source: Caselaw Access Project

author: PARISI, J,

license: Public Domain

text:
    Commonwealth v. Ortiz

      C. P. of Berks County,
    no. CP-06-CR-3993-2009.

      Alisa R. Hobart, for Commonwealth.

      Holly B. Feeney, for defendant.
    May 10, 2010
   PARISI, J,

On September 25, 2009, Walter Ortiz (defendant) was charged with persons not to possess/use/manufacture/control/sell/transfer firearms, firearms not to be carried without a license, possession with intent to deliver a controlled substance (cocaine, marijuana), possession of a controlled substance (cocaine), possession of a small amount of marijuana, and possession of drug paraphernalia and driving while operating privilege is suspended or revoked.

On October 15,2009, the defendant filed an omnibus pretrial motion, including a motion for suppression of evidence and motion for writ of habeas corpus as to all counts. A hearing was held on the defendant’s motion February 8, 2010. This court issued findings of fact and conclusions of law on March 5, 2010, granting the motion for suppression of evidence. This court did not rule upon the motion for writ of habeas corpus in accordance with Commonwealth v. Keller, 823 A.2d 1004 (Pa. Super. 2003).

On March 31, 2010, the Commonwealth filed a timely notice of appeal. The Commonwealth raises the following claims on appeal:

“(1) The trial court erred in suppressing evidence obtained during a lawful Terry frisk for weapons where police had reasonable suspicion to detain Ortiz pending an investigation into the status of an outstanding arrest warrant, and the furtive movements leading to this frisk were made during this detention.

“(2) The trial court erred in suppressing the evidence obtained following the lawful Terry frisk, i. e., the defendant’s statements to police and evidence recovered from the vehicle, as tainted by the initial illegality.

“(3) The trial court erred in suppressing evidence seized as a result of the search of the vehicle based upon the exceptions to the warrant requirement specified in Arizona v. Gant,_U.S._, 129 S.Ct. 1710, 173 L.Ed. 485 (2009).” Commonwealth’s concise statement of matters complained of on appeal, 4/20/2010.

FACTUAL FINDINGS

Officer Christopher Cortazzo testified that he is employed by the City of Reading Police Department as a uniform patrol officer and has been employed by the City of Reading Police Department for nine years. On August 23, 2009, Officer Cortazzo was working at approximately 6:15 A.M. At that time, Officer Cortazzo was on patrol in the area of Cedar Street, Reading, Berks County, Pennsylvania and was in full uniform including a badge of authority and firearm, and was traveling in a marked police car. It was daylight, sunny and warm.

Cedar Street is a one-way street. At that time, cars were parked on both sides of Cedar Street. Officer Cortazzo stated that since 2001, he has made numerous arrests for drug and gun offenses in that block and described it as “an open air drug market.”

Officer Cortazzo observed a blue Nissan Sentra legally parked on the west side of Cedar Street. Officer Cortazzo slowed his vehicle and observed the Nissan to contain three occupants. All three occupants were “slumped down” in their seats. Office Cortazzo parked his patrol car parallel to the Nissan; at one point, a door of the Nissan was opened and hit the patrol car.

Officer Cortazzo recognized all three of the occupants of the Nissan. The defendant was identified as the occupant of the driver’s seat. Officer Cortazzo cited the defendant in May of 2009 for driving with a suspended license and was aware of a scofflaw warrant for the defendant. However, Officer Cortazzo had last verified the warrant in late June or early July of 2009. The other occupants were Christopher Rodriguez and Wassou Rosa. Officer Cortazzo testified that occupants Rosa and Rodriguez both live in the block of Cedar Street where the Nissan was parked.

Officer Cortazzo stated he did not verify whether the defendant’s scofflaw warrant was still active prior to approaching the Nissan because it was not tactically sound. There was insufficient time and if he had verified the warrant, the defendant or the other occupants could flee. The occupants of the Nissan were moving around and Officer Cortazzo did not know what they were doing. Officer Cortazzo did intend to arrest the defendant pursuant to the scofflaw warrant.

Officer Cortazzo observed the occupants make furtive movements inside the Nissan, including the back seat passenger reaching to the floor, and observed their eyes widen. Officer Cortazzo ordered the occupants to stop moving and called for a back-up officer because of concern for his own safety.

Officer Kennedy arrived as back-up approximately 35 minutes later and proceeded to remove the rear seat passenger. When approaching the Nissan on foot, Officer Cortazzo kept his hand on his gun, but it was not drawn. Officer Kennedy asked the rear seat passenger (Rodriguez) if he had anything illegal, to which the passenger said “no.” Officer Kennedy conducted a pat-down of Rodriguez and found nothing except a dollar bill bearing a white substance.

Officer Cortazzo asked the defendant to turn off the car and removed him from the vehicle. Officer Cortazzo asked if the defendant had anything illegal and patted him down for weapons. The defendant’s right rear pants pocket contained a bulky metal object in the shape of a gun, which Officer Cortazzo discovered to be a Smith and Wesson handgun, which was loaded and contained five or six rounds. After a third officer arrived, the defendant was handcuffed and placed in a patrol car. Incident to arrest, the Officers discovered 27 clear plastic bags containing cocaine, $1,300 cash, and an operational cellular phone on the defendant’s person. Rosa was then patted down and nothing was discovered. Rodriguez and Rosa were told to leave the scene. The officers then searched the areas of the Nissan where the occupants were reaching and found 13 baggies of marijuana.

Officer Cortazzo “read” the defendant his Miranda rights from memory and the defendant said he would answer questions. The defendant said he stole the gun “from some guy’s porch nearby” and indicated the marijuana was his.

DISCUSSION

When the Commonwealth appeals from a suppression order, the reviewing court follows a clearly defined standard of review and considers only the evidence from the defendant’s witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. Commonwealth v. Nester, 551 Pa. 157, 709 A.2d 879 (1998). Where the record supports the factual findings of the trial court in ruling on a suppression motion, the appellate court is bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003).

The Commonwealth’s first claim on appeal is that this court erred in finding Officer Cortazzo did not have reasonable suspicion to conduct a Terry frisk of the defendant.

There are three different kinds of interactions between police and common citizens: mere encounters, investigative detentions, and custodial detentions. These interactions require different levels of justification depending on the “nature of the interaction” and whether a suspect is detained. Commonwealth v. DeHart, 745 A.2d 633, 636 (Pa. Super. 2000). Amere encounter is as simple as a request for information. There is no level of suspicion required and there is no official compulsion to stop or respond. Commonwealth v. Key, 789 A.2d 282 (Pa. Super. 2001). An investigative detention must be supported by reasonable suspicion of some criminal activity and is characterized by a temporary stop or detention but does not involve coercive conditions equivalent to those of a custodial detention. Id. The final type of encounter is custodial detention — arrest or its functional equivalent— which must be supported by probable cause. Id.

When evaluating the circumstances to determine whether a seizure has been effected, the pivotal inquiry is whether a police officer has restrained the liberty of a citizen, such that a reasonable person, innocent of any crime, would have thought he or she was being restrained had he or she been in the defendant’s shoes. Commonwealth v. Key, 789 A.2d 282 (Pa. Super. 2001). Although seizure is determined by a totality-of-the-circumstances test, relevant factors include the following:

“[1] the number of officers present during the interaction;

“[2] whether the officer informs the citizen they are suspected of criminal activity;

“[3] the officer’s demeanor and tone of voice;

“[4] the location and timing of the interaction;

“[5] the visible presence of weapons on the officer; and

“[6] the questions asked;____” Commonwealth v. Beasley, 761 A.2d 621, 624 (Pa.Super. 2000).

Where a police officer parked his patrol car perpendicular to the car in which a defendant was a passenger, such that the headlights of the patrol car shined directly into the passenger’s side of the car and proceeded to ask all occupants for identification, the encounter ripened into a seizure; no person in the defendant’s position would have felt free to terminate the encounter and depart the scene. Commonwealth v. Au, 986 A.2d 864 (Pa. Super. 2009).

In the instant case, Officer Cortazzo limited the defendant’s freedom of movement by parking parallel to the parked Nissan such that a door of the Nissan could not fully open without hitting the patrol car. Officer Cortazzo then ordered the defendant to stop moving around inside the Nissan. These two factors, taken together, “ripened” the encounter into a seizure. The defendant’s freedom of movement was restricted such that a reasonable person would believe he was being restrained. Even assuming arguendo that the defendant was not seized at this point, he was certainly seized at the time Officer Cortazzo conducted the pat-down search.

There are two circumstances in which a warrantless seizure of a person is constitutionally permissible: where police have probable cause to believe that a crime is being committed or is about to be committed, or where there is a reasonable belief by police that criminal activity is afoot. Commonwealth v. Melendez, 544 Pa. 323, 328, 676 A.2d 226, 228 (1996), citing Commonwealth v. Hicks, 434, Pa. 153, 253 A.2d 276 (1969). Reasonable suspicion requires the officer to “articulate specific observations which, in conjunction with reasonable inferences derived from these observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and the person he stopped was involved in that activity.” Commonwealth v. Little, 903 A.2d 1269, 1272 (Pa. Super. 2006). The furtive movements and apparent nervousness of the defendant and the two occupants are insufficient to create reasonable suspicion. See Commonwealth v Reppert, 814 A.2d 1196, 1206 (Pa. Super. 2002) (stating nervousness combined with furtive movements does not create reasonable suspicion without additional facts).

A seizure may also be sustained based upon probable cause that a crime is occurring or about to occur. However, Officer Cortazzo’s knowledge that the defendant did not have a current driver’s license is insufficient. To be guilty of driving while operating privilege is suspended or revoked, 75 Pa.C.S. §1543, the vehicle must actually be in motion. Commonwealth v. Costa-Hernandez, 802 A.2d 671 (Pa. Super. 2002). The defendant in this case was seated in the driver’s seat of the Nissan, but the car was legally parked and not in motion.

Alternatively, the law is clear that a warrantless search is proper when incident to a lawful arrest. See Commonwealth v. Copeland, 955 A.2d 396 (Pa. Super. 2008). However, Officer Cortazzo’s purported knowledge of the defendant’s scofflaw warrant is insufficient to sustain the seizure of the defendant. The Commonwealth did not produce a scofflaw warrant in evidence. Officer Cortazzo had not verified the warrant since sometime between late June and early July, approximately one-and-a-half to two months prior to this incident.

Under the circumstances of this case, the failure to verify the warrant to remain active cannot be excused on grounds of exigency or officer safety. Officer Cortazzo testified that he waited approximately 35 minutes for back-up to arrive prior to removing and patting down the occupants of the Nissan. The warrant could have been verified during this period of time. Second, in absence of probable cause or reasonable suspicion to believe some criminal activity was afoot, Officer Cortazzo created his own exigency by remaining present near the Nissan. This is impermissible. See Melendez, supra at 331-32, 676 A.2d at 230. Therefore, this Court did not err in holding the seizure of the defendant was not supported by reasonable suspicion or probable cause that a crime had been committed or was about to be committed, or incident to a valid, current arrest warrant.

The Commonwealth’s second issue on appeal states this court erred in granting suppression of evidence seized as a result of the search of the Nissan, as well as statements made by the defendant, as being tainted by the initial illegality of the seizure.

Based upon the foregoing analysis regarding the initial seizure of the defendant, this court found the search of the Nissan and the defendant’s statements to be tainted by that initial illegality. See Commonwealth v. Brown, 700 A.2d 1310, 1319 (Pa. Super. 1997) (“[t]he burden rests on the Commonwealth to demonstrate that the secondaiy evidence was gathered by means sufficiently distinguishable from any illegality so as to be ‘purged of its primary taint’ rather than derived from exploitation of the illegality.”).

The Commonwealth’s final claim on appeal is that this court erred in granting suppression of evidence seized as a result of search of the vehicle based upon Arizona v. Gant,_U.S._, 129 S.Ct. 1710, 173 L.Ed. 485 (2009). Gant limits the search of a vehicle incident to the arrest of a recent occupant to circumstances where it is reasonable to believe the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.

The Commonwealth’s claim misstates the analysis of this court. The court declined to rule upon the defendant’s Gant argument; it was unnecessary for the court to rule upon this suppression theory because the court had already found the search of the vehicle to have been tainted by the initial illegality of the seizure.

For the foregoing reasons, it is respectfully requested that the Commonwealth’s appeal be denied.

      . Driving a vehicle is distinguishable from operating a vehicle, which requires only actual physical control of the vehicle. Costa-Hernadez, 802 A.2d at 674.


author: DANTOS, J.,

text:
    Commonwealth v. Lawhead

      C.P. of Lehigh County,
    nos. 3766/2009 and 3770/ 2009.

      Joan Reinsmith, senior deputy district attorney, for Commonwealth.

      Robert Charles Patterson, for defendant.
    April 21, 2010
   DANTOS, J.,

Defendant, Charles Lawhead, has filed an appeal from this court’s order entered on February 24,2010, which denied defendant’s motion for reconsideration of sentence. Accordingly, we are issuing this opinion pursuant to the provisions of Pennsylvania Rule of Appellate Procedure 1925.

The relevant facts are as follows: On December 16, 2009, the defendant entered guilty pleas in case no. 3766/2009 to criminal trespass (18 Pa.C.S §3503(a)(l) (i)), stalking (18 Pa.C.S. §2709.1(a)(1)), and possession of an instrument of crime (18 Pa.C.S. §907(a)). On the same date, the defendant entered a plea of guilty to stalking (18 Pa.C.S. §2709.1(a)(l)) in case no 3770/2009. The negotiated pleas were open pleas. Then, on February 8, 2010, this court sentenced the defendant to a term of imprisonment of not less than nine months nor more than two years on each count in case no. 3766/2009, ordered to run concurrently to each other. Additionally, on February 8, 2010, the defendant was sentenced to a term of state imprisonment of not less than two and a half years not more than five years in case no. 3770/2009. This sentence was imposed concurrently to the sentence ordered in case no. 3766/2009. Then, on or about February 17,2010, the defendant filed a motion for reconsideration of sentence. On or about February 24, 2010, this court denied said motion. Defendant’s appeal followed on March 24, 2010.

The incidents that gave rise to the aforementioned charges in case no 3766/2009 occurred on July 25,2009. (NT. 2/8/10, p. 7.) On this date, at approximately 9 p.m., Officer Bill Williams of the Allentown Police Department observed the defendant walking around the parking lot of a business that was closed located at 1166 North Sherman Street, Allentown. (N.T. 2/8/10, p. 7.) The defendant subsequently told the officer that he was in the area checking on an ex-girlfriend, and checking vehicles to see if she had cheated on him. A check of records revealed that there was a protection from abuse order in effect against the defendant on behalf of the ex-girlfriend, victim Michelle Costanzo. The victim’s residence was located “a stone’s throw away” from this location. (N.T. 2/8/10, p. 7.) During the conversation the defendant told the police that he had burglarized the victim’s residence the previous evening. (N.T. 2/8/10, pp. 12, 19.) He also stated that he entered the garage when the burglar alarm was activated and he fled the scene. (N.T. 2/8/10, pp. 12, 19.) The defendant’s vehicle was located adjacent to the private lot at 1302 North Sherman Street in Allentown. (N.T. 2/8/10, p. 7.) Inside the car in plain view was a journal documenting the victim’s activities, and a pair of Bushnell binoculars. (N.T 2/8/10, p. 7.) The car was impounded. An inventory search of the vehicle revealed a pair of Smith and Wesson handcuffs, and a duffle bag containing rope, flashlights, a black flex cuff, wire cutters, a screwdriver, a can of WD-40 and black pliers. (N.T. 2/8/10, p 7.)

In case no. 3770/2009, on July 9, 2009, Officer Benjamin Iobst of the Allentown Police Department received a call from victim Michelle Costanzo stating that the defendant was following her. She had also seen his vehicle parked outside her home at 1904 East Woodlawn Street, Allentown, the previous day and noted no less than six separate incidents where the defendant followed her in his purple sedan or a white box truck. Further, she had video footage of the defendant approaching the front door of her residence on two separate occasions.

On March 29,2010, this court instructed the defendant to file of record and serve upon this court a concise statement of errors complained of on appeal no later than April 19, 2010, in accordance with Pa.R.A.P. 1925(b). Defendant complied with this order. In her concise statement of errors complained of on appeal, the defendant asserts one allegation of error. Specifically, the defendant contends that this court erred in sentencing the defendant to manifestly excessive sentence. In other words, the defendant is challenging the discretionary aspects of sentencing. Commonwealth v. Bishop, 831 A.2d 656, 660 (Pa. Super. 2003).

Initially this court notes that:

“Sentencing is within the sound discretion of the sentencing judge, and that decision will not be disturbed absent an abuse of discretion. Commonwealth v. Jones, 418 Pa. Super. 93, 613 A.2d 587, 591 (1992) (enbanc). ‘To constitute an abuse of discretion, the sentence imposed must either exceed the statutory limits or be manifestly excessive.’ Commonwealth v. Gaddis, 432 Pa. Super. 523, 639 A.2d 462, 469 (1994). Nevertheless, sentencing guidelines are merely advisory, and the court may, in its discretion, sentence outside the guidelines. When a trial court deviates from the guidelines, it must state its reasons for deviation on the record at the time of sentencing or in a contemporaneous written statement. Commonwealth v. Lawson, 437 Pa. Super. 521, 650 A.2d 876, 881 (1994). The court must also consider the guidelines as a starting point and deviate so as to impose a sentence consistent with both the public’s safety needs and the defendant’s rehabilitative needs. Id.” Commonwealth v. Shaffer, 722 A.2d 195, 198-99 (Pa. Super. 1998).

If “the sentencing court proffers reasons indicating that its decision to depart from the guidelines is not unreasonable,” its responsibilities have been fulfilled and the appellate courts will not disturb the sentence. Commonwealth v. Gibson, 716 A.2d 1275, 1277 (Pa. Super. 1998). (emphasis in original)

In the instant case, the defendant’s sentence for each offense was beyond the aggravated range, but within the statutory minimum and the statutory maximum, with each count running concurrently to each other. Unquestionably, the sentence imposed did not exceed the statutory limits. Therefore, the defendant’s sentence must be evaluated to determine if it was “manifestly excessive.” To do so, the following considerations must be examined:

“In determining whether a sentence is manifestly excessive, the appellate court must give great weight to the sentencing court’s discretion, as he or she is in the best position to measure factors such as the nature of the crime, the defendant’s character, and the defendant’s display of remorse, defiance, or indifference. Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa. Super. 1997). Where an excessiveness claim is based on a court’s sentencing outside the guideline ranges, we look, at a minimum, for an indication on the record that the sentencing court understood the suggested sentencing range. 42 Pa.C.S. §9721(b)... .When the court so indicates, it may deviate from the guidelines, if necessary, to fashion a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant, the gravity of the particular offenses as it relates to the impact on the life of the victim and the community, so long as the court also states of record ‘the factual basis and specific reasons which compelled him to deviate from the guideline range.’” Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003). (citations omitted)

Moreover, “[i]t is well-settled that appeals of discretionary aspects of a sentence are not reviewable as a matter of right.” Commonwealth v. Ladamus, 896 A.2d 592, 595 (Pa. Super. 2006); see also, Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006); Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa. Super. 2003). The defendant must demonstrate that a substantial question exists concerning the sentence. Commonwealth v. Lee, 876 A.2d 408, 411 (Pa. Super. 2005). Furthermore, a substantial question requires something more than an allegation that the sentences imposed are excessive or harsh. Ladamus, 896 A.2d at 595. Consequently, defendant’s assertion that this court abused its discretion by imposing an excessive and harsh sentence fails to present a substantial question to justify a review of her claim.

Additionally, even if the merit of the defendant’s sentencing claim was addressed, defendant’s argument must fail. The defendant’s sentence must initially be evaluated to determine if there was an abuse of discretion. Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957 (2007). The standard of review has been explained in the following manner:

“Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.” Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006), citing Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999) (en banc).

In imposing the defendant’s sentence, this court considered the “protection of the public, the gravity of the offense as it relates to the impact on the victim[s] and the community, the defendant’s rehabilitative needs, and the sentencing guidelines.” 42 Pa.C.S. §9721(b); Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa. Super. 2008). Indeed, this court considered the fact that this was not the first time that the defendant had behaved in such a manner of unwillingness to accept that a relationship was over. (N.T. 2/8/10, pp. 10-11, 32.) The court fashioned the defendant’s sentence based on the actions of the defendant: the defendant maintained a log with over 100 entries detailing how he entered the victim’s house, turned things on, went through her belongings, made copies of keys, used her bathroom and checked her sheets. (N.T. 2/8/10, p. 32.) The defendant had flex ties and handcuffs in his vehicle and provided an unbelievable explanation to this court for having them in his possession. (N.T. 2/8/10, p. 33.) In light of the defendant’s actions, this court determined that the guidelines did not adequately account for his behavior. (N.T. 2/8/10, p. 32.) This court found the defendant to be a danger to this victim, to the community, as well as to anyone with whom he is in a relationship. (N.T. 2/8/10, p. 33.) Additionally, this court noted that the protection from abuse order did not stop the defendant. (N.T. 2/8/ 10, p. 33.) Also, the defendant’s first arrest did not deter the defendant from continuing his criminal behavior. (N.T. 2/8/10, p. 33). Therefore, this court concluded that the only means to prevent the defendant from perpetrating such future criminal behavior and to protect the victim was incarceration. (N.T. 2/8/10, pp. 33, 36.)

Also, this court did not fail to consider mitigating factors. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988) (holding that where a pre-sentence report exists, there is a presumption that the sentencing judge was aware of, and adequately considered, information relevant to the defendant’s character, as well as any mitigating factors). In fact, the court carefully reviewed the pre-sentence investigation report, the psychological evaluation prepared by Ms. Martin, the victim impact statement, the letters and sentencing memorandum provided by Attorney Patterson, as well as heard the testimony presented at the time of sentencing. Using its discretion, this court imposed a sentence that was within the guidelines and within the law.

Accordingly, the defendant’s argument is baseless and the defendant’s appeal must be dismissed.

      . From February 17,2009, through July 25,2009, there were 106 documented entries in the journal. (N.T. 2/8/10, p. 8.) Additionally, from July 10, 2009, the day after the defendant was arrested in case no. 3770/2009, through July 25, 2009, there were 14 entries. (N.T. 2/8/10, p. 8.) The defendant’s documented journal entries indicate that he was at the victim’s home, sometimes multiple times in one day. (N.T. 2/8/10, pp. 8-9.) In fact, some enteries indicate that he was inside of the victim’s home, in her garage and had even tripped her alarm. (N.T. 2/8/10, p. 9.)

      . The sentence imposed in case no. 3770/2009 was also ordered to run concurrently to the sentence imposed in case no. 3766/2009.


author: COX, J.,

text:
    Bowlen v. Wertz

      C.P. of Lawrence County,
    no. 10894 of 2009.

      David A. Mascio and Christopher A. Papa, for plaintiff.

      Susan M. Papa, for defendant.
    June 1. 2010
   COX, J.,

Before the court for disposition is the motion for judgment on the pleadings filed on behalf of the plaintiff Brett G. Bowlen, which argues that the defendant Cindy Wertz is required to return her engagement ring to the plaintiff because they are no longer engaged and they failed to marry.

The following facts have been established thus far through the pleadings: The plaintiff, who now resides at 173 Capital Drive, Weirton, West Virginia, entered into an exclusive relationship with the defendant, who now resides at 222 South Market Street No. 2, New Wilmington, Lawrence County, Pennsylvania, in January of 2000. After nearly five years of courtship, the plaintiff proposed marriage to the defendant onNovember 10,2005, which she accepted. Subsequently, onNovember 19,2005, the plaintiff purchased a 2.02 carat, cut corner square brilliant diamond engagement ring at Joyce’s Fine Jewelry Inc., located atNorthpointe Plaza, 160 N. Pittsburgh Street, Uniontown, Fayette County, Pennsylvania, for the amount of $ 10,600. Initially, the plaintiff made a $3,000 deposit on the engagement ring. The plaintiff eventually gave the ring to the defendant. However, on July 20, 2008, the parties ended their relationship and the plaintiff requested that the defendant return the engagement ring to him. The defendant agreed to do so, but stated that she would have to retrieve the engagement ring from her mother’s safe deposit box. The defendant failed to return the engagement ring to the plaintiff and the plaintiff has an outstanding balance on the engagement ring of $5,100. The plaintiff also claims that the engagement ring has a fair market value of $18,800, but that has been disputed by the defendant.

The plaintiff filed suit on May 29, 2009, and initially asserted a cause of action in breach of contract. Eventually, the plaintiff filed a motion for judgment on the pleadings seeking return of the engagement ring; however, this court denied that motion stating that the plaintiff failed to aver a cause of action in replevin and there was still an outstanding issue of fact as to the value of the engagement ring. The plaintiff subsequently amended his complaint and established claims for breach of contract and replevin. The defendant has filed a counterclaim requesting damages in the amount of $ 1,000 for a wedding ring she purchased for the plaintiff. In response, the plaintiff has admitted that the defendant purchased the wedding ring, but he lacks sufficient knowledge as to the value of the same. The plaintiff has now filed this motion for judgment on the pleadings seeking possession of the engagement ring.

Pa.R.C.P. 1034(a) permits any party to move for judgment on the pleadings after the relevant pleadings are closed, but within such time as not to unreasonably delay the trial of the case. Amotion for judgment on the pleadings is similar to a demurrer. It may be entered when there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law. In determining if there is a dispute as to facts, the court must confine its consideration to the pleadings and relevant documents. Kelly v. Hazleton General Hospital, 837 A.2d 490 (Pa. Super. 2003); Miller v. Nelson, 768 A.2d 858 (Pa. Super. 2001).

Amotion for judgment on the pleadings is in the nature of a demurrer wherein the opposing party’s well-pleaded allegations are viewed as true, but only those facts that are specifically admitted by the objecting party may be weighed against him. Goldsmith v. City Council of the City of Easton, 817 A.2d 565 (Pa. Commw. 2003). Courts may not consider inadmissible evidence in determining a motion for judgment on the pleadings. Hammerstein v. Lindsay, 440 Pa. Super. 350, 655 A.2d 597 (1995). Such a motion may only be granted in cases where no material facts are at issue and the law is so clear that a trial would be a fruitless exercise. Kerr v. Borough of Union City, 150 Pa. Commw. 21, 614 A.2d 338 (1992).

The Pennsylvania Supreme Court has clearly established that a plaintiff who provides an engagement ring to a defendant is entitled to have that engagement ring returned if the parties do not get married. Lindh v. Surman, 560 Pa. 1,742 A.2d 643 (1999). In Lindh, the plaintiff proposed marriage to the defendant and presented her with a diamond engagement ring. The defendant accepted his marriage proposal; however, they eventually broke the engagement and the plaintiff requested that the defendant return the engagement ring and she complied. The parties later reconciled and the plaintiff again proposed marriage, which was accepted by the defendant. The plaintiff ended the engagement for a second time and asked the defendant to return the engagement ring, which the defendant refused to do. The plaintiff filed suit claiming he was entitled to have the engagement ring returned and, if the engagement ring was not returned, he was entitled to the fair market value of the same.

First, the Lindh court contemplated whether Pennsylvania courts should consider who was at fault for ending the engagement when determining which party was entitled to possession of an engagement ring. The court decided that awarding possession of an engagement ring based on fault is unfeasible. Id., 560 Pa. at 7, 742 A.2d at 646. The court stated, “A ring-return rule based on fault principles will inevitably invite acrimony and encourage parties to portray their ex-fiancées in the worst possible light, hoping to drag out the most favorable arguments to justify, or to attack, the termination of an engagement.” Id. Thus, the Lindh court adopted the no-fault approach in engagement ring cases, which means that the donor of the engagement ring is always entitled to have the engagement ring returned, even if the donor terminates the engagement. Id., 560 Pa. at 7-8,742 A.2d at 646-47. Therefore, the court held that the plaintiff was entitled to possession of the engagement ring, even though he ended the engagement. Id.

In the case sub judice, it has been admitted by the defendant that the parties were engaged and that the plaintiff provided her with a diamond engagement ring. It is also admitted that the engagement ended. Although, the plaintiff averred that the engagement was ended by mutual consent and the defendant insists that the plaintiff ended the engagement, this dispute is of no consequence. The Lindh court adopted the no-fault approach in deciding who is entitled to possession of an engagement ring. Therefore, the donor of the engagement ring, in this case the plaintiff, is entitled to possession of the ring, regardless of which party ended the relationship. As a result, there is no question of fact as to whom is entitled to possession of the engagement ring.

It must be noted that the defendant did not admit to the value of the engagement ring stated in the appraisal attached to the complaint. However, the plaintiff has expressed a desire to have the ring returned and amended his complaint to include a claim for replevin. The court agrees that the plaintiff is entitled to possession of the ring. Thus, the court grants the plaintiff’s motion for judgment on the pleadings and the defendant is required to return the diamond engagement ring to the plaintiff. If the defendant refuses or is unable to return the engagement ring, the plaintiff may proceed to seek monetary damages for the value of the ring.

For the reasons set forth in this opinion, the plaintiff’s motion for judgment on the pleadings is granted.

ORDER

Now June 1,2010, this case being before the court on May 24,2010, for oral argument on the motion for judgement on the pleadings filed by the plaintiff, with both parties appearing, the plaintiff, Brett G. Bowlen, represented by counsel, David A. Mascio, Esquire and Christopher A. Papa, Esquire and the defendant, Cindy Wertz, appearing through her counsel, Susan M. Papa, Esquire and after a consideration of the arguments and briefs presented and submitted by counsel and a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

(1) In accordance with the attached opinion, the motion for judgement on the pleadings filed by the plaintiff is hereby granted.

(2) The prothonotary of Lawrence County shall enter judgement in favor of the plaintiff, Brett G. Bowlen and against the defendant Cindy Wertz on the issue of liability.

(3) The defendant Cindy Wertz is hereby ordered to return the diamond engagement ring which is the subject of this lawsuit to the plaintiff within thirty days of the date of this order of court.

(4) The prothonotary is directed to serve a copy of this order of court upon counsel of record.


author: WALLACH MILLER, J.,

text:
    Gennimi v. Township of Stroud
    C.P. of Monroe County,
    no. 6199 Civil 2009.

      Vance E. Meixsell, for plaintiff.

      Todd Weitzman and RichardE. Deetz, for Stroud Township.

      David J. Williamson, for Zoning Hearing Board.
    March 30. 2010
   WALLACH MILLER, J.,

On appeal is the revocation of a building permit to appellant, Joseph L. Gennimi by the zoning officer of Stroud Township and whether Gennimi had a “vested right” to the zoning permit.

The facts in this case are convoluted. In 2000, Gennimi purchased a tract of land (Property) located in Stroud Township. The land consists of two acres, and at the time of purchase had an unexpired septic permit for an above-ground septic system which was issued to the previous owners on April 23, 1998. On December 15, 2000, Gennimi was granted a zoning permit by Zoning Officer Ernest Staples for the construction of a 1,624 square foot single family dwelling which has been under construction for the past nine years. The 1998 septic permit expired on April 23,2001. A second septic permit was issued for the property on December 13, 2004, for an above ground sand mound system. The original 1998 soil probes and test holes were used in issuing the 2004 septic permit. The second septic permit expired on December 13,2007. After the second septic permit expired, Gennimi met with Stroud Township Septic Enforcement Officer, Helen Beers in December 2007. At that meeting Beers gave Gennimi a handwritten note which read:

“New appl and $175 to Stroud Township

“Old testing may be used

“Stake out absorption field

“Redesign to current reg’s and enclose

“All tank & related spec’s

“/s/ Helen Beers”

A second zoning permit was issued by Staples on March 26,2008. Gennimi did not renew his septic permit prior to obtaining the March 26, 2008, zoning permit.

On November 14, 2008, Beers and John DeCusatis made a site visit in an attempt to locate the test holes for the septic permit issued in 1998. The test holes could not be located. On November 17, 2008, Gennimi filed a request for septic permit and a second site visit was made in order to conduct soil probes. It was determined that there were no suitable areas for an on-site septic system. A third site visit was conducted on December 12, 2008, in the presence of a Pennsylvania Department of Environmental Protection Regional Enforcement Officer. A determination was made that the subject property was not suitable for an on-lot system due to inadequate limiting zone, high water table and other limitations. Thereafter, on December 23, 2008, the zoning permit issued in March 2008, was revoked by the Township zoning officer because the septic system permit had expired and was not renewed. On January 5,2009, a Township septic officer issued a formal denial of the septic permit application dated November 17, 2008. Gennimi filed an appeal to the Stroud Township Zoning Hearing Board regarding the revocation of the March 2008, zoning permit.

On June 5,2009, the Stroud Township Zoning Hearing Board upheld the zoning officer’s decision to revoke a building permit and determined that Gennimi was not able to meet the standard for a vested right or variance by estoppel. Gennimi filed a timely appeal and a complete record of the proceedings, including transcripts of testimony, was filed by appellee, Zoning Hearing Board of Stroud Township (ZHB) with the Monroe County prothonotary. Following submission of briefs and oral argument, the appeal is ripe for disposition by the court.

When a zoning appeal is submitted on the existing record and no new evidence is presented, this court’s scope of review “is limited to determining whether the governing body committed an error of law or abused its discretion.” Ruf v. Buckingham Township, 765 A.2d 1166, 1168 n.2 (Pa. Commw. 2001). (citation omitted) The governing body abuses its discretion only when its decision is not supported by substantial evidence, which is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 555, 462 A.2d 637, 640 (1983). (citation omitted) Furthermore, the court may not substitute its own judgment for that of the local agency, unless it is found that the board manifestly abused its discretion. Nascone v. Ross Township Zoning Hearing Board, 81 Pa. Commw. 482, 473 A.2d 1141 (1984). The court may only conclude that a zoning hearing board abused its discretion in those instances where the board’s findings are not supported by substantial evidence on the record. POA Company v. Findlay Township Zoning Hearing Board, 551 Pa. 689, 713 A.2d 70 (1998). A finding of substantial evidence requires such relevant evidence so that a reasonable mind might accept as adequate to support a conclusion. Id. The board, as fact-finder is the ultimate judge of credibility and resolves all conflicts of evidence.” In re Brickstone Realty Corp., 789 A.2d 333 (Pa. Commw. 2001). (citation omitted) Accordingly, we will not disturb the ZHB’s credibility determinations.

The first issue before the court is whether the ZHB abused its discretion or committed an error of law in upholding the decision of the Stroud Township Zoning Officer. In deciding the case, the ZHB found that Gennimi failed to renew his septic permit prior to completing substantial improvements to his house located on the property and before the zoning permit was revoked. Pursuant to the Stroud Township Zoning Ordinance, section 11.120, it states that no zoning permit shall be issued unless the applicant has obtained a septic permit. At the ZHB’s hearing on April 8, 2009, Staples testified that Gennimi had a zoning permit dated December 15, 2000. (NT dated April 8,2009 atp.143.) Staples testified that a septic permit was issued by the Township on December 13, 2004, which was valid until December 13, 2007. (NT April 8, 2009 at p.150.) In December 2007, Gennimi spoke with Staples about renewing his zoning permit. (NT April 8, 2009 at p.150.) Staples advised Gennimi that “in order to get this going along, his septic permit was running out and he would need the septic permit — ” (NT April 8,2009 at p.150.) Staples reissued the zoning permit to Gennimi on March 26, 2008, to complete construction of his house dwelling and expand on a shed already built on the property. (NT April 8,2009 at p. 155-56.) Staples reissued the zoning permit to Gennimi knowing that a septic permit had not been issued. (NT April 8, 2009 at p.159.) He acknowledged that he spoke to Beers about the septic permit in February 2008. (NT April 8,2009 at p. 160.) Staples was under the belief that Gennimi was going to file an application for a septic permit directly after speaking with him. (NT April 8, 2009 at p. 164.) Gennimi did not apply for a septic permit until November 17,2008. On December 23,2008, Staples revoked the zoning permit because the septic permit expired and was not renewed. We find that based upon this evidence Staples prematurely issued the zoning permit. After no septic permit was issued, Staples recognized that Gennimi was in violation of the Stroud Township Zoning Ordinance and he properly revoked the zoning permit. We find the ZHB did not abuse its discretion or commit an error of law in upholding the decision of the Stroud Township Zoning Officer.

The next issue before this court is whether Gennimi acquired a vested right to construct his house pursuant to the zoning permit which was issued by Staples on March 26, 2008.

The courts of this Commonwealth have recognized a five-prong test to determine vested rights cases. These factors are as follows:

“(1) [Aperson’s]due diligence in attempting to comply with the law;

“(2) [A person’s] good faith throughout the proceedings;

“(3) The expenditure... of substantial unrecoverable funds;

“(4) The expiration without appeal of the period during which an appeal could have been taken from the issuance of a permit; and

“(5) The insufficiency of the evidence to prove that individual property rights or public health, safety or welfare would be adversely affected by the use of the permit.” Highland Park Community Club of Pittsburgh v. Zoning Board of Adjustment of City of Pittsburgh, 509 Pa. 605, 612-13, 506 A.2d 887, 891 (1986).

Gennimi argues that the ZHB erred in failing to find that he did not acquire a vested right in the zoning permit.

Our Pennsylvania Supreme Court has held that an individual can be considered to lack both due diligence and good faith where it can be demonstrated that they either ignored or failed to comply with the rules promulgated by a local zoning board. Id, 509 Pa. at613-15, 506 A.2d at 892-893. The record in this case clearly illustrates that Gennimi had to present a new application for septic permit. (NT May 6, 2009 at pp. 46-47.) Staples advised Gennimi that “in order to get this going along, his septic permit was running out and he would need the septic permit____” (NT April 8,2009 at p.150.) Gennimi failed to do this. The Stroud Township Zoning Ordinance, section 11.120, provides, in pertinent part, that no zoning permit shall be issued unless the applicant presents the zoning officer with proof that a sewage permit has been issued by the Township Sewage Enforcement Officer for the lot. Staples made Gennimi aware that he would need the septic permit, yet he failed to act for several months. After allowing several permits to expire, Gennimi failed to use due diligence to comply with the law. We are, therefore, constrained to find that Gennimi failed to act with due diligence and in good faith in failing to secure a septic permit for the property. Due to our determination here, we will not discuss the remaining factors in determining whether Gennimi acquired a vested right in the zoning permit. We find that there is no validity to Gennimi’s claim that he is entitled to a vested right to the zoning permit for the construction of his single family dwelling.

In light of the foregoing, we enter the following order.

ORDER

And now March 30, 2010, the appeal of Joseph E. Gennimi from the decision of the Zoning Hearing Board of Stroud Township dated June 5, 2009, is denied.


author: LASH, J,

text:
    DiGuardi v. Hine

      C.P. of Berks County,
    no. 00-2486.

      Gregory D. Henry, for plaintiff.

      Barbara H. Berm, for defendant Hine.
    Defendant Anthony DiGuardi failed to appear.
    May 13, 2010
   LASH, J,

The matter before this court is the petition of defendant, Patti Hine (Mother), to modify the child custody order entered by this court on June 2,2009 regarding custody of the Minor Child, Nathaniel DiGuardi, bom September 10,1999. Atrial was held on May 7,2010. We enter the following findings of fact:

I. FINDINGS OF FACT

(1) Plaintiff, Lorrie A. DiGuardi (Grandmother), is an adult individual who currently resides at 762 North 6th Street, Reading, Berks County, Pennsylvania 19601.

(2) Defendant, Patti Hine (Mother), is an adult individual who currently resides at 1111 Green Street, Reading, Berks County, Pennsylvania 19604. Mother has resided at her current residence since October 2009. Previously, she resided at 145 South 12th street, Reading, Berks County, Pennsylvania 19602.

(3) Defendant, Anthony E. DiGuardi (Father), is an adult individual who currently resides at 762 North 6th Street, Reading, Berks County, Pennsylvania 19601.

(4) Mother and Father are the natural parents of a minor child, Nathaniel DiGuardi, bom September 10, 1999.

(5) Grandmother is the paternal grandmother of the minor child.

(6) Mother is the natural parent of two other children, Jeremy Kiwak, age 6, and Jocelyn Hine, age 4. Jeremy resides with his father. Jocelyn currently resides with caretakers, Stacey and Larry Wells, however, after trial held, this court by order of January 14,2010 transferred primary custody of Jocelyn to Mother to take effect on August 1, 2010, with the Wells’ to have partial custody one weekend per month. The decision and order entered by this court on January 14,2010 to docket no. 08-1536 in the Court of Common Pleas of Berks County, Pennsylvania, is made a part of this record and incorporated by reference.

(7) Father has two other children, who reside with their natural mother.

(8) This court held a child custody trial on the above-captioned matter on May 26,2009. At that time, the court made specific findings of fact and ordered, among other things, that Grandmother would have primary physical custody of the minor child, with Mother to have partial custody on alternate weekends from Friday at 5 p.m. to Sunday at 5 p.m. and one evening per week, the day to be determined by agreement, but in lieu thereof, Wednesday evening from 5 p.m. to 8 p.m. The decision and order of this court entered June 2, 2009 is made a part of this record and incorporated by reference.

(9) The minor child is currently in fourth grade at Cabrini Academy, a parochial school in the City of Reading. Grandmother pays the tuition. However, Cabrini Academy is downsizing and will not be offering fifth grade classes for the 2010-2011 school year. Accordingly, Grandmother’s plan is to enroll the minor child at St. Margaret’s Elementary School, also a parochial school, whose tuition will be paid by Grandmother.

(10) Mother’s plan is to obtain primary custody and enroll the minor child at 10th and Green Elementary school, a public school in the Reading School District.

II. DISCUSSION

In making a determination, this court considered the testimony of Mother, Grandmother, Mother’s therapist, Connie Malafarina, Father’s sister, Jamie DiGuardi, Father’s ex-girlfriend and Mother of his children, Lisa Erb, Mother’s Brother, Christopher Reichart, an in camera conference with the minor child, the exhibits submitted by the parties, and the decision and order entered by this court in the within matter on June 2, 2009, and in the matter of Patricia Hine v. Larry Wells, Stacey Wells and Quillen Thrasher, entered January 14, 2010.

Mother’s separation from the minor child began on July 31, 2007 when the minor child was removed from her by Berks County Children & Youth Services (CYS) primarily due to her relationship with Quillen Thrasher, the father of her daughter, Jocelyn, who was convicted of recklessly endangering the welfare of a child. Mr. Thrasher had been accused of excessively shaking an infant child. Additionally, CYS was concerned with issues relating to mother’s instability, her mental health, and her involvement with drugs and alcohol.

Since July 31,2007, Grandmother has had custody of the minor child. She, with the assistance of her daughter, Jamie DiGuardi, has provided for all the caretaking responsibilities required by the minor child. The minor child has an established and stable home environment. The minor child’s school activities are monitored, and the minor child is required to complete his homework assignments as soon as he is home from school. The minor child is active in several sports, namely, baseball, football and basketball, with Grandmother or Jamie DiGuardi making sure that the minor child is at every practice and game. Grandmother also foots the bills for the activities.

The minor child has contact with his Father, as Father also resides in Grandmother’s household. Father engages in recreational activities with the minor child. The minor child also has a playmate, his cousin, Jose, Jamie DiGuardi’s son, who resides in the house.

Since July 31, 2007, Mother has accepted the directions of CYS and the court and has participated in therapy and classes, as more fully set forth in our opinion of June 2,2009, sufficient to prepare her to reassume the role of a caretaker. Mother sets forth that she is now ready to assume this responsibility and requests that the court award her primary custody.

Mother generally has the minor child on alternate weekends, at the same time she has her other children. She states that the minor children get along well together. She has bedrooms for the children, however, the children prefer to sleep in Mother’s bedroom, in their own beds, because they are scared to sleep alone. Mother believes her home presents an appropriate environment. In addition to ample space within the home, she has a yard for the children. The home is within two blocks of 13th and Green Elementary School, where the minor child would attend.

Mother does not drive, preferring to walk, take a bus, or rely on others to provide her transportation. This could cause some concern regarding transporting the minor child to his sports activities. Mother states that she has been in contact with other mothers participating in the sports who have agreed to help out. Mother states that she would not use her transportation issues as the basis for denying the minor child access to sports activities, although she does question how committed he is to some of the sports.

Grandmother’s position is that the status quo should be maintained. She has provided a stable home for the minor child, since being called upon by CYS in July 2007. The minor child’s father resides with her, as does the minor child’s aunt, Jamie DiGuardi, and cousin, Jose Malave, all of whom have a good bond with the minor child and spend time with him. Jamie DiGuardi is very involved in helping the minor child with homework and transporting the minor child to the sports activities. Jamie also assists Grandmother in the day-to-day maintenance, in part because of Grandmother’s work schedule, working third shift, getting her sleep in the morning and midday hours.

In essence, Grandmother believes that she has provided a stable household and does not see why any change should be made. She is concerned about Mother’s ability to care for the minor child and to provide him with his basic needs. She is also concerned about Mother’s ability to transport the minor child to the sports activities. She also observed that, due to transportation or for some other reason, Mother has not always followed through with her scheduled visits.

Both parties relate difficulty in getting along with the other party. Mother portrays Grandmother as possessive and controlling. According to Mother, Grandmother does not provide her with the sports schedule, or any information, and in fact refuses to speak with her at all. Mother states that Grandmother has made it difficult for Mother to see the minor child on weeknights, switching the days from Wednesdays to Mondays, which is a bad day for Mother because of her therapy and class sessions being scheduled at that time. For her part, Grandmother states that Mother does not appear sufficiently invested, failing to appear for certain visits, and being very difficult. According to Grandmother, any discussions with Mother quickly turn into an argument. From this court’s perspective, both parties appear to share somewhat in the blame. It is likely that Grandmother can be controlling and condescending to mother. Mother has insecurities which present as a “chip on her shoulder,” making it difficult for her to accept any direction from Grandmother, whether fair or unfair.

The law is well established. As we stated in our prior opinion, 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).

That being said, we also recognize Grandmother’s added burden as a third party. “[WJhere the custody dispute is between a biological parent and a third party, the burden of proof is not evenly balanced. In such instances, ‘the parents have a “prima facie right to custody,” which will be forfeited only if “convincing reasons” appear that the child’s best interests will be served by an award to the third party. Thus, even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the [biological] parents’ side.’” Jones v. Jones, 884 A.2d 915, 917 (Pa. Super. 2005), quoting In re Hernandez, 249 Pa. Super. 274, 376 A.2d 648, 654 (Pa. Super. 1977). [Emphasis omitted.]

When this matter was last before the court, Mother had been involved in the process of developing into a responsible parent, with the help of her therapists and instructors. At that time, she was not prepared to assume primary custody. Since the trial, the process has continued. As she moves further away from the issues of her past, she appears to be more confident and assured of her capacity as a parent. She states she is now ready to assume custody.

Grandmother has provided an appropriate household for the minor child to reside for the better part of three years. She was willing to step in when called upon, and she remains willing and able to fulfill the responsibilities of a parent. In 2009, this court awarded Grandmother primary custody and would be prepared to do so again, at this juncture, if Mother were not ready to assume her role as a parent. However, as a third party, Grandmother’s status as caretaker is subordinated to Mother’s status if she can properly perform as a parent.

Mother has complied with the terms and conditions set by the court. There is no evidence that she has any relationship with Quillen Thrasher at this time. Her personal issues have been addressed. The reasons that existed when CYS stepped in to assume temporary custody are no longer present. While there are potentially still problems, particularly logistical involving transportation that may still exist, these are not reasons to deny a parent full custody status. Further, the timing is appropriate, as the minor child is completing his school year and will have to switch schools under any circumstances for the 2010-2011 school year.

This court shall award primary custody to Mother, with Grandmother to have partial custody every other weekend to take effect one week after the end of the minor child’s school year. Mother requested that Grandmother have supervised visits, stemming primarily from the hard feelings between the two, but that request simply is not appropriate. Further, Father resides in the household, and although he has not stepped forward to assume a parenting role, he, nevertheless, should have interaction with the minor child, which can be accomplished at Grandmother’s house on the alternating weekend basis. Additionally, Grandmother will receive one evening per week, with the date to be Wednesdays, if the parties cannot agree on another date.

We enter the following order:

ORDER

And now, May 13, 2010, after trial held, custody of the minor child, Nathaniel DiGuardi, bom September 10, 1999, shall remain as set forth in this court’s order of June 2, 2009, until one week after the conclusion of the minor child’s 2009-2010 school year. At that time, custody shall be transferred as follows:

(1) Defendant, Patti Hine (Mother), shall have sole legal custody of the minor child.

(2) Mother shall have primary physical custody of the minor child.

(3) Plaintiff, Lorrie A. DiGuardi (Grandmother), shall have partial custody of the minor child on alternate weekends from Friday at 5 p.m. to Sunday at 5 p.m., and one evening per week, the day to be determined by agreement, but in lieu thereof, Wednesday evening from 5 p.m. to 8 p.m.

(4) Mother shall have Mother’s Day with the minor child each year from 9 a.m. to 8 p.m. As Grandmother and defendant, Anthony E. DiGuardi, reside together, Grandmother shall receive Father’s Day each year from 9 a.m. to 8 p.m.

(5) The parties shall alternate the following named holidays, with Mother having the next holiday after the date of this order from 9 a.m. to 8 p.m.: Easter, Memorial Day, July 4th, Labor Day, and Thanksgiving.

(6) Grandmother and Mother shall alternate the Christmas holiday, such that on odd-numbered years Mother shall have custody from December 24 at 1 p.m. through December 25 at 1 p.m., then Grandmother shall have December 25 at 1 p.m. to December 26 at 1 p.m., with the parties to alternate the schedule on even-numbered years.

(7) The holiday schedule shall take precedence over the regular custody schedule.

(8) Quillan Thrasher shall have no contact with the minor child whatsoever.

(9) Mother shall continue with counseling as recommended and shall continue on medication as prescribed.

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

APPENDIX

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 a trip 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.


author: CAMPBELL, J.,

text:
    Atlantic Credit & Finance Inc. v. Spangler

      C.P. of Adams County,
    no. 09-S-1663.

      Fredric I Weinberg, for plaintiff.

      John L. Perry, for defendant.
    March 2, 2010
   CAMPBELL, J.,

Plaintiff filed a complaint on October 19,2009. In its complaint, plaintiff alleges that it is a debt buyer and successor in interest to the balance remaining on a credit card allegedly issued to defendant. Plaintiff asserts that defendant was issued a credit card by the original creditor pursuant to an agreement as to terms and conditions. As of September 17, 2009, a balance remains due on the credit card in the amount of $4,826.56. Plaintiff further alleges that defendant’s last payment on the account was made on February 18, 2008.

Defendant filed preliminary objections to plaintiff’s complaint on December 30,2009, arguing that plaintiff’s complaint fails to conform to law or rule of court. Defendant argues that the complaint is deficient for several reasons. First, defendant argues that plaintiff failed to attach any writing containing the terms and conditions that the credit card was allegedly subject to, and failed to explain the absence of such a writing in violation of Pa.R.C.P. 1019(i). Second, defendant argues that plaintiff has failed to attach a valid written assignment from the original creditor to itself or any other entity, properly identifying the account alleged to be owed by plaintiff or explain the absence of such in violation of 18 Pa.C.S. §7311 (a)(1) and Pa.R.C.P. 1019(h) and (i). Finally, defendant argues that plaintiff’s complaint fails to conform to the requirements of Pa.R.C.P. 1019(a) and (f) in that it fails to state the material facts upon which the cause of action is based by failing to aver the time, place, and items of goods and/or services allegedly delivered to defendant. For the reasons set forth below, defendant’s preliminary objections are sustained.

It is well-established that in ruling on preliminary objections, the court must accept as true all well-pleaded allegations of material fact as well as all inferences reasonably deducible from those facts. Ballroom LLC v. Commonwealth, 984 A.2d 582, 586 n.3 (Pa. Commw. 2009). Preliminary objections will be sustained only where the case is clear and free from doubt. Rambo v. Greene, 906 A.2d 1232, 1235 (Pa. Super. 2006).

In the present case, defendant’s preliminary objections are primarily based upon Rule 1019 of the Pennsylvania Rules of Civil Procedure governing the contents of pleadings. Rule 1019 states in relevant part as follows:

“(a) The material facts on which a cause of action or defense is based shall be stated in a concise and summary form;

“(f) Averments of time, place and items of special damage shall be specifically stated;

“(h) When any claim or defense is based upon an agreement, the pleading shall state specifically if the agreement is oral or written; and

“(i) When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing.”

When a debt collection action is filed against a credit card holder, in order to comply with the requirements of Rule 1019, the plaintiff must attach to the complaint a copy of the cardholder agreement, a statement of account and, where applicable, the contract between the original creditor and assignee as evidence of the assignment. Failure to do so may be fatal to the complaint. Atlantic Credit and Finance Inc. v. Giuliana, 829 A.2d 340 (Pa. Super. 2003). If a plaintiff does not have access to the documents the plaintiff must so state in writing along with (1) the reason that the plaintiff does not have access to the documents and (2) the substance of the missing document. Pa.R.C.P. 1019 (i).

Plaintiff in the present case has failed to attach either the original cardholder agreement or appropriate evidence of an assignment. The court finds that plaintiff’s attached exhibits are insufficient to satisfy Pa.R.C.P. 1019(h) and (i). Plaintiff has failed to attach any documentation of the agreement between the original creditor and defendant. The affidavit and account statement provide no information as to what, if any, contractual terms (i.e., payment obligations, interest rates, dates of charges, principal charges versus accrued interest, methods of calculating interest, billing cycles) were applicable to defendant. Moreover, plaintiff’s affidavit is insufficient to establish a lawful assignment between original creditor and plaintiff. In order to be lawful, assignments between creditors and collection agencies must be in writing. 18Pa.C.S. §7311(a)(1). As this claim is based on an assignment, there must be some writing which in turn must be attached to the complaint. Pa.R.C.P. 1019(f). Otherwise its absence must be explained. Id. In addition, although plaintiff need not recite details of every purchase and account transaction in the complaint itself, plaintiff must allege sufficient detail (and attach sufficient documentation) to apprise defendant of the basis for plaintiff’s demand. Without the required documentation the complaint lacks the requisite specificity to allow defendant to respond.

For the reasons stated herein, defendant’s preliminary objections are sustained. Plaintiff’s complaint will be dismissed without prejudice. Plaintiff is granted 20 days to file an amended complaint.

ORDER

And now, March 2, 2010, defendant’s preliminary objections are sustained. Plaintiff’s complaint is hereby dismissed without prejudice. Plaintiff is granted 20 days to file an amended complaint.


author: SIBUM, J,

text:
    Suto v. Anderson

      C.P. of Monroe County,
    no. 260 CV 2010.

      Alexander Suto, pro se.

      Scott M. Amori, for defendant.
    April 19, 2010
   SIBUM, J,

This matter concerns a disagreement between neighbors over the removal by defendants of a bush located on plaintiff’s property. On January 12, 2010, an untitled document was filed by or on behalf of plaintiff, Alexander Suto, in which plaintiff “demands to recover full replacement cost of bush at $4,500, plus court costs, plus all cost of collection, plus interest.” The document appears to be in the nature of a complaint prepared without the assistance of counsel. The complaint does not identify the parties to the action in the body of the document. Rather, the caption identifies plaintiff as “Alexander Suto et al.”, and the defendants as “Eric Anderson and MaryGrace Anderson.”

Defendants filed preliminary objections on February 19, 2010 raising three motions to dismiss for failure to conform to law or rule of court, one motion to dismiss for improper service and a demurrer for failure to state a cognizable cause of action. On February 26, 2010, plaintiff filed a response to defendants’ preliminary objections. Both parties filed briefs and argued their respective positions before the court on April 5, 2010. This matter is now ripe for disposition.

DISCUSSION

Pursuant to Pa.R.C.P. 1028(a), preliminary objections may be filed by any party to any pleading on several grounds, including:

“(1) Lack of jurisdiction over the person of the defendant,

“(2) Failure of a pleading to conform to law or rule of court, and ...

“(4) Legal insufficiency of a pleading (demurrer).” Pa.R.C.P. 1028(a)(l)(2)(4).

In considering preliminary objections, “all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences deducible therefrom, must be accepted as true.” Wurth by Wurth v. City of Philadelphia, 136 Pa. Commw. 629, 638, 584 A.2d 403, 407 (1990). The “court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion.” Penn Title Insurance Company v. Deshler, 661 A.2d 481, 483 (Pa. Cmwlth. 1995).

The plaintiff must state the material facts of a complaint “in a concise and summary form.” Pa.R.C.P. 1019(a). The allegations “must apprise the defendant of the claim being asserted and summarize the essential facts to support [the] claim.” Estate of Swift v. Northeastern Hospital of Philadelphia, 456 Pa. Super. 330, 690 A.2d 719, 723 (1997) appeal denied, 701 A.2d 577 (Pa. 1997). The “lower court has broad discretion in determining the amount of detail that must be averred since the standard of pleading set forth in Rule 1019(a) is incapable of precise measurement.” United Refrigerator Company v. Applebaum, 410 Pa. 210, 213, 189 A.2d 253, 255 (1963).

The relevant facts of this case as alleged by plaintiff in his complaint are as follows. During the summer of 2004, defendants asked plaintiff to remove a large bush in the comer of plaintiff’s property at 399 Cindy Court, Stroud Township, Pennsylvania. Plaintiff granted permission for the removal of the bush with the understanding that the stump would be completely removed at defendants’ expense. In June 2006, defendants removed the bush and left a stump. Defendants were told several times by plaintiff of the prior agreement to completely remove the stump or replace the bush but defendants have not complied. From June 2006, plaintiff “had to chase defendants for compliance and defendant agreed to comply with terms every time they spoke through about September 2006.” Defendants subsequently moved away from the property without removing the stump. Plaintiff mailed defendants several demand letters to defendants’ new address for demand of payment but defendants have yet to resolve this matter. Plaintiff filed this action and demands to recover full replacement cost of the bush at $4,500 plus court costs, all costs of collection and interest.

1. Defendants’ Motion To Dismiss for Failure To Conform to Law Unauthorized Practice of Law

Defendants first ask this court to dismiss plaintiff’s complaint, averring that the complaint is improperly signed by a person who is not a party to the action. Defendants assert that the signature on the complaint appears to be that of John Suto, not Alexander Suto who is named as plaintiff in the complaint. John Suto is not identified in the complaint as a party and is not an attorney of record. We agree.

Pa.R.C.P. 1023.1 (b) states that “[e]very pleading, written motion, and other paper directed to the court shall be signed by at least one attorney of record in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party.” Here, plaintiff has filed the complaint pro se. The signature appearing on the complaint is that of John Suto, not Alexander Suto who is alleged as the plaintiff. John Suto is not identified in the complaint as a party and therefore cannot sign the pleadings on behalf of another without either being a party or an attorney licensed to practice in Pennsylvania, which he is not. Although it may have been the intention of Alexander Suto to identify John Suto as a party to the complaint using the proverbial abbreviation “et al,” plaintiff failed to specifically state the name of all the parties to the complaint and therefore has failed to conform to the law. Defendants preliminary objection will be sustained.

2. Defendants’ Motion To Dismiss for Failure To Conform to Law Failure To Attach a Notice To Defend

Defendants next ask this court to dismiss plaintiff’s complaint, arguing that plaintiff has failed to conform to law in that it has not attached a notice to defend as required by Pa.R.C.P. 1018.1(a). We agree.

Pa.R.C.P. 1018.1 (a) states “[e]very complaint filed by a plaintiff... shall begin with a notice to defend in substantially the form set forth in subdivision (b).” Although the court acknowledges that plaintiff has filed a pro se complaint, plaintiff is still held to the same standards as an attorney filing a complaint in this county. Plaintiff is required to file a notice to defend in accordance with the Rules of Civil Procedure. Defendants’ preliminary objection will be sustained.

3. Defendants ’Motion To Dismiss for Failure To Conform to Law Improper Verification

Defendants further request this court to dismiss the complaint because it lacks a verification as required by Pa.R.C.P. 1024. We agree. Pa.R.C.P. 1024(a) states that “[ejvery pleading containing an averment of fact not appearing of record in the action or containing a denial of fact shall state that the averment or denial is true upon the signor’s personal knowledge or information and belief and shall be verified.” Furthermore,

“The verification shall be made by one or more of the parties filing the pleading unless all the parties (1) lack sufficient knowledge or information or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading. In such cases, the verification may be made by any person having sufficient knowledge or information and belief and shall set forth the source of the person’s information as to matters not stated upon his or her own knowledge and the reason why the verification is not made by a party.” Pa.R.C.P. 1024(c).

Plaintiff’s complaint does not include a verification and therefore does not conform to the rules of court. Defendants’ preliminary objection will be sustained.

4. Defendants ’Motion To Dismiss for Lack of Jurisdiction Over Defendants Improper Service

Defendants next ask this court to dismiss plaintiff’s complaint, averring that this court does not have jurisdiction over the defendants in this matter because defendants were not properly served. Defendants argue that the plaintiff has failed to serve the complaint upon the defendants and file a return of service with the prothonotary. Therefore, plaintiff has not effectuated service upon the defendants and no jurisdiction over the defendants exists. We disagree.

The Pennsylvania Rules of Civil Procedure state that original process shall be served within the Commonwealth only by the sheriff within 30 days after the filing of a complaint. Pa.R.C.P. 400(a); Pa.R.C.P. 401 (a). If the defendants reside outside of the Commonwealth, original service shall be served within 90 days of the filing of the complaint either by:

“(1) a competent adult in the manner provided by Rule 402(a), (2) by mail in the manner provided by Rule 403, (3) in the manner provided by the law of the jurisdiction in which the service is made for service in an action in any of its courts of general jurisdiction . . . .” Pa.R.C.P 404.

Furthermore, when service of original process has been made the sheriff shall make a return of service forthwith and such return of service shall be filed with the prothonotary. Pa.R.C.P. 405(a)(e).

Here, the complaint was delivered to defendant Mary grace Anderson by a deputized sheriff of the Chautauqua County Sheriff’s Department. A return of service was filed on January 27, 2010 and plaintiff has also attached a copy to his response to defendants’ preliminary objections. Defendants’ preliminary objection is denied as moot.

5. Defendants ’Motion To Dismiss for Legal Insufficiency of Pleading Demurrer

Finally, defendants ask this court to dismiss plaintiff’s complaint by filing a demurrer, contending that the allegations in the complaint fail to conform to any legally cognizable cause of action for which recovery may be sought. Although plaintiff makes an attempt at filing a cause of action for breach of contract, we agree with defendants.

A demurrer tests the legal sufficiency of the pleading. In determining whether the factual averments of a complaint are sufficient to state a cause of action, all doubts must be resolved in favor of the sufficiency of the complaint. Slaybaugh v. Newman, 330 Pa. Super. 216, 220, 479 A.2d 517, 519 (1984). A demurrer will be sustained only where the complaint demonstrates with certainty that under the facts averred within, the law will not permit a recovery. Id.; see also Cianfrani v. Commonwealth, State Employees’ Retirement Board, 505 Pa. 294, 479 A.2d 468, 469 (1984). If any theory of law will support the claim raised by the complaint, dismissal is improper. Slaybaugh, supra; Cianfrani, supra.

Reviewing, as we must, the allegations of plaintiff’s' complaint in the light most favorable to plaintiff, it appears that plaintiff filed this action based on a breach of an oral agreement. However, the pleadings fail to specify the fundamental requirements for a breach of contract cause of action. As such, we will sustain defendants’ preliminary objection, but grant plaintiff leave to file an amended complaint. Accordingly, we enter the following order.

ORDER

And now, April 19, 2010, upon consideration of defendants’ preliminary objections to plaintiff’s complaint, it is ordered as follows:

(1) Defendants ’ preliminary obj ection to the unauthorized practice of law is sustained.

(2) Defendants’ preliminary objection for failure to attach a notice to defend as required by Pa.R.C.R 1018.1(a) is sustained.

(3) Defendants’ preliminary objection for failure to attach a verification as required by Pa.R.C.P. 1024 is sustained.

(4) Defendants’ preliminary objection for failure to serve a complaint upon defendants pursuant to Pa.R.C.P. 400-405 and failure to file a return of service with the prothonotary is denied.

(5) Defendants’ preliminary objection in the form of a demurrer for failure to state a cause of action upon which relief can be granted is sustained.

(6) Plaintiff is given leave to file an amended complaint in compliance with this order within 20 days.


author: STEINBERG, J,

text:
    Commonwealth v. Auman

      C.P. of Lehigh County,
    no. CR-1372-2009.

      Anna-Kristie Morffi, deputy district attorney, for Commonwealth.

      Karen Schular, chief deputy public defender, for defendant.
    June 18, 2010
   STEINBERG, J,

On October 1,2009 the appellant, Diane Auman, was found guilty after a jury trial of criminal trespass and guilty after a bench trial of criminal mischief. The appellant was convicted of illegally entering her father’s residence at 1848 Brown Street, Allentown, Pennsylvania by kicking in the back door.

Following the guilty verdicts this court ordered a presentence investigation report. A sentencing hearing was held on March 17,2010, at which time the appellant was sentenced to not less than time-served nor more than 15 months in Lehigh County Prison followed by 12 consecutive months of probation.

On March 26,2010, the appellant filed a timely “post-sentence motion for relief.” In the post-sentence motion, the appellant contends (1) that the verdict was against the weight of the evidence; and (2) that the evidence at trial was insufficient to sustain the verdict of guilty. A hearing on the motion was held on May 24, 2010.

For the reasons discussed below, we find that the motion is without merit.

FACTUAL BACKGROUND

The evidence presented at trial revealed that during the week of March 22, 2009 the defendant began contacting her father, Glenn Auman, for money. Mr. Auman agreed to meet the defendant on March 24, 2009 at a local McDonald’s, where he provided her with $300. Mr. Auman agreed to meet again on March 25,2009 to give the defendant an additional $3,000 to help her re-establish her life in Las Vegas, Nevada. Thereafter, on March 28,2009, the police were called to the residence at 1848 Brown Street, Allentown. Mr. Auman has resided at this property for more than five years, even though the property is owned by his mother, Mildred Elizabeth Ann Auman. Mr. Auman returned home from work around 12:15 a.m. and found the defendant at the house. The back door of the home was kicked in, the front door was unlocked, the lights inside the home were on, and the

defendant was in her old bedroom. The defendant was belligerent and defiant, and she refused to leave. As a result, Mr. Auman called the police. Upon their arrival, the defendant provided to the police a temporary protection from abuse order (PFA) dated March 27,2009, which precluded Mr. Auman from being at the residence. The temporary PFA was granted by the Honorable Carol McGinley on March 27,2009. Officer George Hummel testified that he was unable to confirm the validity of the PFA because he did not have any previous knowledge of its issuance and he was uncertain whether it had ever been served on Mr. Auman. Consequently, the police did not enforce the PFA and the defendant was arrested. Mr. Auman was instructed by the police to not reside at the residence until after he was able to resolve the lingering questions about the validity of the PFA at the courthouse. The PFA was subsequently dismissed on April 2, 2009.

Mr. Auman testified about the history of his relationship with the defendant. He was married to the defendant’s mother until 1985, when they were divorced. About eight years after the divorce the defendant’s mother disappeared, and, to the present time, she has not been located. The defendant believes that Mr. Auman is somehow responsible for her mother’s disappearance. Subsequently, on April 8,2006, the defendant’s brother, to whom she was very close, committed suicide. The defendant again blamed Mr. Auman for her brother’s death. Following these tragedies Mr. Auman’s relationship with his daughter became very strained. Their interactions are always confrontational because the defendant makes accusations regarding the disappearance of her mother and death of her brother. The defendant also has repeatedly returned to the family home without permission. In particular, on April 15, 2008, Mr. Auman returned to his home in the morning and found the defendant in her old bedroom and his house vandalized. Mr. Auman contacted the police. The defendant admitted to causing the damage and she was arrested. Officer Nicholas Erdo testified that the defendant was informed that she was not permitted to be at the residence, and the defendant was later convicted of criminal mischief. As a result of the incident, Mr. Auman changed the locks on the house. On another occasion, on June 19,2008, Mr. Auman returned home from work and found the back door of his residence kicked in, the front door unlocked, and the interior house lights on. Mr. Auman again found the defendant in her old bedroom. He allowed her to spend the night, but in the morning the defendant refused to leave. As a result, Mr. Auman contacted the police and she was arrested. The defendant was convicted for defiant trespass and criminal mischief. Mr. Auman again changed the locks on the house.

Ms. Mildred Auman, the defendant’s grandmother who is 84 years old, testified that she resided at 1848 Brown Street with Mr. Auman until she moved to Country Meadows Assisted Living about five years ago. She further testified that she did not give the defendant permission to be at 1848 Brown Street.

DISCUSSION

I. Sufficiency of the Evidence

A claim challenging the sufficiency of the evidence asserts that there is insufficient evidence to support at least one material element of the crime for which the defendant was convicted. Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa. Super. 2003). In order to determine whether the evidence is sufficient to sustain the verdict, we must examine the evidence in the light most favorable to the Commonwealth, as the verdict winner, and determine whether there was sufficient evidence to allow the fact-finder to find every element of the crime beyond a reasonable doubt.

“In applying [this] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.” Commonwealth v. Taylor, 831 A.2d 661, 663 (Pa. Super. 2003), quoting Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001).

Accordingly, a challenge of this type questions the adequacy of the evidence as to each element of each offense for which the defendant was convicted. Commonwealth v. Johnson, 910 A.2d 60, 65 (Pa. Super. 2006).

A person is guilty of criminal trespass when that person, “knowing that he is not licensed or privileged to do so, he . . . enters, gains entry by subterfuge or surreptitiously remains in any building or occupied structure or separately secured or occupied portion thereof. . . .” Conversely, a person is guilty of criminal mischief when that person “intentionally damages real or personal property of another.” In her motion for post-trial relief the appellant set forth three arguments to support her claim that there was insufficient evidence to support the verdict: (1) that “[t]he defendant’s grandmother... only testified that the defendant could not live at the Brown Street address by herself;” (2) that “[t]he defendant’s father... had no authority to bar the defendant from entering the Brown Street address;” and (3) “[a]t the time of entry, the defendant had a temporary court order signed by the Honorable Carol K. McGinley granting the defendant access to the premises and excluding the defendant’s father, Glen Auman.”

Here, the Commonwealth presented clear evidence that the defendant entered the residence at 1848 Brown Street by kicking in the back door, knowing that she was not licensed or privileged to do so. This evidence came in the form of testimony from Ms. Mildred Auman, Mr. Auman, and Officer Nicholas Erdo, all of whom stated that they directly and expressly informed the defendant that she is not permitted at the residence. Specifically, Ms. Mildred Auman testified that she did not give the defendant permission to live at the residence, in part because the defendant cannot get along with Mr. Auman. Similarly, Mr. Auman informed the defendant on April 15, 2008, June 19, 2008, and March 28, 2009, that she was not allowed at the property. On each of these dates the defendant broke into the residence, where she was later found by her father. Each time the defendant refused to leave the property and had to be forcibly removed by the police, resulting in criminal convictions for criminal mischief after the April 15,2008 incident and for defiant trespass and criminal mischief after the June 19, 2008 incident. Mr. Auman even had the locks changed on the residence after each intrusion in order to dissuade the defendant’s reentry. Lastly, Officer Nicholas Erdo testified that he responded to the domestic disturbance at 1848 Brown Street on April 16, 2008, and that the defendant was specifically instructed by police that she was not permitted at the property.

Additionally, the defendant’s argument regarding the ability of Mr. Auman to restrict her access to the residence lacks any merit. It is understood as a general concept of property law that a tenant is entitled to exclusive possession of the leased premises. In this case, Mr. Auman is a tenant at will at the 1848 Brown Street property because he remains in possession of the property with the consent of the owner. See Lasher v. Allegheny County Redevelopment Authority, 211 Pa. Super. 408, 412, 236 A.2d 831, 833 (1967). As a tenant, the common law gives Mr. Au-man a proprietary interest in the property. Adams Sanitation Company Inc. v. Commonwealth Department of Environmental Protection, 552 Pa. 304, 311, 715 A.2d 390, 394 (1998). Accordingly, Mr. Auman has the authority to exclude the defendant from 1848 Brown Street.

Moreover, we find that the police properly refused to enforce the PFA order. It is the general rule of this Commonwealth that orders entered as a result of the perpetration of fraudulent information are a nullity. In particular, the court in Commonwealth v. Bossche, 324 Pa. Super. 1, 471 A.2d 93 (1984), determined that the defendant’s sentence could be modified because it had been imposed based on the affirmative misrepresentation that the defendant did not have a prior criminal record. The court stated that the sentence was procured by the defendant by fraud, thereby making the sentencing proceedings a nullity. Id. at 7,417 A.2d at 96. See also, Commonwealth v. Harper, 890 A.2d 1078 (Pa. Super. 2006) (court retains its authority to rescind a decision where that decision is obtained through fraud); Shaw v. Shaw, 467 N.Y.S.2d 231, 234 (Oct. 3, 1983) (“[A] judgment obtained through extrinsic fraud ... is considered a nullity ... .The court will have no part in enforcing a judgment which was procured by a fraud practiced on it....”).

In this case, the PFA order did not grant to the defendant lawful access to 1848 Brown Street because the defendant intentionally misled the court in her application for the PFA. Specifically, the defendant identified her current address as 1848 Brown Street. All the evidence presented in this case demonstrates that this representation was erroneous. For this reason, the PFA order was a nullity.

Accordingly, based on the facts and circumstances presented at trial, we find that there was sufficient evidence to support convictions for criminal trespass and criminal mischief.

II. Weight of the Evidence

A challenge to the weight of the evidence is a distinct legal concept from a challenge to the sufficiency of the evidence. Commonwealth v. Davis, 799 A.2d 860, 864 (Pa. Super. 2002). A claim that the verdict is contrary to the weight of the evidence “concedes that there is sufficient evidence to sustain the verdict but nevertheless contends that the trial judge should find the verdict so shocking to one’s sense of justice and contrary to the evidence as to make the award of a new trial imperative.” Commonwealth v. Robinson, 834 A.2d 1160, 1167 (Pa. Super. 2003); see also, Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa. Super. 2003).

“Trial judges in reviewing a claim that the verdict is against the weight of the evidence do not sit as a 13th juror. Rather the role of the trial judge is to determine that ‘notwithstanding all of the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.’” Commonwealth v. Widmer, 560 Pa. 308, 320, 744 A.2d 745, 752 (2000). A trial judge should not be inclined to grant a new trial because of a mere conflict in the testimony.

The defendant sets forth the same three arguments to support her claim that the verdict was against the weight of the evidence: (1) that “[t]he defendant’s grandmother ... only testified that the defendant could not live at the Brown Street address by herself;” (2) that “[t]he defendant’s father... had no authority to bar the defendant from entering the Brown Street address;” and (3) that “[a]t the time of entry, the defendant had a temporary court order signed by the Honorable Carol K. McGinley granting the defendant access to the premises and excluding the defendant’s father, Glen Auman.”

As we stated above, the defendant’s three arguments are not supported by the record. From the evidence, it is reasonable to have concluded that the appellant entered the premises at 1848 Brown Street without permission from her father or her grandmother, and that she intentionally damaged the back door when she kicked it in. The fact-finder could have readily concluded that the defendant was guilty of criminal trespass and criminal mischief. Accordingly, the defendant’s request for a new trial is denied.

ORDER

And now, June 18,2010, it appearing that the appellant has filed a post-sentence motion in the above-captioned matter; and for the reasons set forth in the accompanying opinion; it is hereby ordered the post-sentence motion is denied.

      . 18 Pa.C.S. §3503(a)(l)(i).

      . 18 Pa.C.S. §3304(a)(5).

      . N.T.T. 52-53.

      . N.T.T. 9/30/09, 87-88.

      . N.T.T. 54, 59.

      . N.T.T. 59.

      . N.T.T. 60.

      . N.T.T. 102.

      . N.T.T. 134.

      . N.T.T. 102.

      . N.T.T. 65.

      . N.T.T. 50, 51.

      . N.T.T. 50, 67.

      . N.T.T. 49-50.

      . N.T.T. 49, 70.

      . N.T.T. 47.

      . N.T.T. 47.

      . N.T.T. 93-94.

      . N.T.T. 47.

      . N.T.T. 48.

      . N.T.T. 48.

      . N.T.T. 48.

      . N.T.T. 52.

      . N.T.T. 97-98.

      . N.T.T. 52.

      . N.T.T. 88.

      . 18 Pa.C.S. §3503(a)(l)(i).

      . 18 Pa.C.S. §3304(a)(5).

      . Post-sentence motion, ¶4(3).

      . Id. at f(4)(b).

      . Id at ¶(4)(0).

      . Post-sentence motion, ¶4^).

      . Id. at K(4)(b).

      . Id. atf(4)(c).