author: LACHMAN, J.,

text:
    Hart v. Kramer.

      Jessica Zarzaly, for plaintiff.

      Nancy Eshelman, for defendant.
    August 16, 2012
   LACHMAN, J.,

This opinion addresses the denial of plaintiff John Hart’s petition to strike and/or open judgment of non pros at control no. 11125288, and the dismissal of his motion to place case in deferred status at control no. 11125115.

Factual Background

Plaintiff filed a legal malpractice action against defendants Scott Kramer and The law offices of Scott L. Kramer, P.C., arising out of the defendants’ representation of plaintiff in various criminal matters. A certificate of merit must be filed in such professional negligence actions. Pa.R.C.P. 1042.3(a); Pa.R.C.P. 1042.1(c)(2) (“’licensed professional’ means ... an attorney at law”); Sabella v. Milides, 2010 Pa. Super. 48, 992 A.2d 180, 186 (“a licensed professional includes an ‘attorney at law’”). On September 28, 2011, Judge William Manfredi entered an order requiring plaintiff to file certificates of merit as to each defendant within sixty days of the date of that order, i.e., November 27, 2011. He further ordered that “no further extensions shall be granted except in the event of exceptional circumstances.”

On October 20, 2011, plaintiff and the defendants entered into a stipulation extending plaintiff’s time for filing the certificates of merit to December 19, 2011. If plaintiff failed to file the certificates of merit by that date, the stipulation expressly permitted the defendants to enter a judgment of non pros on December 20, 2011 or thereafter. The stipulation was ineffective in extending the time in which Judge Manfredi had ordered the certificates of merit to be filed because it was not submitted to the court for approval. Pa.R.C.P. 248 applies only to stipulations to extend the time set forth in the rules of civil procedure. Rule 248 does not authorize the parties by stipulation to modify the time set forth in a court order.

OnNovember 16,2011, the Haverford Township Police Department executed a search warrant of the plaintiff’s residence. Plaintiff alleges that the police seized and took into their custody “various documents relating to this matter.” Petition ¶ 7. That same day plaintiff was arrested and incarcerated. That was 11 days before the expiration of the 60-day extension granted by Judge Manfredi to file the certificates of merit. Plaintiff’s petition alleges that “prior to plaintiff being in custody, plaintiff had conversations with several experts and had supplied them with some documents.” “As a result of plaintiff being taken into custody, plaintiff was not able to complete the retention of an expert and file a certificate of merit in a timely manner as ordered by this court.” Petition ¶¶ 12, 13.

On December 12, 2011, at control no. 11125115, plaintiff filed a motion to place this matter in deferred status because he was incarcerated. Contrary to plaintiff’s assertions, his motion did not “toll the time period within which a certificate of merit must be filed.” Pa.R.C.P. 1042.3(d). Rule 1042.3(d) requires that the motion “to extend the time for filing a certificate of merit must be filed on or before the filing date that the plaintiff seeks to extend.” The motion was filed 15 days after the expiration of Judge Manfredi’s deadline for filing the certificates of merit.

Plaintiff never filed the certificates of merit. Defendants filed a praecipe for the entry of a judgment of non pros on December 20,2011, and the judgment was entered on that date.

Plaintiff filed the present petition to strike and/or open judgment of non pros on December 30,2011. The petition was timely filed.

The Petition to Strike Non Pros
A petition to strike a judgment is a common law proceeding which operates as a demurrer to the record. A petition to strike a judgment may be granted only for a fatal defect or irregularity appearing on the face of the record.... An order of the court striking a judgment annuls the original judgment and the parties are left as if no judgment had been entered.
When deciding if there are fatal defects on the face of the record for the purposes of a petition to strike a judgment, a court may only look at what was in the record when the judgment was entered.

Cintas Corp. v. Lee’s Cleaning Services Inc., 549 Pa. 84, 89-90, 700 A.2d 915, 917 (1997) (case citations omitted).

Plaintiff’s petition to strike the non pros is without merit. Plaintiff did not identify a specific defect on the face of the record in support of his petition, and the record does not reveal any defect. Instead, plaintiff argues that the non pros should be stricken because his complaint “contains counts for breach of contract which are not subject to any requirement that a certificate of merit be filed.” Petition ¶ 18.

Professional liability claims arising out of an attorney’s representation of a client in criminal matters can sound in trespass and/or assumpsit. Bailey v. Tucker, 533 Pa. 237, 245, 621 A.2d 108, 112 (1993). A criminal legal malpractice assumpsit claim is based on breach of the attorney-client agreement and the failure “to provide that client with professional services consistent with those expected of the profession at large.” Id., at 251-252, 621 A.2d at 115.

Counts II, VI, IX, and XII in plaintiff’s complaint are entitled “breach of contract.” Each count merely incorporates by reference the negligence claims in the preceding counts and states that the “defendants breached the contract with plaintiff.” ¶¶ 32, 74, 106, 134. The negligence claims incorporated in all of the breach of contract counts of the complaint allege that the defendants deviated from an acceptable professional standard of care. The gist of each count — negligence and breach of contract — sounds in tort, not contract. “It is the substance of the complaint rather than its form which controls whether the claim against a professionally licensed defendant sounds in...professional malpractice.” Sabella v. Milides, 2010 Pa. Super. 48, 992 A.2d 180, 187. Consequently, a certificate of merit was required for counts II, VI, IX, and XII. Pa.R.C.P. 1042.3(a).

Plaintiff’s motion to strike was denied because plaintiff did not prove there was “a fatal defect or irregularity appearing on the face of the record.” Cintas, 549 Pa. at 89, 700 A.2d at 917.

The Petition to Open Non Pros

Plaintiff’s petition to open the non pros is without merit. “A petition to open a judgment is an appeal to the equitable powers of the court. It is committed to the sound discretion of the hearing court and will not be disturbed absent a manifest abuse of that discretion.” Cintas, 549 Pa. at 93, 700 A.2d at 918. This issue is governed by Pa.R.C.P. 3051 which requires that a petition to open a judgment of non pros must set forth facts showing that

(1) the petition is timely filed,
(2) there is a reasonable explanation or legitimate excuse for the inactivity or delay, and
(3) there is a meritorious cause of action.

Pa.R.C.P. 3051(b). Accord, Cintas, 549 Pa. at 93, 700 A.2d at 918.

Although the petition was timely filed, it does not explain in sufficient detail why plaintiff was unable to file the certificates of merit by November 27, 2011. Furthermore, the docket reflects that plaintiff has not filed the certificates of merit by the date of this opinion, more than six months after the November 27, 2011, deadline.

Lastly, plaintiff’s complaint does not set forth a meritorious cause of action. A client suing his attorney for defective representation in a criminal proceeding must allege and prove the following elements:

(1) The employment of the attorney;
(2) Reckless or wanton disregard of the defendant’s interest on the part of the attorney;
(3) The attorney’s culpable conduct was the proximate cause of an injury suffered by the defendant/plaintiff, i.e., “but for” the attorney’s conduct, the defendant/ plaintiff would have obtained an acquittal or a complete dismissal of the charges.
(4) As a result of the injury, the criminal defendant/ plaintiff suffered damages.
(5) Moreover, a plaintiff will not prevail in an action in criminal malpractice unless and until he has pursued post-trial remedies and obtained relief which was dependent upon attorney error..,,

Bailey v. Tucker, 533 Pa. 237, 250-251 621 A.2d 108, 115 (1993). The plaintiff must also allege and prove “that he did not commit any unlawful acts with which he was charged as well as any lesser offenses included therein.” Id., at 251 n.12, 621 A.2d at 115 n.12.

Plaintiff’s complaint does not allege that he “has pursued post-trial remedies and obtained relief which was dependent upon attorney error.” Plaintiff’s complaint also fails to allege that he “did not commit any unlawful acts with which he was charged as well as any lesser offenses included therein.” The complaint is legally deficient and does not state a meritorious caused of action.

Motion to Place This Case in Deferred Status

The court denied the plaintiff’s motion to place this case in deferred status as moot because this case is over. This case was terminated by the December 20, 2011, praecipe to enter judgment of non pros in favor of defendants Scott Kramer and The Law Offices of Scott L. Kramer, PC. The court has now denied plaintiffs motion to strike and/or open the judgment of non pros. There is no case remaining to defer.

OPINION PER Pa.R.A.P. 1925

John Hart is appealing from the denial of his petition to strike and/or open judgment of non pros at control no. 11125288, and the dismissal of his motion to place case in deferred status at control no. 11125115. Mr. Hart filed his appeal on July 6,2012, and included with it an unsolicited statement of matters complained of on appeal. None of the issues raised in Mr. Hart’s statement have merit for the reasons set forth in this court’s June 8, 2012, opinion, a copy of which is attached hereto and incorporated by reference.

      . The parties are free to enter into stipulations governing their relationship, as long as those stipulations do not seek to bind the court, or alter the terms of court orders, filing deadlines, and trial dates. The parties are free to bind themselves by stipulation on all matters that do not affect the jurisdiction and prerogatives of the court, and are not in contravention of peremptory statutory requirements. Wayda v. Wayda, 395 Pa.Super. 94, 108-109, 576 A.2d 1060, 1067 (1990); Smith v. I.W Levin and Co., Inc., 800 A.2d 374, 377 (Pa. Cmwith. 2002).

      . Plaintiff filed a motion to determine necessity to file a certificate of merit on September 2, 2011, at control no. 11095011. Plaintiff’s motion did not allege that there were counts of his complaint that did not require certificates of merit. Judge Manfredi’s September 28,2011, order regarding that motion stated: “Plaintiff shall file a certificate of merit as to each defendant within sixty (60) days of the date of this order.”

      . The non pros in the present case was entered pursuant to rule 1042.7. The special provisions relaxing the requirements for opening of a judgment of non pros set forth in Pa.R.C.P. 237.3 apply only to relief from a judgment of non pros entered pursuant to rule 1037(a). See Note following rule 1042.7(4), and Note following rule 3051(b).


source: Caselaw Access Project

author: FORADORA, J.,

license: Public Domain

text:
    Commonwealth v. Shaffer.

      Tabia Cole, for plaintiff.

      Ronald L. Collins, for defendant.
    August 16, 2012
   FORADORA, J.,

Introduction

The defendant, Mark Alan Shaffer (“Shaffer”), was charged with felony and misdemeanor drug offenses stemming from events that occurred on July 15, 2011. He was charged after the police found drugs and drug paraphernalia while searching his vehicle. Shaffer later filed an omnibus pre-trial motion for relief, alleging that the search warrant authorizing the search was invalid because the affiant failed to specify how the confidential informant was reliable or the basis for his knowledge, and also because it contained materially false and incorrect information, he argued, the affidavit did not establish probable cause. By way of relief, he asked the court to suppress all evidence obtained as a result of the search warrant.

At a hearing held June 15, 2012, counsel collectively proffered copies of the search warrant, the deposition testimony of Trooper John Eisman (“Eisman”) of the Pennsylvania State Police, and a document confirming that at least one fact he alleged in the affidavit was incorrect. The court issued a briefing schedule, and with both briefs now filed, the question is ripe for decision.

Findings of Fact

On July 15,2011, Trooper Eisman applied to magisterial district Judge David B. Inzana for a search warrant to search a maroon 2000 Dodge Durango Sport for evidence of drugs and drug paraphernalia. In his affidavit of probable cause, he swore to the following factual averments:

1. On July 15, 2011 at approx.. 1500 hrs. I received information from Trooper Jared Thomas advising the following: A Mark Alan Shaffer is currently going to the Pittsburgh area to obtain several bricks of heroin and bringing them back to the Reynoldsville area. Tpr. Thomas further advised that Shaffer is operating a maroon Dodge Durango that belongs to Christina Ritzie. Tpr. Thomas advised that he has been given this information from a reliable confidential informant (C.I.). Tpr. Thomas advised that Shaffer would be in the vehicle alone and would be back in the area between 1800 to 1830 hours. Tpr. Thomas further advised that Shaffer would be taking SR 28 to Sr [sic] 322 into Reynoldsville.
2. On July 15, 2011 at approx.. 1530 hrs. I advised the shift supervisor Cpl. William Tangren of the information obtained from Tpr. Thomas. Cpl. Tangren, Tpr. Watt, Tpr. Breakey and I established a plan to cover the roadways into the reynoldsville [sic] area to try and intercept the Dodge Durango.
3. On July 15, 2011 at approximately 1750 hours Tpr. Breakey was operating radar along SR 322 west of the Reynoldsville Borough area. A maroon Dodge Durango matching the description came through his radar zone. Tpr. Breakey advised the other units that the vehicle had been speeding and was following it into the Reynoldsville Borough. Tpr. Breakey conducted a traffic stop at the intersection of SR 322 and SR 310 at the Uni-Mart convenience store. Tpr. Breakey, Tpr. watt [sic], Cpl. Tangren, and I were onscene [sic]. Tpr. Breakey issued Mark Shaffer a warning for the speeding infraction. I then spoke with Shaffer and advised him that I wanted him to consent to a search of his vehicle. He advised that he would not consent to a search.
4. On July 15, 2011 at 1940 hrs. I ran a criminal history check on Mark Shaffer and found him to have been arrested in the state of Indiana for drug possession, specifically marijuana. Reference SID: INO1029847.
5. During the encounter your affiant observed in plain view inside the vehicle what appeared to be a “stamp bag” with a white residue, which this officer suspects to be heroin.
6. This officer also observed that during the course of the encounter Mr. Shaffer appeared excessively aggitated [sic] and nervous.

After Judge Inzana issued the search warrant, the police searched the vehicle and seized from under the driver’s seat 250 white wax packets of heroin stamped with the words “derby days.” Depo. of John Eisman, 12/19/2011, pp. 25-26. They also seized cell phones, money grams, and other items of drug paraphernalia. Id. at 26-27.

Prior to applying for the search warrant, Eisman had indeed spoken with Trooper Jared Thomas (“Thomas”), who advised him that a Cl had just informed him that Shaffer had left to go to Pittsburgh to retrieve a large amount of heroin; that he was driving a maroon Dodge Durango owned by his wife, Christina, and that he would be returning to Reynoldsville around 6:00 p.m. to 6:30 p.m. via SR 28 North and SR 322. Id. at 6, 9-11.

At the time he talked to Thomas, Eisman did not know the identity of the Cl, the basis for his information, or whether Thomas had used him in prior investigations. Id. at 8, 45. He had not obtained that information by the time he swore out his affidavit of probable cause, either. He was familiar with Mark Shaffer and his wife, however, whose names had come up during other drug investigations. Id. at 5-8.

Acting on the CFs report, Trooper Richard Breakey (“Breakey”) took position off of SR 322 west into Reynoldsville, and at 5:50 p.m., he saw a maroon Dodge Durango pass by and followed it to the Uni-Mart parking lot in Reynoldsville. Id. at 11. Consistent with what Eisman had learned from Thomas, the vehicle was registered to Christina Ritzie and being driven by Shaffer, who was the sole occupant. Id. at 11-12.

When Eisman arrived at Uni-Mart, he performed a cursory visual inspection of the Durango and observed a two-inch long, rectangular piece of material that he believed was an open stamp bag of heroin. Id. at 12-13,35-50. When he went to retrieve it after obtaining the search warrant, however, he discovered that it was actually a blue cloth with some discoloration at the bottom, not an open stamp bag containing residue. Id. at 47-51. As the troopers continued their search, however, they quickly located the 250 stamp bags of heroin.

As it turned out, Eisman was also incorrect about Shaffer having an earlier drug conviction out of Indiana. The report he received, while identifying “Mark Shaffer” as the subject individual, pertained to a different Mark Shaffer. Additionally, although Eisman indicated in his affidavit that Shaffer appeared to be excessively agitated and nervous while speaking with him, he testified at his later deposition that the defendant was not overly nervous. Id. at 14.

Discussion

Two years ago, our Supreme Court reiterated the well-established standard applicable to search warrants. It said,

“Pursuant to the ‘totality of the circumstances’ test set forth by the United States Supreme Court in Gates, the task of an issuing authority is simply to make a practical, common-sense decision whether, given all of the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place .... It is the duty of a court reviewing an issuing authority’s probable cause determination to ensure that the magistrate had a substantial basis for concluding that probable cause existed. In so doing, the reviewing court must accord deference to the issuing authority’s probable cause determination, and must view the information offered to establish probable cause in a common-sense, nontechnical manner.”

Commonwealth v. Jones, 605 Pa. 188, 200, 988 A.2d 649, 655 (2010) (emphasis added) (quoting Commonwealth v. Torres, 564 Pa. 86, 97-98, 764 A.2d 532, 537-38 (Pa. 2001)). An examination of the four comers of the affidavit will reveal whether the issuing authority had a substantial basis upon which to find probable cause. Commonwealth v. Hernandez, 892 A.2d 11, 20 (Pa. Super. 2006), rev’d. on other grounds, 935 A.2d 649 (104 Conn. App. 710, 717) (citing Commonwealth v. Edmunds, 526 Pa. 374, 382, 586 A.2d 887, 891 n.3 (1991)).

That common sense, non-technical standard applies to information received from confidential informants, whose reliability and basis of knowledge may suffice to establish probable cause under one of three circumstances: 1.) where the police independently corroborate his tip; 2.) where he has provided accurate information in the past; and 3.) where he actually participated in the criminal activity. Commonwealth v. Clark, 611 Pa. 601, 607 28 A.3d 1284, 1288 (2011). In the first instance, “The corroboration by police of significant details disclosed by the informant in the affidavit of probable cause meets the [constitutional] threshold.” Id. However it happens, though, probable cause must always be evaluated based on a totality of the circumstances. Id.

Similar to this case, the affiant in Clark swore to receiving information from a “reliable confidential informant” without further articulating what made the informant reliable or how he had obtained the information he had given to the police. Id. The police then took steps to confirm the information they had received and thereafter obtained a search warrant for the defendant’s home. Id. at 1285-86. The trial court later suppressed the evidence on the basis that the affiant had not recited how the informant’s reliability had been established or how he had obtained his knowledge of the defendant’s activities. Id. at 1286. The Superior Court affirmed that ruling in an unpublished memorandum opinion, and our Supreme Court reversed.

Clark altered the landscape with respect to the quantum of information necessary to establish an informant’s reliability and basis of knowledge. Specifically, the court rejected the proposition that an affidavit of probable cause must always contain a specific incantation that the informant had previously provided information leading to an arrest. Id. At 1289-92. “[I]t is clear that under the totality-of-the-circumstances approach,” said the court, “there is no talismanic recitation of a particular phrase with respect to ‘reliability’ or ‘basis of knowledge’ that will either be required or will suffice to conclusively establish, or conclusively disaffirm, the existence of probable cause.” Id. At 1292.

In Clark, the Supreme Court faulted the lower courts for overemphasizing what the issuing magistrate knew or did not know about the confidential informant. Id. at 1290-91. This court will not make the same mistake. In Clark, the court observed that the totality of the circumstances, including the independent police investigation verifying the informant’s statements, sufficiently established probable cause, the absence of a “reliability statement” notwithstanding. Id. at 1292. The same is true in this case.

When Judge Inzana authorized the warrant to search Shaffer’s vehicle, he knew more than just what a “reliable” confidential informant had told the police. He also knew that the police had independently investigated and verified many significant details, including the color, make, and model of the vehicle he would be driving; the name of the person to whom the vehicle was registered; the route he would be travelling back to Reynoldsville; and the approximate time he would be arriving. He thus knew that the police had confirmed nearly all of the information the informant had provided. It was thus reasonable for him to conclude that the confidential informant was indeed reliable overall and that probable cause existed to believe that his last significant piece of information — that Shaffer would be carrying heroin in the Durango — would be confirmed by a vehicle search.

Because the information appearing in the first substantive paragraph of Eisman’s affidavit did indeed establish probable cause for Judge Inzana to issue the search warrant, the court need not consider the legal ramifications of the inaccuracies reflected in paragraphs two, three, and four. Pursuant to Clark, the fact that the police were able to substantiate the confidential informant’s tip to a significant degree was sufficient, in and of itself, to create probable cause under the circumstances. Nothing more was needed. The succeeding paragraphs thus could have been omitted entirely without affecting the validity of Judge Inzana’s determination.

What the defendant is left with, then, is a search warrant that was supported by probable cause to believe that the police would discover heroin in the Dodge Durango he was driving on the date in question. That being the case, the warrant was valid and there exists no basis upon which to grant Shaffer’s request for suppression.

ORDER ON DEFENDANT’S OMNIBUS PRETRIAL MOTION

And now, August 16, 2012, for the reasons articulated in the foregoing opinion, it is hereby ordered and decreed that the defendant’s omnibus pre-trial motion is denied.


author: MOTTO, J.,

text:
    Lohr v. Myers.

      Phillip L. Clark Jr., for plaintiff.

      William M. Panella, for defendant.
    September 10, 2012
   MOTTO, J.,

Before the court for disposition is the petition of Jason Alexander Lohr (hereinafter “father”) for modification of the current custody order to transfer primary physical custody of the child, Alexander Jason Lohr, (hereinafter “A.J.L.”), bom October 6, 2005, from Trinitie Myers, now Roñica, (hereinafter “mother”) who presently enjoys primary physical custody.

Mother and father met in 2005. A.J.L. was bom on May 1, 2006. At the time of birth, mother and father had separated but Mother was living in an apartment in a residential dwelling owned by father’s parents. Mother moved out of that apartment when A.J.L. was approximately five months old and went to live with her father. From birth until the commencement of this action, A.J.L. resided primarily with mother with father having sporadic contact with him.

On January 6, 2007, father filed his initial complaint for custody and a petition for special relief seeking to enjoin mother from relocating with the child from Lawrence County to the state of North Carolina. The result of the initial proceedings was an order of court entered on February 14,2007, by agreement of the parties, awarding primary physical custody of A.J.L. to mother, with mother and father to have shared legal custody, and with mother being permitted to relocate with the child to the state of North Carolina. The order further provided for father to have twenty days of partial custody in each two-month period. The parties were to share the providing of transportation for the exercise of partial custody. Subsequently, the parties agreed between themselves to share the time that each would have the child so that each party would have the child for thirty consecutive days and alternate eveiy thirty-day period.

The sharing of custody of the child on the thirty-day rotation continued until July of 2011 when mother enrolled A.J.L. in school in the city of her residence, Havelock, North Carolina. In order to allow for the child to have more frequent contact with father, mother opted to enroll the child in an optional school program whereby the child would attend school all year round, with the child to be in school for nine weeks, then on vacation a period of three weeks, with nine week sessions continuing throughout the year, each nine-week session followed by a vacation of three weeks, except in the summer, when there would be a break of five weeks before the commencement of the next school year. With this school arrangement, father has received the child during the three weeks that the child is out of school and in the summer of 2012, had received the child for four weeks of the five-week summer vacation period.

In seeking primary physical custody, father notes that he and virtually all of his family has attended the Laurel school district in Lawrence County where A.J.L. would be enrolled if he obtained primary physical custody and the majority of the child’s family is located in Lawrence County. Father further notes that since he is on social security disability he has ample time to spend with the child.

Father resides in a residential structure owned by his parents that contains three apartments. He lives in the upstairs apartment with his ex-wife, Tracy Lohr, and daughter Madison, age 15 and step-daughter Lilly, age 7. Father has lived in this structure since he was five years old. Father’s mother and father and father’s daughter, Hope, age 20, live in one of the downstairs apartments together with Hope’s boyfriend and their one-year-old child. In another downstairs apartment, father’s other ex-wife, Erin Cartwright, resides, that ex-wife being the mother of Hope and Abby Lohr, both children of father and Erin Cartwright. Father had attended the Laurel school district, did not graduate, but obtained a G.E.D. Father has been on social security disability since 2008 because of having A.D.H.D. and neck injury. Father is able to make extra money on occasion as a discjockey.

Most of the family of both father and mother reside in Lawrence County. Three of A. J.L.’s grandparents reside in Lawrence County, a great-grandparent and various aunts and uncles as well as the half-siblings and half-step-sister mentioned above.

Father’s ex-wife, Tracy, with whom he resides, is a registered nurse and enjoys a good relationship with A. J.L. as well as a good relationship with all of father’s family. Tracy generally works the night shift, but does whatever is necessary to assist with the care of A. J.L. when he is in the physical custody of father.

Father maintains contact with A J.L. through the use of Skype and telephone calls when A.J.L. is in the custody of mother. Father has received treatment for psychiatric issues, which is treated with medication and sees a counselor once a week.

Father’s home is adequate for the care of A.J.L. the apartments are structured so that A.J.L. can move freely between the various apartments and will spend a substantial amount of time with his paternal grandparents when he is in the physical custody of father. Although photographs have been presented showing used parts stored in the back of the residence that are used in the appliance repair business of the paternal grandfather, there is nothing to indicate that these parts pose a danger to the children, who otherwise have a substantial area in which to play. Father’s residential facility for the care of A.J.L. is adequate.

Mother resides in Havelock, North Carolina with her husband, Sean Ronka, and their children. The children bom to mother and Mr. Ronka, A.J.L.’S half-siblings, are aged three and an infant. Mother and father were never married. For the first four months of the pregnancy, mother and father resided together. Father then asked mother to move out because he did not want to get married. Later mother moved back into the father’s residence and father moved out. After the birth of A. J.L. mother remained at the residence and did not see father again until A. J.L. was about two months old. After that time, father would see A.J.L. on an irregular basis until mother moved to North Carolina in 2007. As noted, mother moved to North Carolina with the consent of father and pursuant to a consent order of court that allowed for father to have physical custody twenty days in a sixty-day period, which order was later modified by oral agreement to provide for the parties to share time with A J.L. on a thirty-day rotation, which schedule continued until A.J.L. started school.

Mother intentionally enrolled A.J.L. in a school having the year-round schedule in order to maximize the amount of physical custody father could have with A.J.L. The optional schedule which mother obtained for A.J.L. is nine weeks of school followed by three weeks of vacation, continuing on that rotation starting in July and ending in June, with a summer vacation period of five or six weeks. Since that has started, A.J.L. has spent his vacation period when not in school with father. Most of the five-week summer vacation period was spent by A.J.L. with father. This year-round schedule can be continued through the completion of high school.

A.J.L. gets along well with his half-siblings and spends much of his time playing with his three-year-old sister, Anni, and interacts with his half-brother, Wesley, who as an infant is in the crawling stage.

A.J.L. has a pediatrician and a dentist in North Carolina and is covered by health insurance issued through mother’s husband, Sean Ronka, who is presently in the service. A.J.L. will call Mr. Ronka “Daddy Sean”. Mother is careful to make A.J.L. understand that Mr. Ronka is not his father.

Although most of mother’s family lives in Lawrence County, mother does have a brother-in-law, sister-in-law, and a niece and nephew residing nearby. Her niece and nephew are respectively nine and 13 years of age and do visit, at least every other weekend. The maternal grandmother lives in Wilmington, North Carolina, about two hours from where mother resides. Mother visits frequently with the maternal grandmother. AJ.L. will stay with the maternal grandmother and her husband on a boat in a marina. Mother’s brother also lives in North Carolina, approximately two hours away from where mother resides. That brother has three children; ages nine, three and approximately two years old. A.J.L. has many friends at school in North Carolina and has a friend in the neighborhood with whom he will play on occasion. As an outside activity, A J.L. is interested in Taekwondo. A J.L. is doing well in school. In North Carolina, AJ.L. attends church with mother at the Cornerstone Assembly of God. In Lawrence County, A.J.L. attends church with father at the Victory Church.

Father has complained of not being consulted relative to important matters in the life of AJ.L., as required by the shared legal custody arrangements of the outstanding court order. AJ.L. was made to see a counselor by mother, but father was not timely advised of that fact. Father has had some difficulty receiving school papers related to the child’s school work and progress.

Brian E. Dick, a psychologist, performed a full custody evaluation and concluded that the present status quo, with mother having primary physical custody and father having partial physical custody on the vacation time period when school is not in session, given the year-round school schedule, should be maintained. Mr. Dick concludes that to change custody to father would deprive mother of spending a sufficient amount of time with A.J.L., while the current arrangement whereby in North Carolina A.J.L. is able to attend school all year round, enables both parents to have regular and frequent contact with the child. Although father has suggested cyber school, Mr. Dick concludes that is not a viable option, as cyber school does not provide the same opportunities to have interaction with co-students in the same manner that attending a traditional school setting provides.

The paramount concern in a child custody case is the best interests of the child, based on consideration of all factors that legitimately affect the child’s physical, intellectual, moral and spiritual well-being; this determination is to be made on a case-by-case basis. Dranko v. Dranko, 824 A.2d 1215 (Pa.Super. 2003); Arnold v. Arnold, 847 A.2d 674, 677 (Pa.Super. 2004). Pursuant to 23 Pa.C.S.A. §5328(a), in ordering any form of custody, a court shall determine the best interests of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the factors hereinafter discussed, and are thus required to be considered by statute.

1. Which party is more likely to encourage and permit frequent and continuing contact between the child and the other party?

The court finds that both parties allow and encourage contact between the other party and the minor child. Father communicates with the child by utilization of Skype and telephone. Mother does nothing to prevent the contact between father and the child. Mother has raised no issues regarding her ability to contact the child while the child is in the physical custody of father. Each party views the other as a good parent, and each party recognizes the significant impact the other has in AJ.L.’s life. In fact, mother specifically enrolled the child in an all-year school program which allows for a three-week break after each nine-week session in order to allow more frequent contact between the child and father given the distance between father who resides in Lawrence County and mother who resides in North Carolina.

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

No evidence of any abuse by either parent toward the child has been presented, nor is there any evidence of any abuse committed by any party or any member of the parties ’ households towards any other person. The court finds that there is no continued risk of harm to the child or any party and that both parties have the ability to provide adequate physical safeguards and supervision of the child.

Evidence was presented that mother’s current husband on one occasion administered corporal punishment to the child. Mr. Ronka explained at the time he spanked the child, he believed that the child was wearing a diaper. No other incident has been shown to have occurred and the court specifically finds that Mr. Ronka has not in any manner been abusive toward the child.

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

The court finds that each parent possesses the ability to care for the minor child. The mother was the primary custodian of the child at birth and continued to be the primary physical custodian until the parties agreed to an equal split of the time with the child at some point after mother moved to North Carolina, whereby the parties exchanged the child every thirty days. That arrangement continued until the child was enrolled in school, which required the child to be in North Carolina with the mother as the primary physical custodian for each nine-week period of school, with school continuing throughout the 'year, beginning in July and ending sometime in June. Since the original custody order was entered in this case, all custody orders have identified mother as the primary physical custodian.

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

A child needs a significant degree of stability and continuity in his life. Mother currently enjoys primary physical custody of A.J.L. Considering the distance between the residence of each party, with father living in Lawrence County and mother living in the state of North Carolina, father enjoys a significant amount of partial custody whereby the father has the child during the vacation period that occurs at the end of each nine-week session of school. This arrangement is able to occur because of the mother’s willingness to enroll the child in anon-traditional school schedule that is available in North Carolina, which allows for an all year schedule. If granted, father’s request for a change in primary physical custody to him would cause a total disruption in A.J.L.’s current routine and a change in enrollment to a different school district. Father has not shown any need for such a change. Father cites as one reason for requesting a change in desire to have the child attend the Laurel school district where he and all of his family had attended school. The court does not view father’s desire to have the child attend the Laurel school district to be a reason for change. There is no evidence of any unique capabilities for education that is available in the Laurel school district that is necessary for the child’s education. Although father expresses a desire for the child to attend the Laurel school district, he also proposes as an alternative that the child enroll in cyber school and have shared physical custody of the child every thirty days as had occurred in the past. If such alternative were allowed, the child would have little or no contact with the Laurel school district itself, thus calling into question father’s own stated motivation of wanting the child to attend the Laurel school district. The child is doing well in his current school schedule. There is no reason from an educational standpoint to direct a change in the manner in which the child is educated.

5. The availability of extended family.

Both mother and father are originally from Lawrence County. Most of the family of both mother and father reside in Lawrence County. Father resides in the same residential structure as the paternal grandparents. A set of great-grandparents also reside in Lawrence County. The maternal grandmother lives in North Carolina as well as mother’s brother. The child has in Lawrence County a half-sister and a step-sister as well as other older half-siblings. In North Carolina the child has a younger half-sister and half-brother who are the result of mother’s marriage to Sean Ronka, all of whom make up the household of mother.

The court finds that given the frequency with which the child returns to Lawrence County given the year-round school schedule, the child has ample opportunity to interact with the extended family located in Lawrence County.

6.The child’s sibling relationships.

A J.L. is the only child between the parties. Father has two older children to a previous spouse. Father has adopted one of the children of the other ex-spouse with whom he currently resides and is a part of his household. There is another daughter of his current ex-wife’s with whom he resides that is also a part of that household. Mother has two children Ani, age 3 and Wesley, an infant, who are the product of her current marriage to Mr. Ronka. A J.L. has a good relationship with all of the children and/or stepchildren of both parties, especially mother’s children since they are younger and closer in age.

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

A J.L. is six years of age and is too young to provide the court with a preference that should be considered as a factor in this case. However, the court did have the opportunity to question A J.L. and there is nothing in the testimony given by the child that would indicate to the court a need to change the current custody arrangement. The child enjoys spending time with both parents and is well adjusted to his current educational program in which he is enrolled.

8. The attempts of a parent to turn the child against the other parent.

There has been no evidence presented to the court to warrant the conclusion that this factor is an issue.

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

The court finds that each parent has a real love for A.J.L. and that both parties care for his emotional needs. Both parents maintain a stable residence. In father’s residence, the child has the ability to spent time both with his father and his paternal grandparents, who live in the same structure but in a separate apartment. The child goes freely between the apartment of his father and the apartment of his grandparents. Mother has a traditional single family home that is adequate and the family unit includes mother, the child’s stepfather, Mr. Ronka, and the child’s two younger half-siblings, all of whom form a traditional and stable family unit.

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

Both parties are good parents who have and will attend to the daily physical, emotional, developmental, educational and special needs of the child. Both parties spend an appropriate amount of time with the child when each party has physical custody. Both parties maintain households that include the child as part of the household. Both parties are concerned for the child’s education and are able to assist the child with homework and school activities.

11.The proximity of the residences of the parties.

Father lives in Lawrence County, Pennsylvania and mother lives in Haverton, North Carolina. This distance creates difficulty for the parent who does not have the primary physical custody to have regular on-going physical contact with the child. However, mother, through her own initiative, has lessened this difficulty by enrolling the child in a school that offers an all-year school schedule that allows for a break of three weeks after each nine-week session with a longer break of five or six weeks in between school years in the summer. Father is fortunate to have the ability to have the child for a period of physical custody at the end of every nine-week school session.

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

The court is satisfied that both parents are capable of caring for A.J.L. and making necessary child care arrangements. Father is on social security disability and given the nature of the residential structure in which he resides, where his parents have an apartment within the same structure that is accessible to the child, child care is not an issue. There is no evidence that mother has any child care issues nor is there any evidence that mother is in need of obtaining any child care while she enjoys the primary physical custody. The record reflects that mother is available to the child at all times when the child is not in school.

13. The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another.

The parties are capable of adhering to an appropriate level of communication and cooperation from matters relating to the care of A.J.L. Although some evidence was presented of the child being brought to counseling by the mother without the father being informed of it at the time it occurred, this was an isolated incident. Father has also complained of not receiving communication from the school; however, the court finds that the school may not have provided father with all the information he requested in the manner in which he requested it, but to the extent that the school fell short in communicating with father or responding to his requests, such was not the fault of mother. When the child comes to Lawrence County, mother will prepare a package of papers for the child to bring with him so the father can review them. The court finds that the parties understand that it is important that they communicate in an appropriate manner and the court further finds that mother and father can and will likely continue to interact appropriately.

14. Flistory of drug or alcohol abuse of a party or members of a party’s household.

No evidence was presented that would cause this court to conclude that drug and/or alcohol abuse is a concern relative to either parent.

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

Father has had some mental health issues but the court is satisfied that the father has those issues under control, that he is mentally and physically stable and that the father’s mental health issues do not impact negatively upon the child. There is no evidence of any present mental or physical condition of the mother that would affect her ability to care for the child.

Taking all of the above factors into consideration, the court finds that the child’s best interests are served with the mother continuing to be the primary physical custodian as long as the child continues to be enrolled in the all-year school program. To change custody to the father would lessen the child’s time with the mother. The all-year program is available in North Carolina; it is not available in Lawrence County, Pennsylvania. Therefore, the current situation where the child can spend substantial time with the father at the end of every nine-week period of school is a circumstance that should be taken advantage of, given the distance between the parties. This schedule allows the child to have regular substantial contact with both mother and father and with what family is present in each location. If the court were to change primary physical custody, the mother, who has for most of the child’s life, enjoyed primary physical custody and has never had less than shared physical custody, would be left with having the child for a period of summer vacation and holiday breaks from school. This conclusion is supported by the opinion of the custody evaluator, who made the recommendation that the status quo of the current custody arrangement be maintained as it ensures ongoing conduct with both parents even though the parties live a substantial distance from each other. The custody evaluator also gave the opinion that it would be detrimental to remove the child completely from his existing environment with his mother and have him enroll in a Pennsylvania school. This would be a radical change from the arrangement which the child has known since at least 2007 where the child has had regular contact with both parents. Although father has suggested cyber school as an alternative with the child to have equal time with both parents and be schooled through the use of a computer, the court finds that insufficient evidence was presented to suggest cyber school as a viable alternative and was not recommended by the custody evaluator. If cyber school were utilized, the child would not be attending school in a traditional classroom setting and it is unknown how the child would adapt to that type of educational experience. The current educational experience works well and the child is thriving in it; therefore, to make a radical change such as cyber school would have an unknown result and is unnecessary given the frequent contact that the child has with both parents under the existing arrangement.

For the foregoing reasons, the court will enter an appropriate order that will provide a custody order that essentially maintains the status quo of mother having the primary physical custody and father having the substantial portion of the vacation time when school is not in session, with the parties to share transportation.

ORDER OF COURT

And now, September 18, 2012, following a custody hearing, and in accordance with the accompanying opinion of even date herewith, it is ordered and decreed as follows:

1. The mother, Trinitie Myers, now Ronka, is awarded primary physical custody of the minor child, Alexander Jason Lohr, bom May 1, 2006, subject to the partial custody rights of the father as outlined below. The custodial parent has the obligation to foster and encourage a healthy relationship between the minor child and the non-custodial party.

2. The parties shall have shared legal custody of the minor child. Legal custody is the legal right to make major decisions affecting the best interests of the child. Major parental decisions concerning the child include, but are not limited to, health, medical, dental, orthodontic, mental health treatment, education, religious training and upbringing. Except in the case of medical emergencies, the custodial parent shall consult with the non-custodial parent. Shared legal custody does not give one parent final authority in the event of a dispute. The parties shall execute any and all documents or releases necessary to effectuate legal custody, including but not restricted to, authorizations and/or releases for school reports, medical reports, insurance documents and documents required by local, state or federal authorities. Both parties shall have the right to obtain and review all information contained in records of the child, including medical, dental, psychiatric, educational, and religious records and documents, in accordance with 23 Pa.C.S.A. §5309. Neither parent shall enroll the child into curricular or extra-curricular activities without prior notice to and consent of the other parent. Each parent shall keep the other informed of the child’s activities, school events, and medical appointments. Each parent shall keep the other notified of all important issues regarding the minor child. This order shall serve as a release to any medical, educational, or religious provider to release information to both parents pursuant to Title 23 Pa.C.S.A. §5336, all parties to have access to the child’s records and information.

3. The father, Jason Alexander Lohr, is awarded partial custody rights with the minor child during every school break for a minimum of three (3) weeks each break, including the lengthier summer break that occurs between school years. However, if summer break is more than 35 days, father shall have the child for one more day for each two days that the break exceeds 35 days. In computing father’s period of summer vacation, travel days shall not be included as part of father’s period of physical custody.

4. In even-numbered years, the father shall have custody of the minor child on Thanksgiving and the mother shall have custody of the minor child on Christmas. Father shall have custody of the minor child on Easter and mother shall have custody of the minor child on the 4th of July. In odd-numbered years, the mother shall have custody of the minor child on Thanksgiving and father shall have custody of the minor child on Christmas. Mother shall have custody of minor child on Easter and father shall have custody of the minor child on the 4th of July.

5. Regarding transportation, unless otherwise agreed, the child shall be exchanged at the Marine Corps Museum at Quantico Military Base in the Commonwealth of Virginia.

6. Transportation may be provided by a family member or someone well-known to the child. All parties and anyone else involved with transportation shall comply with the laws and regulations of the Commonwealth of Pennsylvania, including those regarding child safety restraint apparatus in any vehicle used to transport the child.

7. The parties are directed to fully cooperate with each other in fulfilling the requirements of this order and all other orders in connection with this matter and to comply with all provisions contained in the order(s). All communications regarding custody issues shall take place directly between parents, never using their child as an intermediary.

8. This order supersedes all prior custody provisions in the within captioned case. All prior custody orders are null and void.

9. The parties may modify the terms of the above custody and partial custody as they both agree. One parent shall not change these provisions without the consent of the other.

10. While in the presence of the child, neither party shall make any remarks or do anything which can be in any way construed as derogatory or uncomplimentary to the other, and it shall be the duty of each parent to uphold the other party as one whom the child should respect and love. To the extent possible, each party shall not permit any other person from making derogatory comments in the presence of the child. Each parental figure shall refer to the other by the appropriate role names such mom, dad, your grandmother, etc.

11. Lawrence County retains jurisdiction of this custody case. Neither party shall remove the child from the jurisdiction of this court with the intent of changing the physical residence of the child without the written consent of the other parent or approval of the court. Neither party shall permanently relocate if the relocation would significantly impair the other party’s ability to exercise his or her custodial rights without a minimum notice of ninety (90) days prior to the other parent. The ninety-day notice is designed to afford the parent the opportunity to negotiate the custody arrangements or to have the matter scheduled before the court. The party proposing the relocation must notify all parties in accordance with title 23 Pa.C.S.A. §5337 of the custody act. No relocation shall occur unless every person with custodial rights consent, or the court approves the proposed relocation in accordance with §5337 procedures.

12. The parties shall abide by the terms of the appendix attached hereto, incorporated herein, and made part hereof.

13. The prothonotary shall be responsible for properly serving a copy of this order upon all counsel of record.


author: COX, J.,

text:
    McInnes Services, Inc. v. Pure Metals Corp.

      Charles Y Mansell, for plaintiff.

      Paul Lynch, for defendant.
    June 22, 2012
   COX, J.,

Before the court for disposition is the petition to strike and/or open foreign judgment filed on behalf of the defendants Pure Metals Corporation and Paul Lynch, which argues that the foreign judgment should be stricken or opened as the plaintiff Mclnnes Services, Inc. has failed to demonstrate that the state of Utah had personal jurisdiction over defendant Lynch because defendant Lynch is not the president of Pure Metals Corporation nor has he had sufficient contacts with the state of Utah.

The plaintiff filed a complaint in the fourth judicial district court of the State of Utah at case number 119104200 against the defendants and obtained a default judgment against defendant Lynch in the amount of $17,586.43 plus additional costs on December 14, 2011. The plaintiff then filed a praecipe for entry of foreign judgment on December 29,2011, for the same amount against the defendants with the prothonotary of Lawrence County. On January 9, 2012, the defendants filed a petition to strike and/or open foreign judgment alleging that the judgment should be stricken regarding Pure Metals Corporation as they were not included on the original judgment entered in Utah. In addition, the defendants contend that the foreign judgment should be stricken or opened regarding defendant Lynch as he did not have sufficient contacts with the state of Utah to confer personal jurisdiction to the District Court of Utah. In support of the latter contention, the defendants have provided the court with minutes of the organizational meeting and directors’ meeting, which indicate that Paul Lynch and Charles Barletto are the directors of Pure Metals Corporation and Charles Barletto was elected as president of the Corporation while defendant Lynch was elected as secretary and treasurer of the corporation. In response, the plaintiff argues that defendant Lynch has represented to them that he was president of the corporation and he was identified as the only incorporator on the articles of incorporation filed with the Commonwealth of Pennsylvania Department of State. Moreover, the plaintiff avers that defendant Lynch had numerous contacts with the State of Utah, such as telephone conversations and e-mails regarding the underlying contract.

The parties have stipulated that the foreign judgment should be stricken regarding Pure Metals Corporation as it was not named in the original judgment entered in Utah. The court must now address whether defendant Lynch was subject to Utah’s Long-Arm Statute and whether personal jurisdiction was properly exercised regarding the original judgment.

The authority to open a default judgment is vested in the equitable powers of the court and will only be upset if an abuse of discretion occurs. PNC Bank, N.A. v. Unknown Heirs, 929 A.2d 219, 228 (Pa. Super. 2007). In order to open a default judgment, the petitioner must establish the following: “(1) the petition to open must be promptly filed; (2) the failure to appear or file a timely answer must be excused; and (3) the party seeking to open the judgment must show a meritorious defense.” Id. (citations omitted). In order to open a judgment, the petitioner must aver a valid defense and establish equitable considerations that provide the court with an impression that there is a need for relief. Ehnes v. Wagner, 388 Pa. 102, 104, 130 A.2d 171, 172 (1957) (citing Lened Homes, Inc. v. Dept. of Licenses and Inspections, 386 Pa. 50, 53, 123 A.2d 406, 407 (1956)).

It is well established that the petitioner must prove each of the following: “1. the petition was promptly filed after the judgment was entered; 2. a legitimate explanation exists; and 3. a meritorious defense to the underlying substantive claim is advanced.” Rounsley v. D.C. Ventre & Sons, Inc., 361 Pa. Super. 253, 256, 522 A.2d 569, 571 (1987) (citing Wolfskill v. Egan, 350 Pa. Super. 223, 504 A.2d 326, 327 (1986)). “There must be more than mere conflict of evidence, or oath against oath, but such evidence as would persuade the court that, upon submission of the issue to a jury, a verdict in their favor could be upheld.” Ehnes, supra, (citing Ahrens v. Goldstein, 376 Pa, 114, 121, 102 A.2d 164, 167 (1954)). The petitioner bears the burden of producing evidence that a valid defense exists. Haggerty v. Fetner, 332 Pa. Super. 333, 339, 481 A.2d 641, 644 (1984) (citation omitted).

A petition to strike a judgment differs from a petition to open in that a petition to strike is a common law proceeding and operates as a demurrer to the record and the petition to open is an appeal to the court’s equitable powers. Cintas Corp. v. Lee’s Cleaning Services, Inc., 549 Pa. 84, 700 A.2d 915 (1997); Resolution Trust Corp. v. Copley QuWayne Associates, 546 Pa. 98, 683 A.2d 269 (1996); McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1973). A petition to strike will only be granted where a fatal defect appears on the face of the record. First Union Nat. Bank v. Portside Refrigerated Services, Inc., 827 A.2d 1224, 1227 (Pa. Super. 2003). As a result, the court will not look beyond the record in determining whether to strike a judgment. Id. However, the court may look to facts outside of the record when determining whether to open a judgment. Comyn v. Southeastern Pennsylvania Transp. Authority, 141 Pa. Cmwlth. 53, 594 A.2d 857 (1991). If the judgment is self-sustaining it cannot be stricken from the record. Malakoff v. Zambar, Inc., 446 Pa. 503, 506, 288 A.2d 819, 821 (1972) (citing Weinberg v. Morgan, 186 Pa. Super. 322, 325, 142 A.2d 310, 312 (1958)). “Ajudgment may be stricken only where the circumstances which are relied on to establish that the judgment was improperly or irregularly entered do in the law have that effect.” DeCoatsworth v. Jones, 536 Pa. 414, 422, 639 A.2d 792, 796 (1994) (quoting 12 Standard Pennsylvania practice 2d section 71:177).

The defendants have raised issues regarding the Utah Long-Arm statute and whether that statute provided the District Court of Utah personal jurisdiction over defendant Lynch. The express purpose of the Utah Long-Arm statute is stated as follows:

It is declared, as a matter of legislative policy, that the public interest demands the state provide its citizens with an effective means of redress against nonresident persons, who, through certain significant minimal contacts with this state, incur obligations to citizens entitled to the state’s protection. This legislative action is necessary because of technological progress which has substantially increased the flow of commerce between the several states resulting in increased interaction between persons of this state and persons of other states. U.C.A. § 78B-3-201(2).

The acts that avail a person of the state’s protection are explained in U.C.A. § 78B-3-205. That statute asserts:

[A]ny person or personal representative of the person, whether or not a citizen or resident of this state, who, in person or through an agent, does any of the following enumerated acts is subject to the jurisdiction of the courts of this state as to any claim arising out of or related to:
(1) the transaction of any business within this state;
(2) contracting to supply services or goods in this state;
(3) the causing of any injury within this state whether tortious or by breach of warranty;
(4) the ownership, use, or possession of any real estate situated in this state;
(5) contracting to insure any person, property, or risk located within this state at the time of contracting;
(6) with respect to actions of divorce, separate maintenance, or child support, having resided, in the marital relationship, within this state notwithstanding subsequent departure from the state; or the commission in this state of the act giving rise to the claim, so long as that act is not a mere omission, failure to act or occurrence over which the defendant had no control; or
(7) the commission of sexual intercourse within this state which gives rise to a paternity suit under title 78B, chapter' 15, Utah uniform parentage act, to determine paternity for the purpose of establishing responsibility for child support. U.C.A. §78B-3-205.

To find that Utah courts have personal jurisdiction over a nonresident, the court must determine that the claims against the defendant arise from the activities enumerated in U.C.A. § 78-3-205 and the contacts with Utah must be sufficient to allow jurisdiction to be exercised without violating the due process clause of the United States Constitution. Radcliffe v. Akhavan, 875 P.2d 608, 611 (Utah App. 1994) (citing Anderson v. American Society of Plastic Surgeons, 807 P.2d 825, 827 (Utah 1990)). Due process requires that the defendant must have had minimum contacts with the forum state such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. Ervin v, Lowe’s Companies, Inc., 128 P.3d 11, 17 (Utah App. 2005) (quoting Parry v. Ernst Home Ctr. Corp., 119 P.2d 659, 662 (Utah 1989)). “Inperforming the minimum contacts analysis, we look at whether the defendant...’ purposely availed itself of the privilege of conducting activities within the forum state’ and whether there was a ‘balancing of the convenience of the parties and the interests of the state in assuming jurisdiction.’” Id. (quoting Perry, 779 P2d at 662). In Ervin, the court determined that minimum contacts were not established by the corporation selling products to Utah among many other locations in the United States as “knowledge of the mere possibility that its product might be taken into a region of the country in which Utah is located is not sufficient... to make a difference in this regard.” Id., 128 P3d at 18 (quoting Perry, 779 P2d at 667). Moreover, in Radcliffe, the court decided that the minimum contacts test was satisfied when an out-of-state resident met with another party in Utah on three occasions to negotiate purchasing a Utah business and the agreement was reached in Utah because those activities made it reasonable to anticipate that he may have to defend a suit regarding that transaction in Utah. Radcliffe, 875 P2d at 612.

The Utah Long-Arm Statute grants personal jurisdiction arising out of claims that involve any business transaction within the state. U.C.A. 78B-3-205. “Such is not limited to nonresidents conducting their own trade or business within the state. Rather, it is sufficient that nonresidents transact business in Utah regardless of whether it is related to the Utah resident’s trade or the business of the resident.” Kamdar & Co. v. Laray Co., Inc., 815 P2d 245, 248 (Utah App. 1991). In Kamdar, a Utah partnership brought suit against a California-based corporation and two individual defendants, who are California residents, based upon an arrangement where the Utah partnership would conduct accounting and financial services for the California corporation. For 18 years, the Utah partnership performed all of the corporation’s accounting and financial advising tasks. In addition, the partnership conducted similar activities for two individuals associated with the corporation as well. The defendants would send their financial records to the partnership’s offices in Utah and the partnership would return various reports, tax returns, statements and other similar documents to the corporation and the individuals. Eventually, one of the individual defendants informed the partnership that its services were no longer needed and the partnership submitted its final billing statement for the business and personal accounting services rendered to the defendants. In response, one of the individual defendants sent a letter back to the partnership disputing the amounts due and the partnership filed suit in Utah. The defendants filed a motion to dismiss for lack of personal jurisdiction, which was granted by the trial court and the partnership appealed claiming that Utah had personal jurisdiction over the defendants.

The Kumdar court reiterated the two-part test for personal jurisdiction, which mandates that the claims arise from activities enumerated in the Utah Long-Arm statute and the defendant’s contacts must be sufficient to allow jurisdiction to be exercised without violating the defendant’s right to due process. Id., 815 P.2d at 248 (citations omitted). The defendants argued that they did not conduct their business in Utah, so the long-arm statute fails to extend personal jurisdiction over them. However, the court emphasized that the long-arm statute extends to activities arising out of any business transaction within the state. Id. The Kamdar court reasoned it is sufficient that the out-of-state defendants make a business transaction in Utah rather than actually conducting their own business in that state. Id. Therefore, the court held that sending their financial records to Utah so the plaintiff could perform accounting services was sufficient to establish that the claims arose from activities enumerated in the Utah Long-Arm statute. Id.

Next, the Kamdar court examined whether requiring the defendants to defend themselves in Utah violated the due process clause. The court explained, “In order to satisfy due process requirements, a defendant’s contacts with Utah must be ‘such that maintenance of a suit does not offend traditional notions of fair play and substantial justice.’” Id., 815 P.2d at 249 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945)). As such, the defendants must have purposefully availed themselves of the privilege of conducting business there and could have reasonably anticipated being liable for claims in that state. Id. (citations omitted). The court also recognized, “We must also balance ‘the convenience of the parties and the interests of the state in assuming jurisdiction’ by examining ‘the relationship of the defendant, the forum, and the litigation, to each other.’” Id. (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980); Mallory Engineering v. Ted R. Brown & Assoc., 618 P.2d 1004, 1008 (Utah 1980)). The Kamdar court recognized that the original agreement between the parties was made in California, but the disputed services were performed in Utah. Id. Moreover, the defendant annually sent their financial records to Utah for 18 years, so that the plaintiff could perform their accounting and financial services. Id. As a result, the Kamdar court determined that the defendants purposefully availed themselves of the privilege of conducting business in Utah and it was constitutionally permissible to require the defendants to defend themselves in Utah. Id.

In the case sub judice, the plaintiff obtained a default judgment against defendant Lynch as president of Pure Metals Corporation in the amount of $17,586.43 plus additional costs on December 14, 2011, from the fourth judicial district court of the state of Utah. The plaintiff then filed a praecipe for entry of foreign judgment on December 29, 2011, for the same amount against the defendants in the office of the prothonotary of Lawrence County. The defendants filed a timely petition to strike and/or open foreign judgment on January 9, 2012, contending that the District Court of Utah did not have personal jurisdiction over defendant Lynch and the foreign judgment should be stricken or opened. It appears as though the defendants have asserted a valid defense as their petition to strike and/or open foreign judgment raises various issues of fact regarding the validity of personal jurisdiction in Utah. First, the defendants claim that the plaintiff merely provided hauling services for Pure Metals Corporation and not services for defendant Lynch. Moreover, defendant Lynch never resided in Utah and he does not have any connection with the state of Utah, which includes the lack of business activity in that state. The defendants assert that defendant Lynch was not involved in any of the transactions or occurrences regarding the underlying claims in this case. The plaintiff also filed suit and obtained the judgment in Utah against defendant Lynch as president of Pure Metals Corporation; however, defendant Lynch was not acting as president as he was the secretary and treasurer of the corporation. In response, the plaintiff contends that defendant Lynch had numerous contacts with the state of Utah, such as telephone conversations and e-mails regarding the underlying contract, and he was the sole incorporator for Pure Metals Corporation.

It is apparent that these pleadings raise a valid defense as to whether the District Court of Utah had personal jurisdiction over defendant Lynch and whether that court had the authority to render a default judgment against defendant Lynch. According to Utah state law and its long-arm statute, it must be established that a foreign defendant had sufficient contacts with or conducted any business activities in the State of Utah. However, in the current matter, there remain issues regarding defendant Lynch’s contact with the State of Utah in regard to the underlying contract. The court cannot find sufficient evidence to establish that defendant Lynch had contact with the state of Utah beyond the plaintiff’s averments in its answer that defendant Lynch contacted individuals by telephone and e-mail regarding the underlying contract. The plaintiff has attached copies of several e-mail messages to its answer and new matter to petition to strike and/or open new judgment; however, those messages were sent between Matthew Benegasi, an employee of Pure Metals Corporation, and Meg Mclnnes, who is employed by the plaintiff. None of those e-mails were actually sent by defendant Lynch, but he did receive a copy of several of the e-mail messages. Moreover, the plaintiff merely avers that defendant Lynch acted in his capacity as an officer of Pure Metals Corporation, but there is no indication that he conducted business on a personal basis in the State of Utah. Thus, it would be improper to confer personal jurisdiction upon the state of Utah to render a personal judgment against defendant Lynch, who did not have sufficient contacts with the state of Utah. This is dissimilar to Kamdar, in which the court upheld personal jurisdiction against the individual defendants because they hired the plaintiffs to conduct accounting services for both the corporation and themselves personally. In the current matter, there is no indication that the plaintiff performed any tasks for defendant Lynch personally. The defendants have averred facts that create an issue as to whether the State of Utah had personal jurisdiction in accordance with its long-arm statute, which could provide a valid defense to the foreign default entered in this case. Furthermore, corporations are formed to protect individuals from liability, yet the plaintiff fails to set forth any averments that would permit it to pierce the corporate veil and impose liability upon defendant Lynch. Therefore, the petition to open foreign judgment is granted and the foreign judgment entered in this case is opened.

However, the petition to strike foreign judgment is denied as there is not a fatal defect readily apparent on the face of the record in its current state. The court is not permitted to examine facts beyond the record in determining whether to strike a default judgment. Based purely on the documentation in the record, the court did not discover a fatal defect that would permit the foreign judgment to be stricken as the proper procedure was followed in obtaining and filing the same in the office of the prothonotary of Lawrence County. Hence, the petition to strike foreign judgment is denied regarding defendant Lynch.

For the reasons set forth in this opinion, the defendants’ petition to strike and/or open foreign judgment is granted in part and denied in part. The foreign judgment regarding Pure Metals Corporation is stricken as it was not named on the original judgment entered in the state of Utah. In addition, the foreign judgment regarding Paul Lynch is opened. However, the foreign judgment regarding Paul Lynch is not stricken as there is no fatal defect with the judgment on the face of the record.

ORDER OF COURT

Now this June 22, 2012, this case being before the court on May 29, 2012, for a hearing and oral argument on the petition to strike and/or open foreign judgment filed by the defendants Pure Metals Corporation and Paul Lynch, president, with both parties appearing, the plaintiff-respondent, Mclnnes Services, Inc., represented through counsel, Charles Y. Mansell, esquire and the defendants-petitioners Pure Metals Corporation and Paul Lynch, President, represented through counsel, Paul Lynch, esquire and after a hearing and argument held, and consideration of the applicable file, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

1. In accordance with the attached opinion, the petition to strike foreign judgment regarding Pure Metals Corporation is hereby granted.

2. The foreign judgment regarding Pure Metals Corporation is stricken from the record and the prothonotary is directed to strike said foreign judgment from the docket and record.

3. In accordance with the attached opinion, the petition to strike foreign judgment regarding Paul Lynch is hereby denied.

4. In accordance with the attached opinion, the petition to open foreign judgment regarding Paul Lynch is hereby granted.

5. The foreign judgment regarding Paul Lynch is hereby opened and the prothonotary is directed to mark the foreign-judgment against Paul Lynch opened in the docket and record.

6. The prothonotary is directed to serve a copy of this order of court upon counsel of record, Charles Y. Mansell, esquire and Paul Lynch, esquire.


author:
DONAHUE, J.,
     Donahue, J.,

text:
    Sovich v. Estate of Andrew Sovich, Jr.

      James N. Perich, for plaintiff.

      Carl Bernard Zacharia, for defendant.
    August 29, 2012
   DONAHUE, J.,

Richard Sovich (“Richard”) appeals from the order of the orphans’ court division of the court of common pleas of Westmoreland County, dismissing his motion to enforce a claim against the estate of Andrew Sovich, Jr. (“Andrew”), deceased. After careful review of the record and the parties’ briefs, we affirm.

In 1982, Richard agreed to loan Andrew the sum of $15,000 to assist him in repaying a bank loan after losing his job. Trial court decision and order, 7/12/11, at 1. The loan was memorialized by agreement dated July 26, 1982 (“agreement”), which provided as follows:

On this date I am lending to my brother Andy + his family the sum of $ 15,000.00 to repay a bank loan. This money is to be repaid in a reasonable amount of time (5 years). If it is not repayed (sic) as stated, interest will be added at the prevailing rate after July 1987.
Is/ Richard Sovich Is/ Andrew Sovich

Loan agreement, 7/26/82.

After a hearing, the trial court found that, as of the date of Andrew’s death on December 2,2007, Andrew had not made any payments on the loan. Id. at 2-3. On March 7, 2008, Richard filed a claim against Andrew’s estate. On May 13, 2011, Richard filed a motion to enforce that claim, which the estate opposed. A hearing was scheduled for June 6, 2011 and, by decision and order docketed July 13, 2011, the trial court dismissed Richard’s claim as barred by secion 3-118(a) of the uniform commercial code (“code”), codified at 13 Pa.C.S.A. § 3118(a), which imposes a six-year limitation period on notes payable at a definite time. This timely appeal followed, in which Richard raises the following issues for our review.

1. Whether the trial court erred in determining the agreement between Richard and Andrew Sovich is a negotiable instrument under 13 Pa.C.S.A. § 3104?
2. Whether the trial court erred in determining that the statute of limitations applicable to the agreement is 13 Pa.C.S.A. §3118?
3. Regardless of the applicable limitations period, whether the trial court erred in failing to recognize an exception to the limitations period due to a confidential relationship between Richard and Andrew Sovich?
4. Was the transaction governed by contract principles, with no demand for payment having been made prior to Andrew Sovich’s death?

Brief of appellant, at 1.

When reviewing a decree entered by the orphans’ court, this court must determine whether the record is free from legal error and the trial court’s factual findings are supported by the evidence. Because the orphans’ court sits as the fact-finder, it determines the credibility of the witnesses and, on review, this court will not reverse the trial court’s credibility determinations absent an abuse of discretion.

In re Estate of Aiello, 993 A.2d 283, 287 (Pa. Super. 2010).

Richard’s first, second, and fourth appellate issues hinge on his assertion that the trial court erred when it found that the code, rather than general common law contract principles, applied to the agreement. Richard contends that the code is inapplicable here because the transaction at issue was personal, rather than commercial, and as such is outside the intended scope of the code.

In support of his argument, Richard cites to “underlying purposes and policies” of the code, as set forth in 13 Pa.C.S.A. § 1103:

(1) to simplify, clarify and modernize the law governing commercial transactions; [and]
(2) to permit the continued expansion of commercial practices through custom, usage and agreement of the parties [.]

13 Pa.C.S.A. §§1103(a)(1)-(2). Richard claims that interpreting his intra-family, non-commercial agreement with Andrew under the commercial code would not serve to further these purposes.

We begin by noting that the ultimate viability of Richard’s claim turns on his characterization of the agreement as a common law contract rather than a negotiable instrument. However, in his brief, Richard does not address the question of whether the agreement is, in fact, a negotiable instrument under 13 Pa.C.S.A. § 3104 as determined by the trial court. Section 3104 defines a negotiable instrument as follows:

§3104. Negotiable instrument
(a) Definition of “negotiable instrument”.- Except as provided in subsections (c) and (d) [not applicable here], “negotiable instrument” means an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order, if it:
(1) is payable to bearer or to order at the time it is issued or first comes into possession of a holder;
(2) is payable on demand or at a definite time; and
(3) does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money, but the promise or order may contain:
(i) an undertaking or power to give, maintain or protect collateral to secure payment;
(ii) an authorization or power to the holder to confess judgment or realize on or dispose of collateral; or
(iii) a waiver of the benefit of any law intended for the advantage or protection of an obligor.

13 Pa.C.S.A. § 3104(a).

The term “payable to bearer or to order” is defined in 13 Pa.C.S.A. § 3109 as follows:

§3109. Payable to bearer or to order
(a) Payable to bearer. —A promise or order is payable to bearer if it: (1)
states that it is payable to bearer or to the order of bearer or otherwise indicates that the person in possession of the promise or order is entitled to payment;
(2) does not state a payee; or
(3) states that it is payable to or to the order of cash or otherwise indicates that it is not payable to an identified person.
(b) Payable to order. — A promise or order that is not payable to bearer is payable to order if it is payable:
(1) to the order of an identified person; or
(2) to an identified person or order

13 Pa.C.S.A. §§3109(a)-(b).

Although Richard’s brief is silent on this key aspect of this matter, the trial court addressed the matter in its opinion and concluded that the agreement was, in fact, a negotiable instrument. Our review leads us to the opposite conclusion.

We have previously described the purpose of negotiable instruments as follows:

A negotiable instrument is an instrument capable of transfer by endorsement or delivery. Negotiability provides a means of passing on to the transferee the rights of the holder, including the right to sue in his or her own name, and the right to take free of equities as against the assignor/payee.

Manor Bldg. Corp. v. Manor Complex Assocs., 645 A.2d 843, 846 (Pa. Super. 1994). Pursuant to the code, the three requisites of a negotiable instrument are that it: (1) is payable to bearer or to order at the time it is issued or first comes into possession of a holder; (2) is payable on demand or at a definite time; and (3) does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money. See 13 Pa.C.S.A. § 3104(a). Here, the agreement signed by Richard and Andrew does not provide that it is payable either “to bearer” or “to order.” See 13 Pa.C.S.A. § 3109. Moreover, nothing in the note suggests that it was intended to be capable of transfer. See Manor Bldg. Corp., supra. Rather, the document simply memorializes a loan from Richard to Andrew and details the conditions of repayment and interest. As such, the trial court erred in concluding that the agreement was a negotiable instrument under the code subject to the statute of limitations contained in 13 Pa.C.S.A. § 3118.

The document at issue here is simply a note obligating Andrew to repay Richard the sum of $15,000 five years from the date of the loan. As such, the statute of limitations contained in 42 Pa.C.S.A. § 5525(7) applies. Nevertheless, Richard’s claim fails.

Section 5525(7) imposes a four-year limitation on actions “upon a negotiable or nonnegotiable bond, note or other similar instrument in writing. Where such an instrument is payable upon demand, the time within which an action on it must be commenced shall be computed from the later of either demand or any payment of principal of or interest on the instrument.” 42 Pa.C.S.A. § 5525(7). Richard asserts that the note is payable on demand, with no absolute date at which repayment is due. Thus, Richard claims, the second sentence of section 5525(7) applies and the statute begins to run “from the later of either demand or any payment of principal or interest on the instrument.” As Andrew never made any payments on the loan, and Richard only demanded payment in 2008 after Andrew’s death, Richard asserts that the action to enforce his claim fell within the statute of limitations. We disagree.

The agreement, dated July 26, 1982, contains a date certain on which payment is due, which is five years from the date it was signed, or July 26, 1987. Thus, the statute of limitations began to run on July 26, 1987 pursuant to section 5525(7). Accordingly, Richard was required to bring an action to enforce his claim within four years of that date, on or before July 26,1991. He did not do so and, accordingly, his claim is time-barred.

Finally, Richard asserts that his confidential relationship with Andrew exempts his claim from the statute of limitations period. However, a review of the record indicates that Richard did not raise this issue before the trial court, either in his motion to enforce the claim or his memorandum of law in support thereof. “Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). As such, this claim is waived.

Order affirmed.

Donahue, J.,

files a concurring opinion.

While I agree with the learned majority that the order of the trial court should be affirmed, I disagree regarding the reasons for doing so. Based upon my review of the record on appeal and the relevant statutory provisions, the written agreement at issue here is a negotiable instrument. The trial court thus did not err in ruling that appellant Richard Sovich’s action is barred by 13 Pa.C.S.A. § 3118, the applicable statute of limitations for negotiable instruments. Accordingly, I concur in the result.

As the majority correctly indicates, Pennsylvania’s uniform commercial code provides that a promise to pay a fixed amount of money is a negotiable instrument if it: (1) is payable to bearer or to order at the time it is issued or first comes into possession of a holder; (2) is payable on demand or at a definite time; and (3) does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money. 13 Pa.C.S.A. § 3104(a). In this case, the second and third requisites are clearly satisfied, as the written agreement in question is payable at a definite time (five years) and contains no requirement of the obligor other than repayment.

Regarding the first requisite, the terms “payable on demand” and “payable on order” are defined in 13 Pa.C.S.A. §3109(a) and (b):

§3109. Payable to bearer or to order
(a) Payable to bearer. —A promise or order is payable to bearer if it:
(1) states that it is payable to bearer or to the order of bearer or otherwise indicates that the person in possession of the promise or order is entitled to payment;
(2) does not state a payee; or
(3) states that it is payable to or to the order of cash or otherwise indicates that it is not payable to an identified person.
(b) Payable to order. — A promise or order that is not payable to bearer is payable to order if it is payable:
(1) to the order of an identified person; or
(2) to an identified person or order

13 Pa.C.S.A. § 3109(a)-(b).

The written agreement at issue here is “payable to order” because it constitutes a promise that is payable to an identified person (the obligee Richard Sovich). 13 Pa.C.S.A. § 3109(b)(2). Contrary to the majority’s suggestion, nothing in sections 3104 or 3109 requires that the document indicate whether it is payable “to bearer” or “to order”. Moreover, I do not agree with the majority’s contention that the case of Manor Bldg. Corp. v. Manor Complex Assocs., 645 A.2d 843 (Pa. Super. 1994), adds a fourth requisite, namely that the parties must have intended for the note to be transferable. Instead, all that is required for a negotiable instrument is that it meets the applicable statutory definition.

Pursuant to 13 Pa.C.S.A. § 3118, the applicable statute of limitations to commence an action on a negotiable instrument is six years from the note’s payment date. In this case, appellant Richard Sovich had to file his claim on the note signed by Andrew Sovich, Jr. on and before July 26,1993. The trial court thus did not err in dismissing this action filed well beyond the expiration of the time period for doing so.

For the foregoing reasons, I concur only in the result reached by the majority.

      . According to a statement from Richard’s counsel contained in the certified record, there was no court reporter present at the hearing in this matter and, thus, no notes of testimony exist.

      . If the agreement were interpreted under the law of contracts, Richard asserts that the statute of limitations contained in 42 Pa.C.S.A. § 5525(7) applies, allowing his claim to go forward.

      . “A confidential relationship occurs when, because of a family relationship or otherwise, one occupies toward another such a position of advisor or counselor as reasonably to inspire confidence that he will act in good faith for the other’s interest.” Gurenlian v. Gurenlian, 595 A.2d 145, 151-52 (Pa. Super. 1991), citing Silver v. Silver, 219 A.2d 659 (Pa. 1966) (quotations omitted).

      . This claim is waived for a second reason. Although the court held a hearing in this matter, the certified record contains no transcript thereof. Instead, there is a statement from Richard’s counsel indicating that “there was no court reporter and therefore no transcript is available.” Notice of appeal, 8/12/11. Pursuant to Pa.R.A.P. 1923:
      If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within ten days after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the lower court for settlement and approval and as settled and approved shall be included by the clerk of the lower court in the record on appeal.
      Pa.R.A.P. 1923. “The purpose of [rule 1923] is to provide a reviewing court with an ‘equivalent picture’ of the proceedings when there is no transcript of the proceedings [available].” General Equip. Mfrs. v. Westfield Ins. Co., 635 A.2d 173, 183 (Pa. Super. 1993) (citations omitted). Absent a transcript of the proceedings or a rule 1923 summary of the proceedings, this court is without an adequate record to decide whether the issue in question has merit and, as such, the issue is waived for purposes of appeal. Id. at 184.
      Here, Richard’s claim involves an issue of fact, i.e. whether he and Andrew shared a confidential relationship. If Richard wished to make a claim based on evidence adduced at the unrecorded hearing, it was his responsibility to create an “equivalent picture” with which we could review the claim. See General Equip. Mfrs., supra. As Richard has failed to provide us with such an “equivalent picture,” we must also deem this issue waived for that reason.

      . 13 Pa.C.S.A. § 3104(e) provides that a negotiable instrument is a “note” if it contains an unconditional promise to pay a fixed amount of money.