text:
    Cichocki v. Mazurek-Smith

      Jeffrey R. Boyd, for plaintiff.

      Mary C. Crocker, for defendant.
    July 9, 2009
   LASH, J.,

The matter before this court is the petition of plaintiff, Joseph J. Cichocki Jr. (Father), to modify the child custody order entered on November 15, 2004, concerning the parties’ minor child, Bradley Steven Mazurek, bom January 9, 1998. Trial was held on June 9,22 and 26,2009. We enter the following findings of fact:

I. FINDINGS OF FACT

(1) Plaintiff, Joseph J. Cichocki Jr. (Father), is an adult individual who currently resides at 1230 North Reading Avenue, Bechtelsville, Berks County, Pennsylvania 19505. Father resides in the Boyertown Area School District.

(2) Defendant, Kerri L. Mazurek-Smith (Mother), is an adult individual who currently resides at 529 West Second Street, Birdsboro, Berks County, Pennsylvania 19508. Mother resides in the Daniel Boone Area School District.

(3) The parties are the natural parents of a minor child, Bradley Steven Mazurek, born January 9, 1998.

(4) Father was remarried on May 2, 2002. He currently resides with his wife, Jennifer, the couple’s daughter, Hailey, age 6, and Jennifer’s two children, Nicholas, age 18, andKaitlyn, age 13.

(5) Mother has also remarried. She currently resides with her husband, Gregory Smith. The couple have two minor children, Madison, age 7, and Dylan, age 5.

(6) Father is employed at Controllex Service Corporation as a service technician, working full-time with flexible hours but generally weekdays from 7 a.m. to 3 p.m.

(7) On November 15,2004, after trial held, the Honorable Arthur E. Grim entered a memorandum opinion and order in disposition of the parties’ complaint in custody. Judge Grim ordered that the parties would share legal custody of the minor child, that Mother would have primary physical custody, and that Father would have partial custody such that during the school year, Father would have the minor child every other weekend from Fridays at 5 p.m. to Sundays at 6 p.m. and would also have the Thursday following Father’s weekend from 5 p.m. until the following Friday morning. During the summer months, the parties would alternate custody weekly with the transfer of the minor child to occur on Fridays at 7:30 p.m. This arrangement is generally honored by the parties, except that Father, by agreement, does not request the minor child for his Thursday, believing that it is less disruptive for the minor child if he remains at his Mother’s for all weekdays.

(8) Also contained in the custody order was a provision for the appointment of Edward Flanna D.S.W., as a mediator/arbitrator. Paragraph 14 states:

“(14) Unless otherwise agreed upon, Dr. Edward Flanna is appointed mediator/arbitrator to resolve any conflicts which arise between the parties regarding the minor children. If after mediation a resolution cannot be reached, the decision of the mediator/arbitrator is final except that each party shall always have recourse to petition the court to determine the child’s best interests in the event he or she believes that the arbitrator’s decision is clearly not in the child’s best interest. If the court finds that recourse to the court was unreasonable, then counsel fees shall be awarded against that party. Father shall pay 50 percent and Mother shall pay 50 percent of the cost of mediation/arbitration unless the mediator/arbitrator believes that a party was unreasonable, in which case the court may assess the costs against one or the other party in a different proportion.”

(9)Since the entry of the order, the parties have engaged Dr. Hanna in several mediation and arbitration sessions. The subject of one of the arbitrations concerned Father’s request that the minor child be tested and evaluated for possible attention deficit/hyperactivity disorder. The testing and evaluation was permitted to proceed.

(10)The minor child was diagnosed with Attention Deficit Hyperactive Disorder (ADHD) in 2005. He was prescribed Adderal X-R, 20 mgs., once a day. This condition also made the minor child eligible for an individualized education program (IEP) at school.

(11) The minor child also suffers from tic mannerisms and has been prescribed Orap for the condition.

(12) At all times, this minor child has matriculated at Daniel Boone. He recently completed the fifth grade at the Birdsboro Elementary School.

(13)In third grade, an IEP was established for the minor child at the Birdsboro Elementary School, which has been modified from time to time.

(14)Father raised concerns that Daniel Boone was not following the IEP program. He noted that the minor child has done poorly on the National Standardized tests. This was in contrast to his grades from Daniel Boone, which were always As and Bs. Father also complained that Daniel Boone refused to send the minor child’s records to him and that the minor child was missing assignments because the special education teacher was not properly following the IEP requiring that the teacher ensure that assignments were properly handed out and completed.

(15) At Father’s initiative, the minor child enrolled in the Sylvan Learning Center program. He was initially enrolled during first grade for the 2004-2005 year, then again in June of2008. At Sylvan, the minor child received individualized instruction, which resulted in him obtaining improved standardized test scores.

(16) The minor child also received counseling through Progressions from September of 2005 through April of 2008. He counseled with a behavior specialist consultant to address issues with his conduct, both at home and at school. According to the behavior specialist, the minor child responded and eventually services were no longer required.

(17) Because of Father’s concerns that Daniel Boone was not properly addressing the minor child’s needs, he initiated an arbitration proceeding resulting in a “decision” entered by Edward P. Hanna D.S.W., dated March 14, 2009, setting forth the following:

“The following arbitrated decision is pursuant to, and in accordance with, the standing custody order of the Honorable Arthur E. Grim, Judge, Berks County Family Court, signed November 16,2004, paragraph 14, to wit: ‘Unless otherwise agreed upon, Dr. Edward P. Hanna is appointed mediator/arbitrator to resolve any conflicts which arise between the parties regarding the minor children. If after mediation a resolution cannot be reached, the decision of the mediator/arbitrator is final... .’
“(1) As soon as it can be arranged, the parent’s son, [minor child] (d.o.b. 01/09/98) will transfer from his 5th grade class in Daniel Boone School District to a 5th grade class at Colebrookdale Elementary School in the Boyer-town School District, PA.
“(2) [Minor child] will attend 5th grade at the Colebrookdale Elementary School until the end of the current school year, June 2009.
“(3) Upon the transfer, [minor child’s] residence shall be recognized as that of his father, who is a taxpaying resident of the Boyertown School District.
“(4) Upon completion of his last day of school, June 2009, [minor child] will re-assume his residence with his mother and parents will follow the existing parenting plan for summer.
“(5) The parents will work together to support their son during this transitional period. Both will insure, within reason and capacity, frequent and consistent contact between Mother and son, including daily involvement after school, assistance with homework and participation in appointments and recreational activities.
“(6) This decision is made only for the welfare of [minor child], to insure that he has the opportunity to access educational supports responsive to his needs. This decision is temporary in nature and nothing about it should be construed as representing now, or in the future, any intent to change the standing custody order.”

(18) On or about May 12, 2009, Father filed the within petition to modify custody requesting a transfer of primary custody to him to enable the minor child to attend the Boyertown School District and upon Father’s belief that the minor child would prefer to reside with him.

(19) Because the primary issue in Father’s petition is the request to have the minor child change schools, which if granted, would optimally occur at the commencement of a school year, which in this case, would be late August 2009, this court granted the parties’ request for an expedited trial.

II. DISCUSSION

In making disposition, this court reviewed the testimony of the parties, the testimony and report of Edward P. Hanna D.S.W., the testimony of Father’s wife, Jennifer, Shelly Mieczkowski, director of special education at Daniel Boone, Tom Hankel, the principal of Daniel Boone Middle School, Debra Schlegel, the minor child’s special education teacher for fourth and fifth grade at Birdsboro Elementary School, Edward Myers, the behavior specialist consultant, Michael Sands, franchisee from Sylvan Learning Center, Lisa McCullough, school psychologist for Daniel Boone, Thomas Shugar Ed.D., the principal for the Colebrookdale Elementary School in the Boyertown Area School District, Karen Hippie, the director of special education for the elementary schools in the Boyertown Area School District, and the exhibits submitted by the parties.

Father’s decision to request a modification of the custody order arises from his perception that the education provided to the minor child by Daniel Boone has been insufficient. He raises several issues. First, Father points to the test scores obtained by the minor child on his standardized tests. This court was provided with test results from the “Iowa Test” for the minor child’s third, fourth, and fifth grade years. For third grade, the minor child received an overall national percentile rank of 23 percent. Although he was in third grade, his reading comprehension was scored 2.4, meaning he was reading at approximately the same level as a second grade student at approximately the midpoint of the school year. Similar scores were obtained for language and mathematics. For fourth grade, the minor child’s results were worse. His national percentile rank was 12 percent. His reading comprehension was 2.2, and the overall reading score was 2.9. His mathematics overall score was 2.7. In fact, most of the indicators assessed the minor child’s abilities at a second grade level. When the minor child tested in fifth grade, his scores did improve. His national percentile rank was up to 32 percent. His overall reading was 4.2 and his reading comprehension was 3.8. His overall language skill was in the 27 percentile at 3.8. His overall math score was 4.9, which was in the 44th percentile.

Father believes these test scores cannot be reconciled with the good grades he was receiving from the teachers at Daniel Boone, namely As and Bs. He perceives that the standardized test scores establish that the minor child has been struggling and that his grades are inflated, either through extra credit or because the teachers are “pushing through” the minor child into the next grade. In either event, Father believes that the grades are not a true barometer of the minor child’s work at school and that Daniel Boone is not committed to properly educating the minor child. Father attributes the improved standardized test scores during the minor child’s fifth grade year to the minor child’s involvement with Sylvan Learning Center.

Father’s second objection relates to his perceived inattentiveness of the special education teachers. Recently, the minor child had four assignments which were not completed on time. Father opines that this should never have happened because the IEP requires that the special education teacher provide the child with the assignment and make a notification in his assigmnent book, in writing, that he has received the assignment from the teacher and that he has completed the assignment. In essence, Father posits that the special education teacher is not following Daniel Boone’s own IEP. Secondly, Father believes that the school does not provide a learning support teacher for the minor child as often as is necessary. Third, the minor child has exhibited extreme stress during math tests, to the point of losing his composure.

Finally, Father objects to Daniel Boone’s apparent refusal to provide him with school records. He states he has requested the records on numerous occasions, but he is denied, based on Daniel Boone’s policy that only the parent with primary custody is entitled to receive the records, and it is up to the custodial parent to provide the records to the other parent. He complains that Mother does not forward any records to him, even though he continuously requests them from her.

Father believes that the minor child’s interests cannot be served by Daniel Boone and that he should be transferred to another school. As Father resides in the Boyer-town Area School District and is satisfied with their program, he requests a change in custody.

Father also raises concerns about Mother’s care. He believes that she is inattentive to the minor child’s needs. For example, the minor child was found to suffer from asthma and had a problem with his adenoids. These issues were not properly addressed by Mother or her physician and were not diagnosed until Father sought recourse through arbitration, then received permission to take the minor child to a doctor of his choice. Regarding the school issues, Mother initially opposed having the minor child evaluated and tested, and with the minor child receiving special education services and an IEP. If not for Father’s intervention, the minor child would not have been diagnosed with the ADHD condition or prescribed medication, and would have been assigned by Daniel Boone to the regular classes, where he would have had substantial difficulty.

Father does agree that if it were not for the problems with Daniel Boone, he would have no objection to continuing with the current custody schedule. He believes that the current schedule serves the minor child well and if the minor child could attend Boyertown School and remain in Mother’s care, that would be acceptable to him.

Mother seeks to retain primary custody, keeping the current schedule. She believes she provides a good home for the minor child. The minor child has a good relationship with his stepfather and half-siblings. She supports the minor child, attending his activities and supervising his school work. She is active with the IEP and other parent-teacher conferences. She makes sure the minor child’s homework is done appropriately. Regarding the minor child’s ADHD and behavioral issues, she oversees his needs, including his medications, previously taking him to the behavioral specialist, or to the Sylvan Learning Center, where she shares the costs with Father. While she initially opposed some of Father’s initiatives, she ultimately accepted the benefits, and has been an active participant.

According to her, the problems that surface stem from Father’s overbearing, authoritarian nature. She complains that Father makes up his mind on an issue and will not consult or discuss the matter with her. He puts pressure on her and the minor child to comply with his directives. She feels that she is unable to be heard. As a result, she resists, creating opposition between the parties. This opposition had to be resolved by the arbitrator on several occasions.

Regarding the school issue, she believes that Daniel Boone will provide adequate educational services for the minor child. If he remains at Daniel Boone, he will begin attending the middle school, who will oversee the IEP and make whatever adjustments are necessary. She also points out that she has been satisfied, at least since March of 2009 that the elementary school has done everything that is necessary to address the minor child’s needs.

Pertinent to the within matter is an e-mail sent from Mother to the school district, dated March 3, 2009. In that correspondence, Mother advised Daniel Boone that “I am unhappy with a few points in my son’s education and worry for my two other children .... I feel that [minor child] is being ‘pushed’ through and may not be getting everything he needs.” According to the e-mail, she perceived that the minor child is doing “C work” with weak sentence structure and vocabulary usage and wonders, like Father, whether the grades are inflated. Additionally, she believes that the teachers were permitting the minor child to manipulate them and that they would give him a “pass” rather than insist that all requirements be met. She is also concerned about the problems in communication between the school and Father. She requested a weekly communication with teachers, including work samples, and progress reports be completed. Secondly, bi-weekly ADHD monitoring reports should be filled out and sent to Father. She additionally requested a reading specialist evaluate the minor child to provide a comparison with the other children in his class, among other things.

After this e-mail was sent, Mother testified that Daniel Boone responded and that she is now satisfied that the minor child’s interests are being met.

The paramount concern in a child custody proceeding is the best interests of the child. Costello v. Costello, 446 Pa. Super. 371, 375, 666 A.2d 1096, 1098 (1995). A determination of what is in the best interests of a child is made on a case-by-case basis and must be premised upon consideration of all factors which legitimately have an effect upon a child’s physical, intellectual, moral and spiritual well-being. Alfred v. Braxton, 442 Pa. Super. 381, 385, 659 A.2d 1040, 1042 (1995).

Initially, we must address the scope of Dr. Hanna’s involvement as a mediator/arbitrator. As stated, the previous court order had appointed Dr. Hanna to “Resolve any conflicts which arise between the parties regarding the minor children.” The order goes on to provide that if a resolution cannot be reached after mediation, the decision of the mediator/arbitrator is final. Further, if a party believes that the decision is “clearly not in the child’s best interests,” then that party can file a petition with the court, however, if the court determines that recourse to the court was unreasonable, then counsel fees would be awarded against the moving party.

In fashioning this order, the previous trial court evidently attempted to try to find a workable solution to address the intractability of the parties on any custody issues that may arise. While this directive was issued in good faith and did provide a vehicle enabling the parties to work through their differences, the provision nevertheless cannot be enforced, particularly in a situation where the mediator/arbitrator is ruling that a change in physical custody shall take place. While the Supreme Court through the Rules of Procedure has permitted limited delegation of judicial authority to address ancillary custody matters, delegation is improper where the decisions involved would determine court issues for legal, physical or shared custody. Yates v. Yates, 963 A.2d 535, 540-41 (Pa. Super. 2008). Secondly, a court may not impede the right of a party to seek redress on custody issues by providing a sanction against a party who seeks court intervention and is unsuccessful. As stated by the Pennsylvania Superior Court, citing Kassam v. Kassam, 811 A.2d 1023, 1025 (Pa. Super. 2002):

“Child custody orders are temporary in nature and always subject to change if new circumstances affect the welfare of a child. The Commonwealth has a duty of paramount importance, to protect the child’s best interests and welfare. To that end, it may always entertain an application for modification and adjustment of custodial rights.”

Accordingly, paragraph 4 of the previous court’s order of November 15, 2004 must be stricken, Dr. Hanna’s decision of March 14,2009, and his testimony taken by this court shall not be considered in making disposition.

As stated, Father has framed the issue to be whether Daniel Boone is sufficiently addressing the minor child’s educational needs. However, in the context of the minor child’s best interests, a bigger issue is present, namely, the dynamics of the parties. Unfortunately, the parties have a long and difficult history, which includes distrust, name calling, and non-cooperation. It is apparent that the previous court was fed up with these parties, prompting the controversial arbitration provision in its order. Over four and one-half years have passed since the court entered that order, and the parties still do not seem to get it.

The primary dynamic here stems from Father’s hypercritical nature and Mother’s defensive responses. Father, as well as his wife, who supports him, are very adept at finding fault with Mother, with the Daniel Boone School District, and of others who do not agree with their position. Father’s method is to create tension in order to force his agenda. Mother’s response is to put up a wall and to become defensive. Mother’s refusal to respond creates an impasse. Were it not for the arbitrator’s availability, it is questionable whether anything productive would have gotten done on behalf of the minor child.

An example of this dynamic appears in an e-mail sent from Father’s wife to Mother’s husband, dated August 20, 2007, where she states, among other things: “Once you tell [Mother] she is wrong she stops listening----” While this statement correctly points out Mother’s unproductive and unhelpful response, it also illustrates the importance Father’s camp places on being “right” and pointing out that the other camp is wrong, an unfortunate and misghided perspective when interacting with another parent.

Another example is Mother’s e-mail to the school district of March 3, 2009. Her petition to Daniel Boone to make changes appears to be based more on her concern that she could lose custody if changes are not made, rather than for the best interests of the minor child. In essence, she is saying: “I agree with some of what Father is saying but not all of what he is saying, but if you don’t make the changes, I could very likely lose custody.”

If the goal is to be what is best for the minor child, it is imperative that the parties make every effort to work together, to establish a harmonious relationship. Even if the issues involving the minor child are ultimately resolved in an appropriate manner, when the journey is acrimonious, the minor child will suffer. This concern is magnified when the minor child suffers from ADHD, as is the case here.

Fortunately, the parties have agreed to the appointment of a parent-coordinator, which shall take place by separate order. Hopefully, the coordinator will be able to facilitate the interaction of the parties. Beyond that, this court believes that co-parenting counseling is imperative. The parties need to begin understanding the other’s point of view, which will hopefully soften their stance against each other and benefit the minor child.

The aforesaid acrimony spoils what would otherwise be appropriate parenting. Father has established that he is very concerned with the minor child’s issues, and invested in working to a solution. He pushed for an investigation to obtain the eventual ADHD diagnosis. He sought and obtained an independent solution for the educational issues through the Sylvan Learning Center, at substantial cost. If he would learn to use diplomacy to implement his ideas, rather than simply declaring war when he finds opposition, he would likely achieve the same results, but with much less aggravation.

Mother has also shown the capacity to be a good parent. As stated, Father has no issues generally with Mother’s care. Further, while initially reluctant, she has ultimately accepted Father’s ideas and has supported them, including providing financial support where necessary, such as with Sylvan Learning Center.

We turn then to Father’s issue with Daniel Boone. Daniel Boone’s IEP was first implemented for the minor child in third grade, after his ADHD diagnosis. The IEP proposes to provide a tailored individual program, best suited to meet the child’s needs. The plan is formed among several individuals, including the parents, designated persons from the school district, and others, such as a school psychologist, and in this case, the behavioral specialist. The hope is that a consensus can be reached among the individuals on the best method to provide a suitable education for the child.

Allowances within an IEP may include reading a test aloud rather than providing it in writing, providing extra time to work on assignments, providing individualized checks with the teachers to make certain assignments are understood and are completed, review for understanding, and other such methods. Over the course of time, the teachers observe what is needed and what isn’t, what works, and what doesn’t work. Adjustments are then made after discussion among the participants in the IEP.

Whenever possible, the individual instruction is administered conservatively. Caution must be taken because of the potential stigma that can attach, both in the child’s mind and in the mind of his peers, that the child is “not as smart” as his peers or is “special ed”. For that reason, both Daniel Boone and Boyertown favor an “inclusion” policy, providing the child with an IEP which is included in mainstream learning with the body of students whenever possible. A special education teacher will be provided when necessary, while at other times, an aide may be present in the main classroom. Daniel Boone identifies IEP students taking instruction in the main classroom with some support as “itinerate.”

This is consistent with the “least restrictive environment” concept required by the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1400 et seq. One commentator succinctly explains the concept:

“Under IDEA, an ‘appropriate education’ is a series of services described in an Individualized Education Plan, which is reasonably calculated to afford meaningful educational progress in a least restrictive environment. Oberti v. Board of Education, 995 F.2d 1204 (3d Cir. 1993); Polk v. Central Susquehanna Intermediate Unit, 53 F.2d 171 (3d Cir. 1988). In Oberti, the Third U.S. Circuit Court of Appeals emphasized the importance of placement in the least restrictive environment possible, i.e., programming with nondisabled peers with adequate supports to allow for meaningful progress. The Oberti court emphasized that IDEA’S insistence upon placement in the least restrictive environment is based upon a recognition that integration of individuals with disabilities into the mainstream of society and school environments produces social and behavioral benefits for children with disabilities, while allowing them to make meaningful academic progress through proper supports such as classroom aides and the intervention of specialists and therapists. Indeed, the mandates of a least restrictive environment are of such import that even if the child could realize greater academic progress in a more restrictive setting, the school district is required to offer placement in the least restrictive environment.

“In pursuit of least restrictive environment mandates, each public agency must ensure that children with disabilities are educated to the maximum extent appropriate with nondisabled children and that removal of children from the regular education environment should occur only if the nature and severity of the disability is such that education in regular classes with the use of supplementary aides and services cannot be achieved satisfactorily. 34 C.F.R. §300.114(a)(2).”

The difficulty in determining how extensive the IEP should be is one of the bones of contention between the parties. Mother has consistently been reluctant to agree to provide any more special education than what is absolutely necessary. Father, on the other hand, appears to be only concerned with providing whatever is necessary.

The Daniel Boone representatives observed the minor child’s issues to be primarily behavioral. He is prone to putting pressure on himself, attempting to achieve a perfect score. When he is confronted with a difficult assignment or test question, the pressure he puts on himself may cause him to become emotional. He is also affected by the length of the test and, particularly, a test which must be done within a certain time frame. In essence, he manifests difficulty in maintaining his concentration and becomes easily frustrated.

The IEP currently calls for the minor child to be included with the main group of students, with the “itinerant” designation. His special education teacher is called upon to prepare his assignments, particularly in reading and language skills, to make certain that he understands them, and to make certain that they are completed. He has received allowances, permitting test questions to be read aloud or for extensions of time. From Daniel Boone’s standpoint, the minor child is currently doing well.

Regarding Father’s complaints, his first concern that the minor child’s standard test scores are poor and are inconsistent with the grades he achieved at Daniel Boone is a bald assertion without any explanation from the evidence. In fact, the only explanation provided for the discrepancy between the test scores and the grades was that provided by the school psychologist. The psychologist testified plausibly that the minor child’s intelligence level was adequate and that the difficulty the minor child has with tests and assignments are behavioral, based on his inability to concentrate and his heightened frustration. The standardized test process can be unforgiving; if a child has difficulty completing tests on time, or retaining his concentration, he may score poorly, even though he has sufficient intelligence and knowledge to answer the questions correctly. According to the psychologist, when allowances are provided, the minor child can achieve well. Accordingly, she found no inconsistency between his test results and his grades.

The second concern was whether assignments were being completed on time and whether the special education teacher was properly checking the assignments. There were four assignments missed. These were not homework assignments, however, but were classroom assignments, unable to be completed by the minor child because of his difficulty with completing assignments on time. The special education teacher was well aware of the four assignments and made allowances. This was not an example of inattentiveness, but rather whether the teacher’s method was adequate under the circumstances.

There was also a related issue regarding whether assignments should be signed out in writing, otherwise, there is no written proof that the minor child received his assignment and understood same. The written assignment requirement was eventually incorporated into the IEP. Previously, the IEP was silent on such a requirement. The special education teacher testified that she would provide verbal confirmations, partially due to time constraints. She was satisfied that the minor child could understand the assignment and would complete it in a proper manner. This objection appears to be an objection after the fact, meaning that it was not discussed during IEP until after an issue arose. This is why meetings need to continue to be held so that the IEP can be adjusted where necessary. This also reflects the different perspectives of the parties and the school. Father wants a “hands on” approach, a type of micromanagement, leaving nothing to chance. Neither Mother nor the school district thought this was necessary until Father raised objections, then adjustments were made.

The level of support provided also reflects the different perspectives. Daniel Boone’s explanation that an aide is present in the classroom at certain times, and whenever necessary, appears to be sufficient. Again, while the primary goal is to provide the minor child with instruction that enables him to achieve, which must be individualized when necessary, there is also a secondary goal of maintaining normalcy in the classroom for the minor child whenever possible. Father has not established that the balance struck by Daniel Boone was improper.

On the third issue, we agree with Father that communication could have been better. There is no reason why Daniel Boone could not have provided the school records to Father as they did with Mother. The policy to provide only the custodial parent with the records may be economical for the school district, but can lead to a host of problems, particularly when parents of a child are not communicating. Here, it was clear to all involved that Father was very invested in the minor child’s educational concerns. Much of the problems and mistrust could have been avoided if Father had simply been provided with the school records. That being said, it appears that this issue is moot, as the Daniel Boone Middle School has a different policy, agreeing to provide each parent with the necessary school records, simply requiring each parent to fill out the appropriate forms.

This court is not satisfied that Father has established that Daniel Boone’s methods or implementation of those methods were insufficient. To warrant a change in custody solely for the purpose of switching school districts would require that the current school district is not acting in the minor child’s best interests. For reasons set forth, the only criticism that is supported by the evidence is the failure to provide school records to Father. While this is certainly a basis for Father’s frustration, we see no nexus between this problem and the sufficiency of the minor child’s education.

That being said, when this court reviews the totality of the circumstances, it appears that a change in custody is warranted. Throughout the minor child’s educational life, Father has responded promptly, providing feasible solutions for the special needs issues that were being uncovered. Mother, on the other hand, has been historically resistant to addressing these problems, requiring these important decisions to be made by the appointed arbitrator. We must stress that the issues raised were of fundamental importance. Where would the minor child be if he had not been properly diagnosed as ADHD, receiving treatment and medications, and being afforded access to an IEP, behavioral specialist, and additional aide through the Sylvan Learning Center? While some children may thrive in a laissez-faire parenting approach, such as Mother provided, this minor child needed intervention.

Secondly, we observe this minor child, who is diagnosed with behavioral problems and has historically been resistant to authority, is rapidly approaching the age of puberty. Mother has already experienced some issues with control which will likely increase when the minor child becomes a teenager. The behavioral specialist noted that the minor child is better behaved in Father’s household. We feel that Father is better equipped to provide the necessary proper structure. We do caution, however, that Father’s methods, as already stated, can be very demanding and heavy-handed. If he continues in this manner, his method could likewise be harmful to the minor child as it could create avoidance or confrontational responses in the minor child. It will be necessary for Father to learn to “work with” the minor child, not “make demands to” the minor child. We believe that it is easier for Father to adapt to become more conciliatory than it is for Mother to acquire the authoritative status she will need.

Third, the impact on the minor child from a change in custody would be minimal at this time. Currently, the parties share custody during the summer months on a week on, week off, basis, providing the minor child with the opportunity to spend substantial time with each parent and in each parent’s household. In essence, the change would only affect weeknights during the school year. Additionally, in either household, the minor child will be starting school in the fall in a new setting, with a new IEP.

Fourth, Mother’s greatest concern with a change in custody, that she would “lose her voice as a parent,” will be properly addressed. Mother believes that if Father would have primary custody that he would take full control of all aspects of the minor child’s life and would “shut her out.” However, assuming Father has this propensity, Mother’s concerns will be adequately addressed by the parent coordinator. Certainly, if there are any major issues, the court would become involved.

We enter the following order:

ORDER

And now, July 9, 2009, after trial held, custody of the parties’ minor child, Bradley Steven Mazurek, born January 9, 1998, shall be as follows:

(1) The parties shall share legal custody.

(2) The parties shall share physical custody of the minor child during the summer, with the parties to transfer custody every Friday at 7:30 p.m.

(3) During the school year, plaintiff, Joseph J. Cichocki Jr. (Father), shall have primary physical custody.

(4) During the school year, defendant, Kerri L. Mazurek-Smith (Mother), shall have partial custody as follows:

(A) On alternate weekends from Friday at 5 p.m. to Sunday evenings at 6 p.m.; and

(B) Every Tuesday commencing after school until Wednesday morning when Mother will, take the minor child to school, and at such other times as the parties shall agree.

(5) Each party is entitled to one week of vacation with the minor child during the summer. Each party shall select as his or her vacation week one of that party’s custodial weeks. Flowever, instead of ending on the following Friday, the party may retain custody until 7 p.m. on the following Sunday. Each party shall give the other party 60 days written notice as to his or her selection under this paragraph. Father’s selection has priority in even-numbered years; Mother’s selection has priority in odd-numbered years.

(6) Father shall provide transportation for the minor child to and from periods of partial physical custody unless the parties agree otherwise.

(7) The parties shall alternate custody of the minor child on the following holidays: Easter, Memorial Day, July Fourth, Labor Day, and Thanksgiving. Mother shall begin with Labor Day in 2009, and the parties shall alternate the holidays thereafter. Custody for the holidays shall be from 10 a.m. until 7 p.m. If a holiday falls on the Monday following Father’s weekend period of partial custody, Father may retain the minor child that Sunday night.

(8)Notwithstanding the foregoing, Mother shall have physical custody for Mother’s Day and Father shall have physical custody for Father’s Day each year. Custody shall be from 10 a.m. until 7 p.m.

(9)In odd-numbered calendar years, Mother shall have physical custody of the minor child from 12 noon on December 24 to 12 noon on December 25, and from 3 p.m. on December 31 to 6 p.m. the next day, January 1. Father shall have physical custody from 12 noon on December 25 to 6 p.m. on December 26. In even-numbered calendar years, Father shall have physical custody from 12 noon on December 24 to 12 noon on December 25, and from 3 p.m. on December 31 to 6 p.m. the next day, January 1. Mother shall have physical custody from 12 noon on December 25 to 6 p.m. on December 26.

(10)Both parties shall be listed on all school, medical, dental, activity or other records. Father shall provide Mother with a timely copy of all school calendars, notices of activities, parent-teacher conferences, and so forth.

(11)The parent having physical custody of the minor. child shall make reasonable efforts to maintain an open telephone line in his/her home from 7:30 p.m. until 7:50 p.m. each evening so that the minor child may place calls to, or receive calls from, the other parent. Neither party shall use caller I.D., call block, or any other device or service which prevents or restricts access to the minor child or the other parent. In the event the minor child is unavailable to receive calls during the designated time, the parent having custody shall use an answering machine or voicemail to record any messages from the other parent. The parent having physical custody shall inform the minor child of any missed calls and shall encourage the minor child to (1) regularly phone the other parent at the designated or other convenient time; and (2) promptly return any missed calls to the other parent. The minor child shall be permitted to speak at least 10 minutes with the other parent if the minor child so desires.

(12) Both parents shall provide each other with at least two weeks’ advance notice of non-emergency medical and dental appointments for the minor child to permit the other the opportunity to be present at such visits. In the event a parent is unable to be present at a visit, the participating party shall promptly communicate to the other party any health issues, illnesses, immunizations, treatments, medications, etc.

(13) Neither party shall disparage nor denigrate the other parent in the presence of the minor child, nor permit others to do so. Each parent will try to encourage the development of the parent-child relationship between the minor child and each parent.

(14) This court, by separate order, shall appoint a parent-coordinator, by agreement of the parties.

(15) The parties shall participate in co-parenting counseling with the costs to be shared. The parties shall choose a counselor and if an agreement cannot be reached, the counselor shall be appointed by the court.

(16) The attached appendix shall be made apart of the within order.

APPENDIX TO ORDER

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

(1) In addition to the foregoing rights, both parties shall also have the following rights with respect to the child:

(A) The right to reasonable telephone contact with the child when he or she is in the other parent’s custody.

(B) The right to be fully informed concerning the progress of the child in school and the child’s medical status, including the right to obtain the necessary information directly from the child’s school or medical practitioner; and

(C) The right to be informed in advance before any important decisions are made concerning the child and the opportunity to participate in those decisions.

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

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

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

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

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

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

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

(9) Weekend and evening visitation shall be subject to:

(A) Arrangements will be worked out beforehand between the parties without forcing the child to make choices and run the risk of parental displeasure. However, the child shall be consulted as to his or her schedule when appropriate.

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

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

(D) The party having custody of the child should prepare him or her both physically and mentally for the transfer of custody to the other party and have him or her available at the time and place mutually agreed upon.

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

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

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

      . The overall content of this e-mail is extremely distressing to this court. It can only be described as obnoxious and ignorant, conveying an attitude which substantially contributes to the disintegration of the relationship between the parties and harm to the minor child.

      . This is not the first time these parties are hearing this plea. In the BHRS treatment plan, (plaintiff’s exhibit 13), it states: “Communication and congruency between parties is necessary to create a single ‘united front’ while influencing behavioral change. Compromise between Mother and Father will be necessary in creating this ‘united front.’ Additionally, taking into account each other’s perspectives will be imperative if congruency is to be achieved. BSC feels that both Mother’s and Father’s viewpoints hold merit. BSC feels that this is not an issue of ‘right and wrong,’ but simply being at different points on the behavioral modification spectrum.... Quite simply, there are two different styles being imposed by each parent. This is why compromise and acceptance between the parties will be necessary in working toward behavioral change.”

      . Lukach Bradley, Jennifer M., “Staying in the Mainstream”, The Pennsylvania Lawyer, July/August 2009, volume 31, no. 4, pp. 39-41.


source: Caselaw Access Project

author: MINORA, J,

license: Public Domain

text:
    Costello v. Community Medical Center

      Edwin A. Abrahamsen, for plaintiff.

      Richard K. Hodges, for defendant.
    May 15, 2009
   MINORA, J,

I. INTRODUCTION

Currently before the court is defendant’s motion in limine to preclude certain documents from being introduced into evidence.

By way of background, this matter arises from allegations of breach of contract and unjust enrichment with regard to plaintiff providing defendant neurosurgical trauma-call coverage between the dates of July 1, 2003 and May 31, 2004. Allegedly, plaintiff was, at all times relevant, a member of the active medical staff of Community Medical Center.

On March 31,2000, plaintiff, defendant and Scranton Neuroscience Associates P.C. entered into an agreement concerning, among other things, plaintiff’s relocation to the Scranton, Pennsylvania area, becoming a member of the active medical staff of Community Medical Center and participating in the hospital’s neurosurgical trauma coverage schedule. A dispute arose between plaintiff and defendant concerning the terms, conditions and the obligations of the parties under this agreement. That dispute was resolved by way of a settlement agreement and mutual release entered into on July 1, 2003.

Subsequent to the entry of the July 1,2003 settlement agreement, plaintiff continued to provide neurosurgical trauma-call service to defendant from July 1, 2003 to May 31,2004. At the time of the July 1,2003 agreement, plaintiff allegedly voiced her intention to seek payment for providing continuing services and the hospital was receptive to the same.

According to plaintiff, despite indicating on numerous occasions that the hospital would make payments to the plaintiff for provision of neurosurgical call services, no payment was ever forthcoming.

Therefore, the instant lawsuit was commenced.

Defendant’s motion in limine seeks to preclude the following:

“(1) The March 31, 2000 agreement;
“(2) The July 1, 2003 settlement agreement;
“(3) Similar agreements between the defendant and another neurosurgeon, Dr. ShripathiP. Holla M.D. dated December 10, 2002, February 1, 2005 and June 30, 2006.”

The parties have agreed to submit this matter to binding arbitration tentatively scheduled for May 21, 2009. However, they have agreed to have the court rule on defendant’s motion in limine with our ruling being binding upon the arbitratrator.

As the matter has been fully briefed and/or argued, we will now so rule with this memorandum.

II. ISSUE

Should defendant’s motion in limine seeking to preclude from evidence the above referenced agreements be granted or denied?

III. DISCUSSION

Defendant has moved to preclude all of the above referenced agreements on the collective basis of Pa.RE. 408, 401, 402 and 403. Specifically, the defendant is contesting the admission of the July 1, 2003 settlement agreement on the basis that offers of compromise and release are not admissible to prove liability.

A close reading of the rule demonstrates the following: poses include proving a witness’ bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.” (emphasis added) See generally, Hooker v. State Farm-Fire and Casualty Company, 880 A.2d 70 (Pa. Commw. 2005).

“Rule 408. Compromise and offers to compromise
“(a) Prohibited uses. Evidence of the following is not admissible on behalf of any parly, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:
“(1) furnishing or offering or promising to furnish — or accepting or offering or promising to accept — a valuable consideration... or attempting to compromise the claim; and
“(2) conduct or statements made in compromise negotiations.
“(b) Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible pur-

The defendant’s reliance on Pa.R.E. 408 is misplaced. The settlement agreement of July 1,2003 involves only those claims made for services provided prior to July 1, 2003.

The instant claim is for services provided subsequent to July 1, 2003. Certainly, defendant is correct that if a claim was currently being made for services prior to July 1,2003, any settlement discussions, agreements etc. for that period would be inadmissible under Pa.R.E. 408. However, this instant claim is for services after July 1, 2003 and plaintiff alleged she made defendant aware of her intention to seek payment for trauma-call services after July 1, 2003 which is the subject of the instant suit.

Therefore, under Pa.R.E. 408, the July 1,2003 agreement can be used to explain the backdrop of this post July 1, 2003 claim but not as an admission of liability for the post July 1, 2003 claims. See Pa.R.E. 408 and Hooker v. State Farm Fire and Casualty Company, supra.

Defendant also contends that the evidence of the various agreements are irrelevant as defined by Pa.R.E. 401 and 402 and that their probative value is outweighed by the danger of unfair prejudice, confusion of issues or misleading the jury in violation of Pa.R.E. 403.

Pa.R.E. 401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

Moreover, Pa.R.E. 402 provides that “all relevant evidence is admissible, except as otherwise provided by law. Evidence that is not relevant is not admissible.”

Thus, while the general rule of the admissibility of relevant evidence is subject to various exceptions, the rule that irrelevant evidence is not admissible is categorical. Accordingly, the threshold inquiry with admission of evidence is whether the evidence is relevant. See Commonwealth v. Cook, 597 Pa. 572, 952 A.2d 594 (2008).

Counterbalanced against the above is Pa.R.E. 403 which states that: “[ajlthough relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time or needless presentation of cumulative evidence.”

The above balancing task is solely within the discretion of the trial court and will be disturbed only on a showing of abuse of discretion. See Commonwealth v. Parker, 882 A.2d 488 (Pa. Super. 2005), appeal granted, 587 Pa. 721, 899 A.2d 1123 (2006), affirmed on other grounds, 591 Pa. 526, 919 A.2d 943 (2007).

In applying our discretion, we agree with the plaintiff that the agreement between Dr. Costello, Scranton Neuroscience and Community Medical Center is relevant to provide a backdrop to the fact-finder of the relationship between the parties.

The settlement of the dispute arising from that agreement is only relevant to show that Dr. Costello allegedly continued to pursue her right to compensation for providing trauma-call services after July 1, 2003 and to explain to the fact-finder why the claim for payment in the instant case begins as of July 1, 2003.

We also agree with plaintiff that the hospital’s agreements with Dr. Holla may be relevant to show the value of services provided to the hospital for on-call services as well as dispute possible defense expert testimony that it is standard practice in the industry for doctors to provide trauma-call services without direct compensation from the hospital.

Certainly, the fact-finder cannot use the settlement agreement of July 1,2003 as evidence of liability for this instant case seeking payment for services rendered after July 1, 2003.

We are confident that the arbitrator can view the documents in question within the framework outlined in this memorandum.

Therefore, we will deny defendant’s motion in limine for preclusion, subject to the above directives. An appropriate order follows.

ORDER

And now to wit, May 15,2009, upon due consideration of defendant’s motion in limine to preclude the admission of the March 31,2000 agreement, the July 1,2003 settlement agreement and the various agreements with Dr. Holla, the written and/or verbal arguments of counsel, and in accordance with the foregoing memorandum, defendant’s motion in limine to preclude the admission of the above various documents is denied.

However, the fact-finder is precluded from construing the July 1,2003 settlement agreement as any admission of liability in the instant case.


author: RUEST, J.,

text:
    LaSalle Bank v. Lykens

      Courtenay R. Dunn, for plaintiff.

      DavidD. Engle, for defendants.
    July 14, 2009
   RUEST, J.,

Presently before the court is plaintiff’s motion for summary judgment. Oral argument was held on May 6, 2009. Both parties submitted briefs. Upon consideration of the briefs, arguments, and the relevant case law, the court determines plaintiff’s motion is denied.

FACTUAL BACKGROUND

On December 9,2002, defendants executed a mortgage in favor of Peoples Choice Home Loan Inc. The mortgage was recorded in the Office of the Recorder of Deeds of Centre County in mortgage book 1457, page 732. The mortgage was assigned to plaintiff, LaSalle Bank N.A., as trustee for structured asset investment loan trust series 2003-BC2 on December 16,2002, and recorded on August 13, 2004 in book 1728, page 49.

The real property subject to the mortgage is 612 Benjamin Court, State College, Centre County, Pennsylvania, 16803.

PROCEDURAL HISTORY

Plaintiff initiated this cause of action by filing a complaint on November 25,2008. Defendants filed an answer to the complaint and new matter on December 23,2008. Plaintiff filed a motion for summary judgment on March 20, 2009.

DISCUSSION

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

“Pennsylvania law provides that summary judgment may be granted only in those cases in which the record clearly shows that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. The moving party has the burden of proving that no genuine issues of material fact exist. In determining whether to grant summary judgment, the trial court must view the record in the light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Thus, summary judgment is proper only when the uncontroversial allegations in the pleadings, depositions, answers to interrogatories, admissions of record and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. In sum, only when the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment.” Barnish v. KWI Building Company, 916 A.2d 642, 645 (Pa. Super. 2007).

Pennsylvania Rule of Civil Procedure 1147(a)(5) requires that plaintiff set forth in the complaint “an itemized statement of the amount due.” Plaintiff maintains paragraph six of the complaint meets this requirement. Defendants maintain paragraph six contains insufficient detail to meet the requirements of Rule 1147(a)(5) and to allow defendants to properly respond.

The information provided and the facts averred in plaintiff’s complaint generally, and in the itemized amounts due paragraph specifically, are substantially the same as that provided by the plaintiff in Mellon Bank N.A. v. Joseph, 267 Pa. Super. 307, 406 A.2d 1055 (1979). In Mellon Bank, a defendant averred he was without knowledge or information sufficient to form a belief regarding the amount due on the mortgage. The Mellon court agreed, noting that “a mortgagor ... is not likely to know the exact amount... due.” Mellon, supra at 314, 470 A.2d at 1058. This court concurs with Judge Kistler in the Jenkins case: “Where a defendant avers in good faith that he is without knowledge or information sufficient to form a belief regarding the amount due, penalties and additional fees alleged by a mortgagee, the court will not find that a defendant possesses this knowledge by simply admitting that he is in default of the mortgage.” Wells Fargo Bank N.A. v. Jenkins (C.P. Centre 2009).

Plaintiff further argues defendants’ lack of specific, detailed responses to plaintiff’s specific averments of defaults constitutes an admission of the default and amounts due and owing upon the mortgage. New York Guardian Mortgage Corporation v. Dietzel, 362 Pa. Super. 426, 524 A.2d 951 (1987). Defendants’ denials are not, however, so overly broad or general as to not meet the requirements of Pa.R.C.P. 1029. Defendants specifically deny the claimed monthly escrow amount and the claimed interest amount, and generally deny the balance due because they claim they cannot calculate the correct balance based on the information provided by plaintiff in its filings.

“It is true that a defendant [cannot] rely on Rule 1029(c)(1) to excuse a failure to make a specific denial where it is clear that he must know whether a particular allegation is true or false.” Mellon Bank, supra at 314, 406 A.2d at 1058; Cercone v. Cercone, 254 Pa. Super. 381, 386 A.2d 1 (1978). In the case at bar, however, without amortization tables and other similar documentation, a mortgagor cannot know the exact amount of principal due. It is the plaintiff, not the defendants, who is in the best position to know the details of the mortgage, and this court will not require such knowledge of these defendants.

The burden is on the moving party to demonstrate that there are no genuine issues of material facts as to a necessary element of the cause of action or defense which could be established by additional discovery or expert reports. When a plaintiff seeks summary judgment and “there has been a Rule 1029(c) denial as to the amount owed . . . , the plaintiff must come forward with documentary support for the calculation of the amount which the plaintiff claims is due. In so doing, plaintiff can demonstrate that additional discovery would not establish a genuine issue as to the fact of what is owed to the lender. The failure to offer full, complete and self-explanatory documentation of the amounts claimed to be owing to the lender will almost always be fatal to the lender’s efforts to obtain a summary adjudication of its rights.” Bank of New York v. Pytlak (C.P. Allegheny 1999).

The court finds this analysis from Allegheny County persuasive. The court will not require a defendant in a mortgage foreclosure case to have knowledge beyond that which a defendant in such a case could rightly have. That individual mortgagors know exactly what they owe at any time, and that their payments are in the correct amounts, is more a matter of faith in the bank to which they make their payments than it is reflective of any actual personal knowledge.

Accordingly the following is entered:

ORDER

And now, July 14, 2009, plaintiff’s motion for summary judgment is denied.


author: KNISELY, J,

text:
    Commonwealth v. Wilkins

      Craig W. Stedman, district attorney, for Commonwealth.

      Barry Goldman, for defendant.
    May 14, 2009
   KNISELY, J,

Eric D. Wilkins has appealed to the Superior Court of Pennsylvania from the January 30, 2009 order denying motion for suppression and judgment of sentence imposed on March 26, 2009. This opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure. In his appeal, appellant contends that his vehicle was illegally stopped and the court should have suppressed evidence flowing from the stop. Specifically, appellant argues that the arresting police officer illegally stopped his vehicle because she failed to use her speedometer as speed timing device in accordance with 75 Pa. C.S. §3368.

BACKGROUND

On May 1, 2007, Officer Tatara, a Manor Township police officer, was on a side street waiting to turn left onto Millersville Road when she saw appellant’s vehicle traveling northbound on Millersville Road at what appeared to be a high rate of speed; the speed limit on that stretch of road is 35 miles per hour. The officer pulled out and followed the vehicle for approximately one-half mile. Using the police vehicle’s speedometer, the officer determined appellant’s speed to be approximately 54 miles per hour, at which point she initiated a stop on appellant’s vehicle. Upon making contact with appellant, Officer Tatara smelled a strong odor of alcohol coming from appellant and his vehicle. The officer asked appellant if he had been drinking and he answered that he had. He agreed to a preliminary breath test, which showed positive for alcohol. Appellant then failed two field sobriety tests. He was arrested and subsequently charged under Information 4132-2007 with two counts of driving under the influence of alcohol and one count of failure to obey traffic control devices.

On October 22, 2008, appellant filed a pretrial suppression motion alleging, in relevant part, that he was detained without sufficient reasonable suspicion or probable cause. The suppression hearing was held on January 29, 2009. On the same day, appellant filed another suppression motion and accompanying memorandum of law. He argued that controlling case law required suppression in the instant case. At the suppression hearing, the preliminary hearing transcript was admitted into evidence and made part of the record. This court denied appellant’s motion by order of January 30,2009. On March 26,2009, appellant proceeded to a stipulated bench trial wherein he stipulated to certain facts including the arresting officer’s testimony from the preliminary hearing. (N.T. trial and sentencing, 3/26/09, at 2-5). This court found appellant guilty of one count of driving under the influence, general impairment, and not guilty of the remaining two counts. He was sentenced to five days to six months in the Lancaster County Prison. His timely appeal followed.

DISCUSSION

Appellant argues that this court erred in denying suppression where the police officer failed to time his vehicle for 3/10 of a mile, pursuant to 75 Pa. C.S. §3368(a), and stopped his vehicle for a speeding violation under 75 Pa.C.S. §3111. He averred that Commonwealth v. Whitmyer, 542 Pa. 545, 668 A.2d 1113 (1995), and Commonwealth v. Masters, 737 A.2d 1229 (Pa. Super. 1999), control the initial stop of vehicles and require suppression of evidence in the instant case where officer did not use the speed timing device in accordance with 75 Pa.C.S. §3368 (requiring distance for vehicle timed by police officer’s speedometer no less than three-tenths of a mile). Defendant’s memorandum of law in support of his motion to suppress at 6-7. The Commonwealth responded that Whitmyer and Masters are irrelevant to the instant case. Commonwealth’s response to defendant’s motion at 2. The Commonwealth discussed the 2004 amendment of 75 Pa.C.S. §6308(b) (establishing reasonable suspicion as the standard for a vehicle stop) and argued that the cases defendant cited did not address the reasonable suspicion standard. This court agrees.

The cases cited by appellant were decided prior to the 2003 amendment of section 6308 when probable cause was the standard. Our Superior Court has acknowledged that the heightened probable cause standard of Whit myer has been superseded by statutory amendment. Commonwealth v. Fulton, 921 A.2d 1239, 1240 n.2 (Pa. Super. 2007); see also, Commonwealth v. Ulman, 902 A.2d 514, 518 (Pa. Super. 2006). This court’s review finds no case law addressing the Masters holding in light of the amended standard; however, as the current “reasonable suspicion” standard was not in effect when Masters was decided, this court finds Masters not controlling to the instant case.

The authority of a police officer to stop a vehicle for a suspected vehicle code violation is governed by 75 Pa.C.S. §6308(b). Commonwealth v. Cook, 865 A.2d 869, 873 (Pa. Super. 2004). This section was amended in 2003 to lower the “quantum of cause an officer must possess from ‘articulable and reasonable grounds’ to ‘reasonable suspicion.’” Id. at n.l. Under the previous version, “articulable and reasonable grounds” was equivalent to probable cause. Commonwealth v. Fulton, 921 A.2d 1239, 1240 n.2 (Pa. Super. 2007). The current version of the statute, which applies to this case, states:

“(b) Authority of police officer. — Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.” 75 Pa.C.S. §6308(b). (emphasis added)

Our Superior Court explained what is required under a “reasonable suspicion” standard:

“Under this standard, before an officer conducts an investigative detention, he or she must reasonably suspect that the individual is engaging in criminal conduct. Commonwealth v. Rogers, 578 Pa. 127, 849 A.2d 1185 (2004). On the other hand, ‘reasonable suspicion’ does not require that the activity in question is unquestionably criminal before an officer may investigate further. Id. at 1189. Courts are to give due weight to the specific reasonable inferences the police officer is entitled to draw from the facts in light of his or her experience. Commonwealth v. Cook, 558 Pa. 50, 735 A.2d 673, 676 (1999).” Ulman, 902 A.2d at 518.

Courts must consider the totality of the circumstances to determine whether an officer had reasonable suspicion. Fulton, 921 A.2d at 1243.

Here, Officer Tatara was waiting to turn left onto Millersville Road at 1:55 a.m. when she observed a vehicle traveling on Millersville Road at a “high rate of speed.” N.T. preliminary hearing, 8/29/07, at 7. She made this assessment based on her seven years of experience as well as her familiarity with the road, which she traveled most of her shift, every night. Id. at 10. She believed appellant’s vehicle was exceeding the posted speed limit of 35 mph. Id. at 13-14. She pulled out directly behind the vehicle, caught up to it, and followed it for approximately one-half mile. Id. She determined appellant was traveling 54 miles per hour using her speedometer and initiated a stop of the vehicle. Id. at 11. Based on her experience and observations, Officer Tatara reasonably concluded that a violation of the Motor Vehicle Code (MVA) was being committed. This reasonable suspicion is not sufficient under 75 Pa.C.S. §3111 for a conviction on the obedience to traffic control devices charge; however, that a conviction could not be sustained does not mean that Officer Tatara, under the circumstances to which she testified, did not reasonably believe that defendant was traveling at a “high rate of speed” in excess of the posted 35 mph speed limit and in violation of the MVA.

Accordingly, this court determined the stop was valid since it was based on reasonable suspicion. Denial of the suppression motion and judgment of sentence should be affirmed and appellant’s appeal denied.

      . 75 Pa.C.S. §3802(a), (b).

      . 75 Pa.C.S. §3111.

      . Of note, the Masters court used the term “reasonable suspicion” in its procedural history: “the court determined that because the summary violations were not established, the police officer did not stop the vehicle upon the requisite reasonable suspicion, warranting suppression of the evidence obtained as a result of the stop.” Masters, 737 A.2d at 1230. Although reasonable suspicion is used, this court believes the term was used interchangeably with probable cause and its equivalent, articulable and reasonable grounds, as the later terms were the requisite standard for a vehicle stop at the time Masters was decided. Also, the Masters court did not specifically address the police officer’s authority to stop a vehicle under section 6308. Rather, the Masters court determined suppression was not error based on its finding the requirements of section 3368, speed timing devices, not met; thus, a violation of section 3111, obedience to traffic control devices, could not be sustained. Id. at 1231. The holding seemingly equated the validity of the stop with the sustainability of a violation; however, such reasoning did not contemplate the lowered standard required to conduct a vehicle stop. See Martin v. PennDOT, 588 Pa. 429, 449, 905 A.2d 438, 450 (2006) (Eakin, J. concurring) (noting validity of stop never evaluated by ultimate conviction). Accordingly, Masters is not controlling in the present matter.


text:
    Medallis v. Northeast Land Development

      Brian Glass and Carlene Gallo, for plaintiffs.

      Joel M. Wolff, for defendants Northeast Land Development LLC, CJS Dev. Inc. and Tripp CDC Inc.

      Carl J. Poveromo, for defendant CIDC-1 LLC.

      Gerald J. Butler, for defendant City of Scranton.
    June 26, 2009
   MINORA, J,

I. INTRODUCTION

Currently before the court are the collective motions for post-trial relief filed by the defendant, Northeast Land Development LLC, CJS Dev. Inc., Tripp CDC Inc. (collectively the Northeast defendants), CIDC-1 LLC and the City of Scranton.

We will dispose of said collective motions for post-trial relief in this consolidated memorandum and order.

By way of background, this action stems from the plaintiffs’ claim that they are the owners of real property located at 1215 Philo Street, Scranton, Pennsylvania. According to their second amended complaint, the plaintiffs never experienced any flooding problems on their property prior to the construction of the Village of Tripp Park. However, plaintiffs contend that since the construction of the development began in or around 2001, high volumes of water, eroded material and debris have flowed toward and entered upon their property during rainstorm events. This continuous runoff problem has caused great distress as well as damage to the plaintiffs and allegedly constitutes a continuous trespass. Plaintiffs allege that the collective defendants have directly or indirectly altered the natural flow of surface waters in the course of construction activities by concentrating water through inadequate artificial channels thus causing discharge upon their property. Accordingly, plaintiffs sought to recover monetary damages, as well as injunctive relief, forcing defendants to correct the situation. Plaintiffs eventually withdrew their claim for damages.

The matter painstakingly progressed through the pretrial stages as other potential defendants were dismissed from the case. Specifically, the Scranton Redevelopment Authority is no longer a party to this action as per court order of discontinuance dated September 11, 2007.

Belated joinder attempts to bring in additional defendants Inter-Co Construction Managers Inc., Acker Associates Inc. and Digg-It Corporation were disallowed per the undersigned granting preliminary objections on the record just prior to the commencement of a non-jury trial against the remaining and above-captioned defendants.

After a two-day non-jury trial on April 28 and April 29,2008, the court issued a non-jury decision on December 4, 2008 as per Pa.R.C.P. 1038 which included the following non-jury verdict and injunctive relief.

“(l)(a) The developer defendants, Northeast Land Development LLC, CJS Development Inc., Tripp CDC Inc. and CIDC-1 LLC, their principals, shareholders, agents, employees, heirs, executors administrators successors and/or assigns are individually and collectively enjoined from any further development of the ‘Village of Tripp Park’ until the storm water issues subject to this lawsuit are addressed, abated and corrected so as to cause water to remain in their designated channels and not run off onto the land of private land owners such as plaintiffs.

“(b) In addition, the above broadly defined developer defendants at 1(a) will, at their own expense, develop and implement a proposed solution subject to review and comment by the plaintiffs’ experts, Cahill Associates as well as any independent expert the court may deem necessary.

“(c) Any stonn water solution must be verified and approved by all applicable governmental bodies.

“(d) The storm water solution shall be implemented immediately and with urgency and the parties shall inform the court of the progress of such solution within 90 days of this verdict.

“(e) The City of Scranton quite logically is enjoined from issuing any further subdivision and/or lot development permits of any nature for the continued development of the Village at Tripp Park by any person or entity until the storm water issues are addressed, abated corrected and the corrective systems’ effectiveness is verified.

“(f) The defendants will bear their own legal costs and additionally those of the plaintiff and the developer defendants shall exclusively bear the full costs of the court imposed ‘storm water solution.’”

The defendants all timely filed their motions for post-trial relief which we will subsequently detail below. Those motions have all been adequately briefed as well.

In the meantime, the parties reached a stipulation which modified section IV, 1(e) of the court’s non-jury decision of December 4, 2008. This stipulation became effective when the court approved the stipulation and order on May 22, 2009.

In essence, the stipulation and order of May 22,2009 allowed existing third party lot owners in the Village of Tripp Park to seek permits from the City of Scranton to conduct maintenance, replacement and/or repairs to their properties as well as defining a framework for improving their properties in a manner consistent with not producing additional storm water runoff. The details of that stipulation and order of May 22, 2009 are incorporated herein by reference.

In addition, said stipulation and order of May 22,2009 does not in any way prejudice the parties in presenting their current post-trial motions which we will now address. We note that only the issues briefed by the defendants will be considered on their merits. Any other issues raised in a motion for post-trial relief but not briefed are deemed waived. Moore v. City of Philadelphia, 131 Pa. Commw. 586, 596, 571 A.2d 518, 522-23 (1990).

II. THE POST-TRIAL MOTIONS OF DEFENDANT CIDC-1 LLC

A. CIDC-1 Claims the Trial Court Erred in Finding CIDC-1 Liable for Surface Water Damage to Plaintiffs ’ Property

This contention is without merit. The law in Pennsylvania is clear that a landowner may not alter the natural flow of surface water on his property by concentrating it in an artificial channel and discharging it upon the lower land of his neighbor even though no more water is thereby collected than would naturally have flowed upon the neighbor’s land in a diffused condition. A landowner who does so divert water in such a manner is liable even if he is not guilty of negligence and such diversion of water causes legal injury. Rau v. Wilden Acres Inc., 376 Pa. 493, 494-95, 103 A.2d 422, 423-24 (1954); Westbury Realty Corp. v. Lancaster Shopping Center Inc., 396 Pa. 383, 388, 152 A.2d 669, 672 (1959); Chamberlin v. Ciaffoni, 373 Pa. 430, 435, 96 A.2d 140, 143 (1953).

The court found by clear and convincing evidence that, although the developer defendants may have complied with minimal regulatory standards in their storm drainage plan, they have caused common-law storm water runoff injury to the plaintiffs in that the water runoff system at issue has unreasonably and unnecessarily altered and increased both the quantity and the velocity of storm water the plaintiffs sustain on their property during storm events.

B. CIDC-1 Claims the Trial Court Erred in Finding CIDC-1 Liable for Surface Water Damage Resulting From Floods So Extraordinary As To Constitute Vis Major

This contention is also without merit. While it is true that a landowner is not responsible for rainfall so heavy that it is considered to be an act of God (now known as “vis major” or “force of nature”) or great and extraordinary and out of the cause of nature. (See Shamnoski v. PG Energy, 579 Pa. 652, 858 A.2d 589 (2004).) CIDC-1 completely ignores the fact the plaintiffs presented evidence of other non-extraordinary rain events which impacted their property. In fact, plaintiffs’ expert testified that the plaintiffs suffered flooding during insignificant storm events of as little as a quarter inch of rainfall. (See Tr. 123:20-124:24.)

Therefore, the court was correct in finding that CIDC-1 failed to meet its burden of proving the affirmative defense of vis major. See Commonwealth ex rel. Corbett v. Griffin, 596 Pa. 549, 563, 946 A.2d 668, 676-77 (2008).

C. CIDC-1 Claims That the Trial Court Erred in Granting Plaintiffs ’Request For a Mandatory Injunction To Implement a “Storm Water Solution ”

This contention is also without merit. There is authority for the court to issue a final decree directing the abatement of a damaging water flow on the property of plaintiffs including the implementation of a storm water management system that is available to manage the excess water flow. See St. Andrew’s Evangelical Lutheran Church v. Lower Providence Township, 414 Pa. 40, 45, 198 A.2d 860, 862 (1964) and Magee v. Marshman, 20 D.&C.4th 184, 190-91 (Chester Cty. 1993).

As the plaintiffs proved at trial, and as the court found:

“The plaintiffs have established that their right to relief is clear, that an injunction is necessary to avoid further injury that cannot practically be compensated by damages and that the greater injury will result by refusing the injunction and allowing harmful flooding to continue to the advantage of further private development.” (Non-jury decision, p. 5.) See also, Harding v. Stickman, 823 A.2d 1110, 1111 (Pa. Commw. 2003).

D. CIDC-1 Claims That the Trial Court Erred in Ordering Defendants To Pay Plaintiffs’ Legal Costs

This contention is somewhat misplaced. What the court said was “the defendants will bear their own legal costs and those of the plaintiffs and the developer defendants shall exclusively bear the full costs of this court imposed ‘storm water solution.’” (See non-jury decision p. 10.)

Such “costs” are authorized by 42 Pa.C.S. §1726 and the unrepealed portions of the Pennsylvania Storm Water Management Act, 32 P.S. §680.15(b) (see Merlino v. Delaware County, 556 Pa. 422, 728 A.2d 949 (1999) upholding the imposition of “expenses”).

Our non-jury verdict in no way mentioned an award of attorneys’ fees and otherwise speaks for itself.

E. CIDC-1 Claims That the Trial Court Erred in Entering a Non-Jury Verdict and Injunctive Relief Against CIDC-1 and “Its Principals, Shareholder, Agents, Employees, Heirs, Executors Administrators, Successors and Assigns ”

The above assertion of defendant CIDC-1 may be based on a misunderstanding of the court’s wording. Obviously, the only named defendants in this case aré the business entities Northeast Land Development LLC, CJS Dev. Inc., Tripp CDC Inc., CIDC-1 LLC as well as the City of Scranton. No individuals are named or are a party to this action.

What the court simply meant was injunctive relief was granted against the above-referenced business entity developer defendants and from a practical standpoint any individuals who would purport to act on behalf of said developer business entity developer defendants.

This certainly does not violate the general rule that any action brought against the corporation or similar entities shall be prosecuted against the corporation in its corporate name. Pa.R.C.P. 2177; Anderson Equipment v. Huchber, 456 Pa. Super. 535, 540, 690 A.2d 1239, 1241 (1997).

Thus, the contention to defendant CIDC-1 that we are imposing a judgment against obviously un-named individuals is misplaced and without merit.

R Defendant CIDC-1 Contends That Plaintiffs ’Claims Are Time-Barred

This contention is without merit as the statute of limitations does not apply to a request for equitable relief. United National Insurance Co. v. J.H. Finance Refractories Co., 542 Pa. 432, 437, 668 A.2d 120, 123 (1995).

G. Defendant CIDC-1 Claims Again That Plaintiffs’ Claims Are Barred by the Equitable Defense of Laches

The application of the equitable doctrine of laches does not depend upon the fact that a certain definite time has elapsed since the cause of action accrued, but whether, under the circumstances of the particular case, the complaining party is guilty of a want of due diligence in failing to institute his action to another’s prejudice. The question of laches is factual and to be determined by an examination of the circumstances. See Patten v. Vose, 404 Pa. Super. 426, 590 A.2d 1307 (1991).

In the case at hand, the court found that the plaintiffs diligently and in vain brought their flooding problems to numerous governmental bodies and officials as well as the developer in this case and clearly are not guilty of laches. (See non-jury decision pp. 3, 7.)

Therefore, the assertion of CIDC-1 based on laches is without merit.

H. CIDC-1 Claims the Trial Court Should Enter Judgment for CIDC-1 and Against the City of Scranton Pursuant to Pa.R.C.P. 227(a)(2)

CIDC-1 claims that judgment should be entered on its cross-claim against the City of Scranton per Pa.R.C.P. 227(a)(2) on the basis that by virtue of the city approving the subdivision plans, its execution of the development agreement and its approval and acceptance of the infrastructure and improvements, the city has thus acquired sole ownership of the storm water drainage system for the Village of Tripp Park and has incorporated it into the city’s storm water network. Thus, CIDC-1 argues the city should be solely liable, or jointly and severally liable to plaintiffs, or liable over to CIDC-1, with regard to plaintiffs’ claim for increased water flow.

We agree that a purported acceptance of dedication can be expressed or implied. See Tobin v. Radnor Township Board of Commissioners, 142 Pa. Commw. 567, 580, 597 A.2d 1258, 1265 (1991); Lillo v. Moore, 704 A.2d 149 (Pa. Super. 1997).

However, it is the duty of a landowner to prove acceptance of a dedication by clear and convincing evidence. See Lillo v. Moore, supra and Swierbenski v. Dunmore Borough Council, 2006 WL 6031702 (court of common pleas trial court order per Judge Minora — 2006).

In the case at hand, CIDC-1 contends that one sentence at the end of the May 8, 2001 development agreement between the City of Scranton and CIDC-1 constitutes an offer to dedicate the proposed infrastructure to the city (i.e., “all infrastructure shall be dedicated to the city upon final completion and acceptance by the city engineer.”).

We agree with the city that on its face, the above sentence is not a present offer of acceptance. The sentence speaks to a future event after the work has been completed and accepted by the city engineer.

It indeed contemplates a future act of dedication. We agree it cannot be construed as an offer of dedication as of the date of execution. Moreover, there is no other evidence of record that there was an offer of dedication of the storm water infrastructure by CIDC-1 to the city.

There is no evidence that the city engineer accepted the storm water infrastructure as built. Nor is there any evidence of a deed of dedication and its acceptance by the mayor and city council.

A contention that the release by the city of CIDC-l’s letter of credit supports an implied acceptance is misplaced. The letter of credit introduced into evidence by the city lapsed on its one-year anniversary before the issues in this suit arose.

Lastly, the court correctly held that the storm water system as submitted and approved while meeting minimum regulatory standards caused a common-law excessive runoff injury to the plaintiff.

Since the city did not take ownership of the infrastructure from CIDC-1 through dedication, it cannot be liable as an owner.

Therefore, CIDC-1 ’s attempt to enter judgment on its cross-claim against the City of Scranton is without merit.

I. CIDC-1 Contends That a New Trial Is Warranted Because CIDC-1 Was Denied Its Due Process Rights When Certain Indispensable and Necessary Parties to the Lawsuit Including the SRA, Acker andDigg-It, Were Released and/or Dismissed From the Case Summarily and the Action Proceeded to Trial Prematurely Before the Pleadings Were Closed

A party is indispensable where its rights are so connected with the claims of the litigants that no decree can be made between them without impairing such rights. City of Philadelphia v. Commonwealth, 575 Pa. 542, 566, 838 A.2d 566, 581 (2003); Sprague v. Casey, 520 Pa. 38, 48, 550 A.2d 184, 189 (1988).

We first note that the Scranton Redevelopment Authority (SRA) is no longer a party to this action per court order of discontinuance dated September 11,2007 initiated by the plaintiffs.

Moreover, CIDC-1 has not demonstrated any actual impairment of the rights of the SRA, Acker and Digg-It other than mere conjecture. Since CIDC-1 has not demonstrated any violation of due process rights of absent parties, such parties are not indispensable. See Cry Inc. v. Mill Service Inc., 536 Pa. 462, 467-68, 640 A.2d 372, 375-76 (1994).

Any other claims or violations of due process by the court in dismissing Acker and Digg-It from the case are unfounded.

The defendants were on notice as early as September 12,2007 that a non-jury trial was scheduled to commence in this 2003 case on April 28,2008. Therefore, they had more than six months to assert claims or cross-claims against any parties they believed were jointly or severally liable for the claims that plaintiffs made against them.

As the court noted, if any one was being prejudiced at this point, it was the plaintiffs and we stated:

“This trial date was set a considerable period of time ago and they’re joining people with two weeks before trial. It makes absolutely no sense to me unless your goal was to get this matter continued which I’m not going to do because every time it rains, these people are getting flooded. It’s real simple.” (Tr. 17:18-18:1)

Since the judge sitting in this 2003 non-jury trial has wide discretion to control the pace and scheduling of the proceedings in an effort to minimize prejudice and manifest justice, we certainly acted properly in rejecting further delay tactics disguised under an umbrella of “due process.” See generally, L.B. Foster Co. v. Charles Car acciolo Steel & Metal Yard Inc., 777 A.2d 1090 (Pa. Super. 2001).

Therefore, CIDC-l’s motion for a new trial based on the above is denied.

III. THE POST-TRIAL MOTIONS OF DEFENDANTS NORTHEAST LAND DEVELOPMENT LLC, CJS DEV. INC. AND TRIPP CDC INC. (THE NORTHEAST DEFENDANTS)

The post-trial motions of the Northeast defendants are essentially a mirror image of those filed by CIDC-1.

Specifically, the Northeast defendants took issue with:

“(a) the court’s award of the costs of the storm water solution;
“(b) the court’s alleged piercing of the corporate veil; and
“(c) the alleged failure of the court to keep the Scranton Redevelopment Authority and Acker Associates Inc. in the case as indispensable parties.”

We have already addressed those issues in our analysis of the CIDC-1 post-trial motions and for the same reasons and with the same clarification we also deny the Northeast defendants’ post-trial motions.

IV. THE POST-TRIAL MOTIONS OF THE DEFENDANT, CITY OF SCRANTON

The city also objected to the imposition of costs for the storm water solution which we have previously addressed above. Likewise, the city’s post-trial motion on that issue is also denied.

The city also seemed to raise again the issue of governmental immunity in its post-trial motion but did not brief same. Therefore it is waived. See Moore v. Philadelphia, supra. Even if it was briefed, we also held in our earlier rulings that the Political Subdivision Torts Claim Act, 42 Pa.C.S. §8541 et seq. extends only to liability for damages and not certain types of injunctive relief. E-Z Parks Inc. v. Larson, 91 Pa. Commw. 600, 609, 498 A.2d 1364, 1369-70 (1985); Greco v. Hazleton City Authority, 721 A.2d 399, 402 (Pa. Commw. 1998).

Therefore, the city’s post-trial motions are denied in totality.

We will issue an appropriate final disposition.

ORDER AND FINAL JUDGMENT ON THE NON-JURY VERDICT

And now to wit, June 26,2009, upon due consideration of Defendants’ motions for post-trial relief and in accordance with the foregoing memorandum, said post-trial motions are denied.

In addition, final judgment is entered in accordance with the non-jury verdict and decision of December 4, 2008 as explained by our above memorandum and as modified by the stipulation and order of May 22, 2009 which modified section IV, 1(e) of said December 4,2008 non-jury decision.

      . Nor can the developers hide behind permits like those issued by the Department of Environmental Protection which state “nothing in this permit shall be construed to preclude the institution of any legal action or relieve the permittee or co-permittee from any responsibilities, liabilities or penalties established pursuant to any applicable state law ... see approval of coverage under the NPDES general permit for discharge of stormwater associated with construction activities (PAG 2 — plaintiffs’ motion for summary judgment, exhibit E page 8 of 12),

      . The development agreement provides in pertinent part:
      “All infrastructure shall be dedicated to the city upon final completion and acceptance of the city engineer.” (See CIDC-1 ’s exhibit no. 5, paragraph 1.)

      . We agree with plaintiffs that even though they discontinued their claim against the SRA, there was nothing preventing CIDC-1 or any of the other defendants from filing a joinder complaint against and asserting their own claims against the SRA.