author: SCHMEHL, J.L., J,

text:
    Constanzo v. Yetzer

      Richard T. Kupersmith, for plaintiffs.

      Charles D. Younger, for defendant City of Reading.

      Frederick B. Buck, for defendant Reading School District.
    August 16, 2007
   SCHMEHL, J.L., J,

At issue is an appeal by plaintiffs with regard to this court’s decision to both grant the preliminary objections of defendant City of Reading, by an order dated May 26, 2004 as well as an order dated January 26, 2004, granting defendant Reading School District’s motion for judgment on the pleadings, therefore dismissing the case against both municipal defendants. Plaintiffs filed a notice of appeal on June 21, 2007 from both orders. The thrust of the court’s decision was that plaintiffs’ claims did not fit under any exception to the Municipal Tort Claims Act and therefore both municipal entities were immune from suit. On July 3,2007, plaintiffs filed a concise statement of the matters complained of on appeal.

This appeal stems from the commencement of an action in 2002, based upon the following facts. On April 7, 2000, around 1:22 p.m., the minor plaintiff, Albert Constanzo was seriously injured when he was struck by a 1979 Jeep Quadra-Trac driven by defendant Rosemarie Yetzer as he attempted to cross 13th Street at the comer of Oley Street and 13th Street in Reading, Berks County, Pennsylvania. Albert Constanzo suffered numerous fractures to both legs, as well as other serious injuries to his head, neck, back and arms. At the time of this accident, no crossing guard was present at the intersection. As a result of the accident, Albert, through his mother Milagros, has brought suit against the city and the district, the driver, Rosemarie Yetzer, as well as her husband, John Yetzer, the registered owner of the 1979 Jeep.

Plaintiffs’ concise statement of matters complained of on appeal focuses almost exclusively on whether a crossing guard is a traffic control device under Pennsylvania law, specifically 42 Pa.C.S §8542(b)(4). For the following reasons, this court believes the immediate appeal should be denied.

Plaintiffs argue that crossing guards using devices to control traffic, as well as the crossing guards themselves, are traffic control devices under 42 Pa.C.S. §8542(b)(4). That section, in its entirety, reads as follows:

“Trees, traffic controls and street lighting.—A dangerous condition of trees, traffic signs, lights or other traffic controls, street lights or street lighting systems, under the care, custody or control of the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.” 42 Pa.C.S. §8542(b)(4).

Nowhere in that language is a human being, let alone a crossing guard mentioned. The very language used specifically and unmistakably describes inanimate devices and theoretical situations. A “dangerous condition,” for example, is a straightforward noun described by a qualifying adjective. A “person” is not a “condition”. This is a grammatical impossibility; the equivalent of saying a “person” is “foreseeability”, or that a person with money in their pocket is “currency”. It simply makes no logical sense, and is too great a leap for this court to take. Similarly, it is far too great a departure to say that a “person” is a “tree”, “traffic sign”, “light” or “other traffic control”, “street light” or a “street lighting system.” The statute, as straightforwardly written as it is, must be strictly construed not to include people.

Even assuming, arguendo, that not having a crossing guard present is a dangerous condition, the plaintiffs’ argument would still fail. Again, a person cannot be a condition, let alone a dangerous condition. For that matter, this court is uncertain how a school’s knowledge of the absence of a crossing guard could be actual notice of a dangerous condition. There are simply too many flaws in plaintiffs’ interpretation of the statute. The statutory language is clear and unambiguous, and further, it is neither overbroad nor insufficient, and this court acted properly in its reading of the statute, and in its orders based thereupon.

Plaintiffs have also utilized case law in prior filings to support their contentions. Plaintiffs have cited Mascaro v. Youth Study Center, 514 Pa. 351, 356, 523 A.2d 1118, 1121 (1987) to support their contention that crossing guards and the devices they use are traffic control devices. Mascaro held that the “real property” exception to sovereign immunity applied to a detention center that allowed an inmate to escape. Id. at 360, 523 A.2d at 1123. Plaintiffs argued that because Mascaro held that a government agency may be liable for the care and control of property within its possession, that the term “traffic controls” must include things besides lights and signs that control the flow of traffic, such as crossing guards and police officers. This court is simply unwilling to paint with such a broad brush.

It is far too great a leap and a serious misapplication of law to rule that since 42 Pa.C.S. §8542(b)(3) (which lists property in possession of a local agency) could also include a detention center, i.e., a piece of property, then section 8542(b)(4) should include living, breathing people as traffic control devices. It is not a departure to classify a piece of real property as a piece of real property. However, it is a grand departure (and, not inconsequentially, a rewriting of the statute) to call a person a light bulb. Mascaro is practically irrelevant to this appeal, and is in no way influential in this case.

By contrast, both the city and the district rely on Erney v. Wunsch, 35 D.&C.3d 440, 444 (1983), which states unequivocally that a crossing guard is not a traffic control device. Plaintiffs correctly point out that this is merely a court of common pleas decision and thus has limited precedential value. However, the case was favorably cited by the Third Circuit in Smith v. City of Chester, 851 F. Supp 656, 658 (1994), and referenced in such a way as to imply the Pennsylvania Supreme Court would likely agree with the Erney reasoning. In the same case, but in an earlier proceeding, the United States District Court for the Eastern District of Pennsylvania reached the same conclusion, that a crossing guard is not a traffic control device. Smith v. City of Chester, 842 F. Supp. 147 (E.D. Pa. 1994). These prior decisions must all be considered when deciding the issues of this case, and this court approached them with appropriate respect in reaching its own conclusions.

Finally, the city cites Robinson v. City of Philadelphia, 666 A.2d 1141, 1143 (Pa. Commw. 1995) which held, much as this court does today, that section 8542(b) (4) applies only to inanimate objects, and not to human crossing guards. Even without considering whatever precedential value these opinions may have, the very fact that numerous courts have all reached the same conclusion is telling, and this court agrees with such reasoning. There is very limited case law on this topic, but all the case law available supports the positions of the city and the district, as well as the decisions of this court to date.

Ultimately, Pennsylvania statutes and case law are squarely behind the city and the district, and are completely unsupportive of plaintiffs’ arguments. The district and the city only have liability if there is a “malfunction” or a defect to a traffic control device. A crossing guard simply cannot be considered a traffic control device under the law for the aforementioned reasons.

Regardless of the law, a little boy was hurt, and the city and the district should do everything in their collective powers to ensure that such an accident does not occur again. Parents should be able to take comfort in the knowledge that the pedestrian activity of walking to and from school is free from certain perils. They should not have to add this daily activity to the list of dangers their children face on a regular basis. Further, it should go without saying that a crossing guard who is supposed to be on duty at a specific place during a specific period of time should be there barring an emergency, and in the event of an emergency, a back-up should be readily available. The parents and school-going children of Berks County deserve and should expect nothing less. It is the adamant hope of this court that even though the City of Reading and the Reading School District are free from “legal” liability in this matter, they take a thorough and concentrated look at their policies to make sure that this type of accident does not happen in the future. The law is very clear on this issue, and both the city and the district were properly dismissed as defendants to this action.

For all of the reasons stated herein, this court respectfully requests that the instant appeal be denied.

      . Plaintiffs contend in their concise statement that the actions taken by the city and the district were negligent, and they list elements that might support that contention. The real issue is not whether someone was or was not negligent. The issue in this appeal is whether, under Pennsylvania law, the city and the district can properly be sued, and whether this court was correct in issuing the orders at issue in this case. Whether or not the city was negligent is irrelevant, and this court will not address those portions of the concise statement offering such arguments.

      . It is somewhat noteworthy that this is the only case cited by plaintiffs, and it is not remotely on point. This is mentioned only to point out the difficulty of plaintiffs in finding legal support for their arguments, and not meant to belittle their position in any way.


source: Caselaw Access Project

author: DiVITO, J,

license: Public Domain

text:
    Appeal of MAJ Entertainment Inc. v. Zoning Board of Adjustment of the City of Philadelphia

      Kenneth A., Young, for appellant.

      Cheryl L. Gaston, for appellees.
    December 7, 2006
   DiVITO, J,

PROCEDURAL HISTORY

MAJ Entertainment Inc., has appealed from an order issued by the court, affirming a decision of the Zoning Board of Adjustment of the City of Philadelphia (ZB A) denying an appeal from a cease operations order issued by the Philadelphia Department of Licenses and Inspections on November 13, 2005, against a property located at 712-714 South Street, Philadelphia. Following a public hearing held on January 18, 2006, the ZB A made findings of fact and reached conclusions of law. Having reviewed them, as well as the entire record in this matter, it is the suggestion of the court that MAJ’s appeal be rejected.

FACTUAL HISTORY

On July 11, 2000, MAJ obtained Use Registration Permit no. 437206, which allowed it to operate a public eat-in restaurant only on floors 1,2 and 3 of 712-714 South Street. The permit also allowed accessory live entertainment and dancing by patrons, not as defined in 14-1605 of the Zoning Code and not to exceed 25 percent of the gross floor area of the third floor only, with accessory storage in the basement. Upon obtaining the permit, MAJ opened an establishment under the name “Kama Sutra”. Kama Sutra, according to the facts, was open only Fridays and Saturdays and was operated as a private club, and not as a restaurant open to the general public. Persons wishing to patronize the establishment were required to pay various fees depending on their gender and other criteria to enter it and, once inside, were permitted to engage in adult consensual sexual activity with other like-minded patrons on the club’s second floor. Kama Sutra made use of various media outlets to inform the public of this aspect of the enterprise and of the activities that could be engaged in inside it.

Once the appropriate Philadelphia Municipal Authorities learned of what was taking place inside Kama Sutra, a cease operations order was posted on November 13, 2005 directing that Kama Sutra stop maintaining and/or operating a restaurant, contrary to the approved permit, and cease operating and/or maintaining a sex club and a private club without having obtained the appropriate zoning and/or use permits. Kama Sutra responded by filing a petition with the ZBA which, as noted above, dismissed the appeal and denied MAJ’s request for a stay.

DISCUSSION

MAJ has set forth five issues in its 1925(b) statement. Having carefully reviewed those issues, it is clear that they are meritless and, therefore, MAJ’s appeal should be denied. In its first issue, MAJ asserts that the cease operations order issued by the City of Philadelphia was promulgated erroneously because MAJ held valid permits which permitted it to operate a sex club and because the operation of a sex club violated no laws or zoning ordinances of the City of Philadelphia. Based on these same reasons, MAJ claims in its second issue that the ZBA erred in refusing to stay the cease operations order. Since both issues involve the propriety of the cease operations order, they will be consider together.

In cases such as the instant one, where the lower court does not receive any additional evidence, the standard of review is limited to determining whether the ZBA committed an abuse of discretion or an error of law. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 554, 462 A.2d 637, 639 (1983). Here, the cease operations order, which the ZBA refused to lift was issued because the activities being engaged in inside Kama Sutra, specifically, dancing and live entertainment, violated a 1988 agreement reached between parties not involved in the present matter, which such agreement prohibited, inter alia, dancing and live entertainment, and because the use of the facilities to operate a sex club was not a use incidental to the use permitted by the licenses issued for the premises.

This court finds the issuance of the cease operations order and the ZBA’s refusal to stay the order are both supported by the record and the law. First, with respect to the 1988 agreement, MAJ agreed with the ZBA at the hearing before it, that the provisions of the 1988 agreement ran with the land and thus, were still in effect in 2000, when MAJ received its licenses and pennits. (N.T. 1-18-06, pp. 32-41.) Thus, with respect to this point, it is clear that neither the Department of Licenses and Inspections or the ZBA erred in issuing and not lifting the cease operations order based on the 1988 agreement which prohibited the activity taking place in Kama Sutra.

In addition, the cease operations order was issued properly and the ZBA also ruled correctly in refusing to lift the cease operations order based on the fact that the property was not being used in accordance with the permit and license issued for the property. While Kama Sutra had a restaurant license and a dance permit, they did not permit Kama Sutra to run a private sex club. The restaurant license, for example, permitted the use of the premises for a restaurant open to the general public and not a business catering only to those interested in engaging in public sex acts. Given this, it is clear that Kama Sutra was being utilized in a manner not consistent with the permit and license issued by the city and thus was properly ordered closed on account of this.

In response to the ZB A’s finding that Kama Sutra was being used to house activities outside the scope of its license and permit, MAJ argued that the use of the premises as a private sex club was incidental to its use as a restaurant. It also argued that since Philadelphia’s Zoning Code does not expressly prohibit operating a sex club, the cease operating order should not have been issued and the ZBA should have lifted it.

Clearly, the ZBA ruled correctly in not lifting the stay on these grounds and in failing to find that the cease operations order had been issued erroneously for, clearly, operating a sex club was not an activity incidental to the operation of a restaurant/dance club. An incidental or accessory use is one which is subordinate to and customarily incidental to the main use of a property. See section 14-101 .(2) of the Philadelphia Zoning Code. It is quite a stretch to say, as MAJ suggests, that the sexual activities engaged in inside the club arose out of the customary operation of the restaurant.

In addition, MAJ’s claim that the cease operations order should not have been issued and thus should have been lifted because no law or provision of the Zoning Code prohibits operating a sex club was properly rejected by the ZBA. Merely because an activity is not specifically prohibited by the Zoning Code does not mean that someone may engage in that activity. See Strunack v. Ecker, 283 Pa. Super. 585, 424 A.2d 1355 (1981), reversed on other grounds; Miller v. Johnson, 496 Pa. 290, 436 A.2d 1187 (1981); South Whitford Associates Inc. v. Zoning Hearing Board of West Whiteland Township, 157 Pa. Commw. 387, 395-96, 630 A.2d 903, 907 (1993).

Accordingly, for all of the foregoing reasons, MAJ’s first two claims should be deemed meritless.

MAJ next alleges that this court erred by failing to consider a copy of correspondence dated August 8, 2001, written by MAJ’s business attorney to Ms. Claire Gaztner, the Zoning Commissioner of the City of Philadelphia. This court avers that it did consider the letter, as did the ZBA, in deciding to affirm the decision of the ZBA. Thus, this issue should be rejected.

Fourthly, MAJ argues that both this court and the ZBA erred in finding that an agreement reached between a former tenant of the property and the city applied to MAJ. As noted in the discussion of the first two issues herein, MAJ agreed that the agreement in question did apply to the premises. Thus, this claim should be rejected.

Finally, MAJ argues that the ZBA and this court erred in finding that non-commercial adult consensual activity is prohibited by the Philadelphia Zoning Code and is not a use incidental to operating a restaurant with live entertainment and dancing. A review of the ZBA’s findings of fact and conclusions of law shows that the ZBA did not rule that non-commercial adult consensual sexual activity is prohibited by the Zoning Code. Rather, it found, inter alia, that the premises were not being used in accordance with the license and permit issued for the premises and that the sexual activity was not activity incidental to the lawful use of the premises. In addition, this court never made such a finding. Given this, MAJ’s claim that it was error for the ZBA and this court to find that the Zoning Code prohibits consensual sexual activities should be deemed merit-less.

As to MAJ’s claim that the ZBA and this court erred in not finding that the sexual activity constituted an incidental use, that issue has already been discussed herein and found to be meritless. No further discussion is necessary thereon.

CONCLUSION

Based on the foregoing, the decisions reached in this matter should be affirmed.


author: WECHT, J,

text:
    Amrhein v. Amrhein

      Christina M. Amrhein, pro se.

      Iphigenia Torlidas, for defendant.
    September 21, 2006
   WECHT, J,

Plaintiff Christina M. Amrhein (Mother) appeals this court’s May 16, 2005 order awarding primary custody of the parties’ two minor children to defendant Michael Joseph Amrhein (Father).

BACKGROUND AND PROCEDURALHISTORY

The parties married on August 29,1992. Two children were born of the marriage: Brittany (date of birth—09/17/89) and Dayna (date of birth—09/17/96). Father filed protection from abuse (PFA) petitions against Mother that resulted in the entry of temporary orders against her on September 2 and October 14,2003 (per the Honorable Kathleen Mulligan, J., and the Honorable Randal Todd, J., respectively). By consent order dated October 22, 2003, Father was granted primary custody of the children. (Rl. at 7.) The October 22, 2003 order (per the Honorable Michael O’Malley, J.) vacated the temporary PFA order against Mother. Id. The order provided, inter alia, that Mother would not return to the marital residence and that Brittany and Dayna would remain there in the primary custody of Father. Id. The order gave Mother partial custody on weekends. On October 30, 2003, Mother filed a complaint in divorce. On November 13,2003, Mother filed a complaint for custody of the two children. (Rl. at 7.)

On December 9, 2003, Mother filed a PFA petition against Father on behalf of Brittany. (Rl. at 7.) By consent of the parties, the final hearing date on Mother’s petition was continued from December 15, 2003 to January 7, 2004. Following an evidentiary hearing on the record on that date, this court dismissed Mother’s petition. The January 7,2004 order further directed the parties to obtain individual counseling for Brittany, as well as family counseling.

Mother procured the filing of criminal charges against Father in connection with the December 9, 2003 incident that formed the basis of Mother’s PFA petition. A no contact order barring Father from having contact with Brittany issued with the criminal complaint. (Rl. at 92-93.) While the criminal case was pending, Mother kept both children in her custody from December 9, 2003 to May 24,2004. (Rl. at 7-8.) With the exception of some time with Dayna at Christmas and Easter, Father did not have contact with the children during that period. (Rl. at 8.)

Following a custody conciliation in this court’s generations department, by order dated March 8, 2004, Father was directed to contact Barbara Madaus (a licensed therapist) for family counseling with the goal of re-unification with the children. On May 19, 2004, Father presented a “motion for special relief’ requesting that this court enter an order directing Mother to return Dayna to the marital residence and scheduling a contempt hearing to address Mother’s failure to comply with the provision of this court’s January 7,2004 order requiring family counseling. Father alleged that Mother would not allow Father and Dayna to meet with Dr. Madaus outside of Mother’s presence, and that Mother had failed to bring the children to some of the sessions.

On May 19,2004, this court entered an order directing Mother to return Dayna to the marital residence on May 24,2004. (R1. at 8.) The issue of Brittany’s return to the marital residence necessarily was deferred until after the June 29, 2004 trial date on the simple assault charges filed by Mother against Father in connection with the December 9,2003 incident. (R1. at 8,13.) On June 29, 2004, the Honorable Kathleen A. Durkin granted Father’s motion for habeas corpus, and dismissed the criminal charges.

On June 18, 2004, Father obtained a temporary PFA order against Mother (per the Honorable Kevin G. Sasinoski, J.). (Rl. at 8.) The parties were scheduled to appear at a final hearing before the undersigned on June 28, 2004. In the meantime, by order dated June 22, 2004, pursuant to an “emergency motion for special relief’ filed by Mother, this court provided that Mother could continue to have custody of Dayna on weekends and Tuesday evenings for dance class and that this exercise of custody would not be considered to violate the June 18,2004 temporary PFA order. The court also granted Mother make-up time for missing the weekend of June 18. The final hearing on the June 18,2004 PFA was continued three times. The final hearing on the PFA, as well as on Father’s complaint for indirect criminal contempt (filed on July 21, 2004), ultimately was conducted on September 15, 2004.

Following hearing on September 15,2004, this court dismissed the PFA and indirect criminal contempt petitions. The order further provided that, on an interim basis pending custody trial, the parties were to share legal and physical custody of both children on an equal 50/50 basis, with a week-on/week-off schedule. The Sunday noon exchanges were to take place at the Ross Township Police Station if the parties could not otherwise agree on a location. The parties were directed immediately to commence co-parenting counseling with Jeffrey Freedman Ph.D. The parties also were directed to continue or commence individual therapy and to ensure the continuation of therapy for both children. The parties were specifically directed not to use the police to mediate custody disputes.

On Father’s motion, a custody trial was scheduled for May 3,4 and 5, 2005. Following trial, on May 16, 2005, this court entered an order awarding primary physical custody of the children to Father. This court awarded shared legal custody to the parties. The custody schedule for the school year set forth in the order provides that Father is to have custody of Dayna from Sunday evening through Friday afternoon during the school year. Mother is to have custody of Dayna from after school on Friday until Sunday at 7 p.m. Father is to have custody of Brittany from Sunday evening through Thursday morning. Mother is to pick Brittany up from school on Thursday and drop her off (with Dayna) at Father’s on Sunday at 7 p.m. The custody schedule further provides that Father shall retain custody of the children on the first weekend of every month.

The custody schedule for the summer set forth in the order provides that, if either child is directed to attend summer school for low grades by the Pittsburgh public schools, the school year custody schedule shall remain in place. Mother is entitled to a two-week summer vacation with the children as long as it does not conflict with summer school. If neither child is directed to attend summer school, the order provides that the parties shall alternate custody in the summer on a week-on/ week-off basis starting each Sunday at 12 p.m. Each party is entitled to a two-week summer vacation with the children in that scenario.

Additionally, the order permits three phone calls per day from the noncustodial parent to the custodial parent’s home, for a maximum of 45 minutes total for all three calls. The order allows Father to discipline Brittany by removing her cell phone, and prohibits Mother from replacing the removed cell phone. The parents were prohibited from encouraging the children to defy the rules of the other parent. Each parent was ordered to keep the other parent informed of medical, religious, academic or disciplinary issues. The parents were ordered (again) to desist from involving the police in the custody matter. The order provides that Brittany is to continue to treat with her psychiatrist.

Further, the parents were ordered to prepare a joint written parenting plan, which was proposed by Mother. The parents were to agree on common rules to be applied to both children. A copy of the jointly-approved plan was to be submitted to this court by June 24,2005. If the parents could not agree on a parenting plan, either party could move to appoint a mediator. Upon Father’s motion, a mediator was appointed on July 11, 2005.

On June 9,2005, Mother filed both a petition to proceed in forma pauperis (IFP) in this court, and a notice of appeal to the Superior Court from this court’s May 16, 2005 custody orders. On June 22, 2005, this court denied Mother’s IFP petition. On July 21,2005, Mother filed a notice of appeal from the IFP denial. All proceedings on Mother’s appeal of the May 16, 2005 custody orders awaited the Superior Court’s disposition of Mother’s IFP appeal, which was docketed at 1281 WDA 2005. On September 14,2005, this court filed its opinion on the IFP appeal pursuant to Pa.R. A.P. 1925(a). On June 26, 2006, the Superior Court filed an opinion reversing this court’s IFP decision, and remanding for reconsideration. Amrhein v. Amrhein, 903 A.2d 17 (Pa. Super. 2006). Upon reconsideration, this court granted Mother’s IFP petition by order dated June 27, 2006.

The Superior Court’s June 26, 2006 opinion also directed this court to file its opinion(s) pertaining to the May 16,2005 custody orders within 30 days of receiving the transcripts from the May 3-5, 2005 trial. By order dated July 27, 2006, this court directed Mother to file a concise statement of matters complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Mother submitted her response to this court on August 15,2006. This court received the last of the May 3-5 trial transcripts on August 30, 2006.

ISSUES RAISED ON APPEAL

In her “response to July 27, 2006 order from Judge Wecht,” received on August 15, 2006, Mother asserts that this court erred in the following particulars:

“(1) Christina M. Amrhein, appellant, respectfully submits that the trial court erred in awarding primary physical custody of the parties’ minor children to Father, Michael J. Amrhein. Christina M. Amrhein’s custodial time has gone from the status quo of 50 percent to less than 20 percent of the average monthly time with Dayna Amrhein (parties’ youngest minor daughter), and 29 percent of the average monthly time with Brittany Hussar (parties’ oldest minor daughter).
“(2) Christina’s custodial time during the school year begins with oldest daughter, Brittany Hussar, on Thursdays, while Mother’s employer requires her to work until 8 p.m.
“(3) Christina’s custodial time during the school year separated the children.
“(4) Penalizing Mother, Christina M. Amrhein, and children with a drastic penalty of limited custody time for the entire summer (as opposed to the ‘week-on/ week-off’ custody rotation), if either child is directed to summer school.
“(5) Preventing Mother, Christina M. Amrhein, from enrolling either child in extracurricular activities without Father’s expressed approval.
“(6) Finding the ‘Mother improperly involved or encouraged or permitted’ police involvement in violation of the September 15, 2005 order.
“(7) Awarding a City of Pittsburgh police officer, Officer Daniel Stangrecki, a fee for testifying as an off-duty officer in disregard to the fact that he was subpoenaed.
“(8) Sanctioning Mother with loss of custodial time.
“(9) The imposition of attorney fees being awarded to Father, Michael J. Amrhein.”

SCOPE AND STANDARD OF REVIEW

Atrial court’s custody order is subject to “the broadest type” of review, and “the appellate court is not bound by the deductions or inferences made by the trial court ....”Liebner v. Simcox, 834 A.2d 606, 609 (Pa. Super. 2003), quoting MacDonald v. Quaqlia, 442 Pa. Super. 149, 154, 658 A.2d 1343, 1345 (1995).

“However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination. Thus, an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court’s factual findings; and thus, represent a gross abuse of discretion.” Id.

The appellate court will not make independent factual findings unless there is no competent evidence to support the trial court’s findings. Johnson v. Lewis, 870 A.2d 368, 372 (Pa. Super. 2005).

The best interest of the child standard requires that all factors be considered, and the trial judge must evaluate “whether the relationship between the disputing parties has an adverse effect on the child.” T.B. v. L.R.M., 874 A.2d 34, 38 (Pa. Super. 2005).

DISCUSSIONAND ANALYSIS

The first issue Mother raises in her Rule 1925 response relates to the reduction in custodial time with the children. With respect to this issue, this court concluded that the best interests of Brittany and Dayna are served by Father having primary physical custody.

This court became convinced from the evidence in this case that Brittany is incorrigible, ungovernable, and in crisis. This court refrained from ordering the filing of a dependency petition only because this court opted to implement the parenting plan suggested by Mother in her proposed order. That plan includes a number of provisions that may assist the parties and their children in moving forward in a more productive way, including counseling, consultation, and monitoring by a mediator.

This court considered continuing the week-on/week-off schedule mandated by this court’s interim order of September 14, 2004. However, a number of points militated against such an outcome. First, the expert testimony and report of the court-appointed psychological evaluator, Eric Bernstein Ph.D., compellingly showed that the best interests of the minor children are served by awarding primary custody to Father. (R3. at 90-92,98-99.) Second, with Mother’s acquiescence and in some cases encouragement, Brittany has grown more out of control as this case has progressed, rather than less. Brittany’s studies have suffered, her grades have plummeted, and her emotional state has deteriorated. (Rl. at 89-91, 93-94.) Interestingly, the records show that her grades have generally been better while in Father’s custody, and that Father and his paramour actively encourage and foster Brittany’s education, while Mother and her paramour have a lackadaisical attitude about this subject. (Rl. at 91-93, R6. at 167-68, R5. at 80-95.) The same goes for assistance with Dayna’s homework. (R5. at 80.) Fortunately, Dayna has not yet exhibited the problems manifested by Brittany.

Notwithstanding the court-appointed psychological expert’s recommendation, this court considered splitting the two minor children. This court considered this because Brittany has, again with Mother’s acquiescence, exhibited a tendency to attempt to alienate Dayna from Father. With respect to issue no. 3, while this court considered splitting the children, as well as considering the filing of a dependency petition as mentioned above, this court ultimately concluded that keeping the children together (and providing an additional overnight with Mother for Brittany), would be in their best interests. In doing so, the court was mindful not only of the relevant literature, but also of Pennsylvania law’s policy “to permit siblings to be raised together whenever possible.” Johns v. Cioci, 865 A.2d 931, 942 (Pa. Super. 2004) (citing Wiskoski v. Wiskoski, 427 Pa. Super. 531, 535, 629 A.2d 996, 998 (1993)); Pilon v. Pilon, 342 Pa. Super. 52, 55, 492 A.2d 59, 60 (1985).

This court concluded that the children are entitled to an opportunity to love both parents, and to benefit from the love of both parents. Unfortunately, because Mother has worked to alienate the children from Father, she has succeeded in making Brittany’s relationship with Father problematic, and has succeeded in creating a danger that the same problem may develop, at least to some degree, with Dayna. As the Superior Court has reminded, if “a parent who puts his or her own feelings before that of a child will denigrate or berate the other party to the child and make efforts to sabotage the other party’s relationship with the child. ... it is the function of the court to rein in the offending party.” T.B. v. L.R.M., 874, A.2d 34, 39 (Pa. Super. 2005). This court determined that, with the intervention ordered, Brittany can and will stand the best chance of achieving stability, and bringing her life under control, in the household maintained by Father and his paramour, Sherri Fritz.

Father and Ms. Fritz impressed the court as stable, rational, and devoted to the four children being raised in their custodial environment (Father’s two children and Ms. Fritz’ two children, Devin and Cassie, who were ages seven and five respectively at the time of trial). (Rl. at81,R5. at27.) Father and Ms. Fritz ensure that the children do their homework, go to bed at an appointed time, engage in appropriate activities, and prioritize their academic work. (Rl. at 87-89, R5. at 45-47.) Mother and her paramour do not. Indeed, while Father attempted to focus Brittany on doing adequately well in school, Mother worked at cross purposes. The records showed that Mother and her paramour know very little of the girls’ academic work, and have allowed a situation to arise where Brittany receives abysmal grades, is the subject of discipline in school, and shows no signs of progress. (Rl. at 89-91, 93-94, R6. at 160-63, 166-67, 182-83.) The evidence established that Mother exhibited a lackadaisical attitude to Brittany’s academic and social life. She did not know all of Brittany’s grades, she did not know all of Brittany’s classes, and she exhibited a tendency to take Brittany’s statements at face value. (R6. at 160-63, 166-67, 182-83.) Mother’s blasé attitude towards Brittany’s lackluster academic performance impairs Brittany’s future prospects of success. (R6. at 169-70, 204.)

At every turn in the history of this case, Brittany has been permitted to flout any attempt by Father to set forth rules or parameters for her conduct in the marital, and then in the Father’s, household. This has arisen and continued because Mother undercuts Father. Mother has arranged for Brittany to obtain and use a cell phone (apparently a gift from one or both of Mother’s parents), and has explicitly or implicitly encouraged Brittany to phone her at any hour on the cell phone upon receiving any direction or requests or communication from Father with which Brittany chooses to disagree. (Rl. at 83, R4. at 128-29, R6. at 110.) In so doing, Mother has continuously sent the message that Brittany can and should demonstrate the maximum of defiance possible to Father at all times. The cell phone procured for Brittany appeared to this court to be an additional favor-currying device, an additional symptom of Mother’s election to buy the children’s favor when and where possible at the expense of the children’s relationship with their father.

Custody exchanges preceding the May 2005 trial have included videotape recording of Father by Mother’s paramour, advance self-help equitable distribution by Mother in the form of obtaining Father’s personalty from Brittany in bags Brittany brings to and from Father’s custodial periods, and tantrums by Brittany at police stations in which Mother acquiesces in Brittany refusing to go with Father for his custody period. (R6. at 68-69, R2. at 29-30, Rl. at 36-38, R2. at 70-72, R4. at 37-39.) On more than one occasion, Brittany has placed conditions on Father’s exercise of his custody rights, and Mother has allowed this placement of conditions to happen. In short, Brittany has become out of control, with Mother’s consent.

This court found that Brittany had become, in effect, the master of the game. She had learned to play Mother and Father off of one another, and to maximize the parties’ acrimony. She had learned how to intimidate Father psychologically, and force him and his paramour, in effect, to walk on eggshells in their own home. She had learned that, by threatening to place conditions on Father’s custody unilaterally or threatening that she would depart forthwith for Mother’s residence, she could control the pace of events. (Rl. at 79-80,114-16, R2. at 30-31.) She had learned that she could use her influence as Dayna’s big sister to begin a process by which Dayna might ultimately end up in the same troubled and alienated position as Brittany. (Rl. at 71-73, R2. at 133-34, R3. at 119.)

This court has attempted to put a stop to this process. This court has ordered intervention and counseling, and has, most of all, made clear that the parents, and not the children, will control the custodial environment. Because Father provides the more stable custodial environment, and better serves the children’s interests, he is the primary custodian.

Brittany’s behavior included obvious anger demonstrated in court. On the witness stand, there were at least two instances in which Brittany’s anger was palpable and during which this court noted that she was barely restraining herself from an emotional outburst. This court found that Brittany was, in some sense, the key to this custody case.

Although troubled, Brittany is able to differentiate between right and wrong, and is able to correct her actions when she learns it is in her interest to do so. This was made clear by the uncontroverted testimony that Brittany had behaved very well in the time period during trial. (R4. at 123-24, R5. at 22.) This court concluded that, knowing she would be in Father’s primary custody, Brittany would eventually, with professional help, reconcile herself to a stable and loving environment in which her best interests in advancing herself emotionally and academically could be maximized.

No doubt mindful of the history of this case in motions and PFA court, Brittany testified at the May 2005 trial that Mother had in fact set limits on Brittany’s behavior. (R2. at 9-10, 11, 14.) This court expressly declined to credit this testimony. Brittany’s offer of this testimony struck this court as contrived, and the testimony seemed to be recent in its creation and controlled in its delivery.

At various points in the case, and most particularly in the PFA matter that was the subject of an earlier opinion issued by this court, Brittany has accused Father of abusing or threatening her. (R2. at 36,45,47, 66.) This court has found these allegations, now and in the past, to lack credibility. In his testimony, Dr. Bernstein testified that Brittany would show fear if she had been the subject of any abuse. (R3. at 116.) Dr. Bernstein testified that Brittany in fact shows no fear of Father. Id. Dr. Bernstein further testified that Brittany had told him that Father is afraid of Brittany. (R3. at 116-17.) Assessing the testimony in court of Brittany, Father, and others, this court was constrained to agree. This court found that Brittany had succeeded in intimidating Father. In short, Brittany is in charge. By its order, including the parenting plan attached to that order, this court hopes to have brought this pathological situation to an end.

Examples abound of Mother’s assisting Brittany in flouting the court order and in undermining the children’s relationship with Father at every turn. In one instance, Mother told Father in front of the parties’ counselor that she would always believe Brittany over Father. (Rl. at 134-35, R4. at 141.) In another, Mother and her paramour testified that Mother’s paramour assists Brittany with her homework. (R5. at 80-92.) However, Mother’s paramour lacked any credibility whatsoever on this point. He could not specify what homework Brittany did, could not identify the subjects on which she works, could not identify the classes in which she is enrolled, and could not substantiate in any way the nature of any homework that Brittany allegedly does in the household maintained by Mother and Mother’s paramour. (R5. at 82-92.) By contrast, Father and his paramour testified to an environment in which they foster the children’s studies. (Rl. at 120-21, R4. at 45-47).

In early March 2005, Mother unilaterally took custody of the children and maintained that custody in the face of this court’s week-on/week-off interim order through mid-April, just before the trial of this case. (R2. at 149-50,156.) In April 2005, Mother also incorrectly informed Perry Traditional Academy (Brittany’s high school) that Brittany had a dental appointment, in order to obtain an excused absence so that Brittany could attend the Pittsburgh Pirates’ home opener. (R6. at 164-66.) This not only demonstrated dishonesty, but also a willingness once again to sacrifice the children’s academic needs to recreation or entertainment. This Pirates’ opener incident was also an example of Mother’s practice of rewarding the children for noncompliance with the custody order or Father’s directives. The day before the Pirates’ opener, Brittany refused to go with Father for Father’s appointed custody. (R2. at 162-63.) The very next day, Mother “treated” Brittany to the Pirates’ opener. The deceit involved is further manifested by the fact that the tickets apparently had to have been purchased at a prior time. (R2. at 163.)

Further, Mother has discussed the issue of child support payments with the children. (R6. at 56-57.) In 2005, in Mother’s presence, Brittany called Father a “deadbeat.” (R4. at 158, R6. at 56-57.) Not only did Mother not intervene or instruct Brittany to refrain from such language (R6. at 57), but, in addition, it was clear to this court that the terminology “deadbeat” does not naturally arise from the lexicon of 14- or 15-year-old children, at least not this particular 14- or 15-year-old. Moreover, with Mother’s acquiescence, Brittany at age 14 or 15 had a boyfriend of over 18 years in age, who would show up at the marital residence. (Rl. at 131-33.)

The evidence also included testimony that a bent spoon and a knife were found under Brittany’s bed. (Rl. at 133.) Brittany could offer no credible explanation. (R2. at 58,105-106.) Mother seemed to have no concern about this find. (R6. at 109.) Indeed, another example of Mother’s unrealistic faith in Brittany’s trustworthiness and virtuousness is Mother’s insistence that Father lied about the spoon and knife under Brittany’s bed, notwithstanding the fact that Brittany admitted to these items being found there. (Rl. at 134, R6. at 206-208.) When asked whether she would be concerned about the fact that these utensils were found under Brittany’s mattress, Mother offered a “yes and no ....” response. (R6. at 208.)

In addition to making false and unnecessary reports and calls to the police, Mother, and/or Brittany with Mother’s acquiescence, has made or instigated false and unnecessary reports to the Office of Children, Youth and Families (CYF). CYF determined the complaints of abuse or neglect made by Mother or Brittany against Father to be unfounded. (R3. at 134-35, 153.)

On March 6 and 7,2005, Brittany contrived an objection to Father’s desire to check the bag she was bringing to or from Father’s house. (R2. at 24-27, R4. at 8-14.) Brittany’s real objection was not concerning the bag issue, but rather was to Father’s custody. Ultimately, Brittany succeeded in thwarting Father’s exercise of his custody rights. (Rl. at 42-43.)

This court concluded from wide-ranging and extensive testimonial and documentary evidence, and from palpable witness demeanor and conduct, that Mother hates Father, that this hatred is knife-cut thick, and that this hatred has been passed on diligently and seamlessly to Brittany. This court has strived in its order and in the plan attached thereto, to remedy, at least in some measure, the breach between Father and Brittany, and, not least, to protect Dayna’s interest in a good and healthy relationship with both parents.

Mother’s credibility at trial was further undermined by her testimony that she was not sure that she sent email messages encouraging Brittany’s defiance. (R6. at 147, 150.) However, at the January 7, 2004 PFA hearing, the following e-mail, sent October 31, 2003, was introduced into evidence.

“Good morning Britt:
“Well tonite was fun!!! NOT!!! Just remember keep you and your sister safe. Chris across the street said that if you ever need help, her door is always open and don’t hesitate. She knows what is going on. Your dad ? them last week. HA HA!!! Britt I’m proud of you tonite. Pap is proud of you too. You handled yourself better than ever. They r probably saying right now that you r just like ur Mother. Well be proud!!!! At least your pretty and skinny and they r ugly and fat.... Also Britt, don’t be jealous of what your dad is doing for Dayna. He’s doing to her what he did to you. Dayna is your sister and blood is thicker than water. It is going to suck, but suck it up and eat some s***t. I prefer it on a bagel, how bout u? Just watch out for her. Also Britt watch what u do and say. Let him pick the fight not you. Cuz it will just bite you in the end. I can tell ur a Hussar u know how to say f**k. . . .
“Love,
“MOM .. ..” Amrhein v. Amrhein, no. FD 03-1763-003, at 7 (C.C.P. Feb. 17, 2004).

Additionally, an October 28 e-mail was also admitted which read:

“Hey Britt,
“How r u? Hey you and Dayna didn’t call and say good-nite? What’s up with that? ... I can’t explainin [SIC] how much I want you and Dayna to be with me. This s***t sucks. . . . You and Dayna might not see much of me this week, but believe me right now I am fighting strong. I got my battle clothes on and I am ready to go. . .. Britt things are really going to start to move now, the lines were crossed. I just hope and pray that you and Dayna want that too...
“MOM.” Id. at 8.

There appeared to this court to be a boundary issue in which Mother and paramour to some extent acted as a brother and sister to Brittany more than as a mother and potential stepfather. (R2. at 17, R3. at 18.) Mother showed this court in each and every regard that she is willfully blind to Brittany’s failings, and that she has failed to establish a modicum of parental guidance.

Mother exhibited no demonstrable concern about Brittany’s rolling out of a website labeling herself “skank ho,” and containing vulgar, if oblique, references to virginity and fellatio. (R2. at 20, R6. at 178-79). According to testimony, the website stated, “I don’t know how to make cherries pop, but I know how to make bananas cream.” (Rl. at 95.) Mother could not identify any real mistakes by Brittany, and was unwilling to fault Brittany in any regard. The court found Mother to be an equivocal and cagey witness. Mother could not identify any errors in judgment shown by Brittany, and finally conceded, only with great reluctance, that the “skank ho” website was perhaps not a terrific idea. (R6. at 183-91.) Mother protested that the website had been “misconstrued.” (R6. at 107-108, 189.) As to whether she was concerned about the “skank ho” website and about a provocative photo allegedly contained on that website, Mother testified as follows: “yes and no. . . .” (R6. at 108, 179, 190). This court found Mother’s attitude to be unrealistic and troubling. Indeed, the fact that, in response to counsel’s questions at trial, Mother testified repeatedly: “yes and no . ...” was (in this court’s opinion) another example of Mother’s impaired credibility. (R6. at 108, 125, 127, 152, 154, 179, 190, 208.)

Mother also began the answer to several questions with “in all honesty . ...” or “honestly . . . .” (R6. at 107, 148, 149, 150, 153, 156, 159, 160, 161, 185, 186, 191,203,226.) Taking both the testimony itself and the witness’ demeanor into account, as well as the entire record, this court concluded that this preface to several of Mother’s answers indicated that Mother doth protest her honesty too much. In stating that she was answering a question “frankly” or “honestly,” this court was constrained to conclude that Mother was less than frank and honest in several instances.

This court concluded that Mother, far from reinforcing the other parent, has actively undermined Father. Mother has groomed Brittany into an ally in a perceived war against Father. The court has attempted to stop the war, to take Brittany and Dayna out of the middle, and to implement a predictable and stable custodial regime.

With respect to Mother’s complaint on appeal (issue no. two) that her custody time with Brittany begins on Thursday afternoons, a day when Mother “is required by her employer to work until 8 p.m.”, this court emphasizes that Mother testified to her employer’s remarkable flexibility in accommodating Mother and Mother’s custody schedule. For example, Mother testified that her employer allows her to leave work in the middle of the afternoon to collect one or both children, and then return to work without penalty. (R6. at 91.) Mother emphasized that her employer has been extremely understanding of her in connection with scheduling matters. (R6. at 91-92.) This court specifically provided that Mother would get custody on Thursday afternoon, an additional day, so that Mother could have that supplemental time to allow Brittany to maintain the bond with Mother, and to recognize Brittany’s closeness with Mother. The court could have provided that Brittany would go to Mother’s custody on Fridays like Dayna, but instead the court allowed Mother an additional full day (with an additional overnight) with Brittany. Mother now appears to complain that this additional custody was unwanted. Mother cannot have it both ways.

With respect to issue no. four in Mother’s points on appeal, which challenges this court’s provision reducing Mother’s custody in the event that either child is directed to attend summer school, this court emphasizes its deep concern about the children’s academic success, with concomitant prospects for success in life. As discussed above in detail, Mother has exhibited a profoundly lackadaisical attitude, and essentially a lack of concern, about the children’s academic progress. (R6. at 167-68.) On Mother’s watch, Brittany has obtained abysmal grades, and neither Mother nor Brittany appear concerned about this. (R2. at 10.) If, as a result of this performance, Brittany must attend summer school, she will be in Father’s custody so that she can focus on the important task of improving her performance so that she has some chance to advance herself in life.

With respect to issue no. five of Mother’s points on appeal, which prevents Mother from continuing her demonstrable practice of enrolling Brittany in activities without Father’s input, this court specifically notes that Mother insisted on circumventing Father’s input by encouraging Brittany to enroll in the softball program in which Mother’s paramour coaches despite Father’s attempt to condition this continued involvement on some effort by Brittany to do her school work. (R5. at 76, R6. at 198-200.) Further, Mother encouraged Brittany to continue to participate on the cheerleading squad despite Brittany’s failure to attend to her school work in any degree. (Rl. at 109-11.) This court concluded that both parents should ensure that academic work takes first priority, particularly in view of the track record. Because Mother failed to allow Father to be involved, and misplaced priorities wantonly, this court concluded that it was essential that Father be able to ensure that non-school activities go forward only when academic activities are being given appropriate priority.

With respect to issue no. six of Mother’s points on appeal, the court has addressed Mother’s involvement, or encouragement or permission of Brittany’s involvement, of the police in this matter. The trial record demonstrated that Brittany, with Mother’s acquiescence, had continually sought to enmesh the police departments of the City of Pittsburgh and the Township of Ross in this custody dispute. (Rl. at 48, 51, 126, R2. at 26, 33, 70.) The court specifically found that this frequent and improper resort to police intervention had placed an unjustifiable burden on valuable public safety resources. The police have important work to do in our communities, and should not be dragged willynilly into custody disputes. This court concluded on the record set before it that Mother and Brittany had arrogated to themselves the right to commandeer police officers to help them in their ongoing crusade against Father’s attempt to exercise the. custody rights provided to him by this court’s orders.

With respect to issue no. seven in Mother’s points on appeal, this court ordered Mother to pay Daniel Stangrecki, a veteran officer employed by the City of Pittsburgh Police Department, $200 as a fee. This court could well have awarded Officer Stangrecki more than the $200. Indeed, Officer Stangrecki asked for $300. (R4. at 19-22.) This court concluded that Officer Stangrecki would not be entitled to an expert witness fee, inasmuch as Mother subpoenaed him as a fact witness, not as an expert. (R4. at 24.) However, this court awarded $200 to Officer Stangrecki because Mother had chosen to involve him improperly in the parties’ custody disputes, had caused her counsel to summon him to court needlessly, and (in view of the fact that he was off-duty) had caused him to miss opportunities to either work gainfully or rest from his labors. Under the circumstances, $200 was a minor sanction relative to the activity undertaken and the inconvenience caused.

CONCLUSION

For the foregoing reasons, this court’s order of May 16, 2005 should be affirmed.

WECHT, J., September 21, 2006—Plaintiff Christina M. Amrhein (Mother) appeals from this court’s May 16,2005 order granting in part and denying in part the motion for sanctions filed by defendant Michael J. Amrhein (Father).

As discussed in the accompanying opinion separately filed at 1023 WDA2005 (consolidated herewith), this court entered an order on May 16, 2005 awarding primary custody of the parties’ two minor children to Father, and specifying a number of other provisions concerning the terms of custody. By prior order, the issue of sanctions and contempt had been preserved and consolidated for consideration at the May 2005 trial.

The evidence developed on the trial record showed beyond peradventure that Mother was in contempt of this court’s September 15, 2004 order. That order had provided, inter alia, that, on an interim basis, the parties would share legal and physical custody on a 50/50 basis, with physical custody rotating weekly. The evidence at trial further showed that Mother unilaterally had taken custody of the parties’ two children on more than one occasion between September 15,2004 and the trial of this case in May 2005. Most particularly, Mother unilaterally had taken custody of the children for several weeks in March and April of 2005.

As part of his motion for sanctions and contempt, Father requested that Mother “pay back” Father each and every day and week of the custody that Mother had taken from Father during this period. This court denied Father’s request, but did grant two weeks additional custody time with the children. This court also required Father to give Mother two weeks advance notice of his selected dates. Further, this court did not award the (a) $650 in counsel fees plus (b) additional counsel fees for time spent on the motion plus (c) monetary sanctions requested by Father (R4. at 151, R6. at 243-44), but instead scaled Father’s request back to $750 total, and ordered Mother to pay this within 30 days.

Measured against the record of defiance and misbehavior in this case (as discussed more fully in the accompanying custody opinion at no. 1023 WDA 2005), the award of two weeks custody time and $750 as a sanction for Mother’s contempt of this court’s order (including her unilateral appropriation of custody in violation of this court’s September 15,2004 order) was a mild remedy overall.

In granting in part and denying in part Father’s motion for sanctions, and in concluding that Mother was in contempt of this court’s September 15, 2004 order, this court expressly determined that Mother was in willful violation of that order. As our Superior Court has instructed, trial courts possess inherent authority to enforce their orders. Goodman v. Goodman, 383 Pa. Super. 374, 394, 556 A.2d 1379, 1389 (1989). Moreover, in addition to this inherent authority, trial courts possess contempt power to address violation of custody orders pursuant to express statutory authorization. See 23 Pa.C.S. §1346; Pa.R.C.P. 1915.12. It is beyond peradventure that counsel fees may be awarded in connection with contempt proceedings, whether as special damages, or pursuant to the judicial code for “obdurate, vexatious or dilatory conduct.”

The contempt aspect of the court’s order was coercive in nature, and sought to encourage Mother to comply with this court’s custody order, now and in the future. The sanction aspect of this court’s order pursuant to the Judicial Code is to convey, in the most direct way possible, that this court disapproves Mother’s unilateral decision to take custody of the children on the eve of trial, and that this court believes that Father should not single-handedly bear the costs of paying counsel fees needed to remedy the situation Mother created.

CONCLUSION

For the foregoing reasons, this court’s order of May 16, 2005 should be affirmed.

      . As indicated infra, text at 2 and 4, final PFA orders were not entered on Father’s behalf.

      . Mother’s divorce complaint was filed at FD no. 03-1286-003. Mother’s PFA petition filed on December 9, 2003 was filed at FD no. 03-1763-003. Although this court entered an order on March 4, 2004 that all future documents should be filed at FD no. 03-1763-003, it appears from a review of both electronic dockets that documents continued to be filed at both FD numbers.

      . Mother appealed this court’s order dismissing her PFA petition. This court’s February 17, 2004 opinion filed pursuant to Pa.R.A.P. 1925(a), which contains a detailed background on the PFA petitions filed up to that date as well as the circumstances surrounding the December 9, 2003 petition, is available at Amrhein v. Amrhein, no. FD 03-1763-003, (C.C.P. Feb. 17, 2004), 152 Pitt. L.J. 245 (Oct. 15, 2004), available at http://www.alleghenycourts.us/opinions/family_adult/ (Wecht)%20Amrhein%20v%20Amrhein.pdf. Mother subsequently withdrew her PFA appeal, which was docketed at 50 WDA 2004.

      . This explains the temporary “separation of the siblings” noted by the Superior Court at paragraph 4 of its June 26, 2006 opinion concerning Mother’s in forma pauperis status. Amrhein v. Amrhein, 903 A.2d 17, 18 (Pa. Super. 2006).

      . On June 1, 2004, the court ordered psychological evaluations.

      . At trial, Mother was represented by Daniel P. Buzard, Esquire. By motion granted, Mr. Buzard withdrew as counsel on October 14, 2005.

      . This court also issued an order on May 16,2005 granting in part and denying in part Father’s motion for sanctions. That order is the subj ect of a separate, but consolidated, appeal (docketed at 1024 WDA 2005) and is addressed in an accompanying opinion.

      . The transcripts of the May 3-5 trial were prepared by six different court reporters. The May 5 afternoon session transcript was filed on August 1,2006 and is cited as R6. The May 3 morning and afternoon sessions transcripts were filed on August 11,2006 and are cited as R1. and R2., respectively. The May 5 morning session transcript was filed on August 23, 2006, and received by this court on August 28, 2006, and is cited as R5. The May 4, 2005 afternoon session transcript was filed on August 25, 2006, received by this court on August 29, 2006, and is cited as R4. The May 4, 2005 morning session transcript was filed and received by this court on August 30, 2006 and is cited as R3.

      . The issues raised on appeal in points 8 and 9 relate to the May 16, 2005 order regarding Father’s motion for sanctions, and accordingly are addressed in the accompanying opinion at 1024 WDA 2005, rather than herein.

      . See e.g., Joel V. Williams, Comment, Sibling Rights to Visitation: A Relationship Too Valuable To Be Denied, 27 U. Tol. L. Rev. 259, 260 (1996) (“Aside from the parent-child relationship, the sibling relationship is the most important relationship in a child’s development”); William Wessley Patton and Dr. Sara Latz, Severing Hansel from Gretel: An Analysis of Siblings’ Association Rights, 48 U. Miami L. Rev. 745,760 (1994) (“studies offer incontrovertible evidence of [sibling] bonds’ developmental importance....”).

      . Amrhein v. Amrhein, no. FD 03-1763-003, (C.C.P. Feb. 17,2004), 152 Pitt. L.J. 245 (Oct. 15, 2004), available at http://www. alleghenycourts.us/opinions/family_adult/(Wecht)% 20Amrhein % 20v%20 Amrhein.pdf.

      . Available at 152 Pitt. L. J. 245 and at http://www.alleghenycourts. us/opinions/family_adult/(Wecht)%20Amrhein%20v%20Amrhein. pdf.

      . Brocker v. Brocker, 429 Pa. 513, 241 A.2d 336 (1968), cert. denied, 393 U.S. 1081, 89 S.Ct. 857, 21 L.Ed.2d 773 (1969).

      . 42 Pa.C.S. §2503(7); Bonds v. Bonds, 455 Pa. Super. 610, 689 A.2d 275 (1997); M.C. v. R.W., 398 Pa. Super. 183, 580 A.2d 1124 (1990).


author: GOLDBERG, J.,

text:
    Commonwealth v. Kane

      Anthony Cappuccio, district attorney, for Commonwealth.

      Geoffrey Seay, for defendant.
    October 29, 2008
   GOLDBERG, J.,

This case stems from incidents occurring in late 2005, and early 2006, wherein Michael Kane II (appellant) sexually molested his 4-year-old daughter (A.N.). Appellant’s allegations of error mostly involve claims of ineffective assistance of counsel.

We file this opinion pursuant to Pennsylvania Rule of Appellate Procedure § 1925(a).

FACTS AND PROCEDURAL HISTORY

On November 29,2006, a jury found appellant guilty of two counts of aggravated indecent assault of a child less than 13 years of age, two counts of indecent assault of a person less than 13 years of age, endangering the welfare of children, and corruption of minors. The evidence presented at trial established the following:

In March of 2006, the victim, A.N., approached her mother, Marissa Nypower, and reported that appellant had touched her vagina while she was visiting his house. Nypower contacted appellant to inform him of A.N.’s accusations, and also contacted A.N.’s pediatrician who referred her to the Bucks County Children and Youth Social Services. As mandated by law, Children and Youth then reported the abuse to the police. (N.T. 11/28/06, pp. 85, 151-57, 176-82.)

On April 21,2006, appellant was interviewed by Bensalem Township detectives. He acknowledged that he was aware of A.N.’s allegations, but initially denied having made inappropriate contact with her. Appellant did state that he believed his daughter had been touched and was looking for a solution. When the detectives told appellant that they believed he was being untruthful, he acknowledged that starting when A.N. was young, he felt uncomfortable changing her diapers and experienced physical sexual arousal when doing so. (N.T. 11/27/06, pp. 174, 180, 183-84.)

Appellant became upset as the interview progressed and asked for a break. Upon returning from the break, appellant stated that he needed help. Appellant again acknowledged that he got aroused while bathing his daughter, and then admitted to touching her inappropriately. In particular, appellant stated:

“Q. How many times was it with her pants on?
“A. One or two times I got aroused with her pants on.
“Q. With them off?
“A. One or two times, probably more than two, but no more than four....
“Q. Was your hand on her vagina?
“A. Right.”

Appellant ended the interview by asking if he could return to the police station the following week to write out a statement, however, he never returned. (N.T. 11/27/06, pp. 177-98, 200-203; N.T. 11/28/06, pp. 111-20.)

Nicole Publick of Children and Youth interviewed appellant on May 2,2006. Appellant initially denied any wrongdoing, however, after he was confronted with information from the police interview where he admitted touching A.N., appellant acknowledged that he experienced sexual arousal while touching his daughter. (N.T. 11/28/06, pp. 93-101.)

Upon receiving the report of abuse, Children and Youth set up an interview of A.N. Detective Cannon and Nicole Publick, of Children and Youth, watched the interview in an observation room with a two-way mirror and intercom system. A.N. indicated that she was touched by appellant on at least two instances, once on the outside of her clothes and once underneath her clothing. She stated that it hurt when her father touched her, and on one occasion, he inserted two fingers into her vagina. A.N. also stated that each time her father touched her, he told her not to tell anyone. (N.T. 11/27/06, pp. 139, 170; N.T. 11/28/06, pp. 87-89, 92.)

At trial, A.N. testified that appellant touched her pee pee with his fingers. A.N. explained that her pee pee was in the front of her body, and it hurt after he touched her. A.N. stated that the touching occurred when she was in appellant’s bed at his house. (N.T. 11/27/06, pp. 139-42.)

Based on this evidence, the juiy found appellant guilty of aggravated indecent assault, indecent assault, endangering the welfare of children, and corruption of a minor. (N.T. 11/29/06, pp. 115-16.)

Thereafter, on December 12, 2006, Geoffrey Seay, Esquire, appellant’s trial counsel, filed a motion to withdraw, which was granted on May 24,2007. On June 26, 2007, appellant was sentenced to three-and-a-half to 10 years incarceration.

Appellant subsequently filed post-sentence motions alleging, inter alia, ineffective assistance of trial counsel. A hearing on these motions was held on October 12, 2007. After these motions were denied, appellant filed a timely notice of appeal. The issues appellant has raised on appeal are set forth verbatim below:

“(1) The trial court erred in failing to conduct a judicial inquiry into the competency of the child witness.
“(2) Trial counsel was ineffective for failing to challenge the competency of the 4-year-old complainant.
“(3) Trial counsel was ineffective for failing to object to testimony by Detective Jennifer Cannon and Nicole Public[k] regarding the complaining witness[s] prior statements.
“(4) Trial counsel was ineffective for failing to object to Detective Ani[n]smans comment on defendant’s exercise of his right to remain silent.
“(5) Trial counsel was ineffective failing to object to the testimony of Detective Ani[n]sman that defendant incriminated himself a number of times in his statements to police as this is the ultimate question of fact for determination by the jury.
“(6) Trial counsel was ineffective for failing to subpoena the Children and Youth file regarding the complainant.
“(7) Trial counsel was ineffective for failing to call witnesses whose testimony rebutted the complainant’s testimony on key points. Specifically, trial counsel was ineffective for failing to call Brian Kane and the defendant’s father, Michael Kane.
“(8) Trial counsel was ineffective for failing to object to the trial court’s charge regarding corruption of the morals of a minor.” (Statement of matters complained of on appeal.)

LEGAL ANALYSIS

The Trial Court Did Not Fail To Conduct a Judicial Inquiry Into the Competency of the Child Witness

In reviewing a challenge of an evidentiary nature such as competency of a witness to testify, a witness is presumed competent unless proven otherwise. In the interest of J.R., 436 Pa. Super. 416, 421, 648 A.2d 28, 31 (1994). The trial court must assess the child witness’ competency through an inquiry into her mental capacity if she is under 14 years of age. Commonwealth v. McMaster, 446 Pa. Super. 261, 267, 666 A.2d 724, 727 (1995). Yet, the burden of showing the incompetence of a child witness rests on the objecting party. In the interest of J.R., 436 Pa. Super. at 421, 648 A.2d at 31.

A child’s competency to testify is measured by her understanding of the duty to tell the truth, the ability to perceive and remember events, and the ability to truthfully communicate those events. Commonwealth v. Dowling, 584 Pa. 396, 406, 883 A.2d 570, 576 (2005). The court need not specifically address each of these questions with the child through questioning, but may instead base its finding of competency on the demeanor, thoughtfulness, sincerity, and responsiveness of the child witness. Id. at 407, 883 A.2d at 577. The Dowling court found that even though there were no specific questions addressed to the child regarding her competency, the child was still competent because there was no evidence of an inability to perceive and truthfully communicate events. Id. Evidence that the child witness knows she may be in trouble if she tells a lie is sufficient to establish her understanding of and duty to tell the truth. Commonwealth v. Short, 278 Pa. Super. 581, 588, 420 A.2d 694, 697 (1980).

Here, A.N. was 5 years old at the time of trial, testifying to events that occurred when she was 4 years old. Testimony was elicited from A.N. on her ability to distinguish a lie from the truth, as set forth below:

“Q. [A.N.], when this gentleman, this man here asked you do you promise to tell the truth, do you think that’s very important that when you’re in this room and you promised this judge that you’re going to tell the truth, you understand that’s very important, right?
“A. Uh-huh.
“Q. If I told you I was wearing a bright red suit like Santa Clause, is that a truth or a lie?
“A. A lie.
“Q. If I told you—what’s your favorite color?
“A. Pink.
“Q. If I told you these walls here were painted pink, is that the truth or a lie?
“A. A lie.
“Q. [sic] I’m going to ask you about something you did for fun recently. Did you go trick or treating for Halloween?
“A. Yeah.
“Q. Can you tell me what did you dress up as for Halloween when you went trick or treating?
“A. A bride.
“Q. What color was your outfit?
“A. White.
“Q. White? At this time I offer [sic] [A.N.] as a competent witness to testify at trial.
“The Court: I don’t think there’s any
“Trial counsel: No, sir.” (N.T. 11/27/06, pp. 136-38.)

Given this colloquy, appellant has not met his burden of establishing incompetence because he has failed to point to any evidence on the record demonstrating A.N. ’s incompetence. The court did not err in failing to conduct a second, duplicative judicial inquiry into A.N.’s competence to testify, because evidence of her competency was already established and on the record.

Appellant’s Ineffective Assistance of Counsel Claims Have No Merit

When analyzing claims of ineffective assistance of counsel, we begin with the presumption that counsel was effective. Commonwealth v. Pappas, 845 A.2d 829, 844 (Pa. Super. 2004); see also, Commonwealth v. Miller, 572 Pa. 623, 646, 819 A.2d 504, 517 (2002); Commonwealth v. Weaver, 363 Pa. Super. 194, 196, 525 A.2d 785, 786 (1987). Judicial scrutiny of counsel’s performance must be highly deferential. Strickland v. Washington, 466 U.S. 668, 689 (1984). Appellant bears the burden of proof in showing that counsel’s performance was so deficient such that counsel was not functioning as counsel under the Sixth Amendment, which precluded appellant from receiving a fair trial. Weaver, 363 Pa. Super. at 197, 525 A.2d at 786; see generally, Strickland, 466 U.S. at 687-88.

Appellant can only establish ineffective assistance of counsel when he demonstrates that: (1) the underlying claim is of arguable merit; (2) that counsel’s action or inaction was not grounded on any reasonable basis designed to effectuate appellant’s interest; and (3) that counsel’s action or inaction was prejudicial to appellant. Miller, 572 Pa. at 645-46, 819 A.2d at 517. For an action or inaction by counsel to be considered prejudicial, there must be reasonable probability that the outcome of the proceedings would have been different but for counsel’s alleged error. Commonwealth v. Cox, 581 Pa. 107, 125, 863 A.2d 536, 546 (2004); Commonwealth v. Johnson, 572 Pa. 283, 302, 815 A.2d 563, 573-74 (2002). All three prongs of the above test must be satisfied. If an appellant fails to meet even one prong of the test, his conviction will not be reversed on the basis of ineffective assistance of counsel. Pappas, 845 A.2d at 844.

Trial Counsel Was Not Ineffective for Failing To Challenge the Competency of the 4-Year-Old Complainant

The colloquy set forth infra clearly demonstrates that A.N. was fully competent to testify. At the post-sentence motion hearing, trial counsel explained that he had the opportunity to observe A.N. at the preliminary hearing in this case, and assessed her to be a competent witness. (N.T. 11/27/06, pp. 136-38; N.T. 10/12/07, pp. 67-68, 87.)

The assertion that trial counsel was ineffective is without merit, because the record demonstrates that there was no reasonable ground upon which he could have raised an objection on competency.

Trial Counsel Was Not Ineffective for Failing To Object to Testimony by Detective Jennifer Cannon and Nicole Publick Regarding A.N. s Prior Statements

Trial counsel was not ineffective for failing to object to testimony by Detective Jennifer Cannon and Nicole Publick regarding A.N. ’s prior statements, because these statements were admissible under Rule 613(c) of the Pennsylvania Rules of Evidence, which states:

“Evidence of a prior consistent statement by a witness is admissible for rehabilitation purposes if the opposing party is given an opportunity to cross-examine the witness about the statement, and the statement is offered to rebut an express or implied charge of: (1) fabrication, bias, improper influence or motive, or faulty memory and the statement was made before that which has been charged existed or arose; or (2) having made a prior inconsistent statement, which the witness has denied or explained, and the consistent statements supports the witness[s] denial or explanation.” Pa.R.E. 613(c).

On cross-examination, A.N. repeatedly admitted that she could not remember certain details. Trial counsel elicited these admissions of faulty memory, and thus, as expressly provided in the above rule, prior consistent statements as relayed by Cannon and Publick were permitted to rebut the allegation of faulty memory. (N.T. 11/27/06, pp. 136-45.)

The prosecution may also introduce the complainant’s prior statements as evidence of a fresh complaint. See Commonwealth v. Dillon, 863 A.2d 597,602 (Pa. Super. 2004); Commonwealthv. ODrain, 829A.2d316,321-22 (Pa. Super. 2003). As A.N.’s prior statements were made close in time to when the abuse occurred, they fall within the fresh complaint exception to the hearsay rule. (N.T. 11/27/06, p. 168.) Thus, pursuant to this rule and Pa.R.E. 613, trial counsel was not ineffective for failing to object to the introduction of A.N.’s prior consistent statements.

Given all of the above, Cannon and Publick’s recitations of A.N.’s out-of-court statements were properly admitted. Thus, trial counsel’s inaction in not objecting to the admission of the statements is not ineffective assistance of counsel, because there was no reasonable ground upon which trial counsel could have based an objection.

Trial Counsel Was Not Ineffective for Failing To Object to Detective Aninsman’s Comment on Appellant’s Exercise of His Right To Remain Silent

Appellant next argues that trial counsel was ineffective for failing to object to Detective Aninsman’s alleged comment on appellant’s right to remain silent. This argument is also meritless and misrepresents the record. In support of this argument, appellant cited Detective Aninsman’s redirect trial testimony as follows: allow them to take the statement, if we can type it, and they come back for them to review it, make any corrections, and there’s portions of interviews where I have made grammatical errors for them so I know they’ve actually read the statements. They’ll change it and initial it. I might spell a word wrong on a question that I ask. This way I know and can testify that they’ve read it, they’ve understood it, and they’ve signed it. That’s for typewritten statements. Normally people will write out their own statements in their own words and sign it.” (Memorandum in support of post-sentence motions, pp. 11-12, quoting N.T. 11/28/06, pp. 137-38.)

“Q. Detective Aninsman, with regard to the training that you attended, is common that detectives such as yourself or patrol officers who are interrogating somebody that you offer the defendant to write down in his own words his accounts of what happened?
“A. Yes.
“Q. And can you by law or could you ever compel or force somebody to write down something if they didn’t want to?
“A. Never.
“Q. In this case had the defendant come back when he said he would come back the subsequent Monday, would he have had the opportunity to review the typed out report if he reused to write down and again, in his own words, his account?
“A. Had he come back he would have been provided the typewritten statement that was testified before that it took hours to type, for him to come back, to review it, and also to make any adjustments to it that he felt proper, which is common for my interviewing techniques. I

On cross-examination, appellant’s counsel attempted to discredit the interview process and imply that appellant was not given the opportunity to share his side of the story. Thus, the redirect examination, as set forth above, was fair response, as the Commonwealth properly attempted to establish that appellant was given the opportunity to review the interview notes and insure the statement was accurate. This process did not implicate appellant’s constitutional rights and neither the detective nor the prosecutor commented on the appellant’s right to remain silent. (N.T. 11/28/06, pp. 110-21, 124-31, 137-38.)

Trial Counsel Was Not Ineffective Failing To Object to the Testimony of Detective Aninsman Who Stated That Appellant Admitted to Criminal Behavior a Number of Times in His Statements to Police

It is understood that admissions of a defendant are admissible as evidence against him in a criminal prosecution as an exception to the hearsay rule under Pennsylvania Rule of Evidence 803(25). Detective Aninsman testified that appellant admitted to criminal behavior on at least 39 different occasions during his interview. Those admissions fall within the widely recognized hearsay exception under Rule 803(25). (N.T. 11/28/06, pp. 110-43.)

Aninsman did not, as alleged by appellant, testify as to his opinion on the ultimate issue of guilt or whether appellant sexually molested his daughter. Rather, Aninsman merely repeated the details of the interview and stated that appellant made incriminating statements. The ultimate issue in this case is not whether or not appellant admitted to criminal behavior 39 times, but rather, whether appellant sexually molested his 4-year-old daughter. As Detective Aninsman did not testify as to the ultimate issue, trial counsel was not ineffective. (N.T. 11/28/06, pp. 110-43.)

Trial Counsel Was Not Ineffective for Failing To Subpoena the Children and Youth File

23 Pa.C.S. §6339 states that reports from Child Protective Services regarding child abuse are confidential. 23 Pa.C.S. §6339. The only exception to this rule that would allow pretrial access to the child protective records, is if the trial court reviews the materials, in camera, and deems them to be material. Pennsylvania v. Ritchie, 480 U.S. 39, 40-41 (1987).

Even if trial counsel had requested that the court do an in camera review of the file, as requested by the public defender post-trial, the information contained therein would not have affected the outcome of the trial.

Specifically, appellant first asserts that the Children and Youth file revealed that A.N. was bragging to her mom’s friends about what appellant did to her. Appellant claims that this information may have changed the outcome of the trial, however, this information confirmed the abuse, and thus, was not, as appellant argued, crucial to the defense, but rather, incriminating and corroborative, of A.N.’s testimony.

Appellant also pointed at a discrepancy in the file regarding how A.N. referred to certain body areas. The fact that A.N. referred to her vagina as her front heinie in the Children and Youth forensic interview as opposed to her pee pee at trial would not have changed the outcome of this case, because the record is clear that both terms referred to A.N.’s vagina.

Appellant also contended that A.N.’s one statement that he did not put anything into her front heinie, that she was being coached by her mother, and the lack of sexual abuse found by A.N.’s pediatrician were crucial to his defense. This claim is meritless because the Children and Youth file also contained numerous statements by A.N., directly implicating appellant in child abuse, which would have also been brought before the jury. In short, given A.N.’s trial testimony, and appellant’s confession, the information contained in the Children and Youth file, most of which was incriminating, would not have materially changed the outcome of this case. Thus, trial counsel was not ineffective for not requesting an in camera review of the Children and Youth file. (N.T. 10/12/07, pp. 45-48.)

Trial Counsel Was Not Ineffective for Failing To Call Brian Kane and the Appellant’s Father, Michael Kane, As Witnesses

A failure to call a witness is not per se ineffective assistance of counsel, for such decision usually involves a matter of trial strategy. Commonwealth v. Auker, 545 Pa. 521, 548, 681 A.2d 1305, 1319 (1996). To have a valid claim for ineffective assistance of counsel on this ground, appellant must demonstrate:

“(1) [that] the witnesses existed; (2) [that] the witnesses were available; (3) that counsel was informed of the existence of the witnesses or should have known of the witnesses’ existence; (4) that the witnesses were available and prepared to cooperate and would have testified on appellant’s behalf; and (5) that the absence of the testimony prejudiced the appellant.” Commonwealth v. Crawley, 541 Pa. 408, 415, 663 A.2d 676, 679-80 (1995); Commonwealth v. Lowery, 784 A.2d 795, 800 (Pa. Super. 2001). Here, the only element of this standard in dispute is whether or not the absence of testimony from Michael and Brian Kane prejudiced the appellant.

At the post-sentence motions hearing, Michael Kane (appellant’s father) testified to the description of appellant’s room in his house where the abuse allegedly took place, and indicated that it differed from the picture drawn by A.N. depicting the room where she claimed the abuse took place. Despite the inconsistencies between the two room descriptions, Kane admitted that A.N. had been in the same bedroom where appellant admitted to the police that the abuse took place. Therefore, any testimony regarding discrepancies between the actual description of certain rooms and that given by A.N. were immaterial. (N.T. 10/12/07, pp. 6-16, 60-61.)

Similarly, Brian Kane’s (appellant’s brother) testimony was offered at the hearing on the post-sentence motions. Kane testified as to where people slept in his father’s house and that A.N. had been there with appellant. He conceded that he was at work during the day and could not account for appellant’s actions or whereabouts most of the time.

Appellant argues that the absence of Brian Kane’s testimony was prejudicial because he would have testified that he never saw appellant touch A.N. inappropriately. Appellant argues that this statement is crucial because A.N. testified that Brian Kane was present when appellant touched her. However, when asked at trial if Brian Kane was present when the abuse occurred, A.N. stated she could not remember. Given appellant’s confession, and other evidence, Brian Kane’s testimony would not have affected the outcome of this case. (N.T. 10/12/07, pp. 23-31; N.T. 11/27/06, pp. 155, 157.)

Trial Counsel Was Not Ineffective for Failing To Object to the Court’s Charge Regarding Corruption of the Morals of a Minor

The standard of review applied to jury instruction challenges is whether or not the trial court abused its discretion or committed an error of law. Hall v. Jackson, 788 A.2d 390, 399 (Pa. Super. 2001). Ajury instruction which accurately reflects the law will be upheld, and reversal is only considered when the jury instruction as a whole caused prejudicial error. Machado v. Kunkel, 804 A.2d 1238, 1244 (Pa. Super. 2002).

The court properly instructed the jury on the charge of corruption of the morals of a minor by utilizing the language of the statute. In addition to Pennsylvania Standard Jury Instruction 15.6301A, the court instructed that:

“Corruption of minors can involve a virtually unlimited variety of types of conduct involving a child, and in order to determine whether conduct might corrupt the morals of a minor, common sense of the community and a general sense of decency, propriety and morality which most people entertain will suffice in applying this section to the facts of this case.” (N.T. 11/29/06, p. 80.)

This additional instruction was supported by existing precedent. Commonwealth v. Decker, 698 A.2d 99 (Pa. Super. 1997).

Contrary to appellant’s assertion that this instruction left the jury with the impression that any act whatsoever regarding this individual would constitute corruption of the morals of a minor, the jury instruction clearly stated the grounds upon which the acts corrupting a minor were to be evaluated, specifically common sense and general decency, which was supported by the precedent set forth above. Furthermore, prior to the above jury instruction, the court specifically instructed the jury that the Commonwealth had the burden of proving that appellant engaged in acts that corrupted the morals of a minor. (Memorandum of law in support of post-sentence motions, pp. 22-24; N.T. 11/29/06, p. 80.)

This court’s instructions reflect that trial counsel was not ineffective for failing to object. The underlying claim is not of arguable merit, because the jury instruction was given using the language of the applicable Pennsylvania statute, standard jury instructions and applicable precedent.

CONCLUSION

For the reasons set forth above, this court properly denied appellant’s post-sentence motions and upheld appellant’s convictions imposed at trial.

      . 18 Pa.C.S. §3125.

      . 18 Pa.C.S. §3126.

      . 18 Pa.C.S. §4304.

      . 18 Pa.C.S. §6301.

      . In his post-sentence motions, appellant also argued that admitting A.N.’s prior consistent statements under Rule 613, even if proper, violated 42 Pa.C.S. §5985.1. The plain language of this statute expands upon the general rules of evidence by providing an additional exception by which an out-of-court statement of a child victim is admissible. This statute, however, is inapplicable to the case at hand because A.N.’s prior statements were properly admitted under Rule 613. The statute provides that out-of-court statements of a child victim not otherwise admissible are subject to this rule. Because A.N.’s statements were otherwise admitted under Rule 613, 42 Pa.C.S. §5985.1 does not apply.

      . Appellant quotes the transcript of Detective Aninsman’s trial testimony in his memorandum of law in support of post-sentence motions. Appellant, however, conveniently omitted the pertinent part in the transcript where trial counsel raised an objection, and replaced this objection with an ellipsis. This omission is somewhat misleading and may undercut appellant’s argument that trial counsel failed to object.

      . Admission by party-opponent. The statement is offered against a party and is (A) the party’s own statement in either an individual or a representative capacity. Pa.R.E. 803(25).

      . On August 2,2007, appellant petitioned for an in camera inspection of the Children and Youth records. The petition was granted on August 9,2007, by Judge David Heckler of this court, and thereafter, counsel was allowed to review this file. (Order, 8/9/07.)

      . For instance, A.N. told the Children and Youth interviewer that appellant touched her front heinie and then pointed to the vagina on the drawing of a girl. A.N. demonstrated how appellant touched her by making the same motions on a stuffed animal. A.N. said that appellant told her not to tell anyone, and that appellant touched her on the couch in his bedroom. A.N. also described how appellant put two fingers into her heinie, that it hurt and that he stopped when she told him to. (Children and Youth report, pp. 9-10.)

      . “Whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of a minor less than 18 years of age, or who aids, abets, entices, or encourages any such minor in the commission of any crime, or who knowingly assists or encourages such minor in violating his or her parole or any order of court commits a misdemeanor of the first degree.” 18 Pa.C.S. §6301 (a)(1).


author: MANFREDI, J,

text:
    Soffer v. General Motors

      Eric G. Zajac, for plaintiff.

      Francis J. Grey Jr. and Eric A. Weiss, for defendant.
    October 15, 2008
   MANFREDI, J,

HISTORY

This case arises from a December 2, 2005 motor vehicle accident in New Jersey. Plaintiff’s decedent, David Arenas, drove into the opposite lane of traffic, striking another vehicle head-on. Plaintiff alleges that the air bag in decedent’s General Motors vehicle did not deploy and the seat belt failed, causing the death of Mr. Arenas.

Defendants, General Motors (GM) and M&M Motors (the car dealer) moved to dismiss plaintiff’s complaint, pursuant to 42 Pa.C.S. §5322(e). After allowing the parties an opportunity to conduct discovery on issues relating to the motion, and file supplemental memoranda, we granted the motion on June 2, 2008 and this appeal followed.

DISCUSSION

A. Legal Standard

42 Pa.C.S. §5322(e) permits a trial court to dismiss a case, even where jurisdictional requirements are met, upon a determination that in the interest of substantial justice the matter would be heard in another forum. No action may be dismissed under this statute unless an alternative forum is available to plaintiff. Jessop v. ACF Industries, 859 A.2d 801, 803 (Pa. Super. 2004). In this case defendants have agreed to waive the statute of limitations to permit the filing of the action in New Jersey, and that such action will be deemed filed as of the date of the original filing in the First Judicial District. Accordingly, the requirement of an alternative forum is met.

Once the court determines that plaintiff has access to an alternative forum, the court must inquire whether weighty reasons exist to overcome the plaintiff’s choice of forum. Farley v. McDonnell Douglas Truck Services Inc., 432 Pa. Super. 456, 461-62, 638 A.2d 1027, 1030 (1994). In conducting this analysis, the court must consider both public and private factors. Engstrom v. Bayer Corporation, 855 A.2d 52, 56 (Pa. Super. 2004). The private factors include:

Relative ease of access to sources of proof;

Availability of compulsory process for attendance of unwilling witnesses;

The cost of obtaining attendance of willing witnesses;

Possibility of a view of the premises, if a view would be appropriate; and

All other practical problems that make trial of a case easy, expeditious and inexpensive.

The public factors include:

Administrative difficulties for courts when litigation brought in congested centers instead of being handled at the matter’s origin;

The burden of jury duty for citizens of the community that has no relation to the litigation; and

The appropriateness of having trial in a forum that is home to the governing law.

Plaintiff, the administratrix, is a Philadelphia resident, however, decedent was a resident of Easton in Northampton County, Pennsylvania.

A trial court is vested with considerable discretion in determining whether to grant a petition to transfer venue. Purcell v. Bryn Mawr Hospital, 525 Pa. 237, 242, 579 A.2d 1282, 1284 (1990). If there is any basis to affirm a trial court’s decision, the decision must stand. Masel v. Glassman, 456 Pa. Super. 41, 45, 689 A.2d 314, 316 (1997). Its ruling will not be disturbed absent an abuse of discretion. Id. An abuse of discretion occurs when the trial judge overrides or misapplies the law, or exercises judgment in a manifestly unreasonable manner, or renders a decision based on partiality, prejudice, bias, or ill will. Cooper v. Nationwide Mutual Insurance Company, 761 A.2d 162, 164 (Pa. Super. 2000).

B. The Interests of Substantial Justice Dictate That This Matter Be Heard in New Jersey, in That Weighty Reasons Exist To Overcome Plaintiff’s Choice of Philadelphia

As there is no dispute that this action could have been properly initiated in New Jersey and that this forum is still available to plaintiff, the court begins its analysis with an examination of the private factors.

Here it is clear that virtually all the liability witnesses—percipient and custodial—are located in New Jersey. The vehicle was purchased in New Jersey, the documents relating to its sale and maintenance history are located in New Jersey. Likewise, the driver of the other vehicle, the New Jersey State Troopers who investigated the accident, the paramedics who responded, the company that towed the vehicle, and the medical examiner (and staff) are all located in New Jersey. Although it is not clear that a view of the scene in Warren County, New Jersey will be necessary, if a view is required, the burden of such an exercise from Philadelphia is considerable. Likewise, should defendant require attendance of any of the foregoing witnesses, or custodians of various New Jersey records relating to the vehicle or the accident, the costs will be much greater, and compulsory process much more difficult. Accordingly, we found that the private factors dictated that the matter be heard in New Jersey.

All of the public factors also weigh in favor of New Jersey. This court is extremely busy, Philadelphia citizens are already burdened with service on cases which actually have a connection with Philadelphia, and the applicable law. Moreover, the mayor has recently announced that, due to the effect of the nationwide financial crisis on Philadelphia, the budget of the First Judicial District will likely be cut by $5,000,000. The sole connection to Pennsylvania is that the administratrix and the decedent’s beneficiary reside in the Commonwealth. On balance, and under the facts of this case, we did not find that this constituted so significant an interest in this case from which it could be divined that the citizens of the Commonwealth of Pennsylvania, in general, or of Philadelphia, in particular, have an overriding interest in the case, so as to warrant expenditure of scarce judicial resources.

Accordingly, for all the reasons set forth, the court found that there were weighty reasons which overcame plaintiff’s choice of forum, and required that this case be dismissed, pursuant to 42 Pa.C.S. §5322(e), without prejudice to re-file in New Jersey.