author: GILMAN, J.,

text:
    Dechant v. Dechant

      Scott A. Petri, for plaintiffs.

      Richard I. Moore, for defendants.
    April 14, 2011
   GILMAN, J.,

This case involves a disputed transfer of real property upon death. Plaintiffs, James D. Dechant, and Lori D. Tyler (hereinafter referred to collectively as “plaintiffs”), have appealed from this court’s order of December 1, 2010. Our order denied plaintiffs’ petitions for partition and for enforcement of a property settlement agreement (hereinafter referred to as the “PSA”) between their father, the decedent, Robert G. Dechant, and his widow, Lenora Dechant (hereinafter referred to as “defendant” or “Ms. Dechant”). We offer this opinion in support of our order and decision.

BACKGROUND

This matter was tried before this court, sitting without a jury, on August 30, 2010. Plaintiffs asserted that the PSA executed on September 21, 2006 by their father and his second wife, Ms. Dechant, is enforceable, and that accordingly, Ms. Dechant must either purchase the decedent’s fifty percent (50%) interest in the real property located at 6335 Femwood Avenue in Bensalem, Bucks County (hereinafter referred to as the “property”), which plaintiffs assert has passed to them as heirs, or list the property for sale and remove herself from the property. Defendant Ms. Dechant, married to decedent for more than twenty (20) years, asserted that as of the time of her husband’s death on May 16, 2009, the property was owned by her as a tenant by the entirety, and therefore, by operation of law, passed to her fully and completely upon her husband’s death. We agree with defendant’s position.

Based upon the facts and law, as discussed below, we entered our opinion and verdict on December 1, 2010, including extensive findings of facts and conclusions of law, wherein we found in favor of defendant and against plaintiffs. We also denied and dismissed plaintiffs’ request for legal fees and costs. Plaintiffs filed a motion for post-trial relief on December 10, 2010, which we denied by order dated January 19, 2011.

Plaintiffs then filed the instant appeal to the Superior Court.

STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

We recite plaintiffs’ 1925(b) statement of matters complained of on appeal verbatim, as follows:

1. Whether the learned trial judge failed to find that at the time of decedent’s passing decedent owned the subject real estate with his wife as tenants in common, the parties having executed a property settlement agreement which severed the entireties.
2. Whether the learned trial judge failed to recognize that as a matter of law that the execution of the property settlement agreement by the parties severed the tenancy by the entireties and contains an integration clause which does not allow consideration of other matters except to resolve an ambiguity.
3. Whether the Learned Trial Judge erred in finding that the parties modified and/or rescinded the terms of the property settlement agreement as the property settlement agreement states that any amendments or modifications are invalid unless set forth in writing and no such oral modifications of property settlement agreement can be recognized unless in writing.
4. Whether the learned trial judge failed to find that the property settlement agreement, which is not predicated by divorce and where the parties released testamentary claims against each other and provided that the parties shall continue to own subject property jointly and intended to list the residence within five (5) years of the date and divided the net proceeds 50-50, was intended to and did create a tenancy in common.
5. Whether the learned trial judge erred in failing to enter an order enforcing the terms of the property settlement agreement by requiring the defendant to sell the subject property within five (5) years of the decedent’s death.
6. Whether the learned trial judge erred in failing to find that the plaintiffs are third party beneficiaries of the property settlement agreement as it contains a provision making its terms enforceable by the heirs of the parties to the property settlement agreement.
7. Whether the learned trial judge erred in finding [sic] to grant plaintiffs’ request for partition of the subject property.
8. Whether the learned trial judge erred in failing to find that no divorce proceedings were necessary for enforcement of the terms of the property settlement agreement.
9. Whether the learned trial judge’s decision is contrary to the terms of the property settlement agreement and is in error since the order amends, without authority, those terms.

STANDARD OF REVIEW

When an appellate court reviews a non-jury case such as this, its review is

limited to a determination of whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in the application of law. Findings of the trial judge in a non-jury case must be given the same weight and effect on appeal as a verdict of a jury and will not be disturbed on appeal absent error of law or abuse of discretion. When this [Superior] Court reviews the findings of the trial judge, the evidence is viewed in the light most favorable to the victorious party below and all evidence and proper inferences favorable to that party must be taken as true and all unfavorable inferences rejected... The [trial] court’s findings are especially binding on appeal, where they are based upon the credibility of the witnesses, unless it appears that the court abused its discretion or that the court’s findings lack evidentiary support or that the court capriciously disbelieved the evidence. Shaffer v. O’Toole 964 A.2d 420, 422-423 (Pa. Super. 2009) (internal citations omitted).

It is well-established that the paramount goal of contract interpretation, including property settlement agreements, is to ascertain and give effect to the parties ’ intent. When a trier of fact has determined the intent of the parties to a contract, an appellate court will defer to that determination if it is supported by the evidence. Cioffi v. Cioffi, 885 A.2d 45 (Pa. Super. 2005).

DISCUSSION

Plaintiffs’ took the position at trial, and now on appeal, that the decedent and Ms. Dechant held the property as tenants in common because the PSA severed the tenancy by entireties. If that were true, decedent could legally have conveyed or devised his undivided one-half interest in the property to his children. Given the evidence presented at trial, we determined that as of the time of decedent’s death, the property was held as tenants by the entireties by decedent and Ms. Dechant, and that the PSA was neither valid nor enforceable due to the actions of decedent and Ms. Dechant subsequent to the drafting of the PSA.

The following factual and legal analysis of the status of the property upon Robert Dechant’s death in May, 2009, along with analysis of the validity and enforceability of the PSA drafted approximately three (3) years prior to his death, will serve to more than adequately address all of the issues delineated (sometimes repetitively) in plaintiffs’ statement of matters complained of on appeal.

Decedent and defendant held the subject property as tenants by the entireties as of husband’s death.

Decedent and Ms. Dechant were married in September, 1988 (N.T. 8/30/10, p.59), and they had been married for nearly twenty-one (21) years at the time of decedent’s death on May 16, 2009. While Robert Dechant had initially acquired the property on May 4, 1984, prior to the marriage, it became the marital residence of decedent and Ms. Dechant.

On November 16, 2001, decedent executed a deed conveying the property from himself, solely, to himself and Ms. Dechant, for one dollar ($1.00) consideration. (N.T. 8/30/2010, p.14) The 2001 deed does not specify whether the property was to be held as tenants in common, as joint tenants with right of survivorship, or as tenants by the entireties, and does not reference Ms. Dechant as decedent’s wife in the guarantee section. However, it is noted on the deed that the transaction is a transfer from husband to husband and wife, and is therefore transfer tax exempt. (N.T. 8/30/10, p.15)

Longstanding decisional law of this Commonwealth persuades us that Mr. and Ms. Decant held the property as tenants by the entireties. “It is a cardinal rule in the interpretation of conveyances that every deed should be so construed as to give effect to the intent of the parties. [Wjhere the deed to a husband and wife [from the spouse] discloses no intention to create any estate but one by the entireties, such as estate is created in the grantees.” In re Vandergrifts Estate, 161 A. 898 (Pa. Super. 1932). “In order to overcome the presumption that an estate by the entireties exists...there must be clear and convincing evidence to the contrary.” In re Holmes’ Estate 414 Pa. 403, 406, 200 A.2d 745, 747 (1964). “Where property is placed in the names of both the husband and wife, the creation of a tenancy by the entireties is presumed.” Gilliland v. Gilliland, 751 A.2d 1169, 1172 (Pa. Super. 2000) citing Raiken v. Mellon, 582 A.2d 11, 14 (Pa. Super. 1990). Given these legal principles, and applying them to the credible testimony at trial, it is clear that plaintiffs have failed to present clear and convincing evidence to rebut the legal presumption that the marital property was held by decedent and Ms. Dechant as tenants by the entireties.

Since decedent and Ms. Dechant were married as of the time of decedent’s death, and because the type of ownership of the real property had not been changed by deed during the course of the marriage, it follows that Ms. Dechant, as a matter of law, holds the right of survivorship. A defining characteristic of tenancy by the entireties, which is grounded in the unity of the marital relationship, is the right of survivorship. Upon the death of one spouse, the survivor becomes the sole owner of the entireties property. Clingerman v. Sadowski, 513 Pa. 179, 182, 519 A.2d 378, 380 (Pa. 1986). It is abundantly clear, then, that Ms. Dechant now holds the entire fee interest in the property. Plaintiffs have not met their burden of establishing by clear and convincing evidence that Mr. and Ms. Dechant held the property as tenants in common as opposed to by the entireties.

The property settlement agreement of September 21, 2006.

The key question we had to determine as to the PSA was whether or not, as plaintiffs asserted, it severed the tenancy by entireties. The determination of marital property rights through settlement agreements has long been permitted, and even encouraged. In Pennsylvania, property settlement agreements between husband and wife are subject to the same rules as those applying to contract interpretation. Cioffi, supra at 48. In reviewing a court’s order to uphold a marital property settlement agreement, the appellate courts are limited to determining whether the trial court clearly abused its discretion or committed an error of law. If the trial court’s determination is supported by the record, the appellate courts may not substitute their own judgment for that of the trial court, nor may they “usurp the trial court’s factfinding function.” Id. at 48.

The Pennsylvania Supreme Court has held that “it is always competent for the parties to a written contract to show that it was subsequently abandoned in whole or in part, modified, changed, or a new one substituted. This may be shown by parol evidence, by showing either an express agreement or actions necessarily involving the alterations.” Wagner v. Graziano Const. Co., 390 Pa. 445, 448, 136 A.2d 82, 84 (Pa. 1957).

We found that pertinent provisions of the PSA are unenforceable in this case because the parties subsequently modified and/or rescinded the PSA by their actions. For example, although paragraph NINTH of the PSA provided that husband “shall have sole and exclusive possession from and after August 20, 2006”, that provision never came to fruition, as decedent and Ms. Dechant initially continued to reside together for more than one (1) year beyond that date. Later, although decedent (husband) moved out of the marital residence from approximately October of 2007 until April of 2008, he returned to the residence in April 2008 and continued to reside there with Ms. Dechant until his death in May 2009. (N.T. 8/30/2010, p. 52, 59-60) Contrary to paragraph nine of the PSA, then, decedent (husband) never assumed exclusive possession of the marital home.

Decedent lived with a friend from October 2007 until just after his initial cancer diagnosis “approximately in April... April of “08.” (N.T. 8/30/2010, p.52) Ms. Dechant testified that when decedent moved out of the marital residence, the intention was for the parties to separate; “he [decedent] did not mention divorce... that we would just be living apart.” (N.T. 8/30/2010, p.59) Ms. Dechant stated that decedent moved back into the marital home in the spring of 2008 because “he wanted to be with me and in his own home.” (N.T. 8/30/2010, pp.37-38, 60) She helped care for decedent medically from the time he moved back to the property until the time of his death thirteen (13) months later. (N.T. 8/30/2010, p. 60) Between April 2008 and May 2009, decedent and Ms. Dechant never discussed getting a divorce. (N.T. 8/30/2010, p.60)

On rebuttal, James Dechant testified at trial, over a continuing objection by defendant, that shortly before his father died, his father told him that when he recovered, he was planning to go ahead with a divorce. (N.T. 8/30/2010, pp. 62-63) Such discussion allegedly occurred on “the Wednesday before he [decedent] went on the ventilator.” (N.T. 8/30/2010, pp. 62-63) (within two (2) weeks of his father’s death) James Dechant also testified that in early- to mid-2006, he had discussions with his father about his father’s marital circumstances, “the [problems that they had had and the direction that they might go.” (N.T. 8/30/2010, p.64) James Dechant testified that at some point, his father told him that “they weren’t filing for divorce yet but they had an agreement in place.” (N.T. 8/30/2010, p.65) According to James Dechant, his father “never expressed an intention to reconciliation.” (N.T. 8/30/2010, p. 67)

Mr. Dechant never had exclusive possession of the property subsequent to marrying defendant, and prior to his death. (N.T. 8/30/2010, p.52) Additionally, although paragraph nine required that “Husband shall pay the mortgage and taxes and maintain the general condition of the (premises) without incurring any major expenses,” the testimony established that while decedent paid the mortgage and taxes, Ms. Dechant paid for its upkeep. The fact that husband-decedent complied with one provision, paragraph 15 B, the liquidation and distribution of an IRA held by him, does not negate the substantial effect of husband and wife’s non-compliance with other material provisions of the PSA.

We found Ms. Dechant’s testimony as to the nature of her marital relationship with Mr. Dechant to be credible. While decedent and Ms. Dechant originally included language in paragraph nine of the PSA regarding selling the marital home within five (5) years of divorce, their continued conduct thereafter served to negate the triggering pre-condition. Furthermore, the testimony presented convincingly established that the continuing cohabitation relationship and devoted marital conduct of decedent and Ms. Dechant subsequent to having drafted the PSA in 2006 reflected their true intent. We could not reasonably conclude that the language of the PSA regarding divorce, in contrast to the actual conduct of the parties thereafter, was a true reflection of the parties’ intentions.

The law is clear that even where the written contract prohibits a non-written modification, it may be modified by subsequent oral agreement. The Supreme Court in Wagner, supra, held that proof of oral modification of a written contract does not have to be expressed in words. It may be inferred from the acts and declarations of the parties. Such is the case here, with regard to decedent’s and Ms. Dechant’s conduct. Clear and convincing evidence as to the PSA’s lack of enforceability is deduced from Mr. and Ms. Dechant continuing to live together for the majority of time after the PSA was executed, from decedent never assuming exclusive possession of the home, and from neither spouse ever initiating divorce proceedings.

Moreover, the PSA is unenforceable here because the triggering event for sale of the marital residence was, according to the terms of the PSA contract, a divorce. However, no divorce ever occurred, and no divorce proceedings were even initiated. The relevant language of paragraph nine states: “The parties intend to list the residence for sale within five (5) years from the date of the divorce...” No alternative was provided to implement the PSA should a divorce not occur. If decedent and Ms. Dechant had truly desired to resolve all property issues by way of the PSA, whether they divorced or remained married, then they would have and/or should have chosen another triggering event, such as five (5) years from the date of the execution of the PSA, as an alternative for listing the marital residence for sale.

CONCLUSION

For all of the reasons discussed above, our factual and legal analysis yielded the inescapable conclusion that the property was held by decedent and Ms. Dechant as tenants by the entireties as of Mr. Dechant’s death in May, 2009. Moreover, it is clear that the entireties status was not legally extinguished by any enforceable provisions of the 2006 PSA that the spouses executed.

Accordingly, we respectfully submit that our order of December 1, 2010, denying and dismissing plaintiffs’ petition for partition and for enforcement of the PSA, should be affirmed.

      . James Dechant is the executor of his father’s last will and testament, and brought this action individually, along with his sister Lori Tyler, as well as in his capacity as executor. Ms. Tyler was not present at the trial.

      . Plaintiffs’ matters complained of on appeal are mis-numbered; plaintiffs’ number 10 should have been number 9.

      . Paragraph nine of the PSA reads in full as follows: “A. real estate ~ The marital residence located at 6335 Femwood Avenue, Bensalem, PA 19020 shall [sic]continue to be owned jointly by the parties, except that husband shall have sole and exclusive possession from and after August 20,2006. Further, husband shall pay the mortgage and taxes and maintain the general condition of the [sic] without incurring any major expenses. The parties intend to list the residence for sale within five (5) years from the date of the divorce and divide the net proceeds of the sale, after all fix-up and selling costs equally; i.e. (50%) fifty percent to each party.”

      . We did not discount James Dechant’s testimony that he had conversations with his father over the years about the relationship between decedent and Ms. Dechant. However, the occurrence of such discussions, in light of the testimony as to actual conduct, did not validate the PSA or require its enforcement.

      . Even assuming arguendo that plaintiffs are third party beneficiaries of the PSA, as they assert, our finding that the PSA is unenforceable as to the sale of the marital home renders this assertion irrelevant. Additionally, contrary to the assertion of plaintiffs, the integration clause contained*! within the PSA does not, nor should it, in any way impact our analysis of the enforceability of any provisions of the PSA.


source: Caselaw Access Project

author: LASH, J.,

license: Public Domain

text:
    Berryman v. Berryman

      Nuria Sjolund, for plaintiff.

      Jeffrey R. Boyd, for defendant.
    March 31, 2011
   LASH, J.,

This court held a child custody trial on March 24, 2011. The court enters the following findings of fact:

I. FINDINGS OF FACT

1. Plaintiff, James Berryman (hereinafter “father”), is an adult individual who currently resides at 205 Mine Street, Mertztown, Berks County, Pennsylvania 19539.

2. Defendant, Belinda Berryman (hereinafter “mother”), is an adult individual who currently resides at 425 Hahns Dairy Road, Palmerton, Pennsylvania 18071.

3. The parties are the natural parents of two (2) minor children, Dylan J. Berryman, bom May 5, 1998, and Alyx L. Berryman, bom May 25, 2000, (hereinafter “minor children”).

4. The minor children were bom during the marriage of the parties.

5. The parties were married on July 20, 1996 and separated on July 1, 2010, when mother moved from the marital residence to her current address.

6. Mother currently resides with her paramour, Matthew Steinmetz, his daughter, Makayla Smale, and his grandmother, who owns the house.

7. Mr. Steinmetz is the putative father of another child, Marissa Steinmetz, 6 years old. Makayla and Marissa have separate mothers. Mr. Steinmetz has been denied visits of Marissa by the mother and is now contesting paternity.

8. Mother and Mr. Steinmetz are expecting a child together, due in approximately five (5) months.

9. Father resides with the minor children.

10. Father currently resides in the Brandywine Heights School District. Mother currently resides in the Palmertown Area School District.

11. The parties reside approximately 45 minutes apart.

12. Father is self-employed as a truck driver, working Mondays throughFridays, from 9:00 a.m. to approximately 4:00 p.m. to 5:00 p.m.

13. The minor children are finished with school at approximately 2:50 p.m. since father has not returned from work by that time, the minor children are cared for by the paternal grandparents, usually at father’s home until he arrives. The grandparents return to father’s house the next morning to enable father to leave for work, sometimes as early as 3:00 a.m.

14. Mother is self-employed working from her home as a wholesale travel consultant and as a secretary in a small engine repair business, her hours being Monday through Friday from 9:00 a.m. to 2:00 p.m. Her work schedule is flexible and light as the businesses are of recent origin, permitting her to adjust her hours to accommodate the minor children’s schedules. Mother is also collecting unemployment benefits.

15. Father filed the above-captioned custody action in conjunction with his divorce complaint on or about August 5,2010.

16. On September 3, 2010, this court issued a temporary order of court providing, among other things, that the parties would share legal custody, that father would have primary physical custody, with the minor children attending the Brandywine Middle School, and with mother to have partial custody three (3) weekends each month, from Fridays at 4:00 p.m. to Sundays at 6:30 p.m., provided that the Friday of mother’s weekends falls within the month.

17. Both households have sufficient accommodations to rear the minor children.

18. The minor children are both doing well in school. Additionally, the minor children engage in sports, with Dylan being an avid football player and Alyx enjoying volleyball and swimming.

II. DISCUSSION

Both parties seek primary custody. In making disposition, this court considered the testimony of the parties, mother’s paramour, Matthew Steinmetz, father’s aunt, Ann Herman, Alyx’s guidance counselor at school, Heather Kulp, the minor children’s psychological counselor, Louise Sander, friends of father, Howard and Kimberly Moyer, the in camera testimony of the minor children, and the documents submitted as exhibits.

Mother testified regarding her strong love and affection, as well as her commitment to the minor children. She set forth that when the parties resided together, she was the sole caretaker of the minor children, providing all the daily maintenance. With little exception, it was always she who handled the medical and dental appointments, attended school meetings, and helped with homework. For the most part, father was unavailable due to his extensive work schedule as a truck driver. Father would leave early in the morning and return late at night, sometimes staying for as little as two (2) hours, then would be back on the road. He often slept in his tractor, and could be gone for days.

In her current situation, mother has a very flexible schedule, as does her paramour, both of whom can attend to the immediate needs of the minor children. They have ample room at the house. The minor children get along well with Mr. Steinmetz’s daughter, Makayla. There is also plenty to do at the house, as the couple like to engage in outdoor recreational activities, including boating, snowboarding, and four-wheeling.

Mother expressed concerns about father’s capacity to properly parent the minor children. For one, she believes he is still a part-time parent due to his work schedule. While father states that he has switched jobs and now is able to be home from work much earlier, around 4:00 p.m. to 5:00 p.m., mother questions whether this is actually the case. Mother believes that the paternal grandparents are required to perform many of the parental chores.

Mother has additional concerns about the paternal grandparents watching the minor children. She relates incidents where the paternal grandfather was inappropriate toward her, making unwanted sexual advances. She does not trust the grandfather, and opposes the grandfather being alone with her daughter. She points out that the parties agreed in August of 2010 on the record that father would ensure that grandfather was never alone with the daughter, but that father has breached this promise.

Mother is also concerned about father’s demeanor. She accuses him of being short tempered, yelling at her in front of the minor children, and yelling at the minor children directly. The minor children and, in particular, the parties’ daughter, are particularly sensitive to this browbeating. Some of Alyx’s difficulties relate to school work, as she has more difficulty than her brother in acquiring good grades. According to mother, father is very hard on Alyx, causing her to be afraid to fail, and making her think that she has to have 100 percent scores on every test. This has caused her extreme anxiety, which is being addressed in counseling.

Mother also points out that father refuses to cooperate with her. She and Mr. Steinmetz testified that they have made an effort to try to work together with father, to meet and perhaps engage in recreational activities together, to help form a “blended” family, and to make it easier for the minor children, but father has refused.

Mother believes that the minor children want to reside with her. She states that Alyx has related to her that she wants to attend the Palmerton School District immediately so that she can start making new friends. Dylan, who wants to be a pro football player, would be able to continue with football in Palmerton School District. Unfortunately, according to mother, Brandywine Heights School District does not offer football programs.

Mother also discussed father’s involving the minor children in the parties’ domestic difficulties. She testified that father has discussed spousal support issues, and the status of the marital home, matters which should never involve the minor children.

Louise Sander, the minor children’s therapist, also testified. She related her concerns regarding Alyx’s anxiety, which she considered to be substantial. She corroborated mother’s testimony regarding Alyx’s fear of failure and need to please her father.

Father stresses the continuity and stability available for the minor children at his home. He continues to reside in the marital residence and will do so in the foreseeable future. The minor children enjoy Brandywine Heights School and are doing well there. In fact, Alyx has been on the honor roll for the first two (2) quarters of the 2010-2011 school year, the first time she has reached this achievement.

Due to the changes in his work schedule, father is available for the minor children and is able to provide them with all the needs of a parent. He is very invested in their schooling, assisting with homework and overseeing their success. He is also involved recreationally, enjoying immensely Dylan’s summer football programs, for example.

Father agrees that there are some periods of time when the paternal grandparents watch the minor children. He does not believe he should be penalized because he maintains a full-time work schedule, particularly since mother’s availability is due to her being terminated from her employment, as both she and Mr. Steinmetz, who met at their mutual employment, were laid off due to their fraternization. He contends that the paternal grandparents are proper caretakers, and denies that the paternal grandfather would cause any problems for Alyx.

Father denies that he is excessive in his supervision. He believes that the minor children want to reside with him and that they are doing very well under his care. He points out that Alyx is doing better in school than ever, which belies the notion that his behavior is having an adverse impact on her.

Father points out that the minor children’s issues stem from mother’s decision to move from the marital home and take up residence with her paramour, approximately 45 minutes from the marital home. This caused a major disruption in the minor children’s lives. He believes additional disruptions, such as relocating, enrolling in a new school district, and having to make new friends, would also be harmful to the minor children.

Father points out that the continuing animosity between the parties stems from mother and her paramour. Mr. Steinmetz enjoys meddling in the parties’ affairs, sending father an inordinate number of text messages which serve no useful purpose. Further, it was Mr. Steinmetz who initiated the conversations with the minor children about the domestic issues, stating such things as “your father’s not going to be able to keep his house.” Father stated he was only responding to questions from the minor children, who learned these things from Mr. Steinmetz. Father also notes that Mr. Steinmetz is an agitator, upsetting Dylan by calling him “young James,” also calling father “Pops,” and on one occasion, tweaking father’s cap, causing him to accidently strike father in the face, resulting in criminal harassment charges being lodged. Mr. Steinmetz would also playfully pull Dylan’s trousers down. The minor children’s counselor, Ms. Sander, acknowledged some of Mr. Steinmetz’s indiscretions, and advised him to desist from his antics. He, apparently, has complied with this directive.

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

Mother has a strong bond with the minor children, developed through nurturance and her hands on involvement over the years. The minor children are very comfortable with her and enjoy the recreational activities at her new residence. She is more lenient in discipline than father. She has a strong commitment to the minor children’s schooling and in the continuation of their sporting activities.

Despite the limitations caused by his work schedule, father appears to also have a good bond with the minor children. Since the parties’ separation, he has adapted to his new status as a single father, becoming hands on in the care and supervision of the minor children. His relationship with Dylan appears particularly strong. However, the relationship with Alyx is more complicated, due to her sensitive nature. Father’s method of supervision of school related issues has borne fruit in the form of honor roll level grades, but at what cost? Alyx exhibits self doubt. Her view of herself can be further compromised with negative reinforcement. It is also apparent that Alyx does not respond well to intensity. If these concerns are not rectified, neuroses could develop which would affect Alyx’s ability to function as an adult.

Father appears to want what is best for his minor children and believes that his methods serve that purpose. However, with regard to Alyx, if he would adapt his method to account for her sensitive makeup, emphasizing positive reinforcement, making it known to her how valuable, important, and special she is, helping her to acquire self-discipline in lieu of receiving external discipline from him, it would help Alyx in her psychological development and would also increase her capacity to do well in school. Father should seek assistance from Alyx’s counselor on this issue.

Regarding the concerns of continuity and stability, we agree with father that he is best able to continue to provide these important factors for the minor children. The minor children enjoy residing in the Brandywine School District and thrive there, and if residing with father they would live in the same house and continue to maintain the same general lifestyle to which they are accustomed. Mother, however, requests that the minor children be uprooted to accommodate her new lifestyle. While she never “abandoned” the minor children as father suggests, she has chosen to move a substantial distance away, into a new school district, to reside with another man. This decision has cost her a marriage and full-time employment. Most importantly, the minor children have had to learn to cope with the reality of residing in two (2) households.

Further, the level of stability in mother’s household remains in question. Mother has moved from a long term intact marriage into a relationship with a substantially younger man who is residing in the home of his grandmother. The couple have experienced a termination from their employment and are now collecting unemployment benefits while they attempt to start up two (2) separate businesses together. Mother’s paramour has two (2) children from two (2) other relationships and now is expecting his third child, from this, his third relationship.

There is evidence that there have been some issues between mother and her paramour. On one occasion, father received a text message from mother stating that she was being “kicked out” from the house by her paramour. Mother admitted that she sent the text, but denied that she was ever kicked out or that there was ever any concern that she might be kicked out. Given the clear message of the text, mother’s statement lacks credibility. On a second occasion, mother, for a period of a couple of days, failed to make contact with father or the minor children, which father found to be very unusual. When mother resumed contact, she never fully explained the reason for her hiatus, except to say, “I took too many pills.”

Since mother has committed to the relationship with her paramour, his capacity as a stepparent must also be evaluated. New details were provided in this area at the time of trial. We do know that Mr. Steinmetz enjoys recreation. He has also been portrayed as immature, being consistently involved in sophomoric hyjinks, which establish him as a pest and annoying. We must wonder whether Mr. Steinmetz has the maturity needed to accept the responsibilities of performing the difficult duties of a stepparent to these two (2) children, not to mention the requirements soon to be imposed as the father of a newborn infant.

It is also clear that these two (2) minor children need frequent contact with both parents. Both parents acknowledge this fact. Unfortunately, a schedule involving day-to-day interaction between households is not practical, due to the distance between the parties’ residences.

The only workable solution is to provide father with primary custody during the school year and mother with primary custody during the summer months, with the noncustodial parent to have three (3) weekends per month and one (1) weeknight. Having the minor children reside with mother during the summer achieves several purposes. First, the minor children will be watched by a parent, not by a grandparent. Secondly, the recreational opportunities emphasized by mother and her paramour could be enjoyed by the minor children on the summer weekdays. Third, the important goal of maintaining continuity and stability is met. The minor children would be permitted to reside in the same home and continue in Brandywine Heights School District where they are doing well. Most importantly, over the course of the year, and excluding when the minor children are sleeping or at school, the parties would each have approximately the same level of contact with the minor children. If, conversely, the minor children resided with mother during the school year and with father during the summer, mother’s weekdays during the school year would consist of evenings after school and father’s weekdays during the summer would also be limited to evenings, due to his work schedule, with the minor children being primarily cared for by the paternal grandparents during the day.

Two (2) other comments are appropriate. First, there has been no evidence to suggest that the paternal grandfather poses any threat to Alyx. We accept mother’s testimony that the paternal grandfather made inappropriate advances toward her. However, there is no basis to find that the grandfather’s misconduct toward an adult female unrelated by blood would translate into similar contact toward a minor granddaughter. We also note that grandfather’s conduct began prior to the birth of the minor children and that even though these things took place, mother, nevertheless, permitted the grandparents access to the minor children, at least until the separation. That being said, at a previous court hearing, it was everyone’s understanding that father would ensure that the paternal grandfather would not be alone with Alyx, and that, nevertheless, he continued to allow this contact. He attempted to explain this away semantically, but the fact is he understood what was required and failed to honor the requirement. The conduct of father in disregarding the clear understanding of the parties was done in bad faith and is subject to a sanction under 23 Pa.C.S.A. § 5339 in the form of counsel fees, which we impose in the amount of five hundred dollars ($500.00).

The second comment is a reiteration of our concern for Alyx’s emotional health. Counseling shall continue, with father to participate. Father shall also be in contact with the guidance counselor at the school district to help him to seek out and develop approaches to his education supervision which will contribute positively to Alyx’s psychological development, as well as her prosperity as a student.

[We add one final note. Subsequent to the trial, counsel for the parties contacted the court regarding one or both of the parties, and/or Mr. Steinmetz, having improper communications with the minor children regarding their testimony and the general testimony of the trial. Through their counsel, each party complained that the other was the party at fault for these communications. These circumstances did not affect the decision of this court except to add a sentence in the order to require that the parties, Mr. Steinmetz, and other significant others shall refrain from any further conduct. It goes without saying that this conduct is inappropriate and borders on reprehensible. Any further conduct of this manner will be a violation of the within order and subject to sanctions, which could include restrictions involving the minor children.]

We enter the following order:

ORDER

And now, March 31, 2011, after trial held, custody of the parties’ minor children, Dylan J. Berryman, bom May 5, 1998, and Alyx L. Berryman, bom May 25, 2000, (hereinafter “minor children”), shall be as follows:

1. The parties shall share legal custody.

2. Plaintiff, James Berryman (hereinafter “father”), shall have primary physical custody of the minor children during the school year. The school year is defined as commencing one (1) week prior to the start of the school year through one (1) week after the expiration of the school year.

3. Defendant, Belinda Berryman (hereinafter “mother”), shall have primary custody of the minor children during the summer months.

4. The non-custodial party shall have partial custody of the minor children:

a) three (3) weekends each month from Fridays at 4:00 p.m. to Sundays at 6:30 p.m., the weekends to be defined to include weekends where the Friday falls within the month; and
b) one (1) week night per week from 5:00 p.m. to 8:00 p.m., the weeknight to be agreed upon by the parties or, in lieu of an agreement, on Wednesday nights.

5. Mother shall have mother’s day each year and father shall have father’s day each year from 10:00 a.m. to 6:30 p.m.

6. The parties shall alternate Thanksgiving day each year, with mother having Thanksgiving day on odd-numbered years and father on even-numbered years, the times to be agreed upon by the parties or, in lieu thereof, from 10:00 a.m. to 8:00 p.m.

7. The parties shall alternate the Christmas holiday each year, such that during odd-numbered years, father shall have custody on Christmas Eve from 1:00 p.m. to Christmas day at 1:00 p.m., with mother to have Christmas day from 1:00 p.m. to December 26 at 1:00 p.m., with the schedule to reverse on even-numbered years.

8. The minor children shall continue in counseling. Additionally, father shall participate in group counseling with Alyx to enable father and Alyx to work through any issues regarding their relationship, including but not limited to, the method of education supervision.

9. Neither party, nor Matthew Steinmetz, nor any prospective paramour or spouse of either party, either directly or indirectly, shall have any discussions with either minor child about any court proceedings, including divorce, custody, support, or any other matters arising from the litigation, any financial matters involving the parties at any time, nor shall they discuss with the minor children any testimony the minor children may have provided to the court or that they will provide, nor attempt to influence the minor children in any way in these areas.

10. If either party is planning to relocate with the child(ren) and the relocation will significantly impair any other party’s exercise of their custodial rights, the relocating party is obligated to provide a detailed notice and counter-affidavit by certified mail, return receipt requested, to all individuals who have custody rights to the child(ren) at least sixty (60) days in advance of the proposed relocation in compliance with 23 Pa. C.S.A. Section 5337.

11. Under the authority of 23 Pa.C.S.A. § 5339, this court awards mother the sum of five hundred dollars ($500.00) in counsel fees from father for reasons set forth in the attached opinion.

12. The attached appendix shall be made a part of the within order.

13. This order shall be considered a final order finally resolving the issues raised in the complaint for custody filed by father.

APPENDIX TO ORDER

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

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

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

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

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

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

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

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

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

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

9. Weekend and evening visitation shall be subject to:

A. Arrangements will be worked out beforehand between the parties without forcing the children to make choices and run the risk of parental displeasure. However, the children shall be consulted as to their schedules when appropriate.

B. Visitation rights shall be exercised at reasonable hours and under circumstances reasonably acceptable to the other party and to the need and desire of the minor children.

C. If a party finds himself or herself unable to keep an appointment, he or she should give immediate notice to the other party, so as to avoid subjecting the children to unnecessary apprehension and failure of expectations.

D. The party having custody of the children should prepare them both physically and mentally for the transfer of custody to the other party and have them available at the time and place mutually agreed upon.

E. If either party or a child has plans which conflict with a scheduled visit and wish to change such visitation, the parties should make arrangements for an adjustment acceptable to the schedules of everyone involved. Predetermined schedules are not written in stone, and both parties should be flexible for the sake of the children.

F. If a party shows up for a visit under the influence of alcohol or drugs, the visit may be considered forfeited on those grounds alone.

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


author: FRITSCH JR., P.J.,

text:
    Mark Patton General Contractor, Inc. v. Donegal Mut. Ins. Co.

      William M. Cowan Jr., for plaintiff.

      Andrew L. Riemenschneider, for defendant.
    March 22, 2011
   FRITSCH JR., P.J.,

The matter before us is the appeal of Mark Patton General Contractor from our order dated January 5, 2011, granting summaiy judgment in favor of Donegal Mutual Insurance Company. This opinion is filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).

BACKGROUND

Mark Patton General Contractor, Inc. (hereinafter “appellant”) was contracted to perform construction work at St. Gregarious Church in Bensalem, Pa. in June of 2008. Appellant obtained a comprehensive insurance policy (hereinafter “the policy”) from Donegal Mutual Insurance Company (hereinafter “appellee”) that was in effect at all times relevant to this action. On July 18, 2008, the roof collapsed at St. Gregarious Church, causing damage to the building and equipment at the construction site. Appellant admitted to negligently installing trusses that caused the roof collapse. Following the incident, appellant filed a claim with appellee for coverage, which appellee denied. Appellant then filed a declaratory action to determine the amount of coverage, if any, required under the policy. Following a brief period of discovery, the parties filed cross-motions for summaiy judgment on stipulated facts. On January 5,2011, we granted summary judgment in favor of Appellee and issued a memorandum opinion explaining our decision. Thereafter, appellant filed a notice of appeal on February 3, 2011.

ISSUES RAISED ON APPEAL

Upon request of this court pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), appellant has filed a statement of the errors complained of on appeal setting forth the following allegations, verbatim.

1. The Court of Common Pleas of Bucks County erred in its determination that the roof collapse, even though caused by plaintiff’s negligence, did not constitute an occurrence and/or accident for purposes of his insurance policy under Pennsylvania law.
2. The Court of Common Pleas of Bucks County erred in its determination that the language of the insurance policy precludes plaintiff from any recovery whatsoever under his policy of insurance. Specifically the language under 16(b)4 of this policy “exclusions” constricts the exclusions to “that particular part of property” upon which operations are being performed. Since plaintiff was only performing work on the trusses of the building, and any and all collateral damage (damage to all other property except the trusses themselves) should be covered under the insurance policy.
3. The court of common pleas erred in its determination that the language of 16(b)4 is not ambiguous. The aforesaid section is in fact ambiguous and should therefore be construed against the insurance company who drafted the terms and conditions of the policy.
4. The court of common pleas erred in its determination that exclusion 4(c)2 precludes plaintiff from any recovery whatsoever under his policy of insurance. Specifically, the language of 4(c)2 conflicts with the language of 16(b)4 and the insurance policy language should be interpreted in a manner most favorable to the policyholder, plaintiff.

DISCUSSION

The standard for summary judgment, as set forth in Pennsylvania Rule of Civil Procedure 1035.2, is:

After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as matter of law
(1) Whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa. R.C.P 1035.2.

In the present case, no material facts are at issue and the parties requested that this court decide the issue of liability as a matter of law.

INCIDENT AS AN “OCCURRENCE” UNDER THE POLICY

Appellant argues that this court erred in determining that the roof collapse and subsequent damage do not constitute an occurrence under the policy. It is not in dispute that the policy obtained by plaintiff covers property damage as a result of an “occurrence.” “Occurrence” is defined in the policy as “an accident, including continuous or repeated exposure to conditions which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” Appellant further argues that the roof collapse fits the definition of an occurrence as its admitted negligence resulted in an accident that was neither expected nor intended on its behalf.

Although a definition of “accident” is not provided in the policy, the Pennsylvania Supreme Court has defined the term in the context of litigation surrounding the extent of coverage under an insurance policy. See Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial Union Ins. Co., 908 A.2d 888 (Pa. 2006). The Pennsylvania Supreme Court in Kvaerner held that the definition of an accident that is required to establish an occurrence under an insurance policy cannot include claims based on faulty workmanship. Id. at 335. The court reasoned that claims based upon faulty workmanship “do not present the degree of fortuity contemplated by the ordinary definition of an ‘accident.’” Id. at 336.

In the present case, appellant has admitted to negligently installing the trusses that caused the collapse of the roof. Such admitted faulty workmanship does not constitute an accident or occurrence for purposes of an insurance policy under Pennsylvania law. Although appellant cited several cases from other jurisdictions in support of its argument, we found that Kvaerner is controlling in this matter and as such the admitted faulty workmanship of appellant precludes coverage under the policy.

APPLICABILITY OF EXCLUSION 16(B)(4)

Appellant contends that this court erred in interpreting the language of exclusion 16(b)(4) to preclude any coverage under the policy. Appellant argues that if they are liable under the policy, liability should be limited only to the negligently installed trusses.

Exclusion 16(b)(4)(i) provides that the policy does not cover property damage to the particular part upon which the insured is performing work. Appellant attempts to characterize the particular part of the property in the narrowest terms possible. If we were to apply appellant’s interpretation of the provision, the insured would only be responsible for the damage caused to the negligently installed trusses. We found such an argument unpersuasive as it would unjustly allow the insured to avoid responsibility for the natural consequences of its negligent work and place an unfair responsibility upon the insurance company to cover the bulk of the loss. Furthermore, it would not be logical to differentiate between areas of damage that were caused solely by the appellant’s negligence. Here, appellant was installing trusses to support the roof of the building. The roof collapsed due to appellant’s faulty workmanship causing damage to the trusses, roof, building and personal property beneath it. Under the policy, appellant is not eligible to recover for any damages that occurred as a result of the collapse as those damaged areas were directly affected by appellant’s negligent work.

Exclusion 16(b)(iii) specifically provides that the policy does not cover the restoration, repair, or replacement of property which has been damaged as a result of the insured’s own faulty workmanship. As stated previously, appellant has admitted to faulty workmanship through the negligent installment of the trusses meant to support the roof of the building. The collapse of said trusses resulted in damage to the trusses, roof, building and personal property beneath it. Under the policy, appellant’s admitted faulty workmanship precludes coverage for restoration, repair, or replacement of any property which was damaged as a result of the negligently installed trusses.

AMBIGUITY OF EXCLUSION 16(B)(4)

Finally, appellant contends that this court erred in determining that Exclusion 16(b)(4) is not ambiguous. Appellant argues that the exclusion is in fact ambiguous and should be construed against the appellee.

Ambiguity exists only when a policy provision is reasonably susceptible to more than one meaning. Ryan Homes, Inc. v. Home Indem. Co., 647 A.2d 939, 941 (Pa. Super. 1994)(citing Musisko v. Equitable Life Assurance Soc’y, 496 A.2d 28, 31 (Pa. Super. 1985)). A contract provision is not ambiguous simply because the parties have differing interpretations of its meaning. See Ryan Homes, Inc., 647 A.2d at 941. Pennsylvania courts have upheld similar exclusions in denying coverage for damages as the result of faulty workmanship. See Gene & Harvey Builders, Inc. v. Pennsylvania Mfrs. Ass’n Ins. Co., 512 Pa. 420, 517 A.2d 910 (Pa. 1986). Therefore, we found that exclusion 16(b)(4) is not ambiguous.

APPLICABILITY OF EXCLUSION 4(C)(2)

Appellant argues that this court erred in determining that exclusion 4(c)(2) precludes coverage under the policy. More specifically, appellant contends that exclusion 4(c) (2) is in conflict with exclusion 16(b)(4) and should be inteipreted in favor of the insured.

Exclusion 4(c)(2) states that:

4. This policy does not insure against loss caused by any of the following. However, any ensuing loss not excluded or excepted in this policy is covered:
(c) Faulty, inadequate, or defective
(2) Design, specifications, workmanship repair, construction, renovation, remodeling, grading, compaction;

See page 5 of policy under section 1, Perils and exclusions.

Thus, exclusion 4(c)(2) explicitly provides that the policy does not insure against loss caused by faulty workmanship. In the present case, appellant has admitted to negligently installing the trusses, a form of faulty workmanship, which caused the roof to collapse and subsequently damage the property in question. Based on this admission, appellant is precluded from coverage under the policy.

Additionally, we found that exclusion 4(c)(2) and exclusion 16(b)(4), when read together, are consistent as both preclude coverage under the policy in the event that damage is caused solely by the insured’s faulty workmanship.

CONCLUSION

For the reasons stated herein, we recommend that the present appeal be denied.

      . See page 23 of policy under section 16(b) of “exclusions” regar - ing coverage for damage to property which provides:
      (4) That particular part of any property, not on premises owned by or rented to the insured;
      (i) Upon which operations are being performed by or on behalf of the insured at the time of the property damage arising out of such operations;
      (ii) Out of which any property damage arises; or
      (iii) The restoration, repair, or replacement of which has been made or is necessary by reason of faulty workmanship thereon by or on behalf of the insured.


author: WHERRY., S.J.,

text:
    Haagensen v. Reed

      Janice Haagensen, pro se.

      Jonathan Solomon, for defendants.
    April 13, 2011
   WHERRY., S.J.,

This case was before the court on February 7 and February 8, 2011 for a bench trial. The plaintiff, Janice S. Haagensen, acting also as administratix of the estate of Myrtle S. Haagensen, deceased, initiated this action on June 27, 2006, when plaintiff filed an action in ejectment. The action is based on the premise that the defendants, Betty M. Reed, Edward W. Absersold and Rufus and Annie Hershberger (hereinafter “the Hershbergers”) have been utilizing a driveway located within plaintiff’s parcel of property to gain access to their respective properties.

By way of background, the court will give a brief factual summary: plaintiff, Janice Shelburne Haagensen, acting as administratix of the estate of Myrtle S. Haagensen, deceased, initiated this action on June 27, 2006 against defendants, Edward Abersold and Wallace B. Reed (consequently surrogated upon his death, on June 1,2007, by Betty M. Reed) seeking ejectment of the defendants from a driveway which they use or have used to gain access to their properties.

Rufus J. Hershberger and Annie K. Hershberger purchased a parcel of property (hereinafter “the Reed farm”) from Betty Reed on September 17,2007. The deed of conveyance is on record in the Office of the Recorder of Deeds of Lawrence County, Pennsylvania, at document no. 2007-10177. Since this lawsuit was initiated prior to the property being sold, an amendment to the agreement of sale was also entered into, whereby Betty Reed agreed to indemnify the Hershbergers against costs associated with defending this action.

On February 13,2008, the Hershbergers filed a petition to intervene, after the plaintiff filed a request with this court to bar the Hershbergers from using the driveway. Pursuant to the Pa.R.C.P., Rule 2327, this court granted the Hershbergers’ petition. Rule 2327 provides as follows:

At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, if

(2) such person is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof; or...
(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. Rule 2327(2), (4).

The court granted the Hershbergers’ request based on the fact that they had purchased the Reed farm from Mrs. Reed subsequently to this action being initiated. As a result of that purchase, the Hershbergers are in a position where they may be adversely affected by these proceedings and, as such, must be afforded the opportunity to defend any right or interest they may have in regards to the property in question.

The sole issue before the court for determination is based on a dispute between the parties regarding access to driveway stemming off of New Road in the direct vicinity of the boundary line between North Beaver Township and Little Beaver Township, all of which is located within Lawrence County. The deeds pertaining to the relevant property of the parties read as follows:

Regarding the plaintiff’s property, the premises are situated, bounded and described as follows:

All that certain parcel... lying and being in North Beaver Township, beginning at an iron pin in the intersection of the center line of the public road leading from Moravia to Petersburg, Ohio, with the center line of the Mt. Jackson-Mt. Aire Road;

Thence, Eastwardly by the center line of the first mentioned road to land now or formerly of Loyal W. Gilkey;

Thence, Southwardly, by said Gilkey line to the Northerly line of Little Beaver Township;
Thence, Westwardly by said Little Beaver Township line to the aforementioned Mt. Jackson-Mt. Aire Road, sometimes called the Moravia-Mt. Aire Road;
Thence, Northwardly by last mentioned road to the point, the place of beginning, containing 70 acres more or less.

Regarding Mr. Absersold’s property, the premises are situated, bounded and described as follows:

All that certain parcel... lying and being in Little Beaver Township, beginning at the Southwest comer thereof, adjoining property now or formerly of Robert Miller;
Thence north 2Vi° west 61.6 perches to a post;
Thence north 87° east, 132.8 perches to a post on the line of property now or formerly of Samuel B. Hayes;
Thence south 1%° west, 6.6 perches to a jack oak tree;
Thence south 87/2° degrees west along the line of property now or formerly of Samuel Witherspoon and Robert Miller, 131.5 perches to the place of beginning.

Regarding the Hershberger’s property, the premises are situated, bounded and described as follows:

All that certain parcel...lying and being in Little Beaver Township, beginning at a post at the Northeast comer thereof, thence south 2° 30’ west 61.8 perches to a stone along the west line of the property formerly of A.H. Stewart’s Heirs, now or formerly of Leslie;
Thence, Westwardly along the north line of land formerly of Samuel Witherspoon, south 89° west 130.6 perches to a jack oak tree;
Thence, north Io 45’ east 61.6 perches to a post;
Thence, north 88.5° east along the south line of property formerly of John Kisk and formerly of Dunn and property formerly of William H. Leslie.

Defendants, Mr. Abersold and the Hershbergers, own property bordered on the north by the plaintiff. New Road runs along the entire western border of the parcel of Mr. Abersold’s property described above, until it makes a sharp turn to the east, thereby dividing Mr. Abersold’s property from the plaintiff. New Road then makes another sharp turn to the north continuing along the western edge of plaintiff’s property. These two sharp turns have been commonly refered to as the “dog’s leg” throughout the hearings. At the point where New Road makes a second sharp turn to the north, a driveway begins. This driveway runs east and divides the north-eastern comer of Mr. Abersold’s property and the plaintiff’s property. The driveway continues east, thereby dividing the northwest comer of the Reed farm from the plaintiff’s property until it turns south to the Hershberger’s farm house. The driveway and surrounding undeveloped property is the subject of this action in ejectment, as both the plaintiff and the defendants claim title to the driveway.

It is clear from a literal interpretation of the parties’ respective deeds that the lots were situated in such a way as to form a “T” where the three properties meet. From all of the exhibits offered into evidence, the court determines that the driveway was located along the top of the “T” and followed the municipality line, until it turned south towards the Hershberger’s farm house. The real issue is whether or not the driveway in question ran north or south of the North Beaver-Little Beaver municipal boundary.

The parties’ respective positions can be summarized as follows: plaintiff asserts title to the driveway and the surrounding area of ground measuring 48’x700’x720’, and the right to immediate possession thereof. Plaintiff’s claim is based on the contention that the dog’s leg in New Road lies solely within North Beaver Township, as portrayed in the North Beaver Township Road Map (plaintiff’s exhibit B), which was prepared by the Lawrence County planning department, and the Lawrence County tax assessment map (plaintiff’s exhibit F). Plaintiff additionally refers to plaintiff’s exhibit F-l, an actual aerial photograph, which seems to be relied on in creating the tax assessment map.

The defendants, on the other hand, also claim title to the driveway and the surrounding land. They base their arguments on the descriptions of their respective properties as set forth in the accompanying deeds. Defendants also argue, in the alternative, that even if plaintiff does hold title to the driveway and surrounding property, the defendants have acquired title to the same through adverse possession.

“Ejectment is an action filed by a plaintiff who does not possess the land but has the right to possess it, against a defendant who has actual possession.” Siskos v. Britz, 567 Pa. 689, 699, 790 A.2d 1000, 1006 (Pa. 2002) (citing Soffer v. Beech, 409 A.2d 337 (1979); 22 Standard Pennsylvania Practice 2d § 120:1). In an action in ejectment, the plaintiff has the burden of establishing a right to immediate exclusive possession of the property in question. Doman v. Brogan, 592 A.2d 104, 108 (Pa. Super. 1991); Hallman v. Turns, 482 A.2d 1284, 1287 (Pa. Super. 1984). A court may only grant recovery based on the strength of plaintiff’s title to the property, not the weakness of defendant’s title. Doman, 592 A.2d at 108. Thus, the essence of any action in ejectment is the “plaintiff’s ability to identify, by a preponderance of the evidence, the boundaries of a parcel of land to which they are out of possession but for which they maintain paramount title.” Id. (citations omitted) Where a plaintiff is unable to establish definite and certain evidence of the boundary of the property in dispute, by adequate legal proof, her action fails and the requested relief cannot be granted. Hallman v. Turns, 482 A.2d 1284, 1288 (Pa. Super. 1984)

This court must initially note that it has already been determined that the defendants are clearly in possession of the driveway and surrounding area of land. See defendants’ exhibit 11 (affirmed Haagenson v. Reed, et al., No. 1734 WDA 2004, slip op. at 4 (Pa. Super, filed June 22, 2005)). As previously stated, the sole issue is whether the driveway and surrounding land lie to the north or south of the North Beaver-Little Beaver municipal line.

Plaintiff’s sole witness was Robert Wright Grine, II, a registered professional surveyor in the Commonwealth of Pennsylvania. Mr. Grine testified regarding the ability to use a municipal line as a monument for the purposes of surveying a land (N.T. Feb. 7, 2011, p. 28), and that the Haagensen Deed (see plaintiff’s exhibit H) calls for the North Beaver-Little Beaver municipal line as its southern boundary. (N.T. Feb. 7, 2011, p. 31) He also testified that according to the assessment maps for Lawrence County, James Abersold’s home straddles the municipal line, and therefore is located partially in Little Beaver and partially in North Beaver. (N.T. Feb. 7,2011, pps. 38-39). Mr. Grine went on to authenticate the validity of the assessment map by describing the process by which such maps are created. (N.T. Feb. 7, 2011, pps. 42-43)

Mr. Grine further testified that according to the Lawrence County assessment maps (plaintiff’s exhibits B, F, and F-l) the dog’s leg in New Road is entirely to the north of the municipal boundary. (N.T. Feb. 7, 2011, pps. 50-51) Mr. Grine opined that the defendants could not hold title to the driveway and surrounding land as then deeds fail to indicate that any of the defendants’ properties are located in North Beaver Township, the maps prepared by the Lawrence County Planning Department indicate that the driveway is in North Beaver Township and the defendants only pay taxes in Little Beaver Township.

On cross-examination, counsel for the defendant established that a tree line exists on the north side of the driveway and there is ongoing agricultural activity to the south. (N.T. Feb. 7, 2011, pps. 76-77) It was also established that no physical markers throughout the property in question that indicate where the municipal boundary actually is located. (N.T. Feb. 7, 2011, p. 86)

The defendants called their own expert witness, Ross Taylor, who is a professional licensed surveyor and is currently employed as the managing partner of Frank B. Taylor Engineering. Mr. Taylor was hired by Mr. and Mrs. Reed to conduct a survey of their property in 2002. In an effort to complete a proper survey, Taylor engineering physically went to the property in question, located existing points and features on the ground and reconciled the same with the legal descriptions provided in the deeds to the parties’ properties. (N.T. Feb 7, 2011, pps. 135-136)

Mr. Taylor testified that when the Reed’s deed (defendant’s exhibit 2) was reconstructed on the land, a discrepancy existed, whereby the end point in the deed was 20 feet from the initial starting point or first call. Using existing iron pins located on the north side of the property, as well as an old fence line that runs east and west, Mr. Taylor was able to justify the deed and reconcile the physical description called therein with the actual layout of the property. (N.T. Feb. 7, 2011, pps. 138-139) By reconciling the parameter, Mr. Taylor was able to correlate actual acreage of the Reed Farm with that set forth in the corresponding deed and with surveys performed on defendant Edward Abersold’s property. (N.T. Feb. 7, 2011, p. 139, 143)

Based on the actual surveys performed by Taylor engineering, Mr. Taylor testified that the North Beaver-Little Beaver municipal line constitutes the northern boarder of the defendants’ property. (N.T. Feb. 7, 2011, pps. 144-145) The existence of a tree line and the remnants of a fence line running along the northern edge of the defendants’ properties were indicative of the same, with said trees and fence lying on the northern side of the driveway in question. (N.T. Feb. 7, 2011, pps. 150) Based on all of these facts, Mr. Taylor concluded that the north boundary of both the Reed farm and Mr. Abersold’s neighboring property was the old fence line. This fact is supported by defendant’s exhibit 7, a United States Geological Survey map, which portrays the dog’s leg in New Road as running along the municipal boundary and the driveway being a continuation thereof to the east.

Mr. Taylor also offered testimony to explain the discrepancy between the survey performed by Taylor engineering and the county assessment maps, previously offered into evidence by the plaintiff. Mr. Taylor stated that as the municipal engineer for both North Beaver and Little Beaver Townships, such maps are not accurate in regards to actual boundaries and are in no way authoritative. (N.T. Feb. 7, 2011, p. 156-157) The court notes that plaintiff’s exhibit B expressly states “[property lines as depicted on this map are for visual reference only and are not to be utilized in lieu of an actual survey.” (emphasis added)

The defendants’ case included additional testimony, presented through various witnesses, establishing that the driveway in question had been used by various owners of the Reed farm to gain access to the corresponding residence for over 40 years. (See e.g. N.T. Feb. 8, 2011, pps. 20, 77, 86, 99) The defendants also called James Abersold, whose trailer was previously described as being located on the municipal line by plaintiff’s expert, Mr. Grine. James Abersold testified that he has never paid any tax to North Beaver Township and that his property is located solely in Little Beaver Township as determined by the Lawrence County’s assessors office. See defendant’s exhibit 19. (N.T. Feb. 8, 2011, p. 68)

After carefully considering all the testimony offered by the parties and the evidence presented, the court concludes that the plaintiff has failed to meet her burden of establishing that she has a right to immediate exclusive possession of the property in question. Doman, supra. Plaintiff has failed to offer legal evidence of what she purports the boundaries to be, and relies totally on the argument that the defendants do not own the property. Such an argument is improper as recovery is based on the strength of plaintiff’s title to the property, and not the weakness of defendant’s title. Id.

The only piece of substantive evidence utilized by the plaintiff are assessment maps drafted by the Lawrence County Planning Department (plaintiff’s exhibits B, F and F-l) that portray the dog’s leg in New Road and the driveway as being situated to the north of the North Beaver-Little Beaver municipal line. Yet, exhibit B expressly indicates that the property lines depicted on the map are only a visual reference and can not be relied on in lieu of an actual survey. Additionally, the court notes that plaintiff’s expert witness, Mr. Grine, although thoroughly educated in his field of expertise, did not conduct an actual survey of the land. (N.T. Feb. 7, 2011, p. 70)

Defendants, on the other hand, clearly establish through the testimony of Mr. Taylor that they do, in fact, own the driveway. A proper survey was conducted, wherein Taylor engineering physically identified existing monuments on the property to reconstruct/reconcile the physical descriptions in the applicable deeds. The court finds that the North Beaver-Little Beaver municipal line borders the defendants’ property on the north edge, and the same is represented by an old fence little located to the north of the dog’s leg in New Road and the driveway in question. The court further finds that Mr. Abersold holds title to the initial portion of the driveway stemming off of New Road, and likewise, the Hershbergers hold title to the remaining portion the driveway.

This finding is consistent with the corresponding deeds to the parties’ properties as the Haagensen deed describes the property being located entirely in North Beaver Township and the Abersold deed and Hershberger deed describe the applicable property as being located entirely in Little Beaver Township. The court additionally notes that the fence-line running to the north of the driveway is representative of the North Beaver-Little Beaver municipal boundary.

Consistent with this opinion, the court will enter the following order dismissing plaintiff’s action in ejectment:

ORDER OF COURT

And now, April 13, 2011, with this matter having been before the court on February 7,2011 and February 8,2011 for a bench trial with Janice S. Haagensen appearing pro se and Jonathan Solomon, esquire, appearing on behalf of the defendants and consistent with the attached opinion, it is hereby ordered and decreed as follows:

1. Plaintiff’s action in ejectment is dismissed.
2. Edward Abersold and Rufus and Annie Hershberger are hereby granted exclusive right, title and interest to the property described as follows:
a. Beginning at the point of intersect at the bend in new road with the west edge of the driveway leading towards the Reed Farm;
b. Thence long the North edge of said driveway extending in an Eastwardly direction along the length of an old barbed-wire fence, with the same being the Southern edge of the Haagensen’s property, to a point on the east line of the Haagensen property.
3. The prothonotary is directed to serve a copy of this order and opinion upon counsel of record; Janice Haagensen and Jonathan Solomon, Esq.

      . Edward Abersold had previously granted Mr. and Mrs. Reed an easement over the initiate portion of the driveway, as the same is claimed to be situated in the north-east corner of his property. This easement agreement was subsequently entered into with the Hershbergers after they purchased the farm from the Reeds. The easement agreement is recorded in the office of the Lawrence County Recorder of Deeds at deed book volume 2088, page 480. See plaintiff’s exhibit L.

      . James Abersold is the son of defendant, Edward Abersold. Edward Abersold conveyed a portion of his property located on the western side of New Road to James Abersold on May 17,2010. That specific property is not relevant to these proceedings, other than as an illustrative tool used by the parties to establish the municipal line.

      . Defendant’s Exhibit 1 is the actual survey prepared by Taylor engineering, which the court finds to be a conclusive depiction of Mr. Taylor’s testimony.


author: JEFFERIES, Member,

text:
    Office of Disciplinary Counsel v. Lennert

      April 15, 2011
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

JEFFERIES, Member,

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

I. HISTORY OF PROCEEDINGS

On September 22,2009, Office of Disciplinary Counsel filed apetition for discipline atNo. 87DB 2009 againstBrett J. Lennert, respondent. The petition charged respondent with violations of Rule of Professional Conduct 8.4(b) and Rule of Disciplinary Enforcement 203(b)(1) arising out of his conviction of the crime of possessing a controlled or counterfeit substance by a person not registered. On October 7, 2009, office of disciplinary counsel filed a second petition for discipline at No. 163 DB 2009 against respondent for violations of Rules of Professional Conduct 1.1, 1.3, 1.4(a)(2),(3),(4), 1.4(b), 1.5(b), 1.15(b), 1.15(i), 1.16(a)(2), 1.16(d), and 8.4(d). The petitions for discipline were consolidated for hearing. Respondent did not file answers to the petitions for discipline.

A disciplinary hearing was held on March 26, 2010 before a district II hearing committee comprised of chair Patrick J. Connors, esquire, and members Nicholas J. Caniglia, esquire, and Elizabeth A. Schneider, esquire. Respondent did not appear at the hearing.

On June 15, 2010, the hearing committee filed a report, concluding that respondent violated the Rules of Professional Conduct and Rules of Disciplinary Enforcement as charged in the petitions for discipline, and recommending that respondent be suspended for a period of two years.

Petitioner filed a brief on exceptions on June 25, 2010.

This matter was adjudicated by the disciplinary board at the meeting on October 11, 2010.

II. FINDINGS OF FACT

The board makes the following findings of fact:

1. Petitioner, whose principal office is located at Suite 2700, 601 Commonwealth Avenue, P.O. Box 62485, Harrisburg, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of said Rules of Disciplinary Enforcement.

2. Respondent is Brett J. Lennert. He was born in 1977 and was admitted to practice law in the Commonwealth in 2004. His last registered address with the disciplinary board was 111 E. Broad Street, 1st Floor, Bethlehem Pa. 18018.

3. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

4. Respondent has no prior discipline.

5. On June 13, 2008, respondent was arrested for possession of controlled substance, testosterone cypionate, resulting in criminal charges in Lehigh County.

6. On September 15, 2008, bail was set at $2,500, conditioned upon respondent being subjected to regular and random urinalysis testing.

7. On January 22, 2009, after hearing, Judge Kelly L. Banach found respondent violated the conditions of his bail by testing positive for drug use and placed respondent on house arrest.

8. On March 30, 2009, respondent entered a plea of guilty to the charge of possessing a controlled substance, testosterone cypionate, a non-narcotic substance, by a person not registered, in violation of 35 P.S. Section 780-113(a)(16). Respondent was continued on house arrest.

9. On April 3, 2009, respondent’s bail was revoked and he was ordered to undergo a drug and alcohol evaluation after which he was released to an in-patient treatment facility.

10. On May 7, 2009, respondent was sentenced by Judge Maria Dantos to one year of probation, 50 hours of community service and costs and fees. He was ordered to surrender to inpatient drug treatment at Keenan House.

11. On September 22, 2009 and October 28, 2009, warrants were issued for respondent for violating the conditions of probation, engaging in the use of illegal prescription drugs and failing to undergo drug screens.

12. On November 17,2009, Judge Dantos re-sentenced respondent to three to 23 months in Lehigh County Prison with immediate release to Riverside for substance abuse treatment.

13. By order of December 24, 2009, respondent was granted parole, to be supervised by the adult probation department of Lehigh County.

14. In a second criminal matter, on July 17, 2008, respondent was arrested for accidents involving death or injury and related charges in Northampton County.

15. On September 14, 2009, respondent entered a plea of guilty to accidents involving death/injury-not properly licensed and was sentenced to 18 months of probation.

16. OnNovember 6,2009, upon violating the conditions of his probationary sentence, respondent was re-sentenced to 18 months of probation.

17. On March 9, 2010, respondent again violated the conditions of probation and a warrant was issued for his arrest.

18. Respondent failed to notify the disciplinary board of his criminal conviction in the drug possession matter, as he was required to do by Pa.R.D.E. 214(a).

19. From April 2008 through March 2009, respondent was retained by five separate clients — Richard Cover, Randolph Jackson, Jeffery Ford, Christopher Johnson, and Adrian Kipkin — to represent them in criminal matters in Chester and Northampton Counties.

20. In the Cover, Ford and Kipkin matters, respondent did not provide his clients with written fee agreements, despite the fact that he had never represented them before.

21. In the Cover matter, respondent received advanced fee payments and failed to hold these funds in an escrow or IOLTA account to be withdrawn as the fee was earned.

22. In all matters, respondent did not earn the full amount of the advanced fee and failed to refund the unearned portions.

23. In all matters, respondent failed to appear in court on behalf of his clients.

24. In all matters, respondent failed to communicate with clients after taking a retainer despite the clients’ efforts to contact him.

25. In all matters, respondent failed to withdraw his representation of the client.

26. On August 6, 2009, respondent was placed on administrative suspension by the Supreme Court of Pennsylvania.

27. Respondent was served with both petitions for discipline on December 21, 2009.

28. Respondent did not file answers to either petition.

29. On February 9, 2010, respondent was personally served with notice of pre-hearing conference and disciplinary hearing scheduled for February 16, 2010 and March 26, 2010, respectively.

30. Respondent failed to appear at the pre-hearing conference or at the disciplinary hearing.

III. CONCLUSIONS OF LAW

By his conduct as set forth above, respondent violated the following Rules of Professional Conduct and Rule of Disciplinary Enforcement:

1. RPC 1.1—A lawyer shall provide competent representation to a client.

2. RPC 1.3—A lawyer shall act with reasonable diligence and promptness in representing a client.

3. RPC 1.4(a)(2),(3),(4)—A lawyer shall reasonably consult with the client about the means by which the client’s objectives are to be accomplished; keep the client reasonably informed about the status of the matter and promptly comply with reasonable requests for information.

4. RPC 1.4(b)—A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

5. RPC 1.5(b)—When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation.

6. RPC 1.15(b)—A lawyer shall hold all Rule 1.15 Funds and property separate from the lawyer’s own property. Such property shall be identified and appropriately safeguarded.

7. RPC 1.15(i)—A lawyer shall deposit into a trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred, unless the client gives informed consent, confirmed in writing, to the handling of fees and expenses in a different manner.

8. RPC 1.16(a)(2)—A lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.

9. RPC 1.16(d)—Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.

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

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

12. Pa.R.D.E. 203(b)(1)—Conviction of a crime, which under Enforcement Rule 214 may result in suspension, shall be grounds for discipline.

IV. DISCUSSION

This matter is before the disciplinary board for consideration of the petitions for discipline filed against respondent charging him with violations of the Rules of Professional Conduct and Rules of Disciplinary Enforcement arising out of a criminal conviction and from his misconduct in five separate client matters. Respondent did not answer the charges against him and the factual allegations contained in the petitions for discipline are deemed admitted. Pa.R.D.E. 208(b)(3). In addition to respondent’s admissions, the record is replete with evidence establishing violations of the rules.

In the case at bar, respondent was convicted of two crimes, one of which is deemed to be “serious” pursuant to Pa.R.D.E. 214(1), and engaged in serial neglect of legal matters. Respondent failed to keep his clients informed about their cases, failed to provide his clients with a document evidencing the basis and rate of his fee; failed to return client papers and unearned fees to client when the representations were terminated. In short, respondent completely abandoned his representations in connection with five clients. Respondent’s abandonment of his law practice necessitated a common pleas judge to withdraw respondent’s appearance on behalf of numerous criminal defendants and appoint replacement counsel.

Exacerbating respondent’s misconduct is his failure to participate in any facet of the disciplinary proceedings against him. Respondent has demonstrated an utter lack of interest in maintaining his license to practice law. He failed to answer the petitions for discipline, failed to appear at the pre-hearing conference and failed to appear at the disciplinary hearing. Respondent appears to be a fugitive from the criminal justice system in connection with a matter separate from the criminal conduct which is the subject of the instant proceeding.

Respondent’s convictions of two crimes and his abandonment of his legal practice lead to the conclusion that he is not fit to be a lawyer and should be disbarred.

The purpose of the disciplinary system is to protect the public from unfit attorneys and to maintain the integrity of the legal system. Office of Disciplinary Counsel v. Costigan, 526 Pa. 16, 584 A.2d 296 (Pa. 1990). Precedent supports the recommendation of disbarment in cases involving the abandonment of clients and failure to participate in disciplinary proceedings.

In the matter of In re Anonymous, Nos. 75 DB 94 & 7 DB 95, 34 Pa. D. & C. 4th 32 (1996), two petitions for discipline were filed against the respondent. The first involved the respondent’s criminal conviction for writing bad checks. The second petition alleged that she abandoned her obligations to three clients who had pending criminal cases by failing to appear at the hearings and failing to return fees the clients paid in advance. At the time of the hearing, the respondent had been charged with assault with a deadly weapon. The respondent did not show at the hearing. The court disbarred this respondent.

In Office of Disciplinary Counsel v. Floyd Paul Jones, Nos. 133 DB 2003 & 1 DB 2004, 72 Pa.D.&.C. 4th 98 (2005), two petitions for discipline charged Mr. Jones with violating the rules of professional conduct in connection with six separate client matters and a contempt proceeding in York County Court of Common Pleas. The evidence established that Mr. Jones had abandoned his law practice and his whereabouts were unknown at the time of the disciplinary hearing. Mr. Jones did not appear at the disciplinary hearing. The court ordered that he be disbarred.

In Office of Disciplinary Counsel v. Pablo Santana, Nos. 65 DB 1994 & 10 DB 1995 (1997), the evidence established that in 11 separate matters, Mr. Santana took fees from clients, performed minimal if any legal services, and then abandoned the clients. He did not answer the charges against him and failed to appear at the disciplinary hearings. The court ordered that Mr. Santana be disbarred.

The record in this matter presents a serious and disturbing set of circumstances. Respondent has not shown that he is entitled to any mitigation of discipline. The board’s responsibility to the public will be fulfilled by the imposition of disbarment.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that the respondent, Brett J. Lennert, be disbarred from the practice of law in this Commonwealth.

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

ORDER

And now, April 15, 2011, upon consideration of the report and recommendations of the disciplinary board dated December 21,2010, it is hereby ordered that Brett J. Lennert is disbarred from the Bar of this Commonwealth and he shall comply with all the provisions of Rule 217, Pa. R.D.E.

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