author: WILLIAMSON, J.,

text:
    Strunk v. Commonwealth

      C.P. of Monroe County,
    No. 9351 CIVIL 2014

      Janet Marsh Catina, for petitioner.

      Robert J. Kopacz, for respondent.
    April 29, 2015
   WILLIAMSON, J.,

This matter comes before the court on the license suspension appeal of Christopher Daniel Strunk (“licensee”). On September 22, 2014, licensee entered into a consent decree in Monroe County Juvenile Court following charges of driving under the influence. As a part of the consent decree, the licensee’s driving privileges were suspended for six (6) months. The licensee immediately surrendered his driver’s license to the Clerk of Courts on September 22,2014. That suspension is not under appeal.

Due to a clerical error at the Monroe County Clerk of Courts Office, notice was sent to the department of a conviction for the offenses of which he was charged, which included underage drinking. The licensee was not convicted of this or any other offense, as he entered into a consent decree as a pre-trial diversion for first-time juvenile offenders. As a result, the department issued a notice of license suspension due to the court ordered six (6) month suspension period of the consent decree, and an additional ninety (90) day suspension for the underage drinking offense reported by the Clerk of Courts Office, even though there was no conviction for the underage drinking offense. The reported underage drinking offense was eventually removed by an administrative correction made by the Clerk of Courts Office and reported to the department. However, this was after the following actions that took place.

On October 14, 2014, licensee was sent a notice by the department that his driving privileges were being suspended for ninety (90) days due to the incorrect notice sent by the Clerk of Courts Office. The department also sent notice on the same date suspending the licensee’s driving privileges for six (6) months due to the terms of the consent decree. On November 12, 2014, the licensee filed a timely appeal specifically appealing the suspension for ninety (90) days (due to the incorrect reporting), and that the six (6) month suspension run from the date the license was surrendered on September 22, 2014 pursuant to the consent decree as it was the only valid suspension. A hearing was scheduled and a supersedeas was entered by this court on November 13,2014. This court automatically enters a supersedeas in license suspension appeals.

A hearing thereon was held and an order entered on January 22, 2015 granting the licensee’s appeal and ordering no license suspension due to the incorrect reporting of the underage drinking offense as a conviction (the ninety (90) day suspension); and, clarifying that the six (6) month suspension pursuant to the consent decree runs and properly credited from September 22, 2014 and forward.

On March 30, 2015, the licensee filed a motion to amend and clarify court order. Apparently, the department, upon receipt of this court’s order of November 13, 2014 directing entry of a supersedeas, determined that licensee could apply for restoration of his driving privileges despite the fact he was not challenging the underlying six (6) month suspension of the consent decree; rather only the ninety (90) day suspension imposed due to the incorrect reporting. As a result, the department issued a notice of restoration on December 17,2014.

The licensee inquired of the department as to why he received the notice, but did not consult legal counsel or question the matter further. As a result, the licensee applied for and received a restoration of his license on January 7, 2015. At that time, he did consult legal counsel, who advised him not to drive, as he still had a license suspension for six (6) months pursuant to the consent decree. The licensee testified that he has not driven since the time of surrendering his license on September 22, 2014.

The licensee eventually turned in his license again on February 17, 2015. Unfortunately, the department recalculated the period of suspension and determined that licensee would only receive credit for September 22, 2014 to November 18,2014 (apparently its date of receipt of the court order dated November 13, 2014 imposing a supersedeas) and from February 17, 2015 and forward. Licensee then filed the motion to amend and clarify our order of January 22, 2015. Licensee argued he should receive credit for the entire time of September 22, 2014 forward as he did not drive at all. Alternatively, licensee argued he should have received credit for all time since September 22, 2014 except January 7, 2015 to February 17, 2015. We find the basis of the motion to amend and clarify was to request this court to acknowledge how the supersedeas was to be applied.

We have reviewed the matter and following a hearing held April 23, 2015 we find the licensee should have received credit from September22,2014 to January 7,2015, and from February 17, 2015 forward for his suspension. While the issue of credit for a period of suspension may be the province of the department, the facts upon which they make that determination were squarely before this court. We also make this finding based upon the rationale of the department.

The department argues the supersedeas entered by this court allows the licensee to continue driving, and therefore, no credit for a license suspension following entry of the supersedeas. The department would argue that such supersedeas continued through to the entry of the court order of January 22, 2015 sustaining the licensee’s appeal. The department then argues that credit would not be granted after such order, because the licensee had restored his license (effective January 7,2015) and did not surrender it again until February 17, 2015.

We agree with the department that the licensee should receive no credit for the time period of January 7, 2015 to February 17, 2015 when his license was restored, regardless of how or why this was granted by the department. Licensee’s argument he did not drive is also irrelevant, because he had his license legally, albeit by mistake since he still had a six (6) month suspension that he did not appeal, and could have driven during that time period.

We do clarify and will further explain our order of January 22,2015 as to the licensee’s appeal in this matter. The licensee’s appeal was clearly only as to the ninety (90) day suspension imposed due to the incorrect reporting of the Clerk of Courts office. The licensee acknowledged such in the appeal petition and at court. The licensee’s petition for appeal included copies of both the notice of the uncontested six (6) month suspension, and the contested ninety (90) day suspension. It was clearly done to reference the notices sent and support the allegations of the petition for appeal. This court would expect a separate appeal of each notice of suspension to be made by a licensee where there is more than one notice being appealed. Here, the licensee was appealing only the ninety (90) day notice due to the incorrect reporting. There was no separate appeal of the six (6) month suspension, nor was it included in the instant appeal. The balance of the petition, and order we signed on January 22, 2015 set this forth, and merely referenced the correct starting date of the six (6) month suspension in an attempt to clear the record.

As the appeal was only as to the ninety (90) day suspension, our supersedeas was only as to that notice of suspension. Therefore, no supersedeas was in effect as to the separate six (6) month suspension of the consent decree. We find no authority that the supersedeas granted for one notice of suspension, has any effect on a second, but separate suspension that is not appealed. We realize this was not specifically stated in our order of November 13, 2014 granting supersedeas, but clearly intended since the petition for appeal was as to the ninety (90) day suspension notice only. Again, how and why the department sent a notice of restoration of license to the licensee, dated December 17, 2014 is irrelevant, as the underlying six (6) month suspension, not being appealed, continued to prevent licensee from obtaining his license and driving. As no supersedeas was in effect for that six (6) month suspension notice, the restoration notice of December 17, 2014 should have had no effect on the licensee’s credit for license suspension for that notice. Thus, proper credit for the six (6) month suspension would have continued beyond November 13, 2014 and December 17, 2014, as the supersedeas, and the department’s notice of restoration based upon that supersedeas, were for the ninety (90) day suspension only for the reasons set forth above, we can only agree such credit continues until January 7, 2015 when the licensee actually restored his license pursuant to the supersedeas and notice of restoration resulting therefrom on the appeal of the ninety (90) day suspension notice.

We believe this clarification of the supersedeas we granted, and the sole issue on appeal, necessitates a recalculation of the time credit for licensee’s suspension due to the consent decree. Following our findings set forth, as a further explanation of our order of January 22, 2015, such time credit for suspension should be September 22, 2014 to January 7, 2015 and February 17, 2015 and continuing forward. We will include this in our order clarifying our order of January 22, 2015.

ORDER

And now, this 29th day of April, 2015, following a hearing on the motion to amend and clarify this court’s order of January 22, 2015, it is the order of this court that our order of January 22,2015 is amended to reflect that the appeal taken and supersedeas issued was as to the ninety (90) day suspension notice only and the six (6) month suspension of the consent decree continued in effect. As a result, the licensee is entitled to a time credit for suspension from September 22, 2014 to January 7, 2015 and from February 17, 2015 until the six (6) month suspension is served in full. All other findings and conditions of this court’s order of January 22, 2015 entered in this matter shall have full force and effect.

      . This court takes judicial notice that the Monroe County Clerk of Courts Office has on several occasions in the past ear, sent notices of conviction for charged offenses in adult ARD (Accelerated Rehabilitative Disposition) pre-trial diversion cases causing a similar effect as this matter, even though there was no conviction.


source: Caselaw Access Project

author: HODGE, J.,

license: Public Domain

text:
    Malinchak v. Peterson

      C.P. of Lawrence County,
    No. 10709 of 2012, C.A.

      Jean K. Perkins, for plaintiff.

      Anthony S. Piatek, for defendant.
    May 12, 2015
   HODGE, J.,

Before the court for disposition is plaintiff’s petition for modification of custody and defendant’s petition to relocate. The plaintiff, Jordan F. Malinchak (hereinafter, “father”) and the defendant, Courtney Peterson (hereinafter, “mother”) are the natural parents of the minor child, Kira N. Malinchak, bom April 18, 2012. Father initiated the instant custody action on June 12, 2012 by filing a complaint in custody. Following a custody conciliation conference, an agreed upon custody order was entered whereby mother enjoyed primary custody of Kira, subject to father’s partial custody on Monday and Wednesday evenings and overnights every Friday. On April 22,2013, father petitioned to modify the existing custody order to increase his periods of partial custody. Following another custody conference, father’s partial custody increased to overnight visitation every Wednesday evening and every weekend from Saturday at 10:00 a.m. until Sunday at 8:00 p.m., in addition to extensive summer and holiday visitation. Father filed a second petition for modification on August 4, 2014, wherein father requested primary physical custody of Kira. On October 27, 2014, mother filed a petition to relocate with the minor child to Austin, Texas. Father opposed mother’s relocation, and the court consolidated mother’s request to relocate and father’s request for primary physical custody for trial. The trial commenced on March 18, 2015 and took an additional three days to complete.

The court summarizes the testimony presented at trial as follows: Doctor Kirk Lunnen, a psychologist employed by people in need, conducted a custody and psychological evaluation of the parties. Dr. Lunnen’s evaluation consisted of multiple interviews with the parties, mother’s current husband, the paternal grandparents, and a home visit of mother’s residence and father’s residence. Dr. Lunnen ultimately opined that the best interests of the minor child would be served by implementing a fifty-fifty division of physical custody between the parties. Dr. Lunnen stated that he reached his conclusion after considering each party’s psychological evaluations, the parents’ relationship with the minor child, the close proximity of the parties’ residences, the ability of both mother and father to parent, and the parties’ available support systems. Dr. Lunnen further opined that the minor child is developing appropriately and, so far, appears unaffected by the custody dispute between the parties.

Father is currently twenty-three years old. Father resides with his parents, Robin Malinchak and Francesco Terranova. Father attends college at Youngstown State University full time, and he does not work. Father is completely reliant upon his parents for all of his financial support, including his monthly child support obligation of $100.00. Father is pursuing a degree in criminal justice. Father aspires to become a police officer. Father attends class every weekday at 10:000 a.m., and typically finishes his courses in the afternoon.

Father and mother met in high school. They dated for approximately three years prior to mother becoming pregnant. Mother and father remained close, but they did not maintain an exclusive relationship. Father was present for Kira’s birth, and he tried to assist mother in caring for Kira following her birth. Father stated that he helped assemble Kira’s crib, purchased clothing and baby items for Kira and tried to assist mother in feeding, clothing and comforting their child.

Although father and mother tried to maintain a cordial relationship, their efforts were strained by the presence of mother’s current husband, Jeremy Mao. When father’s relationship with mother began to deteriorate, father filed a custody complaint in an effort to secure a steady visitation schedule between himself and Kira.

Mother notified father of her desire to move to Austin, Texas in the Fall of 2013. Father stated that mother was vague about her intentions, and she seemed to only be considering the idea. Father stated that the petition to modify custody, most recently filed, was not initiated by his fear that mother would move, but rather, because father was concerned that the minor child was arriving at his residence with scratches, bug bites and lice on her body. Father stated that he felt mother was not keeping her home clean, and that the animals in mother’s residence were causing Kira’s ailments.

Kira’s paternal grandmother, Robin Malinchak, testified that Kira has her own room at her residence. Father is the primary caregiver for Kira when she is with father, but Mrs. Malinchak enjoys assisting father when Kira is with him. Mrs. Malinchak stated that she has serious concerns about mother’s household because Kira frequently came to her house with lice, bug bites, and severe rashes on her private parts. Mrs. Malinchak contacted Children and Youth Services of Lawrence County regarding her concerns and they proceeded to conduct an evaluation.

Gary Zarilla was the children and youth caseworker assigned to Kira’s case. Mr. Zarilla stated that when he initially visited mother’s residence, there was a lot of garbage and clutter. There were dishes piled up in the sink and several pets living in the house. Mr. Zarilla generally described mother’s house as “overwhelming,” but he did not observe any definitive safety concerns. Mr. Zarilla asked mother to try and improve the overall appearance and cleanliness of her house. Mother complied with Mr. Zarilla’s request, and the conditions were drastically remedied upon Mr. Zarilla’s follow-up visit. Mr. Zarilla did not initiate any dependency proceedings on Kira’s behalf.

Mother testified that she has been the primary care giver for Kira since Kira’s birth. Following Kira’s birth, mother returned to her mother’s residence and lived with maternal grandmother until mother obtained a residence with Jeremy Mao. Mother and Mr. Mao subsequently married on August 28,2014 and had a child together on November 28, 2014. Mother stated that her desire to relocate is primarily based upon a job opportunity provided to her husband by her mother-in-law. Mother stated that she does not perceive father as being a good provider for Kira, considering the fact that father is completely dependent upon his parents for his financial needs. Mother believes that she and her husband could better provide for Kira if they relocated to Austin, Texas because her husband would be working for his family’s business and earning in excess of $3,000.00 per month.

Mother wishes to further her education and believes this could be more easily accomplished if she was permitted to relocate with Kira to Austin, Texas. Mother stated that she is amicable to the idea of living with her in-laws, and mother believes that Mr. Mao and his family could provide an adequate support system for her children subsequent to moving.

Jeremy Mao, mother’s husband, also testified on mother’s behalf. Mr. Mao is twenty-three years old. In addition to mother and Mr. Mao’s child, Mr. Mao stated that he loves and cares for Kira. However, Mr. Mao is also conscientious of his role as her step-father. Mr. Mao does not intend to replace father as a male figure in Kira’s life.

Mr. Mao would like to move with his family to Austin, Texas so that he could work for his mother in her family restaurant. Mr. Mao proposed that he and mother could move into his mother’s residence during their transition, and that they could save money to buy their own home. Mr. Mao believes that his family could provide an adequate support system for mother and her children.

In any custody proceeding, the court’s main concern is the most appropriate custody arrangements for the minor child. 23 Pa.C.S.A. §5327(a); K.B. v. C.B.F., 833 A.2d 767, 771 (Pa. Super. 2003). In a custody contest, such as the case now before the court, where the dispute arises between two parents, the burden of proof is shared equally between the parties, as the court will not presume that custody should be awarded to a particular parent. Id.

In making a determination, the court bases its findings on how the best interests of the child may be served. Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004). It is axiomatic that the paramount concern in a child custody case is the best interests of the child, and the court makes its determination based upon a consideration of all factors legitimately affecting the child’s physical, intellectual, moral and spiritual well being. Id.

In addition to the testimony presented by the parties, a court must consider the statutory factors set forth at 23 Pa.C.S.A. §5337(h)(regarding relocation); see also C.M.K. v. K.E.M., 45 A.3d 417 (Pa. Super. 2012). The party proposing relocation has the burden of establishing that relocation will serve the best interest of the minor child, and each party has the burden of establishing the integrity of their motivation in seeking or opposing relocation. 23 Pa.C.S.A. §5337(i). The court will address each of the relocation factors in the following discussion.

(1) The nature, quality, extent of involvement and duration of the child’s relationship with the party proposing to relocate and with the non-relocating party, siblings and other significant persons in the child’s life.

Kira has a very strong relationship with mother and father. Mother has served as the primary caregiver since Kira was bom, but father has been actively involved in parenting Kira following her birth. The evaluation submitted by Dr. Lunnen establishes that Kira’s relationship with each parent is healthy and well-established.

(2) The age, developmental stage, needs of the child and the likely impact the relocation will have on the child’s physical, educational and emotional development, taking into consideration any special needs of the child.

Kira is presently three years old. She is developing normally and appropriately; and, therefore, has no special needs. The court does believe however, that Kira is old enough to be cognitive of the drastic changes relocating to Austin, Texas would create. Mother’s proposed relocation will permit mother to continue serving as Kira’s primary caregiver, and Kira is not old enough to experience a change in school system as a result of the move. The court is concerned about the emotional impacts that Kira could face because Kira has a very strong relationship with father and father’s family. This relationship would be negatively impacted by relocating because of the distance between New Castle, Pennsylvania and Austin, Texas.

(3) The feasibility of preserving the relationship between the non-relocating party and the child through suitable custody arrangements, considering the logistics and financial circumstances of the parties.

This factor creates significant concerns for the court in evaluating mother’s request to relocate. Father currently enj oys custody of Kira every Wednesday evening and every weekend. The parties could never maintain such a liberal visitation schedule if mother moves with the minor child because of the distance and limited financial resources available to the parties. Although mother proposes that father could have extensive summer and holiday visitation, mother could not articulate a viable plan to pay for the child’s airfare or alternative transportation expenses. Even if the custody changes were effectuated, summer and holiday visitation could not adequately perverse father’s relationship with Kira considering the fact that father typically sees Kira three to four days a week.

(4) The child’s preference, taking into consideration the age and maturity of the child.

Given the child’s young age, the parties did not offer the minor child’s testimony in support of their respective positions. Therefore, this factor is not before the court for consideration.

(5) Whether there is an established pattern of conduct of either party to promote or thwart the relationship of the child and the other party.

There was insufficient evidence presented during these proceedings to warrant a finding that either party has tried to inhibit the minor child’s relationship with the opposing party. In fact the court received testimony that both father and mother place value on the other party in their parental role. The court reaches this conclusion despite father’s contention that mother has been verbally aggressive and oppressive during several custody exchanges. The court believes the disagreements sustained by the parties are not untypical of young parents who have opposing beliefs regarding custody of a mutual child.

(6) Whether the relocation will enhance the general quality of life for the party seeking the relocation, including, but not limited to, financial or emotional benefit or educational opportunity.

Mother’s proposed relocation is premised upon her husband’s desire to obtain employment at his family’s restaurant. Mr. Mao testified that his mother offered him a position as head chef/manager of her restaurant, which would be a substantial increase in wages for Mr. Mao. Mr. Mao testified as to his efforts to obtain comparable employment in the Lawrence County and surrounding areas. Mr. Mao stated that he was only able to secure a job at Wal-mart making $9.20 per hour. Mr. Mao typically works thirty-three hours per week. Mr. Mao’s current income is inadequate to financially support all of his family’s needs, and Mr. Mao and Mother rely on medical assistance and food stamps.

Mother believes that if she could move her family to Austin, Texas, Mr. Mao’s increase in income could promote her family’s financial security. Mother even speculates that she might be able to attend college after they move and become stabilized.

In considering the benefits proposed by mother, the court believes that, other than the possibility of improved financial security, mother’s quality of life would not drastically change. Mother is currently a full-time caregiver for her two children and homemaker. This would not change if mother relocated. Mother’s support system is primarily based in the local areas, and she would be completely dependent on Mr. Mao’s extended family if they moved. If mother and Mr. Mao moved, they would be living with Mr. Mao’s parents until they secured enough savings to purchase their own home.

Additionally, the court believes that mother’s desire to attend college is not dependent upon moving, and that mother could fulfill her desire to further her education locally.

(7) Whether the relocation will enhance the general quality of life for the child, including, but not limited to, financial or emotional benefit or educational opportunity.

The court’s analysis under this factor is very similar to its preceding discussion under factor six. Kira clearly has the opportunity to enjoy increased financial stability through her family, but it comes at the cost of leaving a well established support system and relationship with father. Although mother did present testimony as to her proposed household and surrounding school district, the court cannot conclusively infer that either would be better than mother’s current household and the schooling currently available to Kira.

(8) The reasons and motivation of each party for seeking or opposing the relocation.

Mother’s desire to relocate is sincere; mother believes that if her husband can obtain better employment, mother and Mr. Mao could create a better lifestyle for their children.

Alternatively, father’s objections to mother’s relocation are sincere. Father believes that if mother moves to Austin, Texas with Kira he will not play a strong parental role in Kira’s daily life.

(9) The present and past abuse committed by a party or member of the party’s household and whether there is a continued risk of harm to the child or an abused party.

There has been no evidence regarding abuse committed by either party or that the minor child is at risk of harm in either household.

As indicated previously, in addition to mother’s request to relocate, father’s petition to modify custody is also pending before the court. In any custody proceeding, a court must consider the statutory factors set forth in 23 Pa.C.S.A. §532 8(a); see also B.K.M. v. 5 0 A.3d 16 8 (Pa. Super. 2012)(holding that “best interests of the child” analysis requires consideration of all Section 5328(a) factors). The court will address each of these factors in the following discussion.

(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.

Father and mother both encourage and permit contact between the other party and the minor child. Father and mother have testified to times when they were able to modify the court ordered custody arrangements without incident, but father does become frustrated that mother is not willing to comply with father’s requests.

(2) The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.

There has not been sufficient evidence to warrant a finding of abuse committed by either party toward each other or the minor child.

(3) The parental duties performed by each party on behalf of the child.

Both mother and father perform all the necessary tasks associated with raising the minor child when they are exercising custody. Mother and father both play a strong role in caring for the minor child since the minor child’s birth. Mother and father both demonstrate a present willingness and capability to care for Kira.

(4) The need for stability and continuity in the child’s education, family life and community life.

The minor child has always lived primarily with mother, but father enjoys a liberal partial custody schedule. The parties currently live very close to each other, and this provides for easier transitions during custody exchanges. Kira is less than three years old, so the court’s consideration of Kira’s need for stability and continuity is limited to Kira’s home life at mother’s residence and father’s residence.

(5) The availability of extended family.

Father has a very strong support system in the Lawrence County area. Father lives with his parents, who play a substantial role in Kira’s upbringing. Mother’s family support in Lawrence County is limited to maternal grandmother and mother’s current husband, Mr. Mao.

(6) The child’s sibling relationships.

Kira is the only child bom between the parties. Mother’s second child, L.M., bom November 28,2014 to her current husband, is Kira’s half-sibling. Although L.M. is very young, the testimony established that Kira enjoys being around her half-brother. Any custody arrangement entered must foster this relationship.

(7) The well-reasoned preference of the child, based on the child’s maturity and judgment.

Based on the child’s age, this factor shall not be considered by the court in reaching a determination.

(8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.

The testimony presented did not include sufficient evidence to support a finding regarding a party’s attempt to turn the child against the other parent. The court will not consider this factor in its determination.

(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.

Both mother and father are able to provide the minor child with a loving and stable environment. Furthermore, the court is satisfied that both mother and father care for the minor child’s emotional needs while she is in their custody.

(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.

Similar to the court’s determination under subsection nine, both mother and father are able to attend to the minor child’s daily needs. The court recognizes that father is extremely dependent upon his parents for his own physical, educational and financial needs, and thus, the minor child is also when she is in father’s custody. Alternatively, however, mother is dependent upon her husband because Mr. Mao is the only source of income in mother’s residence. The parties are extremely young and their dependence upon others is indicative of their youth.

(11) The proximity of the residences of the parties.

The parties currently reside within two city blocks from one another. Father and mother can easily walk to the other’s residence. This fact promotes a very liberal custody schedule, even when Kira becomes of school age because the parties reside in the same school district.

(12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements.

The court is satisfied that both parties are able to care for the minor child while she is in their custody. Father’s testimony establishes that father has a stronger support system because of his parents and extended family. Mother, however, can rely upon Mr. Mao for assistance, and after observing Mr. Mao during his testimony, the court finds Mr. Mao to be very sincere and dependable in this regard.

(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.

Each party testified that there can be high levels of conflict and poor communication between them. Mother has displayed poor temperament when communicating with father, which in turn causes father to be despondent. Mother and father have attended communication/co-parenting counseling, which helped them for a short period of time.

(14) The histoiy of drug or alcohol abuse of a party or member of a party’s household.

Father previously had one Driving While Under the Influence charge in 2013. Father completed the ARD program without further incident. Mother has no involvement with drug abuse or improper alcohol use.

(15) The mental and physical condition of a party or member of a party’s household.

Mother and father are both in good physical and mental health.

After reviewing all of the statutory factors pertaining to mother’s request to relocate, in addition to the statutory factors pertaining to father’s request for modification, the court determines that mother’s request to relocate must be denied. The court bases its determination on the fact that Kira has a very well-established relationship with both father and mother. Kira enjoys regular and frequent contact with father and his extended family, and the court believes that any benefit bestowed by a relocation to Austin, Texas could not outweigh the detrimental impact suffered by limiting father’s relationship with Kira to summer and holiday visitation. In reaching this determination, the court further considered the case of C.M.K. v. K.E.M., 45 A.3d 417 (Pa. Super. 2012). In C.M.K., the Superior Court of Pennsylvania affirmed the trial court’s ruling that petitioner’s/mother’s request to relocate was not in the minor child’s best interest because the relocation would substantially impair the respondent’s/father’s ability to preserve his strong parental relationship with the minor child. Id. at 427. The court considered the fact that respondent/father was extremely involved in the minor child’s life and participated in many of the child’s daily activities. Id. Although petitioner’s/mother’s request to relocate was from Grove City, Pennsylvania to Erie, Pennsylvania, a distance of only 68 miles, the trial court held, and the Superior Court agreed, that such a move presented de minimis improvements to the minor child’s overall quality of life. Id.

Furthermore, the court finds that mother’s request is primarily premised upon Mr. Mao’s desire to pursue a career opportunity with his family’s restaurant. While mother’s objectives are sincere, the court is not satisfied that mother has exhausted reasonable alternatives to providing a more financially stable lifestyle for her family. Many of the additional benefits referenced by mother could be achieved locally and are not subjective to relocation entirely.

Additionally, in evaluating father’s request to modify the current custody order, the court believes that a modification is not appropriate at this time. Father wishes to implement a 50-50 custody schedule; however, father has extensive commitments to his college education. Father attends classes daily, and the court cannot realistically implement an equal custody schedule knowing that father will not be available to care for Kira for substantial periods of time. The court believes that if father finishes college, he will be in a better position to achieving financial independence.

The court accredits mother with being Kira’s primary caregiver, and the court believes that in order to secure a consistent schedule, this arrangement should continue for a period of time. The court believes that the issues raised by each party during these proceedings should cause the parties to strongly re-evaluate some of their parenting choices, and hopes that, following the entry of this opinion, the parties could agree to begin a fresh start to their co-parenting and communication methods.

Consistent with this opinion, the court will enter the attached order of court.

ORDER OF COURT

And now, this 12th day of May, 2015, this case being scheduled before the court this date for a custody trial regarding plaintiff’s/father’s petition for modification of custody and defendant’s/mother’s petition to relocate, and after thoroughly reviewing the notes of testimony, in addition to the memorandums filed on behalf of the respective parties, the court hereby orders and decrees as follows:

1. Plaintiff’s/father’s petition for modification of custody is denied.

2. Defendant’s/mother’s petition to relocate is denied.

3. The current custody order, entered on September 29, 2014 shall remain in full force and effect.

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


author: NEALON, J,

text:
    Brink v. Mallick

      C.P. of Lackawanna County,
    No. 13 CV 1314

      Marion Munley, for plaintiff.

      Jeffrey W McDonnell, for defendant Satish Mallick, M.D.

      Mary Ann Martillotti, for defendants Marian Community Hospital, Maxis Health System and Catholic Health East.

      Harry P McGrath, Jr., for defendants NHS Human Services, Inc., NHS Human Services Foundation, NHS Pennsylvania, formerly known as Northwestern Human Services of Pennsylvania, Northwestern Human Services, t/d/b/a NHS of Northeastern Pennsylvania and NHS Pennsylvania
    June 5, 2015
   NEALON, J,

ORDER

The hospital defendants, Marian Community Hospital, Maxis Health System and Catholic Health East (“Marian”), in this psychiatric malpractice action have filed a motion for reconsideration of the memorandum and order dated March 27,2015, holding that the Sentinel Event Report, which Marian forwarded to the private accreditation organization, The Joint Commission, was not protected from discovery by Section 4 of the Peer Review Protection Act (“PRPA”), 63 P.S. § 425.4, Section 311(a) of the Medical Care Availability and Reduction of Error (“MCARE”) Act, 40 P.S. § 1303.311(a), or Section 299b-22 of the federal Patient Safety & Quality Improvement Act of2005 (“PSQIA”), 42 U.S.C. § 299b-22. See Brink v. Mallick, 2015 WL 1387936 (Lacka. Co. 2015). Marian does not challenge those aspects of the earlier discovery ruling made under the MCARE Act and the PSQIA, and instead bases its motion for reconsideration solely upon the PRPA. (Docket entry no. 201 at ¶¶ 10-15; Docket entry no. 205 at pp. 4-12). In support of its motion for reconsideration, Marian has submitted its applicable Sentinel Event Policy which it did not produce, as directed, in conjunction with the original discovery proceeding. (Docket entry no. 201, Exhibit A). Following the parties’ submission of their briefs and the completion of oral argument on May 28, 2015, Marian’s motion for reconsideration became ripe for disposition. (Docket entry nos. 203,205,210).

The PRPA “‘serve[s] the legitimate purpose of maintaining high professional standards in the medical practice for the protection of patients and the general public.’” Troescher v. Grody, 869 A.2d 1014, 1020-1021 (Pa. Super. 2005) (quoting Cooper v. Delaware Valley Medical Center, 428 Pa. Super. 1, 14, 630 A.2d 1, 7 (1993), aff’d, 549 Pa. 620, 654 A.2d 547 (1995)). The Act was enacted “to facilitate self-policing in the health care industiy,” Yocabet v. UPMC, No. 569 WDA 2014, at p. 12 (Pa. Super. June 5, 2015), and “represents a determination by the legislature that, because of the expertise and level of skill required in the practice of medicine, the medical profession itself is in the best position to police its own activities.” Dodson v. DeLeo, 872 A.2d 1237, 1242 (Pa. Super. 2005); Young v. Western Pennsylvania Hospital, 722 A.2d 153, 156 (Pa. Super. 1998) (quoting Cooper, supra). To that end, Section 4 of the PRPA provides that peer review records “shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a professional health care provider arising out of the matters which are the subject of evaluation and review by such committee....” 63 P.S. § 425.4.

The PRPA defines a peer review organization as “any committee engaging in peer review...to gather and review information relating to the care and treatment of patients for the purposes of (i) evaluating and improving the quality of health care rendered; (ii) reducing morbidity or mortality; or (iii) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care.” 63 P.S. § 425.2. “Peer review” is defined in Section 2 of the Act as “the procedure for evaluation by professional health care providers of the quality and efficiency of services ordered or performed by other professional health care providers, including practice analysis, ...and the compliance of a hospitaL.with the standards set by an association of health care providers and with applicable laws, rules and regulations.” Id. “The need for confidentiality in the peer review process stems from the need for comprehensive, honest, and sometimes critical evaluations of medical providers by their peers in the profession.” Piroli v. Lodico, 909 A.2d 846, 850 (Pa. Super. 2006) (quoting Young, supra). “Without the protection afforded through the confidentiality of the proceedings, the ability of the profession to police itself effectively would be severely compromised.” Joe v. Prison Health Services. Inc., 782 A.2d 24, 32 (Pa. Cmwlth. 2001); Young, supra.

“The PRPA does not, however, protect non-peer review business records even if those records eventually are used by a peer review committee.” Dodson, 872 A.2d at 1242. For example, incident reports that are prepared on behalf of a hospital’s risk management department are not shielded from discovery by the Act since they are primarily designed to facilitate the investigation of potential claims, rather than to improve the quality of medical care. See Atkins v. Pottstown Memorial Medical Center, 430 Pa. Super. 279, 283, 634 A.2d 258, 260 (1993); Venosh v. Henzes, 31 Pa. D. & C. 5th 411, 430 (Lacka. Co. 2013) (holding that “the two event reports are not protected from discovery by the PRPA since they constitute incident reports that were prepared on behalf of [the hospital’s] risk management department to document or investigate an event or potential claim,” and “were not generated by or for a peer review committee in assessing the quality of the medical care that the treating health care providers furnished to Venosh.”), aff’d, 105 A.3d 788 (Pa. Super. 2014). Nonetheless, “documents generated by a peer review committee specifically for use in the peer review process are not discoverable simply because some of the information contained therein is available elsewhere.” Dodson, 872 A.2d at 1244.

By way of relevant background, the Estate of James L. Brink (“Brink”) sought to compel discovery of a Sentinel Event Report that Marian forwarded to the joint commission following Brink’s death by suicide at Marian on June 2, 2011. (Docket entry no. 140). By order dated January 30, 2015, Marian was directed to provide the undersigned with a copy of the Sentinel Event Report for an in camera review, together with copies of Marian’s Sentinel Event reporting policies and “proof of all recipients of the Sentinel Event Report,” including “whether the Sentinel Event Report was reviewed by the patient safety committee or the board of trustees of Marian Community Hospital.” (Docket entry no. 174). Although Marian timely submitted the Sentinel Event Report and an affidavit executed by its former chief executive officer (CEO), “Marian did not submit a copy of its ‘Sentinel Event reporting policies that were in effect at the time that the Sentinel Event Report was prepared in 2011,’ nor did it produce any proof whatsoever ‘of all recipients of the Sentinel Event Report,...of whether the Sentinel Event Report was reviewed by the Patient Safety Committee or the Board of Trustees of Marian....’” Brink, supra, at *2 (quoting docket entry no. 174). In the absence of any such information, we concluded that “Marian has not met its burden of establishing that the Sentinel Event Report is protected by the peer review privilege set forth in the PRPA,” Id. at *7, and reasoned:

Section 4 of the PRPA grants discovery protection for the “proceedings and records of a review committee” that is engaged in peer review, and the discovery record is devoid of any indication that the Sentinel Event Report was prepared by or submitted to Marian’s peer review committee. In response to the order of January 30, 2015, Marian did not produce its Sentinel Event Reporting policies that were in effect in 2011, and which would arguably indicate whether the Sentinel Event Report was developed or reviewed by Marian’s peer review committee prior to its submission to The Joint Commission. Nor has Marian furnished the requested “documented proof of all recipients of the Sentinel Event Report,” which could clarify whether Marian’s peer review committee even received the Sentinel Event Report.
* * *
While it is true that Marian forwarded the Sentinel Event Report to The Joint Commission which arguably acted as a peer review committee for purposes of the PRPA, “a hospital cannot create protection for a document simply by sending it to the peer review committee.” [citation omitted]. The in camera review of the Sentinel Event Report reveals that the report does not contain or disclose the investigation or records of a peer review committee at Marian. It is laudable that Marian opted to transmit the Sentinel Event Report to The Joint Commission so that The Joint Commission could conduct a root cause analysis and communicate its findings and recommendations to Marian, but the fact remains that the Sentinel Event Report was not prepared by The Joint Commission, nor was it authored by or presented to Marian’s own peer review committee.

Id. at *6-7.

After Marian secured new counsel, it filed the instant motion for reconsideration, and in addition to producing its Sentinel Event Policy, Marian provided a supplemental affidavit dated April 4,2015, from Mary Theresa Vautrinot who served as Marian’s Chief Executive Officer from 2005 to 2012. (Docket entry no. 201, Exhibits A, B). The stated purpose of Marian’s Sentinel Event Policy is “to identify all sentinel events as they occur, conduct a complete root cause analysis of any such event, and take the necessary steps to eliminate or substantially reduce the likelihood of a similar event occurring in the future.” (Docket entry no. 201, Exhibit A at p. 7). The policy defines a sentinel event “as an unexpected occurrence involving death or serious physical or psychological injury or risk thereof,” which “is not related to the natural course of the patient’s illness or underlying condition” and instead “is associated with the treatment, or lack of treatment, for this condition.” {Id. at p. 8). As per the itemized criteria set forth in the Sentinel Event Policy, a reviewable sentinel event includes any “[sjuicide of any individual receiving care, treatment or services in staffed around-the-clock setting or within 72 hours of discharge.” {Id).

Under the heading “How The Joint Commission becomes aware of a sentinel event,” Marian’s policy states that Marian “is encouraged, but not required, to report to The Joint Commission on any sentinel event meeting the above criteria for reviewable sentinel events.” {Id. at p. 9). “If The Joint Commission becomes aware (either through voluntary self-reporting or otherwise) of a sentinel event meeting the above criteria that has occurred” at Marian, Marian is required to:

prepare a thorough and credible root cause analysis and action plan within 45 calendar days of the event or of becoming aware of the event, and
submit to The Joint Commission its root cause analysis and action plan, or otherwise provide for Joint Commission, evaluation of its response to the sentinel event under an approved protocol, within 45 calendar days of the known occurrence of the event.

(Id.). Marian’s Sentinel Event Policy requires the root cause analysis to contain the following characteristics:

focuses on systems and processes, not individual performance;
includes questioning “why” and identifying system process faults;
identifies changes to be made in systems and processes that would reduce the risk of such events occurring in the future (or determines, after analysis, that no such improvement opportunities exist);
implementation of improved processes or systems, if analysis determines.

(Id.). After the analysis and plan have been submitted, “[t]he Joint Commission will then determine whether the root cause analysis and action plan are acceptable.” (Id.).

With respect to the individuals and departments participating in the root cause analysis, Section IV of Marian’s policy states that “[hjospital leadership (CEO, medical staff members, appropriate VP, department director, VP for quality & safety) will be notified of a sentinel event,” and that “[ajppropriate medical staff members or the president of the medical staff will become involved and will be given support from leadership in the investigation.” (Id. at p. 10). “Hospital legal counsel and insurance company will be consulted, as needed, prior to any Joint Commission notification and submission of a root cause analysis form.” (Id.). Additionally, “[t]he patient safety committee, the medical executive committee, as appropriate, and the board of directors will be informed of sentinel events and the results of the root cause analysis.” (Id.). Attached to Marian’s policy is a “sentinel event process” flow chart which reflects that once Marian “conduct[s] root cause analysis (within 45 days),” the next step is to “Refer to peer review, QI director of safety, as necessary,” and thereafter “report to patient safety committee, CEO, medical executive committee and board of directors (as necessary).” (Id. at p. 11). Finally, Marian’s policy provides that “[t]he root cause analysis will be maintained in the quality and safety department,” and that “[t]his information is considered confidential and protected under the Peer Review Protection Act (QI involvement).” (Id. atp. 10).

The supplemental affidavit by Marian’s former CEO attests that she “initiated a comprehensive review process regarding the circumstances surrounding [Brink’s] demise,” and “that the individuals participating in the root cause analysis included the vice president for quality safety/chief quality officer, the chief nursing officer, an RN shift manager, the behavioral health unit manager, a social worker, two therapeutic coordinators, a psychiatrist, the spiritual care vice-president, an emergency department physician, and the behavioral unit activities coordinator.” (Docket No. 201, Exhibit B at ¶¶ 6, 8). The root cause analysis was conducted “for the purpose of evaluating the quality of care rendered to the patient and developing new policies and procedures aimed at improving the quality of care provided to other patients in the behavioral health unit and reducing the risk of morbidity and mortality.” (Id. at ¶ 7). “The root cause analysis involved participants reviewing hospital records and policies, interviewing persons with knowledge of the event, and holding several meetings to discuss the event and how to improve patient safety.” (Id. at ¶10). The Sentinel Event Report prepared by Marian “contains the findings and plan of action developed as a result of the root cause analysis,” and “was sent by Marian Community Hospital only to The Joint Commission.” (Id. at^ 12-13).

Marian submits that its sentinel event policy and supplemental affidavit “demonstrate that the Sentinel Event Report was created by a peer review committee conducting a root cause analysis of the circumstances surrounding Mr. Brink’s death.” (Docket entry no. 205 at p. 8). Marian argues that because the Sentinel Event Report which it forwarded to The Joint Commission “contains the root cause analysis of the circumstances surrounding Mr. Brink’s demise and a plan of action for reducing the risk of similar events occurring in the future, the report certainly constitutes the findings and recommendations of a peer review committee,” and, as such, “is clearly privileged under the Act.” (Id. at p. 10). In reply, Brink claims that the Sentinel Event Report is not protected peer review since it was allegedly “prepared by the hospital’s risk management department,” as opposed to “the quality and patient safety department,” in anticipation of future litigation, not for the purpose of peer review. (Docket entry no. 210 atpp. 11, 15).

To constitute privileged peer review under the PRPA, Marian’s Sentinel Event Report must have been developed by a peer review body to evaluate the quality of the treatment and practices at Marian in an effort to reduce avoidable harm or death or to ensure compliance with the standards established by an association of health care providers. See 63 PS. §§ 425.2, 425.4. When the parties’ discovery dispute was first submitted for a decision, Marian failed to provide any proof of its applicable policies describing a Sentinel Event Report’s purpose or protocol, nor did it identify the individuals who participated in the preparation of the Sentinel Event Report. In fact, Marian’s original submissions mistakenly suggested that The Joint Commission, not Marian, had conducted the root cause analysis following Brink’s death, and specifically stated that “as a result of Mr. Brink’s death, The Joint Commission... reviewed the treatment rendered to Mr. Brink at Marian and issued a sentinel event report to the hospital.” (See docket entry no. 148 at pp. 2, 6-7). Therefore, the initial record submitted for our review did not demonstrate that Marian had prepared the Sentinel Event Report for peer review-related purposes. See Brink, supra, at *6 (“There simply is no indication in the available discovery record that Marian’s Sentinel Event Report was ever prepared or reviewed by any peer review committee or patient safety committee at Marian.”). As a result, Marian did not satisfy its burden of establishing that the Sentinel Event Report is shielded from discovery by the PRPA. See Joe, 782 A.2d at 33 (since “defendants have not established that any of the requested documents concerning Dr. Caucci were produced by a ‘review committee’ during the course of a ‘peer review’ as defined in the Act..., they have not sustained their burden to establish that any requested documents are shielded from discovery by the Act.”).

Marian’s supplemental exhibits reflect that the Sentinel Event Report consisted of a “thorough and credible” root cause analysis designed to “eliminate or substantially reduce” the likelihood of a comparable suicide occurring at Marian. The root cause analysis identified system and process deficiencies at Marian, and was developed by Marian’s quality and safety officers, physician and nursing leaders, health care professionals, and members of Brink’s treatment team. The results of that group’s root cause analysis were communicated to Marian’s patient safety, medical executive and peer review committees. While Marian’s legal counsel and insurance company were subject to being “consulted” prior to the submission of the Sentinel Event Report to The Joint Commission, there is no indication in the record that Marian’s counsel or insurer ever participated in the preparation of the Sentinel Event Report.

In addition to the root cause analysis, Marian’s Sentinel Event Report also included an “action plan” recommending remedial measures by Marian to reduce the risk of a recurrence of another suicide. Consequently, the supplemental materials establish that Marian’s Sentinel Event Report, comprised of a root cause analysis and an action plan, was generated by Marian to assess the quality of the care provided and systems in place at Marian, to improve the same and thereby reduce the risk of morbidity and mortality, and to assure that Marian complied with The Joint Commission’s standards. As such, the Sentinel Event Report was designed to improve the quality of behavioral health care at Marian, rather than to facilitate the investigation or defense of a prospective tort claim.

A motion for reconsideration is addressed to the sound discretion of the trial court, Ellenbogan v. PNC Bank, N.A., 731 A.2d 175, 180 n.7 (Pa. Super. 1999), which may reconsider an earlier order pursuant to 42 Pa.C.S.A. § 5505 “only if the motion for reconsideration is filed within thirty days of the entry of the disputed order.” PNC Bank, N.A. v. Unknown Heirs, 929 A.2d 219, 226 (Pa. Super. 2007). Marian filed its motion for reconsideration on April 6,2015, within ten days of our original order dated March 27, 2015. By virtue of the additional exhibits which have been produced by Marian, Marian has established that the Sentinel Event Report at issue constitutes protected peer review material under Section 4 of the PRPA. Accordingly, Marian’s motion for reconsideration will be granted, as will Marian’s de novo appeal of the special trial master’s order of November 17, 2014, and plaintiffs motion to compel responses to plaintiff’s request for production of document No. 24 will be denied.

And now, this 5 th day of June, 2015, upon consideration of the “motion for reconsideration of defendants, Marian Community Hospital, Maxis Health System and Catholic Health East, of the court’s order dated March 27, 2015, which denied the defendants’ petition for de novo review of the special trial master’s decision of November 17, 2014,” the supplemental exhibits and memoranda of law submitted by the parties, and the oral argument of counsel on May 28, 2015, and based upon the reasoning set forth above, it is hereby ordered and decreed that:

1. The “motion for reconsideration of defendants, Marian Community Hospital, Maxis Health System and Catholic Health East, of the court’s order Dated March 27, 2015, which denied the defendants’ petition for de novo review of the special trial master’s decision of November 17, 2014” is granted;

2. “Defendant Marian Community Hospital’s petition for de novo review of special trial master’s decision of November 17,2014” is granted based solely upon Section 4 of the Peer Review Protection Act, 63 P.S. § 425.4; and

3. Plaintiff’s motion to compel responses to plaintiffs request for production of document no. 24, seeking the production of “ALT-0 summary report for Sentinel Event Report 148024” dated July 15, 2011, is denied.

      . “The therapeutic coordinators, behavioral unit activities coordinator and social worker participated in the root cause analysis because they were part of Mr. Brink’s care team on the behavioral health unit.” (Id. at ¶9).

      . Brink also contends that the Sentinel Event Report does not qualify as peer review since Brink’s behavioral health care providers participated in its development, and because Marian’s policy states that its root cause analysis focuses on systemic issues, not individual performance. (Docket entry no. 210 at pp. 8-9). The second affidavit of Marian’s former CEO confirms that the quality and peer review personnel who prepared the report “interview[ed] persons with knowledge of the event,” but none of the materials submitted by the parties suggest that the treating providers were involved in any manner with the drafting of the Sentinel Event Report. See King v. Stefenelli, 862 A.2d 666, 672-673 (Pa. Super. 2004) (decedent’s treating physician interviewed during “morbidity conference” as part of peer review process). Furthermore, the definitions of’ peer review” and “review organization” in the PRPA reflect that the evaluation of “the operations of hospitals” and “practice analysis” at a hospital facility are proper subjects of protected peer review. See 63 P.S. § 425.2. Thus, both of those alternate arguments by Brink may be summarily rejected.


author: PICCIONE, J.,

text:
    Kreitzer v. DeMatteo

      C.P. of Lawrence County,
    No. 10011 of 2013, CA

      Susan M. Papa, for plaintiffs.

      LeeAnn Fulena, for defendant Michael J. DeMatteo.

      Joseph V. Lesinski, for defendant ER Advanced Ceramics, Inc.
    June 5, 2015
   PICCIONE, J.,

This before the court for disposition are the preliminary objections to plaintiff’s complaint filed by defendant Michael J. DeMatteo (hereinafter, “defendant DeMatteo) and the preliminary objections to plaintiffs’ complaint filed on behalf of defendant ER Advanced Ceramics, Inc. (hereinafter, “defendant ER”). The instant action commenced on January 3, 2013, upon the plaintiffs,’ Douglas and Amy Kreitzer (hereinafter, collectively, the “plaintiffs”) filing a writ of summons against the defendants, Michael J. DeMatteo and ER Advanced Ceramics, Inc. (hereinafter, collectively, the “defendants”). Thereafter, on September 18, 2014, the plaintiffs filed the complaint. According to the complaint, plaintiff Amy Kreitzer is the former spouse of defendant DeMatteo, who is employed by defendant ER. Plaintiff Douglas Krietzer is the current spouse of plaintiff Amy Kreitzer. The plaintiffs aver that over a period of time unknown to them, a website was published on the internet, which was derived from a computer on the premises of defendant ER. This computer was within the exclusive control and possession of the defendants. The plaintiffs aver that the website and other internet sites listed the home address of the plaintiffs with accompanying maps and location identifiers. The website advertised sexual services or products using plaintiff Amy Kreitzer’s maiden name and home address. The website indicated that the plaintiff was offering sexual services and products. The plaintiffs aver that such statements and advertisements were false, offensive, and outrageous. The information on the website was derogatory and was viewed by members of the general public who understood its meaning. Such information was of the nature to cause mental suffering, shame, and humiliation to a person of ordinary sensibilities.

The plaintiffs aver that defendant ER knew or should have known that defendant DeMatteo was engaging in outrageous and prohibited activities, misuse of its computer equipment, and creating websites or internet content designed to injure or harass the plaintiffs. The plaintiffs further aver that they have suffered harm solely by the actual and/or imputed negligence of the defendants, and all injuries and damages suffered by the plaintiffs were caused solely, directly, and proximately by the defendants. The plaintiffs argue that defendant ER failed in the following ways: to protect the public or take any other safety precautions to prevent injury to the plaintiffs; to be attentive to the needs of the public, including the plaintiffs; to make a reasonable inspection or provide reasonable controls which would have controlled and revealed acts committed by defendant DeMatteo; to exercise reasonable care under all of the circumstances as to the public. These failures were the proximate result of damages to the plaintiffs including shock, damage, trauma to the plaintiffs’ nervous systems, severe emotional stress and mental suffering, loss of reputation, great pain and suffering, and a loss of enjoyment of life. As a result, the plaintiffs demand judgment in their favor and against the defendants for an amount in excess of the arbitration limits.

The complaint contains four counts: false light invasion of privacy and intrusion upon seclusion, negligent infliction of emotional distress, intentional infliction of emotional distress, and loss of consortium. The plaintiffs assert each count against both defendants, except for count three, intentional infliction of emotional distress, which the plaintiffs assert against only defendant DeMatteo. On November 13, 2014, defendant DeMatteo filed preliminary objections to the plaintiffs’ complaint, a brief in support thereof, and a praecipe for oral argument on the preliminary objections. On November 20, 2014, defendant ER also filed preliminary objections to the plaintiffs’ complaint, a brief in support thereof, and a praecipe for oral argument on the preliminary objections. Oral argument was scheduled for February 23, 2015, during which each party appeared in support of its position.

I. Defendant Dematteo’s Preliminary Objections

Defendant DeMatteo’s preliminary objections have been filed pursuant to Pa.R.C.P. 1019(a), 1019(f), 1028(a)(3), and 1028(a)(4). When a court is presented with preliminary objections to a complaint, all material facts averred in the complaint, as well as all reasonable inferences deducible therefrom, must be accepted as true. Hess v. Fox Rothchild, LLP, 925 A.2d 798, 805 (Pa. Super. 2007); Tucker v. Philadelphia Daily News, 757 A.2d 938, 941-42 (Pa. Super. 2000). The court must further determine, as a matter of law, whether, based on the facts averred in the complaint, the plaintiff may be entitled to recovery. Wiernik v. PHH U.S. Mortg. Corp., 736 A.2d 616 (Pa. Super. 1999). Preliminary objections should only be sustained when the court determines with certainty that, upon the facts averred, the law will not permit the recovery sought by the plaintiff. R. W. v. Manzek, 888 A.2d 740, 749 (Pa. 2005); Bourke v. Kazara, 746 A.2d 642, 643 (Pa. Super. 2000).

First, defendant DeMatteo argues that the complaint fails to plead with specificity or particularity when the subject communications were discovered by the plaintiffs. Rule 1019 of the Pennsylvania Rules of Civil Procedure requires that “[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form” and that “[ajverments of time, place and items of special damage shall be specifically stated.” Pa.R.C.P. 1019(a), (f).

Additionally, defendant DeMatteo argues that the complaint is insufficient pursuant to Pa.R.C.P. 1028(a)(3). “The pertinent question under Rule 1028(a)(3) is ‘whether the complaint is sufficiently clear to enable the defendant to prepare his defense,’ or ‘whether the plaintiff’s complaint informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense.’” Rambo v. Greene, 906 A.2d 1232, 1236 (Pa. Super. 2006) (citing Ammlung v. City of Chester, 302 A.2d 491, 498 n. 36 (Pa. Super. 1973)).

The complaint fails to identify any time or range of time or location, other than on the internet, whatsoever. The lack of these facts in the complaint renders the defendants unable to properly respond to it. As a result, defendant DeMatteo’s preliminary objection regarding factual specificity is hereby sustained.

Defendant DeMatteo’s next objection is in the nature of a demurrer, pursuant to Pa.R.C.P. 1028(a)(4) for legal insufficiency. Preliminary objections to a complaint may be filed on the grounds of legal insufficiency of that complaint. Pa.R.C.P. 1028(a)(4). The standard of review for a preliminary objection in the nature of a demurrer is as follows:

A preliminary objection in the nature of a demurrer admits as true all well-pled material, relevant facts and every inference fairly deducible from those facts. The pleader’s conclusions or averments of law are not considered to be admitted as true by a demurrer. Since the sustaining of a demurrer results in a denial of the pleader’s claim or a dismissal of his suit, apreliminaiy objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim upon which relief may be granted. If the facts as pleaded state a claim for which relief may be granted under any theory of law, there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected.

Baker v. Central Cambria School Dist., 24 A.3d 488, 492 n.6 (Pa. Cmwlth. 2011) (citing Palmer v. Bartosh, 959 A.2d 508, 512 n.2 (Pa. Cmwlth. 2008) (internal citations omitted)).

Defendant DeMatteo argues that the claim for negligent infliction of emotional distress is legally insufficient because the plaintiffs failed to allege that the defendants had a contractual or fiduciary duty to the plaintiffs, who either were subjected to physical impact, a zone of danger to fear impending physical injury, or that they observed a close relative experience a physical injury. As explained by the Superior Court in Weiley v. Albert Einstein Medical Center, 51 A.3d 202, 217 (Pa. Super. 2012):

[T]he cause of action for negligent infliction of emotional distress is restrict to four factual scenarios: (1) situations where the defendant had a contractual or fiduciary duty toward the plaintiff; (2) the plaintiff was subjected to a physical impact; (3) the plaintiff was in a zone of danger, thereby reasonably experiencing a fear of impending physical injury; or (4) the plaintiff observed a tortuous injury to a close relative.” (citing Doe v. Philadelphia Community Health Alternatives AIDS Task Force, 745 A.2d 25, 26 (Pa. Super. 2000), aff’d, 161 A.2d 548 (Pa. 2001).

It is unclear upon which factual scenario the plaintiffs rely for this claim. The complaint does not aver that the defendants had a contractual or fiduciary duty to the plaintiffs; the plaintiffs aver no physical injury or fear of impending physical injury as a result of the alleged conduct of the defendants; nor do the plaintiffs assert that they observed a tortuous injury to a close relative. The only conceivable theory upon which the plaintiffs rely is that defendant DeMatteo owed a fiduciary duty to the plaintiff Amy Kreitzer which arose from their prior marriage.

“A confidential relationship between two parties can give rise to fiduciary duties owed by one to the other.” Weiley, 51 A.3d at 218. “The essence of [a confidential] relationship is trust and reliance on one side, and a corresponding opportunity to abuse that trust for personal gain on the other. [Such relationship] appears when the circumstances make it certain the parties do not deal on equal terms, but, on the one side there is an overmastering influence, or, on the other, weakness, dependence or trust, justifiably reposed[.j” Basile v. H & R Block, Inc., 777 A.2d 95, 101 (Pa. Super. 2001). A party to a confidential relationship “must act with scrupulous fairness and good faith in his dealings with the other and refrain from using his position to the other’s detriment and his own advantage.” Id.

The relationship between ex-spouses does not contain similar attributes as those which establish a confidential, fiduciary relationship. Ex-spouses are not contractually bound to each other. Ex-spouses do not owe each other a duty to protect each other’s emotional well-being. In the instant circumstances, there is no indication that the ex-spouses have a child together for which they would need to accommodate each other. Ex-spouses are on equal ground rather than a dominant and weak party. Certainly, ex-spouses are in a position to use information obtained by one during the course of their relationship to harm the other; however, just because people who used to associate with one another possess information the misuse of which could lead to deep emotional harm, does not create a relationship as contemplated to establish a fiduciary duty. If the court were to take such a position, it would be compelled to find as a matter of law that a confidential, fiduciary relationship exists between even casual friends. Such is not the intent of the law. See Weiley, supra, “[Bjecause of this heightened standard [of care involved in a fiduciary relationship], not even all doctor-patient relationships could qualify.” As a result, plaintiff Amy Kreitzer and defendant DeMatteo’s relationship is insufficient to establish that they owed a fiduciary duty of care to one another. Therefore, since the existence of a confidential or fiduciary relationship is a necessary element to the claim of negligent infliction of emotional distress, neither plaintiff can establish this claim. Defendant DeMatteo’s preliminary objection in the nature of a demurrer to negligent infliction of emotional distress is hereby sustained.

Next, defendant DeMatteo argues that the intentional infliction of emotional distress claim against him should be dismissed because the plaintiffs fail to assert any specific physical injury. As a result, defendant DeMatteo argues that pursuant to Rule 1028(a)(4), this claim should also be dismissed. “While our courts recognize a cause of action for intentional infliction of emotional distress, we have allowed recovery in only very egregious cases.” Hoy v. Angelone, 691 A.2d 476, 482 (Pa. Super. 1997). In order to state a claim for intentional infliction of emotional distress, a plaintiff must establish “(1) a person who by extreme and outrageous conduct (2) intentionally or recklessly causes (3) severe emotional distress to another.” Manley v. Fitzgerald, 997 A.2d 1235, 1241 (Pa. Cmwlth. 2010). “The gravamen of the tort of intentional infliction of emotional distress is outrageous conduct on the part of the tortfeasor.” Kazatsky v. King David Memorial Park, 527 A.2d 988, 991 (Pa. 1987). The conduct of a defendant to a claim for intentional infliction of emotional distress was described by the Superior Court of Pennsylvania in Reardon v. Allegheny College, 926 A.2d 477, (Pa. Super. 2007), to be as follows:

[T]he conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in any civilized society... [I]t has not been enough that the defendant has acted with intent which is tortuous or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort.

(brackets and ellipsis in original) (citing Hoy, 720 A.2d at 753-754). “In addition to requiring that a plaintiff establish that the conduct complained of was outrageous, the Pennsylvania Supreme Court has required that the plaintiff present competent medical evidence to support the claim.” Britt v. Chestnut Hill College, 632 A.2d 557, 561 (Pa. Super. 1993).

Instantly, a review of the complaint shows that the plaintiffs aver that defendant DeMatteo created a website that advertised that plaintiff Amy Kreitzer was offering sexual services or products using plaintiff Amy Kreitzer’s maiden name and home address. While this description of conduct is certainly “outrageous,” it is merely a description. The plaintiffs do not set forth exactly what this website stated. This is not the type of information which would be brought out through discovery. The plaintiffs should already have seen the website and its contents. As a result, this claim is insufficiently specific. Additionally, the plaintiffs aver that they suffered a number of injuries as a result of the defendants’ alleged conduct; however, the plaintiffs failed to allege that the defendants’ conduct caused them to seek medical treatment. As stated above, this is a necessary element to the claim of intentional infliction of emotional distress. Therefore, defendant DeMatteo’s preliminary objection to this claim is sustained.

Lastly, defendant DeMatteo argues that plaintiffs’ claim for punitive damages should be dismissed. The plaintiffs request punitive damages only to the claim for intentional infliction of emotional distress. As stated above, defendant DeMatteo’s demurrer to the claim for intentional infliction of emotion distress is sustained, thereby striking the claim from the complaint. Defendant DeMatteo’s preliminary objection to punitive damages is, therefore, dismissed as moot. However, the court notes that in the event that the plaintiffs amend the complaint sufficiently to establish this claim, punitive damages could be sought. See Judge Technical Services. Inc. v. Clancy, 813 A.2d 879, 889 (Pa. Super. 2002) (“In Pennsylvania, punitive damages are awarded for outrageous conduct, that is, for acts done with a bad motive or with a reckless indifference to the interest of others”) (brackets, quotation marks, and citations omitted).

Based upon the foregoing, defendant DeMatteo’s preliminary objections are sustained in part and dismissed in part.

II. Defendant ER’s Preliminary Objections

Also before the court are defendant ER’s preliminary objections to the complaint. Defendant ER’s first preliminary objection is in the nature of a demurrer to the claim of false light invasion of privacy and intrusion upon seclusion. Defendant ER argues that this claim fails as a matter of law because the plaintiffs fail to assert intentional conduct on the part of defendant ER.

“The gist of privacy is the sense of seclusion, the wish to be obscure and alone, and it is a trespass to abuse these personal sensibilities.” Bennett v. Norban, 151 A.2d 476, 479 (Pa. 1959). “The right of privacy is a qualified right to be let alone; but to be actionable, the alleged invasion of that right must be unlawful or unjustifiable.” Harris by Harris v. Easton Pub. Co., 483 A.2d 1377, 1383 (Pa. Super. 1984). The tort for invasion of privacy consists of four torts: intrusion upon seclusion; appropriation of name or likeness; publicity given to private life; and publicity placing the person in a false light.

A claim for intrusion upon seclusion is set forth in the Restatement (Second) of torts as follows: “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” Restatement Second of Torts § 652B. “The invasion may be (1) by physical intrusion into aplace where the plaintiff has secluded himself; (2) by use of the defendant’s senses to oversee or overhear the plaintiff’s private affairs; or (3) some other form of investigation or examination into plaintiff’s private concerns.” Togouma v. Investigative Consultant Services, Inc., 4 A.3d 170 (Pa. Super. 2010) (internal quotation marks and citations omitted).

In the instant case, defendant ER argues that the plaintiffs are unable to maintain an invasion of privacy cause of action because they fail to assert any intentional conduct on defendant ER’s part. This court agrees. Invasion of privacy is an intentional tort and the plaintiffs argue that it was negligent, careless, and/or reckless in its actions. The plaintiffs argue that defendant ER is liable to the plaintiffs based upon a theory of vicarious liability; however, this theory is based upon an action for negligence. See Scampone v. Highland Park Care Center, LLC, 57 A.3d 582, 597 (Pa. 2012) (“Toprove negligence, a plaintiff may proceed against a defendant on theories of direct and vicarious liability, asserted either concomitantly or alternatively.”) (emphasis supplied). The complaint in the instant case does not assert a separate claim against defendant ER for negligence as it relates to hiring or supervising its employees; rather, the plaintiffs assert the invasion of privacy claim against both defendants. As a result, this claim must fail. Therefore, defendant ER’s preliminary objection in the nature of a demurrer to Count I, invasion of privacy, is hereby sustained.

Defendant ER’s next preliminary objection is also in the nature of a demurrer to negligent infliction of emotional distress. As stated above, the plaintiffs fail to establish a claim for negligent infliction of emotional distress against defendant DeMatteo. Because the plaintiffs’ theory of liability of defendant ER is based upon vicarious liability, this claim cannot stand alone against defendant ER. As a result, defendant ER’s preliminary objection in the nature of a demurrer to negligent infliction of emotional distress is hereby sustained.

Lastly, defendant Dematteo objections to plaintiff Douglas Kreitzer’s loss of consortium claim. The Superior Court of Pennsylvania has described a claim for loss of consortium as follows:

[A] right growing out of the marriage relationship which the husband and wife have respectively to the society, companionship and affection of each other in their life together. As thus defined and limited, any interference with this right of consortium by the negligent injury to one spouse, should afford the other spouse a legal cause of action to recover damages for that interference.

Burns v. Pepsi-Cola Metropolitan Bottling Co., 510 A.2d 810, 812 (Pa. Super. 1986).

“[A] consortium claim is grounded on the loss of a spouse’s services after injury.” Id. As found above, in sustaining each of defendant ER’s preliminary objections, the court has dismissed each of the claims against defendant ER. Defendant ER is therefore not liable to plaintiff Amy Kreitzer based upon the allegations in the instant complaint; so defendant ER cannot be liable to defendant Douglas Kreitzer for loss of consortium. As a result, defendant ER’s preliminary objection to plaintiff Douglas Kreitzer’s loss of consortium claim is sustained.

Based upon the foregoing, defendant ER’s preliminary objections are hereby sustained.

ORDER OF COURT

And now, this 5th day of June, 2015, the case being before the court on February 23, 2015, regarding the defendant Michael J. DeMatteo’s preliminary objections to plaintiffs’ complaint and ER Advanced Ceramics, Inc.,’s preliminary objections to plaintiffs’ complaint, with Susan M. Papa, Esquire, appearing and representing the plaintiffs, LeAnn A. Fulena, Esquire, appearing and representing defendant Michael J. DeMatteo, and Joseph V. Lesinski, Esquire, appearing and representing defendant ER Advanced Ceramics, Inc., and upon review of the applicable record, the court hereby order and decrees as follows:

1. Defendant Michael J. DeMatteo’s preliminary objections are sustained in part and dismissed in part pursuant to the attached opinion.

2. Defendant Michael J. DeMatteo’s preliminary objections are sustained on the lack of specificity, and the demurrers to intentional infliction of emotional distress and negligent infliction of emotional distress.

3. Defendant Michael J. DeMatteo’s preliminary objections are dismissed with regard to the punitive damages objection.

4. The plaintiffs shall have twenty (20) days from the date of this order to file an amended complaint against defendant Michael J. DeMatteo.

5. Defendant ER Advanced Ceramics, Inc. ⅛ preliminary objections are hereby sustained pursuant to the attached opinion.

6. The plaintiffs shall have twenty (20) days from the date of this order to file an amended complaint against defendant ER Advanced Ceramics, Inc.

7. The Prothonotary of Lawrence County shall provide a copy of this order of court and opinion upon counsel of record in accordance with the provisions of Pa.R.C.P. 236 and Rule L236.

      . The Supreme Court of Pennsylvania in Toney v. Chester County Hosp., 36 A.3d 83, 84 (Pa. 2011), held that a cause of action for negligent infliction of emotional distress may exist when a plaintiff has suffered only emotional distress “only in those special cases where there exists a special relationship where it is foreseeable that a breach of the relevant duty would result in emotional harm so extreme that a reasonable person should not be expected to endure the resulting distress.” This court notes that the decision in Toney was issued pursuant to an equally divided court; and, consequently, may only be cited for its persuasive value.