author: KUNSELMAN, J,

text:
    Montagazzi v. Crisci

      Craig Fishman, for plaintiffs.

      Paul Walsh, Tom McDonnell, John Biondi, Michael Lang and Douglas Stipanovich for defendants.
    May 29, 2009
   KUNSELMAN, J,

I. INTRODUCTION

Fifteen-year-old Matthew Montagazzi and four of his friends decided to make a homemade explosive device as entertainment on a summer afternoon in June 2005. They gathered most of the materials from Matthew’s house, and went to another boy’s house to ignite their creation. All of the boys knew it was dangerous to play with explosives.

The device did not explode on the first attempt. Matthew retrieved it and one of the boys relit it. Before Matthew could throw the device, it exploded in Matthew’s hand.

Matthew and his parents sued the four other boys for the injuries to Matthew’s hand. In their motions for summary judgment, the other boys claim (1) that they did not owe a duty to Matthew to warn or stop him, and (2) that Matthew assumed the risk of harm when he voluntarily chose to hold the explosive device when it was lit. For the reasons that follow, this court is granting summary judgment.

IF LEGAL ANALYSIS

Matthew and his parents sued the other boys, Nicholas Crisci, Bryan Bachman, Ryan Derbaum, and Jimmy Pratte, for negligence. Matthew’s claims against all four boys are identical; he claims the boys (a) failed to warn him not to construct the device, (b) failed to stop construction of the device, (c) supplied the materials to construct the device and (d) participated in the plan with four other boys to construct the fireworks.

To prove negligence, a party must show that the other party owed him a duty of care. Whether a duty exists under a particular set of facts is a question of law. Campisi v. Acme Markets Inc., 915 A.2d 117, 119 (Pa. Super. 2006). (citation omitted) A primary element in any negligence claim is that the defendant owes a duty of care to the plaintiff; a negligence claim must fail if the law imposes no duty of care in favor of the plaintiff under the circumstances. Gutteridge v. A.P. Green Services Inc., 804 A.2d 643 (Pa. Super. 2002).

The boys claim they owed Matthew no duty of care, and therefore summary judgment is proper. To determine whether the other boys owed a duty to protect Matthew, this court turns to the Restatement (Second) of Torts §314, which provides:

Section 314 Duty to act for protection of others:
“The fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.”

This section of the Restatement was adopted by the Supreme Court of Pennsylvania in Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959). Section 314A of the Restatement (Second) of Torts sets forth the principle relationships which give rise to a duty to protect. They include a common carrier to his passengers, an innkeeper to his guests, a possessor of land to those who enter upon the land in response to an invitation, and one who takes custody of another so as to deprive the other of the normal opportunities to protect himself. An additional relationship involves an employer to his employee. Section 314A comment a. In this case, none of these special relationships existed between Matthew and the other boys.

a. Did the Boys Owe a Duty to Matthew To Warn Him About the Explosive Device Due to a Joint Enterprise?

Matthew claims the other boys owed him a duty to warn him about the explosive device, because they were all engaged in a joint enterprise. He argues that each member of the joint enterprise owes the other a duty to warn them of the dangers involved in their activity. To support his argument, Matthew relies on a decision from a federal court, the 7th Circuit, in Orthmann v. Apple River Campground Inc., 757 F.2d 909, 912 (7th Cir. 1985) and the Restatement (Second) of Torts §491.

The Restatement (Second) of Torts §491(2) allows a member of a joint enterprise to sue other members of the joint enterprise if their negligence caused an injury. The Restatement, however, does not impose a duty upon one member of a joint enterprise to warn other members of a joint enterprise of the risk of harm associated with an activity. In fact, section 491 of the Restatement makes no mention of a duty to warn. Thus, Matthew’s reliance on this section is misplaced.

Matthew’s argument that the members of a joint enterprise have a duty to warn other members about the dangers associated with their activity under the decision in Orthmann v. Apple River Campground Inc. also has no merit. Matthew’s interpretation of the law in this case, which is only persuasive authority in Pennsylvania state court, is wrong.

The duty to warn in Orthmann did not arise because the parties were members of a joint enterprise, but because of their relationship as a landowner and a business invitee. Contrary to Matthew’s argument that the plaintiff and the defendants in Orthmann were part of a joint enterprise, the joint enterprise in Orthmann was between the various defendants: a campground, a restaurant and other businesses in Somerset, who joined together in a commercial venture (the “Floater’s Association”) to promote inner tubing on the Apple River. On the day of the incident, Orthmann rented an inner tube from the campground. There were no allegations that the plaintiff, Orthmann, was part of any joint enterprise.

Instead, the duty to warn the plaintiff in Orthmann arose from one of the special relationships set forth in Restatement §314A, namely a possessor of land and a business invitee. Orthmann paid a fee to use an inner tube on the river. The court specifically observed that Orthmann was not a licensee, e.g., using the river with permission, but a business invitee, who paid a fee, and therefore was owed a higher duty of care by the defendants.

There is no similar relationship between the parties in this case. This case is not between a landowner and a business invitee; it is a case between one boy and four of his buddies. There is no higher duty of care owed among any of them.

Here, this court does not need to decide whether the boys were engaged in a joint enterprise, because it has no effect on the decision. Even if they were involved in a joint enterprise, there is no duty of care that arises from this relationship. This is not a case where some third party was injured by the actions of one of the boys, who plaintiff alleges were acting in concert. If it were, this court might need to decide whether the negligence of one of the boys could be imputed to all of them. See Johnson v. Hetrick, 300 Pa. 225, 150 A. 477 (1930) (if a third party is involved, the negligence of one member of a joint enterprise may be imputed to the others). However, the rule of imputed negligence does not apply in an action between one member of a group and another member of the same group. Id. at 231, 150 A. at 479-80.

This court finds that the joint enterprise doctrine has no application to this case; this court will not impute any negligence on behalf of one boy on all of the boys. Instead, this court must determine whether any of the boys were individually negligent, by breaching a duty to Matthew. This court finds that the other boys did not owe Matthew any duty to warn him of the dangers of the explosive device or warn him not to construct the device.

b. Did the Boys Owe a Duty to Matthew for Placing Him in a State of Peril?

In addition to the failure to warn, Matthew argues that the other boys were negligent for failing to stop the construction of the device, for supplying the component parts of the explosive device, and for participating in a plan to construct the device. Essentially, Matthew argues that the other boys placed him in a state of peril, and therefore owed a duty to protect him.

The boys owed a duty to Matthew if they placed him in a state of peril and then failed to control a force which was under their control. See Restatement (Second) of Torts §314, comment d.

This court finds that failing to stop the construction of the device, supplying the component parts and participating in a plan to build the device are not enough to give rise to a duty on behalf of the other boys. These actions did not place Matthew in a state of peril. If the boys had simply constructed the device and gone their separate ways, no one would have been injured. It was the lighting of the device which placed Matthew in the state of peril that eventually caused the harm.

Matthew does not allege negligence on the part of any of the boys for actually lighting the device. However, because he could likely amend his complaint prior to trial to include this specific allegation of negligence, we will assume for the sake of argument that this allegation was pled. See Connor v. Allegheny General Hospital, 501 Pa. 306, 310-11, 461 A.2d 600, 602 (1983) (A party may amend a pleading if the amendment does not change the cause of action but merely amplifies that which has already been averred).

As a matter of law, this court believes the only defendant who may have placed Matthew in a state of peril and failed to take steps to prevent the continuance of the peril is the boy who lit the device, defendant Ryan Derbaum. Ryan was 12 years old at the time of the incident. It would be a question for the jury whether Ryan appreciated the risk and acted negligently when he lit the device and/or failed to stop the detonation of the device.

As to the remaining defendants, summary judgment is proper as a matter of law, because they did not actively place Matthew in a state of harm due to an active force that was within their control, and therefore they owed him no duty.

Our analysis with respect to Ryan Derbaum does not end, however, with our findings under the Restatement §314A, comment d, as this court must examine the defendants’ other arguments, whether the no-duty rule absolves the boys of any duty under the facts of this case, and whether Matthew voluntarily assumed the risk.

c. Are the Boys Relieved of Any Duty to Matthew Under the “No-Duty”Rule?

Analyzing the claim as one of negligence, the other boys argue that they are entitled to summary judgment, because they did not owe a duty to Matthew under the “no-duty” rule. Pennsylvania has adopted a “no-duty” rule which states that “a defendant owes no duty of care to warn, protect or insure against risks which are ‘common, frequent or expected’ and ‘inherent’ in an activity.” Craig v. Amateur Softball Assocication of America, 951 A.2d 372, 375 (Pa. Super. 2008); citing Jones v. Three Rivers Management Corp., 483 Pa. 75, 85, 394 A.2d 546, 551 (1978). Matthew argues that the “no-duty” rule does not apply to these facts, because there is no amusement or athletic facility involved. This court agrees with Matthew.

The Superior Court discussed the no-duty rule in Telega v. Security Bureau Inc., 719 A.2d 372 (Pa. Super. 1998):

“Jones is the seminal case discussing the ‘no-duty’ rule in Pennsylvania as it applies to recovery for claims filed against amusement facilities by injured spectators and patrons. This rule, which is related to, but distinct from, the affirmative defense of assumption of the risk . . . recognizes that there are certain inherent risks assumed by spectators or patrons when viewing sporting events or participating in amusements against which the amusement facility has no duty to protect.” Telega, 719 A.2d at 374-75. (citations omitted)

Based on this discussion by the Superior Court, this court is compelled to hold that the “no-duty” rule does not apply to the facts of this case, but is limited to cases involving injured spectators, patrons or participants at amusement facilities. Thus, the boys would not be relieved of any duty to Matthew under the “no-duty” rule.

d. Did Matthew Assume the Risk of Injury by Holding the Explosive Device When It Was Lit?

The boys’ final argument in favor of summary judgment is that Matthew assumed the risk of injury by holding the explosive device when it was lit. Matthew claims the assumption of the risk defense is no longer valid in Pennsylvania, except in limited circumstances not present in this case. To support this claim, Matthew relies on the Supreme Court decision in Rutter v. The Northeastern Beaver County School District, 496 Pa. 590, 437 A.2d 1198 (1981). In Rutter, a plurality of the Supreme Court sought to abolish the doctrine of assumption of the risk, except where expressly preserved by statute, or cases of express assumption of the risk, or cases brought under 402A (strict liability).

Two years after Rutter, the court again addressed the assumption of the risk issue in Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983). In Carrender, there was no question that the risk assumed by the plaintiff was intelligently and voluntarily taken, and the court decided there was no duty as a matter of law. “Although the question of whether a danger was known or obvious is usually a question of fact for the jury, the question may be decided by the court where reasonable minds could not differ as to the conclusion.” Carrender, 503 Pa. at 185-86, 469 A.2d at 124.

Ten years after Carrender, the Supreme Court again reached a plurality decision on an assumption of the risk case, in Howell v. Clyde, 533 Pa. 151, 620 A.2d 1107 (1993). There, the plurality decided that the assumption of the risk analysis must be applied by the court as part of the duty analysis and not as part of the case to be determined by the jury. Id. at 162, 620 A.2d at 1112-13. The court held that a “court may determine that no duty exists only if reasonable minds could not disagree that the plaintiff deliberately and with the awareness of specific risks inherent in the activity nonetheless engaged in the activity that produced his injury.” Id. at 162, 620 A.2d at 1113.

Thus, under both Carrender and Howell, the assumption of the risk analysis is incorporated in the duty analysis. Under Howell the duty/assumption of risk analysis was a question of law for the court. Howell, 533 Pa. at 162, 620 A.2d at 1113. Under Carrender, the issue is one for the jury unless reasonable minds could not disagree. Carrender, 503 Pa. at 186, 469 A.2d at 124.

Because Howell was only a plurality ruling, it does not displace the prior majority ruling of Carrender. Plurality opinions, by definition, establish no binding precedent for future cases. E.g., Commonwealth v. Bethea, 574 Pa. 100, 111, 828 A.2d 1066, 1073 (2003); Hoy v. Angelone, 554 Pa. 134, 144, 720 A.2d 745, 750 (1998); see also, Interest of O.A., 552 Pa. 666, 676 n.4, 717 A.2d 490, 496 n.4 (1998) (opinion announcing judgment of court by Cappy, J.) (“While the ultimate order of a plurality opinion; i.e., an affirmance or reversal, is binding on the parties in that particular case, legal conclusions and/or reasoning employed by a plurality certainly do not constitute binding authority.”). Thus, this court must follow Carrender.

This court finds that reasonable minds could not disagree that a 15-year-old understood and appreciated the risks inherent in the activity of holding an explosive device while it was lit. All of the defendants, therefore, had no duty to Matthew, because he voluntarily chose to encounter a dangerous condition which was both obvious and avoidable.

This court notes that the facts of this case are very similar to those in Howell v. Clyde. Howell was a guest at a party at the home of the defendant, who suffered injuries when a fireworks cannon exploded. Howell supplied the gunpowder and participated in loading it'into the cannon before ignition. The Supreme Court plurality determined that the host owed him no duty.

Likewise, this court holds that the other boys did not owe a duty to Matthew, who supplied most of the parts of the homemade explosive device and voluntarily chose to hold the device while it was lit. Although under Car-render this would normally be a question for the jury, this court believes reasonable minds could not disagree that Matthew voluntarily encountered a known and obvious risk.

Matthew argues that he did not anticipate the device would detonate prematurely, and therefore was not aware of the specific risk involved. This argument is without merit. At 15 years old, Matthew certainly knew the dangers of playing with firecrackers and gunpowder. He chose to encounter those risks, including the risk that it could explode at any time, when he voluntarily held the device when it was lit. The fact is, Matthew chose to play with fire and he got burned. As a matter of law, this court cannot find that the other boys owed Matthew any duty, and that Matthew assumed the risks associated with his actions.

III. CONCLUSION

This court finds that there was no special relationship between Matthew and the other boys that would give rise to a duty to warn him of the dangers of holding an explosive device while it was lit. The joint enterprise theory has no application to the facts of this case, and does not give rise to a duty on the part of one member of a joint enterprise to warn another member of a risk of harm. The no-duty rule has no application to the facts of this case and does not relieve the boys of any duty they might have to protect Matthew. Three of the boys, Nicholas, Bryan and Jimmy, did not place Matthew in a state of peril simply by failing to stop construction of the device, supplying materials and/or participating in a plan to construct the explosive device, and therefore they owed him no duty. One of the boys, Ryan, did place Matthew in a state of peril and may have owed him a duty because he actually lit the explosive device. However, this court finds that all of the boys, including Ryan, are relieved of any duty they may have had to Matthew, because reasonable minds could not differ that Matthew voluntarily chose to encounter a known risk of holding an explosive device while it was lit. Accordingly, this court enters summary judgment in favor of all of the defendants in the attached order.

ORDER

And now, May 29, 2009, it is hereby ordered that the motions for summary judgment filed by each of the defendants in this matter are granted. Judgment is entered on behalf of all of the defendants and against the plaintiffs.


source: Caselaw Access Project

author: RUEST, J.,

license: Public Domain

text:
    Neff v. PennDOT

      Michael W. Zimecki, for plaintiffs.

      John J. Hatzell Jr., for defendants.
    May 11, 2009
   RUEST, J.,

Before the court are defendants’ PennDOT and New Enterprise Stone and Lime Company Inc. (NESL) motion for summary judgment, filed on February 17,2009. A hearing on the motion was held on March 27, 2009. Both parties submitted briefs. The court determines defendants’ motion for summary judgment is denied.

BACKGROUND

The matter arises out of an ATV accident that took place on a private roadway in Worth Township, Centre County, Pennsylvania. Plaintiffs seek to recover for injuries Mr. Neff sustained in the accident and for loss of consortium for Mary Neff. The complaint alleges PennDOT created a dangerous condition of the roadway when it had a fence constructed over the roadway’s entire width and failed to warn of the dangerous condition thus created. PennDOT held an easement over the roadway east of the fence and held the roadway west of the fence in fee simple. The fence was erected along the easement boundary. Mr. Neff’s accident occurred on the eastern, easement side of the fence. The complaint also alleges negligence on the part of NESL, the company that installed the fence.

PROCEDURAL HISTORY

Plaintiffs initiated this lawsuit by filing a writ of summons on or about June 25,2007, naming PennDOT and NESL as defendants. The complaint was filed on or about August 27,2007. Defendants filed their answer and new matter on or about October 9,2007. Plaintiffs replied to the new matter on or about October 26,2007. Defendants filed the present motion for summary judgment on or about February 17, 2009.

DISCUSSION

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

“Pennsylvania law provides that summary judgment may be granted only in those cases in which the record clearly shows that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. The moving party has the burden of proving that no genuine issues of material fact exist. In determining whether to grant summary judgment, the trial court must view the record in the light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Thus, summary judgment is proper only when the uncontroversial allegations in the pleadings, depositions, answers to interrogatories, admissions of record and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. In sum, only when the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment.” Barnish v. KWI Building Co., 916 A.2d 642, 645 (Pa. Super. 2007). Rule 1035.2 of the Pennsylvania Rules of Civil Procedure provides that where the non-moving party bears the burden of proof, that party must present facts sufficient to establish a prima facie case. Pa.R.C.P. 1035.2(2). Mere issues of fact are insufficient to defeat the motion. The non-moving party must produce admissible evidence to controvert the motion. Id.

Defendants raise two grounds for summary judgment: sovereign immunity and failure to produce evidence of facts essential to the cause of action. Plaintiffs claim that PennDOT negligently caused the erection of a right-of-way fence and failed to warn Mr. Neff of the existence of the fence. Plaintiffs allege that PennDOT had a duty to place warnings concerning the fence on the border between the Crain estate’s portion of the roadway and PennDOT’s fee simple portion of the roadway. Plaintiffs also claim NESL was negligent for the same failure to warn and had a duty to place warnings as well. Plaintiffs further claim a contract exists between PennDOT and NESL and that NESL’s conduct caused or contributed to Mr. Neff’s injuries.

I. Sovereign Immunity

The Commonwealth of Pennsylvania and its agencies enjoy immunity from civil suit unless immunity has been specifically waived. 42 Pa.C.S. §8521(a). Sovereign immunity has been waived by the legislature in nine specific areas as set forth in 42 Pa.C.S. §8522(b). One of the exceptions is found at 42 Pa.C.S. §8522(b)(4), which provides:

“(b) Acts which may impose liability. — The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised to claims for damages caused by:...
“(4) Commonwealth real estate, highways and sidewalks. — A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of a Commonwealth agency and Commonwealth real property leased by a Commonwealth agency to private persons, and highways under the jurisdiction of a Commonwealth agency.”

PennDOT holds the roadway west of the fence and the land on which the fence was erected in fee simple. PennDOT also holds an easement over the land on which the roadway runs east of the fence.

PennDOT relies on two cases in arguing that the real estate exception does not apply to the case at bar and that summary judgment should be granted. To this end, defendants argue that there is a difference between “causing” an injury and merely “facilitating” an injury. First, PennDOT relies on Cowell v. PennDOT, 883 A.2d 705 (Pa. Commw. 2005), in which the Pennsylvania Commonwealth Court held that the real-estate exception did not apply to injuries sustained by occupants of a vehicle that was struck by an object thrown onto their car by a juvenile standing on an overhead bridge. The court held that neither the bridge nor an artificial condition caused the plaintiff’s injuries and that the injuries were caused by the actions of a third party. The second case on which PennDOT relies is Pennsylvania State Police v. Klimek, 839 A.2d 1173 (Pa. Commw. 2003), in which a claim of negligence was brought against a police department for the death of an arrestee who hanged himself in a holding cell. The issue in Klimeclc was the jailer’s duty to the arrestee, and the court only touched on the issue of the real property exception as it relates to the Commonwealth’s ownership of the jail cell. The court found that the plaintiff’s allegations did not “make out a cause of action that it was a ‘dangerous condition of’ the cell that was the direct cause of decedent’s death when he committed suicide.” Klimek, 839 A.2d at 1176.

The court determines defendants’ argument that there is a distinction between facilitating and causing an injury is a distinction without a difference as it pertains to the case at bar. Factual cause is conduct that plays a real role in causing injury. Pa. SSJÍ (Civ.) §3.15. Facilitating the injury has the same effect in this case. The court determines defendants could be liable for plaintiff Mr. Neff’s injuries even without Mr. Neff actually striking or coming into contact with the real estate of the Commonwealth or anything erected on it. Accordingly, the court determines the requirements of the Real Estate Exception to Sovereign Immunity, 42 Pa.C.S. §8522(b) (4), have been met.

II. Failure To Produce Evidence of Facts Essential to the Cause of Action

Defendants maintain plaintiffs have produced no evidence to support the claim that Mr. Neff’s injuries were caused by the negligence of NESL. Defendants argue that there is no evidence NESL breached any general standard of care in the contracting industry and that there is no evidence that NESL breached any of the duties assumed through its contract with PennDOT. Plaintiffs maintain their cause of action for negligence against NESL for placing an obstacle in the roadway lies against governmental and non-govemmental actors alike. Plaintiffs argue NESL was not a passive agent of PennDOT and thus had duties toward more parties than just PennDOT itself. Plaintiffs aver that NESL was involved in the creation of an artificial condition on the land and the common law charged it with a duty to act non-negligently when its conduct placed others in peril.

Under Pennsylvania law, a contractor has a duty to act without negligence. St. Clair v. B & L Paving Company,

270 Pa. Super. 277, 279, 411 A.2d 525, 526-27 (1979). This duty extends to those who are “within the foreseeable orbit of risk of harm.” Doyle v. South Pittsburgh Water Company, 414 Pa. 199, 207, 199 A.2d 875, 878 (1964).

The court determines the question of whether NESL breached its duty to the plaintiffs is a question for the finder of fact. Accordingly, summary judgment is inappropriate and defendants’ motion is denied.

Accordingly, the following is entered:

ORDER

And now, May 11,2009, upon consideration of defendants’ motion for summaiy judgment, defendants’ motion is denied.


author: LASH, J.,

text:
    Orange Stones Co. v. Borough of Hamburg Zoning Hearing Board

      Daniel F. Schranghamer, for appellant.

      Charles F. Fitzpatrick, for appellee Borough of Hamburg Zoning Hearing Board.

      James E. Gavin, for intervenor Borough of Hamburg.
    April 29, 2009
   LASH, J.,

The matter before this court is the land use appeal filed by appellant, Orange Stones Company, from a decision entered by the Borough of Hamburg Zoning Hearing Board dated October 2008, denying the application of Orange Stones for a zoning permit. Orange Stones had submitted a permit application to the Borough of Hamburg for a proposed use stated in the application to be a “68-bed inpatient, non-hospital rehabilitation center for drug and alcohol persons with 16-bed halfway house.” The board denied the application on the basis that the premises was situate in a flood plain and that the contemplated uses constituted a “hospital” and a “jail or prison,” both of which are prohibited by the zoning ordinance from being constructed within a floodplain.

Orange Stones, formerly known as Alcat Reentry Centers Inc., is the owner of real property (premises) located at 215 Pine Street, in the Borough of Hamburg, Berks County, Pennsylvania. The premises is located in a VC borough and village center zoning district as defined by the Borough of Hamburg Zoning Ordinance. The premises is located in a “zone AE” within the floodplain boundary of a 100-year floodplain.

On or about June 17, 2008, Orange Stones submitted an application for a zoning permit for the premises. In the application, the proposed use was described as “first floor: 68-bed inpatient, non-hospital rehabilitation center for drug and alcohol persons with 16-bed halfway house.”

After consideration of the application, the borough zoning officer issued correspondence to Orange Stones, dated July 10, 2008, denying the application. Among other concerns raised, the zoning officer found that the proposed use is prohibited under section 508.8.7.1.a of the zoning ordinance because the proposed use meets the definition of hospital. In making this finding, the zoning officer found that the proposed use would include a detoxification facility, a conclusion he reached based upon consideration of a previous application filed by Orange Stones on June 2, 2008, which specifically included a listing of detoxification facilities as a proposed use.

Orange Stones then appealed to the board, who held hearings on August 26, 2008 and September 29, 2009. In its decision, dated October 2008, the board denied the appeal on the basis that the proposed use violated section 508.8.7 of the zoning ordinance. Specifically, the board determined that the proposed use was within the definition of a “hospital,” because it included a detoxification unit. Secondly, the board determined that the “halfway house” use constituted use of the premises as a “jail or prison.” Third, the board found that the premises was located within a floodplain. Because section 508.8.7 of the Hamburg Zoning Ordinance prohibits the construction, enlargement or expansion of any structure located within a floodplain for a hospital, jail or prison use, the application was denied. This appeal followed.

This court’s standard of review, having taken no additional evidence, is limited to determining whether the zoning hearing board abused its discretion or committed an error of law. Center City Residents Association v. Zoning Board of Adjustment, 48 Pa. Commw. 416, 410 A.2d 374 (1980). As stated in Zoning Hearing Board of Sadsbury Township v. Board of Supervisors of Sadsbury Township, 804 A.2d 1274, 1278 (Pa. Commw. 2002): merit, 501 Pa. 550, 462 A.2d 637 (1983). Teazers Inc. v. Zoning Board of Adjustment, 682 A.2d 856 (Pa. Commw. 1996). Upon reviewing a decision of a zoning hearing board, a court may not substitute its judgment for that of the board; and, assuming the record demonstrates substantial evidence, the court is bound by the board’s findings which result from resolutions of credibility and the weighing of evidence rather than a capricious disregard for the evidence. Vanguard Cellular System Inc. v. Zoning Hearing Board, 130 Pa. Commw. 371, 568 A.2d 703 (1989), petition for allowance of appeal denied, 527 Pa. 620, 590 A.2d 760 (1990).”

“An abuse of discretion will be found only if the zoning board’s findings are not supported by substantial evidence, that is, such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Valley View Civic Association v. Zoning Board of Adjust-

In the within appeal, Orange Stones argues that the board erred in finding that the proposed use constituted a hospital, because its determination was based solely on the board’s incorrect belief that the use would include detoxification facilities. The detoxification facility use was referenced solely in the application filed by Orange Stones on June 2, 2008, which application was subsequently withdrawn. The within application dated June 17, 2008 made no reference to including detoxification as a use for the facility. Further, the evidence presented by Orange Stones at the hearing specifically set forth that the premises would not be used for a detoxification facility.

Secondly, Orange Stones contends that the board erred in considering whether a halfway house falls within the definition of a jail or prison. Orange Stones argues that this matter was decided in its favor by the zoning officer who, while, denying the application for other reasons, did not list the halfway house use as a basis for the denial. Accordingly, the board exceeded its authority in considering this issue, then denying the application on that basis. In the alternative, Orange Stones urges that the matter should be remanded to provide a record necessary to establish that the halfway house use does not fall within the definition of a jail or prison.

Initially, we reject Orange Stones argument that the board wrongfully considered whether the proposed halfway house use falls within the definition of “jail or prison.” A zoning hearing board is a quasi-judicial body which performs “formal fact-finding and deliberative functions in a manner similar to that of a court.” Kennedy v. Upper Milford Township Zoning Hearing Board, 575 Pa. 105, 121, 834 A.2d 1104, 1114 (2003). Accordingly, its functions include conducting a hearing and receiving evidence from which the factual findings are drawn. The hearing being conducted is a de novo hearing. See East Allegheny Community Council v. Oncology-Hematology Associates, 783 A.2d 375, 379-80 (Pa. Commw. 2001). As such, all issues pertinent to the matter at hand may be considered. Here, the application for a zoning permit contemplates a proposed halfway house use. The propriety of such a use is, therefore, properly before the board. The fact that the zoning officer did not comment on this proposed use or use it as a basis for his denial, is not dispositive.

We turn then to Orange Stone’s concern on whether the record is sufficient to make a determination on whether the contemplated “halfway house” constitutes a j ail or prison. We agree that the record is not extensive. The record establishes that Orange Stones would enter into an agreement with the federal government, whereby federal prisoners would be transferred from a federal facility to the Orange Stones facility for the purpose of “serving out the last part of their sentence,” where they would learn “life skills and job placement.” Nothing was presented regarding the method of operations, such as the nature and extent of security, the specific types of programs to be offered, and the extent of the prisoners’ freedoms and restrictions, among other things.

Nevertheless, the record is sufficient to proceed. Since the proposed clients are federal prisoners, their status, eligibility for placement, and other pertinent concerns are governed by the procedures set for the Federal Bureau of Prisons. Under these procedures, a halfway house is considered “community confinement,” defined in 28 C.F.R. §570.20 (2008) as:

“[Rjesidence in a community treatment center, halfway house, restitution center, mental health facility, alcohol or drug rehabilitation center, or other community correctional facility (including residential reentry centers); and participation in gainful employment, employment search efforts, community service, vocational training, treatment, educational programs, or similar facility-approved programs during non-residential hours.”

Under 28 C.F.R. §570.21 (2008), “Inmates may be designated to community confinement as a condition of pre-release custody and programming during the final months of the inmate’s term of imprisonment, not to exceed 12 months.”

We see from these definitions that community confinement qualifies in appropriate cases, for partial service of a prisoner’s “term of imprisonment.” Additionally, this confinement is considered “residential.” Accordingly, although the nature and extent of the prisoner’s freedoms, including the hours he would be permitted off-site, were not presented for the record, it is apparent that the prisoner would nevertheless be serving a sentence, considered to be confined, and required to be present at the facility when not engaged in a program.

The zoning ordinance does not define “prison” or “jail.” However, the term “prison” is defined in the Pennsylvania Code as a place, institution, building (or part thereof), set of buildings or area (whether or not enclosing a building or set of buildings) that is used for the lawful custody of individuals. From the definition, it appears the elements needed to meet the definition of “prison” are basic: (1) a facility which is (2) used for governmental custody of individuals.

It is apparent, therefore, even with this scant record, that the 16-bed halfway house use falls within the definition of jail or prison. As stated by the United States District Court for the Middle District of Pennsylvania, a “community confinement center is unquestionably a ‘correctionalfacility.’”Serafini v. Dodrill, 325 F. Supp.2d 535, 537 (M.D. Pa. 2004). We find that the board was correct in making this determination, and the appeal must be dismissed.

We enter the following order:

ORDER

And now, April 29,2009, upon consideration of the land use appeal of appellant, Orange Stones Company, response thereto, briefs filed by the parties, consideration of the record, and after argument held, the decision of the Borough of Hamburg Zoning Hearing Board entered on October 2008 is affirmed. The appeal is hereby dismissed.

      . Ordinance number 725-04 of the Borough of Hamburg.

      . We note that the initial application was filed in the name of Alcat Reentry Centers Inc. However, for sake of clarity, at all times, we shall refer to the appellant as Orange Stones.

      . Section 508.8.7.1 of the zoning ordinance states:
      “Identification of activities requiring a special permit. In accordance with the Pennsylvania Floodplain Management Act (Act 1978-166) and regulations adopted by the Department of Community and Economic Development as required by the Act, the following obstructions and activities are prohibited if located partially or entirely within any identified floodplain district:
      “1. The commencement of any of the following activities or the construction, enlargement or expansion of any structure used, or intended to be used, for any of the following activities:
      “a. Hospitals
      “b. Nursing homes
      “c. Jails or prisons.”

      . Scott Snyder, secretary/treasurer of Orange Stones, notes of testimony, 8/26/08, p. 79.

      . 37 Pa. Code §95.220a.

      . Accordingly, we do not address the question on whether the proposed use constitutes a “hospital.”


author: SCHMEHL, J.L., P.J.,

text:
    Commonwealth v. McFarlin

      Alisa R. Hobart, assistant district attorney, for Commonwealth.

      J. Allen Daringer, for defendant.

      Michael Dautrich, trial attorney for defendant.
    May 19, 2009
   SCHMEHL, J.L., P.J.,

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

This case arose from the January 21, 2001 shooting death of Jaime Dvorak. On January 21, 2001, Police Officer Craig Ziemba, Reading Police Department, in the City of Reading, Berks County, Pennsylvania, was on patrol when he got a call to respond to a shooting at 1259 North 10th Street in Reading. Upon Officer Ziemba’s arrival at the scene just before noon, Jaime Dvorak (the victim), had already been pronounced dead by ambulance personnel. Officer Ziemba located the victim sitting on the steps of the building’s interior stairwell, close to apartment number 4, which she shared with the defendant/petitioner, Shauvin McFarlin. The victim had a towel on her shoulder, and there was a blood spatter on the wall close by.

Police Sergeant Donald Matz, Reading Police Department, was also called to the crime scene just before noon on January 21, 2001. While collecting evidence in the apartment, Sergeant Matz collected a cartridge casing from behind a couch which had been moved away from the outside door it blocked in the apartment. The spent .38 caliber cartridge casing was of the kind typically expelled by a revolver-type firearm. The bullet later removed from the victim was determined by the Pennsylvania State Police lab to be of a .38 or .357 caliber. It was also later determined by the forensic pathologist that the victim had been shot through the upper left part of her back, and the bullet struck her lung and pulmonary artery, resulting in internal bleeding which led to her death.

The defendant and victim shared the apartment with Heather Dvorak, the victim’s sister, and her boyfriend, Gary Higgins. The apartment lease was in the name of Heather Dvorak and Higgins, and the defendant and victim were staying there temporarily. At trial, Higgins said that he had smoked marijuana the night before the murder as well as the night prior to that. He also said that during the morning of January 21, 2001 he was at the apartment when the victim and the defendant left the apartment to go to McDonald’s. Higgins said that after the defendant and victim returned from McDonald’s, they both entered and then re-exited the apartment. The defendant and victim were arguing, something which Higgins and the victim’s sister, Heather Dvorak, said the defendant and victim did several times every week.

Higgins said the arguing on January 21, 2001 was audible from inside the apartment where he was playing videogames. When the arguing got louder, Higgins paused his videogames. He then heard the defendant say “Why did you do that?” followed by a bump on a wall and then a gunshot, after which he heard the victim say something to the effect of “Why did you shoot me?” Higgins said he got up and locked the apartment door, and then opened the door when he heard the victim knocking on it. Higgins said the victim was bent over, with blood coming out of her mouth, and said “Oh my God, Gary, Shawn just shot me. Call 911. I’ll be alright.” Higgins called 911, then got a towel and put it on the victim’s shoulder.

Police Officer Felix Carr of the Reading Police Department testified at trial that he saw the defendant in the area of the shooting on January 21, 2001. Officer Can-said that on that day, he was dropping his wife off at her job at the district justice office in Reading, at approximately 11:34 a.m. In front of the building, he saw a young male standing by the District Justice Building, which is located near the apartment at 1259 North 10th Street in Reading. Officer Can said he later recognized that young male as the defendant when he saw the defendant’s photograph in the newspaper two days later.

In a statement given to the Reading Police Department by Stephen Skinner, a friend of the defendant, Skinner said that the defendant told him he had stayed at a relative’s house the night after the shooting. Skinner said the defendant had confessed to the shooting to him the day after, when the defendant stopped at his house. At trial, however, when Skinner was questioned about the statement he gave, he said that he had not given portions of the statement as they were written, and that the defendant had not confessed to him. At trial, witness Larry Veney testified that while he and the defendant were incarcerated together, the defendant asked him for advice on his case, and that the defendant confessed to the murder.

B. Procedural Background

The defendant was charged with murder of the first degree and related offenses in connection with the January 21, 2001 shooting death of Jamie Dvorak, his girlfriend and the victim. Defendant was represented at trial by Michael Dautrich, Esq. At the conclusion of the jury trial on March 14,2002, in the Berks County Court of Common Pleas, the defendant was convicted of four crimes: murder of the first degree; aggravated assault; possession of the instrument of a crime with intent; and firearms not to be carried without a license.

Accordingly, on April 10, 2002, this court sentenced the defendant to life in prison. On April 22, 2002, Attorney Dautrich filed a motion for entry of judgment of acquittal/arrest of judgment or, in the alternative for a new trial, which this court denied on April 26, 2002. Attorney Dautrich then filed a notice of appeal to the Superior Court of Pennsylvania, following which this court’s judgment was affirmed. On June 25, 2004, the Supreme Court of Pennsylvania denied defendant’s petition for allowance of appeal.

The defendant then filed a petition for post-conviction collateral relief on May 19, 2005. This court appointed Gail Chiodo, Esq. as counsel, and she was subsequently granted leave to withdraw her appearance on June 21, 2007. Also on June 21, 2007, this court appointed Lara Glenn Hoffert, Esq. as counsel, and she was subsequently granted leave to withdraw her appearance on January 7,2008. This court then appointed J. Allen Daringer, Esq. as counsel on January 7,2008. The defendant submitted his own Post Conviction Relief Act petition, following which a PCRA hearing was held in this matter on July 1,2008, at which Attorney Daringer represented the defendant. Both the Commonwealth and the defendant then submitted corresponding briefs. Following this court’s December 31,2008 order dismissing defendant’s PCRA petition, defendant filed a “concise statement of errors complained of on appeal pursuant to Rule 1925(b) of the Pa.R.A.P.” on April 2, 2009.

II. DISCUSSION

The defendant bases his concise statement on the following three assertions:

(1) The PCRA court erred when it did not find trial counsel ineffective when he “rejected defendant’s version of the events,” in that defendant referred to the shooting as accidental, and thus trial counsel did not pursue the defendant’s trial strategy to term the shooting accidental;

(2) The PCRA court erred when it did not find trial counsel ineffective when he advised the defendant that his prior record could be admissible at trial, if the defendant were to testify at trial; and

(3) The PCRA court erred when it did not find trial counsel ineffective when he did not cross-examine witness Larry Veney in order to demonstrate that witness’ possible bias and hope for favorable treatment from the prosecutor.

In order for a PCRA alleging ineffectiveness of counsel to be successful, there are three points that the petitioner must prove. First, a petitioner must show that the underlying claim is of arguable merit. Second, a petitioner must show that trial counsel’s strategy did not have a reasonable basis to effectuate the client’s interests. Third, a petitioner must show that trial counsel’s strategy caused the petitioner prejudice, such that the outcome of the case would have been different if not for counsel’s purported ineffectiveness. This test requires that the approach of trial counsel be evaluated in light of the available alternatives, and a finding of ineffectiveness is only made when the alternative approach would have offered a potential for success substantially greater than the tactics used. When the court examines whether counsel’s actions or omissions were reasonable, “we do not question whether there were other more logical courses of actions which counsel could have pursued: rather, we must examine whether counsel’s decisions had any reasonable basis.” Where it is clear that a petitioner has failed to meet any of the three, distinct prongs of the test enumerated in Pierce, the claim may be disposed of on that fault alone, without a determination of whether the other two prongs could have been met.

A. The Use of Accidental Shooting Strategy, Rather Than an Insufficiency of the Evidence Strategy, in the Context that Trial Counsel “Rejected Defendant’s Version of the Events ”

In his concise statement, defendant complains that the trial court erred when it did not find that trial counsel Attorney Dautrich inserted his “own version” of the facts. At the PCRA hearing, defendant explained further that he believed this error occurred when trial counsel did not utilize defendant’s suggested strategy that the shooting was accidental. There is nothing in the record to indicate that trial counsel inserted a version of facts at odds with evidence presented. Instead, the trial and hearing records reflect that trial counsel weighed defendant’s version of the murder, and found it would not be credible in front of a jury, as further described below.

If trial counsel Attorney Dautrich had pursued a trial strategy of describing the shooting as accidental, rather than the defense strategy trial counsel did pursue, he then would have had to pursue at least a lesser degree of murder for the defendant. At trial, Attorney Dautrich pursued the defense that the Commonwealth did not meet its burden of proof in showing that the shooter was the defendant, which left open the possibility that the shooter could have been someone else. It was a viable strategy at that time to try to show that the burden of proof had not been met, and to pursue a jury verdict of not guilty, rather than to pursue the accidental shooting theory, which would have included admitting pointing a loaded gun at the victim, thereby minimizing any chance of an acquittal.

Accidental shooting was not a good strategy for many reasons, including those discussed below. Further, the two strategies, an accidental shooting versus insufficiency of the evidence, are clearly mutually exclusive, such that they could not have both been pursued at the same time. As such, Attorney Dautrich appears to have chosen the strategy which, in his opinion, seemed the most viable to him as the case proceeded. This strategy was valid, and thus, defendant’s claim to the contrary is not of arguable merit.

Additionally, it is logical that Attorney Dautrich pursued the burden of proof strategy in that this was reasonably of far greater plausibility to the jury than the strategy of an accidental shooting. Considering the tumultuous relationship between the defendant and his girlfriend, the victim, it is reasonable that a jury might not have believed that the shooting was accidental. There was ample testimony at trial from eyewitnesses that they had seen the defendant hit and strangle the victim during arguments long prior to the shooting. The autopsy report corroborated such testimony with notations that the victim had extensive bruises on her face, arms and legs.

Defendant argues further that witness testimony as to defendant’s guilt defeated Attorney Dautrich’s strategy, in that witness testimony from the scene of the murder exclusively went to defendant’s responsibility for the shooting, without any other exculpatory witness testimony. Despite the witness testimony given at trial which pointed toward the defendant’s guilt for the murder, it was still reasonable for Attorney Dautrich to pursue the defense of insufficiency of the evidence. There was no “eyewitness” to the shooting. The only witness testimony came from Gary Higgins, whom the defense theorized was a possible alternative shooter, and therefore would have had a motive in providing testimony as to what he claimed he heard the defendant and his girlfriend say. At trial, Attorney Dautrich did cast doubt on how well the only “ear” witness actually could have heard the argument, considering that he, Higgins, was in the other room, with the door closed, and also did not see who was coming in and out of the apartment. Attorney Dautrich also cast doubt on the credibility of Higgins by highlighting the fact that the witness had smoked a marijuana cigar the night prior, and implied may not have had reliable impressions of the events on the day of the shooting.

Additionally, in order to pursue this accidental shooting theory, the defendant would have had to take the stand. As discussed below, Attorney Dautrich had reasons to counsel the defendant not to testify at trial. Further, trial counsel was concerned that the defendant would make a poor witness. The defendant’s testimony would have been necessary and critical for a defense of accidental shooting. Another reason why Attorney Dautrich did not pursue the accidental shooting theory, as Attorney Dautrich discussed at the PCRA hearing, was in order to exclude a potential witness who would have said that the defendant had drawn a gun on him in the apartment building hallway a few days prior to the murder of the victim. Again, for all of these reasons, trial counsel had a sound approach in the view of the court.

Although defendant asserts that trial counsel’s strategy was somehow “fabricated,” the defense of lack of evidence is always a viable defense. The trial strategy was that the Commonwealth did not meet its burden of proof, and that there was insufficient evidence to support a jury’s decision that the defendant was guilty beyond a reasonable doubt. Further, the strategy was that no jury should convict someone of murder based on the evidence presented in this case. That argument, itself, was a reasonable trial strategy.

In preparing a defense, Attorney Dautrich’s strategy had a reasonable basis, and was designed to effectuate his client’s interests. Further, defendant did not show that Attorney Dautrich’s strategy has met either of the remaining requirements of the three-part ineffectiveness of counsel test necessary to grant relief.

B. The Choice of Defendant Not To Testify at Trial, and Advice As to Admissibility ofPrior Record

In his concise statement, defendant alleges that this court erred when it did not find that Attorney Dautrich did not adequately counsel him in making the decision not to testily at trial. Particularly, defendant says that he was misinformed as to the admissibility of his prior record, when he was told that his prior conviction for involuntary manslaughter could be admissible at trial if he were to testify.

The defendant had two prior convictions in relation to the death of his infant child: one for involuntary manslaughter, and one for endangering the welfare of a child. This court found that while it was not likely that the defendant’s prior conviction for involuntary manslaughter would be admitted at trial were the defendant to testify, there was enough of a chance of its admission that trial counsel’s advice of its possible admission had a reasonable basis. Furthermore, this court found that the defendant’s prior conviction for endangering the welfare of a child would be admissible to rebut any assertions of the peacefulness, lawfulness, or non-violent aspects of the defendant’s character, and as such could have been readily admissible.

As Attorney Dautrich testified at the PCRA hearing, he thought the Commonwealth had a “fair likelihood” of bringing either the involuntary manslaughter or the endangering the welfare of a child conviction in at trial if the defendant were to testify. Depending on how the defendant testified if he had taken the stand, there was a real possibility that his prior conviction for endangering the welfare of a child might have been admissible on cross-examination if: the defendant volunteered evidence of peacefulness of character or accidental shooting and thus would have been subject to cross-examination regarding his conviction for endangering the welfare of a child; or, if he volunteered information that was at variance with his prior conviction for involuntary manslaughter. Although it was more likely that the endangering the welfare of a child conviction would be admitted than would the involuntary manslaughter conviction, it was reasonable counsel to advise the defendant that either could be admitted at trial, such that it would be prudent for the defendant not to testify. These reasons for the defendant not to testify, along with the many other reasons Attorney Dautrich described at the PCRA hearing, described in the preceding and following sections of this memorandum opinion, certainly had a reasonable basis in the opinion of this court, and as such, this court did not find Attorney Dautrich ineffective.

A criminal defendant’s decision not to testify is protected by the Fifth Amendment of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution. It is well-established that a defendant who made a knowing, voluntary, intelligent waiver of testimony may not later claim ineffective assistance of counsel for failure to testify. In this case, the decision not to testify was clearly the defendant’s. This court conducted a colloquy of the defendant on the record, although there is no express requirement that a trial court do so with a criminal defendant who chooses not to testify.

The defendant was provided with safeguards to ensure his decision not to testify was his own. The trial record shows that the court conducted a colloquy to determine that the defendant made this decision not to testify knowingly, and of his own free will. During the colloquy, this court asked the defendant whether he understood that his counsel planned to rest his case, that the defendant would not be called as a witness on his own behalf, and that he had the absolute right not to testify. The defendant was also asked whether he had any questions for the court as to his decision not to testify, whether he had discussed the decision with his attorney, and whether he understood that it was his decision alone, and not his attorney’s decision, as to whether he would testify. Lastly, the defendant was asked whether he wanted to testify, to which he replied in the negative.

C. The Degree To Which Trial Counsel Questioned Commonwealth Witness Larry Veney

In his concise statement, defendant argues that the trial court erred when it did not find Attorney Dautrich was ineffective because he did not thoroughly cross-examine the Commonwealth witness Larry Veney. Witness Veney knew the defendant from their imprisonment together, and he himself offered to the Commonwealth that he would testify against the defendant. The record shows that Witness Veney wrote a number of letters to the district attorney, which the defendant claims indicated that Witness Veney’s willingness to testify against the defendant might have been partially motivated by an interest in gaining assistance in his own case. Based on this allegation, the defendant claims that because trial counsel did not cross-examine Witness Veney on every letter, then trial counsel failed to demonstrate the possible bias in Witness Veney’s testimony.

At trial, Attorney Dautrich adequately demonstrated the likely bias in Witness Veney’s testimony, even without detailing the contents of every letter Witness Veney had previously sent to the district attorney. Trial counsel, in questioning Witness Veney, illustrated that Witness Veney had likely solicited information from the defendant in order to curry favor with his own prosecutors. Trial counsel referenced the multiple letters Witness Veney sent to the district attorney. The jury knew that Veney was testifying for the purpose of getting favorable treatment in his own case. Trial counsel also raised inconsistencies in Witness Veney’s description at trial, both during direct and cross-examinations, of his criminal record and use of pseudonyms. These inconsistencies cast doubt as to the reliability of Witness Veney as a witness. Furthermore. Dautrich described at the PCRA hearing how Witness Veney undermined his own credibility by poor presentation. Further, Attorney Dautrich questioned Witness Veney as to his criminal history, an additional means of casting doubt on his credibility. A final reason that Attorney Dautrich thought it either unnecessary or imprudent to examine Witness Veney about every letter sent to the district attorney was that the letters contained numerous criticisms of the mental state and unrepentant mindset of the defendant, and posed a risk of unfavorable testimony against the defendant and provided a sound reason to exclude large parts of the letters.

We found the overall cross-examination of Witness Veney to clearly be a satisfactory representation of the defendant at trial. Therefore, defendant did not meet his burden of proof in his ineffectiveness of counsel claim on this third matter. Trial counsel’s approach had a reasonable basis in his strategy, which was designed to effectuate his client’s interests, and does not meet defendant’s claim of ineffectiveness of counsel.

As such, for the above-stated reasons, this court respectfully recommends that the instant appeal be denied.

      . All portions of the “factual background” section here are taken from the notes of transcript of trial, held on March 7, 11, 12 and 14, 2001.

      .18 Pa.C.S. §2502(a), 18 Pa.C.S. §2702(a)(l), 18 Pa.C.S. §907(a) and 18 Pa.C.S. §6106(a), respectively.

      . In defendant’s concise statement of errors complained of on appeal, defendant’s third alleged error was that “[t]he PCRA court erred in not cross-examining a witness (Larry Veney) on his hope for favorable treatment. . . .” For purposes of this memorandum opinion, this court has presumed that the defendant instead intended that the third alleged error should have read: “[t]he PCRA court erred in not finding that trial counsel provided ineffective assistance of counsel in not cross-examining a witness (Larry Veney) on his hope for favorable treatment....”

      . Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

        . Id. at 159, 527 A.2d at 976.

      . Commonwealth v. Steele, 599 Pa. 341, 360, 961 A.2d 786, 797 (2008) (emphasis in original) (citing Commonwealth v. Rios, 591 Pa. 583, 599, 920 A.2d 790, 799 (2007)).

      . Id. (citing Commonwealth v. Basemore, 560 Pa. 258, 294 n.23, 744 A.2d 717, 738 n.23 (2000)).

      . Notes of transcript, pp. 221-36, trial, March 7, 2002.

      . Notes of transcript, pp. 222-23, trial, March 7,2002.

      . Notes of transcript, p. 34, PCRA hearing, July 1, 2008.

      . Notes of transcript, p. 49, PCRA hearing, July 1, 2008.

      . 18 Pa.C.S. §2504(a) and 18 Pa.C.S. §4304.

      . Notes of transcript, pp. 9-12, 26, pretrial hearing, March 1, 2002.

      . Notes oftranscript, p. 26, PCRAhearing, July 1,2008. (emphasis added)

      . Commonwealth v. Hernandez, 862 A.2d 647, 651 (Pa. Super. 2004) (describing how the defendant volunteered that since he became a junkie, he had never sold drugs, at odds with his prior convictions for possession with intent to deliver heroin) (citing Commonwealth v. Trignani, 334 Pa. Super. 526, 483 A.2d 862 (1984)) (describing a voluntary quip by defendant during cross-examination that he never shot anyone in his life, in conflict with his prior conviction for aggravated robbeiy where a store clerk was shot) (citing Commonwealth v. Bastone, 211 Pa. Super. 509, 239 A.2d 863 (1968)) (quoting the information volunteered by defendant on direct examination that he never robbed anyone in his life) (citing Commonwealth v. Petrulli, 182 Pa. Super. 625, 128 A.2d 108 (1956)) (quoting the information volunteered by defendant on direct examination that he had never been convicted of a crime in that particular court).

      . Commonwealth v. Wright, 599 Pa. 270, 308, 961 A.2d 119, 141 (2008).

      . Commonwealth v. Lawson, 762 A.2d 753, 755 (Pa. Super. 2000).

      . Commonwealth v. Todd, 820 A.2d 707, 712 (Pa. Super. 2003).

      . Notes of transcript, pp. 181-83, trial, March 11, 12, and 14, 2002.

      . Id

      . Id.

      . Id.

      . Notes of transcript, p. 130, trial, March 11, 12, and 14,2002.

      . Notes of transcript, p. 115 (when asked why he was in Berks County Prison, Witness Veney said he was in for a case with his landlord regarding a fridge when he was moving out), p. 113 (Witness Veney said he was on parole, but also in prison), p. 122 (Witness Veney said he also had a 1987 charge for kidnapping, with a maximum/ minimum range of sentencing of six-15 years, for which he got 15, and then was later arrested for receiving stolen property, and that for the instance with the fridge the case went to trial and found not guilty), p. 123 (Witness Veney said he did not use different names in the past), p. 133 (Witness Veney admitted that he had, in fact, used the name Larry Wilson instead of Larry Veney in the past), and pp. 131-32 (Witness Veney said he sent letters to the D.A.’s office, then he sent eight or nine more letters, and that the first letter he sent contained no details about the case at hand, indicating that the first letter was about his own case, and that there was a motive in his description of the supposed confession by the defendant), PCRA hearing, July 1, 2008.

      . Notes of transcript, p. 36, PCRA hearing, July 1,2008 (wherein attorney described how Witness Veney made a poor witness, and his appearance at trial in turquoise-rimmed sunglasses).

      . Notes of transcript, p. 38, PCRA hearing, July 1, 2008.


text:
    Cade v. Cade

      Bernard Mendelsohn, for plaintiff.

      Jill Gehman Koestel, for defendant.
    May 15, 2009
   LASH, J.,

The issue before this court is whether the parties’ child custody proceedings should be heard in Berks County, Pennsylvania, or in the Commonwealth of Kentucky. The parties are the natural parents of a minor child, Olivia G. Cade, bom July 18, 2007. Plaintiff, Keith Andre Cade (Father), is, and has been at all pertinent times, a resident of Berks County, Pennsylvania. Defendant, Heidi Nicole Cade (Mother), is currently a resident of Parksville, Kentucky. The minor child has always resided with Mother.

Mother contends that she and the minor child moved to Kentucky into the home of the maternal grandparents on August 20, 2008, and have resided there ever since. No custody action was initiated in either state until March 2009, when Mother filed in Kentucky, in conjunction with a divorce complaint. Mother argues that since the minor child resided in Kentucky for a period in excess of six months prior to the institution of court proceedings, the provisions of the Uniform Child Custody Jurisdiction Act (UCCJA), establish the Commonwealth of Kentucky as the state with jurisdiction over the within custody issues.

Father disputes Mother’s allegations, claiming that Mother did not move to Kentucky until sometime in early 2009. He was never made aware of Mother’s relocation until he received the divorce and custody documents Mother filed in Kentucky sometime in March 2009. He responded by filing the within action on or about April 2, 2009, requesting that this court make disposition of the child custody issues. Father also argues that under the doctrine of Plowman v. Plowman, 409 Pa. Super. 143, 597 A.2d 701 (1991), Mother was required to file a petition with this court seeking permission to move outside of the jurisdiction prior to doing so.

This court held a hearing on April 29, 2009 to obtain an evidentiary record on the timing of Mother’s relocation. Both Mother and the maternal grandmother testified that Mother and the minor child have resided in Kentucky, in the home of the maternal grandparents, since August 20, 2008. Mother’s testimony was supported by evidence that she contacted the Department of Public Welfare of the Commonwealth of Kentucky to obtain food stamps and medical assistance, and that she contacted the Kentucky Department of Transportation to obtain a driver’s license in the Commonwealth of Kentucky. Further, she notified the Social Security Administration of her change of address to enable them to send the minor child’s benefits checks to Kentucky. All of these notifications took place shortly after the date Mother states she relocated, August 20, 2008.

We find Mother’s evidence to be credible. Both Mother and the maternal grandmother appear truthful in their statements. Further, we find it highly unlikely that Mother would seek welfare benefits in Kentucky if she was still residing in Pennsylvania. Also, transferring the Social Security checks from Pennsylvania to Kentucky, if Mother were still residing in Pennsylvania, would make no sense.

For his part, Father was not able to provide any specifics supporting his belief that Mother did not relocate until January of2009. From July 2008, when the parties became estranged until the time Father received the divorce and custody documentation from Kentucky in March 2009, Father had no contact with the minor child, other than on one occasion in December 2008 at the home of Mother’s grandparents, where Mother had resided prior to her relocation. Father had not heard from Mother, and when he visited with the minor child in December of 2008, he assumed that Mother and the minor child were continuing to reside there. In fact, however, Mother had already relocated to Kentucky, but had returned to Berks County, Pennsylvania, for a visit with her grandparents, and at that time, contacted Father to arrange a visit. She did not advise Father of the relocation, allowing Father to erroneously assume that she and the minor child were still residing with Mother’s grandparents.

Section 5421 of the UCCJA establishes when a court of the Commonwealth of Pennsylvania has jurisdiction to make a child custody determination, providing as follows:

“(a) General rule. — Except as otherwise provided in section 5424 (relating to temporary emergency jurisdiction), a court of this Commonwealth has jurisdiction to make an initial child custody determination only if:
“(1) this Commonwealth is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this Commonwealth but a parent or person acting as a parent continues to live in this Commonwealth;
“(2) a court of another state does not have jurisdiction under paragraph (1) or a court of the home state of the child has declined to exercise jurisdiction on the ground that this Commonwealth is the more appropriate forum under section 5427 (relating to inconvenient forum) or 5428 (relating to jurisdiction declined by reason of conduct) and:
“(i) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this Commonwealth other than mere physical presence; and
“(ü) substantial evidence is available in this Commonwealth concerning the child’s care, protection, training and personal relationships;
“(3) all courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this Commonwealth is the more appropriate forum to determine the custody of the child under section 5427 or 5428; or
“(4) no court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2) or (3).
“(b) Exclusive jurisdictional basis. — Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this Commonwealth.
“(c) Physical presence and personal jurisdiction unnecessary. — Physical presence of or personal jurisdiction over a party or a child is not necessary or sufficient to make a child custody determination.”

Under these circumstances, it is apparent that the Commonwealth of Kentucky has jurisdiction. Kentucky is the home state of the minor child and was so for six months prior to commencement of the proceedings in Kentucky. None of the provisions in the UCCJA confers jurisdiction on the Commonwealth of Pennsylvania. We, therefore, agree with Mother and find that section 5344 of the UC-CJA is dispositive, that Kentucky is the sole state with jurisdiction.

We also find that the holding in Plowman cannot be applied in this case. In Plowman, the Pennsylvania Superior Court determined, to satisfy due process concerns, that when one parent seeks to relocate to another jurisdiction with a child, a full evidentiary hearing should be held either before the child is moved from the jurisdiction or within a reasonable time thereafter. The court specifically stated that it was concerned with the rights of parents to maintain a “continuing and meaningful relationship with their minor children.” The court also noted that where one parent disregards the rights of another or displays antipathy towards the other, it is the court’s responsibility to “ensure fairness of both procedure and result in a custody action.” 409 Pa. Super, at 151, 597 A.2d at 706.

However, before a court can hold an evidentiary hearing, it must have subject matter jurisdiction, which it acquires when one of the parties initiates a custody action. In this case, this court was unable to hold any type of hearing or otherwise respond until April of 2009, when Father filed the within action. By that time, the minor child had been residing in Kentucky for over seven months, sufficiently establishing Kentucky as the minor child’s home state. The courts of Pennsylvania were no longer available to Father.

Father had ample opportunity to file an action in Pennsylvania at a time when Pennsylvania would have had jurisdiction, but did not do so. The fact that Mother had not remained in contact with him, or that Father was unaware that the minor child was now residing in Kentucky, did not preclude him from initiating proceedings with this court prior to the change in the minor child’s home state status.

We enter the following order:

ORDER

And now, May 15, 2009, upon consideration of the request of plaintiff for special relief contained in Count II of the complaint and after hearing held, this court finds that under the provisions of the Uniform Child Custody Jurisdiction Act, the home state of the parties’ minor child is Kentucky, and that Kentucky has sole jurisdiction over the child custody proceedings of the parties. Accordingly, the above-captioned action is hereby dismissed.

      . Docket No. 09-3926, Circuit Court — Family Division, Boyle County, Kentucky.

      . 23 Pa.C.S. §5401, et seq.; KRS 403.400 to 403.630.

      . The minor child suffers from Downs syndrome and receives Social Security benefits.

      . According to Mother’s exhibits, Mother applied for food stamp benefits with the “Cabinet for Health and Family Services Department for Community Base Services” on August 29, 2008. The Social Security residence change was effective August 24,2008.

      . The parties separated in March 2008, but continued to have contact until June or July 2008.

      . We also note that Father had Mother’s cell phone number and could have contacted her. The parties dispute why Father did not stay in touch, Mother claiming that Father had no interest in speaking with her or having a relationship with the minor child, and Father stating that Mother made it clear to him that she did not want him contacting her.


author: KISTLER, J.,

text:
    Walker v. Walker

      Dorothy Walker, pro se.

      Lynn Thomas Walker, pro se.
    April 30, 2009
   KISTLER, J.,

Presently before this court are Dorothy Walker (Wife) and Lynn Thomas Walker (Husband). On October 16, 2008 and April 30, 2009, equitable distribution hearings were held regarding the marital estate. The following opinion determines the value and distribution of the marital assets and debts.

FINDINGS OF FACT

The equitable distribution of marital property is controlled by section 3502 of the Divorce Code, 23 Pa.C.S. §3502 et seq. Under section 3502, this court is bound to consider the following factors in determining the equitable distribution of property:

(1) Length of marriage: Husband and Wife were married on August 26,1989. Later the parties separated, and will be divorced by decree of this court. As both parties were unrepresented, and failed to give the court the standard and necessary information to incorporate into this opinion, but the matter requires resolution, the court will rule without the standard information.

(2) Any prior marriage of either party: Unknown.

(3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each party:

Age: At the time of the equitable distribution hearing, Wife and Husband appear each to be in their middle age.
Health: Unknown.
Station: The parties enjoyed a comfortable lifestyle during their marriage.
Amount and sources of income: Unknown.
Vocational skills/employability: Wife asserts she is unable to work.
Estate: There is no evidence either party expects any significant inheritance or legacy.
Liabilities and needs: There are outstanding marital debts of: Benner Township (real estate taxes) $7,310.35; Allstate Insurance $1,077.68; Allegheny Power $2,126.34; Spring-Benner Joint Authority (water and sewer) $279.50; Citicorp Trust Bank FSB (on marital home) $123,726.76; storage shed rental $425.

(4) The contribution by one party to the education, training or increased earning power of the other party: Unknown.

(5) The opportunity of each party for future acquisitions of capital assets and income: Unknown.

(6) Sources of income for both parties, including, but not limited to medical, retirement, medical, insurance or other benefits: None known.

(7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as a homemaker: There was considerable testimony and evidence to demonstrate that Husband allowed the marital home to waste and dissipate in value. Unpaid bills, deferred maintenance, and incomplete renovations have severely detracted from the expected value and equity of the home. It is unlikely that Husband will correct these dissipations.

(8) The value of the property set apart to each party: Great disputes exist as to the ownership, or even the existence, of many items of personal property. Many items are apparently missing, or deemed by one or both parties to be owned by them outside the marital estate. Conflicts in the testimony are replete on this subject.

(9) The standard of living of the parties established during the marriage: Husband and Wife had a comfortable standard of living during the marriage.

(10) The economic circumstance of each party, including federal, state and local tax ramifications, at the time the division of property is to become effective: There was no testimony regarding the tax implications regarding the division of property.

(11) Whether the party will be serving as the custodian of any dependent minor children: Both parents have dependent children from the union.

(12) The property brought to the marriage by either party: Considerable disagreement exists, without documentation to support any argument, on nearly every item of personal property.

(13) Marital misconduct during the marriage: Unknown.

CONCLUSIONS OF LAW

This court has broad discretion in fashioning an award of equitable distribution of marital property. Twilla v. Twilla, 445 Pa. Super. 86, 664 A.2d 1020 (1995). This court is under no obligation in divorce proceedings to distribute each individual asset according to the determined formula, as long as the total scheme of distribution coincides with the court’s decided upon assessment. Cerny v. Cerny, 440 Pa. Super. 550, 656 A.2d 507 (1995).

The essence of the concept of an equitable distribution is that after considering all relevant factors, the court may “deem just” a division that awards one of the parties more than half, perhaps a lion’s share, of the property. Platek v. Platek, 309 Pa. Super. 16, 454 A.2d 1059 (1982). An equitable distribution does not necessarily mean an equal division. Id. In determining the value of marital property, the court is free to accept all, part, or none of the testimony as to the true and correct value of the property. Litmans v. Litmans, 449 Pa. Super. 209, 673 A.2d 382 (1996).

Marital property must be distributed with reference to value approximate to the date of distribution. Oaks v. Cooper, 536 Pa. 134, 638 A.2d 208 (1994). Unless valuation is impossible because the asset has been consumed or disposed of by one of the parties, a value closer in time to distribution should be used. Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534 (1988).

The purpose of alimony is not to reward one spouse nor to punish the other, but rather to ensure that the reasonable needs of a party going through a divorce, who is unable to support himself or herself through appropriate employment, are met. Alimony following divorce is a secondary remedy and is available only where economic justice and the reasonable needs of the parties cannot be achieved by way of an equitable distribution and development of appropriate employable skills. Nemota v. Nemota, 423 Pa. Super. 269, 620 A.2d 1216 (1993).

DISCUSSION

The condition of the marital residence located at 177 Crestview Drive, Benner Township, Centre County, Pennsylvania, is the principal issue that exists between these parties.

The appraisal of John Curtin, dated August 11, 2008, sets a value for the property of $140,000. Curtin also opines that the property is in “substandard” condition as a result of “deferred maintenance” and other “renovation” which is needed on the property. Curtin opines that the property would have a value of approximately $220,000 or $225,000 if it were in the proper condition for sale. The court is convinced that the loss of value of approximately $80,000 in the home is largely the responsibility of Husband, as he was in sole possession of the property and was responsible for the partially-completed renovations which now detract from the value of the home.

There is evidence that a mortgage exists with Citicorp Trust Bank FSB, and that the mortgage has an indebtedness of $121,385.20 as of February 10, 2009, at a rate of $29.64, since that date. Therefore the total balance due on the mortgage is $123,726.76, as of April 30, 2009 (79 days x $29.64 = $2,341.56 + $121,385.20 = $123,726.76).

In addition to the incomplete renovations, and deferred maintenance, there is evidence of outstanding real estate taxes in the amount of $7,310.35, unpaid insurance on the property of $1,077.68, electric bills in the amount of $2,126.34, and a sewer bill of $279.50. These outstanding balances come to a total of $10,793.87.

Assuming that the home does have a market sales price, once rehabilitated, of approximately $220,000, the 50/50 split of that residence would indicate that each owns approximately $110,000 of its value. Considering the depreciation due to Husband’s lack of care for the property (estimated by Curtin to be $80,000) and the outstanding mortgage balance and the outstanding bills and fees associated with the property while in the possession of Husband ($10,793.87), the court deems that it is equitable to grant title to the real estate to Wife, and to make her responsible for all outstanding charges and fees due, and to defend the foreclosure action.

The other substantial and outstanding issue between the parties is the personal property which has either been divided between the parties, retained by Husband, stored by Husband, lost by Husband, discarded by Husband, or retained by Wife, or lost by Wife.

The court is without schedules and without itemized lists that have any reliability or accuracy such as to assist the court in making this division of personal property. It appears clear that both parties have certain personal property in their possession, although the parties are unable to agree as to what they currently possess or ever possessed. It is also evident that certain items are in storage, and that an outstanding storage bill is due to Nittany Valley Self Storage in the amount of approximately $425.

Again, it appears that granting Wife possession of the property located in the storage shed, and making her responsible for the payment of the outstanding fees due for its storage would be appropriate. Each party may retain the property they currently possess with the exception of the plasma screen T. V. This was the only item that was discussed with certainty and as this item was purchased by Husband after separation, it shall be surrendered to Husband within 30 days.

The court determines that Husband is without sufficient or ample resources to make any significant contribution toward any of the outstanding obligations. Husband has recently been through a personal Chapter 7 bankruptcy and has discharged most of his individual debt in that proceeding.

Wife’s claim for alimony, punitive damages, and assessment of costs are denied as it appears that Husband is without the ability to make any such payments and is unlikely to do so, even in the presence of a court order.

ORDER

And now, April 30, 2009, Lynn Thomas Walker is hereby ordered to execute a deed and any other documents necessary to accomplish the transfer of the real estate located at 177 Crestview Drive, Benner Township, Centre County, Pennsylvania, to Dorothy Walker, within 30 days of this order.

Lynn Thomas Walker will not be responsible for any obligations associated with the marital real estate, and all shall be assumed by Wife, who may elect to either refinance the home or to sell the home.

Furthermore, Lynn Thomas Walker shall within 10 days of the date of this order transfer or assign his lease from the Nittany Valley Self Storage to Dorothy Walker, who shall satisfy the obligations associated with the storage facility and shall be entitled to all of the property held therein.

Furthermore, Lynn Thomas Walker shall within 30 days of the date of this order obtain the plasma screen T.V. from Dorothy Walker.

All other claims between the parties are dismissed for lack of evidence.

A divorce decree shall be issued forthwith.