author: JEFFERIES, Member, PER CURIAM

text:
    Office of Disciplinary Counsel v. Luongo

      Disciplinary Board Docket No. 202 DB 2008.
    June 1, 2010
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

JEFFERIES, Member,

— Pursuant to rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania (“board”) herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On December 31,2008, Office of Disciplinary Counsel filed a petition for discipline at No. 202 DB 2008 against Michael Romeo Luongo, respondent. Thepetition charged Respondent with violations of the rules of Professional Conduct as a result of respondent’s failure to return or maintain funds he had received from Wachovia Bank, as garnishee, in a civil litigation. Respondent filed an answer to petition on April 13, 2009.

On May 18, 2009, Office of Disciplinary Counsel filed a Petition for Discipline at No. 75 DB 2009 against respondent. The petition charged respondent with violations of the rules of professional conduct arising out of respondent’s fabrication of a Bankruptcy Court order. Petitioner filed a motion to consolidate petitions for Discipline with the Disciplinary Board, which was granted by Board Order of July 9, 2009. Respondent filed an answer to petition for discipline at 75 DB 2009 on July 10, 2009.

A disciplinary hearing was held on September 16, 2009, before a District I Hearing Committee comprised of Chair Thomas M. Gallagher, Esquire, and Members Richard P. Haaz, Esquire, and Meredith S. Auten, Esquire. Respondent did not appear.

Respondent filed a petition for review with the Supreme Court on September 28, 2009. The subject matter of the petition was the Hearing Committee’s denial of motions made by respondent. Petitioner filed a motion to strike petition for review and quash appeal on October 8, 2009. By order of the Supreme Court dated December 1, 2009, the petition for review was struck and the appeal quashed.

The Hearing Committee filed a report on January 21, 2010, concluding that respondent violated the rules as charged in the petitions for discipline and recommending that respondent be disbarred from the practice of law.

No Briefs on Exception were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting on April 14, 2010.

II. FINDINGS OF FACT

The board makes the following findings of fact:

1. Petitioner, Office of Disciplinary Counsel, whose principal office is located at Pennsylvania Judicial Center, 601 Commonwealth Ave., Suite 2700, P.O. Box 62485, Harrisburg, Pennsylvania 17106, is invested, pursuant to Pa.R.D.E. 207, with the power and the duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of said rules of Disciplinary Enforcement.

2. Respondent is Michael Romeo Luongo. He was admitted to practice law in the Commonwealth of Pennsylvania in 1991. Respondent’s registered office address is Suite 1108, 235 Chestnut Street, Philadelphia, PA 19106. Respondent is subject to the jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

3. Respondent has no history of discipline.

The Wachovia Funds Matter

4. On the 2006-2007 Pennsylvania Attorney’s Annual Fee Form, respondent identified a PNC Bank account as an IOLTA account in which he maintained funds of clients or third persons on May 1, 2006 or at any time after May 1, 2005 subject to rule 1.15 of the Rules of Professional Conduct.

5. In Section D of the 2006 Form, respondent certified that he was familiar and in compliance with RPC 1.15. Respondent signed and dated the 2006 Form on May 19, 2006.

6. On the 2007-2008 Pennsylvania Attorney’s Annual Fee Form, respondent identified a TD Banknorth account as an IOLTA account in which respondent maintained funds of clients or third persons on May 1, 2007 or at any time after May 1, 2006 subject to RPC 1.15.

7. In section D of the 2007 Form, respondent certified that he was familiar and in compliance with RPC 1.15. Respondent signed and dated the 2007 Form on May 21, 2007.

8. Respondent instituted a civil suit in the Philadelphia Court of Common Pleas captioned Virginia Baltzell and Sylvia Luongo v. Matthew Barnett.

9. On or about January 21, 2003, respondent filed a Praecipe for Writ of Attachment against Garnishee, Gloria Levin Barnett, and Interrogatories in Attachment.

10. On or about May 6, 2003, respondent filed a Petition for Assessment of Damages against Barnett in the Philadelphia action.

11. On August 7,2003, the Honorable Esther Sylvester entered judgment and assessed damages based upon the petition in favor of plaintiffs and against Barnett in the total amount of $108,430.

12. On August 20, 2004, the judgment entered in the action in Philadelphia was transferred to Montgomery County.

13. On January 4, 2005, Howard Maniloff, Esquire, counsel for Barnett, filed an appeal to the Superior Court, following the denial of a Motion to Strike, which he filed on behalf of Barnett in the Philadelphia action.

14. On April 20, 2005, respondent filed a Praecipe for Writ of Execution and Interrogatories in Attachment against Wachovia, as garnishee. This was filed in the Montgomery County Court of Common Pleas under caption of Virginia Baltzell and Sylvia Luongo v. Matthew Barnett and Gloria Barnett.

15. On May 19, 2005, judgment was entered against Wachovia in the amount of $119,507.

16. On June 6,2005, Mr. Maniloff filed with the Superior Court an emergency motion to stay execution/distribution and to deposit funds with the court pending appeal.

17. On June 8, 2005, respondent filed an answer to the application for stay.

18. On June 8, 2005, Wachovia issued the Wachovia Funds check in the amount of $119,507 payable to “Virginia Baltzell, Sylvia Luongo & their attorney Michael Luongo.”

19. On June 9, 2005, the Superior Court issued an order, which granted the emergency motion to stay execution/distribution conditioned upon the trial court’s determination of the amount of security to be posted by appellant.

20. On June 9, 2005, Mr. Maniloff notified respondent of the June 9,2005 order, by sending a copy to respondent by facsimile.

21. On June 9, 2005, Mr. Maniloff received a confirmation that the facsimile had been received by respondent’s machine.

22. On June 10, 2005, Mr. Maniloff discovered that Wachovia had released the check to respondent and, consequently, Mr. Maniloff filed with the Superior Court an application for emergency enforcement to enforce stay of execution/distribution.

23. On June 10, 2005, the Superior Court issued an order granting the emergency motion to enforce the June 9, 2005 Order.

24. The June 10, 2005 order specifically stated that “[respondent] is directed to immediately return the disputed funds ($119,507.00) to Wachovia Bank, N.A...”

25. On June 10,2005, Mr. Maniloff notified respondent of the June 10 order by sending a copy of the order to respondent by facsimile.

26. On June 10, 2005, respondent deposited the Wachovia Funds in PNC.

27. On June 10, 2005, respondent knew of the June 10, 2005 order of the Superior Court.

28. On June 13,2005, respondent acknowledged receipt of the June 10, 2005 order.

29. On June 17, 2005, Mr. Maniloff filed with the Prothonotary of the Montgomery County Court of Common Pleas, certified funds from Wachovia Bank in the amount of $143,408.40 as required by the June 10, 2005 order.

30. On June 17, 2005, Mr. Maniloff filed with the Superior Court an “emergency motion of appellant Gloria Levin Barnett to hold Michael R. Luongo in civil contempt for violation of court order.”

31. By order of June 24, 2005, the Superior Court: 1) remanded the matter and directed the trial court to hold a contempt hearing to determine the issues in the June 17, 2005 Motion for Civil Contempt; 2) directed the trial court to determine whether the matter should be referred to the disciplinary board; and 3) retained jurisdiction.

32. Pursuant to the June 24,2005 order, Judge Sylvester scheduled the contempt hearing for July 19,2005 and July 20, 2005.

33. On July 20, 2005, respondent appeared and presented the testimony of Michael O. Krause, his law clerk and legal assistant.

34. Mr. Krause testified that on June 9, 2005, he obtained the Wachovia Funds from the law office of Jon Sirlin, Esquire; he proceeded to PNC Bank where he met respondent; respondent made out a deposit slip and placed the slip and Wachovia Funds in an “express deposit box”; the June 10, 2005 order was received via facsimile in respondent’s office; and he notified respondent of the receipt of the order.

35. Respondent was scheduled to testify on July 20, 2005 after the luncheon break but failed to return to the courtroom.

36. Respondent did not contact Judge Sylvester.

37. On July 21,2005, respondent filed with the Superior Court an Emergency Motion for Leave to File a response in opposition to appellant’s Motion for Civil Contempt.

38. On August 5,2005, respondent filed in the Superior Court motions for sanctions against Wachovia; Wachovia’s attorney, Mr. Sirlin; appellant Barnett, and appellant’s attorney, Mr. Maniloff.

39. By Order of August 19, 2005, the Superior Court remanded the matter to the trial court for 45 days to complete the trial court’s hearings in compliance with the June 24, 2005 order as well as to consider motions for sanctions filed by respondent and responses thereto.

40. On September 15, 2005, respondent filed a second Praecipe for Writ of Execution against Wachovia, as garnishee, despite the fact that a stay had been ordered by the Superior Court.

41. Pursuant to the Superior Court’s Order of August 19,2005, Judge Sylvester scheduled a hearing for October 6, 2005.

42. By letter dated October 4, 2005, directed to Judge Sylvester, respondent acknowledged that he was notified of the date of the hearing.

43. Respondent failed to appear at the October 6, 2005 hearing before Judge Sylvester.

44. On October 6, 2005, Judge Sylvester entered an order granting Mr. Sirlin’s request for sanctions against respondent in the amount of $5,000.

45. On October 17,2005, as a direct result of respondent filing the second Praecipe for Writ of Execution against Wachovia, Mr. Maniloff filed a second emergency petition to stay execution and to hold respondent in civil contempt for violation of the June 9, 2005 order and June 10, 2005 order.

46. By order dated October 21, 2005, the Superior Court granted Mr. Maniloff’s second emergency petition and further remanded the matter to the trial court to determine: 1) the contempt motion; 2) the imposition of sanctions; and 3) whether respondent should be referred to the Disciplinary Board.

47. On October 24, 2005, Judge Sylvester filed a recommendation to Superior Court, in which she recommended that respondent return the $119,507 to Wachovia Bank within ten days of date of order; and the matter be referred to the Disciplinary Board.

48. On October 29, 2005, respondent filed a Praecipe to Withdraw the Writ of Execution, which had been filed on September 15, 2005, with the Montgomery County Prothonotary’s Office.

49. On November 4, 2005, Mr. Sirlin had judgment entered on Judge Sylvester’s October 6, 2005 order granting sanctions.

50. On November 28, 2005, respondent filed an appeal from the November 4, 2005 order of Judgment to the Pennsylvania Superior Court.

51. On October 4, 2006, the Superior Court reversed and remanded the matter to the trial court with instructions.

52. On November 3, 2006, Mr. Maniloff filed in the Superior Court an application for Enforcement of the June 10, 2005 order.

53.On November 15,2006, the Superior Court entered an order referring the matter to the trial court for review and enforcement of the trial court’s previous directive issued against respondent.

54. By order dated January 17, 2007, Judge Sylvester directed respondent to personally appear on January 25, 2007 to return to Barnett the sum of $119,507.

55. The January 17, 2007 order was timely served on respondent.

56. Respondent failed to appear on January 25, 2007.

57. By order of May 11, 2007, Judge Sylvester: 1) held respondent in civil contempt for his failure to comply with the June 10, 2005 order and for his failure to appear at the January 25, 2007 hearing; 2) issued a bench warrant directing the Sheriff of Philadelphia to bring respondent before Judge Sylvester on May 31, 2007; 3) directed that the court determine at the time of the bench warrant hearing if respondent should be committed to prison until such time as respondent purges himself of the contempt by returning the $119,507 plus paying the computed interest and attorney’s fees and costs to Barnett; and 4) directed the Prothonotary to forward a copy of the order to the Disciplinary Board.

58. On May 23,2007, the May 11, 2007 order was sent to respondent, which he received.

59. On May 30, 2007, the Philadelphia Sheriff’s office apprehended respondent on the bench warrant and brought respondent before Judge Sylvester.

60. On May 30, 2007, respondent informed the Judge that he did not have the money stated in the May 11,2007 order and specifically stated, “I don’t have it because it’s been disbursed to my clients and it’s been spent. And so basically the money is not there. I don’t have $120,000.1 just do not have that much money.”

61. As a result of respondent’s failure to pay the funds specified in the order, on May 30, 2007 Judge Sylvester had respondent incarcerated until such time as the funds were paid.

62. After several days in jail, respondent paid the money to purge himself of the contempt.

63. On June 22, 2007, respondent filed an appeal to the Superior Court from the May 11, 2007 order.

64. On July 3, 2007, Judge Sylvester entered an order requiring respondent to file a concise statement of matters complained of on appeal within 21 days of the date of the order.

65. Respondent filed his Concise Statement on July 24, 2007.

66. On August 10, 2007, respondent filed an appeal to the Superior Court from the January 19, 2007 order.

67. The Superior Court consolidated the appeals on October 4, 2007.

68. On October 12, 2007, Judge Sylvester filed her opinion in the consolidated appeals.

69. On December 7, 2007, Mr. Maniloff filed an application to dismiss the appeals for respondent’s failure to file a brief.

70. On December 17,2007, respondent filed an answer to the application.

71. On January 8, 2008, the Superior Court entered an order directing respondent to file a designation of contents of reproduced record by January 15, 2008 and to file a brief by January 29, 2008.

72. The appeals were dismissed for respondent’s failure to file a brief.

73. At the disciplinary hearing on September 16, 2009, petitioner presented the testimony of Judge Sylvester, Howard Maniloff, Karen Grassie, and Michael Lift.

74. Ms. Grassie credibly testified that:

a. she is an assistant branch manager for PNC Bank located at 16th and Market Streets in Philadelphia;
b. she brought to the hearing PNC records for respondent’s trust account for the period of May 2005 through July 2005, pursuant to subpoenas issued by petitioner;
c. she reviewed the subpoenaed records and determined that a deposit and deposit slip for $119,507 were among the records;
d. the deposit slip was dated June 10, 2005;
e. the deposit slip was a special slip that could only be produced by a teller;
f. it could only be deposited through a teller because it was for certified funds; and
g. the deposit was not made using an “express deposit box envelope.”

75. Mr. Lift credibly testified that, among other things:

a. he has been employed as an auditor for petitioner since 2001;
b. he reviewed bank records for respondent’s IOLTA accounts;
c. he compiled information obtained from the particular bank’s statement and prepared a spreadsheet;
d. on June 10, 2005, $119,507 was deposited;
e. the daily balance on respondent’s bank statement on June 10, 2005 was $97,074.28, which balance reflects all transactions that were completed by the end of that day;
f. he reviewed all deposits and disbursements made during the period from May 31, 2005 through October 31, 2005 and was able to reconcile the deposits and corresponding disbursements as they related to certain clients;
g. based upon his reconciliation of deposits made on behalf of certain clients, he was able to determine that all other disbursements made from June 9, 2005 through October 31, 2005 were attributed to the June 10, 2005 deposit;
h. based upon his analysis, he could conclude that from June 9, 2005 to October 31, 2005, respondent received a total of $72,150.49 attributed to the June 10, 2005 deposit;
i. based upon his analysis, he could conclude that, with the exception of approximately $2000, all funds attributed to the June 10, 2005 deposit were expended by respondent; and
j. there was never a time that any funds were put into either respondent’s PNC account or TDB account to recompense the June 10, 2005 deposit.

76. The June 10, 2005 account balance contained in Mr. Litt’s spreadsheet for respondent’s PNC Bank was $97,074.28 and is consistent with the daily ledger balance indicated for respondent’s PNC IOLTA account.

77. Judge Sylvester credibly testified, among other things, that:

a. she expected that the order that she issued would have been honored as they are in “normal” cases but since 1986 this was the first time she had a “lawyer that is just like, you now, disregarding everything”, (N.T. 147-148)
b. she guessed that “he was trying to stop us from doing [the contempt hearing]. Yes it was a problem because we had to - [her] file [was] at least 2 feet tall. [She means], it was just like one thing after another”; (N.T. 148)
c. “every step of the way, every step of the way, he was trying to stop the court’s order. [She] never met anybody like him” (N.T. 148)
d. respondent’s behavior caused her and her staff to be in fear.

78. Mr. Maniloff credibly testified, among other things, that:

a. “There were countless motions filed [by respondent] in Superior Court and in the trial court. There were days of hearing.” (N.T. 159-160)
b. respondent sent him a letter via facsimile in which Respondent enclosed a copy of an “express deposit slip” for the Wachovia Funds;
c. respondent was at times deceptive, disrespectful, disruptive and threatening to Mr. Maniloff and Mr. Maniloff’s clients;
d. he believes that respondent attempted to “frame” him by posting inappropriate comments in the Philadelphia City Paper regarding a Philadelphia Court of Common Pleas judge;
e. he determined, through the service of subpoenas, that the address from which the comments were posted, was respondent’s own Internet Protocol (IP) address; and
f. as the result of the posting he was embarrassed and wrote a letter to Judge Jones to explain that it was not he who posted the comments.

79. Respondent did not deposit the Wachovia Funds using the “express deposit” at PNC.

80. Respondent did deposit the WachoviaFunds through the teller’s window.

81. Respondent disbursed the Wachovia Funds to himself or for the benefit of others.

82. Respondent failed to comply with the June 9, 2005 order and the June 10, 2005 order.

83. At the time respondent or his representative received the Wachovia Funds, respondent knew that Mr. Maniloff had filed a motion to stay the proceedings with Superior Court.

84. At the time respondent deposited the Wachovia Funds in PNC on June 10,2005, he knew that the Superior Court had entered the June 9, 2005 order, staying the proceedings.

85. Respondent backdated checks 1077, 1080, 1082, and 1084 in order to avoid the clear implications of the June 9, 2005 order.

86. Respondent failed to maintain the Wachovia Funds after he was notified of the June 9, 2005 order and June 10, 2005 order.

87. Respondent failed to return the Wachovia Funds after he was notified of the June 10, 2005 order.

The Bankruptcy Court Matter

88. On March 12, 2009, Respondent was a tenant at 2000 Delancey Street, Apartment 3-E, Philadelphia.

89. On February 3,2009, the Sheriff received a Writt of Possession for the premises.

90. On February 24, 2009, Deputy Sheriff John J. Polsky posted the premises with the Writ of Possession.

91. Deputy Polsky wrote a note on the Writ of Possession that the Writ was the last notice before an eviction and the Sheriff’s telephone number was included.

92. Respondent did not call the Sheriff prior to the eviction.

93. The eviction was scheduled for March 13, 2009.

94. It is the Sheriff’s procedure that the deputies will go to the property on the day before the scheduled eviction to attempt contact with the tenant.

95. Deputy Polsky posted the eviction date on a door at the premises and also placed the posting in respondent’s mailbox on two occasions.

96. Deputy Polsky went to the premises on the day before the scheduled eviction. The previous postings were no longer on the door or in the mailbox.

97. On March 12, 2009, Lieutenant James Lee received a two page facsimile from respondent which contained respondent’s letterhead cover sheet and a copy of a “voluntary petition” from the United States Bankruptcy Court indicating that respondent had filed for bankruptcy and “relief ordered” on March 12, 2009. The order purported to have been signed by Judge Diane W. Sigmund.

98. Upon receipt of the voluntary petition and the stamped “relief ordered”, the eviction was stopped.

99. After notifying plaintiff’s counsel, Lieutenant Lee contacted the bankruptcy court and determined, among other things, that:

a. respondent had not fi led any matter with the bankruptcy court;
b. Diane Sigmund was no longer a bankruptcy court judge;
c. respondent’s last actual bankruptcy fi ling was in 1995;
d. if the bankruptcy had been electronically filed it would not have a date-stamp and time in the lower right-hand comer, and;
e. the bankruptcy was fraudulent.

100. Lieutenant Lee attempted to call respondent at respondent’s office but there was no answer.

101. On March 12, 2009, Lieutenant Lee made handwritten notes on the facsimile cover sheet to memorialize his conversations with plaintiff’s counsel and the bankruptcy court clerk.

102. Lieutenant Lee received the facsimile with certain individual items or markings on the bankruptcy court order already circled.

103. The Sheriff’s solicitor, Ed Chew, researched the docket and confirmed that there was no bankruptcy filing.

104. The eviction was rescheduled for March 16, 2009.

105. On March 16, 2009, Deputy Polsky and the property manager gained entry to the building and upon arriving at respondent’s apartment found a note on the door that warned of bodily injury or death and that the residence was “boobie-trapped.”

106. Deputy Polsky knocked on the apartment door but did not receive a response.

107. Based on the threatening nature of the contents of the note, Deputy Polsky called the Sheriff’s office to obtain police backup.

108. After Deputy Polsky called for backup, respondent answered the door and told him that the note was for burglars, following which respondent left on a bicycle.

109. Marie Needham testified at the disciplinary hearing. She is employed by the bankruptcy court as the operations manager and is familiar with the policies and procedures of the bankruptcy court clerk’s office.

110. Ms. Needham testified credibly that respondent did not file for bankruptcy in 2009, but did file in 1995. At that time, an original and two copies would have been required, which were date-stamped by hand using a date/ time machine.

111. The judge assigned to respondent’s 1995 bankruptcy was Diane W. Sigmund.

112. On March 12,2009, Judge Sigmund was no longer sitting as a bankruptcy judge as she was retiring and was not assigned any cases.

113. Ms. Needham checked to see if any bankruptcy existed under the docket number purportedly used by respondent and determined that the docket number was assigned to a different debtor.

114. The date stamp on the purported petition sent by respondent to the Sheriff’s office is not the type of date stamp used by the bankruptcy court.

115. The purported bankruptcy petition is not legitimate, and is a forged and fraudulent document manufactured by respondent.

116. Respondent failed to appear for the disciplinary hearing.

117. Respondent has not accepted responsibility for his actions and has not shown remorse.

III. CONCLUSIONS OF LAW

By his actions as set forth above, respondent violated the following Rules of Professional Conduct:

1. RPC 1.15(a) - A lawyer shall hold the property of clients or third persons that is in a lawyer’s possession separate from the lawyer’s own property. Such property shall be identified and appropriately safeguarded.

2. RPC 1.15(b) - A lawyer shall promptly deliver to the client or third person any property that the client or third person is entitled to receive.

3. RPC 1.15(c) - When a lawyer is in possession of property in which two or more persons, one of whom may be the lawyer, claim an interest, the property shall be kept separate by the lawyer until the dispute is resolved.

4. RPC 3.1 - A lawyer shall not bring or defend a proceeding or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.

5. RPC 3.3(a)(1) - A lawyer shall not knowingly make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.

6. RPC 3.3(a)(3) - A lawyer shall not knowingly offer evidence that the lawyer knows to be false.

7. RPC 3.4(b) - A lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witness’ testimony or the outcome of the case; but a lawyer may pay, cause to be paid, guarantee or acquiesce in the payment of: (1) expenses reasonably incurred by a witness in attending or testifying, (2) reasonable compensation to a witness for the witness’ loss of time, and (3) a reasonable fee for the professional services of an expert witness.

8. RPC 3.5(d) - A lawyer shall not engage in conduct intended to disrupt a tribunal.

9. RPC 4.1(a) - In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.

10. RPC 4.4(a) - In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person.

11. RPC 8.4(a) - It is professional misconduct for a lawyer to violate or attempt to violate the rules of professional conduct or assist or induce another to do so, or do so through the acts of another.

12. RPC 8.4(b) - It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.

13. RPC 8.4(c) - It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

14. RPC 8.4(d) - It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

IV. DISCUSSION

This matter is before the Disciplinary Board for consideration of two petitions for discipline filed against respondent, which were consolidated for a single disciplinary hearing before the hearing committee. Respondent filed answers to the petitions, but failed to appear at the hearing.

Petitioner has the burden of proving ethical misconduct by a preponderance of evidence that is clear and satisfactory. Office of Disciplinary Counsel v. Griasby, 493 Pa. 194, 425 A.2d 730 (1981). The evidence in the Wachovia Funds matter shows that respondent knowingly and willfully disbursed funds collected by him despite a Superior Court order directing him to return the funds in the amount of $119,507 to Wachovia Bank.

On June 9, 2005, the Superior Court entered an order staying the proceedings pending the outcome of an appeal. The evidence demonstrates that respondent had knowledge of the June 9, 2005 order. On June 10, 2005, the Superior Court entered an order directing that “ [respondent] is directed to immediately return the disputed funds ($119,507.00) to Wachovia Bank, N.A....” The evidence demonstrates that respondent had knowledge of the June 10, 2005 order. Respondent did not return the funds as directed by the Superior Court nor did he retain them in his IOLTA account pending the outcome of the underlying litigation. In fact, respondent committed misappropriation and conversion by disbursing the Wachovia Funds to himself and others until the Funds were nearly depleted in November 2005.

Ultimately, following a series of procedural hurdles and hearings, many of which respondent failed to attend, respondent was held in civil contempt and spent several days in j ail in 2007 before he paid the funds to purge himself of the contempt. The evidence of record demonstrates that during the course of the litigation, respondent engaged in many acts of professional misconduct, including making false statements of fact and law to the tribunal and prejudicing the administration of justice by his disruptive conduct before the courts.

The second matter before the board concerns respondent’s actions in regard to an eviction proceeding against him. Respondent was scheduled to be evicted from his apartment on March 13, 2009. The evidence of record demonstrates that in an attempt to halt the eviction, respondent sent to the Sheriff by facsimile a purported bankruptcy petition and order of the bankruptcy court purportedly signed by Judge Diane Sigmund. As a result of these documents, the eviction process was cancelled on the eve of the eviction. These documents were later determined to be false and fraudulent.

Petitioner has met its burden of proving that respondent violated the rules of professional conduct as charged in the petitions for discipline. The board’s responsibility is to recommend appropriate discipline to address such misconduct. In reaching a recommendation, the board may consider aggravating and mitigating factors pertinent to the case.

Herein, a disciplinary hearing was scheduled for September 15, 2009. On September 14, 2009, respondent attempted to postpone the proceedings by claiming to file a petition for review with the Supreme Court of Pennsylvania. In fact, no petition for review was transmitted to the court on September 14, 2009, or anytime during that week. Respondent failed to appear at the disciplinary hearing on September 15, and the Hearing Committee Chair postponed the hearing in an abundance of caution.

The Hearing Chair issued to respondent an order to Show Cause and Notice to appear on September 16, 2009. Without explanation, respondent failed to appear. The hearing proceeded in respondent’s absence. Respondent’s failure to appear is an aggravating factor in this matter. His actions are a continuation of the disruptions he has caused to other tribunals before which he has appeared or was scheduled to appear.

Misappropriation and conversion of entrusted funds constitutes serious misconduct and requires a severe sanction. This misconduct, coupled with respondent’s dishonest actions in presenting a fraudulent bankruptcy petition and court order, persuades the board that respondent must be disbarred from the practice of law.

There are many prior cases that support a disbarment recommendation. Where an attorney has engaged in conversion, commingling, forgery and misrepresentation, the court has firmly concluded that the magnitude of the derelictions and its impact upon the legal profession and the administration of justice required the imposition of the most severe sanction. Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (Pa. 1986); Office of Disciplinary Counsel v. Lucarini 490, Pa. 560, 417 A.2d 186 (Pa. 1983).

V. RECOMMENDATION

The disciplinary board of the Supreme Court of Pennsylvania unanimously recommends that the respondent, Michael Romeo Luongo, be Disbarred from the practice of law in this Commonwealth.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

ORDER

PER CURIAM

And now, this August 20, 2010, upon consideration of the report and recommendations of the Disciplinary Board dated June 1, 2010, it is hereby

Ordered that Michael Romeo Luongo is disbarred from the Bar of this Commonwealth and he shall comply with all the provisions of Rule 217, Pa. R.D.E.

It is further ordered that respondent shall pay costs to the disciplinary board pursuant to Rule 208(g), Pa. R.D.E.


source: Caselaw Access Project

author: HAZEL, J,

license: Public Domain

text:
    Commonwealth v. Brice

      C.P. of Delaware County,
    no. 8354-08.

      A. Sheldon Kovach, for Commonwealth.

      Jason R. Antoine, for defendant.
    September 21, 2010
   HAZEL, J,

— Defendant Genareo Brice was granted leave to file an appeal nunc pro tunc as a result of Post Conviction Relief Act (PCRA) proceedings in the above matter. In his Statement of Matters Complained of on appeal defendant challenges the sufficiency of the evidence and the consecutive nature of the sentence imposed.

After a jury trial defendant was found guilty of robbery, theft by unlawful taking and possessing an instrument of crime. On July 13, 2009 the following sentence was imposed: 48 to 240 months’ incarceration on Information 8354C-08, robbery, and a consecutive sentence of 12 months minus one day to 24 months minus a day on Information 83541-08, possessing an instrument of crime. No sentence was imposed on Information 8354E-08, theft by unlawful taking, due to merger principles. These sentences fell within the standard range recommended by the Pennsylvania Commission on Sentencing Guidelines.

Sufficiency of the Evidence

In assessing the sufficiency of the evidence we view the evidence in the light most favorable to the verdict winner, the commonwealth, to determine whether there is sufficient evidence to enable the fact-finder to find every element of the crimes charged beyond a reasonable doubt. “[T]he facts and circumstances established by the commonwealth need not preclude every possibility of innocence” and “[a]ny doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances.” Commonwealth v. Gray, 867 A.2d 560, 567 (Pa.Super. 2005). The commonwealth may sustain its burden of proving every element of the crime charged beyond a reasonable doubt by means of wholly circumstantial evidence. Id. The credibility of the witnesses and the assessment of the weight of the evidence are matters within the province of the jury as the trier of fact who is free to believe all, part or none of the evidence produced at trial. Id.

“A person is guilty of robbery if, in the course of a theft, he...threatens another with or intentionally puts him in fear of immediate serious bodily injury....” 18 Pa.C.S.A. §3701(a)(l)(ii). See also Commonwealth v. Spencer, 639 A.2d 820 (Pa. Super. 1994). “A person commits the crime of ‘theft by unlawful talcing’ if he unlawfully takes the movable property of another with intent to deprive him thereof.” Commonwealth v. Alford, 880 A.2d 666, 675-676 (Pa.Super. 2005) quoting Commonwealth v. Hopkins, 747 A.2d 910, 914 (Pa. Super. 2000). “A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally.” 18 Pa.C.S.A. § 907(a). Section 907(d) includes: “[ajnything used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have” within the definition of an “instrument of crime.” 18 Pa.C.S.A. § 907(d)(2). The defendant’s criminal purpose “provides the touchstone of liability” for possessing an instrument of crime and this criminal intent may be inferred from the circumstances surrounding possession. Commonwealth v. Andrews, 564 Pa. 321, 337, 768 A.2d 309, 317 - 318 (Pa. 2001) citing Model Penal Code § 5.06 comment; Commonwealth v. Hardick, 475 Pa. 475, 479, 380 A.2d 1235, 1236-37 (Pa. 1977). The criminal purpose may be inferred from the circumstances surrounding the possession. See Commonwealth v. Moore, 476 Pa. 19, 381 A.2d 845 (Pa. 1978).

The facts, viewed in the light most favorable to the commonwealth follow. On October 15,2008 at about 7:30 a.m. Sonyette Williams, was on her way to work at the Garden Hill Learning Center, a day care center in Darby, Delaware County, Pennsylvania. N.T. 3/19/09 p. 6. She disembarked the trolley at Front & Main Streets in Darby and saw defendant standing at the trolley stop. Thinking this was odd, she crossed to the opposite side of Front Street. Id. at 7, 50-51. As she continued walking to the Learning Center defendant crossed the street and followed her. Id. at 7-11. Defendant asked Williams about five or six personal questions as he followed her at a distance of about eight feet. She responded at first, looking at defendant’s face for about three seconds each time she responded. Id. at 11-14. Eventually defendant asked if he was “going to have to chase [Williams] and she said “yes” and began to walk faster. Id. at 14-16. Defendant “sped up” and when he reached Williams he put a black gun to her back and said “give me everything you have.” Id. at 17-20. After a struggle defendant “snatched” Williams’ book bag which contained, among other things, her wallet, Social Security card, photo driver’s license, Family First medical card, SEPTA tokens, an algebra book, debit cards and her keys. Id. at 20-21,42, 55-56, 78. After he took the book bag he demanded, and took, her cell phone. He then ran slowly back down Front Street and disappeared in the space between two row houses. Id. 21 -23. During the three minutes that transpired between Ms. Williams getting off the trolley and the robbery she looked at defendant’s face about six to eight times, each time for three to four seconds. As he took her book bag she looked directly at his face. Id. at 32. While defendant wore the hood on his tan hoodie “up” Ms. Williams was able to see his full face. Id. at 90.

Ms. Williams called her co-worker, Glenda Saunders, to tell her that she would not be able to open the day care because her keys were taken during the robbery. Id. at 78. In the course of that conversation she described her assailant to Ms. Saunders. Id. at 79. The next day, October 16, 2008, Ms. Williams went to work, arriving sometime around 8:00 a.m. Id. at 32-33. At about 10:00 a.m. Ms. Saunders, approached Ms. Williams and asked her to describe the man that robbed her the day before. Id. at 34-35. She told Ms. Williams that she thought she had just seen someone matching his description. Id. at 79. Ms. Saunders then immediately drove Ms. Williams to an address on Front Street where defendant sat, wearing the same clothes he was wearing during the robbery. Id. at 36-40. Ms. Williams immediately recognized him from the robbery and called the police. Id. at 40-42. Ms. Williams and Ms. Saunders went to the police station. From the police station a radio transmission dispatched officers to the unit block of Front Street where defendant was seen. Within a minute defendant, who was the only person in the area and matched Ms. Williams’ description, was detained. Id. at 106 128-29. A patdown was conducted and a BB gun and a knife were recovered from defendant’s waistband. Id. at 130-31. Officer Christine McAleer detained defendant and conducted the patdown. Regarding the BB gun she testified: “As I was trying to retrieve it from his waistband I actually had to hold it in my hands and feel the weight of it to confirm that it wasn’t a real gun because it is pretty...real looking.” Id. at 132. Both the gun and the knife were introduced into evidence. See Id. at 131,172. Defendant was wearing a tan hoodie. Id. at 147. Officer David Cuddhy of the Darby Borough Police Department brought Ms. Williams to Front Street where she identified defendant as the man who robbed her with 100 percent certainty. Id. at 106.

After defendant’s arrest a search warrant for his home, 14 North Front Street, was obtained and executed. Id. at 138,147. The warrant was executed on October 16, 2008 at about 12:30 p.m. Id. at 139. No one was present when the search began but during the course of the search defendant’s mother, Diana Balls, appeared. Id. In the middle upstairs bedroom police found a cardboard box with Ms. Williams’ driver’s license, Social Security card, medical card, a photograph of Ms. Williams, and a VISA card bearing Ms. Williams’ name lying on top of it. Id. at 141. Aj ob application, a W-2 form and four other documents bearing the name Genareo Brice were discovered behind the box. Id. at 143-45. Ms. Balls testified that defendant shared this bedroom with his brother. Id. at 176-78.

Defendant offered the testimony of two witnesses. Defendant’s mother Diana Balls testified that she found the items that were seized in her backyard on the morning of October 15th and that she assumed they belonged to a friend of one of her children. She placed them on the box in her boys’ bedroom. Id. at 176-78. Ms. Balls admitted that she did not know Ms. Williams, did not recognize the person in either the photo or in the driver’s license photo and that during the period following her son’s arrest up until the day before trial she never told the police that she discovered Ms. Williams’ property and placed it in her son’s room. Id. at 186-93. Danisha Wells, the mother of defendant’s child, testified that from October 5, 2008 to the morning of October 16, 2008 defendant was with her and their newborn daughter on King Street in Chester, Pa. Id. at 197-98. Ms. Wells admitted that, other than family members, she told no one including law enforcement that defendant was with her when this robbery took place. Id. at 205.

Based on the foregoing evidence the commonwealth proved, beyond a reasonable doubt, that Sonyette Williams was intentionally put in fear of immediate serious bodily injury in the course of a theft. Indeed, defense counsel conceded this fact in closing argument. See Id. at 218. Rather, he argued that this was a case of mistaken identity. The jury however, chose to accept Ms. Williams’ unwavering and certain identification as credible. Her testimony, corroborated by the fact that much of the property taken from her during the robbeiy was discovered in defendant’s bedroom,is beyond reasonable doubt. Where a witness states positively and without equivocation that a defendant is the person who committed the crime that proof is sufficient to support the verdict. See Commonwealth v. Patterson, 940 A.2d 493 (Pa.Super. 2007). Conversely, where identification rests on the vague, tenuous, and uncertain testimony of an eyewitness a conviction will not stand. See e.g. Commonwealth v. Pereria, 280 A.2d 623 (Pa. Super. 1971); Commonwealth v. Sharpe, 10 A.2d 120 (Pa. Super. 1939). In Commonwealth v. Patterson, supra, the Superior Court affirmed the appellant’s conviction where the victim “testified positively and without qualification that appellant perpetrated the offenses.” Patterson was one of three men who entered the victim’s home at about 1:00 a.m., waking the victim from his sleep. One of the men, who the victim knew, asked the victim for a ride. When he refused after abut five minutes Patterson held the victim at gunpoint for about two minutes while the others rummaged through the apartment. The room was lit only by light from an adj oining room and the men did not where masks. Days later the victim saw Patterson at a gas station with another man. He called the police and Patterson was arrested. The victim identified Patterson’s photo from an array and made in-court identification, testifying that he had no doubt that Patterson was the man who held him at gunpoint.

In this case Ms. Williams identified defendant unequivocally. She testified that she saw his face several times for a few seconds each time as he followed her. It was daylight and she noticed him immediately when she came off the trolley because he was waiting at the stop but did not get on. She testified that most of the men in the area were African and he was unusual because he had no accent and appeared to be African American. She consistently described what he was wearing and looked directly at his face when he put the gun to her back. In addition to delivering a general charge regarding the credibility of witnesses the court instructed the jury that in evaluating Ms. Williams’ identification testimony it should consider inter alia, whether she had a good opportunity to observe the perpetrator of this offense, the existing lighting conditions, the perpetrator’s proximity and whether it enabled her to observe facial and other physical conditions and his clothing, the circumstances surrounding her earlier identification, the level of certainty she displayed in making the identification, her consistency in describing the perpetrator, and whether she identified any other suspect in connection with this crime. N.T. 3/19/09 p. 247. Ms. Williams’ credibly testified that she looked at defendant intermittently in daylight for a period of about three minutes as he followed her and looked directly at his face when he put'his gun in her back. She consistently described his physical characteristics and identified him with absolute certainty at the time of his arrest and in-court. Her identification was corroborated by the fact that her stolen property was in defendant’s bedroom. All of this evidence enabled the jury to find, beyond a reasonable doubt, that defendant committed this robbery. See generally Commonwealth v. Holmes, 663 A.2d 771 (Pa.Super. 1995); Commonwealth v. Fromal, 572 A.2d 711 (Pa. Super. 1990); Commonwealth v. Boone, 429 A.2d 689 (Pa. Super. 689 (Pa. Super. 1981) Commonwealth v. Jellots, 419 A.2d 1184 (Pa.Super. 1980).

Regarding the offense of possession of an instrument of crime, the circumstantial evidence proved defendant’s intent to employ the BB gun criminally beyond a reasonable doubt. Ms. William’s testified that she felt defendant put the gun to her back. She saw that it was black, looked like a weapon police would carry and felt “heavy.” N.T.3/19/09 pp. 17-19. At the time of the arrest Officer McAleer was concerned that the gun was “real.” She had to feel its weight before she concluded it was a BB gun. Finally, the evidence supports the conclusion that defendant used this gun to commit the robbery for which he has been convicted.

Sentence

Defendant claims the sentence imposed, forty-eight to 240 months’ incarceration for the robbery, to be followed by twelve months minus one day to twenty-four months minus a day for possessing an instrument of crime is manifestly excessive due to its consecutive nature. The sentence imposed on each count fell within the standard range recommended by the Pennsylvania Commission on Sentencing Guidelines. The imposition of a consecutive sentence is solely within the discretion of the sentencing court. See e.g. Commonwealth v. Graham, 541 Pa. 173, 661 A.2d 1367 (Pa. 1995); Commonwealth v. Johnson, 873 A.2d 704 (Pa. Super. 2005). See also 42 Pa.C.S.A. § 9721. However, in some instances where sentences falling in the standard range are run consecutively a manifestly excessive aggregate sentence may result. See generally, Commonwealth v. Mastromarino, 2 A.2d 581, 2010 WL 2838008 (Pa.Super. 2010); Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595 (Pa.Super. 2010); Commonwealth v. Dodge, 957 A.2d 1198 (Pa.Super. 2008); Commonwealth v. Dodge, 859 A.2d 771 (Pa.Super. 2004) vacated and remanded on other grounds, 935 A.2d 1290 (Pa. 2007). An abuse of discretion is not shown merely by an error in judgment. An appellant “must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.” Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa.Super. 2003).). “When imposing a sentence, the sentencing court must consider the factors set out in 42 Pa.C.S. §9721(b), that is, the protection of the public, gravity of offense in relation to impact on victim and community, and rehabilitative needs of defendant, and it must impose an individualized sentence. The sentence should be based on the minimum confinement consistent with the gravity of the offense, the need for public protection, and the defendant’s needs for rehabilitation, and, of course, the court must consider the sentencing guidelines.” Commonwealth, v. Walls, 846 A.2d 152, 157-158 (Pa.Super. 2004) (citations omitted). Where the sentencing court imposes a sentence within the guideline range, it will be found “clearly unreasonable” by an appellate court only where it is “irrational” or “not guided by sound judgment.” Commonwealth v. Dodge, 957 A.2d 1198, 1200 (Pa.Super. 2008).

In constructing the sentence imposed the court considered the fact that defendant is nineteen years of age. Defendant’s familial, physical, educational, and employment histories and his mental health history, including a psychiatric evaluation conducted in anticipation of the sentencing hearing, were considered. In that evaluation a long period of inpatient treatment for psychiatric disorders was recommended. Defendant has an extensive record of juvenile felony and misdemeanor adjudications.Ahistory of drug andalcohol abusebeginning at the age of thirteen was reported in a pre-sentence drug and alcohol evaluation. Defendant’s stepfather, mother, and fiancé testified on his behalf at sentencing and the court considered their testimony. Additionally the court considered the seriousness of the offense, the comments of the defendant and defense counsel, a pre-sentence investigation report and the Pennsylvania Sentencing Guidelines. N.T. 7/13/09. pp.31-37. At sentencing the court recommended defendant undergo a psychiatric and psychological evaluation while in state custody and that he receive mental health treatment while incarcerated if treatment is appropriate.

The sentence imposed is individualized and is consistent with the protection of the public, the gravity of the offense in relation to its impact on the victim and the community, and the rehabilitative needs of the defendant, as the Sentencing Code requires. See 42 Pa.C.S.A. § 9721(b). In Commonwealth v. Dodge, 957 A.2d 1199 (Pa. Super. 2008), the appellant was convicted of thirty-seven counts of receiving stolen property, two counts of burglary, criminal trespass, possession of a small amount of marijuana, possession of drug paraphernalia, and unauthorized use of a motor vehicle. An aggregated sentence of 52 A to 111 years’incarceration, comprisedofthirty-seven consecutive, standard range, seventeen to thirty-six month sentences was imposed. The appellant was forty-two years old and none of the offenses, including burglary, involved violence against a person. The Superior Court found the sentence “irrational, not guided by sound judgment, and therefore clearly unreasonable." By imposing consecutive standard range sentences for thirty-seven counts of receiving stolen property, a 52 A year minimum, the sentencing court essentially guaranteed life imprisonment for the forty-two year old appellant. Imposition of a life sentence for a series of non-violent thefts involving for the most part stolen costume jewelry was manifestly unreasonable and excessive. 957 A.2d 1202. In contrast, in the case sub judice defendant pursued the victim as she walked to her place of employment on a public sidewalk and used an instrument of crime to threaten her, putting her in fear of serious harm. The victim testified that defendant put a heavy black gun into her back and demanded that she give him everything she had. He threatened her with serious bodily harm and violated her sense of personal safety on a public street at 7:30 in the morning. This was a brazen affront to the safety of Ms. Williams and to the larger community. Defendant was convicted of both robbery and possessing an instrument of crime. The offenses protect different interests and separate punishment for each crime is neither illegal nor unreasonable. “The commonwealth’s interest in the right of citizens to be free from the threat that an implement of crime will be used to accomplish a crime is separate from the commonwealth’s interest in protecting individuals from having their property rights jeopardized while being threatened with serious bodily injury.” Commonwealth v. Weigle 949 A.2d 899,908 (Pa.Super. 2008). Under the circumstances of this case defendant is not entitled to a “volume discount” sentence where he was convicted of two separate offenses, including a crime of violence against a person. Defendant will be approximately twenty-four years old when he becomes eligible for parole in five years. As a result of his extensive history of juvenile adjudications he has been under the supervision of the court in the past but chose to offend once again. The court has recommended psychiatric and psychological evaluations so that he may receive appropriate treatment for mental health issues to further his rehabilitation during incarceration. The sentence of incarceration imposed is reasonable and is supported by the record. It provides defendant with an opportunity for rehabilitation and bears no resemblance to the “irrational” sentence imposed in Dodge. Rather, it is the minimum confinement consistent with the gravity of the offense, the protection of the public and defendant’s need for rehabilitation.

In light of the foregoing it is respectfully submitted judgment of sentence should be affirmed.

       7T8 Pa.C.S.A. § 3701

      . 18Pa.C.S.A. §3921

      . 18 Pa.C.S.A. §907

      . Defendant did not request, nor would he have been entitled to a Kloiber charge, given the facts of this case. See Commonwealth v. Hudson, 955 A.2d 1031 (Pa.Super. 2008).


author: CARPENTER, J,

text:
    Bank of America, N.A. v. Jagruti Corp.

      C.P. of Montgomery County,
    no. 2009-31604.

      Alan Gershenson, for plaintiff.

      Steven R. Sosnov, for defendant.
    August 17, 2010
   FACTUAL AND PROCEDURAL HISTORY

CARPENTER, J,

— Defendant/ appellant, Jagruti Corporation (“Jagruti”), appeals from the June 7, 2010 order granting a motion for judgment on the pleadings (“motion”) in favor of plaintiff/appellee, Bank of America, N.A., successor in interest by merger to Fleet National Bank, successor in interest by merger to Progress Bank (“Bank of America”) and striking Jagruti’s counterclaim in this mortgage foreclosure action. An in rem judgment was entered in favor of Bank of America and against Jagruti for $325,118.35, plus interest from September 30, 2009 at the rate of $91.47 per diem.

On October 2, 2009, Bank of America initiated the underlying mortgage foreclosure complaint. In response, Jagruti filed only new matter and a counterclaim. Jagruti did not file an answer. Accordingly, all averments in the complaint were deemed admitted under Pa.R.C.P. 1029(b). Specifically, it is admitted that on April 2, 2002, Jagruti executed and delivered the Bank of America’s predecessor a promissory note (“note”) evidencing a loan in the principal amount of $320,000.00. Complaint ¶3. As security for the note, Jagruti executed and delivered to Bank of America a mortgage dated April 2, 2002, relating to a property located at 405 West Wood Street, Norristown, Pennsylvania. Id. at ¶4. The mortgage is recorded in the office of Montgomery County Recorder of Deeds on May 7, 2002, at mortgage book 8547, Page 1149. Id. The note and mortgage are in default by virtue of Jagruti’s failure to make payments thereunder when due. Id. at ¶7. As a result of the default on the note and another note, on April 1, 2009, Bank of America confessed judgment against Jagruti for $634,937.46, of which $307,007.29 was due on the note as of March 16,2009. Id. at ¶8. Interest continues to accrue after March 16,2009, at a rate of $91.47 per day pursuant to the note. Id. at ¶9.

In Jagruti’s new matter, Jagruti asserts that Bank of America is estopped from proceeding with this mortgage foreclosure because Bank of America has levied and attached the rents received on the subject property. New matter ¶ 13. Additionally, it is averred that B ank of America is estopped from proceeding because Jagruti has entered into an agreement of sale to sell one of the buildings that is the subject of this and another mortgage foreclosure complaint. Id. at ¶15.

Along with new matter, Jagruti asserted a counterclaim, which asserted that Bank of America had made another loan to Jagruti’s sister corporation, that Bank of America sold the loan to a third party and that because Bank of America did not automatically pay the assignee of the sister corporation’s loan from the sister corporation’s bank account with Bank of America, a default judgment was caused in the sister corporation’s loan, which caused the assignee to take judgment and execute on the sister corporation. Specifically, it is alleged that Jagruti and its sister corporation, Shiva Corporation (“Shiva”), had a banking arrangement with Bank of America. Counterclaim ¶17. Jagruti owned the real estate at issue in this matter, and Shiva operated convenience stores in Montgomery County. Id. Jagruti and Shiva were obligated to Bank of America by separate notes. Id. at ¶18. The payment of the notes was under an arrangement by which Bank of America would deduct the monthly payment amounts from the separate accounts of each borrower. Under this arrangement all note payments were appropriately made. Id. at ¶19. Sometime in 2006 or early 2007, Bank of America assigned its note from Shiva to a Texas company, Brown Bark, LLP (“Brown Bark”). Id. at ¶21. It was requested that Bank of America continue its practice of deducting the amount due on the note from the Shiva bank account at Bank of America. When Brown Bark did not receive any money form the Bank of America account it confessed judgment against Shiva and its two corporate officers, Atul Patel and Jagruti Patel. Id. at ¶¶20, 21. Based upon the confessed judgment, Brown Bark executed on the Shiva accounts at Bank of America, seizing a significant amount of money including an account which was dedicated to payment of Pennsylvania lottery funds. Id. at ¶22. The loss of a Pennsylvania lottery at Jagruti’s convenient stores would have been catastrophic. The Patel’s were forced to close all accounts at Bank of America, and reestablish new accounts at another bank. Id. at ¶23. The closing of Bank of America accounts and the execution of Brown Bark caused the convenient stores to lose their business relationship with firms supplying these stores with money orders. Id. at ¶24. Jagruti was thereafter unable to make further payments to Bank of America. Jagruti is being forced to sell its real estate to pay debts due as a result of the foregoing, and it faces the real possibility of bankruptcy if the sale referred to in new matter does not go through. Id. at ¶25. Bank of America breached its duties and undertakings with the Patels concerning the management of their finances in achieving the American Dream. Id. at ¶26.

Bank of America filed a response to Jagruti’s new matter and counterclaim on December 22, 2009. Thereafter, on December 23, 2009, Bank of America filed a motion for judgment on the pleadings, to which Jagruti filed a response. Oral argument was conducted on May 29, 2010. After carefully considering Bank of America’s Motion, Jagruti’s response, the briefs of both parties and the relevant case law, we issued the July 7,2010 order granting the motion for judgment on the pleadings, from which Jagruti has appealed.

ISSUES

I. Whether Jagruti’s Counterclaim was properly stricken, when it was not a part of or incident to the creation of the mortgage.

DISCUSSION

I. Jagruti’s Counterclaim was properly stricken, when it was not a part of or incident to the creation of the mortgage.

a. Standard of review

Pennsylvania Rule of Civil Procedure 1034 provides that “[a]fter the relevant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for judgment on the pleadings.” Pa.R.C.P. 1034(a). In ruling on a motion for judgment on the pleadings, the court should confine itself to the pleadings, such as the complaint, answer, reply to new matter and any documents or exhibits properly attached to them. A motion for judgment on the pleadings may only be granted where the pleadings demonstrate that no genuine issue of facts exists, and the moving party is entitled to judgment as a matter of law. Integrated Project Services v. HMS Interiors, Inc., 931 A.2d 724, 732 (Pa. Super. 2007)

On a motion for judgment on the pleadings, which is similar to a demurrer, the court accepts as true all well-pleaded facts of the nonmoving party, but only those facts specifically admitted by the nonmoving party may be considered against him. Mellon Bank v. National Union Ins. Company of Pittsburgh, 768 A.2d 865,868 (Pa. Super. 2001). Such a motion may only be granted in cases “where, on the facts averred, the law says with certainty that no recovery is possible.” Lindstrom v. City of Corry, 563 Pa. 579,583, 763 A.2d 394, 396 (2000). There should be no issue of material fact and the law should be so clear that a trial would be a fruitless exercise. Southcentral Employment Corp. v. Birmingham Fire Ins, Co. of Pennsylvania, 926 A.2d 977, 980 (Pa.Super. 2007).

b. Counterclaim was properly stricken because it was not a part of or incident to the creation of the mortgage

Counterclaims in mortgage foreclosure actions are governed by rule 1148 of the Pennsylvania Rules of Civil Procedure. Under rule 1148, a defendant may only plead counterclaims that “arise from the same transaction or occurrence or series of transactions or occurrences from which the plaintiff’s cause of action arose.” See. Pa.R.C.P. 1148, 42 Pa.C.S.A; see also, Corestates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1057 (Pa.Super. 1999). This rule has been interpreted as permitting to be pled only those counterclaims that are part of or incident to the creation of the mortgage relationship itself. Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa.Super. 1998); Chrysler First Business Credit Corp. v. Gourniak, 601 A.2d 338, 341 (Pa.Super. 1992). Furthermore, rule 1148 must be interpreted narrowly. Id. Counterclaims that are not part of or incident to the creation of the underlying mortgage, are improperly pled and may be stricken in a mortgage foreclosure action. Id.

In this case, accepting as true all of the facts as pled in the counterclaim, the counterclaim has nothing at all to do with the creation of the mortgage. Rather, it concerns alleged payment arrangements regarding the underlying mortgage and another mortgage, not at issue in this action, executed by Shiva. There are simply no allegations that this payment arrangement was contemplated, negotiated or agreed to at the time that the mortgage was entered into.

On appeal, Jagruti first asserts that the counterclaim set forth a proper cause of action for negligent performance of undertaking to render services under section 323 of the Restatement(Second) of Torts. Jagruti argues thatthe undertaking was relied upon and the harm caused resulted from the negligent conduct in the manner of performance of the undertaking or from the failure to exercise reasonable care to complete it or to protect the relying party when the undertaking was discontinued, citing Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984). (Concise statement, issue 1 p. 1). Even if Jagruti has set forth a cause of action for Negligent Performance of Undertaking to Render Services, that is not enough to successfully assert a counterclaim in a mortgage foreclosure action. This court examined the allegations which comprise Jagruti’s counterclaim and has determined that the alleged payment arrangement between Bank of America and Jagruti was not an arrangement that was part of or incident to the creation of the-underlying mortgage. Jagruti has neither pled that this alleged payment arrangement was contractually entered into at the time of the creation of the mortgage, nor has Jagruti alleged that any mortgage document contains an agreement to such payment arrangement. While Jagruti’s claim may be barred in this mortgage foreclosure action, it does not preclude Jagruti from bringing a separate action against Bank of America if it so chooses.

Jagruti also claims that the counterclaim arose from a series of transactions or occurrences from which the mortgage foreclosure action arose, citing Meritor Savings Bank v. Barone, 582 A.2d 21 (Pa.Super, 1990) in support of its contention. (Concise statement, issue 2 p. 2). However the Barone case is easily distinguishable and offers no support to Jagruti’s claim.

The Barone court held that a claim that a lender negligently failed to provide two mortgagors with the disability insurance that the lender agreed to provide arose from, or was incident to, the creation of the mortgage, and was therefore a proper subject for a counterclaim in a mortgage foreclosure action, where the lender’s disclosure form stated that the mortgagors were entitled to buy the insurance in connection with their loan. The Barone court noted that in connection with the mortgage the lender undertook an obligation to provide a defined form of disability insurance.

In our case, Jagruti has not alleged any facts from which it could be inferred that the alleged payment arrangement arose from the mortgage transaction itself. Unlike Barone, there is no allegation that Bank of America undertook this obligation in connection with the creation of the mortgage.

Jagruti finally contends that that this court should have given the counterclaim pleadings the widest and broadest interpretation necessary to sustain a cause of action when a motion for judgment on the pleadings is involved. Jagruti argues that such approach is consistent when a demurrer is filed by an opposing party in preliminary obj ections, and an opportunity to amend the cause of action to add appropriate additional facts necessary to establish the elements needed. Jagruti asserts that with a motion for summary judgment, the claimant’s affidavits and depositions would fill in any missing parts of the pleadings or any additional explanations needed to support the pleadings.

Initially, in determining Bank of America’s motion for judgment on the pleadings, this court applied the proper standard as set forth earlier in this opinion. Applying that standard, we accepted all of Jagruti’s allegations, as the nonmoving party, as true. Even if all of the allegations of the counterclaim were true, Jagruti is barred from asserting a cause of action which was did not arise out of, or incident to, the creation of the mortgage. There were no such allegations, nor were there any allegations from which this court could reach such an inference.

Jagruti’s claim also fails because it never requested that this court allow him leave to amend its counterclaim either in its written response to the motion for judgment on the pleadings or at oral argument. Additionally, a court is not required to sua sponte order or require a party to amend its pleading. Werner v. Zazyczny, 545 Pa. 570, 583-584, 681 A.2d 1331, 1338 (Pa. 1996). It is noteworthy that Jagruti neither specifies what new allegations it would have included if given the chance to amend, nor does Jagruti proffer what, if any, potential evidence it hoped to uncover during discovery that could have led to an inference that the alleged payment arrangement was part of, or incident to, the creation of the mortgage.

CONCLUSION

Based on the forgoing analysis, our June 7,2010 order, granting plaintiff’s motion for Judgment on the pleadings should be affirmed.

      . This appeal is docketed in the Superior Court at 1785 EDA 2010, and has been consolidated with 1784 EDA 2010, because both involve similar facts and legal issues. The action giving rise to the appeal at 1984 EDA 2010 was decided by the Honorable Kent H. Albright.

      . See, 1784 EDA 2010.


author: LASH, J,

text:
    Chryst v. Chryst

      C.P. of Berks County,
    no. 09-7246.

      Robert L. Sharpe Jr., for plaintiff.

      Joel H. Merow, for defendant.
    October 25, 2010
   DECISION AND ORDER

LASH, J,

— This court held a child custody trial on September 21,2010, October 1,2010, and October 8, 2010. Both parties seek primary custody of their minor child. The court enters the following Findings of Fact:

I. FINDINGS OF FACT

1. Plaintiff, Thomas E. Chryst (hereinafter “father”), is an adult individual who resides at 5911 Shepherd Hills Avenue, Lower Macungie Township, Lehigh County, Pennsylvania.

2. Defendant, Brenda Chryst (hereinafter “mother”), is an adult individual who resides at 202 Cinder Street, Birdsboro, Berks County, Pennsylvania, 19508 since July 2010. Previously, she resided at 207 Caramist Circle, Sinking Spring, Berks County, Pennsylvania.

3. The parties are the natural parents of a minor child, Fortress M. Arielle Chryst, bornMay 14,2008, (hereinafter “minor child”).

4. Father resides in the East Penn School District and mother resides in the Daniel Boone School District.

5. The parties were married on November 5, 2005, separated in December 2006, and were divorced on June 6, 2008.

6. Since her birth, the minor child has resided primary with mother.

7. Father filed the within action, seeking primary custody. A temporary order was entered on September 2, 2009, on motion of the Custody Master, providing, among other things, that the parties would share legal custody, with mother having primary physical custody and father having partial custody the first three (3) weekends each month from Friday at 3:00 p.m. until Sunday at 12:00 noon.

8. Father is employed at Air Products & Chemicals, Inc., as a senior tax manager. He works full time, but has a work schedule that is completely flexible and provides him with the ability to work from home at his discretion.

9. If father obtained primary physical custody, he would contract with Academy of Little Learners, a daycare center in existence for approximately twenty-five (25) years, located approximately 114 miles from his residence. The minor child would spend half a day at the daycare for educational and social developmental purposes.

10. Mother is employed full time through the Commonwealth of Pennsylvania as a secretary to the Honorable James Stapleton, W.C J. Generally, her work hours are Monday through Friday from approximately 8:30 a.m. until 4:30 p.m. Recently, she has changed her hours, now working Monday through Friday from 10:30 a.m. to 6:00 p.m., with these hours to continue for the foreseeable future. Mother also has some flexibility in her work schedule.

11. Mother has enrolled the minor child at a daycare through Kindercare in Wyomissing, Berks County, Pennsylvania.

12. Father currently resides alone in a ranch home in a suburban area, with his property abutting a golf course. The house is suitable for care of a young minor child.

13. Father was married previously to Colleen Mullins Chryst. They were separated inNovember 2003, becoming divorced in September 2005. Father has two (2) adult children from this marriage, Abby Chryst, bom October 13,1983, and Allison Chryst, bom August 29,1985.

14. Father and his former wife, Colleen Mullins Chryst, maintain a good relationship, even to the extent that his former wife provides father with home cooked meals approximately once a week.

15. Mother resides with the minor child, as well as her adult daughter from another relationship, Preness M. Graham, bom September 7, 1989.

16. Mother’s household is suitable for rearing the minor child.

17. The parties reside approximately 50 minutes apart.

18. Mother was convicted of summary offenses of harassment and disorderly conduct, stemming from an incident at father’s home, where she appeared at the home at night without warning, was knocking and kicking at the door and tossing patio furniture. Additionally, a Protection From Abuse Order was entered on father’s behalf against mother by the Lehigh County Court of common pleas.

19. An independent psychological evaluation was performed by Ivan L. Torres, Ed.D., of Alpha Counseling and Mediation Center, Inc. Dr. Torres interviewed the parties, mother’s adult child, Preness, father’s ex-wife, Ms. Mullins Chryst, his child, Allison Chryst, reviewed documentation, and conducted a home evaluation. He provided a written report dated March 30, 2010 and testified at trial.

20. Mother has been diagnosed with major depressive disorder and has been treating for same since 2009.

II. DISCUSSION

In making disposition, this court considered the testimony of the parties, father’s ex-wife, Colleen Mullins Chryst, father’s adult daughter, Allison Chryst, mother’s adult daughter, Preness M. Graham, father’s friend, Barbara Whitaker, the testimony and evaluation of Dr. Torres, and the Exhibits filed by the parties.

Father testified that it would be best for the minor child if she resided with him. He presents himself as a man of order and structure, who could provide a safe and stable living environment. He owns a nice home adjacent to a golf course, which is safe for a toddler, as it is primarily one (1) level, with only one (1) set of stairs. There is little traffic in the neighborhood. Father also has an excellent support system in his ex-wife and two (2) daughters from his first marriage. He has looked into the use of a daycare near his home, which will be appropriate for the minor child. He would use the daycare for a half day to help with educational and social development.

Father’s hours are flexible, and as he is able to work from home, he would be available to care for the minor child. Additionally, he plans to retire in approximately a year and a half and could then be a full time father, which he states is his true passion.

Father also states that he is aware of the importance of appropriate co-parenting and insists that he will do his part to make sure that the parties work together in harmony for the benefit of the minor child. He states that his outlook contrasts with mother’s, who has made it difficult for him in several areas. She has denied him visits and has refused to answer the phone when he calls to speak to the minor child. She has falsely accused him of improprieties, resulting in him being reported to Children & Youth Services on several occasions, with all of the investigations concluding with an “unfounded” report. Mother has also denied father the opportunity to take the minor child on outings, such as to the beach or to a family reunion. Her excuse is that the minor child is “too rambunctious.”

Mother has been known to be hot tempered and engage in abusive and threatening language toward father. She has assaulted father on several occasions. On one occasion, mother appeared at father’s house unannounced, banging on the door and turning over patio furniture. The police were called, and eventually, mother was charged with summary offenses and also had a Protection From Abuse Order entered against her.

Father also contends that mother has sent correspondence and e-mails to his ex-wife and other family members of his, disparaging him, making false allegations about his conduct, in an attempt to portray him in a bad light with his family. According to mother, the allegations are true and her purpose is to provide father with his “comeuppance.”

Father believes that mother continues to struggle with mental health issues, resulting from her being sexually abused as a teenager. He sees her now as “hypersensitive,” being extremely overprotective of the minor child, creating unnecessary problems for father. She has stated that the minor child should not be in the presence of any men, for men in general, and some women, will molest children.

Father also believes that mother, who herself has poor dietary habits, is inappropriate in her feeding habits of the minor child, causing the minor child to be grossly overweight. Father also contends that mother, who by her own admission sometimes gets home as late as 7:00 p.m. or 8:00 p.m., bathes and feeds the minor child at a late hour, causing the minor child to be drowsy during the day at the daycare. Father also asserts that mother engages in hypochondriac behavior regarding the minor child, taking her to the doctor on numerous occasions unnecessarily.

Mother believes that the temporary order currently issued, providing her with primary custody of the minor child, should remain in place. Mother has had primary custody of the minor child since her birth. She has attended to all of the minor child’s needs on a daily basis. She has an extremely close bond to the minor child. She properly supervises the minor child’s medical needs, as the minor child has asthma, requiring vigilance, particularly during certain times of the year. She interacts with the minor child recreationally as well, taking her on various outings. She makes a point of spending time with the minor child every night at bedtime, reading to her, and remaining with her in the minor child’s bedroom until the minor child falls asleep. Mother’s other daughter, Preness, also has an excellent relationship with the minor child and assists mother in the caretaking and recreational activities. The two have a close bond.

Mother contests father’s commitment to the minor child. For example, she notes that the minor child was hospitalized on several occasions and was not visited by father. On one (1) occasion, when mother and the minor child stayed over at father’s house, the minor child had difficulty breathing during the course of the night. Mother responded immediately and stayed with the minor child. Father, on the other hand, did nothing, and according to mother, became annoyed with mother. Father also smokes, sometimes even in the house, which exacerbates the minor child’s asthmatic condition. Mother believes that father’s purpose in filing the within custody action is to eliminate or reduce his child support obligation.

Father uses some of his scheduled partial custody time for his own purposes such as attending golf outings, with the minor child being watched by father’s daughter. Further, the minor child has been injured on more than one (1) occasion while at father’s home, causing mother to draw the inference that father is not properly supervising the minor child. Mother even questions whether father has the capacity to properly feed the minor child, as some of father’s meals are cooked for him by his ex-wife.

Mother has concerns about father’s behavior and attitudes toward her which could impact on the welfare of the minor child. Mother, who is African-American, alleges that father, who is Caucasian, has used racial slurs. Additionally, he has insulted her and treated her in a derogatory manner, criticizing her for certain things she has done such as her poor housekeeping.

Mother’s child, Preness, also complains about father. She believes that he treated her poorly for the entire time she and mother resided with father, for a period of about eight (8) months. She concurs with mother’s statement that father issued racial slurs. Preness claims that father acts hypocritically, portraying herself as virtuous and religious on the one hand, and viewing pornography on the other hand. She states that father watched her through a window while she was changing her clothes. Preness claims that father has inappropriately discussed with her certain sexual acts performed by mother.

Mother also has an issue with father’s friend, Barbara Whitaker. Ms. Whitaker was father’s paramour immediately previous to his relationship with mother, and the relationships actually overlapped. When father began dating mother, father would speak to mother about Ms. Whitaker and send e-mails he received from Ms. Whitaker, which he claims he sent at mother’s request. These conversations and e-mails cast Ms. Whitaker in a bad light, portraying her as a racist and as a person who engages in cultic activities such as witchcraft and speaking to the dead. Accordingly, mother does not want Ms. Whitaker around the minor child.

Mother concedes that she has responded to father’s indiscretions with her own improper, and sometimes volatile, behavior. She has made threats to him over the phone. She has described herself to father as a “mad black woman” and a “psycho bitch” and admits stating to others that she hopes that a calamity would befall father. She has assaulted him on at least three (3) occasions. On one (1) occasion, the two (2) wrestled and slapped each other. On another occasion, mother slapped father with a purse, and on the third occasion, mother jumped on father’s back. Finally, there was the incident at father’s house which resulted in summary offenses and a Protection From Abuse Order being lodged against mother. These incidents generally stemmed from mother’s perceived mistreatment of Preness by father or from his continuing contact with Barbara Whitaker.

Mother testified that she is being treated for major depressive disorder, continuing her treatments since 2009. She has been prescribed antidepressant medications, and admits that she sometimes has reduced her dosages, against her physician’s advice, for financial reasons. She also complains about insomnia and anxiety, which she testified stems from father’s treatment of her, as well as stress from the within court proceedings and the sudden death of her father.

In his written report, Dr. Torres recited the factual background provided to him from the parties and the others he interviewed. He then compiled a summary and recommendation. Regarding father, Dr. Torres states that he is intelligent and accomplished, being a good provider, and offering a great “degree of stability.” He appears committed to having a more active role in the life of the minor child. However, father is noted to have issues with control and obsession. Regarding mother, she is described as being bright, with strong character and independence. She cares deeply for the minor child and her other daughter. There is a strong bond between her and the minor child. However, Dr. Torres notes several risk factors, including her family background. Mother’s father was an alcoholic and her family suffered from domestic violence. Mother was also exposed to a statutory rape and an attempted gang rape, as well as chronic sexual abuse at the hands of her maternal grandfather beginning at age 16. These matters were never satisfactorily addressed. Dr. Torres also notes some resulting cognitive, affective, and social deficits, manifested in several ways, including her choice of partners and her “vigilance” in her protection of the minor child. Dr. Torres also noted that mother is not a good housekeeper.

Dr. Torres recommends that the parties share physical custody of the minor child on an equal basis. He also believes that mother and her daughter, Preness, who was also abused, should enter a treatment program for survivors of sexual abuse. He also maintains that father’s ex-wife, his daughter, Allison, and mother’s daughter, Preness, should be active in the minor child’s care.

At issue is primary physical custody. The paramount concern in a child custody proceeding is the best interests of the child. Costello v. Costello, 446 Pa.Super. 371, 375, 666 A.2d 1096, 1098 (1995). A determination of what is in the best interests of a child is made on a case-by-case basis and must be premised upon consideration of all factors which legitimately have an effect upon a child’s physical, intellectual, moral and spiritual well-being. Alfred v. Braxton, 442 Pa.Super. 381, 385, 659 A.2d 1040, 1042 (1995).

These parties have exhibited some positive characteristics. Both are intelligent, industrious, and for the most part, law abiding, mother’s brush with the law notwithstanding. Both have a good bond with the minor child, with mother’s being exceptional. Both care deeply for the minor child and want the best for her and are quite capable of managing the minor child’s daily needs. Both have adequate support systems. Both have appropriate household accommodations for rearing a minor child.

While some of the criticisms leveled by a party against the other are overblown, both have significant issues which, if not resolved, could impact on the welfare of the minor child. For one, there is ample evidence that father does try to control his surroundings and the people interacting with him. It appears this behavior was a catalyst in the failure of both of his marriages. Secondly, father appears quite willing to instigate controversy, in essence, “pressing mother’s buttons” to antagonize her. There is no reason for him to forward e-mails regarding Barbara Whitaker to mother. This has created difficulties, including mother’s outbursts, and serves no legitimate purpose. It is unlikely that mother will ever have any ability to trust Ms. Whitaker.

At times, father presented in a vague and sometimes disingenuous manner, attempting to portray himself in a favorable light. His testimony, particularly in cross-examination, compromised his credibility. For example, father, on direct examination, was quite capable of presenting precise testimony on occurrences in the past, even to the extent that he could give exact dates. However, he was unable to remember an incident of great significance that his adult daughter, Allison, testified occurred approximately nine (9) or ten (10) years ago when he attacked her with a belt or a hanger for obtaining a tattoo without his permission. At the time, she was 17 years old. This court simply does not believe that he has no recollection of this incident. Because of his insistence on filtering information to this court, as well as mother’s candor, this court gives consideration to some of mother’s allegations.

That being said, some of mother’s allegations are exaggerated, stemming from her paranoia regarding father and men in general. It is apparent that mother’s perspective is at times unhealthy, being overly fearful that something bad is going to happen to her daughter. Of course, parents need to protect children from predators. On the other hand, to err on the side of caution by assuming that any man in contact with the minor child is a potential deviant with evil design constricts mother’s capacity to parent and the minor child’s ability to grow. Her outbursts, which as stated, are a reaction to father’s machinations are also fueled in part by her paranoia. Additionally, mother is capable of being vindictive, as evidenced by her forwarding correspondence to father’s family, as well as other comments she made.

It is important for this minor child to have a strong relationship with both parents. Both have the potential to be good parents if they can overcome their psychological problems. Dr. Torres went so far as to recommend shared custody to provide equal access to both households. This court notes that the parties are sometimes able to get along, even post separation. For the parties to reinstate an amicable relationship, they will each have to recognize the other’s role as a parent, allow the other parent to live his or her life without interference from the other, and act in an edifying manner, building each other up, rather than attempting to tear each other down.

The minor child is thriving in mother’s care, enjoying an extremely close bond with mother. Mother has always been very attentive and doting. This minor child clearly benefits from having mother as the primary custodian. While mother needs to continue with her treatment for depression, and also work on her paranoia and emotional outbursts, the existence of these concerns do not disqualify her from being the primary custodial parent, particularly since father has also exhibited significant dysfunction, and, contrary to his testimony that he wants to work with mother, has instigated and exacerbated emotional tension that would otherwise not have surfaced.

This court believes, however, that it would be appropriate to increase father’s time to provide him additional access to the minor child, for reasons set forth. Of course, this may have to be adjusted when the minor child reaches school age, if the parties continue to reside nearly an hour apart.

Unfortunately, it appears that so long as Barbara Whitaker is allowed to interact with the minor child, mother will be unable to remain at peace. While mother’s concerns may be overblown, based on her paranoia, father initiated the problem by his willingness to play one woman off the other. It was he who placed in mother’s mind the thought that Ms. Whitaker is a racist and could be harmful to the minor child. As this court’s concern is solely the best interests of the minor child, and not the parties right to have whoever he or she wants in their house whenever he or she wants to have them, this court shall impose restrictions regarding Ms. Whitaker, when father has the minor child, Ms. Whitaker shall not be permitted to be present. We enter the following order:

ORDER

And now, this October 25,2010, after trial held, custody of the parties’ minor, Fortress M. Arielle Chryst, bom May 14, 2008, (hereinafter “minor child”), shall be as follows:

1. The parties shall share legal custody of the minor children.
2. Defendant, Brenda Chryst (hereinafter “mother”), shall have primary physical custody of the minor child.
3. Plaintiff, Thomas E. Chryst (hereinafter “father”), shall have physical custody of the minor child the first three (3) weekends of each month from Thursday at 3:00 p.m. until Sunday at 12:00 noon, and at such other times as the parties may agree.
4. Mother shall have mother’s day and father shall have father’s day each year from 9:00 a.m. to 7:00 p.m.
5. The parties shall alternate the following holidays from 9:00 a.m. to 7:00 p.m., with mother having the next holiday after the date of this order: Easter, Memorial Day, July 4th, Labor Day, and Thanksgiving.
6. The parties shall alternate Christmas in accordance with the previous arrangement of the parties. If they are unable to agree, the parties shall alternate the Christmas holiday such that in odd-numbered years, mother shall have custody from December 24 at 1:00 p.m. to December 25 at 1:00 p.m., with father having December 25 at 1:00 p.m. to December 26 at 1:00 p.m., with the parties to alternate in even-numbered years.
7. Each party shall be entitled to two (2) weeks of uninterrupted custody time with the minor child for purposes of taking a vacation. The vacationing party shall provide the non-vacationing party with at least sixty (60) days written notice of the dates and times for vacation. If the proposed vacation times conflict, mother’s time shall control in odd-numbered years and father’s time shall control in even-numbered years.
8. The holiday and vacation times shall take precedence over the regular custody schedule.
9. The parties shall engage in co-parenting counseling, with the counselor to be chosen by agreement of the parties, and in lieu thereof, by the court upon receiving notice. Father shall pay sixty-five percent (65%) of the cost of the counselor with mother to pay thirty-five percent (35%).
10. When father has custody of the minor child, he shall not permit Barbara Whitaker to be present or have access to the minor child, either directly or through telephone, correspondence, computer or otherwise.
11. The attached Appendix shall be made a part of the within order.
12. This order shall be considered a final order finally resolving the issues raised in father’s complaint for custody.

APPENDIX TO ORDER

Certain rules of conduct which generally apply to custody matters are set forth below and are binding on both parties, the breach of which could become the subject of contempt proceedings before this court, or could constitute grounds for modification of this order. If these general rules conflict with any specific provisions of the order, the order shall prevail.

1. In addition to the foregoing rights, both parties shall also have the following rights with respect to the child:

A. The right to reasonable telephone contact with the child when he or she is in the other parent’s custody.
B. The right to be fully informed concerning the progress of the child in school and the child’s medical status, including the right to obtain the necessary information directly from the child’s school or medical practitioner; and
C. The right to be informed in advance before any important decisions are made concerning the child and the opportunity to participate in those decisions.

2. In the event of any serious illness of the child at any time, any party then having custody of the child shall immediately communicate with the other party by telephone or by any other means, informing the other party as to the nature of such illness, and during such illness, each party shall have the right to visit the child as he or she desires consistent with the proper medical care of the child.

3. Neither party shall alienate nor permit to attempt to alienate the child from the other party. While in the presence of the child, neither parent shall make any remarks or do anything which is derogatory or uncomplimentary to the other and it shall be the duty of each parent to uphold the other parent as one the child should respect and love.

4. Both parties shall provide each other with their addresses and telephone numbers of their residences and anytime they take a trip with the child out of the jurisdiction of Berks County in excess of three (3) days.

5. The parties shall not conduct arguments or heated conversation when they are together in the presence of their child.

6. The parties shall, at all times, consider the child’s best interests, and act accordingly. It is in a child’s best interest to understand that he or she is trying to desperately cope with the fact of his or her parents’ separation, and needs help in loving both parents, rather than interference or censure.

7. Neither party shall question the child as to the personal lives of the other parent except insofar as necessary to insure the personal safety of the child. By this we mean that the child will not be used as a spy on the other party. It is harmful to a child to be put in the role of spy.

8. The parties should remember that they cannot teach their child proper moral conduct by indulging in improper conduct themselves. Children are quick to recognize hypocrisy, and the parent who maintains a double standard will lose the respect of his or her child.

9. Weekend and evening visitation shall be subject to:

A. Arrangements will be worked out beforehand between the parties without forcing the child to make choices and run the risk of parental displeasure. However, the child shall be consulted as to his or her schedule when appropriate.
B. Visitation rights shall be exercised at reasonable hours and under circumstances reasonably acceptable to the other party and to the need and desire of the minor child.
C. If a party finds himself or herself unable to keep an appointment, he or she should give immediate notice to the ther party, so as to avoid subjecting the child to unnecessary apprehension and failure of expectations.
D. The party having custody of the child should prepare him or her both physically and mentally for the transfer of custody to the other party and have him or her available at the time and place mutually agreed upon.
E. If either party or a child has plans which conflict with a scheduled visit and wish to change such visitation, the parties should make arrangements for an adjustment acceptable to the schedules of everyone involved. Predetermined schedules are not written in stone, and both parties should be flexible for the sake of the child.
F. If a party shows up for a visit under the influence of alcohol or drugs, the visit may be considered forfeited on those grounds alone.

10. If either party feels the other party has violated this order, they may petition the court as set forth in Pa.R.C.P. 1915.12.