author: CULLEN, J.,

text:
    Commonwealth v. Ball

      Deborah L. Muzereus, for Commonwealth.

      Vincent J. Quinn, for defendant.

      May 27, 2008
   CULLEN, J.,

Before the court is the amended motion for post-conviction collateral relief filed by defendant, Terrence V. Ball. For the reasons set forth below, the amended motion will be denied.

PROCEDURAL AND FACTUAL BACKGROUND

Following the robbery of a Fulton Bank in the City of Lancaster on August 20, 2004, defendant, Terrence V. Ball, was charged with robbery, facsimile weapons of mass destruction and two counts of criminal conspiracy to commit these offenses.

On June 6, 2005, defendant was found guilty by a jury of robbery and facsimile weapons of mass destruction and not guilty of the remaining offenses.

On August 30, 2005, defendant was sentenced to a term of not less than 10 nor more than 20 years incarceration. Defendant did not file post-sentence motions or a direct appeal.

Defendant filed a timely pro se motion for post conviction collateral relief on August 16, 2006, and counsel was appointed to represent him. Counsel filed an amended motion raising various claims of ineffective assistance on the part of trial counsel.

An evidentiary hearing was held on May 1, 2007, before the Honorable Paul K. Allison. Due to Judge Allison’s unavailability, the matter was reassigned to the undersigned and a second evidentiary hearing was held on January 23 and 31, 2008. The parties have submitted briefs, and the matter is ready for disposition.

DISCUSSION

To be eligible for relief under the Post Conviction Relief Act, a defendant must satisfy the requirements of 42 Pa.C.S. §9543 which provides in pertinent part as follows:

“Section 9543 Eligibility for relief
“(a) General rule.—To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following:
“(1) That the petitioner has been convicted of a crime under the laws of the Commonwealth and is at the time relief is granted:
“(i) currently serving a sentence of imprisonment, probation, or parole for the crime;. . .
“(2) That the conviction or sentence resulted from one or more of the following: . . .
“(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. . . .
“(3) That the allegation of error has not been previously litigated or waived.
“(4) That the failure to litigate the issue prior to or during trial, during unitary review or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel.” 42 Pa.C.S. §9543(a) (2)(ü).

The defendant bears the burden of establishing by a preponderance of the evidence that his conviction resulted from one or more of the enumerated errors listed in the Act. Commonwealth v. Zook, 585 Pa. 11, 25, 887 A.2d 1218, 1226 (2005); Commonwealth v. Crawley, 541 Pa. 408, 412, 663 A.2d 676, 678 (1995). A claim is deemed to have previously been litigated where the highest appellate court, which could have reviewed the issue as a matter of right, has ruled on its merits, or the claim has been previously decided on collateral review. 42 Pa.C.S. §9544(a)(2). Furthermore, a defendant is deemed to have waived an allegation where he could have raised it, but “failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post-conviction proceeding.” 42 Pa.C.S. §9544(b).

Since defendant’s post-conviction issues involve claims of ineffective assistance of counsel, the following standards apply. The law presumes counsel was effective and, thus, the burden of proving otherwise rests with the defendant. Commonwealth v. Zook, 585 Pa. 11, 26, 887 A.2d 1218, 1227 (2005) (citing Commonwealth v. Travaglia, 541 Pa. 108, 118-19, 661 A.2d 352, 356-57 (1995)); Commonwealth v. Cousin, 585 Pa. 287, 294, 888 A.2d 710, 715 (2005). In order to establish an ineffective assistance of counsel claim, a defendant must prove by a preponderance of the evidence that “(1) the underlying claim has substantive merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) that appellant suffered prejudice as a result of that counsel’s deficient performance.” Commonwealth v. Zook, 585 Pa. 11, 26, 887 A.2d 1218, 1227 (2005) (citing Commonwealth v. Pierce, 515 Pa. 153, 158-61, 527 A.2d 973, 975-76 (1987)). See also, Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, (1984) (“First, the defendant must show that counsel’s performance was deficient . . . . Second, the defendant must show that the deficient performance prejudiced the defense.”).

To establish prejudice under the Post Conviction Relief Act, the defendant must show that, in the circumstances of the case, counsel’s ineffective assistance so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Where the defendant demonstrates that counsel’s ineffectiveness has created a reasonable probability that the outcome of the proceedings would have been different, then no reliable adjudication of guilt or innocence could have taken place. Commonwealth v. Kimball, 555 Pa. 299, 312-13, 724 A.2d 326, 333 (1999).

As fact-finder in a proceeding for post-conviction relief that is based on a claim of ineffective assistance of counsel, the credibility of witnesses remains exclusively within the province of the hearing court. Commonwealth v. Pate, 421 Pa. Super. 442, 450-51, 468 A.2d 791, 795 (1983). An appellate court, therefore, “must give great weight to the findings of a lower court concerning the credibility of witnesses in a post-conviction proceeding.” Commonwealth v. Dupert, 555 Pa. 547, 557, 725 A.2d 750, 755 (1999) (citing Common wealth v. Madison, 501 Pa. 485, 491, 462 A.2d 228, 231 (1983)).

In his first issue, defendant claims that trial counsel was ineffective for failing to move to suppress his statement on the basis that the statement was the product of defendant having been beaten by the police.

Defendant claims that he was coerced into giving a statement because he was pepper sprayed and beaten while in a holding cell in the Lancaster City Police Station. (N.T. January 31,2008, pp. 32-34,42-47.) Defendant was initially brought to the police station in the early morning hours of August 24, 2004. Detective Mummau and Sergeant Berkihiser of the Lancaster City Police initially questioned defendant for approximately one hour beginning at 7:30 a.m. (Id. at p. 6.) Defendant did not admit to the robbery and terminated the interview. He was then taken to a holding cell and told that if he wanted to speak to Detective Mummau and Sergeant Berkihiser to use the intercom in the holding cell to notify the community service aides who would in turn inform the officers. (Id.)

Defendant testified that he was asleep in his cell and woke up after being sprayed with pepper spray. (Id. at p. 32.) Defendant stated that his eyes were burning and he was blinded as a result of the spray. (Id. at pp. 33, 50.) Thereafter, defendant was beaten about the body, feet and throat by two unidentified men. (Id. at pp. 34, 45-46.) Defendant described being struck in the throat multiple times. (Id. at pp. 46-48.) Defendant claimed that the beating lasted for approximately 10 minutes and during that time his eyes were burning from the pepper spray. (Id. at p. 50.)

Defendant told the men that he would speak to the officers and sign whatever they wanted him to so that the beating would stop. (Id. at p. 35.)

After the two men left, defendant went to the sink in the cell to rinse his eyes. (Id.) Defendant testified that his eyes burned for approximately 30 to 45 minutes and that they were burning when he later talked to the officers. (Id. at p. 51.)

Sergeant Berkihiser testified that he was notified that defendant wanted to speak with him and Detective Mummau again and they removed him from the holding cell at approximately 3:19 p.m. (Id. at p. 7.) Sergeant Berkihiser did not observe anything unusual about defendant, and defendant appeared ready to speak with them. (Id. at p. 13.)

Sergeant Berkihiser did not see any indication that defendant had been beaten. Defendant did not have any blood on him or any bruises, cuts or welts. (Id. at pp. 13-14.) Defendant did not have bloodshot eyes and Sergeant Berkihiser did not see any indication that defendant had been pepper sprayed. (Id. at pp. 9, 18.) Defendant did not complain of being pepper sprayed or suffering from any injuries, and he did not ask for medical treatment. (Id. atpp. 16,18.) Defendant admitted he did not tell either detective about the beating or that he wanted medical treatment. (Id. at p. 35.)

Defendant testified that he told his trial counsel about the beating approximately a week later on August 30, 2005. (Id. at p. 37.) Trial counsel denied that defendant told him about the beating or being pepper sprayed. (N.T. January 23, 2008, pp. 7, 22.) Trial counsel stated that if he had known about the beating or pepper spray, he would have included such allegations in his motion to suppress. (Id. at p. 23.)

Where a defendant alleges trial counsel was ineffective for failing to litigate an issue on suppression, he must prove that there was a basis for suppressing the statement, trial counsel did not have a reasonable basis for failing to file a motion to suppress and that the motion would have been successful. See generally, Commonwealth v. West, 937 A.2d 516 (Pa. Super. 2007); Commonwealth v. Schroth, 495 Pa. 561, 435 A.2d 148 (1981). Trial counsel will not be found ineffective for failing to pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125 (Pa. Super. 2003).

Based on the record developed at the hearing, the court concludes that defendant has failed to present any credible evidence to sustain his claim. In resolving issues of credibility, the court has considered the demeanor of each witness, his interest in the outcome of this proceeding and the substance of the testimony and the extent to which it is supported or contradicted by other evidence. The court finds the testimony of trial counsel and Sergeant Berkihiser to be credible and defendant’s testimony to be unworthy of belief.

The court finds that defendant never informed trial counsel about any assault in the holding cell or being pepper sprayed. Since counsel was unaware of this claim, he could not be expected to include it in the suppression motion which was filed.

Defendant’s testimony varied in certain respects between the hearing on his amended motion held in May 2007, and the one held in January 2008. Despite the prolonged beating he claimed to have endured, defendant admitted he made no complaint about this assault to the detectives nor did he request medical treatment. In fact, his first comment when he got to the interrogation room was that he was hungry. (N.T. January 31,2008,p. 35. Defendant’s assertion that he remained silent about the alleged abuse because he was mad and being stubborn is not credible. (Id. at p. 51.)

Sergeant Berkihiser did not notice anything out of the ordinary in defendant’s appearance when he was brought to the interrogation room from the holding cell. Further, the booking photograph, Commonwealth exhibit 5, taken at the Lancaster City Police Station after defendant’s statement and the intake photograph taken at Lancaster County Prison, Commonwealth exhibit 6, do not show any injury to defendant’s face, throat or head.

The court concludes that this claim is completely devoid of merit and defendant is not entitled to relief.

In his second issue, defendant alleges trial counsel was ineffective for refusing to permit defendant to testify at the suppression hearing.

Both defendant and trial counsel testified as to their recollections of what occurred regarding this issue, and counsel have addressed it in their briefs. However, extended discussion of this claim is unnecessary.

The transcript of the suppression hearing held June 2, 2005, reveals what transpired when the Commonwealth rested its case.

“[Assistant District Attorney]: The Commonwealth would rest. I’d ask that the suppression motion be denied.
“[The Court]: Anything?
“[Defense Counsel]: Your honor, at this time the defense would call Terrence Ball to the stand.
“[The Defendant]: I’m not getting on the stand.
“[Defense Counsel]: Well, your honor, then the defense would rest in terms of presentation of the suppression motion.” (N.T. June 2,2005, p. 67.) (emphasis added)

Since defendant refused to testify at the suppression hearing when given the opportunity, he cannot now complain that his attorney was ineffective for not calling him as a witness. This claim is patently frivolous.

In his third issue, defendant alleges that trial counsel was ineffective in his cross-examination of a witness. Specifically, defendant asserts that trial counsel was ineffective when he asked the bank teller and robbery victim, Dianne Williams, if she could identify defendant as the perpetrator of the crime after she had not been asked to identify him on direct examination.

A claim of ineffective assistance based on the failure of defense counsel to impeach the Commonwealth’s witnesses, to elicit critical testimony or to conduct an effective cross-examination of a witness for the Commonwealth may possess arguable merit and will be viewed under the Strickland/Pierce performance and prejudice standard. See Commonwealth v. Strutt, 425 Pa. Super. 95, 624 A.2d 162 (1993); Commonwealth v. Guerrisi, 297 Pa. Super. 245, 249-50, 443 A.2d 818, 820-21 (1982). The courts, however, will not second-guess the cross-examination technique employed by defense counsel provided it was based on a strategic decision. See Commonwealth v. Thuy, 424 Pa. Super. 482, 493, 623 A.2d 327, 333 (1993).

Ms. Williams was unable to identify defendant as the perpetrator of the robbery at the preliminary hearing and was not questioned on direct examination by the Commonwealth about the identity of the robber. (N.T. January 23, 2008, pp. 8, 19-20.) She did identify photographs of the robber and the incident from the bank surveillance camera. (N.T. June 3, 2005, pp. 79-86.)

On cross-examination, trial counsel asked Ms. Williams if she could identify the robber and she said she could. (Id. at pp. 89-90.) Trial counsel then questioned her credibility and her ability to identify the perpetrator since she could not identify the robber closer to the time of the incident. (Id. at p. 90.) On redirect examination, Ms. Williams identified defendant as the perpetrator of the robbery. (Id. at pp. 90-91.) In response, defense counsel elicited that the witness had given only a limited description of the robber prior to her identification in court. (Id. at p. 94.)

At the hearing, trial counsel testified that he asked Ms. Williams if she could identify defendant because “(a)t the preliminary hearing, she couldn’t identify Mr. Ball as the one who came into the bank. On her direct examination, [the assistant district attorney] hadn’t gone into it. I figured she would give the same or similar responses that she had given at the preliminary hearing and I would bring out that she couldn’t identify Mr. Ball as the person who came into the bank.” (N.T. January 23, 2008, pp. 10-11.)

It is obvious, in hindsight, that counsel’s strategy was unsuccessful and it would have been better had counsel not asked this question. However, hindsight analysis is not the test of ineffective assistance of counsel.

Trial counsel stated that he asked Ms. Williams the question because he wanted to bring out that she could not identify the perpetrator and “was hoping that she couldn’t identify him. Say, no, I can’t identify him as the person who came in. That would kind of emphasize that.” (Id. at p. 11.)

Given the evidence against defendant summarized below, the court cannot say that counsel’s attempt to emphasize the bank teller’s inability to identify the robber lacked a reasonable strategic basis.

Defendant has also failed to establish that he was prejudiced by counsel’s action. Defendant gave police an oral statement as well as a 13-page written statement describing his participation in the robbery. (N.T. June 3,2005, pp. 166-96.) The police seized clothes matching those worn by the perpetrator from defendant’s residence, (id. at 121-24), and expert testimony linked tape found at defendant’s residence to the tape used to construct the fake bomb. (Id. at pp. 129-37.) Finally, defendant’s roommate, Alejandro Dejesus, identified defendant as the individual in the bank surveillance photographs as well as clothing, tape and the shower head missing from his residence which was used to make the fake bomb. (Id. atpp. 99-107.) Defendant also acknowledged to Mr. DeJesus that he committed the robbery. (Id. atpp. 107-10.)

In light of this evidence, there is no reasonable probability that the outcome of the trial would have been different.

In his fourth issue, defendant claims trial counsel was ineffective for failing to request a cautionary instruction pursuant to Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), in light of Ms. Williams’ identification testimony. In Commonwealth v. Kloiber, the Pennsylvania Supreme Court noted where a “witness is not in a position to clearly observe the assailant, or he is not positive as to identity, or his positive statements as to identity are weakened by qualification or by failure to identify defendant on one or more prior occasions, the accuracy of the identification is so doubtful that the court should warn the jury that the testimony as to identity must be received with caution.” Commonwealth v. Kloiber, 378 Pa. 412, 424, 106 A.2d 820, 826-27 (1954).

Defendant claims that a Kloiber instruction was necessary because Ms. Williams failed to identify defendant at the preliminary hearing and then subsequently identified him at trial. Trial counsel testified that he did not request a Kloiber instruction because he was not aware of the Kloiber decision at the time of trial. (N.T. January 23, 2008, p. 13.)

“When reviewing jury instructions for error, the charge must be read as a whole to determine whether it was fair or prejudicial.” Commonwealth v. Washington, 592 Pa. 698, 727, 927 A.2d 586, 603 (2007). (citation omitted) The court gave a general instruction with respect to the credibility of witnesses, but did not address specifically the issue of identification. (N.T. June 6, 2005, pp. 230-32.) Defendant does not contend that any part of this charge was inaccurate or unclear. Rather, he argues counsel should have requested a specific instruction dealing with Ms. Williams’ identification testimony. While defendant would have been entitled to a Kloiber charge upon request, he has failed to demonstrate that he was prejudiced by its omission. As noted above, Ms. Williams’ identification of defendant was not the only evidence linking defendant to the robbery and it was certainly not crucial to the Commonwealth’s case. The evidence against defendant was overwhelming without reference to this testimony. Defendant, therefore, is not entitled to relief.

In his fifth issue, defendant claims trial counsel was ineffective for failing to object to an improper closing statement by the assistant district attorney. Defendant claims that the Commonwealth improperly shifted the burden of proof to the defense based on the following statement, “And then he goes to Philadelphia with Jorge Cruz. The mere fact that Alejandro Dejesus didn’t see him do that is not evidence beyond a reasonable doubt of his innocence.” (N.T. June 6, 2005, p. 218.)

In determining whether a prosecutor’s closing argument is improper, the court must view it, not in isolation, but rather in the context in which it was made. Com monwealth v. Farmer, 758 A.2d 173, 178 (Pa. Super. 2000). Comments made by the prosecutor during closing argument do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury by causing them to feel such bias and hostility against the defendant that they are unable to weigh the evidence objectively and render a true verdict. Commonwealth v. Strong, 522 Pa. 445, 454, 563 A.2d 479, 483 (1989). The court will not find that a defendant is entitled to a new trial based on every unwise remark by an attorney. Commonwealth v. Carson, 590 Pa. 501, 540-41, 913 A.2d 220, 242-43 (2006).

Trial counsel testified that he did not object to the prosecutor’s closing argument because he did not believe there was anything wrong with the statement and that it was appropriate. (N.T. January 23, 2008, p. 14.) He believed that the assistant district attorney was commenting on statements made by counsel in his closing. (Id. at p. 32.) Further, he did not believe the Commonwealth was trying to shift the burden of proof to defendant. (Id. at p. 15.)

In his closing argument, trial counsel questioned how the clothing identified as worn by the robber came to be in defendant’s residence. (N.T. June 6, 2005, pp. 213-14.) The challenged remark was part of the Commonwealth’s response. (Id. at p. 218.) While the statement at issue may have been inartful, it was not sufficient to effect the outcome of the trial.

Immediately after this comment, the prosecutor informed the jury that the Commonwealth had the burden of proof. (Id. at p. 219.) Viewed in context, there was no attempt to improperly shift the burden of proof. Further, the court fully and adequately explained defendant’s presumption of innocence, the Commonwealth’s burden of proof and reasonable doubt to the jury. (Id. atpp. 228-30.) Based upon the applicable law, the court concludes that defendant’s claim lacks merit.

In the final issue, defendant claims trial counsel was ineffective for failing to file an appeal on his behalf.

A defendant has a constitutional right to an appeal to the Superior Court. Commonwealth v. Harmon, 738 A.2d 1023, 1024 (Pa. Super. 1999), appeal denied, 562 Pa. 666, 753 A.2d 815 (2000). In order to establish a claim of ineffective assistance of counsel for failing to file a direct appeal, the defendant must prove that he requested counsel to file an appeal and that counsel disregarded the request. (Id.) An unjustified failure to file a direct appeal upon request is prejudice per se, and if the remaining requirements of the Post Conviction Relief Act are satisfied, the defendant does not have to demonstrate his innocence or the merits of the issues he would have pursued on appeal to be entitled to relief. Commonwealth v. Spencer, 892 A.2d 840, 842 (Pa. Super. 2006) (citing Commonwealth v. Lantzy, 558 Pa. 214, 227, 736 A.2d 564, 572 (1999)).

Lantzy does not dispense with the requirement that the defendant prove that he requested an appeal before he is entitled to relief. Commonwealth v. Harmon, 738 A.2d 1023, 1024 n.5 (Pa. Super. 1999), appeal denied, 562 Pa. 666, 753 A.2d 815 (2000). Amere allegation is not sufficient; rather the burden is on the defendant to prove that he requested the appeal and that counsel disregarded his request. See id. at 1024 (citing Commonwealth v. Collins, 546 Pa. 616, 622, 687 A.2d 1112, 1115 (1996)).

Defendant testified he told his attorney to appeal his conviction on at least two separate occasions. After he was found guilty by the jury, defendant told counsel to file an appeal and told him again after sentencing. (N.T. January 31, 2008, pp. 38-39.) Defendant also claims that prior to the start of trial he told his attorney that he wanted “everything preserved for my appeal process.” {Id. at p. 39.) After he was sentenced and incarcerated, defendant wrote letters to his attorney requesting transcripts. {Id. at p. 40.) Defendant stated he became aware that an appeal had not been filed when he received letters from counsel in response telling him he could not request transcripts because no appeal had been filed. {Id. at pp. 40-41.)

Counsel testified that defendant never directed him to file an appeal. (N.T. January 23, 2008, pp. 15-16, 23-25, 27.) After sentencing on August 30, 2005, he spoke with defendant and defendant said he did not want an appeal filed. {Id. at p. 15.) Counsel memorialized the conversation with defendant in a note to the file which states in part: “At the conclusion of the sentencing, I talked to Mr. Ball about filing an appeal in his case. I told him that there was always something that we could appeal. At the conclusion of the meeting he told me not to file any appeal in either of the cases. I told him that any matter not waived (sic) in a direct appeal would be waived and despite that information he still maintained that I should not file an appeal in either of these two cases.” (Id. at pp. 24-25; Commonwealth exhibit 1.)

On September 19, 2005, defendant wrote to his attorney requesting his trial transcripts. Counsel responded on September 29, 2005, reminding defendant that he had stated after sentencing that he did not wish to file an appeal, and because no appeal had been filed, there was no copy of the trial transcripts. Commonwealth exhibit 2. Defendant sent counsel another letter dated October 10, 2005, Commonwealth exhibit 3, again requesting transcripts to which counsel responded on October 17, 2005. In his October 10 letter, defendant did not ask about the status of an appeal or why one was not filed nor did he ask that counsel file an appeal. Commonwealth exhibit 3. He only requested the trial transcripts. (Id.)

The court does not find credible defendant’s claim that he requested counsel to file an appeal on his behalf. Counsel testified that after sentencing defendant told him he did not want to pursue an appeal. Counsel memorialized his conversation with defendant in a note to his file and further memorialized the conversation in two letters to defendant. In addition to defendant’s obvious interest in the outcome of this matter, the court notes that defendant failed to offer any evidence, other than his own statements, that he requested counsel to file an appeal on his behalf. The only letter from defendant, Commonwealth exhibit 3, makes no reference to an appeal. Even after receiving counsel’s letters, Commonwealth exhibits 2 and 4, defendant never contacted his attorney expressing outrage or concern that an appeal had not been filed. Defendant has failed to support his claim with any credible evidence and no relief is warranted.

For the reasons stated above, the court enters the following:

ORDER

And now, May 27, 2008, upon consideration of defendant’s amended motion for post-conviction collateral relief, and following a hearing, it is ordered that the amended motion is denied.

      . 18 Pa.C.S. §3701(a)(l)(ii).

      . 18 Pa.C.S. §5516(a)(1), (2)(ii).

      . 18 Pa.C.S. §903(a)(1).

      . In response to this request, defendant was provided a sandwich and a drink. (N.T. January 31, 2008, p. 35.)


source: Caselaw Access Project

author: SPRECHER, J,

license: Public Domain

text:
    Grim v. West Publishing Corporation

      Robert R Grim, pro se.

      Andrew Schwartz, for defendant.
    August 4, 2008
   SPRECHER, J,

Plaintiff appeals the order dated May 30, 2008, which granted defendant’s motion for judgment on the pleadings. This opinion is filed pursuant to Pa.R.A.P. 1925.

FACTS

Plaintiff, Robert P. Grim, Esquire, filed a complaint in equity against defendant, West Publishing Corporation. The complaint alleges that plaintiff met with defendant’s sales representative regarding a change to plaintiff’s account with defendant to add defendant’s internet research program, Westlaw. It is also alleged that this salesperson had represented that Westlaw would be able to provide plaintiff with the necessary research materials and forms that he needed to practice real estate law, banking, wills, trusts and estate law. It is further alleged that the salesperson also had recommended that plaintiff cancel his subscriptions to various competing publications because all of the needed information would be accessible to plaintiff.

Plaintiff signed a subscription agreement with defendant for 36 months. He alleged that he had cancelled several subscriptions which he had maintained since 1969. After signing the contract, plaintiff alleged that he had learned that defendant did not have the forms and publications that he needed.

Plaintiff alleged that at a meeting on December 18, 2006, defendant’s representative had admitted that defendant could not supply plaintiff with the necessary forms and had acknowledged that there was no guarantee that all the forms and information needed to replace the cancelled subscriptions could be supplied even if plaintiff purchased additional and more expensive Westlaw packages.

Plaintiff asserts in his complaint that defendant defrauded him. He paid defendant $6,473.43 from August 2005 through November 2006, for charges for a program that was useless to him. Plaintiff stopped paying for Westlaw in November 2006. However, he continued to pay for Westlaw publications. Defendant, nevertheless, sent plaintiff a notice of service termination of the publications due to his refusal to pay the Westlaw fees. Plaintiff contends that it will cost him $7,000 to bring his library current and that he is unable to practice law effectively due to the cancellation of all of his print services.

Defendant filed an answer with general denials and new matter. The new matter contains the following allegations:

(1) Plaintiff has failed to state a claim upon which relief may be granted.

(2) This court lacks proper subject matter jurisdiction.

(3) Plaintiff agreed to the terms set forth in the Westlaw order form and West subscriber agreement, which provide that Minnesota law governs disputes arising under the agreement between plaintiff and defendant.

(4) Pursuant to the Westlaw order form and West subscriber agreement, a Minnesota court shall have exclusive jurisdiction over any claim and disputes arising under the agreement.

(5) This court lacks proper venue over this action under the subscriber agreement.

(6) Plaintiff’s remedy, if any, is governed exclusively by the terms and conditions of the subscriber agreement between the parties.

(7) Any damages alleged by plaintiff, which damages are specifically denied, arise out of the affirmative actions and/or omissions of plaintiff and/or persons over whom defendant has no control or right of control.

(8) Plaintiff’s equitable claims are barred by the doctrine of unclean hands.

(9) Plaintiff’s equitable claims are barred by laches, waiver, payment and estoppel.

(10) Plaintiff continually used Westlaw services pursuant to the terms and conditions of the subscriber agreement, but has refused and continues to fail and refuse to pay for them.

On April 25,2008, defendant filed a motion for judgment on the pleadings and a praecipe for argument for May 19, 2008. Plaintiff did not file any response. On May 30, 2008, this court granted defendant’s motion and dismissed plaintiff’s complaint. Plaintiff filed the instant appeal.

ISSUES

Plaintiff raises the following issues in his concise statement of errors complained of on appeal:

(1) The trial court committed an error of law by granting judgment on the pleadings without argument. The defendant, in violation of B.R.C.P. 1034(a)(1) filed a praecipe for argument on April 25, 2008, requesting that the motion be listed for argument on May 19,2008, when the earliest allowable date for argument would have been May 20, no earlier than 24 days from the date of filing. Because the case was erroneously listed for argument, plaintiff was not required to file a brief pursuant to B.R.C.P. 1034(a)(3), but did file a brief ultimately on June 12, 2008. Contemporaneous with the court’s entry of judgment on the pleadings, counsel for the parties were negotiating a settlement, and the motion for judgment on the pleadings had been deferred by written agreement.

(2) Judgment on the pleadings should not have been entered in the case because:

“(A) West Publishing’s answer essentially admitted the facts in plaintiff’s complaint, pleaded no facts in its defense or, at the very least, raised issues of fact which could only be resolved by a fact-finder. The lower court should have entered judgment for plaintiff on his cross-motion for judgment on the pleadings.
“(B) The lower court’s use of defendant’s subscriber agreement that had not been attached to any pleading is error. Factual materials in its brief should not have been considered.
“(C) Defendant cannot claim the protection of a merger clause in a contract where plaintiff’s action is for fraud in inducing its execution.”

DISCUSSION

This court shall address plaintiff’s issues seriatim. Plaintiff’s first complaint is that this court committed an error of law by granting judgment on the pleadings without argument. This contention is without merit.

On April 25, 2008, defendant filed a praecipe for argument for May 19, 2008. B.R.C.P. 1034(a)(1) provides that a case may be listed for argument on an argument court date no earlier than 24 days from the date of filing. May 19,2008 was 24 days after April 25,2008. The official Berks County Court of Common Pleas Family/Civil Court calendar designated April 25,2008 as the last day to file a praecipe for argument for argument court on May 19, 2008. Thus, this case was not erroneously listed for argument on May 19, 2008.

B.R.C.P. 1034(a)(4) provides that:

“If the non-moving party does not file an argument brief, the court shall decide the motion based on the record. In doing so, the court may in its discretion hear oral argument from the party that filed the motion for judgment on the pleadings, but not from the non-moving party.”

In the case sub judice this court decided the motion based on the record. This court was never notified by any means that defendant’s motion for judgment on the pleadings had been deferred by any written agreement of the parties. Neither an agreement nor a continuance was filed by the parties.

Plaintiff next argues that this court should have entered judgment for him on his cross-motion for judgment on the pleadings. This argument is meritless. Plaintiff’s cross-motion for judgment on the pleadings was filed after this court had already granted defendant’s motion for judgment on the pleadings. Hence, plaintiff’s motion was untimely. Plaintiff did not file a motion for reconsideration of the order granting defendant’s motion for judgment on the pleadings.

Plaintiff’s penultimate complaint is that this court’s use of defendant’s subscriber agreement was error because it was not attached to a pleading. This complaint is not meritorious. Defendant maintained that Minnesota courts have jurisdiction over this case and that an integration clause governs this case. This court did not consider the subscriber agreement in determining the validity or invalidity of these provisions.

Exhibit A which is attached to plaintiff’s complaint contains the Westlaw bridge amendment. This document is signed by defendant’s representative and plaintiff. Paragraph 1 of the document reads in pertinent part:

“This amendment embodies the entire understanding between the parties with respect to the subject matter of this amendment and supersedes any and all prior understandings and agreements, oral or written, relating to the subject matter.”

Thus, this provision provides for a complete integration clause and prohibits evidence of any alleged oral representations made by defendant to plaintiff. This provision was part of the pleadings introduced by plaintiff.

Attached to plaintiff’s complaint is the order form that plaintiff and defendant signed. This document addresses forum selection in the general provisions paragraph and reads in pertinent part:

“This order form is subject to approval by West in St. Paul, Minnesota and is governed by Minnesota law. The state and federal courts sitting in Minnesota will have exclusive jurisdiction over any claim arising from or related to this agreement.”

Therefore, the forum selection clause was in the exhibit attached to plaintiff’s complaint and was correctly considered by this court.

Plaintiff’s last complaint is that defendant cannot claim the protection of a merger clause in a contract where the action is for fraud for inducing its execution. This contention is without merit. This court dismissed plaintiff’s complaint based on the forum selection provision whereby the parties agreed that the Minnesota courts would have jurisdiction over any claims and the lack of any timely response by plaintiff. If plaintiff files his complaint in Minnesota, he may raise the issue of fraud there.

For the foregoing reasons, this court respectfully submits that plaintiff’s appeal should be dismissed.


author: VALASEK, P.J.,

text:
    Redbank Trading Co. v. Ridgeview Gas Co.

      Maureen Sweeney, for petitioner Miller.

      Leo Stepanian, for plaintiff Redbank Trading Company Inc.

      John Drayer, for defendant.
    July 21, 2008
   VALASEK, P.J.,

Before the court for disposition is Daniel M. Miller’s petition to intervene. Miller owns 50 percent of the shares of plaintiff Red-bank Trading Company Inc. Charles M. Thomas owns the remaining 50 percent of Redbank’s shares. Thomas is also president, secretary and treasurer of Redbank, which he incorporated in 2002 as the sole shareholder. Miller is not an officer.

Redbank’s sole asset is a 100-acre vacant parcel (the property) in Madison Township, Armstrong County. Redbank purchased the property on January 7, 2002 while Thomas was Redbank’s sole shareholder. By shareholder agreement dated December 8, 2003, Miller became a 50 percent shareholder of Redbank “in consideration for repayment of one-half of the monies Mr. Miller lent to Mr. Thomas to purchase its real property located in Madison Township, Armstrong County ____” Minutes of special meeting of Redbank directors, exhibit F of Redbank’s brief in opposition to petition to intervene.

The underlying action was commenced in 2006. Redbank alleged in its complaint that Ridgeview Gas Company or its predecessors-in-interest surrendered or abandoned a 91-year-old gas and oil lease of the property; or let the lease expire or terminate. Redbank seeks to eject defendant and to quiet title to the oil and gas rights. Alternatively, Redbank seeks a declaration that the lease has been surrendered or abandoned beyond the one site where a gas well operated by Ridgeview is located so that Redbank can lease the remaining property. According to Miller, after the pleadings closed:

“Redbank and Ridgeview . .. engaged in settlement discussions regarding a new oil and gas lease with more specific terms as to Ridgeview’s obligations. . . . [A]round September 2007, after counsel for both Red-bank and Ridgeview had been negotiating the terms of a new oil and gas lease to resolve this case, Thomas declared that the settlement would not proceed on those terms and instead stated that his personal attorney, Leo Stepanian, would take over the matter for the corporation. Mr. Stepanian entered his appearance for Redbank, in the within action, on October 10, 2007. Mr. Miller did not agree to Mr. Thomas’ actions rejecting a settlement, and did not consent to the engagement of Mr. Stepanian.
“Subsequent to the unilateral hiring of Attorney Stepanian as counsel for Redbank in this matter, Thomas has effectively frozen Miller out of the decision-making process for the corporation, such that Miller’s 50 percent interest in the corporation and, more specifically, his interest in the ultimate disposition of this litigation, is no longer being represented.” 5/27/08 brief in support of petition to intervene at 2. For those reasons, Miller seeks to intervene in this case.

The primary rule on granting intervention is Pa.R.C.P. 2327, which states in, pertinent part, “At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene . . . , subject to these rules if. . . (4) the determination of such action may affect any legally enforceable interest of such person whether or not such person may be bound by a judgment in the action.” Pa.R.C.P. 2327(4). (emphasis added)

“The exact boundaries of what constitutes a ‘legally enforceable interest’ for purposes of intervention . . . are not clear since the question depends upon the careful exercise of discretion and a consideration of all the circumstances involved in a particular case.” GoodrichAmram 2d §2327:8, p. 339 (2007), citing In re Pennsylvania Crime Commission, 453 Pa. 513, 309 A.2d 401 (1973).

Undoubtedly, “[t]he right of intervention should be accorded to anyone having title to property which is the subject of litigation, provided that his rights will be substantially affected by the direct legal operation and effect of the decision, and provided also that it is reasonably necessary for him to safeguard an interest of his own which no other party on the record is interested in protecting.” Bily v. Board of Property Assessment, Appeals and Review of Allegheny County, Pa., 353 Pa. 49, 51, 44 A.2d 250, 251 (1945). (emphasis added)

The concept of a “legally enforceable interest” was further discussed in Keener v. Zoning Hearing Board of Millcreek Township, 714 A.2d 1120 (Pa. Commw. 1998), where the Commonwealth Court stated: “To satisfy Rule 2327(4), the applicant must own an interest in or a lien upon property in question or must own a cause of action which will be affected by the action. He must have some right, whether legal or equitable, which will be affected by the proceedings.” Id. at 1122. (emphasis added) (citations omitted) Applying the above test, the Commonwealth Court held that an individual holding a mortgage on property affected by a zoning dispute had a legally enforceable interest and should remain as an intervenor in the zoning case. The decision was based upon the fact that the intervenor had a lien on the property.

Here, Miller asserts that because he loaned approximately $33,000 to Redbank which was then used for the purchase of the property, he “owns an interest in the property that is the subject of this litigation... [and] the determination of this action will affect his legally enforceable interest in same.” Miller’s brief in support of petition to intervene at 4.

The court is not convinced that under these facts, Miller has a legally enforceable interest in the property which is the subject of this lawsuit. The corporation, not Miller, owns the property. The fact that Miller’s shares were purchased in exchange for money Miller previously loaned Redbank to purchase the property does not give Miller a lien upon, or equitable interest in, the property itself. Although it is true that the value of the property and future income from the property may be affected by this lawsuit, that does not equate with Miller having a legally enforceable interest in the real property either.

Miller has also suggested that Miller’s legal or equitable rights are directly affected by this lawsuit because the property at issue is Redbank’s only asset. However, Miller has not cited, nor has the court unearthed, any case where a shareholder was found to have a “legally enforceable interest” warranting intervention as a plaintiff simply because the litigation involved the corporation’s sole asset. In essence, Miller is asking the court to pierce the corporate veil and treat Miller and Thomas as having individual legal or equitable title to the property based upon their status as shareholders in Redbank. This the court will not do.

This case will surely turn into litigation over corporate governance if the court grants Miller’s petition to intervene. See Miller’s reply to new matter of Redbank. It is clear that Miller and Thomas are at an impasse with respect to the governance of Redbank. However, Miller’s remedy for this impasse is contained in Pennsylvania’s Business Corporation Law, not intervention in this litigation. See 15 Pa.C.S. §§1712, 1981, 1985.

For all the above reasons, the court finds that Miller has failed to satisfy the standard for intervention outlined in Pa.R.C.P. 2327. Therefore, his petition to intervene will be denied.

An appropriate order will be entered.

ORDER

And now, July 21, 2008, after due consideration of Daniel M. Miller’s petition to intervene, it is ordered that the petition to intervene be and hereby is denied.

      . Miller further alleges that Thomas has proposed to create a new entity solely controlled by Thomas, which will own the property’s oil and gas rights and control all royalty proceeds. Petition to intervene, 1513-15, at 4.

      . Miller alleged in his reply: “Thomas usurped the authority of Miller at a shareholder meeting on February 6, 2008, refusing to acknowledge Miller’s position as a director of Redbank, despite the special meeting held December 8,2003 at which 50 percent ownership and control of the corporation was transferred to Miller, and by refusing to allow Miller to vote as a director in the election of corporate officers.” Reply 137. The reply also alleged that Thomas’ election as president on January 2,2002 violated article V of Redbank’s corporate bylaws and that article IV of the bylaws violates 15 Pa.C.S. §1723. Finally, Miller specifically stated that by seeking to intervene, he is attempting to assert and preserve his own rights in the corporation as a director and 50 percent shareholder and [to] prevent Thomas from usurping the rights and benefits owed to Miller by nature of his 50 percent ownership and control interest in the corporation.” Reply, 139.

      . In fact, according to Redbank, Miller filed a specific performance action in the Butler County Court of Common Pleas in February of 2008 which seeks to have Thomas convey his 50 percent share of Redbank to Miller under a theory of specific performance.


author: RUEST, J.,

text:
    Wachovia Bank v. Kelley

      James P. Kennedy and William G. Tressler, for plaintiff.

      R. Denning Gearhart, for defendants.
    August 15, 2008
   RUEST, J.,

Presently before the court is plaintiff’s motion for summary judgment. Oral argument was held on June 20, 2008. Plaintiff submitted a brief. Upon consideration of the brief, arguments, and the relevant case law, the court determines plaintiff’s motion is denied.

FACTUAL BACKGROUND

On December 1,2000, defendant Catherine M. Kelley executed a mortgage in favor of First Union National Bank of Delaware for $52,200. The mortgage was recorded on December 2, 2000 in the office of the Recorder of Deeds in and for Centre County in mortgage book 1196 page 774. Plaintiff is the successor by merger to First Union National Bank of Delaware.

The real property subject to the mortgage is 435 Water Street, Philipsburg, Centre County, Pennsylvania 16866. At the time the mortgage was signed, defendant Catherine M. Kelley was the record owner of the property. By deed dated October 25,2006, defendant Catherine M. Kelley conveyed title to the property to Jennifer A. Kelley while retaining a life estate for herself.

PROCEDURAL HISTORY

Plaintiff initiated this cause of action by filing a complaint on August 11, 2006. Defendant filed preliminary objections to the complaint. Plaintiff responded to the preliminary objections. By order entered November 8, 2006, the Honorable Charles C. Brown Jr., granted the preliminary objections and directed plaintiff to file a more specific pleading.

Plaintiff filed the amended complaint on December 4, 2006. Defendant filed an answer and counterclaims on February 26, 2007. Plaintiff filed a response to the counterclaims on March 29, 2007.

Plaintiff served defendant with interrogatories, request for production of documents, and request for admissions on April 18, 2007. Defendant responded to plaintiff’s discovery request on May 29,2007. The parties filed a joint stipulation joining Jennifer A. Kelley as an additional defendant, which was approved by the court on August 8,2007. Plaintiff filed a second amended complaint in accordance with the stipulation on August 17,2007. Defendants filed an answer and counterclaims to the second amended complaint on September 21, 2007 by referencing the answer to the amended complaint filed on February 26, 2007.

Plaintiff filed a motion for summary judgment on March 5, 2008.

DISCUSSION

This case is easily summarized: defendant Catherine M. Kelley paid her mortgage each month to plaintiff’s servicing firm. She then received a refund check for overpaying escrow. Plaintiff alleges defendant missed a payment. Defendant asserts she made the missing payment. Believing she was paying the correct amount each month, defendant continued to send checks and plaintiff continued to accept these checks. In actuality, defendant was not taking into account her alleged underpayment and subsequent late charges in her monthly checks. Defendant was clearly confused by the situation, and receiving an escrow refund check in October 2005 with little explanation only served to confuse her further. Plaintiff then stopped accepting payments in June 2006 and moved to foreclose on defendant’s home.

In Pennsylvania, motions for summary judgment are governed by the well-established standard set forth below:

“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).

In support of a motion for summary judgment, the moving party may show that the non-moving party is unable to satisfy an element of his cause of action or defense. First Pennsylvania Bank N.A. v. Triester, 251 Pa. Super. 372, 380 A.2d 826 (1977).

Plaintiff argues there are no remaining issues of material facts. Defendant maintains she did not miss the May 2006 payment. This is an issue of fact upon which plaintiff’s claim clearly rests. Additionally, the court determines there are outstanding issues of material fact relative to the allegedly missed and short payments.

Accordingly the following is entered:

ORDER

And now, August 15, 2008, plaintiff’s motion for summary judgment is denied.


author: FRIEDMAN, J,

text:
    Janicki v. Oates

      Ronald Janicki, pro se.

      Timothy Wojten, for defendant.
    July 10, 2008
   FRIEDMAN, J,

This decision is filed pursuant to Pa.R.C.P. 1038. See also, Pa.R.C.P. 227.1(c) (2).

The captioned matter consists of two cases which were consolidated by order of the Honorable R. Stanton Wettick Jr. of this court, dated November 9,2007. During the trial the Janickis were referred to as plaintiffs and Mr. Oates was considered the defendant. Mr. Oates’ claim, filed at AR 07-5484, was generally referred to as a counterclaim.

The dispute involves the construction of an addition to the residence of the Janickis. According to the Janiclcis, Mr. Oates orally agreed to do two separate aspects of the addition: he was to dig a trench for the footers, to pour the footers, and lay five courses of cement block for the foundation, and, after the framing was completed, Mr. Oates was to install stone facing to cover the cement block so that the exterior of the addition would match the existing house.

The Janickis chose not to have an architect (or anyone else) draw up any plans or specs for their project. As a result, no one who worked on the job, nor indeed the Janickis themselves, knew prior to the start of the work exactly what would be involved and what decisions had to be made. Mr. Oates’ work was not adequately defined at the beginning of the work nor was its scope ever set down in a writing of any sort.

When the foundation was done, including an extra which we will discuss later, Mr. and Mrs. Janicki decided they should have a writing regarding the future stone work, which was to be done after the rest of the addition was framed in. They composed a statement on the back of an envelope, the original of which was available at trial and viewed by the court. A copy of the envelope (envelope agreement) is in evidence as plaintiffs’ exhibit 31. It is fully quoted below:

“As per our agreement, I, Oates, promise to install exterior stone on Ron Janicki’s addition for the total sum of $3,500 when addition is completed. Includes material and labor.
“November 21, 2005.”

THE STONE FACING

We will first discuss the envelope agreement, which never was performed by either party. Mr. Oates acknowledged that he signed it, although the location of the signature is not at the end of the writing. The dispute about this exhibit is over its meaning, in particular, the meaning of the word “materials.” That crucial word is ambiguous in the circumstances of this case. The Janickis at trial contended that it included the cost of the stone. Mr. Oates says it reflects what he would charge for the mortar, sand, and labor to install the stone facing.

Mr. Oates is credible on this point based on the other circumstantial evidence which shows, inter alia, that at the time the envelope agreement was signed, no one knew how much new stone would be needed. This was because the Janickis wanted to salvage and re-use as much stone as possible from the demolition of a portion of the existing structure. Although the demolition appears to have been done before the envelope agreement was executed, there was no evidence adduced about the actual quantity of salvageable stone. In addition, the amount of stone overall would depend on the number of windows, gables, and other openings in the addition, none of which had been determined at the pertinent times. The most that would have been known to Mr. Oates when he signed the envelope agreement is the rough maximum square footage of the exterior walls of an addition that might be roughly the same height as the house.

The Janickis eventually purchased stone themselves after Mr. Oates refused to include the stone in the price he had given for installation, and another person, Lawrence O. Craig Jr., installed it. The cost of that stone was $2,140. See Prada testimony and plaintiffs’ exhibit 35. The cost for installation by Mr. Oates that the Janickis say was to include the cost of stone was only $3,500. The Janickis drafted the envelope agreement and failed to define what they thought “materials” was to include. They also failed to include words such as “provide and install,” which would have clarified what they expected of Mr. Oates.

The court believes Mr. Oates at the time considered “materials” to be the things that he needed for the installation he had agreed to do, i.e., mortar and sand. He described his policy never to allow anyone else to provide the sand needed, because when this sort of thing did occur, the wrong kind of sand was usually supplied. The court believes that, at the time, Mr. Oates reasonably understood “materials” to refer only to the mortar and sand. The court therefore concludes that the envelope agreement did not require him to provide the stone itself. There was no meeting of the minds on that point; at most there was a mutual mistake.

We now turn to the contract that was performed, the foundation work. Mr. Oates says he did all he was supposed to do and did it in a workmanlike manner. The Janickis admit they paid him in full for all he demanded for that work. However, the Janickis say they later learned, after the framing had been done and another mason, Mr. Craig, had been hired to do the stone work, that Mr. Oates’ work was not done properly. They claim he did not leave enough of a ledge to receive the stone facing. They claim he left some joints open, without mortar and that he even left out parts of block. They claim one corner of the foundation was neither square nor plumb. They claim that Mr. Craig had to make various adjustments to the normal way of installing facing in order to deal with the problems that Mr. Oates created (and that he presumably would have to have corrected had he fulfilled his agreement to install the stone facing). As a result they say they had to pay more to Mr. Craig than Mr. Oates’ contract price and they also had to pay for the stone themselves, again instead of Mr. Oates supplying it for the price in the envelope agreement.

The court finds that Mr. Oates’ work was properly done in a workmanlike manner, that there was an adequate ledge left to receive the stone that the Janickis actually purchased, and that it was more probable than not that the framing, not the foundation, was out of plumb and not correctly set on the foundation wall. The supposed deficiencies in his work were not at all material to workmanlike quality and were at most merely cosmetic in nature, assuming anyone wished to crawl under the addition to gaze at the block walls. The supposedly missing block was more probably than not intentionally left out or cut out to accommodate the plumbing for a bathroom the Janickis had decided to include in the addition after the foundation was completed (more about this later, as it led to a dispute about an extra). In any case, the defects proven were minor, easily and cheaply correctable, and were not a material breach by Mr. Oates.

The empty joints were vertical ones (called “head” joints) and were not structural in nature; in fact, the credible evidence was that the stone facing would have cured the only harm that might result, an opening for insects and small animals to enter the crawl space. The horizontal joints (called “bed” joints) were structural and were all in place. The credible evidence further showed that the time needed to fill the horizontal joints was minimal and that, had the Janickis demanded they be filled before they paid Mr. Oates, he would have caused them to be corrected.

There was also a contention by the Janickis that the exterior base of a part of the foundation was not made to receive stone at all. However, the credible evidence on this point is that Mr. Janicki at the time had indicated that soil would be placed “to grade” along that area (above a sidewalk which was to be replaced by the Janickis after the addition was done, near some exterior stairs). There would therefore be no stone facing installed there merely to have it covered with dirt. See the testimony of Mr. Edward L. Wood who was the foreman on the job, July 3, 2008, videotape time 9:49-11. Rather than placing soil to grade, the Janickis decided to place a planter in that area to conceal the lack of stone facing. The planter has no footer and is more probably than not temporary in nature, awaiting the replacement of the sidewalk and other landscaping.

The photographs of the supposedly defective comer of the foundation show only the condition after Mr. Craig had chosen to partially demolish it. He also core-filled the entire foundation, using cement and rebar, supposedly to strengthen it. Certainly the demolition he did required that the corner be strengthened, but the credible evidence shows that a block foundation of only five courses does not need rebar to be structurally sound nor did the Janickis require that to be done as part of the foundation contract.

The issue then is whether Mr. Oates’ far comer of the foundation was out of plumb and out of square. The available evidence does not show anything that looks out of square. The photographs that show the shallower top blocks that create the ledge indicate that the blocks are equally indented over the deeper lower blocks. The interior photos do not show anything that is not flush. There was one photo that was said to show a block that was sticking out a little bit and was not flush, but the angle was odd, and it did not, in any case, seem indicative of the kind of problem with the depth of the ledge that Mr. Craig said he encountered after the framing was done. There was also no credible evidence (and virtually no evidence at all) to show that the foundation was out of plumb.

The court finds that the reason Mr. Craig found the ledge to be too shallow was that he (and the Janickis) were trying to use the salvaged stone, which was much thicker than the new stone. From the available evidence, it appears that the only salvaged stone came from the doorway that was broken out from the original residence to provide entry into the addition. The credible evidence shows that the original stone on the existing structure, as Mr. Craig credibly pointed out, was roughly two inches deeper than the new stone. It would therefore require a deeper ledge. However, this greater depth was unknown to the Janickis and to Mr. Oates at the time they entered into the oral foundation agreement.

It also does not appear that a large amount of “old” stone would have been available, even if it were all salvageable. The more reasonable approach for the Janickis to have taken would have been to give up the idea of saving a relatively small amount of money on the stone and to use all new stone for the addition. This is especially so since the new stone was not even the same type as the existing stone, although we assume that it was a satisfactory match, appearance-wise.

We find that the credible evidence shows that Mr. Oates built the foundation without any material defects, that the wall could have and did receive the new stone and that any defect with the far comer was not shown by the evidence to be caused by the foundation being out of plumb or out of square.

EXTRA COST FOR THE FOUNDATION WORK

We now turn to the additional charge, which the Janickis accepted and paid for, at the time in question. This was the $500 for cleaning out the debris originally left in the crawl space that had to be removed when the Janickis decided to add a bathroom to the addition. They did not make this decision until after the foundation walls had been built. Debris, which otherwise could properly have stayed under the addition, had to be removed later to allow the plumbing to be installed.

Whatever the circumstance of this additional work, it was done at the Janickis’ request, was not part of the original foundation agreement, and the parties agreed to the price of $500, which was paid by the Janickis and accepted by Mr. Oates.

MISCELLANEOUS FACTUAL FINDINGS

The Janickis also claim that Mr. Oates is responsible for some items of damage to their property:

“Cracks in a portion of the sidewalk by the addition.
“Stains, ridges, and valleys on two large pads of their driveway.
“Electrical wire that had to be dug out and replaced.”

The court finds none of these claims are supported by a preponderance of the credible evidence. As to the sidewalk, it was the only access to the area where the addition was to go. The court believes that the Janickis intended to replace it once the addition was finished. The court also believes the evidence that Mr. Janicki told Mr. Oates or the workers that there was no problem going over the sidewalk with the necessary heavy equipment because the Janickis intended to replace it when the addition was finished.

As for the driveway, the photographic evidence of damage indicates some staining, but there is insufficient credible evidence to support the contention that Mr. Oates (or his agents or sub-contractors) is responsible for it. The credible evidence is not sufficient to lead the court to conclude it is concrete from the footers, as the Janickis’ witnesses have conjectured. Similarly, with regard to cracks, the court could only speculate about when and how they occurred.

Lastly, the scant evidence regarding the electrical wire (a bill) indicates it shorted out because of a bad splice. Mr. Oates did no electrical work whatsoever and the court finds no evidence that he caused any existing wiring to be damaged. The credible evidence is to the contrary; we must recall that the Janickis paid him in full for all the digging work without any mention that an existing underground wire had been damaged while that equipment was being used.

CONCLUSIONS OF LAW

The court concludes that the extra work was performed and paid for and will not factor into any awards for either party any actual costs related to that relatively minor issue.

The court further concludes that both parties fully performed the foundation agreement. Mr. Oates did the work that the Janickis expected with regard to the foundation and the Janickis paid Mr. Oates for that performance, thereby completing their own performance under the foundation agreement.

As to the envelope agreement regarding the future stone work, the court finds that the Janickis drafted a writing that was ambiguous and that the court construes, based on the credible evidence, as not including the price of the stone. The court concludes that Mr. Oates was therefore justified in refusing to pay for the stone as part of his performance of the envelope agreement. He was also justified in refusing to start the work without that aspect of the envelope agreement being resolved.

In summary, the court concludes that the Janickis are entitled to nothing on their claim and Mr. Oates is entitled to nothing on his counterclaim.

Pursuant to the rules of court cited above, this decision constitutes the verdict of this court; there will be no separate verdict slip filed.

      . We also note that the docket numbers are confusingly similar and have led to a variety of typographical errors that seem almost inevitable. The case filed by the Janickis is AR 07-5448.

      . The court does not recall ever seeing a photo of the finished addition, so we do not know what its final appearance was.


author: PARISI, J.,

text:
    Commonwealth v. Key

      Rosalynda Michetti and Adrian Schuka, for Commonwealth.

      Vanessa Bellino and Eric J. Taylor, for defendant.
    August 19, 2008
   PARISI, J.,

On January 30,2008, a jury convicted Narada A. Key (defendant) of two counts each of possession with intent to deliver a controlled substance, delivery of a controlled substance, possession of a controlled substance, and criminal use of a communication facility. 35 P.S. §§780-113(a)(30), 780-113(a)(16); 18 Pa.C.S. §7512(a). OnFebruary 19, 2008, the defendant received an aggregate sentence of six to 12 years of incarceration. Following the timely filing of a notice of appeal, the defendant raised the following issues for appellate review:

(1) The suppression court erred in denying the appellant’s motion to dismiss pursuant to Pennsylvania Rule of Criminal Procedure 600 in that the trial court found that the Commonwealth had used due diligence in finding and apprehending the defendant where the weight of the documented physical evidence is to the contrary.

(2) The suppression court erred in denying the defendant’s motion to suppress evidence derived from illegal electronic surveillance because under the totality of the circumstances the consent of the informant was coerced and was not voluntarily given.

In December 2005, Trooper Taylor and Corporal Millhouse of the Pennsylvania State Police recruited Matthew McCleary, a criminal defendant, to conduct controlled buys of drugs from the defendant while under electronic surveillance. McCleary was promised nothing in exchange for his participation. Neither Trooper Taylor nor Corporal Millhouse threatened Mc-Cleary to coerce participation. In approving the use of electronic surveillance equipment, Senior Deputy Attorney General Kishan Nair personally communicated with McCleary to verify that he was acting voluntarily and had not been coerced. Based upon this communication and McCleary’s apparent volition, Nair approved the use of electronic surveillance equipment.

Having obtained evidence against the defendant, Trooper Taylor delayed in charging the defendant with drug crimes while the defendant helped them with investigations. However, he warned the defendant to stay in touch with the state police or charges would be filed. When the defendant failed to stay in contact with Trooper Taylor, Trooper Taylor filed a criminal complaint and attempted to arrest the defendant at his last known residence on February 2, 2006. Trooper Taylor eventually tracked down the defendant on August 21, 2006, in Berks County Prison.

In the intervening period, Trooper Taylor visited the defendant’s last known address at least twice, until being told that the defendant no longer lived there by its resident, the defendant’s ex-girlfriend. She alleged to Trooper Taylor that she did not know the defendant’s whereabouts. Trooper Taylor tried to call the defendant. He registered the defendant with the National Crime Information Center (NCIC), which is designed to alert anyone detaining the defendant of the outstanding warrant against him. Trooper Taylor also tried to find the defendant by driving by Reading Area Community College (RACC) at an hour when he thought the defendant started class. He then attempted to find the defendant’s RACC class schedule, only to be told that the defendant was not then taking classes. In March, he passed the defendant’s picture around to a large group of Pennsylvania State Police and asked them to let him know if they became aware of the defendant’s whereabouts. Finally, Trooper Gallagher discovered and informed Trooper Taylor that the defendant was in Berks County Prison on August 21, 2006, and a detainer was lodged against the defendant in relation to this matter.

The defendant first contests this court’s finding that the Commonwealth exercised due diligence in its efforts to locate and apprehend the defendant. Under Rule 600 of the Pennsylvania Rules of Criminal Procedure, criminal defendants merit release where the Commonwealth fails to bring trial within 365 days of the filing of the criminal complaint. Pa.R.Crim.P. 600(A)(3). However, where the Commonwealth exercises due diligence in its attempts to apprehend a defendant, the time between the filing of the information and apprehension are not counted in the 365 days. Pa.R.Crim.P. 600(B)(1). The Commonwealth bears the burden of proving that its efforts to bring a defendant to trial were reasonable and diligent. Commonwealth v. Matis, 551 Pa. 220, 710 A.2d 12 (1998). However, the Commonwealth must only show by preponderance of the evidence that it expended a reasonable effort in apprehending the defendant in order to meet its burden. Commonwealth v. Hill, 558 Pa. 238, 736 A.2d 578 (1999); Commonwealth v. Selenski, 919 A.2d 229, 234 (Pa. Super. 2007) (quoting Commonwealth v. Jones, 886 A.2d 689, 700 (Pa. Super 2005)). The Superior Court will not upset a trial court’s decision pursuant to Rule 600 absent an abuse of discretion. Commonwealth v. Hill, 558 Pa. 238, 244, 736 A.2d 578, 581 (1999) (citing Commonwealth v. Matis, 551 Pa. 220, 227, 710 A.2d 12, 15 (1998)).

Because of this court’s finding of due diligence, the time between the filing of the complaint on February 2,2006 and the serving of the defendant with his arrest warrant in Berks County Prison on August 21, 2006 was not counted against the Commonwealth and the Commonwealth was found not to have violated Rule 600. This finding was justified because the Commonwealth showed reasonable, diligent efforts to apprehend the defendant. Hill, 558 Pa. at 256, 736 A.2d at 588. Trooper Taylor tried to find the defendant at home on multiple occasions. He tried calling the defendant and visiting the defendant’s school. He registered the defendant with NCIC and passed a photo of the defendant to other troopers. Under the circumstances, this was a reasonable level of effort for Trooper Taylor to expend in finding the defendant.

Trooper Taylor met the standard even though he neglected a number of possible avenues for finding the defendant’s whereabouts. For purposes of Rule 600, due diligence must be judged by what was done by the authorities rather than by what was not done. Commonwealth v. McNear, 852 A.2d 401 (Pa. Super. 2004). Moreover, for the Commonwealth to prove due diligence, it need not show that it exercised “perfect vigilance and punctilious care.” Jones, 886 A.2d at 700. Because Trooper Taylor made several attempts to find the defendant, pursuing various, albeit not all, avenues of investigation, and ultimately asking the help of many of his colleagues, this court found that he met the standard of due diligence.

The defendant next contends that this court erred in finding that the confidential informant participated voluntarily in the electronic surveillance of the defendant. Trooper Taylor and Corporal Millhouse subjected the informant to neither threats nor promises of reward. Senior Deputy Attorney General Kishan Nair personally verified the lack of coercion in his communication with the informant. Finally, the informant continued to attest to the voluntary nature of his participation at both the pretrial hearing and at trial. Therefore, contrary to the defendant’s assertion, the totality of circumstances support this court’s finding that the informant acted voluntarily.

For the foregoing reasons, it is respectfully requested that the defendant’s appeal be denied.


text:
    Burns v. GJ Sales Co.

      Todd T. Zwikl, for plaintiff.

      Doug Hart, for defendant.
    April 11, 2008
   FRIEDMAN, J,

This decision is filed pursuant to Pa.R.C.P. 1038. See also, Pa.R.C.P. 227.1(c)(2).

INTRODUCTION

The captioned matter involves a dispute over commissions plaintiff claims she is owed for work she did for defendant GJ Sales Co. during the years 2003 and 2004. Plaintiff was hired as an independent contractor pursuant to a written agreement (contract) with defendant. The claims against two individual defendants, Mrs. Gee Izworski, defendant’s sole shareholder, and Mr. Gene Izworski, her husband and employee of defendant, were voluntarily dismissed prior to the trial, which was before the undersigned sitting without a jury. Plaintiff has filed two counts against the defendant, one for breach of contract and one for unjust enrichment. Defendant says unjust enrichment is not applicable here and also denies owing plaintiff anything under the contract, saying her breach of the terms of the contract is ample justification for its refusal to pay her the commissions she would otherwise have been entitled to. Defendant has also filed a counterclaim against the plaintiff based on her alleged failure to return product samples, the value of which is said to exceed the amount of those commissions.

The court concludes that the relationship between them is governed by the written contract and agrees with defendant that the count for unjust enrichment must be dismissed, without further discussion.

DISCUSSION

Defendant asserts four different breaches by plaintiff, (1) working for a competitor of defendant, (2) failing to give defendant a list of upcoming appointments, (3) failing to give 30 days notice, and (4) failing to return samples. The court concludes that the credible evidence shows that plaintiff did not breach the contract in any material way.

1. PlaintiffDid Not Work for a Competitor of Defendant’s

Plaintiff did not breach section E of the contract (plaintiff’s exhibit A) when she did some work for another company, Frank Meyers Associates (FMA) while she was acting as a sales representative for defendant. It is undisputed that plaintiff was an independent contractor for defendant, and the court finds that, under the contract, she was not barred from working for others during the same time period so long as she did not work for competitors of defendant.

Whether or not there was in fact a breach depends on whether or not FMA was a competitor of defendant within the meaning of the contract. Plaintiff believed at the time that it was not. The court finds that her belief was sincerely held at the time. The court finds that plaintiff did not sell any product lines for FMA that were competitive with or similar to the product lines defendant sold. The court also finds that defendant did not provide credible evidence sufficient to rebut the plaintiff’s evidence that the lines of gifts she sold for FMA did not compete with the lines of gifts she was selling for defendant. The court does not credit the testimony of Mrs. Izworski that defendant’s “competition” with FMA was for shelf space, not for similar product lines, and that the contract therefore should be interpreted accordingly.

To the extent the meaning of the phrase “in competition with GJ” is ambiguous, it must be interpreted against defendant, which drafted it. Plaintiff’s understanding that the relevant competition was product lines is credible and not at all unreasonable, especially since she was designated an independent contractor and not an employee by defendant. An “employee” might have a duty not to work for anyone else, whether or not a competitor, during the course of his or her employment. An independent contractor, such as plaintiff, would have no such duty. It is also noted that even Mrs. Izworski does not contend that she explained her theory of competition being related to shelf space to plaintiff when she allegedly went over the contract in detail with her.

The court concludes that plaintiff did not breach the contract when she did work for FMA, so this is not a valid excuse for defendant to refuse to pay the commission she was due under the contract.

2. There Was No Breach of the Provision Related to Appointments

The next issue is whether plaintiff breached the contract by failing to give defendant a list of her outstanding appointments within three days, as required by section F. The evidence on this issue is scant. At trial, plaintiff credibly testified that she had no significant number of appointments, if she had any at all, while Mr. and Mrs. Izworski tried to say she must have had appointments and deliberately did not turn them over to defendant. The Izworskis also tried to assert that the contract required plaintiff to give them her personal appointment book. It does not, so plaintiff’s failure to give it to them is not violative of the contract. However, there is no indication that at the time the Izworskis were at all concerned that appointments had not been given, assuming, arguendo, that this was the case. There was no evidence adduced that defendant received any feedback from a customer complaining that an appointment was not kept, nor was there evidence of any lost sales to customers who might normally have placed an order. The court believes the supposed list of appointments was a non-issue at the time and that defendant raised it only after deciding it would keep plaintiff’s commissions. In summary, the credible evidence does not support the contention that plaintiff failed to give defendant “a record of any future appointments booked.”

3. There Was No Breach of the Notice Provision

Another issue is whether plaintiff should have given defendant 30 days notice of her intention to terminate the contract. The credible evidence shows that defendant waived this requirement and deemed the termination effective immediately. Plaintiff did not breach this portion of the contract.

4. There Is No Merit to Defendant’s Counterclaim As There Was No Breach of the Provision Requiring Return of Samples

The last issue related to breach is whether or not defendant’s counterclaim for the value of unreturned samples has merit. The court concludes it does not. The court believes plaintiff’s testimony that she returned all the samples that had ever been in her possession except for some “plush” items that were badly damaged by a flood in plaintiff’s basement where the items had been stored. Some samples had been returned prior to the termination of the contract and the others, except for the damaged “plush,” were promptly returned after.

5. Calculation of Damages Due Plaintiff

Having concluded that plaintiff did not breach the contract and that she is entitled to the unpaid commissions due under the contract, the court must next decide what that amount would be. Plaintiff’s claim for something approaching $11,000 is based on the assumption that defendant was paid in full for every order plaintiff placed. The virtually undisputed evidence, however, is that a certain number of customers would cancel all or parts of orders or fail to pay for them and that it was also not unusual for a manufacturer to ship only part of the entire order placed by plaintiff. Plaintiff does not contend that her commission was ever calculated on the gross amount of orders placed. She admits she was paid based on actual payments defendants received from the various manufacturers represented.

Mr. Izworski testified that defendant had calculated the commissions due under the contract before he and Mrs. Izworski came to believe plaintiff had breached the contract. The amount he then calculated was roughly $3,000. To test the credibility of this estimate, the court accepts as true defendant’s contention that gross sales were usually reduced by 30 percent because of cancellations, non-payment by customers, and partial shipments. The outstanding amount of gross sales made by plaintiff as of the date of termination and unaccounted for by defendant is $97,559.53, as shown in the “difference” column of plaintiff’s exhibit F, which is a summary of the information contained on plaintiff’s exhibit D, her weekly sales logs for 2004. Reducing that by the 30 percent amount defendant says typically fell through, we have an amount of sales paid of $68,291.67 for which defendants would normally have received a commission. Defendant’s testimony was that its usual commission rate is 15 percent of what the manufacturers were paid. That results in gross commissions of $10,243.75 received by defendant. It is undisputed that plaintiff was entitled to 70 percent of that amount under the contract.

The amount plaintiff is owed is no greater than $7,170.63. The court concludes there is insufficient credible evidence to support defendant’s contention that the amount due plaintiff is $3,000 or lower. Having found defendant’s chief witnesses less than credible on so many issues, the court is not inclined to credit their evidence on this issue nor to give them the benefit of the doubt. The court therefore awards plaintiff the amount of $7,000, which reflects a slight reduction of the maximum amount she would be due. That reduction is to account for the admitted possibility that some commissions earned might have been paid after the 90-day limit described in the contract. Plaintiff is also entitled to legal interest of 6 percent per annum on the $7,000 balance due, from January 31, 2005 (the latest date that defendant might reasonably have sent it to plaintiff) through the date of this decision, April 4,2008. The amount of simple interest for that period is 19.56 percent or $1,369.20.

CONCLUSION

The full award to plaintiff is $8,369.20. Defendant is entitled to nothing on its counterclaim.

Pursuant to the rules of court cited above, this decision constitutes the verdict of this court; there will be no separate verdict slip filed.

      . An order changing the caption accordingly was entered thereafter.

      . We note that section E expressly deals only with post-termination competition, but the parties seemed to agree that the same scope of competition would apply prior to termination as well.


author: GEORGE, J,

text:
    Commonwealth v. Wells

      Brian Sinnett, for Commonwealth.

      Kristin Rice, for defendant.
    April 1, 2008
   GEORGE, J,

The defendant, Jessica Karen Wells, files this appeal alleging that this court abused its discretion in not imposing a mitigated range sentence following her conviction for escape. For the reasons set forth below, affirmance of sentence is requested.

Wells was originally convicted of two counts of criminal conspiracy to deliver a controlled substance. Following sentencing, she was released from custody and directed to report to the Adams County Prison for service of her sentence on September 26, 2006. When she failed to report as directed, she was charged with escape in violation of section 5121 of the Pennsylvania Crimes Code. She was subsequently taken into custody on March 13,2007. OnNovember 13,2007, Wells pled nolo contendere to the escape charge. After a pre-sentence investigation was performed and reviewed by the court prior to sentencing, Wells was sentenced to serve no less than nine months nor more than 24 months in a state correctional institution. The minimum sentence imposed was at the bottom of the standard range of the Pennsylvania Sentencing Guidelines.

Initially, I note that sentencing is a matter vested to the sound discretion of the sentencing judge whose judgment will not be disturbed absent an abuse of discretion. Commonwealth v. Perry, 883 A.2d 599, 602 (Pa. Super. 2005). To establish an abuse of discretion, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003). In determining whether a sentence is unreasonable, the discretion of the sentencing court is given great weight as the sentencing judge is in the best position to measure factors such as the nature of the crime, the defendant’s character, and the defendant’s display of remorse, defiance, or indifference. Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa. Super. 1997).

Since Wells’ sentence is within the statutory maximum fixed by the legislature, Wells challenges the discretionary aspect of her sentence. In challenging the discretionary aspect of a sentence, two requirements must be met before the challenge will be heard on the merits. First, the appellant must set forth a concise statement of reasons relied upon for allowance of appeal with respect to the discretionary aspects of the sentence. Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001). Secondly, the appellant must show that there is substantial question that the sentence imposed is not appropriate under the Sentencing Code.

Instantly, Wells was sentenced to a minimum sentence near the bottom of the standard guideline range. This court had the benefit of a pre-sentence report and was aware of all relevant information regarding Wells’ character. See Commonwealth v. Perry, 883 A.2d 599, 605 (Pa. Super. 2005). In imposing sentence, Wells was advised of this court’s reasoning. See sentencing tr., January 11,2008, p. 11. There is no substantial question presented.

The essence of Wells’ appeal is that she claims the sentencing court did not consider mitigating evidence including a claim that her criminal conduct was a result of an anxiety disorder and that her two children, including an infant, need her assistance. Both claims are belied by the record.

Initially, I note that the court not only considered, but also commented on Wells’ request to be available for her children. See sentencing tr., pp. 11-12. Unfortunately for Wells, the court found that other factors, including her failure to take advantage of previous rehabilitative opportunities, outweighed her request. This court’s unwillingness to give Wells the sentence that she wanted is simply not an abuse of discretion.

Similarly, contrary to the representations of Wells, the psychiatric information reviewed by the court at the time of sentencing revealed nothing more than Wells’ self-motivated claims of being in a “very stressful situation.” Also, contained in the psychiatric report is a notation that “for unclear reasons, Jessica fled the law . .. .” She described fear of the consequences, such as incarceration, as a reason for fleeing. Interestingly, Wells’ current claims also contradict earlier statements made by her. For instance, at a bail proceeding conducted on June 28, 2007, Wells offered that while she “was on the run as soon as I found out I was pregnant I was trying to get in touch with my mom and trying to see what my legal options were about my first case and turning myself in and I was in the process of all that.” June 28, 2007 tr., p. 8. Although at sentencing, her mother submitted correspondence that she failed to report to the Adams County Prison due to an anxiety attack, when asked at the June 28, 2007 proceeding as to where her daughter was residing, she indicated that she was unable to account for her daughter’s behavior or residence during her several month absence as she was unaware of her status during that time. As such, the record paints a much different picture than Wells’ current claim that she was significantly overcome with an anxiety attack that mitigated her failure to report.

The overall tone of Wells’ claim ignores the fact that her conduct is exactly of the nature of conduct which the legislature prohibited through criminal sanction. Wells failed to report to the Adams County Prison after being granted leave because she was afraid of incarceration. She fled not only authorities but disappeared from her residence for approximately six months. During that time, her whereabouts are unaccounted for with the exception that she conceived a child to a man whose whereabouts are currently unknown. There is a complete paucity of any indication that Wells attempted to address her “severe panic attacks” through medical intervention between the date of her ordered report and the date she was ultimately taken into custody. Her current claims are nothing more than further proof that Wells continuously minimizes her criminal conduct. See sentencing tr., p. 11. Quite frankly, rather than suggesting that this court should have sentenced in a mitigated range, Wells should be thankful she was not sentenced in the aggravated range.

For the foregoing reasons, it is requested that Wells’ sentence be affirmed.

      . The pre-sentence investigation revealed that Wells’ prior record score was two and the offense gravity score was six.

      . At sentencing, Wells made no suggestion that her actions were caused by a psychiatric condition but rather she proclaimed: “I stand before your honor today to take full responsibility for all of my actions.” Sentencing tr., p. 2.