author: WETTICK JR., A.J.,

text:
    Montour School District v. Township of Collier

      Ira Weiss and Gregory Gleason, for plaintiff Montour School District.

      Samuel P Kamin and Robert J. Garvin, for plaintiff Township of Robinson.

      Charles M. Means and Howard J. Schulberg, for defendant Township of Collier.

      Michael A. O Rorke, for defendant Chartiers Valley School District.
    July 3, 2007
   WETTICK JR., A.J.,

Motions for judgment on the pleadings of plaintiffs and defendants are the subject of this opinion and order of court.

This litigation involves 137 parcels located in a development known as Cloverleaf Estates West (Cloverleaf properties). Until 2005, the assessment records of Allegheny County described these properties as being in Collier Township. The deeds to the properties described the properties as being in Collier Township. The properties were taxed by Collier Township and Chartiers Valley School District as though they were in Collier Township, and the persons residing in these properties were taxed as if they resided in Collier Township.

Residents of the Cloverleaf properties voted in the Collier Township and Chartiers Valley School District elections. Collier Township made available the same services to persons residing in the Cloverleaf properties that were made available to the residents of Collier Township, including police and medical services. Chartiers Valley School District provided schooling, including adult learning classes, to residents of the Cloverleaf properties.

Robinson Township never provided any services to the residents of the Cloverleaf properties. The Montour schools were not open to any children residing in the Cloverleaf properties.

Pursuant to proceedings at GD05-006088, involving a petition to establish a lot and block system in Collier Township, in 2005 it was discovered that the Cloverleaf properties are located in Robinson Township. Prior to 2005, none of the taxing bodies had any reason to question the accuracy of the assessment records of Allegheny County listing the properties as being in Collier Township.

As of January 2, 2006, residents of the Cloverleaf properties began paying their municipal taxes to the Township of Robinson and as of July 1,2006, they began paying their school taxes to Montour School District.

In this lawsuit, Montour School District and the Township of Robinson (Montour/Robinson) seek to recover (1) the real estate taxes the Cloverleaf property owners paid to the Township of Collier and Chartiers Valley School District (Chartiers/Collier) from 2001 to 2005; (2) the earned income, net profits, occupational privilege, and realty transfer taxes which Cloverleaf residents paid Chartiers/Collier from 2000 to 2005; and (3) cable television franchise fees attributable to the subscribing Cloverleaf residents from 2000 to the present.

The issue raised by this lawsuit is whether the law imposes any obligation on Chartiers/Collier to pay to Montour/Robinson taxes which Chartiers/Collier collected during the period of time in which they assumed responsibility for furnishing government services to the persons residing in the Cloverleaf properties. Montour/ Robinson correctly state that Chartiers/Collier had no legal right to collect these taxes and fees that are the subject of this litigation. However, this case does not involve claims by owners and residents of the Cloverleaf properties to recover taxes which they paid. The issue, instead, is why Montour/Robinson may recover from Chartiers/Collier payments that owners and residents of the Cloverleaf properties made to Chartiers/Collier during the period of time Chartiers/Collier was providing government services to the owners and residents of the Cloverleaf properties.

It appears to be the position of Montour/Robinson that they are not necessarily entitled to every dollar that Chartiers/Collier received from the Cloverleaf property owners. Instead, it appears to be the position of Montour/ Robinson that the Cloverleaf property owners paid more in taxes than the cost of the government services which these property owners received. This windfall belongs to Montour/Robinson rather than Chartiers/Collier.

Montour/Robinson’s position is based on an improper characterization of the manner in which taxes are imposed. Budgets for school districts and municipalities are based on anticipated revenues, most of which will be received from property taxes, income taxes, and the like. The purpose of the annual taxes is to pay for the government services furnished in the year in which the taxes are imposed. Under the Uniformity Clause of the Pennsylvania Constitution, each property owner shall pay his or her proportionate share of the costs of government services which shall be measured by the value of his or her property (or the amount of his or her income) to that of his or her neighbor. Downingtown Area School District v. Chester County Board of Assessment Appeals, 590 Pa. 459, 913 A.2d 194, 199 (2006). Since the Cloverleaf property owners paid only their proportionate share of the government services which Chartiers/Collier provided, there is no windfall that Chartiers/Collier should disgorge. Furthermore, the claim that this court should prevent a windfall is being raised by governmental bodies seeking payments of Cloverleaf property owners that have no connection to any services provided by these governmental bodies.

For these reasons, Montour/Robinson are not entitled to monies paid to Chartiers/Collier in prior years unless there is legislation supporting their claim.

While Montour/Robinson cite legislation stating that they have authority to levy, assess, and collect taxes on real property within the township and school district, including deed transfer taxes, and to levy earned income, net profit, and occupational/privilege taxes upon persons doing business or residing within Robinson, no laws permit them to levy taxes against Chartiers or Collier. Thus, this legislation does not support the claims of Montour/Robinson to taxes Cloverleaf residents paid to Chartiers/Collier for government services which were available to the persons paying the taxes.

Montour/Robinson rely on section 307 of the First Class Township Code, 53 RS. §55307 which reads as follows:

“Whenever the boundaries of any township have been altered or ascertained and established, the court of quarter sessions may adjust the taxes, debts, and expenses for township, municipal and school purposes between the townships, municipalities and school districts affected.”

The March 23, 2005 order of Judge O’Reilly of this court at GD05-006088 establishing the lot and block system in Collier, set January 2, 2006 as the date on which Robinson Township would levy taxes against the Cloverleaf residents and would assume responsibility for providing municipal services. Prior to that date, Collier continued to provide municipal services.

January 2,2006 was the date the boundary line became permanently effective. Under section 2-226 of the School Code of 1949, 24 P.S. §2-226, when the boundary lines of a school district are changed, the change shall take effect at the beginning of the first school year following the change in boundary lines. Consequently, this boundary change did not take effect until July 1, 2006.

Assuming that the boundaries of Chartiers and Robinson were “altered or ascertained and established” within the meaning of section 55307, this section does not support the position of Montour/Robinson that they are entitled to a portion of the taxes paid prior to January 1, 2006 (Robinson) or July 1,2006 (Montour). The title of this provision is Adjustment of Indebtedness and its apparent purpose is to ensure that adjustments are made so that a governmental body that is losing property (Governmental Body A) is not saddled with expenses that should be paid by a governmental body whose boundaries are being expanded (Governmental Body B) and, alternatively, that Governmental Body B receives funds held by Governmental Body A that are intended to cover future services. For example, if in February, Governmental Body A collected taxes intended to pay for garbage services for the entire year and if in April the services were now being provided by Governmental Body B, funds received by Governmental Body A that would have been used to provide these services for the property owners now residing in Governmental Body B should be paid to Governmental Body B. If, on the other hand, Governmental Body B is receiving property containing a new parking garage funded with bonds for which Governmental Body A is responsible, the responsibility should be shifted to Governmental Body B.

There is no apparent reason why the legislature would require a governmental body whose boundaries are being reduced to make payments to a governmental body whose boundaries are being expanded that have no relationship to services that the latter governmental body will now be providing. Thus, this legislation should not be read in this fashion unless the words of the legislation clearly provide for such a result.

The words of section 55307 do not clearly provide for such a result. To the contrary, legislation titled Adjustment of Indebtedness is not intended to direct a court to transfer taxes to a governmental body that has not incurred any indebtedness.

Furthermore, if section 55307 (which uses the word “may”) should be construed to permit a court to make adjustments whenever the interests of justice are served, for the reasons that I have discussed, the interests of justice are not served by making any adjustments in this case.

Montour/Robinson also appear to rely on section 13 of the Act of June 21,1939, P.L. 626, as amended (Second Class Assessment Law), 72 RS. §5452.13, which reads in pertinent part as follows:

“The proper assessors shall, between the triennial assessments, revise any assessment or valuation according to right and equity by correcting errors and by adding thereto any property, improvements or subjects of taxation which may have been omitted or any new property, improvements or subjects of taxation which may have come into being since the last triennial assessment. Any property, improvements or subjects of taxation which may have been omitted shall be assessed and made subject to taxation for the period durinq which said property, improvements or subjects of taxation shall have been omitted but in no event to exceed the period of five calendar years preceding the year in which the property, improvements or subjects of taxation omitted is first added to the assessment roll.” (emphasis added)

This legislation does not apply. The Cloverleaf properties were not omitted from the assessment rolls. To the contrary, they were included on the assessment rolls and the property owners paid real estate taxes to Collier Township, Chartiers School District, and Allegheny County.

For these reasons, I enter the following order of court:

ORDER

On July 3,2007, it is hereby ordered that defendants’ motion for judgment on the pleadings is granted and that plaintiffs’ complaint is dismissed with prejudice.

      . This is a retirement community that made limited use of the public schools.

      . Robinson admits that it is not a party to the cable franchise agreement between Collier and Comcast.

      . The parties have not cited, and I am not aware of, any case law that has addressed this issue.

      . I question whether Montour/Robinson would be taking the position that they owe money to Chartiers/Collier if Chartiers/Collier could establish that the cost of government services furnished to the Cloverleaf residents exceeded the amount of taxes which they paid (assuming that these costs are susceptible to being measured).

      . Under 16 P.S. §3706, a common pleas court shall make an order placing the lot and block system into effect as of the first Monday of January next succeeding the order. Chartiers/Collier argue that this provision (and section 2-226 of the School Code, 24 P.S.) establishes that the legislature did not want proceedings to establish a lot and block system to have any retroactive effect.

      . Statutory headings may be considered in construing a statute. MacElree v. Chester County, 667 A.2d 1188, 1194 (Pa. Commw. 1995); Commonwealth v. Lopez, 444 Pa. Super. 206, 210, 663 A.2d 746, 748 (1995); 1 Pa.C.S. §1924.


source: Caselaw Access Project

author: MOTTO, P.J.,

license: Public Domain

text:
    Boron v. Pulaski Township Board of Supervisors

      Joseph T. Moran, Ryan James and Charles S. Hersh, for plaintiffs.

      Richard A. Harper, for defendant Pulaski Township.

      Bernard R Matthews Jr., for defendant Chief of Police of Northwest Lawrence County Regional Police Department.
    July 10, 2007
   MOTTO, P.J.,

The appellants, Eric Boron and Adultland XXX, have filed an appeal from the adjudication of the Pulaski Township Board of Supervisors which issued a one-year revocation of the license of appellants to operate a sexually oriented business because of a violation of a Pulaski Township ordinance. Presently before the court for disposition is the appellants’ notice of appeal seeking to reverse and vacate the decision of the Pulaski Township Board of Supervisors revocation of Adultland’s business license for one year on the grounds that the township’s ordinance is unconstitutionally vague. For the reasons set forth below, the appellants appeal must be dismissed.

The facts of this case indicate that Adultland XXX is a sexually orientated business owned and operated by Eric Boron and located in Pulaski Township. The chief of police of the Northwest Lawrence County Regional Police Department issued a notice of license revocation to Adultland alleging that Adultland was open for business on Flag Day, June 14,2006, in violation of Pulaski Township ordinance no. 2000-5-22. The ordinance licenses and regulates sexually oriented businesses in Pulaski Township. Eric Boron and Adultland filed a timely appeal from the notice of revocation and requested a local agency hearing before the Pulaski Township Board of Supervisors. The public hearing was scheduled by mutual agreement of the parties for September 6,2006 and conducted on that same date.

At the hearing before the board, the parties entered into a stipulation and summary of evidence. Appellants were able to summarize the evidence that they wished to present to the board of supervisors, and the township was able to present separate summarized evidence upon which it relied in support of the violation. Appellants raised numerous grounds as to why the notice of revocation was improper, including, but not limited to, the fact that Flag Day is not a generally recognized holiday and that the ordinance is unconstitutionally vague. At the hearing, the township board stipulated to the fact that “Eric Boron and Adultland XXX were not aware that the Commonwealth of Pennsylvania recognized Flag Day as a state holiday ....” (See Township board findings of fact, conclusions of law and written decision, dated September 11,2006.) The adjudication issued by the board affirmed the revocation of the sexually orientated business license of appellants for a one-year period.

On October 11, 2006, appellants filed a notice of appeal pursuant to 42 Pa.C.S. §933(a)(2), Pennsylvania Local Agency Law 2 Pa.C.S. §101 et seq., and Local Rule L300, seeking to reverse and vacate the decision. The appellants argued before this court that the one-year license revocation violated a prior enforcement agreement entered into between appellants and Pulaski Township as the result of a prior violation of the township ordinance that occurred when appellants operated the business on Columbus Day, October 10, 2005. Appellants argued that the Columbus Day violation resulted in a settlement agreement that prohibits the board from giving consideration to that prior violation in determining that appellants’ license should be revoked for a period of one year for the Flag Day violation as a second offense, the Columbus Day violation being the first. The prior agreement relating to the Columbus Day violation was not entered into evidence at the proceeding before the board. The appellants included in their appeal a motion to present additional evidence, seeking to add to the record the prior settlement agreement. This court denied that motion by order dated May 4, 2007.

The sole issue to be decided by this court is whether section 18 of Pulaski Township’s Sexually Orientated Business Ordinance no. 2000-5-22 is unconstitutionally vague.

In addressing constitutional violations with respect to a local agency decision, this court’s standard of review is de novo. Piatek v. Pulaski Township, 828 A.2d 1164, 1170 (Pa. Commw. 2003), appeal denied, 579 Pa. 706, 857 A.2d 681 (2004). Constitutional challenges may be raised for the first time on appeal to a court of common pleas from a local agency decision. Newcomer v. Civil Service Commission of Fairchance Borough, 100 Pa. Commw. 559, 563, 515 A.2d 108, 110 (1986).

An ordinance is unconstitutionally vague if it fails to provide reasonable notice of the conduct prohibited by law. Commonwealth v. Asamoah, 809 A.2d 943, 946 (Pa. Super. 2002); Commonwealth v. Gonzalez, 403 Pa. Super. 157, 165, 588 A.2d 528, 532 (1991); Piatek, 828 A.2d at 1178. An ordinance violates vagueness requirements concerning the adequacy of notice of prohibited conduct when its terms are so indefinite that men of reasonable intelligence are left to guess at its meaning and differ as to its application. Gonzalez, 403 Pa. Super. at 165, 588 A.2d at 532; City of Philadelphia v. Cohen, 84 Pa. Commw. 200, 205, 479 A.2d 32, 36 (1984); Piatek, 828 A.2d at 1178. The danger of a vague law is that it impermissibly delegates basic policy matters to, among others, policemen and juries for the resolution on an ad hoc and subjective basis, with the attendant risks of arbitrary and discriminatory application. Commonwealth v. Cotto, 561 Pa. 32, 37-38, 753 A.2d 217, 220 (2000). However, the constitutional prohibition against vagueness does not invalidate every statute which could have been drafted with greater precision. Due process requires only that the law give sufficient warning so that individuals may conform their conduct so as to avoid that which the law forbids. Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243 (1975); Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190 (1973).

In the case sub judice, the revocation of appellants’ license is based upon a violation of section 18 of the ordinance, which states that “a sexually orientated business shall be closed at all times on Sundays and legal federal or state recognized holidays.” (Pulaski Township Ordinance section 18.) Appellants argue that neither section 18 (entitled “Hours of Operation”), nor the definitions section (section 2) of the ordinance, set forth a definition of state recognized holidays, leaving any reasonable person unable to determine which days are encompassed by section 18. As such, the appellants argue that the ordinance is impermissibly and unconstitutionally vague in that it: (1) does not specify the actual days or specific holidays it alleges are state recognized holidays; and (2) does not specify even where or how to identify such holidays.

Title 44 of Purdon’s Pennsylvania Statues is entitled “Legal Holidays- — Observances.” 44 P.S. §11 is subtitled, in part, “Holidays Designated,” and designates the fourteenth day of June, known as Flag Day as a designated, legally recognized holiday in the state of Pennsylvania. 44 P.S. §11. Accordingly, this court finds that Flag Day is a recognized holiday in the state of Pennsylvania.

The Pulaski Township ordinance states that “a sexually orientated business shall be closed at all times on Sundays and legal or state-recognized holidays.” 44 P.S. § 11 defines the designated holidays in the state of Pennsylvania. Therefore, this court finds that the ordinance is not unconstitutionally vague because state-recognized holidays are specifically defined by statue. The ordinance provides adequate notice of the prohibited conduct in that reasonable minds are not left to guess at its meaning. Accordingly, the appellants were given reasonable and adequate notice of the holidays recognized in the Commonwealth of Pennsylvania.

In the evidence submitted to the board of supervisors, Adultland admitted to being open for business and conducting business on Flag Day, June 14, 2006. Proof of intent is not required to show a violation of section 18 of the ordinance. Rather, a violation is proven by presenting substantial evidence that Adultland was open for business and conducting business on Flag Day. Adult-land’s only defense was that it was not aware that Flag Day is a recognized holiday in the state of Pennsylvania. The board of supervisors rejected that defense and sustained the revocation of Adultland’s license for one year.

For the reasons set forth in this opinion, this court finds that the section 18 of the ordinance is not unconstitutionally vague and that there is substantial evidence to sustain the board’s decision to revoke appellant’s license. Therefore, appellant’s appeal of the decision of the Pulaski Township Board of Supervisors shall be denied.

ORDER

And now, July 10, 2007, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered, adjudged and decreed that the appeal from the decision and adjudication of the Pulaski Township Board of Supervisors dated September 11,2006, of Eric Boron and Adultland XXX, is denied and the aforesaid adjudication which issued a one-year revocation of the license of appellants to operate a sexually oriented business is affirmed.


author: KUNSELMAN, P.J.,

text:
    Igo v. Re/Max International Inc.

      Daniel P. Lynch, for plaintiffs.

      Jeffrey A. Kubay, for defendants.
    July 2, 2007
   KUNSELMAN, P.J.,

This matter is before the court on preliminary objections to the plaintiffs’ amended complaint. Therein the defendants contend that the plaintiffs’ tort claims are barred by the economic loss doctrine; the breach of fiduciary duty claim fails to allege that the defendants’ failure to act solely for the plaintiffs’ benefit was a real factor in bringing about harm; and non-joinder of indispensable parties. We shall overrule the preliminary objections. The facts as alleged in the amended complaint are as follows.

The plaintiffs owned real estate in Aliquippa and entered into a listing agreement with the defendants as their agent to sell the property. The defendants presented an agreement to the plaintiffs with Buyer 1, which contained a “wipeout clause.” Under this clause, the agreement was contingent upon Buyer 1 selling their property while the plaintiffs were able to continue to seek another buyer. If a second buyer made an offer, Buyer 1 was to receive 72 hours notice thereof during which time Buyer 1 could either waive the contingency and proceed to close or release the plaintiffs from the agreement.

The defendants found Buyer 2 who made an offer. However, the defendants failed to give Buyer 1 timely notice of the offer of Buyer 2. Eventually, notice was given to Buyer 1 who then waived the contingency. Buyer 2 then filed suit against the plaintiffs and had it indexed as a lis pendens. As a result of the lis pendens, Buyer 1 refused to close on the agreement to purchase the property. The plaintiffs paid Buyer 2 a sum of money to settle the lis pendens, which was then discontinued. The plaintiffs then proceeded to convey the property to Buyer 1.

The plaintiffs’ amended complaint against the defendants sets out three causes of action: Count I, breach of fiduciary duties; Count II, professional negligence; and Count III, negligence. In all three counts, the plaintiffs claim the following damages: increase in their pro rata share of real estate taxes; increase in mortgage interest liability; the money paid to Buyer 2 in settlement of the lis pendens; attorney fees in removing the cloud on the title; and lost interest on all amounts paid.

ECONOMIC LOSS DOCTRINE

In the defendants’ first preliminary objection, they contend that all three counts must be dismissed by reason of the economic loss doctrine. This doctrine states that no cause of action exists for negligence that results solely in economic loss and was first recognized in Pennsylvania by our Superior Court in Aikens v. Baltimore & Ohio Railroad Company, 348 Pa. Super. 17, 501 A.2d 277 (1985).

We do not agree that the doctrine applies to all tort actions. Our reading of Aikens suggests that the court did not paint with such a wide brush. Aikens involved claims for lost wages by employees of a company whose plant was damaged by the defendants’ negligence in causing a train derailment. The court cited Restatement (Second) of Torts, §766 C as the general rule. That section provides as follows:

“Negligent interference with contract or prospective contractual relation. One is not liable to another for pecuniary harm not deriving from physical harm to the other, if that harm results from the actor’s negligently

“(a) causing a third person not to perform a contract with the other, or

“(b) interfering with the other’s performance of his contract or making the performance more expensive or burdensome, or

“(c) interfering with the other’s acquiring a contractual relation with a third person.” Restatement (Second) Torts, §766 C.

The court then said that recovery for purely economic loss caused by tortious interference with a contract or economic advantage is not permitted unless the tortious interference was intentional or involved parties in a special relationship. In so stating, the court expressed two concerns: (1) the tortfeasor has no knowledge of the contract or prospective relation and thus no reason to forsee harm to the plaintiff; and (2) allowing a recovery would place an undue burden upon industrial freedom of action and disproportion between the amount of damages recoverable and the tortfeasor’s fault. These two concerns were echoed by the court in Adams v. Copper Beach Townhome Communities L.P., 816 A.2d 301, 307 (Pa. Super 2003).

In the case at bar, there is a special relationship between the plaintiffs and the defendants, and so the defendants had reason to forsee harm to the plaintiffs. Moreover, this dispute is between parties who had direct dealings with each other. Therefore, the concerns of the Aiken court that the door would be open to every person in the economic chain to make a claim and thereby burden our economic system is not a concern in the case at bar. For these reasons, the economic loss doctrine does not apply and the first preliminary objection will be overruled.

BREACH OF FIDUCIARY DUTY

The defendants’, preliminary objection to this count claims that the plaintiffs have failed to allege the elements of an action for breach of fiduciary duty. We have examined the complaint and are satisfied that sufficient facts are alleged to satisfy the elements of that tort. Some of the damages alleged may not be recoverable but that does not require dismissal of the count. The defendants further complain that the plaintiffs have not alleged the breach of fiduciary duty was “the real factor” in causing the alleged harm. Causation is a conclusion of law. Only material facts are to be pleaded. Pa.R.C.P. 1019(a). Therefore, we will overrule the preliminary objections to that count.

NON-JOINDER OF NECESSARY PARTY

The defendants contend that both Buyers 1 and 2 are necessary parties to this litigation. We disagree. Indispensable parties are those whose rights are so connected to the claims of the litigants, that no decree can be made without impairing those rights. If no relief is sought against such a party or the party’s rights would not be prejudiced by any decision, the party is not indispensable. Grimme Combustion Inc. v. Mergentime Corporation, 406 Pa. Super. 620, 629, 595 A.2d 77, 81 (1991), appeal denied, 530 Pa. 644, 607 A .2d 254 (1992).

We are not persuaded by the defendants’ argument that either Buyer 1 or Buyer 2 have any rights at this time which are so connected to the claims in this case that no decree can be made without impairing those rights. Consequently, they are not indispensable parties and need not be joined in this litigation.

An appropriate order is attached.

ORDER

For the reasons set forth in the attached opinion, the preliminary objections filed on behalf of the defendants are overruled. The defendants are granted leave to file a responsive pleading within 30 days.


author: HOOVER, J,

text:
    Commonwealth v. Floyd

      John C. Baer, for Commonwealth.

      Joseph C. McGraw, for defendant.
    March 28, 2007
   HOOVER, J,

This appeal by the Commonwealth follows the trial court’s grant of the pretrial motion of Michael A. Floyd to suppress evidence. For the reasons set forth herein, the grant of the defendant’s motion to suppress should be affirmed.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

On June 5, 2006, defendant was charged with attempted criminal homicide, robbery, aggravated assault, flight to avoid apprehension, and unlawful possession of drug paraphernalia. The case was set for trial to begin on October 9, 2006. The trial was then rescheduled to begin on October 31, 2006. On October 30, 2006, the defendant filed a motion to suppress. The court scheduled and conducted a suppression hearing on October 31,2006 to take evidence relevant to the defendant’s motion. At the conclusion of the evidence and the argument of counsel, we granted the motion to suppress.

The record and the facts as adduced at the hearing reflect the following: The probable cause affidavit in this case states that the victim, Derrick Jackson, was in a bar located on 19th Street in the City of Flarrisburg on May 15, 2006. According to the affidavit, while the victim was at the rear of the bar, the defendant came up behind him, turned toward him, and plunged a knife/stabbed him in the stomach/chest area and took the victim’s white gold rope necklace, the victim’s $800 to $1,000 in cash, and the victim’s illegal narcotics. On May 28,2006, the victim came to the Flarrisburg Police Department and positively identified the defendant as his assailant. A warrant was issued for the defendant Michael Floyd’s arrest.

For approximately six months prior to his arrest on June 5, 2006, the defendant lived at 436 South 14th Street. (Notes of testimony at suppression hearing, October 31,2006, at 11 (hereinafter, “N.T.”).) The defendant testified that he stayed there because he had nowhere else to go; he acknowledged that he did not pay rent or have permission to stay there, but saw mail which indicated that the house was in foreclosure. (N.T. at 12, 14, 16.) He testified that there were no notices on the building which indicated that it was abandoned, condemned, or uninhabitable. (N.T. at 14.) The defendant testified that he alone had a key to the house, that there was working electricity, a television, lamp, stove, microwave and refrigerator. (N.T. at 12.) At one point, the defendant had phone service at that address in his name, which was later disconnected because he did not pay the bill. (N.T. at 18.) The defendant kept his clothing there. (N.T. at 12.) The defendant came and went as he pleased, and invited friends into the house. (N.T. at 13.)

On June 5, 2006, Detective John O’Connor of the Harrisburg City Police Department was investigating this matter, and had information that defendant lived in the area of the 400 block of South 14th Street. (N.T. at 32.) Officer O’Connor saw a person he recognized as Michael Floyd. Id. That individual began running and a foot chase ensued. Id. The defendant was eventually caught by Deputy Sheriff William Snyder in the 400 block of South 14th Street. Michael Floyd was then transported to the Harrisburg police station booking room. (N.T. at 33.) Officer O’Connor spoke to several individuals who did not wish to become involved and refused to give their names. They identified 436 South 14th Street as the address where Michael Floyd lived. (N.T. at 33.)

Officer O’Connor then contacted the communications center to check the address. He was told that the property was a vacant structure owned by American Home Mortgage Services of Irving, Texas. (N.T. at 34.) The officer testified that the building appeared unkempt. (N.T. at 34.)

Officer O’Connor testified that he knocked at the door of the address by pounding on the door with his fist. (N.T. at 36.) He yelled to see if anyone was inside. (N.T. at 37.) He looked through the screen of an open front window and observed a television and lamp on. Id. Because the door was locked, Officer O’Connor then entered the house by crawling through the window. (N.T. at 38-39.) Once inside, Officer O’Connor turned off the television and lamp and in doing so found a piece of paper with Michael Floyd’s name on it. (N.T. at 39.) This piece of paper with Michael Floyd’s name on it was in plain view. Officer O’Connor exited the house and requested that officers stand by while he left to obtain a search warrant. (N.T. at 39.) This search warrant was sought to search and seize items listed on the first page of the warrant.

Officer O’Connor prepared the search warrant. In his own words, as set forth in the search warrant, the officer stated that the vacant house had a mattress, couch, and microwave oven and that it appeared to be lived in. In his own statement of probable cause to obtain search warrant presented to the Honorable John F. Cherry, the officer stated that several people “who not will [sic] to provide their names” told him that Michael Floyd lives at 436 South 14th Street. The officer returned with the signed search warrant, executed the search, and seized two crack pipes, clothing and a buck knife.

DISCUSSION

The trial court properly granted the motion to suppress evidence obtained as a result of a warrantless enfiy gained in violation of the constitutional rights of the defendant. The evidence was, therefore, improperly seized. We find the testimony of the defendant to be credible and supported by the testimony of the police officer and the language of his probable cause affidavit.

At the hearing on October 31,2006, we first considered the issue of standing. It was necessary to determine first whether the defendant possessed standing, based upon a subjective expectation of privacy, to challenge the search. We found that the evidence supported an expectation of privacy on the part of the defendant.

At argument, counsel presented several cases for the court’s consideration. We first looked to Commonwealth v. Boulware, 876 A.2d 440 (Pa. Super. 2005), in which the Superior Court outlined the defendant’s burden of making a preliminary showing of standing and expectation of privacy in seeking suppression of seized evidence. Pursuant to Boulware, “[a] defendant seeking suppression of seized evidence has the initial burden of establishing standing and a legitimate expectation of privacy in the area searched or the items seized .... An accused may demonstrate standing by presenting evidence of any one of the following four elements: (1) his presence on the premises at the time of the search and seizure; (2) a possessory interest in the evidence seized; (3) that the offense charged includes possession as an essential element; or (4) a proprietary or possessory interest in the searched premises.” Id. at 442-43. (citations omitted)

Based upon these standards, we found that the defendant presented sufficient evidence for the court to conclude that he had a subjective expectation of privacy in the premises searched. The evidence established his presence on the premises at the time of the search and a possessory interest in the evidence seized. We considered the testimony that the house was his residence, not only according to the defendant’s words, but by the language of the affidavit of probable cause filed by the police which reflected the statements of several people in the area that Michael Floyd “lived” at 436 South 14th Street. See probable cause affidavit. The presence of a lamp, working television, couch, mattress and microwave establish a subjective expectation of privacy.

We next considered the second part of the analysis of a defendant’s claim of violation of his rights under Article I, Section 8 of the Pennsylvania Constitution, that is, “whether his subjective expectation of privacy is one that society is prepared to recognize as legitimate,” despite the fact that he did not have a legal right to enter or use the building. See Commonwealth v. Peterson, 535 Pa. 492, 636 A.2d 615 (1993). “[A] defendant can establish a legitimate expectation of privacy, despite lacking a common-law interest in the real property if he demonstrates certain characteristics of ownership. Among the critical characteristics of ownership is the right to exclude others from the premises in question.” Commonwealth v. Gordon, 546 Pa. 65, 75, 683 A.2d 253, 258 (1996), citing Rakas v. Illinois, 439 U.S. 128, 143, 58 L.Ed.2d 387, 99 S.Ct. 421 (1978). Therefore, the fact that the defendant did not own or lease the premises, or that he occupied an abandoned building, does not preclude a finding of a possessory interest and a legitimate expectation of privacy. As the Pennsylvania Superior Court has explained,

“Factors to be considered in determining whether a defendant has a legitimate expectation of privacy in another person’s home include (1) possession of a key to the premises; (2) having unlimited access to the premises; (3) storing of clothing or other possessions on the premises; (4) involvement of illegal activities on the premises; (5) ability to exclude other persons from the premises; (6) expressions of a subjective expectation of privacy in the premises.” Commonwealth v. Govens, 429 Pa. Super. 464, 471, 632 A.2d 1316, 1319 (1993). (citations omitted)

The record reflects that the defendant satisfied a majority of these factors in that he had sole possession of a key to the premises, unlimited access to the premises, kept his clothing there, and expressed a subjective expectation of privacy. Under Rakas and Gordon, the defendant in the instant case satisfies the critical characteristic of ownership by the ability to exclude others from the premises, namely, maintaining a locking door to which only he possessed a key.

Further, we are not persuaded that the warrantless entry was made under exigent circumstances. Although Officer O’Connor explained that he entered the premises to turn off the television and lamp because they might constitute a fire hazard, we heard no evidence of any imminent danger of a spark or overheating justifying such a concern. See N.T. at 38.

Finally, we note upon review of all of the evidence that Officer O’Connor could have secured a search warrant based on the information initially provided to him on the date of the warrantless search. When Officer O’Connor was told by several people that Michael Floyd lived at 436 South 14th Street, the officer had every right to proceed to that address. Having information from several different people that Michael Floyd lived there but finding no one at home at that address, knowing that the defendant has just been arrested, the officer could have secured a search warrant based upon that information. We cannot overlook the fact that the probable cause affidavit provided to obtain the search warrant contains the same information available to the officer when he went to the house earlier that day without a warrant.

For all of the foregoing reasons, we properly sustained the defendant’s motion to suppress evidence seized as a result of the search warrant marked as Commonwealth exhibit no. 1.

      . The Supreme Court in Gordon stated at n.8, “[we] do not decide whether under other circumstances an individual living in an abandoned structure might demonstrate a legitimate expectation of privacy.”


author: KISTLER, J.,

text:
    Haas v. Mateer

      Michael S. Bloom, for plaintiffs.

      Donna L. Rae and Mary E. Dixon, for defendants.
    May 1, 2007
   KISTLER, J.,

Presently before this court is the motion for summary judgment filed by Dr. John E. Mateer et al (defendants). For the reasons set forth below, this court denies the defendants’ motion.

BACKGROUND

Martha J. Sealy, the decedent, was murdered on June 12,2003, by her husband, Robert G. Sealy. On behalf of her estate, Mrs. Sealy’s adult children initiated this medical malpractice action against Dr. John E. Mateer based on his alleged mismanagement of Mr. Sealy’s Parkinson’s disease medication. Plaintiffs contend that Dr. Mateer overmedicated their father with Mirapex, causing him to kill his wife. Dr. Mateer, a neurologist, was Mr. Sealy’s treating physician for approximately 17 years. The action also includes a claim for vicarious liability against Geisinger Medical Group.

Plaintiffs contend that the prescription drug, Mirapex, was responsible for the behavioral changes in Mr. Sealy. The expert report of Enrico Fazzini D.O., explains that an increased dosage of Mirapex may cause “aberrant behavior.” He opines that this particular behavior was exhibited by Mr. Sealy, and, ultimately, was the reason Mr. Sealy murdered his wife.

Defendants disagree and deny that the prescribed medication caused any such “aberrant behavior.” Defendants argue that Mrs. Sealy remained in a well-documented abusive relationship with Mr. Sealy at her own risk, which ended in her tragic death. Based on this premise, defendants have moved for summary judgment and request that this court dismiss all counts against them.

DISCUSSION

Set forth below is the well-established standard upon which a motion for summary judgment is governed in Pennsylvania:

“Pennsylvania law provides that summary judgment may be granted only in those cases in which the record clearly shows that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. The moving party has the burden of proving that no genuine issues of material fact exist. In determining whether to grant summary judgment, the trial court must view the record in the light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Thus, summary judgment is proper only when the uncontroversial allegations in the pleadings, depositions, answers to interrogatories, admissions of record and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. In sum, only when the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment.” Barnish v. KWI Building Company, 916 A.2d 642, 645 (Pa. Super. 2007).

Defendants present four arguments for the granting of summary judgment of this case, dealing with the following topics: (1) lack of duty, (2) assumption of the risk, (3) proximate cause, and (4) Frye. The court will address each issue separately and in the order presented above.

I. Lack of Duty

In their brief, defendants rely heavily on the reasoning set forth in Leonard v. Latrobe Area Hospital, 425 Pa. Super. 540, 625 A.2d 1228 (1993), to argue the nonexistence of duty between Dr. Mateer and Mrs. Sealy. As a result, the court has evaluated the case and now determines that the law set forth in Leonard is not dispositive of the issue presented here.

In Leonard, the doctors were made aware, through the plaintiffs, that decedent’s husband had been threatening and abusive in the past. Id. at 542, 625 A.2d at 1229. Two months after his release from the psychiatric unit, the husband shot and killed his wife. Id. The plaintiffs brought suit against the treating psychiatrist, Dr. George E. Mamo, and Latrobe Hospital for failing to warn the decedent of her husband’s dangerous propensities. Id. However, the husband never told Dr. Mamo of his intention to kill his wife. Accordingly, upon a motion for summary judgment, the trial court dismissed the case because Pennsylvania courts have refused to impose on a doctor the “duty to warn” a third party of the patient’s violent tendencies unless the patient has made it known to his doctor that he wishes to harm a specific or readily identifiable person. Id. at 543-44, 625 A.2d at 1231-32. The Superior Court affirmed the lower court’s decision. Id. at 543, 625 A.2d at 1232.

Here, plaintiffs made it clear during oral arguments and in their brief that this case is not a “duty to warn” case, and the “duty to warn” has never been the basis of their cause of action. See plaintiffs’ brief in opposition to defendants’ motion for summary judgment, pp. 5-6. The basis of this claim is that defendant, Dr. Mateer, mismanaged the treatment of the patient by prescribing a far higher dosage than that recommended by the manufacturer and the PDR. As a result, the patient exhibited “aberrant behavior” in the form of aggression and subsequently killed his wife. Thus, Leonard does not apply because this is not a “duty to warn” situation, and it would be unfounded to dismiss the present case based on inapplicable law.

However, the court finds that a “duty” may exist between Dr. Mateer and Mrs. Sealy. The appellate courts have used the Restatement (Second) of Torts, §324A, to find the existence of a duty to third parties in contagious disease cases. See DiMarco v. Lynch Homes—Chester County Inc., 525 Pa. 558, 583 A.2d 422 (1990). This court finds the same section useful with the facts presented here. The only difference is that this court relies on subsection (a) of section 324A, rather than subsection (c), which is relied upon for the contagious disease litigation. Section 324A reads as follows:

“Section 324A. Liability to third person for negligent performance of undertaking.

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as. necessary for the protection of a third person or his things, is subj ect to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

“(a) his failure to exercise reasonable care increases the risk of such harm, or

“(b) he has undertaken to perform a duty owed by the other to the third person, or

“(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.” Restatement (Second) of Torts, §324A. (emphasis added)

In this case, there exists a question of material fact as to whether Dr. Mateer prescribed medicine to Mr. Sealy, which Dr. Mateer “should recognize as necessary for the protection of a third person.” There is evidence in plaintiffs ’ expert report, submitted by Dr. Enrico Fazzini, that Dr. Mateer should have recognized Mr. Sealy’s aberrant behavior. Further, the evidence suggests that, since Dr. Mateer did not recognize the symptoms, the upward adjustments in Mr. Sealy’s dosage increased the risk of harm to Mrs. Sealy.

Accordingly, this court finds that Dr. Mateer may have owed a duty to Mrs. Sealy based on the section set forth above. Because reasonable minds may differ regarding the existence of a duty, this court must deny defendants’ motion and leave this determination for the jury.

II. Assumption of the Risk

Defendants argue that summary judgment should be granted because Mrs. Sealy voluntarily assumed the risk of harm by living with her abusive husband. As such, Dr. Mateer “owed no duty to protect her from the risk which she voluntarily chose to encounter.” See defendants’ brief in support of the motion for summary judgment, p. 34.

“The question of whether the plaintiff has assumed the risk of his injuries should not be decided as a matter of law except where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition and thereby must be viewed as relieving the defendant of responsibility for his injuries.” Long v. Norriton Hydraulics Inc., 443 Pa. Super. 532, 536, 662 A.2d 1089, 1091 (1995).

Here, defendants contend that the decedent was aware of her husband’s abusive tendencies and remained in the marital home in spite of these dangerous conditions. As stated above, this court may only decide this question as a matter of law if it is “beyond question” that decedent “voluntarily and knowingly proceeded in the face of an obvious and dangerous condition”; otherwise, the decision remains for the jury to make as the finders of fact.

Although anecdotal evidence of abuse has been presented through the depositions of Mrs. Sealy’s children and in the notes of Dr. Mateer, this court does not find “beyond question” that Mrs. Sealy “voluntarily and knowingly” proceeded in the face of obvious danger. As such, defendants’ motion is denied because this issue is within the province of jury and should not be determined as a matter of law.

III. Proximate Cause

Defendants argue that summary judgment is warranted because Dr. Mateer’s alleged negligence is too remote from the harm suffered to constitute proximate cause as a matter of law. See defendants’ brief in support of the motion for summary judgment, p. 37.

“Proximate cause is a term of art denoting the point at which legal responsibility attaches for the harm to another arising out of some act of defendant,... and it may be established by evidence that the defendant’s negligent act or failure to act was a substantial factor in bringing about the plaintiff’s harm.” Little v. York County Earned Income Tax Bureau, 333 Pa. Super. 8, 15-16, 481 A.2d 1194, 1198 (1984). (internal citations omitted) “Whether in a particular case that standard has been met with respect to the element of causation is normally a question of fact for the jury; the question is to be removed from the jury’s consideration only where it is clear that reasonable minds could not differ on the issue.” Id. at 16, 481 A.2d at 1198.

In this case, defendants argue that the lapse of time between the increased dosage and the murder of Mrs. Sealy breaks the chain of causation. Although a long period of time elapsed between these two occurrences, it is not for this court to make the determination of proximate cause. This is a question of fact for the jury to decide upon hearing the evidence at trial. Reasonable minds could differ as to whether “aberrant behavior” develops over time with an increased dosage of medication, and, as such, defendants’ motion must be denied.

IV. Frye

Finally, defendants contend that Dr. Enrico Fazzini’s testimony will contain “novel scientific evidence,” and, as such, it should be analyzed under the Frye test.

“Frye only applies when a party seeks to introduce novel scientific evidence.” Trach v. Fellin, 817 A.2d 1102, 1109 (Pa. Super. 2003). (emphasis in original) “Thus, Frye does not apply every time science enters the courtroom.” Id.

In this case, the court is not convinced that Dr. Fazzini’s anticipated testimony falls under “novel” scientific evidence. Behavioral changes resulting from increased dosage of a prescription drug is far from “novel.” Furthermore, the side effects and warnings listed in the PDR indicate a change in behavior may result from the use of Mirapex. See plaintiffs’ exhibit F.

The court notes that defendants may present their own expert testimony to rebut Dr. Fazzini’s theory that Mr. Sealy was under a “Mirapex induced psychosis” at the time he killed his wife. See defendants’ exhibit T.

Accordingly, defendants’ motion is denied with regard to their Frye challenge to the anticipated expert testimony of Enrico Fazzini D.O.

ORDER

And now, May 1, 2007, defendants’ motion for summary judgment is hereby denied.


author: McGINLEY, J.,

text:
    Smith v. Acorn Management Co.

      William Kurt Malkames, for plaintiff.

      David A. Eisenberg, for defendants.
    January 2, 2007
   McGINLEY, J.,

In 1984, John Clayton Smith, the plaintiff, entered into a general partnership known as Acorn Management Company. There were five partners: Charles Smith, the plaintiff herein, John McDevitt, a defendant herein, Joseph Kibartas, Charles Muldoon, and Joseph Arnoldy. The written partnership agreement contained provisions for a managing partner and for the dissolution of the partnership upon the withdrawal or death of any partner.

The partnership agreement (and addendum executed in 1984) controlled the affairs of the partnership until the 1986 death of Joseph Kibartis gave rise to a new partnership agreement on November 2,1987. This is the last written partnership agreement.

From the inception of the partnership, Mr. Smith acted as the managing partner. The 1987 agreement provided that no single person would act as a managing partner.

In 1991, Mr. Smith filed for bankruptcy. It appears that McDevitt took over the day-to-day responsibilities for the affairs of the partnership.

McDevitt completed IRS schedule K-l (Form 1065), Partner’s Share of Income, Credits, Deductions, etc. for the years 1992 to 2001. All reported Smith to be a partner. McDevitt claims he sent copies of those forms to Smith, and Smith claims he never received them. Mc-Devitt concedes that he did not send the forms by registered mail, return receipt requested. In making a determination of credibility, we conclude that McDevitt did not send copies of those tax forms to Smith.

McDevitt also conceded that he had had no other communication with Smith about the affairs of the partnership, and did not send him annual reports or any other communication concerning the affairs of the partnership.

As part of the bankruptcy proceedings filed by Smith in 1991, Smith entered into a stipulation in 1992 that provided:

“Smith agrees to assign to VanHom, Rose and Rose P.C. all of his right, title and interest (but not his or their liabilities) in and to his partnership interest in Acorn Management Company Partnership to the extent of the partnership’s interest in Polaris Aircraft (a limited partnership). VanHorn, Rose and Rose P.C. shall not assume any obligation relative thereto and the assignment shall, at the election of VanHorn, Rose and Rose P.C. be made the subject of a charging order against Smiths’ interest therein. Smith agrees and does hereby reaffirm his debt to VanHom and Rose to the extent of the foregoing interest in Polaris. It is debtor’s intent to create a limited security interest in an exempt asset, the partnership interest, which debtor believes has little, if any valve [sic].”

The Polaris partnership, in which Acorn held a small interest, apparently did have value that became apparent when, in 2001, the asset of the Polaris partnership was sold for a substantial cash sum. Defendant McDevitt knew of the sale, but made no effort to advise Smith about the sale. John McDevitt, without any notice to Smith, distributed Smith’s share of the proceeds to a third party pursuant to the stipulation and assignment that Smith had signed in 1992. McDevitt did not retain any portion of the proceeds to cover Smith’s substantial tax liabilities occurring as a result of the sale, nor did he give Smith an opportunity to attempt to do so.

Smith, not being provided annual accountings from the partnership, nor copies of federal tax filings, was not aware of the sale of the Polaris asset until 2003, when he received a deficiency notice from the IRS for taxes and penalties on his share of the proceeds from the sale of the assets in the Polaris Aircraft Ltd. partnership.

Mr. Smith contends that by virtue of the 1992 stipulation, he had conveyed his partnership interest in toto to VanHorn, Rose and Rose P.C. and seeks a determination of the court that he was not a partner in Acorn when the Polaris interest was sold. The defendants contend that Smith conveyed merely a “security interest” in an asset of the Acorn partnership, the Polaris Aircraft Limited partnership, and that he still continued to be a partner in Acorn.

We do not agree with the plaintiff that the stipulation conveyed his partnership interest, or that the stipulation removed him as a partner in Acorn. The literal language of the stipulation merely conveys his interest in assets (but not liabilities) of the Acorn partnership. Furthermore, the addendum executed in 1987 provided a specific procedure for withdrawal from the partnership, including 30 days prior written notice of intent. These steps were not taken by Mr. Smith. Because Smith failed to effectively end his partnership relationship, he remained a partner, and we deny his request for a declaration to the contrary.

The remaining question is whether the partnership and defendant McDevitt met their fiduciary obligations to partner Smith. What were the fiduciary obligations?

Both plaintiff and defendant ceded the managing responsibilities of the partnership to McDevitt. However, the 1987 agreement provided that there was no managing partner. Because there was no evidence of specific modification of that provision, we do not apply the law as to the duties of a managing partner. Instead, we refer to the duties of a general partner.

The duties are set forth in the agreements, and also in the Pennsylvania statute.

u15 Pa.C.S. §8331 — Rules determining rights and duties of partners.

“(1) Each partner shall be repaid his contributions, whether by way of capital or advances to the partnership property, and share equally in the profits and surplus remaining after all liabilities, including those to partners, are satisfied and must contribute towards the losses, whether of capital or otherwise, sustained by the partnership, according to his share in the profits.

“(2) The partnership must indemnify every partner in respect of payments made and personal liabilities reasonably incurred by him in the ordinary and proper conduct of its business or for the preservation of its business or property.

“(3) A partner who, in aid of the partnership, makes any payment or advance beyond the amount of capital which he agreed to contribute, shall be paid interest from the date of the payment or advance.

“(4) A partner shall receive interest on the capital contributed by him only from the date when repayment should be made.

“(5) All partners have equal rights in the management and conduct of the partnership business, (emphasis supplied)

“(6) No partner is entitled to remuneration for acting in the partnership business in winding up the partnership affairs.

“(7) No person can become a member of a partnership without the consent of all the partners.

“(8) Any difference arising as to ordinary matters connected with the partnership business may be decided by a majority of the partners but no act in contravention of any agreement between the partners may be done rightfully without the consent of all the partners.”

We have italicized section 5, which provides that all partners have equal rights in the partnership management.

Although Smith had transferred his interest in assets in the Polaris partnership, he had not transferred or surrendered his rights to participate in the Acorn partnership.

The right to participate in management is also provided for as follows:

“15 Pa.C.S. §8341 — The property rights of a partner are:

“(1) His rights in specific partnership property.

“(2) His interest in the partnership.

“(3) His right to participate in the management.”

McDevitt concedes he did not send Smith annual reports, and we find that he did not send him copies of the annual tax returns, which communications are mandated by the nature of the partnership relationship. He did not consult or advise that the asset of the Polaris partnership was sold. He disbursed Smith’s funds to a third party without notice to Smith. He made no effort to protect Smith from, or warn Smith about, unanticipated tax liability arising from the affairs of the partnership. We therefore conclude that McDevitt violated Smith’s partnership property rights.

Having so concluded, we then proceed to fashion a remedy.

“15 Pa.C.S. §8334(a) — General rule.

“Every partner must account to the partnership for any benefit and hold as trustee for it any profits derived by him without the consent of the other partners from any transaction connected with the formation, conduct or liquidation of the partnership or from any use by him of its property.

“15 Pa.C.S. §8335 — Right of partner to an account.

“Any partner shall have the right to a formal account as to the partnership affairs:

“(1) If he is wrongfully excluded from the partnership business or possession of its property by his co-partners.

“(2) If the right exists under the terms of any agreement.

“(3) As provided by section 8334 (relating to partner accountable as fiduciary).

“(4) Whenever other circumstances render it just and reasonable.”

The difficulty presented is that McDevitt, while violating Smith’s right to participate and remain informed of the affairs of the partnership, did not personally gain any financial benefit from his careless or malicious indifference to Smith’s rights. We are unable to say that McDevitt himself improved his own financial situation by the mistreatment of Smith’s.

Nonetheless, Smith’s injured rights as a partner need redress, inasmuch as the injury was caused by McDevitt’s complete disregard. Greed is not the only motive for injury to a partner, and money not the only gain.

In Clement v. Clement, 436 Pa. 466, 469, 260 A.2d 728, 729 (1970), the Supreme Court examined the nature of the responsibilities of a partner.

“This concept of the partnership entity was expressed most ably by Mr. Justice, then Judge, Cardozo in Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 62 A.L.R. 1 (1928):

‘“Joint adventurers, like co-partners, owe to one another, while the enterprise continues, the duty of the finest loyalty. Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the marketplace. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the “disintegrating erosion” of particular exceptions . . . Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court.’ 249 N.Y. at 463-64, 164 N.E. at 546.”

Therefore, the equitable remedy appropriate to this case is that McDevitt should be responsible for the indebtedness Smith now suffers, since McDevitt permitted him to incur the indebtedness without notice.

ORDER

And now, January 2,2007, after hearings on March 8, 2006 and May 1, 2006, and after consideration of the briefs of counsel filed May 25, 2006 and June 6, 2006, it is ordered that the courts finds in favor of the plaintiff John Clayton Smith and against the defendant John McDevitt only in the sum of $27,660, plus interest and penalties as imposed by the Internal Revenue Service until such time as this judgment is satisfied.

It is further ordered that the court finds in favor of the defendant Acorn Management Company and against the plaintiff John Clayton Smith.

It is further ordered that on the plaintiff’s request for a declaration that plaintiff’s partnership in Acorn Management Company ended in 1992, the request is denied.


author: DOHANICH, J.,

text:
    Metz v. Metz

      Max C. Feldman, for plaintiff.

      Theresa Ferris-Dukovich, for defendant.
    April 13, 2007
   DOHANICH, J.,

The plaintiff/father, Keith A. Metz, has filed exceptions to the proposed order entered on August 8,2005, affirming the previous orders of September 22, 2004, and April 5, 2005, awarding primary physical custody of the parties’ son, J.M., to the defendant/mother, Tammy M. Metz, and partial custody to the father.

This action was initially commenced by the father with the filing of a complaint in divorce on August 2, 2004, by which he sought a divorce and equitable distribution of marital property. To said complaint, the mother, on August 10, 2004, filed an answer and counterclaim, including a count for custody of the parties’ minor child. On August 12, 2004, the mother filed a petition for exclusive possession of the marital residence, for which the court granted her interim relief and scheduled a hearing for August 17, 2004. At the time scheduled for the hearing, the parties entered into and the court issued a consent order continuing, in effect, exclusive possession of the marital residence by the mother.

On August 17, 2004, the mother filed a petition for custody and the father filed a counterclaim for custody. On said date, the father also filed an emergency petition for special relief, alleging that the mother was exposing the child to individuals she was dating, and seeking an award of interim custody, which was denied by the court. A custody conference was scheduled for September 1, 2004, and rescheduled by consent of the parties to September 15, 2004. Following the custody conference, a proposed order was entered on September 22, 2004, which granted primary physical custody of the child to the mother and awarded partial custody to the father every other weekend from Friday at 6 p.m. until Sunday at 6 p.m., and on Tuesday and Thursday from 5 p.m. until 8:30 p.m. during the weeks that the father did not exercise weekend visitation. The proposed order also provided for the sharing of holidays and summer vacation, and further directed the parties not to disparage each other or discuss custody issues in the presence of the child. Both parties were ordered to complete the trans-parenting seminar through Catholic Charities.

Exceptions to said proposed order were filed by the father on October 4, 2004, alleging that the order was not in the child’s best interest and that the father had been the primary caretaker prior to separation of the parties. The father, on November 30, 2004, filed a petition for contempt averring that the mother was preventing telephone contact by the father with the child. The court scheduled both a pretrial conference on the father’s exceptions and a contempt hearing on the father’s petition for February 11, 2005. Following said pretrial conference, at the request of the parties, the court scheduled a second pretrial conference for April 5,2005. As a result of the second pretrial conference, the court entered an order on April 5,2005, establishing the telephone contact time for the father, providing a location for the exchange of the child, dismissing the father’s contempt petition and entering the September 22, 2004 order as a final order.

On July 19,2005, the father filed the instant modification petition, the basis of which was that J.M. should continue to reside in Hopewell Township and attend the Hopewell Area School District. A custody conference was conducted on August 3, 2005, following which a proposed order was entered on August 8,2005, providing that the previous orders of September 22,2004 and April 5,2005, remain in effect without modification. From this proposed order, the father filed exceptions alleging that the order was not in the child’s best interest and the custody officer failed to fully consider all the evidence.

By order of September 12, 2005, the court scheduled a pretrial conference for November 9, 2005, on the father’s exceptions. A second pretrial conference was scheduled by order of December 5, 2005, to be held on February 22, 2006, with the trial scheduled for March 23, 2006. On December 5, 2005, the court also entered an order by agreement of the parties to have a psychological evaluation of the child and the parents conducted by Mark King, Ph.D. A consent order was issued on February 22, 2006, rescheduling the pretrial conference to May 2,2006, and the trial to May 16,2006, due to the psychological evaluation having not been completed. The pretrial conference was again rescheduled by order of April 27, 2006, to June 5, 2006, and the trial was rescheduled to June 29, 2006, because Dr. King required additional time to complete his report.

The father filed a petition for special relief on May 16, 2006, for which the court issued an order directing that the mother’s daughter by a prior marriage and the parties’ son be made available for interview by Dr. King. A motion to continue the trial was presented by the father on June 22,2006, by reason of the unavailability of Dr. King, and the trial was rescheduled to August 10, 2006. The court again continued the trial at the request of new counsel for the mother by order dated August 3, 2006, to October 19,2006. The court, sua sponte, rescheduled the trial to October 24, 2006, at which time both parties were present with counsel and presented evidence. Said healing was not concluded and subsequently resumed on November 20, 2006, and February 26, 2007, when the proceedings were completed.

FINDINGS OF FACT

(1) The father, Keith A. Metz, is 37 years of age and resides alone in Hopewell Township, Beaver County, Pennsylvania.

(2) The father has resided at his present address since July 1, 2005.

(3) The father’s residence is a condominium consisting of two bedrooms, a kitchen, a dining room, a living room and a basement containing 1,100 square feet.

(4) The father is a high school graduate who also attended trade school and has earned a certificate as a machine shop technician.

(5) The father is employed with R & T Machine in Ambridge, Pennsylvania, as a machinist, where he has worked for approximately 12 years and presently earns $21 per hour.

(6) The father’s hours of employment are from 8 a.m. until 4:30 p.m., Monday through Friday.

(7) Until June 2005, the father’s employer provided health insurance for the entire family; however, the father’s employer, due to a substantial increase in cost, currently carries health insurance only for the father.

(8) The father is presently in good health.

(9) The father has failed to complete the transparenting seminar as required by the proposed order.

(10) The father’s mother, D.M., resides in Kennedy Township, Allegheny County, Pennsylvania.

(11) The father’s father lives in Erie, Pennsylvania.

(12) The mother, Tammy M. Metz, age 37, resides in Ohioville, Beaver County, Pennsylvania.

(13) The mother has resided with the parties’ minor son, J.M., at said address since June 2005.

(14) When relocating to her current residence with J.M., the mother failed to advise the father of her new address; the father learned of the relocation through the parties’ son.

(15) Since the mother’s relocation to Ohioville, the parties have mutually agreed that the custody exchange take place at the Midland Post Office in Midland, Pennsylvania.

(16) The mother’s current residence is leased from her landlord and consists of a single-family dwelling composed of two bedrooms, a kitchen, a living room, a bathroom and a laundry room; attached to the residence as a separate unit is an efficiency apartment in which the landlord occasionally resides.

(17) The mother became acquainted with the landlord in her capacity as a real estate agent in the transaction by which he purchased the real estate in which the mother and J.M. presently reside.

(18) The mother denies a romantic involvement with the landlord.

(19) The mother has established a romantic relationship with a male individual who resides in Pittsburgh, Pennsylvania.

(20)The male individual and the landlord were involved in a physical altercation on October 12, 2006, resulting in the landlord being charged with assault.

(21)In December 2005, the mother’s male companion was charged with harassment for posting offensive electronic mailings regarding the father.

(22)The mother is a high school graduate who was trained in cosmetology and later obtained a license to sell real estate.

(23) The mother previously worked as a hair stylist and as a real estate agent.

(24) The mother is presently unemployed and has filed for Social Security disability on the basis of a neck injury sustained in an automobile accident and for which she is prescribed medication.

(25) The sole source of income for the mother is the support paid by the father and the receipt of food stamps, a medical card and assistance with housing.

(26) Pursuant to the order entered February 15, 2007, at case no. 846 DR 04, the father is obligated to make payment to the mother of $598 per month as spousal support and $650 per month as child support, for a total of $ 1,248 per month, based upon the father’s net monthly income of $2,642 and the mother’s net monthly income of $0.

(27) The divorce action between the parties remains pending.

(28) The mother completed the transparenting seminar through Catholic Charities on February 2 and 16, 2005, as required by the proposed order.

(29) The mother’s mother lives in Crafton, Allegheny County, Pennsylvania.

(30) The mother is the parent of a daughter, L.F., age 18 (date of birth: November 24, 1988), by her previous marriage to S.F.

(31) L.F. resided with the mother until August 2004, when she relocated to live with her father in McKees Rocks, Allegheny County, Pennsylvania.

(32) L.F. presently attends Sto-Rox High School where she is enrolled in the twelfth grade as an honor student; she is also presently employed.

(33) L.F. currently resides alone in her own apartment.

(34) The mother and L.F. presently maintain a close relationship.

(35) The parties were married on May 6, 1994.

(36) This marriage is the first for the father and the second for the mother.

(37) One child was bom of this marriage — J.M., age 13 (date of birth: March 9, 1994).

(38) At the time of J.M.’s birth, the mother was married to her first husband, S.F., which marriage survived for one and one-half years and concluded in a divorce.

(39) J.M. is enrolled in the seventh grade at Western Beaver School District, where he is in his second year of attendance.

(40) J.M. previously attended the Hopewell Area School District from kindergarten through the fifth grade.

(41) J.M. has experienced academic difficulties, scoring grades in the average to below average range; however, he has shown improvement in the most recent grading period from October 31,2006, through January 19, 2007.

(42) J.M. has made a good adjustment in the Western Beaver School District in his relationship with his peers and teachers, and he has not been the subject of any discipline in the school setting.

(43) J.M. continues to participate in baseball and football in the Hopewell Township area and maintains relationships with his peers from his former school and neighborhood.

(44) J.M. attends religious services with his mother at the Assembly of God Church and is active in bible study each Wednesday from 3:30 p.m. until 8 p.m.

(45) J.M. maintains a regular relationship with his paternal grandmother.

(46) The parties, together with their son J.M., and the mother’s daughter, L.F., resided as a family at the former marital residence located in Hopewell Township, Beaver County, Pennsylvania, from March 1997, through April 2004.

(47) The parties initially separated in April 2004, reunited during the period of the mother’s surgery, and finally separated in July 2004.

(48) The father returned to the marital residence on August 6, 2004, during which an argument ensued between the parties and for which the police were summoned, all in the presence of J.M.

(49) The August 6, 2004 incident resulted in the mother filing (1) a petition for protection from abuse against the father at case no. 70298 of 2004, which was denied on August 9,2004, and (2) a petition for exclusive possession of the marital residence on August 12, 2004.

(50) From July 2004 through July 2005, the father resided with his mother.

(51) The father claimed that he returned to reside in Hopewell Township in order that J.M. could remain in the Hopewell Area School District and because J.M. indicated that he wanted to reside in Hopewell Township to continue his relationships with his friends.

(52) The mother’s daughter, L.F., relocated from the former marital residence in August 2004, to live with her father, S.F., in McKees Rocks, Pennsylvania.

(53) The father financially assisted S.F. with payment of counsel fees for the purpose of presenting a petition to transfer custody of L.F. from the mother to L.F.’s father, which was submitted to the court on August 17, 2004, the same date that the father filed a petition for emergency relief requesting an award of interim custody of J.M.

(54) Counsel for the father also represented L.F.’s father, S.F.

(55) On August 15, 2004, the father, L.F.’s father and her stepmother were all present when L.F. was asked to prepare a handwritten letter expressing her desire to reside with her father prior to the presentation of the custody petition by L.F.’s father.

(56) The mother and J.M. continued to reside in the former marital residence until February 2005, when it was sold.

(57) From February 2005, through June 2005, the mother and J.M. resided in Clinton, Beaver County, Pennsylvania, which was located within the Hopewell Area School District, and which permitted J.M. to complete the school year in Hopewell.

(58)Since June 2005, the mother and J.M. have resided at their current address in Ohioville, Pennsylvania.

(59)Prior to relocating, the mother sought to procure a residence within the Hopewell Area School District in order for J.M. to continue his education within the same school system; however, she alleges that she was unable to obtain lodging in the area of the school district within her financial means.

(60)On December 19,2003, the parties were involved in a physical altercation in the presence of J.M. to which the police responded, resulting in criminal charges of simple assault, recklessly endangering another person and disorderly conduct being filed against the father, and for which he was incarcerated.

(61) The charges filed against the father were subsequently dismissed when the mother failed to appear to testify against the father and the parties reconciled.

(62) Subsequent to the parties’ separation in the summer of 2004, the parties were involved in a verbal altercation at an all-star baseball game in which J.M. was to participate, resulting in the mother removing J.M. from the game and departing from the area.

(63) The above argument also involved the father’s mother, on whose behalf the father filed charges against the mother, which were subsequently dismissed when the father’s mother failed to appear for the hearing.

(64) Following the separation, the father claimed that the mother prevented him from visiting with J.M. for a period of 35 days.

(65) Prior to the custody conference, the parties had established a weekend visitation schedule for the father.

(66) On one such weekend, the father refused to return J.M. to the mother until the following Wednesday.

(67) From September 2004 through February 2005, the father failed to exercise the weekday visitation as provided in the original order of September 22, 2004.

(68) During the period shortly following separation, the father, during four separate telephone conversations in which the mother was requesting assistance with difficulties being experienced by J.M., used vulgar and derogatory language toward the mother.

(69) Prior to separation, both parties participated in activities with J.M., assisted him with his homework and generally provided for his well-being.

(70) Since the separation, both parents provide activities for J.M., such as swimming, riding bicycles, playing various games and shopping.

(71) The father is active with J.M. in baseball and football.

(72) Both parents have participated in parent-teacher conferences and maintain contact with school representatives to assist J.M. academically.

(73) The parties rarely communicate directly or on the telephone and have resorted solely to electronic mail to contact one another.

(74) The father has refused to provide the mother with his telephone number.

(75) In March, April and May 2006, the father, the mother and J.M. were all evaluated by Dr. Mark King, who prepared a report and testified at the hearing.

DISCUSSION

The thrust of the father’s modification petition is that J.M.’s best interest would be fostered by residing in Hopewell Township and attending the Hopewell Area School District. The mother, on the other hand, asserts that the parties’ son has adjusted well to the new neighborhood and school, and therefore, the current custody arrangement should remain in effect. She, however, has indicated a willingness for J.M. to spend additional time with his father.

In addressing the father’s position, the court is guided by the provisions of the Domestic Relations Code, 23 Pa.C.S. §5303(a), which sets forth the general rule regarding custody of children, as follows:

“(1) In making an order for custody or partial custody, the court shall consider the preference of the child as well as any other factor which legitimately impacts the child’s physical, intellectual and emotional well-being.

“(2) In making an order for custody, partial custody or visitation to either parent, the court shall consider, among other factors, which parent is more likely to encourage, permit and allow frequent and continuing contact and physical access between the noncustodial parent and the child.

“(3) The court shall consider each parent and adult household member’s present and past violent or abusive conduct which may include, but is not limited to, abusive conduct as defined under the act of October 7,1976 (RL. 1090, no. 218), known as the Protection From Abuse Act.”

The paramount concern in a child custody case is the best interest of the child, based on a consideration of all factors that legitimately affect the child’s physical, intellectual, moral and spiritual well-being, and this determination is to be made on a case-by-case basis. Dranko v. Dranko, 824 A.2d 1215 (Pa. Super. 2003).

In considering a request for modification, courts are reluctant to disturb an existing custody arrangement which has satisfactorily served the best interest of the child. Dolan v. Dolan, 378 Pa. Super. 321, 548 A.2d 632 (1988). A party seeking to modify an existing custody arrangement must prove that the requested changes are in the child’s best interest. McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (1992). A modification of custody is not warranted merely because one or the other parent is unhappy with the current arrangement. Jackson v. Beck, 858 A.2d 1250 (Pa. Super. 2004).

The father suggests certain factors., to justify an award of primary custody of J.M. with him. First, the father emphasizes that J.M. resided with his parents in Hopewell Township from the time he was approximately 3 years of age until the age of 10 years, and attended the Hopewell Area School District from kindergarten through the fifth grade. As a result, J.M. was familiar with his community, formed friendships and established himself in the school district. In addition, during the period of separation, he has maintained relationships with his peers in Hopewell when visiting with his father and by continuing to participate in baseball and football. The father alleges that he relocated to Hopewell in order to accommodate J.M.’s express desire to live and attend school in Hopewell. The father claims that J.M.’s academic performance has deteriorated since attending the Western Beaver School District.

The argument made by the father that continuing primary custody with the mother would disrupt the child’s life, primarily because he must change school districts, was made in the case of Swope v. Swope, 455 Pa. Super. 587, 689 A.2d 264 (1997). The Superior Court in Swope, supra, declared that while continuity in school is an important factor and must be considered, it, like any other single factor, is not controlling. See also, Fox v. Garzilli, 875 A.2d 1104 (Pa. Super. 2005). The significance of the father’s argument is substantially diminished by the fact that J.M. has resided in Ohioville and attended school at Western Beaver School District for nearly two years. According to his teachers, he has adjusted well to his peers, teachers and school. Although he initially encountered difficulty academically, his performance has improved. In reviewing J.M.’s report cards as submitted by the parties, the father provided J.M.’s grades for the first two grading periods while in the fifth grade at Hopewell Memorial Junior High School from August 2004 through January 2005, which indicated that he was performing above average but put forth little or no effort. No information was submitted for the third and fourth grading periods for fifth grade. The mother produced J.M. ’s report card for the first two grading periods in grade seven at Western Beaver Junior Pligh School from August 2006 through January 2007, which displayed average to below average grades. Neither party presented evidence of J.M.’s grades for the 2005-2006 school year. The mother testified that she investigated the Western Beaver School District prior to relocating and found it to be smaller in size but comparable to the Hopewell Area School District in quality. The father presented no evidence to the contrary. J.M. has adapted to a new neighborhood and school and established new friendships. Requiring him to return to Hopewell Township would result in the disruption of the stability which has been achieved by the present arrangement and would be contrary to his best interest.

The father next avers that J.M. has expressed his preference in returning to Hopewell Township and the Hopewell Area School District. Although the express wishes of the child constitute an important factor that must be carefully considered in determining the child’s best interest, such desires are not controlling in custody decisions. McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (1992). The child’s preference must be based on good reasons, and the child’s maturity and intelligence must also be taken into account. McMillen v. McMillen, supra. The observations of Dr. King in this regard are very insightful. Dr. King noted that although J.M. expressed a desire to live with his father, this request was not necessarily a preference for the father over the mother, but an appeal to return to the Hopewell Area School District. Dr. King further indicated that J.M. is at an age when friends are more important than parents, and he frankly prefers to return to his friends. The mother has not denied J.M. access to his friends from their former neighborhood as is evidenced by her giving permission for him to continue to participate in athletics in Hopewell. J.M.’s stated preference is understandable. However, similar wishes of the children in Ellingsen v. Magsamen, 337 Pa. Super. 14, 486 A.2d 456 (1984), were determined by the court to lack sufficient basis to be accorded controlling weight.

The father disputes that the mother was forced to relocate to Ohioville for financial reasons. He claims that she chose her current location in order to reside with her alleged boyfriend and landlord. The father produced a copy of a joint checking account bank statement disclosing a balance of $16,801.07 as of October 30, 2004. At the time of final separation in July 2004, the parties were the owners of a savings account containing $ 11,600. The father testified that he removed $5,000 and left the balance of $6,600 for the mother. He further indicated that $1,800 remained in the parties’ checking account and available for the mother. The father also stated that the mother purchased a new vehicle after separation.

In response, the mother advised that at the time of separation the parties had agreed on an amount that the father would pay in support. The father made one payment to mother in the amount of $200. The mother therefore filed a complaint in support on July 30, 2004, which resulted in an order dated September 22, 2004, directing the father to pay support in the amount of $711 per month plus $50 per month on the arrears based upon the father’s net monthly income of $2,913 and the mother’s net monthly income of $1,500. The mother did not actually receive any support until mid-October 2004, by which time she was delinquent on her monthly expenses, including the mortgage and utilities.

The father last made a mortgage payment in July 2004. The amount of the monthly mortgage payment was $844. No mortgage payments were made from September 2004, through February 2005, when the marital residence was sold. From the proceeds of the sale of the real estate, the mother received only the sum of $1,036 as a credit on the support arrears due from the father. The mother and J.M. then relocated to the Clinton address from February through June 2005, where the rent was $550 per month, and to the Ohioville location from June 2005 to the present, where the rent was initially $500 per month and is presently $525 per month. The mother has qualified for food stamps, a medical card and housing assistance. She testified that of the $16,801.07 which was on deposit as of October 2004 in the parties’ savings account, $ 10,000 was borrowed in the form of a cash advance from Household Finance to cover her then current and delinquent expenses, since she had little or no income from the time of separation in July 2004, until the first receipt of support payments in October 2004. As for the purchase of the new automobile, the mother advised that by paying off the loan on the old vehicle and acquiring the new car, she was able to reduce her monthly payments from $328 to $271. The mother further indicated that she attempted to find a suitable residence within the Hopewell Area School District, but the monthly rentals were beyond her financial means and/or were not eligible for housing assistance. The mother also denied any romantic relationship with her landlord, although he is regularly present at the mother’s residence as the owner and as an occasional resident of the efficiency apartment attached to the home. She admits to being romantically involved with the male individual. The mother remains unable to work due to her medical conditions. She was in the position of being unable to be employed as a result of medical issues and relying solely on support payments to pay monthly expenses for herself and J.M. Through a prior association with the landlord and a familiarity of the property which she previously sold to him and which qualified for housing assistance, she made the choice to relocate. The bulk of the funds in the savings account were borrowed monies which the mother was required to use for delinquent and current expenses. The above circumstances do not indicate an intent on the part of the mother to relocate solely for the purpose of a romantic relationship.

The mother alleges that she has been, and continues to be, the primary caretaker for J.M. This assertion is certainly true since the separation of the parties. The primary caretaker doctrine requires the court to give positive consideration to the parent who has been the primary caretaker of the child in order to determine what is in the child’s best interest. Marshall v. Marshall, 814 A.2d 1226 (Pa. Super. 2002). When both parents are otherwise fit, one parent’s role as the child’s primary caretaker may be given weight as a determining factor by the court. Mumma v. Mumma, 380 Pa. Super. 18, 550 A.2d 1341 (1988). The mother has principally been responsible for J.M.’s day-to-day necessities, as well as attending to his educational, religious and medical needs. She is not employed outside the home and is available for her son at any time. The father is employed full-time working from 8 a.m. until 4:30 p.m., Monday through Friday. A parent’s work schedule may not deprive that parent of custody if suitable arrangements are made for the child’s care in the absence of the parent. Gerber v. Gerber, 337 Pa. Super. 580, 487 A.2d 413 (1985). The father’s testimony was vague in describing the provision of an appropriate caretaker for J.M. He indicated that his mother, who lives in Kennedy Township, Allegheny County, or friends would be willing to assume responsibility for supervision of J.M. when the father is unavailable. Under the circumstances of this case, the mother is entitled positive consideration as the primary caretaker of J.M.

As noted previously, the Domestic Relations Code requires the court to consider the following additional factors in a custody action: (1) which parent is more likely to encourage frequent and flexible access between the non-custodial parent and the child; and, (2) whether either parent has exhibited past and present violent or abusive conduct. After separation, both parties were guilty of withholding the child from the other. The mother failed to advise the father that she had relocated from Clinton to Ohioville and denied access to the father for approximately one month. The father thereafter refused to return J.M. following a weekend visitation after the parties had established a visitation schedule. In both situations, the parties each sought court intervention. Since the original order has been in place, both parties have complied with the custody arrangement set forth in the initial order, but there is no indication that either party has extended courtesies to the other beyond the conditions prescribed by the court. Following separation, the mother attempted to contact the father seeking assistance with problems that J.M. was experiencing, and the father’s response was to leave derogatory telephone messages on her answering machine deriding her in vulgar terms. The father also interjected himself into the custody matter between the mother and her former husband involving the mother’s daughter, L.F., by providing financial assistance to L.F.’s father for counsel fees in the filing of a custody petition on August 17, 2004, the same day that the father filed a petition for special relief regarding J.M. The father prompted L.F. to prepare a letter describing the conduct of the mother and provided L.F. with the information to insert in said correspondence for review by the court. Counsel for the father also represented S.F., the father of L.F. The father has refused to provide the mother with his telephone number and insists on communicating by use of electronic mail. The mother, on the other hand, has permitted J.M. to continue to participate in athletics in Hopewell Township and has indicated a willingness to provide additional time for J.M. to spend with his father. Dr. King advised that the mother was making a clear attempt to cooperate with the father but he did not reciprocate. Despite the filing by the father of a contempt petition in order to enforce telephone contact with J.M., who is in possession of a cellular telephone, there is little or no telephone communication between the father and his son.

The father has exhibited a history of violent physical and verbal abusive conduct toward the mother in the presence of both J.M. and L.F. Physical abuse was inflicted upon the mother on December 19, 2003, in the presence of the children and for which the father was incarcerated and charged with various criminal offenses. A verbal confrontation occurred on August 6,2004, while J.M. was present and for which the police were called. Dr. King confirmed the father’s violent behavior and indicated that the father had nothing good to say about the mother. The mother, however, portrays the father in a positive light, despite the physical and verbal abuse. Dr. King reported that the most important variable in this case is the domestic violence inflicted by the father upon the mother. The above conduct of the father does not demonstrate that the best interest of J.M. would be served in awarding him primary custody.

Dr. King declined to make a recommendation regarding custody in this case because each of the parents is very flawed in ways that hurt the child. The facts of this case make evident that the primary purpose of the parties in this custody action is to attack one another and not focus on what is in J.M.’s best interest. Dr. King advised that both parents are engaging in destructive behavior in terms of the best interest of J.M. The lack of appropriate communication between the parties is certainly detrimental to J.M. To the inquiry of how the present situation could be improved, J.M. responded that his parents should cooperate. The court notes that the mother is not completely without fault. The incident involving the paternal grandmother at the all-star baseball game in J.M.’s presence and the circumstances surrounding the mother’s boyfriend sending electronic mail degrading the father are two significant instances of the mother’s adverse behavior. Although the actions of the mother are not favorable, they do not rise to the degree of the father’s abusive conduct.

Upon careful consideration of the foregoing, the court determines that the father has not met his burden of proving that the requested modification of primary custody is in J.M.’s best interest. The court will, however, grant a modification of the summer vacation schedule to provide that each party shall exercise partial custody on an alternating weekly basis commencing with the first full week at the conclusion of the school year. This amended schedule will afford the father the opportunity to maintain regular contact with J.M. during the summer recess from school and is consistent with the mother’s offer to provide the father with additional time with the child.

The court acknowledges receipt of correspondence from counsel for the father dated March 30, 2007, indicating that the mother and J.M. will relocate from Ohio-ville to Beaver, Pennsylvania. Since neither party has submitted any evidence on the record regarding such a relocation, the court declines to consider this allegation.

Based on the foregoing, the court enters the following order:

ORDER

And now, April 13, 2007, it is hereby ordered and directed as follows:

(1) The summer and/or school vacation schedule as set forth in paragraph II.D. of the order of September 22, 2004, is amended to read as follows:

“Commencing one week after completion of the school year until one week prior to the beginning of the following school year, the parties shall alternate custody of the minor on a weekly basis. The day of the week upon which said partial custody is to begin shall be as the parties agree in the best interest of the minor.”

(2) Paragraph 2 of the order of April 5, 2005, is amended to provide that the location for the exchange of the child is the Midland Post Office, Midland, Pennsylvania.

(3) The father is directed to enroll in and complete the transparenting seminar through Catholic Charities, 1260 Brodhead Road, Monaca, Pennsylvania 15061, telephone number (724) 775-0758, and to file a certificate of completion with the prothonotary’s office within 30 days of the date of this order.

(4) In all other respects, the orders entered September 22, 2004, and April 5, 2005, shall remain in full force and effect to the extent that they are not inconsistent herewith. Copies of said orders are attached hereto for the benefit of the parties. [Not published herein.]