text:
    Clever v. Erie Insurance Co.

      Frank R. Fleming, III, for plaintiff.

      Mark Martini and Arthur J. Leonard, for defendant.
    October 6, 2009
   PANCHIK, J,

Before the court for disposition is defendant, Erie Insurance Company’s motion to compel discovery.

BACKGROUND

Plaintiff, Luann Clever, was involved in an automobile accident on August 23, 2003 which resulted in serious injuries, including a fracture of her right foot and ankle. Defendant was plaintiff’s automobile insurance carrier at the time of the accident and plaintiff made a claim under her first-party coverage.

According to plaintiff’s complaint, she has not fully recovered from the injuries she suffered in 2003, and has continued to seek treatment. In July 2008, plaintiff was given a prescription for physical therapy for her right foot and ankle. She received treatment at Keystone Physical Therapy. Defendant submitted the prescription, and the physical therapy received, to a PRO review. As a result of the PRO, defendant determined that plaintiff’s ongoing treatment and physical therapy with Keystone was neither reasonable nor necessary to address her needs.

Plaintiff filed the instant lawsuit in November 2008, pleading a breach of contract claim against defendant. Defendant filed its motion to compel discovery on June 17, 2009, averring that plaintiff’s responses to its interrogatories and request for production of documents were “unresponsive and improper.”

Argument on defendant’s motion was heard by the court on July 31, 2009.

DISCUSSION

At argument, defendant presented the numbers of the interrogatories and requests for production that defendant contends deserve more complete responses. Plaintiff responded to each of these points, and issues with respect to some of the interrogatories were resolved in the course of argument. Defendant withdrew its motion to compel as to interrogatories no. 13 and no. 14. Each remaining category of interrogatories will be addressed in turn.

Plaintiff’s Present Physical Condition (Interrogatory 4)

Interrogatory 4 asks, “[i]f you have not fully recovered from all of your injuries, state in what respect you are still affected by them and what improvements you have made.” Plaintiff argues that this inquiry is beyond the scope of the PRO review, because it asks plaintiff for statements regarding her physical condition, while only plaintiff’s medical records were considered during the PRO review. Plaintiff also avers that to provide this information to defendant would impose an undue burden upon plaintiff which constitutes harassment. Defendant contends that the information requested is relevant as plaintiff is claiming ongoing expenses.

The court finds that it would not be unduly burdensome for plaintiff to respond to this interrogatory. The question merely asks plaintiff what her present physical ailments are and how her condition has improved or deteriorated since the original accident. As the court reads it, the question does not require plaintiff to recount her entire treatment history from the accident to present day — it merely asks plaintiff to compare her present condition with the condition existing at the time of the accident.

While defendant may not have asked this question of plaintiff during the PRO review, the purpose of this litigation is to determine whether the conclusion reached by the PRO (that the treatments sought by plaintiff were unnecessary) was correct. Under the Pennsylvania Rule of Civil Procedure 4003.1, “a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” Pa.R.C.P. 4003.1(a). (emphasis added) It seems to the court that information regarding plaintiff’s current physical ailments and whether her symptoms have improved or become worse over time is relevant to that inquiry.

Continuing Treatment (Interrogatories 5, 6, 7 and 9)

Interrogatories 5, 6, 7 and 9 inquire as to treatment plaintiff has received since the accident occurred in 2003. Plaintiff objected on the basis that defendant should have most of that information, and that information relating to her treatment immediately following the accident is not relevant to whether the treatment she is currently seeking is reasonable and necessary. At argument, the parties agreed that plaintiff would provide the information requested in the interrogatories, but that the information would be limited in scope to treatments, providers, and billing from the time of the PRO review to present day.

Unpaid Medical Bills (Interrogatories 15 and 16)

Defendant seeks information regarding medical or prescription bills that were the result of the 2003 accident and that plaintiff alleges were not paid by defendant.

Additionally, defendant seeks information regarding who actually paid for the medical care and/or prescriptions if defendant did not. Plaintiff at argument agreed to provide copies of bills for services received/prescriptions filled from the date of the PRO to present.

Damages Claimed (Interrogatory 18)

Defendant seeks information regarding the amount of damages plaintiff is claiming and how these damages were calculated. At argument, plaintiff agreed to provide information regarding her damages from the point of the PRO review forward, with the option to amend if additional claims are denied as this litigation continues.

Underlying Tort Litigation (Interrogatories 34, 35, 36 and 40)

Defendant requested information regarding suit against the other individuals involved in plaintiff’s 2003 accident, including any depositions that were taken in conjunction with such a suit. Plaintiff’s response at argument was, essentially, that any information regarding a previous lawsuit is available in the office of the Armstrong County Prothonotary, and that the underlying tort suit is irrelevant to whether the treatment currently claimed is reasonable and necessary. Further, plaintiff argues that providing any information related to the underlying suit would be “doing defendant’s work for them.”

The court agrees that plaintiff is not required to produce information which is available to defendant in the public domain. Nor must plaintiff provide privileged information. Furthermore, the court agrees with plaintiff’s contention that the underlying tort suit is not relevant to the instant action. The medical cost claims at issue here are the first that defendant has denied. Therefore, as plaintiff points out, it appears that defendant concluded that all treatments received prior to the present denial were reasonable and necessary. As such, the court at this time fails to see how information regarding the litigation arising from the underlying accident is relevant to determining whether the current treatments are reasonable and necessary.

Request for Production ofDocuments

Defendant’s issues with respect to requests for production numbers 5, 6, 7, 8 and 12 are addressed through the agreement of the parties with respect to the interrogatories discussed above. Thus the only disputed request for production remaining is no. 15, which requests that plaintiff provide “[a]ny and all documents that you rely upon in support of your contention that the ‘PRO review is in error.’”

Plaintiff contends that she cannot provide this information, as she believes this to be a “stealth” request for an expert report. The court does not read this request so narrowly, particularly as defendant’s request no. 6 specifically asks for “[a] 11 reports of experts who have been consulted.” Defendant’s request appears merely to request documents, if any, that plaintiff used in coming to its conclusion that the PRO review was in error. The court does not envision this request to cover an expert report. The court finds this to be a reasonable request. If no such documents exist, certainly plaintiffs can respond to that effect.

An appropriate order will be entered.

ORDER

And now, October 6, 2009, defendant’s motion to compel discovery is hereby granted. Plaintiff is ordered to respond to the interrogatories as reflected in the foregoing memorandum.

      . Defendant stated that it wished to prevent double recovery for plaintiff — i.e., if another insurer has already paid a bill, defendant does not want to permit plaintiff to recover twice. Plaintiff responded that defendant has no obligation to prevent double recovery to plaintiff, and that plaintiff would be responsible for making sure this did not occur.

      . With this in mind, however, the court sees no reason that plaintiff cannot respond to questions regarding the docket number or court in which the suit was filed if such a question were asked.

      . These requests for production deal with items such as bills and information relating to prior litigation.


source: Caselaw Access Project

author: STINE, J.,

license: Public Domain

text:
    Eline v. Estate of Kurtz

      Paul Eline, pro se.
    Paul C. Troy, for defendants.
    October 29, 2009
   STINE, J.,

Before the court are the defendants’ preliminary objections in the nature of demurrer to the plaintiff’s complaint. The defendants also filed a “motion to strike the notice to plead by plaintiff in response to preliminary objections”, and a “motion to strike the certificate of merit of plaintiff attached to the complaint”, which we are considering in conjunction with the preliminary objections. The plaintiff has filed responses to the preliminary objections and the motions.

It is difficult for this court to determine exactly what causes of action the plaintiff is attempting to allege against the defendants. However, after reviewing the plaintiffs 23-page complaint, containing 66 paragraphs of rambling allegations and conclusions, we find that there are three main “theories” of liability alleged against the defendants. First, the plaintiff’s complaint attempts to set forth an action for legal malpractice professional liability against the estate of Robert A. Kurtz, Esquire, deceased, with regard to Attorney Kurtz’s legal representation of Mr. Eline in a criminal matter. The plaintiff alleges that the court appointed Attorney Kurtz to represent him on August 19,2005, in connection with the numerous charges of theft by deception and deceptive business practices filed against him. The plaintiff further alleges that he was found guilty of several counts of deceptive business practices because of Attorney Kurtz’s severe addiction to alcohol, which plaintiff alleges rendered Attorney Kurtz incompetent to represent him at trial. Specifically, the plaintiff alleges that Attorney Kurtz:

“Maliciously violated the rules of professional conduct 1.1, whereas said rule states that ‘a [sic] attorney shall provide competent representation to a client through the legal knowledge, skill, thoroughness and necessary preparation for a client’, inwhich [sic] due to Attorney Kurtz’s sever [sic] addiction to alcohol, which also cost him his life, completely and with specific intent, violated every constitutional right the plaintiff, Paul Eline is guaranteed under the constitution of the United States and Pennsylvania.” (Plaintiff’s complaint, ¶39.)

Plaintiff further alleges against Attorney Kurtz that:

“[tjhrough the dereliction of duty, sever [sic] alcohol addiction and complete disregard of the plaintiff’s constitutional rights, the facts state clearly and with particularity setting forth a cause of action for the intentional ineffectiveness, failure to protect the constitutional rights of the plaintiff and the finding of guilt of an innocent person, said dereliction of duty, complete ineffectiveness and violation of ethical practices, caused the plaintiff tremendous losses, impairment of reputation, standing in the community, personal humiliation, mental anguish, unjust incarceration and the plaintiff’s right to freedom.” (Plaintiff’s complaint, ¶48.)

Secondly, the plaintiff alleges that Regina Kurtz and Karen Krol, who are Attorney Kurtz’s mother and sister, knew about Attorney Kurtz’s severe alcohol abuse/addiction; that they had a “moral obligation” to inform the courts about his addiction; and that they “intentionally and maliciously” refused to do so. Specifically, the plaintiff alleges that Regina Kurtz and Karen Krol “maliciously and with specific intent, refused to inform the courts that Robert A. Kurtz, Esquire, was incapacitated and incapable to perform the mandatory duties of a lawyer by mental and physical incapacity, through the sever [sic] addiction of alcohol, that cost Robert A. Kurtz, Esquire his life.” (Plaintiff’s complaint, ¶33.)

Plaintiff also alleges that Regina Kurtz and Karen Krol:

“had the moral obligation to inform the courts and proper authorities of the personal condition, sever [sic] abuse of alcohol, mental disorder and the terminal condition of hepatic cirrhosis of Attorney Kurtz, there [sic] family member, knowing that his condition will completely destroy his clients [sic] ability to obtain the objectives in the case, inwhich [sic] there [sic] refusal to inform the courts and demand a hearing so as to instruct the courts of Attorney Kurtz’s abuse of alcohol and medical condition, in order to determine whether Attorney Kurtz was to be declared incompetent and incapacitated to perform the duties of an attorney, who has intentionally and maliciously committed dereliction of his duties to the courts and his clients.” (Plaintiff’s complaint, ¶60.)

Plaintiff further alleges that Regina Kurtz and Karen Krol:

“where [sic] well aware of the factors involving the responsibilities and duties of a professional person, with a degree in law, and that any addictions or excessive alcohol consumption would lead to an uncontrollable abuse and sever [sic] addiction which would totally incapacitate the person and deprive the clients of there [sic] constitutional right of the protection and representation of a responsible attorney. These intentional and malicious actions and inactions of defendant’s [sic], Regina J. Kurtz, Karen Krol and none [sic] defendant, Regina Huss, severally has damaged the plaintiff, Paul Eline, in which [sic] has caused excessive losses that could have been entirely avoided if the defendant’s [sic], Regina J. Kurtz, Karen Krol, including none [sic] defendant, Regina Huss, would have submitted the abuse of alcohol and sever [sic] addiction to the courts and the proper authorities, which in turn [sic] would have prevented the tremendous losses of the plaintiff, Paul Eline, by the courts [sic] intervention into the abuse of alcohol by the defendant, Robert A. Kurtz, Esquire. Said malicious acts are against all moral standards in life.” (Plaintiff’s complaint, ¶61.)

Lastly, the plaintiff alleges that the reason Regina Kurtz and Karen Krol refused to notify the courts about Attorney Kurtz’s alcohol addiction was because they wanted to gain financially by having Attorney Kurtz transfer legal title to his residential real estate to his parents, Regina and Adam Kurtz, while Attorney Kurtz continued to reside in the house until he died, and then make fraudulent statements on the inheritance tax return filed by the estate by failing to disclose that Attorney Kurtz had a life estate in the property. Specifically, the plaintiff alleges that Regina Kurtz and Karen Krol:

“withheld this critical information from the courts for there [sic] personal gain of the assets of Robert A. Kurtz, Esquire, knowing that Attorney Kurtz [sic] sever [sic] addiction to alcohol would cost him his life, maliciously and with specific intent, not only refused to submit the critical information to the courts concerning Attorney Kurtz’s abuse of alcohol, but also filed fraudulent statements in the inheritance tax return of resident decedent, Robert A. Kurtz, in file number 0310, filed with the Register of Wills of Columbia County, Pennsylvania, whereas under penalties of perjury, fraudulently and with specific intent withheld the real estate property that Robert A. Kurtz had transferred to Regina J. Kurtz and Adam Kurtz, mother and father, on August 5,2005 and retained the use of said property for personal residence. . . .” (Plaintiff’s complaint, ¶37.)

We will first discuss the defendants’ preliminary objections in the nature of demurrer to the plaintiff’s entire complaint. Pa.R.C.P. 1028 provides: “(a) preliminary objections may be filed by any party to any pleading and are limited to the following grounds:... (4) Legal insufficiency of a pleading (demurrer) — ” Pa.R.C.P. 1028(A)(4). A preliminary objection in the nature of a demurrer admits every well-pleaded fact in the complaint and all inferences reasonably deducible therefrom. Composition Roofers Local 30/30B v. Katz, 398 Pa. Super. 564, 581 A,2d 607 (1990). A preliminary objection in the nature of a demurrer tests the legal sufficiency of the complaint. Smith v, Wagner, 403 Pa. Super. 316, 588 A.2d 1308 (1991). When sustaining a preliminary objection that would result in the dismissal of an action, the objection should be sustained only in cases that are free from doubt. Engle v. Engle, 412 Pa. Super. 425, 603 A.2d 654 (1992). Where any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the demurrer. Jackson v. Garland, 424 Pa. Super. 378, 622 A.2d 969 (1993).

As to the alleged legal malpractice of Attorney Kurtz, we note that “[a]n action for legal malpractice may be brought in either contract or tort.” Wachovia Bank N.A. v. Ferretti, 935 A.2d 565, 570 (Pa. Super. 2007), quoting Garcia v. Community Legal Services Corp., 362 Pa. Super. 484, 489, 524 A.2d 980, 982 (1987). To establish a legal malpractice action sounding in negligence, a plaintiff must prove: (1) the employment of the attorney or another basis for a duty owed to the plaintiff; (2) the attorney failed to exercise ordinary skill and knowledge; and (3) that such failure was the proximate cause of the harm to the plaintiff. Wachovia, supra, 935 A.2d at 570-71, citing Bailey v. Tucker, 533 Pa. 237, 246, 621 A.2d 108, 112 (1993). With regard to a breach of contract claim, ‘an attorney who agrees for a fee to represent a client is by implication agreeing to provide that client with professional services consistent with those expected of the profession at large.’” Wachovia, 935 A.2d at 571, quoting Bailey, supra; see also, Gorski v. Smith, 812 A.2d 683, 694 (Pa. Super. 2002) (citing Bailey and noting that “when an attorney enters into a contract to provide legal services, there automatically arises a contractual duty on the part of the attorney to render those legal services in a manner that comports with the profession at large”). A two-year statute of limitations applies to a legal malpractice action sounding in tort, and a four-year limitations period applies to the breach of contract claim. Wachovia, 935 A.2d at 570-71, citing 42 Pa.C.S. §§5524(3), 5525. “Additionally,... to avoid waiver of either claim, [a plaintiff is required] to assert them together in one action, because the claims [arise] from the same ‘transaction or occurrence’ against the ‘same person.’” Wachovia, 935 A.2d at 570-71, citing Pa.R.C.P. 1020(d) and D’Allessandro v. Wassel, 526 Pa. 534, 537-38, 587 A.2d 724, 726 (1991) (indicating that actions in the nature of trespass or assumpsit arising from the same occurrence must be joined).

Because a legal malpractice action, whether based in tort or contract, requires the plaintiff to prove that the attorney failed to exercise the ordinary skill and knowledge of a member of the profession at large, the plaintiff must file a certificate of merit as required by Pa.R.C.P. 1042.3. Here, subsequent to their filing preliminary objections, the defendants filed a motion to strike the certificate of merit that the plaintiff attached to his complaint. Regarding an action for professional liability, the Pennsylvania Rules of Civil Procedure, Rule 1042.3, provides:

“(a) In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within 60 days after the filing of the complaint, a certificate of merit signed by the attorney or party that either
“(1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or
“(2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or
“(3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.” Pa.R.C.P. 1042.3(a). (emphasis added)

In their motion to strike the certificate of merit, the defendants argue that the plaintiff did not file a proper certificate of merit with the complaint, and that the plaintiff did not file a corrected certificate of merit within 60 days of filing the complaint. The plaintiff’s certificate of merit attached to his complaint states:

“This claim is based upon allegations that the defendant, Robert A. Kurtz, Esquire, deviated from an acceptable professional standard and that other licensed professional’s [sic] for whom this defendant, Robert A. Kurtz, Esquire is responsible, deviated from an acceptable professional standard, and there exists a reasonable probability that the sever [sic] addiction to alcohol that caused the defendant, Robert A. Kurtz, Esquire his life and the care, skill and knowledge exercised and exhibited by the defendant in the treatment, practice and work [that] is the subject of the complaint fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, loss of the constitutional rights guaranteed by the Constitution of the United States and the Commonwealth of Pennsylvania, inwhich [sic] the plaintiff, Paul Eline suffered tremendous losses.
“An appropriate licensed professional who is an expert in the field of law will testify at trial.”

The plaintiff’s certificate of merit is deficient for two reasons: first, it does not state that an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm. It is not sufficient for the plaintiff to state that “[a]n appropriate licensed professional who is an expert in the field of law will testify at trial.” Secondly, the plaintiff appears to be implying that Regina Kurtz and Karen Krol were “other licensed professionals for whom this defendant is responsible.” We fail to see how Attorney Kurtz’s mother and sister, acting in their individual capacities or as administrators of Attorney Kurtz’s estate, are considered “other licensed professionals.”

Since the plaintiff failed to correct the deficiencies of his original certificate of merit within 60 days of filing the complaint, we find that the plaintiff has failed to file a certificate of merit as required by Rule 1042.3(a). Therefore, the certificate of merit that plaintiff attached to his complaint must be stricken, and, because the plaintiff will not be able to show that Attorney Kurtz deviated from the required standard without an expert’s report and testimony, the legal malpractice claim against Attorney Kurtz must be dismissed. Since the plaintiff’s certificate of merit is stricken, we need not discuss further the defendants’ preliminary objection as to the legal malpractice claim.

With regard to the allegations against Regina Kurtz and Karen Krol, we know of no cause of action under which the plaintiff could recover for the defendants’ alleged failure to notify the court that Attorney Kurtz had an alcohol abuse problem. Furthermore, we doubt, if there were such an action, that the plaintiff could prove that he was harmed by their failure to notify the court since, as we noted in footnote 2 hereinabove, Mr. Eline unsuccessfully appealed his conviction and was denied relief in the two PCRA petitions he filed — apparently the Superior Court determined that Mr. Eline received a fair trial and was not wrongfully found guilty of the charges filed against him. Additionally, we know of no cause of action under which the plaintiff could recover for Attorney Kurtz’s having transferred title to his residential real estate to his parents, or for the administrators’ allegedly not reporting on the inheritance tax return that Attorney Kurtz had a life estate in the property he transferred to his parents. Therefore, we find that the plaintiff has failed to set forth any cause of action against defendants, Regina Kurtz and Karen Krol, under which the plaintiff could recover damages. Thus, the plaintiff’s complaint must be dismissed.

Additionally, the defendants filed a “motion to strike the notice to plead by plaintiff in response to preliminary objections of defendants”; however, since we have decided the preliminary objections in the defendants’ favor, this issue is moot.

Accordingly, we rule as follows:

ORDER

And now, October 29,2009, upon consideration of the defendants’ preliminary objections to the plaintiff’s complaint, the defendants’ “motion to strike the notice to plead by plaintiff in response to preliminary objections,” and the defendants’ “motion to strike the certificate of merit of plaintiff attached to the complaint,” it is hereby ordered that:

(1) the defendants’ preliminary objections in the nature of demurrer are sustained;

(2) The defendants’ “motion to strike the certificate of merit of plaintiff attached to the complaint” is granted;

(3) the defendants’ “motion to strike the notice to plead by plaintiff in response to preliminary objections” is dismissed as moot; and

(4) the plaintiff’s complaint is dismissed with prejudice.

      . Attorney Kurtz was the eighth attorney appointed by the court to represent Mr. Eline.

      . We note that Mr. Eline filed an appeal of the guilty verdict in the Superior Court, which affirmed the trial court, and, also, that two Post-Conviction Relief Act petitions were filed and were denied.


author: KISTLER, J,

text:
    Sarah E. Newman Revocable Trust v. B.E. Newman Inc.

      Timothy C. Leventry, for plaintiff.

      Jeffrey W. Stover, for defendant.
    December 11, 2009
   KISTLER, J,

Presently before this court is The Sarah E. Newman Revocable Trust’s motion for leave of court to file an amended complaint. A hearing on this motion occurred on November 12, 2009. At this hearing, Trust asked the court for leave to file an amended complaint which would add a cause of action based on a “confession of judgment clause” contained in paragraph 15.3 of the lease agreement. B.E. Newman Inc. has filed an answer to trust’s motion as well as a new matter. Both in the new matter and at the hearing on this motion, Newman Inc. argues that allowing Trust to amend its pleading will merely result in a petition to open judgment based on the meritorious defenses already raised, essentially bringing the action back to where it began prior to this motion. For the following reasons, Trust’s motion for leave of court to file an amended complaint is Granted.

DISCUSSION

Trust seeks to amend the pleadings to include a cause of action based on a “confession of judgment clause” contained in paragraph 15.3 of the lease agreement. This clause states the following:

“If rent and/or any charges hereby reserved as rent shall remain unpaid on any day when the same ought to be paid, lessee hereby empowers any prothonotary, clerk of court or attorney of any court of record to appear for lessee in any and all actions which may be brought for rent and/or the charges, payments, costs and expenses reserved as rent and/or the charges, payments, costs and expenses reserved as rent, or agreed to be paid by the lessee and/or to sign for lessee an agreement for entering in any competent court an amicable action or actions for the recovery of rent or other charges, payments, costs and expenses, and in said suits or in said amicable action or actions to confess judgment against lesseee for all or any part of the rent specified in this lease and then unpaid including, at lessor’s option, the rent for the entire unexpired balance of the term of this lease, and/or other charges, payments, costs and expenses reserved as rent or agreed to be paid by the lessee, and for interest and costs together with attorney’s commission of 10 percent. Such authority shalt not be exhausted by one exercise thereof, but judgment may be confessed as aforesaid from time to time as often as any of said rent and/or other charges, payments, costs and expenses, reserved as rent shall fall due or be in arrears, and such powers may be exercised as well after the expiration of the original term and/or during any extension or renewal of this lease.”

Rule 1033 of the Pennsylvania Rules of Civil Procedure permits a party to amend its complaint either by filed consent of the adverse party or by leave of court. The rule also provides that “[t]he amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense” and also allows amendment “to conform the pleading to the evidence offered or admitted.” Pa.R.C.P. 1033.

Leave to amend pleadings is to be liberally granted. Stalsitz v. Allentown Hospital, 814 A.2d 766, 776 (Pa. Super. 2002), appeal denied, 578 Pa. 717, 854 A.2d 968 (2004). “It is well-established in this jurisdiction that amendments to pleadings are a matter of judicial discretion and should be liberally allowed except where surprise or prejudice will result or where the amendment is against a positive rule of law.” Pastore v. Anjo Construction Co., 396 Pa. Super. 58, 68, 578 A.2d 21, 26 (1990). (citation omitted) A party is to be given leave to amend its pleadings when allowing the amendment will not unduly prejudice or surprise the adverse party. Somerset Community Hospistal v. Allan B. Mitchell & Associates Inc., 454 Pa. Super. 188, 199, 685 A.2d 141, 147(1996). Undue prejudice has been defined as something more than a detriment to the other party, as any amendment would likely have the effect of harming the adverse party’s interests. The policy underlying this rule of liberal leave to amend is to insure that parties get to have their cases decided on the substantive case presented, and not on legal formalities. Laursen v. General Hospital of Monroe County, 494 Pa. 238, 243, 431 A.2d 237, 240 (1981); Gallo v. Yamaha Motor Corporation, U.S.A., 335 Pa. Super. 311, 314, 484 A.2d 148, 150 (1984).

Newman Inc. argues in his new matter that the effect of granting Trust’s motion to amend will only work to needlessly increase and prolong the litigation in this matter as Newman Inc will be forced to file a petition to open judgment based on the meritorious defenses it has already raised. While this may be true, it does not change the fact that this court is bound to decide the instant motion based on the aforementioned “undue prejudice and surprise” test discussed in the case law above. Upon review of Newman Inc.’s answer and argument at the time of the hearing, this court determines that Newman Inc. has failed to allege any undue prejudice or surprise which would require this court to deny Trust’s motion. Therefore, this court is constrained to grant Trust’s motion for leave of court to file an amended complaint.

ORDER

And now, December 11, 2009, motion for leave of court to file an amended complaint is granted.


author: ASHWORTH, J,

text:
    John D. Hughes Construction Inc. v. Funk

      Bruce A. Roth, for plaintiff.

      Aaron K. Zeamer, for defendant.
    December 4, 2009
   ASHWORTH, J,

This matter is before the court on plaintiff’s motion to strike judgment/ petition to open judgment. For the reasons set forth below, this motion/petition must be denied.

I. BACKGROUND

John D. Hughes Construction Inc., filed an action against Tom Funk, before Magisterial District Judge Mary Mongiovi Sponaugle on January 30,2009. Ahearing was held before MDJ Sponaugle on March 12,2009, which resulted in a judgment being entered in defendant Funk’s favor on March 17, 2009. Neither party was represented by counsel at the MDJ hearing.

On April 16,2009, plaintiff Fiughes, through counsel, filed a timely notice of appeal with the Lancaster County Court of Common Pleas. Copies of the notice of appeal were served on MDJ Sponaugle and Funk by certified mail on April 23, 2009, as required by Pa.R-C.RM.DJ. 1005.

After filing the notice of appeal, plaintiff, however, failed to file a complaint within the 20 days required by Pa.R.C.P.M.D.J. 1004(A). Accordingly, on May 15, 2009, Funk filed a praecipe to strike the appeal pursuant to Pa.R.C.P.M.D. J. 1006 requesting that Hughes’ appeal be stricken for plaintiff’s failure to comply with Pa.RC.P.M.D.J. 1004(A). See Friedman v. Lubecki, 362 Pa. Super. 499, 504, 524 A.2d 987, 989 (1987) (Rule 1006 provides for the method by which an appeal is to be stricken from the record for failure to comply with Rule 1004). Pursuant to Funk’s praecipe, the prothonotary marked plaintiff’s appeal stricken on May 15, 2009.

Defendant did not furnish to plaintiff any written notice of his intention to strike the appeal prior to the filing of the praecipe. Accordingly, on August 13,2009, plaintiff filed a motion to strike Funk’s praecipe to strike appeal, relying on Pa. R.C.P. 237.1 (a)(2), which reads in pertinent part:

“No judgment of non pros for failure to file a complaint . . . shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered
“(i) in the case of a judgment of non pros, after the failure to file a complaint and at least 10 days prior to the date of the filing of the praecipe to the party’s attorney of record orto the party if unrepresented...(See plaintiff’s motion to strike/petition to open at ¶ 7.)

Alternatively, plaintiff filed a petition to open judgment in which he claims that “[t]he reason the complaint was not timely filed following the filing of the appeal is that plaintiff had hoped to resolve the case without the necessity of additional litigation and expense, and further expected that a praecipe to file a complaint had to be filed by [Funk] prior to the appeal being stricken as required by Pa.R.C.P. 237.1.” (See plaintiff’s motion to strike/ petition to open at ¶ 11.)

Funk filed an answer to plaintiff’s motion to strike judgment/petition to open judgment on August 31,2009. Briefs were subsequently filed by the parties and a praecipe to assign the matter to the court for disposition was filed on November 16,2009. This matter is now ripe for disposition.

II. DISCUSSION

The issue raised through plaintiff’s motion to strike judgment/petition to open judgment is whether the provisions of Pa.R.C.P. 237.1 are part of the procedure for striking an appeal from a MDJ judgment taken by a plaintiff who fails to file a complaint. Although neither party cited any case law in support of their position, this court’s research revealed a decision by the distinguished member of the Pennsylvania Rules Committee, the Honorable Stanley J. Wettick of Allegheny County.

In Seubert and Associates Inc. v. Tiani, 45 D.&C.4th 268 (2000), Judge Wettick addressed this precise issue in a case with substantially similar facts.

In Seubert, the plaintiff had opposed a praecipe to strike appeal pursuant to Pa.R.C.P.D.J. 1006 on the ground that the defendant was obligated to furnish the plaintiff a written notice of his intention to strike the appeal prior to the filing of the praecipe pursuant to Pa.R.C.P. 237.1(a)(2). Judge Wettick held that Rules 237.1-237.6, which govern the entry of judgments of non pros and judgments by default, did not apply because the relief which the defendant had obtained was based upon a rule of civil procedure governing district justice proceedings rather than the rules of civil procedure governing the entry of judgments of non pros and judgments of default. He reasoned as follows:

“The relief that defendant obtained was not based on any rules of civil procedure governing common pleas court proceedings or case law governing the entry of a judgment of non pros. The relief, instead, was based on a rule of civil procedure governing district justice proceedings which provides for the striking of the appeal.
“The striking of an appeal for failure to file a complaint cannot be equated with the entry of a judgment of non pros for failure to file a complaint. When an appeal is stricken, the district justice judgment becomes a final judgment based on the merits of the parties’ claims and defenses. Consequently, the doctrines of res judicata and collateral estoppel bar any further litigation involving the subject matter of the lawsuit. Burr v. Callwood, 374 Pa. Super. 502, 543 A.2d 583 (1988). The judgment of non pros for failure to file a complaint, on the other hand, is not a judgment on the merits. Consequently, the case law permits the plaintiff to institute a second lawsuit raising the same claims. Haefner v. Sprague, 343 Pa. Super. 342, 494 A.2d 1115 (1985).
“In summary, the rules of procedure governing district justice proceedings require the plaintiff who files an appeal to file a complaint within 20 days after the filing of a notice of appeal (Rule 1004A), and it provides the remedy upon failure of the plaintiff to comply: the striking of the appeal which leaves the district justice judgment in full force and effect. These rules are not altered by any of the rules of civil procedure governing common pleas court proceedings, because none of the rules of civil procedure governing common pleas court proceedings address the situation in which a plaintiff who files an appeal from a district justice proceeding fails to comply with Pa.R.C.P.D.J. 1004A.” 45 D.&C.4th at 272-73. (footnote omitted)

See Cruz Accounting Services Inc. v. Lynch, No. 9143 Civil 2003, slip op. (Monroe Cty., May 2004) (relying on Seubert, the court held that provisions of the rules of civil procedure pertaining to entry of non pros are not applicable to district justice proceedings). See also, Independent Technical Services Inc. v. Campo’s Express Inc., 812 A.2d 1238, 1240 (Pa. Super. 2002) (holding that only upon the filing of the complaint is an appeal from the district justice perfected, at which time the action is a de novo proceeding and is subject to the Pennsylvania Rules of Civil Procedure). For the reasons set forth above, defendant Funk did not have to furnish plaintiff any written notice of his intention to strike the appeal from the MDJ judgment prior to the filing of the praecipe. Therefore, we must reject plaintiff’s petition to strike defendant’s praecipe and the MDJ appeal will remain stricken.

It is well established in Pennsylvania, however, that where an appeal has been stricken based upon Pa. R.C.P.M.D.J. 1005B, the court of common pleas may reinstate the appeal upon good cause shown. See Pa.R.C.P.M.D.J. 1006; Voland v. Gray, 438 Pa. Super. 525, 527, 652 A.2d 935, 935-36 (1995). “Good cause” is not defined in the rules governing proceedings before a district judge. Our Superior Court, however, has interpreted this to require the appellant to “proffer some legally sufficient reason for the trial court to reinstate its appeal.” Anderson v. Centennial Homes Inc., 406 Pa. Super. 513, 517, 594 A.2d 737, 739 (1991). See also, Howland, Hess, Guinan & Torpey v. Perzel, 446 Pa. Super. 648, 652, 667 A.2d 1163, 1164 (1995); Slaughter v. Allied Heating, 431 Pa. Super. 348, 350, 636 A.2d 1121, 1123 (1993). Unfamiliarity with the rules, inadvertence on the part of plaintiff’s counsel, pro se status, and the absence of prejudice were all found to be legally insufficient reasons for reinstating an appeal pursuant to Rule 1006. See for example, Slaughter, supra; Anderson, supra; Lattimore Development Associates v. Wiss, 26 D.&C.4th 561 (Pike Cty., 1994); H. John Davis Inc. v. Bloss, 16 D.&C.4th 63 (Monroe Cty., 1992); Harman v. Jaflo Inc., 21 Lycoming Rep. 41 (1999); and Cruz, supra.

Accordingly, plaintiff Hughes is granted leave to file a petition to reinstate appeal pursuant to Pa. R.C.P.M.D. J. 1006, but is cautioned that such a petition will only be granted by this court if a substantial and legally sufficient reason for reinstating the appeal can be established on the facts of the case.

III. CONCLUSION

For the reasons set forth above, plaintiff’s motion to strike/petition to open is denied.

Accordingly, we enter the following:

ORDER

And now, December 4, 2009, upon consideration of plaintiff’s motion to strike judgment/petition to open judgment, defendant’s answer thereto, and the briefs filed by the parties, it is hereby ordered that said motion/petition is denied.

It is further ordered that plaintiff is granted leave to file a petition to reinstate appeal pursuant to Pa.R.C.P.M.D.J. 1006 within 20 days of the date of this order.

      . Defendant Funk allegedly contracted with plaintiff Hughes on or about August 14,2008, for remodeling work at his home at 311 College Avenue in the City of Lancaster. (See plaintiff’s complaint attached as exhibit “B” to plaintiff’s motion to strike/petition to open.) The agreed contract price for these services was $6,116, as set forth in the written proposal signed by defendant on August 14,2008. {Id.) Subsequently, defendant allegedly chose additional services from plaintiff in the amount of $2,235 for a total contract of $8,351, as set forth in an invoice dated September 30, 2008. {Id.) Defendant allegedly made just one payment in January 2008 in the amount of $ 1,525.25, leaving a balance due and owing to plaintiff in the amount of $4,175.50. {Id.)

        . A “letter of explanation” by MDJ Sponaugle, attached to the entry of judgment, indicates that judgment was entered in favor of Funk and against Hughes based on the statutory law of “accord and satisfaction by use of instrument.” See 13 Pa.C.S. §3311. As noted by MDJ Sponaugle, this law provides that where a notation on a check advises that the payment is being made as “payment in full” and there is a bona fide dispute and payment of the instrument is obtained, then the claim will be discharged if it is established that “within a reasonable time before collection of the instrument was initiated, the claimant . . . knew that the instrument was tendered in full satisfaction of the claim.” 13 Pa.C.S. §3311(d). MDJ Sponaugle found that there was a bona fide dispute between the parties in this case, that Hughes was aware of the notation on the check, that Hughes sought legal advice regarding the notation, and that Hughes subsequently spoke to the payor, Funk, about the notation before cashing the check. Accordingly, the judge found that the claim was discharged and Hughes had no right to recovery.

      . The “Notice of Appeal from District Justice Judgment” form filed by Hughes states clearly just below the signature line of the appellant or his attorney: “If appellant was claimant (see Pa.R.C.P.J.P. 1001(6)) in action before district j ustice, he mustfile a complaint within 20 days after filing his notice of appeal. ” (emphasis in original)

      . Rule 1004(A) reads: “If the appellant was the claimant in the action before the magisterial district judge, he shall file a complaint within 20 days after filing his notice of appeal.”

      . Rule 1006 reads: “Upon failure of the appellant to comply with Rule 1004(A)... the prothonotary shall, upon praecipe of the appellee, mark the appeal stricken from the record. The court of common pleas may reinstate the appeal upon good cause shown.”


author: NANOVIC, P.J.,

text:
    In re Termination of Rights of D.A. and L.W.

      Carole J. Walbert, for Carbon County Children & Youth Services.

      MarkE. Combi, forE.M.W.

      Brian B. Gazo, for L.W.
    January 8, 2009
   NANOVIC, P.J.,

The respondent, L.W. (Mother), in the above-captioned termination proceedings has appealed from our order dated October 6, 2008, terminating her parental rights in her son, E.M.W. (child). For the following reasons, it is respectfully requested that Mother’s appeal be denied and that the final decree be affirmed.

FACTUAL BACKGROUND

The final decree entered on October 6,2008, sets forth both the legal and factual basis for the involuntary termination of Mother’s parental rights. Those findings reflect, inter alia, the following.

The child, who is the subject of these proceedings, was born on June 15, 2006 and is now two years old. At the time of his birth, he was taken directly from the hospital by the petitioner, the Carbon County Children and Youth Services Office (hereinafter referred to at times as CYS and at times as the agency), and immediately placed in protective custody. The agency was concerned that the child was in immediate danger of being abused based upon information it had received of severe sexual abuse of the child’s older brother, Jacob, by Mother and his biological father, between January 2005 and September 8,2005. Jacob, who was bom on February 5,2001, was removed from Mother’s home on September 8, 2005.

As part of the family service plan for Jacob, Mother was required to obtain a sexual offender’s evaluation and follow all recommendations thereof and also to obtain a mental health evaluation and receive counseling as recommended. These goals remained in place at the time of the child’s birth and had yet to be complied with by Mother.

A mental evaluation took place in October 2005 and recommended counseling. Mother failed to make arrangements for counseling. Again in October 2006, mental health recommended counseling and Mother failed to make the necessary arrangements. When Mother finally appeared for an intake interview in October 2007, it was determined that she would not benefit from counseling because of impaired judgment and limited insight. Consequently, the request for counseling did not proceed further.

Mother had two sexual offender’s evaluations. The first occurred on April 25, 2006, approximately two months prior to the child’s birth. Weekly treatment was recommended. When Mother failed to attend scheduled appointments and to make any efforts to pay the costs of the counseling, she was unsuccessfully discharged in July 2006. (N.T. 9/19/08, p. 10; N.T. 9/30/08, p. 20.)

The second evaluation occurred in February 2008, following CYS’ referral to Forensic Treatment Services on September 25, 2007. On October 25, 2007, Forensic Treatment Services contacted Mother to schedule an intake appointment. Because of delays attributable to Mother, the evaluation requested in September 2007 did not occur until February 2008.

As part of the evaluation process performed by Forensic Treatment Services, a polygraph examination was administered. In a pre-test interview, Mother admitted that she was aware that Jacob’s father sexually abused him and she did nothing about it. (N.T. 9/19/08, pp. 64-65.) In a post-test interview, Mother admitted that she herself had sexually abused Jacob on two separate occasions. (N.T. 9/19/08, p. 66.)

Based upon Forensic Treatment Services’ evaluation, Mother was once more recommended for weekly sexual offender’s treatment. Again, as previously, she failed to keep appointments and to make an effort to pay the costs. In March 2008, she was discharged and designated by Forensic Treatment Services as an untreated sexual offender. This status placed her at a high risk for re-offense. Forensic Treatment Services recommended that she have no contact with children under 18 years of age, including her own children. (N.T. 9/19/08, p. 13.)

On September 28,2006, Mother pled guilty to a charge of endangering the welfare of children with respect to Jacob. She received a sentence of no less than nine nor more than 23 months in prison, with 30 days credit. In accordance with this sentence, she was in prison from January 22,2007 through August 18,2007. (N.T. 9/30/08, p. 18.) While in prison, CYS did not permit any visits between Mother and the child to occur.

Prior to Mother’s imprisonment on January 22,2007, supervised visits between the child and Mother occurred every other week between June 2006 and January 2007. These visits resumed following Mother’s release from prison in August 2007 and continued until February 2008 when Forensic Treatment Services found Mother was an untreated sexual offender and recommended that she not be in contact with children until treatment was successfully completed. For this reason, no visits have occurred between Mother and child since February 2008.

The child’s entire life to date has been in foster care. He has never lived with his mother and Mother has never provided for any of his physical, emotional, or developmental needs. Mother has not been an active participant in the child’s life and there exists no close parental ties or emotional bonds between the two.

The petition for involuntary termination was filed on February 7,2008. It identifies three grounds for termination: 23 Pa.C.S. §2511(a)(1) (abandonment); section 2511 (a)(2) (neglect); and section 2511 (a)(5) (placement for a period of six months or more with no reasonable likelihood of reunification within a reasonable period of time). Hearings on the petition were held on September 19, 2008 and September 30, 2008. The findings of fact contained in the final decree dated October 6,2008, support the termination of Mother’s parental rights on each of these bases. The reasons Mother has given to reverse our decision are stated in a concise statement of matters complained of on appeal, which Mother filed in response to our Rule 1925(b) order. They are narrow and limited and, we believe, without merit. They are each addressed below.

DISCUSSION

“Parents are required to make diligent efforts towards the ‘reasonably prompt assumption of full parental responsibilities.’ ” In re E.A.P., 944 A.2d 79, 83 (Pa. Super. 2008). “Where the parent does not exercise reasonable firmness ‘in declining to yield to obstacles,” his parental rights may be forfeited.” Id. “Further, parental duty requires that the parent not yield to every problem, but must act affirmatively, with good faith interest and effort, to maintain the parent-child relationship to the best of his or her ability, even in difficult circumstances.” In re J.I.R., 808 A.2d 934, 938 (Pa. Super. 2002), appeal denied, 573 Pa. 672, 821 A.2d 587 (2003).

As of the date of the termination hearing, the child was out of his mother’s care for over two years. Why this occurred is the real question that has to be answered. “The duty of the court under the Juvenile Act to provide rehabilitative services to the parent of a dependent child is recognized as a correlative responsibility, with that of the parent, to satisfy the mandate contained in the Adoption Act, prior to CYS proceeding to petition for involuntary termination of parental rights pursuant to section 2511 (a).” In the Interest of Lilley, 719 A.2d 327, 331 (Pa. Super. 1998). (emphasis added) (footnote omitted) “Where the child is in foster care, this affirmative duty requires the parent to work towards the return of the child by cooperating with the agency to obtain the rehabilitative services necessary for [her] to be capable of performing [her] parental duties and responsibilities.” In re G.P.-R., 851 A.2d 967, 977 (Pa. Super. 2004).

The real reason for the separation between Mother and the child is Mother’s refusal to accept responsibility for the abuse of Jacob and her need for sexual offender’s treatment. (N.T. 9/30/08, p. 51.) Mother argues, at times, that her role in the abuse of Jacob was purely passive; that she was aware of the abuse and did nothing to stop it, hence her limited plea to reckless endangerment of a child. (Concise statement, no. 1.) That stance, however, is not completely accurate. As the evidence developed at trial, not only was Mother aware of the abuse, she was present when Jacob’s father molested him. Further, on at least two occasions that she disclosed to the polygraph examiner, she herself physically and sexually abused Jacob. The need for Mother to successfully complete sexual offender’s treatment before the child can be safely returned to her is undeniable.

Every argument Mother makes as to why she did not promptly obtain a sexual offender’s evaluation and follow through with its recommendation fails. (Concise statement, no. 2.) The question of transportation was addressed by Megan Lukasevich, who testified that she provided Mother with information on who to contact for transportation. (N.T. 9/19/08, pp. 9,32-35.) Not once did Mother testify that she made an effort to contact any of these resources. (N.T. 9/30/08, pp. 12-13.) Further, Mother’s sister and brother-in-law were possible resources and, in fact, provided transportation if she required it on other occasions. (N.T. 9/30/08, p. 29.)

The issue of costs is exaggerated. Mother resided with her own mother and, consequently, her living expenses were reduced. She receives monthly disability payments of $341 and has the ability to be employed part-time. (N.T. 9/30/08, pp. 29-30, 48.) Krista Welter of Forensic Treatment Services testified that they were willing to work with Mother regarding payments and funding, but she made no effort to cooperate. (N.T. 9/19/08, p. 67.)

Even now, Mother questions the need for the sexual offender’s evaluation and refuses to accept responsibility for her failure to successfully complete the sexual offender’s treatment which two separate agencies have recommended. Instead, she argues that the fault is attributable to CYS, in that CYS failed to provide her with the requisite information to obtain the requested services. (Concise statement, no. 4.) This claim ignores the testimony of Megan Lukasevich as to the availability of transportation as well as the referrals and arrangements CYS made to have Mother evaluated and then treated, as recommended. To the extent Mother argues that CYS was obligated to fund the costs of the evaluation and treatment, and its failure to do so was an obstacle to her receipt of these services, Mother cites no authority that CYS was obligated to do so. Cf. In re N. W, 859 A.2d 501, 510 (Pa. Super. 2004) (noting that an agency’s failure to provide either housing or employment does not excuse noncompliance with those goals in a family service plan); In re Baby Boy H., 401 Pa. Super. 530, 534, 585 A.2d 1054, 1056-57 (1991) (finding that actual obstruction by a social agency will excuse failure to perform parental duties). Again, the real cause of noncompliance has been Mother’s failure to come to terms with her situation and make a serious effort to comply with the goals set by CYS.

Mother first contacted Forensic Treatment Services to make an appointment for an evaluation on December 31, 2007, because she was aware that a review hearing in the dependency proceedings was scheduled for January 4, 2008, and that a change in goal from reunification to termination and adoption was apossibility. (N.T. 9/19/08, p. 11; N.T. 9/30/08, p. 33.) Then, approximately one week prior to the September 19,2008 termination hearing, she again contacted Forensic Treatment Services and indicated her willingness to reschedule and be readmitted for treatment. (N.T. 9/19/08, pp. 13,78.) These attempts at delay and manipulation will not be condoned. As observed in In re K.Z.S., 946 A.2d 753, 758 (Pa. Super. 2008),“A parent’s vow to cooperate, after a long period of uncooperativeness regarding the necessity or availability of services, may properly be rejected as untimely or disingenuous.”

It is true that CYS did not permit visits between Mother and the child while she was in prison between February 2007 and August 2007. (Concise statement, no. 3.) This fact, however, does not explain or justify her failure to provide for the child or to perform parental duties for the 14-month period when she was not in prison: the eight-month period between June 15, 2006 and February 2007, and the six-month period between August 2007 and February 2008.

Nor are we convinced that Mother exercised reasonable firmness in maintaining, to the extent possible, a continuing close relationship with the child while she was in prison. “[A] parent’s incarceration does not preclude termination of parental rights if the incarcerated parent fails to utilize given resources and to take affirmative steps to support a parent-child relationship.” E.A.P., 944 A.2d at 83. (emphasis in original) The burden of producing evidence that those resources available to maintain a close parental relationship have been utilized is upon the parent in prison. See e.g., Adoption of Baby Boy A. v. Catholic Social Services, 512 Pa. 517, 521 n.5, 517 A.2d 1244, 1246 n.5 (1986); see also In re C.L.G., 956 A.2d 999, 1006-1007 (Pa. Super. 2008) (holding that where a mother’s addiction to drugs placed her daughter in danger and also led to criminal conduct which resulted in imprisonment it was “the underlying drug issues which preclude[d] Mother from properly caring for [the child], and not the incarceration, which is merely a consequence of Mother’s inability to lead a life free from involvement with drugs”).

The real and still existing cause of her separation from the child has been the delayed evaluation, determination, and treatment of her status as an untreated sexual offender for more than three years. This status makes her a risk to the child and to all children. This status is one for which she bears the responsibility, yet refuses to accept it. This status is the one which has most directly and substantially prevented her from forming and maintaining a relationship with the child. Mother has clearly failed to remedy this status within a reasonable time. (N.T. 9/19/08, p. 16; N.T. 9/30/08, pp. 46-47.)

On January 22,2008, the child’s placement goal in the dependency proceedings was changed from reunification to termination and adoption. (N.T. 9/19/08, p. 6.) This change in goal is significant. “By allowing CYS to change its goal to adoption, the trial court has decided that CYS has provided adequate services to the parent but that he/she is nonetheless incapable of caring for the child and that, therefore, adoption is now the favored disposition.” N. W., 859 A.2d at 509. Once the placement goal has been changed from reunification to adoption, “[t]he adequacy of CYS’ efforts toward reunification is not a valid consideration [in termination proceedings], as the law allows CYS to ‘give up on the parent’ once the service plan goal has been changed to adoption.” In re A.L.D., 797 A.2d 326, 341 (Pa. Super. 2002).

“In In re N. C., the court stated:

“Placement of and custody issues pertaining to dependent children are controlled by the Juvenile Act, which was amended in 1998 to conform to the federal Adoption and Safe Families Act (ASFA).... The policy underlying these statutes is to prevent children from languishing indefinitely in foster care, with its inherent lack of permanency, normalcy, and long-term parental commitment. . . . Consistent with this underlying policy, the 1998 amendments... place the focus of dependency proceedings, including change of goal proceedings, on the child. Safety, permanency, and well-being of the child must take precedence over all other considerations, including the rights of the parents.” 909 A.2d 818, 823 (Pa. Super. 2006). (citations omitted) (emphasis in original) (footnotes omitted)

The ASEA is “designed to curb an inappropriate focus on protecting the rights of parents when there is a risk of subjecting children to long-term foster care or returning them to abusive families.” In re C.B., 861 A.2d 287, 295 (Pa. Super. 2004), appeal denied, 582 Pa. 692, 871 A.2d 187 (2005).

The ASEA recognizes that the safety, permanency and well-being of the child are paramount in his best interests and to his future. 42 U.S.C. §671(a)(15)(A). The ASFA requires that when a child has been in foster care under the responsibility of the state for 15 of the most recent 22 months, the state is required to file a petition to terminate the parental rights of the child’s parents. 42 U.S.C. §675(5)(E). At the time CYS filed the termination petition, the child was in placement for at least 15 of the most recent 22 months. In filing the petition, CYS was doing what the legislature expected and required it to do.

At this point, the child has been in foster care for more than two years. To allow this status to continue indefinitely, in the hope that Mother will eventually receive treatment which she believes is unnecessary and has repeatedly resisted even before the child was bom, is not in the child’s best interest. Instead, we believe that the child’s need for permanency is best achieved by terminating Mother’s parental rights and permitting the child to be adopted by his foster parents.

CONCLUSION

In accordance with the foregoing, it is respectfully requested that Mother’s appeal be denied and that the final decree of termination dated October 6, 2008, be affirmed.

      . The natural father’s parental rights were terminated by final decree dated April 8, 2008. The father has not appealed from that decree.


author: LUDGATE, J,

text:
    Commonwealth v. Kalwaic

      Jason C. Glessner, assistant district attorney, for Commonwealth.

      Roarke T. Aston, for defendant in dockets 3852-07 and 3897-07.

      Burton A. Rose, for defendant in docket 5514-08.
    December 11, 2009
   LUDGATE, J,

DOCKET 3852-07

I. Procedural History

On September 21, 2007, Christopher T. Kalwaic (defendant) was charged by information in docket 3852-07 with open lewdness, 18 Pa.C.S. §5901, recklessly endangering another person, 18 Pa.C.S. §2705, fleeing or attempting to elude police officer, 75 Pa.C.S. §3733(a) and eight summary traffic offenses. The defendant pleaded guilty to open lewdness, 18Pa.C.S. §5901, fleeing or attempting to elude police officers, 75 Pa.C.S. §3733(a) and driving while license is suspended or revoked, 75 Pa.C.S. § 1543(a). The defendant was represented by Attorney Kevin M. Beals at the guilty plea hearing; for sentencing in this docket, the defendant was represented by Attorney Holly B. Feeney.

On August 6,2009, the court sentenced the defendant to four to 12 months state incarceration for Count 1, open lewdness, 18 Pa.C.S. §5901 and 12 months to five years state incarceration followed by two years probation for Count 3, fleeing or attempting to elude police officer, 75 Pa.C.S. §3733(a).

On August 14,2009, the defendant, through Attorney Feeney, filed a post-sentence motion which was denied August 24, 2009. The defendant, through Attorney Roarke T. Aston, filed a timely notice of appeal on September 11, 2009. On October 13, 2009, the defendant timely filed a 1925(b) statement pursuant to order of this court. The same day, counsel was granted time to file a supplemental concise statement within 20 days of receipt of transcripts. On November 9, 2009, Attorney Aston indicated no supplemental 1925(b) statement would be filed.

This opinion is written pursuant to Pa.R.A.P. 1925(a), and for the following reasons, this court respectfully requests the appeal in this docket be denied.

II. Issues Raised by the Defendant

The defendant, through Attorney Aston, raises one issue for review:

“The sentencing court abused its discretion by imposing a state sentence of four months to 12 months, concurrent with 12 months to five years, followed by two years probation where the sentence was not consistent with the protection of the public, the gravity of the offenses as they relate to the impact on the life of the victims and on the community and the rehabilitative needs of defendant, and the factors enumerated in the Sentencing Code do not militate to the sentence imposed in this case.”

III. Analysis

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. Commonwealth v. Burkholder, 719 A.2d 346 (Pa. Super. 1998). This discretion is permitted because the trial court is in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002). “An appellate court will not disturb the lower court’s judgment absent a manifest abuse of discretion. In order to constitute an abuse of discretion, a sentence must either exceed the statutory limits or be so manifestly excessive as to constitute an abuse of discretion. Further, a sentence should not be disturbed where it is evident that the sentencing court was aware of sentencing considerations and weighed the considerations in a meaningful fashion.” Commonwealth v. Fish, 752 A.2d 921, 923 (Pa. Super. 2000). (citation and internal quotations omitted)

At the guilty plea hearing, the following guideline ranges were put on the record as follows.

“Count 1, open lewdness — Offense gravity score (OGS) 1; Prior record score 4; Standard range restorative sanctions — one month; Aggravated range seven months; Mitigated range not applicable;
“Count 3, fleeing or attempting to elude police officer, Offense gravity score (OGS) 3; Prior record score 4; Standard range three to 14 months; Aggravated range 17 months; Mitigated range restorative sanctions.” (N.T., guilty plea, 3/24/2009, p. 9; N.T., sentencing hearing, 8/6/2009, pp. 16-18.)

The court also gave consideration to numerous factors in imposing sentence:

“The Court: The court here today has considered the age of the defendant and the nature of the offenses charged for which he has been convicted of. The court has considered that these offenses occurred at least 12 or 13 times, that is the estimation of how many times he has been convicted of these similar offenses. I’m not talking about over 500 times that he admitted to and was in Dr. Villiere’s report. I’m only talking about convictions.
“I have considered the guidelines that were placed on the record when his pleas were entered. I have considered the plea agreement. I have considered the defendant adopted the changes that were made in the presentence investigation report. I have considered the argument made by the district attorney. I have considered the statement made by defense counsel.
“I certainly understand that everybody is asking me to honor the plea agreement with regard to the case in which Ms. Feeney is the attorney. I understand that Ms. Feeney is asking the court — I’m sorry, Ms. Scheidt is asking the court to place the defendant in Berks County Prison. The court has spent a considerable amount of time reviewing all these documents prior to today, looking at the probable cause, all other charges, getting information from CPCMS. I have a better understanding of what to do with this defendant, knowing that when I sent him to the state penitentiary, back I forgot what year now, for nine months to five years, before he maxed out on that, he was convicted in Lehigh County on another indecent exposure. I do not have anything in there that he was removed or violated.
“I know that in addition to those offenses he’s had the offense of resisting arrest and escape. These other charges go to show that he’s not able to control his behavior. I understand that the doctors said what they said. I understand that he is — he is an exhibitionist. Obviously the court is convinced that he met the standard of sexually violent predator. However, unlike many others where I think one year in jail is not enough, I believe it is.” N.T., sentencing hearing, 8/6/2009, pp.15-16.

The sentence imposed in this docket was not an abuse of discretion as it is within statutory limits and not manifestly excessive in light of the numerous factors considered by the court.

For all the above-mentioned reasons, the court respectfully requests the defendant’s appeal be denied in this docket.

DOCKET 3897-07

I. Procedural History

On September 26, 2007, the defendant was charged by information in docket 3897-07 with fleeing or attempting to elude a police officer, 75 Pa.C.S. §3733(a), possession of drug paraphernalia, 35 P.S. 780-113(a)(32) and three summary traffic offenses. The defendant pleaded guilty to fleeing or attempting to elude police officers, 75 Pa.C.S. §3733(a), possession of drug paraphernalia, 35 P.S. 760-113(a)(32) and driving while license is suspended or revoked, 75 Pa.C.S. § 1543(a). The defendant was represented by Attorney Kevin M. Beals at the guilty plea hearing; for sentencing in this docket, the defendant was represented by Attorney Holly B. Feeney.

On August 6,2009, the court sentenced the defendant to two years special probation for Count 1, fleeing or attempting to elude police officers, 75 Pa.C.S. §3733(a), consecutive to Count 3 of docket 3852-07 and one year special probation for Count 2, possession of drug paraphernalia, 35 P.S. 780-113(a)(32), concurrent with Count 1 and consecutive to Count 3 of docket 3852-07.

On August 14,2009, the defendant, through Attorney Feeney, filed a post-sentence motion in this docket which was denied August 24, 2009. The defendant, through Attorney Roarke T. Aston, filed a timely notice of appeal on September 11,2009. On October 13,2009, the defendant timely filed a 1925(b) statement pursuant to order of this court. The same day, counsel was granted time to file a supplemental concise statement within 20 days of receipt of transcripts. On November 9, 2009, Attorney Aston indicated no supplemental 1925(b) statement would be filed.

This opinion is written pursuant to Pa.R.A.P. 1925(a), and for the following reasons, this court respectfully requests the appeal in this docket be denied.

II. Issues Raised by the Defendant

The defendant, through Attorney Aston, raises the following two issues for review:

“(1) The trial court erred in accepting defendant’s guilty plea as it was not knowing, voluntary and intelligent when he was not appraised at the guilty plea colloquy of the presumption that he is innocent until proven guilty, the elements of the charges levied by the Commonwealth, that he has a right to trial by jury, the virtues of a trial by jury and that the court did not have to accept the terms of his plea agreement and was free to sentence defendant to the sentence it deemed fit within the confines of the law. Pa.R.Crim.P. 590.”

III. Analysis

The defendant signed a “statement accompanying defendant’s request to enter a guilty plea”, indicating, inter alia:

“(10) I understand that I am presumed to be innocent, unless and until the Commonwealth proves that I am guilty of the offenses with which I am charged, beyond a reasonable doubt.
“(11)1 understand I have the right to a jury trial in this case. The jury would consist of 12 principal jurors and may include alternates. Before the jury could reach a verdict, all 12 jurors would have to unanimously agree on whether I am guilty or not guilty....
“(14) I understand the nature of the charges to which I am pleading guilty....
“(18) I understand the maximum permissible sentence for each of the charges against me, and I understand that if this is an open plea or charge agreement, the judge may sentence me to the maximum sentence allowed by law, and may impose the sentence for each count to which I am pleading guilty consecutively, for a total possible sentence of: 3 Years Jail + a $7,700 Fine (in Addition to the Máximums in Case nos. 3852-07 + 5514-08)” Statement accompanying defendant’s request to enter a guilty plea, 3/25/09, p. 2. Furthermore, the following colloquy with the defendant occurred on the record, with the defendant under oath:
“The Court: First, the court will review with the defendant the documents that the court has received. In all of these docket numbers, Mr. Kalwaic, the court has received statements [sic] say across the top statement accompanying defendant’s request to enter a guilty plea. Do you understand what written statements I am referring to?
“The Defendant: Yes, your honor.
“The Court: When you reviewed these written statements with your lawyers, did you tell the truth in all your answers?
“The Defendant: Yes, your honor, I did.
“The Court: Have you had any medication, any drugs, or any alcohol or illegal drugs in the last 48 hours?
“The Defendant: No, your honor, I have not.
“The Court: Have you spoken to your lawyer, Mr. Beals, and to your lawyer, Ms. Scheidt?
“The Defendant: Yes, your honor, I have.
“The Court: Are you satisfied with the services provided to you by Mr. Beals?
“The Defendant: Yes, your honor.
“The Court: Are you satisfied with the services provided to you by Ms. Scheidt?[]
“The Defendant: Yes, your honor.
“The Court: Now, first, we are going to look at 3897 of 2007. There I see that in exchange for a plea to attempting to elude a police officer the plea agreement calls for two years probation; Count 2, possession of drug paraphernalia, that’s one year of probation; Count 4, driving while operating privilege is suspended or revoked, the plea agreement is a $200 fine which is mandatory. These are both consecutive to whatever happens in the other two docket numbers, which are 3852 of 2007 and 5514 of 2008. Is that what you understand as happening?
“The Defendant: Yes, your honor, I do.” (N.T., guilty plea, 3/24/09, pp. 4-6.)

The defendant’s claim he was not apprised of his rights prior to pleading guilty is refuted by the record.

“(2) The trial court erred in not allowing defendant to withdraw his guilty plea post-sentence as not doing so results in manifest injustice, Commonwealth v. Starr, 450 Pa. 485, 490-91, 301 A.2d 592, 595 (1973), as defendant is actually innocent of the charges levied by the Commonwealth and because the guilty plea was not knowing, voluntary and intelligent.”

There is no absolute right to withdraw a guilty plea, and the decision as to whether to allow a defendant to do so is a matter within the sound discretion of the trial court. Commonwealth v. Muhammad, 794 A.2d 378, 382 (Pa. Super. 2002). To withdraw a plea after sentencing, a defendant must make a showing of prejudice amounting to “manifest injustice.” Id. at 383. “A plea rises to the level of manifest injustice when it was entered into involuntarily, unknowingly or unintelligently.” Commonwealth v. Ingold, 823 A.2d 917, 920 (Pa. Super. 2003). A defendant’s disappointment in the sentence imposed does not constitute “manifest injustice.” Muhammad, 794 A.2d at 383. Pennsylvania courts presume that a defendant who enters a guilty plea was aware of what he was doing. Commonwealth v. Stork, 737 A.2d 789, 790 (Pa. Super. 1999). He bears the burden of proving otherwise. Id. A person who elects to plead guilty is bound by the statements he makes in open court while under oath and he may not later assert grounds for withdrawing the plea which contradict the statements he made at his plea colloquy. Id. at 790-91.

Based upon the holding in Stork, the defendant’s post-sentence assertion of his factual innocence is of no moment. The facts of this docket were placed on the record at the guilty plea hearing:

“On August 28, 2007, Officer Douglas Brown of the Bern Township Police Department attempted to stop the defendant’s vehicle for going 77.4 miles per hour in a 55 mile per hour zone. The defendant failed to stop for the officer after being given audible and visual signals to do so. Upon hitting a curb, the defendant stopped; upon being taken into custody, the defendant was found to be in possession of a multi-colored ceramic pipe used to ingest marijuana.” (N.T., guilty plea, 3/24/2009, pp. 14-15.)

The defendant then admitted those facts to be correct. (N.T., guilty plea, 3/24/2009, p. 15.)

For all the above-mentioned reasons, the court respectfully requests the defendant’s appeal be denied in this docket.

DOCKET 5514-08

I. Procedural History

On December 30,2008, the defendant was charged in docket 5514-08 with open lewdness, 18 Pa.C.S. §5901, indecent exposure, 18 Pa.C.S. §3127(a), three counts of unlawful contact with a minor, 18 Pa.C.S. §6318(a)(2) and three counts of unlawful contact with a minor, 18 Pa.C.S. §6318(a)(1). The defendant pleaded guilty to indecent exposure, 18 Pa.C.S. §3127(a) and three counts of unlawful contact with a minor, 18 Pa.C.S. §6318(a) (1). The defendant was represented by Attorney Jill M. Scheidt at the guilty plea hearing and Megan’s Law sentencing hearing.

On August 6, 2009, the court held a Megan’s Law sentencing hearing due to the defendant’s guilty pleas to three counts of unlawful contact with a minor. At the hearing, the Commonwealth presented the report and testimony of Dr. Veronique Valliere. Dr. Valliere has been a licensed psychologist in Pennsylvania since 1995 and holds a bachelor’s degree in clinical psychology and a doctoral degree in psychology. (N.T., Megan’s Law hearing, 8/6/2009, p. 6.) Dr. Valliere has treated sex offenders since 1994. (N.T., 8/6/2009, p. 6.) Dr. Valliere had previously qualified as an expert witness in court “several hundred times”, including in Berks County. (N.T., 8/6/2009, pp. 6-7.)

In preparing her report, Dr. Valliere reviewed numerous documents including six probable cause affidavits, a Berks County Court order for an evaluation by the Sexual Offenders Assessment Board (SOAB), a Cumru Township Police incident report, 11 criminal action documents, four criminal docket documents, one docket information, a SOAB investigator’s report, a letter from attorney outlining defendant’s participation, a neuropsychological evaluation by S. Pullman Ph.D., 15 police criminal complaints, one polygraph examination report, the defendant’s pre-sentence investigation report, nine probable cause for warrant of arrest documents, Berks County Juvenile Probation record, Berks County Prison records, a sexual evaluation by S. Kraus Ph.D., the defendant’s school transcripts and the vitae of S. Ullman. (N.T., 8/6/2009, pp. 72-73.) These documents showed “many other arrests for open lewdness, indecent exposure, and ... things like public masturbation, exposing himself to females of all ages.” (N.T., 8/6/2009, p. 11.) The defendant did not participate in the evaluation. (N.T., 8/6/2009, pp. 9, 72.)

Dr. Valliere concluded the defendant’s primary diagnosis is exhibitionism, a motivating, persistent and longstanding deviant sexual arousal based on exposing himself to non-consensual others. (N.T., 8/6/2009 p. 10.) Dr. Valliere testified “Mr. Kalwaic definitely has a mental abnormality that meets the criteria of the statute,” that abnormality being Dr. Valliere’s primary diagnosis of exhibitionism. (N.T., 8/6/2009, p. 11.) Dr. Valliere testified the defendant also has antisocial personality disorder “which exacerbates his amenability to treatment and his difficulty responding to the legal and therapeutic interventions that he has had over the years.” Based upon this diagnosis, Dr. Valliere concluded the defendant is a sexually violent predator. (N.T., 8/6/2009, pp. 9, 17, 79.)

Dr. Valliere was provided, and included in her report, eiToneous information stating the defendant had been convicted of aggravated assault andDUI. (N.T., 8/6/2009, p. 15.) However, Dr. Valliere testified that even without this erroneous information, her conclusions were unaltered. Id. In fact, Dr. Valliere was “relieved” to learn the information was untrue because “that kind of behavior did not seem like part of his... overall criminal pattern.” Id. When preparing her report, Dr. Valliere was also under the impression that the three victims in this docket were 13 years of age, when they were in fact 16 years of age. (N.T., 8/6/2009, p. 17.) Correction of this fact also did not change Dr. Valliere’s conclusion. Id.

The defendant presented the testimony of Dr. Sarah Ullman. (N.T., 8/6/2009, pp. 29-60.) Dr. Ullman had never, prior to this hearing, been qualified as an expert witness. (N.T., 8/6/2009, p. 31.) The Commonwealth did not object to qualifying Dr. Ullman as an expert. Id. The defendant was being treated by Dr. Ullman. (N.T., 8/6/2009, p. 32.) Dr. Ullman stated the defendant does not meet the definition of a sexually violent predator. (N.T., 8/6/2009, p. 35.)

The court found the defendant to be a sexually violent predatorpursuantto42Pa.C.S. §9791 etseq. and ordered the defendant to register as a sex offender for the rest of his life. The court sentenced the defendant to 12 months to five years state incarceration, concurrent with Count 1 of docket 3852-07, for Count 2, indecent exposure, 18 Pa.C.S. §3127(a). For each of the three counts of unlawful contact with a minor, 18 Pa.C.S. §6318(a)(1), the defendant was sentenced to a split sentence of 12 months to five years state incarceration, concurrent with Count 2, each other count of unlawful contact with a minor, and docket Count 1 of 3852-07, followed by two years special probation, concurrent with Count 3 of docket 3852-07 and each other count of unlawful contact with a minor.

On August 14,2009, the defendant, through Attorney Holly B. Feeney, filed a post-sentence motion in this docket which was denied August 24, 2009. The defendant, through Attorney Burton A. Rose, filed a timely notice of appeal on September 11, 2009. On November 5,2009, the defendant timely filed his 1925(b) statement pursuant to order of this court, following an extension of time granted September 28, 2009.

This opinion is written pursuant to Pa.R.A.P. 1925(a), and for the following reasons, this court respectfully requests the appeal in this docket be denied.

II. Issues Raised by the Defendant

The defendant, through Attorney Rose, raises the following issues for review:

“(1) The defendant contends that the lower court erred in declaring that the appellant is a sexually violent predator in her ruling to that effect on August 6, 2009. The defendant submits that the Commonwealth failed to prove by clear and convincing evidence that he is a sexually violent predator who is likely to engage in predatory sexually violent offenses due to a mental abnormality or personality disorder. Furthermore, the Commonwealth failed to prove by clear and convincing evidence that the defendant is likely to engage in acts directed at a stranger or at a person with whom a relationship has been initiated, established, maintained or promoted in whole or in part, in order to facilitate or support victimization.
“(a) The testimony of Commonwealth expert witness Dr. Veronique Valliere on August 6,2009 failed to meet the above noted standards. Dr. Valliere opined that the appellant has suffered from exhibitionism for a period in excess of 15 years, which was not based upon pedophilia. (N.T. 8/6/09, 10, 16.) According to Dr. Valliere, the defendant did not suffer from a mental abnormality (N.T. 8/6/09, 12), but rather his conduct was motivated by exhibitionism. (N.T. 8/6/09, 16.) Therefore, this testimony did not meet the standards set forth in the Act.
“(b) The defendant respectfully submits that there was not clear and convincing evidence to establish that the appellant’s acts in the future would be directed, in whole or in part, in order to facilitate or support victimization; rather it appears that the appellant has exposed himself to others for self-gratification and not for the purpose of making the observer into a ‘victim’. (N.T. 8/6/09,27,43, 59, 65.) Furthermore, the evidence suggests that the appellant has never escalated that exhibitionistic behavior beyond open lewdness and has not engaged in any conduct which could be fairly characterized as sexual violence.
“(c) In view of the factors set forth in 42 Pa.C.S. §9795.4, the appellant respectfully submits that the lower court has erred in determining that the appellant should be classified as a sexually violent predator.”

III. Analysis

42 Pa.C.S. §9791 et seq., commonly known as “Megan’s Law,” requires the trial court to determine whether a defendant convicted of a qualifying predicate offense is a “sexually violent predator” (S VP) based upon expert assessment. 42 Pa.C.S. §9795.4. SVP is defined as:

“[a] person who has been convicted of a sexually violent offense as set forth in section 9795.1 (relating to registration) and who is determined to be a sexually violent predator under section 9795.4 (relating to assessments) due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.” 42 Pa.C.S. §9792.

Predatory is defined as “[a]n act directed at a stranger or at a person with whom a relationship has been initiated, established, maintained or promoted, in whole or in part, in order to facilitate or support victimization.” Id. Section 9795.4(b) requires that an assessment shall include, but not be limited to, an examination of the following:

“(1) Facts of the current offense, including:
“(i) Whether the offense involved multiple victims.
“(ii) Whether the individual exceeded the means necessary to achieve the offense.
“(iii) The nature of the sexual contact with the victim.
“(iv) Relationship of the individual to the victim.
“(v) Age of the victim.
“(vi) Whether the offense included a display of unusual cruelty by the individual during the commission of the crime.
“(vii) The mental capacity of the victim.
“(2) Prior offense history, including
“(i) The individual’s prior criminal record.
“(ii) Whether the individual completed any prior sentences.
“(iii) Whether the individual participated in available programs for sexual offenders.
“(3) Characteristics of the individual, including
“(i) Age of the individual.
“(ii) Use of illegal drugs by the individual.
“(iii) Any mental illness, mental disability or mental abnormality.
“(iv) Behavioral characteristics that contribute to the individual’s conduct.
“(4) Factors that are supported in a sexual offender assessment field as criteria reasonably related to the risk of the offense.”

In reviewing the sufficiency of the evidence regarding the determination of sexually violent predator status, an appellate court will reverse the trial court only if the Commonwealth has not presented clear and convincing evidence sufficient to enable the trial court to determine that each element required by the statute has been satisfied. Commonwealth v. Dixon, 907 A.2d 533 (Pa. Super. 2006). Clear and convincing evidence requires evidence that is so clear, direct, weighty and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. Id. In reviewing an SVP determination, the appellate court must view the evidence in the light most favorable to the Commonwealth; the appellate court may not reweigh the evidence or substitute its judgment for that of the trial court. Commonwealth v. Fuentes, 2009 Pa. Super. 149.

In this docket, the defendant pleaded guilty to three counts of unlawful contact with a minor, 18 Pa.C.S. §6318(a)(1). The facts, as placed on the record prior to acceptance of the guilty plea, are as follows:

“[0]n November 10, 2008, the defendant was in a vehicle traveling in the area of High Boulevard and Taskar Avenue, Cumru Township, Berks County, Pennsylvania and at that time he came up upon three juvenile females... all 16 years old at that time. They were actually walking and were pedestrians at that time. And they — the defendant said something to them and they didn’t quite understand what he said so they asked him what he, in fact, said to them and he replied make me come. At the same time they noticed that he was masturbating and had exposed his penis to them thereby exposing his genitals in a public place where others were present, where they would be affronted, annoyed or alarmed, these victims being less then — well, they being minors under the age of 18, intentionally having contact with them for the purpose of engaging in sexual activity prohibited in this case, indecent exposure.” N.T., guilty plea, 3/24/2009, pp. 15-16.

Defense counsel’s argument that this court found the defendant to be a SVP by insufficient evidence because Dr. Valliere testified the defendant did not suffer from a mental abnormality is based on testimony taken grossly out of context, and is refuted by the complete record. Dr. Valliere’s testimony, when read in the context in which it was given, refutes counsel’s argument:

“Q: [L]et me make sure I have it right. The antisocial personality disorder.,and exhibitionism, are those personality disorders or mental abnormalities?
“A: And antisocial personality disorder, and the exhibitionism is — there is no mental abnormality. It is a legal word. But exhibitionism is a diagnosis that motivates the criminal behavior captured under the law described as a mental abnormality.” N.T., 8/6/2009, p. 12.

Furthermore, as previously stated, Dr. Valliere specifically testified the defendant has a mental abnormality within the statutory definition, being exhibitionism. (N.T., 8/6/2009, p. 11.)

Counsel’s second argument, that this court erred in finding the defendant to be a SVP due to insufficient evidence to establish the defendant’s acts in the future would be directed to support victimization, is also refuted by the record. Dr. Valliere was found credible by this court. The testimony of the defendant’s expert witness, Dr. Sarah Ullman, was rejected by this court. Dr. Valliere testified the defendant is “highly predisposed” to exposing his genitals to someone with non-consent,

basing her conclusion in part on the fact the defendant has repeated this action previously. (N.T., 8/6/2009, p. 27.)

The defendant erroneously states there were no victims here. If exposing ones genitalia to a non-consenting person were accepted in this Commonwealth, there would be no statute making it a crime. Now, after years of exposing himself to numerous victims, the three victims in this case to whom the defendant exposed himself were minor children.

For all the above-mentioned reasons, the court respectfully requests the defendant’s appeal be denied in this docket.

      . Count 2 in docket 3852-07 was dismissed on August 6, 2009. Order in disposition of charges, 8/6/09.

      . The court jointly enumerated the reasons for the sentence in all three dockets.

      . Attorney Scheidt represented the defendant in docket 5514-08, not docket 3897-07, from which counsel makes the instant claim of error. The court includes questioning regarding the services of both lawyers for purposes of providing a complete record.