author: GRINE, J,

text:
    Shay v. Scott
    C.P. of Centre County,
    no. 05-4048.

      March 15, 2006

      Douglas L. Hearn, for appellee.

      William G. Tressler, for appellant.
   GRINE, J,

Presently before this court is appellant’s notice of appeal of this court’s order of December 6, 2005. After a protection from abuse petition evidentiary hearing held on the same date, this court was satisfied on proof beyond a reasonable doubt that appellee had proven her allegation of abuse against appellant. Accordingly, this court issued a final order of court on or about December 6, 2005 granting appellee’s request for a final protection from abuse order.

Pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), this court filed an order requiring counsel for the appellant to submit a concise statement of matters complained of on appeal. Counsel for appellant did so in a timely matter and argues the following on appeal:

“(1) Plaintiff failed to establish that she is a family or household member, sexual or intimate partner, or person who shares biological parenthood with defendant pursuant to 23 Pa.C.S. §6102.

“(2) Plaintiff failed to establish that defendant inflicted ‘abuse’ as defined in 23 Pa.C.S. §6102(a)(l) because there was no evidence that defendant either attempted to cause or intentionally, knowingly, or recklessly caused any of the proscribed behaviors under that subsection.

“(3) Specifically, plaintiff did not prove by a preponderance of the evidence that defendant inflicted abuse as defined in 23 Pa.C.S. §6102(a)(5) because there was insufficient evidence of conduct by defendant which would place plaintiff in reasonable fear of bodily injury.

“(4) There was no evidence that defendant inflicted abuse as defined in 23 Pa.C.S. §6102(a)(2), (3) or (4).” See concise statement of matters complaint of on appeal, 2/17/06.

In his first matter complained of on appeal, appellant argues, in sum, that appellee did not have standing to seek a protection from abuse order from this court. Appellant alleges that appellee did not have standing to seek a protection from abuse order because plaintiff failed to establish that she is a protected person under the definition of “abuse” provided in the Protection from Abuse Act. See 23 Pa.C.S. §6102.

“Prior to judicial resolution of a dispute, an individual must as a threshold matter show that he has standing to bring the action.” Pittsburgh Palisades Park LLC v. Commonwealth, 585 Pa. 196, 203, 888 A.2d 655, 659 (2005); citing Bergdoll v. Kane, 557 Pa. 72, 731 A.2d 1261 (1999). In other words, a controversy is only worthy of judicial review if the individual initiating the legal action has been aggrieved. Pittsburgh Palisades LLC v. Commonwealth, 585 Pa. 196, 203-204, 888 A.2d 655, 659 (2005). (citations omitted) An individual can demonstrate that he has been “aggrieved” if he can establish that he has a substantial, direct, and immediate interest in the outcome of the litigation in order to be deemed to have standing. Id. at 205, 888 A.2d at 660.

Under the Protection from Abuse Act, an adult may seek relief under the Act “by filing a petition with the court alleging abuse by the defendant.” 23 Pa.C.S. §6106(a). “Abuse” under the Act is defined as the occurrence of one or more specifically defined acts between family or household members, sexual or intimate partners, or persons who share biological parenthood. 23 Pa.C.S. §6102(a). Appellant and appellee were neither family nor household members, nor persons who share biological parenthood; therefore, appellee’s basis for relief was that she and appellant were former sexual or intimate partners.

At the protection from abuse order hearing, appellee testified that as a child, she was sexually molested by appellant. (Tr. 12/6/05, p. 4, ¶¶22-24.) From the time she was 7 years old until she was 12 years old, appellant would fondle and touch appellee between her legs, rubbing appellee’s genitals. (Tr. 12/6/05, p. 5, ¶¶16-25; p. 6, ¶¶1-15, 22-25; p. 7, ¶¶1-13.) Appellant does not deny molesting appellee when she was a child. As a result of the molestation, appellant was charged and pled guilty to two counts of indecent assault. (Tr. 12/6/05, p. 84, ¶¶2-4.)

At the conclusion of the hearing, defense counsel argued that appellee was a victim, not a sexual or intimate partner of appellant. Because the sexual relations between appellant and appellee were not consensual, appellant would have this court believe that appellee is not entitled to seek protection from the court. An extensive review of Pennsylvania case law reveals that there have been no previous decisions regarding the issue of whether an unwilling partner in a nonconsensual sexual relationship has standing to allege abuse under 23 Pa.C.S. §6102. Here, where appellee was sexually molested for a number of years, from the time she was a child into her adolescence, and is now again being faced with her abuser, this court submits that it could not find a better example or situation for which a plaintiff-victim is entitled to protection under the Protection from Abuse Act. This court finds that where sexual activity has occurred, even between a molester and his non-consenting victim, this establishes a sexual or intimate partner relationship between the parties sufficient to give the victim standing to seek a protection from abuse order.

Appellant’s remaining arguments challenge the sufficiency of the evidence before the court when this court determined that appellant had inflicted abuse upon appellee as defined under the Protection from Abuse Act. At the outset, this court notes, when a claim is presented on appeal that the evidence is not sufficient to support an order of protection from abuse, an appellate court will review the evidence in the light most favorable to the petitioner, granting the petitioner the benefit of all reasonable inferences. Karch v. Karch, 885 A.2d 535, 536-37 (Pa. Super. 2005). Also, in reviewing the validity of a protection from abuse order, the appellate court must defer to the lower court’s determinations of credibility of witnesses at the hearing. R.G v. T.D., 448 Pa. Super. 525, 527, 672 A.2d 341, 342 (1996).

As stated above, an adult may seek relief under the Protection from Abuse Act “by filing a petition with the court alleging abuse by the defendant.” 23 Pa.C.S. §6106(a). One type of abuse which may be alleged is where a former or current sexual or intimate partner “[k]nowingly engagers] in a course of conduct or repeatedly commit[s] acts toward another person, including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury.” 23 Pa.C.S. §6102(a)(5). Placing another in reasonable fear of bodily injury has been interpreted to mean that the victim’s fear of bodily injury must simply be reasonable; actual physical contact is not required. Fonner v. Fonner, 731 A.2d 160 (Pa. Super. 1999) (holding that a victim is not required to wait for physical or sexual abuse to occur in order for the Protection from Abuse Act to apply).

In R.G. v. T.D., 448 Pa. Super. 525, 672 A.2d 341 (1996), the Superior Court found abuse where there was testimony that a former boyfriend made repeated unwanted phone calls, sent electronic messages, informed the plaintiff that he suffered from obsessive-compulsive disorder and that the plaintiff was the object of his obsession, that the plaintiff was “very scared” by the increasingly hostile messages, and that she was afraid to walk around campus even in the daylight. See id. The defendant also adamantly persisted in continuing to speak with the plaintiff despite her pleas for him to desist. Id. at 528, 672 A.2d at 342.

Here, the testimony revealed that after appellant had pled guilty to the two counts of indecent assault, appellant would show up at appellee’s different jobs. (Tr. 12/ 6/05, p. 8, ¶¶ 13-15; p. 10, ¶¶14-17.) Appellee testified that she believed that appellant knew she was at those locations because he would come into her place of employment and smile at appellee in a similar fashion to the way appellant would smile at her when he would molest her. (Tr. 12/6/05, p. 9, ¶¶9-15.) Appellee stated that it felt like appellant would find out where she worked, and then that would become a place where appellant would frequent. (Tr. 12/6/05, p. 11, ¶¶14-17.)

Appellee’s suspicions were seemingly confirmed when appellant showed up at her front door in August of2004 when appellee was at home alone with her three young children and pregnant with her fourth. Appellee testified that she immediately started shaking and that one of her first thoughts when she saw appellant was the fear that he would enter her home through her garage door which was not closed. (Tr. 12/6/05, p. 13, ¶¶18-23.) Appellant also made a statement which sent “ripples of fear” through appellee; appellant made the statement that appellee’s neighbor was appellant’s cousin. Appellee testified that this statement made her feel like appellant was saying that he could show up at her house any time he wanted to. (Tr. 12/6/05, p. 15, ¶¶6-11.) After this incident, appellee stated that she was so scared and upset that she packed her children into her van, took her cell phone, and drove around calling people until she could reach someone she knew. (Tr. 12/6/05, p. 16, ¶¶4-10.) Appellee did this because she was scared and did not feel safe in her own home. For days after this incident, appellee testified that she was upset and looked over her shoulder everywhere she went. {Id. at ¶¶22-24.) The day after appellant “visited” appellee’s home, appellee’s father called appellant and told him not to go near appellee again. (Tr. 12/6/05, p. 55, ¶¶23-24.)

Mr. Fetzer’s warning, however, went unheeded. Even more disturbing, appellant showed up at appellee’s church in late October 2005. On that particular date, within seconds of exiting her vehicle into the parking lot of her church, appellee was told by others that appellant was present at the function. (Tr. 12/6/05, p. 20, ¶¶14-15.) Appellant, a member of another church, had volunteered to work at the Light the Night function at appellee’s church on Halloween knowing that appellee was a member of that particular congregation. Appellant was observed within feet of appellee, staring at her. (Tr. 12/6/ 05, p. 22, ¶¶23-24; p. 34, ¶¶10-14.) Appellant was approached by members of appellee’s church about the situation, which apparently did not faze appellant as he remained at the event despite appellee’s obvious discomfort at appellant’s presence. Appellee’s reaction to appellant’s presence and her fear of appellant can best be summarized in appellee’s own words:

“I don’t even know how to like explain to you what that does when fear grips you and you just feel like you are in this tunnel, and... like you’re caught in the headlights. You can’t — you just shut down, and that is what I did.” (Tr. 12/6/05, p. 20, ¶¶10-15.)

In light of their past history, this court has no doubt as to the extent of the fear appellee has of appellant, and this court finds appellee’s fear to be reasonable and well placed. This court respectfully remains satisfied on proof beyond a reasonable doubt that appellee has proven her allegation of abuse against appellant. Specifically, this court asks the court to affirm its finding that appellant knowingly engaged in a course of conduct or repeatedly committed acts toward appellee, including following appellee, without proper authority, under circumstances which placed appellee in reasonable fear of bodily injury.


source: Caselaw Access Project

author: WORTHINGTON, J.,

license: Public Domain

text:
    Stauffer v. Stauffer

      C.P. of Monroe County,
    no. 5419 CV 2001, no. 736 DR 2001.
    March 2, 2006

      Marshall Anders, for plaintiff.

      Elvira Labarre, for defendant.
   WORTHINGTON, J.,

Plaintiff, Nellie L. Stauffer (Wife), and defendant, Leonard J. Stauffer (Husband), were married on May 21,1982. Master’s report at 2. On July 24, 2001, Wife filed a complaint seeking a divorce pursuant to sections 3301(c), 3301(d), and 3301 (a)(6) of the Pennsylvania Divorce Code, equitable distribution, alimony, alimony pendente lite, counsel fees, costs and expenses. The parties filed affidavits of consent at the initial master’s hearing held on June 8, 2005.

Both parties and their respective counsel attended two master’s hearings in front of Robert C. Lear, Esquire on June 8,2005 and June 9,2005. The master filed a report and recommendations on September 15,2005. Wife filed exceptions to the report on September 26, 2005 and a memorandum of law in support of plaintiff’s exceptions on November 3, 2005. Husband filed exceptions to the report on October 5, 2005 and a brief in support of his exceptions and contra plaintiff’s exceptions on November 3, 2005. Argument was held on November 7, 2005 and the exceptions are now before us for disposition.

This was the second marriage for both Husband and Wife. There were no children bom to this marriage.

At the time of the hearing, Husband was 73 years of age and in poor health. He had been diagnosed with multiple health problems including diabetes, high blood pressure, coronary artery disease, herniated discs, abdominal aortic aneurysms and bilateral internal carotid artery stenosis.

At the time of the Hearing, Wife was 72 years of age and in reasonable health. Wife testified that she suffered from depression, dizzy spells and fainting.

The master determined that the marital estate was comprised of a small piece of real estate in Troy, Pennsylvania valued at $50,000, three parcels of real estate with a combined value of $245,000, a life insurance policy with a cash value of $32,826, a Chevrolet Impala valued at $8,250, a Honda Goldwing GL Motorcycle worth $16,999, akit car valued at $3,500, andHusband’s interest in Stauffer Concrete and Excavating Inc. Report at 13.

Throughout the parties’ marriage, Husband served as the owner and operator of Stauffer Concrete and Excavating Inc., which he founded in 1966. The business was incorporated in 1999 when Husband’s son, David Stauffer, became active in developing the concrete products portion of the business. At the time of the parties’ separation, Husband owned 90 percent of the common stock of the corporation and his son owned the remaining 10 percent.

After hearing extensive testimony with regard to the value of Husband’s business, the master recommended that Husband’s interest be assigned a value of $283,248. Report at 8. Furthermore, after thoroughly considering the equitable distribution factors in light of the specific facts presented, the master recommended a 55 percent-45 percent distribution scheme favoring Wife. Report at 16.

When we review the recommendations of the master, they are entitled to great consideration because the credibility of the witnesses is an issue. Herwig v. Herwig, 279 Pa. Super. 65, 420 A.2d 746 (1980). However, those findings are not binding on the court. Butler v. Butler, 423 Pa. Super. 530, 621 A.2d 659 (1993). If the court feels it should deviate from a recommendation, it has the authority to do so, Morschhauser v. Morschhauser, 357 Pa. Super. 339, 516 A.2d 10 (1986), because the final responsibility for making the equitable distribution of property rests with the court. Tagnani v. Tagnani, 439 Pa. Super. 596, 654 A.2d 1136 (1995). We will, however, affirm the master if the recommendations are supported by the record. Furthermore, equitable distribution need not be equal, only equitable. Williamson v. Williamson, 402 Pa. Super. 276, 586 A.2d 967 (1991).

Section 3502 of the Divorce Code sets forth the factors to be considered by the master in any equitable distribution. The section states in pertinent part:

“(a) General rule. — Upon the request of either party in an action for divorce or annulment, the court shall equitably divide, distribute or assign, in kind or otherwise, the marital property between the parties without regard to marital misconduct in such percentages and in such manner as the court deems just after considering all relevant factors. The court may consider each marital asset or group of assets independently and apply a different percentage to each marital asset or group of assets. Factors which are relevant to the equitable division of marital property include the following:

“(1) The length of the marriage.

“(2) Any prior marriage of either party.

“(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties.

“(4) The contribution by one party to the education, training or increased earning power of the other party.

“(5) The opportunity of each party for future acquisitions of capital assets and income.

“(6) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits.

“(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.

“(8) The value of the property set apart to each party.

“(9) The standard of living of the parties established during the marriage.

“(10) The economic circumstances of each party at the time the division of property is to become effective.

“(10.1) The federal, state and local tax ramifications associated with each asset to be divided, distributed or assigned, which ramifications need not be immediate and certain.

“(10.2) The expense of sale, transfer or liquidation associated with a particular asset, which expense need not be immediate and certain.

“(11) Whether the party will be serving as the custodian of any dependent minor children.” 23 Pa.C.S. §3502.

With these standards in mind, we turn to Wife’s eight exceptions to the report. Wife contends that the master erred in:

(1) determining the net asset value of the business;

(2) ignoring good will in determining the net asset value of the business;

(3) determining the value of the kit car;

(4) finding that half of the loan made by Wife to Husband was included in the business valuation;

(5) awarding Wife permanent alimony in the amount of $1,500;

(6) not requiring Husband to pay all of Wife’s counsel fees, costs, and expenses;

(7) failing to take into consideration Husband’s marital misconduct;

(8) crediting Husband with one-half of the reduction in principal of the business loan from the date of separation to the date of the hearing.

WIFE’S EXCEPTIONS TO THE REPORT

Wife’s first two exceptions relate to the value that the master assigned to Husband’s business.

Stauffer Concrete and Excavating Inc. is based in Kunkletown, Monroe County, Pennsylvania, and is located on properties owned either by Husband individually or by the parties jointly as Husband and Wife. Report at 5. The business is managed by both Husband and his son, David Stauffer. Id. Husband owns 90 percent of the interest in the business and his son owns the remainder. At the time of the hearing, Husband was serving primarily as the general manager, scheduling excavations, as well as the delivery and installation of septic tanks, whereas his son was heavily involved in the septic tank manufacturing aspect of the business. Id.

Wife’s first exception is that the master erred in determining the net asset value of the business. Memorandum of law in support of plaintiff’s exceptions at 10.

At the hearing, Husband’s expert, Bradley W. Hock-man CPA, testified that he used a capitalization of earnings approach in order to determine the value of Husband’s business. N.T., 6/8/2005 at 70. This particular valuation approach takes into consideration the “historical income of the company and determine[s] what a potential buyer would pay for that income stream.” Id. at 23. According to Mr. Hockman, Husband’s interest in the company was worth approximately $133,000. Id. at 78. Alternatively, Wife’s business expert, Joseph Egler CPA, MBA, testified that in his opinion the most reliable business valuation approach to use in this particular instance was the net asset value approach, which takes into consideration the market value of the business equipment, as well as the other assets and liabilities. Id. at 30. Based upon this approach, Mr. Egler determined that Husband’s interest in the company was valued at $360,000. Id. at 31.

With regard to the valuation of Husband’s business, the master wrote:

“For this type of business, which is basically ‘asset heavy, ’ it would appear that the most reasonable approach would be that the business is worth what the assets are worth (with certain adjustments); which, while rather simplistic, tends to be effective.

“Mr. Egler on page 12 of his report sets forth an adjusted 2000 balance sheet which values total current assets as of December 31,2000, at $224,548, those current assets consisting of cash, accounts receivable and inventories — manufactured septic tanks. Added to this are fixed assets which basically are the trucks, excavating equipment, etc., which are valued by Capital Asset Services at $488,650 — a value which was utilized by both appraisers. This gives total assets of $713,590 and, when total liabilities of $284,664 are subtracted from them, leaves a net of $428,926 as the net asset value without tax and other consequences factored.

“Quite frankly this seems to be the most realistic basis for the sale of the Stauffer enterprise because the buyer is paying for the cash, the receivables, the inventory, and the ‘rolling stock’; and does not have to worry about good will which probably is not transferable from Mr. Stauffer to anyone else. In addition, since the business owns no real estate, all of these items will have to be moved to a new location.

“However, the master feels that certain adjustments have to be made to this net asset value approach, and therefore, recasts Mr. Egler’s report as follows.

“In regard to current assets as of December 31,2000, cash is obviously cash and that remains at $62,671. In regard to accounts receivable, the master feels that a 15 percent discount is appropriate which reduces them to $97,943. In regard to the septic tank inventory, probably a slight discount is necessary in that it has to be relocated and the master feels that [a] 10 percent [discount] is appropriate, which lowers that to $41,985 or total current assets of $202,599.

“Addressing the equipment which was valued at $488,650, the master feels that as an incentive to a buyer that a 10 percent discount might be appropriate, thus reducing its value to $439,785 or a total asset value of $642,384. Subtracted from this would be the total liabilities as shown on the adjusted balance sheet as of December 31, 2000, of $284,664 leaving a net of $357,720.

“Obviously, in regard to the sale of the net assets of the business, there would be tax consequences which Mr. Hockman in his report on page 15 calculated in regard to a liquidation value at approximately $43,000, a sufficient approximation for this type of situation....

“[HJence, Mr. Stauffer’s 90 percent interest is worth $283,248.” Report at 7-8.

In her memorandum of law, Wife contends that the master erred as a matter of law and committed an abuse of discretion when he made adjustments to Mr. Egler’s proposed business valuation. Memorandum of law in support of plaintiff’s exceptions at 13. Specifically, Wife avers that the master should not have made adjustments to the accounts receivable, the inventory, or the sales price. Id. at 13-14. Wife further argues that the master erred in considering the possible tax consequences associated with the liquidation of the business. Id. at 13.

The Divorce Code does not provide a specific method for valuing marital assets; therefore, a trial court “must exercise its discretion, relying upon the estimates and inventories submitted by both parties, the records of purchase prices, and appraisals.” Kohl v. Kohl, 387 Pa. Super. 367, 373, 564 A.2d 222, 225 (1989). In determining the value of marital property, the trial court is free to accept all, part or none of the evidence as to the true and correct value of the property. Litmans v. Litmans, 449 Pa. Super. 209, 220, 673 A.2d 382, 395 (1996), citing Aletto v. Aletto, 371 Pa. Super. 230, 537 A.2d 1383 (1988). It is worth noting that a trial court need not accept the uncontradicted testimony of an expert; however, in such a situation, a trial court should at least provide some explanation for its decision to deviate from the expert testimony. Semasek v. Semasek, 509 Pa. 282, 289, 502 A.2d 109, 112 (1985).

In the instant matter, the master heard extensive expert testimony concerning the value of Husband’s business. There was a difference of approximately $227,000 between the two experts’ valuations of the business. Although the master found that the net asset method utilized by Mr. Egler was the more reasonable approach for valuing this particular type of business, he ultimately determined that it was necessary to make certain adjustments to Mr. Egler’s proposed valuation in order to effectuate economic justice between the parties. Specifically, the master found that a discount of 15 percent to the business’ accounts receivable was appropriate in light of the specific facts presented. The master also discounted the business’ septic tank inventory by 10 percent since the business did not own any real estate and, therefore, a potential buyer would have to incur additional costs in order to relocate the entire establishment. Finally, the master decided that a 10 percent discount to the business’ equipment would serve as an appropriate incentive to a potential buyer. As we have already indicated, the master, as the fact-finder, was free to accept all, none or part of the testimony presented. In the instant matter, the master chose to accept portions of both experts’ reports and then he made certain adjustments as he deemed appropriate in light of the facts presented. After carefully reviewing the evidence, as well as the master’s explanations for his adjustments, we find that the master did not err as a matter of law nor did he commit an abuse of discretion when he made certain adjustments to Mr. Egler’s proposed valuation.

Wife relies on Hovis v. Hovis, 518 Pa. 137, 541 A.2d 1378 (1988), for the proposition that the master erred as a matter of law when he considered the potential tax liabilities in his valuation of Husband’s business for equitable distribution purposes. In Hovis, the court held that “potential liability may be considered in valuing marital assets only where a taxable event has occurred as a re-suit of the divorce or equitable distribution of property or is certain to occur within a time frame such that the tax liability can be reasonably predicted.” Id. at 143, 541 A.2d at 1380-81. (footnote omitted)

On January 28,2005, the Divorce Code Amendments of2005 became effective. Of particular significance are the additions of section 3502(a)(10.1) and (10.2). A trial court may now consider the federal, state, and local tax ramifications associated with each asset to be divided, distributed or assigned, irregardless of whether the consequences are immediate or certain. 23 Pa.C.S. §3502(a)(10.1). (emphasis added) This language overrules the holding in Hovis. Additionally, atrial court may also take into consideration the expense of a sale, the transfer or liquidation associated with a particular asset even though such expense may not be immediate or certain. Pa.C.S. §3502(a)(10.2). (emphasis added) In light of the recent changes to the Pennsylvania Divorce Code, we find that the master did not err as a matter of law when he took into consideration the potential tax consequences associated with Husband’s business. Wife’s first exception is dismissed.

Wife’s second exception is that the master failed to take into consideration good will when he calculated the net asset value of the business. Memorandum of law in support of plaintiff’s exceptions at 12. Good will is the positive reputation that a particular business enj oys. Butler v. Butler, 541 Pa. 364, 378, 663 A.2d 148, 155 (1995). While it is true that good will that is attributable to the business itself is subject to equitable distribution, good will that is intrinsically tied to an individual’s attributes and skills is not subject to distribution since such value does not survive the individual’s disassociation from the business. Butler v. Butler, 541 Pa. 364, 378, 663 A.2d 148, 155 (1995), citing Solomon v. Solomon, 531 Pa. 113, 124-25, 611 A.2d 686, 692 (1992).

In the instant matter, the master determined that the business’ good will value was not subject to equitable distribution since it was intrinsically tied to Husband’s attributes and skills. “Realistically, in reviewing both of the [expert] reports, the master has come to the opinion that the major value of Stauffer Excavating is not in good will, in that, once the business would be sold and Leonard Stauffer would not be dealing with the customers on a daily basis, certain accounts would leave and new ones would have to be found to fill in the lost revenue.” Report at 6-7.

Husband founded Stauffer Concrete and Excavating in 1966, and despite numerous ailments and failing health, Husband has remained an integral part of the business for the past 40 years. At the hearing, Husband’s son, David Stauffer, testified that his father is still involved with the business as a consultant. N.T., 6/9/2005 at 56. According to Mr. Stauffer, “the people that need work done go through him. And he will basically say, yea or nay, whether or not it can be done.” Id. Mr. Stauffer further testified that Stauffer Concrete and Excavating Inc. was “the type of business where if you can’t go out there and keep prodding it and pushing it along, it will soon, very quickly go to sleep.” Id. at 58.

We find that the testimony and evidence presented supports the master’s finding that whatever good will the business may possess is directly attributable to Husband. Neither party presented any evidence to support the assertion that the business itself has a positive reputation within the community, and therefore we find that the business does not possess a good will value independent of Husband. Wife’s second exception is dismissed.

Wife’s third exception is that the master improperly determined the value of the kit car. Memorandum of law in support of plaintiff’s exceptions at 16.

During the marriage, Husband and Wife purchased a kit car for approximately $6,500. N.T., 6/9/2005 at 111. Husband testified that he made improvements to the vehicle. Id. After the parties separated, the kit car remained in Wife’s possession until she sold it for $1,000. N.T., 6/ 8/2005 at 155. According to Wife, the automobile was in poor condition. Id. at 156. “[The kit car] was deteriorated and it was rusting. It had a lot of problems.” Id. Wife further testified that she “had to get rid of it because [she] was leaving town.” Id.

Alternatively, Husband testified that the vehicle was in good condition at the time of separation. N.T., 6/9/ 2005 at 156. In addition, Husband introduced into evidence an advertisement forKitCars.com, which indicated that a similar kit car was being listed for $7,900. Defendant’s exhibit no. 15.

In the report, the master addressed the parties’ conflicting testimony with regard to the value of the kit car and ultimately reached the conclusion that “Wife’s testimony as to the deteriorated condition of the vehicle has weight,” however, the “vehicle probably was liquidated too cheaply” and, therefore, he assigned a value of $3,500 to the kit car. Report at 10.

The master’s recommendations should be given the “fullest consideration,” particularly on issues of credibility, since he is the individual hearing the testimony and observing the demeanor and appearance of the witnesses. Kohl v. Kohl, 387 Pa. Super. 367, 564 A.2d 222 (1989), affirmed, 526 Pa. 263, 585 A.2d 463 (1991); Rorabaugh v. Rorabaugh, 302 Pa. Super. 1, 448 A.2d 64 (1982). However, we recognize that it is the duty of the trial court to perform a complete and independent review of the evidence presented to the master in order to determine whether his recommendations are appropriate based upon the evidence. Rollman v. Rollman, 280 Pa. Super. 344, 421 A.2d 755 (1980). This includes a complete review of the weight and credibility to be given to the testimony of witnesses. In reviewing the record, we must look for “inherent improbabilities in the stories of the witnesses, inconsistencies and contradictions, bias and interest, opposition to incontrovertible physical facts, patent falsehoods and other [facts] by which credibility may be ascertained.” Id. at 351, 421 A.2d at 758-59.

With the exception of the advertisement from KitCars.com, neither party produced any documentation specifically pertaining to the value of the kit car in question; therefore, the master was forced to determine the value of the car based upon the testimony presented. After listening to the parties’ conflicting testimony, the master determined that Wife liquidated the vehicle for less than it was worth. We find that Wife has failed to prove that the master committed an abuse of discretion when he valued the kit car at $3,500. Wife’s third exception is dismissed.

We will address Wife’s fourth and eighth exceptions and Husband’s second exception concurrently since they all concern the master’s recommendations pertaining to the loan made by Wife to Husband.

On November 18, 1995, Husband signed a judgment note for $30,000. Defendant’s exhibit no. 14. Pursuant to the terms of the note, Husband promised to pay Wife the principal sum of $30,000. Id. In addition, Husband was obligated to pay interest on the unpaid principal balance from the date of the note until paid at the rate of five percent per annum. Id. According to Wife, Husband borrowed the money from her in order to purchase a piece of equipment for Stauffer Concrete and Excavating. N.T., 6/8/2005 at 15.

After the parties’ separation, Wife filed a confession of judgment complaint in an attempt to collect the note. Report at 11. On December 31, 2001, this court entered an order directing that the complaint be consolidated with the pending divorce action and that “both actions shall proceed as one through the divorce side of the court.” Id.

In the report, the master found that “the piece of equipment was purchased in 1995 and the valuations were done as of the end of the year 2000 — approximately six years later. Equipment depreciates rather rapidly and the master is making a reasoned estimate that a $30,000 piece of equipment purchased in 1995 would have a resale value of approximately $15,000 at the close of business in the year 2000. Based on this, the master finds that $15,000 of the loan was included in the business valuation but yet the other $15,000 and the interest at the rate of five percent on the full balance must be paid by Husband to Wife as part of equitable distribution proceedings. This value is $15,000 in principal and $1,500 per year interest from January 1,1996 (the note being dated mid November 1995) through June of 2005, or the sum of $14,250.” Report, at 12.

Both parties contend that the Master erred as a matter of law and abused his discretion by finding that half of the loan made by Wife to Husband was included in the business evaluation. Memorandum of law in support of plaintiff’s exceptions at 17; Defendant’s brief in support of his exceptions and contra plaintiff’s exceptions, 4. According to Wife, the master should have concluded that the entire amount of the loan was still due and owing to Wife. Memorandum of law in support of plaintiff’s exceptions at 17. Alternatively, Husband argues that the master should have found that the entire amount of the loan was included in the business valuation since the funds were used to purchase equipment for the business. Defendant’s brief in support of his exceptions and contra plaintiff’s exceptions at 5. It is Husband’s position that the value of the equipment purchased with the loan was included in the business valuation, and therefore the loan merged into the value of the business for which Wife was already awarded a 55 percent share.

As we have already noted within this opinion, when determining the value of a marital asset or debt, a trial court must exercise discretion and rely on the estimates, inventories, records of purchase prices, and appraisals submitted by both parties. Smith v. Smith, 439 Pa. Super. 283, 297, 653 A.2d 1259, 1265-66 (1995). Furthermore, “[w]here the evidence offered by one party is uncontradicted, the court may adopt this value although the resulting valuation would have been different if more accurate and complete evidence had been presented.” Anzalone v. Anzalone, 835 A.2d 773, 784 (Pa. Super. 2003).

Capital Asset Services was hired by Wife to appraise the business equipment and machinery. Plaintiff’s exhibit no. 1. On November 30 and December 1, 2001, a representative from Capital Asset Services inspected select machinery and equipment owned by Stauffer Concrete and Excavating Inc. Id. Capital Asset Services concluded that “the final estimate of the current fair market value of the subject equipment ‘as is’ as of November 30 and December 1,2001” was $488,650. Id. The fair market value of the equipment as suggested by Capital Asset Services was utilized by both business valuation experts. Report at 7.

Both parties testified that the borrowed funds were used to purchase a piece of equipment for the business; however, neither party was able to testify as to what specific piece of equipment was purchased with the funds. The report prepared by Capital Asset Services indicated that one of the pieces of equipment owned by the business at the time of the appraisal was an excavator manufactured in 1995. Plaintiff’s exhibit no. 1. As of December 1, 2001, the fair market value of the excavator was $21,800. Id.

Since neither party was able to indicate which piece of equipment was purchased, we are forced to make a determination based upon the evidence in the record. After reviewing the report comprised by Capital Asset Services, we find that it is highly likely that the $30,000 borrowed in 1995 was used to purchase the excavator, which was manufactured in the same year. As a result, we find that $21,800 of the loan made by Wife to Husband was included in the business valuation for which Wife has already received a share. The remaining $8,200 of the loan, as well as the interest on the full principal, must be paid by Husband to Wife as part of the equitable distribution proceedings. Therefore, Husband owes Wife atotal of $22,450, or $8,200 in principal and $14,250 in interest. Wife’s fourth and eighth exceptions and Husband’s second exception are dismissed.

We will address Wife’s fifth and seventh exceptions and Husband’s first exception concurrently since they all pertain to the master’s recommended alimony award.

At the outset, we note that an alimony pendente lite order was entered in this matter and became effective July 24,2001. Report at 17. Pursuant to the terms of the order, Husband was ordered to pay Wife $3,700.66 per month. Id.

After reviewing the 17 alimony factors in light of the specific facts presented, the master wrote:

“Without revisiting the factors addressed in the previous section of this report concerning equitable distribution, the master finds that the plaintiff’s age is an important factor in that she is 72 years of age and, in all probability, capable only of clerical ‘minimum wage’ type of employment. The duration of the marriage is substantial and the standard of living of the parties established during the 19 years was very fine.

“In addition, the relative needs of plaintiff Wife are those of a woman her age who has enjoyed a decent lifestyle. While marital misconduct was addressed during the course of the hearing, the master does not find that as a significant factor in determining whether alimony is appropriate.

“A review of factor 17, ‘whether the party seeking alimony is capable of self support through appropriate employment,’ is important in that the sum that Wife is receiving through equitable distribution is approximately $ 186,000, even at a generous 5 percent return, only generates $9,300 per year and this combined with her Social Security and modest pension totaling $670 per month (which is an additional $8,040 per year) leaves her with an income stream from a pension (which will disappear shortly), Social Security, and an assumed 5 percent return on the equitable distribution award of approximately, $17,340 per year. Drawing down the principal balance of the award by approximately $13,000 per year for 14 years increases the income stream to approximately $30,000 per year initially and then slowly decreases as less interest income is available.

“Based on this, the master finds that a permanent alimony award is warranted and recommends to the court that the sum of $1,500 per month form the basis of the award which would then provide plaintiff Wife [a] total income stream of slightly under $50,000 per year for the next 14 years, her approximate life span by the mortality tables.” Report at 19-20.

According to Wife, the amount of the recommended permanent alimony award is insufficient. Memorandum of law in support of plaintiff’s exception at 21. Wife’s position is that the master should have recommended that Husband continue to pay Wife $3,700.66 per month. Id. Wife further argues that the master erred as a matter of law and abused his discretion by not considering Husband’s marital misconduct when he fashioned the alimony award. Id. at 6. On the other hand, Husband contends that the master erred by recommending a permanent alimony award without making it modifiable due to a change in circumstance. Defendant’s brief in support of his exception and contra plaintiff’s exceptions at 3.

“[T]he purpose of alimony is not to reward one party and to punish the other, but rather to ensure that the reasonable needs of the person who is unable to support himself or herself through appropriate employment are met.” Teodorski v. Teodorski, 857 A.2d 194, 200 (Pa. Super. 2004), citing Moran v. Moran, 839 A.2d 1091, 1096-97 (Pa. Super. 2003). “Alimony ‘is based upon reasonable needs in accordance with the lifestyle and standard of living established by the parties during the marriage, as well as the payor’s ability to pay.’ ” Id. A trial court must take into consideration the 17 factors enumerated in section 3701 of the Pennsylvania Divorce Code in determining whether alimony is necessary and in determining the nature, amount, duration and manner of payment of alimony. 23 Pa.C.S. §3701. It is important to remember that an award of alimony “following a divorce is a secondary remedy and is available only where economic justice and the reasonable needs of the parties cannot be achieved by way of an equitable distribution award and development of an appropriate employable skill.” Teodorski, 857 A.2d at 200, citing Moran, 839 A.2d at 1096-97. (emphasis in original)

With regard to Husband’s exception, an alimony award maybe modified when a substantial change in circumstances is established. Lee v. Lee, 352 Pa. Super. 241, 507 A.2d 862 (1986). Husband’s first exception is dismissed as, by law, Husband may petition the court in the future for a modification if appropriate.

At the time of the hearing, Wife was 72 years of age and in reasonable health. Following her graduation from high school, Wife worked as a bookkeeper for several different businesses. N.T., 6/8/2005 at 162-64. Wife testified that she eventually became employed as a computer supervisor at Wick’s Lumber. Id. at 163. In 1983, after 15 years of service at Wick’s Lumber, Wife’s department relocated to Chicago, Illinois. Id. According to Wife’s testimony, it was at this point in time that she and Husband agreed that she would no longer work. Id. Since 1983, Wife has been responsible for managing the parties’ household. Id. at 170. Given Wife’s age, health, and employability, we agree with the master’s determination that it would be difficult for Wife to obtain more than minimum wage employment.

At the time of the hearing, Wife testified that she receives $617 per month in Social Security in addition to $53.84 per month from her pension, or a combined monthly income of $670.84. N.T., 6/8/2005 at 166-67. In addition, Wife will be receiving $179,334.77 through equitable distribution; therefore, she will be able to use the equitable distribution award, as well as the modest interest income generated from the award to satisfy her financial needs.

According to Wife’s income and expense statement, Wife’s monthly expenses are approximately $3,735.39. Plaintiff’s exhibit no. 19. However, after thoroughly examining the exhibit, we believe that the income and expense statement is less than accurate. In particular, certain monthly expenses listed on the income and expense statement are excessive, such as allotting $500 per month for vacations. On the other hand, Wife’s income and expense statement does not include medical coverage. In the past, Wife’s medical coverage was provided by Stauffer Concrete and Excavating, however, following the divorce Wife will have to obtain independent medical coverage. In her memorandum of law, Wife estimates that this will be an additional cost of $400 per month. Memorandum of law in support of plaintiff’s exceptions at 21.

After considering Wife’s income and expenses, the master recognized that Wife was incapable of supporting herself with only the equitable distribution award; therefore, he recommended that Wife receive a permanent alimony award in the amount of $1,500. Without taking into consideration the equitable distribution award or the interest income generated, Wife will have a monthly income stream of approximately $2,170.84.

In determining the amount of an alimony award, a trial court must consider the reasonable needs of the payee spouse, as well as the ability of the payor spouse to pay. Husband is 73 years old and in poor health; however, he continues to work at Stauffer Concrete and Excavating Inc. In light of Husband’s deteriorating health, we agree with the master’s determination that “Wife probably has more employability than Husband in that, if the closely held corporation did not exist, Husband would find it virtually impossible to obtain gainful employment.” Report at 15. Furthermore, given Husband’s recent health problems, it is uncertain how long Husband will be able to continue working for the corporation. Husband’s 2003 Federal Income Tax Return indicates that he received an annual salary of $40,560 and $20,558 in Social Security payments; therefore, Husband’s monthly income is approximately $5,093. Defendant’s exhibit no. 19.

After reviewing the report, it is readily apparent that the master thoroughly considered the relevant alimony factors, Wife’s reasonable financial needs, and Husband’s ability to pay when he recommended a permanent alimony award in the amount of $1,500 per month. The recommended permanent alimony award effectuates economic justice between the parties. With the permanent alimony award, the equitable distribution award, and Wife’s other sources of income, Wife will be able to meet her reasonable needs. Over the last four years, Husband has already paid Wife approximately $ 180,000 in alimony pendente lite. Once the litigation is over, Wife will no longer be incurring any additional legal fees pertaining to this matter; therefore, it is reasonable for the permanent alimony award to be less than the alimony pendente lite award. Wife’s fifth exception is dismissed.

Wife further argues that the master did not take into consideration Husband’s marital misconduct in fashioning her permanent alimony award. We disagree with Wife’s assertion. In the report, the master indicates that he considered the evidence presented on the issue of Husband’s misconduct and ultimately determined that, although it was a factor, it was not a significant factor in fashioning the award. It is important to remember that section 3701 of the Pennsylvania Divorce Code lists 17 factors that should be considered by a trial court when it fashions an alimony award and marital misconduct is only one of those enumerated factors. After reviewing the evidence and the report, we find that the master carefully considered all of the relevant factors in light of the specific facts presented. Wife’s seventh exception is dismissed.

Wife’s sixth exception is that the master should have awarded her $34,196, the entire amount of her counsel and expert fees.

In the report, the master determined that, “[b]ased on the equitable distribution pattern of 55 percent in Wife’s favor versus 45 percent in Husband’s, the fact that permanent alimony has been recommended due to plaintiff Wife’s age, and the master’s desire not to unduly drain Wife’s assets and, hence, her income stream, the master feels that an award of $10,000 to cover a portion of her counsel fees, costs and expenses is appropriate.” Report at 21.

In determining whether to award a party counsel fees, the trial court must consider the payor’s ability to pay, the requesting party’s financial resources, the value of the services rendered, and the property received in equitable distribution. Adelstein v. Adelstein, 381 Pa. Super. 221, 553 A.2d 436 (1989). Counsel fees are awarded only upon a showing of need. Anzalone v. Anzalone, 835 A.2d 773 (Pa. Super. 2003).

Since July 24,2001, Wife has received approximately $180,000 in alimony pendente lite from Husband. Alimony pendente lite means alimony or maintenance “pending litigation” and is payable during the pendency of a divorce proceeding so as to enable a dependent spouse to proceed with or defend against the action. Heilbron v. Heilbron, 158 Pa. 297, 27 A. 967 (1893). In light of the fact that Wife has already received a significant amount of money over the last four years towards her litigation expenses, we find that the award of $ 10,000 is more than appropriate. Wife’s sixth exception is dismissed.

ORDER

And now, March 2,2006, upon consideration of Nellie L. Stauffer (Wife) and Leonard J. Stauffer’s (Husband) exceptions to the master’s report and recommendations (report) of September 15, 2005, we enter the following order:

(1) Husband and Wife are divorced from the bonds of matrimony.

(2) Wife’s first, second, third, fourth, fifth, sixth, seventh, and eighth exceptions are dismissed.

(3) Husband’s first and second exceptions are dismissed.

(4) Based upon the modifications to the master’s recommendations, Husband shall pay Wife the remaining balance of her share of the equitable distribution award, $ 179,334.77, plus interest at the legal rate of six percent, within six months from the date of this order.

(5) The remaining recommendations of the master are affirmed and the parties are directed to carry out the terms thereof.

      . The hearing was originally scheduled for May 4,2005, however, upon agreement of counsel, the hearing was continued until June 8, 2005, and an additional hearing date of June 9,2005 was also scheduled.

      . Husband’s second exception will be discussed concurrently.

      . Husband’s first exception will be discussed concurrently.

      . It was undisputed that the money loaned by Wife to Husband was entirely premarital in nature.

      . Husband filed exceptions to the alimony pendente lite order, however, his exceptions were dismissed by the Honorable Linda Wallach Miller by an order entered on March 8, 2002. Report at 17.

      . Based upon the modifications made to the master’s recommendations, Wife will be receiving $179,334.77 through equitable distribution. See our discussion of Wife’s fourth and eighth exception and Husband’s second exception.


author: NICKLEACH, P.J.,

text:
    Bowser v. Boguslawski

      C.P. of Armstrong County,
    no. 2001-0425-Civil.

      Alexander H. Lindsay Jr, for plaintiffs.

      Lee V. Price and Todd P Prugar, for defendants.

      December 22, 2005
   NICKLEACH, P.J.,

This lawsuit by the parents of minor Tobias Bowser (Toby) alleges that Toby’s fourth grade teacher, Charles Boguslawski, sexually molested Toby during the 1998-1999 school year at West Hills Elementary School, a school in the Armstrong School District, and that Boguslawski individually and the Armstrong County School District are liable for Boguslawski’s actions. Before the court for disposition is defendant Armstrong County School District’s motion for summary judgment.

The complaint as originally filed contained five counts. Count I against Boguslawski alleged a violation of Toby’s rights under 42 U.S.C. §1983. Count II alleged that the Armstrong County School District violated Toby’s rights in contravention of section 1983. Count III against Boguslawski alleged that he committed assault and battery upon Toby. Count IV against the District also alleged assault, and Count V against the District alleged negligence.

The District filed preliminary objections in the nature of a demurrer with respect to Counts II, IV and V. By memorandum and order of August 16, 2002, this court denied the District’s preliminary objections with respect to Count II and sustained the District’s preliminaty objections with respect to Counts IV and V, leaving the section 1983 claim the sole remaining count against the District.

STATEMENT OF FACTS

The complaint alleges that Toby was sexually assaulted in his fourth grade classroom by Boguslawski during the 1998-1999 school year. It is the Bowsers’ position that the District failed to take any measures to prevent Boguslawski from molesting Toby despite having prior knowledge that Boguslawski had previously molested other male students within the District. The Bowsers further allege that the District failed to adopt and implement a policy whereby acts of sexual abuse by its faculty would be discovered and reported to the proper authorities. The pertinent facts are as follows.

On the evening of March 29,1999, Toby informed his mother that Boguslawski had molested him and a classmate, Cody Montgomery. After questioning Toby further, the next day the Bowsers contacted the state police and reported the alleged molestation. A state trooper went to West Hills that same day to interview Boguslawski, three girls who were students in his class, and two or three other teachers. Russell Carson depo. at 5-12. One of the girls said she observed Toby sitting on Boguslawski’s lap and that Boguslawski’s one hand was on Toby’s stomach inside his shirt. Id. at 11-16. Another girl said she observed Toby sitting on Boguslawski’s lap with Boguslawski’s hand on Toby outside Toby’s shirt. Id. Following a state police investigation, Boguslawski was criminally charged in connection with the incident. At trial, Boguslawski was acquitted of all charges and eventually returned to West Hills Elementary School to resume teaching there. Id. at 38-39.

As evidence that the District had prior knowledge that Boguslawski had previously molested male students, the Bowsers offered the deposition testimony of Jay Toy. Toy testified that he had been a student of Boguslawski while attending Kittanning Township Elementary School in the mid- 1970s. Toy stated that when he was in fifth or sixth grade, he saw Boguslawski molest classmates Randy Woznak, Matt Smith and Jeff Smith in his classroom. Toy Depo. at 6, 17-19, 22, 24-31. Specifically, Toy said, when one of these boys would raise his hand for help, Boguslawski would kneel down beside the student’s desks, talk to the student, slide his hand up the person’s leg, place his hand on the boy’s genitals, and play with his penis and testicles. Id.

Toy said he reported this behavior to his mother, but not to anyone else. Id. at 17, 33-34. To his knowledge, his mother did not do anything but tell him to punch Boguslawski if he ever touched Toy. Id. at 19. Toy said the three students he observed being molested thought it was funny and would laugh about it. Id. at 19. Toy did not claim that he or anyone else ever informed the District of Boguslawski’s alleged behavior at the time it occurred.

Toy said that at least eight or nine years ago, he was looking at a West Hills Elementary School yearbook while his children were attending school there. Looking at the yearbook, he discovered that Boguslawski was a teacher at that school. Id. at 14. Toy said he became angry that Boguslawski was still teaching and also was concerned that his son, Matt, might be assigned to Boguslawski’s classroom the following year. Toy then went to the home of school secretary, Diane Bowser, a family friend, to talk to her about Boguslawski because he knew Diane was in charge of assigning children to teachers each school year at West Hills.

Toy said he told Diane in no uncertain terms that he did not want his boys assigned to Boguslawski’s class because Boguslawski was a child molester, and that he would pull his boys out of school if any of them were assigned to Boguslawski’s classroom. Id. at 13-14, 20-22. Toy said Diane, who had her own boy in Boguslawski’s class that year, acted as if she didn’t believe Toy, but agreed that Toy’s son, Matt, would not be assigned to Boguslawski’s classroom the next school year. Id. at 22-23. He admitted that he might have called Boguslawski a faggot during the conversation he had with Diane. Id. at 14.

Toy also admitted that he never told the police, the school or other parents that Boguslawski was a child molester. Id. at 21-23,31-32. Asked if he was concerned that his two boys were still in the same building with a teacher he believed was a child molester, he said, “You know, this is probably going to be a stupid answer from a parent, but as long as my children didn’t have him, it didn’t bother me.” Id. at 23. He gave essentially the same answer when asked why he never told anyone about the molestation he allegedly saw as a child prior to finding out that Boguslawski was teaching at West Hills Elementary, stating, “Just like whenever I was answering his questions, probably going to be stupid as a parent, I guess just long as my kids didn’t have him I guess it didn’t bother me.” Id. at 33.

Diane Bowser testified that Toy told her he did not want his boys in Boguslawski’s classroom because Boguslawski was gay or a faggot, although she could not remember the exact words Toy had used. Diane Bowser depo. at 8-13,17. It is undisputed that Diane did not report her conversation with Toy concerning Boguslawski to the building principal or to anyone else in the District. Diane Bowser depo. at 11. She explained her reasons for not reporting Toy’s allegation as follows:

“Q. His thoughts, did he seem to be upset?

“A. Well, he just said — I just don’t — he better not teach my kids, and I’ll come in there, and I’ll raise hell with the principal or whatever. Like I said, it was nine or 10 years. I don’t know the exact words. I’m just kind of — I just know he didn’t want them. So he didn’t have him. He never told me names of those students.

“Q. What students?

“A. On that, on that report [Toy’s signed statement to plaintiffs’ attorneys] that he said Mr. Boguslawski inappropriately touched. He never told me names of students. He never told me he touched him, and in my mind, if he feels that he is gay, that’s his opinion. I don’t care. I don’t care. You know, he did an excellent job. He was a friend of mine a friend at work, and I have never seen anything inappropriate, never. I never heard anything inappropriate about Mr. Boguslawski. And as a mother, as a parent if I thought there was anything that wasn’t right, I would have taken — I would have went to the right person, and I definitely wouldn’t have had my kid in his room, definitely.

“Q. You said you would have went to the right person?

“A. Well, I would have probably told the principal. If there was something inappropriate, I would have told the principal.

“Q. Did you tell him about the statements made by Jay Toy?

“A. Because it was just gay. It was just he was gay, and to me that’s not my call to degrade someone’s reputation. You know, you can be gay and be a teacher. You can be gay and be a doctor. This Jay Toy is a friend of ours, but he’s a very prejudice [sic] person, and I know that he’s prejudice about, you know, black and white, and so, I just thought, well, that’s your thoughts, and if you want to think that, that’s fine. You are an adult. You are allowed to think that. Like, I am. I have my thoughts, and your son won’t have him, and that was it. It was that simple. To me it wasn’t a big deal.

“Q. It apparently appeared to be a big deal to Mr. Toy, though, did it not?

“A. Just to say he didn’t want him in there.

“Q. Have you had other parents come to you and state similar things about him being gay?

“A. No.

“Q. This is the only parent that ever told you that?

“A. From what I can remember. Like I said, this was nine or 10 years ago. And when you work in a school where that is your area, you run into parents constantly. They want to tell you their thoughts, whether you want to hear it or not. I mean, I used to sit and watch baseball games in my car, watch my boys play so I didn’t have to sit out there and talk to parents. It’s just part of the job. It’s best to try and not get real involved with their personal thoughts. He didn’t want him in there. So his kid wasn’t in there.

“Q. This policy of not getting involved with their personal thoughts, is that your policy, or are you instructed to do that?

“A. Well, let’s put it this way, I try and not get involved. Nobody ever told me that. It’s just — I just think that’s part of being a secretary working in a school. You don’t want to get too involved because, then, I don’t know. It’s just — I just don’t want to know everybody’s business. If it has to do with school or their child, okay. Other than that, I really don’t want to hear, you know, and he came to me about his son, and he was not in his room. So that was it.” Id. at 10-12.

With respect to District training or policies concerning sexual harassment, Diane’s testimony was as follows.

“Q. Do you recall at that period of time that is from approximately 1993 up to two years ago what the policy was concerning complaints about teacher misconduct, sexual misconduct of any kind? Was there any policy at West Hills? Do you understand my question?

“A. No, I don’t.

“Q. Did you have any classes, training or anybody who said, listen, if someone brings up sexual misconduct, this is what you should do? Was there any guidelines?

“A. Well, probably in the past five years — I’m guessing, again, we have had in-services. Mostly it had to do with sexual harassment.

“Q. You mean sexual harassment from adults male/ female, female/male?

“A. I think, yeah.

“Q. Was there any training that you recall where there was ever any discussion about this type of conduct where you had an adult teacher with a child? Do you recall any training along those lines?

“A. No, I don’t. I think the sexual harassment was pretty much it. I think it was with another adult. I don’t know.” Diane Bowser depo. at 13-14.

Russell Carson, the principal of West Hills Elementary School from 1996 until 2003, testified as follows concerning school policy:

“A. I don’t believe a teacher or any educational person should be touching children in any manner.

“Q. Okay. Have you ever suggested that to your teachers?

“A. Yes.

“Q. When?

“A. The District has a sexual harassment policy for one instance that we do go over yearly, as an administrator that I do go over yearly with the staff. And that covers a wide range of not j ust teacher to student but teacher to teacher, administrator to teacher, covers pretty much everyone. That any type of sexual misconduct is not appropriate and that it can be reported and steps of how it will be investigated.

“Q. Okay, if a boy was, as this one girl suggested, was a fourth grade boy I believe sitting on Mr. Boguslawski’s lap and his hand was up his shirt, you’re saying no question in your mind, that’s not right, that’s inappropriate?

“A. I would use the word inappropriate, yes.

“Q. And which would have required discipline; is that correct?

“A. Absolutely.” Carson depo. at 16-17.

Asked to explain why he believed the contact described by the girls was inappropriate, he said, “I don’t believe a teacher or any educational person should be touching children in any manner.” Id. at 16. During a further exchange regarding school policy on sexual misconduct, Carson testified as follows:

“Q. Okay. And there is a clear reporting policy?

“A. Yes.

“Q. Who would it have been reported to if somebody had observed this or heard a student complain about it or whatever? Who do they go to?

“A. At West Hills at that time they would have come to me first.” Id. at 22.

Asked what he would do if a student or parent came to him with a complaint of improper contact, he explained:

“A. Well, then, as the building principal, I would investigate the complaint naturally.

“Q. How would you do that?

“A. Naturally you would interview, for instance if it was a student making this complaint, you would want to interview the student making this complaint, you would want to interview the student to find out what they’re saying. You would probably want to interview the student’s parents because they would probably also be aware of the situation. Hopefully the child had told the parents. You would want to speak to the person the complaint is made against. In this case, it would have been a teacher. And probably the teachers around, you know, that would be working most closely with that teacher. Probably if in that investigation, if there were other names given of students or any other witnesses, you would want to speak to all the witnesses, try to get a comprehensive idea of what did or didn’t happen.

“Q. Okay. At any point in this scenario, would this be turned over to law enforcement?

“A. It’s possible.

“Q. If there was an allegation of criminal misconduct?

“A. If, if I was — if the allegation lent itself to that, yes.” Id. at 22-24.

Carson admitted that he never conducted an investigation of the charges against Boguslawski, either before or after the criminal investigation and trial, despite the fact that his normal procedure would be to investigate any molestation charges by questioning the alleged victim, the teacher, and any other potential witnesses. He said this was because no one had asked him to investigate (the Bowsers had gone directly to the state police with their charges), he was present for the state police’s interviews of witnesses at school, he did not want to interfere with the ongoing criminal investigation, and Boguslawski was ultimately acquitted. Id. at 23-38. He also admitted that Boguslawski eventually returned to the school to teach, despite having engaged in what Carson considered inappropriate touching. Id. at 38-39.

Sharon Porterfield, another fourth grade teacher at West Hills Elementary School at the time, explained the school policy regarding inappropriate physical contact as follows:

“Q. Do you know if Armstrong County School District has any policy with regard to physical contact between teachers and students? Let me change the question. As of March of 1999, prior to that date, were you aware of a policy in effect with regard to what was appropriate and inappropriate for a teacher to do with regard to touching?

“A. We talked about this at the beginning of every school year. We would go over a booklet about sexual harassment with the principal, you know, basically.

“Q. Who told you this?

“A. Mr. Carson would review the sexual harassment handbook with us at in-service day every year, at the beginning of the year.

“Q. What do you remember about it?

“A. Just to report any type of inappropriate touching that’s either reported to you or that happens to you basically, that you know, children are not allowed to inappropriately touch children, you know. You are to report anything. And basically, the only thing that changed from year to year was who the person was you needed to report things to.

“Q. All right. Who were you to report sexual harassment things to?

“A. To the principal first.

“Q. Okay.

“A. And then to, it was a person who was in charge of human relations. You know. You reported to your principal first and then to the human relations person.

“Q. So you were to report it as soon as you became aware of it?

“A. Yes.

“Q. Okay. And inappropriate touching was? Can you be more specific what you were told that was?

“A. Well, I pretty much, you know, like sometimes when things would happen with the children, you would go and consult your principal and say, is this inappropriate touching or is this inappropriate suggestive language from this child to this child. I’m telling you, you know, what I overheard or what I saw. Is this inappropriate? Do I need to make a report about this? You know. That type of thing. You would definitely have checked it out with your principal if you were doing your job.” Porterfield depo. at 38-39.

DISCUSSION

We next turn to a consideration of the law in this case. Summary judgment is appropriate where, after the close of discovery, 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. Pa.R.C.P. 1035.2(2). Summaiy judgment is only proper when the moving party can demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Buckno v. Penn Linen & Uniform Service Inc., 428 Pa. Super. 563, 631 A.2d 674 (1993). Where more than one conclusion can be drawn from the facts, summary judgment is likewise inappropriate. Askew by Askew v. Zeller, 361 Pa. Super. 35, 521 A.2d 459 (1987). The record must be reviewed in a light most favorable to the non-moving party and if any doubt exists as to the existence of a genuine issue of material fact, it must be resolved against the moving party. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 608 A.2d 1040 (1992). The burden is on the party moving for summary judgment to prove the non-existence of any genuine issue of material fact. Lyman v. Boonin, 535 Pa. 397, 635 A.2d 1029 (1993).

Section 1983 states in pertinent part:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . . , subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation ofany rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law ...42 U.S.C. §1983. (emphasis added)

When a section 1983 claim is asserted against a governmental entity, a two-prong analysis is required. The court must ascertain (1) whether the plaintiff’s harm was a constitutional violation, and (2) if so, whether the governmental entity is responsible for that violation. Collins v. Harker Heights, 503 U.S. 115, 120 (1992). For liability to attach, both questions must be answered in the affirmative.

In this case, it is clear the sexual molestation claimed to have been suffered by Toby Bowser, if proven, would constitute a constitutional violation. “[A] schoolchild’s right to personal security and to bodily integrity manifestly embraces the right to be free from sexual abuse at the hands of a public school employee. The substantive component of the Due Process Clause [of the Fourteenth Amendment] protects students against abusive governmental power as exercised by a school.” Doe v. Claiborne County, Tennessee, 103 F.3d 495, 506-507 (6th Cir. 1996). See Stoneking v. Bradford Area School District, 882 F.2d 720, 726 (3d Cir. 1989), cert. denied, 493 U.S. 1044 (1990). Having answered the first question in the affirmative, we will proceed to the question of whether the District can be held responsible for that constitutional violation under the facts of record.

The general standard for holding a governmental entity liable under section 1983 is as follows:

“[A] local government may not be sued under section 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under section 1983.” Monell v. New York Dept. of Social Services, 436 U.S. 658, 694 (1978). (emphasis added)

As the Supreme Court explained in Monell:

“Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liable solely because it employs a tort-feasor— or, in other words, a municipality cannot be held liable under section 1983 on a respondeat superior theory.” Id. at 691.

In Gottlieb v. Laurel Highlands School District, 272 F.3d 168 (3d Cir. 2001), the Third Circuit Court of Appeals stated:

“We have recognized that a municipality will be liable for the constitutional violations of a state actor if it acts with deliberate indifference to the consequences [and] established and maintained a policy, practice or custom which directly caused constitutional harm. . . . This causal connection can be established by alleging ‘thatpolicymakers were aware of similar conduct in the past, but failed to take precautions against future violations, and that this failure, at least in part, led to their injury.'” Id. at 175-76. (citations omitted) (emphasis added)

In the instant case, plaintiffs allege that the District failed to take any measures to prevent Boguslawski from molesting Toby despite the District’s knowledge that such acts had been perpetrated by Boguslawski on other male students. For purposes of deciding whether summary judgment should be granted, the court must view the evidence in the light most favorable to the plaintiffs. The court finds that Toy’s testimony, if accepted as credible at trial, would be sufficient to establish that at least eight or nine years ago (i.e., around 1996 or 1997), Toy informed the school secretary at West Hills that Boguslawski was a child molester. The question is (1) whether that conversation, by itself, could legally be considered actual knowledge on the part of the District that Boguslawski was a child molester, and (2) whether plaintiffs have produced evidence sufficient to create a genuine material issue of fact concerning the Bowsers’ claim that there was a District custom, practice or policy of deliberate indifference to sexual misconduct by teachers with students.

Plaintiffs claim it is a jury question as to whether Toy’s statement to Diane Bowser that Boguslawski was a child molester was sufficient to put the District on notice that male students were in substantial danger of being molested. The court does not agree. For the District to be liable under section 1983, the plaintiffs must show that an appropriate person at the school had actual knowledge of the conduct in question. Assuming that Toy told Diane Bowser in 1996 or 1997 that Boguslawski was a child molester, it is clear from relevant caselaw that her knowledge could not be imputed to the District.

In Johnson v. Elk Lake School District, 283 F.3d 138 (3d Cir. 2002), a former student sued the high school guidance counselor, school district, school board and school superintendent under section 1983, claiming that a school counselor had sexually harassed and abused her for over two years. The district court granted summary judgment for the district, board and superintendent, concluding that the plaintiff had produced no evidence that the counselor’s supervisors had any knowledge of any danger of abuse at a time when they could have acted to prevent the plaintiff’s injuries.

On appeal, the Third Circuit affirmed the grant of summary judgment. The court said that any comment allegedly made to a high school counselor of “something funny” going on between a student and another counselor, without evidence of any specific mention of sexual harassment or abuse, did not put the counselor to whom the comment was allegedly made on notice as to an ongoing constitutional violation by the other counselor. Id. at 145 n.l.

The court went on to explain that even if the comment did put the counselor on notice, this conversation would still fail to establish section 1983 liability on the part of the school district, board and superintendent, since a guidance counselor does not qualify as the type of policy-making or supervisory official on account of whose inaction a municipality may be held liable under section 1983. Id. For that reason, the plaintiff had “failed to establish, as she must under... Monell... that her injuries were caused by a ‘policy or custom’ of the administration.” Id. Because there was no credible evidence demonstrating that school officials knew of the alleged risk of sexual abuse at a time at which they could have prevented the alleged injuries, the court ruled that the district, board and superintendent could not be held liable under section 1983. Id.

The court went on to address the plaintiff’s contention that even if the school administration had not been aware of the counselor’s abuse of the’plaintiff, it could be held liable “for failing to respond to the danger posed by Steven’s well-known proclivity for sexually harassing and abusing female students.” Id. “In other words, ... [plaintiff was] attempting] to demonstrate that the administration had a custom of being deliberately indifferent to . . . [the counselor’s] potential for committing constitutional violations, and that this ‘deliberate indifference’ was the proximate cause of the injuries she sustained.” Id.

The court said even if it were true that the counselor had a proclivity for walking too closely to female students in the hallway, frequently calling female students out of class to his office, and giving gifts to female students, the district, board and superintendent were not liable absent evidence that these alleged incidents were ever brought to the attention of a supervisory or policy-making official of the administration before or during the time of the alleged abuse of the plaintiff. Id. The court went on to say:

“Moreover, even if school officials had been made aware of these stories before or during Steven’s alleged improper relationship with Johnson, we share the district court’s reluctance ‘to impose on the district an obligation to treat as true, all rumors, until proven otherwise. ’ In the absence of any direct complaints made to school officials, the mere floating around of unsubstantiated rumors regarding a particular employee — particularly in the high school setting, which is notoriously rife with adolescent gossip — does not constitute the kind of notice for which a school district can be held liable under Monell’s ‘policy or custom’ requirement.” Id.

Based on the above reasoning, the circuit court affirmed the district court’s granting of summary judgment in favor of the district.

Johnson is clearly dispositive here. The plaintiffs have failed to produce any competent evidence that the District was aware of similar conduct by Boguslawski in the past but failed to take precautions against future violations. To the contrary, the evidence shows that the District had no prior complaints concerning Boguslawski’s having improperly touched students. Nor have plaintiffs adduced any evidence which tends to show that the District had a custom of ignoring such complaints or that any such custom was the cause of Toby’s alleged injury. Cf. Stoneking, 882 F.2d at 728-29, 730-31 (evidence that over a four-year period high school principal and assistant principal received at least five complaints about sexual assaults of female students by teachers and staff, that principal recorded these and other allegations in a secret file at home rather than in the teacher’s personnel files, that the defendants gave the offending teachers excellent performance evaluations, and that the principal and vice-principal discouraged and/or intimidated students and parents from pursuing complaints, on one occasion by forcing a student to publicly recant her allegation, presented sufficient evidence to overcome qualified immunity defense by principal and assistant principal against charges that they had a custom or practice of tolerating, condoning or encouraging sexual harassment).

The plaintiffs also argue that the District gave inadequate training on reporting allegations of improper physical contact. Specifically, they point to Diane’s failure to report Toy’s conversation concerning Boguslawski in the mid-1990s to the building principal as evidence that the training of the school staff regarding reporting was inadequate. In addition, they claim that Diane’s vagueness about the details of the harassment policy and the supposedly different versions of the policy given by Carson and Porterfield further highlights the inadequacy of the training given the school staff.

In City of Canton v. Harris, 489 U.S. 378 (1989), the idea of policy or custom was expanded to include inadequacy of training. The Supreme Court explained:

“Only where a municipality’s failure to train its employees in a relevant respect evidences a ‘deliberate indifference’ to the rights of its inhabitants can such a shortcoming be properly thought of as a city ‘policy or custom’ that is actionable under section 1983. As Justice Brennan’s opinion in Pembaur v. Cincinnatti, 475 U.S. 469, 483-484, 106 S.Ct. 1292, 1300-1301, 89 L.Ed.2d 452 (1986) (plurality) put it: ‘Municipal liability under section 1983 attaches where— and only where — a deliberate choice to follow a course of action is made from among various alternatives’ by city policymakers. See also, Oklahoma City v. Tuttle, 471 U.S., at 823, 105 S.Ct., at 2436 (opinion of Rehnquist, J.). Only where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice by a municipality — a ‘policy’ as defined by our prior cases — can a city be liable for such a failure under section 1983.” Id. at 389. (bold emphasis added)

The court went on to say:

“Monell’s rule that a city is not liable under section 1983 unless a municipal policy causes a constitutional deprivation will not be satisfied by merely alleging that the existing training program for a class of employees, such as police officers, represents a policy for which the city is responsible. That much may be true. The issue in a case like this one, however, is whether that training program is adequate; and if it is not, the question becomes whether such inadequate training can justifiably be said to represent ‘city policy.’ It may seem contrary to common sense to assert that a municipality will actually have a policy of not taking reasonable steps to train its employees. But it may happen that in the light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need. In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury.” Id. at 389-90.

Plaintiffs have failed to produce any evidence of improper training sufficient to demonstrate a custom of being deliberately indifferent to the rights of students to be free from improper physical contact by teachers. The undisputed evidence shows that the District had a policy concerning sexual harassment and the reporting of any improper contact in place, and that teachers and staff were briefed on that policy at the beginning of every year. Evidence that not all District employees might not have completely understood or followed the policy does not suffice to create a genuine issue of material fact regarding improper training, nor does the fact that Diane Bowser chose not to report Toy’s allegation that Boguslawski was a child molester. As the deposition testimony makes clear, regardless of the exact words Toy used, his intent was simply to keep his children out of Boguslawski’s class. He did not express any concern for the other children in Boguslawski’s class or even have any concern about having his children in the same building with Boguslawski. Given this, Diane Bowser’s explanation of how parents frequently came to her with various opinions and requests about teachers, and her belief that Toy was simply prejudiced against gays, Diane’s decision not to report Boguslawski’s remarks was not unreasonable. Diane’s failure to report Toy’s concern certainly does not create a genuine issue of material fact concerning the existence of inadequate training that rises to the level of “deliberate indifference” on the part of the District to charges of sexual harassment.

For all the above reasons, the court finds that the District has met its burden of showing that there is no genuine issue of material fact and that it is entitled to summary judgment as a matter of law. Therefore, the court will grant the District’s motion for summary judgment.

An appropriate order will be entered.

ORDER

And now, to wit, December 22, 2005, after due consideration of defendant Armstrong County School District’s motion for summary judgment, it is ordered, adjudged and decreed that summary judgment against plaintiffs and in favor of defendant Armstrong County School District be and is hereby granted.

      . Although the defendant’s correct name is Armstrong School District, the court will use the name Armstrong County School District because that is the name under which the district has been sued.


author: JOYCE, J.,

text:
    Roberts v. Nicolia

      John C. Evans, for plaintiff.

      Francis J. Klemensic, for defendant.
    July 20, 1990
   JOYCE, J.,

This matter is before the court on defendant’s motion to compel discovery. The specific issue is whether the plaintiff should be ordered to execute authorizations to release all her medical records for inspection.

The court is fully aware that an individual’s medical record may contain matter which is not subject to discovery. However, a defendant has the right to discover information contained in a plaintiff’s medical record which may bear on the physical injuries for which the plaintiff seeks compensation. These two divergent, yet legitimate interests have been reconciled and provided for in the Pennsylvania Rules of Civil Procedure.

The rules allow discovery of any matter, not privileged, which is relevant to the subject matter of the pending action. Rule 4003.1. The courts have the power through protective orders to control and limit discovery. Thus a party desiring the protection afforded by the rules need simply request it.

Presently, the information sought is clearly not privileged. 42 Pa.C.S. §5929. However, plaintiff argues that the information sought is irrelevant, will not lead to relevant matter and is personal and confidential. Obviously it is plaintiff who knows what medical records fall within the above classifications, not defendant nor the court. Therefore, it is plaintiff who should seek the protection she claims she is entitled by utilizing rule 4012. Upon presentment of good cause shown, the power of the court is adequate to furnish the requested protection.

ORDER

And now, July 20, 1990, it is hereby ordered and decreed that defendant’s motion to compel is granted.


author: MELLENBERG, J.,

text:
    Commonwealth v. Jessup

      Carol Doup, assistant district attorney, for the Commonwealth.

      William C. Wickkiser, for defendant.

      September 27, 1990
   MELLENBERG, J.,

Defendant, Scott A. Jessup, has filed an appeal from a conviction for the summary offense of speeding. Defendant has asked, by pretrial motion, that this court dismiss the charge because of a delay by the district justice in rendering his decision.

On January 21, 1989, defendant was cited for speeding under section 3362(a)(2) of Title 75, the Motor Vehicle Code. Defendant pled not guilty, and a hearing was held before District Justice Theodore L. Russiano on April 14, 1989, after which the district justice took the matter under advisement. On November 20, 1989, seven months after the hearing, defendant was notified by letter of his conviction and also of his right to file an appeal de novo within 30 days. An appeal was filed on December 14, 1989. A hearing was originally scheduled for May 21, 1990 but was continued on two separate occasions. Oral argument was heard on defendant’s pretrial motion to dismiss on August 15, 1990.

The issue, as framed by the parties, is whether the seven-month delay between the hearing before the district justice and the announcement of the justice’s verdict constitutes such prejudicial error as to afford dismissal of the charge.

The Pennsylvania Rules of Criminal Procedure provide that a defendant shall not be discharged nor shall a case be dismissed because of a defect in the procedures pertaining to summary offenses unless defendant raises the defect before the conclusion of the summary trial and the defect is prejudicial to the rights of the defendant. Pa.R.Crim.P. 90. The court or issuing authority must determine that there is actual prejudice to the rights of the defendant. Comment to Pa.R.Crim.P. 90, see also, Commonwealth v. McGinley, 386 Pa. Super. 547, 552, 563 A.2d 518, 521 (1989). Furthermore, a finding of prejudice under Rule 90 requires a showing of manifest and palpable harm resulting from the defective citation or procedure. Id., citing Blosenski Disposal Service v. Commonwealth, Department of Environmental Resources, 116 Pa. Commw. 315, 543 A.2d 159 (1988).

The Pennsylvania Rules of Criminal Procedure specifically provide that, in summary cases, the verdict and sentence shall be announced in open court immediately upon conclusion of the trial before the district justice. Pa.R.Crim. P. 83(d). The goal of the rules governing summary proceedings is a prompt adjudication before the issuing authority. Commonwealth v. Wadzinski, 239 Pa. Super. 76, 361 A.2d 790 (1976).

Quite obviously, the district justice in this instance did not follow the procedures as outlined in the Pennsylvania Rules of Criminal Procedure. While it may be true that defendant agreed to the district justice taking the case under advisement, we find a seven-month advisement period regarding a speeding offense results in manifest and palpable harm to defendant. Thus, we believe that the seven-month delay between the date of hearing and notification of the verdict rises to the level of prejudice to defendant.

For the foregoing reasons, defendant’s pretrial motion to dismiss the charge is hereby granted.

ORDER

And now, September 27, 1990, after oral argument and consideration of the briefs of the parties, it is ordered that defendant’s motion for dismissal of the charge is granted, and the summary citation is dismissed.


author: SMITH, S.J.,

text:
    Commonwealth v. John Anderson Excavating Corporation

      Jesse A. Torisky, assistant district attorney, for the Commonwealth.

      Thomas A. Livingston, for defendant.
    October 24, 1990
   SMITH, S.J.,

Defendants are charged with involuntary manslaughter arising out of the death of workman, Claire A. Grossman, an employee at a construction site. The decedent was killed on October 18, 1989, when the trench in which he was working collapsed. The Honorable Paul A. Zavarella, President Judge of the Court of Common Pleas of Allegheny County, has assigned this court as a committing magistrate to preside over the preliminary hearing. Presently before the court is defendants’ motion to dismiss.

Defendants in this case contend that the criminal charges of involuntary manslaughter should be dismissed in that the supremacy clause of the United States Constitution (Art. VI, cl. 2) dictates that the Occupational Safety and Health Act (29 U.S.C. §651 et. seq.) pre-empts the involuntary manslaughter charges arising from this incident. Defendants claim that Congress intended to expressly pre-empt state law in this area and cite 29 U.S.C. §667(a) and (b):

“(a) Nothing in this chapter shall prevent any State agency or court from asserting jurisdiction under State law over any occupational safety or health issue with respect to which no standard is in effect under section 655 of this title.

“(b) Any State which, at any time, desires to assume responsibility for development and enforcement therein of occupational safety and health standards relating to any occupational safety or health issue with respect to which a Federal standard has been promulgated under section 655 of this title shall submit a State plan for the development of such standards and their enforcement.”

Defendants contend that because Pennsylvania did not receive approval from OSHA officials pursuant to the above statute, the charges must be dismissed. Defendants also argue in the alternative that implied pre-emption exists because congress has shown an intent to occupy this field by creating a scheme of regulations that is so dominant that there is no room for the states to supplant it; and in addition, that pre-emption exists here because state law actually conflicts with federal law.

Although the Commonwealth and defendants have thoroughly briefed this area of law, apparently controlling Pennsylvania authority does not exist and it appears that this may be a matter of first impression in the Commonwealth. An examination of case law from other jurisdictions cited by the parties persuades the court that OSHA does not pre-empt the application of state criminal laws simply because the conduct in question occurs in the workplace where safety and health standards exist to protect workers in their occupations.

The claim that state criminal prosecutions for involuntary manslaughter arising out of workplace conduct would create safety standards unapproved by OSHA under section 667 is rejected. The statement of findings and declaration of purpose and policy found in section 651 of the Occupational Safety and Health Act indicates an overall goal of establishing guidelines for a safe workplace. It is not the purpose of the Crimes Code to establish safe workplace standards, rather it is generally “To forbid and prevent conduct that unjustifiably inflicts . . . substantial harm to individuals or public interest” (Crimes Code, section 104), and specifically in this case, prohibit “the doing of a lawful act in a reckless or grossly negligent manner” (Crimes Code, section 2504(a)). The prohibition contained in section 2504(a) applies to all persons in the Commonwealth regardless of where and when the conduct takes place. To argue that a person who commits reckless or grossly negligent conduct in the workplace is insulated from criminal prosecution and is subject to the less severe penalties contained in section 666 of the OSHA flies in the face of reason. Such a premise would exempt criminal acts in the workplace from prosecution and would hold such persons to a lower standard of conduct than that applied to all other citizens of the Commonwealth.

For the foregoing reasons, defendant’s motion to dismiss will be denied.

ORDER

And now, October 24, 1990, it is ordered that defendants’ motion to dismiss be and the same is hereby denied.