author: HERRON, J,

text:
    In re Estate of Hydock

      C.P. of Philadelphia County,
    O.C. no. 42 DE of 1992.

      Stephen C. Josel and William M. Labkoff, for petitioner.

      Stephen Schatz, for respondent.
    February 22, 2006
   HERRON, J,

INTRODUCTION

This opinion addresses the factual question of whether a disclaimer of interest executed by the sole heir should be set aside for alleged fraud committed by the administratrix and/or whether the disclaimer should be set aside on legal grounds for failure to issue the notice of beneficial interest required by Pennsylvania Orphans’ Court Rule 5.6. The parties were given an opportunity to present testimony and evidence on these issues at a hearing. For reasons which follow hereinafter, this court grants the petitioner’s request to set aside the disclaimer on the grounds of fraud and the related failure to issue the required notice of beneficial interest. In addition, further equitable relief is mandated to address the substantial concerns that further wrongdoing may occur.

HISTORY OF THE CASE

On June 14, 2002, Joseph Edward Hydock III (decedent) died in a motor vehicle accident. At the time, he was a resident of Philadelphia County and had no will. He was survived, among others not relevant to this controversy, by his father, Joseph Edward Hydock Jr. (petitioner), his sister, Danielle Stauffer, as well as by Shirley Culp, a stepsister and Irving Culp, a stepbrother.

Approximately one week following decedent’s death, a meeting was arranged by the law offices of Oscar Schermer, Esquire. Danielle Stauffer, Shirley and Irving Culp, Cecelia Baum, Mr. Schermer and his assistant all attended the meeting. Petitioner was not invited. As a result of the meeting, it was agreed that petitioner was not capable of serving as administrator of decedent’s estate and Danielle Stauffer was capable of doing so. Cecelia Baum, a long-time neighbor and friend of petitioner, was provided with a form renunciation document and thereafter approached petitioner to request that he sign and renounce his interest in administering the estate in favor of his daughter, Danielle Stauffer.

Mr. Hydock lives with his mother Mary Hydock, who is the grandmother of Danielle and the decedent. When Cecelia Baum brought the renunciation form to Hydock, both she and his mother read it to him because, she testified, he could not read and she had been in the habit of reading documents to him in the past. After Hydock signed the renunciation, they took him to a notary before whom he signed the renunciation. Afterwards, they returned the renunciation to Oscar Schermer.

According to petitioner, he signed the renunciation because he trusted his daughter, Danielle, to administer his son’s estate. When he signed the renunciation, however, he did not know the value of his son’s estate nor the identity of its beneficiaries. The attorney who prepared the papers for the estate had no recollection of sending petitioner the notice of beneficial interest required by Pennsylvania Orphans’ Court Rule 5.6.

On July 10,2002, Danielle Stauffer filed a petition for the grant of letters of administration. That petition listed petitioner and Edith Ann Baum as the sole heirs of the Joseph Edward Hydock III estate, but since Edith Baum (a/k/a Culp) had died in 1985, petitioner was the sole heir to the estate of his son.

Petitioner, 54 years of age, has been examined by various psychological and psychiatric professionals and tested over the years with consistent findings classifying him as of borderline intelligence with an IQ of approximately 72, placing him at the three percent level among all those tested. He is classified at the first grade level in both reading and reading comprehension skills. He relies upon trusted individuals to read and explain documents to him.

In or about September 2002, petitioner telephoned Mr. Schermer. While the parties dispute the nature of the call and the substance of the conversation, there is no dispute that Mr. Schermer hung up on petitioner following a brief conversation. Petitioner claims he called to ask for his money from the estate. Mr. Schermer and his legal assistant who listened in to the telephone call on speaker phone both claim that petitioner indicated that he wanted his daughter to administer the estate (although she had been doing so since the renunciation was executed several months before), that he did not want any money from the estate, that he wanted his daughter to receive the money and that he had been a poor father. Given all the circumstances and the demeanor of the witnesses presenting testimony, this court is convinced that petitioner’s testimony is credible and that the testimony of Mr. Schermer and his assistant is not.

Thereafter, Danielle Stauffer appeared in Mr. Schermer’s office on December 5,2002 and signed an inventory indicating a gross estate valued at $533,993.78, which represented the proceeds from the wrongful death action. During this meeting, a two-page disclaimer was prepared for petitioner to sign renouncing his beneficial interest in the estate not only in favor of his daughter, Danielle Stauffer, but also in favor of two others who were misidentified as his children: Shirley Culp and Irving Culp. In contrast to the renunciation, Cecelia Baum was not asked to present the disclaimer to Hydock.

On December 7, 2002, Danielle Stauffer, accompanied by Virginia Nace and Barbara Foster, who are both sisters-in-law, drove to petitioner’s apartment. Ms. Stauffer exited the vehicle and went inside petitioner’s apartment where both petitioner and his mother resided. She did not present the disclaimer to petitioner for review but had him accompany her to the car and then proceeded to drive to a notary public. Because petitioner had no identification with him, they drove back to petitioner’s apartment, retrieved identification and then returned to the notary public where the disclaimer was signed by petitioner and witnessed by the others. At no time was the disclaimer read or its full legal implications explained to petitioner and at no time was petitioner given a copy of the disclaimer. Instead, Danielle Stauffer told the petitioner that it was necessary to sign the disclaimer so that the state would not receive the estate proceeds. Finally, on February 11,2003 a notice of beneficial interest in the estate of Joseph E. Hydock III was sent to Danielle Stauffer, Shirley Culp and Irvin Culp.

DISCUSSION

1. The Disclaimer Should Be Set Aside Where Petitioner Presented Clear and Convincing Evidence That the Fiduciary of His Son s Estate Procured Petitioner s Disclaimer by Fraud and the Disclaimer Itself Was Inherently Fraudident in Its Designation of Certain Beneficiaries As Petitioner s Children

It is uncontested that Danielle Stauffer took the initiative to have herself named administratrix of her deceased brother’s estate by asking her father to renounce that role. He yielded to her request because he trusted her. Under long-standing Pennsylvania precedent, that trust is protected by the fiduciary duty imposed on an executor or administratrix of an estate. As the Superior Court recently observed:

“More than one-half century ago, our Supreme Court defined the role and duty of an executor as a fiduciary. ‘An executor is a fiduciary no less than is a trustee, and, as such, primarily owes a duty of loyalty to a beneficiary of his trust. Executors, as well as other fiduciaries, are under an obligation to make full disclosure to beneficiaries respecting their rights and to deal with them with utmost fairness.’ ” Estate of Harrison, 745 A.2d 676, 679 (Pa. Super. 2000). (citations omitted)

In addition to this obligation of full disclosure, a fiduciary is also bound by a rule forbidding self-dealing both, “to shield the estate and its beneficiaries and ensure [s] the propriety of the executor’s conduct.” Estate of Harrison, 745 A.2d at 679. As the Pennsylvania Supreme Court observed, the “test of forbidden self-dealing is whether the fiduciary had a personal interest in the subject transaction of such a substantial nature that it might have affected his judgment in a material connection.” Noonan Estate, 361 Pa. 26, 31, 63 A.2d 80, 83 (1949). (emphasis in original)

The fiduciary in this case, Danielle Stauffer, clearly had a personal interest in obtaining her father’s disclaimer of interest in his son’s estate. By procuring a disclaimer from her father without disclosing the size of the estate or that he was its sole beneficiary, Danielle Stauffer became a beneficiary of her brother’s estate. She therefore had a clear personal interest in the procurement of her father’s disclaimer such that it might have affected her judgment.

Based on the record presented, this court further concludes that Danielle Stauffer obtained her father’s disclaimer by fraudulently representing to petitioner that it was necessary to sign the disclaimer so that the state would not receive the estate proceeds, and on that basis, petitioner signed the disclaimer without reading or understanding the true nature of the document.

It is well established that “fraud consists of anything calculated to deceive, whether by a single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, word of mouth, or look or gesture.” Moser v. DeSetta, 527 Pa. 157, 163, 589 A.2d 679, 682 (1991). (citations omitted) Moreover, the Pennsylvania Supreme court observed in Moser, the “concealment of a material fact can amount to a culpable misrepresentation no less than does an intentional false statement.” Id. The elements of fraud consist of: “(1) a misrepresentation, (2) a fraudulent utterance thereof, (3) an intention by the maker that the recipient will thereby be induced to act, (4) justifiable reliance by the recipient upon the misrepresentation, and (5) damage to the recipient as the proximate result.” Pittsburgh Live Inc. v. Servov, 419 Pa. Super. 423, 428-29, 615 A.2d 438, 441 (1992). (citations omitted) Moreover, fraud or intent to defraud “is never presumed and must be proved by evidence that is clear, precise and convincing.” Snell v. Commonwealth, State Examining Board, 490 Pa. 277, 281, 416 A.2d 468, 470 (1980). (citations omitted)

In cases involving a confidential relationship, however, the Pennsylvania Supreme Court has emphasized that the “well settled doctrine, founded on strong considerations of public policy, renders inapplicable the general rule requiring an affirmative showing of fraud. To the contrary, transactions between persons occupying a confidential relationship are prima facie voidable, and the party seeking to benefit from such a transaction must demonstrate that it was ‘fair, conscientious and beyond the reach of suspicion. ’ ” Young v. Kaye, 443 Pa. 335, 342, 279 A.2d 759, 763 (1971). (citations omitted)

It is clear to this court that Danielle Stauffer aided and abetted by the preparation of a two-page disclaimer intended to deceive petitioner into renouncing his interest in his deceased son’s estate. The plan, although it succeeded, was ineptly and poorly executed. First, it is clear that the disclaimer subsequently executed by petitioner characterized Shirley Culp and Irving Culp as petitioner’s children, which was factually incorrect. Second, by all accounts, petitioner was never given a copy of the document and it was never read to him in the presence of anyone at any time even though it was well known that he could neither read nor comprehend documents but relied on others to explain them. Third, Shirley Culp had evicted petitioner from her mother’s home in 1994 and it was known that petitioner and Shirley Culp disliked each other and thus renouncing his interest in the estate and allowing one-third of the estate to pass to Shirley Culp was inconceivable as a volitional act by petitioner. Fourth, in the automobile on the way to the notary, Danielle Stauffer never told petitioner the amount of the estate, although she was aware of this in November 2002, never told her father that he was the sole heir and never corrected petitioner when he erroneously mentioned the claim of Cecelia Baum against the decedent’s estate when, in fact, it was the claim of Melissa Baum on behalf of her son who died in the automobile with decedent. Fifth, and perhaps most telling, Danielle Stauffer told her father that she would give him money but never indicated that the disclaimer removed him entirely and provided for division of the estate to her, Shirley and Irving Culp, and she admitted remaining silent on these most salient points.

Finally, Ms. Stauffer failed to adhere to Pennsylvania Orphans’ Court Rule 5.6(a) which provides that “[wjithin three months after the grant of letters, the personal representative to whom original letters have been granted or the personal representative’s counsel shall send a written notice of the estate administration in the form set forth in Rule 5.7” in the case of intestacy to all intestate heirs. Since letters of administration were granted to Danielle on July 10,2002, and her petition for these letters listed her father as the sole intestate heir of the estate, she had until approximately October 10, 2002 to send this formal notice to him. Her attorney, however, had no recollection of preparing this notice, and while he explained this omission as due to his illness and hospitalization, he nonetheless was able to prepare the estate inventory and disclaimer by December 2002. No explanation was offered as to why a Rule 5.6 notice had not been prepared as well. Ms. Stauffer’s failure to provide this required notice to her father is all the more striking in light of the notice of beneficial interest that was subsequently sent to her, Shirley Culp and Irving Culp with a file date of February 13, 2003.

On these facts, the court unhesitatingly finds that fraud has been proven by the standard of clear and convincing evidence, that Ms. Stauffer breached her fiduciary duty to her father, and that petitioner’s disclaimer should be set aside. The respondent argues against setting aside the disclaimer by invoking 20 Pa.C.S. §6205(a), which provides:

“In General — A disclaimer relates back for all purposes to the date of the death of the decedent or the effective date of the inter vivos transfer or third party beneficiary contract as the case may be. The disclaimer shall not in any way diminish the interest of any person other than the disclaimant in such person’s own right under the instrument creating the disclaimed interest or under the intestate laws nor diminish any interest to which such person becomes entitled under subsection (b) by the disclaimer.” 20 Pa.C.S. §6205(a).

In addition, she invokes Estate of Ciaffoni, 787 A.2d 971 (Pa. Super. 2001), in which the Superior Court analyzed the “plain meaning” of the statutory language in section 6205 to conclude that “the disclaimant is precluded unequivocably from revoking a properly executed disclaimer.”Id., 787 A.2d at 974. (emphasis added) The operative words in this opinion, however, are that a disclaimer is “properly executed.” Moreover, the facts of Ciaffoni, which the court characterized as a case of first impression, are highly distinguishable, in Ciaffoni, the party seeking to revoke his disclaimer had been involved in a heated will contest and had consciously disclaimed his interest to express his belief that the will was invalid. When he thereafter sought 17 years later to revoke that disclaimer on the grounds that there would be no prejudice to any beneficiaries since no distributions had occurred, the Superior Court rejected “lack of prejudice” as a rationale for revoking the disclaimer. In contrast to the instant case, however, there was no allegation in Ciaffoni that the disclaimer had been improperly executed as the result of fraud by a fiduciary/beneficiary or that the disclaimer itself was fraudulent.

The other case invoked by respondent, Pedrick Estate, 19 D.&C.4th 360 (York Cty. 1993), is similarly distinguishable. It also did not involve any allegation of fraud in the procurement of the disclaimer. In fact, the Pedrick court specifically distinguished another case as inapplicable because it did involve fraud. Id. at 365 (distinguishing Day’s Estate, 22 Fiduc. Rep. 662 (O.C. Delaware 1971) as a case involving fraud upon the disclaim-ant). In light of the facts of this case, it would be highly inequitable to allow the respondent to reap the benefit of her fraud by failing to set aside the disclaimer. Indeed, other courts have set aside disclaimers to avoid an inequitable result.

Although tangential to the issues before this court, mention of counsel’s conduct is necessary. In this case, Mr. Schermer knew that the petitioner was unrepresented when he executed the disclaimer on December 7, 2002 and was aware through the brief telephone conversation in September 2002 that petitioner was impaired. Mr. Schermer claims that he believed the petitioner was intoxicated and the petitioner admits to having consumed alcohol on the occasion of the telephone conversation. Given the content of the conversation, irrespective of Mr. Schermer’s version, it is clear that Mr. Schermer had a duty under Rule 4.3 of the Pennsylvania Rules of Professional Conduct to advise petitioner, an unrepresented person, to retain counsel. Given Mr. Schermer’s knowledge of petitioner’s intellectual deficits, it was all the more imperative to do so. If the opportunity did not present itself in the telephone conversation, a subsequent letter should have been sent. The December 5 preparation of the two-page disclaimer directly facilitated the substantial and unforgivable acts of fraud which occurred in this matter and which might have been avoided had independent counsel been consulted by petitioner.

II. To Prevent Future Wrongdoing, Danielle Stauffer Must Be Removed As Administratrix of the Estate of Edward FfydockHI, Deceased

Danielle Stauffer was in a confidential and trusted relationship with her father, the petitioner, and he relied on that relationship to his detriment. Since Danielle Stauffer has been found to have committed serious acts of fraud, this court cannot countenance permitting her to remain as the administratrix. Accordingly, in addition to the relief requested by petitioner, this court, pursuant to 20 Pa.C.S. §3182, also enters an order removing Danielle Stauffer as the administratrix and refers this matter to the Register of Wills for appointment of a successor. Needless to say, the order further provides that all assets of the estate are frozen, that an account be prepared and that all records, statements and property of the estate be turned over to the successor administrator forthwith.

      . Joseph Edward Hydock Jr.’s petition to set aside disclaimer, ¶¶1-4; respondent Danielle Stauffer’s answer, ¶¶ 1 -4. Shirley and Irving Culp are not related to petitioner. Petitioner and Edith Culp were the parents of decedent and respondent Danielle. Edith Culp (a/k/aBaum), who died in 1985, was also the mother of Shirley and Irving Culp. 3/ 15/2005 Hearing Transcript (N.T.) at 44-45 (Mary Hydock); 3/15/2005 N.T. at 160-61 (Hydock).

      . 3/15/2005 N.T. at 14-16, 21 (Cecelia Baum); 3/15/2005 N.T. at 205 (Schermer).

      . 3/15/2005 N.T. at 16 (Cecelia Baum).

      . 3/15/2005 N.T. at 159-60 (Hydock).

      . 3/15/2005 N.T. at 16-17 (Cecelia Baum).

      . 3/15/2005 N.T. at 164 (Hydock).

      . 3/15/2005 N.T. at 164-65 (Petitioner referencing exhibit P-2).

      . 3/15/2005 N.T. at 207 (Schemer) (conceding that he prepared the papers for the estate of Joseph Hydock III but having no recollection of sending the 5.6 notice to petitioner). Rule 5.6 requires that this notice be sent within 3 months of the grant of letters.

      . 3/15/2005 N.T. at 209 (Schemer).

      . See exhibit P-11.

      . Edith Baum, the mother of decedent and Danielle Stauffer, died in 1985. See P-14, 3/10/2004 deposition of Danielle Stauffer at 7. The redacted deposition of Ms. Stauffer was admitted to evidence as P-14. 3/16/2005 N.T. at 16-17.

      . 3/15/2005 N.T. at 209 (Schemer).

      . The petitioner presented the testimony and reports of a psychologist, Dr. Bonnie Socket, and a psychiatrist, Dr. Richard Saul. The respondent presented testimony by a psychiatrist, Dr. Timothy Michals. They all agreed on these key points relating to petitioner’s IQ and reading ability. See e.g., 3/15/2005 N.T. at 75-79 (Socket); exhibit P-4; 3/15/2005 N.T. at 131-32 (Saul); 3/16/2005 N.T. at 84, 92-93 (Michals).

      . 3/15/2005 N.T. at 17 (Cecelia Baum); 3/15/2005 N.T. at 31 (Mary Hydock).

      . 3/15/2005 N.T. at 167-68 (Hydock); 3/15/2005 N.T. at 215-16 (Schermer).

      . 3/15/2005 N.T. at 167-68 (Hydock).

      . 3/15/2005 N.T. at 215 (Schermer); 3/16/2005 N.T. at 20-23 (Nuss).

      . See exhibit P-10 (inventory); 3/15/ 2005 N.T. at 211-12 (Schermer); exhibit P-9 (disclaimer).

      . 3/15/2005 N.T. at 18 (Cecelia Baum).

      . 3/16/2005 N.T. at 52-55 (Danielle Stauffer); 3/16/2005 N.T. at 5-10 (Barbara Foster); 3/15/2005 N.T. at 101-105 (Virginia Nace).

      . 3/15/2005 N.T. at 170, 172, 173 (Hydock) (Petitioner testified that he did not get a chance to see the disclaimer before signing it nor was he given a copy of it to show his mother). P-14, 3/10/2004 depo. of Danielle Stauffer at 37 (Danielle left disclaimer in car when she picked up her father from her grandmother’s apartment).

      . 3/15/2005 N.T. at 169-75 (Hydock); 3/15/2005 N.T. at 103-11 (Nace); 3/16/2005 N.T. at 5-11 (Foster).

      . Danielle admits that she did not read the disclaimer to her father; instead, she told him “you have to sign the paper in order for me to receive the money.” She admits that she did not tell him that, based on this disclaimer, Shirley and Irvin Culp would get money from the estate. Exhibit P-14 (Stauffer depo.) at 38-39. Although she realized that this disclaimer would prevent her father from getting anything, she nonetheless “told him I would give him money once 1 received it” without disclosing the estate’s value of $533,000. Exhibit P-14 at 40-41.

      . Mary Hydock testified that her granddaughter did not bring the disclaimer up to the apartment when she came in December to pick up her father. 3/15/2005 N.T. at 41 .Virginia Nace, respondent’s sister-in-law, testified that Danielle kept the disclaimer after petitioner signed it. 3/15/2005 N.T. atlll.

      . 3/15/2005 N.T. at 185-86 (Hydock); 3/16/2005 N.T. at 78 (Michals); 3/15/2005 N.T. at 39, 41 (Mary Hydock).

      . See exhibit P-12. In explaining this delay, the attorney for the estate noted that he had been sick in the hospital for a while. He had, however, been able to prepare the disclaimer and inventory in December 2002. 3/15/2005 N.T. at 228-3 l(Schermer).

      . Exhibit P-14,3/10/2004 Stauffer depo. at 34; 3/16/2005 N.T. at 65 (Stauffer); 3/15/2005 N.T. at 164-65 (Hydock).

      . 3/15/2005 N.T. at 185-86 (Hydock). Respondent’s own witness, Dr. Michals, testified that petitioner told him that “his daughter told him to sign a statement concerning another legal document or otherwise the state may get the money.” 3/16/2005 N.T. at 78 (Michals). Mary Hydock stated that Danielle told petitioner he needed to sign the paper “in order to get the money,” 3/15/2005 N.T. at 39, and because otherwise the state was going to take the money. 3/15/2005 N.T. at 41 (Mary Hydock).

      . See e.g., exhibit P-9 (disclaimer).

      . Exhibit P-14, 3/10/2004 Stauffer depo. at 35.

      . See e.g., exhibit P-14, 3/10/2004 Stauffer depo. at 37-38, 42, 52-53; 3/16/2005 N.T. at 57(when asked if she ever showed petitioner the disclaimer document, Stauffer responded “No, I didn’t”); 3/15/ 2005 N.T. at 170,172-75 (Hydock) (stating that Danielle never showed him the disclaimer).

      . 3/15/2005 N.T. at 17 (Cecelia Baum).

      . 3/16/2005 N.T. at 35 (Shirley Culp); 3/16/2005 N.T. at 65-66 (Stauffer). Danielle conceded that she never told her father the estate would be divided to provide for Shirley and Irving Culp. 3/16/2005 N.T. at 71.

      . 3/16/2005 N.T. at 66-67, 69-70 (Stauffer).

      . 3/16/2005 N.T. at 54-55, 70-71 (Stauffer); exhibit P-14, 3/10/ 2004 Stauffer depo. at 35, 39, 40-41.

      . 3/15/2005 N.T. at 207 (no recollection re 5.6(a) notice to petitioner), 211-12 (prepared 12/05/2002 inventory and disclaimer), 229-30 (Schermer).

      . See exhibit P-13.

      . Because Ms. Stauffer was a fiduciary with a conflict of interest and potential self-dealing, it is well established that “where there is self-dealing [by] a fiduciary, it is immaterial to the question of his liability in the premises whether he acted without fraudulent intent....” Banes Estate, 452 Pa. 388, 395, 305 A.2d 723, 727 (1973). (citation omitted) As the Superior Court recently explained, the “test of forbidden self-dealing is whether the fiduciary had a personal interest in the subject transaction of such a substantial nature that it might have affected his judgment in a material connection.... The fiduciary’s disqualifying interest need not be such as ‘did affect his judgment’ but merely such as ‘might affect his judgment.’ ” Estate of Harrison, 745 A.2d 676, 679 (Pa. Super. 2000). (citations omitted) (emphasis added)

      . See respondent’s answer, memorandum at 1-2; respondent’s pretrial memorandum at 2.

      . See e.g., Days Estate, 22 Fiduc. Rep. 662 (Del. Cty. O.C. 1971) (disclaimer procured by ‘undue persuasion’ set aside when unrepresented beneficiary repudiated it in timely fashion); Stirk Estate, 10 Fiduc. Rep. 623 (Del. Cty. O.C. 1960) (disclaimer made by child of decedent set aside where she was ignorant of her interests, unrepresented by counsel and the disclaimer was prepared by counsel for the decedent’s other five children).

      . Rule 4.3 focuses on dealing with unrepresented persons.

      . The present record more than suffices to justify removal of Ms. Stauffer as administratrix. See Estate of Dobson, 490 Pa. 476, 483 n.6, 417 A.2d 138, 142 n.6 (1980) (“Where a conflict of interest or self-dealing is apparent from the circumstances, there is no need to demonstrate that the fiduciary acted in bad faith or with fraudulent intent. Such a conflict of interest may also justify the removal of the executor.”).


source: Caselaw Access Project

author: WHERRY, S.J,

license: Public Domain

text:
    Newspaper Holdings Inc. v. New Castle Area School District

      C.P. of Lawrence County,
    no. 70138 of 2005, M.D.

      James W. Manolis, for petitioner.

      Charles Sapienza, for respondents.
    February 22, 2006
   WHERRY, S.J,

This case is before the court for the disposition of petitioner’s petition for review of the New Castle Area School District’s determination that a settlement agreement was not a “public record” pursuant to 65 P.S. §66.8.

Petitioner and respondents stipulated to the following factual findings: Newspaper Holdings Inc. (petitioner) is a corporation duly organized and existing under the laws of the State of Delaware, having an office and place of business at 27 North Mercer Street, New Castle, Lawrence County, Pennsylvania 16101. Petitioner publishes the New Castle News, a newspaper of general circulation in Lawrence County, Pennsylvania. The respondent, New Castle Area School District (NCASD), is a public school district located in Lawrence County, Pennsylvania, having its administrative offices at 420 Fern Street, New Castle, Pennsylvania 16101. The respondent, John J. Sarandrea, is an adult individual who resides in Union Township, Lawrence County, Pennsylvania, 16101 and is the principal of the NCASD-New Castle Senior High School. The respondent, Robert Razzano, is an adult individual who resides at 1611 Carlisle Street, New Castle, Pennsylvania 16101 and is the assistant principal of the NCASD-New Castle Senior High School.

On September 20,2004, William P. Zeiger and Victoria M. Zeiger, parents and natural guardians of [ ], a minor, filed a lawsuit against the defendants, NCASD, George Gabriel and Mark Elisco, alleging that the minor child’s civil rights were violated as more fully set forth in a complaint filed in the Court of Common Pleas of Lawrence County, Pennsylvania, at no. 11214 of 2004, Equity (lawsuit no. 1). On September 20,2004, Krystel M. Lutz and Brenda L. Martin, parent and natural guardian of [ ], a minor, filed a lawsuit against the defendants, NCASD, George Gabriel, Sarandrea and Razzano, alleging that the minor child’s civil rights were violated as more fully set forth in a complaint filed in the Court of Common Pleas of Lawrence County, Pennsylvania, at no. 11216 of 2004, Equity (lawsuit no. 2).

On October 12, 2004, lawsuit no. 1 and lawsuit no. 2 were removed to the United States District Court for the Western District of Pennsylvania. Subsequent to that removal, George Gabriel was dismissed as a defendant, and lawsuit no. 1 and lawsuit no. 2 were consolidated and captioned William P. Zeiger and Victoria M. Zeiger, parents and natural guardian of [ ], a minor v. New Castle Area School District, no. 2:04-CV-1556 (federal case).

On or about April 15, 2005, the plaintiff-students negotiated a settlement agreement with the defendants in the federal case (settlement agreement). During the settlement negotiations, the NCASD, and not the plaintiff-students, insisted that a confidentiality provision be included in the settlement agreement and the record in the federal case be sealed to inhibit public access to the terms of the settlement. The plaintiff-students were not concerned about the disclosure of the terms of the settlement agreement, but to secure the settlement, agreed to the confidentiality clause and the request that the record be sealed. The aforestated settlement agreement was signed and memorialized on May 7 and 8,2005.

In May of 2005, petitioner learned that the NCASD may have settled the federal case with the plaintiff-students and made inquiry of the NCASD as to the terms of the settlement agreement. On and after July 14, 2004, the NCASD had in effect a written policy and regulations adopted pursuant to the Right to Know Law, particularly 65 RS. §66.8; however, the NCASD refused to provide petitioner with any information relating to the terms of the settlement agreement. On May 17, 2005, petitioner forwarded a “Request for access” to the office of defendant, George Gabriel, superintendent of the NCASD, requesting a copy of the written settlement agreement. On May 20,2005, the NCASD responded to petitioner’s “Request for access” in a letter from the NCASD solicitor, dated May 20, 2005, in which the NCASD indicated that a formal settlement had not been reached and when said settlement had been reached, the NCASD would consider whether said settlement was a “public record” under the Right to Know Law, and whether it would be provided to petitioner. On June 8, 2005, the plaintiff-students presented to the federal court a petition for decree authorizing settlement of minor’s claim under Local Rule 17.1, which contained a request that the petition and any resultant order of court be sealed from public inspection because “the parties agreed to keep confidential all of the settlement terms.” Without holding a hearing, the federal judge entered an order on June 8, 2005 stating: “[tjhat the accompanying petition, its exhibits and this order of court be sealed from public disclosure, pursuant to the parties’ agreement for confidentiality.”

On June 15, 2005, the NCASD adopted a resolution formally accepting the terms of the settlement agreement and, on June 17, 2005, Petitioner requested that the NCASD provide petitioner with the NCASD policy relative to petitioner’s request under the Right to Know Act. On June 18, 2005, solicitor for the NCASD responded to petitioner’s “Request for access” with a denial of request. Said denial was based on the June 8, 2005 order of court sealing the record. Petitioner appealed the denial on June 30,2005 and, on July 12,2005, the NCASD made a final determination of petitioner’s request by again issuing a denial on the same basis as their initial denial.

Petitioner filed a petition for review of those proceedings on August 8,2005. Additionally, on August 11,2005, petitioner filed a motion to intervene and motion to reconsider and modify order in the matter of William P. Zeiger and Victoria M. Zeiger, parents and natural guardian of [ ], a minor v. New Castle Area School District, no. 2:04-CV-1556. Only the NCASD objected to petitioner’s motions. On August 19, 2005, the NCASD filed a response to motion to intervene and motion to reconsider and modify order. On August 29,2005, petitioner filed their reply to NCASD’s response. On August 31, 2005, United States District Judge, Arthur J. Schwab, issued a memorandum opinion and order of court, which unsealed the June 8, 2005 order and accompanying petition; however, the August 31, 2005 order was stayed until the parties fully litigated the matter on appeal. Neither party filed an appeal to the federal district court’s August 31, 2005 order; therefore, that order of court is a final order.

Additionally, the court makes the following findings of fact. In the order of court, issued June 8,2005, by the Honorable Judge Arthur J. Schwab, the agreement and record was sealed pursuant to the following statement: “[t]hat the accompanying petition, its exhibits and this order of court be sealed from public disclosure, pursuant to the parties’ agreement for confidentiality.” Paragraph nine of the parties’ settlement agreement contains the following language:

“The parties covenant and agree to keep the terms and amounts of this settlement confidential, excepting only disclosures required to be made by the school district [NCASD] pursuant to the Sunshine Act, Right to Know Act and other similar laws and disclosures required to be made by any party pursuant to court order or other mandatory legal process ....”

Pursuant to the Pennsylvania Right to Know Law, government agencies are required to make public records accessible to members of the public for inspection and duplication. 65 P.S. §66.2 (2005). A public agency, such as the NCASD, has an affirmative responsibility to provide access to public records where such access is requested via writing. Id. at section 66.3-4. When a settlement agreement fixes the rights or personal property of the parties or calls for the payment of money involving the disbursement of public funds, it is then subject to disclosure pursuant to the Pennsylvania Right to Know Law. Morning Call Inc. v. Lower Saucon Township, 156 Pa. Commw. 397, 627 A.2d 297 (1993). The terms of a settlement agreement involving a federal civil rights action, based upon the conduct of a public entity and its employees, is deemed to contain information relating to the administration of the business of the public; therefore, such a settlement agreement is a public record defined within 65 P.S. §66.1. Tribune-Review Publishing Company v. Westmoreland County Housing Authority, 795 A.2d 1094 (Pa. Commw. 2002), affirmed, Tribune-Review Publishing Company v. Westmoreland County Housing Authority, 574 Pa. 661, 833 A.2d 112, 116 (2003). The public’s right of access cannot be contracted away by the parties in such a settlement agreement. Cogan Sklar & Levick v. Commonwealth of Pennsylvania, Insurance Department, 814 A.2d 825, 828 (Pa. Commw. 2003), citing PG Publishing Co. v. County of Washington, 162 Pa. Commw. 196, 638 A.2d 422 (1994). However, a public agency may properly deny access to an otherwise public record where such disclosure is prohibited by court order of decree. 65 P.S. §66.1 (2005).

There are several provisions under Pennsylvania law for a party requesting information, pursuant to the Pennsylvania Right to Know Law, to collect reasonable attorney’s fees and court costs. These provisions are found within 65 P.S. §66.4-1:

“If a court reverses an agency’s final determination, the court may award reasonable attorney’s fees and costs of litigation or an appropriate portion thereof to a requestor if the court finds either of the following:

“(1) The agency willfully or with wanton disregard deprived the requestor of access to a public record subject to access under the provisions of this act; or

“(2) The exemptions, exclusions or defenses asserted by the agency in its final determination were not based upon a reasonable interpretation of law.”

The statute further reads, “[ojther sanctions . . . [njothing in this act shall prohibit a court from imposing penalties and costs in accordance with applicable rules of court.” 65 P.S. §66.4-1(c) (2005).

The first issue before the court is whether the final determination of the NCASD denying petitioner access to the settlement agreement was proper under the provisions of the Pennsylvania Right to Know Law, 65 P.S. §66.1 et seq.

NCASD based their refusal to provide petitioner with the settlement agreement on the grounds that Judge Schwab’s order of court, dated June 8, 2005, sealed the record. However, in the June 8,2005 order, Judge Schwab clearly indicated that the record was sealed “pursuant to the parties’ agreement for confidentiality.” Paragraph nine of the settlement agreement clearly states that the NCASD is permitted to disclose the settlement agreement in compliance with the Pennsylvania Right to Know Law. Furthermore, it was the NCASD, not the plaintiff-students, who requested that the settlement be made confidential and that the record be sealed. Although the Pennsylvania Right to Know Law and the policy adopted by the NCASD states that information sealed via court order is not a “public record” subject to disclosure, the effect of Judge Schwab’s order allowed for disclosure pursuant to paragraph nine of the settlement agreement and, as a result, did not fully seal the information.

Therefore, the court holds that the NCASD was obligated, pursuant to the Pennsylvania Right to Know Law and paragraph nine of the parties’ settlement agreement, to disclose the settlement agreement to petitioner.

The remaining issue before the court is whether petitioner is entitled to an award of attorney’s fees and costs of litigation under the provisions of the Pennsylvania Right to Know Law, 65 P.S. §66.4-1.

Although there are several provisions under Pennsylvania law where attorney’s fees and costs of litigation may be awarded to the party requesting information pursuant to Pennsylvania’s Right to Know Law, there is only one such provision applicable in the instant dispute. Thus, the question can be narrowed to whether “[t]he exemptions, exclusions or defenses asserted by the agency in its final determination were not based upon a reasonable interpretation of law....” 65 P.S. §66.4-l(a)(2).

In denying petitioner access to the settlement agreement, the NCASD relied upon Judge Schwab’s June 8, 2005 order of court, which served to seal the record including the settlement agreement sought by the petitioner. In doing so, the NCASD relied upon the law that “a public agency may properly deny access to an otherwise public record where such disclosure is prohibited by court order of decree.” Id. at section 66.1. However, Judge Schwab’s order of court did not prohibit the disclosure of the settlement agreement. Judge Schwab expressly stated that the record was sealed “pursuant to the parties’ agreement for confidentiality.” As previously discussed, the June 8,2005 order of court coupled with paragraph nine of the settlement agreement indicate that the NCASD did not base their denial of petitioner’s request on a reasonable interpretation of law. Id. at section 66.4-1(a)(2).

Additionally, the court accepts petitioner’s claim that they were required to file a petition for review with this court within the required 30-day time period. Id. at section 66.4(b). Furthermore, in order to prevail on their claim in state court, petitioners prudently filed in federal court a motion to intervene and motion to reconsider and modify order. The motions filed in federal court allowed petitioner access to the language in the June 8, 2005 order of court issued by Judge Schwab, which is the basis for their contention that the terms of the settlement agreement were wrongfully withheld.

Therefore, the court holds that petitioner is entitled to reasonable attorney’s fees and court costs based upon the time incurred in this instant case and in the federal court litigation. However, since petitioner has not yet submitted a claim for a specific amount of attorney’s fees and litigation costs before this court, it is hereby ordered that petitioner shall submit said claim for a specific amount of attorney’s fees and litigation costs along with supporting affidavits from attorney’s within Lawrence County, Pennsylvania, attesting to the reasonableness of said expenses within 14 days of this order and opinion.

ORDER

And now, February 22, 2006, the court having heard argument regarding petitioner’s petition for review of the New Castle Area School District’s determination that a settlement agreement was not a “public record” pursuant to 65 P.S. §66.8, with James Manolis, Esquire, appearing and representing the petitioner and Charles Sapienza, Esquire, appearing and representing the respondents, the court finds and it is hereby ordered, adjudged and decreed as follows:

(1) Respondents are directed to produce a true and correct copy of the executed written settlement agreement.

(2) The prothonotary shall properly serve notice of this order upon counsel of record; and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.


author: MINORA, J.,

text:
    Millan v. LaPorta

      C.P. of Lackawanna County,
    no. 03-CV-4956.

      Lawrence Spegar, for plaintiffs.

      Patrick Carey, for defendant.
    December 30, 2005
   MINORA, J.,

INTRODUCTION

This matter comes before the court by way of preliminary objections filed by the defendant, Guido LaPorta DPM, MS and LaPorta and Associates PC to the plaintiffs’ complaint. This medical malpractice action arises out of alleged post surgery complications experienced by the plaintiff, George Millan. The underlying facts as alleged are set forth below:

STATEMENT OF THE CASE

The present matter was commenced by issuance of writ of summons on November 26, 2003 and reissued December 31, 2003. Defendants filed a praecipe for a rule to file a complaint on March 21, 2004. A rule was entered on the same day.

The plaintiffs filed the complaint on April 25, 2005, containing the following claims: the essence of Count One as asserted by George and Marilyn Millan is in negligence against Guido LaPorta DPM, MS and LaPorta and Associates PC; the essence of Count Two as asserted by George Millan against Guido LaPorta DPM, MS and Laporta and Associates PC is in medical negligence/corporate negligence; the essence of the Count Three as asserted by Marilyn Millan against both defendants is for loss of consortium.

At all times relevant to this matter defendant, Dr. Guido LaPorta DPM, MS, was a licensed professional maintaining his practice within the Commonwealth of Pennsylvania. Likewise, at all times relevant, the defendant, LaPorta and Associates PC, operated as a licensed professional corporation which at all times has been engaged in the business of providing health care services with offices in the Commonwealth of Pennsylvania. The material allegations of the complaint are as follows:

During the fall of 2001, George Millan came under the medical care of Dr. Guido LaPorta. Upon LaPorta’s recommendation, Millan underwent a total right ankle arthroplasty conducted on November 23,2001. The surgical procedure was performed to provide better stability and strength by the insertion of a titanium plate in the plaintiff’s right ankle. (See complaint, ¶¶8-9.) After the surgery, George Millan underwent follow-up visits/treatments with Dr. LaPorta and other medical personnel employed/associated with LaPorta and Associates PC. (See ¶¶13, 14 of plaintiff’s complaint.) Millan asserts that before the surgery was performed, he informed Dr. LaPorta of his annual trip to Florida he and his wife planned to take in January 2002. (Id. at ¶16.) In response, Millan alleges that LaPorta assured him that he would not have any difficulty after the surgery and, in fact, LaPorta is alleged to have ensured Millan of greater stability and strength after the surgery. (Id. at ¶¶19, 20.)

Prior to the trip to Florida on January 17, 2002, it is alleged that George Millan felt great pain and discomfort. Upon his arrival in Florida, on January 19, 2002, Millan claims that around the surgical site he was exhibiting a terrible scab, which began to pus, alarming the plaintiffs. (Id.) Numerous phone calls were placed by the plaintiffs to LaPorta’s office on January 21, 24 and February 5, 6, 11 and 12, 2002, concerning George’s discomfort and wound care. (Id. at ¶25.) It is further alleged that the only communication Dr. LaPorta had with plaintiff George Millan took place on February 6, 2002. (Id. at ¶27; see defendant’s exhibit “A” to preliminary objections.)

Upon the plaintiff’s arrival to Florida, George Millan sought the medical care of Dr. Tinsley. The plaintiffs assert that the requests made by the Florida medical care provider, mainly Tinsley, to the defendants for George’s medical records, reports, and any other information to help in the assistance of plaintiff’s condition were ignored. It is this ignorance coupled with defendant’s failure to render appropriate medical, follow-up care that the plaintiffs report as the defendants’ negligence and carelessness that has allegedly caused George Millan’s post surgery complications. (Id. at f30(a) through 30(qq).) It is asserted that by Dr. LaPorta/defendants’ negligence, the injuries allegedly sustained by the plaintiffs include pain, limitations and restrictions, medical expenses incurred, mental anguish, deterioration of health and personal condition including shortness of lifespan, scarring and skin grafting, amongst other grievances. (See complaint, ¶30, subparagraphs (a) through (s).)

Presently, defendants Dr. LaPorta and LaPorta and Associates PC come before the court with preliminary objections to the plaintiffs’ complaint, two in the form of demurrers and the third as a motion to strike for insufficient specificity of the pleading in paragraphs 30(p) and 30(qq). We shall discuss each objection individually below.

PRELIMINARY OBJECTIONS

The first preliminary objections we shall address are those made pursuant to Pa.R.C.P. 1028(a)(4) in the nature of a demurrer. As previously noted by the Superior Court of Pennsylvania, all material facts pleaded in the complaint, as well as all inferences reasonably deducible from those facts, are deemed admitted. Wilkinson v. The Housing Authority of the County of Cumberland, 854 A.2d 533 (Pa. Super. 2004); Theodore v. Delaware Valley School District, 575 Pa. 321, 333, 836 A.2d 76, 83 (2003). The demurrer may be granted only where, on application of this standard, it is apparent that plaintiff is not entitled to relief as a matter of law. Wilkinson, supra at 536. If doubt should arise as to whether the demurrer is proper, the demurrer should be overruled. Id. The question presented by a demurrer is whether, on the facts averred, the law states with certainty that no recovery is possible. Sclabassi v. Nationwide Mutual Fire Insurance Company, 789 A. 2d 699 (Pa. Super. 2001). Furthermore, it must be determined if the complaint sufficiently states a claim for relief under any theory of law. Mistick Inc. v. Northwestern National Casualty Company, 806 A.2d 39, 42 (Pa. Super. 2002), citing Ham v. Sulek, 422 Pa. Super. 615, 623, 620 A.2d 5, 9 (1993). The court is not to consider conclusions of law, opinions or argumentative allegations. Sexton v. PNC Bank, 792 A.2d 602 (Pa. Super. 2002). Rather, the court’s review for preliminary objection purposes is limited to the contents of the complaint. In re Adoption of S.P.T., 783 A.2d 779 (Pa. Super. 2001). “Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief.” Hykes v. Hughes, 835 A.2d 382, 383 (Pa. Super. 2003); Swisher v. Pitz, 868 A.2d 1228 (Pa. Super. 2005); Lovelace v. Pennsylvania Property and Casualty Insurance Guaranty Association, 874 A.2d 661 (Pa. Super 2005).

When a defendant avers that a complaint fails to state a cause of action upon which relief may be granted, he must provide the court with specific grounds as to why the complaint in fact fails to state a claim upon which relief may be granted. Flynn Company v. Peerless Door & Glass Inc., 2002 WL 1018937, 2 (Pa.Com.Pl.); see also, Stewart v. Pennsylvania Board of Probation & Parole, 714 A.2d 502, 504 (Pa. Commw. 1998). “All preliminary objections... shall state specifically the grounds relied upon ...” Pa.R.C.P. 1028(b); see also, Flynn, supra; DelConte v. Stefonick, 268 Pa. Super. 572, 577 n.2, 408 A.2d 1151, 1153 n.2 (1979).

Improper Service of Writ of Summons

The defendants object to plaintiff’s service of process as untimely pursuant to Pa.R.C.P. 401(a) and assert that the applicable statute of limitations for the plaintiff’s claims had expired by the time the writ was reissued by the Lackawanna County Judicial Clerk of Courts. The rule requires that original process be served within the Commonwealth within 30 days after the issuance of the writ or the filing of the complaint. See Pa.R.C.P. 401(a). Furthermore, if service is not made within the time prescribed by subsection (a) of this rule, which is 30 days, upon praecipe and presentation of the original process upon the prothonotary, the validity of the writ may be continued by reissuance, accomplished by the prothonotary writing “reissued” on the writ. See Pa.R.C.P. 401(b)(1).

Here, the plaintiffs filed their praecipe to issue a writ of summons originally on November 26,2003, which was issued by the prothonotary the same day. The praecipe to reissue a writ of summons was filed on December 31,2003 and said writ was reissued the same day. It is the defendants’ argument that since the plaintiffs failed to file a praecipe upon the prothonotary for reissuance of the writ of summons by December 26,2003, exactly 30 days after the issuance of the original writ of summons, the plaintiffs have missed the two-year statute of limitations period to file a medical malpractice claim pursuant to 42 Pa.C.S. §5524(2). Although the defendants are correct that there is a two-year statute of limitations to bring a claim for medical malpractice, the tolling date is the date of the injury, more specifically, the date that the injury is discovered, not the date of the operation.

As recognized by the Superior Court in Stein v. Richardson, 302 Pa. Super. 124, 448 A.2d 558 (1982), the “discovery rule” is applicable to medical malpractice cases, obligating the plaintiff to institute his action within two years of the date of discovery of the injury or harm or within two years that the injury or harm should have been discovered. The Supreme Court analyzed the language of the statute of limitations and explained that the suit must be “brought within two years from the time when the injury was done.’’’’ Ayers v. Morgan, 397 Pa. 282, 289-90, 154 A.2d 788, 792 (1959). See also, Stein v. Richardson, 302 Pa. Super. 124, 448 A.2d 558 (1982). This has been interpreted to mean that the statute of limitations in a personal injury, medical malpractice action, does not commence to run until the injured plaintiff becomes aware or reasonably should be aware of the injury/harm suffered. Prince v. Trustees of University of Pennsylvania, 282 F. Supp. 832, 840-41 (E.D. Pa. 1968). The result of the “discovery rule” is that it “delays the accrual of the cause of action from the time of the defendant’s negligent conduct to a time when the injury caused by that conduct becomes known or knowable.” Stein, supra at 134, 448 A.2d at 563.

In regard to the matter before us, the plaintiffs’ complaint is the tool whereby they set forth their medical malpractice/negligence claim specifically for failure to provide adequate post operative care. The claim asserted therein is clearly not based upon negligence in performing the surgery. The injuries asserted that derived from the alleged inadequate, postoperative care includes complications from infection of the wound, pain, discomfort, limitations and restrictions in mobility of the right ankle, as well as other allegations. (See complaint ¶¶29-31.) This alleged harm and pain was not experienced by the plaintiff until January 17, 2002. {Id. at ¶22.) Therefore, pursuant to the “discovery rule,” the plaintiff’s injury occurred on January 17, 2002, therefore causing the statute of limitations to run from that date. Thus, the plaintiffs are not barred by the statute of limitations. We find the defendants’ argument that the plaintiffs’ cause of action is time-barred due to untimely service of the writ of summons on December 31,2003 to be a meritless argument. The service of the writ of summons after reissuance was merely five days after the 30-day restriction. We find that the Defendants have not been prejudiced by this five-day delay. The plaintiffs have acted within the applicable statute of limitations, which is two years.

We also find that the defendants’ argument that the present matter is time-barred to be meritless pursuant to several additional procedural rules. Pa.R.C.P. 1007 provides in pertinent part that “an action may be commenced with the prothonotary by (1) a praecipe for a writ of summons.” Additionally, as established in Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976) and its progeny, Pa.R.C.P. 1009(a) provides that a writ shall be served within 30 days after issuance or filing and pursuant to Pa.R.C.P. 1010(a), the writ may be reissued at any time after the original issuance during a period equivalent to the permitted applicable statute of limitations of the action. (citations omitted) Clearly in the present matter, the plaintiffs have acted within the applicable statute of limitations by filing the praecipe to reissue the writ on December 31,2003,35 days after commencement of the action.

Additionally, Pa.R.C.P. 1030 requires that all affirmative defenses, including statute of limitations, shall be pled as a responsive pleading under the heading “new matter.” We therefore conclude the defendants’ argument to be defective both legally and procedurally. The preliminary objection in the nature of a demurrer for improper service of process is therefore overruled.

Failure To State a Claim Upon Which Relief May Be Granted

“Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint.” Hykes v. Hughes, 835 A.2d 382 (Pa. Super. 2003); citing White v. PennDOT, 738 A.2d 27, 31 (Pa. Commw. 1999).When a defendant avers that a complaint fails to state a cause of action upon which relief may be granted, he must provide the court with specific grounds as to why the complaint in fact fails to state a claim upon which relief may be granted. Flynn Company v. Peerless Door & Glass Inc., 2002 WL 1018937, 2 (Pa.Com.PL); see also, Stewart v. Pennsylvania Board of Probation & Parole, 714 A.2d 502, 504 (Pa. Commw. 1998). Here the plaintiffs assert a negligence claim against a medical professional, Dr. LaPorta, and a professional corporation, LaPorta and Associates PC, based upon failure to provide sufficient postoperative care in regard to plaintiff’s total right ankle arthroplasty.

Generally, negligence is not to be presumed in a medical malpractice action. Jones v. Harrisburg Polyclinic Hospital, 496 Pa. 465, 437 A.2d 1134 (1981). To sustain a medical malpractice action, the plaintiff must establish a prima facie case by proving four factors: (1) the physician owed a duty to the patient; (2) the physician breached that duty; (3) the breach of the duty was the proximate cause of, or a substantial factor in bringing about the harm suffered; and (4) the damages suffered by the patient were a direct result of that harm. Yee v. Roberts, 878 A.2d 906, 912 (Pa. Super. 2005); Rachlin v. Edmison, 813 A.2d 862, 868 (Pa. Super. 2002). (citations omitted) It is established that in any negligence action, the plaintiff must state the known duty; as in a medical malpractice action, the plaintiff must display the duty owed by the physician to the plaintiff/patient. Hightower-Warren v. Silk, 548 Pa. 459, 698 A.2d 52 (1997).

Irregardless of the assertions set forth in the defendants’ preliminary objections concerning the defendants’ need for Millan’s written and signed authorization, the plaintiffs have not established a prima facie case against the defendants. A key element of medical negligence is missing from the plaintiffs’ complaint, mainly, there is no known duty stated in the complaint, nor any statute commanding that the physician perform a duty. The complaint describes a number of failures on the part of the defendants, Dr. LaPorta and LaPorta and Associates Inc. The averments of the complaint establish that LaPorta and his offices provided postoperative care to the plaintiff from the date of the surgery, November 26, 2001, through to the date of the scheduled trip to Florida, January 17,2002. The averments include allegations that the defendants failed to test, inspect, treat or otherwise provide medical care, or provide information regarding inspection to the plaintiff following the surgery of November 23, 2001. (See complaint, ^(30)(m)-(q).) The averments made in regard to the time period the plaintiffs were in Florida establish that defendant LaPorta failed to have contact with the plaintiff while in Florida. (See complaint, ^(30)(x)-(ee).) Nowhere in the complaint do the plaintiffs indicate a law or statute of this Commonwealth which establishes a duty required of the defendants. (See complaint.)

We find that the plaintiffs have not established the prima facie elements for a medical malpractice action given the allegations of the complaint. The defendants’ preliminary objections in the nature of a demurrer for failure to state a claim upon which relief can be granted is granted, rendering the remaining preliminary objection moot at this time. An appropriate order follows.

ORDER

And now, to wit, December 30, 2005, upon consideration of defendants’ preliminary objections and the verbal and written arguments of counsel, and in accordance with the preceding memorandum, it is hereby ordered and decreed:

(1) Defendants’, Guido LaPorta DPM, MS and LaPorta and Associates PC, preliminary objection in the nature of a demurrer for improper service of process is denied.

(2) Defendants’ preliminary objection in the nature of a demurrer for failure to state a claim upon which relief can be granted, granted.

(3) Plaintiffs are given 30 days to amend the complaint to include allegations of a duty of postoperative care, otherwise the matter shall be dismissed in its entirety.


author: GEPHART, Member,

text:
    Office of Disciplinary Counsel v. Bargeron
    Disciplinary Board Docket no. 130 D.B. 2005.

      September 14, 2005
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

GEPHART, Member,

RECOMMENDATION OF THREE-MEMBER PANEL OF THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA

The three-member panel of the Disciplinary Board of the Supreme Court of Pennsylvania, consisting of Board Members Smith Barton Gephart, Marvin J. Rudnitsky and William A. Pietragallo, has reviewed the joint petition in support of discipline on consent filed in the above-captioned matter on August 26,2005.

The panel approves the joint petition consenting to a three-year suspension and recommends to the Supreme Court of Pennsylvania that the attached petition be granted.

The panel further recommends that any necessary expenses incurred in the investigation and prosecution of this matter shall be paid by the respondent-attorney as a condition to the grant of the petition.

JOINT PETITION IN SUPPORT OF DISCIPLINE ON CONSENT PURSUANT TO Pa.R.D.E. 215(e)

Petitioner, the Office of Disciplinary Counsel by Paul J. Killion, Chief Disciplinary Counsel, and Harold E. Ciampoli Jr., Disciplinary Counsel and respondent, David Louis Bargeron, respectfully petition the Disciplinary Board in support of discipline on consent, pursuant to Pennsylvania Rule of Disciplinary Enforcement 215(d), and in support thereof state:

(1) ODC, whose principal office is situated at Suite 1400,200 North Third Street, Harrisburg, Pennsylvania, is invested, pursuant to Pa.R.D.E. 207, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid Enforcement Rules.

(2) Respondent, David Louis Bargeron, was born on January 14, 1966, and was admitted to practice law in the Commonwealth on December 5, 1994. Respondent is on active status and his last registered address is 1903 W. Broad Street, Bethlehem PA, 18018-3209. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

SPECIFIC FACTUAL ALLEGATIONS ADMITTED

(3) Respondent’s affidavit stating, inter alia, his consent to the recommended discipline is attached hereto as exhibit A.

(4) On November 2, 2000, Latif Hazim:

(a) Sustained personal injuries arising from an automobile accident in Allentown, PA.

(b) Was a passenger in an automobile operated by George Kassab.

(5) Mr. Hazim retained respondent to represent him in any cause of action arising from the November 2, 2000 automobile accident.

(6) Respondent advised Mr. Hazim his fee would be 25 percent of any sum recovered on Mr. Hazim’s behalf.

(7) At the time of the automobile accident, Mr. Kassab was insured by Nationwide Insurance Company.

(8) Between March 2002 and May 2002, Mr. Hazim telephoned respondent’s cell phone number on numerous occasions in an attempt to ascertain the status of his case.

(9) In September or October 2002:

(a) Respondent advised Mr. Hazim that he would call him in about two weeks to claim his settlement check.

(b) Mr. Hazim went to respondent’s office at 446 West Linden Street and signed a release relating to his personal injury claim.

(10) In the fall of2002, respondent entered into a settlement agreement with Nationwide regarding Mr. Hazim’s claim against Mr. Kassab for a sum of $15,000.

(11) In accordance with the settlement, Nationwide forwarded to respondent’s office check no. ******** jn the amount of $15,000 payable to Latif Hazim and the Law Office of David Bargeron, His Attorney.

(12) On or about October 30, 2002, respondent deposited or caused to be deposited check no. ******** into respondent’s bank account number ******* at Quakertown National Bank.

(13) After deducting fees and costs, respondent was required to hold, inviolate, $11,082.75 of Mr. Hazim’s funds on behalf of Mr. Hazim.

(14) After respondent deposited Mr. Hazim’s settlement check into respondent’s bank account number ******* at Quakertown National Bank, that account reached a negative balance on January 13,2003, and remained negative until closed by Quakertown National on February 27,2003.

(15) Account number ******* was not an IOLTA, trust or escrow account.

(16) The account into which respondent deposited Mr. Hazim’s check was not identified by respondent on respondent’s 2003-2004 or 2004-2005 Pennsylvania Attorney’s Annual Fee Form as an account in which respondent held funds of clients or third parties subject to PaJRJP.C. 1.15.

(17) On or about August 29, 2002, respondent submitted to Lawyer Assessment a 2002-2003 Pennsylvania Attorney’s Annual Fee Form in which respondent:

(a) Falsely represented that he held funds of a client or third party on May 1, 2002 in PNC IOLTA account

(b) Falsely certified that the information respondent provided was true and acknowledged that he was subject to discipline by the Supreme Court if any statements were false; and

(c) Signed and dated August 29,2002.

(18) On or about December 15,2003, respondent submitted to Lawyer Assessment a 2003-2004 Pennsylvania Attorney’s Annual Fee Form in which respondent:

(a) Falsely represented that he held funds of a client or third party on May 1,2003 or at any time after May 1, 2002 in PNC IOLTA account no. **********;

(b) Falsely certified that the information respondent provided was true and acknowledged that he was subject to discipline by the Supreme Court if any statements were false; and

(c) Signed and dated December 15, 2003.

(19) PNC IOLTA account no. ********** had been closed since August 31, 2001.

(20) By letter to Mr. Hazim dated March 31, 2003, respondent:

(a) Represented that respondent would forward a complete disbursement to him within 30 days; and

(b) Apologized for not responding more promptly to his telephone calls and messages.

(21) To date, respondent has not provided Mr. Hazim with an accounting of Mr. Hazim’s settlement funds that respondent received from Nationwide on Mr. HazinTs behalf.

(22) To date, respondent has not provided Mr. Hazim with any portion of the settlement funds arising from Mr. Hazim’s November 2,2000 automobile accident.

(23) Responded converted, commingled, misappropriated, misapplied or otherwise misused $11,082.75 of funds belonging to Mr. Hazim.

SPECIFIC RULES OF PROFESSIONAL CONDUCT AND RULES OF DISCIPLINARY ENFORCEMENT VIOLATED

(24) Respondent violated the following R.P.C.s and Pa.RJD.E.s:

(a) R.P.C. 1.4(a), which provides that a lawyer shall keep a client informed about the status of a matter and promptly comply with reasonable requests for information.

(b) R.RC. 1.4(b), which provides that a lawyer shall explain a matter to the extent necessary to permit the client to make informed decisions regarding the representation.

(c) R.RC. 1.5(c), which provides that upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

(d) R.P.C. 1.15(a), which provides that a lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property.

(e) R.P.C. 1.15(b), which provides that upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive, and upon request by the client or third person, shall promptly render a full accounting regarding such property.

(f) R.P.C. 8.4(b), which provides that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.

(g) R.P.C. 8.4(c), which provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

(h) Pa.R.D.E. 219(d)(iii), which provides that on or before July 1 of each year all persons required by this rule to pay an annual fee shall file with the Administrative Office a signed statement on the form prescribed by the Administrative Office in accordance with the following procedure: The name of each financial institution in this Commonwealth in which the attorney on May 1 of the current year, or at any time during the preceding 12 months, held funds of a client or a third person subject to Rule 1.15 of the Pennsylvania Rules of Professional Conduct. The statement shall include the name and account number for each account in which the lawyer holds such funds, and each IOLTA account shall be identified as such.

(i) via Pa.R.D.E. 203(b)(3), which provides that a wilful violation of any other provision of the Enforcement Rules, is grounds for discipline.

SPECIFIC RECOMMENDATION FOR DISCIPLINE THREE-YEAR SUSPENSION

Precedent establishes that unauthorized dealings with client funds by an attorney require some form of public discipline, which will vary depending upon the aggravating or mitigating circumstances. In re Anonymous No. 67 D.B. 92 (Harold E. Krauss), 27 D.&C.4th 202, 210 (1994). The following factors warrant a three-year suspension:

(1) Respondent converted $ 11,082.75 of client funds;

(2) No restitution has been paid to client despite the fact that Mr. Hazim has pursued respondent through civil litigation;

(3) Respondent has a history of discipline of an informal admonition administered on July 23,2003. Respondent violated R.RC. 1.16(a)(1), 8.4(d) and Pa.R.D.E. 217(b) by failing to properly withdraw from representing a client while on inactive status; and

(4) Respondent admits his misconduct, has expressed remorse and is exhibiting cooperation in submitting this joint petition.

See In re Anonymous No. 89 D.B. 2001 (Lawrence T. Foti), 69 D.&C.4th 278 (2003) (conversion of $33,000 of client funds in which restitution was made after commencement of disciplinary proceedings and failure to promptly deliver settlement proceeds to another client mitigated by Braun depression, sincere remorse, and lack of prior discipline resulted in a three-year suspension); In re Anonymous No. 132 D.B. 88 (Charles S. Morrow), 7 D.&C.4th 331 (1990) (conversion of approximately $4,300 in client funds for 16 months prior to restitution being made mitigated by respondent’s disciplinary history containing only an informal admonition in 33 years of practice, respondent’s cooperation with ODC, and respondent’s good reputation in the legal community and the public at large resulted in a two-year suspension); In re Anonymous No. 50 D.B. 87 (James C. Evans), 3 D.&C.4th 627 (1989) (deposit of a client’s $15,000 check into a personal non-segregated account and converting those funds for office and personal expenses mitigated by an unblemished disciplinary record for 40 years, full restitution including 7 percent interest on the principal, cooperation with ODC, and remorse resulted in a two-year suspension).

Wherefore, joint petitioners respectfully pray that your honorable board:

(a) Approve this petition; and

(b) File a recommendation for a three-year suspension and this petition with the Supreme Court of Pennsylvania.

VERIFICATION

The statements contained in the foregoing Joint Petition In Support of Discipline on Consent Discipline are true and correct to the best of my knowledge or information and belief and are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities.

CERTIFICATE OF SERVICE

I hereby certify that I am this day serving the foregoing document upon all parties of record in this proceeding in accordance with the requirements of204 Pa. Code §89.22 (relating to service by a participant).

First Class and Overnight Mail, as follows:

David L. Bargeron, Esquire, (610) 972-6610, P.O. Box 34, Allentown, PA 18105-0034

AFFIDAVIT UNDER RULE 215(d) Pa.R.D.E.

Commonwealth of Pennsylvania

County of Lehigh

David Louis Bargeron, being duly sworn according to law, deposes and hereby submits this affidavit consenting to the recommendation of a three-year suspension from the practice of law in the Commonwealth of Pennsylvania in conformity with Pa.R.D.E. 215(d) and further states as follows:

(1) He is an attorney admitted in the Commonwealth of Pennsylvania, having been admitted to the bar on or about December 5,1994.

(2) He desires to submit a joint petition in support of discipline on consent pursuant to Pa.R.D.E. 215(d).

(3) His consent is freely and voluntarily rendered; he is not being subjected to coercion or duress, and he is fully aware of the implications of submitting this affidavit.

(4) He is aware that there are presently pending investigations into allegations that he has been guilty of misconduct as set forth in the joint petition in support of discipline on consent of which this affidavit is attached hereto.

(5) He acknowledges that the material facts set forth in the joint petition are true.

(6) He submits the within affidavit because he knows that if charges predicated upon the matter under investígation were filed, or continued to be prosecuted in the pending proceeding, he could not successfully defend against them.

(8) He acknowledges that he is fully aware of his right to consult and employ counsel to represent him in the instant proceeding. He has not retained, consulted and acted upon the advice of counsel in connection with his decision to execute the within joint petition.

It is understood that the statements made herein are subject to the penalties of 18 Pa.C.S. §4904 (relating to unsworn falsification to authorities).

Signed this 22 day of August, 2005.

/s/David Louis Bargeron

David Louis Bargeron

ORDER

And now, October 24, 2005, upon consideration of the Recommendation of the three-member panel of the Disciplinary Board dated September 14, 2005, the joint petition in support of discipline on consent is hereby granted pursuant to Rule 215(g), Pa.R.D.E., and it is ordered that David Louis Bargeron is suspended on consent from the bar of this Commonwealth for a period of three years, and he shall comply with all the provisions of Rule 217, Pa.R.D.E.

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


author: CHESLOCK, J.,

text:
    Orwig v. Sakalas

      C.P. of Monroe County,
    no. 8561 Civil 2005.

      Michael C. Deschler, for plaintiff.

      Ronald Sakalas and Michelle Sakalas, pro se.
    May 26, 2006
   CHESLOCK, J.,

I. FINDINGS OF FACT

(1) Plaintiff, Gloria Orwig, is the record owner of real property known as 1103 Gum Road, Effort, Monroe County, Pennsylvania.

(2) On March 1, 2005, plaintiff, through her agent, Bruce Orwig, and defendants, Ronald Sakalas and Michelle Sakalas, entered into a written lease agreement for the premises at 1103 Gum Road, Effort, Monroe County, Pennsylvania for a term commencing March 1, 2005 and ending February 28, 2006.

(3) Defendants moved into the residence on February 20, 2006 with the agreement of plaintiff’s agent, Bruce Orwig, and continue to live at the residence.

(4) At the time the lease commenced, plaintiff’s agent, Bruce Orwig, indicated that the fireplace and certain other repairs would be made to the residence prior to the commencement of the term, March 1, 2005. However, defendants requested to move in early and the fireplace and several other repairs were not completed.

(5) The defendants continued to request that the fireplace in the residence be fixed to abate the cost of electric heat in the home.

(6) Several other repairs, including a separate electric breaker for the refrigerator, toilet repairs and an outlet for the stove were completed by plaintiff’s agents.

(7) Despite these repairs, several other repairs were requested to be completed by the defendants, including sewer and drainage problems in the home and garbage and debris which were on the premises at the time the lease commenced.

(8) The defendants became sporadic in their payment of rent, which pursuant to the lease was $675 per month, and plaintiff claims the amount of $5,120 due and owing at the time of the non-jury trial in this matter on May 22, 2006.

(9) Pursuant to the terms of the lease, the rent includes water, sewage, and garbage removal, in normal amounts.

(10) The defendants agree that something is due and owing to the plaintiff; however, due to the numerous repairs and the lack of garbage disposal, this amount should be reduced.

(11) On November 15,2005, the plaintiff commenced the instant action for full recovery of rent and possession of the premises.

II. DISCUSSION

The plaintiff has commenced this action seeking to recover rent and possession of the leased premises from defendants. Although defendants do not dispute that there is something due and owing to plaintiff for rent of the leased premises, they argue that the leased premises is in extreme disrepair and several items which plaintiff agreed to repair have not been completed. Several of the items of which defendants complained include a power cord which was not on the stove when they moved in and water piping under the kitchen sink was non-existent and, therefore, water ran on the floor when they turned on the spigot. Defendants claim that the plaintiff’s agent, Bruce Orwig, indicated that he would take care of the fireplace so that it could be used to heat the home. However, it was never cleaned or repaired so that the defendants could use it as a heating source.

It is clear that under Pennsylvania Law, leases are governed by contract law. Stonehedge Square Limited Partnership v. Movie Merchants Inc., 454 Pa. Super. 468, 685 A.2d 1019 (1996). Defendants argue that under the terms of the lease, garbage disposal was to be included in their rent payment. The plaintiff did not dispute this. Accordingly, we believe that the defendants are entitled to an abatement of their rent due to the failure of the plaintiff to provide garbage disposal service for the leased premises.

In addition, the defendants argue that the plaintiff’s agent’s oral promises to fix the fireplace caused their electric bill to be higher during the winter months for heating and that their use of the fireplace would have reduced the heating bill incurred for the leased premises. Pennsylvania courts have held that a tenant’s obligation to pay rent was mutually dependent on express covenants of a landlord to repair and that a material breach of a landlord’s covenant to repair relieved a tenant from his obligation to pay. Pugh v. Holmes, 486 Pa. 272, 284, 405 A.2d 897, 902 (1979). At trial, Guy Laurin testified on behalf of the defendants and indicated that he dealt with some problems at the leased premises including painting, fireplace, drainage and a bathroom leak. Mr. Laurin indicated that the fireplace was not in working order and that it was inconvenient for him to come up for constant repairs on the leased premises. We find Mr. Laurin’s testimony to be credible on this issue and the plaintiff did not present any testimony to refute Mr. Laurin or the defendants’ allegations that the fireplace was not in working order. We find defendants credible that plaintiff, through her agent, agreed to repair the fireplace to working order, which was never completed. Although the defendants would have us believe that the premises was uninhabitable, we find that the testimony at trial indicated that the defendants viewed the property prior to leasing the property and that they testified that although it was inconvenient, they were able to live at the leased premises. The implied warranty is designed to ensure that a landlord will provide facilities and services vital to life, health and safety of the tenant as used for premises for residential purposes. Pugh v. Holmes, 486 Pa. at 289, 405 A.2d at 905. In order to have a breach of implied warranty, it would be of the nature and the kind which would prevent the dwelling for its intended purposes to provide habitation for its dwellers.

III. CONCLUSIONS OF LAW

(1) The plaintiff has established by a preponderance of the evidence that the tenants failed to make rental payments for the leased premises or deliver possession of the leased premises upon request.

(2) The defendants have established that they are entitled to an abatement of the rent due to the failure of the plaintiff to provide garbage disposal services and to repair the fireplace pursuant to an oral agreement by plaintiff’s agents. The defendants are entitled to a two-month abatement of the rent, or $1,350.

(3) The plaintiff is entitled to possession of the leased premises.

ORDER

And now, May 26, 2006, it is ordered as follows:

(1) The court finds in favor of the plaintiff, Gloria Orwig, and against defendants, Ronald Sakalas and Michelle Sakalas, with respect to the ejectment for possession of the premises located at 1103 Gum Road, Effort, Monroe County, Pennsylvania.

(2) The court finds in favor of the defendants, Ronald Sakalas and Michelle Sakalas, for an abatement of rent in the amount of $ 1,350.

(3) The court finds in favor of the plaintiff for the amount of rent due under the terms of the lease in the amount of $3,770.

(4) Each party shall bear their own costs in this proceeding.


author: HANNA, J.,

text:
    Klingensmith v. Kuhn

      C.P. of Indiana County,
    no. 12237 C.D. 2005.

      Edward Klingensmith, pro se.

      Debra L. Yost for defendant Esther Kuhn.

      James Klingensmith, pro se.
    August 10, 2006
   HANNA, J.,

This matter comes before the court on the plaintiff’s complaint to establish paternity and for genetic testing and James Klingensmith’s motion to intervene. The court granted James Klingensmith’s motion to intervene during the hearing, which occurred on May 16, 2006. For the reasons set forth below, the court denies plaintiff’s complaint to establish paternity and for genetic testing.

FACTS AND PROCEDURAL HISTORY

On March 6,2003, Esther Kuhn gave birth to a daughter out of wedlock. James Klingensmith was present at the birth of the child and completed an acknowledgment of paternity declaration. Following the child’s birth, Indiana County Children and Youth Services arranged for the placement of the child with Earl and Mabel Klingensmith, James’ parents. Esther and James had visitation with the child.

In January 2004, Esther commenced custody litigation. Earl and Mabel Klingensmith along with James were defendants in this action. Following numerous court proceedings, including three days of hearings, this court granted primary physical custody of the child to Mabel and Earl Klingensmith. James, although incarcerated, participated in the proceedings.

On December 13,2005, Edward R. Klingensmith filed a “complaint to establish paternity and for genetic testing.” Edward and James are brothers and also sons of Mabel and Earl Klingensmith. Edward’s complaint averred that he may be the father of Esther’s daughter and agreed to pay the costs of paternity tests. A hearing was scheduled for May 16, 2006.

James filed a motion to intervene on March 31,2006, asserting estoppel based on his acknowledgement of paternity and other actions he participated in regarding the child, including custody and support. On April 4, 2006, this court scheduled the motion to be heard at the same time as Edward’s paternity complaint.

A hearing occurred on May 16, 2006. Present was Edward, who proceeded pro se. Edward is incarcerated at SCI Pine Grove, Indiana County, Pennsylvania. Esther was present and represented by counsel. James participated by telephone and also proceeded pro se. James is an inmate at SCI Albion.

Edward offered testimony from Esther, his mother, Mabel Klingensmith and himself. Esther testified that she and Edward had sexual relations, although she could not say whether the relations occurred during the likely period of conception, June 2002. Esther denied that Edward ever contacted her following the child’s birth. Esther stated that she did not have a sexual relationship with Edward and James at the same time. On rebuttal she provided additional testimony that it was her belief that she and Edward had a sexual relationship in March 2002.

Edward stated that he was incarcerated in either July or August of 2002. He was first incarcerated at SCI Smithon and was transferred to SCI Pine Grove about two years ago. Edward believes that he and Esther had unprotected sexual relations on at least two or three occasions in June or July 2002, when Esther resided with mutual friends. He learned of Esther’s pregnancy in July or August 2002.

Edward has not filed a putative father claim, or sent the child cards or gifts. He said he was unaware of the custody action filed by Esther and did not participate in this proceeding. In response to questions from James, he denied disavowing paternity of the child in correspondence to James’ girlfriend.

Edward’s contact with the child occurs during his calls to his parents when he inquires about her welfare and occasionally talks with her. He claims to have written a letter to the Indiana County Domestic Relations Section in December 2004. He received a response to this correspondence dated December 7,2004, from Kristi Hughes, Enforcement Officer. In this letter, Ms. Hughes acknowledged receipt of Edward’s letter of December 6, 2004, and told him that Esther had not filed a child support claim. She further told him that “[ujntil Ms. Kuhn files a claim, our office cannot assist you in determining paternity. If you wish to pursue this matter, you will need to contact a private attorney.”

Mabel Klingensmith was also called as a witness by Edward. Mrs. Klingensmith confirmed that Edward had made calls and asked about the child.

Edward explained that his main motivation for filing the paternity action was to find out if he is the child’s biological father. He offered to pay for the costs of genetic tests.

James testified on his own behalf. He noted that he acknowledged paternity after the child’s birth and that he has acted as her father. Edward cross-examined James on his ability to father a child due to injuries from a car accident. James responded by noting that he and the child share a genetic condition regarding their eye color.

DISCUSSION AND ANALYSIS

Pennsylvania Code title 23 §5104 creates a statutory right to obtain blood testing, but that right is not an absolute right. See C.T.D. v. N.E.E. and M.C.E., 439 Pa. Super. 58, 61, 653 A.2d 28, 30 (1995) (citing Donnelly v. Lindenmuth, 409 Pa. Super. 341, 344, 597 A.2d 1234, 1235 (1991)). The right to obtain paternity testing must be balanced against competing social and family interests. Id. Several cases have dealt with this issue and provided guidance for balancing these sometimes competing interests.

The C.T.D. v. N.E.E. and M. C.E. court analyzed a situation similar to the one before us today. In C.T.D., the mother acknowledged that there were three possible fathers for her pregnancy. She continued a relationship with one of those men and eventually married him. After the marriage, a new birth certificate was issued for the child with the husband’s name as the father. One year and nine months after the child’s birth (and after the mother had married), C.T.D. initiated a paternity action. C.T.D. was aware of the mother’s pregnancy and had letter and phone contact with her during this time. After the child’s birth, C.T.D. had no contact with the child and made no offer of financial support. The C. T.D. court held that C.T.D. ’s failure to act during the first two years of the child’s life may have estopped him from raising a claim of paternity. Id. at 63, 653 A.2d at 31. The case was remanded to the trial court to determine whether the child’s mother prevented C.T.D. from visiting the child or whether C.T.D. had made any attempt to establish paternity prior to initiating a paternity action one year and nine months after the child’s birth. The C.T.D. court stated that if the trial court found that C.T.D. had abandoned his potential paternal responsibilities during the first two years of the child’s life, C.T.D.’s request for blood testing should be denied. Id. at 64, 653 A.2d at 32. The two crucial factors that the C. T.D. court found outweighed C.T.D.’s right to blood testing were the length of time he waited to seek a paternity determination and the established familial relationship that would have been disrupted by a paternity test.

These two factors were again crucial in the court’s decision when a similar situation arose 10 years later in Buccieri v. Campagna, 889 A.2d 1220 (Pa. Super. 2005). In Buccieri, Salvatore Campagna sought paternity testing seven and one-half years after the birth of the child. At the time of the hearing, the mother of the child was engaged to a man who testified that he intended to adopt the child after the marriage. Although the mother acknowledged that Campagna was the likely biological father as he was the only man she was intimate with at the time of conception, the court denied Campagna’s petition for paternity testing. Id. at 1228. The mother had informed Campagna of her pregnancy, although at the time he stated he did not believe her. A number of years after the child’s birth, Campagna by chance encountered the mother and child in a park. He still allowed three to four additional years to pass before petitioning for paternity testing. Id. at 1222. The Buccieri court held that the need for constancy in the child’s life outweighed Campagna’s right to paternity testing. Because of Campagna’s delay and inactivity, during which time the mother formed a new family unit, he was estopped from obtaining paternity testing. Id. at 1228.

Between the time C.T.D. and Buccieri were decided, the Superior Court heard two cases in which paternity testing was granted: Strayer v. Ryan, 725 A.2d 785 (Pa. Super. 1999) and Snyder v. Wyland, 821 A.2d 611 (Pa. Super. 2003). In Strayer, only eight months elapsed between the time of birth and the date on which Strayer filed a petition for paternity testing. Although Strayer was not present at the birth, he accompanied the mother to early prenatal testing and had occasional phone contact with her during the pregnancy. After the birth of the child, Strayer offered financial support, but his offer was refused. When the child was two to three months of age, he sought visitation with the child. The mother refused to permit any visitation. Although the mother was in a new relationship at the time Strayer filed his petition, her paramour did not financially support the child and had never been held out as the child’s biological father. Strayer, 725 A.2d at 786. The Strayer court held that because Strayer was prompt in asserting his paternal interest and there was no family structure that would be disrupted, Strayer was entitled to paternity testing. Id. at 788.

Similarly, the Snyder court granted Snyder’s petition for paternity testing, relying on the fact that Snyder took immediate and active steps to be a part of his child’s life. In Snyder, the mother was 16 years old at the time of the birth, and Snyder was 17. The two had an ongoing relationship during the mother’s pregnancy and Snyder believed the child was his. Snyder and his mother were present at the birth of the child, although without Snyder’s knowledge the father was listed as “unknown” on the child’s birth certificate. Within six weeks of the child’s birth, the mother entered into a consent order granting her parents custody of the child. The mother’s parents refused Snyder access to their home and would not take his phone calls. However, on 10 occasions over the next two years, the mother allowed Snyder to see the child. Snyder bought Christmas presents for the child and offered financial support, although this support was refused. Snyder, 821 A.2d at 612. The Snyder court distinguished this case from the C. T.D. case by relying on the facts that Snyder took immediate steps to establish a relationship with the child and, although two years and nine months elapsed between the child’s birth and the time when Snyder filed a petition for paternity testing, Snyder was a minor at the time of the birth and unable to effectively assert his rights.

The facts of the case before us more closely resemble the C. T.D. and Buccieri cases, rather than the Strayer and Snyder cases. Esther and James maintained a relationship during Esther’s pregnancy. James acknowledged paternity at the time of birth and has acted as the child’s father. Although he is currently incarcerated, he has actively participated in an ongoing custody action. His incarceration has prevented much direct participation in the child’s life, but the child does have an established family unit and, as in C. T.D. and Buccieri, there is a societal interest in not disrupting that unit. Again as in C. T.D. and Buccieri, the putative father, Edward, has been slow in acting on his rights. Although Edward was incarcerated soon after the time of conception, he was aware of the pregnancy. Edward and James are brothers and the child currently lives with their parents. Although Edward has asked about the child when he speaks on the phone with his parents, he has never sent the child any cards or gifts or made any attempt to develop a paternal relationship with the child. Ele took no action until one year and nine months after the birth of the child, at which time he sent a letter to the Indiana County Domestic Relations Section with an inquiry about establishing paternity. He waited an additional year, until the child was two years and nine months old, to file a complaint for paternity. Unlike the Strayer and Snyder cases, Edward has never made an offer of financial support for the child. No testimony indicated that attempts on his part to establish a relationship with the child were frustrated by the mother or anyone else involved in caring for the child. Following the C.T.D. line of reasoning, waiting to act for two years and nine months of a child’s life demonstrates abandonment and estops a claim of paternity. Edward’s right to a paternity test is outweighed by the social interest in maintaining the child’s existing family unit and his actions in abandoning the child for almost three years.

During the testimony, Edward stated that he wants genetic tests to find out if he is the child’s biological father. His desire to know this fact is understandable. However, biological parenthood is a “fact,” while legal parenthood is a combined question of fact, law and public policy:

“As case law and statutes on establishment of paternity, on estoppel, on equitable adoption on reproductive technology and on adoption illustrate, the identity of the ‘legal father’ is determined by examining many different facts: has this man raised the child, held the child out as his own, does the child know him as ‘Daddy,’ is his name on the child’s birth certificate, has he agreed in a separation agreement or been ordered by a court to pay child support, has he interfered with the child’s relationship with his biological father, creating a reliance interest; was he married to or attempted to marry the child’s mother?” Testimony of Barbara Bennett-Woodhouse, Professor of Law, University of Pennsylvania Law School, 21(3) Pa. Fam. Law. 92 (1999).

Genetic tests could prove Edward’s paternity of the child, but not her legal parentage. A child’s legal father is not merely a matter of biology. It is also the person who accepted parental responsibility voluntarily and early, and who, through his consistent commitment to the child, meets her basic needs. Legal parenthood is not merely based on an act of procreation. It can also be earned by an adult who meets the child’s needs and is committed to the child. While Edward may want to know the “truth” of the child’s paternity, he has not earned the right, nor is, in this case, the “truth” in the child’s best interest.

Wherefore, the court makes the following order:

ORDER

And now, August 10, 2006, upon consideration of plaintiff’s complaint to establish paternity and for genetic testing and hearing thereon, it is hereby ordered and directed that plaintiff’s petition is denied.

      . The court derives these facts from the pleadings and the testimony of all the parties at the hearing.

      . See Susan McCloskey, on behalf of Esther Kuhn v. James Klingensmith, Mabel and Earl Klingensmith, 10143 CD 2004 (unpublished, Indiana County Court of Common Pleas), aff’d, no. 333 WDA 2005 (non-precedential decision).

      . 23 Pa.C.S. §5103(b) permits the filing of a claim of paternity with the Department of Public Welfare if the mother of the child fails or refuses to join in an acknowledgement of paternity. A filed claim of paternity entitles the putative father to notice of any proceeding brought to terminate parental rights to the child.

      . Edward submitted this letter to the court as evidence following the hearing. Esther’s counsel and James were given an opportunity to object to the submission of this document. No response was received from Esther’s attorney. James informed the court that he did not object to its admission.

      . The court acknowledges that Edward’s incarceration has made paternity establishment and assuming parental responsibility more challenging. Nonetheless, a parent’s responsibilities are not tolled during his incarceration. A reviewing court “must analyze whether the parent utilized those resources available while in prison to maintain a relationship with his child.” In re Adoption of Dale A. II and Wayne Allen B., 453 Pa. Super. 106, 117, 683 A.2d 297, 302 (1996).

      . For an excellent analysis of a child centered approach to paternity, see Barbara Bennett-Woodhouse, Hatching the Egg: A Child Centered Perspective on Parents Rights, 14 Cardozo L. Rev. 1746 (1993); see also, Dr. Seass, Horton Hatches The Egg (1940).