author: ZULICK, J.,

text:
    Duzgun v. Duzgun

      Kimberly Giombetti, for plaintiff.

      Kimberly Fedrigon, for defendant.
    September 29, 2005
   ZULICK, J.,

This case comes before the court on Wife’s request for exclusive possession of the marital residence. Wife filed this divorce action on March 10, 2005, and filed a petition for exclusive possession of the home on June 20, 2005. A rule returnable was issued on the petition; Husband filed an answer on July 11, 2005, and the matter was scheduled for hearing on September 1,2005. That date was continued to September 23, 2005, when the parties appeared before the court for a hearing.

FINDINGS OF FACT

(1) Plaintiff, Concertina Duzgun, (Wife), and defendant, Ercan Duzgun, (Husband), were married on February 8, 1988, in New York.

(2) Two children were bom of their marriage, John Ali Duzgun, bom March 25,1994, now 11 years of age, and Isabella Duzgun, born April 20, 1998, now 7 years of age.

(3) The parties are the owners of a home at 150 Mattiola Road, Bartonsville, Pennsylvania, where they have resided as a family since 1992.

(4) For the past year, Husband has been sleeping in the basement of the home, and Wife has been sleeping upstairs.

(5) Husband is an independent contractor driving a route for Federal Express. In 2004, he had gross income of $96,956, but after deduction of business expenses, he netted $34,672.

(6) Husband recently hired another driver to cover this route for him to allow Husband to obtain a job as a correctional officer for the Monroe County Correctional Facility. He will earn less at this job than he earns driving for Federal Express but will receive full health benefits for himself and his family. He expects to begin that job in early October and will be on the 12 midnight-8 a.m. shift, which he believes will allow him to spend more time with his children.

(7) Wife is a certified nurses aide, who until recently was employed by the Visiting Nurses Association on a part-time basis. She left that job to obtain medical coverage for herself and her family, and now is working for the Pleasant Valley School District in a full-time job earning $12,800 per year. She hopes to return to the V.N.A. position on a full-time basis where she will earn $ 18,000 per year and have health insurance for herself but not her children.

(8) Wife spends most of her time in the home in her bedroom upstairs. Husband is spending most of his time in his bedroom in the basement. The parties share the kitchen but they try not to use it at the same time. Husband comes upstairs to use the shower because “he has no shower curtain” on his shower.

(9) Wife has brought this petition for the following reasons:

(a) living in the same household while going through the divorce action creates an emotional strain for her;

(b) she has heard Husband talking to a girlfriend on the telephone which causes her anxiety;

(c) she believes that Husband speaks inappropriately to the children about the parties’ marital problems.

(10) Husband pays the mortgage on the property which is a home equity loan with a principal balance of approximately $40,000 and monthly payments of interest only of $210. Husband also pays the electric bills and, in the past, has paid for oil delivery.

(11) Husband is paying for food and pays for the children’s medical expenses not covered by insurance.

(12) Wife pays for her own cell phone bill and the household telephone bill. She also buys food for the house and buys the children’s clothing.

(13) Neither party has been violent toward the other, nor has either party threatened violence toward the other.

(14) Wife cleans the portion of the house that she is using. Husband maintains the grounds of the property and the exterior of the home. Husband has also been keeping his living area of the home clean in recent months.

DISCUSSION

The Pennsylvania Divorce Code provides in 23 Pa.C.S. §3502(c), as follows:

“(c) Family home — The court may award, during the pendency of the action or otherwise, to one or both of the parties the right to reside in the marital residence.”

The predecessor of this provision of the Divorce Code was considered in the case of Laczkowski v. Laczkowski, 344 Pa. Super. 154, 496 A.2d 56 (1985), there the trial court awarded possession of the marital home to wife before the entry of the divorce decree. In the Laczkowski case, wife and her minor daughter were forced to move out of the family home due to the husband’s harassment, mental cruelty, intimidation, and threats of violence. The Superior Court stated:

“The equitable powers of the courts under our Divorce Code are extremely broad, and since the Code unequivocally recognizes the right of one spouse to live in the family residence after divorce, there is no discernible reason for precluding such an award in a pendente lite situation. While our decision may appear to have wide reaching ramifications, we are mindful that the exclusion of a spouse from the marital home during the pendency of a divorce proceeding is a harsh remedy that will not be awarded cavalierly. The need for such an award must be clearly evident in the facts of each case.” Id. at 166-67, 496 A.2d at 62.

The Laczkowski decision was decided in 1985. Since that time, our appellate courts have not addressed the propriety of the removal of a spouse from the family home pursuant to 23 Pa.C.S. §3502(c). Perhaps this is because disputes between spouses over possession of the family home which escalate to an episode of abuse as defined in the Protection from Abuse Act, 23 Pa.C.S. §6102, are commonly addressed in protection from abuse proceedings.

Here there is no allegation of spousal or child abuse. The parties are separated but living under the same roof. They have reached an accommodation — Wife sleeps upstairs in her bedroom and Husband sleeps downstairs in the basement. They have worked out financial arrangements with Husband paying the mortgage, electricity, oil bills and a portion of the food expenses. Wife pays for her own telephone bills, some of the food expenses and occasionally heating expenses. Wife pays for the children’s dental bills and Husband pays for medical bills.

Wife’s primary complaints are that Husband occasionally talks on the telephone with his girlfriend in the presence of Wife and the children. She also states that the tension in the household is causing the parties’ son, age 11, to be depressed and despondent.

Husband counters that because he is in the home he is able to participate more fully in his children’s lives and that their son is usually in a good mood, and participates in soccer and other sports.

Wife admitted that she has not taken their son to a psychiatrist or psychologist or to the school guidance counselor. She also stated that Husband has been contributing to household bills and has been keeping his area of the house clean.

Both parties testified that they did not have significant savings that would make it easy for them to find new housing. The only asset of significant value in the divorce is the house itself. While Husband is earning a higher salary than Wife, he has been paying the bulk of the household bills. Neither party has the financial ability to easily afford a separate residence. Wife suggested that Husband keeps large amounts of cash. However, this was not proven.

I do not find that Wife has established a clear need to exclude Husband from the residence. I recognize that there is tension in the household due to the fact that the marriage is ending and the parties are separated while living under the same roof. To avoid further conflict, Husband should minimize his contact with wife, take his showers downstairs and use the kitchen when Wife is not there. His telephone calls should be made in the privacy of his room. If he does not heed this advice, and the situation worsens, Wife may have a remedy under the law.

CONCLUSIONS OF LAW

(1) Wife has failed to meet her burden of proof in her request to exclude Husband from the parties’ jointly owned home.

ORDER

And now, September 29,2005, following a hearing, it is ordered that Wife’s petition for exclusive possession of the marital home is denied.


source: Caselaw Access Project

author: COTTONE, S.J.,

license: Public Domain

text:
    Mackin v. Arthur J. McHale Heating & Air Conditioning Company Inc.

      Richard A. Russo and Frank J. Bolock Jr., for plaintiff.

      Michael F. Frisbie, for defendants.
    May 19, 2005
   COTTONE, S.J.,

In the instant action, the defendants, Arthur J. McHale Heating and Air Conditioning Company Inc. and Justin Burkhart, filed preliminary objections to the amended complaint filed by the plaintiff, Deborah Mackin, administratrix of the estate of Thomas Mackin. The amended complaint avers that, on or about October 2,1998, the decedent, Thomas Mackin, was stopped in traffic when a vehicle driven by Justin Burkhart collided with his vehicle. It is alleged that, at the time of the accident, Mr. Burkhart was the agent, servant, workman and/or employee of the defendant McHale Heating, and was acting within the course and scope of his employment.

The amended complaint avers that, as a result of the defendants’ negligence, Mr. Mackin suffered serious, disabling and permanent injuries including, inter alia, a concussion, herniated disc, radiculopathy, post-traumatic headaches, post-concussion syndrome and depression. The plaintiff claims that, because of these injuries, the decedent was prescribed narcotic medications upon which he became dependent. Due to his inability to alleviate his pain, the decedent allegedly began to suffer from a dependence upon the narcotic medication he was taking. Mr. Mackin eventually committed suicide on August 26, 2002. The plaintiff avers that his suicide was the direct result of the injuries caused by the October 2,1998 accident and his inability to alleviate his resulting pain and depression. The complaint has been amended to include wrongful death and survival claims.

The defendants filed preliminary objections to this amended complaint in the nature of a demurrer and a motion to strike paragraph 12(m) for failure to comply with our rules of procedure. It is these preliminary objections which this court is now called upon to address.

When confronted with preliminary objections in the nature of a demurrer, a court must determine whether, on the facts averred, there is no possibility of recovery under the law. Sutton v. Miller, 405 Pa. Super. 213, 221, 592 A.2d 83, 87 (1991). A court must accept as true all well-pleaded facts and all reasonably deducted inferences therefrom. DeSantis v. Swigart, 296 Pa. Super. 283, 286, 442 A.2d 770, 772 (1982). The complaint must be reviewed in a light most favorable to the non-moving party. Aetna Electroplating Co. Inc. v. Jenkins, 335 Pa. Super. 283, 285, 484 A.2d 134, 135 (1984). A demurrer should be sustained where the case is clear and free from doubt. American Housing Trust III v. Jones, 548 Pa. 311, 316, 696 A.2d 1181, 1184 (1997).

The defendants first assert that the plaintiff has not set forth a viable cause of action against them for wrongful death and survival. They argue that the plaintiff should not be able to recover for the decedent’s suicide since they had no duty to prevent it, as it was not foreseeable.

“Whether a defendant owes a duty of care to a plaintiff is a question of law.” Kleinknecht v. Gettysburg College, 989 F.2d 1360, 1366 (3d Cir. 1993). “It has long been hornbook law that a duty arises only when one engages in conduct which foreseeably creates an unreasonable risk of harm to others.” Amarhanov v. Fassel, 442 Pa. Super. 111, 115, 658 A.2d 808, 810 (1995). “[Bjecause a tort-feasor must take the victim as he finds him, the tort-feasor is liable for the full extent of the victim’s injuries. Thus, a tort-feasor remains responsible for the victim’s injuries, even if the victim’s particular sensibility resulted in more harm than the tort-feasor could have foreseen.” Lebesco v. SEPTA, 251 Pa. Super. 415, 423 n.2, 380 A.2d 848, 852 n.2 (1977). (citations omitted) Where a tort-feasor’s conduct is a substantial factor in bringing harm to an individual, the fact that the tort-feasor neither foresaw, nor should have foreseen, the extent of the harm or even the manner in which it occurred does not necessarily prevent him from being liable. Trude v. Martin, 442 Pa. Super. 614, 628, 660 A.2d 626, 633 (1995); Ford v. Jeffries, 474 Pa. 588, 595, 379 A.2d 111, 114(1977).

As a general rule, suicide is not considered to be a legitimate basis for recovery in wrongful death cases in Pennsylvania. McPeake v. Cannon, 381 Pa. Super. 227, 553 A.2d 439 (1989). This rule does recognize certain exceptions not necessarily applicable here. Id.

This court’s research does not reveal any Pennsylvania cases addressing whether there is a cause of action against a tort-feasor from the suicide of a party from negligently inflicted personal injuries. This instant matter, therefore, appears to be a case of first impression.

The plaintiff urges this court to follow the line of cases from other jurisdictions which permit recovery for suicide arising out of negligently inflicted injuries. See Porter v. Murphy, 792 A.2d 1009 (Del. Super. 2001); Best Homes Inc. v. Rainwater, 714 N.E.2d 702 (Ind. Ct. App. 1999); Tate v. Canonica, 180 Cal. App. 2d 898, 5 Cal. Rptr. 28 (Cal. Ct. App. 1960).

These jurisdictions have recognized that where a negligent wrong resulted in suicide induced by mental illness which is so severe that a person cannot control his conduct, the suicide may not be considered an intervening cause so as to preclude recovery.

Our review of the Delaware Superior Court case of Porter, supra, indicates that its facts are substantially similar to those presented herein. In Porter, the decedent was struck from behind while operating his car, which was stopped at an intersection. The injuries he sustained in the accident ultimately lead to his depression and resulted in his suicide. This case of first impression in Delaware discussed the standard of proximate cause applicable in wrongful death actions predicated upon a negligently inflicted injury followed by suicide. The Delaware Superior Court rejected the view that suicide is always an independent intervening act, relieving a tortfeasor of liability. It found that this approach was too restrictive. Supra at 1015. The Porter court adopted the reasoning in Tate, supra, wherein the California Court of Appeals held that:

“[Wjhere the negligent wrong only causes a mental condition in which the injured person is able to realize the nature of the act of suicide and has the power to control it if he so desires, the act then becomes an intervening force and the wrongdoer cannot be held liable for the death. On the other hand, if the negligent wrong causes mental illness which results in an uncontrollable impulse to commit suicide, then the wrongdoer may be held liable for the death.” Tate at 915, 5 Cal. Rptr. at 40.

This reasoning has been met with approval and consequently adopted in other jurisdictions. See Estate of Ko by Hill v. Sears Roebuck & Co., 982 F. Supp. 471 (E.D. Mich. 1997); Orcutt v. Spokane County, 58 Wash. 2d 846, 364 P.2d 1102 (1961).

We note that the instant action is distinguishable from the facts presented in McPeake, supra. The McPeake court found that it would be inappropriate to impose liability upon an attorney for a client’s suicide, which allegedly occurred from his negligent representation, since to do so would expose an attorney to litigation. The court believed that this could result in a chilling effect on our legal system. McPeake held that, as a matter of public policy, if attorneys were exposed to the possibility of suit by unstable criminal defendants this would discourage them from representing such defendants.

In Porter, the Delaware Superior Court found that the view that suicide is always an independent intervening act relieving a tort-feasor of liability is too restrictive. We concur. This court believes that in circumstances such as presented herein, a jury should be given an opportunity to determine whether the defendants’ actions were the proximate cause of the decedent’s suicide. The defendants’ demurrer is, therefore, denied.

Finally, since the plaintiff has agreed to withdraw paragraph 12(m) of the amended complaint, this court need not address the defendants’ request to strike this paragraph. An appropriate order follows.

ORDER

Now, May 19, 2005, it is hereby ordered and decreed that the defendants’ preliminary objection in the nature of a demurrer is denied. It is further ordered that paragraph 12(m) of the first amended complaint is stricken. The defendant is allowed 20 days from the date of this order to file an answer to the amended complaint.


author: NEW, J.,

text:
    Vansouphet v. Justman

      Derek R. Layser, for plaintiffs.

      Robert M. Britton, for defendants.
    May 12, 2005
   NEW, J.,

This court properly denied plaintiffs’ petition to strike judgment of non pros because plaintiff failed to file a timely certificate of merit and offered no good cause for the delay.

PROCEDURAL AND FACTUAL HISTORY

Vutanna Kai Vansouphet (plaintiff), along with her husband, Warren Kerschbaum, initiated the present medical malpractice action against multiple defendants for the eventual loss of her fetus. The defendants include Judith Justman M.D., Amy Wirtner M.D., Rebecca Gould M.D., and Thomas Jefferson University Hospital. On October 27,2002, plaintiff presented to defendant Thomas Jefferson with vaginal bleeding; she was pregnant at the time. Upon arrival, plaintiff was seen by Thomas Jefferson University Hospital emergency department physicians, defendants Drs. Justman and Wirtner. Plaintiff was subsequently seen by the on-call OB-GYN, defendant Dr. Gould. After being examined, a diagnosis of spontaneous abortion in progress was made. Plaintiff was then given, among other drugs, Misoprostol. Misoprostol is issued for the termination of pregnancy and is also used for the induction of labor. Misoprostol can cause serious fetal harm when administered to pregnant women. No ultrasound was taken of plaintiff. On November 6, 2002, plaintiff was examined by Dr. Laurie Gerstein, as part of a follow-up visit. An ultrasound was taken. On January 10,2003, an additional ultrasound was taken and revealed a live fetus. On January 11, 2003, plaintiff delivered a 19-week gestation, 53.93 gram female stillborn fetus. Plaintiff alleges that the use of Misoprostol, along with the failure of the examining doctors on October 27, 2002, to administer an ultrasound, contributed to the loss of the fetus.

Plaintiffs filed a writ of summons on November 16, 2004. A complaint was filed on December 23, 2004. As of 60 days later, February 21, 2005, no certificates of merit or motions to extend time to file certificate of merit had been filed. Subsequently, on February 24,2005, defendant Justman filed, with the prothonotary’s office, a praecipe for the entry of judgment of non pros, which was entered that day. On February 25, 2005, defendants Wirtner, Gould, and Thomas Jefferson filed for, and received, a judgment of non pros against plaintiffs. On March 15, 2005, plaintiffs filed a motion to strike the judgment of non pros. By an order dated April 8, 2005, this court denied plaintiffs’ motion to strike the judgment of non pros as to all defendants. Plaintiffs now appeal that order.

LEGAL ANALYSIS

The denial of a petition to open and/or strike judgment of non pros is subject to the abuse of discretion standard; an exercise of that discretion will not be reversed on appeal unless there is proof of manifest abuse thereof. Hoover v. Davila, 862 A.2d 591 (Pa. Super. 2004). Pennsylvania Rule of Civil Procedure 1042.3(a) contains the requirement that in any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the plaintiff shall file a certificate of merit within 60 days after the filing of the complaint. Hoover at 593. Rule 1042.6 allows for the prothonotary to enter a judgment of non pros against the plaintiff for failing to file a certificate of merit within the required time. Pa.R.C.P. 1042.6. The procedure to open a judgment of non pros entered pursuant to Pa.R.C.P. 1042.6 is governed by Pa.R.C.P. 3051. Koken v. Lederman, 840 A.2d 446 (Pa. Commw. 2003). In order to open the judgment, Rule 3051 requires: (1) the petition to open be timely filed; (2) there be reasonable or justifiable excuse for any delay, and (3) there be a meritorious cause of action.

In the case sub judice, the medical malpractice action was commenced on November 16, 2004, by a writ of summons. On December 23, 2004, a complaint was filed. Pursuant to Pa.R.C.P. 1042.3, plaintiffs had 60 days from December 23, 2004, to file a certificate of merit, or a motion to extend time for the filing of a certificate of merit. The 60 days expired on February 21, 2005. As of February 24 and 25, 2005, no certificates of merit or motions to extend the time for filing a certificate of merit were filed. Defendants filed praecipes for entry of judgment of non pros on February 24 and 25, 2005. A judgment of non pros was properly entered against plaintiffs.

As stated above, the requirements for the opening of a judgment of non pros pursuant to Pa.R.C.P. 3051 are: (1) the petition to open be timely filed; (2) there be reasonable or justifiable excuse for any delay; and (3) there be a meritorious cause of action. Plaintiffs filed the motion to strike judgment of non pros 19 days after the judgment of non pros was entered, on March 15, 2005. This court considers 19 days as timely. Therefore, element one of Pa.R.C.P. 3051 is satisfied.

The next requirement to open a judgment of non pros is a reasonable or justifiable excuse for the delay. Plaintiffs’ explanation as to why they failed to file a certificate of merit is “attorney administrative oversight” and “mistake.” Additionally, plaintiffs offered no reason for their failure to file a motion to extend the time for filing a certificate of merit. In Parkway Corp. v. Edelstein, 861 A.2d 264, 269 (Pa. Super. 2004), the Superior Court held that plaintiffs “have produced no ‘reasonable explanation or legitimate excuse’ (Pa.R.C.P. 3051(b)(2)) for their omissions, offering only ignorance as justification. We therefore find no abuse of discretion in the trial court’s entry of the judgment of non pros.” In the case sub judice, plaintiffs’ explanation of “attorney administrative oversight” and “mistake” is not a reasonable or justifiable excuse. Therefore, the second element under Pa.R.C.P. 3051 has not been met. As for the third prong of Pa.R.C.P. 3051, it is unnecessary to address because one of the elements was not met.

Plaintiff also raised the argument that the petition to open judgment of non pros should be granted because there would be no prejudice to the defendants. Defendants are correct in stating that a standard of whether defendants would be prejudiced is not applicable regarding plaintiffs’ failure to file a certificate of merit. The Honorable Judge Wettick of the Allegheny Court of Common Pleas stated,

“If a court were to apply Rule 126 to a petition to open a judgment of non pros for failure to file a certificate of merit unless the defendant can show prejudice, the petition would almost always be granted. Defendants are not going to be able to show that they were prejudiced by the late filing of a certificate of merit regardless of whether the delay involves 10 days, 30 days, or 90 days. Consequently, his use of a prejudice standard would eliminate the rule’s deadlines for filing certificates of merits. If, on the other hand, the court were to apply Rule 126, using a cause-shown standard, the plaintiff would be no better off than if the court looked only to Rule 3051 which allows relief where there is a reasonable explanation or legitimate excuse for the inactivity.” Helfrick v. UPMC Shadyside Hospital, 65 D.&C.4th 420, 424-25 (2003).

Therefore, plaintiffs’ contention that granting an opening of the judgment of non pros would not be prejudicial is irrelevant. This court adopts Judge Wettick’s analysis of Pa.R.C.P. 126.

Wherefore, for the above mentioned reasons, this court’s order should be affirmed.

      . See plaintiffs’ petition to strike entry of judgment of non pros, paragraph 7.


author: GENTILE, Member,

text:
    Office of Disciplinary Counsel v. Giba

      Disciplinary Board Docket no. 52 D.B. 2003.
    March 23, 2005
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

GENTILE, Member,

Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On April 22,2003, Office of Disciplinary Counsel filed a petition for discipline against respondent, Paul Robert Giba. The petition alleged that respondent misappropriated client funds. Respondent filed an answer and request to be heard in mitigation on July 28, 2003.

A disciplinary hearing was held on April 26 and May 26, 2004, before Hearing Committee 4.13 comprised of Chair Matthew R. Wimer, Esquire, and Members David A. Regoli, Esquire, and Thomas S. Talarico, Esquire. Respondent was represented by Richard H. Lindner, Esquire.

Following the submission of briefs by the parties, the committee filed a report on October 14,2004, finding that respondent engaged in misconduct violative of Rules of Professional Conduct 1.15(a) and 8.4(c), and recommending that respondent be suspended for two years.

Respondent filed a brief on exceptions on November 3, 2004, and requested oral argument. Petitioner filed a brief opposing respondent’s exceptions on November 19, 2004.

Oral argument was held on January 10,2005, before a three-member panel of the Disciplinary Board chaired by Gary G. Gentile, Esquire, with Members Martin W. Sheerer, Esquire and Nikki P. Nordenberg.

This matter was adjudicated by the Disciplinary Board at the meeting on January 19,2005.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 1400,200 North Third Street, Harrisburg, Pennsylvania 17101, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with power and the duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent, Paul Robert Giba, was born in 1956 and was admitted to practice law in the Commonwealth in 1982. He maintains his office at 20 Donati Road, #101, Pittsburgh, PA 15241-1000. He is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

(3) Respondent has no prior history of discipline.

(4) Sometime prior to January 31, 1997, Attorney Jonathan E. Turak, a member of the bar of the Supreme Court of Pennsylvania and the West Virginia State Bar whose office is located in West Virginia, entered into an informal arrangement with respondent, whereby Attorney Turak would refer to respondent cases as to which either Pennsylvania or the United States District Court for the Western District of Pennsylvania was the proper forum for filing.

(5) From January 31, 1997, until sometime prior to March 1, 2001, Attorney Turak referred the following four client matters to respondent:

(a) Christopher Stilwell;

(b) Norman and Terra Crook;

(c) Teresa Smith; and

(d) Jerry Shelton.

(6) With regard to Mr. and Mrs. Crook, Ms. Smith and Mr. Shelton, there was an agreement between Attorney Turak and respondent to equally divide a contingent fee.

(7) With regard to Mr. Stilwell, it was agreed between Attorney Turak and respondent that respondent should receive 60 percent of a contingent fee, and Attorney Turak should receive 40 percent.

(8) From October 1, 1999, through mid-September 2002, respondent was at various times entrusted with funds in 15 different client matters including those referred to in paragraph 5, above, and for 11 other clients.

(9) Respondent misappropriated funds in his IOLTA account for his own purposes from approximately December 16, 1999, until September 30, 2002. On numerous occasions he was out of trust in excess of $100,000 and the highest amount he was out of trust reached $175,659.63.

(10) On November 20, 2001, Office of Disciplinary Counsel sent a letter of inquiry to respondent concerning a complaint filed by Attorney Turak concerning the Stilwell, Crook, Smith and Shelton matters.

(11) Respondent promptly notified all of his clients referred to in the petition for discipline of the settlement that occurred, via itemized settlement statements that included the gross settlement amount, legal fees, expenses and costs to be reimbursed to respondent, amounts to be paid to third persons and the net proceeds to the clients.

(12) Attorney Turak was promptly notified by respondent of the settlements that occurred in regard to the Stilwell, Crook, Smith and Shelton matters.

(13) Most of the misappropriations involved funds marked for reimbursement of subrogation and health care claims, but some of the misappropriations involved payments due to clients. From time to time, the IOLTA account contained funds that were appropriately due to respondent as fees which he did not take.

(14) During the period of his trust account deficiencies, respondent sometimes left funds in his IOLTA accounts that were due him for fees and/or as reimbursements for costs he had advanced rather than promptly disbursing the same to himself. Such funds were not sufficient to fully reimburse the account for the deficiencies caused by respondent’s misappropriation.

(15) During relevant times, respondent did not maintain a running balance in the check registers for his IOLTA accounts or otherwise keep proper ledgers for said accounts.

(16) Four of the client matters were resolved and outstanding entrustments satisfied before respondent received the November 20, 2001 letter of inquiry. Ten of the client matters were resolved and outstanding entrustments satisfied during the period between late November 2001 and June 11, 2002, and the last entrustment was resolved and satisfied by payment to a third-person subrogee on September 12, 2002.

(17) During the period after he received the November 20, 2001 letter of inquiry, through September 12, 2002, respondent completely resolved the deficiency in his IOLTA account using his own personal funds or funds obtained from other legitimate sources, such as loans from his family.

(18) Respondent made substantial efforts in several cases to compromise and/or cause the release of subrogation claims, and to assure compliance by health care providers with statutory cost containment requirements in automobile accident cases. Such efforts resulted in substantial savings to respondent’s clients.

(19) Respondent experienced staff and administrative problems during relevant times of his misconduct that adversely impacted his maintenance of, and record-keeping for, his trust accounts.

(20) Respondent experienced serious family issues during the time frame of his misconduct.

(21) Respondent’s minor daughter has albinism, eye deficiencies and cardiac problems, respondent’s stepdaughter exhibited disciplinary problems, and respondent’s wife engaged in an extra-marital affair, which severely strained their relationship.

(22) Respondent developed a major depression that led to an inability to function at work.

(23) In December 2001, respondent came under the care of a psychologist, Dr. William Cagney, who subsequently referred respondent to a psychiatrist, Dr. Stuart Burstein, for additional treatment.

(24) Dr. Burstein and Dr. Cagney diagnosed respondent with major depression. Dr. Cagney continued treating respondent with psychotherapy on a regular basis from December 2001 through May 2003. While Dr. Cagney served as respondent’s primary psychotherapist, Dr. Burstein saw respondent on five occasions for the purpose of medication management and support psychotherapy.

(25) Dr. Burstein prescribed Celexa to treat respondent’s depression. That prescription continues to date.

(26) Dr. Burstein assumed the role of respondent’s primary therapist in August 2003.

(27) Dr. Burstein testified at the disciplinary hearing and opined that, beginning in 1997 and continuing though the period of his misconduct, respondent suffered from major depression, complicated by respondent’s obsessive-compulsive and narcissistic personality traits.

(28) Respondent’s depression included symptoms of repressed anger, despair, feelings of hopelessness and helplessness, loss of interest in activities, lack of energy, sleep and appetite problems.

(29) Dr. Burstein opined that respondent’s depression allowed respondent’s obsessive-compulsive and narcissistic personality traits to surface and play a more prominent role in his conduct during relevant times.

(30) Dr. Burstein opined that respondent’s major depression, in conjunction with the personality traits, impaired respondent’s judgment and caused his mishandling of funds.

(31) Petitioner presented the expert testimony of Robert Wettstein M.D.

(32) Dr. Wettstein’s testimony and report confirmed Dr. Burstein’s diagnosis of respondent.

(33) Dr. Wettstein opined that depression does not ordinarily cause illegal or dishonest conduct such as that engaged in by respondent, but he acknowledged that depression can accentuate personality traits, and in combination, these psychological infirmities can cause dishonest conduct.

(34) Dr. Burstein and Dr. Wettstein opined that respondent’s depression is being effectively treated and is in remission.

(35) Respondent presented the testimony of five character witnesses.

(36) Attorneys William R. Caroselli, KevinE. Leonard, Richard J. Joyce, Richard J. Schubert and Scott R. Melton all testified as to respondent’s good character and the aberrational nature of the misconduct engaged in by respondent.

(37) Respondent presented character letters from five additional witnesses.

(38) Respondent expressed sincere remorse and accepts full responsibility for his misconduct.

III. CONCLUSIONS OF LAW

By his conduct as set forth above, respondent violated the following Rules of Professional Conduct:

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

(2) R.P.C. 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

(3) Respondent met his burden of proof pursuant to Office of Disciplinary Counsel v. Braun, 520 Pa. 157, 553 A.2d 894 (1989), showing by clear and convincing evidence that his psychiatric disorder was a substantial cause of his misconduct.

IV. DISCUSSION

It is uncontested that respondent engaged in the systematic misappropriation of entrusted funds from approximately December 1999 until September 2002. The deficiency in his IOLTA account was in excess of $100,000 for a substantial period of time and rose to $175,000 in August 2001. Respondent failed to hold entrusted funds separate from his own and engaged in dishonest conduct. In the absence of compelling mitigating factors, this conduct would warrant disbarment. Office of Disciplinary Counsel v. Lucarini, 504 Pa. 271, 472 A.2d 186 (1983); Office of Disciplinary Counsel v. Monsour, 549 Pa. 482, 701 A.2d 556 (1997). Respondent presented credible mitigating evidence, the most significant of which was his major depression that resulted in his inability to carry out his duties as an attorney, thus causing a financial crisis in his family, which ultimately led him to make the improper decision to misappropriate funds. Respondent intended to pay the funds back and hoped he would not get caught, but his misconduct was out of control and led to investigation by Office of Disciplinary Counsel.

Respondent presented the expert testimony of Dr. Stuart Burstein, his treating psychiatrist. Dr. Burstein testified that respondent suffered from a major depressive disorder and has obsessive-compulsive and narcissistic personality traits. Dr. Burstein credibly testified that respondent’s psychiatric disorder caused his misconduct, in that it led him to make improper decisions concerning the entrusted funds. Respondent continues to receive therapy for his depression, which Dr. Burstein described as being in remission, due to respondent’s efforts at medication and cognitive therapy. Petitioner’s expert, Dr. Robert Wettstein, essentially agreed with this diagnosis, and though he stated that depression does not cause dishonest conduct, he did agree that depression can accentuate underlying personality traits which may lead to dishonest conduct. Dr. Wettstein did not provide testimony which would negate the clear and convincing testimony of Dr. Burstein. The board concludes that respondent met the Braun standard by providing clear and convincing evidence that his psychiatric disorder substantially caused his misconduct. Respondent is entitled to mitigation of discipline.

Respondent provided evidence of other mitigating factors. Respondent was experiencing difficult family problems at the time of the misconduct, as well as substantial administrative problems with his office and financial accounts. He has taken appropriate steps to rectify his office problems, such as opening a new trust account and adopting a new way of keeping records in accordance with the Rules of Professional Conduct. Respondent regularly reviews his bank statements and reconciles the statements. He has a new paralegal to assist with office administration. Respondent has no prior history of discipline in his 23 years of legal practice, he enjoys an excellent reputation in the legal community, he expressed sincere remorse and made full restitution.

Review of sanctions imposed in similar cases indicates that suspensions ranging from one year to at least three years have been imposed. In the matter of Office of Disciplinary Counsel v. Foti, 89 D.B. 2001, 835 Disciplinary Docket no. 3 (Pa. July 24, 2003), the attorney was suspended for three years after he misappropriated and converted client funds and failed to deliver settlement proceeds to clients. The attorney suffered from depression at the time of the misconduct. In the matter of In re Anonymous No. 56 D.B. 94, 28 D.&C.4th 398 (1995), an attorney was suspended for three years after she took monies that were to be deposited into clients’ accounts in order to fund her cocaine addiction. This occurred over the course of four years. In the matter of In re Anonymous No. 66 D.B. 84, 17 D.&C.4th 414 (1992), an attorney deposited estate funds into a personal account and withdrew the monies to satisfy personal obligations. This attorney suffered from bi-polar disorder. He received a suspension of two and a half years. In the matter of Office of Disciplinary Counsel v. Durney, 55 D.B. 2003, 961 Disciplinary Docket no. 3 (Pa. Oct. 15, 2004), the attorney misappropriated funds from an estate. He failed to meet the Braun standard, but showed other persuasive mitigating factors. The court suspended this attorney for one year with one year of probation.

Respondent’s misappropriation of funds affected not only his clients, but severely impacted the reputation of the legal community as a whole. Considering the gravity of this misconduct in light of the respondent’s psychiatric disorder and other mitigating factors, the board is persuaded that a suspension of two years is appropriate and serves to protect the public and maintain the integrity of the disciplinary system.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, Paul Robert Giba, be suspended from the practice of law for a period of two years.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Member O’Connor dissented and would recommend a stayed suspension with a practice monitor and continue treatment.

Board Member Wright did not participate in the January 19, 2005 adjudication.

ORDER

And now, June 16, 2005, upon consideration of the report and recommendations of the Disciplinary Board dated March 23, 2005, it is hereby ordered that Paul Robert Giba be and he is suspended from the bar of this Commonwealth for a period of two years, and he shall comply with all the provisions of Rule 217, Pa.R.D.E.

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


author: KELLER, J.,

text:
    Schmehl v. Wegelin

      Sharon Gray, for plaintiffs.

      Gregory Henry, for defendant Wegelin.
    July 21, 2004
   KELLER, J.,

STATEMENT OF THE CASE

Mother (Ann Wegelin) and Father (Perry Schmehl) were married on January 4,1992, in Berks County, Pennsylvania. Two children, Sara A. Schmehl (born 11/6/98) and Samuel C. Schmehl (born 3/17/95), were bom of the marriage. By decree dated April 11,2003, the parties were divorced. On November 13, 2002, the court entered a custody order by which the parties are operating under to this date.

On April 29, 2005, the plaintiffs, paternal grandparents, filed a custody action against Mother, as Mother would not allow the children to visit with paternal Grandparents. On May 5, 2005, Mother filed preliminary objections to Grandparents’ custody action. On May 11, 2005, paternal Grandparents filed an amended custody action naming Father as a defendant and the parties agreed he was a necessary party to the suit.

On May 25, 2005, Mother filed a praecipe for argument court, alleging that 23 Pa.C.S. §5312 is unconstitutional, and on the same date filed the required notice to the Attorney General per Pa.R.C.P. 235. On June 27, 2005, the plaintiffs filed their answer and brief in response to Mother’s action alleging unconstitutionality of 23 Pa.C.S. §5312. This court set a hearing date for July 11, 2005, on the constitutional challenge, as well as the date for the defendant’s petition for special relief, which was unrelated to the constitutional challenge.

After argument heard, and upon review of both plaintiffs’ and defendant’s briefs, this court entered an order on July 14, 2005, finding that 23 Pa.C.S. §5312 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and dismissed the plaintiffs’ complaint for custody.

CONSTITUTIONALITY OF 23 Pa.C.S. §5312

This court finds that 23 Pa.C.S. §5312 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Fourteenth Amendment to the United States Constitution guarantees that “no state shall make or enforce any law which shall deny to any person within its jurisdiction the equal protection of the laws.” However, the Pennsylvania Supreme Court has stated “[t]he prohibition against treating people differently under the law does not preclude the Commonwealth from resorting to legislative classifications, . . . provided that those classifications are reasonable rather than arbitrary and bear a reasonable relationship to the object of the legislation.” Curtis v. Kline, 542 Pa. 249, 255, 666 A.2d 265, 267-68 (1995). (citations omitted) When that classification burdens a fundamental right, the strict scrutiny test must be applied: the classification must be necessaiy to a compelling governmental interest.

The statute at issue, deemed the Grandparents Visitation Act, provides three provisions for grandparents’ custody and visitation rights:

(a) 23 Pa.C.S. §5311: when a parent is deceased;

(b) 23 Pa.C.S. §5312: when parents’ marriage is dissolved or parents are separated; and

(c) 23 Pa.C.S. §5313: when grandparents may petition.

The section of the Act specifically at issue in this case is section 5312, which provides:

“In the proceedings for dissolution, subsequent to the commencement of the proceedings and continuing thereafter or when parents have been separated for six months or more, the court may, upon application of the parent or grandparent of a party, grant reasonable partial custody or visitation rights, or both, to the unmarried child if it finds that visitation rights or partial custody, or both, would be in the best interest of the child and would not interfere with the parent-child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the party and the child prior to the application.”

It is clear that section 5312 of the Grandparents Visitation Act has created a classification: namely a parent who is married and resides with her spouse or is unmarried and lives with their child’s parent has unfettered discretion in choosing with whom their children are permitted to associate; however, parents that are separated and/or divorced, do not have this unfettered right and the court system may intervene.

It is also clear that the right to be protected in this case is a fundamental right: “The United States Supreme Court has stated that the right of parents to make decisions about the upbringing of their children is a fundamental right.” Fausey v. Hiller, 851 A.2d 193, 195 (Pa. Super. 2004). “[I]t cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Id., citing Troxel v. Granville, 530 U.S. 57, 67, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). In relation to the Grandparents Visitation Statute at issue, the Superior Court discussed this fundamental right and has found that, when parents are married or are not married, but are living together, grandparents do not have standing to file for partial custody or visitation rights. See Herron v. Seizak, 321 Pa. Super. 466, 468 A.2d 803 (1983), and Welsh v. Welsh, 21 D.&C.4th 246 (1993).

From the foregoing, then, it becomes clear that the Grandparents Visitation Act creates a classification, and interferes with a parent’s fundamental right to determine with whom their children associate. The pertinent question then becomes, is there a compelling governmental interest that justifies this intervention and classification. This court finds that there is not.

The Superior Court has not yet determined whether 23 Pa.C.S. §5312 is constitutional under the Equal Protection Clause of the Fourteenth Amendment; however, the Pennsylvania Supreme Court and Superior Court have discussed Equal Protection issues of relative importance to the issue at hand.

The Pennsylvania Supreme Court has discussed an Equal Protection issue in terms of whether the legislature had a legitimate interest in treating the children of separated, divorced or unmarried parents differently than children of married parents for purposes of funding their children’s college education. See Curtis v. Kline, supra. In that case, the statute was struck down as the legislature did not have a legitimate interest in classifying the children as it did.

Unlike our case, where the right to be protected is a fundamental right, the right protected in the Curtis case, the right to a college education, is not a fundamental right. In the Curtis case, the statute would be upheld “if there is any rational basis for the classification” and in the present matter the statute can be upheld if the “statute is strictly construed in light of a compelling governmental purpose.” This is significant in that, although the subject matter is different, the classification in the two cases is similar: intact families are treated differently than separated or divorced parents. The statute creating a classification by permitting the court to order separated or divorced parents to provide equitably for educational costs, where parents of intact families did not have to provide for secondary education, did not withstand a rational basis test, therefore, the similar statute classification here, permitting the court to order a divorced or separated parent to permit their children) to visit with their grandparents, while intact families can make the decision without court interference, certainly cannot be said to withstand the strict scrutiny test.

The Superior Court has reviewed an Equal Protection issue under the Grandparents Visitation Statute in terms of 23 Pa.C.S. §5311. The Superior Court addressed whether 23 Pa.C.S. §5311 violated the Equal Protection Clause of the Fourteenth Amendment in Fausey v. Hiller, supra. In that case, the Superior Court found that section 5311 did not violate the Due Process or the Equal Protection Clause of the Fourteenth Amendment. In Fausey, the Superior Court determined that, to the extent section 5311 treats children differently who have lost a parent to death than those children who have not, it is for the “justified and reasonable purpose of protecting a child’s emotional well-being and accounting for the potentially different needs of a child whose parent has died.” Fausey, supra at 198. “The compelling purpose behind section [5311]... is to foster the emotional welfare of children. ... The statute treats children from intact families differently from children who have experienced the death of a parent. That classification makes perfect sense because it is precisely in those cases where the danger of alienation from a grandparent is greatest.” Fausey, supra at 198, citing trial court opinion at 17.

Our case is significantly different from the case in which a parent dies. This court agrees that, in that situation, there is a compelling governmental interest for the child to continue a relationship with both sets of grandparents, because, as stated above, without the deceased parent able to provide a connection for their child with their parent, the surviving parent could easily keep the child away from the deceased partner’s parent(s). A child in that situation needs as much emotional support as possible from their remaining parent, but also from their grandparents. In our case, both parents are living, and therefore they have the fundamental right to make the determination of whom their children will associate with. This court does not see that a compelling government interest exists to treat separated parents, who are still both alive and still fit to make decisions regarding their children, any differently than two parents that are still together. Although the parents are not together, it does not logically follow that they no longer have the right to make the decisions regarding their children and that state intervention is necessary. Both parents remain and, during periods of their visitation with the children, either parent can provide access to their parents. There is no compelling reason that this court can see for the state to require that Mother give up more of her time with the children so that Father’s parents can have their own periods of visitation separate from visitations while Father has custody.

As a result of the foregoing, this court finds that 23 Pa.C.S. §5312 violates the Equal Protection Clause of the Fourteenth Amendment. It has not been established that there is a compelling governmental interest for classifying married parents or parents residing together differently than separated or divorced parents, when the government is clearly interfering with the parents’ fundamental right to care, custody and control of their children.


author: WAITE, J.,

text:
    Smith v. McCollum

      Nancy Larkin-Taylor, for appellant.

      Andrew W. Young, for appellee.
    December 6, 2005
   WAITE, J.,

This is an appeal from our order entered on October 28, 2005, denying appellant Craig B. McCollum Jr.’s petition for primary custody of the parties’ 3-year-old daughter (Child). Appellant cites 18 separate reasons in support of his appeal in his statement of matters complained of on appeal. The eighteenth reason lists 25 sub-parts. Essentially, at issue is whether we should have awarded custody to appellant because appellee Valerie Smith’s living conditions were not as comfortable as appellant’s. Appellant seems to suggest that because he has the greater financial wherewithal and the more stable family background, the best interests of the Child would be served by being in his primary custody.

The parlies appeared before Judge Susan Devlin Scott of this court on December 13,2004, at which time a temporary order was entered granting appellant partial custody of the Child three out of four weekends for 10 months of the year, and during the other two months in the summer, the parties are to alternate weeks. The parents were directed to attend at least six sessions of co-parenting counseling. The parties complied with that order.

The parties agreed to attend the Court Conciliation and Evaluation Service (CCES). Under the temporary custody order, the parties were to share legal custody of the Child. Prior to the entry of the temporary order, the parties completed the CCES process and on August 10, 2004, a CCES Evaluation Report was submitted to and reviewed by the court, and is a part of the record. The evaluator observed that the Child was comfortable with both parents, yet had a closer bond with appellee, something to be expected because of the greater time spent together. The report recommended that the Child remain in the primary physical custody of appellee. The evaluator noted the difficult circumstances under which appellee operated and those circumstances will be discussed below; however, he concluded that appellee was a competent parent who was doing a good job raising the Child.

Appellant filed his petition to modify the custody arrangement so that he would be awarded primary physical custody of the Child. Two hearings were held on appellant’s petition. Both parties testified as to the history of their interaction, primarily focusing on the purported shortcomings of appellee’s living arrangements. Appellant’s demeanor when speaking about appellee was condescending, angry and dismissive of her.

Appellee’s testimony contrasted with appellant’s in terms of demeanor and content. She was much calmer and in general more insightful as to her behavior and appellant’s behavior. She testified as to her relationship with her mother, other persons in her life and, of course, the Child. She demonstrated her ability to maintain a degree of communication with appellant despite appellant’s alienation. We found appellee’s testimony credible. We found appellant’s testimony to be deliberately deceptive.

The background facts are that the appellant has been employed for five years as a lineman for the telephone company. He is the son of a loving two-parent family. His family is very supportive of him and his relationship with the Child. On the other hand, appellee comes from what can be described as a fundamentally flawed and dysfunctional family. Appellee’s mother has done little to support appellee. In fact, appellee did more to raise her own mother than the other way around. Appellee had the burden of providing both financial and emotional support for her mother. In addition, appellee was burdened with providing financial and emotional support for a physically and intellectually challenged foster sister. She became involved with a paramour who turned out to be a drug dealer. While all about appellee seemed to be both dysfunctional and socially disabled in one sense or another, there was no evidence that appellee suffered any of those maladies.

Appellee’s familial background and her choice of romantic partners are only of interest to the extent that they impact her present circumstances and her ability to provide a stable, safe, secure and nurturing environment for the rearing of a young child. The sole issue to be decided in a custody proceeding between contending parents is the best interest of the child. In order to insure such a focus, our law has long recognized that the scope of inquiry should be directed to the effect that the totality of the parent’s total environment has on the child. Lombardo v. Lombardo, 515 Pa. 139, 147, 527 A.2d 525, 529 (1987).

DISCUSSION

In a child custody determination, the paramount concern must be the best interest of the child. In reviewing a custody order, the appellate court is not bound by findings of fact which are unsupported in the record, nor is the appellate court bound by the trial court’s inferences drawn from the facts of record. However, on issues of credibility and weight of the evidence, traditionally the higher court will defer to the findings of the trial judge, who has had the opportunity to observe the proceedings and the demeanor of the witnesses. The trial judge is in a position to evaluate the attitudes, sincerity, credibility, and demeanor of the witness. Attitude is of particular importance in custody matters in that the court should consider, among other factors, which parent is more likely to encourage and permit frequent and continuing contact between the child and the other parent. Where, as here, there is a high level of conflict between the parents, the willingness and ability of the primary custodial parent to cooperate with the other is critical to the dynamic of the parent/child relationship.

In rendering the disposition best suited to the protection of the child, the court must necessarily make certain, value judgments driven by the peculiar personalities of the parties. In evaluating the factors impacting the physical, mental, and moral welfare of the child, the hearing court must take into account all interrelated issues that bear upon the child’s welfare. After all is considered, the court must necessarily employ what is inherently an imprecise prediction about that child’s future well-being. The considerations in straight custody proceedings, as well as in custody proceedings in connection with dependency proceedings, may include oral and written reports of psychologists, to the extent of its probative value. In re Davis, 502 Pa. 110, 465 A.2d 614 (1983). The reports prepared by CCES in this case were particularly helpful and were entirely consistent with our evaluation of the underlying facts.

An early conflict between the parents was that of the proper day care facility to be selected for the Child. Appellant demonstrated inflexibility and intransigence such as was illustrated by his unwillingness to be accommodative of appellee’s continuing relationship with the Child. Appellant recognized the limited resources of appellee and was well aware that appellee would have difficulty in picking up and dropping off the Child if a day care facility was selected at a location that was out of the course of appellee’s route of travel to and from her place of employment. See N.T. at 37, 99-101. Despite that, appellant was not willing to agree to reasonable requests of appellee. On the other hand, appellee accommodated virtually every request of appellant as to day care and all other matters related to the Child. In the judgment of this court, appellee has been accommodative to an extreme extent to the wishes, whims and demands of appellant. While this is only one aspect of the issues which the court must consider in making custody determinations, we consider it to be a critical factor in this particular case.

Both parents currently are vitally concerned about the best interest of the Child and are firmly committed to carry out their roles as parents. Unfortunately, that was not always the case in respect to appellant. At the time of the Child’s birth, appellant, who was not and never has been married to appellee, denied paternity, and had his attorney send appellee a letter demanding that she stop “harassing” him. N.T. at 22. He further insisted that pregnant appellee contact him only through his attorney. Id. He refused to see the Child except for three occasions during the Child’s first nine months of life. On those occasions, he only saw the Child at the insistence of appellee. It was only after paternity tests confirmed that he was the father did he take any steps to interact with the Child on any level.

For the first two years of the Child’s life, appellee had to live for short periods of time in a series of locations, not all of which were ideal for raising a young child. Appellee was doing the best she could with what she had available to her; and at all times, she demonstrated extraordinary commitment to the Child in the face of daunting odds. She was forced to quit high school to take care of her mother who was suffering from emphysema, hepatitis, cirrhosis of the liver, cancer and alcoholism — all at the age of 47. She held down a series of menial jobs to provide for her mother. Due to her mother’s mental instability, alcoholism and her medical infirmities, the mother was extremely critical and condemning of appellee. Appellee was able to look past the treatment she received from her mother to continue to take care of her.

Throughout all of that, in the last two and a half years appellee has had to battle through her mother’s problems; her own struggles to make a living; and finally to struggle through this custody battle. Appellant did nothing to accommodate appellee when needed. In fact, in the midst of these custody hearings, appellant strongly criticized appellee for allowing a non-certified day care provider to baby-sit the Child during the day that she was in court answering to appellant’s petition to obtain primary custody. Due to the extensive evidentiary presentations by appellant, the hearing did not conclude but continued to a subsequent hearing six weeks later. During that time, appellant refused to compromise with appellee to have the Child cared for at a day care center that was located between appellee’s home and her job site. On top of that, when the hearing was re-commenced, appellant again attacked appellee for her allowing a family member to look after the Child while appellee attended to her mother who was then in a hospice facility and who appellant knew, in fact, died during that interim period between the hearings.

Appellee maintained a stable, safe and nurturing home living environment for the Child despite all of the adversities thrown into her path. Remarkably, she provided adequate physical, emotional and developmental support for the Child. Appellant repeatedly asserted, without good cause, that appellee was not providing a safe environment for the Child, going so far as to lodge unfounded complaints with the children and youth agency. Appellee was thus compelled to frequently take the Child to medical service providers at the slightest suggestion of a cough, cold and any such minor medical situation. Appellee stated that she took the Child to the doctor 12-13 times from January to September alone. She explained the frequent visits thusly:

“I had Children and Youth call on me many times. I just want to cover myself. I take her to the doctor probably too much but I like to have everything noted.” N.T. at 103.

Appellant then responded with the claim that appellee was taking the Child to doctors too frequently and unnecessarily. In effect, appellee is obliged to practice the equivalent of defensive medicine to avoid appellant’s accusations.

Appellee’s life situation is considerably better presently. She resides in a single-family home where each has their own bedroom, including a separate bedroom for the Child. The home is located on a large lot with ample play areas for the Child. Appellee shares that home with a young married couple who have been friends of appellee’s for a long period of time, and with whom appellee had previously resided in an apartment. The home is spacious, clean and with more than adequate privacy to accommodate the needs of all without any inconvenience.

Much of appellant’s cross-examination of appellee focused on the various living arrangements appellee had over the years. While a transient lifestyle is not ideal to a child, appellee strived the entire time to maintain a suitable life for her child, and we see no reason to strip primary custody from her because of these struggles. Those were episodic hardships, and we do not attribute them to any flaw in appellee’s parenting skills. Furthermore, appellee’s current housing satisfies this court; living with known friends, with an agreement to stay as long as she desires. N.T. at 33 and 91.

In this home, the Child has access to two additional persons for adult supervision. See N.T. at 112. The Child is appropriately cared for and is happy, healthy, and on track developmentally. N.T. at 112-14. She has her own room, her own bed and, most importantly, familial support in both homes. N.T. at 89-90.

Appellant himself has set up a home with a nuclear family to welcome the Child. Here she will be exposed to a step-sister and a half-sibling. Yet testimony has not shown or indicated that one home is either more or less loving than the other. While appellant has certainly created a lovely home, this court remains unswayed by appellant’s attempts to paint the living conditions in appellee’s home as substandard or unsuitable for the Child.

Perhaps the dissension between the parties can be attributed to misunderstanding fueled ultimately by love for the Child. For example, appellant was upset about occasional diaper rash on the Child. While this may be an appropriate response for one concerned for the health of their child, it is not appropriate for appellant’s concern for the Child to mutate into wrath toward the appellee. The diaper rash, in reality, came from a food allergy of the child. N.T. at 55. The Child’s diet was adjusted in response. N.T. at 111. In this court’s eyes, the diaper rash does not reflect poorly on either parent’s parenting skills, but rather appellee’s testimony on the precautions she takes helps illustrate her fitness as a parent.

Furthermore, appellant seems unable to respect appellee’s role as mother by keeping her informed of significant developments. During one visit with appellant, the Child fell from a trampoline and broke her leg. Appellant, obviously concerned for the Child, brought her to the hospital. Appellant did not notify appellee of this serious injury to her child until a message was left on her answering machine at 1:30 in the morning, after they left the hospital. N.T. at 105. In contrast, the Child had the misfortune of breaking her leg earlier while at a day care facility which the appellant had selected for the Child. When appellee arrived at the day care center to retrieve the child, who appeared to be distressed, she immediately took the child to the hospital and immediately called appellant. He failed to come to the hospital in response to the call. N.T. at 95.

Determinations of custody at the trial court level require substantial on-site, hands-on parsing of credibility; sensing demeanor and sincerity as part of a trial judge’s determination. Considerable weight should be accorded those determinations. Generally, only where a gross abuse of discretion is discerned should an appellate court interfere with the decisions of the hearing judge. Commonwealth ex rel. Rainford v. Cirillo, 222 Pa. Super. 591, 597-98, 296 A.2d 838, 841 (1972).

“In these situations, the courts may be an imprecise and frequently unwieldy tool in the ‘selection and manipulation of a child’s external environment as a means of improving and nourishing [the child’s] internal development.’ Goldstein, J., Freud, A. and Solnit, A., Beyond the Best Interests of the Child, at 7 (Freedom Press 1973) (hereinafter referred to as Beyond Best Interests). When a child’s placement is disputed and subject to conflicting adult interests, the legal structure is ‘confronted with a highly complex decision which involves, implicitly if not explicitly, a prediction about who, among available alternatives, holds most promise for meeting the child’s psychological needs.’ Id. at 6. While courts are not ideally suited to the task, they are, with the help of social agencies and input adduced from the parties at evidentiary hearings, the best qualified institution at this time to render the decision.” In re Davis, 502 Pa. 110, 116 n.1, 465 A.2d 614, 616 n.1 (1983).

Of course, our findings should not be affirmed if our findings are “manifestly unreasonable as shown by the evidence of record ...However, unless our determination represents a gross abuse of discretion, the higher court generally will not interfere with our order awarding custody. Mumma v. Mumma, 380 Pa. Super. 18, 21, 550 A.2d 1341, 1343 (1988); see also, Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984).

At the conclusion of the custody hearings, we denied appellant’s petition for primary physical custody. We determined that it was in the Child’s best interest to remain in the primary custody of appellee, with partial custody to appellant on the schedule specified in detail in the final order. There is no denying that the appellant remains committed to the Child, yet his obstinate nature and negative treatment of appellee remains an impediment to involving both parents in the Child’s life. While appellant has certainly created a happy and healthy home in which Child would be welcomed, his relationship with appellee is so soured that we feel appellant’s primary custody would significantly damage Child’s relationship with Mother. In assigning primary custody to appellee, we have acted to keep both parents as an active part of the Child’s life, something we feel is manifestly in the Child’s best interest. We fear that if appellant is allowed to usurp primary custody, that he will continue his prior interference with appellee, to the detriment of the mother-daughter relationship. In a choice between two fit parents, we select the parent mostly likely to ensure those two parents remain in the Child’s life.

We in no way deem appellant to be an unfit parent. We view appellant to be a competent parent whose continued exposure to the Child can only benefit her, and the custody order reflects our desire to maintain the father-daughter relationship. We strive to create a situation where both parents are factors in the Child’s life.

For all of the above reasons, we entered our October 28,2005 custody order denying appellant’s petition seeking primary physical custody. We also deny the appellant’s petition for contempt.

      . Under CCES, the parties agree to be evaluated by a Ph.D. level psychologist for the purpose of generating recommendations as to a custody arrangement that is in the best interests of the children. The CCES process often results in custody agreements. If no agreement is reached, the CCES evaluator prepares a report that is submitted to the court and counsel. As part of the agreement to go to CCES, the parties agree that the court may consider the report prepared by the psychologist without requiring the testimony of the psychologist.

      . In crafting this opinion, we only work from the notes of testimony from the September 8, 2005 hearing, along with our personal notes of the entirety of the proceeding. Appellant failed to order the transcript of the October 24, 2005 hearing in which he and others testified. Therefore our references to the transcript is limited to the first hearing.

      . We fear this pattern will only continue. Appellant’s vigorous pursuit of primary custody shows no sign of abating. Appellee is left in a position where all her parental decisions are not only open to second-guessing, but are also litigated in court.

      . It should be noted that this leg was broken at the day care under mysterious circumstances. The day care provider was investigated, but no action was taken. Neither parent is accused of, or suspected of, any child abuse.


author: HOOVER, J,

text:
    Thompson v. Hoover

      Sandra Edwards Gray, for plaintiff.

      N. Christopher Menges, for defendant.
    December 22, 2005
   HOOVER, J,

The custody complaint in the above-captioned matter was filed by the plaintiff, Tony R Thompson, on October 20, 2004. The defendant, Erin Hoover, filed preliminary objections to the complaint challenging the plaintiff’s standing to pursue a custody action. The matter was scheduled for a hearing on July 8,2005. The issue before the court at the hearing was whether the presumption of paternity applied, such that plaintiff lacked standing to pursue custody. We entered an order on September 7, 2005, granting defendant’s preliminary objections. Based upon the facts presented at the hearing, we found that the presumption applied and ruled that plaintiff was estopped from making a custody claim. Plaintiff appeals that decision.

FACT AND BACKGROUND

The defendant in the case, Erin Floover, age 32, was married to Ryan Floover, age 32, on June 6, 1999. During the period of time at issue, Ms. Floover was employed at Franklin and Marshall College in Lancaster. Her husband Ryan Hoover is employed as a civil engineer.

The plaintiff, Mr. Thompson, is a single man and is employed at Franklin and Marshall as an assistant football coach. Mr. Thompson and the defendant met in February of2003 while Erin Hoover was working at Franklin and Marshall. Erin Hoover and Mr. Thompson had a relationship between August 24,2003 and February 2004. (Notes of Testimony, July 8,2005, pp. 8,12.) In October 2003, Erin Hoover left the marital residence and leased an apartment in Lancaster. (N.T. pp. 7-8.) Mr. Thompson also lived in the Lancaster area. During this period of time, Ms. Hoover had an intimate relationship with Mr. Thompson and spent time at his apartment in Lancaster. (N.T. p. 25.) She met Mr. Thompson’s family.

The record reflects that except during the time period of October 2003 through January of 2004, Ms. Hoover and her husband have resided at their current address in Harrisburg. (N.T. p. 7.) When Ms. Hoover leased the apartment in Lancaster, she did so with her husband’s approval. (N.T. p. 48.) The record reflects that although Ms. Hoover leased the apartment, the marital home largely remained intact. All of Ms. Hoover’s mail, life insurance and financial information remained in joint names with her husband Ryan. They both continued to contribute to marital expenses. (N.T. pp. 17-22, 54.) Most significantly, the wife and husband continued to see each during this period of time and were involved with counseling individually and jointly to keep their marriage intact. (N.T. p. 16.) Ms. Hoover testified that at no point did she consider her marriage over. (N.T. p. 25.) Ms. Hoover testified that during the period of the fall of2003 through January of2004, she and her husband maintained communication with each other, spent Christmas together with her family, and attended counseling sessions. (N.T. pp. 11-12.) Ms. Hoover testified that the purpose oftheir maintaining contact was to see if the two could work on their marriage and keep it together. (N.T. pp. 12, 16.)

Ms. Hoover testified that at no time did she consider herself legally separated from her husband, nor did she seriously consider or file for divorce, seek legal representation or request support. (N.T. pp. 17, 23.) Ms. Hoover and her husband began looking for a new home together in January 2004. (N.T. p. 20.) Mr. and Mrs. Hoover continued attending counseling sessions throughout the pregnancy of Ms. Hoover. Mr. and Mrs. Hoover paid Ms. Hoover’s pre-natal care expenses. The husband’s name is on the child’s birth certificate. (N.T. p. 22.) The record reflects that Mr. Hoover considers the child as his own, and is committed to raising her as his own. (N.T. p. 15.) The record reflects that the husband and wife have lived as an intact marital family since February 2004. (N.T. p. 12.)

The wife’s romantic relationship ended with Mr. Thompson in January 2004. Mr. and Mrs. Hoover did experience another marital disagreement in the month of February, and Ms. Hoover engaged in a sexual relationship with the plaintiff. Nevertheless, since the wife’s return to the marital residence in January 2004, husband and wife have continued to live together as an intact family-

LEGAL DISCUSSION

A. An Irrebuttable Presumption of Paternity Applies in the Instant Matter

Both counsel have properly directed the court to Brinkley v. King, 549 Pa. 241, 701 A.2d 176 (1997). Pursuant to Brinkley, the premise that the strong presumption that a child conceived or bom during marriage is a child of that marriage serves the public policy of promotion of marriage and an intact family. The presumption supports the policy that a marriage which functions as a family unit should not be destroyed by disputes over the parentage of a child conceived or bom during the marriage. Specifically, third parties should not be allowed to attack the integrity of a functioning marital unit. Brinkley, 549 Pa. at 250, 701 A.2d at 181.

Further, we are guided by Strauser v. Stahr, 556 Pa. 83, 726 A.2d 1052 (1999). In Strauser, the Supreme Court of Pennsylvania identified the presumption that a child bom to a married woman is the child of the woman’s husband as one of the strongest presumptions known in law. Id. at 87-88, 726 A.2d at 1053-54. The court in Strauser stated:

“Traditionally, the presumption can be rebutted only by proof either that the husband was physically incapable of fathering a child or that he did not have access to his wife during the period of conception, (citations omitted) Thus, it has been held that, where the presumption applies, blood test results (existing or potential) are irrelevant unless and until the presumption has been overcome. Jones v. Trojak, 535 Pa. 95, 105, 634 A.2d 201, 206 (1993). It has also been held that, in one particular situation, no amount of evidence can overcome the presumption: where the family (mother, child and husband/ presumptive father) remains intact at the time that the husband’s paternity is challenged, the presumption is irrebuttable. Freedman v. McCandless, 539 Pa. 584, 592, 654 A.2d 529, 533 (1995). Coco v. Vandergrift, 416 Pa. Super. 444, 448, 611 A.2d 299, 301 (1992).” Strauser v. Stahr, 556 Pa. 83, 84, 726 A.2d 1052, 1054.

We find that the case before us falls within the parameters of Brinkley and Strauser. The marriage into which this child was born existed for four years prior to the temporary separation and continues. During the period of temporary separation only the physical location of the husband and wife changed, while even then Ms. Hoover and her husband continued to work on their marital relationship. The mother and husband in this case, while temporarily separated, remained in a marriage which was intact. They continued to see each other, attended counseling, jointly met their financial obligations, and made important family decisions together. Moreover, this child was born in October 2004, and the husband and wife were together undisputedly from February 2004 until October 8,2004. The parties have remained together and have chosen to preserve their marriage and raise their family.

We are guided by the language of the court in John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990): “[tjhere is, in short, a family involved here. A woman and a man who have married and lived together as husband and wife, giving birth to and raising [several] children, have obvious interests in protecting their family from the unwanted intrusions of outsiders (even ones who have had serious relationships with the mother, father or children). The Commonwealth recognizes and seeks to protect this basic and foundational unit of society, the family, by the presumption that a child born to a woman while she is married is a child of the marriage.” John M. at 317-18, 571 A.2d at 1386.

We find that the present case comes within those circumstances in which the presumption of paternity continues to apply. We find that the presumption is not rebuttable.

B. The Court’s Order of September 7, 2005 Did Not Constitute an Improper Termination of Parental Rights Without a Hearing

Plaintiff’s pleadings filed prior to the instant appeal raise no issue as to an alleged improper termination of parental rights, and therefore any such argument is waived.

Even were it deemed not waived, clearly, the proceeding before this court is not tantamount to an involuntary termination of parental rights because parental rights have not been established. For the reasons we have set forth above, the presumption of paternity within the marriage is irrebuttable. There are no parental rights to terminate because they have not been established.

C. The Court Properly Determined That the Presumption of Paternity Would Serve an Intact Family

As the Pennsylvania Supreme Court in Strauser v. Stahr, supra, has stated: No amount of evidence can overcome the presumption: where the family (mother, child, and husband/presumptive father) remains intact at the time that the husband’s paternity is challenged; the presumption is irrebuttable. Freedman v. McCandless, 539 Pa. at 592, 654 A.2d at 533; Coco v. Vandergrift, 416 Pa. Super. 444, 448, 611 A.2d 299, 301 (1992). In the present case, the plaintiff, a third party, challenged the husband’s paternity at a time during which this family was intact. There is no question that the mother and husband separated from September 2003 until the middle of February 2004. As we have set forth at length, even during that time, the mother and husband continued to work on their marital relationship, continued to be together, spend holidays together, birthdays together, maintain common health insurance. Neither mother nor husband ever filed for divorce or sought a formal separation agreement. Likewise, it is not disputed that the mother in this case had an intimate relationship with the plaintiff, Tony Thompson, during that period of time, but from February 2004 until October 2004 through the time of the hearing on July 8, 2005, the mother, father and child indisputably lived together as an intact family. The mere fact that the mother and father separated physically for a period of six months in order to work on their marriage and during that separation Ms. Hoover had sexual relations with Mr. Thompson does not overcome the presumption of the husband’s paternity in this case.

In reaching this conclusion, we have looked at the totality of the evidence before us. We applied the presumption of paternity after having found that during the physical separation, Mr. and Mrs. Hoover remained committed to their marriage and both put forth an effort to preserve their marital relationship, despite the mother’s intimacy with the plaintiff.

As a matter of law, this court finds that the presumption of paternity is appropriately applied to this marriage and this family.

      . We are not unmindful of the views of others regarding the right to compel blood testing. We believe that the plurality of the Supreme Court has decided that a third party that stands outside of an intact marital relationship should not be allowed for any purpose to challenge the husband’s claim of parentage. John M. at 323, 571 A.2d at 1389.