July 1, 2005. Petitioner has done excellent work in estate matters.

(31) William Morrow, Esquire, is the managing partner of Morrow, Tompkins, Trueblood, and Fittipaldi LLC, formerly Wilson, Morrow, Broderick, Tompkins & Flynn LLP.

He describes petitioner’s paralegal work as very good and has a high regard for petitioner.

(32) Elizabeth Howard, Esquire, has been a member of the bar since 1978 and stated that petitioner has an impeccable reputation in Chester County.

(33) Mark Blank, Esquire, has been a member of the bar in Pennsylvania since 1976 and is a former divorce master in Chester County. He stated that petitioner has an excellent reputation as an honest and very competent attorney.

(34) Petitioner fulfilled her continuing legal education requirements necessary for reinstatement and if reinstated, plans to practice estate law, but does not intend to act as power of attorney in any new matters.

III. CONCLUSIONS OF LAW

(1) Petitioner has failed to meet her burden of proof by clear and convincing evidence that she has the moral qualifications, competency and learning in the law required to practice law in the Commonwealth of Pennsylvania. Pa.RJD.E. 218(c)(3)(i).

(2) Petitioner has failed to meet her burden of proof by clear and convincing evidence that her resumption of the practice of law will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest. Pa.R.D.E. 218(c)(3) (i).

IV. DISCUSSION

Petitioner seeks reinstatement to the bar of the Supreme Court of Pennsylvania following her suspension for a period of one year and one day imposed on March 10, 2006.

Pursuant to Rule 218(a), Pa.R.D.E., an attorney who is suspended for a period exceeding one year may not resume the practice of law until reinstated by the Supreme Court of Pennsylvania. In order for petitioner to gain reinstatement, she has the burden of proving by clear and convincing evidence that she possesses the moral qualifications, competency and learning in the law required for admission to practice law in this Commonwealth. In addition, petitioner has the burden of demonstrating that her resumption of the practice of law will not be detrimental to the integrity and standing of the bar or administration of justice nor subversive of the pubic interest. Rule 218(c)(3)(i), Pa.RJD.E.

The reinstatement process is a searching inquiry into a lawyer’s present professional and moral fitness to resume the practice of law. The object of concern is not solely the transgressions which gave rise to the lawyer’s suspension, but rather the nature and extent of the rehabilitation efforts the lawyer has made since the time the sanction was imposed, and the degree of success achieved in the rehabilitative process. Philadelphia News Inc. v. Disciplinary Board of the Supreme Court, 468 Pa. 382, 363 A.2d 779 (1976).

Petitioner was suspended for a period of one year and one day as a result of misconduct arising from her participation in a real estate transaction with her mentally incompetent client, for whom petitioner had power of attorney authority. The essence of petitioner’s misconduct was a conflict of interest with her client. Petitioner, as attomey-in-fact for her client and without obtaining any written waiver or consent from her client, drafted and executed an indenture and mortgage in the amount of $275,000 to finance petitioner’s purchase of land in New Mexico. Petitioner failed to obtain separate counsel to represent her client in the transaction and failed to take any steps to have the indenture transaction recorded. The board in the underlying disciplinary proceeding found that petitioner’s misconduct went to the heart of the attorney client relationship, as she abused her professional relationship with her client for personal gain.

Although the Supreme Court order of suspension was imposed on March 10,2006, prior to this date petitioner had decided to “retire” from the practice of law. By letter of June 30,2005, petitioner notified all of her clients as to her retirement from the practice of law and the transfer of her practice to the law firm of Wilson, Morrow Broderick, Tompkins & Flynn LLP. The time frame of this decision fell after the Hearing Committee in the disciplinary matter issued a report recommending public discipline. Petitioner began work as a paralegal for the firm in the summer of 2005, with Samuel Trueblood, Esquire, acting as her supervisor. During this time petitioner continued to act as power of attorney for Alta Kressler and was paid for her services; however, after the effective date of her suspension, petitioner failed to notify Alta Kressler or Ruth Smoyer or their beneficiaries of her status as a suspended lawyer, as required by the Rules of Disciplinary Enforcement. Petitioner’s explanation was that she determined since both of the individuals were infirm and near death, notice would not accomplish anything.

During the time of petitioner’s suspension Ruth Smoyer and Alta Kressler passed away. Petitioner was appointed executor of both estates. The Kressler estate involved charitable bequests greater than $25,000 and as such written notice was given to the attorney general. At no time were the attorney general and the charitable trusts and organizations section of that office given notice that the individual acting as executor was a disciplined attorney whose misconduct occurred as a result of her previous handling of the estate in question. According to Mary Kenney, senior deputy attorney general, the office is still investigating aspects of the power of attorney account.

Petitioner’s position is that she had no obligation to resign her power of attorney for Ms. Kressler subsequent to her suspension and was not prohibited from serving as executrix for Ms. Kressler and Ms. Smoyer. Petitioner demonstrated poor judgment and motive in her decision to continue as Ms. Kressler’s agent and to serve as executrix for the estate following her suspension, instead of dissociating herself from the source of her original conflict of interest. This behavior indicates that petitioner has no greater appreciation of her wrongdoing and has not rehabilitated herself from her original misconduct, which involved the same lack of judgment and foresight as to the implications of her actions. Petitioner has not demonstrated, by clear and convincing evidence, that she is fit to practice law.

For the above reasons, the board recommends that the petition for reinstatement be denied.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that the reinstatement of petitioner, Mary Ellen Tomasco, be denied.

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

Board Member Newman did not participate in the adjudication.

Board Member Cognetti abstained.

ORDER

And now, July 8, 2009, upon consideration of the report and recommendations of the Disciplinary Board dated March 13, 2009, the petition for reinstatement is denied.

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


author: NANO VIC, P.J.,

text:
    Commonwealth v. Brandwein

      Gary F. Dobias, district attorney, for Commonwealth.

      Stephen P VJossak Sr, for defendant.
    July 16, 2009-
   NANO VIC, P.J.,

PROCEDURAL AND FACTUAL BACKGROUND

On July 10,2006, Kevin Brandwein, the defendant in these proceedings, pled guilty to assaulting a juvenile court officer while in the performance of his duties’ and to harassing a prison guard at a time when he was an inmate at the Carbon County Prison, both felony offenses. The aggravated assault charge stems from an incident which occurred on November 1, 2005, in the Carbon County Courthouse while defendant was awaiting a disposition proceeding in a juvenile matter. The aggravated harassment of a prison guard occurred on January 5, 2006.

Before accepting defendant’s pleas, Senior Judge John P. Lavelle, before whom the pleas were entered, conducted a colloquy to ascertain that defendant’s pleas were being made knowingly, intelligently, and voluntarily. Following his acceptance of defendant’s pleas, Judge Lavelle sentenced defendant to two concurrent terms of imprisonment of 18 to 60 months in a state correctional institution. Both the pleas and the sentences imposed by Judge Lavelle were in accordance with a plea agreement previously reached between defendant and the Commonwealth on May 18,2006. Pursuant to that agreement, all remaining charges in each case were to be nolle prossed.

Irt neither case did defendant file a post-sentence motion or a direct appeal. Accordingly, the judgment of sentence in each case became final on August 9, 2006. Thereafter, on July 16,2007, defendant filed a Post Conviction Relief Act (PCRA) petition, his first, pro se. Upon receiving this petition, we appointed post-conviction counsel to represent defendant in presenting his claim.

At the hearing on defendant’s petition, counsel identified three issues which defendant wished to pursue: (1) whether medication prescribed to defendant for mental health issues so clouded his thinking that he was unable to enter a knowing, voluntary, and intelligent plea; (2) whether defendant’s history of mental health illness and ongoing treatment dictated a plea of guilty but mentally ill, rather than one of guilty alone, and if so, whether trial counsel was then ineffective for failing to consider, present, and develop a plea of guilty but mentally ill on defendant’s behalf; and (3) whether defendant is entitled to reinstatement of his direct appeal rights nunc pro tunc for counsel’s failure to file an appeal on defendant’s behalf, which defendant claims he requested. (PCRA hearing, pp. 4-6.) These issues will be discussed in the order presented.

DISCUSSION

Defendant is a young man with a troubled past. He has been in placement most of his life. Since he was four or five years of age, he has suffered from and has been treated for bipolar disorder and anger management problems. (PCRA hearing, p. 7.) He is now 22 years old, having been born on July 7, 1987.

Validity of Plea

At the time of his plea, defendant advised Judge Lavelle that he was being treated for mental health issues, specifically for bipolar disorder and having anger management problems, and that he took medication for his illness. (Plea and sentencing, pp. 8-9.) When asked by Judge Lavelle whether he was taking any medication, defendant responded that he was and that the only medication whose name he could recall was Depakote, 1500 milligrams per day. When Judge Lavelle inquired further about defendant’s ability to understand the proceedings, defendant replied that he understood and comprehended what was occurring. (Plea and sentencing, pp. 9-10.) In contrast, at the PCRA hearing, defendant testified that he was heavily medicated at the time of his plea — that he was then taking 800 milligrams of Trazodone, 800 milligrams of Trileptal, and 2000 to 2500 milligrams of Depakote — and that he did not truly understand what was happening or what he was doing. (PCRAhearing, p. 12.) On this basis, defendant contends that his plea was not voluntarily, knowingly, and intelligently made. The record, however, belies this contention.

When questioned by Judge Lavelle during his plea colloquy, defendant testified that: (1) he was being treated for mental illness; (2) the medications he was taking did not adversely affect his understanding or comprehension of the proceedings; (3) he understood the factual bases for his pleas; (4) he was pleading guilty because he was guilty; (5) his attorney had reviewed the charges with him, the sentences, and his rights as a defendant; (6) he was familiar with the plea agreement and had no questions he wanted to ask about the plea; and (7) he understood the court was not a party to the plea agreement.

In the written guilty plea colloquy which accompanied defendant’s oral plea and which was made part of the record, defendant represented that he: (1) read and understood the English language (no. 6); (2) was not under the influence of alcohol or any kind of drugs (no. 7); (3) was currently being treated for mental illness and was taking medication, identified as Depakote (nos. 10 and 11); (4) had sufficient mental capacity to understand what he was doing and to understand the written questions directed to him and to answer them correctly (no. 12); (5) understood the nature of the offenses to which he was pleading guilty and the elements of those offenses (nos. 14 and 15); (6) understood his right to trial by jury (nos. 17 and 18); (7) understood that he was presumed innocent until proven guilty (no. 19); (8) was aware of the permissible range of sentences and/or fines for the offenses for which he was pleading guilty (no. 28); and (9) was entering the pleas of his own free will and had not been pressured or forced by anyone to do so (nos. 35, 36, and 37).

“Our law presumes that a defendant who enters a guilty plea was aware of what he was doing. He bears the burden of proving otherwise.” Commonwealth v. Rush, 909 A.2d 805, 808 (Pa. Super. 2006). Further, “a criminal defendant who elects to plead guilty has a duty to answer questions truthfully.” Commonwealth v. Cortino, 387 Pa. Super. 210, 216, 563 A.2d 1259, 1262 (1989). The court is entitled to rely on what the defendant says and the defendant may fairly be bound by what he tells the court during a plea colloquy. Moreover, the court may “assess for itself the [defendant’s] mental state at the time of the colloquy.” Id.

The transcript of defendant’s oral colloquy before Judge Lavelle shows that defendant was attentive, coherent, and responsive to the court’s questions. When asked specifically about his mental illness and the medication he was taking, defendant acknowledged that he was alert, knowledgeable, and understood the proceedings. Significantly, after questioning defendant about his mental illness and medication, Judge Lavelle documented his perception of defendant’s appearance and stated, “You look very sharp to me, and you seem to comprehend everything that is going on.” (Plea and sentencing, p. 9.)

Based upon our review of the record, we believe that defendant was capable of rationally understanding his plea and its consequences and are convinced that at the time of his plea and sentencing he in fact understood what he was doing and why. The sentences defendant received were both within the standard guideline range, were concurrent to one another rather than consecutive, and followed the plea agreement which defendant had entered almost two months earlier. Accordingly, we concur with Judge Lavelle’s assessment that defendant’s plea was knowingly, voluntarily, and intelligently entered.

Guilty but Mentally III

Defendant’s second and third issues rely on section 9543(a)(2)(ii) of the PCRA, ineffective assistance of counsel, as the basis for challenging his convictions. To prevail on a claim of ineffectiveness of counsel, defendant must show: “(1) that the claim is of arguable merit; (2) that counsel has no reasonable strategic basis for his or her action or inaction; and, (3) that, but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different.” Commonwealth v. Bath, 907 A.2d 619, 622 (Pa. Super. 2006), appeal denied, 591 Pa. 694, 918 A.2d 741 (2007). “The failure to satisfy any prong of this test will cause the entire claim to fail.” Id. “Finally, counsel is presumed to be effective and [defendant] has the burden of proving otherwise.” Id.

Defendant claims counsel was ineffective for failing to recommend and advocate a plea of guilty but mentally ill. Such a plea, defendant contends, would have provided needed treatment for his underlying health issues, rather than incarceration alone. Defendant’s argument implicitly assumes, without analysis, both the viability of this plea and its omission as adversely affecting him.

A plea of guilty but mentally ill is not a matter of right. Such a plea in this case would have required both the consent of the Commonwealth — a fact belied by its belief that the time for treatment was over (PCRA hearing, pp. 41-42,46) and its agreement to dismiss other charges — and the approval of the court. Pa.R.Crim.P. 590(A) (3). Moreover, before accepting a plea of guilty but mentally ill, the court is required to hold a hearing to determine whether the defendant was “mentally ill at the time of the offense to which the plea is entered.” 18 Pa.C.S. §314(b). (emphasis added) Definitionally, a person is mentally ill if as a result of mental disease or defect he “lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.” 18 Pa.C.S. §314(c) (I)-

None of the illnesses with which defendant has been diagnosed necessarily affect his cognitive functioning and his ability to distinguish between right and wrong. At least, defendant has not proven or persuaded us to the contrary. While his anger management problems signal a possible inability to conform conduct to the requirements of the law, the extent of defendant’s disability in this regard and its role, if any, in understanding why defendant did what he did was never explained. To the contrary, the separate incidents with which defendant was charged occurred two months apart and each involved planning and thought. The November 1, 2005 incident involved defendant’s decision to commit an offense as an adult so he would not be returned to juvenile detention. The January 5,2006 incident involved defendant preparing a mixture of urine and feces which he later sprayed on a prison guard.

The question asked in the second half of the definition of mental illness is whether defendant lacked substantial capacity to conform his conduct to the requirements of the law at the time of the incident. Defendant has not proven this. People are afflicted by mental illness to varying degrees, yet most lead law-abiding lives. Defendant’s reasoning that his failure to comply with the law proves he lacked the substantial capacity to do so is inverted and does not present a meritorious claim.

Additionally, a person found guilty but mentally ill is guaranteed no specific sentence. In this respect, section 9727(a) of the Judicial Code expressly provides that “[a] defendant found guilty but mentally ill or whose plea of guilty but mentally ill is accepted . . . may have any sentence imposed on him which may lawfully be imposed on any defendant convicted of the same offense.” 42 Pa.C.S. §9727(a). “The only distinction between the convicted defendant and the convicted defendant determined to have been mentally ill at the time of the commission of the offense is that, in the case of the latter, the judge, before imposing sentence, must take testimony and make a finding as to whether the person at the time of sentencing is severely mentally disabled and in need of treatment.” Commonwealth v. Sohmer, 519 Pa. 200, 210-11, 546 A.2d 601, 606 (1988). (emphasis in original) Such treatment, if found necessary, may be provided in a prison or hospital setting. See Commonwealth v. Cain, 349 Pa. Super. 500, 518-19, 503 A.2d 959, 968-69 (1986).

No mental health evaluation of defendant was done, and defendant has failed to present any competent psychiatric or psychological evidence to establish that he is in need of continued psychiatric or psychological treatment, or that the treatment he is currently receiving within the state correctional system is insufficient or inadequate. (PCRA hearing, p. 11.) In this respect, defendant has further failed to meet his burden of showing how he was in fact prejudiced by counsel’s conduct. Having failed to establish both the merits of this claim and its prejudicial effect, defendant’s claim on this basis is without merit.

Reinstatement of Appellate Rights

Finally, defendant claims that counsel was ineffective for failing to file an appeal from the judgments of sentence imposed by Judge Lavelle. An “unjustified failure to file a requested direct appeal is ineffective assistance of counsel per se.” Bath, 907 A.2d at 622. When this occurs, defendant “need not show that he likely would have succeeded on appeal in order to meet the prejudice prong of the test for ineffectiveness.” Id. Prejudice is presumed. However, “before a court will find ineffectiveness of counsel for failing to file a direct appeal, the defendant must prove that he requested an appeal and that counsel disregarded that request.” Id.

As to the factual predicate on which defendant bases this claim, we are unconvinced that defendant requested trial counsel to file an appeal and find to the contrary. Defendant’s testimony in this regard does not ring true. If, as defendant contends, his mind was numbed by medication and his thoughts clouded, it appears unlikely that he would have had the mental foresight to request an appeal. If, on the other hand, as we find, defendant understood and agreed to the plea and the sentence imposed, it makes no sense that defendant would have requested an appeal and there would be no basis to do so. Instead, we accept and credit the testimony of trial counsel that defendant never requested his sentences be appealed. (PCRAhearing, p. 45.)

This, however, does not end the inquiry since counsel has a duty to adequately consult with his client as to the advantages and disadvantages of an appeal where there is reason to think that a defendant would want to appeal. A failure to consult under these circumstances may justify a finding of counsel’s ineffectiveness for not filing an appeal, even if the defendant himself did not request that an appeal be filed. See Bath, 907 A.2d at 623. “[Cjounsel has a constitutional duty to consult with a defendant about an appeal where counsel has reason to believe either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that the particular defendant reasonably demonstrated to counsel that he was interested in appealing.” Id.

Neither of these circumstances exists in this case. As to the first, we have already stated that it makes no rational sense for defendant to request an appeal from a plea and sentence which he had agreed to and which was accepted and imposed. Under this scenario, there exist no issues of colorable merit to appeal. As to the second, we have factually determined that defendant did not request an appeal be filed.

Since defendant has failed to establish a duty to consult, defendant has likewise failed to establish any breach of that duty.

CONCLUSION

In accordance with the foregoing, having examined each of the issues raised by defendant in these post-conviction proceedings and finding them to be without merit, defendant’s petition is denied.

      . Aggravated assault, the charge to which defendant pled guilty in the case docketed to no. 657 CR 05 is a felony of the second degree. 18 Pa.C.S. §2702(a)(3). In the case docketed to no. 241 CR 06, defendant pled guilty to aggravated harassment by a prisoner, a felony of the third degree. 18 Pa.C.S. §2703.1.

      . In the case docketed to no. 657 CR 05, the charges to be dismissed were assault by a prisoner (18 Pa.C.S. §2703(a)), resisting arrest (18 Pa.C.S. §5104), and disorderly conduct (18 Pa.C.S. §5503(a)(l)). In the case docketed to no. 241 CR 06, the charges to be dismissed were simple assault (18 Pa.C.S. §2701(a)(3)) and harassment (18 Pa.C.S. §2709(a)(l)).

      .42 Pa.C.S. §§9541-9546.

      . The PCRA hearing occurred on January 9, 2009, with the transcript of those proceedings being fi led on May 14,2009. The transcript of the proceedings surrounding defendant’s plea and sentencing which occurred on July 10,2006, is separately referred to in this opinion.

      . This issue has not been couched in terms of counsel’s alleged ineffectiveness and appears to have been waived. “Absent extraordinary circumstances, the failure to file a direct appeal from a judgment of sentence amounts to waiver of any claim which could have been raised in such an appeal, thereby precluding collateral relief.” Commonwealth v. Fanase, 446 Pa. Super. 654, 661, 667 A.2d 1166, 1169 (1995). Nevertheless, because defendant has also requested reinstatement of his direct appeal rights, we address the merits in the interest of justice.

      . Under this section, a claim for ineffectiveness may be raised if the ineffectiveness “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. §9543(a)(2)(ii). Under previous interpretations of this language which required an ineffectiveness claim to raise a question of whether an “innocent individual” had been convicted, defendant’s claim would not be cognizable under the PCRA since a plea of guilty but mentally ill is itself an admission of criminal wrongdoing and not a defense. See Commonwealth v. Grier, 410 Pa. Super. 284, 289, 599 A.2d 993, 995-96 (1991). This is no longer the case. In Commonwealth v. Cappello, 823 A.2d 936 (Pa. Super. 2003), the court stated:
      “[A]ll constitutionally-cognizable claims of ineffectiveness are reviewable under the PCRA. In [Commonwealth ex rel.] Dadario [v. Goldberg, 565 Pa. 280, 773 A.2d 126 (2001)], our Supreme Court interpreted the ‘truth-determining process’ language contained in section 9543(a)(2)(h) as the legislature’s attempt to adopt the known Sixth Amendment standard of prejudice discussed in Strickland v. Washington, [466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], rather than its intent to limit the scope of ineffectiveness claims reviewable in PCRA proceedings. Therein, the court stated, ‘Therefore, if a petitioner claims that he or she was denied the effective assistance of counsel in violation of the Sixth Amendment and Article 1, Section 9 of the Pennsylvania Constitution, section 9543(a)(2)(ii) of the PCRA allows the petitioner to seek relief.’” Id. at 941. (citations omitted)
      Consequently, both of defendant’s claims of ineffectiveness of counsel are cognizable under the PCRA.

      . A plea of guilty but mentally ill is not an acquittal but is an acknowledgement of criminal wrongdoing. It is therefore not a defense to criminal charges. “[A] finding of guilt with mental illness does not negate the intent element of crimes, nor should it act as a mitigating factor at sentencing.” Commonwealth v. Rabold, 597 Pa. 344, 363, 951 A.2d 329, 340 (2008); see also, Commonwealth v. Sohmer, 519 Pa. 200, 210, 546 A.2d 601, 606 (1988) (“Mental illness under our Crimes Code will not be permitted to eliminate the mens rea requirement for culpability or otherwise criminal conduct unless the M’Naghten Test is met.”). Such a finding is “not determinative of the defendant’s criminal responsibility or culpability, but rather goes to an aspect of his post-verdict disposition.” Rabold, 597 Pa. at 370, 951 A.2d at 345.
      Unlike a finding of insanity which negates intent and therefore acquits, “in considering whether to find a defendant guilty but mentally ill or simply guilty, the jury is considering types of guilt, not the questions of innocence or valid defenses.” Commonwealth v. Trill, 374 Pa. Super. 549, 602, 543 A.2d 1106, 1132 (1988) (Beck, J., concurring), appeal denied, 522 Pa. 603, 562 A.2d 826 (1989). “The legislature, in formulating the guilty but mentally ill verdict has established an intermediate category to deal with situations where a defendant’s mental illness does not deprive him of substantial capacity sufficient to satisfy the insanity test but does warrant treatment in addition to incarceration.” Id. at 581, 543 A.2d at 1122.

      . In Commonwealth v. Fanase, the court stated:
      “Under Pierce and its progeny, a defendant is required to show actual prejudice; that is, that counsel’s ineffectiveness was of such magnitude that it ‘could have reasonably had an adverse effect on the outcome of the proceedings.’. . . This standard is different from the harmless error analysis typically applied when determining whether the trial court erred in taking or failing to take certain action. The harmless error standard, as set forth by this court in Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978), states that ‘[w]henever there is a “reasonable possibility” that an error “might have contributed to the conviction,” the error is not harmless.’ This standard, which places the burden on the Commonwealth to show that the error did not contribute to the verdict beyond a reasonable doubt, is a lesser standard than the Pierce prejudice standard, which requires the defendant to show that counsel’s conduct had an actual adverse effect on the outcome of the proceedings. This distinction appropriately arises from the difference between a direct attack on error occurring at trial and a collateral attack on the stewardship of counsel. In a collateral attack, we first presume that counsel is effective, and that not every error by counsel can or will result in a constitutional violation of a defendant’s sixth amendment right to counsel.” 446 Pa. Super. at 666-68, 667 A.2d at 1172. (citations omitted) (emphasis in original)